[Federal Register Volume 59, Number 143 (Wednesday, July 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17726]
[[Page Unknown]]
[Federal Register: July 27, 1994]
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Part II
Department of Defense
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Department of the Army
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32 CFR Part 516
Litigation; Final Rule
DEPARTMENT OF DEFENSE
Department of the Army
32 CFR Part 516
Litigation
AGENCY: Office of the Judge Advocate General, Litigation Division, DOD.
ACTION: Final rule.
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SUMMARY: This final rule revises 32 CFR Part 516, Litigation, Army
Regulation 27-40, Litigation, previously published in the Federal
Register as a proposed rule (57 FR 31852). This rule devotes a separate
subpart to service of process (subpart B). The former ``investigative
report'' is replaced by ``litigation report'' reflecting current usage
(subpart C). A separate subpart is devoted to individual liability
(subpart D). This rule also treats environmental litigation (subpart
F), deletes coverage of criminal prosecutions in U.S. Magistrate and
District Courts, delegates more authority to the installation level to
determine release of information and appearance of witnesses (subpart
G); and updates procedures to obtain release from local or state jury
duty (subpart J).
EFFECTIVE DATE: This final rule is effective July 27, 1994.
ADDRESS: Office of the Judge Advocate General, ATTN: Litigation
Division (DAJA-LT), 901 North Stuart Street, Arlington, VA 22203-1837.
FOR FURTHER INFORMATION CONTACT: MAJ Kelly Wheaton, (703) 696-1638.
SUPPLEMENTARY INFORMATION: This part prescribes policy and procedures
for litigation in civilian court proceedings, including the following:
providing representation of the Army and its personnel in Federal and
state court proceedings; remedies for procurement fraud; environmental
litigation; bankruptcy; prosecution in Federal court of offenses in
which the Army has an interest; release of information and appearance
of witnesses in criminal and civil court actions; procedures to follow
when soldiers are summoned for jury duty; and, procedures for
cooperation with the Office of Special Counsel. This part does not
apply to DA or DOD proceedings such as courts-martial or administrative
boards.
Executive Order 12291
This final rule has been classified as nonmajor. The effect of the
this rule on the economy will be less than $100 million.
Regulatory Flexibility Act
This final rule has been reviewed with regard to the requirements
of the Regulatory Flexibility Act of 1980. This final rule does not
have a significant impact on small entities.
Paperwork Reduction Act
This final rule does not contain new reporting or recordkeeping
requirements subject to the approval by the Office of Management and
Budget under the requirements of the Paperwork Reduction Act of 1980
(44 U.S.C. 3507).
Kenneth L. Denton,
Army Federal Register Liaison Officer.
Accordingly, 32 CFR Part 516 is revised as follows:
PART 516--LITIGATION
Subpart A--General
Sec.
Sec. 516.1 Purpose.
Sec. 516.2 References.
Sec. 516.3 Explanation of abbreviations and terms.
Sec. 516.4 Responsibilities.
Sec. 516.5 Restriction on contact with DOJ.
Sec. 516.6 Appearance as counsel.
Sec. 516.7 Mailing addresses.
Subpart B--Service of Process
Sec. 516.8 General.
Sec. 516.9 Service of criminal process within the United States.
Sec. 516.10 Service of civil process within the United States.
Sec. 516.11 Service of criminal process outside the United States.
Sec. 516.12 Service of civil process outside the United States.
Sec. 516.13 Assistance in serving process overseas.
Sec. 516.14 Service of process on DA or Secretary of Army.
Subpart C--Reporting Legal Proceedings to HQDA
Sec. 516.15 General.
Sec. 516.16 Individual and supervisory responsibilities upon
commencement of legal proceedings.
Sec. 516.17 SJA or legal adviser responsibilities.
Sec. 516.18 Litigation alleging individual liability.
Sec. 516.19 Injunctive relief.
Sec. 516.20 Habeas corpus.
Sec. 516.21 Litigation against government contractors.
Sec. 516.22 Miscellaneous reporting requirements.
Sec. 516.23 Litigation reports.
Sec. 516.24 Preservation of evidence.
Sec. 516.25 DA Form 4.
Sec. 516.26 Unsworn declarations under penalty of perjury.
Subpart D--Individual Liability
Sec. 516.27 Scope.
Sec. 516.28 Policy.
Sec. 516.29 Federal statutes and regulations.
Sec. 516.30 Procedures for obtaining certification and DOJ
representation.
Sec. 516.31 Private counsel at government expense.
Sec. 516.32 Requests for indemnification.
Subpart E--Legal Proceedings Initiated by the United States Medical
Care and Property Claims
Sec. 516.33 General.
Sec. 516.34 Referral of medical care and property claims for
litigation.
Sec. 516.35 Preparation of claims for litigation.
Assertion of Other Claims
Sec. 516.36 Referral to Litigation Division.
Sec. 516.37 Proceedings to repossess government real property or
quarters or to collect delinquent rent.
Subpart F--Environmental Litigation
Sec. 516.38 Scope.
Sec. 516.39 Duties and procedures.
Subpart G--Release of Information and Appearance of Witness Scope
Sec. 516.40 General.
Sec. 516.41 Policy.
Sec. 516.42 Reference to HQDA.
Release of Records in Connection with litigation
Sec. 516.43 Release of Army and other agency records.
Sec. 516.44 Determination of release authorization.
Sec. 516.45 Records determined to be releasable.
Sec. 516.46 Records determined not to be releasable.
DA Personnel as Witnesses in Private Litigation
Sec. 516.47 Response to subpoenas, orders, or requests for
witnesses.
Sec. 516.48 Official information.
Sec. 516.49 Expert witnesses.
Sec. 516.50 Interference with mission.
Litigation in Which the United States Has an Interest
Sec. 516.51 Response to subpoenas, orders, or requests for
witnesses.
Sec. 516.52 Expert witnesses.
Sec. 516.53 News media and other inquiries.
Status, Travel, and Expenses of Witnesses
Sec. 516.54 Witnesses for the United States.
Sec. 516.55 Witnesses for a state or private litigant.
Sec. 516.56 Witnesses before foreign tribunals.
Subpart H--Remedies in Procurement Fraud and Corruption
Sec. 516.57 Purpose.
Sec. 516.58 Policies.
Sec. 516.59 Duties and procedures.
Sec. 516.60 Procurement fraud and irregularities programs at
MACOMs.
Sec. 516.61 Reporting requirements.
Sec. 516.62 PFD and HQ USACIDC coordination.
Sec. 516.63 Coordination with DOJ.
Sec. 516.64 Comprehensive remedies plan.
Sec. 516.65 Litigation reports in civil recovery cases.
Sec. 516.66 Administrative and contractual actions.
Sec. 516.67 Overseas cases of fraud or corruption.
Sec. 516.68 Program Fraud Civil Remedies Act (PFCRA).
Subpart I--Cooperation With the Office of Special Counsel
Sec. 516.69 Introduction.
Sec. 516.70 Policy.
Sec. 516.71 Duties.
Sec. 516.72 Procedures.
Sec. 516.73 Assistance from HQDA.
Subpart J--Soldiers Summoned to serve on State and Local Juries
Sec. 516.74 General.
Sec. 516.75 Policy.
Sec. 516.76 Exemption determination authority.
Sec. 516.77 Procedures for exemption.
Sec. 516.78 Status, fees, and expenses.
Appendix A to Part 516--References.
Appendix B to Part 516--Mailing Addresses.
Appendix C to Part 516--Department of Defense Directive 5405.2,
Release of Official Information in Litigation and Testimony by DOD
Personnel as Witnesses.
Appendix D to Part 516--Department of Defense Directive 7050.5,
Coordination of Remedies for Fraud and Corruption Related to
Procurement Activities.
Appendix E to Part 516--Department of Defense Directive 5505.5,
Implementation of the Program Fraud Civil Remedies Act.
Appendix F to part 516--Glossary.
Appendix G to Part 516--Figures.
Authority: 5 U.S.C. 552; 10 U.S.C. 218, 1037, 1089, 1552, 1553,
2036; 18 U.S.C. 219, 3401; 28 U.S.C. 50, 513, 515, 543; 31 U.S.C.
3729 and 41 U.S.C. 51; 42 U.S.C. 290, 2651; 43 U.S.C. 666
Subpart A--General
Sec. 516.1 Purpose.
(a) This part prescribes policies and procedures for the following:
(l) Defensive and affirmative litigation in Federal and state
civilian courts where the Army or DOD has an interest in the matter.
(2) Proceedings before Federal or state administrative bodies, such
as utility rate commissions.
(3) Release of official information and testimony by DA personnel
with regard to litigation.
(4) Remedies for procurement fraud and corruption.
(5) Environmental civil litigation and administrative proceedings.
(6) Proceedings before the Office of Special Counsel.
(b) This regulation does not apply to DA or DOD proceedings such as
courts-martial or administrative boards.
Sec. 516.2 References.
Applicable publications and forms are listed in Appendix A to this
part.
Sec. 516.4 Explanation of abbreviations and terms.
(a) The Glossary contains explanations of abbreviations and terms.
(b) The masculine gender has been used throughout this regulation
for simplicity and consistency. Any reference to the masculine gender
is intended to include women.
Sec. 516.4 Responsibilities.
(a) United States Department of Justice (DOJ). DOJ will defend
litigation in domestic and foreign courts, against the United States,
its agencies and instrumentalities, and employees whose official
conduct is involved. The various U.S. Attorney Offices, under the
oversight of the Attorney General, will conduct much of the
representation.
(b) The Judge Advocate General (TJAG). Subject to the ultimate
control of litigation by DOJ (including the various U.S. Attorney
Offices), and to the general oversight of litigation by the Army
General Counsel, TJAG is responsible for litigation in which the Army
has an interest. Only TJAG (or Chief, Litigation Division) will
communicate to DOJ the Army's position with regard to settlement of a
case.
(c) Assistant Judge Advocate General For Civil Law and Litigation
(AJAG-CL). Responsible to TJAG for litigation issues; supervises Chief,
Litigation Division.
(d) Chief, Litigation Division. Reports to AJAG-CL and is
responsible for the following:
(1) Supervising litigation in which the Army has an interest.
(2) Acting for TJAG and Secretary of the Army on litigation issues,
including the authority to settle or compromise cases, subject to the
supervision of TJAG and AJAG-CL.
(3) Delegating cases if appropriate.
(4) Serving as primary contact with DOJ on litigation.
(5) Accepting service of process for DA and for the Secretary of
the Army in his official capacity. See 32 CFR Sec. 257.5).
(e) Special Assistant U.S. Attorneys (SAUSAs) and DOJ Special
Attorneys. Army judge advocates and civilian attorneys, when appointed
as SAUSAs under 28 U.S.C. 543, will represent the Army's interests in
either criminal or civil matters in Federal court under the following
circumstances:
(1) Felony and misdemeanor prosecutions in Federal court. Army
attorneys, at the installation level, after being duly appointed (See
AR 27-10), will prosecute cases, in which the Army has an interest, in
Federal court. Army attorneys who prosecute criminal cases will not
represent the United States in civil litigation without authorization
from Chief, Litigation Division.
(2) SAUSAs for civil litigation. By assignment of TJAG and upon the
approval of the U.S. Attorney, Judge Advocates will serve within a U.S.
Attorney's office to represent the government in litigation in which
the Army or DOD has an interest. These Judge Advocates have the same
general authority and responsibility as an Assistant U.S. Attorney.
(3) Special Attorneys assigned to DOJ. By assignment of TJAG and
with the concurrence of the appropriate DOJ official, Judge Advocates
will work as Special Attorneys for DOJ. Special Attorneys are
authorized to represent the United States in civil litigation in which
the Army or DOD has an interest.
(f) Attorneys at Army activities or commands. SJAs or legal
advisers, or attorneys assigned to them, will represent the United
States in litigation only if authorized by this regulation or delegated
authority in individual cases by the Chief, Litigation Division.
(g) Commander, U.S. Army Claims Service (USARCS). The Commander,
USARCS, and USARCS attorneys, subject to AR 27-20, Chapter 4, will
maintain direct liaison with DOJ in regard to administrative settlement
of claims under the Federal Tort Claims Act.
(h) Chief, Contract Law Division, OTJAG. The Chief, Contract Law
Division, attorneys assigned to the Contract Law Division, and other
attorneys designated by the Chief, Contract Law Division, in litigation
involving taxation, will represent DA in negotiation, administrative
proceedings, and litigation, and maintain liaison with DOJ and other
governmental authorities.
(i) Legal Representatives of the Chief of Engineers. The Office of
Chief Counsel, attorneys assigned thereto, and other attorneys
designated by the Chief Counsel will maintain direct liaison with DOJ
in litigation and administrative proceedings arising from the
navigation, civil works, Clean Water Act 404 permit authority,
environmental response activities, and real property functions of the
U.S. Army Corps of Engineers.
(j) Chief Trial Attorney, Contract Appeals Division, USALSA. The
Chief Trial Attorney, attorneys assigned to the Contract Appeals
Division, and attorneys designated by the Chief Trial Attorney will
represent the government before the Armed Services Board of Contract
Appeals and the General Services Board of Contract Appeals. They will
maintain direct liaison with DOJ concerning appeals from ASBCA and
GSBCA decisions. The Chief Trial Attorney has designated COE attorneys
to act as trial attorneys in connection with COE contract appeals.
(k) Chief, Regulatory Law Office, USALSA. The Chief, Regulatory Law
Office, attorneys assigned to the Regulatory Law Office, and other
attorneys designated by the Chief, will represent DA consumer interests
in regulatory matters before state and Federal administrative agencies
and commissions, including but not limited to proceedings involving
rates and conditions for the purchase of services for communications
(except long-distance telephone), transportation, and utilities (gas,
electric, water and sewer). They will maintain direct liaison with DOJ
for communications, transportation, and utilities litigation.
(l) Chief, Intellectual Property Law Division, USALSA. The Chief,
Intellectual Property Law Division, and the attorneys assigned thereto
will represent DA in matters pertaining to patents, copyrights, and
trademarks. They will maintain direct liaison with DOJ concerning
intellectual property issues.
(m) Chief, Labor and Employment Law Office, OTJAG. The Chief, Labor
and Employment Law Office, attorneys assigned thereto, and attorneys
identified as labor counselors will represent DA in matters pertaining
to labor relations, civilian personnel, and Federal labor standards
enforcement before the following: Federal Labor Relations Authority;
Merit Systems Protection Board; Equal Employment Opportunity
Commission; Department of Labor; National Labor Relations Board; and,
state workmen's compensation commissions. In the event any individual
mentioned in this subparagraph intends to make a recommendation to DOJ
concerning an appeal of any case to a U.S. Court of Appeals, such
recommendation will first be coordinated with Litigation Division.
(n) Chief, Procurement Fraud Division, USALSA. The Chief,
Procurement Fraud Division, attorneys assigned thereto, and other
attorneys designated by the Chief will represent DA in all procurement
fraud and corruption matters before the Army suspension and debarment
authority and before any civil fraud recovery administrative body. They
will maintain liaison and coordinate remedies with DOJ and other
agencies in matters of procurement fraud and corruption.
(o) Chief, Environmental Law Division, USALSA. The Chief,
Environmental Law Division, attorneys assigned thereto, and other
attorneys designated by the Chief, ELD, will maintain direct liaison
with DOJ in all environmental and natural resources civil litigation
and administrative proceedings involving missions and functions of DA,
its major and subordinate commands, installations presently or
previously managed by DA, and other sites or issues in which DA has a
substantial interest, except as otherwise specifically provided in this
regulation.
(p) Chief, Criminal Law Division, OTJAG. The Chief, Criminal Law
Division, will have general oversight of felony and magistrate court
prosecutions conducted by Army lawyers acting as Special Assistant U.S.
Attorneys. (See subpart G of this part). The Chief will coordinate with
DOJ and other governmental agencies concerning the overall conduct of
these prosecutions.
Sec. 365.5 Restriction on contact with DOJ.
(a) General rule. Except as authorized by TJAG, the General
Counsel, the Chief of Litigation Division, or this regulation, no Army
personnel will confer or correspond with DOJ concerning legal
proceedings in which the Army has an interest.
(b) Exceptions. This prohibition does not preclude contact with DOJ
required by the Memorandum of Understanding between DOJ and DOD
relating to the investigation and prosecution of certain crimes. (See
AR 27-10, para 2-7). In addition, an installation SJA or legal adviser
is expected to maintain a working relationship with the U.S. Attorney
in each district within his geographical area. An SJA or legal adviser
should request the U.S. Attorney to advise him immediately when
litigation involving DA or its personnel is served on the U.S.
Attorney.
Sec. 516.6 Appearance as counsel.
(a) General. Military personnel on active duty and DA civilian
personnel will not appear as counsel before any civilian court or in
any preliminary proceeding, for example, deposition, in litigation in
which the Army has an interest without the prior written approval of
TJAG, except under the following conditions:
(1) The appearance is authorized by this regulation.
(2) The individual is a party to the proceeding.
(3) The appearance is authorized under an expanded legal assistance
program (See AR 27-3).
(4) The individual is a judge advocate assigned or detailed by TJAG
to DOJ to represent the United States in civil or criminal cases, for
example, a Special Assistant U.S. Attorney, or an attorney assigned to
Litigation Division.
(b) Procedure. All requests for appearance as counsel will be made
through Litigation Division to the Personnel, Plans and Training
Office, OTJAG. Requests for DA military or civilian attorneys to appear
in any civilian court or proceeding on behalf of a soldier who is also
facing UCMJ action will be delivered to the SJA, legal adviser, or
Regional Defense Counsel, as appropriate. The SJA or legal adviser will
forward the request to Litigation Division with an evaluation of the
case and recommendation. Regional Defense Counsel should send requests
for USATDS counsel to Chief, USATDS, who will forward the request to
Litigation Division. Privileged or otherwise sensitive client
information should only be submitted through USATDS channels.
Sec. 516.7 Mailing addresses.
Mailing addresses for organizations referenced in this regulation
are in Appendix B to this part.
Subpart B--Service of Process
Sec. 516.8 General.
(a) Defined. Process is a legal document that compels a defendant
in an action to appear in court or to comply with the court's demands,
for example, in a civil case a summons or subpoena, or in a criminal
case, a warrant for arrest, indictment, contempt order, subpoena, or
summons. Service of process is the delivery of the document to a
defendant to notify him of a claim or charge against him.
(b) Policy. DA personnel will follow the guidance of this chapter
when civil officials attempt to serve civil or criminal process on
individuals on Federal property.
(c) Procedures. Provost marshals shall ensure that installation law
enforcement personnel are adequately trained to respond to situations
which arise with regard to service of civil and criminal process. SJAs
or legal advisers shall provide guidance to law enforcement personnel
in these matters.
Sec. 516.9 Service of criminal process within the United States.
(a) Surrender of personnel. Guidance for surrender of military
personnel to civilian law enforcement officials is in Chapter 7 of AR
630-10 and AR l90-9. Army officials will cooperate with civilian law
enforcement authorities who seek the surrender of a soldier in
connection with criminal charges. Special rules apply when a bail
bondsman or other surety seeks custody of a soldier.
(b) Requests for witnesses or evidence in criminal proceedings. See
subpart H to this part.
Sec. 516.10 Service of civil process within the United States.
(a) Policy. DA officials will not prevent or evade the service or
process in legal actions brought against the United States or against
themselves in their official capacities. If acceptance of service of
process would interfere with the performance of military duties, Army
officials may designate a representative to accept service. DA
personnel sued in their individual capacity should seek legal counsel
concerning voluntary acceptance of process.
(b) Requests for witnesses or evidence in civil proceedings. See
subpart H to this part.
(c) Process of Federal courts. Subject to reasonable restrictions
imposed by the commander, civil officials will be permitted to serve
Federal process. (See Fed. R. Civ. P. 4, 45).
(d) Process of state courts.
(1) In areas of exclusive Federal jurisdiction that are not subject
to the right to serve state process, the commander or supervisor will
determine whether the individual to be served wishes to accept service
voluntarily. A JA or other DA attorney will inform the individual of
the legal effect of voluntary acceptance. If the individual does not
desire to accept service, the party requesting service will be notified
that the nature of the exclusive Federal jurisdiction precludes service
by state authorities on the military installation.
(2) On Federal property where the right to serve process is
reserved by or granted to the state, in areas of concurrent
jurisdiction, or where the United States has only a proprietary
interest, Army officials asked to facilitate service of process will
initially proceed as provided in the preceding subparagraph. If the
individual declines to accept service, the requesting party will be
allowed to serve the process in accordance with applicable state law,
subject to reasonable restrictions imposed by the commander.
(e) Process of foreign courts. A U.S. District Court may order
service upon a person who resides in the judicial district of any
document issued in connection with a proceeding in a foreign or
international tribunal. (28 U.S.C. 1696). In addition, the U.S. State
Department has the power to receive a letter rogatory issued by a
foreign or international tribunal, to transmit it to a tribunal,
officer or agency in the United States, and to return it after
execution. (28 U.S.C. 1781). Absent a treaty or agreement to the
contrary, these provisions will govern.
(f) Seizure of personal property. State and Federal courts issue
orders (for example, writ of attachment) authorizing a levy (seizure)
of property to secure satisfaction of a judgment. DA personnel will
comply with valid state or Federal court orders commanding or
authorizing the seizure of private property to the same extent that
state or Federal process is served.
Sec. 516.11 Service of criminal process outside the United States.
Army Regulation 630-10 and international treaties, such as status
of forces agreements, govern the service of criminal process of foreign
courts and the surrender of soldiers to foreign civilian law
enforcement officials.
Sec. 516.12 Service of civil process outside the United States.
(a) Process of foreign courts. In foreign countries service of
process issued by foreign courts will be made under the law of the
place of service, as modified by status of forces agreements, treaties
or other agreements. In foreign areas under exclusive U.S.
jurisdiction, service of process issued by foreign courts will be made
under the law specified by appropriate U.S. authority.
(b) Process of Federal courts. Service of process on U.S. citizens
or residents may be accomplished under the following provisions: The
Hague Convention, reprinted in 28 USCA Federal Rules of Civil
Procedure, following Rule 4; Fed. R. Civ. P. 4(i); 28 USC 1781 and
1783; and, the rules of the Federal court concerned. If a DA official
receives a request to serve Federal process on a person overseas, he
will determine if the individual wishes to accept service voluntarily.
Individuals will be permitted to seek counsel. If the person will not
accept service voluntarily, the party requesting service will be
notified and advised to follow procedures prescribed by the law of the
foreign country concerned.
(c) Process of state courts. If a DA official receives a request to
serve state court process on a person overseas, he will determine if
the individual wishes to accept service voluntarily. Individuals will
be permitted to seek counsel. If the person will not accept service
voluntarily, the party requesting service will be notified and advised
to follow procedures prescribed by the law of the foreign country
concerned. (See, for example, The Hague Convention, reprinted in 28
USCA Federal Rules of Civil Procedure, following Rule 4).
(d) Suits against the United States. DA personnel served with
foreign civil process will notify the appropriate SJA or legal adviser,
who will return the document to the issuing authority explaining the
lack of authority to accept service for the United States. Service on
the United States must be made upon DOJ through established diplomatic
channels.
Sec. 516.13 Assistance in serving process overseas.
(a) Europe. For information and assistance concerning service of
process of persons assigned to or accompanying U.S. Forces in Europe,
contact the Foreign Law Branch, International Law Division, Office of
The Judge Advocate, Headquarters U.S. Army, Europe, and Seventh Army,
Unit 29351, (Heidelberg, Germany) APO AE 09014.
(b) Korea. For information and assistance concerning service of
process of persons assigned to or accompanying U.S. Forces in Korea,
contact Staff Judge Advocate, US Forces Korea (Seoul, Republic of
Korea), APO AP 96205.
(c) Panama, Central and South America. For information and
assistance concerning service of process of persons assigned to or
accompanying forces in the U.S. Army Southern Command, contact Staff
Judge Advocate, HQ, US Army South, Fort Clayton, Panama, APO AA 34004-
5000.
Sec. 516.14 Service of process on DA or Secretary of Army.
The Chief, Litigation Division, shall accept service of process for
Department of the Army or for the Secretary of the Army in his official
capacity.
Subpart C--Reporting Legal Proceedings to HQDA
Sec. 516.15 General.
(a) Legal proceedings requiring reporting. Actions must be taken
upon commencement of litigation or administrative proceedings in which
the United States has an interest. Typically, the Secretary of the
Army, DA, the United States, or DA personnel are named as defendant in
a lawsuit or as respondent in an administrative proceeding. A
nonexclusive listing of cases in which the United States has an
interest include the following:
(1) Suits for damages, injunctive relief, or other action filed
against the government or against DA personnel in their official
capacity.
(2) Suits alleging individual liability arising from performance of
official duties by DA personnel.
(3) Actions affecting DA operations or activities or which might
require official action by DA personnel.
(4) Actions arising out of DA contracts, subcontracts, or purchase
orders wherein the government might be required to reimburse a
contractor for litigation expenses.
(5) Bankruptcy proceedings in which the United States or its
instrumentalities may have an interest, including bankruptcies
involving government contractors.
(b) Command and agency responsibility. Commanders and supervisors
of Army units, installations, or organizations will ensure reports
required by this section are promptly submitted.
(c) Reports to HQDA. Reports required by this regulation will be
made telephonically or mailed to the responsible organization at DA.
Appendix B to this part contains mailing addresses for these offices.
Except in the situations described below, reports required by this
chapter will be made to Litigation Division:
(1) Actual or potential litigation (or administrative infringement
claims) involving patents, copyrights, or trademarks will be made to
Intellectual Property Law Division.
(2) Reports of pending or prospective litigation involving taxation
will be made to Contract Law Division.
(3) Communications, transportation, and utility services reports
will be made to Regulatory Law Office.
(4) Reports involving environmental and natural resource litigation
and administrative proceedings will be made to Environmental Law
Division.
(5) Potential civil recovery reports in cases of procurement fraud
and corruption will be made to Procurement Fraud Division.
(6) Reports involving the felony prosecution program and magistrate
court prosecutions will be made to Criminal Law Division, OTJAG.
(7) Cases before the Armed Services Board of Contract Appeals and
the General Services Board of Contract Appeals will be made to Contract
Appeals Division.
(d) Classified information. Information required by this regulation
will be submitted in an unclassified form if possible. If downgrading
or declassification is not feasible, the classified material should be
separated from the report and forwarded under separate cover.
(e) Other reporting requirements. Reports required by this chapter
are in addition to and do not satisfy any other reporting requirement,
such as the following: notifying the FBI of offenses pursuant to AR 27-
10; submitting serious incident reports pursuant to AR 190-40;
reporting procurement fraud or other irregularities per Defense Federal
Acquisition Regulation Supplement, section 209.406-3 (48 CFR 209.406-
3); reporting the exercise of criminal jurisdiction by foreign
tribunals over U.S. personnel pursuant to AR 27-50; or, reporting
bankruptcies per AR 37-103.
(f) Reports control exemption. The reports required herein are
exempt from reports control under AR 335-15, paragraphs 3-3a(5) and 5-
2e(4).
Sec. 516.16 Individual and supervisory procedures upon commencement of
legal proceedings.
(a) Individual procedures. DA personnel served with civil or
criminal process concerning a proceeding in which the United States has
an interest (Sec. 516.15) will immediately inform their supervisor and
furnish copies of process and pleadings. There is no requirement to
notify supervisors of purely private litigation.
(b) Supervisory procedures. When supervisors learn that legal
proceedings in which the United States has an interest have commenced,
the supervisor will forward a copy of all process and pleadings, along
with other readily available information, to the SJA or legal adviser.
If no legal officer is available locally, the documents will be
forwarded to the SJA or legal adviser of the next higher headquarters.
Sec. 516.17 SJA or legal adviser procedures.
(a) Immediate notice to HQDA. When an SJA or legal adviser learns
of litigation in which the United States has an interest, and it
appears that HQDA is not aware of the action, the SJA or legal adviser
will telephonically notify the responsible HQDA office. (See
Sec. 516.15(c)). Immediate notice is particularly important when
litigation involves one of the following: a lawsuit against an employee
in his individual capacity; a motion for a temporary restraining order
or preliminary injunction; a habeas corpus proceeding; a judicial or
administrative proceeding involving less than 60 days to file an
answer; and, actions with possible Congressional, Secretarial, or Army
Staff interest. For legal proceedings instituted in foreign tribunals,
the SJA or legal adviser will also notify the major overseas commander
concerned and the appropriate U.S. Embassy or Legation. A telephonic
report to HQDA should include the following:
(1) Title or style of the proceeding.
(2) Full names and addresses of the parties.
(3) Tribunal in which the action is filed, date filed, docket
number, when and on whom service of process was made, and date by which
pleading or response is required.
(4) Nature of the action, amount claimed or relief sought.
(5) Reasons for immediate action.
(b) Transmission of process, pleadings, and related papers. Unless
instructed otherwise by HQDA, the SJA or legal adviser will FAX or mail
HQDA a copy of all process, pleadings, and related papers. Use of
express mail or overnight delivery service is authorized.
(c) Notice to U.S. Attorney. If the legal proceeding is instituted
in the United States, the SJA or legal adviser, unless instructed
otherwise by HQDA, will notify the appropriate U.S. Attorney and render
assistance as required.
Sec. 516.18 Litigation alleging individual liability.
See Subpart D for procedures to follow when DA personnel, as a
result of performance of official duties, are either sued in their
individual capacities or face criminal charges.
Sec. 516.19 Injunctive relief.
(a) General. Plaintiffs may attempt to force government action or
restraint in important operational matters or pending personnel actions
through motions for temporary restraining orders (TRO) or preliminary
injunctions (PI). Because these actions can quickly impede military
functions, immediate and decisive action must be taken.
(b) Notification to HQDA and U.S. Attorney. The SJA or legal
adviser will immediately notify Litigation Division or other
appropriate office at HQDA when a motion for TRO or PI has been, or is
about to be, filed. The SJA or legal adviser will also notify the
responsible U.S. Attorney.
(c) Actions by SJA or legal adviser. The SJA or legal adviser will
assist the DOJ or DA attorney responsible for the litigation.
Installation attorneys or support personnel should begin accumulating
relevant documentary evidence and identifying witnesses. If requested,
installation attorneys will prepare a legal memorandum concerning the
motion, giving particular attention to the following issues relevant to
a court granting injunctive relief:
(1) Plaintiff's likelihood of success on the merits.
(2) Whether plaintiff will be irreparably harmed if injunctive
relief is not granted.
(3) Harm to defendant and other parties if injunctive relief is
granted.
(4) The public interest.
Sec. 516.20 Habeas Corpus.
(a) General. A soldier may file a writ of habeas corpus to
challenge his continued custody (usually in a post court-martial
situation) or retention in the Army. As is the case with injunctive
relief in the preceding paragraph, installation SJAs and legal advisers
must take immediate action.
(b) Notification to Litigation Division and U.S. Attorney. The SJA
or legal adviser will notify Litigation Division and the responsible
U.S. Attorney's Office immediately upon learning that a petition for
writ of habeas corpus has been filed. All relevant documentary evidence
supporting the challenged action should be assembled immediately.
(c) Procedures in habeas corpus. Upon the filing of a petition for
a writ of habeas corpus, the court will dismiss the petition, issue the
writ, or order the respondent to show cause why it should not be
granted. If a writ or order to show cause is issued, the SJA or legal
adviser should be prepared to assist the responsible Litigation
Division or DOJ attorney in preparing a return and answer. If so
directed, the SJA will also prepare a memorandum of points and
authorities to accompany the return and answer. The government's
response should cover the following: whether the Army has custody of
petitioner; whether respondent and petitioner are within the judicial
district; and, whether appellate or administrative remedies have been
exhausted.
(d) Writs or orders issued by state courts. No state court, after
being judicially informed that a petitioner is in custody under the
authority of the United States, should interfere with that custody or
require that petitioner be brought before the state court. A deserter,
apprehended by any civil officer having authority to apprehend
offenders under the laws of the United States or of any state,
district, territory, or possession of the United States, is in custody
by authority of the United States. If a writ of habeas corpus is issued
by a state court, the SJA or legal adviser will seek guidance from
Litigation Division.
(e) Foreign court orders. A foreign court should not inquire into
the legality of restraint of a person held by U.S. military authority.
If a foreign court issues any process in the nature of a writ of habeas
corpus, the SJA or legal adviser will immediately report the matter to
the appropriate U.S. forces commander and to Litigation Division.
Sec. 516.21 Litigation against government contractors.
(a) General. A contract might require that the government reimburse
a contractor (or subcontractor) for adverse judgments or litigation
expenses. Unless a contractor or subcontractor facing a lawsuit
requests representation by DOJ, the Army presumes the contractor will
obtain private counsel to defend the case. If the contract so allows,
however, the contractor may request and HQDA may recommend that DOJ
represent the contractor if it is in the best interests of the United
States.
(b) Actions by SJA or legal adviser. If a contractor or
subcontractor faces litigation and the underlying contract with the
government requires reimbursement for adverse judgments or costs of the
litigation, the SJA or legal adviser, through the contracting officer,
should determine if the contractor desires representation by DOJ. If
so, the contractor or authorized agent will sign a request for
representation. (See Figure D-3, Appendix G, of this part.) The SJA or
legal adviser will determine whether, in his opinion, representation by
DOJ should be granted. He will prepare a memorandum to support his
recommendation, especially concerning any issue regarding the
government's obligation to reimburse the contractor under the contract.
The SJA or legal adviser will forward his memorandum, along with the
contractor's request, to Litigation Division.
(c) Actions by Litigation Division. The Chief, Litigation Division,
will evaluate the submission and decide if it is in the Army's best
interest that the request be granted. He will prepare a memorandum
supporting his decision and send the packet to DOJ. The Chief's
decision constitutes the final DA position on the matter. If DOJ grants
the contractor's request, the Chief, Litigation Division, will ensure
that the contractor is notified through the SJA or legal adviser and
the contracting officer.
(d) Private Counsel. A contractor represented by DOJ may ask that
private counsel assist the DOJ attorney in the litigation. The DOJ
attorney will remain in control of the litigation, and the fees for
private counsel will not be reimbursable except under unusual
circumstances. The contractor must seek both DOJ and DA approval to
employ private counsel when DOJ representation has been granted. Even
if DOJ and DA grant authority to employ private counsel, the
contracting officer will determine whether a contractor will be
reimbursed under the contract for private counsel.
(e) Settlement. The contractor, unless the contract specifies
otherwise, will ultimately decide whether to compromise a suit.
Reimbursement under the contract is determined by the contracting
officer, with the advice of his attorney.
Sec. 516.22 Miscellaneous reporting requirements.
SJAs or legal advisers will comply with the directives cited below
concerning actual or prospective litigation involving the following
types of cases:
(a) Taxation.
(1) Contractor transactions. (FAR and DFARS, 48 CFR parts 29 and
229).
(2) Army and Air Force Exchange Service (AAFES) activities. (AR 60-
20).
(3) Purchase or sale of alcoholic beverages. (AR 215-2).
(4) Nonappropriated fund and related activities. (AR 215-1).
(b) Tort and contract claims, insurance and litigation involving
nonappropriated fund activities. (AR 215-1).
(c) Annexation of Army lands. (AR 405-25).
(d) Communications, transportation, and utility services
administrative proceedings. Any contracting officer or other Army
official responsible for the acquisition of communications,
transportation, utilities (gas, electric, water and sewer), or military
mail services, who becomes aware of any action or proceeding of
interest to the Army, will promptly refer the matter to the SJA or
legal adviser, who will take the actions prescribed in Sec. 516.17 of
this part. Examples of actions requiring referral follow: new or
amended rates, regulations, or conditions of service; applications for
authority to discontinue or initiate service; changes in
electromagnetic patterns causing adverse communications interference;
or, zoning proposals affecting historic or aesthetic preservation. In
addition, the SJA or legal adviser will transmit the following to
Regulatory Law Office:
(1) The names and addresses of any parties intervening and the
substance of their positions.
(2) Names of government users affected by any change.
(3) Copy of any proposed rates, rules, or regulations.
(4) A recommendation whether the Army should intervene in the
action or proceeding. If intervention is recommended, provide a
memorandum to support the recommendation.
(e) Legal proceedings overseas. Foreign communications,
transportation, and utility service proceedings need not be reported.
In other legal proceedings instituted in a foreign country, the SJA or
legal adviser will take the actions prescribed in Sec. 516.17 of this
part.
(f) Maritime claims. Admiralty and maritime claims within the
purview of Chapter 8, AR 27-20, which have been investigated and
processed under AR 55-19 or other applicable regulations, will be
referred to USARCS.
(g) Army and Air Force Exchange Service litigation. The SJA or
legal adviser will send a copy of all documents relating to litigation
against AAFES to General Counsel, AAFES, P.O. Box 660202, Dallas, TX
75266-0202.
(h) Bankruptcy. Reports of bankruptcy or insolvency proceedings
shall be made in accordance with this regulation and AR 37-103.
Sec. 516.23 Litigation reports.
The SJA or legal adviser will prepare a litigation report when
directed by HQDA. The report will contain the following sections:
Statement of Facts; Setoff or Counterclaim; Responses to Pleadings;
Memorandum of Law; Witness List; and, Exhibits.
(a) Statement of Facts. Include a complete statement of the facts
upon which the action and any defense thereto are based. Where
possible, support facts by reference to documents or witness
statements. Include details of previous administrative actions, such as
the filing and results of an administrative claim. If the action is
predicated on the Federal Tort Claims Act, include a description of the
plaintiff's relationship to the United States, its instrumentalities,
or its contractors. Also include a statement whether an insurance
company or other third party has an interest in the plaintiff's claim
by subrogation or otherwise and whether there are additional claims
related to the same incident.
(b) Setoff or Counterclaim. Discuss whether setoff or counterclaim
exists. If so, highlight the supportive facts.
(c) Responses to Pleadings. Prepare a draft answer or other
appropriate response to the pleadings. (See Figure C-1, to this part).
Discuss whether allegations of fact are well-founded. Refer to evidence
that refutes factual allegations.
(d) Memorandum of Law. Include a brief statement of the applicable
law with citations to legal authority. Discussions of local law, if
applicable, should cover relevant issues such as measure of damages,
scope of employment, effect of contributory negligence, or limitations
upon death and survival actions. Do not unduly delay submission of a
litigation report to prepare a comprehensive memorandum of law.
(e) Potential witness information. List each person having
information relevant to the case and provide an office address and
telephone number. If there is no objection, provide the individual's
social security account number, home address, and telephone number.
This is ``core information'' required by Executive Order No. 12778
(Civil Justice Reform). Finally, summarize the information or potential
testimony that each person listed could provide.
(f) Exhibits.
(l) Attach a copy of all relevant documents. This is ``core
information'' required by Executive Order No. 12778 (Civil Justice
Reform). Unless otherwise directed by HQDA, each exhibit should be
tabbed and internally paginated. References to exhibits in the
litigation report should be to page numbers of particular exhibits.
(2) Copies of relevant reports of claims officers, investigating
officers, boards or similar data should be attached, although such
reports will not obviate the requirement for preparation of a complete
litigation report.
(3) Prepare an index of tabs and exhibits.
(4) Where a relevant document has been released pursuant to a FOIA
request, provide a copy of the response, or otherwise identify the
requestor and the records released.
(g) Distribution and number of copies. Unless HQDA directs
otherwise, SJAs or legal advisers will mail (first class) an original
and one copy of the litigation report to the responsible HQDA office
(See Sec. 516.15 of this part) and one copy to the U.S. Attorney's
Office handling the case. If possible, record the litigation report
onto a magnetic diskette, using either WordPerfect, Enable, or ACSII,
and send it to Litigation Division.
Sec. 516.24 Preservation of evidence.
Because documents needed for litigation or administrative
proceedings are subject to routine destruction, the SJA or legal
adviser will ensure that all relevant documents are preserved.
Sec. 516.25 DA Form 4.
(a) General. The DA Form 4 (See Figure C-2, Appendix G, of this
part) is used to authenticate Army records or documents. Documents
attached to a properly prepared and sealed DA Form 4 are self-
authenticating. (See Fed. R. Evid. 902).
(b) Preparation at the installation level. A DA Form 4 need not be
prepared until the trial attorney presenting the government's case
identifies documents maintained at the installation level which he will
need at trial. Once documents are identified, the custodian of the
documents will execute his portion of the DA Form 4. (See Figure C-2,
Appendix G, of this part). The custodian certifies that the documents
attached to the DA Form 4 are true copies of official documents.
Documents attached to each form should be generally identified; each
document need not be mentioned specifically. Only the upper portion of
the form should be executed at the local level.
(c) Actions at HQDA. Upon receipt of the DA Form 4 with documents
attached thereto, HQDA will affix a ribbon and seal and deliver it to
the Office of the Administrative Assistant to the Secretary of the
Army. That office will place the official Army seal on the packet.
Sec. 516.26 Unsworn declarations under penalty of perjury.
(a) General. Under the provisions of 28 U.S.C. l746, whenever any
matter is required or permitted to be established or proven by a sworn
statement, oath or affidavit, such matter may also be established or
proven by an unsworn written declaration under penalty of perjury.
Because such declaration does not require a notary or other official to
administer oaths, individuals preparing statements for use in
litigation should consider using this format. (See Figure C-3, Appendix
G, of this part).
(b) When executed within the United States. Place the following at
the end of the witness statement:
I declare under penalty of perjury that the foregoing is true
and correct. (28 U.S.C. 1746).
Executed on
----------------------------------------------------------------------
(Date) (Signature)
(c) When executed outside the United States. Place the following
at the end of the witness statement:
I declare under penalty of perjury under the laws of the United
States of America that the foregoing is true and correct. (28 U.S.C.
1746).
Executed on
----------------------------------------------------------------------
(Date) (Signature)
Subpart D--Individual Liability
Sec. 516.27 Scope.
This subpart guidance when DA personnel, as a result of the
performance of their official duties, are either sued in their personal
capacity, or are charged in a criminal proceeding. Examples of civil
actions alleging individual liability include the following: a medical
malpractice lawsuit against health care providers; suits resulting from
motor vehicle accidents; constitutional torts; or, common law torts
such as assault, libel, or intentional infliction of emotional
distress. Likewise, state or Federal criminal charges can arise from
the performance of official duties, including environmental crimes or
motor vehicle accidents.
Sec. 516.28 Policy.
(a) General. Commanders, supervisors, and SJAs or legal advisers
will give highest priority to compliance with the requirements of this
chapter with regard to current or former DA personnel who face criminal
charges or civil litigation in their individual capacity as a result of
performance of their official duties.
(b) DOJ policy on representation. If in the best interest of the
United States, upon request of the individual concerned, and upon
certification by his agency that he was acting within the scope of his
employment, DOJ may represent present and former DA personnel sued
individually as a result of actions taken within the scope of their
employment. Representation can be declined for a variety of reasons,
including but not limited to the following: the employee was not acting
within the scope of his office; there is a conflict of interest; or,
actions were not taken in a good faith effort to conform to law.
Sec. 516.29 Federal statutes and regulations.
(a) Federal Tort Claims Act (FTCA). (28 U.S.C. 1346(b), 2671-2680).
A waiver of sovereign immunity which, with certain exceptions, makes
the United States liable for tort claims in the same manner as a
private individual.
(b) Federal Employees Liability Reform and Tort Compensation Act of
l988 (FELRTCA or the Westfall Act, Pub. L. No. 100-694, 102 Stat. 4563
(1988) (codified at and amending 28 U.S.C. 2671, 2674, 2679). FELRTCA,
by amending the Federal Tort Claims Act, makes the FTCA the exclusive
remedy for common law tort claims arising from actions taken by Federal
employees acting within the scope of employment. The law was passed to
eliminate problems caused by Westfall v. Erwin, 484 U.S. 292 (1988).
(c) 10 U.S.C. 1089 (Defense of certain suits arising out of medical
malpractice). This provision, commonly referred to as the Gonzales Act,
makes the FTCA the exclusive remedy for suits alleging medical
malpractice against a military health care provider.
(d) 28 CFR 50.15 (Representation of Federal officials and employees
by Department of Justice attorneys [. . .] in civil, criminal, and
congressional proceedings in which Federal employees are sued,
subpoenaed, or charged in their individual capacities). These DOJ
regulations set out the policy and procedures for requesting
representation in individual liability cases. See also 28 CFR part 15
(Defense of Certain Suits Against Federal Employees, etc.).
(e) 28 CFR 50.16 (Representation of Federal employees by private
counsel at Federal expense).
Sec. 516.30 Procedures for obtaining certification and DOJ
representation.
(a) SJA or legal adviser procedures. When an SJA or legal adviser
learns of a criminal charge or of a lawsuit alleging individual
liability against DA personnel as a result of performance of official
duties, he will take the following actions:
(1) Immediately notify Litigation Division and the appropriate U.S.
Attorney and FAX or express deliver copies of process and pleadings to
each office. Where time for response is limited, request that the U.S.
Attorney either petition the court for an extension of time, or provide
temporary counsel and representation pending formal approval.
(2) Investigate whether the employee was acting within the scope of
his office or employment. Obtain, if possible, statements from the
defendant, supervisors, and witnesses.
(3) Advise the individual defendant of the rights and conditions
set out in 28 CFR 50.15, which include the following:
(i) His right to request representation by a DOJ attorney and, in
appropriate cases, certification that he was acting within the scope of
employment. (See 28 U.S.C. 2679; 28 CFR 50.15).
(ii) The right to request private counsel at government expense,
subject to the availability of funds. (See 28 CFR 50.16).
(iii) That the United States is not obligated to pay or indemnify
defendant for any judgment rendered against him in his individual
capacity.
(4) If the defendant desires certification or DOJ representation,
have him sign a request. (See Figure D-1, Appendix G, of this part).
Obtain a signed scope of employment statement from the defendant's
supervisor. (Figure D-2, Appendix G, of this part).
(5) Prepare a report with, at a minimum, the following information:
facts surrounding the incident for which defendant is being sued and
those relating to scope of employment; the SJA's or legal adviser's
conclusions concerning scope of employment; and, a recommendation
whether certification by the Attorney General or representation by a
DOJ attorney should be granted.
(6) In cases involving National Guard personnel, address also the
following: whether defendant was acting in a state (Title 32 U.S.C.) or
Federal (Title 10 U.S.C.) capacity during relevant periods (include
orders); if defendant was acting under state authority, is it
nevertheless in the interest of the United States to represent the
individual; any impact on policies or practices of DA, the National
Guard Bureau, or DOD; whether the relief requested can be granted only
by a Federal officer or agency; and, whether Federal law or regulation
required actions by state officials.
(7) Send the report, request for representation, and scope of
employment statements to Chief, Litigation Division.
(b) Chief, Litigation Division, procedures. The Chief, Litigation
Division, will review the report and evidence regarding representation
and scope of employment and will determine whether certification and
representation are appropriate. He will send his recommendation to the
appropriate U.S. Attorney or office within DOJ. The Chief, Litigation
Division, will notify the defendant of DOJ's decision.
Sec. 516.31 Private counsel at government expense.
(a) General. DA personnel, sued in their individual capacity or
facing criminal charges as a result of performance of official duties,
have no right to employ a private sector counsel at government expense
or to expect reimbursement for the same. For proceedings in the United
States, a request for employment of counsel at government expense may
be approved by DOJ, contingent among other things upon availability of
funds and a determination that employment of private counsel at
government expense is in the best interests of the United States. (See
28 CFR 50.16). Special rules apply in overseas areas. (See paragraph
(e) of this section).
(b) Individual request procedures. The individual will prepare a
request that private counsel be employed for him at government expense.
The request must also contain the following statement: ``I understand
that the United States is not required to employ private counsel on my
behalf, and that I may be responsible for expenses incurred prior to
proper authorization by the Department of the Army or the Department of
Justice.''
(c) Supervisory and legal adviser procedures. The request will be
submitted through the individual's supervisors, who will make a
recommendation and forward the packet to the local SJA or legal
adviser. The SJA or legal adviser will prepare his own recommendation
and forward the matter to Litigation Division.
(d) Chief, Litigation Division, procedures. If the Chief,
Litigation Division, determines that the request for private counsel is
meritorious, he will prepare an appropriate recommendation and forward
the packet to Civil Division, DOJ, for final approval.
(e) Special actions in foreign countries. Employment of private
counsel in foreign proceedings is governed by AR 27-50 (Status of
Forces Policies, Procedures, and Information). Under the authority of
10 U.S.C. 1037, soldiers, as well as employees or those accompanying
the armed forces overseas, may be granted individual counsel in civil
and criminal proceedings, under the criteria of AR 27-50.
Sec. 516.32 Requests for indemnification.
(a) Policy. An individual liable for a judgment rendered against
him in his individual capacity has no right to reimbursement from DA.
DA will consider, however, a request for indemnification from DA
personnel where conduct within the scope of official duties has
resulted in personal liability and indemnification is in the best
interests of the United States. Indemnification is strictly contingent
upon an appropriation to pay the judgment, as well as availability of
such funds.
(b) Individual request procedures. An individual against whom an
adverse judgment has been rendered may request indemnification. The
request must include, at a minimum, the following: how the employee was
acting within the scope of his employment; whether the requestor has
insurance or any other source of indemnification; and, how
reimbursement is in the best interests of the United States. The
request must also contain the following statements: ``I understand that
acceptance of this request for indemnification for processing by DA
does not constitute an acceptance of any obligation to make such a
payment. I also understand that payment is contingent on availability
of funds and that it will only be made if such is determined to be in
the best interests of the United States.'' The individual should attach
a copy of relevant documents, for example, court's opinion, judgment,
and other allied papers.
(c) Supervisory and SJA procedures. The request for indemnification
will be submitted through supervisory channels to the local SJA or
legal adviser. Each supervisor will make a recommendation on the
propriety of reimbursement.
(d) Chief, Litigation Division, procedures. Requests for
indemnification will be forwarded to Chief, Litigation Division. The
Chief, Litigation Division, will examine the submission and, after
consultation with DOJ or other agencies, forward the packet with his
recommendation to the Army General Counsel. The General Counsel will
obtain a final decision by the Secretary of the Army or his designee on
the matter. There is no administrative appeal of the Secretary's (or
his designee's) decision.
Subpart E--Legal Proceedings Initiated by the United States Medical
Care and Property Claims
Sec. 516.33 General.
(a) Authorities.
(1) Federal Medical Care Recovery Act (42 U.S.C. 2651). The act
provides for the recovery of medical care expenses incurred because of
a tortfeasor's actions.
(2) Federal Claims Collection Act (31 U.S.C. 3711). The act
provides for the collection of claims for money or property arising
from the activities of Federal agencies.
(3) Third-party Collection Program (10 U.S.C. 1095). The statute
provides for collection of reasonable costs of health-care services,
provided in facilities of the uniformed services to covered
beneficiaries, from private insurers or third-party payers. In
accordance with DOD Instruction 6010.15, ``Third Party Collection (TPC)
Program,'' 7 March 1991, the authority to settle or waive a DOD claim
under the act is delegated to TJAG or to his designee.
(4) Executive Order No. 12778, (56 FR 55195; 3 CFR, 1991 Comp. p.
359), Civil Justice Reform. This order establishes several requirements
on Federal agencies involved in litigation or contemplating filing an
action on behalf of the United States.
(5) AR 27-20, Claims. Chapter l4 (Affirmative Claims) contains
comprehensive guidance for Recovery Judge Advocates (RJAs) in the
administrative determination, assertion, collection, settlement, and
waiver of claims in favor of the U.S. for property damage and for
medical care claims.
(b) Duties and Procedures. In accordance with Chapter 14, AR 27-20,
Commander, USARCS, has supervisory responsibility over the
administrative processing of property and medical care claims by RJAs.
The Commander, U.S. Army Health Services Command (HSC), has supervisory
responsibility over the Third Party Collection Program (TPCP). The HSC
TPCP Implementation Plan effects DOD Instruction 6010.15 and
establishes procedures for processing TPC claims. Litigation Division,
in conjunction with DOJ and U.S. Attorneys, is responsible for
pursuing, through litigation, claims not resolved administratively. DOJ
is ultimately responsible for initiating litigation for the United
States. (28 U.S.C. 515).
(c) Assertion of claims on behalf of the United States by private
attorneys. The Army incurs potentially recoverable expenses when it
provides medical care to soldiers or dependents injured by tortfeasors
(for example, a soldier is hospitalized after an automobile accident).
When injured personnel employ a private attorney to sue the tortfeasor,
it may be in the Government's best interests to enter into an agreement
with the private attorney to include the Army's medical care claim.
(d) Statute of limitations. There is a three year statute of
limitations for actions in favor of the U.S. for money damages founded
upon tort. (28 U.S.C. 2415(b)). Limitations periods can vary, however,
depending upon the theory of liability and the jurisdiction involved.
RJAs must be alert to the applicable period of limitations. A case
referred for litigation should arrive at Litigation Division at least 6
months before the expiration of the limitations period.
(e) Reporting of recoveries. Amounts recovered through litigation
will be reported to USARCS by Tort Branch, Litigation Division, or,
where referred directly to a U.S. Attorney or the Nationwide Central
Intake Facility (NCIF), by the responsible RJA.
Sec. 516.34 Referral of medical care and property claims for
litigation.
(a) Criteria for referral. The RJA will forward the claims file and
a litigation report (See Sec. 516.35 of this part) through USARCS to
Litigation Division when the claim has not been resolved
administratively and any of the following conditions exist:
(1) The claim exceeds $5,000;
(2) It involves collection from the injured party or his attorney;
(3) The claim raises an important question of policy; or,
(4) There is potential for a significant precedent.
(b) Alternative methods. When none of the conditions cited in the
preceding subparagraph are present, the RJA may refer the claim
directly to the U.S. Attorney for the district in which the prospective
defendant resides. Similar property claims may be referred through
USARCS to DOJ's Nationwide Central Intake Facility (NCIF) rather than
directly to the U.S. Attorney. Notice of all such referrals shall be
provided through USARCS to Tort Branch, Litigation Division. The RJA
should be ready to provide support to the U.S. Attorney if requested.
(c) Closing Files. A file referred directly to the U.S. Attorney
will be closed if the U.S. Attorney determines further action is
unwarranted. If the RJA disagrees, the file should be forwarded with
the RJA's recommendation through USARCS to Litigation Division.
Sec. 516.35 Preparation of claims for litigation.
(a) General. In preparing a referral for litigation the RJA will
ensure the file contains at least the following:
(1) A litigation report (See Sec. 516.23 of this part) that
demonstrates a factual basis for the claim and a theory of recovery
under applicable state law. (See Fed. R. Civ. P. 11)
(2) Copies of all medical records and bills reflecting the
reasonable value of the medical care furnished to the injured party,
including DA Form 2631-R (Medical Care-Third Party Liability
Notification), and DA Form 3154 (MSA Invoice and Receipt). These
documents should be authenticated as necessary on a DA Form 4.
(3) Copies of all documents necessary to establish the value of
lost or damaged property.
(b) Transmittal letter. The letter of transmittal referring the
claim for litigation should briefly summarize the facts giving rise to
the claim and the collection actions previously taken by the Army and
the injured party.
Assertion of Other Claims
Sec. 516.36 Referral to Litigation Division.
(a) General. The majority of cases filed on behalf of the United
States will fall under this subpart E. All other civil cases which
cannot be resolved administratively or by direct referral to DOJ will
be forwarded through channels to Litigation Division with a litigation
report. (See Sec. 516.23 of this part).
(b) Government contractors. It may be in the Government's best
interest to authorize a Government contractor, whose contract provides
for the reimbursement of necessary legal expenses, to employ private
counsel to initiate legal proceedings against a third party. To obtain
authorization to employ private counsel in such instances the
contractor should follow the procedures in Sec. 516.21(c) of this part.
Sec. 516.37 Proceedings to repossess Government real property or
quarters or to collect delinquent rent.
(a) General. U.S. Attorneys are authorized to accept a Federal
agency's request for the following purposes: to initiate an action to
recover possession of real property from tenants, trespassers, and
others; to enjoin trespasses on Federal property; and, to collect
delinquent rentals or damages for use and occupancy of real property
for amounts less than $200,000.
(b) Procedures. When eviction or an action to collect delinquent
rent is necessary, the SJA or legal adviser will notify General
Litigation Branch, Litigation Division, of the situation. If approved
by Litigation Division, the SJA or legal adviser may ask the U.S.
Attorney to file suit. A copy of the complaint will be sent to
Litigation Division. DOJ can take action to evict the occupants for
violation of the terms of occupancy and collect delinquent rent or
other charges. Once the matter has been referred to the U.S. Attorney,
payments for rent should be sent to the U.S. Attorney. (See AR 210-50,
chap 2.)
Subpart F--Environmental Litigation
Sec. 516.38 Scope.
This subpart contains guidance, policies, and procedures applicable
to all environmental and natural resources civil litigation and
administrative proceedings involving missions and functions of DA, its
major and subordinate commands, all installations presently or
previously managed by DA, and all other sites or issues in which DA has
a substantial interest. In this chapter, ``litigation'' includes civil
administrative proceedings.
Sec. 516.39 Duties and procedures.
(a) Water rights. Environmental Law Division will conduct direct
liaison with DOJ and will represent DA in State and Federal litigation
relating to availability and allocation of surface and ground water and
the establishment and protection of water rights for Army military
installations and activities. This will include litigation in State
general adjudications of water rights under the McCarran Amendment, 43
U.S.C. 666, for Army military installations and activities. Such
litigation relating solely to COE civil works projects or activities
will be handled by attorneys under the technical supervision of the
Chief Counsel, COE. With respect to any general adjudication which
could affect the civil works or real property functions of COE, The
Judge Advocate General, acting through the Chief, Environmental Law
Division, and Chief Counsel, COE, will jointly determine which office
should maintain primary direct liaison with DOJ and will scope and
execute appropriate coordination with each other and with the General
Counsel with respect to that litigation.
(b) Navigable waters. The Chief Counsel, COE, will conduct direct
liaison with DOJ and represent DA in civil litigation involving
activities in or across navigable waters of the United States or other
activities regulated under the Rivers and Harbors Act of 1899, 33
U.S.C. 401 et seq.
(c) Waters of the United States. The Chief Counsel, COE, will
conduct direct liaison with DOJ and represent DA in civil litigation
involving The Clean Water Act section 404 (See 33 U.S.C. 1344) permit
authority of COE over the discharge of dredged or fill material into
waters of the United States.
(d) Enforcement. Environmental Law Division will conduct direct
liaison with DOJ and represent DA in all civil litigation involving
citizen or State enforcement of applicable State, Federal and local
requirements respecting the control or abatement of pollution and
involving the management of hazardous wastes, with respect to the
missions and functions of, and Federal facilities owned or controlled
by, DA, except for civil works facilities.
(e) Environmental response.
(1) Except as provided in (a)(2) of this section. Environmental Law
Division will conduct direct liaison with DOJ and represent DA in all
civil litigation seeking declaratory or injunctive relief or involving
claims of Army liability for the costs of response at Federal
facilities currently owned or controlled by DA and at other sites where
the Army is a potentially responsible party.
(2) The Chief Counsel, COE, will conduct direct liaison with DOJ
and represent DA in all civil litigation seeking declaratory or
injunctive relief or involving claims of Army liability for the costs
of response at civil works facilities, at former defense sites or at
other sites where the Army is a potentially responsible party due to
the response actions of the COE or its contractors.
(f) Fish and Wildlife, and Plants. Environmental Law Division will
conduct direct liaison with DOJ and represent DA in civil litigation
involving citizen or State enforcement of applicable State, Federal,
and local laws governing conservation of plant, fish, and wildlife
resources at Federal facilities owned or controlled by DA, except that
such litigation relating solely to the real estate, civil works,
navigation and Clean Water Act section 404 (See 33 U.S.C. 1344) permit
functions and activities of the COE will be handled by attorneys under
the technical supervision of the Chief Counsel, COE.
(g) Toxic torts.
(1) Except as otherwise provided in this part, Environmental Law
Division will conduct direct liaison with DOJ and represent DA in all
civil litigation involving claims of tort liability for exposure to
environmental contamination emanating from Federal facilities owned or
controlled by DA.
(2) Litigation Division will conduct liaison with DOJ and represent
DA in civil litigation involving claims of tort liability for singular
and discrete incidents of exposure to environmental contamination
emanating from any Federal facility owned or controlled by DA.
(3) The Chief Counsel, COE, will conduct direct liaison with DOJ
and will represent DA in civil litigation involving claims of tort
liability for exposure to environmental contamination (including
singular and discrete incidents) emanating from any civil works
activities under the jurisdiction of the Secretary of the Army.
(4) The Chief Counsel, COE, and Chief, Environmental Law Division,
will confer and jointly determine which office will conduct direct
liaison with DOJ and represent DA in civil litigation involving all
other claims of toxic tort liability.
Subpart G--Release of Information and Appearance of Witnesses Scope
Sec. 516.40 General.
(a) Introduction. This subpart implements DOD Directive 5405.2 (See
Appendix C to this part and 32 CFR part 97). It governs the release of
official information and the appearance of present and former DA
personnel as witnesses in response to requests for interviews, notices
of depositions, subpoenas, and other requests or orders related to
judicial or quasi-judicial proceedings. Requests for records, if not in
the nature of legal process, should be processed under AR 25-55 (The
Department of the Army Freedom of Information Act Program) or AR 340-21
(The Army Privacy Program). This subpart pertains to any request for
witnesses, documents, or information for all types of litigation,
including requests by private litigants, requests by State or U.S.
attorneys, requests by foreign officials or tribunals, subpoenas for
records or testimony, notices of depositions, interview requests, civil
cases, criminal proceedings, private litigation, or litigation in which
the United States has an interest.
(b) Definitions. (See Appendix F to this part).
Sec. 516.41 Policy.
(a) General Rule. Except as authorized by this subpart, present or
former DA personnel will not disclose official information (See
Appendix F--Glossary) in response to subpoenas, court orders, or
requests.
(b) Exception. Present or former DA personnel may disclose official
information if they obtain the written approval of the appropriate SJA,
legal adviser, or Litigation Division.
(c) Referral to deciding official. If present or former DA
personnel receive a subpoena, court order, request for attendance at a
judicial or quasi-judicial proceeding, or request for an interview
related to actual or potential litigation, and it appears the subpoena,
order, or request seeks disclosures described in a above, the
individual should immediately advise the appropriate SJA or legal
adviser. If the SJA or legal adviser cannot informally satisfy the
subpoena, order, or request in accordance with Secs. 516.43 through
516.50 of this subpart, he should consult with Litigation Division.
(d) Requesters' responsibilities. Individuals seeking official
information must submit, at least 14 days before the desired date of
production, a specific written request setting forth the nature and
relevance of the official information sought. (Requesters can be
referred to this Subpart G). Subject to Sec. 516.47(a), present and
former DA personnel may only produce, disclose, release, comment upon,
or testify concerning those matters specified in writing and properly
approved by the SJA, legal adviser, or Litigation Division. (See United
States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951)).
(e) Litigation in which the United States has an interest. If a
subpoena, order, or request relates to litigation in which the United
States has an interest and for which litigation responsibility has not
been delegated, the SJA or legal adviser will coordinate with
Litigation Division under Sec. 516.42.
(f) Motions to stay or quash subpoenas. A subpoena should never be
ignored, and an SJA or legal adviser should seek assistance from
Litigation Division or the U.S. Attorney's office whenever necessary.
If a response to a subpoena or order is required before a release
determination can be made or before Litigation Division or the U.S.
Attorney can be contacted, the SJA or legal adviser will do the
following:
(1) Furnish the court or tribunal a copy of this regulation (32 CFR
part 516, Subpart G) and applicable case law (See United States ex.
rel. Touhy v. Ragen, 340 U.S. 462 (1951));
(2) Inform the court or tribunal that the requesting individual has
not complied with this Chapter, as set out in 32 CFR 97 & 516, or that
the subpoena or order is being reviewed;
(3) Seek to stay the subpoena or order pending the requestor's
compliance with this chapter or final determination by Litigation
Division; and,
(4) If the court or other tribunal declines to quash or stay the
subpoena or order, inform Litigation Division immediately so a decision
can be made whether to challenge the subpoena or order. If Litigation
Division decides not to challenge the subpoena or order, the affected
personnel will comply with the subpoena or order. If Litigation
Division decides to challenge the subpoena or order, it will direct the
affected personnel to respectfully decline to comply with the subpoena
or order. (See United States ex. rel. Touhy v. Ragen, 340 U.S. 462
(1951)).
(g) Classified or sensitive information. Only Litigation Division
may authorize the release of official information or appearance of DA
personnel as witnesses in litigation involving terrorism, espionage,
nuclear weapons, or intelligence sources and methods.
(h) Requests for Inspector General records or testimony. IG
records, and information obtained through performance of IG duties, are
official information under the exclusive control of the Secretary of
the Army. (See AR 20-l, Chapter 3.) IG records frequently contain
sensitive official information that may be classified or obtained under
guarantees of confidentiality. When justification exists, DA attorneys
will seek court protection from disclosure of IG records and
information. No DA personnel will release IG records or disclose
information obtained through performance of IG duties without the
approval of The Secretary of the Army, The Inspector General, TIG Legal
Advisor, or Chief, Litigation Division. When IG personnel receive a
subpoena, court order, request for attendance at a judicial or quasi-
judicial proceeding, or a request for an interview which the IG
reasonably believes is related to actual or potential litigation
concerning IG records or related information, they should immediately
notify the Inspector General Legal Adviser or the Chief, Litigation
Division. IG personnel will follow the guidance of this subpart
concerning actions to be taken regarding disclosure and testimony.
Sec. 516.42 Reference to HQDA.
(a) General. If the SJA or legal adviser is unable to resolve the
matter, it will be referred for approval or action by Litigation
Division under this chapter, by the most expeditious means, to General
Litigation Branch, Litigation Division, with the following exceptions:
(1) Those involving a case assigned to another branch of Litigation
Division will be submitted to that branch (Appendix B to this part).
(2) Those involving affirmative litigation (for example, medical
care recovery or Army property damage or loss cases) under subpart E
will be submitted to Tort Branch.
(3) Those involving patents, copyrights, privately developed
technical information, or trademarks will be submitted to Intellectual
Property Law Division.
(4) Those involving taxation will be submitted to Contract Law
Division.
(5) Those involving communication, transportation, or utility
service proceedings will be submitted to the Regulatory Law Office.
(6) Those involving environmental matters will be submitted to the
Environmental Law Division.
(7) Those involving contract appeals cases before the ASBCA will be
submitted to the Contract Appeals Division.
(8) Those involving procurement fraud, including Qui Tam cases,
will be submitted to the Procurement Fraud Division.
(b) Information to be submitted. When referring matters pursuant to
paragraph (a) of this section, the following data should be provided:
(1) Parties (named or prospective) to the proceeding, their
attorneys, and case number, where appropriate.
(2) Party making the request (if a subpoena, indicate moving party)
and his attorney.
(3) Name of tribunal in which the proceeding is pending.
(4) Nature of the proceeding.
(5) Date of receipt of request or date and place of service of
subpoena.
(6) Name, grade, position, and organization of person receiving
request or served with subpoena.
(7) Date, time, and place designated in request or subpoena for
production of information or appearance of witness.
(8) Nature of information sought or document requested, and place
where document is maintained.
(9) A copy of each document requested. Contact the appropriate
office at HQDA if this would be burdensome and unnecessary to a
decision whether to release, redact, or withhold a particular document.
(10) Name of requested witness, expected testimony, requested
appearance time and date, and whether witness is reasonably available.
(11) Analysis of the problem with recommendations.
Release of Records in Connection With Litigation
Sec. 516.43 Release of Army and other agency records.
(a) Preservation of originals. To preserve the integrity of DA
records, DA personnel will submit properly authenticated copies rather
than originals of documents or records for use in legal proceedings,
unless directed otherwise by Litigation Division. (See 28 U.S.C. 1733.)
(b) Authentication of copies. Copies of DA records approved for
release can be authenticated for introduction in evidence by use of DA
Form 4. (See Sec. 516.25 for instructions.)
(1) Records maintained in U.S. Army Engineer Districts and
Divisions will be forwarded to HQDA(CECC-K), WASH DC 20314-1000.
(2) All other records will be forwarded to the appropriate office
at HQDA (See Sec. 516.42).
(c) Fees and charges. AR 37-60 prescribes the schedule of fees and
charges for searching, copying, and certifying Army records for release
in response to litigation-related requests.
(d) Release of records of other agencies. Normally an individual
requesting records originating in agencies outside DA (that is, FBI
reports, local police reports, civilian hospital records) that are also
included in Army records should be advised to direct his inquiry to the
originating agency.
Sec. 516.44 Determination of release authorization.
(a) Policy. DA policy is to make official information reasonably
available for use in Federal and state courts and by other governmental
bodies unless the information is classified, privileged, or otherwise
protected from public disclosure.
(b) Releasability factors. In deciding whether to authorize release
of official information, the deciding official should consider the
following:
(1) Has the requester complied with DA policy governing the release
of official documents in Sec. 516.41(d) of this part.
(2) Is the request unduly burdensome or otherwise inappropriate
under the applicable court rules?
(3) Is the disclosure appropriate under the rules of procedure
governing the matter in which the request arose?
(4) Would the disclosure violate a statute, executive order,
regulation, or directive?
(5) Is the disclosure appropriate under the relevant substantive
law concerning privilege?
(6) Would the disclosure reveal information properly classified
pursuant to the DOD Information Security Program under AR 380-5,
unclassified technical data withheld from public release pursuant to 32
CFR Sec. 250, or other matters exempt from unrestricted disclosure?
(7) Would disclosure interfere with ongoing enforcement
proceedings, compromise constitutional rights, reveal the identity of
an intelligence source or confidential informant, disclose trade
secrets or confidential commercial or financial information, or,
otherwise be inappropriate under the circumstances?
(8) Would the disclosure violate any person's expectation of
confidentiality or privacy?
Sec. 516.45 Records determined to be releasable.
If the deciding official, after considering the factors set forth
in Sec. 536.44, determines that all or part of requested official
records are releasable, copies of the records should be furnished to
the requester.
Sec. 516.46 Records determined not to be releasable.
(a) General. If the deciding official, after considering the
factors in Sec. 516.44, determines that all or part of requested
official records should not be released, he will promptly communicate
directly with the attorney or individual who caused the issuance of the
subpoena, order, or request and seek to resolve the matter informally.
If the subpoena or order is invalid, he should explain the basis of the
invalidity. The deciding official should also explain why the records
requested are privileged from release. The deciding official should
attempt to obtain the agreement of the requester to withdraw the
subpoena, order, or request or to modify the subpoena, order, or
request so that it pertains only to records which may be released. (See
Figure G-1, Appendix G, of this part.)
(b) Information protected by the Privacy Act.
(1) A subpoena duces tecum or other legal process signed by an
attorney or clerk of court for records protected by the Privacy Act, 5
U.S.C. 552a, does not justify the release of the protected records. The
deciding official should explain to the requester that the Privacy Act
precludes disclosure of records in a system of records without the
written consent of the subject of the records or ``pursuant to the
order of a court of competent jurisdiction.'' (See 5 U.S.C.
552a(b)(11)). An ``order of the court'' for the purpose of subsection 5
U.S.C. 552a(b)(11) is an order or writ requiring the production of the
records, signed by a judge or magistrate.
(2) Unclassified records otherwise privileged from release under 5
U.S.C. 552a may be released to the court under either of the following
conditions:
(i) The subpoena is accompanied by an order signed by a judge or
magistrate, or such order is separately served, that orders the person
to whom the records pertain to release the specific records, or that
orders copies of the records be delivered to the clerk of court, and
indicates that the court has determined the materiality of the records
and the nonavailability of a claim of privilege.
(ii) The clerk of the court is empowered by local statute or
practice to receive the records under seal subject to request that they
be withheld from the parties until the court determines whether the
records are material to the issues and until any question of privilege
is resolved.
(iii) Subpoenas for alcohol abuse or drug abuse treatment records
must be processed under 42 U.S.C. 290dd-3 and 290ee-3, and Public
Health Service regulations published at 42 CFR 2.1--2.67.
(iv) Upon request, SJAs and legal advisers may furnish to the
attorney for the injured party or the tortfeasor's attorney or
insurance company a copy of the narrative summary of medical care that
relates to a claim under Subpart E of this part. If additional medical
records are requested, only those that directly pertain to the pending
action will be furnished. If furnishing copies of medical records would
prejudice the cause of action, the matter will be reported to
Litigation Division.
(c) Referral to Litigation Division. If the SJA or legal adviser is
not able to resolve a request for Army records informally, he should
contact Litigation Division.
(1) Litigation Division may respond to subpoenas or orders for
records privileged from release by informing the local U.S. Attorney
about the subpoena and requesting that office file a motion to quash
the subpoena or a motion for a protective order. The records privileged
from release should be retained by the custodian pending the court's
ruling upon the government's motion.
(2) When a motion to quash or for a protective order is not filed,
or the motion is unsuccessful, and the appropriate DA official has
determined that no further efforts will be made to protect the records,
copies of the records (authenticated if necessary) will be submitted to
the court (or to the clerk of court) in response to the subpoena or
order.
(d) Classified and privileged materials. Requests from DOJ, U.S.
Attorneys, or attorneys for other governmental entities for records
which are classified or otherwise privileged from release will be
referred to Litigation Division. (See Sec. 516.41(g).
DA Personnel as Witnesses in Private Litigation
Sec. 516.47 Response to subpoenas, orders, or requests for witnesses.
(a) Policy. The involvement of present or former DA personnel in
private litigation is solely a personal matter between the witness and
the requesting party, unless one or more of the following conditions
apply:
(1) The testimony involves official information. (See Appendix F--
Glossary to this part).
(2) The witness is to testify as an expert.
(3) The absence of the witness from duty will seriously interfere
with the accomplishment of a military mission.
(b) Former DA personnel. Former DA personnel may freely respond to
requests for interviews and subpoenas except in instances involving
official information (paragraph (a)(1) of this section) or concerning
expert testimony prohibited by Sec. 516.49. In those instances, the
subject of the request or subpoena should take the action specified in
Secs. 516.41(c) and 516.42.
(c) Present DA personnel. Present DA personnel will refer all
requests for interviews and subpoenas for testimony in private
litigation through their supervisor to the appropriate SJA or legal
adviser.
(d) Discretion to testify. Any individual not wishing to grant an
interview or to testify concerning private litigation may seek the
advice of an Army attorney concerning the consequences, if any, of
refusal. Any individual not authorized to consult with Army counsel
should consult with private counsel, at no expense to the government.
Sec. 516.48 Official information.
(a) In instances involving Sec. 516.47(a)(1), the matter will be
referred to the SJA or legal adviser serving the organization of the
individual whose testimony is requested, or to HQDA pursuant to
Sec. 516.47(a). The deciding official will determine whether to release
the information sought under the principles established in Sec. 516.44.
If funding by the United States is requested, see Sec. 516.55(d).
(b) If the deciding official determines that the information may be
released, the individual will be permitted to be interviewed, deposed,
or to appear as a witness in court provided such interview or
appearance is consistent with the requirements of Secs. 516.49 and
516.50. (See, for example, Figure G-2, Appendix G, to this part). A JA
or DA civilian attorney should be present during any interview or
testimony to act as legal representative of the Army. If a question
seeks information not previously authorized for release, the legal
representative will advise the witness not to answer. If necessary to
avoid release of the information, the legal representative will advise
the witness to terminate the interview or deposition, or in the case of
testimony in court, advise the judge that DOD directives and Army
regulations preclude the witness from answering without HQDA approval.
Every effort should be made, however, to substitute releasable
information and to continue the interview or testimony.
Sec. 516.49 Expert witnesses.
(a) General rule. Present DA personnel will not provide, with or
without compensation, opinion or expert testimony either in private
litigation or in litigation in which the United States has an interest
for a party other than the United States. Former DA personnel will not
provide, with or without compensation, opinion or expert testimony
concerning official information, subjects, or activities either in
private litigation or in litigation in which the United States has an
interest for a party other than the United States. (See Figure G-3,
Appendix G of this part). An SJA or legal adviser is authorized to deny
a request for expert testimony, which decision may be appealed to
Litigation Division.
(b) Exception to the general prohibition. If a requester can show
exceptional need or unique circumstances, and the anticipated testimony
will not be adverse to the interests of the United States, Litigation
Division may grant special written authorization for present or former
DA personnel to testify as expert or opinion witnesses at no expense to
the United States. In no event may present or former DA personnel
furnish expert or opinion testimony in a case in which the United
States has an interest for a party whose interests are adverse to the
interests of the United States.
(c) Exception for AMEDD personnel. Members of the Army medical
department or other qualified specialists may testify in private
litigation with the following limitations (See Figure G-4, Appendix G,
of this part):
(1) The litigation involves patients they have treated,
investigations they have made, laboratory tests they have conducted, or
other actions taken in the regular course of their duties.
(2) They limit their testimony to factual matters such as the
following: their observations of the patient or other operative facts;
the treatment prescribed or corrective action taken; course of recovery
or steps required for repair of damage suffered; and, contemplated
future treatment.
(3) Their testimony may not extend to expert or opinion testimony,
to hypothetical questions, or to a prognosis.
(d) Court-ordered expert or opinion testimony. If a court or other
appropriate authority orders expert or opinion testimony, the witness
will immediately notify Litigation Division. If Litigation Division
determines it will not challenge the subpoena or order, the witness
will comply with the subpoena or order. If directed by Litigation
Division, however, the witness will respectfully decline to comply with
the subpoena or order. (See United States ex. rel. Touhy v. Ragen, 340
U.S. 462 (1951)).
(e) Expert witness fees. All fees tendered to present DA personnel
as an expert or opinion witness, to the extent they exceed actual
travel, meals, and lodging expenses of the witness, will be remitted to
the Treasurer of the United States.
Sec. 516.50 Interference with mission.
If the absence of a witness from duty will seriously interfere with
the accomplishment of a military mission, the SJA or legal adviser will
advise the requesting party and attempt to make alternative
arrangements. If these efforts fail, the SJA or legal adviser will
refer the matter to Litigation Division.
Litigation in Which the United States Has an Interest
Sec. 516.51 Response to subpoenas, orders, or requests for witnesses.
(a) Referral to a deciding official. Requests, subpoenas, or orders
for official information, interviews or testimony of present or former
DA personnel in litigation or potential litigation in which the United
States has an interest, including requests from DOJ, will be resolved
by the SJA or legal adviser pursuant to the principles of this subpart.
Litigation Division will be consulted on issues that cannot be resolved
by the SJA or legal adviser.
(b) Reassignment of witnesses. When requested by the U.S. Attorney,
the SJA or legal adviser will ensure that no witnesses are reassigned
from the judicial district without advising the DOJ attorney. If a
witness is vital to the government's case and trial is imminent, the
SJA or legal adviser should make informal arrangements to retain the
witness in the command until trial. If this is not feasible, or if a
satisfactory arrangement cannot be reached with the DOJ attorney, the
SJA or legal adviser should notify Litigation Division.
Sec. 516.52 Expert witnesses.
Requests for present or former DA personnel as expert or opinion
witnesses from DOJ or other attorneys representing the United States
will be referred to Litigation Division unless the request involves a
matter that has been delegated by Litigation Division to an SJA or
legal adviser. In no event, may present or former DA personnel furnish
expert or opinion testimony in a case in which the United States has an
interest for a party whose interests are adverse to the interests of
the United States.
Sec. 516.53 News media and other inquiries.
News media inquiries regarding litigation or potential litigation
will be referred to the appropriate public affairs office. DA personnel
will not comment on any matter presently or potentially in litigation
without proper clearance. Local public affairs officers will refer
press inquiries to HQDA (SAPA), WASH DC 20310-1500, with appropriate
recommendations for review and approval by the Office of the Chief of
Public Affairs. All releases of information regarding actual or
potential litigation will be coordinated with Litigation Division prior
to release.
Status, Travel, and Expenses of Witnesses
Sec. 516.54 Witnesses for the United States.
(a) Status of witness. A military member authorized to appear as a
witness for the United States, including those authorized to appear
under Sec. 516.55(d), will be placed on temporary duty. If USAR or NG
personnel are requested as witnesses for the United States, and if
their testimony arises from their active duty service, they should be
placed on active duty to testify. The status of a civilian employee
will be determined under Federal Personnel Manual 630, subchapter 10.
DA personnel who appear as necessary witnesses for a party asserting
the government's claim for medical care expenses are witnesses for the
United States.
(b) Travel arrangements. Travel arrangements for witnesses for the
United States normally are made by DOJ through Litigation Division for
other than local travel. Litigation Division will issue instructions
for this travel, including fund citation, to the appropriate commander.
A U.S. Attorney, or an attorney asserting the government's medical care
claim under Subpart E, may make arrangements for local travel through
the SJA or legal adviser for attendance of a witness who is stationed
at an installation within the same judicial district, or not more than
100 miles from the place where testifying. Other requests, including
those under Sec. 516.55(d), will be referred to Litigation Division.
The instructions from Litigation Division, or the request from the U.S.
Attorney or the attorney asserting the government's claim, will serve
as a basis for the issuance of appropriate travel orders by the local
commander.
(c) Travel and per diem expenses. The witness' commander or
supervisor should ensure the witness has sufficient funds to defray
expenses. The SJA or legal adviser will provide assistance.
(1) Where local travel is performed at the request of a U.S.
Attorney and the testimony does not involve information acquired in the
performance of duties, transportation arrangements and any per diem
expenses are the responsibility of the U.S. Attorney.
(2) An attorney asserting the government's medical care or property
claim may be required to advance local travel expense money to the
witness requested and to include these in recoverable costs where the
government's claim is not large enough to justify expenditures of
government travel funds.
(3) Other local travel and per diem expense for cases involving
Army activities or claims are proper expenses of the command issuing
the orders.
(4) Litigation Division will furnish travel expense and per diem
funds for other than local travel and will receive reimbursement from
DOJ or other government agencies as appropriate.
Sec. 516.55 Witnesses for a state or private litigant.
(a) Status of witness. If authorized to appear as a witness for a
state or private litigant, and the testimony to be given relates to
information obtained in the performance of official duties, a military
member will attend in a permissive TDY status. If authorized to appear
as a witness, but the testimony does not relate to information obtained
in the performance of official duties, a military member may be granted
a pass or permissive TDY under AR 630-5, or be required to take
ordinary leave. The status of a civilian employee will be determined
under 5 CFR Chapter I.
(b) Travel arrangements. The requesting party or state agency will
make all travel arrangements for attendance of DA personnel authorized
to appear as witnesses for a state or private litigant. The local
commander may issue appropriate orders when necessary.
(c) Travel expenses. The United States may not pay travel, meals,
and lodging expenses of the witness, other than normal allowances for
subsistence pursuant to the DOD Military Pay and Allowances
Entitlements Manual. These expenses are solely a matter between the
witness and the party seeking his appearance. Witnesses ordinarily
should be advised to require advance payment of such expenses. Military
personnel authorized to appear in a pass or permissive TDY status are
not entitled to receive witness attendance fees, but may accept travel,
meals, and lodging expense money from the requesting litigant. All
witness fees tendered the military member, to the extent they exceed
such actual expenses of the member, will be remitted to the Treasurer
of the United States. A civilian employee authorized to appear in his
or her official capacity will accept the authorized witness fees, in
addition to the allowance for travel and subsistence, and make
disposition of the witness fees as instructed by his or her personnel
office.
(d) Funding by the United States. Requests for DA personnel to
appear at government expense as witnesses in state or local proceedings
for a party other than the United States, including cases involving
domestic violence or child abuse, will be referred to Litigation
Division. Litigation Division may authorize travel and per diem
expenses under Sec. 516.54 when the case is one in which the United
States has a significant interest.
Sec. 516.56 Witnesses before foreign tribunals.
(a) Referral to the SJA. Requests or subpoenas from a foreign
government or tribunal for present DA personnel stationed or employed
within that country to be interviewed or to appear as witnesses will be
forwarded to the SJA of the command exercising general court-martial
jurisdiction over the unit to which the individual is assigned,
attached, or employed. The SJA will determine the following:
(1) Whether a consideration listed in Sec. 516.47(a)(1) through
(a)(3) applies.
(2) Whether the information requested is releasable under the
principles established in Sec. 516.43 through Sec. 516.46.
(3) Whether the approval of the American Embassy should be obtained
because the person is attached to the Embassy staff or a question of
diplomatic immunity may be involved.
(b) United States has an interest in the litigation. If the SJA
determines that the United States has an interest in the litigation,
the commander may authorize the interview or order the individual's
attendance in a temporary duty status. The United States will be deemed
to have an interest in the litigation if it is bound by treaty or other
international agreement to ensure the attendance of such personnel.
(c) United States has no interest in the litigation. If the SJA
determines that the United States does not have an interest in the
litigation, the commander may authorize the interview or the appearance
of the witness under the principles established in Sec. 516.47 through
Sec. 516.50.
(d) Witnesses located outside the requester's country. If the
requested witness is stationed in a country other than the requester's,
the matter will be referred to Litigation Division.
Subpart H--Remedies in Procurement Fraud and Corruption
Sec. 516.57 Purpose
This subpart delineates the policies, procedures, and
responsibilities for reporting and resolving allegations of procurement
fraud or irregularities (PFI) within DA. It implements DOD Directive
7050.5. (See Appendix D to this part.)
Sec. 516.58 Policies
(a) Procurement fraud and irregularities will be promptly and
thoroughly addressed whenever encountered. Reports will be initiated in
a timely manner and will be supplemented as appropriate.
(b) Investigations will be monitored to see that interim corrective
action is taken and that final action is taken as expeditiously as
possible.
(c) This regulation establishes the Procurement Fraud Division
(PFD), U.S. Army Legal Services Agency, as the single centralized
organization within the Army to coordinate and monitor criminal, civil,
contractual, and administrative remedies in significant cases of fraud
or corruption relating to Army procurement.
(d) The key elements of the Army's procurement fraud program
follow: centralized policy making and program direction; fraud remedies
coordination; decentralized responsibility for operational matters,
such as reporting and remedial action; continuous case monitorship by
PFD from the initial report until final disposition; and, command-wide
fraud awareness training.
(e) Remedies for PFI will be pursued in a timely manner and
properly coordinated with other agencies. Every effort will be made to
support criminal investigation and prosecution of fraudulent activity.
(f) A specific remedies plan will be formulated for each
significant case of fraud or corruption involving procurement.
(g) Coordination on the status and disposition of cases will be
maintained between PFD, OTJAG, PFI Coordinators at MACOMs, and
Procurement Fraud Advisers at subordinate commands. Coordination of
procurement and personnel actions will be accomplished with
investigative agencies as required by those agencies.
(h) Training which relates to fraud and corruption in the
procurement process is a significant element of this program.
Sec. 516.59 Duties and procedures.
(a) TJAG has overall responsibility for the coordination of
remedies in procurement fraud and corruption within the Army. This
responsibility has been delegated to PFD. Functions of PFD will include
the following:
(1) Serving as the single centralized organization in the Army to
monitor the status of, and ensure the coordination of, criminal, civil,
contractual, and administrative remedies for each significant case of
fraud or corruption.
(2) Receiving reports of procurement fraud and corruption from any
source including, but not limited to the following: DOD criminal
investigative organizations; audit agencies; contracting officers;
inspectors general of the executive branch; correspondence from the
public; and, commanders. This provision does not repeal any other
reporting requirement but establishes PFD as a recipient of PFI
information at the earliest possible time.
(3) Establishing a monitoring system within OTJAG for all cases of
fraud and corruption that relate to Army procurement.
(4) Discussing regularly with the U.S. Army Criminal Investigation
Command (USACIDC) or the assigned DOD criminal investigative
organization the current status of significant fraud or corruption
cases and their coordination with prosecutive authorities.
(5) Ensuring that all criminal, civil, contractual, and
administrative remedies are considered in each significant fraud or
corruption case and that timely and applicable remedies are undertaken
by commanders, contracting officers, and suspension and debarment
authorities. For example, consideration of suspension or debarment of a
contractor or individual should normally be initiated within 30 days of
indictment or conviction.
(6) Coordinating, as appropriate, with other DOD components
affected by a significant fraud or corruption case being monitored by
the Army.
(7) Developing, with the responsible DOD investigative
organization, Procurement Fraud Coordinators and Advisers, and other
involved agencies, a specific comprehensive remedies plan for each
significant fraud or corruption case.
(8) Coordinating remedies with DOJ. In the case of ongoing criminal
investigations, coordinate remedies through, or with the prior
knowledge of, the DOD criminal investigative organization responsible
for the case.
(9) In significant fraud or corruption cases, identifying and
documenting any known adverse impact on a DOD mission, and including
the information in any remedies plan.
(10) Providing the appropriate DOD criminal investigative
organization with information concerning final remedies as a result of
an investigation by that organization.
(11) Receiving notifications from criminal investigative agencies
concerning substituted, defective, and counterfeit hardware in which a
serious hazard to health, safety or operational readiness is indicated;
ensuring that appropriate safety, procurement and program officials are
informed in accordance with enclosure 3 of DOD Directive 7050.5. PFD
will specifically ensure that contract reviews (DD 350 reports) and
adverse impact statements (See Sec. 516.64(c)(2) are prepared, and that
such information is used to determine if further inquiry is warranted
to prevent reoccurrence and to detect other possible fraud. Impact
statements will not be released to prosecutive agencies until reviewed
by PFD. When appropriate, PFD will coordinate with other DOD agencies
to establish a lead agency for victim impact statements in multi-DOD
agency cases.
(b) The Commanding General, USACIDC, will take the following
actions:
(1) Notify PFD of any investigations involving fraud or corruption
related to procurement activities.
(2) Notify other DOD component criminal investigative organizations
when investigations involving fraud or corruption affect that
component. This includes evidence of fraud by a contractor,
subcontractor, or employee of either, on current or past contracts
with, or affecting, that component.
(3) Notify the Defense Investigative Service of any investigations
that develop evidence which affects DOD cleared industrial facilities
or personnel.
(4) Determine the effect on any ongoing investigations or
prosecutions of any criminal, civil, contractual, or administrative
actions being considered by a centralized organization and advise of
any adverse impact.
(5) Promptly provide commanders, contracting officers, Procurement
Fraud Advisers, and suspension and debarment authorities, when needed
to allow consideration of applicable remedies, any court records,
documents, or other evidence of fraud or corruption from ongoing or
completed criminal investigations. In cases of indictment or conviction
of a contractor or individual, the information will be provided in time
for initiation, if appropriate, of suspension or debarment action
within 30 days of the indictment or conviction.
(6) Provide prosecutive authorities and centralized organizations
with timely information on the adverse impact on a DOD mission of fraud
or corruption that relates to DOD procurement activities. This
information will be obtained from individuals such as the head of the
contracting agency, appropriate commanders, and staff agencies. Some
examples of adverse impact on a DOD mission are endangerment of
personnel or property, monetary loss, compromise of the procurement
process, or reduction or loss of mission readiness.
(7) Discuss regularly with Procurement Fraud Advisers the status of
significant investigations of fraud or corruption and their
coordination with prosecutive authorities and provide documents and
reports resulting from the investigations.
(c) Commanders of service schools conducting procurement or
procurement-related training (such as The Judge Advocate General's
School, the U.S. Military Police School, and the U.S. Army Logistics
Management Center) will ensure the following:
(1) All procurement and procurement-related training includes a
period of instruction on fraud and corruption in the procurement
process. The length of the period of instruction will be appropriate to
the duration and nature of the training.
(2) Training materials are developed to support that training.
(3) Training materials developed will be sent to MACOM PFI
Coordinators.
(d) MACOM commanders and heads of contracting activities will
ensure the following:
(1) Substantial indications of fraud or corruption relating to Army
contracts or Army administered contracts are reported promptly to the
supporting USACIDC element and the Procurement Fraud Division.
(2) Information provided includes reports by contracting officers
under DFARS 209.406-3.
Sec. 516.60 Procurement fraud and irregularities programs at MACOMs.
(a) Command counsel and SJAs at MACOMs will develop a program and
appoint an attorney as PFI Coordinator for their command. Chief counsel
and SJAs at commands with procurement advisory responsibility will
appoint an attorney as a Procurement Fraud Adviser (PFA) to manage the
PFI program at their installations as well.
(b) Provision may be made for activities not having sufficient
attorney assets to obtain assistance from nearby installations that
have a PFA.
(c) Reports and recommendations will be transmitted through command
channels to the PFI coordinator for the affected MACOM.
(d) Command counsel, chief counsel, and SJAs will exercise
supervisory authority to ensure effective operation of the fraud
program and coordination of remedies within their organizations.
(e) The MACOM PFI Coordinator will have overall responsibility for
the design and implementation of the MACOM's procurement fraud program.
(f) PFAs and PFI Coordinators will coordinate with the appropriate
local CID or Defense Criminal Investigative Service (DCIS) activity to
assure the prompt notification and coordination of all Procurement
Fraud cases.
Sec. 516.61 Reporting requirements.
(a) Typical fraud indicators during the procurement cycle are
listed in Figure D-1, Appendix G, to this part. The mere presence of
one or more of these indicators does not, by itself, require reporting
under paragraph b of this section. Reports should be submitted if there
is a reasonable suspicion of procurement fraud or irregularity or the
procuring agency refers the matter for investigation.
(b) ``Procurement Flash Reports'' will be transmitted by FAX
directly to PFD whenever a PFI Coordinator or PFA receives notice of a
PFI involving the Army. To facilitate filing, a separate sheet should
be used for each case reported. These reports will provide a succinct
summary of the following available information:
(1) Name and address of contractor.
(2) Known subsidiaries of parent firms.
(3) Contracts involved in potential fraud.
(4) Nature of potential fraud.
(5) Summary of pertinent facts.
(6) Possible damages.
(7) Investigative agencies involved.
(8) Local PFAs (name and phone numbers).
Any of the above categories that cannot be completed will be
annotated as ``unknown at present.''
(c) When a report is required by DFARS or is requested by PFD, the
provisions of DFARS 209.406-3 (48 CFR 209.406-3) will be followed. That
paragraph provides the basic content and format for PFI reports.
(d) All personnel will cooperate to ensure that investigations and
prosecutions of procurement fraud are completed in a timely and
thorough manner. Requests for assistance from federal prosecutors
should be processed through the local PFA whenever possible. Requests
for federal investigators will be processed through the supporting
USACIDC and the PFA will be notified. When the conduct of criminal
investigations and prosecutions conflict with the progress of
procurements, reasonable deference will be given to criminal
investigators and prosecutors whenever possible. Any serious conflict
that cannot be resolved at a local level will be immediately reported
to the PFI Coordinator or PFD for action.
(e) PFI Coordinators and PFAs may request access to information
obtained during criminal investigations that is not protected by Fed.
R. Crim. P. 6(e) and use this information to assist them in taking
appropriate administrative, contractual, and civil remedies. Requests
for this information should be made directly to the appropriate federal
investigative agency. The investigative organization may withhold
requested information if release would compromise an investigation.
Difficulties in obtaining information which cannot be resolved locally
will be referred to PFD for appropriate action.
(f) USACIDC will notify, in writing, local PFAs as well as PFD
within 30 days, of initiation of a significant investigation of fraud
or corruption related to Army procurement activities. Such notification
will include the following:
(1) Case title.
(2) USACIDC Report of Investigation number.
(3) Responsible investigative agency or agencies.
(4) Office of primary responsibility.
(5) Date opened.
(6) Summary of facts.
(7) Suspected offense.
(g) The transmission of the information in f above may be delayed
if the Commanding General, USACIDC, or the head of another DOD criminal
investigation organization determines the transmission would compromise
the success of any case or its prosecution. The prosecutive authorities
dealing with the case will be consulted, when appropriate, in making
such determinations.
(h) USACIDC will obtain the following information at the earliest
possible point in an investigation of fraud or corruption that relates
to DOD procurement activities, whenever possible without reliance on
grand jury subpoenas:
(1) The individuals suspected to be responsible.
(2) The suspected firm's organizational structure.
(3) The firm's financial and contract history.
(4) The firm's organizational documents and records.
(5) Statements of witnesses.
(6) Monetary loss to the government.
(7) Other relevant information.
This information will be provided to PFD or other cognizant DOD
centralized organization.
(i) PFD will provide written notification to the Defense
Investigative Service of all suspension or debarment actions taken by
the Army.
Sec. 516.62 PFD and HQ USACIDC coordination.
PFD and HQ USACIDC will coordinate as follows:
(a) Discuss the status of significant procurement fraud or
corruption investigations being conducted by USACIDC and possible
remedies. These discussions should take place on a regular basis.
(b) Discuss the coordination of possible criminal, civil,
contractual, or administrative remedies with prosecutive authorities.
(c) PFD will maintain liaison with other DOD centralized
organizations and will coordinate remedies with those centralized
organizations affected by a significant investigation of fraud or
corruption that relates to DOD procurement activities.
(d) Ascertain the effect on any ongoing investigation of the
initiation of civil, contractual, or administrative remedies as
follows:
(1) PFD will maintain liaison with USACIDC and other DOD criminal
investigative organizations in order to determine the advisability of
initiating any civil, contractual, or administrative actions.
(2) USACIDC will advise PFD of any adverse effect on an
investigation or prosecution by the initiation of civil, contractual,
or administrative actions.
Sec. 516.63 Coordination with DOJ.
(a) PFD will establish and maintain liaison with DOJ and the
Defense Procurement Fraud Unit on significant fraud and corruption
cases to accomplish the following:
(1) Monitor criminal prosecutions.
(2) Initiate litigation for civil recovery.
(3) Coordinate administrative or contractual actions while
criminal or civil proceedings are pending.
(4) Coordinate settlement agreements or proposed settlements of
criminal, civil, and administrative actions.
(5) Respond to DOJ requests for information and assistance.
(b) In cases where there is an ongoing criminal investigation,
coordination with DOJ by any member of the Army normally will be
accomplished by or through USACIDC or the cognizant DOD criminal
investigative organization, or with the investigative organization's
advance knowledge. This does not apply to the routine exchange of
information between government attorneys in the course of civil
litigation or the routine referral of cases to DOJ for civil recovery.
(c) Initial contact by any attorney associated with the U.S. Army
with a U.S. Attorney's office or DOJ, whether initiated by the Army
attorney or not, will be reported to PFD. Activity after the initial
contact will only be reported to PFD when the Army attorney feels there
has been a significant event in the case. If the Army attorney is not a
PFI Coordinator or a PFA, the matter should be referred to one of these
two attorneys as soon as possible. Routine exchanges between Army
attorneys and U.S. Attorney's offices or DOJ do not need to be brought
to the attention of PFD.
Sec. 516.64 Comprehensive remedies plan.
(a) A specific, comprehensive remedies plan will be developed in
each significant investigation involving fraud or corruption that
relates to Army procurement activities. When possible, these plans
should be forwarded with the DFARS 209.406-3 reports. In no case,
however, should the report be delayed an appreciable time pending
completion of the plan. The format for a remedies plan is at Figure H-
2, Appendix G, to this part.
(b) The plan will be developed initially by the PFA with the
participation of the appropriate criminal investigators and other
relevant personnel such as the contracting officer. In significant
cases the PFA should also coordinate a remedies plan early with PFD.
Defective product/product substitution remedies plans must comply with
the requirements of Appendix D to this part.
(c) A comprehensive remedies plan will include at a minimum the
following information and considerations:
(1) Summary of allegations and investigative results.
(2) Statement of any adverse impact on a DOD mission. DOD
investigative organizations, commanders, or procurement officials will
also provide this information to prosecutive authorities to enhance
prosecution of offenses or to prepare a victim impact statement
pursuant to Fed. R. Crim. P. 32(c)(2).
(3) The impact upon combat readiness and safety.
(4) Consideration of each criminal, civil, contractual, and
administrative remedy available, and documentation of those remedies,
either planned, in progress, or completed.
(5) Restrictions on the pursuit of any remedies such as grand jury
information or possible compromise of the investigation.
(d) When remedies plans are received by PFD they will be
coordinated with the headquarters of the appropriate DOD criminal
investigative organization involved.
(e) Testing necessary to support the investigation and remedies
plan should comply with Figure H-3, Appendix G, to this part.
Sec. 516.65 Litigation reports in civil recovery cases.
(a) All substantiated PFI cases will be evaluated by PFAs to
determine whether it is appropriate to recommend civil recovery
proceedings.
(b) Recovery should be considered under both statutory and common
law theories, including but not limited to the following:
(1) False Claims Act, 31 USC 3729.
(2) Anti-Kickback Act, 41 USC 51.
(3) Sherman Act, 15 USC 1-7.
(4) Racketeer Influenced and Corrupt Organizations Act, 18 USC
1961-1968.
(5) Common law fraud.
(6) Unjust enrichment.
(7) Constructive trust.
(8) Cases where contracts have been procured in violation of the
conflict of interest statute, 18 USC 218. See K&R Engineering Co. v.
United States, 616 F.2d 469 (Ct. Cl., 1980).
(c) When civil recovery appears possible, PFD should be consulted
to determine if a litigation report is necessary. If requested by PFD,
the report should summarize the available evidence and applicable
theories of recovery and be prepared under Sec. 516.23 of this part. To
avoid unnecessary duplication of effort, recovery reports may include
and make liberal references to other reports previously prepared on a
given case such as the DFARS 209.406-3 (48 CFR 209.406-3) report.
(d) The MACOM PFI coordinator and PFA will monitor all civil fraud
recovery efforts throughout the command and will provide training and
technical assistance as required. Status reports of all civil fraud
recovery efforts will be provided through channels as required by PFD.
Sec. 516.66 Administrative and contractual actions.
(a) The following remedial options should be considered in response
to confirmed fraudulent activity:
(1) Contractual.
(i) Termination of contract for default.
(ii) Nonaward of contract based upon a finding of contractor
nonresponsibility. (If this appears to be a valid option, a DFARS
209.406-3 (48 CFR 209.406-3) report must be prepared where contractor
nonresponsibility is based on lack of integrity).
(iii) Rescission of contract.
(iv) Revocation of acceptance.
(v) Use of contract warranties.
(vi) Withholding of payments to contractor. In the case of
withholding pursuant to DFARS 2032.173, the Chief, PFD, is the Army
Remedy Coordinating Official.
(vii) Offset of payments due to contractor from other contracts.
(viii) Revocation of facility security clearances.
(ix) Increased level of quality assurance.
(x) Refusal to accept nonconforming goods.
(xi) Denial of claims submitted by contractors.
(xii) Removal of contract from automated solicitation or payment
system.
(2) Administrative.
(i) Change in contracting forms and procedures.
(ii) Removal or reassignment of government personnel.
(iii) Review of contract administration and payment controls.
(iv) Revocation of warrant of contracting officer.
(v) Suspension of contractor.
(vi) Debarment of contractor.
(b) In cases which are pending review or action by DOJ, PFAs should
coordinate with the DOJ attorney handling the case prior to initiating
any contractual or administrative remedy. In the case of ongoing
criminal investigations, this coordination will be accomplished through
the appropriate DOD criminal investigation organization.
Sec. 516.67 Overseas cases of fraud or corruption.
(a) Commanders of overseas major commands will establish
procedures, similar to this regulation and consistent with the DFARS,
and regulations and directives of their respective unified commands,
for reporting and coordination of available remedies in overseas
procurement fraud and corruption cases involving foreign firms and
individuals. Overseas major commands will also maintain liaison with
PFD and provide periodic reports of remedies coordination results.
(b) Overseas suspension and debarment actions are governed by DFARS
209.403 (48 CFR 209.403). The names of all firms and individuals
suspended or debarred will be expeditiously forwarded to PFD for
inclusion on the List of Parties Excluded From Federal Procurement or
NonProcurement Programs.
(c) Overseas cases of fraud or corruption related to the
procurement process that involve U.S. firms or U.S. citizens may be
referred to PFD for coordination of remedies under this regulation.
Sec. 516.68 Program Fraud Civil Remedies Act (PFCRA).
(a) PFCRA was enacted on 21 October 1986 (Public Law 99-509) and
implemented by DOD on 30 August 1988 (DOD Directive 5505.5). (See
Appendix E to this part.)
(b) PFCRA expands the capability of the government to deter and
recover losses from false, fictitious or fraudulent claims and
statements. It is also applicable to program fraud and provides an
administrative remedy in addition to those otherwise available to the
Army in procurement fraud or pay and entitlements fraud cases.
(c) As part of the Army implementation, the Secretary of the Army's
duties and responsibilities under PFCRA as Authority Head are delegated
to the Army General Counsel. The Chief, Intellectual Property Law
Division, is the Army's Reviewing Official within the meaning of PFCRA.
Army implementation also requires DA to follow the policies and
procedures prescribed in enclosure 2 of DOD Directive 5505.5. (See
Appendix E to this part.)
(d) The DOD Inspector General (IG) is the Investigating Official
within DOD. The duties of this position will be performed by the
Assistant IG For Investigations. This individual is vested with the
authority to investigate all allegations of liability under PFCRA. That
authority includes the power to task subordinate investigative agencies
to review and report on allegations that are subject to PFCRA. If the
Investigative Official concludes that an action under PFCRA is
warranted in an Army case, the official will submit a report containing
the findings and conclusions of such investigation through PFD to the
Army Reviewing Official.
(e) Pursuant to DOD IG guidance, USACIDC will forward appropriate
cases that appear to qualify for resolution under PFCRA to the
Investigating Official in a timely manner. Additionally, USACIDC will
forward current information regarding the status of remedies pending or
concluded. USACIDC may obtain remedies information by coordinating with
PFD and the cognizant command.
(f) In pay and entitlement or transportation operation fraud cases,
USACIDC will coordinate with the Office of the Secretary of the Army,
Financial Management, Review and Oversight Directorate (SAFM-RO), to
determine the status of any pending or proposed action under the Debt
Collection Act. This information, in addition to information obtained
under Sec. 517.68(e), will be forwarded with appropriate cases to the
Investigating Official.
(g) In those cases where the Investigating Official has submitted a
report to the Army Reviewing Official for action under PFCRA, PFD will,
at the direction of the Reviewing Official, prepare all legal memoranda
as necessary to transmit the Reviewing Official's intention to issue a
complaint. As part of this responsibility PFD will do the following:
coordinate with the affected command or agency to ensure that all
appropriate remedies have been considered; evaluate the overall
potential benefits to the Army; and, ensure that action under PFCRA is
not duplicative of other remedies already taken. In order to fully
supplement the Reviewing Official's file, PFD may request a litigation
report.
(h) PFD will coordinate all cases involving transportation
operations emanating from Military Traffic Management Command (MTMC)
activity, under the military transportation exception to the FAR, and
all cases involving pay and entitlements fraud with SAFM-RO, for
comments and recommendations. These matters will be forwarded with the
case file to the Reviewing Official.
(i) If the Attorney General approves the issuance of a complaint,
PFD, at the direction of the Army Reviewing Official, shall prepare the
complaint and all necessary memoranda as required. PFD shall also
designate attorneys to represent the Authority in hearings under PFCRA.
Subpart I--Cooperation With the Office of Special Counsel
Sec. 516.69 Introduction.
This subpart prescribes procedures for cooperation with the Office
of Special Counsel (OSC) when OSC is investigating alleged prohibited
personnel practices or other allegations of improper or illegal conduct
within DA activities.
Sec. 516.70 Policy.
(a) DA policy follows:
(1) Civilian personnel actions taken by management officials,
civilian and military, will conform to laws and regulations
implementing established merit system principles and will be free of
any prohibited personnel practices.
(2) Management officials will take vigorous corrective action when
prohibited personnel practices occur. Disciplinary measures under AR
690-700, Chapter 751, may be initiated after consultation and
coordination with appropriate civilian personnel office and labor
counselor.
(b) DA activities will cooperate with OSC in the following ways:
(1) Promoting merit system principles in civilian employment
programs within DA.
(2) Investigating and reporting allegations of improper or illegal
conduct forwarded to the activity by HQDA.
(3) Facilitating orderly investigations by the OSC of alleged
prohibited personnel practices and other matters assigned for
investigation to the OSC, such as violations of the Whistleblower
Protection Act of 1989, the Freedom of Information Act, or the Hatch
Act.
Sec. 516.71 Duties.
(a) DA General Counsel. The DA General Counsel is responsible for
the following:
(1) Provide overall guidance on all issues concerning cooperation
with OSC, including the investigation of alleged prohibited personnel
practices and allegations of improper or illegal conduct.
(2) Review for adequacy and legal sufficiency each OSC report of
investigation that must be personally reviewed by the Secretary of the
Army.
(3) Ensure compliance with the Civil Service Reform Act of 1978 by
obtaining a suitable investigation of allegations of improper or
illegal conduct received from OSC. This includes compliance with time
limits for reporting results of the investigation and personal review
of the report by the Secretary of the Army when required.
(4) Forward to the DOD Inspector General (DODIG) copies of each
allegation of improper or illegal conduct referred to DA by OSC.
(5) Delegate to The Judge Advocate General the authority to act on
behalf of the DA General Counsel in all OSC investigations of
prohibited personnel practices.
(6) Act upon requests for counsel from ``accused'' or ``suspected''
employees.
(b) Chief, Labor and Employment Law Office. The Chief, Labor and
Employment Law Office, OTJAG (DAJA-LE) is responsible for the
following:
(1) Act for TJAG as the Senior Management Official in cooperating
with OSC. As Senior Management Official, the Chief, DAJA-LE, through
TJAG, will be responsible to the DA General Counsel for administration
of the policies and procedures contained in this chapter.
(2) Promptly inform the DA General Counsel of any OSC investigation
and consult with the DA General Counsel on any legal or policy issue
arising from an OSC investigation.
(3) Serve as the HQDA point of contact in providing assistance to
OSC.
(4) Act as DA attorney-of-record in administrative matters
initiated by OSC before the MSPB which arise from an OSC investigation.
As DA attorney-of-record, the Chief, DAJA-LE, will file necessary
pleadings and make necessary appearances before the MSPB to represent
DA interests.
(5) Monitor ongoing OSC investigations within DA.
(6) Ensure that appropriate DA personnel are fully apprised of
their rights, duties and the nature and basis for an OSC investigation.
(7) Review and prepare recommendations to the General Counsel
concerning any OSC recommended corrective action referred to DA. Such
review and recommendations will address whether disciplinary action
should be taken against DA civilian employees or military members, and
whether the information warrants referral to appropriate authorities
for corrective and disciplinary action.
(8) Seek OSC approval of DA proposed disciplinary action against an
employee for an alleged prohibited personnel practice or other
misconduct which is the subject of or related to any OSC investigation.
(9) Review and prepare recommendations for DA General Counsel
concerning requests for counsel, to include identifying available DA
attorneys to act as individual representatives. Upon approval of DA
General Counsel, appoint DA civilian and military attorneys, to include
attorneys from the U.S. Army Materiel Command and the Corps of
Engineers, to represent individual military members or employees.
(10) Determine, to the extent practicable, whether an investigation
is being or has been conducted which duplicates, in whole or in part, a
proposed or incomplete OSC investigation, and convey that information
to the OSC whenever it might avoid redundant investigative efforts.
(11) Provide guidance and assistance to activity Labor Counselors
in fulfilling their duties as Liaison Officers.
(c) Activity Labor Counselor. The activity Labor Counselor will do
the following:
(1) Act as Liaison Officer for OSC investigations arising within
the command, activity or installation serviced by the Labor Counselor's
client Employment Office.
(2) Promptly inform the MACOM labor counselor and the Chief, DAJA-
LE, of any OSC inquiry or investigation.
(3) Act as the legal representative of the command, activity, or
installation.
(4) Assist the OSC investigator with administrative matters related
to the investigation, such as requests for witnesses and documents.
(5) Process all OSC requests for documents.
(6) Make appropriate arrangements for OSC requests to interview
civilian employees and military members.
(7) Ensure that personnel involved are advised of the nature and
basis for an OSC investigation, the authority of the OSC, and their
rights and duties.
(8) Consult with the Chief, DAJA-LE, on policy and legal issues
arising from the OSC investigation.
(9) Keep the Chief, DAJA-LE, informed of the status of the OSC
investigation.
(l0) Act as agency representative before the MSPB in actions
initiated by employees (individual right of action appeals).
Sec. 516.72 Procedures.
(a) Witnesses and counsel for consultation.
(1) DA military and civilian managers, supervisors, and employees
who are requested by OSC for an interview will be made available in
accordance with arrangements the Labor Counselor will establish.
Requests for the testimony of IGs will be coordinated with the
Inspector General Legal Office, SAIG-ZXL, DSN 227-9734 or Commercial
(703) 697-9734.
(2) The Labor Counselor will ensure that witnesses are aware of
their obligation to answer OSC questions, their potential to be
considered ``suspects'' in OSC investigations, and their right to the
assistance of counsel during interviews with OSC representatives. If
the requested witness is not an ``accused'' or ``suspected'' individual
and the witness asks for assistance of counsel, a DA attorney will be
made available for the limited purpose of consultation regarding the
witness' rights and obligations. An attorney-client relationship will
not be established. (See Appendix F to this part).
(3) The Labor Counselor will arrange for individual counsel for
consultation from local assets. If local assets are not sufficient,
assistance may be requested from other DOD activities in the area or
from HQDA, DAJA-LE. DA attorneys tasked to consult with one or more
witnesses individually will not be tasked to represent the DA activity
concerned.
(4) The Labor Counselor, as the legal representative of the
activity, is precluded from assisting or representing individual
witnesses during OSC interviews.
(b) ``Accused'' or ``suspected'' DA personnel and counsel for
representation.
(1) If the OSC identifies a DA civilian employee or a military
member as an ``accused'' or ``suspected'' individual, or if the Labor
Counselor concludes that an individual is a ``suspect,'' the Labor
Counselor will inform the individual. The Labor Counselor also will
advise the individual of the availability of counsel for representation
upon approval by DA General Counsel. (See Glossary, Counsel for
Representation).
(2) If the ``suspected'' individual desires legal representation by
DA, the individual must request counsel by submitting a written request
through DAJA-LE to DA General Counsel. (See Figure I-1, Appendix G, to
this part).
(3) During the investigation but prior to DA General Counsel
approval of the request for counsel, an ``accused'' or ``suspected''
individual will be provided the assistance of counsel for consultation
in the same manner as any other OSC requested witness. ``Accused'' or
``suspected'' individuals who do not request counsel for representation
will be provided counsel for consultation in the same manner as any
other OSC requested witness.
(4) If the DA General Counsel approves the request for counsel, the
Chief, DAJA-LE, will appoint a DA attorney to represent the individual.
This appointment may be made telephonically but will be confirmed in
writing. The Chief, DAJA-LE, will make appropriate coordination with
MACOM SJAs and command counsel to confirm availability of the attorney.
(5) An attorney appointed by DA may represent a civilian employee
in any proceeding initiated by OSC before the MSPB. However, counsel
provided by DA may not represent the employee in any proceeding
initiated by DA, in any appeal from a final decision by the MSPB, or in
any collateral proceeding before any forum other than the MSPB.
(6) OSC may not bring a disciplinary action before the MSPB against
a military member. Accordingly, DA counsel will not be required to
represent the military member in any MSPB disciplinary proceeding.
However, counsel may represent the member during the OSC investigation
with the understanding that the evidence obtained by OSC may be
referred to the member's command for possible disciplinary action under
the UCMJ or appropriate regulations. If DA initiates action against the
military member for misconduct disclosed in the OSC investigation, the
member will obtain counsel as provided under the UCMJ or relevant
regulations.
(c) Records.
(1) OSC requests for records must be in writing. The Labor
Counselor will assist OSC representatives in identifying the custodian
of specific records sought during the inquiry.
(2) Generally, requested records should be furnished to OSC
representatives if such records would be released under AR 25-55 or AR
340-21 to other government agencies in the normal course of official
business. Records constituting attorney work product should not be
released without approval of the Chief, DAJA-LE. IG records will not be
released without the approval of the Inspector General. (AR 20-1). The
Labor Counselor should seek guidance from the Chief, DAJA-LE, if there
is any doubt concerning the release of records.
(3) If, after completion of the OSC investigation, the OSC files a
complaint against DA or a DA employee, release of records and other
information will be accomplished pursuant to MSPB rules of discovery (5
CFR part 1201, subpart B).
(d) Funding. The command, activity, or installation within which
the allegations of misconduct arose will provide funding for travel,
per diem and other necessary expenses related to the OSC investigation.
These expenses may include appropriate funding for witnesses, counsel
for consultation and DA General Counsel approved counsel for
representation.
Sec. 516.73 Assistance from HQDA.
Labor Counselors may seek guidance on questions arising from
implementation of this chapter by calling the Chief, DAJA-LE, DSN 225-
9476/9481 or Commercial (703) 695-9476/9481.
Subpart J--Soldiers Summoned to Serve on State and Local Juries
Sec. 516.74 General.
(a) This subpart implements 10 U.S.C. Sec. 982 and DOD Directive
5525.8. It establishes Army policy concerning soldiers on active duty
who are summoned to serve on state and local juries.
(b) This subpart does not apply to Army National Guard soldiers in
an annual training or full-time AGR (Active Guard Reserve) status under
Title 32, U.S. Code. Soldiers in a Title 32 status must refer to their
respective state law for relief from state or local jury duty.
Sec. 516.75 Policy.
(a) Active duty soldiers should fulfill their civic responsibility
by serving on state and local juries, so long as it does not interfere
with military duties.
(b) The following active duty soldiers are exempt from complying
with summons to serve on state and local juries:
(1) General officers.
(2) Commanders.
(3) Active duty soldiers stationed outside the United States,
Puerto Rico, Guam, the Northern Mariana Islands, American Samoa, and
the Virgin Islands.
(4) Active duty soldiers in a training status.
(5) Active duty soldiers assigned to forces engaged in operations.
(c) Other active duty soldiers may be exempted from serving on
local juries if compliance with such summons would have either of the
following effects:
(1) It would unreasonably interfere with performance of the
soldier's military duties; or,
(2) It would adversely affect the readiness of a summoned soldier's
unit, command, or activity.
Sec. 516.76 Exemption determination authority.
(a) The commander exercising special court-martial convening
authority (SPCMCA) over a unit has the authority to determine whether a
soldier of that unit, who has been served with a summons, is exempt
from serving on a state or local jury unless that authority has been
limited or withheld in accordance with paragraph (b) or (c) of this
section. This authority may not be delegated to a subordinate commander
who does not exercise SPCMCA.
(b) A commander superior to the SPCMCA, who also exercises SPCMCA
or general court-martial convening authority (GCMCA) over a unit, may
limit or withhold the exemption determination authority of subordinate
commanders.
(c) A GCMCA, who orders a unit or soldier assigned to one command
to be attached or detailed to another command for disciplinary purposes
(for example, ``for administration'' or ``for administration of
military justice''), may reserve exemption determination authority to
the commander exercising SPCMCA in the chain of command to which the
unit or soldier is assigned rather than the chain of command to which
the unit or soldier is attached or detailed.
Sec. 516.77 Procedures for exemption.
(a) Active duty soldiers served with a summons to serve on a state
or local jury will promptly advise their commander and provide copies
of pertinent documents.
(b) Unit commanders will evaluate the summons considering both the
individual soldier's duties and the unit mission. Coordination with the
servicing judge advocate or legal adviser and with the appropriate
state or local official may be necessary to determine any impact on the
soldier's duties or on unit readiness.
(1) If the soldier is not exempt under Sec. 516.75 (b) or (c), the
commander will process the soldier for permissive TDY in accordance
with AR 630-5, Leaves and Passes.
(2) If the soldier is exempt under Sec. 516.75 (b) or (c), the
commander will forward the summons and any related documentation, with
recommendations, through the chain of command to the commander with
exemption determination authority over the soldier concerned.
(c) The commander with exemption determination authority over the
soldier concerned will determine whether the soldier is exempt. His
determination is final.
(d) The exemption determination authority will notify responsible
state or local officials whenever a soldier summoned for jury duty is
exempt. The notification will cite 10 U.S.C. 982 as authority.
Sec. 516.78 Status, fees, and expenses.
(a) Soldiers who are required to comply with summons to serve on
state or local juries will be placed on permissive TDY under the
provisions of AR 630-5.
(b) Jury fees accruing to soldiers for complying with the summons
to serve on state and local juries must be turned over to the
appropriate finance office for deposit into the U.S. Treasury. Commands
will establish procedures with local authorities and their servicing
finance and accounting activity to ensure that such jury fees are so
deposited. Soldiers, however, may keep any reimbursement from state or
local authority for expenses incurred in the performance of jury duty,
including transportation, meals, and parking.
Appendix A to Part 516--References
Publications referenced in this part can be obtained at the
National Technical Information Services, U.S. Department of
Commerce, 5285 Port Royal Road, Springfield, VA 22161.
Required Publications
AR 25-55, The Department of the Army Freedom of Information Act
Program. (Cited in Secs. 516.40, 516.72)
AR 27-10, Military Justice. (Cited in Sec. 516.4)
AR 27-20, Claims. (Cited in Secs. 516.4, 516.33, 516.22)
AR 27-60, Patents, Inventions, and Copyrights.
AR 37-60, Pricing for Material and Services. (Cited in Sec. 516.43.)
AR 37-103, Finance and Accounting for Installations: Disbursing
Operations. (Cited in Sec. 516.22.)
AR 60-20, Operating Policies. (Cited in Sec. 516.22.)
AR 190-9, Absentee Deserter Apprehension Program and Surrender of
Military Personnel to Civilian Law Enforcement Agencies. (Cited in
Sec. 516.9)
AR 210-47, State and Local Taxation of Lessee's Interest in Wherry
Act Housing (Title VIII of the National Housing Act).
AR 215-1, Administration of Army Morale, Welfare, and Recreation
Activities and Nonappropriated Fund Instrumentalities. (Cited in
Sec. 516.22.)
AR 215-2, The Management and Operation of Army Morale, Welfare, and
Recreation Activities and Nonappropriated Fund Instrumentalities.
(Cited in Sec. 516.22.)
AR 310-1, Publications, Blank Forms, and Printing Management.
AR 340-21, The Army Privacy Program. (Cited in Secs. 516.40,
516.72.)
AR 380-5, Department of the Army Information Security Program.
AR 405-25, Annexation. (Cited in Sec. 516.22.)
AR 630-5, Leaves and Passes. (Cited in Secs. 516.55, 516.77,
516.78.)
AR 630-10, Absence Without Leave, Desertion, and Administration of
Personnel Involved in Civilian Court Proceedings. (Cited in
Sec. 516.9)
Related Publications
A related publication is merely a source of additional
information. The user does not have to read it to understand the
regulation.
AR 20-1, Inspector General Activities and Procedures. (Cited in
Secs. 516.41, 516.72.)
AR 27-1, Judge Advocate Legal Service.
AR 27-3, Legal Assistance. (Cited in Sec. 516.6.)
AR 27-10, Military Justice. (Cited in Secs. 516.4, 516.5, 516.15.)
AR 27-50, Status of Forces Policies, Procedures, and Information.
(Cited in Sec. 516.15.)
AR 37-104-3, Military Pay and Allowances Procedures.
AR 37-105, Finance and Accounting for Installations: Civilian Pay
Procedures.
AR 55-19, Marine Casualties. (Cited in Sec. 516.22.)
AR 190-29, Misdemeanors and Uniform Violation Notices Referred to
U.S. Magistrates or District Courts.
AR 190-40, Serious Incident Report. (Cited in Sec. 516.15.)
AR 210-50, Family Housing Management. (Cited in Sec. 516.37.)
AR 335-15, Management Information Control System. (Cited in
Sec. 516.15.)
AR 600-40, Apprehension, Restraint, and Release to Civil
Authorities.
AR 600-50, Standards of Conduct for Department of the Army
Personnel.
AR 690-700, Personnel Relations and Services. (Cited in
Sec. 516.70.)
Prescribed Form
DA Form 4, Department of the Army Certification for Authentication
of Records. (Prescribed in Sec. 516.25, 516.35.)
Referenced Forms
DA Form 2631-R, Medical Care-Third Party Liability Notification.
DA Form 3154, MSA Invoice and Receipt.
Appendix B to Part 516--Mailing Addresses
The following is a list of frequently referred to Department of
the Army Services/Divisions/Offices and their mailing addresses:
COMMANDER (JACS-Z), U.S. ARMY CLAIMS SERVICE, OTJAG, BUILDING 4411,
ROOM 206, LLEWELLYN AVENUE, FORT GEORGE G. MEADE, MD 20755-5360
(1) PERSONNEL CLAIMS AND RECOVERY DIVISION (JACS-PC), U.S. ARMY
CLAIMS SERVICE, OTJAG, BUILDING 4411, ROOM 206, LLEWELLYN AVENUE,
FORT GEORGE G. MEADE, MD 20755-5360
(2) TORT CLAIMS DIVISION (JACS-TC), U.S. ARMY CLAIMS SERVICE,
OTJAG, BUILDING 4411, ROOM 206, LLEWELLYN AVENUE, FORT GEORGE G.
MEADE, MD 20755-5360
CONTRACT APPEALS DIVISION, HQDA(DAJA-CA), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
CONTRACT LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200 ARMY
PENTAGON, WASHINGTON, DC 20310-2200
CRIMINAL LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200 ARMY
PENTAGON, WASHINGTON, DC 20310-2200
ENVIRONMENTAL LAW DIVISION, HQDA(DAJA-EL), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
LABOR AND EMPLOYMENT LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200
ARMY PENTAGON, WASHINGTON, DC 20310-2200,
LITIGATION DIVISION, HQDA(DAJA-LT), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
(1) CIVILIAN PERSONNEL BRANCH, HQDA(DAJA-LTC), 901 NORTH STUART
STREET, ARLINGTON, VA 22203-1837
(2) GENERAL LITIGATION BRANCH, HQDA(DAJA-LTG), 901 NORTH STUART
STREET, ARLINGTON, VA 22203-1837
(3) MILITARY PERSONNEL BRANCH, HQDA(DAJA-LTM), 901 NORTH STUART
STREET, ARLINGTON, VA 22203-1837
(4) TORT BRANCH, HQDA(DAJA-LTT), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
PERSONNEL, PLANS, AND TRAINING OFFICE, THE JUDGE ADVOCATE GENERAL,
2200 ARMY PENTAGON, WASHINGTON, DC 20310-2200
PROCUREMENT FRAUD DIVISION, HQDA(DAJA-PF), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
INTELLECTUAL PROPERTY DIVISION, HQDA(JALS-IP), 901 NORTH STUART
STREET, ARLINGTON, VA 22203-1837
REGULATORY LAW OFFICE, HQDA(JALS-RL), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
THE JUDGE ADVOCATE GENERAL, 2200 ARMY PENTAGON, WASHINGTON, DC
20310-2200
THE AJAG FOR CIVIL LAW & LITIGATION, THE JUDGE ADVOCATE GENERAL,
2200 ARMY PENTAGON, WASHINGTON, DC 20310-2200
U.S. ARMY TRIAL DEFENSE SERVICE, HQDA(JALS-TD), NASSIF BUILDING,
FALLS CHURCH, VA 22041-5013
Appendix C to Part 516--Department of Defense Directive 5405.2, Release
of Official Information in Litigation and Testimony by DoD Personnel as
Witnesses
Department of Defense Directive
July 23, 1985, Number 5405.2, GC, DOD
Subject: Release of Official Information in Litigation and Testimony
by DoD Personnel as Witnesses
References:
(a) Title 5, United States Code, Sections 301, 552, and 552a
(b) Title 10, United States Code, Section 133
(c) DoD Directive 5220.6, ``Industrial Personnel Security Clearance
Program,'' December 20, 1976
(d) DoD Directive 5200.1-R, ``Information Security Program
Regulation,'' August 1982, authorized by DoD Directive 5200.1, June
7, 1982
(e) DoD Directive 5230.25, ``Withholding of Unclassified Technical
Data from Public Disclosure,'' November 6, 1984
(f) DoD Instruction 7230.7, ``User Charges,'' January 29, 1985
(g) DoD Directive 5400.7-R, ``DoD Freedom of Information Act
Program,'' December 1980, authorized by DoD Directive 5400.7, March
24, 1980
A. Purpose
Under Section 301 reference (a) and reference (b), this
Directive establishes policy, assigns responsibilities, and
prescribes procedures for the release of official DoD information in
litigation and for testimony by DoD personnel as witnesses during
litigation.
B. Applicability and Scope
1. This Directive applies to the Office of the Secretary of
Defense (OSD), the Military Departments, the Organization of the
Joint Chiefs of Staff (OJCS), the Unified and Specified Commands,
and the Defense Agencies (hereafter referred to as ``DoD
Components''), and to all personnel of such DoD Components.
2. This Directive does not apply to the release of official
information or testimony by DoD personnel in the following
situations:
a. Before courts-martial convened by the authority of the
Military Departments or in administrative proceedings conducted by
or on behalf of a DoD Component;
b. Pursuant to administrative proceedings conducted by or on
behalf of the Equal Employment Opportunity Commission (EEOC) or the
Merit Systems Protection Board (MSPB), or pursuant to a negotiated
grievance procedure under a collective bargaining agreement to which
the Government is a party;
c. In response to requests by Federal Government counsel in
litigation conducted on behalf of the United States;
d. As part of the assistance required in accordance with the
Defense Industrial Personnel Security Clearance Program under DoD
Directive 5220.6 (reference (c)); or
e. Pursuant to disclosure of information to Federal, State, and
local prosecuting and law enforcement authorities, in conjunction
with an investigation conducted by a DoD criminal investigative
organization.
3. This Directive does not supersede or modify existing laws or
DoD programs governing the testimony of DoD personnel or the release
of official DoD information during grand jury proceedings, the
release of official information not involved in litigation, or the
release of official information pursuant to the Freedom of
Information Act, 5 U.S.C. Section 552 (reference (a)) or the Privacy
Act, 5 U.S.C. Section 552a (reference (a)), nor does this Directive
preclude treating any written request for agency records that is not
in the nature of legal process as a request under the Freedom of
Information or Privacy Acts.
4. This Directive is not intended to infringe upon or displace
the responsibilities committed to the Department of Justice in
conducting litigation on behalf of the United States in appropriate
cases.
5. This Directive does not preclude official comment on matters
in litigation in appropriate cases.
6. This Directive is intended only to provide guidance for the
internal operation of the Department of Defense and is not intended
to, does not, and may not be relied upon to create any right or
benefit, substantive or procedural, enforceable at law against the
United States or the Department of Defense.
C. Definitions
1. Demand. Subpoena, order, or other demand of a court of
competent jurisdiction, or other specific authority for the
production, disclosure, or release of official DoD information or
for the appearance and testimony of DoD personnel as witnesses.
2. DoD Personnel. Present and former U.S. military personnel;
Service Academy cadets and midshipmen; and present and former
civilian employees of any Component of the Department of Defense,
including nonappropriated fund activity employees; non-U.S.
nationals who perform services overseas, under the provisions of
status of forces agreements, for the United States Armed Forces; and
other specific individuals hired through contractual agreements by
or on behalf of the Department of Defense.
3. Litigation. All pretrial, trial, and post-trial stages of all
existing or reasonably anticipated judicial or administrative
actions, hearings, investigations, or similar proceedings before
civilian courts, commissions, boards (including the Armed Services
Board of Contract Appeals), or other tribunals, foreign and
domestic. This term includes responses to discovery requests,
depositions, and other pretrial proceedings, as well as responses to
formal or informal requests by attorneys or others in situations
involving litigation.
4. Official Information. All information of any kind, however
stored, that is in the custody and control of the Department of
Defense, relates to information in the custody and control of the
Department, or was acquired by DoD personnel as part of their
official duties or because of their official status within the
Department while such personnel were employed by or on behalf of the
Department or on active duty with the United States Armed Forces.
D. Policy
It is DoD policy that official information should generally be
made reasonably available for use in Federal and state courts and by
other governmental bodies unless the information is classified,
privileged, or otherwise protected from public disclosure.
E. Responsibilities
l. The General Counsel, Department of Defense (GC, DoD), shall
provide general policy and procedural guidance by the issuance of
supplemental instructions or specific orders concerning the release
of official DoD information in litigation and the testimony of DoD
personnel as witnesses during litigation.
2. The Heads of DoD Components shall issue appropriate
regulations to implement this Directive and to identify official
information that is involved in litigation.
F. Procedures
1. Authority to Act
a. In response to a litigation request or demand for official
DoD information or the testimony of DoD personnel as witnesses, the
General Counsels of DoD, Navy, and the Defense Agencies; the Judge
Advocates General of the Military Departments; and the Chief Legal
Advisors to the JCS and the Unified and Specified Commands, with
regard to their respective Components, are authorized--after
consulting and coordinating with the appropriate Department of
Justice litigation attorneys, as required--to determine whether
official information originated by the Component may be released in
litigation; whether DoD personnel assigned to or affiliated with the
Component may be interviewed, contacted, or used as witnesses
concerning official DoD information or as expert witnesses; and
what, if any, conditions will be imposed upon such release,
interview, contact, or testimony. Delegation of this authority, to
include the authority to invoke appropriate claims of privilege
before any tribunal, is permitted.
b. In the event that a DoD Component receives a litigation
request or demand for official information originated by another
Component, the receiving Component shall forward the appropriate
portions of the request or demand to the originating Component for
action in accordance with this Directive. The receiving Component
shall also notify the requestor, court, or other authority of its
transfer of the request or demand.
c. Notwithstanding the provisions of paragraphs F.1.a. and b.,
the GC, DoD, in litigation involving terrorism, espionage, nuclear
weapons, intelligence means or sources, or otherwise as deemed
necessary, may notify Components that GC, DoD, will assume primary
responsibility for coordinating all litigation requests and demands
for official DoD information or the testimony of DoD personnel, or
both; consulting with the Department of Justice, as required; and
taking final action on such requests and demands.
2. Factors to Consider
In deciding whether to authorize the release of official DoD
information or the testimony of DoD personnel concerning official
information (hereinafter referred to as ``the disclosure'') pursuant
to paragraph F.1., DoD officials should consider the following types
of factors:
a. Whether the request or demand is unduly burdensome or
otherwise inappropriate under the applicable court rules;
b. Whether the disclosure, including release in camera, is
appropriate under the rules of procedure governing the case or
matter in which the request or demand arose;
c. Whether the disclosure would violate a statute, executive
order, regulation, or directive;
d. Whether the disclosure, including release in camera, is
appropriate or necessary under the relevant substantive law
concerning privilege;
e. Whether the disclosure, except when in camera and necessary
to assert a claim of privilege, would reveal information properly
classified pursuant to the DoD Information Security Program under
DoD 5200.1-R (reference (d)), unclassified technical data withheld
from public release pursuant to DoD Directive 5230.25 (reference
(e)), or other matters exempt from unrestricted disclosure; and
f. Whether disclosure would interfere with ongoing enforcement
proceedings, compromise constitutional rights, reveal the identity
of an intelligence source or confidential informant, disclose trade
secrets or similarly confidential commercial or financial
information, or otherwise be inappropriate under the circumstances.
3. Decisions on Litigation Requests and Demands
a. Subject to paragraph F.3.e., DoD personnel shall not, in
response to a litigation request or demand, produce, disclose,
release, comment upon, or testify concerning any official DoD
information without the prior written approval of the appropriate
DoD official designated in paragraph F.1. Oral approval may be
granted, but a record of such approval shall be made and retained in
accordance with the applicable implementing regulations.
b. If official DoD information is sought, through testimony or
otherwise, by a litigation request or demand, the individual seeking
such release or testimony must set forth, in writing and with as
much specificity as possible, the nature and relevance of the
official information sought. Subject to paragraph F.3.e., DoD
personnel may only produce, disclose, release, comment upon, or
testify concerning those matters that were specified in writing and
properly approved by the appropriate DoD official designated in
paragraph F.1. See United States ex rel. Touhy v. Ragen, 340 U.S.
462 (1951).
c. Whenever a litigation request or demand is made upon DoD
personnel for official DoD information or for testimony concerning
such information, the personnel upon whom the request or demand was
made shall immediately notify the DoD official designated in
paragraph F.1. for the Component to which the individual contacted
is or, for former personnel, was last assigned. In appropriate
cases, the responsible DoD official shall thereupon notify the
Department of Justice of the request or demands. After due
consultation and coordination with the Department of Justice, as
required, the DoD official shall determine whether the individual is
required to comply with the request or demand and shall notify the
requestor or the court or other authority of the determination
reached.
d. If, after DoD personnel have received a litigation request or
demand and have in turn notified the appropriate DoD official in
accordance with paragraph F.3.c., a response to the request or
demand is required before instructions from the responsible official
are received, the responsible official designated in paragraph F.1.
shall furnish the requestor or the court or other authority with a
copy of this Directive and applicable implementing regulations,
inform the requestor or the court or other authority that the
request or demand is being reviewed, and seek a stay of the request
or demand pending a final determination by the Component concerned.
e. If a court of competent jurisdiction or other appropriate
authority declines to stay the effect of the request or demand in
response to action taken pursuant to paragraph F.3.d., or if such
court or other authority orders that the request or demand must be
complied with notwithstanding the final decision of the appropriate
DoD official, the DoD personnel upon whom the request or demand was
made shall notify the responsible DoD official of such ruling or
order. If the DoD official determines that no further legal review
of or challenge to the court's ruling or order will be sought, the
affected DoD personnel shall comply with the request, demand, or
order. If directed by the appropriate DoD official, however, the
affected DoD personnel shall respectfully decline to comply with the
demand. See United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951).
4. Fees
Consistent with the guidelines in DoD Instruction 7230.7
(reference (f)), the appropriate officials designated in paragraph
F.1. are authorized to charge reasonable fees, as established by
regulation and to the extent not prohibited by law, to parties
seeking, by request or demand, official DoD information not
otherwise available under the DoD Freedom of Information Act Program
(reference (g)). Such fees, in amounts calculated to reimburse the
Government for the expense of providing such information, may
include the costs of time expended by DoD employees to process and
respond to the request or demand; attorney time for reviewing the
request or demand and any information located in response thereto
and for related legal work in connection with the request or demand;
and expenses generated by materials and equipment used to search
for, produce, and copy the responsive information. See Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340 (1978).
5. Expert or Opinion Testimony
DoD personnel shall not provide, with or without compensation,
opinion or expert testimony concerning official DoD information,
subjects, or activities, except on behalf of the United States or a
party represented by the Department of Justice. Upon a showing by
the requestor of exceptional need or unique circumstances and that
the anticipated testimony will not be adverse to the interests of
the Department of Defense or the United States, the appropriate DoD
official designated in paragraph F.1. may, in writing, grant special
authorization for DoD personnel to appear and testify at no expense
to the United States. If, despite the final determination of the
responsible DoD official, a court of competent jurisdiction, or
other appropriate authority, orders the appearance and expert or
opinion testimony of DoD personnel, the personnel shall notify the
responsible DoD official of such order. If the DoD official
determines that no further legal review of or challenge to the
court's order will be sought, the affected DoD personnel shall
comply with the order. If directed by the appropriate DoD official,
however, the affected DoD personnel shall respectfully decline to
comply with the demand. See United States ex rel. Touhy v. Ragen,
340 U.S. 462 (1951).
G. Effective Date and Implementation
This Directive is effective immediately. Forward two copies of
implementing documents to the General Counsel, DoD, within 120 days.
Signed by William H. Taft, IV
Deputy Secretary of Defense.
Appendix D to Part 516--Department of Defense Directive 7050.5,
Coordination of Remedies for Fraud and Corruption Related to
Procurement Activities
Department of Defense Directive
June 7, 1989, Number 7050.5, IG, DOD
Subject: Coordination of Remedies for Fraud and Corruption Related
to Procurement Activities
References:
(a) DoD Directive 7050.5, subject as above, June 28, 1985 (hereby
canceled)
(b) Public Law 97-291, ``The Victim and Witness Protection Act of
1982,'' October 12, 1982
(c) Defense FAR Supplement (DFARS), Subpart 4.6, ``Contract
Reporting''
(d) DoD Instruction 4105.61, ``DoD Procurement Coding Manual,'' May
4, 1973
(e) DoD 4105.61-M, ``Procurement Coding Manual'' (Volume I), October
1988, authorized by DoD Instruction 4105.61 May 4, 1973
A. Reissuance and Purpose
This Directive reissues reference (a) to update policies,
procedures, and responsibilities for the coordination of criminal,
civil, administrative, and contractual remedies stemming from
investigation of fraud or corruption related to procurement
activities. More effective and timely communication of information
developed during such investigations will enable the Department of
Defense to take the most appropriate of the available measures.
B. Applicability
This Directive applies to the Office of the Secretary of Defense
(OSD); the Inspector General, Department of Defense (IG, DoD); the
Military Departments; the Defense Agencies; and the DoD Field
Activities (hereafter referred to collectively as ``DoD
Components'').
C. Definitions
1. DoD Criminal Investigative Organizations. Refers to the U.S.
Army Criminal Investigation Command; the Naval Investigative Service
Command; the U.S. Air Force Office of Special Investigations; and
the Defense Criminal Investigative Service, Office of the IG, DoD
(OIG, DoD).
2. Significant. Refers to all fraud cases involving an alleged
loss of $100,000, or more; all corruption cases related to
procurement that involved bribery, gratuities, or conflicts of
interest; and any investigation into defective products or product
substitution in which a SERIOUS HAZARD to health, safety, or
operational readiness is indicated, regardless of loss value.
D. Policy
It is DoD policy that:
1. Each of the DoD Components shall monitor, from its inception,
all significant investigations of fraud or corruption related to
procurement activities affecting its organizations, for the purpose
of ensuring that all possible criminal, civil, administrative, and
contractual remedies in such cases are identified to cognizant
procurement and command officials and that appropriate remedies are
pursued expeditiously. This process shall include appropriate
coordination with all other affected DoD Components.
2. All investigations of fraud or corruption related to
procurement activities shall be reviewed to determine and implement
the appropriate contractual and administrative actions that are
necessary to recover funds lost through fraud or corruption and to
ensure the integrity of DoD programs and operations.
3. Appropriate civil, contractual, and administrative actions,
including those set forth in enclosure 1, shall be taken
expeditiously. During an investigation and before prosecution or
litigation, and when based in whole or in part on evidence developed
during an investigation, such actions shall be taken with the
advance knowledge of the responsible DoD criminal investigative
organization and, when necessary, the appropriate legal counsel in
the Department of Defense and the Department of Justice (DoJ). When
appropriate, such actions shall be taken before final resolution of
the criminal or civil case.
E. Responsibilities
1. The Heads of DoD Components shall:
a. Establish a centralized organization (hereafter referred to
as ``the centralized organization'') to monitor and ensure the
coordination of criminal, civil, administrative, and contractual
remedies for each significant investigation of fraud or corruption
related to procurement activities affecting the DoD Component.
b. Establish procedures requiring the centralized organization
to discuss regularly with the assigned DoD criminal investigative
organization(s) such issues as the current status of significant
investigations and their coordination with prosecutive authorities.
c. Establish procedures requiring that all coordination
involving the DoJ, during the pendency of a criminal investigation,
is accomplished by or with the advance knowledge of the appropriate
DoD criminal investigative organization(s).
d. Establish procedures to ensure appropriate coordination of
actions between the centralized organizations of any DoD Components
affected by a significant investigation of fraud or corruption
related to procurement activities.
e. Establish procedures to ensure that all proper and effective
civil, administrative, and contractual remedies available to the
Department of Defense are, when found applicable and appropriate,
considered and undertaken promptly by the necessary DoD officials
(e.g., commanders, programs officials, and contracting officers).
This includes initiation of any suspension and debarment action
within 30 days of an indictment or conviction. The centralized
organization shall ensure that all proposed actions are coordinated
with appropriate investigative organization.
f. Establish procedures to ensure that a specific comprehensive
remedies plan is developed for each significant investigation
involving fraud or corruption related to procurement activities.
These procedures shall include the participation of the appropriate
DoD criminal investigative organization in the development of the
plan.
g. Establish procedures to ensure that in those significant
investigations of fraud or corruption related to procurement
activities when adverse impact on a DoD mission can be determined,
such adverse impact is identified and documented by the centralized
organization. This information is to be used by the centralized
organization of the DoD Component concerned in development of the
remedies plan required in paragraph E.1.f., above, and shall be
furnished to prosecutors as stated in paragraph E.2.e., below. The
information shall also be used by the centralized organizations in
development and preparation of ``Victim Impact Statements'' for use
in sentencing proceedings, as provided for P.L. 97-291 (reference
(b)). Some examples of adverse impact on a DoD mission are as
follows:
(1) Endangerment of personnel or property.
(2) Monetary loss.
(3) Denigration of program or personnel integrity.
(4) Compromise of the procurement process.
(5) Reduction or loss of mission readiness.
h. Ensure training materials are developed on fraud and
corruption in the procurement process, and that all procurement and
procurement-related training includes a period of such instruction
appropriate to the duration and nature of the training.
i. Establish procedures enabling the centralized organization to
ensure that safety and readiness issues are examined and
appropriately dealt with for all cases in which a notice is required
under paragraph E.2.i., below. The minimum procedures to be followed
by the centralized organization are in enclosure 3.
j. Ensure that appropriate command, procurement, and
investigative organizations are provided sufficient information to
determine if further inquiry is warranted on their part to prevent
reoccurrence and detect other possible fraud within their activity.
2. The Secretaries of the Military Departments and the Inspector
General, Department of Defense (IG, DoD), or their designees, shall
establish procedures that ensure that their respective criminal
investigative organizations will:
a. Notify, in writing, the centralized organization for the
affected DoD Component of the start of all significant
investigations involving fraud or corruption that are related to
procurement activities. Initial notification shall include the
following elements:
(1) Case title.
(2) Case control number.
(3) Investigative agency and office of primary responsibility.
(4) Date opened.
(5) Predication.
(6) Suspected offense(s).
b. Notify expeditiously the Defense Investigative Service (DIS)
of any investigations that develop evidence that would impact on
DoD-cleared industrial facilities or personnel.
c. Discuss regularly with the centralized organization such
issues as the current status of significant investigations and their
coordination with prosecutive authorities. If the DoD criminal
investigative organization has prepared any documents summarizing
the current status of the investigation, such documents shall be
provided to the centralized organization. Completed reports of
significant investigations also should be provided to the
centralized organization.
d. Provide to the appropriate procurement officials, commanders,
and suspension and debarment authorities, when needed to allow
consideration of applicable remedies, any court records, documents,
or other evidence of fraud or corruption related to procurement
activities. Such information shall be provided in a timely manner to
enable the suspension and debarment authority to initiate suspension
and debarment action within 30 days of an indictment or conviction.
e. Provide expeditiously to prosecutive authorities the
information regarding any adverse impact on a DoD mission, that is
gathered under paragraph E.1.g., above, for the purpose of enhancing
the prosecutability of a case. Such information also should be used
in preparing a victim impact statement for use in sentencing
proceedings as provided for in Public Law 97-291.
f. Gather, at the earliest practical point in the investigation,
without reliance on grand jury subpoenas whenever possible, relevant
information concerning responsible individuals, the organizational
structure, finances, and contract history of DoD contractors under
investigation for fraud or corruption related to procurement
activities, to facilitate the criminal investigation as well as any
civil, administrative, or contractual actions or remedies that may
be taken. Some available sources of such information are listed in
enclosure 2.
g. Provide timely notice to other cognizant DoD criminal
investigative organizations of evidence of fraud by a contractor,
subcontractor, or employees of either, on current or past contracts
with, or affecting, other DoD Components.
h. Ascertain the impact upon any ongoing investigation or
prosecution of civil, contractual, and administrative actions being
considered and advise the appropriate centralized organization of
any adverse impact.
i. Obtain a DD 350 report in every investigation into defective
products or product substitution in which a SERIOUS HAZARD to
health, safety, or operational readiness is indicated. Timely
notification shall be made to the centralized organization of each
DoD Component that is identified as having contract actions with the
subject of the investigation.
j. Obtain a DD 350 report in all significant fraud
investigations, as defined in subsection C.2. above, whether or not
the case involved defective products or product substitution. Timely
notification shall be made to the centralized organization of each
DoD Component that is identified as having contract actions with the
subject of the investigation.
3. The Inspector General, Department of Defense (IG, DoD),
shall:
a. Develop training materials relating to fraud and corruption
in procurement related activities which shall be utilized in all
procurement related training in conjunction with training materials
developed by the DoD Components. (See paragraph E.1.h., above.)
b. Establish procedures for providing to the DoD criminal
investigative organizations, through the Office of the Assistant
Inspector General for Auditing (OAIG-AUD), reports of data contained
in the Individual Procurement Action Report (DD Form 350) System.
F. Procedures
Transmissions of information by DoD criminal investigative
organizations required by subsection E.2., above, shall be made as
expeditiously as possible, consistent with efforts not to compromise
any ongoing criminal investigation. The transmission of the
information may be delayed when, in the judgment of the head of the
DoD criminal investigative organization, failure to delay would
compromise the success of any investigation or prosecution. The
prosecutive authorities dealing with the investigation shall be
consulted, when appropriate, in making such determinations.
G. Effective Date and Implementation
This Directive is effective immediately. Forward two copies of
implementing documents to the Inspector General, Department of
Defense, within 120 days.
Donald J. Atwood,
Deputy Secretary of Defense.
Enclosures--3
1. Civil Contractual and Administrative Actions That Can Be
Taken in Response to Evidence of Procurement Fraud
2. Sources of Information Relating to Government Contractors
3. Actions to be Taken in Product Substitution Investigations
Civil, Contractual, and Administrative Actions That Can Be Taken in
Response to Evidence of Procurement Fraud
A. Civil
1. Statutory
a. False Claims Act (31 USC 3729 et seq.).
b. Anti-Kickback Act (41 USC 51 et seq.).
c. Voiding Contracts (18 USC 218).
d. Truth in Negotiations Act (10 USC 2306(f)).
e. Fraudulent Claims-Contract Disputes Act (41 USC 604)
2. Nonstatutory
a. Breach of contract.
b. Breach of warranty.
c. Money paid under mistake of fact.
d. Unjust enrichment.
e. Fraud and/or Deceit.
f. Conversion.
g. Recision and/or Cancellation.
h. Reformation.
i. Enforcement of performance bond/guarantee agreement.
3. Contractual
a. Termination of contract for default.
b. Termination of contract for convenience of Government.
c. Termination for default and exemplary damages under the
gratuities clause.
d. Recision of contract.
e. Contract warranties.
f. Withholding of payments to contractor.
g. Offset of payments due to contractor from other contracts.
h. Price reduction.
i. Correction of defects (or cost of correction).
j. Refusal to accept nonconforming goods.
k. Revocation of acceptance.
l. Denial of claims submitted by contractors.
m. Disallowance of contract costs.
n. Removal of the contractor from automated solicitation or
payment system.
4. Administrative
a. Change in contracting forms and procedures.
b. Removal or reassignment of Government personnel.
c. Review of contract administration and payment controls.
d. Revocation of warrant contracting officer.
e. Suspension of contractor and contractor employees.
f. Debarment of contractor and contractor employees.
g. Revocation of facility security clearances.
h. Nonaward of contract based upon a finding of contractor
nonresponsibility.
i. Voluntary refunds.
Sources of Information Relating to Government Contractors
------------------------------------------------------------------------
Type of information Possible source
------------------------------------------------------------------------
Location, dollar value, type, and a. DD Form 350 Report.\1\
number of current contracts with b. Defense Logistics Agency's (DLA)
the Department of Defense. ``Contract Administration Defense
Logistics Agency's (DLA) Contract
Administration Report (CAR Report)
on contracts DLA administers.
2. Financial status of corporation, a. Dunn and Bradstreet Reports.
history of corporation, owners, b. Corporate filings with local
and officers. secretaries of the State, or
corporate recorders.
c. Securities and Exchange
Commission (public corporations).
d. Small Business Administration
(SBA) (small businesses).
e. General Accounting Office (bid
protests, and contractors indebted
to the Government).
f. Armed Services Board of Contract
Appeals (ASBCA) or court
litigation.
g. List of Contractors Indebted to
the United States (maintained,
published and distributed by the
U.S. Army Finance and Accounting
Center, Indianapolis, Indiana
46249).
3. Security clearance background a. Defense Investigative Service.
information on facility and
officers.
4. Performance history of a. Local contracting officers.
contractor.
b. Defense Contract Administration
Service preaward surveys.
c. SBA Certificate of Competency
records.
5. Name, location, offense alleged, DLA Automated Criminal Case
and previous investigative efforts Management System. (Available
involving DLA-awarded or DLA- through field offices of the DLA
administered contracts. Counsel's office.)
6. Bid protests, litigation, and Field offices of the DLA Counsel's
bankruptcy involving DLA-awarded office.
or DLA-administered contracts.
------------------------------------------------------------------------
\1\A determination as to the contract history of any DoD contractor with
contracts in excess of $25,000 annually can be made through a review
of the ``Individual Procurement Action Report'' (DD Form 350) system,
as prescribed by Subpart 4.6 of the DoD FAR Supplement, DoD
Instruction 4105.61, and DoD 4105.61-M (references (c), (d), and (e)).
Actions to be Taken in Product Substitution Investigations
A. The centralized organization, in all cases involving
allegations of product substitution in which a SERIOUS HAZARD to
health, safety, or operational readiness is indicated shall:
1. Review the notice of the case immediately after receiving it
from the Defense criminal investigative organization. Review the
notice to determine any potential safety or readiness issues
indicated by the suspected fraud.
2. Notify all appropriate safety, procurement, and program
officials of the existence of the case.
3. Obtain a complete assessment from safety, procurement, and
program officials of the adverse impact of the fraud on DoD programs
and operations.
4. Ensure that the DoD Component provides the Defense criminal
investigative organization with full testing support to completely
identify the defective nature of the substituted products. Costs
associated with the testing shall be assumed by the appropriate
procurement program.
5. Prepare a comprehensive impact statement describing the
adverse impact of the fraud on DoD programs for use in any criminal,
civil, or contractual action related to the case.
B. In all cases involving allegations of product substitution
that affect more than one DoD Component, that centralized
organizations of the affected DoD Components shall identify a lead
Agency. The lead centralized organization shall ensure that
information on the fraud is provided to the centralized organization
of all other affected DoD Components. The lead centralized
organization shall ensure compliance with the requirements of
section A., above. The lead centralized organization shall then be
responsible for preparing a comprehensive ``Victim Impact
Statement'' as required by paragraph E.1.g. of this Directive.
C. In all cases involving allegations of product substitution,
the Defense Criminal Investigative Organization shall:
1. Immediately notify the appropriate centralized organization
of the beginning of the case.
2. Continue to provide to the centralized organization any
information developed during the course of the investigation that
indicates substituted products have been, or might be, provided to
the Department of Defense.
3. Ensure that any request for testing of substituted products
is provided to the centralized organization.
Appendix E to Part 516--Department of Defense Directive 5505.5,
Implementation of the Program Fraud Civil Remedies Act
DOD Directive 5505.5 is contained in 32 CFR Part 277.
Appendix F to Part 516--Glossary
Abbreviations
AAFES: Army and Air Force Exchange Service
AMEDD: Army Medical Department
AFARS: Army Federal Acquisition Regulation Supplement
ASBCA: Armed Services Board of Contract Appeals
AUSA: Assistant United States Attorney
CFR: Code of Federal Regulations
COE: United States Army Corps of Engineers
DA: Department of the Army
DFARS: Defense Federal Acquisition Regulation Supplement
DOD: Department of Defense
DOJ: Department of Justice. In this regulation, reference to DOJ
means either United States Attorneys' Offices or The (main)
Department of Justice in Washington, DC
DCIS: Defense Criminal Investigative Service
e.g.: An abbreviation for exempli gratia, meaning ``for example''
et seq.: An abbreviation for et sequentes, meaning ``and the
following''
FAR: Federal Acquisition Regulation
FAX: Facsimile Transmission
FBI: Federal Bureau of Investigation
Fed. R. Civ. P.: Federal Rules of Civil Procedure
Fed. R. Crim. P.: Federal Rules of Criminal Procedure
FOIA: Freedom of Information Act
GAO: General Accounting Office
HQDA: Headquarters, Department of the Army
i.e.: An abbreviation for id est, meaning ``that is''
IG: Inspector General
JA: Judge Advocate
MACOM: Major Command
MSPB: Merit Systems Protection Board
NAF: Nonappropriated Fund
OTJAG: Office of The Judge Advocate General
OSC: Office of Special Counsel
PFA: Procurement Fraud Advisor
PFCRA: Program Fraud Civil Remedies Act
PFD: Procurement Fraud Division
PFI: Procurement Fraud or Irregularities
RJA: Recovery Judge Advocate
SAUSA: Special Assistant U.S. Attorney
SJA: Staff Judge Advocate
TDY: temporary Duty
TJAG: The Judge Advocate General
UCMJ: Uniform Code of Military Justice
USACIDC: U.S. Army Criminal Investigation Command
USALSA: U.S. Army Legal Services Agency
USARCS: U.S. Army Claims Service
USATDS: U.S. Army Trial Defense Service
USMA: United States Military Academy
U.S.C.: United States Code
Terms
Active Duty
Full-time duty in the active military service of the United
States. Includes: full-time training duty; annual training duty;
active duty for training; attendance, while in the active military
service, at a school designated as a Service School by law or by the
Secretary of the military department concerned; and, attendance,
while in the active military service, at advanced civil schooling
and training with industry. It does not include full-time National
Guard duty under Title 32, United States Code.
Army Activities
Activities of or under the control of the Army, one of its
instrumentalities, or the Army National Guard, including activities
for which the Army has been designated the administrative agency,
and those designated activities located in an area in which the Army
has been assigned single service claims responsibility by DOD
directive.
Army Property
Real or personal property of the United States or its
instrumentalities and, if the United States is responsible
therefore, real or personal property of a foreign government which
is in the possession or control of the Army, one of its
instrumentalities, or the Army National Guard, including property of
an activity for which the Army has been designated the
administrative agency, and property located in an area in which the
Army has been assigned single service claims responsibility.
Centralized Organization
That organization of a DOD component responsible for
coordinating and monitoring of criminal, civil, contractual, and
administrative remedies relating to contract fraud. For DOD
components other than the Army, the Centralized organizations are as
follows: the Office of General Counsel, Department of the Air Force;
the Office of the Inspector General, Department of the Navy; and the
Office of General Counsel, Defense Logistics Agency.
Claim
The Government's right to recover money or property from any
individual, partnership, association, corporation, governmental
body, or other legal entity (foreign and domestic) except an
instrumentality of the United States. A claim against several joint
debtors or tortfeasors arising from a single transaction or incident
will be considered one claim.
Claims Officer
A commissioned officer, warrant officer, or qualified civilian
employee designated by the responsible commander and trained or
experienced in the conduct of investigations and the processing of
claims.
Corruption
Practices that include, but are not limited to, solicitation,
offer, payment, or acceptance of bribes or gratuities; kickbacks;
conflicts of interest; or unauthorized disclosure of official
information related to procurement matters.
Counsel for Consultation
An attorney, provided by DA at no expense to the military member
or civilian employee, who will provide legal advice to the witness
concerning the authority of OSC, the nature of an OSC interview and
their individual rights and obligations. The counsel may accompany
the witness to the interview and advise the witness during the
interview. No attorney-client relationship is established in this
procedure.
Counsel for Representation
An attorney, provided by DA at no expense to the military member
or civilian employee, who will act as the individual's lawyer in all
contacts with the MSPB and the OSC during the pendancy of the OSC
investigation and any subsequent OSC initiated action before the
MSPB. An attorney-client relationship will be established between
the individual and counsel for representation.
DA Personnel
DA personnel includes the following:
a. Military and civilian personnel of the Active Army and The
U.S. Army Reserve.
b. Soldiers of the Army National Guard of the United States
(Title 10, U.S.C.) and, when specified by statute or where a Federal
interest is involved, soldiers in the Army National Guard (Title 32,
U.S.C.). It also includes technicians under 32 U.S.C. 709(a)(d).
c. USMA cadets.
d. Nonappropriated fund employees.
e. Foreign nationals who perform services for DA overseas.
f. Other individuals hired by or for the Army.
Debarment
Administrative action taken by a debarring authority to exclude
a contractor from Government contracting and Government-approved
subcontracting for a specified period.
Deciding Official (Chapter 7)
SJA, legal adviser, or Litigation Division attorney who makes
the final determination concerning release of official information.
DOD Criminal Investigation Organizations
Refers to the USACIDC; the Naval Investigative Service; the U.S.
Air Force Office of Special Investigations; and the Defense Criminal
Investigative Service, Office of the Inspector General, DOD.
Fraud
Any intentional deception of DOD (including attempts and
conspiracies to effect such deception) for the purpose of inducing
DOD action or reliance on that deception. Such practices include,
but are not limited to, the following: bid-rigging; making or
submitting false statements; submission of false claims; use of
false weights or measures; submission of false testing certificates;
adulterating or substituting materials; or conspiring to use any of
these devices.
Improper or Illegal Conduct
a. A violation of any law, rule, or regulation in connection
with Government misconduct; or
b. Mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or safety.
Information Exempt From Release To The Public
Those categories of information which may be withheld from the
public under one or more provisions of law.
Judge Advocate
An officer so designated (AR 27-1).
Legal Adviser
A civilian attorney who is the principal legal adviser to the
commander or operating head of any Army command or agency.
Litigation
Legal action or process involving civil proceedings, i.e.,
noncriminal.
Litigation in Which The United States Has an Interest
a. A suit in which the United States or one of its agencies or
instrumentalities has been, or probably will be, named as a party.
b. A suit against DA personnel and arises out of the
individual's performance of official duties.
c. A suit concerning an Army contract, subcontract, or purchase
order under the terms of which the United States may be required to
reimburse the contractor for recoveries, fees, or costs of the
litigation.
d. A suit involving administrative proceedings before Federal,
state, municipal, or foreign tribunals or regulatory bodies that may
have a financial impact upon the Army.
e. A suit affecting Army operations or which might require,
limit, or interfere with official action.
f. A suit in which the United States has a financial interest in
the plaintiff's recovery.
g. Foreign litigation in which the United States is bound by
treaty or agreement to ensure attendance by military personnel or
civilian employees.
Medical Care
Includes hospitalization, outpatient treatment, dental care,
nursing service, drugs, and other adjuncts such as prostheses and
medical appliances furnished by or at the expense of the United
States.
Misdemeanor
An offense for which the maximum penalty does not exceed
imprisonment for 1 year. Misdemeanors include those offenses
categorized as petty offenses (18 USC Sec. 3559).
Official Information
All information of any kind, however stored, that is in the
custody and control of the Department of Defense, relates to
information in the custody and control of the Department, or was
acquired by DoD personnel as part of their official duties or
because of their official status within the Department while such
personnel were employed by or on behalf of the Department or on
active duty with the United States Armed Forces.
Operating Forces
Those forces whose primary missions are to participate in combat
and the integral supporting elements thereof. Within DA, the
operating forces consist of tactical units organized to conform to
tables of organization and equipment (TOE).
Personnel Action
These include--
a. Appointment.
b. Promotion.
c. Adverse action under 5 U.S.C. 7501 et seq. or other
disciplinary or corrective action.
d. Detail, transfer, or reassignment.
e. Reinstatement.
f. Restoration.
g. Reemployment.
h. Performance evaluation under 5 U.S.C. 4301 et seq.
i. Decision concerning pay, benefits, or awards, or concerning
education or training if the education or training may reasonably be
expected to lead to an appointment, promotion, performance
evaluation, or other personnel action.
j. Any other significant change in duties or responsibilities
that is inconsistent with the employee's salary or grade level.
Private Litigation
Litigation other than that in which the United States has an
interest.
Process
The legal document that compels a defendant in an action to
appear in court; e.g., in a civil case a summons or subpoena, or in
a criminal case, a warrant for arrest, subpoena or summons.
Prohibited Personnel Practice
Action taken, or the failure to take action, by a person who has
authority to take, direct others to take, recommend, or approve any
personnel action--
a. That discriminates for or against any employee or applicant
for employment on the basis of race, color, religion, sex, national
origin, age, handicapping condition, marital status, or political
affiliation, as prohibited by certain specified laws.
b. To solicit or consider any recommendation or statement, oral
or written, with respect to any individual who requests, or is under
consideration for, any personnel action, unless the recommendation
or statement is based on the personal knowledge or records of the
person furnishing it, and consists of an evaluation of the work
performance, ability, aptitude, or general qualifications of the
individual, or an evaluation of the character, loyalty, or
suitability of such individual.
c. To coerce the political activity of any person (including the
providing of any political contribution or service), or take any
action against any employee or applicant for employment as a
reprisal for the refusal of any person to engage in such political
activity.
d. To deceive or willfully obstruct any person with respect to
such person's right to compete for employment.
e. To influence any person to withdraw from competition for any
position for the purpose of improving or injuring the prospects of
any other person for employment.
f. To grant any preference or advantage not authorized by law,
rule, or regulation to any employee or applicant for employment
(including defining the scope or manner of competition or the
requirements for any position) for the purpose of improving or
injuring the prospects of any particular person for employment.
g. To appoint, employ, promote, advance, or advocate for
appointment, employment, promotion, or advancement, in or to a
civilian position any individual who is a relative (as defined in 5
U.S.C. 3110) of the employee, if the position is in the agency in
which the employee is serving as a public official or over which the
employee exercises jurisdiction or control as an official.
h. To take or fail to take a personnel action with respect to
any employee or applicant for employment as a reprisal for being a
whistleblower, as defined below.
i. To take or fail to take a personnel action against an
employee or applicant for employment as a reprisal for the exercise
of any appeal right granted by law, rule, or regulation.
j. To discriminate for or against any employee or applicant for
employment on the basis of conduct that does not adversely affect
the performance of the employee or applicant or the performance of
others.
k. To take or fail to take any other personnel action if the
taking of, or failure to take, such action violates any law, rule,
or regulation implementing, or directly concerning, the merit system
principles contained in 5 U.S.C. 2301.
Prosecutive Authorities
These include--
a. A U.S. Attorney;
b. A prosecuting attorney of a State or other political
subdivision when the U.S. Attorney has declined to exercise
jurisdiction over a particular case or class of cases; and
c. An SJA of a general court-martial convening authority
considering taking action against a person subject to the UCMJ.
Recovery JA
A JA or legal adviser responsible for assertion and collection
of claims in favor of the United States for property claims and
medical expenses.
Significant Case of Fraud and Corruption
A procurement fraud case involving an alleged loss of $100,000
or more; all corruption cases related to procurement that involve
bribery, gratuities, or conflicts of interest; any defective
products or product substitution in which a serious hazard to
health, safety or operational readiness is indicated, regardless of
loss value; and, any procurement fraud case that has received or is
expected to receive significant media coverage.
Staff Judge Advocate
An officer so designated (AR 27-1). The SJA of an installation,
a command or agency reporting directly to HQDA, or of a major
subordinate command of the U.S. Army Materiel Command, and the
senior Army JA assigned to a joint or unified command.
Subpoena
A process to cause a witness to appear and give testimony, e.g.,
at a trial, hearing, or deposition.
Suspension
Administrative action taken by a suspending authority to
temporarily exclude a contractor from Government contracting and
Government-approved subcontracting.
Suspension and Debarment Authorities
Officials designated in DFARS, section 9.403, as the authorized
representative of the Secretary concerned.
Tortfeasor
A wrongdoer; one who commits a tort.
Appendix G to Part 516--Figures
This appendix contains figures cited or quoted throughout the
text of this part.
Figure C-1. Sample Answer to Judicial Complaint, With Attached
Certificate of Service
In the United States District Court for the Southern District of
Texas Corpus Christi Division, No. C-90-100
John Doe, Plaintiff v. Togo D. West, Jr., Secretary of the Army,
Department of the Army, Defendant.
First Affirmative Defense
The Complaint is barred by laches.
Figure C-3. Sample Answer to Judicial Complaint, with attached
Certificate of Service. This is intended to be used as a guide in
preparing a draft Answer as part of a Litigation Report.
Answer
For its answer to the complaint, defendant admits, denies and
alleges as follows:
1. Admits.
2. Denies.
3. Denies.
4. The allegations contained in paragraph 4 are conclusions of
law to which no response is required; to the extent they may be
deemed allegations of fact, they are denied.
5. Denies the allegations contained in the first sentence of
paragraph 5; admits the allegations contained in the second sentence
of paragraph 5; denies the remainder of the allegations in paragraph
5.
6. Denies the allegations in paragraph 6 for lack of knowledge
or information sufficient to form a belief as to their truth.
7. Denies each allegation in the complaint not specifically
admitted or otherwise qualified.
Prayer for Relief
The remainder of plaintiff's Complaint contains his prayer for
relief, to which no answer is required. Insofar as an answer is
required, denies that plaintiff is entitled to any relief
whatsoever.
Defendant respectfully prays that the Court dismiss plaintiff's
Complaint and award to defendant costs and such further relief as
the Court deems proper.
Respectfully submitted,
Ronald M. Ford,
United States Attorney.
Roy A. Andersen,
Assistant United States Attorney, 606 N. Carancua, Corpus Christi,
Texas 78476, (512) 884-3454.
Captain Christopher N. Jones,
Department of the Army, Office of the Judge, Advocate General, 901 N.
Stuart St., Suite 400, Arlington, Virginia 22203-1837, (703) 696-1666.
Certificate of Service
I hereby certify that a true and correct copy of Defendant's
Answer has been placed in the mail, postage prepaid, this ____ day
of __________, 1991, addressed to plaintiff's counsel as follows:
Mr. Eugene Henderson, 777 Fourth Street, Corpus Christi, TX 78888.
Roy A. Andersen,
Assistant United States Attorney.
Sample DA Form 4
Figure C-3. Unsworn Declaration Under Penalty of Perjury Executed
Within the United States
Declaration Under Penalty of Perjury
I am Private Paul Jones, currently assigned to Company B, 4th
Battalion, 325th Parachute Infantry Regiment, Fort Bragg, North
Carolina. I have personal knowledge of the following matters.
On the evening of 3 June 1970, I was present at the company
party at Lake Popolopen when the accident occurred. I saw a bright,
full moon that evening.
I declare under penalty of perjury that the foregoing is true
and correct. (28 U.S.C. Sec. 1746).
Executed on: __________
Paul Jones,
Private, U.S. Army.
Figure D-1. Format for a Request for a Representation Using an
Unsworn Declaration Under Penalty of Perjury Executed Within the
United States
Request for Representation
I request that the Attorney General of the United States, or his
agent, designate counsel to defend me in my official and individual
capacities in the case of John Doe v. Private Paul Jones, now
pending in the U.S. District Court for the Eastern District of North
Carolina. I have read the complaint filed in this case and I declare
that all my actions were performed in my official capacity, within
the scope of my official duties, and in a good faith belief that my
actions conformed to the law. I am not aware of any pending related
criminal investigation.
I understand the following: if my request for representation is
approved, I will be represented by a U.S. Department of Justice
attorney; that the United States is not required to pay any final
adverse money judgment rendered against me personally, although I
can request indemnification; that I am entitled to retain private
counsel at my own expense; and, that the Army expresses no opinion
whether I should or should not retain private counsel.
I declare under penalty of perjury that the foregoing is true
and correct. (28 U.S.C. Sec. 1746).
Executed on: __________
Paul Jones,
Private, U.S. Army.
Figure D-2. Format for Scope of Employment Statement Using an
Unsworn Declaration Under Penalty of Perjury Executed Outside the
United States
Declaration
I am currently the Commander of HHC, 6th Armored Division, Bad
Vilbel, Germany. I have read the allegations concerning Private Paul
Jones in the complaint of John Doe v. Private Paul Jones, now
pending in the U.S. District Court for the Eastern District of North
Carolina.
At all times relevant to the complaint, I was Private Jones'
company commander. His actions relevant to this case were performed
within the scope of his official duties as Assistant Charge of
Quarters, Company B, 4th Battalion, 325th Parachute Infantry
Regiment, Fort Bragg, North Carolina.
I declare under penalty of perjury under the laws of the United
States of America that the foregoing is true and correct. (28 U.S.C.
Sec. 1746).
Executed on: __________
John Smith,
Captain, Infantry.
Figure D-3. Format for Contractor Request for Representantion
Request for Representation
I am the President of the XYZ Corporation. I request the
Attorney General of the United States designate counsel to defend me
and my company in Doe v. XYZ, Inc., now pending in the U.S. District
Court for the Eastern District of North Carolina.
I understand that the assumption by the Attorney General of the
defense of this case does not alter or increase the obligations of
the United States under United States Contract No. WP-70-660415.
I further agree that such representation will not be construed
as waiver or estoppel to assert any rights which any interested
party may have under said contract.
Executed on: __________
D.D. Tango,
President, XYZ, Inc.
Figure G-1. Sample ``Touhy'' Compliance Letter
Department of the Army, Office of the Staff Judge Advocate, Fort Smith,
North Dakota 84165, 15 April 1993
Mr. T. Hudson Taylor,
Attorney At Law, 105 Hay Street, Whynot, ND 84167
Dear Mr. Taylor: We have learned that you subpoenaed Captain
Roberta Selby to testify at a deposition in the case Kramer v.
Kramer, currently filed in state court, and that you directed her to
bring her legal assistance file concerning her client, SSG Kramer.
Under 32 CFR Secs. 97.6(c), 516.35, and 516.40, the Army must
authorize the appearance of its personnel or the production of
official documents in private litigation. In this case, the Army
cannot authorize Captain Selby to appear or produce the requested
file absent the following:
You must request in writing her appearance and the production of
the file in accordance with Department of Defense directives, 32 CFR
Sec. 97.6(c), and Army regulations, 32 CFR Secs. 516-34--516.40. The
request must include the nature of the proceeding, 32 CFR
Sec. 516.34(b), and the nature and relevance of the official
information sought. Id. Sec. 516.35(d). We cannot act on your
request until we receive the required information. See, for example,
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951); Boron Oil
Co. v. Downie, 873 F.2d 67 (4th Cir. 1989); United States v.
Bizzard, 674 F.2d 1382 (11th Cir. 1982); United States v. Marino,
658 F.2d 1120 (6th Cir. 1981); United States v. Allen, 554 F.2d 398
(10th Cir. 1977).
To overcome Federal statutory restrictions on the disclosure of
the requested file imposed by the Privacy Act, 5 U.S.C. Sec. 552a,
you must provide either a written release authorization signed by
the individual to whom the file pertains (that is, SSG Kramer) or a
court ordered release signed by a judge of a court of competent
jurisdiction. A subpoena signed by a clerk of court, notary, or
other official is insufficient. See, for example, Doe v. DiGenova,
779 F.2d 74 (DC Cir. 1985).
In this case, because of the attorney-client relationship
between Captain Selby and SSG Kramer, you must produce a written
waiver of the attorney-client privilege from SSG Kramer. Because the
privilege may protect both documents and testimony, Captain Selby
may not divulge such information without SSG Kramer's consent. See,
for example, Rule of Professional Conduct for Army Lawyers 1.6(a).
In addition to the above requirements, Captain Selby's
supervisor must approve her absence from duty. See 32 CFR
Sec. 516.43. In this regard, we suggest you take the deposition at
Fort Smith. In any event, however, you or your client must pay all
travel expenses, as this is purely private litigation and witness'
appearance must be at no expense to the United States. See id.
Sec. 516.48(c).
Finally, if Captain Selby does appear as a witness, she may only
give factual testimony. She may not testify as an opinion or expert
witness. This limitation is based on Department of Defense and Army
policy that generally prohibits Government employees from appearing
as expert witnesses in private litigation. See id. Secs. 97.6(e),
516.42.
Our sole concern in this matter is to protect the interests of
the United States Army; the Army will not block access to witnesses
or documents to which you are lawfully entitled. So that the Army
can adequately protect its interests in this matter, I request that
you respond to this letter by 27 April 1993. If you have any
questions, please call CPT Taylor at 919-882-4500.
Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law.
Figure G-2. Sample Fact Witness Approval Letter
Department of the Army, Office of the Staff Judge Advocate, Fort Smith,
North Dakota 84165, 15 April 1993
Mr. T. Hudson Taylor,
Attorney At Law, l05 Hay Street, Whynot, ND 84167
Dear Mr. Taylor: This letter responds to your request to
interview and depose Captain Buzz Sawyer as a witness in Morgan v.
Jones. Subject to the following conditions, your request is
approved.
This grant of authority is limited to factual testimony only.
Captain Sawyer may not testify as an expert witness. This limitation
is based on Army policy prohibiting Government employees from
appearing as expert witnesses in private litigation. See 32 CFR
Sec. 516.42. Captain Sawyer may not provide official information
that is classified, privileged, or otherwise protected from public
disclosure.
The decision whether to testify in private litigation is within
the discretion of the prospective witness. This authorization is
also subject to the approval of the witness' supervisors to be
absent during the period involved. Finally, because this is private
litigation, the witness' participation must be at no expense to the
United States. See 32 CFR Sec. 516.48.
If you have any questions, please call CPT Taylor at 919-882-
4500.
Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law
Figure G-3. Sample Expert Witness Denial Letter
Department of the Army, Office of the Staff Judge Advocate, Fort Smith,
North Dakota 84165, 15 April 1993
Mr. T. Hudson Taylor,
Attorney At Law, l05 Hay Street, Whynot, ND 84167
Dear Mr. Taylor: This responds to your request for Mr. Charles
Montrose to appear as an expert witness in private litigation:
Smithers v. ABC Video. For the following reasons, the request is
denied.
Army Regulation 27-40 forbids Army personnel from providing
expert testimony in private litigation, with or without
compensation, except under the most extraordinary circumstances. See
32 CFR Secs. 97.6(e), 516.42. Several reasons support the exercise
of strict control over such witness appearances.
The Army policy is one of strict impartiality in litigation in
which the Army is not a named party, a real party in interest, or in
which the Army does not have a significant interest. When a witness
with an official connection with the Army testifies, a natural
tendency exists to assume that the testimony represents the official
view of the Army, despite express disclaimers to the contrary.
The Army is also interested in preventing the unnecessary loss
of the services of its personnel in connection with matters
unrelated to their official responsibilities. If Army personnel
testify as expert witnesses in private litigation, their official
duties are invariably disrupted, often at the expense of the Army's
mission and the Federal taxpayer.
Finally, the Army is concerned about the potential for conflict
of interest inherent in the unrestricted appearance of its personnel
as expert witnesses on behalf of parties other than the United
States. Even the appearance of such conflicts of interest seriously
undermines the public trust and confidence in the integrity of our
Government.
This case does not present the extraordinary circumstances
necessary to justify the requested witness' expert testimony. You
have demonstrated no exceptional need or unique circumstances that
would warrant (his or her) appearance. The expert testimony desired
can be secured from non-Army sources. Consequently, we are unable to
grant you an exception to the Army's policy.
If you have any questions, please call me or CPT Taylor at 919-
882-4500.
Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law.
Figure G-4. Sample of Doctor Approval Letter
Department of the Army, Office of the Staff Judge Advocate, Fort Smith,
North Dakota 84165, 15 April 1993
Mr. T. Hudson Taylor,
Attorney At Law, 105 Hay Street, Whynot, ND 84167
Dear Mr. Taylor: This responds to your request to depose Dr.
(MAJ) J. McDonald, Fort Smith Medical Treatment Facility. Pursuant
to 32 CFR Secs. 516.33-516.49, you may depose him subject to the
following conditions:
He may testify as to his treatment of his patient, Sergeant
Rock, as to related laboratory tests he may have conducted, or other
actions he took in the regular course of his duties.
He must limit his testimony to factual matters such as his
observations of the patient or other operative facts, the treatment
prescribed or corrective action taken, course of recovery or steps
required for treatment of injuries suffered, or contemplated future
treatment.
His testimony may not extend to hypothetical questions or to a
prognosis. He may not testify as an ``expert.'' This limitation is
based on Department of Defense and Army policy prohibiting present
or former military personnel and Army civilian employees from
providing opinion or expert testimony concerning official
information, subjects, or activities in private litigation. See 32
CFR Secs. 97.6(e), 516.42.
The witnesses may not provide official information that is
classified, privileged, or otherwise protected from public
disclosure. To protect the Army's interests, CPT Taylor or another
Army attorney will be present during the depositions.
To overcome restrictions imposed by the Privacy Act, 5 U.S.C.
Sec. 552a, Dr. McDonald may not discuss matters derived from the
patient's medical records absent the patient's written consent or a
court order signed by a judge. A subpoena issued by someone other
than a judge or magistrate is insufficient. See Doe v. DiGenova, 779
F.2d 74 (D.C. Cir. 1985); Stiles v. Atlanta Gas Light Co., 453 F.
Supp. 798 (N.D. Ga. 1978).
The decision whether to testify in private litigation is within
the discretion of the witness, subject to the approval of his
supervisors to be absent during the period involved.
Finally, because this is private litigation, the witnesses'
participation must be at no expense to the United States. See 32 CFR
Sec. 516.48.
If you have any questions, please call me or CPT Taylor at 919-
882-4500.
Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law.
Figure H-1. Procurement Fraud Indicators
Procurement Fraud Indicators
1. During the identification of the government and services.
a. Need determinations for items currently scheduled for
disposal or reprocurement, or which have predetermined reorder
levels.
b. Excessive purchase of ``expendables'' such as drugs or auto
parts.
c. Inadequate or vague need assessment.
d. Frequent changes in the need assessment or determination.
e. Mandatory stock levels and inventory requirements appear
excessive.
f. Items appear to be unnecessarily declared excess or sold as
surplus, while same items are being reprocured.
g. It appears that an item or service is being purchased more as
a result of aggressive marketing efforts rather than in response to
a valid requirement.
h. Need determination appears to be unnecessarily tailored in
ways that can only be met by certain contractors.
i. Items and services are continually obtained from the same
source due to an unwarranted lack of effort to develop second
sources.
2. During the development of the statements of work and
specifications.
a. Statements of work and specifications appear to be
intentionally written to fit the products or capabilities of a
single contractor.
b. Statements of work, specifications, or sole source
justifications developed by or in consultation with a preferred
contractor.
c. Information concerning requirements and pending contracts is
released only to preferred contractors.
d. Allowing companies and industry personnel who participated in
the preparation of bid packages to perform on subsequent contracts
in either a prime or subcontractor capacity.
e. Release of information by firms or personnel participating in
design or engineering to companies competing for prime contract.
f. Prequalification standards or specifications appear designed
to exclude otherwise qualified contractors or their productions.
g. Requirements appear split up to allow for rotating bids,
giving each contractor his or her ``fair share.''
h. Requirements appear split up to meet small purchase
requirements (that is, $25,000) or to avoid higher levels of
approval that would be otherwise required.
i. Bid specifications or statement of work appear inconsistent
with the items described in the general requirements.
j. Specifications appear so vague that reasonable comparisons of
estimate would be difficult.
k. Specifications appear inconsistent with previous procurements
of similar items of services.
3. During the presolicitation phase.
a. Sole source justifications appear unnecessary or poorly
supported.
b. Statements justifying sole source or negotiated procurements
appear inadequate or incredible.
c. Solicitation documents appear to contain unnecessary
requirements which tend to restrict competition.
d. Contractors or their representatives appear to have received
advanced information related to the proposed procurement on a
preferential basis.
4. During the solicitation phase.
a. Procurement appears to be processed so as to exclude or
impede certain contractors.
b. The time for submission of bids appears to be unnecessarily
limited so that only those with advance information have adequate
time to prepare bids or proposals.
c. It appears that information concerning the procurement has
been revealed only to certain contractors, without being revealed to
all prospective competitors.
d. Bidders conferences are conducted in a way that apparently
invites bid rigging, price fixing, or other improper collusion
between contractors.
e. There is an apparent intentional failure to fairly publish
notice of the solicitation.
f. Solicitation appears vague as to the details such as time,
place and manner, of submitting acceptable bids.
g. There is evidence of improper communications or social
contract between contractors and government personnel.
h. Controls over the number and destination of bid packages sent
to interested bidders appear inadequate.
i. Indications that government personnel or their families may
own stock or have some other financial interest in either a
contractor or subcontractor.
j. Indications that government personnel are discussing possible
employment for themselves or a family member with a contractor or
subcontractor or indications that a proposal for future employment
from a contractor or subcontractor to a government employee or his
or her family members has not been firmly rejected.
k. Indications that any contractor has received special
assistance in preparation of his or her bid or proposal.
l. It appears that a contract is given an expressed or implied
reference to a specific subcontractor.
m. Failure to amend solicitation to reflect necessary changes or
modifications.
5. During the submission of bids and proposals.
a. Improper acceptance of a late bid.
b. Documents, such as receipts, appear falsified to obtain
acceptance of a late bid.
c. Improperly attempting to change a bid after other bidders
prices are known.
d. Indications that mistakes have been deliberately planted in a
bid to support correction after bid opening.
e. Withdrawal by a low bidder who may later become a
subcontractor to a higher bidder who gets the contract.
f. Apparent collusion or bid rigging among the bidders.
g. Bidders apparently revealing their prices to each other.
h. Required contractor certifications appear falsified.
i. Information concerning contractor's qualifications, finances,
and capabilities appears falsified.
6. During the evaluation of bids and proposals.
a. Deliberately losing or discarding bids of certain
contractors.
b. Improperly disqualifying the bids or proposals of certain
contractors.
c. Accepting apparently nonresponsive bids from preferred
contractors.
d. Unusual or unnecessary contacts between government personnel
and contractors during solicitation, evaluation, and negotiation.
e. Any apparently unauthorized release of procurement
information to a contractor or to non-government personnel.
f. Any apparent favoritism in the evaluation of the bid or
proposal of a particular contractor.
g. Apparent bias in the evaluation criteria or in the attitude
or actions of the members of the evaluation panel.
7. During contract formation and administration.
a. Defective pricing by the contractor usually associated with
submitting false cost and pricing data under the Truth in
Negotiation Act.
b. Cost/Labor mischarging.
c. Product substitution.
d. Progress payment fraud. For more details on these subjects
see DA PAM 27-153, Contract Law, paragraph 23-5.
Figure H-2. Guide for Preparing Remedies Plan
Guide for Preparing a Remedies Plan
(Date of Plan)
Section I (Administrative Data)
A. Subject of Allegation.
B. Principal Investigative Agency.
C. Investigative Agency File Number.
D. Subject's Location.
E. Location Where Offense Took Place.
F. Responsible Action Commander.
G. Responsible MACOM.
H. Contract Administrative Data (If Applicable):
1. Contract Number.
2. Type of Contract.
3. Dollar Amount of Contract.
4. Period of Contract.
I. Principal Case Agent (Name and Telephone Number).
J. Civilian Prosecutor (If Applicable) (Name, Address, and Telephone
Number).
K. Is Grand Jury Investigating This Matter? If So, Where is Grand
Jury Located?
L. Audit Agency Involved (If Applicable). Name and Telephone Number
of Principal Auditor.
M. Suspense Date for Update of This Plan.
Section II (Summary of Allegations and Investigative Results to Date)
(Provide sufficient detail for reviewers of the plan to evaluate
the appropriateness of the planned remedies. If information is
``close-hold'' or if grand jury secrecy applies, so state.)
Section III (Adverse Impact Statement)
(Describe any adverse impact on the DA/DOD mission. Adverse
impact is described in DOD Directive 7050.5, paragraph E.1.g.
Identify impact as actual or potential. Describe the impact in terms
of monetary loss, endangerment to personnel or property, mission
readiness, etc. This information should be considered in formulating
your remedies as described below and provided to prosecutors for
their use in prosecution of the offenses.)
Section IV (Remedies Taken and/or Being Pursued)
A. Criminal Sanctions. (As a minimum, address the following: Are
criminal sanctions appropriate? If so, which ones? If not, why not?
Has the local U.S. Attorney or other civilian prosecutor been
notified and briefed? What actions have been taken or are intended?
If and when action is complete, describe action and final results of
the action. Other pertinent comments should be included.)
B. Civil Remedies. (As a minimum address the following: Which
civil remedies are appropriate? Has the local U.S. Attorney or other
civilian prosecutor been notified and briefed? How, when, where and
by whom are the appropriate civil remedies implemented? If and when
action is completed, describe action and final results. Other
pertinent comments should be included.)
C. Contractual/Administrative Remedies. (As a minimum, address
the following: Are contractual and administrative remedies
appropriate: If so, which ones? If not, Why? If contractual or
administrative remedies are considered appropriate, describe how,
when, and by whom the remedies are implemented. If and when action
is completed, describe action and results of the action. Other
pertinent comments should be included.)
D. Restrictions on Remedies Action. (Comment as to why obvious
remedies are not being pursued. For example, the U.S. Attorney
requests suspension action held in abeyance pending criminal
action.)
Section V (Miscellaneous Comments/Information)
Section VI (Remedies Plan Participants)
(Record the name, grade, organization, and telephone number of all
Remedies Plan participants.)
Section VII (MACOM Coordination Comments)
(Record the name, grade, office symbol, and telephone number of all
MACOM officials providing coordination comments; record the date
when comments are submitted and append to the Remedies Plan the
signed comments provided.)
MACOM Focal Point
(Record the name, grade, office symbol, and telephone number of the
MACOM focal point.)
Section VIII (Coordination/Comments)
(Record the name, grade, organization, office symbol, and telephone
number of all officials with whom you have coordinated the Remedies
Plan or who have provided comments on your plan; append any comments
provided to the Remedies Plan.)
Figure H-3. Guide for Testing Defective Items Under Criminal or
Civil Investigation
Testing Defective Items Under Criminal or Civil Investigation
1. Under no circumstances is testing to proceed unless the
command has committed sufficient funding to cover the entire cost of
the projected testing.
2. No testing will be initiated unless there has been a written
request for the testing to the appropriate Procurement Fraud Advisor
from a criminal investigator or Assistant United States Attorney or
Department of Justice Attorney (AUSA is used in these procedures to
indicate either an AUSA or Department of Justice attorney). If they
have not already done so, criminal investigators should be requested
to coordinate their testing requests with the AUSA overseeing the
investigation.
3. Barring extraordinary circumstances, only one test will be
conducted to support the criminal and civil recovery efforts of a
procurement fraud/irregularity matter. Early coordination with the
Civil Division of Department of Justice or the local United States
Attorneys Office is necessary to ensure that testing funds are not
wasted.
4. The request for testing should include a clear, concise
statement of the purpose of the testing to include a statement of
the allegations made and the contact number(s) involved. Any test
plan which requires destructive testing must be approved by the
AUSA.
5. No testing will be initiated unless a test plan has been
developed which states the following:
a. the contract number(s) involved
b. the National Stock Number (NSN) of the item to be tested
c. the purpose of the testing
d. the alleged defect or the contractual requirement violated
e. the CID report of investigation (ROI) number or the DCIS case
number
f. cost of the test (a cost proposal should be an attachment to the
test plan)
g. where the test will be conducted
h. how the test will be conducted
i. the name and telephone number of the test team leader
j. the names of all test team members
k. the approximate dates of the testing
l. the date that completion of the test is required
m. a clear statement of the desired product (that is test report,
raw data, analysis of results, evaluation of test results)
n. the PRON to fund the testing
o. a retention plan.
6. The test plan shall be coordinated with the concurrence
received in advance from the appropriate personnel in the
Procurement Directorate, Product Assurance and Test Directorate, the
Procurement Fraud Advisor, and the investigator/AUSA requesting the
test. No testing will be initiated until the criminal investigator/
AUSA who requested the testing has approved the test plan.
7. If the items tested are to be retained as evidence, the
criminal investigator should arrange for retention of the evidence.
While the Command will support evidence retention, this is primarily
the responsibility of the criminal investigators. Agents should be
advised that putting items in Code L or similar non-use status is
insufficient to protect it from being released to the field. A
decision not to retain the tested items as evidence must have the
approval of the AUSA.
8. All items to be tested should be from a statistically valid
random sample. The sample should conform with the inspection
requirements of the contract or be in conformance with a random
sample specifically developed for the instant test plan. It is
recommended that a statistician be consulted to determine the
feasibility of a random sample specifically created to support the
test plan.
9. Results of testing should be available to Command and DA
personnel for appropriate contractual and administrative remedies.
Any request for testing results that indicates that dissemination of
the testing results will be limited by Rule 6(e) of the Federal
Rules of Criminal Procedure is to be forwarded through the MACOM or
AMC Procurement Fraud Coordinator to DA Procurement Fraud Division
prior to the initiation of any testing.
10. Resolution of problems associated with testing requests
should be conducted at the local level. In AMC the authority to
refuse a testing request resides with the Office of Command Counsel.
Any disputes which cannot be resolved at the local level will be
forwarded to the AMC or MACOM Procurement Fraud Coordinator for
resolution. This includes disputes regarding funding or any time
sensitive issues.
11. Second requests for testing of the same item due to a change
in the investigative plan require coordination by the PFA with the
investigator and AUSA overseeing the investigation to determine the
deficiencies in the earlier test. Disputes which cannot be resolved
between the AUSA, PFA, and investigator regarding testing are to be
forwarded simultaneously to the MACOM Procurement Fraud Coordinator
and PFD for resolution. The procedures established in paragraphs 5
and 6 apply for second requests for testing with the additional
requirement that the Assistant United States Attorney must be
requested to approve the test plan.
Figure I-1. Guide for Seeking Legal Advice and Representation
Before Office of Special Counsel
Guide for Seeking Legal Advice and Representation Before Office of
Special Counsel
1. Overview
a. DA employees or military members asked to provide information
(testimonial or documentary) to OSC may obtain legal advice through
the Labor Counselor from DA attorneys concerning their rights and
obligations. This includes assistance at any interviews with OSC
investigators. However, an attorney-client relationship will not be
established unless the employee or military member--
(1) Is suspected or accused by the OSC of committing a
prohibited personnel practice or other illegal or improper act; and
(2) Has been assigned counsel by the DA General Counsel.
b. Any military member or employee who reasonably believes that
he or she is suspected or has been accused by OSC of committing a
prohibited personnel practice or other illegal or improper act may
obtain legal representation from DA. The counsel assigned will be
from another DOD component whenever a DA attorney is likely to face
a conflict between the attorney's ethical obligation to the client
and DA, or when the suspected or accused individual has requested
representation from another DOD component. Outside legal counsel may
be retained by DA on behalf of the member or employee under unusual
circumstances and only with the personal approval of the DOD General
Counsel.
c. The DA General Counsel will determine whether a conflict is
likely to occur if a DA attorney is assigned to represent a military
member or civilian. If the DA General Counsel determines a conflict
may occur, or if the suspected or accused employee has requested
representation from another DOD component, the DA General Counsel
will seek the assistance of another General Counsel in obtaining
representation outside DA.
2. Requests for Representation
a. To obtain legal representation, military members or civilian
employees must--
(1) Submit a written request for legal representation through
the Labor and Employment Law Office, Office of the Judge Advocate
General, Department of the Army, to DA General Counsel, explaining
the circumstances that justify legal representation. Copies of all
process and pleadings served should accompany the request.
(2) Indicate whether private counsel, at personal expense, has
been retained.
(3) Obtain written certification from their supervisor that--
(a) They were acting within the scope of official duties; and
(b) DA has not initiated any adverse or disciplinary action
against them for the conduct being investigated by the OSC.
b. Requests for DA legal representation must be approved by the
DA General Counsel.
c. The conditions of legal representation must be explained and
accepted in writing by the member or employee.
3. Limitations on Representation
a. DA will not provide legal representation with respect to a DA
initiated disciplinary action against a civilian employee for
committing or participating in a prohibited personnel practice or
for engaging in illegal or improper conduct. This prohibition
applies regardless of whether the participation or conduct is also
the basis for the disciplinary action proposed by the OSC.
b. In certain situations, counsel provided by DA may be limited
to representing the individual only with respect to some of the
pending matters, if other specific matters of concern to the OSC or
MSPB do not satisfy the requirements contained in this regulation.
4. Attorney-Client Relationship
a. An attorney-client relationship will be established and
continued between the suspected or accused individual and assigned
DA counsel.
b. In representing a DA employee or military member, the DA
attorney designated as counsel will act as a vigorous advocate of
the individual's legal interests before the OSC or MSPB. The
attorney's professional responsibility to DA will be satisfied by
fulfilling this responsibility to the employee or military member.
Legal representation may be terminated only with the approval of the
DA General Counsel and normally only on the basis of information not
available at the time the attorney was assigned.
c. The attorney-client relationship may be terminated if the
assigned DA counsel determines, with the approval of the DA General
Counsel, that--
(1) The military member or civilian employee was acting outside
the scope of his or her official duties when engaging in the conduct
that is the basis for the OSC investigation or charge; and
(2) Termination is not in violation of the rules of professional
conduct applicable to the assigned counsel.
d. The DA attorney designated as counsel may request relief from
the duties of representation or counseling without being required to
furnish explanatory information that might compromise confidential
communications between the client and the attorney.
5. Funding
This regulation authorizes cognizant DA officials to approve
requests from military members or civilian employees for travel, per
diem, witness appearances, or other departmental support necessary
to ensure effective legal representation by the designated counsel.
6. Status
A military member's or civilian employee's participation in OSC
investigations, MSPB hearings, and other related proceedings will be
considered official departmental business for time and attendance
requirements and similar purposes.
7. Advice to Witnesses
The following advice to military members and civilian employees
questioned during the course of an OSC investigation may be
appropriate in response to these frequent inquiries:
a. A witness may decline to provide a ``yes'' or ``no'' answer
in favor of a more qualified answer when this is necessary to ensure
accuracy in responding to an OSC interviewer's question.
b. Requests for clarification of both questions and answers are
appropriate to avoid misinterpretation.
c. Means to ensure verifications of an interview by OSC
investigators are appropriate, whether or not the military member or
civilian employee is accompanied by counsel. Tape recorders may only
be used for this purpose when--
(1) The recorder is used in full view.
(2) All attendees are informed.
(3) The OSC investigator agrees to record the proceeding.
d. Any errors that appear in a written summary of an interview
prepared by the investigator should be corrected before the member
or employee signs the statement. The military member or civilian
employee is not required to sign any written summary that is not
completely accurate. A military member or civilian employee may
receive a copy of the summary as a condition of signing.
[FR Doc. 94-17726 Filed 7-26-94; 8:45 am]
BILLING CODE 3710-08-P
