member permissive orders authorizing attendance at the trial at no expense to the Government. Members are permitted to accept fees and mileage tendered.

(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 conditions warrant) to the Secretary of the Navy (Judge Advocate General) RCS JAG 5821-8.

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

[38 FR 6021, Mar. 6, 1973, as amended at 41 FR 26862, June 30, 1976, 45 FR 8599, Feb. 8, 1980; 48 FR 4466, Feb. 1, 1983]

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. See the provisions in

the Secretary of the Navy Instruction 5211.5 series which set forth the additional requirement that reasonable efforts be made to notify all individuals to whom the record pertains of (1) the disclosure, and (2) the nature of the information provided, when the court order has become a matter of public record and the record is contained in a system of records as defined in the Secretary of the Navy Instruction 5211.5 series. 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 one or more 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 when such records are not in a 'system of records' as defined by the Privacy Act (5 U.S.C. 552a) except as noted in paragraphs (b) and (c) of this section. In determining whether or not a record contained in a "system of records" will be furnished in response to a written request for that record, consideration shall be given to the provisions of the Secretary of the Navy Instruction 5720.42 series. If the record is in a "system of records," it may be produced upon written request of one or more parties in interest or their respective attorneys in the absence of a court order only if the individuals to whom the record pertains give written consent to the production or if the production is otherwise authorized under the Privacy Act and the Secretary of the Navy Instruction 5211.5 series. 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. Any release of classified information for civil court proceedings (whether civil or criminal in nature) must also be coordinated within the office of the Chief of Naval Operations (OP-009D) in accordance with the Chief of Naval Operations Instruction 5510.1 series.

(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 or officials 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 personal information, the release of which would result in a clearly unwarranted invasion of personal privacy, 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. When the request for production involves material related to claims in favor of the Government, notification should be made to the affirmative claims office at the naval legal service office having territorial responsibility in the area. 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 Executive 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 For-Official-Use-Only information, 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.

[38 FR 6021, Mar. 6, 1973, as amended at 48 FR 4466, Feb. 1, 1983]

§ 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 Advocates General (Civil Law) and (Military Law) shall make determinations concerning the release of the records covered herein if less than a release of the complete requested record will result. In all other instances the Deputy Assistant Judge Advocates General, who have cognizance of the record(s) in issue, may release such records. Local record holders are reminded that the authority to

release records does not necessarily 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.

(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 paragraph (b)(1) of this section.

(c) Affirmative claims files. Affirmative claims files (including Medical Care Recovery Act files), except to the extent that such files contain copies of reports of investigations prepared under the Manual of the Judge Advocate General, or classified or privileged information, 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 the prior approval of the Judge Advocate General, provided that the amount of the claim is within the monetary settlement authority of the releaser. When the request for production involves material related to claims in favor of the Government, notification should be made to the affirmative claims office at the naval legal service office having territorial responsibility for the area.

(d) 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, as amended at 48 FR 4466, Feb. 1, 1983]

721.7

governing

Related statutes and directives. 721.8 Responsibilities for action. 721.9 Personal financial disclosure.

721.10 Post employment restrictions. 721.11

Administrative enforcement of 18 U.S.C. 207.

721.12 Reporting of post-retirement employment.

721.13 Delegation of authority. 721.14 Reports and forms. 721.15 Digest of laws.

721.16 Submission and processing of reports of financial circumstances (SF-278 and DD Form 1555).

721.17 Procedures for administrative enforcement of post employment restrictions of 18 U.S.C. 207.

721.18 Bedrock standards of conduct for Department of the Navy personnel.

AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 133 and 5031; E.O. 11222, May 8, 1965; CFR Part 735; 32 CFR Part 40.

SOURCE: 50 FR 9000 Mar. 6, 1985, unless otherwise noted.

§ 721.1 Purpose.

Part 721 implements and supplements Pub. L. 95-521, as amended by Pub. L. 96-19 and Pub. L. 96-28; Part 40 of this title; E.O. 11222, 3 CFR, 1964-1965 Comp., p. 301; and 5 CFR Parts 734, 735, 737, and 738, by prescribing required standards of ethical conduct governing all personnel in the Department of the Navy, to place responsibility and accountability for ensuring compliance upon commanding officers and supervisors, to publish financial disclosure reporting require

ments and procedures applicable to certain naval personnel, to set forth conflict of interest statutes applicable to certain categories of both former and current naval personnel, and to promulgate bedrock standards of conduct as a concise statement of expected ethical behavior.

§ 721.2 [Reserved]

§ 721.3 Scope and effect.

(a) Applicability. The provisions of this Part apply to all naval personnel as defined in § 721.4(a). The provisions of § 721.6(k)(2) apply to all retired military naval personnel and members of Reserve components not on active duty. The provisions of § 721.7(a), §§ 721.10, and 721.11 apply to certain former naval personnel. The provisions of § 721.12 apply to all retired Regular officers.

(b) Violations. The bracketed portions of § 721.6 are regulatory general orders, apply to all naval personnel individually, and need no further implementation. A violation of these provisions is punishable in accordance with the Uniform Code of Military Justice for military personnel and is the basis for appropriate disciplinary procedures with respect to civilian employees. Noncompliance with other provisions of the instruction is expected to be corrected by timely administrative action.

§ 721.4 Definitions.

(a) Naval personnel. All Department of the Navy civilian officers and employees, active-duty officer and enlisted personnel (both Regular and Reserve), special Government employees, and personnel of nonappropriated fund instrumentalities.

(b) Department of Defense (DOD) components. The Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the joint, unified, and specified commands, the Defense agencies, and nonappropriated fund instrumentalities.

(c) Special Government employee. A person who is retained, designated, appointed or employed to perform, with or without compensation, not to exceed 130 days during any period of

365 consecutive days, temporary duties on either a full-time or intermittent basis. The term also includes a Reserve officer while on active duty solely for training for any length of time, one who is serving on active duty involuntarily for any length of time, and one who is serving voluntarily on extended active duty for 130 days or less. It does not include enlisted personnel.

(d) Gratuity. Any gift, favor, entertainment, hospitality, transportation, loan, any other tangible item, and any intangible benefit (for example, discounts, passes, and promotional vendor training) given or extended to or on behalf of naval personnel or their spouses, minor children or members of their households for which fair market value is not paid by the recipient or the U.S. Government.

(e) Appropriate supervisor. That superior within the chain of authority who is acquainted with the duties of the naval personnel concerned and can best determine the existence and effect of any conflict of interest of such personnel. Ordinarily, this will be the immediate superior of the person concerned. Each commanding officer and head of activity should ensure that all personnel are aware of the identity of their appropriate supervi

sonnel shall consult legal counsel or, if appropriate, the Designated Agency Ethics Official, a deputy ethics official or ethics counselor (hereafter collectively referred to as "ethics officials"; see paragraphs (a), (b), (g), and (h) of § 721.8) to ensure the proper and lawful conduct of naval programs and activities.

(b) Conduct prejudicial to the Government. Naval personnel shall avoid any action whether or not specifically prohibited by this instruction that might result in or reasonably be expected to create the appearance of:

(1) Using public office for private gain,

(2) Giving preferential treatment to any person or entity,

(3) Impeding Government efficiency or economy,

(4) Losing complete independence or impartiality,

(5) Making a Government decision outside official channels, or

(6) Adversely affecting the confidence of the public in the integrity of the Government.

(c) Standards of personal judgment. All naval personnel will adhere strictly to the standards of conduct and related requirements prescribed. In some instances, standards are imposed that require the exercise of personal judgment. Naval personnel must consider each such instance carefully and be prepared to account for the manner in which their judgment is exercised. This is particularly true in situations that involve acceptance of hospitality or favors from persons or entities who do or seek to do business with the Department of Defense.

(d) Dealings with business and industry representatives. Persons who represent the Government in business dealings with representatives of industry have positions of trust and grave responsibility that require them to observe the highest ethical standards. Practices that may be accepted in the private business world are not necessarily acceptable for naval personnel. Naval personnel will not allow themselves to be placed in a position in which a conflict of interest might arise or might justifiably be suspected. Such a conflict of interest may arise or appear to arise by reason of the ac

ceptance of gratuities or by any other action that could influence or reasonably be interpreted as influencing the strict impartiality that must prevail in all business relationships involving the Government. Strict impartiality is often particularly difficult to maintain when business relationships are allowed to become overly personal. Naval personnel should at all times ensure that persons doing business or attempting to do business with the Department of the Navy or who represent such entities are not permitted to ingratiate themselves to the extent that naval personnel hesitate to deny requests for special treatment made by such persons or otherwise to follow the rule of strict impartiality when dealing with such persons in their official capacities. Acceptance of gratuities (no matter how innocently tendered or received) from those who have or seek business dealings with the Department of the Navy may be a source of embarrassment to the Department and to the naval personnel involved, may affect the objective judgment of the recipient, and may impair public confidence in the integrity of business relations between the Department and industry. It is emphasized that prohibited conflicts and apparent conflicts of interest can sometimes arise even from relationships and transactions that the personnel concerned perceive as inconsequential. When in doubt, naval personnel will refrain from accepting gratuities, attending functions, or accepting other invitations of a hospitable nature.

(e) Preferential treatment. Special treatment must not be accorded to particular individuals or firms unless equivalent treatment is also accorded to other justifiably entitled individuals or firms.

(f) Acquiring conflicting financial interests. Notwithstanding that they may be required to submit reports of their personal financial circumstances, naval personnel must at all times avoid acquiring or retaining financial interests that would disqualify them from performing their assigned duties or responsibilities. Some of the more likely situations in which conflicts of interest might arise are where naval personnel have Government duties or