§ 105.9 - Commander and management SAPR procedures.

§ 105.9 Commander and management SAPR procedures.

(a) SAPR management. Commanders, supervisors, and managers at all levels are responsible for the effective implementation of the SAPR program and policy. Military and DoD civilian officials at each management level shall advocate a strong SAPR program, and provide education and training that shall enable them to prevent and appropriately respond to incidents of sexual assault.

(b) Installation commander SAPR response procedures. Each installation commander shall:

(1) Develop guidelines to establish a 24 hour, 7 day per week sexual assault response capability for their locations, including deployed areas. For SARCs that operate within deployable commands that are not attached to an installation, senior commanders of the deployable commands shall ensure that equivalent SAPR standards are met. All SARCs will have direct and unimpeded contact and access to the installation commander (see § 105.3), and the immediate commander of both the Service member victim and alleged Service member offender. The installation commander will have direct contact with the SARC; this responsibility will not be delegated.

(2) Require all supervisors, officer and enlisted, down to the most junior supervisor, to receive specialized training that explains:

(i) That all personnel in the victim's chain of command, officer and enlisted, are required when they become aware of allegations of retaliation, reprisal, ostracism, or maltreatment to take appropriate measures to protect the victim.

(ii) What constitutes retaliation, reprisal, ostracism, and maltreatment in accordance with AD 2014-20/AFI-36-2909/SECNAVINST 53.7D, and Military Whistleblower Protections and procedures for reporting allegations of reprisal in accordance with DoDD 7050.06.

(iii) The resources available for victims (listed in § 105.8) to report instances of retaliation, reprisal, ostracism, maltreatment, or sexual harassment or to request a transfer or MPO.

(iv) That victims who reported a sexual assault or sought mental health treatment for sexual assault have the opportunity to discuss issues related to their military career with the G/FO that the victim believes are associated with the sexual assault.

(3) Ensure that 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.

(i) 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.

(ii) The safety assessment will be conducted as soon as possible.

(c) Commander SAPR response procedures. Each commander shall:

(1) Respond appropriately to incidents of sexual assault. Use the “Commander's 30-Day Checklist for Unrestricted Reports” to facilitate the response to the victim and an alleged offender, and an appropriate response for a sexual assault within a unit. The “Commander's 30-Day Checklist for Unrestricted Reports” is located in the SAPR Policy Toolkit, on www.sapr.mil. This 30-Day checklist maybe expanded by the Military Services to meet Service-specific requirements and procedures.

(2) Meet with the SARC within 30 days of taking command for one-on-one SAPR training. The training shall include a trends brief for unit and area of responsibility, the confidentiality and “official need to know” requirements for both Unrestricted and Restricted Reporting, the requirements of 8-day incident report in accordance with section 1743 of Public Law 113-66. The Sexual Assault Incident Response Oversight Report template is located in the SAPR Policy Toolkit, on www.sapr.mil. The commander must contact the judge advocate for training on the MRE 514 privilege.

(3) Require the SARC to:

(i) Be notified of every incident of sexual assault involving Service members or persons covered in this part, in or outside of the military installation when reported to DoD personnel. When notified, the SARC or SAPR VA shall respond to offer the victim SAPR services. All SARCs shall be authorized to perform VA duties in accordance with service regulations, and will be acting in the performance of those duties.

(A) In Restricted Reports, the SARC shall be notified by the healthcare personnel in accordance with § 105.11 or the SAPR VA.

(B) In Unrestricted Reports, the SARC shall be notified by the DoD responders or healthcare personnel.

(ii) Provide the victim's installation commander and immediate commander the information regarding an Unrestricted Report within 24 hours of an Unrestricted Report of sexual assault.

(iii) If the victim is a civilian and the alleged offender is a Service member, the immediate commander of that Service member shall be provided relevant information, to include any SAPR services made available to the civilian. The MCIO provides the commander of the alleged offender with information, to the extent available, regarding the victim, and SAPR services offered, if any, to file the 8-day incident report in accordance with section 1743 of Public Law 113-66.

(iv) Provide the installation commander with non-PII, as defined in § 105.3, within 24 hours of a Restricted Report of sexual assault. This notification may be extended to 48 hours after the report of the incident if there are extenuating circumstances in the deployed environment. Command and installation demographics shall be taken into account when determining the information to be provided. To ensure oversight of victim services for Restricted Report cases, the SARC will confirm in his or her report that the victim has been offered SAPR advocacy services; received explanation of the notifications in the DD Form 2910; offered medical and mental health care; and informed of eligibility for a Special Victim's Counsel or Victim's Legal Counsel. An 8-day incident report is not required for Restricted Reports in accordance with section 1743 of Public Law 113-66.

(v) Be supervised and evaluated by the installation commander or deputy installation commander in the performance of SAPR procedures in accordance with § 105.10.

(vi) Receive SARC training to follow procedures in accordance with § 105.10. Upon implementation of the D-SAACP, standardized criteria for the selection and training of SARCs and SAPR VAs shall include the application criteria in DD Form 2950 and comply with specific Military Service guidelines and certification requirements.

(vii) Follow established procedures to store the DD Form 2910 pursuant to Military Service regulations regarding the storage of documents with PII. Follow established procedures to store the original DD Form 2910 and ensure that all Federal and Service privacy regulations are adhered to.

(4) Evaluate healthcare personnel pursuant to Military Service regulation in the performance of SAPR procedures as described in § 105.11.

(5) Require adequate supplies of SAFE Kits be maintained by the active component. The supplies shall be routinely evaluated to guarantee adequate numbers to meet the need of sexual assault victims.

(6) Require DoD law enforcement and healthcare personnel to comply with prescribed chain of custody procedures described in their Military Service-specific MCIO procedures. Modified procedures applicable in cases of Restricted Reports of sexual assault are explained in § 105.12.

(7) Require that a CMG is conducted on a monthly basis in accordance with § 105.13.

(i) Chair or attend the CMG, in accordance with the requirements of § 105.13. Direct the required CMG members to attend.

(ii) Commanders shall provide victims of a sexual assault who filed an Unrestricted Reports monthly updates regarding the current status of any ongoing investigative, medical, legal, status of an Expedited Transfer request or any other request made by the victim, or command proceedings regarding the sexual assault until the final disposition (see § 105.3) of the reported assault, and to the extent permitted pursuant to DoDI 1030.2, Public Law 104-191,^[6] and section 552a of title 5, U.S.C. This is a non-delegable commander duty. This update must occur within 72 hours of the last CMG. Commanders of NG victims who were sexually assaulted when the victim was on title 10 orders and filed Unrestricted Reports are required to update, to the extent allowed by law and regulations, the victim's home State title 32 commander as to all or any ongoing investigative, medical, and legal proceedings and of any actions being taken by the active component against subjects who remain on title 10 orders.

(8) Ensure that resolution of Unrestricted Report sexual assault cases shall be expedited.

(i) A unit commander who receives an Unrestricted Report of a sexual assault shall immediately refer the matter to the appropriate MCIO, to include any offense identified by the UCMJ. A unit commander shall not conduct internal command directed investigations on sexual assault (i.e., no referrals to appointed command investigators or inquiry officers) or delay immediately contacting the MCIOs while attempting to assess the credibility of the report.

(ii) The final disposition of a sexual assault shall immediately be reported by the accused's commander to the assigned MCIO. Dispositions on cases referred by MCIOs to other DoD law enforcement agencies shall be immediately reported to the MCIOs upon their final disposition. When requested by MCIOs, commanders shall provide final disposition of sexual assault cases. Service legal officers are responsible for entering and approving the final case disposition input into DSAID and notifying the SARC of the disposition results.

(9) Appoint a point of contact to serve as a formal liaison between the installation SARC and the installation FAP staff (or civilian domestic resource if FAP is not available for a Reserve Component victim) to direct coordination when a sexual assault occurs within a domestic relationship or involves child abuse.

(10) Ensure appropriate training of all military responders be directed and documented in accordance with training standards in § 105.14. Direct and document appropriate training of all military responders who attend the CMG.

(11) Identify and maintain a liaison with civilian sexual assault victim resources. Where necessary, it is strongly recommended that an MOU or MOAs with the appropriate local authorities and civilian service organizations be established to maximize cooperation, reciprocal reporting of sexual assault information, and consultation regarding jurisdiction for the prosecution of Service members involved in sexual assault, as appropriate.

(12) In accordance with section 1565b(a)(2) of title 10 U.S.C., a Service member or a dependent who is the victim of sexual assault shall be informed of the availability of legal assistance and the services of a SARC and SAPR VA as soon as the member or dependent seeks assistance from a SARC, a SAPR VA, an MCIO, a victim or witness liaison, or a trial counsel. The member or dependent shall also be informed that the legal assistance and the services of a SARC or a SAPR VA are optional and may be declined, in whole or in part, at any time.

(13) Direct that DoD law enforcement not affiliated with an MCIO, when applicable, and VWAP personnel provide victims of sexual assault who elect an Unrestricted Report the information outlined in DoDD 1030.01^[7] and Public Law 100-504^[8] throughout the investigative and legal process. The completed DD Form 2701 shall be distributed to the victim in Unrestricted Reporting cases by DoD MCIO in accordance with DoDI 5505.18.

(14) Require that investigation descriptions found in § 105.17 be used to report case dispositions.

(15) Establish procedures to protect Service member victims and/or their dependents, SARCs, SAPR VAs, witnesses, healthcare providers, bystanders, and others associated with a report of sexual assault allegation from retaliation, reprisal, ostracism, and maltreatment.

(i) Protect victims of sexual assault from retaliation, ostracism, maltreatment, and reprisal in accordance with DoDD 7050.06 and AD 2014-20/AFI 36-2909/SECNAVINST 5370.7D. Require the SARC or SAPR VA to inform victims of the resources, listed in § 105.8, to report instances of retaliation, reprisal, ostracism, maltreatment, or sexual harassment or to request a transfer or MPO and/or CPO or to consult with an SVC/VLC.

(ii) Require SARCs and SAPR VAs to advise victims who reported a sexual assault or sought mental health treatment for sexual assault that they have the opportunity to discuss issues related to their military career with a G/FO that the victim believes are associated with the sexual assault.

(16) Require that sexual assault reports be entered into DSAID through interface with a MCIO case management systems, or by direct data entry by authorized personnel.

(17) Designate an official, usually the SARC, to generate an alpha-numeric Restricted Reporting case number (RRCN).

(18) Appoint a healthcare provider, as an official duty, in each MTF to be the resident point of contact concerning SAPR policy and sexual assault care.

(19) Submit an 8-day incident report in writing after an Unrestricted Report of sexual assault has been made in accordance with section 1743 of Public Law 113-66. The 8-day incident report will only be provided to personnel with an official need to know.

(d) MOUs or MOAs with local civilian authorities. The purpose of MOUs and MOAs is to:

(1) Enhance communications and the sharing of information regarding sexual assault prosecutions, as well as of the sexual assault care and forensic examinations that involve Service members and eligible TRICARE beneficiaries covered by this part.

(2) Collaborate with local community crisis counseling centers, as necessary, to augment or enhance their sexual assault programs.

(3) Provide liaison with private or public sector sexual assault councils, as appropriate.

(4) Provide information about medical and counseling services related to care for victims of sexual assault in the civilian community, when not otherwise available at the MTFs, in order that military victims may be offered the appropriate healthcare and civilian resources, where available and where covered by military healthcare benefits.

(5) Where appropriate or required by MOU or MOA, facilitate training for civilian service providers about SAPR policy and the roles and responsibilities of the SARC and SAPR VA.

(e) Line of duty (LOD) procedures.

(1) Members of the Reserve Components, whether they file a Restricted or Unrestricted Report, shall have access to medical treatment and counseling for injuries and illness incurred from a sexual assault inflicted upon a Service member when performing active service, as defined in section 101(d)(3) of title 10, U.S.C., and inactive duty training.

(2) Medical entitlements remain dependent on a LOD determination as to whether or not the sexual assault incident occurred in an active service or inactive duty training status. However, regardless of their duty status at the time that the sexual assault incident occurred, or at the time that they are seeking SAPR services (see § 105.3), Reserve Component members can elect either the Restricted or Unrestricted Reporting option (see 32 CFR 103.3) and have access to the SAPR services of a SARC and a SAPR VA.

(3) Any alleged collateral misconduct by a Service member victim associated with the sexual assault incident will be excluded from consideration as intentional misconduct or gross negligence under the analysis required by section 1074a(c) of title 10 U.S.C. in LOD findings for healthcare to ensure sexual assault victims are able to access medical treatment and mental health services.

(4) The following LOD procedures shall be followed by Reserve Component commanders.

(i) To safeguard the confidentiality of Restricted Reports, LOD determinations may be made without the victim being identified to DoD law enforcement or command, solely for the purpose of enabling the victim to access medical care and psychological counseling, and without identifying injuries from sexual assault as the cause.

(ii) For LOD determinations for sexual assault victims, the commander of the Reserve command in each component and the directors of the Army and Air NG shall designate individuals within their respective organizations to process LODs for victims of sexual assault when performing active service, as defined in section 101(d)(3) of title 10, U.S.C., and inactive duty training.

(A) Designated individuals shall possess the maturity and experience to assist in a sensitive situation, will have SAPR training, so they can appropriately interact with sexual assault victims, and if dealing with a Restricted Report, to safeguard confidential communications and preserve a Restricted Report (e.g. SARCs and healthcare personnel). These individuals are specifically authorized to receive confidential communications as defined by § 105.3 for the purpose of determining LOD status.

(B) The appropriate SARC will brief the designated individuals on Restricted Reporting policies, exceptions to Restricted Reporting, and the limitations of disclosure of confidential communications as specified in § 105.8(e). The SARC and these individuals, or the healthcare provider may consult with their servicing legal office, in the same manner as other recipients of privileged information for assistance, exercising due care to protect confidential communications in Restricted Reports by disclosing only non-identifying information. Unauthorized disclosure may result in disciplinary action.

(iii) For LOD purposes, the victim's SARC may provide documentation that substantiates the victim's duty status as well as the filing of the Restricted Report to the designated official.

(iv) If medical or mental healthcare is required beyond initial treatment and follow-up, a licensed medical or mental health provider must recommend a continued treatment plan.

(v) Reserve Component members who are victims of sexual assault may be retained or returned to active duty in accordance with Table 1 of this section and section 12323 of title 10 U.S.C.

(A) A request described in Table 1 of this section submitted by a Reserve Component member must be answered with a decision within 30 days from the date of the request, in accordance with Public Law 112-239.

(B) If the request is denied, the Reserve Component member may appeal to the first G/FO in his or her chain of command. A decision must be made on that appeal within 15 days from the date of the appeal, in accordance with Public Law 112-239.

Table 1 - Retention or Return to Active Duty of Reserve Component Members for LOD Determinations To Ensure Continuity of Care

If a member of the Reserve Component . . .		Then . . .
Is expected to be released from active duty before the determination is made regarding whether he or she was assaulted while in the LOD in accordance with section 12323 of title 10, U.S.C	And the sexual assault was committed while he or she was on active duty	The Secretary concerned, upon the member's request, may order him or her to be retained on active duty until the LOD determination.
Is not on active duty and the LOD determination is not completed		The Secretary concerned, upon the member's request, may order him or her to be recalled to active duty for such time as necessary for completion of the LOD determination. A member eligible for this retention or recall shall be informed as soon as practicable after the alleged assault of the option to request continuation on active duty for the LOD.

(f) Expedited victim transfer requests.

(1) Any threat to life or safety of a Service member shall be immediately reported to command and DoD law enforcement authorities (see § 105.3) and a request to transfer the victim under these circumstances will be handled in accordance with established Service regulations.

(i) Safety issues are not handled through an Expedited Transfer. They are handled through a fast safety move following applicable DoD and Service-specific procedures. (An Expedited Transfer may take longer than a safety move.)

(ii) The intent behind the Expedited Transfer policy in this section is to address situations where a victim feels safe, but uncomfortable. An example of where a victim feels uncomfortable is where a victim may be experiencing ostracism and retaliation. The intent behind the Expedited Transfer policy is to assist in the victim's recovery by moving the victim to a new location, where no one knows of the sexual assault.

(2) Service members who file an Unrestricted Report of sexual assault shall be informed by the SARC, SAPR VA, or the Service member's CO, or civilian supervisor equivalent (if applicable) at the time of making the report, or as soon as practicable, of the option to request a temporary or permanent expedited transfer from their assigned command or installation, or to a different location within their assigned command or installation in accordance with section 673 of title 10, U.S.C. The Service members shall initiate the transfer request and submit the request to their COs. The CO shall document the date and time the request is received.

(i) A presumption shall be established in favor of transferring a Service member (who initiated the transfer request) following a credible report (see § 105.3) of sexual assault. The CO, or the appropriate approving authority, shall make a credible report determination at the time the expedited request is made after considering the advice of the supporting judge advocate, or other legal advisor concerned, and the available evidence based on an MCIO's investigation's information (if available). If the Expedited Transfer is disapproved because there was no credible report, the grounds on which it was disapproved must be documented. A commander can always transfer a victim on other grounds, e.g., on humanitarian grounds, through a process outside of the Expedited Transfer process.

(ii) Expedited transfers of Service members who report that they are victims of sexual assault shall be limited to sexual assault offenses reported in the form of an Unrestricted Report.

(A) Sexual assault against adults is defined in 32 CFR 103.3 and includes rape and sexual assault in violation of Article 120, of the UCMJ (section 920 of title 10 U.S.C.) and forcible sodomy in violation of Article 125, of the UCMJ (section 925 of title 10 U.S.C.). This part does not address victims covered under the FAP.

(B) If the Service member files a Restricted Report in accordance with 32 CFR part 103 and requests an expedited transfer, the Service member must affirmatively change his or her reporting option to Unrestricted Reporting on the DD Form 2910, in order to be eligible for an expedited transfer.

(iii) When the alleged perpetrator is the commander or otherwise in the victim's chain of command, the SARC shall inform such victims of the opportunity to go outside the chain of command to report the offense to MCIOs, other COs or an Inspector General. Victims shall be informed that they can also seek assistance from a legal assistance attorney, the DoD Safe Helpline, or an SVC/VLC. The relationship between an SVC/VLC and a victim in the provision of legal advice and assistance will be the relationship between an attorney and client, in accordance with section 1044e of title 10 U.S.C.

(iv) The CO shall expeditiously process a transfer request from a command or installation, or to a different location within the command or installation. The CO shall request and take into consideration the Service member's input before making a decision involving a temporary or permanent transfer and the location of the transfer. If approved, the transfer orders shall also include the Service member's dependents (if accompanied) or military spouse (if the military spouse consents). In most circumstances, transfers to a different installation should be completed within 30 calendar days from the date the transfer is approved. Transfers to a new duty location that do not require a change of station move should be completed within 1 week from the date the transfer is approved.

(v) The CO must approve or disapprove a Service member's request for a PCS, PCA, or unit transfer within 72 hours from receipt of the Service member's request. The decision to approve the request shall be immediately forwarded to the designated activity that processes PCS, PCA, or unit transfers (see § 105.3).

(vi) If the Service member's transfer request is disapproved by the CO, the Service member shall be given the opportunity to request review by the first G/FO in the chain of command of the member, or a SES equivalent (if applicable). The decision to approve or disapprove the request for transfer must be made within 72 hours of submission of the request for review. If a civilian SES equivalent reviewer approves the transfer, the Secretary of the Military Department concerned shall process and issue orders for the transfer. All transfer requests must be reported in the Services' and NGB Annual Program Review submission; to include all disapproved transfer requests, and the reason for disapproval.

(vii) Military Departments shall make every reasonable effort to minimize disruption to the normal career progression of a Service member who reports that he or she is a victim of a sexual assault.

(viii) Expedited transfer procedures require that a CO or the appropriate approving authority make a determination and provide his or her reasons and justification on the transfer of a Service member based on a credible report of sexual assault. A CO shall consider:

(A) The Service member's reasons for the request.

(B) Potential transfer of the alleged offender instead of the Service member requesting the transfer.

(1) Commanders have the authority to make a timely determination and to take action regarding whether a Service member who is alleged to have committed or attempted to commit a sexual assault offense should be temporarily reassigned or removed from a position of authority or from an assignment. This reassignment or removal must be taken not as a punitive measure, but solely for the purpose of maintaining good order and discipline within the member's unit in accordance with section 674 of title 10 U.S.C.

(2) This determination may be made at any time after receipt of notification of an Unrestricted Report of a sexual assault that identifies the Service member as an alleged perpetrator.

(C) Nature and circumstances of the offense.

(D) Whether a temporary transfer would meet the Service member's needs and the operational needs of the unit.

(E) Training status of the Service member requesting the transfer.

(F) Availability of positions within other units on the installation.

(G) Status of the investigation and potential impact on the investigation and future disposition of the offense, after consultation with the investigating MCIOs.

(H) Location of the alleged offender.

(I) Alleged offender's status (Service member or civilian).

(J) Other pertinent circumstances or facts.

(ix) Service members requesting the transfer shall be informed that they may have to return for the prosecution of the case, if the determination is made that prosecution is the appropriate action.

(x) Commanders shall directly counsel the Service member to ensure that he or she is fully informed regarding:

(A) Reasonably foreseeable career impacts.

(B) The potential impact of the transfer or reassignment on the investigation and case disposition or the initiation of other adverse action against the alleged offender.

(C) The effect on bonus recoupment, if any.

(D) Other possible consequences of granting the request.

(xi) When an Expedited Transfer is approved, notification from the losing commander to the gaining commander will depend on whether there is an open case and continuation of services. If there is neither an open case nor continuation of services, no other action is needed. If there is an open case and services are requested, then notification to the gaining commander will occur to facilitate the investigation and access to services. This procedure applies to any sexual assault victim move (e.g., permanent change of station either on or before the member's normal rotation date, temporary duty inside or out of local area).

(A) When an Expedited Transfer is approved, the losing commander will not inform the gaining commander of the sexual assault incident unless one of the following applies:

(1) Active criminal investigation.

(2) Active legal proceeding.

(3) Ongoing victim healthcare (medical or mental health) needs that are directly related to the sexual assault.

(4) Ongoing monthly CMG oversight involving the victim or

(5) Active SAPR victim support services.

(B) When an Expedited Transfer is approved, the losing commander will inform the gaining commander of the inbound Expedited Transfer if any of the circumstances outlined in paragraph (f)(2)(xi)(A) of this section are occurring. The losing commander will limit the information given to objective facts about victim care provided, status of open investigations, and the status of ongoing legal proceedings in order to provide the gaining commander with some context for victim behavior and to facilitate the victim's access to advocacy, healthcare, MCIOs, and legal counsel.

(1) SARC or SAPR VA case documents will not be transferred to the gaining SARC without consent from the victim.

(2) The receiving commander will adopt processes to assure strict confidentiality. Only the immediate commander of the victim will be notified. The immediate commander may share the notification with the senior enlisted advisor, if deemed necessary to support the victim. All information shall be kept confidential to the extent authorized by law. Additional personnel will be notified by the commander only if they have direct input to the monthly Case Management Group meeting. Every attempt must be made to limit access to the information that a victim has been transferred into the unit as a result of a sexual assault report.

(xii) If a victim transfers from the installation, then the processes in Table 2 of this section apply as appropriate.

Table 2 - Victim Transfer Processes

If	Then
• The victim does NOT seek continued services of a SARC or SAPR VA at the new location, and	• The CMG responsibility remains with the original installation's CMG chair.
• The investigation or legal proceeding is ongoing at the original installation:	• The victim will be asked if she or he would like to receive the monthly update from the CMG meetings.
	• If the victim wants the CMG updates, then the victim's new commander will participate in person or call in to the CMG meetings and this call in will be documented in the minutes of the CMG.
	• The new commander will provide the victim a monthly update of her or his case within 72 hours of the last CMG.
The victim DOES seek SAPR services at the new location:	• The advocacy responsibility transfers to the receiving SARC at the victim's new installation (if the victim consents to seek SAPR services at new location), and then the CMG responsibility may transfer to the new location. • If the CMG does transfer to the location of the victim, then the MCIOs at the original installation (if there is an ongoing investigation) and the legal officer at the original installation (if there are ongoing legal proceedings) are required to call in to the CMG. This MCIO and legal officer call-in will be documented in the CMG notes
• The victim seeks SAPR services at the new location, and	• The SARC at the new location must call in to the CMG meeting at the original location to report on victim services and any safety or retaliation-related issues. This SARC call-in will be documented in the CMG notes.
• The Military Service determines that the CMG should stay at the original installation:	• The victim's new commander must also call in to the CMG meeting and must provide the victim a monthly update of her or his case within 72 hours of the last CMG.

(xiii) Require that expedited transfer procedures for Reserve Component members, Army NG, and Air NG members who make Unrestricted Reports of sexual assault be established by commanders within available resources and authorities. If requested by the Service member, the command should allow for separate training on different weekends or times from the alleged offender or with a different unit in the home drilling location to ensure undue burden is not placed on the Service member and his or her family by the transfer. Potential transfer of the alleged offender instead of the Service member should also be considered. At a minimum, the alleged offender's access to the Service member who made the Unrestricted Report shall be controlled, as appropriate.

(xiv) Even in those court-martial cases in which the accused has been acquitted, the standard for approving an expedited transfer still remains whether a credible report has been filed. The commander shall consider all the facts and circumstances surrounding the case and the basis for the transfer request.

(g) Military protective orders (MPO). In Unrestricted Reporting cases, commanders shall execute the following procedures regarding MPOs:

(1) Require the SARC or the SAPR VA to inform sexual assault victims protected by an MPO, in a timely manner, of the option to request transfer from the assigned command in accordance with section 567(c) of Public Law 111-84.

(2) Notify the appropriate civilian authorities of the issuance of an MPO and of the individuals involved in the order, in the event an MPO has been issued against a Service member and any individual involved in the MPO does not reside on a military installation at any time during the duration of the MPO pursuant to Public Law 110-417.

(i) An MPO issued by a military commander shall remain in effect until such time as the commander terminates the order or issues a replacement order.

(ii) The issuing commander shall notify the appropriate civilian authorities of any change made in a protective order, or its termination, in accordance with Section 561, 562, and 563 of Public Law 110-417, “Duncan Hunter National Defense Authorization Act Fiscal Year 2009.

(iii) When an MPO has been issued against a Service member and any individual involved in the MPO does not reside on a military installation at any time during the duration of the MPO, notify the appropriate civilian authorities of the issuance of an MPO and of the individuals involved in the order. The appropriate civilian authorities shall include, at a minimum, the local civilian law enforcement agency or agencies with jurisdiction to respond to an emergency call from the residence of any individual involved in the order.

(3) Military commanders will, through their installation law enforcement agency, place an active MPO in the National Crime Information Center (NCIC) for the duration of the order. Installation law enforcement will initiate a police report for the MPO, creating the required Originating Agency Case Number, and place the MPO in the NCIC Protective Order File, using Protection Order Conditions (PCO) Field Code 08 with the following mandatory caveat in the miscellaneous field: “This is a military protective order and may not be enforceable by non-military authorities. If subject is in possible violation of the order, advise the entering agency (military law enforcement).”

(4) Advise the person seeking the MPO that the MPO is not enforceable by civilian authorities off base and that victims desiring protection off base should seek a civilian protective order (CPO). Off base violations of the MPO should be reported to the issuing commander, DoD law enforcement, and the relevant MCIO for investigation.

(i) Pursuant to section 1561a of Public Law 107-311^[9] , a CPO shall have the same force and effect on a military installation as such order has within the jurisdiction of the court that issued such order. Commanders, MCIOs, and installation DoD law enforcement personnel shall take all reasonable measures necessary to ensure that a CPO is given full force and effect on all DoD installations within the jurisdiction of the court that issued such order.

(ii) If the victim has informed the SARC of an existing CPO, a commander shall require the SARC to inform the CMG of the existence of the CPO and its requirements. After the CPO information is received at the CMG, DoD law enforcement agents shall be required to document CPOs for all Service members in their investigative case file, to include documentation for Reserve Component personnel in title 10 status.

(5) MPOs in cases other than sexual assault matters may have separate requirements.

(6) The issuing commanders will fill out the DD Form 2873, “Military Protective Order (MPO),” and is required to provide victim(s) and alleged offender(s) with copies of the completed form. Verbal MPOs can be issued, but need to be subsequently documented with a DD Form 2873, as soon as possible.

(7) Require DoD law enforcement agents document MPOs for all Service members in their investigative case file, to include documentation for Reserve Component personnel in title 10 status. The appropriate DoD law enforcement agent representative to the CMG shall brief the CMG chair and co-chair on the existence of an MPO.

(8) If the commander's decision is to deny the MPO request, document the reasons for the denial. Denials of MPO requests go to the installation commander or equivalent command level (in consultation with a judge advocate) for the final decision.

(i) The number of MPO(s) issued, to include violations, must be included in the Services' and NGB Annual Program Review submission, as required by Public Law 111-84.

(ii) [Reserved]

(h) Collateral misconduct in sexual assault cases.

(1) Collateral misconduct by the victim of a sexual assault is one of the most significant barriers to reporting assault because of the victim's fear of punishment. Some reported sexual assaults involve circumstances where the victim may have engaged in some form of misconduct (e.g., underage drinking or other related alcohol offenses, adultery, fraternization, or other violations of certain regulations or orders). Commanders shall have discretion to defer action on alleged collateral misconduct by the sexual assault victims (and shall not be penalized for such a deferral decision), until final disposition of the sexual assault case, taking into account the trauma to the victim and responding appropriately so as to encourage reporting of sexual assault and continued victim cooperation, while also bearing in mind any potential speedy trial and statute of limitations concerns.

(2) In accordance with Executive Order 13696 initial disposition authority is withheld from all commanders within the DoD who do not possess at least special court-martial convening authority and who are not in the grade of 0-6 (i.e., colonel or Navy captain) or higher, with respect to the alleged offenses of rape, sexual assault, and forcible sodomy; all attempts to commit such offenses, in violation of Articles 120, 125, and 80 of the UCMJ (sections 920, 925, and 880 of title 10, U.S.C.); and all other alleged offenses arising from or relating to the same incident, whether committed by the alleged offender or alleged to have been committed by the sexual assault victim (collateral misconduct). Commanders may defer taking action on a victim's alleged collateral misconduct arising from or relating to the sexual assault incident until the initial disposition action for the sexual assault investigation is completed.

(3) Commanders and supervisors should take appropriate action for the victim's alleged collateral misconduct (if warranted), responding appropriately in order to encourage sexual assault reporting and continued cooperation, while avoiding those actions that may further traumatize the victim. Ultimately, victim cooperation should significantly enhance timely and effective investigations, as well as the appropriate disposition of sexual assaults.

(4) Subordinate commanders shall be advised that taking action on a victim's alleged collateral misconduct may be deferred until final disposition of the sexual assault case. The Military Departments shall establish procedures so that commanders and supervisors are not penalized for deferring collateral misconduct actions for the sexual assault victim until final disposition of the sexual assault case.

(5) Commanders shall have the authority to determine, in a timely manner, how to best manage the disposition of alleged misconduct, to include making the decision to defer disciplinary actions regarding a victim's alleged collateral misconduct until after the final disposition of the sexual assault case, where appropriate. For those sexual assault cases for which the victim's alleged collateral misconduct is deferred, Military Service reporting and processing requirements should take such deferrals into consideration and allow for the time deferred to be subtracted, when evaluating whether a commander took too long to resolve the collateral misconduct.

(i) Commander SAPR prevention procedures. Each commander shall implement a SAPR prevention program that:

(1) Establishes prevention practice consistent with his or her Service's implementation of the “Department of Defense 2014-2016 Sexual Assault Prevention Strategy”. Prevention programs will address concerns about unlawful command influence so that victims' rights are protected at the same time that the due process rights of the alleged offenders are safeguarded.

(2) Establishes a command climate of sexual assault prevention predicated on mutual respect and trust, recognizes and embraces diversity, and values the contributions of all its Service members.

(3) Emphasizes that sexual assault is a crime and violates the core values of being a professional in the Military Services and ultimately destroys unit cohesion and the trust that is essential for mission readiness and success.

(4) Emphasizes DoD and Military Service policies on sexual assault and the potential legal consequences for those who commit such crimes.

(5) Monitors the organization's SAPR climate and responds with appropriate action toward any negative trends that may emerge.

(6) Reflects feedback and modifications based on command climate surveys, which are regularly administered in accordance with section 572 of Public Law 112-239.

(7) Identifies and remedies environmental factors specific to the location that may facilitate the commission of sexual assaults (e.g., insufficient lighting).

(8) Emphasizes sexual assault prevention training for all assigned personnel.

(9) Establishes prevention training that focuses on identifying the behavior of potential offenders.

(10) Identifies and utilizes community-based resources and partnerships to add depth to prevention efforts.

[81 FR 66441, Sept. 27, 2016]

Footnotes - 105.9

^[6] Available: http://www.gpo.gov/fdsys/pkg/PLAW-104publ191/pdf/PLAW-104publ191.pdf.

^[7] Available: http://www.dtic.mil/whs/directives/corres/pdf/103001p.pdf.

^[8] Available: http://ntl.bts.gov/DOCS/iga.html.

^[9] Available: http://www.gpo.gov/fdsys/pkg/PLAW-107publ311/pdf/PLAW-107publ311.pdf.