« PreviousContinue »
the applicant’s spouse, next of kin, executor, guardian and other person recognized as a personal representative by the law of the applicant’s domicile. One is considered incapable of executing an application for purposes of this paragraph only when the applicant is unable to sign the application under oath due to physical or mental inca– pacity. When an application is signed by a person other than the applicant, the circumstances rendering the applicant incapable of making Sworn application shall be set forth in the application, with appropriate documentation.
(e) Privacy Act Statement. Disclosure of personal information requested by paragraph (c) of this section is voluntary; however, failure to accurately provide all requested information may result in the application being denied because of inadequate documentation of good Cause.
[47 FR 49645, Nov. 2, 1982, as amended at 50 FR 23804, June 6, 1985]
PART 720–DELIVERY OF PERSONNEL; SERVICE OF PROCESS AND SUBPOENAS; PRODUCTION OF OFFICIAL RECORDS
Subport A–Delivery of Personnel
Sec. 720.1 Delivery of persons requested by State authorities in Criminal CaSeS. 720.2 Delivery when persons are within territorial limits of the requesting State. 720.3 Delivery when persons are beyond territorial limits of the requesting State. 720.4 PerSonS Stationed OutSide the United States. 720.5 Authority of the Judge Advocate General and the General Counsel. 720.6 Agreement required prior to delivery to State authorities. 720.7 Delivery of persons to federal authoritleS. 720.8 Delivery of persons to foreign authorities. 720.9 Circumstances in which delivery is refused. 720.10 Members released by civil authorities On bail or on their own recognizance. 720.11 Interviewing Servicemenbers or civilian employees by federal Civilian investigative agencies. 720.12 Request for delivery of members Serving Sentence of Court-martial. 720.13 Request for delivery of members Serving Sentence Of a State Court. 720.14–720.19 [Reserved]
regulation, naval and Marine authorities are limited in the extent to which they can directly assist such an act. Commands should respond to such requests as set out below, generally using the minimum authority necessary to preserve the Federal interests without unduly restricting State jurisdiction.
$720.2 Delivery when persons are within the territorial limits of the requesting State.
When the delivery of any member or civilian is requested by local civil authorities of a State for an 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 are authorized to and normally will deliver such person when a proper warrant is issued. In the Case of a member, delivery will only be effected upon compliance with $720.6, Subject to the exceptions in § 720.9. A judge advocate of the Navy Or Marine Corps should be consulted before delivery is effected. The rule discussed above applies equally to civilian employees and Civilian contractors and their employ– ees when located on a Navy Or Marine Corps installation, except that Compliance with $720.6 and Consideration of § 720.9 are not required (for purposes of this part, “State’’ includes the District, of Columbia, territories, Commonwealths, and all possessions or protectorates of the United States). Commands should normally not become a Ctively involved in civilian law enforcement. When a command has determined that a person is to be delivered in response to a valid warrant, the following guidance should be considered. If the person to be delivered is a military member, the member may be Ordered to report to a location designated by the commanding officer and Surrendered to civil authorities under Article 14, UCMJ (10 U.S.C. 814). 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 in order that delivery may be effected. A civilian may be
directed to leave a classified area. All should be done with minimum interference to good order and discipline.
$720.3 Delivery when persons are beyond territorial limits of the requesting State.
(a) General. When State Civil authorities request delivery of any member of the Navy or Marine Corps for an alleged crime or offense punishable under the law of the jurisdiction making the request, and such member is not attached to a Navy or Marine Corps a Ctivity within the requesting State or a ship within the territorial waters thereof, the following action will be taken. Any officer exercising general Court-martial jurisdiction, or officer designated by him, or any commanding officer, after consultation with a judge advocate of the Navy or Marine Corps, is authorized (upon compliance with the provisions Of this section and $720.6, and Subject to the exceptions in § 720.9) to deliver such member to make the member amenable to prosecution. The member may be delivered upon formal Or informal waiver of extradition in accordance with $720.3(b), or
upon presentation of a fugitive war
rant, in which Case the procedures of $720.3(c) apply. The rule discussed above applies equally to civilian employees and Civilian contractors and their employees when located on a Department Of the Navy installation not within the requesting State, except that compliance with $720.6 and consideration of $720.9 are not required. (b) Waiver of ertradition. (1) Any member may waive formal extradition. A waiver must be in writing and be witnessed. It must include a Statement that the member signing it has received Counsel of either a military or Civilian attorney prior to executing the waiver, and it must furth:er Set forth the name and address of the attorney Consulted. (2) In every case where there is any doubt as to the voluntary nature of a waiver, such doubt shall be resolved against its use and all persons concerned will be advised to comply with the procedures Set forth in § 720.3(C). (3) Executed copies of all waivers will be mailed to the Judge Advocate General immediately after their execution. (4) When a member declines to waive extradition, the nearest Naval Legal Service Office or Marine Corps staff judge advocate shall be informed and shall confer with the Civil authorities as appropriate. The member concerned shall not be transferred or ordered out of the State in which he is then located without the permission of the Secretary of the Navy (Judge Advocate General), unless a fugitive warrant is obtained as Set forth in § 720.3(C). (c) Fugitive warrants. (1) A fugitive warrant, as used in this chapter, is a warrant issued by a State Court of competent jurisdiction for the arrest of a member. 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. (2) Upon issuance of a fugitive warrant by the requesting State to the State in which the member is located, the latter State will normally request delivery of the member to local State authorities. Delivery to local State authorities should be arranged by Navy Or Marine Corps Officers designated in § 720.3(a), upon Compliance with the provisions of $720.6, and Subject to the conditions of §§ 720.9 and 720.3(c) (3) and (4). (3) Upon receipt of a request for delivery of a member under fugitive warrant to State authorities, if the member voluntarily waives extradition, the provisions of $720.3(b) apply. If the member is delivered to local authorities but refuses to waive extradition in the Courts of the State in which he is located. (4) NO delivery of a member by Navy or Marine Corps officers pursuant to a fugitive warrant or waiver of extradition Shall be effected without Completion of the agreement required by $720.6 and execution of Such agreement either: (i) By authorities of both the requesting State and the State in which the member is located, or (ii) By authorities of the State in which the member is located if such authorities, on behalf of the requesting State, accept the full responsibility for returning the number to a command designated by the Department of the Navy.
(d) Members stationed outside the United States. When the member sought by State authorities is not located within the United States, see $720.4.
§ 720.4 Persons stationed outside the United States.
(a) Persons desired by local U.S. authorities. When delivery of any member in the Navy or Marine Corps, or any civilian employee or dependent, is deSired for trial by state authorities and the individual whose presence is sought is Stationed outside the United States, the provisions of subpart D of this part will be followed. In all such cases, the nearest judge advocate of the Navy or Marine Corps shall be consulted before any action is taken.
(b) Members desired by U.S. Federal authorities. When delivery of any member of the Navy or Marine Corps is desired for trial in a Federal district Court, upon appropriate representation by the Department of Justice to the Secretary of the Navy (Judge Advocate General), the member will be returned to the United States at the expense of the Department of the Navy and held at a military facility convenient to the Department of the Navy and to the Department of Justice. Delivery may be accomplished as set forth in § 720.7, Subject to the exceptions in § 720.9.
Counsel (OGC) are commerical law, including maritime COntract matters; civilian employee law; real property law; and Freedom of Information Act and Privacy Act matters as delineated in 32 CFR part 701. The Office of the General Counsel shares responsibility with the Judge Advocate General for environmental law cases. (c) Points of contact. Commanding officers are advised to Contact their local area judge advocates for assistance in referring matters to the appropriate office of the Judge Advocate General or General Counsel. (d) Coordination with the Commandant of the Marine Corps. Marine Corps Commands shall inform the Commandant of the Marine Corps (CMC) of all matters referred to the Judge Advocate General or the Office of General Counsel. Copies Of all Correspondence and documents shall also be provided to CMC. The Staff Judge Advocate to the Commandant (CMC (JAR)) shall be advised of all matters referred to the Judge Advocate General. Counsel to the Commandant Shall be advised of matters referred to the Office of General Counsel.
$720.6 Agreement required prior to delivery to State authorities.
(a) Delivery under Article 14, UCMJ. When delivery of any member of the Navy or Marine Corps to the civilian authorities of a State is authorized, the member’s commanding officer shall, before making such delivery, obtain from the Governor or other duly authorized Officer of Such State a written agreement. The State Official Completing the agreement must show that he is authorized to bind the State to the terms of the agreement. When indiCating in the agreement the naval or Marine Corps activity to which the member delivered is to be returned by the State, care should be taken to des– ignate the closest appropriate activity (to the Command to which the member is attached) that possesses special Court-martial jurisdiction. The Department of the Navy considers this agreement Substantially complied with when:
(1) The member is furnished transportation (under escort in cases of delivery in accordance with $720.12) to a
naval or Marine Corps activity as set forth in the agreement; (2) The member is provided cash to Cover incidental expenses en route thereto; and (3) The Department of the Navy is so informed.
As soon as practicable, a copy of the delivery agreement shall be forwarded to the Judge Advocate General. (b) Delivery under Interstate Agreement On Detainers Act. Special forms are used when delivering prisoners under the Interstate Agreement on Detainers Act. The Act is infrequently used and most requests are pursuant to Article 14, UCMJ. See § 720.12 for a detailed disCuSSion of the Detainers Act.
$720.7 Delivery of persons to Federal authorities.
(a) Authority to deliver. When Federal law enforcement authorities display proper Credentials and Federal warrants for the arrest of members, civilian employees, civilian contractors and their employees, or dependents residing at or located on a Department of the Navy installation, commanding officers are authorized to and should allow the arrest of the individual sought. The exceptions in § 720.9 may be applied to members. A judge advocate of the Navy or Marine Corps should be consulted before delivery is effected.
(b) Agreement not required of Federal authorities. The agreement described in $720.6 is not a condition to the delivery of members to Federal law enforcement authorities. Regardless of whether the member is convicted or acquitted, after final disposition of the case, the member will be returned to the Naval Service (provided that naval authorities desire his return) and the necessary expenses will be paid from an appropriation under the Control of the Department of Justice.
$720.8 Delivery of persons to foreign authorities.
Except when provided by agreement between the United States and the foreign government Concerned, Commanding officers are not authorized to deliver members or civilian employees of the Department of the Navy, or their dependents residing at or located on a naval or Marine Corps installation, to foreign authorities. When a request for delivery of these persons is received in a country with which the United States has no agreement or when the Commanding officer is in doubt, advice should be sought from the Judge Advocate General. Detailed information concerning the delivery of members, civilian employees, and dependents to foreign authorities when a status of forces agreement is in effect is Contained in DoD Directive 5525.1 of 9 April 1985 and SECNAVINST 5820.4F.2
$720.9 Circumstances in which delivery is refused.
(a) Disciplinary proceedings pending. When disciplinary proceedings involving military offenses are pending, commanding officers should obtain legal guidance from a judge advocate of the Navy or Marine Corps prior to delivery of members to Federal or State authorities.
(b) When delivery may be refused. Delivery may be refused only in the following limited Circumstances:
(1) Where the accused has been retained for prosecution; Or
(2) When the commanding officer determines that extraordinary Circumstances exist which indicate that delivery should be refused.
(C) Delivery under Detainers Act. When the accused is undergoing sentence of a court-martial, see $720.12.
(d) Reports required. When delivery will be refused, the commanding officer shall report the circumstances to the Judge Advocate General by telephone, Or by message if telephone is impractical. The initial report shall be confirmed by letter setting forth a full Statement of the facts. A copy of the report, shall be forwarded to the regional coordinator.
§ 720.10 Members released by civil authorities on bail or on their own recognizance.
A member of the Navy or Marine Corps arrested by Federal or State authorities and released on bail or on his Own recognizance has a duty to return to his parent organization. Accordingly, when a member of the Navy or Marine Corps is arrested by Federal or
2 See footnote 1 of $720.5(b).
State authorities and returns to his ship or station on bail, or on his own recognizance, the commanding officer, upon verification of the attesting facts, date of trial, and approximate length of time that should be covered by the abSence, Shall grant liberty or leave to permit appearance for trial, unless this would have a serious negative impact On the Command. In the event that liberty or leave is not granted, a judge advocate of the Navy or Marine Corps should immediately be requested to act as liaison with the court. Nothing in this section is to be construed as permitting the member arrested and released to avoid the obligations of bond Or recognizance by reason of the member's being in the military Service.
$720.11 Interviewing servicemembers or civilian employees by federal civilian investigative agencies.
Requests by the Federal Bureau of
Investigation, Naval Investigative Service Command, or other Federal civilian investigative agencies to interview members or civilian employees of the Department of the Navy suspected or accused of crimes should be promptly honored. Any refusal of such a request shall be immediately reported to the Judge Advocate General, or the Office of General Counsel, as appropriate, by telephone, or by message if telephone is impractical. When the employee in question is a member of an exclusive bargaining unit, a staff judge advocate or General Counsel attorney will be consulted to determine whether the employee has a right to have a bargaining unit representative present during the interview.
$720.12 Request for delivery of memi. serving sentence of court-martial.
(a) General. Article 14, UCMJ (10 U.S.C. 814), provides authority to honor requests for delivery of members serving a sentence of a Court-martial. Although seldom utilized, additional authority and mandatory obligation to deliver Such members are provided by the Interstate Agreement on Detainers Act (18 U.S.C. app. 9, hereinafter “the Act”), which applies to the Federal agency holding the prisoner. The Department of the Navy, as an agency of