LEGALMAN (LN)

CHAPTER 1 GENERAL ADMINISTRATION, OFFICE ORGANIZATION, MANAGEMENT, AND SECURITY If you are new to the Legalman (LN) rating, you will soon learn that the scope of the rating is as broad as the Navy’s legal system. You will be required to perform many different duties to include matters pertaining to military justice, foreign claims, investigations, administrative discharges, and legal assistance. As you advance in the rating, you will find that your duties and responsibilities will be expanded to include:  Legal research and writing;  Preparing and administering office and claims budgets;  Interviewing clients and witnesses; and  Leading civilians and military personnel to become an office manager. This chapter is designed to give you an insight into the organizational makeup of Defense Service Offices (DSOs) and Region Legal Service Offices (RLSOs), and the major elements that an office manager must deal with to have an effective and well-run office. As a LN, you will probably be in charge of a Staff Judge Advocate (SJA) office, a DSO, or an RLSO division and have a title such as administrative supervisor or administrative assistant. Just because you have reached this level does not mean you can sit back and be a supervisor. To ensure an efficient office, you must be aggressively involved in its operations. Involvement is the key to effective management. Your involvement starts at the top and carries through the entire command structure. You have to know not only your command’s organizational structure but also its mission. Good office managers keep their minds open and have the ability to make changes when they are needed. Before you make any changes to your office, you must first understand exactly how it operates. Analyze the office and the functions it performs in the light of how performance can be improved. You may not be able to change the present organization, nor may you want to; however, you must understand it thoroughly. For instance, there may be many occasions where you will have to perform the work as well as supervise the work of your subordinates. After it is clear in your mind what is to be done and by whom, you may want to consider modification, consolidation, or reorganization of your office. Knowing how your office currently operates is the first step in managing it yourself. Moreover, remember that you must always consider your office’s operation within the larger context of your command’s overall mission. LEARNING OBJECTIVES Upon completing this chapter, you should be able to do the following: 1. Describe office organization and management and their importance to command mission. 2. Describe your understanding of both the mission and personnel and how they contribute to your success as a manager. 3. Be familiar with the various forms of correspondence that you may be required to draft and use. 4. Describe your role as it pertains to security clearances and investigations. 1-1

ORGANIZATION OF THE NAVAL LEGAL SERVICE COMMAND The Office of the Judge Advocate General’s Corps (OJAG’s) primary mission is to support the Judge Advocate General (JAG) in providing legal advice and policy to the Secretary of the Navy. In addition, OJAG supports JAG in advising and assisting the Chief of Naval Operations (CNO) in formulating and implementing policies and initiatives pertaining to the provision of legal services within the Navy. In this capacity he or she administers the legal services program and provides command direction for all naval legal service activities and resources. The Commander, Naval Legal Service Command (NLSC) contains two types of commands— RLSO and DSO— and has command over all RLSOs/DSOs. (Attached geographic map of RLSO/DSO)  Nine RLSO commands will prosecute court-martial cases, provide staff judge advocate advice to Navy commands, and provide legal assistance service to Sailors and their families.  Four DSO commands will focus solely on defense counsel services (court-martial defense, NJP (nonjudicial punishment) advice, PERSPEP (personal representation), and administrative separation). Each RLSO/DSO is headed by a commanding officer (CO). Most DSOs also have detachment and branch offices under them that are commanded by officers in charge (OICs). The primary purpose of the NLSC and its subordinate offices is to provide necessary legal services to commands and personnel in specified geographical areas. This service is done with a minimum of judge advocates through consolidation of available legal resources at locations with a high concentration of naval commands and personnel. It also places defense counsel under the authority of the NLSC to nullify any possibility of command control in their defense of court- martial cases. Defense Service Offices DSOs, under the command of the NLSC, are placed throughout the world to meet Navy needs. The DSOs focus solely on defense counsel services (court-martial defense, NJP advice, PERSPEP, and administrative separation). When a detachment or branch office is assigned to a DSO, these offices provide the services required to help the parent DSO meet its responsibilities. The detachment acts as an extension of the parent DSO and is directly responsible to the CO of the parent DSO. Region Legal Service Office RLSOs, their detachments, and branch offices are organized into departments and divisions that provide services in the functional areas of trial counsel, command services/administrative law, court reporting, ethics counseling, command administration, and legal assistance. RLSO provides military justice, command services and legal advice to commands and legal assistance service to Sailors and their families. Military justice advice includes matters that are prosecutorial in nature (i.e., related to the prosecution of a member of your command at court- martial). RLSOs also perform the following functions:  Provide clerical assistance in the preparation of records and board hearings;  Review court-martial records, records of investigation, and nonjudicial punishment appeals;  Provide advice on all legal matters; 1-2

 Maintain liaison with local, state, and federal courts and law enforcement agencies;  When appropriate, provide advice on admiralty matters, international law, environmental law, labor law, litigation, and jurisdictional questions; and  Provide legal assistance service to Sailors and their famili es Ship, Station, or Staff Judge Advocate Office In addition to RLSOs/DSOs and their detachments, you may work on a ship, at a station or in an SJA office, usually at the convening authority (CA) or officer exercising general court-martial jurisdiction (OEGCMJ) level. OEGCMJs are the reviewing authorities for the CAs placed under their jurisdiction. These offices are usually small, independent offices. They provide the primary legal advice and services required by the commands to which they are assigned or, as in the case of reviewing authorities, are the offices that handle all reviewing requirements for the CAs under their command. You may have one or two LNs assigned to you, but it is just as likely that you may be the only LN at the command. Most of the work in these offices concerns military justice and investigations, but you should also know how to handle legal assistance. Administrative Procedures When you begin work in a new billet, whether it is in a RLSO/DSO or an SJA office, one of your first jobs is to learn as much as possible about your organization. You should learn what the primary functions of your office are, what duties it performs, and its relationship to the overall command organization. After you understand the function of your office, for example, military justice or legal assistance, you will see how your own duties, and those of your subordinates, fit into these functions. Thinking of your office in relation to your ship or station, you should study the ship or station organization, and the names, titles, and ranks of those above your office in the chain of command. You should know which other offices relate to yours in their duties. You also should learn what reports are due and in what form. To understand the Navy-wide program of which you are a part, study the publications related to your work. Remember, as the supervisor it will be ultimately your responsibility to be sure each of your subordinates is knowledgeable in these areas as well. Office Manager Traditionally, an office manager’s job has been viewed as the planning, organizing, directing, and controlling of his or her operations so the activity can carry out its mission. Many modern management authorities consider this concept inadequate because it fails to recognize the major role people play in achieving the objectives of the activity. To get the job done, managers organize, direct, and attempt to control the activities of people. Therefore, many management authorities prefer a concept of a manager as someone who is responsible for matching the interests and needs of the people with those of the activity or command. Assuming enough resources are available, managing people is the central and most important managerial task. Assigning Personnel After interviewing your personnel and reviewing their electronic service records, you should have a good idea of their experience level, past performance, and knowledge of the duties associated with the LN rating. All LNs are expected to perform the duties of their rating at the rate level they hold. This is a necessary condition of naval organizations, but it should not prevent you from remembering that 1-3

each individual has special talents or preferences. A good supervisor always finds out what each person likes to do well enough to put extra effort into it. You cannot make all assignments on this basis, particularly when manning levels and office workload override individual desires. However, the quantity and quality of work improve considerably when individuals are able to work at some of the tasks they do and like better than others. Since transfers, leave, temporary additional duty, or hospitalization will cause changes of personnel within your office, occasionally rotate your subordinates in the various jobs. By doing this you will take the first step in preventing office routine from breaking down when a key person is absent and be able to give each individual an insight into how each task contributes to the overall function of the office. Prepare for the unexpected by training your people to replace each other and to replace you. One method to make sure individuals clearly understand their job assignments is to establish those assignments in writing. By establishing job assignments for each desk in your office, you will make sure each individual is fully aware of his or her responsibilities and you will provide for a smooth and orderly transition when personnel are relieved or rotated to other assignments. Written job assignments also will help you make sure those tasks that are done once a month are not forgotten. A formal memo is not necessary to set up the requirements of a job. Just make a list on the desk leaf or directly in front of the desk where the work is done. You should keep a copy of the list so you can refer to it as necessary. When you assign duties, give similar or related tasks to the same person. Proper combination of duties speeds up operations by cutting out wasted motion and improving accuracy. Divide the workload as fairly as possible. An uneven workload lowers morale and creates bottlenecks that decrease office productivity. Correspondence and Directives You were given instruction on how to write the Navy’s various forms of correspondence. As a LN, you will be handling them in a much different way. One of your primary duties as an office supervisor is to control the correspondence and directives that your office deals with in its normal daily routine. Your responsibility is to handle and route all incoming and outgoing correspondence and to make sure all directives of a legal nature are kept current and prepared following command policy. You must determine which correspondence has the highest priority and how to route it to each worker so there is a smooth coordination of work in your office. Knowing exactly what to do with incoming correspondence is important to the efficient operation of your office and command. You must be sure you have set up a system of routing correspondence to your workers for action that considers the priority with which the action is taken. The system you set up must also allow for your subordinates to understand not only the content of the correspondence but the timeliness with which they should act on it. A correspondence read file and an action message board are two commonly used routing systems for making sure workers read and initial appropriate action items. It is also important that all your personnel are familiar with the different types of naval correspondence and directives as covered by the Correspondence Manual and the Directives Issuance System Manual. Training Every important aspect of your role as a supervisor is to make sure you maintain a comprehensive training program. The primary goal of any training given to your subordinates is to improve their efficiency on the job and enhance their advancement opportunities. A formal training program intended to ready your personnel for advancement should be based on occupational standards. Since advancement examinations are written based on occupational standards established for each rating, any training received within the occupational standards 1-4

guidelines benefits all concerned. Another reason for comprehensive training, especially for those LNs who are new to the rating, is to indoctrinate them as soon as possible to the many facets of the rating. When a DSO/RLSO or SJA office receives a new LN directly out of school, the new LN will possess only the basic administrative tools. It will take some time for these LNs to experience the many phases of the rating. Usually one tour is not enough to do the job. The importance of a sound training program cannot be overemphasized. Many sources are available to you when putting your training program together. Good guidelines for selecting and organizing your subject matter are contained in Military Requirements for PO 3 & 2. Its contents are extremely helpful at guiding you through the training development process and should result in a program that will meet the needs of your subordinates as well as the LN community as a whole. Customer Service Earlier in this chapter we discussed that the primary purpose of the NLSC and its subordinate offices is to provide necessary legal services to commands and personnel in specified geographical areas. It is possible that you will be supervising one of the legal offices that is tasked with providing legal services to several Navy commands and their personnel in your area. Providing this service is a customer service function on a command scale and also extends to their family members. Although you are not a lawyer, many customers will look to you as the LN for legal assistance and advice. For those customer’s seeking advice, it is paramount that you consult a JAG prior to providing this service. Finally, it is essential that you establish a well-run liaison with those commands as well as with local authorities. Although each command that you service will have similar, and often the same, legal problems that need attention, the problems and the urgency with which they are attended can vary greatly depending on the size of the command and its primary mission. For instance, a ship about to get underway would need court-martial services done much more quickly than a naval station whose accused and other interested parties are stationed ashore and will be readily available for some time to come. As the office supervisor, you should recognize the differences in the needs of the commands you service and assign your personnel accordingly. Coordination between your office and the commands you service will run more smoothly if you establish reliable contacts at each command. Although the point of contact will usually be the person who handles the command’s legal work, that person may be junior to most of the people he or she may be dealing with in the command. Therefore, you may need to develop a point of contact with a more senior person who has the power to make sure things you need the command to do to help you better serve it are done in a timely and efficient manner. It does no good to have your best workers servicing other commands if they are constantly being frustrated by a lack of cooperation on the other end. Liaison is a two-way street, and the smoother the coordination between each command, the better the personnel who really need the help are serviced. When you begin work in a new billet, whether it is in an RLSO,DSO, or a small SJA office, one of your first jobs is to learn as much as possible about the organization in which you work. You should learn the primary responsibilities of your office and those related functions it performs; your office’s relationship to the overall command organization; and what the chain of command is for your organization. After you understand the functions of your office, for example, military justice or legal assistance, you will see how your own duties fit into these functions. This knowledge will make your various jobs and responsibilities more interesting to you. 1-5

You should know the name and the rank or rate of every person in your office and the manner in which signing officials sign their names. You also should learn which part of the office operations each person performs and how this work contributes to the overall office functions. In this chapter we discuss matters relating to correspondence, publications and directives, files, reports control system, records disposal, logs, the database time management, security, and the release of government information. Correspondence and Directives One of your most important tasks is the preparation of correspondence. You will be expected to produce properly formatted official correspondence without errors. Correspondence does not just include basic letters. The term official correspondence includes all written and electronic materials—standard, business, joint, and multiple-address letters; endorsements; memorandums; or messages— that are sent to or from the command. You should familiarize yourself with the information provided in the Department of the Navy Correspondence Manual, SECNAV M-5216.5, and the Department of the Navy Directives Issuance System, OPNAVINST 5215.17 (series). These two directives are the primary sources of information used throughout the Navy for the proper preparation of correspondence. To handle naval correspondence properly, you should become familiar with four major areas. These areas are preparation, routing, filing, and subject classification. Preparation As a LN, you make sure any correspondence you are assigned to prepare is placed in the proper format and basic correspondence procedures are followed. In addition to following the procedures outlined in the Correspondence Manual and the Directives Issuance System, it is very important you remember to take care of the actual preparation of correspondence. The quality of the correspondence sent out by your office not only reflects upon you as the preparer, but also affects the impression others have of your office and command. We will now look at the requirements for the preparation of the different types of official correspondence mentioned previously. Standard Letter Use the standard letter to correspond officially with activities in the Department of Defense (DoD). You can also use the standard letter when corresponding with organizations outside the DoD if they have adopted the format. Outside users include the Coast Guard and some contractors who deal extensively with the Navy and Marine Corps. For instructions on how to prepare and examples of properly prepared standard letters, refer to the Correspondence Manual, Chapter 7. Multiple-Address Letter Use the multiple-address letter when you have more than one action addressee. Except for its handling of addressees, the multiple-address letter is the same as the standard letter. For instructions on the preparation of and samples of properly prepared multiple-address letters, refer to the Correspondence Manual, Chapter 8. Endorsement When a letter comes to your activity because you are a via addressee, prepare an endorsement rather than another letter. You can use either a same-page endorsement or a new-page endorsement as shown in the Correspondence Manual, Chapter 9. Many endorsements simply 1-6

forward letters without substantive comment, if any, to the next via addressee or to the action addressee; however, other possibilities exist. An endorsement may either comment on the basic letter or any earlier endorsement. An endorsement may alter the order of any remaining via addressees or add others. An endorsement may return the basic letter with a final reply or a request for more information. Memorandum A memorandum provides an informal way to correspond within an activity or between several activities. Subordinates may use a memorandum to correspond directly with each other on routine business. You may not use a memorandum to issue directives. Examples of memorandums are shown in the Correspondence Manual, Chapter 10. Business Letter Use the business letter to correspond with agencies or individuals outside the Department of the Navy (DON) who are unfamiliar with the standard letter. You may also use the business letter for official correspondence between individuals within the DON when the occasion calls for a personal approach. Instructions for the proper preparation and samples of business letters are shown in the Correspondence Manual, Chapter 11. Message This portion of the chapter introduces you to the basics of messages. Although every command has its share of outgoing letters, outgoing messages also are a vital administrative function. A message is a written thought or idea expressed briefly and to the point. Messages are prepared in a form suitable for transmission via telecommunications networks. The Navy Telecommunications Users Manual (NTP) 3 provides guidance on preparing naval messages. It is designed to briefly explain procedures for drafting and preparing Naval messages. Responsibilities As the Naval Telecommunications System becomes more automated, the proper preparation of message traffic becomes more important. Errors cause manual intervention during the automated processing and may result in rejection of the message. To aid in the prevention of procedural errors, specific areas of responsibilities are assigned as follows: Types of Messages There are four types of classified and unclassified narrative messages: single address, multiple address, book, and general message. Single-Address A message, which may be either for action or for information, with only one addressee. Multiple-Address A message with two or more addressees, which is either for action or for information and where each addressee is informed of all other recipients. Book A message destined for two or more addressees where the drafter considers it unnecessary for each addressee to be informed of other addressees. Book messages are routed according to each addressee’s relay station. All unnecessary addressees are deleted from the face of the message before the message is sent to the addressee(s) served by that particular relay station. 1-7

General General messages are designed to meet recurring requirements for issuing information to a wide, predetermined standard distribution. General messages are titled, for example, NAVADMIN and ALNAV. Because the title indicates the distribution, it serves as the address designator in the address line of the message heading. To attain uniformity of format with joint procedures, general messages are assigned, following the general message title, a consecutive three-digit serial number followed by a single slant and the last two digits of the current calendar year, for example, NAVADMIN 015/10. The general message title and number/year stand alone on the line after the classification and before the subject. Minimize Messages MINIMIZE means, “It is now mandatory that normal message and telephone traffic be reduced drastically so that vital messages connected with the situation indicated will not be delayed.” A message ordering MINIMIZE consists of the word MINIMIZE, followed by the area affected (scope), reason, and duration of the MINIMIZE condition (when known). Communications Guard Shift Messages Communications guard shift (COMMSHIFT) messages are required when a command shifts its guard from one broadcast or servicing communications center to another. When possible, the shift takes effect at 0001Z of the new radio day. To ensure continuity of traffic when broadcasts are shifted, an overlap period before and after the effective time is observed. Detailed information concerning communications guard shift messages and formats is contained in NTP 4. Message and Routing Addressees Address Indicating Groups The purpose of Address Indicating Groups (AIGs) is to increase the speed-of-traffic handling. They shorten the message address by providing a single address group to represent a large number of addressees. This eliminates individual designators for each address used in the heading. Message Addresses Absolute consistency in the format and spelling of a Plain Language Address (PLA) was not critical before the implementation of automated message-processing systems. Because communications personnel processed all messages, deviations in address spelling were tolerated. This is no longer true. Message drafters must now verify the PLA for each addressee in the Message Address Directory (MAD) and not rely on memory or copy PLAs from incoming messages. Message Address Directory The MAD contains authorized message addresses and is divided into five sections: Joint Department of Defense (JDoD), Plain Language Address Directory (PLAD), U.S. Military Communications—Electronics Board Publication (MCEB Pub 6), Army, Air Force, and Navy. The Navy section, “U.S. Navy Plain Language Address Directory (USN PLAD 1),” includes message addresses for Marine Corps and Coast Guard activities. MAD updates are published four times a year to ensure that all addresses are current. 1-8

Plain Language Addresses The PLAs listed in USN PLAD 1 are the only designators authorized for use in message addressing to Navy, Marine Corps, and Coast Guard activities. Deviations from USN PLAD 1 in spelling, spacing, or formatting cannot be tolerated because automated message-processing systems are keyed to USN PLAD 1 entries. Message User Responsibilities A message user is any individual authorized to draft, release and/or process electronically transmitted messages. There are certain responsibilities associated with the origination of a message. These responsibilities are separate and distinct and concern the following parties:  Originator  Drafter  Releaser. Occasionally, the responsibilities may overlap, especially if one person is serving a dual capacity. For example, administrative officers occasionally may draft and release messages, thus making the officers both message drafters and releasers. Originator The originator is the authority (command or activity) in whose name the message is sent. The originator is presumed to be the CO of the command or activity. Most often, the originator and the releaser are one and the same. In some cases, the drafter, releaser and originator are all the same person. For example, if the CO drafts a message for transmission, he or she is the drafter as well as the releasing authority for the activity in whose name the message is sent. Drafter The drafter is the person who composes the message. According to NTP 3, the drafter is responsible for the following:  Addressing and using PLAs correctly  Ensuring clear, concise composition  Selecting the precedence  Ensuring proper format  Assigning the proper classification. Apply the proper security classification, special handling and declassification markings required by the DON Information Security Program, SECNAV M-5510.36, and ensure records are maintained to show the source of derivation for the classification assigned  Ensuring originators of an AIG/Collective Address Designator (CAD) are authorized users of that AIG/CAD. See NTP 3 SUPP-1 for AIG/CAD information. Releaser The releaser is a properly designated individual authorized to release messages for transmission in the name of the command or activity. The releasing individual ensures the drafter complied with the requirements of NTP 3. In addition to validating the contents of the message, the signature of the releaser affirms compliance with message-drafting instructions. The signature of the releaser authorizes the message for transmission. The releaser is responsible for establishing message staffing and processing procedures to prevent delays, eliminate backlogs 1-9

and promote an even flow of messages. Also, the releaser is responsible for proofreading the message for procedural errors, accuracy and clarity. These responsibilities include the following:  Ensuring all personnel under the control of the releaser are briefed and understand the meaning and importance of MINIMIZE  Ensuring the drafter complied with the NTP 3 and supplemental instructions, with particular attention to classified messages. Filing Constant changes in naval office personnel due to transfers, leave, and discharges create a need for a single subject classification system. The present standard Navy-wide system fulfills that need because it makes sure any person who knows the subject filing system of one ship or station can operate that of another with little decrease in efficiency. This does not mean that each office has the same number or type of files. Instead, it signifies that a standard system is used to (1) assign subject codes (numbers), (2) guarantee that general files have the same basic arrangement, and (3) make sure certain sets of files are kept by all activities. Details of file arrangement within any particular naval office depend upon the mission or function of the office and the volume of its official correspondence. You will find that the general files in your office are similar to those found in any other office in the Navy. These general files contain such items as incoming letters, copies of outgoing letters, and memorandums that normally form the bulk of your office files. In addition to the general files, you may decide to set up separate files for such items as court-martial records, investigations, and nonjudicial punishments. In a small SJA office where the volume of claims business is not so heavy, you could probably file all your claims correspondence in the general file (5890). However, if your office processes many claims, you should file only general correspondence in the general files and set up a special file in alphabetical order (by last name of claimant) for claims processed. In a decentralized filing system, files are normally kept by the section responsible for the function being performed; that is, the claims section would keep claims files, the review section would keep review files, and the legal assistance section would keep legal assistance files. You may encounter the decentralized filing system in NLSC offices where the volume of files warrants such a system. However, in a small SJA office where the volume of business (and hence, the volume of files) is not so heavy, such a system probably should not be instituted. Court-martial records, which are part of your general files, are normally kept in a separate drawer of the filing cabinet. You should file summary court-martial (SCM), special court-martial (SPCM), and general court-martial (GCM) records separately. They may, of course, be filed in the same drawer of the filing cabinet if necessary, but group them together by the type of court involved and file alphabetically according to the last name of the accused. Whether your office uses a centralized or decentralized filing system is usually determined by the size of your organization and the volume of business handled. Whichever system you use, it is important that you thoroughly understand the system in use. Subject Classification Having the proper subject classification on a naval letter or a directive will help you, and the individual to whom the correspondence is being sent, in filing and properly identifying the subject material. To make sure a piece of correspondence has the proper subject identification code, you should refer to the Department of the Navy Standard Subject Identification Codes, SECNAV M- 5210.2. 1-10

Drafting Correspondence As a LN, you will compose letters from brief notes or even from oral instructions. In preparing long letters, you should be able to prepare a first draft that will need only minor changes before the draft is ready for smooth typing. You should master the preparation of short, routine letters to the point that they rarely need any change before signature. Refer to the Correspondence Manual for instructions regarding naval writing standards and sample letters. Publications and Directives Handling, correcting, and using publications and directives are a big part of the daily routine of any Navy office. The efficiency of the office depends on how well these activities are done. Therefore, it is important for you to recognize various publications, to understand their contents, and to know how to store and retrieve them as they are needed. You cannot remember everything; however, the trick is to know where to find information. Using Publications In any office you are assigned to work, you will be required to use Navy publications effectively. Each publication is unique and requirements for its use are as individual as the publication itself. You will have the need to be familiar with certain publications that you will find to be indispensable in your area of work. Some of the most common publications you will find in an office that is involved in legal matters include the following:  United States Navy Regulations, 1990—This publication outlines the organizational structure of the DON and issues the principles and policies by which the Navy is governed. It is published in loose-leaf form and kept in an adjustable binder so changes may be inserted as necessary. The CNO is responsible for making changes as approved by the Secretary of the Navy (SECNAV) to Navy Regulations.  Manual for Courts-Martial (MCM), United States, 2012 Edition—This publication is considered the LN’s bible. No law office should be without one. By enacting the Uniform Code of Military Justice (UCMJ), Congress established a single set of laws for administering justice to all the armed forces. The MCM consists of five parts that include Part I— the Preamble, Part II—the Rules for Courts-Martial (R.C.M.), Part III—the Military Rules of Evidence (Mil.R.Evid or M.R.E.), Part IV— the Punitive Articles, and Part V— Nonjudicial Punishment Procedures. Part II, the R.C.M.s, governs the procedures and punishments in all courts-martial and, whenever expressly provided, preliminary, supplementary, and appellate procedures and activities. Part III, the M.R.E.s, is construed to (1) secure fairness in administration, (2) eliminate unjustifiable expense and delay in court-martial proceedings, and (3) promote growth and development of the law of evidence to the end that the truth may be learned and proceedings justly determined. Part IV, the Punitive Articles, addresses all the punitive articles of the UCMJ. Each article includes the text of that particular article, an explanation of the article, the elements of the offense, any lesser included offenses, the maximum punishment for the offense, and a sample specification for the article.  Manual of the Judge Advocate General (JAGMAN), JAGINST 5800.7 (series)— The JAGMAN contains regulations for the DON. It is prepared by the JAG of the Navy and covers issues such as administrative investigations; Article 138 complaints; Article 139 investigations; release of government information; delivery of service members; service of process and subpoenas; authority of armed forces personnel to perform notarial acts; legal assistance; claims regulations; international law; customs requirements; admiralty 1-11

claims; environmental protection; and payments due mentally incompetent members, physical examinations of such members, and trustee designations.  Naval Military Personnel Manual (MILPERSMAN), NAVPERS 15560D—The MILPERSMAN is issued under Navy Regulations, 1990, Article 0105, for direction and guidance, and contains policy, rules, and practices for administration of military personnel within the Navy. Each article is identified by a seven-digit number. The first four digits identify the subject per the Navy Standard Subject Identification Codes (SSIC) Manual, and the last three identify an article within a section. Changes are made quarterly by the Deputy Chief of Naval Personnel with approval of the Chief of Naval Personnel.  The United States Navy Uniform Regulations—This publication is prepared and distributed by the Chief of Naval Personnel. It describes and lists the various uniforms for personnel in all categories including mandatory and optional items. It also describes occasions when the various uniforms should be worn; methods of wearing medals, decorations, ribbons, rating badges, and special markings; and gives notes on the care of the uniform. Changes are issued by the Chief of Naval Personnel as changes in uniforms occur.  The Department of the Navy Correspondence Manual, SECNAV M-5216.5—This manual is prepared and approved in the Office of the Secretary of the Navy. It contains instructions for preparing letters, endorsements, memorandums, and messages. Instructions cover all parts of correspondence, such as address, subject, references, paragraphing, and signature, together with directions for assembling correspondence for signature and mailing.  Department of the Navy Standard Subject Identification Codes (SSIC) Manual, SECNAV M- 5210.2—The Naval Data Automation Command maintains the system, provides for changes and presents them to SECNAV for issuance. The SSIC outlines the process for segregating and filing Navy and Marine Corps records and the single standard system of numbers and/or letter symbols used throughout the DON for categorizing and subject classifying information. SSICs are required on all Navy letters, messages, directives, forms, and reports.  Standard Organization and Regulations of the U.S. Navy (SOR M), OPNAVINST 3120.32(series)—This publication is issued by CNO. It issues regulations and guidance governing the conduct of all members of the U.S. Navy. This regulation uses two types of print—the material printed in uppercase is regulatory, and the material printed in plain type is for the guidance of commanders, COs, and OICs. These regulations apply to each member of the Navy individually. Violation of any provision of these regulations is punishable under the UCMJ.  Department of the Navy Information Security Program Regulations Manual, SECNAV M- 5510.36—This publication is issued by CNO and is commonly referred to as the Security Manual. Its provisions apply to DON military and civilian personnel and activities. The Security Manual provides personnel with regulations and guidance for classifying and safeguarding classified information and for personnel security.  Standard Navy Distribution List (SNDL)— The SNDL is published by the CNO and provides for the proper addressing and distribution of mail to all activities of the DON and provides a central distribution system for directives and correspondence. The SNDL is published in two parts and each part is issued separately. Part 1 is often referred to as the yellow pages and is entitled Standard Navy Distribution List, Administrative Organization of the Operating Forces of the Navy. Part 2 of the SNDL is Shore Activities and Detach ments Under the Command of the Chief of Naval Operations, which provides 1-12

distribution lists for the Navy Department and all shore activities of the Naval Establishment. Revisions and changes to the SNDL are normally issued on a quarterly basis by CNO. When issued, all changes are available on the Department of the Navy Issuances web site under the tab “SNDL.”  Travel Regulations: Defense Travel Management Office (DTMO) manages the regulation development and approval process for the Joint Federal Travel Regulations (JFTR), Volume 1 and the Joint Travel Regulations (JTR), Volume 2. The JFTR, Volume 1, applies to uniformed personnel, and the JTR, Volume 2, applies to DoD civilian employees and others traveling at DoD expense. DTMO manages the day-to-day operation of the Per Diem, Travel and Transportation Committee (PDTATAC) staff. The PDTATAC’s mission is to ensure that travel and transportation regulations are, as far as practicable, uniform for all of the uniformed services, and uniform in implementing the Federal Travel Regulation (FTR) for DoD civilian employees. The working level operation of the Committee is carried out through two advisory panels, one for military (Military Advisory Panel or MAP) and one for civilian (Civilian Advisory Panel or CAP). The panel members belong to their respective services and represent their principals on the Committee. The JFTR/JTR interprets the laws and regulations concerning travel, the manner in which transportation is furnished to personnel, provisions for travel of dependents, transportation of household goods, reimbursements for travel expenses, and similar information.  DoD Financial Management Regulation 7000.14-R is the regulation that governs Navy Pay and Personnel Procedures. The Navy Procedures Training Guide (PTG), Part 7, is used for deductions and collections. The Navy PTG contains detailed pay and personnel procedures for all Navy personnel. You will use these references to assist in the preparation of page 6s and 7s through Navy Standard Integrated Personnel System (NSIPS).  Certain commands have manuals dealing with technical subjects involved in their respective functions. If you are assigned to a department in which one of these manuals is used, you should become acquainted with the format and general content. Maintenance Requirements and Updating Procedures No publication or directive can stay on the shelf for a long time without needing to be changed. Changes will come from the originator as reprinted pages that need to be inserted in place of the outdated pages or as pen-and-ink changes that require you to enter or delete information by hand. Most publications contain a list of effective pages. Part of your job is to make sure publications are complete by checking each page number against the list. When you receive new pages as part of a change, a new list of effective pages is included and must be verified after you enter the change(s). Proper notations, such as CH-1, are entered in the upper right margin of the first page of each directive changed, or on the record-of-changes sheet for publication-type instructions, to indicate changes received and incorporated. Ordering Forms and Publications Most instructions can be printed from the Department of the Navy Issuances web site, http://doni.daps.dla.mil/default.aspx. Also, if your command does not have full-time reliable access to the internet, unclassified SECNAV and Office of the Chief of Naval Operations (OPNAV) directives are available on CD-ROM. To order the CD-ROM, you can subscribe on the above web address. Notify your supply officer if you need to order new forms or publications (with the exception of those issued through the Directives Issuance System), or to replace those that have become damaged or mutilated. The method of letting the supply officer know what you 1-13

need varies with the activity or size of your ship or station. The supply officer will let you know how the information is to be given. The supply department prepares a DoD Single Line Item Requisition System Document, DD Form 1348, and sends it to the supply activity responsible for the supply support of your ship or station. Directives Issuance System The Department of the Navy Directives Issuance System provides a standard method of issuing directives by all activities in the Navy. As set forth in OPNAVINST 5215.17 (series), the system contains the following nine chapters and two tables:  Chapter 1 – Directives Management Objectives and Responsibilities  Chapter 2 – Standards and Practices  Chapter 3 – Unclassified Instructions  Chapter 4 – Classified Instructions  Chapter 5 – Notices  Chapter 6 – Change Transmittals  Chapter 7 – Interim Message Changes  Chapter 8 – Manual-Type and Publication-Type Directives  Chapter 9 – Joint Directives  Table I—Preparation of Letter-Type Directives  Table II—Preparation of Special-Type Directives The Directives Issuance System contains the standard procedures and formats used to issue policy, procedural, and informational releases in the DON. In general, a document is issued in the Directives Issuance System when it does one or more of the following:  Regulates or is essential to effective administration  Establishes policy  Delegates authority or assigns responsibility  Assigns an organizational structure  Assigns a mission, function, or task  Initiates or governs a course of action or conduct  Establishes a procedure, technique, standard, guide, or method of performing a duty, function, or operation  Establishes a reporting requirement  Changes, supersedes, or cancels another directive With certain exceptions, issuances not falling within the scope of the previous criteria nevertheless may be issued in the Directives Issuance System to obtain quick and controlled dissemination. Normally issued as notices, these may include the following:  Requests for comments, approval, or information 1-14

 Directions for routinely carrying out established operations, such as matters about individual personnel actions or special shipments of material  Informative announcements, such as education or promotion opportunities, recreational activities, work improvement plans, suggestions for morale building, or changes in office locations or telephone extensions A directive prescribes or establishes policy, organization, conduct, methods, or procedures; requires action or states information essential to the effective administration or operation of activities concerned; or contains authority or information that must be issued formally. The types of directives used in the Directives Issuance System include instructions, notices, and change transmittals. Instructions An instruction is a directive that contains authority or information having continuing reference value, or requiring continuing action. Normally an instruction remains in effect for seven years or until superseded or otherwise canceled, whichever occurs first, by the originator or higher authority. The originator of the instruction is required to review the contents of the instruction annually. Notices A notice is a directive of a one-time nature or one that contains information or action for a brief time only. A notice usually remains in effect for less than six months, but is not permitted to remain in effect for longer than a year. A notice has a self-canceling provision. The cancellation date is always stated. When the exact length of time a notice is to remain in effect cannot be determined at the time of issuance, the specific date for record purposes is set far enough in the future to allow all necessary uses of the notice. Reports and procedures covered in a notice are considered canceled when the notice is canceled, unless requirements have been issued in another document. Cancellation determinations are shown at the top right corner and/or as a last paragraph titled Cancellation Contingency. Change Transmittal A change transmittal is the medium used to transmit changes to an instruction. Each transmittal describes the nature of the change it transmits and gives directions for making the change. Drafting Instructions and Notices When drafting instructions and notices, use the same rules and procedures that you would if you were drafting any type of correspondence. Instructions and notices must be clear, concise, and easily understood. Clarity of language as well as neatness in appearance of the instruction or notice will promote increased understanding by recipients and greater efficiency within your organization. The elements of a directive, both as to content and format, generally in the order that they appear in a directive, are contained in Chapters 1 through 9 in OPNAVINST 5215.17 (series). The Department of the Navy Correspondence Manual, SECNAV M-5216.5, provides additional guidance on the preparation of directives. Filing Directives Instructions normally should be filed according to (1) subject identification number, (2) consecutive number, and (3) issuing authority. Checklists of directives issued by Washington 1-15

headquarters organizations should be organized in this manner. If local conditions require, however, directives may be filed primarily by issuing authority or by a combination of subject identification number and issuing authority. You should disregard alphabetic prefixes (C and S showing security classification) to the subject designation in determining the numerical filing sequence. Because of their brief duration, you need not file notices in the master file. If it is necessary to interfile them with instructions temporarily, the notices should be tabbed so each may be easily and promptly removed as soon as its cancellation date is reached. Copies may be filed in separate binders when necessary. File cross-reference sheets for instructions permanently or temporarily removed from your office with these instructions. Insert locator sheets in normal sequence in place of the removed instructions they reference. You should place a subject cross-reference sheet in front of those instructions that carry the same subject identification number. A second copy of the cross- reference sheet should be placed in a suspense file for temporarily loaned instructions. An instruction should be returned within five days, unless the borrower is still using it. Files As an LN, you must be able to file correspondence correctly and retrieve it quickly. The amount of time it takes you to locate a certain piece of correspondence depends on how well you know the Navy’s filing system. This section introduces you to the Navy way of filing. You are introduced to various procedures that will help you to perform your duties efficiently. You are also instructed in using the numerical subject identification coding system that was addressed previously and contained in the Department of the SSIC Manual, SECNAV M-5210.2. The SSIC contains the numerical codes that provide the basic classification structure for identifying and filing records. These codes cover most subjects found in general correspondence and other files. Since these numbers are used for numbering other naval documents such as reports, forms, and directives by subject category, they also provide the basis for a single Navy- wide subject numbering system. There are 13 major numerical subject groups, each having a thousand possible topics:  1000 series— Military Personnel  2000 series—Telecommunications  3000 series— Operations and Readiness  4000 series— Logistics  5000 series— General Administration and Management  6000 series— Medicine and Dentistry  7000 series— Financial Management  8000 series— Ordnance Material  9000 series— Ship’s Design and Material  10000 series—General Material 1-16

 11000 series— Facilities and Activities Ashore  12000 series— Civilian Personnel  13000 series—Aeronautical and Astronautical Material Within the major groups are subdivisions using the second, third, and, sometimes, fourth digit; for example:  5000— General Administration and Management  5800— Laws and Legal Matters  5810—Military Justice  5812—Commanding Officer’s Nonjudicial Punishment Maintenance File material loosely in folders unless you need fasteners to hold pages in a particular order. Use prong fasteners rather than staples, clips, or rubber bands to hold material. Disposal The Navy Records Management Program Manual, SECNAV M-5210.1, prescribes policy and procedures for the DON’s Records Disposition Program relating to records creation, maintenance, and disposition. Files and records are disposed of according to the requirements of SECNAV M-5210.1. This issue will be further addressed later in this chapter under Records Disposal. Reports Control System Whether you are assigned to NLSC offices or a small SJA office, you will find that your office is responsible for preparing and submitting several different types of reports. Knowing what these reports are, how to prepare them, and when and to whom they are to be sent is important to the efficient operation of both your office and the offices that receive these reports. To help commands effectively control the preparation and submission of required reports, the Navy has designed a reports control management system. When working with the reports control system, you should become familiar with the tickler system, the preparation of the reports, and the procedures for filing these reports. The following hints are provided to help you establish and maintain the reports control system for your office. Establishment of a Reports Control System and Tickler File To determine which reports your activity submits and, therefore, need to be included in your tickler file, it is necessary to check the current 5214 instructions issued by commands senior to yours in the chain of command as well as the JAGMAN, which is the primary source of required reports within the JAG community. Once you know which reports are required, you must establish a system that gives you a master list of all reports and a means to ensure they are submitted in a timely manner. The manner in which a tickler file is made up may vary with each command and can be accomplished by creating an electronic database or utilizing the Reports Record Card, OPNAV Form 5214/5. 1-17

Maintenance of a Reports Control System and Tickler File Which reports have to be prepared and sent out by my office? When do they have to be sent out? To whom are they sent? These are questions that can be easily answered if you have an effective tickler system being used in your office. A tickler system consists of either a list of reports or a card file listing all the reports required for your office. Whether you use an electronic database or the OPNAV Form 5214/5, the following information should appear:  The frequency of the report; for example, annually, semiannually, quarterly  Title of the person/department responsible for preparing the report  Title of report and/or report symbol; for example, Legal Assistance Report, NAVJAG 5801.3  Reference requiring the report; for example, JAGMAN, Chapter 1, Section 0102 If you use OPNAV Form 5214/5, file the tickler cards together in the tickler file by the frequency, for example, monthly or quarterly, of the report they reference and in chronological order by the date the report should be prepared. Another thing to remember when working with the tickler system is that you should continually check the references listed on each card to make sure the reporting requirements are current. Preparation of Reports When tasked with preparing a report, you should check the tickler system to determine when the report is due, who it goes to, and which format you should use in preparing the report. You also should check the reference that requires the report and follow the procedures outlined in that reference for the proper preparation of the report. Filing Reports When you complete the preparation of a report, file a copy in your office’s general files. The size of the office you are working in will determine whether you will file the copy of the report in a separate report file by its frequency of submission (for example, annual reports or semi-annual reports) or in the general files by its subject classification code. When practical, a reports control case file should be maintained for each type of report and should contain the following information about the report:  A copy of the directive authorizing the report  Instructions for the preparation and submission of the report  A sample copy of the report  Any correspondence or other matter about the report Whenever possible, file reports separately from the general files to provide for easier reference. Records Disposal How important are records in your files? Important enough that Congress has passed laws governing their disposition and fixing penalties for their unauthorized destruction. These laws apply to all official government records, not only classified documents. Though sometimes monotonous, all tasks connected with files, including their disposition when no longer needed, must be taken seriously. Decisions whether or not to save files cannot be avoided by simply saving everything. Sooner or later filing cases fill up and something has to be done. No matter how firmly you believe that if you get rid of it today, somebody will want it tomorrow, you cannot go on collecting forever. On 1-18

the other hand, the “if in doubt, throw it out” school of thought, if allowed to operate unchecked, goes to the opposite extreme. You may be called upon to help determine the proper disposition of files and records maintained in your office. In doing this, you will have to know what files and records are maintained in your office, how long they should be kept, and what should be done with these files and records after they have served their usefulness to your office. The specific procedures are outlined in the DON Records Management Program Manual, SECNAV M-5510.36. You should also become familiar with any additional procedures that may be required by other directives for the proper disposition of specific files and records that may be maintained by your office, for example, court-martial records, legal assistance case files, and claims files. Security As an LN, you will be required to work with classified information; however, your involvement with it will be minimal. There may be court-martial trials and investigations in which classified information is involved and possibly admitted in evidence as exhibits. There will also be incoming and outgoing routine classified documents that are necessary to the conduct of official business. You should become familiar with the procedures that have been established by your office and command for the proper security of your office space. Even though most of the files, records, and documents you will be required to work with are not classified, many of them contain sensitive information and care should be taken to make sure these materials are properly safeguarded. Remember, as an LN you are considered to be working in a position of high trust and confidence. The unauthorized disclosure of sensitive and/or confidential information about a legal assistance client, investigation, or court-martial can be detrimental to the client, to the investigation or court-martial, and to the reliability of your office. Communications between an attorney and client are privileged to anyone unless the client consents to the disclosure. When you are working for an attorney, you are also bound by this privilege. Specific procedures for the safeguarding of such materials as evidence, records of trial and investigations, and legal assistance files are discussed in those chapters that pertain to these topics. In addition to those procedures for properly maintaining the security of your office, you may occasionally have to handle classified material. These occasions will normally occur only when you are working with an investigation or a trial in which classified information may be involved, either in testimony or as documentary evidence. Familiarize yourself with the Department of the Navy Information Security Program Manual, SECNAV M-5510.36, and Department of the Navy Personnel Security Program Manual, SECNAV M-5510.30, if you are required to handle classified material Purpose Basic to a security education program is the appreciation that there is a need for protecting classified information from hostile threats. The purpose of the Information and Personnel Security Program is to protect against the dissemination of information that is essential to national security. In an open society, such as that of the United States, disclosure outside authorized channels is tantamount to disclosure to a hostile intelligence service. The purpose of the security education program is to make sure all personnel understand the need to protect classified information and know how to safeguard it. The goal is to develop fundamental habits of security to the point that proper discretion is automatically exercised in the discharge of duties and that the security of classified information becomes a natural element of every task. 1-19

Responsibility, Maintenance, and Safeguarding The CNO (OP-09N) is responsible for policy guidance, education requirements, and source support for the security education program. COs, through their security managers, are responsible for security education in their command and for making sure it is afforded a significant share of the time dedicated to command security training. Classified information or material will be used only when there are proper storage facilities or under conditions adequate to prevent unauthorized persons from gaining access to it. To the extent possible, classified holdings will be consolidated to limit the areas where it will be used. Anyone who has possession of classified material is responsible for safeguarding it at all times and particularly for locking classified material in appropriate security containers whenever it is not in use or under direct supervision of authorized persons. The custodian must follow procedures that will guarantee unauthorized persons do not gain access to classified information by sight or sound or other means. Classified information will not be discussed with or in the presence of unauthorized persons. During working hours, the following precautions will be taken to prevent access to classified information for unauthorized persons:  When classified documents are removed from storage for working purposes, they will be kept under constant surveillance and facedown or covered when not in use. Cover sheets are Standard Forms 703, 704, and 705 for Top Secret, Secret, and Confidential documents respectively.  Classified information will be discussed only when an unauthorized person cannot overhear the discussion. Particular care should be taken when there are visitors or workmen present. Escorts should alert fellow workers when visitors or workmen are in the area. Preliminary drafts, plates, stencils, stenographic notes, worksheets, and all similar items containing classified information will be protected either by destroying them by a method approved for destroying classified material immediately after they have served their purposes or by giving them the same classification and safeguarding them in the same manner as the classified material they provided. If you have any reason to use a typewriter in preparing classified material, the used ribbons will be protected the same as the highest level of classification for which they have been used. They will be destroyed as classified waste. Destruction of Classified Material Classified record material may be destroyed only when destruction is the disposition authorized by SECNAV M-5510.36. All other classified material will be destroyed as soon as it is no longer required and will not be retained for more than five years from the date of origin unless authorized by SECNAV M-5510.36. Classified material will be destroyed only by authorized means by personnel cleared to the level of the material being destroyed. Classified material awaiting destruction will be afforded the protection of the information it contains. Burn bags will be safeguarded at the level of the highest classification they contain until they are completely destroyed. A record of destruction is required for Top Secret information. OPNAV 5511/12, “Classified Material Destruction Report,” may be used for this purpose. Record destruction of Top Secret and any special types of classified information (if required) by any means as long as the record includes complete identification of the information destroyed and date of destruction. Two witnesses shall sign the record when the information is placed in a burn bag or actually destroyed. Retain Top Secret records of destruction for five years as prescribed in SECNAV M- 5510.36. 1-20

Records of destruction are not required for Secret and Confidential information except for special types of classified information as prescribed in Chapters 7 and 10 of SECNAV M-5510.36. Administrative procedures for recording final disposition of Secret material, whether by destruction or transmission outside the command, must be established in order to support the requirement of Chapter 7. The fact that an originator may state in a document that it may be destroyed without report does not change the requirement to record destruction. It only means that the originator does not have to be notified that the document was destroyed. Confidential material and classified waste are destroyed by authorized means by appropriately cleared personnel but do not require a record of destruction. Records of destruction are not required for waste products. Top Secret working papers are not considered “waste products.” Various methods and equipment may be used to destroy classified information, including burning, cross-cut shredding, wet-pulping, mutilation, chemical decomposition, or pulverizing. The methods used to destroy classified material must prevent later recognition or reconstruction. Burning has been the traditional method for destroying classified material because destruction is complete and disposition of the remaining ash is relatively simple. The remaining ash needs only to be stirred to make sure destruction is complete and reconstruction is impossible. Shredding machines are relatively quiet and require little skill to operate. A cross-cut shredder shall reduce the information to shreds no greater than five square millimeters. New purchases of cross-cut shredders will be from those listed on the National Security Agency/Central Security Service (NSA/CSS) Evaluated Products List for High Security Crosscut Paper Shredders. For more information regarding cross-cut shredders, see www.navysecurity.navy.mil. Strip shredders are not authorized for the destruction of classified information. Ordinarily, shredding suffices as complete destruction of classified material and the residue may be handled as unclassified waste. Requests for Release of Government Information This section addresses the three principal types of requests for information or records likely to be received by naval activities and the procedures to follow upon receipt of a request. It does not apply to routine naval correspondence or to congressional inquiries. Commands receiving a request for records or information from members of the public should examine the request and determine if it cites or implicates the Freedom of Information Act (FOIA), the Privacy Act, or related naval or DoD regulations. Records of information may also be requested for litigation purposes—often to bring suit against the Navy. We will now take a look at these different types of requests in greater detail. Freedom of Information Act The Freedom of Information Act, 5 U.S.C. § 552, generally provides that all persons, including citizens and residents of other countries, have a right of access to federal agency records, unless such records are exempt from disclosure. The Department of the Navy Freedom of Information Act Program, SECNAVINST 5720.42(series), addresses FOIA exemptions, time limits for responses, formal and informal extensions of time limits, appeal procedures, and fee schedules and includes sample format responses to respond to FOIA requests. SECNAVINST 5720.45(series), Publication of Department of the Navy Directives and other Documents in the Federal Register, directs that the public be provided, to the maximum extent possible, information on the organization and functions of the Navy and the policies and procedures by which those functions are performed in relation to the public. The FOIA requires publication in the Federal Register of information that affects the public, for example, descriptions of agency organization, functions, procedures, substantive rules, and 1-21

statements of general policy. Additionally, materials such as opinions rendered in the adjudication of cases, specific policy statements, and certain administrative staff manuals must be made available for public inspection. All other Navy records— those not required to be published in the Federal Register or made available for public opinion—are subject to disclosure upon receipt of a proper request for access, unless exempt. An agency record includes all books, papers, maps, photographs, machine-readable materials, or other documentary materials, regardless of physical form or characteristic, made or received by an agency of the United States Government under federal law or in connection with the transaction of agency business and in the agency’s control at the time the FOIA request is made. An agency record does not include the following items:  Objects or articles such as structures, parts from wrecked aircraft and ships, furniture, paintings, sculptures, three-dimensional models, and vehicles and equipment.  Anything that is not a tangible record, such as an individual’s memory or oral communications.  Computer software, if not created or used as primary sources of information about organizations, policies, functions, decisions, or procedures of the agency.  Personal records not subject to Navy creation or retention requirements, created or maintained primarily for a Navy employee’s personal convenience, and not distributed to other agency employees for their official use. For example, a supervisor’s personal notes on an employee’s performance, not required to be maintained and used solely as a memory aid in preparing evaluations and then destroyed, are not an agency record. Minimum Requirements The minimum requirements for an FOIA request are the request (1) cites or implicates the FOIA, (2) contains a reasonable description of the information or records requested, and (3) contains a clear statement of the requester’s willingness to pay fees, a willingness to pay fees up to a stated amount, or a request for a fee waiver. If the FOIA request does not meet these requirements, the naval activity should answer the inquiry, within 10 working days, to inform the requester of the contents of a proper request. Identify the Records Requested Commands must search their filing systems and existing retrieval systems if the description provided by the requester enables naval personnel to locate the records with reasonable effort. The FOIA does not authorize “fishing expeditions,” nor are commands required to respond to blanket requests for all documents. The naval activity will notify the requester if the description does not reasonably describe the records sought and provide guidance on the specificity required to begin a search. If the requested record was originated by another activity, the receiving activity will not release or deny such records without consulting the other naval activity. The receiving activity will coordinate with that activity before referring the FOIA request and copies of the requested documents for direct response. A naval activity does not have to create or compile a record. A record may be compiled if it is either a more useful response to the requester or a lesser burden to the naval activity than providing existing records, and the requester does not object. 1-22

Requests Requiring Special Handling Detailed instructions for records requiring special handling are in paragraph 14 of SECNAVINST 5720.42 (series). The most common requests requiring special handling are briefly outlined as follows:  Classified records— If the existence or nonexistence of the requested information is classified, the naval activity will refuse to confirm or deny its existence or nonexistence. If the documents requested are classified by another agency, or if the head of the agency is not the classifying authority, the agency will refer the request and copies of the requested documents to the originating agency or classification authority.  Naval Criminal Investigative Service Command reports— Requests should be sent to the Naval Criminal Investigative Service Command, Washington, DC 20374-5000, and the requester so notified.  JAG Manual investigative reports— Requests should be referred to the Initial Denial Authority (IDA) for release or denial. Depending upon the type of JAG Manual investigation, see JAGMAN paragraph 0504 b.(4), which states that for a command investigation the IDA is the general courts-martial convening authority (GCMCA) over the command convening the investigation. Litigation-report investigation’s IDA is OJAG, Code 15, while the IDA for a court or board of inquiry is the Echelon II commander over the command convening the court or board of inquiry. If you are not the IDA, make sure you forward the request to the appropriate IDA and you must notify the requestor.  Mishap investigation reports— Requests should be sent to Commander, Naval Safety Center, Code 03, 375 A Street, Norfolk, Virginia 23511-5796, and the requester so notified. Misdirected/misaddressed requests will be promptly readdressed and sent to the cognizant or originating activity for action and the requester so notified. Time Limits The responsible naval activity has 20 working days from receipt of a “perfected” FOIA request, excluding weekends and holidays, to respond. If the naval activity cannot respond within 20 days, it may inform the requester of the reasons for the delay. The delay may be treated as an initial denial of the request, and the requester will be informed of the appeal rights. This is considered a formal extension of time. The activity also may negotiate an informal extension of time with the requester that is mutually agreeable. Exemptions A naval record maybe withheld from disclosure if exempt. For additional guidance on exemptions, refer to SECNAVINST 5720.42 (series).

Public Interest The public interest to be considered under the FOIA is the public’s interest in obtaining official information that sheds light on the agency’s performance of its statutory duties. In the typical case in which one private citizen is seeking information about another, the requester does not intend to discover anything about the conduct of the agency that has possession of the records, and a response to the request would not shed any light on the conduct of the government agency or official. In such a case where no FOIA-type public interest exists, release of any private information about an individual would constitute a clearly unwarranted invasion of personal privacy. In evaluating the public interest apparent in release of the requested records, neither the identity of the requester nor the purpose for desiring the request is relevant. 1-23

Privacy Interest A privacy interest may exist in personal information even though the information has been made available to the general public at some place and time. If personal information is not freely available from sources other than the federal government, the person to whom that information pertains has a privacy interest in its nondisclosure. Often, the very fact that the federal government expended funds to prepare, index, and maintain records containing personal information and the fact the requester invokes the FOIA to obtain the private information indicates that the information is not freely available. Mailing Lists Most naval activities receive FOIA requests for mailing lists— names and home addresses or names and duty addresses. Requests for mailing lists of names and home addresses should be denied as a clearly unwarranted invasion of personal privacy. A FOIA request for a list of names and duty addresses of members attached to units that are stationed in foreign territories, routinely deployable, or sensitive must be denied as a clearly unwarranted invasion of personal privacy. Disclosure is a security threat to those members because it reveals information about their involvement in military actions, the type of naval unit, and their presence or absence from their households. Release aids the targeting of members and their families by terrorists and other persons opposed to the national policy. Lists of names and duty addresses, not covered by the previous policy, are not exempt. Nonjudicial Punishment Results Information on nonjudicial punishment will not normally be released under the FOIA. The information is withheld because the public interest in the routine administrative disposition of employee misconduct rarely outweighs the individual’s privacy interest in the matter. In order to protect the personal privacy of individuals receiving NJP, commands receiving requests for individual NJP records should forward the request to their cognizant IDA with the recommendation that the existence of the records be neither confirmed nor denied, except when the requester is the individual upon whom NJP was imposed. The privacy interest of the member must be balanced against the public interest of the information. Disclosure should be made when the events leading to the nonjudicial punishment are particularly newsworthy or the case involves a senior official abusing the public trust through office-related misconduct such as embezzlement, fraud, or misuse of Government property. In these circumstances, commands should consult with the legal advisor and public affairs officer in their chain of command. Privacy Act The Privacy Act, 5 U.S.C.552a, applies to documents and records in a system of records maintained by an agency from which information is retrieved by the person’s name or other personal identifier, such as a social security number. The Privacy Act balances the government’s need to maintain information about individuals against the right of individuals to be protected from unwarranted invasions of their privacy by government collection, maintenance, use, and disclosure of personal information. SECNAVINST 5211.5 (series) contains DON policy guidance on the Privacy Act and prescribes procedures for notifying individuals of a system of records pertaining to them, granting access to the subject of the records, reviewing request to amend records, disclosing personal information to third parties, and safeguarding personal information. Naval activities may not maintain records retrievable by name or personal identifier unless a system notice has been published in the Federal Register. Maintaining an unpublished system of records is a criminal violation. Information in a Privacy Act system of records may not be disclosed to the public unless (1) the subject of the record consents, (2) the disclosure is 1-24

pursuant to a routine use, released under an exemption for an official use, or (3) by order of a court of competent jurisdiction. Responsibilities For request for access or amendment to records, the system manager must establish and make available upon request rules on requests for access or amendments that conform to SECNAVINST 5211.5 (series). The official with custody of the record may grant access to the requested record even if he or she is not the system manager. Only officials designated as denial authorities in paragraphs 7j and 8k of SECNAVINST 5211.5 (series) may deny a request for access. Blanket requests for notification and/or access to all systems of records within the Navy are not honored. Procedures The requesting individual should request the records in writing, providing the name of the system of records, full name, social security number, and a signed release, if necessary. The system manager or other responsible official will verify the identity of the requesting individual, such as by employee or military identification card or driver’s license, as a subject of the record. If a written request is received, identity may be verified by the requester providing minimum identifying data such as date of birth. If the information is sensitive, a signed and notarized statement of identity may be required. The system manager will grant access to the requested record unless exempt. If necessary, the system manager or other custodial official will inform the requester of any additional information that is needed. The system manager may deny a request for notification, access, or amendment only if there is a significant and legitimate Governmental interest. A request for notification, access, or amendment will be acted on in 10 working days, or a response to the requester will indicate when the request will be acted upon. Action should be completed within 30 days of receipt by the cognizant office. If access should be granted, the system manager or other custodial official will inform the requester in writing and (1) inform the requester where and when the records may be viewed, that a person may accompany the requester, and a copy of the record may be provided upon agreement to pay duplication fees or (2) furnish a copy of the record, if the requester asked for a copy of the record and agreed to pay duplication fees, unless fees were waived. If the system manager or other custodial official determines the request should be denied, in whole or in part, that officer will send the request to the cognizant denial authority with a copy of the requested record and recommendations as to the denial. Disclosure to Others Generally, records in a system of records may not be disclosed except pursuant to a written request of the subject of the record or with the prior written consent of the subject of the record. Disclosure may be made to other DON or DoD personnel who need the records in the performance of their duties, if compatible with the purpose for which the information is maintained. Disclosure may be made upon written assurance that the record will be used solely as statistical research or a reporting record, and the record is not individually identifiable. Disclosure may be made to another agency or instrumentality of any governmental jurisdiction, controlled by the United States, for a civil or criminal law enforcement activity if (1) the activity is authorized by law and (2) the head of the agency or instrumentality made a written request to the head of the agency maintaining the record, specifying the record desired and the law enforcement purpose. 1-25

Disclosure may be made to either House of Congress, or to any committee or subcommittee of Congress to the extent the matter is within its jurisdiction. Disclosure is not authorized to an individual Member of Congress acting on his or her own behalf or on behalf of a constituent without the consent of the constituent. Disclosure may be made in response to an order of a court of competent jurisdiction signed by a judge. Collection of Information Personal information is information private or intimate to the individual and not related solely to official functions. It ordinarily does not include information such as time, place, and manner of, or reasons and authority for, an individual’s act or omission directly related to official duties. Personal information will be collected to the maximum extent possible from the individual, except when (1) there is a need to make sure of the accuracy of the information supplied by verifying the information through a third party, (2) information can only be obtained through a third party, and (3) obtaining information directly from the individual would involve exceptional difficulties or unreasonable costs. A Privacy Act statement must be provided when individuals supply personal information about themselves. The individual need not sign the Privacy Act statement. The Privacy Act statement must include the following:  Authority for the solicitation (statute or executive order)  Brief summary of routine uses for the information, as published in the Federal Register  Purpose for which the information is used  Whether disclosure is mandatory or voluntary and effects of nondisclosure A Privacy Act statement must be provided when requesting a social security number. A social security number may be requested even if not required by federal statute, if the individual is informed that disclosure is voluntary. Litigation Purposes Official documents and information should be made reasonably available for use in federal courts, state courts, foreign courts, and other governmental proceedings unless the information is classified, privileged, or otherwise protected from public disclosure. Requests for documents, testimony, depositions, or interviews of witnesses in connection with litigation will be processed under SECNAVINST 5820.8 (series). Relationship with FOIA and Privacy Act If a FOIA or a Privacy Act request pertains to litigation to which the United States is a present or potential party, the release authority should notify JAG or the General Counsel, as appropriate. Requests for Privacy Act records must be accompanied by a written release from the subject of the record, a court order, or a subpoena signed by a judge of a court of competent jurisdiction. Responsibilities Requests for official information and records will be processed according to SECNAVINST 5820.8 (series) (Release of Official Information for Litigation Purposes and Testimony by Department of the Navy Personnel). Generally, the responsibility to act as the determining authority has been delegated to GCMCA’s and those commands and activities with an SJA assigned. If compliance is inappropriate for any reason, such as the records contain classified or 1-26

privileged information, send the court order or subpoena to the JAG or Associate General Counsel (Litigation) and notify the parties of this action. If the United States is not, and is not reasonably anticipated to become a party to the proceedings, the production in federal or state courts of evidentiary material from JAGMAN investigations, and the service, employment, pay, or medical records of dependent or members of the naval service is authorized upon receipt of a request complying with SECNAVINST 5820.8 (series) , accompanied by a subpoena, court order, or other request signed by the judge of a court of competent jurisdiction. The specific authority of JAG is not required. Production of Official Records Without A Court Order Send any requests for release outside of the DON to JAG when the requests are for one of the following official records:  JAG Manual investigations see JAGMAN paragraph 0504.  Court-martial records  Articles 69 and 73, UCMJ, petitions  Articles 138 and 1150 Complaint of Wrongs Affirmative claims files, except for copies of reports or JAG Manual investigations containing classified or privileged information, may be released by local holders to insurance companies to support claims; to civilian attorneys representing the injured parties and the government’s interests; and to other components of the DoD, without the prior approval of JAG, if the amount of the claim is within the settlement authority of the releaser. SUMMARY This chapter emphasized office organization and management. Their importance to command mission cannot be overstated. Your understanding of both the mission and the people that contribute to its success is an integral element to your success as a manager. It is important for you to remember that in office management the key is involvement. This chapter has also given you some insight into how to prepare the various forms of correspondence that you may be required to use. You will become better at drafting letters, messages, memorandums, endorsements, and other documents, as you gain experience. However, it is always wise to study and have readily available copies of the Department of the Navy Correspondence Manual and NTP-3. Remember, when in doubt, go to the manuals. 1-27

CHAPTER 2 LEGAL RESEARCH As a Legalman (LN), you may be required to locate reference materials for the lawyers in your office. The following paragraphs will help you become more familiar with the types of legal research material. In addition to this, we will also discuss what is meant by citing a legal source and how to use these citations to locate specific references. LEARNING OBJECTIVES: Upon completing this chapter, you should be able to do the following: 1. Know the role paralegals play in legal research 2. Locate reference material as either primary or secondary sources, finding tools 3. Finding cited sources, statues, court decisions, and other sources 4. Automated research system/databases using LexisNexis and Westlaw REFERENCE MATERIALS There are three broad categories that legal reference materials fall into, these being primary sources, secondary sources, and finding tools. Let us look at these categories a little closer and see what types of materials are contained in each. Primary Sources Primary sources have been defined as those recorded rules of human behavior that will be enforced by the state. These rules may be recorded in federal or state statutes, administrative and executive regulations, issued to comply with a legislative authorization, or as court decisions. Statutes— Statutes are published by jurisdiction and in chronological order of enactment. Chronological publications of these laws are called session laws. One such publication of federal laws is Statutes at Large. Because these laws are listed in chronological order and not by subject and date of passage, it is difficult for the researcher to locate a particular law. To help solve this problem, these laws are codified by subject matter and the laws that pertain to a particular subject, regardless of when they were passed, are found together under a specific subject codification. Regulations—Administrative and executive regulations provide the guidelines to be followed in carrying out certain statutes. For example, the Manual for Courts-Martial (MCM) was published according to the directive issued as Executive Order 12473 of August 1, 1984, to comply with federal legislation enacted that affected the application of military justice in the Armed Forces of the United States. Another example is the regulations and instructions used by the Internal Revenue Service to provide the guidelines for implementing federal tax laws. Federal regulations are officially printed in the Federal Register. Because the Federal Register is published in chronological order, the same as Statutes at Large, the same problem exists for the researcher trying to find a specific regulation. To help solve this problem, the Code of Federal Regulations (C.F.R.) was developed and serves the same function for regulations that the United States Code (U.S.C.) serves for statutes. Court decisions— One of the bedrock principles of our judicial system is stare decisis et non quieta movere, which basically means to adhere to precedent and not to unsettle things that are settled. Questions arise daily that require interpretation of the law. These questions are resolved by the courts (usually appellate courts), and these decisions become law. 2-1

Case decisions are collected and published in chronologically arrange volumes. As an LN, you will be concerned primarily with the reports of cases that have been decided by the U.S. Supreme Court, the U.S. Courts of Appeals for the federal circuits, federal district courts, the U.S. Court of Appeals for the Armed Forces (C.A.A.F.), and the Navy-Marine Corps Court of Criminal Appeals (N.M.C.C.A). The case decisions handed down by these courts can be found in official and unofficial publications called reporters. The reporters you will most likely come in contact with are the U.S. Supreme Court Reporter, the Military Justice Reporter, the Courts-Martial Reports, the Federal Reporter, and the Federal Supplement. (NOTE: The last bound volume of Courts -Martial Reports (C.M.R.) was volume 50, published in 1975. The Military Justice Reporter (M.J.), which began publication in 1978, picks up where the C.M.R. leaves off. Those cases reported in advance sheets published between 50 C.M.R. and 1 M.J. is included in 1 M.J.) Additionally, you may have a state and/or regional reporter (from West's National Reporter System) covering the decisions of state and local courts for your command’s location. Not all states have individual reporters available. Many states use the National Reporter System developed by West Publishing Company. Secondary Sources Secondary sources may be defined as those legal materials that are not in any way binding, although they may be persuasive, upon the courts. Included, among others, are treatises and periodicals. Treatises run the gamut from the most scholarly treatment of a particular legal subject to practice guides that make no pretense to scholarly analysis. Depending upon where they fit into this spectrum, they may be divided into the following groups: Scholarly surveys of particular fields in depth Hornbooks, student tests, and treatise abridgements Practitioners’ handbooks in particular fields Specialized monographs on more or less narrow topics Comprehensive commentaries, histories, and works of juris prudence The greatest danger involved to the researcher in the use of treatises is sometimes one of currency. A survey that is one day definitive in a given subject area may become quickly obsolete unless revised to reflect changes in the area. Periodicals Periodicals are issued by law schools, bar associations, private publishers, or anyone else who has something to say and the money to pay for their publication. As you might guess, the quality varies from the first-rate scholarship of the best law school reviews to the hackwork of some special interest groups. In addition to the periodic indexes issued for the individual publication, there are a number of periodical indexes, most useful of which is the Index to Legal Periodicals. The Naval Law Review is the periodical of particular interest to Navy practitioners. Other publications that should prove useful are the Military Law Review (Army) and the Air Force Law Review (formerly the United States Air Force JAG Law Review). Finding Tools As you can see from the previous discussions concerning primary sources, there are many different sources that cover a vast number of laws, regulations, and court decisions. To help the researcher , several different types of materials have been developed to aid in finding the information contained in the primary and secondary sources. The three basic types of finding tools are digests, legal encyclopedias, and citators. 2-2

Digests To impose some sort of order for the more than three million reported case decisions related to federal and state laws, digests were developed to classify these cases according to their legal topics and then arrange these topics in alphabetical order. These digests provide the researcher with citations to specific uses and a very brief, often one-sentence digest of each point of law addressed in each case. The digest (called a headnote when appearing at the head of the case in the reporter) is provided to help the researcher decide which of the cases cited might prove helpful to the researcher if the entire opinion of a particular case were to be examined. Probably the most comprehensive of these digests is the American Digest System published by West Publishing Company. This digest system was developed for use in conjunction with West’s National Reporter System. Three of the other digests published by West are the Federal Digest, the Modern Federal Practice Digest, and the Federal Practice Digest 2d. The Federal Digest is used for finding federal case law from 1754 to 1939, the Modern Federal Practice Digest from 1940 to 1960, and the Federal Practice Digest 2d from 1961 to date. They use a system where general topics are subdivided into smaller subtopics identified by key numbers that can be used for easy reference. The key numbering system was developed by West Publishing Company to help the researcher quickly find applicable laws. The topics and subtopics are set out alphabetically in these digests and identified with key numbers to give the researcher cross-reference to cases involving similar subject matter. Detailed instructions on how to use this key number system can be found in each of the digests. Encyclopedias A second source for finding cases is through the use of a legal encyclopedia. Even though these encyclopedias state the law, they are of dubious value in that they tend to over generalize. The researcher may, however, find in the footnote citations in encyclopedias a source of cases that can be used to branch out through the use of digests or a citator. The national legal encyclopedias are American Jurisprudence 2d and Corpus Juris Secundum, published by the Lawyers Cooperative Publishing Company and West Publishing Company, respectively. Citators Still another type of finding tool that can be used, more for determining the history or status of a case than as an initial source for finding the case, is the citator. The most common of these is Shepard’s Citations. This particular citator is the most comprehensive and widely used citator available in that it allows the researcher to accomplish the following actions:  To trace the judicial history of each reported case, including proceedings following the cited decision  To verify the current status of each reported case so as to determine whether it is still effective law, or has been modified or overruled  To find later cases that have cited the main case  To find citations in periodical articles and attorney general’s opinions One final case finder you may encounter is “Words and Phrases” which is published by West Publishing Company and contains thousands of legally significant words and phrases arranged in alphabetical order. Each of these words or phrases is followed by a definition and a citation to the decision from which the definition was taken. Additionally, this particular case finder is kept up to date with pocket parts issued annually by the publisher. 2-3

Finding Cited Sources The use of citations in law serves as a means to identify the reference materials used in the preparation of legal writings. To standardize the system of citing legal references, the Harvard Law Review Association developed and published a comprehensive and standard system of citations known as The Bluebook, A Uniform System of Citations (U.S.O.C.). The Bluebook, even though it does not adequately provide citation procedures to be used with military law, has been officially adopted for use throughout the Navy. In an effort to supplement The Bluebook in those areas that are not adequately covered, JAG has developed supplemental guidelines, which can be found in JAGINST 5850.2 (series), to be used with citing military law. Although the combined system may at times seem needlessly complicated and arbitrary, it has the virtue of identifying precisely to the reader the exact reference intended by the drafter of legal material. As a LN, you will be required to construct citations to be used in legal writings doing your legal research. You should be familiar with the methods used in citing legal references so you will be able to locate specific cases when you are asked to do so and the only thing you have to work with is a citation. To do this, you will need to know how to translate a citation to locate the source wherein the reference is to be found and the exact page or pages where the reference is located in that source. The following discussion should be useful in helping you become more familiar with the methods that are ordinarily used in citing statutes, court decisions, and other references. In addition to these discussions, specific information and instructions concerning citations may be found in “The Bluebook” and in supplementary material supplied by JAGINST 5850.2 (series). Statutes Federal statutes are ordinarily cited to the U.S.C. by the title and section number, as well as the year the statutes were published. For example, a citation referring to section 501 of Title 10 of the U.S.C. would read 10 U.S.C. 501 (1970). When Statutes at Large are cited, the volume and page number and date published would be used in the citation; for example, 47 Stat. 1470 (1933). However, in practice, reference is almost always made to the U.S.C. You may have occasion to look up a statute that has not yet been incorporated into Statutes at Large or U.S.C. When this occurs, the statute is referred to by the public law number assigned to it. This number can be found in the slip law that is an advanced publication of the statute printed as a means of disseminating this law before incorporating it into Statutes at Large and the U.S.C. A citation using a public law number will tell what session of Congress passed the law, the number assigned to it, the section being referred to, and the date the law was enacted. An example of a citation using a public law number would read, Pub. L. No. 89-320, (Feb 11, 1965). This information can also help you find a public law in Statutes at Large. Citations of state statutes usually refer to the official code for that particular state. In cases where a state statute has not yet appeared in the official code for that state or if that state has no official code, then the citation usually refers to the preferred unofficial code. For example, a citation referring to a particular statute published in chapter 41 of the Massachusetts General Laws would read as Mass. Gen. Laws ch. 41, (1932), which also tells you what section is being referred to and when the statue was published. State statutes may also be cited referring to that particular state’s published session laws, which are the state’s equivalent to Statutes at Large. Court Decisions Court cases are cited by names (plaintiff v. defendant) excerpted from what is called the style of the case. The citation of a court case refers to both the official (where there is one) and unofficial reporter, followed by both the title of the court that made the decision and the year in parentheses. The citation will show you the volume and page number where the cited case may be found. For example, a citation referring to a case decided by the Supreme Court of Virginia would be shown as 2-4

Henderson v. Commonwealth, 215 Va. 811, 213 S.E.2d 782 (1975). The title of the court is not shown in Henderson, supra, because citations to state court decisions are presumed to be referring to the highest court of that particular state unless some other court is named in the citation. A citation to a case decided by the District Court of Appeals in Florida, which has no official reporter, would be shown as Lopez v. State, 372 So. 2d 1136 (Fla. Dist. Ct. App. 1979). Where a court decision has not yet been published in an official or unofficial report, the citation will refer to the slip opinion (an opinion printed in advance of the publishing of the case decision in an official and unofficial reporter) and will cite the style of the case, docket number, the court of record, and the date the case was decided. Normally, citations of cases will provide you with the following information: the name (style) of the case, the name of the reporter and the volume the case can be found in, the page number where the opinion begins, the court that decided the case, and the year or date the decision was made. For example, United States v. Mathews, , 6 M.J. 357 (C.M.A. 1979) refers to a case decided by the U.S. Court of Military Appeals in 1979 and can be found in volume 6 of the Military Justice Reporter on page 357. Additional information concerning case citations and what they mean can be found in The Bluebook and JAG Instruction 5850.2 (series). Other Sources A citation for a treatise would refer to the volume number (if more than one), the author, title, page, section or paragraph number, edition (if more than one have appeared), and the date the treatise was published. For example, a treatise on the History of English Law would be shown as 1 F. Pollock & F. Maitland. The History of English Law 518 (2d ed. 1898). Citations of legal writings contained in journals and periodicals that are paginated consecutively throughout a volume refer to that volume number, abbreviated title of the periodical or journal, page number and year published, as well as the title of the article and name of the author. For example, a citation for an article appearing in the Harvard Law Review would be shown as Chafee, Equitable Servitudes on Chattles, 41 Har. L. Rev. 945 (1928). Legal encyclopedias are referred to in citations by volume, abbreviated title of the encyclopedia, subject title, section number, and date printed. For example, a citation referring to contracts in American Jurisprudence 2d would appear as 12 Am. Jur. 2d Contracts 15 (1965). AUTOMATED RESEARCH SYSTEMS/DATABASES The following paragraphs provide you with a brief overview of automated systems. Whether or not your command uses an automated system depends on the attorneys and budget limitations. LexisNexis and Westlaw There are two major competing computer-assisted research services: Lexis Nexis and Westlaw. These two research systems provide access to a tremendous variety of cases, statutes, administrative regulations, and numerous other authorities. Each service operates in essentially the same manner; most users, however, eventually develop a preference for one or the other. Both services use computer technology to help federal employees and military members obtain more accurate and comprehensive legal research, saving time and effort by performing the following:  Creates and maintains full-text data bases for legal information  Provides computer-assisted research to all federal agencies  Produces and distributes computer-generated research tools such as indexes, digests, and citations  Offers training courses and written materials describing their systems Other available tools within both research services include searching by citation, by topic, by party name, or by docket. One difference between the two services is Lexis uses the Shephard’s Tab and 2-5

Westlaw uses KeyCite to verify that your cases, statutes, and other primary authorities are still valid. The Navy has adopted this automated research as their primary system in the legal profession. SUMMARY Although attorneys are trained to conduct effective legal research, LNs are increasingly being tasked to aid those attorneys in this area. This chapter has described how to carry out legal research by using primary and secondary sources and by citing sources. With a working knowledge of how to use finding tools, you will become an effective paralegal conducting legal research. 2-6

CHAPTER 3 COURT REPORTING Whenever a general court-martial (GCM) or a special court-martial (SPCM) is sitting, a court reporter is recording the proceedings of that court-martial to preserve an account of what occurred on that day. As a court reporter you paint a complete picture of the proceeding by your finished product, the record of trial. The reviewer, the staff judge advocate (SJA), the convening authority (CA), the Navy Marine Corps Court of Criminal Appeals (NMCCA), and the Court of Appeals for the Armed Forces (CAAF) rely solely upon your record of trial to arrive at their decisions. As a court reporter, you must record and transcribe various types of proceedings and then place the transcription of these proceedings into the proper format. The most common types of proceedings you will record and transcribe include courts-martial, Article 32 pretrial investigations, courts of inquiry, and JAGMAN Manual of the Judge Advocate General (JAGMAN) investigations as directed, and depositions. In this chapter you will become familiar with the general qualifications, duties, and functions of the court reporter. You also will become familiar with the different methods used in court reporting, administrative requirements, and standardized transcribing techniques. In addition you will examine these basic functions and duties along with some helpful hints and suggestions that will assist you as you perform your duties as a court reporter. LEARNING OBJECTIVES Upon completing this chapter, you should be able to do the following: 1. Describe the basic duties and expectations of LN duties as a court reporter during a court- martial. 2. Describe the basic expectations of LN duties in preparing records of trial. 3. Describe the basic expectations of LN duties in preparing oral and written depositions. FUNCTIONS OF THE COURT REPORTER The primary function of a court reporter is to record all proceedings verbatim (word for word) and then transcribe what has been recorded into the proper format for that particular proceeding. The court reporter is also responsible for performing several related administrative functions before, during and after each proceeding. Many times these additional functions will include such duties as scheduling and preparing the courtroom, preparing requests for witnesses, preparing and distributing post-trial documents, and preparing confinement orders. Some of these duties are addressed in this chapter and the remainder is addressed in Chapter 6, Pretrial Matters. Before looking at the general duties of the court reporter, we should first take a brief look at the issue of appointment and detailing of court reporters. Appointment and Detailing of Reporters Article 28, Uniform Code of Military Justice (UCMJ ), provides, in part, that “Under such regulations as the Secretary concerned may prescribe, the CA of a court-martial, military commission, or court of inquiry will detail or employ qualified reporters, who shall record the proceedings of and testimony taken before that court or commission.” The Rules for Courts-Martial (R.C.M.) 405(d)(3)(B), Manual for Courts-Martial (MCM), provides, in part, that “The commander who directed the pretrial investigation may also, as a matter of discretion, detail or request an appropriate authority to detail a reporter.” 3-1

R.C.M. 501(c) provides, in part, that “Reporters may be detailed or employed as appropriate but need not be detailed by the CA personally.” The CA may direct that a reporter not be used in an SPCM. Regulations of the Secretary concerned may also require or restrict the use of reporters in SPCMs. A bad-conduct discharge (BCD) may not be adjudged by an SPCM unless a verbatim record of the proceedings and testimony was made. Reporters are not detailed to an SPCM to take a verbatim record unless the SPCM is convened by (1) an officer exercising general court-martial jurisdiction (OEGCMJ) or (2) a GCM CA who is granted the authorization. Reporters are not detailed to summary courts-martial (SCM). Normally the commanding officer (CO) of the Region Legal Service Office (RLSO) directs the employment of reporters. R.C.M. 502(e), MCM, refers to the qualifications of reporters and provides, in part, that “The qualifications of reporters may be prescribed by the Secretary concerned. No person shall act as reporter in any case in which that person is, or has been, in the same case (1) the accuser, (2) a witness, (3) an investigating officer, (4) counsel for any party, or (5) a member of the court-martial or of any earlier court-martial of which the trial is a rehearing, new, or other trial.” Oaths R.C.M. 807(b) provides that “The reporters shall take an oath to perform their duties faithfully.” The JAGMAN 0103d(2)(a) and 0130d(3)(a) refer back to R.C.M. 807(b)2 discussion for the required verbiage of the oath: Oath for reporters : The trial counsel (TC) will administer the following oath to every reporter of a court-martial who has not been previously sworn: “Do you (swear) (affirm) that you will faithfully perform the duties of reporter to this court-martial (so help you God)?” The TC administers the oath to the reporter at the court-martial. When calling the court-martial to order for the first time in a case, the military judge makes sure the name and rank of the detailed court reporter are announced. After all personnel of the court have been accounted for, the TC announces whether the reporter, if one is present, has been previously sworn. If not sworn, the reporter is then sworn. If a reporter is ever replaced during the trial, this fact must be noted in the record. Verbatim Reporting You, as the court reporter, are responsible for recording all proceedings verbatim. There will be instances when you will know beforehand that a verbatim transcript of the proceedings will not be required, as in an SPCM where a punitive discharge is not authorized. There is always the chance that the CA may desire a verbatim transcript, even though such a transcript would not otherwise be required. You cannot prepare a verbatim transcript unless you have previously recorded the proceedings word for word. There are certain portions of a summarized record that must be transcribed verbatim. General Duties of the Court Reporter The most important thing you should always keep in mind when you are detailed as a reporter for any military court or commission is that it is your job to get it all down . It is the duty of the reporter to include in the record everything that is said or takes place in open sessions and in hearings out of the presence of the court members. The reporter does not omit any portion of these proceedings from the record. 3-2

Before Trial Before trial you may be directed to perform other administrative duties, which could include typing and preparing the following documents:  Article 32 investigations  Oral depositions  Investigating officer’s report  Advice of the SJA  Pretrial agreements  Stipulations  Charges and specifications  Cleansed Charge Sheet  Findings and sentence work sheets  Proposed instruction to the members Make sure copies of the appropriate court-martial convening order and any amendments are before each member of the court, military judge (MJ), TC, defense counsel (DC), and the accused. In addition, if the case was originally referred to one convening order and then re-referred to another, you must furnish the original order to the military judge. You also will provide a copy of the charges and specifications, questions forms, and sufficient paper and pencils to all parties to the trial. You must make sure your recording equipment is in proper working condition and the other tools of good reporting are available; for example, extra pencils, extra pre-numbered tapes, chalk, a blackboard, erasers, tags for real evidence, and a reporter’s work sheet. Some of these pretrial administrative duties are addressed in this chapter and some are addressed later in Chapter 6. During Trial There are many duties of the court reporter during the actual proceedings. Of course, the most important duty is the actual verbatim recording of all proceedings. This recording also includes all actions of the witnesses, the accused, counsel, and any other parties to the trial. You may be required to remain in the courtroom during short recesses when the TC is unable to be present. You also will be tasked with securing the courtroom during meal recesses, overnight recesses, and any other period that necessitates the absence of the TC or yourself for extended periods. Make sure any evidence admitted during the trial is secured during such recesses or adjournments. You are authorized, through the military judge, to stop the proceedings for various reasons. Keep these interruptions to a minimum. Reasons for stopping or interrupting a proceeding should be limited to the following list:  You did not hear the testimony of the witness.  You did not hear something said by any other party to the trial.  Time is required to fix malfunctioning equipment.  Time is required to mark exhibits.  Other factors that require your attention to ensure an accurate verbatim transcript. 3-3

After Trial After the trial is complete, you are responsible for retrieving all exhibits that were admitted in evidence (and those offered but not admitted) from the TC and DC and any extra copies of these exhibits that are available. If charts, blackboards, or real evidence were introduced, you need to make the necessary arrangements to have these photographed immediately after the trial or, if time permits, during recesses or adjournments, as directed by the TC. While the military judge or members see the physical evidence, NMCCA, which has fact-finding power, must often rely on photographs or descriptions. The TC has the responsibility of making sure the substituted photographs or descriptions adequately depict the exhibit. After the proceedings you are responsible for cleaning up the courtroom for the next trial and preparing the report of result of trial and a confinement order, if necessary, for the TC. Last but certainly not least, you may be responsible for the preparation of the record of trial in that court. Each RLSO conducts business differently. If you are assigned to the court reporting and transcription shop, you may be required, at times, to transcribe your own courts. However, cases may also be turned in to the supervisor who then assigns them to the next available transcriptionist for preparation. It is, therefore, very important to remember that you may not be the one assigned to transcribe the court you are recording, so do the best job possible. Loss of Recordings The military judge may, before authentication of the record, hold a post-trial session to repeat proceedings in which a verbatim transcript cannot be prepared because of loss of recordings. Retention of Trial Notes For cases in which a summarized record of trial is authorized, retain the notes or recordings of the original proceedings until the record is authenticated. For cases in which a verbatim transcription is required, retain the verbatim notes or recordings of the original proceedings until completion of final action or appellate review, whichever is later. The verbatim notes or recordings may be kept by the TC, an assistant, a court reporter, or the supervisor of the court reporting and transcription shop. Reporter’s Log During the proceedings of a GCM or SPCM, the reporter is responsible not only for recording verbatim the proceedings of the court but also for noting in the record such items as the stages of examination; time of opening, recessing, closing, and adjournment of the court; and the marking of exhibits. The reporter’s log can be a great aid to you both during and after the court. Use this log in any court- martial you record. The log has a place to fill in all the pertinent data that you will need to help in the transcription of the record of trial. GENERAL RECORDING INFORMATION AND REPORTING TIPS In the following paragraphs, you will find some tips to help you produce records of trial that will be consistent and uniform in format. General information on such items as margins, page numbering, abbreviations, grammar, and punctuation is included. Taking a few minutes now to familiarize yourself with these basic rules will save you much time in the future and also enable you to turn out a finished product ready for immediate review. The following information relates primarily to GCMs or SPCMs. We will discuss the preparation of SCM records later in this chapter. 3-4

Margins The left margin of the record of trial should be 1 inch. The right margin should be set 1/2 inch from the side of the page. The top margin on all pages should be 1 1/2 inches to allow room for binding with ACCO fasteners. The bottom margin on all pages should end as close to 1 inch (but not more than 2 inches) from the bottom of the page as possible. When your typed text ends more than 2 inches from the bottom of the page, the following information should be typed in brackets, centered, and bolded, two spaces below the last line of text: [END OF PAGE] Indent two spaces from the left margin for each prefix; for example, TC, DC, PRES, ACCUSED, WITNESS, Q, and A. The second and subsequent lines should be typed flush with the left margin. Examples are as follows: “TC: I object to the last question of the defense on the grounds that it calls for an opinion on the part of the witness.” “Q. Could you please relate, to the members of the court, the circumstances surrounding the burglary on the evening in question?” Numbering Pages Number pages in the center of the page 1/2 inch (three lines) from the bottom of the page. If, during the course of transcribing the record, you accidentally skip a page number or duplicate a page number, correct the error as follows: Skipped page number— For example, numbers jump from 18 to 20, but nothing has been omitted from the transcript. 18 There is no page 19 Next page 20 Number duplicated or extra page to be inserted—Use the preceding page number plus an “a” as in “19a.” At the bottom of the preceding page, type: 19 Next page is 19a On the inserted page, type 19a Next page 20 Abbreviations Unless a word or acronym is actually spoken as an abbreviation (for example, BM1, USS, or U.S. Navy) only the following abbreviations are authorized. Keep in mind that you use the first four of these abbreviations only as prefixes to statements and they are not authorized for use in the text or when transcribing gestures or motions (see Figure 3-1). The last five may be used in the text of the record:  TC: Trial counsel  DC: Defense counsel  PRES: President 3-5

 MJ: Military judge  Mr. Mister  Mrs. Mistress  U.S. United States  USS: United States Ship  Dr. Doctor

COURT-MARTIAL PARTICIPANT ORAL (SPOKEN) TYPED Military Judge JUDGE MJ: President (speaking as presiding officer) PREZ PRES: Court Member MEMBER LT DOE MBR (LT DOE): Trial Counsel PROS TC: Assistant Trial Counsel ATC ATC: Defense Counsel DEF DC: Assistant Defense Counsel ADC ADC: Individual Military Counsel MC IMC: Individual Civilian Counsel ICC ICC: Witness (when speaking but not answering a question on examination) WITNESS WIT

Accused (when speaking but not answering a question on examination as a witness on his or her own behalf) ACCUSED ACC:

Figure 3-1 — CM – Abbreviations. Grammar and Punctuation in Transcription You have previously studied general punctuation in Chapter 1. Certain rules are covered here because you have a greater need to be familiar with them in legal work than in typing correspondence. Use the apostrophe (’) to form contractions; to form possessives of nouns (but not of pronouns); as a single quotation mark; to express feet and minutes; and to form the exclamation mark (unless your typewriter or computer keyboard has an exclamation mark on its keyboard). You form the plurals of letters and of numbers by adding ’s. Within a word the apostrophe is written without spaces. Examples: It’s not true that a company reported its change of policy. Boys’ and girls’ camps are advertised in this month’s issue. Appellate is spelled with two L’s. 3-6

Two spaces must follow a question mark (?) that appears at the end of a sentence. However, in the rare instances that the question mark appears within a sentence, leave only one space after the question mark. Examples: Q. Can he do it? or anyone? Q. What was the percentage of interest you paid? Do not leave spaces between brackets [ ] and the matter enclosed. In the event the matter appearing in brackets appears in the middle of a sentence, leave one space before the opening bracket and one space after the closing bracket. Example: Q. What did you see? A. About this far [gesturing] from the hammer, on the upper side of. . . Place the period and the comma inside the closing quotation marks (”) except in congressional and certain other classes of work showing amendments and in court work with quoted language. Punctuation marks are printed after the quotation marks when not a part of the quoted matter. Examples: Insert the words “growth”, “production” and “manufacture”. This court finds you Guilty, except the word “steal”, substituting therefore . . . . Place the semicolon (;) and the colon (:) outside the closing quotation marks. The question mark and the exclamation mark must be placed outside the closing quotation marks if the marks punctuate the entire sentence. Place them inside the closing quotation marks if they punctuate the quoted material only. Examples: As I was saying, “Seeing is believing.” Did you see the sign, “Off Limits”? He asked me, “What is the punishment for shooting a man with a pistol?” All he said was, “What an awful mess!” Use the single quotation mark (’) when a quotation is enclosed within a quotation. Example: He answered, “I am not willing positively to say, ‘Seaman Jones is the guilty one.” The rules on end spacing are as follows: Two spaces must follow all end punctuation marks and two spaces must follow the colon. When writing whole numbers, the numbers one through nine must be spelled out except when used in conjunction with other numbers in a series (for example, 1, 2, 12, 25, and 50); as a measurement (for example, 1 inch); time (for example, 3 p.m.); decimals (for example, 1.25); age (for example, 6 y ears old); or as a percentage (for example, 2%). At the beginning of a sentence, numbers must be spelled out (for example, Five years ago), except in questions and answers (Q. and A) when time, money, percentage, serial numbers, and so on, are concerned. In such cases use the numerals. Show dates as they are spoken in court (for example, 1 June 1993 or 1st of June 1993). Always use numerals where monetary values are concerned and the money is a specific amount. If the amount is referred to in a general way, use words instead of figures. Examples: Q. How much money was in the bag? A. About a million dollars. Q. Exactly how much? A. $1,055,000.00. When writing fractions and whole numbers, transcribe the fraction by separating the figures with a slant (/); for example, 1/4, 1/2, 1/3, 5/8, 7/8, and 3 3/4. Do not use the fractions that appear on the keyboard. The reason for this is your fractions will be typed consistently throughout the record, because most keyboards have only the 1/4 and 1/2 fractions. An exception to this rule is when the military judge or president of the court gives instructions, closes to vote on the findings and sentence and states “three-fourths (or two-thirds) of the members present at the time the vote was taken concurring . . .” Type these fractions using words. Identification of Speakers Identify the side or person conducting an examination by using one of the following standard stock entries (SSEs):  Questions by the trial counsel:  Questions by the defense: 3-7

 Questions by the military judge:  Questions by the president:  Questions by a court member (LT DOE): Identify individual questions posed by the questioner by a Q. Identify answers by the witness in response to questions posed by a questioner having control of the stage of examination by an A. Identify answers by the witness in response to questions asked by anyone else by WITNESS. Use these prefixes to identify speakers: SLIPS of the TONGUE, FALSE STARTS You must record the testimony of witnesses and the remarks of court personnel and transcribe verbatim all slips of the tongue, false starts, interruptions, and pauses. When the person speaking interrupts himself or herself or pauses, use two hyphens to show this interruption; for example: Q. What did he tell you? A. Well, I– –I’m not really certain. When the person speaking is interrupted by another, use four hyphens to show this type of interruption; for example: Q. What did the commander tell you? A. He told me that– – – – DC: I object. What the commander said is hearsay. Reporter’s Remarks R.C.M. 502(e)(3)(B) states that "The reporter shall record the proceedings and testimony and shall transcribe them so as to comply with the requirements for the record of trial as prescribed in these rules." You must record such acts as a witness pointing to the accused when identifying the accused, or any other motion or movement of personnel in the courtroom (other than spectators). Reporting these reporter’s remarks is called ad libbing. Enclose your remark in brackets, except SSEs, to show that it is a reporter’s remark or an ad lib. Report the swearing, opening, closing, recessing, adjourning of the court, or the calling and excusing of witnesses with SSEs. Notations by the reporter that are required to be enclosed in brackets should commence, if possible, on the same line or on the next immediate line; for example, A. [Pointing in the direction of the accused.] That’s him over there. Insert other reporter notations, where brackets are not required, two lines below the preceding line and indent them two spaces from the left margin; for example: Lieutenant (junior grade) Hatch, the challenged member, withdrew from the courtroom. Standard Stock Entries We have mentioned earlier the SSEs and their use for routine required items of information. The types of information covered by such entries are discussed as follows with examples. Opening and Closing of The Court The reporter is responsible for noting the time the court opens, recesses, closes, and adjourns. Note that the record must show the time (expressed in hours and minutes) and the date of each opening, 3-8

closing, recess, and adjournment of the court. After the court closes, it thereafter opens. After the court recesses or adjourns, it thereafter is called to order. Use the following SSEs for these purposes:  The court closed at 0915 hours, 15 November 1994.  The court opened at 0930 hours, 15 November 1994.  The court recessed at 0915 hours, 15 November 1994.  The court was called to order at 0930 hours, 15 November 1994.  The court adjourned at 0915 hours, 15 November 1994.  The court was called to order at 0930 hours, 15 November 1994. Calling Witnesses The record must show that a witness was called or recalled by the prosecution, the defense, or the court. You must record the witness’ name and, if a military person, rank or grade and armed force; for example: Aviation Storekeeper Third Class John A. Doe, U.S. Navy, was called as a witness for the prosecution, was sworn and testified as follows: Yeoman Second Class Mary N. Christmas, U.S. Navy, was called as a witness for the defense, was sworn and testified as follows: Airman John A. Doe, U.S. Navy, was recalled as a witness for the court, was reminded that he was still under oath and testified as follows: Stages of Examination The reporter records and transcribes the proper stage of examination during the proceedings. The stages of examination usually take place in the following order: direct examination, cross- examination, redirect examination, recross-examination and examination by the court. When transcribing the record, type the stage of examination in capital letters and centered on the page, two lines below the SSE calling the witness or after the previous stage of examination. The following example shows where and how the stage of examination and the identity of the examiner should appear in the record: Direct Examination Questions by the trial counsel: Q. State your full name, last, first, and middle, for the record. A. John Adam Doe. A brief method for recording the stages of examination, the party conducting the examination and the first question the party will ask is shown in Figure 3-2. Note that a witness called for the defense is initially examined by the prosecution. This examination is normally limited to establishing the identity of the witness and whether the witness knows the accused in the case. The defense then conducts the actual direct examination of its witness. The prosecution would conduct a cross-examination of a defense witness. Use the brief method shown in Figure 3-2 for recording the previous information.

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Figure 3-2 — Abbreviations Used in Recording Stages of Examination. Marking Exhibits Another one of your duties during the proceeding will be to mark the exhibits received in evidence. You must mark prosecution exhibits in the following manner: Prosecution Exhibit 1 for identification (insert consecutive Arabic numerals for each succeeding exhibit admitted). Mark exhibits for the defense as follows: Defense Exhibit A for identification (insert consecutive capital letters; for example, A, B and C for each succeeding exhibit admitted). Transcribe defense exhibits in the record in the same manner as prosecution exhibits, except letter them instead of numbering them. Mark appellate exhibits with Roman numerals; for example, Appellate Exhibit I, Appellate Exhibit II. After an exhibit is admitted in evidence, it is your responsibility to delete the words for identification . You will do this when directed by the military judge or president during the proceedings. If copies or a true description is submitted for original evidence received during the trial, the authenticity of the copies or description must be attested to. This is usually done by the TC. Here are a few examples: A true copy A true description A true photograph

Attest: Attest: Attest: J. A. DOE J. A. DOE J. A. DOE LT, JAGC, USN LT, JAGC, USN LT, JAGC, USN Trial Counsel Trial Counsel Trial Counsel You must identify real evidence in the same manner as documentary exhibits; however, you will place identifying markings on a tag and attach them to the exhibit. Sample Pleas and Findings The manner in which you will transcribe the accused’s pleas and the findings of the court in the record are shown as follows. Remember, these are only samples. You must record and transcribe the 3-10

pleas and findings verbatim exactly as stated by the defense or accused or as announced by the presiding officer: Pleas Sample pleas of not guilty—one Charge, one Specification: To the Specification and the Charge Not guilty. or To the Specification of the Charge Not guilty. To the Charge: Not guilty.

Many Specifications and Charges; but plea to all consistent: To all Specifications and Charges: Not guilty.

One Charge and two Specifications: To Specification 1 of the Charge: Guilty. To Specification 2 of the Charge: Not guilty. To the Charge: Guilty. Two Charges—one with one Specification and one with two Specifications: To the Specification of Charge I: Not guilty. To Charge I: Not guilty. To Specification 1 of Charge II: Guilty. To Specification 2 of Charge II: Not guilty. To Charge II: Guilty. Guilty with exceptions and substitutions (Charged with larceny but pleading to the Lesser Included Offense (LIO)— wrongful appropriation): To the Specification: Guilty, except the word "steal", substituting therefore the words "wrongful appropriate"; to the excepted words, Not guilty, to the substituted words, Guilty. 3-11

To the Charge Guilty. Sometimes the defense may plead: To all Charges and Specifications: Not guilty (or Guilty). Findings Sample finding of guilty—one Charge and one Specification Of the Specification of the Charge: Guilty. Of the Charge: Guilty. or Of the Specification of the Charge: Guilty. Sample finding of guilty—one Charge and two Specifications: Of Specification 1 of the Charge: Not guilty. Of Specification 2 of the Charge: Guilty. Of the Charge: Guilty. Sample finding two Charges—one guilty and one not guilty, one Specification under each Charge: Of the Specification of Charge I: Guilty Of Charge I: Guilty Of the Specification of Charge II: Not guilty. Of Charge II: Not guilty. Sample finding in case of two Charges—two Specifications under each Charge, with the second Specification under each Charge found not guilty: Of Specification 1 of Charge I: Guilty. Of Specification 2 of Charge I: Not guilty. Of Charge I: Guilty. Of Specification 1 of Charge II: Guilty. Of Specification 2 of Charge II: Not guilty. Of Charge II: Guilty. Sample finding in case of one Charge with one Specification thereunder, of which the court found the accused guilty with exceptions and substitutions: Of the Specification of the Charge: Guilty, except the words “in the nighttime burglarize break and 3-12

enter” and “with intent to commit larceny therein”, substituting therefore the words “unlawfully enter” and “ with intent to commit a criminal offense, to wit: willful damage military property therein”; of the excepted words, Not guilty, of the substituted words, Guilty. Of the Charge: Not guilty, but guilty of a violation of Article 130. Sample finding where there are several Charges and Specifications thereunder and the finding of the court is guilty to all the Charges and Specifications: Of all Specifications and Charges: Guilty. If three charges and specifications were deliberated upon by the court and the finding of the court was guilty as to the first and third charges with their specifications, but not guilty to the second charge and its specification, the findings should be recorded in the following manner: Of Charges I and III and the Specifications thereunder: Guilty. Of Charge II and the Specification thereunder: Not Guilty. If five charges were referred to trial and a motion for a finding of not guilty was sustained as to Charge II, the CA withdraws Charge IV after arraignment, the accused pleads guilty to Charge I and the court found the accused guilty of Charge III and its specification, but not guilty of Charge V and the specification thereunder, the findings would be set out as follows: Of Charges I and III and the Specifications thereunder: Guilty. Of Charge V and the Specifications thereunder: Not guilty. No mention should be made in the findings as to withdrawn charges or charges upon which a determination of not guilty has previously been made by the court. In an appropriate case, where the accused is found not guilty of all charges and specifications, or of the charge and specification, amounting to an acquittal, the findings need not be indented or blocked, but should instead appear as one continuous statement by the president, as shown in the following example: PRES: Doe, it is my duty as president of this court to advise you that the court in closed session and upon secret written ballot has found you not guilty of (the) (all) Specification and Charge(s). 3-13

RECORDS OF TRIAL AND CONTENTS GENERAL AND SPECIAL COURTS-MARTIAL The final format of the record of trial is dictated by the MCM and supplemental regulation is issued by the OJAG (JAGINST 5813.1(series)). Making sure the record is correct and complete is one of your greatest responsibilities as a court reporter. Types There are two types of records of trial, verbatim and summarized. Verbatim records of trial are required in all GCM and SPCM cases when any part of the sentence adjudged exceeds six months confinement, forfeiture of pay greater than two-thirds pay per month or any forfeiture of pay for more than six months, or exceeds any other punishments that may be adjudged by a special court -martial, or a bad-conduct discharge has been adjudged. Summarized records may be used only when R.C.M. 1103(b)(2)(B) permits it. Copies and Distribution In GCMs and SPCMs that require a verbatim transcript, prepare an original and four copies of the record of trial and send them to the CA. In all other GCMs and SPCMs, prepare an original and one copy of the record of trial and send them to the CA. In a joint or common trial you will need to prepare an additional copy of the record for each accused. The convening or higher authority may direct that additional copies of the record of trial of any GCM or SPCM be prepared. You should check the policy before sending the record of trial to make sure the correct number of copies is provided. You also must prepare a copy of the record for delivery to each accused after it is authenticated. Security Classification If the record of trial contains matter that is classified according to Department of the Navy Information Security Program Manual, OPNAV M-5510.30, the TC must make sure a proper security classification is assigned to the record of trial and on each page that classified material appears. Do not include classified matter in a record of trial whenever it can be avoided. Before delivery of a copy of a classified record to the accused, send it to the CA who will remove all classified matter from it. The CA prepares a certificate showing the page(s) removed or partially deleted and the exhibits removed. The cleansed copy of the record with the original certificate is then delivered to the accused. Attach a copy of the certificate and a statement signed by the accused acknowledging receipt of the cleansed copy of the record to the original record of trial. General Content and Arrangement When you send a record of trial to the Judge Advocate General (JAG) or send it out for a judge advocate’s review under Article 64(a), UCMJ, arrange the record and bind all the allied papers in the following order: 1. Front cover and inside front cover (chronology sheet) of DD Form 490. 2. Post-trial checklists 1, 2, or 3 and 4, 5 and 6. 3. Judge advocate’s review pursuant to Article 64(a) if any. 4. Request of the accused for appellate defense counsel, or waiver or withdrawal of appellate rights, if applicable. 5. Briefs of counsel submitted after trial, if any. 6. Court-Martial Data Sheet, DD Form 494. 3-14

7. Court-martial orders promulgating the result of trial as to each accused (10 copies verbatim and 4 copies summarized). 8. When required, signed recommendation of the SJA or the legal officer, in duplicate, together with all clemency papers, including clemency recommendations by the court members. 9. Matters submitted by the accused pursuant to R.C.M. 1105. 10. Charge Sheet, DD Form 458 (unless included at the point of arraignment in the record). 11. Congressional inquiries and replies, if any. 12. Investigating Officer’s Report, DD Form 457, pursuant to Article 32, UCMJ, if such investigation was conducted, followed by any other papers that accompanied the charges when referred for trial, unless included in the record of trial proper. 13. Advice of the SJA or the legal officer, when prepared pursuant to Article 34, UCMJ. 14. Requests by counsel and action taken by the CA; for example, requests about delay, witnesses, and depositions. 15. Records of former trials. 16. Record of trial proper in the following order: 1. Errata sheet, if any. 2. Index sheet with the reverse side showing receipt by the accused or the DC for a copy of the record or a certificate in lieu of receipt. 3. Record of proceedings in court, including Article 39(a) sessions, if any. 4. Authentication sheet, followed by certificate of correction, if any. 5. Action of the CA and, if appropriate, action of the OEGCMJ. 6. Exhibits admitted in evidence. Order is prosecution and defense. 7. Exhibits not received in evidence. You must note the page of the record of trial where each exhibit was offered and rejected on the front bottom of each exhibit as shown: Offered Page ____________/Not Admitted Page____________ 8. Appellate exhibits. These exhibits can include proposed instructions, written offers of proof or preliminary evidence (real or documentary) and briefs of counsel submitted at trial. 9. Back cover sheet. The TC is ultimately responsible for arranging the record as indicated, except that items 7, 8 and 16e are inserted by the convening or reviewing authority, as appropriate and items 11 and 15 are inserted by either the TC or the convening or reviewing authority, whichever has custody of them. Authentication of the Record A record is authenticated by the signature of a person specified who declares that the record accurately reports the proceedings. No person may be required to authenticate a record of trial if he or she is not satisfied that it accurately reports the proceedings. In SPCMs where a BCD has been adjudged and in all GCMs, the military judge present at the end of the proceedings, authenticates the record of trial or that portion over which the military judge 3-15

presided. If more than one military judge presided over the proceedings, each military judge authenticates the record of proceedings over which that military judge presided. If the military judge cannot authenticate the record of trial because of his or her death, disability, or absence, the TC present at the end of the proceedings authenticates the record of trial. If the TC cannot authenticate the record of trial because of his or her death, disability, or absence, a member authenticates the record of trial. In a court-martial composed of a military judge alone, or as to sessions without members, the court reporter authenticates the record of trial when this duty would fall upon a member. A person authorized to authenticate a record may authenticate the record only as to those proceedings at which that person was present. In an SCM, the SCM officer authenticates the record of trial. Correction of the Record In GCMs and SPCMs, the TC examines the record of trial before authentication and causes those changes to be made that are necessary to report the proceedings accurately. The TC cannot change the record after authentication. The TC may personally correct and initial the necessary changes. If major changes are necessary, the TC will direct the reporter to rewrite the entire record of trial or the portion of the record that is defective. The TC must make sure the reporter makes a true, complete and accurate record of the proceedings so the record will meet the applicable requirements. After you send the record to the CA, the record may be corrected only by a certificate of correction or proceedings in revision. These two procedures are discussed later in this chapter. Service of the Record of Trial In each GCM and SPCM, you must serve a copy of the record of trial on the accused as soon as the record of trial is authenticated. Attach the accused’s receipt for the copy of the record of trial to the original record of trial. If it is impractical to secure a receipt from the accused before you send the original record of trial to the CA, prepare a certificate indicating that a copy of the record of trial has been transmitted to the accused. Include on this certificate the means of transmission and the address. This certificate must be attached to the original record of trial. Once the accused’s receipt is received at the RLSO, send it to the CA as soon as possible. If it is impractical to serve the record of trial on the accused because of (1) the transfer of the accused to a distant place, (2) the unauthorized absence of the accused, (3) military exigency, or (4) if the accused so requests on the record at the court-martial or in writing, send the accused’s copy of the record to the accused’s DC, if any. The TC will attach a statement to the record explaining why the accused was not served personally. If the accused has no counsel and if the accused is absent without authority, the TC prepares an explanation for the failure to serve the record. Send the explanation and the accused’s copy of the record along with the original record to the CA. The accused is provided with a copy of the record as soon as possible after its return. Distribution of Records of Trial Send the original and all copies of the record of trial, except for the accused’s copy, to the CA. Retain one copy in the court reporting shop. 3-16

Summarized Records of Trial In those cases not requiring a verbatim record, prepare a summarized record of trial using DD Form 490. The fact that a summarized record of trial is to be prepared does not affect any of the procedures of the trial itself. As mentioned before, you should record everything verbatim because events could occur that require a verbatim record, even though it might appear before trial that a summarized record would be sufficient. Pleas Set forth the pleas verbatim as stated in court. If the accused pleads guilty, the ruling officer will explain to the accused the meaning and effect of the guilty plea. This explanation includes (1) the elements of the offense, (2) that the plea admits every element charges and every act or omission alleged and (3) that the plea authorizes conviction without further proof. The ruling officer also advises the accused of the maximum authorized punishment that may be adjudged for the offense upon conviction. The record of trial must show that this was done. Therefore, it is recommended that this process be set forth verbatim. Prosecution Case Set forth the testimony of witnesses in summarized form in first person, present tense. If no witnesses are called by the TC, the word None must be typed in the record at this point. At the conclusion of the TC’s case, insert the words The prosecution rested.

Defense Case Again, set forth the testimony of witnesses in summarized form in first person, present tense. If no witnesses are called by the defense, insert the word None in the record at this point. If no evidence or testimony is presented by the accused, the record must so reflect. The words, The defense rested, should appear at the conclusion of the DC’s case. Findings Set forth the findings verbatim as announced in court. Before announcing the findings, the ruling officer may state that all manuals and legal references or authorities were removed from the closed session of the court. If such a statement is made, the record should so indicate by the addition of an entry reflecting this statement. Personal Data on the Accused If any data on the accused is incorrect, such data must be noted and copied into the record with the substance of the corrective action taken noted. Previous Convictions The TC presents evidence of admissible previous convictions, if any, and this information is included in the record of trial. Matters in Mitigation and Extenuation The ruling officer advises the accused that he or she may present any matters he or she desires in mitigation or extenuation, including unsworn statements. If any matters are presented, transcribe them into the record in chronological order in which presented. If testimony is presented, the same procedures are used as when testimony is taken from other witnesses. 3-17

Sentence Before closing the court, the ruling officer instructs the court on the maximum sentence that may be adjudged. The record must reflect that this was done. The ruling officer also instructs the court on any matters presented in mitigation and extenuation. It is recommended that these instructions be set forth verbatim. You must set forth the sentence verbatim as announced in court. Again, before announcing the sentence, as before announcing findings, the ruling officer may state that all manuals and legal authorities were removed from the closed session of the court. The addition of an entry to this effect should be made if such a statement is made by the ruling officer. Recess or Adjournment Use SSEs in the record for recording recesses or adjournment, or for accounting for parties to the trial. The entry you should use for this latter purpose is as follows: All parties to the trial who were present when the court recessed are again present in court. If a member fails to return from a recess of the court, the reason must be shown. After arraignment, a member may be excused by the CA only for good cause. Use an SSE for recording closings and openings of the court. No entry to show an accounting of parties to the trial need be made on opening the court except when necessary to show the absence of a party after the court was in closed session. Again, the reason must be shown for a member’s absence.

Authentication A summarized record is authenticated in the same manner as a verbatim record. Appendix 13 of the MCM contains further information on the preparation of summarized records of trial and you should refer to it when preparing a summarized record of trial. Recording Contempt Proceedings What is contempt of court? It is defined as any willful disregard of the authority of a court or disobedience of its order. Article 48, UCMJ, gives courts-martial the power to punish for the following contemptuous acts: menacing words, signs, or gestures and any disturbance of the court’s proceedings by riot or disorder. These acts must occur in the preserve of the court to be punished under Article 48, UCMJ. Any person, whether subject to the UCMJ or not (with the exc eption of the ruling officer or members of the court), including the accused, TC, DC, reporter, witnesses, spectators, and even the CA may be punished for contempt. There is no separate record of contempt proceedings. Normally, a contempt proceeding is a part of the record of trial. If the court desires, however, the record of contempt proceedings may be transcribed separately so that it may be sent to the CA immediately for his or her action. Whether this is done or whether it is transcribed in the record of trial is a matter within the discretion of the ruling officer. See Figure 3-3 for the recommended format to use in recording contempt proceedings. There is no appeal or review of contempt action other than an automatic review by the CA. If, on review, the CA is satisfied that contempt occurred and that the punishment adjudged is appropriate, the CA may order the punishment executed. The CA may (1) require the offender to serve any confinement adjudged pending formal review of the proceedings, (2) reduce the punishment, and (3) designate an action-appropriate place of confinement, if necessary. The offender must be notified, in writing, of the holding and the punishment and of the CA’s action. To be effective, the punishment adjudged for contempt must be approved by the CA. 3-18

Figure 3-3 — Sample Format for Contempt Proceedings. Certificate of Correction A certificate of correction is a document that corrects an error or omission so the record of trial will reflect what actually occurred at the trial. Keep in mind if the error or omission actually occurred at the trial, the record is correct as it stands and a certificate of correction must not be used. The CA returns the record to the military judge, president, or SCM, as appropriate, with a memorandum indicating the defects to be corrected and directing that a certificate be prepared. The TC prepares the certificate. No erasures, additions, deletions, or other physical corrections are made in the record. The certificate is authenticated in the same manner as the record of trial. A copy must be served on the accused who must receipt for it. The receipt is attached to the original record. The certificate of correction is included in the original record immediately following the authentication page. See Figure 3-4 for a sample format to be used for certificates of correction. 3-19

Figure 3-4 — Format for Certificate of Correction. Proceedings in Revision Proceedings in revision may be directed to correct an apparent error, omission, or improper or inconsistent action by the court-martial that can be rectified by reopening the proceedings without material prejudice to the accused. Because the action at proceedings in revision is corrective, proceedings in revision may not be conducted for the purpose of presenting additional evidence. Examples of when proceedings in revision are appropriate include (1) correction of an ambiguous or apparently illegal action by the court-martial, (2) inquiry into the terms of a pretrial agreement and (3) inquiry to establish the accused’s awareness of certain rights. The normal steps to be followed in proceedings in revision are as follows: The CA returns the record to the TC with a letter pointing out the defects and directing proceedings in revision. The court convenes. Only members who participated in the original findings and sentence may sit in the proceedings in revision. Some members may be absent so long as a quorum is present. However, if the court that heard the case has already been dissolved by an order, there can be no proceedings in revision. If necessary, the CA may detail a new military judge, TC and DC who must be sworn during the proceedings in revision (unless previously sworn). If, however, a military judge 3-20

alone adjudged the original findings and sentence, a new military judge may not be detailed to proceedings in revision. The TC reads the CA’s letter in open court and announces that it will be inserted in the record. The ruling officer then instructs the court, as necessary. The court closes to reconsider the findings or sentence and cure the defect. The court opens and announces its action. The court may revoke its former findings or sentence and announce a new finding or sentence; or it may adhere to its former findings and sentence. The court then adjourns. You will prepare the record of proceedings in revision and have it authenticated in the same manner as the original record of trial. Use SSEs in recording opening, closing, calling the court to order, adjournments, and so on. Insert the original of the proceedings in revision in the original record of trial immediately following the authentication page, or certificate of correction, if used. Copies are placed in all copies of the record. Serve a copy on the accused and attach his or her receipt to the original record of trial. Then return the record to the CA for action. Summary Court-Martial Records The record of trial by SCM consists of the original and at least two copies that include the following:  The pleas, findings, and sentence and, if the accused was represented by counsel at the SCM, a notation to that effect  A statement that the accused was advised of the matters set forth in R.C.M. 1305(d)(1)(B)  If the Summary Court-Martial Officer (SCMO) is the CA, a notation to that effect Appendix 15, MCM, is a sample Record of Trial by Summary Court-Martial, DD Form 2329. This form is filled out by the SCMO and becomes a part of the record of trial. In addition, if the accused is found not guilty for any charge that the accused entered a plea of not guilty, the charge sheet and a summary of any evidence presented during trial is included. The summary of evidence considered by the SCMO must be attached to the record only when the accused has entered a plea of not guilty to any charge and was then found guilty by the SCMO.

Matters considered by an SCMO in mitigation and extenuation must, in all cases, be summarized and attached to the record. Although no reporter is required for an SCM, if it appears that the case will be rather lengthy or that several witnesses will be called to testify, it is probable that a reporter, if one is available, will be detailed to record the case. However, in the vast majority of cases, no reporter is detailed because the necessary clerical functions can normally be performed by any clerical ass istant. In those cases, the SCMO summarizes the testimony himself or herself. The SCMO authenticates each copy of the record by signing them. If the sentence ordered executed includes confinement on bread and water or diminished rations, the medical certificate is attached to the original copy of the record of trial. Distribution The SCMO will cause a copy of the record of trial to be served on the accused as soon as it is authenticated. The SCMO also causes the accused’s receipt for the copy of the record of trial to be obtained and attaches to the original record of trial a certificate that the accused was served with a copy of the record. If the record of trial was not served on the accused personally, the SCMO 3-21

attaches a statement explaining how and when such service was accomplished. If the accused was represented by counsel, that counsel may be served with the record of trial. Forwarding The original and one copy of the record of trial are sent to the CA for action. DEPOSITIONS A deposition may be ordered whenever, after preferral of charges, due to exceptional circumstances of the case, it is in the interest of justice that the testimony of a prospective witness be taken and preserved for use at an Article 32 investigation or a court-martial. A CA who has the charges for disposition or, after referral, the CA or the military judge may order that a deposition be taken on request of a party. A deposition is the out-of-court testimony of a witness under oath in response to questions by the parties that is reduced to writing or recorded on videotape or audiotape or similar material. A deposition is an oral examination while a written deposition is an interrogator y. Written interrogatories are questions, prepared by the prosecution, defense, or both, that are reduced to writing before submission to a witness whose testimony is to be taken by deposition. The answers, reduced to writing and properly sworn to, constitute the deposition testimony of the witness. A deposition may be taken by agreement of the parties without necessity of an order. A deposition may be taken to preserve the testimony of a witness who is likely to be unavailable at the investigation or at the time of trial. Part or all of a deposition may be used on the merits or on an interlocutory question as substantive evidence if the witness is unavailable. A deposition may be admitted in a capital case only upon offer by the defense. In any case, a deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent, the person who testified, as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require the proponent to offer all that is relevant to the part offered and any party may offer other parts. A deposition that is transcribed is ordinarily read to the court-martial by the party offering it. The transcript of a deposition may not be inspected by the members. Objections may be made to testimony in a written deposition in the same way that they would be if the testimony were offered through the personal appearance of a witness. Types of Depositions There are two types of depositions— written and oral. A written deposition consists of a document that sets forth a series of written questions prepared by counsel and these are referred to as interrogatories and cross-interrogatories. The other part of the document consists of the answers of the deponent that were given orally in the presence of the deposition officer and sworn to. A written deposition may be used against an accused only when the accused is present at the taking of the deposition or when the accused expressly waives his or her right to be present. The Interrogatories and Deposition, DD Form 456, May 2000 (Figure 3-5), illustrates this form. An oral deposition consists of a document that sets forth questions asked personally of the deponent by counsel and the deponent’s answers. This question-and-answer session is accomplished in the presence of the deposition officer, counsel for the accused and the government, the accused, and a reporter. 3-22

Figure 3-5A — Interrogatories and Deposition, DD Form 456. 3-23

Figure 3-5B — Interrogatories and Deposition, DD Form 456. 3-24

Figure 3-5C — Interrogatories and Deposition, DD Form 456. 3-25

Figure 3-5D — Interrogatories and Deposition, DD Form 456. 3-26

Figure 3-5E — Interrogatories and Deposition, DD Form 456. DIRECT EXAMINATION Questions by the trial counsel: Q. State your full name, grade, organization and armed force. A. Water T. Door, Aviation Boatswain’s Mate Second Class, Naval Air Station, Pensacola, Florida. Q. And your armed force, please? A. United States Navy, sir. Q. What is your social security number, Petty Officer Door? A. 666-66-6666, sir. Q. Petty Officer Door, do you know Airman Boat? A. Yes, sir, I do. Q. If he is present, would you please point to him and call him by name? A. Airman Boat, sitting over there [pointing in the direction of Airman Boat]. Q. Door, what are your duties? A. I am acting right now as a plane captain. Q. I see. In that capacity, did you have direct control over Airman Boat? A. Yes, sir, I did. Q. Did you give him any specific instructions on 31 December 20CY , which might be relevant to this case? A. Yes, sir, I did. During this period of time we had been on a half-day schedule because of the Christmas holiday period and, seeing as this schedule ended on the 31st, I told Boat that he was to be at work at 0700 hours on 2 January. On the 2nd, he was not at work at 0700, and I reported it to the Master Chief. TC: No further questions. 3-27

Figure 3-5F — Interrogatories and Deposition, DD Form 456. CROSS-EXAMINATION Questions by the defense: Q. When did you last see Airman Boat? A. I last saw him on 31 December, sir. Q. You didn’t go with him then? A. No, sir. I believe he left with Airman Frost, who also works for me. Q. Did you say anything else to Boat, other than what you have testified to on direct examination? A. No, sir, I did not. Q. And that was the last time you saw him? A. Yes, sir, the last time until the Shore Patrol brought him back. REDIRECT EXAMINATION Questions by the trial counsel: Q. When you last saw Airman Boat, where was he at that time? A. Leaving the hangar, sir. Q. And he was with Airman Frost, is that right? A. Yes, sir. RECROSS-EXAMINATION Questions by the defense: Q. Was Airman Boat in uniform or civilian clothes when you last saw him? A. He was in uniform. Q. Was he carrying anything like a suitcase or package of any type? A. Not that I can recall, sir. Q. Did you personally inform someone that Boat was UA? A. Yes sir, I notified the Command Master Chief. DC: I have no further questions. TC: I have nothing further. TC: That concludes the deposition. 3-28

Procedures for Taking Depositions For oral depositions, the accused has the right to do the following:  Be present except when (1) the accused, absent for good cause, fails to appear after notice of time and place of the deposition, (2) the accused is disruptive, or (3) the deposition is ordered instead of producing a witness on sentencing and the authority ordering the deposition determines that the interests of the parties and the court-martial can be served adequately by an oral deposition without the presence of the accused.  Be represented by counsel. Each witness giving an oral deposition is examined under oath. The scope and manner of examination and cross-examination are such as would be allowed in the trial itself. The government makes available to each accused, for examination and use at the taking of the deposition, any statement of the witness that is in the possession of the government and that the accused would be entitled at trial. For written depositions, the accused has the right to be represented by counsel for the purpose of taking a written deposition, except when the deposition is taken for use at an SCM. No party has a right to be present at a written deposition. The party requesting a written deposition submits to the opposing counsel a list of written questions to be asked of the witness. Opposing counsel examines the questions and is allowed a reasonable time to prepare cross-interrogatories and objections, if any. The normal steps to be followed in the taking of a written deposition are as follows: 1. The side desiring the deposition gives the other side written notice that the deposition has been authorized by the CA; advises of the time and place it will be taken and the name and address of each person to be examined; and furnishes a list of written interrogatories to be asked the deponent. 2. The opposing counsel prepares cross-interrogatories and objections. 3. The interrogatories, objections and cross-interrogatories are submitted to the CA, or to the court if it is in session. 4. The TC prepares the Interrogatories and Deposition, DD Form 456, including therein the interrogatories, cross-interrogatories and objections. 5. The TC sends the deposition form to the RLSO command nearest the deponent with a cover letter, an addressed return envelope and a subpoena for a civilian witness, if necessary. 6. The command receiving the deposition form appoints a deposition officer and a reporter, if necessary. 7. Oral answers are recorded on the deposition form, even if an objection is set forth to the questions. The court will rule on the objections at the trial. The deposition officer must not make any rulings on the objections. 8. The deponent examines the deposition and signs it. 9. The deposition officer authenticates the deposition and returns it to the TC. The normal steps to be followed in the taking of an oral deposition are as follows: 1. The side desiring the deposition gives the other side written notice that the deposition has been authorized by the CA, advises of the time and place it will be taken and provides a memorandum stating the reasons for the deposition and the points desired to be covered in an oral examination of the deponent. 2. The opposing counsel then submits a similar memorandum. 3-29

3. The memorandums are submitted to the CA (or the court, if in session) who may prepare additional memorandums covering other points to be covered. 4. The TC then prepares the form for the deposition and it, along with the memorandums, is mailed to the command nearest the deponent under a cover letter with an addressed return envelope and subpoena for a civilian witness, if necessary. If the deposition is to be taken locally, the CA appoints a deposition officer who, together with counsel, takes the deposition. 5. The command receiving the deposition form appoints a deposition officer, counsel for the accused and a reporter. However, if charges have been referred to trial, the accused must consent to the appointment of a second counsel (other than counsel who will represent the accused before the court) to represent him or her. 6. The deposition is then taken. 7. Oral questions and the answers are transcribed verbatim, signed by the deponent, authenticated by the deposition officer and returned to the TC. DD Form 456, (Figure 3-5), illustrates the form used for a written deposition. Figure 3-6 shows the format to be used in the court for an oral deposition.

Figure 3-6A — Sample Format for Oral Deposition. 3-30

Figure 3-6B — Sample Format for Oral Deposition. 3-31

Figure 3-6C — Sample Format for Oral Deposition. Other Reporting and Transcription Duties On occasion you may be called on to record proceedings other than military courts or investigations. You could be called on to record meetings or conferences, administrative discharge boards, Article 39(a) sessions, Article 32 investigations, or courts of inquiry or other fact-finding bodies required to conduct a hearing for which a substantially accurate record of what transpired at the meeting or conference is needed or required. There is no prescribed or standard format for such proceedings, with the exception of an Article 39(a) session and an Article 32 investigation. You should seek guidance on the format of the record from some responsible person concerned with the meeting or conference. By using basically the same method that you use in court reporting, you should be able to produce an accurate record of the proceedings in the format desired or directed by appropriate authorities. TC: Those objections will be noted and included in the record. TC: The recorder, Legalman Second Class Door, has been previously sworn. TC: I will now swear the deponent, Mr. Hatch. Close D. Hatch, civilian, was called as a witness for the prosecution, was sworn and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. Will you state your full name, please? A. My full name is Close Hatch, ma’am. Q. Do you have a middle name? A. My middle name is Dee, ma’am. Q. Do you have a social security number? A. Yes, I do, ma’am, 333-33-3333. Q. Are you currently in the armed forces? A. Yes, ma’am. Q. When do you intend to depart? A. In the morning. ----------------------------------------------------------------------------------------------------- -- The deposition continues ----------------------------------------------------------------------------------------------------- -- TC: Let the record reflect that these proceedings terminated at 1408 hours 12 September 20CY . 3-32

SUMMARY In summation, you will find yourself right in the middle of important investigations, inquiries, or judicial proceedings for which an accurate record is important. Court reporting is both a challenging and rewarding duty that must be done accurately and efficiently if it is to be of benefit to officials who are charged with the proper administration of the Navy. Your job, as a reporter, is to provide this accurate and efficient clerical support. 3-33

CHAPTER 9 ADMINISTRATIVE SEPARATIONS In this chapter you will be given a general working knowledge of the regulations and procedures of administrative separations. However, whenever you are involved in administrative separations, review all reference material, as two cases are never the same. The policy of the Navy is to promote readiness by maintaining high standards of conduct and performance. To maintain these standards, it is necessary to provide a variety of means for the orderly and timely administrative separation of naval personnel to:  Make sure the Navy is served by individuals capable of meeting required standards of duty, performance, and discipline;  Maintain standards of performance and conduct through appropriate separation and characterization of service that stress the traditional concept of honorable military service; and  Achieve authorized force levels and grade distribution. Retaining individuals in the naval service who will not or cannot conform to naval standards of conduct, discipline, and performance creates a high cost in terms of pay, administrative efforts, degradation of morale, and substandard mission performance. Both situations represent an inefficient use of limited defense resources. We will use the terms discharge and separation in discussing the termination of a service obligation.  Discharge—complete severance from all naval status gained by the enlistment or induction concerned.  Separation—a general term that includes discharge, release from active duty, transfer to the Fleet Reserve or Retired List, release from custody and control of the military services, transfer to the Individual Ready Reserve (IRR), and similar changes in active or reserve status. LEARNING OBJECTIVES Upon completing this chapter, you should be able to do the following: 1. Describe the basic applicable regulations of LN duties regarding specific administrative separation cases. 2. Understand the basic policy and procedures of LN duties regarding administrative separations. TYPES OF ENLISTED ADMINISTRATIVE SEPARATIONS There are two types of separations given by the Armed Forces of the United States to enlisted service members: (1) punitive discharges and (2) administrative separations. Punitive Discharges Punitive discharges are authorized punishments of courts-martial. They can only be awarded as an approved sentence of a court-martial following a conviction for a violation of the Uniform Code of Military Justice (UCMJ). There are two types of punitive discharges. The first type is a dishonorable discharge (DD). A DD can only be adjudged by a general court-martial (GCM) and is a separation under dishonorable conditions. The second type of punitive discharge is a bad-conduct discharge (BCD). A BCD can be 9-1

adjudged by either a GCM or a special court-martial (SPCM) and is a separation under conditions other than honorable. Administrative Separations Members of the naval service may be separated administratively for many reasons. Some separations are characterized and some are not. Any member being separated, except those separated for immediate reenlistment, must be advised of the purpose and authority of the Naval Discharge Review Board (NDRB) and the Board for Correction of Naval Records (BCNR) at the time of processing for such a separation. Characterized Separations Separations are characterized as honorable, general (under honorable conditions), or under other than honorable (OTH) conditions. Honorable — An honorable characterization is when the quality of the member’s service generally met the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. General (Under Honorable Conditions) — A general characterization is when the quality of the member’s service has been honest and faithful; however, significant negative aspects of the member’s conduct or performance of duty outweighed positive aspects of the member’s service record. In the absence of a specific finding from an administrative board, a characterization of service as General may be awarded based on a review of a Sailor’s overall service record. Under Other Than Honorable Conditions — An OTH characterization is when the conduct involving one or more acts of omissions that constitute a significant departure from the conduct expected of members of naval service. Other Than Honorable Conditions (OTH) can be awarded only if administrative board procedures were used, regardless of whether the board was held, when a member requests an OTH in lieu of trial by court-martial (see MILPERSMAN 1910-106), or when a member requests transfer to the Fleet Reserve in lieu of administrative processing (see MILPERSMAN 1910-166). The OTH must be approved by a General Court-Martial Convening Authority (GCMCA), Navy Personnel Command (NAVPERSCOM), or Secretary of the Navy (SECNAV) (see MILPERSMAN 1910-704). The Department of Veterans Affairs makes its own determination with respect to the benefits as to whether the discharge was under conditions other than honorable. Uncharacterized Separations These types of separations are separations that, due to the short duration of service, are uncharacterized. Entry Level Separation — A member in an entry level status (first 180 days of a period of continuous active military service) will ordinarily be separated with an entry level separation (ELS). The exceptions to this are (1) when characterization under OTH conditions is authorized under the reason for separation and is warranted by the circumstances of the case and (2) when characterization as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. These types of cases must be approved by the SECNAV. 9-2

Void Enlistment or Induction — A member whose enlistment or induction is void will not receive a discharge certificate, characterization of service, or an ELS. The separation will be an order of release from custody and control of the Navy. Reasons supporting a void enlistment include the following:  Enlistment without the voluntary consent of a person who has the capacity to understand the significance of enlisting. This may include enlistment of a person who was intoxicated or insane at the time of enlistment. It may also include a person who was coerced into enlisting by being presented with the option of enlisting or going to jail  Person under the age of 17  Deserter from another service BASIS FOR SEPARATING ENLISTED PERSONNEL This section lists the types of separations available for the particular bases of separation, including the applicable procedures, including counseling where required, and defines these bases in general terms. Figure 9-1 shows you an overview of all the possible types of administrative separations, the characterization of service that can be awarded for each type separation, the applicable Naval Military Personnel Manual (MILPERSMAN) articles, and the type of procedure you use to effect the separation. Selected Changes in Service Obligation Separation under this article is appropriate for general demobilization, reduction in authorized strengths, immediate enlistment or reenlistment, and other early-out programs. Also, acceptance of an active duty commission or permanent appointment, or acceptance into a program, for example, officer candidate school (OCS), leading to an active duty commission appointment will result in a separation under this article. The member must submit an official letter of request for separation via his or her commanding officer (CO) to the NAVPERSCOM. The request must include a copy of the acceptance or appointment letter from the officer program and a copy of the reporting requirement for the officer program. The NAVPERSCOM makes final determination on the member’s request. The member will receive an honorable, general, or ELS characterization of service. For additional guidance on separation processing by reason of selected changes in service obligation, refer to the MILPERSMAN. 9-3

Voluntary Reasons. The following are reasons for administrative separation (ADSEP) that are considered voluntary. (COG refers to “convenience of the government.”)

Reason See MPM Selected Changes in Service Obligation (active duty) 1910-102 Expiration of Active Obligated Service (EAOS) 1910-104 In Lieu of Trial by Court-Martial 1910-106 COG - Early Release to Further Education 1910-108 COG - Hardship 1910-110 COG - Pregnancy 1910-112 COG - When a Reservist Becomes a Minister 1910-118

Involuntary Reasons. The following reasons for ADSEP are normally considered involuntary unless the specific circumstances of the separation indicate otherwise.

Reason See MPM COG - Physical or Mental Conditions 1910-120 COG - Personality Disorder(s) 1910-122 COG - Parenthood 1910-124 COG - Review Action 1910-126 COG - Being an Alien 1910-127 Defective Enlistments and Inductions - Minority 1910-128 Defective Enlistments and Inductions - Erroneous Enlistment 1910-130 Defective Enlistments and Inductions - Defective Enlistments 1910-132 Defective Enlistment and Inductions - Fraudulent Entry into the Naval Service 1910-134 Delayed Entry Program (DEP) 1910-136 Misconduct - Minor Disciplinary Infractions 1910-138 Misconduct - Pattern of Misconduct 1910-140 Misconduct - Commission of a Serious Offense 1910-142 Misconduct - Civilian Conviction 1910-144 Misconduct - Drug Abuse 1910-146 Homosexual Conduct 1910-148 Alcohol Rehabilitation Failure 1910-152 Entry Level Performance and Conduct 1910-154 Unsatisfactory Performance 1910-156 Unsatisfactory Participation in the Ready Reserve 1910-158 Supremacist and Extremist Conduct 1910-160 Family Advocacy Program (FAP) Rehabilitation Failure 1910-162 Best Interest of the Service (BIOTS) 1910-164 Administrative Action for Fleet Reserve/Retired Reserve Eligible Personnel 1910-166 Physical Disability 1910-168 Separation by Reason of Physical Fitness Assessment Failure 1910-170

Table 9-1 — Reasons for Separations.

9-4

Other Reasons. The following are other reasons for ADSEP, and are considered involuntary.

Reason See MPM Disposition of Enlisted Personnel Disenrolled from a Navy Officer Candidate Program (including the Naval Academy) 1910-182 Disposition of Enlisted Personnel Accepted for Appointment to the Military Academy, the Air Force Academy, or the Coast Guard Academy 1910-184 Disposition of Enlisted Personnel Disenrolled from the Military Academy, the Air Force Academy, or the Coast Guard Academy 1910-186 Table 9-1 — Reasons for Separations—Continued. Expiration of Enlistment, Fulfillment of Service Obligation, or Expiration of Tour of Active Service Unless voluntarily or involuntarily retained beyond normal expiration of term of service, enlisted members will be discharged upon normal date of expiration of enlistment, extension of enlistment, or period of induction, provided the member does not have additional service obligations. The member will receive an honorable, general, or ELS characterization of service. For additional guidance on separation processing by reasons of expiration of enlistment, fulfillment of service obligation, or expiration of tour of active service, refer to the MILPERSMAN. Convenience of the Government The NAVPERSCOM may authorize or direct the separation of enlisted or inducted members before their expiration of enlistment. A member cannot request separation for reasons pertaining to involuntary discharge or separation. You may not separate a member for convenience of the government until all outstanding disciplinary actions involving the member are resolved. Characterization of service will be honorable, general, or ELS. COs with special court-martial convening authority (SPCMCA) have the authority to separate the member provided the member has received counseling (when required) and all disciplinary action has been completed (if applicable). If the member objects, send the case to the appropriate separation authority for final determination. There are several subcategories of the convenience of the government basis for discharge. See MILPERSMAN for further guidance. Hardship A member may request separation when a genuine undue hardship exists. The member’s request must show that:  A severe hardship exists, not normally encountered and resolved by other members of the naval service.  The hardship affects the member’s immediate family.  The hardship is not of a temporary nature and cannot be resolved within the near future.  The member and his or her family have made every reasonable effort to alleviate the hardship.  The hardship has occurred or has been severely aggravated since entry into the service.  There are no other family members or relatives nearby who are capable of providing the necessary assistance. 9-5

 The discharge or release of the member will result in the elimination or material alleviation of the hardship. Except under extraordinary circumstances separation for hardship will not be authorized solely for financial or business problems, indebtedness, personal convenience, member’s physical or mental health, non-compliance with the family care plan, moral support to a family member whose life expectancy is estimated at less than 6 months, custody battles, or divorce proceedings. You must inform enlisted personnel who desire to request separation for hardship reasons of the proper procedures to follow. You should explain to the member that once a request is approved by the SPCMCA, it is irrevocable except in the most unusual circumstances. The request for hardship discharge format and a list of required enclosures can be found in the MILPERSMAN. The SPCMCA sends all approved or disapproved hardship requests to the NAVPERSCOM for review and record purposes. The characterization of service will be honorable, general, or ELS. For additional guidance on separation processing by reason of convenience of the government due to hardship, refer to the MILPERSMAN. Pregnancy This type of separation is voluntary. A written request by the service member initiates the process. The request may be denied if the member is serving in a critical rate, has received special compensation during the current enlistment, has not completed obligated service incurred, or has executed orders in a known pregnancy status. Officers exercising SPCMCA are authorized to separate members requesting separation under this article. COs or officers in charge (OICs) with SPCMCA send the request to NAVPERSCOM for final action when the member has not completed obligated service incurred for fully or partially funded education or has not completed obligated service incurred for enlisted education and training. Characterization of service will be honorable, general, or ELS. For additional guidance on separation processing by reason of convenience of the government due to pregnancy, refer to the MILPERSMAN. Parenthood This category is for separation of a member who is unable to perform duties assigned, is repetitively absent, or is unavailable for worldwide assignment or deployment due to parenthood. NAVPERSCOM or officer exercising SPCMCA may direct separation. Commands may not initiate separation processing until the member has been counseled formally about his or her deficiencies and has been afforded an opportunity to overcome the deficiencies. Use the notification procedure for processing. The characterization of service will be honorable, general, or ELS. For additional guidance on separation processing by reason of convenience of the government due to parenthood, refer to the MILPERSMAN. Further Education This category allows for separation of a member to attend college, vocational school, or technical school. The requested separation must be within 3 months of the member’s expiration of active obligated service (EAOS). NAVPERSCOM is the approving authority for this early release program. COs or SPCMCAs are delegated authority to separate members within 90 days of their EAOS. 9-6

For additional guidance on separation processing by reason of convenience of the government due to furthering of education, refer to the MILPERSMAN. Conscientious Objectors Conscientious objectors are persons who, by reason of religious training and belief, have a firm, fixed, and sincere objection against participating in war in any form or the bearing of arms. No vested right exists for any member to be discharged from the Regular Navy at his or her own request before his or her EAOS even for conscientious objection. NAVPERSCOM must approve a member’s administrative discharge before completion of his or her service obligation. If separation is deemed warranted, the type of discharge is determined by the member’s service record. When processing a member’s request for separation by reasons of conscientious objection, refer to the MILPERSMAN for procedures and guidelines. Designation as a Surviving Son and/or Daughter Enlisted members who become surviving sons or daughters as defined in the MILPERSMAN may apply and promptly be discharged. Any request for discharge under this article will be submitted in writing only by the member and may be approved by NAVPERSCOM. Characterization of service will be honorable, general, or ELS. For additional guidance on separation processing by reason of convenience of the government due to surviving son or daughter status, refer to the MILPERSMAN. Other Designated Physical or Mental Conditions This category provides for the separation of members on the basis of designated physical or mental conditions considered inherent or developmental defects that do not constitute a physical disability. Such conditions are those considered to interfere with a member’s performance of duty or pose a threat to his or her safety or well-being. These conditions include but are not limited to the following:  Motion/air sickness—must be verified by an otolaryngologist (ENT) doctor. No counseling is required before initiation of separation processing.  Enuresis (bed-wetting)—must be medically confirmed by an urologist. No counseling is required before initiation of separation processing.  Somnambulism (sleepwalking)—must be medically confirmed. A sworn statement from the military member must be included documenting at least one sleepwalking episode. The episode must be witnessed by at least two military members. No counseling is required before initiation of separation processing.  Allergies—must be medically confirmed by an allergy or internal medicine evaluation. No counseling is required before initiation of separation processing.  Excessive height—must be medically confirmed by an orthopedic consultation. No counseling is required before initiation of separation processing.  For additional guidance on separation processing by reason of convenience of the government due to physical or mental conditions, refer to the MILPERSMAN. Personality Disorders Separation may be directed by NAVPERSCOM or an officer with SPCMCA when a member has been diagnosed with a personality disorder and that such condition will interfere with the member’s performance of duty or pose a threat to his or her safety or well-being. The member’s CO is the initial 9-7

authority responsible for determining if and when a member will be processed. Members may be separated under this article provided that:  Medical diagnosis is made by a competent military medical authority that concludes that the disorder is of such severity that it renders the member incapable of serving adequately.  There is documented evidence that the diagnosis of personality disorder interferes with the member’s performance of duty.  Documented interference with the member's performance of duty must be a part of the CO’s endorsement, as mere presence of a personality disorder is not a bar to naval service.  Counseling has been initiated whereby the member has been advised of his or her deficiencies and has been afforded the opportunity to overcome those deficiencies. *Separation for personality disorder is not authorized if service-related PTSD is also diagnosed. Send any discharge requests that require approval from NAVPERSCOM for final determination. Make sure cases approved by an SPCMCA are sent to NAVPERSCOM with the required documentation. For additional guidance on separation processing by reason of convenience of the government due to personality disorder, refer to the MILPERSMAN. Aliens A member who is neither a natural born nor a naturalized citizen of the United States is an alien. A member may be separated upon his or her request with the approval of NAVPERSCOM on the basis of being an alien who no longer wishes to serve. Characterization of service will be honorable, general, or ELS. For additional guidance on separation processing by reason of convenience of the government due to status as an alien, refer to the MILPERSMAN. Physical Fitness Assessment (PFA) Failure ADSEP processing is mandatory for members when they do not achieve prescribed physical readiness standards by failing to pass three physical fitness assessment (PFA) cycles in a 4-year period. COs with SPCMCA have the authority to effect the separation provided the member has been counseled via Page 13, all disciplinary action is complete, and the member does not object to the separation. ADSEP packages for all personnel with over 18 years of active duty or 18 qualifying years of service will be forwarded to NAVPERSCOM. Use the notification procedure for processing. The characterization of service will be honorable, general, or ELS. For additional guidance on separation processing by reason of physical fitness assessment failure, refer to the MILPERSMAN and OPNAV 6110.1(series). Physical Disability This category provides for separation of a member on active duty, or active duty for training in excess of 30 days, by reason of physical disability upon determination that he or she is physically unfit to perform the duties of his or her rate. A medical board must determine that a member is unable to perform the duties of his or her rate in such a manner as to reasonably fulfill the purpose of his or her employment on active duty. 9-8

NAVPERSCOM, Reserve Enlisted Personnel Section, authorizes separations for inactive duty members, and members on active duty are separated locally by their COs. Characterization of service will be honorable, general, or ELS. A member may be separated for disability according to the Disability Evaluation Manual, SECNAVINST 1850.4(series). For additional guidance on separation processing by reason of physical disability for active and inactive duty members, refer to the MILPERSMAN. Defective Enlistments and Inductions - Erroneous Enlistment This category allows separation of a member on the basis of erroneous enlistment, reenlistment, induction, or extension of enlistment when:  The enlistment would not have occurred if the relevant facts had been known by the Navy or had appropriate directives been followed;  The enlistment was not the result of fraudulent conduct on the part of the member; and  The defect is unchanged in any material respect. A member may also be separated under this category on the basis of not meeting physical standards for enlistment. If after discovering that a member’s enlistment may be erroneous, and the CO with SPCMCA recommends that the member be retained, initiation of separation processing is not required when the defect is no longer present or the defect, other than a medical condition, may be waived, and a waiver is obtained from the Chief of Naval Personnel. Characterization of service will be honorable unless ELS is appropriate. Use the notification procedure. SPCMCAs or higher have the authority to effect the separation. Send all completed cases by letter of transmittal to NAVPERSCOM for review and/or final determination. For additional guidance on separation processing by reason of defective enlistments and inductions due to erroneous enlistment, refer to the MILPERSMAN. Defective Enlistment and Inductions - Defective Enlistment This category permits separation of a member by reason of defective enlistment and induction on the basis of defective enlistment. A defective enlistment exists when:  The member reasonably relied upon a material misrepresentation by recruiting personnel and was induced to enlist by a commitment for which the member was not qualified;  The member received a written enlistment commitment from recruiting personnel for which the member was qualified that cannot be fulfilled by the naval service; or  The enlistment was involuntary, for example, one that was induced by fraud or duress or undue influence and not the product of a free and unconstrained choice. Characterization of service will be honorable unless ELS is appropriate. COs of recruit training commands are authorized under this article to discharge members under their command. For members not assigned to recruit training commands, SPCMCA or higher is the separation authority. For additional guidance on separation processing by reason of defective enlistment, refer to the MILPERSMAN. Defective Enlistment and Induction - Minor This category is for discharge of a member for a defective enlistment and induction on the basis of being a minor. 9-9

A member under age 18 is a minor. The minimum age for enlistment is 17. Written consent of a custodial parent or legal guardian must be obtained before enlistment of a minor. The type of uncharacterized separation given is governed by the member’s age when separation processing is commenced or completed. A member who is a minor under the age of 17 is discharged with an order of release from the custody and control of the Navy. If the minor who enlisted without proper consent has attained his or her 17th birthday, discharge is authorized or directed upon satisfactory evidence of true age. An application for discharge must have been submitted by a custodial parent or legal guardian and received by the Navy within 90 days of enlistment to effect the discharge of a member 17 years old. If the member has attained the age of 18 prior to discovery of a defective enlistment/induction, retain unless CO determines that it is in the Navy's best interest to separate the member. Characterization of service will be: 1. Under age 17, order of custody or release; 2. Age 17, ELS. The notification procedure is used. COs with SPCMCA or higher are separating authority. For additional guidance on separation processing by reason of defective enlistment due to minority, refer to the MILPERSMAN. Defective Enlistments and Inductions - Fraudulent Entry into Naval Service This category provides for separation of members on the basis of procurement of a fraudulent enlistment, induction, or period of service through any knowingly false representation or deliberate concealment about any of the qualifications or disqualifications of military service. Characterization of service will be honorable, general, or ELS. If the fraud involves concealment of a prior separation for any characterization other than honorable, or the concealed offense would warrant consideration for a discharge under OTH conditions, process the member for a discharge under OTH conditions. Use either the notification or administrative board procedure depending on the type of discharge sought. COs with SPCMCA or higher are authorized to separate members with honorable, general, or ELS characterization of discharge. GCMCAs or NAVPERSCOM are authorized to separate members with OTH characterization of discharge. For additional guidance on separation processing by reason of fraudulent enlistment, refer to the MILPERSMAN. Entry Level Performance and Conduct Separate a member for entry level performance or conduct for the following reasons:  It is determined that the member is unqualified for further military service by reason of unsatisfactory performance or conduct, as evidenced by incapability, lack of reasonable effort, failure to adapt to the naval environment, or minor disciplinary infractions.  A member with broken service fails to satisfactorily complete indoctrination training. Nothing in this article prevents separation of a member in an entry level status under another basis for separation. Do not initiate separation processing until the member has been counseled about the deficiencies and has been afforded an opportunity to overcome those deficiencies. Use the notification procedure with the following modification in the member’s statement of awareness: “I understand that I am being considered for an administrative discharge by reason of entry level 9-10

performance and conduct. I have been advised that if the proposed separation is approved it will result in my separation with an uncharacterized discharge identified as entry level separation.” COs with SPCMCA have the authority to effect the separation provided the member has received counseling, all disciplinary action is complete, and the member does not object. Use the notification procedure. Send the processed case by letter of transmittal to the NAVPERSCOM. (In those cases where the member objects or the CO does not have the authority to process, send the case to the NAVPERSCOM by either letter of transmittal or message.) Characterization of service will be ELS. For additional guidance on separation processing by reason of entry level performance and conduct, refer to MILPERSMAN. Unsatisfactory Performance Separation of a member under this category is authorized when it is determined that the member is unqualified for further naval service by reason of unsatisfactory performance. Unsatisfactory performance is demonstrated by one or more of the following:  Receipt of an enlisted performance evaluation with one or more 1.0 marks in any performance trait. Counseling must be completed and subsequently violated. Physical fitness assessment failures must be processed under MILPERSMAN 1910-170.  An overall 2.49 cumulative performance mark average for two consecutive evaluations. Counseling must be completed between evaluations.  c. Promotion recommendation less than promotable with no improvement in the recommendation (i.e., significant problems to progressing) for two consecutive cycles. Example: member receives two consecutive progressive evaluations. Counseling must be completed between the two evaluations.  Loss of Navy enlisted classification (NEC) code for other than medical reasons. Counseling must be completed prior to loss of NEC.  Sailors who execute orders for conversion, and subsequently fail to complete the formal training required and assigned via Perform to Serve program. Counseling must be completed prior to failure and the member must be given the opportunity to overcome noted deficiencies.  Denial or revocation of security clearance, thereby precluding ability to perform duties in assigned rating. For information regarding rate conversions, see MILPERSMAN 1440-010. Member must sign the Letter of Intent or be counseled per note 1 prior to processing.  Sailors who lose their ability to carry or handle weapons in the performance of their duties due to the Lautenberg Amendment due to qualifying conviction for misdemeanor crimes of domestic violence. Counseling must occur prior to separation processing and it is recommended to be completed upon reporting aboard their command for duty.  You may not use this basis for separation for a member in an entry level status or when processing for misconduct is appropriate. An Administrative Remarks Counseling/Warning that specifically addresses deficiencies (i.e., performance of assigned tasks and duties in a manner that is not contributory to unit readiness and/or mission accomplishment, and/or failure to maintain required proficiency in rate as evidenced by …) must be documented on a NAVPERS 1070/613, and must have been violated. Characterization of service will be type warranted by service record (TWSR), which is either honorable or general. COs with SPCMCA may affect the separation provided the member does not object to the separation. If the member objects to separation, NAVPERSCOM is the separation authority. 9-11

Use the notification procedure. Send the processed case by letter of transmittal or message to NAVPERSCOM. For additional guidance on separation processing by reason of unsatisfactory performance and conduct, refer to the MILPERSMAN. Drug Abuse Rehabilitation Failure A member who has been referred by his or her CO to a Level II or III rehabilitation treatment program for personal drug abuse may be separated when he or she:  Demonstrates an inability or refusal to participate in, cooperate in, or successfully complete a Level II or III rehabilitation program;  Has an alcohol incident or drug-related incident anytime in his or her career following completion of Level II or III and there is no potential for further service;  Fails to follow a directed Level II or III aftercare program; or  Returns to drug abuse following Level II or III rehabilitation treatment and there is no potential for further service. Characterization of service will be TWSR (honorable or general or ELS). Use the notification procedure. COs with SPCMCA may affect the separation provided the member does not object. If the member objects, NAVPERSCOM is the separation authority. Send the processed case by letter of transmittal to NAVPERSCOM . The CO’s comments must indicate if the member is or is not drug dependent as diagnosed by a physician or clinical psychologist. Message submission is optional. For additional guidance on separation processing by reason of drug abuse rehabilitation failure, refer to the MILPERSMAN. Alcohol Abuse Rehabilitation Failure or Multiple DUIs/DWIs A member who has been referred by his or her CO to a Level I or above rehabilitation treatment program for personal alcohol abuse may be separated when he or she:  Demonstrates an inability or refusal to participate in, cooperate in, or successfully complete the program;  Has an alcohol incident or drug-related incident anytime in his or her career following completion of treatment;  Fails to follow a directed aftercare program; or  Returns to alcohol abuse following treatment. Nothing in this article prevents the separation under any other basis for separation, in appropriate cases, of a member who has been referred to such a program. Characterization is TWSR or ELS. Use the notification procedure. COs with SPCMCA may affect separation provided the member does not object. If the member objects, the GCMCA or NAVPERSCOM is the separation authority. Forward the processed case by letter of transmittal to NAVPERSCOM. For additional guidance on separation processing by reason of Alcohol Abuse Rehabilitation Failure or multiple DUIs/DWIs, refer to the MILPERSMAN. Misconduct You may separate a member for misconduct when it is determined that the member is unqualified for further military service by reason of one or more of the following:  Minor disciplinary infractions 9-12

 Pattern of misconduct  Commission of a serious offense (processing not mandatory)  Commission of a serious offense (processing mandatory)  Civilian conviction (processing not mandatory)  Civilian conviction (processing mandatory) You may not initiate separation processing for a series of minor disciplinary infractions or a pattern of misconduct until the member has been counseled. Reflect the counseling via a Page 13 entry in the member's service record. Counseling and rehabilitation are not required for commission of a serious offense or civilian conviction ADSEP Use the administrative board procedure when mandatory processing is required or member's CO believes an OTH is warranted. The notification procedure is authorized for use when mandatory processing is not required and the member's CO believes the circumstances do not warrant an OTH. COs with SPCMCA may act as separation authority when a member is separated with a general or honorable discharge. The member's GCMCA or NAVPERSCOM is the separation authority when an OTH is recommended. Forward all completed administrative separation packages to NAVPERSCOM via a letter of transmittal. For additional guidance on separation processing by reason of misconduct, refer to the MILPERSMAN. We will now explore each of the previous subcategories under the Misconduct heading in more detail. Minor Disciplinary Infractions Minor disciplinary infractions are evidenced by a series of at least three but not more than eight minor violations of the UCMJ (none that could warrant a punitive discharge and none that are drug-related) within the current enlistment that were disciplined by not more than two punishments under the UCMJ. Before initiating processing the member must have violated a Page 13 counseling. Pattern of Misconduct A pattern of misconduct is defined as discreditable involvement with civil and/or military authorities as evidenced by one or more of the following:  Two or more nonjudicial punishments (NJPs), civilian convictions, or courts-martial (or a combination thereof).  Three or more periods of unauthorized absence, each of more than 3 days but less than 30 days duration.  A set pattern of failure to pay just debts.  A set pattern of failure to provide adequate support to dependents or failure to comply with civil courts orders, degrees, or judgments concerning dependent support.  Violation of a NAVPERS 1070/613 specifically addressing non-support. A member must have violated a NAVPERS 1070/613 prior to processing for Pattern of Misconduct. All offenses processed under Pattern of Misconduct must have occurred in the member's current enlistment. Commission of a Serious Offense (Processing Not Mandatory) An individual may be processed when a punitive discharge would be authorized by the Manual for Courts-Martial (MCM) for the same or a closely related offense. 9-13

Commission of a serious offense does not require adjudication by judicial or non-judicial punishment; however, the offense must be substantiated by a preponderance of the evidence. Commission of a Serious Offense (Processing Mandatory) Processing is mandatory for the following:  When an individual commits extremely serious misconduct, such as, but not limited to, homicide, arson, or armed robbery, that resulted in, or had the potential to result in, death or serious bodily injury.  Illicit use of inhalants (huffing) or excessive use of prescriptions, over-the-counter medications, or SPICE.  Incident involves sexual behavior that deviates from socially acceptable standards of morality and decency. Such behavior may include, but is not limited to:  Lewd and lascivious acts,  Sodomy,  Indecent assault,  Indecent exposure,  Indecent acts,  Incestuous relationships,  Possession of child pornography. o Child sexual abuse (If child sexual abuse occurs and incest is involved, notify NAVPERSCOM immediately.)  Sexual harassment under the following circumstances: o Threats or attempts to influence another's career for exchange of sexual favors. o Rewards in exchange for sexual favors. o Unwanted sexual contact of a sexual nature, which, if charged under the UCMJ, could warrant a punitive discharge as per the MCM. Civilian Conviction (Processing Not Mandatory) This subcategory allows for processing of a member based on a conviction by civilian authorities or action taken that is equivalent to a finding of guilty provided the offense could warrant a punitive discharge or the sentence includes confinement for 6 months or more without regard to suspension or probation. Separation processing may be initiated whether or not the member has filed an appeal or has stated an intention to do so. Civilian Conviction (Processing Mandatory) An individual must be processed based on a conviction by civilian authorities, or action taken that is equivalent to a finding of guilty, that involved an offense that either resulted in, or had the potential to result in, death or serious bodily harm. Misconduct Due to Drug Abuse Use the administrative board procedure when a member is mandatorily processed for separation by reason of misconduct due to drug abuse based upon one or more military or civil convictions for the following: 9-14

 Drug abuse—the illegal or wrongful use or possession of controlled substance(s)  Drug trafficking—the sale, transfer, or possession with intent to sell or transfer controlled substance(s)  Drug paraphernalia—all equipment, products, and materials that are used, intended for use, or designed for use in injecting, ingesting, inhaling, or otherwise introducing into the body controlled substances For guidance as to when separation processing is mandatory, refer to OPNAVINST 5350.4 (series).

Figure 9-1 — Authorized Use of Urinalysis COs with SPCMCA or higher may process a member under the notification procedure when separation processing is for the following:  Member self refers to a qualified self-referral representative with intent to acquiring treatment and is found to be drug dependent by proper medical authority.  Process is based on fitness for duty or certain service directed urinalysis.  Voluntarily disclosed evidence of prior personal drug abuse during course of treatment. For additional guidance on separation processing by reason of misconduct due to drug abuse, refer to the MILPERSMAN. Separation in Lieu of Trial by Court-Martial This category provides for a member to request separation in lieu of trial by court-martial. Charges must have been preferred against the accused with respect to an offense for which a punitive 9-15

discharge is authorized to be awarded. The member’s CO must determine that the member is unqualified for further naval service. If a member is serving in paygrade E-4 or above, he or she must also request administrative reduction to paygrade E-3 before the request is approved. Characterization of service will normally be OTH, but ELS may be assigned under certain cases. Refer to the MILPERSMAN for the proper format for the member to use to submit the request. Send the request for discharge via the chain of command to the officer exercising general court- martial jurisdiction (OEGCMJ). The member’s CO must recommend approval or disapproval and certify the accuracy of the charges and enclose the proper enclosures. The OEGCMJ is authorized to approve or disapprove such requests. The OEGCMJ may also order the discharge executed and direct reduction to paygrade E-3 if the member is serving in a higher paygrade. When final action is taken, send the original request with all enclosures and endorsements to NAVPERSCOM for inclusion in the member’s permanent record. For additional guidance on separation processing by reason of separation in lieu of court-martial, refer to the MILPERSMAN. Security This category permits separation of a member by reason of security when retention is clearly inconsistent with the interests of national security (for example, cases of treason or espionage). Recommendations for separation must cite valid evidence that there is a reasonable basis for doubting the member’s loyalty to the U.S. Government. When a CO determines that separation may be appropriate, obtain approval from the NAVPERSCOM before initiating separation processing. Characterization of service will be honorable, general, or OTH. Use the notification procedure except where circumstances warrant an OTH in which case use the administrative board procedure. The NAVPERSCOM is the separation authority. Send the processed case by letter of transmittal to the NAVPERSCOM. For additional guidance on separation processing by reason of security, refer to the MILPERSMAN. Unsatisfactory Performance in the Ready Reserve This category permits separation of inactive duty members of the Ready Reserve who are serving in the Selected Reserve for unsatisfactory participation in the Selected Reserve. Characterization of service will be honorable, general, or OTH. Use the notification procedure. However, when characterization of OTH is warranted, use the administrative board procedure. Send the processed case by letter of transmittal to the NAVPERSCOM. For additional guidance on separation processing by reason of unsatisfactory performance in the Ready Reserve, refer to the MILPERSMAN. Separation in the Best Interest of the Service Regardless of any limitation on separations set forth in the MILPERSMAN, SECNAV may direct separation of any member at any time. In those cases where no other reason for separation is appropriate, but where separation of a member is considered to be in the best interest of the service, initiate separation processing under this article. Characterization of service will be honorable, general, or ELS. Use the notification procedure. A modification will be made to the notification procedure form eliminating the option to elect 9-16

administrative board procedures. Send the processed case by letter of transmittal to the NAVPERSCOM. For additional guidance on separation processing by reason of best interest of the service, refer to the MILPERSMAN. COUNSELING As you have learned, counseling and rehabilitation efforts are a prerequisite to the initiation of separation processing for the following bases for separation:  Convenience of the government due to parenthood or personality disorder  Weight control failure  Entry level performance and conduct  Unsatisfactory performance  Misconduct due to minor disciplinary infractions or pattern of misconduct Drafting Administrative Discharge Warnings The counseling requirements must be accomplished by the member’s parent command. If more than one entry is made, the last entry applies. Violation of the entry must have occurred before initiating administrative separation processing. In any case that counseling is required, provide the member an opportunity to overcome his or her deficiencies. The command’s efforts to counsel the member should be documented in the member’s service record and must include the following information:  Written notification about deficiencies or impairments  Specific recommendations for corrective action, indicating any assistance that is available to the member  Comprehensive explanation of the consequences of failure to successfully undertake the recommended corrective action  A reasonable period of time for the member to undertake the recommended corrective action A sample format for the counseling warning is illustrated in Figure 9-2. This counseling warning may be a Page 13 entry or a letter. The warning must be dated and signed by the service member. If the member refuses to sign, a notation to that effect should be made in the service record entry and signed and dated by an officer. Include a copy of the counseling warning entry or letter in the administrative separation package. Informing Members of the Meaning and Effect of Discharge Warnings As stated previously, you must inform the member of the meaning and effect of the discharge warning. Inform the member as clearly and precisely as possible of his or her deficiencies and the recommended corrective action. Advise the service member of the consequences of failure to correct the deficiencies and the time period authorized to correct the deficiency. You also must inform the member that if a new UCMJ violation occurs during that period, that in and of itself violates the warning. Ask the member if he or she has any questions about the warning and, if necessary, explain all elements of the warning until the member fully understands everything. 9-17

NOTIFICATION AND ADMINISTRATIVE BOARD PROCEDURES The two types of procedures used to effect administrative separation processing are the notification procedure and the administrative board procedure. You will use one of these procedures in every case of administrative separation that you process. We will address these procedures in further detail.

Figure 9-2 — Sample Letter of Counseling/Warning Format. 9-18

Notification Procedure In each case of administrative separation, a member (hereafter referred to as respondent) must be notified in writing of the basis for separation processing by his or her CO or OIC. The entire notification procedure is an integral part of the separation processing and current procedures must be used. Notice The notice of impending administration separation processing is accomplished by means of a letter from the respondent's CO or OIC. This letter is referred to as a letter of notification. This letter of notification sets forth the specific reasons for processing and the rights of the respondent. The format letter that you will use is contained in MILPERSMAN, Article 1910-402. The original of the letter of notification is kept by the respondent and a copy is included as an enclosure to the transmittal letter requesting separation. The respondent endorses the letter by signing for receipt of it. You should become familiar with the applicable regulations governing letters of notification so you have a clear understanding of a respondent’s rights. Counsel Respondents have the right to consult with counsel qualified under Article 27b, UCMJ, before signing their statement of awareness except under the following circumstances:  When the respondent is attached to a vessel or unit operating away from or deployed outside the United States or away from its overseas home port, or to a shore activity remote from judge advocate resources  When no qualified counsel is assigned and present at the vessel, unit, or activity  When the CO does not anticipate having access to qualified counsel from another vessel, unit, or activity for at least the next 5 days  When the CO determines that the requirements or needs of the naval service require processing before qualified counsel will be available Appoint non-lawyer counsel whenever qualified counsel is not available. Any appointed non-lawyer counsel will be a commissioned officer with no prior involvement in the circumstances leading to the basis of the proposed separation and no involvement in the separation process itself. The respondent may also consult with a civilian counsel at the respondent’s own expense. The respondent’s use of a civilian counsel does not relieve the CO of the requirement to furnish counsel. Consultation with civilian counsel will not delay timely processing. Response The response of the respondent to the letter of notification is referred to as a statement of awareness. The CO will allow a reasonable period of time of not less than 2 working days for the member to respond to the notice. An extension may be granted on a timely showing of good cause by the respondent. The respondent’s election as to each of the rights, via the statement of awareness, is recorded and signed by the respondent and witnessed by respondent’s counsel, if available locally. If the respondent declines to respond to the election of rights, consider it a waiver of rights and proceed with the separation processing. The format letter that you will use is contained in the MILPERSMAN 1910-600. 9-19

Action of the Officer Exercising SPCMCA Officers exercising SPCMCA are delegated authority to separate enlisted personnel with honorable, general, or entry level discharges when the member does not object to separation for the following reasons:  Parenthood  Designated physical or mental conditions (somnambulism, enuresis, personality disorder, and excessive height)  Physical fitness assessment failure  Hardship  Pregnancy or childbirth  Surviving son or daughter  Erroneous enlistment  Fraudulent enlistment  Entry level performance and conduct  Unsatisfactory performance  Drug abuse rehabilitation failure  Alcohol abuse rehabilitation failure In any case that must be initiated under the administrative board procedure vice the notification procedure, an SPCMCA is delegated authority to separate the member when (1) an administrative discharge board recommends separation with a general or honorable characterization, (2) the member does not object to the discharge, and (3) the characterization is consistent with guidelines in the MILPERSMAN. COs with SPCMCA effect the discharge by issuing a letter to the respondent directing the discharge. Figure 9-3 is a sample letter that a CO with SPCMCA may issue a respondent to effect the discharge. Send a copy of this letter along with all pertinent documents to NAVPERSCOM for inclusion in the member’s permanent record. If the CO does not have SPCMCA or the member objects to the separation, the case must be referred to NAVPERSCOM for final determination. This referral is accomplished by either message submission or a standard letter of transmittal. Message Submission Do not send messages for cases in which an administrative board was held or the CO is the separation authority. While message submission hastens the process and is encouraged, COs must use discretion in determining which cases should be submitted via message. Discretion is appropriate in cases wherein the basis for processing is a character trait or physical or mental deficiency that, if it were to become known by the command personnel, could create dissension or further personal embarrassment to the member. Due to the limitations of the message format, commands processing United States Naval Reserve - Reserve (USNR-R) members and members being processed in the best interest of the naval service are not authorized to submit cases via message. Message transmission will be sent by routine precedence in the format provided in the MILPERSMAN, Article 1910-600. Make sure all information required is included. Include your servicing personnel support detachment (PSD) as an information addressee. 9-20

A message submission must be released by either the CO or the acting CO since it is taking the place of a letter of transmittal. File a copy of the released message in the member’s service record.

Figure 9-3 — Sample Letter from CO with SPCMCA Executing Discharge. When you submit an administrative separation case by message, send the supporting documentation required to complete the package within 15 working days after submission of the message. Supporting documentation includes the command's notice of administrative separation processing, the member’s statement of awareness, and other supporting correspondence as required by the specific case. Include a cover memorandum indicating that the documentation supports a message case and include a copy of the message. Make sure the member’s full name, rate, social security number (SSN), and Unit Identification Code (UIC) have been indicated on each page of the case. Letter of Transmittal When a case is not submitted by message, the CO or acting CO must sign a letter of transmittal to NAVPERSCOM submitting the case for final action. Letters of transmittal are required in each case when the CO is the separation authority. The letter of transmittal must indicate the date the member was discharged, and a copy of the DD 214 must be provided. Make sure the member’s full name, rate, and SSN have been indicated on each page of the case. The MILPERSMAN, Article 1910-600, illustrates a sample letter of transmittal. Administrative Board Procedure Use the administrative board procedure to process administration separations in the following circumstances: 9-21

 When a member with 6 or more years of total active and/or Reserve military service being processed under the notification procedure requests a board  When the proposed reasons for separation processing require a board  When the proposed characterization of service is under OTH conditions If a member being processed for administrative separation is entitled to and elects to present his or her case before a board, strict compliance with the MILPERSMAN is required. If the CO or OIC of the member’s command does not have SPCMCA and the member desires a board, the following procedures will be used. The CO or OIC will give the member the letter of notification and the statement of awareness. The next reporting senior with SPCMCA will convene the administrative discharge board. The member’s command will send the case to the NAVPERSCOM via the convening authority (CA), using a standard letter of transmittal. Notice When a respondent is going to appear at an administrative discharge board, the respondent will be notified in writing by the CO or OIC who proposed the action by a letter. This letter is referred to as a notice of an administrative board procedure proposed action and is illustrated in the MILPERSMAN 1910-404. The notice is delivered personally to the respondent and, if required, mailed by certified mail, return receipt requested (for a respondent who is in civil confinement). If the respondent should refuse to acknowledge receipt of the notice, a sworn affidavit of service by mail, as shown in the MILPERSMAN 1910-412, is prepared and placed in the respondent’s service record. If everything goes normally, and the respondent acknowledges the notice, the respondent will sign and submit a statement of awareness. Counsel A respondent has the same right to consult with counsel before electing or waiving any of his or her rights as that prescribed for the notification procedure. If an administrative board is requested, the respondent will be represented by qualified counsel appointed by the CA or by individual counsel of the respondent’s own choice, if that counsel is determined to be reasonably available. The respondent has the right to consult with civilian counsel of his or her own choice and may be represented at the hearing by that or any other civilian counsel, all at the respondent’s own expense. Exercise by the respondent of this right will not waive any of the respondent’s other counsel rights. Consultation with civilian counsel will not unduly delay administrative board procedures. If undue delay appears likely, the CA may direct the board to proceed without the desired civilian counsel after properly documenting the facts. Non-lawyer counsel may represent a respondent before an administrative board if the respondent expressly declines appointment of qualified counsel and requests a specific non-lawyer counsel or the separation authority assigns non-lawyer counsel as assistant c ounsel. Response After a respondent is notified of the pending separation processing, the respondent submits to the CO or OIC a signed and witnessed letter indicating his or her choice of rights as outlined in the letter of notification. The response is referred to as a statement of awareness. 9-22

The CO or OIC will allow a reasonable period of time, not less than 2 working days, for the member to respond to the notice. An extension may be granted upon a timely showing of good cause. The election of the respondent as to each of the specified rights will be recorded and signed by the respondent and respondent’s counsel. If notice by mail is required and the respondent fails to acknowledge receipt or submit a timely reply, that fact will constitute a waiver of rights and an appropriate notation will be recorded on a retained copy of the form. A sample format for the respondent’s statement of awareness is illustrated in the MILPERSMAN 1910-412. ADMINISTRATIVE BOARD As an LN you will see and be a part of an administrative board proceeding at some time in your career. Your contribution to an administrative board may be indirect, such as typing the letter of appointment, or direct, such as a reporter to record verbatim testimony or, as a more senior LN, you acting as the recorder. No matter what your involvement, the existence of administrative boards in the overall scheme of separation processing is a fact of life and you must be aware of their purpose and mission. How a board is composed, the duties of board members, and the conduct of the hearing are important pieces to the overall board processes. As the assigned reporter, you may be asked to record all the proceedings or just the testimony. The next section will allow you to see how the board functions from beginning to end. Convening Authority One of the most important steps a CA must carry out is appointing the board members. An administrative board may, by written order, be appointed by any CO with the authority to convene SPCMs. The CA must make sure the appointment prevents the appearance of any impropriety in the assignment of any board members who may have a preconceived opinion about the findings or recommendations, or both, to be made on the respondent’s case. The CA must appoint at least three commissioned, warrant, or noncommissioned officers well- qualified by reason of grade, leadership, experience, and judicial temperament. Enlisted personnel appointed to the board will be in paygrade E-7 or above and will be senior to the respondent. Enlisted personnel frocked to paygrade E-7 are not eligible for appointment. At least one member of the board will be a line officer serving in grade O-4 or higher. If the respondent is on active duty when the board convenes, the senior member must be on the active duty list of the service in which the respondent serves. When the respondent is a reservist or holds an appointment as a Reserve commissioned or warrant officer, at least one member must be a Reserve commissioned officer. To avoid split decisions, the CA should not appoint an even number of members to an administrative board. If, during the session, one of the members is successfully challenged, the CA should appoint a similarly qualified substitute. Also, with respect to board challenges, if the board has no legal advisor assigned, the CA must rule on all challenges. Appointing Order The CA must issue an appointing order for the administrative board. The order is addressed to the senior member and its purpose is to inform the senior member of the names of the other members, the name of the respondent, and the reason for processing. The recorder is named in the order as well as the lawyer assigned to the respondent. A sample appointing order is shown in Figure 9-4. 9-23

President of the Board The president of an administrative board must make sure he or she and all the members are familiar with the MILPERSMAN articles pertaining to the separation for which the respondent is being processed. During the proceedings, the president presides at the hearing and is responsible for its proper conduct in an atmosphere of decorum and dignity. If there is no legal advisor assigned to the board, the president will rule on all matters of procedure and evidence. However, his or her rulings may be overturned by a majority of the board.

Figure 9-4 — Sample Appointing Letter of Administrative Board. 9-24

When no legal advisor is assigned, the president advises the CA, after consulting with a judge advocate, to spend funds for producing witnesses when the president has decided that the witnesses are material. The senior member authenticates the record of proceedings and signs the report of the administrative board. Legal Advisor At the discretion of the CA, a non-voting legal advisor who is a judge advocate certified according to Article 27(b), UCMJ , may be appointed to the administrative board. If appointed, the legal advisor will rule finally on all matters of procedure, evidence, and challenges, except challenges to himself or herself. A legal advisor will not be junior to, and in the same chain of command as, any voting member of the board. Recorder The CA will further detail an officer on active duty (if the respondent is on active duty) as recorder. The importance of the recorder cannot be overlooked. The following are the duties of the recorder before, and after the board adjourns:  Performing the clerical and preliminary work of the hearing  Conducting a preliminary review of available evidence and, before the hearing, interviewing prospective witnesses  Assembling pertinent directives, regulations, and records for use by the board  Informing the respondent, legal advisor, essential witnesses, and counsel on the time, date, and place of the hearing  Presenting the case against the respondent  Preparing the record of proceedings Reporter There is no requirement that a reporter be appointed. Where witnesses are expected to testify, however, the presence of a reporter is desirable to record the witnesses’ statements verbatim. Witness Requests The respondent may request the attendance of witnesses in his or her behalf at the hearing. The respondent’s request will be in writing, dated, signed by the respondent or his or her counsel, and submitted to the CA, via the president of the board, for his or her decision. If production of a witness will require expenditure of funds by the CA, the written request will also contain the following:  A synopsis of the testimony the witness is expected to give  An explanation of the relevance of such testimony to the issue of separation or characterization  An explanation as to why written or recorded testimony would not be sufficient The CA may authorize expenditure of funds for production of witnesses. If the CA determines that the personal testimony of a witness is required, the hearing will be postponed or continued, if necessary, to permit the attendance of the witness. 9-25

Military witnesses will be issued Temporary Additional Duty (TAD) orders, and civilian witnesses will be issued invitational travel orders. Guidance for funding the travel of required witnesses is found in the Manual of the Judge Advocate General (JAGMAN). Hearing Procedure While board proceedings are not a judicial trial, they are formalized to the extent of assuring full opportunity for presentation of the respondent’s case. If objections are made at any stage, the president of the board, or legal advisor, will make a formal ruling on the objection and make sure both the objection and basis of the objection are noted in the record. Any member of the board or legal advisor may be challenged only on grounds that show that the member cannot render a fair and impartial decision. The president of the board, upon calling the board to order, directs the recorder to make a record as to the time, date, and place of the hearing. The recorder also records the identity and presence of the appointed members, the recorder, the respondent and respondent’s counsel, and the qualifications of the counsel. Preliminaries At the outset of the hearing, the president of the board inquires of the respondent about his or her knowledge of his or her rights, including the following:  To appear in person, with or without counsel, or, in his or her absence, to have counsel represent him or her at all open board proceedings  To challenge any voting member of the board, for cause only  To request the personal appearance of witnesses at the administrative board  To submit, either before the board convenes or during the proceedings, sworn or unsworn statements, depositions, affidavits, certificates, or stipulations, including depositions of witnesses not reasonably available or unwilling to appear voluntarily  To testify, in his or her own behalf, under oath and submit to cross-examination or, in the alternative, to make or submit an unsworn statement and not be cross-examined  To question any witnesses who appear before the board  To examine all documents, reports, statements, and evidence available to the board  To be informed of, and to interview, all witnesses to be called  To have witnesses excluded except while testifying  To make argument

The president explains the purpose of the board and that the proceedings are administrative in nature. The board is neither a formal fact-finding tribunal nor a judicial trial; however, this does not prevent the board from being conducted in a formal atmosphere. When the president is finished with the preliminaries, he or she turns the proceedings over to the recorder. NOTE A failure on the part of the respondent to exercise any of these rights, after being advised of them, will not bar the board’s proceedings. 9-26

Rules of Evidence An administrative board functions as an administrative rather than a judicial body. Consequently, the strict rules of evidence applicable at courts-martial do not apply. Other than Article 31, UCMJ limitations, the board should consider any competent evidence that is relevant and material to the case. The respondent must be provided a Privacy Act statement whenever personal information is solicited. Make sure the respondent signs the Privacy Act statement (Figure. 9-5) and that a copy is retained in the case file. Presentation of Evidence The recorder presents the case for the government, providing the board with complete and impartial information. Next, the respondent has the opportunity to present matters in his or her behalf. Following any matter presented by the respondent, the recorder may, when he or she deems it appropriate, present rebuttal evidence. When the recorder introduces rebuttal evidence, the respondent is entitled to do likewise. Finally, before closing for deliberation, the board may call any witness or hear other evidence it deems appropriate. Witnesses are not present during open sessions except when testifying. After all evidence is in and questioning and oral arguments are complete, the hearing closes with only the voting members present. Burden of Proof The burden of proof before administrative boards is on the government, and the standard of proof to be employed is the “preponderance of evidence” test. Board Decisions The board deliberates and votes on its findings and recommendations in closed session. Only voting members of the board are present during deliberations and voting. The board determines whether each allegation set forth in the notice of proposed separation is supported by a preponderance of the evidence. The board determines the specific reason(s) for separation and whether the findings warrant separation with respect to the reason(s) set forth in the notice. Also, if the respondent is being processed for more than one reason, there must be a separate determination for each reason. The board must make a recommendation as to retention or separation and suspension of the separation. The board states the following in open proceedings and on the record:  The specific evidence it considered relating to each act, omission, or circumstance alleged in the notice  Its determination for each alleged act, omission, or circumstance that the preponderance of evidence does or does not support that act, omission, or circumstance  The specific reason(s) for separation set forth in the notice of proposed separation that each act, omission, or circumstance applies The report of the administrative board should be completed immediately upon concluding the board in the format provided in the MILPERSMAN 1910-516. 9-27

Figure 9-5.—Privacy Act Statement of Respondent. Record of Proceedings A record of proceedings is a summary of the facts and circumstances, accompanied by supporting documents, on which the recommendation of the administrative board is based, including a summary of the testimony of all witnesses heard at the board. In addition, it must contain the following:  The identity of the members of the board  The identity of the legal advisor, if assigned, and his or her qualifications  The identity of the respondent’s counsel and his or her qualifications  The identity of the recorder  A verbatim record of the board’s findings and recommendation(s) The findings and recommendations of the board must be verbatim, and the entire record must be authenticated by the president of the board, or another member if the president is not available. The respondent’s counsel must be furnished with a copy of the record of proceeding. The counsel will indicate that he or she has examined the summary of the testimony heard and has examined all supporting documents in the record. If counsel is not in agreement, the counsel may send a statement of deficiencies to the CA for inclusion in the report of the administrative board. A sample format of the record of proceedings of an administrative board is contained in the MILPERSMAN 1910-516. Action by the Convening Authority If the CA determines that the respondent should be retained, the case may be closed. However, any case in which processing is mandatory according to the MILPERSMAN, the matter must be referred to NAVPERSCOM for disposition. 9-28

If the CA decides that separation is warranted or separation processing is mandatory, the case is sent directly to NAVPERSCOM for action. Any discharge recommendation must be signed by the CO personally; no by direction signature is authorized. The CA will make and send to NAVPERSCOM a recommendation with respect to (1) the specific reason(s) for separation, (2) the final action of retention, separation, or suspension of separation, (3) the characterization of service for those eligible for transfer to Fleet Reserve or Retired List, and (4) the paygrade in which the member should be transferred. The CA should not make a less favorable discharge characterization recommendation than what was made by the board. Once all these requirements are met, the proceedings and all documents attached are sent by the CA via a letter of transmittal, as shown in the MILPERSMAN 1910-600. Processing Goals To make sure efficient administration of enlisted separations is maintained, SECNAV has established processing time goals. The following are the established processing goals for administrative separation cases:  By the date of expiration of current enlistment or fulfillment of service obligation for separations.  A total of 15 working days from the date a command notifies a member of the commencement of a separation proceeding to the date of separation when the notification procedure is used and the CO has authority to effect the separation. Commands will send the case by letter of transmittal to NAVPERSCOM indicating the date of separation.  A total of 30 working days from the date a command notifies a member of the commencement of a separation proceeding to the date of separation, when the notification procedure or administrative board procedure (no board convened) is used and the case is sent to NAVPERSCOM for final action. Commands should send the letter of transmittal or message request within 10 days from the date the member is notified.  A total of 50 working days from the date a command notifies a member of the commencement of a separation proceeding to the date of separation when an administrative board is convened.  An administrative board is convened. Commands should send the processed case to NAVPERSCOM within 30 working days from the date the member is notified.  A total of 55 working days from the date a command notifies a member of the commencement of a separation processing to the date of separation when final action on the case is required by SECNAV. Commands should send the letter of transmittal or message within 10 working days from the date the member is notified or submit a letter of transmittal within 30 working days from the date the member is notified and an administrative board has recommended retention, or the offense(s) being considered are evidenced by a SPCM or a GCM conviction that did not award a punitive discharge. Action by the Separation Authority Upon receipt of the administrative board proceedings, the Chief of Naval Personnel, as the separation authority, takes action regarding the recommended discharge and recommended characterization of service. The MILPERSMAN outlines all the possible choices of action that are available to the Chief of Naval Personnel. 9-29

If the NAVPERSCOM approves the board’s findings and recommendations, in whole or in part, with respect to more than one reason for separation, he or she will designate the most appropriate basis as the primary reason for reporting purposes. The Naval Discharge Review Board and the Board for Correction of Naval Records The purpose, jurisdiction, and scope of the NDRB and the BCNR will be explained during the separation processing of any member being discharged under OTH conditions, including members authorized to proceed home in a leave status to await final action on a punitive discharge. An entry will be made on the Page 13, of the service record, and signed by the member, to signify compliance. The NDRB was established pursuant to the Servicemen’s Readjustment Act of 1944 to review, as provided in 10 U.S.C.1553, upon the petition of whether under reasonable standards of naval administration and discipline, the type and nature of the discharge should be changed, corrected, or modified; and if so, to decide what change, correction, or modification should be made. The NDRB has no authority to revoke any discharge; reinstate any person in the military service or recall any person to active duty; waive discharges to permit enlistment in the naval service; cancel enlistment contracts, change, correct, or modify any document other than the discharge document; change the reason for discharge from or to physical disability; or determine eligibility for veterans’ benefits. The BCNR was established under the Legislative Reorganization Act of 1946 to relieve the Congress of the burden of considering private bills for the correction of naval records. When a no-change decision has been rendered by the NDRB, a petition may then be filed with the BCNR within 3 years of the date of discovery of the error or injustice. In connection with review of executed discharges by both the NDRB and the BCNR, there is no law or regulation that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Applications for review should be submitted on the Application for Correction of Military Records, DD Form 149, in the case of BCNR, and the Application for the Review of Discharge or Dismissal from the Armed Services, DD Form 293, in the case of NDRB. These forms may be obtained by writing to the Board for Correction of Naval Records, Washington, DC 20370 or the Naval Discharge Review Board, Suite 905, 81 N. Randolph Street, Arlington, Virginia 22203. SUMMARY As an LN you cannot take lightly the serious nature of administrative separations. Although you may not encounter administrative separation processing on a daily basis, you should appreciate the detail that goes into the overall process. For example, as you saw during the Administrative Board section, if the CA is not careful when selecting board members, the CA could jeopardize the entire case. Your familiarization with applicable regulations regarding specific administrative separation cases will enhance both your job performance and the Navy’s as well. A case that is processed properly makes for a smooth transition of events from the command to NAVPERSCOM. 9-30

CHAPTER 10 DELIVERY OF PERSONNEL Whether you are assigned to a Staff Judge Advocate's Office or to a Naval Legal Service Command (NLSC), you will probably become involved with the preparation of various documents associated with the delivery of personnel and waiver of extradition. This chapter provides you with background information associated with the delivery of personnel, waivers of extradition, and service of process and subpoenas. LEARNING OBJECTIVES Upon completing this chapter, you should be able to do the following: 1. Describe the circumstances in which a request for delivery of personnel may be issued. 2. Describe the procedures for delivery of personnel. 3. Familiarize yourself with the forms required in the delivery of personnel. DELIVERY There are varying circumstances you must consider when you receive a request for delivery of a member. Questions can arise on matters of jurisdiction, extradition, and agreements that must be executed. The following discussion of these circumstances is provided to give you an understanding of the factors involved. (Check with local area to see if there is liaison for coordination.) Persons Requested by State Authorities in Criminal Cases (JAGMAN 0603) The first part of this chapter deals with requests by state authorities for the surrender of service members or civilians according to arrest warrants or similar process. These requests are commonly done in connection with a criminal prosecution. Responding to such requests by a state for delivery of service members or civilian employees involves balancing the federal interests in preserving sovereign immunity and the productivity, peace, good order, and discipline of the installation against the right of the state to exercise its jurisdiction. Additionally, by regulation, Navy and Marine Corps authorities are limited in the extent to which they can directly assist such an act. Commands should respond to such requests by using the minimum authority necessary to preserve federal interests without unduly restricting state jurisdiction. Within Territorial Limits of Requesting State (JAGMAN 0604) When the delivery of any person in the Navy or Marine Corps is requested by local and state civil authorities of a state, territory, or commonwealth for an alleged offense punishable under the laws of that jurisdiction, and such person is located at a Navy or Marine Corps installation within the requesting jurisdiction, or aboard a ship within the territorial waters of such jurisdiction, commanding officers (COs) are authorized to and normally will deliver such person when a proper warrant is issued. In the case of a service member, delivery can only be carried out after compliance with the Manual of the Judge Advocate General (JAGMAN), subject to the exceptions noted in the JAGMAN. You should consult a judge advocate of the Navy or Marine Corps before delivery is carried out if a judge advocate is reasonably available. The previous rule applies equally to civilian employees and civilian contractors and their employees when located on a Navy or Marine Corps installation. Commands should normally not become actively involved in civilian law enforcement. When a command has determined that a person is to be delivered in response to a valid warrant, you should consider the following guidance. If the person to 10-1

be delivered is a military member, the member may be ordered to report to the location designated by the CO and surrender to civil authorities under Article 14, Uniform Code of Military Justice (UCMJ). If the person to be delivered is a civilian, the person may be invited to report to the designated space for delivery. If the civilian refuses, the civilian authorities may be escorted to a place where the civilian is located so delivery may be performed. A civilian who works in a classified area can be directed to leave his or her immediate work area to avoid any compromise of classified material. When it is required to have civilian law enforcement personnel go to the work center of an individual, it should be done with minimum interference to good order and discipline. Beyond Territorial Limits of Requesting State (JAGMAN 0605) When the delivery of any person in the Navy or Marine Corps is requested by state, territory, or commonwealth civil authorities for an alleged crime or offense punishable by the laws of the jurisdiction making the request, and the person is not attached to a Navy or Marine Corps activity within the requesting state, territory, or commonwealth, or a ship within the territorial waters thereof, take the following action: Deliver the person for the purpose of making that person amenable to prosecution. The delivery must be approved by any officer exercising general court-martial jurisdiction (OEGCMJ), or by an officer designated by him or her, or by any CO. The OEGCMJ or CO must consult with a judge advocate of the Navy or Marine Corps before authorizing delivery. Before delivery, the OEGCMJ or CO must follow the provisions of the JAGMAN, subject to any exceptions that are discussed later in this chapter. The member may be delivered upon formal or informal waiver of extradition, or upon presentation of a fugitive warrant. Both of these procedures are discussed below.

The previous rule applies equally to civilian employees when located on a Department of the Navy (DON) installation not within the requesting state. Waiver of Extradition Any person may waive formal extradition. A waiver must be in writing and witnessed. The waiver must include a statement that the person signing it has received counsel of either a military or civilian attorney before executing the waiver. The waiver must further state the name and address of the attorney consulted. The form used for the waiver should be substantially as shown in Figure 10-1. Mail all executed copies of the waiver to the Judge Advocate General (JAG) immediately after their execution. For every case in which there is doubt about the voluntary nature of a waiver, such doubt is resolved against its use. All persons concerned must be advised to comply with the procedures set forth for fugitive warrants. When an individual declines to waive extradition, you need to inform the nearest Region Legal Service Office (RLSO) or Marine Corps staff judge advocate (SJA) since further representations to the civil authorities may be needed. Do not allow the transfer of the individual concerned out of the state in which he or she is then located without the permission of the Secretary of the Navy (Judge Advocate General), unless you have obtained a fugitive warrant. Fugitive Warrants A fugitive warrant, as defined in this chapter, is a warrant issued by a state court of competent jurisdiction for the arrest of an individual. Normally, a state requesting delivery of a member from another state will issue a fugitive warrant to the state where the member is then located. Upon issuance of a fugitive warrant by the requesting state to the state where the member is located, the latter state will normally request delivery of the member to local state authorities. Authorized Navy 10-2

or Marine Corps officers should arrange delivery to local state officials, subject to the conditions set forth in the JAGMAN and the following discussion. Upon receipt of a request for delivery of a member under fugitive warrant to state authorities, if the member voluntarily waives extradition, the provisions for the waiver of extradition apply. If the member is delivered to local authorities but refuses to waive extradition, he or she will have the opportunity to contest extradition in the courts of the state in which he or she is then located. No delivery of a member by Navy or Marine Corps officers pursuant to a fugitive warrant or waiver of extradition can be done without the completion and execution of the delivery agreement required by the JAGMAN. The agreement is executed when (1) the authorities of both the requesting state and the state in which the member is located have signed it or (2) the authorities of the state in which the member is located have signed the agreement. This provision applies only if such authorities, on behalf of the requesting state, accept full responsibility for returning the member to a command designated by the DON. Personnel Stationed Outside The United States (JAGMAN 0606) Persons desired by local U.S. authorities. When delivery of any member of the Navy or Marine Corps, or any civilian employee or dependent, is desired for trial by state, territory, commonwealth, or local civil authorities, and the individual whose presence is sought is stationed outside the United States, follow the provision of Department of Defense (DOD) Directive 5525.9(series), Compliance of DOD Members, Employees, and Family Members Outside the United States with Court Orders, as implemented in SECNAVINST 5820.9(series). In all such cases, you should consult with the nearest judge advocate of the Navy or Marine Corps before any action is taken. Members desired by U.S. federal authorities. When the delivery of any member of the Navy or Marine Corps is desired for trial in federal district court, upon proper representation by the Department of Justice to the SECNAV via the JAG, return the member to the United States. This transfer is at the expense of the DON. The member will be held at a military facility convenient to the DON and to the Department of Justice. Delivery may be done as set forth in JAGMAN, Section 0608, subject to the exceptions in JAGMAN, Section 0610. 10-3

Figure 10-1 — Waiver of Extradition. 10-4

DELIVERY AGREEMENTS For each case in which a member is to be delivered to civil authorities for trial, you need to be familiar with the procedures involved in delivering that person to state, federal, or foreign authorities. You also need to be familiar with the circumstances under which delivery may be refused. Let us now look at these procedures in more detail. Delivery to State Authorities (JAGMAN 0607) When delivery of any member of the Navy or Marine Corps to the civilian authorities of a state is authorized, the member’s CO, before making delivery, must obtain from the governor or other authorized officer of the state a written agreement that conforms to the agreement shown in Figure 10-2. The state official completing the agreement must show that he or she is authorized to bind the state to the terms of the agreement. When indicating in the agreement the Navy or Marine Corps activity to which the member delivered is to be returned by the state, be careful to designate the closest activity (to the command that the member is attached) that has special court-martial jurisdiction. The DON considers this agreement complied with when (1) the member is furnished transportation by the state (under escort in case of delivery under JAGMAN, Section 0613) to a Navy or Marine Corps activity, as stated in the agreement; (2) the state provides member cash to cover incidental expenses en route; and (3) the DON is so informed. Any departure from the agreement must have prior approval from Office of the Judge Advocate General (OJAG) (Code 14). A copy of the delivery agreement is to be provided to OJAG (code 14) as soon as possible. When personnel are delivered under the Interstate Agreement on Detainers Act, special forms that are not contained in the JAGMAN are used. The Detainers Act is infrequently used and requests for delivery are pursuant to Article 14, UCMJ. Delivery of Personnel to Federal Authorities (JAGMAN 0608) When federal law enforcement authorities display proper credentials and federal warrants for the arrest of service members, civilian employees, civilian contractors and their employees, or dependents residing at or located on a DON installation, COs are authorized to and should allow the arrest of the individual sought. The exceptions in the JAGMAN may be applied to service members. You should consult with a judge advocate of the Navy or Marine Corps before the delivery is carried out. The agreement shown in Figure 10-2 is not a condition precedent to the delivery of service members to federal law enforcement authorities. Regardless of whether the member is convicted or acquitted, the member will be returned to the naval service (provided naval authorities desire his or her return) and the necessary expenses will be paid from an appropriation under the control of the Department of Justice. Delivery of Personnel to Foreign Authorities (JAGMAN 0609) Except when delivery is provided for by agreement between the United States and the foreign government concerned, i.e., Status of Forces Agreement (SOFA), COs are not authorized to deliver service members or civilian employees of the DON, or their dependents residing at or located on a Navy or Marine Corps installation, to foreign authorities. When a request for delivery of these persons is received in a country that the United States has no agreement with or when the CO is in doubt, advice should be sought from OJAG (Code 14). Detailed information on the delivery of service members, civilian employees, and dependents to foreign authorities when a SOFA is in effect is contained in SECNAVINST 5820.09(series). In addition, units that are deployed overseas should 10-5

check their Deployment Manual for specific guidance on delivery of personnel in the areas that the deployed unit will be visiting. Circumstances in Which Delivery is Refused (JAGMAN 0610) There are situations in which delivery of personnel may be refused or that require specific approval by higher authorities before delivery may be completed. Some of these situations and the procedures to follow when delivery is refused are discussed as follows: Disciplinary Proceedings Pending When disciplinary proceedings involving military offenses are pending, obtain legal guidance from a judge advocate of the Navy or Marine Corps before delivery of personnel to federal, state, territory, commonwealth, or local authorities if reasonably practical. When Delivery May Be Refused Delivery may be refused only in the following limited circumstances:  When the accused has been retained for prosecution for serious military offenses as defined in the JAGMAN  When the CO considers that extraordinary circumstances exist that indicate delivery should be refused Report Required When Delivery is Refused For any case in which it is intended that delivery will be refused, you must report the circumstances to OJAG (Code 14) by telephone or by message if telephone is impractical. The initial report is confirmed by letter setting forth a full statement of the facts. The letter should be as shown in Figure 10-3. You also must send a copy of the report to the area coordinator. 10-6

Figure 10-2 — Delivery Agreement. 10-7

MEMBERS RELEASED ON BAIL OR ON THEIR OWN RECOGNIZANCE (JAGMAN 0611) A member of the Navy or Marine Corps arrested by federal, state, or territory authorities and released on bail or on his or her own recognizance has a duty to return to his or her parent command. Accordingly, when a member of the Navy or Marine Corps is arrested by federal, state, or territory authorities and returns to his or her ship or station on bail or on his or her own recognizance, the CO after checking the facts, date of trial, and approximate length of time needed should grant liberty or leave to permit appearance for trial, unless this would have a serious negative impact on the command. If liberty or leave is not granted, a judge advocate of the Navy or Marine Corps should immediately be requested to coordinate with the court. Nothing in this chapter is to be construed as permitting the member arrested and released to avoid the obligations of bond or of his or her recognizance by reason of his or her being in the military service. REQUESTS TO INTERVIEW SERVICE MEMBERS OR CIVILIAN EMPLOYEES BY FEDERAL CIVILIAN INVESTIGATIVE AGENCIES (JAGMAN 0612) Requests by the Federal Bureau of Investigation, Naval Criminal Investigative Service, or other federal civilian investigative agencies to interview service members or civilian employees of the DON suspected or accused of crimes should be promptly honored. If there is any refusal of such a request, you must immediately report it to OJAG (Code 14), or the Office of General Counsel, as appropriate, by telephone, or by message if telephone is impractical. REQUEST FOR DELIVERY OF A SERVICE MEMBER SERVING SENTENCE OF A COURT-MARTIAL (JAGMAN 0613) Authority to honor the requests for delivery of military personnel serving a sentence of court-martial is provided by Article 14, UCMJ (10 U.S.C. § 814). Although seldom used, additional authority and mandatory obligation to deliver such personnel are provided by the Interstate Agreement on Detainers Act (18 U.S.C. Appendix 9), which applies to the federal agency holding the prisoner. The DON, as an agency of the federal government, must comply with the Detainers Act. The Detainers Act is designed to avoid speedy trial issues and to aid in rehabilitation efforts by securing a greater degree of certainty about a prisoner’s future. The act provides a way for the prisoner to be tried on charges pending before state courts, either at the prisoner’s request or at the request of the state where the charges are pending. A report is required when delivery is refused. Upon request under the Interstate Agreement on Detainers Act by either the prisoner or state authorities, the responsible Navy or Marine Corps SJA will communicate with the appropriate state officials and make sure the cognizant commanders act on all such requests. 10-8

Figure 10-3 — Letter Required when Delivery is Refused. 10-9

State Requests State officials may request delivery of prisoners in military custody under Section 2, Article IV, of the Interstate Agreement on Detainers Act. When a detainer has been lodged against the prisoner and the prisoner is serving a sentence (regardless of whether an appeal is in process), delivery is mandatory unless the request is disapproved by the Director of the Bureau of Prisons, Washington, DC 20537, as the designee of the Attorney General for this purpose. There is no further delegation to military authority. Prisoner Requests The obligation to grant temporary custody under the Interstate Agreement on Detainers Act also applies to prisoners’ requests to be delivered to state authority. Section 2, Article III(c), of the Detainers Act requires the custodial official to inform the prisoner of the existence of any detainer and of the prisoner’s right to request disposition. The prisoner’s request is directed to the custodial official, who must send it to the appropriate prosecuting official and court, with a certificate of prisoner status. Article 14, UCMJ When a request for custody does not invoke the Interstate Agreement on Detainers Act, delivery of custody is governed by Article 14, UCMJ, and JAGMAN, Sections 0603 through 0610. The request will be honored unless, in the exercise of discretion, there is an overriding reason for retaining the accused in military custody; for example, additional courts-martial are to be convened or the delivery would severely prejudice the prisoner’s appellate rights. Execution of the agreement discussed previously is a condition precedent to delivery to state authorities. It is not required before delivery to federal authorities. Unlike delivery under the Detainers Act, d elivery of custody pursuant to Article 14, UCMJ, interrupts execution of the court-martial sentence. The form shown in Figure 10-3, with proper modification, should be used in reporting refusal of delivery of prisoners. REQUEST FOR DELIVERY OF PERSONNEL SERVING SENTENCE OF A STATE COURT (JAGMAN 0614) Ordinarily, personnel serving protracted sentences resulting from a state criminal conviction will be processed for administrative separation by reason of misconduct (MILPERSMAN 1910). It may, however, be in the best interest of the naval service to retain a member, charged with a serious offense subject to military jurisdiction, to try the member by court-martial. The vehicle available for obtaining temporary custody of incarcerated personnel for prosecution is a request to the state under the Interstate Agreement on Detainers Act. Military authorities may use the Interstate Agreement on Detainers Act to obtain temporary custody of a member incarcerated in a state institution, pursuant to conviction by a state court and to resolve criminal charges against the member that are cognizable before a court-martial. Detainer If a command chooses to use the Detainers Act, the CO of the responsible RLSO must file a detainer with the warden, commissioner of corrections, or other state official having custody of the member. The detainer must identify the member with exactness, listing the military charges pending against the member, and requesting the command be notified in advance of any intention to release the member from confinement. 10-10

Request for Delivery As soon as possible after filing the detainer, the CO of the cognizant RLSO must prepare a written request for temporary custody of the incarcerated member addressed to the state official charged with administration of the state penal system. The request must designate the person(s) to whom the member is to be delivered and must be sent via the military judge to whom the member’s case has been assigned. If the request is properly prepared, the military judge will approve, record, and send the request to the addressee official. The Detainers Act provides the state with a 30-day period after receipt of the request before the request is to be honored. Within that period of time, the governor of the state may disapprove the request, either on his or her own motion or upon the prisoner’s request. If the governor disapproves the request, the requesting command should coordinate any further action with the OJAG (Code 14). Responsibilities The responsible command must make sure the responsibilities of a receiving jurisdiction, shown in Section 2, Article IV, of the Detainers Act, are discharged. In particular, the Detainers Act requires that the receiving state do the following:  Begins the prisoner’s trial within 120 days of the prisoner’s arrival, unless the court for good cause shown during an Article 39(a) session grants a continuance that is necessary or reasonable to promote the ends of justice.  Holds the prisoner in a suitable jail or other facility regularly used for persons awaiting prosecution, except for the period during which the prisoner attends court or travels to or from any place that his or her presence may be required.  Returns the prisoner to the state at the earliest practical time, but not before the charges that underlie the request have been resolved (premature returning of the prisoner will result in the dismissal of the charges).  Pays all costs of transporting, caring for, keeping, and returning the prisoner to the state, unless the command and the state should otherwise agree on some other allocation of the costs or responsibilities. SERVICE OF PROCESS AND SUBPOENAS UPON PERSONNEL (JAGMAN 0616) Afloat and ashore COs may permit service of process of federal or state courts upon service members, civilian employees, dependents, or contractors residing at or located on a naval installation, if located within their commands. Service is not to be made within the command without the CO’s consent. The intent of this provision is to protect against interference with mission accomplishment and to preserve good order and discipline, while not unnecessarily impeding the court’s work. Service of Process Service of process is generally defined as establishing the court’s jurisdiction over a person by the handing of a court order to a person advising him or her of the subject of the litigation and ordering this person to appear or answer the plaintiff’s allegations within a specified period or else be in default. When properly served, the process will make this person subject to the jurisdiction of a civil court. 10-11

Overseas A service member’s amenability to service of process issued by a foreign court depends on international agreements (such as the North Atlantic Treaty Organization Status of Forces Agreement [NATO SOFA]). Where there is no agreement, guidance should be sought from a local judge advocate or OJAG. Within the United States Within the Jurisdiction. Where the member is within the jurisdiction of the court issuing the process, the CO will permit the service, except in unusual cases in which he or she concludes that compliance with the mandate of the process would seriously prejudice the public interest. Personnel serving on a vessel within the territorial waters of a state are considered within the jurisdiction of that state for the purpose of service of process. Process should not be allowed within the confines of the command until permission of the CO first has been obtained. Where practical, the CO should require that process be served in his or her presence or in the presence of an officer designated by the CO. COs are required to make sure the nature of the process is explained to the member. This explanation can be given by a legal assistance officer. Beyond the Jurisdiction. Where the member is beyond the jurisdiction of the court issuing the process, COs should permit the service under the same conditions as within the jurisdiction, but need to make sure the member is advised that he or she need not indicate acceptance of service. Furthermore, in most cases, the CO should advise the person concerned to seek legal counsel. When a CO has been forwarded process with the request that it be delivered to a person within the command, it may be delivered if the service member voluntarily agrees to accept it. When the service member does not voluntarily accept the service, it should be returned with a notation that the named person has refused to accept it. Arising from Official Duties. Whenever a service member or civilian employee is served with federal or state court civil or criminal process arising from activities performed in the course of official duties, the CO should be notified and provided copies of the process and pleadings. After the pertinent facts are learned, notify JAG (Code 14) immediately by telephone, and send the pleadings and process to the office. A military member may remove civil or criminal prosecutions from state to federal court when the action is done under color of office or when authority is claimed under a law of the United States respecting the Armed Forces. The purpose of this action is to assure a federal forum for cases when service members must raise defense arising out of their official duties. If a federal employee is sued in his or her individual capacity, that employee may be represented by Justice Department attorneys in state criminal proceedings and in civil and congressional proceedings. When an employee believes he or she is entitled to representation, a request— together with pleadings and process—must be submitted to OJAG (Code 14) via the individual’s CO. The CO will endorse the request and submit all pertinent data as to whether the employee was acting within the scope of employment at the time of the incident out of which the suit arose. If the Justice Department determines that the employee’s actions reasonably appear to have been performed within the scope of employment and that representation is in the interest of the United States, representation will be provided. Service Not Allowed For any case in which the CO refuses to allow service or process, a report is made to OJAG (Code 14) as expeditiously as the circumstances allow or warrant. 10-12

Leave/Liberty For those cases in which personnel either are served with process or voluntarily accept service of process, leave or liberty should be granted to comply with the process, unless it will prejudice the best interests of the naval service. Subpoenas A subpoena is a court order requiring a person to testify in either a civil or criminal case as a witness. The same considerations exist in this instance as apply in the case of service of process, except for special rules where testimony is required on behalf of the United States in criminal and civil actions, or where the witness is a prisoner. Witness on Behalf of the Federal Government Where DON interests are involved and departmental personnel are required to testify for the Navy, the CHNAVPERS or Commandant, Marine Corps directs the witness’ activity to issue Temporary Additional Duty (TAD ) orders. Costs of such orders are the responsibility of that same command. If DON interests are not involved, the Navy is reimbursed by the concerned federal agency. Witness on Behalf of Accused in Federal Court When naval personnel are served with a subpoena and the appropriate fees and mileage are tendered, issue no-cost permissive orders unless the public interest would be seriously prejudiced by the member’s absence from the command. Witness on Behalf of Party to Civil Action or State Criminal Action with No Federal Government Interest The CO normally grants leave or liberty to the person, provided such absence will not prejudice the best interests of the naval service. If the member is being called as a witness for a nongovernmental party only because of performance of official duties, the CO is authorized to issue the member permissive orders at no expense to the government. Witness Is a Prisoner Criminal cases. OJAG (Code 14) must be contacted for permission that normally will be granted. Failure to produce the prisoner as a witness may result in a court order requiring such production. Civil action. The member cannot be released to appear regardless of whether a federal or state court makes the request. A deposition may be taken at the place of confinement, subject to reasonable conditions and limitations imposed by the prisoner’s command. Pretrial Interviews Concerning Matters Arising Out of Official Duties Send requests for interviews and/or statements by parties to private litigation to the CO/OIC of the cognizant RLSO or Marine Corps SJA. These interviews are conducted in the presence of an officer designated by the CO/OIC of the RLSO or Marine Corps SJA who assures that no line of inquiry is permitted that may disclose or compromise classified information or otherwise prejudice the security interests of the United States. Release of Official Information for Litigation Purposes and Testimony by Department of the Navy Personnel SECNAVINST 5820.8(series) provides that DON personnel will not provide official information, testimony, or documents; submit to interviews; or permit a view or visit for use in federal courts, state courts, foreign courts, and other governmental proceedings without proper authorization. Additionally, DON personnel will not provide, with or without compensation, opinion or expert testimony concerning 10-13

DOD information, subjects, personnel, or activities—except on behalf of the United States or a party represented by the Department of Justice or with written special authorization. The previous instruction outlines determining authorities, the required contents of a proper request by a requester, and consideration in granting or denying a request for official information. JURY DUTY (IAW 10 U.S.C. § 982) Active duty service members are exempted from service on federal juries. Service members are exempt from jury duty when it unreasonably interferes with the performance of their military duties or adversely affects the readiness of a unit, command, or activity. It is the responsibility of COs to make the decision and the decision is final. All personnel assigned to the Operating Forces, in a training status, or stationed outside the United States are exempt from serving on a state or local jury. Service members who serve on state and local juries will not be charged leave or lose any pay entitlements during the period of service. All fees accrued to members for jury service are payable to the U.S. Treasury. Members are entitled to any reimbursement from the state or local jury authority for expenses incurred in the performance of jury duty (such as for transportation and parking fees). COs are responsible for notifying the responsible state or local official of this exemption when a service member is summoned. SUMMARY As you can readily see, there are many variables involved in processing and preparing documents for the delivery of military personnel to civil authorities when a request has been received from state, federal, territory, or commonwealth authorities. Additionally, you can see where you will be required to be familiar with the procedures required for waiver of extradition and the reports required when delivery is refused. As in all other aspects of your duties as an LN, you should exercise care in preparing those documents required for the delivery of personnel and waivers of extradition. If you are in doubt as to what the proper procedures are for a particular case, you should consult the appropriate sections of the JAGMAN and, if reasonably available, a judge advocate of either the Navy or Marine Corps. 10-14

CHAPTER 11 LEGAL ASSISTANCE As an LN, you may become involved with a section of law that is called legal assistance. This particular section of law is so diverse that it covers nearly every type of law practiced in the United States. Legal assistance cases, for example, run the gamut from domestic relations and taxation to veterans’ rights. Although your daily role in the legal assistance area is to assist the legal assistance attorney, you also may be responsible for solving routine problems. You must, therefore, be able to distinguish complex legal problems from simple legal matters and also be able to identify areas of difficulty that merely concern administrative affairs. A complete discussion of your duties is explained later in this chapter. LEARNING OBJECTIVES Upon completing this chapter, you should be able to do the following: 1. Describe the basic applicable policy and procedures of LN duties regarding legal assistance. 2. Understand the basic functions and services within a legal assistance department. LEGAL ASSISTANCE PROGRAM The legal assistance program has provided needed legal advice and assistance to military personnel and their dependents since 1943. Legal assistance is the giving of advice and assistance about personal legal problems of a civil nature, as distinguished from criminal or official service matters. Purpose Personnel problems that remain unsolved adversely affect morale and operational readiness and frequently result in behavior that requires disciplinary action. The purpose of the legal assistance program is to provide prompt assistance to resolve personal legal difficulties. The program serves as an effective preventive law measure that contributes to the morale and efficiency of commands. Policy The policy of the Department of the Navy (DON) is to maintain, from available resources, a legal assistance program to make eligible persons aware of their legal rights and obligations. The program is designed to help military personnel and their dependents obtain adequate legal advice and services from within the military service. Legal Assistance Attorneys All Navy and Marine Corps judge advocates on active duty, Regular or Reserve, and all civilian lawyers under the cognizance of the Judge Advocate General (JAG) who are members of the bar of a federal court, of the highest court of any state, or of foreign countries (and are authorized to practice law in the courts of the country concerned) are designated legal assistance attorneys. Navy and Marine Corps judge advocates not on active duty may be designated as legal assistance attorneys by JAG. While performing legal assistance duties, legal assistance attorneys are guided by the Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General, JAGINST 5803.1(series), and the Standards of Conduct and Government Ethics, 11-1

SECNAVINST 5370.2(series). Persons who are authorized to practice law in the courts of a foreign country are guided by similar standards that have been issued for the guidance of lawyers in the country concerned. Non-Lawyer Personnel Non-lawyer legal officers, LNs, independent duty LNs, and legal clerks may assist attorneys, but they may not provide legal advice or provide services that call for the professional judgment of an attorney. Non-lawyer personnel may provide assistance not requiring the attention of an attorney, as outlined in the Navy-Marine Corps Legal Assistance Program, JAGINST 5801.2(series).

Persons Eligible for Assistance Legal assistance is intended primarily for active duty personnel and may be provided to members of the Armed Forces of the United States on active duty, including reservists and members of the National Guard on active duty for 30 days or more. As resources permit, legal assistance may also be provided to the following categories of people in the order listed: 1. Dependents of active duty personnel and dependents of personnel who died while on active duty. 2. Retired military personnel. 3. Dependents of retired members and dependents of deceased retired members. 4. Reservists on active duty for single periods of 29 days or less and their dependents, as authorized by the legal assistance area coordinator, in emergency cases. Additionally, to enhance the readiness of Reserve personnel for mobilization, active duty legal assistance attorneys and Reserve judge advocates that have been authorized by JAG may provide pre- mobilization legal counseling and assistance to inactive Reserve personnel consistent with mobilization readiness needs. Pre-mobilization assistance primarily consists of making sure wills and powers of attorney are current and may include drafting basic wills and basic powers of attorney. 5. Civilian personnel who are United States citizens, other than local hire employees, employed by, serving with, or accompanying the Armed Forces of the United States, when they are deploying for at least 30 days to a combat zone in support of a contingency operation, assigned to a foreign country, or on board a naval vessel. These personnel may be provided pre-deployment legal assistance services. Contractor eligibility will continue to be limited to those contractors to whom DOD is contractually obligated to provide legal assistance as part as logistic agreements. 6. Dependents living in a foreign country accompanying authorized civilians listed previously. 7. Members of allied forces and their dependents in the United States, serving with the Armed Forces of the United States. 8. 20/20/20 un-remarried former spouse as defined in 10 U.S.C. § 1072. 9. Spouses, former spouses, and children who are victims of abuse by members losing the right to retired pay under 10 USC §1408. 10. Dependents of members separated for dependent abuse consistent with the transitional compensation provisions of the 10 USC §1059. 11. Other persons authorized by JAG. 11-2

Persons who are separated from active service other than by retirement are not generally eligible for legal assistance. Normally, the various veterans' organizations will help such individuals. Confidential and Privileged Character of Service Provided Information and files on legal assistance clients are confidential and privileged under law and applicable professional rules and guidelines. This confidentiality is separate and distinct from military security classification. Confidential and privileged matters may not be disclosed to anyone by the attorney providing legal assistance, except upon the specific permission of the client or when the responsible legal assistance attorney determines that disclosure is authorized or required by law or applicable rules of professional conduct. Disclosure of otherwise confidential and privileged information cannot be authorized or made lawful by order of superior military authority. Other attorneys may be granted access to confidential and privileged information for supervisory and quality assurance purposes or to obtain their assistance in the case. Attorneys granted access to information under this provision are bound to maintain the confidentiality of the information. Office records for prevention of conflicts of interest and statistical data may also be derived from information provided by the client. If requested by a member’s commanding officer (CO) or officer in charge (OIC), information on whether a member of a command reported to a legal assistance office will generally be provided. Information about a member’s presence in the office will not be disclosed, however, if doing so would reveal the nature of conversations, advice, or resistance. The nature of the legal assistance or the substance of conversations or advice will not be provided without the client’s consent. FUNCTIONS OF LEGAL ASSISTANCE ATTORNEYS A legal assistance attorney, in addition to his or her responsibility to discharge his or her assigned duties that are beyond the scope of a legal assistance role, must perform a myriad of legal functions to satisfy the legal assistance needs of his or her fellow Navy citizens. The breadth and variety of these functions are discussed as follows. The legal assistance attorney and the LN in today’s modern Navy have an increasingly important and significant role to play in helping to maintain the high morale and personal motivation needed in an all-volunteer force. As the concept of group legal services gains greater support throughout our society, the Navy’s legal assistance program has provided and will continue to provide comprehensive and high-quality legal services to Navy and Marine Corps personnel. This is done through an expansion in scope of the traditional program and further through the expanded legal assistance program. After the formation of an attorney-client relationship, information concerning a servicemember’s appointments or meetings with a legal assistance attorney or legal staff assistant may not be disclosed, unless an exception to the attorney-client privilege applies or the client gives informed consent. Attorney-Client Relations The very nature of legal assistance requires good rapport between the legal assistance attorney, the LN, and the client. Striving for greater respect and understanding is a necessary ingredient of a successful legal assistance program. For naval personnel to have faith and confidence in their lawyer and the LN, they must first know them and understand their services. It is at the level of daily contacts with clients that the greatest opportunities for fostering good rapport exist. Following are suggestions for developing such relations in these daily contacts. 11-3

First Impressions Very often, a client’s first impression of a Navy lawyer is obtained through a telephone call or a visit to the legal assistance office. As an LN, you should try to see your office as others might see it. Is it businesslike, clean, comfortable, and efficient looking? Do you and the other personnel working in the outer office appear to be competent and friendly? Are the offices soundproof enough in the form of carpets and other materials so that clients’ problems can be discussed quietly, discreetly, and in private? The clients’ waiting room as well as the lawyer’s private office should present a professional appearance. The LN’s telephone manners are very important. A voice with a smile can encourage a prospect to follow up his or her phone call with a visit. The majority of clients calling for legal assistance are having a crisis. It is very important that you empathize with the client. A gruff or impatient telephone reception can discourage a prospective client from ever seeing the legal assistance attorney. By providing the receptionist with a checklist, the receptionist’s contribution to the operation of the legal assistance office can be materially increased and the job made more interesting as well. See Figure 11-1 for a sample checklist. At the time the client first calls or comes into the office and speaks to the receptionist or LN, inquiry should be made as to the general nature of the assistance being sought, for example, taxes, wills, automobile registrations, and accidents. Once that has been determined, by consulting the Telephone Receptionist Checklist, you or the receptionist can advise the client what documents or information the client should bring along at the time he or she consults with the legal assistance attorney. By following this procedure, one or more trips to the office and much waiting time in the office can often be saved for the client as well as for the legal assistance attorney. When you (or the legal assistance attorney) are busy, the client will appreciate recognition that his or her time is also valuable. An advance telephone call to set a new appointment or a few moments spent in explaining the delay to the client are merely applications of the Golden Rule in attorney-client relationships. 11-4

Figure 11-1A — Telephone Receptionist Checklist. 11-5

Figure 11-1B — Telephone Receptionist Checklist. Keeping the Client Informed To the client his or her case may represent one of the most important things in his or her life. The case may also be a source of anxiety. Naturally, he or she expects and is entitled to receive a continuing report on the progress of the case. This may be done with little or no extra effort on either your part or the legal assistance attorney’s part by sending copies of correspondence to the client, or by an occasional telephone call to report the status of the case. A periodic letter, even though there is little to report, will be appreciated. This shows that the legal assistance attorney has not allowed the matter to be buried or forgotten. This can be done by the legal assistance office staff on a monthly diary basis to save the lawyer’s time. Each month a brief status report from individual case records can be prepared, reviewed by the legal assistance attorney, and sent to the client concerned to bring him or her up to date on the status of the case. 11-6

Legal Assistance References To help the legal assistance client, you should be familiar with the various reference materials available in the office where you work. Some of these reference materials are common for all legal assistance offices and included in these are the Voting Assistance Guide, NAVEDTRA 46007; the State Tax Guide published by Office of the Judge Advocate General (OJAG); the Legal Assistance Policy Amendments (LAPA) published by OJAG, U.S. Navy; the Military Personnel Manual (MILPERSMAN); and the Manual of the Judge Advocate General (JAGMAN). Additional reference materials will vary from office to office depending on the geographical location of the office and the types of services provided by that office. Legal Assistance Services The scope of the practice of law and the legal assistance attorney’s duties and responsibilities are governed by JAGINST 5801.2 (series). Advice and service regarding the following matters are normally available to eligible persons at legal assistance offices, but may be limited due to availability of resources:  Basic wills, trusts, and estate planning—Complex estate planning and drafting is not routinely provided in the legal assistance program.  Domestic relations—Advice about the legal and practical implications of divorce, legal separation, annulment, custody, and paternity is provided. Assistance in domestic violence cases will be consistent with the Department of the Navy Family Advocacy Program, SECNAVINST 1752.3 (series).  Adoption and name changes—Advice and document preparation, including pleadings, are provided as appropriate.  Taxes—Basic advice and assistance on federal, state, and local taxes are provided as appropriate. Legal assistance attorneys do not sign returns as paid preparers, nor do they normally prepare tax returns.  Landlord-tenant relations—Advice and assistance, including review of personal leases and communication and correspondence in behalf of the client, are provided as appropriate.  Civil suits—Advice and appropriate assistance are given. In-court representation is prevented, except as provided in the expanded legal assistance program. Procedures and requirements of small claims courts and other courts of limited or special jurisdiction are explained and appropriate referral made.  Criminal matters—Limited general advice may be provided regarding minor (misdemeanor) criminal matters and traffic offenses within the jurisdiction of the civilian courts. Serious criminal matters are not within the scope of legal assistance and are referred to military defense counsel or private civilian attorneys, as appropriate.  Other services—Advice and assistance are given on powers of attorney, real estate, bankruptcy, contracts, consumer affairs, insurance, immigration, naturalization, and other areas if not inconsistent with legal assistance regulations. Advice and assistance regarding military matters may be provided subject to the limitation stated in the JAGMAN. 11-7

 Nonsupport and indebtedness—Advice and assistance, including communication, correspondence, and negotiations with another party or lawyer, on behalf of the client, are provided as appropriate. You must be familiar with the Navy’s policy regarding indebtedness of its members. You will decide how to handle indebtedness correspondence by setting priorities and setting up files and tickler systems to track cases. Keep in mind that an indebtedness problem is of a personal nature and is treated as a confidential matter between the service member, his or her division officer (or whoever the CO appoints as advisor), and your office. Public knowledge is not required unless administrative proceedings or disciplinary action becomes necessary.  Policy. From start to final settlement, a monetary obligation is a private matter between the servicemember and the creditor. A member of the naval service, however, is expected to settle his or her just financial obligations in a proper and timely manner. The failure to pay just debts or the repeated undertaking of obligations beyond one’s ability to pay is regarded as evidence of irresponsibility. It is considered in retaining security clearances, making advancement in rate or special duty assignments, recommending reenlistments, or authorizing extensions. In aggravated circumstances, indebtedness problems may become grounds for disciplinary action or administrative separation. The naval service has no authority to require a member to pay any private debtor or to divert any portion of his or her salary to payment. No CO may adjudicate claims or arbitrate controversies respecting alleged debts; however, all COs should cooperate with creditors to the limited extent of referring qualified correspondence to the member concerned. Before discussing what is qualified correspondence or qualified indebtedness complaints, we will look at two acts that a creditor must follow before a CO is obligated to cooperate with the creditor.  Servicemember’s Civil Relief Act. On 19 December 2003, President Bush signed into law the Servicemembers Civil Relief Act (SCRA). This law is a complete revision of the Soldiers’ and Sailors’ Civil Relief Act (SSCRA). The SCRA provides a number of significant protections to servicemembers. To name a few, these include extending stays to court hearings if military service materially affects servicemember’s ability to defend their interests, clarifies the rules on the 6% interest rate cap on pre-service loans and obligations, modifies the eviction protection section by precluding evictions from premises occupied by servicemembers for which the monthly rent does not exceed $2,400, extends the right to terminate real property leases to active duty servicemembers moving pursuant to permanent change of station orders or deployment orders of at least 90 days; and added a new provision allowing the termination of automobile leases for use by servicemembers and their dependents.  Federal Truth in Lending Act. The Federal Truth in Lending Act requires a disclosure of credit terms so the consumer may compare the various terms available to him or her and avoid the misinformed use of credit. To this end, the act requires that credit terms and costs be explained to the consumer in a uniform manner revealing the annual percentage rate of the total finance charge.  Fair Debt Collection Practices Act. The Federal Fair Debt Collection Practices Act prohibits contact by a debt collector with third parties, such as COs, to aid in debt collection unless there has been prior consent by the debtor, or the debt collector obtains a court order. The act defines what a debt collector is and is not. Generally, those prohibited from contacting the CO are those firms engaged in the collection of debts as their primary purpose. In other words, the original creditor has given up trying to collect and has turned it over to a professional debt collector. The act does not prohibit the original creditor from contacting the command. 11-8

 Processing Of Complaints. Complaints of indebtedness are referred to the service member when the creditor’s correspondence contains evidence that the debt complained of has been reduced to judgment. If it has not been reduced to judgment, the correspondence must contain a certificate of compliance (or its equivalent) and proof that the credit transaction was made following the Truth in Lending Act and its Standards of Fairness. The creditor also must submit a Statement of Full Disclosure showing the terms of the transaction disclosed to the service member when the contract was executed.  If the debt collector is in violation of the Fair Debt Collection Practices Act or a state statute regulating debt collection practices, return the correspondence to the sender, along with a letter similar to the sample letter in Figure 11-2.  Referral to Service Member Debtor. Normally, a division officer or you, as the senior LN, refers a qualified indebtedness complaint to the service member at a conference in which the member is confronted with the alleged debt. If the service member acknowledges the debt and his or her ability to pay, instruct the member on the fact that he or she is expected to make good on the debt as soon as possible. If the service member disputes the debt or states an inability to pay, refer him or her to the nearest legal assistance officer.  Correspondence with the Creditor o When you refer a complaint to a service member debtor, you should notify the creditor of the referral and some indication of the debtor’s intentions. Prepare and send a letter similar to the sample letter in Figure 11-3 to the creditor and make sure the member’s intentions reach the creditor either directly or through a legal assistance officer. o When the correspondence shows the complaining creditor has no judgment, is subject to the Truth in Lending Act, and contains no evidence of the compliance-disclosure requirements already discussed, prepare and send a letter similar to the sample letter in Figure 11-4, enclosing a copy of the Standards of Fairness and forms for a Statement of Full Disclosure and the Certificate of Compliance. Hold the complaint in abeyance pending reply from the creditor. o If the creditor resubmits the complaint and includes the completed, required forms, or their equivalent, the complaint is considered qualified, and you should process it accordingly. If the resubmitted complaint contains neither form, or a set of incompletely or insufficiently completed forms, return the creditor’s correspondence with a cover letter similar to the sample letter Figure 11-5. Occasionally, a disgruntled creditor who did not qualify his or her complaint for referral writes to his or her Congressman. This leads to a congressional inquiry. The most important thing to know about a congressional inquiry is that it must be answered quickly and courteously and provide sufficiently complete information to answer the question without violating anyone’s rights. A congressional inquiry is dealt with by using a letter similar to the sample letter in Figure 11-6. 11-9

Figure 11-2 — Sample Letter to Debt Collector in Violation of Fair Debt Collection Practices Act of State Statute.

Figure 11-3 — Sample Letter of Complaint Referred to Service Member Debtor.

Figure 11-4 — Sample Letter to Creditor who Provides no Evidence of Meeting Compliance Disclosure Requirements. 11-10

Dear Sir/Madam:

This is in reply to your letter of (date) concerning the alleged indebtedness of (rate, name). After a careful review of the contents of your correspondence, it does not appear that you have met the Full Disclosure test and the Standards of Fairness requirements. (Specify particulars to the extent appropriate.) We are not permitted to assist you until the Standards of Fairness have been followed or until such time as you have obtained a civil judgment in a court of competent jurisdiction which follows the provisions of the Soldiers’ and Sailors’ Civil Relief Act.

By copy of this letter the Chief of Naval Personnel is being advised of the foregoing.

Sincerely,

Encl: (1) Correspondence in this case copy to: CHNAVPERS Figure 11-5 — Sample Letter to Creditor who continues to Show no Evidence of Meeting Compliance-Disclosure Requirements. My dear (Congressman/Congresswoman):

This is in reply to your letter of (date) concerning the alleged indebtedness of (rate, name), United States Navy.

Navy personnel are well indoctrinated in the Department of the Navy’s policy of expecting all members of the naval service to discharge their acknowledged debts and just obligations. The Department desires to cooperate and be of assistance to persons who are experiencing difficulty in collecting from naval personnel acknowledged personal debts. There is no legal authority to exercise control o r direction over Federal pay in matters of personal indebtedness. Cooperation is restricted to bringing the matter of delinquency in indebtedness to the attention of the member concerned, with the request that they communicate with the creditor regarding their intentions in the matter.

Department of Defense directives require that as a condition precedent to forwarding complaints of indebtedness to a service member the enclosed forms must be completed and the Standards of Fairness complied with. Your constituent should be advised to send the forms to the Commanding Officer, (fill in).

Sincerely yours,

Encl: (1) Standards of Fairness and forms for a Statement of Full Disclosure and a Certificate of Compliance Figure 11-6 — Sample Letter to Answer Congressional Inquiry. 11-11

Limitations on Scope of Legal Assistance Services Persons requiring the advice or assistance of an attorney on a personal legal matter, as contrasted with a military justice problem, should be referred to a legal assistance attorney. Legal assistance is authorized for personal legal affairs only. Legal advice and assistance are not provided regarding business ventures or regarding matters that are not of a personal nature. Advice or Assistance in Official Military Matters Legal assistance duties are separate and apart from responsibilities of trial counsel, defense counsel, or others involved in processing courts-martial, nonjudicial punishment, administrative boards or proceedings, and investigations. Members accused or suspected of offenses or conduct that may result in disciplinary or judicial proceedings under the Uniform Code of Military Justice (UCMJ), or processing for administrative discharges, will be referred to a defense counsel Representation of Opposing Parties or Interests If two or more eligible persons with conflicting interests seek legal assistance from the same office on the same matters, the party first establishing an attorney-client relationship is provided representation. Other parties are advised that they are eligible for assistance, but that it must be obtained from another source. The legal assistance office will then follow the guidance contained within JAGINST 5801.2 (series) on referral of the conflicted party or parties to an alternate source of assistance. Proceedings Involving the United States Legal assistance attorneys may not advise on, assist in, or become involved with individual interests opposed to or in conflict with the interests of the United States without the specific approval of JAG. Examples include a claim for monetary damages against the United States, filing for a restraining order against the United States, or filing Article 138, (UCMJ), petitions. Telephone Inquiries In the absence of unusual or compelling circumstances, legal advice is not provided over the telephone. This rule does not prohibit appropriate follow-up telephone discussions between the legal assistance attorney and the client. Advice to Third Parties The attorney-client relationship requires personal communication. Except when the client is unable to communicate adequately, advice or assistance will not be provided through third parties. An exception would include drafting a will for one spouse based upon discussion with the other spouse. When command representatives seek information or assistance on behalf of service members, they shall normally be instructed to have the service member obtain a legal assistance appointment. Bona fide requests for command services shall be referred to the judge advocate normally charged with providing advice and assistance to the command concerned. Referrals and Fees The legal assistance attorney may determine that the best interests of the client will be served by referring the case to another attorney, often a private civilian attorney. Referral may be for a variety of reasons, including expertise of the attorney or regulations that prohibit involvement of the legal assistance attorney. Should referral to a private civilian attorney be necessary, payment of legal fees is the client’s responsibility. The government will not reimburse the individual or pay any expenses associated with the referral. Reserve personnel providing legal assistance while on active duty may not refer legal assistance clients to themselves in their private practice nor to their law firm. 11-12

Services provided in the DON legal assistance program are at no cost to eligible personnel. All active duty personnel and civilian employees involved in providing services or advice in the legal assistance program are prohibited from accepting or receiving, in any manner, any fee or compensation other than government compensation for legal services provided to persons eligible for assistance. Reserve personnel on inactive duty or in any official capacity are prohibited from receiving fees or compensation for the same matters about which they consulted with or advised the legal assistance client in an official capacity. THE EXPANDED LEGAL ASSISTANCE PROGRAM Under the expanded legal assistance program, legal assistance attorneys in selected offices may provide legal services, including in-court representation to certain categories of clients about matters listed in the JAGMAN, on a limited basis. The local legal assistance office should be consulted for specific information. The expanded legal assistance program, as authorized by JAG, provides in-court legal services for eligible personnel who cannot afford private attorney fees. Those personnel eligible for the expanded legal assistance program include the following:  Active duty military personnel in paygrades E-3 and below, without dependents.  Active duty military personnel in paygrades E-4 and below, with dependents. Their dependents are also eligible.  Other active duty military personnel of higher paygrades and their dependents who are unable to afford an attorney without substantial financial hardship. Representation under the expanded legal assistance program of persons in this category must be approved by JAG.  Service members with cases that involve a significant issue that affects other service members, if approved by the JAG or his designee, DJAG (Legal Assistance), or the Command Master Chief (CMC) (Code JA). THE PREVENTIVE LAW PROGRAM The preventive law program is an integral part of the DON legal assistance program and is intended to decrease the number of personal legal problems confronting military personnel and their families. The preventive law program is intended to help in avoiding noncriminal legal problems and to help prevent the recurrence and proliferation of legal problems affecting commands or installations. When a legal problem with widespread implications for morale or discipline arises, the legal assistance area coordinator must make sure all methods are used to highlight and resolve the problem. The preventive law program requires full communication and cooperation among all judge advocates and civilian attorneys in the DON and necessitates specific coordination with appropriate civilian officials. The program’s goal is to improve the overall readiness, efficiency, and performance of military members of the DON by enhancing morale and discipline through training and information. In addition to improving overall mission readiness, other objectives include the following:  Educating persons to recognize potential legal problems so professional legal counsel is sought before problems arise  Providing COs and their personnel with a broad channel of communication on legal assistance matters  Encouraging obedience to the law through self-discipline  Program responsibilities are generally the same as for the legal assistance program. Attorneys participating in preventive law services such as unit education, training, legal assistance 11-13

checkups, and briefings need to make sure eligible personnel are informed about the following:  Counseling services available through the legal assistance program  The importance of seeking legal advice before taking action on important matters such as signing purchase agreements, contracts, leases, or divorce settlements  Rights, privileges, and responsibilities arising from laws concerning the member  The importance and method of adequately preparing legal affairs before a deployment  Rights, privileges, and responsibilities of the member as a consumer  The expanded legal assistance program LIAISON WITH OTHER GOVERNMENT AGENCIES A working relationship between the legal assistance office and certain government agencies should be established. Where there are frequent dealings, personal contact should be made. These agencies include the following:  IRS and state tax agencies—Many tax rules and policies apply only to the military. Special information relative to service members’ status should be gathered, and a supply of all the pertinent tax forms should be maintained in the office.  Social Security Administration—Social Security rules and regulations are of special interest to career service members, retired service members and their dependents, and dependents of deceased service members. A supply of the several brochures issued by the Social Security Administration should be maintained.  Department of Veterans Affairs (VA)—A working knowledge of the VA procedures is especially important.  Department of Justice—The Justice Department is responsible for enforcing the SCRA on behalf of the U.S. Government and its agents and service members. Liaison with the attorneys in the Justice Department who are assigned to such duties will encourage proper enforcement under the SCRA. Lack of proper enforcement should be brought to the attention of JAG.  Immigration and Naturalization Service-The immigration statutes are of particular importance for counseling noncitizen service members such as those who come from the Philippines. The International Law Division of the OJAG maintains an expertise in this area as well.  Customs Office—There are many service members who return from foreign duty stations and encounter problems with the Customs Office to make this more than a merely academic interest to the legal assistance attorney and his or her staff.  Consumer agencies (federal, state, and local)—The Federal Trade Commission, Food and Drug Administration, and the Federal Consumer Product Safety Commission maintain field offices in major cities in the United States. At the state and local level, many consumer protection divisions have been created in the state attorney general’s offices and in the county prosecuting officer’s agencies.  State motor vehicle departments—The legal assistance office staff should be familiar with the location of the closest motor vehicle department office and the modus operandi of that office. Also, a supply of the department’s brochures and forms should be obtained for use by clients. 11-14

COOPERATION WITH OTHER NAVY AGENCIES The Navy-Marine Corps Relief Society is commonly known only for its financial assistance. However, the society provides other services such as budget counseling for individuals and families who need help in managing their financial affairs. The society can also make a loan to a service member. The Navy Federal Credit Union provides services that include debt consolidation loans, savings plans, and financial advice. LEGAL ASSISTANCE RECORDS, FILES, AND REPORTS Command records showing client contact and the general nature of assistance are maintained by the legal assistance office for administrative and statistical purposes. Although such records should not contain privileged or confidential information and are, therefore, not privileged, maintenance of these records must comply with the Privacy Act. Information in these records is used to contact clients and former clients about assistance provided, to guard against conflicts of interest in providing legal assistance, to develop statistical evaluation of services provided, and to provide information for better assisting clients and administering the office. Legal assistance case files (for example, those containing privileged or confidential information) belong to each legal assistance attorney who is solely responsible for their content and maintenance. The legal assistance office will provide storage facilities for files. Higher authority may from time to time make suggestions regarding the maintenance of files. Before transferring from a legal assistance office, the legal assistance attorney must store, destroy, or, if the client approves, turn over to another attorney the client case files. The legal assistance office filing system should be simple enough to operate so it takes only a minimum amount of time for anyone in the office to file papers. Four types of files should be maintained. They are the client case file, the office reading file, the reference material file, and the forms file. The Client Case File An individual client case file should normally be opened only for those matters that will require follow- up visits, correspondence, and similar material. Current active files should contain all documents, papers, notes, and so on, that relate to the client. The record of each client’s visit (or telephone call, if advice is given in this manner) should consist of, at a minimum, a completed Legal Assistance Case Record, NAVJAG 5801.9 (series), or similar locally prepared form. The file should contain a detailed description of the client’s problem and the advice given. Where there is inadequate space on this form, a supplementary sheet containing the attorney’s notes should be attached. All action taken by an attorney, including consultation, telephone calls, research, and his or her opinion and advice, must be clearly entered on the attorney’s notes. The best time to do this is immediately after the action. If the case is resolved in one visit (or perhaps one consultation and a follow-up visit to execute a document), a client case file would not normally be opened. The client’s case can be opened, disposed of, and the Legal Assistance Case Record and any supplementary attorney’s notes filed immediately. Legal Assistance Office Reading File A copy of each outgoing piece of correspondence should be placed in chronological order, most recent on top, in the monthly legal assistance office reading file. This file should be maintained separately from the regular office reading file. These files maybe destroyed after 2 years. Material contained in the legal assistance reading files, as well as the individual client case files, is privileged. 11-15

Reference Material File A separate index and series of files should be kept for reference material other than that which normally would be placed in the library. Included in this category are notes, releases, pamphlets, and bulletins not subject to being serialized or kept by category in loose-leaf or bound form. It is important that this system be kept up to date since these items are often highly relevant to pending cases. Forms File A good, well-indexed form file can be of immeasurable importance to a legal assistance office, especially where it relates to matters of local practice. Considerable savings in time and effort can be made by reference to a previously drafted form. However, do not let the form file get too large; discard or change any forms in the file that are obsolete or no longer used. Filing Practices All papers filed, other than original documents not susceptible to being punched, should be secured in the file. Letters and replies should be in chronological order, with the most recent on top. Every effort should be made to see that files are not retained on the lawyer’s desk unless they are actually being used. In larger offices, a chargeout slip or card should be used to indicate where the file is located. File Responsibility Responsibility for the maintenance of the client files should be assigned to one person. It is a mistake to assign the newest person in the office to the important job of filing. Proper files management is vital to the smooth operation of an office, and it requires an experienced clerical assistant be assigned this duty. Clear, written instructions must be given to the person responsible for the files. File Retention When a matter has been concluded, the case file should be closed quickly to conserve valuable filing space. Only two items should be kept: (1) the Legal Assistance Case Record and (2) the attorney’s notes containing the file history. All documents, including those drafted by the legal assistance attorney, should be returned to the client together with whatever correspondence and memorandums the legal assistance attorney determines that the client should have. The remainder of the file can then be destroyed. January of each year should be scheduled for the destruction of all 2-year-old closed files. For example, in January 2010, all files closed during 2007 may be destroyed. Legal Assistance Office Reports In 2006, OJAG mandated that all paper reports be discontinued and all cases be reported through the Case Management Tracking Information System (CMTIS). This system contains electronic records of each client, including his or her contact information, attorney notes, and notary services. This system provides direct statistical data to upper echelons. Any legal assistance provided by Reserve lawyers must also be reported. If the Reserve lawyer provides the legal assistance at a base legal assistance office, then each of the matters handled by him or her should be reported in CMTIS, as these matters are part of that office. In some areas, legal assistance is rendered by the Reserve lawyer in his or her office. In that event, a separate report must be made by the CO of the law firm to which the Reserve lawyer is attached. 11-16

SUMMARY As you can readily see, the legal assistance program is an important part of your duties as an LN. The effectiveness of the legal assistance program is only as good as the personnel who are providing the assistance. Remember, you will be working very closely with both legal assistance clients and legal assistance attorneys, and your attitude and ability to provide the type of assistance requested will be the measuring stick that legal assistance clients use to assess the value of the services provided by the legal assistance office. 11-17

CHAPTER 12 FOREIGN CLAIMS A significant portion of your duties as a LN will entail the investigation and processing of claims. Claims involving the United States Government and its military activities are governed by a complex system of statutes, regulations, and procedures. This chapter is not a substitute for the official departmental claims regulations published in the JAG Manual and JAGINST 5890.1(series), Administrative Processing and Consideration of Claims on Behalf of and against the United States. It is, however, a useful starting point for research into claims. This chapter is organized to reflect foreign claims statutes and their function in the claims system. Claims are adjudicated by a complex system of statutes, regulations, and procedures. Claims that are not covered by one of the general claims statutes are frequently payable under one of the specialized statutes. Thus, specialized statutes can fill gaps in areas where the general statutes do not provide coverage. Conversely, some claims are not cognizable under one of the general statutes because one of the specialized statutes may apply to the claim. Likewise, classes of persons barred by statute or regulation from collecting under a general claims statute often can be compensated under one of the specialized statutes. The key to understanding claims law is to realize that it involves a logical system of interacting provisions and not just a perplexing labyrinth of seemingly unrelated rules. LEARNING OBJECTIVES Upon completing this chapter, you should be able to do the following: 1. Describe the basic applicable policy and procedures of LN duties regarding Foreign Claims 2. Understand the basic functions of processing foreign claims. FOREIGN CLAIMS ACT The Foreign Claims Act, 10 U.S.C. § 2734-2736 (1982) (FCA), provides compensation to inhabitants of foreign countries for personal injury, death, or property damage caused by, or incident to, noncombat activities of military personnel overseas. Although the U.S. Government’s scope of liability under the FCA is broad, certain classes of claimants and certain types of claims are excluded from the statute’s coverage. Procedures for adjudicating an FCA claim are substantially different from the general procedural pattern for other types of claims against the government. Chapter VIII, part B of the JAG Manual prescribes the requirements for investigating and adjudicati ng FCA claims. Scope of Liability The government’s liability under the FCA is based on two general factors: (1) loss caused by military personnel and (2) loss incident to noncombat military activities. The government’s liability under the FCA is greater and more limited than other claims in terms of eligible claimants and territorial application. Loss Caused by Military Personnel Under the FCA, the government is liable for personal injury, death, and property damage, including both real and personal property, caused by military members or civilian military employees. The scope of employment doctrine does not apply except when the civilian employee is a native foreign national (for example, a Spanish citizen employed by the U.S. Government in Spain who must be 12-1

acting within the scope of employment for a possible recovery under the FCA). Also, the acts that caused the loss need not be wrongful or negligent. The government assumes liability for virtually all acts ranging from mere errors in judgment to malicious criminal acts. Loss Incident to Noncombat Military Activities The government assumes liability for personal injury, death, or property damage, both real and personal property, caused by, or incident to, noncombat military activities. Such activities are peculiarly military, having little parallel in civilian life, and involve situations in which the federal government historically has assumed liability. If such a loss is incident to noncombat military activities, it will be paid under the FCA. Effect of Claimant’s Negligence A claimant whose negligent or wrongful conduct partially or entirely caused the loss might be prevented from recovery under the FCA. The effect, if any, of the claimant’s contributory or comparative negligence is determined by applying the law of the country in which the claim arose. Under such circumstances, the claimant recovers under the FCA only to the extent that his or her own courts would have permitted compensation. Territorial Application The FCA applies to claims arising outside the United States or its territories, commonwealths, and possessions. The fact that the claim arises in a foreign country, but in an area that is under the temporary or permanent jurisdiction of the United States (for example, an overseas military base), does not prevent recovery under the FCA. Relationship to Claims under Treaty or Executive Agreement Certain treaties and executive agreements, such as Article VIII of the NATO Status of Forces Agreement, contain claims provisions that may be inconsistent with the FCA principles and procedures. When such treaty or executive agreement claims provisions conflict with the FCA, the treaty or the executive agreement usually governs. In countries where such treaty or executive- agreement provisions are in effect, consult the directives of the cognizant area coordinator before processing any claims by foreign nationals. Exclusions from Liability There are two general categories of exclusions from FCA liability: excluded types of claims and excluded classes of claimants. Excluded Types of Claims The following types of claims are not payable under the FCA:  Claims that are based solely on contract rights or breach of contract  Private contractual and domestic obligations of individual military personnel or civilian employees (private debt owed to foreign merchant)  Claims based solely on compassionate grounds  Claims for support of children born out of wedlock where paternity is alleged against a service member  Claims for patent infringements  Claims arising directly or indirectly from combat activities 12-2

 Admiralty claims unless otherwise authorized by JAG Excluded Classes of Claimants The following types of classes of claimants are excluded from recovering under the FCA:  Inhabitants of the United States, including military members and dependents stationed in a foreign country and U.S. citizens and resident aliens temporarily visiting a foreign country  Enemy aliens, unless the claimant is determined to be friendly to the United States  Insurers and subrogee Measure of Damages Damages under the FCA are determined by applying the law and local standards of recovery of the country where the incident occurred. The maximum amount payable under the FCA is $100,000.00. In the case of a meritorious claim above that amount, the Secretary of the Navy may pay up to $100,000 and certify the balance to Congress for appropriation. Statute of Limitations The claim must be presented within 2 years after the claim accrues. If the claim is presented to a foreign government within this period, pursuant to treaty or executive agreement provisions, the statute of limitations requirement will be satisfied. Procedures Under the FCA, the investigation and adjudication functions are merged in a foreign claims commission that the commanding officer appoints. The foreign claims commission not only conducts an investigation similar to a JAG Manual investigation not requiring a hearing, but also is empowered to settle the claim within certain dollar limits. Example Facts. USS GETUNDERWAY (CV 78) was making a goodwill visit to Alexandria, Egypt. EM3 Party went on liberty. Wanting to see as much of the countryside as he could, he hot-wired a car parked near the pier. Later that night, while driving extremely fast, high on hashish, and carefully sipping his ouzo, EM3 Party smashed the car into a tree. The owner, Mr. Mycarbustad, an Egyptian citizen, wants to file a claim. Can he collect? Solution. Yes, Even though EM3 Party’s acts were not in the scope of his employment, were highly negligent, and involved criminal acts, the claim is payable under the FCA. CLAIMS MANAGEMENT As a LN, your knowledge in claims accounting procedures must be thorough. You need to be familiar with the many budget projects out of which claims are paid. The following will present an overview of how to manage a claims accounting system. Managing Navy Claims Funds Managing claims funds should be no more difficult than taking care of a checking account. Checks (vouchers) and deposits (case collection vouchers and fund authorizations) are recorded in a checkbook (memorandum accounting logbook). They are processed by a bank (accounting activity), which then sends out bank statements (accounting reports). These statements are used to reconcile 12-3

what actually has been recorded by the bank (accounting activity) against what should have been recorded as indicated in your checkbook (memorandum accounting logbook). While the bank statement is usually correct and reconciliation can be delayed, the accounting reports must be reconciled each month due to the possibility of input error or missing documents. Therefore, you must reconcile monthly with authorization accounting activities. Fund Authorizations All funds are issued on a NAVCOMPT Form 372, Allotment/Suballotment Authorization (Figure 12-1), by budget project. Budget project 10 authorizes funds to pay NATO/SOFA claims; budget project 11 authorizes funds to pay federal tort claims; budget project 12 authorizes funds to pay military claims; and budget project 13 authorizes funds to pay personnel claims. If necessary, and as long as JAG is notified immediately, funds can be transferred between budget projects. The fiscal year runs from 1 October to 30 September. After the initial authorization at the beginning of the fiscal year, additional funds will be authorized at the beginning of each succeeding quarter and upon request. When funds are issued by message or telephone, obligation can be made before the actual receipt of the NAVCOMPT Form 372. For the first three quarters of the fiscal year, fund balances may be carried forward from one quarter to the next, but the end-of-year balances cannot be carried forward to the next fiscal year. 12-4

Figure 12-1 — Sample NAVCOMPT Form 372, Allotment/Suballotment Authorization. 12-5

Payments Each office is authorized to pay claims up to a specified dollar amount. Specific authorizations are contained in the JAG Manual. If settlement of the claim requires payment above that authority, forward the claim to the nearest authority authorized to pay it. All payments using Navy claims funds are made on a Voucher for Disbursement and/or Collection, NAVCOMPT Form 2277 (Figure 12-2), or its equivalent. The form identifies to whom the money is paid, the amount of payment, and the account from which the funds will be withdrawn (indicated by the accounting data entered on the document). If a claim is paid in one fiscal year, but an additional payment is required (for example, a reconsideration) in the next fiscal year, pay the claim using current fiscal year funds. Deposits Make deposits on NAVCOMPT Form 2277. Deposits fall into two categories: (1) deposits back into the Claims, Defense Appropriation and (2) deposits made into an appropriation other than Navy claims funds. Deposits received in foreign currency are deposited with the local disbursing officer in the same manner as any other collection. It is the responsibility of the local disbursing officer to exchange the foreign currency for United States currency. 12-6

Figure 12-2 — Sample NAVCOMPT Form 2277, Voucher for Disbursement and/or Collection. Deposits(Claims, Defense Appropriations)carrier recoveries are the major type of deposits you will encounter in this category. Specific instructions for making deposits of carrier recoveries and any additional types of transactions related to carrier recoveries are found in JAGINST 5890.1 (series). Funds Administration The primary report used to manage these funds is the Trial Balance Report, NAVCOMPT Form 2199A (Figure 12-3). This report must be reviewed to verify that the amount of funds authorized is accurately recorded on the report. To do this, compare your current authorization to the amount shown for the General Ledger Account (GLA) 1031. They should be equal. Next, review the amount currently reported as obligations in the GLA 0998t. Ensure that this figure is as current as possible. If you are able to enter your obligations directly into the system, this should not be a problem. Next, review what has been disbursed by looking at the GLA 1060. Within several months after the end of 12-7

each fiscal year, the amount reported in the GLA 1060 should equal the total amount obligated. If it does not, determine the reasons for the differences. Finally, determine if there were any problems in liquidating the amounts obligated by looking at the GLA 1960, which will tell you what amounts have been disbursed against the account with problems (for example, no corresponding obligation or erroneous accounting data). Make sure these problems are promptly corrected. Your responsibilities do not end on 30 September. You must continue to review NAVCOMPT Form 2199A for prior years to make sure the obligations are promptly liquidated and erroneous expenditures are not charged against your operating budget. Reconciliation Reconciliation compares what is recorded in your memorandum accounting logbook with what has been recorded in the accounting system. You must reconcile both obligations and expenditures. What makes reconciliation so crucial is that the authorization accounting activity (AAA) records are the official records accepted by higher authority. For this reason they must be correct. Although the responsibility for the error may not be yours, the responsibility for an over-obligation is yours. This is why you are responsible for reconciliation, not the AAA. To reconcile you must understand what happens to a voucher after it has been prepared. The original and copies are sent to the disbursing office. A copy is retained in the preparing office for its records and either (1) a copy is sent to the AAA or financial information processing center (FIPC) to record the obligations or (2) an obligation entry is made using your local AAA/FIPC automated system. The Navy Comptroller Manual states that an approved claim authorized by law is an obligation. Therefore, to maintain current obligations, the AAA/FIPC must receive and obligate advance copies of payment vouchers. Then, when a copy of the paid voucher is received from the disbursing officer, the claim payment is removed from the accounts payable and becomes classified as expenditure. Occasionally an AAA may not receive an advance copy of a payment voucher. In those rare instances, the AAA would have an immediate expenditure. At the end of each month, the AAA uses these entries to generate several accounting reports. One of these reports is the NAVCOMPT Form 2199A. This report gives cumulative figures for your claims authorization. If the cumulative obligations shown on the NAVCOMPT Form 2199A equal the cumulative amounts recorded in the memorandum accounting logbook, then they are in balance and reconciliation is normally the case. To r econcile by job order, first verify that the amount obligated in the job order is accurately reported. Then check the listing of un-liquidated obligations to see what obligations have not yet been liquidated. To reconcile, you need two reports from your AAA—a listing of expenditures processed against your authorization and a listing of all outstanding obligations. If you have not received the necessary reports from your AAA and the AAA will not cooperate, advise JAG. The AAA is responsible for cooperating in any way possible and responding to any reasonable requests. 12-8

Figure 12-3 — Sample NAVCOMPT Form 2199A, Trial Balance Report. The two reports discussed previously are the primary reports needed to reconcile with the memorandum accounting logbook. All claims and corresponding amounts presently in the accounting system can be verified using them. If the claim is not shown as being recorded on one report, it must be shown on the other report or it will not have been recorded in the system. Reconciliations mean, therefore, that starting with one report, you go through it comparing its entries to the entries in the memorandum accounting logbook. If you do not find a voucher on one report, then go to the other report. If it is not on this report, it is not in the accounting system, and you should note this fact. Repeat this process until all vouchers recorded in the accounting system are reconciled against the memorandum accounting logbook. Besides verifying that all the vouchers have been recorded in the accounting system, note the following items: 12-9

 Accounts recorded in the accounting system that are incorrect—both obligations and expenditures  Canceled vouchers or vouchers improperly charged against a job order that are recorded in the accounting system—both obligations and expenditures Report all errors to the appropriate person at your accounting activity.

You may also receive a weekly transaction listing. Although this listing enables a weekly reconciliation, a monthly reconciliation is adequate—except at the end of the fiscal year when it is critical to monitor fund status closely. The key to effective accounting is a good relationship with the AAA. Keep the lines of communication open and whenever a problem arises consult with them. Try to cooperate with them and keep them informed. It is not always easy, but it is worthwhile to make an effort to adjust and establish appropriate procedures. Of course, make allowances for geographical separation and the fact that yours is not the only command the AAA serves . Unliquidated Obligations You are not finished managing Navy claims funds until all obligations have been liquidated. This requirement means that you must establish procedures to review the status of un-liquidated obligations. You must also review a category called unmatched. Unmatched disbursements are expenditures against your authorization that have no corresponding obligation. You are required to prepare an annual report on your review of outstanding un-liquidated obligations. Memorandum Accounting Logbook A sample format for the memorandum accounting logbook is shown in Figure 12-4 While funds are not authorized by type of claim, JAG recommends that you internally allocate specific amounts for each type of claim up to the amount of your authorization if you pay more than one type of claim. Then enter this amount in the memorandum accounting logbook and adjust internally as needed. To facilitate reconciliation, number vouchers consecutively by job order as they are prepared. Use this number in the last four positions of the Navy standard document number assigned to the voucher. If a claimant is due additional funds (for example, a reconsideration), prepare a new voucher and assign the next consecutive voucher number to it. If you do not enter the obligations yourself and vouchers are sent out in batches, always run a new total after each batch is sent out to facilitate reconciliation. If the accounting activity has not recorded the last batches forwarded in the month, then you will need only to look through the memorandum accounting logbook for the last batch recorded for use as the point of reconciliation. NOTE If you have access to an Integrated Disbursing and Accounting System terminal, you will be able to directly enter the obligations yourself. This ability makes reconciliation easier, especially if you enter them in a timely manner. NOTE The accounting activity can establish a cutoff date as to the last day in the month that documents can be forwarded to them for posting. This is to make sure all documents forwarded before that date will be posted on the report for that month. If you do not enter the obligations yourself, it is usually a good policy to stop sending vouchers to the accounting activity three working days before the end of the month. Of course this policy does not apply at the end of the fiscal year, when the allottee must coordinate with the AAA to make sure all obligations have been received and posted. 12-10

Figure 12-4 — Sample format for memorandum accounting logbook page. Corrections Occasionally you may need to adjust the amount of a payment or deposit recorded in the accounting system. When such an adjustment is necessary, contact your AAA to make the adjustment. Deposit incorrect payments or overpayments to claimants made using Claims, Navy funds back into the operating budget out of which they were originally paid. When a claim is paid out of the wrong account (for example, a personnel claim is paid citing the accounting data for a federal tort claim), contact your AAA to make the corrections. The only action required is to notify the AAA of the mistake. No adjustments need to be made in the memorandum accounting logbook. Handle refunds to carriers as if the carrier were a regular claimant, and pay out of your own authorization. The entry in the memorandum accounting logbook is the same as a regular personnel claims payment. If adjustments after the end of the fiscal year are necessary, use the following procedures. If the adjusted amount does not exceed the total unobligated balance, then the AAA/FIPC may make the adjustment authorizations locally, and authorization holders need not notify JAG. If the adjusted amount exceeds the total unobligated balance, holders must notify JAG immediately so that appropriate action may be taken. Reports To provide information required by the Office of the Secretary of Defense, you will have to submit a report of the cumulative number and dollar amount of claims obligated as of the end of the report month for the current fiscal year (for each type of claim). This report must be received in JAG within 5 working days after the end of the month. Use the assigned reports control system for this reporting requirement. SUMMARY Claims, claims management, and claims investigations are important office functions, and the total dollar amount involved in claims for or against the government is substantial. Accurate recordkeeping is the focus of claims management, and you should strive for accurate records in your claims office procedures. Accurate, efficient claims processing not only serves the government but the claimant as well. The steps necessary to achieve this goal are your responsibility. 12-11

CHAPTER 13 ADMINISTRATIVE INVESTIGATIONS Almost every Legalman (LN) will have contact with administrative fact-finding bodies. The regulations that govern these investigations are contained in the Manual of the Judge Advocate General (JAGMAN), Chapter II and JAGINST 5830.1(series) and are commonly referred to as JAGMAN investigations. The primary purpose of an administrative fact-finding body is to provide the Convening Authority (CA) and reviewing authorities with adequate information upon which to base decisions. This provides the CA with an administrative fact-finding body to search out, develop, assemble, analyze, and record all available information about the matter under investigation. As the name indicates, these investigations are purely administrative in nature— not judicial. The investigation is advisory only and the opinions are not final determinations or legal judgments, nor are the recommendations made by the investigating officer (IO) binding upon the convening or reviewing authorities. LEARNING OBJECTIVES Upon completing this chapter, you should be able to do the following: 1. Understand the proper procedures involved with the conduct and preparation of the various types of JAGMAN investigations 2. Describe the different types of inquiries and fact-finding bodies 3. Determine when an investigation is warranted 4. Determine what type of investigation is warranted and the procedures involved TYPES OF INVESTIGATIONS There are three types of administrative fact-finding bodies (courts of inquiry, fact-finding bodies required to conduct a hearing, and fact-finding bodies not required to conduct a hearing); however, for purposes of procedures, there are only two types of fact-finding bodies.

1. Fact-Finding Bodies Required to Conduct a Hearing. These include courts of inquiry and investigations required to conduct a hearing. A court of inquiry consists of at least three commissioned officers and appointed legal counsel for the court. It is convened by written appointing order, takes all testimony under oath, and records all proceedings verbatim. A court of inquiry has the power to subpoena civilian witnesses. A fact-finding body required to conduct a hearing consists of one or more commissioned officers and should have appointed legal counsel for the proceedings. It is convened by a written appointing order. The appointing order should direct that all testimony be taken under oath and/or all proceedings recorded verbatim. A collateral function of a court of inquiry and a fact-finding body required to conduct a hearing is to provide a hearing to individuals who have been designated as parties to the investigation. 2. Fact-Finding Bodies not Required to Conduct a Hearing. This category includes only the investigation not requiring a hearing. It is normally composed of a single investigator who obtains statements, rather than taking testimony, and who is not authorized to designate parties. The importance of an administrative fact-finding body cannot be stressed enough. It is not only an efficient management tool, but also can be used in a wide variety of situations ranging from the proper disposition of claims to the timely and accurate reply to public inquiry. Various directives establish requirements for conducting of inquiries into specific matters. The JAGMAN, however, is the 13-1

most inclusive. Some incidents involve conducting an inquiry for several different purposes that can be handled by one investigation; others may not. A CA must be careful to determine why an investigation is being conducted, who is supposed to conduct it, and whether it will satisfy all requirements or only a portion of them. Refer to Appendices A-2-k through A-2-y of the JAGMAN for examples of the various types of situations requiring investigation. Death Cases (JAGMAN 0225) A fact-finding body must be convened in the following death cases: (1) when the death of a member of the naval service occurred while on active duty from other than a previously known medical condition; (2) when civilians or other non-naval personnel are found dead on a naval installation under peculiar or doubtful circumstances, unless the incident is one that the Naval Criminal Investigative Service (NCIS) has exclusive jurisdiction; and (3) when death or permanent disability occurred in which the adequacy of medical care is reasonably in issue. You do not have to send a report to the Office of the Judge Advocate General (OJAG) when death occurs as a result of enemy action. A fact-finding body should be convened and the record forwarded in any case when it is unclear if enemy action caused the death. Because some commercial life insurance policies contain certain restrictions and/or certain types of double-indemnity provisions, it is desirable to make sure the essential facts are recorded while witnesses are known and available. When feasible, the facts reported should permit determinations as to whether death resulted from accidental causes, natural causes, or enemy action. Progress status reports are required on all death investigations from all command and reviewing activities every 14 days. Send a message to the Chief of Naval Personnel, with OJAG and all intermediate commands/reviewing authorities as information addressees. The requirement for the status report ceases once the investigation has been sent to the next higher level of command/reviewing authority. Advise the next of kin that they may request copies of the death investigation from OJAG (Code 13). It is most important, therefore, that mature, experienced officers complete these investigations in an accurate, professional, and expeditious manner. Send an advance copy of each death investigation, with the general court-martial ( GCM) CA's endorsement, to OJAG. If it would unduly delay submission of the investigation to await a final autopsy report, autopsy protocols, death certificates, or similar documents, submit an initial report promptly upon completion of the investigation. Submit a supplemental report via the review chain, with an advance copy to OJAG, once the autopsy has been completed. The advance report is usually released to the requesting next of kin by OJAG (after exclusion of material protected by the exemptions to the Freedom of Information/Privacy Act), unless OJAG has been alerted that subsequent reviewers may significantly alter findings, opinions, or recommendations; in which case, release is withheld until the investigative report is finally reviewed. Investigations Required by Other Regulations A JAGMAN investigation is not required if there is no reason for the investigation other than possible disciplinary action. To avoid interference, a JAGMAN investigation should not normally proceed at the same time as a law-enforcement type of investigation by the Federal Bureau of Investigations (FBI), NCIS, or local civilian law-enforcement units. If an investigation is required for other than disciplinary action, the IO should communicate with the law-enforcement personnel, explaining the need for the JAGMAN investigation, and request that the police investigators keep him or her informed of what information is obtained. Other types of investigations that have additional instructions and guidance include the following:  Safety investigations—OPNAVINST 5102.1(series)  Aircraft accident reports and aircraft mishap investigations—OPNAVINST 3750.6(series) 13-2

 Admiralty—JAGMAN Chapter XI  Felonies involving both naval and civilian personnel—SECNAVINST 5820.1(series)  Crimes involving exclusive NCIS jurisdiction—SECNAVINST 5520.3(series) and OPNAVINST 5450.97(series)  Security violations—OPNAVINST 5510.1(series)  Stolen government property—SECNAVINST 5500.4(series)  Claims for or against the government—JAGINST 5890.1(series)  Postal violations—OPNAVINST 5112.6(series) INVESTIGATIONS NOT REQUIRING A HEARING The type of fact-finding body to be convened is determined by the purpose(s) of the inquiry, the seriousness of the issues involved, the time allotted for completion of the investigation, and the nature and extent of the powers required to conduct a thorough investigation. This section will concentrate on the most common administrative fact-finding body, the investigation not requiring a hearing. Courts of inquiry and investigations requiring a hearing will be discussed later in this chapter. Keep in mind, however, that many of the basic rules and principles discussed in this section also apply to other types of investigations. As is the case with any fact-finding body, the primary function of an investigation is to gather information. A fact-finding body not requiring a hearing does not have the power to designate parties and, therefore, does not have the collateral function of providing a hearing to a party.

Any officer in command may order an investigation not requiring a hearing. For purposes of the JAGMAN, officer in command means an officer authorized to convene any type of court-martial or authorized to impose disciplinary punishment under Article 15, Uniform Code of Military Justice (UCMJ). This also includes officers in charge (OICs). An officer in command is responsible for initiating investigations of incidents occurring within his or her command or involving his or her personnel. If an officer in command feels that investigation of an incident by the command is impractical, another command can be requested to conduct the investigation. If an incident requiring the convening of an investigation occurs at a place geographically distant from the command, or the command deploys before an investigation can be completed, another command can be requested to conduct the investigation. This request should be made to the area coordinator in whose geographical area of responsibility the incident occurred. A single investigation should be conducted into an incident involving more than one command, convened by an officer in command of any of the activities involved. If difficulties arise concerning who should convene the investigation, the common superior of all commands involved will determine who will convene it. If the conduct or performance of one of the officers in command may be subject to inquiry (as in the case of a collision between ships), the common superior of all the officers involved will convene the investigation. The Investigatory Body An investigation not requiring a hearing may be composed of a single investigator or a board consisting of two or more members. The most common is the one-officer investigation. The IO should normally be a commissioned officer, but may be a warrant officer, senior enlisted, or a civilian employee, when appropriate. IOs must be those individuals who are best qualified for the duty by reason of age, education, training, experience, length of service, and temperament. Unless impractical, the IO should be senior to any person whose conduct or performance of duty will be 13-3

subject to inquiry. An expert may participate as IO or for the limited purpose of using his or her special experience. The report should make clear any participation by an expert. Ordinarily, counsel is not appointed for an investigation not requiring a hearing, although a judge advocate is often made available to help the IO with any legal problems or questions that may arise. Appointing Order (JAGMAN 0206) An investigation not requiring a hearing is convened by a written order called an appointing order. An officer in command is responsible for initiating investigations of incidents occurring within his or her command or involving his or her personnel. An appointing order must be in official letter form, addressed to the IO of the one-officer investigation. When circumstances warrant, an investigation may be convened by an oral or message order. The IO must include the signed, written confirmation of oral or message orders in the investigative report. The written appointing order for a JAGMAN investigation not requiring a hearing will contain the following: 1. Subject line (Figure 13-1) 2. Witness warnings, the purpose and scope of the investigation (Figure 13-2) The paragraphs in Figure 13-2 serve several purposes. They recite the specific purpose(s) of the investigation, give explicit instructions as to the scope of the inquiry, and direct the IO to the required witness warnings. These instructions help the IO accomplish all the objects of the investigation, not just the CA’s immediate objectives. For example, the following case of a vehicle accident involving a member of the naval service may give rise to various concerns that include (1) the CA who orders the investigation may be concerned whether local procedures regarding the use of government vehicles should be changed and whether disciplinary action may be warranted; and (2) the Judge Advocate General (JAG) may be concerned with a line of duty/misconduct determination. A properly completed investigation requires the IO to satisfy the special requirements for each of these different determinations. All fact-finding bodies are required, as directed in paragraph 2 of Figure 13-2, to make findings of fact. In the typical investigation not requiring a hearing, the appointing order directs the IO to conduct a thorough investigation into all the circumstances connected with the subject incident and to report findings of facts, opinions, and recommendations concerning the following:  The resulting damage  The injuries to members of the naval service and their line of duty and misconduct status  The circumstances attending the death of members of the naval service  The responsibility for the incident under investigation, including any recommended administrative or disciplinary action  Claims for and against the government  Any other specific investigative requirements that are relevant, such as those contained in the JAGMAN During the course of the investigation, on advice of the investigative body or on his or her own initiative, the CA may broaden or narrow the scope of the inquiry by issuing supplemental directions amending the appointing order. 13-4

Figure 13-1 — Sample Subject Line for JAGMAN Investigation.

Figure 13-2 — Sample Witness Warnings, the Purpose and Scope of Investigation. Paragraph 2 of Figure 13-2 also directs the IO to report opinions and recommendations. Unless specifically directed by the appointing order, opinions or recommendations are not made. The CA may require recommendations in general, or in limited subject areas. The appointing order may direct that testimony or statements of some or all witnesses be taken under oath and may direct that testimony of some or all witnesses be recorded verbatim. The Privacy Act requires that a Privacy Act statement be given to anyone who is requested to supply personal information in the course of a JAGMAN investigation when that information will be included in a system of records. Note that witnesses will rarely provide personal information that will be retrievable by a witness’ name or other personal identifier. Since such retrievability is the cornerstone of the definition of system of records, in most cases the Privacy Act will not require warning anyone unless the investigation may eventually be filed under that individual’s name. Social security numbers should not be included in JAGMAN investigation reports unless they are necessary to precisely identify the individuals involved, such as in death or serious injury cases. If a service member or civilian employee is asked to voluntarily provide their social security number for the investigation, a Privacy Act statement is provided. If the number is obtained from other sources, the individual does not need to be provided with a Privacy Act statement. The fact that social security numbers were obtained from other sources should be noted in the preliminary statement of the investigation. If prosecution for a suspected offense under the UCMJ appears likely, the witness suspected of the offense should be warned under Article 31(b), UCMJ, and JAGMAN 0170. Appendix A-1-m of the 13-5

JAGMAN shows the proper form to be used. The IO should collect all relevant information from all sources—other than from those persons suspected of offenses, misconduct, or improper performance of duty—before interviewing the suspect. A member of the Armed Forces, before being asked to provide any statement relating to the origin, incurrence, or aggravation of any disease or injury suffered, should be advised of the statutory right not to make such a statement. Appendix A-2-j of the JAGMAN contains a proper warning format and without this warning the statements are invalid. As Figure 13-2 illustrates, all sections of the JAGMAN that may apply to the particular incident under investigation should be listed, along with any applicable chain of command directives. Paragraph 2 of Figure 13-2 directs completion of the IO’s report within 30 calendar days of the date of the appointing order. The following are time limits for processing JAGMAN investigations: (a) The CA prescribes the time limit the fact-finding body has to submit its investigation. This period should not normally exceed 30 calendar days from the date of the appointing order; however, this period may be extended for good cause. Always include requests and authorizations for extension as enclosures to the investigation. (b) The CA and each subsequent reviewer have 30 calendar days (20 calendar days in death cases) to review the investigation. Reasons for exceeding these time limits must be documented by the responsible endorser, and deviations must be requested and approved in advance by the immediate senior in command who will next review the investigation. Figure 13-3 is an attorney work product statement. This language must be included in the appointing order if the possibility of litigation or a claim for or against the government exists.

Figure 13-3 — Attorney Work Product Statement. Figure 13-4 directs the SJA office of the command to provide clerical support to the IO. It is extremely important to designate who provides that support in order for the IO to obtain assistance in typing the investigation and producing the necessary number of copies.

Figure 13-4 — Administrative Support Statement. 13-6

The Investigation Upon first appointment as an IO, the universal question is, “Where do I begin?” The first step is to examine the appointing order to determine the specific purpose and scope of the inquiry, remembering that the general goal is to find out who, what, when, where, how, and why an incident occurred. Next, the IO should decide exactly which procedures to follow and become fully acquainted with part A of Chapter II and any sections of the JAGMAN listed in the appointing order. Most importantly the IO should begin work on the investigation immediately upon notification of appointment, whether or not a formal appointing order has been received. The investigation should start as soon as possible after the incident has occurred, due to the following reasons:

 witnesses may be required to leave the scene;  a ship’s operating schedule may require leaving the area of the incident;  events will be fresh in the minds of witnesses; and  damaged equipment/material is more apt to be in the same relative position/condition as a result of the incident. The circumstances surrounding the particular incident under investigation will dictate the most effective method of conducting the investigation. For example, an investigation of an automobile accident, in which one or more of the parties were injured, would involve (1) interviews at the hospital with the injured parties; (2) collection of hospital records and police reports; (3) eyewitness accounts; (4) vehicle damage estimates; (5) mechanical evaluation; (6) inspection of the scene; and (7) other matters required by JAGMAN. On the other hand, an investigation of a shipboard casualty or the loss of a piece of equipment could involve merely the calling and examination of material witnesses. The IO may use any method of investigation he or she finds most efficient and effective. Relevant information may be obtained from witnesses by personal interview, correspondence, telephone inquiry, or other means. One of the principal advantages of an investigation not requiring a hearing is that the interviewing of witnesses may be done at different times and places, rather than at a formal hearing.

The IO is not bound by formal rules of evidence and may collect, consider, and include in the record any matter relevant to the inquiry that a person of average caution would consider to be believable or authentic. The IO must authenticate real and documentary items and enclose legible reproductions in the investigative report, with certification of correctness of copies or statements of authenticity. The IO may not speculate on the causes of an incident; however, inferences may be drawn from the evidence gathered to determine the likely course of conductor chain of events that occurred. In most cases, it is inappropriate for the IO to speculate on the thought process of an individual that resulted in a certain course of conduct. As stated previously, the IO is not bound by the formal rules of evidence; however, there are certain things that cannot be combined with an investigative report. NCIS Investigations. An NCIS investigation consists of a narrative summary portion (called the Report of Investigation), where the participating agents detail the steps taken in the investigation and enclosures. The IO is forbidden from including the narrative summary portion of the NCIS investigation in the JAGMAN investigation; however, the enclosures, which frequently comprise the bulk of an NCIS investigation, can be used. The JAGMAN investigation should not interfere with the completion of the NCIS investigation; therefore, it is advisable that the IO wait until NCIS completes its investigation before obtaining a copy for use of the statements gathered by NCIS. Aircraft Mishap Investigative Report. Aircraft accidents are investigated by one or more investigative bodies under existing instructions and legal requirements. For the sole purpose of safety and accident prevention, the Chief of Naval Operations (CNO) issues special instructions for the conduct, analysis, 13-7

and review of investigations of aircraft mishaps. These investigations are known as Aircraft Mishap Investigation Reports (AMIRs). Because these investigations are directed toward safety problems, confidentiality is essential in order to allow personnel to be honest when giving statements. Therefore, a statement obtained in an AMIR is not available to the IO from any official source. IOs from both the aircraft safety investigation and the JAGMAN investigation, however, should have equal access to all real evidence and have separate opportunities to question and obtain statements from all witnesses. Other Mishap Investigation Reports. For the reasons specified previously, these mishap investigation reports cannot be included in JAGMAN investigations. Inspector General Reports . These reports cannot be included in JAGMAN investigations. Polygraph Examinations. Neither polygraph reports nor their results should be included in the JAGMAN investigative report; however, if essential for a complete understanding of the incident, the location of the polygraph report should be cross-referenced in the report. Medical Quality Assurance Investigations. A naval hospital will conduct its own investigation (much the same as the AMIR). Confidentiality is essential here also. Therefore, statements obtained in a medical quality assurance investigation cannot be used in a JAGMAN investigation. Photographs (JAGMAN 0207b[4]) Photographs, records, operating logs, pertinent directives, watch lists, and pieces of damaged equipment are examples of evidence that the IO may have to identify, accumulate, and evaluate. To the extent consistent with mission requirements, the CA will make sure all evidence is properly preserved and safeguarded until the investigation is complete and all relevant actions have been taken. Photographs and videotapes that have sufficient clarity to depict actual conditions are invaluable as evidence. Digital photographs and Polaroid prints offer instant review to make sure the desired picture is obtained. Photographs and videos should be taken from two or more angles, using a scale or ruler to show dimensions. In cases of personal injury or death, photographs and videos that portray the results of bodily injury should be included only if they contribute to the usefulness of the investigation. Lurid or morbid photographs and videos that serve no useful purpose should not be taken. Sketches instead of or in conjunction with photographs or videos provide valuable additional information. Insignificant items can be omitted in sketching, providing a more uncluttered view of the scene. Where dimensions are critical but may be distorted by camera perspective, accurate sketches can be more valuable. Sketches should be drawn to scale, preferably on graph paper. They can also be used as a layout to orient numerous photos and measurements. Carefully handle pieces or parts of equipment and material to make sure this physical evidence is not destroyed. If attaching real evidence to the report is inappropriate, preserve it in a safe place under proper chain of custody—reflecting its location in the report of investigation. Tag each item with a full d escription of its relationship to the accident. If it is to be sent to a laboratory for analysis, package it with care. Accompany the item(s) with a photo or sketch showing the “as found” location and condition. Make verbatim copies of relevant operating logs, records, directives, memos, medical reports, police or shore patrol reports, motor vehicle accident reports, and other similar documents. To assure exactness, reproduce by mechanical or photographic means if at all possible. Check copies for clarity and legibility and examine closely for obvious erasures and markovers that might not show up when reproduced. 13-8

If the IO observes an item and gains relevant sense impressions (noise, texture, smells, or any other impression not adequately portrayed by photograph, sketch, or map), those impressions should be recorded and included as an enclosure to the report. Witnesses (JAGMAN 0207c) The best method for examining a witness depends on the witness and the complexity of the incident. The most common method used by IOs is the informal interview. Whatever method is employed, however, the witness’ statement should be reduced to writing and signed by the witness whenever possible. Sworn statements may be taken unless the appointing order directs otherwise. A sworn statement is considered more desirable than an unsworn statement since it adds to the reliability of the statement and can expedite subsequent action (such as pretrial investigations). The statement should be dated and should properly identify the person making the statement; for example, a service member by full name, grade, service, and duty station; a civilian by full name, title, business or profession, and residence. If necessary, the IO can certify that the statement is an accurate summary, or verbatim transcript, of oral statements made by the witness. To make sure all relevant information is obtained when examining a witness, the IO should use the appointing order and the requirements in JAGMAN as a checklist. In addition to covering the full scope of the investigation requirements, witness statements should be as factual in content as possible. Vague opinions (such as drunk a few beers, and pretty fast) are of little value to the reviewing authority who is trying to evaluate the record. The IO should be able to separate conclusions from observations; therefore, when a witness makes a vague statement, try to pin down the actual facts. For example, instead of accepting the witness’ opinion that a person was pretty drunk, the IO should ask the kind of questions that go to supporting that kind of opinion. For example, (1) How long did you observe the person? (2) Can you describe the clarity of speech? (3) Did you observe him walk? (4) What was the condition of his eyes? (5) What was he drinking? (6) How much was he drinking? and (7) Over what period of time? In many instances, limitations on availability of witnesses will prevent the IO from obtaining a written, signed statement in the previous manner. When this happens, an IO may take testimony or collect evidence in any fair manner he or she chooses. Unavailable witnesses may be examined by mail or by telephone. If the telephone inquiry method is used, the IO should prepare a written memorandum of the call, identifying the person by name, rank, Armed Force, and duty station (if a service member) or by name, address, and occupation (if a civilian). The memorandum should state the substance of the conversation, the time and date it took place, and any rights or warnings provided. Communications with the CA If at any time during the investigation it should appear from the evidence presented or otherwise, that the CA might consider it advisable to enlarge, restrict, or otherwise modify the scope of the inquiry or to change in any respect any instruction provided in the appointing order, an oral or written report should be made to the CA. The CA may take any such action on this report deemed necessary. There is no requirement that such communications with the CA be included in the report or the record of the investigation. Investigative Report (JAGMAN 0208) The investigative report, submitted in letter form, consists of the following items:  A preliminary statement  Findings of fact  Opinions 13-9

 Recommendations  Enclosures Preliminary Statement The purpose of the preliminary statement is to inform the convening and reviewing authorities that all reasonably available evidence was collected and that the directives of the CA have been met. The preliminary statement should refer to the appointing order and set forth the following information:  The nature of the investigation  Any limited participation by a member and/or the name of any individual who assisted and the name and organization of any judge advocate general who assisted  Any difficulties encountered in the investigation and the reasons for any delay  If the evidence in the enclosures is in any way contradictory, a factual determination in the findings of fact section along with an explanation of the basis for that determination (this explanation should be reserved for material facts)  Any failure to advise individuals of their rights  The fact that all social security numbers were obtained from official sources  An attorney work product statement when a claim, or litigation by or against the United States, is reasonably possible  Any other information necessary for a complete understanding of the case Do not include a synopsis of facts, recommendations, or opinions in the preliminary statement. These should appear in the pertinent sections of the investigative report. It is not necessary for the IO to provide an outline of the method used to obtain the evidence contained in the report. A preliminary statement does not eliminate the necessity for making findings of fact. Even though the subject line and preliminary statement may talk about the death of a person in a car accident, findings of fact must describe the car, time, place of accident, identity of person, and other relevant information. Findings of Fact Findings of fact must be as specific as possible as to times, places, persons, and events. Each fact is made as a separate finding. Each fact must be supported by testimony of a witness, statement of the IO, documentary evidence, or real evidence attached to the investigative report as an enclosure. Also, each enclosure on which the fact is based must be referenced. For example, the IO may not state, “The car ran over Seaman Doe’s foot,” without a supporting enclosure. He or she may, however, have Doe execute a statement such as, “The car ran over my foot.” Include this statement as an enclosure and, in the findings of fact, state, “The car ran over Seaman Doe’s foot,” referencing enclosure (X). When read together, the findings of fact should tell the whole story of the incident without requiring reference back to the enclosures. The IO may only make findings of fact that are supported by a preponderance of evidence. A preponderance is created when the evidence as a whole shows that the fact sought to be proved is more probable than not. Weight of evidence in establishing a particular fact is not to be determined by the sheer number of witnesses or volume of evidence, but depends upon the effect of the evidence in inducing belief that a particular fact is true. In order that the acts of a deceased member may have caused harm and/or loss of life, including his or her own, through intentional acts, findings of fact relating to those issues must be established by clear and convincing evidence. Clear and convincing means a degree of proof beyond the preponderance of evidence discussed earlier. It is proof that should (1) leave no reasonable doubt in 13-10

the minds of those considering the facts and (2) create a firm belief or conviction. It is that degree of proof that is intermediate, being more than preponderance, but not reaching the extent of certainty as beyond any reasonable doubt. If the evidence is in any way contradictory, the IO still must make a factual determination in the findings of fact section. The following problem should make this clear. Problem. The enclosures in an investigation reveal the following information. Mr. Doe states he had seen a vehicle speeding by him at 90 mph; he was almost hit by the car; he does not own a car, is 80 years old, and has not driven since 1945. Mr. Hatch, an off-duty police officer, states that, as the car passed him, he glanced at his speedometer and he was traveling 35 mph; he estimates the speed of the other car at 45 mph. The police report reveals that the car left only 7 feet of skid marks on dry, smooth, asphalt pavement before stopping. How should the IO record this information? Solution. The IO should note the conflicting account in the preliminary statement as follows: “Two conflicting accounts of the speed of the vehicle in question appear in witness statements, but only encl (x), the statement of Mr. Hatch, is accepted as fact because of his experience, ability to observe, and emotional detachment from the situation.” Findings of fact should reflect only the IO’s evaluation of the Fact: “That the vehicle left skid marks of 7 feet in length in an attempt to avoid the collision (encl [x]); “That the skid marks were made on a dry, smooth, asphalt surface (encl [y]); and “That the speed of the vehicle was 45 mph at the time brakes were applied (encl [z]).” In some situations, it may not be necessary to show a discrepancy in the preliminary statement. In other situations, it may be impossible to find a particular fact. If, in the opinion of the IO, the evidence does not support any particular fact, this difficulty should be properly noted in the preliminary statement as follows: “The evidence gathered in the forms of encls (x) and (y) does not support a finding of fact as to the . . . and, hence, none is expressed.” Only rarely will the conflict in evidence or the absence of it prevent the IO from making a finding of fact in a particular area. Thus, this should not be used as a way for the IO— who is either unwilling to evaluate the facts or too lazy to gather the necessary evidence—to make the required findings of fact. Opinions Opinions are reasonable evaluations, inferences, or conclusions based on the facts. Each opinion must reference the findings of fact supporting it. In certain types of investigations, the CA will require the IO to make certain opinions. Recommendations Recommendations are proposals derived from the opinions expressed, made when directed by the CA, and may be specific or general in nature. If corrective action is recommended, the recommendation should be as specific as possible. Disciplinary action is an area commonly addressed by the recommendations. If trial by court-martial is recommended, the IO submits a signed, sworn charge sheet as an enclosure to the investigative report. Unless specifically directed by proper authority, an IO must not notify an accused of the charges. If a punitive letter of reprimand or admonition is recommended, the IO will prepare a draft of the recommended letter and submit it with the investigative report. If a non-punitive letter is recommended, a draft is not included in the investigation, but should be forwarded to the appropriate authority separately for issuance. If an award is recommended, the IO should draft the appropriate citation and include it as an enclosure. 13-11

Enclosures The first enclosure is either the signed written appointing order and any modifications or the signed written confirmation of an oral or message appointing order. Include any requests for extensions of time as enclosures, in addition to letters granting or denying such requests. JAGMAN requires the IO to properly identify all persons involved in the incident under investigation with complete name, grade or title, service or occupation, and station or residence. The list of enclosures is a suggested place for ensuring compliance with that section. Enclosures are listed in the order referenced in the investigative report. Separately number and completely identify each enclosure. Make sure each statement, affidavit, transcript of testimony, photograph, map, chart, document, or other exhibit is a separate enclosure. If the IO’s personal observations provide the basis for any finding of fact, a signed memorandum detailing those observations should be attached as an enclosure. A Privacy Act statement for each party or witness from whom personal information was obtained as an attachment to the individual’s statement should also be included as an exhibit. The signature of the IO on the investigative report serves to authenticate all the enclosures. Figure 13-5 is an example of a completed JAGMAN investigative report (without enclosures). 13-12

Figure 13-5A — Sample JAGMAN Investigation. 13-13

Figure 13-5B — Sample JAGMAN Investigation.

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Figure 13-5C — Sample JAGMAN Investigation. Classification of Report Because of the wide circulation of JAGMAN investigative reports, classified information should be omitted unless inclusion is essential. When included, however, the investigative report is assigned the classification of the highest subject matter contained in it. Encrypted versions of messages are not included or attached to investigative reports where the content or substance of such message is divulged. To assist in the processing of requests for release of investigations and to simplify handling and storage, declassify enclosures whenever possible. If the information in question cannot be declassified, but contributes nothing to the report, consider removing the enclosure from the investigation with notification in the forwarding endorsement. Action by the Convening and Reviewing Authorities The IO submits the JAGMAN investigative report to the CA who reviews it and transmits it by endorsement to the appropriate superior officer. The endorsement forwards the record setting forth 13-15

appropriate comments, recording approval or disapproval, in whole or in part, of the record of proceedings, findings, opinions, and recommendations. If the CA finds the investigative report incomplete or in error, he shall return the report for further inquiry or corrective action noting any incomplete, ambiguous, or erroneous action of the IO. In line of duty/misconduct investigation, the CA is required to specifically approve or disapprove the line of duty/misconduct opinion. This is accomplished as shown in paragraph 2 of Figure 13-6. If the CA corrects, adds, or disapproves findings of fact, opinions, or recommendation, the following language would be added in the endorsement: The findings of fact are hereby modified as follows:  The following additional findings of fact are added: (numbers start after the last findings of fact in the basic investigation).  Opinion ___ in the basic correspondence is not substantiated by the findings of fact because __________ and is therefore either disapproved or modified to read as follows: __________________. The following additional opinions are added: (numbers start after the last opinion in the basic investigation).  Recommendation ___ is not appropriate for action at this command; however, a copy of this investigation is being furnished to __________________ for such action as deemed appropriate.  Additional recommendations: (numbers start after the last recommendation in the basic investigation).  The action recommended in recommendation ____ has been accomplished by (has been forwarded to for action). If corrective action had been taken on the investigation, paragraph 4 of Figure 13-6 would read: Subject to the foregoing remarks, the basic proceedings, findings of fact, opinions, and recommendations of the investigating officer are approved. 13-16

Figure 13-6 — First Endorsement of JAGMAN Investigative Report. 13-17

Disciplinary Action Whenever punitive or nonpunitive disciplinary action is contemplated or taken respecting an individual as a result of the incident under inquiry, the action will be noted in the endorsement of the CA. Disciplinary action should be taken in a timely manner and should not await the concurrence of higher authority. Copies and Forwarding Send one complete copy of the investigation with the original for each intermediate reviewing authority and an additional copy for JAG. In cases involving death or injury to service members, OJAG receives the original and three copies. When certain types of incidents are investigated, send advance copies of the investigative report as soon as possible. Investigations requiring advance copies include the following:  Admiralty cases  Collisions  Loss or stranding of a ship  Postal losses  Serious incidents  Deaths/serious inquiries  Material property damages  Claims investigations In all cases where it is appropriate to send an advance copy of an investigation to OJAG, the advance copy will be sent by an officer exercising general court-martial jurisdiction (OEGCMJ) and will include that officer’s endorsement. Releasing Investigations Convening and reviewing authorities are not authorized to release JAGMAN investigations. The General Court-Martial Convening Authority (GCMCA) to whom the report is forwarded is ultimately the release authority. The CNO (N09N) is the release authority for investigations involving classified information and OJAG is the release authority for all other JAGMAN investigations. The other types of administrative investigations conducted are the court of inquiry and the investigation required to conduct a hearing. As stated earlier, procedurally there are only two types. Let’s look at the second type of administrative investigations now. Courts of Inquiry and Investigations Required to Conduct A Hearing Other than conducting a hearing, the common thread that runs between a court of inquiry and an investigation required to conduct a hearing is the concept of parties. Parties A party is a person subject to the UCMJ who has properly been designated as such in connection with a court of inquiry or an investigation required to conduct a hearing whose conduct is the subject of the inquiry or who has a direct interest in the inquiry. Upon request, an employee of the Department of Defense (DoD ) having a direct interest in the subject of the inquiry must be designated as a party. Designation as a party affords that individual a hearing on possible adverse information concerning him or her. 13-18

A person’s conduct or performance is subject to inquiry when that person is involved in the incident under investigation in such a way that disciplinary action may follow, that rights or privileges may be adversely affected, or that personal reputation or professional standing may be jeopardized. A person has a direct interest in the subject of inquiry when (1) the findings, opinions, or recommendations may, in view of his or her relation to the incident or circumstances under investigation, reflect questionable or unsatisfactory conduct or performance of duty or (2) the findings, opinions, or recommendations may relate to a matter over which the person has a duty or a right to exercise control. The CA of the court of inquiry or investigation required to conduct a hearing may designate parties, or the fact-finding body may be expressly authorized by the CA to designate parties. A person designated as a party before a court of inquiry or an investigation required to conduct a hearing has the following rights:  To be given due notice of such designation  To be present during the proceedings, except when the investigation is cleared for deliberations  To be represented by counsel  To be informed of the purpose of the investigation and be provided with a copy of the appointing order  To examine and object to the introduction of physical and documentary evidence and written statements  To object to the testimony of witnesses and to cross-examine witnesses other than his or her own  To request that the court of inquiry or investigation obtain documents and testimony of witnesses, or pursue additional areas of inquiry  To introduce evidence  To testify at his or her own request, but not be called as a witness  To refuse to incriminate himself or herself and, if accused or suspected of an offense, to be informed of the nature of the accusation and advised that no statement regarding the offense that he or she is accused or suspected is required, and that any statement made by him or her may be used as evidence against him or her in a trial by court-martial  To make a voluntary statement, oral or written, sworn or unsworn, to be included in the record of proceedings  To make an argument at the conclusion of presentation of evidence  To be properly advised concerning the Privacy Act  To challenge members of the court of inquiry and the IO or, when assigned, the president and any member of the investigation required to conduct a hearing for cause Figure 13-7 illustrates the circumstances under which particular fact-finding bodies may designate parties as well as who may be designated (military and/or civilian personnel). 13-19

Figure 13-7 — Chart Showing Circumstances under which Particular Fact-Finding Bodies may Designate Parties. Court of Inquiry (JAGINST 5830.1[series]) The court of inquiry is the traditional means by which serious military incidents have been investigated. Originally adopted by the British Army, it has remained in its present form with only slight modifications since the adoption of the Articles of War of 1786. A court of inquiry is not a court in the sense of the term used today; rather, it is a board of senior officers charged with searching out, developing, assembling, analyzing, and recording all available information about the incident under investigation. When directed by the CA, the court will offer opinions and recommendations about an incident. The court is convened by any person authorized to convene a GCM or by any person designated by the Secretary of the Navy (SECNAV). It consists of three or more commissioned officers. When practical, the senior member who is the president of the court should be a least an O-4. All members should also be senior to any person whose conduct is subject to inquiry. Legal counsel, certified under Article 27(b), UCMJ, and sworn under Article 42(a), UCMJ, appointed for the court and under the direct supervision of the president of the court, assists in matters of law, presenting evidence, and in keeping and preparing the record. Counsel does not perform as a prosecutor, but must make sure all evidence is presented to the court of inquiry. 13-20

The court is convened by a written appointing order, the contents of which are much the same as those discussed for fact-finding bodies not required to conduct a hearing. The required contents, with an example, can be found in JAGINST 5830.1(series), enclosure (1). All testimony is under oath (except for a person designated as a party who makes an unsworn statement) and transcribed verbatim. Using a formal hearing procedure, witnesses and evidence are presented in the following order after opening statements are made: counsel for the court; a party; counsel for the court in rebuttal; and, subsequently as requested by the court. After testimony and statement by the parties, if any, counsel for the court and counsel for the parties may present arguments. Although a court of inquiry uses a formal hearing procedure, it is administrative and not judicial. Therefore, as in any other administrative fact-finding body, the Military Rules of Evidence (Mil.R.Evid.) will not be followed, except for (1) 301, self-incrimination, (2) 302, mental examination, (3) 303, degrading questions, (4) 501-504, dealing with privileges, (5) 505, classified information, (6) 506, government information other than classified information, and (7) 507, informants. A court of inquiry has the power to subpoena witnesses who may be summoned to appear and testify before the court the same as at trial by court-martial. Investigation Required to Conduct a Hearing The investigation required to conduct a hearing is intended to be an intermediate step between an investigation not requiring a hearing and a court of inquiry. Such investigations are used, for example, when a hearing with sworn testimony is desired or designation of parties may be required, but only a single IO is necessary to conduct the hearing. The principal characteristics of an investigation required to conduct a hearing include the following:  The investigation is convened by any person authorized to convene a general court-martial.  It consists of one or more commissioned officers. The investigation should normally be composed of a single officer; however, if multiple members are considered desirable, a court of inquiry should be considered. Usually, it consists of one commissioned officer, but a Department of the Navy (DON) civilian employee may be used if appropriate. The IO should be senior to any designated party and at least an O-4 or GS-13. It may consist of two or more commissioned officers with the senior member, who will be the president of the board, at least an O-4. If appropriate, warrant officers, senior enlisted, or DON civilian employees may be assigned as members, in addition to at least one commissioned officer. No member of the board should be junior in rank to any person whose conduct or performance of duty is subject to inquiry. Legal counsel should be appointed for the proceedings, with duties and requirements identical to those for a court of inquiry. The investigation is convened by written appointing order. The required contents, with an example, can be found in JAGINST 5830.1 (series) encl osure (1). All testimony is under oath and all proceedings are transcribed verbatim. A formal hearing procedure, similar to the court of inquiry is used. The CA may designate those persons whose conduct is subject to inquiry or who have a direct interest in the subject inquiry as parties in the convening order. The CA may authorize the fact-finding body to designate parties during the proceedings. Unless convened to investigate a claim under Article 139, UCMJ, and JAGMAN, Chapter II, an investigation does not possess the power to subpoena civilian witnesses. Uses of the Record of Investigation If an individual is accorded the rights of a party with respect to the act or omission under investigation, punishment may be imposed without further proceedings. The individual may, however, submit any 13-21

matter in defense, extenuation, or mitigation. If an individual has not been accorded the rights of a party, a hearing conducted according to paragraph 4 of Part V, Manual for Courts-Martial (MCM) (series), must be conducted before punishment is imposed. In cases where a GCM is contemplated, it is sometimes possible to use the record of a court of inquiry instead of a formal pretrial investigation of the offenses. If a court of inquiry is used in place of an Article 32, UCMJ, investigation, the accused can demand to recall witnesses for further cross- examination and to offer any new evidence on his or her own behalf. Normally, the convening of a separate Article 32, UCMJ, investigation is the most efficient method for bringing an accused to trial. Sworn testimony contained in the record of proceedings of a court of inquiry or investigation required to conduct a hearing before which an accused was not designated as a party may not be received in evidence against the accused unless that testimony is admissible independently of the provisions of Article 50, UCMJ. A party is entitled to a copy of the record of an Article 32, UCMJ, pretrial investigation where trial by GCM has been ordered, subject to the regulations applicable to classified material. If a letter of censure or other nonjudicial punishment (NJP) is imposed, the party upon whom it was imposed has a right to have access to a copy of the record in order to appeal. SELECTION OF FACT-FINDING BODIES Deciding which type of fact-finding body to convene depends upon the purpose of the inquiry, the relative seriousness of the subject under inquiry, the complexity of the factual issues involved, the time allotted for completion of the investigation, and the nature and extent of powers required to conduct the investigation. The type of fact-finding body selected is left to the judgment and discretion of the officer in command. Before convening an investigation, the CA must consider the powers the fact-finding body will require and the desirability of designating parties. If the subject of the inquiry involves disputed issues of fact and a risk of substantial injustice if an individual is not afforded the rights of a party, a court of inquiry or an investigation required to conduct a hearing should be ordered. If the ability to subpoena witnesses is necessary, a court of inquiry should be convened. If the subject of the investigation is a major incident, a court of inquiry should be convened. For less serious cases, an investigation not requiring a hearing will normally be adequate. Section A-2-a of the JAGMAN describes a major incident as “An extraordinary incident occurring during the course of official duties resulting in (1) multiple deaths, (2) substantial property loss, or (3) substantial harm to the environment where the circumstances suggest a significant departure from the expected level of professionalism, leadership, judgment, communication, state of material readiness, or other relevant standard.” These cases are often accompanied by national public/press interest and significant congressional attention, as well as having the potential of undermining public confidence in the naval service. It may be apparent when first reported that the case is a major incident, or it may emerge as additional facts become known. Notwithstanding the fact that a death case may be a major incident as defined, the circumstances surrounding the death or resulting media attention may warrant the convening of a court of inquiry or investigation required to conduct a hearing as the appropriate means of investigating the incident. The first flag or general officer exercising general court-martial convening authority over the incident or in the chain of command, or any superior flag or general officer, takes immediate control over the case as the CA. If the CA determines that an incident initially considered major is not, or that a court of inquiry is not warranted under the circumstances, those conclusions must be reported to the next flag or general officer in the chain of command before any other type of investigation is convened. Because investigating major incidents are sometimes complicated by the premature appointment of a board of inquiry or investigation required to conduct a hearing, the CA may wish to initially convene a one-officer investigation not required to conduct a hearing to immediately begin to collect and 13-22

preserve evidence and locate and interview witnesses. To decide which course of action to pursue, the CA should set a specific date for the IO to submit an interim oral report. Summaries of testimony or evidence developed by the IO may be used as an aid by any subsequent investigative body, and the initial IO maybe detailed to assist the fact-finding body. Courts of inquiry and investigations required to conduct a hearing are only used to investigate the most serious incidents. These incidents frequently have extraordinary media and congressional interests, and considerable pressure is often exerted to complete the investigations in a limited period of time. Because of the nature of these investigations, CAs are tasked with providing support for the investigations. Personnel assigned to support these investigations are under the command of the president of the court of inquiry or the IO in an investigation requiring a hearing. The investigation becomes the primary duty of all support personnel. The following types of support will be provided when appropriate:  Technical advisors  Court reporters  Interpreters  Evidence custodians  Security  Administrative support personnel  Public affairs officers  Messages Line of Duty/Misconduct Determinations To assist in the administration of naval personnel, the CO is required to inquire into certain cases of injury, disease, or death incurred by members of his or her command. When these inquiries are conducted, the CO is required to make what is referred to as line of duty/misconduct determinations. As in most matters, the type of inquiry and the degree of formality of the report will depend upon the circumstances of each case. Normally, the CO of the service member involved is responsible for making the determination as to the type of, and necessity for, inquiry required. If a service member is injured and admitted to a naval hospital, the CO of the naval hospital will, if no investigation has been ordered, report the matter to the local area coordinator or other comparable authority who will take action to cause an investigation to be conducted. The results of the inquiry and the subsequent line of duty/misconduct determination can affect several benefits and/or rights administered by the DON to which the injured party may be entitled. Some of these rights include the following:  Extension of enlistment  Longevity and retirement multiplier  Forfeiture of pay  Disability retirement and severance pay This report also may be made available to the Department of Veterans Affairs to assist them in making determinations concerning Veterans Administration benefits. 13-23

When Line of Duty/Misconduct Determinations are Required Findings concerning line of duty/misconduct must be made in every case where a member of the naval service incurs a disease or injury that (1) might result in permanent disability or (2) results in the physical inability to perform duty for a period exceeding 24 hours (as distinguished from a period of hospitalization for evaluation or observation). Opinions concerning line of duty are prohibited in death cases. Misconduct will not be attributed to a deceased member. If such an opinion has been made or recorded after the incurrence of an injury, but before death, the convening or reviewing authority will note the error and its lack of validity in the endorsement. Because Federal agencies must make determinations with respect to survivor benefits, all significant and relevant facts will be recorded in a timely manner when the command is required to investigate the death of a member. What Constitutes Line of Duty An injury or disease incurred by naval personnel while on active service is presumed to have been incurred in the line of duty unless there is clear and convincing evidence that it was incurred during one of the following situations:  While absent without leave, and such absence materially interfered with the performance of required military duties; generally speaking, absence in excess of 24 hours constitutes a material interference unless there is evidence to establish the contrary  While confined under sentence of a court-martial that included an unremitted dishonorable discharge  While confined under sentence of a civil court following conviction of an offense that is defined as a felony by the law of the jurisdiction where convicted  While avoiding duty by deserting the service  As a result of the member’s own misconduct as determined under the regulations What Constitutes Misconduct An injury or disease suffered by a member of the naval service is presumed not to be the result of his or her own misconduct unless there is clear and convincing evidence that (1) the injury was intentionally incurred or (2) the inquiry was the result of grossly negligent conduct that demonstrates a reckless disregard for the foreseeable and likely consequences. Foreseeability is defined as the reasonable anticipation of the danger created by a negligent act committed by a person of ordinary intelligence and prudence. Injury or disease from a course of conduct is foreseeable if, according to ordinary and usual experience, injury or disease is the probable result of that conduct. On the other hand, gross negligence is defined as a conscious and voluntary act, or omission, that is likely to result in grave injury of which the member is aware. It involves a willful, wanton, or reckless disregard for the life, safety, and well-being of self or others. Simple or ordinary negligence or carelessness, standing alone, does not constitute misconduct. The fact that the conduct violated a law, regulation, or order, or was engaged in while intoxicated, does not, of itself, constitute a basis for a determination of misconduct. Misconduct can never be in the line of duty. Thus, a finding that an injury was the result of the member’s own misconduct must be accompanied by a finding that the injury was incurred not in the line of duty. Accordingly, if a service member is properly performing his or her military duty and is injured as a result of that duty, a misconduct finding would be wrong since no military duty can require a service member to commit an act that would constitute misconduct. 13-24

Intoxication is a factor in many of the injuries in which misconduct is found and is often coupled with evidence of recklessness or disorderly conduct. Intoxication may be produced by alcohol, drugs, inhalation of fumes, gas, or vapor. In order for intoxication alone to be the basis for a misconduct finding, there must be a clear showing that the following three elements existed: 1. The member’s physical or mental faculties were impaired due to intoxication at the time of the injury 2. The extent of such impairment 3. The impairment was the proximate cause of the injury Proximate cause is conduct that, in a natural and continuous sequence unbroken by any efficient intervening cause, produces injury, and without which the result would have not occurred. Careful attention must be paid to the facts of each case, especially when the blood alcohol content (BAC) of the injured member is above that constituting a legal state of intoxication in the particular jurisdiction (normally between 0.08 and 0.10 percent BAC). A showing of a blood alcohol level of above .10 mg/dl will, in many cases, be sufficient to satisfy the first two elements; however, additional evidence should be sought in determining whether or not there existed any physical impairment that directly contributed to the injury of the service member. The investigation should include a description of the service member’s general appearance, along with information regarding whether the member staggered or otherwise displayed a lack of coordination, was belligerent or incoherent, or displayed slow reflexes or slurred speech. Inability to perform duty resulting from a disease that is directly attributable to a specific, prior, proximate, and related intemperate use of alcohol or habit-forming drugs is the result of misconduct and therefore, not in the line of duty. If a member unreasonably refuses to submit to medical, surgical, or dental treatment, any disability that proximately results from such refusal will be deemed to have been incurred as a result of the member’s own misconduct. Any disability resulting from venereal disease is the result of misconduct if the member has not complied with the regulations that require reporting and receiving treatment for such disease. A member may not be held responsible for his or her acts and their foreseeable consequences if, as the result of a mental defect, disease, or derangement, he or she was unable to comprehend the nature of such acts or to control his or her actions. In the absence of evidence to the contrary, it is presumed that all persons are mentally responsible for their acts. Because of the strong instinct for self-preservation, an unsuccessful, but bona fide, attempt to kill oneself creates a strong inference of lack of mental responsibility. In all cases of attempted suicide, evidence bearing on the mental condition of the injured person must be obtained. This includes all available evidence as to social background, actions, and moods immediately before the attempt, any troubles that might have motivated the incident, and any pertinent examination or counseling session. Self-inflicted injury not prompted by a serious intent to die is, at most, a suicide gesture and such injury, unless lack of mental responsibility is otherwise shown, is deemed to be incurred as a result of the member’s own misconduct. The mere act alone does not raise a question of mental responsibility because there is no intent to take one’s own life; the intent was to achieve some secondary gain. 13-25

Relationship between Misconduct and Line of Duty There are only three possible determinations for findings in a line of duty/misconduct determination. They include the following:  In line of duty, not due to member’s own misconduct.  Not in line of duty, not due to member’s own misconduct. This determination occurs when misconduct is not involved, but an injury or disease is contracted by a service member that falls within one of four other exceptions to the line of duty presumption (desertion; unauthorized absence [UA]; confinement as a result of civilian conviction; or confinement pursuant to sentence by a GCM that included an unremitted dishonorable discharge). Example: A service member has been UA for eight months and is injured while lawfully crossing a street. The injuries were not the result of negligence.  Not in line of duty, due to member’s own misconduct. A determination of misconduct always requires a determination of not in the line of duty. An adverse determination as to misconduct or line of duty is not a punitive measure. Disciplinary action, if warranted, is taken independently of any such determination. A favorable determination as to line of duty/misconduct does not prevent separate disciplinary action, nor is such a finding binding on any issue of guilt or innocence in any disciplinary proceeding. The loss of rights or benefits resulting from an adverse determination may be relevant and, at the request of the accused, admissible as a matter in extenuation and mitigation in a disciplinary proceeding. Recording Line of Duty/Misconduct Determinations The inquiry into, and findings concerning, injuries or disease can be recorded in one of three ways.  Health and dental record entries. Use health and dental records when the member’s physical inability to perform duty exceeds 24 hours and the medical representative and CO agree that the injury or disease is not likely to result in permanent disability and was incurred in the line of duty and not as a result of the member’s own misconduct.  Form reports. Use an injury report form (NAVJAG Form 5800.15) when all the following conditions are met: o In the opinion of the medical representative, as concurred by the CO, the injury or disease was incurred in the line of duty and not as a result of the member’s own misconduct. o In the opinion of the medical officer, a permanent or permanent partial disability will likely result. o A fact-finding body is not required under the JAG Manual and is not otherwise contemplated. In any case, even if a health and dental record entry would suffice, a form report may be made to OJAG if there appears to be any reason for maintaining a record in that office. Send the form report to OJAG via a GCM CA for review. Never use a form report when an injury is self-inflicted, either intentionally or accidentally, since a finding of misconduct often results in either case.  A fact-finding body must be convened, and the CO must make findings concerning misconduct and line of duty in any case that:  The injury was incurred under circumstances that suggest a finding of misconduct might result.  The injury was incurred under circumstances that suggest a finding of not in line of duty might result. 13-26

 There is a reasonable chance of permanent disability, and the CO considers the appointment of a fact-finding body the appropriate means to make sure an adequate official record is made concerning the circumstances surrounding the incident.  The injured party is a member of the Naval or Marine Corps Reserve, and the CO determines an investigation to be the appropriate means for recording the circumstances. Action Reviewing Authorities The CA must specifically comment on the line of duty/misconduct opinion and take one of the following actions:  The CA must approve, disapprove, or modify the opinion expressed by the fact-finding body by simply stating his or her conclusion in the endorsement.  If, upon review of the report or record, the CA believes the injury or disease was incurred not in line of duty and due to the member’s own misconduct, the member may be afforded an opportunity to submit any desired information. If provided the opportunity to submit additional information, the member will be advised that (1) no statement against his or her interest relating to the origin, incurrence, or aggravation of any disease or injury suffered need be made and (2) if the member is suspected of having committed an offense, he or she will be advised of his or her Article 31, UCMJ, rights. If the member elects not to provide further information, that election will be set forth in the reviewing authority’s endorsement. The CA should make sure appropriate time lost, enlistment extension, and similar entries are made in service and/or medical records before sending the report of investigation of an injury concluded to have been incurred not in the line of duty. In the event the not in the line of duty opinion is later disapproved by the OEGCMJ, corrective entries can be made at that time. Forwarding Unless the CA is empowered to convene GCMs, send the record or report to an OEGCMJ. This officer may take any action on the report that could have been taken by the CA. With respect to conclusions concerning misconduct and line of duty, he or she will indicate his or her approval, disapproval, or modification of such conclusion unless he or she returns the record for further inquiry. A copy of this action will be sent to the CO of the member concerned so that appropriate entries may be made in the service and medical records. Reviewing authorities subsequent to the OEGCMJ need neither comment nor record approval or disapproval of the prior actions concerning line of duty and misconduct. Investigative Requirements for Specific Incidents The IO should be aware of particular problem areas in line of duty/misconduct investigations. Examples of situations commonly encountered are listed in the following paragraphs, along with a listing of various facts that should be included in investigative reports. The examples are not intended to be comprehensive, nor do the listed factors purport to cover every fact situation that may arise. Speeding It is impossible to state categorically when excessive speed becomes gross negligence and requires a finding of misconduct. The investigative report should contain information about the type and condition of the road; the number and width of the lanes; the type of area (densely populated or rural); any hills or curves that played a part in the accident; the traffic conditions; the time of day and weather conditions; the posted speed limit in the area; the mechanical condition of the car (particularly the brakes and tires); and the prior driving experience of the member. The speed of the vehicle is also important; however, estimates of speed based solely upon physical evidence at the 13-27

scene of the crash, such as skid marks and damage to the vehicle, are somewhat conjectural unless corroborated by other evidence. Therefore, attempts should be made to secure estimates of speed from witnesses, passengers, and drivers. In this way, the post-accident estimates of the police may be corroborated. Falling Asleep at the Wheel Falling asleep at the wheel is one of the most common causes of accidents, but is one of the most difficult situations in which to establish misconduct. The act of falling asleep, in itself, does not constitute gross negligence; however, the act of driving while in a condition of such extreme fatigue or drowsiness that the driver must have been aware of the danger of falling asleep at the wheel may amount to such a reckless disregard of the consequences as to warrant a finding of gross negligence and misconduct. Before a finding of misconduct can be made, there must be clear and convincing evidence showing that the service member experienced premonitory symptoms of drowsiness that should have put the driver on notice of the imminent danger of falling asleep. This information should include how long the service member had been driving and how many miles the member had driven before the accident; the amount of sleep the member had before starting the trip; the member’s activities for the 24 hours before the injury; whether any momentary periods of drowsiness were experienced before finally falling asleep; and any evidence of drinking or intoxication. Passenger Misconduct

If a passenger knows or should know that the driver is unlikely to drive safely because of negligence, lack of sleep, recklessness, or intoxication, the passenger is guilty of misconduct upon voluntarily exposing himself or herself to the danger. The investigation should contain information showing whether the service member had an opportunity to leave the vehicle after the driver’s condition became apparent; whether the driver and passenger had been drinking together and how much each had to drink; and what action, if any, was taken by the passenger to have the driver drive more carefully. Also determine the operator’s driving experience; any signs of intoxication; whether the passenger noticed the driver was tired or exhibited any other symptoms; whether the passenger took any action to have the driver rest or to personally assume the driving responsibilities. Disorderly Conduct and Fighting Injuries incurred by a service member while voluntarily and wrongfully engaged in a fight or similar encounter, whether or not weapons were involved, are due to misconduct where they might reasonably have been expected to result directly from the fight and the service member is at least equally culpable with the adversary in starting or continuing the affair. Not all injuries resulting from fighting necessarily must be determined to have resulted from the member’s misconduct. For example, if an adversary employs unexpectedly violent methods or means, such as a dangerous weapon, a conclusion that the resulting injuries were not due to the member’s own misconduct could be appropriate. In investigating such incidents, you should determine (1) who instigated or provoked the fight and/or struck the first blow; (2) any history of prior altercations between the participants; (3) whether either participant was armed; (4) whether either participant attempted to terminate the fight; (5) the relative size and capabilities of the participants; and (6) the part that drinking, if any, played in the altercation. If there are inconsistent statements from witnesses about the incident, the IO should indicate in the report which witnesses the officer chose to believe in making the findings of fact and opinions. Intentionally Self-Inflicted Injuries Include any medical reports and opinions in the investigative report when the investigation concerns an intentionally self-inflicted injury. In these cases, the IO should primarily look for evidence, or lack 13-28

thereof, of a bona fide suicide intent. The investigative report should contain information about the following:  Whether the methods used to cause injury were likely to cause death under the circumstances  The service member’s expressed reasons for attempting suicide  Whether the service member took action to avoid being found before the injury as opposed to being certain he or she would be discovered and treated quickly  Whether the service member had threatened suicide before the incident under investigation  Statements of shipmates and friends about the member’s apparent state of mind on the date of the act Accidentally Self-Inflicted Injuries: Gunshot Wounds A form report should not be used when an injury results from an accidental self-inflicted gunshot wound because of the strict, high standard of care required in the use of firearms or other dangerous weapons. In cases of this kind, mere failure to take proper precautions to prevent a casualty normally constitutes simple negligence or carelessness and, therefore, does not justify a finding of misconduct. However, in the event the record clearly and convincingly shows that the service member has displayed a lack of care that amounts to gross negligence, taking into account the higher standard of care required of persons using and handling dangerous weapons, a finding of misconduct is appropriate. The IO’s report should include information about the following:  Whether the subject member was familiar with guns in general and with the gun in question  Whether the member was aware of the weapon’s safety features  Whether there were any defects in the weapon and whether the member knew of such defects  Whether the member knew the gun was loaded or had checked the chamber for its possible loaded condition  Whether the member had cocked the weapon  How the weapon was positioned in relation to the service member’s body and why it was placed in that position  The possible cause of the weapon’s discharge  The mental attitude of the handler, including any alcohol or drug involvement  Any intervening factors SUMMARY Your knowledge of the proper procedures involved with the conduct and preparation of the various types of JAGMAN investigations is an important aspect of your duties as a senior LN. Additional information concerning these investigations can be found in Chapter II of the JAGMAN and JAGINST 5890.1(series). Whenever you are involved with working on a JAGMAN investigation, you should take the time to review the applicable sections of the JAGMAN and JAGINST 5890.1(series) to make sure all procedures and any special requirements are followed. 13-29