rights of a party, the procedures shall be as prescribed in section 0101d.

(2) In cases where an adverse determination respecting the contracting or incurrence of a disease or injury in line of duty or as the result of misconduct is contemplated on the basis of the record of a court of inquiry or formal fact-finding body before which the person concerned was not designated a party or accorded the rights of a party, the procedures shall be as prescribed in section 0815.

(3) In cases where a general court-martial is contemplated respecting an accused, the record of a court of inquiry or formal fact-finding body before which the accused was not designated a party or accorded the rights of a party may not be used in lieu of a formal pretrial investigation of the offenses charged against the accused. See Article 32(c), UCMJ.

(4) In cases where charges have been brought against an accused before a court-martial, military commission, or other tribunal which is required fully to observe the rules of evidence as prescribed in the UCMJ and in chapter XXVII of the MCM, sworn testimony contained in the record of proceedings of a court of inquiry before which that accused was not designated a party or accorded the rights of a party may not be received in evidence by that courtmartial, military commission or tribunal unless such testimony is admissible independently of the provisions of Article 50, UCMJ.

h. Waiver of rights of a party. Waiver of rights listed in section 0304a which involve notice, information, or advice to be given a party (except regarding an offense of which accused or suspected), may be effected only by explicit statement on the record by party or his counsel. Advice as to the nature of any offense of which accused or suspected, advice as to the right to refrain from making any statement regarding such offense, and advice as to the possible use against him of any statement in a trial by court-martial may not be waived. See Article 31b, UCMJ. Any other right is conclusively waived by the party's failing to exercise it, unless he has made, upon the record, a request to exercise it and such request has been denied.

i. Right to a copy of the record. A party to an investigation is not entitled to a copy of the record or

any part thereof, unless the record is to be used as a pretrial investigation under Article 32, UCMJ and trial of the party by general court-martial has been ordered. Consideration should be given to conducting a separate pretrial investigation when the record or report of the investigation contains either classified material or any unclassified material which might be of assistance in the prosecution or support of a claim against the United States. If a letter of censure or other non-judicial punishment is imposed, see section 0101f (7) concerning the right of the individual concerned to have access to a copy of the record.

0305 WITNESSES

a. Calling witnesses. Although only courts of inquiry and boards convened for the redress of injuries to property (see Article 139, UCMJ and chapter X) have powers to subpoena witnesses, all administrative fact-finding bodies convened under these regulations may request civilian witnesses to attend, whether or not they are connected in any way with the naval service, and may request cognizant commanding officers to make members of the Armed Forces and persons employed by the Department of Defense available to testify. No fact-finding body is confined to any Federal reservation in its quest for relevant testimony.

b. Competency of witnesses. Any party or other person charged with an offense relating to the matter under investigation shall be a competent witness before a court of inquiry only at his own request. 18 USC 3481. A person is charged with an offense when he has been formally accused by indictment or information, or by the preferring of charges and specifications pursuant to Article 30, UCMJ. Subject to this statutory limitation, any party or other person, regardless of whether charged with or suspected of an offense, is competent as a witness before any formal or informal fact-finding body, and may be called whether or not he requests to be a witness.

c. Compulsory self-incrimination prohibited.

(1) No witness shall be compelled to incriminate himself or to answer any question the answer to which may tend to incriminate him; nor shall he be compelled to make any statement or produce evidence if the statement or evidence is not material to any issue under investigation and may tend to

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degrade him. See Article 31 (a) and (c), UCMJ; paragraph 150, MCM. The fact-finding body should advise an apparently uninformed witness of his right to decline to answer any question which might tend to incriminate him.

(2) If a person called as a witness before a court of inquiry or formal board of investigation is suspected of or is charged with an offense, he shall be informed of the nature of the offense and the subject matter of the inquiry. He shall also be advised that he does not have to make any statement or give any testimony regarding the offense of which he is suspected or accused and that any statement or testimony made by him may be used as evidence against him in any subsequent trial. Article 31 (b) UCMJ. After being so informed, the right to refrain from testifying regarding the offense of which he is suspected or charged must be claimed by the witness. Despite assertion of such a right, however, the witness may be questioned on matters other than the offense of which he is suspected or charged.

(3) If a person suspected or charged with an offense is required as a witness in connection with an informal investigation, the procedure set forth in 0606d(2) will be followed.

*d. Privacy Act compliance. When an individual is requested by a Government representative to supply personal information, it is mandatory that there be compliance with subsection (e)(3) of the Privacy Act of 1974 (5 U.S.C. § 552a) in accordance with section 0308 and Appendix A-3-a.

0306 WARNING REQUIRED BEFORE REQUESTING STATEMENTS REGARDING DISEASE OR INJURY

A member of the Armed Forces may not be required to sign a statement relating to the origin, incurrence, or aggravation of a disease or injury that he has. Any such statement against his interests, signed by a member, is invalid. 10 USC 1219. Any person in the Armed Forces, prior to being asked to sign any statement relating to the origin, incurrence, or aggravation of any disease or injury that he has suffered, shall be advised of his right not to sign such a statement.

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The spirit of this section will be violated if a person, in the course of a JAG Manual investigation, obtains the member's oral statements and reduces them to writing, unless the above advice was given first.

0307 WARNING WITNESSES

The fact-finding body in its discretion may direct witnesses who are subject to naval authority, not to discuss their testimony with other witnesses or persons who have no official interest in the matter until the investigation is completed. Other witnesses may be requested, in a similar manner, not to discuss their testimony. This warning may be given to ensure that the matter before the fact-finding body can be fairly heard and to eliminate the possibility that disclosures of the substance of the testimony may influence the testimony of witnesses still to be heard.

*0308 ADVICE REQUIRED BY THE PRIVACY ACT

a. Privacy Act statements for JAG Manual investigations and claims investigations. Pursuant SECNAVINST 5211.5 series and the Privacy Act of 1974 (5 U.S.C. § 552a), the following procedures shall be applicable to JAG Manual investigations [chapters II through X] and claims investigations [chapters XX through XXIV], including letter reports and form reports.

(1) Advice required. When any individual is requested by a person acting on the Government's behalf to supply personal information about himself in the course of a JAG Manual investigation or claims investigation, the person making the request shall first provide the individual, in duplicate, a Privacy Act statement containing the particular information prescribed in SECNAVINST 5211.5 series. The original is to be signed by the individual and appended to the record of the investigation, and the copy should be retained by the individual. If the information is requested in an interview or hearing, the Privacy Act statement should also be orally summarized and explained as necessary to ensure that the individual fully understands it. The requirement for a Privacy Act statement is cumulative to other

applicable warnings or advisements required by the provisions of the Manual, and warnings under Article 31, UCMJ, and related court decisions, where applicable.

(2) "Personal information" defined. Personal information is information about an individual that is intimate or private to the individual, as distinguished from information related solely to the individual's official functions. It ordinarily includes, for example, information pertaining to an individual's financial, family, social, and recreational affairs; his medical, educational, employment, or criminal history; or information that identifies, describes, or affords a basis for inferring personal characteristics, such as finger or voice prints or photographs. It ordinarily does not include such information as the time, place, and manner of, or reasons or authority for, an individual's execution or omission of acts directly related to the duties of his Federal employment or military assignment.

(3) Social Security numbers. An individual, even though a member or employee of the naval service, should not be requested to provide his social security number in connection with a JAG Manual investigation or claims investigation. This will obviate the need for giving the individual a social security number statement, which is generally required when an individual is requested to furnish his social security number, because JAG Manual investigations and claims investigations do not fall under the strict definition of "personnel," "finance," or "medical" records, as these terms are used in SECNAVINST 5211.5 series. The number can generally be obtained from other available records if necessary in a particular investigation.

(4) Privacy Act statement contents. Appendix A-3-a is format which is intended to include every item of information that would be required for a Privacy Act statement in connection with any JAG Manual investigation or claims investigation. It should be used as a basis for tailoring a specific Privacy Act statement appropriate to the particular purposes and subject matter of each investigation and the role of the particular party or witness in relation to the matter under investigation.

(5) Local forms. Locally-prepared forms utilizing the format in Appendix A-3-a are authorized. Copies of local forms for Privacy Act statements prepared for use in JAG Manual investigations shall be filed on a current basis with the Judge Advocate General (Code 21). Those prepared for use in claims investigations shall be filed with the Judge Advocate General (Code 14C).

b. Reviewing authorities

(1) It is essential that each investigative record. reflect that a good faith effort was made to comply with SECNAVINST 5211.5 series and the Privacy Act of 1974, and that the record contain the Privacy Act statement for each party or witness from whom personal information was obtained on or after 27 September 1975. Any indication of noncompliance shall be explained either in the preliminary statement the forwarding endorsements. The officer exercising general court-martial jurisdiction (or, in the case of a claims investigation, the appropriate officer designated as an adjudicating authority) has the responsibility to ensure that remedial action, as appropriate, is taken to rectify noncompliance indicated in the investigative record prior to forwarding the record to the Judge Advocate General.

or

(2) If there is a reasonable possibility that an individual's interests may be adversely affected by the outcome of the investigation and no Privacy Act statement, or a substantially defective Privacy Act statement, was given to that individual, remedial action is required. Such remedial action may be effected by sending a letter to the individual, via his commanding officer in the case of an active-duty member or currently-employed Navy civilian employee, or by certified mail (return receipt requested) in other cases, informing him that he was not fully advised of his rights under the Privacy Act before he provided personal information about himself to the JAG Manual or claims investigation. The letter shall also include:

(a) A sufficient Privacy Act statement;

(b) Advice that the individual may, within thirty days following the date of the letter, withdraw

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