§ 105.4 - Policy.

§ 105.4 Policy.

It is DoD policy, in accordance with 32 CFR part 103, that:

(a) This part and 32 CFR part 103 establish and implement the DoD SAPR program. Unrestricted and Restricted Reporting Options are available to Service members and their adult military dependents in accordance with this part.

(b) The DoD goal is a culture free of sexual assault, through an environment of prevention, education and training, response capability (see § 105.3), victim support, reporting procedures, and appropriate accountability that enhances the safety and well-being of all persons covered by this part and 32 CFR part 103.

(1) While a sexual assault victim may disclose information to whomever he or she chooses, an official report is made only when a DD Form 2910 is signed and filed with a SARC or SAPR VA, or when a Military Criminal Investigative Organization (MCIO) investigator initiates an investigation.

(2) For Restricted and Unrestricted Reporting purposes, a report can be made to healthcare personnel, but healthcare personnel then immediately contact the SARC or SAPR VA to fill out the DD Form 2910. Chaplains and military attorneys cannot take official reports.

(3) Unless a DD Form 2910 is filed with a SARC, a report to a Chaplain or military attorney may not result in the rendering of SAPR services or investigative action because of the privileges associated with speaking to these individuals. A Chaplain or military attorney should advise the victim to consult with a SARC to understand the full scope of services available or facilitate, with the victim's consent, contact with a SARC.

(c) The SAPR Program shall:

(1) Focus on the victim and on doing what is necessary and appropriate to support victim recovery, and also, if a Service member, to support that Service member to be fully mission capable and engaged.

(2) Require that medical care and SAPR services are gender-responsive, culturally-competent, and recovery-oriented as defined in 32 CFR 103.3.

(3) Not provide policy for legal processes within the responsibility of the Judge Advocates General (JAG) of the Military Departments provided in sections 801-946 of Title 10, United States Code, also known and referred to in this part as the Uniform Code of Military Justice (UCMJ), the Manual for Courts-Martial, or for criminal investigative matters assigned to the IG, DoD.

(d) Command sexual assault awareness and prevention programs and DoD law enforcement (see § 105.3) and criminal justice procedures that enable persons to be held appropriately accountable for their actions shall be supported by all commanders.

(e) Standardized SAPR requirements, terminology, guidelines, protocols, and guidelines for training materials shall focus on awareness, prevention, and response at all levels, as appropriate.

(f) SARC and SAPR VA shall be used as standard terms as defined in and in accordance with 32 CFR part 103 throughout the Military Departments to facilitate communications and transparency regarding SAPR response capability.

(g) The SARC shall serve as the single point of contact for coordinating care to ensure that sexual assault victims receive appropriate and responsive care. All SARCs shall be authorized to perform VA duties in accordance with service regulations, and will be acting in the performance of those duties.

(h) All SARCs shall have direct and unimpeded contact and access to the installation commander (see § 105.3) and the immediate commander of the Service member victim and alleged Service member offender for the purpose of this part and 32 CFR part 103. The installation commander will have direct contact with the SARC(s) and this responsibility is not further delegable.

(1) If an installation has multiple SARCs on the installation, a Lead SARC shall be designated by the Service.

(2) For SARCs that operate within deployable commands that are not attached to an installation, they shall have access to the senior commander for the deployable command.

(i) A 24 hour, 7 day per week sexual assault response capability for all locations, including deployed areas, shall be established for persons covered in this part. An immediate, trained sexual assault response capability shall be available for each report of sexual assault in all locations, including in deployed locations.

(j) SARCs, SAPR VAs, and other responders (see § 105.3) will assist sexual assault victims regardless of Service affiliation.

(k) Service member and adult military dependent victims of sexual assault shall receive timely access to comprehensive medical and psychological treatment, including emergency care treatment and services, as described in this part and 32 CFR part 103.

(l) Sexual assault victims shall be given priority, and treated as emergency cases. Emergency care (see § 105.3) shall consist of emergency medical care and the offer of a SAFE. The victim shall be advised that even if a SAFE is declined the victim shall be encouraged (but not mandated) to receive medical care, psychological care, and victim advocacy.

(m) DoD prohibits granting a waiver for commissioning or enlistment in the Military Services when the person has a qualifying conviction (see § 105.3) for a crime of sexual assault or is required to be registered as a sex offender.

(n) There will be a safety assessment capability for the purposes of ensuring the victim, and possibly other persons, are not in physical jeopardy. A safety assessment will be available to all Service members, adult military dependents, and civilians who are eligible for SAPR services, even if the victim is not physically located on the installation. The installation commander or the deputy installation commander will identify installation personnel who have been trained and are able to perform a safety assessment of each sexual assault victim, regardless of whether he or she filed a Restricted or Unrestricted Report. Individuals tasked to conduct safety assessments must occupy positions that do not compromise the victim's reporting options. The safety assessment will be conducted as soon as possible, understanding that any delay may impact the safety of the victim.

(1) For Unrestricted Reports, if a victim is assessed to be in a high-risk situation, the assessor will immediately contact the installation commander or his or her deputy, who will immediately stand up a multi-disciplinary High-Risk Response Team in accordance with the guidance in § 105.13. This will be done even if the victim is not physically located on the installation.

(2) For Restricted Reports, if the victim is assessed to be in a high-risk situation, it may qualify as an exception to Restricted Reporting, which is necessary to prevent or mitigate a serious and imminent threat to the health or safety of the victim or another person. The SARC will be immediately notified. The SARC will disclose the otherwise-protected confidential information only after consultation with the staff judge advocate (SJA) of the installation commander, supporting judge advocate, or other legal advisor concerned, who will advise the SARC as to whether an exception to Restricted Reporting applies, and whether disclosure of personally identifiable information (PII) to a military, other Federal, State or local law enforcement agency is necessary to prevent or mitigate an imminent and serious threat to the health and safety of the victim or another person, in accordance with the guidance in § 105.8. If the SJA determines that the victim is not in a high-risk situation or no serious and imminent threat to the health and safety of the victim or another person exists, then the report will remain Restricted. The SARC will ensure a safety assessment is conducted.

(o) Service members who file an Unrestricted Report of sexual assault shall be informed by the SARC or SAPR VA at the time of making the report, or as soon as practicable, of the option to request an Expedited Transfer, in accordance with the procedures for commanders in § 105.9. A Service member may request:

(1) A temporary or permanent Expedited Transfer from their assigned command or installation to a different command or installation; or

(2) A temporary or permanent Expedited Transfer to a different location within their assigned command or installation.

(p) An enlisted Service member or a commissioned officer who made an Unrestricted Report of sexual assault and is recommended for involuntary separation from the Military Services within 1 year of final disposition of his or her sexual assault case may request a general or flag officer (G/FO) review of the circumstances of and grounds for the involuntary separation in accordance with DoDI 1332.14 and DoDI 1332.30.

(1) A Service member requesting this review must submit his or her written request to the first G/FO in the separation authority's chain of command before the separation authority approves the member's final separation action.

(2) Requests submitted after final separation action is complete will not be reviewed by a G/FO, but the separated Service member may apply to the appropriate Service Discharge Review Board or Board of Correction of Military/Naval Records of their respective Service for consideration.

(3) A Service member who submits a timely request will not be separated until the G/FO conducting the review concurs with the circumstances of and the grounds for the involuntary separation.

(q) DoD prohibits granting a waiver for commissioning or enlistment in the Military Services when the person has a qualifying conviction (see § 105.3) for a crime of sexual assault, or a conviction for an attempt of a sexual assault crime, or has ever been required to be registered as a sex offender, in accordance with section 657 of Title 10, Unites States Code.

(r) A Service member whose conviction of rape, sexual assault, forcible sodomy, or an attempt to commit one of the offenses is final, and who is not punitively discharged in connection with such convictions, will be processed for administrative separation for misconduct in accordance with DoDI 1332.14 and DoDI 1332.30.

(s) Information regarding Restricted Reports should only be released to persons authorized to accept Restricted Reports or as authorized by law or DoD regulation. Improper disclosure of confidential communications under Restricted Reporting or improper release of medical information are prohibited and may result in disciplinary action pursuant to the UCMJ or other adverse personnel or administrative actions.

(t) Information regarding Unrestricted Reports should only be released to personnel with an official need to know, or as authorized by law. Improper disclosure of confidential communications under Unrestricted Reporting or improper release of medical information are prohibited and may result in disciplinary action pursuant to the UCMJ or other adverse personnel or administrative actions.

(u) The DoD will retain the DD Forms 2910, “Victim Reporting Preference Statement,” and 2911, “DoD Sexual Assault Forensic Examination (SAFE) Report,” for 50 years, regardless of whether the Service member filed a Restricted or Unrestricted Report as defined in 32 CFR part 103. PII will be protected in accordance with sections 552a of Title 5, United States Code, also known as the Privacy Act of 1974 and 32 CFR part 310 and Public Law 104-191.

(1) Document retention and SAFE Kit retention for unrestricted reports.

(i) The SARC will enter the Unrestricted Report DD Form 2910, in DSAID (see 32 CFR 103.3) as an electronic record within 48 hours of the report, where it will be retained for 50 years from the date the victim signed the DD Form 2910. The DD Form 2910 is located at the DoD Forms Management Program Web site at http://www.dtic.mil/whs/directives/infomgt/forms/index.htm.

(ii) The DD Form 2911 shall be retained in accordance with DoDI 5505.18. The DD Form 2911 is located at the DoD Forms Management Program Web site at http://www.dtic.mil/whs/directives//forms/index.htm.

(iii) If the victim had a SAFE, the SAFE Kit will be retained for 5 years in accordance with DoDI 5505.18 and in accordance with section 586 of the NDAA for FY 2012 (Public Law 112-81) as amended by section 538 of the NDAA for FY 2015 (Public Law 113-291). When the forensic examination is conducted at a civilian facility through a memorandum of understanding (MOU) or a memorandum of agreement (MOA) with the DoD, the requirement for the handling of the forensic kit will be explicitly addressed in the MOU or MOA. The MOU or MOA with the civilian facility will address the processes for contacting the SARC and for contacting the appropriate DoD agency responsible for accepting custody of the SAFE.

(iv) Personal property retained as evidence collected in association with a sexual assault investigation will be retained for a period of 5 years. Personal property may be returned to the rightful owner of such property after the conclusion of all legal, adverse action and administrative proceedings related to such incidents in accordance with section 586 of the NDAA for FY 2012 (Public Law 112-81), as amended by section 538 of the NDAA for FY 2015 (Public Law 113-291) and DoD regulations.

(2) Document retention and SAFE Kit retention for restricted reports.

(i) The SARC will retain a copy of the Restricted Report DD Form 2910 for 50 years, consistent with DoD guidance for the storage of PII. The 50-year time frame for the DD Form 2910 will start from the date the victim signs the DD Form 2910. For Restricted Reports, forms will be retained in a manner that protects confidentiality.

(ii) If the victim had a SAFE, the Restricted Report DD Form 2911 will be retained for 50 years, consistent with DoD guidance for the storage of PII. The 50-year time frame for the DD Form 2911 will start from the date the victim signs the DD Form 2910, but if there is no DD Form 2910, the timeframe will start from the date the SAFE Kit is completed. Restricted Report forms will be retained in a manner that protects confidentiality.

(iii) If the victim had a SAFE, the SAFE Kit will be retained for 5 years in a location designated by the Military Service concerned. When the forensic examination is conducted at a civilian facility through an MOU or an MOA with the DoD, the requirement for the handling of the forensic kit will be explicitly addressed in the MOU or MOA. The MOU or MOA with the civilian facility will address the processes for contacting the SARC and for contacting the appropriate DoD agency responsible for accepting custody of the forensic kit. The 5-year time frame will start from the date the victim signs the DD Form 2910, but if there is no DD Form 2910, the timeframe will start from the date the SAFE Kit is completed.

(iv) Personal property retained as evidence collected in association with a sexual assault investigation will be retained for a period of 5 years. In the event the report is converted to Unrestricted or an independent investigation is conducted, personal property may be returned to the rightful owner of such property after the conclusion of all legal, adverse action and administrative proceedings related to such incidents in accordance with section 586 of the NDAA for FY 2012 (Public Law 112-81), as amended by section 538 of the NDAA for FY 2015 (Public Law 113-291), and DoD regulations.

(v) Current or former Service members who made a report of sexual assault may contact their respective Service SAPR headquarters office or Service or NG SARCs for help accessing their DD Forms 2910 and 2911. Requests for release of information relating to sexual assaults will be processed by the organization concerned, in accordance with the procedures specified in the sections 552 and 552a of Title 5, United States Code also known as “The Freedom of Information Act” and “The Privacy Act of 1974” respectively.

(w) Service members who file Unrestricted and Restricted Reports of sexual assault and/or their dependents shall be protected from retaliation, reprisal, ostracism, maltreatment, or threats thereof, for filing a report.

(x) An incident report must be submitted in writing within 8 days after an Unrestricted Report of sexual assault has been made in accordance with section 1743 of the NDAA for FY 2014 (Public Law 113-66). This 8-day incident report will only be provided to personnel with an official need to know.

(y) At the time of reporting, victims must be informed of the availability of legal assistance and the right to consult with a Special Victims' Counsel or Victims' Legal Counsel (SVC/VLC) in accordance with section 1044e of Title 10, United States Code.

(z) Consistent with the Presidential Memorandum, “Implementing the Prison Rape Elimination Act,” sexual assaults in DoD confinement facilities involving Service members will be governed by 28 CFR part 115.

[81 FR 66430, Sept. 27, 2016]