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DEPAHTMCNT OF THE NAVY 

Of FlCe OF the juoqe auvocatt general 

1322 PATTERSON AVENUE SE SUITE 3010 
WASHINOTON NAVY YARD DC 20374-5066 

M PEKy OEFCM TO 

JAGINST 5800.7D 
Ser 13/3JM12127.03 
15 March 2004 


JAG INSTRUCTION 5800.7D 


From: Judge Advocate General 

Subj; MANUAL OF THE JUDGE ADVOCATE GENERAL (JAGMAN) 

Reft (a) 5 U.S.C. S 301 

10 U.S.C. §§ 801-940 

(c) Manual for Courts-Martial, United States, 2002 (MCM) 

End; (1) JAGMAN 

(2) Summary of Revisions 

1. Purpose . To promulgate the JAGMAN contained in enclosure (1) as 

authorized by the Secretary nf the Navy. 

2. Cemcellation . JAG Instruction 5800.7C of 3 October 1990 is hereby 
ceuicelled. 

3. Scope■ The JAGMAN contains regulations of the Department of the 
Navy that are issued under the authority of references (a) through (c) 
and other statutes and regulations. It is a complete revision of the 
previous JAGMAN and should be read in its entirety. Portions of the 
previous JAGMAN have been incorporated in separate JAG Instructions 
with a limited distribution list. Enclosure (2) is a summary of 
revisions. Major highlights include: 

a. Updated and modified Chapter I to comport with recent case law 
and statutory revisions to provide guidance regarding reimbursement of 
advanced educational assistance, proper handling of national security 
cases, reasonable availability of individual military counsel, closure 
of Article 32 hearings to the public, and the elimination of subject 
areas already adequately covered in the MCM or superseded by other 
instructions. 

b. Updated and modified Chapter II to provide new guidance on 
conducting preliminary inquiries, courts of inquir-y. and expanded 
benefits under the Uniformed Services Survivor Benefit Plan in line of 
duty determinations. 

c. Streamlined the procedures and guidance for conducting 
admiralty incident investigations when litigation is anticipated and 
consolidated the admiralty investigations sections into one chapter. 
New guidance has been included regarding the definition of what 
constitutes an admiralty incident and SECNAV's authority to adjudicate 
admiralty claims up to $15M. 






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Office of the Judge Advocate General Department of the Navy 

Washington Navy Yard Washington, DC 20374-5066 

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Subj; MANUAL OF THE JUDGE ADVOCATE GENERAL (JAGMAN) 

d. Consolidated and reorganized the old chapters on Tmmigration 
and Naturalization into the Legal Assistance chapter. 

e. Reduced the number of sections in Chapter XI to provide 

general guidance only and directed readers to the current references 
in the Department of Defense customs directive, 

4. Availability 


a. Internet . The Microsoft word processing format of the new 
JAGMAN is available on the Office of the Judge Advocate General 
website at http :/ /wwv; . Tag . navy . mi 1 . Contact the Office of the Judge 
Advocate General (Knowledge and Information Services Division), 
commercial (202) 685-5290. DSN 221-5290. for technical assistance. 

b. CD, R(3M Form. A CD ROM version of the new JAGMAN in Microsoft 
word processing format is available through your local Naval Legal 
Service Office or the Office of the Judge Advocate General. Local 
copying and redistribution of thee© CD ROM© is both authox-iced and 
encouraged. Contact the Office of the Judge Advocate General 

Administrative Office), commercial (202) 685-S235. DSN 221- 
5235. for additional information concerning CD ROM availability. 

List Changes . Submit changes in writing CO Che 
appropriate address below. 


Marine Corps activities 


Navy activluies oftlce ot the Judge Advocate General 

Executive Administrative Office (Code 60) 
1322 Patterson Avenue. SE 
Suite 3000 

Washington Navy Yard 
Washington. DC 20374-5066 

HeadiTuantero, U.S. Max-inc Corps 
(Code ARDE) 

2 Navy Annex 

Washington. DC 20380-1775 

5, Action - The JAGMAN is effective as of the date of this Instruction. 
Recommended changes should be forwarded to the Office of the Judge 
Advocate General. Administrative Law Division (Code 13), 1322 Patterson 
Avenue, SE, Suite 3000, Washington Navy Yard, Washington, DC, 20374- 
5066. 



DISTRIBUTION: 

JAG Special MCM/JAG List 


2 








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 

VHI 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 

XH ADMIRALTY CLAIMS 12-1 

XHI 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 Advoeate General may be eited as " JAGMAN OlOla(l)" or " JAGMAN A-l-b-(l)." 

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 Reseiwe, Fleet Marine Corps Reserve, 



REGULATIONS IMPLEMENTING AND 



and discharged personnel 1 -27 



SUPPLEMENTING THE MANUAL 


0124 

Exercise of court-martial jurisdiction in cases tried 



EOR 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 deteiTnining 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 seiwice 


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 

Cormuand action on nonjudicial punishment 


0143 

Spectators at proceedings 

1-47 


appeals 

1-20 

0144 

Security of classified matter injudicial 


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 fornis 

1-50 

PART 

C - COURTS-MARTIAL 








SUBPART C3 POST-TRIAL MATTERS 


SUBPART Cl 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 couits-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 


1 


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—Surmnary 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 

Disciplinaiy 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 11 


0226 

Intoxication and dmg 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 detenninations 






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 

Preliminaiy 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 

Detenninations concerning line of 



duty/misconduct in death cases 


2-35 


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 


cormnands 

4-3 

0238 

Independent review 

2-36 

0408 

Reconsideration and appeal 

4-4 

0239 

Standard of proof 

2-37 

0409 

Effect of couif-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 

Fireann 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 tenns 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 infonnation 

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 Secretaiy 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 



CHAPTER VI 


PARTC 

~ 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 Seiwice) 

6-17 

PART A - DELIVERY OE PERSONNEL 








PARTD 

- MISDEMEANORS COMMITTED ON NAVY 

0602 

Deliveiy 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 

PARTE 

- 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 VH 



(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 

Seiwice 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 seiwices 

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 instmctions 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 XH 



oaths and perfomi 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 instmments 

9-5 

1209 

Documenting collision damage 



V 



and repair costs 

12-11 


PAYMENTS DUE MENTALLY 


1210 

Personal injury cases 

12-13 


INCOMPETENT MEMBERS, 


1211 

Con'espondence with private parties 

12-14 


PHYSICAL EXAMINATIONS 






OF SUCH MEMBERS, 


PARTC 

- 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 

PARTD 

- 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 affiiTnative claims 

12-17 




1219 

AffiiTnative claims administration 

12-17 




PARTE 

-- MISCELLANEOUS 





1220 

Salvage 

12-18 




1221 

Towage and pilotage 

12-18 




1222 

Intragovemment 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 

Enviromnental 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 

PART A ~ NONPUNITIVE 
MEASURES 

0102 NONPUNITIVE 

ADMINISTRATIVE MEASURES 
GENERALLY 

0103 EXTRA MILITARY 
INSTRUCTION 

a. Definition 

b. Limitations 

0104 ADMINISTRATIVE 
WITHHOLDING OF 
PRIVILEGES 

a. Privilege 

b. Deprivation of liberty 

0105 NONPUNITIVE CENSURE 

a. General 

b. Nonpunitive censure 

PART B - NONJUDICIAL 
PUNISHMENT 

0106 AUTHORITY TO IMPOSE 

a. Commander 

b. Officer in charge 

c. Principal assistant 

d. Multiservice commander or officer 
in charge 

e. Withholding of nonjudicial 
punishment authority 


0107 JURISDICTION 

a. Individual 

b. Over reserve component personnel on 
active duty or inactive duty training 

0108 LIMITATION ON 
IMPOSITION OF 
NONJUDICIAL PUNISHMENT 

a. Units attached to ships 

b. Cases previously tried in civil 
courts 

c. Right to demand trial 

0109 ADVICE TO ACCUSED PRIOR 
TO IMPOSITION OF 
NONJUDICIAL PUNISHMENT 

a. Pre-NJP advice 

b. Accused attached to or embarked in a 
vessel 

c. 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.) 

d. Accused not attached to or embarked in 
a vessel (Record may be used in 
aggravation in event of later court- 
martial.) 

e. Service record entries 


1-1 


0110 PROCEDURES FOR 
IMPOSITION OF 
NONJUDICIAL PUNISHMENT 

a. Captain's mast/office hours 
guide 

b. Standard of proof 

c. Observers at Captain's 
Mast/Office Hours 

d. Nonjudicial punishment based 
on report of a fact-finding body 

e. Advice after imposition of 
nonjudicial punishment 

0111 LIMITATIONS ON AND 

NATURE OF PUNISHMENTS 

a. Restriction imposed upon 
officers and warrant officers 

b. Correctional custody 

c. Confinement on bread and water or 
diminished rations 

d. Extra duties 

e. Reduction in grade 

f. Arrest in quarters 

0112 LIMITATIONS ON 

NONJUDICIAL PUNISHMENTS TO 
BE IMPOSED ON RESERVE 
COMPONENT PERSONNEL NOT 
ON ACTIVE DUTY 

a. Punishment involving restraint on 
liberty 

b. Punishment involving forfeiture 
of pay 

0113 EFFECTIVE DATE AND 

EXECUTION OF NONJUDICIAL 
PUNISHMENTS 

a. Forfeiture of pay and reduction in 

b. Punishments involving restraint 
and extra duties 

c. Punitive letters 

0114 PUNITIVE CENSURE 


a. General 

b. Secretarial letter of censure 

c. Punitive censure 

d. Other censures 

e. Internal departmental 
responsibility 

f Punitive censure procedures 

g. Appeals 

h. Forwarding letter 

i. Cancellation 

j. Public reprimands 

0115 ANNOUNCEMENT OF 
DISPOSITION OF 
NONJUDICIAL PUNISHMENT 

a. Publication 

b. Plan of the Day publication 

c. Bulletin boards 

d. Daily formation (Marine Corps) 
or morning quarters (Navy) 

0116 COMMAND ACTION ON 

NONJUDICIAL PUNISHMENT 
APPEALS 

a. Time limit 

b. Procedures 

c. Contents of forwarding 
endorsement 

0117 AUTHORITY TO ACT ON 

NONJUDICIAL PUNISHMENT 
APPEALS 

a. When the officer who imposed punishment 
is in a Navy chain of command 

b. When the officer who imposed punishment 
is in the chain of command of the 
Commandant of the Marine Corps 

grade When punishment is imposed within a 
multiservice command or unit 

d. Delegation of authority to act on appeals 

e. Rehearing after appeal 

0118 SUSPENSION, MITIGATION, 


1-2 


REMISSION, SETTING ASIDE, 
AND VACATION OF SUSPEN¬ 
SION 

a. Definition of "successor in 
command" 

b. Authority to suspend, mitigate, 
remit, set aside: new eommander 

c. Interruption of probationary period 

d. Vacation of suspension 

0119 RECORDS OF NONJUDICIAL 
PUNISHMENT 

a. Records 

b. Report of officer nonjudicial 
punishment 

PART C ~ COURTS-MARTIAL 

SUBPART Cl - PRETRIAL 
MATTERS 

0120 DESIGNATION OF 

ADDITIONAL CONVENING 
AUTHORITIES 

a. General eourts-martial 

b. Speeial courts-martial 

c. Summary courts-martial 

0121 REQUESTS FOR AUTHORITY 
TO CONVENE COURTS- 
MARTIAL 

a. General eourts-martial 

b. Speeial and summary eourts- 
martial 

c. Separate and detaehed units 

d. Commanding officers of staff 
enlisted personnel 

e. Authority limited to summary 
eourts-martial. 

f Requests for eourts-martial convening 
authority. 

g. Record maintenance 

0122 GENERAL RESTRICTIONS 


ON EXERCISE OF COURT- 
MARTIAL JURISDICTION 

a. Special and summary eourts-martial 

b. Units attached to ships 

0123 EXERCISE OF COURT-MARTIAL 
JURISDICTION OVER RETIRED, 
RESERVE, FLEET RESERVE, FLEET 
MARINE CORPS RESERVE, AND 
DISCHARGED PERSONNEL 

a. Policy 

b. Request for authorization 

c. Apprehension and restraint 

d. Jurisdiction over reserve 
component personnel under Artiele 
3(d), UCMJ 

e. Order to active duty in the case 
of reserve eomponent personnel 
not on active duty 

f Release from aetive duty of 
reserve component personnel 
described in subsection e 

g. Tolling statute of limitations 

0124 EXERCISE OF COURT-MARTIAL 
JURISDICTION IN CASES TRIED 
IN DOMESTIC OR FOREIGN 
CRIMINAL COURTS 

a. Policy 

b. Criteria 

c. Procedure 

d. Limitations 

0125 EXERCISE OF COURT- 

MARTIAL JURISDICTION 
OVER MAJOR FEDERAL 
OFFENSES 

a. Background 

b. Limitation on court-martial 
jurisdiction 

c. Exceptions 

d. Related matters 

0126 DETERMINATION OF STATUS OF 


1-3 


CASE AS NATIONAL SECURITY 
CASE, INVESTIGATION OF 
SUSPECTED NATIONAL 
SECURITY CASES AND 
EXERCISE OF JURISDICTION IN 
SUCH CASES 

a. National security case defined 

b. Case not designated as national seeurity 
ease 

e. Referral to the Naval Criminal 
Investigative Service 

d. Preliminary inquiry 

e. Notice to the Judge Advocate General 
and National Security Case Disposition 
Authority (NSCDA) 

f Limitations on eonvening courts-martial 

g. Courts-martial involving classified 
information 

h. Reporting requirements by responsible 
eommand 

0127 PRETRIAL RESTRAINT OF 
ACCUSED 

a. Custody and restraint of accused 
before or during trial 

b. Counsel 

e. Preliminary (probable eause) review 

d. Initial review officer 

e. Reserve component 
personnel 

0128 FORWARDING OF CHARGES 

a. Forwarding of charges by an 
officer in a Navy chain of 
command 

b. Forwarding of charges by an 
officer in the chain of command of 
the Commandant of the Marine 
Corps 


0129 SUPERIOR COMPETENT 


AUTHORITY DEFINED 

a. Aecuser in a Navy chain of 
command 

b. Accuser in the chain of command 
of the Commandant of the Marine 
Corps 

0130 PERSONNEL OF COURTS- 
MARTIAL 

a. Military judges 

b. Counsel 

e. Members 

d. Reporters, interpreters, escorts, 
bailiffs, clerks, and guards 

e. Oaths of eourt-martial personnel 

0131 STANDARDS FOR DETERMINING 
AVAILABILITY OF REQUESTED 
INDIVIDUAL MILITARY COUNSEL 

a. General 

b. Definitions 

e. Submission and forwarding of requests 

d. Action by the commander of requested 
eounsel 

e. Administrative review 

f Approval of assoeiate defense counsel 

0132 [Reserved] 

0133 ADDITIONAL MATTERS IN 
CONVENING ORDERS 

0134 ADDITIONAL MATTERS IN 
THE CASE OF CERTAIN 
RESERVE COMPONENT 
PERSONNEL 

a. Holdover of reserve component 
personnel on active duty 

b. Holdover of reserve eomponent 
personnel on inactive duty training 

c. Sentences to forfeiture or fine 

d. Sentence involving restraint on liberty 

SUBPART C2 ~ TRIAL MATTERS 


1-4 


0135 ARTICLE 39(a), UCMJ, 

SESSIONS 

0136 DELEGATION OF 

AUTHORITY TO EXCUSE 
MEMBERS 

0137 PRETRIAL AGREEMENTS 

a. General 

b. Major Federal offenses 

e. Limitations in national security 
cases 

d. Advanced education obligation 

0138 AUTHORITY TO GRANT 
IMMUNITY FROM 
PROSECUTION 

a. General 

b. Procedure 

c. Civilian witnesses 

d. Cases involving national security 

e. Review 

f Form of grant 

0139 CONTENT OF IMMUNITY 

REQUESTS WHEN APPROVAL OF 
THE ATTORNEY GENERAL IS 
REQUIRED 

a. Approval 

b. Order to testify 

0140 POST-TESTIMONY 
PROCEDURE WHEN 
AUTHORITY TO GRANT 
IMMUNITY WAS OBTAINED 
FROM THE ATTORNEY 
GENERAL 

a. Information 

b. Verbatim transcript 


0141 PERSONAL DATA AND 


CHARACTER OF PRIOR SER¬ 
VICE OF THE ACCUSED 

0142 RELEASE OF INFORMATION 
PERTAINING TO ACCUSED 
PERSONS 

a. General 

b. Applicability of regulations 

c. Release of information 

d. Information subject to release 

e. Prohibited information 

f Exceptional cases 

0143 SPECTATORS AT 
PROCEEDINGS 

a. At sessions of courts-martial 

b. At Article 32 proceedings 

0144 SECURITY OF CLASSIFIED 
MATTER IN JUDICIAL 
PROCEEDINGS 

a. General 

b. Security clearance of personnel 

c. Procedures eonceming spectators 

0145 FINANCIAL RESPONSIBILITY 
FOR COSTS INCURRED IN 
SUPPORT OF COURTS- 
MARTIAL 

a. Travel, per diem, fees, and mileage 

b. Involuntary recall and extension on 
active duty of members in the Reserve 
eomponent 

c. Services and supplies 


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. 

Surmnary 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 

1. 

Expert witnesses 


FOLLOWING CONVENING 

m. 

Payment of witness fees to 
foreign nationals 


AUTHORITY ACTION 



a. 

Summary courts-martial and special 

0147 

WARRANTS OF 


courts-martial not involving a bad- 


ATTACHMENT 

b. 

conduct discharge 

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. 

Surmnary court-martial record of trial 

d. 

Marine Corps Court of Criminal 

Appeals cases 

Form 

0151 

INITIAL REVIEW AND ACTION 

0156 

PROMULGATING ORDERS - 


1-6 


SUMMARY COURTS-MARTIAL 


OF SENTENCE 


0157 SERVICE AND EXECUTION 
OE SENTENCES 

a. General 

b. Place and nature of confinement 

c. Punitive discharge—Naval 
Clemency and Parole Board action 

d. Execution of death penalty 

e. Hard labor without confinement 

0158 REMISSION AND 
SUSPENSION 

a. Authority to remit or suspend sentences 
in general courts-martial, and special 
courts-martial in which the sentence in¬ 
cludes a bad-conduct discharge 

b. Authority to remit or suspend sentences 
in summary courts-martial, and special 
courts-martial in which the sentence 
does not include a bad-conduct 
discharge 

c. Probationary period 

d. Liaison with Naval Clemency and 
Parole Board 

0159 LIMITATIONS ON 

AUTHORITY TO REMIT AND 
SUSPEND SENTENCES 

a. Cases involving national security 

b. Flag and general officers 

c. Officers and warrant officers 

d. Authority of the Commanding 
Officer, Naval Station Norfolk, 

VA, and the Commanding Officer, 
Marine Detachment, U.S. 

Disciplinary Barracks, Fort 
Leavenworth, KS 


0160 VACATION OF SUSPENSION 


a. Review of confinement of proba¬ 
tioner pending vacation proceedings 

b. Notice of proceedings 

c. Filing of report of proceedings 

d. Execution of vacated punishments 

0161 REQUEST FOR 

WITHDRAWAL OF 
APPELLATE REVIEW 

a. Article 66 cases 

b. Article 69(a) cases 

0162 APPLICATION FOR RELIEF - 
ARTICLE 69(b) 

a. General 

b. Time limitations 

c. Submission procedures 

d. Contents of application 

e. Signatures on application 

0163 PETITION FOR NEW TRIAL - 
ARTICLE 73 

0164 NOTIFICATION TO ACCUSED 
OF COURT OF CRIMINAL 
APPEALS DECISION 

a. Current address of Accused 

b. Promulgation package 

c. Copies of decision 

d. Change in address 

e. Completion of appellate review 

0165 REQUEST FOR IMMEDIATE 
EXECUTION OF DISCHARGE 

a. General 

b. Conditions of approval 

c. Execution of unexecuted portion 
of sentence 

d. Form of request for immediate 
execution of discharge 


1-7 


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 


1-8 


CHAPTER I 

REGULATIONS IMPLEMENTING AND SUPPLEMENTING 
THE MANUAL EOR COURTS-MARTIAL 


0101 SCOPE 

The Uniform Code of Military Justice (UCMJ) and the 
Manual for Courts-Martial (MCM), authorize "the 
Secretary concerned" or "the Judge Advocate General 
concerned" to prescribe regulations implementing or 
supplementing certain provisions of the UCMJ or the 
MCM. This chapter provides those regulations and 
additional regulations relating to military justice. 


Part A contains regulations and procedures governing 
nonpunitive corrective measures. Part B contains 
regulations and procedures relating to nonjudicial 
punishment. Part C pertains to trial by court-martial. 
It is divided into three subparts, concerning the pretrial, 
trial, and post-trial stages of the court-martial process. 
Part D contains miscellaneous provisions, including a 
table of cross-references between this chapter and 
corresponding provisions of the MCM. 


PART A - NONPUNITIVE MEASURES 


0102 NONPUNITIVE ADMINISTRATIVE 
MEASURES GENERALLY 

Commanding officers and officers in charge are 
authorized and expected to use administrative 
corrective measures to further the efficiency of their 
commands or units. See R.C.M. 306(c)(2), MCM. 
These measures are not to be imposed as punishment 
for any military offense(s). They may be administered 
either orally or in writing. They generally fall into 
three areas: extra military instmction, administrative 
withholding of privileges, and nonpunitive censure. 

0103 EXTRA MILITARY INSTRUCTION 

a. Definition . Extra military instruction (EMI) is 
defined as instruction in a phase of military duty in 
which an individual is deficient, and is intended for 
and directed towards the correction of that deficiency. 
It is a bona fide training technique to be used for 
improving the efficiency of an individual within a 
command or unit through the correction of some de¬ 
ficiency in that individual's performance of duty. It 
may be assigned only if genuinely intended to accom¬ 
plish that result. It is not to be used as a substitute for 
judicial (court-martial) action or nonjudicial 
punishment (NIP), and must be logically related to the 
deficiency in perfonnance for which it was assigned. 

b. Limitations . EMI shall be conducted within the 
following limitations: 

(1) EMI normally will not be conducted for 


more than 2 hours per day. 

(2) EMI may be conducted at a reasonable time 
outside normal working hours. Reserve component 
personnel on inactive duty training, however, may not 
be required to perform EMI outside normal periods of 
inactive duty training. 

(3) EMI will not be conducted over a period that 
is longer than necessary to correct the performance 
deficiency for which it was assigned. 

(4) EMI should not be conducted on the 
member's Sabbath. 

(5) EMI will not be used for the purpose of 
depriving the member of normal liberty to which the 
member is otherwise entitled. A member who is 
otherwise entitled thereto may commence normal 
liberty upon completion of EMI. 

(6) Authority to assign EMI that is to be 
performed during normal working hours is not limited 
to any particular grade or rate, but is an inherent part of 
that authority over their subordinates, which is vested 
in officers and noncommissioned/petty officers in 
connection with duties and responsibilities assigned to 
them. This authority to assign EMI that is to be 
performed during normal working hours may be 
withdrawn by any superior if warranted. 

(7) Authority to assign EMI to be performed 
after normal working hours is vested in the 


1-9 




commanding officer or officer in eharge. Such 
authority may be delegated, as appropriate, to officers 
and noncommissioned/petty offieers, in connection 
with duties and responsibilities assigned to them, only 
if authorized by regulations of the Chief of Naval 
Operations or the Commandant of the Marine Corps, 
as appropriate. See OPNAVINST 3120.32 series. 

0104 ADMINISTRATIVE WITHHOLDING 
OF PRIVILEGES 

a. Privilege . A privilege is a benefit, advantage, or 
favor provided for the eonvenience or enjoyment of an 
individual. Examples of privileges that may be 
temporarily withheld as administrative correetive 
measures are: special liberty; exchange of duty; 
special command programs; access to base or ship 
libraries, base or ship movies, or enlisted or officers' 
clubs; base parking; and base or ship special services 
events. It may also encompass the withholding of 
special pay as well as commissary and exchange 
privileges, provided sueh withholding eomplies with 
applicable rules and regulations, and is otherwise in 
accordance with law. In all instances, unless properly 
delegated, final authority to withhold a privilege, 
however temporary, must ultimately rest with the level 
of authority empowered to grant that privilege. 

b. Deprivation of liberty . Deprivation of normal 
liberty as a punishment, except as specifically 
authorized under the UCMJ, is illegal. Therefore, 
exeept as the speeific result of punishment imposed 
under article 15, UCMJ, or as the result of the sentence 
of a court-martial, it is illegal for any officer or 
noncommissioned/petty officer to deny to any subor¬ 
dinate normal liberty, or privileges incident thereto, as 
punishment for any offense. Lawful deprivation of 
nonnal liberty, however, may result from other lawful 
actions such as authorized pretrial restraint, or 
deprivation of normal liberty in a foreign country or in 
foreign territorial waters, when such action is deemed 
essential for the protection of the foreign relations of 
the United States, or as a result of international legal 
hold restriction. Moreover, it is necessary to the 
efficiency of the naval service that official functions be 
performed and that certain work be accomplished in a 
timely manner. It is, therefore, not a pimishment when 
persons in the naval service are required to remain on 
board and be physically present outside of nonnal 
working hours for work assignments that should have 


been eompleted during nonnal working hours, for the 
accomplishment of additional essential work, or for the 
achievement of the eurrently required level of 
operational readiness. 

0105 NONPUNITIVE CENSURE 

a. General . "Censure" is a statement of adverse 
opinion or criticism of an individual's conduct or 
performance of duty expressed by a superior in the 
member's chain of command. Censure may be 
punitive or nonpunitive. See section 0114 regarding 
punitive censure. Censure does not include adverse 
comments in reports of fitness or perfonnance 
evaluations, letters of instruction, or administrative 
remarks entries documenting faetual matters sueh as 
counseling. Proper use of adverse matter that is not 
censure is governed by Department of the Navy 
regulations and applicable serviee directives, such as 
the Naval Military Personnel Command Manual and 
the Marine Corps Individual Records Administration 
Manual. 

b. Nonpunitive censure . Nonpunitive censure is 
provided for in R.C.M. 306(c)(2), MCM. Nonpunitive 
censure may be issued by any superior in the member's 
chain of command, and may be either oral or in 
writing. A sample nonpunitive letter is at Appendix 
A-l-a. 

(1) A nonpunitive letter is not considered 
punishment; rather, the letter is issued to remedy a 
noted defieiency in conduet or perfonnance of duty. 
The eontents of a nonpunitive letter are not limited to, 
but may include the following: identification of 
conduct or perfonnance of duty defieiencies, direction 
for improvement, language of admonishment, iden¬ 
tification of sources of assistance, outline of conective 
action, and the consequences of failing to eonect the 
deficieneies. 

(2) A nonpunitive letter will be kept a 
personal matter between the member and the superior 
issuing the nonpunitive letter. Other than Secretarial 
letters of eensure (see section 0114b), the letter may 
not be forwarded to the Chief of Naval Personnel or 
the Commandant of the Marine Corps, quoted in or 
appended to fitness reports, included as enclosures to 
investigations pursuant to the Manual of the Judge 
Advocate General or to other investigations, or 


1-10 






otherwise ineluded 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 - NONJl 

0106 AUTHORITY TO IMPOSE 

a. Commander . Any commander or commanding 
officer, including a commanding officer as designated 
pursuant to subsection d, may impose nonjudicial 
punishment upon officers and enlisted persons of the 
command. This authority to impose nonjudicial 
punishment extends to Reserve commanders or 
commanding officers on active duty or inactive duty 
training. 

b. Officer in charge . Any commissioned officer 
who is designated as officer in charge of a unit by 
Departmental Orders, Tables of Organization, 
manpower authorizations, orders of a flag or general 
officer in command (including one in command of a 
multiservice command to which members of the naval 
service are attached), or orders of the senior officer 
present, may impose upon enlisted persons assigned to 
the unit admonition or reprimand and one or more of 
the punishments listed in paragraph 5b(2)(A)(i) to (vi) 
of Party, MCM. 

c. Principal assistant . With the express prior 
approval of the Chief of Naval Personnel or the 
Commandant of the Marine Corps, as appropriate, a 
flag or general officer in command may delegate all or 
a portion of his powers under article 15, UCMJ, to a 
senior officer on his staff who is eligible to succeed to 


L PUNISHMENT 

command in case of absence of such officer in com¬ 
mand. To the extent of the authority thus delegated, 
the officer to whom such powers are delegated shall 
have the same authority as the officer who delegated 
the powers. 

d. Multiservice commander or officer in charge . A 
multiservice commander or officer in charge to whose 
staff, command or unit members of the naval service 
are assigned may impose nonjudicial punishment upon 
such individuals. A multiservice commander, 
alternatively, may designate one or more naval units, 
and shall for each such naval unit designate a 
commissioned officer of the naval service as 
commanding officer for the administration of 
discipline under article 15, UCMJ. A copy of any such 
designation by the commander of a multiservice 
command shall be furnished to the Chief of Naval 
Personnel or the Commandant of the Marine Corps, as 
appropriate, and to the Judge 

Advocate General. 

e. Withholding _of_ nonjudicial _ punishment 

authority . Unless specifically authorized by the 
Secretary of the Navy, commanding officers of the 
Navy and Marine Corps shall not limit or 

withhold the exercise by subordinate commanders of 
any disciplinary authority they might otherwise have 
under article 15, UCMJ. But see section 0108a. 


1-11 









0107 JURISDICTION 

a. Individual 

(1) General rule . When nonjudicial punishment is 
imposed, the accused must be a member of the 
command, or of the unit, of the officer imposing the 
punishment. A member is "of the command," or "of 
the unit," if assigned or attached thereto. A member 
may be "of the command," or "of the unit," of more 
than one command or unit at the same time and, 
consequently, be subject to the nonjudicial punishment 
authority of both cormnanders. For example, members 
assigned to or attached to commands or units for the 
purpose of perfonning temporary duty (TDY) are 
subject to the nonjudicial punishment authority of the 
commanders of both the parent and TDY commands. 
Similarly, members assigned or attached to a 
detachment under the operational control of another 
command or unit by virtue of operational orders, or 
other authorized means, are subject to the nonjudicial 
punishment authority of the commanders of both the 
parent and supported units. 

(2) Issuance of letter of censure to party before 
fact-finding body . A person who has been designated 
a party before a fact-finding body convened under 
these regulations ( see chapter II) remains thereafter "of 
the command" of the unit or organization to which 
assigned or attached at the time of such designation for 
the purpose of imposition of the sole nonjudicial 
punishment of a punitive letter, even though for other 
purposes he may have been assigned or attached to 
another command before such letter was delivered to 
him. This status terminates automatically when all 
action on appeal has been completed respecting the 
letter of admonition or reprimand. 

(3) Aetion when accused is no longer with 
command . Except as provided in subsection a(2), if 
the accused is no longer assigned to or attached to the 
unit at the time nonjudicial punishment is to be 
imposed, the alleged offense should be referred for 
appropriate action to a competent authority in the chain 
of cormnand over the individual concerned. 

b. Over reserve component personnel on active duty 

or inactive duty training . A member of a reserve 
component on active duty or inactive duty training is 


subject to the UCMJ. Such members are not, by virtue 
of termination of a period of active duty or inactive 
duty training, relieved from amenability to jurisdiction 
of the UCMJ for offenses coiumitted during such 
periods of active duty or inactive duty training and 
may be ordered to active duty for disciplinary 
proceedings. (See section 0123e regarding procedures 
for ordering to active duty and section 0123f regarding 
release from active duty of members ordered to active 
duty for disciplinary proceedings.) 

0108 LIMITATION ON IMPOSITION OF 
NONJUDICIAL PUNISHMENT 

a. Units attached to ships . The commanding officer 
or officer in charge of a unit attached to a ship of the 
Navy for duty should, as a matter of policy while the 
unit is embarked therein, refrain from exercising his 
powers to impose nonjudicial punishment. All such 
matters should be referred to the coiumanding officer 
of the ship for disposition. 

(1) This general policy is a necessary corollary to 
the latter's overall responsibility for the safety, well 
being, and efficiency of the ship. Nevertheless, the 
commanding officer of a ship of the Navy is 
authorized to determine whether, and under what 
circumstances, he may desire to permit a cormnanding 
officer or officer in charge of a unit attached to that 
ship, while embarked therein, to exercise routinely 
nonjudicial punishment authority. The cormnanding 
officer of a ship of the Navy may, for example, permit 
a commanding officer or officer in charge of a unit 
attached to and embarked in the ship to exercise 
nonjudicial punishment authority. Certain types of 
offenses, or offenses committed by certain categories 
of personnel, may nonetheless be required to be 
referred to the commanding officer of the ship for 
disposition. 

(2) This policy shall not apply to Military Sealift 
Command vessels operating under a master, nor does it 
apply where an organized unit is embarked for 
transportation only. When an organized unit is 
embarked for transportation only in a ship of the Navy, 
the officer in command of such organized unit shall 
retain the authority possessed over such unit prior to 
embarkation, including disciplinary authority. Under 
ordinary circumstances, the internal control and 
discipline of a unit embarked for transportation only 


1-12 











shall be left to the officer in command of that unit. 
Nothing in the foregoing shall be constraed as 
impairing the paramount authority of the commanding 
officer of the ship, including disciplinary authority, 
over all personnel of the naval service embarked. In 
the case of units embarked for transportation only, 
however, the commanding officer of the ship should 
take disciplinary action under the UCMJ over 
members of such embarked units only in unusual cases 
concerning incidents occurring on board the ship. 

b. Cases previously tried in civil courts . See section 
0124 for rules governing nonjudicial punishment in 
cases previously adjudicated in domestic or foreign 
criminal courts. 

c. Right to demand trial . A person in the Navy or 
Marine Corps who is attached to or embarked in a 
vessel does not have the right to demand trial by court- 
martial in lieu of nonjudicial punishment. 

0109 ADVICE TO ACCUSED PRIOR TO 
IMPOSITION OF NON JUDICIAL 
PUNISHMENT 

a. Pre-N.lP advice 

(1) Prior to the imposition of nonjudicial 
punishment, the commanding officer or officer in 
charge shall ensure that the individual concerned is 
fully advised of all applicable legal rights and that 
other required action is taken prior to the hearing. See 
section 01 lOd if nonjudicial punishment is to be based 
on the report of a fact-finding body. There is no right 
for an accused to consult with counsel prior to 
nonjudicial punishment; however, commanding 
officers are encouraged to permit an accused to so 
consult subject to the irmnediate availability of 
counsel, the delay involved, or operational 
cormnitments or military exigencies. Failure to 
provide the opportunity for an accused to consult with 
counsel prior to nonjudicial punishment does not 
preclude the imposition of nonjudicial punishment; it 
merely precludes the admissibility of the record of 
nonjudicial punishment in aggravation at a later 
Courts-Martial (unless the accused was attached to or 
embarked in a vessel at the time of the imposition of 
nonjudicial punishment). The status of the accused 
( See subsection b) and the potential use of the record 
(See subsections c and d) should be considered in 


determining whether to utilize Appendix A-l-b, 
Appendix A-l-c, or Appendix A-l-d. 

(2) A servicemember having obligated service 
arising from receiving advanced education assistance 
must be advised prior to electing nonjudicial 
punishment that, if subsequently separated for 
misconduct, he may be required to reimburse the 
United States for the cost of advanced education 
assistance not repaid by active duty service as specified 
in the written agreement entered into with the 
Government prior to accepting advanced education 
assistance. See section 0171 and Appendix A-l-r(l). 

b. Accused attached to or embarked in a vessel . 
Appendix A-l-b is the Accused's Notification of 
Rights for use only in circumstances when an accused 
is attached to or embarked in a vessel. The record of 
nonjudicial punishment can be used in aggravation in 
the event of a later court-martial conviction for other 
offenses. 

c. 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.) Appendix A-l-c is an Accused's 
Notification of Rights that is for use if either the officer 
who may impose nonjudicial punishment does not 
intend any record of captain's mast/office hours to be 
used in aggravation in the event of a later court-martial 
conviction for other offenses, or if a personal 
representative, who is a civilian or military lawyer, 
appears at the captain's mast/office hours. 

d. Accused not attached to or embarked in a vessel. 

(Record may be used in aggravation in event of later 

court-martial.) Appendix A-l-d is an Accused's 
Notification of Rights, which is for use if it is intended 
to utilize the record of captain's mast/office hours in 
aggravation in the event of a later court-martial 
conviction on other charges. See R.C.M. 1001, MCM, 
and section 0141. 

(1) Appendix A-l-d provides for obtaining advice 
of rights from a lawyer prior to the 
accused deciding whether to accept or refuse captain's 
mast/office hours. Such a lawyer may be a military 
lawyer or a civilian lawyer (obtained by the accused at 
his own expense). A military lawyer who provides 
such advice should be "independent." It is considered 


1-13 













that a military lawyer who, in the course of his regular 
duties, acts as the principal legal advisor to the officer, 
who would hold the captain's mast/office hours, is not 
"independent." 

(2) If the accused does not wish to obtain this 
advice of rights from a lawyer, the accused should so 
indicate in the appropriate space and complete the 
remainder of the form. If the accused states that he 
desires to obtain advice of rights from a lawyer before 
deciding whether to accept or reject captain's 
mast/office hours. Appendix A-I-d shall so indicate, 
but the remainder of the form shall not be completed 
until the accused has been given a reasonable oppor¬ 
tunity to obtain this advice of rights. Such advice to an 
accused from a military lawyer shall be limited to an 
explanation of the legal ramifications involved in the 
right to refuse captain's mast/office hours. These legal 
ramifications are limited to areas such as: the 
accused's substantive and procedural rights at a court- 
martial as opposed to captain's mast/office hours; the 
respective punishment limitations; and the potential 
uses of courts-martial convictions and captain's 
mast/office hours records at any subsequent trial by 
court-martial. Providing these technical explanations 
regarding basic principles of military law do not, per 
se, establish an attorney-client relationship, nor do they 
constitute an assignment of such a military lawyer as 
the individual's defense counsel or personal 
representative for purposes of nonjudicial punishment. 
Military lawyers making such explanations should 
guard against the establishment of any attorney-client 
relationship unless detailed by proper authority to 
serve as defense counsel or personal representative of 
the accused. 

(3) Telephone communication between an accused 
facing captain's mast/office hours and a military lawyer 
counsel is sufficient to satisfy this advice requirement. 

(4) In the event that the accused, through no fault 
of the accused's own, does not receive the requisite 
advice of rights, and does not waive the right thereto, 
Appendix A-l-c may be utilized in lieu of Appendix 
A-l-d. 

e. Service record entries 

(1) In the event punishment is imposed at 
captain's mast/office hours, and Appendix A-l-d is 


utilized, or the accused is represented by a lawyer at 
the hearing, appropriate service-record entries should 
be made, and signed by appropriate personnel, on page 
13 (Navy) or page 12 (Marine Corps), or in such other 
manner as service directives may require. As an 
example, if the accused executed Appendix A-l-d, the 
service record entry should state, after appropriate 
verification, the following: 

(Grade and name of accused) signed JAG Manual 
Appendix A-l-d, prior to (his)(her) (captain's 
mast)(office hours) which was held on (date of 
captain's mast/office hours). 

The accused [talked to a lawyer prior to deciding 
whether to demand trial by court-martial in lieu of 
(captain's mast) (office hours)] [elected to give up 
(his)(her) right to talk with a lawyer prior to 
deciding whether to demand trial by court-martial 
in lieu of (captain's mast) (office hours)]. The 
accused was advised that acceptanee of 
nonjudicial punishment does not preclude further 
administrative action against (him)(her). This 
may include being processed for an administrative 
discharge which could result in an other than 
honorable discharge. In completing the remainder 
of the form, the accused did not demand trial by 
court-martial in lieu of (captain's mast) (office 
hours). 

(2) If the aecused is represented by a military 
or civilian lawyer as a personal representative at 
captain's mast/office hours, the following example 
of a serviee-reeord entry may be made, after 
appropriate verification: 

(Grade and name of accused) received punishment 
at (captain's mast) (office hours) on (date). The 
accused was represented by a lawyer. 

0110 PROCEDURES FOR IMPOSITION 
OF NONJUDICIAL PUNISHMENT 

a. Captain's mast/office hours guide . Appendix 
A-l-e is a guide for a personal hearing at captain's 
mast or office hours. 

b. Standard of proof Captain's mast/office hours that 
results in nonjudicial punishment is not a criminal trial; 
it is a disciplinary proceeding. Its purpose is to 
determine whether an offense was committed by the 


I-I4 





member and, if appropriate, to provide punishment 
therefore. Such punishment is designed for minor mis¬ 
conduct in a nonjudicial forum, without the permanent 
stigma of a record of "Federal convietion." As such, 
the standard of proof by which facts must be 
established at mast or offiee hours is a "preponderance 
of the evidence," rather than "beyond a reasonable 
doubt," as it is at courts-martial. 

c. Observers at captain's mast/office hours . The 
presence of representative members of the command as 
observers during personal hearings under paragraph 4 
of Part V, MCM, and article 15, UCMJ, is authorized 
and encouraged as a method of dispelling erroneous 
perceptions which may exist coneeming the integrity 
and fairness of the imposition of nonjudicial 
punishment. Nothing in these requirements shall 
preclude the alleged offender from eonferring privately 
with the officer condueting the hearing to relate 
matters which, in the opinion of the alleged offender, 
are of a personal nature. 

d. Nonjudicial punishment based on report of a fact¬ 

finding body . If nonjudicial punishment is 
contemplated on the basis of the reeord of a eourt of 
inquiry or other fact-finding body, a preliminary 
examination shall be made of such record to determine 
whether the individual concerned was accorded the 
rights of a party before such fact-finding body and, if 
so, whether such rights were aeeorded with respect to 
the act or omission for which nonjudicial punishment 
is contemplated. If the individual does not exercise his 
right to demand trial by court-martial, or if he does not 
have that right, the individual may submit, in writing, 
any matter in defense, extenuation, or mitigation to the 
offieer considering imposing the nonjudicial 
punishment. If the individual concerned was aeeorded 
the rights of a party with respect to the act or omission 
for which nonjudicial punishment is eontemplated, 
such punishment may be imposed without further 
proeeedings. If the individual concerned was not 
accorded the rights of a party with respect to the 
offense for which punishment is contemplated, the 
proeedure prescribed in paragraph 4 of Part V, MCM, 
must be eonducted. In the alternative, the record of the 
fact-finding body may be relumed for additional 
proeeedings during which the individual eoneemed 
shall be accorded the rights of a party with respect to 
the act or omission for which nonjudicial punishment 
is contemplated. 


e. Advice after imposition of nonjudicial punishment . 

The offieer who imposes punishment under artiele 15, 
UCMJ, shall again ensure that the offender is fully in¬ 
formed of his right to appeal. Appendix A-l-f is an 
Accused's Acknowledgment of Appeal Rights, which 
should be signed and witnessed if one or more 
punishments is imposed. 

0111 LIMITATIONS ON AND NATURE 
OF PUNISHMENTS 

a. Restrietion imposed upon officers and warrant 
officers . Restriction, with or without suspension from 
duty, imposed upon commissioned and warrant 
officers under paragraph 5b(l)(A) of Part V, MCM, 
may not exeeed 15 eonsecutive days when imposed by 
a commanding officer below the grade of major or 
lieutenant commander. 

b. Correctional custody . This punishment shall not 
be imposed on persons in paygrade E-4 and above 
unless unsuspended reduction below paygrade E-4 is 
imposed. See SECNAVINST 1640.7 series for 
instructions concerning the administration of 
correetional custody. 

c. Confinement on bread and water or diminished 

rations . This punishment shall not be imposed on 
persons in paygrade E-4 and above unless 
unsuspended reduetion below pay- grade E-4 is 
imposed. 

d. Extra duties . Subject to the limitations set 
forth in paragraph 5c(6) of Part V, MCM, this 
punishment shall be considered satisfied when the 
enlisted person shall have performed extra duties 
during available time in addition to performing his 
military duties. Normally the immediate eommanding 
offieer of the accused will designate the amount and 
character of the extra duties to be perfonned. The 
daily performance of the extra duties, before or after 
routine duties are completed, constitutes the 
punishment whether the particular daily assignment 
requires 1, 2, or more hours, but normally extra duties 
should not extend to more than 2 hours per day. 
Exeept in eases of members of the Naval or Marine 
Corps Reserve performing inactive training or annual 
training for a period of less than 7 days, extra duty 
shall not be performed on Sunday, although Simday 
counts in the computation of the period for which such 


1-15 












punishment is imposed. Guard duty shall not be 
assigned as punishment. 

e. Reduetion in grade . Under no eircumstanees may 
the punishment of reduction in grade be imposed 
except to the next inferior paygrade. Navy personnel 
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 
perform duties involving the exercise of authority over 
any person who is otherwise subordinate to him. 

0112 LIMITATIONS ON NONJUDICIAL 

PUNISHMENTS TO BE IMPOSED ON 
RESERVE COMPONENT 
PERSONNEL NOT ON ACTIVE DUTY 

a. Punishment involving restraint on liberty 

(1) If imposed on reserve component personnel on 
inactive duty training, restriction shall not extend 
beyond the normal inactive duty training period 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 ordered to active 
duty for the sole purpose of serving such punishment 
unless the order to active duty received Secretarial 
approval. See section 0123e. 

(2) If imposed on reserve component personnel 
who have been ordered to active duty for disciplinary 
proceedings, the period of active duty may not be ex¬ 
tended for the purpose of serving such punishment 
unless the order to active duty received Secretarial 
approval. See section 0123e. 

(3) Confinement on bread and water may not be 
imposed unless the reserve component member was 
ordered to active duty with Secretarial approval. See 
section 0123e. 

(4) Correctional custody, extra duties, and arrest in 
quarters may not be imposed on reserve component 
personnel on inactive duty training. 

b. Punishment involving forfeiture of pay . Pay 
subject to forfeiture refers only to basic pay plus sea or 
foreign duty pay. If punishment also includes 


reduction in grade, forfeiture shall be based on the 
grade to which the accused is reduced. For inactive 
duty training reserve component personnel ordered to 
active duty for punishment and released therefrom 
prior to collection of all forfeitures. See DODPM, Pt. 
7, ch. 5 and 6. 


0113 EEEECTIVE DATE AND 

EXECUTION OE NONJUDICIAL 
PUNISHMENTS 

a. Forfeiture of pay and reduction in grade . These 
punishments, if unsuspended, take effect on the date 
imposed. If suspended, and the suspension is later 
vacated, these punishments take effect for all purposes 
on the date the suspension is vacated. If, subsequent to 
the imposition of a punishment of forfeiture of pay and 
prior to the execution of this punishment, an accused 
absents himself without authority, such period of 
absence shall interrupt the service of this punishment 
and shall be excluded in computing the service of this 
punishment. If a forfeiture of pay is imposed, 
however, while a prior punishment of forfeiture of pay 
is still in effect, the prior punishment will be completed 
before the latter begins to run. A punishment to 
reduction in rate may be executed in the accused's 
absence. 

b. Punishments involving restraint and extra duties 

(1) Generally . The punishments of arrest in 
quarters, correctional custody, confinement on bread 
and water or diminished rations, extra duties, and 
restriction, if unsuspended, take effect when imposed 
and are executed when served. But see paragraph 7 of 
Part V, MCM, if an appeal is filed. 

(2) Interruption by absence or later punishment . If 
subsequent to the imposition and prior to the execution 
of these punishments an accused absents himself 
without authority, the period of absence shall interrupt 
the service of the unexecuted portion of these 
punishments. The execution of any previously 
imposed nonjudicial punishment involving restraint 
will normally be interrupted by a subsequent 
nonjudicial punishment involving restraint. Upon 
execution of the later-imposed nonjudicial punishment 


1-16 










involving restraint, the unexecuted portion of the 
earlier punishment will be executed. The officer 
imposing the later punishment may, however, order 
that the earlier punishment be completed prior to 
execution of the later punishment. A sentence imposed 
by a court-martial will also interrupt the service of any 
nonjudicial punishment involving restraint. When the 
judicially imposed punishment has been served, any 
unexecuted nonjudicial punishment will be completed. 

(3) Deferment of execution . Comiuanding officers 
and officers in charge may, when adequate facilities 
are not available or when the exigencies of the service 
require, defer execution of correctional custody or 
confinement on bread and water or diminished rations, 
for a reasonable period of time, not to exceed 15 days, 
after imposition. Also, commanding officers and 
officers in charge may, if the accused is found to be 
medically unfit for the service of the punishments of 
correctional custody, confinement on bread and water 
or diminished rations, defer, for a period not to exceed 
15 days, the execution of the punishment until the 
accused is determined to be medically fit to serve the 
punishment. If at the end of the deferment period the 
accused remains medically unfit to serve the 
punishment of correctional custody or confinement on 
bread and water or diminished rations, the 
commanding officer or officer in charge who imposed 
the punishment may mitigate the punishment to one no 
more severe than the original punishment announced. 

c. Punitive letters . These punishments take effect 
when imposed. A punitive letter is imposed when 
delivered to the offender. The imposition of a punitive 
letter may not be suspended. 

0114 PUNITIVE CENSURE 

a. General . "Censure" is a statement of adverse 
opinion or criticism of an individual's conduct or 
performance of duty expressed by a superior in the 
member's chain of command. Censure may be 
punitive or nonpunitive. See section 0105 regarding 
nonpunitive censure. 

b. Secretarial letter of censure . The Secretary of the 
Navy may administratively censure members in 
writing without reference to article 15, UCMJ. The 
member to whom a Secretarial letter of censure is 
addressed has no right of appeal. Unless otherwise 


directed, a copy of the letter will be filed in the official 
record of the person censured. If a copy of the letter is 
filed in the official record of the member, the 
individual may submit a rebuttal. Any such reply shall 
be temperate in language and confined to pertinent 
facts. Opinions shall not be expressed nor the motives 
of others impugned. Replies shall not contain 
countercharges. The issuance of a Secretarial letter of 
censure and the underlying facts may be mentioned in 
a fitness report and used to support a detachment for 
cause proceeding, relief of cornmand, or negative 
endorsement, or any other administrative action on the 
part of the service concerned. 

c. Punitive censure . A punitive letter is issued as 
nonjudicial pimishment or as the result of a sentence 
by court-martial. See section 0152b. When imposed 
upon officers, pimitive censure must be in writing. 
When imposed upon enlisted personnel as nonjudicial 
punishment, punitive censure may be either written or 
oral. Punitive censure issued to enlisted personnel in 
execution of a court-martial sentence must be in 
writing. Unless withdrawn or set aside by higher 
authority upon appeal, punitive letters become part of 
the official service record of the member to whom they 
are addressed. The issuance of a punitive letter and the 
facts of the underlying offenses may be mentioned in 
the member's fitness report or enlisted evaluation and 
used to support a detachment for cause proceeding, 
relief of command, or any other administrative action 
on the part of the service concerned. Procedures for 
issuance of punitive letters and procedures of appeal 
rights in connection with imposition as nonjudicial 
punishment are discussed below in subsections f and g. 

d. Other censures . No other punitive censure is au¬ 
thorized. 

e. Internal departmental responsibility . 
Correspondence, records, and files in the Department 
of the Navy that relate to punitive censure and 
Secretarial letters of censure are personnel matters 
under the primary cognizance of the Chief of Naval 
Personnel or the Commandant of the Marine Corps, as 
appropriate. 

f Punitive censure procedures 

(1) Issuing authority . When an officer has 
cormnitted an offense that warrants a punitive letter. 


1-17 












the immediate commanding officer subject to 
paragraphs 3 and 4 of Part V, MCM, may issue the 
letter or refer the matter through the chain of 
cormuand, nonnally to the superior who exereises 
general court-martial jurisdiction over the prospective 
addressee. The degree of severity and effeet of a 
punitive letter increase with the grade of the officer 
who issues the letter. 

(2) Hearing requirement . Subject to the provisions 
of article 15(a), UCMJ, paragraph 3 of Part V, MCM, 
and section 0108c regarding demand for trial, a 
punitive letter may be issued, or its issuance recom¬ 
mended to higher authority, on the basis of an 
investigation or court of inquiry for acts or omissions 
for which the individual was accorded the rights of a 
party or on the basis of captain's mast/office hours 
prescribed in paragraph 4 of Part V, MCM. When a 
hearing at captain's mast/office hours is conducted the 
officer conducting the hearing shall prepare a report 
thereof The report shall include a summary of the 
testimony of witnesses, statements, and affidavits 
submitted to the officer holding the hearing, and a 
description of items of information in the nature of 
physical or documentary evidenee considered at the 
hearing. 

(3) Content of letter 

(a) General . A punitive letter issued pursuant to 
artiele 15, UCMJ, may be imposed only for those 
minor acts or omissions constituting offenses under the 
UCMJ. See paragraph le of Part V, MCM. The letter 
must set forth the faets constituting the offense but 
need not refer to any speeifie punitive article of the 
UCMJ nor satisfy the drafting requirements of court- 
martial specifications. The letter should contain 
sufficient specific facts, without reference to other 
documents, to apprise a reader of all relevant facts and 
circumstances of the offense. General conclusions, 
such as "gross negligence," "unofficer-like conduct," 
or "dereliction of duty," are valueless unless 
accompanied by speeifie faets upon which they are 
based. A sample punitive letter is set forth for 
guidance in Appendix A-l-g. 

(b) References . All punitive letters should refer 
to all prior proceedings and eorrespondence upon 
which they are based, applieable laws and regulations, 
ineluding the MCM, and this section. Particular 


reference should be made to the hearing afforded the 
offender. Where applicable, the letter shall include a 
statement that the recipient was advised of the right to 
demand trial by court-martial in lieu of nonjudicial 
punishment and that such trial was not demanded. See 
artiele 15(a), UCMJ. 

(c) Classification (security) . Specific details 
requiring security classification should be omitted from 
punitive letters. A letter issued as nonjudicial 
punishment shall be designated "For Official Use 
Only" unless it contains classified matter. See DOD 
5400.7-R for marking instructions. 

(d) Notification of right to appeal and right to 
submit statement . Punitive letters, except letters issued 
in execution of a court-martial sentence as described in 
section 0152b and Secretarial letters of censure, shall 
contain the following: 

You may appeal this action to the next superior 

authority, the _ via [insert 

the official designation of the commanding officer 
issuing the letter or, if the officer is the irmuediate 
commanding officer of the offender, the official 
designations of the immediate cormuanding 
officer of the offender and the offieer issuing the 
letter] under the provisions of article 15(e) of the 
Unifonn Code of Military Justice, paragraph 7 of 
Part V, Manual for Courts-Martial, and section 
0114g of the Manual of the Judge Advocate 
General. 

If you do not desire to appeal this action, you are 
directed to so inform the issuing authority in 
writing within 5 days after the reeeipt of this letter. 

If you do desire to appeal this action, you are 
advised that an appeal must be made within a 
reasonable time and that, in the absenee of 
unusual circumstances, an appeal made more than 
5 days after the receipt of this letter may be 
considered as not having been made within a 
reasonable time. If, in your opinion, unusual 
circumstanees make it impracticable or extremely 
diffieult for you to prepare and submit your appeal 
within the 5 days, you shall immediately advise 
the offieer issuing this letter of such circumstances 
and request an appropriate extension of time to 
submit your appeal. Failure to receive a reply to 
such request will not, however, constitute a grant 


1-18 










of such extension of time to submit your appeal. 

In all communications concerning an appeal 
of this aetion, you are direeted to state the date of 
your reeeipt of this letter. 

Unless withdrawn or set aside by higher 
authority, a copy of this letter will be placed in 
your official record at [Bureau of Naval Personnel] 
[Headquarters, U.S. Marine Corps]. You may 
forward within 15 days after receipt of final denial 
of your appeal or after the date of your notification 
of your decision not to appeal, whichever may be 
applicable, a statement concerning this letter for 
inclusion in your record. If you do not desire to 
submit a statement, you shall so state in writing 
within 5 days. You are advised that any statement 
submitted must be couched in temperate language 
and shall be confined to pertinent facts. Opinions 
shall not be expressed nor the motives of others 
impugned. Your statement may not contain 
countercharges. Your reporting senior may note 
this letter in your next [fitness report] [performance 
evaluation] submitted after this letter becomes 
final, either by decision of higher authority upon 
appeal or by your decision not to appeal. Omit last 
sentence in cases involving Marine Corps enlisted 
personnel in paygrades E-4 or below. 

g. Appeals . The following rules apply to appeals of 
punitive letters (in addition to those rules contained in 
paragraph 7 of Part V, MCM, and sections 0116 and 
0117): 

(1) A copy of the report of captain's mast/office 
hours shall be provided to the individual upon request 
except where the interests of national security may be 
adversely affected. A copy shall be made available to 
the individual for use in preparation of a defense or 
appeal. See section 0116b(2) for similar rules 
concerning a copy of the record of an investigation or 
court of inquiry. 

(2) In forwarding an appeal from a punitive letter 
( see section 0116), the officer who issued the letter 
shall attach to the appeal a copy of the punitive letter 
and the record of investigation or court of inquiry or 
report of hearing on which the letter is based. The 
appeal shall be forwarded via the chain of command to 
the superior to whom the appeal is made. The superior 


to whom the appeal is made may direct additional 
inquiry or investigation into matters raised by the 
appeal if such action is deemed necessary in the 
interests of justice. 

(3) Appeals from a punitive letter imposed as 
nonjudicial punishment shall be forwarded as specified 
in section 0117. 

(4) The standard of review for a punitive letter of 
censure will be that the language in the letter is 
"accurate and relevant to the offenses committed and 
the punishment imposed." The contents of the appeal 
must be couched in terms that are temperate and 
factual. 

(5) Upon determination of the appeal, the superior 
shall advise the appellant of the action taken via the 
immediate commanding officer with copies of the 
action to officers in the chain of command through 
whom the appeal was forwarded. The superior shall 
also return all papers to the commander who issued the 
letter. 

h. Forwarding letter . Upon denial of any appeal 
taken, the lapse of a reasonable time after issuance (see 
section 0116a), or upon receipt of the addressee's 
statement that an appeal is not desired, a copy of the 
punitive letter and other documents required by the 
Chief of Naval Personnel or the Commandant of the 
Marine Corps, together with the addressee's statement 
or a written declaration that he does not desire to make 
a statement, shall be forwarded to Chief of Naval 
Personnel (PERS-82 for officers and PERS-83 for 
enlisted) or the Commandant of the Marine Corps 
(Code JAM for officers and Code MMRB-20 for 
enlisted), as appropriate. If the punitive letter is not 
sustained on appeal, a copy of the letter shall not be 
filed in the official record of the member concerned. 
The command issuing a punitive letter has the 
responsibility of assembling and forwarding at one 
time all the foregoing documents and of providing a 
copy of the forwarding letter for each via addressee. 

i. Cancellation . Material properly placed in an 
officer's or enlisted member's official record may not 
normally be removed or destroyed. 

(1) If a factual error or other reasons indicate that a 
punitive letter issued under article 15, UCMJ, and filed 


1-19 





in the addressee's official record results in a clear injus¬ 
tice, the officer referred to in paragraph 6 of Part V, 
MCM, and section 0118a, may cancel or direct 
cancellation of the punitive letter. Cancellation occurs 
by issuing a second letter to the officer or enlisted 
member concerned announcing the cancellation of the 
punitive letter and setting forth in detail the reason for 
cancellation. 

(2) If a punitive letter is canceled by superior 
authority before a copy of the original of such letter is 
forwarded to the Chief of Naval Personnel or the 
Commandant of the Marine Corps, the punitive letter 
will not be forwarded and copies of the punitive letter 
will be removed from all files relating to the member 
and destroyed. 

(3) If the cancellation occurs after a copy of the 
punitive letter has been forwarded, a copy of the letter 
of cancellation shall be forwarded to the Chief of 
Naval Personnel or the Commandant of the Marine 
Corps, as appropriate, as well as to any other 
addressees to whom copies of the punitive letter were 
forwarded. Upon receipt of the copy of the letter of 
cancellation, addressees will ensure that copies of the 
punitive letter shall not be filed in or, if already filed, 
shall be removed from, the member's official record 
and destroyed. The order or letter of cancellation or a 
copy thereof shall not be filed in the member's official 
records. 

(4) If a punitive letter is filed inadvertently or by 
mistake of fact, such document may be removed by the 
Chief of Naval Personnel or the Commandant of the 
Marine Corps, as appropriate. In other cases, only the 
Secretary of the Navy acting through the Board for 
Correction of Naval Records may order removal of 
punitive letters and other documents in official records. 

j. Public reprimands . Omission of the word "private" 
preceding "admonition or reprimand" in article 15, 
UCMJ, does not constitute authority to commanding 
officers to issue "public reprimands," which are looked 
upon with disfavor by the Department of the Navy. 

0115 ANNOUNCEMENT OE 

DISPOSITION OE NONJUDICIAL 
PUNISHMENT 

a. Publication . Publication of nonjudicial 


punishment results is rooted in the reasonable belief 
that it serves to deter other members of the organ¬ 
ization from committing similar offenses and that it has 
salutary effects upon the morale of the organization. 
Accordingly, commanding officers may, if the interests 
of the rehabilitation of the offender, good order, high 
morale, and perceptions of fairness so warrant, 
establish a policy whereby the disposition of 
nonjudicial punishment cases should be announced. 
See section 0509. Announcement may be, for 
example, by any or all of the methods below. 

b. Plan of the Day publication . The name, rate, 
offense(s), and disposition of the offender may be 
published in the plan of the day within 1 month of the 
imposition of nonjudicial punishment or, if the 
punishment is appealed, within 1 month of the date the 
appeal is denied, provided that the plan of the day is 
disseminated to military personnel only. If the plan of 
the day is disseminated to other than military 
personnel, nonjudicial punishment results may be 
published without the name of the accused. 

c. Bulletin boards . The name, rate, offense(s), and 
disposition of the individual case may be posted within 
1 month of the imposition of nonjudicial punishment 
or, if the punishment is appealed, within 1 month of 
the date the appeal is denied, on command bulletin 
boards for military personnel only. If command 
bulletin boards are accessible to other than military 
personnel, nonjudicial punishment results may be 
published without the name of the accused. 

d. Daily formation (Marine Corps) or morning 
quarters (Navy) . The name, rate, offense(s), and 
disposition of nonjudicial punishment cases may be 
announced at daily formations or morning quarters 
within 1 month of the imposition of nonjudicial 
punishment or, if the punishment is appealed, within 1 
month of the date the appeal is denied. 

0116 COMMAND ACTION ON NON¬ 
JUDICIAL PUNISHMENT APPEALS 

a. Time limit 

(1) In accordance with paragraph 7d of Part V, 
MCM, an appeal of nonjudicial punishment shall be 
submitted within 5 working days, excluding weekends 
and holidays, of the imposition of nonjudicial 









punishment, or the right to appeal shall be waived in 
the absence of good cause shown. In computing this 
appeal period, allowance shall be made for the time re¬ 
quired to transmit communications pertaining to the 
imposition of nonjudicial punishment and the appeal 
therefrom through the mails. The appeal period 
commences to run from the date of the imposition of 
the punishment, even though all or any part of the 
punishment imposed is suspended. 

(2) If it appears that good cause may exist which 
would make it impracticable or extremely difficult for 
the accused to prepare and submit the appeal within the 
5-day period, the accused should immediately advise 
the officer who imposed the punishment why good 
cause exists and request an appropriate extension of 
time within which to submit the appeal. Upon receipt 
of such a request, the officer who imposed the 
nonjudicial punishment shall determine whether good 
cause was shown and shall advise the offender that an 
extension of time is or is not granted. Absent such a 
request for extension, the officer acting on the appeal 
shall determine whether good cause was shown in an 
appeal submitted more than 5 days after the imposition 
of the nonjudicial punishment. 

b. Procedures 

(1) When the officer who imposed the 
punishment is not the accused's immediate 
commanding officer, the latter may forward the appeal 
directly to the officer who imposed the punishment for 
forwarding under section 0117. Similarly, the action 
of the superior on appeal may be forwarded by the 
officer who imposed the punishment directly to the 
offender's commanding officer for delivery. Copies of 
the correspondence should be provided for 
intennediate authorities in the chain of command. 

(2) In any case where nonjudicial punishment is 
imposed on the basis of information contained in the 
record of a court of inquiry or fact-finding body, a 
copy of the record, including the findings, opinions, 
and recommendations, together with copies of 
endorsements thereon, shall, except where the interests 
of national security may be adversely affected, be 
made available to the accused for examination in 
connection with the preparation of an appeal. In case 
of doubt, the matter shall be referred to the Judge 
Advocate General for advice. 


c. Contents of forwarding endorsement . The 
contents of the forwarding endorsement of the officer 
who imposed the punishment should normally include: 

(1) Comment on any assertions of fact contained in 
the letter of appeal which the officer who imposed the 
punishment considers to be inaccurate or erroneous. 

(2) Recitation of any facts concerning the offenses 
which are not otherwise included in the appeal papers. 
If such factual information was brought out at the 
captain's mast/office hours hearing of the case, the 
endorsement should so state and include any comment 
in regard thereto made by the appellant at the captain's 
mast/office hours. Any other adverse factual 
information set forth in the endorsement, unless it 
recites matters already set forth in official service 
record entries, should be referred to appellant for 
comment, if practicable, and he should be given an 
opportunity to submit a statement in regard thereto or 
state that he does not wish to make any statement. 

(3) As an enclosure, a copy of the completed mast 
report form-NAVPERS 1626/7 (Rev. 8-81) or Unit 
Punishment Book—NAVMC 10132 (Rev. 10-81 or 
NAVMC 10132 Rev. 8-75). 

(4) As enclosures, copies of all documents and 
signed statements which were considered as evidence 
at the captain's mast/office hours hearing or, if the 
nonjudicial punishment was imposed on the basis of 
the record of a court of inquiry or other fact-finding 
body, a copy of that record, including the findings of 
fact, opinions and recommendations, together with 
copies of any endorsements thereon. 

(5) As an enclosure, a copy of the appellant's 
record of perfonnance as set forth on service record 
page 9 (Navy) or Record of Service and NAVMC 
118(3) (Marine). 

0117 AUTHORITY TO ACT ON NON¬ 
JUDICIAL PUNISHMENT 
APPEALS 

a. When the officer who imposed punishment is in a 

Navy chain of command . Any appeal from nonjudicial 
punishment in accordance with paragraph 7 of Part V, 
MCM shall, in the absence of specific direction to the 


1-21 






contrary by an officer authorized to convene general 
courts-martial and superior in the chain of command to 
the offieer who imposed the punishment, be forwarded 
to the area coordinator or to a subordinate commander 
authorized to convene general courts-martial and 
designated by the area coordinator for this purpose. 
When the cognizant area eoordinator or a designated 
subordinate commander is not superior in rank or 
command to the officer who imposed the punishment 
or when the punishment is imposed by a eommanding 
officer who is an area eoordinator or a designated 
subordinate commander, the appeal shall be forwarded 
to the offieer authorized to convene general courts- 
martial and next superior in the chain of command to 
the offieer who imposed the punishment. For mobile 
units, the area coordinator or designated subordinate 
commander for the above purpose is the area 
coordinator or designated subordinate commander 
most accessible to the unit at the time of the 
forwarding of the appeal. 

b. When the officer who imposed punishment is in 

the chain of command of the Commandant of the 

Marine Corps . Any appeal from nonjudieial 
punishment in accordance with paragraph 7 of Part V, 
MCM shall, in the absenee of specific direction to the 
contrary by an officer authorized to eonvene general 
courts-martial and superior in the chain of command to 
the officer who imposed the punishment, be made to 
the officer who is next superior in the operational chain 
of command to the officer who imposed the 
punishment. When such review is impracticable due 
to operational commitments, as determined by the 
officer who imposed punishment, appeal from 
nonjudicial punishment shall be made to the Marine 
officer authorized to convene general eourts-martial 
geographically nearest and senior to the officer who 
imposed the punishment. That offieer may delegate 
appellate authority to any eommanding officer in his 
organization who is senior in grade and in level of 
command to the officer who imposed punishment. In 
no case, however, shall an officer not authorized to 
convene general courts-martial act on an appeal which, 
absent the impracticable eircumstanees, would have 
been aeted on by an officer authorized to convene 
general courts-martial. The appellant need not be, at 
the time of his appeal, a member of an organization 
within the chain of command of the officer acting on 
the appeal. In those eases in which the Commandant 
of the Marine Corps is the next superior in the chain of 


command and in which the officer who imposed 
punishment is not a general officer in command, the 
appeal shall, in the absenee of specifie direction to the 
contrary by the Commandant, be made to the Marine 
Corps general officer in command geographically 
nearest the officer who imposed the punishment. 

c. When _ punishment _is_ imposed _ within _a 

multiservice command or unit 

(1) An appeal from nonjudicial punishment 
imposed by a multiserviee commander or officer in 
charge shall, in the case of Navy personnel, be made to 
the nearest area coordinator or to a subordinate 
commander authorized to convene general courts- 
martial designated by the area coordinator for this 
purpose. However, when such area coordinator or 
designated subordinate eommander is not superior in 
rank to the offieer who imposed the punishment, the 
appeal shall, in the absenee of specifie direction to the 
contrary by the Chief of Naval Operations, be made to 
the naval officer exercising general court-martial 
jurisdiction geographically nearest and superior in rank 
to the officer who imposed the punishment. If 
directed, or in the event that an offieer cannot be found 
who is superior in rank to the offieer who imposed the 
punishment, the appeal shall be made to the Chief of 
Naval Operations. In the ease of Marine Corps 
personnel, an appeal from nonjudicial punishment 
shall, in the absenee of speeifie direetion to the 
contrary by the Commandant, be made to the Marine 
Corps general officer in command geographically 
nearest and superior in rank to the officer who imposed 
the punishment. If directed, or in the event that an 
offieer eannot be found who is superior in rank to the 
officer who imposed the punishment, the appeal shall 
be made to the Commandant. 

(2) An appeal from nonjudicial punishment 
imposed by an officer of the Marine Corps or Navy 
designated as a commanding officer pursuant to 
section 0106d shall be made to the eommander of the 
multiservice command who made the designation if 
such commander specifieally so directs. In the absence 
of sueh direetion, an appeal from nonjudieial 
punishment imposed by an officer of the Marine Corps 
shall be made to the Marine Corps general officer in 
command geographically nearest and superior in rank 
to the officer who imposed the punishment unless 
otherwise directed by the Commandant of the Marine 


1-22 







Corps. Absent direction to the contrary from the 
multiservice commander, an appeal from nonjudicial 
punishment imposed by an officer of the Navy shall be 
made to the nearest area coordinator or to a 
subordinate commander authorized to convene general 
courts-martial designated by the area coordinator for 
this purpose. However, when such area coordinator or 
designated subordinate commander is not superior in 
rank to the officer who imposed the punishment, the 
appeal shall be to the naval officer exercising general 
court-martial jurisdiction geographically nearest and 
superior in rank to the officer who imposed the 
punishment. 

d. Delegation of authority to act on appeals . Such 
authority may be delegated in accordance with the 
provisions of section 0106c. An officer who has 
delegated his nonjudicial punishment powers to a 
principal assistant under section 0106c may not act on 
an appeal from punishment imposed by such principal 
assistant. In such cases and in other cases where it 
may be inappropriate for the officer designated by 
subsection a or b to act on the appeal (as where an 
identity of persons or staff may exist with the 
command which imposed the punishment), such fact 
should be noted in forwarding the appeal. 

e. Rehearing after appeal . A superior authority, in 
acting on an appeal, may set aside a nonjudicial 
punishment due to procedural error that materially 
prejudiced a substantial right of the member on whom 
punishment was imposed, not amounting to a finding 
of insufficient evidence to impose nonjudicial 
punishment. In such event, if the superior authority 
specifically authorizes such in his other action on the 
appeal, additional proceedings under article 15, UCMJ, 
may be conducted by the officer who imposed the 
original nonjudicial punishment, or his other successor 
in command, with regard to those offenses for which 
the appellant received nonjudicial punishment in the 
original proceeding. Any punishment imposed during 
such additional proceedings may be no more severe 
than that awarded during the original proceedings 
unless other offenses, which occurred subsequent to 
the date of the nonjudicial punishment set aside, are 
included in the offenses charged and for which pun¬ 
ishment is imposed. An individual, whether or not 
attached to or embarked in a vessel, has no right to 
demand trial by court-martial for those offenses for 
which the rehearing was authorized (unless the appeal 
was granted on a claim pertaining to the validity of the 


accused's prior waiver of the right to demand trial by 
court-martial), but an individual who is not attached to 
or embarked in a vessel retains the right to demand 
trial by court-martial for any added offense which 
occurred subsequent to the date of the nonjudicial 
punishment which was set aside. 

0118 SUSPENSION, MITIGATION, 

REMISSION, SETTING ASIDE, AND 
VACATION OE SUSPENSION 

a. Definition of "successor in command ." For 
purposes of Article 15, UCMJ, and this chapter, the 
term "successor in command" refers to an officer 
succeeding to the command by being detailed or 
succeeding thereto as described in U.S. Navy Regula¬ 
tions, 1990 . The term is not limited to the officer next 
succeeding. 

b. Authority to suspend, mitigate, remit, set aside: 

new commander . When a person upon whom 
nonjudicial punishment has been imposed is thereafter, 
by competent transfer orders (including temporary 
additional duty orders), assigned to another command, 
unit, or activity, or returns to the parent activity after 
temporary additional duty elsewhere, the receiving 
commanding officer (or officer in charge) and his 
successor in coimnand may, under article 15(d), UCMJ, 
and the conditions set forth in paragraph 6 of Part V, 
MCM, exercise the same powers with respect to the 
punishment imposed as may be exercised by the 
officer who imposed the punishment, provided that the 
punishment so affected and, in the case of mitigation, 
the punishment to which such punishment is mitigated, 
is one within the authority of such new commander to 
impose. 

c. Intermption of probationary period . The running 
of the period of suspension of the punishment is 
intermpted by the unauthorized and unexcused 
absence of the probationer or by commencement of 
proceedings to vacate suspension of the punishment. 
The running of the period of suspension of punishment 
resumes as of the date the probationer's unauthorized 
absence ends, or as of the date of the intermption due 
to initiation of vacation proceedings if proceedings to 
vacate suspension of the punishment are concluded 
without vacation of the punishment. Similarly, the 
mnning of the period of suspension resumes as of the 
date of the intermption due to initiation of vacation 


1-23 










proceedings as to any portion of the punishment not 
vacated as a result of the proceedings. 

d. Vacation of suspension . A commander (or officer 
in charge) may only vacate a suspension of punishment 
if a violation of the conditions of suspension occurs 
within the period of suspension. Before vacating a 
suspension, a commander (or officer in charge) 
ordinarily shall notify the service member and give that 
member the opportunity to respond. Although a 
hearing is not required to vacate a suspension, if the 
punishment is of the kind set forth in article 15(e)(1)- 
(7), MCM, the service member should, unless 
impracticable, be given an opportunity to appear 
before the officer authorized to vacate suspension of 
the punishment to present any matters in defense, 
extenuation, or mitigation of the violations on which 
the vacation action is to be based. The order vacating 
a suspension must be issued within 10 working days of 
the commencement of the vacation proceedings. The 
decision to vacate suspension of nonjudicial 
punishment is not appealable under paragraph 7 of Part 
V, MCM. 

0119 RECORDS OF NONJUDICIAL 
PUNISHMENT 

a. Records . The records of nonjudicial punishment 
shall be maintained and disposed of in accordance with 
paragraph 8 of Part V, MCM, and implementing 
regulations issued by the Chief of Naval Personnel and 
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 infonnation 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; 


(b) the suspect is a commander with special 
court-martial convening authority; or 

(c) in the judgment of the superior commander: 

1. the incident in question may generate 
significant adverse publicity; 

2. formal disciplinary action or a 
recommendation for administrative separation 
processing may result; or 

2. other special circumstances warrant 
notification. 

(2) After nonjudicial punishment . Once the results 
of the nonjudicial punishment are final (i.e., the appeal 
process is completed or waived), a final report will be 
sent to Navy Personnel Command (PERS-834) or 
Commandant of the Marine Corps (JAM) as 
appropriate. ( See SECNAVINST 1920.6 (series), the 
Military Personnel Manual; or the Marine 
LEGADMINMAN). If the officer imposing the 
nonjudicial punishment is not a flag officer, the letter 
report will be submitted via the first flag officer in the 
administrative chain of command. Fleet or Type 
commanders may require the letter report be forwarded 
through command channels. These required reports 
are separate and distinct from any reported nonjudicial 
punishment that may be contained in investigations or 
other correspondence. See Appendix A-l-q for a 
sample letter with endorsement. 


1-24 







PART C - COURTS-MARTIAL 


SUBPART Cl - PRETRIAL MATTERS 


0120 DESIGNATION OE ADDITIONAL 
CONVENING AUTHORITIES 

a. General courts-martial . The Secretary of the 
Navy, acting under article 22(a)(8), UCMJ, has 
authorized the following officers, when in an active 
duty or inactive duty training status, to convene 
general courts-martial. This list is in addition to those 
officers authorized to convene general courts-martial 
by articles 22(a)(5) through (7) and 22(a)(9), UCMJ: 

(1) All flag or general officers, or their immediate 
temporary successors, in command of units or 
activities of the Navy or Marine Corps. 

(2) The following officers or their successors in 
command: 

Chief of Naval Operations 
Commandant of the Marine Corps 
Vice Chief of Naval Operations 
Deputy Commander, 

U.S. Naval Forces, Europe 
Deputy Chief of Naval Personnel 
Commanders, Fleet Air Commands 
Commander, Naval Reserve Force 
Commander, Naval Reserve Forces Command 
Commander, Naval Air Force Reserve 
Commanders, Naval Regions 
Commander, U.S. Naval Activities, Spain 
Commander, U.S. Naval Activities, 

United Kingdom 

Commanding Officer, U.S. Naval Support 
Activity, Naples 

Commander, Naval Air Warfare Center 
Weapons Division, China Lake 
Commander, Naval Training Center, 

Great Lakes 

Commanding Officer, Naval Air Station, 

Key West 

Commander, U.S. Naval Forces, Marianas 
Commanding Officer, Marine Corps 
Logistics Base, Barstow 
Commanding Officer, Naval Air Station, 

Sigonella 

Commanding Officer, Naval Air Station, 


Whidbey Island 

Commanding Officer, U.S. Naval 
Station, Roosevelt Roads 

Commanding Officer, Naval Air 
Station, Lemoore 

Commandant, Naval District 
Washington 

Commander, Combat Logistics Squadron 
TWO, Naval Weapons Station Earle, New 
Jersey 

Commander, Strategic Communications Wing 
ONE 

Commander, Marine Corps Base, Quantico 

Commander, Naval Installations 

(3) The Secretary of the Navy has designated and 
empowered the Commanding Officer, Naval Station, 
Norfolk, VA, and the Commanding Officer, Marine 
Detachment, U.S. Disciplinary Barracks, Fort Leave¬ 
nworth, KS, to exercise limited general court-martial 
jurisdiction for the purpose of performing the functions 
described in R.C.M. 1114, 1203(d), and 1204(b)(1), 
MCM. See section 0159d concerning the clemency 
powers of the Commanding Officer, Naval Station, 
Norfolk, VA, and the Commanding Officer, Marine 
Detachment, U.S. Disciplinary Barracks, Fort 
Leavenworth, KS. 

(4) Any officer whose nomination for promotion to 
flag or general officer rank has been confirmed by the 
Senate and who is serving in a flag or general officer 
billet and in command of a naval service unit or 
activity, or is the immediate temporary successor in 
command of such an officer. 

b. Special courts-martial . The Secretary of the Navy, 
acting under article 23(a)(7), UCMJ, has authorized 
the following officers, when in an active duty or 
inactive duty training status, to convene special courts- 
martial. This list is in addition to those officers 
authorized to convene special courts-martial by article 
23(a)(5) and (6), UCMJ: 

(1) Commanding officers of all battalions and 
squadrons, including both regular and reserve Marine 


1-25 




Corps commands. 

(2) Any commander whose subordinates in the 
operational or administrative chain of cormnand have 
authority to convene special courts-martial. 

(3) All commanders and eommanding officers of 
units and activities of the Navy, including 
precommissioning units commanded by lieutenant 
commanders (0-4) or above, but not including inactive 
duty training Naval Reserve units. 

(4) All directors. Marine Corps Districts. 

(5) All administrative officers, U.S. Naval 
Shipyards. 

(6) All inspeetor-instructors and site commanding 
officers. Marine Corps Reserve organizations. 

(7) Commanding officers and offieers in charge of 
organic combat service support organizations 
providing eombat service support to Marine 
Expeditionary Brigades, Marine Expeditionary Units, 
or comparable Marine Air-Ground Task Forces. 

(8) Commanding officers of Marine Expeditionary 
Units and Marine Expeditionary Unit Service Support 
Groups. 

c. Summary courts-martial . Those officers who are 
empowered to convene general and special courts- 
martial may convene summary courts-martial. In addi¬ 
tion, the Secretary of the Navy has empowered all 
commanders, commanding officers, and officers in 
charge (if authorized) of inaetive duty training Naval 
and Marine Corps Reserve units and activities of the 
Navy and Marine Corps, who are in a duty status, to 
convene smumary courts-martial. 

0121 REQUESTS EOR AUTHORITY TO 
CONVENE COURTS-MARTIAL 

a. General courts-martial . If authority to convene 
general eourts-martial is desired for an offieer who is 
not empowered by statute or regulation to convene 
such courts-martial, a letter shall be forwarded to the 
Judge Advocate General (Code 20), via the Chief of 
Naval Operations or the Commandant of the Marine 
Corps (JAM), as appropriate, with the request that 


authorization be obtained from the Seeretary of the 
Navy pursuant to article 22(a)(8), UCMJ. 

b. Speeial and summary courts-martial . If authority 
to convene special or summary courts-martial is 
desired for commanding officers other than those listed 
in subsections 0120b and 0120c, and such command¬ 
ing officers are not empowered by statute or regulation 
to eonvene such courts, a letter shall be forwarded to 
the Judge Advocate General (Code 20), via the Chief 
of Naval Operations or the Commandant of the Marine 
Corps (JAM), as appropriate, with the request that 
authorization be obtained from the Seeretary of the 
Navy pursuant to article 23(a)(7), UCMJ, or artiele 
24(a)(4), UCMJ, as appropriate. 

c. Separate and detached units . The offieer 
designating an organization as separate or detaehed 
pursuant to U.S. Navy Regulations, 1990, may request 
that the Judge Advoeate General obtain from the 
Secretary of the Navy the authority for that 
organization's commanding officer or offieer in charge 
to convene special or summary courts-martial. The 
request shall state that the organization has been 
designated as separate or detaehed and shall reference 
article 23 (a)(7), UCMJ. No request is required for 
commands empowered under subsection 0120b(l). 

d. Commanding officers of staff enlisted personnel . 

If authority to convene speeial or summary eourts- 
martial is desired for an officer designated as the 
commanding officer of staff enlisted personnel under 
the provisions of U.S. Navy Regulations, 1990 , the 
designating commander shall request the Judge 
Advocate General to obtain authorization from the 
Secretary of the Navy pursuant to article 23(a)(7), 
UCMJ. 

e. Authority limited to summary eourts-martial . 
Requests for authority to convene summary eourts- 
martial are processed by the Judge Advocate General 
with other requests for authority to convene speeial 
eourts-martial. A single letter of authorization, signed 
by the Seeretary, will empower all addressees to 
convene special eourts-martial. Upon receipt of the 
Secretary's letter, therefore, a superior eommander who 
originally requested only smumary eourt-martial 
authorization for his subordinate eommander shall, 
pmsuant to seetion 0122(a)(1), issue a letter to that 
subordinate eommander restricting the authority 
granted to the convening of surmuary eourts-martial. 


1-26 










Copies of such letters of restriction shall be forwarded 
to the Judge Advocate General (Code 20). 

f Requests for courts-martial convening authority 

shall contain the following information, if applicable : 

(1) The number of cases referred to the type of 
court-martial for which the convening authority is 
being sought. 

(2) If reorganization or downgrading of a 
command billet is the reason for such a request, state 
same and how the change affects the current and 
prospective convening authority. 

(3) State who would handle military justice matters 
if the requested convening authority is not approved. 

(4) The number of commands and tenant 

commands the prospective convening authority is 
responsible for, both operationally and 

administratively. 

(5) The number of personnel, officer and enlisted, 
the prospective convening authority is responsible for, 
both operationally and administratively. 

(6) If applicable, the geographical reasons that 
necessitate the appointment of such authority. 

g. Record maintenance . Copies of all Secretarial 
letters of authorization are maintained in the Criminal 
Law Division, Office of the Judge Advocate General. 

0122 GENERAL RESTRICTIONS ON 

EXERCISE OF COURT-MARTIAL 
JURISDICTION 

a. Special and summary courts-martial 

(1) The exercise of authority to convene summary 
and special courts-martial may be restricted by a 
competent superior commander. A summary court- 
martial convening authority is authorized to direct a 
pretrial investigation under article 32, UCMJ. 

(2) A special court-martial convening authority 
may not refer a capital offense to trial without the prior 
consent of the officer exercising general court-martial 
jurisdiction over the command. 


b. Units attached to ships . The commanding officer 
or officer in charge of a unit attached to a ship of the 
Navy for duty therein should, as a matter of policy 
while the unit is embarked therein, refrain from 
exercising any power he might possess to convene and 
order trial by special or summary court-martial, 
referring all such matters to the commanding officer of 
the ship for disposition. The foregoing policy does not 
apply to Military Sealift Command vessels operating 
under a master, nor is it applicable where an organized 
unit is embarked for transportation only. When an 
organized unit is embarked for transportation only in a 
ship of the Navy, the officer in command of such 
organized unit shall retain the authority possessed over 
such unit prior to embarkation, including disciplinary 
authority. Under ordinary circumstances, the internal 
control and discipline of a unit embarked for trans¬ 
portation only shall be left to the commanding officer 
of that unit. Nothing in the foregoing shall be 
construed as impairing the paramount authority of the 
commanding officer of the ship, including disciplinary 
authority, over all personnel of the naval service 
embarked. In the case of units embarked for 
transportation only, however, the commanding officer 
of the ship should take disciplinary action under the 
UCMJ over members of such embarked units only in 
unusual cases concerning incidents occurring on board 
the ship. 

0123 EXERCISE OF COURT-MARTIAL 
JURISDICTION OVER RETIRED, 
RESERVE, FLEET RESERVE, FLEET 
MARINE CORPS RESERVE, AND 
DISCHARGED PERSONNEL 

a. Policy . In all cases in which jurisdiction is 
dependent upon the provisions of article 2(a)(4), (5), or 
(6), and article 3(a), (b), or (c), UCMJ, the following 
policies apply; 

(l)No case of a retired member of the regular 
component of the Navy or Marine Corps not on active 
duty but entitled to receive pay, a retired member of 
the Naval Reserve or Marine Corps Reserve not on 
active duty who is receiving hospitalization from an 
armed force, or a member of the Fleet Reserve or Fleet 
Marine Corps Reserve not on active duty will be 
referred for trial by court-martial without the prior 
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 
either at the time of the alleged offense or at the time 
they were accused or suspected of the offense. 
Members described in this subsection may not be 
recalled to active duty solely for trial by court-martial. 
Such members are amenable to court-martial jurisdic¬ 
tion at all times and, if referred to court-martial, are 
directed to appear. 

(2) No case in which jurisdiction is based on article 
3(a), (b), or (c), UCMJ, will be referred for trial by 
court-martial without the prior authorization of the 
Secretary of the Navy. 

(3) If authorization is withheld under subsections 

(1) or (2), the Judge Advocate General shall indicate 
alternative action or actions, if any, to the convening 
authority. 

b. Request _for_ authorization . Requests for 

authorization in cases in which jurisdiction is based on 
article 3(a), (b), or (c), UCMJ, should contain the 
following information; 

(1) the nature of the offense or offenses charged; 

(2) a summary of the evidence in the case; 

(3) the facts showing amenability of the accused or 
suspected person to trial by court-martial; 

(4) whether civil jurisdiction exists; 

(5) the military status of the accused or suspected 
person at the present and at the time of the alleged 
offense; and 

(6) the reasons which make trial by court-martial 
advisable. 

Requests shall be addressed to the Secretary of the 
Navy, via the Judge Advocate General (Code 20) or 
Commandant of the Marine Corps (JAM), as 
appropriate, and shall be forwarded by air mail or other 
expeditious means. If considered necessary, authoriza¬ 
tion may be requested directly by message or 
telephone. 

c. Apprehension and restraint . Specific authorization 
of the Secretary of the Navy is required prior to 


apprehension, arrest, or confinement of any person 
who is amenable to trial by court-martial solely by 
reason of the provisions of article 2(a)(4), (5), or (6) or 
article 3(a), (b), or (c), UCMJ. 

d. .Jurisdiction over reserve component personnel 
under article 3(d), UCMJ . A member of a reserve 
component subject to the UCMJ is not, by virtue of 
termination of a period of active duty or inactive duty 
training, relieved from amenability to jurisdiction of 
the UCMJ for an offense against the UCMJ committed 
during such period of active duty or inactive duty 
training. 

e. Order to active duty in the case of reserve 

component personnel not on active duty 

(1) When jurisdiction is based upon article 3(d), 
UCMJ, members of a reserve component not on active 
duty may be ordered to active duty involuntarily only 
by an officer described in subsection (4) for the 
purpose of investigation under article 32, UCMJ, trial 
by court-martial, or imposition of nonjudicial 
punishment for offenses committed while subject to 
the UCMJ without regard to any change between 
active and reserve service or within different categories 
of reserve service subsequent to commission of the 
offense. 

(2) Requests for an order to active duty under this 
subsection may be submitted only by officers 
empowered to convene courts-martial. Funding for 
these orders should be tasked to the appropriation used 
on the original set of orders during which the event 
necessitating recall occurred. See section 0145. 
Decisions regarding funding for recall of a 
serviccmember do not confer any procedural or 
substantive rights upon the member. 

(3) Requests for an order to active duty under this 
subsection shall: 

(a) contain the complete identity of the accused 
(grade, full name. Social Security number, designator); 

(b) include a detailed summary of the con¬ 
templated charges and specifications or a copy of the 
charge sheet, if available (care should be exercised to 
avoid triggering the speedy trial provisions of R.C.M. 
707, MCM; 


1-28 








(c) provide a summary of evidence in the ease; 

(d) state facts showing amenability to trial by 
court-martial or imposition of nonjudicial punishment; 

(e) indicate the military status, unit to which 
assigned and its location, and home address of the 
accused at the time of submission and at the time of 
commission of the alleged offenses; and 

(f) indicate where the accused should be ordered 
to active duty and why the order to active duty is 
advisable; 

(g) indicate the appropriation used on the 
original set of orders during which the event 
necessitating recall occurred. 

(4) The request should be addressed to an officer 
empowered to convene a general court-martial in the 
chain of command of the accused at the time of its 
submission, as designated in section 0120a, and who is 
superior in grade to the submitting officer, or to the 
Secretary of the Navy, if confinement authority is 
requested. See sections 0127d and 0134. If necessary, 
the request to order an accused to active duty under 
this subsection may be made directly by message or 
telephone. 

(5) Unless the order to active duty was approved 
by the Secretary, Under Secretary, or Assistant 
Secretary of the Navy, the accused may not be 
sentenced to confinement or be required to serve a 
punishment of any restraint on liberty during a period 
other than a period of inactive duty training or active 
duty. 

f Release from active duty of reserve component 

personnel described in subsection e 

(1) Reserve component personnel ordered to active 
duty without Secretarial approval must be released 
from active duty no later than the close of business 1 
full work day after completion of disciplinary 
proceedings, i.e., announcement of the sentence by a 
court-martial or imposition of punishment under article 
15,UCMJ. 


(2) Reserve component personnel ordered to active 
duty with Secretarial approval may be retained on 
active duty to serve a punishment of confinement or 
other restraint on liberty, the execution of which is not 
precluded by the terms of a pretrial agreement. Unless 
retention on active duty is authorized by other 
authority, such persons must be released from active 
duty no later than the close of business 1 full work day 
after completion of disciplinary proceedings or service 
of the sentence to confinement or other restraint on 
liberty. See R.C.M. 202(c), MCM and section 0134. 

g. Tolling statute of limitations . The fore¬ 
going mles shall not impede the preferral and 
processing of sworn charges under article 30, UCMJ, 
when such preferral and processing are necessary to 
prevent barring of trial by the statute of limitations. 
See article 43, UCMJ. 

0124 EXERCISE OF COURT-MARTIAL 

JURISDICTION IN CASES TRIED IN 
DOMESTIC OR FOREIGN CRIMINAL 
COURTS 

a. Policy . When a person in the naval service has 
been tried in a state or foreign court, whether convicted 
or acquitted, or when a member's case has been 
"diverted" out of the regular criminal process for a 
probationary period, or has been 

adjudicated by juvenile court authorities, military 
charges shall not be referred to a court-martial or be 
the subject of nonjudicial punishment proceedings for 
the same act or acts, except in those unusual cases 
where trial by court-martial or the imposition of 
nonjudicial punishment is considered essential in the 
interests of justice, discipline, and proper 
administration within the naval service. Such unusual 
cases shall not be referred to trial by court-martial or 
be the subject of nonjudicial punishment proceedings 
without specific permission as provided below. This 
policy is based on comity between the Federal 
Government and state/foreign governments and is not 
intended to confer additional rights upon the accused. 

b. Criteria . Referral for trial or the imposition of 
nonjudicial punishment within the terms of this policy 
shall be limited to cases that meet one or more of the 
following criteria: 

(1) Cases in which punishment by civil authorities 


1-29 







consists solely of probation, and local practice, or the 
actual terms of probation, do not provide rigid 
supervision of probationers, or the military duties of 
the probationer make supervision impraetical. 

(2) Cases in which civilian proceedings concluded 
without eonviction for any reason other than acquittal 
after trial on the merits. 

(3) Other cases in which the interests of justice and 
diseipline are considered to require further action 
under the UCMJ (e.g., where eonduct leading to trial 
before a state or foreign court has reflected adversely 
upon the naval service or when a partieular and unique 
military interest was not or eould not be adequately 
vindieated in the civilian tribunal). 

c. Procedure 

(1) General and special courts-martial . No case 
described in subsection b shall be referred for trial by 
general or speeial eourt-martial without the prior 
permission of the Judge Advoeate General. For 
purposes of this rule, permission of the Judge 
Advocate General to refer charges to a eourt-martial 
ineludes permission for trial itself; aeeordingly, once 
permission for referral has been obtained, no additional 
permission is required. Requests for such permission 
shall be forwarded by the general court-martial 
authority concerned (or by the special court-martial 
authority concerned via the general court-martial 
authority) to the Judge Advoeate General (Code 20) 
(via the Commandant of the Marine Corps (JAM) or 
copy to the Chief of Naval Personnel, as appropriate). 
Pennission of the Judge Advocate General is not 
required for court-martial proceedings if the civilian 
adjudication or diversion occurs after the military 
charges have been referred to a court-martial. 

(2) Summary _ courts-martial _and_ nonjudicial 

punishment proceedings . No case described in 
subseetion b shall be referred for trial by summary 
court-martial, or be the subject of nonjudicial 
punishment proceedings without the prior pennission 
of the offieer exercising general court-martial jurisdic¬ 
tion over the eommand. Grants of such pennission 
shall be reported by the general eourt-martial authority 
concerned by means of a letter addressed to the Judge 
Advocate General (Code 20) in whieh he shall 
describe the offense alleged, the action taken by eivil 


authorities, and the eircumstanees bringing the case 
within one or more of the exceptions to the general 
policy. Permission of the officer exercising general 
court-martial jurisdiction over the command is not re¬ 
quired for summary court-martial proceedings if the 
civilian adjudication or diversion occurs after the 
military charges have been referred to a court-martial. 

(3) Reporting requirements . The provisions of this 
section do not affect the reporting requirements or 
other actions required under other regulations in eases 
of convictions of service personnel by domestic or 
foreign courts and adjudications by juvenile court 
authorities. 

d. Limitations . Persoimel who have been tried by 
courts that derive their authority from the United 
States, such as U.S. District Courts, shall not be tried 
by court-martial or be the subject of nonjudicial 
punishment for the same act or acts. 

0125 EXERCISE OF COURT-MARTIAL 
JURISDICTION OVER MAJOR 
FEDERAL OFFENSES 

a. Background . The Federal eivil authorities have 
concurrent jurisdiction with military authorities over 
offenses eommitted by military personnel which 
violate both the Federal criminal law and the UCMJ. 
The Attorney General and the Secretary of Defense 
have agreed on guidelines for determining which 
authorities shall have jurisdietion to investigate and 
prosecute major erimes in partieular cases. See 
Appendix 3, MCM. The administration of this 
program on behalf of the naval service has been 
assigned to the Naval Criminal Investigative Service 
Command (NCIS). Guidelines are set forth in 
SECNAVINST 5520.3 series. 

b. Limitation on court-martial jurisdiction . In order 
to ensure that actions under the UCMJ do not preclude 
appropriate aetion by civilian Federal authorities in 
cases likely to be prosecuted in U.S. District Courts, 
convening authorities shall ensure that appropriate 
consultation under the Memorandum of Understanding 
between the Departments of Defense and Justiee has 
taken plaee prior to issuanee of a grant of immunity, 
approval of a pretrial agreement, or trial by court- 
martial. See Appendix 3, MCM. Accordingly, com¬ 
manding officers receiving information indicating that 


1-30 










naval personnel have eominitted a major Federal 
offense (ineluding any major criminal offense, as 
defined in SECNAVINST 5520.3 series, eommitted 
on a naval installation) shall refrain from taking aetion 
with a view to trial by court-martial, but shall refer the 
matter to the senior resident agent of the cognizant 
NCIS office for a determination in accordanee with 
SEC- NAVINST 5520.3 series. In the event that the 
investigation of any such case is referred to a Federal 
civilian investigative agency, any resulting proseeution 
nonnally will be condueted by the eognizant United 
States Attorney, subjeet to the exceptions set forth 
below. 

c. Exceptions 

(1) Where it appears that naval personnel have 
cormnitted several offenses, including both major 
Federal offenses and serious but purely military of¬ 
fenses, naval authorities are authorized to investigate 
all of the suspected military offenses, and sueh of the 
civil offenses as may be practicable, and to retain the 
accused for proseeution. Any such action shall be 
reported immediately to the Judge Advocate General 
and to the cognizant officer exercising general court- 
martial jurisdiction. 

(2) When, following referral of a case to a civilian 
Federal investigative ageney for investigation, the 
cognizant United States Attorney declines prosecution, 
the investigation normally will be resumed by the 
NCIS and the command may then commence court- 
martial proceedings as soon as the eircumstances 
warrant. 

(3) If, while investigation by a Federal civilian 
investigative ageney is pending, existing conditions 
require immediate proseeution by naval authorities, the 
offieer exercising general eourt-martial jurisdiction 
will contact the cognizant United States Attorney to 
seek approval for trial by court-martial. If agreement 
cannot be reached at the loeal level, the matter shall be 
referred to the Judge Advoeate General for disposition. 

d. Related matters . See chapter VI eoneeming the 
interview of naval personnel by Federal investigative 
agencies and the delivery of personnel to Federal 
authorities. See sections 0126 and 0138 through 0140 
regarding grants of immunity in eases involving 
civilian witnesses or national security. 


0126 DETERMINATION OE STATUS OE 
CASE AS NATIONAL SECURITY 
CASE, INVESTIGATION OE 
SUSPECTED NATIONAL SECURITY 
CASES AND EXERCISE OE 
JURISDICTION IN SUCH CASES 

a. National security case defined . "National security" 
is defined at Mil. R. Evid. 505(b)(2), MCM and 
further defined at R.C.M. 305(h)(2)(B), MCM. A case 
shall be defined and designated as a national seeurity 
case if, in the opinion of one of the National Seeurity 
Case Disposition Authorities (NSCDA) listed in 
subsection 0126f below, it is a case which, to any 
serious degree, involves the compromise of a military 
or defense advantage over any foreign nation or 
terrorist group; involves an allegation of willful 
compromise of classified information; affects our 
military or defense capability to successfully resist 
hostile or destruetive action, overt or covert; or 
involves an act of terrorism. Such cases include an 
attempt or conspiraey to commit such offenses, as well 
as conduet aiding and abetting in the eommission of 
such offenses or unlawfully assisting thereafter. Such 
offenses inelude, but are not limited to, UCMJ articles 
81, 92 (for violations of SECNAVINST 5510.36 and 
U.S. Navy Regulations), 104, 106, 106a, 107, 131, and 
134; and provisions of the U.S. Code, sueh as 18 USC 
792-94, 798, 1001, 2151-56, 2331-39b, 2381-85, 
2388-90; 42 USC 2272-77; and 50 USC 783. 

b. Case not designated as a national seeurity case . A 
case may involve matters and/or materials relating to 
the seeurity of the United States, yet need not be 
designated a national seeurity case if, in the opinion of 
the eognizant NSCDA, the ease does not, to a serious 
degree, involve eompromise of a military or defense 
advantage over a foreign nation or terrorist group; 
involve the willful compromise of classified 
information; substantially affeet our military or defense 
capability to resist hostile or destractive action 
successfully, eovertly or overtly; or constitute an act 
of terrorism. 

c. Referral to the Naval Criminal Investigative 
Service . Within the DON, NCIS is responsible for the 
investigation of actual, suspected, or alleged national 


1-31 








security incidents including, but not limited to, those 
offenses enumerated in subsection a above. 
Commanders and ommanding officers shall 
immediately refer any such incident to NCIS for 
investigation. SECNAVINST 5520.3 and 5510.36 
(series) also pertain. Upon the initiation of any NCIS 
investigation, NCIS shall notify the appropriate 
Department of Justice investigative agency in 
compliance with DODDIR 5525.7. 

d. Preliminary inquiry . Concurrent with NCIS 
notification and consistent with the NCIS investigative 
prerogative, the commander or commanding officer 
shall initiate a preliminary inquiry in accordance with 
SECNAVINST 5510.36 para. 12-2 and direct the 
inquiry be completed within 72 hours. The 
commander concerned shall also ensure the required 
72-hour reports are made under para. 12-4 and 12-8 of 
SECNAVINST 5510.36. These required 72-hour 
reports shall not be delayed awaiting a complete 
assessment of the potential compromise. In addition, 
the commander or commanding officer shall notify 
CNO (N2) in all cases involving sensitive 
compartmented information or intelligence infonnation 
(i.e., intelligence sources or methods, NOFORN 
material). 

e. Notice to the .fudge Advocate General and 

National _ Security _ Case _ Disposition _ Authority 

(NSCDA) . If any NCIS investigation or preliminary 
inquiry described in subsection 0126c or 0126d 
indicates that the case may meet the criteria of 
subsection 0126a or that a suspect may have 
cormnitted any of the offenses enumerated in 
subsection 0126a, whether or not such violation might 
also be chargeable under the UCMJ, within the same 
72 hours, the commanding officer and NCIS shall 
notify the Judge Advocate General (Code 17) and, for 
Marine Corps commands, the Judge Advocate 
Division (Military Justice). Within the same 72 hours, 
the cormnanding officer shall also notify the 
appropriate NSCDA listed in section 0126f In the 
event more than one NSCDA may have cognizance, 
coordinate with the next NSCDA in the administrative 
chain of command. 

f Limitations _on_ convening _ courts-martial . 

Commands authorized under R.C.M. 306(a) and 
401(a), MCM, to initially dispose of cases involving 
national security, as defined in subsection 0126a 


above, are directed to forward such cases to the 
appropriate NSCDA listed below for disposition. This 
provision is not intended to withdraw or limit the 
actual jurisdictional authority of commands identified 
under R.C.M. 306(a) and 401(a), MCM. This 
provision is promulgated for the exclusive benefit of 
the Government and does not confer any benefit upon 
an accused. It shall not be construed to support a 
jurisdictional challenge to a Courts-Martial convened 
by an officer not listed below, or to afford an accused 
in such Courts-Martial any other relief All officers 
otherwise empowered to dispose of offenses who 
receive reports or charges of offenses involving 
national security shall, after taking action prescribed in 
subsections 0126c-e, forward the completed 
investigation of such reports or charges for disposition 
directly and without delay to an appropriate NSCDA 
listed below. Second echelon commanders who report 
to the Chief of Naval Operations in the administrative 
chain of command who are not themselves a NSCDA 
shall forward such reports to Commander, U.S. 
Atlantic Fleet. Those NSCDA listed below may 
dispose of such reports or charges by any means 
authorized under R.C.M. 306(c) or 401(c), MCM, to 
include returning the case for disposition to any 
convening authority as they may designate. The 
following officers are designated NSCDAs: 

(1) Chief of Naval Operations; 

(2) Commandant of the Marine Corps; 

(3) Vice Chief of Naval Operations; 

(4) Assistant Commandant of the Marine Corps; 

(5) Commanders, U.S. Atlantic and Pacific Fleets, 
and U.S. Naval Forces, Europe; 

(6) Commander, U.S. Naval Forces Central 
Command; 

(7) Commanders, U.S. Marine Forces, Atlantic and 
Pacific; 

(8) Commanders, Sixth and Seventh Fleets; 

(9) Commanders, Naval Air Force, Submarine, and 
Surface Forces, U.S. Atlantic and Pacific Fleets; 


1-32 







(10) Commander, Naval Education and Training 
Command; 

(11) Commanding General, Marine Corps Combat 
Development Command, Quantico, VA; 

(12) Commanding General, Marine Corps Bases, 
Japan; 

(13) Commanding Generals, Marine Corps Bases, 
Camp Lejeune and Camp Pendleton; and 

(14) Commander, U.S. Marine Forces, Reserve. 

g. Courts-martial involving classified information . 
See SECNAVINST 5510.36 (series). Mil. R. Evid. 
505, and R.C.M. 806, MCM, for procedures relating to 
trial of cases involving classified infonnation. 

h. Reporting requirements by responsible command . 

Regardless of national security status and in addition to 
the 72 hour reporting requirement described above, in 
all cases where a possible violation of criminal law 
involves classified infonnation, whether or not 
designated a national security case, the responsible 
command, convening authority, or staff judge advocate 
will notify the Judge Advocate General (Code 17): 

(1) when criminal prosecution is contemplated. 
Judge Advocate General (Code 17) notification does 
not take precedence over, or substitute for, NCIS 
notification required by subsection 0126c; 

(2) whenever a major development occurs in the 
case or investigation (e.g., designation as a national 
security case, apprehension, involvement of other 
federal agencies); or 

(3) at least once every 30 days, whether or not 
there has been a major development unless the case is 
being reported by the NSCDA. Include CNO (N2) in 
the notification for all cases involving sensitive 
compartmented infonnation or intelligence infonnation 
(i.e., intelligence sources or methods, NOFORN 
material). 

0127 PRETRIAL RESTRAINT OF 
ACCUSED 

a. Custody and restraint of accused before or during 


trial . See R.C.M. 304, 305, and 804(c)(2), MCM. 

b. Counsel . Counsel shall be provided, if requested, 
to an accused in pretrial confinement prior to the initial 
review of the confinement; however, the accused has 
no right to an individual military counsel. 

c. Preliminary (probable cause) review : Within 48 
hours of the imposition of pretrial confinement under 
military control, a neutral and detached official must 
review the adequacy of the probable cause to believe 
the confinee has committed an offense and of the 
necessity for pretrial confinement. 

(1) This review does not require a hearing. 

(2) This determination need not be in writing, 
however, it is highly recommended that a written 
record be maintained. 

(3) The reviewing official must be a neutral and 
detached officer. The official may be the confinee's 
cormuanding officer, but this is not required. 
Additionally, nothing in this amendment prohibits the 
conraiander initially ordering an accused into pretrial 
confinement from conducting the 48-hour probable 
cause review. 

(4) The requirement for probable cause review is 
met, and therefore a separate determination of probable 
cause is not required, in the following circumstances: 

(a) the commanding officer, complying with 
R.C.M. 305(d), personally orders the accused into 
confinement; 

(b) the 72-hour letter report, as required by 
R.C.M. 305(h)(2), is signed by the cornmanding 
officer within 48 hours of the imposition of 
confinement; or 

(c) the 7-day review of pretrial confinement, as 
required by R.C.M. 305(i) and conducted by a neutral 
and detached initial reviewing officer, occurs within 48 
hours of the imposition of confinement. 

d. Initial review officer . The officer exercising 
general court-martial jurisdiction at the location of the 
confinement facility shall designate one or more 
officers of the grade of 0-4 or higher (primary and 


1-33 








alternate) to act as the initial review officer for 
purposes of R.C.M. 305(i)(2). The initial review 
officer shall maintain a copy of the documents 
considered and memorandum prepared under R.C.M. 
305(i)(6) in each case until completion of appellate 
review and shall forward a copy of the documents 
considered and the memorandum prepared to the 
officer exercising general court-martial jurisdiction 
from whom he derives the authority as initial review 
officer. The officers designated as initial review 
officers should be neutral and detached, should be 
selected for their maturity and experience, and, if prac¬ 
ticable, should have command experience. 

e. Reserve component personnel . Except as provided 
in section 0134b(2), reserve component personnel on 
inactive duty training shall not be placed in pretrial 
confinement unless ordered to active duty with the 
approval of the Secretary, Under Secretary, or Assis¬ 
tant Secretary of the Navy. See section 0123e(5). 

0128 FORWARDING OF CHARGES 

a. Forwarding of charges by an officer in a Navy 

chain of command 

(1) General _ court-martial _ cases . When a 

commanding officer, in taking action on charges, 
deems trial by general court-martial to be appropriate, 
but is not authorized to convene such court or finds the 
convening of such court impracticable, the charges and 
necessary allied 

papers will, in the absence of speeific direction to the 
contrary by an officer authorized to convene general 
courts-martial and superior in the chain of command to 
such commanding officer, be forwarded to the area 
coordinator or to the subordinate commander 
authorized to convene general eourts-martial and 
designated by the area coordinator for this purpose. 
For mobile units, the area coordinator or designated 
subordinate commander for this purpose is the area 
coordinator or designated subordinate commander 
most aeeessible to the mobile unit at the time of 
forwarding of the charges. See section 0129a for 
additional provisions in cases in which the forwarding 
officer is an accuser. 

(2) Special and summary courts-martial cases . 
When an officer in command or in charge, in taking 
action on charges, deems trial by special or summary 


court-martial to be appropriate, but is not authorized to 
convene such courts-martial, the charges and necessary 
allied papers will be forwarded to the superior in the 
chain of command authorized to convene the type of 
court-martial deemed appropriate. The officer 
authorized to convene general eourts-martial and 
superior in the chain of command to such officer in 
command or charge, may, however, on the basis of a 
local arrangement with the area coordinator or the 
designated subordinate commander, direct that such 
cases be forwarded to the area coordinator or the 
subordinate commander authorized to convene the type 
of court-martial deemed appropriate and designated by 
the area coordinator for this purpose. For mobile units, 
the area coordinator or designated subordinate 
commander for this purpose is the area coordinator or 
designated subordinate commander most accessible to 
the mobile unit at the time of the forwarding of the 
charges. See section 0129a for additional provisions in 
cases in which the forwarding officer is an accuser. 
Subject to the tenns of the local arrangement, forward¬ 
ing to the area coordinator or designated subordinate 
commander may also be resorted to even though the 
immediate or superior commanding officer of the 
accused is authorized to convene the type of eourt- 
martial deemed appropriate but finds such action 
impracticable. 

b. Forwarding of charges by an officer in the chain 

of command of the Commandant of the Marine Corps . 

When an officer in command or in charge, in taking 
action on charges, deems trial by general, special, or 
summary court-martial to be appropriate, but is not 
empowered to eonvene a court as deemed appropriate 
for the trial of the case, the officer will, in the absence 
of specific direction to the contrary by an officer au¬ 
thorized to convene general eourts-martial and superior 
in the ehain of eommand to such officer, forward the 
charges and necessary allied papers through the chain 
of command to an officer exercising the kind of court- 
martial jurisdiction deemed appropriate. See R.C.M. 
401(c)(2), MCM. See also section 0129b for addi¬ 
tional provisions in cases in which the forwarding 
officer is an accuser. 

0129 SUPERIOR COMPETENT 
AUTHORITY DEEINED 

a. Accuser in a Navy chain of command . Whenever 
a commanding officer eomes within the purview of 


1-34 










articles 22(b) and 23(b), UCMJ, the "superior 
competent authority" as used in those articles is, in the 
absence of specific direction to the contrary by an 
officer authorized to convene general eourts-martial 
and superior in the chain of command to such accuser, 
the area coordinator or the subordinate commander au¬ 
thorized to eonvene general or speeial eourts-martial, 
as appropriate, and designated by the area coordinator 
for this purpose. For mobile units, the area coordinator 
or designated subordinate commander for this purpose 
is the area coordinator or designated subordinate com¬ 
mander most accessible to the mobile unit at the time 
of forwarding of the charges. When the eognizant area 
coordinator or designated subordinate eommander is 
not superior in rank or command to the accuser, or 
when the accuser is an area eoordinator or designated 
subordinate commander, or if it is otherwise 
impossible or impracticable to forward the charges as 
specified above, they shall be forwarded to any 
superior officer exercising the appropriate court- 
martial jurisdiction. See R.C.M. 401 and 601(c), 
MCM. 

b. Accuser in the chain of command of the 
Commandant of the Marine Corps . Whenever a 
commanding officer eomes within the purview of 
articles 22(b) and 23(b), UCMJ, the "superior com¬ 
petent authority" as used in those Artieles is defined as 
any superior offieer in the chain of command 
authorized to convene a special or general court- 
martial, as appropriate. If such an officer is not 
reasonably available, or if it is otherwise impossible or 
impracticable to so forward the charges, they shall be 
forwarded to any superior officer exercising the 
appropriate court-martial jurisdiction. See R.C.M. 401 
and 601(c), MCM. 

0130 PERSONNEL OF COURTS-MARTIAL 

a. Military judges 

(1) Detailing 

(a) General court-martial judges . 

General court-martial judges may be detailed for trial 
of general and special eourts-martial by the Chief 
Judge, the circuit military judge, or the cireuit military 
judge's designee. 

(b) Special court-martial judges . Special court- 


martial judges may be detailed for trial of special 
eourts-martial by the Chief Judge, the circuit military 
judge, or the circuit military judge's designee. 

(2) Qualifieations and additional duties . The 
qualifications of military judges and additional duties 
to which military judges may be assigned are set forth 
in JAGINST 5813.4 series. 

(3) Oaths . A military judge, eertified in accordance 
with artiele 26(b), UCMJ, may take a one-time oath to 
perform his duties faithfully and impartially in all cases 
to which detailed. The oath may be taken at any time 
and may be administered by any officer authorized by 
article 136, UCMJ, and section 0902 of this manual to 
administer oaths. Once such an oath is taken, the 
military judge need not be res worn at any court-martial 
to which subsequently detailed. 

b. Counsel 

(1) Detailing . Navy and Marine Corps judge advo¬ 
cates may be detailed as trial and defense counsel by 
the judge advocate's commanding officer, officer in 
charge, or his designee. See section 0131 and 0132 for 
procedures relating to requests for individual military 
counsel. 

(2) Oaths . Any military counsel, certified in accor¬ 
dance with artiele 27(b), UCMJ, may be given a one¬ 
time oath. Such oath will customarily be administered 
when military eounsel is certified. The oath may be 
given at any time and by any officer authorized by 
article 136, UCMJ, and section 0902 of this manual to 
administer oaths. An officer certified under artiele 
27(b) who has taken such an oath need not be reswom 
when detailed as counsel or serving as individual 
military counsel in any subsequent court-martial. 

(3) Individual counsel, military (not certified) or 
civilian, requested by the accused must be sworn in 
each case. Detailed eounsel who are not certified in 
accordance with article 27(b), UCMJ, must be sworn 
in each case. Counsel who have taken one-time oaths 
administered by the Army, Air Force, or Coast Guard 
need not again be sworn in eourts-martial convened in 
the naval service. The oaths used for counsel not 
administered a one-time oath will be those prescribed 
in R.C.M. 807(b)(2) Dissuccion, MCM. 


1-35 











(4) The following oath may be used in 
administering a one-time oath to military counsel: 

I, _, do 

swear (or affirm) that I will faithfully perform the 
duties of counsel in any court-martial to which I 
am detailed as counsel or in which I participate as 
individual military counsel. [So help me God.] 

c. Members 

(1) Detailing . See R.C.M. 503(a), MCM. 

(2) Oaths . Court members may be given one 
oath for all cases which are referred to the 

court in accordance with the convening order which 
detailed them as members. In the event the convening 
order is amended, a new member may be sworn when 
he or she arrives. This oath may be administered by 
any officer authorized by article 136, UCMJ, and 
section 0902 of this manual to administer oaths. When 
court members are not sworn at trial, the fact that they 
have previously been sworn will be recorded in the 
transcript or record of trial. The oaths used for court 
members will be those prescribed in R.C.M. 807(b)(2) 
Dissussion, MCM. 

d. Reporters, interpreters, escorts, bailiffs, clerks, and 

guards 

(1) Qualifications of court reporters . Civilian and 
military court reporters shall be proficient in recording 
in shorthand or by mechanical, voice, or other means 
the proceedings of, and the testimony taken before, the 
court or commission, and shall be able to transcribe 
accurately the testimony taken. 

(2) Appointment of reporters and interpreters 

(a) Reporters . In each case before a general 
court-martial or before a military eommission, a court 
reporter or reporters shall be detailed. In a speeial 
court-martial, a court reporter or reporters may be 
detailed; however, if no reporter is detailed and sworn, 
the special court-martial may not adjudge a bad- 
conduct discharge. Detailed reporters shall be 
proficient in reeording in shorthand or by mechanical, 
voice, or other means the proceedings of, and the 
testimony taken before, the eourt or eommission. A 
reporter may be detailed by the eonvening authority of 


a summary eourt-martial, by the offieer who orders an 
investigation under article 32, UCMJ, or by the offieer 
who directs the taking of a deposition. As directed by 
the trial counsel of a general or speeial court-martial or 
by the summary court, the reporter shall prepare either 
a verbatim or a summarized record and shall preserve 
the complete shorthand notes or mechanieal or voice 
record of the proceedings as provided in section 
0150b. Additional clerical assistants may be detailed 
when necessary. See R.C.M. 501(c), MCM. 

(b) Interpreters . In eaeh case before a court- 
martial or military commission, in each investigation 
conducted under Artiele 32, UCMJ, and in each 
instance of the taking of a deposition, the convening 
authority or the offieer directing such proceeding shall 
appoint, when necessary, an interpreter for the eourt, 
commission, investigation, or officer taking the 
deposition. 

(e) Manner of appointment . Appointment of 
reporters and interpreters by the convening authority or 
authority directing the proeeedings may be effected 
personally by him, or, at his diseretion, by any other 
person. Such appointment may be oral or in writing. 

(3) Oaths 

(a) Reporters . Any court reporter, military or 
civilian, may be given a one-time oath. The oath nor¬ 
mally will be administered by trial counsel in the first 
court-martial to which the court reporter is assigned. 
Once such oath is taken, the court reporter need not be 
reswom at any trial or other proceeding to which 
assigned. The following oath may be used in 
administering a one-time oath to court reporters: 

I, _ do 

swear (or affirm) that I will faithfully perform the 
duties of reporter in any court-martial to which I 
am assigned as reporter. [So help me God.] 

(b) Interpreters . Interpreters will be sworn by 
the trial eounsel as provided in R.C.M. 807(b)(2) 
Dissussion, MCM. 

(4) Disqualification . Reporters, interpreters, 
escorts, bailiffs, clerks, and guards shall be disqualified 
as provided in R.C.M. 502(e)(2), MCM. 

(5) Duties . The duties of reporters, interpreters. 


1-36 
















escorts, bailiffs, clerks, and guards shall be as 
prescribed in R.C.M. 502(e)(3), MCM, NAV- 
MARTRIJUDICINST 5810.5, and by the military 
judge or trial counsel. A bailiff should be present at 
every trial by court-martial unless his presence is 
excused by the military judge. 

(6) Source and expenses of court reporters and 
interpreters . Whenever possible, reporters, 
interpreters, and clerical assistants shall be detailed 
from either naval or civilian personnel serving under 
the convening authority or officer directing the 
proceeding, or placed at his disposal by another officer 
or by other Federal agencies. When necessary, the 
convening authority or officer directing the proceeding 
may employ or authorize the employment of a reporter 
or interpreter, at the prevailing wage scale, for duty 
with a general or special court-martial, a military 
commission, an investigation under article 32, UCMJ, 
or at the taking of a deposition. No expense to the 
Government shall be incurred by the employment of a 
reporter, interpreter, or other person to assist in a court- 
martial, military commission, article 32 investigation, 
or the taking of a deposition, except when authorized 
by the convening authority or officer directing the 
proceeding. When required reporters or interpreters 
are not available locally, the convening authority or 
officer directing the proceeding shall communicate 
with the Chief of Naval Personnel or Commandant of 
the Marine Corps, as appropriate, requesting that such 
assistance be provided or authorized. 

e. Oaths of court-martial personnel . Where no form 
of oath is specified in this section, the oaths set out in 
R.C.M. 807(b)(2) Discussion, MCM, may be used. 

0131 STANDARDS FOR DETERMINING 
AVAILABILITY OE REQUESTED 
INDIVIDUAL MILITARY COUNSEL 

a. General . Article 38(b)(3)(B), UCMJ, provides that 
an accused has the right to be represented before a 
general or special court-martial or at an investigation 
under article 32, UCMJ, by military counsel of his own 
selection if that counsel is reasonably available. 
Article 38(b)(7), UCMJ, provides that the Secretary 
concerned shall, by regulation, define "reasonably 
available" for purposes of paragraph (3)(B) and 
establish procedures for determining whether the 
military counsel requested by an accused under that 


paragraph is "reasonably available." Pursuant to the 
provisions of article 38(b)(3) and (7), UCMJ, and in 
accordance with R.C.M. 506, MCM, the term 
"reasonably available" is hereafter defined, and the 
procedures for determining whether a military counsel 
requested by an accused is "reasonably available" are 
established. Counsel serving in the Army, Air Force, 
or Coast Guard, are "reasonably available" to represent 
a Navy or Marine Corps accused if not otherwise 
unavailable within the meaning of R.C.M. 506, MCM, 
or under regulations of the Secretary concerned for the 
Department in which such counsel are members. 
Since an accused has the right to civilian counsel in 
addition to detailed counsel or individual military 
counsel, retention of, or representation by, civilian 
counsel does not extinguish the right to representation 
by individual military counsel. It is the policy of the 
Secretary of the Navy that the right to individual 
military counsel shall be administered so as not to 
interfere with orderly and efficient trials by court- 
martial. 

b. Definitions 

(1) " Proceeding ." As used in this section, 
"proceeding" means a trial-level proceeding by general 
or special court-martial or an investigation under 
article 32, UCMJ. 

(2) " Commander ." For counsel assigned to a Naval 
Legal Service Office, Detachment, or Branch Office, 
the commander of the requested counsel is defined as 
the commanding officer of the cognizant Naval Legal 
Service Office; for counsel assigned to the Naval Civil 
Law Support Activity, the Commanding Officer, 
Naval Civil Law Support Activity; for counsel 
assigned to the Navy-Marine Corps Appellate Review 
Activity, the Officer in Charge, Navy-Marine Corps 
Appellate Review Activity; for all other counsel 
assigned to the Office of the Judge Advocate General, 
the Assistant Judge Advocate General for Military 
Justice (Code 02). For all other counsel, the 
commander is defined as the commanding officer or 
head of the organization, activity, or agency with 
which requested military counsel will be serving at the 
time of the proceeding. The commander is not 
disqualified from acting as the commander under this 
mle solely because the commander is also the 
convening authority. 


1-37 









(3) " Attorney-client relationship ." For purposes of 
this section, an attorney-client relationship exists 
between the accused and requested counsel when 
counsel and the accused have had a privileged 
conversation relating to a charge pending before the 
proceeding, and counsel has engaged in active pretrial 
preparation and strategy with regard to that charge. A 
counsel will be deemed to have engaged in active 
pretrial preparation and strategy if that counsel has 
taken action on the case which materially limits the 
range of options available to the accused at the 
proceeding. 

(a) Actions by counsel deemed to constitute 
active pretrial preparation and strategy which 
materially limit the range of options available to the 
accused include, but are not limited to; advising the 
accused to waive or assert a legal right, other than 
simply asserting the right to remain silent, where the 
accused has followed such advice by waiving or 
asserting that right; representing the accused at a 
pretrial investigation under article 32, UCMJ, dealing 
with the same subject matter as any charge pending 
before the proceeding; submitting evidence for testing 
or analysis; advising the accused to submit to a 
polygraph examination where the accused has 
followed such advice by so submitting; offering a 
pretrial agreement on behalf of the accused; submitting 
a request for an administrative discharge in lieu of trial 
on behalf of the accused; or interviewing witnesses 
relative to any charge pending before the proceeding. 

(b) Actions that, in and of themselves, will not 
be deemed to constitute "active pretrial preparation and 
strategy" include, but are not limited to: discussing the 
legal and factual issues in the case with the accused; 
discussing the legal and factual issues in the case with 
another person under the protection of the attorney- 
client privilege, such as another defense counsel; 
performing legal research dealing with the subject 
matter of the case; representing the accused in the 
review of pretrial confinement under R.C.M. 305, 
MCM; representing the accused in appellate review 
proceedings under article 70, UCMJ; or providing 
counseling to the accused concerning article 15, 
UCMJ. These actions should be appraised under a 
totality of the circumstances test to determine if they 
constitute "active pretrial preparation and strategy." 

(4) " Reasonably available ." All counsel serving on 
active duty in the Navy or Marine Corps, certified in 


accordance with article 27(b), UCMJ, and not 
excluded by subsections b(4)(a) through (e), below, 
may be determined to be "reasonably available" by the 
commander of requested eounsel. In making this 
determination, the commander will assess the impact 
upon the command should the requested counsel be 
made available. In so doing, the commander may 
consider, among others, the following factors: the 
anticipated duties and workload of requested counsel, 
including authorized leave; the estimated duration of 
requested counsel's absence from the command, 
including time for travel, preparation, and participation 
in the proeeeding; any unique or special qualifications 
relevant to the proceeding possessed by requested 
counsel; the ability of other counsel to assume the 
duties of requested counsel; the nature and complexity 
of the charges or the legal issues involved in the 
proceeding; the experience level and any special or 
unique qualifications of the detailed defense counsel; 
and the information or comments of the aeeused and 
the convening authority. Counsel deseribed in 
subsections b((4)(a) through (e), below, are not 
"reasonably available:" 

(a) Counsel who are flag or general officers; 

(b) Counsel who are perfonning duties as trial 
counsel; trial or appellate military judge; appellate 
defense or government counsel; court commissioner; 
prineipal legal advisor to a command, organization or 
agency having general court-martial convening 
authority, or the principal assistant to such legal 
advisor; instructor or student at a college, university, 
service school, or academy; or assigned as a 
commanding officer, exeeutive officer or officer in 
charge; 

(c) Counsel who are assigned to any of the 
following commands, activities, organizations, or 
agencies; Executive Office of the President; Office of 
the Secretary of Defense; Office of the Secretary of the 
Navy; Office of the Joint Chiefs of Staff; Office of the 
Chief of Naval Operations; Headquarters, U.S. Marine 
Corps; National Security Agency; Defense Intelligence 
Agency; Office of the Judge Advocate General; Navy- 
Marine Corps Appellate Review Activity; Naval Civil 
Law Support Activity; Office of Legislative Affairs; 
Office of the Defense Department or Navy Department 
Inspectors General; or any agency or department 
outside the Department of Defense; and 


1-38 




(d) Naval Legal Service Command counsel 
neither permanently assigned to the Naval Legal 
Service Office responsible for providing defense 
counsel services to the accused nor permanently 
assigned within 100 miles of the situs of the 
proceeding (determined in accordance with the official 
Table of Distances). The foregoing geographical 
limitations shall not apply in cases in which an article 
32, UCMJ, pretrial investigation is ordered for a 
preferred charge of a capital offense for which the 
sentence of death may be adjudged in accordance with 
R.C.M. 1004, MCM, or for a national security case 
designated in accordance with section 0126. 

(e) Marine Corps counsel who are permanently 
assigned to a U.S. Marine Corps command outside the 
Navy-Marine Corps Trial Judiciary Circuit where the 
proceeding is to be held unless the requested counsel is 
permanently assigned within 100 miles of the situs of 
the proceeding (determined in accordance with the 
official Table of Distances). The foregoing 
geographical limitations shall not apply in cases in 
which an article 32, UCMJ, pretrial investigation is 
ordered for a preferred charge of a capital offense for 
which the sentence of death may be adjudged in 
accordance with R.C.M. 1004, MCM, or for a national 
security case designated in accordance with section 
0126. 

(f) Notwithstanding the limitations regarding 
officers in charge set forth in subsection b(4)(b) above, 
the commanding officer of a Naval Legal Service 
Office shall have the discretion to make counsel 
serving as an officer in charge available under 
exceptional circumstances including, but not limited to, 
the complexity of a particular case or lack of 
experienced counsel otherwise available. 

c. Submission and forwarding of requests 

(1) Submission . A request for individual military 
counsel shall be made in writing by the accused, or by 
counsel for the accused on the accused's behalf, and 
shall be submitted to the convening authority via the 
trial counsel. The burden is on the counsel for the 
accused to state in the request the specific location and 
duties of requested counsel, if known, and to state 
clearly whether the accused claims to have an attorney- 
client relationship with requested counsel regarding 


one or more charges pending before the proceeding, 
and the factual basis underlying that assertion. The 
request shall also state any special qualifications of 
requested counsel that are relevant to the case. 

(2) Action by the convening authority . 

(a) If requested counsel is not on active duty in 
the armed forces, the convening authority shall 
promptly deny the request and so inform the accused, 
in writing, citing this provision. 

(b) If the requested counsel is on active duty in 
the Armed Forces and the request does not claim an 
attorney-client relationship regarding any charge 
pending before the proceeding and the requested 
counsel is not "reasonably available" as defined in 
subsection b(4)(a) through (d), above, the convening 
authority shall promptly deny the request and so 
inform the accused, in writing, citing this provision. 

(c) In all other cases, the convening authority 
shall forward the request to the commander of the 
requested counsel (i.e., the commander responsible for 
the counsel's daily supervision), providing the 
following in the forwarding endorsement: the nature of 
the charges; the convening authority's estimate of the 
duration of requested counsel's involvement in the 
proceeding, including time for travel, preparation and 
participation in the proceeding; and any other 
information or comments deemed appropriate. 

d. Action by the commander of requested counsel 

(1) Determining _ whether _an_ attorney-client 

relationship exists . Applying the criteria enumerated 
in subsection b(3), above, the commander shall 
determine whether requested counsel has an attorney- 
client relationship with the accused regarding any 
charge pending before the proceeding. 

(2) When there is an attorney-client relationship . If 
the commander determines that there is an attorney- 
client relationship regarding any charge pending before 
the proceeding, then the requested counsel should 
ordinarily be made available to act as individual 
military counsel without regard to whether he or she 
would otherwise be deemed "reasonably available" as 
defined in subsection b(4), above, unless there is "good 
cause" to sever that relationship, and provided that 


1-39 









requested counsel is eertified in accordance with article 
27(b), UCMJ. "Good cause" to sever an attorney- 
client relationship includes, but is not limited to, 
requested counsel's release from active duty or 
terminal leave. If requested counsel is not certified in 
accordance with article 27(b), UCMJ, the eommander 
shall promptly deny the request and so inform the 
accused, in writing, eiting this provision. If there is 
"good cause" to sever an attorney-client relationship, 
the commander shall apply the criteria and procedures 
in subsection d(3), below. 

(3) When there is no attorney-client relationship . If 
the commander detennines that there is no attorney- 
client relationship regarding any charge pending before 
the proceeding, the following procedures apply: 

(a) If the commander determines that requested 
counsel is not "reasonably available" as defined in 
subseetion b(4), above, the eommander shall promptly 
deny the request and so inform the accused, in writing, 
citing this provision. 

(b) If the commander determines that requested 
counsel is "reasonably available," the requested 
counsel shall be made available to represent the 
accused at the proceeding, and the commander shall 
promptly infonn the convening authority and the 
accused of this determination. 

e. Administrative review . The deeision whether 
requested counsel will be made available to act as 
individual military counsel is an administrative 
determination within the sole discretion of the 
commander, except as specifically provided below. If 
the commander declines to make requested counsel 
available, the accused may appeal that decision via the 
commander to the commander's immediate superior in 
command, but appeals may not be made which require 
action at the departmental or higher level. The basis 
for appeal will normally be abuse of discretion, but if 
the accused elaims that the commander making the 
determination did not have authority to do so, or did so 
on the basis of inaeeurate or incomplete information, 
the reviewing authority shall eonsider those allegations 
and, if warranted, direct corrective action. The appeal 
shall be promptly reviewed, and the eommander of 
requested eounsel, the convening authority and the 
accused shall be promptly informed of the deeision. 


f Approval of associate defense counsel . If 
individual military counsel has been made available to 
defend an accused at a proceeding, the detailed defense 
counsel normally shall be excused from further 
participation in the ease unless the authority who 
detailed the defense counsel, in his or her sole 
diseretion, approves a request from the accused that 
detailed defense counsel aet as associate defense 
counsel. The seriousness of the charges, the retention 
of civilian defense counsel, the complexity of legal or 
faetual issues, and the detailing of additional trial 
counsel are among the factors that may be considered 
in the exercise of this discretion. This decision is not 
subject to administrative review. 

0132 [Reserved] 

0133 ADDITIONAL MATTERS IN 
CONVENING ORDERS 

Each convening order shall be assigned a court-martial 
convening order number. The order shall be 
personally subscribed by the convening authority and 
shall show his name, grade, and title, including 
organization or unit. A copy of the convening order 
shall be furnished to each person named in such order. 

0134 ADDITIONAL MATTERS IN THE 
CASE OF CERTAIN RESERVE 
COMPONENT PERSONNEL 

a. Holdover of reserve eomponent personnel on 
active duty . Reserve component personnel on aetive 
duty may be extended involuntarily beyond their 
normal release date from aetive duty as a result of 
apprehension, arrest, confinement, investigation, or 
filing of charges that may result in trial by court- 
martial and execution of any sentence of a court- 
martial. See R.C.M. 202(c). 

b. Holdover of reserve component personnel on 
inaetive duty training 

(1) Reserve component personnel on inactive duty 
training may be retained in that status by an officer em¬ 
powered to convene courts-martial for not more than 2 
full working days past the end of inactive duty training 
if: 

(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 
10 years or death; 

(b) Approval, either oral or written, for holdover 
is obtained prior to expiration of inactive duty training 
from the officer empowered to convene a general 
court-martial in the chain of command of the accused, 
as designated in section 0120a and superior in grade to 
the requesting officer; and 

(c) Immediate action is taken to order the 
member to active duty for trial by court-martial. 

(2) An accused held over under this subsection 
may be placed in pretrial confinement as circumstances 
warrant. See R.C.M. 304 and 305. The order to active 
duty in such a case, however, must be approved by the 
Secretary, Under Secretary, or Assistant Secretary of 
the Navy, no later than 2 full working days past the 
end of inactive duty training. The request for an order 
to active duty under this subsection shall state the 
reasons why pretrial confinement is deemed necessary. 
See section 0123e. 

(3) If necessary, the request to order an accused to 
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. 


(2) Fine . Fines in the case of reserve component 
personnel permanently assigned to an inactive duty 
training unit shall be based on the total amount subject 
to forfeiture at the time adjudged. 

d. Sentence involving restraint on liberty 

(1) Personnel on inactive duty training . If the 
sentence pertains to reserve component personnel on 
inactive duty training, restraint on liberty shall not 
extend beyond the normal inactive duty training period 
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 
ordered to active duty for the sole purpose of serving 
such punishment unless the order to active duty 
receives Secretarial approval. See section 0123e. 

(2) Personnel on active duty . If the sentence 
pertains to reserve component personnel who have 
been ordered to active duty for disciplinary 
proceedings, the period of active duty may not be 
extended for the purpose of serving such punishment, 
nor may a sentence to confinement be adjudged, unless 
the order to active duty received Secretarial approval. 
See section 0123e 


SUBPART C2 - TRIAL MATTERS 


0135 ARTICLE 39(a), UCMJ, SESSIONS 

Article 39(a), UCMJ, sessions will be called by order 
of the military judge. Either counsel, however, may 
make a request to the military judge that such a session 


be called. The military judge of a general or special 
court-martial may, at an article 39(a) session, arraign 
the accused, hear arguments and rule upon motions, 
and receive the pleas of the accused. If the accused 
pleads guilty, the military judge may at that time make 


1-41 







the appropriate inquiry into the providenee of the 
accused's plea. The military judge may also at that 
time accept the plea of the accused. Upon aeeeptanee 
of a plea of guilty, the military judge is authorized to 
enter a finding of guilty immediately exeept when the 
plea is to a lesser included offense and the proseeution 
intends to proceed to trial on a greater offense. 

0136 DELEGATION OF AUTHORITY TO 
EXCUSE MEMBERS 

A general court-martial or special court-martial 
convening authority may delegate authority to excuse 
members under R.C.M. 505(e)(1), MCM, to the staff 
judge advocate or to a principal assistant. Before the 
court-martial is assembled, the eonvening authority's 
delegate may excuse members without cause shown; 
however, no more than one-third of the total number of 
members detailed by the eonvening authority may be 
excused by the convening authority's delegate in any 
one eourt-martial. After assembly, the convening 
authority's delegate may not excuse members. 

0137 PRETRIAL AGREEMENTS 

a. General . The proeedures and limitations set forth 
in R.C.M. 705, MCM, shall be followed for the 
negotiation and entry into a pretrial agreement between 
an aeeused and the convening authority. Appendix 
A-l-h, a suggested form for such agreements, must be 
modified as appropriate to include all of the 
agreements made between the accused and the 
convening authority. No matters "understood" 
between the parties should be omitted from the written 
agreement. 

b. Major Federal offenses . The authority of court- 
martial convening authorities to refer eases to trial and 
to approve pretrial agreements extends only to trials by 
courts-martial. In order to ensure that such actions do 
not preclude appropriate action by Federal eivilian 
authorities in cases likely to be prosecuted in the U.S. 
District Courts, court-martial convening authorities 
shall ensure that appropriate consultation under the 
Memorandum of Understanding between the 
Departments of Defense and Justiee has taken place 
prior to trial by court-martial or approval of a pretrial 
agreement in cases where such consultation is 
required. See Appendix 3, MCM. 


c. Limitations in national seeurity cases . No offieial 
of the DON is authorized to enter into a pretrial agree¬ 
ment in any national security case, as defined in 
section 0126, without first obtaining permission to do 
so from the Secretary of the Navy. If an offer to plead 
guilty is received from the accused or the aceused's 
counsel, the convening authority may enter into 
pretrial agreement discussions. If discussions result in 
terms which are mutually agreeable to the eonvening 
authority and the aeeused, the convening authority 
shall request, by priority message (with infonnation 
copies to the Chief of Naval Operations or 
Commandant of the Marine Corps, as appropriate, and 
the Judge Advoeate General), permission from the 
Seeretary of the Navy to enter into a written pretrial 
agreement embodying those tenns. The message 
request shall include the following: 

(1) The exact text of the proposed pretrial agree¬ 
ment; 

(2) A statement of the factual background of the 
offense(s); 

(3) Information pertaining to the identity of the 
accused; 

(4) A summary of the evidence which would be 
available for introduction at trial before findings or 
during any sentencing portion of trial by the 
Government or the accused; and 

(5) A summary of the faetors which warrant entry 
into a pretrial agreement. 

d. Advanced education obligation . A service- 
member having obligated serviee arising from 
reeeiving advanced education assistance must be 
advised prior to entering a guilty plea at Courts-Martial 
(in accordanee with a pretrial agreement or otherwise) 
that, if separated for miseonduet, he may be required to 
reimburse the United States for the cost of advanced 
education assistance not repaid by active duty service 
as speeified in the written agreement entered into with 
the Government prior to aeeepting advanced education 
assistance. See section 0171 and Appendix A-l-r(l). 

0138 AUTHORITY TO GRANT 

IMMUNITY FROM PROSECUTION 


1-42 






a. General . See R.C.M. 704, MCM. In certain cases 
involving more than one participant, the interests of 
justice may make it advisable to grant immunity, either 
transaetional or testimonial, to one or more of the 
participants in the offense in consideration for their 
testifying for the Government or the defense in the 
investigation and/or the trial of the prineipal offender. 
Transactional immunity, as that term is used in this 
seetion, shall mean immunity from prosecution for any 
offense or offenses to which the compelled testimony 
relates. Testimonial immunity, as that term is used in 
this seetion, shall mean immunity from the use, in aid 
of future prosecution, of testimony or other 
information compelled under an order to testify (or any 
information directly or indirectly derived from such 
testimony or other infonnation). The authority to grant 
either transaetional or testimonial immunity to a 
witness is reserved to officers exercising general eourt- 
martial jurisdiction. This authority may be exercised in 
any case, whether or not formal charges have been 
preferred, and whether or not the matter has been 
referred for trial. The approval of the Attorney 
General of the United States on certain orders to testify 
may be required, as outlined below. 

b. Procedure . The written recommendation that a 

certain witness be granted either transaetional or 
testimonial immunity in consideration for testimony 
deemed essential to the Government or to the defense 
shall be forwarded to an officer eompetent to convene 
a general court-martial for the witness for whom 
immunity is requested, i.e., any offieer exercising 
general court-martial jurisdiction. Such 

recommendation will be forwarded by the trial counsel 
or defense counsel in cases referred for trial, the 
pretrial investigating officer conducting an investiga¬ 
tion upon preferred charges, the counsel or recorder of 
any other fact-finding body, or the investigator when 
no charges have yet been preferred. The 

recommendation shall state in detail why the testimony 
of the witness is deemed so essential or material that 
the interests of justice cannot be served without the 
grant of immunity. The officer exercising general 
court-martial jurisdiction shall act upon such request 
after referring it to his staff judge advocate for con¬ 
sideration and advice. If approved, a copy of the 
written grant of immunity must be served upon the 
accused or his defense counsel within a reasonable 
time before the witness testifies. Additionally, if any 


witness is expected to testify in response to a promise 
of leniency, the terms of the promise of leniency must 
be reduced to writing and served upon the accused or 
his defense counsel in the same manner as a grant of 
immunity. 

c. Civilian witnesses . Pursuant to 18 U.S.C. sections 
6002 and 6004, if the testimony or other infonnation of 
a civilian witness at a court-martial may be necessary 
in the public interest, and if the civilian witness has 
refused or is likely to refuse to testify or provide other 
information on the basis of a privilege against self¬ 
incrimination, then the approval of the Attorney 
General of the United States, or his designee, must be 
obtained prior to the execution or issuance of an order 
to testify to such civilian witness. The cognizant 
officer exercising general court-martial jurisdiction 
may obtain the approval of the Attorney General in 
such a circumstance by directing a message or letter 
requesting the assistance of the Judge Advocate 
General (Code 20, via Code 17 in national security 
cases) in the fonn prescribed in section 0139. 

d. Cases involving national security . In all cases 
involving national security or foreign relations of the 
United States, the cognizant officer exercising general 
court-martial jurisdiction shall forward, in the form 
prescribed in subsection section 0139, any proposed 
grant of immunity to the Judge Advocate General for 
the purpose of consultation with the Department of 
Justice. Such cases include, but are not limited to, 
those enumerated in section 0126. See section 0125 
regarding investigations, limitations on dispositional 
authority, and relations between the Departments of 
Defense and Justice. See section 0137 regarding 
pretrial agreements. See section 0159 regarding 
remission and suspension of sentences in national 
security cases. 

e. Review . Under some circumstances, the officer 
granting immunity to a witness may be disqualified 
from taking reviewing action on the record of the trial 
before which the witness granted immunity testified. 
See U.S. V. Newman . 14 M.J. 474 (CMA 1983). A 
successor in command not participating in the grant of 
immunity would not be so disqualified under those 
circumstances. 

f. Form of grant . In any case in which a military 
witness is granted transactional immunity, the general 


1-43 









court-martial convening authority should execute a 
written grant substantially in the form set forth in 
Appendix A-l-i(l). In any case in whieh a military 
witness is granted testimonial immunity, the general 
court-martial convening authority should exeeute a 
written grant substantially in the form set forth in 
Appendix A-l-i(2). 

0139 CONTENT OF IMMUNITY REQUESTS 
WHEN APPROVAL OF THE 
ATTORNEY GENERAL IS REQUIRED 

a. Approval . In all cases in whieh approval of the 
Attorney General of the United States is required prior 
to the issuance of a grant of immunity, whether under 
section 0138c or 0138d, the cognizant officer 
exercising general Courts-Martial jurisdiction shall 
forward by message or letter the proposed order to 
testify and grant of immunity to the Judge Advocate 
General (Code 20, via Code 17 in national security 
cases). 

b. Order to testify . The order to testify should be 
substantially in the fonn set forth in Appendix 
A-l-i(3). Requests for assistance shall be in writing, 
should allow at least 3 weeks for consideration, and 
must contain the following information: 

(1) Name, citation, or other identifying infonnation 
of the proceeding in which the order is to be used. 

(2) Name and social security number, where 
possible, of the witness for whom the immunity is 
requested (see Appendix A-l-i-(4)). 

(3) Name of the employer or company with which 
a witness is associated or the military unit or 
organization to which a witness is assigned. 

(4) Date and place of birth, if known, of the wit¬ 
ness. 

(5) FBI or local police file number, if any, and if 
known. 

(6) Whether any state or Federal eharges are 
pending against the witness and the nature of any sueh 
charges. 

(7) Whether the witness is eurrently incareerated, 


under what conditions, and for what length of time. 

(8) A brief resume of the background of the inves¬ 
tigation or proeeeding before the agency or 
department. 

(9) A concise statement of the reasons for the 
request, including: 

(a) what testimony the witness is expeeted to 

give; 

(b) how this testimony will serve the publie 
interest; 

(e) whether the witness: 

1 Has invoked the privilege against self¬ 
incrimination; or 

2 Is likely to invoke the privilege; 

(d) If (9)(c)2 is applieable, then why it is 
anticipated that the prospective witness will invoke the 
privilege. 

(10) An estimate as to whether the witness is likely 
to testify in the event immunity is granted. 

(11) A statement refieeting whether or not the local 
district or state attorney and the U.S. Attorney have 
any intention of prosecuting the witness. The names 
and telephone numbers of those attorneys should also 
be provided. 

0140 POST-TESTIMONY PROCEDURE 
WHEN AUTHORITY TO GRANT 
IMMUNITY WAS OBTAINED FROM 
THE ATTORNEY GENERAL 

a. Infonnation . After a witness immunized in 
accordance with section 0138c or 0138d has testified, 
the following information shall be provided to the 
United States Department of Justice, Criminal Divisio- 
n. Immunity Unit, Washington, DC 20530, via the 
Judge Advocate General (Code 20): 

(I) Name, eitation, or other identifying 
information, of the proeeeding in which the order was 
requested. 


1-44 





(2) Date of the examination of the witness. 

(3) Name and residence address of the witness. 

(4) Whether the witness invoked the privilege. 

(5) Whether the immunity order was used. 

(6) Whether the witness testified pursuant to the 
order. 

(7) If the witness refused to comply with the order, 
whether contempt proceedings were instituted, or are 
contemplated, and the result of the contempt 
proceeding, if concluded. 

b. Verbatim transcript . A verbatim transcript of the 
witness' testimony, authenticated by the military judge, 
should be provided to the Judge Advocate General at 
the conclusion of the trial. No testimony or other 
information given by a civilian witness pursuant to 
such an order to testify (or any information directly or 
indirectly derived from such testimony or other 
information) may be used against him in any criminal 
case, except a prosecution for perjury, giving a false 
statement, or otherwise failing to comply with the 
order. 


0141 PERSONAL DATA AND CHARAC¬ 
TER OF PRIOR SERVICE OF THE 
ACCUSED 

If otherwise admissible, trial counsel are authorized to 
present, and summary court-martial officers are 
authorized to obtain and introduce into evidence, 
matters set out in R.C.M. 1001(b)(2), MCM. Records 
of nonjudicial punishment must relate to offenses 
committed prior to trial and during the current 
enlistment or period of service of the accused, 
provided such records shall not extend to offenses 
committed more than 2 years prior to the commission 
of any offense of which the accused stands convicted. 
In computing the 2-year period, periods of 
unauthorized absence as shown by the personnel 


records of the accused should be excluded. 

0142 RELEASE OF INFORMATION PER¬ 
TAINING TO ACCUSED PERSONS 

a. General . There are valid reasons for making 
information available to the public concerning the 
administration of military justice. The task of striking 
a fair balance among the protection of individuals 
accused of offenses, improper or unwarranted publicity 
pertaining to their cases, public understanding of the 
problems of controlling misconduct in the military 
service, and the workings of military justice, requires 
the exercise of sound judgment by those responsible 
for administering military justice and by representa¬ 
tives of the press and other news media. At the heart 
of all guidelines pertaining to the furnishing of 
information concerning an accused or the allegations 
against him is the mandate that no statements or other 
information shall be furnished to news media for the 
purpose of prejudicing the outcome of an accused's 
trial, or which could reasonably be expected to have 
such an effect. 

b. Applicability of regulations 

(1) Except as provided in subsection (2) below, 
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 
the commencement of an investigation directed to 
make recommendations concerning disciplinary action, 
until the imposition of nonjudicial punishment, 
completion of trial (court-martial sessions), or disposi¬ 
tion of the case without trial. These regulations also 
prescribe guidelines for the release or dissemination of 
information to public news agencies, to other public 
news media, or to other persons or agencies for 
unofficial purposes. 

(2) Judge advocates assigned by competent 
authority to represent an individual client other than 
the Government shall comply with the applicable 
provisions of JAGINST 5803.1 series, (Rules of 
Professional Responsibility for Attorneys Practicing 
Under the Supervision of the Judge Advocate General) 


1-45 





when making any statements concerning the subject 
matter of that representation. See , e.g., Rules 1.6 
(Confidentiality of Information), 3.6 (Extra-Tribunal 
Statements), and 4.1 (Truthfulness in Statements to 
Others). 

c. Release of information 

(1) As a general matter, release of infonnation 
pertaining to accused persons should not be initiated 
by persons in the naval service. Information of this 
nature should be released only upon specific request 
and, subject to the following guidelines, should not 
exceed the scope of the inquiry coneemed. 

(2) Except in unusual circumstances, infonnation 
subject to release under this regulation should be re¬ 
leased by the cognizant public affairs officer; requests 
for infonnation received from representatives of news 
media should be referred to the public affairs officer 
for action. When an individual is suspected or accused 
of an offense, care should be taken to indicate that the 
individual is alleged to have committed or is suspected 
or accused of having committed an offense, as distin¬ 
guished from stating or implying that the accused has 
committed the offense or offenses. 

d. Infonnation subject to release . On inquiry, the 
following information concerning a person accused or 
suspected of an offense or offenses may generally be 
released, without elaboration, except as provided in 
subsection f: 

(1) The accused's name, grade, age, unit, regularly 
assigned duties, duty station, and sex. 

(2) The general nature of the offense(s) of which 
the individual is accused or suspected. The fact that an 
accused has been charged with an offense may be 
released, but a statement explaining that the charge is 
merely an accusation and that the accused is presumed 
innocent until proven guilty must also be included. 

(3) The identity of the victim of any alleged or 
suspected offense, except the victim of a sexual 
offense. 

(4) The identity of the apprehending and inves¬ 
tigating agency, and the identity of the accused's 
counsel, if any. 


(5) The fact, time, and place of the apprehension of 
the accused. 

(6) The type and place of custody, if any. 

(7) Information which has become a part of the 
record of proceedings of the court-martial in open ses¬ 
sion. 

(8) The scheduling or result of any stage in the 
judicial process. 

(9) The denial by the accused of any offense or 
offenses of which he may be accused or suspected 
(when release of such information is approved by the 
counsel of the accused). 

e. Prohibited information . The following informa¬ 
tion concerning a person accused or suspected of an 
offense or offenses generally may not be released, 
except as provided in subsection f: 

(1) Subjective opinions, observations, or comments 
concerning the accused's character, demeanor, 
credibility, or expected testimony at any time (except 
as authorized in subsection d(5)), or guilt of the 
offense or offenses involved. 

(2) The prior criminal record (including other 
apprehensions, charges, or trials) or the character or 
reputation of the accused. 

(3) The existence or contents of any confession, 
admission, statement, or alibi given by the accused, or 
the refusal or failure of the accused to make any 
statement. 

(4) The perfonnance of any examination or test, 
such as polygraph examinations, chemical tests, 
ballistics tests, etc., or the refusal or failure of the 
accused to submit to an examination or test. 

(5) The identity or nature of physical evidence 
expected to be presented, or the identity, testimony, or 
credibility of possible witnesses, except as authorized 
in subsection d(3). Particularly objectionable are 
statements or comments concerning information or 
evidence which is known, or which reasonably should 
be known, to be inadmissible before the tribunal. 


1-46 





(6) The possibility of a plea of guilty to any offense 
charged or to a lesser offense and any negotiation or 
any offer to negotiate respecting a plea of guilty. 

(7) References to confidential sources or inves¬ 
tigative techniques or procedures. 

(8) Statements or opinions regarding the 
credibility, reputation, motives, or character of 
Department of Defense military or civilian officials. 

(9) Any other matter when there is a reasonable 
likelihood that the dissemination of such matter will 
affect the deliberations of an investigative body or the 
findings or sentence of a court-martial, or otherwise 
prejudice the due administration of military justice 
either before, during, or after trial. 

f Exceptional cases . The provisions of this section 
are not intended to restrict the release of infonnation 
designed to enlist public assistance in apprehending an 
accused or suspect who is a fugitive from justice or to 
warn the public of any danger that a fugitive accused 
or suspect may present. Further, since the purpose of 
this section is to prescribe generally applicable 
guidelines, there may be exceptional circumstances 
which warrant 

the release of information prohibited under subsection 
e, or the nonrelease of infonnation permitted under 
subsection d. Attention should be given to the 
SECNAV instmctions implementing the Freedom of 
Information Act (5720.42E) and the Privacy Act 
(5211.5C). Consultation with the command judge 
advocate, if one is assigned, or with the cognizant trial 
services office concerning interpretation and 
application of these instructions is encouraged. 

0143 SPECTATORS AT PROCEEDINGS 

a. At sessions of courts-martial . See R.C.M. 806, 
MCM. 

b. Consistent with R.C.M. 405(h)(3), MCM, the 
Convening Authority or investigating officer may 
direct that all or part of an article 32, UCMJ, 
investigation be held in closed session and that all 
persons not connected with the hearing be excluded 
therefrom. The decision to exclude spectators may be 
based on the need to protect classified information, to 
prevent disclosure of matters that will be 
inadmissible in evidence at a subsequent trial by 


Courts-Martial and are of such a nature as to interfere 
with a fair trial by an impartial tribunal, or consistent 
with appellate case law, for a reason deemed 
appropriate by the commander ordering the 
investigation or the investigating officer. The reasons 
for closing an article 32, UCMJ, investigation, and 
any objections thereto, shall be memorialized and 
included as an attachment to the report of 
investigation. Ordinarily, the proceedings of a 
pretrial investigation should be open to spectators. In 
cases dealing with classified information, the 
investigating officer will ensure that any part of a 
pretrial investigation (e.g., rights advisement) that 
does not involve classified information will remain 
open to spectators. 

0144 SECURITY OF CLASSIFIED MAT¬ 
TER IN JUDICIAL PROCEEDINGS 

a. General . Every precaution shall be taken by 
convening authorities, military judges, presidents of 
special courts-martial, summary courts, and trial 
counsel to protect the security of classified matter 
involved in judicial proceedings. If a trial of a ease 
involves classified infonnation, the convening 
authority, military judge, president of a special Courts- 
Martial, summary court, and trial counsel, as 
appropriate, are charged with the responsibility of 
ensuring compliance with applicable provisions of 
DON Information Security Program Regulation 
SECNAVINST 5510.36 (series), R.C.M. 401(d) and 
407(b), and Mil. R. Evid. 505, MCM. 

b. Seeurity clearance of personnel . If classified 
matter is to be used for prosecution, appropriate 
personnel security clearances in accordance with 
SECNAVINST 5510.36 (series) must be granted to all 
members of the court, members of the prosecution and 
defense, court reporters, and interpreters, and all other 
persons whose presence is required when elassified 
matter is introduced before the court. If the accused is 
represented by civilian defense counsel, such counsel 
must likewise be cleared before classified matter may 
be disclosed to him. The neeessity for clearing the 
accused and the praeticability of obtaining such 
clearance rests in the sound discretion of the convening 
authority and may be one of the considerations in the 
determination to try a particular case. If it appears 
during the course of a trial that classified matter will be 
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 
adjourn the court and refer the matter to the convening 
authority. 

c. Procedures concerning spectators . See R.C.M. 
806, MCM, which prescribes procedures necessary to 
prevent the dissemination of classified information to 
other than authorized persons. 

0145 FINANCIAL RESPONSIBILITY FOR 
COSTS INCURRED IN SUPPORT OP 
COURTS-MARTIAL 

a. Travel, per diem, fees, and mileage 

(1) The costs of travel and per diem of military 
personnel and civilian employees of the Department of 
the Navy, but excluding those of personnel attached to 
the Navy-Marine Corps Trial Judiciary when acting as 
military judges of courts-martial, will be charged to the 
operation and maintenance allotment which supports 
temporary additional duty travel for the convening 
authority of the court-martial. Such costs incurred by 
personnel attached to the Navy-Marine Corps Trial 
Judiciary when acting as military judges of courts- 
martial will be charged to the operation and 
maintenance allotment of the Judge Advocate General. 

(2) The costs of fees and mileage of civilians other 
than employees of the Department of the Navy will be 
charged to the operating budget which supports the 
temporary additional duty travel funds of the 
appropriate Navy or Marine Corps convening 
authority. See the Navy Comptroller Manual, Volume 
VII, paragraph 075133. 

b. Involuntary recall and extension on active duty of 

members in the Reserve component . Funding for these 
orders should be tasked to the appropriation used on 
the original set of orders during which the event 
necessitating recall occurred. Decisions regarding 
funding for recall of a servicemember do not confer 
any procedural or substantive rights upon the member. 
The available funding sources include: 

(1) Military Personnel Navy (MPN) - Active Duty 
for Special Work (ADSW) orders primarily supporting 
regular Navy commands/projects. 


(2) Reserve Personnel Navy (RPN) - Inactive Duty 
Training (IDT), Annual Training (AT), Active Duty 
for Training (ADT), and ADSW orders primarily 
supporting Navy Reserve commands/projects. 

c. Services and supplies . 

(1) The following costs of services and supplies 
provided by an activity in support of courts-martial 
will be charged to the operation and maintenance 
allotment of the convening authority: 

(a) In-house costs which are direct, out-of- 
pocket, identifiable, and which total $100.00 or more 
in a calendar month; and 

(b) Costs which arise under contracts which 
were entered into in support of courts-martial. 

(2) All other costs of services and supplies will 
be absorbed by the operation and maintenance 
allotment of the activity which provides the services or 
supplies. 

0146 EEES OF CIVILIAN WITNESSES 

a. Method of payment . The fees and mileage of 
civilian witnesses shall be paid by the disbursing 
officer of the command of a convening authority or 
appointing authority, or by the disbursing officer at or 
near the place where the tribunal sits or where a 
deposition is taken, when such disbursing officer is 
presented a properly completed public voucher for 
such fees and mileage signed by the witness and 
certified by one of the following: 

(1) Trial counsel or assistant trial counsel of the 
court-martial; 

(2) Summary court officer; 

(3) Counsel for the court in a court of inquiry; 

(4) Recorder or junior member of a board to 
redress injuries to property; or 

(5) Military or civil officer before whom a 
deposition is taken. 

b. Public voucher . The public voucher must be 


1-48 









accompanied by a subpoena or invitational orders (see 
the Joint Travel Regulations, Vol. 2, Chap. 6), and by a 
certified eopy of the order appointing the court-martial, 
court of inquiry, or investigation. If, however, a 
deposition is taken before charges are referred for trial, 
the fees and mileage of the witness eoneemed shall be 
paid by the disbursing offiee at or near the place where 
the deposition is taken upon presentation of a publie 
voueher, properly completed as prescribed above, and 
accompanied by an order from the officer who 
authorized the taking of the deposition, subscribed by 
him and directing the disbursing officer to pay to the 
witness the fees and mileage supported by the public 
voucher. When the civilian witness testifies outside 
the United States, its Territories and possessions, the 
publie voucher must be aeeompanied by a eertified 
copy of the order appointing the court-martial, court of 
inquiry, or investigation, and by an order from the 
convening authority or appointing authority, 
subseribed by him and directing the disbursing officer 
to pay to the witness the fees and mileage supported by 
the public voucher. 

c. Obtaining money for advanee tender or payment . 

Upon written request by one of the officers listed in 
subsection a, the disbursing officer under the command 
of the convening or appointing authority, or the 
disbursing officer nearest the place where the witness 
is found, will, at once, provide any of the persons listed 
in subseetion a, or any other officer or person 
designated for the purpose, the required amount of 
money to be tendered or paid to the witness for 
mileage and fees for one day of attendance. The 
person so receiving the money for the purpose named 
shall furnish the disbursing officer concerned with a 
proper receipt. 


d. Reimbursement . If an offieer charged with 
serving a subpoena pays from his personal funds the 
neeessary fees and mileage to a witness, taking a 
reeeipt therefor, he is entitled to reimbursement upon 
submitting to the disbursing officer such receipt, 
together with a certificate of the appropriate person 
named in subsection a to the effect that the payment 
was necessary. 

e. Certificate of person before whom deposition is 


taken . The certificate of the person named in 
subseetion a before whom the witness gave his 
deposition will be evidence of the fact and period of 
attendance of the witness and the place from which 
summoned. 

f. Payment of accmed fees . The witness may be paid 
accrued fees at his request at any time during the 
period of attendanee. The disbursing officer will make 
such interim payment(s) upon receipt of properly 
executed certifieate(s). Upon his discharge from 
attendance, the witness will be paid, upon the 
exeeution of a certificate, a final amount covering 
unpaid fees and travel, ineluding an amount for return 
travel. Payment for return travel will be made upon 
the basis of the actual fees and mileage allowed for 
travel to the court, or place designated for taking a 
deposition. 

g. Computation . Travel expenses shall be 
determined on the basis of the shortest usually traveled 
route in accordance with official schedules. 
Reasonable allowance will be made for unavoidable 
detention. 

h. Non-transferability of aecounts . Aceounts of 
civilian witnesses may not be transferred or assigned. 

i. Signatures . Signatures of witnesses signed by 
mark must be witnessed by two persons. 

j. Rates for civilian witnesses preseribed by law : 

(1) Civilian _ witnesses _not_in_ Government 

employ . A civilian not in Government employ, who is 
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 eourt or fact-finding body, will receive fees, subsis¬ 
tence, and mileage as provided in 28 U.S.C. section 
1821. Witness and subsistence fees are not prorated. 
Instead, any fractional part of a calendar day expended 
in attendance or qualifying for subsistence entitles the 
witness to payment for a full day. Further, nothing in 
this subseetion shall be construed as authorizing the 
payment of attendance fees, mileage allowances, or 
subsistence fees to witnesses for: 

(a) Attendance or travel which is not performed 
either as a direct result of being eompelled to testify 


1-49 












pursuant to a subpoena or as a direct result of invita¬ 
tional orders; or 

(b) Travel which is performed prior to being 
duly summoned as a witness; or 

(c) Travel returning to their places of residence if 
the travel from their places of residence does not 
qualify for payment under this subsection. 

(2) Civilian witnesses in Government employ . 
When summoned as a witness, a civilian in the employ 
of the Government shall be paid as authorized by Joint 
Travel Regulations. 

k. Supplemental construction of section . Nothing in 
this section shall be construed as permitting or 
requiring the payment of fees to those witnesses not re¬ 
quested, or whose testimony is determined not to meet 
the standards of relevancy and materiality in 
accordance with R.C.M. 703, MCM. 

l. Expert witnesses 

(1) The convening authority will authorize the 
employment of an expert witness and will fix the limit 
of compensation to be paid such expert on the basis of 
the normal compensation paid by United States 
Attorneys for attendance of a witness of such standing 
in United States courts in the area involved. 
Information concerning such normal compensation 
may be obtained from the nearest officer exercising 
general court-martial jurisdiction having a judge 
advocate assigned in other than an additional duty, 
temporary duty, or temporary additional duty capacity. 
Convening authorities at overseas commands will 
adhere to fees paid such witnesses in the Hawaiian area 
and may obtain infonnation as to the limit of such fees 
from the Commander, Naval Base, Pearl Harbor. See 
subsection m for fees payable to foreign nationals. 

(2) The provisions of subsection j are applicable to 
expert witnesses. However, the expert witness fee 
prescribed by the convening authority will be paid in 
lieu of ordinary attendance fees on those days the 
witness is required to attend the court. 

(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 


official empowered to authorize his employment (11 
Comp. Gen. 504). In the absence of such 
authorization, no fees other than ordinary witness fees 
may be paid for the employment of an individual as an 
expert witness. After an expert witness has testified 
pursuant to such employment, the certificate of one of 
the officers listed in subsection a, when presented to 
the disbursing officer, shall also enclose a certified 
copy of the authorization of the convening authority. 

m. Payment of witness fees to foreign nationals . 
Officers exercising general court-martial jurisdiction in 
areas other than a state of the United States shall 
establish rates of compensation for payment of foreign 
nationals who testify as witnesses, including expert 
witnesses, at courts-martial convened in such areas. 

0147 WARRANTS OF ATTACHMENT 

Warrants of attachment shall not be issued in any case 
without the prior approval of the Judge Advocate 
General acting for the Secretary of the Navy. See 
R.C.M. 703(e)(2)(G), MCM. 

0148 COURT-MARTIAL FORMS 

a. List. The forms listed below are used in courts- 


martial by 

the naval service: 

SF 1156 

Public Voucher for Fees and Mileage 
of Witnesses (9/73) 

SF 1157 

Claim for Fees and Mileage of 
Witness (9/73) 

DD453 

Subpoena for Civilian Witness (84 
AUG), S/N 0102-LF-000-4530 

DD 453-1 

Travel Order (84 AUG), S/N 0102- 
LF-000-4535 

DD455 

Report of Proceedings to Vacate 
Suspension (84 AUG), S/N 0102-LF- 
000-4550 

DD457 

Investigating Officer's Report (84 
AUG), S/N 0102-LF-000-4570 

DD458 

Charge Sheet (84 AUG), S/N 0102- 
LF-000-4580 

DD490 

Verbatim Record of Trial (1 Mar 70), 
S/N0102-LF-005-1201 


1-50 






DD 491 Summarized Record of Trial (1 Apr 
70), S/N0102-LF-005-1601 
DD 494 Courts-Martial Data Sheet (Optional)(l 

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 fonns are available from 
GSA Stores and Forms Supply Depots. See NAVSO 
Publication 2345. 


c. Fonns prescribed by MCM . Where fonns 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 

After final adjournment of a court-martial, the trial 
counsel or summary court-martial, as appropriate, will 
promptly notify the convening authority and the 
accused's commanding officer of the results of the trial. 


If the sentence includes confinement, notification shall 
be in writing in the form prescribed in Appendix A-l-j, 
completed so as to contain all applicable infonnation, 
and a copy forwarded to the commanding officer/ 
officer in charge of the brig or confinement facility in 
which the accused is confined. If the sentence includes 


1-51 




forfeitures and/or reduction in grade, a report of results 
of trial must be forwarded to the appropriate Personnel 
Support Detachment/Unit Diary Clerk and include, if 
applicable, information regarding approved requests 
for deferments of adjudged and/or automatic 
forfeitures and adjudged reductions in grade. 
Appendix A-l-j may be used in all cases. 

0150 RECORD OF TRIAL 

a. Authentication of record of trial in special courts- 

martial not involving a bad-conduct discharge . The 
record of trial of a special court-martial in which a bad- 
conduct discharge was not adjudged shall be 
authenticated in the same manner as general courts- 
martial and special courts-martial adjudging a bad- 
conduct discharge. SeeR.C.M. 1104(a)(2)(A), MCM. 

b. Retention of trial notes or recordings . The trial 
counsel in every general and special court-martial shall 
ensure that any notes (stenographic or otherwise) or 
any recordings (mechanical or voice) from which the 
record of trial was prepared are retained until such time 
as review of the case is final. 

c. Security classification . Records of trial containing 
classified matter shall be properly classified in 
accordance with the provisions of R.C.M. 1103(h), 
MCM, and SECNAVINST 5510.36 (series). Copies 
of such records for delivery to the accused shall be 
prepared and handled in accordance with R.C.M. 
1104(b)(1)(D), MCM. Attention is directed to the fact 
that, while SECNAVINST 5510.36 (series) requires 
that matter bear the overall classification of its highest 
component, that degree of classification is not then 
imparted to other components. Rather it authorizes 
and requires that a component be marked with the 
classification it warrants (if any). Misunderstanding of 
these provisions may result in erroneously marking as 
classified each page of a voluminous record, rendering 
review for downgrading unnecessarily difficult, and 
excision for delivery to the accused or counsel 
impossible. 

d. Summary court-martial record of trial . A report of 
summary court-martial shall be completed and attached 
to the record of trial for all summary courts-martial 
conducted, except for those which result in not guilty 
findings or dismissals to all charges and specifications. 
The form prescribed in Appendix A-l-p may be used 


to complete this requirement and attached to DD Form 
2329. Use of DD Form 2329 is not required, but is 
strongly recommended because it fulfills the 
requirements of R.C.M. 1305. 

(1) The following documents shall be attached to 
the report of summary court-martial: 

(a) Convening order; 

(b) Charge sheet; 

(c) Acknowledgement of rights on DD Form 
2329, if executed; and 

(d) Waiver of right to refuse summary court- 
martial, if executed. 

(2) A concise synopsis of the evidence considered 
by the summary court-martial on any charge and 
specification of which an accused has been convicted 
contrary to a plea of not guilty. 

(3) A concise synopsis of all matters considered in 
aggravation and in extenuation and mitigation. 

(4) All documentary and physical evidence offered 
at the summary court-martial, except that evidence 
which relates solely to an offense of which the accused 
is found not guilty or is dismissed. This evidence shall 
be attached to the report of summary court-martial 
where practicable; copies, photographs, or descriptions 
should be substituted when it is not practicable to 
include the original. 

0151 INITIAL REVIEW AND ACTION 

a. Convening authority 

(1) When action may be taken . The convening 
authority, or other person authorized to act under 
subsection b, may take action only after the applicable 
time periods imder R.C.M. 1105(c), MCM, have 
expired or the accused has waived the right to present 
matters under R.C.M. 1105(d), MCM, whichever is 
earlier. In any case which results in an acquittal on all 
charges and specifications, the convening authority 
shall not take any action approving or disapproving the 
findings of not guilty or any ruling amounting to a 
finding of not guilty; however, a promulgating order is 


1-52 









required in aecordanee with R.C.M. 1114, MCM, and 
section 0155. 

(2) Companion cases tried separately . In court- 
martial cases where the separate trial of a eompanion 
case is ordered, the eonvening authority shall so 
indicate in his action on the record in each case. 

(3) Suspension _of_ sentences . Convening 

authorities are encouraged to suspend, for a 
probationary period, all or any part of a sentence, when 
such action would promote discipline, and when the 
accused's prospects for rehabilitation would more 
likely be enhanced by probation than by the execution 
of all or any part of the sentence adjudged. 

(4) Matters to be considered . The convening 
authority shall follow the provisions of R.C.M. 
1107(b)(3), MCM. 

b. When impracticable for convening authority to act 

(1) For commands in the Navy chain of command, 
if it is impracticable for the person who normally 
would take action as convening authority to do so, that 
person shall cause the record of trial to be forwarded, 
in the absence of specific direction to the contrary by 
an officer authorized to convene general courts-martial 
and superior in the chain of command to the convening 
authority, to the area coordinator or a subordinate 
commander authorized to convene general courts- 
martial and designated by the area coordinator for this 
purpose. For mobile units, the area coordinator or 
designated subordinate commander is the area 
coordinator or designated subordinate commander 
most convenient at the time of forwarding of the 
record. The letter or message which causes the record 
to be so forwarded shall contain a statement of the 
reasons why the normal convening authority could not 
act on the record, and any other matters deemed 
appropriate by the forwarding officer. 

(2) For commands in the chain of command of the 
Commandant of the Marine Corps, unless specifically 
directed to the contrary by an officer exercising 
general court-martial convening authority and superior 
in the chain of command, if, in the discretion of the 
officer who would normally take action as convening 
authority, it is impracticable for him to do so, that 
person shall cause the record of trial to be forwarded to 


an officer exercising general court-martial jurisdiction. 
For summary and special courts-martial, this will 
normally be the officer exercising general court-martial 
jurisdiction who is superior in the chain of command 
unless, in the discretion of the officer who would 
normally take action as convening authority, it will 
also be impracticable for that officer exercising general 
court-martial jurisdiction to take the convening 
authority's action. The letter or message which causes 
the record to be so forwarded shall contain a statement 
of the reasons why the normal convening authority 
could not act on the record, and any other matters 
deemed appropriate by the forwarding officer. 

c. Legal officer/staff judge advocate recommendation . 

In each general Courts-Martial which results in a 
finding of guilty or each special Courts-Martial which 
includes a bad-conduct discharge, the legal officer or 
staff judge advocate of the convening authority shall 
prepare a concise written recommendation to assist the 
convening authority in deciding what action to take on 
the sentence. The matters to be included in the 
recommendation shall be as prescribed in R.C.M. 
1106, MCM and may be submitted in a form similar to 
Appendix A-l-k. An award, for the purpose of 
R.C.M. 1106(d)(3)(C), is defined as one specified in 
the Precedence of Awards Table of the Navy and 
Marine Corps Awards Manual or other issuing 
Service's award regulations, and which is recorded in 
the accused's field service record under the authority of 
service record-keeping regulations. The legal officer 
recommendation may not be signed by an enlisted 
member even if an enlisted member is filling the legal 
officer billet. The staff judge advocate 
recommendation also may not be signed by an 
assistant staff judge advocate unless he or she is 
officially acting for an absent staff judge advocate in 
making that recommendation. If the convening 
authority has a legal officer but no staff judge 
advocate, the convening authority may, as a matter of 
discretion, and absent alternative direction by the 
officer exercising general Courts-Martial jurisdiction 
and superior in the chain of command to the convening 
authority, request the designation of a staff judge 
advocate to prepare the recommendation. 

0152 ACTIONS ON SPECIFIC TYPES OF 
SENTENCE 

a. Summary courts-martial . The convening authority 








may apportion forfeitures of pay adjudged by a 
summary courts-martial under article 20, UCMJ, over 
one month, but as a matter of policy the period of 
apportionment should not exceed three months. 

b. Sentences including reprimand 

(1) General . Reprimands issued in execution of 
courts-martial sentences must be in writing. Except as 
otherwise prescribed in this section, sections 
0114f(3)(a)-(c) apply to punitive letters issued in 
execution of a court-martial sentence. Punitive letters 
issued in execution of court-martial sentences need not 
be designated For Official Use Only. 

(2) By whom issued . The convening authority may 
issue punitive letters in execution of summary courts- 
martial sentences. When a convening authority orders 
a special or general court-martial sentence imposing a 
punitive letter executed, the letter shall be issued as 
part of the action on the record under R.C.M. 
1107(f)(4)(G), MCM. Otherwise, the letter shall be 
issued as part of the promulgating order of the officer 
who subsequently directs execution of the sentence. 

(3) Contents . The punitive letter shall include the 
time and place of trial, type of court, and a statement of 
the charges and specifications of which convicted. It 
shall also contain the following: 

A copy of this letter will be placed in your official 
record in [the Navy Personnel Command] 
[Headquarters, U.S. Marine Corps]. You may 
forward within 15 days after receipt of this action a 
statement concerning this letter for inclusion in 
your record. If you elect not to submit a statement, 
you shall so state officially in writing within the 
time prescribed. In connection with your 
statement, any statement submitted shall be 
couched in temperate language and shall be 
confined to pertinent facts. Opinions shall not be 
expressed nor the motives of others impugned. 
Your statement shall not contain countercharges. 

(4) Procedure for issuance . The original letter shall 
be delivered to the accused and a copy appended to the 
convening authority's action (or the promulgating order 
of the officer subsequently directing execution of the 
sentence). The action (or order) should refer to the 
letter as follows: 


Pursuant to the sentence of the court as approved, a 
punitive letter is this date being served upon the 
accused and a copy is incorporated as part of this 
action. 

(5) Forwarding copy to Department . Upon receipt 
of the accused's written statement or a written 
declaration that he does not desire to make a statement, 
an additional copy, with the statement or declaration, 
shall be forwarded to Commander, Navy Personnel 
Command (PERS-834 for officers and PERS-832 for 
enlisted) or the Commandant of the Marine Corps 
(Code JAM for officers and Code MMRB-20 for 
enlisted), as appropriate. 

(6) Appeals . Review, including appellate review, 
of punitive letters issued as part of an approved court- 
martial sentence will be accomplished as provided for 
by the Unifonn Code of Military Justice, the Manual 
for Courts-Martial, and this Manual. No separate 
appeal from these letters will be considered. 

c. Automatic reduction of enlisted accused . Auto¬ 
matic reduction to the lowest enlisted pay grade under 
article 58a, UCMJ, shall be effected in the naval 
service only in accordance with this subsection, which 
is the regulation prescribed by the Secretary of the 
Navy pursuant to article 58a(a), UCMJ. 

(1) Reduction to the lowest enlisted pay grade will 
be automatically effected only in a case in which the 
sentence, as approved by the convening authority, in¬ 
cludes, whether or not suspended, either: 

(a) A punitive discharge, or 

(b) Confinement in excess of 90 days (if the 
sentence is awarded in days) or three months (if the 
sentence is awarded in other than days). 

(2) In his sole discretion, the convening authority 
may remit the automatic reduction, or may retain the 
accused in the pay grade held at the time of sentence or 
in an intermediate pay grade and suspend the 
automatic reduction to pay grade E-1 that would 
otherwise be effected under article 58a, UCMJ, and 
this subsection, utilizing the forms in Appendix 16, 
MCM, as guides. The automatic reduction may be 
suspended without regard to whether any part of the 
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 
grade E-1 while in confinement but be returned to the 
pay grade held at the time of sentence or an 
intermediate pay grade upon release from confinement. 
Failure of the convening authority to address 
automatic reduction will result in the automatic 
reduction to pay grade E-1 on the date of the 
convening authority's action. 

(3) The following forms may be used as guides for 
suspending automatic reduction without suspending 
any of the approved sentence (except reduction if 
included in the sentence) or reducing the accused to E- 
1 while in confinement and returning the accused to 
the pay grade held at the time of sentence or an 
intermediate pay grade upon release from confinement: 

(a) In the foregoing case of _, the 

sentence is approved [and will be duly executed] but 
[the execution of so much thereof as provides for 

reduction to pay grade_and] automatic reduction 

to pay grade E-1 is suspended until_, at 

which time, unless the suspension is sooner vacated, 
the suspended portions will be remitted without further 
action. The accused will [continue to] serve in pay 

grade_unless the suspension of the [reduction to 

pay grade_and] automatic reduction is vacated, in 

which event the accused at that time will be reduced to 
the pay grade of E-1. 

(b) In the foregoing case of _, the 

sentence is approved [and will be duly executed]. The 
accused will serve in pay grade E-1 from this date until 
released from confinement at which time he will be 
returned to pay grade_. 

d. Sentences extending to dismissal . Pursuant to the 
authority of article 71(b), UCMJ, the Under Secretary 
of the Navy and the Assistant Secretaries of the Navy 
have been designated by the Secretary as empowered 
to approve that part of a sentence providing for 
dismissal of an officer or a midshipman, and may com¬ 
mute, remit, or suspend the sentence, or any part of the 
sentence, as they see fit. 


0153 DISPOSITION OF RECORDS FOL¬ 
LOWING CONVENING AUTHORITY 
ACTION 

a. Summary courts-martial and special courts-martial 

not involving a bad-conduct discharge 

(1) Review by a judge advocate . Records of trial 
requiring review under R.C.M. 1112, MCM, shall be 
forwarded to the staff judge advocate of the officer 
exercising general court-martial jurisdiction designated 
in subsection (2). The staff judge advocate may 
review the record pursuant to R.C.M. 1112, MCM, or 
may cause another judge advocate to perform such 
review. Upon completion of the review, records 
requiring action under article 64(b), UCMJ, and 
R.C.M. 1112(e)(1) or (3), MCM, shall be forwarded to 
the authority designated in subsection 0154b. 

(2) Designation of the authority who may take 
action under Article 64(b) 

(a) For commands in a Navy chain of command, 
the authority who may take action pursuant to article 
64(b), UCMJ, shall be, in the absence of specific 
direction to the contrary by an officer authorized to 
convene general courts-martial and superior in the 
chain of command to the convening authority, the area 
coordinator or a subordinate commander authorized to 
convene general courts-martial and designated for this 
purpose, and who could have exercised general court- 
martial jurisdiction over the accused at the time the 
court-martial was held. 

(b) For commands in the chain of command of 
the Commandant of the Marine Corps, the authority 
who may take action pursuant to Article 64(b), UCMJ, 
shall be the officer exercising general court-martial 
jurisdiction over the accused at the time the court- 
martial was held. 

(3) Identification of judge advocate to whom 
record is forwarded for review . In all cases, the action 
of the convening authority in forwarding the record for 


1-55 

















judge advocate review shall identify the judge 
advocate to whom the record is forwarded by stating 
the official title, such as "The record of trial is 
forwarded to the Staff Judge Advocate, Commander, 
Naval Base, Norfolk, for review under article 64(a), 
UCMJ." 

b. General courts-martial and special courts-martial 

which include an unsuspended or suspended bad- 

conduct discharge 

(1) Forwarding 

(a) General courts-martial . Upon completion of 
the convening authority's action, the record of trial 
which should include a review of a case under R.C.M. 
1112, MCM, in any case in which the accused has 
waived appellate review under R.C.M. 1110, MCM, 
shall be sent directly to the Navy-Marine Corps 
Appellate Review Activity (Code 40.31), 716 Sicard 
Street, SE, Suite 1000, Washington Navy Yard, DC 
20374-5047. 

(b) Special courts-martial . Upon completion of 
the convening authority's action, if the approved 
sentence includes a bad-conduct discharge, suspended 
or unsuspended, and the accused has not waived 
appellate review under R.C.M. 1110, MCM, the record 
of trial shall be forwarded as prescribed in subsection 
b(l)(a). If the accused has waived appellate review, 
the record of trial shall be forwarded as prescribed in 
subsection a(l). 

(c) Records with "NMCM" numbers assigned . 
Any case which has been assigned an "NMCM" num¬ 
ber shall be forwarded as prescribed in subsection 
b(l)(a) regardless of the final disposition of the case. 

(2) Copy to the Naval Clemency and Parole 
Board . If the sentence, as approved by the convening 
authority, includes an unsuspended punitive discharge, 
dismissal, or confinement for 12 months or more, one 
of the copies of the record of trial prepared in 
accordance with R.C.M. 1103(g)(1), MCM, shall be 
forwarded to the Director, Naval Council of Personnel 
Boards, Attn: Naval Clemency and Parole Board, 720 
Kennon Street, SE, Rm 309, Washington Navy Yard, 
DC 20374-5023. 


COURT-MARTIAL RECORDS 

a. .lAG supervision . Records of all trials by courts- 
martial in the naval service are under the supervision 
of the Judge Advocate General of the Navy. 


b. Filing of courts-martial records 

(1) General courts-martial . All records of trial by 
general court-martial shall, after completion of final 
action, be filed in the Office of the Judge Advocate 
General. 

(2) Special courts-martial . Records of trial by 
special court-martial that involve an officer accused or 
that include a suspended or unsuspended bad-conduct 
discharge, or that have been returned for further action, 
shall, after completion of final action, be filed in the 
Office of the Judge Advocate General. All other 
special court-martial records shall be filed in the 
manner provided below for summary courts-martial. 

(3) Summary courts-martial 

(a) Shore activities where records of trial have 
been reviewed under article 64, UCMJ, and section 
0153a shall retain original records of proceedings for a 
period of two years after final action. At the 
termination of such retention period, the original 
records of proceedings shall be transferred to the 
National Persoimel Records Center (Military Personnel 
Records), General Services Administration, 9700 Page 
Boulevard, St. Louis, MO 63132-5100. 

(b) Fleet activities, including Fleet Air Wings 
and Fleet Marine Forces, where records of trial have 
been reviewed imder article 64, UCMJ, and section 
0153a shall retain original records of proceedings for a 
period of three months after final action. At the 
termination of such retention period, the original 
records of proceedings shall be transferred to the Na¬ 
tional Personnel Records Center (Military Personnel 
Records), General Services Administration, 9700 Page 
Boulevard, St. Louis, MO 63132-5100. 

c. Records containing classified information . The 
original of any record of trial that contains classified 
information shall be forwarded to Navy-Marine Corps 


0154 FILING AND SUPERVISION OF 


1-56 
















Appellate Review Aetivity (Code 40.31), 716 Sieard 
Street, SE, Suite 1000, Washington Navy Yard, DC 
20374-5047, for fding and availability for inspection 
under section 0166. 


0155 PROMULGATING ORDERS- 

GENERAL AND SPECIAL COURTS- 
MARTIAL 

a. When promulgating orders required . Any action 
taken on the proceedings, findings, or sentence of a 
general or special court-martial by the convening au¬ 
thority or any other party empowered to take such 
action shall be promulgated as prescribed in R.C.M. 
1114, MCM. The promulgating order and convening 
authority's action may be contained within the same 
document, when personally signed by the convening 
authority. Separate orders shall be issued for each 
accused in the case of a joint or common trial. In cases 
which result in an acquittal on all charges and specifi¬ 
cations, a promulgating order is required in accordance 
with R.C.M. 1114(c)(3), MCM, which will indicate 
that the case resulted in an acquittal, and will include 
the charges and specifications, findings, and 
appropriate signatures. 

b. When supplementary order is not required . Where 
the findings and sentence set forth in the initial 
promulgating order are affirmed without modification 
upon subsequent review of the case, no supplementary 
promulgating order is required except as necessary to 
order the execution of the sentence or to designate a 
place of confinement. 

c. Supplementary orders in U.S. Navy-Marine Corps 

Court of Criminal Appeals (NMCCA) cases . If the 
sentence was ordered executed or suspended in its 
entirety by the convening or other authority, and the 
approved findings and sentence have been affirmed 
without modification by the NMCCA and, in 
appropriate cases, the U.S. Court of Criminal Appeals 
for the Armed Forces or the U.S. Supreme Court, no 
supplementary court-martial order is necessary. A 
supplementary court-martial order shall be issued in all 
other cases. Such orders shall be published as follows: 


(1) Supplementary orders in cases involving death 
sentences and dismissals are issued by the Judge 
Advocate General by direction of the Secretary of the 
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), 
orders should be issued immediately following the 
accused's execution of a "Request for Immediate 
Execution of Discharge" (See section 0165) or upon 
expiration of 60 days from the date of service of the 
NMCCA decision upon the accused. In cases con¬ 
sidered by the U.S. Court of Criminal Appeals for the 
Armed Forces or the U.S. Supreme Court, sup¬ 
plementary orders should be issued upon notification 
of completion of review by the court. 

(3) All supplementary orders in NMCCA cases 
shall bear the "NMCM" number appearing on the 
NMCCA decision. 

d. Form . The form of a promulgating order is 
prescribed in Appendix 17, MCM. In copying and 
including the action of the convening authority in the 
promulgating order, any synopsis of the accused's 
record and/or circumstances of the offense contained 
in the convening authority's action pursuant to section 
0151a(4) and/or section 0152b shall also be copied and 
included in the promulgating order. The order shall be 
subscribed by the officer issuing the order or by a 
subordinate officer designated by him. In either case, 
the name, grade, and title of the subscribing officer, 
including the organization or unit, shall be given. 
Where a subordinate officer signs by direction, his 
name, title, and organization shall be followed by the 
words: By direction of (name, grade, title, and organi¬ 
zation of issuing officer). A duplicate original of a 
promulgating order is a carbon copy as complete as the 
original in all respects, including the signature of the 
officer who signed the original, or an identical copy 
made by photographic or other duplicating process. A 
certified copy of a promulgating order is a copy 
bearing the statement "Certified to be a true copy" over 
the signature, grade, and title of an officer, or of an 
enlisted person in the legalman rating (Navy), or in the 
legal occupational field (Marine Corps), of grade E-6 
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 
and shall be distributed as follows: 

(1) Original to be attached to original record of 
trial. If the original record of trial has been forwarded, 
the original order, along with the appropriate copies as 
described below, shall be sent to the command or 
activity to which the original record of trial was 
forwarded. 

(2) Duplicate original to be placed in the service 
record of the accused, unless the court-martial 
proceedings resulted in acquittal of all charges, 
disapproval of all findings of guilty, or disapproval of 
the sentence by the convening authority when no 
findings have been expressly approved by him. In 
cases involving Navy personnel, if applicable, forward 
to the Personnel Support Activity Detachment 
maintaining the accused's service record. 

(3) Duplicate originals or certified copies: 

(a) One to be attached to the original record of 

trial. 

(b) One to be attached to each copy of the record 
of trial. 

(c) Two to the commanding officer of the 
accused if a brig or confinement facility is designated 
as the place of confinement; three if a disciplinary 
command is designated as the place of confinement. 
These copies should accompany the records of the 
accused to the place of confinement. 

(d) One to Commander, Navy Personnel 
Command (PERS 834) in the case of officers, or PERS 
832 in the case of enlisted). 

(e) One to the officer exercising general court- 
martial jurisdiction (OEGCMJ) over the accused at the 
time of trial, and one to the current OEGCMJ over the 
accused (if different). The OEGCMJ shall be 
identified by the command name. 

(f) In Navy cases, one to the type commander of 
the accused at the time of trial, if 

appropriate. The type commander shall be identified 


(4) Duplicate originals, certified copies, or plain 
copies: 

(a) One to the accused. 

(b) One to the commanding officer of the naval 
legal service office at which the accused was tried. 

(c) One each to the military judge, trial counsel, 
and defense counsel of the court-martial before which 
the case was tried. 

(d) One to the convening authority and, if the 
accused was serving in a command other than that of 
the convening authority at the time of the alleged 
offense, one to the command in which he was then 
serving. 

(e) One to each appropriate subordinate unit and 
any other local distribution desired. 

f Navy officer accused . In addition to the dis¬ 
tribution requirements of subsection e, ensure the 
following distribution is made when the accused is a 
Navy officer: 

(1) Copy to Officer in Charge, Personnel Support 
Activity Detachment, Naval Training Center Great 
Lakes, 315B Bronson Ave, Suite 207, Great Lakes, IE 
60088 if U.S. Disciplinary Barracks, Fort 
Leavenworth, KS is designated as the place of 
confinement. 

(2) Copy to Defense Finance and Accounting 
Service/Cleveland Center (DFAS/CL), Special Claims 
Department (Code FMASB), 1240 E. 9th Street, 
Cleveland, OH 44199 if the sentence includes 
forfeiture of pay which has been approved by the 
convening authority. Copies of all supplementary 
orders promulgating the results of subsequent action 
taken on that portion of the sentence extending to 
forfeiture must include DFAS/CL (Code FMASB) as a 
distributee. Copies of all Courts-Martial orders 
extending to forfeiture of pay should be submitted 
through the convening authority's disbursing officer 
for forwarding to DFAS/CL with other non-scan 
documents. See also Art. 1611-010 MILPERSMAN, 
para. 70505 PAYPERSMAN. 


1-58 




0156 PROMULGATING ORDERS- 

SUMMARY COURTS-MARTIAL 

In accordance with R.C.M. 1114(a)(3), MCM, the 
results of a trial by summary court-martial need be 
promulgated only to the accused. The results of any 
review or action on a summary court-martial under 
section 0153, after the initial action of the convening 
authority, shall be forwarded to the eonvening 
authority and to the commanding officer of the accused 
for notation in the serviee record or service record 
book of the aeeused. 

0157 SERVICE AND EXECUTION OE 
SENTENCES 

a. General . Any part of a court-martial sentence 
exeept death, dismissal, or a dishonorable or bad- 
conduct discharge may be ordered executed by the 
convening authority or other person acting on the ease 
when initial action is taken under R.C.M. 1107, MCM, 
and sections 0151 and 0152. If the accused waives 
appellate review or has withdrawn the appeal, the 
offieer taking action under R.C.M. 1112(f), MCM, and 
section 0153a(2) may order a dishonorable or a bad- 
conduct discharge executed as part of the action 
approving the sentence. In cases reviewed by the 
NMCCA, the officer exercising general court-martial 
jurisdiction over the aeeused may order a dishonorable 
or a bad-conduet discharge executed only after appel¬ 
late review is completed and the judgment is final 
within the meaning of R.C.M. 1209, MCM. 

Dismissal of a commissioned officer or a midshipman 
may only be ordered executed by the Secretary of the 
Navy or his designate. See section 0152d. Only the 
President may order the punishment of death to be 
executed. 

b. Plaee and nature of confinement 

(1) Designation of places of confinement . The 
convening authority or other person taking the initial 
action on a court-martial which sentenced an accused 
to confinement is a competent authority to designate 
the place of confinement of naval prisoners. See 
section 0169 series. 

(2) Nature of confinement . See SECNAVINST 
1640.9 series. 


c. Punitive diseharge-Naval Clemency and Parole 

Board action 

(1) In general . Notwithstanding the fact that a 
sentence may have been duly ordered executed, a 
punitive diseharge may not in fact be executed until the 
provisions of SECNAVINST 5815.3 series have been 
complied with. 

(2) Required documents . A eomplete copy of the 
record of trial, including the promulgating order and 
the legal officer's or staff judge advocate's recommen¬ 
dation, shall be forwarded in those cases in which the 
approved sentence includes an unsuspended punitive 
diseharge, dismissal, or eonfinement for 12 months or 
more. See section 01.53h(2). 

d. Execution of death penalty . The manner in whieh 
a sentence to death is to be earried out shall be 
determined by the Secretary of the Navy. 

e. Hard labor without confinement . R.C.M. 
1003(b)(6), MCM, authorizes special and general 
courts-martial to sentence enlisted members to hard 
labor without eonfinement for up to three months. The 
immediate commander of an accused designates the 
amount and eharaeter of the hard labor to be 
performed, which should conform to the guidelines 
governing extra duties imposed as punishment under 
article 15, UCMJ. See paragraph 5e(6) of Part V, 
MCM. 

0158 REMISSION AND SUSPENSION 

a. Authority to remit or suspend sentences in general 

courts-martial, and special courts-martial in whieh the 

sentence includes a bad-eonduct discharge . Pursuant 
to article 74(a), UCMJ, and subject to the limitations in 
section 0159a, the Under Secretary of the Navy, the 
Assistant Seeretaries of the Navy, the Judge Advocate 
General, and all offieers exercising general coiuf- 
martial jurisdietion over the command to which the 
accused is attached are designated as empowered to 
remit or suspend any part or amormt of the unexecuted 
portion of any sentence, including all uncollected 
forfeitures, other than a sentence approved by the 
President. A sentence to death may not be suspended. 

b. Authority to remit or suspend sentences in 


1-59 
















summary courts-martial, and special courts-martial in 

which the sentence does not include a bad-conduct 

discharge . Notwithstanding the limitations in section 
0159a, if the accused's commander has authority to 
convene a court-martial of the kind which adjudged the 
sentence, that commander may suspend or remit any 
part of the unexecuted part of any sentence by 
summary court-martial or of any sentence by special 
court-martial which does not include a bad-conduct 
discharge. R.C.M. 1108(b), MCM. 

c. Probationary period . Suspensions shall conform to 
the conditions, limitations, and termination 
requirements of R.C.M. 1108(c)-1108(e), MCM. See 
also R.C.M. 1109(b)(4), MCM, which governs 
interruptions of a period of suspension due to 
unauthorized absence of the probationer or the 
commencement of proceedings to vacate suspension. 
For instructions concerning voluntary extension of 
enlistment for the purpose of serving probation, see 
SECNAVINST 5815.3 series. 

d. Liaison with Naval Clemency and Parole Board . 

Officers taking clemency action pursuant to the 
authority of this section on any sentence including a 
punitive discharge or confinement for 12 months or 
more shall coordinate such action with the Naval 
Clemency and Parole Board under the provisions of 
SECNAVINST 5815.3 (series). This obligation to 
coordinate does not limit the authority any officer 
otherwise has to take clemency action. 

0159 LIMITATIONS ON AUTHORITY TO 
REMIT AND SUSPEND SENTENCES 

a. Cases involving national security . No official of 
the DON, other than the Secretary of the Navy, may 
remit or suspend, pursuant to article 74(a), UCMJ, and 
R.C.M. 1107, MCM, any part or amount of the 
approved sentence in any case designated as a national 
security case in accordance with section 0126. 

b. Flag and general officers . Notwithstanding 
subsection 0158a, the Judge Advocate General may 
not remit or suspend, pursuant to article 74(a), UCMJ, 
any part or amount of the sentence in any case 
involving a flag or general officer. 

c. Officers and warrant officers . Notwithstanding 
subsection 0158a, officers exercising general court- 


martial jurisdiction may not remit or suspend, pursuant 
to article 74(a), UCMJ, any part or amount of the 
sentence in any case involving an officer or warrant 
officer. 

d. Authority of the Commanding Officer. Naval 
Station Norfolk, VA, and the Commanding Officer, 

Marine Detachment, U.S. Disciplinary Barracks, Fort 

Leavenworth, KS . The Commanding Officer, Naval 
Station, Norfolk, VA, and the Commanding Officer, 
Marine Detachment, U.S. Disciplinary Barracks, Fort 
Leavenworth, KS (or its successor command), may: 

(1) effect actions directed by the Secretary 
following clemency review; 

(2) remit uncollected forfeitures of court-martial 
prisoners returning to duty; 

(3) remit confinement, not in excess of 5 days, to 
facilitate administration, by adjusting dates of transfer 
upon completion of confinement. Early releases in 
excess of 5 days may be granted when specifically 
authorized by the Chief of Naval Personnel for Navy 
prisoners, or the Commandant of the Marine Corps for 
Marine Corps prisoners; and 

(4) Exercise other authority specifically delegated 
in writing by the Secretary. 

0160 VACATION OF SUSPENSION OF 
SENTENCE 

a. Review of confinement of probationer pending 

vacation proceedings . The officers appointed under 
section 0127d shall also conduct reviews of 
confinement under R.C.M. 1109(c)(4), MCM. 

b. Notice of proceedings . In the case of courts- 
martial under review, immediate notice of the vacation 
of any punishment shall be made to the command or 
activity conducting the review. In the case of courts- 
martial in which the approved sentence includes a 
punitive discharge, dismissal, death, or confinement of 
1 year or more, and appellate review has not been 
waived, notice shall be made to both the Navy-Marine 
Corps Appellate Review Activity (Office of the Judge 
Advocate General (Code 40)) and the NMCCA. 

c. Filing of report of proceedings . The original 
record of any proceedings in connection with vacation 


1-60 


















of suspension under R.C.M. 1109, MCM, shall be 
ineluded in the reeord of trial. See R.C.M. 
1103(b)(3)(M). If the authority ordering the vacation 
is not in possession of the record of trial, that authority 
shall transmit the record of the vacation proceedings to 
the command or activity to which the original record of 
trial was forwarded for inclusion in the record of trial. 
In the case of vacation of a suspended general court- 
martial sentence or of a suspended special court- 
martial sentence including a bad-conduct discharge, 
two copies of the record of any vacation proceedings 
shall be forwarded with the original of such vacation 
proceedings. 

d. Execution of vacated punishments . The execution 
of a vacated punishment is subject to the restrictions of 
section 0157 and R.C.M. 1113(c), MCM. 

0161 REQUEST EOR WITHDRAWAL OF 
APPELLATE REVIEW 

a. Article 66 cases . A request for withdrawal from 
appellate review of a case forwarded for review under 
article 66, UCMJ, will ordinarily be granted by 
NMCCA if the case is pending before the NMCCA. 
Requests, including a copy of the charge sheet, shall be 
forwarded to Navy-Marine Corps Appellate Review 
Activity, (Code 40.31), 716 Sicard Street, SE, Suite 
1000, Washington Navy Yard DC 20374-5047. 

b. Article 69(a) cases . A request for withdrawal 
from appellate review of a case forwarded for 
examination under article 69(a), UCMJ, will ordinarily 
be granted, unless the examination in the Office of the 
Judge Advocate General has reached the point where it 
would be impracticable to return the case to the field 
for review under article 64, UCMJ, and R.C.M. 1112, 
MCM. Requests, including a copy of the charge sheet, 
shall be forwarded to Navy-Marine Corps Appellate 
Review Activity, (Code 40.31), 716 Sicard Street, SE, 
Suite 1000, Washington Navy Yard, DC 20374- 5047. 

0162 APPLICATION FOR RELIEF- 
ARTICLE 69(b) 

a. General . Article 69(b), UCMJ, provides that "The 
findings or sentence, or both, in a court-martial case 
not reviewed under subsection (a) or under section 866 
of this title (article 66) may be modified or set aside, in 
whole or in part, by the Judge Advocate General on the 
ground of newly discovered evidence, fraud on the 


court, lack of jurisdiction over the accused or the 
offense, error prejudicial to the substantial rights of the 
accused, or the appropriateness of the sentence." An 
application by the accused for such a review must be 
filed in the Office of the Judge Advocate General 
within 2 years of the convening authority's action on 
the sentence, unless the accused establishes good cause 
for failure to file within that time. 

b. Time limitations . In order to be considered by the 
Judge Advocate General, an application for relief must 
be placed in military channels if the applicant is on 
active duty, or be deposited in the mail if the applicant 
is no longer on active duty, on or before the last day of 
the 2-year period beginning on the date the sentence is 
approved by the convening authority. An application 
not filed in compliance with these time limits may be 
considered if the Judge Advocate General determines, 
in his sole discretion, that "good cause" for failure to 
file within the time limits has been established by the 
applicant. 

c. Submission procedures . Applications for relief 
may be submitted to the Judge Advocate General by 
letter. If the accused is on active duty, the application 
shall be submitted via the applicant's commanding 
officer, the command that convened the court, and the 
command that reviewed the case under article 64(a) or 
(b), UCMJ. If the original record of trial is held by the 
command that reviewed the case under article 64(a) or 
(b), UCMJ, it shall be forwarded as an enclosure to the 
endorsement. If the original record of trial has been 
filed in the National Personnel Records Center (see 
section 0154b), the endorsement will include all 
necessary retrieval data (accession number, box 
number, and shelf location) obtained from the receipt 
returned from the National Personnel Records Center 
to the sending activity. This endorsement shall also 
include infonnation and specific comment on the 
grounds for relief asserted in the application, and an 
opinion on the merits of the application. If the 
applicant is no longer on active duty, the application 
may be submitted directly to the Judge Advocate 
General. 

d. Contents of application . All applications for relief 
shall contain: 

(1) full name of the applicant; 


1-61 









and 


(2) social security number and branch of service, if 
any; 

(3) present grade if on active duty or retired, or 
"civilian" or "deceased," as applicable; 

(4) address at time the application is forwarded; 

(5) date of trial; 

(6) place of trial; 

(7) command title of the organization at which the 
court-martial was convened (convening authority); 

(8) command title of the officer exercising article 
64 review authority over the applicant at the time of 
trial (if applicable); 

(9) type of court-martial which convicted the ap¬ 
plicant, and sentence adjudged; 

(10) general grounds for relief, which must be one 
or more of the following: 

(a) newly discovered evidence; 

(b) fraud on the court; 

(c) lack of jurisdiction over the accused or the 
offense; 

(d) error prejudicial to the substantial rights of 
the accused; 

(e) appropriateness of the sentence. 

(11) an elaboration of the specific prejudice result¬ 
ing from any error cited. Legal authorities to support 
the applicant's contentions may be included, and the 
format used may take the form of a legal brief if the 
applicant so desires; 

(12) any other matter which the applicant desires to 
submit; 

(13) relief requested; 

(14) facts and circumstances to establish "good 
cause" for a failure to file the application within the 
time limits prescribed in subsection b, if applicable; 


(15) if the application is signed by a person other 
than the applicant pursuant to subsection e, an 
explanation of the circumstances rendering the 
applicant incapable of making application. 

(16) the applicant's copy of the record of trial will 
not be forwarded with the application for relief, unless 
specifically requested by the Judge Advocate General. 

e. Signatures on application . Unless incapable of 
making application, the applicant shall personally sign 
the application under oath before an official authorized 
to administer oaths. If the applicant is incapable of 
making application, the application may be signed 
under oath and submitted by the applicant's spouse, 
next of kin, executor, guardian, or other person with a 
proper interest in the matter. In this regard, one is 
considered incapable of making application for 
purposes of this section when unable to sign the 
application rmder oath due to physical or mental 
incapacity. 

0163 PETITION FOR NEW TRIAL- 
ARTICLE 73 

Petitions for a new trial under article 73, UCMJ, shall 
comply with the form and procedures set forth in 
R.C.M. 1210, MCM, and shall be sent directly to the 
Navy-Marine Corps Appellate Review Activity (Code 
40), 716 Sicard Street, SE, Suite 1000, Washington 
Navy Yard, DC 20374-5047. 

0164 NOTIFICATION TO ACCUSED OF 
COURT OF CRIMINAL APPEALS 
DECISION 

a. Current address of the accused. Upon receipt of 
the decision of the NMCCA, and when in accordance 
with the provisions of R.C.M. 1203(d)(1), MCM, the 
Judge Advocate General elects not to certify the case 
to the U.S. Court of Appeals for the Armed Forces, the 
Office of the Judge Advocate General will use the 
address provided by the accused if the accused is on 
appellate leave, or, if the accused has not provided an 
address and is on appellate leave or is on active duty, 
will request from the officer exercising general Courts- 
Martial jurisdiction over the command to which the 
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 
the accused if the accused is on active duty, or the 
latest address listed for the accused in the accused's 
official service record or service record book. If 
requested, the address shall be provided to the Office 
of the Judge Advocate General by the most expeditous 
means. 

b. Promulgation package . Using the address 
obtained as detailed above, a "promulgation package" 
consisting of the accused's copy of the NMCCA 
decision containing the endorsement notifying the 
accused of his right to petition for review by the U.S. 
Court of Criminal Appeals for the Armed Forces, and a 
form petition with instructions, will be forwarded 
directly to the accused by first-class certified mail. If 
the accused is in a military confinement facility, the 
package will be forwarded to the commanding officer 
or officer in charge of the confinement facility for 
delivery to the accused. The commanding offi¬ 
cer/officer in charge of such facility should ensure that 
the certificate of personal service is completed and 
returned to the Office of the Judge Advocate 
General. 

c. Copies of decision . Copies of the NMCCA 
decision will be forwarded to the officer exercising 
general court-martial jurisdiction over the accused. 
Additionally, copies of the NMCCA decision will be 
forwarded to the original general court-martial 
convening authority and the convening authority, as 
applicable, for infonnation and appropriate 
distribution, as a matter of courtesy, to the military 
judge, trial counsel, and defense counsel. 

d. Change in address . Notice of any change in 
address of the accused due to transfer, appellate leave, 
or any reason shall be immediately given to the Judge 
Advocate General. 

e. Completion of appellate review. Notification of 
the completion of appellate review, i.e., expiration of 
the 60-day appeal period if no petition for review is 
filed, or final review by the U.S. Court of Appeals for 
the Armed Forces or the U.S. Supreme Court, will be 
forwarded by the Office of the Judge Advocate 
General to the cognizant general Courts-Martial 
convening authority for compliance with sections 0157 
and 0165, if applicable. 


0165 REQUEST FOR IMMEDIATE 
EXECUTION OF DISCHARGE 

a. General . Prior to completion of appellate review, 
an accused may request immediate execution of the 
unexecuted portion of his sentence, following 
completion of the confinement portion thereof, if any, 
in those cases in which the sentence as affirmed by the 
NMCCA: 

(1) includes an unsuspended punitive discharge; 
and 

(2) either does not include confinement, or the 
confinement portion thereof has been or will be 
completed prior to 60 days from the date the accused is 
served with a copy of the NMCCA decision. 

b. Conditions of approval . Such requests may be 
approved by the officer exercising general 
court-martial jurisdiction subject to the following 
conditions: 

(1) that the accused has received a copy of the 
decision of the NMCCA in his case; 

(2) that the accused has had fully explained to him 
the right to petition the U.S. Court of Appeals for the 
Armed Forces for grant of review; 

(3) that the accused does not have an appeal 
pending before the U.S. Court of Appeals for the 
Armed Forces; 

(4) that the accused does not intend to appeal to the 
U.S. Court of Appeals for the Armed Forces but, 
nevertheless, understands that the request for 
immediate release does not affect the right seasonably 
to petition the U.S. Court of Appeals for the Anned 
Forces; 

(5) that the accused has consulted counsel of his 
own choice; and 

(6) that Naval Clemency and Parole Board review, 
under the provisions of SECNAVINST 5815.3H, if 
applicable, has been completed. 

c. Execution of unexecuted portion of sentence . 


1-63 









Upon approval of such requests, the officer exercising 
general eourt-martial jurisdiction shall order the 
unexecuted portion of the sentence to be duly 
executed. 

d. Form of request for immediate execution of 
discharge . The prescribed form is set forth in 
Appendix A-1-1. 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 eourts-martial where classified infonnation has 
been deleted or withdrawn from the accused's eopy of 
the record of trial, the accused may personally inspect 
the original reeord of trial in the Office of the Judge 
Advocate General after final review in the ease has 
been completed, subject to the requirements of 
SECNAVINST 5510.36 (series). Applieations 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 detenninations . 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 


subsection a. "Competent authority," as used herein, 
shall be the commanding officer of such persons and 
the administrative determination shall be made through 
an investigation pursuant to the JAG Manual and 
approved on review by a general court-martial 
authority. 


1-64 






c. Army and Air Force property . When the money or 
property involved belongs to the Anny or the Air 
Force, and such service detennines 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 persormel, 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 

AGENTS OF THE NAVAL CRIMINAL 
INVESTIGATIVE SERVICE 

Pursuant to the provisions of R.C.M. 302(b)(1), MCM, 
and under the authority of article 7(b), UCMJ, any 
civilian agent of the Naval Criminal Investigative 
Service who is duly accredited by the Director, Naval 
Criminal Investigative Service, and who is engaged in 
conducting an investigation, with or without prior 
approval or a request from a competent command, 
within the investigative jurisdietion of the Naval 
Criminal Investigative Service as established in 
departmental directives, may apprehend, if necessary, 
persons subject to the UCMJ or to trial therermder, 
upon reasonable belief that an offense has been 
committed and that the person apprehended committed 
it. A person so apprehended must be taken promptly 
before his commanding officer or other appropriate 
military authority. Such a civilian agent may 
apprehend a commissioned officer or a warrant officer 
only pursuant to specific orders of a commissioned 
officer except where such an apprehension is necessary 


to prevent disgrace to the service, the commission of a 
serious offense, or the escape of one who has 
committed a serious offense. Such a civilian agent, 
even though not conducting an investigation relating to 
the person apprehended, may also apprehend a person 
subject to the UCMJ upon observation of the 
commission of a felony or a misdemeanor amounting 
to a breach of the peace occurring in the agent's 
presence. A person so apprehended must be delivered 
promptly to his commanding officer or other 
appropriate military authority. 

0169 AUTHORITY TO PRESCRIBE 

REGULATIONS RELATING TO THE 
DESIGNATION AND CHANGING OF 
PLACES OF CONFINEMENT 

The Chief of Naval Personnel and the Commandant of 
the Marine Corps are authorized to issue joint 
regulations as required relating to the designation and 
the changing of places of confinement of naval 
prisoners, the transfer of naval prisoners among 
military confinement facilities, and transfers from 


1-65 




military facilities, to civilian confinement facilities. 
See BUPERSINST 1640.17 series and MCO 1640.3. 

0170 FORMS SUPPLEMENTING THE 
MILITARY RULES OF EVIDENCE 

a. Interrogations . See M.R.E. 301-305. Appendix 
A-l-m contains a suggested format which may be 
utilized by investigative personnel in cases in whieh 
criminal suspects desire to waive their rights 
concerning self-incrimination, and to make statements. 
This format is designed as a guide and its use is not 
mandatory. 

b. Search and seizure . See M.R.E. 311-316. Ap¬ 
pendices A-l-n and A-l-o contain suggested formats 
for recording information pertaining to authorization 
for searches (with instmctions), and the granting of 
consent to search. These formats are designed as 
guides in processing problems which may arise in 
connection with cases involving searches and seizures. 
Use of these formats, even as guides, is not man¬ 
datory, but rests within the discretion of local 
commanders. 

0171 RECOUPMENT OF ADVANCED 
EDUCATION ASSISTANCE 

a. Authority . Section 2005 of title 10, U.S. Code, 
authorizes the Secretary of the Navy to require a 
servicemember to enter a written agreement to serve 
on active duty for a speeified period as a condition of 
that servicemember receiving advanced education 
financial assistance from the Government. If the 
servicemember fails to complete, voluntarily or as a 
result of misconduct, the term of active duty service 
specified in the agreement, the Seeretary of the Navy 
can require that servieemember to reimburse the 
United States for the cost of advanced education 
assistance not repaid by active duty service as specified 
in the written agreement. Seetion 2005 of title 10, U.S. 
Code, also requires that a recipient of advaneed 
education assistance be advised of the recoupment 
possibility before the recipient submits a request for 
voluntary separation or makes a personal decision 
regarding administrative, nonjudicial, or judicial action 
resulting from alleged misconduct. Accordingly, a 
servicemember having obligated service arising from 
reeeiving advanced education assistance must be 
advised prior to electing to accept nonjudicial 
punishment or summary Courts-Martial, requesting 


voluntary separation, waiving an administrative 
diseharge board, or entering a guilty plea at Courts- 
Martial (in aeeordance with a pretrial agreement or 
otherwise) that he may be required to reimburse the 
United States for the cost of advanced education 
assistance not repaid by active serviee as speeified in 
the written agreement entered into with the 
Government prior to aecepting advanced education 
assistance. See Appendix A-l-r(l). Reeoupment 
applies to those individuals who have received, at 
Government expense, education or training above the 
secondary level. Applicable programs may include, 
but are not limited to, the United States service 
academies, Reserve Officer Training Corps, the 
Funded Law Education Program, the Armed Forces 
Health Professions Scholarship Program, other post¬ 
graduate programs, and enlisted educational programs 
such as the Enlisted Education Advancement Program. 


b. No additional rights . This requirement is not 
intended to confer rights on an individual but to 
preserve for the Government the possibility of 
recoupment. Failure to advise a member of the 
possibility of recoupment, as discussed in 
subparagraph a above, before the member submits a 
request for retirement or makes a personal decision 
regarding administrative, nonjudicial, or judicial action 
shall not create any cause for relief against an 
otherwise valid nonjudicial, judicial, or administrative 
proceeding, but may prevent recoupment. 

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


The following section provides a cross-reference of 
those provisions contained in the MCM,and the 
sections in this Chapter or other instructions which 
implement those provisions. 


R.C.M. 

104(b)(2)(B) 

106 

108 

109 

201(d)(2) 

201(f)(2)(C)(iii) 

204(a) 


Implementation 
JAGINST 5803.1 
Chapter VI 
JAGINST 5810.2 
JAGINST 5803.1 
0108b, 0124 
0122a 

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) 

0120e, 0121b 

503(b) 

0130a(l) 

1305(a) 

0150 

503(c) 

0130b 

1305(e)(3) 

0153 

504(b)(l)and(2) 

0120,0121 

1306(c) 

0153a 

504(d)(3) 

0133 



505(c)(l)(B)(i) 

0136 

Mil. R. Evid. 


506(b)(l)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 

lf(5) 

0108b 

910(a)(2) 

No implementation 

2a, b, and c 

0106 

910(g)(1) 

0135 

3 

0108e 

1001(b)(2) 

0141 

5a 

0111,0112 

1103(b)(1)(B) 

0150b 

5c(l) 

0114 

1103(g)(1) 

0153b(2) 

5c(4) and (5) 

0111,0112 

1103® 

No implementation 

5c(6) 

No implementation 

1104(a)(2)(A) 

0150a 

5g 

0113 

1104(b)(1)(D) 


7b 

0117 

(iii)(a) 

0166 

7f(5) 

0117d 

1107(a) 

0151b 

8 

0119,0141 

1107(b)(2) 

0151a(l) 



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)(l)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 infonnation.) 

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-l-b(l) 








(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-l-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 OE 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 aecordance with the requirements of paragraph 4 of Part V, MCM, 1984, you are hereby notified that the 
commanding officer is eonsidering imposing nonjudieial 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 aceept nonjudieial punishment is: 


4. If you deeide to aecept nonjudieial punishment, you may request a personal appearance before the eommanding 
offieer or you may waive this right. 

a. Personal appearanee 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 eommanding offieer'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 exereise 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 aecompanied by a spokesperson provided or arranged for by you. A spokesperson is not entitled 


A-l-c(l) 










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 coimnanding 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 
coimnanding 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-l-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-l-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 OE 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-l-d(l) 











(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 cormwanding 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 proeeeding. 

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 aecused) 


(Date) 


A-l-d(2) 










(Note: If the aecused 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-l-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-l-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-l-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-l-b, A-1- 
c, or A-l-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-l-e(l) 










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-l-e(2) 










CO: (To accused) Is there anything else you would like to present? 

ACC: _ 

CO: I impose the following punishment: 


My deeision 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-l-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-l-f 









PUNITIVE LETTER OF REPRIMAND 


Date 


From: Commander Cruiser-Destroyer Foree, 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 

_, which occurred, on_ 

(b) UCMJArt. 15 

(c) Para. 5 of Part V, MCM 1984 

(d) JAGMAN0114 

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. 

1220 . 


_), and SS 


April 20_ 


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-l-g(l) 

























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-l-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 reducfion 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)1 fail to plead guilty to each of the charges and specifications set forth below, (2) 


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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. 


Name of accused/Date and Place 


Signed: 


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 


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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] 


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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 


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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 


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ORDER TO TESTIFY 


IN THE MATTER OF 


3 


) 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 


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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 eonfmement 

















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 
42U.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.] 


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CONVENING AUTHORITY ACTION RECOMMENDATION 


From: Legal Officer/Staff Judge Advocate 

To: Commanding Officer,_ 

Subj: RECOMMENDATION IN THE SPECIAE/GENERAE COURT-MARTIAL CASE OF 

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

(b)JAGMAN 0151c 

Enel: (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 aceused's service record: 

(1) Eength of service; 

(2) Charaeter 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: 


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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. 


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REQUEST FOR IMMEDIATE EXECUTION OF DISCHARGE 

(See JAGMAN 0165) 


UNITED STATES ) [SPCM [GCM] NCM_ 

) REQUEST FOR IMMEDIATE EXECUTION 

V. ) OF [BAD CONDUCT] [DISHONORABEE] 

) 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 


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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. - •••••••• 


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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) 

above. ) 

(Continue with the 

Rights Advisement 

and Waiver of Rights 

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) 


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RECORD OF AUTHORIZATION FOR SEARCH 

(S££ 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 


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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. 


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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]. 1 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 


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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 reconmiended because it fulfdls the requirements of R.C.M. 1305). 

1. Loeation, date(s) eondueted, persons present (with title and role, e.g., witness, aceused. Summary 
Court-Martial, etc.) and findings. 

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

a. Convening order 

b. Charge sheet 

e. Documents and physical evidence, where practieable 

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

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

a. Pleas 

b. Offense of whieh convicted 

e. Evidence supporting guilt 

(1) Witness testimony 

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

(3) Other physieal evidenee (notation as to whether admitted or denied, deseription 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 physieal evidenee (notation as to whether admitted or denied, deseription 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. 


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OFFICER NJP REPORT 
(see JAGMAN0119) 
EETTERHEAD 


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) Conunanding General, Fleet Marine Force Pacific 

Subj: REPORT OF NONJUDICIAE PUNISHMENT IN THE CASE OF FIRST 
LIEUTENANT JOHN J. JONES 123 45 6789/1369 USMC 

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

(b) FMFPAC20 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) 

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

(2) Punitive Letter of Reprimand 

(3) IstLT Jones' Itr 1621 17 of [date] 

(4) 1 stLT Jones' statement regarding adverse matter 

1. This report is forwarded for inclusion on 1 stLt 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 IstLt 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), IstLt 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. 


FOR OFFICIAL USE ONLY 


Appendix A-1 -q( 1) 



Subj: REPORT OF NONJUDICIAL PUNISHMENT IN THE CASE OF FIRST LIEUTENANT JOHN 
J. JONES 123 45 6789/1369 USMC 

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

6. By eopy hereof, IstLT 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 
IstLT Jones 


SAMPLE FIRST ENDORSEMENT 

FIRST ENDORSEMENT on CG, IstMAW Itr 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 

I. Delivered. 


By direction 


FOR OFFICIAL USE ONLY 


Appendix A-I-q(2) 



ACKNOWLEDGEMENT OE ADVANCED EDUCATION 
ASSISTANCE REIMBURSEMENT 


I understand that, in accordance with 10 U.S.C. § 2005,1 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-l-r(l) 





CHAPTER II 

ADMINISTRATIVE INVESTIGATIONS 


PART A -- OVERVIEW AND SCOPE 
0201 CONSTRUCTION 
0202 SCOPE 

a. General 

b. Relation to UCMJ investigations 
e. Relation to other investigations 

d. Coordination with law enforcement 
investigations 

e. Access to reports of investigations 

PART B - PRELIMINARY 

CONSIDERATIONS 

0203 PRELIMINARY INQUIRY 

a. Purpose 

b. Responsibility 

c. Method 

d. Preliminary inquires into incidents involving 
potential claims or litigation 

e. Time limitations 

f Major incidents 

g. Action 

h. Review 

0204 COMMAND OPTIONS 

a. Options 

b. Analyzing the options 

0205 SEEKING COUNSEL 

0206 NO FURTHER ACTION 

PART C - THE THREE TYPES OF 
ADMINISTRATIVE 
INVESTIGATIONS 


0208 TYPE ONE: COMMAND 

INVESTIGATIONS 

a. Purpose 

b. Use Limitations 

c. Responsibilities 

d. Convening Order 

e. Method 

f Time Limitations 

g. Action 

h. Review 

0209 TYPE TWO: LITIGATION- 

REPORT INVESTIGATIONS 

a. Purpose 

b. Comparison with Command Investigations 

c. Responsibilities 

d. Convening Order 

e. Method 

f Time Limitations 

g. Action 

h. Review 

0210 TYPE THREE: COURTS AND 
BOARDS OF INQUIRY 

a. Overview 

b. Courts of Inquiry characteristics 

c. Boards of Inquiry characteristics 

d. Advisors and non-voting members 

e. Responsibilities 

f Convening order 

g. Method 

h. Participation by non-parties 

i. Time limitations 

j. Action 

k. Review 

l. Advance copies of 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 


2-2 


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. 

Faets 



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 suieides 

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 reeord 

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 


2-3 


0236 

DETERMINATIONS CONCERNING 
LINE OF DUTY / MISCONDUCT IN 

d. 

Required facts and opinions 


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 

e. 

Required facts and opinions 


determinations 

d. 

Motor vehicle accidents involving a 

d. 

Process 

e. 

Government vehicle 

Reeommendations 

0237 

MAJOR INCIDENTS AND OTHER 
CASES INVOLVING DEATH 

0243 

ACCIDENTS ABOARD SHIPS OR 


WHERE A COURT OF INQUIRY 

MAY BE APPROPRIATE 


SUBMARINES (GENERALLY) 



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 
investigations 

b. 

Required facts and opinions 

c. 

Class A aircraft accident JAGMAN 
investigations 




2-4 


0248 FIRES 

a. General 

b. Required facts and opinions 

0249 LOSS OR EXCESS OF 

GOVERNMENT 
FUNDS OR PROPERTY 

a. General 

b. Specific guidance 

c. Primary references for processing losses 
or excesses of Government property 

d. Type of investigation 

e. Loss of investigation: special notice to 
individuals affected 

f Required facts and opinions 

g. Guidelines for determining fault or 
negligence 

h. Distribution 

0250 CLAIMS FOR OR AGAINST THE 

GOVERNMENT 

a. General 

b. Procedures when claims are involved 

c. Forwarding records 

d. Claims arising in foreign countries 

e. Required facts and opinions 

f Sonic booms, jet noise, and artillery 

noise 

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 


0253 FIREARM ACCIDENTS 

a. General 

b. Required facts and opinions 

0254 OTHER INCIDENTS 

a. Pollution incidents 

b. Combined investigations of maritime 
incidents 

c. Security violations 

d. Postal violations 

e. Allegations of discrimination or sexual 
harassment 

APPENDICES 

a. Definitions 

b. Parties: Definitions and Rights 

c. Sample Command Investigation 
Convening Order and Report 

d. Sample Litigation-Report Investigation 
Appointing Order and Report 

e. Sample Privacy Act Statement Format — 
JAG Manual Investigations 

f. Sample Privacy Act Record of 
Disclosure 

g. Sample warning advisement about 
statements regarding origin of disease or 
injury 

h. Sample Documentation of Preliminary 
Inquiry 


2-5 


CHAPTER II 

ADMINISTRATIVE INVESTIGATIONS 
PART A - OVERVIEW AND SCOPE 


0201 CONSTRUCTION 

a. This chapter shall be construed to accomplish its 
goals of — 

(1) improving the substantive quality and 
usefulness of DON administrative investigations; 

(2) preserving, to the extent permitted by law, 
DON'S ability to facilitate aeeess to its investigative 
reports; and 

(3) minimizing related costs. 

b. Guidance on interpreting this chapter may be 
obtained from judge advocates or from the Deputy 
Assistant Judge Advocate General (Claims, 
Investigations, and Tort Litigation) at DSN 325-4600 
or (202) 685-4600. 

0202 SCOPE 

a. General . This chapter sets forth principles 
governing the convening, conduct, review, and storage 
of administrative investigations conducted in or by the 
Department of the Navy under the authority of this 
Manual. 

b. Relation to UCM.T investigations . In some 
circumstances, other regulations may require an 
investigation when this Manual does not. For 
example, if the only basis for an investigation is 
disciplinary action, a preliminary inquiry under Rule 
for Courts-Martial (R.C.M.) 303, Manual for Courts- 
Martial (MCM), or a pretrial investigation under 
R.C.M. 405, MCM, and Article 32, UCMJ, should be 
conducted without a separate investigation under this 
Manual. 

c. Relation to other investigations . In addition to the 
investigations governed by this Manual, investigations 
may be required by other regulations. These 
investigations have different purposes and both may be 
appropriate. For example, investigations are required 
by other regulations, such as: 


(1) situation reports prescribed by articles 0831 and 
0851, U.S. Navy Regulations, 1990 . and by 
OPNAVINST 3100.6 series, or other situation reports 
prescribed by bureau manuals or departmental 
regulations; 

(2) investigations conducted by an inspector 
general under SECNAVINST 5430.57 series; 

(3) investigations of aircraft accidents under 
OPNAVINST 3750.6 series; 

(4) reports concerning security violations 
prescribed by OPNAVINST 5510.1 series; 

(5) safety and mishap investigation reports 
required by Chapter A6 of OPNAVINST 5100.19 
series or by MCO P5102.1; 

(6) investigations conducted by the Naval 
Criminal Investigative Service (NCIS) under 
SECNAVINST 5520.3 series; 

(7) investigations of allegations against senior 
DON officials conducted pursuant to SECNAVINST 
5800.12 series. 

d. Coordination with law enforcement investigations. 

.Before conducting a preliminary inquiry or convening 
an investigation under this chapter, a commander shall 
ascertain, through liaison with the NCIS, whether a 
law enforcement investigation (military, federal, or 
civil) is pending in the same matter. If a law 
enforcement investigation is pending, the commander 
should determine whether the law enforcement 
investigation will serve to appropriately document the 
matter without further investigation under this chapter. 
(See section 0216h(2) and Part G.). If the commander 
determines that a preliminary inquiry or investigation 
needs to be conducted in addition to the law 
enforcement investigation, he or she shall: 

(1) Coordinate any preliminary inquiry or 
investigation with the cognizant law enforcement 
agency through NCIS (unless NCIS declines, in which 
case direct liaison may be made). It is recommended 


2-6 







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 
analytical tool to determine whether additional 
investigation is warranted and, if so, how it is to be 
conducted. A preliminary inquiry is not intended to 
develop facts extensively or to serve as a medium for 
analyzing facts. 

b. Responsibility 

(1) Generally, an officer in command (including an 
officer-in-charge) is responsible for initiating 
preliminary inquiries into incidents occurring within, 
or involving personnel of, the command. (The 


command of a member who is injured or dies during 
PCS transfer shall ensure that appropriate inquiries are 
conducted.) 

(2) In the event of a major incident, however, the 
officer exercising general court-martial convening 
authority over the command involved, if a flag or 
general officer, or the first flag or general officer in the 
chain-of-command, or any superior flag or general 
officer in the chain-of-command, will immediately 
take cognizance over the case as the CA. 

c. Method . A coiumander may conduct a 


2-7 






preliminary inquiry personally or through designees. 
The preliminary inquiry may be accomplished in any 
manner considered sufficient by the commander. No 
particular format is required, but the commander may 
choose to document the outcome in writing. (See 
appendix A-2-h for an example.) If the comander later 
initiates an investigation, evidence gathered during the 
preliminary proceedings shall be preserved and 
submitted to the investigating officer. 

d. Preliminary inquiries into incidents involving 
potential claims or litigation . An incident may occur in 
which there is a potential for claims or litigation for or 
against the DON or United States, but absent 
preliminary inquiry, the commander will not know 
whether the matter is more appropriately the subject of 
a command investigation, litigation report 
investigation, or court or board of inquiry. In such 
situations, the commander may choose to conduct the 
preliminary inquiry, itself, under the direction and 
supervision of a judge advocate in anticipation of 
litigation. In such instances, the commander should 
use a convening order for the preliminary inquiry and 
include the appropriate advisements described in 
section 0209. 

e. Time limitations . Generally, the preliminary 
inquiry should be completed within three working days 
of the commander’s learning of the incident in 
question. If much more time is required, then either 
the official conducting the inquiry is attempting to 
gather too much infonnation or the tasking order was 
not well defined. The commander may grant 
extensions as necessary on a case-by-case basis and 
with the limited nature of the preliminary inquiry in 
mind. A preliminary inquiry into a major incident will 
usually take longer (see subsection g below). 

f Major incidents 

(1) Investigation of major incidents (see appendix 
A-2-a for definition) is sometimes complicated by 
premature appointment of a court of inquiry. Failure 
to ascertain first the sequence of events and identify 
essential witnesses can unnecessarily prolong and 
complicate subsequent proceedings. 

(2) A convening authority (CA) will nonnally find 
it valuable to appoint an officer immediately to 
conduct a preliminary inquiry. Such officer should 
begin to locate and preserve evidence and identify and 


interview witnesses. A CA may direct such officer to 
submit oral reports, which would permit the CA to 
make a timely decision as to how to proceed with the 
investigation. It would also be an option for the CA to 
detail such an officer as an assistant to the counsel for 
a court of inquiry if one is convened. 

(3) If a CA concludes that an incident initially 
considered major does not fit within the definition of 
that tenn (see Appendix A-2-a), or concludes that a 
court of inquiry is not warranted, the CA shall, prior to 
convening another type of investigation, report such 
conclusion and the reasons therefor to the next superior 
officer in the chain-of-command. 

g. Action . A preliminary inquiry is concluded when 
the commander who initiated the inquiry has sufficient 
information to exercise one of the options listed in 
section 0204, including the option of taking no further 
action. Ordinarily, when a commander determines 
which of the options listed in section 0204 will be 
exercised, a report of that decision will be made to his 
or her immediate superior in command. (Superior 
commanders may modify this reporting requirement by 
limiting the categories of incidents that should or 
should not be reported.) Such report may be made in 
the context of existing situational reporting systems. 
No stand-alone report is required. (See, e.g., 
MILPERSMAN 4210100 for the requirement to 
submit Personnel Casualty Reports.) 

h. Review . A superior in the chain-of-command may 
direct a subordinate to exercise a specific option under 
section 0204, or to reconsider a decision made under 
that section. 

0204 COMMAND OPTIONS 

a. Options 

(1) Major incidents . When an apparent major 
incident occurs, the CA shall convene a court of 
inquiry, unless — 

(a) the preliminary inquiry reveals that the 
incident does not come within the purview of that term 
as defined in Appendix A-2-a, or 

(b) the CA detennines that a court of inquiry is 
otherwise unwarranted; and 


2-8 










(c) the next superior offieer in the ehain-of- 
eominand coneurs in the decision not to convene a 
eourt of inquiry. 

(2) Other incidents . After eonsidering the results 
of a preliminary inquiry, a CA may consult a cognizant 
judge advocate (see Appendix A-2-a for definition) to 
obtain legal advice on how to proceed and shall 
exercise one of the following options 

(a) take no further aetion; 

(b) conduet a command investigation; 

(c) convene a litigation-report investigation to be 
eonducted under the direction and supervision of a 
judge advocate; or 

(d) if authorized to do so (see section 0210), 
convene a board of inquiry. (If not authorized to do 
so, then the CA may request, via the ehain-of- 
eommand, an officer with such authority to convene 
the board.) 

(3) Line of Duty (LOD) determinations. LOD 
determinations may be made and recorded in the 
eourse of command investigations and boards and 
eourts of inquiry, but also through medieal records and 
limited investigations. See Part E and section 0229. 

b. Analyzing the options . Subjeet to the principles 
set forth below, determining which option to exercise 
is, in the first instance, a matter of command 
discretion. Superiors in the chain-of-command may, 
however, direet a CA to reconsider or to take a 
different course. A CA may, but is not required to, 
consult a judge advocate about the propriety of 
exercising a particular option. 

(1) Purpose of the investigation . Generally, the 
primary marmer in whieh the investigation will be used 
will detennine which option should be exercised. If, 
for example, an investigation will be used primarily to 
defend against a eivil lawsuit, then a litigation-report 
investigation, under the direetion of a judge advocate, 
should be condueted to ensure that the Department's 
legal interests are protected. If, by way of further 
example, an investigation is of little interest outside the 
immediate command, then the eommanding officer 
may wish merely to document the results of the 
preliminary inquiry and take no further aetion. 


(2) Powers of the investigation . In choosing an 
option, a CA should consider the powers that an 
investigative body will require to do its job. 

(a) Courts and boards of inquiry provide 
hearings, which are especially effective at resolving 
significant disputed issues of fact. 

(b) Individuals whose conduet or perfonnance of 
official duty is being questioned can best protect their 
interests by being given the rights of a party at a court 
or board of inquiry. 

(c) If subpoena power will be required, a court 
of inquiry is the only option. 

(3) Resource and time concerns 

(a) Generally, the more formal the investigation, 
the more resources and time required. Nonetheless, 
eonducting a command investigation when a court or 
board of inquiry is indicated is likely to be a false 
eeonomy, since the less formal fonnat will often fail to 
address the issues adequately. 

(b) Under circumstances where a eourt-martial 
might arise from the incident, a court of inquiry may 
prove to be effieient because it may be a valid 
substitute for the Article 32, UCMJ, investigation. 

0205 SEEKING COUNSEL 

a. Although the natural instinct of an involved 
eommander is to seek out and document facts quickly, 
doing so without attorney involvement may not only 
be counterproductive but may actually work against 
the interests of the commander, the command, and the 
Department. 

b. Whenever a question exists about how a partieular 
incident or event should be investigated, a commander 
should diseuss the matter with a cognizant judge 
advocate. 

0206 NO FURTHER ACTION 

a. Not every ineident or event warrants an 
investigation. A CA who coneludes that further 
investigation would serve no useful purpose may 
decide not to conduct one unless superior authority 


2-9 







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 
all types of administrative investigations conducted 
under the authority of this Manual are discussed in part 
D. 

0208 TYPE ONE: COMMAND 

INVESTIGATIONS 

a. Purpose . A command investigation functions to 
gather, analyze, and record relevant information about 
an incident or event of primary interest to command 
authorities. Most investigations be will of this nature. 
Command investigations may, for example , be used to 
inquire into — 

(1) significant property losses (minor property 
losses may be adequately documented through other 
means in most cases), other than damage to or 
destmction of public quarters since such incidents are 
likely to result in claims against or for the Government 
and, consequently, require a litigation-report 
investigation; 

(2) incidents in which a member of the naval 
service, as a result of possible misconduct, incurs a 
disease or injury that may result in a permanent 


disability or a physical inability to perform duty for a 
period exceeding 24 hours (distinguished from a 
period of hospitalization for evaluation or observation) 
(see Part E); 

(3) deaths of military personnel, or of civilian 
personnel occurring aboard an activity under military 
control, apparently caused by suicide or under other 
unusual circumstances (see part F for special 
considerations in death cases); and 

(4) aircraft incidents, groundings, floodings, fires, 
and collisions not determined to be major incidents 
(see part G). 

b. Use limitations . This type of investigation may 
not be used to inquire into — 

(1) major incidents (see section 0211, but also see 
section 0204a(l)(b) and (c)); 

(2) incidents that have resulted or are likely to 
result in claims or litigation against or for DON or the 
United States if the primary purpose of the 
investigation is to prepare to defend the legal interests 
of the Department and the United States (see section 
0209); and 


2-10 





(3) incidents which have the potential for causing 
significant damage to the environment, for which a 
litigation-report investigation should be condueted. 
(See OPNAVINST 5090.1 series, Environmental and 
Natural Resources Program Manual, for spill reporting 
requirements.) 

c. Responsibilities 

(1) Generally, an offieer in command (including an 
officer-in-charge) is responsible for initiating 
command investigations into incidents occurring 
within, or involving personnel of, the command. 

(2) If a commander believes that the investigation 
of an incident is impractical or inappropriate for the 
command to investigate, another command may be 
requested to conduct the investigation. When 
cireumstances such as pending deployments, 
geographieal separation, or military exigencies prevent 
the command from conducting or completing a 
thorough investigation, requests for assistance may be 
directed to superiors in the ehain-of-command. Such 
requests should contain all available infonnation, such 
as time, place, and nature of the ineident; full names, 
grades, and leave status of members; names and 
addresses of all known witnesses; and copies of all 
relevant statements, written evidence, or reports. 

(3) Whenever more than one command is involved 
in an incident requiring investigation, a single 
investigation should be conducted. Such an 
investigation may be convened by the officer in 
command of any of the aetivities concerned, and all the 
activities shall cooperate in the investigation. If 
difficulty arises in detennining the appropriate CA, 
then the matter shall be referred to the area coordinator 
or common superior. If the conduct or performance of 
duty of one of the officers in eommand may be subject 
to inquiry, then the area coordinator or common 
superior shall convene the investigation. 

(4) Whenever an ineident or event involves only 
members of the other Military Departments, the nearest 
command of the member's parent serviee shall be 
notified and requested to contact the cognizant 
authority. If requested to do so by the other 
Department, then an investigation shall be convened 
and the report forwarded per the direction of the parent 
service. No further action need be taken within DON. 


(5) Incidents involving Marine Corps personnel. 

(a) When an investigation of a training or 
operational ineident causing serious injury or death 
(other than a major incident or aviation accident) is 
required, the senior eommander in the chain-of- 
command to the organization involved will eonsider 
convening the investigation and appointing the 
investigating officer at that level. No member of the 
organization suffering the incident, nor any member of 
the staff of a range or other training faeility involved in 
the incident, shall be appointed to conduct the 
investigation without the coneurrenee of the next 
senior commander. (For speeial routing instructions 
for training and operations incidents causing serious 
injury or death, see seetion 0240 and Part F.) 

(b) If Marine Corps personnel are involved in a 
non-major ineident requiring an investigation while in 
an area geographically removed from the parent 
command, the commanding officer shall request 
investigative assistance from a Marine commander 
authorized to convene general courts-martial in the 
immediate area where the incident oeeurred or, in the 
absence of such an officer, from the Commanding 
General, Marine Forces Reserve. 

d. Convening order . The convening order — 

(1) may direct the investigating officer to seek the 
assistance of a judge advocate; 

(2) may direct the investigating officer to provide 
opinions or recommendations in addition to finding 
facts; 

(3) shall specify when the investigative report is 
due; 

(4) may not designate parties; 

(5) shall direct, in applicable cases (see section 
0202d), investigators to eoordinate the JAGMAN 
investigation with NCIS/Security personnel who may 
be condueting criminal investigations, requiring the 
report of any conflict to the CA for resolution; and 

(6) should identify potential witnesses and sources 
of information, and otherwise provide such direction as 
the CA determines necessary or proper including 


2-11 




specifying the format in which the report will be 
submitted. (Normally, a letter report supported by 
enclosures will be specified. See appendix A-2-c for a 
sample convening order and report.) 

e. Method 

(1) A command investigation — 

(a) is convened in writing; 

(b) is conducted by one or more persons in the 
Department; 

(c) collects evidence by personal interviews, 
telephone inquiries, or written correspondence; 

(d) is documented in writing in the manner 
prescribed by the CA in the convening order; 

(e) does not involve hearings; and 

(f) may contain sworn statements signed by 
witnesses. 

(2) A command investigation may assign certain 
issues, witnesses, or specific matters to individual 
members for investigation if more than one 
investigating officer is appointed, and hold later 
meetings to review the information collected for 
completeness. Additionally, the investigation may 
proceed by calling witnesses to present testimony or by 
obtaining information through personal interview, 
correspondence, telephone inquiry, or other means. 

f Time limitations . The CA will prescribe when the 
report is due, normally 30 days from the date of the 
convening order (except in death cases, however, 
where the investigation is to be completed 20 days 
from the date of the death, or its discovery). The CA 
may grant extensions as necessary. Requests and 
authorizations for extensions need not be in writing but 
must be memorialized in the preliminary statement 
and/or endorsement, as applicable. 

g. Action . A CA may determine that the 
investigation is of no interest to anyone outside the 
command, and, unless otherwise directed by superior 
authority, may choose to treat it as an internal report. 
(See section h(5) below for retention guidance.) If the 
CA intends to forward the report of investigation: 


(1) Upon receiving a command investigation report 
from the investigating officer(s), the CA shall review 
or have the report reviewed, and either endorse the 
report in writing or return it to the investigating officer 
for further investigation. In the endorsement, the CA 
may approve, disapprove, modify, or add to the 
findings of fact, opinions, and recommendations. The 
CA may also concur in or disagree with 
recommendations which the CA cannot implement at 
the CA's level. If the CA did not require opinions and 
recommendations in the convening order, then the CA 
shall state such opinions and make such 
recommendations as deemed appropriate. The CA 
shall also indicate what corrective action, if any, is 
warranted and has been or will be taken. The CA shall 
also state in the endorsement where any original 
evidence is preserved and provide the name and 
telephone number of the responsible official (see 
section 0214c for further infonnation on the 
safekeeping of evidence). 

(2) The CA shall retain a copy of the report and 
forward the original, through the chain-of-command 
(including area coordinators when appropriate), to the 
officer who exercises general court-martial convening 
authority (GCMCA) over the CA. The subject matter 
and facts found will dictate the routing of the report for 
further review. (Note: The GCMCA may, by 
regulation, specify forwarding requiremenfs for 
investigations into certain categories or types of 
incidents for subordinate commands.) The CA shall 
also provide copies of the report to other commands 
which may have an interest, such as the Naval Safety 
Center, the local legal service office, or the Office of 
the Judge Advocate General. The CA shall maintain 
copies of all command investigations for a minimum 
of 2 years. 

(a) Copies of investigations in which the 
adequacy of medical care is reasonably in issue and 
which involve significant potential claims, permanent 
disability, or death shall be provided to the Naval 
Inspector General; Chief, Bureau of Medicine and 
Surgery; and the local legal service office (Note: Most 
incidents of this nature involving potential claims 
should be the subject of a litigation-report 
investigation.) 

(b) If an investigation involves a claim or redress 
of injuries to property under Article 139, UCMJ, see 


2-12 





Chapter IV. (Note: Most incidents of this nature 
should be the subject of a litigation-report 
investigation.) 

(c) See section 0218 for additional information 
on routing copies of the investigative report. 

(d) See section 0240 for special routing 
requirements in death cases. 

(3) The CA's action on the report should be 
completed within 30 days of receiving the report 
(except in death cases, where section 0233c requires 
CA review in 20 days). 

h. Review 

(1) A GCMCA superior to the CA must review any 
command investigation which has been forwarded. 
Thus if the first reviewer is not a GCMCA, the 
investigation will require additional review. (Note: 
Superior commanders may, by regulation or on an ad 
hoc basis, provide direction concerning review and 
forwarding of investigations consistent with this 
chapter.) The subject matter and facts found will 
dictate the routing of the report for additional review. 
As a general rule, intermediate reviewing authorities 
should complete their review and forward the 
investigation within 30 days. In death cases, 
endorsers shall complete this review within 20 days 
(see section 0233c). Command investigations are not 
routinely forwarded to JAG (copies may be provided 
to JAG, Code 15, if the matter is of potential interest to 
JAG). All investigations are considered final when the 
last reviewing authority determines that further 
endorsement is not necessary. 

(2) Investigations that involve loss, compromise, or 
possible compromise of classified information shall be 
routed per OPNAVINST 5510.1 series to the Chief of 
Naval Operations (N09N), Washington, DC 20350- 
2000 . 

(3) See section 0240 for special routing 
requirements in death cases. 

(4) Copies of the report should be made available 
to all superior commanders who have a direct official 
interest in the recorded facts. Area coordinators or 
designated subordinate commanders have a direct 
official interest in incidents that affect their command 


responsibility or occur in their geographic area. 
Generally, copies need not be provided to the Chief of 
Naval Operations or to the Commandant of the Marine 
Corps but copies of investigations into the following 
types of incidents shall be forwarded to the codes 
indicated: 

(a) incidents that may result in extensive media 
exposure (N09C or CMC (JA)); 

(b) training incidents causing death or serious 
injury (N7 or CMC (JA)); 

(c) operational incidents causing death or serious 
injury (N3/5 or CMC (JA)); 

(d) incidents involving significant fraud, waste, 
abuse, or significant shortages of public property or 
funds (N09G or CMC (CL)); 

(e) incidents involving lost, missing, damaged, 
or destroyed property of significant value (N09G or 
CMC (CL)); 

(f) incidents involving offieer misconduct (N1 or 
CMC (JAM)); 

(g) incidents that are required to be reported to 
Headquarters by other directives or regulations (as 
appropriate); 

(h) incidents or investigations that may require 
action by CNO or CMC (as appropriate); and 

(i) eases involving significant postal losses or 
offenses (N4 or CMC (MHP-50)). 

(5) Reports shall be retained by the CA, 
GCMCA, or by the last commander to whom they are 
routed for a period of 2 years from the time that they 
are received. After 2 years, investigative reports 
shall be sent to Office of the Judge Advocate 
General, Claims, Investigations, and Tort Litigation 
(Code 15), 1322 Patterson Avenue SE, Suite 3000, 
Washington Navy Yard, DC 20374-5066 for storage. 
If the CA or GCMCA reeeives a request for an 
investigative report, that command shall submit a 
request for the investigation to Code 15. Code 15 
will forward the investigation to the requesting 
command. Once the command has responded to the 
inquiry, the eommand shall return the investigation to 
Code 15 for storage. (See section 0214c on storing 


2-13 



and protecting original evidence.) 

0209 TYPE TWO: LITIGATION-REPORT 
INVESTIGATIONS 

a. Purpose . Investigations serve many purposes but 
when an incident or event is likely to result in claims 
or civil litigation against or for DON or the United 
States (see chapter VIII of the Manual for more 
infonnation on claims and/or chapter XII, section 
1205, concerning admiralty incident investigations 
when litigation is anticipated), the primary purpose of 
the resulting investigation is often to prepare to 
defend the legal interests of the Department and the 
United States. A command should contact a judge 
advocate at the earliest opportunity prior to 
commencing a litigation-report investigation to 
detennine if a litigation-report investigation is the 
appropriate type of investigation to be conducted 
under the circumstances. Investigations into such 
incidents must be conducted under the direction and 
supervision of a judge advocate, and protected from 
disclosure to anyone who does not have an official 
need to know. When investigations are conducted in 
anticipation of litigation, but are not conducted under 
the direction and supervision of a judge advocate or 
are handled carelessly, legally they carmot be 
protected from disclosure to parties whose litigation 
interests may be adverse to the interests of the United 
States. In such an event, the materials gathered 
during the investigation become evidence even if 
subsequently proven incorrect or inaccurate. It is 
imperative, therefore, that litigation-report 
investigations be conducted in accordance with the 
mles that follow. 

b. Comparison with command investigations 

(1) Unlike a command investigation, a litigation- 
report investigation must be — 

(a) convened only after consultation with a 
cognizant judge advocate; 

(b) conducted under the direction and 
supervision of that judge advocate; 

(c) conducted primarily in anticipation of claims 
or litigation; and 

(d) forwarded to the Judge Advocate General. 


(2) Like a cormnand investigation, a litigation- 
report investigation — 

(a) may not be used to investigate a major 
incident; 

(b) may not have designated parties; and 

(c) does not involve hearings, 

c. Responsibilities 

(1) After consulting a judge advocate, an officer in 
cormnand is responsible for initiating litigation-report 
investigations into incidents involving the command or 
its persormel. The cognizant judge advocate, however, 
is responsible for supervising the conduct of the 
investigation. This does not mean that the judge 
advocate is the investigating officer, but it does mean 
that the investigating officer works under the direction 
and supervision of the judge advocate while 
conducting the investigation. 

(2) The cognizant judge advocate may request the 
assistance of the CA or ask the CA to request help 
from superiors in the CA's chain-of-command when 
circumstances such as pending deployments, 
geographic separation, or military exigencies prevent a 
thorough investigation from being conducted or 
completed. Such requests should contain all relevant 
information and indicate that the investigation is being 
conducted in contemplation of litigation (see section 
0209d(2)), and should be processed accordingly. 

(3) Whenever more than one command is involved 
in an incident requiring a litigation-report 
investigation, a single investigation under the 
supervision of a single judge advocate should be 
conducted. All concerned activities shall cooperate in 
the investigation. If difficulty arises in determining the 
appropriate CA, then the matter shall be referred for 
resolution to the common superior having a judge 
advocate on staff. 

(4) When service members or their family 
members are injured by third parties and admitted to a 
naval medical treatment facility, the facility 
cormnanding officer shall report such incidents, not 
under known investigation. Such incidents shall be 
reported to the member's command, to the area 
coordinator, or to the designated subordinate 


2-14 





commander, and to the legal service offiee in whose 
geographic area of responsibility the incident occurred, 
so that any necessary investigation may be made. (See 
Chapter VIII.) 

d. Convening order 

(1) The eonvening order shall identify the judge 
advoeate under whose direction and supervision the 
investigation is to be condueted. The convening order 
shall direet the investigating officer to report to that 
judge advocate before beginning to eollect evidence, 
and to comply with the judge advocate's direction and 
supervision thereafter. Opinions or recommendations 
will not be requested in the eonvening order. (To 
proteet their confidentiality, opinions and 
recommendations should be requested or written by 
the supervising judge advoeate.) The order shall 
specify when the investigative report is due. 

(2) The order shall state specifieally that; "This 
investigation is being convened and your report is 
being prepared in contemplation of litigation and for 
the express purpose of assisting attorneys representing 
the interests of the United States in this matter." 

(3) The order shall caution the investigating officer 
that the investigation's eonduct and results may be 
diseussed only with personnel having an official need 
to know. The order may identify potential witnesses 
and other sourees of information. Parties may not be 
designated. 

(4) A sample convening order is shown in 
appendix A-2-d. 

e. Method 

(1) A litigation-report investigation shall — 

(a) be convened in writing; 

(b) be eonducted by one or more persons in 
DON under the direction and supervision of the 
cognizant judge advocate; 

(e) collect evidence by personal interviews, 
telephone inquiries, written correspondence, or other 
means; 

(d) be documented in writing in the manner 


prescribed by the cognizant judge advocate (see 
appendix A-2-d for a sample); and 

(e) shall not contain statements signed by 
witnesses. (Signed statements are subject to discovery 
and release to opposing parties in civil litigation even 
if provided to an attorney.) 

(2) During the course of a litigation-report 
investigation, the investigating officer shall be guided 
by the eognizant judge advocate and shall consult 
frequently as the investigation progresses. When it is 
neeessary to obtain evidence such as expert analyses, 
outside consultant reports, and so forth, the judge 
advoeate should sign the necessary requests. The 
investigating officer shall present the preliminary 
findings to the judge advoeate for review. The judge 
advocate may direct the investigating officer to provide 
opinions and recommendations or the judge advocate 
may write the opinions and reeommendations. 

(3) When the report is compiled, it shall be marked 
"FOR OFFICIAL USE ONLY; LITIGATION / 
ATTORNEY WORK PRODUCT" and be signed by 
both the investigating officer and the cognizant judge 
advoeate. 

f Time limitations . The CA will prescribe when the 
report is due, normally 30 days from the date of the 
convening order. The CA may grant extensions at the 
request of the cognizant judge advocate. Requests and 
authorizations need not be in writing but should be 
memorialized in the preliminary statement. 

g. Action 

(1) Upon receiving a litigation-report investigation 
report, the CA shall review the report or eause it to be 
reviewed, and either endorse the report in writing or 
return it to the cognizant judge advocate for further 
inquiry. In the CA's endorsement, comment may be 
provided on those aspects of the report that bear on the 
administration or management of the command. The 
CA should, for example, indieate what corrective 
action, if any, is warranted and has been or will be 
taken. The CA shall not normally approve or 
disapprove the findings of fact. If the CA is 
dissatisfied with the findings, the CA may return the 
report to the cognizant judge advocate for additional 
information. The CA shall state in the endorsement 
where the original evidence is preserved and provide 


2-15 






the name and telephone number of the responsible 
official (see section 0214c for further information on 
the safekeeping of evidence). The CA's endorsement 
shall be marked: "FOR OFFICIAL USE ONLY: 
LITIGATION / ATTORNEY WORK PRODUCT." 

(2) The CA shall retain a copy of the report and 

forward the original to the Judge Advocate General 
(Code 15), Department of the Navy, 1322 Patterson 
Avenue SE Suite 3000, Washington Navy Yard, DC 
20374-5066, via the staff judge advocate of the 
GCMCA in the chain-of- command. The copy must 
be kept in a file marked "FOR OFFICIAL USE 
ONLY: LITIGATION/ATTORNEY WORK 

PRODUCT" and be safeguarded against improper 
disclosure. The CA will provide superiors in the 
chain-of-command and other commands which have a 
direct official need to know the results of the 
investigation, such as the local legal service office, 
with a copy of the report but shall not otherwise 
disseminate the report without consulting a judge 
advocate. 

(a) Copies of investigations of incidents, other 
than "Health Care Incidents" (see section 0251), in 
which the adequacy of medical care is reasonably at 
issue and which involve significant potential claims, 
permanent disability, or death shall be provided to the 
Chief, Bureau of Medicine and Surgery. 

(b) If an investigation involves a claims matter 
or redress of injuries to property under Article 135, 
UCMJ, see Chapter IV. 

(c) See section 0218 for additional information 
on routing copies. 

(3) The CA's action on the report should be 
completed within 20 days of receiving the report. 

h. Review 

(1) Superiors in the chain-of-command who 
receive a copy of a litigation-report investigation may, 
but are not required to, comment on the report. They 
should, however, take such action as may be 
warranted. They will not normally approve or 
disapprove the findings of fact. Copies must be kept in 
files marked "FOR OFFICIAL USE ONLY: 
LITIGATION/ ATTORNEY WORK PRODUCT" and 
safeguarded against improper disclosure. Copies may 


be provided to other commands which have an official 
need to know the results of the investigation but the 
report shall not be otherwise disseminated without 
consulting a judge advocate. 

(2) Staff judge advocates through whom litigation- 
report investigations are routed shall review the report 
for accuracy and thoroughness, coordinate any further 
investigation with the cognizant judge advocate or 
JAG, and forward the report not later than 30 days 
after it is received. The report need not be forwarded 
to JAG via fonnal endorsement. 

0210 TYPE THREE: COURTS AND BOARDS 
OE INQUIRY 

a. Overview . Courts and boards of inquiry use a 
hearing procedure and should be reserved for the 
investigation of major incidents (as that term is defined 
in Appendix A-2-a) or serious or significant events. 
Additional infonnation on the characteristics and 
conduct of courts and boards of inquiry is set forth in 
JAGINST 5830.1 series. It there is a conflict with that 
instruction, this Manual controls. 

b. Court of Inquiry characteristics 

(1) Convened by persons authorized to convene 
general courts-martial or so designated by the 
Secretary of the Navy. (See Article 135, UCMJ.) 

(2) Consists of at least three commissioned 
officers as members and has appointed legal counsel 
for the court. It may also include advisors appointed to 
assist the members and non-voting members. (See 
subsection d below for additional information on 
advisors and non-voting members.) 

(3) Convened by written appointing order. 

(4) Uses a hearing procedure. Takes all testimony 
under oath and records all open proceedings verbatim, 
except arguments of counsel, whether or not directed 
to do so in the appointing order. 

(5) Designates as parties persons subject to the 
UCMJ whose conduct is subject to inquiry (see 
Appendix A-2-b). 

(6) Designates as parties persons subject to the 
UCMJ or employed by the Department of Defense 
who have a direct interest in the subject under inquiry 


2-16 





and request to be so designated. 

(7) Has the power to order military personnel to 
appear, testify, and produce evidence, and the power to 
subpoena civilian witnesses to appear, testify, and 
produce evidence. (Article 47, UCMJ, provides for 
prosecution of civilian witnesses in U.S. district court 
for failing to appear, testify, or produce evidence.) 

c. Board of Inquiry characteristics 

(1) Convened by persons authorized to convene 
general courts-martial. 

(2) Consists of one or more commissioned officers, 
and should have appointed legal counsel for the board, 
ft may also include advisors appointed to assist the 
members. (See subsection d below for additional 
information on advisors.) 

(3) Convened by written appointing order, which 
should direct that all testimony be taken under oath and 
all open proceedings, except counsel's argument, 
recorded verbatim. Persons whose conduct is subject 
to inquiry or who have a direct interest in the subject of 
the inquiry may be designated parties by the convening 
authority in the appointing order. The CA may also 
authorize the board to designate parties during the 
proceedings (see Appendix A-2-b). 

(4) Uses a hearing. 

(5) Does not possess power to subpoena civilian 
witnesses unless convened under article 135, UCMJ, 
and Chapter IV, but can order naval personnel to 
appear, testify, and produce evidence. 

d. Advisors and non-voting members . 

(1) The convening authority may appoint to a court 
or board of inquiry full-time Federal personnel 
(military or civilian) to participate in the proceedings 
and advise the members. Such advisors may be 
selected because of their subject-matter expertise or 
because of their background, training, or experience. 
Advisors may be present at all board or court sessions, 
are subject to challenge to the same extent as members, 
and may suggest courses of inquiry or recommend 
such other action to the board or court as they consider 
appropriate. Moreover, persons with technical 
knowledge may be appointed for either full 


participation or the limited purpose of utilizing their 
special expertise. If appointed for a limited purpose, 
they need not participate in any aspect of the inquiry 
not concerning their expertise. The investigative 
report must clarify any limited participation by 
advisors. 

(2) The convening authority may appoint one or 
more non-voting members, whose level of 
participation in the proceedings will be as determined 
by the convening authority or the senior member of the 
court when so authorized by the convening authority. 
An example of when it may be appropriate to appoint a 
non-voting member is when a court is convened to 
investigate an incident in which a friendly nation or 
ally has a significant interest and the convening 
authority determines that it will serve the interests of 
the United States to invite a representative from the 
friendly nation or ally to participate, in a non-voting 
capacity. 

e. Responsibilities 

(1) The officer exercising general court-martial 
convening authority over the cormnand most involved 
in a major or serious incident, if a flag or general 
officer, or the first flag or general officer in the chain- 
of-command, or any superior flag officer in the chain- 
of-command, will immediately take cognizance over 
the case as the convening authority. 

(2) Whenever more than one command is involved 
in a major or serious incident requiring fonnal 
investigation, a single investigation shall be conducted. 
The common superior commander shall convene the 
investigation in such cases, unless that officer's 
conduct or performance of duty may be subject to 
inquiry, in which case the next superior in the chain- 
of-command shall convene the investigation. 

f Convening order . See JAGINST 5830.1 series for 
the requirements for convening orders for courts and 
boards of inquiry. 

g. Method . See JAGINST 5830.1 series for 
information on how courts and boards of inquiry are 
conducted. 

h. Participation by non-parties . Other than the 
official members, counsel, advisors, non-voting 
members, and administrative support personnel, only 


2-17 








parties may, as a general rule, participate in the 
proceedings of a court or board of inquiry. The CA, or 
the president in the case of a eourt of inquiry, may, 
however, permit the participation of an individual or 
organization that has an interest in the subject under 
inquiry. For example, the Federal Aviation 
Administration may be permitted to participate in an 
investigation inquiring into the cireumstances 
surrounding an aircraft crash. Appropriate limits on 
the degree to which such participation may be 
conditioned should be specified in advance. 

i. Time limitations . The CA shall prescribe when the 
report is due according to the complexity and gravity 
of the incident under investigation. The CA may grant 
extensions in writing. Requests and authorizations for 
extensions must be included in the report as 
enclosures. 

j. Action 

(1) Upon receiving a report from a court or board 
of inquiry, the CA shall review it or cause it to be 
reviewed, and either endorse the report in writing or 
return it for further investigation. In the endorsement, 
the CA may approve, disapprove, modify, or add to the 
findings of fact, opinions, and recommendations. The 
CA shall also indicate what corrective action, if any, is 
warranted and has been or will be taken. The CA shall 
state in the endorsement where the original evidence is 
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 Coiumander 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 


be retained for such purpose. A complete certified 
copy shall be forwarded to the Echelon II Commander 
via appropriate authorities. 

(4) The CA's action on the report should be 
completed within 30 days of receiving the report. 

k. Review . Superiors who receive a report from a 
court or board of inquiry shall have it reviewed, and 
shall forward it to the cognizant Echelon II 
Commander, via the chain-of-command. In their 
endorsements, intermediate reviewing authorities shall 
comment on the report and state their concurrence or 
disagreement with the findings of fact, opinions, and 
recommendations. They shall also state what action is 
considered warranted or has been taken. Reports, as a 
general rule, should be forwarded within 30 days of 
receipt. 

l. Advance copies of investigations 

(1) In all cases where it is appropriate to 
forward an advance copy of an investigation, the 
advance copy shall be forwarded by the CA and shall 
include that officer’s endorsement. 

(2) All advance copies of Marine Corps 
investigations shall be forwarded to the Commandant 
of the Marine Corps after endorsement by the 
convening authority. 


2-18 






PART D - PRINCIPLES APPLICABLE TO ALL TYPES OF 
ADMINISTRATIVE INVESTIGATIONS 


0211 CONVENING ORDERS 

a. General form . Convening orders must be in 
official letter fonn addressed from the convening 
authority to the senior member of a board or court, or 
to the investigating officer(s) of a command or 
litigation-report investigation. When circumstances 
warrant, an investigation may be convened by oral or 
message order. Signed, written confirmation of oral or 
message orders must be issued in each case and 
included in the investigative report. Convening orders 
must; recite the specific purposes of the inquiry and 
contain explicit instructions about its scope; require 
findings of fact (it may, unless a litigation-report 
investigation is being convened, also require opinions 
and recommendations); and contain directions for 
complying with the Privacy Act, Article 31, UCMJ, 
section 0202d (coordinating with law enforcement 
authorities), and section 0220c (concerning statements 
about origin of disease or injury), as necessary. 

b. Amendments . A convening authority may amend 
a convening order at any time to change membership, 
limit or increase the scope of the inquiry, or provide 
additional instructions. During the investigation, if it 
appears to the fact-finders, or to the cognizant judge 
advocate in the case of a litigation-report investigation, 
that the convening authority might consider it 
advisable to enlarge, restrict, or modify the scope of 
the inquiry or to change in any material respect an 
instruction provided in the convening order, a report 
shall be made to the convening authority. The 
convening authority may take any action on this report 
deemed appropriate. 

0212 PERSONNEL AND COSTS 

a. Member and investigating officer qualifications . 
Personnel detailed to conduct an investigation shall be 
individuals who, in the opinion of the convening 
authority, are best qualified by reason of their age, 
education, training, experience, length of service, and 
temperament. Most command or litigation-report 
investigations will be conducted by a commissioned 
officer, but a warrant officer, senior enlisted person, or 
civilian employee may also be used when the 
convening authority considers it appropriate. 


Whenever practical, an investigating officer should be 
senior in rank to any individual whose conduct is 
subject to inquiry. See section 0241c for statutory 
membership qualifications in conducting Class A 
aircraft accident JAGMAN investigations. 

b. Assistance and technical support . For timely 
completion of an investigation, a convening authority 
may appoint reporters and interpreters and authorize 
other assistance. Experts, reporters, interpreters, and 
so forth should be provided or appointed to a 
litigation-report investigation only upon the request of 
the cognizant judge advocate. (See section 0210d 
regarding appointment of advisors to boards and courts 
of inquiry.) 

c. Costs . The costs of travel, per diem, consulting 
fees, or other related expenses of conducting or 
participating in an administrative investigation 
conducted under the authority of this Manual, will be 
charged to the operation and maintenance budget of 
the convening authority. (See section 0146 regarding 
fees of civilian witnesses.) 

0213 OATHS 

a. General . Personnel conducting a preliminary 
inquiry, a command investigation, or a litigation-report 
investigation need not be sworn. 

b. Administration of oaths . Although normally not 
required, a person on active duty appointed to perform 
investigative functions for a JAGMAN investigation is 
empowered to administer the following oaths in the 
performance of duties: 

(1) For reporters—"Do you swear (or affirm) that 
you will faithfully perform the duties of reporter for 
this proceeding (so help you God)?"; 

(2) For interpreters—"Do you swear (or affinn) that 
you will faithfully perform the duties of interpreter for 
this proceeding (so help you God)?"; and 

(3) For witnesses—"Do you swear (or affirm) that 
the evidence you shall give in the matter now under 


2-19 








investigation shall be the truth, the whole truth, and 
nothing but the truth (so help you God)?". 

0214 PROOF OF FACTS - STANDARDS OF 

PROOF 

a. General . An administrative investigation need not 
be conducted in accordance with the formal rules of 
evidence applicable to courts-martial. It may use the 
most effective methods for collecting, analyzing, and 
recording all relevant infonnation and may include in 
its investigative report any relevant matter that a 
reasonable person would consider to be believable or 
authentic. 

b. Standards of proof 

(1) Preponderance of evidence . Except for facts of 
which a court may take judicial notice (see Military 
Rules of Evidence 201 and 201a, MCM), an 
administrative investigation shall arrive at findings of 
fact only if supported by a preponderance of the 
evidence unless a higher standard is required as set 
forth below. 

(2) Clear and convincing . This tenn means such 
evidence as would convince an ordinary prudent- 
minded person beyond a well-founded doubt. It is a 
higher degree than a preponderance of the evidence 
(“more likely than nof’) standard, but it does not 
require proof beyond a reasonable doubt as in criminal 
cases. See also paragraph 3 of Appendix A-2-a. 
Findings of fact relating to the following issues must 
be established by clear and convincing evidence: 

(a) to rebut the presrunption that an injury, 
disease, or death has been incurred in the line of duty; 

(b) to rebut the presumption of mental 
responsibility when the question of a member's mental 
responsibility has been raised by the facts or by the 
nature of the incident; 

(c) to rebut the presumption that an unauthorized 
absence period of less than 24 hours did not materially 
interfere with the performance of the member's 
military duties in line of duty/misconduct cases; or 

(d) to find that the acts of a deceased service 
member may have caused harm or loss of life, 
including the member's own, through intentional acts. 


(3) Inferences . An investigation may not 
speculate on the causes of an incident. Inferences 
drawn from evidentiary enclosures or personal 
observations, however, are permissible. For example, 
an investigation may determine, through tangible 
evidence, the likely chain of events relative to the 
subject of investigation. However, it is, in most cases, 
irrelevant and improper for an investigative body to 
theorize about the thought processes of an individual 
that resulted in certain courses of conduct. 

c. Evidence 

(1) Safekeeping 

(a) To the extent consistent with mission 
requirements, the investigating officer and the 
convening authority will ensure that all evidence is 
properly preserved and safeguarded until the 
investigation is complete and all relevant actions have 
been taken. Perishable or unstable items of evidence 
(such as tire tracks) should be promptly photographed 
or otherwise preserved, preferably by trained 
personnel. Evidence should not be handled by 
untrained personnel unless absolutely necessary to 
preserve its integrity. 

(b) Original items with evidentiary value must be 
retained or adequate steps taken to ensure their safe 
storage. Operational commands are encouraged to 
make satisfactory storage arrangements with 
supporting elements ashore in this regard. The CA's 
forwarding endorsement must indicate where the 
evidence is maintained, what arrangements have been 
made for its safekeeping, and report the name and 
telephone number of the responsible official. 

(c) For fungible items, chain-of-custody 
documents must also be preserved together with the 
evidence to which they relate. Consult a judge 
advocate for assistance. (See OPNAVINST 5580.1 
series for further information; OPNAV Form 5527/11 
is the "Evidence/Property Custody Receipt" form and 
includes space for chain-of-custody documentation.) 

(d) Failure to properly safeguard and account for 
evidence may result in its inadmissibility in subsequent 
legal proceedings and in prejudice to the interests of 
the Government. 


2-20 


(2) Tangible evidence . Whenever the condition, 










location, or other characteristic of an item of tangible 
evidence has probative value, include the item or a 
photograph, description, chart, map, or suitable 
reproduction in the investigative report. Discretion, 
however, must be exercised in enclosing graphic 
photographs since doing so has significant potential for 
shocking the sensitivities of relatives and others to 
whom the investigation may ultimately be released. 
When including such materials, place them in a 
separate envelope marked: "CAUTION, CONTAINS 
GRAPHIC PHOTOGRAPHS. VIEWER 

DISCRETION WARRANTED." If an investigator or 
board member observes an item and gains relevant 
sense impressions, e.g., noise, texture, smells, or any 
other impression not adequately portrayed by a 
photograph, chart, map, or other representation, the 
impressions should be recorded and included as an 
enclosure to the report. 

(3) Documentary evidence . Documentary evidence 
includes records, logs, documents, letters, diaries, 
reports, and statements. Documents should indicate 
their source and specify any special restrictions on 
their disclosure to third parties. Originals or 
authenticated copies should be obtained when possible. 
Completion and forwarding of investigations will not 
be delayed to await final reports, originals, or similar 
documents unless their inclusion is absolutely essential 
to the completion of the investigative report. Instead, 
the unavailability of such items should be noted and 
the investigation completed and forwarded. 
Documents subsequently obtained shall be forwarded 
by separate correspondence via the review chain, with 
appropriate reference to the report of investigation. 

(4) Photographs . When photographs are included as 
part of the investigation, the following infonnation 
should be included on the reverse side: The hour and 
date they were taken; a brief description of the location 
or area photographed; the full name and rank or rate of 
the photographer; and full names and addresses of 
persons present when the photographs were taken. If 
available, the photographer should be asked to provide 
details surrounding the taking of the photographs such 
as type of camera, distance from object, and so forth. 
Similar information should be on a label affixed to any 
videotape included in the investigation. 

(5) Requests for preservation of aircraft wreckage 
following a crash . Immediately upon receipt, all 
requests for the preservation of aircraft wreckage will 


be forwarded to NAVAIR (Air 412). If available, the 
original request with any attachments should be 
forwarded. Copies of the forwarding letter and the 
original request with all attachments shall be 
forwarded separately to JAG (Codes 14 and 15). 

d. Witnesses and warnings 

(1) Witnesses not suspected of misconduct or 
improper performance of duty 

(a) Command _ investigations . Ordinarily, 

witnesses should provide statements in informal 
interviews. They may be required, however, to 
provide recorded testimony under oath. Probing 
questions as to "who," "what," "where," "when," 
"how," and "why" should be pursued. To avoid 
irrelevant material or omission of important facts, an 
investigator may assist a witness in preparing a written 
statement. When an investigator takes an oral 
statement, it should be reduced to writing and signed 
by the witness or certified by the investigator to be an 
accurate summary or verbatim transcript. Care should 
be taken to ensure that any statement is phrased in the 
actual language of the witness. 

(b) Litigation-report investigations . Witnesses 
will be asked probing questions but they will not, in 
most cases, be asked to make a written statement or to 
sign a statement that the investigator has prepared. 
Rather, the investigator should summarize the results 
of the interview, using care to be as accurate and 
complete as possible, and authenticate the summary 
with the investigator's own signature. If, for any 
reason, the investigating officer believes that a witness 
should be asked to submit a signed statement, the 
cognizant judge advocate should be consulted first. 
For example, if a witness with interests clearly adverse 
to the Government's is willing to provide a signed 
statement that is clearly beneficial to the Government, 
then the cognizant judge advocate should direct the 
investigating officer to obtain the signed (and sworn, if 
possible) statement. 

(c) Boards and courts of inquiry . Generally, all 
testimony is taken under oath in open session. 

(2) Witnesses suspected of an offense, misconduct. 
or improper performance of duty . Ordinarily, an 
investigation should collect relevant information from 
all other sources before interviewing persons suspected 


2-21 














of an offense, miseonduct, or improper performance of 
duty. Also, prior liaison with the appropriate staff 
judge advocate is advised, to ensure investigators have 
coordinated with law enforcement officials and will 
not impede any criminal investigations into the same 
incident (see section 0202d). Before the interview, 
military suspects must be advised of Article 31, 
UCMJ, warnings. (See Appendix A-l-m.) Civilian 
personnel offices should be consulted about applicable 
collective bargaining requirements before interviewing 
civilian employees suspected of misconduct. 

(3) Cautioning witnesses . To reduce the possibility 
that disclosure of witnesses' testimony may influence 
the testimony of future witnesses, an investigating 
officer may direct witnesses subject to naval authority 
not to discuss their testimony. Witnesses not subject to 
naval authority may be requested not to discuss their 
testimony. 

(4) Statements regarding origin of disease or injury . 
Prior to being asked to provide any statement relating 
to the origin, incidence, or aggravation of a disease or 
injury, the affected member shall be warned of the 
right not to make such a statement. Without this 
warning, the statement is invalid. See 10 U.S.C. § 
1219 and section 0220c of this Manual. Where a 
statement relating to the origin, incidence, or 
aggravation of a disease or injury is invalid, the 
member may be provided the warning, advised that the 
prior statement is invalid and cannot be used in any 
way, and then asked to reiterate the statement. If the 
member then elects to provide another statement, it 
may be included in the investigation. 

0215 PRIVACY ACT COMPLIANCE 

Per the Privacy Act of 1974 (5 U.S.C. § 552a) and 
SECNAVINST 5211.5 series (see Chapter V), the 
following procedures apply to administrative 
investigations conducted under this Manual: 

a. Advice required . When the Government requests 
an individual to supply personal information (see 
appendix A-2-a for the definition of "personal 
information") about himself in a statement to be 
maintained in a system of records retrievable by the 
individual's name or personal identifier, the individual 
shall be provided in duplicate a Privacy Act statement 
containing the particular information prescribed in 
SECNAVINST 5211.5 series. The requirement for a 


Privacy Act statement is separate from other applicable 
warnings or advisement. Requests for infonnation 
about what a Government officer, employee, or 
member did, observed, or thought while performing 
official duties does not require a Privacy Act 
statement. 

b. Social security numbers . A Privacy Act statement 
must be used if a member or employee is asked to 
voluntarily provide his or her Social Security number 
for an investigation. If Social Security numbers are 
obtained from other sources (e.g., service records), the 
individual need not be provided a Privacy Act 
statement. If Social Security numbers are obtained 
from other sources, this should be noted in the 
preliminary statement of the investigation. Social 
Security numbers should not be included in 
investigation reports unless they are necessary to 
identify precisely the individuals in question, such as 
in cases involving serious injury or death. 

c. Procedure and contents . The original Privacy Act 
statement should be signed by the individual and 
appended to the record of the investigation. The 
individual retains the duplicate. If the information is 
requested in an interview or hearing, the Privacy Act 
statement should be orally summarized and explained 
to ensure that the individual fully understands it. 
Appendix A-2-e contains proposed language that 
includes information required for a Privacy Act 
statement. Locally prepared forms in the format of 
Appendix A-2-e are authorized. 

d. Reviewing authorities . Prior to forwarding an 
investigative report, the CA will ensure compliance 
with the Privacy Act. 

e. Records of disclosure . Appendix A-2-f is 
recommended for use in recording and accounting for 
disclosures of information about identifiable 
individuals from records that are collected, used, or 
maintained under the authority of this Manual. Local 
reproduction is authorized. 

0216 INVESTIGATIVE REPORTS 

a. General . Investigative reports shall be submitted 
in the format prescribed by the CA or, in the case of a 
litigation-report investigation, by the cognizant 
judge advocate. Normally, a letter format will be 
specified. (Appendices A-2-c and A-2-d are sample 


2-22 











investigative reports.) 

b. Classifieation . Sinee investigative reports may be 
circulated widely, classified information should be 
omitted unless inclusion is absolutely essential. If 
unclassified information is important to the report's 
accuracy but is contained in a classified document, 
then the unclassified information should, if possible, be 
extracted from the classified document and included in 
the investigative report. When classified matter must 
be included, the report shall be classified at the highest 
level of any classified matter contained therein. 
Encrypted versions of messages shall not be included 
or attached to investigative reports where the content 
or substance of such message is divulged elsewhere in 
the report. 

c. Preliminary statement 

(1) A preliminary statement informs convening and 
reviewing authorities that all reasonably available 
evidence was collected or is forthcoming and each 
directive of the convening authority has been met. 
After setting forth the nature of the investigation, the 
preliminary statement details difficulties encountered, 
extensions requested and granted, limited participation 
by any member or advisor, and any other information 
necessary for a complete understanding of the case. 
The itinerary of an investigator or board in obtaining 
information is not required. 

(2) The preliminary statement in a litigation-report 
investigation shall state expressly that the report was 
prepared under the supervision of a judge advocate in 
contemplation of litigation by or against the United 
States. 

(3) A preliminary statement does not eliminate the 
necessity for findings of fact. For example, 
notwithstanding statements in both the subject line and 
the preliminary statement that the investigation 
involves an aircraft accident and death of the pilot, the 
findings of fact must describe the aircraft, time, and 
place of the accident, identify the pilot, and provide 
other relevant information. 

d. Findings of fact . Findings of fact must be as 
specific as possible as to times, places, persons, and 
events. Make each fact a separate finding, and cite the 
enclosure supporting each finding. 

e. Opinions . Opinions are reasonable evaluations. 


inferences, or conclusions based on the facts found. 
Each opinion must cite the findings of fact upon which 
it is based. Opinions shall not be expressed unless 
requested by the CA, or by the cognizant judge 
advocate in the case of a litigation-report investigation. 

f Recommendations . Recommendations depend on 
the nature of the facts found and opinions expressed. 
Recommendations shall not be offered unless 
requested by the CA, or by the cognizant judge 
advocate in the case of a litigation-report investigation. 
The CA or cognizant judge advocate may require 
recommendations in general or limited subject areas. 
Unless directed by proper authority, an investigator 
shall not prefer charges (preferral of charges starts the 
"speedy trial clock" running) or notify an accused of 
recommended charges. (For recommendafions 
pertaining to the issuance of punitive and nonpunitive 
letters, see section 0217.) 

g. Signing and authentication 

(1) Command investigations and boards and courts 
of inquiry . The investigating officer or senior member 
(or in the senior member's absence, the next senior 
member), respectively, must sign the investigative 
report. Dissents may be written and, if written, must 
be attached to the report. 

(2) Litigation-report _ investigations . The 

investigating officer and the cognizant judge advocate 
should both sign the investigative report. If, however, 
they cannot agree on a particular portion of the report, 
then the judge advocate alone shall sign the report. 
The investigating officer may, but is not required to, 
separately document the basis for any disagreement. 

h. Enclosures 

(1) General . The first enclosure is the signed, 
written appointing order or signed, written 
confirmation of an oral or message appointing order. 
Subsequent enclosures should contain all evidence 
developed by the investigation. Each statement, 
affidavit, transcript or summary of testimony, 
photograph, map, chart, document, or other exhibit 
should be a separate enclosure. Enclosures should be 
listed in the order in which they are cited in the body of 
the investigation. 

(2) NCIS investigations . NCIS investigations 


2-23 














consist of the report of investigation (ROI) (the 
narrative summary portion) and enelosures. ROI's 
shall not be included in administrative investigation 
reports. Unless a local NCIS office indicates to the 
contrary, clearance is not required for inelusion of 
enelosures to the ROI in an administrative 
investigative report. Neither polygraph reports nor 
their results may be included in the investigative 
report; however, the faet that a polygraph 
examination occurred and the location of the file 
maintained by the investigative agency administering 
the polygraph examination may be noted. Comments 
regarding an individual's refusal to undergo a 
polygraph examination shall not be included in any 
administrative investigative reports. If necessary for 
a full understanding of the incident, the loeation of 
the ROI should be eross-referenced in the 
administrative investigative report. 

(3) Authentieation . Signatures of board members 
or of the investigating offieer(s) on an investigative 
report shall be sufficient to authenticate all enclosures. 
(See the next section on photographs.) 

(4) Photographs . Convening authorities shall 
ensure compliance with sections 0214 and 0233d when 
photographs are included as part of the investigation. 
In addition, convening authorities shall ensure that the 
negatives of the photographs are placed in a sealed 
envelope and forwarded with the original investigation 
in all cases exeept those investigations condueted as a 
result of an admiralty incident. In those cases, section 
1207c shall apply. 

0217 DISCIPLINARY ACTION 

Whenever punitive or nonpunitive action is 
contemplated or taken as the result of the incident 
under inquiry, the action shall be noted in the 
endorsement of the eonvening or reviewing authority. 
(For example, the endorsement could read: "Prmitive 
action is not warranted; however, appropriate 
correetive measures were taken in the case of ENS 
Smith.") Prmitive letters, or copies of recommended 
drafts thereof, shall be included in the investigative 
report as enclosures. Nonpunitive letters (or 
recommended drafts) are private in nature and shall not 
be specifically mentioned in endorsements or included 
as enclosures in the investigative report. Drafts shall 
be separately forwarded to the appropriate commander 
for issuance. Except where an individual was afforded 


the rights of a party, nonjudicial punishment may not 
be predieated exclusively upon the findings of an 
investigation eonducted under this chapter, nor may 
the report of such an investigation be used in lieu of a 
pretrial investigation under Article 32(c), UCMJ. 

0218 ROUTING COPIES 

a. Number of copies . One complete eopy of the 
investigation shall be forwarded with the original for 
each intennediate reviewing authority. In cases 
involving death or injury of members, the original shall 
be forwarded with sufficient eopies so that the ultimate 
addressee reeeives the original and two copies. If one 
command conducted an investigation upon the request 
of another, then a copy of the report should be sent to 
the requesting command. 

b. Cases involving injury or death of Naval personnel 

or damage to ship, submarine, aircraft, or other 

Government property . The convening authority shall 
forward an advance eopy of the reeord or report of 
investigation as soon as practieal in cases involving 
injuries and deaths of naval personnel or material 
damage to a ship, submarine, or Government property 
(except aircraft) to: Cormnander, Naval Safety Center, 
Naval Air Station, Norfolk, VA 23511-5796. 
Commanders subsequently reviewing such a record or 
report shall forward advance copies of their 
endorsements as above. In cases of aircraft accidents, 
advanee copies of investigations and endorsements 
thereon will be forwarded to Commander, Naval 
Safety Center only upon request. Advance eopies will 
be provided to servicing legal serviee offiees in cases 
involving potential claims or civil lawsuits. 

c. Medical malpractice cases . Two eopies of 
investigative reports into potential medieal malpractice 
cases should be provided to Chief, Bureau of Medicine 
and Surgery, Navy Department, Washington, DC, 
20350-2000. 

d. Commands receiving copies of investigative report 

that want to eomment or make recommendations . 

Commands receiving copies of investigative reports 
may provide all or some of the commands concerned 
with their eomments and recommendations; these 
cormnents do not become part of the investigative 
report unless a reviewing authority expressly 
incorporates them. 


2-24 











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(l) 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 infonnation, 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. 


2-25 







PART E - LINE OE DUTY/MISCONDUCT 


0220 WHEN LINE OE DUTY/MISCONDUCT 
DETERMINATIONS ARE REQUIRED 

a. General . If a member incurs a disease or injury 
that may result in a permanent disability or that results 
in the member's physical inability to perform duty for a 
period exceeding 24 hours (as distinguished from a 
period of hospitalization for evaluation or observation), 
then determining whether the disease or injury was 
incurred in the line of duty or as the result of 
misconduct is very important. An injury or disease 
suffered by a member of the naval service will, 
however, be presumed to have been incurred in the line 
of duty and not as a result of misconduct unless 
contrary findings are made. 

b. Death cases . A line of duty determination is 
required whenever an active duty servicemember of 
the naval service dies, in order to make decisions 
concerning eligibility and armuity calculations under 
the Uniformed Services Survivor Benefit Program. 
See Part F, section 0236. 

c. Warning required . Any person in the Anned 
Forces, prior to being asked to sign any statement 
relating to the origin, incidence, or aggravation of any 
disease or injury that he or she has suffered, shall be 
advised of the right not to sign such a statement. See 
10 U.S.C. § 1219. The spirit of this section will be 
violated if a person, in the course of an investigation, 
obtains the member’s oral statements and reduces them 
to writing, unless the above advice was given first. 
Compliance with this section must be documented. 
( See Appendix A-2-g for a sample.) 

0221 WHY LINE OE DUTY/MISCONDUCT 
DETERMINATIONS ARE REQUIRED 

a. General . Line of duty/misconduct determinations 
are extremely important since they control several 
personnel actions. The most important are SBP 
benefits, disability retirement pay, and severance pay. 

b. Disability retirement and severance pay . To be 
eligible to receive certain retirement and severance pay 
benefits, members of the naval service on active duty 


who sustain injuries resulting in permanent disability 
must have received those injuries in the line of duty 
and not due to their own misconduct. 10 U.S.C. §§ 
1201, 1203, 1204, 1206, and 1207 require a 
determination that "the disability is not the result of the 
member's intentional misconduct or willful neglect, 
and was not incurred during a period of unauthorized 
absence." Although the degree and permanent nature 
of the disability will be determined pursuant to 
SECNAVINST 1850.4 series, the detennination 
regarding line of duty/misconduct will be made by the 
line commander in accordance with the provisions of 
this chapter. The line of duty/misconduct 
determination made pursuant to this chapter will be 
binding on the Physical Evaluation Board, subject to 
limitations set forth in SECNAVINST 1850.4 series. 

0222 WHAT CONSTITUTES LINE OF DUTY 

a. General . For purposes of these regulations only 
(the award of disability retirement and severance pay 
are bound by separate standards regarding injuries 
incurred during a period of unauthorized absence, see 
subsection d(2) below), injury or disease incurred by 
naval personnel while in active service, and death 
incurred by naval persormel on active duty, will be 
considered to have been incurred “in line of duty” 
except when incurred under one or more of the 
following circumstances: 

(1) as a result of the member’s own 
misconduct as determined under the regulations 
contained in this chapter; 

(2) while avoiding duty by deserting; 

(3) while absent without leave and such 
absence materially interfered with the perfonnance of 
required military duties (see subsection d below); 

(4) while confined under a sentence of 
court-martial that included an unremitted 
dishonorable discharge, or 

(5) while confined under a sentence of a 
civil court following a conviction of an offense that 


2-26 








is defined as a felony by the law of the jurisdietion 
where eonvieted. 

b. Active service defined . "Active service" as used 
in this section includes full-time duty in the naval 
service, extended active duty, active duty for training, 
leave or liberty from any of the foregoing, and inactive 
duty training. Inactive duty training is duty prescribed 
for reservists by the Secretary of the Navy and special 
additional duties authorized for reserves, performed 
voluntarily in connection with prescribed training or 
maintenance activities at their units. (See 
SECNAVINST 1770.3 series.) 

c. Active duty defined for death cases . Active duty 
for purposes of line of duty detenninations in death 
cases is defined in 10 U.S.C. § 101(d)(1). It includes 
active duty for training, even for periods less than 30 
days, but it does not include inactive duty training. 

d. Unauthorized absence 

(1) Whether absence without leave materially 
interferes with the perfonnance of required military 
duties necessarily depends upon the facts of each 
situation, applying a standard of reality and common 
sense. No definite rale can be formulated as to what 
constitutes "material interference." Generally speaking, 
absence in excess of 24 hours constitutes a material 
interference unless evidence to the contrary exists. 
Similarly, an absence of shorter duration will not be 
considered a material interference unless there is clear 
and convincing evidence to establish the contrary. A 
statement of the individual's commanding officer, 
division officer, or other responsible official, and any 
other available evidence to indicate whether the 
absence constituted a material interference with the 
performance of required military duties, should be 
included in the record whenever appropriate. 

(2) Under chapter 61 of title 10, United States 
Code . (10 U.S.C. § 1207), a member is ineligible for 
physical disability retirement or physical disability 
severance benefits from the Armed Forces if the 
disability was incurred during a period of unauthorized 
absence, regardless of the length of such absence and 
regardless of whether such absence constituted a 
material interference with the performance of required 
military duties. Therefore, any injury incurred during 
a period of unauthorized absence requiring a line of 
duty/misconduct detennination pursuant to the 


provisions of section 0220, must be the subject of a 
command investigation. 

0223 WHAT CONSTITUTES MISCONDUCT 

a. Generally . "Misconduct," as used in this chapter, 
is a term of art. It is more than just inappropriate 
behavior. An injury or disease is the result of a 
member's misconduct if it is either intentionally 
incurred or is the result of willful neglect which 
demonstrates a reckless disregard for the foreseeable 
and likely consequences of the conduct involved (for 
death cases, however, see sections 0225(c) and 0236). 
Simple or ordinary negligence, or carelessness, 
standing alone, does not constitute misconduct. The 
fact that the conduct violates law, regulation, or order, 
or is engaged in while intoxicated, does not, of itself, 
constitute a basis for a misconduct determination. 

b. Presumption . An injury, disease, or death 
suffered by a member of the naval service is presumed 
to have been incurred in the line of duty and not to be 
the result of misconduct. Clear and convincing 
evidence (see section 0214) is required to overcome 
this presumption. 

c. Examples . If an individual deliberately shoots 
off a toe to avoid duty, the injury is due to misconduct 
since it was intentionally incurred. If an individual 
shoots off a toe while playing Russian roulette, the 
injury is due to misconduct since such conduct 
demonstrates a reckless disregard for the foreseeable 
and likely consequences. If an individual shoots off a 
toe while bolstering a pistol with the safety off, the 
injury is not due to misconduct; rather, it is the result 
of the negligent failure to observe a safety precaution. 

0224 RELATIONSHIP BETWEEN 

MISCONDUCT AND LINE OF DUTY 

a. General . For purposes of these regulations, 
"misconduct" can never be "in line of duty." Hence, a 
finding or determination that an injury was incurred as 
a result of the member's own misconduct must be 
accompanied by a finding or detennination that the 
member's injury was incurred "not in line of duty." It 
is pennissible, however, to find that an injury was 
incurred "not as a result of misconduct" and "not in 
line of duty." As an example, a member who is absent 
without authority may be injured by a felonious assault 
or struck by a vehicle driven by a drunken driver. 


2-27 










Obviously, the injury was incurred through no fault of 
the member, but if the absence interfered with the 
performance of his required military duties a finding of 
"not in line of duty" must result. 

b. Possible findings . The only possible combinations 
of findings are: 

(1) "In line of duty" and "not due to the member's 
own misconduct;" 

(2) "Not in line of duty" and "not due to the 
member's own misconduct;" and 

(3) "Not in line of duty" and "due to the member's 
own misconduct." 

0225 MENTAL RESPONSIBILITY 

a. General rule . A member may not be held 
responsible for particular actions and their foreseeable 
consequences if, as the result of mental defect, disease, 
or derangement, the member was unable to 
comprehend the nature of such acts or to control his or 
her actions. 

b. Presumption . In the absence of evidence to the 
contrary, all members are presumed to be mentally 
responsible for their acts. If a question of the mental 
responsibility of a member is raised by the facts or by 
the nature of the incident, this presumption ceases and 
the investigation must clearly and convincingly 
establish the member's mental responsibility before an 
adverse determination can be made. 

c. Suicide attempts and suicides . In view of the 
strong human instinct for self-preservation, suicide 
and a bona fide suicide attempt, as distinguished 
from a suicidal gesture, creates a strong inference of 
lack of mental responsibility. Self-inflicted injury, 
not prompted by a serious suicidal intent, is at most a 
suicidal gesture, and such injury, unless lack of 
mental responsibility is otherwise shown, is deemed 
to be incurred as the result of the member’s own 
misconduct. See Part F, section 0236. 

0226 INTOXICATION AND DRUG ABUSE 

a. Intoxication . In order for intoxication alone to be 
the basis for a misconduct determination, clear and 


convincing evidence must show that the member was 
intoxicated sufficiently to impair the rational and full 
exercise of his or her mental or physical faculties at the 
time of the injury and that the impairment was the 
proximate cause of the injury. Intoxication or 
impainnent may be produced by alcohol, a drug, or 
inhalation of fumes, gas, or vapor. 

b. Presumption 

(1) In cases involving alcohol, it may be presumed 
that when a member has a blood-alcohol content of. 10 
percent by volume or greater, the member was then 
intoxicated sufficiently to impair the rational and full 
exercise of his or her mental or physical faculties. This 
presumption is rebuttable but, if not rebutted, is of 
sufficient strength to provide clear and convincing 
evidence of the member's impairment. The 
presumption alone, however, does not establish 
anything about the proximate cause of the injury. 

(2) For example, if a sailor is injured while driving 
with a voluntarily induced blood-alcohol content of .10 
percent by volume, then it may be presumed that the 
sailor was impaired due to intoxication to the extent 
that he could not fully exercise his mental or physical 
faculties at the time of the wreck. To find misconduct, 
however, it still must be shown that the resulting 
impainnent was the proximate cause of the injury. 
Thus, if the accident were caused solely by the 
wrongdoing of another driver, then the sailor's 
impainnent was not the proximate cause of the injury. 

(3) Intoxication, as described in section 0227a, may 
also be found when there is no blood-alcohol content 
measurement available or when it measures less than 
.10 percent by volume. In such cases, all relevant 
information concerning the member's condition at the 
time of the injury or incident should be considered. 

c. Alcohol and drug-induced disease . Inability to 
perform duty resulting from disease directly 
attributable to a specific, prior, proximate, and related 
intemperate use of alcohol or habit-fonning drugs is 
the result of misconduct. See 37 U.S.C. § 802. Time 
spent in evaluating habituation without specific 
inability to perfonn duty shall not be charged as time 
lost due to misconduct. 

0227 REFUSAL OF MEDICAL AND DENTAL 
TREATMENT 

If a member unreasonably refuses to submit to 


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medical, surgical, or dental treatment, any disability 
that proximately results from sueh refusal shall be 
deemed to have been incurred as a result of the 
member's own misconduct. See chapter 18, Manual of 
the Medical Department. 


0228 RELATIONSHIP TO DISCIPLINARY 
ACTION 

An adverse line of duty/miseonduct determination is 
not a punitive measure. If warranted, eommanders 
should take independent disciplinary action. Similarly, 
a favorable line of duty/miseonduct determination does 
not preclude separate disciplinary action. Nor is such a 
favorable determination relevant or binding on the 
issue of guilt or innocenee of the member in a separate 
diseiplinary proceeding. 

0229 HOW LINE OE DUTY/MISCONDUCT 
DETERMINATIONS ARE RECORDED 

a. General . As noted above, injuries or disease 
suffered by naval persormel are presumed to have been 
incurred in the line of duty and not as a result of a 
member's miseonduct. Each injury or disease 
requiring line of duty/ misconduct detenninations (see 
0220) must be the subject of a preliminary inquiry. 
(See 0236d for LOD determinations in death cases.). 
If, however, following a preliminary inquiry the 
conditions set forth in subparagraph c below are met, 
then the member's command need not convene an 
investigation and need not report the line of 
duty/misconduct determinations separately. Thus, if 
appropriate entries in the member's health or dental 
records are made, and the command does not convene 
an investigation, then the presumption that the 
member's injuries or disease were incurred in the line 
of duty and were not a result of the member's 
miseonduct will not be rebutted. 

b. Reporting . If the command completing the 
preliminary inquiry is not a GCMCA, the command 
will report the eircumstanees surrounding the injury 
and results of the preliminary inquiry to its GCMCA 
using the Personnel Casualty Report system (see 
MILPERSMAN 4210100). Unless the GCMCA 
directs otherwise, the command will provide a copy of 
this preliminary inquiry report to the appropriate 
medical department for inclusion in the health or dental 
record as part of the entry deseribed in subparagraph c. 


Of course, the GCMCA may review the preliminary 
inquiry and order an investigation. 

c. Entry in _ health _ or dental _ record . An 

investigation need not be eonvened and a report need 
not be forwarded concerning misconduet and line of 
duty when, in the opinion of the medical officer (or 
senior representative of a medical department), with 
the concurrenee of the commanding officer, the injury 
or disease was incurred "in line of duty" and "not as a 
result of the member's own misconduct" and 
appropriate entries to this effect have been made in the 
member's health or dental reeord. See chapter 16, 
Manual of the Medical Department. 

d. Command investigations . A command must 
convene an investigation and make findings 
concerning miseonduct and line of duty when — 

(1) the injury was incurred under eircumstanees 
which suggest a finding of "miseonduct" might result. 
These circumstances inelude, but are not limited to, all 
cases in whieh a qualifying injury was incurred — 

(a) while the member was using illegal drugs; 

(b) while the member's blood aleohol eontent 
was of. 10 percent by volume or greater. This does not 
preclude the convening of an investigation if the 
blood-aleohol percentage is lower than .10, if the 
circumstances so indicate; and 

(e) as a result of a bona fide suicide attempt; 

(2) the injury was incurred under eircumstanees 
that suggest a finding of "not in line of duty" might 
result; 

(3) there is a reasonable chance of permanent 
disability and the commanding officer considers the 
convening of an investigation essential to ensure an 
adequate official record is made concerning the 
circumstances surrounding the incident; or 

(4) the injured member is in the Naval Reserve or 
the Marine Corps Reserve and the commanding officer 
considers an investigation essential to ensure an 
adequate official record is made eonceming the 
circumstances surrounding the ineident. (See 
SECNAVINST 1770.3 series for additional 


2-29 






information on Reserve Component Incapacitation 
Benefits and their relationship to line of 
duty/misconduct findings.) 

0230 ACTION BY REVIEWING AUTHORITIES 

a. Action by convening authority . Unless the report 
is returned for further inquiry into the circumstances 
behind the disease or injury, (see Part F for death 
cases) the convening authority will make a line of 
duty/misconduct detennination by taking one of the 
following actions: 

(1) If the CA concludes that an injury or disease 
was incurred "in line of duty" and "not due to the 
member's own misconduct" (or that clear and 
convincing evidence is not available to rebut the 
presumption of in line of duty/not due to misconduct), 
this conclusion shall be expressed in the action on the 
record of proceedings. This action may be taken 
regardless of whether it differs from or concurs with an 
opinion expressed by the investigating officer. 

(2) If, upon review of the report, the convening (or 
higher) authority believes that the injury or disease of 
the member was incurred not in line of duty or due to 
the member's own misconduct, then prior to taking 
action that authority must afford the member (or the 
member's representative if the member is mentally 
incompetent to understand the nature of the action) 
notice of the preliminary determination and an 
opportunity, not exceeding 10 calendar days, to submit 
any desired information for the CA's consideration. 
Additional time may be granted by the CA for good 
cause. 

(a) The member will be advised that he or she 
does not have to make any statement relating to the 
origin, incidence, or aggravation of any injury or 
disease. If any information is obtained from the 
member, a statement attesting that the above warning 
was given must be attached. (See section 0220 and 
appendix A-2-g.) 

(b) If the member is also suspected or accused of 
any offense under the UCMJ, then the member should 
also be advised in accordance with Article 31, UCMJ, 
and of rights to counsel. Suspect's Rights 
Acknowledgement/Statement forms should be used for 
such advice. (See appendix A-l-m of this Manual.) 


(c) Upon request, the member may be permitted 
to review the investigative report but not to copy it. 
(After the report is final, the member may have a right 
under the Privacy Act to a copy of the report. See 
Chapter V of this Manual for further information.) 

(d) If the member elects to provide any 
information, it shall be considered by the CA and 
attached to the record. 

(e) If the member elects not to provide any 
information, or fails to respond within 10 calendar 
days, that election or failure shall be noted in the CA's 
endorsement. 

b. Action by general _ court-martial _ convening 

authority . 

(1) Unless the CA is empowered to convene general 
courts-martial, the report shall be forwarded via the 
chain-of-command to an officer empowered to 
convene general courts-martial with an assigned judge 
advocate. This officer may take any action on the 
report that could have been taken by the CA. With 
respect to conclusions concerning misconduct and line 
of duty, the GCMCA shall indicate approval, 
disapproval, or modification of such conclusions 
unless the record is returned for further inquiry. A 
copy of this action shall be forwarded to the 
commanding officer of the member concerned, so that 
appropriate entries may be made in the member's 
service and medical records (see below). Reviewing 
authorities subsequent to the officer exercising general 
court-martial jurisdiction, if any, need neither comment 
nor record approval or disapproval of the prior actions 
concerning line of duty and misconduct. 

(2) The investigation should not normally be 
forwarded to the Judge Advocate General. 

(3) Copies of the report shall be provided to — 

(a) the Naval Safety Center when the report 
reveals systemic safety problems; 

(b) the local legal service office if potential 
claims by or against the Government may be involved 
(this is of special concern where medical care has been 
furnished and the Government may be entitled to 
recover third party medical claims); and 


2-30 





(c) other commands having a direct official 
interest in the matter. 

(4) The GCMCA shall keep the original 
investigation for a period of 2 years. 

c. Follow-up actions . As noted above, after the 
GCMCA reviews and approves the line of 
duty/misconduct findings, the commanding officer of 
the concerned member must cause appropriate service 
and health record entries to be made to include the 
GCMCA action. A copy of the GCMCA action will 
be made an enclosure to all line of duty/misconduct 
health record entries resulting from cormnand 
investigations. In this regard, the following 
information is provided: 

(1) Extension of enlistment . An enlisted member 
of the naval service, unable to perform duties for more 
than 1 day because of intemperate use of dmgs or 
alcohol or because of disease or injury resulting from 
the member's misconduct, must, after returning to full 
duty, serve for a period that, when added to the period 
previously served, amounts to the term for which the 
member enlisted or was inducted. See 10 U.S.C. § 
972. 

(2) Longevity and retirement multiplier . Eligibility 
for increases in pay because of longevity and the 
amount of retirement pay to which a member may be 
entitled is dependent upon cumulative years of 
"creditable service." An enlisted member who is 
unable to perform duties for more than 1 day because 
of intemperate use of dmgs or alcohol or because of 
disease or injury resulting from misconduct is not 
entitled to include such periods in computing 
"creditable service." Paragraph 10104, Department of 
Defense Military Pay and Allowances Entitlement 
Manual (DODPM). 

(3) Forfeiture of pay . A member of the naval 
service on active duty who is absent from regular 
duties for a continuous period of more than 1 day 
because of disease that is directly caused by and 
immediately follows intemperate use of alcohol or 
habit-forming drags is not entitled to pay for the period 
of that absence. If pay is forfeited for more than 1 
month, however, the member is entitled to $5.00 for 
personal expenses for each month that his pay is 
forfeited. Paragraph 10315c, DODPM. Pay is not 
forfeited for absence from duty caused by injuries. 


Pay is not forfeited for diseases not directly caused by 
and immediately following intemperate use of liquor or 
habit-forming drags. Paragraph 10315b, DODPM. 

(4) Disability retirement and severance pay . As 
noted in section 0221, to be eligible for disability 
retirement or severance pay, a member's injuries must 
meet the requirements established by applicable 
statutes. One of these requirements is that the 
injury/disability not have resulted from the member's 
"intentional misconduct or willful neglect" nor have 
been "incurred during a period of unauthorized 
absence." The Physical Evaluation Board in awarding 
any disability payment in accordance with 
SECNAVINST 1850.4 series is bound by line of 
duty/misconduct determinations made pursuant to this 
chapter. 

(5) Benefits administered by the Department of 
Veterans Affairs . In detennining whether a veteran or 
the veteran's survivors or dependents are eligible for 
certain benefits, the Department of Veterans Affairs 
makes its own determination with respect to 
misconduct and line of duty. As a practical matter, 
these detenninations must rest upon the evidence 
available and generally this will be those facts that 
have been officially recorded and are on file within the 
Department of the Navy. Statutes governing these 
benefits generally require that disabling injury or death 
be "service connected," which means the disability was 
incurred or aggravated, or, that the death resulted from 
a disability incurred or aggravated, "in line of duty." 
38 U.S.C. § 101. The statutory criteria for making such 
determinations are contained in 38 U.S.C. § 105. 

0231 SPECIAL CONSIDERATIONS IN 
RESERVE COMPONENT CASES 

Per DODDIR 1241.1 of 3 December 1992, CA's must 
issue "interim" line of duty determinations within 7 
days of being notified that a reservist not on the active 
duty list has an incapacitating injury or illness incurred 
or aggravated while on active duty (including leave 
and liberty therefrom), active duty for training, inactive 
duty training, or travel to or from such duty. This 
interim determination is intended to ensure that the 
reservist's incapacitation pay can be started without 
delay. If the final line of duty/misconduct 
determination is adverse to the member, irmnediate 
action must be taken to stop incapacitation benefits. 
(See SECNAVINST 1770.3 series for further 


2-31 









information.) 

0232 CHECKLIST FOR LINE OF 

DUTY/MISCONDUCT INVESTIGATIONS 

The following is a checklist of matters that should be 
included, as applicable, in any report of an 
investigation convened to inquire into and make 
recommendations concerning misconduct and line of 
duty under the provisions of this chapter. 

a. Identifying information . The complete name, 
grade or title, service or occupation, and station or 
residence of all persons, military, and civilian, killed or 
injured incident to the event under investigation. (See 
section 0215 for advice required to be given by the 
Privacy Act if social security numbers are requested.) 

b. Facts . All facts leading up to and connected with 
an injury, disease, or death. 

c. Records . Military or civilian police accident 
reports, pertinent hospitalization or clinical records, 
death certificates, autopsy reports, records of coroners' 
inquests or medical examiners' reports, and 
pathological, histological, and toxicological studies. If 
originals cannot be included, then the report shall state 
where the originals are located and the name and 
telephone number of the official responsible for their 
safekeeping. 

d. Site of incident . Complete information concerning 
the site and terrain where the incident in question 
occurred as well as photographs, videotapes, maps, 
charts, diagrams, or other exhibits that may be helpful 
to a complete understanding of the incident. When 
photographs are included as part of the investigation, 
the following information should be included on the 
reverse side: The hour and date they were taken; a 
brief description of the location or area photographed; 
the full name and rank or rate of the photographer; and 
full names and addresses of persons present when the 
photographs were taken. If available, the photographer 
should be asked to provide details surrounding the 
taking of the photographs such as type of camera, 
distance from object, and so forth. Similar information 
should be on a label affixed to any videotape included 
in the investigation. 

e. Duty status . Include all pertinent facts with 
respect to the duty, leave, liberty, or unauthorized 


absence status of an individual at the time of the 
incident. 

f. Reserves . When the person involved is a member 
of a Reserve component of the Navy or Marine Corps, 
complete information as to the member's status in 
relation to extended active duty, active duty for 
training, or inactive duty training (or travel to and from 
such duty) at the time of the incident must be stated. 

g. Injuries . Complete information as to the nature 
and extent of all injuries to naval personnel and the 
place and extent of any hospitalization resulting 
therefrom. Include costs when civilian facilities are 
used. Also include the amount of "lost" time. 

h. Impairment . (See section 0226 regarding 
applicable presumption.) When relevant, evidence 
regarding the state of intoxication and the extent of 
impairment of the physical or mental faculties of any 
person involved and connected with the incident. 
Evidence as to the individual's general appearance and 
behavior, rationality of speech, coordination of 
muscular effort, and all other facts, observations, and 
opinions of others bearing on the question of actual 
impainnent shall be obtained and recorded. Efforts 
shall be made to determine the quantity and nature of 
the intoxicating agent used and the period of time over 
which used by the person. Results of any blood, 
breath, urine, or tissue tests for the intoxicating agent 
should also be obtained and submitted as exhibits. 

i. Mental competence . When material, evidence 
regarding the mental competence or impairment of the 
deceased or injured person. In all cases of suicide or 
attempted suicide, evidence bearing on the mental 
condition of the deceased or injured person shall be 
obtained. This will include all available evidence as to 
social background, actions, and moods immediately 
prior to the suicide or the suicide attempt, any troubles 
that might have motivated the incident, and any 
relevant medical or counseling information. 

j. Privacy Act . Document that each enclosure 
containing personal information solicited from an 
individual for inclusion in a record system retrievable 
by name or personal identifier complies with the 
Privacy Act. (See section 0215.) 

k. Warnings about injury or disease . Document that 
statements solicited from an injured member respecting 


2-32 












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


PART F - SPECIAL CONSIDERATIONS IN DEATH CASES 


0233 GENERAL 

a. Special _ considerations . The circumstances 

surrounding the death of naval personnel, or of civilian 
personnel at places under military control, may be 
recorded in a variety of ways, such as autopsy reports, 
battlefield reports, and medical reports. Investigations 
conducted pursuant to this Manual may also focus on 
such deaths and may incorporate other official reports 
as enclosures. Since reports pertaining to deaths of 
military members are, by law (see 10 U.S.C. § 113 
note; Pub. L. 102-484, Div. A, Title X § 1072, 23 Oct 
92; 106 Stat. 2508) generally releasable to family 
members, and since the deceased cannot contribute to 
the investigation process, special considerations prevail 
in the investigation of death cases. 

b. NCIS notification . NCIS must be notified, 

per SECNAVINST 5520.3 series, of any death 
occurring on a Navy vessel or Navy/Marine Corps 
aircraft or installation (except when the cause of 
death is medically attributable to disease or natural 
causes). 

c. Time limitations . The period for completing the 
administrative investigation report/record into a death 
shall not normally exceed 20 days from the date of the 
death, or its discovery. For good cause, however, the 
convening authority may extend the period. Requests 
and authorizations for extensions must be coordinated 
with the next reviewing authority. The CA and 
subsequent reviewers have 20 days to review and 
endorse the investigation. Noncompliance with these 
time requirements must be explained in the 
endorsement of the deviating command and 
commented upon by subsequent endorsers. See 
MILPERSMAN 4210100 for the requirement to 
submit Status Investigation Reports. 

d. Release of death investigations 

(1) Policy for release to next of kin . As a 


nonnal rule, death investigations reports/records shall 
not be released to the public until they are final (see 
section 0219). In the interest of providing the 
decedent's next of kin with timely information, 
however, it is DON policy that upon completion of the 
review by the first flag officer in the chain of 
command, the reviewer shall release an advance copy 
of the investigation, per a request, to the next of kin. 
The release of an advance copy to requesting next of 
kin shall be made unless release would violate law 
(e.g., investigation classified), or the endorser can 
articulate how release would harm the command's 
mission, or would interfere with an ongoing criminal 
investigation, or why release should not be made for 
good cause. If an endorser does not wish to release an 
investigation to requesting next of kin, this decision 
shall be coordinated with OJAG, Code 15, at 202-685- 
4600/DSN 325-4600. 

(2) Delivery to next of kin . In providing 
death investigations to the next of kin, consideration 
should be given to the potential impact of the report. 
Section 0240b directs that graphic photographs are to 
be separately wrapped and labeled. Similar procedures 
should be employed for autopsy reports and other 
written materials containing graphic details of injury, 
wounds, mutilation, etc. In order to assist those who 
may still be grieving to understand the meaning and 
significance of the report of investigation, releasing 
authorities should ensure, when reasonable, hand 
delivery of the report by someone who can discuss it 
with the family. Normally, the Casualty Assistance 
Calls Officer(s) would make the delivery, but there 
may be reasons (technical subject-matter, personal 
friendships, etc.) for another individual to be assigned 
this task. 

0234 WHEN INVESTIGATIONS OE DEATH 
CASES ARE REQUIRED 

A preliminary inquiry (see section 0203) shall, as in 
any other circumstance potentially warranting an 


2-33 








investigation, be conducted into the death of a member 
of the naval service or into the death of a civilian 
aboard a place under naval control. At the conclusion 
of the preliminary inquiry, the CA must determine 
which of the options listed in section 0204 will be 
exercised, and report that decision to the next superior 
in the chain-of-command (see section 0203h(2)). 
Nonnally, a command investigation, or a limited 
investigation, will be appropriate to inquire into a 
death case that warrants investigation under the below 
guidelines. A court or board of inquiry is appropriate 
in some cases, as discussed below. In deciding on the 
type (and necessity) of investigation, the convening 
authority shall consider the following: 

a. No investigation required . An investigation under 
this Manual will normally not be conducted if the 
preliminary inquiry shows that the death: 

(1) was the result of a previously known medical 
condition and the adequacy of military medical care is 
not reasonably in issue; or 

(2) was the result of enemy action (but see 
subsection b(4) below). 

b. Investigation required . An investigation under this 
Manual shall be conducted if the preliminary inquiry 
shows: 

(1) the case involves civilian or other non-naval 
personnel found dead aboard an activity under military 
control, where the death was apparently caused by 
suicide or other unusual circumstances (see 
SECNAVINST 5520.3 series and section 0203(c)); 

(2) the circumstances surrormding the death place 
the adequacy of military medical care reasonably at 
issue; 

(3) the case involves the death of a military 
member and a probable nexus exists to naval service, 
except where the death is as a result of enemy action 
(s££ sections b(4) and (c) below); or 

(4) it is unclear if enemy action caused the death, 
such as in possible "friendly-fire" incidents. 

c. Limited Investigation Required . If the preliminary 
inquiry shows that the death of a service member 
occurred at a location in the United States but not 


under military control, while the member was off-duty, 
and the circumstances of the death had no discemable 
nexus to the naval service, the command shall obtain 
the results of the investigation of the incident by 
civilian authorities and maintain the results as an 
internal report. The command shall document, in 
writing, the reasons for making the determination to 
conduct a limited investigation, attaching the 
enumerated reasons to the internal report. Completion 
of these actions shall follow the time constraints noted 
for the processing of command investigations and will 
constitute final action on the report. 

0235 AUTOPSIES 

a. General . When the death of a member of the 
uniformed services on active duty, or active duty for 
training, occurs under any of the circumstances set 
forth in chapter 17, Manual of the Medical 
Department, and when an autopsy is authorized by the 
commanding officer, and in other cases in which 
authorization from proper authority has been obtained, 
the preliminary inquiry officer shall provide the 
medical officer designated to conduct the autopsy with 
a preliminary report of the circumstances surrounding 
the death. In those cases in which authorization for 
autopsy has been granted by other than the 
commanding officer, the medical officer shall be 
responsible for advising command authority that such 
authorization has been granted in order to facilitate the 
preliminary investigation and report thereof to the 
medical officer conducting the autopsy. Upon 
completion of the autopsy, the medical officer 
conducting the autopsy shall provide the preliminary 
inquiry officer, or investigating officer, a copy of the 
preliminary autopsy findings as to the cause of death 
and, when completed, a copy of the final protocol. 
The medical officer conducting the autopsy should be 
provided with a copy of the final investigative report, 
if an investigation is convened. (DODDIR 6010.16 of 
March 1988 and NAVMED P5065 refer to issues of 
authorization of autopsies.) 

b. Unavailability of documents . Notwithstanding the 
guidance above, completion of a death investigation 
and its forwarding will not be delayed to await final 
autopsy reports, death certificates, or similar 
documents unless their inclusion is absolutely essential 
to the completion of the investigative report. The 
unavailability of such documents should be noted and 
the investigation completed and forwarded. 


2-34 








Documents subsequently obtained shall be forwarded 
by separate correspondenee via the review ehain, with 
appropriate reference to the report of 
investigation/forwarding endorsement. 

0236 DETERMINATIONS CONCERNING 
LINE OF DUTY / MISCONDUCT IN 
ACTIVE DUTY DEATH CASES 

a. Modifications to SBP programs . Section 642, 
National Defense Authorization Act of Fiscal Year 
2002 (NDAA 2002), Public Law 107-107, modified 
the SBP program in two important ways: First, SBP 
benefits are payable to a qualified survivor when an 
active duty servicemember dies in the line of duty, 
regardless of whether the servieemember was 
retirement eligible at the time of death. Second, there 
is an increase in the ealculation of the SBP annuity 
payable to a qualified survivor if the aetive duty 
servicemember dies in the line of duty. 

b. Calculations of SBP annuities . SBP annuities 
are calculated as a pereentage of the SBP base 
amount. Normally, the annuity is 55 percent of the 
SBP base amount. When an aetive duty death is 
detennined to be in the line of duty, the SBP base 
amount is equal to retired pay as if the 
servicemember retired with total (100 percent) 
disability, whieh in turn is equal to 75 percent of the 
member’s base pay (final or high-36 pay). Thus, for 
an active duty death detennined to be in the line of 
duty, the calculation of the SBP annuity payable to a 
qualified survivor normally will be 55 percent of 75 
percent of the deceased servicemember’s final or 
high-36 pay. 

c. SBP modifieations in line of duty detenninations . 

Seetion 642, NDAA 2002 only affeets the SBP 
eligibility determination or annuity calculation in 
cases determined to be in the line of duty. For eases 
detennined to be not in the line of duty, SBP 
eligibility and annuity caleulations remain in effeet 
under the rules that existed prior to Public Law 107- 
107. That is, if the servicemember was not 
retirement eligible at the time of death, then SBP is 
inapplicable. If the servicemember was retirement 
eligible at the time of death, a SBP annuity will be 
paid to a qualified survivor, but will not be eomputed 
on the basis of a nominal total disability retirement. 
Rather, the SBP base amount will be computed on 


the retirement for service rules that would have 
applied if the servieemember had retired at time of 
death. 

d. Process . Line of duty determinations are now 
required in all aetive duty death eases, retroaetive to 
10 Sep 01. Line of duty detenninations in death 
cases are made as follows: 

(1) Each active duty death shall be subjeet 
to, at a minimum, a preliminary inquiry in 
accordanee with section 0203 of the Manual of the 
Judge Advocate General (JAGMAN). The 
preliminary inquiry shall be conducted by the 
command to which the deeeased member was 
attached (or the gaining command for 
servicemembers who die in transit). The command 
conducting the preliminary inquiry, or higher 
authority, shall decide whether the preliminary 
inquiry is sufficient to base a line of duty 
detennination or whether there is need for an 
investigation. In many death cases, a preliminary 
inquiry consisting of a basic letter report attached to a 
medieal record entry or accident report will be 
sufficient to base a line of duty determination. The 
permissible findings are (1) in the line of duty and 
not due to the member’s own misconduet (2) not in 
the line of duty and not due to the member’s own 
miseonduct or (3) not in line of duty and due to the 
member’s own misconduct. 

(2) If the eommand completing the 
preliminary inquiry or investigation is not a general 
court-martial convening authority (GCMCA) with an 
assigned staff judge advocate (SJA), the command 
will forward the inquiry/investigation to the first 
GCMCA in its chain of command with an assigned 
SJA. The command will include a written 
recommendation concerning the line of duty 
detennination. 

(3) The GCMCA with an assigned SJA is 
the eognizant official for making the formal LOD 
detennination, subject to a limited review process 
described below. The GCMCA shall make the line 
of duty determination in aceordance with the 
guidanee in sections 0222-0227 of the JAGMAN. 

(4) Adverse determinations . Before making 
a determination that an active duty death was not in 
the line of duty, the GCMCA or his or her SJA shall 
afford a known potential SBP beneficiary the 


2-35 







opportunity to review the report of investigation and 
provide relevant information to the GCMCA. A 
“known potential SBP benefieiary” is the person who 
would otherwise be the reeognized qualified survivor 
if a favorable determination were made. The 
respeetive Navy and Marine Corps program 
managers will provide assistanee for Navy and 
Marine Corps commands in identifying potential SBP 
beneficiaries. Ordinarily, the known potential SBP 
beneficiary shall be provided 30 calendar days from 
receipt of the report of investigation to provide 
information to the GCMCA. In an adverse 
detennination case in which there is no known 
potential SBP beneficiary, the GCMCA shall make 
the line of duty determination following a review of 
the investigation by the SJA. 

(5) The LOD determination shall be made 
in writing by the GCMCA and forwarded to 
Commander, Navy Personnel Command, (PERS-62), 
5720 Integrity Drive, Millington, TN 38055-6220 or 
Headquarters, U.S. Marine Corps, Manpower and 
Reserve Affairs (MMSR-6), 3280 Russell Road, 
Quantico,VA 22134-5103. 

(6) For adverse determination cases, the 
GCMCA shall forward a complete copy of the 
investigation to PERS-62 or MMSR-6, where it will 
be reviewed by CNP or DC(M&RA). CNP or 
DC(M&RA) shall review the LOD determination and 
underlying investigation. The detennination of the 
GCMCA shall be sustained unless CNP or 
DC(M&RA) determine that a substantial error 
occurred that could materially affect the 
detennination. In such cases, CNP or DC(M&RA) 
can make a different determination or return the case 
to the GCMCA for further investigation. The review 
and detennination of the CNP or DC(M&RA) shall 
be administratively final. 

(7) The Navy point of contact (POC) for 
SBP matters can be reached at (800) 255-8950 x 
44304, COMM (901) 874-4304, DSN 882-4304, or 
FAX (901) 874-2611. The USMC POC can be 
reached at (800) 336-4649, COMM (703) 784-9304/5, 
or FAX (703) 784-9834. 

0237 MAJOR INCIDENTS AND OTHER 

CASES INVOLVING DEATH WHERE A 
COURT OF INQUIRY MAY BE 
APPROPRIATE 


a. Death cases within the definition of major 
incident . For death cases that fall within the definition 
of major incident in appendix A-2-a, a court or board 
of inquiry should be convened. Additionally, and 
notwithstanding that a death case may not qualily as a 
major incident, a convening authority may conclude 
that a board or court of inquiry is the appropriate 
forum for conducting the investigation. 

b. Deceased servicemember contributing cause to 
incident . If, at any time during the course of a court or 
board of inquiry, it appears to the investigation that the 
intentional acts of a deceased servicemember were a 
contributing cause to the incident, it will notify the 
convening authority. The convening authority will 
then notify the Judge Advocate General of the 
preliminary findings regarding the deceased member. 
The Judge Advocate General will advise the convening 
authority what additional measures, if any, are 
necessary to ensure a fair hearing regarding the 
deceased member's actions. 

0238 INDEPENDENT REVIEW 

a. General . To enhance the investigation process, 
prior to taking action on an investigative report which 
calls into question the propriety of a deceased 
individual's conduct (including all apparent suicide 
cases), the CA may cause the report to be reviewed by 
an individual not previously connected with the 
investigation process and outside the CA's immediate 
chain-of-command. 

b. Qualifications of reviewer . The individual 
selected pursuant to this section to review the 
preliminary report should, to the extent feasible, 
possess such training, experience, and background that 
he or she can critically analyze the salient 
circumstances surrounding the death as documented in 
the report. For example, if a pilofs death occurred as 
the result of an aircraft accident, then the individual 
selected should be a pilot. If, by way of further 
example, an enlisted Marine's death occurred as the 
result of an apparent suicide, then the individual 
selected should be a senior noncommissioned officer 
or eompany commander. In all cases, the individual 
selected should have no official or personal interest in 
the outeome of the investigation. 

c. Duties of reviewer . The individual seleeted to 


2-36 









review the investigative report shall not act as the 
deceased's representative, but should critically analyze 
the investigative report from the perspective of the 
deceased, tempered by the reviewer's own experience, 
training, and education. If, after conducting the 
review, the reviewer believes comment on the 
thoroughness of the investigation or the accuracy of its 
findings is warranted, then such comments shall be 
provided in writing to the CA. The review shall be 
completed within 10 working days of delivery of the 
report to the reviewer. 

d. Action . The CA shall consider such coiuments as 
the reviewer may make and take such action as the CA 
deems warranted. The reviewer's comments, if any, 
shall be appended to the investigative report. 

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. 


b. Reports available to family of deceased family 

members . Per 10 U.S.C. § 113 note (Pub. L. 102-484, 
Div. A, Title X §1072, 23 Oct 92; 106 Stat. 2508), 
fatality reports and records pertaining to any member 
of the Anned Forces who dies in the line of duty shall, 
generally, be made available to family members of the 
service member. For this reason, discretion must be 
exercised in enclosing graphic photographs since 
doing so has significant potential for shocking the 
sensitivities of relatives and others to whom the 
investigation may be released. Such materials should 
be enclosed separately in an envelope marked: 
"CAUTION. THIS ENVELOPE CONTAINS 
GRAPHIC PHOTOGRAPHS. VIEWER 

DISCRETION WARRANTED." 


PART G - INVESTIGATIONS OE SPECIEIC TYPES OF INCIDENTS 


0241 AIRCRAET ACCIDENTS 

a. General . Aircraft accidents are investigated by 
one or more investigative bodies under existing 
instructions and legal requirements. 

(1) Mishap investigation reports . For the sole 
purpose of safety and accident prevention, the Chief of 
Naval Operations has issued special instructions for the 


conduct, analysis, and review of investigations of 
aircraft mishaps in OPNAVINST 3750.6 series. These 
investigations are known as "aircraft accident safety 
investigations" and are conducted by mishap 
investigation boards. The results of those 
investigations are documented in Mishap Investigation 
Reports. 

(2) .lAGMAN investigations . When an aircraft 


2-37 









mishap results in death or serious injury, extensive 
damage to Government property, or the possibility of a 
claim exists for, or against, the Government, a 
JAGMAN investigation shall be ordered to determine 
the cause and responsibility for the mishap, nature and 
extent of any injuries, description of all damage to 
property, and any attendant circumstances. While in 
most cases a claim for, or against, the Government 
may reasonably be anticipated as a result of an aircraft 
mishap, a command investigation will normally be 
used because of the command interest in accountability 
for incidents which result in death or substantial 
property damage. In all investigations concerning 
potential claims for or against the Government, a copy 
of the investigation shall be forwarded to JAG via the 
servicing legal service office upon completion of the 
convening authority's endorsement. These JAGMAN 
investigations are in addition to, and separate from, the 
aircraft accident safety investigations conducted under 
the authority of OPNAVINST 3750.6 series. 

(3) Combat losses or damage . A JAGMAN 
investigation is not required for aircraft mishaps 
incident to direct enemy action. An aircraft mishap is 
incident to direct enemy action when it is due to hostile 
action or an unknown cause in a hostile area. 
Notwithstanding, a JAGMAN investigation is required 
when an aircraft accident or other aircraft mishap 
occurs in the course of a combat operation but not 
under hostile circumstances, such as an aircraft crash 
while taking off, or returning to, an airfield or aircraft 
carrier. JAGMAN investigations are not precluded 
when deemed appropriate by operational or 
administrative commanders. Commanders may 
convene investigations to gather, evaluate, or verify the 
facts of a combat engagement when enemy action has 
resulted in the loss or damage to naval aircraft, or to 
determine whether combat losses were sustained by 
"friendly fire." 

(4) This subsection relates to JAGMAN 
investigations only and does not affect any other 
reporting requirement, such as casualty and damage 
reports required under article 0831, U.S. Navy 
Regulations, 1990 . 

b. Relationship between .JAGMAN investigations 
and aircraft accident safety investigations 

(1) A JAGMAN investigation of an aircraft 
accident or mishap is a collateral investigation, as 
referred to in the joint directive issued under 
OPNAVINST 3750.16 series, which implements 
section 702 of the Federal Aviation Act of 1958, 49 


U.S.C. § 1442. OPNAVINST 3750.16 series provides 
specific direction concerning coordination of 
investigations of aircraft accidents between military 
authorities and the National Transportation Safety 
Board (NTSB) and the Federal Aviation 
Administration (FAA). Due to the separate purposes 
and procedures of JAGMAN investigations, military 
mishap investigations, and FAA or NTSB 
investigations, there are specific limitations and 
restrictions regarding the integration of these 
investigations, use of evidence obtained (including 
witness statements), and the use and disclosure of the 
respective reports. OPNAVINST 3750.16 series, 
OPNAVINST 3750.6 series, and Marine Corps Order 
(MCO) 3750.1 provide detailed guidance regarding the 
restrictions on the use of these investigations and the 
permissible extent of integration between JAGMAN 
investigations and aircraft mishap investigations. The 
relationship between the JAGMAN investigation and 
aircraft safety investigations should be thoroughly 
understood by all persons involved with investigating 
any aircraft accident or mishap. 

(2) Statements gathered in the course of aircraft 
accident safety investigations are privileged. This 
means that when the source of that information has 
been given a promise of confidentiality, that statement, 
made before the promising safety board, cannot be 
used for any purpose other than accident prevention. 
OPNAVINST 3750.6 series also gives a promise of 
confidentiality to those conducting the aircraft accident 
safety investigation. This means that their opinions, 
analyses, and conclusions cannot be used for purposes 
other than accident prevention. In conducting the 
JAGMAN investigation, care shall be exercised to 
respect the privileged character of the aircraft accident 
safety investigation. No witness shall be questioned 
regarding participation in an aircraft safety 
investigation. 

(3) Although membership on an aircraft safety 
investigation board does not bar an individual from 
being a witness for a JAGMAN investigation of the 
same incident, such dual participation is undesirable 
and should be avoided due to the possibility of 
undermining the promise of confidentiality crucial to 
the conduct of safety investigations. 

(4) Investigating officers of the aircraft safety 
investigation and JAGMAN investigation shall have 
access to all real evidence and have separate 
opportunities to question and obtain statements from 
all witnesses. JAGMAN investigating officers shall 
not sit in on interviews conducted by the aircraft 
accident safety investigation. 


2-38 








(5) If a possibility exists that witnesses will testify 
before both investigative bodies, the JAGMAN 
investigating offieer(s) shall explain to such witnesses 
the reasons for the apparent duplication of effort. This 
is particularly important with non-military witnesses. 
The explanation shall cover - 

(a) the different objectives of the two 
investigations; 

(b) the reasons why procedures vary; 

(c) the need to preserve the privileged nature of 
the aircraft accident safety investigation; and 

(d) the fact that since neither command nor 
administrative action may alter the privileged character 
of statements provided to the aircraft accident safety 
investigation, such statements will not be available to 
the JAGMAN investigation from any official source. 

c. Class A aircraft accident JAGMAN investigations 

(1) Designation of Class A Aircraft Accidents. As 
soon as practical, but in no case more than 60 days 
after the occurrence of an aircraft accident involving 
an aircraft of the Department of the Navy, the authority 
responsible for convening the investigation under this 
Manual shall determine whether the mishap is a Class 
A accident. (See Appendix A-2-a for the definition of 
"Class A aircraft accident.") If the accident meets the 
criteria for a Class A aircraft accident, the convening 
order for the investigation shall contain the following: 
"This [Command Investigation] [Litigation-Report 
Investigation] [Board of Inquiry] [Court of Inquiry] is 
convened to investigate the circumstances surrounding 
a Class A aircraft accident in compliance with 10 
U.S.C. 2255." 

(2) Member Qualifications for Class A Aircraft 
Accident JAGMAN Investigations. Federal law 
establishes specific qualifications for members 
conducting Class A aircraft accident investigations. 
These qualifications apply to any Class A aircraft 
accident investigation under sections 0208, 0209, or 
0210 of this Manual, convened on or after March 24, 
1997. See 10 U.S.C. § 2255 (1996). 

(a) Multiple Member Investigations. A 
multiple member Class A aircraft accident JAGMAN 
investigation shall have: 

1. A majority of its members selected from 


units other than the mishap unit or a unit subordinate to 
the mishap unit, as defined in Appendix A-2-a; and 

2. at least one member who is a member of 
the armed forces or an officer or employee of the 
Department of Defense who possesses knowledge and 
expertise relevant to aircraft accident investigations, 
for example, a graduate of a Naval Aviation Safety 
Officer/Command course, or previous service on an 
aviation mishap safety or aircraft accident JAGMAN 
investigation, or previous assignment as a squadron 
Aviation Safety Officer. 

(b) Single Member Investigations. A single 
member Class A aircraft accident JAGMAN 
investigation shall be: 

1. selected from a unit other than the mishap 
unit or a unit subordinate to the mishap unit, as defined 
in Appendix A-2-a; and 

2. Directed to consult with a member of the 
anned forces or an officer or employee of the 
Department of Defense who possesses knowledge and 
expertise relevant to aircraft mishap investigations, for 
example, a graduate of a Naval Aviation Safety 
Officer/Command course, or previous service on an 
aviation mishap safety or aircraft accident JAGMAN 
investigation, or previous assignment as a squadron 
Aviation Safety Officer. 

(c) Exceptions to Statutory Qualifications 

1. Waiver Criteria. The Secretary of the 
Navy may waive the statutory qualifications set forth 
in sections 0242c(2)(a) and (b), above, if the Secretary 
determines: 

a. It is not practicable to meet the 
requirement because of 

(1) the remote location of the 

aircraft mishap; 

(2) an urgent need to promptly 
begin the investigation; or 

(3.) a lack of available personnel 
outside of the mishap unit who have adequate 
knowledge and expertise regarding the type of aircraft 
involved in the mishap; and 

h. The objectivity and independence 
of the aircraft mishap investigation will not be 
compromised. 


2-39 



2. Procedure for Obtaining a Waiver. 
Requests for a waiver shall be addressed to the 
Secretary of the Navy, via the chain of command, and 
contain a detailed explanation of the particular criteria 
listed in subsection (a) justifying the need for a waiver. 

2. Congressional Notification. The Seeretary 
must notify Congress of a waiver granted under this 
section and the reasons therefore. 

d. Required facts and opinions . The scope of the 
investigation funetion varies with the nature and 
circumstances of the particular incident. The report of 
the investigation should include, but not be limited to, 
data relevant to the purpose of the investigation on the 
following matters: 

(1) Identity of the pilot(s), co-pilot(s)/naval flight 
offieer(s) (NFO), air crew and any passengers, 
including the background, history, training, and 
experience of the pilot, co-pilot/NFO and air crew and 
their familiarity with the type of aircraft involved. 

(2) The military or civilian status of all personnel 
aboard, e.g.. Regular, Reserve, or retired; aetive duty, 
inactive duty, inactive duty training; Temporary 
Additional Duty (TAD), Temporary Duty (TDY), 
leave, liberty, and so forth. 

(3) Type, model, and bureau number of the aircraft 
involved. 

(4) Identifieation of the squadron, detaehment, or 
unit authorizing the flight and the official who 
authorized the flight. 

(5) If a privately-owned or rented aircraft was 
involved, identify the owner, authorization for the 
flight, existence of private insurance, and extent of 
coverage. 

(6) The identity of all individuals who were killed, 
injured, or who suffered property damage as a result of 
the mishap, including name, age, address (home and 
work), telephone number, oeeupation, and a eomplete 
deseription of how their injuries occurred. (See Part F 
for speeial considerations in death cases.) 

(7) Soeiological, psychological, and human factors 
related to the accident, including potential stress 
factors, fatigue, use of medication, or intoxication. 

(8) Type, duration, and purpose of the flight, 


briefing of the pilot, and other pertinent infonnation 
regarding the particular flight, including the use of 
night vision goggles or other mission- specific factors 
relevant to aircraft or air crew equipment or 
performance. 

(9) Weather conditions throughout the flight. 

(10) Preflight history of the aircraft, compliance or 
noncompliance with pertinent technical directives, 
including flight hours since the last overhaul, 
discrepancies noted on recent "yellow sheets" 
(OPNAV Form 3760/2, OPNAVINST 3710.7 series), 
VIDS/MAF forms (OPNAV 4790/60, OPNAVINST 
4790.2 series), and flight hours since the last 
intennediate check. 

(11) Description of flight path and maneuvers of the 
aircraft during flight, including manner of descent and 
impact. 

(12) Positions of external control surfaces, landing 
gear, canopy, and other relevant parts of the aircraft, 
during the flight. 

(13) Presence, condition, and use of safety, 
communication, escape, and survival equipment. 

(14) Post-accident assessment of the aircraft and 
detailed description of all damage to the aircraft, 
including wreckage diagrams, disassembly and 
inspection reports, wreckage photographs, and data on 
engine, fuselage, and control surfaces. 

(15) Assessment of the scene of the accident 
including its precise location, a description of the 
terrain, and a complete listing and cost of damaged or 
destroyed Government and non-Govemment property. 

(16) Description of rescue operations employed, 
their effectiveness, and any difficulties encountered. 

(17) Instructions in effect at the time of the accident 
concerning procedures relating to the particular flight 
(including applicable local and regional flight rules 
governing the flight and copies of air charts in effect 
and in use). 

(18) Performance data on the aircraft in question 
under prevailing wind, weather, and temperature. 

(19) In the case of deaths caused by the accident, the 
precise medical cause of death (substantiated by 
medical records, autopsy, and death certificate). 


2-40 



(20) Cause, nature, and extent of any injuries 
suffered as a result of the aecident as substantiated by 
medical records, including line of duty/misconduct 
determinations for injuries to naval personnel, if 
required. 

(21) Involvement of other aircraft, if any. 

(22) Roles of supervisory, support, and controlling 
personnel. 

(23) When the evidence concerning the accident is 
sufficient to do so, an opinion or opinions as to the 
cause or causes of the accident. 

(24) When the evidence is not sufficient to form an 
opinion or opinions as to the cause or causes of the 
accident, a description of those factors, if any, which in 
the opinion of the investigator(s) substantially 
contributed to the accident. 

0242 MOTOR VEHICLE ACCIDENTS 

a. General . All but the most minor of accidents 
involving Government vehicles and personally-owned 
vehicles must be investigated. Accidents involving 
$5,000 or less of property damage or minor personnel 
injuries can, however, be adequately documented by 
completion of Standard Form 91 (Police Accident 
Form) alone. More serious accidents may be 
investigated by either a command investigation or by a 
litigation-report investigation if a claim is expected for 
or against the Government. (See JAGINST 5890.1 
series for further information on claims.) Chapter 6 of 
OPNAVINST 5102.1 series provides reporting 
procedures under the Navy's Mishap Investigation and 
Reporting System. That system may require an 
additional investigation. 

b. Basic _ investigating _ requirements . When 

conducting an investigation into a motor vehicle 
accident, physically observe the damage to property 
and survey the accident scene whenever practical. 
Include photographs, if possible. Document injuries 
and damage by attaching the best available evidence 
including relevant medical records and actual bills or 
receipts. A copy of any investigation concerning 
potential claims for or against the Government must be 
forwarded to the cognizant legal service office upon 
completion of the CA's endorsement. 


(1) Vehicle(s) completely identified, including 
vehicle identification number, license plate number, 
model, year, and color. 

(2) Identity of driver(s) and owner(s), including 
name, age, addresses (home and work), and telephone 
numbers. For military members, indicate their military 
status at the time of the accident (e.g., active duty, 
TAD, leave, liberty, etc.), their grade/rank, and the 
name, address, location and Unit Identification Code 
(UIC) of their unit. If an individual died or is 
incapacitated as a result of the accident, provide similar 
identifying information for the next-of-kin or legal 
representative. See section 0252 regarding special 
findings of fact required when an accident involves 
reservists coming to or from periods of active duty or 
training. If a Government vehicle was involved, 
identify the unit to which the vehicle was assigned, the 
individual at that unit who authorized use of the 
vehicle, and its authorized purpose. 

(3) Time of the accident, light and weather 
conditions, and their effect on driving conditions. 

(4) The location of the accident (e.g., highway 
number, direction of travel, milepost number, street 
name, intersection), road and terrain factors, including 
road characteristics, obstructions to the driver's vision, 
traffic signals, and signs. 

(5) Estimated speed of vehicle(s) involved as 
evidenced by witnesses, skid marks, condition of 
roads, and damages to the vehicles or other property. 

(6) Actions of other vehicles involved in the 
accident, including any part played by them in creating 
the conditions that resulted in the accident. 

(7) Traffic conditions at the scene and their effect 
on the accident. 

(8) Traffic laws and regulations in force pertinent 
to the accident, including traffic safety devices, signs, 
and markings (e.g., school zone, no passing zone, 
railroad crossing, reduced speed limit), and any 
requirement to use safety devices installed in the 
vehicles (e.g., seat belts, child carriers). A copy of the 
statute, ordinance, or regulation should be made an 
enclosure. Consult with the cognizant legal service 
office for assistance. 


c. Required facts and opinions . The following facts 
and opinions shall be included in the report; 


2-41 


(9) Mechanical condition of the vehicles. If a 





mechanical defect or condition (e.g., faulty or worn 
brakes/tires) is determined to have contributed to the 
accident, include the relevant maintenance history of 
the vehicle. 

(10) Physical condition of the driver, or drivers, 
including intoxication, fatigue, use of medications or 
drugs, or other medical condition. The factual portion 
of the report should include such matters as the number 
of hours of sleep prior to the accident, the number of 
hours worked, the amount of alcohol consumed, results 
of any blood alcohol or other test for intoxication, any 
medications or drugs taken prior to the accident and 
the time elapsed between their last use and the 
accident, and any unusual stress or abnormal condition 
that might have affected the driver's alertness. The 
opinion section should address any reasonable 
inferences that may be drawn from these facts relevant 
to the cause of the accident. 

(11) Driving experience of the driver or drivers, 
both generally and in the type of vehicles being driven, 
including the state which licensed the driver(s) and any 
previous loss of driving privileges and driving-related 
convictions (e.g., reckless driving, drunk driving, 
driving without insurance). 

(12) Safety devices installed and whether they were 
being used at the time of the accident. 

(13) Conduct of passenger(s). Opinions may 
include reasonable inferences on the effect of any 
passenger's conduct on the driver(s). 

(14) Facts and opinions relevant to knowledge by 
any passenger of any impairment of the driver at the 
time the passenger entered or had a reasonable 
opportunity to leave the vehicle. 

(15) Damage to vehicles fully described (including 
photos, if available) and repair costs. 

(16) Damage to other property (including photos, if 
available) and repair costs. 

(17) Nature and extent of personal injuries and 
medical costs, documented by relevant medical 
records, bills, and receipts. If death resulted from the 
accident, indicate the cause of death and include a 
copy of the death certificate and any autopsy reports as 
enclosures. Include the facts and opinions required 
under section 0250e(5), Claims For Or Against the 
Government, relevant to personal injuries. 


(18) Name, age, address, and telephone number of 
any witnesses to the accident, a description of their 
location in relation to the accident scene, their ability to 
observe from that location, and what they saw. 

(19) The name, address, and telephone number of 
any law enforcement official who investigated the 
accident. A copy of any law enforcement or police 
report made concerning the accident should be 
included as an enclosure and the custodian of the 
original report should be indicated. 

(20) Any civilian or military criminal charges 
brought as a result of the accident and the ultimate 
resolution of those charges. Do not delay the report of 
investigation solely to document the outcome of 
criminal charges. The CA should forward that 
information to subsequent endorsers and to the copy-to 
addressees as it becomes available. 

(21) If a private vehicle is involved in the accident, 
the name, address, policy number, and telephone 
number of any insurer of the vehicle, including the 
amount and type of insurance carried and those 
categories of drivers who are covered by the policy. 

(22) An opinion regarding the probable cause of 
the accident. If the evidence is insufficient to establish 
probable cause, those factors which in the opinion of 
the investigating officer contributed to the accident 
should be listed. 

(23) An opinion regarding the contributory or 
comparative negligence of any party, if any. Consult 
the cognizant legal service office or SJA for guidance 
pertaining to the relevant standard and its application. 

(24) If not included in the facts relevant to military 
or criminal charges filed, an opinion concerning any 
laws, articles of the UCMJ, or regulations violated. 

(25) Whether or not the vehicles are economically 
repairable, and if not, their salvage value. 

(26) Whether or not the driver (in case of 
Government vehicle) was acting within the scope of 
employment pursuant to state law, and whether injuries 
sustained by military members were incurred in the 
line of duty or as a result of misconduct. (See Part E.) 

d. Motor vehicle accidents involving a Government 
vehicle almost always involve the potential for claims 
for or against the Government. In such cases, refer to 
section 0250(e) and include all the facts and opinions 


2-42 


required by that section, 
e. Recommendations 

(1) Whether or not disciplinary action should be 

taken against any of the parties involved. If 
disciplinary action has been taken, indicate the result, 
documented by enclosure. Nonpunitive letters of 
caution are private in nature and the issuance of such 
letters should not be addressed in the investigation, nor 
should copies of such letters be made enclosures to the 
investigation. If disciplinary action is recommended, 
but has not been initiated, include as an enclosure a 
charge sheet with draft specifications. Draft 

specifications should not be preferred, however, since 

doing so starts the ".speedy trial clock ." Consult with 
the cognizant legal service office or SJA. 

(2) If Government property has been damaged, a 
recommendation as to the disposition of the property 
as follows: 

(a) Repaired and returned to service. 

(b) Dropped from the records. 

(3) Whether the Government should initiate a claim 
to recover losses suffered by the Government due to 
damage to property or injuries to personnel, if any. 

(4) Pertinent recommendations on matters of safety 
procedures. 

0243 ACCIDENTS ABOARD SHIPS OR 
SUBMARINES (GENERALLY) 

a. General 

(1) Command investigations are normally 
sufficient to document most shipboard accidents that 
require more than a preliminary inquiry. Major 
incidents involving greater losses of life, personal 
injuries, or property damage will normally be 
investigated by a court of inquiry. Accidents aboard 
ships, particularly those involving damage caused by 
other ships, watercraft, or cargo handling equipment, 
or injuries to dock workers, shipyard employees, 
longshoremen, or ship's visitors are likely to involve 
Admiralty Law aspects and should be the subject of a 
litigation-report investigation. Consult Chapter XII 
and the cognizant legal service office or SJA. 

(2) Mishap investigation reports . For the sole 
purpose of safety and mishap prevention, the Chief of 
Naval Operations has issued special instructions in 


Chapter A6 of OPNAVINST 5100.19 series for the 
conduct, analysis, and review of investigations of 
mishaps that occur aboard ships or submarines. These 
investigations are conducted by mishap investigation 
boards appointed for that purpose and the results are 
documented in mishap investigation reports (MIRs). 

(3) JAGMAN investigations . When an afloat 
mishap results in death or serious injury, extensive 
damage to Government property, or the possibility 
exists that a claim may be filed by or against the 
Government, a JAGMAN investigation shall be 
appointed to investigate and determine the cause and 
responsibility for the mishap, nature and extent of any 
injuries, description of all damage to property, and any 
and all attendant circumstances. These JAGMAN 
investigations are in addition to, and separate from, the 
mishap investigation boards appointed under the 
provisions of OPNAVINST 5100.19 series. 

(4) Combat losses or damage . A JAGMAN 
investigation is not required for damages to property or 
injuries to personnel that are incident to direct enemy 
action. Damage to property or injuries to personnel are 
incident to enemy action when the mishap results from 
hostile action or an unknown cause in a hostile area. 
Nonetheless, a JAGMAN investigation is required 
when the damage or injury occurs in the course of 
combat operations which are not subject to hostile 
circumstances, e.g., a collision at sea which occurs 
when the vessels involved are not engaged in action 
with enemy forces. Commanders or commanding 
officers may, in their discretion, convene JAGMAN 
investigations to gather, evaluate, or verify the facts of 
a combat engagement when enemy action has resulted 
in the loss or damage to naval ships or submarines, or 
to determine whether combat losses were sustained by 
"friendly fire." This subsection relates only to 
JAGMAN investigations and does not affect any other 
reporting requirements, such as reports required under 
article 0831, U.S. Navy Regulations, 1990 . 

b. Relationship between .lAGMAN investigations 
and safety investigations 

(1) The JAGMAN investigation of an afloat 
mishap is a collateral investigation and is conducted 
separately and independently from the afloat safety 
investigation. Due to the separate purposes and 
procedures of each of these investigations, there are 
specific limitations and restrictions regarding the 
integration of JAGMAN investigations with other 
safety investigations, use of the evidence gathered 
(including witness statements) by these other 


2-43 












investigations, and use and diselosure of those reports. 
OPNAVINST 5100.19 series provides detailed 
guidanee regarding restrictions on the use of these 
investigations and the pennissible extent of integration 
between the JAGMAN investigation and safety 
investigations. The relationship between a JAGMAN 
investigation and a safety investigation should be 
thoroughly understood by all persons involved in 
investigating any afloat accident or mishap 

(2) Statements gathered in the course of an afloat 
safety investigation are privileged, meaning that when 
the source of that information has been given a 
promise of confidentiality, that statement, made before 
the mishap investigation board (MIB) which made the 
promise, cannot be used for any purpose other than 
mishap prevention. OPNAVINST 5100.19 series also 
gives a promise of confidentiality to those individuals 
appointed to conduct the afloat safety investigation, 
meaning that their opinions, analyses, and conclusions 
cannot be used for purposes other than mishap 
prevention. In conducting a JAGMAN investigation, 
care shall be exercised to respect the privileged 
character of the afloat safety investigation. No witness 
shall be questioned as to participation in an afloat 
safety investigation. 

(3) Although membership on an afloat mishap 
investigation board does not bar an individual from 
being a witness for a JAGMAN investigation of the 
same incident, participation of mishap board members 
as witnesses for the JAGMAN investigation should be 
avoided due to the possibility of undermining the 
promise of confidentiality crucial to the conduct of 
safety investigations. 

(4) Members of a mishap investigation board and 
JAGMAN investigating officer(s) shall have access to 
all real evidence and have separate opportunities to 
question and obtain statements from all witnesses. 
JAGMAN investigating officers shall not sit in on 
interviews conducted by the mishap investigation 
board. 

(5) If a possibility exists that a witness or witnesses 
will provide information to the mishap investigation 
board and to the JAGMAN investigating officer(s), the 
JAGMAN investigating officer(s) shall explain to such 
witnesses why the apparent duplication of effort is 
necessary. The explanation shall cover: 

(a) the different objectives of the two 
investigations; 


(b) the reasons why the procedures for each 
investigation vary; 

(c) the necessity for respecting and preserving 
the privileged character of the mishap investigating 
board; and 

(d) the fact that statements obtained by the 
mishap investigation board will not be available to the 
JAGMAN investigating officer(s) from any official 
source because neither command nor administrative 
action may alter the privileged character of the 
statements provided to the mishap investigation board. 

0244 EXPLOSIONS 

a. Required facts and opinions . Criminal law 
enforcement investigations are required of any fire or 
explosion of unknown origin affecting DON property 
or property under Navy/Marine Corps control. Any 
such investigation shall be coordinated with NCIS 
(section 0202d). An investigation involving an 
explosion should document the type of explosion, the 
cause of the explosion, the extent and nature of 
personnel injuries, the nature and extent of loss or 
damage to property, the estimated dollar amount of the 
loss or damage of the property, the estimated cost of 
medical treatment of non-military persormel injured by 
the explosion, the person(s) (if any) responsible for the 
explosion, and all other pertinent facts and 
circumstances. Command investigations are normally 
used to document nonlethal explosions, or where 
property damage is minor. If the explosion caused 
great loss of life or property damage associated with a 
major incident, a court of inquiry will normally be 
used. 

(1) The following information shall be included in 
the report: 

(a) Date, time, and location of the explosion (use 
compartment name or number if applicable); 

(b) Type of explosion; 

(c) Kind and quantity of the materials, gases, etc. 
that were involved; 

(d) Measurable time intervals, if any, between 
explosions; 

(e) Existence of barricades and protective gear 
and the effect of the explosion on them; 


2-44 




(f) Existence of any natural obstructions such as 
a hill, forest, or other object intervening between the 
site of the explosion and the areas affected; 

(g) Description of any loss or damage to 
Government and private property and estimated dollar 
amount needed to replace or repair the loss or damage; 

(h) Range and extent of damage as indicated by 
maps or photographs showing the following: 

1. Radius of complete destruction; 

2. Radius of structural damage beyond 
economical repair; 

2. Radius of repairable structural damage; 

4. Radius of general glass breakage; 

5. Distances that significant missiles were 
projected, including kind and weight; 

b. Distance between locations, if explosions 
occurred at more than one location; and 

2. Distance between ships and other vessels 
or structures affected and distances to nearby ships or 
structures not affected. 

(i) Approximate shape and dimensions of crater, 
if any, including depth and kind; 

(j) Weather and atmospheric conditions and their 
effect on shock waves; 

(k) Personnel involved and the extent of the 
involvement, their qualifications in terms of the 
Personnel Qualification Standards (PQS) System or 
other required safety qualifications, the level of 
training of the personnel involved, and whether the 
level of training met required standards; 

(l) Identity of personnel injured or killed (with 
full description of injuries supported by medical 
records and autopsy reports, as required) (see Part F 
for special considerations in death cases); 

(m) Description of the safety precautions or 
operating procedures that were in effect at the time of 
the explosion and whether they were observed or 
violated; and 

(n) Opinions on the probable cause(s) of the 


explosion. 

(2) An environmental assessment of the damage 
caused by the explosion may be necessary, particularly 
if there is evidence of chemical contamination of the 
surrounding area. Consult the cognizant legal service 
office or SJA. 

b. Other reports . Ashore explosive mishaps 
involving conventional ordnance are also reported 
under the separate procedures established in Chapter 5 
of OPNAVINST 5102.1 series. Afloat explosive 
mishaps are also reported under the separate 
procedures established in Chapter A6 of OPNAVINST 
5100.19 series. 

0245 STRANDING OF A SHIP OF THE NAVY 

a. General . An investigation involving the stranding 
of a ship shall include all pertinent logs, charts, orders, 
regulations, condition of the sea and weather, rate and 
direction of the tidal stream, time of the tide, and other 
factors involving natural elements. Additionally, any 
mechanical or electronic deficiency or failure in the 
ship pertinent to the stranding shall be investigated and 
reported. The investigation shall ascertain the cause 
and responsibility for the stranding and resulting 
damage. The stranding of a Navy ship, unless only 
insignificant damage results, is usually a major 
incident. A court of inquiry will normally be convened 
unless the preliminary inquiry indicates that a 
cormnand investigation will be sufficient to establish 
the facts. These incidents may also involve Admiralty 
Law aspects. Consult Chapter XII and the cognizant 
legal service office and SJA. 

b. Determination _of_ ship's _ position . The 

investigation shall determine whether the proper chart 
provided by the Department of the Navy was used, 
whether the position of the ship at the last favorable 
opportunity to avoid the casualty was accurately 
determined and, if not, when it was last accurately 
ascertained. To enable the investigative body to fix the 
true position of the ship at the time of her grounding, 
an officer not attached to the ship involved may be 
directed to ascertain the position of the ship from the 
data available. 

c. Navigation in pilot waters . If land was sighted and 
the distance estimated before the ship struck, steps 
taken during the time land was in sight to correct the 
ship's course and speed will be reported. The extent to 
which applicable instructions (e.g., those contained in 
Coast Pilot or Sailing Directions) were observed 


2-45 






should be noted. 

d. Other reports . Standings are also reported imder 
the separate procedures in Chapter A6 of 
OPNAVINST 5100.19 series. 

0246 COLLISION AND ALLISION INCIDENTS 

a. General . All vessel collisions and allisions (a 
vessel and fixed object) are admiralty incidents. 
Consult chapter XII for required investigations and 
guidance. 

b. Command _ investigations _ of collisions _and 

allisions . If, after consultation with the Judge 
Advocate General per section 1205a of chapter XII, a 
convening authority determines that the command 
investigation fonnat is appropriate, the following 
information shall be included in the report: 

c. Other reports . Collisions are also reported under 
the separate provisions in Chapter A6 of OPNAVINST 
5100.19 (series). 

0247 ACCIDENTAL OR INTENTIONAL 
FLOODING OF A SHIP 

a. General . If the investigated mishap is a flooding, 
the first determination to be made is whether the 
flooding is significant enough to document. Generally, 
flooding is considered significant when one or more of 
the followings conditions exist: damage is caused to 
major/vital equipment; origin of the flooding is 
suspicious; flooding delays deployment, causes 
significant change in operating schedule, or degrades 
mission capability; naval personnel were responsible 
for the flooding; defective naval design, specifications, 
or installation may have caused the flooding; or 
unsound operating doctrine or procedures caused or 
contributed to the flooding. Command investigations 
are normally used to document flooding. 

b. Required facts and opinions . The following 
information shall be included in the report of 
investigation into flooding: 

(1) Date, time, and location of the flooding by 
compartment name or number; 

(2) Source and type of flooding, e.g., (salt or fresh 
water, oil, JP-5); 

(3) How the flooding was detected; 


(4) Type of de-watering equipment that was used 
and its effectiveness; 

(5) Draft forward and aft and list of ship, before 
and after damage. (Note: drafts may have to be 
estimated from drafts recorded on departure from last 
port and on arrival in port after damage.); 

(6) General distribution and amount of variable 
weights, particularly fuel and water, before damage; 

(7) Compartments flooded and the rate of flooding 
for each one, including time when: 

(a) flooding started; 

(b) flooding detected; 

(c) time General Quarters sounded, or duty 
emergency repair party was called away; 

(d) flooding was stopped or brought under 
control; and 

(e) de-watering was completed; 

(8) Description of the physical effects of the 
flooding and the extent of damage (hull, machinery, 
equipment, electronics, supplies, cargo, etc.), including 
photographs, or diagrams to document the range and 
extent of damage; 

(9) Date of last inspection of the involved spaces 
with any noted discrepancies; 

(10) Ship's location at sea or in port; 

(11) Ship's condition of readiness; 

(12) Effect on the ship's ability to carry out its 
mission; 

(13) Summary of the steps taken to control damage 
and to correct the list, trim, or depth; 

(14) Performance of installations such as flood 
control, automatic door, and hatch closures; 

(15) Estimated dollar amount of damage or repairs 
required, including damage to personal property which 
may result in a claim against the Government; 

(16) Opinion on the probable cause of the flooding, 
including the cause of progressive flooding of other 


2-46 









compartments (e.g., material condition of 
readiness violated, failure of structure, defieiency of 
structure); and 

(17) Opinion on whether the occurrence of a 
similar type of flooding is possible on another ship. 

0248 FIRES 

a. General . If the investigated mishap is a fire of 
unknown origin affeeting DON persormel or property 
under Navy/Marine Corps control, any investigation 
shall be coordinated with NCIS (sections 0202(d) and 
0233(b)). The next, determination to be made is 
whether the fire is significant enough to doeument. 
Generally, a fire is considered significant when one or 
more of the following conditions exist: damage is 
caused to major/vital equipment; origin of the fire is 
suspieious; fire delays deployments, eauses significant 
change in operating schedule, or degradation of 
mission capability; naval persormel were responsible 
for the fire; defective naval design, specifications, or 
installation may have caused the fire; or unsound 
operating doctrine or procedures caused or contributed 
to the fire. Command investigations are normally used 
to document fires, unless the damage to property or 
loss of life involved rises to the level of a major 
incident. Fires in quarters ashore should normally be 
investigated by a litigation-report investigation since 
claims are usually involved. 

b. Required facts and opinions . The following 
information shall be included in the report of 
investigation of fires: 

(1) Date, time, and location of the fire (use 
compartment name or number if applicable); 

(2) Class of fire; 

(3) Method by which fire was detected; 

(4) Time when: 

(a) fire started (detected); 

(b) fire was reported; 

(c) General Quarters sounded, or fire party was 
called away; 

(d) fire located; 

(e) fire-fighting started; 


(f) reflash watch was set; 

(g) boundaries were set; and 

(h) fire was extinguished. 

(5) Type of fire-fighting organization that was 
used, e.g., duty section fire party, Condition One fire 
and repair party, base firefighters, civilian fire 
department; 

(6) Number of personnel who responded to the fire, 
their level of fire-fighting and damage control training; 

(7) Effectiveness of fire/repair locker organization, 
maintenance of organization charts, and leadership; 

(8) Effectiveness of installed damage control 
systems and equipment; 

(9) Type of extinguishing agent used and its 
effectiveness; 

(10) Availability and operability of extinguishing 
equipment; 

(11) System of communications that was used and 
any difficulties in communication; 

(12) Description of the physical effects of the fire 
(radii of losses and damage with respect to fire, smoke, 
and water, extent of the spread of the fire), including 
maps, photographs, or diagrams to document the range 
and extent of the damage; 

(13) Date of last inspection of the involved spaces 
with any noted discrepancies; 

(14) Ship's location at sea or in port; 

(15) Ship's condition of readiness; 

(16) Effect of the fire on the ship's ability to carry 
out its mission; 

(17) Estimated dollar amount of damage or repairs 
required, including damage to personal property which 
may result in a claim against the Government; 

(18) Identity of personnel that were injured or 
killed (with full description of injuries, medical 
records, autopsy reports, as required) (see Part F for 
special considerations in death cases); 


2-47 




(19) Opinion on the cause of fire and the factors 
that contributed to the spread of the fire; and 

(20) Opinion on whether the occurrence of a 
similar type of fire is possible on another ship. 

0249 LOSS OR EXCESS OF GOVERNMENT 
FUNDS OR PROPERTY 

a. General . Article 0814, U.S. Navy Regulations, 

1990 , requires commanding officers to recommend or 
convene an investigation under the provisions of the 
JAG Manual into the circumstances of all deficits 
(losses) or excesses of public funds or property in the 
custody of persons under their command, unless 
properly excused by higher authority. A command 
investigation is usually sufficient for this purpose. The 
following general provisions are pertinent: 

(1) To verify the existence and amount of a deficit 
or excess, a prompt audit (preliminary inquiry) of 
funds or property records normally should precede the 
decision to convene a JAGMAN investigation. 
Consultation with an appropriate assist team is 
encouraged prior to convening a JAGMAN 
investigation. 

(2) A JAGMAN investigation may be required 
even if the custodian of funds or property is not an 
accountable person, as defined in Department of 
Defense Financial Management Regulation (DOD 
7000.14-R), Volume 5, "Disbursing Policy and 
Procedures." 

(3) A JAGMAN investigation may be a 
prerequisite, under section 0167, to setoff against pay, 
losses by nonaccountable personnel, and is the primary 
source of information in determining whether or not 
relief of liability may be granted to the custodian in 
cases of lost funds in amounts of $750.00 or more. 

(4) Criminal law enforcement investigations are 
required if there is any indication that the loss or 
excess was caused by fraud, embezzlement, theft, or 
other criminal act. Any such investigation should be 
coordinated with the Naval Criminal Investigative 
Service. See section 0202d. Whether or not a 
criminal investigation is conducted, inventory records 
must be corrected with a supporting survey (Financial 
Liability Investigation of Property Loss (DD Form 
200)). Losses or excesses of Government funds shall 
be investigated and reported either by JAGMAN 


investigation or by the procedures established in DOD 
7000.14-R, Volume 5. 

(5) Commanding officers or reviewing authorities 
should consider conducting a preliminary inquiry 
when recurring losses or excesses indicate carelessness 
in handling public funds or property, and regular 
management reviews and reports are not considered 
adequate to remedy the situation. A JAGMAN 
investigation may be appropriate even though each 
loss or excess, by itself, would not nonnally require 
one. Navy publications applicable to the type of funds 
or property involved (e.g., including, but not limited to, 
NAVSUP P-486 for provisions afloat, or P-487 for 
ships' stores) should be consulted for those amounts of 
losses or excesses that are considered normal for the 
volume of business conducted, and for those amounts 
that warrant further investigation. 

(6) For losses or excesses of property (not funds), 
the procedures for Financial Liability Investigation of 
Property Loss (DD Form 200) meet the requirements 
for an investigation in most situations. The original 
report will be forwarded in accordance with survey 
regulations, and a duplicate original will be forwarded 
as set out in subsection h. 

(7) When the cause of loss or excess in the funds or 
property of a financially accountable custodian cannot 
be determined, negligence on the part of the custodian 
is nonnally presumed by the relief authority when 
considering requests for relief of liability. 

(8) Other than section 0167, there is no 
authorization to collect the value of lost public 
property from nonaccountable personnel, even when 
caused by fault or negligence. Disciplinary action, 
however, may be taken, if appropriate, based on 
investigation findings of culpability. 

b. Specific guidance 

(1) Public funds . JAGMAN investigations are 
required for all losses or excesses of public funds, 
except as follows: 

(a) When a loss of disbursing funds is 
voluntarily liquidated by the custodian under 
applicable provisions; 

(b) When the loss or excess is less than 
$750.00 in a single incident or related series of 
incidents; or 

(c) When routine accounting adjustments to 
accounts are appropriate to reflect a discrepancy in 


2-48 







money on hand. 

(2) Public property . A Financial Liability Officer 
(formerly called a Survey Officer) or Financial 
Liability Board (formerly a Survey Board) must 
inquire into, and report on, all losses or excesses of 
public property, unless an adjustment to accountable 
records is otherwise authorized by Naval Supply 
System Command regulations. 

(a) JAGMAN investigations are not generally 
required for those losses or excesses for which a 
Financial Liability Investigation of Property Loss 
(survey) is not mandated by Naval Supply Systems 
Command regulations. This includes such actions as 
food service "losses without survey," ship's store "non- 
disproportionate losses or gains," supply stock or other 
property book material losses or excesses which are 
below survey thresholds, or when other routine 
accounting adjustments to property accounts or 
inventories are appropriate to reflect a discrepancy in 
the property on hand. Repetitive minor losses, 
however, which are indicative of negligence may 
warrant an investigation as discussed in subsection a(5) 
above. Furthermore, a JAGMAN investigation may be 
directed by higher authority in the chain of command 
or by Commander, Naval Supply Systems Command. 

(b) To ensure independent investigation, the 
officer having custody of the property lost or in excess 
should not be designated the Financial Liability Officer 
to conduct the survey. 

(3) Postal funds or property . Postal funds are not 
public funds. Investigations into loss or excess of 
postal hinds or property, therefore, are not required by 

article 0814, U.S. _ Navy _ Regulations, _ 1990 . 

OPNAVINST 5112.6 series, however, requires a 
commanding officer to convene an investigation into 
any "postal offense" listed in volume I of the DOD 
Postal Manual. Even where no offense is involved, a 
commanding officer should consider convening an 
investigation into any postal loss in which an 
accountable naval postal clerk or officer has not made 
voluntary restitution. Such an investigation may be 
needed by the Postal Service for action on a request for 
relief of liability by the accountable individual. 

(4) Nonappropriated _ funds _or_ property . 

Nonappropriated funds are not public funds. Whether 
to convene an investigation under this Manual into 
losses or excesses of nonappropriated funds or 
nonappropriated fund property is in the discretion of 
the commanding officer or higher authority. In dealing 


with losses or excesses of "nonappropriated fund 
activities," however, it is important to note that some 
receive partial appropriated fund support. Losses or 
excesses of appropriated funds and appropriated fund 
property in the hands of nonappropriated fund 
activities must be investigated under subsections b(l) 
and b(2) above. 

c. Primary references for processing losses or 
excesses of Government property . Primary references 
for processing losses or excesses of Government funds 
and property include: 

(1) Department of Defense Financial Management 
Regulation (DOD 7000.14-R), Volume 5, "Disbursing 
Policy and Procedures." 

(2) Department of Defense Manual (DOD 
7200.10-M), "Accounting and Reporting for 
Government Property Lost, Damaged or Destroyed." 

(3) Naval Supply Systems Command Manual, 
Volume II, "Supply Ashore." 

(4) Naval Supply Systems Command Publication 

485, "Afloat Supply Procedures." 

(5) Naval Supply Systems Command Publication 

486, Volume I, "Food Service Management - General 
Messes." 

(6) Naval Supply Systems Command Publication 

487, "Ships Store Afloat." 

(7) Marine Corps Order (MCO) P4400.150 series, 
"Consumer Level Supply Policy Manual." 

d. Type of investigation . At the conclusion of the 
preliminary inquiry, the CA must determine which of 
the options listed in section 0204 to exercise. Where 
disciplinary action may be a consideration, see section 
0217. For losses of property, the CA may use a survey 
procedure under applicable Navy or Marine Corps 
regulations in lieu of an administrative investigation 
under this Manual. Original reports of survey 
generated by such bodies shall be forwarded as 
specified in the regulations under which they are 
convened. A duplicate original shall be forwarded in 
the same manner as reports of investigation under 
section 0218 and section 0249h below. This provision 
does not limit a CA's discretion to convene another 
type of investigation under this Manual in addition to a 
survey procedure. Regardless of the type of 
investigation convened, coordination with concurrent 
investigators from other Department of the Navy 


2-49 









organizations or other Federal agencies may be 
required under section 0202. 

e. Loss investigations: special notice to individuals 

affected . In any investigation into a loss of funds or 
property in the custody of an accountable individual, 
or for the purpose of making an administrative 
determination of accountability under section 0167b, 
the accountable individual(s) shall, in addition to other 
warnings and advisements required by law or 
regulation, be advised of the following: 

(1) The investigation extends to all facts relating to 
the loss, its causes, its dollar value, and the kinds and 
degrees of individual responsibility for the loss. 

(2) The findings of the investigation may be a basis 
for any of the following actions that are applicable to 
the loss: 

(a) Determination of financial liability of the 
accountable individual for loss of property or funds 
derived from sale of property by the Commander, 
Naval Supply Systems Coimnand, Chief, Bureau of 
Medicine and Surgery, or Deputy Chief of Staff for 
Installations and Logistics, U.S. Marine Corps, as 
appropriate, under 31 U.S.C. § 3531; 

(b) Determination whether relief of liability will 
be granted for physical loss or improper payment of 
disbursing funds or documents, upon request of the 
accountable individual, by the Secretary of the Navy or 
the Comptroller General, under 31 U.S.C. § 3527; 

(c) Determination by the commanding officer to 
hold a non-accountable individual liable for the loss 
under section 0167. 

(3) In loss of funds cases, negligence of the 
accountable individual may be presumed by the 
Secretary of the Navy or the Comptroller General if the 
loss remains unexplained. 

(4) The affected individual may present evidence 
for the consideration of the investigating officer(s). 
The investigating officer(s) may, however, refuse to 
accept evidence that is irrelevant, lacking in probative 
value, unduly voluminous, or whose inclusion would 
unduly delay the investigation. 

(5) An accountable individual may request to 
liquidate voluntarily a loss of disbursing funds under 
the applicable provisions of Department of Defense 
Financial Management Regulation (DOD 7000.14-R), 


Volume 5, "Disbursing Policy and Procedures." 

f Required facts and opinions . Chapter 6, section 
0607, Department of Defense Financial Management 
Regulation (DOD 7000.14-R), Volume 5, "Disbursing 
Policy and Procedures," provides specific procedures, 
findings and recommendations for investigation of 
major losses of funds due to physical loss, or illegal, 
incorrect, or improper payment. Command 
investigations appointed under the JAGMAN are used 
in the case of major losses of funds, defined as those 
losses of $750.00 or more or any physical loss where 
there is evidence of fraud within the accounting 
function, regardless of the dollar amount. JAGMAN 
investigations are not required in the case of minor 
losses, defined as losses of less than $750.00 without 
any evidence of fraud internal to the accounting 
function. Chapter 6 of DOD 7000.14-R, Volume 5, 
provides the procedures for investigating and reporting 
minor losses. In addition to any specific requirements 
of the appointing order or DOD 7000.14-R, 
investigations into losses or excesses of public funds or 
property must include, at a minimum: 

(1) What items were lost or found in excess and 
the exact dollar value of the loss or excess, e.g., 
property, vouchers, cash, and so forth. 

(2) The nature of the loss or excess (inventory gain 
or loss, cash shortage, or overage, etc.) and, in case of 
loss of funds, whether the loss was a loss of proceeds 
of sale of Government property, a physical loss of 
funds, or the result of illegal or improper payment. 
(Losses due to embezzlement or fraudulent acts of 
subordinate finance personnel, acting alone or in 
collusion with others, are physical losses, while all 
other payments on forged checks or vouchers are 
improper payments.) 

(3) How the loss or excess is being carried in the 
command's accounts. 

(4) The facts and circumstances surrounding the 
loss or excess, and an opinion as to the cause of the 
irregularity or, if the cause carmot be determined, the 
most likely cause and the reasons it is so considered. 

(5) The identity and position of the accountable 
officer, and the identity and position of any other 
person who had custody of the funds or property in 
question. 

(6) The general reputation of the accountable 
individuals for honesty and care in the handling and 





safeguarding of funds or property entrusted to them. 

(7) The experience and training of the accountable 
individual in the handling of funds or property, as 
appropriate, and the workload, including collateral 
duties, of the accountable individual at the time of the 
irregularity. 

(8) A description, with diagrams where 
appropriate, of the physical working conditions of the 
accountable individual who incurred the loss or excess, 
including a description of physical security 
arrangements and devices, and security containers and 
persons with access to them, if applicable, and a 
statement of whether they were being used properly at 
the time of the irregularity. 

(9) A description of the internal control procedures 
in effect in the division, department, or office where 
the irregularity occurred, and a statement whether they 
were being applied properly at the time of the 
irregularity. If relevant, include information on recent 
inspections, assist visits, management control reviews, 
or other evaluations of procedures. 

(10) Identification of the regulations pertinent to 
the handling of the property or funds involved and a 
statement whether the regulations were followed. 

(11) A description of remedial measures taken to 
prevent recurrence of the irregularity. 

(12) An opinion whether the loss or excess was 
proximately caused by the fault or negligence of any 
accountable individual or by an act of a non- 
accountable individual that can be the basis for 
financial liability under section 0167. 

g. Guidelines for determining fault or negligence 

(1) " Fault '’ means conduct showing bad faith, gross 
mismanagement, or neglect of care and may be 
inferred from irregularities resulting from inattention, 
dereliction, or perversity. 

(2) " Negligence " means failure to exercise care that 
a reasonable, prudent, accountable person would have 
exercised under the same or similar circumstances. 
Failure to know and follow regulations for the care and 
safeguarding of public funds or property normally is 
considered negligence, as is failure to follow normal 
and customary disbursing, collection, or safeguarding 
procedures or standards without sufficient reason. 


(3) " Proximate cause " means the irregularity was 
the direct and foreseeable consequence of an act or 
omission, or that the act or omission created the 
conditions for occurrence of the irregularity. A 
proximate cause is a cause without which the 
irregularity would not have occurred. 

(4) Burden of proof There is no burden of proof 
on the Government to show fault or negligence on the 
part of an accountable individual. The individual is 
automatically accountable for the loss and has the 
burden of establishing that he was not at fault or 
negligent in order to avoid financial liability. 
Nonnally, however, investigators and reviewing 
authorities should not presume fault or negligence 
from the mere fact that an irregularity occurred, except 
that negligence may be presumed when a loss of public 
funds is entirely unexplained. 

h. Distribution . Reports of investigation under this 
section should be forwarded as described in section 
0218. In addition, reports should be provided as 
follows; 

(1) For investigations of losses or excesses of 
disbursing funds or documents, a copy, as finally 
reviewed and acted upon per section 0209h, shall be 
forwarded to Director, Defense Finance and 
Accounting Service, Cleveland Center, Code FFA, 
1240 E. 90th Street, Cleveland, OH 44199; and 

(2) For investigations of losses or excesses of 
Government property or proceeds from the sale of 
Government property, the Commander, Naval Supply 
Systems Command, the Chief, Bureau of Medicine and 
Surgery, or the Commandant of the Marine Corps 
(Code LA), as appropriate. 

0250 CLAIMS FOR OR AGAINST THE 
GOVERNMENT 

a. General . An investigation ordered to inquire into 
an incident may, if a claim for or against the 
Government is involved from the same incident, be 
ordered to include those considerations required by 
Chapter VIII. In such cases, the separate investigation 
required by the claims regulations need not be made, 
but the "dual purpose" investigation must include the 
information necessary for claims adjudication. 
Combining a claims investigation with an inquiry or 
investigation ordered for other reasons is discretionary. 
Litigation-report investigations shall be used when 
documentation of the facts in anticipation of a claim is 


2-51 








the primary purpose of the investigation. Claims often 
arise, however, from major ineidents investigated by 
courts of inquiry, or from ineidents doeumented by a 
command investigation. The type of investigation 
convened must take into aeeount that a command 
investigation or eourt of inquiry, once begun, may not 
be protected from subsequent release to the public and 
use in litigation. CA's should consult the cognizant 
judge advocate regarding the type of investigation to 
convene in any ease in whieh there is a substantial 
possibility of a claim for or against the Government. 
When a elaim is likely to result from an incident giving 
rise to an investigation, a copy of the investigation 
must be provided to JAG and to the cognizant legal 
service office. Any investigation of an incident which 
may give rise to a elaim should document the facts 
discussed in this seetion. 

b. Procedures when claims matters are involved . 
When eonducting an investigation into claims matters 
the investigator(s) shall be guided by Chapter VIII, and 
endorsements to the report of investigation shall 
inelude any matters required by that chapter. 
Additionally, JAGINST 5890.1 series provides 
detailed guidanee regarding claims processing 
procedures. 

c. Forwarding records . The investigation convened 
specifically to document matters that are expected to 
give rise to a claim for or against the Government shall 
nonnally be a litigation-report investigation conducted 
under the direction and supervision of a judge 
advocate. As diseussed in section 0209, the CA of a 
litigation-report shall retain a copy of the report and 
forward the original to the Judge Advocate General 
(Code 15) via the staff judge advocate of the GCMCA 
in the chain-of-command. Copies shall be provided to 
the servicing legal serviee office upon completion of 
the CA's endorsement. The commanding officer of the 
cognizant naval legal service office is authorized to 
settle certain elaims and will review elaims in excess of 
his settlement authority prior to forwarding to JAG. 
The CA will also provide copies to his or her superiors 
in the chain-of-command and other commands which 
have a direct official need to know the results of the 
investigation. Chapter VIII and JAGINST 5890.1 
provide guidance for reports that must be forwarded to 
higher authority. 

d. Claims arising in foreign countries . Claims that 
arise in foreign countries shall normally be handled 
under Chapter VIII, applicable treaties, or international 
agreements. The appointing order shall reference these 
sources for guidance in conducting the investigation. 


e. Required facts and opinions . Incidents giving rise 
to claims for or against the Government are 
investigated using all three JAGMAN investigative 
methods, i.e., eommand investigations, litigation-report 
investigations, and courts and boards of inquiry. 
While litigation-reports are used to document facts and 
gather evidenee in cases in which the primary interest 
is adjudication of a claim or litigation, many incidents 
will be investigated by courts of inquiry or command 
investigations, particularly when the incident being 
investigated involves large scale property damage, loss 
of life, or raises issues concerning the management of 
naval aetivities. It is necessary, therefore, that the 
investigating offieer consult and work closely with a 
judge advocate who will be able to assist with the 
specific requirements of each case. All investigations 
into incidents which may result in elaims, however, 
must answer the following fundamental questions: 

(1) The identity of those involved, ineluding name, 
rank/grade, unit, age, address (home and work), 
telephone number, occupation, and how they were 
involved, e.g., deeeased as a result of the incident (in 
which case, identifying information for the next-of-kin 
or legal representative must be provided, as well), 
injured party, owner of property damaged, military 
member whose acts or omissions are alleged to have 
caused the harm, or witness. The findings of fact 
should provide information on how those involved 
may be located. Moreover, every attempt should be 
made to obtain a pennanent address that will be 
accurate for at least 5 years after the accident. Indicate 
for each individual their status as military (in which 
case indieate Regular or Reserve, on active duty, TAD, 
leave, liberty, and so forth at the time of the incident, 
after consulting section 0252 with regard to Reserves) 
or civilian (indicate whether they are a Federal 
employee, or are a personal serviees contractor 
employed by an independent contraetor). If 
maintenance or training is involved, identify the 
individual responsible for the maintenanee or training 
at issue; 

(2) Date, time, and place of incident, ineluding a 
full description of location, terrain, weather, light 
conditions, obstructions, and photographs of the site; 

(3) Nature of the claim (e.g., wrongful death, 
personal injuries, property damage); 

(4) A factual description of what happened, how 
the parties were injured, what equipment was being 
used, who was operating the equipment, who was 






supervising (or should have been supervising), whether 
equipment failed or was operated ineorreetly, if 
equipment failure, the maintenance history of the 
equipment, if the injury occurred on Government 
property, the condition of the property, who was 
responsible for the property's upkeep, the authority for 
the injured party to be present on Government 
property; 

(5) The nature and extent of personal injuries, if 
any: 

(a) amount of medical, dental, and hospital 
expenses incurred, supported by itemized bills or 
receipts for payment; 

(b) nature and extent of treatment, e.g., the 
number of days hospitalized, the name and address of 
all treating hospitals and medical facilities, the name(s) 
and addresses of all treating physicians or other care 
givers, extent and nature of all follow-on or outpatient 
care; 

(c) prognosis; 

(d) degree of disability, if any (e.g., total, partial 
permanent, partial nonpermanent, describe limits of 
use); 

(e) diminished earning capacity, if any; 

(f) Necessity for future treatment and estimated 
costs, if any; 

(g) Salary/eamings lost due to time lost from 
employment (e.g., actual number of work days lost, 
estimated compensation for that period based on 
hourly wage or salary), indicate full time, part-time, or 
self-employed; 

(h) If an individual died as a result of the 
incident under investigation and the estate or survivors 
file a claim against the Government, consult with a 
judge advocate regarding the wrongful death or 
survival statute applicable in the jurisdiction where the 
harm occurred. Document the time of death relative to 
the injury, intervening treatment and state of 
consciousness, cause of death as established by 
autopsy, pre-existing medical conditions, age, 
occupation, burial expenses, and heirs; 

(6) Amount of property damage, including 
photographs before and after, if possible, and estimates 
or bills of repair and receipts, whether any pre-existing 
damage existed, original purchase price, date of 


purchase, salvage value of property, if any; 

(7) Extent of damage to Government property, 
estimates or bills of repair and receipts, original 
purchase price, date of purchase, and salvage value of 
property, if any. If no damage, so state; 

(8) Whether the claimant has insurance for this 
type of damage or injury, the insurance company, 
policy number, policy provisions relevant to this claim 
or incident, extent of coverage, limits on liability, 
whether a claim has been or will be made against the 
insurance carrier, the status of any such claim; 

(9) Names and addresses of other owners, if 
claimant is not the sole owner of the property; 

(10) Existence of any police or other investigative 
report, name and address of investigating officer and 
unit, custodian of original investigation (provide a 
copy of any police report as an enclosure); 

(11) Whether civilian or military criminal charges 
were filed, the jurisdiction in which they were filed, 
and the status or final disposition of those charges; 

(12) Existence of any law, regulation, or order 
relevant to the incident and whether it was violated; 

(13) If a stray animal was involved, whether the 
jurisdiction has an "open range" law (attach a copy as 
an enclosure); 

(14) An opinion whether any military personnel 
involved were acting in the scope of their employment 
at the time of the incident; 

(15) An opinion regarding the cause(s) of the 
incident. If the facts are insufficient to form an 
opinion regarding the cause(s), indicate those factors 
which significantly contributed to the incident; 

(16) An opinion regarding fault or negligence; 

(17) An opinion whether a claim is likely to be 
filed, the amount likely to be claimed, and the names 
and addresses of any potential claimants and their legal 
representatives, if any; and 

(18) Whether a claim should be filed by the 
Government for personal injuries to its employees or 
property damage. 

f Sonic booms/jet noise/artillery noise . The nearest 


2-53 



Navy or Marine Corps aviation activity receiving 
notice that a sonic boom occurred within the United 
States, regardless of whether damage was reported, is 
responsible for an inquiry to detennine whether a 
military aircraft caused the disturbance. The inquiry 
shall include queries to all Navy, Marine Corps, Air 
Force, Air National Guard, and other military facilities 
in the area where supersonic aircraft operate. All 
traffic, transient as well as local, shall be checked. 

(1) The principal types of damage caused by a 
sonic boom are glass and plaster damage. Less 
frequently, claims are received for damage allegedly 
caused to brick walls, driveways, concrete foundations, 
and other major structural elements. Studies have 
shown that it is almost impossible for a sonic boom to 
generate over-pressures of sufficient intensity to cause 
such structural damage regardless of the aircraft's 
altitude. Whenever questionable items of damage are 
claimed, the services of a construction engineer or 
other professionally qualified person should be 
employed as investigator or as consultant to the 
investigator. The following information shall be 
included in any investigative report regarding sonic 
booms, jet noise, or artillery noise: 

(a) detailed description of alleged damage; 

(b) photographs of the allegedly damaged 
building or structure and of the specific area of 
damage; 

(c) detailed description of the building or 
structure involved, including significant details of 
construction, size of rooms, age, and general state of 
repair; 

(d) detailed examination and description of any 
alleged plaster damage; 

(e) existence or absence of glass damage in the 
allegedly damaged building or structure and whether 
any other glass damage resulting from the incident was 
reported and verified; 

(f) whether windows and doors were open or 
shut at the time of the boom; 

(g) whether any loose objects, such as dishes, 
glassware, or trinkets inside the building or structure 
were moved as the result of the boom; 

(h) existence or absence of similar damage to 
other buildings in the immediate neighborhood; 


(i) type of surrounding coiumunity development, 
type of construction, and density of buildings or 
structures in the immediate area, and so forth; 

(j) occurrence or absence of seismic disturbances 
registered in the locality at the time involved; 

(k) other potential sources of damage, such as 
heavy truck or rail traffic, explosions or earthquakes, 
and their distance and direction in relation to claimant's 
building or structure; 

(l) any imusual weather or climatic conditions 
that may have affected the building or structure; 

(m) complete physical description of the aircraft 
alleged to have caused the damage, including 
markings, whether jet or propeller driven, and any 
other distinctive characteristics; 

(n) full description of the approximate altitude, 
maneuvers, speed, direction of flight, time of day, date, 
formation and number of aircraft; 

(o) any complaints of noise or sonic booms 
received by any duty office which coincides with the 
alleged damage; and 

(p) authorization, description of flight, aircraft 
involved, applicable charts, and air controller 
transcripts or audiotapes of aircraft in the vicinity of 
the alleged damage. 

(2) If, after investigation, it is considered that a 
sonic boom, jet noise, or artillery noise incident 
occurred and it resulted from Navy or Marine Corps 
operations, action shall be taken under Chapter VIII. If 
it is considered that the sonic boom, jet noise, or 
artillery noise was caused by activities of another U.S. 
military service, claims received, and any investigative 
material shall be forwarded to the appropriate 
command, and the claimant so informed. If the sonic 
boom or noise was caused by non-military activities 
(e.g.. National Aeronautics and Space Administration, 
aircraft manufacturers) or if the source cannot be 
determined, action shall be taken under Chapter VIII. 
Opinions as to the cause of a sonic boom, jet noise, or 
artillery noise, shall not be expressed to a complaining 
party, except by a person authorized to negotiate the 
settlement of the claim. 

0251 HEALTH CARE INCIDENTS 


2-54 


a. General 


(1) Incidents arising out of the delivery of health 
care in a military treatment facility shall be 
investigated in accordance with this section. The 
purposes of the investigation are to gather all facts 
pertinent to the incident, to determine the cause and 
contributing factors to the incident, and to ascertain the 
nature and extent of injuries suffered as a proximate 
result of the incident. Investigations under this section 
are separate from any quality assurance investigation 
conducted by the staff of the military treatment facility 
solely for quality assurance purposes. See paragraph b 
below. Most health care incidents should be 
documented by a command investigation, or if a claim 
is anticipated, a litigation-report investigation. 

(2) Health care investigations shall be convened in 
the following circumstances: 

(a) when a claim has been filed against the 
United States, its officers, or its employees as a result 
of a health care incident. Incidents involving 
Government contractors and their employees should 
also be investigated if it is likely that the United States 
may be joined or impleaded as a party to a lawsuit, or 
where a claim under a contract between the United 
States and the contractor is likely. 

(b) in any case involving death, or a 
potentially compensable event, where the adequacy of 
health care rendered by Government employees or 
provided in a military treatment facility (MTF) is 
reasonably in issue. Potentially compensable events 
include: 

1. unexplained death (including apparent 

suicide); 

2. any complication in treatment which 
results in: corrective procedure; brain damage; motor 
weakness; sensory nerve injury; total or partial loss of 
limb; sensor organ loss or impairment; or reproductive 
organ loss or impairment; 

2. inadvertent blood transfusion with 
HIV or hepatitis-virus contaminated blood; 

4. procedure performed on wrong patient 
or body part (including extraction of the wrong tooth); 

(c) When necessary to make administrative 
determinations, other than actions involving clinical 
privileges concerning health care personnel. 


(d) When necessary to assist convening and 
reviewing authorities in making decisions concerning 
the delivery of health care. In this regard, the impact 
of the following should be taken into consideration: 

1. training of health care persormel; 

2. design or maintenance of material or 
equipment; 

2. assignment and qualifications of 
personnel; 

4. supervision of trainees; and 

5. health care delivery policies (or the lack 

thereof); 

b. Relationship to medical quality assurance program 

(1) The Chief, Bureau of Medicine and Surgery, 

has issued guidance concerning the health care quality 
assurance program in NAVMEDCOMINST 6320.7 
series. Records created as a part of the quality 
assurance program are privileged documents under 10 
U.S.C. section 1102. 

(2) Although health care investigations are not 
created as part of the quality assurance program, and 
therefore are not entitled to the confidentiality and 
privilege mentioned above, they may be used as input 
to the quality assurance review process. 

(3) Inquiries into the circumstances surrounding a 
health care incident done exclusively for quality 
assurance purposes should be clearly labeled as such. 
Such inquiries are not subject to the requirements of 
this chapter. 

c. Required facts and opinions . The scope of the 
health care investigation will vary depending upon the 
nature and circumstances of the incident under review. 
The following information shall be included in the 
report of investigation into a health care incident: 

(1) a comprehensive chronology and description of 
all relevant facts; 

(2) identification of all involved health care 
providers, including their credentials (education, 
training, and experience), status (trainee or staff; 
Government employee or contractor), and role 


2-55 





(attending, consulting, or supervision). Of primary 
importance is the full identification of the staff 
physician responsible for the patient's care at the time 
of the incident. The findings of fact or enclosures 
should provide information on how those providers 
involved may be located. Every attempt should be 
made to obtain a permanent address. If maintenance of 
equipment or training of personnel is involved, identify 
the individual(s) responsible for the maintenance or 
training at issue; 

(3) patient infonnation, including medical history, 
condition immediately prior to incident under review, 
and current condition supported by all relevant medical 
records. Included in this information should be the 
following: 

(a) the patient's name, date of birth, age, sex, 
address, phone number, marital status, occupation, and 
dependents; 

(b) nature and extent of injuries alleged to have 
occurred, special damages, additional treatment 
required, prognosis, degree of disability, loss of chance 
of recovery, if any, and the names and addresses of 
subsequent treating physicians or health care providers, 
if any; and 

(c) in instances where a claim has been received 
or the patient has verbally indicated an intent to file a 
claim, any interviews with the claimant or other family 
members should be summarized, and signed by the 
potential claimant, if possible. Prior to any contact 
with a claimant or potential claimant, the investigating 
officer shall clear such contact with the cognizant 
judge advocate. 

(4) A copy of the claim and any other documents 
or correspondence which shed light on the claimant's 
or potential claimant's contentions concerning the 
matter; 

(5) A statement indicating all of the medical 
records, inpatient, outpatient, and special studies 
(x-rays, tissue slides, EKG tapes, fetal monitoring 
strips, etc.) have been secured. The investigation must 
indicate the date and person who secured those items 
and the current location and custodian of each. Copies 
of the complete medical record must be included with 
the investigation. Entries must be reviewed to ensure 
handwriting is legible and, if illegible, typed transcripts 
should be attached to the investigation; 

(6) All special studies must be retrospectively 


reviewed to assess whether the original interpretations 
were accurate. If possible, retrospective reviews must 
be structured as "blind" reviews, i.e., the reviewer 
should not be aware of the previous interpretation. A 
summary containing the name and credentials of the 
person conducting the retrospective review and that 
person's findings must be included with the 
investigation. The summary should not be signed by 
the reviewer; 

(7) Copies of all relevant documents, including: 

(a) the MTF staff bylaws; 

(b) all relevant MTF policies, procedures, and 
protocols (clinicaFsurgical, nursing, and ancillary 
services such as the laboratory or phannacy, and health 
care administrative policies) in effect at the time of the 
incident that might have a bearing on the issues; 

(c) all relevant logbook entries pertaining to the 
patient maintained by labs/clinics/offices (i.e., 
emergency room logs reflecting arrival/departure 
times, ambulance log book/trip sheets/rescue service 
reports, and centralized appointment registers/print¬ 
outs or pharmacy history printouts); and 

(d) all patient information pamphlets, brochures, 
or sheets which were provided to the patient. 

(8) In cases involving contract providers, a copy of 
the contract. Notifying a contractor that a claim exists 
or a potentially compensable event has occurred must 
be coordinated with the contractor's representative and 
the legal advisor to the command. Attach a statement 
to the investigation indicating the action taken 
regarding notification to a contractor, and include a 
copy of any written notification that may have been 
provided; 

(9) For incidents involving possible 
equipment/device failure, include the following: 

(a) photographs of equipment / devices taken 
before the equipment/device is moved, used again, 
altered, tested, or repaired. Photographs must be 
annotated to reflect the time, date, and identity of the 
person who took the photograph; 

(b) the date, location, and names of the persons 
involved in the evaluation of the equipment/device and 
the findings thereof Equipment / devices must be 
removed from service and secured until examined by 
appropriate technical representatives. Equipment / 


2-56 



devices must not be used, altered, tested, or repaired 
until properly evaluated; and 

(e) eopies of maintenance reports and any 
protocols for the maintenanee and repair of the 
equipment/deviee in question at the time of the 
ineident. 

(10) Results of a review of the staffing levels 
(physieian, nursing, corpsman, and ancillary) at the 
time of the ineident. Include in the review the 
"curreney" of the members to perfonn their duties at 
the time of the incident and their "orientation" to 
perform the duties assigned at the time of the incident; 

(11) A statement of the standard of eare for any 
practices, procedures, policies, protoeols, or systems 
involved in the incident and the basis whieh establishes 
that standard of care (provide a eopy of relevant 
medical literature, texts, treatises, articles, polieies, 
practiees, or procedures). This refers to 
clinical/surgieal proeedures, nursing procedures, 
aneillary serviees sueh as the medical laboratory or 
pharmacy procedures, and health care administrative 
policies. The source and date of documents relevant to 
the standard of care must be provided; 

(12) Summaries of expert reviews of the eare 
documented by the investigation. The summary must; 

(a) identify the reviewer and the reviewer's 
credentials, and contain an evaluation (i.e., expert 
opinion) deseribing the duty that was owed the patient 
(standard of care); 

(b) indicate the manner in which the duty 
was either met or not met; 

(e) in instances in which the duty was not 
met, provide an opinion on whether the act or omission 
resulted in harm to the patient and, if so, a 
deseription of the harm, including an explanation of 
how the harm may affect the patient in the future; and 

(d) where there has been a deviation from the 
standard of care, the summary must contain an opinion 
regarding the cause(s) or contributing factors for any 
deviation from the standard, the name(s) of persons 
responsible for the deviation, and a description of 
corrective action, if required, in terms of personnel, 
equipment, or poliey. 

(13) Each provider whose aetions are at issue must 
be provided an opportunity to make a statement for 


inclusion in the investigation. The investigating officer 
should summarize the results of the interview using 
care to be as aeeurate and complete as possible. 
Summaries of interviews with providers shall not be 
signed but authenticated by the investigating officer's 
signature. 

0252 RESERVISTS 

a. Statutory provisions . 10 U.S.C. section 1074a 
governs entitlement to medical and dental care 
administered by the Navy for persons in the Navy who 
incurred or aggravated an injury, illness, or disease 
while performing active duty or annual training for a 
period of 30 days or less, or inactive-duty training (or 
while traveling directly to or from such duty). 

b. Annual training . The period of annual training 
extends from the time of reporting to the time of 
release, and, if the orders to active duty for training 
provide for travel, the time of travel to and from the 
duty station not in excess of the allowable constructive 
travel time as preseribed in paragraphs 10241 and 
80211,DODPM. 

c. Investigation . Incidents involving injury or death 

of reservists occurring during a period of annual 
training or inactive duty training (drill), as defined 
above, or that occur while traveling directly to or from 
places _ where _ members _are_ performing _ or have 

performed such duty , or any case involving a question 
of whether a disease or injury was incurred during a 
period of annual training, inactive duty training (drill), 
or travel, as defined above, should be investigated. 
The area coordinator or designated subordinate 
commander in whose geographic area of responsibility 
the incident occurred has the responsibility to ensure 
that investigations are eonducted into incidents 

involving naval reservists. The Commanding General, 
4th Marine Division, and the Commanding General, 
4th Marine Aireraft Wing, are responsible for ensuring 
that investigations are eonducted into incidents 

involving reservists within their commands. 

d. Required facts and opinions . An investigation 
involving Reserve persoimel should inelude: 

(1) Hour the reservist began travel directly to or 
from duty or training; 

(2) Hour the reservist was seheduled to arrive for, 
or at whieh he ceased performing, that duty or training; 

(3) Method of travel used; 









(4) Actual itinerary and authorized itinerary; 

(5) Authorized mode of travel and authorized travel 
time; 

(6) Manner in whieh travel was performed; and 

(7) Place, time, and circumstances of injury or 
death. 

0253 FIREARM ACCIDENTS 

a. General . A cormnand investigation shall normally 
be used to doeument all relevant cireumstances of 
incidents involving accidental or apparently self- 
infheted gunshot wounds. 

b. Required facts and opinions . An investigation 
involving firearm accidents shall inelude: 

(1) Date, time of day, and names and addresses of 
witnesses present; 

(2) Deseription of physieal location of incident and 
light and weather conditions; 

(3) Description of the firearm and its mechanical 
condition, especially safety meehanisms, and whether 
the safety meehanisms were used by the firearm 
handler; 

(4) Authorization for possession of the firearm, 
including how, when, and where it was obtained; 

(5) Description of firearm handler's formal training, 
experience, and familiarity with the firearm's 
condition, safety procedures, and proper use; and 

(6) Discussion of any psychological problems, 
mental impairment due to drug or aleohol use, and 
mental responsibility of the fireann handler. 

0254 OTHER INCIDENTS 

a. Pollution Incidents . When pollution incidents are 
required to be investigated beeause of service 
regulations (other than the JAGMAN) or beeause of 
applicable Federal, State, or local laws or regulations, a 
copy of any report should be submitted directly to the 
Judge Advoeate General and the geographic 
environmental coordinator as set out in OPNAVINST 
5090.1 series. Further guidanee concerning pollution 
incidents is contained in JAGMAN Chapter XIII. A 


litigation-report investigation should normally be 
convened, unless the event amounts to a major incident 
requiring a court of inquiry. The following 
information shall be included in the report of 
investigation of pollution ineidents and spills: 

(1) Location and circumstances of the spill, 
including the weather and conditions at the site 
(visibility, darkness, presence/phase of the moon, how, 
when, and by whom the spill was detected); 

(2) Description of the activity occurring when the 
spill occurred (e.g., shifting fuel, taking on fuel, 
pumping bilges); 

(3) Type of material (e.g., fuel, oil, other hazardous 
material); 

(4) Estimated quantity of material spilled and the 
basis for the estimate; 

(5) Source of the spill, e.g., tank, drum, or valve; 

(6) Identity of personnel involved including name, 
rank/grade, unit, address (home and work), age, 
training and experience for task, and who was (or 
should have been) providing supervision; 

(7) Whether required reports were made (e.g., 
reports required by OPNAVINST 5090.1 series, 
reports to the National Response Center, reports 
required by state and local law, reports to the Navy 
operational chain-of-command, and reports under the 
Emergency Plarming and Coiumunity Right-To-Know 
Act (EPCRA); 

(8) Whether local SOPA and cormnand 
instructions were complied with; 

(9) Description of cleanup, including membership 
of the quick response team, training, response time, 
actions taken, equipment used, effectiveness of 
equipment and personnel, availability and readiness of 
equipment and persomiel; 

(10) Nature and extent of damages to Government 
and private property; 

(11) Personal injuries, if any, including name of 
injured parties and extent of injuries (see section 0250 
regarding claims); 

(12) Attach copies of relevant training documents 
(e.g., Persormel 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 eollect and reeord 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 destmction 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 .ludge 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 impainuent 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(l) 










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 enviromnent 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 eontext 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 recoimnendations 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(l) 






SAMPLE COMMAND INVESTIGATION REPORT 


Ser Info 
Date 


Captain_, USMC 

Commanding Officer, Headquarters Battalion, Marine Corps Base, Camp Pendleton, CA 
SAME AS SUBJECT ON CONVENING ORDER 

(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-_ [enclsO, ()] 

2. _ [ends (),()] 

3. _ [end ()] 

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. 


From: 

To: 

Subj: 

End: 


A-2-c(2) 












Opinions 


1- _[FF()] 

2. _[FF ()] 

3. _[FF ()] 

Note: An opinion is a reasonable evaluation, reference, or eonclusion based on faets 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 
T 0 : 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 circumstanees surrounding the fire that 

oecurred 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, negleet, 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(l) 










SAMPLE LITIGATION-REPORT INVESTIGATION 
EOR 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 

Enel: (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 fonn 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. -[end ()] 

2. -[ends (),()] 

3. -[end ()] 

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(l) 


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 OE 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 OE DISCLOSURE 


THE ATTACHED RECORD CONTAINS PERSONAL INFORMATION CONCERNING AN 
INDIVIDUAL. USE AND DISCLOSURE THEREOF IS GOVERNED BY SECNAVINST 
52II.5D. UNAUTHORIZED DISCLOSURE OF PERSONAL INFORMATION FROM THIS 
RECORD COULD SUBJECT THE DISCLOSED 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 coneeming 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 OE PRELIMINARY INQUIRY 


(Date) 


From: (Name and ra nk 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 eomplaint, with the 

c. 

Complaints alleging recommendations 


proceedings had thereon 

d. 

as wrongs 

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 subjeet of 
a complaint 


COMMAND TO THE GCMA 

c. 

Who shall consider the complaint 

0309 

ACTION BY THE JUDGE 

d. 

Authority of intermediate 


ADVOCATE GENERAL 


superior officers 

a. 

When complaint has been aeted upon 



b. 

When the Assistant Seeretary of the 

Navy (M&RA) is GCMA 



c. 

Referral to the General Counsel of the 
Navy 


3-1 




0310 REVIEW BY THE SECRETARY OE 
THE NAVY 

a. Scope 

b. Action where redress was 
granted 

c. Aetion where redress was denied 

d. Notifieation to complainant 

e. Finality 

f. Other remedies 

g. Delegation 


3-2 


CHAPTER III 

COMPLAINTS OF WRONGS 


0301 PURPOSE 

To establish procedures for preparing, submitting and 
processing complaints of wrongs against a 
complainant's cormnanding officer under article 138, 
Uniform Code of Military Justice (UCMJ), and 
complaints of wrongs against a military superior (who 
is not the complainant's commanding officer) under 
article 1150(4), U.S. Navy Regulations (1990) . 

0302 AUTHORITY 

a. Article 138, UCMJ states: "Any member of the 
anned forces who believes himself wronged by his 
commanding officer, and who, upon due application to 
that commanding officer, is refused redress, may 
complain to any superior commissioned officer, who 
shall forward the complaint to the officer exercising 
general court-martial jurisdiction over the officer 
against whom it is made. The officer exercising 
general court-martial jurisdiction shall examine into 
the complaint and take proper measures for redressing 
the wrong complained of; and shall, as soon as 
possible, send to the Secretary concerned a true 
statement of that complaint, with the proceedings had 
thereon." 

b. Article 1150, U.S. Navy Regulations (1990) . 
states in part: "If any person in the naval service 
considers themself wronged by an act, omission, 
decision, or order of a person who is superior in rank, 
or command, that person shall not fail in maintaining a 
respectful bearing toward such superior, but may 
report the wrong to the proper authority for redress in 
the manner provided in this article." For purposes of 
this chapter: 

(1) An article 1150 Complaint of Wrongs (which 
can only be filed against a superior who is nol the 
complainant's commanding officer) shall be processed 
as follows: 

(a) Where the respondent and complainant 
do not have the same commanding officer, an article 
1150 complaint shall follow the same procedures 
enumerated in this chapter for an article 138 complaint. 


(b) Where the respondent and complainant 
have the same commanding officer, that cormnanding 
officer shall take final action on the article 1150 
complaint. It is neither desired nor required that the 
report be forwarded to the Secretary of the Navy in 
such a case. If the complainant is not satisfied with the 
resolution made by the commanding officer, an article 
138 complaint may be filed against that commanding 
officer. 

(2) An article 1150 Complaint of Wrongs shall be 
in the fonnat specified in appendix A-3-a of this 
manual. 

(3) For processing article 1150 complaints, 
substitute the words "superior" for the words 
"commanding officer" as they are used in this chapter. 

0303 DEFINITIONS OF TERMS AND 

PHRASE USED IN THIS CHAPTER 

a. Complaint of wrongs . A service member's formal 
request to superior authority for relief from a wrong 
cormnitted against the member for which the member 
sought, and was denied, redress. 

b. Commanding officer . For purposes of an article 
138 complaint, "commanding officer," as used in this 
chapter, means a commissioned or warrant officer 
who, by virtue of rank and assignment, exercises 
primary command authority over a military 
organization, or prescribed territorial area, to which 
complainant is assigned, that under official directives 
is recognized as a "command." Para. 2a, part V, 
MCM. For complaints against a person filed under 
article 1150, U.S. Navy Regulations, references in this 
Chapter to a "commanding officer," respondent are to 
be read to refer equally to a respondent under article 
1150 (a person who is superior in rank or command to 
the complainant but not his or her cormnanding 
officer). 

c. Due application . A timely request to the 
"commanding officer" for redress of an alleged wrong 
committed or ratified by that person. 

d. Respondent . The individual who committed the 


3-3 








alleged wrong against complainant, and against whom 
the complaint of wrongs is made. A complaint is 
against a specific person. 

e. General court-martial authority (GCMA) . The 
officer (or successor in command) next superior in the 
chain of command exercising general court-martial 
jurisdiction over the respondent at the time of the 
alleged wrong, except in cases forwarded to the 
Assistant Secretary of the Navy (M&RA) under this 
subsection . When the Chief of Naval Operations 
(CNO) or the Commandant of the Marine Corps 
(CMC) is the next superior officer in the chain of 
command exercising general court-martial jurisdiction 
over the respondent at the time of the alleged wrong, 
the Vice Chief of Naval Operations or the Assistant 
Commandant of the Marine Corps, respectively, shall 
act on the complaint as the GCMA. In cases where 
the respondent is the CNO, the CMC, or a 
departmental level officer who does not report to either 
the CNO or CMC, the GCMA is the Assistant 
Secretary of the Navy (Manpower & Reserve Affairs). 

f Wrong . Any act, omission, decision or order, 
except those excluded by subsection 0304, taken, 
caused, or ratified by a "commanding officer," under 
color of that officer's military authority that: 

(1) results in personal detriment, harm, or injury to 
a military subordinate; 

(2) is without substantial basis, unauthorized, 
arbitrary and capricious, unjust, or discriminatory; 

(3) is properly capable of redress in command 
channels. 

g. Redress . Any lawful action taken by the 
"commanding officer," the GCMA, or any officer in 
the chain of command (see subsection 0305d) that 
restores to the complainant any rights, privileges, 
property or status he would have been entitled to had 
the wrong not occurred. 

h. Examination into a complaint . An inquiry into all 
facts material to the complaint. This inquiry may take 
any form the GCMA deems appropriate. See 
subsection 0307d. 

i. Tme Statement of the complaint, with the 


proeeedings had thereon . A report to the Secretary of 
the Navy, signed personally by the GCMA. See 
subsection 0307k. 

0304 COMPLAINTS NOT WITHIN THIS 
CHAPTER 

a. Actions which may not be the subject of a 
complaint of wrongs . The following actions are not 
proper subjects of a complaint of wrongs: 

(1) actions, omissions, decisions, or orders that are 
not within the definition of "wrongs" in subsection 
0303f; 

(2) acts, omissions, decisions and orders not taken, 
caused or ratified by respondent; 

(3) aets that are not final. Most recommendations 
are not final acts. When the recommendation itself is 
controlling, such as a recommendation for 
advaneement or for a Navy Enlisted Classification 
(NEC) removal, it is a final act, and a proper subject of 
a complaint of wrongs. If a recommendation has been 
acted upon by another authority, the complaint of 
wrongs will be processed under subsection 0307c; 

(4) general policies of the Department of Defense 
and the Department of the Navy, including the 
instruetions and other documents promulgating such 
policies; 

(5) the GCMA's deeisions and procedures on 
complaints of wrongs, except for failure to forward the 
complaint; 

(6) complaints which may be redressed under other 
Department of the Navy procedures that provide the 
complainant notice of the alleged wrongful act, a right 
to rebut or a hearing, as appropriate, and review by an 
authority superior to the officer taking the aetion. 
Such procedures include, but are not limited to: 

(a) proceedings, findings, or final actions of 
boards convened under 10 USC sections 1181 (Board 
to Consider Separation of Regular Officers for 
Substandard Performanee) and 1182 (Board of 
Inquiry); 

(b) nonjudicial punishment, court-martial, and 


3-4 










administrative discharge procedures and results. The 
vacation of a suspended nonjudicial punishment is the 
proper subject of a complaint of wrongs as no other 
due process procedure exists to examine that action; 

(c) detachment for cause proceeding in which 
the requirements of paragraph a(6) of this section were 
afforded the complainantT; and 

(d) personnel detailing decisions in which the 
member has been afforded an opportunity for flag or 
general officer review. 

b. Improper redress . The following actions may not 
be requested to redress a wrong: 

(1) imposition of disciplinary action against 
another; or 

(2) changes in final military records. 

(a) Article 138 UCMJ may NOT be used to 
modify a military record unless the service member 
initiates a complaint within 90 days after he or she 
knows of the record's submission for entry into the 
appropriate record or 1 year after submission for entry 
into the appropriate record, whichever is earlier. 

(b) In calculating these periods, the time from 
the date the complainant requested redress from the 
"commanding officer" to the day the complainant 
receives notice from the "commanding officer" of the 
disposition of the request for redress, is not counted. 

0305 PARTICIPANTS TO A COMPLAINT OF 
WRONGS 

a. Who may complain . At the time the complaint is 
submitted, the complainant must be: 

(1) a member of the armed forces on active duty 
concerning a wrong which is alleged to have occurred 
while the complainant was on active duty; 

(2) a drilling reservist concerning a wrong alleged 
to have occurred while the complainant was a drilling 
reservist; or 

(3) any reservist alleging a wrong by a 
commanding officer, (or, in the case of complaints 


filed under article 1150, U.S. Navy Regulations, 
another military superior,) while the respondent was 
acting in an official capacity. 

b. Who may be the subject of a complaint . Any 
"commanding officer," as defined in subsection 0303b, 
may be the respondent to a complaint of wrongs. 
Neither the Secretary of the Navy, nor any of the 
Secretary's assistants or deputies, may be the 
respondent to a complaint of wrongs. 

c. Who shall consider the complaint . 

(1) General rule. Complaints of wrong will be 
expeditiously resolved at the lowest possible level of 
command. The GCMA has the initial and primary 
responsibility to investigate the complaint of wrongs, 
take action thereon, and submit a report of the 
proceedings to the Secretary. 

(2) Reassignment of complainant or respondent . If 
the respondent detaches before complainant submits a 
complaint of wrongs, the complaint will be forwarded 
to the officer who was the GCMA over the respondent 
at the time of the alleged wrong, or to that officer's 
successor in command. If the complainant detaches 
before submitting a complaint, it will be forwarded to 
the GCMA via the complainanfs new commanding 
officer. If both the respondent and the complainant 
detach before complainant submits the complaint, the 
complaint will be forwarded to the officer who was the 
GCMA over the respondent at the time of the alleged 
wrong, or to that officer's successor in command, via 
the complainanfs new commanding officer. In aU 
cases, the complaint will be forwarded to the GCMA 
via the respondent. 

(3) Review of complaints by area coordinators . 
An area coordinator will act as the GCMA when that 
officer is the GCMA over the respondent as defined in 
subsection 0303e, or if specifically requested and 
authorized in writing to do so by the original GCMA 
over the respondent. 

(a) The area coordinator and the GCMA over the 
respondent will detennine, on a case-by-case basis, 
whether it is appropriate for the area coordinator to act 
on a particular complaint of wrongs, considering such 
factors as: the geographic location of the respective 
commands; the effect of operational commitments on 


3-5 









the GCMA's ability to investigate the complaint 
adequately; the relative burden of assuming 
investigative cognizance; the relative seniority of the 
respondent and the area coordinator; and familiarity 
with the subject matter of a specific complaint. The 
GCMA's letter requesting an area coordinator to act 
upon a complaint should detail the reasons for the 
request. An area coordinator may decline for 
appropriate reasons to act on a complaint. 

(b) Ultimate responsibility for processing the 
complaint remains with the original GCMA over the 
respondent. If the original GCMA forwards a 
complaint to the area coordinator, the original GCMA 
shall maintain a file on the complaint for 2 years. The 
file should include a copy of the GCMA's written 
request to the area coordinator to act as the GCMA, 
and a copy of the area coordinator's final action. Once 
the area coordinator assumes cognizance over the 
matter, that officer acts independently and in the place 
of the original GCMA, with the authority to grant any 
redress the original GCMA may have ordered. 

(4) Review of complaints from joint commands . 
Where the complainant is assigned to a joint 
command, and the GCMA over the respondent is a 
member of another service, the complaint shall be 
forwarded to the GCMA via the senior naval officer in 
the joint command, the designated Navy or Marine 
Corps commanding officer of the command, or the 
cognizant naval area coordinator, as appropriate. He 
shall review the complaint to determine whether it 
raises issues unique to the naval service and 
addressable only under U.S. Navy regulations and 
instructions. The GCMA may, in such a circumstance, 
specifically request and authorize either the naval area 
coordinator or the appropriate component commander 
to act on the case. 

d. Authority of intermediate superior officers . An 
intermediate superior officer, junior to the GCMA, to 
whom a complaint is forwarded, may comment on the 
merits of the complaint, add pertinent evidence, and, if 
empowered to do so, grant redress, noting such action 
on the record. In all cases, intermediate superior 
officers shall promptly forward the complaint to the 
GCMA, and provide a copy of the endorsement to the 
complainant. See subsection 0306e. 

0306 PROCEDURE 


a. Time limitations . A complaint must be submitted 
within a reasonable time after discovery of the alleged 
wrong. Absent unusual circumstances, a complaint 
submitted more than 90 days after the complainant 
discovers the alleged wrong is untimely. The period 
during which the commanding officer is considering 
complainant's written request for redress imder 
subsection 0306b is not included in this 90-day period. 
The GCMA may deny relief solely because the 
complaint is untimely. See subsection 0307b(2). If, 
however, the GCMA detennines that unusual 
circumstances justify the delay in submission, the 
GCMA may find that the complaint is timely and act 
on it. 

b. Request to commanding officer for redress . 
Before a complainant may submit a complaint of 
wrongs imder article 138, UCMJ, the complainant 
must request, in writing, that the commanding officer 
redress the wrong. The commanding officer must act 
upon this request for redress in a timely manner 
(ordinarily within 30 days) and notify the complainant 
in writing of the action taken. 

c. Form of complaint . If the redress requested in 
0306b is not granted, or if the complainant asserts that 
any grant or partial grant of redress is insufficient, then 
a complaint for redress of wrongs may be filed under 
this chapter. The complaint shall be submitted in the 
format provided at Appendix A-3-a. This form must 
be completed in its entirety, unless a particular 
subparagraph — such as that providing for an 
explanation for untimely submission — does not apply. 
A complainant should submit all relevant evidence, 
including affidavits, statements, and documents, with 
the complaint. The complaint should specify briefly 
the wrongs alleged and redress requested, followed 
thereafter by explanatory information, if necessary. 

d. Forwarding the complaint . The complainant shall 
forward the complaint to the GCMA, via the chain of 
command, including the respondent. Immediately 
upon receipt, the GCMA shall send a copy of the 
complaint, without enclosures, to the Secretary of the 
Navy via the Office of the Judge Advocate General 
(Administrative Law Division), 1322 Patterson Ave, 
SE, Suite 3000, Washington Navy Yard, DC 20374- 
5066. 


3-6 








e. Endorsements . Intermediate endorsers, including 
the respondent, shall ordinarily forward the complaint 
within 10 working days after receipt. Endorsements 
not completed within 10 working days of receipt must 
contain an explanation for the delay. Subject to 
applicable security of classified material instructions, 
endorsers must provide to complainant copies of their 
endorsements, including enclosures. 

f Withdrawal of complaint . A complainant may 
withdraw a complaint at any time. The withdrawal 
must be in writing and signed by the complainant. 
After notifying the Secretary of the Navy via the Judge 
Advocate General, the GCMA shall file the complaint 
and the withdrawal letter without further action, and 
maintain the file for two years from the date of 
withdrawal. 

g. Joinder . A complaint may not be joined with the 
complaints of other individuals. Similarly, each 
complaint may seek redress for the wrong(s) of only 
one respondent. If the complainant believes more than 
one respondent has committed a wrong, the 
complainant shall submit a separate complaint against 
each respondent. 

h. Waiver of requirements . The GCMA may waive 
any requirement in this section, except those that 
afford a benefit to the complainant, such as the right to 
receive copies of all endorsements and to rebut any 
adverse matter submitted to or discovered by the 
GCMA or any intermediate endorsers. See subsection 
0307e. 

0307 CONSIDERATION OF THE 

COMPLAINT BY THE OFFICER 
EXERCISING GENERAL COURT- 
MARTIAL AUTHORITY (GCMA) 

a. Review of the complaint . Upon receipt of the 
complaint, the GCMA shall review it to ensure that; 

(1) the alleged wrong is a proper subject of a 
complaint of wrongs (see subsections 0303f and 
0304a); 

(2) the requested redress is proper (see subsection 
0304b); 

(3) the complaint is complete (see subsections 


0306c and e); 

(4) the complaint is timely (see subsection 0306a); 

(5) the complainant has requested redress from the 
respondent (see subsection 0306b); 

(6) the complaint has been properly forwarded (see 
subsection 0306d); and 

(7) the complaint does not join more than one 
complainant or more than one respondent. A 

checklist to assist in this review is provided at 
Appendix A-3-b. 

b. Improper or defective complaints . 

(1) If the complaint fails to satisfy the requirements 
of subsections 0305or b, does not allege a wrong 
which is a proper subject of a complaint of wrongs, or 
makes no proper request for relief, the GCMA shall 
return the complaint to the complainant with an 
explanation as to why it is outside the scope of this 
chapter. If appropriate, the GCMA should infonn the 
complainant about other channels available to resolve 
the alleged wrong. The GCMA shall forward a copy 
of the complaint and the letter to the complainant to the 
Secretary of the Navy via the Judge Advocate General. 

(2) If the complaint is incomplete or otherwise fails 
to satisfy the requirements of subsections 0306a, b, c, 
d, or g, unless the GCMA waives the deficiency under 
subsection 0306h, the GCMA shall return the 
complaint to the complainant with an explanation. 
The GCMA shall forward a copy of the complaint and 
the letter to the complainant to the Secretary of the 
Navy via the Judge Advocate General. 

c. Complaints _ alleging _ recommendations _as 

wrongs . 

If a complaint names a respondent who made a 
recommendation that was forwarded to another officer 
for final action, and that action has been completed, the 
officer who approved or acted on the recommendation 
in question shall be substituted as respondent in place 
of the original respondent. The complaint shall be 
forwarded, via the GCMA over the original respondent 
and via the substituted respondent, to the GCMA over 
that substituted respondent. That GCMA will review 
all actions taken and grant or deny redress in 


3-7 











accordance with this chapter. 

d. Inquiry . If the eomplaint is timely and eomplete, 
the GCMA shall inquire into its allegations. 

(1) The extent and nature of sueh inquiry is within 
the GCMA's discretion, and depends upon the 
seriousness of the allegations, the available time, and 
the exigencies of operations. The GCMA may appoint 
an investigating officer to inquire into the complaint. 

(2) The GCMA should review chapter II, chapter V 
and SECNAVINST 5211.5 series to determine 
whether Privaey Act statements are required. 

(3) The GCMA may request a eomplainant submit 
explanatory statements or other relevant documents. 

(4) Certain complaints may involve matters that are 
complex or technical and require expert evaluation. In 
such cases, the GCMA may seek expert evaluation 
from other naval organizations or eommands. 

e. Complainant's rebuttal and notifications . Prior to 
taking final action on a complaint, and subject to 
applicable security of classified material instructions, 
the GCMA shall ensure that the complainant has been 
provided a copy of all endorsements and enclosures 
forwarded with the complaint, as well as any adverse 
evidence developed by the GCMA inquiry, that was 
not raised in earlier endorsements or enelosures, and 
shall afford the complainant the opportunity to rebut 
any matter of an adverse nature contained therein. See 
Appendix A-3-e. Adverse matters include any 
information, evidenee, documents or opinions 
submitted by intermediate endorsers, including the 
respondent, that are in any way contrary to the 
complainant's contentions, even if they merely 
reiterate, highlight or recast matters previously 
submitted by the complainant. Complainants shall 
submit their rebuttals via their eommanding officers. 

f Delay due to court-martial . The GCMA may delay 
the examination into a complaint if there is an ongoing 
independent inquiry or proeeeding which is reasonably 
likely to result in elarifieation of the issues or redress 
of the alleged wrong. Such delay should not ordinarily 
extend beyond 10 days after action is completed in the 
related procedure, or beyond 90 days from the date the 
GCMA reeeives the complaint, whichever is earlier. 


In all other eases, exeept in unusual circumstanees, the 
GCMA shall aet on the complaint within 60 days of 
receipt. In the event of a delay caused by imusual 
cireumstanees, the report to the Secretary shall contain 
an explanation of the delay. 

g. Personal action by GCMA . The GCMA has 
primary responsibility for acting on the complaint. See 
subsection 0305c. The GCMA may not delegate such 
authority to a subordinate command or individual. The 
statement submitted to the Secretary must be signed 
personally by the GCMA, or, in that officer's absenee, 
by the officer officially acting in such capacity, with 
the signature block so indicating. 

h. Redress . The GCMA shall grant such redress as is 
appropriate and within his authority. 

(1) If the GCMA cannot actually effect the redress, 
the GCMA shall forward the file to the Secretary via 
the officer who can effect it, requesting 

that the specific relief be granted. The offieer so 
requested shall, except in the eases noted in 
subparagraph 0307h(2) below, effect the relief 

(2) If the officer requested to effect relief 
determines that the relief requested is not permitted by 
current regulations or otherwise prohibited by law, he 
or she may delay eompliance with the request until the 
final review and direction by the Secretary. In such 
cases, the officer's endorsement will set out the precise 
reasons the requested relief has been delayed. 

i. Complaint without merit . If the GCMA determines 
the complaint is without merit, the GCMA shall deny 
redress. 

j. Preparation and forwarding of GCMA's report . In 
all cases, the GCMA shall prepare and forward to the 
Secretary of the Navy, via the Judge Advoeate 
General, a report of the proceedings. The report will 
be in the format provided in Appendix A-3-d, and will 
inelude the eomplaint and all endorsements and 
enclosures. At a minimum, it should provide adequate 
facts to support the GCMA's conclusion, contain 
enough detail to allow Secretarial review, and identify 
a point of eontaet. The report will also enelose the 
signed GCMA cheeklist found at Appendix A-3-b. 
The GCMA will forward the report via the Judge 
Advocate General. Marine Corps activities will 
inelude the Commandant of the Marine Corps (Code 


3-8 










0303e. 


JA) as a via addressee. 

k. Written response to complainant . The GCMA 
shall advise the complainant in writing of the action 
taken on the complaint. The letter will specifically 
indicate which of the complainanfs allegations have 
merit and which are without merit and will either 
specify the relief granted or expressly deny the 
requested relief See Appendix A-3-e. The GCMA 
may satisfy this requirement by providing the 
complainant a copy of the GCMA's report to the 
Secretary of the Navy (without enclosures) prepared in 
accordance with Section 0307j. 

0308 ENDORSEMENTS BY OFFICERS 
SENIOR IN THE CHAIN OF 
COMMAND TO THE GCMA 

Officers senior in the chain of command to the GCMA, 
who themselves exercise general court-martial 
jurisdiction, may require subordinate commanders to 
submit the GCMA's report via them. Such officers 
may make comments or recommendations concerning 
the report to the Secretary, but they may not modify in 
any manner the report of the GCMA. 

0309 ACTION BY THE JUDGE ADVOCATE 
GENERAL 

a. When complaint has been acted upon . Upon 
receipt of the GCMA's report to the Secretary, the 
Judge Advocate General shall ensure that there has 
been substantial compliance with article 138, UCMJ, 
or article 1150, U.S. Navy Regulations (1990) . and this 
chapter. 

(1) If there has not been substantial compliance, the 
Judge Advocate General shall return the file to the 
GCMA for additional investigation or further action. 

(2) If there has been substantial compliance, the 
Judge Advocate General shall forward the complaint, 
with the actions thereon, to the Secretary of the Navy, 
with appropriate evaluations and recommendations. 

b. When the Assistant Secretary of the Navy 
(M&RA) is GCMA . The Judge Advocate General 
shall provide legal advice to the Assistant Secretary of 
the Navy (M&RA) when the Assistant Secretary of the 
Navy (M&RA) is the GCMA pursuant to section 


c. Referral to the General Counsel of the Navy . 
When the Judge Advocate General or an officer within 
his chain of command is the GCMA or respondent, or 
when the Judge Advocate General has provided legal 
advice under subsection 0309b, the Secretary may 
refer the case to the General Counsel of the Navy for 
formal evaluation and recommendations under this 
section. 

0310 REVIEW BY THE SECRETARY OF 
THE NAVY 

a. Scope . The Secretary of the Navy will review the 
action of the GCMA. The standard for review is 
whether the GCMA committed an abuse of discretion. 

b. Action where redress was granted . The Secretary 
of the Navy may set aside actions favorable to the 
complainant only if such redress was beyond the 
statutory or regulatory authority of the officer granting 
the redress. 

c. Action where redress was denied . The Secretary 
of the Navy may order further proceedings in the 
matter, or direct that all or a portion of the requested 
redress, or other appropriate redress, be granted. 

d. Notification to complainant . Upon review of a 
complaint, the Secretary shall notify the complainant 
whether such resolution is determined to be correct in 
law and fact and whether further action on the 
complaint will be taken. 

e. Finality . Action on a complaint by the Secretary 
is final, and the complainant will have exhausted his 
administrative remedies under article 138, UCMJ, or 
article 1150, U.S. Navy Regulations (1990) , as the case 
may be, under any of the following circumstances: 

(1) when the Secretary indicates that the action of 
the GCMA is approved, or states that review is final; 

(2) if the Secretary takes no action within 90 days 
of receiving notice that the GCMA has returned the 
complaint to the complainant because the complaint 
alleges a wrong which is not a proper subject of a 
complaint of wrongs, requests improper relief, or is 
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. IQ (general courts-martial authority over respondent at the time of the alleged wrong): 

3. VIA ADDRESSEES (intennediate 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(l) 











6. ENCLOSURES (documents necessary to support the complaint; explanatory information, if 
neeessary, regarding the alleged wrong; eopies of prior written request for redress; the answer to the 
request; and any fitness reports or evaluations about whieh a wrong is alleged): 

a. Number of additional pages attaehed:_ 


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 aetion, 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 
eompilation 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 Seeretary'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(l), 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(I).** 

□ 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 correcf ’ 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, DEC. 

□ 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(l) 



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-e? (§ 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 eomplainant? (§ 03061) 

□ Signed withdrawal letter forwarded to OJAG Code 13 with notice of withdrawal to SECNAV. 

□ If complaint returned to eomplainant beeause it is ineomplete or otherwise procedurally deficient, has 
eomplainant 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 eomplaint? (§ 0307f) 

□ Delay must be explained in letter to SECNAV. 

□ Report to SECNAV signed personally by GCMA or offieial “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 eourt-martial jurisdiction) 

To: (Complainant) 

Via: (Commanding Officer_) 

Subj: OPPORTUNITY TO REBUT ADVERSE MATTER REEATING TO THE 

COMPLAINT OF WRONGS UNDER ARTICLE 138, UCMJ (ARTICLE 1150, 

U.S. NAVY REGULATIONS (1990), BY (COMPLAINANT) 

Ref: (a) JAGMAN, Chapter III 

Enel: (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 he considered adverse to your case. In aecordanee 
with seetion 0307e of referenee (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 eommanding 
offieer, by (date eertain). After that date, I will eomplete my action on your complaint. 


(Name of GCMA) 


A-3-e 




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, (Artiele 1150, IT.S.NAVY 
REGULATIONS (1990)), BY (Rauk/Rate) (Name)(Service) 

Ref: (a) Article 138, UCMJ (Article 1150, U.S. Navy Regulations. (1990)) 

(b) Chapter III, JAGMAN 

Enel: (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), (eomplainant) makes the following allegations: 

(a) - (x). (Specifieally 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 eaeh allegation has merit or is without merit. Referenees to 
specifie seetions of the enclosures should be made where applicable.) 

4. In enclosure (1), (complainant) requests the following relief: 

(a) - (x). (Specifieally 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. 


(PERSONAEEY 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 (ARTICEE 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 diseussion, 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 OE DAMAGE TO PROPERTY 


0401 SCOPE 

This chapter provides for assessments against the pay 
of members of the naval serviee in satisfaetion of 
claims for property damage caused under certain 
cireumstances. Claims for damage, loss, or destmction 
of privately owned property caused by a person or 
persons in the naval serviee, are payable under Artiele 
139, UCMJ, only if such damage, loss, or destruction 
is caused by riotous eonduct, willful conduet, or acts 
showing such reckless or wanton disregard of the 
property rights of others that willful damage or dest¬ 
mction is implied. Acts of the type punishable under 
Article 109, UCMJ, are cognizable under Article 139, 
UCMJ. Charges against pay under these regulations 
shall be made only against the pay of persons shown to 
have been principal offenders or accessories. 

0402 STATUTORY AUTHORITY 

Article 139, UCMJ, redress of injuries to property, is 
the basis for this chapter. 

0403 CLAIMS NOT COGNIZABLE 

The following claims are not cognizable under this 
chapter. 

a. Claims resulting from simple negligence. 

b. Claims of subrogees. 

c. Claims for personal injury or death. 

d. Claims arising from acts or omissions within the 
scope of employment of the offender. 

e. Claims for reimbursement for damage, loss, or 
destmction of Government property. 


0404 LIMITATION ON CLAIMS 

a. Time limitations . A claim must be submitted 
within 90 days of the incident giving rise to it. 

b. Acts of property owner . When the acts or 
omissions of the property owner, his lessee, or agent 
were a proximate contributing factor to the loss or 
damage of the property, assessments will not be made 
against members of the naval service in excess of the 
amount for which they are found to be directly respon¬ 
sible, i.e., comparative responsibility for the loss will 
be the standard for detennining financial 
responsibility. 

c. Only direct damages considered . Assessment will 
be made only for direct physical damages to the prop¬ 
erty. Indirect, remote, or inconsequential damage will 
not be considered. 

0405 COMPLAINT BY THE 
INJURED PARTY AND 
INVESTIGATION 

a. Contents of the claim . A claim shall contain a 
statement setting forth the amount of the claim, the 
facts and circumstances surrounding the claim and any 
other infonnation that will assist in the investigation 
and resolution of the matter. When there is more than 
one complaint resulting from a single incident, each 
claimant must file a claim separately and individually. 
The claim shall be personally signed by the claimant or 
his duly authorized representative or agent. 

b. Misconduct by members of the command . Where 
the claim alleges misconduct by members of the com¬ 
mand, a commanding officer to whom the claim is 
submitted shall convene an investigation under this 
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 infonnation 
about the matter to the member's commanding officer 


4-2 







who will convene an investigation into the incident. 
Where the command of the alleged offenders cannot 
be determined, the claim and supporting materials shall 
be forwarded to the Chief of Naval Personnel or the 
Commandant of the Marine Corps, as appropriate, for 
aetion. 

c. Investigation . The investigation shall inquire into 
the circumstances surrounding the elaim, gather all 
relevant information about the matter (answering the 
who, what, where, when, why, and how questions) and 
make findings and opinions, as appropriate, about the 
validity of the claim under Artiele 139, UCMJ, and 
these regulations. The investigation shall determine 
the amount of damage suffered by the property owner. 

d. Recommendations . The investigation shall make 
recommendations about the amount to be assessed 
against the pay of the responsible parties. If more than 
one person is found responsible, recommendations 
shall be made about the assessments against all 
individuals. 

0406 ACTION WHERE OFFENDERS ARE 
MEMBERS OF ONE COMMAND 

a. Aetion by commanding officer . The commanding 
officer shall ensure the alleged offenders are shown the 
investigative report and are advised they have 20 days 
within which to submit a statement or additional 
information on the incident. If the member declines to 
submit information, he shall so state in writing within 
the 20-day period. The commanding officer shall 
review the investigation and detennine whether the 
claim is properly within the provisions of Article 139, 
UCMJ, and these regulations, and whether the faets 
indieate responsibility for the damage on members of 
the command. If the commanding officer finds the 
claim payable under these regulations, he shall fix the 
amount to be assessed against the offenders. 

b. Review . If the commanding officer has authority 
to convene a general eourt-martial, no further review 
of the investigation is required as to the redress of 
injuries to property. If the commanding officer does 
not have general eourt-martial eonvening authority, the 
investigation and the commanding officer's 
recommendation thereon shall be forwarded to the 


officer exercising general court-martial jurisdiction 
(OEGCM) over the command for review and action on 
the claim. The OEGCM action on the claim shall be 
eommunicated to the commanding officer who will 
take action consistent with the detennination. 

c. Charge against pay . Where the amount does not 
exceed $5,000.00, the amount ordered by the 
eommanding officer shall, as provided in the Navy 
Comptroller Manual, be charged against the pay of the 
offenders and the amounts so colleeted will be paid to 
the claimant. Where the amount exeeeds $5,000.00, 
the claim, the investigation, and the commanding 
officer's recommendation shall be forwarded for 
review prior to checkage to Headquarters, U.S. Marine 
Corps (Code JAR) or the Judge Advocate General 
(Code 15), as appropriate. The amount eharged in any 
single month against the pay of offenders shall not 
exceed one-half of basic pay, as defined in Rule for 
Courts-Martial 1003(b)(2), Manual for Courts-Martial. 
The action of the commanding officer in ordering the 
assessment shall be conclusive on any disbursing 
officer for payment to the claimant of the damages 
assessed, approved, charged, and eollected. 

0407 ACTION WHERE OFFENDERS 
ARE MEMBERS OF 
DIFFERENT COMMANDS 

a. Action by eommon superior . The investigative 
report shall be forwarded to the eommon superior 
exercising general eourt-martial jurisdiction over the 
commands to which the alleged offenders are assigned. 
That officer shall ensure the alleged offenders are 
shown the investigative report and permitted to 
comment on it, should they desire, before action is 
taken on the claim. That officer shall review the 
investigation and determine whether the claim is 
properly within the provisions of Artiele 139, UCMJ, 
and these regulations, and whether the facts indicate 
responsibility for the damage on members of his 
command. If the claim is found payable under these 
regulations, he shall fix the amount to be assessed a- 
gainst the offenders and direct the appropriate com¬ 
manding officers to take action accordingly. 

b. Forwarding to SECNAV (JAG) . Where it is not 
practieal 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 OE GOVERNMENT INEORMATION 


0501 SCOPE 

a. Overview 

b. FOIA requests 

c. Privaey Aet requests 

d. Request for litigation purposes 

PART A - FREEDOM OF 

INFORMATION ACT 

0502 POLICY 

0503 BACKGROUND 

a. Publication and public inspection 

b. Disclosure upon request 

0504 DEFINITIONS 

a. Agency record 

b. FOIA request 

c. Release authority 

d. Initial denial authority (IDA) 

0505 RESPONSIBILITIES 

a. Minimum requirements 

b. Identify the records requested 

c. Requests requiring special handling 

d. Time limits 

0506 EXEMPTIONS 

a. Exemption (b)(1) 

b. Exemption (b)(2) 

c. Exemption (b)(3) 

d. Exemption (b)(4) 

e. Exemption (b)(5) 

f. Exemption (b)(6) 

g. Exemption (b)(7) 

h. Exemptions (b)(8) and (b)(9) 


0507 PUBLIC INTEREST 


a. FOIA-type public interest 

b. Privacy interest 

0508 MAILING LISTS 

a. Requests for names and home 
addresses 

b. Requests for names and duty 
addresses 

0509 NONJUDICIAL 

PUNISHMENT RESULTS 

0510 ACTION BY RELEASE 
AUTHORITY 

a. Records releasable in their entirety 

b. Records not available 

c. Examination of records 

d. Misaddressed request 

e. Denial 

0511 ACTION BY IDA 

a. Records under IDA's cognizance 

b. Partial/total denial 

0512 FEES 

PART B - PRIVACY ACT 

0513 POLICY 

0514 BACKGROUND 

a. Publication in the Federal 
Register 

b. Disclosure to the public 

c. Right of access 

d. Amendment 


0515 DEFINITIONS 


5-1 




a. Agency 

b. Individual 

c. Record 

d. System of records 

e. Access 

f Disclosure 

g. Official use 

h. Routine use 

i. System manager 

0516 RESPONSIBILITIES 

a. System notices 

b. Request for access or amendment 

c. Exempt systems of records 

d. Denial authority 

0517 PROCEDURES 

a. Requesting individual 

b. System manager 

c. Blanket requests 

d. Additional information necessary 

e. Denying a request 

f. Time limits 

g. Granting access 

h. Granting amendment 

i. Denying the request 

j. Denial authority 

0518 DISCLOSURE TO OTHERS 

a. Intra-agency 

b. Freedom of Information Act 

c. Routine use 

d. Statistical research or reporting 

e. Civil or criminal law enforcement activity 

f. Congress or members of Congress 

g. Court of competent jurisdiction 

0519 DISCLOSURE ACCOUNTINGS 
0520 COLLECTION OE INEORMATION 

a. Personal information 

b. Collect from the individual 

c. Privacy Act statement 

d. Social Security numbers 

0521 SAEEGUARDING 

PERSONAL INEORMATION 


PART C ~ RELEASE OF OFFICIAL 
INFORMATION AND 
TESTIMONY FOR 
LITIGATION PURPOSES 

0522 POLICY 

0523 RELATIONSHIP WITH FOIA AND THE 

PRIVACY ACT 

0524 DEFINITIONS 

a. Request or demand (legal process) 

b. DON personnel 

c. Litigation 

d. Official information 

0525 RESPONSIBILITIES 

a. General 

b. United States is not a party 

c. Matters assigned to the Judge Advoeate 
General 

d. Misdirected requests 

0526 RECORDS IN THE CUSTODY OF THE 

NATIONAL PERSONNEL RECORDS 

CENTER 

0527 MEDICAL AND OTHER RECORDS OF 

CIVILIAN EMPLOYEES 

0528 PRODUCTION OF OFFICIAL RECORDS 

IN THE ABSENCE OF A COURT ORDER 

a. General 

b. Release of JAG Manual 
investigations, eourt-martial reeords, 
Article 69 and 73 petitions, and 
Artiele 138/1150 eomplaints of wrongs 

e. Affirmative claims files 

d. Accounting disclosures from systems of 
records 

0529 CERTIFICATES OF FULL FAITH AND 

CREDIT 


5-2 


CHAPTER V 


RELEASE OF GOVERNMENT INFORMATION 


0501 SCOPE 

a. Overview . This chapter discusses the three 
principal types of requests for information or records 
likely to be received by naval activities and the 
procedures to follow upon receipt of a request. It does 
not apply to routine naval correspondence or to 
congressional inquiries, and should not supersede 
governing naval and Department of Defense directives. 
Commands receiving a request for records or 
information from members of the public should 
examine the request and determine if it cites or 
implicates the Freedom of Information Act (FOIA), 
Privacy Act, or related naval or Department of Defense 
regulations. Records or information may also be 
requested for litigation purposes—often to bring suit 
against the Navy. The chapter does not apply to 
requests for prepublication review of documents. This 
chapter is designed to be a ready reference guide and 
is only intended to augment the controlling 


instructions. Users are encouraged to review the 
controlling directives (listed in sections 0502, 0513, 
and 0522) for more detailed information. See 
SECNAVINST 5510.25A and SECNAVINST 
5720.44A. 

b. FOIA requests . If the requester cites or 
implicates the Freedom of Information Act, 5 U.S.C. § 
552, SECNAVINST 5720.42(series), DODDIR 
5400.7 of 29 Sep 97, or DODDIR 5400.7-R of 4 Sep 
98, refer to Part A of this chapter. 

c. Privacy Act requests . If the requester cites the 
Privacy Act, 5 U.S.C. § 552a, SECNAVINST 
5211.5D, DODDIR 5400.11 of 4 Aug 75, or requests 
information about himself or herself retrievable by the 
requester's name or other personal identifier, refer to 
Part B of this chapter. 

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. § 
552, generally provides that all persons, including 
citizens and residents of other countries, have a right of 
access to Federal agency records, unless such records 
are exempt from disclosure. SECNAVINST 5720.42E 
(series) and SECNAVINST 5720.45A contain 
Department of the Navy policy guidance on FOIA. 
SECNAVINST 5720.42 (series) addresses FOIA 
exemptions, time limits for responses, formal and 
informal extension of time limits, appeals procedures, 
fee schedules, and includes in enclosure (4) sample 
format responses to respond to FOIA requests. 
SECNAVINST 5720.45A directs that the public be 
provided, to the maximum extent possible, information 


on the organization and functions of the Navy and the 
policies and procedures by which those functions are 
performed in relation to the public. 

0503 BACKGROUND 

a. Publication and public inspection . The 
Freedom of Information Act requires publication in 
the Federal Register of information that affects the 
public, e.g., descriptions of agency organization, 
functions, procedures, substantive rules, and 
statements of general policy. Materials such as 
opinions rendered in the adjudication of cases, 
specific policy statements, and certain administrative 


5-3 







staff manuals must be made available for public 
inspection. In addition, all records, regardless of 
form or format, whieh have been released under the 
FOIA, and that eommands have determined have 
become or are likely to become the subjeet of 
subsequent requests for substantially the same 
records, must be made available to the public. 
Records falling in these categories that are created on 
or after 1 November 1996, must be made available to 
the public electronically, e.g., posted on a command 
website. 

b. Disclosure upon request . All other Navy 
records—those not required to be published in the 
Federal Register or made available for public 
inspection—are subject to disclosure upon receipt of a 
proper request for access, unless exempt. 

0504 DEFINITIONS 

a. Agency reeord . An agency record includes 
all books, papers, maps, photographs, machine 
readable materials, or other documentary materials, 
regardless of physical form or characteristics, made or 
received by an agency of the United States 
Government under Federal law or in connection with 
the transaction of agency business and in the agency's 
control at the time the FOIA request is made. An 
agency record is not; 

(1) Objects or articles, such as structures, 
parts from wrecked aircraft and ships, furniture, 
paintings, sculpture, three-dimensional models, and 
vehicles and equipment. 

(2) Anything not a tangible record, such as 
an individual's memory or oral communication. 

(3) Computer software, if not created or used 
as primary sources of information about organizations, 
policies, functions, decisions, or procedures of the 
agency. 

(4) Personal records not subject to Navy 
creation or retention requirements, created or main¬ 
tained primarily for a Navy employee's personal 
convenience, and not distributed to other agency 
employees for their official use. For example, a 
supervisor's personal notes on an employee's perform¬ 
ance, not required to be maintained and used solely as 
a memory aid in preparing evaluations and then 


destroyed, is not an agency record. 

b. FOIA request . A written request, either citing 
or reasonably implicating the FOIA, 5 U.S.C. § 552, 
SECNAVINST 5720.42 (series), DODDIR 5400.7 of 
29 Sep 97, or DODDIR 5400.7-R of 4 Sep 98. It 
must describe the record(s) requested sufficiently to 
enable knowledgeable naval personnel to identify the 
desired records with a reasonable amount of effort. 
Also, the request must address the requester's 
willingness to pay fees. 

c. Release authority . Commanding officers and 
heads of Navy and Marine Corps activities authorized 
to furnish records. 

d. Initial denial authority (IDA) . An official who 
may withhold records under FOIA, either in whole or 
in part, based on the FOIA exemptions. IDA's may 
also grant or deny requests for reductions or fee 
waivers. See paragraph 6e of SECNAVINST 5720.42 
(series) for a list of IDA's. 

0505 RESPONSIBILITIES 

a. Minimum _ requirements . The minimum 

requirements for a FOIA request are: (I) the request 
cites or implicates the FOIA; (2) contains a reasonable 
description of the information or records requested; 
and (3) contains a clear statement of the requester's 
willingness to pay fees, a willingness to pay fees up to 
a stated amount, or a request for a fee waiver. If the 
FOIA request does not meet these requirements, the 
naval activity should answer the inquiry, within 10 
working days, to inform the requester of the contents 
of a proper request. 

b. Identify the records requested . Coiumands 
must search their filing systems and existing retrieval 
systems if the description provided by the requester 
enables naval personnel to locate the records with 
reasonable effort. 

(1) FOIA does not authorize "fishing 
expeditions," nor are commands required to respond to 
blanket requests for all documents. The naval activity 
shall notify the requester if the description does not 
reasonably describe the records sought and provide 
guidance on the specificity required to begin a search. 
Commands must make reasonable efforts by manual or 
automated means to search for the requested records 


5-4 











that are in electronic format. For additional guidance, 
see paragraph 7c of SECNAVINST 5720.42 (series). 

(2) If the requested record was originated by 
another activity, the receiving activity shall not release 
or deny such records without consulting the other 
naval activity. The receiving activity shall coordinate 
with that activity before referring the FOIA request 
and copies of the requested documents for direct 
response. See subparagraph 0505c. The requester 
shall be notified of this referral. 

(3) A naval activity does not have to create or 
compile a record. A record may be compiled if it is a 
more useful response to the requester, or a lessor 
burden to the naval activity than providing existing 
records, and the requester does not object. Commands 
must provide a requested record in the form or format 
requested if the record is reasonably reproducible in 
the form or format requested. Costs of creating or 
compiling a record may not be charged to the requester 
unless such a fee is equal to or less than the fee which 
would be charged for providing the existing record. 

c. Requests requiring special handling . Detailed 
instructions for records requiring special handling are 
in paragraph 14 of SECNAVINST 5720.42 (series). 
The most common requests requiring special handling 
are briefly outlined below: 

(1) Classified records . If the existence or 
nonexistence of the requested infonnation is classified, 
the naval activity shall refuse to confirm or deny its 
existence or nonexistence. If the documents requested 
are classified by another agency, contain infonnation 
classified by another agency, or if the head of the 
agency is not the classifying authority, the agency shall 
refer the request and copies of the requested docu¬ 
ments to the originating agency or classification 
authority. 

(2) Naval _ Criminal _ Investigative _ Service 

reports . Requests should be forwarded to the Naval 
Criminal Investigative Service, Washington Navy 
Yard, DC 20374-5000, and the requester so notified. 

(3) Courts-martial records . Requests should 
be referred to the Office of the Judge Advocate 
General, (Code 40), 1322 Patterson Ave, SE, Suite 
3000, Washington Navy Yard, DC 20374-5066, and 
the requester so notified. 


(4) JAG manual investigations . Requests 
shall be forwarded to the following release authorities, 
depending upon the type of investigation convened: 

(a) For a command investigation, to the 
GCMCA over the command convening the 
investigation. 

(b) For a litigation-report investigation, to the 
Judge Advocate General, Code 15. 

(c) For a court or board of inquiry, to the 
Echelon II commander over the command convening 
the court or board of inquiry. 

(5) Mishap investigation reports . Requests should 
be forwarded to Commander, Naval Safety Center, 
(Attn: Code 03), 375 A Street, Norfolk, VA, 23511- 
5796 and the requester so notified. 

(6) Nuclear and _ related _ information . FOIA 

requests for nuclear related infonnation shall be 
processed under SECNAVINST 5510.36 (series). 
Dissemination of unclassified material on the physical 
protection of special nuclear material is prohibited 
when dissemination could reasonably be expected to 
have a significant adverse effect on the health and 
safety of the public, or the common defense and 
security, by significantly increasing the likelihood of 
the: (1) illegal production of nuclear weapons, or (2) 
theft, diversion, or sabotage of nuclear materials, 
equipment, or facilities. 

(7) Misdirected _ requests . Misdirected/ 

misaddressed requests shall be promptly readdressed 
and forwarded to the cognizant or originating activity 
for action and the requester so notified. 

d. Time limits . The responsible naval activity 
has 20 working days from receipt to respond to a 
FOIA request, excluding weekends and holidays. If 
the naval activity cannot respond within 20 days, it 
may: 

(1) Inform the requester of the reasons for the 
delay, that the delay may be treated as an initial denial 
of the request, and the requester shall be informed of 
the appeal rights. This is considered a formal 
extension of time and requires the signature of an IDA; 
or 


5-5 












(2) Negotiate an informal extension of time with 
the requester that is mutually agreeable. This does not 
require the IDA's signature. 

(3) In the case of a significant number of requests 
that preclude a response determination within 20 days, 
commands shall process the requests in a multi-track 
system based on the amount of time and work involved 
in processing the request, and whether the request 
qualifies for expedited processing. A multi-track 
system shall have, at a minimum, three tracks. These 
tracks shall consist of simple cases, complex cases, and 
cases that qualify for expedited processing. Within 
each track, all requests shall be processed on a first-in, 
first-out basis. See SECNAVINST 5720.42 (series) 
for further guidance on multi-track processing and 
expedited processing. 

(4) For additional guidance, see paragraph 8 of 
SECNAVINST 5720.42 (series). 

0506 EXEMPTIONS 

A naval record may be withheld from disclosure if 
exempt. For additional guidance, see enclosure (4) of 
SECNAVINST 5720.42 (series). 

a. Exemption (b)(1) exempts those records 

properly and currently classified. 

b. Exemption (b)(2) exempts those records 

related solely to the internal personnel rules and 
practices of an agency, such as mles, regulations, 
orders, manuals, directives, and instmctions. Records 
withheld include: 

(1) Internal matters of relatively trivial nature 
created primarily for internal house keeping purposes 
(low (b)(2)). The administrative burden of release 
must be weighed against the public interest in the 
requested information. Section 0507 below contains a 
discussion of FOIA-type public interest. 

(2) Substantive internal matters that would 
allow circumvention of a statute or agency regulation 
(high (b)(2)). Examples include classification guides, 
operating manuals for investigators, emergency base 
evacuation procedures, and examination questions and 
answers used in training courses. 

c. Exemption (b)(3) exempts records containing 


matters specifically exempted by statute, such as 
medical quality assurance records and special nuclear 
material information. The Privacy Act is not an 
exemption statute under (b)(3). 

d. Exemption (b)(4) exempts records containing 
trade secrets or commercial or financial infonnation, 
that a naval activity receives from outside the Govern¬ 
ment, with the understanding that the information will 
be retained as privileged or confidential. Examples 
include infonnation received in confidence for a con¬ 
tract, bid, proposal, or scientific or manufacturing 
process. 

e. Exemption (b)(5) exempts those records 
containing internal advice, recommendations, and 
subjective evaluations pertaining to the decision¬ 
making process. Reasonably segregable factual 
portions must be released unless they are so inter¬ 
twined with exempt information that release would 
reveal the exempt information or be detrimental to the 
decision-making process. Direction or orders from a 
superior to a subordinate must be released if it is policy 
guidance or a final agency decision. If the (b)(5) 
material is later adopted as the agency final opinion, it 
is not exempt. If the (b)(5) material is incorporated by 
reference into a final agency opinion, it will also lose 
its exempt status. Examples of exempt infonnation 
include nonfactual portions of staff papers, evalua¬ 
tions, or investigations, advice, suggestions, or 
evaluations, and information prepared in anticipation 
of administrative proceedings or litigation. 

f. Exemption (b)(6) exempts information in 
personnel and medical files, and similar information in 
other files, if release would be a clearly unwarranted 
invasion of personal privacy. The public interest in the 
requested infonnation must be balanced against the 
privacy interest threatened. See paragraph 14b(2) of 
SECNAVINST 5211.5D for personal information 
releasable under FOIA. Paragraph 0507 below 
contains a discussion of FOIA-type public interest. 

g. Exemption (b)(7) exempts records and 
information compiled for civil, criminal, or military 
law enforcement purposes. Examples of information 
or records that may be exempt are witness statements 
or material developed during an investigation. If the 
subject of the law enforcement record requests the 
record, it may be withheld only under SECNAVINST 
52I1.5D. Under limited circumstances, the naval 
activity may treat the record as not subject to FOIA. 


5-6 


Naval activities believing they have a request for a law 
enforcement record must refer to the section covering 
5 U.S.C. § 552(b)(7) found at paragraph 4(f) of 
enclosure (4) to SECNAVINST 5720.42 (series). 

h. Exemptions (b)(8) and (b)(9) do not apply to 
naval activities. 

0507 PUBLIC INTEREST 

a. FOIA-type public interest . The public interest 
to be considered under FOIA is the public's interest in 
obtaining official information that sheds light on the 
agency's performance of its statutory duties. In the 
typical case in which one private citizen is seeking 
information about another, the requester does not 
intend to discover anything about the conduct of the 
agency that has possession of the records, and a 
response to the request would not shed any light on the 
conduct of the Government agency or official. In such 
a case where no FOIA-type public interest exists, 
release of any private information about an individual 
would constitute a clearly unwarranted invasion of 
personal privacy. In evaluating the public interest 
apparent in release of the requested records, neither the 
identity of the requester nor the purpose for desiring 
the request are relevant. 

b. Privacy interest . A privacy interest may exist 
in personal information even though the infonnation 
has been made available to the general public at some 
place and time. If personal information is not freely 
available from sources other than the Federal 
Government, the person to whom that infonnation 
pertains has a privacy interest in its nondiselosure. 
Often, the very faet that the Federal Government 
expended funds to prepare, index, and maintain 
records containing personal information and the fact 
the requester invokes FOIA to obtain the private 
information indicate that the information is not freely 
available. 

0508 MAILING LISTS 

Most naval activities receive FOIA requests for 
mailing lists—names and home addresses or names and 
duty addresses. 

a. Requests for names and home addresses . 
Requests for mailing addresses and home addresses 
should be denied as a elearly unwarranted invasion of 
personal privacy. This includes requests for base 


quarters/housing addresses without the oceupanfs 
name. 

b. Requests for names and duty addresses 

(1) A FOIA request for a list of names and duty 
addresses of members attached to units that are 
stationed in foreign territories, routinely deployable, or 
sensitive must be denied as exempt from disclosure 
under 10 U.S.C. § 130b. Diselosure is a security threat 
to those members because it reveals information about 
their involvement in military actions, the type of naval 
unit, and their presence or absence from their 
households. Release aids the targeting of members and 
their families by terrorists and other persons opposed 
to the national policy. Exceptions must be coordinated 
with Office of the Chief of Naval Operations 
(N09B30) or the CMC (ARSE), as appropriate. Units 
eovered are: 

(a) Those outside the 50 states. District of 
Columbia, Commonwealth of Puerto Rico, Guam, U.S. 
Virgin Islands, and American Samoa. 

(b) Routinely deployable units that nor¬ 
mally deploy from home port or permanent station on a 
periodic or rotating basis to meet operational require¬ 
ments or participate in scheduled exercises, ineluding 
routinely deployable ships, aviation squadrons, 
operational staffs, and all units of the Fleet Marine 
Force. It does not include ships undergoing extensive 
yard work or whose primary mission is support 
training, e.g. yard craft and auxiliary aircraft landing 
training ships. 

(c) Units engaged in sensitive operations 
are those primarily involved in training for or eonduct 
of covert, clandestine, or classified missions, including 
units primarily involved in eollecting, handling, 
disposing, or storing elassified information or mate¬ 
rials. 

(2) Lists of names and duty addresses, not 
covered by the above policy, are not exempt. Lists 
may no longer be withheld under exemption (b)(2). 
Prepublished directories and organizational charts must 
also be released. There is no administrative burden if 
the requested materials are already available in the 
form requested. 

0509 NONJUDICIAL PUNISHMENT 
RESULTS 


5-7 






Information on nonjudicial punishment will not 
normally be disclosed to the public under FOIA. This 
is because the public interest in the routine 
administrative disposition of employee misconduct 
rarely outweighs the individual's privacy interest in the 
matter (see section 0507 for definition of "public 
interest"). In order to proteet the personal privaey of 
individuals receiving nonjudicial punishment, 
cormnands receiving requests for individual 
nonjudicial punishment records should forward the 
request to their cognizant initial denial authority with 
the recommendation that the existence of the records 
be neither confirmed nor denied, except when the 
requester is the individual upon who nonjudicial 
punishment was imposed. In that situation, the request 
is processed under section 0517. Otherwise, disclosure 
should only be considered when the events leading to 
the nonjudicial punishment are particularly news¬ 
worthy or the case involves a senior official abusing 
the public trust through office-related misconduct, such 
as embezzlement, fraud, or misuse of Government 
property. Publication of the results of NIP to the 
command, in accordance with section 0115 of this 
Manual, shall not be considered a disclosure as defined 
in section 0515 of this Manual and is not controlled by 
this paragraph. 

0510 ACTION BY RELEASE 
AUTHORITY 

Release authorities shall take one of the following 
actions within 20 working days after receiving a FOIA 
request: 

a. Records releasable in their entirety . If the 
requested records are releasable in their entirety, 
forward the requested records stating: whether fees 
were waived or reduced; what fees are due; or whether 
fees must be paid before the records are released. 

b. Records not available . If the requested records 
are releasable in their entirety but not yet available, 
notily the requester that the request has been approved 
and the requested records will be forwarded by a 
specified date. 

c. Evaluation of records . If the request for 
examination of records has been approved, notify the 
requester of the time and place. 


d. Misaddressed request . If the request has been 
misaddressed or the records are properly held by 
another naval activity, promptly refer the request and 
notify the requester. 

e. Denial . If the request must be denied in whole 
or in part, advise the requester that the request has been 
referred to higher authority (provide name and address 
of IDA), for a release determination and direct 
response. The letter to the IDA shall include a copy of 
the request, a copy of the letter to the requester, all 
documents responsive to the request, and a recom¬ 
mendation as to partiaFtotal denial with the rationale 
for the exemptions claimed. In this situation, the 
release authority will not release any documents to the 
requester. 

0511 ACTION BY THE IDA 

a. Records under IDA’s cognizance . When an 
IDA receives a FOIA request for records under that 
officer's cognizance, the IDA shall respond as in 
section 0505 above. 

b. Partial/total denial . When a FOIA request is 
forwarded to the IDA with a recommendation for 
partial/total denial, the IDA: 

(I) Shall respond within 20 working days. If 
a response cannot be made within that time frame, the 
following options are available: 

(a) Inform the requester of the reasons for 
the delay, that the delay may be treated as an initial 
denial of the request, and the requester shall be 
informed of the appeal rights. This is considered a 
formal extension of time; or 

(b) Negotiate an informal extension of 
time with the requester that is mutually agreeable. 
This does not require the IDA's signature. 

(2) Shall determine if the record contains 
information exempt from FOIA and inform the 
requester of the exemptions claimed. If a request is 
denied, a reasonable effort must be made to estimate 
the volume of denied records, and then inform the 
requester of the estimate, unless such an estimate 
would harm an interest protected by the exemptions 
pursuant to which the denial is made. Reasonably 
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/reduetion 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/reduetion of fees, the 
release of the records may be withheld until the fee is 
paid or the appellate authority grants a 
waiver/reduetion of fees. 

0512 FEES 

Enelosure (3) of SECNAVINST 5720.42 (series) 
contains fee guidelines. 


PART B--Privacy Act 


0513 POLICY 

The Privacy Act, 5 U.S.C. § 552a, applies to docu¬ 
ments and records in a system of records maintained 
by an ageney from which information is retrieved by 
the person's name or other personal identifier, such as a 
Social Security number. The Act balances the 
Government's need to maintain information about 
individuals against the right of individuals to be 
protected from unwarranted invasions of their privaey 
by Government colleetion, maintenance, use, and 
diselosure of personal infonnation. SECNAVINST 
5211.5D contains Department of the Navy policy 
guidance on the Privacy Act and prescribes procedures 
for notifying individuals of a system of records 
pertaining to them, granting aeeess to the subjeet of the 
records, reviewing requests to amend records, 
disclosing personal information to third parties, and 
safeguarding personal information. 

0514 BACKGROUND 

a. Publication in the Federal Register . Naval 
activities may not maintain records retrievable by name 
or personal identifier unless a system notiee has been 
published in the Federal Register . Maintaining an 
unpublished system of records is a criminal violation. 
OPNAVNOTE 5211 contains published Department 
of the Navy system notiees. 

b. Disclosure to the publie . Information in a 


Privacy Act system of reeords may not be disclosed to 
the public, imless: the subject of the record consents, 
the disclosure is pursuant to a routine use, released 
under one of the twelve statutory exceptions, for an 
offieial use, or by order of a court of competent 
jurisdietion. 

c. Right of access . An individual has a right of 
access to a reeord maintained under the individual's 
name or personal identifier, imless the record is exempt 
from or not subjeet to the Privacy Act. 

d. Amendment . An individual may request 
amendment, correction or deletion of a record 
pertaining to himself. If the request is denied, the 
individual may file a "statement of dispute," that must 
be disclosed with such records. See section 0518h 
below. 

0515 DEFINITIONS 

a. Agency . The Department of Defense is the 
agency; all naval activities are subject to the Privaey 
Act. 

b. Individual . A living U.S. citizen or alien 
lawfully admitted for permanent residence; or a 
member of the U.S. Navy, including a minor. The 
legal guardian of an individual or the parent of a minor 
has the same rights as the individual. 


5-9 










c. Record . Any item, collection, or grouping of 
information about an individual maintained by an 
agency by name or personal identifier. Purely private 
notes —such as personal memory refreshers—not 
required or used by the agency are not agency records. 

d. System of records . A group of records from 
which information is retrieved by name or personal 
identifier. The capability of retrieving a record by 
name or personal identifier, such as by a computer 
search, does not create a system of records subject to 
the Privacy Act. 

e. Access . An individual or authorized agent, 
reviewing or obtaining copies of records, pertaining to 
himself or herself, that are part of a system of records. 

f. Disclosure . Conveying information from a 
Privacy Act record to an organization or individual, 
not the subjeet of the record. 

g. Official use . Officials of the Department of 
Defense and the Navy with a demonstrated need for 
any record to complete a mission or function of the 
Department, or disclosure prescribed or authorized by 
a directive. Known as "on a need-to-know basis." 

h. Routine use . Disclosure of a record outside the 
Department of Defense for a use compatible with the 
purpose for which the information was collected and 
maintained. The routine use must be in the published 
system notiee. 

i. System manager . Official with responsibility 
for records in a system, as indicated in the published 
system notice. 

0516 RESPONSIBILITIES 

a. Systems notiees . Systems notices are published 
in the Federal Register and OPNAVNOTE 5211. 
Proposed new, altered, or amended systems of records 
shall be submitted to Chief of Naval Operations 
(N09B30) or Commandant of the Marine Corps (MB), 
as appropriate. For additional guidance, see paragraph 
9 of SECNAVINST 5211.5D. 

b. Request for access or amendment . The system 
manager must establish and make available upon 
request, rules on requests for access or amendment that 
conform to paragraph 6 and enclosures (2) and (3) of 
SECNAVINST 5211.5D. 


(1) The official with custody of the record may 
grant access to the requested record even if he is not 
the system manager. 

(2) Only officials designated as denial authori¬ 
ties in paragraph 6e of SECNAVINST 5211.5D, may 
deny a request for access. 

(3) Blanket requests for notification and/or 
access to all systems of records within the Navy are not 
honored. See section 0517c below. 

c. Exempt systems of records . The system 
manager must publish in the Federal Register a notice 
of exempt systems. There are two categories of 
records exempt from access—a general exemption and 
a specific exemption. 

(1) The general exemption excuses a system 
of records from most access provisions of the Act; it is 
available only for records maintained by the CIA or an 
agency whose principal function is law enforcement. 

(2) The specific exemption applies to investi¬ 
gatory material compiled for law enforcement pur¬ 
poses not within the general exemption. Enclosure 
(11) of SECNAVINST 5211.5D lists exempt systems 
of records. 

d. Denial authority . Only authorities in para¬ 
graph 6e of SECNAVINST 5211.5D may deny 
requests for notification, access, or amendment, when 
the records relate to matters within their command, or 
technical or administrative responsibility. 

0517 PROCEDURES 

a. Requesting _ individual . The requesting 

individual should request the records in writing, 
providing the name of the system of records, full name, 
Social Security number, and a signed release, if 
necessary. 

b. System manager . The system manager or 
other responsible official shall: 

(1) Verify the identity of the requesting in¬ 
dividual, such as by employee or military identification 
card or driver's license, as the subject of the record. If 
a written request, identity may be verified by the 


5-10 




















requester providing minimum identifying data, sueh as 
date of birth. If the information is sensitive, additional 
verification of identity may be required. See paragraph 
1 la(4)(b) of SECNAVINST 5211.5D. 

(2) Grant access to the requested record 
unless exempt. 

c. Blanket _ requests . Requests seeking 

notification or access to all Navy systems of records 
shall not be honored. For example, the requester may 
seek all records maintained by the requester's name or 
personal identifier. A command receiving such a 
request should inform the requester that: 

(1) Requests for notification and/or access 
must be made to the system manager for the record 
system, as identified in the Federal Register , and 

(2) Requests must either designate the par¬ 
ticular system to be searched or provide sufficient 
information for the system manager to determine the 
appropriate system. 

d. Additional information necessary . The system 
manager or other custodial official shall inform the 
requester of additional information necessary to 
consider the request. 

e. Denying a request . Denial of an individual's 
request for notification, access, or amendment must be 
in accordance with paragraph 11c of SECNAVINST 
5211.5D. Generally, access will be granted to an 
individual unless the system of records has been 
exempted from access or the particular information 
requested has been compiled in reasonable anticipation 
of litigation. 

f Time limits . A request for notification, access, 
or amendment shall be acted on in 10 working days, or 
a response to the requester shall indicate when the 
request will be acted upon. Action should be 
completed within 30 days of receipt by the cognizant 
office. 

g. Granting access . If access should be granted, 
the system manager or other custodial official shall so 
inform the requester in writing and: 

(1) Inform the requester where and when the 
records may be viewed, that a person may accompany 


the requester, and a copy of the record may be 
provided upon agreement to pay duplication fees, or 

(2) Furnish a copy of the record, if the 
requester asked for a copy of the record and agreed to 
pay duplication fees, unless fees were waived. 

h. Granting amendment . Amendment should be 
granted when information from the requester and all 
other reasonably available related records indicate that 
the requested amendment will make the record 
accurate, relevant, timely, and complete. 

(1) If amendment is warranted, the system 
manager shall promptly amend the record and notify 
the requester in writing. 

(2) The system manager shall notify previous 
recipients of the record for whom a disclosure 
accounting was made that the record was amended and 
of the substance of the correction. 

(3) When an individual files a statement of 
dispute after a request for amendment has been denied, 
the system manager shall annotate the record so the 
dispute is apparent. The system manager shall notify 
previous recipients of the record for whom a disclosure 
accounting was made that the record has been dis¬ 
puted, provide a copy of the individual's statement, and 
if appropriate, provide a brief statement why the record 
was not amended. For additional guidance, see 
paragraph 12i of SECNAVINST 5211.5D. 

i. Denying the request . If the system manager or 
other custodial official detennines the request should 
be denied, in whole or in part, that officer shall 
forward the request to the cognizant denial authority 
with a copy of the requested record, and 
recommendations as to the denial. 

j. Denial authority . The denial authority shall 
follow: 

(1) Paragraph 6e of SECNAVINST 5211.5D 
to deny a request for notification. 

(2) Paragraphs 11c and d of SECNAVINST 
5211.5D to deny access to a record, in whole or in part. 

(3) Paragraph 12h of SECNAVINST 
5211.5D to deny a request for amendment, in whole or 


5-11 











in part. 

0518 DISCLOSURE TO OTHERS 

Generally, reeords in a system of records may not be 
disclosed exeept pursuant to a written request of the 
subject of the record or with the prior written consent 
of the subject of the record. A complete discussion of 
exceptions is in paragraphs 14b(l) through (12) of 
SECNAVINST 5211.5D. The most common excep¬ 
tions are: 

a. Intra-agency . Disclosure may be made to other 
Department of the Navy or Department of Defense 
personnel who need the records in the performance of 
their duties, if compatible with the purpose for which 
the information is maintained. See section 0515g 
above and paragraph 14b(l) of SECNAVINST 
5211.5D. 

b. Freedom of Information Act . If an agency 
receives a FOIA request for information in a system of 
records not exempt imder FOIA, the infonnation must 
be disclosed. 

(1) Records traditionally released to the public 
-such as press releases—may be disclosed without a 
FOIA request. See SECNAVINST 5720.44A. 

(2) If a FOIA exemption—generally exemption 
(b)(6)—applies to infonnation in a Privacy Act record, 
the agency may not make a discretionary FOIA 
release. See section 0517 above. 

c. Routine use . Disclosure may be made for a 
routine use, as defined in section 0515h above, 
compatible with the purpose for which the record is 
collected and listed as a routine use in the published 
system notice. 

d. Statistical research or reporting . Disclosure 
may be made upon written assurance that the record 
will be used solely as a statistical research or reporting 
record, and the record is not individually identifiable. 

e. Civil or criminal law enforcement activity . 
Disclosure may be made to another agency or 
instrumentality of any governmental jurisdiction, 
controlled by the United States, for a civil or criminal 
law enforcement activity if: 


(1) The activity is authorized by law; and 

(2) The head of the agency or instrumentality 
made a written request to the head of the activity 
maintaining the record, specifying the record desired 
and the law enforcement purpose. 

f Congress or members of Congress . Disclosure 
may be made to either House of Congress, or to any 
cormuittee or subcommittee of Congress to the extent 
the matter is within its jurisdiction. Disclosure is not 
authorized to an individual member of Congress acting 
on his own behalf Members of Congress who seek 
access to records on behalf of their constituent are 
provided the same information that the constituent 
would be entitled to receive. For additional guidance, 
see SECNAVINST 5730.5G, SECNAVINST 5720.42 
(series), or SECNAVINST 5211.5 (series). 

g. Court of competent jurisdiction . Disclosure 
may be made in response to an order of a court of com¬ 
petent jurisdiction signed by a judge. 

0519 DISCLOSURE ACCOUNTINGS 

A disclosure accounting for each record disclosed from 
a system of records must be made by the activity 
maintaining the record, except for: 

a. Intra-agency disclosures; 

b. Disclosures pursuant to FOIA; 

c. Disclosures to Congress or members of Con¬ 
gress; or 

d. Disclosures for statistical research. 

For additional guidance, see paragraph 14f of SEC¬ 
NAVINST 5211.5D. 

0520 COLLECTION OF INFORMATION 

a. Personal information . Personal information is 
information private or intimate to the individual and 
not related solely to official functions. It ordinarily 
does not include information such as time, place, and 
manner of, or reasons and authority for, an individual's 
act or omission directly related to official duties. 

b. Collect _ from _the_ individual . Personal 


5-12 












information shall be collected to the maximum extent 
possible from the individual, except when: 

(1) There is a need to ensure the accuracy of 
the infonnation supplied by verifying the infonnation 
through a third party. 

(2) Information can only be obtained through a 
third party. 

(3) Obtaining information directly from the 
individual would involve exceptional practical difficul¬ 
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. 


d. Social Security numbers . A Privacy Act 
statement must be provided when requesting a Social 
Security number. A Social Security number may be 
requested even if not required by Federal statute, if the 
individual is informed that disclosure is voluntary. 

0521 SAFEGUARDING PERSONAL 
INFORMATION 

Every activity maintaining a system of records shall 
prevent inadvertent or unauthorized disclosures 


PART C--Release of Official Information and Testimony for Litigation Purposes 


0522 POLICY 

Official documents and information should be made 
reasonably available for use in Federal courts. State 
courts, foreign courts, and other governmental pro¬ 
ceedings unless the information is classified, privi¬ 
leged, or otherwise protected from public disclosure. 
Requests for documents, testimony, depositions, or 
interviews of witnesses in connection with litigation 
shall be processed under SECNAVINST 5820.8A. 

0523 RELATIONSHIP WITH FOIA AND THE 
PRIVACY ACT 

This section does not control releases under FOIA or 
the Privacy Act, nor does it preclude treating any 
written request as a FOIA or Privacy Act request. If a 


FOIA or Privacy Act request pertains to litigation to 
which the United States is a present or potential party, 
the release authority should notify the Judge Advocate 
General or the General Counsel, as appropriate. For 
additional guidance, see paragraph 3 in enclosure (3) 
of SECNAVINST 5820.8A. Requests for Privacy Act 
records must be accompanied by a written release from 
the subject of the record, a court order, or a subpoena 
signed by a judge of a court of competent jurisdiction. 
The release official must do a disclosure accoimting. 
See Appendix A-2-b. 

0524 DEFINITIONS 

a. Request or demand (legal process) . Sub¬ 
poena, order, or other request by a Federal, State, or 
foreign court of competent jurisdiction, by any agency 


5-13 





thereof, or by any party or other person for production, 
disclosure, or release of official Department of 
Defense infonnation, or for appearance, deposition, or 
testimony of DON personnel as witnesses. The 
guidance set forth in this part, and SECNAVINST 
5820.8A, do not apply to release of official 
information or testimony by DON personnel in the 
following situations: 

(1) Before courts-martial or administrative 
proceedings convened or conducted by any DOD 
component; 

(2) In response to requests by Federal Govern¬ 
ment counsel or counsel representing the interests of 
the United States; 

(3) As required by the Defense Industrial 
Personnel Security Program under DODDIR 5220.6 of 
12 August 1985; and 

(4) Release of JAG Manual investigations to 
next of kin, and their representatives, concerning 
deceased or incompetent naval personnel. 

b. DON personnel . Active duty and former 
military personnel of the naval service, including 
retirees, personnel of other Department of Defense 
components serving with a naval component, Naval 
Academy midshipmen, present and former employees 
of the Navy and Marine Corps including 
nonappropriated fund employees, foreign nationals 
performing services for the Navy and Marine Corps 
overseas, under provisions of Status of Forces agree¬ 
ments, and other specific individuals or entities hired 
through contractual agreements. 

c. Litigation . All pretrial, trial, and post-trial 
stages of existing or reasonably anticipated judicial or 
administrative actions, hearings, investigations, or 
similar proceedings before civilian courts, commis¬ 
sions, boards (including the Anned Services Board of 
Contract Appeals), or other tribunals, foreign and 
domestic. Includes responses to discovery requests, 
depositions, and other pretrial proceedings, and formal 
or informal requests by attorneys or others involving or 
reasonably anticipated to involve litigation. 

d. Official _ information . Information in the 

custody and control of the Department of Defense or 
its components; includes information acquired by 
Department of Defense personnel or component 


personnel as part of their official duties, or because of 
their official status. 

0525 RESPONSIBILITIES 

a. General . Requests for official information and 
records will be processed in accordance with the 
guidance set out in SECNAVINST 5820.8A. 
Generally, in cases where the United States is not, and 
is not reasonably anticipated to become, a party, the 
responsibility to act as determining authority has been 
delegated to general court-martial convening 
authorities and those commands and activities with a 
staff judge advocate assigned. Requests for official 
information should be sent directly to the command 
that holds the documents desired or at which the 
witness is employed or assigned for duty. In all cases 
where the United States is, or may reasonably be 
expected to be, a party, the determining authority is the 
Judge Advocate General or the General Counsel, as 
appropriate. 

(1) For guidance on the information to be 
included in the request, see SECNAVINST 5820.8A, 
57 Federal Register 2462 (1992), and 58 Federal 
Register 53883 (1993)(codified at 32 C.F.R. § 725). 

(2) If the request is for records in a Privacy 
Act system of records as defined in section 0515d 
above, the request must be accompanied by a written 
release from the subject of the record, a court order, or 
a subpoena signed by a judge of a court of competent 
jurisdiction. 

(3) Copies only will be provided. 

(4) If compliance is inappropriate for any 
reason, such as the records contain classified or 
privileged information, the court order or subpoena 
shall be forwarded to the Judge Advocate General or 
Associate General Counsel (Litigation), under Appen¬ 
dix A-5-a, and the parties notified. 

(5) Release of classified information for civi¬ 
lian proceedings—criminal or civil—must be coor¬ 
dinated with Chief of Naval Operations (OP-092) 
under OPNAVINST 5510.1H. 

b. United States not a party . If the United States 
is not, and is not reasonably anticipated to become a 
party to the proceedings, the production in Federal or 


5-14 







State courts of evidentiary material from the service, 
employment, pay, or medical records of dependents or 
members of the naval service, is authorized upon 
receipt of a request complying with SECNAVINST 
5820.8A, accompanied by a subpoena, court order, or 
other request signed by the judge of a court of com¬ 
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 
Appendix A-5-a. When the request for production 
involves claims in favor of the Government, the 
affirmative claims office at the Naval Legal Service 
Office with territorial responsibility should be notified. 
Any travel by naval personnel to comply with such a 
subpoena, court order, or other request must be at no 
expense to the Government. 

c. Matters _ assigned _to_the_ .ludge _ Advocate 

General . If a naval activity receives a litigation request 
for matters assigned to the Judge Advocate General 
under SECNAVINST 5430.27A or Article 0331, U.S. 
Navy Regulations, 1990, it shall refer the matter to the 
Deputy Assistant Judge Advocate General (DAJAG) 
for International Law, Admiralty, General Litigation, 
or Claims and Tort Litigation, according to the 
responsibilities assigned in this Manual. The ap¬ 
propriate DAJAG will respond. Matters clearly not 
within the areas of responsibility for a particular 
DAJAG shall be referred to the DAJAG for General 
Litigation. 

d. Misdirected requests . A naval activity receiv 
ing a demand for official information originated by 
another Department of Defense component shall 
forward appropriate portions of the request to the 
originating component for action. 

0526 RECORDS IN THE CUSTODY OF THE 
NATIONAL PERSONNEL 
RECORDS CENTER 

Court orders or documents with the legal effect of 
court orders, i.e. those signed by a judge of a court of 
competent jurisdiction, demanding information from, 
or the production of, service or medical records in the 
custody of the National Personnel Records Center for 
former (deceased or discharged) Navy and Marine 
Corps members shall be served upon Director, 
National Personnel Records Center, General Services 
Administration, 9700 Page Boulevard, St. Louis, MO 


63132. If the National Personnel Records Center 
maintains records responsive to the request, that Center 
shall forward such records with the request to: (1) 
Commander, Naval Military Personnel Command or 
(2) Commandant of the Marine Corps (Code M), as 
appropriate. 


0527 MEDICAL AND OTHER RECORDS OF 

CIVILIAN EMPLOYEES 

If the United States is not, and is not reasonably 
anticipated to become, a party, records of civilian 
employees other than medical records may be pro¬ 
duced upon receipt of a court order, or a subpoena 
signed by a judge of a court of competent jurisdiction, 
without specific authority from the Secretary of the 
Navy (Judge Advocate General) or the Associate 
General Counsel (Litigation), as appropriate, unless 
classified or For Official Use Only information, such 
as loyalty or security records, is involved. If such 
records are involved, release must be coordinated with 
the Chief of Naval Operations (N09B30). The Asso¬ 
ciate General Counsel (Litigation) must be notified to 
verify that service has been properly effected. 
Disclosure of records relating to compensation benefits 
administered by the Office of Workers' Compensation 
Programs of the Department of Labor is governed by 
SECNAVINST 5720.42 (series) and SECNAVINST 
5211.5D, as appropriate. Where a record custodian 
will appear to testify with original records, the 
assistance of the United States Attorney or United 
States Marshal should be requested so custody of the 
original records may be maintained. 

0528 PRODUCTION OF OFFICIAL RECORDS 
IN THE ABSENCE OF COURT ORDER 

a. General . Release of official records outside the 
Navy in the absence of a court order is governed by 
SECNAVINST 5720.42 (series) (FOIA) and 
SECNAVINST 52I1.5D (PA), and if requested for 
litigation purposes, by SECNAVINST 5820.8A. 

b. Release of JAG Manual investigations, court- 
martial records, Articles 69 and 73, UCM.I. petitions, 

and Article 138/1150 complaints of wrong . 

(1) .TAG _ Manual _ investigation _ (including 

enclosures) . Requests shall be forwarded to the 


5-15 











following release authorities, depending upon the type 
of investigation eonvened; 

(a) For a eommand investigation, to the 
GCMCA over the eommand convening the 
investigation. 

(b) For a litigation-report investigation, to 
the Judge Advocate General, Code 15. 

(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 
T.J. UCM.1. 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 


disclosure accounting. See Appendix A-2-b. 

0529 CERTIFICATES OF FULL FAITH AND 
CREDIT 

The Judge Advocate General, the Deputy Judge 
Advocate General, and the Assistant Judge Advocates 
General may execute certificates of full faith and credit 
certifying the signatures and authority of officers of the 
Department of the Navy. 


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 eontracts (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 Advoeate 
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 

PART A - DELIVERY OF 
PERSONNEL 

0602 DELIVERY OF PERSONS 
REQUESTED BY STATE 
AUTHORITIES IN CRIMINAL 
CASES 

0603 DELIVERY WHEN PERSONS ARE 
WITHIN TERRITORIAL LIMITS OF 
THE REQUESTING STATE 

0604 DELIVERY WHEN PERSONS ARE 

BEYOND TERRITORIAL LIMITS OF 
THE REQUESTING STATE 

a. General 

b. Waiver of extradition 

e. Fugitive warrants 

d. Members stationed 

outside the United States 

0605 PERSONS STATIONED OUTSIDE 
THE UNITED STATES 

a. Persons desired by local 
U.S. authorities 

b. Members desired by U.S. 

Federal authorities 

0606 AUTHORITY OF THE JUDGE 

ADVOCATE GENERAL AND OF 
THE GENERAL COUNSEL 

a. Authority of the Judge Advocate 
General 

b. Authority of the General Counsel 

b. Points of contaet 


d. Coordination with the 

Commandant of the Marine Corps 

0607 AGREEMENT REQUIRED PRIOR 
TO DELIVERY TO STATE 
AUTHORITIES 

a. Delivery under Article 14, UCMJ 

c. Delivery under Interstate Agreement on 
Detainers Act 

0608 DELIVERY OF PERSONS TO 
FEDERAL AUTHORITIES 

a. Authority to deliver 

b. Agreement not required of Federal 
authorities 

0609 DELIVERY OF PERSONS TO 
FOREIGN AUTHORITIES 

0610 CIRCUMSTANCES IN WHICH 
DELIVERY IS REFUSED 

a. Disciplinary proceedings pending 

b. When delivery may be refused 

c. Reports required 

0611 MEMBERS RELEASED BY CIVIL 
AUTHORITIES ON BAIL OR ON 
THEIR OWN RECOGNIZANCE 

0612 INTERVIEWING MEMBERS OR 
CIVILIAN EMPLOYEES BY 
FEDERAL CIVILIAN 
INVESTIGATIVE AGENCIES 


6-1 


0613 REQUEST FOR DELIVERY OF 

MEMBERS SERVING SENTENCE 
OF COURT-MARTIAL 

a. General 

b. Interstate Agreement on 
Detainers Act 

c. Article 14, UCMJ 

d. Forms 

0614 REQUEST FOR DELIVERY OF 

MEMBERS SERVING SENTENCE 
OF A STATE COURT 

a. General 

b. Interstate Agreement on 
Detainers Act 

0615 REQUEST FOR INJUNCTIVE 

RELIEF (HABEAS CORPUS, TEM¬ 
PORARY RESTRAINING ORDERS, 
ETC.) AND SERVICE OF PROCESS 
BY MAIL 

a. General 

b. Reports required 

PART B - SERVICE OF PROCESS 
AND SUBPOENAS UPON 
PERSONNEL 

0616 SERVICE OF PROCESS UPON 
PERSONNEL 

a. General 

b. Service of process arising 
from official duties 

c. Service of process of foreign courts 

d. Leave or liberty to be granted persons 
served with process 

e. Report where service not allowed 

0617 MEMBERS OR CIVILIAN 

EMPLOYEES SUBPOENAED 
AS WITNESSES IN STATE 
COURTS 


0618 MEMBERS OR CIVILIAN 

EMPLOYEES SUBPOENAED AS 
WITNESSES IN FEDERAL COURTS 

a. Witnesses on behalf of Federal 
Government 

b. Witnesses on behalf of non 
governmental parties 

0619 NAVAL PRISONERS AS 

WITNESSES OR PARTIES IN 
CIVILIAN COURTS 

a. Criminal actions 

b. Civil actions 

0620 INTERVIEWS AND DEPOSITIONS 
IN CONNECTION WITH CIVIL 
LITIGATION IN MATTERS 
PERTAINING TO OFFICIAL DUTIES 

a. Contents of the request 

b. Factual testimony 

c. Expert or opinion testimony 

d. Service of process on the General Counsel 

e. Fees and expenses 

0621 SUITS AGAINST THE UNITED 
STATES 

a. General 

b. Reports to the Judge Advocate General 

c. Reports to the General Counsel 

d. Cases involving civilian employee matters 

e. Initial and supplemental reports 

0622 REPOSSESSION OF PERSONAL 
PROPERTY 

PART C - LIAISON WITH THE 

DEPARTMENT OF JUSTICE 

0623 LITIGATION REPORTS AND 
PLEADINGS 


6-2 


0624 LIAISON WITH THE U.S. 
ATTORNEY AND OTHER 
OFFICIALS OF THE DEPARTMENT 
OF JUSTICE (INCLUDING 
OFFICIALS OF THE 
UNITED STATES MARSHAL 
SERVICE) 

PART D -- MISDEMEANORS 
COMMITTED ON 
NAVY AND MARINE 
CORPS INSTALLATIONS 

0625 GENERAL 

0626 PROSECUTION BEFORE 
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 

PARTE- 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 


0630 STATE AND LOCAL TAXATION OF 
ON-BASE SALES 

0631 STATE AND LOCAL TAXES, 

INCLUDING HOTEL TAXES AND 
THE FEDERAL TRAVELLER 

0632 LIABILITY OF MILITARY 

PERSONNEL AND DEPENDENTS 
FOR STATE AND LOCAL TAXES 

a. In general 

b. Income taxes 

c. Personal property taxes and 
vehicle registration 

d. Assistance 


6-3 


CHAPTER VI 

DELIVERY OF SERVICEMEMBERS, CIVILIANS, AND DEPENDENTS 
-SERVICE OF PROCESS AND SUBPOENAS- 
STATE TAX AND REGULATORY AUTHORITY 


0601 SCOPE 

This chapter provides direction and guidance for 
various situations where a military commander is 
asked to provide or, at a minimum, permit the taking of 
personnel, property, or records from a military 
installation by civilian authorities. Paragraphs 0602 
through 0615 generally deal with requests connected 
with State or Federal criminal prosecutions. 


Paragraphs 0616 through 0624 provide procedures for 
responding to the initiation and processing of civil 
litigation, whether or not the Department of the Navy 
is a party. Paragraphs 0625 through 0627 provide 
guidance for dealing with the Department of Justice in 
criminal and civil prosecutions. Finally, paragraphs 
0628 through 0632 provide guidance on State attempts 
to tax or regulate activities or personnel aboard 
military installations. 


PART A - DELIVERY OF PERSONNEL 


0602 DELIVERY OF PERSONS REQUESTED 
BY STATE AUTHORITIES IN 
CRIMINAL CASES 

Part A of this chapter deals with requests by State 
authorities for the surrender of members or civilians 
pursuant to arrest warrants or sunilar process, generally 
in connection with a criminal prosecution. Responding 
to such requests by a State for delivery of members or 
civilian employees involves balancing the Federal 
interest in preserving sovereign immunity and the 
productivity, peace, good order, and discipline of the 
installation against the right of the State to exercise its 
jurisdiction. Additionally, by regulation, naval and 
Marine authorities are limited in the extent to which 
they can directly assist such an act. Commands should 
respond to such requests as set out below, generally 
using the minimum authority necessary to preserve the 
Federal interests without unduly restricting State 
jurisdiction. 


0603 DELIVERY WHEN PERSONS ARE 
WITHIN TERRITORIAL LIMITS OF 
THE REQUESTING STATE 

When the delivery of any member or civilian is 
requested by local civil authorities of a State for an 
offense punishable under the laws of that jurisdiction, 
and such person is located at a Navy or Marine Corps 
installation within the requesting jurisdiction, or 
aboard a ship within the territorial waters of such 
jurisdiction, commanding officers are authorized to 
and normally will deliver such person when a proper 
warrant is issued. Additionally, the cognizant Fleet 
Commander (or the equivalent Echelon II Marine 
Corps Commander) may, after coordination with the 
Deputy Assistant Judge Advocate General (General 
Litigation), issue guidance authorizing local 
commanders to deliver any such persons to civil 
authorities who are acting without a warrant under 
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 eonsulted before 
delivery is effected. The rule discussed above 
applies equally to civilian employees and civilian 
contractors and their employees when located on a 
Navy or Marine Corps installation, except that 
compliance with section 0607 and consideration of 
section 0610 are not required. (For purposes of this 
chapter, “State” includes the District of Columbia, 
territories, commonwealths, and all possessions or 
protectorates of the United States.) Commands 
should normally not become actively involved in 
civilian law enforcement. See SECNAVINST 
5820.7. When a command has determined that a 
person is to be delivered in response to a valid 
warrant, the following guidance should be 
considered. If the person to be delivered is a military 
member, the member may be ordered to report to a 
location designated by the commanding officer (for 
example, to the base legal office) and surrendered to 
civil authorities under Article 14, UCMJ. If the 
person to be delivered is a civilian, the person may be 
invited to report to the designated space for delivery. 

If the civilian refuses, the civilian authorities may be 
escorted to a place where the civilian is located in 
order that delivery may be effected. A civilian may 
be directed to leave a classified area. All should be 
done with minimum interference to good order and 
discipline. 

0604 DELIVERY WHEN PERSONS ARE 

BEYOND TERRITORIAL LIMITS OF 
THE REQUESTING STATE 

a. General . When State civil authorities request 
delivery of any member of the Navy or Marine Corps 
for an alleged crime or offense punishable under the 
law of the jurisdiction making the request, and such 
member is not attached to a Navy or Marine Corps 
activity within the requesting State or a ship within the 
territorial waters thereof, the following action will be 
taken. Any officer exercising general court-martial 
jurisdiction, or officer designated by him, or any 
commanding officer, after consultation with a judge 
advocate of the Navy or Marine Corps, is authorized 
(upon compliance with the provisions of this section 
and section 0607, and subject to the exceptions in 
section 0610) to deliver such member to make the 
member amenable to prosecution. The member may 
be delivered upon formal or informal waiver of 
extradition in accordance with subsection b, or upon 
presentation of a fugitive warrant, in which case the 


procedures of subsection c apply. The mle discussed 
above applies equally to civilian employees and 
civilian contractors and their employees when located 
on a Department of the Navy installation not within the 
requesting State, except that compliance with section 
0607 and consideration of section 0610 are not 
required. 

b. Waiver of extradition 

(1) Any member may waive fonnal 
extradition. A waiver must be in writing and be 
witnessed. It must include a statement that the member 
signing it has received counsel of either a military or 
civilian attorney prior to executing the waiver, and it 
must further set forth the name and address of the 
attorney consulted. The form for waiver should be 
substantially as that in Appendix A-6-a. 

(2) In every case where there is any doubt as 
to the voluntary nature of a waiver, such doubt shall be 
resolved against its use and all persons concerned will 
be advised to comply with the procedures set forth in 
subsection c, below. 

(3) Executed copies of all waivers will be 
mailed to the Judge Advocate General immediately 
after their execution. 

(4) When a member declines to waive 
extradition, the nearest naval legal service Office or 
Marine Corps staff judge advocate shall be informed 
and shall confer with the civil authorities as 
appropriate. The member concerned shall not be trans¬ 
ferred or ordered out of the State in which he is then 
located without the permission of the Secretary of the 
Navy (Judge Advocate General), unless a fugitive 
warrant is obtained as set forth in subsection c, below. 

c. Fugitive warrants 

(1) A fugitive warrant, as used in this chapter, 
is a warrant issued by a State court of competent 
jurisdiction for the arrest of a member. Normally, a 
State requesting delivery of a member from another 
State will issue a fugitive warrant to the State where 
the member is then located. 

(2) Upon issuance of a fugitive warrant by 
the requesting State to the State in which the member 
is located, the latter State will normally request 


6-5 





delivery of the member to local State authorities. 
Delivery to local State authorities should be arranged 
by Navy or Marine Corps officers designated in 
subsection a of this section, upon compliance with the 
provisions of section 0607, and subject to the 
conditions of section 0610 and paragraphs (3) and (4) 
of this subsection. 

(3) Upon receipt of a request for delivery of a 
member under fugitive warrant to State authorities, if 
the member volimtarily waives extradition, the 
provisions of subsection b, above, apply. If the mem¬ 
ber is delivered to local authorities but refuses to waive 
extradition, he will have the opportunity to contest 
extradition in the courts of the State in which he is 
located. 

(4) No delivery of a member by Navy or 
Marine Corps officers pursuant to a fugitive warrant or 
waiver of extradition shall be effected without 
completion of the agreement required by section 0607 
and execution of such agreement either: (a) by 
authorities of both the requesting State and the State in 
which the member is located, or (b) by authorities of 
the State in which the member is located if such 
authorities, on behalf of the requesting State, accept the 
full responsibility for returning the member to a 
command designated by the Department of the Navy. 

d. Members stationed outside the United States . 
When the member sought by State authorities is not 
located within the United States, see section 0605. 

0605 PERSONS STATIONED OUTSIDE THE 

UNITED STATES 

a. Persons desired by local U.S. authorities . 
When delivery of any member in the Navy or Marine 
Corps, or any civilian employee or dependent, is 
desired for trial by State authorities and the individual 
whose presence is sought is stationed outside the 
United States, the provisions of DoD Directive 5525.9 
of 27 December 1988, Compliance of DoD Members, 
Employees and Family Members Outside the United 
States with Court Orders, as implemented in 
SECNAVINST 5820, will be followed. In all such 
cases, the nearest judge advocate of the Navy or 
Marine Corps shall be consulted before any action is 
taken. 

b. Members desired by U.S. Federal authorities . 


When delivery of any member of the Navy or Marine 
Corps is desired for trial in a Federal district court, 
upon appropriate representation by the Department of 
Justice to the Secretary of the Navy (Judge Advocate 
General), the member will be returned to the United 
States at the expense of the Department of the Navy 
and held at a military facility convenient to the Depart¬ 
ment of the Navy and to the Department of Justice. 
Delivery may be accomplished as set forth in section 
0608, subject to the exceptions in section 0610. 

0606 AUTHORITY OF THE JUDGE 

ADVOCATE GENERAL AND OF 
THE GENERAL COUNSEL 

a. Authority of the .Judge Advocate General . The 
Judge Advocate General, the Deputy Judge Advocate 
General, and the Assistant Judge Advocates General 
are authorized to act for the Secretary of the Navy in 
the performance of functions under this chapter. This 
delegation extends to the Deputy Assistant Judge 
Advocate General (General Litigation), with the 
exception of actions set forth in sections 0528, 0529, 
and 0627. Authority is delegated to the following 
Deputy Assistant Judge Advocates General to act on 
the specific sections noted: International Law, sections 
0609, 0616, 0620, 0621, and 0624; Admiralty, sections 
0616, 0620, 0621, and 0624; Claims, Investigations, 
and Tort Litigation, sections 0528, 0616, 0620, 0621, 
and 0624; Criminal Law, sections 0528 and 0627. 

b. Authority of the General Counsel . The 
authority of the General Counsel of the Navy is 
prescribed by Navy Regulation [32 C.F.R. §§ 
700.203(a) and (g)] and by appropriate departmental 
directives and instructions (e.g., SECNAVINST 
5430.25D). The principal areas of responsibility of the 
Office of the General Counsel (OGC) are commercial 
law, including maritime contract matters (e.g., 
contracts for the repair and alteration of naval vessels); 
civilian employee law at the Headquarters of the 
Department of the Navy and, through the Judge 
Advocate General for the remainder of the Navy; real 
property law; and Freedom of Information Act and 
Privacy Act matters as delineated in SECNAVINST 
5720.42D. The Office of the General Counsel shares 
responsibility with the Judge Advocate General for 
environmental law cases. 

c. Points of contact . Commanding officers are 
advised to contact their local area judge advocates for 


6-6 








assistance in referring matters to the appropriate office 
of the Judge Advoeate General or General Counsel. 
Appendix A-5-a sets out the litigation points of contact 
for the Judge Advocate General and the Office of the 
General Counsel. 

d. Coordination with the Commandant of the 
Marine Corps . Marine Corps commands shall inform 
the Commandant of the Marine Corps (CMC) of all 
matters referred to the Judge Advocate General or the 
Office of General Counsel. Copies of all 
correspondenee and doeuments shall also be provided 
to CMC. The Staff Judge Advocate to the 
Commandant (CMC (JAR)) shall be advised of all 
matters referred to the Judge Advocate General. 
Counsel to the Commandant (CMC (CL)) shall be 
advised of matters referred to the Office of General 
Counsel. Appendix A-5-a to this chapter sets out 
litigation points of eontaet for the Commandant of the 
Marine Corps. 

0607 AGREEMENT REQUIRED PRIOR TO 
DELIVERY TO STATE 
AUTHORITIES 

a. Delivery under Artiele 14, UCM.T . When 
delivery of any member of the Navy or Marine Corps 
to the civilian authorities of a State is authorized, the - 
member's commanding officer shall, before making 
such delivery, obtain from the Governor or other duly 
authorized offieer of sueh State a written agreement 
that conforms to Appendix A-6-b. The State offieial 
completing the agreement must show that he is 
authorized to bind the State to the terms of the 
agreement. When indieating in the agreement the 
naval or Marine Corps activity to which the member 
delivered is to be returned by the State, care should be 
taken to designate the elosest appropriate activity (to 
the eommand to whieh the member is attached) that 
possesses special court-martial jurisdiction. The 
Department of the Navy considers this agreement 
substantially complied with when: (1) the member is 
furnished transportation (under escort in cases of deliv¬ 
ery in aecordanee with section 0613) to a naval or 
Marine Corps activity as set forth in the agreement; (2) 
the member is provided cash to cover incidental 
expenses en route thereto; and (3) the Department of 
the Navy is so informed. Any departure from the 
agreement set forth in Appendix A-6-b must have prior 
approval from the Judge Advocate General. As soon 
as practicable, a eopy of the delivery agreement shall 


be forwarded to the Judge Advocate General. 

b. Delivery under Interstate Agreement on 
Detainers Act . Special forms, not contained in this 
Manual, are used when delivering prisoners under the 
Interstate Agreement on Detainers Act. The Act is 
infrequently used and most requests are pursuant to 
Artiele 14, UCMJ. See seetion 0613 for a detailed dis¬ 
cussion of the Detainers Aet. 

0608 DELIVERY OF PERSONS TO 
FEDERAL AUTHORITIES 

a. Authority to deliver . When Federal law 
enforcement authorities display proper eredentials and 
Federal warrants for the arrest of members, civilian 
employees, civilian contractors and their employees, or 
dependents residing at or loeated on a Department of 
the Navy installation, eommanding offieers are 
authorized to and should allow the arrest of the 
individual sought. The exeeptions in section 0610 may 
be applied to members. A judge advoeate of the Navy 
or Marine Corps should be consulted before delivery is 
effected. 

b. Agreement not required of Federal authorities . 
The agreement described in section 0607 is not a 
condition to the delivery of members to Federal law 
enforcement authorities. Regardless of whether the - 
member is convicted or acquitted, after final 
disposition of the ease, the member will be returned to 
the Naval Service (provided that naval authorities 
desire his return) and the neeessary expenses will be 
paid from an appropriation under the control of the 
Department of Justice. 

0609 DELIVERY OF PERSONS TO 
FOREIGN AUTHORITIES 

Exeept when provided by agreement between the 
United States and the foreign government coneemed, 
cormnanding officers are not authorized to deliver 
members or civilian employees of the Department of 
the Navy, or their dependents residing at or located on 
a naval or Marine Corps installation, to foreign 
authorities. When a request for delivery of these 
persons is received in a country with which the United 
States has no agreement or when the commanding 
officer is in doubt, adviee should be sought from the 
Judge Advocate General. Detailed infonnation 
concerning the delivery of members, civilian 
employees, and dependents to foreign authorities when 


6-7 









a status of forces agreement is in effect is contained in 
DoD Direetive 5525.1 of 9 April 1985 and SE- 
CNAVINST 5820.F. 

0610 CIRCUMSTANCES IN WHICH 
DELIVERY IS REFUSED 

a. Disciplinary proceedings pending . When 
diseiplinary proceedings involving military offenses 
are pending, commanding officers should obtain legal 
guidance from a judge advocate of the Navy or Marine 
Corps prior to delivery of members to Federal or State 
authorities. 

b. When delivery may be refused . Delivery may 
be refused only in the following limited cireumstances: 

(1) Where the accused has been retained for 
prosecution as set forth in section 0125; or 

(2) When the eommanding offieer determines 
that extraordinary cireumstances exist which indicate 
that delivery should be refused. 

c. Reports required . When delivery will be 
refused, the commanding officer shall report the 
cireumstances to the Judge Advocate General by 
telephone, or by message if telephone is impractical. 
The initial report shall be confirmed by letter setting 
forth a full statement of the facts. See RCS JAG 5821- 
4 (Appendix A-6-c). A eopy of the report shall be 
forwarded to the regional coordinator. 

0611 MEMBERS RELEASED BY CIVIL 
AUTHORITIES ON BAIL OR ON 
THEIR OWN RECOGNIZANCE 

A member of the Navy or Marine Corps arrested by 
Federal or State authorities and released on bail or on 
his own reeognizanee has a duty to return to his parent 
organization. Accordingly, when a member of the 
Navy or Marine Corps is arrested by Federal or State 
authorities and returns to his ship or station on bail, or 
on his own recognizance, the commanding officer, 
upon verification of the attesting facts, date of trial, and 
approximate length of time that should be covered by 
the absence, shall grant liberty or leave to permit 
appearance for trial, unless this would have a serious 
negative impaet on the command. In the event that 
liberty or leave is not granted, a judge advocate of the 
Navy or Marine Corps should immediately be 


requested to act as liaison with the court. Nothing in 
this section is to be construed as permitting the 
member arrested and released to avoid the obligations 
of bond or reeognizanee by reason of the member's 
being in the military service. Members shall be 
advised that, in the event the member is ordered not to 
leave the jurisdiction of the court, the member shall 
immediately contaet his command and request further 
instruetions. The command may make arrangements 
for the member to remain in the court's jurisdiction 
through no-cost TAD to the nearest Naval or Marine 
Corps activity. If TAD arrangements are impractical, 
or if it appears that the matter eannot be resolved in 30 
days, the member's command shall seek guidance and 
assistance from the Navy Personnel Command. 

0612 INTERVIEWING SERVICE MEMBERS 
OR CIVILIAN EMPLOYEES BY 
FEDERAL CIVILIAN INVESTIGA¬ 
TIVE 

AGENCIES 

Requests by the Federal Bureau of Investigation, Naval 
Criminal Investigative Service, or other Federal 
civilian investigative agencies to interview members or 
civilian employees of the DON suspected or accused 
of erimes should be promptly honored. Any refusal of 
such a request shall be immediately reported to the 
Judge Advocate General, or the Offiee of General 
Counsel, as appropriate, by telephone, or by message if 
telephone is impractical. When the employee in 
question is a member of an exclusive bargaining unit, a 
staff judge advoeate or General Counsel attorney will 
be consulted to determine whether the employee has a 
right to have a bargaining unit representative present 
during the interview. 

0613 REQUEST FOR DELIVERY OF 

MEMBERS SERVING SENTENCE OF 
COURT-MARTIAL 

a. General . Article 14, UCMJ (10 U.S.C. § 814), 
provides authority to honor requests for delivery of 
members serving a sentence of a court-martial. 
Although seldom utilized, additional authority and 
mandatory obligation to deliver such members are pro¬ 
vided by the Interstate Agreement on Detainers Act 
(18 U.S.C. Appendix, § 9, hereinafter "the Act"), 
which applies to the Federal ageney holding the priso¬ 
ner. The Department of the Navy, as an ageney of the 
Federal Government, shall comply with the Act. The 


6-8 






Act is designed to avoid speedy-trial issues and to aid 
in rehabilitation efforts by securing a greater degree of 
eertainty about a prisoner's future. The Aet provides a 
way for a prisoner to be tried on charges pending 
before State eourts, either at the request of the State 
where the charges are pending or the prisoner's 
request. When refusal of delivery is intended, eomply 
with seetion 0610e. 

b. Interstate Agreement on Detainers Aet . Upon 
request under the Aet by either State authorities or the 
prisoner, the cognizant Navy or Marine Corps staff 
judge advocate, as appropriate, shall eommunicate 
with the appropriate State officials, and monitor and 
ensure that the cognizant commander acts on all such 
requests. The Act provides that court-martial 
sentences eontinue to run during temporary custody. 
This section does not eover requests between Federal 
authorities. The procedure set forth in subsection c, 
below, shall be applied in such cases. Artiele 14, 
UCMJ. 

(1) State request . State officials may 
request delivery of prisoners in military custody under 
section 2, Article IV, of the Act. Where (1) a detainer 
has been lodged against the prisoner, and (2) the 
prisoner is serving a sentence (regardless of whether an 
appeal is in process), delivery is mandatory unless the 
request is disapproved by the cognizant commanding 
officer of the prisoner. 

(2) Prisoner request . The obligation to grant 
temporary custody under the Aet also applies to 
prisoners' requests to be delivered to State authority. 
Section 2, Article Ill(e) of the Act requires the 
eustodial official to infonn the prisoner of the 
existence of any detainer and of the prisoner's right to 
request disposition. The prisoner's request is direeted 
to the eustodial offieial who must forward it to the 
appropriate prosecuting official and court, with a 
certificate of prisoner status as provided by Article III 
of the Act. 

c. Article 14, UCMJ . When a request for custody 
does not invoke the Interstate Agreement on Detainers 
Act, delivery of custody shall be governed by Article 
14, UCMJ, and sections 0603 through 0610, of this 
Manual. The request shall be honored unless, in the 
exercise of discretion, there is an overriding reason for 
retaining the accused in military custody, e.g., 
additional courts-martial are to be convened or the 


delivery would severely prejudice the prisoner's 
appellate rights. Execution of the agreement discussed 
in section 0607 is a condition precedent to delivery to 
State authorities. It is not required before delivery to 
Federal authorities. See section 0608. Unlike delivery 
under the Act, delivery of custody pursuant to Article 
14, UCMJ, interrupts execution of the court-martial 
sentence. 

d. Forms . The form in Appendix A-6-c with 
appropriate modifications should be utilized in 
reporting refusal of delivery of prisoners. 

0614 REQUEST FOR DELIVERY OF 

MEMBERS SERVING SENTENCE OF A 

STATE COURT 

a. General . Ordinarily, members serving 
protracted sentences resulting from a State criminal 
conviction will be processed for administrative 
discharge by reason of misconduct. See 
MILPERSMAN 3630600 and paragraph 6017.3c, 
MARCORSEPMAN. It may, however, be in the best 
interest of the Naval Service to retain a member charg¬ 
ed with a serious offense, subject to military jurisdic¬ 
tion, to try the member by court-martial. The Navy 
may obtain temporary custody of incarcerated 
members for prosecution with a request to the State 
under the Interstate Agreement on Detainers Act. 18 
U.S.C. Appendix, §9. The Department of the Navy 
may use the Act in the same manner in which State 
authorities may request members pursuant to section 
0613. 

b. Interstate _ Agreement on _ Detainers _Act. 

Military authorities may use the Act to obtain 
temporary custody of a member incarcerated in a State 
institution, pursuant to conviction by a State court, to 
resolve criminal charges against the member before a 
court-martial. 

(1) Detainer . If a command requests 
temporary custody under the Act, the commanding 
officer of the cognizant naval legal service office or the 
Marine Corps staff judge advocate, shall file a detainer 
with the warden, commissioner of corrections, or other 
State official having custody of the member. The 
detainer shall identify the member with particularity, 
enumerate the military charges pending, and request 
the command be notified in advance of any intention to 
release the member from confinement. 


6-9 










(2) Request for delivery . As soon as practical 
after filing the detainer, the commanding officer of the 
cognizant naval legal service office or the Marine 
Corps staff judge advocate, shall prepare a written re¬ 
quest for temporary custody of the member addressed 
to the State official charged with administration of the 
State penal system. The request shall designate the 
person(s) to whom the member is to be delivered and 
shall be transmitted via the military judge to whom the 
member's case has been assigned. If the request is 
properly prepared, the military judge shall approve, 
record, and transmit the request to the addressee 
official. The Act provides the State with a 30-day 
period after receipt of the request before the request is 
to be honored. Within that period of time, the gover¬ 
nor of the State may disapprove the request, either 
unilaterally or upon the prisoner's request. If the gov¬ 
ernor disapproves the request, the command should 
coordinate any further action with the Judge Advocate 
General. 

(3) Responsibilities . The cognizant command 
shall ensure that the responsibilities of a receiving 
jurisdiction, delineated in section 2, Article IV of the 
Act, are discharged. In particular, the Act requires that 
the receiving jurisdiction: 

(a) Commence the prisoner's trial within 
120 days of the prisoner's arrival, unless the court, for 
good cause shown during an Article 39(a), UCMJ, 
session, grants a continuance necessary or reasonable 
to promote the ends of justice; 

(b) Hold the prisoner in a suitable jail or 
other facility regularly used for persons awaiting 
prosecution, except for periods during which the 
prisoner attends court or travels to or from any place at 
which his presence may be required; 

(c) Return the prisoner to the sending 
jurisdiction at the earliest practical time, but not before 
the charges that underlie the request have been 
resolved (prematurely returning the prisoner will result 
in dismissal of the charges); and 

(d) Pay all costs of transporting, caring 
for, keeping, and returning the prisoner to the sending 
jurisdiction, unless the command and the State agree 
on some other allocation of the costs or 
responsibilities. 


0615 REQUEST FOR INJUNCTIVE 
RELIEF (HABEAS CORPUS, 
TEMPORARY RESTRAINING 
ORDERS, ETC.) AND SERVICE OF 
PROCESS BY MAIL 

a. General . When a member or civilian employee 
of the Navy or Marine Corps receives service of 
process for injunctive relief (such as for habeas corpus 
or a temporary restraining order), or receives service of 
process by mail in any case involving the named 
member's or employee's duties or official position and 
such service contains an attached form for return of 
acknowledgement of service, the nearest judge 
advocate of the Navy or Marine Corps or attorney with 
the Office of General Counsel shall be immediately 
contacted. The legal representative shall immediately 
contact the nearest United States Attorney for 
assistance. A report of such service shall be made 
promptly to the Judge Advocate General or to the 
Associate General Counsel (Litigation), as appropriate 
(see Appendix A-5-a), by telephone, or by message if 
telephone is impractical and shall include: the name of 
the petitioner(s) and defendant(s), a summary of the 
bases of the petition, and the date and time of any sche¬ 
duled hearing. Action must be taken expeditiously in 
injunctive cases as the courts generally allow a very 
short period of time for response. 

b. Reports required 

(1) If habeas relief is requested, a copy of all 
pleadings, orders, and process in the case, will be 
forwarded to the Judge Advocate General or the 
Associate General Counsel (Litigation), as appropriate 
per Appendix A-5-a, along with a detailed explanation 
of the circumstances under which the petitioner has 
been detained. See RCS JAG 5821-6. See section 
0621(b). 

(2) When the hearing has been completed and 
the court has issued its order in the case, a copy of the 
order shall be forwarded promptly to the Judge 
Advocate General or to the Associate General Counsel 
(Litigation), as appropriate per Appendix A-5-a. This 
is particularly important if the order was adverse in 
order to facilitate compliance or to make a timely 
determination whether to undertake further 
proceedings. 


6-10 







PART B - SERVICE OE PROCESS AND SUBPOENAS UPON PERSONNEL 


0616 SERVICE OE PROCESS UPON 
PERSONNEL 

a. General . Commanding officers afloat and 
ashore may permit serviee of civil process of Federal 
or State courts upon members, civilian employees, 
dependents, or contractors residing at or located on a 
naval installation, if located within their commands. 
Service will not be made within the command without 
the commanding officer's consent. The intent of this 
provision is to protect against interference with 
mission accomplishment and to preserve good order 
and discipline, while not unnecessarily impeding the 
court's work. Where practical, the commanding officer 
shall require that the process be served in his presence, 
or in the presence of a designated officer. In all cases, 
individuals will be advised to seek legal counsel, either 
from a legal assistance attorney or from personal 
counsel for service in personal matters, and from 
Government counsel for service in official matters. 
The commanding officer is not required to act as a 
process server. The action required depends in part on 
the status of the individual requested and which State 
issued the process. 

(1) Tn-state process . When a process server or law 
enforcement officer (such as a deputy sheriff) with 
civil process originating from a State or Federal court 
from the jurisdiction where the naval station is located 
requests permission to serve process aboard an 
installation, the command ordinarily should not 
prevent service of process so long as delivery is made 
in accordance with reasonable command regulations 
and is consistent with good order and discipline. 
Withholding service may be justified only in the rare 
case when the individual sought is located in an area 
under exclusive Federal jurisdiction not subject to any 
reservation by the State of the right to serve process. 
Questions on the extent of jurisdiction should be 
referred to the staff judge advocate, command counsel, 
or local naval legal service office. If service is 
permitted, an appropriate location should be designated 
(for example, the command legal office) where the 
process server and the member or employee can meet 
privately in order that process may be served away 
from the workplace. A member may be directed to 


report to the designated location. A civilian may be 
invited to the designated location. If the civilian does 
not cooperate, the process server may be escorted to 
the location of the civilian in order that process may be 
served. A civilian may be required to leave a classified 
area in order that the process server may have access to 
the civilian. If unusual circumstances require that the 
command not permit service, see section 0616e. 

(2) Out-of-state process . In those cases where the 
process is to be served by authority of a jurisdiction 
other than that where the command is located, the 
person named is not required to accept process. The 
same is true regardless of whether the process server or 
law enforcement official is from within the state or 
out-of-state, since the jurisdiction of the issuing court 
determines whether the person is required to accept 
process or not. Accordingly, the process server acting 
pursuant to out-of-state jurisdiction need not be 
brought face-to-face with the person named in the 
process. Rather, the process server should report to the 
designated command location while the person named 
is contacted, apprised of the situation, and advised that 
he may accept service, but also may refuse. In the 
event that the person named refuses service, the 
process server should be so notified. If service of 
process is attempted from out-of-state by mail and 
refused, the refusal should be noted and the documents 
returned to the sender. Questions should be referred to 
the staff judge advocate, command counsel, or the 
local Trial Service Office. 

b. Service of process arising from official duties 

(1) Whenever a member or civilian employee 
of the Department of the Navy is served with process 
because of his official position, the Judge Advocate 
General or the Associate General Counsel (Litigation), 
as appropriate (see Appendix A-5-a), shall be notified 
by telephone, or by message if telephone is 
impractical. Notification shall be confirmed by a letter 
report by the nearest appropriate command. The letter 
report shall include the detailed facts which give rise to 
the action. RCS JAG 5821-7. For cases involving 
injunctive relief, see section 0615. For lawsuits filed 
in the United States District Court, Washington, D.C., 


6-11 






service of process may be made upon the Department 
of the Navy's Office of General Counsel. 

(2) Any member or civilian employee served 
with Federal or State court civil or criminal process or 
pleadings (including traffic tickets) arising from 
actions performed in the course of official duties shall 
immediately deliver all such process and pleadings to 
the commanding officer. The commanding officer 
shall ascertain the pertinent facts and notify the Judge 
Advocate General or Associate General Counsel 
(Litigation), as appropriate per Appendix A-5-a, by 
telephone or by message if telephone is impractical, of 
the service and immediately forward the pleadings and 
process to the relevant office. The member or civilian 
employee will be advised of the right to remove civil 
or criminal proceedings from State to Federal court 
under 28 U.S.C. §§ 1442, 1442a, rights under the 
Federal Employees Liability Reform and Tort 
Compensation Act (28 U.S.C. § 2679b), if applicable, 
and the right of a Federal employee to request repre¬ 
sentation by Department of Justice attorneys in Federal 
(civil) or State (civil or criminal) proceedings and in 
congressional proceedings in which that person is sued 
in an individual capacity, as delineated in 28 C.F.R. § 
50.15 (1989). Requests for representation shall be 
addressed to the Judge Advocate General or Associate 
General Counsel (Litigation), as appropriate per Ap¬ 
pendix A-5-a, and shall be endorsed by the co¬ 
mmanding officer, who shall provide all necessary data 
relating to the questions of whether the person was 
acting within the course of official duty or scope of 
employment at the time of the incident out of which 
the suit arose. 

(3) If the service of process involves a potential 
claim against the Government, see section 0807 and 
JAGINST 5890.1. The right to remove to Federal 
Court under 28 U.S.C. §§ 1442 and 1442a must be 
considered where the outcome of the State court action 
may influence a claim or potential claim against the 
United States. Questions should be directed to the 
Judge Advocate General or Associate General Counsel 
(Litigation), in accordance with Appendix A-5-a. 

c. Service of process of foreign courts 

(1) Usually, the amenability of members, 
civilian employees, and their dependents stationed in a 
foreign country, to the service of process from courts 
of the host country will have been settled by an 
agreement between the United States and the foreign 


country concerned. (For example, in the countries of 
the signatory parties, amenability to service of civil 
process is governed by paragraphs 5(g) and 9 of 
Article VIII of the NATO Status of Forces Agreement, 
TIAS 2846.) When service of process on a person 
described above is attempted within the command in a 
country in which the United States has no agreement 
on this subject, advice should be sought from the Judge 
Advocate General or the Associate General Counsel 
(Litigation), as appropriate. See Appendix A-5-a. 
When service of process is upon the United States 
Government or one of its agencies or instrumentalities 
as the named defendant, the doctrine of sovereign 
immunity may allow the service of process to be re¬ 
turned to the court through diplomatic channels. 
Service of process directed to an official of the United 
States, on the other hand, must always be processed in 
accordance with the applicable international agreement 
or treaty, regardless of whether the suit involves acts 
performed in the course of official duties. The Judge 
Advocate General or the Associate General Counsel 
(Litigation), as appropriate per Appendix A-5-a, will 
arrange through the Department of Justice for defense 
of the suit against the United States or an official 
acting within the scope of official duties, or make other 
arrangements, and will issue instructions. 

(2) Usually, the persons described in 
subsection c(l) above are not required to accept 
service of process outside the geographic limits of the 
jurisdiction of the court from which the process issued. 

In such cases, acceptance of the service is not com¬ 
pulsory, but service may be voluntarily accepted in 
accordance with subsection b, above. In exceptional 
cases when the United States has agreed that service of 
process will be accepted by such persons when located 
outside the geographic limits of the jurisdiction of the 
court from which the process issued, the provisions of 
the agreement and of subsection a, above, will govern. 

(3) Under the laws of some countries (such as 
Sweden), service of process is effected by the 
document, in original or certified copy, being handed 
to the person for whom the service is intended. 
Service is considered to have taken place even if the 
person refuses to accept the legal documents. 
Therefore, if a commanding officer or other officer in 
the military service personally hands, or attempts to 
hand, that person the document, service is considered 
to have been effected, pennitting the court to proceed 
to judgment. Upon receipt of foreign process with a 


6-12 



request that it be served upon a person deseribed in 
subseetion c(l) above, a eommanding officer shall 
notify the person of the fact that a particular foreign 
court is attempting to serve process and also inform 
that person that the process may be ignored or 
received. If the person to be served chooses to ignore 
the service, the commanding officer will return the 
document to the embassy or consulate of the foreign 
country with the notation that the commanding officer 
had the document, that the person chose to ignore it, 
and that no physical offer of service had been made. 
The commanding officer will advise the Judge 
Advocate General or the Associate General Counsel 
(Litigation), as appropriate per Appendix A-5-a, of all 
requests for service of process from a foreign court and 
the details thereof 

d. Leave or liberty to be granted persons served 
with process . When members or civilian employees 
are either served with process, or voluntarily accept 
service of process, in cases where the United States is 
not a party to the litigation, the commanding officer 
normally will grant leave or liberty to the person 
served to permit compliance with the process, unless to 
do so would have an adverse impact on naval 
operations. If the United States is a party, see section 
0624. When a member or civilian employee is a 
witness for a nongovernmental party because of 
performance of official duties, the commanding officer 
may issue the person concerned permissive orders 
authorizing attendance at the trial at no expense to the 
Government. The provisions of SECNAVINST 
5820.8 must also be considered in such cases. Mem¬ 
bers or civilian employees may accept allowances and 
mileage tendered; however, any fees tendered for 
testimony must be paid to the Department of the Navy 
unless the member or employee is on authorized leave 
while attending the judicial proceeding. When it 
would be in the best interests of the United States 
Government (for example, in State criminal trials), 
travel funds may be used to provide members and 
civilian employees as witnesses as provided in the 
Joint Federal Travel Regulations. Responsibility for 
the payment of the member's mileage and allowances 
will be determined pursuant to the Joint Federal Travel 
Regulations, Volume 1, paragraph M6300, subsections 
1-3. 

e. Report where service not allowed . Where 
service of process is not permitted, or where the 
member or civilian employee is not given leave, 


liberty, or orders to attend a judicial proceeding, a 
report of such refusal and the reasons therefor shall be 
made by telephone, or message if telephone is 
impractical, to the Judge Advocate General or the 
Associate General Counsel (Litigation), as appropriate 
per Appendix A-5-a. RCS JAG 5821-8. 

0617 MEMBERS OR CIVILIAN 

EMPLOYEES SUBPOENAED AS 
WITNESSES IN STATE COURTS 

Where members or civilian employees are subpoenaed 
to appear as witnesses in State courts, and are served as 
described in section 0616, subsection 0616d applies. If 
these persons are requested to appear as witnesses in 
State courts when the interests of the Federal 
Government are involved (e.g.. Medical Care 
Recovery Act cases), follow the procedures described 
in subsection 0618a. If State authorities are attempting 
to obtain the presence of a member or a civilian 
employee as a witness in a civil or criminal case, and 
such person is unavailable because of an overseas 
assignment, the command should immediately contact 
the Judge Advocate General, or the Associate General 
Counsel (Litigation), as appropriate per Appendix A-5- 

a. 

0618 MEMBERS OR CIVILIAN 

EMPLOYEES SUBPOENAED AS 
WITNESSES IN EEDERAL COURTS 

a. Witnesses _on_ behalf _of_the_ Federal 

Government . When members or civilian employees of 
the DON are required to appear as witnesses in a 
Federal court to testify on behalf of the Federal 
Government in cases involving DON activities, the 
Chief of Naval Personnel or the Commandant of the 
Marine Corps, as appropriate, will issue temporary 
additional duty orders to that person. The charges for 
such orders will be borne by the activity to which the 
required witness is attached. Payment to witnesses 
will be as provided by the Joint Federal Travel 
Regulations and the U.S. Navy travel instmctions. If 
the required witness is to appear in a case in which the 
activities of the DON are not involved, the DON may 
be reimbursed under certain circumstances. See 
Appendix D, Vol. 5, DOD Financial Management 
Regulation: 28 CFR § 21 and 5 U.S.C. § 5751. 

b. Witnesses _on_ behalf _of_ nongovernmental 

parties 


6-13 









(1) Criminal actions . When members or 
civilian employees are served with a subpoena to 
appear as a witness for a defendant in a criminal action 
and the fees and mileage required by Rule 17(d) of the 
Federal Rules of Criminal Procedure are tendered, the 
commanding officer may issue the person subpoenaed 
permissive orders authorizing attendance at the trial at 
no expense to the Government, unless the person's ab¬ 
sence would have an adverse impact on naval 
operations. In such a case, a full report of the 
circumstances will be made to the Judge Advocate 
General or, in the case of civilian employees, to the 
Associate General Counsel (Litigation). In those cases 
where fees and mileage are not tendered as required by 
Rule 17(d) of the Federal Rules of Criminal Procedure, 
but the person subpoenaed still desires to attend, the 
commanding officer also may issue permissive orders 
at no cost to the Government. Such persons, however, 
should be advised that an agreement as to reimburse¬ 
ment for any expenses incident to travel, lodging, and 
subsistence should be effected with the party desiring 
their attendance and that no reimbursement should be 
expected from the Government. See subsection 0616d 
for additional guidance concerning fees and mileage. 

(2) Civil actions . When members or civilian 
employees are served with a subpoena to appear as a 
witness on the behalf of a nongovernmental party in a 
civil action brought in a Federal court, the provisions 
of section 0616 apply. 

0619 NAVAL PRISONERS AS WITNESSES 

OR PARTIES IN CIVILIAN COURTS 

a. Criminal actions . When Federal or State 
authorities desire the attendance of a naval prisoner as 
a witness in a criminal case, they should submit a 
written request for such person's attendance to the 
Judge Advocate General. The civilian authority should 
include the following averments in its request: (1) that 
the evidence to be derived from the prisoner's 
testimony is unavailable from any other source; (2) that 
the civilian authority will provide adequate security 
arrangements for the prisoner and assume responsi¬ 
bility for the prisoner while he is in its custody; and (3) 
that the civilian authority will assume all costs of 
transporting the prisoner from the brig, of maintaining 
that prisoner while in civilian custody, and of returning 
the prisoner to the brig from which he was removed. 
The civilian authority should also include in its request 


an estimate of the length of time the prisoner's services 
will be required, and should specify the mode of 
transport by which it intends to return the prisoner. 
Upon receipt of such a request, authority by the Judge 
Advocate General will be given, in a proper case, for 
the production of the requested naval prisoner in court 
without resort to a writ of habeas corpus ad 
testificandum (a writ which requires the production of 
a prisoner to testify before a court of competent 
jurisdiction). 

b. Civil actions . The Department of the Navy 
will not authorize the attendance of a naval prisoner in 
a Federal or State court, either as a party or as a 
witness, in private litigation pending before such a 
court. The deposition of a naval prisoner may be taken 
in such a case, subject to reasonable conditions or 
limitations imposed by the command concerned. 

0620 INTERVIEWS AND DEPOSITIONS IN 
CONNECTION WITH CIVIL 
LITIGATION IN MATTERS 
PERTAINING TO OEEICIAL DUTIES 

Depositions and subpoenas requesting testimony 
from active duty officers, enlisted Sailors and 
Marines, reserve personnel on active duty, current 
DON civilian and contract employees, military 
retirees and former or retired civilian employees are 
controlled by DODDIR 5405.2 and SECNAVINST 
5820.8A. Those regulations are published at 32 
C.F.R. §§ 97 and 725 (2002) and are issued 
consistent with 5U.S.C. §301 and the Supreme 
Court holding of United States ex rel. Touhy v. 

Ragen . 340 U.S. 462 (1951). Touhy confirms the 
authority of the head of a Federal agency to control 
the release of testimony or other official information. 

See SECNAVINST 5820.8A or 32 C.F.R. § 725 for 
specific guidance. For further information, contact 
OJAG (Code 14). 

0621 SUITS AGAINST THE UNITED STATES 

a. General . The Attorney General has primary 
responsibility for representing the United States in any 
litigation in which the United States has an interest. 
The Judge Advocate General and the General Counsel, 
within the areas of their respective jurisdictions, 
maintain close liaison with the Department of Justice 
to afford the Attorney General timely notice of legal 
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 
appropriate per Appendix A-5-a, are required of all 
suits fded against the United States, or its prime 
contractors or subcontractors on contracts under which 
the Government may be obligated to make reim¬ 
bursement, or in cases where the United States is, in 
legal effect, the defendant. 

b. Reports to the .Tudge Advocate General . When 
a command learns, by service of process or otherwise, 
of the commencement of any civil litigation or legal 
proceedings, other than suits within the jurisdiction of 
the General Counsel as set forth in subsection c, below, 
which arise out of the operations of the Department of 
the Navy, or are otherwise of substantial interest to it, 
such command will report to the Judge Advocate 
General, as appropriate (see Appendix A-5-a), by tele¬ 
phone, or by message if telephone is impractical. This 
category of civil litigation and other legal proceedings 
includes, but is not limited to, any legal proceeding 
involving the United States as a party and arising out 
of operations of the Department of the Navy or Navy 
nonappropriated fund activities; proceedings against 
any person subject to military law or any official or 
employee of the Department of the Navy in connection 
with public duties; and proceedings in which attach¬ 
ment of Government funds or other property is sought. 
The report, which shall be confirmed by message, 
shall contain the following infonnation as may be 
pertinent; 

(1) Names of parties to the proceeding. 

(2) Nature of the action. 

(3) Correct designation of the tribunal in 
which the proceeding is brought. 

(4) Docket number of the case, if available. 

(5) Names of person or persons on whom 
service was made, method of service, and dates. 

(6) Explanation of the Govemmenfs interest 
in the proceeding. 

(7) Date by which the defendant must plead 
or otherwise respond. 

(8) Nature of the principal defense, if known. 


(9) Status of the defendant as a Government 
officer, employee, agent, contractor, nonappropriated- 
fund activity employee, etc. 

(10) Amount claimed, or other relief sought. 

(11) If a contractor is involved, the contract 
number, and information as to whether the contractor 
desires or is willing to be defended by a United States 
Attorney. 

(12) Whether the subject of the suit is 
covered by insurance; if so, whether covered to the 
amount claimed, and whether the insurance carrier will 
accept full responsibility for defense of the suit. 

(13) If the action is brought in a foreign 
country, a recommendation as to qualified local 
attorneys, English-speaking if possible, available for 
retention to defend the interests of the United States. 
Nonnally, the names of such attorneys should be 
chosen from a list maintained by the United States 
Embassy or Consulate. 

(14) Other information necessary for a full 
understanding of the action and to enable the 
Government to prepare a defense. 

c. Reports to the General Counsel . A report as 
required above shall be made to the Associate General 
Counsel (Litigation) Department of the Navy, 
Washington, D.C. 20360-5110, rather than to the 
Judge Advocate General, in all cases relating to: 

(1) Business and commercial law; 

(2) Patent law; 

(3) Civilian employee matters; and 

(4) Contract claims and litigation. 

(For a more detailed explanation of areas of 
responsibility, see SECNAVINST 5430.25.) 

d. Cases involving civilian employee matters . 
The Associate General Counsel (Litigation) has 
responsibility for litigation involving civilian 
employees before a Federal court; the Judge Advocate 
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 Proteetion 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 Ifom the installation until the commanding 
officer is satisfied that the dispute is resolved. 


6-16 



PART C - LIAISON WITH THE DEPARTMENT OE 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 
OEFICIALS OE THE DEPART 
MENT OE 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 

The Federal Magistrates Act, 18 U.S.C. §§ 3401-3402 
(1982), provides for trial by Federal magistrates of 
individuals who commit misdemeanors within Federal 
reservations. Policies and procedures for 
implementation of the Federal Magistrates Act and the 
handling of misdemeanors committed on Navy and 
Marine Corps installations are in SECNAVINST 
5822.1. 


0626 PROSECUTION BEFORE FEDERAL 
MAGISTRATES 

a. Responsibility of the Department of .lustice . 
The Department of Justice is primarily responsible for 
the prosecution of offenses before Federal magistrates. 
With the approval of the appropriate United States 
Attorney, qualified Navy and Marine Corps judge 
advocates may prosecute misdemeanors committed on 


6-17 



Navy and Marine Corps installations situated within 
the judieial district of a United States District Court. 

b. Designation of Navy and Marine Corps 
officers to conduct prosecutions . If the United States 
Attorney advises that no Department of Justice 


representative is available to prosecute misdemeanors 
and so authorizes, the commanding officer of an 
installation may designate one or more Navy or Marine 
Corps judge advocates of the coinmand, or make 
necessary arrangements for the designation of one or 
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 

a. Navy or Marine Corps judge advocates may 
not appear as counsel on behalf of any member of the 
armed services before any civil court, civil 
administrative tribunal, civil regulatory body, or any 
civil governmental agency, in any proceeding, 
including a collateral attack on a court-martial, 
administrative discharge, or investigatory proceeding, 
unless specifically authorized by the Judge Advocate 
General or Commander, Naval Legal Service 
Command, as appropriate. The Expanded Legal 
Assistance Program, which involves in-court 
appearances by Navy and Marine Corps judge 
advocates, is specifically provided for in section 0711 
of this Manual. 

b. Requests by Navy or Marine Corps judge 
advocates to appear as counsel before any court, 
tribunal, body, or agency outlined above will be 
delivered to the commanding officer of the judge 
advocate, or staff judge advocate, as appropriate. The 
request must contain: the identity of the member to be 
represented; reasons for requesting permission to 
appear; identity of the court, tribunal, etc., where 
appearance is desired; nature of action intended to be 
filed; relief to be requested; reasons why civilian 
counsel may not be retained; estimated time required 
for representation (including preparation, travel, and 
appearance); and any other action previously filed or 
pending on the same subject matter. The commanding 
officer or staff judge advocate will forward the request 
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 


recommendations, shall be submitted to the Judge 
Advocate General via the Commandant of the Marine 
Corps, Headquarters, U.S. Marine Corps, Washington, 
D.C. 20370-0001. Comments and recommendations 
concerning the request will include, but are not limited 
to: the nature and status of any pending military 
justice, court-martial, administrative discharge, or 
investigatory proceedings relevant to the request; a 
listing of all counsel participating in the case; the 
nature and status of any previous civil or military court 
action in this or related cases; and comment on the 
availability of the requesting counsel in relation to the 
overall workload in his office. 

c. If the request for appearance is approved by the 
Judge Advocate General or Commander, Naval Legal 
Service Command, as appropriate, any expenses 
incurred as a result of representation will be at no cost 
to the Govermnent. 

d. Military prisoners sentenced to death by a 
court-martial, who seek to file in Federal civilian 
court(s) post-conviction habeas corpus petition(s) 
respecting such court-martial following the approval of 
their court-martial sentence to death by the President 
pursuant to Article 71, UCMJ, shall, upon request of 
the accused to the Judge Advocate General, be detailed 
military counsel by the Judge Advocate General to 
represent them in such proceedings and any appeals 
therefrom. See Article 70(e), UCMJ. For the purposes 
of these proceedings, the provisions of subsection c, 
above, do not apply. 


6-18 




PART F - STATE TAX AND REGULATORY AUTHORITY 


0628 BACKGROUND 

Under the Constitution, Federal law generally controls 
over State law, and the Federal Government generally 
is iminrme from taxation or regulation by State 
authorities. Many exceptions exist, however, and com¬ 
manders of installations or units in the United States 
often must deal with State authorities. This part 
discusses relations with State revenue authorities, both 
as to claims for State taxes and demands for 
compliance with State revenue-related regulations. It 
also describes in general terms the liability of members 
and their dependents to taxation and regulation by 
States and localities. 

0629 STATE REGULATION OF 

FEDERAL EUNCTIONS, INCLUDING 
SALES 

a. Application of State law . Except where 
Congress has specifically authorized application of 
State law, the Federal Government is immune from 
any regulation by State or local authorities. Congress 
has authorized some State regulation of certain Federal 
activities in the environmental area. See Chapter XIII 
of this manual. 

b. Federal immunity . In most other areas, 
however, the Federal Government need not comply 
with State regulations, nor obtain State licenses for its 
activities. This immunity extends to activities of the 
Department of the Navy, and to Federal instru¬ 
mentalities, including authorized nonappropriated fund 
instrumentalities (NAFI's). The American Red Cross 
also has been ruled to be a Federal instrumentality. 
Thus, commissaries, exchanges, bowling alleys, and 
other NAFI-operated facilities need not, as a matter of 
law, comply with State law or obtain State business 
licenses to operate. In some areas, such as the age for 
sale of alcoholic beverages and operation of bingo 
games, the Secretary of the Navy has directed 
compliance with State restrictions. This reflects a 
Department of the Navy policy of voluntary 
compliance, and does not subject Federal instrumental¬ 
ities to direct State regulation. The immunity accorded 
Federal instrumentalities applies wherever they may be 
located, and is not limited to exclusive jurisdiction 


property. For example: NAFI resale outlets selling 
alcoholic beverages, whether on exclusive, concurrent, 
or proprietary jurisdiction property, may not be 
required to obtain State liquor licenses; and vehicles 
owned by the Government or NAFI's need not have 
State license plates in order to operate off-base. 

c. Private individuals . The immunity applies 
only to the Govermnent and its instrumentalities. 
Private individuals and organizations operating 
businesses on military property generally are subject to 
State laws and regulation. Thus, dependents operating 
businesses out of their quarters on concurrent jurisdic¬ 
tion land, even if authorized by the base commander, 
are subject to State taxes, regulations, and licensing 
requirements. Likewise, thrift shops operated by 
wives' clubs or charitable organizations are subject to 
State taxation, and may be subject to business license 
requirements. Private activities of organizations of - 
members, civilian employees, or dependents, even if 
command sponsored , will be subject to State taxes and 
may be subject to regulation unless the activity is a 
properly organized and authorized NAFI. In the same 
manner, activities of Federal contractors may be 
subject to State law, taxes, and regulation, unless the 
application of State law would interfere with a Federal 
function. 

d. Demands for compliance . Commanders 
confronted with demands for compliance with State 
regulation or payment of State taxes, other than 
environmental regulations, taxes, or fees, should 
immediately contact a local staff judge advocate or 
General Counsel attorney and notify the Judge 
Advocate General. For procedures to deal with State 
demands for compliance with environmental 
regulations or payment of environmental fees or taxes, 
see Chapter XIII. 

0630 STATE AND LOCAL TAXATION 
OE ON-BASE SALES 

The Buck Act authorizes application of State sales 
taxes on military installations, even those under 
exclusive Federal jurisdiction. 4 U.S.C. § 105. Sales 
by the United States and its instrumentalities are 
exempt. 4 U.S.C. § 107. Thus, commissaries. 


6-19 








exchanges, and other NAFI resale outlets need not 
collect State or local sales tax on sales to authorized 
patrons. Any activity which is not an authorized NAFI 
resale outlet, however, must collect sales taxes as 
required by State and local law. This may include 
thrift shops operated by private organizations, flea 
markets, or large "coffee messes" or "sandwich 
messes" that do not qualify as NAFI resale outlets. 
The requirements of State and local laws vary and 
should be consulted in each case. 

0631 STATE AND LOCAL TAXES, 

INCLUDING HOTEL TAXES AND THE 
EEDERAL TRAVELLER 

The Federal Government's exemption from State and 
local taxation applies only to taxes whose "legal 
incidence" is on the Government or its 
instrumentalities. This usually means that the 
Government is exempt only where the Government 
itself actually pays the tax. Where an individual incurs 
a tax liability for a transaction, and is then reimbursed 
by the Federal government, there normally is no 
immunity, because the legal incidence of the tax was 
on the individual. Hotel taxes can be stmctured in 
various ways, but the legal incidence of the tax is 
virtually always on either the innkeeper or the person 
occupying the room. As a result, the fact that the 
Government will ultimately pay the bill through 
reimbursement confers no immunity from hotel taxes 
on the Federal traveller. In those rare cases where the 
Government will directly pay for accommodations, 
local law should be checked for a possible exemption. 
A few jurisdictions provide an exemption from hotel 
taxes to Federal travellers. This is, however, a matter 
of State legislative grace rather than Federal law. For 
the member or civilian employee travelling on a 
reimbursable basis, "certificates of exemption" should 
not be issued or used unless there is a known specific 
tax exemption for Federal travellers in the local law of 
the place visited. In the same manner, a Federal 
traveler nonnally is not exempt from State sales, meal, 
or car rental taxes merely because his expenses are 
reimbursed by the Federal Government. 


0632 LIABILITY OF MILITARY 

PERSONNEL AND DEPENDENTS FOR 

STATE AND LOCAL TAXES 

a. In general . There is no general exemption for 
military personnel or dependents from State and local 
taxation. Military personnel are provided some relief 
by the Soldiers' and Sailors' Civil Relief Act of 1940, 
which limits the right of States to tax military income 
and motor vehicles owned by military personnel. 
Generally, the tax provisions of the Soldiers' and 
Sailors' Civil Relief Act do not apply to dependents, 
who are fully subject to State and local taxation 
wherever they reside. 

b. Income taxes 

(1) States and localities may tax income of 
three classes of people: (1) domiciliaries, who are 
legal residents of the State and taxable on their 
worldwide income; (2) statutory residents, who, 
regardless of their domicile, have actually lived in the 
State for a prescribed period and are taxable on their 
worldwide income; and (3) nonresidents, who are 
taxable only on income from sources in the State. 

(2) The Soldiers' and Sailors' Civil Relief 
Act states that a military member does not acquire 
residence or domicile in a State merely because he is 
present there due to military orders, nor lose domicile 
in a State merely because of absence due to military 
orders. 50 U.S.C. App. § 574. Thus, a member cannot 
be a "statutory resident" of a State when present due to 
military orders. Members are either domiciliaries of a 
State and fully taxable there, or nonresidents taxable 
only on income from sources in the State. For this 
purpose, military pay is sourced in the member's State 
of domicile. A member domiciled in one State and 
stationed in a second State is taxable by the second 
State only on income other than military pay which is 
earned in that State. Examples include income from 
outside jobs and interest earned on local bank 
accounts. The member's home State, however, could 
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 
income taxes on their military pay. These States often 
have technical requirements for nonresidence which 
members must be careful to observe in order to 
maintain exemption. Restrictions may include a 
minimum period of absence from the State to begin 
nonresidence, a maximum visiting period allowed in 
the State, or a requirement that the member maintain a 
permanent home outside the State or not maintain a 
pennanent home inside the State. Barracks, Bachelor 
Quarters, and shipboard quarters are sometimes not 
considered a pennanent home for these purposes. 

(4) A member's domicile normally starts out 
as the State where he lived before entering the service. 
Members may, however, change their domiciles 
voluntarily. The Soldiers' and Sailors' Civil Relief Act 
merely prevents involuntary changes. The legal 
concept of domicile has two elements: (1) presence in 
a State; and (2) intent to pennanently treat that State as 
"home" by remaining there or consistently returning 
there after absences. For a member validly to change 
domicile, he must meet both tests. Thus, it is not 
possible to validly declare domicile in a State where 
the member has never lived. Also, to ensure respect 
for a choice of domicile, members should retain all 
possible contacts, such as real property ownership, 
voter registration, driver's licenses and vehicle registra¬ 
tions, and professional licenses, with the chosen State 
to show intent to return there. Each State may test 
domicile separately. If contacts are inconsistent, it is 
possible for a member to be held a domiciliary of more 
than one State and subjected to multiple taxation. 
Members with domicile problems should be referred to 
a legal assistance attorney. 

(5) Dependents, unlike members, are subject 
to State tax residency laws. They often will be 
statutory residents of whatever State they happen to 
live in, and will be fully subject to that State's income 
tax laws. If they retain legal domicile in some other 
State, they may be fully taxable by that State as well. 
Further, some States use the income of the military 
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. 


c. Personal _ property _ taxes _and_ vehicle 

registration 

(1) Non-business personal property of 
members generally is taxable only in the State of 
domicile. 50 U.S.C. App. §574. 

(2) If a non-business vehicle owned by a 
member is properly registered in the State of domicile, 
no other State may require its registration there. If not 
properly registered in the State of domicile, the vehicle 
must be registered where the member actually resides. 
That State may assess only such fees as are necessary 
for issuance and administration of the registration. 
Fees or excises in lieu of property taxes are not 
allowed. This does not, however apply to sales taxes, 
which have been held to be outside the scope of the 
Soldiers' and Sailors' Civil Relief Act. 

(3) Registration in any State other than the 
State of domicile or the State of current residence 
generally is invalid. Thus, if a member does not 
maintain registration in his State of domicile, he must 
re-register the vehicle after each interstate PCS move. 

(4) Vehicles owned by dependents are 
subject to tax and registration wherever the vehicle is 
located. Vehicles jointly owned with dependents may 
be taxed by both the member's State of domicile and 
the State where the vehicle is located. In most cases, 
however, the member's State of domicile will not tax 
the vehicle because most ad valorem property taxes 
depend on the presence of the property in the 
jurisdiction. Some States exempt members' jointly 
owned vehicles from taxation. 

d. Assistance . Assistance for individual members 
with State and local tax problems is available from 
Legal assistance attorneys. Problems of general 
application noted by commanders may be forwarded to 
Judge Advocate General for examination by the 
Armed Forces Tax Council per SECNAVINST 
5840.8. 


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 

Enel: (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 JAMl) 
ISIC 


A-6-C 











CHAPTER VII 
LEGAL ASSISTANCE 


0701 SCOPE 

0702 SUPERVISION OF LEGAL 
ASSISTANCE 

0703 LEGAL ASSISTANCE 
PROVIDERS 

0704 LEGAL ASSISTANCE 
ATTORNEYS 

0705 NONLAWYER PERSONNEL 

0706 PERSONS ELIGIBLE FOR LEGAL 
ASSISTANCE 

a. Members of the armed forces on active 
duty for 30 days or more 

b. Other persons eligible 

0707 PERSONAL AND PRIVILEGED 
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 


e. Telephone inquiries 

f. Advice to third parties 

0710 REFERRALS AND FEES 

a. Referral to a civilian attorney or law firm 

b. Prohibition of fees 

0711 EXPANDED LEGAL ASSISTANCE 
PROGRAM 

a. General 

b. Eligibility 

0712 IMMIGRATION AND 
NATURALIZATION 

a. General 

b. Passports and Visas 

c. Acquiring citizenship 

d. Conclusion 


7-1 


CHAPTER VII 
LEGAL ASSISTANCE 


0701 SCOPE 

a. This chapter provides information concerning the 
Department of the Navy legal assistance program. 
Additional regulations are contained in JAGINST 
5801.2 (the Legal Assistance Manual) and other 
related directives. 

b. The Department of the Navy legal assistance 
program provides free attorney assistance to members, 
their dependents, and other eligible clients regarding 
personal legal matters. The term "dependents" is used 
interchangeably with the term "family members" in 
this manual. "Family members" or "dependents" are 
those persons identified in the sponsor's service record 
and/or who possess a valid United States Uniformed 
Services Identification and Privilege Card. 

c. The legal assistance program promotes increased 
readiness of active duty and reserve members of the 
Naval service, and enhances the morale and quality of 
life for military personnel, family members, and other 
eligible clients, through provision of in-office attorney 
advice, aid, and referral services, and vigorous 
preventive law activities. 

d. Legal assistance is not separately funded; the 
program is authorized, not mandated, by Congress. 10 
U.S.C. § 1044 (1994). Accordingly, all legal 
assistance services are provided subject to availability 
of staff legal resources. 

0702 SUPERVISION OF LEGAL ASSISTANCE 

a. The Department of the Navy legal assistance 
program is implemented and supervised by the Judge 
Advocate General. It is administered in the Navy by 
the Chief of Naval Operations (N09J) and in the 
Marine Corps by the Commandant of the Marine 
Corps (Code JA). 

b. Commanding officers of Naval Legal Service 
Offices, senior staff judge advocates to officers 
exercising general court-martial convening authority 
and Marine Corps judge advocates at Marine Corps 
installations (designated by the Commandant of the 
Marine Corps (Code JA)) shall oversee the legal 


assistance practice within their respective chains of 
command, and have broad authority to ensure that 
services are provided commensurate with resources 
available. 

0703 LEGAL ASSISTANCE PROVIDERS 

Legal assistance is provided at all Naval Legal Service 
Offices, Detachments, and Branch Offices. Legal 
assistance services may also be available at other legal 
offices and from Naval and Marine Corps Reserve 
personnel and units. Marine Corps legal assistance 
offices are designated by the Commandant of the 
Marine Corps (Code JA) at certain Marine Corps 
installations. 

0704 LEGAL ASSISTANCE ATTORNEYS 

A legal assistance attorney is a judge advocate or 
civilian attorney authorized by the Judge Advocate 
General, or by his designated representatives 
(including, for Marine Corps personnel, the 
Commandant of the Marine Corps (Code JA)), to 
perform legal assistance functions. He or she 
represents the interests of the individual client 
concerning personal legal matters. 

0705 NONLAWYER PERSONNEL 

Nonlawyer legal officers, legalmen, independent duty 
legalmen, and legal clerks may assist attorneys, but 
they may not provide legal advice or provide services 
that call for the professional judgment of an attorney. 
Nonlawyer personnel may provide assistance not 
requiring the attention of an attorney, such as 
notarizations and the preparation of routine powers of 
attorney using attorney-approved forms. 

0706 PERSONS ELIGIBLE FOR LEGAL 
ASSISTANCE 

a. Members of the arnied forces on active duty for 30 

days or more . Legal assistance is intended primarily 
for active duty personnel, including reservists (and 
members of the National Guard) on active duty for 30 
days or more. For reservists on active duty for less 
than 30 days, see sections 706 (b)(4) and 706 (b)(5). 


7-2 




b. Other persons eligible . As resourees pennit, legal 
assistance may also be provided to the following 
categories of people in the order listed: 

(1) Family members of active duty personnel and 
of personnel who died while on active duty. 

(2) Retired military personnel. 

(3) Family members of retired members and family 
members of deceased retired members. 

(4) Reservists on active duty for single periods of 
29 days or less and their family members may be 
provided legal assistance in emergency cases. 

(5) For the purpose of enhancing the readiness of 
Reserve personnel for mobilization, premobilization 
legal counseling and assistance may be provided to 
active duty or inactive Reserve personnel consistent 
with mobilization readiness needs. Premobilization 
assistance nonnally will consist of drafting or updating 
wills, advance medical directives, and powers of 
attorney. Other assistance may be provided if it relates 
to recall or mobilization. Examples of such assistance 
include advice concerning rights under the 
Servicemembers’ Civil Relief Act (SCRA) or the 
Uniformed Services Employment and Reemployment 
Rights Act (USERRA). Premobilization legal 
assistance services are not authorized for family 
members. 

(6) Members of Reserve components following 
release from active duty under a call or order to active 
duty for more than 30 days issued under a mobilization 
authority (as determined by the Secretary of Defense), 
for a period of time that begins on the date of the 
release and is not less than twice the length of the 
period served on active duty under that call or order to 
active duty. 

(7) Family members of members of the Reserve 
components listed in subsection (6) above. 

(8) Civilian persormel who are United States 
citizens, other than local hire employees, employed by, 
serving with, or accompanying the Armed Forces of 
the United States, when they are assigned to a foreign 
country or to a vessel or unit of the Armed Forces of 
the United States deployed in excess of 30 days. 


(9) Family members accompanying authorized 
civilians listed in subsection (8) above. 

(10) Members of allied forces and their family 
members in the United States, serving with the Armed 
Forces of the United States. 

(11) Other persons authorized by the Judge 
Advocate General. 


0707 PERSONAL AND PRIVILEGED 
CHARACTER OF SERVICE 

a. In general . Infonnation and files pertaining to 
legal assistance clients are private and privileged under 
law and applicable professional rules and guidelines. 
Such information and files shall not be disclosed to 
anyone by the attorney providing legal assistance, 
except upon the specific permission of the client or 
when the attorney determines that disclosure is 
authorized or required by law or applicable rules of 
professional conduct. Disclosure of such information 
cannot be authorized or made lawful by order of 
superior military authority. 

b. Information requests by commanding officer . If 
requested by a member's commanding officer or 
officer in charge, information on whether a member of 
a command reported to a legal assistance office will 
generally be provided. The nature of the legal 
assistance or the substance of conversations or advice, 
will not be provided without the client's consent. 

0708 LEGAL ASSISTANCE SERVICES 

a. Standard services . Advice or service regarding the 
following matters are normally available to eligible 
persons but may be limited due to availability of 
qualified attorney or other resources: 

(1) Wills, tmsts, and estate planning . 

(2) Domestic relations , including divorce, legal 
separation, armulment, custody, and paternity. 

(3) Adoption and name changes . 

(4) Nonsupport _and_ indebtedness , including 

communication, correspondence, negotiations with 


7-3 










another party or lawyer, and assistance related to the 
administration of the Department of Defense program 
for the issuance of involuntary allotments for judgment 
indebtedness. 

(5) Taxes , including basic advice and assistance on 
Federal, State, and local taxes. 

(6) Landlord-tenant relations , including review of 
personal leases and communication and 
correspondence. 

(7) Civil suits , including preparation of 
correspondence, documents and pleadings, except that 
advice and document preparation will not be provided 
in cases where civilian counsel has been retained. 
Flowever, in-court representation is precluded, except 
through the expanded legal assistance program. See 
section 0711. 

(8) SCRA advice and assistance. 

(9) Civilian criminal matters , limited to general 
advice regarding minor (misdemeanor) criminal 
matters and traffic offenses within the jurisdiction of 
the civilian courts. Serious criminal matters will be 
referred to private civilian attorneys. 

b. Other services may include advice and assistance 
on powers of attorney, real estate, bankruptcy, 
contracts, consumer affairs, insurance, and 
immigration and naturalization. Advice and assistance 
regarding military matters may be limited as provided 
in section 0709 and JAGINST 5801.2. 

0709 LIMITATIONS ON SCOPE OF LEGAL 
ASSISTANCE SERVICES 

a. Personal legal matters only . Legal assistance is 
authorized for personal legal affairs only. Legal advice 
and assistance will not be provided regarding business 
ventures or regarding matters that are not of a personal 
nature. 

b. Advice or assistance in official military matters . 
Legal assistance duties are separate and apart from 
responsibilities of trial counsel, defense counsel, or 
others involved in processing courts-martial, 
nonjudicial punishments, administrative boards or 
proceedings, and investigations. Members accused or 
suspected of offenses or conduct that may result in 
disciplinary or judicial proceedings under the Uniform 


Code of Military Justice, or processing for 
administrative discharges, will be referred to a defense 
counsel. 

c. Representation of opposing parties or interests . If 
two or more eligible persons with conflicting interests 
seek advice from the same legal assistance office on 
the same matter, the party first establishing an 
attorney-client relationship will be provided 
representation. Every effort will be made to refer the 
party with a conflicting interest to another source of 
free legal assistance or, if no such source is available, 
to a civilian attorney. 

d. Proceedings involving the United States . Legal 
assistance attorneys shall not represent or assist an 
individual in a matter in which the United States has a 
direct and substantial interest, whether or not the 
Government's position is adverse to that of the 
individual, except as permitted by JAGINST 5801.2 or 
other prior and specific authorization of the Judge 
Advocate General or his designee (Deputy Assistant 
Judge Advocate General for Legal Assistance or the 
Commandant of the Marine Corps (Code JA)). 

e. Telephone inquiries . Legal assistance ordinarily 
will not be provided over the telephone except in 
unusual or compelling circumstances. 

f Advice _to_ third _ parties . The privileged 

attorney-client relationship requires personal and 
private communication. Except when the client is 
unable to communicate adequately, advice or 
assistance will not be provided through third parties. 
For example, each will client must be interviewed 
personally by a legal assistance attorney prior to 
execution of the will. When command representatives 
seek information or assistance on behalf of service 
members, they shall normally be instructed to have the 
service member obtain a legal assistance appointment. 
Bona fide requests for command services shall be 
referred to the judge advocate normally charged with 
providing advice and assistance to the command 
concerned. 

0710 REFERRALS AND FEES 

a. Referral to a civilian attorney or law firm . The 
legal assistance attorney may determine that the best 
interests of the client will be served by referring the 
case to a civilian attorney or law firm. Should referral 
be necessary, payment of legal fees is the client's 


7-4 














responsibility. The Government will not reimburse the 
individual or pay any expenses assoeiated with the 
referral. 

b. Prohibition of fees . Services provided in the 
Department of the Navy legal assistance program are 
at no cost to eligible personnel. All legal assistance 
personnel are prohibited from aecepting or reeeiving, 
from eligible clients, any fee or compensation other 
than Government compensation. Reserve personnel 
not on active duty are prohibited from receiving fees or 
compensation for the same matters about which they 
consulted with or advised their legal assistance clients, 
regardless of the reservist's duty status when the legal 
assistance was provided. 

0711 EXPANDED LEGAL ASSISTANCE 
PROGRAM 

a. General . Under the Expanded Legal Assistance 
Program (ELAP) as approved by the Judge Advocate 
General or his designee (Deputy Assistant Judge 
Advocate General for Legal Assistance or the 
Commandant of the Marine Corps (Code JA)), 
designated legal assistance attorneys may provide 
in-court representation to eertain eategories of elients 
who cannot afford private attorney fees. Additional 
information on ELAP is contained in JAGINST 
5801.2. 

b. Eligibility . Persons eligible: 

(1) Active duty military personnel in pay grades 
E-3 and below. 

(2) Active duty military personnel in pay grade E-4 
with family members. 

(3) Family members of personnel in pay grades E-4 
and below. 

(4) Other aetive duty military personnel and their 
family members who are unable to afford an attorney 
without substantial fmaneial hardship may be eligible 
if approved by the Judge Advocate General or his 
designee (Deputy Assistant Judge Advocate General 
for Legal Assistance or the Commandant of the Marine 
Corps (Code JA)). 

(5) Serviee members with cases that involve a 
significant issue that affects other service members, if 


approved by the Judge Advoeate General or his 
designee (Deputy Assistant Judge Advoeate General 
for Legal Assistance or the Commandant of the Marine 
Corps (Code JA)). 

0712 IMMIGRATION AND 
NATURALIZATION 

a. General . Laws governing immigration are set by 
Congress and are found in the Immigration and 
Nationality Aet and implementing regulations. The 
United States Citizenship and Immigration Service 
(USCIS), an ageney of the Department of Homeland 
Security, administers and enforees U.S. immigration 
laws. 

b. Passports and visas . A passport is a document 
issued by a person’s own eountry to provide 
identification necessary to leave and return to that 
country. By itself, a passport does not give the holder 
permission to enter another country. State Department 
Consular offices overseas issue visas to aliens wishing 
to enter the United States. A visa permits travel to U.S. 
entry points. U.S. immigration officials at the border 
determine whether holders of visas are properly 
documented and otherwise eligible to enter the U.S. 
and for what period of time. Aliens who are U.S. 
servicemembers do not need visas to enter the United 
States. They need only show their military 
identification and papers. 

c. Aequiring citizenship . The Department of the 
Navy has no authority to grant alien members either 
citizenship or lawful permanent resident (LPR) status. 
An alien who has served in the U.S. Armed Forces 
does not automatically become a eitizen. However, the 
United States Navy and Marine Corps have 
implemented programs designed to assist 
servicemembers in obtaining eitizenship through 
qualifying military serviee. Navy and Marine Corps 
legal assistanee offices provide eomplete application 
preparation adviee and support for those qualified 
members of the Armed Forces that desire to apply for 
citizenship. This program can also track the status of 
the application until completion. 

(1) Citizenship through military service . 
Exeept in limited eircumstanees, a servieemember 
must be an LPR before enlisting. Once the 
servieemember has served honorably for the requisite 
period of time as established in 8 U.S.C. § 1439(a), he 


7-5 










may apply immediately for naturalization. To qualify, 
the member must file the petition for naturalization 
while on active duty or within six months after 
discharge. See U.S. Navy Guide To Naturalizafion 
Applications Based upon Qualifying Military Service, 
MILPERSMAN 5352-010, SECNAVINST 5510.30A, 
or MCO P5800.16A for more information on 
naturalization of military service personnel. 

(2) Citizenship through military hostilities . 
Congress has established special procedures for aliens 
who serve in the U.S. Armed Forces during Periods of 
Military Hostilities. Periods of Hostility include: 

6 April 1917 to 11 November 1918 

1 September 1939 to 31 December 1946 
25 June 1950 to 1 July 1955 

28 February 1961 to 15 October 1978 

2 August 1990 to 11 April 1991 

3 July 2002 to a date TBD by a future Executive Order 

Under 8 U.S.C. §1440, an alien with honorable active 
service during any part of the above wartime periods 
has the opportunity to become a citizen. LPR status is 
not required. If the applicant is not an LPR, the 
applicant need only have enlisted or re-enlisted in the 
United States or its territories or possessions or on 
board a vessel owned or operated by the United States 
for noncommercial service. 

(3) Citizenship through immigration . 
Applying for U.S. citizenship is normally a two-step 
process. 

(a) Step one: acquiring lawful permanent 
resident status 

(i) Obtaining a visa . To become an 
LPR, an alien must first obtain an immigrant visa. This 
permits the alien to enter the United States and to 
remain for a specified period of time. 

(ii) The spouse, child under age 21, 
or parent of an adult U.S. citizen is immediately 
eligible for an immigrant visa and LPR status. Visas 
for other immigrants are subject to quota limitations. 
These quotas are distributed in categories known as 
preferences. For some countries, the waiting list for a 
quota may be extremely long. 

(iii) Adjustment of status . Aliens in 
the United States who become eligible for permanent 


residency (for example, by marriage to a U.S. citizen) 
must adjust their status from nonimmigrant to 
immigrant. 

(b) Step two: naturalization 

(i) General rule . After acquiring 
LPR status, an applicant must reside in the United 
States continuously for 5 years before filing a pefition 
for naturalization. Residency for the last 6 months 
must be in the State where the petition is to be filed. 
Although the applicant may make short visits outside 
the United States, long or repeated absences may 
cancel previous periods of residency. 

(ii) Spouses of U.S. citizens . As 
noted above, the spouse of a U.S. citizen is eligible for 
immediate LPR status. The spouse is then eligible for 
naturalization after 3 years of marriage. Physical 
presence and residency requirements must be met. 

(iii) LPR _ spouses _of_ military 

personnel _ ordered _ overseas . The law permits 

naturalization, without regard to length of residence, of 
an LPR spouse who is about to accompany a U.S. 
citizen spouse overseas pursuant to official orders. See 
MILPERSMAN 5352-020, DODDIR5500.I4 of 30 
Oct 70, or MCO 5802.2B. 

(4) Citizenship through birth . A person bom 
in the United States is entitled to U.S. citizenship, even 
if the parents are not. A person bom outside the 
United States and its possessions may be entitled to 
U.S. citizenship, depending on the citizenship of their 
parents and other factors. If both parents are U.S. 
citizens, the child is a citizen if either parent has 
resided in the United States or its possessions anytime 
before the child’s birth. If only one parent is a citizen, 
the child is a citizen so long as the child is under age 
18 and the child is a permanent resident of the U.S., 
living in the legal and physical custody of the U.S. 
citizen parent. 

(5) Marriage . Marriage overseas is governed 
by Service regulations. Any member planning to 
marry a foreign national must submit an application for 
permission to marry to the area commander or 
designated representative. See MILPERSMAN 5352- 
030, SECNAVINST 55I0.30A,and MCO 1752.1C. 

(a) Intended spouses receive medical 
screening and background investigations to ensure 


7-6 















eligibility for immigrant visas. The visa may be denied 
for sueh reasons as drug traffieking, eriminal 
eonvictions, eontagious 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 nirmerical 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 

0801 SCOPE 

0802 RESPONSIBILITIES 

a. Judge Advocate General 

b. Deputy Assistant Judge 
Advocate General (Claims, 
Investigations and Tort Litigation) 

c. Commanding officers in 
receipt of claims 

0803 INVESTIGATIONS 

GENERALLY 

0804 CLAIMS-GENERALLY 

a. Claims against the United 
States 

b. Claims in favor of the 
United States 

0805 CLAIMS-ACTION BY 

RECEIVING COMMAND 

a. Record date of receipt 

b. Determine the military 
activity involved 

c. Initiate an investigation 

0806 CLAIMS - ACTION WHEN 

SUIT FILED 

PART B-FOREIGN CLAIMS 

0807 DEFINITION 

0808 STATUTORY AUTHORITY 

a. General 

b. Purpose 

c. Construction 


0809 FILING THE CLAIM 

a. General 

b. Presentation of the claim 

c. Appropriate authorities 

d. Form of the claim 

e. Amending the claim 

f Statute of limitations 

0810 CLAIMS PAYABLE 

a. General 

b. Covered claimants 

c. Covered incidents 

d. Scope of employment 

0811 CLAIMS NOT PAYABLE 

a. Insurers 

b. Sponsored dependents 

c. Foreign military personnel 

d. Civilian employees 

e. National governments 

f National corporation of a country 
engaged in combat 

g. Combat activities 

h. Claims previously paid 
or denied 

i. Contractual 

j. Private contracts and domestic 
obligations 

k. Compassionate grounds 

l. Paternity or illegitimacy 

m. Other Federal statutes 

n. Damage caused by naval vessels 

0812 COMPUTATION OF THE 

AMOUNT OF PAYMENT 

a. General 

b. Compensation 

c. Apportionment 

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 

Commission 


adjudicating authority 

e. 

Qualifications of 

0818 

NOTIFICATION TO THE 


members 


CLAIMANT 

f 

Adjudieating authority 

0819 

RECONSIDERATION, 

0814 

PROCESSING OF CASES 


APPEAL, AND SUIT 

a. 

Aetion by the staff judge 

a. 

Reconsideration 


advoeate 

b. 

Appeal 

b. 

Aetion by the appointing 
authority 

c. 

Suit 

c. 

Aetion by the claims 
investigating officer 

0820 

PAYMENT 

d. 

Aetion by the Commission 

a. 

Doeumentation 



b. 

Voucher 

0815 REPORTS REQUIRED 

e. 

Aecounting data 



d. 

Release 

a. 

Appointing order and 

e. 

Advanee 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 

This chapter provides information about responsibilities 
for the supervision and management of the Navy's claims 
program and the investigation of claims under the various 
Federal claims statutes. Detailed information about the 
adjudication of claims under the Foreign Claims Act is in 
Part B. Explanations of the various claims statutes and 
information about adjudication are beyond the scope of 
this chapter. They are in instructions issued by the Judge 
Advocate General and available at Naval Legal Service 
Command activities. 

0802 RESPONSIBILITIES 

a. The Judge Advocate General is responsible for 
the resolution of claims arising under the Federal Tort 
Claims Act, the Military Claims Act, the Nonscope Cl¬ 
aims Act, the Personnel Claims Act, the Foreign Claims 
Act, the International Agreements Claims Act pertaining 
to cost sharing of claims pursuant to international agre¬ 
ements, the Medical Care Recovery Act, the Federal 
Claims Collection Act of 1966, and postal claims. 

b. The Deputy Assistant Judge Advocate General 
(Claims, Investigations and Tort Litigation) is the man¬ 
ager of the Navy claims system that evaluates, adjudi¬ 
cates, and provides litigation support for claims arising 
under the acts listed above. He is responsible to the Judge 
Advocate General for the management of that system. 
The claims system consists of field activities delegated 
claims adjudicating authority and the attorneys and 
support personnel assigned to the Claims, Investigations 
and Tort Litigation Division of the Office of the Judge 
Advocate General. 

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. 


d. Admiralty claims are discussed in Chapter 
XII. The Deputy Assistant Judge Advocate General 
(Admiralty and Maritime Law) is responsible for 
adjudication of all claims, for and against the Navy, 
within admiralty jurisdiction. See JAGMAN Chapter 
XII. 

0803 INVESTIGATIONS GENERALLY 

Chapter II addresses administrative investigations. 
Whenever an investigation is conducted primarily for 
elaims purposes, it shall be conducted as a litigation 
report investigation in accordance with section 0209 of 
this Manual. As noted in section 0209, such an 
investigation is condueted under the direction and 
supervision of a Department of the Navy attorney in 
anticipation of litigation and the investigation is 
privileged. 

0804 CLAIMS-GENERALLY 

a. Claims against the United States . Claims 
against the United States shall receive prompt and 
professional disposition. Every effort will be made to 
ensure an investigation is thoroughly and accurately 
completed, the claimant's allegations evaluated 
promptly, and where liability is established, a cheek 
issued as quiekly as possible. Similarly, claims not 
payable will be proeessed promptly and claimants 
advised of the reasons for the denial. 

b. Claims in favor of the United States . 
Potential elaims in favor of the United States will be 
eritieally evaluated and, where appropriate, promptly 
asserted and aggressively pursued to resolution. 


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 fonn. The envelope in 
which the claim was received shall be preserved. 

b. Determine the military activity involved . The 
receiving command shall detennine 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 

Foreign claims are demands for payment against the 
United States, presented by inhabitants of foreign 
countries, for property damage, personal injury, or 
death occurring outside the United States and caused 
either by members or civilian employees of the U.S. 
armed forces or by the noncombat activities of these 
forces in foreign countries 

0808 STATUTORY AUTHORITY 

a. General . The Foreign Claims Act (FCA), 
10 U.S.C. § 2734, authorizes filing, investigating, 
processing, and settling foreign claims under such 
regulations as the service Secretary shall prescribe. 
The regulations in this chapter implement the FCA 
within the Department of the Navy. 

b. Purpose . The purpose of the FCA is to 
"promote and maintain friendly relations through the 
prompt settlement of meritorious claims" in foreign 
countries. 

c. Construction . These regulations should be 
broadly construed to carry out the FCA’s statutory 
purpose. The United States generally accepts 
responsibility for almost all damage, injury, or death to 
local inhabitants caused by members of the U.S. armed 
forces or by the noncombat activities of our armed 
forces in foreign countries. Proof of fault is not re¬ 
quired. Rather, causation of the harm is determinative. 
Meritorious claims should be settled fairly and 
promptly, without regard to whether the acts giving 
rise to them are mistaken, negligent, intentional, or 
even criminal. 

0809 FILING THE CLAIM 

a. General . A claim must be presented in 
writing to the appropriate U.S. military authorities 
within 2 years after the incident giving rise to the 
claim. It must: (1) state time, date, place, and nature of 
the incident; (2) state the nature and extent of any inju¬ 
ry, loss, or damage; and (3) request compensation in a 
definite amount, in the local currency. 


b. Presentation of the claim . A claim may be 
presented to any United States authority or to foreign 
government authorities if authorized under a Status of 
Forces Agreement or other applicable treaty or 
agreement. Claims shall be promptly transferred to the 
appropriate authorities for processing. 

c. Appropriate authorities 

(1) General . The commanding officer of 
the organization or individual(s) whose activities gave 
rise to the claim, or the commanding officer of the 
Naval Legal Service Command activity servicing the 
area in which the claim arose has authority to process 
claims under these regulations, subject to the restric¬ 
tions of subparagraphs (2) through (4) of this section. 
A commander who receives a claim subject to the 
restrictions of subparagraphs (2) through (4) shall 
forward the claim promptly to the appropriate authority 
and shall provide assistance necessary to investigate 
and adjudicate the claim. 

(2) Claims arising in Italy . The Officer in 
Charge of the U.S. Sending State Office for Italy has 
authority to process all claims under the Foreign 
Claims Act arising in Italy. 

(3) International agreements . Article VIII 
of the NATO Status of Forces Agreement and similar 
provisions of status of forces agreements with 
individual foreign countries may restrict the use of the 
Foreign Claims Act by authorizing foreign government 
officials to process claims that would otherwise be 
cognizable under the Foreign Claims Act. 
Accordingly, pertinent directives of the area 
commander shall be consulted. Claims shall not be pr¬ 
ocessed under these regulations until it has been 
determined that such action is authorized. 

(4) Single-service _ claims _ responsibility . 

DODDIR 5515.8 of 9 June 1990 assigns "single¬ 
service claims responsibility" to individual military 
departments for processing claims in specified foreign 
countries. This may restrict the use of the regulations 
in this chapter by authorizing the assigned military 


8-5 












department to process claims that would otherwise be 
cognizable under this chapter. Accordingly, DODDIR 
5515.8, that indicates the assignments for each military 
department, shall be consulted and claims shall not be 
processed under this chapter until it has been 
determined that such action is authorized. 

d. Form of the claim . A properly completed 
Standard Form 95 or other written demand, signed by 
the claimant or an authorized agent, and containing the 
same essential infonnation, is sufficient. A claim may 
be signed by either the injured party or an authorized 
agent, such as a lawyer. Agents must show their title 
or legal capacity and present evidence of their 
authority to sign the claim. A claim may be considered 
if it describes the incident in enough detail to give 
reasonable notice of the time, place, circumstances, 
and resulting harm. 

e. Amending the claim . A claim may be 
amended at any time prior to final settlement or denial. 
Amendments must be written and signed by the clai¬ 
mant or an authorized agent. 

f Statute of limitations . A claim must be 
filed within 2 years after it accrues. A claim accrues 
when the claimant discovers or reasonably should have 
discovered the existence of the incident giving rise to 
the claim. Generally, to compute the statutory time 
period, the day the claim accrued should be excluded 
and the day the claim was filed should be included. 

0810 CLAIMS PAYABLE 

a. General . For a claim to be payable under 
the FCA, both the claimant and the incident giving rise 
to the claim must be covered by the statute. 

b. Covered claimants . The FCA applies only 
to "inhabitants" of foreign countries, who are defined 
as persons, corporations, or other Government or 
business entities, whose usual place of abode or 
activity is in a foreign country. "Inhabitant" has a 
broader meaning than "citizen" or "national," but does 
not include persons whose presence in a foreign 
country is merely temporary, such as tourists or 
travelers. Foreign citizenship or legal domicile is not 
required. It is a matter of actual residence. Examples 


of covered claimants are: 

(1) Foreign nationals residing in a foreign 

country. 

(2) U.S. citizens residing in a foreign 
country, if they are inhabitants of a foreign country and 
are not there as U.S. service members or civilian 
employees (or their sponsored dependents). 

(3) A corporation or other organization 
doing business in a foreign country on a permanent 
basis, even if organized under United States law. 

(4) Foreign governments and their politi¬ 
cal subdivisions, including the equivalents of State, 
county, and city governments, unless excluded by 
waiver provisions of an international agreement. 

c. Covered incidents . Unless otherwise 
prescribed, a claim for personal injury, death, or 
damage or loss of real or personal property may be 
settled under these regulations if the incident occurred 
outside the United States and was caused by either the 
noncombat activities of the U.S. anned forces or the 
actions of a member or civilian employee of those 
forces. Negligence is not a prerequisite. Only caus¬ 
ation is required. 

d. Scope of employment . As a general rule, 
scope of employment is immaterial. If, however, a 
claim arises from the act of a U.S. employee who is an 
indigenous person, prisoner of war, or interned enemy 
alien, scope of employment is a prerequisite to United 
States responsibility. Claims arising from the 
operation of a U.S. armed forces vehicle by a U.S. 
employee who is an indigenous person, prisoner of 
war, or interned enemy alien should be settled if local 
law imposes liability on the owner of the vehicle under 
the circumstances. 

0811 CLAIMS NOT PAYABLE 

Examples of claims not payable 

a. Claims of insurers and other subrogees. 


8-6 










b. Claims of sponsored dependents accom¬ 
panying members and civilian employees of the U.S. 
armed forces, or U.S. national civilians employed by 
either the U.S. Government or a civilian contractor 
performing an agreement with the U.S. Government. 

c. Claims of foreign military personnel 
suffering injury or death incident to a joint military 
mission or exercise with U.S. armed forces, or as a re¬ 
sult of the actions of a member or civilian employee of 
the U.S. armed forces, acting within the scope of 
employment, unless a treaty specifically provides for 
recovery. 

d. Claims of civilian employees of the United 
States, including local inhabitants, injured incident to 
their employment. Compensation for such injuries is 
separately provided in Federal statutes and agreements 
with foreign governments. 

e. Claims of national governments or their 
political subdivisions engaging in combat with the 
United States or its allies. 

f Claims of a national or a nationally 
controlled corporation of a country engaging in combat 
with the United States or its allies, unless it is 
determined that the claimant is friendly. 

g. Claims resulting from combat activities, 
except that claims arising from an accident or 
malfunction incident to aircraft operations, including 
airborne ordnance, occurring while preparing for, 
going to, or returning from a combat mission may be 
paid. 

h. Claims previously paid or denied. 

i. Claims purely contractual in nature. 

j. Claims involving private contractual and 
domestic obligations of individuals. 

k. Claims based solely on compassionate 
grounds. 

l. Claims for paternity or illegitimacy. 


m. Claims payable under other Federal 
statutes. 

n. Claims for damage caused by naval 
vessels, unless payment is specifically authorized by 
the Judge Advocate General under section 1216 of this 
Manual. 

0812 COMPUTATION OF THE AMOUNT 

OF PAYMENT 

a. General . The local laws, standards, and cus¬ 
toms of the country where the incident occurred 
control when computing damages for personal injury, 
death, or damage to property. 

b. Compensation . An appropriate award is 
generally limited to reasonable compensation for the 
injury, death, or property damage or loss only, and 
does not extend to payment of punitive damages, 
interest, costs, attorney's fees, bail, or any other such 
charges, regardless of whether they are allowed by 
local laws, standards, or customs. In the cases of 
personal injury or death, compensation may include 
medical expenses, pain and suffering, burial expenses, 
loss of society and companionship, and lost income. In 
cases of permanent disability, compensation may also 
include diminished earning capacity and costs of 
medical care in the future. In cases of property dam¬ 
age, compensation may include cost of repair, cost of 
replacement or diminished value, and loss of use of the 
property. 

c. Apportionment . When there are multiple 
claimants or beneficiaries for a single award, the 
amount approved should be apportioned among them 
in the proportions prescribed by local laws, standards, 
and customs. 

d. .loint liability . When two or more parties 
are liable for causing the same harm, they may be 
jointly liable for payment of compensation. Any 
amount paid by or on behalf of such a party should be 
deducted from the amount allowed under these 
regulations. 

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 
of the same injury, death, or damage or loss, should be 
dedueted from the amount allowed under these regula¬ 
tions. Otherwise, insurance coverage should not be 
considered. 

f Negligence of the claimant . A claimant's 
negligent or wrongful aet eontributing to the injury, 
death, or damage that is the basis of the claim, may bar 
the claim entirely (eontributory negligence) or 
dimmish the claim proportionately (comparative 
negligence). The local laws, standards, and customs of 
the place where the incident occurred should be 
applied to detennine whether and in what amount to 
allow a claim. 

g. Currency . The amount of the award should 
be computed in the loeal currency of the place where 
the incident occurred or in the local currency of the 
place where the claimant presently resides, if different 
from the place where the incident oeeurred. 

0813 FOREIGN CLAIMS COMMISSIONS 

a. Purpose . The purpose of a Foreign Claims 
Commission (Commission) is to settle meritorious 
claims fairly and promptly. A Commission shall deny 
or pay (in full or in part) all claims referred to it or 
forward adjudication recommendations to appropriate 
higher authorities. 

b. Authority to appoint 

(1) All commanding officers of the Navy 
and Marine Corps have authority to appoint a Commis¬ 
sion, unless restricted by a competent superior eom- 
mander. 

(2) For the purpose of the FC A and these 
regulations, the following officers are considered 
commanding officers: the Judge Advocate General of 
the Navy; the Offieer in Charge of the U.S. Sending 
State Office for Italy; Chiefs of Naval Missions 
(including chiefs of the naval section of military mis¬ 
sions); Chiefs of Military Assistance Advisory Groups 
(including chiefs of the naval section of such groups); 
and naval attaches. 


c. Claims presented . A Commission may be 
appointed to eonsider each claim as presented or a 
standing Commission may be appointed to consider all 
claims presented. The commanding officer to whom a 
claim is presented shall refer the elaim to a 
Commission appointed under these regulations. 

d. Composition of the Commission . A 

Commission shall be composed of either one or three 
members. Alternate members may be appointed where 
circumstances require, and may be substituted for the 
prineipal members for speeific eases by order of the 
appointing authority. The appointing orders should 
clearly indieate which member is president of a three 
member Commission. 

e. Qualifications of members 

(1) Members appointed to serve on a 
Commission shall be eommissioned officers of the 
Navy or Marine Corps of sufficient grade and ex¬ 
perience to carry out the purpose of the Commission, 
consistent with the Foreign Claims Act. 

(2) Whenever possible, at least one 
member of the Commission should be a judge 
advoeate. An officer of another armed force may serve 
on a Navy or Marine Corps Commission only with the 
consent of the Secretary of his department, or a 
designee, and will perform duties according to these 
regulations. When an officer of the Navy or Marine 
Corps is requested to serve on a Commission of 
another anned foree, the immediate commanding 
officer of such officer may determine availability pur¬ 
suant to 10 U.S.C. § 2734(a). 

f Adjudicating authority 

(1) General . Although a Commission may 
consider elaims in any amount, the Commission may 
only deny a claim seeking an amount within the limits 
of the Commission’s adjudieation authority. Similarly, 
a Commission may only pay a settlement amount that 
is within the limits of the Commission’s adjudieation 
authority. Therefore, a claim that seeks an award in 
exeess of the Commission’s authority may be settled 
by the Commission only if the mutually agreed 
settlement amount is within the limits of the 


8-8 











Commission’s adjudication authority. The 
Commission shall forward recommendations to 
appropriate higher authorities to deny claims in excess 
of their authority, or to pay (in full or in part) an 
amount that exceeds the limits of the Commission’s 
authority. 

(2) Claims up to S20,000.00 . The 
Commission may deny or pay, in whole or in part, 
elaims within the following limitations: 

(a) One officer Commission: 

$5,000.00. 

(b) One officer Commission (judge 
advocate): $10,000.00. 

(c) Three officer Commission: 

$ 10 , 000 . 00 . 

(d) Three offieer Commission with 
at least one judge advocate: $20,000.00. 

(3) Claims _in_ excess _of_ limits _or 

$20,000.00 . Recommendations of a Commission for 
payment or denial of claims in excess of the limits of 
their adjudieating authority or in exeess of $20,000.00 
shall be forwarded through the appointing authority as 
required under sections 0815 and 0816 of this chapter, 
and shall be subject to the approval of appropriate 
higher authorities under the delegations of authority in 
section 0817 of this chapter. 

0814 PROCESSING OF CASES 

a. Action by the staff judge advocate . The 
staff judge advocate of the commanding officer 
receiving a claim for action is responsible to provide 
advice, guidance, and review to the commanding offi¬ 
cer, Commission, and claims investigating officer on 
the policies and procedures in these regulations. This 
assistance may also be provided by the Naval Legal 
Service Command activity servicing the area in which 
the claim arose. Commands without a staff judge 
advocate assigned should request assistance from the 
cognizant Naval Legal Service Command activity, the 
next superior command with a staff judge advocate, or 
the nearest command with a staff judge advocate or 


any judge advocate assigned. 

b. Action by the appointing authority . The 
commanding officer to whom a claim is presented, and 
who is authorized to take action under this chapter, is 
the appointing authority for the Commission to adju¬ 
dicate the claim. The appointing authority shall: detail 
appropriately qualified members and appoint them in 
writing; convene an appropriate investigation or obtain 
the report of investigation, if one has already been 
conducted; refer the claim with the investigative report 
of the incident to the Commission for adjudication; and 
if applicable, receive a recommendation from the 
Commission, review it with appropriate legal advice, 
and take action or forward it as appropriate under these 
regulations. 

c. Action by the claims investigating officer . 
There is no formal procedure for conducting an 
investigation of a foreign claim. The requirements of 
Chapter II of this Manual may be followed as a guide. 
A transcript of witnesses testimony is not required. 
Only the substance of their statements must be re¬ 
corded. The transcript should be signed by the 
witnesses if possible. The formal rules of evidence 
need not be followed, and any relevant evidence, re¬ 
gardless of form, may be received to establish the 
essential facts of the incident. A report of the investi¬ 
gation shall be submitted to the convening authority as 
soon as practicable. 

d. Action by the Commission : 

(1) Review the claim and the investigation 
and, if necessary, initiate or request further inves¬ 
tigation. 

(2) Adjudicate and deny or pay (in full or 
in part) the claim if the amount claimed (for a denial), 
or the mutually agreed upon settlement award (for an 
approved claim) is within the limits of the 
Commission’s adjudication authority. Otherwise, the 
Commission will need to make a recommendation to 
higher authority. The decisions of the Commission 
shall be determined by a majority vote. 

(3) Negotiate with the claimant for 
settlement of the claim within the limit of adjudicating 


8-9 









authority. 


(1) Dates of the proceedings. 


(4) Report its decision or recommendation 
and the reasons therefor to, or through, the appointing 
authority, as required under these regulations. 

(5) Prepare the settlement agreement and 
release on the forms at Appendix A-8-a of this Manual, 
when approving the claim. Claimant must agree to 
accept the amount paid in full satisfaction of the claim. 

(6) Prepare the written notification to the 
claimant, explaining its decision to deny or pay the 
claim (in full or in part), or explaining the 
Commission’s recommendation to higher authority. 

(7) Pay the claim in the currency of the 
country where the claimant resides. This may be 
subject to approval by the appointing authority or other 
higher authority under these regulations. 

(8) Obtain a signed release upon payment 
of any claim and forward same through the appointing 
authority to the disbursing officer. 

0815 REPORTS REQUIRED 

The Commission shall make a written report of each 
claim, to include: 

a. Appointing order and any modifications. 

b. Claim document. 

c. Investigative report. 

d. Summaries of witnesses testimony or 
witnesses statements signed by the witnesses if possi¬ 
ble. 

e. The settlement agreement and release when 
payment is approved or recommended. 

f Proposed notification to the claimant. 

g. Memorandum containing the following 

information: 


(2) Amount claimed, stated in the local 
currency and the conversion into U.S. currency at the 
official rate of exchange on the date of initial 
consideration of the claim. 

(3) Brief summary of essential facts, 
including: date of incident, date claim was filed, ci¬ 
rcumstances of incident, nature and extent of injury or 
damage, and basis for determining whether the claim is 
payable. 

(4) Brief evaluation of the applicable local 
laws, standards, and customs. 

(5) Date of adjudication by the Com¬ 
mission. 

(6) Amount of any award or recommen¬ 
ded award, stated in the local currency and the conver¬ 
sion into U.S. currency at the official rate of exchange 
on the date of the adjudication. 

(7) Statement of the decision or 
recommendation of the Commission and an explana¬ 
tion of the basis. 

0816 FORWARDING REPORTS 

a. Claims within adjudicating authority . When 
a Commission pays or denies a claim within its ad¬ 
judicating authority, the original of the report and all 
related papers shall be forwarded to the appointing 
authority. 

b. Claims in excess of adjudicating authority . 
When a Commission recommends payment or denial 
of a claim in excess of its adjudicating authority, the 
original of the report and all related papers shall be 
forwarded to the appointing authority to retain, and a 
copy shall be forwarded through the appointing 
authority to the appropriate higher authority for action 
under the delegations of authority in section 0817 of 
this chapter. 

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 
adjudicating authority of the Commission is 
recommended, the following officers may approve or 
disapprove the recommendation and the claim, in 
whole or in part, pay the claun, or return the claim with 
instructions to the appointing authority or the 
Commission: 

(1) Claims up to $50,000.00 . The Depu¬ 
ty Judge Advocate General, the Assistant Judge Ad¬ 
vocate General (Civil Law), or the Deputy Assistant 
Judge Advocate General (Claims, Investigations and 
Tort Litigation), or, with respect to claims arising in 
Italy, the Officer in Charge of the U.S. Sending State 
Office for Italy; 

(2) Claims _ from _ S50,000.00 _ through 

SI00.000.00 . The Judge Advocate General; and 

(3) Claims in excess of $100,000.00 . 
The Secretary of the Navy may pay the first $100,00- 
0.00 and report the excess to the Comptroller General 
for payment. 10 U.S.C. § 2734(d). 

0818 NOTIFICATION TO THE CLAIMANT 

Claimant shall be notified promptly by the 
Commission in writing of approval or denial of claims 
within the adjudicating authority of the Commission, 
or of referral of claims in excess of the adjudicating 
authority of the Commission to higher authority. 
Notification should inform claimant of the approved 
recommendation or action of the Commission and 
briefly explain the reasons therefor. When resources 
permit, the letter of notification should be translated 
into claimant's language, preferably using the interlin¬ 
ear method. When final action on a claim is taken by 
an officer superior to the appointing authority of the 
Commission, the notification letter should be for¬ 
warded through the appointing authority, with a copy 
to the Commission. Claimant shall not be informed of 
the amount of recommendations to higher authority for 
payment and shall not be shown the report of the 
Commission. 

0819 RECONSIDERATION, APPEAL, AND 
SUIT 


a. Reconsideration 

(1) A claim may be reconsidered by the 
original Commission, a successor Commission, or a 
newly appointed Commission, upon written request 
from the claimant, upon the original Commission's 
own initiative, or upon instmctions from a superior 
officer authorized to take action on the claim, when it 
appears that the original action was incorrect in law or 
fact based on the evidence of record at the time of the 
action or based on evidence subsequently received. 

(2) If the Commission concludes that the 
original recommendation was incorrect, it will modify 
the decision or forward a supplemental 
recommendation to or through the appointing authority 
for action. If the Commission concludes that the 
original recommendation was correct, it will affirm the 
decision, and forward a memorandum for information 
to or through the appointing authority. Notification to 
claimant will be as prescribed in these regulations. 

(3) Claimant's request for reconsideration 
of the decision of the Commission or the action of a 
higher authority should indicate the legal or factual 
basis asserted as grounds for relief When action on 
reconsideration has been completed and approved, the 
appointing authority shall notify the claimant that such 
action is final and conclusive by law. 10 U.S.C. § 
2735. 

b. Appeal . There is no right of appeal under 
this statute. 

c. Suit . The United States has not consented 
to be sued under this statute. 

0820 PAYMENT 

a. Documentation . When a recommendation for 
payment within the adjudicating authority of the Com¬ 
mission has been approved by the appointing authority, 
or when a larger award has been approved by appro¬ 
priate higher authority, the appointing authority shall 
submit the original and one copy of the approved 
report of the Commission to the nearest Navy or 
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 eopy of every voucher to: The Offiee of the 
Judge Advoeate General (Code 64), 1322 Patterson 
Ave, SE, Washington Navy Yard, DC 20374-5066. 

c. Aceounting Data . Foreign claims are paid 
from a eentrally managed budget with a fund eitation 
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 "$S" equals the last 
two digits of the fiseal year when the deposit is 
actually made). The Line of Accounting Data (LOA) 
that must appear on every Foreign Claim Voueher is: 
"AA 17+1804.12TL 420 00013 H 068892 2D -t##### 
00013+A1001X" (where "+" is the last digit of the 
fiseal year when the deposit is aetually made, and 
where "#####" is the five digit UIC of the eommand 
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 . Advanee payments 
may be paid under this seetion. 

f Currency . All payments under this ehapter 
shall be made in the local currency of the country in 
which the elaim arose or in the currency of the eountry 
where the elaimant resides at the time such payment, if 
different from the country where the claim arose, due 
to Federal eurrency 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 Efnited 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 

d. 

affidavit or instrument 

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 

This chapter designates individuals authorized to 
perform notarial acts and compiles existing laws, 
regulations, and guidelines on the authority of U.S. 
Armed Forces members to administer oaths; take af¬ 
fidavits, sworn statements, or depositions; take 
aeknowledgments; and perfonn other notarial acts. 

0902 FEDERAL AUTHORITY TO 

ADMINISTER OATHS AND PERFORM 
NOTARIAL ACTS 

a. Relationship to state authority . The authority 
to perform notarial aets under 10 U.S.C. § 1044a is 
separate and apart from any authority provided by 
State law. Persons perfonning notarial acts under the 
former statute derive their authority under Federal, not 
State, law. Federal notarial authority may be exercised 
without regard to geographie limitation; State notarial 
authority, on the other hand, may only be exercised in 
the state concerned. The validity of notarial aets 
performed pursuant to 10 U.S.C. § 1044a is a matter of 
Federal law. 

b. Authority to administer oaths with regard to 
military administration and military justice 

(1) Under the authority of 10 U.S.C. § 936(a), 
the following persons on active duty or performing 
inactive-duty training may administer oaths for the 
purposes of military administration, including military 
justice: 

(a) Judge advoeates; 

(b) Summary courts-martial; 

(c) Adjutants, assistant adjutants, acting 
adjutants and personnel adjutants; 

(d) Commanding officers of the Navy, 
Marine Corps, and Coast Guard; 


(e) Staff judge advocates and legal 
officers, and acting or assistant staff judge advocates 
and legal offieers; 

(f) Offieers of the grade of 0-4 and 

above; 

(g) Executive and administrative 

officers; 

(h) Marine Corps officers with a 
Military Oecupational Specialty (MOS) of 4430, while 
assigned as legal administrative offieers; 

(i) All limited duty officers (law), all 
legalmen E-7 and above, all independent duty 
legalmen, and all legalmen assigned to legal assistance 
offices or staff judge advocates providing legal 
assistance; and 

(j) Persons empowered to authorize 
searches, for any purpose relating to a search 
authorization. 

(2) Under the authority of 10 U.S.C. § 
936(b), the following persons on active duty or 
performing inactive-duty training may administer oaths 
necessary in performing their duties: 

(a) The president, military judge, trial 
counsel, and assistant trial counsel for all general and 
speeial courts-martial; 

(b) The president and counsel for the 
court of any court of inquiry; 


(c) 

depositions; 

Offieers 

designated 

to take 

(d) 

investigations; 

Persons 

detailed to 

conduct 


(e) Recraiting officers; 

(f) Officers designated and acting as a 


9-2 





Casualty Assistance Calls Program Officer; and 

(g) The president and recorder of 
personnel seleetion boards. 

(3) Under the authority of 10 U.S.C. §§ 502 
and 1031, any U.S. Armed Forces commissioned 
officer of any Regular or Reserve component, whether 
or not on active duty, may administer oaths required 
for appointment, enlistment, or commission in the 
Armed Forces. 

c. Authority to act as a notary 

(1) Under the authority of 10 U.S.C. § 1044a, 
the following persons may perform the notarial aets 
listed in subparagraph (2) below for persons listed in 
section 0706 of this Manual as eligible for legal 
assistanee, and for others as authorized in 10 U.S.C. § 
1044a; 

(a) Civilian attorneys serving as legal 
assistance offieers; 

(b) the following persons while on active 
duty or performing inactive-duty training: 

(i) Adjutants, assistant adjutants and 
personnel adjutants; 

(ii) Officers of the grade of 0-4 and 

above; 

(hi) Commanding, executive and 
administrative officers; 

(iv) Legal and assistant legal officers; 

(v) Marine Corps offieers with MOS 
4430 while assigned as legal administrative officers; 

(vi) Judge advocates; 

(vii) All limited duty officers (law), all 
legalmen E-7 and above, all independent duty 
legalmen, and all legalmen assigned to legal assistance 
offices or staff judge advocates providing legal 
assistance; and 

(viii) Marine Corps legal services 
speeialists E-5 and above, while serving in legal 


assistance billets, when authorized by the eognizant 
commander. 

(2) Subject to the guidance set forth in 
section 0908, the following acts may be performed by 
the persons listed above while aeting as a notary; 

(a) Administration of oaths, 
aeknowledgments, affidavits, and affirmations; and 

(b) Certification of copies as true. 

d. No fees . Fees may not be paid or received for 
the administration of any oath or the performanee of 
any notarial act under the authority of 10 U.S.C. §§ 
936 or 1044a. 

e. Duties and responsibilities of notaries . Persons 
aeting as notaries under the authority of 10 U.S.C. § 
1044a are governed in the performance of their duties 
by, and must comply with, section 0908. 

f Proof of authority . The signature of any person 
administering an oath or acting as a notary under the 
authority of 10 U.S.C. §§ 936 or 1044a together with 
the title of his or her office is prima facie evidence that 
the signature is genuine, that the person holds the 
office designated, and that he or she has the authority 
to so act. 

g. Legal effectiveness . Notarial acts performed 
under the authority of 10 U.S.C. § 1044a are legally 
effective for all purposes. Oaths administered under 
the authority of 10 U.S.C. § 936 are legally effective 
for the purposes for whieh the oath is administered. 
Federal notarial authority may be exercised without 
regard to geographic limitations and is not dependent 
on any state or local law. 

h. Fomiats . Formats recommended for taking 
aeknowledgements and executing sworn instruments 
are set forth in Appendix A-9-a and A-9-b, 
respectively. 

0903 NON-FEDERAL AUTHORITY TO 
PEREORM NOTARIAL ACTS 

a. Non-Federal authority . Separate from, but 
related to, the Federal authority to perfonn notarial acts 
(see 0902a), the laws of most States, the Distriet of 
Columbia, and of U.S. possessions, territories, and 


9-3 










commonwealths authorize certain U.S. Armed Forces 
members to perform for U.S. Armed Forces members, 
their dependents, and accompanying civilians one or 
more of the following notarial acts: 

(1) Administer oaths; 

(2) Take affidavits; 

(3) Take sworn statements; 

(4) Take depositions; and 

(5) Take acknowledgements. 

b. Exercise of non-federal authority . 
Occasionally, a situation may arise in which the 
exercise of State, vice Federal, notarial authority may 
be warranted. Before exercising such authority, the 
notary official should detennine: 

(1) The State or States where the instrument 
is to be used; 


(2) Who has authority to perfonn the 
particular notarial act under the laws of the 
jurisdietion(s) involved (see section 0910); and 

(3) For whom the particular notarial function 
may be perfonned under the laws of the jurisdiction(s) 
involved (see section 0910). 

c. Legal effectiveness . When exercising State 
authority, the statutory requirements of the 
jurisdietion(s) in which the instrument is to be used 
determine the legal effeetiveness of the notarial acts 
performed. When a single instrument requiring 
acknowledgment is to be used in more than one 
jurisdietion, the aeknowledgment must comply with 
the laws of every jurisdiction in which it is to be used. 

d. Civil notaries . Although both Federal and 
State law authorize a variety of Federal officials to 
perform notarial acts, it is permissible in the United 
States to use loeally appointed notaries public, or when 
abroad, a U.S. eonsul. 


PART B-COMPILATION OF NON-FEDERAL NOTARIAL PROCEDURES AND LAW 


0904 INTRODUCTION 

Part B provides general guidance for notarial acts and 
specific statutory requirements in eaeh State, the 
District of Columbia, and United States possessions, 
territories, and commonwealths. U.S. Armed Forees 
members should use the fonnats in Appendix A-9-a 
and A-9-b for effective execution. When available, 
consult a judge advocate. Any instruetion from a 
civilian attorney who prepares and forwards an 
instrument for execution should be followed earefully. 

0905 UNIFORM ACKNOWLEDGMENT 
ACT, UNIEORM RECOGNITION 
OFACKNOWLEDGMENTS ACT AND 
UNIFORM LAW ON NOTARIAL 
ACTS 

Several States have enacted the Uniform 
Acknowledgment Act or its successors, the Uniform 
Reeognition of Acknowledgments Act and its 
successor, the Uniform Law on Notarial Acts. In 
many instances, these Acts have not been accompanied 


by repeal or revision of existing statutory laws on the 
power to perfonn notarial acts, resulting in overlapping 
or eonflicting authorization. The alphabetical listing of 
States in section 0910 references those jurisdictions 
which have enacted the Acts, specifies additional 
statutes in those jurisdietions granting similar powers, 
and summarizes each jurisdiction's authorization to 
perform notarial aets. In jurisdictions with conflicting 
authorization, the most restrictive view is provided to 
assure the instrument's effectiveness. Any notarial 
offieial having questions about any of these statutes 
should eonsult a judge advocate before performing a 
notarial aet. 

0906 ACKNOWLEDGMENTS 

An aeknowledgment is a formal deelaration or 
admission before a properly authorized official, by a 
person who has executed an instrument, that such 
instrument is his act or deed. It includes the certificate 
or written evidenee of the aet of acknowledgment 
made by the officer, as well as the act itself 
Acknowledgments relate primarily to written 
instruments affeeting land, or granting or creating 


9-4 





legal rights. Statutes may require that deeds, mort¬ 
gages, leases (particularly those over a certain length 
of years), or powers of attorney be acknowledged. See 
Appendix A-9-a. 

0907 SWORN INSTRUMENTS 

A sworn instrument is a written declaration signed by a 
person who declares rmder oath before a properly 
authorized official that the facts set forth are true to the 
best of his knowledge and belief Sworn instruments 
include affidavits, sworn statements, and depositions. 
See Appendix A-9-b. 

0908 GENERAL INSTRUCTIONS FOR 
SWORN INSTRUMENTS 

a. Duties and responsibilities of the notary . 
Notaries may not engage in the practice of law and, 
accordingly, may not draw up legal documents, such as 
wills, contracts, mortgages, and deeds. 

(1) Notaries may not sign their names to 
blank instruments. Nor may they certify the authen¬ 
ticity of public, registered, or court records or 
documents, or issue certified copies of such documents 
or records. They may not take an affidavit or an 
acknowledgment unless the person who signed the 
instmment is actually in their presence. Notaries must 
administer oaths, if an oath is authorized or required, in 
person. Notaries may not falsely execute certificates, 
such as predating or postdating the document. The 
notarial authority may not be delegated to another 
person. 

(2) Notaries may be subject to civil and 
criminal liability, including fines and imprisonment for 
misconduct, negligence, malpractice, or other breach 
of official duties. 

b. How to take an acknowledgment 

(1) The acknowledgment must be made in 
the presence of the notary, who must identify both the 
person and the person's military status or relationship. 
Notaries must decline to take the acknowledgment if 
identification is impossible. Notaries may not take 
their own acknowledgments. Notaries should ensure 
the correct dates are properly inserted for any 
certificate verified or acknowledged before them. 
Changes, cross outs, and erasures in the body of the 


acknowledgment should be avoided. If unavoidable, 
they should be initialed by the notary wherever they 
appear. 

(2) If a signature has been affixed outside 
the notary's presence, the signer must verify, affirm, 
and acknowledge fhe signature on the ac¬ 
knowledgment or affidavit. The notary should 
compare the signature affixed with a signature made in 
the notary's presence and on the signer's identification. 

c. How to take a sworn affidavit or instrument . 
An affidavit is a sworn statement, made by a person 
known as the affiant or deponent. The facts in the 
affidavit are sworn or affirmed to be true by the affiant 
before the notary. See Section 0908d on taking oaths. 

(1) The notary officer should sign his name, 
rank, office title, name of command, and Social 
Security number. The notary must have authority in 
the venue or the place the affidavit is administered. 
The venue is the name of the State, and the county, or 
other territorial subdivision to which jurisdiction is 
limited. 

(2) The notary need not be concerned with 
the affiant's veracity. The notary is not required to 
independently verify the truth of the facts stated in the 
affidavit. The affiant may be subject to prosecution for 
perjury if the facts are willfully misstafed. In taking 
verification upon oath or affirmation, the notarial 
officer must identify, eifher from personal knowledge 
or salisfactory evidence, that the person appearing 
before the officer and making the verification, is the 
person whose signature appears on the statement being 
verified. 

d. How to take an oath . Oaths and affinnations 
are pledges whereby affiants swear or affirm the truth 
of statements made by them. Oaths and affinnations 
are used when taking affidavits or sworn instruments. 
See Section 0908c. 

(1) Persons administering the oath should 
tell the affiant to raise his right hand and say the 
following: 

"Do you swear that the information contained 
in this document is the truth to the best of your 
knowledge so help you God?" 

(2) Affirmation may be administered in the 


9-5 






following fonn: 


"Do you solemnly, sincerely, and truly declare 
or affirm the information contained in this document is 
the truth to the best of your knowledge?" 

(3) The reply should be "I do" or similar 
words of assent to both the oath and affirmation. 

e. Seal of the person executing document . 
Although most jurisdictions no longer distinguish 
between sealed and unsealed instruments, some require 
certain instruments be exeeuted under seal. When a 
seal is required, insert the statement "witness the fol¬ 
lowing signature and seal," immediately preceding the 
signature of the person executing the document. In 
most jurisdictions, typing, printing, or writing "(SEA- 
L)" or the symbol "(LS)" after the signature completes 
the sealing of the instrument. Others also require that 
the intention to create a sealed instrument be refleeted 
in the body of the instrument. Only use a seal if 
specifically required by statute or other law. Seals 
should be used cautiously, since in some States 
instruments under seal create special legal 
consequences or have a unique status. Consult a judge 
advocate as necessary. 

f Seal of the person performing notarial act . 
State statutes authorize the performance of notarial acts 
without an impressed or raised seal. The formats in 
Appendix A-9-a and A-9-b provide evidence of an 
officer's authority to take acknowledgments or sworn 
instruments. 

g. Witnesses . Acknowledgment of instruments 
which may affect title to real property must be 
witnessed by three persons. See Appendix A-9-a. The 
name, grade or rate, branch of service. Social Security 
number, and pennanent home address of each witness 
should be typed or printed below the signature of the 
witness. 

h. By_ whom _ acknowledgments _or_ sworn 

instruments may be taken . The majority of State 
statutes authorize any commissioned officer with the 
grade of ensign (or second lieutenant) or higher to take 
acknowledgments and sworn instruments. Section 
0910 indicates States that require the commissioned 
officer have a higher grade, or permit commissioned, 
noncommissioned, or petty officers of a lower grade or 
rate, to perfonn these acts, or where they restrict the 
authority of officers to perform certain functions. 


i. When, _ where, _and_for_ whom 

acknowledgments and sworn instruments may be 

taken . The alphabetical listing of States in section 0910 
should be consulted to determine when, where, and for 
whom, acknowledgments and sworn instruments may 
be taken. 

j. Procedure _for_ certifying _a_ copy _of_a 

document . In certifying or attesting a copy of a 
document or other item, the notarial officer must 
determine that the proffered copy is a full, true, and 
accurate transcription or reproduction of that copied, 
by carefully and personally comparing the copy and 
original or observing the copying process. Documents 
can not be certified as true copies based upon the 
assertion of the requester. 

k. Identifying the person requesting the notarial 
act . In witnessing or attesting a signature, the notarial 
officer must determine that the person appearing 
before the officer is the person named in the document 
to be signed. A notarial officer has satisfactory 
evidence of the identity of the person whose signature 
is on a document and that the person is within the class 
of persons for whom the notarial act may be 
performed, if that person is: (1) personally known to 
the notarial officer, (2) identified upon the oath or 
affirmation of a credible witness personally known to 
the notarial officer, or (3) identified by identification 
documents. 

0909 NOTARY LOGS 

Notaries must be able to confirm specific notary acts 
they performed many years after the act. A notary log, 
therefore, should be maintained and kept indefinitely 
by each notary, even after release from active duty. 
The log should include signer's name and signature, 
document, date, and location. These personal logs may 
not be made part of any Navy system of records and 
are not to be passed to other Navy personnel. 

0910 SPECIAL INSTRUCTIONS FOR 
SWORN INSTRUMENTS 
(SUMMARY OF STATE LAWS) 

This section is an alphabetical summary of 
requirements to take acknowledgments, administer 
oaths, and prepare sworn instruments pursuant to 
authority granted to specified military officials under 
the laws of each State, the District of Columbia, and 


9-6 












United States possessions, territories, and 
commonwealths. Unless otherwise indicated, 
"commissioned officer" as used in this section includes 
commissioned warrant officers. Unless otherwise indi¬ 
cated, "U.S. Armed Forces members" does not include 
spouses, dependents of such members, or civilians 
employed by the Armed Forces. The limitations herein 
are not applicable to the exercise of Federal notarial 
authority under 10 U.S.C. § 1044a, or to the 
administration of oaths pursuant to 10 U.S.C. §936 
(Article 136, UCMJ). 

ALABAMA Ala. Code § 35-4-26 (1991). 

1. Acknowledgments . Any commissioned officer 
in the U.S. Armed Forces may take acknowledgements 
of any person, outside the State . 

2. Oaths and sworn instruments . Same as for 
acknowledgements. 

3. Seal . Not required. Use format in 
A-9-a or A-9-b. 

ALASKA Alaska Stat. § 34.15.160 (1985); enacted 
Uniform Recognition of Acknowledgments Act as 

Alaska Stat. §§ 09.63.010-. 130 (1983 & Supp. 1991). 

1. Acknowledgments . Any commissioned 
officer on active duty in the U.S. Armed Forces and 
others authorized by regulation of the 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. 
Armed Forces members, and (c) others serving with or 
accompanying the Armed Forces. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or 
A-9-b. 

ARIZONA Enacted Uniform _ Recognition _of 

Acknowledgments Act as Ariz. Rev. Stat. Ann. §§ 33- 
501 to -508 (1974 & Supp. 1987) and Uniform 
Acknowledgments Act as Ariz. Rev. Stat. Ann. §§ 33- 
511 to-513. (Supp. 1987). 

1. Acknowledgments . Any commissioned officer 
on active duty in the U.S. Armed Forces and others 


authorized by regulation of the Armed Forces to 
perform notarial acts may take acknowledgments, out¬ 
side the State , of the following persons and their 
dependents: (a) U.S. merchant seamen, (b) U.S. 
Armed Forces members, and (c) others serving with or 
accompanying the Armed Forces. 

2. Oaths and sworn instmments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

ARKANSAS Enacted Uniform _ Acknowledgments 

Act as Ark. Code Ann. §§ 16-47-201 to -218 (1987); 
Ark. Code. Ann. § 16-2-104 (1987); Ark. Code Ann. 
§ 16-47-109 (validating all acknowledgments of Armed 
Forces members taken prior to March 20, 1945). 

1. Acknowledgments . Any commissioned officer, 
excluding warrant officers, on active duty in the U.S. 
Armed Forces may take acknowledgments, at any 
place , of persons serving in or with the U.S. Armed 
Forces and their dependents. 

2. Oaths and sworn instruments . Any person in 
the U.S. Armed Forces may make an oath to any 
affidavit before any commissioned officer. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

CALIFORNIA Cal. Civ. Code Ann. § 1183.5 (West 
1992). 

1. Acknowledgments . Any officer on active duty 
in the U.S. Armed Forces with the general powers of a 
notary public under section 0902 may take 
acknowledgments, at any place, for any person serving 
in the U.S. Armed Forces, or such person's spouse, and 
for any person serving with, employed by, or 
accompanying such U.S. Armed Forces outside the 
United States, the Canal Zone, Puerto Rico, Guam, and 
the Virgin Islands. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-aorA- 
9-b. 


9-7 





















COLORADO Colo. Rev. Stat. Ann. § 24-12-104 

(1973); enacted Tlniform _ Recognition _of 

Acknowledgments Act as Colo. Rev. Stat. Ann. §§12- 
55-201 to-211 (1991). 

1. Acknowledgments . Any commissioned officer 
on active duty in the U.S. Armed Forces and others 
authorized by regulation of the Armed Forces to 
perform notarial acts may take acknowledgments, 
outside the State , of the following persons and their 
dependents: (a) U.S. merchant seamen, (b) U.S. 
Armed Forces members, and (c) others serving with or 
accompanying the Armed Forces. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-aorA- 
9-b. 

CONNECTICUT Conn. Gen. Stat. Ann. §§ 1-24, 27- 
137 (West 1990); enacted Uniform Acknowledgment 
Act as Conn. Gen. Stat. Ann. §§ 1-28 to -41 (West 
1990) and Uniform Recognition of Acknowledgments 
Act as Conn. Gen. Stat. Ann. §§ 1-57 to -65 (West 
1990). 

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, 
outside the State , of the following persons and their 
dependents: (a) U.S. merchant seamen, (b) U.S. 
Armed Forces members, and (c) others serving with or 
accompanying the U.S. Armed Forces. Any 
commissioned officer, excluding warrant officers, 
on active duty in the Armed Forces may take 
acknowledgments, inside the State , of Armed Forces 
members. 

2. Oaths and sworn instruments . U.S. Armed 
Forces judge advocates, law specialists in the Coast 
Guard, adjutants, assistant adjutants, acting adjutants, 
personnel adjutants, commanding officers, executive 
officers, and those officers whose rank is lieutenant 
commander or major or higher may take oaths, at any 
place , of persons serving in or with the U.S. Armed 
Forces and their spouses. In addition, 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 oaths, 
outside the State , of the following persons and their 
dependents: (a) U.S. merchant seamen, (b) U.S. 


Armed Forces members, and (c) others serving with or 
accompanying the U.S. Armed Forces. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

DELAWARE Del. Code Ann. tit. 25, § 130 (1989); 
enacted Uniform Law on Notarial Acts as Del. Code 
Ann. tit. 29, §§ 4321-4328 (Supp. 1991). 

1. Acknowledgments . Any commissioned officer, 
excluding warrant officers, on active duty in the U.S. 
Armed Forces may take acknowledgments of: (a) U.S. 
Armed Forces members at any place , (b) merchant 
seamen outside the limits of the 48 contiguous States 
and the District of Columbia, and (c) others outside 
said limits by permission, assignment, or direction of 
any department or official of the U.S. Government, in 
connection with any activity pertaining to any war in 
which the United States is then engaged. In addition, 
any such officer may take acknowledgments of any 
person, at any place , pursuant to section 0902. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

DISTRICT OF COLUMBIA 

No local statutory authority for any U.S. Armed Forces 
member to take acknowledgments, oaths, or sworn 
instruments. See section 0902 for Federal authority to 
perform these functions. 

FLORIDA Fla. Stat. Ann. § 92.51, 695.031 (West 
1989). 

1. Acknowledgments . Any commissioned 
officer, excluding warrant officers, on active duty in 
the U.S. Armed Forces may take acknowledgments, at 
any place , of U.S. Armed Forces members, their 
spouses, and persons whose duties require their 
presence with the U.S. Armed Forces. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 


9-8 






















GEORGIA Ga. Code Aim. §§ 45-17-30 to -34 
(Michie 1990). 

1. Acknowledgments . Any commissioned officer 
may take acknowledgments of any person, at any 
place , for Georgia property only. In addition, any 
commissioned officer on active duty in the U.S. Armed 
Forces may take acknowledgments of the following 
persons and their spouses, dependent children, and 
other dependents: (a) U.S. Armed Forces members at 
any place , (b) merchant seamen outside the limits of 
the United States, and (c) others outside said limits by 
permission, assignment, or direction of any department 
or official of the U.S. Government, in connection with 
any activity pertaining to the prosecution of any war in 
which the United States is then engaged. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

GUAM Guam Gov't Code § 22200 (1970); enacted 
Uniform Recognition of Acknowledgments Act as 

Guam Civ. Code §§ 1208-1212.4 (Supp. 1973). 

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, out¬ 
side Guam , for the following persons and their 
dependents: (a) U.S. merchant seamen, (b) U.S. 
Armed Forces members, and (c) others serving with or 
accompanying the U.S. Armed Forces. 

2. Oaths and sworn instruments . Same as for ack¬ 
nowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

HAWAII Haw. Rev. Stat. § 502-50 (Michie 1993). 

1. Acknowledgments . Any officer in the U.S. 
Armed Forces authorized in section 0902 may take 
acknowledgments of any person in the U.S. Armed 
Forces at any place , including any person outside the 
United States. 

2. Oaths and sworn instruments . Same as for 


acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

IDAHO Idaho Code §§ 55-705, 55-713 (1991). 

1. Acknowledgments . Any officer in the U.S. 
Armed Forces designated to take a deposition may take 
the acknowledgment, at any place , of persons in the 
U.S. Armed Forces or otherwise subject to military 
law, their wives, and dependents. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

ILLINOIS Ill. Ann. Stat. eh. 30 para. 19 (Smith-Hurd 

Supp. 1992); enacted Uniform _ Recognition _of 

Acknowledgments Act as Ill. Ann. Stat. ch. 30, Para. 
221 -230 (Smith-Hurd Supp. 1992). 

1. Acknowledgments . Any commissioned officer, 
excluding warrant officers, 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 
and persons and their dependents: (a) U.S. merchant 
seamen, (b) U.S. Armed Forces members, and (c) 
others serving with or accompanying the U.S. Armed 
Forces. 

2. Oaths and sworn statements . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

INDIANA Ind. Code Ann. §§ 32-2-3-1 to -5 (Bums 
1980 & Supp. 1988). 

1. Acknowledgments . Any commissioned 
officer, excluding warrant officers, on active duty in 
the U.S. Armed Forces may take acknowledgments of: 
(a) those serving in or with the U.S. Armed Forces at 
any place , (b) merchant seamen outside the limits of 
the 50 States and the District of Columbia, and (c) 
others outside said limits by pennission, assignment, or 
direction of any department or office of the U.S. 
Government, for any activity pertaining to the 


9-9 






















prosecution of any war in which the United States is 
then engaged. 

2. Oaths and sworn instruments . Same as for ack¬ 
nowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

IOWA Iowa Code Ann. § 558.26 (West 1950); Iowa 
Rules of Court 153 (West 1978). 

1. Acknowledgments . Any commissioned 
officer, excluding warrant officers, on active duty in 
the U.S. Armed Forces may take acknowledgments, at 
any place , of those serving in or with the U.S. Armed 
Forces. 

2. Oaths and sworn instmments . Depositions 

may 

be taken by any commissioned officer under whose 
command the person giving the deposition is serving, 
or by any commissioned officer of the Judge Advocate 
General's Corps. 

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. 
1991). 

1. Acknowledgments . Any commissioned officer 
on active duty in the U.S. Armed Forces may take 
acknowledgments of any person, at any place , pursuant 
to section 0902. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

KENTUCKY Ky. Rev. Stat. Ann. § 384.080 
(Michie/Bobbs-Merrill 1972); enacted Uniform 
Recognition of Acknowledgments Act as Ky. Rev. 
Stat. Ann. §§ 423.110-.190 (Michie/Bobbs-Merrill 
1972 & Supp. 1990). 

1. Acknowledgments . Any commissioned officer 
on active duty in the U.S. Armed Forces and others 
authorized by regulation of the U.S. Anned Forces to 
perform notarial acts may take acknowledgments, of 


the following persons and their dependents; (a) U.S. 
merchant seamen outside the limits of the United 
States, (b) U.S. Armed Forces members outside the 
State, and (c) others outside said limits by permission, 
assigmnent, or direction of any department or official 
of the U.S. Government. 

2. Oaths and sworn instmments . Same as for ack¬ 
nowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

LOUISIANA La. Rev. Stat. Ann. § 35:7 (West 1985); 
enacted modified version of Uniform 
Acknowledgments Act as La. Rev. Stat. Amn. §§ 
35:511-513 (West 1985). 

1. Acknowledgments . Any commissioned officer 
on active duty in the U.S. Armed Forces may take 
acknowledgments, at any place , of persons serving in 
or with the U.S. Armed Forces or the Coast Guard. 

2. Oaths and sworn instruments . Same as for ack¬ 
nowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

MAINE Me. Rev. Stat. Ann. tit. 33 § 203 (West 1988 

& Supp. 1992); enacted Uniform _ Recognition of 

Acknowledgments Act as Me. Rev. Stat. Ann. tit. 4 §§ 
1011-1019(1964). 

1. Acknowledgments . Any commissioned 
officer, excluding warrant officers, 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 acknowledgements, at any place , 
of the following persons and their dependents: (a) 
U.S. merchant seamen, (b) U.S. Armed Forces 
members, and (c) others serving with or accompanying 
the U.S. Armed Forces. 

2. Oaths and sworn statements . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

MARYLAND Md. Ann. Code art. 18, § 15 (Michie 
1992); enacted Uniform Acknowledgments Act as Md. 
Ann. Code art. 18, §§ 1-14 (1987). 


9-10 

























1. Acknowledgments . Any commissioned 
officer, excluding warrant officers, on active duty in 
the U.S. Armed Forces may take acknowledgments of: 
(a) U.S. Armed Forces members, and their spouses 
and dependents, at any place , (b) merchant seamen 
outside the limits of the 48 contiguous States and the 
District of Columbia, and (c) others outside said limits 
by pennission, assignment, or direction of any 
department or official of the U.S. Government, in 
connection with any activity pertaining to the 
prosecution of any war in which the United States is 
then engaged. 

2. Oaths and sworn instruments . Same as for 
acknowledgments except there is no provision for 
officers to take oaths or sworn statements of spouses or 
dependents. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

MASSACHUSETTS Mass. Ann. Laws ch. 222, § 11 
(West 1988 & Supp. 1991-92); Mass. Ann. Laws. 
Spec. L. 35:18 (Law. Co-op 1979). 

1. Acknowledgments . Any commissioned officer, 
excluding warrant officers, on active duty in the U.S. 
Armed Forces may take acknowledgments, at any 
place , of persons serving in or with the U.S. Armed 
Forces and their dependents. Acknowledgements of 
U.S. Armed Forces members or their dependents must 
include the member's Social Security number. 

2. Oaths and sworn instruments . Same as for 
acknowledgments except there is no provision for 
officers to take oaths or sworn instruments of 
dependents. Sworn instruments are limited to af¬ 
fidavits and depositions. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

MICHIGAN Mich. Stat. Ann § 27A.1440 (Callaghan 

1986); enacted Uniform _ Recognition _of 

Acknowledgments Act as Mich. Stat. Ann. §§ 

26.607(1)-(10) (Callaghan 1970). 

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 depen¬ 
dents: (a) U.S. Armed Forces members, (b) civilian 
employees of the U.S. Armed Forces, and (c) U.S. 
merchant seamen. 

2. Oaths _and_ sworn _ instruments . Any 

commissioned officer on active duty in the U.S. Armed 
Forces may administer oaths or affidavits, at any place , 
for the following persons and their dependents: (a) 
persons serving in or with the U.S. Anned Forces, and 
(b) civilian employees of the U.S. Anned Forces. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

MINNESOTA Enacted Uniform Law on Notarial 
Acts as Minn. Stat. Ann. §§ 358.41 -.50 (West 1991). 

1. Acknowledgments . Any commissioned officer 
on active duty in the U.S. Armed Forces may take 
acknowledgments of any person, at any place , pursuant 
to section 0902. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

MISSISSIPPI Miss. Code Ann. §§ 25-33-1 to -23, 89- 
3-5 (1972). 

1. Acknowledgments . Any commissioned 
officer, excluding warrant officers, on active 

duty in the U.S. Armed Forces may take 
acknowledgments of: (a) U.S. Armed Forces members 
and their spouses at any place , (b) merchant seamen 
outside the limits of the U.S., and (c) others outside 
such limits by permission, assignment, or direction of 
any department or official of the U.S. Government, in 
connection with any activity pertaining to the 
prosecution of any war in which the United States is 
then engaged. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 


9-11 




















MISSOURI Mo. Ann. Stat. § 442.160 (1986 & Supp. 
1992); Mo. Ann. Stat. § 492.070 (1949 & Supp. 1992). 

1. Acknowledgments . Any commissioned 
officer, excluding warrant officers, on active duty in 
the U.S. Armed Forces may take acknowledgments for 
active duty U.S. Armed Forces members and their 
spouses, when joint or separate acknowledgment to the 
same instrument is required. 

2. Oaths and sworn instruments . Same as for 
acknowledgments except there is no provision for 
officers to take oaths or sworn statements of spouses. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

MONTANA Mont. Code Ann. §§ 1-5-105, 1-5-203 
(1991). 

1. Acknowledgments . Any commissioned officer, 
excluding warrant officers, on active duty in the U.S. 
Armed Forces may take acknowledgments of; (a) U.S. 
Armed Forces members, (b) merchant seamen outside 
the limits of the continental United States, excluding 
Alaska, and (c) others outside the limits of the United 
States by permission, assignment, or direction of any 
department or official of the U.S. Government for any 
activity pertaining to the prosecution of any war in 
which the United States is then engaged. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

NEBRASKA Enacted T Iniform _ Recognition _of 

Acknowledgments Act as Neb. Rev. Stat. §§ 64-201, 
64-206, 76-227 (1986). 

1. Acknowledgments . Any commissioned officer 
on active duty in the U.S. Armed Forces and others 
authorized by regulation of the U.S. Anned 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. 
Armed Forces members, and (c) others serving with or 
accompanying the U.S. Armed Forces. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 


3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

NEVADA Nev. Rev. Stat. Ann. § 111.305 (Michie 
1986). 

1. Acknowledgments . Any commissioned 
officer, excluding warrant officers, on active duty in 
the U.S. Armed Forces may take acknowledgments, at 
any place , of any person serving in or with the U.S. 
Armed Forces, or any person whose duties require his 
or her presence with the U.S. Armed Forces. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

NEW HAMPSHIRE Enacted Uniform Ac¬ 
knowledgments Act as N.Fl. Rev. Stat. Ann. § 456:1- 
:15 (1983) and Uniform _ Recognition _of_ Ack¬ 

nowledgments Act as N.H. Rev. Stat. § 456-A:l to -:9 
(1983). 

1. Acknowledgments . Any commissioned 
officer, excluding warrant officers, on active duty in 
the U.S. Armed Forces and others authorized by 
regulation of the Armed Forces to perform notarial acts 
may take acknowledgments, outside the State , of the 
following persons and their dependents: (a) U.S. mer¬ 
chant seaman, (b) U.S. Armed Forces members, and 
(c) others serving with or accompanying the U.S. 
Armed Forces. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

NEW JERSEY N.J. Stat. Ann. § 38:23A-1 (West 
1968). 

1. Acknowledgments . Any commissioned officer 
in the U.S. Armed Forces may take acknowledgments 
of: (a) U.S. Anned Forces members and their spouses 
at any place , (b) merchant seamen outside the limits of 
the 48 contiguous States and the District of Columbia, 
and (c) others outside said limits by permission, 
assignment, or direction of any department or official 


9-12 























of the U.S. Government, in conneetion with any 
activity pertaining to the proseeution of any war in 
which the United States Government is then engaged, 
or in time of emergency. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

NEW MEXICO N.M. Stat. Ann. § 14-13-7 (1988). 

1. Acknowledgments . Any commissioned officer, 
exeluding warrant officers, on active duty in the U.S. 
Armed Forces may take acknowledgments of; (a) U.S. 
Armed Forces members and their spouses at any place , 
(b) merehant seamen outside the limits of the 50 States 
and the District of Columbia, and (c) others outside 
said limits by permission, assignment, or direetion of 
any department or official of the U.S. Government, in 
conneetion with any activity pertaining to the pros¬ 
ecution of any war in which the United States is then 
engaged. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

NEW YORK N.Y. Civ. Prae. L. & R. § 2309 
(McKinney 1991); N.Y. Real Prop. Law §§ 300, 312 
(McKinney 1989). 

1. Acknowledgments . Any commissioned officer, 
exeluding warrant officers, on active duty in the U.S. 
Armed Forces may take acknowledgments, for 
conveyances of real property located in this State, at 
any place , of persons serving in or with the U.S. Arm¬ 
ed Forces, their dependents, and any person attached to 
or accompanying the U.S. Armed Forces. 
Acknowledgments of U.S. Armed Forces members or 
their dependents must include the member's Social 
Security number. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 


NORTH CAROLINA N.C. Gen. Stat. § 47-2 (1991). 

1. Acknowledgments . Any commissioned offieer 
on active duty in the U.S. Armed Forces may take 
acknowledgments, at any place , of any person serving 
in or accompanying the U.S. Armed Forces, or their 
spouse. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

NORTH DAKOTA Enacted Uniform Recognition of 
Acknowledgments Act as N.D. Cent. Code Ann. §§ 
47-19-14.1,14.2, 14.6 (1978 & Supp. 1991). 

1. Acknowledgments . Any commissioned or 
noncommissioned officer on active duty in the U.S. 
Armed Forces and others authorized by regulation of 
the U.S. Armed Forees 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. Armed Forces members, and (c) 
persons serving with or accompanying the U.S. Armed 
Forces. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

OHIO Enaeted Unifonn _ Recognition _of 

Acknowledgments Act as Ohio Rev. Code Amn. §§ 
147.51-.55 (Anderson 1990). 

1. Acknowledgments . Any commissioned officer 
on aetive duty in the U.S. Armed Forces and others 
authorized by regulation of the U.S. Anned Forees to 
perform notarial acts may take aeknowledgments, 
outside the State , of the following persons and their 
dependents: (a) U.S. merchant seamen, (b) U.S. 
Armed Forees members, and (e) others serving with, 
employed by, or aceompanying the U.S. Armed Forees 
outside the United States. 

2. Oaths and sworn instniments . Same as for 
acknowledgments. 


9-13 






















3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

OKLAHOMA Okla. Stat. Aim. tit. 72, § 50.1-.4 
(West 1988); enacted Uniform Law on Notarial Acts 
as Okla. Stat. Ann. tit. 49, 

§§ 111-121 (West 1988). 

1. Acknowledgments . Any commissioned officer 
on active duty in the U.S. Armed Forces may take 
acknowledgments of any person, at any place , pursuant 
to section 0902. In addition, any person of the rank of 
sergeant, petty officer, or higher may take ac¬ 
knowledgements of U.S. Armed Forces members and 
their spouses if joint or separate acknowledgment is 
required, for deeds conveying real estate within the 
State, powers of attorney, other public instruments 
requiring acknowledgment or the taking of an oath, or 
for any other purpose. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

OREGON Enacted Uniform Law on Notarial Acts as 
Or. Rev. Stat. §§ 194.505, 545, 575 (1991). 

1. Acknowledgments . Any commissioned officer 
on active duty in the U.S. Armed Forces may take 
acknowledgments of any person, at any place , pursuant 
to section 0902. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

PENNSYLVANIA Enacted Uniform Acknow¬ 
ledgment Act as Pa. Stat. Ann. tit. 21 § 291.1-.10a 
(Purdon 1955 & Supp. 1991); Pa. Stat. Arm. tit. 57 § 
54d (Purdon 1964). 

1. Acknowledgments . Any commissioned officer, 
excluding warrant officers, on active duty in the U.S. 
Armed Forces may take acknowledgments of: (a) U.S. 
Armed Forces members and their spouses at any place ; 
(b) merchant seamen outside the limits of the 48 
contiguous States and the District of Columbia, and (c) 


others outside said limits by pennission, assignment, or 
direction of any department or official of the U.S. 
Government in connection with any activity pertaining 
to the prosecution of any war in which the United 
States is then engaged. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

PUERTO RICO P.R. Laws Ann. tit. 25, §§ 2803, 
2901-2907 (1979 & Supp. 1988). 

No local statutory authority for any U.S. Armed 
Forces member to take acknowledgments, oaths, or 
sworn instruments. See section 0902 for Federal 
authority to perform these functions. 

RHODE ISLAND R.I. Gen. Laws § 34-12-5 to -8 
(1956). 

1. Acknowledgments . Any commissioned officer, 
excluding warrant officers, on active duty in the U.S. 
Armed Forces may take acknowledgments, at any 
place , of any person outside the limits of the United 
States and of U.S. Armed Forces members and their 
dependents. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

SOUTH CAROLINA Enacted Uniform Recognition 
of Acknowledgments Act as S.C. Code Arm. §§ 26-3- 
20, -30, -50, 70 (Law. Co-op. 1991 & Supp. 1993). 

1. Acknowledgments . Any commissioned officer 
on active duty in the U.S. Armed Forces and others 
authorized by regulation of the Armed Forces to 
perform notarial acts may take acknowledgements, at 
any place , of the following persons and their depen¬ 
dents: (a) U.S. merchant seamen, (b) U.S. Armed 
Forces members, and (c) others serving with or 
accompanying the U.S. Armed Forces. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 


9-14 






















3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

SOUTH DAKOTA S.D. Codified Laws Aim. §§ 18- 
4-6 to -9, 18-3-2 to -4 (1987); enacted Unifonn 
Acknowledgment Act as S.D. Codified Laws §§ 18-5- 
1 to-18 (1987). 

1. Acknowledgments . Any commissioned 
officer, excluding warrant officers, in the U.S. Armed 
Forces may take acknowledgments, at any place , of 
any person serving in or with the U.S. Armed Forces. 

2. Oaths _and_ sworn _ instruments . Any 

commissioned officer in the U.S. Armed Forces may 
take oaths and sworn instruments of: (a) U.S. Armed 
Forces members, including the Coast Guard, (b) 
civilians serving with, employed by, or accompanying 
the U.S. Armed Forces outside the United States, and 
(c) officers of the Public Flealth Service detailed for 
duty with the U.S. Armed Forces. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

TENNESSEE Tenn. Code Ann. §§ 58-1-605 to -607 
(1989). 

1. Acknowledgments . Any commissioned officer, 
excluding warrant officers, on active duty in the U.S. 
Armed Forces may take acknowledgments, at any 
place , of U.S. Armed Forces members on active duty, 
and their spouses if they are accompanying the 
members. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

TEXAS Tex. Rev. Civ. Stat. Ann. art. 26 (Vernon 
1969 & Supp. 1993); Tex. Civ. Prac. & Rem. Code 
Ann. §§ 12L001(d), 121.007 (Vernon 1986). 

1. Acknowledgments . Any commissioned officer 
in the U.S. Armed Forces may take acknowledgments, 
at any place , of U.S. Armed Forces members, and their 
spouses. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 


3. Seal . Not required. Usefonnatin 
A-9-a or A-9-b. 

UTAH Utah Code Ann. § 57-2a-3 to 7 (Supp. 1990). 

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. 
Armed Forces members, and (c) others serving with or 
accompanying the U.S. Armed Forces. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

VERMONT Vt. Stat. Ann. tit. 12, § 5855 (1973). 

1. Acknowledgments . Any commissioned officer 
with the rank of lieutenant or higher in the Navy, or 
with equivalent rank in the Marine Corps, may take 
acknowledgments, at any place , of any person. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

VIRGIN ISLANDS V.I. Code Ann. tit. 5, § 694 
(1967); V.I. Code Ann. tit. 28, §§ 82-89 (Supp. 1992). 

1. Acknowledgments . Any commissioned officer 
on active duty in the U.S. Armed Forces and others 
authorized by regulation of the U.S. Anned Forces to 
perform notarial acts may take acknowledgments, 
outside the Virgin Islands , for the following persons 
and their dependents: (a) U.S. merchant seamen, (b) 
U.S. Armed Forces members, and (c) others serving 
with or accompanying the U.S. Armed Forces. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 


9-15 





















VIRGINIA Va. Code Ann. § 55-115 (1986); enacted 
Uniform Recognition of Acknowledgments Act as Va. 
Code Ann. § 55-118.1-3 (1986). 

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. 
Armed Forces members, (c) others serving with or 
accompanying the U.S. Armed Forces. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

WASHINGTON Wash. Rev. Code Ann. § 73.20.010 
(1982). 

1. Acknowledgments . Any commissioned officer, 
excluding warrant officers, on active duty in the U.S. 
Armed Forces may take acknowledgments of: (a) U.S. 
Armed Forces members, (b) merchant seamen serving 
outside the limits of the 48 contiguous States and the 
District of Columbia, and (c) others outside said limits 
by permission, assignment, or direction of any 
department or official of the U.S. Government, in 
connection with any activity pertaining to the prosecu¬ 
tion of any war in which the United States is then en¬ 
gaged. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

WEST VIRGINIA W. Va. Code § 39-l-4a (1982); 
W. Va. Code § 57-5-9 (1966); enacted Uniform 
Recognition of Acknowledgments Act as W. Va. Code 
§39-lA-l 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. Anned 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. 


Armed Forces members, and (c) others serving with or 
accompanying the U.S. Armed Forces. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use fonnat in A-9-a or 

A-9-b. 

WISCONSIN Wis. Stat. Ann. § 887.01 (West 1966 & 
Supp. 1988); enacted Uniform Law on Notarial Acts as 
Wis. Stat. Ann. § 706.07 (West Supp. 1988). 

1. Acknowledgments . Any commissioned officer 
on active duty in the U.S. Armed 
Forces may take acknowledgments for any person, at 
any place , pursuant to section 0902. 

2. Oaths and sworn instruments . Same as for 
acknowledgments. 

3. Seal . Not required. Use format in A-9-a or A- 
9-b. 

WYOMING Wyo. Stat. § 19-1-103 (1977). 

1. Acknowledgments . Any commissioned 
officer, excluding warrant officers, on active duty in 
the U.S. Armed Forces may take acknowledgments, at 
any place , of persons serving in or with the U.S. 
Armed Forces, and their dependents. 

2. Oaths and sworn instruments . There is no 
provision for officers to take oaths or sworn 
instruments. 

3. Seal . Not required. Use format in A-9-a or A-9-b. 


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 instmments. 


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 he 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(l) 



























* 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. Anned 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 addressi 


Authority: (authority***) 


A-9-b(l) 














*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) 




CHAPTERX 
INTERNATIONAL LAW 


1001 SCOPE 

1002 NAVAL OPERATIONS 
OVERSEAS 

a. General 

b. Areas of frequent inquiry 

1003 INTERNATIONAL 
AGREEMENTS 

a. General 

b. International agreement defined 

c. Negotiation of agreements 

d. Additional guidance 

1004 SECURITY ASSISTANCE 

a. General 

b. Statutory requirements 

c. What constitutes security 
assistance 

d. Local requests 

1005 POLITICAL ASYLUM AND 
TEMPORARY REFUGE 

a. Political asylum 

b. Temporary refuge 

c. Public armouncement 

d. Reporting requirements 

e. Custody 

f References 

1006 FOREIGN ENVIRONMENTAL 
LAW 

a. Installations 

b. Vessels, aircraft, and transient 
units 

c. Access by foreign authorities 


1007 FOREIGN LITIGATION 

a. Department of Justice 

b. Reports to the Judge 
Advocate General 

1008 IMMIGRATION AND 
NATURALIZATION 

1009 STATUS OF FORCES 
AGREEMENTS 

a. General 

b. Foreign personnel in the 
United State 

1010 FOREIGN CRIMINAL 
JURISDICTION 

a. General 

b. Policy 

c. Exercise of jurisdiction 

d. Waiver of jurisdiction 

e. Custody 

f Fees 

g. Solatia 

h. Official duty 

i. Reporting requirements 

1011 ENFORCEMENT OF U.S. 

LAW OVERSEAS 

1012 PROPERTY CAPTURED FROM 
THE ENEMY DURING ARMED 
CONFLICT 

1013 NONCOMBATANT 
EVACUATION 
PROCEDURES (NEO) 

1014 ACCEPTANCE OF GIFTS 
FROM FOREIGN 
GOVERNMENTS 


10-1 


CHAPTER X 


INTERNATIONAL LAW 


1001 SCOPE 

The purpose of this chapter is to highlight major 
international law issues likely to arise in the context of 
military operations overseas. This chapter does not 
reprint detailed material readily available elsewhere. It 
guides the reader to those sources where necessary. 

1002 NAVAL OPERATIONS OVERSEAS 

a. General . NWP-1-14M/MCWP 5-2.1 , The 

Commander's_Handbook_on_the_Law_of Naval 

Operations , sets out the fundamental principles of law 
governing operations by the U.S. Naval Service. It is 
geared to the operator in a clear, concise format. It 
provides an overview of the law of the sea, including 
jurisdiction of nations over various parts of the world's 
oceans; legal status and navigational rights of 
warships, other govermnent vessels, and military 
aircraft; protection of persons and property at sea; and 
the law of naval warfare. 

b. Areas of frequent inquiry 

(1) Presence of nuclear weapons . It is general 
U.S. policy not to deploy nuclear weapons aboard 
surface ships, attack submarines, and naval aircraft. 
However, under the U.S. Government NCND (neither 
confirm nor deny) policy, members of the Department 
of the Navy and its civilian employees shall not discuss 
the presence or absence of nuclear weapons at any 
general or specific location, including aboard any U.S. 
military station, ship, submarine, vehicle or aircraft. 
Detailed instructions on the proper response to 
inquiries for information or assurances with respect to 
the presence or absence of nuclear weapons or 
components can be found in OPNAVINST 5721.IE. 
The Department of the Navy's nuclear weapons clas¬ 
sification system is established in OPNAVINST 
S55I3.9B. Information concerning the capability of a 
unit to deliver, handle, or maintain nuclear weapons is 
unclassified. Information concerning the actual 
presence or absence of nuclear weapons in relation to a 
specific location, however, is classified. 

(2) Search of vessel by foreign authorities . 
Commanders and masters will not permit foreign 


authorities to search any portion of a Navy ship. See 
U.S. Navy Regulations, 1990 . Article 0828. 

(3) Protection of persons and property at sea. 
See NWP -1-14M/MCWP 5-2.1 , chapter 3. 

(4) Quarantine rules _in_ foreign _ ports _and 

airports . Commanders and masters will comply with 
foreign quarantine regulations and may certify such 
compliance to foreign authorities. Commanders will 
not allow foreign authorities to conduct on-board 
inspections. See SECNAVINST 6210.2A. 

(5) Sovereign immunity. See NWP 1- 
14M/MCWP5-2.1, chapter 2. 

(6) Pollution and environmental concerns. See 

U.S. Navy Regulations, _ 1990 . Article 1163, and 

OPNAVINST 5090.IB CH-3 17 Oct 2002. See also 
section 1006, below. 

(7) U.S.-USSR incidents at sea. See 
OPNAVINST C5711.94; NWP 1-14M/MCWP5-2.1, 
section 2.8. 

(8) Humanitarian and civic assistance. See 10 
U.S.C. §§ 401, 2547, and 2805(a)(2), and Annual 
DOD Authorization and Appropriation Acts. See also; 
DoD Directive 3025.15, Military Assistance to Civil 
Authorities; DoD Directive 3025.12, Military 
Assistance for Civil Disturbances and DoD Directive 
5525.5, DoD Cooperation with Civilian Law 
Enforcement Officials. 

1003 INTERNATIONAL AGREEMENTS 

a. General . DODDIR 5530.3 of 11 June 1987 
lays out procedures for the negotiation and conclusion 
of international agreements. It provides for centralized 
control. No DOD member or civilian employee may 
conclude an international agreement except in 
accordance with this directive and JCS/service 
implementing directives. 


10-2 


b. International _ agreement _ defined . 


An 














international agreement is any oral or written 
agreement with a foreign government (including 
agencies, instrumentalities, or politieal subdivisions) or 
with an international organization that: 

(1) Is agreed to by persormel of any DOD 
component; 

(2) Signifies the intention of its parties to be 
bound; and 

(3) Is denominated as an international 
agreement or any other name connoting a similar legal 
consequence. 

(4) The following are not considered to be 
international agreements: 

(a) Contraets made under the Federal 
Acquisition Regulations (FAR); 

(b) Foreign Military Sales Credit Agree¬ 
ments; 

(c) Foreign Military Sales Letters of Offer 
and Aeeeptanee and Letters of Intent; 

(d) NATO Standardization Agreements 
(STANAGS). While most STANAGS are not 
international agreements, some STANAGS, 
particularly in the logisties area, are legally binding 
and considered agreements; 

(e) Real estate leases under 10 U.S.C. §§ 
2667 and 2675, and 22 U.S.C. § 2796; 

(f) Agreements solely to establish admin¬ 
istrative procedures; and 

(g) Acquisitions or orders pursuant to 
cross-servieing agreements made under the authority 
of Acquisition and Cross-Servicing Agreements with 
NATO and Other Allies (10 U.S.C. §§ 2341-2350). 

c. Negotiation of agreements . The United States 
concludes international agreements in many forms. 
Members of the U.S. Navy and Marine Corps may 
conclude these agreements only when specifieally 
authorized. For matters under the cognizance of the 
Department of the Navy, authorization to negotiate and 
conclude an international agreement should be sought 


from the Secretary of the Navy, the Assistant Seeretary 
of the Navy (Research, Development and Acquisition), 
the Chief of Naval Operations, the Chief of Naval 
Researeh, or the Cormnandant of the Marine Corps, as 
appropriate. For matters that concern operational 
command of joint forces, such authorization should be 
sought from the Chairman of the Joint Chiefs of Staff 
Negotiations toward the formation of any international 
agreement are not permitted pending reeeipt of sueh 
authorization. Once authorized to negotiate, the 
cognizant representative of the United States must not 
deviate significantly from the letter of the authoriza¬ 
tion. 

(1) Request for authority to negotiate . A 
request for authority to negotiate an international 
agreement must contain: 

(a) A draft text or outline of the proposed 
agreement (or an explanation why such a draft cannot 
be provided); 

(b) A legal memorandum reeiting the 
authority to carry out each obligation to be assumed by 
the United States and an explanation of other legal 
considerations; 

(e) A fiscal memorandum speeifying the 
estimated cost and appropriations authority or source 
of each obligation assumed by the Department of the 
Navy or other DOD component; and 

(d) A Technology Assessment Control Plan 
(see enelosure (7) to DODDIR 5530.3 of 18 February 
1991), whieh, inter alia, requires the proponent of the 
agreement to: 

(i) itemize all sensitive U.S. elassified 
and unelassified property and data to be transferred 
under the proposed agreement; 

(ii) assess the risk to U.S. national 
security through such transfer; and 

(iii) identify the foreign teehnologies or 
other benefits that the United States is likely to acquire 
through the proposed agreement. 

(2) Conclusion of the agreement . Should 
negotiations lead to an acceptable draft, the U.S. 
representative must ensure that: 


10-3 





(a) The proposed U.S. signatory holds 
proper authority to conclude the agreement. This 
authority is obtained in the same manner as the 
authority to negotiate. 

(b) The requirements of prior consultation 
with the Department of State in accordance with the 
Case-Zablocki Act, 1 U.S.C. § 112b, have been met 
for the particular agreement. The Judge Advocate 
General (Code 10) has historically performed this 
function because JAG has, on file, permission from the 
Department of State to conclude certain classes of 
agreements without prior consultation. 

(c) If a foreign language text is added, the 
agreement must specify either that the English text 
governs or that both texts are equally authentic. In the 
latter case, the agreement must include certification 
that the texts conform and have the same meaning in 
all substantive respects. Translators must be 
designated as qualified, consistent with local practice, 
by the official authorized to negotiate and conclude the 
agreement or by an appropriate official of the State 
Department. 

(3) Forwarding of agreement . Within 10 days 
of conclusion, the U.S. Navy or Marine Corps 
signatory must forward five certified copies of the 
agreement and a background statement to the Judge 
Advocate General. If an agreement is concluded 
pursuant to a delegation of authority from the 
Chairman, Joint Chiefs of Staff, the signatory must 
forward two certified copies of the agreement and a 
background statement to the General Counsel, 
Department of Defense, and one copy to the Office of 
the Secretary, Joint Chiefs of Staff (plus additional 
copies to others with an interest in the subject of the 
agreement). 

d. Additional guidance . See JCS MOPs 21 and 
43, CJCSI 2300.01A, SECNAVINST 5710.25, 
OPNAVINST 5710.24, OPNAVINST 5710.25, Case- 
Zablocki Act implementation (22 CFR Ch. 1, sub. S, 
Part 181), and DIA Regulation 60-28 (concerning 
intelligence agreements). Questions on international 
agreements may be directed to the Judge Advocate 
General. 

1004 SECURITY ASSISTANCE 


a. General . Security assistance enhances U.S. 
national security by providing defense articles, 
services, training, and other assistance by grant, credit, 
or cash sales to friendly foreign nations. Authority for 
these programs is found in the Foreign Assistance Act 
and the Anns Export Control Act. Basic guidance is 
found in the Security Assistance Management Manual, 
DOD 5105.38-M of 1 October 1988, the DOD Foreign 
Military Sales Financial Manual, DOD Directive 
7290.3-M, and the Joint Security Assistance Training 
(JSAT) Regulation (AR 12-15/SECNAVINST 
4950.4H/AFR 50-29). 

b. Statutory requirements . The more important 
statutory requirements regarding security assistance 
include: 

(1) Transfers of defense articles or services 
must be to an eligible country or designated 
international organization. 

(2) Defense articles or services must be properly 
utilized by the purchaser. This means, for example, 
that such articles or services must be used by the 
purchaser's defensive forces for defensive purposes 
only. 

(3) Withdrawal from U.S. stocks requires 
proper authorization. 

(4) A purchasing country must pay full value, 
including applicable costs and surcharges. 

(5) The purchaser must agree not to transfer 
defense articles received from the United States to any 
third country without U.S. permission. 

c. What constitutes security assistance . The DOD 
Dictionary of Military and Associated Terms (JCS Pub 
1-02 of 12 Apr 2001 ) defines "security assistance" as 
groups of programs authorized by the Foreign 
Assistance Act of 1961 as amended by the Arms 
Export Control Act of 1976, as amended, or other 
related statutes by which the United States provides 
defense articles, by grant, loan, credit, or cash sales in 
furtherance of national policies and objectives. 

(1) There is a fine line between reimbursable 
security assistance and the authorized extension of 
limited assistance as a goodwill gesture or international 
courtesy in connection with combined operations. 


10-4 







Cases are factually dependent and should, if 
practieable, be discussed with a Security Assistance 
Organization (SAO) at the local diplomatic mission or 
with an international lawyer with security assistance 
training. As a very general proposition, it is improper 
to extend any defense article or serviee (broadly 
defined) on a non-reimbursable basis unless there is: 

(1) a speeific statutory authorization for the provision 
of assistance, for example, 10 U.S.C. § 7227, 
authorizes the non-reimbursable provision of routine 
port and airport line services on conditions of 
reciprocity documented by written agreement; or (2) 
the assistance is being provided to advance a clear and 
immediate U.S. mission interest, for example, the non¬ 
reimbursable transport of members of a foreign armed 
foree aboard a U.S. vessel or aircraft to a remote site in 
eonnection with a combined exereise. 

(2) Even if a statutory or "mutual benefit" basis 
can be found for extending assistance, there are 
eountry-specifie limitations on the provision of 
assistanee derived from the Foreign Assistance Act, 
and annual authorization and appropriation acts, which 
negate an otherwise valid legal justifieation for 
providing assistance to a foreign government. 

(3) The foregoing discussion applies to the 
authority of U.S. forees to provide assistance to a 
foreign government. Similar restrictions prevent U.S. 
forces from accepting logistical or other support from a 
foreign government beeause of the fiscal prohibition 
against unauthorized augmentation of appropriations. 
Various statutes authorize the acceptance of certain 
types of assistance such as reciprocal routine port and 
airport services (10 U.S.C. § 7227), and financial or in- 
kind host nation support (10 U.S.C. § 2608, 10 U.S.C. 
§ 2350g); however, implementing guidance issued by 
DOD and the Navy should be consulted before any 
foreign assistance is accepted. 

d. Local requests . In case of doubt, cornmanding 
officers should refer foreign requests for training, 
purchase, lease or donation of equipment to the 
Security Assistance Officer (SAO) of the local U.S. 
diplomatic mission and up the chain of command. 

1005 POLITICAL ASYSLUM AND 
TEMPORARY REFUGE 

a. Political asylum . Political asylum is sanctuary 
within U.S. territorial jurisdiction or on the high seas 


granted to a foreign person. It affords protection from 
reasonable fear of persecution on account of race, 
religion, nationality, political opinion, or membership 
in a particular social group. 

(1) No person seeking political asyliun should 
be surrendered to foreign authorities except at the 
direction of the Secretary of the Navy. 

(2) Since political asylum is a matter under the 
cognizance of the State Department, any person 
requesting asylum should be advised to contact the 
nearest U.S. Embassy or Consulate; however, no 
person shall be expelled from any U.S. military 
installation or vessel if there is an imminent threat to 
safety. In such cases, persons seeking political asylum 
should be regarded as temporary refugees pending 
referral to higher authority. 

b. Temporary _ refuge . Temporary refuge is 

humanitarian protection to secure the safety of a 
person seeking refuge against imminent danger, such 
as pursuit by a mob. It does not normally include 
persons fleeing from lawful pursuit by the law 
enforcement authorities of a foreign country. 
Temporary refuge may be granted by the senior officer 
present at a U.S. installation or on board a U.S. vessel. 
Once granted, temporary refuge will be terminated 
only at the direction of the Secretary of the Navy. Per¬ 
sons whose temporary refuge is terminated will be 
surrendered only to authorities designated in the 
message authorizing release. 

c. Public announcement . No public statement 
concerning political asylum or temporary refuge cases 
should be released without authorization by the 
Assistant Secretary of Defense for Public Affairs. 
DODDIR 2000.11 of 3 March 1972 and 
SECNAVINST 5710.22B. In foreign territory, any 
such announcements should also be coordinated with 
the U.S. Embassy. 

d. Reporting requirements . Upon receipt of a 
request for political asylum or temporary refuge on 
board a U.S. installation or vessel, the information 
described below should be reported via OPREP-3 
PINNACLE procedures (chapter 2, section II, of 
OPNAVINST R3I00.6F; see also MCO 5740.2E). 
Initial reports should not be delayed pending further 
developments. 


10-5 








(1) Name and nationality of the person 
requesting asylum (or temporary refuge). 

(2) Date, place of birth, and occupation. 

(3) Description of any documentation in his 
possession. 

(4) List of foreign authorities who are aware of 
or will be notified of the request. 

(5) Circumstances surrounding the request. 

(6) Exact location. If aboard a vessel or 
aircraft, give the estimated time of arrival at next port 
or airport. 

(7) Reason for requesting asylum or temporary 

refuge. 

(8) Description of any criminal charges known 
or alleged to be pending against the person requesting 
asylum. Specifically indicate if any piracy af sea, air 
piracy, or hijacking is involved. 

(9) Any Communist Party or other political 
party affdiation. Also list any government office now 
held or previously occupied. 

(10) If applicable, whether a field office of the 
Immigration and Naturalization Service (INS) has been 
notified and if arrangements have been made to 
transfer the case to INS. 

(11) Any other pertinent information. 

e. Custody . Any request by foreign authorities for 
custody of a person seeking refuge should be reported 
immediately to higher authority. Pending guidance 
from higher authority, no action should be taken other 
than informing the foreign authorities that the case has 
been referred to higher authorities for instructions. 

f References . For additional information and 
detailed guidance, see DODDIR 2000.11 of 3 March 
1972 and SECNAVINST 5710.22. See also NWPl- 
14M/MCWP 5-2.1 , section 3.3. 

1006 FOREIGN ENVIRONMENTAL LAW 


a. Installations provided by the U.S. or operated 

by 

the U.S . At U.S. Navy operated facilities within 
foreign territory, the Navy facility will comply with 
Final Governing Standards (FGSs) as developed by the 
Environmental Executive Agent for each country. (See 
https ://www. denix. osd. mil/denix/DOD/Library/Intl/FG 
S/fmal-gov-stds-DOD.html.) Where FGSs have not 
been issued, shore activities will comply with the DoD 
Overseas Environmental Baseline Guidance Document 
(OEBGD) (DOD Publication 4715.5-G of 15 March 
2000), the host national substantive pollution control 
laws of general applicability (as required by EO 
12088), U.S. law with extraterritorial effect and 
applicable treaties (including Status of Forces 
Agreement (SOFA).. When capital improvements are 
required at overseas installations to comply with FGSs 
or OEGBD and EO 12088, as applicable, funding 
decisions should be based on a number of 
considerations including the pertinent SOFA. 

b. Installations provided by a foreign nation . Navy 
policy is that unless otherwise provided in the SOFA, 
the host nation is expected to fund environmental 
compliance projects at facilities provided by the host 
nation. In some cases, host country provided facilities 
have been significantly modified by the U.S. to meet 
operational requirements. When capital improvements 
are required in these cases to meet the environmental 
standards of general applicability in the host country or 
jurisdiction, the Navy may negotiate shared 
contributions for such improvements. This negotiation 
may be done only after consultation with the U.S. 
ambassador for that country. 

c. Vessels, aircraft, and transient units . Operations 
in areas subject to foreign jurisdiction will be 
governed by the environmental provisions contained 
in port visit clearances and/or in the SOFA or other 
international agreement with the host government. In 
the absence of guidance in the port visit clearances or 
applicable agreement. Navy ships should attempt to 
abide by the corresponding requirement for U.S. 
navigable waters or ports, as delineated in 
OPNAVISNT 5090.IB CH-3. In cases where 
compliance with corresponding U.S. requirements is 
not feasible overseas. Navy ships should operate in a 
manner consistent with environmental practices of 
host nation warships 

d. Requests for access by foreign authorities to 


10-6 









ensure _ applicable _ environmental _ compliance . 

Installation and regional commanders shall consult 
with the Environmental Executive Agent (EA) for the 
host nation, or with the combatant commander where 
no EA has been appointed, to pre-establish procedures 
for access by host nation officials. Procedures shall 
comply with the applicable SOFA and established 
practices implementing the SOFA. Installation 
commanders shall comply with access procedures so 
established. Where host nation officials request access 
in addition to those established through the combatant 
commander, the installation commander shall 
immediately notify the Navy component commander 
in theater, the environmental EA (if applicable) and 
CNO (N4). Unless otherwise directed, the installation 
commander may permit access after completing 
consultation with the environmental EA, component 
commander and CNO (N4) or three working days after 
providing notification, whichever is earlier. If access 
is denied, the installation commander shall notify the 
same parties and shall ensure that the Chief of Mission 
with the U.S. ambassador to country has also been 
notified. 

(1) Access by foreign officials to propulsion plant 
spaces of nuclear powered ships, or to naval nuclear 
propulsion infonnation is governed by OPNAVINST 
5510.155C, Classified Supplement to the Manual for 
Disclosure of Classified Military Infonnation to 
Foreign Governments and International Organizations 
(NOTAL), and is not authorized without approval by 
CNO (NOON). 

(2) Rules concerning U.S. vessels and aircraft are 

more restrictive: on-board inspections by foreign 
officials would be contrary to principles of sovereign 
immunity. See SECNAVINST 6210.2A 

OPNAVINST 5090.IB CH-3 and U.S. Navy 
Regulations, 1990, Article 0828. 

e. References . DODfNST 4715.5, Management of 
Environmental Compliance at Overseas Installations, 
22 April 1996. OPNAVINST 5090.1B CH-3 Chapters 
18 & 19 of 17 October 2002. 


1007 FOREIGN LITIGATION 

a. Department of .lustice . The Department of 
Justice has the primary responsibility for representing 
the United States in all foreign litigation. This requires 


timely notice to the Attorney General of legal actions 
arising out of overseas naval operations. The 
International Law Division of the Office of the Judge 
Advocate General maintains close liaison with the 
Department of Justice, Office of Foreign Litigation. 

b. Reports to the .Judge Advocate General . Any 
foreign legal proceedings, including those involving 
nonappropriated-fiind activities that arise out of U.S. 
naval operations overseas or are otherwise of 
substantial interest to the Department of the Navy 
should be reported to the Judge Advocate General by 
the most expeditious means, using message, telephone, 
or letter. This includes, but is not limited to, any 
proceeding involving the United States as a party and 
arising out of naval operations; proceedings against 
any person subject to military law or any Department 
of the Navy official or employee in connection with 
official duties; and proceedings where attachment of 
U.S. funds or other property is sought. The report 
should include as much of the following information as 
possible: 

(1) Names of parties to the proceeding. 

(2) Nature of the action. 

(3) Name of the tribunal where the proceedings 
have been brought. 

(4) Docket number. 

(5) Names and positions of persons served, 
method of service, and dates. 

(6) Explanation of U.S. Govemmenfs interest in 
the proceeding. 

(7) Deadline for pleadings or other response. 

(8) Nature of the principal defense, if known. 

(9) Status of any named party as a U.S. 
Government officer, employee, agent, contractor, 
nonappropriated-fund activity employee, etc. 

(10) Nature of relief sought. 

(11) A recommendation as to qualified local 
attorneys, English-speaking if possible, available for 
retention to defend the interests of the United States. 






Nonnally, the names of such attorneys should be from 
a list maintained by the U.S. Embassy or Consulate. 

(12) Any other information that would provide 
a full understanding of the case and enable the 
Government to prepare a defense. 

1008 IMMIGRATION AND 
NATURALIZATION 

Section 0712 of Chapter VII, Legal Assistance, 
provides guidance on immigration and naturalization. 

1009 STATUS OF FORCES 
AGREEMENTS 

a. General . Status of Forees Agreements (SOFA) 
govern the rights, obligations, and privileges of 
military personnel stationed in foreign countries. The 
NATO SOFA is generally used as a model. Although 
the wording of individual SOFA's varies, they are 
generally uniform in subject matter. Some of the more 
important provisions cover entry and exit from the host 
country, customs, respect for local law, taxation, 
criminal jurisdiction, and claims. Note: Not all U.S. 
military personnel in country are necessarily covered 
by the SOFA. For example, military personnel 
attached to a U.S. embassy are normally afforded 
diplomatic status. 

b. Foreign personnel in the United States . Most 
SOFA's govern only U.S. personnel stationed 
overseas. The NATO SOFA is reciproeal, in that it 
also eovers personnel from other NATO countries 
stationed in the United States. Foreign service 
personnel in the United States not protected by a 
SOFA are governed by applicable Federal law and 
regulations, State law, and working arrangements with 
the various States. Foreign service personnel serving 
in the United States are exempt from U.S. income tax 
of non-U.S. source ineome. They are also exempt 
from certain custom duties. 

1010 FOREIGN CRIMINAL 
JURISDICTION 

a. General . A sovereign nation has jurisdietion to 
punish offenses against its laws eommitted within its 
borders, but may waive its jurisdiction. Every SOFA 
ineludes provisions for the exereise of criminal 
jurisdiction. Other agreements (e.g., for personnel 
exchanges, professional military exchanges, and unit 


exchanges) may also contain criminal jurisdictional 
provisions. DOD and DON policies regarding status 
of forees and foreign criminal jurisdiction are set out in 
DODDIR 5525.1 of 2 July 1997 and SECNAVINST 
5820.4 (series). 

b. Policy . It is DOD policy to maximize the 
exercise of U.S. jurisdiction and minimize the exercise 
of foreign eriminal jurisdiction to the extent 
permissible under the applicable SOFA. 

c. Exercise of jurisdiction . While international 
law generally recognizes the authority of the host state 
over all persons in its territory, the sending state also 
has a legitimate need to maintain good order and 
discipline among the members of its forces. Host 
states have no direct interest in many offenses, sueh as 
those committed on base or where both the victim and 
offender are members of the U.S. force. To balanee 
the relative interests of the host and sending states, 
most SOFA's provide for each state to have exclusive 
jurisdiction over certain classes of offenses and for 
them to share eoncurrent jurisdiction over others. In 
case of concurrent jurisdiction, the SOFA provides for 
primary and secondary rights to exercise that 
jurisdietion, depending upon such factors as the type of 
offense, whether the offense arose in the performance 
of official duty, and whether the vietim was a fellow 
member or dependent of the sending state's forees. 

d. Waiver of jurisdiction . SOFA's generally 
inelude a procedure where one state may waive its 
right to exercise concurrent jurisdietion if so requested 
by the other state. In some agreements, this waiver has 
been institutionalized so that the host state essentially 
agrees in advance to a blanket waiver, with the right to 
"recall" its waiver if a specific offense is of "particular 
importance." 

e. Custody . Whenever U.S. military personnel or 
members of the civilian component or their dependents 
are apprehended by foreign authorities on criminal 
charges, every effort should be made to seeure their 
release to U.S. custody pending final resolution of 
judicial proceedings. 

(1) Requests by foreign authorities for delivery 
of eustody of such personnel should be handled in 
striet compliance with the applieable SOFA. If there is 
no SOFA, U.S. personnel should not be delivered to 
foreign authorities pending guidanee from the Judge 
Advocate General. 


10-8 









(2) Personnel in foreign eustody, whether prior 
to or after trial, must be visited on a regular basis in 
accordance with SECNAVINST 1640.9B (Corrections 
Manual) and chapter 3 of SECNAVINST 5820.4G. 
Particular attention should be given to legal assistanee, 
medical care, adequacy of food and clothing, health 
and eomfort, and accountability for personal property. 
See MILPERSMAN 1160-050 or MCO P1900.16D, 
paragraph 1006.2i, regarding proeessing of personnel 
confined in foreign jails for administrative discharge. 
Such personnel will not be separated until eompletion 
of sentenee and return to the United States. 
SECNAVINST 5820.4G, paragraph 3-8. 

f Fees . Under U.S. law, counsel fees, court costs, 
bail, and other expenses associated with the exercise of 
foreign criminal jurisdiction over members and 
members of the civilian component, and their 
dependents, may be paid by the U.S. Government. 
Use of U.S. Government funds to pay fines is not 
authorized. See ehapter 2 of SECNAVINST 5820.4 
(series). 

g. Solatia . In certain eountries, it is customary to 
offer a victim or his family a token gift of fruit, 
flowers, or money for injury, death, or property 
damage. Depending on the local culture, sueh token 
expressions of remorse ean affeet the resolution of 
criminal charges. NAVCOMP MANUAL 075146 
permits the payment of solatia from operation and 
maintenance funds under eertain cireumstances, as 
determined by the appropriate country commander. 
Consult the area coordinator or the nearest naval legal 
serviee offiee to determine the propriety of paying 
solatia from official funds in a particular country. 

h. Official duty. Under every SOFA, offenses 
committed in the performance of official duty are 
subject to the primary jurisdietion of the United States 
rather than the host nation. Such cases should be 
handled in strict compliance with the applicable 
SOFA. 

i. Reporting requirements . The exereise of 
foreign criminal jurisdiction creates a number of 
reporting requirements. The most important for the 
operational unit is the serious incident report described 
in section X or XI of OPNAVINST 3100.6G. See also 
MCO 5740.2E, chapter 4 of SECNAVINST 5820.4G, 
and regulations issued by the cognizant area 
coordinator. 


j. Military Extraterritorial Jurisdiction Act of 
2000 (MEJA). MEJA has expanded the criminal 
jurisdiction of the United States to civilians 
accompanying U.S. forces overseas. The availability 
of eriminal sanetions for conduct overseas may assist 
in obtaining waiver of host nation jurisdiction over 
offenses committed by eivilians. See 18 U.S.C. § 
3261. See also the DOD implementing instmction, 
found at 32 C.F.R. § 153 or DODI 5525 (series). 

1011 ENFORCEMENT OF U.S. LAW 
OVERSEAS 

Routine exercise of U.S. jurisdiction over DOD 
personnel in eountries where U.S. personnel are 
stationed is provided for in the status of forces 
provisions of agreements with the host government 
and the Uniform Code of Military Justice. Generally, 
assistance by DOD personnel to U.S. civilian law 
enforcement ageneies is provided pursuant to 
DODDIR 5525.5 of 15 January 1986. Outside U.S. 
jurisdietion, military actions conducted in direct 
assistance to U.S. civilian law enforcement agencies 
require the approval of the Secretary of Defense or the 
Deputy Secretary of Defense who will eonsider, on a 
case-by-ease basis, requests for exceptions to the 
policy restrictions against direct assistance by military 
personnel. Sueh requests should be sent through the 
Secretary of the Navy via the Judge Advocate General. 

1012 PROPERTY CAPTURED FROM THE 
ENEMY DURING ARMED CONFLICT 

Title to captured enemy publie property passes from 
the government of the enemy. Under U.S. law, it 
beeomes the property of the U.S. Government. 
Individuals, whether enemy or friendly, acquire only 
such private rights in captured enemy publie property 
as the laws of the United States provide. See 
OPNAVINST 3460.7A and MCO 5800.6A. See also 
Artiele 103, UCMJ, 10 U.S.C § 903. 

1013 NONCOMBATANT EVACUATION 
OPERATIONS (NEO) 

The Seeretary of State is responsible for the safe and 
efficient evaeuation of U.S. Government personnel, 
their dependents, and private U.S. eitizens from 
foreign territory when their lives are endangered by 
war, eivil unrest, or natural disaster. The Secretaries of 


10-9 





State and Defense are assigned lead and support 
responsibilities, respeetively. Combatant commanders 
are prepared to support Department of State to eonduct 
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 
eompilation), 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 
aeceptanee 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 


10-10 


CHAPTER XI 

CUSTOMS REQUIREMENTS - DOMESTIC AND FOREIGN 


HOI SCOPE 

1102 ENTRY REQUIREMENTS 

1103 PRE-CLEARANCE 


11-1 


CHAPTER XI 


CUSTOMS REQUIREMENTS - DOMESTIC AND FOREIGN 


1101 SCOPE 

This chapter provides information on provisions of 
United States customs laws and regulations commonly 
encountered by naval personnel, as well as basic 
information on the international law of customs. U.S. 
Customs regulations are found in title 19, United States 
Code , and title 19 of the Code of Federal Regulations . 
It is DOD poliey to eomply with U.S. export laws, 
whieh are generally outlined in titles 15 and 22, Code 
of Federal Regulations . The Deputy Underseeretary of 
Defense for Acquisition, Technology, and Logistics, 
exercises all staff supervision over Customs and 
Border Clearanee matters within DOD. 
USTRANSCOM is responsible for developing polieies 
and procedural guidance. The military eustoms 
inspection program is governed by the transportation 
regulations in DOD Regulation 4500.9-R, part V, of 
Mareh 2003. Customs responsibilities of vessel and 
aircraft commanders are also addressed in Article 0860 
of the U.S. Navy Regulations . 1990, and paragraph 
510.14 of OPNAVINST 3120.32B. 

Customs regulations change frequently. 
Recommended sourees of information for the DOD 
Customs and Border Crossing Program include: 

• The DOD Customs Program Web Page at 
https://business.transcom.mil/applications/custo 
ms/dodcustoms.cfm. 

• Country-specific requirements can be accessed 
through DOD 4500.54G, The DOD Foreign 

Clearance _ Guide . available at: 

http://www.fcg.pentagon.mil. 

• Personal Property and Consignment 
Instructions can be accessed at: 
http://www.mtme.army.mil. 

1102 ENTRY REQUIREMENTS 

a. General . All ships, aircraft, and other modes of 
transport entering the Continental United States 
(CONUS) from a foreign port or plaee will be subject 
to a complete customs inspection upon arrival at the 
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 


operations. Personnel, accompanied baggage, personal 
property, and cargo and the associated documentation 
are also subjeet to inspection. The vessel or aircraft 
commander is responsible for providing border 
elearanee doeumentation, and will not: 

• Interfere with the performance of duties of the 

USCS, USDA, INS, or CBCA/Military 
Customs Inspection - Excepted (MCI-E) 
personnel. 

• Permit any cargo, baggage, or equipment to be 

removed from any vessel or aircraft without 
permission from the designated border 
clearanee official. 

• Allow any passenger or crewmember to depart 

from a vessel or aireraft prior to completion of 
arrangements for final border clearance 
processing. 

b. Prohibited _and_ Restricted _ Items . Specific 

guidance and the required eustoms forms, addressing 
restricted and prohibited articles, agricultural products, 
fireanns, war trophies, and implements of war ean be 
found in chapter V of DOD 4500.9-R. 

1103 PRE-CLEARANCE 

The USCS will support pre-clearance for major 
unit redeployments in conjunetion with training 
exercises and contingeneies. Theater and component 
eommanders must ensure that that there are adequate 
facilities available for pre-clearance operations and 
ensure that the Navy identifies military law 
enforcement personnel to be trained as CBCAs. The 
training of CBCAs will be provided and approved by 
USCS and the USDA. CBCAs will inspect crews, 
troops, baggage, equipment, and documents when the 
destination is in CONUS. Though the Military 
Customs Inspeetion Program is no longer reeognized 
by the USCS, an MCI-E program can be established 
through a memorandum of understanding negotiated 
between the base commander and the local USCS Port 
Director. 


11-2 










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 

PARTS 

; - 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 

1. 

Groundings 



m. 

Significant maritime incidents 



1204 

INITIAL REPORT OF 




ADMIRALTY INCIDENT 



a. 

Means of report 



b. 

Initial report 



c. 

Notice 




12-1 


1209 DOCUMENTING COLLISION 
DAMAGE AND REPAIR COSTS 

a. Elements of naval damages 

b. Collision repairs 

c. Repair costs 

d. Noncollision work 

e. Commercial shipyard repairs 

f. Detention costs 

g. Prompt repairs 

1210 PERSONAL INJURY CASES 

a. Generally 

b. Types of victims 

c. Considerations in any investigation 

d. Shoreworker injuries 

e. General visiting and ship tours 

f Civilian Federal employees 

1211 CORRESPONDENCE WITH 
PRIVATE PARTIES 

a. Forward to JAG 

b. Naval personnel 

c. Admissions of liability 

PART C -ADMIRALTY CLAIMS AGAINST 
THE DEPARTMENT OF THE 
NAVY 

1212 NAVAL LIABILITY 


1214 STATUTE OF LIMITATIONS 

a. Suits under the Suits in Admiralty Act 
or the Public Vessels Act 

b. Admiralty claims 

1215 ADMINISTRATION OF 
ADMIRALTY CLAIMS 

a. Generally 

b. Assistance to claimants 

1216 ADJUDICATING ADMIRALTY 
CASES AS FOREIGN CLAIMS 

a. Foreign Claims Act 

b. Copy to JAG 

PART D - AFFIRMATIVE 

ADMIRALTY CLAIMS 

1217 AUTHORITY FOR AFFIRMATIVE 
CLAIMS SETTLEMENT 

a. Generally 

b. SECNAV authority 

c. Settlement authority 

d. Delegation 

e. Compromise and settlement 

1218 STATUTE OF LIMITATIONS FOR 
AFFIRMATIVE CLAIMS 


a. Waiver of immunity 

b. Suits in Admiralty Act 

c. Public Vessels Act 

d. Admiralty Jurisdiction 
Extension Act 

1213 AUTHORITY FOR CLAIMS 
SETTLEMENT 

a. SECNAV authority 

b. Delegation 

c. Settlement 


1219 AFFIRMATIVE CLAIMS 
ADMINISTRATION 

PART E - MISCELLANEOUS 

1220 SALVAGE 

a. Claims 

b. Salvor 

c. Suits for compensation 

d. Administrative settlement 

e. Offset 

f Finder's reward 


12-2 


1221 TOWAGE AND PILOTAGE 

a. Generally 

b. Liability 

1222 INTRAGOVERNMENT 
ADMIRALTY INCIDENTS 

a. Waiver doctrine 

b. Report of incident 

1223 EOREIGN 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 SAEETY 
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 


12-3 


CHAPTER XII 


ADMIRALTY CLAIMS 
PART A-INTRODUCTION 


1201 SCOPE 

a. General application . This chapter applies to 
admiralty tort claims, including claims against the United 
States for death, personal injury, or property damage 
caused by a naval vessel or other property under the 
jurisdiction of the Department of the Navy, or resulting 
from a maritime tort committed by any agent or employee 
of the Department of the Navy, and affirmative claims by 
the United States for damage to naval property caused by 
another's vessel or maritime tort. Also, this chapter briefly 
discusses salvage claims by or against the United States 
and claims by the Government for towage services 
rendered to privately owned vessels. This chapter does 
not apply to admiralty incidents involving only U.S. 
Government vessels or property. See section 1