MANUAL

OF THE
JUDGE ADVOCATE GENERAL
(JAGMAN)

Office of the Judge Advocate General

Department of the Navy
1322 Patterson Avenue, Southeast
Suite 3000
Washington Navy Yard
Washington, DC 20374-5066
 TABLE OF CONTENTS

CHAPTER PAGE

I REGULATIONS IMPLEMENTING AND SUPPLEMENTING

THE MANUAL FOR COURTS-MARTIAL 1-1

II ADMINISTRATIVE INVESTIGATIONS 2-1

III ARTICLE 138 COMPLAINTS--COMPLAINTS OF WRONG 3-1

IV ARTICLE 139 CLAIMS--REDRESS OF DAMAGE TO PROPERTY 4-1

V RELEASE OF GOVERNMENT INFORMATION 5-1

VI DELIVERY OF SERVICEMEMBERS, CIVILIANS, AND DEPENDENTS—

SERVICE OF PROCESS AND SUBPOENAS--STATE TAX AND REGULATORY
AUTHORITY 6-1

VII LEGAL ASSISTANCE 7-1

VIII GENERAL CLAIMS PROVISIONS 8-1

IX AUTHORITY OF ARMED FORCES PERSONNEL TO PERFORM NOTARIAL ACTS 9-1

X INTERNATIONAL LAW 10-1

XI CUSTOMS REQUIREMENTS--DOMESTIC AND FOREIGN 11-1

XII ADMIRALTY CLAIMS 12-1

XIII ENVIRONMENTAL PROTECTION 13-1

XIV PAYMENTS DUE MENTALLY INCOMPETENT MEMBERS, PHYSICAL

EXAMINATIONS OF SUCH MEMBERS, AND TRUSTEE DESIGNATIONS 14-1
__________________________________________________________________________________________________

PREFATORY NOTES

a. The Manual of the Judge Advocate General may be cited as "JAGMAN 0101a(1)" or "JAGMAN A-1-b-(1)."

b. Forms, certain reference material, and technical guides are located in the Appendices, which are keyed by
section number to the relevant chapter.

c. The words "Navy" and "naval" as used in this Manual include the Marine Corps, except where the context
indicates differently.

d. The Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 2002, are referred to
as "UCMJ" and "MCM" respectively in this Manual.
 CHAPTER I Reserve, Fleet Reserve, Fleet Marine Corps Reserve,
REGULATIONS IMPLEMENTING AND and discharged personnel 1-27
SUPPLEMENTING THE MANUAL 0124 Exercise of court-martial jurisdiction in cases tried
FOR COURTS-MARTIAL in domestic or foreign criminal courts 1-29
Section Page 0125 Exercise of court-martial jurisdiction over
major Federal offenses 1-30
0101 Scope 1-9 0126 Determination of status of case as national security
case, investigation of suspected national security
PART A -- NONPUNITIVE MEASURES cases and exercise of jurisdiction in such cases 1-31
0127 Pretrial restraint of accused 1-33
0102 Nonpunitive administrative measures generally 1-9 0128 Forwarding of charges 1-34
0103 Extra military instruction 1-9 0129 Superior competent authority defined 1-34
0104 Administrative withholding of privileges 1-10 0130 Personnel of courts-martial 1-35
0105 Nonpunitive censure 1-10 0131 Standards for determining availability of
requested individual military counsel 1-37
PART B -- NONJUDICIAL PUNISHMENT 0132 [Reserved] 1-40
0133 Additional matters in convening orders 1-40
0106 Authority to impose 1-11 0134 Additional matters in the case of certain
0107 Jurisdiction 1-11 Reserve component personnel 1-40
0108 Limitation on imposition of nonjudicial
punishment 1-12 SUBPART C2 TRIAL MATTERS
0109 Advice to accused prior to imposition of
nonjudicial punishment 1-13 0135 Article 39(a), UCMJ, sessions 1-41
0110 Procedures for imposition of nonjudicial 0136 Delegation of authority to excuse members 1-41
punishment 1-14 0137 Pretrial agreements 1-41
0111 Limitations on and nature of punishments 1-15 0138 Authority to grant immunity from prosecution 1-42
0112 Limitations on nonjudicial punishments to be 0139 Content of immunity requests when approval of the
imposed on reserve component personnel Attorney General is required 1-43
not on active duty 1-16 0140 Post-testimony procedure when authority to grant
0113 Effective date and execution of nonjudicial immunity was obtained from the Attorney General 1-44
punishments 1-16 0141 Personal data and character of prior service
0114 Punitive censure 1-17 of the accused 1-45
0115 Announcement of disposition of nonjudicial 0142 Release of information pertaining to accused
punishment 1-20 persons 1-45
0116 Command action on nonjudicial punishment 0143 Spectators at proceedings 1-47
appeals 1-20 0144 Security of classified matter in judicial
0117 Authority to act on nonjudicial punishment proceedings 1-47
appeals 1-21 0145 Financial responsibility for costs incurred
0118 Suspension, mitigation, remission, in support of courts-martial 1-47
setting aside, and vacation of suspension 1-23 0146 Fees of civilian witnesses 1-48
0119 Records of nonjudicial punishment 1-24 0147 Warrants of attachment 1-50
0148 Court-martial forms 1-50
PART C -- COURTS-MARTIAL
SUBPART C3 POST-TRIAL MATTERS
SUBPART C1 PRETRIAL MATTERS
0149 Report of results of trial 1-51
0120 Designation of additional convening authorities 1-25 0150 Record of trial 1-52
0121 Requests for authority to convene courts-martial 1-26 0151 Initial review and action 1-52
0122 General restrictions on exercise of court- 0152 Actions on specific types of sentence 1-53
martial jurisdiction 1-27 0153 Disposition of records following
0123 Exercise of court-martial jurisdiction over retired, convening authority action 1-55

i
0154 Filing and supervision of court-martial records 1-56 PART C -- THE THREE TYPES OF ADMINISTRATIVE
0155 Promulgating orders--general and INVESTIGATIONS
special courts-martial 1-57
0156 Promulgating orders--Summary courts-martial 1-58 0207 Commonalities 2-10
0157 Service and execution of sentences 1-59 0208 Type One: Command investigations 2-10
0158 Remission and suspension 1-59 0209 Type Two: Litigation-Report investigations 2-13
0159 Limitations on authority to remit and suspend 0210 Type Three: Courts and boards of inquiry 2-16
sentences 1-60
0160 Vacation of suspension of sentence 1-60 PART D -- PRINCIPLES APPLICABLE TO ALL TYPES OF
0161 Request for withdrawal of appellate review 1-61 ADMINISTRATIVE INVESTIGATIONS
0162 Application for relief--Article 69(b) 1-61
0163 Petition for new trial--Article 73 1-62 0211 Convening orders 2-19
0164 Notification to accused of Court of Criminal 0212 Personnel and costs 2-19
Appeals decision 1-62 0213 Oaths 2-19
0165 Request for immediate execution of discharge 1-63 0214 Proof of facts – standards of proof 2-20
0166 Inspection of record of trial containing 0215 Privacy Act compliance 2-22
classified information 1-63 0216 Investigative reports 2-22
0167 Setoff of indebtedness of a person against pay 1-64 0217 Disciplinary action 2-24
0218 Routing copies 2-24
PART D -- MISCELLANEOUS 0219 Release of investigations 2-25

0168 Apprehension by civilian agents of the Naval PART E -- LINE OF DUTY/MISCONDUCT

Criminal Investigative Service 1-64
0169 Authority to prescribe regulations relating to 0220 When line of duty/misconduct determinations
the designation and changing of places of are required 2-26
confinement 1-65 0221 Why line of duty/misconduct determinations
0170 Forms supplementing the Military Rules of are required 2-26
Evidence 1-65 0222 What constitutes line of duty 2-26
0171 Recoupment of Advanced Education Assistance 1-65 0223 What constitutes misconduct 2-27
0172 Cross-reference to Secretarial or JAG 0224 Relationship between misconduct and
regulations implementing the MCM 1-66 line of duty 2-27
0225 Mental responsibility 2-28
CHAPTER II 0226 Intoxication and drug abuse 2-28
ADMINISTRATIVE INVESTIGATIONS 0227 Refusal of medical and dental treatment 2-28
0228 Relationship to disciplinary action 2-29
PART A -- OVERVIEW AND SCOPE 0229 How line of duty/misconduct determinations
are recorded 2-29
0201 Construction 2-6 0230 Action by reviewing authorities 2-29
0202 Scope 2-6 0231 Special considerations in reserve
component cases 2-31
0232 Checklist for line of duty/misconduct
PART B -- PRELIMINARY CONSIDERATIONS investigations 2-31

0203 Preliminary inquiry 2-7 PART F -- SPECIAL CONSIDERATION IN DEATH CASES

0204 Command options 2-8
0205 Seeking counsel 2-9 0233 General 2-33
0206 No further action 2-9 0234 When investigations of death cases are required 2-33
0235 Autopsies 2-34
0236 Determinations concerning line of
duty/misconduct in death cases 2-35

ii
0237 Major incidents and other cases involving 0407 Action where offenders are members of different
death where a court of inquiry may be appropriate 2-36 commands 4-3
0238 Independent review 2-36 0408 Reconsideration and appeal 4-4
0239 Standard of proof 2-37 0409 Effect of court-martial proceedings 4-4
0240 Special routing 2-37
CHAPTER V
PART G -- INVESTIGATIONS OF SPECIAL TYPES OF RELEASE OF GOVERNMENT INFORMATION
INCIDENTS
0501 Scope 5-3
0241 Aircraft accidents 2-37
0242 Motor vehicle accidents 2-41 PART A -- FREEDOM OF INFORMATION ACT
0243 Accidents aboard ships or submarines (generally) 2-43
0244 Explosions 2-44 0502 Policy 5-3
0245 Stranding of a ship of the Navy 2-45 0503 Background 5-3
0246 Collision and allision incidents 2-45 0504 Definitions 5-4
0247 Accidental or intentional flooding of a ship 2-46 0505 Responsibilities 5-4
0248 Fires 2-46 0506 Exemptions 5-6
0249 Loss or excess of government funds or property 2-47 0507 Public interest 5-7
0250 Claims for or against the Government 2-51 0508 Mailing lists 5-7
0251 Health care incidents 2-54 0509 Nonjudicial punishment results 5-7
0252 Reservists 2-57 0510 Action by release authority 5-8
0253 Firearm accidents 2-57 0511 Action by IDA 5-8
0254 Other incidents 2-58 0512 Fees 5-9

CHAPTER III PART B -- PRIVACY ACT

COMPLAINTS OF WRONGS
0513 Policy 5-9
0301 Purpose 3-3 0514 Background 5-9
0302 Authority 3-3 0515 Definitions 5-9
0303 Definitions of terms and phrases used in this chapter 3-3 0516 Responsibilities 5-10
0304 Complaints not within this chapter 3-4 0517 Procedures 5-10
0305 Participants to a complaint of wrong 3-5 0518 Disclosure to others 5-11
0306 Procedure 3-6 0519 Disclosure accountings 5-12
0307 Consideration of the complaint by the officer 0520 Collection of information 5-12
exercising general court-martial authority (GCMA) 3-7 0521 Safeguarding personal information 5-13
0308 Endorsements by officers senior in
the chain of command to the GCMA 3-9 PART C -- RELEASE OF OFFICIAL INFORMATION AND
0309 Action by the Judge Advocate General 3-9 TESTIMONY FOR LITIGATION PURPOSES
0310 Review by the Secretary of the Navy 3-9
0522 Policy 5-13
CHAPTER IV 0523 Relationship with FOIA and the Privacy Act 5-13
ARTICLE 139 CLAIMS-- 0524 Definitions 5-13
REDRESS OF DAMAGE TO PROPERTY 0525 Responsibilities 5-14
0526 Records in the custody of the National Personnel
0401 Scope 4-2 Records Center 5-15
0402 Statutory authority 4-2 0527 Medical and other records of civilian employees 5-15
0403 Claims not cognizable 4-2 0528 Production of official records in the absence of a
0404 Limitation on claims 4-2 court order 5-15
0405 Complaint by the injured party and investigation 4-2 0529 Certificates of full faith and credit 5-16
0406 Action where offenders are members of one command 4-3

iii
 CHAPTER VI PART C -- LIAISON WITH THE DEPARTMENT
DELIVERY OF SERVICEMEMBERS, OF JUSTICE
CIVILIANS, AND DEPENDENTS
--SERVICE OF PROCESS AND SUBPOENAS-- 0623 Litigation reports and pleadings 6-17
STATE TAX AND REGULATORY AUTHORITY 0624 Liaison with the U.S. Attorney and other
officials of the Department of Justice
0601 Scope 6-4 (including officials of the United States
Marshal Service) 6-17
PART A -- DELIVERY OF PERSONNEL
PART D -- MISDEMEANORS COMMITTED ON NAVY
0602 Delivery of persons requested by State authority in criminal AND MARINE CORPS INSTALLATIONS
cases 6-4
0603 Delivery when persons are within territorial limits 0625 General 6-17
of the requesting State 6-4 0626 Prosecution before Federal Magistrates 6-17
0604 Delivery when persons are beyond territorial limits
of the requesting State 6-5 PART E -- APPEARANCES BY JUDGE ADVOCATES IN
0605 Persons stationed outside the United States 6-6 CIVIL COURT AND/OR CIVIL
0606 Authority of the Judge Advocate ADMINISTRATIVE PROCEEDINGS
General and of the General Counsel 6-6
0607 Agreement required prior to delivery 0627 On behalf of members 6-18
to State authorities 6-7
0608 Delivery of persons to Federal authorities 6-7 PART F -- STATE TAX AND REGULATORY AUTHORITY
0609 Delivery of persons to foreign authorities 6-7
0610 Circumstances in which delivery is refused 6-8 0628 Background 6-19
0611 Members released by civil authorities on bail 0629 State regulation of Federal functions,
or on their own recognizance 6-8 including liquor sales 6-19
0612 Interviewing members or civilian employees by 0630 State and local taxation of on-base sales 6-19
Federal civilian investigative agencies 6-8 0631 State and local taxes, including hotel
0613 Request for delivery of member serving taxes and the Federal traveller 6-20
sentence of court-martial 6-8 0632 Liability of military personnel and
0614 Request for delivery of members serving dependents for State and local taxes 6-20
sentence of a State court 6-9
0615 Request for injunctive relief CHAPTER VII
(habeas corpus, temporary restraining LEGAL ASSISTANCE
orders, etc.) and service of process by mail 6-10
0701 Scope 7-2
PART B -- SERVICE OF PROCESS AND 0702 Supervision of legal assistance 7-2
SUBPOENAS UPON PERSONNEL 0703 Legal assistance providers 7-2
0704 Legal assistance attorneys 7-2
0616 Service of process upon personnel 6-11 0705 Nonlawyer personnel 7-2
0617 Members or civilian employees subpoenaed 0706 Persons eligible for legal assistance 7-2
witnesses in State courts 6-13 0707 Personal and privileged character of service 7-3
0618 Members or civilian employees subpoenaed as 0708 Legal assistance services 7-3
witnesses in Federal courts 6-13 0709 Limitations on scope of legal assistance services 7-4
0619 Naval prisoners as witnesses or parties in 0710 Referrals and fees 7-4
civil courts 6-14 0711 Expanded legal assistance program 7-5
0620 Interviews and depositions in connection with civil 0712 Immigration and Naturalization 7-5
litigation in matters pertaining to official duties 6-14
0621 Suits against the United States 6-14 CHAPTER VIII
0622 Repossession of personal property 6-16 GENERAL CLAIMS PROVISIONS

iv
PART A -- GENERAL 0908 General instructions for acknowledgments and
sworn instruments 9-5
0801 Scope 8-3 0909 Notary logs 9-6
0802 Responsibilities 8-3 0910 Special instructions for acknowledgements and
0803 Investigations generally 8-3 sworn instruments (Summary of State laws) 9-6
0804 Claims--generally 8-3
0805 Claims--action by the receiving command 8-4 CHAPTER X
0806 Claims--action when suit filed 8-4 INTERNATIONAL LAW

PART B -- FOREIGN CLAIMS 1001 Scope 10-2

1002 Naval operations overseas 10-2
0807 Definition 8-5 1003 International agreements 10-2
0808 Statutory authority 8-5 1004 Security assistance 10-4
0809 Filing the claim 8-5 1005 Political asylum and temporary refuge 10-5
0810 Claims payable 8-6 1006 Foreign environmental law 10-6
0811 Claims not payable 8-6 1007 Foreign litigation 10-7
0812 Computation of the amount of payment 8-7 1008 Immigration and naturalization 10-8
0813 Foreign Claims Commissions 8-8 1009 Status of Forces Agreements 10-8
0814 Processing of cases 8-9 1010 Foreign criminal jurisdiction 10-8
0815 Reports required 8-10 1011 Enforcement of U.S. laws overseas 10-9
0816 Forwarding reports 8-10 1012 Property captured from the enemy
0817 Action on forwarded claims 8-10 during armed conflict 10-9
0818 Notification to the claimant 8-11 1013 Noncombatant evacuation procedures (NEO) 10-9
0819 Reconsideration, appeal, and suit 8-11 1014 Acceptance of gifts from foreign governments 10-10
0820 Payment 8-11

CHAPTER XI
CHAPTER IX CUSTOMS REQUIREMENTS--
AUTHORITY OF ARMED FORCES PERSONNEL DOMESTIC AND FOREIGN
TO PERFORM NOTARIAL ACTS
1101 Scope 11-2
PART A -- FEDERAL AND NONFEDERAL AUTHORITY 1102 Entry Requirements 11-2
1103 Pre-Clearance 11-2
0901 Scope 9-2
0902 Federal authority to administer CHAPTER XII
oaths and perform notarial acts 9-2 ADMIRALTY CLAIMS
0903 Non-Federal authority to perform
notarial acts 9-3 PART A -- INTRODUCTION

1201 Scope 12-4

1202 Organization 12-4
PART B -- REPORTING AND INVESTIGATING
PART B -- COMPILATION OF NON-FEDERAL NOTARIAL ADMIRALTY INCIDENTS
PROCEDURES AND LAWS
1203 Admiralty incidents 12-5
0904 Introduction 9-4 1204 Initial report of admiralty incident 12-7
0905 Uniform Acknowledgment Act, Uniform Recognition 1205 Subsequent investigative report 12-7
of Acknowledgments Act and Uniform Law 1206 Surveys 12-9
on Notarial Acts 9-4 1207 Documentary evidence 12-9
0906 Acknowledgments 9-4 1208 Collision and allision cases 12-10
0907 Sworn instruments 9-5 1209 Documenting collision damage

v
 and repair costs 12-11 PAYMENTS DUE MENTALLY
1210 Personal injury cases 12-13 INCOMPETENT MEMBERS,
1211 Correspondence with private parties 12-14 PHYSICAL EXAMINATIONS
OF SUCH MEMBERS,
PART C -- ADMIRALTY CLAIMS AGAINST THE NAVY AND TRUSTEE DESIGNATIONS

1212 Naval liability 12-15 1401 Purpose 14-3

1213 Authority for claims settlement 12-15 1402 Scope 14-3
1214 Statute of limitations 12-16 1403 Authority to appoint trustees 14-3
1215 Administration of admiralty claims 12-16 1404 Procedures 14-3
1216 Adjudicating admiralty cases as foreign claims 12-16 1405 Procedures for designation of a trustee 14-4
1406 Travel orders 14-4
PART D -- AFFIRMATIVE ADMIRALTY CLAIMS 1407 Status of pay account 14-4
1408 Emergency funds and health and comfort 14-4
1217 Authority for affirmative claims settlement 12-17 1409 Reports and supervision of trustees 14-4
1218 Statute of limitations for affirmative claims 12-17
1219 Affirmative claims administration 12-17

PART E -- MISCELLANEOUS

1220 Salvage 12-18

1221 Towage and pilotage 12-18
1222 Intragovernment admiralty incidents 12-19
1223 Foreign government claims 12-19
1224 Coast Guard and National Transportation
Safety Board investigations 12-20
1225 Maritime oil/hazardous substance spills 12-22
1226 Salvage, removal, destruction, or desecration
of navy shipwrecks, aircraft wrecks and other
submerged property 12-22

CHAPTER XIII
ENVIRONMENTAL PROTECTION

1301 Purpose 13-2

1302 Scope 13-2
1303 Background 13-2
1304 Environmental compliance and international
operations 13-2
1305 Responsibility 13-2
1306 Notices of violation and environmental
litigation 13-3
1307 Compliance 13-3
1308 Procedural/planning statutes 13-4
1309 Pollution and abatement control statutes 13-4
1310 Statutes controlling specific substances 13-5
1311 Statutes protecting animals, historic
places, and water 13-5
1312 Environmental compliance in the Federal
work place 13-6
CHAPTER XIV

vi
 CHAPTER I
REGULATIONS IMPLEMENTING AND SUPPLEMENTING
THE MANUAL FOR COURTS-MARTIAL

0101 SCOPE 0107 JURISDICTION

PART A -- NONPUNITIVE a. Individual

MEASURES b. Over reserve component personnel on
active duty or inactive duty training
0102 NONPUNITIVE
ADMINISTRATIVE MEASURES 0108 LIMITATION ON
GENERALLY IMPOSITION OF
NONJUDICIAL PUNISHMENT
0103 EXTRA MILITARY
INSTRUCTION a. Units attached to ships
b. Cases previously tried in civil
a. Definition courts
b. Limitations c. Right to demand trial

0104 ADMINISTRATIVE 0109 ADVICE TO ACCUSED PRIOR

WITHHOLDING OF TO IMPOSITION OF
PRIVILEGES NONJUDICIAL PUNISHMENT

a. Privilege a. Pre-NJP advice

b. Deprivation of liberty b. Accused attached to or embarked in a
vessel
0105 NONPUNITIVE CENSURE c. Accused not attached to or embarked in
a vessel (Record cannot be used in
a. General aggravation in event of later court-
b. Nonpunitive censure martial unless lawyer serves as personal
representative.)
PART B -- NONJUDICIAL d. Accused not attached to or embarked in
PUNISHMENT a vessel (Record may be used in
aggravation in event of later court-
0106 AUTHORITY TO IMPOSE martial.)
e. Service record entries
a. Commander
b. Officer in charge
c. Principal assistant
d. Multiservice commander or officer
in charge
e. Withholding of nonjudicial
punishment authority

1-1
0110 PROCEDURES FOR
IMPOSITION OF a. General
NONJUDICIAL PUNISHMENT b. Secretarial letter of censure
c. Punitive censure
a. Captain's mast/office hours d. Other censures
guide e. Internal departmental
b. Standard of proof responsibility
c. Observers at Captain's f. Punitive censure procedures
Mast/Office Hours g. Appeals
d. Nonjudicial punishment based h. Forwarding letter
on report of a fact-finding body i. Cancellation
e. Advice after imposition of j. Public reprimands
nonjudicial punishment
0115 ANNOUNCEMENT OF
0111 LIMITATIONS ON AND DISPOSITION OF
NATURE OF PUNISHMENTS NONJUDICIAL PUNISHMENT

a. Restriction imposed upon a. Publication

officers and warrant officers b. Plan of the Day publication
b. Correctional custody c. Bulletin boards
c. Confinement on bread and water or d. Daily formation (Marine Corps)
diminished rations or morning quarters (Navy)
d. Extra duties
e. Reduction in grade 0116 COMMAND ACTION ON
f. Arrest in quarters NONJUDICIAL PUNISHMENT
APPEALS
0112 LIMITATIONS ON
NONJUDICIAL PUNISHMENTS TO a. Time limit
BE IMPOSED ON RESERVE b. Procedures
COMPONENT PERSONNEL NOT c. Contents of forwarding
ON ACTIVE DUTY endorsement

a. Punishment involving restraint on 0117 AUTHORITY TO ACT ON

liberty NONJUDICIAL PUNISHMENT
b. Punishment involving forfeiture APPEALS
of pay
a. When the officer who imposed punishment
0113 EFFECTIVE DATE AND is in a Navy chain of command
EXECUTION OF NONJUDICIAL b. When the officer who imposed punishment
PUNISHMENTS is in the chain of command of the
Commandant of the Marine Corps
a. Forfeiture of pay and reduction in c. When punishment is imposed within a
grade
b. Punishments involving restraint multiservice command or unit
and extra duties d. Delegation of authority to act on appeals
c. Punitive letters e. Rehearing after appeal

0114 PUNITIVE CENSURE 0118 SUSPENSION, MITIGATION,

1-2
 REMISSION, SETTING ASIDE, ON EXERCISE OF COURT-
AND VACATION OF SUSPEN- MARTIAL JURISDICTION
SION
a. Special and summary courts-martial
a. Definition of "successor in b. Units attached to ships
command"
b. Authority to suspend, mitigate, 0123 EXERCISE OF COURT-MARTIAL
remit, set aside: new commander JURISDICTION OVER RETIRED,
c. Interruption of probationary period RESERVE, FLEET RESERVE, FLEET
d. Vacation of suspension MARINE CORPS RESERVE, AND
DISCHARGED PERSONNEL
0119 RECORDS OF NONJUDICIAL
PUNISHMENT a. Policy
b. Request for authorization
a. Records c. Apprehension and restraint
b. Report of officer nonjudicial d. Jurisdiction over reserve
punishment component personnel under Article
3(d), UCMJ
PART C -- COURTS-MARTIAL e. Order to active duty in the case
of reserve component personnel
SUBPART C1 -- PRETRIAL not on active duty
MATTERS f. Release from active duty of
reserve component personnel
0120 DESIGNATION OF described in subsection e
ADDITIONAL CONVENING g. Tolling statute of limitations
AUTHORITIES
0124 EXERCISE OF COURT-MARTIAL
a. General courts-martial JURISDICTION IN CASES TRIED
b. Special courts-martial IN DOMESTIC OR FOREIGN
c. Summary courts-martial CRIMINAL COURTS

0121 REQUESTS FOR AUTHORITY a. Policy

TO CONVENE COURTS- b. Criteria
MARTIAL c. Procedure
d. Limitations
a. General courts-martial
b. Special and summary courts- 0125 EXERCISE OF COURT-
martial MARTIAL JURISDICTION
c. Separate and detached units OVER MAJOR FEDERAL
d. Commanding officers of staff OFFENSES
enlisted personnel
e. Authority limited to summary a. Background
courts-martial. b. Limitation on court-martial
f. Requests for courts-martial convening jurisdiction
authority. c. Exceptions
g. Record maintenance d. Related matters
0122 GENERAL RESTRICTIONS 0126 DETERMINATION OF STATUS OF

1-3
 CASE AS NATIONAL SECURITY AUTHORITY DEFINED
CASE, INVESTIGATION OF
SUSPECTED NATIONAL a. Accuser in a Navy chain of
SECURITY CASES AND command
EXERCISE OF JURISDICTION IN b. Accuser in the chain of command
SUCH CASES of the Commandant of the Marine
Corps
a. National security case defined
b. Case not designated as national security 0130 PERSONNEL OF COURTS-
case MARTIAL
c. Referral to the Naval Criminal
Investigative Service a. Military judges
d. Preliminary inquiry b. Counsel
e. Notice to the Judge Advocate General c. Members
and National Security Case Disposition d. Reporters, interpreters, escorts,
Authority (NSCDA) bailiffs, clerks, and guards
f. Limitations on convening courts-martial e. Oaths of court-martial personnel
g. Courts-martial involving classified
information 0131 STANDARDS FOR DETERMINING
h. Reporting requirements by responsible AVAILABILITY OF REQUESTED
command INDIVIDUAL MILITARY COUNSEL

0127 PRETRIAL RESTRAINT OF a. General

ACCUSED b. Definitions
c. Submission and forwarding of requests
a. Custody and restraint of accused d. Action by the commander of requested
before or during trial counsel
b. Counsel e. Administrative review
c. Preliminary (probable cause) review f. Approval of associate defense counsel
d. Initial review officer
e. Reserve component 0132 [Reserved]
personnel
0133 ADDITIONAL MATTERS IN
0128 FORWARDING OF CHARGES CONVENING ORDERS

a. Forwarding of charges by an 0134 ADDITIONAL MATTERS IN

officer in a Navy chain of THE CASE OF CERTAIN
command RESERVE COMPONENT
b. Forwarding of charges by an PERSONNEL
officer in the chain of command of
the Commandant of the Marine a. Holdover of reserve component
Corps personnel on active duty
b. Holdover of reserve component
personnel on inactive duty training
c. Sentences to forfeiture or fine
d. Sentence involving restraint on liberty
0129 SUPERIOR COMPETENT SUBPART C2 -- TRIAL MATTERS

1-4
 CHARACTER OF PRIOR SER-
0135 ARTICLE 39(a), UCMJ, VICE OF THE ACCUSED
SESSIONS
0142 RELEASE OF INFORMATION
0136 DELEGATION OF PERTAINING TO ACCUSED
AUTHORITY TO EXCUSE PERSONS
MEMBERS
a. General
0137 PRETRIAL AGREEMENTS b. Applicability of regulations
c. Release of information
a. General d. Information subject to release
b. Major Federal offenses e. Prohibited information
c. Limitations in national security f. Exceptional cases
cases
d. Advanced education obligation 0143 SPECTATORS AT
PROCEEDINGS
0138 AUTHORITY TO GRANT
IMMUNITY FROM a. At sessions of courts-martial
PROSECUTION b. At Article 32 proceedings

a. General 0144 SECURITY OF CLASSIFIED

b. Procedure MATTER IN JUDICIAL
c. Civilian witnesses PROCEEDINGS
d. Cases involving national security
e. Review a. General
f. Form of grant b. Security clearance of personnel
c. Procedures concerning spectators
0139 CONTENT OF IMMUNITY
REQUESTS WHEN APPROVAL OF 0145 FINANCIAL RESPONSIBILITY
THE ATTORNEY GENERAL IS FOR COSTS INCURRED IN
REQUIRED SUPPORT OF COURTS-
MARTIAL
a. Approval
b. Order to testify a. Travel, per diem, fees, and mileage
b. Involuntary recall and extension on
0140 POST-TESTIMONY active duty of members in the Reserve
PROCEDURE WHEN component
AUTHORITY TO GRANT c. Services and supplies
IMMUNITY WAS OBTAINED
FROM THE ATTORNEY
GENERAL

a. Information
b. Verbatim transcript

0141 PERSONAL DATA AND 0146 FEES OF CIVILIAN

1-5
 WITNESSES
a. Convening authority
a. Method of payment b. When impracticable for
b. Public voucher convening authority to act
c. Obtaining money for advance c. Legal officer/staff judge advocate
tender or payment recommendation
d. Reimbursement
e. Certificate of person before 0152 ACTIONS ON SPECIFIC
whom deposition is taken TYPES OF SENTENCE
f. Payment of accrued fees
g. Computation a. Summary courts-martial
h. Non-transferability of accounts b. Sentences including reprimand
i. Signatures c. Automatic reduction of enlisted
j. Rates for civilian witnesses accused
prescribed by law d. Sentences extending to dismissal
k. Supplemental construction of
section 0153 DISPOSITION OF RECORDS
l. Expert witnesses FOLLOWING CONVENING
m. Payment of witness fees to AUTHORITY ACTION
foreign nationals
a. Summary courts-martial and special
0147 WARRANTS OF courts-martial not involving a bad-
ATTACHMENT conduct discharge
b. General courts-martial and
0148 COURT-MARTIAL FORMS special courts-martial which
include an unsuspended or
a. List suspended bad-conduct discharge
b. How to obtain forms
c. Forms prescribed by MCM 0154 FILING AND SUPERVISION
OF COURT-MARTIAL RECORDS
SUBPART C3 -- POST-TRIAL
MATTERS a. JAG supervision
b. Filing of courts-martial records
0149 REPORT OF RESULTS OF c. Records containing classified
TRIAL information

0150 RECORD OF TRIAL 0155 PROMULGATING ORDERS --

GENERAL AND SPECIAL
a. Authentication of record of trial in COURTS-MARTIAL
special courts-martial not involving a
bad-conduct discharge. a. When promulgating orders required
b. Retention of trial notes or recordings b. When supplementary order is not required
c. Security classification c. Supplementary orders in U.S.Navy-
d. Summary court-martial record of trial Marine Corps Court of Criminal
Appeals cases
d. Form
0151 INITIAL REVIEW AND ACTION 0156 PROMULGATING ORDERS --

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 SUMMARY COURTS-MARTIAL OF SENTENCE

0157 SERVICE AND EXECUTION a. Review of confinement of proba-

OF SENTENCES tioner pending vacation proceedings
b. Notice of proceedings
a. General c. Filing of report of proceedings
b. Place and nature of confinement d. Execution of vacated punishments
c. Punitive discharge--Naval
Clemency and Parole Board action 0161 REQUEST FOR
d. Execution of death penalty WITHDRAWAL OF
e. Hard labor without confinement APPELLATE REVIEW

0158 REMISSION AND a. Article 66 cases

SUSPENSION b. Article 69(a) cases

a. Authority to remit or suspend sentences 0162 APPLICATION FOR RELIEF -

in general courts-martial, and special ARTICLE 69(b)
courts-martial in which the sentence in-
cludes a bad-conduct discharge a. General
b. Authority to remit or suspend sentences b. Time limitations
in summary courts-martial, and special c. Submission procedures
courts-martial in which the sentence d. Contents of application
does not include a bad-conduct e. Signatures on application
discharge
c. Probationary period 0163 PETITION FOR NEW TRIAL -
d. Liaison with Naval Clemency and ARTICLE 73
Parole Board
0164 NOTIFICATION TO ACCUSED
0159 LIMITATIONS ON OF COURT OF CRIMINAL
AUTHORITY TO REMIT AND APPEALS DECISION
SUSPEND SENTENCES
a. Current address of Accused
a. Cases involving national security b. Promulgation package
b. Flag and general officers c. Copies of decision
c. Officers and warrant officers d. Change in address
d. Authority of the Commanding e. Completion of appellate review
Officer, Naval Station Norfolk,
VA, and the Commanding Officer, 0165 REQUEST FOR IMMEDIATE
Marine Detachment, U.S. EXECUTION OF DISCHARGE
Disciplinary Barracks, Fort
Leavenworth, KS a. General
b. Conditions of approval
c. Execution of unexecuted portion
of sentence
d. Form of request for immediate
execution of discharge
0160 VACATION OF SUSPENSION

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0166 INSPECTION OF RECORD
OF TRIAL CONTAINING
CLASSIFIED INFORMATION

0167 SETOFF OF INDEBTEDNESS

OF A PERSON AGAINST PAY

a. Courts-martial decisions
b. Administrative determinations
c. Army and Air Force property
d. Voluntary restitution

PART D -- MISCELLANEOUS

0168 APPREHENSION BY
CIVILIAN AGENTS OF THE
NAVAL CRIMINAL INVES-
TIGATIVE SERVICE

0169 AUTHORITY TO PRESCRIBE

REGULATIONS RELATING TO
THE DESIGNATION AND
CHANGING OF PLACES OF
CONFINEMENT

0170 FORMS SUPPLEMENTING

THE MILITARY RULES OF
EVIDENCE

a. Interrogations
b. Search and seizure

0171 RECOUPMENT OF ADVANCED

EDUCATION ASSISTANCE

0172 CROSS-REFERENCE TO
SECRETARIAL OR JAG
REGULATIONS IMPLEMENTING
THE MCM

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 CHAPTER I
REGULATIONS IMPLEMENTING AND SUPPLEMENTING
THE MANUAL FOR COURTS-MARTIAL

0101 SCOPE Part A contains regulations and procedures governing

nonpunitive corrective measures. Part B contains
The Uniform Code of Military Justice (UCMJ) and the regulations and procedures relating to nonjudicial
Manual for Courts-Martial (MCM), authorize "the punishment. Part C pertains to trial by court-martial.
Secretary concerned" or "the Judge Advocate General It is divided into three subparts, concerning the pretrial,
concerned" to prescribe regulations implementing or trial, and post-trial stages of the court-martial process.
supplementing certain provisions of the UCMJ or the Part D contains miscellaneous provisions, including a
MCM. This chapter provides those regulations and table of cross-references between this chapter and
additional regulations relating to military justice. corresponding provisions of the MCM.

PART A - NONPUNITIVE MEASURES

0102 NONPUNITIVE ADMINISTRATIVE more than 2 hours per day.

MEASURES GENERALLY
(2) EMI may be conducted at a reasonable time
Commanding officers and officers in charge are outside normal working hours. Reserve component
authorized and expected to use administrative personnel on inactive duty training, however, may not
corrective measures to further the efficiency of their be required to perform EMI outside normal periods of
commands or units. See R.C.M. 306(c)(2), MCM. inactive duty training.
These measures are not to be imposed as punishment
for any military offense(s). They may be administered (3) EMI will not be conducted over a period that
either orally or in writing. They generally fall into is longer than necessary to correct the performance
three areas: extra military instruction, administrative deficiency for which it was assigned.
withholding of privileges, and nonpunitive censure.
(4) EMI should not be conducted on the
0103 EXTRA MILITARY INSTRUCTION member's Sabbath.

a. Definition. Extra military instruction (EMI) is (5) EMI will not be used for the purpose of
defined as instruction in a phase of military duty in depriving the member of normal liberty to which the
which an individual is deficient, and is intended for member is otherwise entitled. A member who is
and directed towards the correction of that deficiency. otherwise entitled thereto may commence normal
It is a bona fide training technique to be used for liberty upon completion of EMI.
improving the efficiency of an individual within a
command or unit through the correction of some de- (6) Authority to assign EMI that is to be
ficiency in that individual's performance of duty. It performed during normal working hours is not limited
may be assigned only if genuinely intended to accom- to any particular grade or rate, but is an inherent part of
plish that result. It is not to be used as a substitute for that authority over their subordinates, which is vested
judicial (court-martial) action or nonjudicial in officers and noncommissioned/petty officers in
punishment (NJP), and must be logically related to the connection with duties and responsibilities assigned to
deficiency in performance for which it was assigned. them. This authority to assign EMI that is to be
performed during normal working hours may be
b. Limitations. EMI shall be conducted within the withdrawn by any superior if warranted.
following limitations:
(7) Authority to assign EMI to be performed
(1) EMI normally will not be conducted for after normal working hours is vested in the

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commanding officer or officer in charge. Such been completed during normal working hours, for the
authority may be delegated, as appropriate, to officers accomplishment of additional essential work, or for the
and noncommissioned/petty officers, in connection achievement of the currently required level of
with duties and responsibilities assigned to them, only operational readiness.
if authorized by regulations of the Chief of Naval
Operations or the Commandant of the Marine Corps, 0105 NONPUNITIVE CENSURE
as appropriate. See OPNAVINST 3120.32 series.
a. General. "Censure" is a statement of adverse
0104 ADMINISTRATIVE WITHHOLDING opinion or criticism of an individual's conduct or
OF PRIVILEGES performance of duty expressed by a superior in the
member's chain of command. Censure may be
a. Privilege. A privilege is a benefit, advantage, or punitive or nonpunitive. See section 0114 regarding
favor provided for the convenience or enjoyment of an punitive censure. Censure does not include adverse
individual. Examples of privileges that may be comments in reports of fitness or performance
temporarily withheld as administrative corrective evaluations, letters of instruction, or administrative
measures are: special liberty; exchange of duty; remarks entries documenting factual matters such as
special command programs; access to base or ship counseling. Proper use of adverse matter that is not
libraries, base or ship movies, or enlisted or officers' censure is governed by Department of the Navy
clubs; base parking; and base or ship special services regulations and applicable service directives, such as
events. It may also encompass the withholding of the Naval Military Personnel Command Manual and
special pay as well as commissary and exchange the Marine Corps Individual Records Administration
privileges, provided such withholding complies with Manual.
applicable rules and regulations, and is otherwise in
accordance with law. In all instances, unless properly b. Nonpunitive censure. Nonpunitive censure is
delegated, final authority to withhold a privilege, provided for in R.C.M. 306(c)(2), MCM. Nonpunitive
however temporary, must ultimately rest with the level censure may be issued by any superior in the member's
of authority empowered to grant that privilege. chain of command, and may be either oral or in
writing. A sample nonpunitive letter is at Appendix
b. Deprivation of liberty. Deprivation of normal A-1-a.
liberty as a punishment, except as specifically
authorized under the UCMJ, is illegal. Therefore, (1) A nonpunitive letter is not considered
except as the specific result of punishment imposed punishment; rather, the letter is issued to remedy a
under article 15, UCMJ, or as the result of the sentence noted deficiency in conduct or performance of duty.
of a court-martial, it is illegal for any officer or The contents of a nonpunitive letter are not limited to,
noncommissioned/petty officer to deny to any subor- but may include the following: identification of
dinate normal liberty, or privileges incident thereto, as conduct or performance of duty deficiencies, direction
punishment for any offense. Lawful deprivation of for improvement, language of admonishment, iden-
normal liberty, however, may result from other lawful tification of sources of assistance, outline of corrective
actions such as authorized pretrial restraint, or action, and the consequences of failing to correct the
deprivation of normal liberty in a foreign country or in deficiencies.
foreign territorial waters, when such action is deemed
essential for the protection of the foreign relations of (2) A nonpunitive letter will be kept a
the United States, or as a result of international legal personal matter between the member and the superior
hold restriction. Moreover, it is necessary to the issuing the nonpunitive letter. Other than Secretarial
efficiency of the naval service that official functions be letters of censure (see section 0114b), the letter may
performed and that certain work be accomplished in a not be forwarded to the Chief of Naval Personnel or
timely manner. It is, therefore, not a punishment when the Commandant of the Marine Corps, quoted in or
persons in the naval service are required to remain on appended to fitness reports, included as enclosures to
board and be physically present outside of normal investigations pursuant to the Manual of the Judge
working hours for work assignments that should have Advocate General or to other investigations, or

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otherwise included in official departmental records of
the recipient.

(3) The commanding officer of a member may

use the underlying facts to support a detachment for
cause proceeding, for relief of command, or to support
a negative endorsement. If the member submits a
rebuttal to those facts alleging inadequate counseling
or a failure to warn of deficiencies, a copy of the
nonpunitiveletter may be included in the
correspondence forwarding the member's rebuttal.
Under such circumstances, a nonpunitive letter may
properly be included in the official service record of
the member upon filing of the complete
correspondence under the provisions of applicable
service regulations. The fact of issuance of a
nonpunitive letter may not be mentioned in a fitness
report but the underlying facts may be included.

PART B - NONJUDICIAL PUNISHMENT

0106 AUTHORITY TO IMPOSE command in case of absence of such officer in com-

mand. To the extent of the authority thus delegated,
a. Commander. Any commander or commanding the officer to whom such powers are delegated shall
officer, including a commanding officer as designated have the same authority as the officer who delegated
pursuant to subsection d, may impose nonjudicial the powers.
punishment upon officers and enlisted persons of the
command. This authority to impose nonjudicial d. Multiservice commander or officer in charge. A
punishment extends to Reserve commanders or multiservice commander or officer in charge to whose
commanding officers on active duty or inactive duty staff, command or unit members of the naval service
training. are assigned may impose nonjudicial punishment upon
such individuals. A multiservice commander,
b. Officer in charge. Any commissioned officer alternatively, may designate one or more naval units,
who is designated as officer in charge of a unit by and shall for each such naval unit designate a
Departmental Orders, Tables of Organization, commissioned officer of the naval service as
manpower authorizations, orders of a flag or general commanding officer for the administration of
officer in command (including one in command of a discipline under article 15, UCMJ. A copy of any such
multiservice command to which members of the naval designation by the commander of a multiservice
service are attached), or orders of the senior officer command shall be furnished to the Chief of Naval
present, may impose upon enlisted persons assigned to Personnel or the Commandant of the Marine Corps, as
the unit admonition or reprimand and one or more of appropriate, and to the Judge
the punishments listed in paragraph 5b(2)(A)(i) to (vi) Advocate General.
of Part V, MCM.
e. Withholding of nonjudicial punishment
c. Principal assistant. With the express prior authority. Unless specifically authorized by the
approval of the Chief of Naval Personnel or the Secretary of the Navy, commanding officers of the
Commandant of the Marine Corps, as appropriate, a Navy and Marine Corps shall not limit or
flag or general officer in command may delegate all or withhold the exercise by subordinate commanders of
a portion of his powers under article 15, UCMJ, to a any disciplinary authority they might otherwise have
senior officer on his staff who is eligible to succeed to under article 15, UCMJ. But see section 0108a.

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 subject to the UCMJ. Such members are not, by virtue
0107 JURISDICTION of termination of a period of active duty or inactive
duty training, relieved from amenability to jurisdiction
a. Individual of the UCMJ for offenses committed during such
periods of active duty or inactive duty training and
(1) General rule. When nonjudicial punishment is may be ordered to active duty for disciplinary
imposed, the accused must be a member of the proceedings. (See section 0123e regarding procedures
command, or of the unit, of the officer imposing the for ordering to active duty and section 0123f regarding
punishment. A member is "of the command," or "of release from active duty of members ordered to active
the unit," if assigned or attached thereto. A member duty for disciplinary proceedings.)
may be "of the command," or "of the unit," of more
than one command or unit at the same time and, 0108 LIMITATION ON IMPOSITION OF
consequently, be subject to the nonjudicial punishment NONJUDICIAL PUNISHMENT
authority of both commanders. For example, members
assigned to or attached to commands or units for the a. Units attached to ships. The commanding officer
purpose of performing temporary duty (TDY) are or officer in charge of a unit attached to a ship of the
subject to the nonjudicial punishment authority of the Navy for duty should, as a matter of policy while the
commanders of both the parent and TDY commands. unit is embarked therein, refrain from exercising his
Similarly, members assigned or attached to a powers to impose nonjudicial punishment. All such
detachment under the operational control of another matters should be referred to the commanding officer
command or unit by virtue of operational orders, or of the ship for disposition.
other authorized means, are subject to the nonjudicial
punishment authority of the commanders of both the (1) This general policy is a necessary corollary to
parent and supported units. the latter's overall responsibility for the safety, well
being, and efficiency of the ship. Nevertheless, the
(2) Issuance of letter of censure to party before commanding officer of a ship of the Navy is
fact-finding body. A person who has been designated authorized to determine whether, and under what
a party before a fact-finding body convened under circumstances, he may desire to permit a commanding
these regulations (see chapter II) remains thereafter "of officer or officer in charge of a unit attached to that
the command" of the unit or organization to which ship, while embarked therein, to exercise routinely
assigned or attached at the time of such designation for nonjudicial punishment authority. The commanding
the purpose of imposition of the sole nonjudicial officer of a ship of the Navy may, for example, permit
punishment of a punitive letter, even though for other a commanding officer or officer in charge of a unit
purposes he may have been assigned or attached to attached to and embarked in the ship to exercise
another command before such letter was delivered to nonjudicial punishment authority. Certain types of
him. This status terminates automatically when all offenses, or offenses committed by certain categories
action on appeal has been completed respecting the of personnel, may nonetheless be required to be
letter of admonition or reprimand. referred to the commanding officer of the ship for
disposition.
(3) Action when accused is no longer with
command. Except as provided in subsection a(2), if (2) This policy shall not apply to Military Sealift
the accused is no longer assigned to or attached to the Command vessels operating under a master, nor does it
unit at the time nonjudicial punishment is to be apply where an organized unit is embarked for
imposed, the alleged offense should be referred for transportation only. When an organized unit is
appropriate action to a competent authority in the chain embarked for transportation only in a ship of the Navy,
of command over the individual concerned. the officer in command of such organized unit shall
retain the authority possessed over such unit prior to
b. Over reserve component personnel on active duty embarkation, including disciplinary authority. Under
or inactive duty training. A member of a reserve ordinary circumstances, the internal control and
component on active duty or inactive duty training is discipline of a unit embarked for transportation only

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shall be left to the officer in command of that unit. determining whether to utilize Appendix A-1-b,
Nothing in the foregoing shall be construed as Appendix A-1-c, or Appendix A-1-d.
impairing the paramount authority of the commanding
officer of the ship, including disciplinary authority, (2) A servicemember having obligated service
over all personnel of the naval service embarked. In arising from receiving advanced education assistance
the case of units embarked for transportation only, must be advised prior to electing nonjudicial
however, the commanding officer of the ship should punishment that, if subsequently separated for
take disciplinary action under the UCMJ over misconduct, he may be required to reimburse the
members of such embarked units only in unusual cases United States for the cost of advanced education
concerning incidents occurring on board the ship. assistance not repaid by active duty service as specified
in the written agreement entered into with the
b. Cases previously tried in civil courts. See section Government prior to accepting advanced education
0124 for rules governing nonjudicial punishment in assistance. See section 0171 and Appendix A-1-r(1).
cases previously adjudicated in domestic or foreign
criminal courts. b. Accused attached to or embarked in a vessel.
Appendix A-1-b is the Accused's Notification of
c. Right to demand trial. A person in the Navy or Rights for use only in circumstances when an accused
Marine Corps who is attached to or embarked in a is attached to or embarked in a vessel. The record of
vessel does not have the right to demand trial by court- nonjudicial punishment can be used in aggravation in
martial in lieu of nonjudicial punishment. the event of a later court-martial conviction for other
offenses.
0109 ADVICE TO ACCUSED PRIOR TO
IMPOSITION OF NONJUDICIAL c. Accused not attached to or embarked in a vessel.
PUNISHMENT (Record cannot be used in aggravation in event of later
court-martial unless lawyer serves as personal
a. Pre-NJP advice representative.) Appendix A-1-c is an Accused's
Notification of Rights that is for use if either the officer
(1) Prior to the imposition of nonjudicial who may impose nonjudicial punishment does not
punishment, the commanding officer or officer in intend any record of captain's mast/office hours to be
charge shall ensure that the individual concerned is used in aggravation in the event of a later court-martial
fully advised of all applicable legal rights and that conviction for other offenses, or if a personal
other required action is taken prior to the hearing. See representative, who is a civilian or military lawyer,
section 0110d if nonjudicial punishment is to be based appears at the captain's mast/office hours.
on the report of a fact-finding body. There is no right
for an accused to consult with counsel prior to d. Accused not attached to or embarked in a vessel.
nonjudicial punishment; however, commanding (Record may be used in aggravation in event of later
officers are encouraged to permit an accused to so court-martial.) Appendix A-1-d is an Accused's
consult subject to the immediate availability of Notification of Rights, which is for use if it is intended
counsel, the delay involved, or operational to utilize the record of captain's mast/office hours in
commitments or military exigencies. Failure to aggravation in the event of a later court-martial
provide the opportunity for an accused to consult with conviction on other charges. See R.C.M. 1001, MCM,
counsel prior to nonjudicial punishment does not and section 0141.
preclude the imposition of nonjudicial punishment; it
merely precludes the admissibility of the record of (1) Appendix A-1-d provides for obtaining advice
nonjudicial punishment in aggravation at a later of rights from a lawyer prior to the
Courts-Martial (unless the accused was attached to or accused deciding whether to accept or refuse captain's
embarked in a vessel at the time of the imposition of mast/office hours. Such a lawyer may be a military
nonjudicial punishment). The status of the accused lawyer or a civilian lawyer (obtained by the accused at
(See subsection b) and the potential use of the record his own expense). A military lawyer who provides
(See subsections c and d) should be considered in such advice should be "independent." It is considered

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that a military lawyer who, in the course of his regular utilized, or the accused is represented by a lawyer at
duties, acts as the principal legal advisor to the officer, the hearing, appropriate service-record entries should
who would hold the captain's mast/office hours, is not be made, and signed by appropriate personnel, on page
"independent." 13 (Navy) or page 12 (Marine Corps), or in such other
manner as service directives may require. As an
(2) If the accused does not wish to obtain this example, if the accused executed Appendix A-1-d, the
advice of rights from a lawyer, the accused should so service record entry should state, after appropriate
indicate in the appropriate space and complete the verification, the following:
remainder of the form. If the accused states that he (Grade and name of accused) signed JAG Manual
desires to obtain advice of rights from a lawyer before Appendix A-1-d, prior to (his)(her) (captain's
deciding whether to accept or reject captain's mast)(office hours) which was held on (date of
mast/office hours, Appendix A-1-d shall so indicate, captain's mast/office hours).
but the remainder of the form shall not be completed
until the accused has been given a reasonable oppor- The accused [talked to a lawyer prior to deciding
tunity to obtain this advice of rights. Such advice to an whether to demand trial by court-martial in lieu of
accused from a military lawyer shall be limited to an (captain's mast) (office hours)] [elected to give up
explanation of the legal ramifications involved in the (his)(her) right to talk with a lawyer prior to
right to refuse captain's mast/office hours. These legal deciding whether to demand trial by court-martial
ramifications are limited to areas such as: the in lieu of (captain's mast) (office hours)]. The
accused's substantive and procedural rights at a court- accused was advised that acceptance of
martial as opposed to captain's mast/office hours; the nonjudicial punishment does not preclude further
respective punishment limitations; and the potential administrative action against (him)(her). This
uses of courts-martial convictions and captain's may include being processed for an administrative
mast/office hours records at any subsequent trial by discharge which could result in an other than
court-martial. Providing these technical explanations honorable discharge. In completing the remainder
regarding basic principles of military law do not, per of the form, the accused did not demand trial by
se, establish an attorney-client relationship, nor do they court-martial in lieu of (captain's mast) (office
constitute an assignment of such a military lawyer as hours).
the individual's defense counsel or personal
representative for purposes of nonjudicial punishment. (2) If the accused is represented by a military
Military lawyers making such explanations should or civilian lawyer as a personal representative at
guard against the establishment of any attorney-client captain's mast/office hours, the following example
relationship unless detailed by proper authority to of a service-record entry may be made, after
serve as defense counsel or personal representative of appropriate verification:
the accused.
(Grade and name of accused) received punishment
(3) Telephone communication between an accused at (captain's mast) (office hours) on (date). The
facing captain's mast/office hours and a military lawyer accused was represented by a lawyer.
counsel is sufficient to satisfy this advice requirement.
0110 PROCEDURES FOR IMPOSITION
(4) In the event that the accused, through no fault OF NONJUDICIAL PUNISHMENT
of the accused's own, does not receive the requisite
advice of rights, and does not waive the right thereto, a. Captain's mast/office hours guide. Appendix
Appendix A-1-c may be utilized in lieu of Appendix A-1-e is a guide for a personal hearing at captain's
A-1-d. mast or office hours.

e. Service record entries b. Standard of proof. Captain's mast/office hours that

results in nonjudicial punishment is not a criminal trial;
(1) In the event punishment is imposed at it is a disciplinary proceeding. Its purpose is to
captain's mast/office hours, and Appendix A-1-d is determine whether an offense was committed by the

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member and, if appropriate, to provide punishment e. Advice after imposition of nonjudicial punishment.
therefore. Such punishment is designed for minor mis- The officer who imposes punishment under article 15,
conduct in a nonjudicial forum, without the permanent UCMJ, shall again ensure that the offender is fully in-
stigma of a record of "Federal conviction." As such, formed of his right to appeal. Appendix A-1-f is an
the standard of proof by which facts must be Accused's Acknowledgment of Appeal Rights, which
established at mast or office hours is a "preponderance should be signed and witnessed if one or more
of the evidence," rather than "beyond a reasonable punishments is imposed.
doubt," as it is at courts-martial.
c. Observers at captain's mast/office hours. The 0111 LIMITATIONS ON AND NATURE
presence of representative members of the command as OF PUNISHMENTS
observers during personal hearings under paragraph 4
of Part V, MCM, and article 15, UCMJ, is authorized a. Restriction imposed upon officers and warrant
and encouraged as a method of dispelling erroneous officers. Restriction, with or without suspension from
perceptions which may exist concerning the integrity duty, imposed upon commissioned and warrant
and fairness of the imposition of nonjudicial officers under paragraph 5b(1)(A) of Part V, MCM,
punishment. Nothing in these requirements shall may not exceed 15 consecutive days when imposed by
preclude the alleged offender from conferring privately a commanding officer below the grade of major or
with the officer conducting the hearing to relate lieutenant commander.
matters which, in the opinion of the alleged offender,
are of a personal nature. b. Correctional custody. This punishment shall not
be imposed on persons in paygrade E-4 and above
d. Nonjudicial punishment based on report of a fact- unless unsuspended reduction below paygrade E-4 is
finding body. If nonjudicial punishment is imposed. See SECNAVINST 1640.7 series for
contemplated on the basis of the record of a court of instructions concerning the administration of
inquiry or other fact-finding body, a preliminary correctional custody.
examination shall be made of such record to determine
whether the individual concerned was accorded the c. Confinement on bread and water or diminished
rights of a party before such fact-finding body and, if rations. This punishment shall not be imposed on
so, whether such rights were accorded with respect to persons in paygrade E-4 and above unless
the act or omission for which nonjudicial punishment unsuspended reduction below pay- grade E-4 is
is contemplated. If the individual does not exercise his imposed.
right to demand trial by court-martial, or if he does not
have that right, the individual may submit, in writing, d. Extra duties. Subject to the limitations set
any matter in defense, extenuation, or mitigation to the forth in paragraph 5c(6) of Part V, MCM, this
officer considering imposing the nonjudicial punishment shall be considered satisfied when the
punishment. If the individual concerned was accorded enlisted person shall have performed extra duties
the rights of a party with respect to the act or omission during available time in addition to performing his
for which nonjudicial punishment is contemplated, military duties. Normally the immediate commanding
such punishment may be imposed without further officer of the accused will designate the amount and
proceedings. If the individual concerned was not character of the extra duties to be performed. The
accorded the rights of a party with respect to the daily performance of the extra duties, before or after
offense for which punishment is contemplated, the routine duties are completed, constitutes the
procedure prescribed in paragraph 4 of Part V, MCM, punishment whether the particular daily assignment
must be conducted. In the alternative, the record of the requires 1, 2, or more hours, but normally extra duties
fact-finding body may be returned for additional should not extend to more than 2 hours per day.
proceedings during which the individual concerned Except in cases of members of the Naval or Marine
shall be accorded the rights of a party with respect to Corps Reserve performing inactive training or annual
the act or omission for which nonjudicial punishment training for a period of less than 7 days, extra duty
is contemplated. shall not be performed on Sunday, although Sunday
counts in the computation of the period for which such

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punishment is imposed. Guard duty shall not be reduction in grade, forfeiture shall be based on the
assigned as punishment. grade to which the accused is reduced. For inactive
duty training reserve component personnel ordered to
e. Reduction in grade. Under no circumstances may active duty for punishment and released therefrom
the punishment of reduction in grade be imposed prior to collection of all forfeitures. See DODPM, Pt.
except to the next inferior paygrade. Navy personnel 7, ch. 5 and 6.
in the paygrade of E-7 or above and Marine Corps
personnel in the paygrade of E-6 or above may not be
reduced in paygrade.
f. Arrest in quarters. An officer or warrant officer
undergoing this punishment shall not be permitted to 0113 EFFECTIVE DATE AND
perform duties involving the exercise of authority over EXECUTION OF NONJUDICIAL
any person who is otherwise subordinate to him. PUNISHMENTS

0112 LIMITATIONS ON NONJUDICIAL a. Forfeiture of pay and reduction in grade. These

PUNISHMENTS TO BE IMPOSED ON punishments, if unsuspended, take effect on the date
RESERVE COMPONENT imposed. If suspended, and the suspension is later
PERSONNEL NOT ON ACTIVE DUTY vacated, these punishments take effect for all purposes
on the date the suspension is vacated. If, subsequent to
a. Punishment involving restraint on liberty the imposition of a punishment of forfeiture of pay and
prior to the execution of this punishment, an accused
(1) If imposed on reserve component personnel on absents himself without authority, such period of
inactive duty training, restriction shall not extend absence shall interrupt the service of this punishment
beyond the normal inactive duty training period but and shall be excluded in computing the service of this
may be carried over to subsequent periods of inactive punishment. If a forfeiture of pay is imposed,
duty training or active duty. A reserve component however, while a prior punishment of forfeiture of pay
member on inactive duty may not be ordered to active is still in effect, the prior punishment will be completed
duty for the sole purpose of serving such punishment before the latter begins to run. A punishment to
unless the order to active duty received Secretarial reduction in rate may be executed in the accused's
approval. See section 0123e. absence.

(2) If imposed on reserve component personnel b. Punishments involving restraint and extra duties
who have been ordered to active duty for disciplinary
proceedings, the period of active duty may not be ex- (1) Generally. The punishments of arrest in
tended for the purpose of serving such punishment quarters, correctional custody, confinement on bread
unless the order to active duty received Secretarial and water or diminished rations, extra duties, and
approval. See section 0123e. restriction, if unsuspended, take effect when imposed
and are executed when served. But see paragraph 7 of
(3) Confinement on bread and water may not be Part V, MCM, if an appeal is filed.
imposed unless the reserve component member was
ordered to active duty with Secretarial approval. See (2) Interruption by absence or later punishment. If
section 0123e. subsequent to the imposition and prior to the execution
of these punishments an accused absents himself
(4) Correctional custody, extra duties, and arrest in without authority, the period of absence shall interrupt
quarters may not be imposed on reserve component the service of the unexecuted portion of these
personnel on inactive duty training. punishments. The execution of any previously
imposed nonjudicial punishment involving restraint
b. Punishment involving forfeiture of pay. Pay will normally be interrupted by a subsequent
subject to forfeiture refers only to basic pay plus sea or nonjudicial punishment involving restraint. Upon
foreign duty pay. If punishment also includes execution of the later-imposed nonjudicial punishment

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involving restraint, the unexecuted portion of the directed, a copy of the letter will be filed in the official
earlier punishment will be executed. The officer record of the person censured. If a copy of the letter is
imposing the later punishment may, however, order filed in the official record of the member, the
that the earlier punishment be completed prior to individual may submit a rebuttal. Any such reply shall
execution of the later punishment. A sentence imposed be temperate in language and confined to pertinent
by a court-martial will also interrupt the service of any facts. Opinions shall not be expressed nor the motives
nonjudicial punishment involving restraint. When the of others impugned. Replies shall not contain
judicially imposed punishment has been served, any countercharges. The issuance of a Secretarial letter of
unexecuted nonjudicial punishment will be completed. censure and the underlying facts may be mentioned in
a fitness report and used to support a detachment for
(3) Deferment of execution. Commanding officers cause proceeding, relief of command, or negative
and officers in charge may, when adequate facilities endorsement, or any other administrative action on the
are not available or when the exigencies of the service part of the service concerned.
require, defer execution of correctional custody or
confinement on bread and water or diminished rations, c. Punitive censure. A punitive letter is issued as
for a reasonable period of time, not to exceed 15 days, nonjudicial punishment or as the result of a sentence
after imposition. Also, commanding officers and by court-martial. See section 0152b. When imposed
officers in charge may, if the accused is found to be upon officers, punitive censure must be in writing.
medically unfit for the service of the punishments of When imposed upon enlisted personnel as nonjudicial
correctional custody, confinement on bread and water punishment, punitive censure may be either written or
or diminished rations, defer, for a period not to exceed oral. Punitive censure issued to enlisted personnel in
15 days, the execution of the punishment until the execution of a court-martial sentence must be in
accused is determined to be medically fit to serve the writing. Unless withdrawn or set aside by higher
punishment. If at the end of the deferment period the authority upon appeal, punitive letters become part of
accused remains medically unfit to serve the the official service record of the member to whom they
punishment of correctional custody or confinement on are addressed. The issuance of a punitive letter and the
bread and water or diminished rations, the facts of the underlying offenses may be mentioned in
commanding officer or officer in charge who imposed the member's fitness report or enlisted evaluation and
the punishment may mitigate the punishment to one no used to support a detachment for cause proceeding,
more severe than the original punishment announced. relief of command, or any other administrative action
on the part of the service concerned. Procedures for
c. Punitive letters. These punishments take effect issuance of punitive letters and procedures of appeal
when imposed. A punitive letter is imposed when rights in connection with imposition as nonjudicial
delivered to the offender. The imposition of a punitive punishment are discussed below in subsections f and g.
letter may not be suspended.
d. Other censures. No other punitive censure is au-
0114 PUNITIVE CENSURE thorized.

a. General. "Censure" is a statement of adverse e. Internal departmental responsibility.

opinion or criticism of an individual's conduct or Correspondence, records, and files in the Department
performance of duty expressed by a superior in the of the Navy that relate to punitive censure and
member's chain of command. Censure may be Secretarial letters of censure are personnel matters
punitive or nonpunitive. See section 0105 regarding under the primary cognizance of the Chief of Naval
nonpunitive censure. Personnel or the Commandant of the Marine Corps, as
appropriate.
b. Secretarial letter of censure. The Secretary of the
Navy may administratively censure members in f. Punitive censure procedures
writing without reference to article 15, UCMJ. The
member to whom a Secretarial letter of censure is (1) Issuing authority. When an officer has
addressed has no right of appeal. Unless otherwise committed an offense that warrants a punitive letter,

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the immediate commanding officer subject to reference should be made to the hearing afforded the
paragraphs 3 and 4 of Part V, MCM, may issue the offender. Where applicable, the letter shall include a
letter or refer the matter through the chain of statement that the recipient was advised of the right to
command, normally to the superior who exercises demand trial by court-martial in lieu of nonjudicial
general court-martial jurisdiction over the prospective punishment and that such trial was not demanded. See
addressee. The degree of severity and effect of a article 15(a), UCMJ.
punitive letter increase with the grade of the officer
who issues the letter. (c) Classification (security). Specific details
requiring security classification should be omitted from
(2) Hearing requirement. Subject to the provisions punitive letters. A letter issued as nonjudicial
of article 15(a), UCMJ, paragraph 3 of Part V, MCM, punishment shall be designated "For Official Use
and section 0108c regarding demand for trial, a Only" unless it contains classified matter. See DOD
punitive letter may be issued, or its issuance recom- 5400.7-R for marking instructions.
mended to higher authority, on the basis of an (d) Notification of right to appeal and right to
investigation or court of inquiry for acts or omissions submit statement. Punitive letters, except letters issued
for which the individual was accorded the rights of a in execution of a court-martial sentence as described in
party or on the basis of captain's mast/office hours section 0152b and Secretarial letters of censure, shall
prescribed in paragraph 4 of Part V, MCM. When a contain the following:
hearing at captain's mast/office hours is conducted the
officer conducting the hearing shall prepare a report You may appeal this action to the next superior
thereof. The report shall include a summary of the authority, the __________________ via [insert
testimony of witnesses, statements, and affidavits the official designation of the commanding officer
submitted to the officer holding the hearing, and a issuing the letter or, if the officer is the immediate
description of items of information in the nature of commanding officer of the offender, the official
physical or documentary evidence considered at the designations of the immediate commanding
hearing. officer of the offender and the officer issuing the
letter] under the provisions of article 15(e) of the
(3) Content of letter Uniform Code of Military Justice, paragraph 7 of
Part V, Manual for Courts-Martial, and section
(a) General. A punitive letter issued pursuant to 0114g of the Manual of the Judge Advocate
article 15, UCMJ, may be imposed only for those General.
minor acts or omissions constituting offenses under the
UCMJ. See paragraph 1e of Part V, MCM. The letter If you do not desire to appeal this action, you are
must set forth the facts constituting the offense but directed to so inform the issuing authority in
need not refer to any specific punitive article of the writing within 5 days after the receipt of this letter.
UCMJ nor satisfy the drafting requirements of court-
martial specifications. The letter should contain If you do desire to appeal this action, you are
sufficient specific facts, without reference to other advised that an appeal must be made within a
documents, to apprise a reader of all relevant facts and reasonable time and that, in the absence of
circumstances of the offense. General conclusions, unusual circumstances, an appeal made more than
such as "gross negligence," "unofficer-like conduct," 5 days after the receipt of this letter may be
or "dereliction of duty," are valueless unless considered as not having been made within a
accompanied by specific facts upon which they are reasonable time. If, in your opinion, unusual
based. A sample punitive letter is set forth for circumstances make it impracticable or extremely
guidance in Appendix A-1-g. difficult for you to prepare and submit your appeal
within the 5 days, you shall immediately advise
(b) References. All punitive letters should refer the officer issuing this letter of such circumstances
to all prior proceedings and correspondence upon and request an appropriate extension of time to
which they are based, applicable laws and regulations, submit your appeal. Failure to receive a reply to
including the MCM, and this section. Particular such request will not, however, constitute a grant

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 of such extension of time to submit your appeal. to whom the appeal is made may direct additional
inquiry or investigation into matters raised by the
In all communications concerning an appeal appeal if such action is deemed necessary in the
of this action, you are directed to state the date of interests of justice.
your receipt of this letter.
(3) Appeals from a punitive letter imposed as
Unless withdrawn or set aside by higher nonjudicial punishment shall be forwarded as specified
authority, a copy of this letter will be placed in in section 0117.
your official record at [Bureau of Naval Personnel]
[Headquarters, U.S. Marine Corps]. You may (4) The standard of review for a punitive letter of
forward within 15 days after receipt of final denial censure will be that the language in the letter is
of your appeal or after the date of your notification "accurate and relevant to the offenses committed and
of your decision not to appeal, whichever may be the punishment imposed." The contents of the appeal
applicable, a statement concerning this letter for must be couched in terms that are temperate and
inclusion in your record. If you do not desire to factual.
submit a statement, you shall so state in writing
within 5 days. You are advised that any statement (5) Upon determination of the appeal, the superior
submitted must be couched in temperate language shall advise the appellant of the action taken via the
and shall be confined to pertinent facts. Opinions immediate commanding officer with copies of the
shall not be expressed nor the motives of others action to officers in the chain of command through
impugned. Your statement may not contain whom the appeal was forwarded. The superior shall
countercharges. Your reporting senior may note also return all papers to the commander who issued the
this letter in your next [fitness report] [performance letter.
evaluation] submitted after this letter becomes
final, either by decision of higher authority upon h. Forwarding letter. Upon denial of any appeal
appeal or by your decision not to appeal. Omit last taken, the lapse of a reasonable time after issuance (see
sentence in cases involving Marine Corps enlisted section 0116a), or upon receipt of the addressee's
personnel in paygrades E-4 or below. statement that an appeal is not desired, a copy of the
punitive letter and other documents required by the
g. Appeals. The following rules apply to appeals of Chief of Naval Personnel or the Commandant of the
punitive letters (in addition to those rules contained in Marine Corps, together with the addressee's statement
paragraph 7 of Part V, MCM, and sections 0116 and or a written declaration that he does not desire to make
0117): a statement, shall be forwarded to Chief of Naval
Personnel (PERS-82 for officers and PERS-83 for
(1) A copy of the report of captain's mast/office enlisted) or the Commandant of the Marine Corps
hours shall be provided to the individual upon request (Code JAM for officers and Code MMRB-20 for
except where the interests of national security may be enlisted), as appropriate. If the punitive letter is not
adversely affected. A copy shall be made available to sustained on appeal, a copy of the letter shall not be
the individual for use in preparation of a defense or filed in the official record of the member concerned.
appeal. See section 0116b(2) for similar rules The command issuing a punitive letter has the
concerning a copy of the record of an investigation or responsibility of assembling and forwarding at one
court of inquiry. time all the foregoing documents and of providing a
copy of the forwarding letter for each via addressee.
(2) In forwarding an appeal from a punitive letter
(see section 0116), the officer who issued the letter i. Cancellation. Material properly placed in an
shall attach to the appeal a copy of the punitive letter officer's or enlisted member's official record may not
and the record of investigation or court of inquiry or normally be removed or destroyed.
report of hearing on which the letter is based. The
appeal shall be forwarded via the chain of command to (1) If a factual error or other reasons indicate that a
the superior to whom the appeal is made. The superior punitive letter issued under article 15, UCMJ, and filed

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in the addressee's official record results in a clear injus- punishment results is rooted in the reasonable belief
tice, the officer referred to in paragraph 6 of Part V, that it serves to deter other members of the organ-
MCM, and section 0118a, may cancel or direct ization from committing similar offenses and that it has
cancellation of the punitive letter. Cancellation occurs salutary effects upon the morale of the organization.
by issuing a second letter to the officer or enlisted Accordingly, commanding officers may, if the interests
member concerned announcing the cancellation of the of the rehabilitation of the offender, good order, high
punitive letter and setting forth in detail the reason for morale, and perceptions of fairness so warrant,
cancellation. establish a policy whereby the disposition of
nonjudicial punishment cases should be announced.
(2) If a punitive letter is canceled by superior See section 0509. Announcement may be, for
authority before a copy of the original of such letter is example, by any or all of the methods below.
forwarded to the Chief of Naval Personnel or the
Commandant of the Marine Corps, the punitive letter b. Plan of the Day publication. The name, rate,
will not be forwarded and copies of the punitive letter offense(s), and disposition of the offender may be
will be removed from all files relating to the member published in the plan of the day within 1 month of the
and destroyed. imposition of nonjudicial punishment or, if the
punishment is appealed, within 1 month of the date the
(3) If the cancellation occurs after a copy of the appeal is denied, provided that the plan of the day is
punitive letter has been forwarded, a copy of the letter disseminated to military personnel only. If the plan of
of cancellation shall be forwarded to the Chief of the day is disseminated to other than military
Naval Personnel or the Commandant of the Marine personnel, nonjudicial punishment results may be
Corps, as appropriate, as well as to any other published without the name of the accused.
addressees to whom copies of the punitive letter were
forwarded. Upon receipt of the copy of the letter of c. Bulletin boards. The name, rate, offense(s), and
cancellation, addressees will ensure that copies of the disposition of the individual case may be posted within
punitive letter shall not be filed in or, if already filed, 1 month of the imposition of nonjudicial punishment
shall be removed from, the member's official record or, if the punishment is appealed, within 1 month of
and destroyed. The order or letter of cancellation or a the date the appeal is denied, on command bulletin
copy thereof shall not be filed in the member's official boards for military personnel only. If command
records. bulletin boards are accessible to other than military
personnel, nonjudicial punishment results may be
(4) If a punitive letter is filed inadvertently or by published without the name of the accused.
mistake of fact, such document may be removed by the
Chief of Naval Personnel or the Commandant of the d. Daily formation (Marine Corps) or morning
Marine Corps, as appropriate. In other cases, only the quarters (Navy). The name, rate, offense(s), and
Secretary of the Navy acting through the Board for disposition of nonjudicial punishment cases may be
Correction of Naval Records may order removal of announced at daily formations or morning quarters
punitive letters and other documents in official records. within 1 month of the imposition of nonjudicial
punishment or, if the punishment is appealed, within 1
j. Public reprimands. Omission of the word "private" month of the date the appeal is denied.
preceding "admonition or reprimand" in article 15,
UCMJ, does not constitute authority to commanding 0116 COMMAND ACTION ON NON-
officers to issue "public reprimands," which are looked JUDICIAL PUNISHMENT APPEALS
upon with disfavor by the Department of the Navy.
a. Time limit
0115 ANNOUNCEMENT OF
DISPOSITION OF NONJUDICIAL (1) In accordance with paragraph 7d of Part V,
PUNISHMENT MCM, an appeal of nonjudicial punishment shall be
submitted within 5 working days, excluding weekends
a. Publication. Publication of nonjudicial and holidays, of the imposition of nonjudicial

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punishment, or the right to appeal shall be waived in
the absence of good cause shown. In computing this c. Contents of forwarding endorsement. The
appeal period, allowance shall be made for the time re- contents of the forwarding endorsement of the officer
quired to transmit communications pertaining to the who imposed the punishment should normally include:
imposition of nonjudicial punishment and the appeal
therefrom through the mails. The appeal period (1) Comment on any assertions of fact contained in
commences to run from the date of the imposition of the letter of appeal which the officer who imposed the
the punishment, even though all or any part of the punishment considers to be inaccurate or erroneous.
punishment imposed is suspended.
(2) Recitation of any facts concerning the offenses
(2) If it appears that good cause may exist which which are not otherwise included in the appeal papers.
would make it impracticable or extremely difficult for If such factual information was brought out at the
the accused to prepare and submit the appeal within the captain's mast/office hours hearing of the case, the
5-day period, the accused should immediately advise endorsement should so state and include any comment
the officer who imposed the punishment why good in regard thereto made by the appellant at the captain's
cause exists and request an appropriate extension of mast/office hours. Any other adverse factual
time within which to submit the appeal. Upon receipt information set forth in the endorsement, unless it
of such a request, the officer who imposed the recites matters already set forth in official service
nonjudicial punishment shall determine whether good record entries, should be referred to appellant for
cause was shown and shall advise the offender that an comment, if practicable, and he should be given an
extension of time is or is not granted. Absent such a opportunity to submit a statement in regard thereto or
request for extension, the officer acting on the appeal state that he does not wish to make any statement.
shall determine whether good cause was shown in an
appeal submitted more than 5 days after the imposition (3) As an enclosure, a copy of the completed mast
of the nonjudicial punishment. report form--NAVPERS 1626/7 (Rev. 8-81) or Unit
Punishment Book--NAVMC 10132 (Rev. 10-81 or
b. Procedures NAVMC 10132 Rev. 8-75).

(1) When the officer who imposed the (4) As enclosures, copies of all documents and
punishment is not the accused's immediate signed statements which were considered as evidence
commanding officer, the latter may forward the appeal at the captain's mast/office hours hearing or, if the
directly to the officer who imposed the punishment for nonjudicial punishment was imposed on the basis of
forwarding under section 0117. Similarly, the action the record of a court of inquiry or other fact-finding
of the superior on appeal may be forwarded by the body, a copy of that record, including the findings of
officer who imposed the punishment directly to the fact, opinions and recommendations, together with
offender's commanding officer for delivery. Copies of copies of any endorsements thereon.
the correspondence should be provided for
intermediate authorities in the chain of command. (5) As an enclosure, a copy of the appellant's
record of performance as set forth on service record
(2) In any case where nonjudicial punishment is page 9 (Navy) or Record of Service and NAVMC
imposed on the basis of information contained in the 118(3) (Marine).
record of a court of inquiry or fact-finding body, a
copy of the record, including the findings, opinions, 0117 AUTHORITY TO ACT ON NON-
and recommendations, together with copies of JUDICIAL PUNISHMENT
endorsements thereon, shall, except where the interests APPEALS
of national security may be adversely affected, be
made available to the accused for examination in a. When the officer who imposed punishment is in a
connection with the preparation of an appeal. In case Navy chain of command. Any appeal from nonjudicial
of doubt, the matter shall be referred to the Judge punishment in accordance with paragraph 7 of Part V,
Advocate General for advice. MCM shall, in the absence of specific direction to the

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contrary by an officer authorized to convene general command and in which the officer who imposed
courts-martial and superior in the chain of command to punishment is not a general officer in command, the
the officer who imposed the punishment, be forwarded appeal shall, in the absence of specific direction to the
to the area coordinator or to a subordinate commander contrary by the Commandant, be made to the Marine
authorized to convene general courts-martial and Corps general officer in command geographically
designated by the area coordinator for this purpose. nearest the officer who imposed the punishment.
When the cognizant area coordinator or a designated
subordinate commander is not superior in rank or c. When punishment is imposed within a
command to the officer who imposed the punishment multiservice command or unit
or when the punishment is imposed by a commanding
officer who is an area coordinator or a designated (1) An appeal from nonjudicial punishment
subordinate commander, the appeal shall be forwarded imposed by a multiservice commander or officer in
to the officer authorized to convene general courts- charge shall, in the case of Navy personnel, be made to
martial and next superior in the chain of command to the nearest area coordinator or to a subordinate
the officer who imposed the punishment. For mobile commander authorized to convene general courts-
units, the area coordinator or designated subordinate martial designated by the area coordinator for this
commander for the above purpose is the area purpose. However, when such area coordinator or
coordinator or designated subordinate commander designated subordinate commander is not superior in
most accessible to the unit at the time of the rank to the officer who imposed the punishment, the
forwarding of the appeal. appeal shall, in the absence of specific direction to the
contrary by the Chief of Naval Operations, be made to
b. When the officer who imposed punishment is in the naval officer exercising general court-martial
the chain of command of the Commandant of the jurisdiction geographically nearest and superior in rank
Marine Corps. Any appeal from nonjudicial to the officer who imposed the punishment. If
punishment in accordance with paragraph 7 of Part V, directed, or in the event that an officer cannot be found
MCM shall, in the absence of specific direction to the who is superior in rank to the officer who imposed the
contrary by an officer authorized to convene general punishment, the appeal shall be made to the Chief of
courts-martial and superior in the chain of command to Naval Operations. In the case of Marine Corps
the officer who imposed the punishment, be made to personnel, an appeal from nonjudicial punishment
the officer who is next superior in the operational chain shall, in the absence of specific direction to the
of command to the officer who imposed the contrary by the Commandant, be made to the Marine
punishment. When such review is impracticable due Corps general officer in command geographically
to operational commitments, as determined by the nearest and superior in rank to the officer who imposed
officer who imposed punishment, appeal from the punishment. If directed, or in the event that an
nonjudicial punishment shall be made to the Marine officer cannot be found who is superior in rank to the
officer authorized to convene general courts-martial officer who imposed the punishment, the appeal shall
geographically nearest and senior to the officer who be made to the Commandant.
imposed the punishment. That officer may delegate
appellate authority to any commanding officer in his (2) An appeal from nonjudicial punishment
organization who is senior in grade and in level of imposed by an officer of the Marine Corps or Navy
command to the officer who imposed punishment. In designated as a commanding officer pursuant to
no case, however, shall an officer not authorized to section 0106d shall be made to the commander of the
convene general courts-martial act on an appeal which, multiservice command who made the designation if
absent the impracticable circumstances, would have such commander specifically so directs. In the absence
been acted on by an officer authorized to convene of such direction, an appeal from nonjudicial
general courts-martial. The appellant need not be, at punishment imposed by an officer of the Marine Corps
the time of his appeal, a member of an organization shall be made to the Marine Corps general officer in
within the chain of command of the officer acting on command geographically nearest and superior in rank
the appeal. In those cases in which the Commandant to the officer who imposed the punishment unless
of the Marine Corps is the next superior in the chain of otherwise directed by the Commandant of the Marine

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Corps. Absent direction to the contrary from the accused's prior waiver of the right to demand trial by
multiservice commander, an appeal from nonjudicial court-martial), but an individual who is not attached to
punishment imposed by an officer of the Navy shall be or embarked in a vessel retains the right to demand
made to the nearest area coordinator or to a trial by court-martial for any added offense which
subordinate commander authorized to convene general occurred subsequent to the date of the nonjudicial
courts-martial designated by the area coordinator for punishment which was set aside.
this purpose. However, when such area coordinator or
designated subordinate commander is not superior in 0118 SUSPENSION, MITIGATION,
rank to the officer who imposed the punishment, the REMISSION, SETTING ASIDE, AND
appeal shall be to the naval officer exercising general VACATION OF SUSPENSION
court-martial jurisdiction geographically nearest and
superior in rank to the officer who imposed the a. Definition of "successor in command." For
punishment. purposes of Article 15, UCMJ, and this chapter, the
d. Delegation of authority to act on appeals. Such term "successor in command" refers to an officer
authority may be delegated in accordance with the succeeding to the command by being detailed or
provisions of section 0106c. An officer who has succeeding thereto as described in U.S. Navy Regula-
delegated his nonjudicial punishment powers to a tions, 1990. The term is not limited to the officer next
principal assistant under section 0106c may not act on succeeding.
an appeal from punishment imposed by such principal
assistant. In such cases and in other cases where it b. Authority to suspend, mitigate, remit, set aside:
may be inappropriate for the officer designated by new commander. When a person upon whom
subsection a or b to act on the appeal (as where an nonjudicial punishment has been imposed is thereafter,
identity of persons or staff may exist with the by competent transfer orders (including temporary
command which imposed the punishment), such fact additional duty orders), assigned to another command,
should be noted in forwarding the appeal. unit, or activity, or returns to the parent activity after
temporary additional duty elsewhere, the receiving
e. Rehearing after appeal. A superior authority, in commanding officer (or officer in charge) and his
acting on an appeal, may set aside a nonjudicial successor in command may, under article l5(d), UCMJ,
punishment due to procedural error that materially and the conditions set forth in paragraph 6 of Part V,
prejudiced a substantial right of the member on whom MCM, exercise the same powers with respect to the
punishment was imposed, not amounting to a finding punishment imposed as may be exercised by the
of insufficient evidence to impose nonjudicial officer who imposed the punishment, provided that the
punishment. In such event, if the superior authority punishment so affected and, in the case of mitigation,
specifically authorizes such in his other action on the the punishment to which such punishment is mitigated,
appeal, additional proceedings under article 15, UCMJ, is one within the authority of such new commander to
may be conducted by the officer who imposed the impose.
original nonjudicial punishment, or his other successor
in command, with regard to those offenses for which c. Interruption of probationary period. The running
the appellant received nonjudicial punishment in the of the period of suspension of the punishment is
original proceeding. Any punishment imposed during interrupted by the unauthorized and unexcused
such additional proceedings may be no more severe absence of the probationer or by commencement of
than that awarded during the original proceedings proceedings to vacate suspension of the punishment.
unless other offenses, which occurred subsequent to The running of the period of suspension of punishment
the date of the nonjudicial punishment set aside, are resumes as of the date the probationer's unauthorized
included in the offenses charged and for which pun- absence ends, or as of the date of the interruption due
ishment is imposed. An individual, whether or not to initiation of vacation proceedings if proceedings to
attached to or embarked in a vessel, has no right to vacate suspension of the punishment are concluded
demand trial by court-martial for those offenses for without vacation of the punishment. Similarly, the
which the rehearing was authorized (unless the appeal running of the period of suspension resumes as of the
was granted on a claim pertaining to the validity of the date of the interruption due to initiation of vacation

1-23
proceedings as to any portion of the punishment not (b) the suspect is a commander with special
vacated as a result of the proceedings. court-martial convening authority; or

d. Vacation of suspension. A commander (or officer (c) in the judgment of the superior commander:
in charge) may only vacate a suspension of punishment
if a violation of the conditions of suspension occurs 1. the incident in question may generate
within the period of suspension. Before vacating a significant adverse publicity;
suspension, a commander (or officer in charge)
ordinarily shall notify the service member and give that 2. formal disciplinary action or a
member the opportunity to respond. Although a recommendation for administrative separation
hearing is not required to vacate a suspension, if the processing may result; or
punishment is of the kind set forth in article 15(e)(1)-
(7), MCM, the service member should, unless 3. other special circumstances warrant
impracticable, be given an opportunity to appear notification.
before the officer authorized to vacate suspension of (2) After nonjudicial punishment. Once the results
the punishment to present any matters in defense, of the nonjudicial punishment are final (i.e., the appeal
extenuation, or mitigation of the violations on which process is completed or waived), a final report will be
the vacation action is to be based. The order vacating sent to Navy Personnel Command (PERS-834) or
a suspension must be issued within 10 working days of Commandant of the Marine Corps (JAM) as
the commencement of the vacation proceedings. The appropriate. (See SECNAVINST 1920.6 (series), the
decision to vacate suspension of nonjudicial Military Personnel Manual; or the Marine
punishment is not appealable under paragraph 7 of Part LEGADMINMAN). If the officer imposing the
V, MCM. nonjudicial punishment is not a flag officer, the letter
report will be submitted via the first flag officer in the
0119 RECORDS OF NONJUDICIAL administrative chain of command. Fleet or Type
PUNISHMENT commanders may require the letter report be forwarded
through command channels. These required reports
a. Records. The records of nonjudicial punishment are separate and distinct from any reported nonjudicial
shall be maintained and disposed of in accordance with punishment that may be contained in investigations or
paragraph 8 of Part V, MCM, and implementing other correspondence. See Appendix A-1-q for a
regulations issued by the Chief of Naval Personnel and sample letter with endorsement.
the Commandant of the Marine Corps. The forms
used for the Unit Punishment Book are NAVPERS
1626/7 (Rev. 8-81), S/N 0106-LF-016-2636 and
NAVMC 10132 (Rev. 10-81) or NAVMC 10132
(Rev. 8-75), S/N 0000-00-002-1305. See section 0148
for procurement information of these forms.

b. Report of officer nonjudicial punishment

(1) Report of misconduct. All Navy officer

misconduct must be reported to Navy Personnel
Command (PERS-834). Marine officer misconduct
must be reported per MCO 5800.8
(LEGADMINMAN). Navy officer misconduct shall
be reported if:

(a) the suspect is in the grade of captain or

above;

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 PART C - COURTS-MARTIAL

SUBPART C1 - PRETRIAL MATTERS

0120 DESIGNATION OF ADDITIONAL Whidbey Island

CONVENING AUTHORITIES Commanding Officer, U.S. Naval
Station, Roosevelt Roads
a. General courts-martial. The Secretary of the Commanding Officer, Naval Air
Navy, acting under article 22(a)(8), UCMJ, has Station, Lemoore
authorized the following officers, when in an active Commandant, Naval District
duty or inactive duty training status, to convene Washington
general courts-martial. This list is in addition to those Commander, Combat Logistics Squadron
officers authorized to convene general courts-martial TWO, Naval Weapons Station Earle, New
by articles 22(a)(5) through (7) and 22(a)(9), UCMJ: Jersey
Commander, Strategic Communications Wing
(1) All flag or general officers, or their immediate ONE
temporary successors, in command of units or Commander, Marine Corps Base, Quantico
activities of the Navy or Marine Corps. Commander, Naval Installations

(2) The following officers or their successors in (3) The Secretary of the Navy has designated and
command: empowered the Commanding Officer, Naval Station,
Chief of Naval Operations Norfolk, VA, and the Commanding Officer, Marine
Commandant of the Marine Corps Detachment, U.S. Disciplinary Barracks, Fort Leave-
Vice Chief of Naval Operations nworth, KS, to exercise limited general court-martial
Deputy Commander, jurisdiction for the purpose of performing the functions
U.S. Naval Forces, Europe described in R.C.M. 1114, 1203(d), and 1204(b)(1),
Deputy Chief of Naval Personnel MCM. See section 0159d concerning the clemency
Commanders, Fleet Air Commands powers of the Commanding Officer, Naval Station,
Commander, Naval Reserve Force Norfolk, VA, and the Commanding Officer, Marine
Commander, Naval Reserve Forces Command Detachment, U.S. Disciplinary Barracks, Fort
Commander, Naval Air Force Reserve Leavenworth, KS.
Commanders, Naval Regions
Commander, U.S. Naval Activities, Spain (4) Any officer whose nomination for promotion to
Commander, U.S. Naval Activities, flag or general officer rank has been confirmed by the
United Kingdom Senate and who is serving in a flag or general officer
Commanding Officer, U.S. Naval Support billet and in command of a naval service unit or
Activity, Naples activity, or is the immediate temporary successor in
Commander, Naval Air Warfare Center command of such an officer.
Weapons Division, China Lake
Commander, Naval Training Center, b. Special courts-martial. The Secretary of the Navy,
Great Lakes acting under article 23(a)(7), UCMJ, has authorized
Commanding Officer, Naval Air Station, the following officers, when in an active duty or
Key West inactive duty training status, to convene special courts-
Commander, U.S. Naval Forces, Marianas martial. This list is in addition to those officers
Commanding Officer, Marine Corps authorized to convene special courts-martial by article
Logistics Base, Barstow 23(a)(5) and (6), UCMJ:
Commanding Officer, Naval Air Station,
Sigonella (1) Commanding officers of all battalions and
Commanding Officer, Naval Air Station, squadrons, including both regular and reserve Marine

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Corps commands. authorization be obtained from the Secretary of the
Navy pursuant to article 22(a)(8), UCMJ.
(2) Any commander whose subordinates in the b. Special and summary courts-martial. If authority
operational or administrative chain of command have to convene special or summary courts-martial is
authority to convene special courts-martial. desired for commanding officers other than those listed
in subsections 0120b and 0120c, and such command-
(3) All commanders and commanding officers of ing officers are not empowered by statute or regulation
units and activities of the Navy, including to convene such courts, a letter shall be forwarded to
precommissioning units commanded by lieutenant the Judge Advocate General (Code 20), via the Chief
commanders (0-4) or above, but not including inactive of Naval Operations or the Commandant of the Marine
duty training Naval Reserve units. Corps (JAM), as appropriate, with the request that
authorization be obtained from the Secretary of the
(4) All directors, Marine Corps Districts. Navy pursuant to article 23(a)(7), UCMJ, or article
24(a)(4), UCMJ, as appropriate.
(5) All administrative officers, U.S. Naval
Shipyards. c. Separate and detached units. The officer
designating an organization as separate or detached
(6) All inspector-instructors and site commanding pursuant to U.S. Navy Regulations, 1990, may request
officers, Marine Corps Reserve organizations. that the Judge Advocate General obtain from the
Secretary of the Navy the authority for that
(7) Commanding officers and officers in charge of organization's commanding officer or officer in charge
organic combat service support organizations to convene special or summary courts-martial. The
providing combat service support to Marine request shall state that the organization has been
Expeditionary Brigades, Marine Expeditionary Units, designated as separate or detached and shall reference
or comparable Marine Air-Ground Task Forces. article 23 (a)(7), UCMJ. No request is required for
commands empowered under subsection 0120b(1).
(8) Commanding officers of Marine Expeditionary
Units and Marine Expeditionary Unit Service Support d. Commanding officers of staff enlisted personnel.
Groups. If authority to convene special or summary courts-
martial is desired for an officer designated as the
c. Summary courts-martial. Those officers who are commanding officer of staff enlisted personnel under
empowered to convene general and special courts- the provisions of U.S. Navy Regulations, 1990, the
martial may convene summary courts-martial. In addi- designating commander shall request the Judge
tion, the Secretary of the Navy has empowered all Advocate General to obtain authorization from the
commanders, commanding officers, and officers in Secretary of the Navy pursuant to article 23(a)(7),
charge (if authorized) of inactive duty training Naval UCMJ.
and Marine Corps Reserve units and activities of the
Navy and Marine Corps, who are in a duty status, to e. Authority limited to summary courts-martial.
convene summary courts-martial. Requests for authority to convene summary courts-
martial are processed by the Judge Advocate General
0121 REQUESTS FOR AUTHORITY TO with other requests for authority to convene special
CONVENE COURTS-MARTIAL courts-martial. A single letter of authorization, signed
by the Secretary, will empower all addressees to
a. General courts-martial. If authority to convene convene special courts-martial. Upon receipt of the
general courts-martial is desired for an officer who is Secretary's letter, therefore, a superior commander who
not empowered by statute or regulation to convene originally requested only summary court-martial
such courts-martial, a letter shall be forwarded to the authorization for his subordinate commander shall,
Judge Advocate General (Code 20), via the Chief of pursuant to section 0122(a)(1), issue a letter to that
Naval Operations or the Commandant of the Marine subordinate commander restricting the authority
Corps (JAM), as appropriate, with the request that granted to the convening of summary courts-martial.

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Copies of such letters of restriction shall be forwarded b. Units attached to ships. The commanding officer
to the Judge Advocate General (Code 20). or officer in charge of a unit attached to a ship of the
f. Requests for courts-martial convening authority Navy for duty therein should, as a matter of policy
shall contain the following information, if applicable: while the unit is embarked therein, refrain from
exercising any power he might possess to convene and
(1) The number of cases referred to the type of order trial by special or summary court-martial,
court-martial for which the convening authority is referring all such matters to the commanding officer of
being sought. the ship for disposition. The foregoing policy does not
apply to Military Sealift Command vessels operating
(2) If reorganization or downgrading of a under a master, nor is it applicable where an organized
command billet is the reason for such a request, state unit is embarked for transportation only. When an
same and how the change affects the current and organized unit is embarked for transportation only in a
prospective convening authority. ship of the Navy, the officer in command of such
organized unit shall retain the authority possessed over
(3) State who would handle military justice matters such unit prior to embarkation, including disciplinary
if the requested convening authority is not approved. authority. Under ordinary circumstances, the internal
control and discipline of a unit embarked for trans-
(4) The number of commands and tenant portation only shall be left to the commanding officer
commands the prospective convening authority is of that unit. Nothing in the foregoing shall be
responsible for, both operationally and construed as impairing the paramount authority of the
administratively. commanding officer of the ship, including disciplinary
authority, over all personnel of the naval service
(5) The number of personnel, officer and enlisted, embarked. In the case of units embarked for
the prospective convening authority is responsible for, transportation only, however, the commanding officer
both operationally and administratively. of the ship should take disciplinary action under the
UCMJ over members of such embarked units only in
(6) If applicable, the geographical reasons that unusual cases concerning incidents occurring on board
necessitate the appointment of such authority. the ship.

g. Record maintenance. Copies of all Secretarial 0123 EXERCISE OF COURT-MARTIAL

letters of authorization are maintained in the Criminal JURISDICTION OVER RETIRED,
Law Division, Office of the Judge Advocate General. RESERVE, FLEET RESERVE, FLEET
MARINE CORPS RESERVE, AND
0122 GENERAL RESTRICTIONS ON DISCHARGED PERSONNEL
EXERCISE OF COURT-MARTIAL
JURISDICTION a. Policy. In all cases in which jurisdiction is
dependent upon the provisions of article 2(a)(4), (5), or
a. Special and summary courts-martial (6), and article 3(a), (b), or (c), UCMJ, the following
policies apply:
(1) The exercise of authority to convene summary
and special courts-martial may be restricted by a (1) No case of a retired member of the regular
competent superior commander. A summary court- component of the Navy or Marine Corps not on active
martial convening authority is authorized to direct a duty but entitled to receive pay, a retired member of
pretrial investigation under article 32, UCMJ. the Naval Reserve or Marine Corps Reserve not on
active duty who is receiving hospitalization from an
(2) A special court-martial convening authority armed force, or a member of the Fleet Reserve or Fleet
may not refer a capital offense to trial without the prior Marine Corps Reserve not on active duty will be
consent of the officer exercising general court-martial referred for trial by court-martial without the prior
jurisdiction over the command. authorization of the Secretary of the Navy. This rule
applies to offenses allegedly committed by such

1-27
persons regardless of whether they were on active duty apprehension, arrest, or confinement of any person
either at the time of the alleged offense or at the time who is amenable to trial by court-martial solely by
they were accused or suspected of the offense. reason of the provisions of article 2(a)(4), (5), or (6) or
Members described in this subsection may not be article 3(a), (b), or (c), UCMJ.
recalled to active duty solely for trial by court-martial.
Such members are amenable to court-martial jurisdic- d. Jurisdiction over reserve component personnel
tion at all times and, if referred to court-martial, are under article 3(d), UCMJ. A member of a reserve
directed to appear. component subject to the UCMJ is not, by virtue of
termination of a period of active duty or inactive duty
(2) No case in which jurisdiction is based on article training, relieved from amenability to jurisdiction of
3(a), (b), or (c), UCMJ, will be referred for trial by the UCMJ for an offense against the UCMJ committed
court-martial without the prior authorization of the during such period of active duty or inactive duty
Secretary of the Navy. training.

(3) If authorization is withheld under subsections e. Order to active duty in the case of reserve
(1) or (2), the Judge Advocate General shall indicate component personnel not on active duty
alternative action or actions, if any, to the convening
authority. (1) When jurisdiction is based upon article 3(d),
UCMJ, members of a reserve component not on active
b. Request for authorization. Requests for duty may be ordered to active duty involuntarily only
authorization in cases in which jurisdiction is based on by an officer described in subsection (4) for the
article 3(a), (b), or (c), UCMJ, should contain the purpose of investigation under article 32, UCMJ, trial
following information: by court-martial, or imposition of nonjudicial
punishment for offenses committed while subject to
(1) the nature of the offense or offenses charged; the UCMJ without regard to any change between
active and reserve service or within different categories
(2) a summary of the evidence in the case; of reserve service subsequent to commission of the
offense.
(3) the facts showing amenability of the accused or
suspected person to trial by court-martial; (2) Requests for an order to active duty under this
subsection may be submitted only by officers
(4) whether civil jurisdiction exists; empowered to convene courts-martial. Funding for
these orders should be tasked to the appropriation used
(5) the military status of the accused or suspected on the original set of orders during which the event
person at the present and at the time of the alleged necessitating recall occurred. See section 0145.
offense; and Decisions regarding funding for recall of a
servicemember do not confer any procedural or
(6) the reasons which make trial by court-martial substantive rights upon the member.
advisable.
(3) Requests for an order to active duty under this
Requests shall be addressed to the Secretary of the subsection shall:
Navy, via the Judge Advocate General (Code 20) or
Commandant of the Marine Corps (JAM), as (a) contain the complete identity of the accused
appropriate, and shall be forwarded by air mail or other (grade, full name, Social Security number, designator);
expeditious means. If considered necessary, authoriza-
tion may be requested directly by message or (b) include a detailed summary of the con-
telephone. templated charges and specifications or a copy of the
charge sheet, if available (care should be exercised to
c. Apprehension and restraint. Specific authorization avoid triggering the speedy trial provisions of R.C.M.
of the Secretary of the Navy is required prior to 707, MCM;

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 (2) Reserve component personnel ordered to active
duty with Secretarial approval may be retained on
(c) provide a summary of evidence in the case; active duty to serve a punishment of confinement or
other restraint on liberty, the execution of which is not
(d) state facts showing amenability to trial by precluded by the terms of a pretrial agreement. Unless
court-martial or imposition of nonjudicial punishment; retention on active duty is authorized by other
authority, such persons must be released from active
(e) indicate the military status, unit to which duty no later than the close of business 1 full work day
assigned and its location, and home address of the after completion of disciplinary proceedings or service
accused at the time of submission and at the time of of the sentence to confinement or other restraint on
commission of the alleged offenses; and liberty. See R.C.M. 202(c), MCM and section 0134.

(f) indicate where the accused should be ordered g. Tolling statute of limitations. The fore-
to active duty and why the order to active duty is going rules shall not impede the preferral and
advisable; processing of sworn charges under article 30, UCMJ,
when such preferral and processing are necessary to
(g) indicate the appropriation used on the prevent barring of trial by the statute of limitations.
original set of orders during which the event See article 43, UCMJ.
necessitating recall occurred.
0124 EXERCISE OF COURT-MARTIAL
(4) The request should be addressed to an officer JURISDICTION IN CASES TRIED IN
empowered to convene a general court-martial in the DOMESTIC OR FOREIGN CRIMINAL
chain of command of the accused at the time of its COURTS
submission, as designated in section 0120a, and who is
superior in grade to the submitting officer, or to the a. Policy. When a person in the naval service has
Secretary of the Navy, if confinement authority is been tried in a state or foreign court, whether convicted
requested. See sections 0127d and 0134. If necessary, or acquitted, or when a member's case has been
the request to order an accused to active duty under "diverted" out of the regular criminal process for a
this subsection may be made directly by message or probationary period, or has been
telephone. adjudicated by juvenile court authorities, military
charges shall not be referred to a court-martial or be
(5) Unless the order to active duty was approved the subject of nonjudicial punishment proceedings for
by the Secretary, Under Secretary, or Assistant the same act or acts, except in those unusual cases
Secretary of the Navy, the accused may not be where trial by court-martial or the imposition of
sentenced to confinement or be required to serve a nonjudicial punishment is considered essential in the
punishment of any restraint on liberty during a period interests of justice, discipline, and proper
other than a period of inactive duty training or active administration within the naval service. Such unusual
duty. cases shall not be referred to trial by court-martial or
be the subject of nonjudicial punishment proceedings
f. Release from active duty of reserve component without specific permission as provided below. This
personnel described in subsection e policy is based on comity between the Federal
Government and state/foreign governments and is not
(1) Reserve component personnel ordered to active intended to confer additional rights upon the accused.
duty without Secretarial approval must be released
from active duty no later than the close of business 1 b. Criteria. Referral for trial or the imposition of
full work day after completion of disciplinary nonjudicial punishment within the terms of this policy
proceedings, i.e., announcement of the sentence by a shall be limited to cases that meet one or more of the
court-martial or imposition of punishment under article following criteria:
15, UCMJ.
(1) Cases in which punishment by civil authorities

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consists solely of probation, and local practice, or the authorities, and the circumstances bringing the case
actual terms of probation, do not provide rigid within one or more of the exceptions to the general
supervision of probationers, or the military duties of policy. Permission of the officer exercising general
the probationer make supervision impractical. court-martial jurisdiction over the command is not re-
quired for summary court-martial proceedings if the
(2) Cases in which civilian proceedings concluded civilian adjudication or diversion occurs after the
without conviction for any reason other than acquittal military charges have been referred to a court-martial.
after trial on the merits.
(3) Reporting requirements. The provisions of this
(3) Other cases in which the interests of justice and section do not affect the reporting requirements or
discipline are considered to require further action other actions required under other regulations in cases
under the UCMJ (e.g., where conduct leading to trial of convictions of service personnel by domestic or
before a state or foreign court has reflected adversely foreign courts and adjudications by juvenile court
upon the naval service or when a particular and unique authorities.
military interest was not or could not be adequately
vindicated in the civilian tribunal). d. Limitations. Personnel who have been tried by
courts that derive their authority from the United
c. Procedure States, such as U.S. District Courts, shall not be tried
by court-martial or be the subject of nonjudicial
(1) General and special courts-martial. No case punishment for the same act or acts.
described in subsection b shall be referred for trial by
general or special court-martial without the prior 0125 EXERCISE OF COURT-MARTIAL
permission of the Judge Advocate General. For JURISDICTION OVER MAJOR
purposes of this rule, permission of the Judge FEDERAL OFFENSES
Advocate General to refer charges to a court-martial
includes permission for trial itself; accordingly, once a. Background. The Federal civil authorities have
permission for referral has been obtained, no additional concurrent jurisdiction with military authorities over
permission is required. Requests for such permission offenses committed by military personnel which
shall be forwarded by the general court-martial violate both the Federal criminal law and the UCMJ.
authority concerned (or by the special court-martial The Attorney General and the Secretary of Defense
authority concerned via the general court-martial have agreed on guidelines for determining which
authority) to the Judge Advocate General (Code 20) authorities shall have jurisdiction to investigate and
(via the Commandant of the Marine Corps (JAM) or prosecute major crimes in particular cases. See
copy to the Chief of Naval Personnel, as appropriate). Appendix 3, MCM. The administration of this
Permission of the Judge Advocate General is not program on behalf of the naval service has been
required for court-martial proceedings if the civilian assigned to the Naval Criminal Investigative Service
adjudication or diversion occurs after the military Command (NCIS). Guidelines are set forth in
charges have been referred to a court-martial. SECNAVINST 5520.3 series.

(2) Summary courts-martial and nonjudicial b. Limitation on court-martial jurisdiction. In order

punishment proceedings. No case described in to ensure that actions under the UCMJ do not preclude
subsection b shall be referred for trial by summary appropriate action by civilian Federal authorities in
court-martial, or be the subject of nonjudicial cases likely to be prosecuted in U.S. District Courts,
punishment proceedings without the prior permission convening authorities shall ensure that appropriate
of the officer exercising general court-martial jurisdic- consultation under the Memorandum of Understanding
tion over the command. Grants of such permission between the Departments of Defense and Justice has
shall be reported by the general court-martial authority taken place prior to issuance of a grant of immunity,
concerned by means of a letter addressed to the Judge approval of a pretrial agreement, or trial by court-
Advocate General (Code 20) in which he shall martial. See Appendix 3, MCM. Accordingly, com-
describe the offense alleged, the action taken by civil manding officers receiving information indicating that

1-30
naval personnel have committed a major Federal
offense (including any major criminal offense, as
defined in SECNAVINST 5520.3 series, committed
on a naval installation) shall refrain from taking action 0126 DETERMINATION OF STATUS OF
with a view to trial by court-martial, but shall refer the CASE AS NATIONAL SECURITY
matter to the senior resident agent of the cognizant CASE, INVESTIGATION OF
NCIS office for a determination in accordance with SUSPECTED NATIONAL SECURITY
SEC- NAVINST 5520.3 series. In the event that the CASES AND EXERCISE OF
investigation of any such case is referred to a Federal JURISDICTION IN SUCH CASES
civilian investigative agency, any resulting prosecution
normally will be conducted by the cognizant United a. National security case defined. "National security"
States Attorney, subject to the exceptions set forth is defined at Mil. R. Evid. 505(b)(2), MCM and
below. further defined at R.C.M. 305(h)(2)(B), MCM. A case
shall be defined and designated as a national security
c. Exceptions case if, in the opinion of one of the National Security
Case Disposition Authorities (NSCDA) listed in
(1) Where it appears that naval personnel have subsection 0126f below, it is a case which, to any
committed several offenses, including both major serious degree, involves the compromise of a military
Federal offenses and serious but purely military of- or defense advantage over any foreign nation or
fenses, naval authorities are authorized to investigate terrorist group; involves an allegation of willful
all of the suspected military offenses, and such of the compromise of classified information; affects our
civil offenses as may be practicable, and to retain the military or defense capability to successfully resist
accused for prosecution. Any such action shall be hostile or destructive action, overt or covert; or
reported immediately to the Judge Advocate General involves an act of terrorism. Such cases include an
and to the cognizant officer exercising general court- attempt or conspiracy to commit such offenses, as well
martial jurisdiction. as conduct aiding and abetting in the commission of
such offenses or unlawfully assisting thereafter. Such
(2) When, following referral of a case to a civilian offenses include, but are not limited to, UCMJ articles
Federal investigative agency for investigation, the 81, 92 (for violations of SECNAVINST 5510.36 and
cognizant United States Attorney declines prosecution, U.S. Navy Regulations), 104, 106, 106a, 107, 131, and
the investigation normally will be resumed by the 134; and provisions of the U.S. Code, such as 18 USC
NCIS and the command may then commence court- 792-94, 798, 1001, 2151-56, 2331-39b, 2381-85,
martial proceedings as soon as the circumstances 2388-90; 42 USC 2272-77; and 50 USC 783.
warrant.
b. Case not designated as a national security case. A
(3) If, while investigation by a Federal civilian case may involve matters and/or materials relating to
investigative agency is pending, existing conditions the security of the United States, yet need not be
require immediate prosecution by naval authorities, the designated a national security case if, in the opinion of
officer exercising general court-martial jurisdiction the cognizant NSCDA, the case does not, to a serious
will contact the cognizant United States Attorney to degree, involve compromise of a military or defense
seek approval for trial by court-martial. If agreement advantage over a foreign nation or terrorist group;
cannot be reached at the local level, the matter shall be involve the willful compromise of classified
referred to the Judge Advocate General for disposition. information; substantially affect our military or defense
capability to resist hostile or destructive action
d. Related matters. See chapter VI concerning the successfully, covertly or overtly; or constitute an act
interview of naval personnel by Federal investigative of terrorism.
agencies and the delivery of personnel to Federal
authorities. See sections 0126 and 0138 through 0140 c. Referral to the Naval Criminal Investigative
regarding grants of immunity in cases involving Service. Within the DON, NCIS is responsible for the
civilian witnesses or national security. investigation of actual, suspected, or alleged national

1-31
security incidents including, but not limited to, those above, are directed to forward such cases to the
offenses enumerated in subsection a above. appropriate NSCDA listed below for disposition. This
Commanders and ommanding officers shall provision is not intended to withdraw or limit the
immediately refer any such incident to NCIS for actual jurisdictional authority of commands identified
investigation. SECNAVINST 5520.3 and 5510.36 under R.C.M. 306(a) and 401(a), MCM. This
(series) also pertain. Upon the initiation of any NCIS provision is promulgated for the exclusive benefit of
investigation, NCIS shall notify the appropriate the Government and does not confer any benefit upon
Department of Justice investigative agency in an accused. It shall not be construed to support a
compliance with DODDIR 5525.7. jurisdictional challenge to a Courts-Martial convened
by an officer not listed below, or to afford an accused
d. Preliminary inquiry. Concurrent with NCIS in such Courts-Martial any other relief. All officers
notification and consistent with the NCIS investigative otherwise empowered to dispose of offenses who
prerogative, the commander or commanding officer receive reports or charges of offenses involving
shall initiate a preliminary inquiry in accordance with national security shall, after taking action prescribed in
SECNAVINST 5510.36 para. 12-2 and direct the subsections 0126c-e, forward the completed
inquiry be completed within 72 hours. The investigation of such reports or charges for disposition
commander concerned shall also ensure the required directly and without delay to an appropriate NSCDA
72-hour reports are made under para. 12-4 and 12-8 of listed below. Second echelon commanders who report
SECNAVINST 5510.36. These required 72-hour to the Chief of Naval Operations in the administrative
reports shall not be delayed awaiting a complete chain of command who are not themselves a NSCDA
assessment of the potential compromise. In addition, shall forward such reports to Commander, U.S.
the commander or commanding officer shall notify Atlantic Fleet. Those NSCDA listed below may
CNO (N2) in all cases involving sensitive dispose of such reports or charges by any means
compartmented information or intelligence information authorized under R.C.M. 306(c) or 401(c), MCM, to
(i.e., intelligence sources or methods, NOFORN include returning the case for disposition to any
material). convening authority as they may designate. The
following officers are designated NSCDAs:
e. Notice to the Judge Advocate General and
National Security Case Disposition Authority (1) Chief of Naval Operations;
(NSCDA). If any NCIS investigation or preliminary
inquiry described in subsection 0126c or 0126d (2) Commandant of the Marine Corps;
indicates that the case may meet the criteria of
subsection 0126a or that a suspect may have (3) Vice Chief of Naval Operations;
committed any of the offenses enumerated in
subsection 0126a, whether or not such violation might (4) Assistant Commandant of the Marine Corps;
also be chargeable under the UCMJ, within the same
72 hours, the commanding officer and NCIS shall (5) Commanders, U.S. Atlantic and Pacific Fleets,
notify the Judge Advocate General (Code 17) and, for and U.S. Naval Forces, Europe;
Marine Corps commands, the Judge Advocate
Division (Military Justice). Within the same 72 hours, (6) Commander, U.S. Naval Forces Central
the commanding officer shall also notify the Command;
appropriate NSCDA listed in section 0126f. In the
event more than one NSCDA may have cognizance, (7) Commanders, U.S. Marine Forces, Atlantic and
coordinate with the next NSCDA in the administrative Pacific;
chain of command.
(8) Commanders, Sixth and Seventh Fleets;
f. Limitations on convening courts-martial.
Commands authorized under R.C.M. 306(a) and (9) Commanders, Naval Air Force, Submarine, and
401(a), MCM, to initially dispose of cases involving Surface Forces, U.S. Atlantic and Pacific Fleets;
national security, as defined in subsection 0126a

1-32
 (10) Commander, Naval Education and Training trial. See R.C.M. 304, 305, and 804(c)(2), MCM.
Command;
b. Counsel. Counsel shall be provided, if requested,
(11) Commanding General, Marine Corps Combat to an accused in pretrial confinement prior to the initial
Development Command, Quantico, VA; review of the confinement; however, the accused has
no right to an individual military counsel.
(12) Commanding General, Marine Corps Bases,
Japan; c. Preliminary (probable cause) review: Within 48
hours of the imposition of pretrial confinement under
(13) Commanding Generals, Marine Corps Bases, military control, a neutral and detached official must
Camp Lejeune and Camp Pendleton; and review the adequacy of the probable cause to believe
the confinee has committed an offense and of the
(14) Commander, U.S. Marine Forces, Reserve. necessity for pretrial confinement.

g. Courts-martial involving classified information. (1) This review does not require a hearing.
See SECNAVINST 5510.36 (series), Mil. R. Evid.
505, and R.C.M. 806, MCM, for procedures relating to (2) This determination need not be in writing,
trial of cases involving classified information. however, it is highly recommended that a written
record be maintained.
h. Reporting requirements by responsible command.
Regardless of national security status and in addition to (3) The reviewing official must be a neutral and
the 72 hour reporting requirement described above, in detached officer. The official may be the confinee's
all cases where a possible violation of criminal law commanding officer, but this is not required.
involves classified information, whether or not Additionally, nothing in this amendment prohibits the
designated a national security case, the responsible commander initially ordering an accused into pretrial
command, convening authority, or staff judge advocate confinement from conducting the 48-hour probable
will notify the Judge Advocate General (Code 17) : cause review.

(1) when criminal prosecution is contemplated. (4) The requirement for probable cause review is
Judge Advocate General (Code 17) notification does met, and therefore a separate determination of probable
not take precedence over, or substitute for, NCIS cause is not required, in the following circumstances:
notification required by subsection 0126c;
(a) the commanding officer, complying with
(2) whenever a major development occurs in the R.C.M. 305(d), personally orders the accused into
case or investigation (e.g., designation as a national confinement;
security case, apprehension, involvement of other
federal agencies); or (b) the 72-hour letter report, as required by
R.C.M. 305(h)(2), is signed by the commanding
(3) at least once every 30 days, whether or not officer within 48 hours of the imposition of
there has been a major development unless the case is confinement; or
being reported by the NSCDA. Include CNO (N2) in
the notification for all cases involving sensitive (c) the 7-day review of pretrial confinement, as
compartmented information or intelligence information required by R.C.M. 305(i) and conducted by a neutral
(i.e., intelligence sources or methods, NOFORN and detached initial reviewing officer, occurs within 48
material). hours of the imposition of confinement.

0127 PRETRIAL RESTRAINT OF d. Initial review officer. The officer exercising

ACCUSED general court-martial jurisdiction at the location of the
confinement facility shall designate one or more
a. Custody and restraint of accused before or during officers of the grade of 0-4 or higher (primary and

1-33
alternate) to act as the initial review officer for court-martial to be appropriate, but is not authorized to
purposes of R.C.M. 305(i)(2). The initial review convene such courts-martial, the charges and necessary
officer shall maintain a copy of the documents allied papers will be forwarded to the superior in the
considered and memorandum prepared under R.C.M. chain of command authorized to convene the type of
305(i)(6) in each case until completion of appellate court-martial deemed appropriate. The officer
review and shall forward a copy of the documents authorized to convene general courts-martial and
considered and the memorandum prepared to the superior in the chain of command to such officer in
officer exercising general court-martial jurisdiction command or charge, may, however, on the basis of a
from whom he derives the authority as initial review local arrangement with the area coordinator or the
officer. The officers designated as initial review designated subordinate commander, direct that such
officers should be neutral and detached, should be cases be forwarded to the area coordinator or the
selected for their maturity and experience, and, if prac- subordinate commander authorized to convene the type
ticable, should have command experience. of court-martial deemed appropriate and designated by
the area coordinator for this purpose. For mobile units,
e. Reserve component personnel. Except as provided the area coordinator or designated subordinate
in section 0134b(2), reserve component personnel on commander for this purpose is the area coordinator or
inactive duty training shall not be placed in pretrial designated subordinate commander most accessible to
confinement unless ordered to active duty with the the mobile unit at the time of the forwarding of the
approval of the Secretary, Under Secretary, or Assis- charges. See section 0129a for additional provisions in
tant Secretary of the Navy. See section 0123e(5). cases in which the forwarding officer is an accuser.
Subject to the terms of the local arrangement, forward-
0128 FORWARDING OF CHARGES ing to the area coordinator or designated subordinate
commander may also be resorted to even though the
a. Forwarding of charges by an officer in a Navy immediate or superior commanding officer of the
chain of command accused is authorized to convene the type of court-
martial deemed appropriate but finds such action
(1) General court-martial cases. When a impracticable.
commanding officer, in taking action on charges,
deems trial by general court-martial to be appropriate, b. Forwarding of charges by an officer in the chain
but is not authorized to convene such court or finds the of command of the Commandant of the Marine Corps.
convening of such court impracticable, the charges and When an officer in command or in charge, in taking
necessary allied action on charges, deems trial by general, special, or
papers will, in the absence of specific direction to the summary court-martial to be appropriate, but is not
contrary by an officer authorized to convene general empowered to convene a court as deemed appropriate
courts-martial and superior in the chain of command to for the trial of the case, the officer will, in the absence
such commanding officer, be forwarded to the area of specific direction to the contrary by an officer au-
coordinator or to the subordinate commander thorized to convene general courts-martial and superior
authorized to convene general courts-martial and in the chain of command to such officer, forward the
designated by the area coordinator for this purpose. charges and necessary allied papers through the chain
For mobile units, the area coordinator or designated of command to an officer exercising the kind of court-
subordinate commander for this purpose is the area martial jurisdiction deemed appropriate. See R.C.M.
coordinator or designated subordinate commander 401(c)(2), MCM. See also section 0129b for addi-
most accessible to the mobile unit at the time of tional provisions in cases in which the forwarding
forwarding of the charges. See section 0129a for officer is an accuser.
additional provisions in cases in which the forwarding
officer is an accuser. 0129 SUPERIOR COMPETENT
AUTHORITY DEFINED
(2) Special and summary courts-martial cases.
When an officer in command or in charge, in taking a. Accuser in a Navy chain of command. Whenever
action on charges, deems trial by special or summary a commanding officer comes within the purview of

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articles 22(b) and 23(b), UCMJ, the "superior martial judges may be detailed for trial of special
competent authority" as used in those articles is, in the courts-martial by the Chief Judge, the circuit military
absence of specific direction to the contrary by an judge, or the circuit military judge's designee.
officer authorized to convene general courts-martial
and superior in the chain of command to such accuser, (2) Qualifications and additional duties. The
the area coordinator or the subordinate commander au- qualifications of military judges and additional duties
thorized to convene general or special courts-martial, to which military judges may be assigned are set forth
as appropriate, and designated by the area coordinator in JAGINST 5813.4 series.
for this purpose. For mobile units, the area coordinator
or designated subordinate commander for this purpose (3) Oaths. A military judge, certified in accordance
is the area coordinator or designated subordinate com- with article 26(b), UCMJ, may take a one-time oath to
mander most accessible to the mobile unit at the time perform his duties faithfully and impartially in all cases
of forwarding of the charges. When the cognizant area to which detailed. The oath may be taken at any time
coordinator or designated subordinate commander is and may be administered by any officer authorized by
not superior in rank or command to the accuser, or article 136, UCMJ, and section 0902 of this manual to
when the accuser is an area coordinator or designated administer oaths. Once such an oath is taken, the
subordinate commander, or if it is otherwise military judge need not be resworn at any court-martial
impossible or impracticable to forward the charges as to which subsequently detailed.
specified above, they shall be forwarded to any
superior officer exercising the appropriate court- b. Counsel
martial jurisdiction. See R.C.M. 401 and 601(c),
MCM. (1) Detailing. Navy and Marine Corps judge advo-
cates may be detailed as trial and defense counsel by
b. Accuser in the chain of command of the the judge advocate's commanding officer, officer in
Commandant of the Marine Corps. Whenever a charge, or his designee. See section 0131 and 0132 for
commanding officer comes within the purview of procedures relating to requests for individual military
articles 22(b) and 23(b), UCMJ, the "superior com- counsel.
petent authority" as used in those Articles is defined as
any superior officer in the chain of command (2) Oaths. Any military counsel, certified in accor-
authorized to convene a special or general court- dance with article 27(b), UCMJ, may be given a one-
martial, as appropriate. If such an officer is not time oath. Such oath will customarily be administered
reasonably available, or if it is otherwise impossible or when military counsel is certified. The oath may be
impracticable to so forward the charges, they shall be given at any time and by any officer authorized by
forwarded to any superior officer exercising the article 136, UCMJ, and section 0902 of this manual to
appropriate court-martial jurisdiction. See R.C.M. 401 administer oaths. An officer certified under article
and 601(c), MCM. 27(b) who has taken such an oath need not be resworn
when detailed as counsel or serving as individual
0130 PERSONNEL OF COURTS-MARTIAL military counsel in any subsequent court-martial.

a. Military judges (3) Individual counsel, military (not certified) or

civilian, requested by the accused must be sworn in
(1) Detailing each case. Detailed counsel who are not certified in
accordance with article 27(b), UCMJ, must be sworn
(a) General court-martial judges. in each case. Counsel who have taken one-time oaths
General court-martial judges may be detailed for trial administered by the Army, Air Force, or Coast Guard
of general and special courts-martial by the Chief need not again be sworn in courts-martial convened in
Judge, the circuit military judge, or the circuit military the naval service. The oaths used for counsel not
judge's designee. administered a one-time oath will be those prescribed
in R.C.M. 807(b)(2) Dissuccion, MCM.
(b) Special court-martial judges. Special court-

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 (4) The following oath may be used in a summary court-martial, by the officer who orders an
administering a one-time oath to military counsel: investigation under article 32, UCMJ, or by the officer
who directs the taking of a deposition. As directed by
I, ________________________________, do the trial counsel of a general or special court-martial or
swear (or affirm) that I will faithfully perform the by the summary court, the reporter shall prepare either
duties of counsel in any court-martial to which I a verbatim or a summarized record and shall preserve
am detailed as counsel or in which I participate as the complete shorthand notes or mechanical or voice
individual military counsel. [So help me God.] record of the proceedings as provided in section
0150b. Additional clerical assistants may be detailed
c. Members when necessary. See R.C.M. 501(c), MCM.
(1) Detailing. See R.C.M. 503(a), MCM. (b) Interpreters. In each case before a court-
martial or military commission, in each investigation
(2) Oaths. Court members may be given one conducted under Article 32, UCMJ, and in each
oath for all cases which are referred to the instance of the taking of a deposition, the convening
authority or the officer directing such proceeding shall
court in accordance with the convening order which appoint, when necessary, an interpreter for the court,
detailed them as members. In the event the convening commission, investigation, or officer taking the
order is amended, a new member may be sworn when deposition.
he or she arrives. This oath may be administered by
any officer authorized by article 136, UCMJ, and (c) Manner of appointment. Appointment of
section 0902 of this manual to administer oaths. When reporters and interpreters by the convening authority or
court members are not sworn at trial, the fact that they authority directing the proceedings may be effected
have previously been sworn will be recorded in the personally by him, or, at his discretion, by any other
transcript or record of trial. The oaths used for court person. Such appointment may be oral or in writing.
members will be those prescribed in R.C.M. 807(b)(2)
Dissussion, MCM. (3) Oaths

d. Reporters, interpreters, escorts, bailiffs, clerks, and (a) Reporters. Any court reporter, military or
guards civilian, may be given a one-time oath. The oath nor-
mally will be administered by trial counsel in the first
(1) Qualifications of court reporters. Civilian and court-martial to which the court reporter is assigned.
military court reporters shall be proficient in recording Once such oath is taken, the court reporter need not be
in shorthand or by mechanical, voice, or other means resworn at any trial or other proceeding to which
the proceedings of, and the testimony taken before, the assigned. The following oath may be used in
court or commission, and shall be able to transcribe administering a one-time oath to court reporters:
accurately the testimony taken.
I, ___________________________________ do
(2) Appointment of reporters and interpreters swear (or affirm) that I will faithfully perform the
duties of reporter in any court-martial to which I
(a) Reporters. In each case before a general am assigned as reporter. [So help me God.]
court-martial or before a military commission, a court
reporter or reporters shall be detailed. In a special (b) Interpreters. Interpreters will be sworn by
court-martial, a court reporter or reporters may be the trial counsel as provided in R.C.M. 807(b)(2)
detailed; however, if no reporter is detailed and sworn, Dissussion, MCM.
the special court-martial may not adjudge a bad-
conduct discharge. Detailed reporters shall be (4) Disqualification. Reporters, interpreters,
proficient in recording in shorthand or by mechanical, escorts, bailiffs, clerks, and guards shall be disqualified
voice, or other means the proceedings of, and the as provided in R.C.M. 502(e)(2), MCM.
testimony taken before, the court or commission. A
reporter may be detailed by the convening authority of (5) Duties. The duties of reporters, interpreters,

1-36
escorts, bailiffs, clerks, and guards shall be as paragraph is "reasonably available." Pursuant to the
prescribed in R.C.M. 502(e)(3), MCM, NAV- provisions of article 38(b)(3) and (7), UCMJ, and in
MARTRIJUDICINST 5810.5, and by the military accordance with R.C.M. 506, MCM, the term
judge or trial counsel. A bailiff should be present at "reasonably available" is hereafter defined, and the
every trial by court-martial unless his presence is procedures for determining whether a military counsel
excused by the military judge. requested by an accused is "reasonably available" are
established. Counsel serving in the Army, Air Force,
(6) Source and expenses of court reporters and or Coast Guard, are "reasonably available" to represent
interpreters. Whenever possible, reporters, a Navy or Marine Corps accused if not otherwise
interpreters, and clerical assistants shall be detailed unavailable within the meaning of R.C.M. 506, MCM,
from either naval or civilian personnel serving under or under regulations of the Secretary concerned for the
the convening authority or officer directing the Department in which such counsel are members.
proceeding, or placed at his disposal by another officer Since an accused has the right to civilian counsel in
or by other Federal agencies. When necessary, the addition to detailed counsel or individual military
convening authority or officer directing the proceeding counsel, retention of, or representation by, civilian
may employ or authorize the employment of a reporter counsel does not extinguish the right to representation
or interpreter, at the prevailing wage scale, for duty by individual military counsel. It is the policy of the
with a general or special court-martial, a military Secretary of the Navy that the right to individual
commission, an investigation under article 32, UCMJ, military counsel shall be administered so as not to
or at the taking of a deposition. No expense to the interfere with orderly and efficient trials by court-
Government shall be incurred by the employment of a martial.
reporter, interpreter, or other person to assist in a court-
martial, military commission, article 32 investigation, b. Definitions
or the taking of a deposition, except when authorized
by the convening authority or officer directing the (1) "Proceeding." As used in this section,
proceeding. When required reporters or interpreters "proceeding" means a trial-level proceeding by general
are not available locally, the convening authority or or special court-martial or an investigation under
officer directing the proceeding shall communicate article 32, UCMJ.
with the Chief of Naval Personnel or Commandant of
the Marine Corps, as appropriate, requesting that such (2) "Commander." For counsel assigned to a Naval
assistance be provided or authorized. Legal Service Office, Detachment, or Branch Office,
the commander of the requested counsel is defined as
e. Oaths of court-martial personnel. Where no form the commanding officer of the cognizant Naval Legal
of oath is specified in this section, the oaths set out in Service Office; for counsel assigned to the Naval Civil
R.C.M. 807(b)(2) Discussion, MCM, may be used. Law Support Activity, the Commanding Officer,
Naval Civil Law Support Activity; for counsel
0131 STANDARDS FOR DETERMINING assigned to the Navy-Marine Corps Appellate Review
AVAILABILITY OF REQUESTED Activity, the Officer in Charge, Navy-Marine Corps
INDIVIDUAL MILITARY COUNSEL Appellate Review Activity; for all other counsel
assigned to the Office of the Judge Advocate General,
a. General. Article 38(b)(3)(B), UCMJ, provides that the Assistant Judge Advocate General for Military
an accused has the right to be represented before a Justice (Code 02). For all other counsel, the
general or special court-martial or at an investigation commander is defined as the commanding officer or
under article 32, UCMJ, by military counsel of his own head of the organization, activity, or agency with
selection if that counsel is reasonably available. which requested military counsel will be serving at the
Article 38(b)(7), UCMJ, provides that the Secretary time of the proceeding. The commander is not
concerned shall, by regulation, define "reasonably disqualified from acting as the commander under this
available" for purposes of paragraph (3)(B) and rule solely because the commander is also the
establish procedures for determining whether the convening authority.
military counsel requested by an accused under that

1-37
 (3) "Attorney-client relationship." For purposes of accordance with article 27(b), UCMJ, and not
this section, an attorney-client relationship exists excluded by subsections b(4)(a) through (e), below,
between the accused and requested counsel when may be determined to be "reasonably available" by the
counsel and the accused have had a privileged commander of requested counsel. In making this
conversation relating to a charge pending before the determination, the commander will assess the impact
proceeding, and counsel has engaged in active pretrial upon the command should the requested counsel be
preparation and strategy with regard to that charge. A made available. In so doing, the commander may
counsel will be deemed to have engaged in active consider, among others, the following factors: the
pretrial preparation and strategy if that counsel has anticipated duties and workload of requested counsel,
taken action on the case which materially limits the including authorized leave; the estimated duration of
range of options available to the accused at the requested counsel's absence from the command,
proceeding. including time for travel, preparation, and participation
(a) Actions by counsel deemed to constitute in the proceeding; any unique or special qualifications
active pretrial preparation and strategy which relevant to the proceeding possessed by requested
materially limit the range of options available to the counsel; the ability of other counsel to assume the
accused include, but are not limited to: advising the duties of requested counsel; the nature and complexity
accused to waive or assert a legal right, other than of the charges or the legal issues involved in the
simply asserting the right to remain silent, where the proceeding; the experience level and any special or
accused has followed such advice by waiving or unique qualifications of the detailed defense counsel;
asserting that right; representing the accused at a and the information or comments of the accused and
pretrial investigation under article 32, UCMJ, dealing the convening authority. Counsel described in
with the same subject matter as any charge pending subsections b((4)(a) through (e), below, are not
before the proceeding; submitting evidence for testing "reasonably available:"
or analysis; advising the accused to submit to a
polygraph examination where the accused has (a) Counsel who are flag or general officers;
followed such advice by so submitting; offering a
pretrial agreement on behalf of the accused; submitting (b) Counsel who are performing duties as trial
a request for an administrative discharge in lieu of trial counsel; trial or appellate military judge; appellate
on behalf of the accused; or interviewing witnesses defense or government counsel; court commissioner;
relative to any charge pending before the proceeding. principal legal advisor to a command, organization or
agency having general court-martial convening
(b) Actions that, in and of themselves, will not authority, or the principal assistant to such legal
be deemed to constitute "active pretrial preparation and advisor; instructor or student at a college, university,
strategy" include, but are not limited to: discussing the service school, or academy; or assigned as a
legal and factual issues in the case with the accused; commanding officer, executive officer or officer in
discussing the legal and factual issues in the case with charge;
another person under the protection of the attorney-
client privilege, such as another defense counsel; (c) Counsel who are assigned to any of the
performing legal research dealing with the subject following commands, activities, organizations, or
matter of the case; representing the accused in the agencies; Executive Office of the President; Office of
review of pretrial confinement under R.C.M. 305, the Secretary of Defense; Office of the Secretary of the
MCM; representing the accused in appellate review Navy; Office of the Joint Chiefs of Staff; Office of the
proceedings under article 70, UCMJ; or providing Chief of Naval Operations; Headquarters, U.S. Marine
counseling to the accused concerning article 15, Corps; National Security Agency; Defense Intelligence
UCMJ. These actions should be appraised under a Agency; Office of the Judge Advocate General; Navy-
totality of the circumstances test to determine if they Marine Corps Appellate Review Activity; Naval Civil
constitute "active pretrial preparation and strategy." Law Support Activity; Office of Legislative Affairs;
Office of the Defense Department or Navy Department
(4) "Reasonably available." All counsel serving on Inspectors General; or any agency or department
active duty in the Navy or Marine Corps, certified in outside the Department of Defense; and

1-38
 one or more charges pending before the proceeding,
(d) Naval Legal Service Command counsel and the factual basis underlying that assertion. The
neither permanently assigned to the Naval Legal request shall also state any special qualifications of
Service Office responsible for providing defense requested counsel that are relevant to the case.
counsel services to the accused nor permanently
assigned within 100 miles of the situs of the (2) Action by the convening authority.
proceeding (determined in accordance with the official
Table of Distances). The foregoing geographical (a) If requested counsel is not on active duty in
limitations shall not apply in cases in which an article the armed forces, the convening authority shall
32, UCMJ, pretrial investigation is ordered for a promptly deny the request and so inform the accused,
preferred charge of a capital offense for which the in writing, citing this provision.
sentence of death may be adjudged in accordance with
R.C.M. 1004, MCM, or for a national security case (b) If the requested counsel is on active duty in
designated in accordance with section 0126. the Armed Forces and the request does not claim an
attorney-client relationship regarding any charge
(e) Marine Corps counsel who are permanently pending before the proceeding and the requested
assigned to a U.S. Marine Corps command outside the counsel is not "reasonably available" as defined in
Navy-Marine Corps Trial Judiciary Circuit where the subsection b(4)(a) through (d), above, the convening
proceeding is to be held unless the requested counsel is authority shall promptly deny the request and so
permanently assigned within 100 miles of the situs of inform the accused, in writing, citing this provision.
the proceeding (determined in accordance with the
official Table of Distances). The foregoing (c) In all other cases, the convening authority
geographical limitations shall not apply in cases in shall forward the request to the commander of the
which an article 32, UCMJ, pretrial investigation is requested counsel (i.e., the commander responsible for
ordered for a preferred charge of a capital offense for the counsel's daily supervision), providing the
which the sentence of death may be adjudged in following in the forwarding endorsement: the nature of
accordance with R.C.M. 1004, MCM, or for a national the charges; the convening authority's estimate of the
security case designated in accordance with section duration of requested counsel's involvement in the
0126. proceeding, including time for travel, preparation and
participation in the proceeding; and any other
(f) Notwithstanding the limitations regarding information or comments deemed appropriate.
officers in charge set forth in subsection b(4)(b) above,
the commanding officer of a Naval Legal Service d. Action by the commander of requested counsel
Office shall have the discretion to make counsel
serving as an officer in charge available under (1) Determining whether an attorney-client
exceptional circumstances including, but not limited to, relationship exists. Applying the criteria enumerated
the complexity of a particular case or lack of in subsection b(3), above, the commander shall
experienced counsel otherwise available. determine whether requested counsel has an attorney-
client relationship with the accused regarding any
c. Submission and forwarding of requests charge pending before the proceeding.

(1) Submission. A request for individual military (2) When there is an attorney-client relationship. If
counsel shall be made in writing by the accused, or by the commander determines that there is an attorney-
counsel for the accused on the accused's behalf, and client relationship regarding any charge pending before
shall be submitted to the convening authority via the the proceeding, then the requested counsel should
trial counsel. The burden is on the counsel for the ordinarily be made available to act as individual
accused to state in the request the specific location and military counsel without regard to whether he or she
duties of requested counsel, if known, and to state would otherwise be deemed "reasonably available" as
clearly whether the accused claims to have an attorney- defined in subsection b(4), above, unless there is "good
client relationship with requested counsel regarding cause" to sever that relationship, and provided that

1-39
requested counsel is certified in accordance with article f. Approval of associate defense counsel. If
27(b), UCMJ. "Good cause" to sever an attorney- individual military counsel has been made available to
client relationship includes, but is not limited to, defend an accused at a proceeding, the detailed defense
requested counsel's release from active duty or counsel normally shall be excused from further
terminal leave. If requested counsel is not certified in participation in the case unless the authority who
accordance with article 27(b), UCMJ, the commander detailed the defense counsel, in his or her sole
shall promptly deny the request and so inform the discretion, approves a request from the accused that
accused, in writing, citing this provision. If there is detailed defense counsel act as associate defense
"good cause" to sever an attorney-client relationship, counsel. The seriousness of the charges, the retention
the commander shall apply the criteria and procedures of civilian defense counsel, the complexity of legal or
in subsection d(3), below. factual issues, and the detailing of additional trial
counsel are among the factors that may be considered
(3) When there is no attorney-client relationship. If in the exercise of this discretion. This decision is not
the commander determines that there is no attorney- subject to administrative review.
client relationship regarding any charge pending before 0132 [Reserved]
the proceeding, the following procedures apply:
0133 ADDITIONAL MATTERS IN
(a) If the commander determines that requested CONVENING ORDERS
counsel is not "reasonably available" as defined in
subsection b(4), above, the commander shall promptly Each convening order shall be assigned a court-martial
deny the request and so inform the accused, in writing, convening order number. The order shall be
citing this provision. personally subscribed by the convening authority and
shall show his name, grade, and title, including
(b) If the commander determines that requested organization or unit. A copy of the convening order
counsel is "reasonably available," the requested shall be furnished to each person named in such order.
counsel shall be made available to represent the
accused at the proceeding, and the commander shall 0134 ADDITIONAL MATTERS IN THE
promptly inform the convening authority and the CASE OF CERTAIN RESERVE
accused of this determination. COMPONENT PERSONNEL

e. Administrative review. The decision whether a. Holdover of reserve component personnel on

requested counsel will be made available to act as active duty. Reserve component personnel on active
individual military counsel is an administrative duty may be extended involuntarily beyond their
determination within the sole discretion of the normal release date from active duty as a result of
commander, except as specifically provided below. If apprehension, arrest, confinement, investigation, or
the commander declines to make requested counsel filing of charges that may result in trial by court-
available, the accused may appeal that decision via the martial and execution of any sentence of a court-
commander to the commander's immediate superior in martial. See R.C.M. 202(c).
command, but appeals may not be made which require
action at the departmental or higher level. The basis b. Holdover of reserve component personnel on
for appeal will normally be abuse of discretion, but if inactive duty training
the accused claims that the commander making the
determination did not have authority to do so, or did so (1) Reserve component personnel on inactive duty
on the basis of inaccurate or incomplete information, training may be retained in that status by an officer em-
the reviewing authority shall consider those allegations powered to convene courts-martial for not more than 2
and, if warranted, direct corrective action. The appeal full working days past the end of inactive duty training
shall be promptly reviewed, and the commander of if:
requested counsel, the convening authority and the
accused shall be promptly informed of the decision. (a) There is probable cause to believe the
accused committed an offense for which the maximum

1-40
punishment authorized is confinement for more than (2) Fine. Fines in the case of reserve component
10 years or death; personnel permanently assigned to an inactive duty
training unit shall be based on the total amount subject
(b) Approval, either oral or written, for holdover to forfeiture at the time adjudged.
is obtained prior to expiration of inactive duty training
from the officer empowered to convene a general d. Sentence involving restraint on liberty
court-martial in the chain of command of the accused,
as designated in section 0120a and superior in grade to (1) Personnel on inactive duty training. If the
the requesting officer; and sentence pertains to reserve component personnel on
inactive duty training, restraint on liberty shall not
(c) Immediate action is taken to order the extend beyond the normal inactive duty training period
member to active duty for trial by court-martial. but may be carried over to subsequent periods of
inactive duty training or active duty. A reserve
component member on inactive duty may not be
(2) An accused held over under this subsection ordered to active duty for the sole purpose of serving
may be placed in pretrial confinement as circumstances such punishment unless the order to active duty
warrant. See R.C.M. 304 and 305. The order to active receives Secretarial approval. See section 0123e.
duty in such a case, however, must be approved by the
Secretary, Under Secretary, or Assistant Secretary of (2) Personnel on active duty. If the sentence
the Navy, no later than 2 full working days past the pertains to reserve component personnel who have
end of inactive duty training. The request for an order been ordered to active duty for disciplinary
to active duty under this subsection shall state the proceedings, the period of active duty may not be
reasons why pretrial confinement is deemed necessary. extended for the purpose of serving such punishment,
See section 0123e. nor may a sentence to confinement be adjudged, unless
the order to active duty received Secretarial approval.
(3) If necessary, the request to order an accused to See section 0123e
active duty may be made directly by message or
telephone.

c. Sentences to forfeiture or fine

(1) Forfeiture. Pay subject to forfeiture refers to

the basic pay of the person plus any sea or foreign duty
pay. If punishment includes reduction in grade,
forfeiture shall be based on the grade to which the
accused is reduced. For inactive duty reserve
component personnel ordered to active duty for
punishment and released from active duty prior to
collection of the total amounts to be forfeited, see
DODPM, Pt. 7, ch. 5 and 6.

SUBPART C2 - TRIAL MATTERS

0135 ARTICLE 39(a), UCMJ, SESSIONS be called. The military judge of a general or special
court-martial may, at an article 39(a) session, arraign
Article 39(a), UCMJ, sessions will be called by order the accused, hear arguments and rule upon motions,
of the military judge. Either counsel, however, may and receive the pleas of the accused. If the accused
make a request to the military judge that such a session pleads guilty, the military judge may at that time make

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the appropriate inquiry into the providence of the
accused's plea. The military judge may also at that c. Limitations in national security cases. No official
time accept the plea of the accused. Upon acceptance of the DON is authorized to enter into a pretrial agree-
of a plea of guilty, the military judge is authorized to ment in any national security case, as defined in
enter a finding of guilty immediately except when the section 0126, without first obtaining permission to do
plea is to a lesser included offense and the prosecution so from the Secretary of the Navy. If an offer to plead
intends to proceed to trial on a greater offense. guilty is received from the accused or the accused's
counsel, the convening authority may enter into
pretrial agreement discussions. If discussions result in
0136 DELEGATION OF AUTHORITY TO terms which are mutually agreeable to the convening
EXCUSE MEMBERS authority and the accused, the convening authority
shall request, by priority message (with information
A general court-martial or special court-martial copies to the Chief of Naval Operations or
convening authority may delegate authority to excuse Commandant of the Marine Corps, as appropriate, and
members under R.C.M. 505(c)(1), MCM, to the staff the Judge Advocate General), permission from the
judge advocate or to a principal assistant. Before the Secretary of the Navy to enter into a written pretrial
court-martial is assembled, the convening authority's agreement embodying those terms. The message
delegate may excuse members without cause shown; request shall include the following:
however, no more than one-third of the total number of
members detailed by the convening authority may be (1) The exact text of the proposed pretrial agree-
excused by the convening authority's delegate in any ment;
one court-martial. After assembly, the convening
authority's delegate may not excuse members. (2) A statement of the factual background of the
offense(s);
0137 PRETRIAL AGREEMENTS
(3) Information pertaining to the identity of the
a. General. The procedures and limitations set forth accused;
in R.C.M. 705, MCM, shall be followed for the
negotiation and entry into a pretrial agreement between (4) A summary of the evidence which would be
an accused and the convening authority. Appendix available for introduction at trial before findings or
A-1-h, a suggested form for such agreements, must be during any sentencing portion of trial by the
modified as appropriate to include all of the Government or the accused; and
agreements made between the accused and the
convening authority. No matters "understood" (5) A summary of the factors which warrant entry
between the parties should be omitted from the written into a pretrial agreement.
agreement.
d. Advanced education obligation. A service-
b. Major Federal offenses. The authority of court- member having obligated service arising from
martial convening authorities to refer cases to trial and receiving advanced education assistance must be
to approve pretrial agreements extends only to trials by advised prior to entering a guilty plea at Courts-Martial
courts-martial. In order to ensure that such actions do (in accordance with a pretrial agreement or otherwise)
not preclude appropriate action by Federal civilian that, if separated for misconduct, he may be required to
authorities in cases likely to be prosecuted in the U.S. reimburse the United States for the cost of advanced
District Courts, court-martial convening authorities education assistance not repaid by active duty service
shall ensure that appropriate consultation under the as specified in the written agreement entered into with
Memorandum of Understanding between the the Government prior to accepting advanced education
Departments of Defense and Justice has taken place assistance. See section 0171 and Appendix A-1-r(1).
prior to trial by court-martial or approval of a pretrial
agreement in cases where such consultation is 0138 AUTHORITY TO GRANT
required. See Appendix 3, MCM. IMMUNITY FROM PROSECUTION

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 witness is expected to testify in response to a promise
a. General. See R.C.M. 704, MCM. In certain cases of leniency, the terms of the promise of leniency must
involving more than one participant, the interests of be reduced to writing and served upon the accused or
justice may make it advisable to grant immunity, either his defense counsel in the same manner as a grant of
transactional or testimonial, to one or more of the immunity.
participants in the offense in consideration for their
testifying for the Government or the defense in the c. Civilian witnesses. Pursuant to 18 U.S.C. sections
investigation and/or the trial of the principal offender. 6002 and 6004, if the testimony or other information of
Transactional immunity, as that term is used in this a civilian witness at a court-martial may be necessary
section, shall mean immunity from prosecution for any in the public interest, and if the civilian witness has
offense or offenses to which the compelled testimony refused or is likely to refuse to testify or provide other
relates. Testimonial immunity, as that term is used in information on the basis of a privilege against self-
this section, shall mean immunity from the use, in aid incrimination, then the approval of the Attorney
of future prosecution, of testimony or other General of the United States, or his designee, must be
information compelled under an order to testify (or any obtained prior to the execution or issuance of an order
information directly or indirectly derived from such to testify to such civilian witness. The cognizant
testimony or other information). The authority to grant officer exercising general court-martial jurisdiction
either transactional or testimonial immunity to a may obtain the approval of the Attorney General in
witness is reserved to officers exercising general court- such a circumstance by directing a message or letter
martial jurisdiction. This authority may be exercised in requesting the assistance of the Judge Advocate
any case, whether or not formal charges have been General (Code 20, via Code 17 in national security
preferred, and whether or not the matter has been cases) in the form prescribed in section 0139.
referred for trial. The approval of the Attorney
General of the United States on certain orders to testify d. Cases involving national security. In all cases
may be required, as outlined below. involving national security or foreign relations of the
United States, the cognizant officer exercising general
b. Procedure. The written recommendation that a court-martial jurisdiction shall forward, in the form
certain witness be granted either transactional or prescribed in subsection section 0139, any proposed
testimonial immunity in consideration for testimony grant of immunity to the Judge Advocate General for
deemed essential to the Government or to the defense the purpose of consultation with the Department of
shall be forwarded to an officer competent to convene Justice. Such cases include, but are not limited to,
a general court-martial for the witness for whom those enumerated in section 0126. See section 0125
immunity is requested, i.e., any officer exercising regarding investigations, limitations on dispositional
general court-martial jurisdiction. Such authority, and relations between the Departments of
recommendation will be forwarded by the trial counsel Defense and Justice. See section 0137 regarding
or defense counsel in cases referred for trial, the pretrial agreements. See section 0159 regarding
pretrial investigating officer conducting an investiga- remission and suspension of sentences in national
tion upon preferred charges, the counsel or recorder of security cases.
any other fact-finding body, or the investigator when
no charges have yet been preferred. The e. Review. Under some circumstances, the officer
recommendation shall state in detail why the testimony granting immunity to a witness may be disqualified
of the witness is deemed so essential or material that from taking reviewing action on the record of the trial
the interests of justice cannot be served without the before which the witness granted immunity testified.
grant of immunity. The officer exercising general See U.S. v. Newman, 14 M.J. 474 (CMA 1983). A
court-martial jurisdiction shall act upon such request successor in command not participating in the grant of
after referring it to his staff judge advocate for con- immunity would not be so disqualified under those
sideration and advice. If approved, a copy of the circumstances.
written grant of immunity must be served upon the
accused or his defense counsel within a reasonable f. Form of grant. In any case in which a military
time before the witness testifies. Additionally, if any witness is granted transactional immunity, the general

1-43
court-martial convening authority should execute a under what conditions, and for what length of time.
written grant substantially in the form set forth in
Appendix A-1-i(1). In any case in which a military (8) A brief resume of the background of the inves-
witness is granted testimonial immunity, the general tigation or proceeding before the agency or
court-martial convening authority should execute a department.
written grant substantially in the form set forth in
Appendix A-1-i(2). (9) A concise statement of the reasons for the
request, including:
0139 CONTENT OF IMMUNITY REQUESTS
WHEN APPROVAL OF THE (a) what testimony the witness is expected to
ATTORNEY GENERAL IS REQUIRED give;

a. Approval. In all cases in which approval of the (b) how this testimony will serve the public
Attorney General of the United States is required prior interest;
to the issuance of a grant of immunity, whether under
section 0138c or 0138d, the cognizant officer (c) whether the witness:
exercising general Courts-Martial jurisdiction shall
forward by message or letter the proposed order to 1 Has invoked the privilege against self-
testify and grant of immunity to the Judge Advocate incrimination; or
General (Code 20, via Code 17 in national security
cases). 2 Is likely to invoke the privilege;

b. Order to testify. The order to testify should be (d) If (9)(c)2 is applicable, then why it is
substantially in the form set forth in Appendix anticipated that the prospective witness will invoke the
A-1-i(3). Requests for assistance shall be in writing, privilege.
should allow at least 3 weeks for consideration, and
must contain the following information: (10) An estimate as to whether the witness is likely
to testify in the event immunity is granted.
(1) Name, citation, or other identifying information
of the proceeding in which the order is to be used. (11) A statement reflecting whether or not the local
district or state attorney and the U.S. Attorney have
any intention of prosecuting the witness. The names
(2) Name and social security number, where and telephone numbers of those attorneys should also
possible, of the witness for whom the immunity is be provided.
requested (see Appendix A-1-i-(4)).
0140 POST-TESTIMONY PROCEDURE
(3) Name of the employer or company with which WHEN AUTHORITY TO GRANT
a witness is associated or the military unit or IMMUNITY WAS OBTAINED FROM
organization to which a witness is assigned. THE ATTORNEY GENERAL

(4) Date and place of birth, if known, of the wit- a. Information. After a witness immunized in
ness. accordance with section 0138c or 0138d has testified,
(5) FBI or local police file number, if any, and if the following information shall be provided to the
known. United States Department of Justice, Criminal Divisio-
n, Immunity Unit, Washington, DC 20530, via the
(6) Whether any state or Federal charges are Judge Advocate General (Code 20):
pending against the witness and the nature of any such
charges. (1) Name, citation, or other identifying
information, of the proceeding in which the order was
(7) Whether the witness is currently incarcerated, requested.

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 records of the accused should be excluded.
(2) Date of the examination of the witness.
0142 RELEASE OF INFORMATION PER-
(3) Name and residence address of the witness. TAINING TO ACCUSED PERSONS

(4) Whether the witness invoked the privilege. a. General. There are valid reasons for making
information available to the public concerning the
(5) Whether the immunity order was used. administration of military justice. The task of striking
a fair balance among the protection of individuals
(6) Whether the witness testified pursuant to the accused of offenses, improper or unwarranted publicity
order. pertaining to their cases, public understanding of the
problems of controlling misconduct in the military
(7) If the witness refused to comply with the order, service, and the workings of military justice, requires
whether contempt proceedings were instituted, or are the exercise of sound judgment by those responsible
contemplated, and the result of the contempt for administering military justice and by representa-
proceeding, if concluded. tives of the press and other news media. At the heart
of all guidelines pertaining to the furnishing of
b. Verbatim transcript. A verbatim transcript of the information concerning an accused or the allegations
witness' testimony, authenticated by the military judge, against him is the mandate that no statements or other
should be provided to the Judge Advocate General at information shall be furnished to news media for the
the conclusion of the trial. No testimony or other purpose of prejudicing the outcome of an accused's
information given by a civilian witness pursuant to trial, or which could reasonably be expected to have
such an order to testify (or any information directly or such an effect.
indirectly derived from such testimony or other
information) may be used against him in any criminal b. Applicability of regulations
case, except a prosecution for perjury, giving a false
statement, or otherwise failing to comply with the (1) Except as provided in subsection (2) below,
order. these regulations apply to all persons who may obtain
information as the result of duties performed in
connection with the processing of accused persons, the
investigation of suspected offenses, the imposition of
nonjudicial punishment, or the trial of persons by
court-martial. These regulations are applicable from
the time of apprehension, the preferral of charges, or
0141 PERSONAL DATA AND CHARAC- the commencement of an investigation directed to
TER OF PRIOR SERVICE OF THE make recommendations concerning disciplinary action,
ACCUSED until the imposition of nonjudicial punishment,
completion of trial (court-martial sessions), or disposi-
If otherwise admissible, trial counsel are authorized to tion of the case without trial. These regulations also
present, and summary court-martial officers are prescribe guidelines for the release or dissemination of
authorized to obtain and introduce into evidence, information to public news agencies, to other public
matters set out in R.C.M. 1001(b)(2), MCM. Records news media, or to other persons or agencies for
of nonjudicial punishment must relate to offenses unofficial purposes.
committed prior to trial and during the current
enlistment or period of service of the accused, (2) Judge advocates assigned by competent
provided such records shall not extend to offenses authority to represent an individual client other than
committed more than 2 years prior to the commission the Government shall comply with the applicable
of any offense of which the accused stands convicted. provisions of JAGINST 5803.1 series, (Rules of
In computing the 2-year period, periods of Professional Responsibility for Attorneys Practicing
unauthorized absence as shown by the personnel Under the Supervision of the Judge Advocate General)

1-45
when making any statements concerning the subject (5) The fact, time, and place of the apprehension of
matter of that representation. See, e.g., Rules 1.6 the accused.
(Confidentiality of Information), 3.6 (Extra-Tribunal
Statements), and 4.1 (Truthfulness in Statements to (6) The type and place of custody, if any.
Others).
(7) Information which has become a part of the
c. Release of information record of proceedings of the court-martial in open ses-
sion.
(1) As a general matter, release of information
pertaining to accused persons should not be initiated (8) The scheduling or result of any stage in the
by persons in the naval service. Information of this judicial process.
nature should be released only upon specific request
and, subject to the following guidelines, should not (9) The denial by the accused of any offense or
exceed the scope of the inquiry concerned. offenses of which he may be accused or suspected
(when release of such information is approved by the
(2) Except in unusual circumstances, information counsel of the accused).
subject to release under this regulation should be re-
leased by the cognizant public affairs officer; requests e. Prohibited information. The following informa-
for information received from representatives of news tion concerning a person accused or suspected of an
media should be referred to the public affairs officer offense or offenses generally may not be released,
for action. When an individual is suspected or accused except as provided in subsection f:
of an offense, care should be taken to indicate that the
individual is alleged to have committed or is suspected (1) Subjective opinions, observations, or comments
or accused of having committed an offense, as distin- concerning the accused's character, demeanor,
guished from stating or implying that the accused has credibility, or expected testimony at any time (except
committed the offense or offenses. as authorized in subsection d(5)), or guilt of the
offense or offenses involved.
d. Information subject to release. On inquiry, the
following information concerning a person accused or (2) The prior criminal record (including other
suspected of an offense or offenses may generally be apprehensions, charges, or trials) or the character or
released, without elaboration, except as provided in reputation of the accused.
subsection f:
(3) The existence or contents of any confession,
(1) The accused's name, grade, age, unit, regularly admission, statement, or alibi given by the accused, or
assigned duties, duty station, and sex. the refusal or failure of the accused to make any
(2) The general nature of the offense(s) of which statement.
the individual is accused or suspected. The fact that an
accused has been charged with an offense may be (4) The performance of any examination or test,
released, but a statement explaining that the charge is such as polygraph examinations, chemical tests,
merely an accusation and that the accused is presumed ballistics tests, etc., or the refusal or failure of the
innocent until proven guilty must also be included. accused to submit to an examination or test.

(3) The identity of the victim of any alleged or (5) The identity or nature of physical evidence
suspected offense, except the victim of a sexual expected to be presented, or the identity, testimony, or
offense. credibility of possible witnesses, except as authorized
in subsection d(3). Particularly objectionable are
(4) The identity of the apprehending and inves- statements or comments concerning information or
tigating agency, and the identity of the accused's evidence which is known, or which reasonably should
counsel, if any. be known, to be inadmissible before the tribunal.

1-46
 (6) The possibility of a plea of guilty to any offense Courts-Martial and are of such a nature as to interfere
charged or to a lesser offense and any negotiation or with a fair trial by an impartial tribunal, or consistent
any offer to negotiate respecting a plea of guilty. with appellate case law, for a reason deemed
appropriate by the commander ordering the
(7) References to confidential sources or inves- investigation or the investigating officer. The reasons
tigative techniques or procedures. for closing an article 32, UCMJ, investigation, and
any objections thereto, shall be memorialized and
(8) Statements or opinions regarding the included as an attachment to the report of
credibility, reputation, motives, or character of investigation. Ordinarily, the proceedings of a
Department of Defense military or civilian officials. pretrial investigation should be open to spectators. In
cases dealing with classified information, the
(9) Any other matter when there is a reasonable investigating officer will ensure that any part of a
likelihood that the dissemination of such matter will pretrial investigation (e.g., rights advisement) that
affect the deliberations of an investigative body or the does not involve classified information will remain
findings or sentence of a court-martial, or otherwise open to spectators.
prejudice the due administration of military justice
either before, during, or after trial. 0144 SECURITY OF CLASSIFIED MAT-
TER IN JUDICIAL PROCEEDINGS
f. Exceptional cases. The provisions of this section
are not intended to restrict the release of information a. General. Every precaution shall be taken by
designed to enlist public assistance in apprehending an convening authorities, military judges, presidents of
accused or suspect who is a fugitive from justice or to special courts-martial, summary courts, and trial
warn the public of any danger that a fugitive accused counsel to protect the security of classified matter
or suspect may present. Further, since the purpose of involved in judicial proceedings. If a trial of a case
this section is to prescribe generally applicable involves classified information, the convening
guidelines, there may be exceptional circumstances authority, military judge, president of a special Courts-
which warrant Martial, summary court, and trial counsel, as
the release of information prohibited under subsection appropriate, are charged with the responsibility of
e, or the nonrelease of information permitted under ensuring compliance with applicable provisions of
subsection d. Attention should be given to the DON Information Security Program Regulation
SECNAV instructions implementing the Freedom of SECNAVINST 5510.36 (series), R.C.M. 401(d) and
Information Act (5720.42E) and the Privacy Act 407(b), and Mil. R. Evid. 505, MCM.
(5211.5C). Consultation with the command judge
advocate, if one is assigned, or with the cognizant trial b. Security clearance of personnel. If classified
services office concerning interpretation and matter is to be used for prosecution, appropriate
application of these instructions is encouraged. personnel security clearances in accordance with
0143 SPECTATORS AT PROCEEDINGS SECNAVINST 5510.36 (series) must be granted to all
members of the court, members of the prosecution and
a. At sessions of courts-martial. See R.C.M. 806, defense, court reporters, and interpreters, and all other
MCM. persons whose presence is required when classified
matter is introduced before the court. If the accused is
b. Consistent with R.C.M. 405(h)(3), MCM, the represented by civilian defense counsel, such counsel
Convening Authority or investigating officer may must likewise be cleared before classified matter may
direct that all or part of an article 32, UCMJ, be disclosed to him. The necessity for clearing the
investigation be held in closed session and that all accused and the practicability of obtaining such
persons not connected with the hearing be excluded clearance rests in the sound discretion of the convening
therefrom. The decision to exclude spectators may be authority and may be one of the considerations in the
based on the need to protect classified information, to determination to try a particular case. If it appears
prevent disclosure of matters that will be during the course of a trial that classified matter will be
inadmissible in evidence at a subsequent trial by disclosed, and if the provisions of this subsection have

1-47
not been complied with, the military judge or president
of a special Courts-Martial or summary court shall (2) Reserve Personnel Navy (RPN) – Inactive Duty
adjourn the court and refer the matter to the convening Training (IDT), Annual Training (AT), Active Duty
authority. for Training (ADT), and ADSW orders primarily
supporting Navy Reserve commands/projects.
c. Procedures concerning spectators. See R.C.M.
806, MCM, which prescribes procedures necessary to c. Services and supplies.
prevent the dissemination of classified information to
other than authorized persons. (1) The following costs of services and supplies
provided by an activity in support of courts-martial
0145 FINANCIAL RESPONSIBILITY FOR will be charged to the operation and maintenance
COSTS INCURRED IN SUPPORT OF allotment of the convening authority:
COURTS-MARTIAL
(a) In-house costs which are direct, out-of-
a. Travel, per diem, fees, and mileage pocket, identifiable, and which total $100.00 or more
in a calendar month; and
(1) The costs of travel and per diem of military
personnel and civilian employees of the Department of (b) Costs which arise under contracts which
the Navy, but excluding those of personnel attached to were entered into in support of courts-martial.
the Navy-Marine Corps Trial Judiciary when acting as
military judges of courts-martial, will be charged to the (2) All other costs of services and supplies will
operation and maintenance allotment which supports be absorbed by the operation and maintenance
temporary additional duty travel for the convening allotment of the activity which provides the services or
authority of the court-martial. Such costs incurred by supplies.
personnel attached to the Navy-Marine Corps Trial
Judiciary when acting as military judges of courts- 0146 FEES OF CIVILIAN WITNESSES
martial will be charged to the operation and
maintenance allotment of the Judge Advocate General. a. Method of payment. The fees and mileage of
civilian witnesses shall be paid by the disbursing
(2) The costs of fees and mileage of civilians other officer of the command of a convening authority or
than employees of the Department of the Navy will be appointing authority, or by the disbursing officer at or
charged to the operating budget which supports the near the place where the tribunal sits or where a
temporary additional duty travel funds of the deposition is taken, when such disbursing officer is
appropriate Navy or Marine Corps convening presented a properly completed public voucher for
authority. See the Navy Comptroller Manual, Volume such fees and mileage signed by the witness and
VII, paragraph 075133. certified by one of the following:

(1) Trial counsel or assistant trial counsel of the

b. Involuntary recall and extension on active duty of court-martial;
members in the Reserve component. Funding for these (2) Summary court officer;
orders should be tasked to the appropriation used on
the original set of orders during which the event (3) Counsel for the court in a court of inquiry;
necessitating recall occurred. Decisions regarding
funding for recall of a servicemember do not confer (4) Recorder or junior member of a board to
any procedural or substantive rights upon the member. redress injuries to property; or
The available funding sources include:
(5) Military or civil officer before whom a
(1) Military Personnel Navy (MPN) – Active Duty deposition is taken.
for Special Work (ADSW) orders primarily supporting
regular Navy commands/projects. b. Public voucher. The public voucher must be

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accompanied by a subpoena or invitational orders (see taken. The certificate of the person named in
the Joint Travel Regulations, Vol. 2, Chap. 6), and by a subsection a before whom the witness gave his
certified copy of the order appointing the court-martial, deposition will be evidence of the fact and period of
court of inquiry, or investigation. If, however, a attendance of the witness and the place from which
deposition is taken before charges are referred for trial, summoned.
the fees and mileage of the witness concerned shall be
paid by the disbursing office at or near the place where f. Payment of accrued fees. The witness may be paid
the deposition is taken upon presentation of a public accrued fees at his request at any time during the
voucher, properly completed as prescribed above, and period of attendance. The disbursing officer will make
accompanied by an order from the officer who such interim payment(s) upon receipt of properly
authorized the taking of the deposition, subscribed by executed certificate(s). Upon his discharge from
him and directing the disbursing officer to pay to the attendance, the witness will be paid, upon the
witness the fees and mileage supported by the public execution of a certificate, a final amount covering
voucher. When the civilian witness testifies outside unpaid fees and travel, including an amount for return
the United States, its Territories and possessions, the travel. Payment for return travel will be made upon
public voucher must be accompanied by a certified the basis of the actual fees and mileage allowed for
copy of the order appointing the court-martial, court of travel to the court, or place designated for taking a
inquiry, or investigation, and by an order from the deposition.
convening authority or appointing authority,
subscribed by him and directing the disbursing officer g. Computation. Travel expenses shall be
to pay to the witness the fees and mileage supported by determined on the basis of the shortest usually traveled
the public voucher. route in accordance with official schedules.
Reasonable allowance will be made for unavoidable
c. Obtaining money for advance tender or payment. detention.
Upon written request by one of the officers listed in
subsection a, the disbursing officer under the command h. Non-transferability of accounts. Accounts of
of the convening or appointing authority, or the civilian witnesses may not be transferred or assigned.
disbursing officer nearest the place where the witness
is found, will, at once, provide any of the persons listed i. Signatures. Signatures of witnesses signed by
in subsection a, or any other officer or person mark must be witnessed by two persons.
designated for the purpose, the required amount of
money to be tendered or paid to the witness for j. Rates for civilian witnesses prescribed by law:
mileage and fees for one day of attendance. The
person so receiving the money for the purpose named (1) Civilian witnesses not in Government
shall furnish the disbursing officer concerned with a employ. A civilian not in Government employ, who is
proper receipt. compelled or required to testify as a witness before a
naval tribunal at a specified place, or to appear at a
place where his deposition is to be taken for use before
a court or fact-finding body, will receive fees, subsis-
tence, and mileage as provided in 28 U.S.C. section
d. Reimbursement. If an officer charged with 1821. Witness and subsistence fees are not prorated.
serving a subpoena pays from his personal funds the Instead, any fractional part of a calendar day expended
necessary fees and mileage to a witness, taking a in attendance or qualifying for subsistence entitles the
receipt therefor, he is entitled to reimbursement upon witness to payment for a full day. Further, nothing in
submitting to the disbursing officer such receipt, this subsection shall be construed as authorizing the
together with a certificate of the appropriate person payment of attendance fees, mileage allowances, or
named in subsection a to the effect that the payment subsistence fees to witnesses for:
was necessary.
(a) Attendance or travel which is not performed
e. Certificate of person before whom deposition is either as a direct result of being compelled to testify

1-49
pursuant to a subpoena or as a direct result of invita- official empowered to authorize his employment (11
tional orders; or Comp. Gen. 504). In the absence of such
authorization, no fees other than ordinary witness fees
(b) Travel which is performed prior to being may be paid for the employment of an individual as an
duly summoned as a witness; or expert witness. After an expert witness has testified
pursuant to such employment, the certificate of one of
(c) Travel returning to their places of residence if the officers listed in subsection a, when presented to
the travel from their places of residence does not the disbursing officer, shall also enclose a certified
qualify for payment under this subsection. copy of the authorization of the convening authority.

(2) Civilian witnesses in Government employ. m. Payment of witness fees to foreign nationals.
When summoned as a witness, a civilian in the employ Officers exercising general court-martial jurisdiction in
of the Government shall be paid as authorized by Joint areas other than a state of the United States shall
Travel Regulations. establish rates of compensation for payment of foreign
nationals who testify as witnesses, including expert
k. Supplemental construction of section. Nothing in witnesses, at courts-martial convened in such areas.
this section shall be construed as permitting or
requiring the payment of fees to those witnesses not re- 0147 WARRANTS OF ATTACHMENT
quested, or whose testimony is determined not to meet
the standards of relevancy and materiality in Warrants of attachment shall not be issued in any case
accordance with R.C.M. 703, MCM. without the prior approval of the Judge Advocate
General acting for the Secretary of the Navy. See
l. Expert witnesses R.C.M. 703(e)(2)(G), MCM.

(1) The convening authority will authorize the 0148 COURT-MARTIAL FORMS
employment of an expert witness and will fix the limit
of compensation to be paid such expert on the basis of a. List. The forms listed below are used in courts-
the normal compensation paid by United States martial by the naval service:
Attorneys for attendance of a witness of such standing
in United States courts in the area involved. SF 1156 Public Voucher for Fees and Mileage
Information concerning such normal compensation of Witnesses (9/73)
may be obtained from the nearest officer exercising SF 1157 Claim for Fees and Mileage of
general court-martial jurisdiction having a judge Witness (9/73)
advocate assigned in other than an additional duty, DD 453 Subpoena for Civilian Witness (84
temporary duty, or temporary additional duty capacity. AUG), S/N 0102-LF-000-4530
Convening authorities at overseas commands will DD 453-1 Travel Order (84 AUG), S/N 0102-
adhere to fees paid such witnesses in the Hawaiian area LF-000-4535
and may obtain information as to the limit of such fees DD 455 Report of Proceedings to Vacate
from the Commander, Naval Base, Pearl Harbor. See Suspension (84 AUG), S/N 0102-LF-
subsection m for fees payable to foreign nationals. 000-4550
DD 457 Investigating Officer's Report (84
(2) The provisions of subsection j are applicable to AUG), S/N 0102-LF-000-4570
expert witnesses. However, the expert witness fee DD 458 Charge Sheet (84 AUG), S/N 0102-
prescribed by the convening authority will be paid in LF-000-4580
lieu of ordinary attendance fees on those days the DD 490 Verbatim Record of Trial (1 Mar 70),
witness is required to attend the court. S/N 0102-LF-005-1201

(3) An expert witness employed in strict

accordance with R.C.M. 703(d), MCM, may be paid
compensation at the rate prescribed in advance by the

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DD 491 Summarized Record of Trial (1 Apr
70), S/N 0102-LF-005-1601
DD 494 Courts-Martial Data Sheet (Optional)(1
Jun 70), S/N 0102-LF-005-1901
DD 2329 Record of Trial by Summary Court-
martial (84 AUG), S/N 0102-LF-002-
3290
DD 2330 Waiver/Withdrawal of Appellate
Rights-Review by Court-of Military
Review (84 AUG), S/N 0102-LF-002-
3300
DD 2331 Waiver/Withdrawal of Appellate
Rights-Review by Judge Advocate
General (84 AUG), S/N 0102-LF-
002-3310
DD 2702 Courts-Martial Information for Victims
and Witnesses of Crime
DD 2703 Post-Trial Information for Victims and
Witnesses of Crime
DD 2704 Victim/Witness Certification and
Election Concerning Inmate Status

b. How to obtain forms. The DD forms are available

from the Forms and Publications Segment of the Navy
Supply System as cognizance symbol "I" material and
may be obtained in accordance with the instructions in
Navy Stock List of Forms and Publications, NAVSUP
Publication 2002. Marine Corps activities will
requisition forms in accordance with instructions
contained in Chapter 22 of Marine Corps Unified
Material Management System Manual, Marine Corps
Order P4400.84. The SF forms are available from
GSA Stores and Forms Supply Depots. See NAVSO
Publication 2345.

c. Forms prescribed by MCM. Where forms are

prescribed by the Manual for Courts-Martial, but are
not immediately available, convening authorities may
improvise as necessary, using the MCM, and its ap-
pendices as guides.

SUBPART C3 -- POST-TRIAL MATTERS

0149 REPORT OF RESULTS OF TRIAL If the sentence includes confinement, notification shall
be in writing in the form prescribed in Appendix A-1-j,
After final adjournment of a court-martial, the trial completed so as to contain all applicable information,
counsel or summary court-martial, as appropriate, will and a copy forwarded to the commanding officer/
promptly notify the convening authority and the officer in charge of the brig or confinement facility in
accused's commanding officer of the results of the trial. which the accused is confined. If the sentence includes

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forfeitures and/or reduction in grade, a report of results to complete this requirement and attached to DD Form
of trial must be forwarded to the appropriate Personnel 2329. Use of DD Form 2329 is not required, but is
Support Detachment/Unit Diary Clerk and include, if strongly recommended because it fulfills the
applicable, information regarding approved requests requirements of R.C.M. 1305.
for deferments of adjudged and/or automatic
forfeitures and adjudged reductions in grade. (1) The following documents shall be attached to
Appendix A-1-j may be used in all cases. the report of summary court-martial:

0150 RECORD OF TRIAL (a) Convening order;

a. Authentication of record of trial in special courts- (b) Charge sheet;

martial not involving a bad-conduct discharge. The
record of trial of a special court-martial in which a bad- (c) Acknowledgement of rights on DD Form
conduct discharge was not adjudged shall be 2329, if executed; and
authenticated in the same manner as general courts-
martial and special courts-martial adjudging a bad- (d) Waiver of right to refuse summary court-
conduct discharge. See R.C.M. 1104(a)(2)(A), MCM. martial, if executed.

b. Retention of trial notes or recordings. The trial (2) A concise synopsis of the evidence considered
counsel in every general and special court-martial shall by the summary court-martial on any charge and
ensure that any notes (stenographic or otherwise) or specification of which an accused has been convicted
any recordings (mechanical or voice) from which the contrary to a plea of not guilty.
record of trial was prepared are retained until such time
as review of the case is final. (3) A concise synopsis of all matters considered in
aggravation and in extenuation and mitigation.
c. Security classification. Records of trial containing
classified matter shall be properly classified in (4) All documentary and physical evidence offered
accordance with the provisions of R.C.M. 1103(h), at the summary court-martial, except that evidence
MCM, and SECNAVINST 5510.36 (series). Copies which relates solely to an offense of which the accused
of such records for delivery to the accused shall be is found not guilty or is dismissed. This evidence shall
prepared and handled in accordance with R.C.M. be attached to the report of summary court-martial
1104(b)(1)(D), MCM. Attention is directed to the fact where practicable; copies, photographs, or descriptions
that, while SECNAVINST 5510.36 (series) requires should be substituted when it is not practicable to
that matter bear the overall classification of its highest include the original.
component, that degree of classification is not then
imparted to other components. Rather it authorizes 0151 INITIAL REVIEW AND ACTION
and requires that a component be marked with the
classification it warrants (if any). Misunderstanding of a. Convening authority
these provisions may result in erroneously marking as
classified each page of a voluminous record, rendering (1) When action may be taken. The convening
review for downgrading unnecessarily difficult, and authority, or other person authorized to act under
excision for delivery to the accused or counsel subsection b, may take action only after the applicable
impossible. time periods under R.C.M. 1105(c), MCM, have
expired or the accused has waived the right to present
d. Summary court-martial record of trial. A report of matters under R.C.M. 1105(d), MCM, whichever is
summary court-martial shall be completed and attached earlier. In any case which results in an acquittal on all
to the record of trial for all summary courts-martial charges and specifications, the convening authority
conducted, except for those which result in not guilty shall not take any action approving or disapproving the
findings or dismissals to all charges and specifications. findings of not guilty or any ruling amounting to a
The form prescribed in Appendix A-1-p may be used finding of not guilty; however, a promulgating order is

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required in accordance with R.C.M. 1114, MCM, and an officer exercising general court-martial jurisdiction.
section 0155. For summary and special courts-martial, this will
normally be the officer exercising general court-martial
(2) Companion cases tried separately. In court- jurisdiction who is superior in the chain of command
martial cases where the separate trial of a companion unless, in the discretion of the officer who would
case is ordered, the convening authority shall so normally take action as convening authority, it will
indicate in his action on the record in each case. also be impracticable for that officer exercising general
court-martial jurisdiction to take the convening
(3) Suspension of sentences. Convening authority's action. The letter or message which causes
authorities are encouraged to suspend, for a the record to be so forwarded shall contain a statement
probationary period, all or any part of a sentence, when of the reasons why the normal convening authority
such action would promote discipline, and when the could not act on the record, and any other matters
accused's prospects for rehabilitation would more deemed appropriate by the forwarding officer.
likely be enhanced by probation than by the execution
of all or any part of the sentence adjudged. c. Legal officer/staff judge advocate recommendation.
In each general Courts-Martial which results in a
(4) Matters to be considered. The convening finding of guilty or each special Courts-Martial which
authority shall follow the provisions of R.C.M. includes a bad-conduct discharge, the legal officer or
1107(b)(3), MCM. staff judge advocate of the convening authority shall
prepare a concise written recommendation to assist the
b. When impracticable for convening authority to act convening authority in deciding what action to take on
the sentence. The matters to be included in the
(1) For commands in the Navy chain of command, recommendation shall be as prescribed in R.C.M.
if it is impracticable for the person who normally 1106, MCM and may be submitted in a form similar to
would take action as convening authority to do so, that Appendix A-1-k. An award, for the purpose of
person shall cause the record of trial to be forwarded, R.C.M. 1106(d)(3)(C), is defined as one specified in
in the absence of specific direction to the contrary by the Precedence of Awards Table of the Navy and
an officer authorized to convene general courts-martial Marine Corps Awards Manual or other issuing
and superior in the chain of command to the convening Service's award regulations, and which is recorded in
authority, to the area coordinator or a subordinate the accused's field service record under the authority of
commander authorized to convene general courts- service record-keeping regulations. The legal officer
martial and designated by the area coordinator for this recommendation may not be signed by an enlisted
purpose. For mobile units, the area coordinator or member even if an enlisted member is filling the legal
designated subordinate commander is the area officer billet. The staff judge advocate
coordinator or designated subordinate commander recommendation also may not be signed by an
most convenient at the time of forwarding of the assistant staff judge advocate unless he or she is
record. The letter or message which causes the record officially acting for an absent staff judge advocate in
to be so forwarded shall contain a statement of the making that recommendation. If the convening
reasons why the normal convening authority could not authority has a legal officer but no staff judge
act on the record, and any other matters deemed advocate, the convening authority may, as a matter of
appropriate by the forwarding officer. discretion, and absent alternative direction by the
officer exercising general Courts-Martial jurisdiction
(2) For commands in the chain of command of the and superior in the chain of command to the convening
Commandant of the Marine Corps, unless specifically authority, request the designation of a staff judge
directed to the contrary by an officer exercising advocate to prepare the recommendation.
general court-martial convening authority and superior
in the chain of command, if, in the discretion of the 0152 ACTIONS ON SPECIFIC TYPES OF
officer who would normally take action as convening SENTENCE
authority, it is impracticable for him to do so, that
person shall cause the record of trial to be forwarded to a. Summary courts-martial. The convening authority

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may apportion forfeitures of pay adjudged by a
summary courts-martial under article 20, UCMJ, over Pursuant to the sentence of the court as approved, a
one month, but as a matter of policy the period of punitive letter is this date being served upon the
apportionment should not exceed three months. accused and a copy is incorporated as part of this
action.
b. Sentences including reprimand (5) Forwarding copy to Department. Upon receipt
of the accused's written statement or a written
(1) General. Reprimands issued in execution of declaration that he does not desire to make a statement,
courts-martial sentences must be in writing. Except as an additional copy, with the statement or declaration,
otherwise prescribed in this section, sections shall be forwarded to Commander, Navy Personnel
0114f(3)(a)-(c) apply to punitive letters issued in Command (PERS-834 for officers and PERS-832 for
execution of a court-martial sentence. Punitive letters enlisted) or the Commandant of the Marine Corps
issued in execution of court-martial sentences need not (Code JAM for officers and Code MMRB-20 for
be designated For Official Use Only. enlisted), as appropriate.

(2) By whom issued. The convening authority may (6) Appeals. Review, including appellate review,
issue punitive letters in execution of summary courts- of punitive letters issued as part of an approved court-
martial sentences. When a convening authority orders martial sentence will be accomplished as provided for
a special or general court-martial sentence imposing a by the Uniform Code of Military Justice, the Manual
punitive letter executed, the letter shall be issued as for Courts-Martial, and this Manual. No separate
part of the action on the record under R.C.M. appeal from these letters will be considered.
1107(f)(4)(G), MCM. Otherwise, the letter shall be
issued as part of the promulgating order of the officer c. Automatic reduction of enlisted accused. Auto-
who subsequently directs execution of the sentence. matic reduction to the lowest enlisted pay grade under
article 58a, UCMJ, shall be effected in the naval
(3) Contents. The punitive letter shall include the service only in accordance with this subsection, which
time and place of trial, type of court, and a statement of is the regulation prescribed by the Secretary of the
the charges and specifications of which convicted. It Navy pursuant to article 58a(a), UCMJ.
shall also contain the following:
(1) Reduction to the lowest enlisted pay grade will
A copy of this letter will be placed in your official be automatically effected only in a case in which the
record in [the Navy Personnel Command] sentence, as approved by the convening authority, in-
[Headquarters, U.S. Marine Corps]. You may cludes, whether or not suspended, either:
forward within 15 days after receipt of this action a
statement concerning this letter for inclusion in (a) A punitive discharge, or
your record. If you elect not to submit a statement,
you shall so state officially in writing within the (b) Confinement in excess of 90 days (if the
time prescribed. In connection with your sentence is awarded in days) or three months (if the
statement, any statement submitted shall be sentence is awarded in other than days).
couched in temperate language and shall be
confined to pertinent facts. Opinions shall not be (2) In his sole discretion, the convening authority
expressed nor the motives of others impugned. may remit the automatic reduction, or may retain the
Your statement shall not contain countercharges. accused in the pay grade held at the time of sentence or
in an intermediate pay grade and suspend the
(4) Procedure for issuance. The original letter shall automatic reduction to pay grade E-1 that would
be delivered to the accused and a copy appended to the otherwise be effected under article 58a, UCMJ, and
convening authority's action (or the promulgating order this subsection, utilizing the forms in Appendix 16,
of the officer subsequently directing execution of the MCM, as guides. The automatic reduction may be
sentence). The action (or order) should refer to the suspended without regard to whether any part of the
letter as follows: approved sentence was suspended. If, however, the

1-54
adjudged sentence includes a reduction in pay grade
which is below the pay grade at which the convening
authority desires to have the accused retained, the
reduction adjudged in the sentence should be
suspended for the same period as the automatic
reduction is suspended. Additionally, the convening
authority may direct that the accused serve in pay 0153 DISPOSITION OF RECORDS FOL-
grade E-1 while in confinement but be returned to the LOWING CONVENING AUTHORITY
pay grade held at the time of sentence or an ACTION
intermediate pay grade upon release from confinement.
Failure of the convening authority to address a. Summary courts-martial and special courts-martial
automatic reduction will result in the automatic not involving a bad-conduct discharge
reduction to pay grade E-1 on the date of the
convening authority's action. (1) Review by a judge advocate. Records of trial
requiring review under R.C.M. 1112, MCM, shall be
(3) The following forms may be used as guides for forwarded to the staff judge advocate of the officer
suspending automatic reduction without suspending exercising general court-martial jurisdiction designated
any of the approved sentence (except reduction if in subsection (2). The staff judge advocate may
included in the sentence) or reducing the accused to E- review the record pursuant to R.C.M. 1112, MCM, or
1 while in confinement and returning the accused to may cause another judge advocate to perform such
the pay grade held at the time of sentence or an review. Upon completion of the review, records
intermediate pay grade upon release from confinement: requiring action under article 64(b), UCMJ, and
R.C.M. 1112(e)(1) or (3), MCM, shall be forwarded to
(a) In the foregoing case of ________, the the authority designated in subsection 0154b.
sentence is approved [and will be duly executed] but
[the execution of so much thereof as provides for (2) Designation of the authority who may take
reduction to pay grade ____ and] automatic reduction action under Article 64(b)
to pay grade E-1 is suspended until __________, at
which time, unless the suspension is sooner vacated, (a) For commands in a Navy chain of command,
the suspended portions will be remitted without further the authority who may take action pursuant to article
action. The accused will [continue to] serve in pay 64(b), UCMJ, shall be, in the absence of specific
grade ____ unless the suspension of the [reduction to direction to the contrary by an officer authorized to
pay grade ____ and] automatic reduction is vacated, in convene general courts-martial and superior in the
which event the accused at that time will be reduced to chain of command to the convening authority, the area
the pay grade of E-1. coordinator or a subordinate commander authorized to
convene general courts-martial and designated for this
(b) In the foregoing case of ________, the purpose, and who could have exercised general court-
sentence is approved [and will be duly executed]. The martial jurisdiction over the accused at the time the
accused will serve in pay grade E-1 from this date until court-martial was held.
released from confinement at which time he will be
returned to pay grade ____. (b) For commands in the chain of command of
the Commandant of the Marine Corps, the authority
d. Sentences extending to dismissal. Pursuant to the who may take action pursuant to Article 64(b), UCMJ,
authority of article 71(b), UCMJ, the Under Secretary shall be the officer exercising general court-martial
of the Navy and the Assistant Secretaries of the Navy jurisdiction over the accused at the time the court-
have been designated by the Secretary as empowered martial was held.
to approve that part of a sentence providing for
dismissal of an officer or a midshipman, and may com- (3) Identification of judge advocate to whom
mute, remit, or suspend the sentence, or any part of the record is forwarded for review. In all cases, the action
sentence, as they see fit. of the convening authority in forwarding the record for

1-55
judge advocate review shall identify the judge COURT-MARTIAL RECORDS
advocate to whom the record is forwarded by stating
the official title, such as "The record of trial is a. JAG supervision. Records of all trials by courts-
forwarded to the Staff Judge Advocate, Commander, martial in the naval service are under the supervision
Naval Base, Norfolk, for review under article 64(a), of the Judge Advocate General of the Navy.
UCMJ."

b. General courts-martial and special courts-martial

which include an unsuspended or suspended bad- b. Filing of courts-martial records
conduct discharge
(1) General courts-martial. All records of trial by
(1) Forwarding general court-martial shall, after completion of final
action, be filed in the Office of the Judge Advocate
(a) General courts-martial. Upon completion of General.
the convening authority's action, the record of trial
which should include a review of a case under R.C.M. (2) Special courts-martial. Records of trial by
1112, MCM, in any case in which the accused has special court-martial that involve an officer accused or
waived appellate review under R.C.M. 1110, MCM, that include a suspended or unsuspended bad-conduct
shall be sent directly to the Navy-Marine Corps discharge, or that have been returned for further action,
Appellate Review Activity (Code 40.31), 716 Sicard shall, after completion of final action, be filed in the
Street, SE, Suite 1000, Washington Navy Yard, DC Office of the Judge Advocate General. All other
20374-5047. special court-martial records shall be filed in the
manner provided below for summary courts-martial.
(b) Special courts-martial. Upon completion of
the convening authority's action, if the approved (3) Summary courts-martial
sentence includes a bad-conduct discharge, suspended
or unsuspended, and the accused has not waived (a) Shore activities where records of trial have
appellate review under R.C.M. 1110, MCM, the record been reviewed under article 64, UCMJ, and section
of trial shall be forwarded as prescribed in subsection 0153a shall retain original records of proceedings for a
b(1)(a). If the accused has waived appellate review, period of two years after final action. At the
the record of trial shall be forwarded as prescribed in termination of such retention period, the original
subsection a(1). records of proceedings shall be transferred to the
National Personnel Records Center (Military Personnel
(c) Records with "NMCM" numbers assigned. Records), General Services Administration, 9700 Page
Any case which has been assigned an "NMCM" num- Boulevard, St. Louis, MO 63132-5100.
ber shall be forwarded as prescribed in subsection
b(1)(a) regardless of the final disposition of the case. (b) Fleet activities, including Fleet Air Wings
and Fleet Marine Forces, where records of trial have
(2) Copy to the Naval Clemency and Parole been reviewed under article 64, UCMJ, and section
Board. If the sentence, as approved by the convening 0153a shall retain original records of proceedings for a
authority, includes an unsuspended punitive discharge, period of three months after final action. At the
dismissal, or confinement for 12 months or more, one termination of such retention period, the original
of the copies of the record of trial prepared in records of proceedings shall be transferred to the Na-
accordance with R.C.M. 1103(g)(1), MCM, shall be tional Personnel Records Center (Military Personnel
forwarded to the Director, Naval Council of Personnel Records), General Services Administration, 9700 Page
Boards, Attn: Naval Clemency and Parole Board, 720 Boulevard, St. Louis, MO 63132-5100.
Kennon Street, SE, Rm 309, Washington Navy Yard,
DC 20374-5023. c. Records containing classified information. The
original of any record of trial that contains classified
0154 FILING AND SUPERVISION OF information shall be forwarded to Navy-Marine Corps

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Appellate Review Activity (Code 40.31), 716 Sicard (1) Supplementary orders in cases involving death
Street, SE, Suite 1000, Washington Navy Yard, DC sentences and dismissals are issued by the Judge
20374-5047, for filing and availability for inspection Advocate General by direction of the Secretary of the
under section 0166. Navy.

(2) Other supplementary orders shall be issued by

the cognizant general court-martial authority. In cases
not reviewed by the U.S. Court of Criminal Appeals
for the Armed Forces (by petition or certification),
0155 PROMULGATING ORDERS-- orders should be issued immediately following the
GENERAL AND SPECIAL COURTS- accused's execution of a "Request for Immediate
MARTIAL Execution of Discharge" (See section 0165) or upon
expiration of 60 days from the date of service of the
a. When promulgating orders required. Any action NMCCA decision upon the accused. In cases con-
taken on the proceedings, findings, or sentence of a sidered by the U.S. Court of Criminal Appeals for the
general or special court-martial by the convening au- Armed Forces or the U.S. Supreme Court, sup-
thority or any other party empowered to take such plementary orders should be issued upon notification
action shall be promulgated as prescribed in R.C.M. of completion of review by the court.
1114, MCM. The promulgating order and convening
authority's action may be contained within the same (3) All supplementary orders in NMCCA cases
document, when personally signed by the convening shall bear the "NMCM" number appearing on the
authority. Separate orders shall be issued for each NMCCA decision.
accused in the case of a joint or common trial. In cases
which result in an acquittal on all charges and specifi- d. Form. The form of a promulgating order is
cations, a promulgating order is required in accordance prescribed in Appendix 17, MCM. In copying and
with R.C.M. 1114(c)(3), MCM, which will indicate including the action of the convening authority in the
that the case resulted in an acquittal, and will include promulgating order, any synopsis of the accused's
the charges and specifications, findings, and record and/or circumstances of the offense contained
appropriate signatures. in the convening authority's action pursuant to section
0151a(4) and/or section 0152b shall also be copied and
b. When supplementary order is not required. Where included in the promulgating order. The order shall be
the findings and sentence set forth in the initial subscribed by the officer issuing the order or by a
promulgating order are affirmed without modification subordinate officer designated by him. In either case,
upon subsequent review of the case, no supplementary the name, grade, and title of the subscribing officer,
promulgating order is required except as necessary to including the organization or unit, shall be given.
order the execution of the sentence or to designate a Where a subordinate officer signs by direction, his
place of confinement. name, title, and organization shall be followed by the
words: By direction of (name, grade, title, and organi-
c. Supplementary orders in U.S. Navy-Marine Corps zation of issuing officer). A duplicate original of a
Court of Criminal Appeals (NMCCA) cases. If the promulgating order is a carbon copy as complete as the
sentence was ordered executed or suspended in its original in all respects, including the signature of the
entirety by the convening or other authority, and the officer who signed the original, or an identical copy
approved findings and sentence have been affirmed made by photographic or other duplicating process. A
without modification by the NMCCA and, in certified copy of a promulgating order is a copy
appropriate cases, the U.S. Court of Criminal Appeals bearing the statement "Certified to be a true copy" over
for the Armed Forces or the U.S. Supreme Court, no the signature, grade, and title of an officer, or of an
supplementary court-martial order is necessary. A enlisted person in the legalman rating (Navy), or in the
supplementary court-martial order shall be issued in all legal occupational field (Marine Corps), of grade E-6
other cases. Such orders shall be published as follows: or above, who has been designated in writing by the
officer issuing the promulgating order.

1-57
 by the command name.
e. Number and distribution. All initial and
supplementary promulgating orders must be legible (4) Duplicate originals, certified copies, or plain
and shall be distributed as follows: copies:

(1) Original to be attached to original record of (a) One to the accused.

trial. If the original record of trial has been forwarded,
the original order, along with the appropriate copies as (b) One to the commanding officer of the naval
described below, shall be sent to the command or legal service office at which the accused was tried.
activity to which the original record of trial was
forwarded. (c) One each to the military judge, trial counsel,
and defense counsel of the court-martial before which
(2) Duplicate original to be placed in the service the case was tried.
record of the accused, unless the court-martial
proceedings resulted in acquittal of all charges, (d) One to the convening authority and, if the
disapproval of all findings of guilty, or disapproval of accused was serving in a command other than that of
the sentence by the convening authority when no the convening authority at the time of the alleged
findings have been expressly approved by him. In offense, one to the command in which he was then
cases involving Navy personnel, if applicable, forward serving.
to the Personnel Support Activity Detachment
maintaining the accused's service record. (e) One to each appropriate subordinate unit and
any other local distribution desired.
(3) Duplicate originals or certified copies:
f. Navy officer accused. In addition to the dis-
(a) One to be attached to the original record of tribution requirements of subsection e, ensure the
trial. following distribution is made when the accused is a
Navy officer:
(b) One to be attached to each copy of the record
of trial. (1) Copy to Officer in Charge, Personnel Support
Activity Detachment, Naval Training Center Great
(c) Two to the commanding officer of the Lakes, 315B Bronson Ave, Suite 207, Great Lakes, IL
accused if a brig or confinement facility is designated 60088 if U.S. Disciplinary Barracks, Fort
as the place of confinement; three if a disciplinary Leavenworth, KS is designated as the place of
command is designated as the place of confinement. confinement.
These copies should accompany the records of the
accused to the place of confinement. (2) Copy to Defense Finance and Accounting
Service/Cleveland Center (DFAS/CL), Special Claims
(d) One to Commander, Navy Personnel Department (Code FMASB), 1240 E. 9th Street,
Command (PERS 834) in the case of officers, or PERS Cleveland, OH 44199 if the sentence includes
832 in the case of enlisted). forfeiture of pay which has been approved by the
convening authority. Copies of all supplementary
(e) One to the officer exercising general court- orders promulgating the results of subsequent action
martial jurisdiction (OEGCMJ) over the accused at the taken on that portion of the sentence extending to
time of trial, and one to the current OEGCMJ over the forfeiture must include DFAS/CL (Code FMASB) as a
accused (if different). The OEGCMJ shall be distributee. Copies of all Courts-Martial orders
identified by the command name. extending to forfeiture of pay should be submitted
through the convening authority's disbursing officer
(f) In Navy cases, one to the type commander of for forwarding to DFAS/CL with other non-scan
the accused at the time of trial, if documents. See also Art. 1611-010 MILPERSMAN,
appropriate. The type commander shall be identified para. 70505 PAYPERSMAN.

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0156 PROMULGATING ORDERS-- c. Punitive discharge--Naval Clemency and Parole
SUMMARY COURTS-MARTIAL Board action

In accordance with R.C.M. 1114(a)(3), MCM, the (1) In general. Notwithstanding the fact that a
results of a trial by summary court-martial need be sentence may have been duly ordered executed, a
promulgated only to the accused. The results of any punitive discharge may not in fact be executed until the
review or action on a summary court-martial under provisions of SECNAVINST 5815.3 series have been
section 0153, after the initial action of the convening complied with.
authority, shall be forwarded to the convening
authority and to the commanding officer of the accused (2) Required documents. A complete copy of the
for notation in the service record or service record record of trial, including the promulgating order and
book of the accused. the legal officer's or staff judge advocate's recommen-
dation, shall be forwarded in those cases in which the
0157 SERVICE AND EXECUTION OF approved sentence includes an unsuspended punitive
SENTENCES discharge, dismissal, or confinement for 12 months or
more. See section 0153b(2).
a. General. Any part of a court-martial sentence
except death, dismissal, or a dishonorable or bad- d. Execution of death penalty. The manner in which
conduct discharge may be ordered executed by the a sentence to death is to be carried out shall be
convening authority or other person acting on the case determined by the Secretary of the Navy.
when initial action is taken under R.C.M. 1107, MCM,
and sections 0151 and 0152. If the accused waives e. Hard labor without confinement. R.C.M.
appellate review or has withdrawn the appeal, the 1003(b)(6), MCM, authorizes special and general
officer taking action under R.C.M. 1112(f), MCM, and courts-martial to sentence enlisted members to hard
section 0153a(2) may order a dishonorable or a bad- labor without confinement for up to three months. The
conduct discharge executed as part of the action immediate commander of an accused designates the
approving the sentence. In cases reviewed by the amount and character of the hard labor to be
NMCCA, the officer exercising general court-martial performed, which should conform to the guidelines
jurisdiction over the accused may order a dishonorable governing extra duties imposed as punishment under
or a bad-conduct discharge executed only after appel- article 15, UCMJ. See paragraph 5c(6) of Part V,
late review is completed and the judgment is final MCM.
within the meaning of R.C.M. 1209, MCM.
Dismissal of a commissioned officer or a midshipman 0158 REMISSION AND SUSPENSION
may only be ordered executed by the Secretary of the
Navy or his designate. See section 0152d. Only the a. Authority to remit or suspend sentences in general
President may order the punishment of death to be courts-martial, and special courts-martial in which the
executed. sentence includes a bad-conduct discharge. Pursuant
to article 74(a), UCMJ, and subject to the limitations in
b. Place and nature of confinement section 0159a, the Under Secretary of the Navy, the
Assistant Secretaries of the Navy, the Judge Advocate
(1) Designation of places of confinement. The General, and all officers exercising general court-
convening authority or other person taking the initial martial jurisdiction over the command to which the
action on a court-martial which sentenced an accused accused is attached are designated as empowered to
to confinement is a competent authority to designate remit or suspend any part or amount of the unexecuted
the place of confinement of naval prisoners. See portion of any sentence, including all uncollected
section 0169 series. forfeitures, other than a sentence approved by the
President. A sentence to death may not be suspended.
(2) Nature of confinement. See SECNAVINST
1640.9 series. b. Authority to remit or suspend sentences in

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summary courts-martial, and special courts-martial in martial jurisdiction may not remit or suspend, pursuant
which the sentence does not include a bad-conduct to article 74(a), UCMJ, any part or amount of the
discharge. Notwithstanding the limitations in section sentence in any case involving an officer or warrant
0159a, if the accused's commander has authority to officer.
convene a court-martial of the kind which adjudged the
sentence, that commander may suspend or remit any d. Authority of the Commanding Officer, Naval
part of the unexecuted part of any sentence by Station Norfolk, VA, and the Commanding Officer,
summary court-martial or of any sentence by special Marine Detachment, U.S. Disciplinary Barracks, Fort
court-martial which does not include a bad-conduct Leavenworth, KS. The Commanding Officer, Naval
discharge. R.C.M. 1108(b), MCM. Station, Norfolk, VA, and the Commanding Officer,
Marine Detachment, U.S. Disciplinary Barracks, Fort
c. Probationary period. Suspensions shall conform to Leavenworth, KS (or its successor command), may:
the conditions, limitations, and termination (1) effect actions directed by the Secretary
requirements of R.C.M. 1108(c)-1108(e), MCM. See following clemency review;
also R.C.M. 1109(b)(4), MCM, which governs
interruptions of a period of suspension due to (2) remit uncollected forfeitures of court-martial
unauthorized absence of the probationer or the prisoners returning to duty;
commencement of proceedings to vacate suspension.
For instructions concerning voluntary extension of (3) remit confinement, not in excess of 5 days, to
enlistment for the purpose of serving probation, see facilitate administration, by adjusting dates of transfer
SECNAVINST 5815.3 series. upon completion of confinement. Early releases in
excess of 5 days may be granted when specifically
d. Liaison with Naval Clemency and Parole Board. authorized by the Chief of Naval Personnel for Navy
Officers taking clemency action pursuant to the prisoners, or the Commandant of the Marine Corps for
authority of this section on any sentence including a Marine Corps prisoners; and
punitive discharge or confinement for 12 months or
more shall coordinate such action with the Naval (4) Exercise other authority specifically delegated
Clemency and Parole Board under the provisions of in writing by the Secretary.
SECNAVINST 5815.3 (series). This obligation to
coordinate does not limit the authority any officer 0160 VACATION OF SUSPENSION OF
otherwise has to take clemency action. SENTENCE

0159 LIMITATIONS ON AUTHORITY TO a. Review of confinement of probationer pending

REMIT AND SUSPEND SENTENCES vacation proceedings. The officers appointed under
section 0127d shall also conduct reviews of
a. Cases involving national security. No official of confinement under R.C.M. 1109(c)(4), MCM.
the DON, other than the Secretary of the Navy, may
remit or suspend, pursuant to article 74(a), UCMJ, and b. Notice of proceedings. In the case of courts-
R.C.M. 1107, MCM, any part or amount of the martial under review, immediate notice of the vacation
approved sentence in any case designated as a national of any punishment shall be made to the command or
security case in accordance with section 0126. activity conducting the review. In the case of courts-
martial in which the approved sentence includes a
b. Flag and general officers. Notwithstanding punitive discharge, dismissal, death, or confinement of
subsection 0158a, the Judge Advocate General may 1 year or more, and appellate review has not been
not remit or suspend, pursuant to article 74(a), UCMJ, waived, notice shall be made to both the Navy-Marine
any part or amount of the sentence in any case Corps Appellate Review Activity (Office of the Judge
involving a flag or general officer. Advocate General (Code 40)) and the NMCCA.

c. Officers and warrant officers. Notwithstanding c. Filing of report of proceedings. The original
subsection 0158a, officers exercising general court- record of any proceedings in connection with vacation

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of suspension under R.C.M. 1109, MCM, shall be court, lack of jurisdiction over the accused or the
included in the record of trial. See R.C.M. offense, error prejudicial to the substantial rights of the
1103(b)(3)(M). If the authority ordering the vacation accused, or the appropriateness of the sentence." An
is not in possession of the record of trial, that authority application by the accused for such a review must be
shall transmit the record of the vacation proceedings to filed in the Office of the Judge Advocate General
the command or activity to which the original record of within 2 years of the convening authority's action on
trial was forwarded for inclusion in the record of trial. the sentence, unless the accused establishes good cause
In the case of vacation of a suspended general court- for failure to file within that time.
martial sentence or of a suspended special court-
martial sentence including a bad-conduct discharge, b. Time limitations. In order to be considered by the
two copies of the record of any vacation proceedings Judge Advocate General, an application for relief must
shall be forwarded with the original of such vacation be placed in military channels if the applicant is on
proceedings. active duty, or be deposited in the mail if the applicant
d. Execution of vacated punishments. The execution is no longer on active duty, on or before the last day of
of a vacated punishment is subject to the restrictions of the 2-year period beginning on the date the sentence is
section 0157 and R.C.M. 1113(c), MCM. approved by the convening authority. An application
not filed in compliance with these time limits may be
0161 REQUEST FOR WITHDRAWAL OF considered if the Judge Advocate General determines,
APPELLATE REVIEW in his sole discretion, that "good cause" for failure to
file within the time limits has been established by the
a. Article 66 cases. A request for withdrawal from applicant.
appellate review of a case forwarded for review under
article 66, UCMJ, will ordinarily be granted by c. Submission procedures. Applications for relief
NMCCA if the case is pending before the NMCCA. may be submitted to the Judge Advocate General by
Requests, including a copy of the charge sheet, shall be letter. If the accused is on active duty, the application
forwarded to Navy-Marine Corps Appellate Review shall be submitted via the applicant's commanding
Activity, (Code 40.31), 716 Sicard Street, SE, Suite officer, the command that convened the court, and the
1000, Washington Navy Yard DC 20374-5047. command that reviewed the case under article 64(a) or
(b), UCMJ. If the original record of trial is held by the
b. Article 69(a) cases. A request for withdrawal command that reviewed the case under article 64(a) or
from appellate review of a case forwarded for (b), UCMJ, it shall be forwarded as an enclosure to the
examination under article 69(a), UCMJ, will ordinarily endorsement. If the original record of trial has been
be granted, unless the examination in the Office of the filed in the National Personnel Records Center (see
Judge Advocate General has reached the point where it section 0154b), the endorsement will include all
would be impracticable to return the case to the field necessary retrieval data (accession number, box
for review under article 64, UCMJ, and R.C.M. 1112, number, and shelf location) obtained from the receipt
MCM. Requests, including a copy of the charge sheet, returned from the National Personnel Records Center
shall be forwarded to Navy-Marine Corps Appellate to the sending activity. This endorsement shall also
Review Activity, (Code 40.31), 716 Sicard Street, SE, include information and specific comment on the
Suite 1000, Washington Navy Yard, DC 20374- 5047. grounds for relief asserted in the application, and an
opinion on the merits of the application. If the
0162 APPLICATION FOR RELIEF— applicant is no longer on active duty, the application
ARTICLE 69(b) may be submitted directly to the Judge Advocate
General.
a. General. Article 69(b), UCMJ, provides that "The
findings or sentence, or both, in a court-martial case d. Contents of application. All applications for relief
not reviewed under subsection (a) or under section 866 shall contain:
of this title (article 66) may be modified or set aside, in
whole or in part, by the Judge Advocate General on the (1) full name of the applicant;
ground of newly discovered evidence, fraud on the

1-61
 (2) social security number and branch of service, if and
any;
(15) if the application is signed by a person other
(3) present grade if on active duty or retired, or than the applicant pursuant to subsection e, an
"civilian" or "deceased," as applicable; explanation of the circumstances rendering the
applicant incapable of making application.
(4) address at time the application is forwarded;
(16) the applicant's copy of the record of trial will
(5) date of trial; not be forwarded with the application for relief, unless
specifically requested by the Judge Advocate General.
(6) place of trial;
e. Signatures on application. Unless incapable of
(7) command title of the organization at which the making application, the applicant shall personally sign
court-martial was convened (convening authority); the application under oath before an official authorized
(8) command title of the officer exercising article to administer oaths. If the applicant is incapable of
64 review authority over the applicant at the time of making application, the application may be signed
trial (if applicable); under oath and submitted by the applicant's spouse,
next of kin, executor, guardian, or other person with a
(9) type of court-martial which convicted the ap- proper interest in the matter. In this regard, one is
plicant, and sentence adjudged; considered incapable of making application for
purposes of this section when unable to sign the
(10) general grounds for relief, which must be one application under oath due to physical or mental
or more of the following: incapacity.

(a) newly discovered evidence; 0163 PETITION FOR NEW TRIAL--

ARTICLE 73
(b) fraud on the court;
Petitions for a new trial under article 73, UCMJ, shall
(c) lack of jurisdiction over the accused or the comply with the form and procedures set forth in
offense; R.C.M. 1210, MCM, and shall be sent directly to the
Navy-Marine Corps Appellate Review Activity (Code
(d) error prejudicial to the substantial rights of 40), 716 Sicard Street, SE, Suite 1000, Washington
the accused; Navy Yard, DC 20374-5047.

(e) appropriateness of the sentence. 0164 NOTIFICATION TO ACCUSED OF

COURT OF CRIMINAL APPEALS
(11) an elaboration of the specific prejudice result- DECISION
ing from any error cited. Legal authorities to support
the applicant's contentions may be included, and the a. Current address of the accused. Upon receipt of
format used may take the form of a legal brief if the the decision of the NMCCA, and when in accordance
applicant so desires; with the provisions of R.C.M. 1203(d)(1), MCM, the
Judge Advocate General elects not to certify the case
(12) any other matter which the applicant desires to to the U.S. Court of Appeals for the Armed Forces, the
submit; Office of the Judge Advocate General will use the
address provided by the accused if the accused is on
(13) relief requested; appellate leave, or, if the accused has not provided an
address and is on appellate leave or is on active duty,
(14) facts and circumstances to establish "good will request from the officer exercising general Courts-
cause" for a failure to file the application within the Martial jurisdiction over the command to which the
time limits prescribed in subsection b, if applicable; accused is attached the current address of the accused.

1-62
The officer exercising general Courts-Martial
jurisdiction will provide the current military address of 0165 REQUEST FOR IMMEDIATE
the accused if the accused is on active duty, or the EXECUTION OF DISCHARGE
latest address listed for the accused in the accused's
official service record or service record book. If a. General. Prior to completion of appellate review,
requested, the address shall be provided to the Office an accused may request immediate execution of the
of the Judge Advocate General by the most expeditous unexecuted portion of his sentence, following
means. completion of the confinement portion thereof, if any,
in those cases in which the sentence as affirmed by the
b. Promulgation package. Using the address NMCCA:
obtained as detailed above, a "promulgation package"
consisting of the accused's copy of the NMCCA (1) includes an unsuspended punitive discharge;
decision containing the endorsement notifying the and
accused of his right to petition for review by the U.S.
Court of Criminal Appeals for the Armed Forces, and a (2) either does not include confinement, or the
form petition with instructions, will be forwarded confinement portion thereof has been or will be
directly to the accused by first-class certified mail. If completed prior to 60 days from the date the accused is
the accused is in a military confinement facility, the served with a copy of the NMCCA decision.
package will be forwarded to the commanding officer
or officer in charge of the confinement facility for b. Conditions of approval. Such requests may be
delivery to the accused. The commanding offi- approved by the officer exercising general
cer/officer in charge of such facility should ensure that court-martial jurisdiction subject to the following
the certificate of personal service is completed and conditions:
returned to the Office of the Judge Advocate
General. (1) that the accused has received a copy of the
decision of the NMCCA in his case;
c. Copies of decision. Copies of the NMCCA
decision will be forwarded to the officer exercising (2) that the accused has had fully explained to him
general court-martial jurisdiction over the accused. the right to petition the U.S. Court of Appeals for the
Additionally, copies of the NMCCA decision will be Armed Forces for grant of review;
forwarded to the original general court-martial
convening authority and the convening authority, as (3) that the accused does not have an appeal
applicable, for information and appropriate pending before the U.S. Court of Appeals for the
distribution, as a matter of courtesy, to the military Armed Forces;
judge, trial counsel, and defense counsel.
(4) that the accused does not intend to appeal to the
d. Change in address. Notice of any change in U.S. Court of Appeals for the Armed Forces but,
address of the accused due to transfer, appellate leave, nevertheless, understands that the request for
or any reason shall be immediately given to the Judge immediate release does not affect the right seasonably
Advocate General. to petition the U.S. Court of Appeals for the Armed
Forces;
e. Completion of appellate review. Notification of
the completion of appellate review, i.e., expiration of (5) that the accused has consulted counsel of his
the 60-day appeal period if no petition for review is own choice; and
filed, or final review by the U.S. Court of Appeals for
the Armed Forces or the U.S. Supreme Court, will be (6) that Naval Clemency and Parole Board review,
forwarded by the Office of the Judge Advocate under the provisions of SECNAVINST 5815.3H, if
General to the cognizant general Courts-Martial applicable, has been completed.
convening authority for compliance with sections 0157
and 0165, if applicable. c. Execution of unexecuted portion of sentence.

1-63
Upon approval of such requests, the officer exercising subsection a. "Competent authority," as used herein,
general court-martial jurisdiction shall order the shall be the commanding officer of such persons and
unexecuted portion of the sentence to be duly the administrative determination shall be made through
executed. an investigation pursuant to the JAG Manual and
approved on review by a general court-martial
d. Form of request for immediate execution of authority.
discharge. The prescribed form is set forth in
Appendix A-1-l. Three signed copies of the request
shall be transmitted to the Judge Advocate General.

0166 INSPECTION OF RECORD OF TRIAL

CONTAINING CLASSIFIED IN-
FORMATION

In any courts-martial where classified information has

been deleted or withdrawn from the accused's copy of
the record of trial, the accused may personally inspect
the original record of trial in the Office of the Judge
Advocate General after final review in the case has
been completed, subject to the requirements of
SECNAVINST 5510.36 (series). Applications for such
inspections may be submitted to the Navy-Marine
Corps Appellate Review Activity (Code 40), 716
Sicard Street, SE, Suite 1000, Washington Navy Yard,
DC 20374-5047.

0167 SETOFF OF INDEBTEDNESS OF A

PERSON AGAINST PAY

a. Courts-martial decisions. When the United States

has suffered loss of money or property through the
offenses of selling or otherwise disposing of, or
willfully damaging or losing military property,
willfully and wrongfully hazarding a vessel, larceny,
wrongful appropriation, robbery, forgery, arson, or
fraud for which persons, other than accountable
officers as defined in section 0203, Ch 2, Vol. 5, DOD
Financial Management Regulation, have been
convicted by Courts-Martial, the amount of such loss
constitutes an indebtedness to the United States which
will be set off against the final pay and allowances due
such person at the time of dismissal, discharge, or
release from active duty.

b. Administrative determinations. In addition, when

the Government suffers a loss of money and competent
authority has administratively determined that the loss
occurred through the fraud, forgery, or other unlawful
acts of such persons as described in subsection a, the
amount of such loss shall be set off as described in

1-64
 c. Army and Air Force property. When the money or
property involved belongs to the Army or the Air
Force, and such service determines liability through
the procedures provided by the authority of 37 U.S.C.
section 1007 and demands setoff against the final pay
and allowances of any naval service personnel, setoff
shall be effected in accordance with subsection a.

d. Voluntary restitution. Immediate recovery action

may be instituted on the basis of a voluntary offer of
the member to make restitution of all or part of any
indebtedness to the Government. The voluntary offer
constitutes assumption of pecuniary responsibility for
the loss and, as such, is sufficient to authorize
checkage of current pay, if required, to collect the
amount of the indebtedness. See also 10 U.S.C.
section 6161 and SECNAVINST 7220.38 series
concerning the possibility of remission or cancellation
of an enlisted member's indebtedness. Nothing herein
shall be construed as precluding setoff against final
pay in other cases when such action is directed by
competent authority

PART D - MISCELLANEOUS

0168 APPREHENSION BY CIVILIAN to prevent disgrace to the service, the commission of a

AGENTS OF THE NAVAL CRIMINAL serious offense, or the escape of one who has
INVESTIGATIVE SERVICE committed a serious offense. Such a civilian agent,
even though not conducting an investigation relating to
Pursuant to the provisions of R.C.M. 302(b)(1), MCM, the person apprehended, may also apprehend a person
and under the authority of article 7(b), UCMJ, any subject to the UCMJ upon observation of the
civilian agent of the Naval Criminal Investigative commission of a felony or a misdemeanor amounting
Service who is duly accredited by the Director, Naval to a breach of the peace occurring in the agent's
Criminal Investigative Service, and who is engaged in presence. A person so apprehended must be delivered
conducting an investigation, with or without prior promptly to his commanding officer or other
approval or a request from a competent command, appropriate military authority.
within the investigative jurisdiction of the Naval
Criminal Investigative Service as established in 0169 AUTHORITY TO PRESCRIBE
departmental directives, may apprehend, if necessary, REGULATIONS RELATING TO THE
persons subject to the UCMJ or to trial thereunder, DESIGNATION AND CHANGING OF
upon reasonable belief that an offense has been PLACES OF CONFINEMENT
committed and that the person apprehended committed
it. A person so apprehended must be taken promptly The Chief of Naval Personnel and the Commandant of
before his commanding officer or other appropriate the Marine Corps are authorized to issue joint
military authority. Such a civilian agent may regulations as required relating to the designation and
apprehend a commissioned officer or a warrant officer the changing of places of confinement of naval
only pursuant to specific orders of a commissioned prisoners, the transfer of naval prisoners among
officer except where such an apprehension is necessary military confinement facilities, and transfers from

1-65
military facilities, to civilian confinement facilities. voluntary separation, waiving an administrative
See BUPERSINST 1640.17 series and MCO 1640.3. discharge board, or entering a guilty plea at Courts-
Martial (in accordance with a pretrial agreement or
0170 FORMS SUPPLEMENTING THE otherwise) that he may be required to reimburse the
MILITARY RULES OF EVIDENCE United States for the cost of advanced education
assistance not repaid by active service as specified in
a. Interrogations. See M.R.E. 301-305. Appendix the written agreement entered into with the
A-1-m contains a suggested format which may be Government prior to accepting advanced education
utilized by investigative personnel in cases in which assistance. See Appendix A-1-r(1). Recoupment
criminal suspects desire to waive their rights applies to those individuals who have received, at
concerning self-incrimination, and to make statements. Government expense, education or training above the
This format is designed as a guide and its use is not secondary level. Applicable programs may include,
mandatory. but are not limited to, the United States service
academies, Reserve Officer Training Corps, the
b. Search and seizure. See M.R.E. 311-316. Ap- Funded Law Education Program, the Armed Forces
pendices A-1-n and A-1-o contain suggested formats Health Professions Scholarship Program, other post-
for recording information pertaining to authorization graduate programs, and enlisted educational programs
for searches (with instructions), and the granting of such as the Enlisted Education Advancement Program.
consent to search. These formats are designed as
guides in processing problems which may arise in
connection with cases involving searches and seizures. b. No additional rights. This requirement is not
Use of these formats, even as guides, is not man- intended to confer rights on an individual but to
datory, but rests within the discretion of local preserve for the Government the possibility of
commanders. recoupment. Failure to advise a member of the
0171 RECOUPMENT OF ADVANCED possibility of recoupment, as discussed in
EDUCATION ASSISTANCE subparagraph a above, before the member submits a
request for retirement or makes a personal decision
a. Authority. Section 2005 of title 10, U.S. Code, regarding administrative, nonjudicial, or judicial action
authorizes the Secretary of the Navy to require a shall not create any cause for relief against an
servicemember to enter a written agreement to serve otherwise valid nonjudicial, judicial, or administrative
on active duty for a specified period as a condition of proceeding, but may prevent recoupment.
that servicemember receiving advanced education
financial assistance from the Government. If the 0172 CROSS-REFERENCE TO
servicemember fails to complete, voluntarily or as a SECRETARIAL OR JAG
result of misconduct, the term of active duty service REGULATIONS IMPLEMENTING THE
specified in the agreement, the Secretary of the Navy MCM
can require that servicemember to reimburse the
United States for the cost of advanced education The following section provides a cross-reference of
assistance not repaid by active duty service as specified those provisions contained in the MCM,and the
in the written agreement. Section 2005 of title 10, U.S. sections in this Chapter or other instructions which
Code, also requires that a recipient of advanced implement those provisions.
education assistance be advised of the recoupment
possibility before the recipient submits a request for R.C.M. Implementation
voluntary separation or makes a personal decision 104(b)(2)(B) JAGINST 5803.1
regarding administrative, nonjudicial, or judicial action 106 Chapter VI
resulting from alleged misconduct. Accordingly, a 108 JAGINST 5810.2
servicemember having obligated service arising from 109 JAGINST 5803.1
receiving advanced education assistance must be 201(d)(2) 0108b, 0124
advised prior to electing to accept nonjudicial 201(f)(2)(C)(iii) 0122a
punishment or summary Courts-Martial, requesting 204(a) 0107b, 0123

1-66
304(f) SECNAVINST 1640.9A 1113(d)(2)(C) 0157b, 0169
305(f) 0127b 1114(a)(1) 0155
305(i)(2) 0127d 1114(b)(2)(A) 0155
306(c)(2) 0102-0105 1114(f) 0155
403(b)(5) 0122a 1201(b)(3)(B) 0162
404(e) 0122a 1201(c) 0158, 0159
405(c) 0122a 1203(d)(1) 0164
407(a)(5) 0122a 1206(a) 0152e
407(b) 0126 1206(b)(1) 0158, 0159
501(c) 0130d 1206(b)(2) JAGINST 5810.2
502(c) 0130a 1301(a) No implementation
502(d)(2) No implementation 1301(g) 0122a, 0133
502(e) 0130d 1302(a)(4) 0120c, 0121b
503(b) 0130a(1) 1305(a) 0150
503(c) 0130b 1305(e)(3) 0153
504(b)(1)and(2) 0120, 0121 1306(c) 0153a
504(d)(3) 0133
505(c)(1)(B)(i) 0136 Mil. R. Evid.
506(b)(1)and(2) 0131 305(d)(2) 0131
703(e)(2)(D) 0146 312(g) No implementation
703(e)(2)(G) 0147 315(d)(1) No implementation
704(c) 0138-0140 315(d)(2) No implementation
705(a) 0137 315(f)(2) No implementation
803 Discussion 0135 315(h)(2) No implementation
804(c)(2) 0127a 317(c)(2),(3) DODDIR 5505.9
807(b)(1)(A) 0130
901(e) 0135
904 Discussion 0135 Part V--NJP
908(b)(2)and(6) JAGINST 5810.2 1f(5) 0108b
910(a)(2) No implementation 2a, b, and c 0106
910(g)(1) 0135 3 0108c
1001(b)(2) 0141 5a 0111, 0112
1103(b)(1)(B) 0150b 5c(1) 0114
1103(g)(1) 0153b(2) 5c(4) and (5) 0111, 0112
1103(j) No implementation 5c(6) No implementation
1104(a)(2)(A) 0150a 5g 0113
1104(b)(l)(D) 7b 0117
(iii)(a) 0166 7f(5) 0117d
1107(a) 0151b 8 0119, 0141
1107(b)(2) 0151a(1)
1107(f)(4)(C) 0157b, 0169
1108(b)and(d) 0158a and b
1109(c)(4) 0160a
1110(g)(3) 0161
1111(a) and (b) 0153-0155
1112 0153a, 0161
1112(e)(3) 0153
1112(g)(3) 0154
1113(c)(1)and (2) 0157a and d
1113(d)(1)(A) 0157e

1-67
 NONPUNITIVE LETTER OF CAUTION

Date__________

From: Commander Service Force, U.S. Atlantic Fleet

To: Ensign _____________ L. R _______________, SC, U.S. Navy/3100

Subj: NONPUNITIVE LETTER OF CAUTION

Ref: (a) Report of investigation into discrepancies in the ship's store returns for the first quarter of
fiscal year 20__, in USS _______________ (_____)
(b) R.C.M. 306, MCM 1984
(c) JAGMAN 0105

1. Reference (a) is the record of an investigation by _______________ to inquire into certain

discrepancies in the ship's store returns for the first fiscal year 19__ in USS
_____________________.

2. [Here insert a precise statement of the relevant events and circumstances for which the letter of caution
is issued.] From the foregoing, it is apparent that you performed your duties in a careless manner. Such
carelessness contributed to the improper operation of the ship's store in
USS ________________. Accordingly, you are hereby administratively cautioned pursuant to references
(b) and (c).

3. This letter, being nonpunitive, is addressed to you as a corrective measure. It does not become a part
of your official record. You are advised, however, that in the future you will be expected to exercise
greater care in the performance of your duties in order to measure up to the high standard of performance
of duty required of all officers in the Service Force. Commander, Service Force, U.S. Atlantic Fleet,
trusts that the instructional benefit, which you will receive from the experience, will cause you to become
a more proficient naval officer.

[Signature]

FOR OFFICIAL USE ONLY (WHEN FILLED IN) A-1-a

 (CAPTAIN'S MAST) (OFFICE HOURS)
ACCUSED'S NOTIFICATION AND ELECTION OF RIGHTS
ACCUSED ATTACHED TO OR EMBARKED IN A VESSEL
(See JAGMAN 0109)

Notification and election of rights concerning the contemplated imposition of nonjudicial punishment in the case of
__________________________________, SSN ______________________, assigned or attached to
__________________________________________________.

NOTIFICATION

1. In accordance with the requirements of paragraph 4 of Part V, MCM, 1984, you are hereby notified that the
commanding officer is considering imposing nonjudicial punishment on you because of the following alleged
offenses:

(Note: Here describe the offenses, including the UCMJ article(s) allegedly violated.)

2. The allegations against you are based on the following information:

(Note: Here provide a brief summary of that information.)

3. You may request a personal appearance before the commanding officer or you may waive this right.

a. Personal appearance waived. If you waive your right to appear personally before the commanding
officer, you will have the right to submit any written matters you desire for the commanding officer's consideration
in determining whether or not you committed the offenses alleged, and, if so, in determining an appropriate
punishment. You are hereby informed that you have the right to remain silent and that anything you do submit for
consideration may be used against you in a trial by court-martial.

b. Personal appearance requested. If you exercise your right to appear personally before the commanding
officer, you shall be entitled to the following rights at the proceeding:

(1) To be informed of your rights under Article 31(b), UCMJ;

(2) To be informed of the information against you relating to the offenses alleged;

(3) To be accompanied by a spokesperson provided or arranged for by you. A spokeskperson is not

entitled to travel or similar expenses, and the proceedings will not be delayed to permit the presence of a
spokesperson. The spokesperson may speak on your behalf, but may not question witnesses except as the
commanding officer may permit as a matter of discretion. The spokesperson need not be a lawyer;

(4) To be permitted to examine documents or physical objects against you that the commanding officer has
examined in the case and on which the commanding officer intends to rely in deciding whether and how much
nonjudicial punishment to impose;

(5) To present matters in defense, extenuation, and mitigation orally, in writing, or both;

A-1-b(1)
 (6) To have witnesses attend the proceeding, including those that may be against you, if their statements
will be relevant and they are reasonably available. A witness is not reasonably available if the witness requires
reimbursement by the United States for any cost incurred in appearing, cannot appear without unduly delaying the
proceedings, or if a military witness, cannot be excused from other important duties; and

(7) To have the proceedings open to the public unless the commanding officer determines that the
proceedings should be closed for good cause. However, this does not require that special arrangements be made to
facilitate access to the proceeding.

ELECTION OF RIGHTS

4. Knowing and understanding all of my rights as set forth in paragraphs 1 through 3 above, my desires are as
follows:

a. Personal appearance. (Check one)

________ I request a personal appearance before the commanding officer.

________ I waive a personal appearance. (Check one)

________ I do not desire to submit any written matters for consideration.

________ Written matters are attached.

(Note: The accused's waiver of personal appearance does not preclude the commanding officer from
notifying the accused, in person, of the punishment imposed.)

b. Elections at personal appearance. (Check one or more)

________ I request that the following witnesses be present at my nonjudicial punishment proceeding:

________________________________

________________________________

________________________________

________________________________

________________________________

________ I request that my nonjudicial punishment proceeding be open to the public.

___________________________ _____________________________
(Signature of witness) (Signature of accused)

___________________________ _____________________________
(Name of witness) (Name of accused)

A-1-b(2)
 (CAPTAIN'S MAST) (OFFICE HOURS)
ACCUSED'S NOTIFICATION AND ELECTION OF RIGHTS
ACCUSED NOT ATTACHED TO OR EMBARKED IN A VESSEL
RECORD CANNOT BE USED IN AGGRAVATION IN EVENT OF LATER
COURT-MARTIAL UNLESS LAWYER SERVES AS PERSONAL REPRESENTATIVE
(See JAGMAN 0109)

Notification and election of rights concerning the contemplated imposition of nonjudicial punishment in the case of
__________________________________, SSN ______________________, assigned or attached to
__________________________________________________.

NOTIFICATION

1. In accordance with the requirements of paragraph 4 of Part V, MCM, 1984, you are hereby notified that the
commanding officer is considering imposing nonjudicial punishment on you because of the following alleged
offenses:

(Note: Here describe the offenses, including the UCMJ article(s) allegedly violated.)

2. The allegations against you are based on the following information:

(Note: Here provide a brief summary of that information.)

3. You have the right to refuse imposition of nonjudicial punishment. If you refuse nonjudicial punishment,
charges could be referred for trial by court-martial by summary, special, or general court-martial. If charges are
referred to trial by summary court-martial, you may not be tried by summary court-martial over your objection. If
charges are referred to a special or general court-martial you will have the right to be represented by counsel. The
maximum punishment that could be imposed if you accept nonjudicial punishment is:

______________________________________________________________________________

4. If you decide to accept nonjudicial punishment, you may request a personal appearance before the commanding
officer or you may waive this right.

a. Personal appearance waived. If you waive your right to appear personally before the commanding
officer, you will have the right to submit any written matters you desire for the commanding officer's consideration
in determining whether or not you committed the offenses alleged, and, if so, in determining an appropriate
punishment. You are hereby informed that you have the right to remain silent and that anything you do submit for
consideration may be used against you in a trial by court-martial.

b. Personal appearance requested. If you exercise your right to appear personally before the commanding
officer, you shall be entitled to the following rights at the proceeding:

(1) To be informed of your rights under Article 31(b), UCMJ;

(2) To be informed of the information against you relating to the offenses alleged;

(3) To be accompanied by a spokesperson provided or arranged for by you. A spokesperson is not entitled

A-1-c(1)
to travel or similar expenses, and the proceedings will not be delayed to permit the presence of a spokesperson. The
spokesperson may speak on your behalf, but may not question witnesses except as the commanding officer may
permit as a matter of discretion. The spokesperson need not be a lawyer;

(4) To be permitted to examine documents or physical objects against you that the commanding officer has
examined in the case and on which the commanding officer intends to rely in deciding whether and how much
nonjudicial punishment to impose;

(5) To present matters in defense, extenuation, and mitigation orally, in writing, or both;

(6) To have witnesses attend the proceeding, including those that may be against you, if their statements
will be relevant and they are reasonably available. A witness is not reasonably available if the witness requires
reimbursement by the United States for any cost incurred in appearing, cannot appear without unduly delaying the
proceedings, or if a military witness, cannot be excused from other important duties; and

(7) To have the proceedings open to the public unless the commanding officer determines that the
proceedings should be closed for good cause. However, this does not require that special arrangements be made to
facilitate access to the proceeding.

ELECTION OF RIGHTS

5. Knowing and understanding all of my rights as set forth in paragraphs 1 through 3 above, my desires are as
follows

a. Right to refuse nonjudicial punishment. (Check one)

_______ I refuse nonjudicial punishment.

_______ I accept nonjudicial punishment. I am advised that acceptance of nonjudicial punishment does
not preclude further administrative action against me. This may include being processed for an administrative
discharge which could result in an other than honorable discharge.

(Note: If the accused does not accept nonjudicial punishment, the matter should be submitted to the
commanding officer for disposition.)

b. Personal appearance. (Check one)

________ I request a personal appearance before the commanding officer.

________ I waive a personal appearance. (Check one)

________ I do not desire to submit any written matters for consideration

________ Written matters are attached.

(Note: The accused's waiver of personal appearance does not preclude the commanding officer from
notifying the accused, in person, of the punishment imposed.)

A-1-c(2)
c. Elections at personal appearance. (Check one or more)

________ I request that the following witnesses be present at my nonjudicial punishment

proceeding:

________________________________

________________________________

________________________________

________________________________

________________________________

________ I request that my nonjudicial punishment proceeding be open to the public.

___________________________ _____________________________
(Signature of witness) (Signature of accused)

___________________________ _____________________________
(Name of witness) (Name of accused)

A-1-c(3)
 (CAPTAIN'S MAST) (OFFICE HOURS)
ACCUSED'S NOTIFICATION AND ELECTION OF RIGHTS
ACCUSED NOT ATTACHED TO OR EMBARKED IN A VESSEL
RECORD MAY BE USED IN AGGRAVATION IN EVENT OF LATER COURT-MARTIAL
(See JAGMAN 0109)

Notification and election of rights concerning the contemplated imposition of nonjudicial punishment in the case of
__________________________________, SSN ______________________, assigned or attached to
__________________________________________________.

NOTIFICATION

1. In accordance with the requirements of paragraph 4 of Part V, MCM, 1984, you are hereby notified that the
commanding officer is considering imposing nonjudicial punishment on you because of the following alleged
offenses:

(Note: Here describe the offenses, including the UCMJ article(s) allegedly violated.)

2. The allegations against you are based on the following information:

(Note: Here provide a brief summary of that information.)

3. You have the right to refuse imposition of nonjudicial punishment. If you refuse nonjudicial punishment,
charges could be referred for trial by court-martial by summary, special, or general court-martial. If charges are
referred to trial by summary court-martial, you may not be tried by summary court-martial over your objection. If
charges are referred to a special or general court-martial you will have the right to be represented by counsel. The
maximum punishment that could be imposed if you accept nonjudicial punishment is:
___________________________________________________________________________________

4. If you decide to accept nonjudicial punishment, you may request a personal appearance before the commanding
officer or you may waive this right.

a. Personal appearance waived. If you waive your right to appear personally before the commanding
officer, you will have the right to submit any written matters you desire for the commanding officer's consideration
in determining whether or not you committed the offenses alleged, and, if so, in determining an appropriate
punishment. You are hereby informed that you have the right to remain silent and that anything you do submit for
consideration may be used against you in a trial by court-martial.

b. Personal appearance requested. If you exercise your right to appear personally before the commanding
officer, you shall be entitled to the following rights at the proceeding:

(1) To be informed of your rights under Article 31(b), UCMJ;

(2) To be informed of the information against you relating to the offenses alleged;

A-1-d(1)
 (3) To be accompanied by a spokesperson provided or arranged for by you. A spokesperson is
not entitled to travel or similar expenses, and the proceedings will not be delayed to permit the presence
of a spokesperson. The spokesperson may speak on your behalf, but may not question witnesses except
as the commanding officer may permit as a matter of discretion. The spokesperson need not be a lawyer;

(4) To be permitted to examine documents or physical objects against you that the commanding
officer has examined in the case and on which the commanding officer intends to rely in deciding whether
and how much nonjudicial punishment to impose;

(5) To present matters in defense, extenuation, and mitigation orally, in writing, or both;

(6) To have witnesses attend the proceeding, including those that may be against you, if their
statements will be relevant and they are reasonably available. A witness is not reasonably available if the
witness requires reimbursement by the United States for any cost incurred in appearing, cannot appear
without unduly delaying the proceedings, or if a military witness, cannot be excused from other important
duties; and

(7) To have the proceedings open to the public unless the commanding officer determines that
the proceedings should be closed for good cause. However, this does not require that special
arrangements be made to facilitate access to the proceeding.

5. In order to help you decide whether or not to demand trial by court-martial or to exercise any of the
rights explained above should you decide to accept nonjudicial punishment, you may obtain the advice of
a lawyer prior to any decision. If you wish to talk to a lawyer, a military lawyer will be made available to
you, either in person or by telephone, free of charge, or you may obtain advice from a civilian lawyer at
your own expense.

ELECTION OF RIGHTS

6. Knowing and understanding all of my rights as set forth in paragraphs 1 through 5 above, my desires
are as follows:

a. Lawyer. (Check one or more, as applicable)

______ I wish to talk to a military lawyer before completing the remainder of this form.

______ I wish to talk to a civilian lawyer before completing the remainder of this form.

______ I hereby voluntarily, knowingly, and intelligently give up my right to talk to a lawyer.

_____________________________ _____________________________
(Signature of witness) (Signature of accused)

______________________________
(Date)

A-1-d(2)
 (Note: If the accused wishes to talk to a lawyer, the remainder of this form shall not be
completed until the accused has been given a reasonable opportunity to do so.)

_____ I talked to ___________________________________ , a lawyer, on

__________________________________.

______________________________ ___________________________
(Signature of witness) (Signature of accused)

___________________________
(Date)

b. Right to refuse nonjudicial punishment. (Check one)

_______ I refuse nonjudicial punishment.

_______ I accept nonjudicial punishment. I understand that acceptance of nonjudicial

punishment does not preclude further administrative action against me. This may include being processed
for an administrative discharge which could result in an other than honorable discharge.

(Note: If the accused does not accept nonjudicial punishment, the matter should be submitted to
the commanding officer for disposition.)

c. Personal appearance. (Check one)

________ I request a personal appearance before the commanding officer.

________ I waive a personal appearance. (Check one)

________ I do not desire to submit any written matters for consideration.

________ Written matters are attached.

(Note: The accused's waiver of personal appearance does not preclude the commanding officer
from notifying the accused, in person, of the punishment imposed.)

A-1-d(3)
 d. Elections at personal appearance. (Check one or more)

________ I request that the following witnesses be present at my nonjudicial punishment

proceeding:

________________________________

________________________________

________________________________

________________________________

________________________________

________ I request that my nonjudicial punishment proceeding be open to the public.

___________________________ ____________________________________
(Signature of witness) (Signature of accused)

___________________________ ____________________________________
(Name of witness) (Name of accused)

A-1-d(4)
 CAPTAIN'S MAST/OFFICE HOURS GUIDE

(NOTE: The formalities prior to and at the termination of the captain's mast or office hours normally are
determined by custom and tradition in the Navy and Marine Corps.)

CO: You are suspected of committing the following violation(s) of the Uniform Code of Military
Justice:

_________________________________________________________

_________________________________________________________

_________________________________________________________

You do not have to make any statement regarding the offense(s) of which you are accused or
suspected and any statement made by you may be used as evidence against you.

(Note: If it is reasonably foreseeable that the accused's statements during the captain's mast/office
hours proceedings may be considered for introduction in evidence in a later court-martial, an explanation
of rights and a waiver, in the format of Appendix A-1-m of the JAG Manual, will have to be
obtained from the accused, during the hearing, before proceeding further.)

CO: You are advised that a captain's mast/office hours is not a trial and that a determination of
misconduct on your part is not a conviction by a court. Further, you are advised that the formal
rules of evidence used in trials by court-martial do not apply at captain's mast/office hours.

CO: I have a statement signed by you acknowledging that you were fully advised of your legal rights
pertaining at this hearing. (Note: This statement will be either JAGMAN Appendix A-1-b, A-1-
c, or A-1-d.)

CO: Do you understand this statement and do you understand the rights explained therein?

ACC: _________________________________________________________.

CO: Do you have any questions about them or do you wish to make and requests?

ACC: _________________________________________________________.

_________________________________________________________.

CO: [To witness (if any are present)] What can you tell me about the accused's involvement in (these)
(this) offense(s)?

WIT: _____________________________________________________________________.
OR

A-1-e(1)
CO: [To witness(es) who has/have previously provided written statement(s) when accused and CO
both have copies of the statement(s).] Do you adopt your statement(s) as your testimony here
today?

WIT: ________________________________________________________ .

CO: Do you have anything to add to or change in your statement?

WIT: _________________________________________________________ .

CO: (To accused) Would you like me to ask any further questions of this witness?

ACC: _________________________________________________________.

CO: (After all witnesses are questioned) I have before me the following (documents) (statements)
(other physical evidence) that will be considered by me. Have you been given the opportunity to
examine them?

ACC: _________________________________________________________.

CO: (If the answer is "no," offer the accused the opportunity to examine the evidence.)

CO: Is there anything that you wish to offer? (If the answer is "yes," permit the accused the
opportunity to call his witnesses, make a personal statement in defense, and present other
evidence.)

ACC: _________________________________________________________.

CO: Are there any other witnesses you would like to call or any other evidence you would like to
present?

ACC: _________________________________________________________.

CO: Is there anything that you wish to offer that would lessen the seriousness of (this) (these)
offense(s) or mitigate them?

ACC: _________________________________________________________.

CO: (To witness) What can you tell me about (accused's name) performance of duty?

WIT: _________________________________________________________.

A-1-e(2)
CO: (To accused) Is there anything else you would like to present?

ACC: _________________________________________________________.

CO: I impose the following punishment:

_________________________________________________________ .

My decision to impose this punishment was based on my determination that you committed the
minor offenses of:

_______________________________________________________.

You are advised that you have the right to appeal this punishment to (identify the superior
authority by name and organizational title). Your appeal must be made within a reasonable time--
which is normally 5 days. Following this hearing, __________________ will advise you more
fully of this right to appeal. Do you understand?

ACC: _________________________________________________________.

CO: You are dismissed.

A-1-e(3)
 (CAPTAIN'S MAST) (OFFICE HOURS)
ACCUSED'S ACKNOWLEDGEMENT OF APPEAL RIGHTS

(CAPTAIN'S MAST) (OFFICE HOURS) ACCUSED'S ACKNOWLEDGEMENT

OF APPEAL RIGHTS

I, _______________________________________, SSN _____________________________,

(Name and grade of accused)

assigned or attached to ____________________, have been informed of the following facts concerning
my rights of appeal as a result of (captain's mast) (office hours) held on ______________________:

a. I have the right to appeal to (specify to whom the appeal should be addressed).

b. My appeal must be submitted within a reasonable time. Five working days, excluding weekends
and holidays, after the punishment is imposed is normally considered a reasonable time, in the absence of
unusual circumstances. Any appeal submitted thereafter may be rejected as not timely. If there are
unusual circumstances which I believe will make it extremely difficult or not practical to submit an appeal
within 5 working days, I should immediately advise the officer imposing punishment of such
circumstances, and request an appropriate extension of time which to file my appeal.

c. The appeal must be in writing.

d. There are only two grounds for appeal; that is:

(1) The punishment was unjust, or

(2) The punishment was disproportionate to the offense(s) for which it was imposed.

e. If the punishment imposed included reduction from the pay grade of E-4 or above, or was in excess
of: arrest in quarters for 7 days, correctional custody for 7 days, forfeiture of 7 days' pay, extra duties for
14 days, restriction for 14 days, then the appeal must be referred to a military lawyer for consideration
and advice before action is taken on my appeal.

_____________________________________ _______________________________________
(Signature of Accused and Date) (Signature of Witness and Date)

A-1-f
 PUNITIVE LETTER OF REPRIMAND

Date _______________

From: Commander Cruiser-Destroyer Force, U.S. Atlantic Fleet

To: Lieutenant J__________ T.V______________, U.S. Navy, ___________/1100
Via: (1)
(2)

Subj: PUNITIVE LETTER OF REPRIMAND

Ref: (a) Report of investigation of collision between USS ________________ (_______), and SS
________________, which occurred, on __________ April 20____
(b) UCMJ Art. 15
(c) Para. 5 of Part V, MCM 1984
(d) JAGMAN 0114

1. Reference (a) is the record of an investigation convened by Commander Cruiser-Destroyer Force, U.S.
Atlantic Fleet, to inquire into the collision between USS ________________ (_____) and SS
_______________ on ___________ April 20_____. The collision occurred in the Atlantic Ocean about
60 miles east of Norfolk, Virginia. You were a party to the investigation and were accorded your rights
as such. [As applicable, except in the case of a member attached to or embarked in a vessel, add: You
have been advised that you have the right to refuse imposition of nonjudicial punishment and you have
elected to accept nonjudicial punishment.]

2. [Here insert a precise statement of all relevant events and circumstances of the offense or offenses in
violation of an article or articles of the Uniform Code of Military Justice for which the letter of reprimand
is issued.]

3. Your actions clearly show that you were derelict in the performance of your duties as Officer of the
Deck, USS ______________, on the morning of _______ April 20____ in that you negligently failed to:

a. Maintain USS ___________ on a safe course as required by U.S. Navy Regulations, 1990.

b. Employ all means and devices available to you for detecting and avoiding danger from
collision as required by USS _________________ Standing Night Orders and U.S. Navy Regulations,
1990.

c. Inform your commanding officer when you made a course and speed change at about 6
minutes before the collision as required by U.S. Navy Regulations, 1990.

FOR OFFICIAL USE ONLY (WHEN FILLED IN)

A-1-g(1)
4. Pursuant to references (b), (c), and (d) you are hereby reprimanded for your negligence in the
performance of duty as set forth above.

[Here insert final paragraphs prescribed by 0114f(3)(d).]

[Signature]

FOR OFFICIAL USE ONLY (WHEN FILLED IN)

A-1-g(2)
 MEMORANDUM OF PRETRIAL AGREEMENT
GENERAL AND SPECIAL COURTS-MARTIAL
(See JAGMAN 0137)

MEMORANDUM OF PRETRIAL AGREEMENT

UNITED STATES Place_________________________

v. Date___________

______________ ________________ __________________

Name Rate/Grade SSN

I, ____________________, the accused in a _________ court-martial, do hereby certify:

That, for good consideration and after consultation with my counsel, I do agree to enter a voluntary
plea of GUILTY to the charges and specifications listed below, provided the sentence as approved by the
convening authority will not exceed the sentence hereinafter indicated by me;

That it is expressly understood that, for the purpose of this agreement, the sentence is considered to be
in these parts, namely: the punitive discharge, period of confinement or restraint, amount of forfeiture or fine,
and reduction in rate or grade;

That should the court award a sentence which is less, or a part thereof is less, than that set forth and
approved in the agreement, then the convening authority, according to law, will only approve the lesser
sentence;

That I am satisfied with my defense counsel in all respects and consider him qualified to represent me
in this court-martial;

That this offer to plead guilty originated with me and my counsel; that no person or persons
whomsoever have made any attempt to force or coerce me into making this offer or pleading guilty;

That my counsel has fully advised me of the meaning and effect of my guilty plea and that I fully
understand and comprehend the meaning thereof and all of its attendant effects and consequences, including
the possibility that I may be processed for an administrative discharge, even if part of all of the sentence,
including a punitive discharge, is suspended or disapproved pursuant to this agreement;

That I understand that I may ask permission to withdraw my plea of guilty at any time before sentence
is announced, and that the military judge may, at his discretion, permit me to do so; and

That I understand this offer and agreement and have been advised that it cannot be used against me in
the determination of my guilt on any matters arising from the charges and specifications made against me in
this court-martial.

That it is expressly understood that the pretrial agreement will become null and void in
the event: (1) I fail to plead guilty to each of the charges and specifications set forth below, (2)

A-1-h(1)
the court refuses to accept my plea of guilty to any of the charges and specifications set forth
below, (3) the court accepts each of my pleas but, prior to the time sentence is announced, I ask
permission to withdraw any of my pleas, and the court permits me to do so, and (4) the court
initially accepts my plea of guilty to each of the charges and specifications set forth below but,
prior to the time the sentence is adjudged, the court sets aside any of my guilty pleas and enters a
plea of not guilty on my behalf.

CHARGES PREFERRED: GUILTY PLEA BY ACCUSED TO:

Article # Description Article # Description

1.

2.

3.

MAXIMUM SENTENCE TO BE APPROVED BY CONVENING AUTHORITY

See maximum sentence appendix to memorandum of pretrial agreement.

Signed:______________________________
Name of accused/Date and Place

Witness: __________________ [Defense counsel, date, and place;

__________________ Statement of qualification where

__________________ appropriate]

Witness: __________________ [Name, date, and place; statement of

__________________ qualification of additional defense

__________________ counsel, when used]

The foregoing agreement is [approved] [disapproved].

__________________________________
Signature, grade, and title of
convening authority

A-1-h(2)
 MAXIMUM SENTENCE APPENDIX TO
MEMORANDUM OF PRETRIAL AGREEMENT

UNITED STATES Place_________________________

v. Date___________

______________ ________________ __________________

Name Rate/Grade SSN

Maximum Sentence to be approved by Convening Authority:

1. Punitive Discharge [character of and, if on probation, term thereof]

2. Confinement or Restraint [amount and kind]

3. Forfeiture or fine [amount and duration]

4. Reduction to [rate or grade]

Signed: _________________________________
Name of accused, date, and place

Witness: ____________________________ [Defense counsel, date, and place]

Witness: ____________________________ [Name, date, and place]

A-1-h(3)
 ORDER TO TESTIFY
(See JAGMAN 0138)

IN THE MATTER OF

__________________________________________ )
(Accused's Name) ) GRANT OF TRANSACTIONAL
) IMMUNITY
__________________________________________ )
(Rate) (Unit) )
)
__________________________________________ )
(Armed Force)

To: (Witness to whom immunity is to be granted)

1. It appears that you are a material witness for the Government in the matter of [set forth a full
identification of the accused and, if charges have been preferred, the substance of all specifications
preferred.]

2. In consideration of your testimony as a witness in the matter described in paragraph (1), you are
hereby granted immunity from prosecution for any offense connected with the offenses(s) described in
paragraph (1) about which you testify under oath.

3. It is understood that this grant of immunity from prosecution is effective only upon the condition that
you actually testify as a witness. It is further understood that this grant of immunity from prosecution
extends only to the offense or offenses described in paragraph (1) in which you were implicated and about
which you testify under oath, and does not extend to prosecution for perjury, giving a false statement, or
otherwise failing to comply with an order to testify in this matter.

4. This grant of immunity is made under the authority granted me under Rule for Courts-Martial 704,
Manual for Courts-Martial, 1984, as a General Courts-Martial Convening Authority.

__________________________________________
Signature

__________________________________________
Grade, title

A-1-i(1)
IN THE MATTER OF

__________________________________________ )
(Accused's Name) ) GRANT OF TESTIMONIAL
) IMMUNITY
__________________________________________ )
(Rate) (Unit) )
)
__________________________________________ )
(Armed Force)

To: (Witness to whom immunity is to be granted)

1. It appears that you are a material witness for the Government in the matter of [set forth a full
identification of the accused and, if charges have been preferred, the substance of all specifications
preferred.]

2. In consideration of your testimony as a witness in the matter described in paragraph (1), you are
hereby granted immunity from the use of your testimony or other information given by you (including
any evidence directly or indirectly derived from your testimony or from the other information you pro-
vide) against you in any criminal case, except a prosecution for perjury, giving a false statement, or
otherwise failing to comply with an order to testify in this matter.

3. It is understood that this grant of immunity from the use of your

testimony or other information given by you (including any evidence directly or indirectly derived from
your testimony or from the other information you provide) against you in any criminal case is effective
only upon the condition that you testify under oath as a witness in the matter described in paragraph (1).

4. This grant of immunity is made under the authority granted me under Rule for Courts-Martial 704,
Manual for Courts-Martial, 1984, as a General Courts-Martial Convening Authority.

__________________________________________
Signature

__________________________________________
Grade, title

A-1-i(2)
ORDER TO TESTIFY

IN THE MATTER OF__________________________)

_____________________________________________) ORDER TO TESTIFY

_____________________________________________)

_____________________________________________)

________________________

________________________

________________________

To: (Witness to whom immunity is to be granted)

1. As an officer empowered to convene general courts-martial and pursuant to the provision of sections
6002 and 6004, title 18, United States Code, I hereby make the following findings:

a. That (name of witness) possesses information relevant to the pending trial by general court-
martial of _____________________, and that the presentation of his testimony at this trial necessary to
the public interest; and

b. That it is likely that (Name of witness) would refuse to testify on the basis of his privilege
against self-incrimination if subpoenaed to appear as a witness.

2. On the basis of these facts, and pursuant to section 6004, title 18, United States Code, I hereby order
(Name of witness) to appear and testify before the general court-martial convened for the trial of
_____________________. In accordance with section 6002, title 18, United States Code, no testimony
or other information given by (Name of witness) (or any information directly or indirectly derived from
such testimony or other information) can be used against him in any criminal case, except a prosecution
for perjury, giving a false statement, or otherwise failing to comply with this order.

3. This order is issued with the approval of the Attorney General of the United States set forth in
enclosure 1 annexed hereto.

__________________________________________
Signature

__________________________________________
Grade, title

A-1-i(3)
 PRIVACY ACT NOTIFICATION

Authority: 18 U.S.C. § 6004, Executive Order 12473, R.C.M. 704, Manual for Courts-Martial, 1984

Principal Purpose: The requested information will be provided to law enforcement agencies in order to
expedite review of this request for immunity, and is requested for the purpose of allowing those agencies
the opportunity to review the propriety of granting immunity to you in this case.

Routine Use: This information will be provided to law enforcement agencies, both State and Federal, in
the performance of their duties under law to review this request for immunity.

Disclosure is Voluntary: Your provision of this information is voluntary, however, your failure to
provide the requested information may result in delay or denial of the granting of immunity to you in this
case.

________________________ _____________________
Signature Date

________________________
Witness

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 REPORT OF RESULTS OF TRIAL

From:

Subj: REPORT OF RESULTS OF TRIAL

1. Pursuant to R.C.M. 1101(a) and 1304(b)(2)(f)(v), MCM, notification is hereby given in the case of United
States v. [RANK] [FIRST] [LAST] [SSN], a trial by [GENERAL] [SPECIAL] courts-martial occurring at
[LOCATION], convened by [COMMAND] [UIC].

2. Offenses, pleas, and findings:

a. Charges & Specifications / Pleas & Findings

(with description of offense(s), including whether convicted of lesser included offenses)

b. Any preferred charge withdrawn before or at trial: __NO __YES (include a brief description):
________________________________________________________________________________________
________________________________________________________________________________________
__________________________________________________________

c. Partial acquittal based on mental incompetence: __NO __YES (include a brief description of offenses
charged):
________________________________________________________________________________________
________________________________________________________________________________________
__________________________________________________________

Note: If an accused is found incompetent to stand trial or not guilty of all charges and specifications by reason
of lack of mental responsibility and a Report of Results of Trial would not otherwise be completed then the
trial counsel must inform the Navy-Marine Corps Appellate Review Activity (Code 40), 716 Sicard Street, SE,
Suite 1000, Washington Navy Yard, DC 20374-5047.

3. Forum: Judge alone ______ Members _____ Enlisted Members ______

4. Sentence adjudged (if specific sentence provision does not apply indicate "NA"):

Discharge (Dismissal, DD, BCD)

Confinement

Hard Labor w/out confinement

Reduction

Forfeiture

Reprimand

Other

5. Date sentence adjudged: _______________. Adjudged forfeitures, adjudged reduction in grade, and
automatic forfeitures, if any, become effective _________________ (14 days after date sentence was
announced) unless indicated otherwise in paragraph 8, below, or unless written notice of deferment by the
convening authority is received by authorities with responsibility for the accused's service and pay records.
Absent pertinent direction to the contrary in paragraph 8, below, or such written notice of deferment, action by
those authorities in this case giving effect to the adjudged and automatic sentence, when applicable, must
occur by the second date in this paragraph. Trial counsel must be provided the originals of such written
approved deferments for inclusion in the record of trial (R.C.M. 1103).

6. Automatic forfeitures apply: Yes _________ No_________

See paragraph 8, below, for the specific sentence to be given effect in this case, consistent with paragraph 5,
above.

a. GCM _____ (forfeiture of all pay and allowances while confined)

b. SPCM _____ (2/3 pay while confined)

7. Credits to be applied to confinement, if any:

a. Pretrial Confinement: ____________ days (see note below)

b. Judicially-ordered credits: ____________ days

Total credits: ____________ days

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8. Terms of pretrial agreement concerning sentence, if any (YES/NO response only):

MJ alone: Confinement limitation:

Non-capital referral: Forfeiture limitation:

Restitution: Reduction in grade limitation:

Referral to lower forum: Allotment to family:

Cooperation: Allotment to victim:

Deferment of confinement: Other: (brief description)

9. Upon convening authority's action in this case, sex offender notifications may be required per
42 U.S.C. § 14071: _______ No _________ Yes

See DODINST 1325.7, 'Administration of Military Correctional Facilities and Clemency and Parole
Authority,' July 17, 2002, Enclosure 27 for a list of offenses requiring sex offender notifications.

Signed:
Trial Counsel

Distribution:
Convening Authority
Commanding officer of accused
CO/OIC of brig (if confinement adjudged)
PDS/Unit Diary Clerk
Disbursing Office
Record of trial
Officer exercising general courts-martial jurisdiction

[Note: Each day of pretrial confinement shall be counted as a day of pretrial confinement, except that, if the
sentence includes confinement, the day on which sentence is announced shall not be counted as a day of
pretrial confinement. Notwithstanding the foregoing, authorities responsible for sentence computation will
count the day of sentencing as a day of pretrial confinement, when the accused was in pretrial confinement on
the day that a sentence including confinement was announced and, for any reason (e.g., immediate deferment),
that day does not count towards service of the sentence to confinement.]

A-1-j(3)
 CONVENING AUTHORITY ACTION RECOMMENDATION

From: Legal Officer/Staff Judge Advocate

To: Commanding Officer, _________________________________

Subj: RECOMMENDATION IN THE SPECIAL/GENERAL COURT-MARTIAL CASE OF

_________________________________________

Ref: (a) R.C.M. 1106, MCM, 1984

(b) JAGMAN 0151c

Encl: (1) As appropriate

1. Pursuant to references (a) and (b) the following information is provided:

a. Offenses, pleas, and findings:

Charges and specifications Pleas Findings

b. Sentence adjudged:

c. Clemency recommendation by court or military judge:

d. Summary of accused's service record:

(1) Length of service;

(2) Character of service (average pros and cons, average of evaluation traits);

(3) Awards and decorations;

(4) Records of prior nonjudicial punishment;

(5) Previous convictions; and

(6) Other matters of significance.

e. Nature and duration of pretrial restraint:

f. Judicially-ordered credit to be applied to confinement, if any:

` A-1-k(1)
 g. Terms and conditions of pretrial agreement (if any) which the convening authority is obligated
to honor or reasons why the convening authority is not obligated to take specific action under the
agreement:

h. Optional information--any recommendations for clemency (from division officer, company

commander, immediate supervisor, etc.) or any other matters which are deemed appropriate. (Note: If
any matters adverse to the accused are presented to the CA from outside the record of trial, with
knowledge of which the accused is not chargeable, the accused shall be notified and be given an
opportunity to rebut.)

2. For staff judge advocate only: State whether corrective action on the findings or sentence is
appropriate base upon allegations of error raised by the accused after sentence is adjudged, or when
otherwise deemed appropriate by the staff judge advocate. See R.C.M. 1106(d)(4), MCM, 1984.

3. A specific recommendation as to the action to be taken by the convening authority on the sentence.

A-1-k(2)
 REQUEST FOR IMMEDIATE EXECUTION OF DISCHARGE
(See JAGMAN 0165)

UNITED STATES ) [SPCM [GCM] NCM _____________________

) REQUEST FOR IMMEDIATE EXECUTION
v. ) OF [BAD CONDUCT][DISHONORABLE]
) DISCHARGE ADJUDGED ON _____________
[Name, SSN, grade or ) BY [SPECIAL] [GENERAL] COURT-MARTIAL
rate and armed service] ) CONVENED BY ________________________
) [AT] [ON BOARD] ______________________

To: [Officer exercising general court-martial jurisdiction]

1. I, the undersigned, the accused in the above-captioned case, hereby request the immediate execution of
the above-described __________________________________________________ discharge and
[dishonorable] [bad conduct] my release from the naval service.

2. Naval Clemency and Parole Board review pursuant to SECNAV Instruction 5815.3G [has been
completed] [is not required].

3. I received a copy of the decision of the U.S. Navy-Marine Corps Court of Military Review in my case
on ______________________________________.

4. I have had fully explained to me and I understand my right, under Article 67(c), Uniform Code of
Military Justice, to petition the U.S. Court of Military Appeals for grant of review within 60 days from
the date I received my copy of the decision of the U.S. Navy-Marine Corps Court of Military Review.

5. I do not have an appeal pending before the U.S. Court of Military Appeals at this time, nor do I now
intend to appeal; however, I understand that, if this request is granted, it will not affect my right to appeal
if I later change my mind and decide to appeal.

6. I have discussed this matter with ___________________________ (Name, grade, SSN) counsel of my
own choice.

___________________________
Signature of Accused

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 CERTIFICATE

I, the undersigned officer of the grade, Social Security number, and branch of service below
stated, certify that the above-named accused personally appeared before me this _____ day of
__________, 20___, at ___________________[place]; I explained to him his right, under Article 67(c),
Uniform Code of Military Justice, to petition the U.S. Court of Military Appeals for grant of review; I
read aloud to him the foregoing request; and he thereafter signed the same in my presence and
acknowledged that he did so as his free and voluntary act.

____________________________
Signature

____________________________
Name, grade, SSN

A-1-l(2)
 SUSPECT'S RIGHTS ACKNOWLEDGEMENT/STATEMENT (See JAGMAN 0170)

SUSPECT'S RIGHTS AND ACKNOWLEDGEMENT/STATEMENT

•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
FULL NAME (ACCUSED/•SSN •RATE/RANK •SERVICE(BRANCH)
SUSPECT)• • •
• • •
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
ACTIVITY/UNIT •DATE OF BIRTH
•
•
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
NAME (INTERVIEWER) •SSN •RATE/RANK•SERVICE(BRANCH)
• • •
• • •
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
ORGANIZATION •BILLET
•
•
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
LOCATION OF INTERVIEW •TIME •DATE
• •
• •
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••

RIGHTS
I certify and acknowledge by my signature and initials set forth below
that, before the interviewer requested a statement from me, he warned
me that:

(1) I am suspected of having committed the following

offense(s);______________________________________________________

_________________________________________________________________
••••••••
________________________________________________________ ••••••••

••••••••
(2) I have the right to remain silent; ----------- ••••••••

(3) Any statement I do make may be used as evidence against me in

trial by court-martial; ••••••••
-------------------------------------------------------- ••••••••

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 (4) I have the right to consult with lawyer counsel prior to any
questioning. This lawyer counsel may be a civilian lawyer retained by me at my
own expense, a military lawyer appointed to act as my counsel without cost to
me, or both; and
••••••••
------------------------------------------------------- ••••••••

(5) I have the right to have such retained civilian lawyer and/or
appointed military lawyer present during this interview,
••••••••
------------------------------------------------------- ••••••••

(6) If I decide to answer questions now without a lawyer present,

I will have the right to stop this interview at any time.
••••••••
------------------------------------------------------- ••••••••

WAIVER OF RIGHTS
I further certify and acknowledge that I have read the above statement
of my rights and fully understand them, and ••••••••
that, ------------------------------------------------- ••••••••

(1) I expressly desire to waive my right to remain ••••••••

silent; ------------------------------------------------ ••••••••
••••••••
(2) I expressly desire to make a statement; ------ ••••••••

(3) I expressly do not desire to consult with

either a civilian lawyer retained by me or a military lawyer appointed
as my counsel without cost to me prior to any ••••••••
questioning; ------------------------------------------- ••••••••
(4) I expressly do not desire to have such a lawyer ••••••••
present with me during this interview; and ------------- ••••••••
(5) This acknowledgement and waiver of rights is made freely and
voluntarily by me, and without any promises or threats having been
made to me or pressure or coercion of any ••••••••
kind having been used against me. ---------------------- ••••••••

(6) I further understand that, even though I initially waive my

rights to counsel and to remain silent, I may, during the interview,
assert my right to counsel or to remain silent. --------- ••••••••
••••••••

A-1-m(2)
NOTE: IF THE SUSPECT INDICATES HE IS WILLING TO MAKE A STATEMENT, HE
SHOULD FIRST BE ASKED WHETHER HE HAS MADE A STATEMENT IN RESPONSE TO
QUESTIONS ABOUT THE SUSPECTED OFFENSE TO ANYONE HE BELIEVED WAS ACTING
IN A LAW ENFORCEMENT CAPACITY PRIOR TO THE PRESENT INTERVIEW. IF THE
SUSPECT INDICATES HE HAS PREVIOUSLY MADE SUCH A STATEMENT, ADVISE THE
SUSPECT AS FOLLOWS:

(1) Your previous statement may not be admissible at courts-

martial and may not be usable against you. (It may not be possible to
determine whether a previous statement made by the suspect will be
admissible at some future court-martial; this suggests it may be wise
to treat it as inadmissible and provide the cleansing warning).

(2) Regardless of the fact that you have talked about this
offense before, you still have the right to remain silent now.
(3) (Continue with the Rights Advisement and Waiver of Rights
above.)

•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
SIGNATURE (ACCUSED/SUSPECT) •TIME •DATE
• •
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
SIGNATURE (INTERVIEWER) •TIME •DATE
• •
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
SIGNATURE (WITNESS) •TIME •DATE
• •
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
The statement which appears on this page (and the following
_____page(s), all of which are signed by me), is made freely and
voluntarily by me, and without any promises or threats having been
made to me or pressure or coercion of any kind having been used
against me.
________________________________
SIGNATURE (ACCUSED/SUSPECT)

_________________________________________________________________
_________________________________________________________________

_________________________________________________________________

A-1-m(3)
 RECORD OF AUTHORIZATION FOR SEARCH
(see JAGMAN 0170)

RECORD OF AUTHORIZATION FOR SEARCH

1. At ___________ [time] on ___________________ [date] I was approached by

__________________ [name] in his capacity as ___________________ [duty] who having been first
duly sworn, advised me that he suspected _________________________ [name] of
_______________________ [offense] and requested permission to search his
__________________________ [object or place] for ______________________ [items].

2. The reasons given to me for suspecting the above named person were:

____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
______________________________

3. After carefully weighing the foregoing information, I was of the belief that the crime of
_________________________ [had been] [was being] [was about to be] committed, that __________
was the likely perpetrator thereof, that a search of the object or area stated above would probably produce
the items stated and that such items were [the fruits of crime] [the instrumentalities of a crime]
[contraband] [evidence].

4. I have therefore authorized _______________________________ to search the place named for the
property specified, and if the property be found there, to seize it.

_____________________________________________________________________________
Grade Signature Title

______________________________________
Date and Time

INSTRUCTIONS

1. Although the person bringing the information to the attention of the individual empowered to
authorize the search will normally be one in the execution of investigative or police duties, such need not
be the case. The information may come from one as a private individual.

2. Other than his own prior knowledge of facts relevant thereto, all information considered by the

A-1-n(1)
individual empowered to authorize a search on the issue of probable cause must be provided under oath or
affirmation. Accordingly, prior to receiving the information which purports to establish the requisite
probable cause, the individual empowered to authorize the search will administer an oath to the person(s)
providing the information. An example of an oath is as follows: Do you solemnly swear (or affirm) that
the information you are about to provide is true to the best of your knowledge and belief, so help you
God? (This requirement does not apply when all information considered by the individual empowered to
authorize the search, other than his prior personal knowledge, consists of affidavits or other statements
previously duly sworn to before another official empowered to administer oaths.)

3. The area or place to be searched must be specific, such as wall locker, wall locker and locker box,
residence, or automobile.

4. A search may be authorized only for the seizure of certain classes of items: (1) fruits of a crime (the
results of a crime such as stolen objects); (2) instrumentalities of a crime (example: search of an
automobile for a crowbar used to force entrance into a building which was burglarized); (3) contraband
(items, the mere possession of which is against the law--marijuana, etc.); or (4) evidence of crime
(example: bloodstained clothing of an assault suspect).

5. Before authorizing a search, probable cause must exist. This means reliable information that would
lead a reasonably prudent and cautious man to a natural belief that:

a. An offense probably is about to be, or has been committed;

b. Specific fruits or instrumentalities of the crime, contraband or evidence of the crime exist; and

c. Such fruits, instrumentalities, contraband, or evidence are probably in a certain place.

In arriving at the above determination it is generally permissible to rely on hearsay information,

particularly if it is reasonably corroborated or has been verified in some substantial part by other facts or
circumstances. However, unreliable hearsay cannot alone constitute probable cause, such as where the
hearsay is several times removed from its source or the information is received from an anonymous
telephone call. Hearsay information from an informant may be considered if the information is
reasonably corroborated or has been verified in some substantial part by other facts, circumstances, or
events. The mere opinion of another that probable cause exists is not sufficient; however, along with the
pertinent facts, it may be considered in reaching the conclusion as to whether or not probable cause exists.
If the information available does not satisfy the foregoing, additional investigation to produce the
necessary information may be ordered.

A-1-n(2)
 CONSENT TO SEARCH
(See JAGMAN 0170)

CONSENT TO SEARCH

I, ____________________________, have been advised that inquiry is being made in connection with
_______________________________________________________________________. I have been
advised of my right not to consent to a search of [my person] [the premises mentioned below]. I hereby
authorize_________________________________ and ________________________, who [has] [have
been] identified to me as _________________________________________ [position(s)] to conduct a
complete search of my [person] [residence] [automobile] [wall locker] [__________] [__________]
located at _________________________________________________________.

I authorize the above listed personnel to take from the area searched any letters, papers, materials, or other
property which they may desire. This search may be conducted on ______________ [date].

This written permission is being given by me to the above named personnel voluntarily and without
threats or promises of any kind.

______________________________
Signature
WITNESSES
________________________________________
________________________________________

A-1-o
 REPORT OF SUMMARY COURT-MARTIAL

Instruction: The following information shall be attached to the SCM record of trial (use of DD Form
2329 is not required, but is strongly recommended because it fulfills the requirements of R.C.M. 1305).

1. Location, date(s) conducted, persons present (with title and role, e.g., witness, accused, Summary
Court-Martial, etc.) and findings.

2. List of documents attached to report of summary court-martial. Including:

a. Convening order

b. Charge sheet

c. Documents and physical evidence, where practicable

d. Acknowledgement of rights advisory, including waiver of right to refuse summary court-martial.

3. Summary of evidence on the merits (required for each charge and specification of which the accused is
found guilty contrary to his/her plea):

a. Pleas

b. Offense of which convicted

c. Evidence supporting guilt

(1) Witness testimony

(2) Documents presented (notation as to whether admitted or denied, description if not attached)

(3) Other physical evidence (notation as to whether admitted or denied, description if not attached)

(4) Stipulations

(5) Other

d. Evidence supporting defense:

(1) Testimony of accused

(2) Witness testimony

(3) Documents presented (notation as to whether admitted or denied, description if not attached).

(4) Other physical evidence (notation as to whether admitted or denied, description if not attached)

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 (5) Stipulations

(6) Any other matters submitted by the defense.

4. Matters submitted in aggravation, and extenuation and mitigation:

a. Matters in aggravation

(1) Documents presented (notation as to whether admitted or denied, description if not attached)

(2) Witness(es) testimony

(3) Any other matters

b. Matters in extenuation and mitigation:

(1) Statement of accused

(2) Documents presented (notation as to whether admitted or denied, description if not attached)

(3) Witness(es) testimony

(4) Any other matter submitted by the defense.

5. Sentence adjudged.

6. Clemency or suspension recommendation.

A-1-p(2)
 OFFICER NJP REPORT
(see JAGMAN 0119)
LETTERHEAD

1621
17
[Date]

From: Commanding General, 1st Marine Aircraft Wing

To: Commandant of the Marine Corps (JAM)
Via: (1) Commanding General, III Marine Expeditionary Force
(2) Commanding General, Fleet Marine Force Pacific

Subj: REPORT OF NONJUDICIAL PUNISHMENT IN THE CASE OF FIRST

LIEUTENANT JOHN J. JONES 123 45 6789/1369 USMC

Ref: (a) MCO P5800.8B (LEGADMINMAN)

(b) FMFPAC2O 5810.1L
(c) Art. 15 UCMJ
(d) Part V, MCM
(e) Chp. 1, Part B, JAG Manual
(f) Article 1122, U.S. Navy Regulation, (1990)

Encl: (1) Record of Hearing under Article 15, UCMJ

(2) Punitive Letter of Reprimand
(3) 1stLT Jones' ltr 1621 17 of [date]
(4) 1stLT Jones' statement regarding adverse matter

1. This report is forwarded for inclusion on 1stLt Jones' official records per paragraph 4003 of reference
(a) via intermediate commanders, as directed by paragraph 3d(2) of reference (b).

2. On 4 December 1990, in accordance with references (c), (d), and (e), nonjudicial punishment was
imposed on 1stLt Jones for conduct unbecoming an officer. As a result, he was awarded a punitive letter
of reprimand and a forfeiture of $400.00 pay per month for two months.

3. Details of the hearing and the circumstances of the offenses are set forth in enclosure (1). A copy of
the punitive letter of reprimand is attached as enclosure (2).

4. As reflected in enclosure (3), 1stLt Jones did not appeal the punishment. Accordingly, the NJP is now
final and will be reflected in the fitness report that includes the date it was imposed, 4 December 1990.

Appendix A-1-q(1)
FOR OFFICIAL USE ONLY
Subj: REPORT OF NONJUDICIAL PUNISHMENT IN THE CASE OF FIRST LIEUTENANT JOHN
J. JONES 123 45 6789/1369 USMC

5. I recommend that 1stLt Jones be retained on active duty until the expiration of his obligated active
service.

6. By copy hereof, 1stLT Jones is notified of his right, per reference (f), to submit his comments, within
15 days of receipt, concerning this report of nonjudicial punishment and the letter of reprimand which
will be included as adverse matter in his official records. His comments, if any, will be attached as
enclosure (4).

Copy to:
CO, MAG-32
CO, MALS-32
1stLT Jones

_____________________________________________________________________________

SAMPLE FIRST ENDORSEMENT

FIRST ENDORSEMENT on CG, 1stMAW ltr 1621 17 of [DATE}

From: Commanding Office, Marine Wing Aircraft Squadron 1

To: First Lieutenant John J. Jones 123 45 5678/1369 USMC

Subj: PUNITIVE LETTER OF REPRIMAND

1. Delivered.

By direction

Appendix A-1-q(2)
FOR OFFICIAL USE ONLY
 ACKNOWLEDGEMENT OF ADVANCED EDUCATION
ASSISTANCE REIMBURSEMENT

I understand that, in accordance with 10 U.S.C. § 2005, I may be required to reimburse the United States
for the cost of advanced education assistance provided to me by the Government if I voluntarily or as a
result of misconduct fail to complete the required period of active duty service specified in the written
agreement I entered into with the United States prior to accepting advanced education assistance.

______________________
Signature

______________________
Date

______________________
Witness

A-1-r(1)
 CHAPTER II
ADMINISTRATIVE INVESTIGATIONS

PART A -- OVERVIEW AND SCOPE 0208 TYPE ONE: COMMAND

INVESTIGATIONS
0201 CONSTRUCTION
a. Purpose
0202 SCOPE b. Use Limitations
c. Responsibilities
a. General d. Convening Order
b. Relation to UCMJ investigations e. Method
c. Relation to other investigations f. Time Limitations
d. Coordination with law enforcement g. Action
investigations h. Review
e. Access to reports of investigations
0209 TYPE TWO: LITIGATION-
PART B -- PRELIMINARY REPORT INVESTIGATIONS
CONSIDERATIONS
a. Purpose
0203 PRELIMINARY INQUIRY b. Comparison with Command Investigations
c. Responsibilities
a. Purpose d. Convening Order
b. Responsibility e. Method
c. Method f. Time Limitations
d. Preliminary inquires into incidents involving g. Action
potential claims or litigation h. Review
e. Time limitations
f. Major incidents 0210 TYPE THREE: COURTS AND
g. Action BOARDS OF INQUIRY
h. Review
a. Overview
0204 COMMAND OPTIONS b. Courts of Inquiry characteristics
c. Boards of Inquiry characteristics
a. Options d. Advisors and non-voting members
b. Analyzing the options e. Responsibilities
f. Convening order
0205 SEEKING COUNSEL g. Method
h. Participation by non-parties
0206 NO FURTHER ACTION i. Time limitations
j. Action
PART C -- THE THREE TYPES OF k. Review
ADMINISTRATIVE l. Advance copies of investigations
INVESTIGATIONS

0207 COMMONALITIES

2-1
PART D -- PRINCIPLES APPLICABLE TO h. Enclosures
ALL TYPES OF
ADMINISTRATIVE 0217 DISCIPLINARY ACTION
INVESTIGATIONS
0218 ROUTING COPIES
0211 CONVENING ORDERS
a. Number of copies
a. General form b. Cases involving injury or death of Naval
b. Amendments personnel or damage to ship, submarine,
aircraft, or other Government property
0212 PERSONNEL AND COSTS c. Medical malpractice cases
d. Commands receiving copies of
a. Member and investigating officer investigative report that want to
qualifications comment or make recommendations
b. Assistance and technical support
c. Costs 0219 RELEASE OF INVESTIGATIONS

0213 OATHS a. General

b. Classified information
a. General c. Litigation report investigations
b. Administration of oaths d. Command investigations
e. Courts and Boards of Inquiry
0214 PROOF OF FACTS –
STANDARDS OF PROOF PART E -- LINE OF DUTY/MISCONDUCT

a. General 0220 WHEN LINE OF DUTY/MISCONDUCT

b. Standards of proof DETERMINATIONS ARE
c. Evidence REQUIRED
d. Witnesses and warnings
a. General
0215 PRIVACY ACT COMPLIANCE b. Death cases
c. Warning required
a. Advice required
b. Social security numbers 0221 WHY LINE OF DUTY /
c. Procedure and contents MISCONDUCT DETERMINATIONS
d. Reviewing authorities ARE REQUIRED
e. Records of disclosure
a. General
0216 INVESTIGATION REPORTS b. Disability retirement and severance pay

a. General 0222 WHAT CONSTITUTES LINE OF

b. Classification DUTY
c. Preliminary statement
d. Findings of fact a. General
e. Opinions b. Active service defined
f. Recommendations c. Active duty defined for death cases
g. Signing and authentication d. Unauthorized absence

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0223 WHAT CONSTITUTES MISCONDUCT convening authority
c. Follow-up actions
a. Generally
b. Presumption 0231 SPECIAL CONSIDERATIONS IN
c. Examples RESERVE COMPONENT CASES

0224 RELATIONSHIP BETWEEN 0232 CHECKLIST FOR LINE OF

MISCONDUCT AND LINE OF DUTY / MISCONDUCT
DUTY INVESTIGATIONS

a. General a. Identifying information

b. Possible findings b. Facts
c. Records
0225 MENTAL RESPONSIBILITY d. Site of incident
e. Duty status
a. General rule f. Reserves
b. Presumption g. Injuries
c. Suicide attempts and suicides h. Impairment
i. Mental competence
0226 INTOXICATION AND DRUG j. Privacy Act
ABUSE k. Warnings about injury or disease

a. Intoxication PART F -- SPECIAL CONSIDERATIONS

b. Presumption IN DEATH CASES
c. Alcohol and drug-induced disease
0233 GENERAL
0227 REFUSAL OF MEDICAL AND
DENTAL TREATMENT a. Special considerations
b. NCIS notification
0228 RELATIONSHIP TO c. Time limitations
DISCIPLINARY ACTION d. Release of death investigations

0229 HOW LINE OF DUTY / 0234 WHEN INVESTIGATIONS OF

MISCONDUCT DEATH CASES ARE REQUIRED
DETERMINATIONS ARE
RECORDED a. No investigation required
b. Investigation required
a. General c. Limited investigation required
b. Reporting
c. Entry in health or dental record 0235 AUTOPSIES
d. Command investigations
a. General
0230 ACTION BY REVIEWING b. Unavailability of documents
AUTHORITIES

a. Action by convening authority

b. Action by general court-martial

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0236 DETERMINATIONS CONCERNING d. Required facts and opinions
LINE OF DUTY / MISCONDUCT IN
ACTIVE DUTY DEATH CASES 0242 MOTOR VEHICLE ACCIDENTS

a. Modifications to SBP programs a. General

b. Calculations of SBP annunities b. Basic investigative requirements
c. SBP modifications in the line of duty c. Required facts and opinions
determinations d. Motor vehicle accidents involving a
d. Process Government vehicle
e. Recommendations
0237 MAJOR INCIDENTS AND OTHER
CASES INVOLVING DEATH 0243 ACCIDENTS ABOARD SHIPS OR
WHERE A COURT OF INQUIRY SUBMARINES (GENERALLY)
MAY BE APPROPRIATE
a. General
a. Death cases within the definition of b. Relationship between JAGMAN
major incident investigations and safety investigations
b. Deceased servicemember contributing
cause to incident 0244 EXPLOSIONS

0238 INDEPENDENT REVIEW a. Required facts and opinions

b. Other reports
a. General
b. Qualifications of reviewer 0245 STRANDING OF A SHIP OF THE
c. Duties of reviewer NAVY
d. Action
a. General
0239 STANDARD OF PROOF b. Determination of ship’s position
c. Navigation in pilot waters
0240 SPECIAL ROUTING d. Other reports

a. Advance copy of death investigations 0246 COLLISION AND ALLISION

b. Reports available to family of deceased INCIDENTS
family members
a. General
PART G -- INVESTIGATIONS OF b. Command investigations of collisions
SPECIFIC and allisons
TYPES OF INCIDENTS c. Other reports

0241 AIRCRAFT ACCIDENTS 0247 ACCIDENTAL OR INTENTIONAL

FLOODING OF A SHIP
a. General
b. Relationship between JAGMAN a. General
investigations and aircraft safety b. Required facts and opinions
investigations
c. Class A aircraft accident JAGMAN
investigations

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0248 FIRES 0253 FIREARM ACCIDENTS

a. General a. General
b. Required facts and opinions b. Required facts and opinions

0249 LOSS OR EXCESS OF 0254 OTHER INCIDENTS

GOVERNMENT
FUNDS OR PROPERTY a. Pollution incidents
b. Combined investigations of maritime
a. General incidents
b. Specific guidance c. Security violations
c. Primary references for processing losses d. Postal violations
or excesses of Government property e. Allegations of discrimination or sexual
d. Type of investigation harassment
e. Loss of investigation: special notice to
individuals affected APPENDICES
f. Required facts and opinions
g. Guidelines for determining fault or a. Definitions
negligence b. Parties: Definitions and Rights
h. Distribution c. Sample Command Investigation
Convening Order and Report
0250 CLAIMS FOR OR AGAINST THE d. Sample Litigation-Report Investigation
GOVERNMENT Appointing Order and Report
e. Sample Privacy Act Statement Format --
a. General JAG Manual Investigations
b. Procedures when claims are involved f. Sample Privacy Act Record of
c. Forwarding records Disclosure
d. Claims arising in foreign countries g. Sample warning advisement about
e. Required facts and opinions statements regarding origin of disease or
f. Sonic booms, jet noise, and artillery injury
noise h. Sample Documentation of Preliminary
Inquiry
0251 HEALTH CARE INCIDENTS

a. General
b. Relationship to medical quality
assurance program
c. Required facts and opinions

0252 RESERVISTS

a. Statutory provisions
b. Annual training
c. Investigation
d. Required facts and opinions

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 CHAPTER II
ADMINISTRATIVE INVESTIGATIONS
PART A -- OVERVIEW AND SCOPE

0201 CONSTRUCTION (1) situation reports prescribed by articles 0831 and

0851, U.S. Navy Regulations, 1990, and by
a. This chapter shall be construed to accomplish its OPNAVINST 3100.6 series, or other situation reports
goals of -- prescribed by bureau manuals or departmental
regulations;
(1) improving the substantive quality and
usefulness of DON administrative investigations; (2) investigations conducted by an inspector
general under SECNAVINST 5430.57 series;
(2) preserving, to the extent permitted by law,
DON's ability to facilitate access to its investigative (3) investigations of aircraft accidents under
reports; and OPNAVINST 3750.6 series;

(3) minimizing related costs. (4) reports concerning security violations

prescribed by OPNAVINST 5510.1 series;
b. Guidance on interpreting this chapter may be
obtained from judge advocates or from the Deputy (5) safety and mishap investigation reports
Assistant Judge Advocate General (Claims, required by Chapter A6 of OPNAVINST 5100.19
Investigations, and Tort Litigation) at DSN 325-4600 series or by MCO P5102.1;
or (202) 685-4600.
(6) investigations conducted by the Naval
0202 SCOPE Criminal Investigative Service (NCIS) under
SECNAVINST 5520.3 series;
a. General. This chapter sets forth principles
governing the convening, conduct, review, and storage (7) investigations of allegations against senior
of administrative investigations conducted in or by the DON officials conducted pursuant to SECNAVINST
Department of the Navy under the authority of this 5800.12 series.
Manual.
d. Coordination with law enforcement investigations.
b. Relation to UCMJ investigations. In some Before conducting a preliminary inquiry or convening
circumstances, other regulations may require an an investigation under this chapter, a commander shall
investigation when this Manual does not. For ascertain, through liaison with the NCIS, whether a
example, if the only basis for an investigation is law enforcement investigation (military, federal, or
disciplinary action, a preliminary inquiry under Rule civil) is pending in the same matter. If a law
for Courts-Martial (R.C.M.) 303, Manual for Courts- enforcement investigation is pending, the commander
Martial (MCM), or a pretrial investigation under should determine whether the law enforcement
R.C.M. 405, MCM, and Article 32, UCMJ, should be investigation will serve to appropriately document the
conducted without a separate investigation under this matter without further investigation under this chapter.
Manual. (See section 0216h(2) and Part G.). If the commander
determines that a preliminary inquiry or investigation
c. Relation to other investigations. In addition to the needs to be conducted in addition to the law
investigations governed by this Manual, investigations enforcement investigation, he or she shall:
may be required by other regulations. These
investigations have different purposes and both may be (1) Coordinate any preliminary inquiry or
appropriate. For example, investigations are required investigation with the cognizant law enforcement
by other regulations, such as: agency through NCIS (unless NCIS declines, in which
case direct liaison may be made). It is recommended

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that the commander include written direction that the
officials being tasked to conduct the preliminary
inquiry or investigation communicate and coordinate
their efforts with the cognizant law enforcement
agency.

(2) Refer to the area coordinator or his or her

designee, or, in the case of the Marine Corps, to the
officer exercising general court-martial convening
authority, via the chain-of-command, any conflicts
between the law enforcement agency and the
commander that cannot be resolved locally, and
suspend action on the contested matter pending
resolution. For example, if NCIS, on behalf of itself or
another law enforcement agency, objects to the
convening of an investigation under this chapter, the
commander will not convene the investigation until the
matter is resolved by the designated higher authority.
Similarly, if an investigation under this chapter is in
progress but NCIS objects to the interview of a
specific witness, the witness will not be interviewed
until the matter is resolved by the higher designated
authority (although, in this example, other aspects of
the investigation could continue to be worked).

e. Access to reports of investigation. Release of

administrative investigation reports outside DON is
governed by SECNAVINST 5720.42 series (FOIA)
and SECNAVINST 5211.5 series (Privacy Act). (See
section 0219 and Chapter V for additional
information.)

PART B -- PRELIMINARY CONSIDERATIONS

reporting

0203 PRELIMINARY INQUIRY

a. Purpose. A preliminary inquiry serves as an command of a member who is injured or dies during
analytical tool to determine whether additional PCS transfer shall ensure that appropriate inquiries are
investigation is warranted and, if so, how it is to be conducted.)
conducted. A preliminary inquiry is not intended to
develop facts extensively or to serve as a medium for (2) In the event of a major incident, however, the
analyzing facts. officer exercising general court-martial convening
authority over the command involved, if a flag or
b. Responsibility general officer, or the first flag or general officer in the
chain-of-command, or any superior flag or general
(1) Generally, an officer in command (including an officer in the chain-of-command, will immediately
officer-in-charge) is responsible for initiating take cognizance over the case as the CA.
preliminary inquiries into incidents occurring within,
or involving personnel of, the command. (The c. Method. A commander may conduct a

2-7
preliminary inquiry personally or through designees. interview witnesses. A CA may direct such officer to
The preliminary inquiry may be accomplished in any submit oral reports, which would permit the CA to
manner considered sufficient by the commander. No make a timely decision as to how to proceed with the
particular format is required, but the commander may investigation. It would also be an option for the CA to
choose to document the outcome in writing. (See detail such an officer as an assistant to the counsel for
appendix A-2-h for an example.) If the comander later a court of inquiry if one is convened.
initiates an investigation, evidence gathered during the
preliminary proceedings shall be preserved and (3) If a CA concludes that an incident initially
submitted to the investigating officer. considered major does not fit within the definition of
that term (see Appendix A-2-a), or concludes that a
d. Preliminary inquiries into incidents involving court of inquiry is not warranted, the CA shall, prior to
potential claims or litigation. An incident may occur in convening another type of investigation, report such
which there is a potential for claims or litigation for or conclusion and the reasons therefor to the next superior
against the DON or United States, but absent officer in the chain-of-command.
preliminary inquiry, the commander will not know
whether the matter is more appropriately the subject of g. Action. A preliminary inquiry is concluded when
a command investigation, litigation report the commander who initiated the inquiry has sufficient
investigation, or court or board of inquiry. In such information to exercise one of the options listed in
situations, the commander may choose to conduct the section 0204, including the option of taking no further
preliminary inquiry, itself, under the direction and action. Ordinarily, when a commander determines
supervision of a judge advocate in anticipation of which of the options listed in section 0204 will be
litigation. In such instances, the commander should exercised, a report of that decision will be made to his
use a convening order for the preliminary inquiry and or her immediate superior in command. (Superior
include the appropriate advisements described in commanders may modify this reporting requirement by
section 0209. limiting the categories of incidents that should or
should not be reported.) Such report may be made in
e. Time limitations. Generally, the preliminary the context of existing situational reporting systems.
inquiry should be completed within three working days No stand-alone report is required. (See, e.g.,
of the commander’s learning of the incident in MILPERSMAN 4210100 for the requirement to
question. If much more time is required, then either submit Personnel Casualty Reports.)
the official conducting the inquiry is attempting to
gather too much information or the tasking order was h. Review. A superior in the chain-of-command may
not well defined. The commander may grant direct a subordinate to exercise a specific option under
extensions as necessary on a case-by-case basis and section 0204, or to reconsider a decision made under
with the limited nature of the preliminary inquiry in that section.
mind. A preliminary inquiry into a major incident will
usually take longer (see subsection g below). 0204 COMMAND OPTIONS

f. Major incidents a. Options

(1) Investigation of major incidents (see appendix (1) Major incidents. When an apparent major
A-2-a for definition) is sometimes complicated by incident occurs, the CA shall convene a court of
premature appointment of a court of inquiry. Failure inquiry, unless --
to ascertain first the sequence of events and identify
essential witnesses can unnecessarily prolong and (a) the preliminary inquiry reveals that the
complicate subsequent proceedings. incident does not come within the purview of that term
as defined in Appendix A-2-a, or
(2) A convening authority (CA) will normally find
it valuable to appoint an officer immediately to (b) the CA determines that a court of inquiry is
conduct a preliminary inquiry. Such officer should otherwise unwarranted; and
begin to locate and preserve evidence and identify and

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 (c) the next superior officer in the chain-of-
command concurs in the decision not to convene a (2) Powers of the investigation. In choosing an
court of inquiry. option, a CA should consider the powers that an
(2) Other incidents. After considering the results investigative body will require to do its job.
of a preliminary inquiry, a CA may consult a cognizant
judge advocate (see Appendix A-2-a for definition) to (a) Courts and boards of inquiry provide
obtain legal advice on how to proceed and shall hearings, which are especially effective at resolving
exercise one of the following options significant disputed issues of fact.

(a) take no further action; (b) Individuals whose conduct or performance of

official duty is being questioned can best protect their
(b) conduct a command investigation; interests by being given the rights of a party at a court
or board of inquiry.
(c) convene a litigation-report investigation to be
conducted under the direction and supervision of a (c) If subpoena power will be required, a court
judge advocate; or of inquiry is the only option.

(d) if authorized to do so (see section 0210), (3) Resource and time concerns
convene a board of inquiry. (If not authorized to do
so, then the CA may request, via the chain-of- (a) Generally, the more formal the investigation,
command, an officer with such authority to convene the more resources and time required. Nonetheless,
the board.) conducting a command investigation when a court or
board of inquiry is indicated is likely to be a false
(3) Line of Duty (LOD) determinations. LOD economy, since the less formal format will often fail to
determinations may be made and recorded in the address the issues adequately.
course of command investigations and boards and
courts of inquiry, but also through medical records and (b) Under circumstances where a court-martial
limited investigations. See Part E and section 0229. might arise from the incident, a court of inquiry may
prove to be efficient because it may be a valid
substitute for the Article 32, UCMJ, investigation.
b. Analyzing the options. Subject to the principles
set forth below, determining which option to exercise 0205 SEEKING COUNSEL
is, in the first instance, a matter of command
discretion. Superiors in the chain-of-command may, a. Although the natural instinct of an involved
however, direct a CA to reconsider or to take a commander is to seek out and document facts quickly,
different course. A CA may, but is not required to, doing so without attorney involvement may not only
consult a judge advocate about the propriety of be counterproductive but may actually work against
exercising a particular option. the interests of the commander, the command, and the
Department.
(1) Purpose of the investigation. Generally, the
primary manner in which the investigation will be used b. Whenever a question exists about how a particular
will determine which option should be exercised. If, incident or event should be investigated, a commander
for example, an investigation will be used primarily to should discuss the matter with a cognizant judge
defend against a civil lawsuit, then a litigation-report advocate.
investigation, under the direction of a judge advocate,
should be conducted to ensure that the Department's 0206 NO FURTHER ACTION
legal interests are protected. If, by way of further
example, an investigation is of little interest outside the a. Not every incident or event warrants an
immediate command, then the commanding officer investigation. A CA who concludes that further
may wish merely to document the results of the investigation would serve no useful purpose may
preliminary inquiry and take no further action. decide not to conduct one unless superior authority

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directs otherwise or unless an investigation is required
by the following sections. This option is appropriate if
the preliminary inquiry reveals that the event is likely
to be of little interest to anyone outside the immediate
command or that the event will be investigated
adequately under some other procedure, such as a
mishap investigation or NCIS investigation (see, e.g.,
references cited in section 0202). In such cases, a CA
may, but is not required to, document the results of the
preliminary inquiry. (See Appendix A-2-h for a
sample format.)

b. For example, if the preliminary inquiry into the

circumstances surrounding the manner in which a
military member sustained a permanently disabling
injury reveals no systemic contributing causes, no
evidence of misconduct, and adequate medical record
documentation, then the command need do nothing
further. (See Part E regarding line of duty/ misconduct
determinations.)

PART C -- THE THREE TYPES OF ADMINISTRATIVE INVESTIGATIONS

0207 COMMONALITIES. Principles applicable to disability or a physical inability to perform duty for a
all types of administrative investigations conducted period exceeding 24 hours (distinguished from a
under the authority of this Manual are discussed in part period of hospitalization for evaluation or observation)
D. (see Part E);

0208 TYPE ONE: COMMAND (3) deaths of military personnel, or of civilian

INVESTIGATIONS personnel occurring aboard an activity under military
control, apparently caused by suicide or under other
a. Purpose. A command investigation functions to unusual circumstances (see part F for special
gather, analyze, and record relevant information about considerations in death cases); and
an incident or event of primary interest to command
authorities. Most investigations be will of this nature. (4) aircraft incidents, groundings, floodings, fires,
Command investigations may, for example, be used to and collisions not determined to be major incidents
inquire into -- (see part G).

(1) significant property losses (minor property b. Use limitations. This type of investigation may
losses may be adequately documented through other not be used to inquire into --
means in most cases), other than damage to or
destruction of public quarters since such incidents are (1) major incidents (see section 0211, but also see
likely to result in claims against or for the Government section 0204a(1)(b) and (c));
and, consequently, require a litigation-report
investigation; (2) incidents that have resulted or are likely to
result in claims or litigation against or for DON or the
(2) incidents in which a member of the naval United States if the primary purpose of the
service, as a result of possible misconduct, incurs a investigation is to prepare to defend the legal interests
disease or injury that may result in a permanent of the Department and the United States (see section
0209); and

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 (3) incidents which have the potential for causing (5) Incidents involving Marine Corps personnel.
significant damage to the environment, for which a
litigation-report investigation should be conducted. (a) When an investigation of a training or
(See OPNAVINST 5090.1 series, Environmental and operational incident causing serious injury or death
Natural Resources Program Manual, for spill reporting (other than a major incident or aviation accident) is
requirements.) required, the senior commander in the chain-of-
command to the organization involved will consider
c. Responsibilities convening the investigation and appointing the
investigating officer at that level. No member of the
(1) Generally, an officer in command (including an organization suffering the incident, nor any member of
officer-in-charge) is responsible for initiating the staff of a range or other training facility involved in
command investigations into incidents occurring the incident, shall be appointed to conduct the
within, or involving personnel of, the command. investigation without the concurrence of the next
senior commander. (For special routing instructions
(2) If a commander believes that the investigation for training and operations incidents causing serious
of an incident is impractical or inappropriate for the injury or death, see section 0240 and Part F.)
command to investigate, another command may be
requested to conduct the investigation. When (b) If Marine Corps personnel are involved in a
circumstances such as pending deployments, non-major incident requiring an investigation while in
geographical separation, or military exigencies prevent an area geographically removed from the parent
the command from conducting or completing a command, the commanding officer shall request
thorough investigation, requests for assistance may be investigative assistance from a Marine commander
directed to superiors in the chain-of-command. Such authorized to convene general courts-martial in the
requests should contain all available information, such immediate area where the incident occurred or, in the
as time, place, and nature of the incident; full names, absence of such an officer, from the Commanding
grades, and leave status of members; names and General, Marine Forces Reserve.
addresses of all known witnesses; and copies of all
relevant statements, written evidence, or reports. d. Convening order. The convening order --

(3) Whenever more than one command is involved (1) may direct the investigating officer to seek the
in an incident requiring investigation, a single assistance of a judge advocate;
investigation should be conducted. Such an
investigation may be convened by the officer in (2) may direct the investigating officer to provide
command of any of the activities concerned, and all the opinions or recommendations in addition to finding
activities shall cooperate in the investigation. If facts;
difficulty arises in determining the appropriate CA,
then the matter shall be referred to the area coordinator (3) shall specify when the investigative report is
or common superior. If the conduct or performance of due;
duty of one of the officers in command may be subject
to inquiry, then the area coordinator or common (4) may not designate parties;
superior shall convene the investigation.
(5) shall direct, in applicable cases (see section
(4) Whenever an incident or event involves only 0202d), investigators to coordinate the JAGMAN
members of the other Military Departments, the nearest investigation with NCIS/Security personnel who may
command of the member's parent service shall be be conducting criminal investigations, requiring the
notified and requested to contact the cognizant report of any conflict to the CA for resolution; and
authority. If requested to do so by the other
Department, then an investigation shall be convened (6) should identify potential witnesses and sources
and the report forwarded per the direction of the parent of information, and otherwise provide such direction as
service. No further action need be taken within DON. the CA determines necessary or proper including

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specifying the format in which the report will be
submitted. (Normally, a letter report supported by (1) Upon receiving a command investigation report
enclosures will be specified. See appendix A-2-c for a from the investigating officer(s), the CA shall review
sample convening order and report.) or have the report reviewed, and either endorse the
report in writing or return it to the investigating officer
e. Method for further investigation. In the endorsement, the CA
may approve, disapprove, modify, or add to the
(1) A command investigation -- findings of fact, opinions, and recommendations. The
CA may also concur in or disagree with
(a) is convened in writing; recommendations which the CA cannot implement at
the CA's level. If the CA did not require opinions and
(b) is conducted by one or more persons in the recommendations in the convening order, then the CA
Department; shall state such opinions and make such
recommendations as deemed appropriate. The CA
(c) collects evidence by personal interviews, shall also indicate what corrective action, if any, is
telephone inquiries, or written correspondence; warranted and has been or will be taken. The CA shall
also state in the endorsement where any original
(d) is documented in writing in the manner evidence is preserved and provide the name and
prescribed by the CA in the convening order; telephone number of the responsible official (see
section 0214c for further information on the
(e) does not involve hearings; and safekeeping of evidence).

(f) may contain sworn statements signed by (2) The CA shall retain a copy of the report and
witnesses. forward the original, through the chain-of-command
(including area coordinators when appropriate), to the
(2) A command investigation may assign certain officer who exercises general court-martial convening
issues, witnesses, or specific matters to individual authority (GCMCA) over the CA. The subject matter
members for investigation if more than one and facts found will dictate the routing of the report for
investigating officer is appointed, and hold later further review. (Note: The GCMCA may, by
meetings to review the information collected for regulation, specify forwarding requirements for
completeness. Additionally, the investigation may investigations into certain categories or types of
proceed by calling witnesses to present testimony or by incidents for subordinate commands.) The CA shall
obtaining information through personal interview, also provide copies of the report to other commands
correspondence, telephone inquiry, or other means. which may have an interest, such as the Naval Safety
Center, the local legal service office, or the Office of
f. Time limitations. The CA will prescribe when the the Judge Advocate General. The CA shall maintain
report is due, normally 30 days from the date of the copies of all command investigations for a minimum
convening order (except in death cases, however, of 2 years.
where the investigation is to be completed 20 days
from the date of the death, or its discovery). The CA (a) Copies of investigations in which the
may grant extensions as necessary. Requests and adequacy of medical care is reasonably in issue and
authorizations for extensions need not be in writing but which involve significant potential claims, permanent
must be memorialized in the preliminary statement disability, or death shall be provided to the Naval
and/or endorsement, as applicable. Inspector General; Chief, Bureau of Medicine and
Surgery; and the local legal service office (Note: Most
g. Action. A CA may determine that the incidents of this nature involving potential claims
investigation is of no interest to anyone outside the should be the subject of a litigation-report
command, and, unless otherwise directed by superior investigation.)
authority, may choose to treat it as an internal report.
(See section h(5) below for retention guidance.) If the (b) If an investigation involves a claim or redress
CA intends to forward the report of investigation: of injuries to property under Article 139, UCMJ, see

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Chapter IV. (Note: Most incidents of this nature responsibility or occur in their geographic area.
should be the subject of a litigation-report Generally, copies need not be provided to the Chief of
investigation.) Naval Operations or to the Commandant of the Marine
Corps but copies of investigations into the following
(c) See section 0218 for additional information types of incidents shall be forwarded to the codes
on routing copies of the investigative report. indicated:

(d) See section 0240 for special routing (a) incidents that may result in extensive media
requirements in death cases. exposure (N09C or CMC (JA));

(3) The CA's action on the report should be (b) training incidents causing death or serious
completed within 30 days of receiving the report injury (N7 or CMC (JA));
(except in death cases, where section 0233c requires (c) operational incidents causing death or serious
CA review in 20 days). injury (N3/5 or CMC (JA));

h. Review (d) incidents involving significant fraud, waste,

abuse, or significant shortages of public property or
(1) A GCMCA superior to the CA must review any funds (N09G or CMC (CL));
command investigation which has been forwarded.
Thus if the first reviewer is not a GCMCA, the (e) incidents involving lost, missing, damaged,
investigation will require additional review. (Note: or destroyed property of significant value (N09G or
Superior commanders may, by regulation or on an ad CMC (CL));
hoc basis, provide direction concerning review and
forwarding of investigations consistent with this (f) incidents involving officer misconduct (N1 or
chapter.) The subject matter and facts found will CMC (JAM));
dictate the routing of the report for additional review.
As a general rule, intermediate reviewing authorities (g) incidents that are required to be reported to
should complete their review and forward the Headquarters by other directives or regulations (as
investigation within 30 days. In death cases, appropriate);
endorsers shall complete this review within 20 days
(see section 0233c). Command investigations are not (h) incidents or investigations that may require
routinely forwarded to JAG (copies may be provided action by CNO or CMC (as appropriate); and
to JAG, Code 15, if the matter is of potential interest to
JAG). All investigations are considered final when the (i) cases involving significant postal losses or
last reviewing authority determines that further offenses (N4 or CMC (MHP-50)).
endorsement is not necessary.
(5) Reports shall be retained by the CA,
(2) Investigations that involve loss, compromise, or GCMCA, or by the last commander to whom they are
possible compromise of classified information shall be routed for a period of 2 years from the time that they
routed per OPNAVINST 5510.1 series to the Chief of are received. After 2 years, investigative reports
Naval Operations (N09N), Washington, DC 20350- shall be sent to Office of the Judge Advocate
2000. General, Claims, Investigations, and Tort Litigation
(Code 15), 1322 Patterson Avenue SE, Suite 3000,
(3) See section 0240 for special routing Washington Navy Yard, DC 20374-5066 for storage.
requirements in death cases. If the CA or GCMCA receives a request for an
investigative report, that command shall submit a
(4) Copies of the report should be made available request for the investigation to Code 15. Code 15
to all superior commanders who have a direct official will forward the investigation to the requesting
interest in the recorded facts. Area coordinators or command. Once the command has responded to the
designated subordinate commanders have a direct inquiry, the command shall return the investigation to
official interest in incidents that affect their command Code 15 for storage. (See section 0214c on storing

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and protecting original evidence.)
(2) Like a command investigation, a litigation-
0209 TYPE TWO: LITIGATION-REPORT report investigation --
INVESTIGATIONS (a) may not be used to investigate a major
incident;
a. Purpose. Investigations serve many purposes but
when an incident or event is likely to result in claims (b) may not have designated parties; and
or civil litigation against or for DON or the United
States (see chapter VIII of the Manual for more (c) does not involve hearings.
information on claims and/or chapter XII, section
1205, concerning admiralty incident investigations c. Responsibilities
when litigation is anticipated), the primary purpose of
the resulting investigation is often to prepare to (1) After consulting a judge advocate, an officer in
defend the legal interests of the Department and the command is responsible for initiating litigation-report
United States. A command should contact a judge investigations into incidents involving the command or
advocate at the earliest opportunity prior to its personnel. The cognizant judge advocate, however,
commencing a litigation-report investigation to is responsible for supervising the conduct of the
determine if a litigation-report investigation is the investigation. This does not mean that the judge
appropriate type of investigation to be conducted advocate is the investigating officer, but it does mean
under the circumstances. Investigations into such that the investigating officer works under the direction
incidents must be conducted under the direction and and supervision of the judge advocate while
supervision of a judge advocate, and protected from conducting the investigation.
disclosure to anyone who does not have an official
need to know. When investigations are conducted in (2) The cognizant judge advocate may request the
anticipation of litigation, but are not conducted under assistance of the CA or ask the CA to request help
the direction and supervision of a judge advocate or from superiors in the CA's chain-of-command when
are handled carelessly, legally they cannot be circumstances such as pending deployments,
protected from disclosure to parties whose litigation geographic separation, or military exigencies prevent a
interests may be adverse to the interests of the United thorough investigation from being conducted or
States. In such an event, the materials gathered completed. Such requests should contain all relevant
during the investigation become evidence even if information and indicate that the investigation is being
subsequently proven incorrect or inaccurate. It is conducted in contemplation of litigation (see section
imperative, therefore, that litigation-report 0209d(2)), and should be processed accordingly.
investigations be conducted in accordance with the
rules that follow. (3) Whenever more than one command is involved
in an incident requiring a litigation-report
b. Comparison with command investigations investigation, a single investigation under the
supervision of a single judge advocate should be
(1) Unlike a command investigation, a litigation- conducted. All concerned activities shall cooperate in
report investigation must be -- the investigation. If difficulty arises in determining the
appropriate CA, then the matter shall be referred for
(a) convened only after consultation with a resolution to the common superior having a judge
cognizant judge advocate; advocate on staff.

(b) conducted under the direction and (4) When service members or their family
supervision of that judge advocate; members are injured by third parties and admitted to a
naval medical treatment facility, the facility
(c) conducted primarily in anticipation of claims commanding officer shall report such incidents, not
or litigation; and under known investigation. Such incidents shall be
reported to the member's command, to the area
(d) forwarded to the Judge Advocate General. coordinator, or to the designated subordinate

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commander, and to the legal service office in whose prescribed by the cognizant judge advocate (see
geographic area of responsibility the incident occurred, appendix A-2-d for a sample); and
so that any necessary investigation may be made. (See
Chapter VIII.) (e) shall not contain statements signed by
witnesses. (Signed statements are subject to discovery
d. Convening order and release to opposing parties in civil litigation even
if provided to an attorney.)
(1) The convening order shall identify the judge
advocate under whose direction and supervision the (2) During the course of a litigation-report
investigation is to be conducted. The convening order investigation, the investigating officer shall be guided
shall direct the investigating officer to report to that by the cognizant judge advocate and shall consult
judge advocate before beginning to collect evidence, frequently as the investigation progresses. When it is
and to comply with the judge advocate's direction and necessary to obtain evidence such as expert analyses,
supervision thereafter. Opinions or recommendations outside consultant reports, and so forth, the judge
will not be requested in the convening order. (To advocate should sign the necessary requests. The
protect their confidentiality, opinions and investigating officer shall present the preliminary
recommendations should be requested or written by findings to the judge advocate for review. The judge
the supervising judge advocate.) The order shall advocate may direct the investigating officer to provide
specify when the investigative report is due. opinions and recommendations or the judge advocate
may write the opinions and recommendations.
(2) The order shall state specifically that: "This
investigation is being convened and your report is (3) When the report is compiled, it shall be marked
being prepared in contemplation of litigation and for "FOR OFFICIAL USE ONLY: LITIGATION /
the express purpose of assisting attorneys representing ATTORNEY WORK PRODUCT" and be signed by
the interests of the United States in this matter." both the investigating officer and the cognizant judge
advocate.
(3) The order shall caution the investigating officer
that the investigation's conduct and results may be f. Time limitations. The CA will prescribe when the
discussed only with personnel having an official need report is due, normally 30 days from the date of the
to know. The order may identify potential witnesses convening order. The CA may grant extensions at the
and other sources of information. Parties may not be request of the cognizant judge advocate. Requests and
designated. authorizations need not be in writing but should be
memorialized in the preliminary statement.
(4) A sample convening order is shown in
appendix A-2-d. g. Action

e. Method (1) Upon receiving a litigation-report investigation

report, the CA shall review the report or cause it to be
(1) A litigation-report investigation shall -- reviewed, and either endorse the report in writing or
return it to the cognizant judge advocate for further
(a) be convened in writing; inquiry. In the CA's endorsement, comment may be
provided on those aspects of the report that bear on the
(b) be conducted by one or more persons in administration or management of the command. The
DON under the direction and supervision of the CA should, for example, indicate what corrective
cognizant judge advocate; action, if any, is warranted and has been or will be
taken. The CA shall not normally approve or
(c) collect evidence by personal interviews, disapprove the findings of fact. If the CA is
telephone inquiries, written correspondence, or other dissatisfied with the findings, the CA may return the
means; report to the cognizant judge advocate for additional
information. The CA shall state in the endorsement
(d) be documented in writing in the manner where the original evidence is preserved and provide

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the name and telephone number of the responsible be provided to other commands which have an official
official (see section 0214c for further information on need to know the results of the investigation but the
the safekeeping of evidence). The CA's endorsement report shall not be otherwise disseminated without
shall be marked: "FOR OFFICIAL USE ONLY: consulting a judge advocate.
LITIGATION / ATTORNEY WORK PRODUCT."
(2) Staff judge advocates through whom litigation-
(2) The CA shall retain a copy of the report and report investigations are routed shall review the report
forward the original to the Judge Advocate General for accuracy and thoroughness, coordinate any further
(Code 15), Department of the Navy, 1322 Patterson investigation with the cognizant judge advocate or
Avenue SE Suite 3000, Washington Navy Yard, DC JAG, and forward the report not later than 30 days
20374-5066, via the staff judge advocate of the after it is received. The report need not be forwarded
GCMCA in the chain-of- command. The copy must to JAG via formal endorsement.
be kept in a file marked "FOR OFFICIAL USE
ONLY: LITIGATION/ATTORNEY WORK 0210 TYPE THREE: COURTS AND BOARDS
PRODUCT" and be safeguarded against improper OF INQUIRY
disclosure. The CA will provide superiors in the a. Overview. Courts and boards of inquiry use a
chain-of-command and other commands which have a hearing procedure and should be reserved for the
direct official need to know the results of the investigation of major incidents (as that term is defined
investigation, such as the local legal service office, in Appendix A-2-a) or serious or significant events.
with a copy of the report but shall not otherwise Additional information on the characteristics and
disseminate the report without consulting a judge conduct of courts and boards of inquiry is set forth in
advocate. JAGINST 5830.1 series. It there is a conflict with that
instruction, this Manual controls.
(a) Copies of investigations of incidents, other
than "Health Care Incidents" (see section 0251), in b. Court of Inquiry characteristics
which the adequacy of medical care is reasonably at
issue and which involve significant potential claims, (1) Convened by persons authorized to convene
permanent disability, or death shall be provided to the general courts-martial or so designated by the
Chief, Bureau of Medicine and Surgery. Secretary of the Navy. (See Article 135, UCMJ.)

(b) If an investigation involves a claims matter (2) Consists of at least three commissioned
or redress of injuries to property under Article 135, officers as members and has appointed legal counsel
UCMJ, see Chapter IV. for the court. It may also include advisors appointed to
assist the members and non-voting members. (See
(c) See section 0218 for additional information subsection d below for additional information on
on routing copies. advisors and non-voting members.)

(3) The CA's action on the report should be (3) Convened by written appointing order.
completed within 20 days of receiving the report.
(4) Uses a hearing procedure. Takes all testimony
h. Review under oath and records all open proceedings verbatim,
except arguments of counsel, whether or not directed
(1) Superiors in the chain-of-command who to do so in the appointing order.
receive a copy of a litigation-report investigation may,
but are not required to, comment on the report. They (5) Designates as parties persons subject to the
should, however, take such action as may be UCMJ whose conduct is subject to inquiry (see
warranted. They will not normally approve or Appendix A-2-b).
disapprove the findings of fact. Copies must be kept in
files marked "FOR OFFICIAL USE ONLY: (6) Designates as parties persons subject to the
LITIGATION/ ATTORNEY WORK PRODUCT" and UCMJ or employed by the Department of Defense
safeguarded against improper disclosure. Copies may who have a direct interest in the subject under inquiry

2-16
and request to be so designated. participation or the limited purpose of utilizing their
special expertise. If appointed for a limited purpose,
(7) Has the power to order military personnel to they need not participate in any aspect of the inquiry
appear, testify, and produce evidence, and the power to not concerning their expertise. The investigative
subpoena civilian witnesses to appear, testify, and report must clarify any limited participation by
produce evidence. (Article 47, UCMJ, provides for advisors.
prosecution of civilian witnesses in U.S. district court
for failing to appear, testify, or produce evidence.) (2) The convening authority may appoint one or
more non-voting members, whose level of
c. Board of Inquiry characteristics participation in the proceedings will be as determined
by the convening authority or the senior member of the
(1) Convened by persons authorized to convene court when so authorized by the convening authority.
general courts-martial. An example of when it may be appropriate to appoint a
non-voting member is when a court is convened to
(2) Consists of one or more commissioned officers, investigate an incident in which a friendly nation or
and should have appointed legal counsel for the board. ally has a significant interest and the convening
It may also include advisors appointed to assist the authority determines that it will serve the interests of
members. (See subsection d below for additional the United States to invite a representative from the
information on advisors.) friendly nation or ally to participate, in a non-voting
capacity.
(3) Convened by written appointing order, which
should direct that all testimony be taken under oath and e. Responsibilities
all open proceedings, except counsel's argument,
recorded verbatim. Persons whose conduct is subject (1) The officer exercising general court-martial
to inquiry or who have a direct interest in the subject of convening authority over the command most involved
the inquiry may be designated parties by the convening in a major or serious incident, if a flag or general
authority in the appointing order. The CA may also officer, or the first flag or general officer in the chain-
authorize the board to designate parties during the of-command, or any superior flag officer in the chain-
proceedings (see Appendix A-2-b). of-command, will immediately take cognizance over
the case as the convening authority.
(4) Uses a hearing.
(2) Whenever more than one command is involved
(5) Does not possess power to subpoena civilian in a major or serious incident requiring formal
witnesses unless convened under article 135, UCMJ, investigation, a single investigation shall be conducted.
and Chapter IV, but can order naval personnel to The common superior commander shall convene the
appear, testify, and produce evidence. investigation in such cases, unless that officer's
conduct or performance of duty may be subject to
d. Advisors and non-voting members. inquiry, in which case the next superior in the chain-
of-command shall convene the investigation.
(1) The convening authority may appoint to a court
or board of inquiry full-time Federal personnel f. Convening order. See JAGINST 5830.1 series for
(military or civilian) to participate in the proceedings the requirements for convening orders for courts and
and advise the members. Such advisors may be boards of inquiry.
selected because of their subject-matter expertise or
because of their background, training, or experience. g. Method. See JAGINST 5830.1 series for
Advisors may be present at all board or court sessions, information on how courts and boards of inquiry are
are subject to challenge to the same extent as members, conducted.
and may suggest courses of inquiry or recommend
such other action to the board or court as they consider h. Participation by non-parties. Other than the
appropriate. Moreover, persons with technical official members, counsel, advisors, non-voting
knowledge may be appointed for either full members, and administrative support personnel, only

2-17
parties may, as a general rule, participate in the be retained for such purpose. A complete certified
proceedings of a court or board of inquiry. The CA, or copy shall be forwarded to the Echelon II Commander
the president in the case of a court of inquiry, may, via appropriate authorities.
however, permit the participation of an individual or
organization that has an interest in the subject under (4) The CA's action on the report should be
inquiry. For example, the Federal Aviation completed within 30 days of receiving the report.
Administration may be permitted to participate in an
investigation inquiring into the circumstances k. Review. Superiors who receive a report from a
surrounding an aircraft crash. Appropriate limits on court or board of inquiry shall have it reviewed, and
the degree to which such participation may be shall forward it to the cognizant Echelon II
conditioned should be specified in advance. Commander, via the chain-of-command. In their
endorsements, intermediate reviewing authorities shall
i. Time limitations. The CA shall prescribe when the comment on the report and state their concurrence or
report is due according to the complexity and gravity disagreement with the findings of fact, opinions, and
of the incident under investigation. The CA may grant recommendations. They shall also state what action is
extensions in writing. Requests and authorizations for considered warranted or has been taken. Reports, as a
extensions must be included in the report as general rule, should be forwarded within 30 days of
enclosures. receipt.

j. Action l. Advance copies of investigations

(1) Upon receiving a report from a court or board (1) In all cases where it is appropriate to
of inquiry, the CA shall review it or cause it to be forward an advance copy of an investigation, the
reviewed, and either endorse the report in writing or advance copy shall be forwarded by the CA and shall
return it for further investigation. In the endorsement, include that officer’s endorsement.
the CA may approve, disapprove, modify, or add to the
findings of fact, opinions, and recommendations. The (2) All advance copies of Marine Corps
CA shall also indicate what corrective action, if any, is investigations shall be forwarded to the Commandant
warranted and has been or will be taken. The CA shall of the Marine Corps after endorsement by the
state in the endorsement where the original evidence is convening authority.
preserved and provide the name and telephone number
of the responsible official (see section 0214c for
further information on the safekeeping of evidence).

(2) The CA, if not an Echelon II Commander, shall

retain a copy of the report and forward the original, via
all superior commanders who have a direct official
interest in the recorded facts, to the appropriate
Echelon II Commander or as otherwise directed. The
subject matter and facts found will dictate the routing
of the report for review. Reports involving Marine
Corps matters shall be forwarded to the Commandant
of the Marine Corps. The CA shall provide a copy to
other commands which may have an interest in the
report, such as the Naval Safety Center. (See section
0218 for additional information on routing copies.)

(3) If a court or board of inquiry is to be used as a

pretrial investigation under Article 32(c), UCMJ, and
the original report of investigation is desired in
connection with trial by general court-martial, it may

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 PART D -- PRINCIPLES APPLICABLE TO ALL TYPES OF
ADMINISTRATIVE INVESTIGATIONS

0211 CONVENING ORDERS Whenever practical, an investigating officer should be

senior in rank to any individual whose conduct is
a. General form. Convening orders must be in subject to inquiry. See section 0241c for statutory
official letter form addressed from the convening membership qualifications in conducting Class A
authority to the senior member of a board or court, or aircraft accident JAGMAN investigations.
to the investigating officer(s) of a command or
litigation-report investigation. When circumstances b. Assistance and technical support. For timely
warrant, an investigation may be convened by oral or completion of an investigation, a convening authority
message order. Signed, written confirmation of oral or may appoint reporters and interpreters and authorize
message orders must be issued in each case and other assistance. Experts, reporters, interpreters, and
included in the investigative report. Convening orders so forth should be provided or appointed to a
must: recite the specific purposes of the inquiry and litigation-report investigation only upon the request of
contain explicit instructions about its scope; require the cognizant judge advocate. (See section 0210d
findings of fact (it may, unless a litigation-report regarding appointment of advisors to boards and courts
investigation is being convened, also require opinions of inquiry.)
and recommendations); and contain directions for
complying with the Privacy Act, Article 31, UCMJ, c. Costs. The costs of travel, per diem, consulting
section 0202d (coordinating with law enforcement fees, or other related expenses of conducting or
authorities), and section 0220c (concerning statements participating in an administrative investigation
about origin of disease or injury), as necessary. conducted under the authority of this Manual, will be
charged to the operation and maintenance budget of
b. Amendments. A convening authority may amend the convening authority. (See section 0146 regarding
a convening order at any time to change membership, fees of civilian witnesses.)
limit or increase the scope of the inquiry, or provide
additional instructions. During the investigation, if it 0213 OATHS
appears to the fact-finders, or to the cognizant judge
advocate in the case of a litigation-report investigation, a. General. Personnel conducting a preliminary
that the convening authority might consider it inquiry, a command investigation, or a litigation-report
advisable to enlarge, restrict, or modify the scope of investigation need not be sworn.
the inquiry or to change in any material respect an
instruction provided in the convening order, a report b. Administration of oaths. Although normally not
shall be made to the convening authority. The required, a person on active duty appointed to perform
convening authority may take any action on this report investigative functions for a JAGMAN investigation is
deemed appropriate. empowered to administer the following oaths in the
0212 PERSONNEL AND COSTS performance of duties:

a. Member and investigating officer qualifications. (1) For reporters--"Do you swear (or affirm) that
Personnel detailed to conduct an investigation shall be you will faithfully perform the duties of reporter for
individuals who, in the opinion of the convening this proceeding (so help you God)?";
authority, are best qualified by reason of their age,
education, training, experience, length of service, and (2) For interpreters--"Do you swear (or affirm) that
temperament. Most command or litigation-report you will faithfully perform the duties of interpreter for
investigations will be conducted by a commissioned this proceeding (so help you God)?"; and
officer, but a warrant officer, senior enlisted person, or
civilian employee may also be used when the (3) For witnesses--"Do you swear (or affirm) that
convening authority considers it appropriate. the evidence you shall give in the matter now under

2-19
investigation shall be the truth, the whole truth, and (3) Inferences. An investigation may not
nothing but the truth (so help you God)?". speculate on the causes of an incident. Inferences
drawn from evidentiary enclosures or personal
0214 PROOF OF FACTS -- STANDARDS OF observations, however, are permissible. For example,
PROOF an investigation may determine, through tangible
evidence, the likely chain of events relative to the
a. General. An administrative investigation need not subject of investigation. However, it is, in most cases,
be conducted in accordance with the formal rules of irrelevant and improper for an investigative body to
evidence applicable to courts-martial. It may use the theorize about the thought processes of an individual
most effective methods for collecting, analyzing, and that resulted in certain courses of conduct.
recording all relevant information and may include in
its investigative report any relevant matter that a c. Evidence
reasonable person would consider to be believable or
authentic. (1) Safekeeping

b. Standards of proof (a) To the extent consistent with mission

requirements, the investigating officer and the
(1) Preponderance of evidence. Except for facts of convening authority will ensure that all evidence is
which a court may take judicial notice (see Military properly preserved and safeguarded until the
Rules of Evidence 201 and 201a, MCM), an investigation is complete and all relevant actions have
administrative investigation shall arrive at findings of been taken. Perishable or unstable items of evidence
fact only if supported by a preponderance of the (such as tire tracks) should be promptly photographed
evidence unless a higher standard is required as set or otherwise preserved, preferably by trained
forth below. personnel. Evidence should not be handled by
untrained personnel unless absolutely necessary to
(2) Clear and convincing. This term means such preserve its integrity.
evidence as would convince an ordinary prudent-
minded person beyond a well-founded doubt. It is a (b) Original items with evidentiary value must be
higher degree than a preponderance of the evidence retained or adequate steps taken to ensure their safe
(“more likely than not”) standard, but it does not storage. Operational commands are encouraged to
require proof beyond a reasonable doubt as in criminal make satisfactory storage arrangements with
cases. See also paragraph 3 of Appendix A-2-a. supporting elements ashore in this regard. The CA's
Findings of fact relating to the following issues must forwarding endorsement must indicate where the
be established by clear and convincing evidence: evidence is maintained, what arrangements have been
made for its safekeeping, and report the name and
(a) to rebut the presumption that an injury, telephone number of the responsible official.
disease, or death has been incurred in the line of duty;
(c) For fungible items, chain-of-custody
(b) to rebut the presumption of mental documents must also be preserved together with the
responsibility when the question of a member's mental evidence to which they relate. Consult a judge
responsibility has been raised by the facts or by the advocate for assistance. (See OPNAVINST 5580.1
nature of the incident; series for further information; OPNAV Form 5527/11
is the "Evidence/Property Custody Receipt" form and
(c) to rebut the presumption that an unauthorized includes space for chain-of-custody documentation.)
absence period of less than 24 hours did not materially
interfere with the performance of the member's (d) Failure to properly safeguard and account for
military duties in line of duty/misconduct cases; or evidence may result in its inadmissibility in subsequent
legal proceedings and in prejudice to the interests of
(d) to find that the acts of a deceased service the Government.
member may have caused harm or loss of life,
including the member's own, through intentional acts. (2) Tangible evidence. Whenever the condition,

2-20
location, or other characteristic of an item of tangible be forwarded to NAVAIR (Air 412). If available, the
evidence has probative value, include the item or a original request with any attachments should be
photograph, description, chart, map, or suitable forwarded. Copies of the forwarding letter and the
reproduction in the investigative report. Discretion, original request with all attachments shall be
however, must be exercised in enclosing graphic forwarded separately to JAG (Codes 14 and 15).
photographs since doing so has significant potential for
shocking the sensitivities of relatives and others to d. Witnesses and warnings
whom the investigation may ultimately be released.
When including such materials, place them in a (1) Witnesses not suspected of misconduct or
separate envelope marked: "CAUTION, CONTAINS improper performance of duty
GRAPHIC PHOTOGRAPHS. VIEWER
DISCRETION WARRANTED." If an investigator or (a) Command investigations. Ordinarily,
board member observes an item and gains relevant witnesses should provide statements in informal
sense impressions, e.g., noise, texture, smells, or any interviews. They may be required, however, to
other impression not adequately portrayed by a provide recorded testimony under oath. Probing
photograph, chart, map, or other representation, the questions as to "who," "what," "where," "when,"
impressions should be recorded and included as an "how," and "why" should be pursued. To avoid
enclosure to the report. irrelevant material or omission of important facts, an
investigator may assist a witness in preparing a written
(3) Documentary evidence. Documentary evidence statement. When an investigator takes an oral
includes records, logs, documents, letters, diaries, statement, it should be reduced to writing and signed
reports, and statements. Documents should indicate by the witness or certified by the investigator to be an
their source and specify any special restrictions on accurate summary or verbatim transcript. Care should
their disclosure to third parties. Originals or be taken to ensure that any statement is phrased in the
authenticated copies should be obtained when possible. actual language of the witness.
Completion and forwarding of investigations will not
be delayed to await final reports, originals, or similar (b) Litigation-report investigations. Witnesses
documents unless their inclusion is absolutely essential will be asked probing questions but they will not, in
to the completion of the investigative report. Instead, most cases, be asked to make a written statement or to
the unavailability of such items should be noted and sign a statement that the investigator has prepared.
the investigation completed and forwarded. Rather, the investigator should summarize the results
Documents subsequently obtained shall be forwarded of the interview, using care to be as accurate and
by separate correspondence via the review chain, with complete as possible, and authenticate the summary
appropriate reference to the report of investigation. with the investigator's own signature. If, for any
reason, the investigating officer believes that a witness
(4) Photographs. When photographs are included as should be asked to submit a signed statement, the
part of the investigation, the following information cognizant judge advocate should be consulted first.
should be included on the reverse side: The hour and For example, if a witness with interests clearly adverse
date they were taken; a brief description of the location to the Government's is willing to provide a signed
or area photographed; the full name and rank or rate of statement that is clearly beneficial to the Government,
the photographer; and full names and addresses of then the cognizant judge advocate should direct the
persons present when the photographs were taken. If investigating officer to obtain the signed (and sworn, if
available, the photographer should be asked to provide possible) statement.
details surrounding the taking of the photographs such
as type of camera, distance from object, and so forth. (c) Boards and courts of inquiry. Generally, all
Similar information should be on a label affixed to any testimony is taken under oath in open session.
videotape included in the investigation.
(2) Witnesses suspected of an offense, misconduct,
(5) Requests for preservation of aircraft wreckage or improper performance of duty. Ordinarily, an
following a crash. Immediately upon receipt, all investigation should collect relevant information from
requests for the preservation of aircraft wreckage will all other sources before interviewing persons suspected

2-21
of an offense, misconduct, or improper performance of Privacy Act statement is separate from other applicable
duty. Also, prior liaison with the appropriate staff warnings or advisement. Requests for information
judge advocate is advised, to ensure investigators have about what a Government officer, employee, or
coordinated with law enforcement officials and will member did, observed, or thought while performing
not impede any criminal investigations into the same official duties does not require a Privacy Act
incident (see section 0202d). Before the interview, statement.
military suspects must be advised of Article 31,
UCMJ, warnings. (See Appendix A-1-m.) Civilian b. Social security numbers. A Privacy Act statement
personnel offices should be consulted about applicable must be used if a member or employee is asked to
collective bargaining requirements before interviewing voluntarily provide his or her Social Security number
civilian employees suspected of misconduct. for an investigation. If Social Security numbers are
obtained from other sources (e.g., service records), the
(3) Cautioning witnesses. To reduce the possibility individual need not be provided a Privacy Act
that disclosure of witnesses' testimony may influence statement. If Social Security numbers are obtained
the testimony of future witnesses, an investigating from other sources, this should be noted in the
officer may direct witnesses subject to naval authority preliminary statement of the investigation. Social
not to discuss their testimony. Witnesses not subject to Security numbers should not be included in
naval authority may be requested not to discuss their investigation reports unless they are necessary to
testimony. identify precisely the individuals in question, such as
in cases involving serious injury or death.
(4) Statements regarding origin of disease or injury.
Prior to being asked to provide any statement relating c. Procedure and contents. The original Privacy Act
to the origin, incidence, or aggravation of a disease or statement should be signed by the individual and
injury, the affected member shall be warned of the appended to the record of the investigation. The
right not to make such a statement. Without this individual retains the duplicate. If the information is
warning, the statement is invalid. See 10 U.S.C. § requested in an interview or hearing, the Privacy Act
1219 and section 0220c of this Manual. Where a statement should be orally summarized and explained
statement relating to the origin, incidence, or to ensure that the individual fully understands it.
aggravation of a disease or injury is invalid, the Appendix A-2-e contains proposed language that
member may be provided the warning, advised that the includes information required for a Privacy Act
prior statement is invalid and cannot be used in any statement. Locally prepared forms in the format of
way, and then asked to reiterate the statement. If the Appendix A-2-e are authorized.
member then elects to provide another statement, it
may be included in the investigation. d. Reviewing authorities. Prior to forwarding an
investigative report, the CA will ensure compliance
0215 PRIVACY ACT COMPLIANCE with the Privacy Act.

Per the Privacy Act of 1974 (5 U.S.C. § 552a) and e. Records of disclosure. Appendix A-2-f is
SECNAVINST 5211.5 series (see Chapter V), the recommended for use in recording and accounting for
following procedures apply to administrative disclosures of information about identifiable
investigations conducted under this Manual: individuals from records that are collected, used, or
maintained under the authority of this Manual. Local
a. Advice required. When the Government requests reproduction is authorized.
an individual to supply personal information (see
appendix A-2-a for the definition of "personal 0216 INVESTIGATIVE REPORTS
information") about himself in a statement to be
maintained in a system of records retrievable by the a. General. Investigative reports shall be submitted
individual's name or personal identifier, the individual in the format prescribed by the CA or, in the case of a
shall be provided in duplicate a Privacy Act statement litigation-report investigation, by the cognizant
containing the particular information prescribed in judge advocate. Normally, a letter format will be
SECNAVINST 5211.5 series. The requirement for a specified. (Appendices A-2-c and A-2-d are sample

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investigative reports.) inferences, or conclusions based on the facts found.
b. Classification. Since investigative reports may be Each opinion must cite the findings of fact upon which
circulated widely, classified information should be it is based. Opinions shall not be expressed unless
omitted unless inclusion is absolutely essential. If requested by the CA, or by the cognizant judge
unclassified information is important to the report's advocate in the case of a litigation-report investigation.
accuracy but is contained in a classified document,
then the unclassified information should, if possible, be f. Recommendations. Recommendations depend on
extracted from the classified document and included in the nature of the facts found and opinions expressed.
the investigative report. When classified matter must Recommendations shall not be offered unless
be included, the report shall be classified at the highest requested by the CA, or by the cognizant judge
level of any classified matter contained therein. advocate in the case of a litigation-report investigation.
Encrypted versions of messages shall not be included The CA or cognizant judge advocate may require
or attached to investigative reports where the content recommendations in general or limited subject areas.
or substance of such message is divulged elsewhere in Unless directed by proper authority, an investigator
the report. shall not prefer charges (preferral of charges starts the
"speedy trial clock" running) or notify an accused of
c. Preliminary statement recommended charges. (For recommendations
pertaining to the issuance of punitive and nonpunitive
(1) A preliminary statement informs convening and letters, see section 0217.)
reviewing authorities that all reasonably available
evidence was collected or is forthcoming and each g. Signing and authentication
directive of the convening authority has been met.
After setting forth the nature of the investigation, the (1) Command investigations and boards and courts
preliminary statement details difficulties encountered, of inquiry. The investigating officer or senior member
extensions requested and granted, limited participation (or in the senior member's absence, the next senior
by any member or advisor, and any other information member), respectively, must sign the investigative
necessary for a complete understanding of the case. report. Dissents may be written and, if written, must
The itinerary of an investigator or board in obtaining be attached to the report.
information is not required.
(2) Litigation-report investigations. The
(2) The preliminary statement in a litigation-report investigating officer and the cognizant judge advocate
investigation shall state expressly that the report was should both sign the investigative report. If, however,
prepared under the supervision of a judge advocate in they cannot agree on a particular portion of the report,
contemplation of litigation by or against the United then the judge advocate alone shall sign the report.
States. The investigating officer may, but is not required to,
separately document the basis for any disagreement.
(3) A preliminary statement does not eliminate the
necessity for findings of fact. For example, h. Enclosures
notwithstanding statements in both the subject line and
the preliminary statement that the investigation (1) General. The first enclosure is the signed,
involves an aircraft accident and death of the pilot, the written appointing order or signed, written
findings of fact must describe the aircraft, time, and confirmation of an oral or message appointing order.
place of the accident, identify the pilot, and provide Subsequent enclosures should contain all evidence
other relevant information. developed by the investigation. Each statement,
affidavit, transcript or summary of testimony,
d. Findings of fact. Findings of fact must be as photograph, map, chart, document, or other exhibit
specific as possible as to times, places, persons, and should be a separate enclosure. Enclosures should be
events. Make each fact a separate finding, and cite the listed in the order in which they are cited in the body of
enclosure supporting each finding. the investigation.

e. Opinions. Opinions are reasonable evaluations, (2) NCIS investigations. NCIS investigations

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consist of the report of investigation (ROI) (the the rights of a party, nonjudicial punishment may not
narrative summary portion) and enclosures. ROI's be predicated exclusively upon the findings of an
shall not be included in administrative investigation investigation conducted under this chapter, nor may
reports. Unless a local NCIS office indicates to the the report of such an investigation be used in lieu of a
contrary, clearance is not required for inclusion of pretrial investigation under Article 32(c), UCMJ.
enclosures to the ROI in an administrative
investigative report. Neither polygraph reports nor 0218 ROUTING COPIES
their results may be included in the investigative
report; however, the fact that a polygraph a. Number of copies. One complete copy of the
examination occurred and the location of the file investigation shall be forwarded with the original for
maintained by the investigative agency administering each intermediate reviewing authority. In cases
the polygraph examination may be noted. Comments involving death or injury of members, the original shall
regarding an individual's refusal to undergo a be forwarded with sufficient copies so that the ultimate
polygraph examination shall not be included in any addressee receives the original and two copies. If one
administrative investigative reports. If necessary for command conducted an investigation upon the request
a full understanding of the incident, the location of of another, then a copy of the report should be sent to
the ROI should be cross-referenced in the the requesting command.
administrative investigative report.
b. Cases involving injury or death of Naval personnel
(3) Authentication. Signatures of board members or damage to ship, submarine, aircraft, or other
or of the investigating officer(s) on an investigative Government property. The convening authority shall
report shall be sufficient to authenticate all enclosures. forward an advance copy of the record or report of
(See the next section on photographs.) investigation as soon as practical in cases involving
injuries and deaths of naval personnel or material
(4) Photographs. Convening authorities shall damage to a ship, submarine, or Government property
ensure compliance with sections 0214 and 0233d when (except aircraft) to: Commander, Naval Safety Center,
photographs are included as part of the investigation. Naval Air Station, Norfolk, VA 23511-5796.
In addition, convening authorities shall ensure that the Commanders subsequently reviewing such a record or
negatives of the photographs are placed in a sealed report shall forward advance copies of their
envelope and forwarded with the original investigation endorsements as above. In cases of aircraft accidents,
in all cases except those investigations conducted as a advance copies of investigations and endorsements
result of an admiralty incident. In those cases, section thereon will be forwarded to Commander, Naval
1207c shall apply. Safety Center only upon request. Advance copies will
be provided to servicing legal service offices in cases
0217 DISCIPLINARY ACTION involving potential claims or civil lawsuits.

Whenever punitive or nonpunitive action is c. Medical malpractice cases. Two copies of

contemplated or taken as the result of the incident investigative reports into potential medical malpractice
under inquiry, the action shall be noted in the cases should be provided to Chief, Bureau of Medicine
endorsement of the convening or reviewing authority. and Surgery, Navy Department, Washington, DC,
(For example, the endorsement could read: "Punitive 20350-2000.
action is not warranted; however, appropriate
corrective measures were taken in the case of ENS d. Commands receiving copies of investigative report
Smith.") Punitive letters, or copies of recommended that want to comment or make recommendations.
drafts thereof, shall be included in the investigative Commands receiving copies of investigative reports
report as enclosures. Nonpunitive letters (or may provide all or some of the commands concerned
recommended drafts) are private in nature and shall not with their comments and recommendations; these
be specifically mentioned in endorsements or included comments do not become part of the investigative
as enclosures in the investigative report. Drafts shall report unless a reviewing authority expressly
be separately forwarded to the appropriate commander incorporates them.
for issuance. Except where an individual was afforded

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0219 RELEASE OF INVESTIGATIONS

Release of administrative investigation reports

outside DON is governed by SECNAVINST 5720.4
series (FOIA) and SECNAVINST 5211.5 series
(Privacy Act). (Also see Chapter V of this Manual.)

a. General. As a general rule, no investigative report,

evidence, or documents compiled by investigating
officials may be released until the report is final (see
sections 0208h(1) and 0233d. In the case of aircraft
accidents investigated under the provisions of this
Manual, only the Secretary of the Navy may release
unclassified tapes, scientific reports, and other factual
information pertinent to an aircraft accident
investigation before the release of the final accident
report. Requests for the release of evidence in aircraft
investigations shall be forwarded expeditiously via the
chain-of-command and the Judge Advocate General to
the Secretary of the Navy, per 10 U.S.C. § 2254. (In
death investigations see section 0233d for next-of-kin
release considerations.)

b. Classified information. The Chief of Naval

Operations (N09N) is the release authority for
investigations involving actual or possible loss or
compromise of classified information.

c. Litigation report investigations. For all litigation-

report investigations, the Judge Advocate General is
the release authority. Convening and reviewing
commands are not authorized to release litigation-
report investigations or their contents. (See Chapter
V.)

d. Command investigations. For command

investigations, other than those dealing with possible
compromise of classified information, the GCMCA to
whom the report is forwarded ultimately is the release
authority.

e. Courts and boards of inquiry. For courts and

boards of inquiry, the cognizant Echelon II
Commander is the release authority.

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 PART E -- LINE OF DUTY/MISCONDUCT

0220 WHEN LINE OF DUTY/MISCONDUCT who sustain injuries resulting in permanent disability
DETERMINATIONS ARE REQUIRED must have received those injuries in the line of duty
and not due to their own misconduct. 10 U.S.C. §§
a. General. If a member incurs a disease or injury 1201, 1203, 1204, 1206, and 1207 require a
that may result in a permanent disability or that results determination that "the disability is not the result of the
in the member's physical inability to perform duty for a member's intentional misconduct or willful neglect,
period exceeding 24 hours (as distinguished from a and was not incurred during a period of unauthorized
period of hospitalization for evaluation or observation), absence." Although the degree and permanent nature
then determining whether the disease or injury was of the disability will be determined pursuant to
incurred in the line of duty or as the result of SECNAVINST 1850.4 series, the determination
misconduct is very important. An injury or disease regarding line of duty/misconduct will be made by the
suffered by a member of the naval service will, line commander in accordance with the provisions of
however, be presumed to have been incurred in the line this chapter. The line of duty/misconduct
of duty and not as a result of misconduct unless determination made pursuant to this chapter will be
contrary findings are made. binding on the Physical Evaluation Board, subject to
limitations set forth in SECNAVINST 1850.4 series.
b. Death cases. A line of duty determination is
required whenever an active duty servicemember of 0222 WHAT CONSTITUTES LINE OF DUTY
the naval service dies, in order to make decisions
concerning eligibility and annuity calculations under a. General. For purposes of these regulations only
the Uniformed Services Survivor Benefit Program. (the award of disability retirement and severance pay
See Part F, section 0236. are bound by separate standards regarding injuries
incurred during a period of unauthorized absence, see
c. Warning required. Any person in the Armed subsection d(2) below), injury or disease incurred by
Forces, prior to being asked to sign any statement naval personnel while in active service, and death
relating to the origin, incidence, or aggravation of any incurred by naval personnel on active duty, will be
disease or injury that he or she has suffered, shall be considered to have been incurred “in line of duty”
advised of the right not to sign such a statement. See except when incurred under one or more of the
10 U.S.C. § 1219. The spirit of this section will be following circumstances:
violated if a person, in the course of an investigation,
obtains the member’s oral statements and reduces them (1) as a result of the member’s own
to writing, unless the above advice was given first. misconduct as determined under the regulations
Compliance with this section must be documented. contained in this chapter;
(See Appendix A-2-g for a sample.)
(2) while avoiding duty by deserting;
0221 WHY LINE OF DUTY/MISCONDUCT
DETERMINATIONS ARE REQUIRED (3) while absent without leave and such
absence materially interfered with the performance of
a. General. Line of duty/misconduct determinations required military duties (see subsection d below);
are extremely important since they control several
personnel actions. The most important are SBP (4) while confined under a sentence of
benefits, disability retirement pay, and severance pay. court-martial that included an unremitted
dishonorable discharge, or
b. Disability retirement and severance pay. To be
eligible to receive certain retirement and severance pay (5) while confined under a sentence of a
benefits, members of the naval service on active duty civil court following a conviction of an offense that

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is defined as a felony by the law of the jurisdiction provisions of section 0220, must be the subject of a
where convicted. command investigation.

b. Active service defined. "Active service" as used 0223 WHAT CONSTITUTES MISCONDUCT
in this section includes full-time duty in the naval
service, extended active duty, active duty for training, a. Generally. "Misconduct," as used in this chapter,
leave or liberty from any of the foregoing, and inactive is a term of art. It is more than just inappropriate
duty training. Inactive duty training is duty prescribed behavior. An injury or disease is the result of a
for reservists by the Secretary of the Navy and special member's misconduct if it is either intentionally
additional duties authorized for reserves, performed incurred or is the result of willful neglect which
voluntarily in connection with prescribed training or demonstrates a reckless disregard for the foreseeable
maintenance activities at their units. (See and likely consequences of the conduct involved (for
SECNAVINST 1770.3 series.) death cases, however, see sections 0225(c) and 0236).
Simple or ordinary negligence, or carelessness,
c. Active duty defined for death cases. Active duty standing alone, does not constitute misconduct. The
for purposes of line of duty determinations in death fact that the conduct violates law, regulation, or order,
cases is defined in 10 U.S.C. § 101(d)(1). It includes or is engaged in while intoxicated, does not, of itself,
active duty for training, even for periods less than 30 constitute a basis for a misconduct determination.
days, but it does not include inactive duty training.
b. Presumption. An injury, disease, or death
d. Unauthorized absence suffered by a member of the naval service is presumed
to have been incurred in the line of duty and not to be
(1) Whether absence without leave materially the result of misconduct. Clear and convincing
interferes with the performance of required military evidence (see section 0214) is required to overcome
duties necessarily depends upon the facts of each this presumption.
situation, applying a standard of reality and common
sense. No definite rule can be formulated as to what c. Examples. If an individual deliberately shoots
constitutes "material interference." Generally speaking, off a toe to avoid duty, the injury is due to misconduct
absence in excess of 24 hours constitutes a material since it was intentionally incurred. If an individual
interference unless evidence to the contrary exists. shoots off a toe while playing Russian roulette, the
Similarly, an absence of shorter duration will not be injury is due to misconduct since such conduct
considered a material interference unless there is clear demonstrates a reckless disregard for the foreseeable
and convincing evidence to establish the contrary. A and likely consequences. If an individual shoots off a
statement of the individual's commanding officer, toe while holstering a pistol with the safety off, the
division officer, or other responsible official, and any injury is not due to misconduct; rather, it is the result
other available evidence to indicate whether the of the negligent failure to observe a safety precaution.
absence constituted a material interference with the
performance of required military duties, should be 0224 RELATIONSHIP BETWEEN
included in the record whenever appropriate. MISCONDUCT AND LINE OF DUTY

(2) Under chapter 61 of title 10, United States a. General. For purposes of these regulations,
Code, (10 U.S.C. § 1207), a member is ineligible for "misconduct" can never be "in line of duty." Hence, a
physical disability retirement or physical disability finding or determination that an injury was incurred as
severance benefits from the Armed Forces if the a result of the member's own misconduct must be
disability was incurred during a period of unauthorized accompanied by a finding or determination that the
absence, regardless of the length of such absence and member's injury was incurred "not in line of duty." It
regardless of whether such absence constituted a is permissible, however, to find that an injury was
material interference with the performance of required incurred "not as a result of misconduct" and "not in
military duties. Therefore, any injury incurred during line of duty." As an example, a member who is absent
a period of unauthorized absence requiring a line of without authority may be injured by a felonious assault
duty/misconduct determination pursuant to the or struck by a vehicle driven by a drunken driver.

2-27
Obviously, the injury was incurred through no fault of convincing evidence must show that the member was
the member, but if the absence interfered with the intoxicated sufficiently to impair the rational and full
performance of his required military duties a finding of exercise of his or her mental or physical faculties at the
"not in line of duty" must result. time of the injury and that the impairment was the
proximate cause of the injury. Intoxication or
b. Possible findings. The only possible combinations impairment may be produced by alcohol, a drug, or
of findings are: inhalation of fumes, gas, or vapor.
b. Presumption
(1) "In line of duty" and "not due to the member's
own misconduct;" (1) In cases involving alcohol, it may be presumed
that when a member has a blood-alcohol content of .10
(2) "Not in line of duty" and "not due to the percent by volume or greater, the member was then
member's own misconduct;" and intoxicated sufficiently to impair the rational and full
exercise of his or her mental or physical faculties. This
(3) "Not in line of duty" and "due to the member's presumption is rebuttable but, if not rebutted, is of
own misconduct." sufficient strength to provide clear and convincing
evidence of the member's impairment. The
0225 MENTAL RESPONSIBILITY presumption alone, however, does not establish
anything about the proximate cause of the injury.
a. General rule. A member may not be held
responsible for particular actions and their foreseeable (2) For example, if a sailor is injured while driving
consequences if, as the result of mental defect, disease, with a voluntarily induced blood-alcohol content of .10
or derangement, the member was unable to percent by volume, then it may be presumed that the
comprehend the nature of such acts or to control his or sailor was impaired due to intoxication to the extent
her actions. that he could not fully exercise his mental or physical
faculties at the time of the wreck. To find misconduct,
b. Presumption. In the absence of evidence to the however, it still must be shown that the resulting
contrary, all members are presumed to be mentally impairment was the proximate cause of the injury.
responsible for their acts. If a question of the mental Thus, if the accident were caused solely by the
responsibility of a member is raised by the facts or by wrongdoing of another driver, then the sailor's
the nature of the incident, this presumption ceases and impairment was not the proximate cause of the injury.
the investigation must clearly and convincingly (3) Intoxication, as described in section 0227a, may
establish the member's mental responsibility before an also be found when there is no blood-alcohol content
adverse determination can be made. measurement available or when it measures less than
.10 percent by volume. In such cases, all relevant
c. Suicide attempts and suicides. In view of the information concerning the member's condition at the
strong human instinct for self-preservation, suicide time of the injury or incident should be considered.
and a bona fide suicide attempt, as distinguished
from a suicidal gesture, creates a strong inference of c. Alcohol and drug-induced disease. Inability to
lack of mental responsibility. Self-inflicted injury, perform duty resulting from disease directly
not prompted by a serious suicidal intent, is at most a attributable to a specific, prior, proximate, and related
suicidal gesture, and such injury, unless lack of intemperate use of alcohol or habit-forming drugs is
mental responsibility is otherwise shown, is deemed the result of misconduct. See 37 U.S.C. § 802. Time
to be incurred as the result of the member’s own spent in evaluating habituation without specific
misconduct. See Part F, section 0236. inability to perform duty shall not be charged as time
lost due to misconduct.
0226 INTOXICATION AND DRUG ABUSE
0227 REFUSAL OF MEDICAL AND DENTAL
a. Intoxication. In order for intoxication alone to be TREATMENT
the basis for a misconduct determination, clear and
If a member unreasonably refuses to submit to

2-28
medical, surgical, or dental treatment, any disability Of course, the GCMCA may review the preliminary
that proximately results from such refusal shall be inquiry and order an investigation.
deemed to have been incurred as a result of the
member's own misconduct. See chapter 18, Manual of c. Entry in health or dental record. An
the Medical Department. investigation need not be convened and a report need
not be forwarded concerning misconduct and line of
duty when, in the opinion of the medical officer (or
0228 RELATIONSHIP TO DISCIPLINARY senior representative of a medical department), with
ACTION the concurrence of the commanding officer, the injury
or disease was incurred "in line of duty" and "not as a
An adverse line of duty/misconduct determination is result of the member's own misconduct" and
not a punitive measure. If warranted, commanders appropriate entries to this effect have been made in the
should take independent disciplinary action. Similarly, member's health or dental record. See chapter 16,
a favorable line of duty/misconduct determination does Manual of the Medical Department.
not preclude separate disciplinary action. Nor is such a
favorable determination relevant or binding on the d. Command investigations. A command must
issue of guilt or innocence of the member in a separate convene an investigation and make findings
disciplinary proceeding. concerning misconduct and line of duty when --

0229 HOW LINE OF DUTY/MISCONDUCT (1) the injury was incurred under circumstances
DETERMINATIONS ARE RECORDED which suggest a finding of "misconduct" might result.
These circumstances include, but are not limited to, all
a. General. As noted above, injuries or disease cases in which a qualifying injury was incurred --
suffered by naval personnel are presumed to have been
incurred in the line of duty and not as a result of a (a) while the member was using illegal drugs;
member's misconduct. Each injury or disease
requiring line of duty/ misconduct determinations (see (b) while the member's blood alcohol content
0220) must be the subject of a preliminary inquiry. was of .10 percent by volume or greater. This does not
(See 0236d for LOD determinations in death cases.). preclude the convening of an investigation if the
If, however, following a preliminary inquiry the blood-alcohol percentage is lower than .10, if the
conditions set forth in subparagraph c below are met, circumstances so indicate; and
then the member's command need not convene an
investigation and need not report the line of (c) as a result of a bona fide suicide attempt;
duty/misconduct determinations separately. Thus, if
appropriate entries in the member's health or dental (2) the injury was incurred under circumstances
records are made, and the command does not convene that suggest a finding of "not in line of duty" might
an investigation, then the presumption that the result;
member's injuries or disease were incurred in the line
of duty and were not a result of the member's (3) there is a reasonable chance of permanent
misconduct will not be rebutted. disability and the commanding officer considers the
convening of an investigation essential to ensure an
b. Reporting. If the command completing the adequate official record is made concerning the
preliminary inquiry is not a GCMCA, the command circumstances surrounding the incident; or
will report the circumstances surrounding the injury
and results of the preliminary inquiry to its GCMCA (4) the injured member is in the Naval Reserve or
using the Personnel Casualty Report system (see the Marine Corps Reserve and the commanding officer
MILPERSMAN 4210100). Unless the GCMCA considers an investigation essential to ensure an
directs otherwise, the command will provide a copy of adequate official record is made concerning the
this preliminary inquiry report to the appropriate circumstances surrounding the incident. (See
medical department for inclusion in the health or dental SECNAVINST 1770.3 series for additional
record as part of the entry described in subparagraph c.

2-29
information on Reserve Component Incapacitation
Benefits and their relationship to line of (c) Upon request, the member may be permitted
duty/misconduct findings.) to review the investigative report but not to copy it.
(After the report is final, the member may have a right
0230 ACTION BY REVIEWING AUTHORITIES under the Privacy Act to a copy of the report. See
Chapter V of this Manual for further information.)
a. Action by convening authority. Unless the report
is returned for further inquiry into the circumstances (d) If the member elects to provide any
behind the disease or injury, (see Part F for death information, it shall be considered by the CA and
cases) the convening authority will make a line of attached to the record.
duty/misconduct determination by taking one of the (e) If the member elects not to provide any
following actions: information, or fails to respond within 10 calendar
days, that election or failure shall be noted in the CA's
(1) If the CA concludes that an injury or disease endorsement.
was incurred "in line of duty" and "not due to the
member's own misconduct" (or that clear and b. Action by general court-martial convening
convincing evidence is not available to rebut the authority.
presumption of in line of duty/not due to misconduct),
this conclusion shall be expressed in the action on the (1) Unless the CA is empowered to convene general
record of proceedings. This action may be taken courts-martial, the report shall be forwarded via the
regardless of whether it differs from or concurs with an chain-of-command to an officer empowered to
opinion expressed by the investigating officer. convene general courts-martial with an assigned judge
advocate. This officer may take any action on the
(2) If, upon review of the report, the convening (or report that could have been taken by the CA. With
higher) authority believes that the injury or disease of respect to conclusions concerning misconduct and line
the member was incurred not in line of duty or due to of duty, the GCMCA shall indicate approval,
the member's own misconduct, then prior to taking disapproval, or modification of such conclusions
action that authority must afford the member (or the unless the record is returned for further inquiry. A
member's representative if the member is mentally copy of this action shall be forwarded to the
incompetent to understand the nature of the action) commanding officer of the member concerned, so that
notice of the preliminary determination and an appropriate entries may be made in the member's
opportunity, not exceeding 10 calendar days, to submit service and medical records (see below). Reviewing
any desired information for the CA's consideration. authorities subsequent to the officer exercising general
Additional time may be granted by the CA for good court-martial jurisdiction, if any, need neither comment
cause. nor record approval or disapproval of the prior actions
concerning line of duty and misconduct.
(a) The member will be advised that he or she
does not have to make any statement relating to the (2) The investigation should not normally be
origin, incidence, or aggravation of any injury or forwarded to the Judge Advocate General.
disease. If any information is obtained from the
member, a statement attesting that the above warning (3) Copies of the report shall be provided to --
was given must be attached. (See section 0220 and
appendix A-2-g.) (a) the Naval Safety Center when the report
reveals systemic safety problems;
(b) If the member is also suspected or accused of
any offense under the UCMJ, then the member should (b) the local legal service office if potential
also be advised in accordance with Article 31, UCMJ, claims by or against the Government may be involved
and of rights to counsel. Suspect's Rights (this is of special concern where medical care has been
Acknowledgement/Statement forms should be used for furnished and the Government may be entitled to
such advice. (See appendix A-1-m of this Manual.) recover third party medical claims); and

2-30
 (c) other commands having a direct official Pay is not forfeited for diseases not directly caused by
interest in the matter. and immediately following intemperate use of liquor or
habit-forming drugs. Paragraph 10315b, DODPM.
(4) The GCMCA shall keep the original
investigation for a period of 2 years. (4) Disability retirement and severance pay. As
noted in section 0221, to be eligible for disability
c. Follow-up actions. As noted above, after the retirement or severance pay, a member's injuries must
GCMCA reviews and approves the line of meet the requirements established by applicable
duty/misconduct findings, the commanding officer of statutes. One of these requirements is that the
the concerned member must cause appropriate service injury/disability not have resulted from the member's
and health record entries to be made to include the "intentional misconduct or willful neglect" nor have
GCMCA action. A copy of the GCMCA action will been "incurred during a period of unauthorized
be made an enclosure to all line of duty/misconduct absence." The Physical Evaluation Board in awarding
health record entries resulting from command any disability payment in accordance with
investigations. In this regard, the following SECNAVINST 1850.4 series is bound by line of
information is provided: duty/misconduct determinations made pursuant to this
chapter.
(1) Extension of enlistment. An enlisted member
of the naval service, unable to perform duties for more (5) Benefits administered by the Department of
than 1 day because of intemperate use of drugs or Veterans Affairs. In determining whether a veteran or
alcohol or because of disease or injury resulting from the veteran's survivors or dependents are eligible for
the member's misconduct, must, after returning to full certain benefits, the Department of Veterans Affairs
duty, serve for a period that, when added to the period makes its own determination with respect to
previously served, amounts to the term for which the misconduct and line of duty. As a practical matter,
member enlisted or was inducted. See 10 U.S.C. § these determinations must rest upon the evidence
972. available and generally this will be those facts that
have been officially recorded and are on file within the
(2) Longevity and retirement multiplier. Eligibility Department of the Navy. Statutes governing these
for increases in pay because of longevity and the benefits generally require that disabling injury or death
amount of retirement pay to which a member may be be "service connected," which means the disability was
entitled is dependent upon cumulative years of incurred or aggravated, or, that the death resulted from
"creditable service." An enlisted member who is a disability incurred or aggravated, "in line of duty."
unable to perform duties for more than 1 day because 38 U.S.C. § 101. The statutory criteria for making such
of intemperate use of drugs or alcohol or because of determinations are contained in 38 U.S.C. § 105.
disease or injury resulting from misconduct is not
entitled to include such periods in computing 0231 SPECIAL CONSIDERATIONS IN
"creditable service." Paragraph 10104, Department of RESERVE COMPONENT CASES
Defense Military Pay and Allowances Entitlement
Manual (DODPM). Per DODDIR 1241.1 of 3 December 1992, CA's must
issue "interim" line of duty determinations within 7
(3) Forfeiture of pay. A member of the naval days of being notified that a reservist not on the active
service on active duty who is absent from regular duty list has an incapacitating injury or illness incurred
duties for a continuous period of more than 1 day or aggravated while on active duty (including leave
because of disease that is directly caused by and and liberty therefrom), active duty for training, inactive
immediately follows intemperate use of alcohol or duty training, or travel to or from such duty. This
habit-forming drugs is not entitled to pay for the period interim determination is intended to ensure that the
of that absence. If pay is forfeited for more than 1 reservist's incapacitation pay can be started without
month, however, the member is entitled to $5.00 for delay. If the final line of duty/misconduct
personal expenses for each month that his pay is determination is adverse to the member, immediate
forfeited. Paragraph 10315c, DODPM. Pay is not action must be taken to stop incapacitation benefits.
forfeited for absence from duty caused by injuries. (See SECNAVINST 1770.3 series for further

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information.) absence status of an individual at the time of the
incident.
0232 CHECKLIST FOR LINE OF
DUTY/MISCONDUCT INVESTIGATIONS f. Reserves. When the person involved is a member
of a Reserve component of the Navy or Marine Corps,
The following is a checklist of matters that should be complete information as to the member's status in
included, as applicable, in any report of an relation to extended active duty, active duty for
investigation convened to inquire into and make training, or inactive duty training (or travel to and from
recommendations concerning misconduct and line of such duty) at the time of the incident must be stated.
duty under the provisions of this chapter.
g. Injuries. Complete information as to the nature
a. Identifying information. The complete name, and extent of all injuries to naval personnel and the
grade or title, service or occupation, and station or place and extent of any hospitalization resulting
residence of all persons, military, and civilian, killed or therefrom. Include costs when civilian facilities are
injured incident to the event under investigation. (See used. Also include the amount of "lost" time.
section 0215 for advice required to be given by the
Privacy Act if social security numbers are requested.) h. Impairment. (See section 0226 regarding
applicable presumption.) When relevant, evidence
b. Facts. All facts leading up to and connected with regarding the state of intoxication and the extent of
an injury, disease, or death. impairment of the physical or mental faculties of any
person involved and connected with the incident.
c. Records. Military or civilian police accident Evidence as to the individual's general appearance and
reports, pertinent hospitalization or clinical records, behavior, rationality of speech, coordination of
death certificates, autopsy reports, records of coroners' muscular effort, and all other facts, observations, and
inquests or medical examiners' reports, and opinions of others bearing on the question of actual
pathological, histological, and toxicological studies. If impairment shall be obtained and recorded. Efforts
originals cannot be included, then the report shall state shall be made to determine the quantity and nature of
where the originals are located and the name and the intoxicating agent used and the period of time over
telephone number of the official responsible for their which used by the person. Results of any blood,
safekeeping. breath, urine, or tissue tests for the intoxicating agent
should also be obtained and submitted as exhibits.
d. Site of incident. Complete information concerning
the site and terrain where the incident in question i. Mental competence. When material, evidence
occurred as well as photographs, videotapes, maps, regarding the mental competence or impairment of the
charts, diagrams, or other exhibits that may be helpful deceased or injured person. In all cases of suicide or
to a complete understanding of the incident. When attempted suicide, evidence bearing on the mental
photographs are included as part of the investigation, condition of the deceased or injured person shall be
the following information should be included on the obtained. This will include all available evidence as to
reverse side: The hour and date they were taken; a social background, actions, and moods immediately
brief description of the location or area photographed; prior to the suicide or the suicide attempt, any troubles
the full name and rank or rate of the photographer; and that might have motivated the incident, and any
full names and addresses of persons present when the relevant medical or counseling information.
photographs were taken. If available, the photographer
should be asked to provide details surrounding the j. Privacy Act. Document that each enclosure
taking of the photographs such as type of camera, containing personal information solicited from an
distance from object, and so forth. Similar information individual for inclusion in a record system retrievable
should be on a label affixed to any videotape included by name or personal identifier complies with the
in the investigation. Privacy Act. (See section 0215.)

e. Duty status. Include all pertinent facts with k. Warnings about injury or disease. Document that
respect to the duty, leave, liberty, or unauthorized statements solicited from an injured member respecting

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the incidence or aggravation of his disease or injury are
in compliance with section 0220

PART F -- SPECIAL CONSIDERATIONS IN DEATH CASES

0233 GENERAL normal rule, death investigations reports/records shall

not be released to the public until they are final (see
a. Special considerations. The circumstances section 0219). In the interest of providing the
surrounding the death of naval personnel, or of civilian decedent's next of kin with timely information,
personnel at places under military control, may be however, it is DON policy that upon completion of the
recorded in a variety of ways, such as autopsy reports, review by the first flag officer in the chain of
battlefield reports, and medical reports. Investigations command, the reviewer shall release an advance copy
conducted pursuant to this Manual may also focus on of the investigation, per a request, to the next of kin.
such deaths and may incorporate other official reports The release of an advance copy to requesting next of
as enclosures. Since reports pertaining to deaths of kin shall be made unless release would violate law
military members are, by law (see 10 U.S.C. § 113 (e.g., investigation classified), or the endorser can
note; Pub. L. 102-484, Div. A, Title X § 1072, 23 Oct articulate how release would harm the command's
92; 106 Stat. 2508) generally releasable to family mission, or would interfere with an ongoing criminal
members, and since the deceased cannot contribute to investigation, or why release should not be made for
the investigation process, special considerations prevail good cause. If an endorser does not wish to release an
in the investigation of death cases. investigation to requesting next of kin, this decision
shall be coordinated with OJAG, Code 15, at 202-685-
b. NCIS notification. NCIS must be notified, 4600/DSN 325-4600.
per SECNAVINST 5520.3 series, of any death
occurring on a Navy vessel or Navy/Marine Corps (2) Delivery to next of kin. In providing
aircraft or installation (except when the cause of death investigations to the next of kin, consideration
death is medically attributable to disease or natural should be given to the potential impact of the report.
causes). Section 0240b directs that graphic photographs are to
be separately wrapped and labeled. Similar procedures
c. Time limitations. The period for completing the should be employed for autopsy reports and other
administrative investigation report/record into a death written materials containing graphic details of injury,
shall not normally exceed 20 days from the date of the wounds, mutilation, etc. In order to assist those who
death, or its discovery. For good cause, however, the may still be grieving to understand the meaning and
convening authority may extend the period. Requests significance of the report of investigation, releasing
and authorizations for extensions must be coordinated authorities should ensure, when reasonable, hand
with the next reviewing authority. The CA and delivery of the report by someone who can discuss it
subsequent reviewers have 20 days to review and with the family. Normally, the Casualty Assistance
endorse the investigation. Noncompliance with these Calls Officer(s) would make the delivery, but there
time requirements must be explained in the may be reasons (technical subject-matter, personal
endorsement of the deviating command and friendships, etc.) for another individual to be assigned
commented upon by subsequent endorsers. See this task.
MILPERSMAN 4210100 for the requirement to
submit Status Investigation Reports. 0234 WHEN INVESTIGATIONS OF DEATH
CASES ARE REQUIRED
d. Release of death investigations
A preliminary inquiry (see section 0203) shall, as in
(1) Policy for release to next of kin. As a any other circumstance potentially warranting an

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investigation, be conducted into the death of a member under military control, while the member was off-duty,
of the naval service or into the death of a civilian and the circumstances of the death had no discernable
aboard a place under naval control. At the conclusion nexus to the naval service, the command shall obtain
of the preliminary inquiry, the CA must determine the results of the investigation of the incident by
which of the options listed in section 0204 will be civilian authorities and maintain the results as an
exercised, and report that decision to the next superior internal report. The command shall document, in
in the chain-of-command (see section 0203h(2)). writing, the reasons for making the determination to
Normally, a command investigation, or a limited conduct a limited investigation, attaching the
investigation, will be appropriate to inquire into a enumerated reasons to the internal report. Completion
death case that warrants investigation under the below of these actions shall follow the time constraints noted
guidelines. A court or board of inquiry is appropriate for the processing of command investigations and will
in some cases, as discussed below. In deciding on the constitute final action on the report.
type (and necessity) of investigation, the convening
authority shall consider the following: 0235 AUTOPSIES

a. No investigation required. An investigation under a. General. When the death of a member of the
this Manual will normally not be conducted if the uniformed services on active duty, or active duty for
preliminary inquiry shows that the death: training, occurs under any of the circumstances set
forth in chapter 17, Manual of the Medical
(1) was the result of a previously known medical Department, and when an autopsy is authorized by the
condition and the adequacy of military medical care is commanding officer, and in other cases in which
not reasonably in issue; or authorization from proper authority has been obtained,
the preliminary inquiry officer shall provide the
(2) was the result of enemy action (but see medical officer designated to conduct the autopsy with
subsection b(4) below). a preliminary report of the circumstances surrounding
the death. In those cases in which authorization for
b. Investigation required. An investigation under this autopsy has been granted by other than the
Manual shall be conducted if the preliminary inquiry commanding officer, the medical officer shall be
shows: responsible for advising command authority that such
authorization has been granted in order to facilitate the
(1) the case involves civilian or other non-naval preliminary investigation and report thereof to the
personnel found dead aboard an activity under military medical officer conducting the autopsy. Upon
control, where the death was apparently caused by completion of the autopsy, the medical officer
suicide or other unusual circumstances (see conducting the autopsy shall provide the preliminary
SECNAVINST 5520.3 series and section 0203(c)); inquiry officer, or investigating officer, a copy of the
preliminary autopsy findings as to the cause of death
(2) the circumstances surrounding the death place and, when completed, a copy of the final protocol.
the adequacy of military medical care reasonably at The medical officer conducting the autopsy should be
issue; provided with a copy of the final investigative report,
if an investigation is convened. (DODDIR 6010.16 of
(3) the case involves the death of a military March 1988 and NAVMED P5065 refer to issues of
member and a probable nexus exists to naval service, authorization of autopsies.)
except where the death is as a result of enemy action
(see sections b(4) and (c) below); or b. Unavailability of documents. Notwithstanding the
guidance above, completion of a death investigation
(4) it is unclear if enemy action caused the death, and its forwarding will not be delayed to await final
such as in possible "friendly-fire" incidents. autopsy reports, death certificates, or similar
documents unless their inclusion is absolutely essential
c. Limited Investigation Required. If the preliminary to the completion of the investigative report. The
inquiry shows that the death of a service member unavailability of such documents should be noted and
occurred at a location in the United States but not the investigation completed and forwarded.

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Documents subsequently obtained shall be forwarded the retirement for service rules that would have
by separate correspondence via the review chain, with applied if the servicemember had retired at time of
appropriate reference to the report of death.
investigation/forwarding endorsement.
d. Process. Line of duty determinations are now
required in all active duty death cases, retroactive to
0236 DETERMINATIONS CONCERNING 10 Sep 01. Line of duty determinations in death
LINE OF DUTY / MISCONDUCT IN cases are made as follows:
ACTIVE DUTY DEATH CASES (1) Each active duty death shall be subject
to, at a minimum, a preliminary inquiry in
a. Modifications to SBP programs. Section 642, accordance with section 0203 of the Manual of the
National Defense Authorization Act of Fiscal Year Judge Advocate General (JAGMAN). The
2002 (NDAA 2002), Public Law 107-107, modified preliminary inquiry shall be conducted by the
the SBP program in two important ways: First, SBP command to which the deceased member was
benefits are payable to a qualified survivor when an attached (or the gaining command for
active duty servicemember dies in the line of duty, servicemembers who die in transit). The command
regardless of whether the servicemember was conducting the preliminary inquiry, or higher
retirement eligible at the time of death. Second, there authority, shall decide whether the preliminary
is an increase in the calculation of the SBP annuity inquiry is sufficient to base a line of duty
payable to a qualified survivor if the active duty determination or whether there is need for an
servicemember dies in the line of duty. investigation. In many death cases, a preliminary
inquiry consisting of a basic letter report attached to a
b. Calculations of SBP annuities. SBP annuities medical record entry or accident report will be
are calculated as a percentage of the SBP base sufficient to base a line of duty determination. The
amount. Normally, the annuity is 55 percent of the permissible findings are (1) in the line of duty and
SBP base amount. When an active duty death is not due to the member’s own misconduct (2) not in
determined to be in the line of duty, the SBP base the line of duty and not due to the member’s own
amount is equal to retired pay as if the misconduct or (3) not in line of duty and due to the
servicemember retired with total (100 percent) member’s own misconduct.
disability, which in turn is equal to 75 percent of the
member’s base pay (final or high-36 pay). Thus, for (2) If the command completing the
an active duty death determined to be in the line of preliminary inquiry or investigation is not a general
duty, the calculation of the SBP annuity payable to a court-martial convening authority (GCMCA) with an
qualified survivor normally will be 55 percent of 75 assigned staff judge advocate (SJA), the command
percent of the deceased servicemember’s final or will forward the inquiry/investigation to the first
high-36 pay. GCMCA in its chain of command with an assigned
SJA. The command will include a written
c. SBP modifications in line of duty determinations. recommendation concerning the line of duty
Section 642, NDAA 2002 only affects the SBP determination.
eligibility determination or annuity calculation in
cases determined to be in the line of duty. For cases (3) The GCMCA with an assigned SJA is
determined to be not in the line of duty, SBP the cognizant official for making the formal LOD
eligibility and annuity calculations remain in effect determination, subject to a limited review process
under the rules that existed prior to Public Law 107- described below. The GCMCA shall make the line
107. That is, if the servicemember was not of duty determination in accordance with the
retirement eligible at the time of death, then SBP is guidance in sections 0222-0227 of the JAGMAN.
inapplicable. If the servicemember was retirement
eligible at the time of death, a SBP annuity will be (4) Adverse determinations. Before making
paid to a qualified survivor, but will not be computed a determination that an active duty death was not in
on the basis of a nominal total disability retirement. the line of duty, the GCMCA or his or her SJA shall
Rather, the SBP base amount will be computed on afford a known potential SBP beneficiary the

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opportunity to review the report of investigation and
provide relevant information to the GCMCA. A a. Death cases within the definition of major
“known potential SBP beneficiary” is the person who incident. For death cases that fall within the definition
would otherwise be the recognized qualified survivor of major incident in appendix A-2-a, a court or board
if a favorable determination were made. The of inquiry should be convened. Additionally, and
respective Navy and Marine Corps program notwithstanding that a death case may not qualify as a
managers will provide assistance for Navy and major incident, a convening authority may conclude
Marine Corps commands in identifying potential SBP that a board or court of inquiry is the appropriate
beneficiaries. Ordinarily, the known potential SBP forum for conducting the investigation.
beneficiary shall be provided 30 calendar days from
receipt of the report of investigation to provide b. Deceased servicemember contributing cause to
information to the GCMCA. In an adverse incident. If, at any time during the course of a court or
determination case in which there is no known board of inquiry, it appears to the investigation that the
potential SBP beneficiary, the GCMCA shall make intentional acts of a deceased servicemember were a
the line of duty determination following a review of contributing cause to the incident, it will notify the
the investigation by the SJA. convening authority. The convening authority will
then notify the Judge Advocate General of the
(5) The LOD determination shall be made preliminary findings regarding the deceased member.
in writing by the GCMCA and forwarded to The Judge Advocate General will advise the convening
Commander, Navy Personnel Command, (PERS-62), authority what additional measures, if any, are
5720 Integrity Drive, Millington, TN 38055-6220 or necessary to ensure a fair hearing regarding the
Headquarters, U.S. Marine Corps, Manpower and deceased member's actions.
Reserve Affairs (MMSR-6), 3280 Russell Road,
Quantico, VA 22134-5103. 0238 INDEPENDENT REVIEW

(6) For adverse determination cases, the a. General. To enhance the investigation process,
GCMCA shall forward a complete copy of the prior to taking action on an investigative report which
investigation to PERS-62 or MMSR-6, where it will calls into question the propriety of a deceased
be reviewed by CNP or DC(M&RA). CNP or individual's conduct (including all apparent suicide
DC(M&RA) shall review the LOD determination and cases), the CA may cause the report to be reviewed by
underlying investigation. The determination of the an individual not previously connected with the
GCMCA shall be sustained unless CNP or investigation process and outside the CA's immediate
DC(M&RA) determine that a substantial error chain-of-command.
occurred that could materially affect the
determination. In such cases, CNP or DC(M&RA) b. Qualifications of reviewer. The individual
can make a different determination or return the case selected pursuant to this section to review the
to the GCMCA for further investigation. The review preliminary report should, to the extent feasible,
and determination of the CNP or DC(M&RA) shall possess such training, experience, and background that
be administratively final. he or she can critically analyze the salient
circumstances surrounding the death as documented in
(7) The Navy point of contact (POC) for the report. For example, if a pilot's death occurred as
SBP matters can be reached at (800) 255-8950 x the result of an aircraft accident, then the individual
44304, COMM (901) 874-4304, DSN 882-4304, or selected should be a pilot. If, by way of further
FAX (901) 874-2611. The USMC POC can be example, an enlisted Marine's death occurred as the
reached at (800) 336-4649, COMM (703) 784-9304/5, result of an apparent suicide, then the individual
or FAX (703) 784-9834. selected should be a senior noncommissioned officer
or company commander. In all cases, the individual
0237 MAJOR INCIDENTS AND OTHER selected should have no official or personal interest in
CASES INVOLVING DEATH WHERE A the outcome of the investigation.
COURT OF INQUIRY MAY BE
APPROPRIATE c. Duties of reviewer. The individual selected to

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review the investigative report shall not act as the b. Reports available to family of deceased family
deceased's representative, but should critically analyze members. Per 10 U.S.C. § 113 note (Pub. L. 102-484,
the investigative report from the perspective of the Div. A, Title X §1072, 23 Oct 92; 106 Stat. 2508),
deceased, tempered by the reviewer's own experience, fatality reports and records pertaining to any member
training, and education. If, after conducting the of the Armed Forces who dies in the line of duty shall,
review, the reviewer believes comment on the generally, be made available to family members of the
thoroughness of the investigation or the accuracy of its service member. For this reason, discretion must be
findings is warranted, then such comments shall be exercised in enclosing graphic photographs since
provided in writing to the CA. The review shall be doing so has significant potential for shocking the
completed within 10 working days of delivery of the sensitivities of relatives and others to whom the
report to the reviewer. investigation may be released. Such materials should
d. Action. The CA shall consider such comments as be enclosed separately in an envelope marked:
the reviewer may make and take such action as the CA "CAUTION. THIS ENVELOPE CONTAINS
deems warranted. The reviewer's comments, if any, GRAPHIC PHOTOGRAPHS. VIEWER
shall be appended to the investigative report. DISCRETION WARRANTED."

0239 STANDARD OF PROOF.

To find that the acts of a deceased servicemember may

have caused harm or loss of life, including the
member's own, through intentional acts, findings of
fact relating to those issues must be established by
clear and convincing evidence. (See Appendix A-2-a
for a definition of that term.)

0240 SPECIAL ROUTING.

a. Advance copy of death investigations. Since most

death cases are of interest to headquarters activities, an
advance copy of all death investigations, other than
those where only a preliminary inquiry or limited
investigation is required, shall be provided to the
cognizant Echelon II Commander after the first
endorsement. The original report shall note the
forwarding of the advance copy and each subsequent
endorser shall provide an advance copy of their
endorsement to the Echelon II Commander.

PART G -- INVESTIGATIONS OF SPECIFIC TYPES OF INCIDENTS

0241 AIRCRAFT ACCIDENTS conduct, analysis, and review of investigations of

aircraft mishaps in OPNAVINST 3750.6 series. These
a. General. Aircraft accidents are investigated by investigations are known as "aircraft accident safety
one or more investigative bodies under existing investigations" and are conducted by mishap
instructions and legal requirements. investigation boards. The results of those
investigations are documented in Mishap Investigation
(1) Mishap investigation reports. For the sole Reports.
purpose of safety and accident prevention, the Chief of
Naval Operations has issued special instructions for the (2) JAGMAN investigations. When an aircraft

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mishap results in death or serious injury, extensive U.S.C. § 1442. OPNAVINST 3750.16 series provides
damage to Government property, or the possibility of a specific direction concerning coordination of
claim exists for, or against, the Government, a investigations of aircraft accidents between military
JAGMAN investigation shall be ordered to determine authorities and the National Transportation Safety
the cause and responsibility for the mishap, nature and Board (NTSB) and the Federal Aviation
extent of any injuries, description of all damage to Administration (FAA). Due to the separate purposes
property, and any attendant circumstances. While in and procedures of JAGMAN investigations, military
most cases a claim for, or against, the Government mishap investigations, and FAA or NTSB
may reasonably be anticipated as a result of an aircraft investigations, there are specific limitations and
mishap, a command investigation will normally be restrictions regarding the integration of these
used because of the command interest in accountability investigations, use of evidence obtained (including
for incidents which result in death or substantial witness statements), and the use and disclosure of the
property damage. In all investigations concerning respective reports. OPNAVINST 3750.16 series,
potential claims for or against the Government, a copy OPNAVINST 3750.6 series, and Marine Corps Order
of the investigation shall be forwarded to JAG via the (MCO) 3750.1 provide detailed guidance regarding the
servicing legal service office upon completion of the restrictions on the use of these investigations and the
convening authority's endorsement. These JAGMAN permissible extent of integration between JAGMAN
investigations are in addition to, and separate from, the investigations and aircraft mishap investigations. The
aircraft accident safety investigations conducted under relationship between the JAGMAN investigation and
the authority of OPNAVINST 3750.6 series. aircraft safety investigations should be thoroughly
understood by all persons involved with investigating
(3) Combat losses or damage. A JAGMAN any aircraft accident or mishap.
investigation is not required for aircraft mishaps (2) Statements gathered in the course of aircraft
incident to direct enemy action. An aircraft mishap is accident safety investigations are privileged. This
incident to direct enemy action when it is due to hostile means that when the source of that information has
action or an unknown cause in a hostile area. been given a promise of confidentiality, that statement,
Notwithstanding, a JAGMAN investigation is required made before the promising safety board, cannot be
when an aircraft accident or other aircraft mishap used for any purpose other than accident prevention.
occurs in the course of a combat operation but not OPNAVINST 3750.6 series also gives a promise of
under hostile circumstances, such as an aircraft crash confidentiality to those conducting the aircraft accident
while taking off, or returning to, an airfield or aircraft safety investigation. This means that their opinions,
carrier. JAGMAN investigations are not precluded analyses, and conclusions cannot be used for purposes
when deemed appropriate by operational or other than accident prevention. In conducting the
administrative commanders. Commanders may JAGMAN investigation, care shall be exercised to
convene investigations to gather, evaluate, or verify the respect the privileged character of the aircraft accident
facts of a combat engagement when enemy action has safety investigation. No witness shall be questioned
resulted in the loss or damage to naval aircraft, or to regarding participation in an aircraft safety
determine whether combat losses were sustained by investigation.
"friendly fire."
(3) Although membership on an aircraft safety
(4) This subsection relates to JAGMAN investigation board does not bar an individual from
investigations only and does not affect any other being a witness for a JAGMAN investigation of the
reporting requirement, such as casualty and damage same incident, such dual participation is undesirable
reports required under article 0831, U.S. Navy and should be avoided due to the possibility of
Regulations, 1990. undermining the promise of confidentiality crucial to
the conduct of safety investigations.
b. Relationship between JAGMAN investigations
and aircraft accident safety investigations (4) Investigating officers of the aircraft safety
investigation and JAGMAN investigation shall have
(1) A JAGMAN investigation of an aircraft access to all real evidence and have separate
accident or mishap is a collateral investigation, as opportunities to question and obtain statements from
referred to in the joint directive issued under all witnesses. JAGMAN investigating officers shall
OPNAVINST 3750.16 series, which implements not sit in on interviews conducted by the aircraft
section 702 of the Federal Aviation Act of 1958, 49 accident safety investigation.

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 units other than the mishap unit or a unit subordinate to
(5) If a possibility exists that witnesses will testify the mishap unit, as defined in Appendix A-2-a; and
before both investigative bodies, the JAGMAN
investigating officer(s) shall explain to such witnesses 2. at least one member who is a member of
the reasons for the apparent duplication of effort. This the armed forces or an officer or employee of the
is particularly important with non-military witnesses. Department of Defense who possesses knowledge and
The explanation shall cover – expertise relevant to aircraft accident investigations,
for example, a graduate of a Naval Aviation Safety
(a) the different objectives of the two Officer/Command course, or previous service on an
investigations; aviation mishap safety or aircraft accident JAGMAN
investigation, or previous assignment as a squadron
(b) the reasons why procedures vary; Aviation Safety Officer.

(c) the need to preserve the privileged nature of (b) Single Member Investigations. A single
the aircraft accident safety investigation; and member Class A aircraft accident JAGMAN
investigation shall be:
(d) the fact that since neither command nor
administrative action may alter the privileged character 1. selected from a unit other than the mishap
of statements provided to the aircraft accident safety unit or a unit subordinate to the mishap unit, as defined
investigation, such statements will not be available to in Appendix A-2-a; and
the JAGMAN investigation from any official source.
2. Directed to consult with a member of the
c. Class A aircraft accident JAGMAN investigations armed forces or an officer or employee of the
Department of Defense who possesses knowledge and
(1) Designation of Class A Aircraft Accidents. As expertise relevant to aircraft mishap investigations, for
soon as practical, but in no case more than 60 days example, a graduate of a Naval Aviation Safety
after the occurrence of an aircraft accident involving Officer/Command course, or previous service on an
an aircraft of the Department of the Navy, the authority aviation mishap safety or aircraft accident JAGMAN
responsible for convening the investigation under this investigation, or previous assignment as a squadron
Manual shall determine whether the mishap is a Class Aviation Safety Officer.
A accident. (See Appendix A-2-a for the definition of
"Class A aircraft accident.") If the accident meets the (c) Exceptions to Statutory Qualifications
criteria for a Class A aircraft accident, the convening
order for the investigation shall contain the following: 1. Waiver Criteria. The Secretary of the
"This [Command Investigation] [Litigation-Report Navy may waive the statutory qualifications set forth
Investigation] [Board of Inquiry] [Court of Inquiry] is in sections 0242c(2)(a) and (b), above, if the Secretary
convened to investigate the circumstances surrounding determines:
a Class A aircraft accident in compliance with 10
U.S.C. 2255." a. It is not practicable to meet the
requirement because of
(2) Member Qualifications for Class A Aircraft (1) the remote location of the
Accident JAGMAN Investigations. Federal law aircraft mishap;
establishes specific qualifications for members
conducting Class A aircraft accident investigations. (2) an urgent need to promptly
These qualifications apply to any Class A aircraft begin the investigation; or
accident investigation under sections 0208, 0209, or
0210 of this Manual, convened on or after March 24, (3) a lack of available personnel
1997. See 10 U.S.C. § 2255 (1996). outside of the mishap unit who have adequate
knowledge and expertise regarding the type of aircraft
(a) Multiple Member Investigations. A involved in the mishap; and
multiple member Class A aircraft accident JAGMAN
investigation shall have: b. The objectivity and independence
of the aircraft mishap investigation will not be
1. A majority of its members selected from compromised.

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 briefing of the pilot, and other pertinent information
2. Procedure for Obtaining a Waiver. regarding the particular flight, including the use of
Requests for a waiver shall be addressed to the night vision goggles or other mission- specific factors
Secretary of the Navy, via the chain of command, and relevant to aircraft or air crew equipment or
contain a detailed explanation of the particular criteria performance.
listed in subsection (a) justifying the need for a waiver.
(9) Weather conditions throughout the flight.
3. Congressional Notification. The Secretary
must notify Congress of a waiver granted under this (10) Preflight history of the aircraft, compliance or
section and the reasons therefore. noncompliance with pertinent technical directives,
including flight hours since the last overhaul,
d. Required facts and opinions. The scope of the discrepancies noted on recent "yellow sheets"
investigation function varies with the nature and (OPNAV Form 3760/2, OPNAVINST 3710.7 series),
circumstances of the particular incident. The report of VIDS/MAF forms (OPNAV 4790/60, OPNAVINST
the investigation should include, but not be limited to, 4790.2 series), and flight hours since the last
data relevant to the purpose of the investigation on the intermediate check.
following matters:
(11) Description of flight path and maneuvers of the
(1) Identity of the pilot(s), co-pilot(s)/naval flight aircraft during flight, including manner of descent and
officer(s) (NFO), air crew and any passengers, impact.
including the background, history, training, and
experience of the pilot, co-pilot/NFO and air crew and (12) Positions of external control surfaces, landing
their familiarity with the type of aircraft involved. gear, canopy, and other relevant parts of the aircraft,
during the flight.
(2) The military or civilian status of all personnel
aboard, e.g., Regular, Reserve, or retired; active duty, (13) Presence, condition, and use of safety,
inactive duty, inactive duty training; Temporary communication, escape, and survival equipment.
Additional Duty (TAD), Temporary Duty (TDY),
leave, liberty, and so forth. (14) Post-accident assessment of the aircraft and
detailed description of all damage to the aircraft,
(3) Type, model, and bureau number of the aircraft including wreckage diagrams, disassembly and
involved. inspection reports, wreckage photographs, and data on
engine, fuselage, and control surfaces.
(4) Identification of the squadron, detachment, or
unit authorizing the flight and the official who (15) Assessment of the scene of the accident
authorized the flight. including its precise location, a description of the
terrain, and a complete listing and cost of damaged or
(5) If a privately-owned or rented aircraft was destroyed Government and non-Government property.
involved, identify the owner, authorization for the
flight, existence of private insurance, and extent of (16) Description of rescue operations employed,
coverage. their effectiveness, and any difficulties encountered.

(6) The identity of all individuals who were killed, (17) Instructions in effect at the time of the accident
injured, or who suffered property damage as a result of concerning procedures relating to the particular flight
the mishap, including name, age, address (home and (including applicable local and regional flight rules
work), telephone number, occupation, and a complete governing the flight and copies of air charts in effect
description of how their injuries occurred. (See Part F and in use).
for special considerations in death cases.)
(18) Performance data on the aircraft in question
(7) Sociological, psychological, and human factors under prevailing wind, weather, and temperature.
related to the accident, including potential stress
factors, fatigue, use of medication, or intoxication. (19) In the case of deaths caused by the accident, the
precise medical cause of death (substantiated by
(8) Type, duration, and purpose of the flight, medical records, autopsy, and death certificate).

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 (20) Cause, nature, and extent of any injuries (1) Vehicle(s) completely identified, including
suffered as a result of the accident as substantiated by vehicle identification number, license plate number,
medical records, including line of duty/misconduct model, year, and color.
determinations for injuries to naval personnel, if
required. (2) Identity of driver(s) and owner(s), including
name, age, addresses (home and work), and telephone
(21) Involvement of other aircraft, if any. numbers. For military members, indicate their military
status at the time of the accident (e.g., active duty,
(22) Roles of supervisory, support, and controlling TAD, leave, liberty, etc.), their grade/rank, and the
personnel. name, address, location and Unit Identification Code
(UIC) of their unit. If an individual died or is
(23) When the evidence concerning the accident is incapacitated as a result of the accident, provide similar
sufficient to do so, an opinion or opinions as to the identifying information for the next-of-kin or legal
cause or causes of the accident. representative. See section 0252 regarding special
findings of fact required when an accident involves
(24) When the evidence is not sufficient to form an reservists coming to or from periods of active duty or
opinion or opinions as to the cause or causes of the training. If a Government vehicle was involved,
accident, a description of those factors, if any, which in identify the unit to which the vehicle was assigned, the
the opinion of the investigator(s) substantially individual at that unit who authorized use of the
contributed to the accident. vehicle, and its authorized purpose.

0242 MOTOR VEHICLE ACCIDENTS (3) Time of the accident, light and weather
conditions, and their effect on driving conditions.
a. General. All but the most minor of accidents
involving Government vehicles and personally-owned (4) The location of the accident (e.g., highway
vehicles must be investigated. Accidents involving number, direction of travel, milepost number, street
$5,000 or less of property damage or minor personnel name, intersection), road and terrain factors, including
injuries can, however, be adequately documented by road characteristics, obstructions to the driver's vision,
completion of Standard Form 91 (Police Accident traffic signals, and signs.
Form) alone. More serious accidents may be
investigated by either a command investigation or by a (5) Estimated speed of vehicle(s) involved as
litigation-report investigation if a claim is expected for evidenced by witnesses, skid marks, condition of
or against the Government. (See JAGINST 5890.1 roads, and damages to the vehicles or other property.
series for further information on claims.) Chapter 6 of
OPNAVINST 5102.1 series provides reporting (6) Actions of other vehicles involved in the
procedures under the Navy's Mishap Investigation and accident, including any part played by them in creating
Reporting System. That system may require an the conditions that resulted in the accident.
additional investigation.
(7) Traffic conditions at the scene and their effect
b. Basic investigating requirements. When on the accident.
conducting an investigation into a motor vehicle
accident, physically observe the damage to property (8) Traffic laws and regulations in force pertinent
and survey the accident scene whenever practical. to the accident, including traffic safety devices, signs,
Include photographs, if possible. Document injuries and markings (e.g., school zone, no passing zone,
and damage by attaching the best available evidence railroad crossing, reduced speed limit), and any
including relevant medical records and actual bills or requirement to use safety devices installed in the
receipts. A copy of any investigation concerning vehicles (e.g., seat belts, child carriers). A copy of the
potential claims for or against the Government must be statute, ordinance, or regulation should be made an
forwarded to the cognizant legal service office upon enclosure. Consult with the cognizant legal service
completion of the CA's endorsement. office for assistance.

c. Required facts and opinions. The following facts (9) Mechanical condition of the vehicles. If a
and opinions shall be included in the report:

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mechanical defect or condition (e.g., faulty or worn (18) Name, age, address, and telephone number of
brakes/tires) is determined to have contributed to the any witnesses to the accident, a description of their
accident, include the relevant maintenance history of location in relation to the accident scene, their ability to
the vehicle. observe from that location, and what they saw.

(10) Physical condition of the driver, or drivers, (19) The name, address, and telephone number of
including intoxication, fatigue, use of medications or any law enforcement official who investigated the
drugs, or other medical condition. The factual portion accident. A copy of any law enforcement or police
of the report should include such matters as the number report made concerning the accident should be
of hours of sleep prior to the accident, the number of included as an enclosure and the custodian of the
hours worked, the amount of alcohol consumed, results original report should be indicated.
of any blood alcohol or other test for intoxication, any
medications or drugs taken prior to the accident and (20) Any civilian or military criminal charges
the time elapsed between their last use and the brought as a result of the accident and the ultimate
accident, and any unusual stress or abnormal condition resolution of those charges. Do not delay the report of
that might have affected the driver's alertness. The investigation solely to document the outcome of
opinion section should address any reasonable criminal charges. The CA should forward that
inferences that may be drawn from these facts relevant information to subsequent endorsers and to the copy-to
to the cause of the accident. addressees as it becomes available.

(11) Driving experience of the driver or drivers, (21) If a private vehicle is involved in the accident,
both generally and in the type of vehicles being driven, the name, address, policy number, and telephone
including the state which licensed the driver(s) and any number of any insurer of the vehicle, including the
previous loss of driving privileges and driving-related amount and type of insurance carried and those
convictions (e.g., reckless driving, drunk driving, categories of drivers who are covered by the policy.
driving without insurance).
(22) An opinion regarding the probable cause of
(12) Safety devices installed and whether they were the accident. If the evidence is insufficient to establish
being used at the time of the accident. probable cause, those factors which in the opinion of
the investigating officer contributed to the accident
(13) Conduct of passenger(s). Opinions may should be listed.
include reasonable inferences on the effect of any
passenger's conduct on the driver(s). (23) An opinion regarding the contributory or
comparative negligence of any party, if any. Consult
(14) Facts and opinions relevant to knowledge by the cognizant legal service office or SJA for guidance
any passenger of any impairment of the driver at the pertaining to the relevant standard and its application.
time the passenger entered or had a reasonable
opportunity to leave the vehicle. (24) If not included in the facts relevant to military
or criminal charges filed, an opinion concerning any
(15) Damage to vehicles fully described (including laws, articles of the UCMJ, or regulations violated.
photos, if available) and repair costs.
(25) Whether or not the vehicles are economically
(16) Damage to other property (including photos, if repairable, and if not, their salvage value.
available) and repair costs.
(26) Whether or not the driver (in case of
(17) Nature and extent of personal injuries and Government vehicle) was acting within the scope of
medical costs, documented by relevant medical employment pursuant to state law, and whether injuries
records, bills, and receipts. If death resulted from the sustained by military members were incurred in the
accident, indicate the cause of death and include a line of duty or as a result of misconduct. (See Part E.)
copy of the death certificate and any autopsy reports as
enclosures. Include the facts and opinions required d. Motor vehicle accidents involving a Government
under section 0250e(5), Claims For Or Against the vehicle almost always involve the potential for claims
Government, relevant to personal injuries. for or against the Government. In such cases, refer to
section 0250(e) and include all the facts and opinions

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required by that section. Chapter A6 of OPNAVINST 5100.19 series for the
conduct, analysis, and review of investigations of
e. Recommendations mishaps that occur aboard ships or submarines. These
investigations are conducted by mishap investigation
(1) Whether or not disciplinary action should be boards appointed for that purpose and the results are
taken against any of the parties involved. If documented in mishap investigation reports (MIRs).
disciplinary action has been taken, indicate the result,
documented by enclosure. Nonpunitive letters of (3) JAGMAN investigations. When an afloat
caution are private in nature and the issuance of such mishap results in death or serious injury, extensive
letters should not be addressed in the investigation, nor damage to Government property, or the possibility
should copies of such letters be made enclosures to the exists that a claim may be filed by or against the
investigation. If disciplinary action is recommended, Government, a JAGMAN investigation shall be
but has not been initiated, include as an enclosure a appointed to investigate and determine the cause and
charge sheet with draft specifications. Draft responsibility for the mishap, nature and extent of any
specifications should not be preferred, however, since injuries, description of all damage to property, and any
doing so starts the "speedy trial clock." Consult with and all attendant circumstances. These JAGMAN
the cognizant legal service office or SJA. investigations are in addition to, and separate from, the
mishap investigation boards appointed under the
(2) If Government property has been damaged, a provisions of OPNAVINST 5100.19 series.
recommendation as to the disposition of the property
as follows: (4) Combat losses or damage. A JAGMAN
investigation is not required for damages to property or
(a) Repaired and returned to service. injuries to personnel that are incident to direct enemy
(b) Dropped from the records. action. Damage to property or injuries to personnel are
incident to enemy action when the mishap results from
(3) Whether the Government should initiate a claim hostile action or an unknown cause in a hostile area.
to recover losses suffered by the Government due to Nonetheless, a JAGMAN investigation is required
damage to property or injuries to personnel, if any. when the damage or injury occurs in the course of
combat operations which are not subject to hostile
(4) Pertinent recommendations on matters of safety circumstances, e.g., a collision at sea which occurs
procedures. when the vessels involved are not engaged in action
with enemy forces. Commanders or commanding
0243 ACCIDENTS ABOARD SHIPS OR officers may, in their discretion, convene JAGMAN
SUBMARINES (GENERALLY) investigations to gather, evaluate, or verify the facts of
a combat engagement when enemy action has resulted
a. General in the loss or damage to naval ships or submarines, or
to determine whether combat losses were sustained by
(1) Command investigations are normally "friendly fire." This subsection relates only to
sufficient to document most shipboard accidents that JAGMAN investigations and does not affect any other
require more than a preliminary inquiry. Major reporting requirements, such as reports required under
incidents involving greater losses of life, personal article 0831, U.S. Navy Regulations, 1990.
injuries, or property damage will normally be
investigated by a court of inquiry. Accidents aboard b. Relationship between JAGMAN investigations
ships, particularly those involving damage caused by and safety investigations
other ships, watercraft, or cargo handling equipment,
or injuries to dock workers, shipyard employees, (1) The JAGMAN investigation of an afloat
longshoremen, or ship's visitors are likely to involve mishap is a collateral investigation and is conducted
Admiralty Law aspects and should be the subject of a separately and independently from the afloat safety
litigation-report investigation. Consult Chapter XII investigation. Due to the separate purposes and
and the cognizant legal service office or SJA. procedures of each of these investigations, there are
specific limitations and restrictions regarding the
(2) Mishap investigation reports. For the sole integration of JAGMAN investigations with other
purpose of safety and mishap prevention, the Chief of safety investigations, use of the evidence gathered
Naval Operations has issued special instructions in (including witness statements) by these other

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investigations, and use and disclosure of those reports. (b) the reasons why the procedures for each
OPNAVINST 5100.19 series provides detailed investigation vary;
guidance regarding restrictions on the use of these
investigations and the permissible extent of integration (c) the necessity for respecting and preserving
between the JAGMAN investigation and safety the privileged character of the mishap investigating
investigations. The relationship between a JAGMAN board; and
investigation and a safety investigation should be
thoroughly understood by all persons involved in (d) the fact that statements obtained by the
investigating any afloat accident or mishap mishap investigation board will not be available to the
JAGMAN investigating officer(s) from any official
(2) Statements gathered in the course of an afloat source because neither command nor administrative
safety investigation are privileged, meaning that when action may alter the privileged character of the
the source of that information has been given a statements provided to the mishap investigation board.
promise of confidentiality, that statement, made before
the mishap investigation board (MIB) which made the 0244 EXPLOSIONS
promise, cannot be used for any purpose other than
mishap prevention. OPNAVINST 5100.19 series also a. Required facts and opinions. Criminal law
gives a promise of confidentiality to those individuals enforcement investigations are required of any fire or
appointed to conduct the afloat safety investigation, explosion of unknown origin affecting DON property
meaning that their opinions, analyses, and conclusions or property under Navy/Marine Corps control. Any
cannot be used for purposes other than mishap such investigation shall be coordinated with NCIS
prevention. In conducting a JAGMAN investigation, (section 0202d). An investigation involving an
care shall be exercised to respect the privileged explosion should document the type of explosion, the
character of the afloat safety investigation. No witness cause of the explosion, the extent and nature of
shall be questioned as to participation in an afloat personnel injuries, the nature and extent of loss or
safety investigation. damage to property, the estimated dollar amount of the
loss or damage of the property, the estimated cost of
(3) Although membership on an afloat mishap medical treatment of non-military personnel injured by
investigation board does not bar an individual from the explosion, the person(s) (if any) responsible for the
being a witness for a JAGMAN investigation of the explosion, and all other pertinent facts and
same incident, participation of mishap board members circumstances. Command investigations are normally
as witnesses for the JAGMAN investigation should be used to document nonlethal explosions, or where
avoided due to the possibility of undermining the property damage is minor. If the explosion caused
promise of confidentiality crucial to the conduct of great loss of life or property damage associated with a
safety investigations. major incident, a court of inquiry will normally be
used.
(4) Members of a mishap investigation board and
JAGMAN investigating officer(s) shall have access to (1) The following information shall be included in
all real evidence and have separate opportunities to the report:
question and obtain statements from all witnesses.
JAGMAN investigating officers shall not sit in on (a) Date, time, and location of the explosion (use
interviews conducted by the mishap investigation compartment name or number if applicable);
board.
(b) Type of explosion;
(5) If a possibility exists that a witness or witnesses
will provide information to the mishap investigation (c) Kind and quantity of the materials, gases, etc.
board and to the JAGMAN investigating officer(s), the that were involved;
JAGMAN investigating officer(s) shall explain to such
witnesses why the apparent duplication of effort is (d) Measurable time intervals, if any, between
necessary. The explanation shall cover: explosions;

(a) the different objectives of the two (e) Existence of barricades and protective gear
investigations; and the effect of the explosion on them;

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 (f) Existence of any natural obstructions such as explosion.
a hill, forest, or other object intervening between the
site of the explosion and the areas affected; (2) An environmental assessment of the damage
caused by the explosion may be necessary, particularly
(g) Description of any loss or damage to if there is evidence of chemical contamination of the
Government and private property and estimated dollar surrounding area. Consult the cognizant legal service
amount needed to replace or repair the loss or damage; office or SJA.

(h) Range and extent of damage as indicated by b. Other reports. Ashore explosive mishaps
maps or photographs showing the following: involving conventional ordnance are also reported
under the separate procedures established in Chapter 5
1. Radius of complete destruction; of OPNAVINST 5102.1 series. Afloat explosive
mishaps are also reported under the separate
2. Radius of structural damage beyond procedures established in Chapter A6 of OPNAVINST
economical repair; 5100.19 series.

3. Radius of repairable structural damage; 0245 STRANDING OF A SHIP OF THE NAVY

4. Radius of general glass breakage; a. General. An investigation involving the stranding

of a ship shall include all pertinent logs, charts, orders,
5. Distances that significant missiles were regulations, condition of the sea and weather, rate and
projected, including kind and weight; direction of the tidal stream, time of the tide, and other
factors involving natural elements. Additionally, any
6. Distance between locations, if explosions mechanical or electronic deficiency or failure in the
occurred at more than one location; and ship pertinent to the stranding shall be investigated and
reported. The investigation shall ascertain the cause
7. Distance between ships and other vessels and responsibility for the stranding and resulting
or structures affected and distances to nearby ships or damage. The stranding of a Navy ship, unless only
structures not affected. insignificant damage results, is usually a major
incident. A court of inquiry will normally be convened
(i) Approximate shape and dimensions of crater, unless the preliminary inquiry indicates that a
if any, including depth and kind; command investigation will be sufficient to establish
the facts. These incidents may also involve Admiralty
(j) Weather and atmospheric conditions and their Law aspects. Consult Chapter XII and the cognizant
effect on shock waves; legal service office and SJA.

(k) Personnel involved and the extent of the b. Determination of ship's position. The
involvement, their qualifications in terms of the investigation shall determine whether the proper chart
Personnel Qualification Standards (PQS) System or provided by the Department of the Navy was used,
other required safety qualifications, the level of whether the position of the ship at the last favorable
training of the personnel involved, and whether the opportunity to avoid the casualty was accurately
level of training met required standards; determined and, if not, when it was last accurately
ascertained. To enable the investigative body to fix the
(l) Identity of personnel injured or killed (with true position of the ship at the time of her grounding,
full description of injuries supported by medical an officer not attached to the ship involved may be
records and autopsy reports, as required) (see Part F directed to ascertain the position of the ship from the
for special considerations in death cases); data available.

(m) Description of the safety precautions or c. Navigation in pilot waters. If land was sighted and
operating procedures that were in effect at the time of the distance estimated before the ship struck, steps
the explosion and whether they were observed or taken during the time land was in sight to correct the
violated; and ship's course and speed will be reported. The extent to
which applicable instructions (e.g., those contained in
(n) Opinions on the probable cause(s) of the Coast Pilot or Sailing Directions) were observed

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should be noted. (4) Type of de-watering equipment that was used
and its effectiveness;
d. Other reports. Strandings are also reported under
the separate procedures in Chapter A6 of (5) Draft forward and aft and list of ship, before
OPNAVINST 5100.19 series. and after damage. (Note: drafts may have to be
estimated from drafts recorded on departure from last
0246 COLLISION AND ALLISION INCIDENTS port and on arrival in port after damage.);

a. General. All vessel collisions and allisions (a (6) General distribution and amount of variable
vessel and fixed object) are admiralty incidents. weights, particularly fuel and water, before damage;
Consult chapter XII for required investigations and
guidance. (7) Compartments flooded and the rate of flooding
for each one, including time when:
b. Command investigations of collisions and
allisions. If, after consultation with the Judge (a) flooding started;
Advocate General per section 1205a of chapter XII, a
convening authority determines that the command (b) flooding detected;
investigation format is appropriate, the following
information shall be included in the report: (c) time General Quarters sounded, or duty
emergency repair party was called away;
c. Other reports. Collisions are also reported under
the separate provisions in Chapter A6 of OPNAVINST (d) flooding was stopped or brought under
5100.19 (series). control; and

0247 ACCIDENTAL OR INTENTIONAL (e) de-watering was completed;

FLOODING OF A SHIP
(8) Description of the physical effects of the
a. General. If the investigated mishap is a flooding, flooding and the extent of damage (hull, machinery,
the first determination to be made is whether the equipment, electronics, supplies, cargo, etc.), including
flooding is significant enough to document. Generally, photographs, or diagrams to document the range and
flooding is considered significant when one or more of extent of damage;
the followings conditions exist: damage is caused to
major/vital equipment; origin of the flooding is (9) Date of last inspection of the involved spaces
suspicious; flooding delays deployment, causes with any noted discrepancies;
significant change in operating schedule, or degrades
mission capability; naval personnel were responsible (10) Ship's location at sea or in port;
for the flooding; defective naval design, specifications,
or installation may have caused the flooding; or (11) Ship's condition of readiness;
unsound operating doctrine or procedures caused or
contributed to the flooding. Command investigations (12) Effect on the ship's ability to carry out its
are normally used to document flooding. mission;

b. Required facts and opinions. The following (13) Summary of the steps taken to control damage
information shall be included in the report of and to correct the list, trim, or depth;
investigation into flooding:
(14) Performance of installations such as flood
(1) Date, time, and location of the flooding by control, automatic door, and hatch closures;
compartment name or number;
(15) Estimated dollar amount of damage or repairs
(2) Source and type of flooding, e.g., (salt or fresh required, including damage to personal property which
water, oil, JP-5); may result in a claim against the Government;

(3) How the flooding was detected; (16) Opinion on the probable cause of the flooding,
including the cause of progressive flooding of other

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compartments (e.g., material condition of
readiness violated, failure of structure, deficiency of (f) reflash watch was set;
structure); and
(g) boundaries were set; and
(17) Opinion on whether the occurrence of a
similar type of flooding is possible on another ship. (h) fire was extinguished.

0248 FIRES (5) Type of fire-fighting organization that was

used, e.g., duty section fire party, Condition One fire
a. General. If the investigated mishap is a fire of and repair party, base firefighters, civilian fire
unknown origin affecting DON personnel or property department;
under Navy/Marine Corps control, any investigation
shall be coordinated with NCIS (sections 0202(d) and (6) Number of personnel who responded to the fire,
0233(b)). The next, determination to be made is their level of fire-fighting and damage control training;
whether the fire is significant enough to document.
Generally, a fire is considered significant when one or (7) Effectiveness of fire/repair locker organization,
more of the following conditions exist: damage is maintenance of organization charts, and leadership;
caused to major/vital equipment; origin of the fire is
suspicious; fire delays deployments, causes significant (8) Effectiveness of installed damage control
change in operating schedule, or degradation of systems and equipment;
mission capability; naval personnel were responsible
for the fire; defective naval design, specifications, or (9) Type of extinguishing agent used and its
installation may have caused the fire; or unsound effectiveness;
operating doctrine or procedures caused or contributed
to the fire. Command investigations are normally used (10) Availability and operability of extinguishing
to document fires, unless the damage to property or equipment;
loss of life involved rises to the level of a major
incident. Fires in quarters ashore should normally be (11) System of communications that was used and
investigated by a litigation-report investigation since any difficulties in communication;
claims are usually involved.
(12) Description of the physical effects of the fire
b. Required facts and opinions. The following (radii of losses and damage with respect to fire, smoke,
information shall be included in the report of and water, extent of the spread of the fire), including
investigation of fires: maps, photographs, or diagrams to document the range
and extent of the damage;
(1) Date, time, and location of the fire (use
compartment name or number if applicable); (13) Date of last inspection of the involved spaces
with any noted discrepancies;
(2) Class of fire;
(14) Ship's location at sea or in port;
(3) Method by which fire was detected;
(15) Ship's condition of readiness;
(4) Time when:
(16) Effect of the fire on the ship's ability to carry
(a) fire started (detected); out its mission;

(b) fire was reported; (17) Estimated dollar amount of damage or repairs
required, including damage to personal property which
(c) General Quarters sounded, or fire party was may result in a claim against the Government;
called away;
(18) Identity of personnel that were injured or
(d) fire located; killed (with full description of injuries, medical
records, autopsy reports, as required) (see Part F for
(e) fire-fighting started; special considerations in death cases);

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 investigation or by the procedures established in DOD
(19) Opinion on the cause of fire and the factors 7000.14-R, Volume 5.
that contributed to the spread of the fire; and
(5) Commanding officers or reviewing authorities
(20) Opinion on whether the occurrence of a should consider conducting a preliminary inquiry
similar type of fire is possible on another ship. when recurring losses or excesses indicate carelessness
in handling public funds or property, and regular
0249 LOSS OR EXCESS OF GOVERNMENT management reviews and reports are not considered
FUNDS OR PROPERTY adequate to remedy the situation. A JAGMAN
investigation may be appropriate even though each
a. General. Article 0814, U.S. Navy Regulations, loss or excess, by itself, would not normally require
1990, requires commanding officers to recommend or one. Navy publications applicable to the type of funds
convene an investigation under the provisions of the or property involved (e.g., including, but not limited to,
JAG Manual into the circumstances of all deficits NAVSUP P-486 for provisions afloat, or P-487 for
(losses) or excesses of public funds or property in the ships' stores) should be consulted for those amounts of
custody of persons under their command, unless losses or excesses that are considered normal for the
properly excused by higher authority. A command volume of business conducted, and for those amounts
investigation is usually sufficient for this purpose. The that warrant further investigation.
following general provisions are pertinent:
(6) For losses or excesses of property (not funds),
(1) To verify the existence and amount of a deficit the procedures for Financial Liability Investigation of
or excess, a prompt audit (preliminary inquiry) of Property Loss (DD Form 200) meet the requirements
funds or property records normally should precede the for an investigation in most situations. The original
decision to convene a JAGMAN investigation. report will be forwarded in accordance with survey
Consultation with an appropriate assist team is regulations, and a duplicate original will be forwarded
encouraged prior to convening a JAGMAN as set out in subsection h.
investigation. (7) When the cause of loss or excess in the funds or
property of a financially accountable custodian cannot
(2) A JAGMAN investigation may be required be determined, negligence on the part of the custodian
even if the custodian of funds or property is not an is normally presumed by the relief authority when
accountable person, as defined in Department of considering requests for relief of liability.
Defense Financial Management Regulation (DOD
7000.14-R), Volume 5, "Disbursing Policy and (8) Other than section 0167, there is no
Procedures." authorization to collect the value of lost public
property from nonaccountable personnel, even when
(3) A JAGMAN investigation may be a caused by fault or negligence. Disciplinary action,
prerequisite, under section 0167, to setoff against pay, however, may be taken, if appropriate, based on
losses by nonaccountable personnel, and is the primary investigation findings of culpability.
source of information in determining whether or not
relief of liability may be granted to the custodian in b. Specific guidance
cases of lost funds in amounts of $750.00 or more.
(1) Public funds. JAGMAN investigations are
(4) Criminal law enforcement investigations are required for all losses or excesses of public funds,
required if there is any indication that the loss or except as follows:
excess was caused by fraud, embezzlement, theft, or
other criminal act. Any such investigation should be (a) When a loss of disbursing funds is
coordinated with the Naval Criminal Investigative voluntarily liquidated by the custodian under
Service. See section 0202d. Whether or not a applicable provisions;
criminal investigation is conducted, inventory records (b) When the loss or excess is less than
must be corrected with a supporting survey (Financial $750.00 in a single incident or related series of
Liability Investigation of Property Loss (DD Form incidents; or
200)). Losses or excesses of Government funds shall
be investigated and reported either by JAGMAN (c) When routine accounting adjustments to
accounts are appropriate to reflect a discrepancy in

2-48
money on hand. with losses or excesses of "nonappropriated fund
activities," however, it is important to note that some
(2) Public property. A Financial Liability Officer receive partial appropriated fund support. Losses or
(formerly called a Survey Officer) or Financial excesses of appropriated funds and appropriated fund
Liability Board (formerly a Survey Board) must property in the hands of nonappropriated fund
inquire into, and report on, all losses or excesses of activities must be investigated under subsections b(1)
public property, unless an adjustment to accountable and b(2) above.
records is otherwise authorized by Naval Supply
System Command regulations. c. Primary references for processing losses or
excesses of Government property. Primary references
(a) JAGMAN investigations are not generally for processing losses or excesses of Government funds
required for those losses or excesses for which a and property include:
Financial Liability Investigation of Property Loss
(survey) is not mandated by Naval Supply Systems (1) Department of Defense Financial Management
Command regulations. This includes such actions as Regulation (DOD 7000.14-R), Volume 5, "Disbursing
food service "losses without survey," ship's store "non- Policy and Procedures."
disproportionate losses or gains," supply stock or other
property book material losses or excesses which are (2) Department of Defense Manual (DOD
below survey thresholds, or when other routine 7200.10-M), "Accounting and Reporting for
accounting adjustments to property accounts or Government Property Lost, Damaged or Destroyed."
inventories are appropriate to reflect a discrepancy in
the property on hand. Repetitive minor losses, (3) Naval Supply Systems Command Manual,
however, which are indicative of negligence may Volume II, "Supply Ashore."
warrant an investigation as discussed in subsection a(5)
above. Furthermore, a JAGMAN investigation may be (4) Naval Supply Systems Command Publication
directed by higher authority in the chain of command 485, "Afloat Supply Procedures."
or by Commander, Naval Supply Systems Command. (5) Naval Supply Systems Command Publication
486, Volume I, "Food Service Management - General
(b) To ensure independent investigation, the Messes."
officer having custody of the property lost or in excess
should not be designated the Financial Liability Officer (6) Naval Supply Systems Command Publication
to conduct the survey. 487, "Ships Store Afloat."

(3) Postal funds or property. Postal funds are not (7) Marine Corps Order (MCO) P4400.150 series,
public funds. Investigations into loss or excess of "Consumer Level Supply Policy Manual."
postal funds or property, therefore, are not required by
article 0814, U.S. Navy Regulations, 1990. d. Type of investigation. At the conclusion of the
OPNAVINST 5112.6 series, however, requires a preliminary inquiry, the CA must determine which of
commanding officer to convene an investigation into the options listed in section 0204 to exercise. Where
any "postal offense" listed in volume I of the DOD disciplinary action may be a consideration, see section
Postal Manual. Even where no offense is involved, a 0217. For losses of property, the CA may use a survey
commanding officer should consider convening an procedure under applicable Navy or Marine Corps
investigation into any postal loss in which an regulations in lieu of an administrative investigation
accountable naval postal clerk or officer has not made under this Manual. Original reports of survey
voluntary restitution. Such an investigation may be generated by such bodies shall be forwarded as
needed by the Postal Service for action on a request for specified in the regulations under which they are
relief of liability by the accountable individual. convened. A duplicate original shall be forwarded in
the same manner as reports of investigation under
(4) Nonappropriated funds or property. section 0218 and section 0249h below. This provision
Nonappropriated funds are not public funds. Whether does not limit a CA's discretion to convene another
to convene an investigation under this Manual into type of investigation under this Manual in addition to a
losses or excesses of nonappropriated funds or survey procedure. Regardless of the type of
nonappropriated fund property is in the discretion of investigation convened, coordination with concurrent
the commanding officer or higher authority. In dealing investigators from other Department of the Navy

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organizations or other Federal agencies may be Volume 5, "Disbursing Policy and Procedures."
required under section 0202.
f. Required facts and opinions. Chapter 6, section
e. Loss investigations: special notice to individuals 0607, Department of Defense Financial Management
affected. In any investigation into a loss of funds or Regulation (DOD 7000.14-R), Volume 5, "Disbursing
property in the custody of an accountable individual, Policy and Procedures," provides specific procedures,
or for the purpose of making an administrative findings and recommendations for investigation of
determination of accountability under section 0167b, major losses of funds due to physical loss, or illegal,
the accountable individual(s) shall, in addition to other incorrect, or improper payment. Command
warnings and advisements required by law or investigations appointed under the JAGMAN are used
regulation, be advised of the following: in the case of major losses of funds, defined as those
losses of $750.00 or more or any physical loss where
(1) The investigation extends to all facts relating to there is evidence of fraud within the accounting
the loss, its causes, its dollar value, and the kinds and function, regardless of the dollar amount. JAGMAN
degrees of individual responsibility for the loss. investigations are not required in the case of minor
losses, defined as losses of less than $750.00 without
(2) The findings of the investigation may be a basis any evidence of fraud internal to the accounting
for any of the following actions that are applicable to function. Chapter 6 of DOD 7000.14-R, Volume 5,
the loss: provides the procedures for investigating and reporting
minor losses. In addition to any specific requirements
(a) Determination of financial liability of the of the appointing order or DOD 7000.14-R,
accountable individual for loss of property or funds investigations into losses or excesses of public funds or
derived from sale of property by the Commander, property must include, at a minimum:
Naval Supply Systems Command, Chief, Bureau of
Medicine and Surgery, or Deputy Chief of Staff for (1) What items were lost or found in excess and
Installations and Logistics, U.S. Marine Corps, as the exact dollar value of the loss or excess, e.g.,
appropriate, under 31 U.S.C. § 3531; property, vouchers, cash, and so forth.

(b) Determination whether relief of liability will (2) The nature of the loss or excess (inventory gain
be granted for physical loss or improper payment of or loss, cash shortage, or overage, etc.) and, in case of
disbursing funds or documents, upon request of the loss of funds, whether the loss was a loss of proceeds
accountable individual, by the Secretary of the Navy or of sale of Government property, a physical loss of
the Comptroller General, under 31 U.S.C. § 3527; funds, or the result of illegal or improper payment.
(Losses due to embezzlement or fraudulent acts of
(c) Determination by the commanding officer to subordinate finance personnel, acting alone or in
hold a non-accountable individual liable for the loss collusion with others, are physical losses, while all
under section 0167. other payments on forged checks or vouchers are
improper payments.)
(3) In loss of funds cases, negligence of the
accountable individual may be presumed by the (3) How the loss or excess is being carried in the
Secretary of the Navy or the Comptroller General if the command's accounts.
loss remains unexplained.
(4) The facts and circumstances surrounding the
(4) The affected individual may present evidence loss or excess, and an opinion as to the cause of the
for the consideration of the investigating officer(s). irregularity or, if the cause cannot be determined, the
The investigating officer(s) may, however, refuse to most likely cause and the reasons it is so considered.
accept evidence that is irrelevant, lacking in probative
value, unduly voluminous, or whose inclusion would (5) The identity and position of the accountable
unduly delay the investigation. officer, and the identity and position of any other
person who had custody of the funds or property in
(5) An accountable individual may request to question.
liquidate voluntarily a loss of disbursing funds under
the applicable provisions of Department of Defense (6) The general reputation of the accountable
Financial Management Regulation (DOD 7000.14-R), individuals for honesty and care in the handling and

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safeguarding of funds or property entrusted to them. (3) "Proximate cause" means the irregularity was
the direct and foreseeable consequence of an act or
(7) The experience and training of the accountable omission, or that the act or omission created the
individual in the handling of funds or property, as conditions for occurrence of the irregularity. A
appropriate, and the workload, including collateral proximate cause is a cause without which the
duties, of the accountable individual at the time of the irregularity would not have occurred.
irregularity.
(4) Burden of proof. There is no burden of proof
(8) A description, with diagrams where on the Government to show fault or negligence on the
appropriate, of the physical working conditions of the part of an accountable individual. The individual is
accountable individual who incurred the loss or excess, automatically accountable for the loss and has the
including a description of physical security burden of establishing that he was not at fault or
arrangements and devices, and security containers and negligent in order to avoid financial liability.
persons with access to them, if applicable, and a Normally, however, investigators and reviewing
statement of whether they were being used properly at authorities should not presume fault or negligence
the time of the irregularity. from the mere fact that an irregularity occurred, except
that negligence may be presumed when a loss of public
(9) A description of the internal control procedures funds is entirely unexplained.
in effect in the division, department, or office where
the irregularity occurred, and a statement whether they h. Distribution. Reports of investigation under this
were being applied properly at the time of the section should be forwarded as described in section
irregularity. If relevant, include information on recent 0218. In addition, reports should be provided as
inspections, assist visits, management control reviews, follows:
or other evaluations of procedures.
(1) For investigations of losses or excesses of
(10) Identification of the regulations pertinent to disbursing funds or documents, a copy, as finally
the handling of the property or funds involved and a reviewed and acted upon per section 0209h, shall be
statement whether the regulations were followed. forwarded to Director, Defense Finance and
Accounting Service, Cleveland Center, Code FFA,
(11) A description of remedial measures taken to 1240 E. 90th Street, Cleveland, OH 44199; and
prevent recurrence of the irregularity.
(2) For investigations of losses or excesses of
(12) An opinion whether the loss or excess was Government property or proceeds from the sale of
proximately caused by the fault or negligence of any Government property, the Commander, Naval Supply
accountable individual or by an act of a non- Systems Command, the Chief, Bureau of Medicine and
accountable individual that can be the basis for Surgery, or the Commandant of the Marine Corps
financial liability under section 0167. (Code LA), as appropriate.

g. Guidelines for determining fault or negligence 0250 CLAIMS FOR OR AGAINST THE
GOVERNMENT
(1) "Fault" means conduct showing bad faith, gross
mismanagement, or neglect of care and may be a. General. An investigation ordered to inquire into
inferred from irregularities resulting from inattention, an incident may, if a claim for or against the
dereliction, or perversity. Government is involved from the same incident, be
ordered to include those considerations required by
(2) "Negligence" means failure to exercise care that Chapter VIII. In such cases, the separate investigation
a reasonable, prudent, accountable person would have required by the claims regulations need not be made,
exercised under the same or similar circumstances. but the "dual purpose" investigation must include the
Failure to know and follow regulations for the care and information necessary for claims adjudication.
safeguarding of public funds or property normally is Combining a claims investigation with an inquiry or
considered negligence, as is failure to follow normal investigation ordered for other reasons is discretionary.
and customary disbursing, collection, or safeguarding Litigation-report investigations shall be used when
procedures or standards without sufficient reason. documentation of the facts in anticipation of a claim is

2-51
the primary purpose of the investigation. Claims often
arise, however, from major incidents investigated by e. Required facts and opinions. Incidents giving rise
courts of inquiry, or from incidents documented by a to claims for or against the Government are
command investigation. The type of investigation investigated using all three JAGMAN investigative
convened must take into account that a command methods, i.e., command investigations, litigation-report
investigation or court of inquiry, once begun, may not investigations, and courts and boards of inquiry.
be protected from subsequent release to the public and While litigation-reports are used to document facts and
use in litigation. CA's should consult the cognizant gather evidence in cases in which the primary interest
judge advocate regarding the type of investigation to is adjudication of a claim or litigation, many incidents
convene in any case in which there is a substantial will be investigated by courts of inquiry or command
possibility of a claim for or against the Government. investigations, particularly when the incident being
When a claim is likely to result from an incident giving investigated involves large scale property damage, loss
rise to an investigation, a copy of the investigation of life, or raises issues concerning the management of
must be provided to JAG and to the cognizant legal naval activities. It is necessary, therefore, that the
service office. Any investigation of an incident which investigating officer consult and work closely with a
may give rise to a claim should document the facts judge advocate who will be able to assist with the
discussed in this section. specific requirements of each case. All investigations
into incidents which may result in claims, however,
b. Procedures when claims matters are involved. must answer the following fundamental questions:
When conducting an investigation into claims matters
the investigator(s) shall be guided by Chapter VIII, and (1) The identity of those involved, including name,
endorsements to the report of investigation shall rank/grade, unit, age, address (home and work),
include any matters required by that chapter. telephone number, occupation, and how they were
Additionally, JAGINST 5890.1 series provides involved, e.g., deceased as a result of the incident (in
detailed guidance regarding claims processing which case, identifying information for the next-of-kin
procedures. or legal representative must be provided, as well),
injured party, owner of property damaged, military
c. Forwarding records. The investigation convened member whose acts or omissions are alleged to have
specifically to document matters that are expected to caused the harm, or witness. The findings of fact
give rise to a claim for or against the Government shall should provide information on how those involved
normally be a litigation-report investigation conducted may be located. Moreover, every attempt should be
under the direction and supervision of a judge made to obtain a permanent address that will be
advocate. As discussed in section 0209, the CA of a accurate for at least 5 years after the accident. Indicate
litigation-report shall retain a copy of the report and for each individual their status as military (in which
forward the original to the Judge Advocate General case indicate Regular or Reserve, on active duty, TAD,
(Code 15) via the staff judge advocate of the GCMCA leave, liberty, and so forth at the time of the incident,
in the chain-of-command. Copies shall be provided to after consulting section 0252 with regard to Reserves)
the servicing legal service office upon completion of or civilian (indicate whether they are a Federal
the CA's endorsement. The commanding officer of the employee, or are a personal services contractor
cognizant naval legal service office is authorized to employed by an independent contractor). If
settle certain claims and will review claims in excess of maintenance or training is involved, identify the
his settlement authority prior to forwarding to JAG. individual responsible for the maintenance or training
The CA will also provide copies to his or her superiors at issue;
in the chain-of-command and other commands which
have a direct official need to know the results of the (2) Date, time, and place of incident, including a
investigation. Chapter VIII and JAGINST 5890.1 full description of location, terrain, weather, light
provide guidance for reports that must be forwarded to conditions, obstructions, and photographs of the site;
higher authority.
(3) Nature of the claim (e.g., wrongful death,
d. Claims arising in foreign countries. Claims that personal injuries, property damage);
arise in foreign countries shall normally be handled
under Chapter VIII, applicable treaties, or international (4) A factual description of what happened, how
agreements. The appointing order shall reference these the parties were injured, what equipment was being
sources for guidance in conducting the investigation. used, who was operating the equipment, who was

2-52
supervising (or should have been supervising), whether purchase, salvage value of property, if any;
equipment failed or was operated incorrectly, if
equipment failure, the maintenance history of the (7) Extent of damage to Government property,
equipment, if the injury occurred on Government estimates or bills of repair and receipts, original
property, the condition of the property, who was purchase price, date of purchase, and salvage value of
responsible for the property's upkeep, the authority for property, if any. If no damage, so state;
the injured party to be present on Government
property; (8) Whether the claimant has insurance for this
type of damage or injury, the insurance company,
(5) The nature and extent of personal injuries, if policy number, policy provisions relevant to this claim
any: or incident, extent of coverage, limits on liability,
whether a claim has been or will be made against the
(a) amount of medical, dental, and hospital insurance carrier, the status of any such claim;
expenses incurred, supported by itemized bills or
receipts for payment; (9) Names and addresses of other owners, if
claimant is not the sole owner of the property;
(b) nature and extent of treatment, e.g., the
number of days hospitalized, the name and address of (10) Existence of any police or other investigative
all treating hospitals and medical facilities, the name(s) report, name and address of investigating officer and
and addresses of all treating physicians or other care unit, custodian of original investigation (provide a
givers, extent and nature of all follow-on or outpatient copy of any police report as an enclosure);
care;
(c) prognosis; (11) Whether civilian or military criminal charges
were filed, the jurisdiction in which they were filed,
(d) degree of disability, if any (e.g., total, partial and the status or final disposition of those charges;
permanent, partial nonpermanent, describe limits of
use); (12) Existence of any law, regulation, or order
relevant to the incident and whether it was violated;
(e) diminished earning capacity, if any;
(13) If a stray animal was involved, whether the
(f) Necessity for future treatment and estimated jurisdiction has an "open range" law (attach a copy as
costs, if any; an enclosure);

(g) Salary/earnings lost due to time lost from (14) An opinion whether any military personnel
employment (e.g., actual number of work days lost, involved were acting in the scope of their employment
estimated compensation for that period based on at the time of the incident;
hourly wage or salary), indicate full time, part-time, or
self-employed; (15) An opinion regarding the cause(s) of the
incident. If the facts are insufficient to form an
(h) If an individual died as a result of the opinion regarding the cause(s), indicate those factors
incident under investigation and the estate or survivors which significantly contributed to the incident;
file a claim against the Government, consult with a
judge advocate regarding the wrongful death or (16) An opinion regarding fault or negligence;
survival statute applicable in the jurisdiction where the
harm occurred. Document the time of death relative to (17) An opinion whether a claim is likely to be
the injury, intervening treatment and state of filed, the amount likely to be claimed, and the names
consciousness, cause of death as established by and addresses of any potential claimants and their legal
autopsy, pre-existing medical conditions, age, representatives, if any; and
occupation, burial expenses, and heirs;
(18) Whether a claim should be filed by the
(6) Amount of property damage, including Government for personal injuries to its employees or
photographs before and after, if possible, and estimates property damage.
or bills of repair and receipts, whether any pre-existing
damage existed, original purchase price, date of f. Sonic booms/jet noise/artillery noise. The nearest

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Navy or Marine Corps aviation activity receiving
notice that a sonic boom occurred within the United (i) type of surrounding community development,
States, regardless of whether damage was reported, is type of construction, and density of buildings or
responsible for an inquiry to determine whether a structures in the immediate area, and so forth;
military aircraft caused the disturbance. The inquiry
shall include queries to all Navy, Marine Corps, Air (j) occurrence or absence of seismic disturbances
Force, Air National Guard, and other military facilities registered in the locality at the time involved;
in the area where supersonic aircraft operate. All
traffic, transient as well as local, shall be checked. (k) other potential sources of damage, such as
heavy truck or rail traffic, explosions or earthquakes,
(1) The principal types of damage caused by a and their distance and direction in relation to claimant's
sonic boom are glass and plaster damage. Less building or structure;
frequently, claims are received for damage allegedly
caused to brick walls, driveways, concrete foundations, (l) any unusual weather or climatic conditions
and other major structural elements. Studies have that may have affected the building or structure;
shown that it is almost impossible for a sonic boom to
generate over-pressures of sufficient intensity to cause (m) complete physical description of the aircraft
such structural damage regardless of the aircraft's alleged to have caused the damage, including
altitude. Whenever questionable items of damage are markings, whether jet or propeller driven, and any
claimed, the services of a construction engineer or other distinctive characteristics;
other professionally qualified person should be
employed as investigator or as consultant to the (n) full description of the approximate altitude,
investigator. The following information shall be maneuvers, speed, direction of flight, time of day, date,
included in any investigative report regarding sonic formation and number of aircraft;
booms, jet noise, or artillery noise:
(o) any complaints of noise or sonic booms
(a) detailed description of alleged damage; received by any duty office which coincides with the
alleged damage; and
(b) photographs of the allegedly damaged
building or structure and of the specific area of (p) authorization, description of flight, aircraft
damage; involved, applicable charts, and air controller
transcripts or audiotapes of aircraft in the vicinity of
(c) detailed description of the building or the alleged damage.
structure involved, including significant details of
construction, size of rooms, age, and general state of (2) If, after investigation, it is considered that a
repair; sonic boom, jet noise, or artillery noise incident
occurred and it resulted from Navy or Marine Corps
(d) detailed examination and description of any operations, action shall be taken under Chapter VIII. If
alleged plaster damage; it is considered that the sonic boom, jet noise, or
artillery noise was caused by activities of another U.S.
(e) existence or absence of glass damage in the military service, claims received, and any investigative
allegedly damaged building or structure and whether material shall be forwarded to the appropriate
any other glass damage resulting from the incident was command, and the claimant so informed. If the sonic
reported and verified; boom or noise was caused by non-military activities
(e.g., National Aeronautics and Space Administration,
(f) whether windows and doors were open or aircraft manufacturers) or if the source cannot be
shut at the time of the boom; determined, action shall be taken under Chapter VIII.
Opinions as to the cause of a sonic boom, jet noise, or
(g) whether any loose objects, such as dishes, artillery noise, shall not be expressed to a complaining
glassware, or trinkets inside the building or structure party, except by a person authorized to negotiate the
were moved as the result of the boom; settlement of the claim.

(h) existence or absence of similar damage to 0251 HEALTH CARE INCIDENTS

other buildings in the immediate neighborhood;

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 a. General
(d) When necessary to assist convening and
(1) Incidents arising out of the delivery of health reviewing authorities in making decisions concerning
care in a military treatment facility shall be the delivery of health care. In this regard, the impact
investigated in accordance with this section. The of the following should be taken into consideration:
purposes of the investigation are to gather all facts
pertinent to the incident, to determine the cause and 1. training of health care personnel;
contributing factors to the incident, and to ascertain the
nature and extent of injuries suffered as a proximate 2. design or maintenance of material or
result of the incident. Investigations under this section equipment;
are separate from any quality assurance investigation
conducted by the staff of the military treatment facility 3. assignment and qualifications of
solely for quality assurance purposes. See paragraph b personnel;
below. Most health care incidents should be
documented by a command investigation, or if a claim 4. supervision of trainees; and
is anticipated, a litigation-report investigation.
5. health care delivery policies (or the lack
(2) Health care investigations shall be convened in thereof);
the following circumstances:
b. Relationship to medical quality assurance program
(a) when a claim has been filed against the
United States, its officers, or its employees as a result (1) The Chief, Bureau of Medicine and Surgery,
of a health care incident. Incidents involving
Government contractors and their employees should has issued guidance concerning the health care quality
also be investigated if it is likely that the United States assurance program in NAVMEDCOMINST 6320.7
may be joined or impleaded as a party to a lawsuit, or series. Records created as a part of the quality
where a claim under a contract between the United assurance program are privileged documents under 10
States and the contractor is likely. U.S.C. section 1102.

(b) in any case involving death, or a (2) Although health care investigations are not
potentially compensable event, where the adequacy of created as part of the quality assurance program, and
health care rendered by Government employees or therefore are not entitled to the confidentiality and
provided in a military treatment facility (MTF) is privilege mentioned above, they may be used as input
reasonably in issue. Potentially compensable events to the quality assurance review process.
include:
(3) Inquiries into the circumstances surrounding a
1. unexplained death (including apparent health care incident done exclusively for quality
suicide); assurance purposes should be clearly labeled as such.
Such inquiries are not subject to the requirements of
2. any complication in treatment which this chapter.
results in: corrective procedure; brain damage; motor
weakness; sensory nerve injury; total or partial loss of c. Required facts and opinions. The scope of the
limb; sensor organ loss or impairment; or reproductive health care investigation will vary depending upon the
organ loss or impairment; nature and circumstances of the incident under review.
The following information shall be included in the
3. inadvertent blood transfusion with report of investigation into a health care incident:
HIV or hepatitis-virus contaminated blood;
(1) a comprehensive chronology and description of
4. procedure performed on wrong patient all relevant facts;
or body part (including extraction of the wrong tooth);
(2) identification of all involved health care
(c) When necessary to make administrative providers, including their credentials (education,
determinations, other than actions involving clinical training, and experience), status (trainee or staff;
privileges concerning health care personnel. Government employee or contractor), and role

2-55
(attending, consulting, or supervision). Of primary reviewed to assess whether the original interpretations
importance is the full identification of the staff were accurate. If possible, retrospective reviews must
physician responsible for the patient's care at the time be structured as "blind" reviews, i.e., the reviewer
of the incident. The findings of fact or enclosures should not be aware of the previous interpretation. A
should provide information on how those providers summary containing the name and credentials of the
involved may be located. Every attempt should be person conducting the retrospective review and that
made to obtain a permanent address. If maintenance of person's findings must be included with the
equipment or training of personnel is involved, identify investigation. The summary should not be signed by
the individual(s) responsible for the maintenance or the reviewer;
training at issue;
(7) Copies of all relevant documents, including:
(3) patient information, including medical history,
condition immediately prior to incident under review, (a) the MTF staff bylaws;
and current condition supported by all relevant medical
records. Included in this information should be the (b) all relevant MTF policies, procedures, and
following: protocols (clinical/surgical, nursing, and ancillary
services such as the laboratory or pharmacy, and health
(a) the patient's name, date of birth, age, sex, care administrative policies) in effect at the time of the
address, phone number, marital status, occupation, and incident that might have a bearing on the issues;
dependents;
(c) all relevant logbook entries pertaining to the
(b) nature and extent of injuries alleged to have patient maintained by labs/clinics/offices (i.e.,
occurred, special damages, additional treatment emergency room logs reflecting arrival/departure
required, prognosis, degree of disability, loss of chance times, ambulance log book/trip sheets/rescue service
of recovery, if any, and the names and addresses of reports, and centralized appointment registers/print-
subsequent treating physicians or health care providers, outs or pharmacy history printouts); and
if any; and
(d) all patient information pamphlets, brochures,
(c) in instances where a claim has been received or sheets which were provided to the patient.
or the patient has verbally indicated an intent to file a
claim, any interviews with the claimant or other family (8) In cases involving contract providers, a copy of
members should be summarized, and signed by the the contract. Notifying a contractor that a claim exists
potential claimant, if possible. Prior to any contact or a potentially compensable event has occurred must
with a claimant or potential claimant, the investigating be coordinated with the contractor's representative and
officer shall clear such contact with the cognizant the legal advisor to the command. Attach a statement
judge advocate. to the investigation indicating the action taken
regarding notification to a contractor, and include a
(4) A copy of the claim and any other documents copy of any written notification that may have been
or correspondence which shed light on the claimant's provided;
or potential claimant's contentions concerning the
matter; (9) For incidents involving possible
equipment/device failure, include the following:
(5) A statement indicating all of the medical
records, inpatient, outpatient, and special studies (a) photographs of equipment / devices taken
(x-rays, tissue slides, EKG tapes, fetal monitoring before the equipment/device is moved, used again,
strips, etc.) have been secured. The investigation must altered, tested, or repaired. Photographs must be
indicate the date and person who secured those items annotated to reflect the time, date, and identity of the
and the current location and custodian of each. Copies person who took the photograph;
of the complete medical record must be included with
the investigation. Entries must be reviewed to ensure (b) the date, location, and names of the persons
handwriting is legible and, if illegible, typed transcripts involved in the evaluation of the equipment/device and
should be attached to the investigation; the findings thereof. Equipment / devices must be
removed from service and secured until examined by
(6) All special studies must be retrospectively appropriate technical representatives. Equipment /

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devices must not be used, altered, tested, or repaired inclusion in the investigation. The investigating officer
until properly evaluated; and should summarize the results of the interview using
care to be as accurate and complete as possible.
(c) copies of maintenance reports and any Summaries of interviews with providers shall not be
protocols for the maintenance and repair of the signed but authenticated by the investigating officer's
equipment/device in question at the time of the signature.
incident.
0252 RESERVISTS
(10) Results of a review of the staffing levels
(physician, nursing, corpsman, and ancillary) at the a. Statutory provisions. 10 U.S.C. section 1074a
time of the incident. Include in the review the governs entitlement to medical and dental care
"currency" of the members to perform their duties at administered by the Navy for persons in the Navy who
the time of the incident and their "orientation" to incurred or aggravated an injury, illness, or disease
perform the duties assigned at the time of the incident; while performing active duty or annual training for a
period of 30 days or less, or inactive-duty training (or
(11) A statement of the standard of care for any while traveling directly to or from such duty).
practices, procedures, policies, protocols, or systems
involved in the incident and the basis which establishes b. Annual training. The period of annual training
that standard of care (provide a copy of relevant extends from the time of reporting to the time of
medical literature, texts, treatises, articles, policies, release, and, if the orders to active duty for training
practices, or procedures). This refers to provide for travel, the time of travel to and from the
clinical/surgical procedures, nursing procedures, duty station not in excess of the allowable constructive
ancillary services such as the medical laboratory or travel time as prescribed in paragraphs 10241 and
pharmacy procedures, and health care administrative 80211, DODPM.
policies. The source and date of documents relevant to
the standard of care must be provided; c. Investigation. Incidents involving injury or death
of reservists occurring during a period of annual
(12) Summaries of expert reviews of the care training or inactive duty training (drill), as defined
documented by the investigation. The summary must: above, or that occur while traveling directly to or from
places where members are performing or have
(a) identify the reviewer and the reviewer's performed such duty, or any case involving a question
credentials, and contain an evaluation (i.e., expert of whether a disease or injury was incurred during a
opinion) describing the duty that was owed the patient period of annual training, inactive duty training (drill),
(standard of care); or travel, as defined above, should be investigated.
The area coordinator or designated subordinate
(b) indicate the manner in which the duty commander in whose geographic area of responsibility
was either met or not met; the incident occurred has the responsibility to ensure
that investigations are conducted into incidents
(c) in instances in which the duty was not involving naval reservists. The Commanding General,
met, provide an opinion on whether the act or omission 4th Marine Division, and the Commanding General,
resulted in harm to the patient and, if so, a 4th Marine Aircraft Wing, are responsible for ensuring
description of the harm, including an explanation of that investigations are conducted into incidents
how the harm may affect the patient in the future; and involving reservists within their commands.

(d) where there has been a deviation from the d. Required facts and opinions. An investigation
standard of care, the summary must contain an opinion involving Reserve personnel should include:
regarding the cause(s) or contributing factors for any
deviation from the standard, the name(s) of persons (1) Hour the reservist began travel directly to or
responsible for the deviation, and a description of from duty or training;
corrective action, if required, in terms of personnel,
equipment, or policy. (2) Hour the reservist was scheduled to arrive for,
or at which he ceased performing, that duty or training;
(13) Each provider whose actions are at issue must
be provided an opportunity to make a statement for (3) Method of travel used;

2-57
 litigation-report investigation should normally be
(4) Actual itinerary and authorized itinerary; convened, unless the event amounts to a major incident
requiring a court of inquiry. The following
(5) Authorized mode of travel and authorized travel information shall be included in the report of
time; investigation of pollution incidents and spills:

(6) Manner in which travel was performed; and (1) Location and circumstances of the spill,
including the weather and conditions at the site
(7) Place, time, and circumstances of injury or (visibility, darkness, presence/phase of the moon, how,
death. when, and by whom the spill was detected);

0253 FIREARM ACCIDENTS (2) Description of the activity occurring when the
spill occurred (e.g., shifting fuel, taking on fuel,
a. General. A command investigation shall normally pumping bilges);
be used to document all relevant circumstances of
incidents involving accidental or apparently self- (3) Type of material (e.g., fuel, oil, other hazardous
inflicted gunshot wounds. material);

b. Required facts and opinions. An investigation (4) Estimated quantity of material spilled and the
involving firearm accidents shall include: basis for the estimate;

(1) Date, time of day, and names and addresses of (5) Source of the spill, e.g., tank, drum, or valve;
witnesses present;
(6) Identity of personnel involved including name,
(2) Description of physical location of incident and rank/grade, unit, address (home and work), age,
light and weather conditions; training and experience for task, and who was (or
should have been) providing supervision;
(3) Description of the firearm and its mechanical
condition, especially safety mechanisms, and whether (7) Whether required reports were made (e.g.,
the safety mechanisms were used by the firearm reports required by OPNAVINST 5090.1 series,
handler; reports to the National Response Center, reports
required by state and local law, reports to the Navy
(4) Authorization for possession of the firearm, operational chain-of-command, and reports under the
including how, when, and where it was obtained; Emergency Planning and Community Right-To-Know
Act (EPCRA);
(5) Description of firearm handler's formal training,
experience, and familiarity with the firearm's (8) Whether local SOPA and command
condition, safety procedures, and proper use; and instructions were complied with;

(6) Discussion of any psychological problems, (9) Description of cleanup, including membership
mental impairment due to drug or alcohol use, and of the quick response team, training, response time,
mental responsibility of the firearm handler. actions taken, equipment used, effectiveness of
equipment and personnel, availability and readiness of
0254 OTHER INCIDENTS equipment and personnel;

a. Pollution Incidents. When pollution incidents are (10) Nature and extent of damages to Government
required to be investigated because of service and private property;
regulations (other than the JAGMAN) or because of
applicable Federal, State, or local laws or regulations, a (11) Personal injuries, if any, including name of
copy of any report should be submitted directly to the injured parties and extent of injuries (see section 0250
Judge Advocate General and the geographic regarding claims);
environmental coordinator as set out in OPNAVINST
5090.1 series. Further guidance concerning pollution (12) Attach copies of relevant training documents
incidents is contained in JAGMAN Chapter XIII. A (e.g., Personnel Qualification Standard (PQS) records),

2-58
deck/watch logs, and engineering logs which support
the facts; and

(13) An opinion regarding the cause of the spill,

e.g., faulty equipment, container, fitting, valve,
operator error/safety, or operational procedure error.

b. Combined investigations of maritime incidents.

For maritime incidents involving two or more NATO
countries, commands may conduct a single investi-
gation under NATO Standardization Agreement 1179
(STANAG). This sets forth three alternative
investigation procedures: (1) combined board of
inquiry; (2) national inquiry, attended by witnesses or
observers from other nations; and (3) independent
inquiries coordinated by the presidents of those
inquiries.

c. Security violations. For specific investigation

requirements respecting investigations ordered to
inquire into the loss, compromise, or possible
compromise of classified information, see
SECNAVINST 5510.36, Chapter 12. Such reports are
sent to CNO (N09N) as ultimate addressee. A
command investigation shall normally be used.

d. Postal violations. For specific investigation

requirements respecting investigations ordered to
inquire into postal losses or offenses, see paragraph
601, Department of the Navy Postal Instructions,
OPNAVINST 5112.6 series. In such cases, command
investigations may be convened.

e. Allegations of discrimination or sexual

harassment. Investigations of alleged discrimination or
sexual harassment, including reporting and review
procedures, are governed by OPNAVINST 5354.1
(series). Similar Marine Corps investigations are
governed by MCO 5354.1 (series).

2-59
 DEFINITIONS

1. Administrative Investigation. Administrative investigations collect and record information. Their reports
are advisory. Their opinions, when expressed, do not constitute final determinations or legal judgments, and
their recommendations, when made, are not binding upon convening or reviewing authorities.

2. Class A Aircraft Accident. A mishap involving an aircraft that results in

a. loss of life or permanent total disability which occurs with direct involvement of naval aircraft;

b. damages to the aircraft, other property, or a combination of both, in an amount in excess of the
amount specified by the Secretary of Defense for purposes of determining Class A accidents (In 1996, this
amount was set at $1,000,000. See DODINST 6055.7 series); or

c. the destruction of the aircraft.

3. Clear and Convincing Evidence. A degree of proof beyond a preponderance but less than the near
certainty of beyond a reasonable doubt. It means that the truth of the facts asserted is highly probable. To be
clear and convincing, evidence must leave no serious or substantial doubt as to the correctness of the
conclusion in the mind of objective persons after considering all the facts.

4. Cognizant Judge Advocate. The judge advocate (see definition below) who, by regulation or practice, is
responsible for providing legal advice to the concerned convening or reviewing authority. This often will be
a station, staff, fleet, or force judge advocate but may also include the command services or claims officer at
the servicing legal/trial service office.

5. Command Investigation. An administrative investigation conducted into an incident of primary interest

to command authorities. It need not be forwarded to JAG.

6. Intoxication. A state of impairment of the mental or physical faculties that prevents their rational and full
exercise. Whether the impairment is caused by ingesting liquor or drugs, or by inhaling fumes or vapors, is
immaterial.

7. Judge Advocate. As used in this chapter, the term ordinarily refers to a military lawyer, but may include
attorneys assigned to the Office of the Navy General Counsel.

8. Litigation-Report Investigation. An administrative investigation conducted under the direction and

supervision of a judge advocate in anticipation of litigation or claims. All litigation-report investigations
must be forwarded to JAG.

A-2-a(1)
9. Major Incident. An extraordinary incident occurring during the course of official duties resulting in
multiple deaths, substantial property loss, or substantial harm to the environment where the circumstances
suggest a significant departure from the expected level of professionalism, leadership, judgment,
communication, state of material readiness, or other relevant standard. Substantial property loss or other
harm is that which greatly exceeds what is normally encountered in the course of day-to-day operations.
These cases are often accompanied by national public and press interest and significant congressional
attention. They may also have the potential of undermining public confidence in the naval service. That the
case is a major incident may be apparent when it is first reported or as additional facts become known.

10. Mishap unit. The unit of the armed forces (at the squadron or battalion level or equivalent) to which
was assigned the flight crew of the naval aircraft that was involved in the accident that is the subject of the
investigation.

11. Person. For the purposes of this chapter, a person is an individual, not an organization or corporation.

12. Personal Information. In the context of Privacy Act requirements, personal information is information
about an individual that is intimate or private to the individual, as distinguished from information related
solely to the individual's official functions or public life. It includes information pertaining to an individual's
financial, family, social, and recreational affairs; medical, educational, employment, or criminal history; and
information that identifies, describes, or affords a basis for inferring personal characteristics, such as finger
or voice prints or photographs. It ordinarily does not include information associated with an individual's
actions or inactions that are directly related to the duties of Federal employment or military assignment.

13. Preponderance of Evidence. A preponderance is created when the greater weight of evidence, or
evidence that is more credible and convincing to the mind, is offered in support of, rather than in opposition
to, any given fact. Weight of evidence in favor of establishing a particular fact is not to be determined by the
sheer number of witnesses or volume of evidentiary matter presented on either side, but by that evidence that
best accords with reason and probability.

14. Proximate Cause. That which, in a natural and continuous sequence, unbroken by any significant
intervening factor, causes an event, and without which the result would not have occurred. For example, if a
sailor voluntarily becomes intoxicated and then wilfully exceeds the speed limit by 30 mph, loses control of
his vehicle, crashes into a tree and, as a result, suffers severe injury, then his voluntary intoxication may be
said to be the proximate cause of his injury. Conversely, if another sailor voluntarily becomes intoxicated,
begins to drive home, is struck by another vehicle which failed to yield the right of way at an intersection
and, as a result, suffers severe injury, then her voluntary intoxication cannot be said to be the proximate
cause of her injury.

15. System of Records. In the context of the Privacy Act, a system of records is a group of records under
the control of the Department of the Navy from which information is retrieved by an individual's name or
some identifying number or symbol.

A-2-a(2)

PARTIES--DEFINITIONS AND RIGHTS

 a. Party. A "party" is an individual who has properly been so designated in connection with a court of inquiry or a
board of inquiry required to conduct a hearing whose conduct is either the subject of the inquiry or has a direct
interest in the inquiry. No individual has a right to demand a court of inquiry.

b. Subject to Inquiry. A person's conduct or performance of duty is "subject to inquiry" when the person is
involved in the incident or event under investigation in such a way that disciplinary action may follow, the person's
rights or privileges may be adversely affected, or the person's reputation or professional standing may be
jeopardized.

c. Direct Interest. A person has a "direct interest" in the subject of inquiry:

(1) When the findings, opinions, or recommendations of the fact-finding body may, in view of the person's
relation to the incident or circumstances under investigation, reflect questionable or unsatisfactory conduct or
performance of duty; or

(2) When the findings, opinions, or recommendations may relate to a matter over which the person has a duty or
right to exercise official control.

d. Rights. A person duly designated a party before a fact-finding body shall be advised of and accorded the
following rights:

(1) To be given due notice of such designation.

(2) To be present during the proceedings, but not when the investigation is cleared for deliberations.

(3) To be represented by counsel.

(4) To examine and to object to the introduction of physical and documentary evidence and written statements.

(5) To object to the testimony of witnesses and to cross-examine adverse witnesses.

(6) To introduce evidence.

(7) To testify as a witness.

(8) To refuse to incriminate oneself; and, if accused or suspected of an offense, to be informed of the nature of
the accusation and advised of the right not to make any statement regarding the offense of which accused or
suspected; and that any statement made may be used as evidence in a trial by court-martial.

(9) To make a voluntary statement, oral or written, to be included in the record of proceedings.

(10) To make an argument at the conclusion of presentation of evidence.

(11) To be properly advised concerning the Privacy Act of 1974.

(12) To challenge members.

A-2-b
SAMPLE COMMAND INVESTIGATION CONVENING ORDER
 Ser Info
Date

From: Commanding Officer, Headquarters Battalion, Marine Corps Base, Camp Pendleton, CA
To: Captain , USMC

Subj: COMMAND INVESTIGATION OF THE FIRE THAT OCCURRED AT ON

__ AUGUST 2000

Ref: (a) JAG Manual

1. This appoints you, per chapter II of reference (a), to inquire into the facts and circumstances
surrounding the fire that occurred at __________ on __ August 19__.

2. Investigate the cause of the fire, resulting injuries and damages, and any fault, neglect, or
responsibility therefore, and recommend appropriate administrative or disciplinary action. Report your
findings of fact, opinions, and recommendations in letter form by __ September 19__, unless an extension
of time is granted. If you have not previously done so, read chapter II of reference (a) in its entirety
before beginning your investigation.

3. You may seek legal advice from _________________ during the course of your investigation.

4. By copy of this appointing order, Commanding Officer, Headquarters Company, is directed to furnish
necessary clerical assistance.

____________________________
Colonel, U.S. Marine Corps

Copy to:
CG, MCB CamPen, CA
CO, HQCo, HQBn, MCB, CamPen, CA

A-2-c(1)
 SAMPLE COMMAND INVESTIGATION REPORT

Ser Info
Date

From: Captain , USMC

To: Commanding Officer, Headquarters Battalion, Marine Corps Base, Camp Pendleton, CA

Subj: SAME AS SUBJECT ON CONVENING ORDER

Encl: (1) Appointing order and modifications thereto (if any were issued)
(2) Summary (or verbatim) of sworn (or unsworn) testimony of _______ (a witness)
(3) Summary (or verbatim) of sworn (or unsworn) testimony of________ (a witness)
(4) Statement of______________, signed by witness
(5) Description of (evidence found at scene of the accident)
(6) Photograph of depicting

NOTE: Testimony of each witness, observations of the investigator, photographs, diagrams, and suitable
reproductions of tangible evidence should be listed and attached as enclosures to the investigative report.
The location of all original evidence, such as logs, charts, tangible items, and so forth, and the name and
phone number of the official responsible for its safekeeping must be stated in the report, either on each
enclosure or in the preliminary statement.

Preliminary Statement

1. Paragraph 1 of an investigative report must contain information in the form of a "preliminary

statement." Contents may require continuation in one or more additional paragraphs. In general, see
section 0217(c) for required contents. Where applicable, an investigating officer should indicate the
name and organization of any judge advocate consulted. Extensions of time to complete the report should
be noted here. Also state in appropriate cases that the matter was first referred to NCIS and NCIS
expressed no objection to proceeding with the investigation.

Findings of Fact

1. [encls ( ), ( )]

2. [encls ( ), ( )]

3. [encl ( )]

Note: Findings of fact constitute an investigating officer's description of details of events based on
evidence. Findings must be as specific as possible about time, places, and persons involved. Each fact
may be made a separate finding. An investigating officer may determine the most effective presentation
for a particular case. Each fact must be supported by testimony of a witness, statement of the
investigating officer, documentary evidence, or tangible (real) evidence attached to the investigative
report as an enclosure. Each finding of fact should reference each enclosure that supports it.

A-2-c(2)
Opinions

1. [FF ( )]

2. [FF ( )]

3. [FF ( )]

Note: An opinion is a reasonable evaluation, reference, or conclusion based on facts found. Each opinion
must be supported by findings of fact. Determination of line of duty and misconduct is properly stated as
an opinion.

Recommendations

1.

2.

3.

Note: If an investigating officer recommends trial by court-martial, a charge sheet drafted by the
investigating officer may be prepared and submitted to the convening authority with the investigative
report. See R.C.M. 307, MCM, 1984. The charge sheet should not be signed; i.e., charges should not
be preferred since preferral starts the "speedy trial clock" running. Before preferring charges, the
local legal service office or staff judge advocate should be consulted. Unless specifically directed by
proper authority, an investigating officer must not notify an accused of charges. Notification is the
responsibility of the commanding officer of an accused. See R.C.M. 308 and 707, MCM, 1984. If a
punitive letter of reprimand or admonition is recommended, a draft of the recommended letter must be
prepared and forwarded with the investigative report. Proposed nonpunitive letters of caution must not be
forwarded with the report. See section 0218.

(SIGNATURE OF INVESTIGATING OFFICER)

A-2-c(3)
 SAMPLE LITIGATION-REPORT INVESTIGATION APPOINTING ORDER

Ser Info
Date

From: Commanding Officer, Naval Submarine Base New London

To: Lieutenant , USN

Subj: LITIGATION-REPORT INVESTIGATION OF THE FIRE THAT OCCURRED

AT QUARTERS XYZ, NAVSUBBASE NLON, ON ___ AUGUST 20__

Ref: (a) JAG Manual

1. Per reference (a), you are hereby appointed to investigate the circumstances surrounding the fire that
occurred at Quarters XYZ, Naval Submarine Base New London on __August 19__, and to prepare the
related litigation-report. During the investigation, you will be under the direction and supervision of
LCDR ____________, JAGC, USN. Consult LCDR _____________ before beginning your inquiry or
collecting any evidence. If you have not already done so, you should also read chapter II of reference (a)
in its entirety before consulting LCDR ______________ .

2. This investigation is being convened and your report is being prepared in contemplation of litigation
and for the express purpose of assisting attorneys representing interests of the United States in this matter.
As such it is privileged and should be discussed only with personnel who have an official need to know
of its progress or results. If you have any doubt about the propriety of discussing the investigation with
any particular individual, then you should seek guidance from LCDR ____________ before doing so.

3. Investigate all facts and circumstances surrounding the fire, including the cause of the fire, resulting
injuries and damages, and any fault, neglect, or responsibility therefore. Report your findings to LCDR
______________ by __ September 20__, unless an extension of time is granted. Do not express any
opinions or recommendations unless LCDR ___________ directs you to do so. Label your report "FOR
OFFICIAL USE ONLY: ATTORNEY WORKPRODUCT," and take appropriate measures to
safeguard it.

_______________________________

Copy to:
COMSUBGRU TWO

A-2-d(1)
 SAMPLE LITIGATION-REPORT INVESTIGATION
FOR OFFICIAL USE ONLY: ATTORNEY WORKPRODUCT

Ser data
Date

From: LCDR , JAGC, USN

LT ____________________________________, USN

To: Commanding Officer, Naval Submarine Base New London

Subj: SAME AS SUBJECT ON CONVENING ORDER

Encl: (1) Appointing order and modifications thereto (if any were issued)
(2) Summary of statement of witness (Do not include signed statements)
(3) Summary of statement of witness
(4) Description of (evidence found at scene of the fire)
(5) Photograph of depicting _______________

NOTE: Summarized statement of each witness, observations of the investigator, photographs, diagrams,
and suitable reproductions of tangible evidence should be listed and attached as enclosures to the
investigative report. The location of all original evidence, such as logs, charts, tangible items, and so
forth, and the name and phone number of the official responsible for its safekeeping must be stated in the
report, either on each enclosure or in the preliminary statement.

Preliminary Statement

1. Paragraph 1 of a litigation report must contain information in the form a "preliminary statement."
Contents may require continuation in one or more additional paragraphs. The name and organization of
the supervisory judge advocate should be listed and the following language should be added: "This
investigation is being conducted and this report is being prepared in contemplation of litigation and for
the express purpose of assisting attorneys representing interests of the United States in this matter."

Findings of Fact

1. [encl ( )]

2. [encls ( ), ( )]

3. [encl ( )]

Note: Findings of fact constitute an investigating officer's description of details of events based on evidence.
Findings must be as specific as possible about time, places, and persons involved. Each fact may be made a
separate finding. An investigating officer may determine the most effective presentation for a particular
case. Each fact must be supported by the statement of a witness, statement of the investigating officer,
documentary evidence, or tangible (real) evidence attached to the investigative report as an enclosure. Each
finding of fact should reference each enclosure that supports it.

A-2-d(2)
Opinions and Recommendations are not made by the investigating officer unless directed by the
supervisory judge advocate. Before the report is submitted to the convening authority, however, the
supervisory judge advocate should normally add appropriate opinions and recommendations and may
request the assistance of the investigating officer in drafting them. Each opinion must be supported by
findings of fact, and each recommendation must be supported by an opinion.

_______________________________________
(SIGNATURE OF INVESTIGATING OFFICER)

________________________________________
(SIGNATURE OF SUPERVISORY JUDGE
ADVOCATE)

A-2-d(3)
 SAMPLE PRIVACY ACT STATEMENT FORMAT--JAG MANUAL INVESTIGATION

1. AUTHORITY: 44 U.S.C. § 3101; 5 U.S.C. § 301. Specify, if possible, other statutory authority listed below
that is peculiarly applicable to the matter under investigation.

Authorities applicable to various investigations:

a. Requirement that enlisted members make up time lost due to misconduct or abuse of drugs or alcohol. 10
U.S.C. § 972.

b. Retirement or separation for physical disability. 10 U.S.C. §§ 1201-1221.

c. Manual for Courts-Martial.

d. Uniform Code of Military Justice. 10 U.S.C. §§ 815, 832, 869, 873, 935, 936, and 938-940.

e. Military Claims Act. 10 U.S.C. § 2733.

f. Foreign Claims Act. 10 U.S.C. §§ 2734, 2734a, 2734b.

g. Emergency payment of claims. 10 U.S.C. § 2736.

h. Non-Scope claims. 10 U.S.C. § 2737.

i. Duties of Secretary of the Navy. 10 U.S.C. § 5013.

j. Duties of the Office Chief of Naval Operations. 10 U.S.C. §§ 5031-5033, 5035-5036.

k. Duties of the Bureaus and Offices of the Department of the Navy and duties of the Judge Advocate
General. 10 U.S.C. §§ 5021-5024, 5131-5133, 5135, 5137-38, 5141-5142a, 5148-5150.

l. Duties of the Commandant of the Marine Corps. 10 U.S.C. § 5043.

m. Reservists' disability and death benefits. 10 U.S.C. § 1074.

n. Requirement of exemplary conduct. 10 U.S.C. § 5947.

o. Promotion of accident and occupational safety by Secretary of the Navy. 10 U.S.C. § 7205.

p. Admiralty claims. 10 U.S.C. § 7622-7623.

q. Federal Tort Claims Act. 28 U.S.C. §§ 1346, 2671-2680.

r. Financial liability of accountable officers. 31 U.S.C. §§ 3521, 3527, 3531.

s. Military Personnel and Civilian Employees' Claims Act of 1964. 31 U.S.C. §§ 240-243.

t. Federal Claim Collection Acts. 31 U.S.C. §§ 3521, 3526, 3529, 3701-3702, 3717-3718.

u. Forfeiture of pay for time lost due to incapacitation caused by alcohol or drug use. 37 U.S.C. § 802.

v. Eligibility for certain veterans' benefits. 38 U.S.C. § 105.

A-2-e(1)
 w. Postal claims. 39 U.S.C. §§ 406, 2601.

x. Medical Care Recovery Act. 42 U.S.C. §§ 2651-2653.

y. Public Vessels Act. 46 U.S.C. §§ 781-790.

z. Suits in Admiralty Act. 46 U.S.C. §§ 741-752.

aa. Admiralty Extension Act. 46 U.S.C. § 740.

bb. Transportation Safety Act. 49 U.S.C. § 1901.

2. PRINCIPAL PURPOSE(S): The information which will be solicited is intended principally for the following
purpose(s):

[Specify each purpose listed below for which the record of the particular investigation could reasonably be used:]

a. Determinations on the status of personnel regarding entitlements to pay during disability, disability
benefits, severance pay, retirement pay, increases of pay for longevity, survivor's benefits, involuntary extensions of
enlistments, dates of expiration of active obligated service, and accrual of annual leave.

b. Determinations on disciplinary or punitive action.

c. Determinations on liability of personnel for losses of, or damage to, public funds or property.

d. Evaluation of petitions, grievances, and complaints.

e. Adjudication, pursuit, or defense of claims for or against the Government or among private parties.

f. Other determinations, as required, in the course of naval administration.

g. Public information releases.

h. Evaluation of procedures, operations, material, and designs by the Navy and contractors, with a
view to improving the efficiency and safety of the Department of the Navy.

3. ROUTINE USES: In addition to being used within the Departments of the Navy and Defense
for the purpose(s) indicated above, records of investigations are routinely furnished, as appropriate, to the
Department of Veterans Affairs for use in determinations concerning entitlement to veterans' and survivors'
benefits; to Servicemen's Group Life Insurance administrators for determinations concerning payment of life
insurance proceeds; to the U.S. General Accounting Office for purposes of determinations concerning relief of
accountable personnel from liability for losses of public funds and related fiscal matters; and to the Department of
Justice for use in litigation involving the Government. Additionally, such investigations are sometimes furnished to
agencies of the Department of Justice and to State or local law enforcement and court authorities for use in
connection with civilian criminal and civil court proceedings. The records of investigations are provided to agents
and authorized representatives of persons involved in the incident, for use in legal or administrative matters. The
records are provided to contractors for use in connection with settlement, adjudication, or defense of claims by or
against the Government, and for use in design and evaluation of products, services, and systems. The records are
also furnished to agencies of the Federal, State, or local law enforcement authorities, court authorities,
administrative authorities, and regulatory authorities, for use in connection with civilian and military criminal, civil,
administrative, and regulatory proceedings and actions.

A-2-e(2)
4. MANDATORY/VOLUNTARY DISCLOSURE, CONSEQUENCES OF REFUSING TO DISCLOSE:

a. Where disclosure is voluntary, as usually is the case, use one of the following statements, or a combination of
the following statements, as applicable:

(1) Where an individual is a subject of an investigation for purpose 2a or 2b, above: Disclosure is
voluntary. You are advised that you are initially presumed to be entitled to have the [personnel determinations]
[disciplinary determinations] in paragraph 2, above, resolved in your favor, but the final determination will be based
on all the evidence in the investigative record. If you do not provide the requested information, you will be entitled
to a favorable determination if the record does not contain sufficient evidence to overcome the presumption in your
favor. If the completed record does contain sufficient evidence to overcome the presumption in your favor,
however, your election not to provide the requested information possibly could prevent the investigation from
obtaining evidence which may be needed to support a favorable determination.

(2) Where an individual is a subject of an investigation for purpose 2c, above: Disclosure is
voluntary, and if you do not provide the requested information, any determination as to whether you should be held
pecuniarily liable for repayment of the Government's loss would be based on the other evidence in the investigative
record, which possibly might not support a favorable determination.

(3) Where the individual is a claimant or potential claimant in an investigation for purpose 2e,
above: Disclosure is voluntary, but refusal to disclose the requested information could prevent the investigation
from obtaining sufficient information to substantiate any claim which you have made or may make against the
Government as a result of the incident under investigation.

(4) Where the individual was treated at Government expense for injuries caused by third parties in
connection with a matter being investigated for purpose 2e, above: Disclosure is voluntary, but refusal to disclose
the requested information could result in a requirement for you to assign to the Government your medical care
claims against third parties in connection with the incident, or authorize withholding of the records of your
treatment in naval medical facilities.

(5) In any other case: Disclosure is voluntary, and if you do not provide the requested information, any
determinations or evaluations made as a result of the investigation will be made on the basis of the evidence that is
contained in the investigative record.

b. In the unusual situation where a specific statute, regulation, or lawful order of competent authority
mandatorily directs an individual to disclose particular information for the Government's benefit in furtherance of a
Government interest, policy, or objective, the following statement should be used: Disclosure of (specify the
particular relevant information required) is mandatory under (cite the statute, regulation, or order), and refusal to
disclose that information will subject you to possible disciplinary or criminal proceedings. Disclosure of any other
information requested is voluntary, (and there will be no adverse effects if you elect not to disclose it) (but election
not to disclose the information could . . . ."

NAVJAG 5800/36 (Rev.9-77) A-2-e(3)

 SAMPLE PRIVACY ACT RECORD OF DISCLOSURE

THE ATTACHED RECORD CONTAINS PERSONAL INFORMATION CONCERNING AN

INDIVIDUAL. USE AND DISCLOSURE THEREOF IS GOVERNED BY SECNAVINST
5211.5D. UNAUTHORIZED DISCLOSURE OF PERSONAL INFORMATION FROM THIS
RECORD COULD SUBJECT THE DISCLOSER TO CRIMINAL PENALTIES.

INSTRUCTIONS: This sheet is to remain affixed as a permanent part of the record described below.
An appropriate entry must be made below each time
the record or any information from the record is viewed by, or furnished to, any person or agency,
including the subject of the record, except: (1) disclosures to DOD personnel having a need to know in
the performance of their official duties and (2) disclosure of items listed in subparagraph 7a(2) of
SECNAVINST 5211.5D.

______________________________________________________________________________
TITLE AND DESCRIPTION OF RECORD

______________________________________________________________________________
NAME AND ADDRESS OF PERSON OR AGENCY
TO WHOM DISCLOSED (AND SIGNATURE IF
DISCLOSURE IS MADE IN PERSON) PURPOSE OF DISCLOSURE DATE
______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

IMPORTANT - READ AND COMPLY WITH THIS PAGE

A-2-f
 SAMPLE WARNING ADVISEMENT ABOUT STATEMENTS REGARDING ORIGIN OF
DISEASE OR INJURY

COMPLIANCE WITH SECTION 0221 OF THE JAG MANUAL

I, , have been advised that:

-questions have arisen concerning whether or not my injury/disease, sustained or discovered on

20 , was incurred in the line of duty or as a result of my own misconduct;

-in the event such injury/disease is determined to have been incurred not in the line of duty or as a
result of my own misconduct, I will be required to serve for an additional period beyond my present
enlistment to make up for the duty time lost;

-lost duty time will not count as creditable service for pay entitlement purposes;

-I may be required to forfeit some pay (where absence from duty in excess of one day
immediately follows intemperate use of liquor or habit-forming drugs);

-if I am permanently disabled and that disability is determined to have been the result of
misconduct or was incurred not in the line of duty, I may be barred from receiving disability pay or
allowances, as well as veterans' benefits;

-I may not be required to give a statement relating to the origin, incidence, or aggravation of any
disease/injury that I may have.

I do/do not desire to submit a statement.

_________
Date ________________________
Signature

_______________________
Witness Signature

______________________________________________________________
Witness Name/Rate/Grade/Unit/Telephone Number

A-2-g
 SAMPLE DOCUMENTATION OF PRELIMINARY INQUIRY
(Date)

From: (Name and rank of individual conducting preliminary inquiry)

To: (Title of authority ordering preliminary inquiry)

Subj: PRELIMINARY INQUIRY INTO (DESCRIPTION OF INCIDENT)

Ref: (a) JAGMAN Section 0204

1. This reports completion of the preliminary inquiry conducted in accordance with reference (a) into
(description of incident).

2. Personnel contacted: (List individuals with name, rank, title, unit, and telephone number).

3. Materials reviewed: (List documents, objects, materials, tangibles reviewed and, if of probable
evidentiary value where stored together with name of responsible individual together and that person's
phone number).

4. Summary of findings: (summary should not extend beyond one paragraph and should summarize both
what is known and unknown about the event in question).

5. Recommendation: (Choose one: consult a judge advocate; no further investigation warranted;

command investigation; litigation-report investigation; board of inquiry; or court of inquiry).

__________________________________________
Name, rank, unit, telephone
______________________________________________________________________________

FIRST ENDORSEMENT

________Concur with recommendation

________Other: ____________________________________________________________

____________________________________________________________

_______________________________________
Name, rank, unit, telephone

(Note: attachments may be added to the report as desired.)

A-2-h
 CHAPTER III
COMPLAINTS OF WRONGS

0301 PURPOSE 0306 PROCEDURE

0302 AUTHORITY a. Time limitations

b. Request to commanding
a. Article 138, UCMJ officer for redress
b. Article 1150, U.S. Navy c. Form of complaint
Regulations (1990) d. Forwarding the complaint
e. Endorsements
0303 DEFINITIONS OF TERMS AND f. Withdrawal of complaint
PHRASES USED IN THIS CHAPTER g. Joinder
h. Waiver of requirements
a. Complaint of wrongs
b. Commanding officer 0307 CONSIDERATION OF THE
c. Due application COMPLAINT BY THE OFFICER
d. Respondent EXERCISING GENERAL COURT-
e. General court-martial authority MARTIAL AUTHORITY (GCMA)
f. Wrong
g. Redress a. Review of the complaint
h. Examination into a complaint b. Improper or defective complaints
i. True statement of the complaint, with the c. Complaints alleging recommendations
proceedings had thereon as wrongs
d. Inquiry
0304 COMPLAINTS NOT WITHIN THIS e. Complainant’s rebuttal and notifications
CHAPTER f. Delay due to court-martial
g. Personal action by GCMA
a. Actions which may not be the subject of h. Redress
a complaint of wrongs i. Complaint without merit
b. Improper Redress j. Preparation and forwarding of GCMA’s
report
0305 PARTICIPANTS TO A COMPLAINT k. Written response to complainant
OF WRONGS
0308 ENDORSEMENTS BY OFFICERS
a. Who may complain SENIOR IN THE CHAIN OF
b. Who may be the subject of COMMAND TO THE GCMA
a complaint
c. Who shall consider the complaint 0309 ACTION BY THE JUDGE
d. Authority of intermediate ADVOCATE GENERAL
superior officers
a. When complaint has been acted upon
b. When the Assistant Secretary of the
Navy (M&RA) is GCMA
c. Referral to the General Counsel of the
Navy

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0310 REVIEW BY THE SECRETARY OF
THE NAVY

a. Scope
b. Action where redress was
granted
c. Action where redress was denied
d. Notification to complainant
e. Finality
f. Other remedies
g. Delegation

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 CHAPTER III
COMPLAINTS OF WRONGS

0301 PURPOSE (b) Where the respondent and complainant

have the same commanding officer, that commanding
To establish procedures for preparing, submitting and officer shall take final action on the article 1150
processing complaints of wrongs against a complaint. It is neither desired nor required that the
complainant's commanding officer under article 138, report be forwarded to the Secretary of the Navy in
Uniform Code of Military Justice (UCMJ), and such a case. If the complainant is not satisfied with the
complaints of wrongs against a military superior (who resolution made by the commanding officer, an article
is not the complainant's commanding officer) under 138 complaint may be filed against that commanding
article 1150(4), U.S. Navy Regulations (1990). officer.

0302 AUTHORITY (2) An article 1150 Complaint of Wrongs shall be

in the format specified in appendix A-3-a of this
a. Article 138, UCMJ states: "Any member of the manual.
armed forces who believes himself wronged by his
commanding officer, and who, upon due application to (3) For processing article 1150 complaints,
that commanding officer, is refused redress, may substitute the words "superior" for the words
complain to any superior commissioned officer, who "commanding officer" as they are used in this chapter.
shall forward the complaint to the officer exercising
general court-martial jurisdiction over the officer 0303 DEFINITIONS OF TERMS AND
against whom it is made. The officer exercising PHRASE USED IN THIS CHAPTER
general court-martial jurisdiction shall examine into
the complaint and take proper measures for redressing a. Complaint of wrongs. A service member's formal
the wrong complained of; and shall, as soon as request to superior authority for relief from a wrong
possible, send to the Secretary concerned a true committed against the member for which the member
statement of that complaint, with the proceedings had sought, and was denied, redress.
thereon."
b. Commanding officer. For purposes of an article
b. Article 1150, U.S. Navy Regulations (1990), 138 complaint, "commanding officer," as used in this
states in part: "If any person in the naval service chapter, means a commissioned or warrant officer
considers themself wronged by an act, omission, who, by virtue of rank and assignment, exercises
decision, or order of a person who is superior in rank, primary command authority over a military
or command, that person shall not fail in maintaining a organization, or prescribed territorial area, to which
respectful bearing toward such superior, but may complainant is assigned, that under official directives
report the wrong to the proper authority for redress in is recognized as a "command." Para. 2a, part V,
the manner provided in this article." For purposes of MCM. For complaints against a person filed under
this chapter: article 1150, U.S. Navy Regulations, references in this
Chapter to a "commanding officer," respondent are to
(1) An article 1150 Complaint of Wrongs (which be read to refer equally to a respondent under article
can only be filed against a superior who is not the 1150 (a person who is superior in rank or command to
complainant's commanding officer) shall be processed the complainant but not his or her commanding
as follows: officer).

(a) Where the respondent and complainant c. Due application. A timely request to the
do not have the same commanding officer, an article "commanding officer" for redress of an alleged wrong
1150 complaint shall follow the same procedures committed or ratified by that person.
enumerated in this chapter for an article 138 complaint.
d. Respondent. The individual who committed the

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alleged wrong against complainant, and against whom proceedings had thereon. A report to the Secretary of
the complaint of wrongs is made. A complaint is the Navy, signed personally by the GCMA. See
against a specific person. subsection 0307k.

e. General court-martial authority (GCMA). The 0304 COMPLAINTS NOT WITHIN THIS
officer (or successor in command) next superior in the CHAPTER
chain of command exercising general court-martial
jurisdiction over the respondent at the time of the a. Actions which may not be the subject of a
alleged wrong, except in cases forwarded to the complaint of wrongs. The following actions are not
Assistant Secretary of the Navy (M&RA) under this proper subjects of a complaint of wrongs:
subsection . When the Chief of Naval Operations
(CNO) or the Commandant of the Marine Corps (1) actions, omissions, decisions, or orders that are
(CMC) is the next superior officer in the chain of not within the definition of "wrongs" in subsection
command exercising general court-martial jurisdiction 0303f;
over the respondent at the time of the alleged wrong,
the Vice Chief of Naval Operations or the Assistant (2) acts, omissions, decisions and orders not taken,
Commandant of the Marine Corps, respectively, shall caused or ratified by respondent;
act on the complaint as the GCMA. In cases where
the respondent is the CNO, the CMC, or a (3) acts that are not final. Most recommendations
departmental level officer who does not report to either are not final acts. When the recommendation itself is
the CNO or CMC, the GCMA is the Assistant controlling, such as a recommendation for
Secretary of the Navy (Manpower & Reserve Affairs). advancement or for a Navy Enlisted Classification
(NEC) removal, it is a final act, and a proper subject of
f. Wrong. Any act, omission, decision or order, a complaint of wrongs. If a recommendation has been
except those excluded by subsection 0304, taken, acted upon by another authority, the complaint of
caused, or ratified by a "commanding officer," under wrongs will be processed under subsection 0307c;
color of that officer's military authority that:
(4) general policies of the Department of Defense
(1) results in personal detriment, harm, or injury to and the Department of the Navy, including the
a military subordinate; instructions and other documents promulgating such
policies;
(2) is without substantial basis, unauthorized,
arbitrary and capricious, unjust, or discriminatory; (5) the GCMA's decisions and procedures on
complaints of wrongs, except for failure to forward the
(3) is properly capable of redress in command complaint;
channels.
(6) complaints which may be redressed under other
g. Redress. Any lawful action taken by the Department of the Navy procedures that provide the
"commanding officer," the GCMA, or any officer in complainant notice of the alleged wrongful act, a right
the chain of command (see subsection 0305d) that to rebut or a hearing, as appropriate, and review by an
restores to the complainant any rights, privileges, authority superior to the officer taking the action.
property or status he would have been entitled to had Such procedures include, but are not limited to:
the wrong not occurred.
(a) proceedings, findings, or final actions of
h. Examination into a complaint. An inquiry into all boards convened under 10 USC sections 1181 (Board
facts material to the complaint. This inquiry may take to Consider Separation of Regular Officers for
any form the GCMA deems appropriate. See Substandard Performance) and 1182 (Board of
subsection 0307d. Inquiry);

i. True Statement of the complaint, with the (b) nonjudicial punishment, court-martial, and

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administrative discharge procedures and results. The filed under article 1150, U.S. Navy Regulations,
vacation of a suspended nonjudicial punishment is the another military superior,) while the respondent was
proper subject of a complaint of wrongs as no other acting in an official capacity.
due process procedure exists to examine that action;
b. Who may be the subject of a complaint. Any
(c) detachment for cause proceeding in which "commanding officer," as defined in subsection 0303b,
the requirements of paragraph a(6) of this section were may be the respondent to a complaint of wrongs.
afforded the complainant.; and Neither the Secretary of the Navy, nor any of the
Secretary's assistants or deputies, may be the
(d) personnel detailing decisions in which the respondent to a complaint of wrongs.
member has been afforded an opportunity for flag or
general officer review. c. Who shall consider the complaint.

b. Improper redress. The following actions may not (1) General rule. Complaints of wrong will be
be requested to redress a wrong: expeditiously resolved at the lowest possible level of
command. The GCMA has the initial and primary
(1) imposition of disciplinary action against responsibility to investigate the complaint of wrongs,
another; or take action thereon, and submit a report of the
proceedings to the Secretary.
(2) changes in final military records.
(2) Reassignment of complainant or respondent. If
(a) Article 138 UCMJ may NOT be used to the respondent detaches before complainant submits a
modify a military record unless the service member complaint of wrongs, the complaint will be forwarded
initiates a complaint within 90 days after he or she to the officer who was the GCMA over the respondent
knows of the record's submission for entry into the at the time of the alleged wrong, or to that officer's
appropriate record or 1 year after submission for entry successor in command. If the complainant detaches
into the appropriate record, whichever is earlier. before submitting a complaint, it will be forwarded to
the GCMA via the complainant's new commanding
(b) In calculating these periods, the time from officer. If both the respondent and the complainant
the date the complainant requested redress from the detach before complainant submits the complaint, the
"commanding officer" to the day the complainant complaint will be forwarded to the officer who was the
receives notice from the "commanding officer" of the GCMA over the respondent at the time of the alleged
disposition of the request for redress, is not counted. wrong, or to that officer's successor in command, via
the complainant's new commanding officer. In all
0305 PARTICIPANTS TO A COMPLAINT OF cases, the complaint will be forwarded to the GCMA
WRONGS via the respondent.

a. Who may complain. At the time the complaint is (3) Review of complaints by area coordinators.
submitted, the complainant must be: An area coordinator will act as the GCMA when that
officer is the GCMA over the respondent as defined in
(1) a member of the armed forces on active duty subsection 0303e, or if specifically requested and
concerning a wrong which is alleged to have occurred authorized in writing to do so by the original GCMA
while the complainant was on active duty; over the respondent.

(2) a drilling reservist concerning a wrong alleged (a) The area coordinator and the GCMA over the
to have occurred while the complainant was a drilling respondent will determine, on a case-by-case basis,
reservist; or whether it is appropriate for the area coordinator to act
on a particular complaint of wrongs, considering such
(3) any reservist alleging a wrong by a factors as: the geographic location of the respective
commanding officer, (or, in the case of complaints commands; the effect of operational commitments on

3-5
the GCMA's ability to investigate the complaint
adequately; the relative burden of assuming a. Time limitations. A complaint must be submitted
investigative cognizance; the relative seniority of the within a reasonable time after discovery of the alleged
respondent and the area coordinator; and familiarity wrong. Absent unusual circumstances, a complaint
with the subject matter of a specific complaint. The submitted more than 90 days after the complainant
GCMA's letter requesting an area coordinator to act discovers the alleged wrong is untimely. The period
upon a complaint should detail the reasons for the during which the commanding officer is considering
request. An area coordinator may decline for complainant's written request for redress under
appropriate reasons to act on a complaint. subsection 0306b is not included in this 90-day period.
The GCMA may deny relief solely because the
(b) Ultimate responsibility for processing the complaint is untimely. See subsection 0307b(2). If,
complaint remains with the original GCMA over the however, the GCMA determines that unusual
respondent. If the original GCMA forwards a circumstances justify the delay in submission, the
complaint to the area coordinator, the original GCMA GCMA may find that the complaint is timely and act
shall maintain a file on the complaint for 2 years. The on it.
file should include a copy of the GCMA's written
request to the area coordinator to act as the GCMA, b. Request to commanding officer for redress.
and a copy of the area coordinator's final action. Once Before a complainant may submit a complaint of
the area coordinator assumes cognizance over the wrongs under article 138, UCMJ, the complainant
matter, that officer acts independently and in the place must request, in writing, that the commanding officer
of the original GCMA, with the authority to grant any redress the wrong. The commanding officer must act
redress the original GCMA may have ordered. upon this request for redress in a timely manner
(ordinarily within 30 days) and notify the complainant
(4) Review of complaints from joint commands. in writing of the action taken.
Where the complainant is assigned to a joint
command, and the GCMA over the respondent is a c. Form of complaint. If the redress requested in
member of another service, the complaint shall be 0306b is not granted, or if the complainant asserts that
forwarded to the GCMA via the senior naval officer in any grant or partial grant of redress is insufficient, then
the joint command, the designated Navy or Marine a complaint for redress of wrongs may be filed under
Corps commanding officer of the command, or the this chapter. The complaint shall be submitted in the
cognizant naval area coordinator, as appropriate. He format provided at Appendix A-3-a. This form must
shall review the complaint to determine whether it be completed in its entirety, unless a particular
raises issues unique to the naval service and subparagraph -- such as that providing for an
addressable only under U.S. Navy regulations and explanation for untimely submission -- does not apply.
instructions. The GCMA may, in such a circumstance, A complainant should submit all relevant evidence,
specifically request and authorize either the naval area including affidavits, statements, and documents, with
coordinator or the appropriate component commander the complaint. The complaint should specify briefly
to act on the case. the wrongs alleged and redress requested, followed
thereafter by explanatory information, if necessary.
d. Authority of intermediate superior officers . An
intermediate superior officer, junior to the GCMA, to d. Forwarding the complaint. The complainant shall
whom a complaint is forwarded, may comment on the forward the complaint to the GCMA, via the chain of
merits of the complaint, add pertinent evidence, and, if command, including the respondent. Immediately
empowered to do so, grant redress, noting such action upon receipt, the GCMA shall send a copy of the
on the record. In all cases, intermediate superior complaint, without enclosures, to the Secretary of the
officers shall promptly forward the complaint to the Navy via the Office of the Judge Advocate General
GCMA, and provide a copy of the endorsement to the (Administrative Law Division), 1322 Patterson Ave,
complainant. See subsection 0306e. SE, Suite 3000, Washington Navy Yard, DC 20374-
5066.
0306 PROCEDURE

3-6
 e. Endorsements. Intermediate endorsers, including 0306c and e);
the respondent, shall ordinarily forward the complaint
within 10 working days after receipt. Endorsements (4) the complaint is timely (see subsection 0306a);
not completed within 10 working days of receipt must (5) the complainant has requested redress from the
contain an explanation for the delay. Subject to respondent (see subsection 0306b);
applicable security of classified material instructions,
endorsers must provide to complainant copies of their (6) the complaint has been properly forwarded (see
endorsements, including enclosures. subsection 0306d); and

f. Withdrawal of complaint. A complainant may (7) the complaint does not join more than one
withdraw a complaint at any time. The withdrawal complainant or more than one respondent. A
must be in writing and signed by the complainant.
After notifying the Secretary of the Navy via the Judge checklist to assist in this review is provided at
Advocate General, the GCMA shall file the complaint Appendix A-3-b.
and the withdrawal letter without further action, and
maintain the file for two years from the date of b. Improper or defective complaints.
withdrawal.
(1) If the complaint fails to satisfy the requirements
g. Joinder. A complaint may not be joined with the of subsections 0305or b, does not allege a wrong
complaints of other individuals. Similarly, each which is a proper subject of a complaint of wrongs, or
complaint may seek redress for the wrong(s) of only makes no proper request for relief, the GCMA shall
one respondent. If the complainant believes more than return the complaint to the complainant with an
one respondent has committed a wrong, the explanation as to why it is outside the scope of this
complainant shall submit a separate complaint against chapter. If appropriate, the GCMA should inform the
each respondent. complainant about other channels available to resolve
the alleged wrong. The GCMA shall forward a copy
h. Waiver of requirements. The GCMA may waive of the complaint and the letter to the complainant to the
any requirement in this section, except those that Secretary of the Navy via the Judge Advocate General.
afford a benefit to the complainant, such as the right to
receive copies of all endorsements and to rebut any (2) If the complaint is incomplete or otherwise fails
adverse matter submitted to or discovered by the to satisfy the requirements of subsections 0306a, b, c,
GCMA or any intermediate endorsers. See subsection d, or g, unless the GCMA waives the deficiency under
0307e. subsection 0306h, the GCMA shall return the
complaint to the complainant with an explanation.
0307 CONSIDERATION OF THE The GCMA shall forward a copy of the complaint and
COMPLAINT BY THE OFFICER the letter to the complainant to the Secretary of the
EXERCISING GENERAL COURT- Navy via the Judge Advocate General.
MARTIAL AUTHORITY (GCMA)
c. Complaints alleging recommendations as
a. Review of the complaint. Upon receipt of the wrongs.
complaint, the GCMA shall review it to ensure that: If a complaint names a respondent who made a
recommendation that was forwarded to another officer
(1) the alleged wrong is a proper subject of a for final action, and that action has been completed, the
complaint of wrongs (see subsections 0303f and officer who approved or acted on the recommendation
0304a); in question shall be substituted as respondent in place
of the original respondent. The complaint shall be
(2) the requested redress is proper (see subsection forwarded, via the GCMA over the original respondent
0304b); and via the substituted respondent, to the GCMA over
that substituted respondent. That GCMA will review
(3) the complaint is complete (see subsections all actions taken and grant or deny redress in

3-7
accordance with this chapter. In all other cases, except in unusual circumstances, the
GCMA shall act on the complaint within 60 days of
d. Inquiry. If the complaint is timely and complete, receipt. In the event of a delay caused by unusual
the GCMA shall inquire into its allegations. circumstances, the report to the Secretary shall contain
an explanation of the delay.
(1) The extent and nature of such inquiry is within g. Personal action by GCMA. The GCMA has
the GCMA's discretion, and depends upon the primary responsibility for acting on the complaint. See
seriousness of the allegations, the available time, and subsection 0305c. The GCMA may not delegate such
the exigencies of operations. The GCMA may appoint authority to a subordinate command or individual. The
an investigating officer to inquire into the complaint. statement submitted to the Secretary must be signed
personally by the GCMA, or, in that officer's absence,
(2) The GCMA should review chapter II, chapter V by the officer officially acting in such capacity, with
and SECNAVINST 5211.5 series to determine the signature block so indicating.
whether Privacy Act statements are required.
h. Redress. The GCMA shall grant such redress as is
(3) The GCMA may request a complainant submit appropriate and within his authority.
explanatory statements or other relevant documents.
(1) If the GCMA cannot actually effect the redress,
(4) Certain complaints may involve matters that are the GCMA shall forward the file to the Secretary via
complex or technical and require expert evaluation. In the officer who can effect it, requesting
such cases, the GCMA may seek expert evaluation that the specific relief be granted. The officer so
from other naval organizations or commands. requested shall, except in the cases noted in
subparagraph 0307h(2) below, effect the relief.
e. Complainant's rebuttal and notifications. Prior to
taking final action on a complaint, and subject to (2) If the officer requested to effect relief
applicable security of classified material instructions, determines that the relief requested is not permitted by
the GCMA shall ensure that the complainant has been current regulations or otherwise prohibited by law, he
provided a copy of all endorsements and enclosures or she may delay compliance with the request until the
forwarded with the complaint, as well as any adverse final review and direction by the Secretary. In such
evidence developed by the GCMA inquiry, that was cases, the officer's endorsement will set out the precise
not raised in earlier endorsements or enclosures, and reasons the requested relief has been delayed.
shall afford the complainant the opportunity to rebut
any matter of an adverse nature contained therein. See i. Complaint without merit. If the GCMA determines
Appendix A-3-c. Adverse matters include any the complaint is without merit, the GCMA shall deny
information, evidence, documents or opinions redress.
submitted by intermediate endorsers, including the
respondent, that are in any way contrary to the j. Preparation and forwarding of GCMA's report. In
complainant's contentions, even if they merely all cases, the GCMA shall prepare and forward to the
reiterate, highlight or recast matters previously Secretary of the Navy, via the Judge Advocate
submitted by the complainant. Complainants shall General, a report of the proceedings. The report will
submit their rebuttals via their commanding officers. be in the format provided in Appendix A-3-d, and will
include the complaint and all endorsements and
f. Delay due to court-martial. The GCMA may delay enclosures. At a minimum, it should provide adequate
the examination into a complaint if there is an ongoing facts to support the GCMA's conclusion, contain
independent inquiry or proceeding which is reasonably enough detail to allow Secretarial review, and identify
likely to result in clarification of the issues or redress a point of contact. The report will also enclose the
of the alleged wrong. Such delay should not ordinarily signed GCMA checklist found at Appendix A-3-b.
extend beyond 10 days after action is completed in the The GCMA will forward the report via the Judge
related procedure, or beyond 90 days from the date the Advocate General. Marine Corps activities will
GCMA receives the complaint, whichever is earlier. include the Commandant of the Marine Corps (Code

3-8
JA) as a via addressee. 0303e.

k. Written response to complainant. The GCMA c. Referral to the General Counsel of the Navy.
shall advise the complainant in writing of the action When the Judge Advocate General or an officer within
taken on the complaint. The letter will specifically his chain of command is the GCMA or respondent, or
indicate which of the complainant's allegations have when the Judge Advocate General has provided legal
merit and which are without merit and will either advice under subsection 0309b, the Secretary may
specify the relief granted or expressly deny the refer the case to the General Counsel of the Navy for
requested relief. See Appendix A-3-e. The GCMA formal evaluation and recommendations under this
may satisfy this requirement by providing the section.
complainant a copy of the GCMA's report to the
Secretary of the Navy (without enclosures) prepared in 0310 REVIEW BY THE SECRETARY OF
accordance with Section 0307j. THE NAVY

0308 ENDORSEMENTS BY OFFICERS a. Scope. The Secretary of the Navy will review the
SENIOR IN THE CHAIN OF action of the GCMA. The standard for review is
COMMAND TO THE GCMA whether the GCMA committed an abuse of discretion.

Officers senior in the chain of command to the GCMA, b. Action where redress was granted. The Secretary
who themselves exercise general court-martial of the Navy may set aside actions favorable to the
jurisdiction, may require subordinate commanders to complainant only if such redress was beyond the
submit the GCMA's report via them. Such officers statutory or regulatory authority of the officer granting
may make comments or recommendations concerning the redress.
the report to the Secretary, but they may not modify in
any manner the report of the GCMA. c. Action where redress was denied. The Secretary
of the Navy may order further proceedings in the
0309 ACTION BY THE JUDGE ADVOCATE matter, or direct that all or a portion of the requested
GENERAL redress, or other appropriate redress, be granted.

a. When complaint has been acted upon. Upon d. Notification to complainant. Upon review of a
receipt of the GCMA's report to the Secretary, the complaint, the Secretary shall notify the complainant
Judge Advocate General shall ensure that there has whether such resolution is determined to be correct in
been substantial compliance with article 138, UCMJ, law and fact and whether further action on the
or article 1150, U.S. Navy Regulations (1990), and this complaint will be taken.
chapter.
e. Finality. Action on a complaint by the Secretary
(1) If there has not been substantial compliance, the is final, and the complainant will have exhausted his
Judge Advocate General shall return the file to the administrative remedies under article 138, UCMJ, or
GCMA for additional investigation or further action. article 1150, U.S. Navy Regulations (1990), as the case
may be, under any of the following circumstances:
(2) If there has been substantial compliance, the
Judge Advocate General shall forward the complaint, (1) when the Secretary indicates that the action of
with the actions thereon, to the Secretary of the Navy, the GCMA is approved, or states that review is final;
with appropriate evaluations and recommendations.
(2) if the Secretary takes no action within 90 days
b. When the Assistant Secretary of the Navy of receiving notice that the GCMA has returned the
(M&RA) is GCMA. The Judge Advocate General complaint to the complainant because the complaint
shall provide legal advice to the Assistant Secretary of alleges a wrong which is not a proper subject of a
the Navy (M&RA) when the Assistant Secretary of the complaint of wrongs, requests improper relief, or is
Navy (M&RA) is the GCMA pursuant to section otherwise deficient.

3-9
 f. Other remedies. Exhaustion of remedies under
article 138, UCMJ, and article 1150, U.S. Navy
Regulations (1990), does not affect remedies that may
be available under other statutes or regulations,
including petitions to the Board for Correction of
Naval Records.

g. Delegation. The Secretary of the Navy may

delegate any of the responsibilities under this chapter
to the Assistant Secretary of the Navy (M&RA),
except when the Assistant Secretary of the Navy
(M&RA) has acted as the GCMA. The Secretary or
the Assistant Secretary of the Navy (M&RA) may
delegate any of the responsibilities under this chapter
to an appropriate Deputy Assistant Secretary of the
Navy, or to the Judge Advocate General. Actions
taken pursuant to this chapter by the Assistant
Secretary of the Navy (M&RA), a Deputy Assistant
Secretary of the Navy, or the Judge Advocate
General shall be as effective as if done personally by
the
Secretary of the Navy.

3-10
 COMPLAINT OF WRONGS

Submitted under the provisions of article 138, UCMJ, or article 1150, U.S. Navy Regulations (1990)

1. FROM: (Name) , (Grade/Rate) , (SSN) :

a. Organization (current command and, if different, command at the time of the alleged wrong):

b. EAOS/EAS:

c. Permanent home address (place where correspondence should be forwarded upon separation from
active duty):

2. TO (general courts-martial authority over respondent at the time of the alleged wrong):

3. VIA ADDRESSEES (intermediate superiors in the chain of command, to include complainant's

current commanding officer and the respondent):

4. RESPONDENT (person against whom complaint is made):

a. Name and grade:

b. Organization (title/position and current command, and if different, provide same information for
respondent at the time of the alleged wrong):

5. COMPLAINT (explain what happened and how it adversely affected you personally):

a. Date wrong discovered:

b. Date written request for redress was submitted:

c. Date answer to request for redress was received:

d. Number of days between wrong and submission of complaint (difference between date in block 5a
above and date this form is submitted, excluding the period respondent considered the written request for
redress, which can be determined from blocks 5b and 5c above; if complaint is submitted more than 90
days after discovery of the wrong, the delay must be explained in block 5e below):

e. Explanation of delay in submission:

f. Specific nature of wrong (include date and place of wrong), stated briefly:

g. RELIEF REQUESTED (relief must be personal in nature and directly connected to the wrong
alleged in block f above; it may not include, for example, a demand for public apology or initiation of
disciplinary action against another):

A-3-a(1)
6. ENCLOSURES (documents necessary to support the complaint; explanatory information, if
necessary, regarding the alleged wrong; copies of prior written request for redress; the answer to the
request; and any fitness reports or evaluations about which a wrong is alleged):

a. Number of additional pages attached: ________________________

7. I CERTIFY THE ABOVE INFORMATION IS TRUE AND CORRECT TO THE BEST OF MY

KNOWLEDGE, AND THIS COMPLAINT IS SUBMITTED PER THE GUIDELINES AND
PROCEDURAL REQUIREMENTS IN CHAPTER III, MANUAL OF THE JUDGE ADVOCATE
GENERAL.

SIGNATURE OF COMPLAINANT ____________________________ Date:

___________________

WITNESS: _________________________
Date:____________________

PRIVACY ACT STATEMENT

1. Authority: 10 U.S.C. § 501 (1982); 10 U.S.C. § 938 (1982).

2. Principal purpose(s). Used by command authorities and the Judge Advocate General (JAG) to review,
take action, and make recommendations to the Secretary of the Navy on article 138, UCMJ, and article
1150, U.S. Navy Regulations, 1990 complaints of wrong.

3. Routine uses. The Blanket Routine Uses that appear at the beginning of the Department of the Navy's
compilation in the Federal Register apply.

4. Mandatory or voluntary disclosure and effect on individual not providing information. Providing
requested information is voluntary; however, failure to do so may result in delayed command action and
JAG review, or the inability to notify complainant of the Secretary's decision.

A-3-a(2)
 ARTICLE 138 REVIEW CHECKLIST

Case name: _______________________________________

All references are to the JAG Manual unless otherwise noted.

COMPLAINT

□ Complaint is properly forwarded? (§ 0306d)*

□ Addressed to proper GCMA, via intermediate endorsers. If not, readdress and forward properly.

□ Is respondent the proper respondent? (§ 0305b/NAVREGS 1150)**

□ If 138, respondent was complainant’s CO at the time of the complained of actions. If not, process as
1150 or return under § 0307b(1), as appropriate.
□ If 1150 and respondent and complainant have the same commanding officer, then it is a “true 1150”
and no report to SECNAV is required. All other 1150’s are processed using 138 rules.
□ See § 0305c if one of the parties has transferred since the alleged wrong.

□ Is complainant a proper complainant? (§ 0305a) If not, see § 0307b(1).**

□ Complainant submitted written request for redress to respondent prior to submitting Art 138 complaint?
(§ 0306b) If not, complaint may be returned to complainant in accordance with 0307b(2).*

□ Complaint is timely, or late submission justified? (§ 0306a) If not, complaint may be returned to complainant in
accordance with § 0307b(2).*

□ Complainant does not join more than one respondent? (§ 0306g) If it does, complaint may be returned to
complainant in accordance with § 0307b(2).*

□ Complaint does not join more than one complainant? (§ 0306g) If it does, complaint may be returned to
complainant in accordance with § 0307b(2).*

□ Complaint is in the proper format? (§ 0306c, Appendix A-3-a) If not, obtain information and include in
GCMA’s action or the complaint may be returned to complainant in accordance with § 0307b(2).*
□ Includes complainant’s and respondent’s personal information?
□ Includes date wrong discovered and number of days between discovery of wrong and complaint
submission?
□ Explains delay, if applicable?
□ Complaint complete with all enclosures/endorsements?
□ Certified complaint to be “true and correct” and is signed, witnessed, and dated?

□ Complaint alleges a wrong that is a proper subject of a complaint of wrongs? (§§ 0303f, 0304a)**
□ Not recommendations (unless controlling, e.g. advancement recommendations, NEC removal)?
□ Not general policies of DON?
□ Not wrongs that have another DON procedure that provides notice, right to rebut or hearing, and review
by superior; includes adseps, BOIs, NJP, courts-martial, DFC.

□ Complaint makes a proper request for relief? (§ 0305)**

* Defect may be waived by GCMA.

** Defect may not be waived by GCMA and requires finding that particular allegation is not cognizable.

A-3-b(1)
NOTE: FOR THOSE DEFECTS THAT MAY BE WAIVED BY GCMA, FAILURE TO RETURN THE
COMPLAINT TO COMPLAINANT AND/OR ADDRESSING COMPLAINT ON THE MERITS IS
CONSIDERED A WAIVER OF THE DEFECTS.

GCMA ACTION

□ Advance copy provided to OJAG Code 13? (§ 0306d)

□ Complainant provided a copy of all endorsements and enclosures? (§ 0307e)

□ Complainant given opportunity to rebut adverse material using A-3-c? (§ 0307e)

□ If endorsements to complainant’s rebuttal submissions contain new adverse matter(s), complainant must
be given an opportunity to rebut that also.

□ Is this command the proper GCMA? (§ 0305c)

□ If area coordinator is acting as GCMA, written request from original GCMA must be included.

□ Has complaint been withdrawn by complainant? (§ 0306f)

□ Signed withdrawal letter forwarded to OJAG Code 13 with notice of withdrawal to SECNAV.

□ If complaint returned to complainant because it is incomplete or otherwise procedurally deficient, has

complainant been provided with an explanation for return and copies forwarded to SECNAV via OJAG
Code 13? (§ 0307b)

□ GCMA’s action completed within 60 days of receiving complaint? (§ 0307f)

□ Delay must be explained in letter to SECNAV.

□ Report to SECNAV signed personally by GCMA or official “Acting” (not “by direction”)? (§ 0307g)

□ If GCMA cannot effect redress granted, file forwarded to SECNAV via officer who may effectuate redress
(e.g., CNP)? (§ 0307h)

□ Report to SECNAV in proper format, including complaint and all enclosures and endorsements? (§ 0307j)
Report must discuss each allegation of wrong and conclude:
□ whether it is cognizable, and if it is cognizable
□ whether it is with merit or not, and if the allegation has merit
□ whether relief is appropriate.

□ Complainant advised in writing of action on complaint? (§ 0307k)

Note: this requirement may be satisfied by sending complainant copy of report to SECNAV.

□ For USMC commands, report to SECNAV sent via Commandant of the Marine Corps (JAR). (§ 0307j)

______________________________
Signed by reviewing official

A-3-b(2)
 GCMA NOTICE OF RIGHT TO REBUT

From: (Officer exercising general court-martial jurisdiction)

To: (Complainant)
Via: (Commanding Officer___________________)

Subj: OPPORTUNITY TO REBUT ADVERSE MATTER RELATING TO THE

COMPLAINT OF WRONGS UNDER ARTICLE 138, UCMJ (ARTICLE 1150,
U.S. NAVY REGULATIONS (1990), BY (COMPLAINANT)

Ref: (a) JAGMAN, Chapter III

Encl: (1) (identify documents)

1. As the officer exercising general court-martial jurisdiction over the respondent under reference (a), I
am investigating and reviewing your complaint and the endorsements to it.

2. Enclosure(s) (1) - (x) contain(s) matter which may be considered adverse to your case. In accordance
with section 0307e of reference (a), enclosures (1) - (x) are forwarded for your review and possible
rebuttal. If you desire to submit any matters in rebuttal, you must do so, in writing, via your commanding
officer, by (date certain). After that date, I will complete my action on your complaint.

(Name of GCMA)

A-3-c
 GCMA LETTER TO SECNAV

From: (General courts-martial authority)

To: Secretary of the Navy
Via: Judge Advocate General

Subj: COMPLAINT OF WRONGS UNDER ARTICLE 138, UCMJ, (Article 1150, U.S. NAVY
REGULATIONS (1990)), BY (Rank/Rate) (Name)(Service)

Ref: (a) Article 138, UCMJ (Article 1150, U.S. Navy Regulations, (1990))
(b) Chapter III, JAGMAN

Encl: (1) Original complaint with enclosures and endorsements

(2) Copy of GCMA's letter to complainant
(3)-(x) (related documents, reports, and investigations)

1. Per references (a) and (b), enclosures (1) through (x) are forwarded.

2. In enclosure (1), (complainant) makes the following allegations:

(a) - (x). (Specifically list each separate allegation.)

3. Regarding the allegations in paragraph 2 above, I have made the following determinations: (a) - (x).
(A determination must indicate whether each allegation has merit or is without merit. References to
specific sections of the enclosures should be made where applicable.)

4. In enclosure (1), (complainant) requests the following relief:

(a) - (x). (Specifically list each element of relief requested.)

5. I have determined that (the following/no) relief is appropriate in this case. (If relief is granted, discuss
the specifics thereof.)

6. My point of contact on this matter is (action officer). He/she may reached at (commercial telephone
number) or DSN (DSN number).

7. By the original of enclosure (2)[or copy of this letter], the complainant has been advised of the action I
have taken as the general courts-martial authority.

______________________________________
(PERSONALLY SIGNED BY THE GCMA OR
OFFICER ACTING IN SUCH CAPACITY-
SEE SUBSECTION 0307g)
Copy to:
(previous endorsers)
A-3-d
 GCMA LETTER TO COMPLAINANT

From: (General courts-martial authority)

To: (Complainant)
Via: (Commanding Officer _______________)

Subj: COMPLAINT OF WRONGS UNDER ARTICLE 138, UCMJ (ARTICLE 1150, U.S. NAVY
REGULATIONS (1990)) BY (COMPLAINANT)

Ref: (a) Article 138, UCMJ (article 1150, U.S. Navy Regulations)
(b) JAGMAN Chapter III

1. As the general courts-martial authority over the respondent under references (a) and (b), I have
reviewed your complaint and have conducted an appropriate inquiry regarding your allegations.

2. (Discuss allegations raised in the complaint.)

3. (Discuss results of inquiry and determination of whether allegations have merit or are without merit.)

4. (Discuss relief granted or state that relief is denied.)

5. (Additional discussion, including identifying other avenues of relief, as appropriate.)

6. As required by section 0307j of reference (b), I have forwarded a report of your complaint and the
proceedings held thereon to the Secretary of the Navy, who will act as the final review authority in your
case.

(name of GCMA)

A-3-e
 CHAPTER IV
ARTICLE 139 CLAIMS--REDRESS OF DAMAGE TO PROPERTY

0401 SCOPE 0408 RECONSIDERATION AND

APPEAL
0402 STATUTORY AUTHORITY
a. Reconsideration
0403 CLAIMS NOT COGNIZABLE b. Appeal

0404 LIMITATION ON CLAIMS 0409 EFFECT OF COURT-MARTIAL

PROCEEDINGS
a. Time limitations
b. Acts of property owner
c. Only direct damages
considered

0405 COMPLAINT BY THE INJURED

PARTY AND INVESTIGATION

a. Contents of the claim

b. Misconduct by members of the
command
c. Investigation
d. Recommendations

0406 ACTION WHERE OFFENDERS

ARE MEMBERS OF ONE
COMMAND

a. Action by commanding
officer
b. Review
c. Charge against pay

0407 ACTION WHERE OFFENDERS

ARE MEMBERS OF DIFFERENT
COMMANDS

a. Action by common superior

b. Forwarding to SECNAV (JAG)

4-1
 CHAPTER IV

ARTICLE 139 CLAIMS--REDRESS OF DAMAGE TO PROPERTY

0401 SCOPE 0404 LIMITATION ON CLAIMS

This chapter provides for assessments against the pay a. Time limitations. A claim must be submitted
of members of the naval service in satisfaction of within 90 days of the incident giving rise to it.
claims for property damage caused under certain
circumstances. Claims for damage, loss, or destruction b. Acts of property owner. When the acts or
of privately owned property caused by a person or omissions of the property owner, his lessee, or agent
persons in the naval service, are payable under Article were a proximate contributing factor to the loss or
139, UCMJ, only if such damage, loss, or destruction damage of the property, assessments will not be made
is caused by riotous conduct, willful conduct, or acts against members of the naval service in excess of the
showing such reckless or wanton disregard of the amount for which they are found to be directly respon-
property rights of others that willful damage or dest- sible, i.e., comparative responsibility for the loss will
ruction is implied. Acts of the type punishable under be the standard for determining financial
Article 109, UCMJ, are cognizable under Article 139, responsibility.
UCMJ. Charges against pay under these regulations
shall be made only against the pay of persons shown to c. Only direct damages considered. Assessment will
have been principal offenders or accessories. be made only for direct physical damages to the prop-
erty. Indirect, remote, or inconsequential damage will
0402 STATUTORY AUTHORITY not be considered.

Article 139, UCMJ, redress of injuries to property, is 0405 COMPLAINT BY THE

the basis for this chapter. INJURED PARTY AND
INVESTIGATION
0403 CLAIMS NOT COGNIZABLE
a. Contents of the claim. A claim shall contain a
The following claims are not cognizable under this statement setting forth the amount of the claim, the
chapter. facts and circumstances surrounding the claim and any
other information that will assist in the investigation
a. Claims resulting from simple negligence. and resolution of the matter. When there is more than
one complaint resulting from a single incident, each
b. Claims of subrogees. claimant must file a claim separately and individually.
The claim shall be personally signed by the claimant or
c. Claims for personal injury or death. his duly authorized representative or agent.

d. Claims arising from acts or omissions within the b. Misconduct by members of the command. Where
scope of employment of the offender. the claim alleges misconduct by members of the com-
mand, a commanding officer to whom the claim is
e. Claims for reimbursement for damage, loss, or submitted shall convene an investigation under this
destruction of Government property. Manual to inquire into the matter. Where a complaint
is received by a commanding officer to whose
command the alleged offenders do not report, he shall
forward the claim and other pertinent information
about the matter to the member's commanding officer

4-2
who will convene an investigation into the incident. officer exercising general court-martial jurisdiction
Where the command of the alleged offenders cannot (OEGCM) over the command for review and action on
be determined, the claim and supporting materials shall the claim. The OEGCM action on the claim shall be
be forwarded to the Chief of Naval Personnel or the communicated to the commanding officer who will
Commandant of the Marine Corps, as appropriate, for take action consistent with the determination.
action.
c. Charge against pay. Where the amount does not
c. Investigation. The investigation shall inquire into exceed $5,000.00, the amount ordered by the
the circumstances surrounding the claim, gather all commanding officer shall, as provided in the Navy
relevant information about the matter (answering the Comptroller Manual, be charged against the pay of the
who, what, where, when, why, and how questions) and offenders and the amounts so collected will be paid to
make findings and opinions, as appropriate, about the the claimant. Where the amount exceeds $5,000.00,
validity of the claim under Article 139, UCMJ, and the claim, the investigation, and the commanding
these regulations. The investigation shall determine officer's recommendation shall be forwarded for
the amount of damage suffered by the property owner. review prior to checkage to Headquarters, U.S. Marine
Corps (Code JAR) or the Judge Advocate General
d. Recommendations. The investigation shall make (Code 15), as appropriate. The amount charged in any
recommendations about the amount to be assessed single month against the pay of offenders shall not
against the pay of the responsible parties. If more than exceed one-half of basic pay, as defined in Rule for
one person is found responsible, recommendations Courts-Martial 1003(b)(2), Manual for Courts-Martial.
shall be made about the assessments against all The action of the commanding officer in ordering the
individuals. assessment shall be conclusive on any disbursing
officer for payment to the claimant of the damages
0406 ACTION WHERE OFFENDERS ARE assessed, approved, charged, and collected.
MEMBERS OF ONE COMMAND
0407 ACTION WHERE OFFENDERS
a. Action by commanding officer. The commanding ARE MEMBERS OF
officer shall ensure the alleged offenders are shown the DIFFERENT COMMANDS
investigative report and are advised they have 20 days
within which to submit a statement or additional a. Action by common superior. The investigative
information on the incident. If the member declines to report shall be forwarded to the common superior
submit information, he shall so state in writing within exercising general court-martial jurisdiction over the
the 20-day period. The commanding officer shall commands to which the alleged offenders are assigned.
review the investigation and determine whether the That officer shall ensure the alleged offenders are
claim is properly within the provisions of Article 139, shown the investigative report and permitted to
UCMJ, and these regulations, and whether the facts comment on it, should they desire, before action is
indicate responsibility for the damage on members of taken on the claim. That officer shall review the
the command. If the commanding officer finds the investigation and determine whether the claim is
claim payable under these regulations, he shall fix the properly within the provisions of Article 139, UCMJ,
amount to be assessed against the offenders. and these regulations, and whether the facts indicate
responsibility for the damage on members of his
b. Review. If the commanding officer has authority command. If the claim is found payable under these
to convene a general court-martial, no further review regulations, he shall fix the amount to be assessed a-
of the investigation is required as to the redress of gainst the offenders and direct the appropriate com-
injuries to property. If the commanding officer does manding officers to take action accordingly.
not have general court-martial convening authority, the
investigation and the commanding officer's b. Forwarding to SECNAV (JAG). Where it is not
recommendation thereon shall be forwarded to the practical or possible to carry out the procedure in

4-3
subsection 0407a above, the investigation or
investigations shall be forwarded to the Secretary of
the Navy (Judge Advocate General, Code 15) who will
take action in the matter. Commanding officers, in
such a situation, are not to make charges against the
pay of their members until directed by the Secretary of
the Navy (Judge Advocate General).

0408 RECONSIDERATION AND

APPEAL

a. Reconsideration. The OEGCM may, upon a

receipt of a request for reconsideration by either the
claimant or a member who has been assessed
pecuniary liability, reopen the investigation or take any
other action he believes is necessary in the interests of
justice. If the OEGCM contemplates acting favorably
on the request, he will provide all individuals
interested in the claim with notice and an opportunity
to respond. The basis for any change will be noted in
the OEGCM's decision.

b. Appeal. In claims involving $5,000.00 or less, a

claimant or member who has been assessed pecuniary
liability may appeal the decision to the OEGCM. An
appeal must be submitted within 5 days of receipt of
the OEGCM's decision. Appeals will be forwarded,
via the OEGCM, to the Judge Advocate General for
review and final action. In the event of an appeal, the
imposition of the OEGCM's decision will be held in
abeyance pending the final action by JAG. If it
appears that good cause exists that would make it
impracticable for an appeal to be submitted within 5
days, the OEGCM may, in his discretion, grant an
extension of time, as appropriate. His decision on
extensions is final and nonappealable.

0409 EFFECT OF COURT-MARTIAL

PROCEEDINGS

Administrative action under these regulations is

separate and distinct from, and is not affected by any
disciplinary action against the offender. The two
proceedings are independent. Acquittal or conviction
of the alleged offender by court-martial is evidence for
the administrative action, but is not determinative on
the issue of responsibility for damages under these
regulations.

4-4
 CHAPTER V
RELEASE OF GOVERNMENT INFORMATION

0501 SCOPE
a. FOIA-type public interest
a. Overview b. Privacy interest
b. FOIA requests
c. Privacy Act requests 0508 MAILING LISTS
d. Request for litigation purposes
a. Requests for names and home
PART A -- FREEDOM OF addresses
INFORMATION ACT b. Requests for names and duty
addresses
0502 POLICY
0509 NONJUDICIAL
0503 BACKGROUND PUNISHMENT RESULTS

a. Publication and public inspection 0510 ACTION BY RELEASE

b. Disclosure upon request AUTHORITY

0504 DEFINITIONS a. Records releasable in their entirety

b. Records not available
a. Agency record c. Examination of records
b. FOIA request d. Misaddressed request
c. Release authority e. Denial
d. Initial denial authority (IDA)
0511 ACTION BY IDA
0505 RESPONSIBILITIES
a. Records under IDA's cognizance
a. Minimum requirements b. Partial/total denial
b. Identify the records requested
c. Requests requiring special handling 0512 FEES
d. Time limits
PART B -- PRIVACY ACT
0506 EXEMPTIONS
0513 POLICY
a. Exemption (b)(1)
b. Exemption (b)(2) 0514 BACKGROUND
c. Exemption (b)(3)
d. Exemption (b)(4) a. Publication in the Federal
e. Exemption (b)(5) Register
f. Exemption (b)(6) b. Disclosure to the public
g. Exemption (b)(7) c. Right of access
h. Exemptions (b)(8) and (b)(9) d. Amendment

0515 DEFINITIONS
0507 PUBLIC INTEREST

5-1
 a. Agency PART C -- RELEASE OF OFFICIAL
b. Individual INFORMATION AND
c. Record TESTIMONY FOR
d. System of records LITIGATION PURPOSES
e. Access
f. Disclosure 0522 POLICY
g. Official use
h. Routine use 0523 RELATIONSHIP WITH FOIA AND THE
i. System manager PRIVACY ACT

0516 RESPONSIBILITIES 0524 DEFINITIONS

a. System notices a. Request or demand (legal process)

b. Request for access or amendment b. DON personnel
c. Exempt systems of records c. Litigation
d. Denial authority d. Official information

0517 PROCEDURES 0525 RESPONSIBILITIES

a. Requesting individual a. General

b. System manager b. United States is not a party
c. Blanket requests c. Matters assigned to the Judge Advocate
d. Additional information necessary General
e. Denying a request d. Misdirected requests
f. Time limits
g. Granting access 0526 RECORDS IN THE CUSTODY OF THE
h. Granting amendment NATIONAL PERSONNEL RECORDS
i. Denying the request CENTER
j. Denial authority
0527 MEDICAL AND OTHER RECORDS OF
0518 DISCLOSURE TO OTHERS CIVILIAN EMPLOYEES

a. Intra-agency 0528 PRODUCTION OF OFFICIAL RECORDS

b. Freedom of Information Act IN THE ABSENCE OF A COURT ORDER
c. Routine use
d. Statistical research or reporting a. General
e. Civil or criminal law enforcement activity b. Release of JAG Manual
f. Congress or members of Congress investigations, court-martial records,
g. Court of competent jurisdiction Article 69 and 73 petitions, and
Article 138/1150 complaints of wrongs
0519 DISCLOSURE ACCOUNTINGS c. Affirmative claims files
d. Accounting disclosures from systems of
0520 COLLECTION OF INFORMATION records

a. Personal information 0529 CERTIFICATES OF FULL FAITH AND

b. Collect from the individual CREDIT
c. Privacy Act statement
d. Social Security numbers
0521 SAFEGUARDING
PERSONAL INFORMATION

5-2
 CHAPTER V

RELEASE OF GOVERNMENT INFORMATION

0501 SCOPE instructions. Users are encouraged to review the

controlling directives (listed in sections 0502, 0513,
a. Overview. This chapter discusses the three and 0522) for more detailed information. See
principal types of requests for information or records SECNAVINST 5510.25A and SECNAVINST
likely to be received by naval activities and the 5720.44A.
procedures to follow upon receipt of a request. It does
not apply to routine naval correspondence or to b. FOIA requests. If the requester cites or
congressional inquiries, and should not supersede implicates the Freedom of Information Act, 5 U.S.C. §
governing naval and Department of Defense directives. 552, SECNAVINST 5720.42(series), DODDIR
Commands receiving a request for records or 5400.7 of 29 Sep 97, or DODDIR 5400.7-R of 4 Sep
information from members of the public should 98, refer to Part A of this chapter.
examine the request and determine if it cites or
implicates the Freedom of Information Act (FOIA), c. Privacy Act requests. If the requester cites the
Privacy Act, or related naval or Department of Defense Privacy Act, 5 U.S.C. § 552a, SECNAVINST
regulations. Records or information may also be 5211.5D, DODDIR 5400.11 of 4 Aug 75, or requests
requested for litigation purposes--often to bring suit information about himself or herself retrievable by the
against the Navy. The chapter does not apply to requester's name or other personal identifier, refer to
requests for prepublication review of documents. This Part B of this chapter.
chapter is designed to be a ready reference guide and
is only intended to augment the controlling d. Requests for litigation purposes. If the
requester states or it appears that the information is
requested for litigation purposes, refer to Part C of this
chapter.

PART A--Freedom of Information Act

0502 POLICY

The Freedom of Information Act (FOIA), 5 U.S.C. § on the organization and functions of the Navy and the
552, generally provides that all persons, including policies and procedures by which those functions are
citizens and residents of other countries, have a right of performed in relation to the public.
access to Federal agency records, unless such records
are exempt from disclosure. SECNAVINST 5720.42E 0503 BACKGROUND
(series) and SECNAVINST 5720.45A contain
Department of the Navy policy guidance on FOIA. a. Publication and public inspection. The
SECNAVINST 5720.42 (series) addresses FOIA Freedom of Information Act requires publication in
exemptions, time limits for responses, formal and the Federal Register of information that affects the
informal extension of time limits, appeals procedures, public, e.g., descriptions of agency organization,
fee schedules, and includes in enclosure (4) sample functions, procedures, substantive rules, and
format responses to respond to FOIA requests. statements of general policy. Materials such as
SECNAVINST 5720.45A directs that the public be opinions rendered in the adjudication of cases,
provided, to the maximum extent possible, information specific policy statements, and certain administrative

5-3
staff manuals must be made available for public destroyed, is not an agency record.
inspection. In addition, all records, regardless of
form or format, which have been released under the b. FOIA request. A written request, either citing
FOIA, and that commands have determined have or reasonably implicating the FOIA, 5 U.S.C. § 552,
become or are likely to become the subject of SECNAVINST 5720.42 (series), DODDIR 5400.7 of
subsequent requests for substantially the same 29 Sep 97, or DODDIR 5400.7-R of 4 Sep 98. It
records, must be made available to the public. must describe the record(s) requested sufficiently to
Records falling in these categories that are created on enable knowledgeable naval personnel to identify the
or after 1 November 1996, must be made available to desired records with a reasonable amount of effort.
the public electronically, e.g., posted on a command Also, the request must address the requester's
website. willingness to pay fees.

b. Disclosure upon request. All other Navy c. Release authority. Commanding officers and
records--those not required to be published in the heads of Navy and Marine Corps activities authorized
Federal Register or made available for public to furnish records.
inspection--are subject to disclosure upon receipt of a
proper request for access, unless exempt. d. Initial denial authority (IDA). An official who
may withhold records under FOIA, either in whole or
0504 DEFINITIONS in part, based on the FOIA exemptions. IDA's may
also grant or deny requests for reductions or fee
a. Agency record. An agency record includes waivers. See paragraph 6e of SECNAVINST 5720.42
all books, papers, maps, photographs, machine (series) for a list of IDA's.
readable materials, or other documentary materials,
regardless of physical form or characteristics, made or 0505 RESPONSIBILITIES
received by an agency of the United States
Government under Federal law or in connection with a. Minimum requirements. The minimum
the transaction of agency business and in the agency's requirements for a FOIA request are: (1) the request
control at the time the FOIA request is made. An cites or implicates the FOIA; (2) contains a reasonable
agency record is not: description of the information or records requested;
and (3) contains a clear statement of the requester's
(1) Objects or articles, such as structures, willingness to pay fees, a willingness to pay fees up to
parts from wrecked aircraft and ships, furniture, a stated amount, or a request for a fee waiver. If the
paintings, sculpture, three-dimensional models, and FOIA request does not meet these requirements, the
vehicles and equipment. naval activity should answer the inquiry, within 10
working days, to inform the requester of the contents
(2) Anything not a tangible record, such as of a proper request.
an individual's memory or oral communication.
b. Identify the records requested. Commands
(3) Computer software, if not created or used must search their filing systems and existing retrieval
as primary sources of information about organizations, systems if the description provided by the requester
policies, functions, decisions, or procedures of the enables naval personnel to locate the records with
agency. reasonable effort.

(4) Personal records not subject to Navy (1) FOIA does not authorize "fishing
creation or retention requirements, created or main- expeditions," nor are commands required to respond to
tained primarily for a Navy employee's personal blanket requests for all documents. The naval activity
convenience, and not distributed to other agency shall notify the requester if the description does not
employees for their official use. For example, a reasonably describe the records sought and provide
supervisor's personal notes on an employee's perform- guidance on the specificity required to begin a search.
ance, not required to be maintained and used solely as Commands must make reasonable efforts by manual or
a memory aid in preparing evaluations and then automated means to search for the requested records

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that are in electronic format. For additional guidance,
see paragraph 7c of SECNAVINST 5720.42 (series). (4) JAG manual investigations. Requests
shall be forwarded to the following release authorities,
(2) If the requested record was originated by depending upon the type of investigation convened:
another activity, the receiving activity shall not release
or deny such records without consulting the other (a) For a command investigation, to the
naval activity. The receiving activity shall coordinate GCMCA over the command convening the
with that activity before referring the FOIA request investigation.
and copies of the requested documents for direct
response. See subparagraph 0505c. The requester (b) For a litigation-report investigation, to the
shall be notified of this referral. Judge Advocate General, Code 15.

(3) A naval activity does not have to create or (c) For a court or board of inquiry, to the
compile a record. A record may be compiled if it is a Echelon II commander over the command convening
more useful response to the requester, or a lessor the court or board of inquiry.
burden to the naval activity than providing existing
records, and the requester does not object. Commands (5) Mishap investigation reports. Requests should
must provide a requested record in the form or format be forwarded to Commander, Naval Safety Center,
requested if the record is reasonably reproducible in (Attn: Code 03), 375 A Street, Norfolk, VA, 23511-
the form or format requested. Costs of creating or 5796 and the requester so notified.
compiling a record may not be charged to the requester
unless such a fee is equal to or less than the fee which (6) Nuclear and related information. FOIA
would be charged for providing the existing record. requests for nuclear related information shall be
processed under SECNAVINST 5510.36 (series).
c. Requests requiring special handling. Detailed Dissemination of unclassified material on the physical
instructions for records requiring special handling are protection of special nuclear material is prohibited
in paragraph 14 of SECNAVINST 5720.42 (series). when dissemination could reasonably be expected to
The most common requests requiring special handling have a significant adverse effect on the health and
are briefly outlined below: safety of the public, or the common defense and
security, by significantly increasing the likelihood of
(1) Classified records. If the existence or the: (1) illegal production of nuclear weapons, or (2)
nonexistence of the requested information is classified, theft, diversion, or sabotage of nuclear materials,
the naval activity shall refuse to confirm or deny its equipment, or facilities.
existence or nonexistence. If the documents requested
are classified by another agency, contain information (7) Misdirected requests. Misdirected/
classified by another agency, or if the head of the misaddressed requests shall be promptly readdressed
agency is not the classifying authority, the agency shall and forwarded to the cognizant or originating activity
refer the request and copies of the requested docu- for action and the requester so notified.
ments to the originating agency or classification
authority. d. Time limits. The responsible naval activity
has 20 working days from receipt to respond to a
(2) Naval Criminal Investigative Service FOIA request, excluding weekends and holidays. If
reports. Requests should be forwarded to the Naval the naval activity cannot respond within 20 days, it
Criminal Investigative Service, Washington Navy may:
Yard, DC 20374-5000, and the requester so notified.
(1) Inform the requester of the reasons for the
(3) Courts-martial records. Requests should delay, that the delay may be treated as an initial denial
be referred to the Office of the Judge Advocate of the request, and the requester shall be informed of
General, (Code 40), 1322 Patterson Ave, SE, Suite the appeal rights. This is considered a formal
3000, Washington Navy Yard, DC 20374-5066, and extension of time and requires the signature of an IDA;
the requester so notified. or

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 matters specifically exempted by statute, such as
(2) Negotiate an informal extension of time with medical quality assurance records and special nuclear
the requester that is mutually agreeable. This does not material information. The Privacy Act is not an
require the IDA's signature. exemption statute under (b)(3).
(3) In the case of a significant number of requests d. Exemption (b)(4) exempts records containing
that preclude a response determination within 20 days, trade secrets or commercial or financial information,
commands shall process the requests in a multi-track that a naval activity receives from outside the Govern-
system based on the amount of time and work involved ment, with the understanding that the information will
in processing the request, and whether the request be retained as privileged or confidential. Examples
qualifies for expedited processing. A multi-track include information received in confidence for a con-
system shall have, at a minimum, three tracks. These tract, bid, proposal, or scientific or manufacturing
tracks shall consist of simple cases, complex cases, and process.
cases that qualify for expedited processing. Within
each track, all requests shall be processed on a first-in, e. Exemption (b)(5) exempts those records
first-out basis. See SECNAVINST 5720.42 (series) containing internal advice, recommendations, and
for further guidance on multi-track processing and subjective evaluations pertaining to the decision-
expedited processing. making process. Reasonably segregable factual
portions must be released unless they are so inter-
(4) For additional guidance, see paragraph 8 of twined with exempt information that release would
SECNAVINST 5720.42 (series). reveal the exempt information or be detrimental to the
decision-making process. Direction or orders from a
0506 EXEMPTIONS superior to a subordinate must be released if it is policy
guidance or a final agency decision. If the (b)(5)
A naval record may be withheld from disclosure if material is later adopted as the agency final opinion, it
exempt. For additional guidance, see enclosure (4) of is not exempt. If the (b)(5) material is incorporated by
SECNAVINST 5720.42 (series). reference into a final agency opinion, it will also lose
its exempt status. Examples of exempt information
a. Exemption (b)(1) exempts those records include nonfactual portions of staff papers, evalua-
properly and currently classified. tions, or investigations, advice, suggestions, or
evaluations, and information prepared in anticipation
b. Exemption (b)(2) exempts those records of administrative proceedings or litigation.
related solely to the internal personnel rules and
practices of an agency, such as rules, regulations, f. Exemption (b)(6) exempts information in
orders, manuals, directives, and instructions. Records personnel and medical files, and similar information in
withheld include: other files, if release would be a clearly unwarranted
invasion of personal privacy. The public interest in the
(1) Internal matters of relatively trivial nature requested information must be balanced against the
created primarily for internal house keeping purposes privacy interest threatened. See paragraph 14b(2) of
(low (b)(2)). The administrative burden of release SECNAVINST 5211.5D for personal information
must be weighed against the public interest in the releasable under FOIA. Paragraph 0507 below
requested information. Section 0507 below contains a contains a discussion of FOIA-type public interest.
discussion of FOIA-type public interest.
g. Exemption (b)(7) exempts records and
(2) Substantive internal matters that would information compiled for civil, criminal, or military
allow circumvention of a statute or agency regulation law enforcement purposes. Examples of information
(high (b)(2)). Examples include classification guides, or records that may be exempt are witness statements
operating manuals for investigators, emergency base or material developed during an investigation. If the
evacuation procedures, and examination questions and subject of the law enforcement record requests the
answers used in training courses. record, it may be withheld only under SECNAVINST
5211.5D. Under limited circumstances, the naval
c. Exemption (b)(3) exempts records containing activity may treat the record as not subject to FOIA.

5-6
Naval activities believing they have a request for a law quarters/housing addresses without the occupant's
enforcement record must refer to the section covering name.
5 U.S.C. § 552(b)(7) found at paragraph 4(f) of
enclosure (4) to SECNAVINST 5720.42 (series). b. Requests for names and duty addresses
h. Exemptions (b)(8) and (b)(9) do not apply to (1) A FOIA request for a list of names and duty
naval activities. addresses of members attached to units that are
stationed in foreign territories, routinely deployable, or
0507 PUBLIC INTEREST sensitive must be denied as exempt from disclosure
under 10 U.S.C. § 130b. Disclosure is a security threat
a. FOIA-type public interest. The public interest to those members because it reveals information about
to be considered under FOIA is the public's interest in their involvement in military actions, the type of naval
obtaining official information that sheds light on the unit, and their presence or absence from their
agency's performance of its statutory duties. In the households. Release aids the targeting of members and
typical case in which one private citizen is seeking their families by terrorists and other persons opposed
information about another, the requester does not to the national policy. Exceptions must be coordinated
intend to discover anything about the conduct of the with Office of the Chief of Naval Operations
agency that has possession of the records, and a (N09B30) or the CMC (ARSE), as appropriate. Units
response to the request would not shed any light on the covered are:
conduct of the Government agency or official. In such
a case where no FOIA-type public interest exists, (a) Those outside the 50 states, District of
release of any private information about an individual Columbia, Commonwealth of Puerto Rico, Guam, U.S.
would constitute a clearly unwarranted invasion of Virgin Islands, and American Samoa.
personal privacy. In evaluating the public interest
apparent in release of the requested records, neither the (b) Routinely deployable units that nor-
identity of the requester nor the purpose for desiring mally deploy from home port or permanent station on a
the request are relevant. periodic or rotating basis to meet operational require-
ments or participate in scheduled exercises, including
b. Privacy interest. A privacy interest may exist routinely deployable ships, aviation squadrons,
in personal information even though the information operational staffs, and all units of the Fleet Marine
has been made available to the general public at some Force. It does not include ships undergoing extensive
place and time. If personal information is not freely yard work or whose primary mission is support
available from sources other than the Federal training, e.g. yard craft and auxiliary aircraft landing
Government, the person to whom that information training ships.
pertains has a privacy interest in its nondisclosure.
Often, the very fact that the Federal Government (c) Units engaged in sensitive operations
expended funds to prepare, index, and maintain are those primarily involved in training for or conduct
records containing personal information and the fact of covert, clandestine, or classified missions, including
the requester invokes FOIA to obtain the private units primarily involved in collecting, handling,
information indicate that the information is not freely disposing, or storing classified information or mate-
available. rials.

0508 MAILING LISTS (2) Lists of names and duty addresses, not
covered by the above policy, are not exempt. Lists
Most naval activities receive FOIA requests for may no longer be withheld under exemption (b)(2).
mailing lists--names and home addresses or names and Prepublished directories and organizational charts must
duty addresses. also be released. There is no administrative burden if
the requested materials are already available in the
a. Requests for names and home addresses. form requested.
Requests for mailing addresses and home addresses
should be denied as a clearly unwarranted invasion of 0509 NONJUDICIAL PUNISHMENT
personal privacy. This includes requests for base RESULTS

5-7
 d. Misaddressed request. If the request has been
Information on nonjudicial punishment will not misaddressed or the records are properly held by
normally be disclosed to the public under FOIA. This another naval activity, promptly refer the request and
is because the public interest in the routine notify the requester.
administrative disposition of employee misconduct e. Denial. If the request must be denied in whole
rarely outweighs the individual's privacy interest in the or in part, advise the requester that the request has been
matter (see section 0507 for definition of "public referred to higher authority (provide name and address
interest"). In order to protect the personal privacy of of IDA), for a release determination and direct
individuals receiving nonjudicial punishment, response. The letter to the IDA shall include a copy of
commands receiving requests for individual the request, a copy of the letter to the requester, all
nonjudicial punishment records should forward the documents responsive to the request, and a recom-
request to their cognizant initial denial authority with mendation as to partial/total denial with the rationale
the recommendation that the existence of the records for the exemptions claimed. In this situation, the
be neither confirmed nor denied, except when the release authority will not release any documents to the
requester is the individual upon who nonjudicial requester.
punishment was imposed. In that situation, the request
is processed under section 0517. Otherwise, disclosure 0511 ACTION BY THE IDA
should only be considered when the events leading to
the nonjudicial punishment are particularly news- a. Records under IDA’s cognizance. When an
worthy or the case involves a senior official abusing IDA receives a FOIA request for records under that
the public trust through office-related misconduct, such officer's cognizance, the IDA shall respond as in
as embezzlement, fraud, or misuse of Government section 0505 above.
property. Publication of the results of NJP to the
command, in accordance with section 0115 of this b. Partial/total denial. When a FOIA request is
Manual, shall not be considered a disclosure as defined forwarded to the IDA with a recommendation for
in section 0515 of this Manual and is not controlled by partial/total denial, the IDA:
this paragraph.
(1) Shall respond within 20 working days. If
0510 ACTION BY RELEASE a response cannot be made within that time frame, the
AUTHORITY following options are available:

Release authorities shall take one of the following (a) Inform the requester of the reasons for
actions within 20 working days after receiving a FOIA the delay, that the delay may be treated as an initial
request: denial of the request, and the requester shall be
informed of the appeal rights. This is considered a
a. Records releasable in their entirety. If the formal extension of time; or
requested records are releasable in their entirety,
forward the requested records stating: whether fees (b) Negotiate an informal extension of
were waived or reduced; what fees are due; or whether time with the requester that is mutually agreeable.
fees must be paid before the records are released. This does not require the IDA's signature.

b. Records not available. If the requested records (2) Shall determine if the record contains
are releasable in their entirety but not yet available, information exempt from FOIA and inform the
notify the requester that the request has been approved requester of the exemptions claimed. If a request is
and the requested records will be forwarded by a denied, a reasonable effort must be made to estimate
specified date. the volume of denied records, and then inform the
requester of the estimate, unless such an estimate
c. Evaluation of records. If the request for would harm an interest protected by the exemptions
examination of records has been approved, notify the pursuant to which the denial is made. Reasonably
requester of the time and place. segregable portions of the requested records must be

5-8
released. The requester shall be informed of the appeal
rights.

(3) Shall determine if the requester's claimed

entitlement to waiver/reduction of feesis warranted. If
the IDA denies the request, the requester shall be
informed of the right to appeal. If the requester
appeals the denial of the waiver/reduction of fees, the
release of the records may be withheld until the fee is
paid or the appellate authority grants a
waiver/reduction of fees.

0512 FEES

Enclosure (3) of SECNAVINST 5720.42 (series)

contains fee guidelines.

PART B--Privacy Act

0513 POLICY Privacy Act system of records may not be disclosed to

the public, unless: the subject of the record consents,
The Privacy Act, 5 U.S.C. § 552a, applies to docu- the disclosure is pursuant to a routine use, released
ments and records in a system of records maintained under one of the twelve statutory exceptions, for an
by an agency from which information is retrieved by official use, or by order of a court of competent
the person's name or other personal identifier, such as a jurisdiction.
Social Security number. The Act balances the
Government's need to maintain information about c. Right of access. An individual has a right of
individuals against the right of individuals to be access to a record maintained under the individual's
protected from unwarranted invasions of their privacy name or personal identifier, unless the record is exempt
by Government collection, maintenance, use, and from or not subject to the Privacy Act.
disclosure of personal information. SECNAVINST
5211.5D contains Department of the Navy policy d. Amendment. An individual may request
guidance on the Privacy Act and prescribes procedures amendment, correction or deletion of a record
for notifying individuals of a system of records pertaining to himself. If the request is denied, the
pertaining to them, granting access to the subject of the individual may file a "statement of dispute," that must
records, reviewing requests to amend records, be disclosed with such records. See section 0518h
disclosing personal information to third parties, and below.
safeguarding personal information.
0515 DEFINITIONS
0514 BACKGROUND
a. Agency. The Department of Defense is the
a. Publication in the Federal Register. Naval agency; all naval activities are subject to the Privacy
activities may not maintain records retrievable by name Act.
or personal identifier unless a system notice has been
published in the Federal Register. Maintaining an b. Individual. A living U.S. citizen or alien
unpublished system of records is a criminal violation. lawfully admitted for permanent residence; or a
OPNAVNOTE 5211 contains published Department member of the U.S. Navy, including a minor. The
of the Navy system notices. legal guardian of an individual or the parent of a minor
has the same rights as the individual.
b. Disclosure to the public. Information in a

5-9
 c. Record. Any item, collection, or grouping of
information about an individual maintained by an (1) The official with custody of the record may
agency by name or personal identifier. Purely private grant access to the requested record even if he is not
notes--such as personal memory refreshers--not the system manager.
required or used by the agency are not agency records.
(2) Only officials designated as denial authori-
d. System of records. A group of records from ties in paragraph 6e of SECNAVINST 5211.5D, may
which information is retrieved by name or personal deny a request for access.
identifier. The capability of retrieving a record by
name or personal identifier, such as by a computer (3) Blanket requests for notification and/or
search, does not create a system of records subject to access to all systems of records within the Navy are not
the Privacy Act. honored. See section 0517c below.
e. Access. An individual or authorized agent,
reviewing or obtaining copies of records, pertaining to c. Exempt systems of records. The system
himself or herself, that are part of a system of records. manager must publish in the Federal Register a notice
of exempt systems. There are two categories of
f. Disclosure. Conveying information from a records exempt from access--a general exemption and
Privacy Act record to an organization or individual, a specific exemption.
not the subject of the record.
(1) The general exemption excuses a system
g. Official use. Officials of the Department of of records from most access provisions of the Act; it is
Defense and the Navy with a demonstrated need for available only for records maintained by the CIA or an
any record to complete a mission or function of the agency whose principal function is law enforcement.
Department, or disclosure prescribed or authorized by
a directive. Known as "on a need-to-know basis." (2) The specific exemption applies to investi-
gatory material compiled for law enforcement pur-
h. Routine use. Disclosure of a record outside the poses not within the general exemption. Enclosure
Department of Defense for a use compatible with the (11) of SECNAVINST 5211.5D lists exempt systems
purpose for which the information was collected and of records.
maintained. The routine use must be in the published
system notice. d. Denial authority. Only authorities in para-
graph 6e of SECNAVINST 5211.5D may deny
i. System manager. Official with responsibility requests for notification, access, or amendment, when
for records in a system, as indicated in the published the records relate to matters within their command, or
system notice. technical or administrative responsibility.

0516 RESPONSIBILITIES 0517 PROCEDURES

a. Systems notices. Systems notices are published a. Requesting individual. The requesting
in the Federal Register and OPNAVNOTE 5211. individual should request the records in writing,
Proposed new, altered, or amended systems of records providing the name of the system of records, full name,
shall be submitted to Chief of Naval Operations Social Security number, and a signed release, if
(N09B30) or Commandant of the Marine Corps (MI3), necessary.
as appropriate. For additional guidance, see paragraph
9 of SECNAVINST 5211.5D. b. System manager. The system manager or
other responsible official shall:
b. Request for access or amendment. The system
manager must establish and make available upon (1) Verify the identity of the requesting in-
request, rules on requests for access or amendment that dividual, such as by employee or military identification
conform to paragraph 6 and enclosures (2) and (3) of card or driver's license, as the subject of the record. If
SECNAVINST 5211.5D. a written request, identity may be verified by the

5-10
requester providing minimum identifying data, such as the requester, and a copy of the record may be
date of birth. If the information is sensitive, additional provided upon agreement to pay duplication fees, or
verification of identity may be required. See paragraph
11a(4)(b) of SECNAVINST 5211.5D. (2) Furnish a copy of the record, if the
requester asked for a copy of the record and agreed to
(2) Grant access to the requested record pay duplication fees, unless fees were waived.
unless exempt.
h. Granting amendment. Amendment should be
c. Blanket requests. Requests seeking granted when information from the requester and all
notification or access to all Navy systems of records other reasonably available related records indicate that
shall not be honored. For example, the requester may the requested amendment will make the record
seek all records maintained by the requester's name or accurate, relevant, timely, and complete.
personal identifier. A command receiving such a
request should inform the requester that: (1) If amendment is warranted, the system
manager shall promptly amend the record and notify
(1) Requests for notification and/or access the requester in writing.
must be made to the system manager for the record
system, as identified in the Federal Register, and (2) The system manager shall notify previous
recipients of the record for whom a disclosure
(2) Requests must either designate the par- accounting was made that the record was amended and
ticular system to be searched or provide sufficient of the substance of the correction.
information for the system manager to determine the
appropriate system. (3) When an individual files a statement of
dispute after a request for amendment has been denied,
d. Additional information necessary. The system the system manager shall annotate the record so the
manager or other custodial official shall inform the dispute is apparent. The system manager shall notify
requester of additional information necessary to previous recipients of the record for whom a disclosure
consider the request. accounting was made that the record has been dis-
puted, provide a copy of the individual's statement, and
e. Denying a request. Denial of an individual's if appropriate, provide a brief statement why the record
request for notification, access, or amendment must be was not amended. For additional guidance, see
in accordance with paragraph 11c of SECNAVINST paragraph 12i of SECNAVINST 5211.5D.
5211.5D. Generally, access will be granted to an
individual unless the system of records has been i. Denying the request. If the system manager or
exempted from access or the particular information other custodial official determines the request should
requested has been compiled in reasonable anticipation be denied, in whole or in part, that officer shall
of litigation. forward the request to the cognizant denial authority
with a copy of the requested record, and
f. Time limits. A request for notification, access, recommendations as to the denial.
or amendment shall be acted on in 10 working days, or
a response to the requester shall indicate when the j. Denial authority. The denial authority shall
request will be acted upon. Action should be follow:
completed within 30 days of receipt by the cognizant
office. (1) Paragraph 6e of SECNAVINST 5211.5D
to deny a request for notification.
g. Granting access. If access should be granted,
the system manager or other custodial official shall so (2) Paragraphs 11c and d of SECNAVINST
inform the requester in writing and: 5211.5D to deny access to a record, in whole or in part.

(1) Inform the requester where and when the (3) Paragraph 12h of SECNAVINST
records may be viewed, that a person may accompany 5211.5D to deny a request for amendment, in whole or

5-11
in part. (1) The activity is authorized by law; and

0518 DISCLOSURE TO OTHERS (2) The head of the agency or instrumentality

made a written request to the head of the activity
Generally, records in a system of records may not be maintaining the record, specifying the record desired
disclosed except pursuant to a written request of the and the law enforcement purpose.
subject of the record or with the prior written consent
of the subject of the record. A complete discussion of f. Congress or members of Congress. Disclosure
exceptions is in paragraphs 14b(1) through (12) of may be made to either House of Congress, or to any
SECNAVINST 5211.5D. The most common excep- committee or subcommittee of Congress to the extent
tions are: the matter is within its jurisdiction. Disclosure is not
authorized to an individual member of Congress acting
a. Intra-agency. Disclosure may be made to other on his own behalf. Members of Congress who seek
Department of the Navy or Department of Defense access to records on behalf of their constituent are
personnel who need the records in the performance of provided the same information that the constituent
their duties, if compatible with the purpose for which would be entitled to receive. For additional guidance,
the information is maintained. See section 0515g see SECNAVINST 5730.5G, SECNAVINST 5720.42
above and paragraph 14b(1) of SECNAVINST (series), or SECNAVINST 5211.5 (series).
5211.5D.
g. Court of competent jurisdiction. Disclosure
b. Freedom of Information Act. If an agency may be made in response to an order of a court of com-
receives a FOIA request for information in a system of petent jurisdiction signed by a judge.
records not exempt under FOIA, the information must
be disclosed. 0519 DISCLOSURE ACCOUNTINGS

(1) Records traditionally released to the public A disclosure accounting for each record disclosed from
-such as press releases--may be disclosed without a a system of records must be made by the activity
FOIA request. See SECNAVINST 5720.44A. maintaining the record, except for:

(2) If a FOIA exemption--generally exemption a. Intra-agency disclosures;

(b)(6)--applies to information in a Privacy Act record,
the agency may not make a discretionary FOIA b. Disclosures pursuant to FOIA;
release. See section 0517 above.
c. Disclosures to Congress or members of Con-
c. Routine use. Disclosure may be made for a gress; or
routine use, as defined in section 0515h above,
compatible with the purpose for which the record is d. Disclosures for statistical research.
collected and listed as a routine use in the published
system notice. For additional guidance, see paragraph 14f of SEC-
NAVINST 5211.5D.
d. Statistical research or reporting. Disclosure
may be made upon written assurance that the record 0520 COLLECTION OF INFORMATION
will be used solely as a statistical research or reporting
record, and the record is not individually identifiable. a. Personal information. Personal information is
information private or intimate to the individual and
e. Civil or criminal law enforcement activity. not related solely to official functions. It ordinarily
Disclosure may be made to another agency or does not include information such as time, place, and
instrumentality of any governmental jurisdiction, manner of, or reasons and authority for, an individual's
controlled by the United States, for a civil or criminal act or omission directly related to official duties.
law enforcement activity if:
b. Collect from the individual. Personal

5-12
information shall be collected to the maximum extent d. Social Security numbers. A Privacy Act
possible from the individual, except when: statement must be provided when requesting a Social
Security number. A Social Security number may be
(1) There is a need to ensure the accuracy of requested even if not required by Federal statute, if the
the information supplied by verifying the information individual is informed that disclosure is voluntary.
through a third party.
(2) Information can only be obtained through a 0521 SAFEGUARDING PERSONAL
third party. INFORMATION

(3) Obtaining information directly from the Every activity maintaining a system of records shall
individual would involve exceptional practical difficul- prevent inadvertent or unauthorized disclosures
ties or unreasonable cost.

c. Privacy Act statement. A Privacy Act

statement must be provided when individuals supply
personal information about themselves. The individual
need not sign the Privacy Act statement. The Privacy
Act statement must contain:

(1) Authority for the solicitation (statute or

Executive Order).

(2) Purposes for which the information is used.

(3) Brief summary of routine uses for the

information, as published in the Federal Register.

(4) Whether disclosure is mandatory or volun-

tary, and effects of nondisclosure.

PART C--Release of Official Information and Testimony for Litigation Purposes

0522 POLICY FOIA or Privacy Act request pertains to litigation to

which the United States is a present or potential party,
Official documents and information should be made the release authority should notify the Judge Advocate
reasonably available for use in Federal courts, State General or the General Counsel, as appropriate. For
courts, foreign courts, and other governmental pro- additional guidance, see paragraph 3 in enclosure (3)
ceedings unless the information is classified, privi- of SECNAVINST 5820.8A. Requests for Privacy Act
leged, or otherwise protected from public disclosure. records must be accompanied by a written release from
Requests for documents, testimony, depositions, or the subject of the record, a court order, or a subpoena
interviews of witnesses in connection with litigation signed by a judge of a court of competent jurisdiction.
shall be processed under SECNAVINST 5820.8A. The release official must do a disclosure accounting.
See Appendix A-2-b.
0523 RELATIONSHIP WITH FOIA AND THE
PRIVACY ACT 0524 DEFINITIONS

This section does not control releases under FOIA or a. Request or demand (legal process). Sub-
the Privacy Act, nor does it preclude treating any poena, order, or other request by a Federal, State, or
written request as a FOIA or Privacy Act request. If a foreign court of competent jurisdiction, by any agency

5-13
thereof, or by any party or other person for production, personnel as part of their official duties, or because of
disclosure, or release of official Department of their official status.
Defense information, or for appearance, deposition, or
testimony of DON personnel as witnesses. The 0525 RESPONSIBILITIES
guidance set forth in this part, and SECNAVINST
5820.8A, do not apply to release of official a. General. Requests for official information and
information or testimony by DON personnel in the records will be processed in accordance with the
following situations: guidance set out in SECNAVINST 5820.8A.
Generally, in cases where the United States is not, and
(1) Before courts-martial or administrative is not reasonably anticipated to become, a party, the
proceedings convened or conducted by any DOD responsibility to act as determining authority has been
component; delegated to general court-martial convening
(2) In response to requests by Federal Govern- authorities and those commands and activities with a
ment counsel or counsel representing the interests of staff judge advocate assigned. Requests for official
the United States; information should be sent directly to the command
that holds the documents desired or at which the
(3) As required by the Defense Industrial witness is employed or assigned for duty. In all cases
Personnel Security Program under DODDIR 5220.6 of where the United States is, or may reasonably be
12 August 1985; and expected to be, a party, the determining authority is the
Judge Advocate General or the General Counsel, as
(4) Release of JAG Manual investigations to appropriate.
next of kin, and their representatives, concerning
deceased or incompetent naval personnel. (1) For guidance on the information to be
included in the request, see SECNAVINST 5820.8A,
b. DON personnel. Active duty and former 57 Federal Register 2462 (1992), and 58 Federal
military personnel of the naval service, including Register 53883 (1993)(codified at 32 C.F.R. § 725).
retirees, personnel of other Department of Defense
components serving with a naval component, Naval (2) If the request is for records in a Privacy
Academy midshipmen, present and former employees Act system of records as defined in section 0515d
of the Navy and Marine Corps including above, the request must be accompanied by a written
nonappropriated fund employees, foreign nationals release from the subject of the record, a court order, or
performing services for the Navy and Marine Corps a subpoena signed by a judge of a court of competent
overseas, under provisions of Status of Forces agree- jurisdiction.
ments, and other specific individuals or entities hired
through contractual agreements. (3) Copies only will be provided.

c. Litigation. All pretrial, trial, and post-trial (4) If compliance is inappropriate for any
stages of existing or reasonably anticipated judicial or reason, such as the records contain classified or
administrative actions, hearings, investigations, or privileged information, the court order or subpoena
similar proceedings before civilian courts, commis- shall be forwarded to the Judge Advocate General or
sions, boards (including the Armed Services Board of Associate General Counsel (Litigation), under Appen-
Contract Appeals), or other tribunals, foreign and dix A-5-a, and the parties notified.
domestic. Includes responses to discovery requests,
depositions, and other pretrial proceedings, and formal (5) Release of classified information for civi-
or informal requests by attorneys or others involving or lian proceedings--criminal or civil--must be coor-
reasonably anticipated to involve litigation. dinated with Chief of Naval Operations (OP-092)
under OPNAVINST 5510.1H.
d. Official information. Information in the
custody and control of the Department of Defense or b. United States not a party. If the United States
its components; includes information acquired by is not, and is not reasonably anticipated to become a
Department of Defense personnel or component party to the proceedings, the production in Federal or

5-14
State courts of evidentiary material from the service, 63132. If the National Personnel Records Center
employment, pay, or medical records of dependents or maintains records responsive to the request, that Center
members of the naval service, is authorized upon shall forward such records with the request to: (1)
receipt of a request complying with SECNAVINST Commander, Naval Military Personnel Command or
5820.8A, accompanied by a subpoena, court order, or (2) Commandant of the Marine Corps (Code M), as
other request signed by the judge of a court of com- appropriate.
petent jurisdiction. The specific authority of the Judge
Advocate General is not required. The Associate
General Counsel (Litigation), must be notified to
ensure that service has been properly effected. See 0527 MEDICAL AND OTHER RECORDS OF
Appendix A-5-a. When the request for production CIVILIAN EMPLOYEES
involves claims in favor of the Government, the
affirmative claims office at the Naval Legal Service If the United States is not, and is not reasonably
Office with territorial responsibility should be notified. anticipated to become, a party, records of civilian
Any travel by naval personnel to comply with such a employees other than medical records may be pro-
subpoena, court order, or other request must be at no duced upon receipt of a court order, or a subpoena
expense to the Government. signed by a judge of a court of competent jurisdiction,
without specific authority from the Secretary of the
c. Matters assigned to the Judge Advocate Navy (Judge Advocate General) or the Associate
General. If a naval activity receives a litigation request General Counsel (Litigation), as appropriate, unless
for matters assigned to the Judge Advocate General classified or For Official Use Only information, such
under SECNAVINST 5430.27A or Article 0331, U.S. as loyalty or security records, is involved. If such
Navy Regulations, 1990, it shall refer the matter to the records are involved, release must be coordinated with
Deputy Assistant Judge Advocate General (DAJAG) the Chief of Naval Operations (N09B30). The Asso-
for International Law, Admiralty, General Litigation, ciate General Counsel (Litigation) must be notified to
or Claims and Tort Litigation, according to the verify that service has been properly effected.
responsibilities assigned in this Manual. The ap- Disclosure of records relating to compensation benefits
propriate DAJAG will respond. Matters clearly not administered by the Office of Workers' Compensation
within the areas of responsibility for a particular Programs of the Department of Labor is governed by
DAJAG shall be referred to the DAJAG for General SECNAVINST 5720.42 (series) and SECNAVINST
Litigation. 5211.5D, as appropriate. Where a record custodian
will appear to testify with original records, the
d. Misdirected requests. A naval activity receiv assistance of the United States Attorney or United
ing a demand for official information originated by States Marshal should be requested so custody of the
another Department of Defense component shall original records may be maintained.
forward appropriate portions of the request to the
originating component for action. 0528 PRODUCTION OF OFFICIAL RECORDS
IN THE ABSENCE OF COURT ORDER
0526 RECORDS IN THE CUSTODY OF THE
NATIONAL PERSONNEL a. General. Release of official records outside the
RECORDS CENTER Navy in the absence of a court order is governed by
SECNAVINST 5720.42 (series) (FOIA) and
Court orders or documents with the legal effect of SECNAVINST 5211.5D (PA), and if requested for
court orders, i.e. those signed by a judge of a court of litigation purposes, by SECNAVINST 5820.8A.
competent jurisdiction, demanding information from,
or the production of, service or medical records in the b. Release of JAG Manual investigations, court-
custody of the National Personnel Records Center for martial records, Articles 69 and 73, UCMJ, petitions,
former (deceased or discharged) Navy and Marine and Article 138/1150 complaints of wrong.
Corps members shall be served upon Director,
National Personnel Records Center, General Services (1) JAG Manual investigation (including
Administration, 9700 Page Boulevard, St. Louis, MO enclosures). Requests shall be forwarded to the

5-15
following release authorities, depending upon the type disclosure accounting. See Appendix A-2-b.
of investigation convened:
0529 CERTIFICATES OF FULL FAITH AND
(a) For a command investigation, to the CREDIT
GCMCA over the command convening the
investigation. The Judge Advocate General, the Deputy Judge
Advocate General, and the Assistant Judge Advocates
General may execute certificates of full faith and credit
(b) For a litigation-report investigation, to certifying the signatures and authority of officers of the
the Judge Advocate General, Code 15. Department of the Navy.

(c) For a court or board of inquiry, to the

Echelon II commander over the command convening
the court or board of inquiry.

(2) Court-martial records and Articles 69 and

73, UCMJ, petitions. The Judge Advocate General is
the release/denial authority for all records under this
subparagraph. Any request for court-martial records or
Article 69 and 73 petitions shall be promptly
readdressed and forwarded to the Judge Advocate
General, Attn: Code 40, and the requester so notified.

(3) Article 138/1150 complaints of wrongs.

Any request for release of the Article 138/1150
complaint file outside the Department of the Navy
shall be forwarded to the Judge Advocate General,
Code 13.

c. Affirmative claims files. Affirmative claims

files (including Medical Care Recovery Act files),
except for copies of reports or investigations prepared
under this Manual, or containing classified or privile-
ged information, may be released by the commanding
officer of the Naval Legal Service Office having
cognizance over the claim at issue, to insurance
companies to support claims; to civilian attorneys
representing the injured party and the Government's
interests; and to other components of the Department
of Defense, without the prior approval of the Judge
Advocate General, if the amount of the claim is within
the settlement authority of the releaser. When the
request involves material related to claims in favor of
the Government, the record holder should notify the
affirmative claims officer at the Naval Legal Service
Office with territorial responsibility.

d. Accounting disclosures from systems of re-

cords. When records in a system of records are
released, the release official shall consult SEC-
NAVINST 5211.5D and section 0519 above on a

5-16
 APPENDIX A

Department of the Navy

Litigation Points of Contact

I. Office of the Judge Advocate General

A. COGNIZANCE: Matters involving military personnel law, military justice, torts, admiralty,
international law, affirmative claims such as the Medical Care Recovery Act, and Freedom of Information
Act and Privacy Act suits in which the Judge Advocate General was the appellate authority.
Responsibility for environmental suits is shared with the Office of the General Counsel.

B. ADDRESS: Office of the Judge Advocate General

1322 Patterson Ave, SE, Suite 3000
Washington Navy Yard, DC 20374-5066

The subject matter of the correspondence forwarded will determine the appropriate code
designation:

(1) Suits against the United States or U.S. citizens in

foreign courts -- Code 10 (International and Operational Law)

(2) Admiralty cases -- Code 11 (Admiralty and Maritime Law)

(3) Affirmative claims, including the Medical Care Recovery

Act, and actions under the Federal Tort Claims Act and
Driver's Act -- Code 15 (Claims, Investigations, and Tort Litigation)

(4) All other cases under cognizance of the Judge Advocate

General other than those described in subparagraphs (1),
(2), and (3) above, including Freedom of Information Act and
Privacy Act suits -- Code 14 (General Litigation)

II. Office of the General Counsel

A. COGNIZANCE: Matters involving commercial law, including contract disputes arising out
of maritime contracts (e.g., contracts for the repair and overhaul of naval vessels), civilian personnel law,
real property, and Freedom of Information Act and Privacy Act suits in which the General Counsel denied
the appeal. Responsibility for environmental law is shared with the Office of the Judge Advocate
General.

B. ADDRESS: Associate General Counsel (Litigation)

Office of the General Counsel
720 Kennon Street, SE, Bldg 36
Washington Navy Yard, DC 20374-5023

A-5-a(17)
III. Points of Contact

The principal point of contact for the Office of General Counsel is the Associate General Counsel
(Litigation), telephone (202) 685-6559, FAX (202) 685-6793. The points of contact for matters within
the purview of the Office of the Judge Advocate General vary according to the subject matter involved
(see paragraph IB(1) -- (4), above). Telephone numbers for the Office of the Judge Advocate General
are:

A. International and Operational Law, Code 10 -- (703) 697-9161

DSN: 227-9161
FAX--(703) 695-8073

B. Admiralty and Maritime Law, Code 11 -- (202) 685-5040

DSN: 325-5040
FAX--(202)685-5471

C. General Litigation, Code 14 -- (202) 685-5450

DSN: 325-5450
FAX -- (202) 685-5472

D. Claims, Investigations, and Tort Litigation, Code 15 -- (202) 685-4600

DSN: 325-4600
FAX--(202)685-5484

E. OJAG Library FAX -- (202) 685-7161

DSN:325-7161

IV. Marine Corps Points of Contact

A. Staff Judge Advocate to the Commandant (CMC (JAR)) for matters referred to the Judge Advocate
General -- (703) 614-2510
DSN: 225-2510
FAX -- (703) 695-1934

B. Counsel to the Commandant (CMC (CL)) for matters referred to the Office of General Counsel –
(703) 614-2150
DSN: 224-2150
FAX -- (703) 693-4453

A-5-a(2)

5-18
 CHAPTER VI
DELIVERY OF SERVICEMEMBERS, CIVILIANS, AND DEPENDENTS
--SERVICE OF PROCESS AND SUBPOENAS--
STATE TAX AND REGULATORY AUTHORITY

0601 SCOPE d. Coordination with the

Commandant of the Marine Corps
PART A -- DELIVERY OF
PERSONNEL 0607 AGREEMENT REQUIRED PRIOR
TO DELIVERY TO STATE
0602 DELIVERY OF PERSONS AUTHORITIES
REQUESTED BY STATE
AUTHORITIES IN CRIMINAL a. Delivery under Article 14, UCMJ
CASES c. Delivery under Interstate Agreement on
Detainers Act
0603 DELIVERY WHEN PERSONS ARE
WITHIN TERRITORIAL LIMITS OF 0608 DELIVERY OF PERSONS TO
THE REQUESTING STATE FEDERAL AUTHORITIES

0604 DELIVERY WHEN PERSONS ARE a. Authority to deliver

BEYOND TERRITORIAL LIMITS OF b. Agreement not required of Federal
THE REQUESTING STATE authorities

a. General 0609 DELIVERY OF PERSONS TO

b. Waiver of extradition FOREIGN AUTHORITIES
c. Fugitive warrants
d. Members stationed 0610 CIRCUMSTANCES IN WHICH
outside the United States DELIVERY IS REFUSED

0605 PERSONS STATIONED OUTSIDE a. Disciplinary proceedings pending

THE UNITED STATES b. When delivery may be refused
c. Reports required
a. Persons desired by local
U.S. authorities 0611 MEMBERS RELEASED BY CIVIL
b. Members desired by U.S. AUTHORITIES ON BAIL OR ON
Federal authorities THEIR OWN RECOGNIZANCE

0606 AUTHORITY OF THE JUDGE 0612 INTERVIEWING MEMBERS OR

ADVOCATE GENERAL AND OF CIVILIAN EMPLOYEES BY
THE GENERAL COUNSEL FEDERAL CIVILIAN
INVESTIGATIVE AGENCIES
a. Authority of the Judge Advocate
General
b. Authority of the General Counsel
b. Points of contact

6-1
0613 REQUEST FOR DELIVERY OF 0618 MEMBERS OR CIVILIAN
MEMBERS SERVING SENTENCE EMPLOYEES SUBPOENAED AS
OF COURT-MARTIAL WITNESSES IN FEDERAL COURTS

a. General a. Witnesses on behalf of Federal

b. Interstate Agreement on Government
Detainers Act b. Witnesses on behalf of non
c. Article 14, UCMJ governmental parties
d. Forms
0619 NAVAL PRISONERS AS
0614 REQUEST FOR DELIVERY OF WITNESSES OR PARTIES IN
MEMBERS SERVING SENTENCE CIVILIAN COURTS
OF A STATE COURT
a. Criminal actions
a. General b. Civil actions
b. Interstate Agreement on
Detainers Act 0620 INTERVIEWS AND DEPOSITIONS
IN CONNECTION WITH CIVIL
0615 REQUEST FOR INJUNCTIVE LITIGATION IN MATTERS
RELIEF (HABEAS CORPUS, TEM- PERTAINING TO OFFICIAL DUTIES
PORARY RESTRAINING ORDERS,
ETC.) AND SERVICE OF PROCESS a. Contents of the request
BY MAIL b. Factual testimony
c. Expert or opinion testimony
a. General d. Service of process on the General Counsel
b. Reports required e. Fees and expenses

PART B -- SERVICE OF PROCESS 0621 SUITS AGAINST THE UNITED

AND SUBPOENAS UPON STATES
PERSONNEL
a. General
0616 SERVICE OF PROCESS UPON b. Reports to the Judge Advocate General
PERSONNEL c. Reports to the General Counsel
d. Cases involving civilian employee matters
a. General e. Initial and supplemental reports
b. Service of process arising
from official duties 0622 REPOSSESSION OF PERSONAL
c. Service of process of foreign courts PROPERTY
d. Leave or liberty to be granted persons
served with process PART C -- LIAISON WITH THE
e. Report where service not allowed DEPARTMENT OF JUSTICE

0617 MEMBERS OR CIVILIAN 0623 LITIGATION REPORTS AND

EMPLOYEES SUBPOENAED PLEADINGS
AS WITNESSES IN STATE
COURTS

6-2
0624 LIAISON WITH THE U.S. 0630 STATE AND LOCAL TAXATION OF
ATTORNEY AND OTHER ON-BASE SALES
OFFICIALS OF THE DEPARTMENT
OF JUSTICE (INCLUDING 0631 STATE AND LOCAL TAXES,
OFFICIALS OF THE INCLUDING HOTEL TAXES AND
UNITED STATES MARSHAL THE FEDERAL TRAVELLER
SERVICE)
0632 LIABILITY OF MILITARY
PART D -- MISDEMEANORS PERSONNEL AND DEPENDENTS
COMMITTED ON FOR STATE AND LOCAL TAXES
NAVY AND MARINE
CORPS INSTALLATIONS a. In general
b. Income taxes
0625 GENERAL c. Personal property taxes and
vehicle registration
0626 PROSECUTION BEFORE d. Assistance
FEDERAL MAGISTRATES

a. Responsibility of the Department of

Justice
b. Designation of Navy and Marine Corps
officers to conduct prosecutions

PART E -- APPEARANCES BY
JUDGE ADVOCATES
IN CIVIL COURT
AND/OR CIVIL
ADMINISTRATIVE
PROCEEDINGS

0627 ON BEHALF OF MEMBERS

PART F -- STATE TAX AND

REGULATORY
AUTHORITY

0628 BACKGROUND

0629 STATE REGULATION OF FEDERAL

FUNCTIONS, INCLUDING LIQUOR
SALES

a. Application of State law

b. Federal immunity
c. Private individuals
d. Demands for compliance

6-3
 CHAPTER VI
DELIVERY OF SERVICEMEMBERS, CIVILIANS, AND DEPENDENTS
--SERVICE OF PROCESS AND SUBPOENAS--
STATE TAX AND REGULATORY AUTHORITY

0601 SCOPE
Paragraphs 0616 through 0624 provide procedures for
This chapter provides direction and guidance for responding to the initiation and processing of civil
various situations where a military commander is litigation, whether or not the Department of the Navy
asked to provide or, at a minimum, permit the taking of is a party. Paragraphs 0625 through 0627 provide
personnel, property, or records from a military guidance for dealing with the Department of Justice in
installation by civilian authorities. Paragraphs 0602 criminal and civil prosecutions. Finally, paragraphs
through 0615 generally deal with requests connected 0628 through 0632 provide guidance on State attempts
with State or Federal criminal prosecutions. to tax or regulate activities or personnel aboard
military installations.

PART A -- DELIVERY OF PERSONNEL

0602 DELIVERY OF PERSONS REQUESTED 0603 DELIVERY WHEN PERSONS ARE

BY STATE AUTHORITIES IN WITHIN TERRITORIAL LIMITS OF
CRIMINAL CASES THE REQUESTING STATE

Part A of this chapter deals with requests by State When the delivery of any member or civilian is
authorities for the surrender of members or civilians requested by local civil authorities of a State for an
pursuant to arrest warrants or similar process, generally offense punishable under the laws of that jurisdiction,
in connection with a criminal prosecution. Responding and such person is located at a Navy or Marine Corps
to such requests by a State for delivery of members or installation within the requesting jurisdiction, or
civilian employees involves balancing the Federal aboard a ship within the territorial waters of such
interest in preserving sovereign immunity and the jurisdiction, commanding officers are authorized to
productivity, peace, good order, and discipline of the and normally will deliver such person when a proper
installation against the right of the State to exercise its warrant is issued. Additionally, the cognizant Fleet
jurisdiction. Additionally, by regulation, naval and Commander (or the equivalent Echelon II Marine
Marine authorities are limited in the extent to which Corps Commander) may, after coordination with the
they can directly assist such an act. Commands should Deputy Assistant Judge Advocate General (General
respond to such requests as set out below, generally Litigation), issue guidance authorizing local
using the minimum authority necessary to preserve the commanders to deliver any such persons to civil
Federal interests without unduly restricting State authorities who are acting without a warrant under
jurisdiction. conditions in which state law permits warrantless
arrest. In the case of a member, delivery will only be
effected upon compliance with section 0607, subject
to the exceptions in section 0610 and, in the case of
civil authorities acting without a warrant, any
additional exceptions prescribed by the above-
designated Commander. A judge advocate of the

6-4
Navy or Marine Corps should be consulted before procedures of subsection c apply. The rule discussed
delivery is effected. The rule discussed above above applies equally to civilian employees and
applies equally to civilian employees and civilian civilian contractors and their employees when located
contractors and their employees when located on a on a Department of the Navy installation not within the
Navy or Marine Corps installation, except that requesting State, except that compliance with section
compliance with section 0607 and consideration of 0607 and consideration of section 0610 are not
section 0610 are not required. (For purposes of this required.
chapter, “State” includes the District of Columbia,
territories, commonwealths, and all possessions or b. Waiver of extradition
protectorates of the United States.) Commands
should normally not become actively involved in (1) Any member may waive formal
civilian law enforcement. See SECNAVINST extradition. A waiver must be in writing and be
5820.7. When a command has determined that a witnessed. It must include a statement that the member
person is to be delivered in response to a valid signing it has received counsel of either a military or
warrant, the following guidance should be civilian attorney prior to executing the waiver, and it
considered. If the person to be delivered is a military must further set forth the name and address of the
member, the member may be ordered to report to a attorney consulted. The form for waiver should be
location designated by the commanding officer (for substantially as that in Appendix A-6-a.
example, to the base legal office) and surrendered to
civil authorities under Article 14, UCMJ. If the (2) In every case where there is any doubt as
person to be delivered is a civilian, the person may be to the voluntary nature of a waiver, such doubt shall be
invited to report to the designated space for delivery. resolved against its use and all persons concerned will
If the civilian refuses, the civilian authorities may be be advised to comply with the procedures set forth in
escorted to a place where the civilian is located in subsection c, below.
order that delivery may be effected. A civilian may
be directed to leave a classified area. All should be (3) Executed copies of all waivers will be
done with minimum interference to good order and mailed to the Judge Advocate General immediately
discipline. after their execution.

0604 DELIVERY WHEN PERSONS ARE (4) When a member declines to waive
BEYOND TERRITORIAL LIMITS OF extradition, the nearest naval legal service Office or
THE REQUESTING STATE Marine Corps staff judge advocate shall be informed
and shall confer with the civil authorities as
a. General. When State civil authorities request appropriate. The member concerned shall not be trans-
delivery of any member of the Navy or Marine Corps ferred or ordered out of the State in which he is then
for an alleged crime or offense punishable under the located without the permission of the Secretary of the
law of the jurisdiction making the request, and such Navy (Judge Advocate General), unless a fugitive
member is not attached to a Navy or Marine Corps warrant is obtained as set forth in subsection c, below.
activity within the requesting State or a ship within the
territorial waters thereof, the following action will be c. Fugitive warrants
taken. Any officer exercising general court-martial
jurisdiction, or officer designated by him, or any (1) A fugitive warrant, as used in this chapter,
commanding officer, after consultation with a judge is a warrant issued by a State court of competent
advocate of the Navy or Marine Corps, is authorized jurisdiction for the arrest of a member. Normally, a
(upon compliance with the provisions of this section State requesting delivery of a member from another
and section 0607, and subject to the exceptions in State will issue a fugitive warrant to the State where
section 0610) to deliver such member to make the the member is then located.
member amenable to prosecution. The member may
be delivered upon formal or informal waiver of (2) Upon issuance of a fugitive warrant by
extradition in accordance with subsection b, or upon the requesting State to the State in which the member
presentation of a fugitive warrant, in which case the is located, the latter State will normally request

6-5
delivery of the member to local State authorities. When delivery of any member of the Navy or Marine
Delivery to local State authorities should be arranged Corps is desired for trial in a Federal district court,
by Navy or Marine Corps officers designated in upon appropriate representation by the Department of
subsection a of this section, upon compliance with the Justice to the Secretary of the Navy (Judge Advocate
provisions of section 0607, and subject to the General), the member will be returned to the United
conditions of section 0610 and paragraphs (3) and (4) States at the expense of the Department of the Navy
of this subsection. and held at a military facility convenient to the Depart-
ment of the Navy and to the Department of Justice.
(3) Upon receipt of a request for delivery of a Delivery may be accomplished as set forth in section
member under fugitive warrant to State authorities, if 0608, subject to the exceptions in section 0610.
the member voluntarily waives extradition, the
provisions of subsection b, above, apply. If the mem- 0606 AUTHORITY OF THE JUDGE
ber is delivered to local authorities but refuses to waive ADVOCATE GENERAL AND OF
extradition, he will have the opportunity to contest THE GENERAL COUNSEL
extradition in the courts of the State in which he is
located. a. Authority of the Judge Advocate General. The
Judge Advocate General, the Deputy Judge Advocate
(4) No delivery of a member by Navy or General, and the Assistant Judge Advocates General
Marine Corps officers pursuant to a fugitive warrant or are authorized to act for the Secretary of the Navy in
waiver of extradition shall be effected without the performance of functions under this chapter. This
completion of the agreement required by section 0607 delegation extends to the Deputy Assistant Judge
and execution of such agreement either: (a) by Advocate General (General Litigation), with the
authorities of both the requesting State and the State in exception of actions set forth in sections 0528, 0529,
which the member is located, or (b) by authorities of and 0627. Authority is delegated to the following
the State in which the member is located if such Deputy Assistant Judge Advocates General to act on
authorities, on behalf of the requesting State, accept the the specific sections noted: International Law, sections
full responsibility for returning the member to a 0609, 0616, 0620, 0621, and 0624; Admiralty, sections
command designated by the Department of the Navy. 0616, 0620, 0621, and 0624; Claims, Investigations,
and Tort Litigation, sections 0528, 0616, 0620, 0621,
d. Members stationed outside the United States. and 0624; Criminal Law, sections 0528 and 0627.
When the member sought by State authorities is not
located within the United States, see section 0605. b. Authority of the General Counsel. The
authority of the General Counsel of the Navy is
0605 PERSONS STATIONED OUTSIDE THE prescribed by Navy Regulation [32 C.F.R. §§
UNITED STATES 700.203(a) and (g)] and by appropriate departmental
directives and instructions (e.g., SECNAVINST
a. Persons desired by local U.S. authorities. 5430.25D). The principal areas of responsibility of the
When delivery of any member in the Navy or Marine Office of the General Counsel (OGC) are commercial
Corps, or any civilian employee or dependent, is law, including maritime contract matters (e.g.,
desired for trial by State authorities and the individual contracts for the repair and alteration of naval vessels);
whose presence is sought is stationed outside the civilian employee law at the Headquarters of the
United States, the provisions of DoD Directive 5525.9 Department of the Navy and, through the Judge
of 27 December 1988, Compliance of DoD Members, Advocate General for the remainder of the Navy; real
Employees and Family Members Outside the United property law; and Freedom of Information Act and
States with Court Orders, as implemented in Privacy Act matters as delineated in SECNAVINST
SECNAVINST 5820, will be followed. In all such 5720.42D. The Office of the General Counsel shares
cases, the nearest judge advocate of the Navy or responsibility with the Judge Advocate General for
Marine Corps shall be consulted before any action is environmental law cases.
taken.
c. Points of contact. Commanding officers are
b. Members desired by U.S. Federal authorities. advised to contact their local area judge advocates for

6-6
assistance in referring matters to the appropriate office be forwarded to the Judge Advocate General.
of the Judge Advocate General or General Counsel. b. Delivery under Interstate Agreement on
Appendix A-5-a sets out the litigation points of contact Detainers Act. Special forms, not contained in this
for the Judge Advocate General and the Office of the Manual, are used when delivering prisoners under the
General Counsel. Interstate Agreement on Detainers Act. The Act is
infrequently used and most requests are pursuant to
d. Coordination with the Commandant of the Article 14, UCMJ. See section 0613 for a detailed dis-
Marine Corps. Marine Corps commands shall inform cussion of the Detainers Act.
the Commandant of the Marine Corps (CMC) of all
matters referred to the Judge Advocate General or the 0608 DELIVERY OF PERSONS TO
Office of General Counsel. Copies of all FEDERAL AUTHORITIES
correspondence and documents shall also be provided
to CMC. The Staff Judge Advocate to the a. Authority to deliver. When Federal law
Commandant (CMC (JAR)) shall be advised of all enforcement authorities display proper credentials and
matters referred to the Judge Advocate General. Federal warrants for the arrest of members, civilian
Counsel to the Commandant (CMC (CL)) shall be employees, civilian contractors and their employees, or
advised of matters referred to the Office of General dependents residing at or located on a Department of
Counsel. Appendix A-5-a to this chapter sets out the Navy installation, commanding officers are
litigation points of contact for the Commandant of the authorized to and should allow the arrest of the
Marine Corps. individual sought. The exceptions in section 0610 may
be applied to members. A judge advocate of the Navy
0607 AGREEMENT REQUIRED PRIOR TO or Marine Corps should be consulted before delivery is
DELIVERY TO STATE effected.
AUTHORITIES
b. Agreement not required of Federal authorities.
a. Delivery under Article 14, UCMJ. When The agreement described in section 0607 is not a
delivery of any member of the Navy or Marine Corps condition to the delivery of members to Federal law
to the civilian authorities of a State is authorized, the - enforcement authorities. Regardless of whether the -
member's commanding officer shall, before making member is convicted or acquitted, after final
such delivery, obtain from the Governor or other duly disposition of the case, the member will be returned to
authorized officer of such State a written agreement the Naval Service (provided that naval authorities
that conforms to Appendix A-6-b. The State official desire his return) and the necessary expenses will be
completing the agreement must show that he is paid from an appropriation under the control of the
authorized to bind the State to the terms of the Department of Justice.
agreement. When indicating in the agreement the
naval or Marine Corps activity to which the member 0609 DELIVERY OF PERSONS TO
delivered is to be returned by the State, care should be FOREIGN AUTHORITIES
taken to designate the closest appropriate activity (to
the command to which the member is attached) that Except when provided by agreement between the
possesses special court-martial jurisdiction. The United States and the foreign government concerned,
Department of the Navy considers this agreement commanding officers are not authorized to deliver
substantially complied with when: (1) the member is members or civilian employees of the Department of
furnished transportation (under escort in cases of deliv- the Navy, or their dependents residing at or located on
ery in accordance with section 0613) to a naval or a naval or Marine Corps installation, to foreign
Marine Corps activity as set forth in the agreement; (2) authorities. When a request for delivery of these
the member is provided cash to cover incidental persons is received in a country with which the United
expenses en route thereto; and (3) the Department of States has no agreement or when the commanding
the Navy is so informed. Any departure from the officer is in doubt, advice should be sought from the
agreement set forth in Appendix A-6-b must have prior Judge Advocate General. Detailed information
approval from the Judge Advocate General. As soon concerning the delivery of members, civilian
as practicable, a copy of the delivery agreement shall employees, and dependents to foreign authorities when

6-7
a status of forces agreement is in effect is contained in requested to act as liaison with the court. Nothing in
DoD Directive 5525.1 of 9 April 1985 and SE- this section is to be construed as permitting the
CNAVINST 5820.F. member arrested and released to avoid the obligations
of bond or recognizance by reason of the member's
0610 CIRCUMSTANCES IN WHICH being in the military service. Members shall be
DELIVERY IS REFUSED advised that, in the event the member is ordered not to
leave the jurisdiction of the court, the member shall
a. Disciplinary proceedings pending. When immediately contact his command and request further
disciplinary proceedings involving military offenses instructions. The command may make arrangements
are pending, commanding officers should obtain legal for the member to remain in the court's jurisdiction
guidance from a judge advocate of the Navy or Marine through no-cost TAD to the nearest Naval or Marine
Corps prior to delivery of members to Federal or State Corps activity. If TAD arrangements are impractical,
authorities. or if it appears that the matter cannot be resolved in 30
days, the member's command shall seek guidance and
b. When delivery may be refused. Delivery may assistance from the Navy Personnel Command.
be refused only in the following limited circumstances:
0612 INTERVIEWING SERVICE MEMBERS
(1) Where the accused has been retained for OR CIVILIAN EMPLOYEES BY
prosecution as set forth in section 0125; or FEDERAL CIVILIAN INVESTIGA-
TIVE
(2) When the commanding officer determines AGENCIES
that extraordinary circumstances exist which indicate
that delivery should be refused. Requests by the Federal Bureau of Investigation, Naval
Criminal Investigative Service, or other Federal
c. Reports required. When delivery will be civilian investigative agencies to interview members or
refused, the commanding officer shall report the civilian employees of the DON suspected or accused
circumstances to the Judge Advocate General by of crimes should be promptly honored. Any refusal of
telephone, or by message if telephone is impractical. such a request shall be immediately reported to the
The initial report shall be confirmed by letter setting Judge Advocate General, or the Office of General
forth a full statement of the facts. See RCS JAG 5821- Counsel, as appropriate, by telephone, or by message if
4 (Appendix A-6-c). A copy of the report shall be telephone is impractical. When the employee in
forwarded to the regional coordinator. question is a member of an exclusive bargaining unit, a
staff judge advocate or General Counsel attorney will
0611 MEMBERS RELEASED BY CIVIL be consulted to determine whether the employee has a
AUTHORITIES ON BAIL OR ON right to have a bargaining unit representative present
THEIR OWN RECOGNIZANCE during the interview.

A member of the Navy or Marine Corps arrested by 0613 REQUEST FOR DELIVERY OF
Federal or State authorities and released on bail or on MEMBERS SERVING SENTENCE OF
his own recognizance has a duty to return to his parent COURT-MARTIAL
organization. Accordingly, when a member of the
Navy or Marine Corps is arrested by Federal or State a. General. Article 14, UCMJ (10 U.S.C. § 814),
authorities and returns to his ship or station on bail, or provides authority to honor requests for delivery of
on his own recognizance, the commanding officer, members serving a sentence of a court-martial.
upon verification of the attesting facts, date of trial, and Although seldom utilized, additional authority and
approximate length of time that should be covered by mandatory obligation to deliver such members are pro-
the absence, shall grant liberty or leave to permit vided by the Interstate Agreement on Detainers Act
appearance for trial, unless this would have a serious (18 U.S.C. Appendix, § 9, hereinafter "the Act"),
negative impact on the command. In the event that which applies to the Federal agency holding the priso-
liberty or leave is not granted, a judge advocate of the ner. The Department of the Navy, as an agency of the
Navy or Marine Corps should immediately be Federal Government, shall comply with the Act. The

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Act is designed to avoid speedy-trial issues and to aid delivery would severely prejudice the prisoner's
in rehabilitation efforts by securing a greater degree of appellate rights. Execution of the agreement discussed
certainty about a prisoner's future. The Act provides a in section 0607 is a condition precedent to delivery to
way for a prisoner to be tried on charges pending State authorities. It is not required before delivery to
before State courts, either at the request of the State Federal authorities. See section 0608. Unlike delivery
where the charges are pending or the prisoner's under the Act, delivery of custody pursuant to Article
request. When refusal of delivery is intended, comply 14, UCMJ, interrupts execution of the court-martial
with section 0610c. sentence.

b. Interstate Agreement on Detainers Act. Upon d. Forms. The form in Appendix A-6-c with
request under the Act by either State authorities or the appropriate modifications should be utilized in
prisoner, the cognizant Navy or Marine Corps staff reporting refusal of delivery of prisoners.
judge advocate, as appropriate, shall communicate
with the appropriate State officials, and monitor and 0614 REQUEST FOR DELIVERY OF
ensure that the cognizant commander acts on all such MEMBERS SERVING SENTENCE OF A
requests. The Act provides that court-martial STATE COURT
sentences continue to run during temporary custody.
This section does not cover requests between Federal a. General. Ordinarily, members serving
authorities. The procedure set forth in subsection c, protracted sentences resulting from a State criminal
below, shall be applied in such cases. Article 14, conviction will be processed for administrative
UCMJ. discharge by reason of misconduct. See
MILPERSMAN 3630600 and paragraph 6017.3c,
(1) State request. State officials may MARCORSEPMAN. It may, however, be in the best
request delivery of prisoners in military custody under interest of the Naval Service to retain a member charg-
section 2, Article IV, of the Act. Where (1) a detainer ed with a serious offense, subject to military jurisdic-
has been lodged against the prisoner, and (2) the tion, to try the member by court-martial. The Navy
prisoner is serving a sentence (regardless of whether an may obtain temporary custody of incarcerated
appeal is in process), delivery is mandatory unless the members for prosecution with a request to the State
request is disapproved by the cognizant commanding under the Interstate Agreement on Detainers Act. 18
officer of the prisoner. U.S.C. Appendix, §9. The Department of the Navy
may use the Act in the same manner in which State
(2) Prisoner request. The obligation to grant authorities may request members pursuant to section
temporary custody under the Act also applies to 0613.
prisoners' requests to be delivered to State authority.
Section 2, Article III(c) of the Act requires the b. Interstate Agreement on Detainers Act.
custodial official to inform the prisoner of the Military authorities may use the Act to obtain
existence of any detainer and of the prisoner's right to temporary custody of a member incarcerated in a State
request disposition. The prisoner's request is directed institution, pursuant to conviction by a State court, to
to the custodial official who must forward it to the resolve criminal charges against the member before a
appropriate prosecuting official and court, with a court-martial.
certificate of prisoner status as provided by Article III
of the Act. (1) Detainer. If a command requests
temporary custody under the Act, the commanding
c. Article 14, UCMJ. When a request for custody officer of the cognizant naval legal service office or the
does not invoke the Interstate Agreement on Detainers Marine Corps staff judge advocate, shall file a detainer
Act, delivery of custody shall be governed by Article with the warden, commissioner of corrections, or other
14, UCMJ, and sections 0603 through 0610, of this State official having custody of the member. The
Manual. The request shall be honored unless, in the detainer shall identify the member with particularity,
exercise of discretion, there is an overriding reason for enumerate the military charges pending, and request
retaining the accused in military custody, e.g., the command be notified in advance of any intention to
additional courts-martial are to be convened or the release the member from confinement.

6-9
 (2) Request for delivery. As soon as practical
after filing the detainer, the commanding officer of the 0615 REQUEST FOR INJUNCTIVE
cognizant naval legal service office or the Marine RELIEF (HABEAS CORPUS,
Corps staff judge advocate, shall prepare a written re- TEMPORARY RESTRAINING
quest for temporary custody of the member addressed ORDERS, ETC.) AND SERVICE OF
to the State official charged with administration of the PROCESS BY MAIL
State penal system. The request shall designate the
person(s) to whom the member is to be delivered and a. General. When a member or civilian employee
shall be transmitted via the military judge to whom the of the Navy or Marine Corps receives service of
member's case has been assigned. If the request is process for injunctive relief (such as for habeas corpus
properly prepared, the military judge shall approve, or a temporary restraining order), or receives service of
record, and transmit the request to the addressee process by mail in any case involving the named
official. The Act provides the State with a 30-day member's or employee's duties or official position and
period after receipt of the request before the request is such service contains an attached form for return of
to be honored. Within that period of time, the gover- acknowledgement of service, the nearest judge
nor of the State may disapprove the request, either advocate of the Navy or Marine Corps or attorney with
unilaterally or upon the prisoner's request. If the gov- the Office of General Counsel shall be immediately
ernor disapproves the request, the command should contacted. The legal representative shall immediately
coordinate any further action with the Judge Advocate contact the nearest United States Attorney for
General. assistance. A report of such service shall be made
promptly to the Judge Advocate General or to the
(3) Responsibilities. The cognizant command Associate General Counsel (Litigation), as appropriate
shall ensure that the responsibilities of a receiving (see Appendix A-5-a), by telephone, or by message if
jurisdiction, delineated in section 2, Article IV of the telephone is impractical and shall include: the name of
Act, are discharged. In particular, the Act requires that the petitioner(s) and defendant(s), a summary of the
the receiving jurisdiction: bases of the petition, and the date and time of any sche-
duled hearing. Action must be taken expeditiously in
(a) Commence the prisoner's trial within injunctive cases as the courts generally allow a very
120 days of the prisoner's arrival, unless the court, for short period of time for response.
good cause shown during an Article 39(a), UCMJ,
session, grants a continuance necessary or reasonable b. Reports required
to promote the ends of justice;
(b) Hold the prisoner in a suitable jail or (1) If habeas relief is requested, a copy of all
other facility regularly used for persons awaiting pleadings, orders, and process in the case, will be
prosecution, except for periods during which the forwarded to the Judge Advocate General or the
prisoner attends court or travels to or from any place at Associate General Counsel (Litigation), as appropriate
which his presence may be required; per Appendix A-5-a, along with a detailed explanation
of the circumstances under which the petitioner has
(c) Return the prisoner to the sending been detained. See RCS JAG 5821-6. See section
jurisdiction at the earliest practical time, but not before 0621(b).
the charges that underlie the request have been
resolved (prematurely returning the prisoner will result (2) When the hearing has been completed and
in dismissal of the charges); and the court has issued its order in the case, a copy of the
order shall be forwarded promptly to the Judge
(d) Pay all costs of transporting, caring Advocate General or to the Associate General Counsel
for, keeping, and returning the prisoner to the sending (Litigation), as appropriate per Appendix A-5-a. This
jurisdiction, unless the command and the State agree is particularly important if the order was adverse in
on some other allocation of the costs or order to facilitate compliance or to make a timely
responsibilities. determination whether to undertake further
proceedings.

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 PART B -- SERVICE OF PROCESS AND SUBPOENAS UPON PERSONNEL

0616 SERVICE OF PROCESS UPON report to the designated location. A civilian may be
PERSONNEL invited to the designated location. If the civilian does
not cooperate, the process server may be escorted to
a. General. Commanding officers afloat and the location of the civilian in order that process may be
ashore may permit service of civil process of Federal served. A civilian may be required to leave a classified
or State courts upon members, civilian employees, area in order that the process server may have access to
dependents, or contractors residing at or located on a the civilian. If unusual circumstances require that the
naval installation, if located within their commands. command not permit service, see section 0616e.
Service will not be made within the command without
the commanding officer's consent. The intent of this (2) Out-of-state process. In those cases where the
provision is to protect against interference with process is to be served by authority of a jurisdiction
mission accomplishment and to preserve good order other than that where the command is located, the
and discipline, while not unnecessarily impeding the person named is not required to accept process. The
court's work. Where practical, the commanding officer same is true regardless of whether the process server or
shall require that the process be served in his presence, law enforcement official is from within the state or
or in the presence of a designated officer. In all cases, out-of-state, since the jurisdiction of the issuing court
individuals will be advised to seek legal counsel, either determines whether the person is required to accept
from a legal assistance attorney or from personal process or not. Accordingly, the process server acting
counsel for service in personal matters, and from pursuant to out-of-state jurisdiction need not be
Government counsel for service in official matters. brought face-to-face with the person named in the
The commanding officer is not required to act as a process. Rather, the process server should report to the
process server. The action required depends in part on designated command location while the person named
the status of the individual requested and which State is contacted, apprised of the situation, and advised that
issued the process. he may accept service, but also may refuse. In the
event that the person named refuses service, the
(1) In-state process. When a process server or law process server should be so notified. If service of
enforcement officer (such as a deputy sheriff) with process is attempted from out-of-state by mail and
civil process originating from a State or Federal court refused, the refusal should be noted and the documents
from the jurisdiction where the naval station is located returned to the sender. Questions should be referred to
requests permission to serve process aboard an the staff judge advocate, command counsel, or the
installation, the command ordinarily should not local Trial Service Office.
prevent service of process so long as delivery is made
in accordance with reasonable command regulations b. Service of process arising from official duties
and is consistent with good order and discipline.
Withholding service may be justified only in the rare (1) Whenever a member or civilian employee
case when the individual sought is located in an area of the Department of the Navy is served with process
under exclusive Federal jurisdiction not subject to any because of his official position, the Judge Advocate
reservation by the State of the right to serve process. General or the Associate General Counsel (Litigation),
Questions on the extent of jurisdiction should be as appropriate (see Appendix A-5-a), shall be notified
referred to the staff judge advocate, command counsel, by telephone, or by message if telephone is
or local naval legal service office. If service is impractical. Notification shall be confirmed by a letter
permitted, an appropriate location should be designated report by the nearest appropriate command. The letter
(for example, the command legal office) where the report shall include the detailed facts which give rise to
process server and the member or employee can meet the action. RCS JAG 5821-7. For cases involving
privately in order that process may be served away injunctive relief, see section 0615. For lawsuits filed
from the workplace. A member may be directed to in the United States District Court, Washington, D.C.,

6-11
service of process may be made upon the Department country concerned. (For example, in the countries of
of the Navy's Office of General Counsel. the signatory parties, amenability to service of civil
(2) Any member or civilian employee served process is governed by paragraphs 5(g) and 9 of
with Federal or State court civil or criminal process or Article VIII of the NATO Status of Forces Agreement,
pleadings (including traffic tickets) arising from TIAS 2846.) When service of process on a person
actions performed in the course of official duties shall described above is attempted within the command in a
immediately deliver all such process and pleadings to country in which the United States has no agreement
the commanding officer. The commanding officer on this subject, advice should be sought from the Judge
shall ascertain the pertinent facts and notify the Judge Advocate General or the Associate General Counsel
Advocate General or Associate General Counsel (Litigation), as appropriate. See Appendix A-5-a.
(Litigation), as appropriate per Appendix A-5-a, by When service of process is upon the United States
telephone or by message if telephone is impractical, of Government or one of its agencies or instrumentalities
the service and immediately forward the pleadings and as the named defendant, the doctrine of sovereign
process to the relevant office. The member or civilian immunity may allow the service of process to be re-
employee will be advised of the right to remove civil turned to the court through diplomatic channels.
or criminal proceedings from State to Federal court Service of process directed to an official of the United
under 28 U.S.C. §§ 1442, 1442a, rights under the States, on the other hand, must always be processed in
Federal Employees Liability Reform and Tort accordance with the applicable international agreement
Compensation Act (28 U.S.C. § 2679b), if applicable, or treaty, regardless of whether the suit involves acts
and the right of a Federal employee to request repre- performed in the course of official duties. The Judge
sentation by Department of Justice attorneys in Federal Advocate General or the Associate General Counsel
(civil) or State (civil or criminal) proceedings and in (Litigation), as appropriate per Appendix A-5-a, will
congressional proceedings in which that person is sued arrange through the Department of Justice for defense
in an individual capacity, as delineated in 28 C.F.R. § of the suit against the United States or an official
50.15 (1989). Requests for representation shall be acting within the scope of official duties, or make other
addressed to the Judge Advocate General or Associate arrangements, and will issue instructions.
General Counsel (Litigation), as appropriate per Ap-
pendix A-5-a, and shall be endorsed by the co- (2) Usually, the persons described in
mmanding officer, who shall provide all necessary data subsection c(1) above are not required to accept
relating to the questions of whether the person was service of process outside the geographic limits of the
acting within the course of official duty or scope of jurisdiction of the court from which the process issued.
employment at the time of the incident out of which In such cases, acceptance of the service is not com-
the suit arose. pulsory, but service may be voluntarily accepted in
accordance with subsection b, above. In exceptional
(3) If the service of process involves a potential cases when the United States has agreed that service of
claim against the Government, see section 0807 and process will be accepted by such persons when located
JAGINST 5890.1. The right to remove to Federal outside the geographic limits of the jurisdiction of the
Court under 28 U.S.C. §§ 1442 and 1442a must be court from which the process issued, the provisions of
considered where the outcome of the State court action the agreement and of subsection a, above, will govern.
may influence a claim or potential claim against the
United States. Questions should be directed to the (3) Under the laws of some countries (such as
Judge Advocate General or Associate General Counsel Sweden), service of process is effected by the
(Litigation), in accordance with Appendix A-5-a. document, in original or certified copy, being handed
to the person for whom the service is intended.
c. Service of process of foreign courts Service is considered to have taken place even if the
person refuses to accept the legal documents.
(1) Usually, the amenability of members, Therefore, if a commanding officer or other officer in
civilian employees, and their dependents stationed in a the military service personally hands, or attempts to
foreign country, to the service of process from courts hand, that person the document, service is considered
of the host country will have been settled by an to have been effected, permitting the court to proceed
agreement between the United States and the foreign to judgment. Upon receipt of foreign process with a

6-12
request that it be served upon a person described in liberty, or orders to attend a judicial proceeding, a
subsection c(1) above, a commanding officer shall report of such refusal and the reasons therefor shall be
notify the person of the fact that a particular foreign made by telephone, or message if telephone is
court is attempting to serve process and also inform impractical, to the Judge Advocate General or the
that person that the process may be ignored or Associate General Counsel (Litigation), as appropriate
received. If the person to be served chooses to ignore per Appendix A-5-a. RCS JAG 5821-8.
the service, the commanding officer will return the
document to the embassy or consulate of the foreign 0617 MEMBERS OR CIVILIAN
country with the notation that the commanding officer EMPLOYEES SUBPOENAED AS
had the document, that the person chose to ignore it, WITNESSES IN STATE COURTS
and that no physical offer of service had been made.
The commanding officer will advise the Judge Where members or civilian employees are subpoenaed
Advocate General or the Associate General Counsel to appear as witnesses in State courts, and are served as
(Litigation), as appropriate per Appendix A-5-a, of all described in section 0616, subsection 0616d applies. If
requests for service of process from a foreign court and these persons are requested to appear as witnesses in
the details thereof. State courts when the interests of the Federal
Government are involved (e.g., Medical Care
d. Leave or liberty to be granted persons served Recovery Act cases), follow the procedures described
with process. When members or civilian employees in subsection 0618a. If State authorities are attempting
are either served with process, or voluntarily accept to obtain the presence of a member or a civilian
service of process, in cases where the United States is employee as a witness in a civil or criminal case, and
not a party to the litigation, the commanding officer such person is unavailable because of an overseas
normally will grant leave or liberty to the person assignment, the command should immediately contact
served to permit compliance with the process, unless to the Judge Advocate General, or the Associate General
do so would have an adverse impact on naval Counsel (Litigation), as appropriate per Appendix A-5-
operations. If the United States is a party, see section a.
0624. When a member or civilian employee is a
witness for a nongovernmental party because of 0618 MEMBERS OR CIVILIAN
performance of official duties, the commanding officer EMPLOYEES SUBPOENAED AS
may issue the person concerned permissive orders WITNESSES IN FEDERAL COURTS
authorizing attendance at the trial at no expense to the
Government. The provisions of SECNAVINST a. Witnesses on behalf of the Federal
5820.8 must also be considered in such cases. Mem- Government. When members or civilian employees of
bers or civilian employees may accept allowances and the DON are required to appear as witnesses in a
mileage tendered; however, any fees tendered for Federal court to testify on behalf of the Federal
testimony must be paid to the Department of the Navy Government in cases involving DON activities, the
unless the member or employee is on authorized leave Chief of Naval Personnel or the Commandant of the
while attending the judicial proceeding. When it Marine Corps, as appropriate, will issue temporary
would be in the best interests of the United States additional duty orders to that person. The charges for
Government (for example, in State criminal trials), such orders will be borne by the activity to which the
travel funds may be used to provide members and required witness is attached. Payment to witnesses
civilian employees as witnesses as provided in the will be as provided by the Joint Federal Travel
Joint Federal Travel Regulations. Responsibility for Regulations and the U.S. Navy travel instructions. If
the payment of the member's mileage and allowances the required witness is to appear in a case in which the
will be determined pursuant to the Joint Federal Travel activities of the DON are not involved, the DON may
Regulations, Volume 1, paragraph M6300, subsections be reimbursed under certain circumstances. See
1-3. Appendix D, Vol. 5, DOD Financial Management
Regulation: 28 CFR § 21 and 5 U.S.C. § 5751.
e. Report where service not allowed. Where
service of process is not permitted, or where the b. Witnesses on behalf of nongovernmental
member or civilian employee is not given leave, parties

6-13
 an estimate of the length of time the prisoner's services
(1) Criminal actions. When members or will be required, and should specify the mode of
civilian employees are served with a subpoena to transport by which it intends to return the prisoner.
appear as a witness for a defendant in a criminal action Upon receipt of such a request, authority by the Judge
and the fees and mileage required by Rule 17(d) of the Advocate General will be given, in a proper case, for
Federal Rules of Criminal Procedure are tendered, the the production of the requested naval prisoner in court
commanding officer may issue the person subpoenaed without resort to a writ of habeas corpus ad
permissive orders authorizing attendance at the trial at testificandum (a writ which requires the production of
no expense to the Government, unless the person's ab- a prisoner to testify before a court of competent
sence would have an adverse impact on naval jurisdiction).
operations. In such a case, a full report of the
circumstances will be made to the Judge Advocate b. Civil actions. The Department of the Navy
General or, in the case of civilian employees, to the will not authorize the attendance of a naval prisoner in
Associate General Counsel (Litigation). In those cases a Federal or State court, either as a party or as a
where fees and mileage are not tendered as required by witness, in private litigation pending before such a
Rule 17(d) of the Federal Rules of Criminal Procedure, court. The deposition of a naval prisoner may be taken
but the person subpoenaed still desires to attend, the in such a case, subject to reasonable conditions or
commanding officer also may issue permissive orders limitations imposed by the command concerned.
at no cost to the Government. Such persons, however,
should be advised that an agreement as to reimburse- 0620 INTERVIEWS AND DEPOSITIONS IN
ment for any expenses incident to travel, lodging, and CONNECTION WITH CIVIL
subsistence should be effected with the party desiring LITIGATION IN MATTERS
their attendance and that no reimbursement should be PERTAINING TO OFFICIAL DUTIES
expected from the Government. See subsection 0616d
for additional guidance concerning fees and mileage. Depositions and subpoenas requesting testimony
from active duty officers, enlisted Sailors and
(2) Civil actions. When members or civilian Marines, reserve personnel on active duty, current
employees are served with a subpoena to appear as a DON civilian and contract employees, military
witness on the behalf of a nongovernmental party in a retirees and former or retired civilian employees are
civil action brought in a Federal court, the provisions controlled by DODDIR 5405.2 and SECNAVINST
of section 0616 apply. 5820.8A. Those regulations are published at 32
C.F.R. §§ 97 and 725 (2002) and are issued
0619 NAVAL PRISONERS AS WITNESSES consistent with 5 U.S.C. § 301 and the Supreme
OR PARTIES IN CIVILIAN COURTS Court holding of United States ex rel. Touhy v.
Ragen, 340 U.S. 462 (1951). Touhy confirms the
a. Criminal actions. When Federal or State authority of the head of a Federal agency to control
authorities desire the attendance of a naval prisoner as the release of testimony or other official information.
a witness in a criminal case, they should submit a See SECNAVINST 5820.8A or 32 C.F.R. § 725 for
written request for such person's attendance to the specific guidance. For further information, contact
Judge Advocate General. The civilian authority should OJAG (Code 14).
include the following averments in its request: (1) that
the evidence to be derived from the prisoner's 0621 SUITS AGAINST THE UNITED STATES
testimony is unavailable from any other source; (2) that
the civilian authority will provide adequate security a. General. The Attorney General has primary
arrangements for the prisoner and assume responsi- responsibility for representing the United States in any
bility for the prisoner while he is in its custody; and (3) litigation in which the United States has an interest.
that the civilian authority will assume all costs of The Judge Advocate General and the General Counsel,
transporting the prisoner from the brig, of maintaining within the areas of their respective jurisdictions,
that prisoner while in civilian custody, and of returning maintain close liaison with the Department of Justice
the prisoner to the brig from which he was removed. to afford the Attorney General timely notice of legal
The civilian authority should also include in its request actions arising out of the operations of the Department

6-14
of the Navy. Reports to the Judge Advocate General
or the Associate General Counsel (Litigation), as (9) Status of the defendant as a Government
appropriate per Appendix A-5-a, are required of all officer, employee, agent, contractor, nonappropriated-
suits filed against the United States, or its prime fund activity employee, etc.
contractors or subcontractors on contracts under which
the Government may be obligated to make reim- (10) Amount claimed, or other relief sought.
bursement, or in cases where the United States is, in
legal effect, the defendant. (11) If a contractor is involved, the contract
number, and information as to whether the contractor
b. Reports to the Judge Advocate General. When desires or is willing to be defended by a United States
a command learns, by service of process or otherwise, Attorney.
of the commencement of any civil litigation or legal
proceedings, other than suits within the jurisdiction of (12) Whether the subject of the suit is
the General Counsel as set forth in subsection c, below, covered by insurance; if so, whether covered to the
which arise out of the operations of the Department of amount claimed, and whether the insurance carrier will
the Navy, or are otherwise of substantial interest to it, accept full responsibility for defense of the suit.
such command will report to the Judge Advocate
General, as appropriate (see Appendix A-5-a), by tele- (13) If the action is brought in a foreign
phone, or by message if telephone is impractical. This country, a recommendation as to qualified local
category of civil litigation and other legal proceedings attorneys, English-speaking if possible, available for
includes, but is not limited to, any legal proceeding retention to defend the interests of the United States.
involving the United States as a party and arising out Normally, the names of such attorneys should be
of operations of the Department of the Navy or Navy chosen from a list maintained by the United States
nonappropriated fund activities; proceedings against Embassy or Consulate.
any person subject to military law or any official or
employee of the Department of the Navy in connection (14) Other information necessary for a full
with public duties; and proceedings in which attach- understanding of the action and to enable the
ment of Government funds or other property is sought. Government to prepare a defense.
The report, which shall be confirmed by message,
shall contain the following information as may be c. Reports to the General Counsel. A report as
pertinent: required above shall be made to the Associate General
Counsel (Litigation) Department of the Navy,
(1) Names of parties to the proceeding. Washington, D.C. 20360-5110, rather than to the
Judge Advocate General, in all cases relating to:
(2) Nature of the action.
(1) Business and commercial law;
(3) Correct designation of the tribunal in
which the proceeding is brought. (2) Patent law;

(4) Docket number of the case, if available. (3) Civilian employee matters; and

(5) Names of person or persons on whom (4) Contract claims and litigation.
service was made, method of service, and dates.
(For a more detailed explanation of areas of
(6) Explanation of the Government's interest responsibility, see SECNAVINST 5430.25.)
in the proceeding.
d. Cases involving civilian employee matters.
(7) Date by which the defendant must plead The Associate General Counsel (Litigation) has
or otherwise respond. responsibility for litigation involving civilian
employees before a Federal court; the Judge Advocate
(8) Nature of the principal defense, if known. General and the Assistant General Counsel (Civilian

6-15
Personnel) have responsibility for representation
before most administrative tribunals (e.g., the United
States Merit Systems Protection Board or the Equal
Employment Opportunity Commission). The
Commandant of the Marine Corps (MPL) is
responsible for all matters before the Federal Labor
Relations Authority that affect Marine Corps
commands. Commands, activities, commanding
officers of naval legal service offices, and Marine
Corps staff judge advocates will cooperate with attor-
neys of the Office of the General Counsel and render
requested assistance in litigation involving civilian
employees.

e. Initial and supplemental reports. If all pertinent

information is not readily available, a prompt report
should be made with such information as is available,
supplemented by an additional report as soon as
possible.

0622 REPOSSESSION OF
PERSONAL PROPERTY

Repossession of personal property, located on a Navy

or Marine Corps installation, belonging to a member or
to any dependent residing at or located on a
Department of the Navy installation, may be permitted
in the discretion of the commanding officer of the
installation where the property is located, subject to the
following. The documents purporting to authorize
repossession and the procedures for repossessing the
property must comply with State law. Prior to
permitting physical repossession of any property, the
commanding officer shall cause an informal inquiry
into the circumstances and then determine whether to
allow the repossession. If repossession is to be
allowed, the person whose property is to be
repossessed should be asked if he wishes to relinquish
the property voluntarily. Repossession must be carried
out in a manner prescribed by the commanding officer.
In the case of property owned by civilian employees
of the Department of the Navy or civilian contractors
or their employees or dependents, the commanding
officer should direct that the disputed property be
removed from the installation until the commanding
officer is satisfied that the dispute is resolved.

6-16
 PART C -- LIAISON WITH THE DEPARTMENT OF JUSTICE

0623 LITIGATION REPORTS AND

PLEADINGS

In all lawsuits involving the Department of the Navy,

other than those under the cognizance of the General
Counsel, the pleadings or litigation report to the
Department of Justice will be prepared in the Office of
the Judge Advocate General unless authority to
prepare the report is specifically delegated by the
Judge Advocate General. RCS JAG 5821-11.

0624 LIAISON WITH THE U.S.

ATTORNEY AND OTHER
OFFICIALS OF THE DEPART
MENT OF JUSTICE (INCLUDING
OFFCIALS OF THE UNITED
STATES MARSHAL SERVICE)

In matters other than those under the cognizance of

the General Counsel, (see sections 0621(c), 0621(d),
and Appendix A-5-a), liaison with local United
States Attorneys and other officials of the
Department of Justice (including officials of the
United States Marshal Service), will be maintained
through the Judge Advocate General. This does not
apply: (1) to the initial report required by section
0615 in cases involving injunctive relief; (2) to cases
involving service by mail with attached form for
return of acknowledgment; and (3) where specific
authority to establish such liaison has been delegated
to a field activity. For cases within the authority of
the General Counsel, liaison shall be maintained by
the Associate General Counsel (Litigation), unless
delegated by him.

PART D -- MISDEMEANORS COMMITTED ON NAVY AND

MARINE CORPS INSTALLATIONS

0625 GENERAL
0626 PROSECUTION BEFORE FEDERAL
The Federal Magistrates Act, 18 U.S.C. §§ 3401-3402 MAGISTRATES
(1982), provides for trial by Federal magistrates of
individuals who commit misdemeanors within Federal a. Responsibility of the Department of Justice.
reservations. Policies and procedures for The Department of Justice is primarily responsible for
implementation of the Federal Magistrates Act and the the prosecution of offenses before Federal magistrates.
handling of misdemeanors committed on Navy and With the approval of the appropriate United States
Marine Corps installations are in SECNAVINST Attorney, qualified Navy and Marine Corps judge
5822.1. advocates may prosecute misdemeanors committed on

6-17
Navy and Marine Corps installations situated within representative is available to prosecute misdemeanors
the judicial district of a United States District Court. and so authorizes, the commanding officer of an
installation may designate one or more Navy or Marine
b. Designation of Navy and Marine Corps Corps judge advocates of the command, or make
officers to conduct prosecutions. If the United States necessary arrangements for the designation of one or
Attorney advises that no Department of Justice more Navy or Marine Corps judge advocates stationed
in the area, to conduct such prosecutions.

PART E -- APPEARANCES BY JUDGE ADVOCATES IN CIVIL COURT AND/OR

CIVIL ADMINISTRATIVE PROCEEDINGS

0627 ON BEHALF OF MEMBERS recommendations, shall be submitted to the Judge

Advocate General via the Commandant of the Marine
a. Navy or Marine Corps judge advocates may Corps, Headquarters, U.S. Marine Corps, Washington,
not appear as counsel on behalf of any member of the D.C. 20370-0001. Comments and recommendations
armed services before any civil court, civil concerning the request will include, but are not limited
administrative tribunal, civil regulatory body, or any to: the nature and status of any pending military
civil governmental agency, in any proceeding, justice, court-martial, administrative discharge, or
including a collateral attack on a court-martial, investigatory proceedings relevant to the request; a
administrative discharge, or investigatory proceeding, listing of all counsel participating in the case; the
unless specifically authorized by the Judge Advocate nature and status of any previous civil or military court
General or Commander, Naval Legal Service action in this or related cases; and comment on the
Command, as appropriate. The Expanded Legal availability of the requesting counsel in relation to the
Assistance Program, which involves in-court overall workload in his office.
appearances by Navy and Marine Corps judge
advocates, is specifically provided for in section 0711 c. If the request for appearance is approved by the
of this Manual. Judge Advocate General or Commander, Naval Legal
Service Command, as appropriate, any expenses
b. Requests by Navy or Marine Corps judge incurred as a result of representation will be at no cost
advocates to appear as counsel before any court, to the Government.
tribunal, body, or agency outlined above will be
delivered to the commanding officer of the judge d. Military prisoners sentenced to death by a
advocate, or staff judge advocate, as appropriate. The court-martial, who seek to file in Federal civilian
request must contain: the identity of the member to be court(s) post-conviction habeas corpus petition(s)
represented; reasons for requesting permission to respecting such court-martial following the approval of
appear; identity of the court, tribunal, etc., where their court-martial sentence to death by the President
appearance is desired; nature of action intended to be pursuant to Article 71, UCMJ, shall, upon request of
filed; relief to be requested; reasons why civilian the accused to the Judge Advocate General, be detailed
counsel may not be retained; estimated time required military counsel by the Judge Advocate General to
for representation (including preparation, travel, and represent them in such proceedings and any appeals
appearance); and any other action previously filed or therefrom. See Article 70(e), UCMJ. For the purposes
pending on the same subject matter. The commanding of these proceedings, the provisions of subsection c,
officer or staff judge advocate will forward the request above, do not apply.
to the Judge Advocate General, Department of the
Navy, 200 Stovall Street, Alexandria, VA 22332-2400,
with comments and recommendations concerning the
request. If the request is for a Marine Corps judge
advocate, the request, with comments and

6-18
 PART F -- STATE TAX AND REGULATORY AUTHORITY

0628 BACKGROUND property. For example: NAFI resale outlets selling

alcoholic beverages, whether on exclusive, concurrent,
Under the Constitution, Federal law generally controls or proprietary jurisdiction property, may not be
over State law, and the Federal Government generally required to obtain State liquor licenses; and vehicles
is immune from taxation or regulation by State owned by the Government or NAFI's need not have
authorities. Many exceptions exist, however, and com- State license plates in order to operate off-base.
manders of installations or units in the United States
often must deal with State authorities. This part c. Private individuals. The immunity applies
discusses relations with State revenue authorities, both only to the Government and its instrumentalities.
as to claims for State taxes and demands for Private individuals and organizations operating
compliance with State revenue-related regulations. It businesses on military property generally are subject to
also describes in general terms the liability of members State laws and regulation. Thus, dependents operating
and their dependents to taxation and regulation by businesses out of their quarters on concurrent jurisdic-
States and localities. tion land, even if authorized by the base commander,
are subject to State taxes, regulations, and licensing
0629 STATE REGULATION OF requirements. Likewise, thrift shops operated by
FEDERAL FUNCTIONS, INCLUDING wives' clubs or charitable organizations are subject to
SALES State taxation, and may be subject to business license
requirements. Private activities of organizations of -
a. Application of State law. Except where members, civilian employees, or dependents, even if
Congress has specifically authorized application of command sponsored, will be subject to State taxes and
State law, the Federal Government is immune from may be subject to regulation unless the activity is a
any regulation by State or local authorities. Congress properly organized and authorized NAFI. In the same
has authorized some State regulation of certain Federal manner, activities of Federal contractors may be
activities in the environmental area. See Chapter XIII subject to State law, taxes, and regulation, unless the
of this manual. application of State law would interfere with a Federal
function.
b. Federal immunity. In most other areas,
however, the Federal Government need not comply d. Demands for compliance. Commanders
with State regulations, nor obtain State licenses for its confronted with demands for compliance with State
activities. This immunity extends to activities of the regulation or payment of State taxes, other than
Department of the Navy, and to Federal instru- environmental regulations, taxes, or fees, should
mentalities, including authorized nonappropriated fund immediately contact a local staff judge advocate or
instrumentalities (NAFI's). The American Red Cross General Counsel attorney and notify the Judge
also has been ruled to be a Federal instrumentality. Advocate General. For procedures to deal with State
Thus, commissaries, exchanges, bowling alleys, and demands for compliance with environmental
other NAFI-operated facilities need not, as a matter of regulations or payment of environmental fees or taxes,
law, comply with State law or obtain State business see Chapter XIII.
licenses to operate. In some areas, such as the age for
sale of alcoholic beverages and operation of bingo 0630 STATE AND LOCAL TAXATION
games, the Secretary of the Navy has directed OF ON-BASE SALES
compliance with State restrictions. This reflects a
Department of the Navy policy of voluntary The Buck Act authorizes application of State sales
compliance, and does not subject Federal instrumental- taxes on military installations, even those under
ities to direct State regulation. The immunity accorded exclusive Federal jurisdiction. 4 U.S.C. § 105. Sales
Federal instrumentalities applies wherever they may be by the United States and its instrumentalities are
located, and is not limited to exclusive jurisdiction exempt. 4 U.S.C. § 107. Thus, commissaries,

6-19
exchanges, and other NAFI resale outlets need not 0632 LIABILITY OF MILITARY
collect State or local sales tax on sales to authorized PERSONNEL AND DEPENDENTS FOR
patrons. Any activity which is not an authorized NAFI STATE AND LOCAL TAXES
resale outlet, however, must collect sales taxes as
required by State and local law. This may include a. In general. There is no general exemption for
thrift shops operated by private organizations, flea military personnel or dependents from State and local
markets, or large "coffee messes" or "sandwich taxation. Military personnel are provided some relief
messes" that do not qualify as NAFI resale outlets. by the Soldiers' and Sailors' Civil Relief Act of 1940,
The requirements of State and local laws vary and which limits the right of States to tax military income
should be consulted in each case. and motor vehicles owned by military personnel.
Generally, the tax provisions of the Soldiers' and
0631 STATE AND LOCAL TAXES, Sailors' Civil Relief Act do not apply to dependents,
INCLUDING HOTEL TAXES AND THE who are fully subject to State and local taxation
FEDERAL TRAVELLER wherever they reside.

The Federal Government's exemption from State and b. Income taxes

local taxation applies only to taxes whose "legal
incidence" is on the Government or its (1) States and localities may tax income of
instrumentalities. This usually means that the three classes of people: (1) domiciliaries, who are
Government is exempt only where the Government legal residents of the State and taxable on their
itself actually pays the tax. Where an individual incurs worldwide income; (2) statutory residents, who,
a tax liability for a transaction, and is then reimbursed regardless of their domicile, have actually lived in the
by the Federal government, there normally is no State for a prescribed period and are taxable on their
immunity, because the legal incidence of the tax was worldwide income; and (3) nonresidents, who are
on the individual. Hotel taxes can be structured in taxable only on income from sources in the State.
various ways, but the legal incidence of the tax is
virtually always on either the innkeeper or the person (2) The Soldiers' and Sailors' Civil Relief
occupying the room. As a result, the fact that the Act states that a military member does not acquire
Government will ultimately pay the bill through residence or domicile in a State merely because he is
reimbursement confers no immunity from hotel taxes present there due to military orders, nor lose domicile
on the Federal traveller. In those rare cases where the in a State merely because of absence due to military
Government will directly pay for accommodations, orders. 50 U.S.C. App. § 574. Thus, a member cannot
local law should be checked for a possible exemption. be a "statutory resident" of a State when present due to
A few jurisdictions provide an exemption from hotel military orders. Members are either domiciliaries of a
taxes to Federal travellers. This is, however, a matter State and fully taxable there, or nonresidents taxable
of State legislative grace rather than Federal law. For only on income from sources in the State. For this
the member or civilian employee travelling on a purpose, military pay is sourced in the member's State
reimbursable basis, "certificates of exemption" should of domicile. A member domiciled in one State and
not be issued or used unless there is a known specific stationed in a second State is taxable by the second
tax exemption for Federal travellers in the local law of State only on income other than military pay which is
the place visited. In the same manner, a Federal earned in that State. Examples include income from
traveler normally is not exempt from State sales, meal, outside jobs and interest earned on local bank
or car rental taxes merely because his expenses are accounts. The member's home State, however, could
reimbursed by the Federal Government. tax both military pay and the income earned in the
second State. Some States allow credits for tax paid in
another State to prevent double taxation.

(3) Some States do not tax their

domiciliaries when they are living outside the State.
Members domiciled in such States may avoid all State c. Personal property taxes and vehicle
income taxes on their military pay. These States often registration
have technical requirements for nonresidence which
members must be careful to observe in order to (1) Non-business personal property of
maintain exemption. Restrictions may include a members generally is taxable only in the State of
minimum period of absence from the State to begin domicile. 50 U.S.C. App. §574.
nonresidence, a maximum visiting period allowed in
the State, or a requirement that the member maintain a (2) If a non-business vehicle owned by a
permanent home outside the State or not maintain a member is properly registered in the State of domicile,
permanent home inside the State. Barracks, Bachelor no other State may require its registration there. If not
Quarters, and shipboard quarters are sometimes not properly registered in the State of domicile, the vehicle
considered a permanent home for these purposes. must be registered where the member actually resides.
That State may assess only such fees as are necessary
(4) A member's domicile normally starts out for issuance and administration of the registration.
as the State where he lived before entering the service. Fees or excises in lieu of property taxes are not
Members may, however, change their domiciles allowed. This does not, however apply to sales taxes,
voluntarily. The Soldiers' and Sailors' Civil Relief Act which have been held to be outside the scope of the
merely prevents involuntary changes. The legal Soldiers' and Sailors' Civil Relief Act.
concept of domicile has two elements: (1) presence in
a State; and (2) intent to permanently treat that State as (3) Registration in any State other than the
"home" by remaining there or consistently returning State of domicile or the State of current residence
there after absences. For a member validly to change generally is invalid. Thus, if a member does not
domicile, he must meet both tests. Thus, it is not maintain registration in his State of domicile, he must
possible to validly declare domicile in a State where re-register the vehicle after each interstate PCS move.
the member has never lived. Also, to ensure respect
for a choice of domicile, members should retain all (4) Vehicles owned by dependents are
possible contacts, such as real property ownership, subject to tax and registration wherever the vehicle is
voter registration, driver's licenses and vehicle registra- located. Vehicles jointly owned with dependents may
tions, and professional licenses, with the chosen State be taxed by both the member's State of domicile and
to show intent to return there. Each State may test the State where the vehicle is located. In most cases,
domicile separately. If contacts are inconsistent, it is however, the member's State of domicile will not tax
possible for a member to be held a domiciliary of more the vehicle because most ad valorem property taxes
than one State and subjected to multiple taxation. depend on the presence of the property in the
Members with domicile problems should be referred to jurisdiction. Some States exempt members' jointly
a legal assistance attorney. owned vehicles from taxation.

(5) Dependents, unlike members, are subject d. Assistance. Assistance for individual members
to State tax residency laws. They often will be with State and local tax problems is available from
statutory residents of whatever State they happen to Legal assistance attorneys. Problems of general
live in, and will be fully subject to that State's income application noted by commanders may be forwarded to
tax laws. If they retain legal domicile in some other Judge Advocate General for examination by the
State, they may be fully taxable by that State as well. Armed Forces Tax Council per SECNAVINST
Further, some States use the income of the military 5840.8.
member to set the rate at which the dependent's income
will be taxed. These schemes have been ruled to be in
compliance with the Soldiers' and Sailors' Civil Relief
Act.

6-21
 WAIVER OF EXTRADITION

"I, ___________________, United States Navy (United States Marine Corps), having been advised of my

rights to formal extradition as provided for in sections 0604 JAG Manual by

___________________________ of _______________________, waive such rights and agree to

(name of military or civilian attorney) (address of attorney)
accompany _______________________, a representative of the State of _________, into the territorial
limits of said State. I have been advised that the crime which I am charged to have committed in the State of
_________ is as follows:

________________________________
(Signature)

WITNESSED:

___________________________
(Signature of witness)

A-6-a
 DELIVERY AGREEMENT

In consideration of the delivery of ___________________________ [name of person delivered], United

States Navy (United States Marine Corps), to ________________________________, at

_________________________, for trial upon the charge of ___________________________, I hereby

agree pursuant to the authority vested in me as _______________________ that

_________________________ [name of person delivered], United States Navy (United States Marine

Corps) will be transported to the State of _______________ without expense to him or the United States

and that the Commanding Officer of the ______________________ will be notified immediately of the

outcome of the trial and that the said __________________________ [name of person delivered], will be

returned to the _____________________, or to such place as the Secretary of the Navy shall designate, or

transportation issued thereto, without expense to the United States or to the person delivered immediately

upon dismissal of the charges or completion of the trial in the event he is acquitted, or immediately upon

satisfying the sentence of the court in the event he is convicted and a sentence imposed, or upon

disposition of the case, provided that the Department of the Navy shall then desire his return."

A-6-b

From: Commanding Officer

To: Judge Advocate General (Code 14)

Subj: DELIVERY REFUSED TO ______________________ AUTHORITIES; CASE OF

[RANK, FULL NAME, SOCIAL SECURITY NUMBER, U.S. NAVY/MARINE CORPS (OR
RESERVE)]

Ref: (a) (Previous telephone call or message notification to JAG Code 14)
(b) JAGMAN § 0610

Encl: (1) Copy of warrant of arrest of _______________

1. As reported by reference (a), and in accordance with reference (b), report is made that upon
presentation of a valid warrant of arrest charging violation of (crime charged), (name of accused) was
refused delivery to (sheriff, etc., of county, State, etc.) on (date) because (explain extraordinary
circumstances).

2. Enclosure (1) is forwarded for information.

__________________
By direction

Copy to:
COMNAVMILPERSCOM/CMC (Code JAM1)
ISIC

A-6-c
 CHAPTER VII
LEGAL ASSISTANCE

0701 SCOPE e. Telephone inquiries

f. Advice to third parties
0702 SUPERVISION OF LEGAL
ASSISTANCE 0710 REFERRALS AND FEES

0703 LEGAL ASSISTANCE a. Referral to a civilian attorney or law firm

PROVIDERS b. Prohibition of fees

0704 LEGAL ASSISTANCE 0711 EXPANDED LEGAL ASSISTANCE

ATTORNEYS PROGRAM

0705 NONLAWYER PERSONNEL a. General

b. Eligibility
0706 PERSONS ELIGIBLE FOR LEGAL
ASSISTANCE 0712 IMMIGRATION AND
NATURALIZATION
a. Members of the armed forces on active
duty for 30 days or more a. General
b. Other persons eligible b. Passports and Visas
c. Acquiring citizenship
0707 PERSONAL AND PRIVILEGED d. Conclusion
CHARACTER OF SERVICE

a. In general
b. Information requests by commanding
officer

0708 LEGAL ASSISTANCE SERVICES

a. Standard services
b. Other services

0709 LIMITATIONS ON SCOPE OF

LEGAL ASSISTANCE SERVICES

a. Personal legal matters only

b. Advice or assistance in official military
matters
c. Representation of opposing parties or
interests
d. Proceedings involving the United States

7-1
 CHAPTER VII
LEGAL ASSISTANCE

0701 SCOPE assistance practice within their respective chains of

command, and have broad authority to ensure that
a. This chapter provides information concerning the services are provided commensurate with resources
Department of the Navy legal assistance program. available.
Additional regulations are contained in JAGINST
5801.2 (the Legal Assistance Manual) and other 0703 LEGAL ASSISTANCE PROVIDERS
related directives.
Legal assistance is provided at all Naval Legal Service
b. The Department of the Navy legal assistance Offices, Detachments, and Branch Offices. Legal
program provides free attorney assistance to members, assistance services may also be available at other legal
their dependents, and other eligible clients regarding offices and from Naval and Marine Corps Reserve
personal legal matters. The term "dependents" is used personnel and units. Marine Corps legal assistance
interchangeably with the term "family members" in offices are designated by the Commandant of the
this manual. "Family members" or "dependents" are Marine Corps (Code JA) at certain Marine Corps
those persons identified in the sponsor's service record installations.
and/or who possess a valid United States Uniformed
Services Identification and Privilege Card. 0704 LEGAL ASSISTANCE ATTORNEYS

c. The legal assistance program promotes increased A legal assistance attorney is a judge advocate or
readiness of active duty and reserve members of the civilian attorney authorized by the Judge Advocate
Naval service, and enhances the morale and quality of General, or by his designated representatives
life for military personnel, family members, and other (including, for Marine Corps personnel, the
eligible clients, through provision of in-office attorney Commandant of the Marine Corps (Code JA)), to
advice, aid, and referral services, and vigorous perform legal assistance functions. He or she
preventive law activities. represents the interests of the individual client
concerning personal legal matters.
d. Legal assistance is not separately funded; the
program is authorized, not mandated, by Congress. 10 0705 NONLAWYER PERSONNEL
U.S.C. § 1044 (1994). Accordingly, all legal
assistance services are provided subject to availability Nonlawyer legal officers, legalmen, independent duty
of staff legal resources. legalmen, and legal clerks may assist attorneys, but
they may not provide legal advice or provide services
0702 SUPERVISION OF LEGAL ASSISTANCE that call for the professional judgment of an attorney.
Nonlawyer personnel may provide assistance not
a. The Department of the Navy legal assistance requiring the attention of an attorney, such as
program is implemented and supervised by the Judge notarizations and the preparation of routine powers of
Advocate General. It is administered in the Navy by attorney using attorney-approved forms.
the Chief of Naval Operations (NO9J) and in the
Marine Corps by the Commandant of the Marine 0706 PERSONS ELIGIBLE FOR LEGAL
Corps (Code JA). ASSISTANCE

b. Commanding officers of Naval Legal Service a. Members of the armed forces on active duty for 30
Offices, senior staff judge advocates to officers days or more. Legal assistance is intended primarily
exercising general court-martial convening authority for active duty personnel, including reservists (and
and Marine Corps judge advocates at Marine Corps members of the National Guard) on active duty for 30
installations (designated by the Commandant of the days or more. For reservists on active duty for less
Marine Corps (Code JA)) shall oversee the legal than 30 days, see sections 706 (b)(4) and 706 (b)(5).

7-2
 b. Other persons eligible. As resources permit, legal (9) Family members accompanying authorized
assistance may also be provided to the following civilians listed in subsection (8) above.
categories of people in the order listed:
(10) Members of allied forces and their family
(1) Family members of active duty personnel and members in the United States, serving with the Armed
of personnel who died while on active duty. Forces of the United States.

(2) Retired military personnel. (11) Other persons authorized by the Judge
Advocate General.
(3) Family members of retired members and family
members of deceased retired members.
0707 PERSONAL AND PRIVILEGED
(4) Reservists on active duty for single periods of CHARACTER OF SERVICE
29 days or less and their family members may be
provided legal assistance in emergency cases. a. In general. Information and files pertaining to
legal assistance clients are private and privileged under
(5) For the purpose of enhancing the readiness of law and applicable professional rules and guidelines.
Reserve personnel for mobilization, premobilization Such information and files shall not be disclosed to
legal counseling and assistance may be provided to anyone by the attorney providing legal assistance,
active duty or inactive Reserve personnel consistent except upon the specific permission of the client or
with mobilization readiness needs. Premobilization when the attorney determines that disclosure is
assistance normally will consist of drafting or updating authorized or required by law or applicable rules of
wills, advance medical directives, and powers of professional conduct. Disclosure of such information
attorney. Other assistance may be provided if it relates cannot be authorized or made lawful by order of
to recall or mobilization. Examples of such assistance superior military authority.
include advice concerning rights under the
Servicemembers’ Civil Relief Act (SCRA) or the b. Information requests by commanding officer. If
Uniformed Services Employment and Reemployment requested by a member's commanding officer or
Rights Act (USERRA). Premobilization legal officer in charge, information on whether a member of
assistance services are not authorized for family a command reported to a legal assistance office will
members. generally be provided. The nature of the legal
assistance or the substance of conversations or advice,
(6) Members of Reserve components following will not be provided without the client's consent.
release from active duty under a call or order to active
duty for more than 30 days issued under a mobilization 0708 LEGAL ASSISTANCE SERVICES
authority (as determined by the Secretary of Defense),
for a period of time that begins on the date of the a. Standard services. Advice or service regarding the
release and is not less than twice the length of the following matters are normally available to eligible
period served on active duty under that call or order to persons but may be limited due to availability of
active duty. qualified attorney or other resources:

(7) Family members of members of the Reserve (1) Wills, trusts, and estate planning.
components listed in subsection (6) above.
(2) Domestic relations, including divorce, legal
(8) Civilian personnel who are United States separation, annulment, custody, and paternity.
citizens, other than local hire employees, employed by,
serving with, or accompanying the Armed Forces of (3) Adoption and name changes.
the United States, when they are assigned to a foreign
country or to a vessel or unit of the Armed Forces of (4) Nonsupport and indebtedness, including
the United States deployed in excess of 30 days. communication, correspondence, negotiations with

7-3
another party or lawyer, and assistance related to the Code of Military Justice, or processing for
administration of the Department of Defense program administrative discharges, will be referred to a defense
for the issuance of involuntary allotments for judgment counsel.
indebtedness.
c. Representation of opposing parties or interests. If
(5) Taxes, including basic advice and assistance on two or more eligible persons with conflicting interests
Federal, State, and local taxes. seek advice from the same legal assistance office on
the same matter, the party first establishing an
(6) Landlord-tenant relations, including review of attorney-client relationship will be provided
personal leases and communication and representation. Every effort will be made to refer the
correspondence. party with a conflicting interest to another source of
free legal assistance or, if no such source is available,
(7) Civil suits, including preparation of to a civilian attorney.
correspondence, documents and pleadings, except that
advice and document preparation will not be provided d. Proceedings involving the United States. Legal
in cases where civilian counsel has been retained. assistance attorneys shall not represent or assist an
However, in-court representation is precluded, except individual in a matter in which the United States has a
through the expanded legal assistance program. See direct and substantial interest, whether or not the
section 0711. Government's position is adverse to that of the
individual, except as permitted by JAGINST 5801.2 or
(8) SCRA advice and assistance. other prior and specific authorization of the Judge
Advocate General or his designee (Deputy Assistant
(9) Civilian criminal matters, limited to general Judge Advocate General for Legal Assistance or the
advice regarding minor (misdemeanor) criminal Commandant of the Marine Corps (Code JA)).
matters and traffic offenses within the jurisdiction of
the civilian courts. Serious criminal matters will be e. Telephone inquiries. Legal assistance ordinarily
referred to private civilian attorneys. will not be provided over the telephone except in
unusual or compelling circumstances.
b. Other services may include advice and assistance
on powers of attorney, real estate, bankruptcy, f. Advice to third parties. The privileged
contracts, consumer affairs, insurance, and attorney-client relationship requires personal and
immigration and naturalization. Advice and assistance private communication. Except when the client is
regarding military matters may be limited as provided unable to communicate adequately, advice or
in section 0709 and JAGINST 5801.2. assistance will not be provided through third parties.
For example, each will client must be interviewed
0709 LIMITATIONS ON SCOPE OF LEGAL personally by a legal assistance attorney prior to
ASSISTANCE SERVICES execution of the will. When command representatives
seek information or assistance on behalf of service
a. Personal legal matters only. Legal assistance is members, they shall normally be instructed to have the
authorized for personal legal affairs only. Legal advice service member obtain a legal assistance appointment.
and assistance will not be provided regarding business Bona fide requests for command services shall be
ventures or regarding matters that are not of a personal referred to the judge advocate normally charged with
nature. providing advice and assistance to the command
concerned.
b. Advice or assistance in official military matters.
Legal assistance duties are separate and apart from 0710 REFERRALS AND FEES
responsibilities of trial counsel, defense counsel, or
others involved in processing courts-martial, a. Referral to a civilian attorney or law firm. The
nonjudicial punishments, administrative boards or legal assistance attorney may determine that the best
proceedings, and investigations. Members accused or interests of the client will be served by referring the
suspected of offenses or conduct that may result in case to a civilian attorney or law firm. Should referral
disciplinary or judicial proceedings under the Uniform be necessary, payment of legal fees is the client's

7-4
responsibility. The Government will not reimburse the approved by the Judge Advocate General or his
individual or pay any expenses associated with the designee (Deputy Assistant Judge Advocate General
referral. for Legal Assistance or the Commandant of the Marine
Corps (Code JA)).
b. Prohibition of fees. Services provided in the
Department of the Navy legal assistance program are 0712 IMMIGRATION AND
at no cost to eligible personnel. All legal assistance NATURALIZATION
personnel are prohibited from accepting or receiving,
from eligible clients, any fee or compensation other a. General. Laws governing immigration are set by
than Government compensation. Reserve personnel Congress and are found in the Immigration and
not on active duty are prohibited from receiving fees or Nationality Act and implementing regulations. The
compensation for the same matters about which they United States Citizenship and Immigration Service
consulted with or advised their legal assistance clients, (USCIS), an agency of the Department of Homeland
regardless of the reservist's duty status when the legal Security, administers and enforces U.S. immigration
assistance was provided. laws.

0711 EXPANDED LEGAL ASSISTANCE b. Passports and visas. A passport is a document

PROGRAM issued by a person’s own country to provide
identification necessary to leave and return to that
a. General. Under the Expanded Legal Assistance country. By itself, a passport does not give the holder
Program (ELAP) as approved by the Judge Advocate permission to enter another country. State Department
General or his designee (Deputy Assistant Judge Consular offices overseas issue visas to aliens wishing
Advocate General for Legal Assistance or the to enter the United States. A visa permits travel to U.S.
Commandant of the Marine Corps (Code JA)), entry points. U.S. immigration officials at the border
designated legal assistance attorneys may provide determine whether holders of visas are properly
in-court representation to certain categories of clients documented and otherwise eligible to enter the U.S.
who cannot afford private attorney fees. Additional and for what period of time. Aliens who are U.S.
information on ELAP is contained in JAGINST servicemembers do not need visas to enter the United
5801.2. States. They need only show their military
identification and papers.
b. Eligibility. Persons eligible:
c. Acquiring citizenship. The Department of the
(1) Active duty military personnel in pay grades Navy has no authority to grant alien members either
E-3 and below. citizenship or lawful permanent resident (LPR) status.
An alien who has served in the U.S. Armed Forces
(2) Active duty military personnel in pay grade E-4 does not automatically become a citizen. However, the
with family members. United States Navy and Marine Corps have
implemented programs designed to assist
(3) Family members of personnel in pay grades E-4 servicemembers in obtaining citizenship through
and below. qualifying military service. Navy and Marine Corps
legal assistance offices provide complete application
(4) Other active duty military personnel and their preparation advice and support for those qualified
family members who are unable to afford an attorney members of the Armed Forces that desire to apply for
without substantial financial hardship may be eligible citizenship. This program can also track the status of
if approved by the Judge Advocate General or his the application until completion.
designee (Deputy Assistant Judge Advocate General
for Legal Assistance or the Commandant of the Marine (1) Citizenship through military service.
Corps (Code JA)). Except in limited circumstances, a servicemember
must be an LPR before enlisting. Once the
(5) Service members with cases that involve a servicemember has served honorably for the requisite
significant issue that affects other service members, if period of time as established in 8 U.S.C. § 1439(a), he

7-5
may apply immediately for naturalization. To qualify, residency (for example, by marriage to a U.S. citizen)
the member must file the petition for naturalization must adjust their status from nonimmigrant to
while on active duty or within six months after immigrant.
discharge. See U.S. Navy Guide To Naturalization
Applications Based upon Qualifying Military Service, (b) Step two: naturalization
MILPERSMAN 5352-010, SECNAVINST 5510.30A,
or MCO P5800.16A for more information on (i) General rule. After acquiring
naturalization of military service personnel. LPR status, an applicant must reside in the United
States continuously for 5 years before filing a petition
(2) Citizenship through military hostilities. for naturalization. Residency for the last 6 months
Congress has established special procedures for aliens must be in the State where the petition is to be filed.
who serve in the U.S. Armed Forces during Periods of Although the applicant may make short visits outside
Military Hostilities. Periods of Hostility include: the United States, long or repeated absences may
cancel previous periods of residency.
6 April 1917 to 11 November 1918
1 September 1939 to 31 December 1946 (ii) Spouses of U.S. citizens. As
25 June 1950 to 1 July 1955 noted above, the spouse of a U.S. citizen is eligible for
28 February 1961 to 15 October 1978 immediate LPR status. The spouse is then eligible for
2 August 1990 to 11 April 1991 naturalization after 3 years of marriage. Physical
3 July 2002 to a date TBD by a future Executive Order presence and residency requirements must be met.

Under 8 U.S.C. §1440, an alien with honorable active (iii) LPR spouses of military
service during any part of the above wartime periods personnel ordered overseas. The law permits
has the opportunity to become a citizen. LPR status is naturalization, without regard to length of residence, of
not required. If the applicant is not an LPR, the an LPR spouse who is about to accompany a U.S.
applicant need only have enlisted or re-enlisted in the citizen spouse overseas pursuant to official orders. See
United States or its territories or possessions or on MILPERSMAN 5352-020, DODDIR5500.14 of 30
board a vessel owned or operated by the United States Oct 70, or MCO 5802.2B.
for noncommercial service.
(4) Citizenship through birth. A person born
(3) Citizenship through immigration. in the United States is entitled to U.S. citizenship, even
Applying for U.S. citizenship is normally a two-step if the parents are not. A person born outside the
process. United States and its possessions may be entitled to
U.S. citizenship, depending on the citizenship of their
(a) Step one: acquiring lawful permanent parents and other factors. If both parents are U.S.
resident status citizens, the child is a citizen if either parent has
resided in the United States or its possessions anytime
(i) Obtaining a visa. To become an before the child’s birth. If only one parent is a citizen,
LPR, an alien must first obtain an immigrant visa. This the child is a citizen so long as the child is under age
permits the alien to enter the United States and to 18 and the child is a permanent resident of the U.S.,
remain for a specified period of time. living in the legal and physical custody of the U.S.
citizen parent.
(ii) The spouse, child under age 21,
or parent of an adult U.S. citizen is immediately (5) Marriage. Marriage overseas is governed
eligible for an immigrant visa and LPR status. Visas by Service regulations. Any member planning to
for other immigrants are subject to quota limitations. marry a foreign national must submit an application for
These quotas are distributed in categories known as permission to marry to the area commander or
preferences. For some countries, the waiting list for a designated representative. See MILPERSMAN 5352-
quota may be extremely long. 030, SECNAVINST 5510.30A, and MCO 1752.lC.

(iii) Adjustment of status. Aliens in (a) Intended spouses receive medical

the United States who become eligible for permanent screening and background investigations to ensure

7-6
eligibility for immigrant visas. The visa may be denied
for such reasons as drug trafficking, criminal
convictions, contagious diseases, or prostitution.

(b) After obtaining command approval

and getting married, the member may petition for an
immigrant visa for the spouse at the U.S. Consulate in
the country where the spouse resides. Petitions cannot
be filed in the United States.

(1) If the member is a U.S. citizen,

the spouse’s visa can be issued without regard to quota
limitations.

(2) If the member is an LPR, a

second preference visa may be issued to the spouse
upon receiving a numerical quota.

(3) When the visa petition is

approved, the alien spouse may travel to the United
States.

(4) An alien spouse entering the

United States by reason of marriage to a U.S. citizen or
LPR is characterized as a “conditional” permanent
resident for a two-year period. Conditional status may
be revoked by BCIS upon a finding that the marriage is
a fraud. After two years the couple must jointly file a
petition requesting removal of the conditional status
and may have to appear at BCIS for a personal
interview.

d. Conclusion. Immigration and Naturalization law is

ever changing. For further information and advice,
contact:

(1) In the United States, the nearest Bureau of

Citizenship and Immigration Services Office;

(2) Overseas, the nearest U.S. Consulate;

(3) Worldwide, the nearest Legal Assistance Officer.

For headquarters assistance contact the Office of the
Judge Advocate General (Code 16); Legal Assistance
Branch, Marine Corps Judge Advocate Division; or the
Navy Personnel Command (PERS-662).

7-7
 CHAPTER VIII
GENERAL CLAIMS PROVISIONS

PART A--GENERAL 0809 FILING THE CLAIM

0801 SCOPE a. General

b. Presentation of the claim
0802 RESPONSIBILITIES c. Appropriate authorities
d. Form of the claim
a. Judge Advocate General e. Amending the claim
b. Deputy Assistant Judge f. Statute of limitations
Advocate General (Claims,
Investigations and Tort Litigation) 0810 CLAIMS PAYABLE
c. Commanding officers in
receipt of claims a. General
b. Covered claimants
0803 INVESTIGATIONS c. Covered incidents
GENERALLY d. Scope of employment

0804 CLAIMS--GENERALLY 0811 CLAIMS NOT PAYABLE

a. Claims against the United a. Insurers

States b. Sponsored dependents
b. Claims in favor of the c. Foreign military personnel
United States d. Civilian employees
e. National governments
0805 CLAIMS--ACTION BY f. National corporation of a country
RECEIVING COMMAND engaged in combat
g. Combat activities
a. Record date of receipt h. Claims previously paid
b. Determine the military or denied
activity involved i. Contractual
c. Initiate an investigation j. Private contracts and domestic
obligations
0806 CLAIMS -- ACTION WHEN k. Compassionate grounds
SUIT FILED l. Paternity or illegitimacy
m. Other Federal statutes
PART B--FOREIGN CLAIMS n. Damage caused by naval vessels

0807 DEFINITION 0812 COMPUTATION OF THE

AMOUNT OF PAYMENT
0808 STATUTORY AUTHORITY
a. General
a. General b. Compensation
b. Purpose c. Apportionment
c. Construction d. Joint liability
e. Insurance
f. Negligence of the claimant
g. Currency
8-1
0813 FOREIGN CLAIMS 0817 ACTION ON
COMMISSIONS FORWARDED CLAIMS

a. Purpose a. Claims within adjudicating

b. Authority to appoint authority
c. Claims presented b. Claims in excess of
d. Composition of the adjudicating authority
Commission
e. Qualifications of 0818 NOTIFICATION TO THE
members CLAIMANT
f. Adjudicating authority
0819 RECONSIDERATION,
0814 PROCESSING OF CASES APPEAL, AND SUIT

a. Action by the staff judge a. Reconsideration

advocate b. Appeal
b. Action by the appointing c. Suit
authority
c. Action by the claims 0820 PAYMENT
investigating officer
d. Action by the Commission a. Documentation
b. Voucher
0815 REPORTS REQUIRED c. Accounting data
d. Release
a. Appointing order and e. Advance payments
modifications f. Currency
b. Claim document
c. Investigative report
d. Summaries of witnesses
testimony
e. Settlement agreement
f. Notification to claimant
g. Memorandum

0816 FORWARDING REPORTS

a. Claims within adjudicating

authority
b. Claims in excess of
adjudicating authority

8-2
 CHAPTER VIII

GENERAL CLAIMS PROVISIONS

PART A -- GENERAL

0801 SCOPE
d. Admiralty claims are discussed in Chapter
This chapter provides information about responsibilities XII. The Deputy Assistant Judge Advocate General
for the supervision and management of the Navy's claims (Admiralty and Maritime Law) is responsible for
program and the investigation of claims under the various adjudication of all claims, for and against the Navy,
Federal claims statutes. Detailed information about the within admiralty jurisdiction. See JAGMAN Chapter
adjudication of claims under the Foreign Claims Act is in XII.
Part B. Explanations of the various claims statutes and
information about adjudication are beyond the scope of 0803 INVESTIGATIONS GENERALLY
this chapter. They are in instructions issued by the Judge
Advocate General and available at Naval Legal Service Chapter II addresses administrative investigations.
Command activities. Whenever an investigation is conducted primarily for
claims purposes, it shall be conducted as a litigation
0802 RESPONSIBILITIES report investigation in accordance with section 0209 of
this Manual. As noted in section 0209, such an
a. The Judge Advocate General is responsible for investigation is conducted under the direction and
the resolution of claims arising under the Federal Tort supervision of a Department of the Navy attorney in
Claims Act, the Military Claims Act, the Nonscope Cl- anticipation of litigation and the investigation is
aims Act, the Personnel Claims Act, the Foreign Claims privileged.
Act, the International Agreements Claims Act pertaining
to cost sharing of claims pursuant to international agre- 0804 CLAIMS--GENERALLY
ements, the Medical Care Recovery Act, the Federal
Claims Collection Act of 1966, and postal claims. a. Claims against the United States. Claims
against the United States shall receive prompt and
b. The Deputy Assistant Judge Advocate General professional disposition. Every effort will be made to
(Claims, Investigations and Tort Litigation) is the man- ensure an investigation is thoroughly and accurately
ager of the Navy claims system that evaluates, adjudi- completed, the claimant's allegations evaluated
cates, and provides litigation support for claims arising promptly, and where liability is established, a check
under the acts listed above. He is responsible to the Judge issued as quickly as possible. Similarly, claims not
Advocate General for the management of that system. payable will be processed promptly and claimants
The claims system consists of field activities delegated advised of the reasons for the denial.
claims adjudicating authority and the attorneys and
support personnel assigned to the Claims, Investigations b. Claims in favor of the United States.
and Tort Litigation Division of the Office of the Judge Potential claims in favor of the United States will be
Advocate General. critically evaluated and, where appropriate, promptly
asserted and aggressively pursued to resolution.
c. Commanding officers of commands receiving
claims are responsible for complying with the guidance on
investigations in sections 0803 and 0804 and the guidance
on handling and forwarding claims found in section 0806.

8-3
0805 CLAIMS--ACTION BY
RECEIVING COMMAND

a. Record date of receipt. The first command

receiving a claim shall stamp or mark the date of
receipt on the letter or claim form. The envelope in
which the claim was received shall be preserved.

b. Determine the military activity involved. The

receiving command shall determine the Navy or
Marine Corps activity most directly involved with the
claim--usually the command where the incident is
alleged to have occurred--and forward a copy of the
claim to that activity. The original claim (and the
transmittal letter if a copy is forwarded to another
command for investigation) should immediately be
sent to the closest Naval Legal Service Command
activity claims office.

c. Initiate an investigation. An investigation

under this Manual shall be commenced immediately by
the command most directly involved with the claim.
Once the investigation has been completed, an advance
copy shall be forwarded by the convening authority to
the Naval Legal Service Command activity providing
claims support. Waiting until endorsements have been
obtained before providing a copy of the investigation
to the cognizant claims adjudicating authority is
neither required nor desirable. The facts of the
incident must be made known to cognizant claims
personnel as soon as possible.

0806 CLAIMS--ACTION WHEN SUIT

FILED

Action required of any DON official receiving notice

of suit. Commencement of any action against the
United States involving the Department of the Navy
and seeking money damages for injury to person or
property that comes to the attention of any officer or
employee of the Navy in connection with his official
duties shall be reported immediately to the cognizant
Office of the Judge Advocate General division, or the
Office of General Counsel, as appropriate.
Commencement of a civil action against any member
of the armed forces or employee of the Navy for
actions arising from the performance of official duties
shall be reported in the same manner.

8-4
 PART B--FOREIGN CLAIMS

0807 DEFINITION
b. Presentation of the claim. A claim may be
Foreign claims are demands for payment against the presented to any United States authority or to foreign
United States, presented by inhabitants of foreign government authorities if authorized under a Status of
countries, for property damage, personal injury, or Forces Agreement or other applicable treaty or
death occurring outside the United States and caused agreement. Claims shall be promptly transferred to the
either by members or civilian employees of the U.S. appropriate authorities for processing.
armed forces or by the noncombat activities of these
forces in foreign countries c. Appropriate authorities

0808 STATUTORY AUTHORITY (1) General. The commanding officer of

the organization or individual(s) whose activities gave
a. General. The Foreign Claims Act (FCA), rise to the claim, or the commanding officer of the
10 U.S.C. § 2734, authorizes filing, investigating, Naval Legal Service Command activity servicing the
processing, and settling foreign claims under such area in which the claim arose has authority to process
regulations as the service Secretary shall prescribe. claims under these regulations, subject to the restric-
The regulations in this chapter implement the FCA tions of subparagraphs (2) through (4) of this section.
within the Department of the Navy. A commander who receives a claim subject to the
restrictions of subparagraphs (2) through (4) shall
b. Purpose. The purpose of the FCA is to forward the claim promptly to the appropriate authority
"promote and maintain friendly relations through the and shall provide assistance necessary to investigate
prompt settlement of meritorious claims" in foreign and adjudicate the claim.
countries.
(2) Claims arising in Italy. The Officer in
c. Construction. These regulations should be Charge of the U.S. Sending State Office for Italy has
broadly construed to carry out the FCA’s statutory authority to process all claims under the Foreign
purpose. The United States generally accepts Claims Act arising in Italy.
responsibility for almost all damage, injury, or death to
local inhabitants caused by members of the U.S. armed (3) International agreements. Article VIII
forces or by the noncombat activities of our armed of the NATO Status of Forces Agreement and similar
forces in foreign countries. Proof of fault is not re- provisions of status of forces agreements with
quired. Rather, causation of the harm is determinative. individual foreign countries may restrict the use of the
Meritorious claims should be settled fairly and Foreign Claims Act by authorizing foreign government
promptly, without regard to whether the acts giving officials to process claims that would otherwise be
rise to them are mistaken, negligent, intentional, or cognizable under the Foreign Claims Act.
even criminal. Accordingly, pertinent directives of the area
commander shall be consulted. Claims shall not be pr-
0809 FILING THE CLAIM ocessed under these regulations until it has been
determined that such action is authorized.
a. General. A claim must be presented in
writing to the appropriate U.S. military authorities (4) Single-service claims responsibility.
within 2 years after the incident giving rise to the DODDIR 5515.8 of 9 June 1990 assigns "single-
claim. It must: (1) state time, date, place, and nature of service claims responsibility" to individual military
the incident; (2) state the nature and extent of any inju- departments for processing claims in specified foreign
ry, loss, or damage; and (3) request compensation in a countries. This may restrict the use of the regulations
definite amount, in the local currency. in this chapter by authorizing the assigned military

8-5
department to process claims that would otherwise be of covered claimants are:
cognizable under this chapter. Accordingly, DODDIR
5515.8, that indicates the assignments for each military (1) Foreign nationals residing in a foreign
department, shall be consulted and claims shall not be country.
processed under this chapter until it has been
determined that such action is authorized. (2) U.S. citizens residing in a foreign
country, if they are inhabitants of a foreign country and
d. Form of the claim. A properly completed are not there as U.S. service members or civilian
Standard Form 95 or other written demand, signed by employees (or their sponsored dependents).
the claimant or an authorized agent, and containing the
same essential information, is sufficient. A claim may (3) A corporation or other organization
be signed by either the injured party or an authorized doing business in a foreign country on a permanent
agent, such as a lawyer. Agents must show their title basis, even if organized under United States law.
or legal capacity and present evidence of their
authority to sign the claim. A claim may be considered (4) Foreign governments and their politi-
if it describes the incident in enough detail to give cal subdivisions, including the equivalents of State,
reasonable notice of the time, place, circumstances, county, and city governments, unless excluded by
and resulting harm. waiver provisions of an international agreement.

e. Amending the claim. A claim may be c. Covered incidents. Unless otherwise

amended at any time prior to final settlement or denial. prescribed, a claim for personal injury, death, or
Amendments must be written and signed by the clai- damage or loss of real or personal property may be
mant or an authorized agent. settled under these regulations if the incident occurred
outside the United States and was caused by either the
f. Statute of limitations. A claim must be noncombat activities of the U.S. armed forces or the
filed within 2 years after it accrues. A claim accrues actions of a member or civilian employee of those
when the claimant discovers or reasonably should have forces. Negligence is not a prerequisite. Only caus-
discovered the existence of the incident giving rise to ation is required.
the claim. Generally, to compute the statutory time
period, the day the claim accrued should be excluded d. Scope of employment. As a general rule,
and the day the claim was filed should be included. scope of employment is immaterial. If, however, a
claim arises from the act of a U.S. employee who is an
0810 CLAIMS PAYABLE indigenous person, prisoner of war, or interned enemy
alien, scope of employment is a prerequisite to United
a. General. For a claim to be payable under States responsibility. Claims arising from the
the FCA, both the claimant and the incident giving rise operation of a U.S. armed forces vehicle by a U.S.
to the claim must be covered by the statute. employee who is an indigenous person, prisoner of
war, or interned enemy alien should be settled if local
b. Covered claimants. The FCA applies only law imposes liability on the owner of the vehicle under
to "inhabitants" of foreign countries, who are defined the circumstances.
as persons, corporations, or other Government or
business entities, whose usual place of abode or 0811 CLAIMS NOT PAYABLE
activity is in a foreign country. "Inhabitant" has a
broader meaning than "citizen" or "national," but does Examples of claims not payable
not include persons whose presence in a foreign
country is merely temporary, such as tourists or a. Claims of insurers and other subrogees.
travelers. Foreign citizenship or legal domicile is not
required. It is a matter of actual residence. Examples

8-6
 b. Claims of sponsored dependents accom- m. Claims payable under other Federal
panying members and civilian employees of the U.S. statutes.
armed forces, or U.S. national civilians employed by
either the U.S. Government or a civilian contractor n. Claims for damage caused by naval
performing an agreement with the U.S. Government. vessels, unless payment is specifically authorized by
the Judge Advocate General under section 1216 of this
c. Claims of foreign military personnel Manual.
suffering injury or death incident to a joint military
mission or exercise with U.S. armed forces, or as a re- 0812 COMPUTATION OF THE AMOUNT
sult of the actions of a member or civilian employee of OF PAYMENT
the U.S. armed forces, acting within the scope of
employment, unless a treaty specifically provides for a. General. The local laws, standards, and cus-
recovery. toms of the country where the incident occurred
control when computing damages for personal injury,
d. Claims of civilian employees of the United death, or damage to property.
States, including local inhabitants, injured incident to
their employment. Compensation for such injuries is b. Compensation. An appropriate award is
separately provided in Federal statutes and agreements generally limited to reasonable compensation for the
with foreign governments. injury, death, or property damage or loss only, and
does not extend to payment of punitive damages,
e. Claims of national governments or their interest, costs, attorney's fees, bail, or any other such
political subdivisions engaging in combat with the charges, regardless of whether they are allowed by
United States or its allies. local laws, standards, or customs. In the cases of
personal injury or death, compensation may include
f. Claims of a national or a nationally medical expenses, pain and suffering, burial expenses,
controlled corporation of a country engaging in combat loss of society and companionship, and lost income. In
with the United States or its allies, unless it is cases of permanent disability, compensation may also
determined that the claimant is friendly. include diminished earning capacity and costs of
medical care in the future. In cases of property dam-
g. Claims resulting from combat activities, age, compensation may include cost of repair, cost of
except that claims arising from an accident or replacement or diminished value, and loss of use of the
malfunction incident to aircraft operations, including property.
airborne ordnance, occurring while preparing for,
going to, or returning from a combat mission may be c. Apportionment. When there are multiple
paid. claimants or beneficiaries for a single award, the
amount approved should be apportioned among them
h. Claims previously paid or denied. in the proportions prescribed by local laws, standards,
and customs.
i. Claims purely contractual in nature.
d. Joint liability. When two or more parties
j. Claims involving private contractual and are liable for causing the same harm, they may be
domestic obligations of individuals. jointly liable for payment of compensation. Any
amount paid by or on behalf of such a party should be
k. Claims based solely on compassionate deducted from the amount allowed under these
grounds. regulations.

l. Claims for paternity or illegitimacy. e. Insurance. Only insurance coverage that

has been paid or is reasonably likely to be paid to the

8-7
claimant by or on behalf of the United States by reason c. Claims presented. A Commission may be
of the same injury, death, or damage or loss, should be appointed to consider each claim as presented or a
deducted from the amount allowed under these regula- standing Commission may be appointed to consider all
tions. Otherwise, insurance coverage should not be claims presented. The commanding officer to whom a
considered. claim is presented shall refer the claim to a
Commission appointed under these regulations.
f. Negligence of the claimant. A claimant's
negligent or wrongful act contributing to the injury, d. Composition of the Commission. A
death, or damage that is the basis of the claim, may bar Commission shall be composed of either one or three
the claim entirely (contributory negligence) or members. Alternate members may be appointed where
diminish the claim proportionately (comparative circumstances require, and may be substituted for the
negligence). The local laws, standards, and customs of principal members for specific cases by order of the
the place where the incident occurred should be appointing authority. The appointing orders should
applied to determine whether and in what amount to clearly indicate which member is president of a three
allow a claim. member Commission.

g. Currency. The amount of the award should e. Qualifications of members

be computed in the local currency of the place where
the incident occurred or in the local currency of the (1) Members appointed to serve on a
place where the claimant presently resides, if different Commission shall be commissioned officers of the
from the place where the incident occurred. Navy or Marine Corps of sufficient grade and ex-
perience to carry out the purpose of the Commission,
0813 FOREIGN CLAIMS COMMISSIONS consistent with the Foreign Claims Act.

a. Purpose. The purpose of a Foreign Claims (2) Whenever possible, at least one
Commission (Commission) is to settle meritorious member of the Commission should be a judge
claims fairly and promptly. A Commission shall deny advocate. An officer of another armed force may serve
or pay (in full or in part) all claims referred to it or on a Navy or Marine Corps Commission only with the
forward adjudication recommendations to appropriate consent of the Secretary of his department, or a
higher authorities. designee, and will perform duties according to these
regulations. When an officer of the Navy or Marine
b. Authority to appoint Corps is requested to serve on a Commission of
another armed force, the immediate commanding
(1) All commanding officers of the Navy officer of such officer may determine availability pur-
and Marine Corps have authority to appoint a Commis- suant to 10 U.S.C. § 2734(a).
sion, unless restricted by a competent superior com-
mander. f. Adjudicating authority

(2) For the purpose of the FC A and these (1) General. Although a Commission may
regulations, the following officers are considered consider claims in any amount, the Commission may
commanding officers: the Judge Advocate General of only deny a claim seeking an amount within the limits
the Navy; the Officer in Charge of the U.S. Sending of the Commission’s adjudication authority. Similarly,
State Office for Italy; Chiefs of Naval Missions a Commission may only pay a settlement amount that
(including chiefs of the naval section of military mis- is within the limits of the Commission’s adjudication
sions); Chiefs of Military Assistance Advisory Groups authority. Therefore, a claim that seeks an award in
(including chiefs of the naval section of such groups); excess of the Commission’s authority may be settled
and naval attaches. by the Commission only if the mutually agreed
settlement amount is within the limits of the

8-8
Commission’s adjudication authority. The any judge advocate assigned.
Commission shall forward recommendations to
appropriate higher authorities to deny claims in excess b. Action by the appointing authority. The
of their authority, or to pay (in full or in part) an commanding officer to whom a claim is presented, and
amount that exceeds the limits of the Commission’s who is authorized to take action under this chapter, is
authority. the appointing authority for the Commission to adju-
dicate the claim. The appointing authority shall: detail
(2) Claims up to $20,000.00. The appropriately qualified members and appoint them in
Commission may deny or pay, in whole or in part, writing; convene an appropriate investigation or obtain
claims within the following limitations: the report of investigation, if one has already been
conducted; refer the claim with the investigative report
(a) One officer Commission: of the incident to the Commission for adjudication; and
$5,000.00. if applicable, receive a recommendation from the
Commission, review it with appropriate legal advice,
(b) One officer Commission (judge and take action or forward it as appropriate under these
advocate): $10,000.00. regulations.

(c) Three officer Commission: c. Action by the claims investigating officer.

$10,000.00. There is no formal procedure for conducting an
investigation of a foreign claim. The requirements of
(d) Three officer Commission with Chapter II of this Manual may be followed as a guide.
at least one judge advocate: $20,000.00. A transcript of witnesses testimony is not required.
Only the substance of their statements must be re-
(3) Claims in excess of limits or corded. The transcript should be signed by the
$20,000.00. Recommendations of a Commission for witnesses if possible. The formal rules of evidence
payment or denial of claims in excess of the limits of need not be followed, and any relevant evidence, re-
their adjudicating authority or in excess of $20,000.00 gardless of form, may be received to establish the
shall be forwarded through the appointing authority as essential facts of the incident. A report of the investi-
required under sections 0815 and 0816 of this chapter, gation shall be submitted to the convening authority as
and shall be subject to the approval of appropriate soon as practicable.
higher authorities under the delegations of authority in
section 0817 of this chapter. d. Action by the Commission:

0814 PROCESSING OF CASES (1) Review the claim and the investigation
and, if necessary, initiate or request further inves-
a. Action by the staff judge advocate. The tigation.
staff judge advocate of the commanding officer
receiving a claim for action is responsible to provide (2) Adjudicate and deny or pay (in full or
advice, guidance, and review to the commanding offi- in part) the claim if the amount claimed (for a denial),
cer, Commission, and claims investigating officer on or the mutually agreed upon settlement award (for an
the policies and procedures in these regulations. This approved claim) is within the limits of the
assistance may also be provided by the Naval Legal Commission’s adjudication authority. Otherwise, the
Service Command activity servicing the area in which Commission will need to make a recommendation to
the claim arose. Commands without a staff judge higher authority. The decisions of the Commission
advocate assigned should request assistance from the shall be determined by a majority vote.
cognizant Naval Legal Service Command activity, the
next superior command with a staff judge advocate, or (3) Negotiate with the claimant for
the nearest command with a staff judge advocate or settlement of the claim within the limit of adjudicating

8-9
authority. (1) Dates of the proceedings.

(4) Report its decision or recommendation (2) Amount claimed, stated in the local
and the reasons therefor to, or through, the appointing currency and the conversion into U.S. currency at the
authority, as required under these regulations. official rate of exchange on the date of initial
consideration of the claim.
(5) Prepare the settlement agreement and
release on the forms at Appendix A-8-a of this Manual, (3) Brief summary of essential facts,
when approving the claim. Claimant must agree to including: date of incident, date claim was filed, ci-
accept the amount paid in full satisfaction of the claim. rcumstances of incident, nature and extent of injury or
damage, and basis for determining whether the claim is
(6) Prepare the written notification to the payable.
claimant, explaining its decision to deny or pay the
claim (in full or in part), or explaining the (4) Brief evaluation of the applicable local
Commission’s recommendation to higher authority. laws, standards, and customs.

(7) Pay the claim in the currency of the (5) Date of adjudication by the Com-
country where the claimant resides. This may be mission.
subject to approval by the appointing authority or other
higher authority under these regulations. (6) Amount of any award or recommen-
ded award, stated in the local currency and the conver-
(8) Obtain a signed release upon payment sion into U.S. currency at the official rate of exchange
of any claim and forward same through the appointing on the date of the adjudication.
authority to the disbursing officer.
(7) Statement of the decision or
0815 REPORTS REQUIRED recommendation of the Commission and an explana-
tion of the basis.
The Commission shall make a written report of each
claim, to include: 0816 FORWARDING REPORTS

a. Appointing order and any modifications. a. Claims within adjudicating authority. When
a Commission pays or denies a claim within its ad-
b. Claim document. judicating authority, the original of the report and all
related papers shall be forwarded to the appointing
c. Investigative report. authority.

d. Summaries of witnesses testimony or b. Claims in excess of adjudicating authority.

witnesses statements signed by the witnesses if possi- When a Commission recommends payment or denial
ble. of a claim in excess of its adjudicating authority, the
original of the report and all related papers shall be
e. The settlement agreement and release when forwarded to the appointing authority to retain, and a
payment is approved or recommended. copy shall be forwarded through the appointing
authority to the appropriate higher authority for action
f. Proposed notification to the claimant. under the delegations of authority in section 0817 of
this chapter.
g. Memorandum containing the following
information: 0817 ACTION ON FORWARDED CLAIMS

8-10
 a. Claims in excess of adjudicating authority.
When payment or denial of a claim in excess of the a. Reconsideration
adjudicating authority of the Commission is
recommended, the following officers may approve or (1) A claim may be reconsidered by the
disapprove the recommendation and the claim, in original Commission, a successor Commission, or a
whole or in part, pay the claim, or return the claim with newly appointed Commission, upon written request
instructions to the appointing authority or the from the claimant, upon the original Commission's
Commission: own initiative, or upon instructions from a superior
officer authorized to take action on the claim, when it
(1) Claims up to $50,000.00. The Depu- appears that the original action was incorrect in law or
ty Judge Advocate General, the Assistant Judge Ad- fact based on the evidence of record at the time of the
vocate General (Civil Law), or the Deputy Assistant action or based on evidence subsequently received.
Judge Advocate General (Claims, Investigations and
Tort Litigation), or, with respect to claims arising in (2) If the Commission concludes that the
Italy, the Officer in Charge of the U.S. Sending State original recommendation was incorrect, it will modify
Office for Italy; the decision or forward a supplemental
recommendation to or through the appointing authority
(2) Claims from $50,000.00 through for action. If the Commission concludes that the
$100,000.00. The Judge Advocate General; and original recommendation was correct, it will affirm the
decision, and forward a memorandum for information
(3) Claims in excess of $100,000.00. to or through the appointing authority. Notification to
The Secretary of the Navy may pay the first $100,00- claimant will be as prescribed in these regulations.
0.00 and report the excess to the Comptroller General
for payment. 10 U.S.C. § 2734(d). (3) Claimant's request for reconsideration
of the decision of the Commission or the action of a
0818 NOTIFICATION TO THE CLAIMANT higher authority should indicate the legal or factual
basis asserted as grounds for relief. When action on
Claimant shall be notified promptly by the reconsideration has been completed and approved, the
Commission in writing of approval or denial of claims appointing authority shall notify the claimant that such
within the adjudicating authority of the Commission, action is final and conclusive by law. 10 U.S.C. §
or of referral of claims in excess of the adjudicating 2735.
authority of the Commission to higher authority.
Notification should inform claimant of the approved b. Appeal. There is no right of appeal under
recommendation or action of the Commission and this statute.
briefly explain the reasons therefor. When resources
permit, the letter of notification should be translated c. Suit. The United States has not consented
into claimant's language, preferably using the interlin- to be sued under this statute.
ear method. When final action on a claim is taken by
an officer superior to the appointing authority of the 0820 PAYMENT
Commission, the notification letter should be for-
warded through the appointing authority, with a copy a. Documentation. When a recommendation for
to the Commission. Claimant shall not be informed of payment within the adjudicating authority of the Com-
the amount of recommendations to higher authority for mission has been approved by the appointing authority,
payment and shall not be shown the report of the or when a larger award has been approved by appro-
Commission. priate higher authority, the appointing authority shall
submit the original and one copy of the approved
0819 RECONSIDERATION, APPEAL, AND report of the Commission to the nearest Navy or
SUIT Marine Corps disbursing officer for payment of the

8-11
claim. If no Navy or Marine Corps disbursing officer
is reasonably available, then the nearest United States
disbursing officer of any agency may be requested to
pay the claim.

b. Voucher. The command adjudicating the

foreign claim is responsible for immediately mailing a
legible copy of every voucher to: The Office of the
Judge Advocate General (Code 64), 1322 Patterson
Ave, SE, Washington Navy Yard, DC 20374-5066.

c. Accounting Data. Foreign claims are paid

from a centrally managed budget with a fund citation
from the NAVCOMPT Manual, Vol. II, para. 023304.
The Standard Document Number (SDN) that must
appear on every Foreign Claim Voucher is:
"N00013$$MDA1001" (where "$$" equals the last
two digits of the fiscal year when the deposit is
actually made). The Line of Accounting Data (LOA)
that must appear on every Foreign Claim Voucher is:
"AA 17+1804.12TL 420 00013 H 068892 2D +#####
00013+A1001X" (where "+" is the last digit of the
fiscal year when the deposit is actually made, and
where "#####" is the five digit UIC of the command
making the deposit).

d. Release. A release shall be obtained from

the claimant when payment of an award is accepted.
The suggested form for the release is in Appendix A-8-
a of this Manual.

e. Advance payments. Advance payments

may be paid under this section.

f. Currency. All payments under this chapter

shall be made in the local currency of the country in
which the claim arose or in the currency of the country
where the claimant resides at the time such payment, if
different from the country where the claim arose, due
to Federal currency restrictions.

8-12
 SETTLEMENT AGREEMENT

File Reference: _____________

I, ___________________ [claimant], hereby agree to accept the sum of

_____________________________[amount] ($ [or equivalent] ___________) in full satisfaction
and final settlement of any and all claims which I have—individually, on behalf of the next of
kin of ____________________ [injured party], and on behalf of the estate of
__________________ [injured party]—or may have against the United States, its officers, agents
and employees, for property damage, personal injury, wrongful death, [whichever applicable]
and associated losses arising from ______________ [brief details of incident], and for any and
all damages, injuries and losses proximate and consequent thereto.

In consideration hereof, I hereby release and forever discharge the United States, its
officers, agents and employees, from all liability, claims and demands of whatsoever nature
arising from the said incident.

It is understood that the amount tendered is accepted in full satisfaction and final
settlement and that the award is made pursuant to the Foreign Claims Act, 10 U.S.C. § 2734,
which provides for the administrative settlement of disputed claims against the United States
arising from its activities, and is not to be construed as an admission of liability on the part of,
but as a release of, the United States, its officers, agents and employees.

__________________ ______________________________
DATE [claimant]

WITNESSES:

________________________ ______________________________
NAME ADDRESS
________________________ ______________________________
NAME ADDRESS

A-8-a
 CHAPTER IX
AUTHORITY OF ARMED FORCES PERSONNEL
TO PERFORM NOTARIAL ACTS

PART A -- FEDERAL AND NON- 0908 GENERAL INSTRUCTIONS FOR

FEDE RAL AUTHORITY ACKNOWLEDGMENTS
AND SWORN INSTRUMENTS
0901 SCOPE
a. Duties and responsibilities of the notary
0902 FEDERAL AUTHORITY TO b. How to take an acknowledgment
ADMINISTER OATHS AND PER- c. How to take a sworn
FORM NOTARIALACTS affidavit or instrument
d. How to take an oath
a. Relationship to state authority e. Seal of the person executing document
b. Authority to administer oaths with f. Seal of the person performing
regard to military administration and notarial act
military justice g. Witnesses
c. Authority to act as a notary h. By whom acknowledgments or
d. No fees sworn instruments may be taken
e. Duties and responsibilities of notaries i. When, where, and for whom
f. Proof of authority acknowledgments and sworn
g. Legal effectiveness instruments may be taken
h. Formats j. Procedure for certifying a copy of a
document
0903 NON-FEDERAL AUTHORITY TO k. Identifying the person
PERFORM NOTARIAL ACTS requesting the notarial act

a. Non-Federal authority 0909 NOTARY LOGS

b. Exercise of non-federal authority
c. Legal effectiveness 0910 SPECIAL INSTRUCTIONS FOR
d. Civil notaries ACKNOWLEDGMENTS AND SW-
ORN INSTRUMENTS (SUMMARY
PART B -- COMPILATION OF NON- OF STATE LAWS)
FEDERAL NOTARIAL
PROCEDURES AND LAWS

0904 INTRODUCTION

0905 UNIFORM ACKNOWLEDGMENT

ACT, UNIFORM RECOGNITION
OF ACKNOWLEDGMENTS

0906 ACKNOWLEDGMENTS

0907 SWORN INSTRUMENTS

9-1
 CHAPTER IX
AUTHORITY OF ARMED FORCES PERSONNEL
TO PERFORM NOTARIAL ACTS

PART A--FEDERAL AND NON-FEDERAL AUTHORITY

0901 SCOPE (e) Staff judge advocates and legal

officers, and acting or assistant staff judge advocates
This chapter designates individuals authorized to and legal officers;
perform notarial acts and compiles existing laws,
regulations, and guidelines on the authority of U.S. (f) Officers of the grade of 0-4 and
Armed Forces members to administer oaths; take af- above;
fidavits, sworn statements, or depositions; take
acknowledgments; and perform other notarial acts. (g) Executive and administrative
officers;
0902 FEDERAL AUTHORITY TO
ADMINISTER OATHS AND PERFORM (h) Marine Corps officers with a
NOTARIAL ACTS Military Occupational Specialty (MOS) of 4430, while
assigned as legal administrative officers;
a. Relationship to state authority. The authority
to perform notarial acts under 10 U.S.C. § 1044a is (i) All limited duty officers (law), all
separate and apart from any authority provided by legalmen E-7 and above, all independent duty
State law. Persons performing notarial acts under the legalmen, and all legalmen assigned to legal assistance
former statute derive their authority under Federal, not offices or staff judge advocates providing legal
State, law. Federal notarial authority may be exercised assistance; and
without regard to geographic limitation; State notarial
authority, on the other hand, may only be exercised in (j) Persons empowered to authorize
the state concerned. The validity of notarial acts searches, for any purpose relating to a search
performed pursuant to 10 U.S.C. § 1044a is a matter of authorization.
Federal law.
(2) Under the authority of 10 U.S.C. §
b. Authority to administer oaths with regard to 936(b), the following persons on active duty or
military administration and military justice performing inactive-duty training may administer oaths
necessary in performing their duties:
(1) Under the authority of 10 U.S.C. § 936(a),
the following persons on active duty or performing (a) The president, military judge, trial
inactive-duty training may administer oaths for the counsel, and assistant trial counsel for all general and
purposes of military administration, including military special courts-martial;
justice:
(b) The president and counsel for the
(a) Judge advocates; court of any court of inquiry;

(b) Summary courts-martial; (c) Officers designated to take

depositions;
(c) Adjutants, assistant adjutants, acting (d) Persons detailed to conduct
adjutants and personnel adjutants; investigations;

(d) Commanding officers of the Navy, (e) Recruiting officers;

Marine Corps, and Coast Guard;
(f) Officers designated and acting as a

9-2
Casualty Assistance Calls Program Officer; and assistance billets, when authorized by the cognizant
commander.
(g) The president and recorder of
personnel selection boards. (2) Subject to the guidance set forth in
section 0908, the following acts may be performed by
(3) Under the authority of 10 U.S.C. §§ 502 the persons listed above while acting as a notary:
and 1031, any U.S. Armed Forces commissioned
officer of any Regular or Reserve component, whether (a) Administration of oaths,
or not on active duty, may administer oaths required acknowledgments, affidavits, and affirmations; and
for appointment, enlistment, or commission in the
Armed Forces. (b) Certification of copies as true.

c. Authority to act as a notary d. No fees. Fees may not be paid or received for
the administration of any oath or the performance of
(1) Under the authority of 10 U.S.C. § 1044a, any notarial act under the authority of 10 U.S.C. §§
the following persons may perform the notarial acts 936 or 1044a.
listed in subparagraph (2) below for persons listed in
section 0706 of this Manual as eligible for legal e. Duties and responsibilities of notaries. Persons
assistance, and for others as authorized in 10 U.S.C. § acting as notaries under the authority of 10 U.S.C. §
1044a: 1044a are governed in the performance of their duties
by, and must comply with, section 0908.
(a) Civilian attorneys serving as legal
assistance officers; f. Proof of authority. The signature of any person
administering an oath or acting as a notary under the
(b) the following persons while on active authority of 10 U.S.C. §§ 936 or 1044a together with
duty or performing inactive-duty training: the title of his or her office is prima facie evidence that
the signature is genuine, that the person holds the
(i) Adjutants, assistant adjutants and office designated, and that he or she has the authority
personnel adjutants; to so act.

(ii) Officers of the grade of 0-4 and g. Legal effectiveness. Notarial acts performed
above; under the authority of 10 U.S.C. § 1044a are legally
effective for all purposes. Oaths administered under
(iii) Commanding, executive and the authority of 10 U.S.C. § 936 are legally effective
administrative officers; for the purposes for which the oath is administered.
Federal notarial authority may be exercised without
(iv) Legal and assistant legal officers; regard to geographic limitations and is not dependent
on any state or local law.
(v) Marine Corps officers with MOS
4430 while assigned as legal administrative officers; h. Formats. Formats recommended for taking
acknowledgements and executing sworn instruments
(vi) Judge advocates; are set forth in Appendix A-9-a and A-9-b,
respectively.
(vii) All limited duty officers (law), all
legalmen E-7 and above, all independent duty 0903 NON-FEDERAL AUTHORITY TO
legalmen, and all legalmen assigned to legal assistance PERFORM NOTARIAL ACTS
offices or staff judge advocates providing legal
assistance; and a. Non-Federal authority. Separate from, but
related to, the Federal authority to perform notarial acts
(viii) Marine Corps legal services (see 0902a), the laws of most States, the District of
specialists E-5 and above, while serving in legal Columbia, and of U.S. possessions, territories, and

9-3
commonwealths authorize certain U.S. Armed Forces (2) Who has authority to perform the
members to perform for U.S. Armed Forces members, particular notarial act under the laws of the
their dependents, and accompanying civilians one or jurisdiction(s) involved (see section 0910); and
more of the following notarial acts:
(3) For whom the particular notarial function
(1) Administer oaths; may be performed under the laws of the jurisdiction(s)
involved (see section 0910).
(2) Take affidavits;
c. Legal effectiveness. When exercising State
(3) Take sworn statements; authority, the statutory requirements of the
jurisdiction(s) in which the instrument is to be used
(4) Take depositions; and determine the legal effectiveness of the notarial acts
performed. When a single instrument requiring
(5) Take acknowledgements. acknowledgment is to be used in more than one
jurisdiction, the acknowledgment must comply with
b. Exercise of non-federal authority. the laws of every jurisdiction in which it is to be used.
Occasionally, a situation may arise in which the
exercise of State, vice Federal, notarial authority may d. Civil notaries. Although both Federal and
be warranted. Before exercising such authority, the State law authorize a variety of Federal officials to
notary official should determine: perform notarial acts, it is permissible in the United
States to use locally appointed notaries public, or when
(1) The State or States where the instrument abroad, a U.S. consul.
is to be used;

PART B--COMPILATION OF NON-FEDERAL NOTARIAL PROCEDURES AND LAW

0904 INTRODUCTION by repeal or revision of existing statutory laws on the

power to perform notarial acts, resulting in overlapping
Part B provides general guidance for notarial acts and or conflicting authorization. The alphabetical listing of
specific statutory requirements in each State, the States in section 0910 references those jurisdictions
District of Columbia, and United States possessions, which have enacted the Acts, specifies additional
territories, and commonwealths. U.S. Armed Forces statutes in those jurisdictions granting similar powers,
members should use the formats in Appendix A-9-a and summarizes each jurisdiction's authorization to
and A-9-b for effective execution. When available, perform notarial acts. In jurisdictions with conflicting
consult a judge advocate. Any instruction from a authorization, the most restrictive view is provided to
civilian attorney who prepares and forwards an assure the instrument's effectiveness. Any notarial
instrument for execution should be followed carefully. official having questions about any of these statutes
should consult a judge advocate before performing a
notarial act.
0905 UNIFORM ACKNOWLEDGMENT
ACT, UNIFORM RECOGNITION 0906 ACKNOWLEDGMENTS
OFACKNOWLEDGMENTS ACT AND
UNIFORM LAW ON NOTARIAL An acknowledgment is a formal declaration or
ACTS admission before a properly authorized official, by a
person who has executed an instrument, that such
Several States have enacted the Uniform instrument is his act or deed. It includes the certificate
Acknowledgment Act or its successors, the Uniform or written evidence of the act of acknowledgment
Recognition of Acknowledgments Act and its made by the officer, as well as the act itself.
successor, the Uniform Law on Notarial Acts. In Acknowledgments relate primarily to written
many instances, these Acts have not been accompanied instruments affecting land, or granting or creating

9-4
legal rights. Statutes may require that deeds, mort- acknowledgment should be avoided. If unavoidable,
gages, leases (particularly those over a certain length they should be initialed by the notary wherever they
of years), or powers of attorney be acknowledged. See appear.
Appendix A-9-a. (2) If a signature has been affixed outside
the notary's presence, the signer must verify, affirm,
0907 SWORN INSTRUMENTS and acknowledge the signature on the ac-
knowledgment or affidavit. The notary should
A sworn instrument is a written declaration signed by a compare the signature affixed with a signature made in
person who declares under oath before a properly the notary's presence and on the signer's identification.
authorized official that the facts set forth are true to the
best of his knowledge and belief. Sworn instruments c. How to take a sworn affidavit or instrument.
include affidavits, sworn statements, and depositions. An affidavit is a sworn statement, made by a person
See Appendix A-9-b. known as the affiant or deponent. The facts in the
affidavit are sworn or affirmed to be true by the affiant
0908 GENERAL INSTRUCTIONS FOR before the notary. See Section 0908d on taking oaths.
SWORN INSTRUMENTS
(1) The notary officer should sign his name,
a. Duties and responsibilities of the notary. rank, office title, name of command, and Social
Notaries may not engage in the practice of law and, Security number. The notary must have authority in
accordingly, may not draw up legal documents, such as the venue or the place the affidavit is administered.
wills, contracts, mortgages, and deeds. The venue is the name of the State, and the county, or
other territorial subdivision to which jurisdiction is
(1) Notaries may not sign their names to limited.
blank instruments. Nor may they certify the authen-
ticity of public, registered, or court records or (2) The notary need not be concerned with
documents, or issue certified copies of such documents the affiant's veracity. The notary is not required to
or records. They may not take an affidavit or an independently verify the truth of the facts stated in the
acknowledgment unless the person who signed the affidavit. The affiant may be subject to prosecution for
instrument is actually in their presence. Notaries must perjury if the facts are willfully misstated. In taking
administer oaths, if an oath is authorized or required, in verification upon oath or affirmation, the notarial
person. Notaries may not falsely execute certificates, officer must identify, either from personal knowledge
such as predating or postdating the document. The or satisfactory evidence, that the person appearing
notarial authority may not be delegated to another before the officer and making the verification, is the
person. person whose signature appears on the statement being
verified.
(2) Notaries may be subject to civil and
criminal liability, including fines and imprisonment for d. How to take an oath. Oaths and affirmations
misconduct, negligence, malpractice, or other breach are pledges whereby affiants swear or affirm the truth
of official duties. of statements made by them. Oaths and affirmations
are used when taking affidavits or sworn instruments.
b. How to take an acknowledgment See Section 0908c.

(1) The acknowledgment must be made in (1) Persons administering the oath should
the presence of the notary, who must identify both the tell the affiant to raise his right hand and say the
person and the person's military status or relationship. following:
Notaries must decline to take the acknowledgment if
identification is impossible. Notaries may not take "Do you swear that the information contained
their own acknowledgments. Notaries should ensure in this document is the truth to the best of your
the correct dates are properly inserted for any knowledge so help you God?"
certificate verified or acknowledged before them.
Changes, cross outs, and erasures in the body of the (2) Affirmation may be administered in the

9-5
following form:
i. When, where, and for whom
"Do you solemnly, sincerely, and truly declare acknowledgments and sworn instruments may be
or affirm the information contained in this document is taken. The alphabetical listing of States in section 0910
the truth to the best of your knowledge?" should be consulted to determine when, where, and for
whom, acknowledgments and sworn instruments may
(3) The reply should be "I do" or similar be taken.
words of assent to both the oath and affirmation.
j. Procedure for certifying a copy of a
e. Seal of the person executing document. document. In certifying or attesting a copy of a
Although most jurisdictions no longer distinguish document or other item, the notarial officer must
between sealed and unsealed instruments, some require determine that the proffered copy is a full, true, and
certain instruments be executed under seal. When a accurate transcription or reproduction of that copied,
seal is required, insert the statement "witness the fol- by carefully and personally comparing the copy and
lowing signature and seal," immediately preceding the original or observing the copying process. Documents
signature of the person executing the document. In can not be certified as true copies based upon the
most jurisdictions, typing, printing, or writing "(SEA- assertion of the requester.
L)" or the symbol "(LS)" after the signature completes
the sealing of the instrument. Others also require that k. Identifying the person requesting the notarial
the intention to create a sealed instrument be reflected act. In witnessing or attesting a signature, the notarial
in the body of the instrument. Only use a seal if officer must determine that the person appearing
specifically required by statute or other law. Seals before the officer is the person named in the document
should be used cautiously, since in some States to be signed. A notarial officer has satisfactory
instruments under seal create special legal evidence of the identity of the person whose signature
consequences or have a unique status. Consult a judge is on a document and that the person is within the class
advocate as necessary. of persons for whom the notarial act may be
performed, if that person is: (1) personally known to
f. Seal of the person performing notarial act. the notarial officer, (2) identified upon the oath or
State statutes authorize the performance of notarial acts affirmation of a credible witness personally known to
without an impressed or raised seal. The formats in the notarial officer, or (3) identified by identification
Appendix A-9-a and A-9-b provide evidence of an documents.
officer's authority to take acknowledgments or sworn
instruments. 0909 NOTARY LOGS

g. Witnesses. Acknowledgment of instruments Notaries must be able to confirm specific notary acts
which may affect title to real property must be they performed many years after the act. A notary log,
witnessed by three persons. See Appendix A-9-a. The therefore, should be maintained and kept indefinitely
name, grade or rate, branch of service, Social Security by each notary, even after release from active duty.
number, and permanent home address of each witness The log should include signer's name and signature,
should be typed or printed below the signature of the document, date, and location. These personal logs may
witness. not be made part of any Navy system of records and
are not to be passed to other Navy personnel.
h. By whom acknowledgments or sworn
instruments may be taken. The majority of State 0910 SPECIAL INSTRUCTIONS FOR
statutes authorize any commissioned officer with the SWORN INSTRUMENTS
grade of ensign (or second lieutenant) or higher to take (SUMMARY OF STATE LAWS)
acknowledgments and sworn instruments. Section
0910 indicates States that require the commissioned This section is an alphabetical summary of
officer have a higher grade, or permit commissioned, requirements to take acknowledgments, administer
noncommissioned, or petty officers of a lower grade or oaths, and prepare sworn instruments pursuant to
rate, to perform these acts, or where they restrict the authority granted to specified military officials under
authority of officers to perform certain functions. the laws of each State, the District of Columbia, and

9-6
United States possessions, territories, and authorized by regulation of the Armed Forces to
commonwealths. Unless otherwise indicated, perform notarial acts may take acknowledgments, out-
"commissioned officer" as used in this section includes side the State, of the following persons and their
commissioned warrant officers. Unless otherwise indi- dependents: (a) U.S. merchant seamen, (b) U.S.
cated, "U.S. Armed Forces members" does not include Armed Forces members, and (c) others serving with or
spouses, dependents of such members, or civilians accompanying the Armed Forces.
employed by the Armed Forces. The limitations herein
are not applicable to the exercise of Federal notarial 2. Oaths and sworn instruments. Same as for
authority under 10 U.S.C. § 1044a, or to the acknowledgments.
administration of oaths pursuant to 10 U.S.C. §936
(Article 136, UCMJ). 3. Seal. Not required. Use format in A-9-a or A-
9-b.
ALABAMA Ala. Code § 35-4-26 (1991).
ARKANSAS Enacted Uniform Acknowledgments
1. Acknowledgments. Any commissioned officer Act as Ark. Code Ann. §§ 16-47-201 to -218 (1987);
in the U.S. Armed Forces may take acknowledgements Ark. Code. Ann. § 16-2-104 (1987); Ark. Code Ann.
of any person, outside the State. §16-47-109 (validating all acknowledgments of Armed
Forces members taken prior to March 20, 1945).
2. Oaths and sworn instruments. Same as for
acknowledgements. 1. Acknowledgments. Any commissioned officer,
excluding warrant officers, on active duty in the U.S.
3. Seal. Not required. Use format in Armed Forces may take acknowledgments, at any
A-9-a or A-9-b. place, of persons serving in or with the U.S. Armed
Forces and their dependents.
ALASKA Alaska Stat. § 34.15.160 (1985); enacted
Uniform Recognition of Acknowledgments Act as 2. Oaths and sworn instruments. Any person in
Alaska Stat. §§ 09.63.010-.130 (1983 & Supp. 1991). the U.S. Armed Forces may make an oath to any
affidavit before any commissioned officer.
1. Acknowledgments. Any commissioned
officer on active duty in the U.S. Armed Forces and 3. Seal. Not required. Use format in A-9-a or A-
others authorized by regulation of the Armed Forces to 9-b.
perform notarial acts may take acknowledgments, at
any place, of the following persons and their CALIFORNIA Cal. Civ. Code Ann. § 1183.5 (West
dependents: (a) U.S. merchant seamen, (b) U.S. 1992).
Armed Forces members, and (c) others serving with or
accompanying the Armed Forces. 1. Acknowledgments. Any officer on active duty
in the U.S. Armed Forces with the general powers of a
2. Oaths and sworn instruments. Same as for notary public under section 0902 may take
acknowledgments. acknowledgments, at any place, for any person serving
in the U.S. Armed Forces, or such person's spouse, and
3. Seal. Not required. Use format in A-9-a or for any person serving with, employed by, or
A-9-b. accompanying such U.S. Armed Forces outside the
United States, the Canal Zone, Puerto Rico, Guam, and
ARIZONA Enacted Uniform Recognition of the Virgin Islands.
Acknowledgments Act as Ariz. Rev. Stat. Ann. §§ 33-
501 to -508 (1974 & Supp. 1987) and Uniform 2. Oaths and sworn instruments. Same as for
Acknowledgments Act as Ariz. Rev. Stat. Ann. §§ 33- acknowledgments.
511 to -513. (Supp. 1987).
3. Seal. Not required. Use format in A-9-a or A-
1. Acknowledgments. Any commissioned officer 9-b.
on active duty in the U.S. Armed Forces and others

9-7
COLORADO Colo. Rev. Stat. Ann. § 24-12-104 Armed Forces members, and (c) others serving with or
(1973); enacted Uniform Recognition of accompanying the U.S. Armed Forces.
Acknowledgments Act as Colo. Rev. Stat. Ann. §§ 12-
55-201 to -211 (1991). 3. Seal. Not required. Use format in A-9-a or A-
1. Acknowledgments. Any commissioned officer 9-b.
on active duty in the U.S. Armed Forces and others
authorized by regulation of the Armed Forces to DELAWARE Del. Code Ann. tit. 25, § 130 (1989);
perform notarial acts may take acknowledgments, enacted Uniform Law on Notarial Acts as Del. Code
outside the State, of the following persons and their Ann. tit. 29, §§ 4321-4328 (Supp. 1991).
dependents: (a) U.S. merchant seamen, (b) U.S.
Armed Forces members, and (c) others serving with or 1. Acknowledgments. Any commissioned officer,
accompanying the Armed Forces. excluding warrant officers, on active duty in the U.S.
Armed Forces may take acknowledgments of: (a) U.S.
2. Oaths and sworn instruments. Same as for Armed Forces members at any place, (b) merchant
acknowledgments. seamen outside the limits of the 48 contiguous States
and the District of Columbia, and (c) others outside
3. Seal. Not required. Use format in A-9-a or A- said limits by permission, assignment, or direction of
9-b. any department or official of the U.S. Government, in
connection with any activity pertaining to any war in
CONNECTICUT Conn. Gen. Stat. Ann. §§ 1-24, 27- which the United States is then engaged. In addition,
137 (West 1990); enacted Uniform Acknowledgment any such officer may take acknowledgments of any
Act as Conn. Gen. Stat. Ann. §§ 1-28 to -41 (West person, at any place, pursuant to section 0902.
1990) and Uniform Recognition of Acknowledgments
Act as Conn. Gen. Stat. Ann. §§ 1-57 to -65 (West 2. Oaths and sworn instruments. Same as for
1990). acknowledgments.

1. Acknowledgments. Any commissioned officer 3. Seal. Not required. Use format in A-9-a or A-
on active duty in the U.S. Armed Forces and others 9-b.
authorized by regulation of the U.S. Armed Forces to
perform notarial acts may take acknowledgments, DISTRICT OF COLUMBIA
outside the State, of the following persons and their
dependents: (a) U.S. merchant seamen, (b) U.S. No local statutory authority for any U.S. Armed Forces
Armed Forces members, and (c) others serving with or member to take acknowledgments, oaths, or sworn
accompanying the U.S. Armed Forces. Any instruments. See section 0902 for Federal authority to
commissioned officer, excluding warrant officers, perform these functions.
on active duty in the Armed Forces may take
acknowledgments, inside the State, of Armed Forces FLORIDA Fla. Stat. Ann. § 92.51, 695.031 (West
members. 1989).

2. Oaths and sworn instruments. U.S. Armed 1. Acknowledgments. Any commissioned

Forces judge advocates, law specialists in the Coast officer, excluding warrant officers, on active duty in
Guard, adjutants, assistant adjutants, acting adjutants, the U.S. Armed Forces may take acknowledgments, at
personnel adjutants, commanding officers, executive any place, of U.S. Armed Forces members, their
officers, and those officers whose rank is lieutenant spouses, and persons whose duties require their
commander or major or higher may take oaths, at any presence with the U.S. Armed Forces.
place, of persons serving in or with the U.S. Armed
Forces and their spouses. In addition, any 2. Oaths and sworn instruments. Same as for
commissioned officer on active duty in the U.S. Armed acknowledgments.
Forces and others authorized by regulation of the U.S.
Armed Forces to perform notarial acts may take oaths, 3. Seal. Not required. Use format in A-9-a or A-
outside the State, of the following persons and their 9-b.
dependents: (a) U.S. merchant seamen, (b) U.S.

9-8
GEORGIA Ga. Code Ann. §§ 45-17-30 to -34 acknowledgments.
(Michie 1990).
3. Seal. Not required. Use format in A-9-a or A-
1. Acknowledgments. Any commissioned officer 9-b.
may take acknowledgments of any person, at any IDAHO Idaho Code §§ 55-705, 55-713 (1991).
place, for Georgia property only. In addition, any
commissioned officer on active duty in the U.S. Armed 1. Acknowledgments. Any officer in the U.S.
Forces may take acknowledgments of the following Armed Forces designated to take a deposition may take
persons and their spouses, dependent children, and the acknowledgment, at any place, of persons in the
other dependents: (a) U.S. Armed Forces members at U.S. Armed Forces or otherwise subject to military
any place, (b) merchant seamen outside the limits of law, their wives, and dependents.
the United States, and (c) others outside said limits by
permission, assignment, or direction of any department 2. Oaths and sworn instruments. Same as for
or official of the U.S. Government, in connection with acknowledgments.
any activity pertaining to the prosecution of any war in
which the United States is then engaged. 3. Seal. Not required. Use format in A-9-a or A-
9-b.
2. Oaths and sworn instruments. Same as for
acknowledgments. ILLINOIS Ill. Ann. Stat. ch. 30 para. 19 (Smith-Hurd
Supp. 1992); enacted Uniform Recognition of
3. Seal. Not required. Use format in A-9-a or A- Acknowledgments Act as Ill. Ann. Stat. ch. 30, Para.
9-b. 221 -230 (Smith-Hurd Supp. 1992).

GUAM Guam Gov't Code § 22200 (1970); enacted 1. Acknowledgments. Any commissioned officer,
Uniform Recognition of Acknowledgments Act as excluding warrant officers, on active duty in the U.S.
Guam Civ. Code §§ 1208-1212.4 (Supp. 1973). Armed Forces and others authorized by regulation of
the U.S. Armed Forces to perform notarial acts may
1. Acknowledgments. Any commissioned officer take acknowledgments, at any place, of the following
on active duty in the U.S. Armed Forces and others and persons and their dependents: (a) U.S. merchant
authorized by regulation of the U.S. Armed Forces to seamen, (b) U.S. Armed Forces members, and (c)
perform notarial acts may take acknowledgments, out- others serving with or accompanying the U.S. Armed
side Guam, for the following persons and their Forces.
dependents: (a) U.S. merchant seamen, (b) U.S.
Armed Forces members, and (c) others serving with or 2. Oaths and sworn statements. Same as for
accompanying the U.S. Armed Forces. acknowledgments.

2. Oaths and sworn instruments. Same as for ack- 3. Seal. Not required. Use format in A-9-a or A-
nowledgments. 9-b.

3. Seal. Not required. Use format in A-9-a or A- INDIANA Ind. Code Ann. §§ 32-2-3-1 to -5 (Burns
9-b. 1980 & Supp. 1988).

HAWAII Haw. Rev. Stat. § 502-50 (Michie 1993). 1. Acknowledgments. Any commissioned
officer, excluding warrant officers, on active duty in
1. Acknowledgments. Any officer in the U.S. the U.S. Armed Forces may take acknowledgments of:
Armed Forces authorized in section 0902 may take (a) those serving in or with the U.S. Armed Forces at
acknowledgments of any person in the U.S. Armed any place, (b) merchant seamen outside the limits of
Forces at any place, including any person outside the the 50 States and the District of Columbia, and (c)
United States. others outside said limits by permission, assignment, or
direction of any department or office of the U.S.
2. Oaths and sworn instruments. Same as for Government, for any activity pertaining to the

9-9
prosecution of any war in which the United States is the following persons and their dependents: (a) U.S.
then engaged. merchant seamen outside the limits of the United
States, (b) U.S. Armed Forces members outside the
2. Oaths and sworn instruments. Same as for ack- State, and (c) others outside said limits by permission,
nowledgments. assignment, or direction of any department or official
3. Seal. Not required. Use format in A-9-a or A- of the U.S. Government.
9-b. 2. Oaths and sworn instruments. Same as for ack-
nowledgments.
IOWA Iowa Code Ann. § 558.26 (West 1950); Iowa
Rules of Court 153 (West 1978). 3. Seal. Not required. Use format in A-9-a or A-
9-b.
1. Acknowledgments. Any commissioned
officer, excluding warrant officers, on active duty in LOUISIANA La. Rev. Stat. Ann. § 35:7 (West 1985);
the U.S. Armed Forces may take acknowledgments, at enacted modified version of Uniform
any place, of those serving in or with the U.S. Armed Acknowledgments Act as La. Rev. Stat. Ann. §§
Forces. 35:511-513 (West 1985).

2. Oaths and sworn instruments. Depositions 1. Acknowledgments. Any commissioned officer

may on active duty in the U.S. Armed Forces may take
be taken by any commissioned officer under whose acknowledgments, at any place, of persons serving in
command the person giving the deposition is serving, or with the U.S. Armed Forces or the Coast Guard.
or by any commissioned officer of the Judge Advocate
General's Corps. 2. Oaths and sworn instruments. Same as for ack-
nowledgments.
3. Seal. Not required. Use format in A-9-a or A-
9-b. 3. Seal. Not required. Use format in A-9-a or A-
9-b.
KANSAS Enacted Uniform Law on Notarial Acts as
Kan. Stat. Ann. §§ 53-501 to -511 (1983 & Supp. MAINE Me. Rev. Stat. Ann. tit. 33 § 203 (West 1988
1991). & Supp. 1992); enacted Uniform Recognition of
Acknowledgments Act as Me. Rev. Stat. Ann. tit. 4 §§
1. Acknowledgments. Any commissioned officer 1011-1019 (1964).
on active duty in the U.S. Armed Forces may take
acknowledgments of any person, at any place, pursuant 1. Acknowledgments. Any commissioned
to section 0902. officer, excluding warrant officers, on active duty in
the U.S. Armed Forces and others authorized by
2. Oaths and sworn instruments. Same as for regulation of the U.S. Armed Forces to perform
acknowledgments. notarial acts may take acknowledgements, at any place,
of the following persons and their dependents: (a)
3. Seal. Not required. Use format in A-9-a or A- U.S. merchant seamen, (b) U.S. Armed Forces
9-b. members, and (c) others serving with or accompanying
the U.S. Armed Forces.
KENTUCKY Ky. Rev. Stat. Ann. § 384.080
(Michie/Bobbs-Merrill 1972); enacted Uniform 2. Oaths and sworn statements. Same as for
Recognition of Acknowledgments Act as Ky. Rev. acknowledgments.
Stat. Ann. §§ 423.110-.190 (Michie/Bobbs-Merrill
1972 & Supp. 1990). 3. Seal. Not required. Use format in A-9-a or A-
9-b.
1. Acknowledgments. Any commissioned officer
on active duty in the U.S. Armed Forces and others MARYLAND Md. Ann. Code art. 18, § 15 (Michie
authorized by regulation of the U.S. Armed Forces to 1992); enacted Uniform Acknowledgments Act as Md.
perform notarial acts may take acknowledgments, of Ann. Code art. 18, §§ 1-14 (1987).

9-10
 perform notarial acts may take acknowledgments, at
1. Acknowledgments. Any commissioned any place, of the following persons and their depen-
officer, excluding warrant officers, on active duty in dents: (a) U.S. Armed Forces members, (b) civilian
the U.S. Armed Forces may take acknowledgments of: employees of the U.S. Armed Forces, and (c) U.S.
(a) U.S. Armed Forces members, and their spouses merchant seamen.
and dependents, at any place, (b) merchant seamen
outside the limits of the 48 contiguous States and the 2. Oaths and sworn instruments. Any
District of Columbia, and (c) others outside said limits commissioned officer on active duty in the U.S. Armed
by permission, assignment, or direction of any Forces may administer oaths or affidavits, at any place,
department or official of the U.S. Government, in for the following persons and their dependents: (a)
connection with any activity pertaining to the persons serving in or with the U.S. Armed Forces, and
prosecution of any war in which the United States is (b) civilian employees of the U.S. Armed Forces.
then engaged.
3. Seal. Not required. Use format in A-9-a or A-
2. Oaths and sworn instruments. Same as for 9-b.
acknowledgments except there is no provision for
officers to take oaths or sworn statements of spouses or MINNESOTA Enacted Uniform Law on Notarial
dependents. Acts as Minn. Stat. Ann. §§ 358.41 -.50 (West 1991).

3. Seal. Not required. Use format in A-9-a or A- 1. Acknowledgments. Any commissioned officer
9-b. on active duty in the U.S. Armed Forces may take
acknowledgments of any person, at any place, pursuant
MASSACHUSETTS Mass. Ann. Laws ch. 222, § 11 to section 0902.
(West 1988 & Supp. 1991-92); Mass. Ann. Laws.
Spec. L. 35:18 (Law. Co-op 1979). 2. Oaths and sworn instruments. Same as for
acknowledgments.
1. Acknowledgments. Any commissioned officer,
excluding warrant officers, on active duty in the U.S. 3. Seal. Not required. Use format in A-9-a or A-
Armed Forces may take acknowledgments, at any 9-b.
place, of persons serving in or with the U.S. Armed
Forces and their dependents. Acknowledgements of MISSISSIPPI Miss. Code Ann. §§ 25-33-1 to -23, 89-
U.S. Armed Forces members or their dependents must 3-5 (1972).
include the member's Social Security number.
1. Acknowledgments. Any commissioned
2. Oaths and sworn instruments. Same as for officer, excluding warrant officers, on active
acknowledgments except there is no provision for duty in the U.S. Armed Forces may take
officers to take oaths or sworn instruments of acknowledgments of: (a) U.S. Armed Forces members
dependents. Sworn instruments are limited to af- and their spouses at any place, (b) merchant seamen
fidavits and depositions. outside the limits of the U.S., and (c) others outside
such limits by permission, assignment, or direction of
3. Seal. Not required. Use format in A-9-a or A- any department or official of the U.S. Government, in
9-b. connection with any activity pertaining to the
prosecution of any war in which the United States is
MICHIGAN Mich. Stat. Ann § 27A.1440 (Callaghan then engaged.
1986); enacted Uniform Recognition of
Acknowledgments Act as Mich. Stat. Ann. §§ 2. Oaths and sworn instruments. Same as for
26.607(1)-(10) (Callaghan 1970). acknowledgments.

1. Acknowledgments. Any commissioned officer 3. Seal. Not required. Use format in A-9-a or A-
on active duty in the U.S. Armed Forces and others 9-b.
authorized by regulation of the U.S. Armed Forces to

9-11
MISSOURI Mo. Ann. Stat. § 442.160 (1986 & Supp.
1992); Mo. Ann. Stat. § 492.070 (1949 & Supp. 1992). 3. Seal. Not required. Use format in A-9-a or A-
9-b.
1. Acknowledgments. Any commissioned
officer, excluding warrant officers, on active duty in NEVADA Nev. Rev. Stat. Ann. § 111.305 (Michie
the U.S. Armed Forces may take acknowledgments for 1986).
active duty U.S. Armed Forces members and their
spouses, when joint or separate acknowledgment to the 1. Acknowledgments. Any commissioned
same instrument is required. officer, excluding warrant officers, on active duty in
the U.S. Armed Forces may take acknowledgments, at
2. Oaths and sworn instruments. Same as for any place, of any person serving in or with the U.S.
acknowledgments except there is no provision for Armed Forces, or any person whose duties require his
officers to take oaths or sworn statements of spouses. or her presence with the U.S. Armed Forces.

3. Seal. Not required. Use format in A-9-a or A- 2. Oaths and sworn instruments. Same as for
9-b. acknowledgments.

MONTANA Mont. Code Ann. §§ 1-5-105, 1-5-203 3. Seal. Not required. Use format in A-9-a or A-
(1991). 9-b.

1. Acknowledgments. Any commissioned officer, NEW HAMPSHIRE Enacted Uniform Ac-

excluding warrant officers, on active duty in the U.S. knowledgments Act as N.H. Rev. Stat. Ann. § 456:1-
Armed Forces may take acknowledgments of: (a) U.S. :15 (1983) and Uniform Recognition of Ack-
Armed Forces members, (b) merchant seamen outside nowledgments Act as N.H. Rev. Stat. § 456-A:1 to -:9
the limits of the continental United States, excluding (1983).
Alaska, and (c) others outside the limits of the United
States by permission, assignment, or direction of any 1. Acknowledgments. Any commissioned
department or official of the U.S. Government for any officer, excluding warrant officers, on active duty in
activity pertaining to the prosecution of any war in the U.S. Armed Forces and others authorized by
which the United States is then engaged. regulation of the Armed Forces to perform notarial acts
may take acknowledgments, outside the State, of the
2. Oaths and sworn instruments. Same as for following persons and their dependents: (a) U.S. mer-
acknowledgments. chant seaman, (b) U.S. Armed Forces members, and
(c) others serving with or accompanying the U.S.
3. Seal. Not required. Use format in A-9-a or A- Armed Forces.
9-b.
2. Oaths and sworn instruments. Same as for
NEBRASKA Enacted Uniform Recognition of acknowledgments.
Acknowledgments Act as Neb. Rev. Stat. §§ 64-201,
64-206, 76-227 (1986). 3. Seal. Not required. Use format in A-9-a or A-
9-b.
1. Acknowledgments. Any commissioned officer
on active duty in the U.S. Armed Forces and others NEW JERSEY N.J. Stat. Ann. § 38:23A-1 (West
authorized by regulation of the U.S. Armed Forces to 1968).
perform notarial acts may take acknowledgments, at
any place, of the following persons and their 1. Acknowledgments. Any commissioned officer
dependents: (a) U.S. merchant seamen, (b) U.S. in the U.S. Armed Forces may take acknowledgments
Armed Forces members, and (c) others serving with or of: (a) U.S. Armed Forces members and their spouses
accompanying the U.S. Armed Forces. at any place, (b) merchant seamen outside the limits of
the 48 contiguous States and the District of Columbia,
2. Oaths and sworn instruments. Same as for and (c) others outside said limits by permission,
acknowledgments. assignment, or direction of any department or official

9-12
of the U.S. Government, in connection with any
activity pertaining to the prosecution of any war in NORTH CAROLINA N.C. Gen. Stat. § 47-2 (1991).
which the United States Government is then engaged,
or in time of emergency. 1. Acknowledgments. Any commissioned officer
on active duty in the U.S. Armed Forces may take
2. Oaths and sworn instruments. Same as for acknowledgments, at any place, of any person serving
acknowledgments. in or accompanying the U.S. Armed Forces, or their
spouse.
3. Seal. Not required. Use format in A-9-a or A-
9-b. 2. Oaths and sworn instruments. Same as for
acknowledgments.
NEW MEXICO N.M. Stat. Ann. § 14-13-7 (1988).
3. Seal. Not required. Use format in A-9-a or A-
1. Acknowledgments. Any commissioned officer, 9-b.
excluding warrant officers, on active duty in the U.S.
Armed Forces may take acknowledgments of: (a) U.S. NORTH DAKOTA Enacted Uniform Recognition of
Armed Forces members and their spouses at any place, Acknowledgments Act as N.D. Cent. Code Ann. §§
(b) merchant seamen outside the limits of the 50 States 47-19-14.1, 14.2, 14.6 (1978 & Supp. 1991).
and the District of Columbia, and (c) others outside
said limits by permission, assignment, or direction of 1. Acknowledgments. Any commissioned or
any department or official of the U.S. Government, in noncommissioned officer on active duty in the U.S.
connection with any activity pertaining to the pros- Armed Forces and others authorized by regulation of
ecution of any war in which the United States is then the U.S. Armed Forces to perform notarial acts may
engaged. take acknowledgments, at any place, of the following
persons and their dependents: (a) U.S. merchant
2. Oaths and sworn instruments. Same as for seamen, (b) U.S. Armed Forces members, and (c)
acknowledgments. persons serving with or accompanying the U.S. Armed
Forces.
3. Seal. Not required. Use format in A-9-a or A-
9-b. 2. Oaths and sworn instruments. Same as for
acknowledgments.
NEW YORK N.Y. Civ. Prac. L. & R. § 2309
(McKinney 1991); N.Y. Real Prop. Law §§ 300, 312 3. Seal. Not required. Use format in A-9-a or A-
(McKinney 1989). 9-b.

1. Acknowledgments. Any commissioned officer, OHIO Enacted Uniform Recognition of

excluding warrant officers, on active duty in the U.S. Acknowledgments Act as Ohio Rev. Code Ann. §§
Armed Forces may take acknowledgments, for 147.51-.55 (Anderson 1990).
conveyances of real property located in this State, at
any place, of persons serving in or with the U.S. Arm- 1. Acknowledgments. Any commissioned officer
ed Forces, their dependents, and any person attached to on active duty in the U.S. Armed Forces and others
or accompanying the U.S. Armed Forces. authorized by regulation of the U.S. Armed Forces to
Acknowledgments of U.S. Armed Forces members or perform notarial acts may take acknowledgments,
their dependents must include the member's Social outside the State, of the following persons and their
Security number. dependents: (a) U.S. merchant seamen, (b) U.S.
Armed Forces members, and (c) others serving with,
2. Oaths and sworn instruments. Same as for employed by, or accompanying the U.S. Armed Forces
acknowledgments. outside the United States.

3. Seal. Not required. Use format in A-9-a or A- 2. Oaths and sworn instruments. Same as for
9-b. acknowledgments.

9-13
 others outside said limits by permission, assignment, or
3. Seal. Not required. Use format in A-9-a or A- direction of any department or official of the U.S.
9-b. Government in connection with any activity pertaining
to the prosecution of any war in which the United
OKLAHOMA Okla. Stat. Ann. tit. 72, § 50.1-.4 States is then engaged.
(West 1988); enacted Uniform Law on Notarial Acts
as Okla. Stat. Ann. tit. 49, 2. Oaths and sworn instruments. Same as for
§§ 111-121 (West 1988). acknowledgments.

1. Acknowledgments. Any commissioned officer 3. Seal. Not required. Use format in A-9-a or A-
on active duty in the U.S. Armed Forces may take 9-b.
acknowledgments of any person, at any place, pursuant
to section 0902. In addition, any person of the rank of PUERTO RICO P.R. Laws Ann. tit. 25, §§ 2803,
sergeant, petty officer, or higher may take ac- 2901-2907 (1979 & Supp. 1988).
knowledgements of U.S. Armed Forces members and
their spouses if joint or separate acknowledgment is No local statutory authority for any U.S. Armed
required, for deeds conveying real estate within the Forces member to take acknowledgments, oaths, or
State, powers of attorney, other public instruments sworn instruments. See section 0902 for Federal
requiring acknowledgment or the taking of an oath, or authority to perform these functions.
for any other purpose.
RHODE ISLAND R.I. Gen. Laws § 34-12-5 to -8
2. Oaths and sworn instruments. Same as for (1956).
acknowledgments.
1. Acknowledgments. Any commissioned officer,
3. Seal. Not required. Use format in A-9-a or A- excluding warrant officers, on active duty in the U.S.
9-b. Armed Forces may take acknowledgments, at any
place, of any person outside the limits of the United
OREGON Enacted Uniform Law on Notarial Acts as States and of U.S. Armed Forces members and their
Or. Rev. Stat. §§ 194.505, 545, 575 (1991). dependents.

1. Acknowledgments. Any commissioned officer 2. Oaths and sworn instruments. Same as for
on active duty in the U.S. Armed Forces may take acknowledgments.
acknowledgments of any person, at any place, pursuant
to section 0902. 3. Seal. Not required. Use format in A-9-a or A-
9-b.
2. Oaths and sworn instruments. Same as for
acknowledgments. SOUTH CAROLINA Enacted Uniform Recognition
of Acknowledgments Act as S.C. Code Ann. §§ 26-3-
3. Seal. Not required. Use format in A-9-a or A- 20, -30, -50, 70 (Law. Co-op. 1991 & Supp. 1993).
9-b.
1. Acknowledgments. Any commissioned officer
PENNSYLVANIA Enacted Uniform Acknow- on active duty in the U.S. Armed Forces and others
ledgment Act as Pa. Stat. Ann. tit. 21 § 291.1-.10a authorized by regulation of the Armed Forces to
(Purdon 1955 & Supp. 1991); Pa. Stat. Ann. tit. 57 § perform notarial acts may take acknowledgements, at
54d (Purdon 1964). any place, of the following persons and their depen-
dents: (a) U.S. merchant seamen, (b) U.S. Armed
1. Acknowledgments. Any commissioned officer, Forces members, and (c) others serving with or
excluding warrant officers, on active duty in the U.S. accompanying the U.S. Armed Forces.
Armed Forces may take acknowledgments of: (a) U.S.
Armed Forces members and their spouses at any place; 2. Oaths and sworn instruments. Same as for
(b) merchant seamen outside the limits of the 48 acknowledgments.
contiguous States and the District of Columbia, and (c)

9-14
 3. Seal. Not required. Use format in A-9-a or A-
9-b. 3. Seal. Not required. Use format in
A-9-a or A-9-b.
SOUTH DAKOTA S.D. Codified Laws Ann. §§ 18-
4-6 to -9, 18-3-2 to -4 (1987); enacted Uniform UTAH Utah Code Ann. § 57-2a-3 to 7 (Supp. 1990).
Acknowledgment Act as S.D. Codified Laws §§ 18-5-
1 to -18 (1987). 1. Acknowledgments. Any commissioned officer
1. Acknowledgments. Any commissioned on active duty in the U.S. Armed Forces and others
officer, excluding warrant officers, in the U.S. Armed authorized by regulation of the U.S. Armed Forces to
Forces may take acknowledgments, at any place, of perform notarial acts may take acknowledgments, at
any person serving in or with the U.S. Armed Forces. any place, of the following persons and their
dependents: (a) U.S. merchant seamen, (b) U.S.
2. Oaths and sworn instruments. Any Armed Forces members, and (c) others serving with or
commissioned officer in the U.S. Armed Forces may accompanying the U.S. Armed Forces.
take oaths and sworn instruments of: (a) U.S. Armed
Forces members, including the Coast Guard, (b) 2. Oaths and sworn instruments. Same as for
civilians serving with, employed by, or accompanying acknowledgments.
the U.S. Armed Forces outside the United States, and
(c) officers of the Public Health Service detailed for 3. Seal. Not required. Use format in A-9-a or A-
duty with the U.S. Armed Forces. 9-b.

3. Seal. Not required. Use format in A-9-a or A- VERMONT Vt. Stat. Ann. tit. 12, § 5855 (1973).
9-b.
1. Acknowledgments. Any commissioned officer
TENNESSEE Tenn. Code Ann. §§ 58-1-605 to -607 with the rank of lieutenant or higher in the Navy, or
(1989). with equivalent rank in the Marine Corps, may take
acknowledgments, at any place, of any person.
1. Acknowledgments. Any commissioned officer,
excluding warrant officers, on active duty in the U.S. 2. Oaths and sworn instruments. Same as for
Armed Forces may take acknowledgments, at any acknowledgments.
place, of U.S. Armed Forces members on active duty,
and their spouses if they are accompanying the 3. Seal. Not required. Use format in A-9-a or A-
members. 9-b.

2. Oaths and sworn instruments. Same as for VIRGIN ISLANDS V.I. Code Ann. tit. 5, § 694
acknowledgments. (1967); V.I. Code Ann. tit. 28, §§ 82-89 (Supp. 1992).

3. Seal. Not required. Use format in A-9-a or A- 1. Acknowledgments. Any commissioned officer
9-b. on active duty in the U.S. Armed Forces and others
authorized by regulation of the U.S. Armed Forces to
TEXAS Tex. Rev. Civ. Stat. Ann. art. 26 (Vernon perform notarial acts may take acknowledgments,
1969 & Supp. 1993); Tex. Civ. Prac. & Rem. Code outside the Virgin Islands, for the following persons
Ann. §§ 121.001(d), 121.007 (Vernon 1986). and their dependents: (a) U.S. merchant seamen, (b)
U.S. Armed Forces members, and (c) others serving
1. Acknowledgments. Any commissioned officer with or accompanying the U.S. Armed Forces.
in the U.S. Armed Forces may take acknowledgments,
at any place, of U.S. Armed Forces members, and their 2. Oaths and sworn instruments. Same as for
spouses. acknowledgments.

2. Oaths and sworn instruments. Same as for 3. Seal. Not required. Use format in A-9-a or A-
acknowledgments. 9-b.

9-15
 Armed Forces members, and (c) others serving with or
VIRGINIA Va. Code Ann. § 55-115 (1986); enacted accompanying the U.S. Armed Forces.
Uniform Recognition of Acknowledgments Act as Va.
Code Ann. § 55-118.1-3 (1986). 2. Oaths and sworn instruments. Same as for
acknowledgments.
1. Acknowledgments. Any commissioned officer
on active duty in the U.S. Armed Forces and others 3. Seal. Not required. Use format in A-9-a or
authorized by regulation of the U.S. Armed Forces to A-9-b.
perform notarial acts may take acknowledgments, at
any place, of the following persons and their WISCONSIN Wis. Stat. Ann. § 887.01 (West 1966 &
dependents: (a) U.S. merchant seamen, (b) U.S. Supp. 1988); enacted Uniform Law on Notarial Acts as
Armed Forces members, (c) others serving with or Wis. Stat. Ann. § 706.07 (West Supp. 1988).
accompanying the U.S. Armed Forces.
1. Acknowledgments. Any commissioned officer
2. Oaths and sworn instruments. Same as for on active duty in the U.S. Armed
acknowledgments. Forces may take acknowledgments for any person, at
any place, pursuant to section 0902.
3. Seal. Not required. Use format in A-9-a or A-
9-b. 2. Oaths and sworn instruments. Same as for
acknowledgments.
WASHINGTON Wash. Rev. Code Ann. § 73.20.010
(1982). 3. Seal. Not required. Use format in A-9-a or A-
9-b.
1. Acknowledgments. Any commissioned officer,
excluding warrant officers, on active duty in the U.S. WYOMING Wyo. Stat. § 19-1-103 (1977).
Armed Forces may take acknowledgments of: (a) U.S.
Armed Forces members, (b) merchant seamen serving 1. Acknowledgments. Any commissioned
outside the limits of the 48 contiguous States and the officer, excluding warrant officers, on active duty in
District of Columbia, and (c) others outside said limits the U.S. Armed Forces may take acknowledgments, at
by permission, assignment, or direction of any any place, of persons serving in or with the U.S.
department or official of the U.S. Government, in Armed Forces, and their dependents.
connection with any activity pertaining to the prosecu-
tion of any war in which the United States is then en- 2. Oaths and sworn instruments. There is no
gaged. provision for officers to take oaths or sworn
instruments.
2. Oaths and sworn instruments. Same as for
acknowledgments. 3. Seal. Not required. Use format in A-9-a or A-9-b.

3. Seal. Not required. Use format in A-9-a or A-

9-b.

WEST VIRGINIA W. Va. Code § 39-1-4a (1982);

W. Va. Code § 57-5-9 (1966); enacted Uniform
Recognition of Acknowledgments Act as W. Va. Code
§ 39-1A-1 to -9 (1982).

1. Acknowledgments. Any commissioned officer

on active duty in the U.S. Armed Forces and others
authorized by regulation of the U.S. Armed Forces to
perform notarial acts may take acknowledgments, at
any place, of the following persons and their
dependents: (a) U.S. merchant seamen, (b) U.S.

9-16
 NOTARIAL FORMATS

The following are formats for acknowledgments and for sworn instruments, including general instructions. These
formats are legally sufficient in most jurisdictions. The provisions of the jurisdiction in which the instrument will be
used should be consulted before using the forms. A summary of each State's provisions is listed alphabetically in
section 0910. Additional facts in the formats, not required by a specific jurisdiction, do not affect the validity of the
acknowledgments or sworn instruments.

9-17
 FORMAT FOR SIGNATURE BLOCK, WITNESSES, AND ACKNOWLEDGMENT CERTIFICATE

[Signature]
WITNESS the following signature (and seal) this_____day of________ _, 20___.

(Signature of person whose ["(SEAL)" if acknowledgment is to be taken) necessary]

[Witness*]
Signed and delivered in the presence of:

(signature of witness)
(name of witness)
(SSN, grade, and branch of service)
(permanent home address)

(signature of witness)
(name of witness)
(SSN, grade, and branch of service)
(permanent home address)

(signature of witness)
(name of witness)
(SSN, grade, and branch of service)
(permanent home address)

[Venue]
With the United States Armed Forces
At (location**)

[Acknowledgement]
I, __________________________, the undersigned officer, do hereby certify that on this __day
of__________, 19___, before me, personally appeared (name of person whose signature is being
acknowledged), (Social Security number), whose home address is______ ____________________, and
who is known to me to be (status***), and to be the identical person who is described in, whose name is
subscribed to, and who signed and executed the foregoing instrument, and having first made known to
him/her the contents thereof, he/she personally acknowledged to me that he/she signed the same, on the
date it bears, as his/her true, free, and voluntary act and deed, for uses, purposes, and considerations
therein set forth. I do further certify that I am at the date of this certificate a commissioned officer of the
grade, branch of service, and organization stated below in the active service of the United States Armed
Forces, that this certificate is executed by me in that capacity, and by statute no seal is required.

(signature of officer)
(name of officer)
(SSN, grade, branch of service)
(command or organization)
(permanent home address)

Authority: (authority****)
A-9-a(1)
 * If signature before witnesses is required for the document, insert the identifying information for each

witness here.

** Insert country, State, and county in which instrument is acknowledged. If military considerations

preclude disclosure of exact place of execution, insert "In a Foreign Country" or "In a possession of the

U.S. outside the continental U.S."

*** "A U.S. Armed Forces member on active duty," "the spouse/dependent of a U.S. Armed Forces

member," "a person serving with the U.S. Armed Forces," or other appropriate description of status.

**** Indicates one or more of the following as appropriate: "10 U.S.C. § 1044a and JAG Manual §

0902" (for general Federal authority to notarize documents); "10 U.S.C. § 936 (Article 136, UCMJ), and

JAG Manual § 0902" (for Federal authority to administer oaths for purposes of military administration,

including military justice); or "____________________" (indicate State statutory authority from JAG

Manual § 0910).

A-9-a(2)
 SUGGESTED FORMAT FOR A SWORN OR AFFIRMED INSTRUMENT

[Venue]
With the United States Armed Forces
At (location*)

I, (name of person executing the sworn instrument), do solemnly swear (affirm) that . . . (This part of
the instrument contains the substance of the affidavit, deposition, or other sworn statement.)

(Signature of person executing the sworn instrument)

[Jurat]
I, __________________________, the undersigned officer, do hereby certify that the foregoing
instrument was subscribed and sworn to (affirmed) before me this___day of__________, 19___, by
(name of person making statement), (Social Security number), whose permanent home address
is____________________________, and who is known to me to be (status**). And I do further certify
that I am at the date of this certificate a commissioned officer of the grade, branch of service, and
organization stated below in the active service of the United States Armed Forces, that this certificate is
executed by me in that capacity, and by statute no seal is required.

(signature of officer
(name of officer)
(SSN, grade, and branch of service)
(command or organization)
(permanent home address)

Authority: (authority***)

A-9-b(1)
____________

*Insert Country, State, and County in which instrument is acknowledged. If military

considerations preclude disclosure of exact place of execution, insert "In a Foreign Country" or "In a

possession of the U.S. outside of the continental U.S."

** "A U.S. Armed Forces member on active duty," "the spouse/dependent of a U.S. Armed

Forces member," "a person serving with the U.S. Armed Forces," or other appropriate description of

status.

*** Indicate one or more of the following as appropriate: "10 U.S.C. §1044a and JAG Manual §

0902" (for general Federal authority to notarize documents); "10 U.S.C. § 936 (Article 136, UCMJ), and

JAG Manual § 0902" (for Federal authority to administer oaths for purposes of military administration,

including Military justice); or "____________________" (indicate State statutory authority from JAG

Manual § 0910).

A-9-b(2)
 CHAPTER X
INTERNATIONAL LAW

1007 FOREIGN LITIGATION

1001 SCOPE
a. Department of Justice
1002 NAVAL OPERATIONS b. Reports to the Judge
OVERSEAS Advocate General

a. General 1008 IMMIGRATION AND

b. Areas of frequent inquiry NATURALIZATION

1003 INTERNATIONAL 1009 STATUS OF FORCES

AGREEMENTS AGREEMENTS

a. General a. General
b. International agreement defined b. Foreign personnel in the
c. Negotiation of agreements United State
d. Additional guidance
1010 FOREIGN CRIMINAL
1004 SECURITY ASSISTANCE JURISDICTION

a. General a. General
b. Statutory requirements b. Policy
c. What constitutes security c. Exercise of jurisdiction
assistance d. Waiver of jurisdiction
d. Local requests e. Custody
f. Fees
1005 POLITICAL ASYLUM AND g. Solatia
TEMPORARY REFUGE h. Official duty
i. Reporting requirements
a. Political asylum
b. Temporary refuge 1011 ENFORCEMENT OF U.S.
c. Public announcement LAW OVERSEAS
d. Reporting requirements
e. Custody 1012 PROPERTY CAPTURED FROM
f. References THE ENEMY DURING ARMED
CONFLICT
1006 FOREIGN ENVIRONMENTAL
LAW 1013 NONCOMBATANT
EVACUATION
a. Installations PROCEDURES (NEO)
b. Vessels, aircraft, and transient
units 1014 ACCEPTANCE OF GIFTS
c. Access by foreign authorities FROM FOREIGN
GOVERNMENTS

10-1
 CHAPTER X

INTERNATIONAL LAW

1001 SCOPE

The purpose of this chapter is to highlight major authorities to search any portion of a Navy ship. See
international law issues likely to arise in the context of U.S. Navy Regulations, 1990, Article 0828.
military operations overseas. This chapter does not
reprint detailed material readily available elsewhere. It (3) Protection of persons and property at sea.
guides the reader to those sources where necessary. See NWP -1-14M/MCWP 5-2.1 , chapter 3.

1002 NAVAL OPERATIONS OVERSEAS (4) Quarantine rules in foreign ports and
airports. Commanders and masters will comply with
a. General. NWP-1-14M/MCWP 5-2.1 , The foreign quarantine regulations and may certify such
Commander's Handbook on the Law of Naval compliance to foreign authorities. Commanders will
Operations, sets out the fundamental principles of law not allow foreign authorities to conduct on-board
governing operations by the U.S. Naval Service. It is inspections. See SECNAVINST 6210.2A.
geared to the operator in a clear, concise format. It
provides an overview of the law of the sea, including (5) Sovereign immunity. See NWP 1-
jurisdiction of nations over various parts of the world's 14M/MCWP5-2.1, chapter 2.
oceans; legal status and navigational rights of
warships, other government vessels, and military (6) Pollution and environmental concerns. See
aircraft; protection of persons and property at sea; and U.S. Navy Regulations, 1990, Article 1163, and
the law of naval warfare. OPNAVINST 5090.1B CH-3 17 Oct 2002. See also
section 1006, below.
b. Areas of frequent inquiry
(7) U.S.-USSR incidents at sea. See
(1) Presence of nuclear weapons. It is general OPNAVINST C5711.94; NWP 1-14M/MCWP5-2.1,
U.S. policy not to deploy nuclear weapons aboard section 2.8.
surface ships, attack submarines, and naval aircraft.
However, under the U.S. Government NCND (neither (8) Humanitarian and civic assistance. See 10
confirm nor deny) policy, members of the Department U.S.C. §§ 401, 2547, and 2805(a)(2), and Annual
of the Navy and its civilian employees shall not discuss DOD Authorization and Appropriation Acts. See also;
the presence or absence of nuclear weapons at any DoD Directive 3025.15, Military Assistance to Civil
general or specific location, including aboard any U.S. Authorities; DoD Directive 3025.12, Military
military station, ship, submarine, vehicle or aircraft. Assistance for Civil Disturbances and DoD Directive
Detailed instructions on the proper response to 5525.5, DoD Cooperation with Civilian Law
inquiries for information or assurances with respect to Enforcement Officials.
the presence or absence of nuclear weapons or
components can be found in OPNAVINST 5721.1E. 1003 INTERNATIONAL AGREEMENTS
The Department of the Navy's nuclear weapons clas-
sification system is established in OPNAVINST a. General. DODDIR 5530.3 of 11 June 1987
S5513.9B. Information concerning the capability of a lays out procedures for the negotiation and conclusion
unit to deliver, handle, or maintain nuclear weapons is of international agreements. It provides for centralized
unclassified. Information concerning the actual control. No DOD member or civilian employee may
presence or absence of nuclear weapons in relation to a conclude an international agreement except in
specific location, however, is classified. accordance with this directive and JCS/service
implementing directives.
(2) Search of vessel by foreign authorities.
Commanders and masters will not permit foreign b. International agreement defined. An

10-2
international agreement is any oral or written from the Secretary of the Navy, the Assistant Secretary
agreement with a foreign government (including of the Navy (Research, Development and Acquisition),
agencies, instrumentalities, or political subdivisions) or the Chief of Naval Operations, the Chief of Naval
with an international organization that: Research, or the Commandant of the Marine Corps, as
appropriate. For matters that concern operational
(1) Is agreed to by personnel of any DOD command of joint forces, such authorization should be
component; sought from the Chairman of the Joint Chiefs of Staff.
Negotiations toward the formation of any international
(2) Signifies the intention of its parties to be agreement are not permitted pending receipt of such
bound; and authorization. Once authorized to negotiate, the
cognizant representative of the United States must not
(3) Is denominated as an international deviate significantly from the letter of the authoriza-
agreement or any other name connoting a similar legal tion.
consequence.
(1) Request for authority to negotiate. A
(4) The following are not considered to be request for authority to negotiate an international
international agreements: agreement must contain:

(a) Contracts made under the Federal (a) A draft text or outline of the proposed
Acquisition Regulations (FAR); agreement (or an explanation why such a draft cannot
be provided);
(b) Foreign Military Sales Credit Agree-
ments; (b) A legal memorandum reciting the
authority to carry out each obligation to be assumed by
(c) Foreign Military Sales Letters of Offer the United States and an explanation of other legal
and Acceptance and Letters of Intent; considerations;

(d) NATO Standardization Agreements (c) A fiscal memorandum specifying the

(STANAGS). While most STANAGS are not estimated cost and appropriations authority or source
international agreements, some STANAGS, of each obligation assumed by the Department of the
particularly in the logistics area, are legally binding Navy or other DOD component; and
and considered agreements;
(d) A Technology Assessment Control Plan
(e) Real estate leases under 10 U.S.C. §§ (see enclosure (7) to DODDIR 5530.3 of 18 February
2667 and 2675, and 22 U.S.C. § 2796; 1991), which, inter alia, requires the proponent of the
agreement to:
(f) Agreements solely to establish admin-
istrative procedures; and (i) itemize all sensitive U.S. classified
and unclassified property and data to be transferred
(g) Acquisitions or orders pursuant to under the proposed agreement;
cross-servicing agreements made under the authority
of Acquisition and Cross-Servicing Agreements with (ii) assess the risk to U.S. national
NATO and Other Allies (10 U.S.C. §§ 2341-2350). security through such transfer; and

c. Negotiation of agreements. The United States (iii) identify the foreign technologies or
concludes international agreements in many forms. other benefits that the United States is likely to acquire
Members of the U.S. Navy and Marine Corps may through the proposed agreement.
conclude these agreements only when specifically
authorized. For matters under the cognizance of the (2) Conclusion of the agreement. Should
Department of the Navy, authorization to negotiate and negotiations lead to an acceptable draft, the U.S.
conclude an international agreement should be sought representative must ensure that:

10-3
 a. General. Security assistance enhances U.S.
(a) The proposed U.S. signatory holds national security by providing defense articles,
proper authority to conclude the agreement. This services, training, and other assistance by grant, credit,
authority is obtained in the same manner as the or cash sales to friendly foreign nations. Authority for
authority to negotiate. these programs is found in the Foreign Assistance Act
and the Arms Export Control Act. Basic guidance is
(b) The requirements of prior consultation found in the Security Assistance Management Manual,
with the Department of State in accordance with the DOD 5105.38-M of 1 October 1988, the DOD Foreign
Case-Zablocki Act, 1 U.S.C. § 112b, have been met Military Sales Financial Manual, DOD Directive
for the particular agreement. The Judge Advocate 7290.3-M, and the Joint Security Assistance Training
General (Code 10) has historically performed this (JSAT) Regulation (AR 12-15/SECNAVINST
function because JAG has, on file, permission from the 4950.4H/AFR 50-29).
Department of State to conclude certain classes of
agreements without prior consultation. b. Statutory requirements. The more important
statutory requirements regarding security assistance
(c) If a foreign language text is added, the include:
agreement must specify either that the English text
governs or that both texts are equally authentic. In the (1) Transfers of defense articles or services
latter case, the agreement must include certification must be to an eligible country or designated
that the texts conform and have the same meaning in international organization.
all substantive respects. Translators must be
designated as qualified, consistent with local practice, (2) Defense articles or services must be properly
by the official authorized to negotiate and conclude the utilized by the purchaser. This means, for example,
agreement or by an appropriate official of the State that such articles or services must be used by the
Department. purchaser's defensive forces for defensive purposes
only.
(3) Forwarding of agreement. Within 10 days
of conclusion, the U.S. Navy or Marine Corps (3) Withdrawal from U.S. stocks requires
signatory must forward five certified copies of the proper authorization.
agreement and a background statement to the Judge
Advocate General. If an agreement is concluded (4) A purchasing country must pay full value,
pursuant to a delegation of authority from the including applicable costs and surcharges.
Chairman, Joint Chiefs of Staff, the signatory must
forward two certified copies of the agreement and a (5) The purchaser must agree not to transfer
background statement to the General Counsel, defense articles received from the United States to any
Department of Defense, and one copy to the Office of third country without U.S. permission.
the Secretary, Joint Chiefs of Staff (plus additional
copies to others with an interest in the subject of the c. What constitutes security assistance. The DOD
agreement). Dictionary of Military and Associated Terms (JCS Pub
1-02 of 12 Apr 2001 ) defines "security assistance" as
d. Additional guidance. See JCS MOPs 21 and groups of programs authorized by the Foreign
43, CJCSI 2300.01A, SECNAVINST 5710.25, Assistance Act of 1961 as amended by the Arms
OPNAVINST 5710.24, OPNAVINST 5710.25, Case- Export Control Act of 1976, as amended, or other
Zablocki Act implementation (22 CFR Ch. 1, sub. S, related statutes by which the United States provides
Part 181), and DIA Regulation 60-28 (concerning defense articles, by grant, loan, credit, or cash sales in
intelligence agreements). Questions on international furtherance of national policies and objectives.
agreements may be directed to the Judge Advocate
General. (1) There is a fine line between reimbursable
security assistance and the authorized extension of
1004 SECURITY ASSISTANCE limited assistance as a goodwill gesture or international
courtesy in connection with combined operations.

10-4
Cases are factually dependent and should, if granted to a foreign person. It affords protection from
practicable, be discussed with a Security Assistance reasonable fear of persecution on account of race,
Organization (SAO) at the local diplomatic mission or religion, nationality, political opinion, or membership
with an international lawyer with security assistance in a particular social group.
training. As a very general proposition, it is improper
to extend any defense article or service (broadly (1) No person seeking political asylum should
defined) on a non-reimbursable basis unless there is: be surrendered to foreign authorities except at the
(1) a specific statutory authorization for the provision direction of the Secretary of the Navy.
of assistance, for example, 10 U.S.C. § 7227,
authorizes the non-reimbursable provision of routine (2) Since political asylum is a matter under the
port and airport line services on conditions of cognizance of the State Department, any person
reciprocity documented by written agreement; or (2) requesting asylum should be advised to contact the
the assistance is being provided to advance a clear and nearest U.S. Embassy or Consulate; however, no
immediate U.S. mission interest, for example, the non- person shall be expelled from any U.S. military
reimbursable transport of members of a foreign armed installation or vessel if there is an imminent threat to
force aboard a U.S. vessel or aircraft to a remote site in safety. In such cases, persons seeking political asylum
connection with a combined exercise. should be regarded as temporary refugees pending
referral to higher authority.
(2) Even if a statutory or "mutual benefit" basis
can be found for extending assistance, there are b. Temporary refuge. Temporary refuge is
country-specific limitations on the provision of humanitarian protection to secure the safety of a
assistance derived from the Foreign Assistance Act, person seeking refuge against imminent danger, such
and annual authorization and appropriation acts, which as pursuit by a mob. It does not normally include
negate an otherwise valid legal justification for persons fleeing from lawful pursuit by the law
providing assistance to a foreign government. enforcement authorities of a foreign country.
Temporary refuge may be granted by the senior officer
(3) The foregoing discussion applies to the present at a U.S. installation or on board a U.S. vessel.
authority of U.S. forces to provide assistance to a Once granted, temporary refuge will be terminated
foreign government. Similar restrictions prevent U.S. only at the direction of the Secretary of the Navy. Per-
forces from accepting logistical or other support from a sons whose temporary refuge is terminated will be
foreign government because of the fiscal prohibition surrendered only to authorities designated in the
against unauthorized augmentation of appropriations. message authorizing release.
Various statutes authorize the acceptance of certain
types of assistance such as reciprocal routine port and c. Public announcement. No public statement
airport services (10 U.S.C. § 7227), and financial or in- concerning political asylum or temporary refuge cases
kind host nation support (10 U.S.C. § 2608, 10 U.S.C. should be released without authorization by the
§ 2350g); however, implementing guidance issued by Assistant Secretary of Defense for Public Affairs.
DOD and the Navy should be consulted before any DODDIR 2000.11 of 3 March 1972 and
foreign assistance is accepted. SECNAVINST 5710.22B. In foreign territory, any
such announcements should also be coordinated with
d. Local requests. In case of doubt, commanding the U.S. Embassy.
officers should refer foreign requests for training,
purchase, lease or donation of equipment to the d. Reporting requirements. Upon receipt of a
Security Assistance Officer (SAO) of the local U.S. request for political asylum or temporary refuge on
diplomatic mission and up the chain of command. board a U.S. installation or vessel, the information
described below should be reported via OPREP-3
1005 POLITICAL ASYSLUM AND PINNACLE procedures (chapter 2, section II, of
TEMPORARY REFUGE OPNAVINST R3100.6F; see also MCO 5740.2E).
Initial reports should not be delayed pending further
a. Political asylum. Political asylum is sanctuary developments.
within U.S. territorial jurisdiction or on the high seas

10-5
 (1) Name and nationality of the person a. Installations provided by the U.S. or operated
requesting asylum (or temporary refuge). by
the U.S. At U.S. Navy operated facilities within
(2) Date, place of birth, and occupation. foreign territory, the Navy facility will comply with
Final Governing Standards (FGSs) as developed by the
(3) Description of any documentation in his Environmental Executive Agent for each country. (See
possession. https://www.denix.osd.mil/denix/DOD/Library/Intl/FG
S/final-gov-stds-DOD.html.) Where FGSs have not
(4) List of foreign authorities who are aware of been issued, shore activities will comply with the DoD
or will be notified of the request. Overseas Environmental Baseline Guidance Document
(OEBGD) (DOD Publication 4715.5-G of 15 March
(5) Circumstances surrounding the request. 2000), the host national substantive pollution control
laws of general applicability (as required by EO
(6) Exact location. If aboard a vessel or 12088), U.S. law with extraterritorial effect and
aircraft, give the estimated time of arrival at next port applicable treaties (including Status of Forces
or airport. Agreement (SOFA).. When capital improvements are
required at overseas installations to comply with FGSs
(7) Reason for requesting asylum or temporary or OEGBD and EO 12088, as applicable, funding
refuge. decisions should be based on a number of
considerations including the pertinent SOFA.
(8) Description of any criminal charges known
or alleged to be pending against the person requesting b. Installations provided by a foreign nation. Navy
asylum. Specifically indicate if any piracy at sea, air policy is that unless otherwise provided in the SOFA,
piracy, or hijacking is involved. the host nation is expected to fund environmental
compliance projects at facilities provided by the host
(9) Any Communist Party or other political nation. In some cases, host country provided facilities
party affiliation. Also list any government office now have been significantly modified by the U.S. to meet
held or previously occupied. operational requirements. When capital improvements
are required in these cases to meet the environmental
(10) If applicable, whether a field office of the standards of general applicability in the host country or
Immigration and Naturalization Service (INS) has been jurisdiction, the Navy may negotiate shared
notified and if arrangements have been made to contributions for such improvements. This negotiation
transfer the case to INS. may be done only after consultation with the U.S.
ambassador for that country.
(11) Any other pertinent information.
c. Vessels, aircraft, and transient units. Operations
e. Custody. Any request by foreign authorities for in areas subject to foreign jurisdiction will be
custody of a person seeking refuge should be reported governed by the environmental provisions contained
immediately to higher authority. Pending guidance in port visit clearances and/or in the SOFA or other
from higher authority, no action should be taken other international agreement with the host government. In
than informing the foreign authorities that the case has the absence of guidance in the port visit clearances or
been referred to higher authorities for instructions. applicable agreement, Navy ships should attempt to
abide by the corresponding requirement for U.S.
f. References. For additional information and navigable waters or ports, as delineated in
detailed guidance, see DODDIR 2000.11 of 3 March OPNAVISNT 5090.1B CH-3. In cases where
1972 and SECNAVINST 5710.22. See also NWP1- compliance with corresponding U.S. requirements is
14M/MCWP 5-2.1 , section 3.3. not feasible overseas, Navy ships should operate in a
manner consistent with environmental practices of
host nation warships
1006 FOREIGN ENVIRONMENTAL LAW
d. Requests for access by foreign authorities to

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ensure applicable environmental compliance. timely notice to the Attorney General of legal actions
Installation and regional commanders shall consult arising out of overseas naval operations. The
with the Environmental Executive Agent (EA) for the International Law Division of the Office of the Judge
host nation, or with the combatant commander where Advocate General maintains close liaison with the
no EA has been appointed, to pre-establish procedures Department of Justice, Office of Foreign Litigation.
for access by host nation officials. Procedures shall
comply with the applicable SOFA and established b. Reports to the Judge Advocate General. Any
practices implementing the SOFA. Installation foreign legal proceedings, including those involving
commanders shall comply with access procedures so nonappropriated-fund activities that arise out of U.S.
established. Where host nation officials request access naval operations overseas or are otherwise of
in addition to those established through the combatant substantial interest to the Department of the Navy
commander, the installation commander shall should be reported to the Judge Advocate General by
immediately notify the Navy component commander the most expeditious means, using message, telephone,
in theater, the environmental EA (if applicable) and or letter. This includes, but is not limited to, any
CNO (N4). Unless otherwise directed, the installation proceeding involving the United States as a party and
commander may permit access after completing arising out of naval operations; proceedings against
consultation with the environmental EA, component any person subject to military law or any Department
commander and CNO (N4) or three working days after of the Navy official or employee in connection with
providing notification, whichever is earlier. If access official duties; and proceedings where attachment of
is denied, the installation commander shall notify the U.S. funds or other property is sought. The report
same parties and shall ensure that the Chief of Mission should include as much of the following information as
with the U.S. ambassador to country has also been possible:
notified.
(1) Names of parties to the proceeding.
(1) Access by foreign officials to propulsion plant
spaces of nuclear powered ships, or to naval nuclear (2) Nature of the action.
propulsion information is governed by OPNAVINST
5510.155C, Classified Supplement to the Manual for (3) Name of the tribunal where the proceedings
Disclosure of Classified Military Information to have been brought.
Foreign Governments and International Organizations
(NOTAL), and is not authorized without approval by (4) Docket number.
CNO (N00N).
(5) Names and positions of persons served,
(2) Rules concerning U.S. vessels and aircraft are method of service, and dates.
more restrictive: on-board inspections by foreign
officials would be contrary to principles of sovereign (6) Explanation of U.S. Government's interest in
immunity. See SECNAVINST 6210.2A the proceeding.
OPNAVINST 5090.1B CH-3 and U.S. Navy
Regulations, 1990, Article 0828. (7) Deadline for pleadings or other response.

e. References. DODINST 4715.5, Management of (8) Nature of the principal defense, if known.
Environmental Compliance at Overseas Installations,
22 April 1996. OPNAVINST 5090.1B CH-3 Chapters (9) Status of any named party as a U.S.
18 & 19 of 17 October 2002. Government officer, employee, agent, contractor,
nonappropriated-fund activity employee, etc.

1007 FOREIGN LITIGATION (10) Nature of relief sought.

a. Department of Justice. The Department of (11) A recommendation as to qualified local

Justice has the primary responsibility for representing attorneys, English-speaking if possible, available for
the United States in all foreign litigation. This requires retention to defend the interests of the United States.

10-7
Normally, the names of such attorneys should be from exchanges) may also contain criminal jurisdictional
a list maintained by the U.S. Embassy or Consulate. provisions. DOD and DON policies regarding status
of forces and foreign criminal jurisdiction are set out in
(12) Any other information that would provide DODDIR 5525.1 of 2 July 1997 and SECNAVINST
a full understanding of the case and enable the 5820.4 (series).
Government to prepare a defense. b. Policy. It is DOD policy to maximize the
exercise of U.S. jurisdiction and minimize the exercise
1008 IMMIGRATION AND of foreign criminal jurisdiction to the extent
NATURALIZATION permissible under the applicable SOFA.

Section 0712 of Chapter VII, Legal Assistance, c. Exercise of jurisdiction. While international
provides guidance on immigration and naturalization. law generally recognizes the authority of the host state
over all persons in its territory, the sending state also
1009 STATUS OF FORCES has a legitimate need to maintain good order and
AGREEMENTS discipline among the members of its forces. Host
states have no direct interest in many offenses, such as
a. General. Status of Forces Agreements (SOFA) those committed on base or where both the victim and
govern the rights, obligations, and privileges of offender are members of the U.S. force. To balance
military personnel stationed in foreign countries. The the relative interests of the host and sending states,
NATO SOFA is generally used as a model. Although most SOFA's provide for each state to have exclusive
the wording of individual SOFA's varies, they are jurisdiction over certain classes of offenses and for
generally uniform in subject matter. Some of the more them to share concurrent jurisdiction over others. In
important provisions cover entry and exit from the host case of concurrent jurisdiction, the SOFA provides for
country, customs, respect for local law, taxation, primary and secondary rights to exercise that
criminal jurisdiction, and claims. Note: Not all U.S. jurisdiction, depending upon such factors as the type of
military personnel in country are necessarily covered offense, whether the offense arose in the performance
by the SOFA. For example, military personnel of official duty, and whether the victim was a fellow
attached to a U.S. embassy are normally afforded member or dependent of the sending state's forces.
diplomatic status.
d. Waiver of jurisdiction. SOFA's generally
b. Foreign personnel in the United States. Most include a procedure where one state may waive its
SOFA's govern only U.S. personnel stationed right to exercise concurrent jurisdiction if so requested
overseas. The NATO SOFA is reciprocal, in that it by the other state. In some agreements, this waiver has
also covers personnel from other NATO countries been institutionalized so that the host state essentially
stationed in the United States. Foreign service agrees in advance to a blanket waiver, with the right to
personnel in the United States not protected by a "recall" its waiver if a specific offense is of "particular
SOFA are governed by applicable Federal law and importance."
regulations, State law, and working arrangements with
the various States. Foreign service personnel serving e. Custody. Whenever U.S. military personnel or
in the United States are exempt from U.S. income tax members of the civilian component or their dependents
of non-U.S. source income. They are also exempt are apprehended by foreign authorities on criminal
from certain custom duties. charges, every effort should be made to secure their
release to U.S. custody pending final resolution of
1010 FOREIGN CRIMINAL judicial proceedings.
JURISDICTION
(1) Requests by foreign authorities for delivery
a. General. A sovereign nation has jurisdiction to of custody of such personnel should be handled in
punish offenses against its laws committed within its strict compliance with the applicable SOFA. If there is
borders, but may waive its jurisdiction. Every SOFA no SOFA, U.S. personnel should not be delivered to
includes provisions for the exercise of criminal foreign authorities pending guidance from the Judge
jurisdiction. Other agreements (e.g., for personnel Advocate General.
exchanges, professional military exchanges, and unit

10-8
 (2) Personnel in foreign custody, whether prior j. Military Extraterritorial Jurisdiction Act of
to or after trial, must be visited on a regular basis in 2000 (MEJA). MEJA has expanded the criminal
accordance with SECNAVINST 1640.9B (Corrections jurisdiction of the United States to civilians
Manual) and chapter 3 of SECNAVINST 5820.4G. accompanying U.S. forces overseas. The availability
Particular attention should be given to legal assistance, of criminal sanctions for conduct overseas may assist
medical care, adequacy of food and clothing, health in obtaining waiver of host nation jurisdiction over
and comfort, and accountability for personal property. offenses committed by civilians. See 18 U.S.C. §
See MILPERSMAN 1160-050 or MCO P1900.16D, 3261. See also the DOD implementing instruction,
paragraph 1006.2i, regarding processing of personnel found at 32 C.F.R. § 153 or DODI 5525 (series).
confined in foreign jails for administrative discharge.
Such personnel will not be separated until completion 1011 ENFORCEMENT OF U.S. LAW
of sentence and return to the United States. OVERSEAS
SECNAVINST 5820.4G, paragraph 3-8.
Routine exercise of U.S. jurisdiction over DOD
f. Fees. Under U.S. law, counsel fees, court costs, personnel in countries where U.S. personnel are
bail, and other expenses associated with the exercise of stationed is provided for in the status of forces
foreign criminal jurisdiction over members and provisions of agreements with the host government
members of the civilian component, and their and the Uniform Code of Military Justice. Generally,
dependents, may be paid by the U.S. Government. assistance by DOD personnel to U.S. civilian law
Use of U.S. Government funds to pay fines is not enforcement agencies is provided pursuant to
authorized. See chapter 2 of SECNAVINST 5820.4 DODDIR 5525.5 of 15 January 1986. Outside U.S.
(series). jurisdiction, military actions conducted in direct
assistance to U.S. civilian law enforcement agencies
g. Solatia. In certain countries, it is customary to require the approval of the Secretary of Defense or the
offer a victim or his family a token gift of fruit, Deputy Secretary of Defense who will consider, on a
flowers, or money for injury, death, or property case-by-case basis, requests for exceptions to the
damage. Depending on the local culture, such token policy restrictions against direct assistance by military
expressions of remorse can affect the resolution of personnel. Such requests should be sent through the
criminal charges. NAVCOMP MANUAL 075146 Secretary of the Navy via the Judge Advocate General.
permits the payment of solatia from operation and
maintenance funds under certain circumstances, as 1012 PROPERTY CAPTURED FROM THE
determined by the appropriate country commander. ENEMY DURING ARMED CONFLICT
Consult the area coordinator or the nearest naval legal
service office to determine the propriety of paying Title to captured enemy public property passes from
solatia from official funds in a particular country. the government of the enemy. Under U.S. law, it
becomes the property of the U.S. Government.
h. Official duty. Under every SOFA, offenses Individuals, whether enemy or friendly, acquire only
committed in the performance of official duty are such private rights in captured enemy public property
subject to the primary jurisdiction of the United States as the laws of the United States provide. See
rather than the host nation. Such cases should be OPNAVINST 3460.7A and MCO 5800.6A. See also
handled in strict compliance with the applicable Article 103, UCMJ, 10 U.S.C § 903.
SOFA.
i. Reporting requirements. The exercise of 1013 NONCOMBATANT EVACUATION
foreign criminal jurisdiction creates a number of OPERATIONS (NEO)
reporting requirements. The most important for the
operational unit is the serious incident report described The Secretary of State is responsible for the safe and
in section X or XI of OPNAVINST 3100.6G. See also efficient evacuation of U.S. Government personnel,
MCO 5740.2E, chapter 4 of SECNAVINST 5820.4G, their dependents, and private U.S. citizens from
and regulations issued by the cognizant area foreign territory when their lives are endangered by
coordinator. war, civil unrest, or natural disaster. The Secretaries of

10-9
State and Defense are assigned lead and support
responsibilities, respectively. Combatant commanders
are prepared to support Department of State to conduct
NEO's. See NWP 1-14M/MCWP 5-2.1, section
3.10.3, DODDIR 3025.14 and FMFM 8-1, chapter 7.
See also 22 U.S.C. § 4801 and 3 C.F.R. 585 (1988
compilation), sections 502 and 1301.

1014 ACCEPTANCE OF GIFTS FROM

FOREIGN GOVERNMENTS

Under the Constitution and U.S. laws, military

personnel and civilian employees of the Department of
the Navy may not accept gifts from foreign
governments without the consent of the Congress.
Congress has consented to the acceptance and personal
retention by military personnel and civilian employees
of gifts of minimal value only. Procedures for the
acceptance of gifts of more than minimal value are
contained in DODDIR 1005.13 of 13 October 1988,
Chapter 7 of SECNAVINST 1650.1G, and MCO
4001.2A

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 CHAPTER XI
CUSTOMS REQUIREMENTS - DOMESTIC AND FOREIGN

1101 SCOPE

1102 ENTRY REQUIREMENTS

1103 PRE-CLEARANCE

11-1
 CHAPTER XI

CUSTOMS REQUIREMENTS - DOMESTIC AND FOREIGN

1101 SCOPE operations. Personnel, accompanied baggage, personal

property, and cargo and the associated documentation
This chapter provides information on provisions of are also subject to inspection. The vessel or aircraft
United States customs laws and regulations commonly commander is responsible for providing border
encountered by naval personnel, as well as basic clearance documentation, and will not:
information on the international law of customs. U.S.
Customs regulations are found in title 19, United States • Interfere with the performance of duties of the
Code, and title 19 of the Code of Federal Regulations. USCS, USDA, INS, or CBCA/Military
It is DOD policy to comply with U.S. export laws, Customs Inspection - Excepted (MCI-E)
which are generally outlined in titles 15 and 22, Code personnel.
of Federal Regulations. The Deputy Undersecretary of • Permit any cargo, baggage, or equipment to be
Defense for Acquisition, Technology, and Logistics, removed from any vessel or aircraft without
exercises all staff supervision over Customs and permission from the designated border
Border Clearance matters within DOD. clearance official.
USTRANSCOM is responsible for developing policies • Allow any passenger or crewmember to depart
and procedural guidance. The military customs from a vessel or aircraft prior to completion of
inspection program is governed by the transportation arrangements for final border clearance
regulations in DOD Regulation 4500.9-R, part V, of processing.
March 2003. Customs responsibilities of vessel and
aircraft commanders are also addressed in Article 0860 b. Prohibited and Restricted Items. Specific
of the U.S. Navy Regulations, 1990, and paragraph guidance and the required customs forms, addressing
510.14 of OPNAVINST 3120.32B. restricted and prohibited articles, agricultural products,
firearms, war trophies, and implements of war can be
Customs regulations change frequently. found in chapter V of DOD 4500.9-R.
Recommended sources of information for the DOD
Customs and Border Crossing Program include:
1103 PRE-CLEARANCE
• The DOD Customs Program Web Page at
https://business.transcom.mil/applications/custo The USCS will support pre-clearance for major
ms/dodcustoms.cfm. unit redeployments in conjunction with training
• Country-specific requirements can be accessed exercises and contingencies. Theater and component
through DOD 4500.54G, The DOD Foreign commanders must ensure that that there are adequate
Clearance Guide, available at: facilities available for pre-clearance operations and
http://www.fcg.pentagon.mil. ensure that the Navy identifies military law
• Personal Property and Consignment enforcement personnel to be trained as CBCAs. The
Instructions can be accessed at: training of CBCAs will be provided and approved by
http://www.mtmc.army.mil. USCS and the USDA. CBCAs will inspect crews,
troops, baggage, equipment, and documents when the
1102 ENTRY REQUIREMENTS destination is in CONUS. Though the Military
Customs Inspection Program is no longer recognized
a. General. All ships, aircraft, and other modes of by the USCS, an MCI-E program can be established
transport entering the Continental United States through a memorandum of understanding negotiated
(CONUS) from a foreign port or place will be subject between the base commander and the local USCS Port
to a complete customs inspection upon arrival at the Director.
first U.S. port of entry. Exception provisions apply
where an agreement exists between the USCS and the
U.S. Navy for shipboard inspections and pre-clearance

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 CHAPTER XII
ADMIRALTY CLAIMS

PART A - INTRODUCTION 1205 SUBSEQUENT INVESTIGATIVE

REPORT
1201 SCOPE
a. Generally
a. General application b. Admiralty Letter Report investigation
b. Guidance and procedures c. Command Investigation
c. Notice d. Dual-Purpose investigation
e. Court of Inquiry
1202 ORGANIZATION f. Relation to damage survey
g. Release of investigative report
a. Secretary of the Navy
b. Judge Advocate General 1206 SURVEYS
c. Other organizations
a. Claim asserted
PART B - REPORTING AND b. Determination of damage
INVESTIGATING c. Timeliness
ADMIRALTY d. Acceptance of survey invitation
INCIDENTS
1207 DOCUMENTARY EVIDENCE
1203 ADMIRALTY INCIDENTS
a. Original documents
a. Generally b. Use of documents at trial
b. Collision c. Photographs and videotapes
c. Allision d. Logs
d. Personal injury or death
e. Property damage 1208 COLLISION AND ALLISION
f. Swell wash/wake damage CASES
g. Naval maritime target ranges
h. MWR and special services boats and a. Documentary evidence
marinas b. Safeguard records
i. Naval Aircraft and Weapons c. Conflicts of time
j. Salvage d. List of officer and enlisted
k. Vessel seizures watchstanders
l. Groundings
m. Significant maritime incidents

1204 INITIAL REPORT OF

ADMIRALTY INCIDENT

a. Means of report
b. Initial report
c. Notice

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1209 DOCUMENTING COLLISION 1214 STATUTE OF LIMITATIONS
DAMAGE AND REPAIR COSTS
a. Suits under the Suits in Admiralty Act
a. Elements of naval damages or the Public Vessels Act
b. Collision repairs b. Admiralty claims
c. Repair costs
d. Noncollision work 1215 ADMINISTRATION OF
e. Commercial shipyard repairs ADMIRALTY CLAIMS
f. Detention costs
g. Prompt repairs a. Generally
b. Assistance to claimants
1210 PERSONAL INJURY CASES
1216 ADJUDICATING ADMIRALTY
a. Generally CASES AS FOREIGN CLAIMS
b. Types of victims
c. Considerations in any investigation a. Foreign Claims Act
d. Shoreworker injuries b. Copy to JAG
e. General visiting and ship tours
f. Civilian Federal employees PART D - AFFIRMATIVE
ADMIRALTY CLAIMS
1211 CORRESPONDENCE WITH
PRIVATE PARTIES 1217 AUTHORITY FOR AFFIRMATIVE
CLAIMS SETTLEMENT
a. Forward to JAG
b. Naval personnel a. Generally
c. Admissions of liability b. SECNAV authority
c. Settlement authority
PART C -ADMIRALTY CLAIMS AGAINST d. Delegation
THE DEPARTMENT OF THE e. Compromise and settlement
NAVY
1218 STATUTE OF LIMITATIONS FOR
1212 NAVAL LIABILITY AFFIRMATIVE CLAIMS

a. Waiver of immunity 1219 AFFIRMATIVE CLAIMS

b. Suits in Admiralty Act ADMINISTRATION
c. Public Vessels Act
d. Admiralty Jurisdiction PART E - MISCELLANEOUS
Extension Act
1220 SALVAGE
1213 AUTHORITY FOR CLAIMS
SETTLEMENT a. Claims
b. Salvor
a. SECNAV authority c. Suits for compensation
b. Delegation d. Administrative settlement
c. Settlement e. Offset
f. Finder's reward

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1221 TOWAGE AND PILOTAGE

a. Generally
b. Liability

1222 INTRAGOVERNMENT
ADMIRALTY INCIDENTS

a. Waiver doctrine
b. Report of incident

1223 FOREIGN GOVERNMENT

CLAIMS

a. Report to JAG
b. Jurisdictional process
c. Immunity
d. Waiver agreements
e. Status of Forces Agreements

1224 COAST GUARD AND NATIONAL

TRANSPORTATION SAFETY
BOARD INVESTIGATIONS

a. Coast Guard investigations of

marine casualties
b. National Transportation Safety
Board (NTSB) investigations of
marine casualties

1225 MARITIME OIL/HAZARDOUS

SUBSTANCE SPILLS

1226 SALVAGE, REMOVAL,

DESTRUCTION, LOOTING, OR
DESECRATION OF NAVY
SHIPWRECKS, AIRCRAFT
WRECKS AND OTHER
SUBMERGED PROPERTY

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 CHAPTER XII

ADMIRALTY CLAIMS

PART A--INTRODUCTION

1201 SCOPE

a. General application. This chapter applies to 1202 ORGANIZATION

admiralty tort claims, including claims against the United
States for death, personal injury, or property damage a. Secretary of the Navy. The Secretary of the
caused by a naval vessel or other property under the Navy has authority for administrative settlement and
jurisdiction of the Department of the Navy, or resulting direct payment of claims for personal injury or property
from a maritime tort committed by any agent or employee damage caused by naval vessels or other property under
of the Department of the Navy, and affirmative claims by the Department of the Navy's jurisdiction, or by a
the United States for damage to naval property caused by maritime tort committed by an agent or employee of the
another's vessel or maritime tort. Also, this chapter briefly Department of the Navy, and for towage or salvage
discusses salvage claims by or against the United States services rendered to naval vessels, when the amount paid
and claims by the Government for towage services does not exceed $15,000,000.00 and the matter is not in
rendered to privately owned vessels. This chapter does litigation. 10 U.S.C. § 7622. The Secretary also has
not apply to admiralty incidents involving only U.S. authority to settle affirmative admiralty claims for damage
Government vessels or property. See section 1222. to property under the Department of the Navy's
jurisdiction caused by a vessel or floating object.
b. Guidance and procedures. Part B of this 10 U.S.C. § 7623.
chapter provides guidance to commanders on reporting
and investigating admiralty incidents. Parts C and D of b. Judge Advocate General. The Judge Advocate
this chapter discuss procedures for processing admiralty General processes admiralty claims for adjudication by
claims by judge advocates involved in admiralty claims the Secretary of the Navy, or the Secretary's designee,
adjudication. and acts as principal liaison with Department of Justice
for admiralty tort cases in litigation. The address of the
c. Notice. Effective handling of admiralty claims Judge Advocate General is:
depends on immediate notice of any admiralty
incident, however trivial, to the Judge Advocate Office of the Judge Advocate General (Code 11)
General. The Deputy Assistant Judge Advocate 1322 Patterson Avenue SE, Suite 3000
General (Admiralty and Maritime Law) is designated Washington Navy Yard, DC 20374-5066
as Admiralty Counsel of the Navy and is responsible
for all admiralty and maritime law claims and Phone: (202) 685-5040 (DSN 325)
legal/policy issues addressed in this chapter. Fax: (202) 685-5471 (DSN 325)
Notifications per this chapter to OJAG Admiralty and Secure (STU) phone: (202) 685-7040
Maritime Law Division suffices for notification to the Email: [email protected]
Judge Advocate General. See sections 1203 and 1204. PLAD: NAVY JAG WASHINGTON DC//11//
Prompt reporting facilitates proper investigation and OJAG Duty Officer (after hours): (202) 685-7094,
resolution of admiralty matters, whether the case is Pager (888) 523-9524
settled administratively under the Secretary of the
Navy's statutory claims settlement authority or results c. Other organizations. Other organizations may
in litigation. process some admiralty claims. Deputy Commander,
U.S. Naval Forces, Europe; and Commander, Sixth
Fleet, have been delegated limited authority to

12-4
adjudicate and settle admiralty tort claims against the
United States arising in their respective jurisdictions.
See section 1213b. Additionally, contract claims
arising from operation of chartered vessels, including
claims for charter hire, cargo damage, general average,
and redelivery repairs, are handled by Office of
Counsel, Military Sealift Command. Similarly, claims
for damage resulting from vessel cargo loading and
unloading operations by Department of the Navy-
contract stevedores are under the cognizance of Office
of Counsel, Naval Supply Systems Command.
However, all tort claims arising from the operation of
any naval vessel, including Military Sealift Command
(MSC) vessels, are handled by the Judge Advocate
General or, as appropriate, one of the wo naval
commanders above.

PART B – REPORTING AND INVESTIGATING ADMIRALTY INCIDENTS

1203 ADMIRALTY INCIDENTS

b. Collision. A collision occurs when a moving
a. Generally. Any personal injury, loss of life, vessel strikes another moving vessel. See sections
property damage, salvage, oil spill recovery/clean-up 0247, 1208, 1209 for special considerations when
or rescue, whether occurring at sea or on land, arising investigating a collision.
in whole or in part from the operation of any
Department of the Navy-owned or operated ship, c. Allision. An allision occurs when a moving
submarine, boat, gig, tug, barge or other vessel vessel or object strikes a stationary vessel, object, or
(including MWR) upon navigable waters, or caused by structure (such as a pier, bridge, buoy, anchored or
ship-launched aircraft or weapons, is considered an moored vessel, or a submerged object such as a wreck,
admiralty incident. Furthermore, damage occurring coral reef, moored fishnet or trap). See sections 0247,
ashore caused by a vessel or afloat object usually falls 1208, and 1209 for special considerations when
within admiralty jurisdiction, as does damage to certain investigating an allision.
structures located on navigable waters which
traditionally are not thought of as vessels. Paragraphs d. Personal injury or death. A death or personal
b through m list common admiralty incidents which injury to any person not on active duty in the Armed
often generate admiralty claims or litigation. Forces of the United States, occurring onboard a Naval
Whenever one of these incidents occurs, notify the vessel, (including small boats such as tugs, gigs, and
Judge Advocate General via the OJAG Admiralty and barges) or on the brow, gangway or ladders of a Naval
Maritime Law Division immediately by message, vessel, is an admiralty incident. Additionally, injuries
phone, E-Mail, or fax. See section 1204. Similarly, if a occurring ashore, caused by alleged negligent actions
command receives a complaint, claim, invitation to a of a Naval vessel or its crew on navigable waters, are
survey, or other correspondence alleging such an also admiralty incidents by virtue of the Admiralty
incident (even if the receiving command believes the Jurisdiction Extension Act (46 U.S.C. app. § 740).
complaint or allegation has no basis in fact), notify the
Judge Advocate General immediately. If a command is (1) Injured parties may include visitors and guests,
uncertain whether a particular occurrence is an dependents, contractor technical representatives (tech-
admiralty incident, contact the Judge Advocate reps), ship repairmen, stevedores and longshoremen,
General for guidance. civilian mariners, and harbor pilots.

12-5
 property on board a naval vessel.
(2) All personal injuries or deaths must be reported
to the Judge Advocate General despite how the (5) Significant damage to afloat naval
incident occurred, whether there is any apparent Navy property, including a vessel in dry-dock, from substandard
responsibility for the incident, whether the injury performance by a civilian contractor.
appears minor, or whether the injured person states an
intention not to file a claim against the Government. f. Swell wash/wake damage. Civilian personal
Additionally, death or personal injury occurring ashore injury or property damage allegedly resulting from the
or onboard another vessel not owned by the United wake or swell created by a naval vessel is an admiralty
States, but arising in whole or partially incident to the incident. Property damage includes damage to other
operation of any Naval vessel, is also an admiralty vessels, shore structures, oyster beds, or clam flats.
incident and must be reported. Similarly, damage to naval property from the wake or
swell from a privately owned vessel is an admiralty
(3) Examples include injuries caused by objects incident.
thrown or dropped from a Naval vessel, brow injuries,
individuals sickened by food served onboard a vessel g. Naval maritime target ranges. Civilian
or by fumes or gas emanating from a vessel, and personal injury or property damage allegedly resulting
injuries resulting from improper medical treatment or from maintenance or use of a naval maritime target range
malpractice onboard a vessel. See section 1210 for is an admiralty incident.
special considerations in death and personal injury
investigations. h. MWR and special services boats and marinas.
Any personal injury to non-active duty persons or
e. Property damage. Any loss, damage, or damage to property owned by non-active duty persons
destruction of property, afloat or ashore, which arises, in resulting from use of Morale, Welfare, and Recreation
whole or in part, incident to the operation of a naval (MWR) marinas and rental boats (including personal
vessel, or damage to naval property caused by a privately watercraft) is an admiralty incident and must be
owned vessel or floating object, is an admiralty incident. reported. Likewise, any damage to non-Navy owned
Examples include: vessels moored, anchored, or stored at MWR or
special services marinas resulting from Government
(1) Fishing nets, lines, lobster pots, or other negligence should also be reported. This requirement
gear in the water, cut or damaged by naval vessels, is not affected by the existence of a waiver of liability
including amphibious vehicles. Also, fishing gear or release form signed by the MWR customer as a
damaged or lost by becoming fouled on Department of the condition for use of the property.
Navy submarine cables, underwater naval ship or aircraft
wreckage, or naval ordnance. i. Naval Aircraft and Weapons. Non-active duty
personal injury or property damage caused by naval
(2) Automobiles or other property located on a aircraft on or over navigable waters is an admiralty
pier damaged by an object thrown or dropped from a incident. Likewise, damage caused by sea launched
naval vessel, or by paint overspray from the vessel, or by Naval aircraft or weapons launched from Naval
smoke, fumes, or chemicals from the vessel. aircraft or a vessel, causing damage over land or sea is
also an admiralty incident. Examples include
(3) Air or water pollution damage caused minesweeping equipment cutting fishing gear, debris
by a vessel or occurring on navigable waters. This or ordnance falling from an aircraft and damaging a
includes any release of oil, fuel or other pollutants into civilian boat or injuring passengers, or damage caused
the water from a vessel, regardless of subsequent by ship and aircraft launched weapons (e.g., gunfire,
clean-up efforts. Further information about pollution missiles, bombs, etc.).
claims can be found in section 1225.
j. Salvage. Salvage of any naval property by a
(4) Damage or loss of a civilian contractor's civilian from navigable waters and salvage of civilian

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property by a naval unit are admiralty incidents. OPREP 3, oil spill reports, etc.).
Likewise, if any Navy vessel, equipment or personnel
are used in the towing, salvage, or rescue of non- b. Initial report. The initial report of an admiralty
Government vessels or property, it is also considered incident should include all information and detail
an admiralty incident and must be reported to the available at the time of the report. Normally, an initial
Judge Advocate General who will forward the report includes date, time, and place of incident, a brief
information to Counsel, Supervisor of Salvage as description of the incident and any resulting injury or
appropriate. damage, and identification of the parties involved in the
incident (naval vessel, aircraft, or unit; civilian vessel,
k. Vessel seizures. A naval unit's seizure of any individual, or organization).
civilian vessel is an admiralty incident. An example is
seizing a civilian boat during a drug interdiction operation.
c. Notice. Immediate notice enables an admiralty
attorney to examine the admiralty claims considerations of
l. Groundings. The grounding of a naval vessel is a particular case at an early stage. Liability may not be
an admiralty incident. Damage to a Naval vessel as a apparent to the naval command considering the operation-
result of the ship's own negligence without damage to al, administrative, or disciplinary features of a case. The
non-Government property, does not normally trigger admiralty attorney provides advice on admiralty issues
concerns of third party claims or litigation, however and assists in preparing the investigation considering a
damage to underwater resources, coral reefs, or civilian potential claim or civil lawsuit. Also, admiralty claims
property as a result of a grounding shall be reported to and litigation practice requires action soon after the event.
the Judge Advocate General. Additionally, the OJAG Common examples include: engaging the services of an
Admiralty and Maritime Law Division can advise on independent marine surveyor for attendance at a formal
liability considerations for use of commercial joint survey of damages (see section 1206); developing
salvage/tow services. See chapter II for special detention data on a naval vessel to be repaired; and
considerations when investigating a grounding. ensuring segregation of repair work orders and cost data
for an admiralty incident from other work, not arising
m. Significant maritime incidents. Proximity of a from the admiralty incident, accomplished during a repair
naval vessel to any significant maritime incident should be period for the convenience of the Department of the Navy.
reported to the Judge Advocate General because the
United States, even if not directly involved, is often joined 1205 SUBSEQUENT INVESTIGATIVE
in litigation arising from these events. Examples include REPORT
witnessing the loss or damage of a civilian merchant
vessel, or the rescue at sea of survivors from a sunken or a. Generally. The initial report of an admiralty
disabled vessel. incident, discussed in section 1204, shall be
supplemented as soon as practical by a written
1204 INITIAL REPORT OF investigative report. The selection of the format for the
ADMIRALTY INCIDENT report is ultimately within the convening authority's
discretion. The convening authority shall consult with
a. Means of Initial Report. Every admiralty the Judge Advocate General as soon as possible after
incident must be reported immediately by telephone, the incident. The Judge Advocate General will
fax, email, or Naval message (See section 1202b). evaluate the likelihood of litigation, may consult with
This initial report is in addition to other reports the Department of Justice, and shall advise the
required by this chapter (e.g., Admiralty Letter convening authority as to the most appropriate
Report/Litigation Report), or by other authority. The investigation format.
initial report of an admiralty incident may be
accomplished by making "NAVY JAG b. Admiralty Letter Report investigation. The
WASHINGTON DC//11//" an information addressee Admiralty Letter Report (ALR) is a convenient
on a message required by other directives (e.g., reporting method that is less time-consuming than a

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command investigation. The precise form of a letter probability of litigation is unlikely. Under these
report is less important than fulfilling the requirement circumstances the command investigation format
that the circumstances of an incident be completely and discussed in Chapter II is appropriate. An advance
promptly documented under the protection of the copy of any command investigation involving an
attorney work-product privilege. The ALR format admiralty incident shall be forwarded to the Judge
shall be used when litigation is possible and protection Advocate General as soon as possible, with
of internal information/decisions from discovery is endorsements to follow when completed.
required. The ALR shall consist, at a minimum, of a
letter from the command principally involved in an d. Dual-Purpose investigation. When a
admiralty incident, addressed to the Judge Advocate convening authority is faced with an incident involving
General, with the facts of the case stated in narrative concerns of safety, operational requirements, or
form. The ALR shall include as enclosures, unsworn accountability and the Judge Advocate General also
summaries of witness statements (written witness anticipates litigation, a Dual-Purpose investigation may
statements shall not be taken, but if a statement is be used to protect privileged information while
already in existence, it shall be preserved and allowing the investigation to be used for other official
forwarded with the report), copies of documents, purposes (e.g., disciplinary action, safety, etc.). The
photographs (including negatives), contracts, medical Dual-Purpose investigation report shall adhere to the
records, and other supporting information. Also, procedures set forth for an ALR whenever possible.
include the full name, rates/ranks, social security However, the Dual-Purpose investigation report may
numbers (for future witness tracking) and billets for all include opinions or recommendations and may be
witnesses; principles in the chain of command (CO, endorsed by the convening authority or chain of
XO, CMC, Department Head, Division Officer, command if appropriate, but those portions may be
LCPO, LPO); watchstanders; and medical response subject to discovery in litigation or release under the
personnel as appropriate. All civilian entities must be Freedom of Information Act. The initial report shall
completely identified and copies of contracts bearing be forwarded to the Judge Advocate General with
on damage should be enclosed. The report should not endorsements to follow when completed. Appendix
include opinions or recommendations and should not A-12-c contains a sample Dual-Purpose investigation
be endorsed by the convening authority or chain of appointing letter.
command. Instead, the original report and original
enclosures shall be forwarded directly (advance copy e. Court of Inquiry. The following
by email or fax) to the Judge Advocate General per additional considerations are relevant in admiralty
section 1202b. The investigating officer shall be cases involving courts of inquiry.
appointed, in writing, by the convening authority using
the sample format in Appendix A-12-a. A sample (1) When investigating collisions or allisions with
ALR is contained in Appendix A-12-b. The civilian vessels, personnel of the privately owned vessel
information contained in an ALR shall not be will not be designated parties to the investigation or
disseminated to any individual or organization not accorded such rights. They may, however, be invited to
directly involved with the conduct of the investigation appear as witnesses with counsel while testifying. Such
without prior authorization of the Judge Advocate invitations are usually declined on advice of counsel. If
General. Any unauthorized dissemination may result invitees elect to appear, neither those individuals nor their
in waiver of legal rights to the detriment of the United counsel may be present when other witnesses are
States. testifying.

c. Command Investigation. For some admiralty (2) Witnesses from a privately owned vessel
incidents, a convening authority may determine that testifying before a naval investigation should be furnished
concerns outside of litigation such as safety, a copy of their testimony as a matter of written record, and
operational requirements, or accountability outweigh the witnesses should be requested to inform the investi-
the desire to protect the Government's interests in gating officer or convening authority of any errors in the
internal information/decisions in litigation, or that the transcript. This increases the value of the record for its

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possible effectiveness for impeachment in later litigation. contractual arrangements. A survey minimizes
Opposing interests are not furnished a copy of the subsequent disputes on the nature and extent of
investigation report or any information on the testimony damage attributable to a particular incident, and
of naval witnesses. provides a reliable estimate of the cost of repairs. If a
claim is not settled administratively, the survey report
(3) In a court of inquiry, it usually is not can eliminate questions of proof during litigation.
advisable to subpoena witnesses from the private vessel Failure to give opposing interests an opportunity to
involved in a collision with a naval vessel because the survey damage allegedly resulting from an admiralty
record of the naval inquiry would then be discoverable. incident places a heavy burden of proof on the party
later seeking to establish such damage at trial. In most
(4) If submission of the investigation report admiralty cases with substantial damage, whether
will be significantly delayed, an advance copy of the involving potential claims by or against the United
transcribed testimony at the investigation should be States, a joint survey of the damage will be desired.
forwarded to the Judge Advocate General.

f. Relation to damage survey. A formal joint b. Determination of damage. The survey is the
survey of damages, described in section 1206, is not a formal, technical, joint survey held by representatives of
substitute for a command's investigative report of an the two (or more) parties involved. It is not an ex parte
admiralty incident. appraisal, as is used in the Department of the Navy's
internal investigation of an incident or with the disposal of
g. Release of investigative report. No individual worn or damaged naval material. Nor should a joint
or command, other than the Office of the Judge survey of damage be confused with the survey conducted
Advocate General, may release an Admiralty Letter on civilian vessels by representatives of marine
Report investigation or Dual-Purpose investigation underwriters following damage incidents. Rather, for a
report of an admiralty incident, or any portion, to any formal joint survey of damage, each party normally
individual or organization not directly involved in the appoints its own surveyor who, with the other surveyor(s),
conduct of the investigation itself, involved in critical examines the damage and attempts to reach agreement on
self-analysis of the incident, or involved in preparation the extent of damage from the casualty. The survey report
for litigation on behalf of the Government. See lists items of damage and recommended repairs. When all
SECNAVINST 5720.42 and 5820.8 (series). A parties agree, the surveyors sign the report to record their
command contemplating release of a command concurrence; surveyors normally sign without prejudice as
investigation of an admiralty incident to a potential to liability. If there is disagreement, disputed points are
claimant, an attorney purporting to represent a specifically noted. No surveyor subscribes to any
claimant, or any other private person or organization statement in the survey report when he disagrees.
shall first consult with the Admiralty and Maritime
Law Division. See section 1211. c. Timeliness. Surveys must be held as soon
after the casualty as possible. Surveys are arranged
1206 SURVEYS and funded by the Judge Advocate General.
Department of the Navy personnel should refrain from
a. Claim asserted. When a claim for damage to inspecting damage with an opposing party's surveyor.
property arising from an admiralty incident is asserted, DON participation may be mistaken for the Navy's
the party contemplating such a claim usually invites official participation in the joint survey.
the allegedly responsible party or parties to a formal
joint survey of the damage. If invited to attend a joint d. Acceptance of survey invitation. Only the
marine survey to be conducted by the opposing party, Judge Advocate General may accept survey invitations
the Judge Advocate General shall be consulted to from potential claimants, extend survey invitations to
determine if Navy attendance and participation is persons allegedly responsible for damaging naval
necessary or desired. Otherwise, the Judge Advocate property, and request representation by a marine
General will determine whether a joint maritime surveyor at the survey. If any naval activity receives
survey is warranted and will make the necessary

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an invitation to attend a survey of damage, the Judge use.
Advocate General must be notified immediately.
d. Logs. No erasures should be made in a
1207 DOCUMENTARY EVIDENCE logbook or original navigation record. Make corrections
by lining through the original so that it is still legible and
a. Original documents. The Government's inserting the correction. The person making the change
position may be materially prejudiced if an original should initial the original entry and correction.
document is not available at trial. No apparently
relevant original document should be destroyed or 1208 COLLISION AND ALLISION CASES
discarded without the prior approval of the Judge
Advocate General. Photocopies of pertinent official a. Documentary evidence. Commanding officers
documents are acceptable for investigative reports shall ensure that all documentary evidence is collected
under section 1205; however, original logs, rough and safeguarded immediately after any collision or
statements, chronologies, and other documents must be allision involving a Naval vessel. Witnesses shall not
segregated and safeguarded for possible future use at a be asked to produce written or recorded statements,
trial. Because a trial may occur years after the logs or drawings. Once an investigating officer has
incident, the custodian must ensure the materials are been appointed in writing, summaries of witness
not inadvertently discarded by persons unfamiliar with statements shall then be obtained. If any written
the admiralty incident and the reasons for preserving statements, personal logs or drawings concerning the
the documents. If possible, all original documents and incident are discovered, they shall be preserved and the
photographs (including negatives) should be labeled as originals included as enclosures to the subsequent
originals and forwarded to the Judge Advocate General investigation. The following are among the original
for retention. records which normally shall be preserved for the
investigative report (note that not all below-listed logs
b. Use of documents at trial. Although originals and records are relevant in every case):
are required at trial, the original is produced for inspection
only and does not become part of the court record. The (1) Deck log;
court attaches a copy to the record of trial and returns the
original to the Judge Advocate General for forwarding to (2) Bell book;
the appropriate command.
(3) Engineering log;
c. Photographs and videotapes. Photographs and
videotapes can be valuable enclosures to admiralty (4) Chart in use (do not erase markings or continue
investigations, especially when taken near in time to the to use once a collision or allision has occurred);
incident. They illustrate property damage, angle of
collision, size and condition of equipment, and physical (5) CIC/CDC watch log;
layout of a space where an injury occurs. Commands may
use official photographers or other persons to take (6) Surface/Subsurface tracker log;
photographs. Record on the reverse side of each
photograph: the hour and date it was taken; a brief (7) Position log;
description of the location or area photographed; the full
name, rank or rate, and Social Security number of the (8) Bearing book;
photographer; and full names and addresses of persons
present when the photograph was taken. Similar (9) Magnetic compass record;
information should be on a label affixed to a videotape.
This information is important so photographs or (10) Deviation data, azimuth records and course
videotapes can be authenticated and identified by recorder records (to include Shipboard Inertial
witnesses during litigation. Photographic negatives Navigation System (SINS) or Electrostatic Gyro
should be segregated and safeguarded for possible future Navigator (ESGN) printout if installed);

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 (27) Joint Maritime Command Information
(11) Fire control system printouts reflecting contact (JMCIS) or Global Command and Control System -
data; Maritime (GCCS-M) track data;

(12) Commercial Outboard Logistics Upgrade (28) Navigation Sensor System Interface (NAV
(COBLU) position data; SSI) information;

(13) Contact Evaluation Plot (CEP) (onboard (29) Engineering systems electronic data records;
submarines);
(30) Bridge, CIC/CDC and engineering standing
(14) Radar log(s); orders (with signature log);

(15) Fathometer log; (31) CIC/CDC and Engineering Doctrines, Ship's

Organization and Regulation Manual(s) (watchstander
(16) Weather log; duties and procedures);

(17) Dead Reckoning Tracer (DRT) plot (32) Night orders (with signature log);
(annotated with the DRT operator's name, scale and
time period covered); (33) Any audio or video tapes that recorded any
aspect of the incident (including U.S. Coast Guard
(18) Bridge and CIC/CDC maneuvering board bridge-to-bridge recordings);
worksheets;
(34) Damage control boards (do not erase markings
(19) Photographs of bridge and CIC/CDC status or continue to use once a collision or allision has
boards (do not erase markings or continue to use once occurred);
a collision or allision has occurred);
(35) Damage control reports; and
(20) Photographs of bridge and CIC/CDC radar
repeater scope faces with grease pencil markings. (Do (36) Training and qualification records for all
not erase markings or continue to use once a collision Bridge, CIC, Deck Division and engine room
or allision has occurred. If possible, remove the scope watchstanders.
face cover to preserve the markings);
b. Safeguard records. To preserve all records of
(21) Bridge to bridge VHF radiotelephone log; first entry, collect and safeguard rough logs, notebooks,
and individual sheets of paper containing navigational or
(22) Bridge and CIC/CDC radiotelephone logs and other data later recorded in a smooth log, noting who
recordings (such as from an RD390); recorded the particular information.

(23) Underwater telephone log; c. Conflicts of time. Conflicts between times of

entries in various logs often cause difficulty in litigation.
(24) Communication and signal logs; Comparisons of the clocks in the bridge, CIC, engine
room, radio room, etc., should be recorded as soon as
(25) All messages relating to the incident possible after a collision or allision.
(classified and unclassified, from every net, whether
transmitted or received); d. List of officer and enlisted watchstanders.
Completely list all officer and enlisted watchstanders on
(26) Command and Decision (C&D) System the bridge (including lookouts), signal bridge, CIC, and
recordings; engine room at the time of the incident, as soon as
possible after the incident. The identity of any other

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person who was in CIC, on the bridge, or otherwise and exact records of collision repair costs and to expedite
topside when a collision or allision occurred, also should the furnishing of data to judge advocates preparing
be noted. This list shall contain the full name, rank/rate, damage statements. Usually, original repair
Social Security number, and watchstation of each specifications, job orders, time and material cards, dry-
individual. docking report, and departure report are needed for
damage statements. Coordination with the repair activity
1209 DOCUMENTING COLLISION DAMAGE is necessary. The vessel's logs must contain entries
AND REPAIR COSTS establishing the specific time the collision repairs were
commenced and completed. A departure report must be
a. Elements of naval damages. In almost all checked to confirm that its data is consistent with other
collisions where the other vessel is at least partially at repair documents and that there is a proper allocation of
fault, the United States will assert a claim against that costs between collision and noncollision items, as
vessel for the costs incurred in repairing the naval ship. reflected by the job orders.
Establishing the value of the Department of the Navy's
damage claim is often extremely difficult. The claim d. Noncollision work. All noncollision work
arising from a collision or allision may include the cost of: must be covered by separate job orders to eliminate
including noncollision work in the collision repair costs.
(1) Temporary and permanent hull repairs;

(2) Dry-docking;
(3) Lost or damaged equipment, stores, e. Commercial shipyard repairs. When naval
provisions, fuel, and ammunition; vessels will be repaired in commercial yards rather than
naval shipyards, invitations to bid are issued to
(4) Off-loading and reloading fuel and commercial shipyards and the contract is awarded to the
ammunition; low bidder. The collision repair specifications should be
based on the surveyor's findings and recommendations.
(5) Towage and pilotage; The shipyard's bill or invoice and proof of Department of
the Navy payment shows repair costs for those items
(6) Personnel claims paid to crewmembers performed by the commercial shipyard. As with repairs
who suffered personal property losses due to the collision; done by a naval shipyard, noncollision work should be
covered by separate specifications, job orders, bids, and
(7) Survey fees; invoices.

(8) Detention; and f. Detention costs. When a commercial vessel

must be withdrawn from service because of collision
(9) Emergency assistance by other naval damage, her owner may recover the vessel's loss of
commands to the naval vessel involved. earnings and reasonable expenses incurred during the
repair period. This loss of earnings rule does not apply to
b. Collision repairs. Collision repair naval vessels since they do not carry passengers or cargo
specifications should concur with the findings and for profit.
recommendations in the joint survey report. If significant
additional damage not covered by the original survey is (1) When a collision causes the unexpected
discovered during repairs, the Judge Advocate General loss of use of a naval vessel, however, the Government
should be notified immediately so opposing interests may may recover the operating and maintenance costs of the
be contacted for a chance to survey newly discovered ship for the period the Department of the Navy was
damage. deprived of the vessel's normal service. Detention is not
legally recoverable when a vessel would have otherwise
c. Repair costs. The Naval Sea Systems been out of service, such as for periodic overhaul or
Command directs its field activities to maintain separate prospective inactivation. Detention includes out-of-

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pocket expenses for the repair period, particularly-- vessel, or the brow, gangway, ladder or other maritime
property attached to a vessel, or a person injured on a
(a) Pay and allowances of officers pier or otherwise near the vessel as a result of an
and crew; incident that occurs onboard a vessel. The following
classes of people may be considered victims in injury
(b) Subsistence of crew; cases: ship workers, guests, dependents, ship
repairmen, contractor technical representatives (tech
(c) Fuel and lube oil consumed; and reps), longshoremen, stevedores, maintenance and
sanitation workers, harbor and river pilots, civilian
(d) Supplies and stores consumed. mariners, and persons rescued from maritime distress.

(2) To support a detention claim, the c. Considerations in any investigation. When

Department of the Navy's damage statement includes investigating any personal injury or death case, consider:
documentary evidence showing the exact subsistence,
wages, and other expenses of the vessel. Affidavits from (1) Logs. All shipboard injuries to persons
the cognizant supply, disbursing, and engineering officers not members of ship's company should be recorded in the
stating that the original ship's records (that must be ship's deck log. The occurrence may be mentioned in
preserved) disclose such expenditures will support the other logs, such as the engineering log when the incident
claim. The Judge Advocate General will provide advice occurs in an engineering space, or in the medical log if
care is rendered by the medical department. All logs
and assistance on preparing affidavits and other which might possibly contain an entry about the incident
documentation in support of a detention claim. should be inspected by the investigating officer, and
photocopies of each log containing a relevant entry should
g. Prompt repairs. Collision repairs to a naval be included in the investigative report. When copying a
vessel should be made as expeditiously as practical, log, copy the entire day's log, not just the page containing
especially when a detention claim is being presented by the relevant entry. If no entries on an injury are found in
the Government. A short repair period avoids the any log, it may indicate the victim was not hurt seriously
"skeleton crew doctrine," where the Department of the enough to report the injury to the OOD or to request
Navy would recover as detention costs only the pay, immediate medical assistance. Clearly identify logs
allowances, and subsistence for a skeleton crew, rather reviewed and indicate that no entry was found on the
than the full complement of members, when an extended alleged occurrence.
repair period was involved.
(2) Witnesses. Clearly identify all naval and
1210 PERSONAL INJURY CASES civilian witnesses to the accident. Identify all persons in
the space at the time of an accident, even if they claim not
a. Generally. Any shipboard death or injury to to have seen or heard anything. For naval personnel,
an individual not a member of the armed forces of the include the member's full name, rank/rate, and Social
United States is an admiralty incident. See section 1203d. Security number. For civilians, include the person's full
This section applies to injuries to persons ascending or name, home address, and telephone number. If the person
descending a brow, gangway, or accommodation ladder, is a civilian shoreworker, also include his badge number,
or to injuries to persons on a pier or on another vessel as a employer, and shop where the person is employed. It is
result of events taking place on board the naval ship. also useful to identify the ship's personnel normally in
Notify the Judge Advocate General immediately of such charge of the particular space (division officer, LPO,
accidents so the incident is investigated as required by DCPO) so they may be contacted to comment on the
sections 1203 through 1205. space's cleanliness, upkeep, and general repair.

b. Types of victims. Victims include any person (3) Witness statements. The investigating
who is not an active duty member of the United States officer should prepare a summary of the interview with
Armed Forces, injured while onboard any Naval the witness, rather than having the witness write, sign, or

12-13
adopt a statement. Many civilian shoreworkers may be investigating officer should not delay an investigation to
reluctant to prepare or sign a written statement, especially obtain detailed medical records from a civilian hospital,
when one of their fellow workers is involved. Frequently physician, or the injured party. The investigating officer
they will provide a statement to their employer, which the should determine the general nature of the victim's injuries
investigating officer may obtain by requesting a copy of from reports and records readily available to the
the employer's accident report. If an apparent witness Department of the Navy.
declines to provide any information, it is extremely
important to obtain the precise identifying data mentioned d. Shoreworker injuries. For a shoreworker
in the preceding paragraph. injury investigation, an accident report and/or an
employer's report of injury may be obtained from the
(4) Inspection of the accident site. A claim injured worker's employer, the shipyard safety office, or
or suit by an injured shoreworker or visitor is based on a the cognizant office of the Supervisor of Shipbuilding,
contention that the ship was negligently maintained or Conversion and Repair, USN (SUPSHIP).
operated. A post-accident inspection can be corroborated
by evidence of other inspections (zone, safety, or health e. General visiting and ship tours. In addition to
and comfort) closely preceding the incident. Evidence paragraph c of this section, investigative reports of an
that qualified personnel (DCPO, LPO, division officer, injury occurring during general visiting or tours of the
safety officer, or investigating officer) carefully inspected ship should comment on warnings given to visitors
a site immediately following an accident and found the (conspicuous signs, printed warnings on brochures
area free from defects is especially important when there provided, and verbal warnings by a tour guide), and
is no eyewitness to the injury. The post-accident presence of crewmembers on the tour route to assist
inspection should focus on conditions likely to have visitors and correct any hazardous conditions noted.
contributed to the particular incident; for example, if the
victim was injured in a fall, the inspection should include f. Civilian Federal employees. If a civilian
the quality of the footing (Was the deck or ladder wet or Federal employee died or was injured in the course of
greasy? Were the ladder treads worn?), lighting in the employment in an admiralty incident, report it
space, and existence of structural conditions and immediately to the Judge Advocate General. The Federal
protuberances that might cause an individual to fall. Employees Compensation Act (FECA), is the sole means
Similarly, if the injury resulted from the failure or giving- of redress against the United States for such individuals. 5
way of any of the vessel's gear or equipment, a careful U.S.C. §§ 8101-8193. Accordingly, investigative
examination to discover the cause of the failure should be responsibilities for these cases will be streamlined and the
made, and, if feasible, the gear should be carefully Judge Advocate General will provide guidance. If the
preserved. Whenever possible, a post-accident inspection victim is injured outside the course of employment, FECA
should include photographs of the accident location (or does not apply and the case is investigated as any other
gear involved) before any changes are made after the personal injury or death case.
incident. See section 1207c. Furthermore, if a defective
condition is uncovered, the inspector should attempt to 1211 CORRESPONDENCE WITH
determine how long the condition has been in existence, PRIVATE PARTIES
who (individual and employer) created the condition, and,
if created by someone other than a United States a. Forward to JAG. All correspondence received
employee, whether any crewmembers learned of the by a command on an admiralty incident, especially that
defective condition prior to the accident. Finally, PMS from a claimant or an attorney purporting to represent a
records for a space or piece of equipment should be claimant, shall be forwarded expeditiously to the Judge
consulted and retained when a defective condition is Advocate General for reply. Under
found. SECNAVINST 5820.8 and SECNAVINST 5720.42D, the
Judge Advocate General is responsible for processing
(5) Medical records. Include copies of all requests for Department of the Navy records, for access to
naval medical records of treatment by naval personnel in Department of the Navy property and information, or for
an investigative report of a death or injury. The interviews of naval personnel in admiralty matters. These

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 requests often precede claims or lawsuits against the
United States.

b. Naval personnel. All naval personnel

contacted by a claimant, or by a claimant's attorney on an
admiralty incident, should not give a statement or make
any admissions which might prejudice the Government's
case. Rather, the member should report the contact to the
commanding officer, who will inform the Judge Advocate
General.

c. Admission of liability. Naval personnel shall not

advise a claimant to forward a repair bill so the
Department of the Navy can "take care of it." This advice
may mislead the claimant and serve as a later charge the
Department of the Navy admitted liability. Similarly,
avoid any informal, off the record assurances of probable
recognition of a claim.

PART C - ADMIRALTY CLAIMS AGAINST THE DEPARTMENT OF THE NAVY

1212 NAVAL LIABILITY commerce. This includes government owned or

bareboat chartered vessels operated by contract
a. Waiver of immunity. The United States crews through the Military Sealift Command (MSC)
waived immunity and consented to suits arising from and the Maritime Administration (MARAD). The
admiralty incidents under the Suits in Admiralty Act, 46 Act allows a complaint in personam against the
U.S.C. App. §§ 741-752, and the Public Vessels Act, 46 United States in the Federal district court for the
U.S.C. App. §§ 781-790. district in which the public vessel is located at the
time of the filing of the complaint. If the public
b. Suits in Admiralty Act. The Suits in vessel is outside the territorial waters of the United
Admiralty Act provides that, whenever a suit in States, then suit may be brought in the district in
admiralty can be brought against a private party or which the plaintiffs (or any one of them) reside or
vessel, a suit can be brought against the United States in have an office or business, or, if none of the
like circumstances. The law specifies that a plaintiffs reside or have a business or office in the
Government vessel or cargo shall not be subject to United States, then in any district court. Although
arrest or seizure; rather, a complaint in personam shall the Public Vessels Act is primarily a tort statute, it
be brought against the United States in Federal district allows suits arising from maritime contracts,
court for the district in which plaintiffs (or any one of including suits for towage and salvage services
them) reside or have their principal place of business, or rendered to a public vessel, to be brought against the
in which the vessel or cargo charged with liability is Government.
found.
d. Admiralty Jurisdiction Extension Act.
c. Public Vessels Act. All naval vessels are While admiralty jurisdiction in the United States
public vessels and litigation for damages caused by originally did not extend to damage caused by a vessel
such vessels must proceed under the Public Vessels to a land structure, such as a pier or wharf, the
Act. Public vessels are defined as vessels owned or Admiralty Jurisdiction Extension Act, 46 U.S.C. App. §
bareboat chartered and operated by the United 740, may make the United States liable under the Suits
States, except when the vessel is engaged in in Admiralty Act or the Public Vessels Act whether the

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damage occurs on navigable waters or on land.
b. Admiralty claims. The 2 year statute of
1213 AUTHORITY FOR CLAIMS limitations also applies to the Secretary of the Navy's
SETTLEMENT settlement authority for admiralty claims filed against
the United States. A settlement and written approval of
a. SECNAV authority. The Secretary of the the Secretary or designee must be concluded before the
Navy has authority to settle, compromise, and pay end of the 2 year period or the claimant must file suit
claims up to $15,000,000.00 for: (1) damage caused under the appropriate statute. A statement describing
by a vessel in the naval service or by other property the Secretary's settlement authority and this limitation is
under the jurisdiction of the Department of the Navy; usually included in the initial correspondence from the
(2) compensation for towage and salvage service, Judge Advocate General to a claimant or claimant's
including contract salvage, rendered to a vessel in counsel to avoid future assertions that he was misled.
the naval service or to other property under the
jurisdiction of the Department of the Navy; or (3) 1215 ADMINISTRATION OF
damage caused by a maritime tort committed by any ADMIRALTY CLAIMS
agent or employee of the Department of the Navy or
by property under the jurisdiction of the Department a. Generally. It is the Department of the
of the Navy. 10 U.S.C. § 7622. A claim settled for Navy's policy to settle admiralty claims fairly and
an amount over $15,000,000.00 must be certified to promptly when legal liability exists. administrative
Congress. Regulations on the Secretary's settlement settlement of admiralty claims eliminates the expense
authority are found at 32 C.F.R. part 752. and delay of litigation while obtaining a result
advantageous to the financial interests of the United
b. Delegation. States. Litigation is likely when settlement cannot be
arranged.
(1) The Judge Advocate General, the Deputy
Judge Advocate General, the Assistant Judge b. Assistance to claimants. Refer claimants or
Advocate General (Civil Law), and the Deputy potential claimants inquiring about rights or procedures
Assistant Judge Advocate General (Admiralty and to the Judge Advocate General or other appropriate
Maritime Law), payment not to exceed $100,000.00 adjudicating authority listed in section 1213b. The
per claim; cognizant admiralty attorney will advise the individual
how to present a claim, the address the notice of claim
(2) Deputy Commander, U.S. Naval Forces, should be mailed to, and what, if any, evidence is
Europe; and Commander Sixth Fleet, payment not to required. An officer or employee of the Government
exceed $10,000.00 per claim for claims within the cannot act as agent or attorney for another in the
jurisdiction of their respective commands. prosecution of any claim against the United States. 18
U.S.C. § 205. See chapter VII for requests for legal
c. Settlement. Settlement is final when the assistance with claims against the United States.
claimant accepts payment and executes a release
from liability.
1216 ADJUDICATING ADMIRALTY
1214 STATUTE OF LIMITATIONS CASES AS FOREIGN CLAIMS

a. Suits under the Suits in Admiralty Act or the a. Foreign Claims Act. Admiralty claims
Public Vessels Act. For the court to have jurisdiction arising in foreign countries may be adjudicated
under the Suits in Admiralty Act or the Public Vessels under the Foreign Claims Act. (10 U.S.C. § 2734).
Act, suit must be filed within 2 years after the incident Such claims are not handled as foreign claims
on which the cause of action is based. This limitation without the prior authorization of the Deputy
cannot be waived administratively, nor is the statute of Assistant Judge Advocate General (Admiralty and
limitations tolled by filing a claim with the Government. Maritime Law).

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 b. Copy to JAG. If permission is granted for
an admiralty claim to be adjudicated under foreign
claims regulations, the Judge Advocate General shall be
provided a copy of the Foreign Claims Commission
proceedings and, if an award is made to claimant, with a
copy of the executed release.

PART D - AFFIRMATIVE ADMIRALTY CLAIMS

1217 AUTHORITY FOR AFFIRMATIVE settlement authority when the amount to be received does
CLAIMS SETTLEMENT not exceed $100,000.00. 10 U.S.C. § 7623. The Judge
Advocate General, the Deputy Judge Advocate General,
a. Generally. The United States may pursue the Assistant Judge Advocate General (General Law), and
affirmative admiralty claims for most admiralty incidents the Deputy Assistant Judge Advocate General (Admiralty)
and affirmative salvage claims. 10 U.S.C. § 7623 and may also exercise the Secretary's authority in settlements
10 U.S.C. § 7365. See also 32 C.F.R. part 752. not exceeding $100,000.00. Those individuals with
limited authority to settle admiralty claims against the
b. SECNAV authority. The Secretary of the Department of the Navy reflected in section 1213b(2) and
Navy has authority to settle, compromise, and receive (3) do not have corresponding affirmative claims
payment for claims by the United States for damage to settlement authority.
any property under the jurisdiction of the Department of
the Navy, if the damage was caused by a vessel or floating e. Compromise and settlement. The Secretary
object, or is otherwise within admiralty jurisdiction. of the Navy may consider, adjust, compromise, settle,
10 U.S.C. § 7623. The Secretary also has settlement and receive payment for any claim of the United States
authority for damage to property that the Department of for salvage services rendered by the Department of the
the Navy is responsible for, allowing subrogation claims Navy. 10 U.S.C. § 7363. Salvage claims are
accruing in favor of the United States. For example, when discussed further in section 1220.
the Department of the Navy leases a privately owned pier
which is damaged by a commercial vessel, and the lease 1218 STATUTE OF LIMITATIONS FOR
obligates the Department of the Navy to pay the pier AFFIRMATIVE CLAIMS
owner for the damage, or when naval property is damaged
while leased to private interests and the Department of the The United States has a 3 year statute of limitations to
Navy assumes the risk of loss or damage, the Department assert an affirmative claim or commence litigation for
of the Navy may recover from the tort-feasor. money damages arising from any tort, including admiralty
torts. 28 U.S.C. § 2415b and 32 C.F.R. part 752. This
c. Settlement authority. The Secretary's limitation has certain exclusions, such as lack of
settlement authority is limited to claims up to Government knowledge of the incident giving rise to the
$15,000,000.00 and not in litigation. 10 U.S.C. § claim, an inability to prosecute a claim due to declared
7623. Once suit is filed, the case comes under war or unavailability of the res or the defendant, and
Department of Justice's cognizance for settlement. various exemptions from legal process. 28 U.S.C. § 2416.
32 C.F.R. part 752. The Secretary is authorized to
execute a release on behalf of the United States upon 1219 AFFIRMATIVE CLAIMS
payment of the affirmative admiralty claim. ADMINISTRATION
Acceptance of payment and execution of a release by
the Secretary is final on all parties as to the United All claims by the United States for money damages
States' claim. arising from admiralty incidents should be timely and
pursued aggressively. The Judge Advocate General acts
d. Delegation. The Secretary may delegate on behalf of the Secretary in asserting and negotiating

12-17
affirmative admiralty claims.

PART E - MISCELLANEOUS

1220 SALVAGE ship or unit renders salvage assistance, the Secretary of

the Navy can administratively settle the claim against
a. Claims. Salvage claims may be filed against the private shipowner. 10 U.S.C. § 7363. Affirmative
the Department of the Navy for compensation for salvage claims are reported to and processed by the
towage and salvage services, including contract Assistant Supervisor of Salvage, USN. See
salvage, rendered to a naval vessel or other property NAVSEAINST 4740.4. Affirmative salvage claims
under the Department of the Navy's jurisdiction. The are referred to the Judge Advocate General only if the
United States may file claims for salvage services Assistant Supervisor of Salvage is unsuccessful. The
rendered by naval vessels or units. Regulations on Assistant Supervisor of Salvage normally asserts.
these claims are published at 32 C.F.R. part 752. Department of the Navy affirmative salvage claims on
Commanding officers of vessels or installations, or a per diem basis as an administrative convenience, but
U.S. Government or contract harbor pilots, have no the Government is not precluded from asserting its
authority to waive salvage fees or claims on behalf of affirmative claim on a salvage-bonus basis.
the Navy.
e. Offset. If the private shipowner seeks to offset
b. Salvor. A successful salvor is generally the Department of the Navy's per diem charges, in whole
entitled to: (1) reimbursement of expenses, such as cost of or in part, with a claim for damage to his ship allegedly
labor and materials expended; and (2) a bonus or reward caused by the salvaging naval vessel or its personnel, the
which is something less than the value of the salved per diem charge usually is withdrawn and the Department
property. Salvage awards encourage others to risk their of the Navy's claim reasserted on a salvage-bonus basis.
ships and lives to save another's property from the sea, but When a private shipowner pays the per diem salvage
discourage unnecessary or exaggerated service. There is charge and then, without prior notice, presents a claim for
no reward to salvage only human life; however, a salvor damage caused to his vessel during the salvage operation,
of life is entitled to an award from the value of any the prior settlement of the Government's salvage claim
property also salved. The crew of a salving vessel may precludes reasserting that claim on a salvage-bonus basis.
receive a share of the salvage award. A civilian crew that To avoid such liability, settlement of a naval affirmative
assists in salvaging a naval vessel has a separate cause of salvage claim is normally conditioned upon release from
action against the Government from that of the civilian any claim for damage to the private ship incurred during
vessel owner. Uniformed naval personnel cannot the salvage operation. Any damage to a private vessel
maintain suit for salvage services performed as part of during a salvage operation should be investigated under
their official duties. section 1205 and immediately reported to the Judge
Advocate General, who may arrange for a joint survey of
c. Suits for compensation. Suits against the the damage.
United States seeking compensation for salvage may be
maintained under the Public Vessels Act and the Suits in f. Finder's reward. A "finder's reward" may be
Admiralty Act. The Secretary of the Navy may pay paid for information leading to the recovery of certain
salvage claims under 10 U.S.C. § 7622. Salvage claims types of ordnance, mobile targets, aircraft, and
against the Department of the Navy are reported and oceanographic equipment. See NAVSEAINST 8500.1
investigated under sections 1203 through 1205, and and DOD Financial Management Regulation, Volume
processed under the procedures in Part C of this chapter. 5, Appendix D.
Both claims and suits against the United States for salvage
are subject to the 2 year statute of limitation. See 1221 TOWAGE AND PILOTAGE
section 1214.
a. Generally. The Department of the Navy, on
d. Administrative settlement. When a naval occasion, performs towage or pilotage services for

12-18
privately owned vessels. The two services are distinct, law, and Federal statutes. For example, the Foreign
especially for liability for damage caused by negligent Sovereign Immunities Act recognizes a foreign nation's
towing versus damage caused by negligent pilotage. immunity for sovereign or public acts of that nation in
b. Liability. When commercial firms perform United States territory and limits immunity for
towage or pilotage, they usually attempt to exempt commercial or personal acts. 28 U.S.C. §§ 1604-1611.
themselves from liability for damage by contract
clauses. Exemption clauses are generally successful in b. Jurisdictional process. Under customary
pilotage, but the courts have consistently held clauses international law, a nation's public war vessels are not
invalid that attempt to contract away liability for subject to jurisdictional process in any other nation; all
negligent towing. To protect the Department of the naval vessels (including MSC vessels) are immune
Navy from liability for negligent pilotage when a from arrest. If an attempt is made to arrest a naval
commercial firm would, by contract, be relieved of vessel in a foreign country, include NAVY JAG
liability, naval pilotage should be performed only upon WASHINGTON DC//11// as an information addressee
execution of the suggested contract in Appendix A-12- in the message report of the arrest attempt. If
d. requested, the Judge Advocate General will then assist
Department of Justice and Department of State to
1222 INTRAGOVERNMENT obtain the ship's immediate release.
ADMIRALTY INCIDENTS
c. Immunity. Government-owned merchant
a. Waiver doctrine. Potential claims for ships have limited immunity from jurisdictional process of
collisions between vessels and for other admiralty a foreign state. For example, a foreign government-
incidents involving property damage, when the owners owned vessel is exempt from U.S. jurisdiction if devoted
involved are the Department of the Navy and another to public use or government operations; however, the
Government agency, are subject to waiver. The waiver immunity of foreign government-owned merchant vessels
doctrine is based upon Comptroller General decisions that in competitive commercial transactions may be restricted.
appropriations of one Government department are not
available to pay the claims of another.
d. Waiver agreements. The United States has
b. Report of incident. When it appears only waiver agreements with the British and Canadian
Federal Government interests are involved, a report of the governments so certain maritime claims between the
admiralty incident must be made under sections 1203 United States and Great Britain or Canada, arising out of
and 1204; an investigation of liability and survey of the operation of public vessels of these respective
damage are not required. Upon receiving the initial report governments, are waived. See Maritime Transportation
of the incident, the Judge Advocate General confirms the and Litigation Agreement with Great Britain, 4 December
status of the vessels or property involved by 1942, 56 Stat. 1780, E.A.S. 282; and Waiver of Claims
correspondence with the other Government agency, and Involving Government Ships Agreement with Canada, 15
the waiver is made a matter of record. It is important to November 1946, 61 Stat. 2520, T.I.A.S. 1582. These
avoid unnecessary labor and expenditures when the claim admiralty incidents do not require the usual investigative
is subject to waiver. If in doubt on the status of the other report or survey for claims purposes.
vessel or property, request advice by rapid means from the
Judge Advocate General. e. Status of forces agreements. Admiralty claims
are also affected by Status of Forces Agreements. Under
1223 FOREIGN GOVERNMENT CLAIMS article VIII of the NATO Status of Forces Agreement, an
intergovernmental admiralty claim for damage to property
a. Report to JAG. Admiralty incidents involving owned and used by the armed forces of one contracting
naval vessels or property, and a vessel or property owned party, caused by a vessel of another contracting party, is
by a foreign government, must be reported to the Judge waived if either the damaging vessel or the damaged
Advocate General under sections 1203 and 1204. Action property was used in the operation of the North Atlantic
on such claims may be affected by treaties, international Treaty. Similarly, under article XVIII of the Status of

12-19
Forces Agreement with Japan, the United States and Japan provide a copy of the Department of the Navy's
mutually waive claims for property damage caused by investigative report of an admiralty incident to the Coast
members of their defense forces if the damaging Guard investigator when issues of civil liability are not
instrumentality or the damaged property was being used involved or have been settled. In other situations, the
for official purposes. A similar provision is in the Status Judge Advocate General may give the Coast Guard a copy
of Forces Agreement between the United States and the of the Department of the Navy report only if it is used
Republic of Korea. exclusively for Coast Guard purposes and not made part
of the public record. This practice assists the Coast
1224 COAST GUARD AND NATIONAL Guard's understanding of the incident, supports the
TRANSPORTATION SAFETY BOARD Department of the Navy's policy of interagency
INVESTIGATIONS cooperation, and preserves the Government's position on
claims or litigation.
a. Coast Guard investigations of marine
casualties. b. National Transportation Safety Board (NTSB)
investigations of marine casualties
(1) The Coast Guard routinely receives
reports of and investigates marine casualties or accidents (1) The NTSB, an independent Government
involving privately owned vessels. "Marine casualty or agency, promotes transportation safety by conducting
accident" includes collisions, strandings, groundings, independent investigations of accidents involving
founderings, heavy weather damage, fires, explosions, Government regulated transportation: air, highway,
failure of vessel gear and equipment, and any other rail, pipeline, and major maritime casualties. The
damage, which might affect the seaworthiness of the NTSB may conduct an investigation of any casualty
vessel. Public vessels of the United States, and all naval involving public and nonpublic vessels. The NTSB
vessels, are exempt from investigation even if involved in shall conduct an investigation when: the casualty
the incident under investigation. 46 C.F.R. part 4. Naval involves a Coast Guard and a nonpublic vessel, and at
personnel are not required to report a marine casualty least one fatality or $75,000.00 in property damage;
involving a public vessel to the Coast Guard, complete the Commandant of the Coast Guard and NTSB agree
any Coast Guard form or other document describing the that NTSB should investigate a casualty involving a
maritime incident, or participate in a Coast Guard public (e.g., a U.S. Navy) vessel and a nonpublic
investigation. The incident must be reported to the Judge vessel, and involving at least one fatality or $75,000.00
Advocate General under sections 1203 and 1204. in property damage; or the casualty involves
"significant safety issues relating to Coast Guard safety
(2) The Department of the Navy may assist functions." See 49 U.S.C. §§ 1101 - 1155, and 49
the Coast Guard with its investigation by sharing C.F.R. parts 845 and 850.
information from the Department of the Navy's own
investigation and making naval personnel available as (2) The NTSB investigation does not have priority
witnesses, but the Department of the Navy will not over other official inquiries into major marine
prejudice its claims or litigation. Information disclosed to casualties, such as the Department of the Navy's JAG
the Coast Guard normally becomes part of a public record Manual investigation. The NTSB conducts a
of the incident and is available to interests opposed to the simultaneous but separate investigation from the JAG
United States. The Judge Advocate General decides Manual investigation. After a major marine casualty,
whether to disclose a naval investigation to the Coast ensure original documents are preserved and witnesses
Guard and whether naval personnel will be made (after any exercise of their right to counsel) are made
available to testify at a Coast Guard investigative hearing. available to the Department of the Navy's investigating
Requests for such information, reports, or witnesses officer. Do not have any Government witnesses make
should be forwarded to the Judge Advocate General by written statements, create logs, or draw pictures or
rapid means. diagrams relating to the incident unless directed by the
investigating officer after consultation with the Judge
(3) The Judge Advocate General may Advocate General. However, the investigating officer

12-20
shall preserve all written statements, logs, diagrams, or contents of SECNAVINST 5820.8 (series), and the
other documents related to the incident then in limits of the POC's authority to provide information or
existence. The Judge Advocate General shall approve assistance to the NTSB or any other entity outside the
all requests for production of witnesses, documents, Department of the Navy. If questions arise that cannot
visits, expert analysis, or testimony. Release of be resolved by the appointed attorneys, the POC shall
information without approval is not authorized and immediately consult with the Judge Advocate General
may jeopardize Government interests in litigation for a determination on the issue. Also, a Department
arising from the incident. Availability of Government of the Navy liaison officer must be appointed as point
witnesses and evidence shall be coordinated by the of contact (POC) for NTSB and as a Navy
Department of the Navy liaison officer point of contact representative at any NTSB hearings. The POC should
(POC) (discussed in subparagraph (3)) and the be of the rank of 0-4 or above, technically competent
investigating officer with approval of the Judge in shipboard navigation and engineering skills, and not
Advocate General. NTSB has subpoena power, a crewmember of the vessel involved.
enforceable through the Federal courts, for the
production of persons and documents. The Department (4) NTSB may request to inspect documents and
of the Navy's policy is to cooperate with the NTSB's interview Department of the Navy crewmembers as
investigation as much as possible, while safeguarding soon as the vessel involved arrives at the pier. The
the rights of individuals involved in the incident, POC should insist that the JAG Manual and NTSB
protecting the Navy's attorney work-product and investigations proceed in an orderly fashion. The
critical self-analysis privileges, and preventing following is suggested as a reasonable sequence of
unnecessary disruption of the JAG Manual events:
investigation.
(a) When the ship returns to port, the
(3) Usually NTSB announces whether it will investigating officer for the JAG Manual investigation
investigate within 1 day after the incident occurs. An should have been assigned. If not transported to the ship
NTSB official in Washington, DC, notifies the type while at sea, the investigating officer should immediately
commander of the naval vessel involved by telephone, collect and review charts, logs, and other documents
although the group or squadron commander may aboard the ship, and may commence interviews of
receive initial notification. Upon notice of NTSB crewmembers.
involvement, notify the Judge Advocate General by
telephone of the initial notice from NTSB and any (b) Within a few days of the ship's return,
requests from NTSB. If available, the Judge Advocate and under arrangements made by the POC, the NTSB
General may assign an admiralty attorney to represent (generally three to four officials) arrives on board and
the interests of the Navy in potential litigation as is provided with copies of unclassified relevant
counsel at all NTSB hearings involving admiralty documents. Only after the investigating officer has
incidents. A judge advocate shall be assigned by the interviewed witnesses and the Judge Advocate General
nearest Trial Service Office, cognizant Area has consulted with the Department of Justice may
Coordinator or Type Commander to assist the NTSB officials conduct preliminary crewmember
admiralty attorney, or in the absence of an admiralty interviews or formal questioning of Government
attorney, shall consult the Judge Advocate General and witnesses at a hearing, but sworn statements should not
represent the Navy's interests in potential litigation be permitted. All Navy witnesses to be interviewed
before the NTSB Board. The POC shall consult with by the board should be advised by the POC or the
the appointed attorneys prior to making any statements assigned judge advocate that during any interview
or other representations on behalf of the Navy, with NTSB officials (regardless of the form), that they
questioning any witnesses, or otherwise providing have the right to be accompanied, represented or
information, documents, explanations, or advice of any advised by an attorney or non-attorney representative.
kind. Prior to any NTSB hearings or visits, the All Navy witnesses may seek advice from a judge
Admiralty and Maritime Law Division attorney or advocate assigned to a Naval Legal Service Office, but
assigned judge advocate shall brief the POC on the may not be represented by that counsel during an

12-21
NTSB hearing or questioning. Document review, resulting from the incident. The Judge Advocate
preliminary interviews, and hearings may take from General adjudicates claims under admiralty tort law for
two days to two weeks depending on the magnitude of property damage and natural resource damage
the incident. stemming from Navy oil spills. In this regard, it is of
utmost importance that only verified and accurate
(c) The JAG Manual investigation is completed information is released to state or private authorities.
as soon as possible. The convening authority forwards Otherwise, multiple inconsistent statements may
an advance copy to the Judge Advocate General under jeopardize the Government's interests in litigation. All
section 1205. statements made after the response is complete should
be made in a manner which will not jeopardize the
(d) The judge advocate who attended the NTSB interests of the United States.
hearing should get a copy of the verbatim transcript
and summary report of the hearing from the POC and d. Upon report of a spill, local commands are
forward them to the Judge Advocate General. customarily requested to prepare an ALR, which is
privileged as attorney-work product and critical self-
1225 MARITIME OIL/HAZARDOUS analysis (See section 1205b). This report is used
SUBSTANCE SPILLS exclusively by attorneys to defend the United States
and is not releasable to third parties at any time.
a. The Judge Advocate General strongly
encourages dissemination of information necessary for e. After an official report is forwarded to the
effective cleanup to authorities outside DOD while Judge Advocate General, a command may be
spill response and cleanup is underway. Requirements requested to release additional information to state
for timely and accurate reporting of oil and hazardous authorities concerning the cause of the spill. To ensure
waste spills to Federal, state, and local agencies are set the accuracy of information, causal and other
forth in OPNAVINST 5090.1B and MCO P5090.2A. information relating to an oil spill may be released only
The Federal On-Scene Coordinator should be given all after approval of the Judge Advocate General in light
available information to assist with a rapid and of the Government's interests in potential litigation.
complete cleanup. Similarly, state representatives have Such disclosures, if approved, should be identified or
a strong interest in ensuring a proper response to the marked as "Post-Accident Remedial Measure
spill. Priority is given to halting the spill and cleaning Information." Requests for witness interviews shall be
it up. All unclassified information necessary for that in accordance with the provisions and limitations of
purpose should be shared. SECNAVINST 5820.8 (series).

b. Shortly after cleanup is complete, a Naval 1226 SALVAGE, REMOVAL, DESTRUCTION,

activity may, consistent with response reports, confirm LOOTING, OR DESECRATION OF NAVY
information which was or might have been released SHIPWRECKS, AIRCRAFT WRECKS
incident to cleanup concerning whether a spill has AND OTHER SUBMERGED PROPERTY
occurred, the specific source of the spill, the type of
substance spilled, when the spill occurred, where the a. The attempted salvage, removal, looting,
spill occurred, the preliminary estimate of how much destruction or desecration of Navy shipwrecks, aircraft
oil was spilled, a description of the Navy's response wrecks or other submerged property is an admiralty
efforts, and estimates of amounts of oil recovered. incident and should be reported to the Judge Advocate
Information should be coordinated with cognizant General.
Navy regional environmental counsel and the Judge
Advocate General. b. Department of the Navy ship and aircraft
wrecks remain property of the United States without
c. After the response is complete, however, the regard to geographic location or age, and are not
command should have due concern for the effective considered to be abandoned unless a formal
defense of the United States in claims and litigation determination to abandon the wreck is made pursuant

12-22
to law.

12-23
 5800
[Date]

From: Commanding Officer, USS _________

To: LT ____________

Subj: ADMIRALTY LETTER REPORT INVESTIGATION OF _________

INVOLVING _____________ ON ___________.

Ref: (a) JAG Manual (Chapter XII)

1. Per reference (a), you are hereby appointed to investigate the circumstances surrounding
__________. During the investigation you will be under the direction and supervision of
_______________, JAGC, USN, Associate Admiralty Counsel, (202)685-5040 (DSN: 325-
5040). Consult with ____________ before beginning your inquiry or collecting any evidence. If
you have not already done so you should read reference (a) for additional guidance.

2. This investigation is being convened and your report is being prepared in contemplation of
litigation and for the express purpose of assisting attorneys representing interests of the United
States in this matter. As such, it is privileged and should be discussed only with personnel who
have an official need to know of its progress or results. If you have any doubt about the
propriety of discussing the investigation with any particular individual, then you should seek
guidance from _________ before doing so.

3. Investigate all facts and circumstances surrounding the incident, including the cause, resulting
injury and any fault, neglect, or responsibility therefor. Report your findings by letter format to
__________________ by _______ unless an extension of time is granted. Do not express any
opinions or recommendations unless __________ directs you to do so. Label your report "FOR
OFFICIAL USE ONLY: ATTORNEY-WORK PRODUCT" and take appropriate measures to
safeguard it.

X. X. XXXX

A-12-a
 SAMPLE ADMIRALTY LETTER REPORT
(Bold portions should always be included in every report)

FOR OFFICIAL USE ONLY: LITIGATION/ATTORNEY-WORK PRODUCT

5880
Ser
From: [command]
To: Judge Advocate General (Code 11)

Subj: ADMIRALTY LETTER REPORT OF [personal injury of shoreworker on date, etc.]

Ref: (a) PHONCON LT Exx (command)/LCDR Exx (OJAG 11) of 1 Jun 0x

Encl: (1) [Forward all relevant documentary and photographic evidence. Real evidence should
be photographed and the location of its preservation should be noted in the text. Photos must be
marked on reverse with description/photographer, etc. See JAGMAN para. 0215]

[Command Investigations under JAGMAN para. 0209 which include opinions and
recommendations SHOULD NOT BE CONVENED FOR ADMIRALTY INCIDENTS because
they are incompatible with the litigation process; See JAGMAN para. 0210 regarding comment
on command administration and management.] [If there are command operational, organizational
or management issues to resolve then the command should conduct a separate command
investigation, limited in scope, to address the specific command concerns. Navy Admiralty
Counsel (OJAG Code 11) should be consulted if any investigation other than the Admiralty
Letter Report is considered.]

1. Pursuant to reference (a), the following information is provided. This is a detailed factual
internal report of inquiry conducted after the occurrence of the subject event and under the
direction and supervision of a Navy Admiralty Counsel [if applicable, and the named command
judge advocate or other judge advocate assisting the on-scene investigation]. This report is
prepared in anticipation of litigation and for the expressed purpose of adequately preparing and
assisting attorneys representing the interests of the Navy and the United States in this matter.
This investigation was requested based upon an independent determination by the Navy
Admiralty Counsel that a report is necessary to properly represent the Navy and the U.S. in
litigation arising from this incident. As this report may only be released to those DON or
Department of Justice personnel with a demonstrated official need to know its contents, it was
not and shall not be disclosed to anyone without the requisite official need to know. Incident to
the subject investigation and preparation of the report thereof, the Department of the Navy has
relied on the protection afforded by the attorney-work product privilege.

2. [The form of the Admiralty Letter Report is not significant; that it includes all of the
information necessary to prepare and resolve the case is important. While JAGMAN Chapter 12

A-12-b(1)
Subj: ADMIRALTY LETTER REPORT OF [personal injury of shoreworker on date, etc.]

no longer contains a precise format for ALR form and content, the chapter is generally applicable
and paragraphs 1207 through 1210 provide helpful evidentiary requirements in various types of
cases.]

3. [Written summaries of witness interviews conducted at the request of the Admiralty Counsel
are preferred to statements written, adopted or signed by witnesses because interview summaries
may be withheld during litigation discovery. If witnesses prepared statements prior to
appointment of preliminary inquiry, do not destroy them; append them as report enclosures.]

4. The officer principally cognizant of this matter is [name and rank]; and may be contacted at
[telephone number] and/or via E-Mail at [E-Mail address].

X. X. XXXXX
LT, USN

A-12-b(2)
 5800
[Date]

From: Commander, _____________

To: CAPT _______________, USN

Subj: DUAL-PURPOSE LITIGATION REPORT INVESTIGATION OF

THE _______INVOLVING USS ___AND ________________ ON [Date]

Ref: (a) JAG Manual (Chapter XII)

1. Per reference (a), you are hereby appointed to investigate the circumstances surrounding the
collision involving _________________________. During the investigation you will be under
the direction and supervision of ________________________, JAGC, USN, (XXX) XXX-
XXXX (DSN: XXX-XXXX) and _______________, JAGC, USN, Associate Admiralty
Counsel, (202)685-5040 (DSN: 325-5040). Please consult these attorneys before beginning your
inquiry or collecting any evidence. If you have not already done so, you should read reference
(a) for additional guidance, especially section 1208.

2. This Dual-Purpose investigation is to be conducted and report of investigation prepared in

contemplation of litigation. The purpose of this internal report is to prepare attorneys to
represent the legal interests of the DON and the United States in litigation and to candidly and
forthrightly evaluate and improve, if necessary, Navy procedures involved in this incident. This
report is predicated on the forthright honesty of DON personnel to candidly self-evaluate
incidents to prevent recurrence of similar incidents and to further the public interest and safety.
Accordingly, this report may only be released to those DON or Department of Justice personnel
with a demonstrated official need to know its contents. Releasing this report to those without an
official need to know could hamper the honesty and candor of those who contributed to this
investigation or who may contribute to future investigations. This is a report of internal
investigation completed under the supervision of counsel. Incident to the subject investigation
and preparation of the report thereof, the DON has relied on the protections afforded by the
attorney-work product and critical self-analysis privileges. This investigation is privileged and
should be discussed only with personnel who have an official need to know of its progress or
results. If you have any doubt about the propriety of discussing the investigation with any
particular individual, then you should seek guidance from counsel before doing so.

3. During the course of your investigation you are directed to refrain from taking written or
recorded statements from any government witness. Instead, type summaries of witness
interviews. However, you shall collect and include any statements already in existence. Also
include all original charts, logs, photographs, videotapes, and other evidence. Label items as
discussed in reference (a).

A-12-c(1)
Subj: DUAL-PURPOSE LITIGATION REPORT INVESTIGATION OF
THE _______INVOLVING USS ___AND ________________ ON [Date]

4. Investigate all facts and circumstances surrounding the incident, including the cause, resulting
injury and any fault, neglect, or responsibility therefor. You are also directed to develop opinions and
recommendations that should focus on the safety and training issues involved to prevent recurrence
and further the public interest in safety. Label your report "FOR OFFICIAL USE ONLY:
ATTORNEY-WORK PRODUCT" and take appropriate measures to safeguard it.

5. Include the following language in the preliminary statement of your report: "This Dual-Purpose
investigation is to be conducted and report of investigation prepared in contemplation of litigation.
The purpose of this internal report is to prepare attorneys to represent the legal interests of the
Department of the Navy (DON) and the United States in litigation and to candidly and forthrightly
evaluate and improve, if necessary, Navy procedures involved in this incident. This report is
predicated on the forthright honesty of DON personnel to candidly self-evaluate incidents to prevent
recurrence of similar incidents and to further the public interest and safety. Accordingly, this report
may only be released to those DON or Department of Justice personnel with a demonstrated official
need to know its contents. Releasing this report to those without an official need to know could
hamper the honesty and candor of those who contributed to this investigation or who may contribute
to future investigations. This is a report of internal investigation completed under the supervision of
the Admiralty Counsel of the Navy and ___________, JAGC, USN, a judge advocate. Incident to the
subject investigation and preparation of the report thereof, the DON has relied on the protections
afforded by the attorney work product and critical self-analysis privileges. This investigation is
privileged and should be discussed only with personnel who have an official need to know of its
progress or results."

6. Report your findings of fact, opinions and recommendations pursuant to reference (a), chapter II,
to ___________________ by ____________unless an extension of time is granted.

X. X. XXXX

A-12-c(2)
 SUGGESTED FORMAT FOR PILOTAGE AND TUG SERVICES CONTRACT
(See Section 1221)

It is understood and agreed that the furnishing of pilotage and associated tug services by the
Department of the Navy for the vessel _________________ ___________ shall not be construed to
give rise to a personal contract between the named individuals signing this agreement; and

It is further understood and agreed that the Department of the Navy in furnishing any pilotage and
associated tug services shall have the benefit of all exemptions from and limitations of liability to which
the owner of a vessel is entitled under the applicable statutes of the United States; and

It is further understood and agreed that when any pilot or a captain of any tug furnished to or engaged
in the service of assisting a vessel making use or having available her own propelling power, goes on
board such vessel, or any vessel, he becomes the borrowed servant of the vessel assisted and her owner
or operator for all purposes and in every respect, including but not limited to the handling and navigation
of such vessel and in respect to any orders given to any assisting tugs, his services while so on board
being the work of the vessel assisted and not of the United States Navy and being subject to the
exclusive supervision and control of the ship's personnel; and

It is further understood and agreed that the assisted vessel and her owners will assume all liability for
any loss or damage (including that suffered or caused by any assisting tug) resulting from or arising out
of the negligence or fault of the pilot or assisting tug and that neither the United States Navy, nor any
pilot, nor any tug shall be liable, directly or by way of indemnity or otherwise, for any such loss or
damage; and

It is further understood and agreed that if any such assisted vessel is not owned by the person or
company ordering the pilotage and associated tug services, that such person or company warrants its
authority to bind the vessel and her owners to all provisions of the preceding paragraphs, and agrees to
indemnify and hold harmless the Department of the Navy, its agents, servants, employees and any
assisting tug or pilot from any claim and all damages and expenses that may be sustained or incurred in
consequence of such person or company not having such authority.

____________________________
(Signature)

____________________________
(Title)

FOR ____________________________
(Name of Ship)

A-12-d
 CHAPTER XIII
ENVIRONMENTAL PROTECTION

1301 PURPOSE 1309 POLLUTION CONTROL AND

ABATEMENT STATUTES
1302 SCOPE
a. Clean Air Act
1303 BACKGROUND b. Federal Water Pollution Control Act
c. Resource Conservation and Recovery
1304 ENVIRONMENTAL COMPLIANCE Act
AND INTERNATIONAL d. Comprehensive Environmental
OPERATIONS Response, Compensation, and Liability
Act
1305 RESPONSIBILITY e. Ocean Dumping Act

a. Generally 1310 STATUTES CONTROLLING

b. Commanding officers SPECIFIC SUBSTANCES
c. All personnel
a. Toxic Substances Control Act
1306 NOTICES OF VIOLATION AND b. Federal Insecticide, Fungicide, and
ENVIRONMENTAL LITIGATION Rodenticide Act
c. Marine Plastic Pollution Research
1307 COMPLIANCE and Control Act
d. Medical Waste Tracking Act
a. Generally e. United States Public Vessel Medical
b. Permits and fees Waste Anti-Dumping Act of 1988
c. Fees vs. taxes
d. Citations and fines 1311 STATUTES PROTECTING
e. Funding ANIMALS, HISTORIC PLACES,
AND WATER
1308 PROCEDURAL/PLANNING
STATUTES a. Endangered Species Act
b. National Historic Preservation Act
a. National Environmental Policy Act c. Safe Drinking Water Act
b. Coastal Zone Management Act
1312 ENVIRONMENTAL
COMPLIANCE IN THE
FEDERAL WORK PLACE

13-1
 CHAPTER XIII

ENVIRONMENTAL PROTECTION

1301 PURPOSE 1304 ENVIRONMENTAL COMPLIANCE

AND INTERNATIONAL OPERATIONS
The purpose of this chapter is to assist Navy and
Marine Corps commanders in their efforts to protect Naval activities in foreign countries and naval vessels,
and enhance the quality of the environment by strict aircraft, and vehicles operated in foreign countries will
adherence to all applicable law, regulatory standards, comply with any applicable Status of Forces
and planning requirements. Agreement (SOFA) and with environmental pollution
control standards of general applicability in the host
1302 SCOPE country. Requests by foreign officials for access to
naval installations, vessels, aircraft, and vehicles to
This chapter does not reprint detailed guidance readily monitor compliance with host country environmental
available elsewhere. It guides the reader to those standards, if not governed by the SOFA, should be
sources where necessary. The Environmental and referred to higher authority via the chain of command.
Natural Resources Protection Manual, OPNAVINST
5090.1, and Volume V of The Real Properties 1305 RESPONSIBILITY
Facilities Manual, MCO 11000.8B, set forth Navy and
Marine Corps policies and responsibilities respecting a. Generally. Compliance with the law and
environmental compliance. Common acronyms are applicable regulations are essential to preserving the
listed after the first discussion of a statute or term. environment. Naval activities should cooperate with
Appendix A-13-a contains a list of selected references. Federal and State environmental protection agencies
and comply with applicable standards and criteria
1303 BACKGROUND promulgated by such agencies. Commands will
comply with the reporting requirements established by
Statutes and regulations regulate the use of natural and superiors and notify the Judge Advocate General in
cultural resources and how we plan for their use. In accordance with Chapter VI of this Manual when there
many of these statutes, Congress has waived Federal is any likelihood of civilian court involvement. When
supremacy and sovereign immunity. Therefore, Navy it is considered impractical to comply with applicable
and Marine Corps operations are generally subject to requirements, commanders should refer the matter to
State and local procedural and substantive the Chief of Naval Operations (OP-45) or
requirements respecting the control and abatement of Commandant of the Marine Corps (MC-LFL-7), as
pollution, including requirements to obtain permits and appropriate, via the chain of command.
to pay reasonable service charges. Failure to comply
with applicable environmental laws may lead to b. Commanding officers. Consistent with
environmental degradation, injunctions that disrupt existing directives and policy guidance, commanding
operations, adverse publicity, and in some cases, officers should coordinate and cooperate with Federal,
payment of civil penalties. Additionally, some State, interstate, and local pollution control agencies,
environmental laws carry criminal penalties for and adhere to applicable standards for the control and
noncompliance, including possible criminal prosecu- abatement of environmental pollution. Commanders
tion of military and civilian personnel. Therefore, should consult with counsel on environmental issues.
familiarity with and adherence to applicable environ-
mental laws and regulations is essential. c. All personnel. Military and civilian
personnel should be encouraged to learn and apply
environmental laws and directives and be required to

13-2
report any instances of noncompliance. charge is first presented. Final positions on the legality
of new fees will be formulated in consultation with the
1306 NOTICES OF VIOLATION AND Department of Justice (DOJ) at the headquarters level
ENVIRONMENTAL LITIGATION in appropriate cases.

Notices of violation (NOV) or notices of c. Fees vs. taxes. In general, fees will be
noncompliance (NON) are issued by pollution examined to determine whether: (1) the charge in
abatement authorities for discrepancies. Because such question is imposed on all regulated entities without
notices may lead to penalties and environmental discrimination; (2) the charge is a fair approximation
litigation, they cannot be ignored. Such notices shall of the costs to the State or local authority implementing
be processed in accordance with OPNAVINST 5090.1 the program at the Federal activity; or (3) revenues
and Volume V, MCO P11000.8B. Process received in from the service charge only fund the administrative
connection with litigation filed or to be filed in State or costs of the associated program. Negative answers to
Federal court shall be processed in accordance with any of these inquiries suggest that the charge is a tax
SECNAVINST 5820.8, subject: Release of official rather than a fee or service charge, and the Navy may
information for litigation purposes and testimony by wish to contest it. Installations and activities
Department of the Navy personnel, and Chapter VI of questioning a charge should make it clear to the
this Manual. authority demanding payment that delay for review is
not a reflection of Navy resistance to regulatory action,
1307 COMPLIANCE but is necessary because of legal issues that must be
resolved before payment may lawfully be made.
a. Generally. Naval compliance depends on Should any agency impose a charge on which
an understanding of the laws and regulations as they environmental permit depends and refuse to issue or
affect the particular activity, on monitoring environ- maintain a permit needed for lawful operation of the
mental emissions, on identification and correction of facility pending legal review of the charge, the
deficiencies, and on compliance with procedural situation should be immediately reported to the Chief
requirements. Discussions of the various Federal of Naval Operations (OP-45) or the Commandant of
statutes and regulations are below at sections 1308 the Marine Corps (MC-LFL-7), as appropriate, and the
through 1313. Comptroller of the Navy.

b. Permits and fees. Congress has provided d. Citations and fines. Any citation by a
in most environmental laws that Federal facilities will regulatory agency for an alleged violation of any
be subject to State and local permit issuance require- substantive or administrative requirement or any
ments and to payment of reasonable service charges or attempt to levy a fine against a Department of the Navy
fees related to the administration of State and local facility should be reported immediately. See section
environmental requirements. Service charges related 1306.
to the Clean Water Act, Clean Air Act, hazardous
materials management, hazardous waste storage and e. Funding. Generally, activities fund
disposal, and underground storage tanks are among the routine, recurring requirements for environmental
types of charges that may be billed to an installation. compliance. Funding for cleanup of hazardous wastes,
Congress has generally not provided for the payment however, may come from the Defense Environmental
of taxes by Federal installations or activities to State Restoration Account (DERA). DERA is a separate,
and local governments. (The notable exception is the centralized account to fund cleanup of past hazardous
Low-Level Radioactive Waste Policy Act.) It, waste dumpsites. OPNAVINST 5090.1 provides
therefore, becomes important to distinguish between additional guidance.
those charges that are fees and those that are actually
taxes, before payment is made. Disbursing authorities
should consult with counsel when a fee or service

13-3
1308 PROCEDURAL/PLANNING (1) Almost every State has implemented
STATUTES the CAA through a State Implementation Plan (SIP),
and most SIP enforcement is done by the States.
a. National Environmental Policy Act. The Federal activities and installations generally must
principal Federal environmental planning statute is the comply with the SIP's requirements.
National Environmental Policy Act (NEPA). NEPA is
implemented by regulations issued by the Counsel on (2) Commanders whose units produce
Environmental Quality (CEQ). significant air emissions should expect inspections by
Federal or State agencies. These agencies may issue
(1) Environmental impact statement. an NOV for discrepancies, including monetary civil
NEPA requires commanders to prepare an environ- penalties. NOV's should be reported in accordance
mental impact statement (EIS) for all "major Federal with applicable instructions.
actions significantly affecting the quality of the human
environment." Although NEPA most frequently b. Federal Water Pollution Control Act.
applies to military construction projects, the EIS The Federal Water Pollution Control Act (FWPCA)
process can apply to operational activities as well. promotes improving the nation's surface water
resources. It provides for developing municipal and
(2) Consideration of environmental industrial wastewater treatment standards and a permit
effects. Commanders must consider the environmental system to control wastewater discharges into the
effects of Navy actions from initial planning through surface waters of the United States. The FWPCA,
implementation. Failure to adequately assess the often referred to as the Clean Water Act (CWA), was
potential environmental impact of proposed actions initially implemented by a Federal permit system, but
may result in significant delays or cancellation of significant amendments in 1987 increased State
activities or projects. An adverse environmental involvement.
impact does not automatically preclude the project so
long as a thorough assessment has been made. (1) Commands are responsible for
significant record-keeping requirements. States may
b. Coastal Zone Management Act. The conduct inspections and issue an NON when Federal
Coastal Zone Management Act (CZMA) permits a or State permits are violated.
State with a federally approved Coastal Management
law to review proposed Federal actions "directly (2) States define discharges. The
affecting the coastal zone" and evaluate the Navy's definition may include wastewater from pipes, ditches,
finding that the proposed action is consistent with the drains, or even "run-off."
State's coastal management plan. Often the CZMA
"consistency determination" is based upon factual c. Resource Conservation and Recovery
material in an environmental assessment/EIS. Act. The Resource Conservation and Recovery Act
(RCRA), also known as the Solid Waste Disposal Act
1309 POLLUTION CONTROL AND ABATE- (SWDA), regulates land disposal of solid waste.
MENT STATUTES RCRA has gradually become the Environmental
Protection Agency's (EPA) principal tool for regulating
a. Clean Air Act. The Clean Air Act (CAA) hazardous and toxic waste.
requires establishing ambient air quality standards and
developing Federal and State programs to achieve (1) Under EPA implementing regula-
those standards by controlling air pollution sources. tions, many solvents, lubricants, and other common
CAA provides for the individual States to assume chemicals become toxic/hazardous waste when they
control of these programs. are disposed of or stored after initial use.

13-4
 (2) NOV's, similar to those issued under
the CWA, are the most common enforcement method. c. Marine Plastic Pollution Research and
Control Act. The Marine Plastic Pollution Research
and Control Act, implements the International Con-
d. Comprehensive Environmental Response, vention on the Prevention of Marine Pollution
Compensation, and Liability Act. The Comprehensive (MARPOL Convention), and will eventually preclude
Environmental Response, Compensation, and Liability marine disposal of all plastics by seagoing naval units.
Act (CERCLA or SUPERFUND) is directed at Fleet directives have been issued to comply with the
abandoned or financially insolvent "hazardous waste statutory deadline.
sites." These sites, commonly referred to as Superfund
sites, are identified for clean up on a National Priority d. Medical Waste Tracking Act. The
List (NPL). Sites located on former and active Navy Medical Waste Tracking Act (Subtitle J of RCRA)
and Marine Corps shore activities are covered by the requires naval activities within participating States to
Installation Restoration Program (IRP). CERCLA also maintain records from "generation" to "disposal" on
establishes a requirement for immediate notification of the handling of all "medical waste" as defined by EPA,
the unpermitted release (land), discharge (water), or and to comply with State requirements for managing
emission (air) of designated hazardous substances. disposal of medical wastes.

e. Ocean Dumping Act. The Ocean Dump- e. United States Public Vessel Medical
ing Act, also known as the Marine Protection, Re- Waste Anti-Dumping Act of 1988. This law prohibits
search, and Sanctuaries Act (MPRSA) prohibits the dumping of potentially infectious medical wastes
transportation for the purpose of dumping material in into ocean waters, unless the health or safety of
the territorial sea and seaward without a permit, but individuals on board is threatened, or during time of
excludes sewage from vessels and effluent from war or declared national emergency. When disposal is
motor-driven equipment on vessels. The MPRSA is authorized under one of these two exceptions, it must
administered by EPA. EPA regulations, implementing be disposed of beyond 50 nautical miles from the
both the statute and certain international agreements, nearest land. Additionally, for surface public vessels,
specifically restrict the type of materials that may be the medical waste must be sterilized, properly
transported for disposal of at sea. Department of the packaged, and sufficiently weighted to prevent waste
Navy regulations also set forth requirements and/or from coming ashore after disposal; for submersible
limitations on the disposal of various materials at sea. public vessels, the waste must be properly packaged
and sufficiently weighted to prevent the waste from
1310 STATUTES CONTROLLING SPECIFIC coming ashore. OPNAVINST 5090.1, fleet directives,
SUBSTANCES and medical guidance should be consulted before any
medical wastes are disposed of at sea.
a. Toxic Substances Control Act. The
Toxic Substances Control Act (TOSCA) regulates 1311 STATUTES PROTECTING ANIMALS,
substances that pose "an unreasonable risk of injury to HISTORIC PLACES, AND WATER
health or the environment." Under TOSCA, EPA
regulates the manufacture, distribution, storage, and a. Endangered Species Act. The Endan-
disposal of only asbestos and Polychlorinated Biphe- gered Species Act (ESA) protects animals listed as
nyls (PCB). "endangered" or "threatened" and their habitats. ESA
is primarily enforced by criminal sanctions.
b. Federal Insecticide, Fungicide, and
Rodenticide Act. The Federal Insecticide, Fungicide, b. National Historic Preservation Act. The
and Rodenticide Act (FIFRA) regulates most industrial National Historic Preservation Act (NHPA) attempts to
uses of covered agents, including the unlawful disposal preserve places listed or eligible for listing on the
of insecticides. National Register of Historic Places. NHPA covers

13-5
the entire United States, its territories, and its posses-
sions. It is implemented by a review process involving
the "State Historic Preservation Officer" (SHPO) for
the State concerned and the Advisory Council on
Historic Preservation. Commanders should consider
the historic value of any place significantly affected by
naval activities and ensure that the NHPA is observed.

c. Safe Drinking Water Act. The Safe

Drinking Water Act (Subchapter XII of the Public
Health Service Act) establishes standards for water
distribution systems and protects surface and under-
ground sources of drinking water. The standards
implemented by EPA and State regulations apply to all
naval activities.

1312 ENVIRONMENTAL COMPLIANCE IN

THE FEDERAL WORK PLACE

The Occupational Safety and Health Act (OSHA), as

implemented by specific directives, requires the Navy
establish and maintain a comprehensive safety and
health program for civilian and military personnel.
Commanders should ensure an aggressive and
comprehensive occupational health and safety program
for their units.

13-6
 SELECTED REFERENCES

Department of Defense

Safety and Occupational Health Policy, DODD 1000.3 of 29 Mar 79

Oil and Hazardous Substances Pollution Prevention and Contingency Program, DODD 5030.41 of 1
Jun 77

Department of Defense Safety and Occupational Health (SOH) Program, DODI 6055.1 of 19 Aug 98

Secretary of the Navy Instructions

Department of the Navy Policy for Safety, Mishap Prevention, Occupational Health and Fire Protection Programs,
SECNAVINST 5100.10H of 15 Jun 99

Chief of Naval Operations Instructions

Environmental and Natural Resources Protection Manual, OPNAVINST 5090.1B of 1 Nov 94

Navy Safety and Occupational Health Program, OPNAVINST 5100.8G of 21 Jul 86

Navy Occupational Safety and Health (NAVOSH) Manual, OPNAVINST 5100.23E of 15 Jan 99

Marine Corps Instructions

Real Property Facilities Manual, Vol. V, MCO P11000.8B

Environmental Compliance and Protection Manual, MCO P5090.2A

United States Code

Clean Air Act, 42 U.S.C. §§7401-7642

Clean Water Act, 33 U.S.C. §§1251-1387
Coastal Zone Management Act, 16 U.S.C. §§ 1451-1464
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675
Emergency Planning and Community Right to Know Act, 7 U.S.C. § 11001-11050
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136-136y
National Environmental Policy Act, 42 U.S.C. §§ 4321-4370a
Ocean Dumping Act, 33 U.S.C. §§ 1301-1445
Resource Conservation and Recovery Act, 42 U.S.C. §§ 69001-6991i
Safe Drinking Water Act, 42 U.S.C. § 300f-300j-ll
Toxic Substances Control Act, 15 U.S.C. §§ 2601-2654

Executive Orders

Executive Order 12088, Federal Compliance with Pollution Control Standards

Code of Federal Regulations

Procedures for Implementing the National Environmental Policy Act, 32 CFR § 775
 A-13-a(1)

13-8
 CHAPTER XIV
PAYMENTS DUE MENTALLY INCOMPETENT MEMBERS,
PHYSICAL EXAMINATIONS OF SUCH MEMBERS,
AND TRUSTEE DESIGNATIONS

1401 PURPOSE

1402 SCOPE

1403 AUTHORITY TO APPOINT

TRUSTEES

1404 PROCEDURES

a. Competency Board
b. Records

1405 PROCEDURES FOR

DESIGNATION
OF A TRUSTEE

1406 TRAVEL ORDERS

1407 STATUS OF PAY

ACCOUNT

1408 EMERGENCY FUNDS AND

HEALTH AND COMFORT

1409 REPORTS AND

SUPERVISION OF
TRUSTEES

a. Accounting reports
b. Failure to submit a report
and default

14-1
 CHAPTER XIV

PAYMENTS DUE MENTALLY INCOMPETENT MEMBERS,

PHYSICAL EXAMINATIONS OF SUCH MEMBERS,
AND TRUSTEE DESIGNATIONS

1401 PURPOSE 1403 AUTHORITY TO APPOINT

TRUSTEES
Each year hundreds of servicemembers become
mentally incompetent due to injury or disease. DFAS-CL(GA) is authorized to act for the Secretary of
Members determined unfit for duty because of mental the Navy to appoint trustees to receive and administer
incompetence will be processed for placement on the Federal monies for members and to carry out the
Permanent Disability Retirement List (PDRL), provisions of this chapter.
Temporary Disability Retired List (TDRL) or
discharged. Disposing of the member's pay is an 1404 PROCEDURES
immediate issue confronting commanding officers,
especially if the member has dependents. This chapter a. Competency Board
explains how to appoint trustees to receive the
incompetent member's pay for the benefit of the (1) The commanding officer of the cognizant
member and dependents, as well as how to obtain naval medical facility will convene a board of not less
emergency funds pending the appointment of a trustee. than three medical officers or physicians, one of whom
Since the Defense Finance and Accounting Service will be a psychiatrist, when there is evidence that a
(DFAS) has assumed full responsibility for guardian member may be incapable of handling his financial
matters, this chapter is provided for informational affairs. The board will be convened in accordance with
purposes only. Chapter 18, Manual of the Medical Department
(MANMED). The board may include members of the
1402 SCOPE Reserve components on active or inactive duty. When
active duty Navy or Marine Corps members are
a. The Secretary of the Navy has authority to hospitalized in non-naval medical facilities, the Military
designate a trustee in the absence of notice that a legal Medical Support Office will ensure compliance with
committee, guardian, or other legal representative has Chapter 18, MANMED.
been appointed by a State court of competent
jurisdiction. 37 U.S.C. §§ 601-604. This authority has (2) DFAS-CL(GA) may request the commanding
been assumed by the Defense Finance and Accounting officer of any naval medical facility, or request the
Service-Cleveland Center (DFAS-CL), who has commanding officer of another service medical facility
delegated it to DFAS-CL, Office of General Counsel or administrator of a Department of Veterans Affairs
(DFAS-CL(GA)(phone (216) 522-5396, DSN 580- medical facility, to convene a competency board in
5396). Trustees receive the active duty pay and accordance with this section to determine the mental
allowances, amounts due for accrued or accumulated capability of a member to manage his financial affairs.
leave, and retired pay or retainer pay, that are otherwise
payable to a member found by competent medical (3) A finding of restoration of competency or
authority to be mentally incapable of managing his capability to manage personal and financial affairs may
affairs. be accomplished in the same manner specified in
Chapter 18, MANMED, except that the board may
b. "Member" as used in this chapter refers to: consist of one or two medical officers or physicians,
one of whom must be a psychiatrist.
(1) Members of the Navy or Marine Corps on
active duty (other than for training) or on the retired list (4) At least one officer on the competency board,
of the Navy or Marine Corps; and preferably the psychiatrist, will personally observe the
member and ensure that the member's medical record,
(2) Members of the Fleet Reserve or Fleet particularly that portion concerning his mental health, is
Marine Corps Reserve. accurate and complete.

14-3
 (5) The requirement to convene a competency the trustee, except for payment of the required bond,
board under this chapter is in addition to and separate will be paid from Federal monies received by the trus-
from the medical board procedures. Each board tee.
member signs the report of the board and certifies
whether the member is or is not mentally capable of (3) Forward recommendations to DFAS-
managing his financial affairs. After approval by the CL(GA) for appropriate action.
convening authority, the original board report is
forwarded to DFAS-CL(GA). 1406 TRAVEL ORDERS

b. Records The Chief of Naval Personnel or the Director, Person-

nel Management Division, Headquarters, Marine
The convening authority will forward the Corps, may issue travel orders to a member to appear
original of each board report to the Defense Finance before a competency board convened to determine
and Accounting Service-Cleveland Center, Office of whether the member is mentally capable of managing
General Counsel (Code G), Post Office Box 99806, his financial affairs. In the case of permanently retired
Room 2829, Cleveland, OH 44199-8006. If a member members, travel will be at no cost to the Government.
is found to be not mentally capable of managing his
financial affairs, the forwarding endorsement will set 1407 STATUS OF PAY ACCOUNT
forth the name, relationship, address, and telephone
number(s) of the member's next of kin, and any other a. Upon notification by the commanding officer of
information that will assist to identify a prospective the medical facility preparing the board report that a
trustee. member has been declared mentally incapable of
managing his financial affairs, DFAS-CL(GA) will
1405 PROCEDURES FOR DESIGNATION suspend the member's pay. Thereafter, DFAS-CL(GA)
OF A TRUSTEE or his designee will direct payment of monies to:

a. Upon receipt of a report of a competency board (1) The appointed trustee;

that a member has been found mentally incapable of
managing his financial affairs, AS-CL(GA) will initiate (2) The legal representative appointed by a State
action to appoint a trustee, provided no notice of court of competent jurisdiction; or
appointment of a committee, guardian, or other legal
representative by a State court of competent jurisdiction (3) Directly to the member following a
has been received by DFAS-CL(GA). DFAS-CL(GA) determination the member is capable of managing his
may request any Navy or Marine Corps activity to financial affairs.
appoint an officer to interview a prospective trustee and
make recommendations concerning suitability. DFAS- 1408 EMERGENCY FUNDS AND HEALTH
CL(GA) will provide the interviewing officer with AND COMFORT
complete instructions pertaining to the interview of the
prospective trustee, including the forms required to be Until a trustee is appointed, DFAS-CL(G) may appoint
completed by the prospective trustee that will be the member's designated next of kin to receive
returned by the interviewing officer to DFAS-CL(GA). emergency funds equal to, but not to exceed the amount
of pay due the incompetent member for a period of one
b. The interviewing officer will: month. These funds will be deducted from the
member's pay account and will be used for the benefit
(1) Determine whether the prospective trustee of the member and any legal dependents.
can obtain an appropriate bond as directed by DFAS-
CL(GA) or his designee; 1409 REPORTS AND SUPERVISION OF
TRUSTEES
(2) Ascertain that the prospective trustee is
willing to execute an affidavit acknowledging that all a. Accounting reports. The trustee designated by
monies will be applied to the use and benefit of the DFAS-CL(GA) will submit accounting reports annually
member and his legal dependents and that no fee, or at such other times as DFAS-CL(GA) or his
commission, or charge, for any service performed by designee directs. DFAS-CL(GA) will provide forms to

14-4
be used by trustees for the required accounting report.
The report will account for all funds received from the
Navy or Marine Corps on behalf of the member. When
payments to a trustee are terminated for any reason, the
trustee will submit a final accounting report to DFAS-
CL(GA). Upon approval of the final accounting report,
the trustee and the surety will be discharged from
liability.

b. Failure to submit a report and default. If an

accounting report is not received by the date designated
by DFAS-CL(GA) or an accounting is unsatisfactory,
DFAS-CL(GA) will notify the trustee in writing. If a
satisfactory accounting is not received by DFAS-
CL(GA) within the time specified, the trustee will be
declared in default of the trustee agreement and will be
liable for all unaccounted trustee funds. If a trustee is
declared in default of the trustee agreement, DFAS-
CL(GA) will terminate payments to the trustee and, if
necessary, a successor trustee may be appointed. The
trustee and surety will be notified in writing by DFAS-
CL(GA) of the declaration of default. The notification
will state the reasons for default, the amount of
indebtedness to the Government, and will demand pay-
ment for the full amount of indebtedness. If payment in
full is not received by DFAS-CL(GA) within an
appropriate period of time from notification of default,
the account may be forwarded to the Department of
Justice for recovery of funds through appropriate civil
action.

14-5
 INDEX

Accused--See also Parties

release of information concerning......... 0142 Affidavits--See Notarial acts: sworn instruments
request for immediate execution
of discharge................... 0165, A-1-1 Aircraft Accident Investigation……… 0241
service of decision of Court of
Criminal Appeals...................... 0164 Appeals
letters of censure or reprimand.... 0114g, 0116
Accuser....................................... 0129 nonjudicial punishment.............. 0116, 0117

Acknowledgements--See Notarial acts Apprehension

of retired, reserve, and discharged
Action on JAGMAN investigative reports-- personnel............................ 0123c
See Convening authority by civilian agents of Naval Criminal
Investigative Service ............. 0168
Administrative action, nonpunitive............ 0102
Arrest in quarters........................... 0111f
Administrative fact finding bodies--See Article 139
investigations; courts of inquiry; fact-finding Article 15--See Nonjudicial punishment
bodies; and investigations
Article 69, application for relief............ 0162
Admiralty claims
adjudication.................……………. 1216, 1217 Article 73, new trial petition................ 0163
administration..........................……. 1215
admiralty incidents.....................…... 1203 Article 138 complaints--See Complaints of wrong
affirmative claims................... 1217-1219
Coast Guard investigations................ 1224 Article 139 investigations
damages................................... 1209 action where offenders are members of
evidence............................ 1207, 1208 different commands.................... 0407
foreign claims...................... 1216 action where offenders are members of one
foreign government........................ 1223 command............................... 0406
intragovernment incidents................. 1222 claims not cognizable.................... 0403
liability of the Navy..................... 1212 complaint by the injured party and
National Transportation Safety Board investigation........................ 0405
investigations........................ 1224 effect of court-martial proceedings...... 0409
personal injury........................... 1210 limitation on claims..................... 0404
pilotage.................................. 1221 reconsideration.......................... 0408
private parties, dealings with............ 1211 redress of injuries to property.......... 0401
reports............................. 1204, 1205 scope.................................... 0401
salvage................................... 1220 statutory authority....................... 0402
settlement authority................ 1213, 1217
statute of limitation............... 1214, 1218 Article 1150 complaints--See Complaints of wrong
surveys................................... 1206
towage.................................... 1221 Attachments, warrant of........................ 0147

Advance Payments................... 0820 Attorney's fees

charged by civilian lawyers............... 0710
Advice
prior to imposition of NJP............... 0109 Bail--See also Delivery of personnel
after imposition of NJP.................. 0110e

Index-1
Boards and boards of investigation--See Article 139 claims; and redress of injuries to property; reports
investigations; fact-finding bodies; and investigations admiralty.................... 1204, 1205

Bread and water............................. 0111c Class A aircraft accident JAGMAN investigations

.......................................... 0241c
Censure--See also Administrative action and
Sentences.......................... 0105, 0114 Classified material, information...............
............ ..... ..... 0126, 0138d, 0144, 0150c, 0159a
Charges, forwarding of......................... 0128
Clear and Convincing Evidence Standard........ 0214b
Check list of information required when
investigating specific types of incidents Coast Guard investigations..................... 1224
admiralty--See also Chapter XII…..0243, 0245, 0246
aircraft accidents........................ 0241 Command investigations. See also checklist of information
Article 139 investigations-- required; death cases; line of duty/misconduct
redress of injuries to property........ 0401 investigations
automobile accidents...................... 0242 classification.......................... 0216b
claims for or against the government...... 0250 convening authority..................... 0210c
collisions, ship.......................... 0246, 1203 convening orders....... 0210d, 0211, A-2-c
death of reservists....................... 0252 convening authority endorsement......... 0208g
disease or injury of reservists........... 0252 costs................................... 0212c
explosions................................ 0244 disciplinary action...................... 0217
firearm accidents......................... 0253 evidence, types and safekeeping......... 0214c
fires..................................... 0248 experts and other technical support..... 0212b
flooding of a ship........................ 0247 GCMCA review............................ 0208h
health care incidents..................... 0251 internal report......................... 0208g
loss of government funds or property...... 0249 investigating officer................... 0212a
loss or stranding of a ship............... 0245 investigative report.............. 0216, A-2-c
pollution incidents...................... 0254a limitations on use...................... 0208b
postal violations........................ 0254d NCIS investigations………. 0203c, 0208d, 0216h
redress of injuries to property-- oaths..................……… 0213
Article 139 investigations............. 0401 photographs.…….. 0214c 0216h, 0232d, 0240b
reservists; injury, disease or privacy act compliance............ 0215, A-2-e
death of............................. 0252 purpose................................. 0208a
security violations..................... 0254c release of investigations................ 0219
ship collisions...................... 0246, 1203 retention of copies.............. 0208g, 0208h
ship flooding............................ 0247 routing and copies.……… 0208g, 0208h, 0218, 0240
ship loss or stranding................... 0245 signing................................. 0216g
sonic booms............................. 0250f standards of proof....................... 0214
vehicle accidents........................ 0242 time limits..... 0208f, 0208g, 0208h
witnesses and warnings.................. 0215d
Citizenship.................................... 0712
Companion court-martial cases............... 0151a
Civilian witness fees.......................... 0146
Competency boards............................. 1404
Claims generally--See also Admiralty claims; Article 139 See Mentally incompetent personnel
investigations; Federal tort claims; foreign claims; Medical
Care Recovery Act claims; military claims; personnel Complaints of wrong
claims; nonappropriated fund claims; "nonscope" law administrative discharge.................. 0304

Index-2
 application......................... 0303, 0306 copies of JAGMAN investigative reports;
area coordinator.......................... 0305 routing of….. 0280g, 0209g, 0210j, 0218, 1205
article 1150.............................. 0302 designation of by the Secretary of the
article 138............................... 0302 Navy.................................. 0120
authority................................. 0302 line of duty/misconduct cases............. 0230
boards.................................... 0304 major incident........................... 0210b
Chief of Naval Operations................. 0303e restriction on exercise of court-martial
cognizable.......................... 0303f, 0304 jurisdiction.......................... 0122
collateral attack......................... 0304 routing of JAGMAN investigative
commanding officer............. 0303, 0305, 0306 reports;..…….0208g, 0209g, 0210j, 0218, 1205
complainant................... 0305, 0306, 0307 Copies of JAGMAN investigative
copies to complainant............... 0306, 0307 reports; routing of………. 0208, 0209, 0218
court-martial....................... 0304, 0307
definitions............................... 0303 Copy, certified as true--See Notarial acts
delay................................. 0306, 0307
delegation................................ 0310 Correctional custody.......................... 0111
endorsements........................... 0306, 0308
enlisted evaluations...................... 0304 Counsel--See also Legal assistance program,
final actions....................... 0304, 0310 Attorneys
fitness reports........................... 0304 appearance before civil courts............ 0627
form...................................... 0306 Federal Magistrates Act.............. 0625, 0626
GCMA................................. 0303, 0308 individual military counsel........ 0130b, 0131
inquiry.............................. 0303, 0307 oaths, courts-martial...................... 0130b
intermediate superiors.................... 0305 pretrial confinement....................... 0127
joinder, misjoinder................. 0306, 0307
military records.......................... 0304 Courts-martial
nonjudicial punishment.................... 0304 accused
not cognizable...................... 0304, 0307 release of information concerning... 0142a
policy.................................... 0304 request for immediate execution of
reassignment of respondent or complainant….. 0305 discharge................. 0165, A-1-l
rebuttal.................................. 0307 service of decision of Court of Criminal
redress....................... 0303, 0306, 0307 Appeals........................... 0164
relief for cause.......................... 0304 accuser.................................. 0129
reports................................... 0307 application for new trial under Art. 73.. 0163
respondent.......................... 0303, 0305 application for relief under Art. 69..... 0162
return.................................... 0307 appointing orders--See Convening orders
Secretary of the Navy................... 0310 charges, forwarding of................... 0128
time limits......................... 0306, 0307 civilian witness fees.................... 0146
withdrawal................................ 0306 classified material/information..........
wrong............................... 0303, 0304 0126, 0138d, 0144, 0150c, 0159a
common or joint trial, review of.......... 0155a
Confinement companion cases tried separately.......... 0151a
changing place of......................... 0157 concurrent jurisdiction over major
Federal offenses....................... 0124
Convening authority convening authorities, designation of..... 0120
action on court-martial cases............. 0151 convening authority action......... 0151, 0152
action on JAGMAN investigation...0208, 0209, 0210 costs...................................... 0145
admiralty investigations................... 1205 expert witness fees........................ 0146
competency boards.......................... 1404 fleet reserve and fleet Marine Corps

Index-3
 reserve................................. 0123 units attached to a ship.................. 0122b
forfeitures............................... 0152a warrants of attachment..................... 0147
immunity.......................... 0138, A-1-i witnesses............................ 0138, 0146
indebtedness--See setoff
information, release of.................... 0142 Court of Criminal Appeals, service of
interpreters.............................. 0130d decision on accused........................ 0164
jurisdiction
concurrent over major Federal Courts and boards of inquiry. See also checklist of
offenses........................... 0124 information required; death cases; line of duty/misconduct
over reserve component investigations
personnel.......................... 0123 advance copies .......................... 0210l
over retired and discharged members..... 0123 advisors ............................... 0210d
military judge classification........................... 0216b
oaths................................... 0130 convening authority......……… 0210b, 0210c, 0210e
new trial petition......................... 0163 convening orders........................ 0210f
oaths...................................... 0130 convening authority endorsement......... 0210j
presentencing data......................... 0141 costs................................... 0212c
pretrial agreement......................... 0137 death cases.............................. 0237
pretrial restraint, reserve component disciplinary action............... 0210j, 0217
personnel................................ 0123 evidence, types and safekeeping.......... 0214c
promulgating orders................ 0155, 0156 experts/other technical support.. 0210d, 0212b
promulgation package, NMCAA decision..... 0155 major incident................... 0210a, A-2-a
public trial............................. 0143 membership....................... 0210b, 0210c
records of trial NCIS investigations..................... 0216h
authentication............................ 0150a oaths................................... 0213
disposition after review in field....... 0153 parties................................. A-2-b
filing.................................. 0154 photographs......……… 0214c, 0216h, 0232d, 0240b
release under FOIA............ 0505c, 0528b privacy act compliance............. 0215, A-2-e
security classification.............. 0150c release of investigations................ 0219
reserve component personnel retention................................ 0210j
inactive duty training convening review............................... . 0210k
authority....................... 0123 routing and copies…….... 0210j, 0210k, 0218, 0240
jurisdiction over.................... 0123d standards of proof....................... 0214
pretrial restraint over.............. 0123c subpoena power................ 0210b, 0210c
punishment limitations................ 0134 time limits....……… 0210i, 0210j, 0210k
release from active duty after trial.. 0134 witnesses and warnings................... 0214d
retention on active duty after trial... 0134
restrictions on exercise of jurisdiction
cases involving national security....... 0126 Customs, duties and import/export 1102
major Federal offenses.................. 0125
prior adjudication in civilian court... 0124 Damages
retired personnel....................... 0123 admiralty claims........................... 1209
units attached to a ship............. 0122b Article 139 investigations--redress
retired personnel........................ 0123 of injuries to property.... 0401, 0402, 0404
review................................... 0151 Federal tort claims........................ 0805
sentences, See Sentences foreign claims............................. 0813
setoff of indebtedness................... 0167 measure of................................. 0813
spectators, exclusion of................... 0143
superior competent authority, definition... 0129 Death cases, administrative investigations. See also

Index-4
command investigations; courts and boards of inquiry; civilian………. 0612
litigation-report investigations JAG authority.............................. 0606
autopsies.................................. 0235 personnel released by civil authorities on
civilians.................................. 0234 bail or their own recognizance............ 0611
courts and boards of inquiry......... 0211, 0237 personnel serving sentence of court-martial…. 0613
enemy action.............................. 0234a refusal of delivery..................... 0610b
"friendly fire" incidents................. 0235b reports
independent review........................ 0238 habeas corpus........................ 0615
investigation required.................... 0234b refused delivery..................... 0610
investigations not required............... 0234a serving sentence of state court...... 0614
limited investigation..................... 0234c stationed outside the U.S................ 0605
line of duty/misconduct determinations territorial limits of requesting State..... 0603, 0604
prohibited............................... 0236
major incidents...…….. 0203, 0210, 0237, A-2-a Detainers Act (18 U.S.C.A. App.)…………… 0607
NCIS notification......................... 0233b generally.................. 0607, 0610c, 0614b
photographs............................... 0240b Disposition (Routing) of JAGMAN
release of death investigations........... 0233d investigative reports……. 0208, 0209, 0210, 0218
routing, special considerations............ 0240 Effective date of sentence............... 0113, 0152
special considerations.................... 0233a
standard of proof.......................... 0239 Embarked units, convening courts-martial...... 0122b
time limits............................... 0233c
unavailability of documents............... 0235b Evidence
admiralty.................................. 1207
Definition (as used in JAG Manual) claims............................... 0804, 0805
action JAG designees....................... 0802 administrative investigations.............. 0214
claim (Foreign Claims Act)................. 0808
command investigation...................... 0208 Execution of sentences......................... 0152
court of inquiry........................... 0210
litigation report investigation............ 0209 Exhibits--See Evidence
line of duty............................... 0222
major incident.............. 0203, 0210, A-2-a Expanded legal assistance program--See legal assistance
misconduct................................ 0223 program
scope of employment....................... 0810d
service of process........................ 0616 Expert as member of investigations........................... 0212

Delivery of personnel--See also Service of process Expert witnesses....................... 01461, 0210e

agreement to deliver...................... 0608a
Federal authorities................... 0608b Extradition--See Delivery of personnel
State authorities..................... 0607
Article 14.................... 0607a, 0613 Extra duties.................................. 0111d
authority to deliver.................... 0608a
bail..................................... 0611 Federal Calims Collection Act--See general claims
beyond territorial limits of requesting State…. 0604
extradition, waiver of.................... 0604b Federal Magistrates Act................. 0625, 0626
fugitive warrants......................... 0604c
foreign authorities...................... 0609 Federal Tort Claims Act--See general claims
habeas corpus............................. 0615
interstate agreement on Detainers Act…..0607b, 0614 Fees
interviewing Naval personnel by Federal charged by civilian attorneys............. 0710

Index-5
 civilian witnesses in courts-martial...... 0146 records of trial........................... 0505
expanded legal assistance program......... 0711 responsibilities........................... 0505
legal assistance generally................ 0708
Fugitive warrants............................. 0604c
Firearms, injuries caused by................... 0253
General claims
Fires.......................................... 0248 action by receiving command................ 0805
action when suit filed..................... 0806
Flooding, ship................................. 0247 advance payments.......................... 0820e
Federal Claims Collection Act............. 0802a
FOIA--See Freedom of Information Act Federal Tort Claims Act................... 0802a
Foreign claims foreign claims--See generally foreign claims
admiralty claims......................... 1216 investigations....................... 0805
claims not payable....................... 0811 measure of damages................... 0812
claims payable........................... 0210 Medical Care Recovery Act................. 0802a
computing payment........................ 0812 Military Claims Act....................... 0802a
definition............................... 0807 responsibilities........................... 0802
filing the claim......................... 0809 scope...................................... 0801
foreign claims commissions............... 0813
processing of cases...................... 0814 Gifts--See Customs, duties, and import/
reports required......................... 0815 export restrictions
statutory authority...................... 0808
Grant of immunity........... 0138, 0139, 0140, A-1-i
Foreign criminal jurisdiction................ 1010
Guns, injuries caused by....................... 0253
Foreign environmental concerns............... 1006
Habeas corpus.................................. 0615
Foreign litigation........................... 1007
Humanitarian assistance........................ 1002
Forfeitures, Fines--See also Sentences
effective date.................... 0112b, 0152 Immigration.................................... 0712
initial review and action on............ 0151a
Immunity from prosecution or use of
Forms testimony.................................. 0139
court-martial............................ 0148
Incidents at sea............................... 1002
Freedom of Information Act
action by IDA.............................. 0511 Incompetency
action by release authorities.............. 0510 See Mentally incompetent personnel
affirmative claims files.................. 0528c
background................................. 0503 Indebtedness, setoff against pay............... 0167
citing FOIA................................ 0501
definitions................................ 0504 Information--See Freedom of Information Act and Privacy
exemptions................................. 0506 Act
fees....................................... 0512
litigation, requests when in............... 0525 Injury--See also Line of duty
mailing lists.............................. 0508
nonjudicial punishment results............. 0509 Insanity--See Line of duty
policy..................................... 0502

Index-6
International agreements....................... 1003 U.S., proceedings involving........... 0709d
non-lawyer personnel...................... 0705
International environmental concerns.......... 1006 privileged service........................ 0707
providers, legal assistance............... 0703
Interrogation of criminal suspects form....….. 0170, A-1-m purpose................................... 0701
records, office........................... 0707
Interstate Agreement on Detainers Act.. 0607b, 0613b referrals................................. 0710
scope..................................... 0701
Interviewing of naval personnel by Federal services provided......................... 0708
civilian investigative agencies........... 0612 supervision
of legal assistance program........... 0702a
JAG Manual investigations--See Ch. II of legal assistance officer........... 0702b

Judge Advocate General Letters of censure........ 0105, 0113c, 0114, A-1-a, A-1-g
Article 69, UCMJ petition................. 0162
new trial petition, action on............. 0163 Liaison with the U.S. Attorney................. 0624
permission for court-martial after civil
adjudication........................... 0124 Line of duty/misconduct investigations. See also command
investigations; courts and boards of inquiry; litigation-
Law of the sea................................. 1002 report investigations
checklist.................................. 0232
Lawful permanent resident...................... 0712 command investigation required............ 0229d
convening authority action................ 0230a
Legal Assistance Program disability retirement & severance pay..... 0230c
attorneys, legal assistance disease, alcohol & drug-induced........... 0226c
appearance before drug abuse................................. 0226
civilian courts............ 0708a, 0711 extension of enlistment................... 0230c
basic duties........................... 0708 forfeiture of pay......................... 0230c
fees, prohibition…………… 0710 GCMCA action.............................. 0230b
professional conduct................... 0704 health record entry....................... 0229c
compensation, generally................... 0710 intoxication............................... 0226
eligibility for........................... 0706 line of duty, definition of................ 0222
expanded legal assistance program......... 0711 loss of longevity & retirement multiplier.. 0230c
appearance before civilian courts..... 0711a mental responsibility...................... 0225
eligibility........................... 0711b misconduct, definition of.................. 0223
fees possible findings......................... 0224b
charged by civilian attorneys.......... 0710 preliminary inquiry required.............. 0229a
prohibited for legal assistance attorneys privacy act compliance.............. 0215, A-2-e
...................................... 0710 relationship, disciplinary action.......... 0228
files, case............................... 0707 relationship, line of duty & misconduct.... 0224
limitations on assistance refusal of medical/dental treatment........ 0227
subject to availability basis......... 0701d reporting results of preliminary inquiry.. 0229b
business related legal advice......... 0709a reservists, special considerations......... 0231
domestic relations cases.............. 0708a service member's rights................... 0230a
military criminal matters............. 0709b suicide attempts & gestures............... 0225c
opposing parties...................... 0709c unauthorized absence...................... 0222c
representation before civilian courts...0708a, 0711 VA benefits............................... 0230c
telephone inquiries................... 0709e warnings..... 0214d, 0215, 0220b, A-2-g
third parties, advice to ............. 0709f when required.............................. 0220

Index-7
 why required............................... 0221 medical exams, procedures for............. 1404
pay account, status of.................... 1407
Litigation report investigations. See also checklist of reports................................... 1409
information required; death cases; line of duty/misconduct statutory authority....................... 1402
investigations trustee
classification ........................... 0216b authority to designate................ 1403
consultation with judge advocate.….. 0209a, 0209b procedure for designation............. 1405
convening authority....................... 0209c reports............................... 1409
convening orders............. 0209d, 0211, A-2-d supervision of........................ 1409
convening authority endorsement........... 0209g
costs..................................... 0212c Military Care Recovery Act--See General claims
disciplinary action....................... 0218
evidence, types and safekeeping........... 0214c Military Claims Act--See General claims
experts and other technical support....... 0212b
FOUO markings............... 0209e, 0209g, 0209h Misconduct--See Line of duty
GCMCA review.............................. 0209h
investigating officer..................... 0212a Multiservice command
investigative report................ 0216, A-2-d appeal of NJP, authority to act on........ 0117c
NCIS investigations.......... 0203c, 0216h designation of NJP authority.............. 0106d
oaths..................................... 0213
photographs.......... 0214c, 0216h, 0233d, 0240b National security; cases involving
privacy act compliance.............. 0215, A-2-e definition of........................ 0126, 0159
purpose................................... 0209a disposition of............................. 0126
release of investigations................. 0219 immunity grants........................... 0138d
retention of copies........... 0209g, 0209h investigation required..................... 0126
routing and copies...…. 0209g, 0209h, 0218, 0240 notification required...................... 0126
signing................................... 0216g pretrial agreements........................ 0126
standards of proof........................ 0214 remission and suspension of sentences...... 0158
supervision by judge advocate............. 0209c
time limits... 0209f, 0209g, 0209h National Transportation Safety Board........... 1224
witnesses and warnings.................... 0214d
Naturalization................................. 0712
Major incidents
defined............................ 0210a, A-2-a Naval Criminal Investigative Service (NCIS)
death cases............................... 0237 apprehension by agents of.................. 0168
preliminary inquiry....................... 0203
procedures for...................... 0203, 0210 Naval operations............................... 1002
standard of proof........................ 0214
Naval warfare.................................. 1002
Marriage overseas.............................. 0712
New trial under Art. 73, UCMJ, petition for.... 0163
Medical Care Recovery Act--See General claims
Nonjudicial punishment
Mentally incompetent personnel, payments due acknowledgement of rights... A-1-b through A-1-d
authority to designate trustee............ 1403 advice
emergency funds........................... 1408 after imposition...................... 0110e
health and comfort........................ 1408 before hearing......................... 0109
interviewing officer duties and recommendation 1405 announcement of disposition................ 0115
appeals....................... 0116, 0117, A-1-f

Index-8
 authority to impose........................ 0106 Official records, production of
effective date and execution of punishments… 0113 certificates of full, faith, and credit.... 0529
guide for........................... 0110, A-1-e court order
hearing requirements....................... 0110 absence of............................. 0528
jurisdiction............................... 0107 response to............................ 0525
letters of censure......... 0114, A-1-a, A-1-g Privacy Act............................ 0523
mitigation................................. 0118
multiservice commander........... 0106d, 0117c Parties....................................... A-2-b
nonpunitive measures....................... 0111
officer NJP report........................ A-1-q Passport....................................... 0712
prior adjudication in civil court......... 0108b
procedures................................. 0110 Pay
punishments................................ 0111 forfeiture.......................... 0112, 0152a
record of punishment....................... 0119 setoff of indebtedness against............. 0167
refusal of................................. 0109 suspension of, mentally incompetent
remission.................................. 0118 personnel.............................. 1407
reserve component personnel, jurisdiction
over................................... 0112 Payments due mentally incompetent personnel
standard of proof......................... 0110b See Mentally incompetent personnel
successor in command, defined............. 0118a
suspension................................ 0118b Photographs
vacation of suspension.................... 0118d administrative investigations…..0214c, 0216h, 0232d,
0240d
Nonscope Claims Act--See General claims admiralty matters......................... 1207

Notarial acts Pilotage...................................... 1221

acknowledgements..................... 0906, 0908
copy, certified as true................... 0908j Political asylum.............................. 1005
Federal authority......................... 0902a
instructions Pollution............................... 1006, 1309
general................................ 0908
special.............................. 0910 Postal violations, investigation of........... 0802
legal effectiveness................. 0902, 0903c
non-Federal authority..................... 0903a Preliminary inquiry. See also checklist of information
notary logs................................ 0909 required; command investigations; courts and boards of
scope................................ 0901, 0904 inquiry; death cases; line of duty/misconduct investigations
seals...................................... 0908 consulting with judge advocate............. 0205
State laws, summary of..................... 0910 convening authority....................... 0203d
sworn instruments.................... 0907, 0908 format............................. 0203e, A-2-h
Uniform Law on Notarial Acts............... 0905 ISIC review............................... 0203i
Uniform Recognition of line of duty/misconduct cases............. 0229a
Acknowledgements Act…... major incidents.................... 0203g, A-2-a
0905 method of conducting...................... 0203e
witnesses......................... 0908g NCIS investigatons........................ 0203c
no further action......................... 0206
Nuclear weapons................................ 1002 options upon completion................... 0204
purpose................................... 0203b
Oaths.................................... 0130, 0214 reporting results......................... 0203h
time limits.............................. 0203f

Index-9
Preponderance of Evidence.................... 0214 Release of information concerning accused..... 0142

Pretrial agreements........................... 0137 Release of official information and testimony for litigation
purposes
Pretrial restraint............................ 0127 certificates of full faith and credit.... 0529
definitions.............................. 0524
Prisoners of war, claims by........... 0810d, 0811c medical and other records of civilian
employees............................ 0527
Privacy Act policy................................... 0522
background................................ 0514 production of official records in the
citing the Privacy Act.................... 0501 absence of a court order............. 0528
collection of information................. 0520 records in the custody of the National
definitions............................... 0515 Personnel Records Center............. 0526
disclosure accountings.................... 0519 relationship with FOIA and the Privacy
disclosure to others...................... 0518 Act.................................. 0523
policy.................................... 0513 responsibilities......................... 0525
Privacy Act statement..................... 0520
procedures................................ 0517 Remission of punishments
responsibilities.......................... 0516 courts-martial........................... 0158
safeguarding personal information......... 0521 nonjudicial punishment................... 0118

Privacy Act statement--See admiralty claims; Reporters and interpreters

Article 138 investigations; Article 139 courts-martial.......................... 0130d
investigations; claims; courts of Inquiry;
foreign claims; fact-finding body not required Reports
to conduct hearing; fact-finding body required admiralty.......................... 1204, 1205
to conduct hearing; grant of immunity; line of duty and mentally incompetent personnel........... 1409
misconduct; parties; Privacy Act; witnesses; and official summary court-martial................... A-1-
records p

Production of official records--See Official records Reserve component personnel, See Nonjudicial
punishment; Courts-martial
Promulgating orders, courts-martial.......... 0155
Retired personnel, See Courts-martial
Promulgation package, Court of Criminal
Appeals decision......................... 0164 Review
convening authority, court-martial....... 0151
Property, damage to--See Article 139 investigations relief, application under Art. 69 for.... 0162

Quarantine................................... 1002 Safety investigations................ 0241b, 0243b

Records--See Freedom of Information Act and Privacy Act Salvage...................................... 1220

Redress of injuries to property--See Article 139 Scope of employment......................... 0810d

investigations
Seals--See Notarial acts
Reduction in grade limitation, nonjudicial
punishment................................ 0111 Search and seizure forms....... 0170, A-1-n, A-1-o

Index-10
Search of vessel by foreign authorities...... 1002 Single service responsibility................ 0809

Security assistance.......................... 1004 Solatia...................................... 1010

Security violations, investigations of...... 0254c Sonic booms, investigation of............... 0250f

Self-incrimination........................... 0170 Spectators

courts-martial........................... 0143
Sentences
censure.................... 0114, A-1-a, A-1-g Statement regarding disease or injury....……. 0221b, A-2-g
confinement--See Confinement
convening authority action............... 0151 Status of Forces Agreements.................. 1009
discharge Statute of limitation
convening authority action.......... 0151a admiralty claims................... 1214, 1218
execution of......................... 0157 Article 139 investigations--redress of
immediate execution........... 0165, A-1-1 injuries to property................. 0404
execution of sentence.................... 0157 foreign claims........................... 0809
forfeiture............................... 0152
matters presented before sentencing...... 0141 Subpoenas--
national security cases................. 0159a See also Service of process.................. 1205
remission................................ 0158
suspension............................... 0158 Summary court-martial record of trial....... 0150d
vacation of suspension................... 0160
Surveys....................................... 1206
Service of process and subpoenas upon personnel of the
naval establishment--See also Delivery of personnel; Suspension of punishment
Subpoenas nonjudicial punishment.................... 0118
arising from official duty.............. 0616b court-martial sentence.................... 0158
foreign court service of process........ 0616c punitive letters......................... 0113c
interviewing personnel................... 0620
leave or liberty granted................ 0616d Sworn statements--See Notarial acts: sworn
prisoners................................ 0619 instruments
reports
habeas corpus........................ 0615b Temporary refuge.............................. 1005
service not allowed.................. 0616e
suits against the U.S................. 0621 Third party liability......................... 0812
witnesses
Federal courts........................ 0618 Tobacco--See Customs, duties, and import/export
prisoners............................. 0619 restrictions
State or local courts................. 0617
Towage........................................ 1221
Setoff of indebtedness against pay............ 0167
Trustee designations.......................... 1405
Ship See Mentally incompetent personnel
collision................................. 0246, 1203
fires..................................... 0248 Unauthorized absence.......................... 0222c
flooding.................................. 0247
loss or stranding........................ 0245 Uniform Law on Notarial Acts--See Notarial acts

Index-11
Uniform Recognition of Acknowledgements Act--See
Notarial acts

Vacation of suspension
nonjudicial punishment.................... 0118
court-martial sentence.................... 0160

Vehicle accidents, investigation of............ 0242

Vessels--See Admiralty claims

Visa........................................... 0712

Warning required when interviewing injured

service members................... 0220b, A-2-g

Warrants of attachment......................... 0147

Witnesses
administrative investigations............ 0214d
admiralty................................ 1210
civilian witness fees.................... 0146
courts-martial........................... 0146
expert witnesses......................... 0146
Federal courts........................... 0618
foreign nationals........................ 0146
immunity from prosecution......... 0138, A-1-i
notarial acts........................... 0908g
on behalf of the Federal Government...... 0618
prisoners as witnesses................... 0619
Privacy Act.............................. 0215
State and local courts................... 0617
travel expense and per diem.............. 0145

Wrongs, complaint of--See Complaints of wrong

Index-12
 SUMMARY OF JAGINST 5800.7D CHANGES

CHAPTER I

1. Section 0106. Adds language extending NJP authority to

Reserve Commanding Officers and Commanders on inactive duty
training.

2. Section 0109a. Adds a new requirement to advise an accused

facing NJP, who has obligated service from advanced education,
that he may be required to reimburse the cost of advanced
education assistance. This implements an ASN(M&RA) directive of
21 Sep 98 to ensure compliance with provisions of 10 U.S.C. §2005.

3. Section 0114. Changes cancelled SECNAVINST 5720.42D with DOD

Directive 5400.7, which was adopted to promote uniformity among
services in complying with FOIA.

4. Section 0119. Typographical changes to update new identifying

number for PERS-834 and to specifically mention the Marine
“LEGADMINMAN” Manual.

5. Section 0120. Updates list of GCMCA's.

6. Section 0123. Adds language on the responsibility for funding

reservists recalled to active duty for courts-martial so that
funding is charged to the appropriation used on the order for the
period during which the event necessitating recall occurred.

7. Section 0126. Adds language incorporating the definition of

national security case from section 0159, providing criteria to
determine if an incident should be designated as a national
security case, delineating a list of potential criminal offenses
typically involved in national security cases, identifying
National Security Case Disposition Authorities, and setting forth
applicable referral and reporting requirements.

8. Section 0131b(4). Section 0131b(4)(d) adds language to make

an IMC reasonably available if within a NLSO AOR, or permanently
assigned within 100 miles of proceeding situs. Section
0131b(4)(e) is a new paragraph making USMC counsel permanently
assigned to a USMC command reasonably available as IMC for
noncapital cases if they are outside the judicial circuit but
within 100 miles of proceeding situs. Section 0131b(4)(f)
provides an exception to section 0131b(4)(b) making, at the
discretion of CO, NLSO, an OIC available as an IMC under
exceptional circumstances.
 SUMMARY OF JAGINST 5800.7D CHANGES

9. Section 0137. Section 0137c adds language indicating that a

national security case is defined in section 0126. Section 0137d
adds language requiring pre-PTA notification of the possible
recoupment by the Government of advanced education assistance from
member.

10. Section 0138. Section 0138c is a typographical change to

notify commands to contact OJAG (Code 17) when requesting
testimonial immunity in national security cases. Section 0138d
directs compliance with renumbered section 0126.

11. Section 0139a. Changes “Code 11” to “Code 17”.

12. Section 0143b. Adds language to clarify that an

investigating officer may close an Article 32 hearing to the
public under the MREs applicable at an Article 32.

13. Sections 0144a and 0144b. Change cancelled “OPNAVINST

5510.1H” to “SECNAVINST 5510.36”, which is dated 17 March 1999.

14. Section 0145b. Adds a paragraph on responsibility for

funding, to include sources of funding, of reservists
involuntarily recalled to, or extended on, active duty in support
of courts-martial.

15. Sections 0148a and 0148b. Delete references to obsolete

forms and add new DD forms.

16. Section 0150. Changes cancelled “OPNAVISNT 5510.1H” to

“SECNAVINST 5510.36”, which is dated 17 March 1999.

17. Section 0151c. Adds language to clarify that enlisted

members may not sign SJAR/Legal Officer recommendation. Based on
cases of United States vs. Cunningham, 44 M.J. 758
(N.M.Ct.Crim.App. 1996), where court found it error for enlisted
person to sign SJAR, and United States vs. Aquino, 48 M.J. 842
(N.M.Ct.Crim.App. 1998), where court expressed concern over
Assistant SJA signing SJAR unless SJA absent.

18. Section 0152. Section 0152a concerning the collection of

forfeitures adjudged by a courts-martial removed as the result of
the guidance contained in Article 57, UCMJ. Sections 0152b(3) and
(5) replace the name “Bureau of Naval Personnel” with the name
“Navy Personnel Command”.

2
 SUMMARY OF JAGINST 5800.7D CHANGES

19. Section 0153b. Section 0153b(1) updates addresses and adds

language to clarify review pursuant to Article 64, UCMJ when
appellate review is waived. Section 0153b(2) updates the Naval
Council of Personnel Board’s (NCPB's) address and adds language to
require delivery of a record of trial copy to NCPB when the
approved sentence includes 12 months or more confinement. Article
64 discusses review, typically at command level, when appellate
review at either NMCCA (Article 66) or OJAG (Article 69) is waived
by the accused. See SECNAVINST 5815.3J regarding the increase
from 8- to 12-months confinement for triggering mandatory NCPB
clemency review.

20. Sections 0154b and 0154c. Typographical changes and address

change.

21. Section 0155. Section 0155e(3) reduces the number of

duplicate original promulgating orders and eliminates the
requirement to provide duplicate original or certified copies of
promulgating orders to CMC. Section 0155f changes are
administrative, not substantive.

22. Section 0157. Section 0157c, the reference to bread and

water or diminished rations as a court-martial punishment, is
removed in accordance with the 1995 MCM amendments, which deleted
old RCM 1003(b)(9) "Confinement on bread and water or diminished
rations", per Executive Order 12960 of 12 May 1995. Section 0157d
is renumbered to section 0157c. The new section 0157c(2)
increases the minimum confinement sentence requiring a copy of a
record of trial to NCPB to 12 months in accordance with SECNAVINST
5815.3J, which increased the mandatory clemency review from all
cases with approved sentence including 8 months confinement to all
cases with approved 12 months confinement. Section 0157(e) is
renumbered to section 0157(d). The new section 0157(e) adds a new
paragraph to provide guidelines on imposing a court-martial
sentence to hard labor without confinement.

23. Section 0158d. Typographical change from “8” to “12” months.

See above.

24. Section 0159. Deletes most of paragraph 0159a. This

language is now found at section 0126.

25. Sections 0161, 0163, 0164, 0165, 0166, 0167. Typographical

address changes. Section 0166 change reflects SECNAVINST
cancellation of OPNAVINST 5510.1H. Section 0167 updates the
reference for DOD Financial Management Regulation.

3
 SUMMARY OF JAGINST 5800.7D CHANGES

26. Section 0168. Adds language clarifying that NCIS may conduct
an investigation with or without command approval or request.
SECNAVINST 5520.3B states command approval is not required when
utilizing civilian employees of DON.

27. Section 0171. New section. Adds discussion of 10 U.S.C.

§ 2005 as it relates to SECNAV’s authority to recoup the cost of
Government-funded advanced education financial assistance not
repaid by obligated active duty service when the member is
voluntarily separating from the service or separating due to
misconduct. See Section 0109 regarding implementing ASN(M&RA)
directive of 21 Sep 98 to ensure compliance with provisions of 10
U.S.C. §2005.

28. Section 0172. Formerly section 0171. Section renumbered.

29. Appendix A-1-f. Removes language concerning "detention of

14-days pay" as a possible punishment at NJP from Accused's
Acknowledgement of Appeal Rights form.

30. Appendix A-1-j. Adds new language to the Results of Trial to

collect information required by Code 40 for NIBRS/DIBRS. Added to
comply with SECNAVINST 5800.14 reporting requirements (Sex
Offender Notification).

31. Appendix A-1-m. Adds language to the Suspect's Rights and

Acknowledgement/Statement that an accused has the right to stop an
interview at any time and request counsel. Adds cleansing warning
language and brings Suspect's Rights Advisement Form up-to-date
with current case law.

32. Appendix A-1-r. Adds all-purpose form for notifying service

members prior to making a personal decision that may result in a
requirement to reimburse the Government for advanced educational
financial assistance. See sections 0109 and 0171 regarding
implementing ASN(M&RA) directive of 21 Sep 98 to ensure compliance
with provisions of 10 U.S.C. §2005.

CHAPTER II

33. Section 0201. Administrative change updating Code 15 phone

numbers.

34. Section 0202. Section 0202b capitalizes “Article”. Section

0202b(6) adds the abbreviation “NCIS”. New section 0202d is added
discussing coordination with law enforcement investigations. Old
section 0202d is re-lettered to be section 0202e.

4
 SUMMARY OF JAGINST 5800.7D CHANGES

35. Section 0203. Deleted in its entirety. All following

sections renumbered.

36. Section 0203. Sections 0203a and 0203c are deleted in their
entirety. All following subsections renumbered. New section
0203a deletes the words indicating a preliminary inquiry is “the
foundation for subsequent exercise of the convening authority’s
(CA) discretion”. Sections 0203c and 0203e replace the
abbreviation “CA” with the word “commander”. Section 0203d is
added discussing preliminary inquiries into incidents involving
potential claims or litigation. Section 0203f provides additional
guidance on the commander’s responsibility for appointing and
conducting a preliminary inquiry, and adds a subsection (3) to
direct the convening authority to report a conclusion of convening
another type of investigation to the next superior officer in the
chain-of-command. Section 0203g is added discussing the action to
be taken by the commander who initiated the preliminary inquiry
and deletes subsections (1) and (2) in their entirety. Section
0203h replaces the abbreviation “CA” with the words “to exercise a
specific option under section 0204, or to reconsider a decision
made under that section” and deletes the rest of the remaining
language.

37. Section 0204. Section 0204a(2)(a) is deleted in its entirety

and all following subsections are renumbered. Section 0204a(3)
concerning LOD determinations is added. Section 0204b(3)(b) adds
the words “may be” and capitalizes “Article”.

38. Section 0208. Administrative changes updating references to

specific sections, replacing “Code 35” to “Code 15”, capitalizing
“Article”, and updating guidance and forwarding address for
investigative reports.

39. Section 0209. Section 0209a refers the reader to Chapter 12,
section 1205, for admiralty incident investigations when
litigation is anticipated. Section 0209c replaces “0210d(2)” with
“0209d(2)”. Section 0209g updates references to specific
sections, updates Code 15’s address, and deletes the requirement
to send a copy of a medical care incident to the Navy Inspector
General.

40. Section 0210. Sections 0210b, 0210d, and 0210h adds guidance
concerning non-voting members on a Courts of Inquiry. Section
0210j adds language to permit a higher authority to direct further
review of Courts of Inquiry cases as necessary.

5
 SUMMARY OF JAGINST 5800.7D CHANGES

41. Section 0211. Administrative change replacing “0204c” with

“0202d”.

42. Section 0212. Administrative change replacing “0242c” with

“0241c”.

43. Section 0214. Section 0214b(2) adds language defining the

clear and convincing standard of proof. Section 0214c(5)
capitalizes “Article” and replaces “Code 35” with “Code 15”.
Section 0214d(2) replaces “0221” with”0220”.

44. Section 0216. Sections 0216h(2) and (4) add language to

clarify that neither polygraph results and/or reports, nor an
individual's refusal to take a polygraph, may be included in
investigative reports. Section 0216f replaces “0218” with “0217”.

45. Section 0217. Administrative change capitalizing “Article”.

46. Section 0219. Administrative changes updating references to

specific sections.

47. Section 0220. Section 0220b adds new paragraph requiring a

line of duty determination in death cases. Section 0220c is the
renumbered section 0220b.

48. Section 0221a. Majority of section is deleted and language

is added requiring line of duty determinations for SBP benefits.

49. Section 0222. Sections 0222a and 0222c add language

requiring line of duty determinations in death cases. This
section implements Section 642, National Defense Authorization Act
for Fiscal Year 2002, Public Law 107-107, December 28, 2001 (NDAA
2002), which expanded benefits and coverage under the Uniformed
Services Survivor Benefit Plan (SBP). Specifically, the new law
modified the SBP program in two important ways. First, SBP
benefits are payable to a qualified survivor when an active duty
service member dies in the line of duty, regardless of whether the
service member was retirement-eligible at the time of death.
Second, there is an increase in the SBP annuity payable to a
qualified survivor if the active duty service member dies in the
line of duty. Section 0222d(2) replaces “0221” with “0220”.

50. Section 0223. Section 0223a adds language referring reader

to sections 0225c and 0236 for death cases. Section 0223b adds
the words “or death” and replaces “0215” with “0214”.

6
 SUMMARY OF JAGINST 5800.7D CHANGES

51. Section 0225. Adds the word “suicide” to the language in the
paragraph.

52. Section 0229. Refers the reader to section 0236d for LOD
determinations in death cases, replaces “0221” with “0220”, and
deletes the parenthesis around “See Chapter 16, Manual of the
Medical Department”.

53. Section 0230. Adds the words “into the circumstances behind
the disease or injury, (see Part F for death cases)”, capitalizes
“Article”, and replaces “0222” with “0221”.

54. Section 0232. Administrative changes updating references to

specific sections.

55. Section 0233. Administrative changes replacing “Code 35”

with “Code 15”, updating Code 15’s number, and updating references
to specific sections.

56. Section 0234. Administrative changes updating references to

specific sections.

57. Section 0236. Deletes old sections 0236a and 0236b and adds
language concerning the SBP program. This section (like 0223a
above) implements Section 642, NDAA 2002, which expanded benefits
and coverage under the SBP. Specifically, the new law modified
the SBP program in two important ways. First, SBP benefits are
payable to a qualified survivor when an active duty service member
dies in the line of duty, regardless of whether the service member
was retirement-eligible at the time of death. Second, there is an
increase in the SBP annuity payable to a qualified survivor if the
active duty service member dies in the line of duty.

58. Section 0241. Administrative changes updating references to

specific sections.

59. Section 0242. Administrative changes updating references to

specific sections.

60. Section 0244. Administrative changes updating references to

specific sections.

61. Section 0246. Section 0246a deletes a majority of the

section and directs the reader to Chapter XII for required
investigations and guidance on admiralty incidents. Section 0246b
changes the introductory sentence to include reference to

7
 SUMMARY OF JAGINST 5800.7D CHANGES

consultation with a JAG per section 1205a. Section 0246c is

deleted and section 0246d is renumbered as section 0246c.

62. Section 0248. Administrative changes updating references to

specific sections.

63. Section 0249. Administrative changes updating references to

specific sections.

64. Section 0250. Administrative changes updating references to

specific sections and replaces “Code 35” with “Code 15”.

65. Section 0254. Section 0254a(11) replaces “0251” with “0250”.

Section 0254c replaces “OPNAVINST 5510.1 series” with “SECNAVINST
5510.36, Chapter 12. Section 0254e adds a new paragraph directing
the reader to separate Navy and Marine Corps references for
conducting investigations of alleged discrimination or sexual
harassment.

CHAPTER III

66. Section 0304a. Section 0304(a)(3) adds language indicating

the recommendation for a Navy Enlisted Classification (NEC)
removal in a final act. Section 0304(a)(6)(a) deletes the
reference to 10 U.S.C. section 1183. Section 0304 (a)(6)(b)
deletes the word “and”. Section 0304(a)(6)(c) adds language for
detachment for cause proceedings. Section 0304(a)(6)(d) adds
language for personnel detailing decisions where member has had
opportunity for flag or general officer review.

67. Section 0305c. Adds new section 0305c(4) on reviewing

complaints from joint commands.

68. Section 0306. Section 0306c adds language indicating the

complaint should specify the wrongs alleged and redress requested.
Section 0306d provides information regarding forwarding of the
complaint. Section 0306f changes “2” to “two”.

69. Section 0307. Section 0307b adds the language “the complaint
fails to satisfy the requirements of subsections 0305a and b”,
replaces “0305a and b” with “0305a or b”, and replaces “requests
improper relief” with “makes no proper request for relief”.
Section 0307c deletes parenthetical reference to the Chief of
Naval Personnel and the Commandant of the Marine Corps. Section
0307e is a header change and also adds language directing
complainants to submit rebuttals through their commanding
officers. Section 0307k is renumbered to be section 0307j and

8
 SUMMARY OF JAGINST 5800.7D CHANGES

adds additional language requiring identification of a point of

contact and enclosing the GCMA checklist. Section 0307j is re-
lettered to be 0307k and has a new header and adds language
indicating that the GCMA obligation to advise a complainant in
writing of his action taken may be done by providing complainant a
copy of the GCMA letter to the SECNAV.

70. Section 0310g. Deletes the title “Principal Deputy Assistant

Secretary of the Navy” and replaces it with the title “Deputy
Assistant Secretary of the Navy”, consistent with ASN(M&RA)
letters of 2 Aug 99.

71. Appendix A-3-a. Adds language concerning the information

needed in a Complaint of Wrongs package.

72. Appendix A-3-b. Adds language in the seventh check-block

clarifying that an NEC removal is considered a final action and
renumbers Section 0307j to 0307k.

73. Appendixes A-3-d and A-3-e. The appendix page numbers were
switched. The new A-3-d revises the checklist in its entirety.

CHAPTER IV

74. Section 0406. Section 0406b replaces the word “action” with
“recommendation” and the words “That officer’s” with “The
OEGCM’s”. Section 0406c adds “(Code 15)” and replaces the words
“paragraph 126h(2)” with “Rule for Courts-Martial 1003(b)(2)”.

75. Section 0407b. Administrative change adding “Code 15”.

CHAPTER V

76. Section 0501. Administrative changes updating the references

to SECNAVINST 5720.42 and DODDIR 5400.7.

77. Section 0502. Administrative changes updating reference

information.

78. Section 0503. Adds language regarding release of FOIA

records to the public that are likely to become the subject of
subsequent FOIA requests for substantially the same records.

79. Section 0504. Administrative changes updating the references

to SECNAVINST 5720.42 and DODDIR 5400.7.

9
 SUMMARY OF JAGINST 5800.7D CHANGES

80. Section 0505. Section 0505b(1) adds language requiring

commands to search for requested records that are in an electronic
format. Section 0505b(3) requires commands to provide the
requested record in the form or format requested if the record is
reasonably reproducible in that form or format. Section 0505c is
an administrative change updating reference information. Section
0505d reflects the new 20-day response time for FOIA requests and
provides for multi-track processing of requests.

81. Section 0506. Section 0506b(1) adds the words “(low

(b)(2))”. Section 0506b(2) adds the words “(high (b)(2))”.
Section 0506g updates the reference to 10 U.S.C. § 552(b)(7).

82. Sections 0508a and 0508b. Indicates requests for base

housing addresses, names, and duty addresses should be denied.

83. Section 0510. Reflects new 20-day response time for FOIA
requests.

84. Sections 0511b(1) and 0511b(2). Require that reasonable

effort be made to estimate the volume of denied records.

85. Section 0512. Administrative change updating the reference

to SECNAVINST 5720.42.

86. Section 0518f. Indicates members of Congress acting on

behalf of constituents are allowed access to same information the
constituent would be entitled to.

87. Section 0527. Administrative change updating the reference

to SECNAVINST 5720.42.

88. Section 0528. Section 0528a is an administrative change

updating the reference to SECNAVINST 5720.42. Section 0528b(1)
changes “Code 33” to “Code 15”. Section 0528b(3) changes “Code
32” to “Code 13”.

89. Appendix A-5-a. Updates contact information.

CHAPTER VI

90. Section 0603. Adds language providing that the cognizant

Fleet Commander may issue guidance authorizing local commanders to
deliver members to civil authorities acting without a warrant
under conditions in which state law permits warrantless arrest.

10
 SUMMARY OF JAGINST 5800.7D CHANGES

91. Sections 0606a and 0606c. Administrative changes updating

contact information.

92. Section 0610. Administrative change deleting section 0610c.

93. Section 0611. Adds language requiring servicemember be

advised to immediately notify his command when ordered by a court
not to leave the jurisdiction and provides guidance on using no-
cost TAD to keep the service member in that jurisdiction.

94. Section 0612. Administrative change updating NCIS title.

95. Section 0613. Section 0613a deletes the reference to “under

Article 14, UCMJ” so that the JAG can monitor all cases in which
delivery is refused. Section 0613b replaces the reference to “the
Director of the Bureau of Prisons” since that Director does not
coordinate transfer of prisoners to “the cognizant commanding
officer of the prisoner”.

96. Section 0616a. Adds language to clarify that the section is

for service of civil process and such service may occur by process
server or law enforcement officer from in or out-of-state. Also,
includes the Trial Service Office as a point of contact instead of
Naval Legal Service Office.

97. Section 0618. Administrative change updating information on

the DOD Financial Management Regulation.

98. Section 0620. Adds language providing information on the

processing of depositions and subpoenas requesting testimony from
Department of Defense personnel.

99. Appendix A-6-c. Adds language specifically identifying Code

14 as the "To" addressee and adds “ISIC” in the “copy to” line.

CHAPTER VII

100. Section 0706b. Adds language indicating that members of

Reserve components recalled to active duty, and their dependents
are eligible for legal assistance for a period of time after their
release from active duty per 10 U.S.C. § 1044(a)(4) and replaces
“Soldier’s and Sailor’s Civil Relief Act (SSCRA)” with
“Servicemembers’ Civil Relief Act (SCRA)” (SSCRA is changed to
SCRA in section 0708a(8) as well).

101. Section 0712. Adds information on immigration and

naturalization, previously covered under the International Law

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 SUMMARY OF JAGINST 5800.7D CHANGES

section of the JAGMAN, because Code 16 took over this

responsibility from Code 10. In addition, the changes reflect
recent changes in the law and the Executive Order allowing for
expedited filing for aliens who serve in the U.S. Armed Forces
during periods of military hostilities and the expedited
processing agreement signed between DOD and INS.

CHAPTER VIII

102. Section 0802. Section 0802b adds the word “Investigations”

to Code 15 title and replaces the words “established to” with the
word “that”. Section 0802d adds new paragraph referring the
reader to Chapter XII for admiralty claims and identifying the
DAJAG (Admiralty and Maritime Law) as responsible for all
admiralty claims in the Navy.

103. Section 0803. Deletes all information and refers readers to

Chapter II for administrative investigations.

104. Section 0804. Deleted in its entirety. All following

sections renumbered.

105. Section 0808. Sections 0808a and b replaces the word

“Foreign Claims Act” with the abbreviation “FCA”. Section 0808c
moves the location of the stated purpose of Congress language.

106. Section 0809. Section 0809c(4) replaces the date “3 June

1987” with the date “9 June 1990”. Section 0809d adds the word
“and” after the words “authorized agent” in the first sentence.

107. Sections 0810a and b. Replaces the word “Foreign Claims

Act” with the abbreviation “FCA”.

108. Section 0811c. Adds the word “or” and deletes the words “or
property damage” in the first sentence.

109. Section 0813. Section 0813a adds language clarifying the

purpose of a Foreign Claims Commission. Section 0813f(1) adds
language indicating that a Commission may pay or deny claims
within the limits of its adjudication authority, or forward
recommendations to the appropriate higher authority. Section
0813f(2) adds language indicating that a Commission may pay or
deny claims in whole or in part within the following limitations.
Section 0813f(3) revises reference to various Chapter 8 sections.

110. Section 0814. Section 0814b adds the words “if applicable”
in the second sentence. Section 0814d(2) adds language indicating

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that a Commission shall pay or deny claims within the limits of

its adjudication authority, or forward recommendations to the
appropriate higher authority. Section 0814d(4) adds the words
“its decision”. Section 0814d(5) adds the words “approving the”
and deletes the words “recommending approval”. Section 0814d(6)
adds language indicating the Commission must explain its decision
to pay or deny a claim. Section 0814d(7) adds the words “This may
be”.

111. Section 0815g. Section 0815g(6) adds the words “award or”.
Section 0815g(7) adds the words “decision or”. Section 0815e
replaces the word “Proposed” with the word “The” and adds the
words “approved or”.

112. Section 0816. Section 0816a replaces the words “recommends

payment or denial of” with the words “pays or denies”. Section
0816b replaces “0818” with “0817”.

113. Section 0817. Section 0817a is deleted in its entirety.

Section 0817b is re-numbered 0817a. New section 0817a(1) replaces
the word “General” with the word “Civil” and adds the word
“Investigations” after the word “Claims”.

114. Section 0818. Adds the word “Commission” and deletes the
words “appointing authority”.

115. Section 0819a(2) and (3). Replaces the word

“recommendation” with the word “decision”.

116. Section 0820. The changes update information on where to

submit vouchers for foreign claims and identify the proper
accounting data required on foreign claim vouchers. Section 0821c
adds new subparagraph providing guidance on claims arising in
foreign countries.

117. Appendix A-8-a. Adds language for the new sample Settlement
Agreement.

CHAPTER X

118. Section 1002. Administrative changes updating reference

information.

119. Section 1003d. Administrative change adding “CJCSI

2300.01A”.

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120. Section 1004c. Administrative changes updating date and

information contained in DOD Dictionary of Military and Associated
Terms.

121. Section 1005. Section 1005c is an administrative change

replacing “to” with “of”. Section 1005f updates the reference to
a Marine Corps Instruction.

122. Section 1006. New language added concerning Foreign

Environmental Law.

123. Section 1008. Refers readers to section 0712 of Chapter

VII.

124. Section 1010. Sections 1010a, e(2), f, and i are

administrative changes updating reference information. Section
1010j is a new section discussing the Military Extraterritorial
Jurisdiction Act of 2000.

125. Section 1013. Adds the words “from foreign territory” and
updates reference information.

126. Section 1014. Updates reference information.

CHAPTER XI

127. Sections 1101, 1102, and 1103 are revised. The remaining
sections of Chapter XI are deleted in their entirety.

CHAPTER XII

128. Section 1201c. Adds language that DAJAG (Admiralty and

Maritime Law) is the designated Admiralty Counsel of the Navy and
required notifications to OJAG Admiralty and Maritime Law Division
suffice for JAG notification.

129. Section 1202. Section 1202a replaces “$1M” with “$15M”.

Section 1202b updates address and phone numbers for Admiralty and
Maritime Law Division. Section 1202c provides guidance on who is
authorized, and to what extent, to adjudicate and settle admiralty
tort claims.

130. Section 1203. Substantial changes in this section provide

new language on what constitutes an admiralty incident to include
defining admiralty incident, allision, personal injury and death
as an admiralty incident, property damage, MWR marina services and
boats, naval aircraft and weapons, and salvage and groundings.

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131. Section 1204a. New language clarifies requirement for

initial report of admiralty incident in addition to other reports
required by Chapter XII. Updates message address.

132. Section 1205. Subparagraphs a, b, c, d, and g are

substantial revisions. Section 1205a gives guidance on the format
of supplemental reports to the initial admiralty report. Section
1205b provides guidance on the Admiralty Letter Report. Section
1205c refers the reader to Chapter II if a command investigation
is used and directs an advance copy be sent to JAG. Section 1205g
includes clarification that only OJAG is authorized to release an
ALR or Dual Purpose investigation report. Also, JAG must be
consulted on release of command investigations.

133. Section 1206. Section 1206a and c add language requiring

JAG notification and consultation when invited to attend a joint
marine survey. Section 1206e is deleted in its entirety.

134. Section 1207a. Adds language to have original admiralty-

related documents and photographs labeled as originals and
forwarded to JAG for retention.

135. Section 1208a. Paragraph completely revised to reflect

types of admiralty-related records that need to be preserved.

136. Section 1209. Administrative change correcting the word

“hull”.

137. Section 1210b. Paragraph revised to provide a definition of

what types of incidents make a victim an admiralty incident
victim.

138. Section 1212c. Adds language further defining "public

vessels".

139. Section 1213. Section 1213b changes include administrative

changes and deletes Commander Fleet Air, Caribbean as having
authority to settle claims. Section 1213c adds the language "and
executes a release of liability" to define when a settlement is
complete.

140. Section 1216a. Provides further guidance on when admiralty

claims arising in foreign countries may be adjudicated under the
Foreign Claims Act.

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 SUMMARY OF JAGINST 5800.7D CHANGES

141. Section 1217. Section 1217c changes affirmative claims

settlement amount. Section 1217e updated to reflect the correct
statute.

142. Section 1220. Section 1220a adds language clarifying who

does not have authority to waive salvage fees or claims on behalf
of the Navy. Section 1220d updates the correct statute. Section
1220f updates reference to the DOD Financial Management
Regulation.

143. Section 1221b. Administrative change updating the reference

to Appendix A-12-d.

144. Section 1223b. Administrative change updating the message

PLAD for JAG.

145. Section 1224b. Adds language on the need to protect

attorney-work product and critical self-analysis privileges.
Provides guidance for when NTSB officials may conduct preliminary
crewmember interviews or formal questioning of Government
witnesses. Also requires assignment of a DON liaison officer as a
POC with NTSB and assignment of a local judge advocate to assist
the admiralty attorney.

146. Section 1225. New paragraph discussing Maritime

Oil/Hazardous Substance Spills and concern over releasing
information about the spill as it relates to an effective defense
against claims and litigation.

147. Section 1226. New paragraph discussing salvage, removal,

etc., of Navy shipwrecks and that any attempts to do so should be
reported to JAG.

148. Appendix A-12-a. Adds a sample Admiralty Letter Report

Investigation.

149. Appendix A-12-b. Adds a sample Admiralty Letter Report.

150. Appendix A-12-c. Adds a sample Dual-Purpose Litigation

Report.

151. Appendix A-12-d. Adds a suggested format for pilotage and

tug services contract.

CHAPTER XIII

152. Appendix A-13-a. Updates references.

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 SUMMARY OF JAGINST 5800.7D CHANGES

CHAPTER XIV

153. Chapter XIV, page 14-1. Removed. The Chapter XIV functions
are now handled by DFAS-CL(GA).

154. Section 1401. Adds Permanent Disability Retired List as a

category for placement of members found unfit for duty due to
mental incompetence. Also adds language that Chapter XIV is for
informational purposes only since DFAS has full responsibility for
guardian matters.

155. Section 1402a. Adds DFAS-CL(GA) address and phone number.

156. Sections 1403, 1404, 1405, 1406, 1407, and 1409. All
references to JAG are now changed to DFAS-CL(GA). Clarifies that
the Chapter focus is on management of the financial affairs of a
member incapable of managing his or her own affairs.

157. Section 1408. Completely revised to reflect DFAS-CL(GA)

role in payment of emergency funds to an incompetent member.

INDEX

158. Updates applicable sections.

TABLE OF CONTENTS

159. Updates applicable sections.

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 JAG MANUAL CORRECTION/SUGGESTION SHEET

______________
Date

From: __________________________________________________________
__________________________________________________________

To: Office of the Judge Advocate General, Administrative Law

Division (Code 13), 1322 Patterson Avenue SE, Suite 3000,
Washington Navy Yard, DC 20374-5066 Fax: (703) 604-6955
(DSN 664-6955)

1. It is requested the following correction(s) be made to the

next change of the JAG Manual:

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_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________

2. It is requested the following suggestion(s) be included in

the next change of the JAG Manual:

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_________________________________________________________________
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_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________

___________________________
Signature