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is a party to the proceedings, and the activity holding the requested information or employing the witness shall bear the expense of complying with the request. (2) When another federal agency is a party. No fees shall be charged to the requesting agency. Travel and per diem expenses may be paid by the requesting agency, or by the Navy activity to which the requested witness is a Ssigned, subject to reimbursement from the requesting agency. (3) When neither DON nor another federal agency is a party. Fees shall be charged to the requester for time taken from official duties by DON personnel who are authorized to be interviewed, give testimony, or escort persons on views and visits of installations. At the discretion of the cognizant Command, DON personnel need not be made available during duty hours unless directed by subpoena. Time which DON personnel spend in court testifying, or waiting to testify on factual matters shall not be charged. Fees should be charged, however, for expert Or Opinion testimony based upon the witness’s education, training, or experience. Testimony by a treating physician called to testify about his personal knowledge of a specific case is considered fact not expert testimony. Fees are payable to the Treasurer of the United States for deposit in the Treasury’s miscellaneous receipts. Rates for uniformed personnel are published in NAVCOMPT Notice 7041 series.15 Pursuant to 32 CFR 288.4, charges for civilian personnel should include the employee’s hourly rate of pay, as well as allowances and benefits. Except as provided in § 725.11(b)(4), no funds may be expended for travel Or per diem of active duty members when an agency of the Federal Government is not a party. The requesting party is responsible for travel arrangements and funding. Government funding of travel and per diem for civilian employees is authorized. (b) Special circumstances—(1) Refusal to pay fees. In cases in which a subpoena has been received and the requester refuses to pay appropriate fees, it may become necessary to request the Department of Justice to take appro
15 See footnote 1 to $725.1.
priate legal action before the court issuing the Subpoena. Determining authorities should consult promptly with the OJAG General Litigation Division or the Navy Litigation Office of the General Counsel if this course of action appears necessary, because some objections to subpoenas must be made either within ten days of Service of the subpoena or on or before the time for compliance, whichever first occurs, and because this will require timely consultation with the Department of Justice. If no subpoena has been issued, the determining authority must decide whether to deny the request or, if appropriate, waive the fees. (2) Waiver or reduction of fees. The determining authority may waive Or reduce fees pursuant to 32 CFR 288.4, 288.9, provided such waiver or reduction is in the best interest of the DON and the United States. Fee waivers and reductions shall not be routinely granted, or granted under circumstances which might create the appearance that DON favors one party over anOther. (3) Witness fees required by the court. Witness fees required by the rules of the applicable court shall be paid directly to the witness by the requester. Such amounts are to defray the cost of travel and per diem. In a case where the Government has paid the cost of travel and per diem, the witness shall turn over to his or her supervisor any payment received from a private party to defray the cost of travel that, when added to amounts paid by the Government, exceed the actual cost of travel. The Supervisor shall forward the amount turned over by the witness to the Office of the Comptroller of the Navy for appropriate action. (4) Eacceptional cases. If neither the DON, nor an agency of the Federal Government is a party, appropriated funds may be used to pay, without reimbursement, travel and per diem of DON personnel who are witnesses in criminal or civil proceedings, provided, the case is directly related to the Armed Services, or its members, and the Armed Services have a genuine and compelling interest in the outcome.
(a) The Secretary Of the Navy has authority to designate a trustee in the absence of notice that a legal committee, guardian, or other legal representative has been appointed by a State court of competent jurisdiction. 37 U.S.C. 601-604. Trustees receive the active duty pay and allowances, amounts due for accrued or accumulated leave, and retired pay or retainer pay, that are otherwise payable to a member found by competent medical authority to be mentally incapable of managing his affairs. (b) Member as used in this chapter refers to: (1) Members of the Navy or Marine Corps on active duty (other than for training) or on the retired list of the Navy or Marine Corps; and (2) Members of the Fleet Reserve Or Fleet Marine Corps Reserve.
§ 726.3 Authority to appoint trustees.
The Judge Advocate General or his designee is authorized to act for the Secretary of the Navy to appoint trustees to receive and administer Federal monies for members and to carry out the provisions of this chapter.
§ 726.4 Procedures for convening competency boards.
(a) Competency Board. (1) The commanding officer of the cognizant naval medical facility will convene a board of not less than three medical officers or physicians, one of whom will be a psyChiatrist, when there is evidence that a member who is a patient in the naval medical facility may be incapable of handling his affairs. The board will be Convened in a CCOrdance with Chapter 18, Manual of the Medical Department. The board may include members of the Reserve Components On active Or inactive duty. When active duty Navy or Marine Corps members are hospitalized in nonnaval medical facilities, the regional Naval Office of the Medical/Dental Affairs will ensure compliance with chapter 18.
(2) The Judge Advocate General or his designee may direct the commanding officer of any naval medical facility, Or request the Commanding Officer of another service medical facility or administrator of a Department of Veterans Affairs medical facility, to convene a board in accordance with this Section to determine the mental capability of a member to manage his affairs.
(3) A finding of restoration of Competency or capability to manage perSonal and financial affairs may be accomplished in the same manner Specified in chapter 18, Manual of the Medical Department, except that the board may consist of one or two medical offiCerS or physicians, One of whom must be a psychiatrist.
(4) At least. One Officer on the board, preferably the psychiatrist, will perSonally observe the member and ensure that the member's medical record, particularly that portion concerning his mental health, is accurate and Complete.
(5) The requirement for the competency board is in addition to and Separate from the medical board procedures. Each board member will sign the report of the board and will certify whether the member is Or is not mentally capable of managing his affairs. After approval by the convening authority, the original board report is forwarded to the Judge Advocate General.
(b) Records. (1) The convening authority will forward the original of each board report to the Judge Advocate General, Department of the Navy, 200 Stovall Street, Alexandria, VA 22332– 2400.
(2) In the case of a finding that a member is not mentally capable of managing his affairs, the forwarding endorsement will set forth the name, relationship, address, and telephone number(s), of the member’s next of kin and any other data to help identify a prospective trustee.
§ 726.5 Procedures for designation of a trustee.
(a) Upon receipt of a report of a board convened under section 1404 that a member has been found mentally incapable of managing his affairs, the Judge Advocate General or his designee will initiate action to appoint a trustee, provided no notice of appointment of a committee, guardian, or other legal representative by a State Court of competent jurisdiction has been received by the Judge Advocate General. The Judge Advocate General or his designee may direct any Navy or Marine Corps activity to appoint an Officer to interview a prospective trustee and make recommendations Concerning suitability. The Judge Advocate General will provide the interviewing officer with complete instructions pertaining to the interview of the prospective trustee, including the forms required to be completed by the prospective trustee that will be returned by the interviewing officer to the Judge AdvoCate General.
(b) The interviewing officer will: (1) Determine whether the prospective trustee can obtain an appropriate bond as directed by the Judge Advocate General or his designee;
(2) Ascertain that the prospective trustee is willing to execute an affidavit acknowledging that all monies will be applied to the use and benefit of the member and his legal dependents and that no fee, commission, or charge, for any Service performed by the trustee, except for payment of the required bond, will be paid from Federal monies received by the trustee.
(3) Forward recommendations to the Judge Advocate General for appropriate action.
§ 726.6 Travel orders.
The Chief of Naval Personnel or the Director, Personnel Management DiviSion, Headquarters, Marine Corps, may issue travel Orders to a member to appear before an examining board Convened to determine whether the member is mentally capable of managing his affairs. In the case of permanently retired members, however, travel for an appearance before a board convened pursuant to Section 1404, above, will be at no cost to the Government unless the Judge Advocate General or his designee determines that unusual hardShip exists and requests that appropriate authority fund the travel expenSeS.
§ 726.7 Status of pay account.
(a) Upon notification by the Commanding officer of the medical facility preparing the incapacitation determination that a member has been declared mentally incompetent to manage his affairs, the Cognizant disbursing officer will take appropriate action and immediately Send the member’s personal financial record to the appropriate finance Center following the guidelines in the Department of Defense Military Pay and Allowances Entitlements Manual, Part Four, chapter 2. The Judge Advocate General or his designee will then direct the appropriate finance center to Suspend the member's pay. Thereafter, the Judge Advocate General or his designee wil direct payment of monies to:
(1) The appointed trustee;
(2) The legal representative appointed by a State court of competent jurisdiction; or
(3) Directly to the member following a determination that the member is capable of managing his affairs.
(b) The Commanding Officer, Navy Finance Center, or Commanding Officer, Marine Corps Finance Center, will notify the Judge Advocate General of any fact affecting the pay of a member mentally incapable of managing his affairs. This includes waiver of retired pay in favor of Veterans Administration compensation; death of the member; death of the trustee; Or, notice of appointment of a legal representative by a State court of competent jurisdiction. At the request of the Judge Advocate General or his designee, the appropriate finance center will report all disbursements from the member’s a CCOunt.
(c) The Navy or Marine Corps Finance Center will seek direction from the Judge Advocate General when information from other Sources indicates a member is not competent to manage his affairs.
§ 726.8 Emergency funds.
(a) Until a trustee is appointed, the Judge Advocate General or his designee may appoint the member’s Commanding Officer or Other appropriate Official to receive emergency funds up to $1,000.00 from the pay account Of the member without bond. The money will be used for the benefit of the member and his legal dependents. (b) The commanding officer of any naval medical facility may designate an Officer of the Command to receive and account for up to $35.00 per month for the health and comfort of a member who is found mentally incapable of handling his affairs and who is a patient at the naval medical facility, if: (1) A trustee has not been designated under this chapter and a committee, guardian, or other legal representative has not been appointed by a State Court of competent jurisdiction; (2) The member has no other funds available for use in his own behalf; and (3) The funds are necessary for the purchase of items necessary for the health and comfort of the member. (c) This Section will be cited on the pay voucher as authority for payment and receipt of such funds.
§ 726.9 Reports and supervision of trustees.
(a) Accounting reports. The trustee designated under this chapter will submit aCCOunting reports annually or at Such other times as the Judge AdvoCate General or his designee directs. The Judge Advocate General will provide forms to be used by trustees for the required accounting report. The report will account for all funds received from the Navy or Marine Corps on behalf of the member. When payments to a trustee are terminated for any reaSOn, the trustee will submit a final acCounting report to the Judge Advocate General. Upon approval of the final acCOunting report, the trustee and the Surety will be discharged from liability.
(b) Failure to submit a report and default. If an accounting report is not received by the date designated by the Judge Advocate General or his des— ignee, or an accounting is unsatisfactory, the Judge Advocate General or his designee will notify the trustee in Writing. If a Satisfactory accounting is not received by the Judge Advocate General within the time specified, the trustee will be declared in default of the trustee agreement and will become liable for all unaccounted trustee funds. If a trustee is declared in default of the trustee agreement, the appropriate finance Center will be directed to terminate payments to the trustee and, if necessary, a successor trustee may be appointed. The trustee and Surety will be notified in writing by the Judge Advocate General or his designee of the declaration of default. The notification will state the reasons for default, the amount of indebtedness to the Government, and will demand payment for the full amount of indebtedness. If payment in full is not received by the Judge Advocate General within an appropriate period of time from notification of default, the account may be forwarded to the Department of Justice for recovery of funds through appropriate Civil action.
PART 727–LEGAL ASSISTANCE
Sec. 727.1 Purpose. 727.2–727.4 [Reserved]
Legal assistance shall be available to members of the Armed Forces of the United States and their dependents, and military personnel of allied nations serving in the United States, its territories or possessions. The service is intended primarily for the benefit of personnel during active Service, but is to be extended to retired military personnel, their dependents, survivors of members of the Armed Forces who would be eligible were the service member alive, and in OverSeaS area,S, to civilians, other than local-hire employees, who are in the employ of, serving with, or accompanying the U.S. Armed Forces, and their dependents, when and if the workload of the office renders such service feasible.
$727.6 Functions of legal assistance of ficers.
(a) Basic duties. A legal assistance of ficer, while performing legal assistance duties, in addition to performing any other duties which may be assigned to him:
(1) Shall counsel, advise, and assist persons eligible for assistance in connection with their personal legal problems, or refer such persons to a civilian lawyer as provided in § 727.9. (2) Shall serve as advocate and counsel for persons eligible for assistance in connection with their personal legal problems and may prepare and Sign correspondence on behalf of a client, negotiate with another party or his lawyer, and prepare all types of legal documents, including pleadings. (3) Shall, in appropriate cases and under guidelines prescribed in the Manual of the Judge Advocate General Contemplating agreements or liaison with appropriate civilian bar officials, serve as advocate and counsel for, and provide full legal representation including representation in court to, persons eligible for assistance in connection with their personal legal problems. (4) Shall, subject to the direction of the Senior legal assistance officer of the command, establish contact and maintain liaison with local bar organizations, lawyer referral Services, legal aid societies, and other local organizations through which the services of civilian lawyers may be made available to military personnel and their dependent.S. (5) Shall supervise the personnel and Operation of the legal assistance office in accordance with good legal practice and the policies and guidance provided by the Judge Advocate General. (6) Shall advise persons with complaints of discrimination on policies and procedures under the Civil Rights Act of 1964 and SECNAV Instruction 5350.5 Series. (b) Nature of assistance. Legal assistance officers and administrative and clerical personnel assigned to legal assistance offices perform legal assistance duties as official duties in the capacity of an officer or an employee of the United States. Persons performing legal assistance duties, however, should not mislead those with whom they may deal into believing that their views or opinions are the official views or Opinions of, approved by, or binding on, the Department of the Navy or the United States. (c) Duty to client. A legal assistance officer should exercise his independent