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§§ 720.13-720.14 [Reserved]

§ 720.15 Request for delivery of personnel serving sentence of court-martial.

(a) General. The Interstate Agreement on Detainers Act (18 U.S.C.A. App.) makes the Federal Government a party to the Interstate agreement which 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 in another State, either at the prisoner's request or at the request of the State where charges are pending.

(b) Liaison with State and Federal officials. Upon request by either the prisoner or State or Federal authorities, the Director of the nearest naval legal service office or Marine Corps judge advocate, as appropriate shall effect liaison with the appropriate State or Federal officials and shall monitor and take action on all such requests. The agreement described in § 720.5 will be required as a condition precedent to delivery to the State authorities. While requests between federal authorities are not covered by the Act, the same rules shall generally apply except that no such agreement is required.

(c) Timeliness of delivery. After request has been made, a prisoner shall be released to State or Federal officials as soon as practicable (after the court-martial sentence is announced). If the sentence is not final, the accused must be given the opportunity to request or decline to request, in writing, to remain in military custody to aid in his court-martial appeal. Such request normally will be granted.

(d) Article V of the Detainers Act. Nothing in the Detainers Act generally or in Article V(e) specifically requires the automatic return of a military prisoner, delivered to the temporary custody of State or Federal officials and thereafter convicted by a civilian tribunal, to military authorities either prior to or after the execution of the civilian sentence where military authorities do not request such a return. Military authorities may request the return of a military prisoner delivered to civilian temporary custo

dy under the Act, and such prisoner should be returned upon completion of civilian prosecution. If such prosecution results in conviction and sentencing by the civilian tribunal, such civilian sentence shall not be served by a military prisoner (whose return prior to sentence has been requested by military authorities) until after completion of the court-martial sentence. If return prior to civilian sentence is not requested and is not otherwise effected, conviction in a civil tribunal interrupts the execution of the sentence of the court-martial. A military prisoner whose return after serving his civilian sentence is requested by military authorities shall be returned and be required to serve the remaining portion of the court-martial sentence. See 10 U.S.C. 814(b). However, nothing requires military authorities to request such a return even when a portion of the court-martial sentence may remain uncompleted. Where return is not to be requested, consideration should be given to the separation of the military prisoner under applicable directives or regulations.

(1 CFR 18.14, and Part 21, Subpart B) [41 FR 26861, June 30, 1976, as amended at 45 FR 8599, Feb. 8, 1980]

Subpart B-Service of Process and Subpoenas Upon Personnel of the Naval Establishment

§ 720.20 Service of process upon personnel.

(a) Within the jurisdiction. Commanding officers afloat and ashore are authorized to permit service of process of Federal, State, territorial, or local courts upon naval personnel or civilians located within their commands and within the jurisdiction of the court out of which the process issues. However, such service should not be allowed within the confines of the command until the permission of the commanding officer has first been obtained. Personnel serving aboard vessels located within the territorial waters of the State or territory out of which the process issues are considered within the jurisdiction of that State or territory for the purpose of service of process. The commanding

officer shall permit the service of process except in unusual cases where he concludes that compliance with the mandate of the process would seriously prejudice the public interest. Where practicable, the commanding officer shall require that the process be served in his presence, or in the presence of an officer designated by him. Where service of process by mail is sufficient, the process may be mailed to the person named therein. In all cases commanding officers will insure that the nature of the process is explained to the person concerned.

(b) Personnel beyond the jurisdiction of the court. (1) Where a person in the naval service, or a civilian, is beyond the jurisdiction of the court issuing the process, the commanding officer will permit service or delivery of the process under the same conditions as noted in paragraph (a) of this section for whatever legal effect it may have. At the same time the commanding officer or his designee will advise the person being served that he is not required to indicate acceptance of service, in writing or otherwise, although he may do so voluntarily. In most cases he should further advise the person concerned to consult legal counsel.

(2) Where process is forwarded to a commanding officer with the request that it be delivered to a person within his command, he may deliver it to the person named therein, provided such person voluntarily agrees to accept it. In such cases the commanding officer will insure that the serviceman or civilian concerned is informed that he is not required to accept service of the process but may do so voluntarily. The commanding officer is not required to act as a process server. When the person named in the process does not voluntarily accept the process, it should be returned with a notation that the person named therein refused to accept it.

(c) Service of process arising from official duties. (1) If the service of process involves a potential claim against the Government, see §§ 750.21(a) and (b) and 750.32 of this chapter. While the right to remove to Federal court under 28 U.S.C. 1442 and 1442a requires color of office, which is consid

ered to be more than simple scope of employment, this right must be fully explored in all situations where the outcome of the State court action may influence a claim or potential claim against the United States.

(2) Whenever a Government employee (as defined in § 750.31(a) of this chapter) is served with Federal or State court civil or criminal process or pleadings (including traffic tickets) arising from actions performed in the course of his official duties, he shall immediately deliver all process and pleadings served upon him to his commanding officer. The commanding officer shall thereupon ascertain the facts surrounding the incident and with the advice of a Navy or Marine Corps judge advocate, if one is reasonably available, take appropriate action in accordance with JAGINST 5822.2 of February 2, 1962, Subject: Civil suits against military or civilian personnel of the Department of the Navy resulting from the operation of motor vehicles while acting within the scope of their office or employment, and legal representation in other court proceedings. The Government employee will be advised concerning his right to remove civil or criminal proceedings from State to Federal court under 28 U.S.C. 1442 and 1442a, his rights under the Federal Driver's Act (28 U.S.C. 2679B), and the contents of JAGINST 5822.2.

(3) Whenever a military member or civilian employee of the Department of the Navy is served with any process because of his official position, the Judge Advocate General shall be notified by message or telephone. This notification shall be confirmed by a letter report by the nearest appropriate command. The letter report shall include the detailed facts which give rise to the action. For lawsuits filed in the U.S. District Court, Washington, D.C., the Air Force has been assigned responsibility for accepting service of process for the Navy. In habeas corpus cases, liaison with the U.S. attorney assigned to protect the Navy's interests will be maintained through the Judge Advocate General after the initial notification prescribed by section 1314 of the Manual of the Judge Advocate General.

(d) Service of process of foreign courts. (1) Usually, the question of the amenability of military personnel, civilian employees, and dependents of both stationed in a foreign country, to the service of process from courts of the host country will have been settled by an agreement between the United States and the foreign country concerned. (For example, in the countries of the signatory parties, amenability to service of civil process is governed by paragraphs 5(g) and 9 of Article VIII of the NATO Status of Forces Agreement, TIAS 2846). Where service of process on a person in the Department of the Navy is attempted within the command in a country with which the United States has no agreement on this subject, advice should be sought from the Judge Advocate General. Service of process when the United States Government or one of its agencies or instrumentalities is the named defendant may involve a situation where the doctrine of sovereign immunity will allow the service of process to be returned to the court through diplomatic channels. Service of process directed to an official of the United States, on the other hand, must always be processed in accordance with the applicable international agreement or treaty, whether or not the suit involves acts performed in the course of official duties. When the report required by section 1325 of the Manual of the Judge Advocate General is made, the Judge Advocate General will make arrangements through the Department of Justice for defense of a suit against the United States or an official acting within the scope of his official duties, or other appropriate arrangements, and will issue appropriate instructions.

(2) Usually, persons in the Department of the Navy are not required to accept service of process outside the geographic limits of the jurisdiction of the court from which the process issued. In such cases acceptance of the service is not compulsory, but service may be voluntarily accepted in accordance with paragraph (c) of this section. In exceptional cases where the United States has agreed that service of process will be accepted by persons in the Department of the Navy located

outside the geographic limits of the jurisdiction of the court from which the process issued, the provisions of the agreement and of paragraph (a), of this section, will govern.

(3) Under the laws of some countries (such as Sweden), service of process is effected by the document, in original or certified copy, being handed to the person for whom the service is intended. Service is considered to have taken place even if the person refuses to accept the legal document. If a commanding officer or other officer in the military service calls the serviceman to his office and personally hands him or attempts to hand him the document, service is considered to have been effected, permitting the court to proceed to judgment. Upon receipt of foreign process with a request that it be served upon a member of his command, a commanding officer shall notify the serviceman of the fact that a particular foreign court is attempting to serve process upon him and inform him that he may ignore the process or come to the office and reIceive it. If the serviceman chooses to ignore the service, the commanding officer will return the document to the embassy or consulate of the foreign country with the notation that the serviceman had been notified that the document was in the office of the commanding officer, but that that he chose to ignore it, and that no physiIcal offer of service had been made. The commanding officer will keep the Judge Advocate General advised of all requests for service of process from a foreign court and the details thereof.

(e) Leave or liberty to be granted persons served with process. In those cases where personnel are served with process, as noted in subsection a above, or accept service of process, as noted in paragraph (b) of this section, the commanding officer normally should grant leave or liberty to the person served in order to permit him to comply with the process; provided, such absence will not prejudice the best interests of the naval service.

(f) Report where service is not allowed. Where service of process is not permitted, a report of such refusal and the reasons therefor shall be forwarded by speed letter (telephone if condi

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nesses in State or local courts. Where military personnel or civilian employees are subpoenaed to appear as witnesses in State or local courts, and are served in the manner described under conditions set forth in § 720.20, the provisions of § 720.20(e) apply. If naval personnel are requested to appear as witnesses in State or local courts where the interests of the Federal Government are involved (e.g., Medical Care Recovery Act cases) the procedures described in section 1322(a) of the Manual of the Judge Advocate General may be followed.

(1 CFR 18.14, and Part 21, Subpart B)

[38 FR 6021, Mar. 6, 1973, as amended at 45 FR 8599, Feb. 8, 1980]

Subpart C-Production of Official Records

§ 720.30 Production of official records in response to court order.

(a) General. Where unclassified naval records are desired by or on behalf of litigants, the parties will be informed that the records desired, or certified copies thereof, may be obtained by forwarding to the Secretary of the Navy, Navy Department, Washington, D.C., or other custodian of the records, a court order calling for the particular records desired or copies thereof. Compliance with such court order will be effected by transmitting certified copies of the records to the clerk of the court out of which the process issues. If an original record is produced by a naval custodian, it will not be removed from the custody of the person producing it, but copies may be placed in evidence. Upon written request of all parties in interest or their respective attorneys, records which would be produced in response to a court order as set forth above may be furnished without court order except as noted in paragraphs (b) and

(c) of this section. Whenever compliance with a court order for production of Department of the Navy records is deemed inappropriate for any reason, such as when they contain privileged or classified information, the records and subpoena may be forwarded to the Secretary of the Navy (Judge Advocate General) for appropriate action, and the parties to the suit so notified.

(b) Records in the custody of National Personnel Records Center. Court orders, subpoenas duces tecum, and other legal documents demanding information from, or the production of, service or medical records in the custody of the National Personnel Records Center involving former (deceased or discharged) Navy and Marine Corps personnel shall be served upon the General Services Administration, 9700 Page Boulevard; St. Louis, MO 63132, rather than the Department of the Navy. In the following situations, the request shall be forwarded to the Secretary of the Navy (Judge Advocate General).

(1) When the United States (Department of the Navy) is one of the litigants.

(2) When the case involves a person or persons who are or have been senior officers within the Department of the Navy; and

(3) In other cases considered to be of special significance to the Judge Advocate General or the Secretary of the Navy.

(c) Exceptions. Where not in conflict with the foregoing restrictions relative to confidential matters, the production in Federal, State, territorial, or local courts of evidentiary material from investigations conducted pursuant to this Manual, and the service, employment, pay or medical records (including medical records of dependents) of persons in the naval service is authorized upon receipt of a court order, without procuring specific authority from the Secretary of the Navy. Where travel is involved, it must be without expense to the Government.

(d) Medical and other records of civilian employees. Production of medical certificates or other medical reports concerning civilian employees is controlled by the provisions of Execu

tive Order 10561, 19 FR 5963, as implemented by Federal Personnel Manual, chapter 294, and chapter 339.1-4 (reprinted in MANMED article 23255(6)). Records of civilian employees other than medical records may be produced upon receipt of a court order without procuring specific authority from the Secretary of the Navy, provided there is not involved any classified or otherwise confidential material such as loyalty or security records. Records relating to compensation benefits administered by the Bureau of Employees' Compensation may not be disclosed except upon the written approval of that Bureau (20 CFR 1.21). In case of doubt, the matter should be handled in accordance with the provisions of subsection a above. Where information is furnished hereunder in response to a court order, it is advisable that certified copies rather than originals be furnished and that, where original records are to be produced, the assistance of the U.S. Attorney or U.S. Marshal be requested so that custody of the records may be maintained.

§ 720.31 Production of official records in the absence of court order.

(a) General. Release of official records outside the Department of the Navy in the absence of a court order is governed by the Privacy Act (5 U.S.C. 552a) and the Freedom of Information Act (5 U.S.C. 552). The following sources pertain: SECNAVINST 5211.5 series (Privacy) and SECNAVINST 5720.42 series (Freedom of Information).

(b) Release of JAG Manual Investigations, Court-Martial Records, Articles 69 and 73 Petitions, and Article 138 Complaints of Wrongs. Except as provided in this section, only the Assistant Judge Advocate General (Civil Law) shall make determinations concerning the release of the records covered herein. Local record holders are reminded that the authority to release records does not include denial authority.

(1) JAG Manual Investigations (including enclosures). Any request for release outside the Department of the Navy shall be forwarded to the Assistant Judge Advocate General (Military

Law) for determination, except that Privacy Act requests for release shall be forwarded to the Assistant Judge Advocate General (Civil Law) for determination. Exception: Affirmative claims files (including Medical Care Recovery Act files) may be released by local holders to insurance companies to support claims; to civilian attorneys representing the injured party's and the government's interests; and to other components of the Department of Defense, without prior approval of the Judge Advocate General, provided the amount of the claims is within the monetary settlement authority of the releaser.

(2) Court-martial records and Articles 69 and 73 petitions. These are matters of public record and may be released by any local holder. Courtmartial records should be released only following proper authentication. (3) Article 138 Complaints of Wrongs. Forward as in b.1 above.

(c) Accounting for disclosures of records from systems of records. When records located in a "system of records" are released, the official responsible for releasing the records shall consult SECNAVINST 5211.5 series regarding the requirement that accountings of the disclosures be maintained. Appendix A-3-a of the Manual of the Judge Advocate General is recommended for this purpose. (1 CFR 18.14, and Part 21, Subpart B) [45 FR 8599, Feb. 8, 1980]

§ 720.32 Certificates of full faith and credit.

The Judge Advocate General, the Deputy Judge Advocate General, or any Assistant Judge Advocate General is authorized to execute certificates of full faith and credit certifying the signatures and authority of officers of the Department of the Navy.

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