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lishments of the Government shall report by letter, telegram, or in person to the secretary of such department or head of the independent establishment or to the chief officer of the particular service to which detailed.
SEC. 2.271 Misconduct. The following actions or conduct shall constitute grounds for disciplinary action pursuant to these regulations: (a) wilful disobedience of the lawful orders of a superior officer, (b) negligence or carelessness in obeying orders, (c) excessive use of drugs or intoxicating liquors, (d) disorderly or immoral conduct tending to bring discredit upon the officer or upon the Seryice, or upon both, (e) financial irregularities, (f) use of language disrespectful of official superiors or other officers, (g) any publication or public statement impugning the professional competency or personal character of another officer, (h) waste of public property or knowingly permitting such waste, (i) conviction of a felony or an offense involving moral turpitude, (j) wilful submission of false information in application for appointment or in any proceeding of the Service, (k) abusive treatment of subordinate officers or employees, of patients or beneficiaries of the Service, or of members of the public in their dealings with the Service, (1) absence without leave unless excused for good cause, (m) violation of any regulation prescribed for the government of the Service.
Sec. 2.272 Summary punishment. The officer in charge may impose upon an officer subject to his authority the following punishment for misconduct during any period when the latter was so subject: (a) private reprimand; (b) suspension of privileges pending immediate report of such misconduct to, and instruction from, the Surgeon General. Any such action shall be entered on the Service record of the officer. Such entry shall include the date and nature of the offense and the action taken.
SEC. 2.273 Leave of absence during pendency of charges. An officer authorized to grant leave of absence shall not grant leave to an officer against whom charges are pending, but requests for leave at that time shall be referred to the Surgeon General for action.
SEC. 2.274 Grievances. If any officer shall consider himself aggrieved by another officer and fails to secure an adjustment of the matter to his satisfac
tion, he may report such fact in writing through the officer in charge to the Surgeon General.
Boards of Investigation SEC. 2.281 Order to appear before board; time limitations. When an officer is charged by his superior officer, or by any responsible person or persons, with conduct constituting a ground for disciplinary action under these regulations, he may be ordered to appear before a board of investigation, but no officer shall be so ordered to appear or punished for any offense connected with the Service committed more than one year before the issuance of such order. Any period during which an officer is outside the continental United States or in Alaska or any period during which discovery of the offense was prevented by the giving of false information by or in behalf of an officer shall not be counted as part of such one-year limitation.
SEC, 2.282 How convoked. A board of investigation may be ordered by the Administrator or by the Surgeon General. Such order shall include the time and place of assembly.
SEC. 2.283 Composition. The board shall consist wholly of commissioned officers of the Service and of not less than three members, who shall be appointed by the Administrator upon recommendation of the Surgeon General. The members of the board shall, if practicable, be senior in rank to the accused officer and shall, if practicable, include at least one officer of the same profession as the accused officer.
SEC. 2.284 Authority. The board shall hear the case and make a report of its findings. If the accused officer is found guilty, the board shall make recommendations as to punishment which shall be limited to the following:
(1) Dismissal from the Service;
(3) Reduction of rank number in his own grade;
(4) Retention of his present number on register for a specified time or until a specified number of officers shall have been promoted over him;
(5) Official reprimand by circular letter;
(6) Official reprimand by Surgeon General;
(7) Any combination of (2), (3), (4), (5), and (6).
SEC. 2.285 Service representative. In connection with any proceeding before a board of investigation, the Surgeon General shall detail an officer of the Service, not liable to be summoned as a witness, to prepare a statement of the charges and specifications against the accused officer and to act in the interest of the government as Service representative before the board. The Service representative shall not be a member, and shall be independent of the control of the board. The Service representative shall investigate all the circumstances of the case. All persons connected with the Service shall furnish the Service representative with such information within their knowledge as he may request. He shall have the right to be furnished with such instructions and papers or copies thereof as may be necessary for his guidance.
SEC. 2.286 Notice of charges; right to counsel. When charges are preferred against an officer for the investigation of which a board of investigation is ordered, the officer shall be furnished with a copy of such charges and the specifications thereof and shall be notified that he may, if desired, have counsel to aid in his defense.
SEC. 2.287 Presiding officer. The senior officer of the board shall be the presiding officer. He shall (1) preserve order, (2) decide upon matters relating to the routine of business, (3) request the presence of witnesses, (4) administer oaths as required, and (5) adjourn the board from day to day. He shall be authorized at any time to order the exclusion from the room of any person other than the members of the board, the recorder, stenographer, the accused and his counsel, and the Service representative, and to order a closed session limited to members of the board for the purpose of deliberation upon objections to questions and evidence and upon the validity of challenges and pleas, and of formulating its findings and recommendations. Should any member of the board object to a decision of the presiding officer the question shall be submitted to and decided by a majority vote of the board.
Sec. 2.288 Recorder. The junior officer of the board shall be recorder. Under the direction and control of the board
it shall be his duty (1) to record the proceedings, (2) to append original documents (or authenticated copies thereof) to the record, (3) to have custody of the record and all documents submitted to the board, (4) to assist the board in systematizing the information it may receive, (5) to render the board such assistance as will enable it to present the facts to the convoking authority, (6) to read the charges and specifications when the accused is arraigned, (7) if practicable to read the record of the proceedings of the preceding session at the opening of each session, (8) as may be directed by the presiding officer, to prepare and send out requests to witnesses to appear and testify, and (9) in conjunction with the presiding officer to authenticate the proceedings by his signature.
SEC. 2.289 Stenographer. Stenographic assistants shall be employed to record the testimony.
SEC. 2.290 The record. Except as otherwise provided, the entire proceedings of the board shall be fully set forth in the record, which shall be signed by the chairman and the recorder. Such record shall be confidential and shall not be disclosed, except for the purposes of the proceedings, provided that the accused and his counsel may be permitted access to the record for the purpose of preparing his defense in such proceedings.
SEC. 2.291 Oath of board members. (a) When the board assembles, the recorder shall read the order convoking it. Such order shall be read in the presence of the Service representative, the stenographer, the accused officer, and his counsel. The recorder shall then administer the following oath to each member of the board: "I do solemnly swear (or affirm) that I will carefully and impartially investigate and try the case now about to be opened; that in announcing my conclusions and recommendations to be embodied in the report of this board to be submitted to the convoking authority, I will be governed wholly by the evidence adduced, and I will not be influenced for or against the accused by anything not clearly shown in the recorded evidence; so help me God.” The presiding officer shall then administer the same oath to the recorder of the board.
Sec. 2.292 Affirmations. The closing phrase invoking the Deity in the oaths prescribed in these regulations shall be omitted in cases of affirmation.
SEC. 2.293 Oath of recorder and stenographer. The recorder and the stenographic assistants shall then be sworn by the presiding officer to keep a true record of proceedings, as follows: "I do solemnly swear (or affirm) that I will faithfully perform the duties of recorder (or stenographer), to this board, and that I will not divulge any of the proceedings of the investigation; so help me God.”
SEC. 2.294 Sessions. The board shall sit daily, except Sundays and holidays, until a decision is reached unless temporarily adjourned or dismissed by the authority which convoked it: Provided, That the presiding officer may, for good cause, grant a continuance to either party for such time and as often as may appear to be just. When the proceedings of the board have commenced they shall not be suspended or delayed on account of the absence of any of the members if a majority is present, and in the absence of the accused officer without good cause the board may proceed as if he were present.
SEC. 2.295 Challenges. The presiding officer shall ask the accused whether he objects to being tried by any member of the board, and, in case of objection, he shall state his reasons therefor. The recorder shall enter a minute of the inquiry and of the answer upon the records. A challenged member shall have the right to reply to the accused. All parties except the unchallenged members shall be excluded until a decision has been reached upon the validity of the challenge by the remaining members of the board. Should the challenge be sustained, the facts shall be reported by the presiding officer to the Surgeon General, and if the number of members is reduced below three the board shall adjourn until instructions are received. Each challenge, whenever the accused wishes to challenge more than one member, shall be received and considered separately.
SEC. 2.296 List of witnesses. The Service representative and the accused shall each furnish the presiding officer a list of his witnesses. Other witnesses may be introduced at a later stage of the investigation upon giving reasonable notice. The notice to testify shall
be prepared by the recorder and signed by the presiding officer.
SEC. 2.297 Reading of charges and specifications. The recorder shall read in the presence of the accused the charges and specification of charges preferred against him, and the accused shall be called upon to plead on each specification and charge seriatim, as follows: The recorder shall read the specification of the first charge, and the presiding offcer shall then address the accused by name and designation and ask whether he is guilty or not guilty of the specification just read. Each specification shall be read and the accused asked to plead in each instance until all of the specifications of the first charge have been covered. Then the charge shall be read and the accused be required to plead to that. The specifications and charges shall be pleaded to in this manner until all have been covered.
SEC. 2.298 Plea to charges. If the accused officer is present and refuses to plead, the presiding officer shall direct a plea of “not guilty" to be entered.
SEC. 2.299 Plea in bar. A plea in bar of investigation shall be in writing, signed by the accused, and appended to the record. Witnesses may be called and arguments submitted by both parties upon such plea. The board shall deliberate upon the matter in closed session, and, upon reopening, the board's decision shall be announced by the presiding officer. If the plea is sustained, a report shall be forwarded to the convoking authority and the board shall adjourn to await further orders.
SEC. 2.300 Preliminary instructions to witnesses. Witnesses other than the accused shall be present only when testifying and shall be warned that they are not to converse on any matter pertaining to the pending investigation.
SEC. 2.301 Calling of witnesses; oath. The witnesses shall be called before the board separately. The presiding officer shall administer to each the following oath: “I do solemnly swear (or afirm) that I will make true answers to such questions as may be propounded to me; so help me God.” Witnesses shall be cautioned before giving their testimony to testify only to facts which are within their own knowledge.
SEC. 2.302 Verification of testimony. After the testimony of the witness is closed the whole of his testimony as recorded may be read over to him and, when corrected in such parts as are in error, he shall sign it. The signatures of the witnesses shall be authenticated by the presiding officer of the board.
SEC. 2.303 Witness fees. Upon the application of the presiding officer payment of the usual witness fees to witnesses unconnected with the Government service may be authorized.
SEC. 2.304 Evidence; admissibility. Evidence may be received by the board even though inadmissible under rules of evidence applicable to court procedure. The Service representative or the counsel for the accused may, however, object to the admission of evidence or testimony on the ground that it is irrelevant, immaterial, incompetent, or otherwise improper, and if such objection is overruled by the board he shall be allowed to enter his objection upon the record. Notwithstanding the provisions of section 2.281 of these regulations, whenever it shall appear to the board to be material to the charges to prove or disprove a particular habit of the accused, evidence as to his record in that regard for a period of three years prior to the order convoking the board shall be admissible.
SEC. 2.305 Depositions. Depositions of individuals who are unable to appear in person before the board and whose testimony is material to a complete investigation of the case may be received, provided that the accused shall be given an opportunity to have a representative present when the deposition is taken.
SEC. 2.306 Order of examination. The evidence on the part of the Service shall be first taken. The evidence for the defense shall be taken when the Service rests. Either side may rest at pleasure. The examination of witnesses shall close by taking such testimony as may be offered in rebuttal, surrebuttal, impeachment, and to sustain the credibility of those witnesses whose testimony an effort has been made to impeach. The board may recall a witness at any stage of the proceedings, provided that the right of cross-examination by the accused and the Service representative shall not be denied. Each witness shall first be examined in chief by the party who summons him, and then cross-examined by the opposite party. In case of new matter being introduced on crossexamination, the party calling the wit
ness may examine him with respect to such matter, and, under like circumstances, a recross-examination shall be permitted. The board may put such questions to the witness as may be deemed necessary; a question by a member of the board generally shall not be asked until the Service representative and the accused have finished their examinations.
SEC. 2.307 Testimony of accused. The accused may, in any case, testify in his own behalf, but his failure to do so shall create no presumption against him. He may decline to answer any questions which may tend to incriminate him.
SEC. 2.308 Defense rebuttal. When the examination of witnesses is closed the accused may present argument in his defense, in writing or orally, in person or by counsel. This statement, if written, may be read before the board. The whole shall become a part of the record.
SEC. 2.309 Reply of Service representative. The Service representative shall have the right to reply to the defense in writing or orally, and this reply shall become a part of the record.
SEC. 2.310 Close of hearing. When the Service representative and the defense have completed their arguments, the hearing shall be closed. The board may, however, before its finding, authorize re-opening for the introduction of new evidence, provided it be shown that the evidence is material and its omission would leave the case incomplete. The board shall then retire to consider the record.
SEC. 2.311 Consideration by board. (a) When the board has sufficiently examined the evidence, the presiding officer shall put the question upon each specification of each charge, beginning with the first, whether the specification is “proved,” “not proved,” or “proved in part.” No written minute of the votes shall be preserved unless so ordered by the unanimous vote of the board. In any oral vote the member of the board who is junior in rank shall vote first. When a majority of the board agrees upon a finding it shall be so recorded.
(b) When the members have voted upon all the specifications of any charge the question shall be put upon the charge to each member, “Is the accused guilty of this charge, or not guilty?" When a majority decision is arrived at, the result
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shall be recorded. The board shall then proceed to the next charge and specifications until votes have been taken and decisions recorded upon all the charges and specifications.'
(c) When the members of the board have voted upon all the charges, if the accused has been found guilty upon any of them the members shall proceed to vote upon the punishment to be recommended. Each member shall write down the punishment which he believes should be recommended and shall hand his vote to the presiding officer, who shall announce the result. If a majority shall not have agreed upon the nature and degree of the punishment to be recommended, the chairman shall proceed, beginning with the mildest punishment that has been proposed and continuing, if necessary, to the next more severe punishment, and so on, successively, until a punishment to be recommended has been decided upon by a majority of the members of the board.
(d) A finding of guilty shall not be entered on a charge other than a charge specified. In case evidence develops which in the opinion of the Service representative warrants additional charges and specifications, appropriate recommendation shall be made with respect thereto by the Service representative to the Surgeon General. The Service representative shall give due notice to the presiding officer, whereupon the board shall await further instructions from the Surgeon General.
SEC. 2.312 Findings and recommendations of board. After all charges and specifications have been voted upon, the recorder, under the direction of the board, shall draw up the findings, specifying as to each charge whether the accused has been found guilty or not guilty, and, on approval by the board, shall enter such findings upon the record, together with the recommendations of the board as to punishment and clemency if the accused has been found guilty of any charge.
SEC. 2.313 Recommendations of board. (a) In arriving at its recommendations as to the nature and degree of the punishment, if any, to be imposed, the board shall take into consideration all previous convictions and the official record of the accused. If mitigating circumstances have appeared during the proceedings which could not be taken into consideration in determining the de
gree of guilt found by the verdict, the board may avail itself of such circumstances as grounds for recommending clemency. Any recommendation for clemency shall be inserted immediately after the recommendation as to punishment.
SEC. 2.314 Report to accompany record. The board shall prepare a report to accompany the record and in such report shall review the evidence as a whole, with specific reference to all evidence and to any conclusions of law on controverted questions upon which the findings are based. The report of the board shall be signed by the members concurring; any member or members not concurring, in whole or in part, may submit and sign a minority report.
SEC. 2.315 Transmittal of record and report. After the record (including the transcript of the testimony) and other documents have been signed, they shall be forwarded by the presiding officer to the Surgeon General. The board shall then adjourn pending further orders. Action Upon Findings and Recommenda
tions of Board SEC. 2.321 Action by Surgeon General. The Surgeon General shall review the record, report, and recommendations of the board, and may either order further investigation by the board or transmit the papers in the case to the Administrator with his recommendations.
SEC. 2.322 Action by the Administrator. No recommendation for punishment shall be effective until approved by the Administrator. The Administrator shall review the record, report, and recommendations of the board and the recommendations of the Surgeon General, and may either order a further investigation by the board or approve the findings and recommendations in whole or in part; or, upon the basis of the approved findings, he may order punishment or grant of clemency pr other disposition not inconsistent with these regulations. The disposition of a case by the Administrator shall be final.
SUBPART ALEPROSY DUTY BY CIVIL SERVICE
OFFICERS AND EMPLOYEES Sec. 3.1 Duty requiring intimate contact with
leprosy patients; additional pay for
civil service officers or employees. 3.2 Exception respecting certain persons.