

**Air National Guard**

**Commander's Legal Deskbook**

**THE AIR NATIONAL GUARD**

**COMMANDER'S LEGAL DESKBOOK**

_April 2018 Edition_

MAJOR GENERAL BRIAN C. NEWBY

Air National Guard Assistant to The Judge Advocate General

COLONEL MARY A. ENGES

ANG Commander's Legal Deskbook Editor

**EDITORIAL BOARD**

Colonel Cynthia Bernett

Lieutenant Colonel David Gorman

Colonel Jennifer Conwell

Lieutenant Colonel Michelle Hagel

Colonel Monique DeSpain

Lieutenant Colonel Chris Kannady

Colonel Mary Enges

Lieutenant Colonel Jeff Knickerbocker

Colonel Christine Lennard

Lieutenant Colonel Sky Smith

Colonel Frank Rodman

Lieutenant Kevin Strine

Colonel Bill Rogers

Major Kyle Abraham

Colonel Beverly G. Schneider

Major Mark Hansen

Colonel Sue Ellen Schuerman

Captain Eric Hall

Colonel Gina Simonson

Captain Anthony Sykes

Colonel Marshall Wilde

First Lieutenant Brian Carney

Lieutenant Colonel Kristin DeJarlais

Chief Master Sergeant Jo-Ann Decker

Lieutenant John W. Erickson

Master Sergeant Nikki Blaser

1

_**Air National Guard Commander's Legal Deskbook**_

## Chapter Editors

_**Page 1**_

## CHAPTER EDITORS

Chapter 1 Administrative and Personnel Matters Col Christine Lennard

(NY)

## Chapter 2

### Authority of Commander

Col Beverly G. Schneider (MT)

## Chapter 3

Base Access, Conduct and Control Lt Col Jeffrey Knickerbocker (CT)

## Chapter 4

Benefits

Lt Col Mark Hansen

(MN)

## Chapter 5

### Civilian Personnel Matters

Maj Kyle Abraham

(OR)

## Chapter 6

### Civilian Relations

Capt Anthony Sykes

(OK)

## Chapter 7

### Ethics

Col Monique DeSpain

(OR)

## Chapter 8

### Criminal Matters

Lt Col Christopher Kannady (OK)

## Chapter 9

### Discrimination Matters

Col Jennifer Conwell

(MT)

## Chapter 10

### Drug Abuse

Lt Col Michelle Hagel

(ND)

## Chapter 11

### Duty Status Matters

Col Marshall Wilde

(OR)

## Chapter 12

### Environmental Matters

Brig Gen Robert B. Burns (Ret)

## Chapter 13

### Flying and Operations

Lt Col John W. Erickson

(OH)

## Chapter 14

### Information Control

Capt Brian Carney

(NJ)

## Chapter 15

### International Operations Law

Lt Col Kevin Strine

(IL)

## Chapter 16

### Investigatory Matters

Col Bill Rogers

(VA)

## Chapter 17

### Judge Advocate Matters

Col Cynthia Bernett

(NC)

## Chapter 18

### Lawsuits and Liability

Col Marshall Wilde

(OR)

## Chapter 19

### Medical Matters

Lt Col David Gorman

(IL)

## Chapter 20

### Mobilization Matters

Col Sue Ellen Schuerman (AZ)

## Chapter 21

### Motor Vehicle Matters

Col Sue Ellen Schuerman (AZ)

## Chapter 22

### MWR Matters

Lt Col Kristin DeJarlais

(MN)

## Chapter 23

### People Problems

Col Frank Rodman

(MO)

2

_**Air National Guard Commander's Legal Deskbook**_

## Chapter Editors

_**Page 2**_

## Chapter 24

### Quality Force Management Resources

Col Beverly G. Schneider

(MT)

## Chapter 25

### Resources

Col Mary A. Enges

(UT)

## Chapter 26

### Training

Lt Col Gina Simonson

(CO)

## Chapter 27

### Travel

Lt Col David Gorman

(IL)

## Chapter 28

### Domestic Operations

Col Nathan Mellman

(OH)

3

**PREFACE**

For the first time, commanders have multiple options to access the _Air National Guard Commander's Legal Deskbook_ , the essential reference tool for ANG commanders and their legal teams.

So how did you get here today?

You may have discovered the _Deskbook_ on iTunes, and are surfing the October 2017 edition on your iPhone, iPad, laptop or Mac. If you didn't know you could do that, you can simply go to iTunes and download a free iBook.

If you're an Android or Google device user, you can download the _Deskbook_ using those app stores.

And maybe you are more familiar with the latest .pdf version, which will continue to be updated.

But if you're using the very out-of-date softbound book "just for the references," then the law in it – like time – has long passed you by.

We know the tools listed above are just some of those you use daily to prosecute your missions efficiently and effectively.

We continue to look for ways to better increase your access to the advice you need, and that you need right now. So

please tell us what works for you, and what doesn't. Are there programs you would like to see that we don't yet offer?

Like our missions, the _Deskbook_ is continuously evolving. There is much yet to update – but part of introducing better conduits is to facilitate more timely, near real-time updates.

My thanks to Capt Eric Hall of the Rhode Island ANG JA, the unsung hero for his part in the technical trial and error of

creating new accesses for this indispensable product. I invite legal volunteers like Capt Hall to help do a little or a lot to improve the _Deskbook_ with every edition.

Because although the _Air National Guard Commander's Legal Deskbook_ is composed of the work of thousands -- from full-time policymakers to volunteer editors – at its heart, it's written for just one person. You.

It is our mission as your legal team to help you successfully navigate every issue you might face – on whichever device

that suits you best.

BRIAN C. NEWBY

Major General

ANG Assistant to TJAG

4

_**Air National Guard Commander's Legal Deskbook**_

_**Master Table of Contents**_

_**Page 1**_

**Table Of Contents**

## Chapter 1 Administrative and Personnel Matters 
## Chapter 2

### Authority of Commander 

## Chapter 3

Base Access, Conduct and Control 

## Chapter 4

Benefits 

## Chapter 5

### Civilian Personnel Matters 

## Chapter 6

### Civilian Relations 

## Chapter 7

### Ethics 

## Chapter 8

### Criminal Matters 

## Chapter 9

### Discrimination Matters 

## Chapter 10

### Drug Abuse 

## Chapter 11

### Duty Status Matters 

## Chapter 12

### Environmental Matters 

## Chapter 13

### Flying and Operations 

## Chapter 14

### Information Control 

## Chapter 15

### International Operations Law 

## Chapter 16

### Investigatory Matters 

## Chapter 17

### Judge Advocate Matters 

## Chapter 18

### Lawsuits and Liability 

## Chapter 19

### Medical Matters 

## Chapter 20

### Mobilization Matters 

## Chapter 21

### Motor Vehicle Matters 

## Chapter 22

### MWR Matters 

## Chapter 23

### People Problems 

## Chapter 24

### Quality Force Management Resources 

## Chapter 25

### Resources 

## Chapter 26

### Training 

## Chapter 27

### Travel 

## Chapter 28

### Domestic Operations

5

_**Air National Guard Commander's Legal Deskbook**_

_**Master Table of Contents**_

_**Page 2**_

**Chapter 1 - Administrative and Personnel Matters**

1-1 Table of Contents

1-2 Absent Military Members

1-3 AFSC Reclassification and Training

1-4 ANG Assistants

1-5 Assignments

1-6 Board for Correction of Military Records

1-7 Boards and Court-Martial - A View from the Inside

1-8 Conditional Release

1-9 Conscientious Objectors

1-10 Dependent Care Responsibilities

1-11 Disposal of Personal Property

1-12 Dress and Appearance

1-13 Enlistment and Re-enlistment

1-14 Enlistment and Re-enlistment Bonus Programs

1-15 Enlistment of Airmen - Defective

1-16 Federal Commission Status Withdrawal

1-17 Federal Recognition of Officers

1-18 Homosexuality

1-19 Line of Duty Determinations

1-20 MAJCOM 265 Officers

1-21 National Security Cases

1-22 Newcomer's Briefing

1-23 Officer Evaluation System

1-24 Officership

1-25 Orders - Problem Areas

1-26 Palace Chase

1-27 Part-Time Service

1-28 Personnel Security Access Program

1-29 Pregnancy of ANG Personnel

1-30 Promotion of ANG Airmen

1-31 Promotion of ANG Officers

1-32 Recruiting - Consolidation of Air Force, Air Force Reserve and Air National Guard Programs

1-33 Remission and Waiver of Indebtedness

1-34 Reporting Identifiers

1-35 Report of Facts and Circumstances of Death

1-36 Selective Retention in the Air National Guard

1-37 Transfer to the Individual Ready Reserve

1-38 Unions- Military

1-39 USAF Instructions, ANG Supplements and Unit Instructions

1-40 Unsatisfactory Participation

1-41 Withdrawal of Authority to Bear Firearms

1-42 Lautenberg Amendment

## Chapter 2 - Authority of Commander

### 2-1 Table of Contents

2-2 Command Influence

2-3 Command Succession

2-4 Command - Waiver to Allow Non-rated Officer to Command

2-5 Jurisdiction

6

_**Air National Guard Commander's Legal Deskbook**_

_**Master Table of Contents**_

_**Page 3**_

2-6 Problem Solving - ANG and USAF Commanders Similar and Different Approaches

2-7 Sources of Commander's Authority

2-8 State ANG Headquarters

2-9 Role of the First Sergeant

2-10 Legislative Process

**Chapter 3 - Base Access, Conduct, and Control**

3-1 Table of Contents

3-2 Access to Military Installations

3-3 Air Base Security Guards

3-4 Base Facilities Board

3-5 Base Security Council/Resource Protection Committee

3-6 Base Tours

3-7 Civilian Misconduct on Base

3-8 Civilian Warrants and Process - Service on Base

3-9 Commercial Solicitation on Base

3-10 Day Care Centers

3-11 Barment

3-12 Leases and Armory Use Agreements

3-13 Open Houses and Free Speech

3-14 Pass and Registration

3-15 Possession of Privately Owned Firearms on Base

3-16 Smoking in Air National Guard Facilities

3-17 Use of Firing Range by Local Police, Boy Scouts and other Non-Military Persons or Groups

3-18 Weddings and Other Social Affairs on Base

## Chapter 4 - Benefits

### 4-1 Table of Contents

4-2 Benefits

4-3 TRICARE and DEERS

4-4 Disability of National Guard Members

4-5 Continued Health Care Benefit Program

4-6 Montgomery G.I. Bill

4-7 Payment for Healthcare Treatment of ANG Members

4-8 Veterans Benefits

## Chapter 5 - Civilian Personnel Matters

### 5-1 Table of Contents

5-2 Civilian Employee Discipline

5-3 Employee Interrogation

5-4 Injuries to Civilian Employees

5-5 Labor Relations

5-6 Unacceptable Performance of Civilian Employees

5-7 Unemployment Compensation

5-8 Unions - Collective Bargaining Agreement Negotiating Team

5-9 Whistleblower Protection Act

## Chapter 6 - Civilian Relations

### 7

_**Air National Guard Commander's Legal Deskbook**_

_**Master Table of Contents**_

_**Page 4**_

6-1 Table of Contents

6-2 Aid to Civilian Authorities

6-3 Civic Organizations

6-4 Community Relations Programs

6-5 Counter-Drug Support Programs

6-6 Memoranda of Understanding (MOUs)

6-7 Posse Comitatus

## Chapter 7 - Ethics

### 7-1 Table of Contents

7-2 Fundraising

7-3 Ethics

7-4 Professional and Unprofessional Relationships

7-5 Gambling, Lotteries, and Raffles

7-6 Gifts From Outside Sources

7-7 Gifts among Employees

7-8 Honorary Memberships

7-9 Off-Duty Employment

7-10 Organizational Emblems, Symbols and Names

7-11 Outside Employment of Spouses

7-12 Political Activities

7-13 Job Hunting and Post Government Employment

7-14 OGE Form 450: Statement of Affiliations and Financial Interests

7-15 Conflicts of Interest

7-16 Support of Non-Federal Entities

## Chapter 8 - Criminal Matters

### 8-1 Table of Contents

8-2 Military Justice Jurisdiction - ANG Members in Title 10 Status

8-3 Federal Magistrate Judges

8-4 Evidence - Differing Standards and Burdens of Proof

8-5 Chain of Custody

8-6 Arrest By Civilian Authorities

8-7 Arrests Authorized by the ANG

8-8 Pretrial Confinement or Restraint

8-9 Advising Suspects of Their Rights

8-10 Confessions

8-11 Polygraphs (Lie Detectors) - Use in the Military

8-12 Criminal Investigations, Prosecutions and Reporting - DoD and DoJ

8-13 OSI - Air Force Office of Special Investigations

8-14 OSI and SF Reports

8-15 Courts-Martial

8-16 Inspections and Searches

8-17 Driving While Intoxicated and Others Offenses Involving Intoxication

8-18 Use of Deadly Force

8-19 Theft and Vandalism Claims

8-20 Complaint of Wrongs

8-21 Model State Code of Military Justice

8-22 Sexual Assault Disposition Authority

8-23 State Mandatory Child Abuse Reporting and National Guard Chaplain Confidentiality

8

_**Air National Guard Commander's Legal Deskbook**_

_**Master Table of Contents**_

_**Page 5**_

## Chapter 9 - Discrimination Matters

### 9-1 Table of Contents

9-2 Affirmative Actions

9-3 Discrimination Complaints - Military

9-4 Discrimination Complaints - Technician

9-5 Equal Opportunity and Treatment Program

9-6 Nondiscrimination in Federally Assisted Programs

9-7 Release of Reports of Investigation in Discrimination Complaints to Management Officials

9-8 Sexual Harassment

## Chapter 10 - Drug Abuse

### 10-1 Table of Contents

10-2 Cross Functional Oversight Committee

10-3 Alcohol Abuse

10-4 Drug Abuse

10-5 Steroids

10-6 Drug Abuse - Administrative Discharge Policy

10-7 Urinalysis Program

10-7A Urinalysis Attachment

10-8 Consent Urinalysis Tests

10-9 Command Directed Urinalysis

## Chapter 11 - Duty Status Matters

### 11-1 Table of Contents

11-2 Active Duty - Air National Guard Members

11-3 Active State Duty

11-4 AGR Program

11-5 Enforceability of Orders by Air Force Officers to ANG Personnel Not in Federal Service

11-6 Relationship with Other Military Components

## Chapter 12 - Environmental Matters

### 12-1 Table of Contents

12-2 Criminal Liability of Commanders for Environmental Violations

12-3 Environmental Duties at Base Level

12-4 Hazardous Waste Disposal

12-5 Preservation of Historic Properties

12-6 Environmental Impact Analysis Process

12-7 Air Emissions

12-8 Hazardous Substance Spill Contingency Programs and Emergency Release Reporting

12-9 Handling Inspections and Responding to Notices of Violations (NOVs)

12-10 Recycling and Waste Diversion Program

12-11 What Questions Should I Ask My Installation Staff?

**Chapter 13 - Flying & Operations**

13-1 Table of Contents

13-2 Aerial Events, Flyovers, and Static Displays

13-3 Air Traffic Control Operations: Authorization and Liability

9

_**Air National Guard Commander's Legal Deskbook**_

_**Master Table of Contents**_

_**Page 6**_

13-4 Aviation Career Incentive Pay

13-5 FAA - Investigation of Flying Violations by Military Members

13-6 Flying Evaluation Board

## Chapter 14 - Information Control

### 14-1 Table of Contents

14-2 Classified Material

14-3 "For Official Use Only"

14-4 Access to Military Records

14-5 Confidentiality and Privileged Communications

14-6 Subpoenas and Consensual Release of Records

14-7 Releasing Information in Litigation

14-8 Media Relations and the Public Affairs Office

14-9 COMSEC Telephone Monitoring

14-10 Unauthorized Tape Recordings

14-11 Freedom of Information Act

14-12 Privacy Act

14-13 Freedom of Expression - Restrictions on Military Members

14-14 Copyright

14-15 Unauthorized Copying and Unauthorized Use of Software

14-16 Improper Use of Government Computer Systems and Monitoring Internet and E-mail Use

14-17 Trademarks

## Chapter 15 - International Operations Law

### 15-1 Table of Contents

15-2 Asylum and Refuge Requests - Aircraft outside the United States

15-3 Border Clearance - Arrival of Aircraft from OCONUS

15-4 Code of Conduct

15-5 Airspace and Aircraft

15-6 Civil Affairs, Civil-Military and Stability Operations

15-7 Claims

15-8 Foreign Criminal Jurisdiction

15-9 Foreign Search, Inspections, and Customs Duties of U.S. Aircraft

15-10 Host Nation Support - Peacetime and Wartime (NATO)

15-11 Interrelationship of U.S. Customs and Military Agencies - The U.S. Country Team

15-12 Passports and Visas

15-13 Returning to the United States - Customs

15-14 Status of Forces Agreement

15-15 OPCON and ADCON for Deploying ANG Forces

15-16 Law of Armed Conflict

15-17 War and Deployment Planning – The Judge Advocate's Role

15-18 Loan of ANG Officers and Noncommissioned Officers to Allies

15-19 Enemy Prisoners of War and Detainees

15-20 Rules of Engagement

15-21 Cyberlaw and Cyberspace Military Operations

## Chapter 16 - Investigatory Matters

### 16-1 Table of Contents

16-2 Aircraft Accidents and Safety Investigations Off-Base

10

_**Air National Guard Commander's Legal Deskbook**_

_**Master Table of Contents**_

_**Page 7**_

16-3 Aircraft and Missile Accident Investigations and Reports

16-4 Boards - Investigative

16-5 Commander's One-On-One Meeting With Member - Precautions

16-6 Congressional and Legislative Inquires

16-7 Fraud, Waste, and Abuse

16-8 Freedom to Complain - Military Members

16-9 Inspector General

16-10 Investigation by Commander of Suspected Minor Offenses

16-11 Investigations and Inquiries

16-12 Surveillance

## Chapter 17 - Judge Advocate Matters

### 17-1 Table of Contents

17-2 An ANG Commander's Guide to the Base SJA

17-3 Professional Responsibility – Ethical Guidelines for ANG Judge Advocates

17-4 The Air Force Inspection System (AFIS)

17-5 Judge Advocate Support for ANG Units Deploying Overseas

17-6 Judge Advocate Training Regulation

17-7 Law Libraries

17-8 Legal Assistance Program

17-9 Legal Assistance to Unit Members and the Role of the Judge Advocate to the Commander

17-10 Legal Office - Operational Guidance

17-11 Legal Reviews

17-12 Military Justice Authorized Activities of ANG Judge Advocates in Non-Federalized Status

17-13 Notarial Acts

17-14 Paralegals

17-15 Preventive Law Program

17-16 Staff Assistance Visits - Judge Advocate

17-17 TJAG's ANG Council

17-18 Witnesses - Obtaining

17-19 Witness Preparation

## Chapter 18 - Lawsuits and Liability

### 18-1 Table of Contents

18-2 Claims

18-3 _Feres_ Doctrine

18-4 Indemnification Agreements

18-5 Judicial Review of Military Administrative Actions

18-6 Lawsuits against National Guard Personnel

18-7 Liability of National Guard Legal Office Personnel

18-8 Liability of National Guard Medical Personnel

18-9 Personal Liability of Federal and State Officials

18-10 DELETED

18-11 Transportation of and Liability to Foreign Military Nationals and their Dependents

## Chapter 19 - Medical Matters

### 19-1 Table of Contents

19-2 HIV

19-3 Ambulance Response Off-Base

11

_**Air National Guard Commander's Legal Deskbook**_

_**Master Table of Contents**_

_**Page 8**_

19-4 Blood Drives

19-5 CPR Training and Potential Liability

19-6 Healthcare Practitioners - Privileges

19-7 Hospital Assistance Agreements

19-8 Medical and Dental Care During Inactive Duty Training

19-9 Medical and Dental Care From Civilian Sources

19-10 Medical and Dental Care to Persons Authorized

19-11 Worldwide Duty Medical Evaluations

19-12 Medical Evaluation (Profile Change)

19-13 Mental Health Evaluations

19-14 National Marrow Donor Program

19-15 Anthrax

19-16 Suicide Prevention

19-17 Air Force Medical Service's Preventive Medicine Initiative

## Chapter 20 - Mobilization Matters

### 20-1 Table of Contents

20-2 Mobilization of Air National Guard (Federal and State)

20-3 Personal Affairs Checklist

20-4 Pre-Mobilization Legal Counseling

20-5 Servicemember's Civil Relief Act Lease Termination Form (Federal and State)

20-6 Stop-Loss

## Chapter 21 - Motor Vehicle Matters

### 21-1 Table of Contents

21-2 Commercial Driver's License Requirement - Waiver

21-3 Driver's Licenses

21-4 Vehicle Registration

21-5 Motor Vehicle Accident Reporting

21-6 Motor Vehicle Rules - Military Bases

21-7 Suspension of Base Driving Privileges

## Chapter 22 - MWR Matters

### 22-1 Table of Contents

22-2 Private Organizations and Unofficial Activities

22-3 Dining Social Club Organizations

22-4 Air Force Fitness and Sports Programs

22-5 Morale, Welfare, and Recreation Funds

22-6 Using Base-Sanctioned Private Organizations to Support Open Houses

## Chapter 23 - People Problems

### 23-1 Table of Contents

23-2 Adoption Expense Reimbursement

23-3 Bad Checks

23-4 Bankruptcy Notice

23-5 Child and Spouse Abuse, Maltreatment and Neglect

23-6 Child Custody - Unlawful

23-7 Citizenship

12

_**Air National Guard Commander's Legal Deskbook**_

_**Master Table of Contents**_

_**Page 9**_

23-8 Civilian Employment and Guard Membership

23-9 Debt Collections

23-10 Dependent Support

23-11 Domicile

23-12 Financial Responsibility

23-13 Foreign Divorce Decrees

23-14 Former Spouses' Protection Act

23-15 Garnishment

23-16 Jury Duty

23-17 Living Wills

23-18 Paternity Claims

23-19 Powers of Attorney

23-20 Wills

23-21 Worldwide Locator Service for Military Personnel

23-22 Sexual Assault Prevention and Response (SAPR)

## Chapter 24 - Quality Force Management

### 24-1 Table of Contents

24-2 Administrative Demotion of Airmen

24-3 Administrative Discharge of Enlisted Personnel

24-4 Administrative Discharge of Officers

24-5 Admonitions and Reprimands - Administrative

24-6 Barring Reenlistment

24-7 Counseling

24-8 Dropping ANG Officers from the Rolls Instead of Administrative Discharge

24-9 ID Card Retrieval

24-10 Mailing or Delivery - Affidavits and Certificates of Service

24-11 Nonjudicial Punishment

24-12 Quality Force Management Actions

24-13 Revocation of Security Clearance

24-14 Selective Enforcement

24-15 Air National Guard Fitness Program

24-16 Unfavorable Information Files and Control Rosters

## Chapter 25 - Resources

### 25-1 Table of Contents

25-2 Airport Joint Use Agreements

25-3 Alert Resource Management

25-4 Anti-Terrorist Matters

25-5 Architect and Engineering Services

25-6 Computer Acquisition and Security

25-7 Air National Guard Construction

25-8 Contracting Pitfalls

25-9 ANG Facilities

25-10 Federal Government Property Furnished to the ANG

25-11 Fire Protection Jurisdiction

25-12 Installations Jointly or Solely Occupied by the ANG

25-13 Issue Items and Equipment Turn-In

25-14 Loan of Air Force Equipment

25-15 National Defense Area

13

_**Air National Guard Commander's Legal Deskbook**_

_**Master Table of Contents**_

_**Page 10**_

25-16 Privatization

25-17 Quarters

25-18 Real Property - Acquisition and Retention

25-19 Reciprocal Fire Protection

25-20 Reports of Survey

25-21 United States Property and Fiscal Officer (USPFO)

25-22 Utilities

25-23 Cooperative Agreement LTC Krempasky Material

25-G1 Glossary of Construction Terms

25-G2 Glossary of Procurement Terms

25-G3 Glossary of Report of Survey Terms

## Chapter 26 - Training

### 26-1 Table of Contents

26-2 Training

26-3 Training outside the United States

26-4 Telecommuting

## Chapter 27 - Travel

### 27-1 Table of Contents

27-2 Car Rentals by National Guard Members

27-3 Civilian Travel aboard Military Aircraft

27-4 Contract Airlifts

27-5 Frequent Flyer Programs

27-6 Official Travel

27-7 Space - Available Travel aboard Military Aircraft

27-8 Space - Required Travel aboard Military Aircraft

27-9 TDY and Travel

27-10 Travel Advances

27-11 Travel Expenses

27-12 Travel Vouchers

27-13 Visits to Other Bases

27-14 Visits to United States Congress

27-15 Government Travel Card

## Chapter 28 - Domestic Operations

### 28-1 Table of Contents

28-2 Activation, Chain of Command and Discipline

28-3 _Posse Comitatus_ Act and Permissible Law Enforcement Activities

28-4 Wildland Fire Fighting

28-5 Fiscal Law, Title 10 Activation and Reimbursement

28-6 Arming and the Use of Force

28-7 Intelligence Oversight in Federal Status

28-8 Medical Issues

28-9 Liability and Environmental Issues

28-10 Pandemic Influenza Response

14

**Articles Updated in this Edition**

1-4

ANG Assistants

1-6

Board for Correction of Military Records

1-7

Boards and Court-Martial - A View from the Inside

1-12

Dress and Appearance

1-13

Enlistment and Reenlistment

1-19

Line of Duty Determinations

1-27

Credit for Part-Time Service

3-7

Civilian Misconduct on Base

4-5

Continued Health Care Benefit Program

5-6

Unacceptable Performance of Civilian Employees

7-7

Gifts among Employees

7-8

Honorary Memberships

7-9

Off-Duty Employment

10-2

Drug and Alcohol Abuse Control Committee/Cross-Functional Oversight Committee

10-3

Alcohol Abuse

10-4

Drug Abuse

10-5

Steroids

10-6

Drug Abuse - Administrative Discharge Policy

10-7

Urinalysis Program

10-7a

Urinalysis Attachment

10-8

Consent Urinalysis Tests

10-9

Command-Directed Urinalysis

15-14

Status of Forces Agreement

17-2

An ANG Commander's Guide to the Base SJA

17-3

Professional Responsibility - Ethical Guidelines for ANG Judge Advocates

17-4

Inspections - Judge Advocates

17-5

Judge Advocate Support for ANG Units Deploying Overseas

17-6

Judge Advocate Training Regulation

17-8

Legal Assistance Program

17-9

Legal Assistance to Unit Members and the Role of the Judge Advocate to the Commander

17-10

Legal Office - Operational Guidance

17-11

Legal Reviews

17-14

Paralegals

17-18

Witnesses - Obtaining

25-2

Airport Joint Use Agreements

25-3

Alert Resource Management

25-10

Federal Government Property Furnished to the ANG

25-12

Installations Jointly or Solely Occupied by the ANG

25-15

National Defense Area

25-21

Utilities

25-22

Cooperative Agreement

27-13

Visits to Other Bases

27-14

Visits to United States Congress

15

**The 10 Commandments of Command**

**Written from a Judge Advocate's Perspective**

I. Thou shalt only do, order or permit authorized acts, lest thou may become personally liable.

II. Thou shalt not do, order or permit any prohibited acts lest though shalt surely become personally liable.

III. Though shalt constantly maintain a vigorous policy against all forms of discrimination, including sexual harassment.

IV. Thou shalt fairly and uniformly enforce all regulations, orders and policies.

V. Thou shalt always adhere to ethical conduct and avoid even the appearance of a conflict of interest.

VI. Thou shalt aggressively discourage fraternization and encourage only proper, professional relationships among they

unit members.

VII. Thou shalt be ever mindful of the duty status of they unit members ... for STATUS IS EVERYTHING.

VIII. Thou shalt promptly and thoroughly investigate all allegations of misconduct.

IX. Thou shalt strictly follow applicable regulations in and thoroughly document all adverse actions lest thy decisions

may be overturned in court.

X. Thou shalt teach thyself to recognize all situations and actions where Judge Advocate advice or legal review is necessary lest they flanks shalt become unnecessarily exposed.

16

**Chapter 1, Administrative and Personnel Matters**

**Table of Contents**

**Section**

1 - 1 Table of Contents

1 - 2 Absent Military Members

1 - 3 AFSC Reclassification and Training

1 - 4 ANG Assistants

1 - 5 Assignments

1 - 6 Board for Correction of Military Records

1 - 7 Boards and Court-Martial - A View from the Inside

1 - 8 Conditional Release

1 - 9 Conscientious Objectors

1 - 10 Dependent Care Responsibilities

1 - 11 Disposal of Personal Property

1 - 12 Dress and Appearance

1 - 13 Enlistment and Reenlistment

1 - 14 Enlistment and Reenlistment Bonus Programs

1 - 15 Enlistment of Airmen - Defective

1 - 16 Federal Commission Status Withdrawal

1 - 17 Federal Recognition of Officers

1 - 18 Homosexuality

1 - 19 Line of Duty Determinations

1 - 20 Statutory Tours

1 - 21 National Security Cases

1 - 22 Newcomer's Briefing

1 - 23 Officer Evaluation System

1 - 24 Officership

1 - 25 Orders - Problem Areas

1 - 26 Palace Chase

1 - 27 Part-Time Service

1 - 28 Personnel Security Access Program

1 - 29 Pregnancy of ANG Personnel

1 - 30 Promotion of ANG Airmen

1 - 31 Promotion of ANG Officers

1 - 32 Recruiting - Consolidation of Air Force, Air Force Reserve and Air National Guard Programs

1 - 33 Remission and Waiver of Indebtedness

1 - 34 Reporting Identifiers

1 - 35 Report of Facts and Circumstances of Death

1 - 36 Selective Retention in the Air National Guard

1 - 37 Transfer to the Individual Ready Reserve (IRR)

1 - 38 Unions-Military

1 - 39 USAF Instructions, ANG Supplements and Unit Instructions

1 - 40 Unsatisfactory Participation

1 - 41 Withdrawal of Authority to Bear Firearms

1 - 42 Lautenberg Amendment

_**Air National Guard Commander's Legal Deskbook**_

17

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-2 Absent Military Members**_

_**Page 1**_

**Absent Military Members**

**Updated by Lt Col Jeffrey Knickerbocker, June 2014**

**AUTHORITY** : ANGI 36-2503, _Administrative Demotion of Airmen_ (24 Feb 2010; Incorporating Change 1, 4 November

2013); AFI 36-3209, _Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members_ (14 Apr 2005; Incorporating through Change 3, 20 Sept 2011); AFI 36-2911, _Desertion and Unauthorized Absence_ (15 Oct 2009); applicable state law. 

## INTRODUCTION

Attendance and participation by all members of your unit is imperative to the accomplishment of your mission. Unex-

plained absences are detrimental and should be avoided if at all possible. Encourage your subordinates to report their pro-

spective attendance problems at the earliest possible time to the unit or squadron orderly room. Commanders should

establish uniform internal policies for prompt and genuine assistance to handle potential absenteeism, as well as for con-

firmed absenteeism.

**ABSENCE**

Under ANGI 36-2503, Unsatisfactory Participation is defined as having six or more unexcused absences from scheduled

unit training assembly (UTA) periods [4 hour per UTA period] in any continuous 12-month period. In accordance with

AFI 36-3209, the commander may discharge a member who has accumulated 9 or more unexcused absences from UTA

within a 12-month period. For members on Title 10 orders, AFI 36-2911 defines Absent Without Leave (AWOL) as an

unexcused absence of at least 24 hours and no more than 30 days.

**DUTY STATUS AT TIME OF ABSENCE**

The specific action that you take against an absent member will depend on whether the ANG member is on active duty,

full-time national guard duty (AGR), annual training (AT) or is merely missing a regularly scheduled unit training assem-

bly (UTAs).

1. If the ANG member is AWOL from AT or UTAs, or is an AGR, you should check with your unit Staff Judge Advocate

(SJA) for guidance on any state military code, regulation or policy governing Unsatisfactory Participation.

2. If the ANG member is on Title 10 active duty, you should follow the directives of AFI 36-2911.

**ACTION UPON DISCOVERY OF ABSENCE**

**Locate the Member**

When you discover a member is not present for duty, try to locate the member to determine if the absence is excused or

explainable. You may contact the member directly for this information, or you may have your first sergeant or the mem-

ber's supervisor contact the member. If you cannot locate the member, contact the member's relatives and/or friends

within the unit to determine the member's whereabouts and reason(s) for missing military duty. Caveat: Contact your

JAG to discuss Article 31 or state code rights advisement requirements prior to discussions with a member you suspect

of an offense.

_**Air National Guard Commander's Legal Deskbook**_

18

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-2 Absent Military Members**_

_**Page 2**_

**Determine Reasons for Absence**

If the member missed duty due to illness or hospitalization or other reason you deem legitimate, you should require the

member to provide written evidence before considering the absence excused. If the member was missing because of con-

finement in jail by civilian authorities then the absence is without authority unless it is later learned that the reason for the confinement was unjustified (i.e., the criminal charges are dismissed or the member is exonerated).

**Absence from Active Duty**

If the ANG member is on active duty, you should take the following actions:

1. Once it is decided that the absence is unexcused and the member cannot be located, notify the unit's Security Forces

Squadron as well as the member's active duty base of assignment or the nearest active duty Air Force Security Forces

Squadron;

2. Special processing is required if the member has had access to classified information within the past twelve (12)

months, has traveled to or remains in a foreign country, or has some duty or travel restrictions. See AFI 36-2911, Chap-

ters 3 and 4;

3. Prepare an AF Form 2098, Duty Status Change and forward it to the member's servicing MPF and Finance Office after

24 hours of discovery of the AWOL;

4. Within 72 hours of the AWOL, prepare and forward a report of "Commander's inquiry" to AFPC DPWCM, (Fax DSN

665-4757 or 210-565-4757) and the installation's chief of security forces. Determine whether the casualty regulation,

AFI 36-3002 applies. See AFI 36-2911, paragraph 2.2.3.5. This is to provide investigative leads which might result in the

absentee's return to active duty;

5. Ensure that other important reporting actions are taken on the 10th, 31st, 60th, and 180th day of absences outlined in

AFI 36-2911, Table 1.1;

6. Within 30 days of the AWOL, ensure the member's personal effects are secured until the member's

return; and

7. When the member is returned to military control, prepare another AF Form 2098, Duty Status Change; and

8. Continually coordinate with your SJA regarding possible administrative and disciplinary actions.

_See_ AFI 36-2911, Table 1.1

**Absence from UTAs, AT, or AGR Full-Time Training**

If the ANG member is not on active duty but is missing UTAs or full-time training with regularity, or has

missed an AT period without explanation, you should take the following actions:

1. Contact your unit SJA and FSS to determine if there is any relevant unit, regulation, policy guidance or state law on

AWOL. For example, check your state Code of Military Justice;

2. Appropriately document, through unit roll call rosters and memos for the record, the member's unexcused absence;

3. Generally, for absences from UTAs:

_**Air National Guard Commander's Legal Deskbook**_

19

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-2 Absent Military Members**_

_**Page 3**_

a. While the commander has discretion, typically it is best to document an AWOL in a written letter of counseling to the

member. The letter should include a discussion of the potential consequences for continued unexcused absence (i.e ., de-

motion, nonjudicial punishment, non-recommendation for reenlistment, involuntary transfer to the Individual Ready Re-

serve (IRR) with an unfavorable service characterization, involuntary discharge from the ANG, or involuntary recall to

extended active duty if member is Palace Chase.) Offer the member the opportunity to document and explain the ab-

sences and improve his or her attendance. Order the member to report on his or her next regularly scheduled duty day;

b. After six (6) unexcused absences, you may choose to recommend the member for demotion. Notify the member by

letter through certified mail or personal delivery of your intention to seek demotion, pursuant to ANGI 36-2503, section

D. Attachment 3 and 4 contains the elements of a proper demotion notification letter. A decision to recommend demo-

tion does not excuse the member from further absences and your notification memorandum should include an order for

the member to report on the next regularly scheduled duty day;

c. After nine (9) unexcused absences, you may notify the member of your intention to seek the member's discharge from

the unit pursuant to AFI 36-3209. Advise the member of all rights under AFI 36-3209, Chapter 4, including the right to:

legal counsel, a copy of the discharge package, submit statements, and an administrative discharge board, if applicable.

Give the member thirty (30) calendar days after the date of the letter to acknowledge receipt of your recommendation for

discharge, and to exercise those rights. Serve the notification letter in person if possible, otherwise by certified mail to the member's last known address. If efforts to serve the member by certified mail are unsuccessful, the notification must

also be sent by first class mail. If both the certified mail notification and first class mail are returned as undeliverable, request verification of the last permanent mailing address from the postmaster and re-mail the correspondence to

the correct address. A sample letter to the postmaster can be found at:

http://about.usps.com/handbooks/as353/as353c5_002.htm#ep797495.

Document all efforts taken to locate the member in the file.

**CONCLUSION**

When you must deal with the unauthorized absence of a unit member, consult with the unit SJA throughout the entire

process to ensure the legal sufficiency of your actions. The SJA can advise you of the appropriate steps to take in handling each AWOL case.

_**KWIK-NOTE: Determine the type of duty the member missed, the reasons for the absence, and take prompt appropriate ac-**_

_**tion.**_

**RELATED TOPICS:**

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**SECTION**

Active Duty - Air National Guard Members

11-2

Administrative Demotion of Airmen

24-2

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Admonitions and Reprimands - Administrative

24-5

Arrest By Civilian Authorities

8-6

Arrests Authorized by the ANG

8-7

Courts-Martial

8-15

Disposal of Personal Property

1-11

Investigation by Commander of Suspected Minor Offenses

16-10

Jurisdiction

2-5

Legal Reviews

17-11

Nonjudicial Punishment

24-11

OSI - Air Force

8-13

_**Air National Guard Commander's Legal Deskbook**_

20

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-2 Absent Military Members**_

_**Page 4**_

OSI and SF Reports

8-14

Palace Chase

1-26

Personnel Security Access Program

1-28

Quality Force Management Actions

24-12

Report of Facts and Circumstances of Death

1-35

Military Justice Jurisdiction – ANG Members in Title 10 Status

8-2

Revocation of Security Clearance

24-13

Selective Enforcement

24-14

Status of National Guard Members

11-7

Training

26-2

Transfer to the Individual Ready Reserve (IRR)

1-37

Unsatisfactory Participation

1-40

_**Air National Guard Commander's Legal Deskbook**_

21

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-3 AFSC Reclassification and Training**_

_**Page 1**_

**AFSC Reclassification and Training**

**Updated by Lt Col Jeffrey Knickerbocker, June 2014**

**AUTHORITY** : AFI 36-2101, _Classifying Military Personnel_ (25 Jun 2013; Incorporating Change 1, 18 Nov 2013); AFPD 36-21, _Utilization and Classification of Air Force Military Personnel_ (1 Apr 98); AFI 36-2626, _Airman Retraining Program_ (3 Jun 2013; Incorporating Change 1, 15 Jan 2014); ANGI 36-2602, _Air National Guard Recruiting and Retention Programs_ (12 Feb 2012); AFI 36-2201, _Air Force Training Program_ (15 Sept 2010, Incorporating Through Change 3, 7 Aug 2013). 

## INTRODUCTION

AFSC reclassification and training issues can arise for a variety of different reasons and routinely impact individual ca-

reers and overall unit readiness and effectiveness. While reclassification may seem like a simple administrative action,

significant lead time and assistance may be needed to ensure a member meets the qualification and training require-

ments for a new AFSC.

**AFSC DEFINED AND THE MILITARY PERSONNEL CLASSIFICATION SYSTEM**

The purpose of the military personnel classification system is to identify duties and tasks for every position needed to

accomplish the Air Force mission and also to match the qualifications and abilities of each Air Force and Air National

Guard member to an appropriate position. Each job identified as necessary to the Air Force mission is called an Air Force

Specialty (AFS) and each AFS is represented by an alpha-numeric Air Force Specialty Code (AFSC). For instance, a base

level judge advocate (AFS) has an AFSC of 51J3. The directory of enlisted/officer classifications and lists of all currently valid enlisted AFSCs can be found on the web at: https://gum-crm.csd.disa.mil/. Policies and procedures pertaining to classifying Air Force personnel on active duty also apply to Air National Guard personnel not in active military service.

**RECLASSIFICATION**

Upon entry to service, a member is awarded an initial AFSC and then, typically, receives education and training and is

reclassified as he or she progresses. Qualifications for award of subsequent AFSCs for ANG personnel must be con-

ducted using the same standards applicable to active force personnel insofar as possible. In addition to a traditional pro-

gression track, other changes along the way may require the member to be reclassified and retrained. If you do have a

member who is removed from an AFSC or whose AFSC is modified, they will need to be temporarily classified with a Re-

porting Identifier number.

**TRAINING**

Training and education may be gained by inactive or active duty training, completing formal military courses, civilian ex-

perience, or civilian education. Commanders use their Unit Education and Training Manager (UETM) to coordinate edu-

cation and training opportunities for unit personnel, help ensure timely progression, and identify changes requiring ac-

tion, such as loss of a position on the Unit Manning Document (UMD). The Force Support Squadron (FSS) provides a

Base Education and Training Manager (BETM) who is the Commander's and UETM's main POC for reclassification and

training questions. Other valuable resources include your base Retention and Recruiting offices. For instance, most Re-

tention offices have a database of enlisted ASVAB scores and can help identify AFSCs that the member is eligible to re-

train into. Each member must take responsibility for advancing in his or her own training. Commanders should realize

that the UETM will have numerous training schedules to organize, and less self-motivated individuals in the unit can get

lost in the shuffle. To help avoid this pitfall, a commander should encourage supervisors to actively help younger or less

experienced members train and progress.

_**Air National Guard Commander's Legal Deskbook**_

22

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-3 AFSC Reclassification and Training**_

_**Page 2**_

**PUNITIVE OR ADMINISTRATIVE ACTION**

Commanders should not take punitive or administrative action against airmen solely because of their failure to remain

qualified in an AFSC. There are a host of reasons why a member may fail to remain qualified in his or her AFSC, such as:

removal of an AFSC from the enlisted or officer directory, failure to progress in OJT, medical or physical restrictions, loss of security clearance, or cross-training. Commanders may consider downgrading an individual's AFSC under certain conditions, such as lack of recent performance, a reduction in grade, substandard performance, or failure to maintain manda-

tory qualification standards other than by reason of physical or medical incapacity. Counseling or other administrative

action may also be appropriate for cases of unsatisfactory performance, but punitive action will only be appropriate when

there is evidence of a violation of the state code or UCMJ (depending on the status of the ANG member). Consult your

Staff Judge Advocate for assistance when considering punitive and administrative actions.

**CONCLUSION**

Reclassification and training questions are a normal and constant concern for every commander. Commanders should

know what the unit manpower needs are, be aware of individual and personnel changes, employ an active Unit Educa-

tion and Training Manager (UETM), and encourage supervisor involvement to help manage these important personnel

issues.

_**KWIK-NOTE: Questions concerning AFSC reclassification should be coordinated through the BETM at your MPF. Contact**_

_**the Staff Judge Advocate when contemplating AFSC-related disciplinary action.**_

**RELATED TOPICS:**

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**SECTION**

Reporting Identifiers

1-34

Administrative Demotion of Airmen

24-2

Quality Force Management Actions

24-12

_**Air National Guard Commander's Legal Deskbook**_

23

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-4 ANG Assistants**_

_**Page 1**_

**ANG Assistants**

**Updated by Colonel Monique J. DeSpain, January 2018**

**AUTHORITY:** The authority for NGAP is derived from NGB-GOMO and the Director, Air National Guard. References to

the program are not in any current AF or ANG instruction or pamphlet; however, the following historical references,

now rescinded, may be helpful: ANGI 38-101, _State Headquarters Manpower/Organization Guide_ , Para 2.1.1.1, and ANGPAM

36-15, _Air National Guard Assistant Program_ (1 Oct 85). For current information, go to http://www.ang.af.mil/Careers/ and also refer to the _National Guard Assistant Program Air National Guard Judge Advocate Assistant Orientation Guide_ , maintained by Counsel to the Air National Guard Readiness Center and _ANG Commander's Legal Deskbook_ Editor.

**PURPOSE**

The Air National Guard (ANG) Assistant Program is designed to develop leaders in the ANG JAG Corps, provide liaison

between the Active Air Force and the Air National Guard and ensure readiness of all ANG legal offices. It enhances under-

standing and cooperation within the Total Force and provides a means through which communication, ideas and recom-

mendations can be transmitted; policies and procedures reviewed; and challenges resolved between the National Guard

Bureau (NGB) and the gaining major air commands, separate operating agencies (SOA) and other organizations for

which positions have been approved. National Guard Assistant Program positions are determined by NGB-GOMO and

NGB-HR and change on occasion to meet current needs. A current list of the NGAP positions can be found at the _Guide_

referenced above. Open positions are posted on the referenced website.

**DUTIES OF ASSISTANTS**

Specific duties vary with each assistant position. Duties may include but are not limited to the following:

Serve as advisor to the organization to which assigned in the Air National Guard program, specifically to the active-duty

command staff judge advocate or equivalent.

Maintain frequent and regular contact with Air National Guard leadership and agencies and ANG units, particularly

those gained by the MAJCOM to which the ANG assistant is assigned, to enhance understanding and rapport between

the ANG and the organization of assignment and ensure ANG JA requirements and missions are met.

Review policies and programs affecting relationships between the active-duty organization of assignment and the ANG

and make recommendations on proposals affecting the interface, policy, operations and utilization of ANG forces.

Develop and maintain active association with community and government leaders to facilitate effective working relation-

ships among such persons, the Air Force and the Air National Guard.

Develop, conduct and/or participate in training and indoctrination programs to broaden familiarity with the mission, poli-

cies and procedures of the ANG and the active-duty force under the Total Force policy.

Conduct special studies and analyses on issues of mutual interest to the ANG and the organization of assignment.

Serve at protocol and official functions as requested.

Serve as a member of the ANG JA Leadership Council.

Along with the above, ANG assistants assigned to Major Commands (MAJCOMs) should perform the following duties:

_**Air National Guard Commander's Legal Deskbook**_

24

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-4 ANG Assistants**_

_**Page 2**_

Coordinate with the functional NGB division/office when NGB staff assistance is needed, i.e., accompany on trips, pro-

vide briefings, point papers or administrative support.

Prepare and provide quarterly schedule of proposed upcoming activities to the NGAP leadership and state leadership. Pre-

sent a recap of actual accomplishments at the end of each quarter.

Attend semi-annual ANG JA Leadership Council meetings.

Attend the senior commanders' conference held in the fall.

Monitor operations readiness of ANG units gained by MAJCOM of assignment, be cognizant of capabilities and limita-

tions and provide recommendations and assistance to the MAJCOM Commander and Director, ANG, on actions needed

for improvement.

Monitor safety records of MAJCOM-gained ANG units and make recommendations toward reducing the accident rate

and potential.

Monitor conversions of MAJCOM-gained ANG units and make recommendations to support these conversions.

Monitor the participation of MAJCOM-gained ANG units in readiness exercises and deployments, act as liaison between

NGB and MAJCOM staff and provide recommendations as appropriate.

Rating of the ANG Assistant is performed by the active-duty SJA to whom the assistant is assigned. Most administrative

functions to support the assistant are performed by the state to which the assistant is attached.

_**KWIK-NOTE: ANG Assistants are invaluable liaisons between the Air Force and the Air National Guard, and provide neces-**_

_**sary support and mentors to the ANG legal staffs in the field. The NGAP Assistant serves as the ANG Ambassador in many**_

_**forums and facilitates communication, cooperative relationships and thus the preservation and allocation of valuable re-**_

_**sources.**_

**RELATED TOPICS:**

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**SECTION**

Judge Advocate Training Regulation

17-6

Staff Assistance Visits - Judge Advocate

17-16

TJAG's ANG Council

17-17

_**Air National Guard Commander's Legal Deskbook**_

25

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-5 Assignments**_

_**Page 1**_

**Assignments**

**Updated by Lt Col Jeffrey Knickerbocker, June 2014**

**AUTHORITY:** ANGI 36-2101, _Assignments Within the Air National Guard_ (10 April 2012); AFI 36-2110, _Assignments_ (23

September 2009; Incorporating through change 2, 8 June 2012).

**PURPOSE**

Assignments within the Air National Guard are regulated by ANGI 36-2101. Generally, the rules therein apply equally to

officers and airmen. AFI 36-2110 only applies to ANG officers and enlisted members when on extended active duty

(EAD). These authorities were recently updated to reflect new guidelines for the reassignment of Air Force members

who were sexually assaulted. The primary purpose of the Air National Guard assignment system is to assign ANG Offi-

cers and Airmen to enhance unit effectiveness for sustained mission accomplishment and to meet the personnel resource

needs of each ANG unit. The primary objective of the system is to attain and maintain 100% manning of all Unit Man-

power Document Guard (UMDG) positions. All ANG assignments will be made on a nondiscriminatory basis. Long-

range assignments planning must be undertaken to maintain the operational effectiveness of the Air National Guard.

**CRITERIA AND RULES**

All assignments within the ANG will be consistent with the classification instruction and procedures contained in AFI

36-2101, Military Personnel Classification Policy (Officers and Airmen) and consistent with enlistment, appointment,

promotion, demotion, retention, and separation procedures outlined in applicable United States Air Force (USAF) and

ANG directives. Unit commanders will select personnel for assignment to authorized UMDG positions consistent, when

possible, with individual AFSC, skill level, and grade to meet unit manpower needs. Each unit will provide assignment

change data to its servicing MPF. Commanders and MPFs must work together to fill all MDG positions, either through

reassignment or through recruiting. Do not leave positions vacant. Positions vacant for more than 30 days are considered

open for recruiting unless it meets an authorized exception. Assignments of UMDG vacancies must be made in conjunc-

tion with state and unit personnel force management plans. Military technicians and military duty personnel must be

assigned as the position incumbent to a military UMD position compatible with their full-time duties and responsibili-

ties. Under no circumstances will military technicians or AGR personnel be assigned in an excess status without written

approval from ANG/DP. Nepotism is not permitted. Family members may be assigned to the same unit, however, where

there is no preferential treatment or real or potential conflict of interest. Additional restrictions for assignment of family members listed in ANGI 36-2101, para. 2.4, include that no family member may be assigned to a unit commanded by another family member (or to command a unit with a family member in it), family members must be separated by at least

two levels of supervision, and they may not be in each other's rating chain as a 1st or 2nd level rater/reviewer. The prohibition on commanding family members also precludes assignment as a command chief master sergeant or first sergeant.

Although fitness for worldwide duty is required for each member, temporary deferments may be granted for conditions

that are expected to be resolved within a 12-month period. ANG members in the intelligence field may not be assigned

to worldwide locations where they previously served as members of the Peace Corps. No waivers will be considered. Air

Force Reserve IMAs may be assigned to Air National Guard units for training with the approval of the Adjutants General,

but they do not have to be reported in the ANG unit's strength.

When such individuals are attached, the provisions of AFMAN 36-8001, Reserve Personnel Participation and Training

Procedures, must be followed. Physicians may be appointed as excess to any existing physician position, other than a

medical facility commander position. This exception does not apply to Judge Advocates, Chaplains or other officer catego-

ries, but see ANGI 36-2101 for additional exceptions that may apply. Women are restricted from assignments with a pri-

mary mission of direct ground combat, or collocation with same. Women applying for entry into direct combat skills will

be reviewed on a case-by-case basis.

_**Air National Guard Commander's Legal Deskbook**_

26

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-5 Assignments**_

_**Page 2**_

Assigning members in excess or overgrade status may be done under specifically enumerated circumstances. See ANGI

36-2101, para 2.20 and Chapter 4, for a discussion of the specific requirements for assignment in excess or overgrade

status. Members so assigned must acknowledge their awareness of that status and possible impacts of the assignment on

NGB 36-11. Under various statutes and regulations, a sanctuary zone exists for members with at least 18 but less than

20 years of creditable service. Generally, these members may not be involuntarily separated without cause prior to eligi-

bility for retired benefits. There are many detailed provisions relating to the sanctuary zone.

**CONCLUSION**

Although assignments within the Air National Guard are generally within the purview of the Directorate of Personnel,

commanders are urged to consult with their servicing judge advocate for interpretations of these policies or on poten-

tially sensitive questions. Errors in assignments which are prejudicial to individuals may become the subject of later cor-

rective action, at significant expense to the government.

_**KWIK-NOTE: Long-range assignment planning is a tool for maintaining the operational effectiveness of the Air**_

_**National Guard.**_

**RELATED TOPICS:**

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**SECTION**

Promotion of ANG Airmen

1-30

Promotion of ANG Officers

1-31

AFSC Reclassification and Training

1-3

Selective Retention in the Air National Guard

1-36

ANG Assistants

1-4

_**Air National Guard Commander's Legal Deskbook**_

27

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-6 Board for Correction of Military Records**_

_**Page 1**_

**Board for Correction of Military Records**

**Updated by Lieutenant Colonel Bradley Ball, January 2018**

**AUTHORITY:** 10 U.S.C. 1552, _Correction of military records: claims incident thereto_ ; DoDD 1332.41, _Boards for Correction of_ _Military Records and Discharge Review Boards_ ; AFPD 36-26, _Total Force Development_ ; AFI 36-2603, _Air Force Board for Correction_ _of Military Records_ (18 Sep 2017). _See also_ the AFBCMR reading room for decisions at http://boards.law.af.mil.

**OVERVIEW**

The Air Force Board for Correction of Military Records (AFBCMR), acting on behalf of the Secretary of the Air Force

(SAF), considers applications for correction of a military record to correct an error or remove an injustice.

Examples of actions by the AFBCMR may include:

Upgrade discharge characterization ( _e.g._ , "general" to "honorable").

Change a discharge to or from medical retirement.

Change reenlistment codes.

Remove inaccurate performance evaluations or other damaging documents from a member's service record.

Reinstate to active duty.

**ELIGIBILITY**

Current and former active duty and total force members, as well as their current and former heirs and dependents, may

apply. In addition, current and former civilian Air Force employees may apply, except regarding civilian employment mat-

ters. The AFRBA receives approximately 15,000 cases annually from actively serving total force Airmen - active duty, Air

National Guard, Air Force Reserve and civilian employees - veterans and their families.

**PROCESS**

Applicants initiate the process by submitting DD Form 149, _Application for Correction of Military Record_ , along with supporting statements or records. New in late 2017, those seeking to submit applications to the Air Force Board for Correction

of Military Records ( as well as the Air Force Discharge Review Board and the DOD Physical Disability Board of Review)

can formally submit applications electronically via email with expanded electronic "drop box" capability, and additional web-based options available in the future. The agency will still accept paper application packages for those preferring traditional delivery methods. However, no matter which method applicants choose, the appropriate DOD form must be

signed, either by wet signature or electronically, and the agency may require additional validation of applicant signatures.

Applicants must apply within three years after the error or injustice was discovered, or reasonably should have been dis-

covered. The three-year requirement may be waived, and time on active duty does not count.

The Board may return any application without action if: the applicant is not eligible to apply; the application is clearly

frivolous; the applicant has not exhausted all available administrative remedies; or if the requested remedy is unclear or

is beyond the authority of the Board.

Applicants must provide sufficient evidence of material error or injustice. Usually, the best evidence includes statements

from persons who have direct knowledge or involvement, or copies of records that support the case.

Most applicants represent themselves. Applicants may also seek the assistance of a veteran service organization staff

member or lawyer at their own expense.

_**Air National Guard Commander's Legal Deskbook**_

28

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-6 Board for Correction of Military Records**_

_**Page 2**_

Where an applicant presents evidence of a diagnosis of PTSD or similar symptoms, and links the diagnosis to the underly-

ing misconduct, the Board will liberally consider discharge characterization upgrade requests. Further, the Board ensures

confidentiality in reviewing applications of victims of sexual assault, and considers any related physical and psychological factors.

Applicants may request a hearing before the Board. The Board has the sole discretion to determine whether to grant a

hearing or to make a recommendation solely on the records presented.

After the application is received, one or more offices may prepare an advisory opinion on the applicant's case. This typi-

cally includes an "Air Force Evaluation." The AFBCMR will provide a copy of the advisory opinion to the applicant for

comment before making a decision.

Following a majority vote, the Board makes a final written recommendation to the SAF. If relief is granted, the applicant's

records will be corrected and finance personnel will review the case to determine if the applicant is due any monetary

benefits.

If the AFBCMR denies the case, the applicant may request reconsideration only if the applicant has new and relevant in-

formation to submit in support of its case. Veterans can also appeal AFBCMR decisions in federal court under the Admin-

istrative Procedure Act within six years.

**DISCHARGE UPGRADES: AIR FORCE DISCHARGE REVIEW BOARD**

In most cases, service members seek to correct their DD Form 214, _Certificate of Release or Discharge from Active Duty_. The DD 214 includes the characterization of service and reason for discharge.

An important concern for veterans pursuing a discharge upgrade may be eligibility for benefits from the Department of

Veterans Affairs (VA). A discharge upgrade may qualify a veteran for VA medical care, disability compensation benefits,

educational benefits, home loans, or a pension.

Discharge upgrade cases may proceed through either the Air Force Discharge Review Board (AFDRB) or the AFBCMR.

The AFDRB affords former Air Force members the opportunity to request a review of their discharge within 15 years of

the date of separation. Veterans discharged or dismissed by general court-martial are not eligible. If a veteran is not eligible to apply through the AFDRB, the AFBCMR is the sole remaining option.

The non-statutory Air Force review boards adjudicate a wide-variety of decisions on behalf of the secretary of the Air

Force and are comprised of 10 appellate-level administrative review boards (eight on behalf of the secretary of the Air

Force and two on behalf of the Secretary of Defense).

_****_

**WHERE TO GET HELP**

AFPAM 36-2603 is short and instructive, and may answer most of your questions. Many veteran service organizations

have staff members who will assist with applications to the AFBCMR.

_**KWIK-NOTE: The Air Force Board for Correction of Military Records may correct any military record where, in its judg-**_

_**ment, such action is necessary to correct an error or to remove an injustice.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Access to Military Records

14-4

_**Air National Guard Commander's Legal Deskbook**_

29

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-7 Boards and Courts-Martial - A View from the Inside**_

_**Page 1**_

**Boards and Courts-Martial – A View from the Inside**

**Updated by Colonel Mary A. Enges, February 2018**

**AUTHORITY:** Manual for Courts-Martial (MCM); Rules for Courts-Martial 912, MCM. _Note_ that the main body of this article is written from the personal perspective and experience of a former ANG Major General, who served as a Director

of Operations, Air Commander and Group Commander, an Assistant AG for Air and Adjutant General (TAG). 

## INTRODUCTION

This topic is included in this _Deskbook_ for one reason: To acquaint all potential ANG Board or Court-Martial members with an insider's view of what to expect at one or both of these proceedings. By having some familiarity with what to expect, it is hoped that service as members of these proceedings will be more meaningful to both the member and the

cause of seeking the truth.

The subject of this topic is broken into two parts: Board service and service as a member of a court-martial (jury). While

courts-martial in the ANG are not nearly as frequent as board proceedings, the material provided on court-martial serv-

ice is similar to what is provided to prospective court members on active duty. It is written from a Staff Judge Advocate's

perspective, in the form of a written "conversation" with prospective court members. It should acquaint them with their

duties as court members and explain the nature of the proceedings and the procedures used. Some of this material is also

applicable to Board proceedings, especially the information concerning qualifications to serve.

The material provided on Board proceedings is from the personal perspective of an officer who served as President of an

ANG Flying Evaluation Board (FEB). While the insights and thoughts expressed are in the factual setting of an FEB and

from one who served as the Board's President, many of them are applicable to service on any kind of board, in any fact-

finding or adjudicative capacity. Because boards are far more prevalent in today's ANG, that part of the topic is presented

first.

All commanders are urged to share the information in this topic with any member of their unit who will serve as either a

Board member or member of a court-martial.

**BOARD PROCEEDINGS - A PRESIDENT'S PERSPECTIVE**

A few thoughts from the President of a Flying Evaluation Board:

Nothing sneaks up on you with more stealth than the realization of what you are really up against when you find your-

self calling an FEB into session ... as its President. Most of the boards we chair are administrative in nature, with few surprises, fewer risks and rarely a challenge to our authority. We fully understand the process at hand, and have a high com-

fort level concerning our ability to skillfully guide the proceedings to a successful conclusion.

Flying Evaluation Boards are different. There is a lot at stake for both the unit and the respondent. (In the FEB in which I served, the respondent and his lawyer were males, so I will use the masculine pronoun to keep the personal tone of my

experience even though my thoughts have more general applicability.) If the case involves an alleged lack of competence,

the unit will likely be determined to divest itself of this "accident-waiting-to-happen" and will not yield an inch if Flight Safety is the issue. The wing or group commander may have even - improperly - expressed a view on the desired outcome of the FEB. The respondent is equally determined in his effort to preserve a number of things: his honor, his flight

pay (which can amount to a considerable sum over a working lifetime), his promotion potential (rated officers have more

opportunities), and, perhaps most important, his dream, upon which he has focused and for which he has worked very

hard for several years.

Candidates standing before a promotion board represent themselves; if they fail, they will get another chance. Besides,

_**Air National Guard Commander's Legal Deskbook**_

30

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-7 Boards and Courts-Martial - A View from the Inside**_

_**Page 2**_

they know it could be counter-productive in the long run to be seen as anything less than a team player. The FEB respon-

dent, in contrast, is playing by another set of rules. His back is to the wall. He will do whatever he thinks is necessary to win. He will hire a lawyer.

The lawyer will very likely be someone who specializes in government hearings, may well have been a crew member him-

self, and certainly has represented clients at similar boards. He will raise questions about the training and evaluation

process that may be difficult to answer, and will put others on the defensive. But when the final verdict is reached, you

will better understand just how necessary his questioning was to help ensure clarity and objectivity.

You will serve unit interests and those of the respondent best if you think of this process you are about to begin as a

search for truth rather than a contest of wills. You have no rational choice other than being dispassionate and open-

minded, regardless of any personal bias you bring to the table, or any outside interest or pressures or unlawful command

influence in the background. Everyone in the room has arrived with their view of the desired outcome, but the profes-

sionals will set their biases aside and play their designated role for the duration of the proceedings. Most importantly, it's a matter of survival for you, the President. I can still clearly remember days as a member of my high school debating

team where I would work to get my adversary emotionally involved in the argument. If successful, I would be a sure win-

ner. In an FEB (or any other board proceeding), you CANNOT become emotionally involved. You CANNOT lose your

"cool." Not once.

Your closest ally is not your OPS officer (who likely will have a position on the rated potential of the respondent). In-

stead, it's your JAG (the board's legal advisor). Choose carefully. Your professional life will depend every bit as much on

his skill in the board room as his physical life depends on your skill at the aircraft controls. Resist the urge to be a Lone Ranger. Your instincts during the Board proceeding may be as faulty at times as your sense of balance while flying in instrument conditions. You trust your instruments, so trust your JAG. Ask him to walk you through the entire process well

before the event. The greater your knowledge, the higher your comfort level and the better your performance. Do not as-

sume this will be easy.

During the proceeding, you may be personally challenged by an attorney as I was. You may get "hung up" on a point of

law or interpretation of a regulation. And you will certainly be confronted by situations you did not expect and you do

not instinctively know how to handle.

But all will be well if you never lose sight of the fact that YOU set the pace of this Board. If you are unsure of anything at any time, don't try to "wing it." Take your time, consult with your JAG and call a recess if necessary. The more obvious it is that you are well aware of your limitations and able to compensate, the less likely it is the opposing attorney will try to take advantage of those limitations.

Be prepared for the process to take more time than you assumed it would, and be ready to conduct the Board during

other than normal duty hours. The Board I presided over ran from a Friday morning until 0200 Sunday morning. We

agreed to this schedule because the attorneys for the respondent were from out of town and could fit his case into their

busy schedule in no other way. They were able to charge their young client a more favorable rate by working when their

local courts were not in session. Had we not been willing to work long hours over the weekend, the respondent could

not have afforded private legal counsel. A little compassion never hurts.

When the arguments are over and all the evidence is in, you will be more sympathetic to juries who seem to take an un-

reasonably long time reaching their verdict. What seemed only a few days ago to be a simple open-and-shut case had be-

come unexpectedly complex. After concluding the Board proceedings to begin our deliberations, we spent hours discuss-

ing the details, while trying our best to get the issue in clear focus and in perspective. The decision we reached is not important here. When we walked back into that Board room to face an exhausted and emotionally drained respondent, we

were confident our decision was fair and well-supported by all the evidence the experts could muster.

The experience of presiding over a Board where so much is at stake for all concerned is one you will remember for years.

_**Air National Guard Commander's Legal Deskbook**_

31

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-7 Boards and Courts-Martial - A View from the Inside**_

_**Page 3**_

If you have come well prepared, maintained an open mind, taken full advantage of your JAG's guidance, _****_ paced yourself well, been flexible and understanding of the respondent's problems and demonstrated by your actions that your only mission is to make a decision well supported by the facts and circumstances, you will walk away from the experience with a

lasting sense of satisfaction.

**SERVING AS A COURT MEMBER**

**Generally**

At some time in your military career you may be chosen to sit as a member of a court-martial (the equivalent of a civilian

juror). This is a duty you should not take lightly.

When you are selected as a member of a court-martial you will be asked to complete a data sheet similar to the "Court

Member Questionnaire" set forth below. This data sheet provides the counsel for both sides with information about a

member's personal background which enables them to determine whether there could possibly be a ground for challenge

for cause against a member. It is not intended to pry into the personal life of a member for any ulterior purpose. The

authority for obtaining this information is found in Rules for Court-Martial 912, Manual for Court-Martial (MCM).

A court-martial panel member may act as a fact-finder, sentencing authority or both. In a "not guilty" plea case, you will

determine guilt or innocence and, if found guilty, impose an appropriate sentence. In a "guilty" plea case, you will only

be required to determine an appropriate sentence for the offense(s) the accused was found guilty of by the Military

Judge.

You will be disqualified from a court-martial panel if you are the accuser, witness, counsel, reviewer or the investigating

officer on the case.

Both government and defense counsel are entitled to ask you questions at trial to discover facts that could disqualify you

as a court member. Listen closely and carefully during the trial to testimony by the witnesses. Read thoroughly the docu-

ments presented to you. The judge is there to assist you. You are required to follow the judge's instructions and direc-

tions.

Next is a letter you may, in similar form and content, receive from the convening authority's Staff Judge Advocate upon

your selection as a court member. The letter outlines what some of your duties will be, why you were selected and some

things you may expect from service as a court member.

Enclosed with the letter will be the Convening Authority's order appointing you to the court-martial and a Court Mem-

ber Questionnaire.

_****_

**The Letter**

1. The commander, _______________, has personally selected you to serve as a member of the (General) (Special) Court-

Martial tentatively scheduled to convene at ____________ Air (National Guard)(Force) Base, on (date). Uniform will be

Service Dress (Blouse with (short)(long) sleeve shirt and tie).

2. Only personnel of the highest caliber are selected for duty as a court member. (Section) of the (State) Code of Military

Justice requires the Convening Authority to choose as members of a court only those individuals who, in the Convening

Authority's opinion, are "best qualified for the duty by reason of age, education, training, experience, length of service

and judicial temperament." Duty as a court member is paramount; it is not an additional duty, and it takes precedence

over virtually all activities, except for mission-essential operational commitments that cannot be delegated to anyone

else.

_**Air National Guard Commander's Legal Deskbook**_

32

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-7 Boards and Courts-Martial - A View from the Inside**_

_**Page 4**_

3. Individuals selected as court members may only be excused from attending court when the commander personally ex-

cuses that individual. Any requests for excusal should be based on good cause such as extraordinary military commit-

ments or acute personal hardships, and should be forwarded to the Convening Authority through the Staff Judge Advo-

cate. Members selected for court-martial duty should not depart the base on leave or TDY without coordination with the

Staff Judge Advocate.

4. One fact worth stressing is duty as a court member is always very tentative in nature. Even when you have been se-

lected as a court member in a particular case, there is always the possibility the accused will request a trial by military

judge sitting alone. In such an event, selected members would not be required to attend the court. Because such a re-

quest must be approved by the military judge during preliminary trial proceedings, whether the accused will be tried by

judge alone or by court members may not be known until the day of the trial.

5. To minimize inconvenience to court members, members may be on a 15-minute standby the day of trial so that they

will not have to wait around while the attorneys go through their preliminary proceedings before the military judge.

Thus, it is essential that you keep my paralegal informed of the telephone number where you can be reached on the day

of the trial.

6. I sometimes get requests from court members to brief them on their duties. Under the current Manual for Court-

Martial, the duties of a court member are very similar to the duties of members of a jury in a civilian criminal trial. Basically, all that you need to do is to come into the court with an open mind and follow the instructions given you by the

military judge. In this regard, it can be said that legally, the less a court member knows about a case before it is tried, the better. Accordingly, when a court member asks me if I can tell what the case the member is sitting on is about, the answer is no.

7. Once you have been selected as a court member for a specific trial and have weathered any possible delays in the trial,

challenges, and so on, you can look forward to a unique and in-depth view of our military justice system. Duty as a court

member is a serious matter and one which I think you will find to be a most interesting challenging assignment. If you

have any questions not answered by this letter about your potential duties as a court member, I will be glad to answer

them to the extent permitted by law.

8. The data sheet you fill out will be maintained on file in the Legal Office. This data sheet should include your projected leaves, TDYs and the number of courts or discharge boards you served on previously. This information is of the utmost

importance; please return it to the Legal Office as soon as possible.

9. I appreciate your support in this matter, and look forward to having you serve as a member of the panel.

______________________________________

Staff Judge Advocate

2 Attachments

1. Special Order (omitted here)

2. Data Sheet (Questionnaire)

**Court Member Questionnaire**

The Manual for Courts-Martial requires we provide the following information to the defense counsel. Please take a mo-

ment and provide us with the following biographical data and return it to the Legal Office within fifteen (15) work days.

_**Air National Guard Commander's Legal Deskbook**_

33

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-7 Boards and Courts-Martial - A View from the Inside**_

_**Page 5**_

A. Name: ____________________________________________________.

B. Sex: Male Female

C. Race: _________________________.

D. Marital Status: __________________.

1. Spouse's name: ______________________________.

2. Dependents:

NAME: _______________________, SEX: ________, AGE: ____

NAME: _______________________, SEX: ________, AGE: ____

NAME: _______________________, SEX: ________, AGE: ____

NAME: _______________________, SEX: ________, AGE: ____

E. Home of Record: CITY: ________________________, STATE: ______________

F. Education & Schooling (college):

1. NAME OF SCHOOL _____________________, YR GRAD ________, DEGREE _______

2. NAME OF SCHOOL _____________________, YR GRAD ________, DEGREE _______

G. Past Five Duty Assignments:

DUTY TITLE BASE STATE/COUNTY YEARS

1. ________________, _______________, ______________, ___-___

2. ________________, _______________, ______________, ___-___

3. ________________, _______________, ______________, ___-___

4. ________________, _______________, ______________, ___-___

5. ________________, _______________, ______________, ___-___

H. Any Past Discharges From the Service:

1. BRANCH OF SERVICE ____________________, TYPE ___________, YEAR _____

2. BRANCH OF SERVICE ____________________, TYPE ___________, YEAR _____

I. Number of Courts Served on Previously: ________________________

J. Number of Boards Served on Previously: ________________________

_**KWIK-NOTE: ANG members should gain insight into their upcoming service on Boards and Courts-Martial.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

**SECTION**

Officership

1-24

Command Influence

2-2

Evidence - Differing Standards and Burdens of Proof

8-4

Courts-Martial

8-15

Boards - Investigative

16-4

Flying Evaluation Boards

13-6

Worldwide Duty Medical Evaluations

19-11

_**Air National Guard Commander's Legal Deskbook**_

34

_**Chapter 1, Administrative and Personnel Matters**_

_**1-8 Conditional Release**_

_**Page 1**_

**Conditional Release**

**Updated by Lt Col Jeffrey Knickerbocker, June 2014**

**AUTHORITY:** AFI 36-3209, _Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members_ (14 Apr 2005; Incorporating through change 3, 20 Sep 2011); DoDI 1205.05, _Procedures for Transfer of Members Between Reserve and_ _Regular Components of the Military Services_ (30 Mar 2012). 

## INTRODUCTION

All members of the Air National Guard must satisfactorily participate in all scheduled training to fulfill their statutory

military obligations, service agreements, or current enlistment contracts. However, there are times when members seek

to leave their current ANG unit of assignment and re-affiliate with another unit in the National Guard or in another com-

ponent or another branch of service of the Armed Forces of the United States. Before a member can join another unit

they must be released from their current unit with a completed conditional release.

Members planning to re-affiliate with another unit or enlist in another component of the Armed Forces must continue to

satisfactorily participate in UTAs and other required training of their current unit of assignment until they have been re-

leased from their current unit and enlisted in the new unit or component. Treat those members who do not continue to

participate as you would any unsatisfactory participant, and use the full range of quality force management actions appro-

priate under the circumstances.

**CONDITIONAL RELEASE**

Approving a conditional release excuses the member from training with the unit of assignment before the member's expi-

ration of term of service (ETS). It is given on condition that within 60 days, the member will enlist in another unit.

NOTE: The 60 days can be extended with approval from the losing commander.

What usually happens is that your member decides to move out of the commuting distance to your unit (losing unit).

The member speaks with the gaining unit about enlisting. The gaining unit must send the losing unit a DD Form 368,

Request for Conditional Release or an AF Form 1288, Application for Ready Reserve Assignment, requesting that the

individual be released so they can enlist in the new unit. The approving authority for a conditional release is the TAG or

commander having custody of field record group (FPRGp)

Unless and until the conditional release is approved, the member must satisfactorily participate in all required training

even if the member has moved beyond the commuting distance.

**MONITOR PROGRESS**

In addition to the potential unsatisfactory participation problems, your FSS must keep track of the member's affiliation

progress with the gaining unit to avoid having the member remain on your manning document beyond the required pe-

riod, and thereby prevent the enlistment of a replacement member.

**ACTIONS AFTER 60 DAYS**

At the end of the 60-day period, one of two things will have happened:

1. You will have received confirmation of the member's new enlistment, and the member will be discharged from the Air

National Guard of your state; or

2. If the member has not enlisted in the other unit, you may:

_**Air National Guard Commander's Legal Deskbook**_

35

_**Chapter 1, Administrative and Personnel Matters**_

_**1-8 Conditional Release**_

_**Page 2**_

a. Arrange for make-up training and retention in your unit if the member wishes and you are convinced the member can

and will satisfactorily participate in required training despite the commuting distance; or

b. In absence of the mutual desire or the ability of the member to remain with your unit, you will process the member

for discharge; or

c. You will grant an extension and allow the member more time to affiliate with another unit.

**CONCLUSION**

This area is usually routinely handled by your FSS, but should you encounter any problems with interpreting the regula-

tions in light of the particular factual scenario involved, consult your staff judge advocate before initiating discharge action. Your staff judge advocate should review the discharge actions of members who do not enlist in the new unit for le-

gal sufficiency.

_**KWIK-NOTE: Keep track of members who are "conditionally released," and promptly take the appropriate action upon expi-**_

_**ration of the release period.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Absent Military Members

1-2

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Assignments

1-5

Legal Reviews

17-11

Palace Chase

1-26

Quality Force Management Actions

24-12

Recruiting – Consolidation of Air Force, Air Force Reserve and Air National Guard Programs

1-32

Relationship with Other Military Components

11-6

Stop-Loss

20-6

Transfer to the Individual Ready Reserve (IRR)

1-37

Unsatisfactory Participation

1-40

_**Air National Guard Commander's Legal Deskbook**_

36

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-9 Conscientious Objectors**_

_**Page 1**_

**Conscientious Objectors**

**Updated by Lt Col Jeffrey M. Knickerbocker, June 2014**

**AUTHORITY:** DODI 1300.06, _Conscientious Objectors_ (5 May 07); AFI 36-3204, _Procedures for Applying as a Conscientious Objector_ (15 Jul 94). _See also_ the Opinions of The Judge Advocate General of the Air Force (OpJagAf). 

## INTRODUCTION

A Conscientious Objector (CO) is a member who, by reason of conscientious objection, sincerely objects to participation

of any kind of war in any form, including those whose convictions permit military service in a noncombatant status. A

conscientious objection is a firm, fixed, and sincere objection by reason of religious training and belief (or other system

akin to religion) to participation in war in any form, or the bearing of arms. A CO is classified as either Class 1-0, (ob-

jects to participation of any kind in war in any form) or Class 1-A-0 (objects to participation as a combatant in war in any form, but whose convictions permit military service in a noncombatant status).

**NATIONAL POLICY**

Congress has recognized that deep and sincerely held convictions against the use of force may place a citizen in a di-

lemma between conscience and patriotic obligation. Therefore, Congress provided a means whereby these citizens may

be restricted in duties (Class 1-A-0) or excused from their military obligation (Class 1-0) by receiving status as COs.

**APPLICATION**

An individual makes an application for CO status and requests either: separation based on conscientious objection (Class

1-0) or reassignment to noncombatant training and service based on conscientious objection (Class 1-A-0). The appli-

cant bears the burden of proof. The applicant must establish by clear and convincing evidence that:

The nature or basis of the claim falls under the definition of conscientious objections as described in AFI 36-3204.

The applicant's belief is honest, sincere, and deeply held.

The applicant's belief is by virtue of religious training or other belief system akin to religion.

The applicant opposes participation in war in any form or the bearing of arms.

**PROCEDURES**

Procedures for submitting, processing, and approving/disapproving an application for CO status are thoroughly outlined

in AFI 36-3204. The general procedural flow is as follows:

1. The member submits an application to his/her immediate commander (unless on EAD, then to servicing FSS)

paragraph 1.3 and Table 1);

2. FSS obtains required interviews with the chaplain and psychiatrist, counsels member on impacts of designation as a

CO, and forwards prepared case file to the IO (paragraph 2.7);

3. The appropriate commander appoints an IO who must be a judge advocate serving in active military service (para-

graph 3.1.3);

4. The IO conducts a hearing (non-adversarial in nature, although applicant may be represented by counsel, at his or her

own expense) and files a report with recommended action (paragraph 3.2, _et seq_ );

5. Applicant is notified of IO's recommendation and has opportunity to respond; _**Air National Guard Commander's Legal Deskbook**_

37

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-9 Conscientious Objectors**_

_**Page 2**_

6. The package then continues through appropriate channels at the wing level (paragraph 2.10) for legal review and rec-

ommendation by the commander who appointed the IO.

7. After completion, the file is forwarded through channels to HQ ANGRC/DPM for final disposition.

SECAF or a designated representative makes the decision regarding CO status for officer applicants. The final approval

decision for enlisted personnel is by ANG/DPP.

**COMMANDER'S RESPONSIBILITIES WHILE APPLICATION IS PENDING**

After a member requests CO status, any potential promotion is withheld or delayed because the member's potential for

future service is questionable. While a CO request is under consideration, a commander should make every effort to as-

sign applicants to duties that will conflict as little as possible with their asserted beliefs. However, the member remains

subject to the normal requirements of military service, including military discipline under the applicable state code or he

Uniform Code of Military Justice.

Note that the law provides that if a person is discharged on the grounds that he or she was a CO, all veterans benefits are

barred under 38 U.S.C. 5303. Recoupment of educational benefits and special pay or bonuses will also be made when ap-

plicable.

_**KWIK-NOTE: Once a member has requested Conscientious Objector status in accordance with the instruction, the request**_

_**should be promptly investigated and acted upon.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Quality Force Management Actions

24-12

_**Air National Guard Commander's Legal Deskbook**_

38

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-10 Family Care Plans**_

_**Page 1**_

**Family Care Plans**

**Updated by Lt Col Christine Lennard, February 2015**

**AUTHORITY:** AFI 36-2908, _Family Care Plans_ (1 Oct 14); AFI 36-3209, _Separation and Retirement Procedures for Air National_ _Guard and Air Force Reserve Members_ (14 Apr 05); AF Form 357, _Family Care Certification_ ; applicable state law. 

## INTRODUCTION

The accomplishment of the Air National Guard mission is predicated on the availability of trained and motivated people.

To achieve the force characteristics of responsiveness and flexibility, the Air National Guard must have people in the

right place at the right time, unencumbered and ready to perform the jobs for which they have been trained. Unless they

are specifically deferred or exempted, all members of the Air National Guard are expected to be available at all times to

perform a full range of military duties and assignments.

All Air National Guard members are responsible for making adequate family care arrangements in advance to ensure Air-

men are available for mobilization, a temporary tour of duty (TDY), to include no-notice or short-notice deployments),

recall, alert, extended-duty hours, shift work, or similar military obligations. In some cases, the member is required to

have a Family Care Plan formalized on AF Form 357.

While the Air National Guard will assist members with family care planning, personnel with family members have the

primary responsibility of ensuring they can fulfill their personal obligations to family and professional obligations to the Air National Guard.

**PLAN IN ADVANCE**

Advance planning is the key to family care arrangements. All Guard members with families must take the initiative to

use every military and civilian resource at their disposal to ensure their family members receive adequate care, support,

and supervision in a manner compatible with the member's military duties. Family care plans must cover all possible

situations, both short-term and long-term, and must be sufficiently detailed and systematic to provide for a smooth,

rapid transfer of responsibilities to designees during the absence of the military member. Several civilian and military

agencies are available to assist you and your supervisors and members in developing family care plans (for example, First

Sergeants, the Staff Judge Advocate's Office, Accounting and Finance, unit Chaplain, and the American Red Cross).

**BE AWARE OF RESPONSIBILITIES**

The installation commander ensures that unit commanders, first sergeants and FSS customer service personnel establish

procedures identifying all personnel requiring formal (written) FCPs. Current members of the Air National Guard must

be informed of the Guard's policy on the relationship between family care responsibilities and the accomplishments of

military duties and obligations. Members and potential members of the Air National Guard must be counseled by their

Commander or First Sergeant IAW AFI 36-2908 during in-processing and annually thereafter.

**WHO MUST FILE AN AF FORM 357**

In general, single parents, military couples, and unique family situations will require a Family Care Certification (AF

Form 357).

In cases of single member sponsors and dual-military couples with family members, no civilian spouse is available to ful-

fill family care responsibilities during the absence of the military sponsor(s). Nevertheless, these parents and sponsors

must be available to meet all their military obligations, and must document their family care plans on the AF Form 357.

Additionally, the commander or first sergeant may determine that certain members with civilian spouses have unique

family situations (for example, where the spouse is unable to provide care for family members or for themselves). These

_**Air National Guard Commander's Legal Deskbook**_

39

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-10 Family Care Plans**_

_**Page 2**_

members may also be required to document a family care plan on the AF Form 357. Any parent or sponsor who fails to

make family care arrangements permitting a full range of military duties will be subject to prompt command action.

**FAMILY CARE CERTIFICATION**

Military members certify on the AF Form 357 they have adequate arrangements for their families' care if and their mili-

tary obligations call them away from home. The non-military persons who will be responsible for the care are identified

on the form. Annually, the commander or first sergeant must personally review all AF Forms 357 on file.

Members should also be advised at the time they present the completed AF Form 357 to have a Special Power of Attor-

ney prepared with the assistance of the Judge Advocate's office. The Special Power of Attorney (POA) gives authority to

the temporary family care provider for such things as medical treatment, school decisions, and spending money received

from the military sponsor for the family member's support. This POA is generally known as an " en loco parentis" POA –

literally, "in the place of the parent." It should not be confused with guardianship. The effectiveness of this Special Power of Attorney is usually made contingent upon the member's mobilization, deployment, or otherwise being called away

from home because of military obligations.

**ENFORCEMENT OF RESPONSIBILITIES**

You and your unit supervisors should establish equitable duty schedules and unit procedures. Inequitable or inconsistent

scheduling to accommodate family care arrangements is disruptive to unit morale and also counterproductive. Consider

taking prompt command action with personnel whose continued failure to fulfill family care responsibilities, despite

counseling and assistance, interferes with performing their military obligations (AFI 36-3209). Military Justice actions

under state Codes may be appropriate in some cases; for example, where there is a refusal to provide the required infor-

mation amounting to willful disobedience of a superior, failure to obey a lawful order or regulation, or an AWOL.

_**KWIK-NOTE: The Judge Advocate's Office should be part of the advice and review process of all Family Care Certifications**_

_**to ensure they are legally sufficient and satisfy the requirements of AFI 36-2908.**_

_**KWIK-NOTE to SJAs: This topic should be made part of your Preventive Law program and Newcomer's Briefing. You may**_

_**need to consult state law for permissible or alternative family care arrangements.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Enlistment and Reenlistment

1-13

Newcomer's Briefing

1-22

Legal Assistance Program

17-8

Legal Reviews

17-11

Preventive Law Program

17-15

Personal Affairs Checklist

20-3

Pre-Mobilization Legal Counseling

20-4

Dependent Support

23-10

Financial Responsibility

23-12

Powers of Attorney

23-19

Counseling

24-7

_**Air National Guard Commander's Legal Deskbook**_

40

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-11 Disposal of Personal Property**_

_**Page 1**_

**Disposal of Personal Property and Effects**

**Updated by Lt Col Christine Lennard, February 2015**

**AUTHORITY:** 10 U.S.C. 2575, 9712; DODM 4160.21; AFPD 34-5, _Mortuary Affairs_ (13 Sep 13); AFI 34-511, _Disposition_ _of Personal Property and Effects_ (7 Jun 11); applicable state law.

**HOW WE GET THE PROPERTY**

Personal property and effects of Air National Guard members, civilian employees, residents of Air National Guard instal-

lations, and visitors on Air National Guard installations can come into the custody or control of the Air National Guard

under a variety of circumstances. These include when a member dies, becomes missing, detained or captured, is medi-

cally evacuated, hospitalized, or mentally incompetent, when duty status is declared as whereabouts unknown

(DUSTWUN), or property is simply lost, abandoned, or unclaimed.

**PERSONAL PROPERTY AND PERSONAL EFFECTS**

"Personal property" refers to all the personal possessions of the decedent. "Personal effects" include any personal item,

organizational clothing, or equipment physically **located on or with the remains** (or, for example, mentally incompe-

tent person).

**WHAT TO DO WHEN WE GET IT**

If there is a need to dispose of a member's personal property and/or effects, commanders should consult AFI 34-511,

their Judge Advocates and Mortuary Officers (MO), and applicable state statutes and regulations that govern the collec-

tion, inventory, safekeeping and distribution of such property. Determine the proper procedure to follow, which will de-

pend on the status of the member at the time of death (or other covered status) and whether the property is considered a

personal effect or personal property. The basics are as follows:

1. A Summary Court Officer (SCO) should be appointed to dispose of property for members who die on active duty

(Chapter 3). The SCO will:

a. Inventory the property (including providing clothing for burial to the proper person and removing/disposing of ques-

tionable property);

b. Dispose of ID cards and other military documents, as appropriate;

c. Dispose of mail, personal papers, funds and negotiable instruments;

d. Ship, pack or store property, as appropriate;

e. Otherwise dispose of property IAW AFI 34-511.

2. The MO (frequently the FSS/CC) handles and disposes of the personal effects. The MO secures property of missing,

detained, captured or DUSTWUN personnel and coordinates with the appropriate person in the case of medically evacu-

ated, hospitalized, or mentally incompetent personnel. The MO secures the property and effects of ANG or Dual Status

Technicians who die while not in a duty status. The MO will:

a. Collect, inventory, safeguard and store the member's property;

b. Ascertain appropriate persons to receive the property and effects.

**SPECIAL GUIDANCE**

Three key themes to remember:

1. Safeguard the property until it has been distributed to the proper person;

_**Air National Guard Commander's Legal Deskbook**_

41

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-11 Disposal of Personal Property**_

_**Page 2**_

2. Distribute that property only to the person who is authorized to receive it; and

3. Get written receipts showing the name, address, date and list of property distributed.

**CHECK STATE LAW**

AFI 34-511, 10 U.S.C. 2575 and 10 U.S.C. 9712 provide guidance on procedures for disposal of personal property

and effects of active duty Air Force members and other eligible persons. However, ask your JAG to evaluate state

law requirements. For example, some states may require a court order in certain circumstances before property may

be released.

**LOST, ABANDONED, OR UNCLAIMED PROPERTY**

10 USC 2575 and DODM 4160.21M (Chapter 4, paragraph 40) provide procedures for holding and disposing of

lost, abandoned, or unclaimed property outside of the situations described above. The installation commander is

responsible and typically delegates this responsibility to the Security Forces Squadron.

**KWIK-NOTE: Check applicable state law and the AFI on guidance for disposal of personal property and effects.**

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Absent Military Members

1-2

Report of Facts and Circumstances of Death

1-35

Personal Affairs Checklist

20-3

_**Air National Guard Commander's Legal Deskbook**_

42

_**Chapter 1, Administrative and Personnel Matters**_

_**1-12 Dress and Appearance**_

_**Page 1**_

**Dress and Appearance**

**Updated by Captain Joshua P. Nichols, January 2018**

**AUTHORITY:** AFI 36-2903, _Dress and Personal Appearance of Air Force Personnel_ (18 Jul 2011), MAJCOM and local supplements; 36-3014, _Clothing Allowances for Air Force Personnel_ (23 Nov 2015).

**THE STANDARD**

Each ANG and Air Force member must maintain a high standard of dress and personal appearance. This standard is com-

prised of five elements: neatness, cleanliness, safety, uniformity and military image.

The fifth element, military image, is a subjective but necessary element of the standard. The American public and its

elected representatives draw certain conclusions as to military effectiveness based on what they see; that is, the visual

image the Air Force presents. This image must instill public confidence and leave no doubt that airmen live by a common

standard and respond to military order and discipline.

**COMMANDER'S RESPONSIBILITIES**

Commanders must know the grooming standards in AFI 36-2903, Chapter 3, and ensure that these standards are main-

tained throughout the unit. A policy of strict conformance at the squadron level is the most effective means to ensure

uniform standards throughout the Air Force.

Because much of this area involves personal judgment, any nonconformity to these standards should be thoroughly docu-

mented. Minor infractions which become a pattern or habitual must be corrected either through disciplinary action or

administrative means.

State and federal courts have refused to review judicial challenges to Air Force dress and appearance standards, deferring

to "administrative discretion" of the services to set their own appearance standards.

Individual members procure and maintain all required uniform items, per AFI 36-3014. A clothing allowance is provided

for that purpose. Compliance with this requirement cannot be assumed, but will require periodic inspection. Routine

equipment reviews by Unit Deployment Managers can also help assure commanders that personnel are meeting this re-

quirement.

**MAINTAIN AND ENFORCE A UNIFORM POLICY**

To protect the right to enforce military regulations, a uniform policy must be followed. Few areas of military tradition are as important as bearing and the proper wear of the prescribed uniform. Minor infractions, left unchecked, could become

the standard unless AFI 36-2903 is strictly and uniformly enforced. Commanders should avoid any appearance of "selec-

tive enforcement" of the instruction.

Commanders have many options for dealing with nonconformance to Air Force standards. They may send the individual

home, denying participation with the unit until the appearance meets the standard. If the individual has been warned

that the standard is not met, and still comes to drill or other duty periods without improvement, the individual may be

punished for failure to obey a lawful order or regulation under the appropriate section of the punitive articles of a state's military law or regulations. As with any disciplinary infraction, document the infraction and counseling. Discharge from

the Air National Guard is the ultimate option in a well-documented case.

_**KWIK-NOTE: Commanders should strictly and uniformly enforce dress and appearance standards throughout their units.**_

_**Air National Guard Commander's Legal Deskbook**_

43

_**Chapter 1, Administrative and Personnel Matters**_

_**1-12 Dress and Appearance**_

_**Page 2**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Newcomer's Briefing

1-22

Officer Evaluation System

1-23

Pregnancy of ANG Personnel

1-29

Selective Enforcement

24-14

Issue Items and Equipment Turn-In

25-13

Training

26-2

_****_

_**Air National Guard Commander's Legal Deskbook**_

44

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-13 Enlistment and Reenlistment**_

_**Page 1**_

**Enlistment and Reenlistment**

**Updated by Captain Joshua P. Nichols, January 2018**

**AUTHORITY:** ANGI 36-2002, _Enlistment and Reenlistment in the Air National Guard and as a Reserve of the Air Force_ (1 Oct 2012).

**ENLISTMENT QUALIFICATIONS**

**Age**

No Prior Service - An applicant must be 17 years old and younger than 40 at the time of enlistment. Parental consent is

required for those persons who are 17, but less than 18 years of age, unless married. Waivers of this provision will not be

granted.

Prior Service - Typically, applicants who can substantiate satisfactory prior service may be enlisted. However, qualifying/

disqualifying reenlistment codes (RE) should be checked. Enlistment waivers should not be processed unless specifically

authorized by Table 1.9 of ANGI 36-2002, or when there are extenuating circumstances such as RE codes obviously is-

sued in error.

**Citizenship**

Each applicant must be a citizen of the United States or possess a valid Immigration and Naturalization Service (INS)

Form I-551/I-151 that does not expire within two years from the Date of Enlistment. Prior-service applicants who are

not U.S. citizens will not be enlisted.

Non-prior-service (NPS) applicants who are not U.S. citizens but maintain an INS Form I-55/I-151 without an expiration

date may be enlisted, but may not receive a security clearance until they become U.S. citizens. This rule may be chang-

ing, so check the latest guidelines on the issue.

**Education**

Both prior-service and non-prior-service applicants need a high school diploma or equivalent with at least a 31 score on

the Armed Forces Qualifications Test, and a minimum aptitude index shown in AFMAN 36-2108, _Enlisted Classification_ ,

for the career field subdivision in which considered for enlistment.

A non-prior-service high school senior may be enlisted with an official statement from school officials that the individual

has or will obtain sufficient acceptable credits to be awarded a high school diploma. Prior AF service or Palace Chase/

Front personnel may be enlisted without a high school diploma or equivalent provided they have obtained a 3-skill level

or higher.

**Physical Standards**

Applicants must meet the medical standards contained in AFI 48-123. Prior-service applicants are subject to the enlist-

ment standards in accordance with Department of Defense Instruction 6130.03, _Standards for Appointment, Enlistment, or_

_Induction in the Military Services_ , provided they have been separated 180 days or less and have a current physical (within prior five years), and a DD Form 2807-1, _Report of Medical History_ , with complete documented medical history, which has been completed within the prior six months or, if separated from the Air Force, active or reserve component, a current

Preventative Health Assessment (PHA)/Reserve Component Periodic Health Assessment (RCPHA) within prior 12

months; and a current health history, SF 507, _Clinical Record-Continuation Sheet_ , or Continuation of SF overprint or RCHRA. Applicants separated for more than 180 days are subject to enlistment standards as indicated in AFI 48-123.

_**Air National Guard Commander's Legal Deskbook**_

45

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-13 Enlistment and Reenlistment**_

_**Page 2**_

**Personal Security Investigation**

Security clearance investigations are conducted in accordance with AFI 31-501, Personnel Security Program Manage-

ment. Processing is coordinated between the recruiter, FSS, and the projected unit and wing managers. A National

Agency Check (NAC), Local Agency Checks and Credit Check (NACLC), or Single-Scope Background Investigation

(SSBI) request, as appropriate, will be initiated on all non-prior-service applicants. Checks on prior-service members will

be initiated not later than three working days after enlistment. Applicants who have a break in federal employment, ac-

tive military service, or active participation in a reserve program of a period less than 24 months, or who have a security

clearance as a DoD civilian employee or a contractor with a clearance issued under the Defense Industrial Security Pro-

gram, need not be reinvestigated if the previous investigation has been recorded as favorable.

**Applicants with Family Members**

Table 1.4 of ANGI 36-2002 outlines enlistment eligibility based on dependency status. Generally, single, non-prior-

service applicants with family members are not eligible to enlist without a written TAG waiver. Prior-service applicants

with family members may enlist as long as dependency was not a factor in the person's discharge or release from active

status. If the basis of the discharge or separation was due to dependency complications, a court order to release custody

of the children is necessary to qualify for enlistment. Married applicants with family members and married to a military

spouse are ineligible to enlist without a written TAG waiver. All applicants, whether prior service or non-prior service,

will be required to complete AF IMT 357, _Family Care Certification_ , before enlisting.

**APPLICANTS - NO WAIVER PERMITTED**

**Morally Unacceptable - Ineligible Applicants**

When convicted by a civilian court of an offense punishable by death or convicted of one or more Category 1 offenses as

set forth in Attachment 2 to ANGI 36-2002.

Presently under restraint ( _see_ definitions in ANGI 36-2002).

Possess questionable moral character, or a history of antisocial behavior (including a history of psychosis), frequent difficulties with law enforcement agencies, exhibitionism, voyeurism and/or other paraphilic conduct or disorders.

Have a background that makes enlistment inconsistent with protecting national security.

**Disqualifying Medical Conditions ( _see_** **Table)**

Documented history of mental illness.

HIV positive.

History of addiction to alcohol. (Waiver is available to individuals who can document successful completion of a rehabili-

tation program, have maintained sobriety for at least two years and are medically qualified.)

A "4" profile in any area of the PULHESX Criteria in an AF Form 422 (or DAC Code C).

**Other Disqualifications**

Prior-service applicants who deserted, were discharged with a less than honorable service characterization (UOTHC) or

were separated for drug abuse or unsatisfactory participation may not be re-enlisted or re-commissioned.

_**Air National Guard Commander's Legal Deskbook**_

46

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-13 Enlistment and Reenlistment**_

_**Page 3**_

Officers removed from active duty for unsuitability, misconduct or on unfavorable terms, may not be re-commissioned.

**Non-Prior-Service Applicants and Drug Use**

Applicants are not eligible for enlisting if they have been convicted of possession, use, sale or transfer of dangerous

or narcotic drugs, or ever been a distributor or manufacturer of dangerous drugs.

Marijuana: If the applicant admits to pre-service marijuana use and the number of times as indicated on the AF IMT

2030 is one to 15 times, no action is required and member may continue processing. If the applicant admits to pre-

service marijuana use and the number of times as indicated on the AF IMT 2030 is 16 or more times, then waiver action

is required.

Inhalants: Use of inhalants (paint, glue, or aerosol substances) will not be a bar to enlistment provided the medical certi-

fication authority determines the applicant is medically qualified.

Amphetamines: Individuals who admit to illegal or wrongful use of amphetamines, barbiturates, over-the-counter drugs,

or anabolic androgenic steroids may be accessed into the ANG only after an applicant is determined by the medical certifi-

cation authority not to be psychologically dependent on drugs or a chronic user.

Other drugs: Waivers are not considered for pre-service use of other illegal drugs including narcotics, cocaine, lysergic

acid diethylamide (LSD), phencyclidine (PCP – "angel dust"), opiates or any other hallucinogen or dangerous illegal

drugs.

**Other Reasons - Applicants not Eligible for Enlistment**

Conscientious objectors.

Have no social security number.

Served in another country's armed forces.

Willfully or intentionally failed to register for the selective service.

Active-duty members not Palace Chase.

Reserve personnel who do not have a conditional release.

Students in ROTC, a service academy, high school but not seniors, or enrolled in professional courses leading to a doc-

toral degree in medicine, dentistry, podiatry, veterinary medicine, osteopathy or optometry.

Convicted of a crime involving domestic violence.

Cannot attain 20 years for retirement purposes by age 60.

Palace Chase applicants and have 18 or more creditable years of service.

Are under parole, probation or a suspended sentence.

Are under the influence of alcohol or drugs anytime during the accession process.

Refuse to be tested for drugs or alcohol.

_**Air National Guard Commander's Legal Deskbook**_

47

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-13 Enlistment and Reenlistment**_

_**Page 4**_

**INELIGIBILITY FACTORS WHICH MAY BE WAIVED AT THE NGB LEVEL**

Certain civilian court convictions ( _see_ table 1.3 in ANGI 36-2002).

Applicants with excessive or distracting tattoos.

Certain family relationships.

Persons receiving retirement or retainer pay from any branch of the Armed Forces. There are some exceptions for those

with between 20 and 30 years of service.

Persons previously eliminated from AF Basic Military Training for other than medical reasons.

Persons previously discharged for failure to meet training requirements.

Applicants who are employees of the federal government or in other critical positions. Federal employees should submit

an agency certificate of availability. Other applicants, who would not be available for active duty, may need a waiver.

Applicants who previously served in another country's armed forces.

**INELIGIBILITY FACTORS WHICH MAY BE WAIVED BY THE ADJUTANT GENERAL**

A person who is granted a release from criminal charges filed or pending against them under the condition they apply

and are accepted into the military.

Persons previously separated or discharged by reason of dependency or hardship.

Those who have five or more days lost time on Title 10 active duty.

Prior-service personnel in the grade of E-4 or below.

**REENLISTMENT AND EXTENSION OF ENLISTMENT**

4 USC § 12308 restricts members from participating for pay and points beyond their 60th birthday without the approval

of the SECAF. However, NGB/A1 may approve participation beyond age 60, but no later than age 62, in the following

situations:

Enlisted members with 18 but less than 20 years of satisfactory service may request retention beyond age 60 to qualify

for a Reserve Retirement provided the member did not waive retirement eligibility upon enlistment and extenuating cir-

cumstances precluded eligibility before the member reached his or her 60th birthday.

Enlisted members with 18 but less than 20 years of Total Active Federal Military Service (TAFMS) may request retention

beyond age 60 to qualify for an Active-Duty Retirement provided the member did not waive retirement eligibility upon

enlistment and extenuating circumstances precluded eligibility before the member reached his or her 60th birthday.

Enlisted members serving as dual-status technicians may request retention beyond age 60 to qualify for a civil service

annuity. Requests for extension must include verification of civil service annuity eligibility date from the state HRO.

Members applying for extension under this provision must understand they will only receive pay, not points, for service

beyond age 60.

_**Air National Guard Commander's Legal Deskbook**_

48

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-13 Enlistment and Reenlistment**_

_**Page 5**_

Enlisted members who are approved for a medical hold IAW AFI 41-210, _Patient Administration Functions_ , may request retention beyond age 60 until expiration of the medical hold. The approved medical hold must be included with the re-

quest. Members applying for extension under this provision must understand they will only receive pay, not points, for

service beyond age 60.

Members enrolled but not making satisfactory progress in the Fitness Program at ETS will not be permitted to reenlist.

Waivers may be granted by TAG for a period not to exceed the time it will take to attain the fitness standard (minimum

extension is six months).

(*Only one extension will be executed per enlistment/reenlistment; exceptions to this require approval by ANG/DPP.)

An airman may be involuntarily extended for the time to complete an investigation or await trial for a UCMJ violation.

The eligibility factors for reenlistment are similar to those mentioned before in " _ENLISTMENT QUALIFICATIONS_ " above, but with the following additional factors:

Immigrant aliens who enlisted in the ANG must acquire U.S. citizenship status during their initial enlistment to be eligi-

ble for reenlistment extensions.

Individuals not selected for retention.

Should any problems arise in these areas, commanders should consult with their Judge Advocate, recruiters and MPF/

FSS.

_**KWIK-NOTE: Be familiar with the criteria for enlistment, reenlistment and extensions of enlistment.**_

**RELATED TOPICS:**

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****

****

****

****

****

****

****

****

****

****

**SECTION**

Conditional Release

1-8

Conscientious Objectors

1-9

Dependent Care Responsibilities

1-10

Enlistment of Airmen - Defective

1-15

Homosexuality

1-18

National Security Cases

1-21

Palace Chase

1-26

Selective Retention In The Air National Guard

1-37

Unsatisfactory Participation

1-40

Arrest By Civilian Authorities

8-6

Alcohol Abuse

10-3

Drug Abuse

10-4

AGR Program

11-4

HIV

19-2

Worldwide Duty Medical Evaluations

19-11

Medical Evaluation (Profile Change)

19-12

Adoption Expenses Reimbursement

23-2

Citizenship

23-7

Domicile

23-11

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Barring Reenlistment

24-6

Revocation Of Security Clearance

24-13

_**Air National Guard Commander's Legal Deskbook**_

49

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-14 Enlistment and Reenlistment Bonus Programs**_

_**Page 1**_

**Enlistment and Reenlistment Bonus Programs**

**Updated by Major Jeffrey M. Knickerbocker - November 2008**

**AUTHORITY:** ANGI 36-2607, _Air National Guard Retention Programs_ (30 Jan 1998); Applicable National Defense Authorization Acts.

**BONUS PROGRAMS**

Each Defense Authorization Act has included a bonus program. Bonuses could include a payment or a student loan repay-

ment. The education office and the recruiting office are excellent sources of information relating to bonuses.

Bonuses are authorized for ANG members who enlist, reenlist, or are appointed to serve in selected AFSCs. The bonus

program change depending on shortages and funds available to fund the various bonus programs. The best point of con-

tact for the most up to date bonus information is your base Recruiting Office.

Bonus participation may be terminated for failure to satisfactorily participate, separation, transfer to another AFSC, be-

coming a military technician, or the AFSC is withdrawn. Recoupment of unearned bonus payments will occur for the

above reasons, or also when the member accepts an Air National Guard officer's appointment having served less than

one (1) year from the initial bonus payment.

_**KWIK-NOTE: Widely disseminate the existence of this program to aid in recruiting and retention.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

AFSC Reclassification and Training

1-3

Enlistment and Re-enlistment

1-13

Montgomery G.I. Bill

4-6

Palace Chase

1-26

Reporting Identifiers

1-34

_**Air National Guard Commander's Legal Deskbook**_

50

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-15 Enlistment of Airmen – Defective**_

_**Page 1**_

**Enlistment of Airmen - Defective**

**Updated by Major Jeffrey M. Knickerbocker - November 2008**

**AUTHORITY:** AFI 36-3209, _Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members_ (14 Apr 2005). 

## INTRODUCTION

Members who have enlisted and have intentionally or unintentionally concealed facts, characteristics or matters which

would have made them ineligible for enlistment are subject to administrative separation.

**COMMANDER'S ACTION**

When commanders are faced with a defective enlistment of one kind or another, they should take the following steps:

1. Verify the facts;

2. Obtain copies of all documents which involve the member's enlistment and proof of the defect. (For example, the en-

listment contract and later acquired documents proving the defect);

3. Evaluate the facts and verify the defect; and

4. If the defective enlistment is verified, commence the administrative separation action through the CBPO.

**PRACTICAL TIPS**

Types of defective enlistments and some things to watch for are:

1. Enlistment of minors - a person under 17 years of age is barred by law from enlisting; this is considered a void enlist-

ment (it never legally existed), and, therefore, no discharge certificate or other evidence of service will be issued. This is not waivable.

2. Erroneous enlistment (or re-enlistment or extension of enlistment)- one which should not have been accepted but

does not involve fraud; this exists if:

a. It would not have occurred had the relevant facts been known by the Air Force, or had appropriate directives

been followed; and

b. It was not the result of fraudulent conduct on the part of the member; and

c.The defect is unchanged in material respects.

If the unit commander recommends the member be retained, the initiation of separation processing is not required if:

a. The defect is no longer present

b. The defect is waivable and the appropriate waiver has been obtained, or

c. The defect consists of failure to meet physical standards for enlistment, and the member is medically qualified for

worldwide duty.

_**Air National Guard Commander's Legal Deskbook**_

51

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-15 Enlistment of Airmen – Defective**_

_**Page 2**_

3. Defective Enlistment Agreements – exists if:

a. As a result of a material misrepresentation by recruiting personnel, upon which the member reasonably relied, the

member was induced to enlist with a commitment for which the member was not qualified; or

b. The member received a written enlistment commitment from recruiting personnel for which the member was quali-

fied, but which cannot be fulfilled by the Air Force or ANG; or

c. The enlistment was involuntary as defined in the UCMJ or state military code.

This may apply to re-enlistments and extensions of enlistment as well. Also, the existence of a defective enlistment agree-

ment does not bar appropriate disciplinary action, or other separation or discharge proceedings, regardless of when the

defect is raised. Separation for defective enlistment is appropriate only if the member did not knowingly participate in

the creation of the defective agreement and once the member discovers the defect, notifies the appropriate authorities

within 30 days of discovery. The member must also request separation instead of other authorized corrective actions.

4. Fraudulent Entry - one involving deliberate deception on the part of the enlistee regarding any material misrepresenta-

tion, omission, or concealment which might have resulted in rejection if known at the time of enlistment. Do not use for

concealment of minority or consent of a parent or guardian. This is waivable, but it is not recommended that waivers be

granted to members who conceal acts involving moral turpitude.

**Cautions to Commanders:**

Be sure the documents upon which you intend to rely are the appropriate ones. An example is the enlistee who conceals

or "forgets" to include a prior criminal conviction which the FBI " rap sheet" later reveals. You cannot support a discharge with just the "rap sheet," which may itself contain erroneous or incomplete information. Write to the court (or local police department to find the court) to obtain a CERTIFIED COPY OF CONVICTION or DISPOSITION of the offense.

That document - not the rap sheet - is required to support the discharge for this reason.

In certain erroneous and fraudulent enlistment situations, there are waiver options. Consult AFI 36-3209. BE CAREFUL,

however: if the Commander has knowledge of an erroneous or fraudulent enlistment and fails to act (to at least begin to

gather the necessary documents to begin the discharge action) within a reasonable time, a constructive waiver may re-

sult. This means that in certain erroneous and fraudulent enlistment situations, a Commander can waive the defect and

retain the enlistee. You may not want to retain, however. But, if you do not act timely, you may be deemed to have

waived the defect in the enlistment and be forced to retain the enlistee.

**DISCHARGE CHARACTER AND AUTHORITY**

Consult AFI 36-3209 for the authorized characterization of the discharge in each situation. Usually, the discharge author-

ity is the State which discharges the enlistee from both the State ANG and as a Reserve of the Air Force.

**CONCLUSION**

Close coordination among first sergeants, the MPF, and the Staff Judge Advocate is essential to ensure efficient and accu-

rate processing of these actions. As with most administrative discharge actions, these actions should be reviewed for le-

gal sufficiency by the unit SJA before being sent to the discharge authority for final action.

_**KWIK-NOTE: Commanders must act promptly in defective enlistment cases.**_

_**Air National Guard Commander's Legal Deskbook**_

52

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-15 Enlistment of Airmen – Defective**_

_**Page 3**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Administrative Discharge of Enlisted Personnel

24-3

Barring Reenlistment

24-6

Conscientious Objectors

1-9

Drug Abuse

10-4

Enlistment and Reenlistment

1-13

Enlistment and Reenlistment Bonus Programs

1-14

Homosexuality

1-18

Judicial Review of Military Administrative Actions

18-5

Legal Reviews

17-11

_**Air National Guard Commander's Legal Deskbook**_

53

_**Chapter 1, Administrative and Personnel Matters**_

_**1-16 Federal Commission Status Withdrawal**_

_**Page 1**_

**Federal Commission Status Withdrawal**

**Updated by Major Jeffrey M. Knickerbocker - November 2008**

**AUTHORITY:** 32 U.S.C. 323; OpJAGAF 1989/6, _Federal Commission Status Withdrawal_ (25 Jan 89); AFI 36-3209, _Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members_ (14 Apr 2005).

**FEDERAL RECOGNITION**

If an officer in the Air National Guard meets the prescribed Federal standards for the grade and position to which ap-

pointed or promoted by the State, then the federal government will generally "recognize" that appointment or promo-

tion. This process is what is meant by the phrase "federal recognition" although the appointment and promotion of offi-

cers in the Air National Guard is a function performed by the State.

**WITHDRAWAL CRITERIA**

Under federal law, however, this recognition of officer appointments and promotions can be withdrawn, if that officer is

no longer qualified concerning grade, branch, position or type of unit or organization involved. The Secretary of the Air

Force sets the criteria for members of the Air National Guard. Chapter 4 of AFI 36-3209 outlines the procedures for with-

drawal of Federal recognition.

In 1984, as a policy matter, the Secretary mandated Air National Guard officers must have at least a bachelor's degree

before their seventh year of commissioned service or risk losing their federal recognition. If an Air National Guard mem-

ber transfers to the Air Force Reserve, federal recognition is withdrawn automatically because there is no longer a state

requirement to recognize.

**DISCHARGE**

Former Air National Guard officers who transferred to the Air Force Reserve may still be discharged by the Air Force Re-

serve for substandard performance of duty or unsatisfactory participation if the bachelor's degree is not attained within

the required period of time.

Should a question arise along this line, a commander should contact the Staff Judge Advocate for advice.

_**KWIK-NOTE: Commissioned officers who are no longer qualified may have their federal recognition withdrawn.**_

**RELATED TOPICS:**

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**SECTION**

Federal Recognition of Officers

1-17

Selective Retention in the ANG

1-36

_**Air National Guard Commander's Legal Deskbook**_

54

_**Chapter 1, Administrative and Personnel Matters**_

_**1-17 Federal Recognition of Officers**_

_**Page 1**_

**Federal Recognition of Officers**

**Updated by Major Jeffrey M. Knickerbocker - November 2008**

**AUTHORITY:** ANGI 36-2504, _Federal Recognition of Promotion in the Air National Guard (ANG) and as a Reserve of the Air Force_ _Below the Grade of General Officer_ (28 Jul 04).

**"PROMOTION" AND "FEDERAL RECOGNITION" DISTINGUISHED**

The term "federal recognition" means an acknowledgment by the Federal government that an officer appointed or pro-

moted in the ANG meets the prescribed Federal standards for the grade and position to which appointed or promoted by

the State. Distinguish the terms "promotion" of officers from "federal recognition" of such promotion. The promotion of officers in the ANG is a function of the State. Federal recognition of a promotion is a federal function which has generally been delegated to each Adjutant General to exercise on behalf of the Chief, National Guard Bureau and the Secretary of

the Air Force.

Even though an officer has been promoted by the State, it is only upon that officer's promotion becoming "federally recognized" that the officer is entitled to wear the new rank to which promoted and begin to collect pay in the higher grade.

Once federally recognized, the ANG officer will receive a Reserve of the Air Force appointment in the same grade.

However, federal recognition of the ANG officer's rank does not necessarily subject that officer to all federal authorities, such as for military justice purposes. One of the distinguishing features of the ANG from the active duty force and reserves, is that while ANG officers and other ANG members are performing duty in a Title 32 status, they are not subject

to the UCMJ, even though the rank of such ANG officers has been "federally recognized."

**FEDERAL RECOGNITION BOARD**

NOTE: General officer federal recognition boards are conducted by the National Guard Bureau; therefore, the informa-

tion below applies only to boards for promotion to O-6 and below.

An officer in the ANG is promoted based upon the fully qualified method of selection, without regard to race, color,

creed, gender, age, or national origin. A federal recognition board, which must have a minimum of three, but not more

than five officers as voting members, to include a recorder without a vote, and who must be appointed separately, is con-

vened to determine a candidate's qualifications for federal recognition. The senior member of this board acts as its presi-

dent. All members have a vote in the matter, and must be senior to the individual being examined. The board members

review a candidate's physical and moral qualifications, and potential for success in the ANG. The whole person concept is

utilized as a general guide.

For an initial appointment to grades 0-1 to 0-6, a personal appearance is mandatory before the board, unless waived by

the Adjutant General of the State of appointment. For unit vacancy promotion to grades 0-2 to 0-6, a personal appear-

ance is at the discretion of the Adjutant General.

Upon completion of the examination, if conducted, the president of the board will excuse the candidate, and the board

members will deliberate the candidate's qualifications. Voting is by secret written ballot. The president of the board will

then recall the candidate if a personal examination was conducted, to advise the candidate of the board's findings and rec-

ommendations, and to take whatever other action is necessary. If a personal examination was not conducted, the candi-

date is notified of the same information by the president of the board.

All actions of the board are recorded on NGB Form 89 in accordance with sections 307 and 308 of Title 32 of the USC

and NGR (AF) 36-3 (28 May 93). Thereafter, this form is returned to the State Adjutant General for approval and sub-

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 1, Administrative and Personnel Matters**_

_**1-17 Federal Recognition of Officers**_

_**Page 2**_

mission to the Chief, National Guard Bureau, for appropriate federal recognition actions, including submission for confir-

mation by the United States Senate, if required.

It is strongly suggested that all officers whose promotions are being considered by a Federal recognition board personally

review their files and the record that will be submitted to the board BEFORE that record is submitted. The CBPO Chief

should be consulted, and in appropriate instances, based upon what may be in the files and records, so should the Staff

Judge Advocate.

_**KWIK-NOTE: ANG officers who are promoted cannot wear their new rank or begin to receive higher pay in the new grade,**_

_**until their promotion is federally recognized.**_

**RELATED TOPICS:**

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**SECTION**

Enforceability of Orders by AF Officers to ANG Personnel Not in Federal Service

11-5

Equal Opportunity and Treatment Program

9-5

Federal Commission Status Withdrawal

1-16

Officer Evaluation System

1-23

Promotion of ANG Officers

1-31

Relationship with Other Military Components

11-6

Status of National Guard Members

11-7

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-18 Homosexuality**_

_**Page 1**_

**Homosexuality**

**Updated by Lt Col Jeffrey Knickerbocker, November 2011**

**AUTHORITY:** 10 U.S.C. 654, _Policy Concerning Homosexuality in the Armed Forces_ (REPEALED); Air Force Portal Repeal of Don't Ask Don't Tell Website.

All Airmen, regardless of sexual orientation, may serve openly in the United States Air Force. Sexual orientation remains

a personal and private matter--it will not be a factor in accession, promotion, separation, or any other personnel decision-

making process.

Relevant Air Force Instructions (AFI) have been updated as a result of the repeal of DADT; a complete listing of those 22

AFIs is posted on the e-publishing website.

A summary of key issues associated with repeal of DADT, in addition to previously released guidance, training, and Fre-

quently Asked Questions, are available at the Air Force DADT Repeal website, located on the Air Force Portal under the

Life & Career tab.

The Air Force is committed to promoting an environment free from barriers where all Airmen can reach their fullest po-

tential. Discrimination, harassment, and abuse based on sexual orientation are unacceptable and will be swiftly ad-

dressed by commanders. Air Force leaders are confident that the repeal of DADT will be implemented with the profes-

sionalism, respect, and discipline shared by all Airmen.

_**KWIK NOTE: Homosexual conduct is no longer a bar to military service. However, be vigilant to harassment that may stem**_

_**against those who may be perceived to be homosexual.**_

**RELATED TOPICS:**

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**SECTION**

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Courts-Martial

8-15

Evidence - Differing Standards and Burdens of Proof

8-4

Professional and Unprofessional Relationships

7-4

Judicial Review of Military Administrative Actions

18-5

Quarters

25-16

Recruiting - Consolidation of Air Force, Air Force Reserve and Air National Guard Programs

1-32

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-19 Line of Duty Determinations**_

_**Page 1**_

**Line of Duty Determinations**

**Updated by Major Natalie J. Friedenthal, January 2018**

**AUTHORITY:** 10 U.S.C. 972; 10 U.S.C. 1074a; 10 U.S.C. 1201-1204 and 1206-1207; 10 U.S.C. 1219; 10 U.S.C. 1448;

32 U.S.C. 502(f); 37 U.S.C 802; 37 U.S.C. 204(g) and (h); 38 U.S.C. 1110; 38 U.S.C. 1131; 38 U.S.C. 3017; National De-

fense Authorization Act for Fiscal Year 2017, Public Law 114-328 (Dec 23, 2016); The Paperwork Reduction Act of 1995;

DoDI 1332.18, _Disability Evaluation System (DES)_ (5 Aug 2014); DoDI 6495.02, _Sexual Assault Prevention and Response_ _(SAPR) Program Procedures_ (28 Mar 2013 incorp. Chg 3, 24 May 2017); DoDD 5136.01, _Assistant Secretary of Defense for_ _Health Affairs_ (30 Sep 2013, incorp. chg. 1, 10 Aug 2017); DODM 1332.18, _Disability Evaluation System (DES) Manual: Integrated Disability Evaluation System (IDES)_ ; AFPD 36-29, _Military Standards_ (24 Sep 2014); AFI 33-332, _Air Force Privacy and_ _Civil Liberties Program_ (12 Jan 2015, incorp. chg. 17 Nov 2016); AFI 36-2910, _Line of Duty (LOD) Determination, Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay_ (8 Oct 2015). 

## INTRODUCTION

Federal law requires Line of Duty (LOD) determinations be made based on the findings of an investigation into the cir-

cumstances of a military member's illness, injury, disease, or death. The Line of Duty determination protects the inter-

ests of the United States, the military member and their dependent family members or survivors, so that statutory rights

or benefits are awarded justly and in accordance with applicable law and instructions. A member is not eligible for cer-

tain government benefits if they die or sustain an illness, injury or disease prior to service, while absent without author-

ity or as a result of the member's misconduct. The following article is tailored to address the process and substantive in-

formation that affects Air National Guard (ANG) members.

**PERSONNEL SUBJECT TO LOD DETERMINATIONS**

ANG members are subject to LOD determinations if they die, or incur or aggravate an illness, injury or disease during

any of the following:

On published orders for any period of time.

On inactive duty.

Traveling directly to or from the place the member performs active duty or training.

Staying overnight immediately before and between consecutive IDT periods.

**USE OF LOD DETERMINATIONS**

LOD determinations are used as the basis for granting or withholding certain benefits. A member is not entitled to dis-

ability separation or disability retirement if the disability was incurred during a period of unauthorized absence or re-

sulted from the member's misconduct. A member may forfeit pay and be extended for enlistment if he or she was absent

from regular duties because of a disease directly caused by and immediately following intemperate drug or alcohol use.

LOD determinations may be used by the Veterans Administration (VA) in determining eligibility for benefits. A mem-

ber's surviving dependent family members may be eligible for benefits under the Survivor Benefit Plan or the Basic Edu-

cational Assistance Death Benefit if a member dies on active duty and In the Line of Duty (ILOD). ANG members in-

jured ILOD may be entitled to hospital benefits, medical pensions, Medical Continuation (MEDCON) benefits and/or

incapacitation (INCAP) pay.

An ANG member must receive an ILOD determination to enter into the DES for a duty-related condition.

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_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-19 Line of Duty Determinations**_

_**Page 2**_

Commanders are prohibited from using LOD determinations for disciplinary action. However, if disciplinary action is

warranted, it may be appropriate for commanders to take separate disciplinary action while the LOD is being initiated

and determined.

For an ANG member whose condition is determined to be Not in Line of Duty (NILOD), only initial medical treatment

for a diagnosis will be provided, while follow-up medical care is the responsibility of the member. However, a member in

duty status is never to be denied emergency medical care. A NILOD determination does not allow the United States to

recoup medical care costs from the military member.

**WHEN AN LOD DETERMINATION IS REQUIRED**

The LOD process _must_ be initiated for ANG members, whether or not the member has been hospitalized, in all the fol-

lowing situations:

Member incurs or aggravates an illness, injury or disease while serving in any duty status, regardless of the member's

ability to perform military duties.

Member receives any medical treatment while serving in any duty status, regardless of the member's ability to perform

military duties.

Member incurs or aggravates an illness, injury or disease while traveling directly to or from the place at which duty is performed.

Member incurs or aggravates an illness, injury or disease while remaining overnight immediately before and between con-

secutive IDT periods, at or near the site of the IDT, when the duty location is outside reasonable commuting distance

from the member's residence.

Death of a member.

Injury involving likelihood of permanent disability.

Injury or disease involving the abuse of alcohol or other drugs.

Self-inflicted injury.

Injury or disease possibly incurred during a period of unauthorized absence.

Injury or disease possibly incurred during a course of conduct for which charges have been preferred under the Uniform

Code of Military Justice (UCMJ).

A separate LOD determination must be completed for each condition which requires a determination unless multiple

conditions are linked to a single event. LOD benefits span the duration of each illness, injury or disease until a member

is returned to duty without restrictions pertaining to that condition. A new LOD determination must be accomplished

for any subsequent aggravation of the illness, injury or disease.

**RESTRICTIONS**

When a member fails to report that he or she incurred or aggravated an illness, injury or disease within 180 days of re-

lease from active duty or IDT, the member is presumed to be able to perform military duties, not to require treatment

and not to have unresolved health conditions. After 180 days, the _only_ avenue for addressing previously unreported illness, injury or disease is through the V.A. LODs should not be initiated.

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_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-19 Line of Duty Determinations**_

_**Page 3**_

Members should not be separated or retired while awaiting final LOD determination.

**PRESUMPTIONS**

An illness, injury, disease or death sustained by a member in any duty status is _presumed_ to be ILOD. The presumption may be rebutted when evidence shows the member was NILOD.

Any medical condition incurred or aggravated during one period of active service or authorized training that recurs, is

aggravated or otherwise causes the member to be unfit, should be considered incurred ILOD, if not due to misconduct or

as the result of intervening events occurring in a non-duty status.

_**Please note that the 8 October 2015 AFI rendered the previous "Eight-Year Rule" presumption to no longer be applicable to**_

_**LOD determinations (1.10.2.2.2.4).**_

**EVIDENTIARY STANDARDS**

There are two main evidentiary standards which may be required in making an LOD determination.

**Preponderance of Evidence**. A commander applies the preponderance of evidence standard in making all Line of Duty

determinations except concerning a condition which existed prior to military service. The preponderance of evidence is

the greater weight of credible evidence: that evidence that, when fairly considered, produces the stronger impression and

is more convincing as to its truth when weighed against the opposing evidence. Sometimes lawyers say that one reaches

a preponderance when as little as 51 percent of the evidence leads to a particular conclusion. In using this standard, com-

manders are permitted to consider all available evidence including:

_**Direct Evidence:**_ Actual knowledge or observation of a witness.

_**Indirect Evidence:**_ Facts or statements from which reasonable inferences, deduction and conclusion may be drawn to establish an unobserved fact, knowledge or state of mind.

_**Accepted Medical Principles**_ : Based on fundamental deductions, consistent with medical facts.

**Clear and Unmistakable.** This standard is only used to determine whether a condition that Existed Prior to Military

Service (EPTS) was Service Aggravated (SA) or Not Service Aggravated (NSA). Clear and unmistakable evidence means

the information is undebatable and reasonable minds could only reach a single conclusion after reviewing the evidence.

It is a standard of evidentiary proof higher than a "preponderance of evidence" and higher than "clear and convincing evi-

dence." When using this standard, a commander may consider accepted medical principles _**but may not consider Indirect**_

_**Evidence**_.

**TYPES OF LOD DETERMINATION RECOMMENDATIONS**

There are four theoretical determinations that can be made regarding whether a member's illness, injury, disease or

death occurred in the line of duty or not. However, the immediate commander is required to select from one of three

Line of Duty Determination Recommendations on the AF Form 348, _Line of Duty Determination._ For that reason, to best assist the commander, the four theoretical _determinations_ are organized below for discussion under the three _recommendations_ from which a commander must select on the form.

**In Line of Duty (ILOD).** This determination recommendation is made when the illness, injury, disease or death was

not due to the member's misconduct and was incurred when the member was present for duty or absent with authority

or when the illness, injury or disease was _service aggravated_.

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_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-19 Line of Duty Determinations**_

_**Page 4**_

_**Service Aggravated:**_ Please note the AFI does not apply a common sense definition of service aggravated, a point often overlooked by both commanders and the military medical providers who may check the "service-aggravated" box on the

AF Form 348. Under the AFI, a condition is service aggravated when there is a _permanent_ worsening of a pre-service medical condition, _over and above_ natural progression, caused by trauma or the nature of military service.

_**Natural progression**_ is the course an illness, injury or disease would take over time, regardless of military service.

It is prudent for a commander to have a conversation with the military provider to confirm the correct definition was ap-

plied in checking the "SA" box. Importantly, the commander is not bound by the medical provider's determination of

service aggravation, if the commander's informal investigation provides sufficient evidence for the commander to make a

different determination satisfying the appropriate burden of proof. A commander should perform some due diligence in

any case to determine whether a condition existed prior to the member's entry in service. This can include interviewing

the member or requesting a copy of the member's last physical examination or annual military health assessment ques-

tionnaire.

**Not in Line of Duty (NILOD) - Not Due to Member's Misconduct (only if EPTS-NSA with no indication of mis-**

**conduct).** This determination recommendation can only be made by the immediate commander in one specific circum-

stance. Although the AFI in paragraph 1.10.2, includes two circumstances, a determination of Absence without Author-

ity requires a formal investigation and thus will be discussed along with that recommendation below.

_**Existed Prior to Service (EPTS) – Not Service Aggravated (NSA):**_ A NILOD – Not Due to Member's Misconduct determination is made when an investigation reveals the member's illness, injury, disease or the underlying condition causing it,

existed prior to the member's entry into military service with any branch, or between periods of service, and was not

service aggravated. EPTS conditions are the most challenging for LOD determinations because a command must gener-

ally collect and review more evidence and then chose the appropriate standard to apply. ( _See_ the Evidentiary Standards section of this article for definitions of the standards.)

For ANG members ordered to active duty for _**30 days or less**_ , or while on ADT or IDT, when the condition became unfitting ... _**Apply the Preponderance of Evidence Standard.**_

For ANG members ordered to active duty for _**more than 30 days**_ (not to include ADT or IDT) when the condition became unfitting ... _**Apply the Clear and Unmistakable Evidence Standard.**_

**Formal LOD Determination.** A recommendation for a formal LOD determination recommendation must be made un-

der the circumstances described in the two cases below. Absence without Authority is discussed here because it requires

the immediate commander to recommend a formal investigation, although the AFI organizes it under NILOD – Not Due

to Member's Misconduct.

_**Absent Without Authority.**_ A formal recommendation _must_ be made when an informal LOD investigation leads a commander to conclude the member's illness, injury, disease or death occurred while the member was absent without author-

ity.

_**Not in Line of Duty (NILOD) - Due to Member's Misconduct.**_ A formal recommendation _must_ be made when an informal LOD investigation leads a commander to conclude that a member's illness, injury, disease or death was proximately

caused by the member's misconduct, _including_ those circumstances when the member's illness, injury, disease or death occurred prior to service, in a non-duty status, or while the member was absent without authority _**and**_ was proximately caused by the member's misconduct.

A formal recommendation _may_ be made when the member's illness, injury, disease or death occurred under strange or

doubtful circumstances.

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_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-19 Line of Duty Determinations**_

_**Page 5**_

A formal recommendation may be made under circumstances which the commander believes should be fully investi-

gated. This is a catch-all that provides the commander the discretion to take a closer look at potential line of duty condi-

tion for any appropriate reason.

_**When agreement on the line of duty determination differs.**_ The Appointing Authority may also recommend a formal investigation when there are differing opinions as to whether the member's illness, injury, disease or death occurred In Line of

Duty, such as when the Staff Judge Advocate non-concurs with the immediate commander's recommendation, or if the

Appointing Authority disagrees with either of the prior determinations made.

_A practice note._ The LOD issue will often surface when there are injuries to a member while en route to a UTA, but the member detoured from the most direct route to drill; or the member is injured on Saturday night of a UTA weekend, if

the member resides in the vicinity of the duty location. Members remaining overnight at or in the vicinity of the place

where inactive duty training is to be performed immediately before serving on duty are entitled to LOD benefits, if the

duty location is outside reasonable commuting distance from the member's residence. Thus, depending on the location

of duty and the member's residence, some drill status members who are injured on Friday or Saturday nights prior to per-

forming UTAs may be entitled to LOD benefits.

**TYPES OF LODs, RESPONSIBILITIES AND TIMELINES**

LOD determinations should be accomplished via an automated LOD system (when available) and will transition to a To-

tal Force automated solution when implemented.

The member is responsible for reporting a work-related injury, illness or disease **within 72 hours**. After reporting, the member must provide supporting medical documentation to a supervisor and the medical unit within five workdays of

report or be subject to processing for being medically unfit. If the member fails to promptly report the injury, illness or

disease, he or she must provide a written explanation for the delay to the commander and medical unit.

Military medical providers, commanders and Staff Judge Advocates (SJA) who learn of a member's illness, injury, disease

or death that occurred under circumstances that may warrant an LOD determination shall take an active role in ensuring

an LOD determination is initiated, subject to exceptions for sexual assault LODs, discussed later.

Under the updated AFI, there are now four ways to document and process a duty status injury, illness, disease or death,

including the new Interim LOD added in the 8 October 2015 version of the AFI.

**ADMINISTRATIVE LOD.** For an ANG member, a military medical provider may annotate an injury, illness or disease

incurred in a duty status on a Standard Form 600, _Chronological Record of Medical Care_ , or electronic medical record, for any minor condition if there is _no likelihood_ of permanent disability, hospitalization or requirement for continuing medical treatment.

**INFORMAL LOD.** When administrative processing is not appropriate, an Informal LOD is initiated on an AF Form 348.

For ARC members serving in a duty status, Informal LODs are required when:

The medical condition involves a disqualifying disease process IAW AFI 48-123;

The member requires continuing medical treatment;

The member requires overnight hospitalization; and

When the Eight-Year Rule for disability determinations might apply.

The AF Form 348 documents an Informal LOD. It is an eight-part form, followed by instructions, and is completed as

follows:

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_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-19 Line of Duty Determinations**_

_**Page 6**_

**Part I. Member Information.** This initial information will be completed by the LOD-PM or by the Military Medical Pro-

vider initiating the form and forwarded to the Military Medical Provider **within five workdays** of receipt of report.

**Part II. Military Medical Provider.** The military medical provider completes this portion of the form including a list or description of symptoms in Block 11 and a narrative description of member's condition as described to the provider in

Block 12. The medical provider must not make a LOD determination. The AF Form 348 is forwarded to the immediate

commander listed in Block 1 by **next Unit Training Assembly**.

**Part III. Immediate Commander.** The immediate commander gathers available information on the circumstances of the

member's illness, injury, disease or death. This is an informal "investigation" which may require the commander to, in

addition to speaking to the member, interview witnesses, request additional medical record, review Part II of the LOD

and speak to the servicing Military Medical Provider. Some helpful hints for the commander are:

In Block 16, the Appointing Authority is the group commander or next highest level commander.

The Medical Unit can help commanders obtain health care records from the member's primary care provider or provide

copies of a military health evaluation or MEPS medical records when relevant.

Block 20 is a place for a commander's narrative based on their informal investigation. This should not be a repeated state-

ment of the Military Medical Provider's narrative, but the independent findings of the commander after reviewing all col-

lected information, which may or may not agree with the narrative or check boxes made by the provider. All facts sup-

porting the conclusion made in Block 22 should be provided here. Even if orders are attached, the dates of duty should

be included in this block.

If a commander checks "other" in Block 21, which is most often the case, he or she must "specify" what the cause of the

injury is, such as typing in the word "accident."

The commander must forward the completed AF Form 348 to the Staff Judge Advocate **within 30 days** of receipt.

**Part IV. Wing Staff Judge Advocate (SJA).** The SJA reviews the immediate commander's LOD determination recom-

mendation for legal sufficiency and then concurs or non-concurs. The SJA must forward the AF Form 348 to the appoint-

ing authority listed in Block 16 **within 30 days** of receipt.

**Part V. Appointing Authority.** The appointing authority for ANG units is the next immediate commander in the chain

of command over the immediate commander, often the group commander. The appointing authority reviews the recom-

mendation of the immediate commander and response by the SJA to determine the proper LOD determination or action

to be taken. The appointing authority makes his or her recommendation and must return the form to the LOD-PM or by

the Military Medical Provider who initiated the AF Form 348 **within 10 days** of receipt.

**Parts VI – VII.** These sections take place after legal review and all commanders have weighed in. Instructions for these parts can be found at the back of the form.

**Part VIII. Remarks.** This section can be used by the military medical provider, immediate commander, SJA or appoint-

ing authority, should they need additional room to continue their narrative or make a comment.

**INTERIM LOD.** The immediate commander may issue an Interim LOD to permit the member to obtain initial medical

treatment pending the final LOD determination. An Interim LOD requires the AF Form 348 be completed only through

the immediate commander's portion, which must contain a preliminary finding of the member's military status at the

time the medical condition occurred. This determination is only valid for 55 days or replaced earlier than that upon com-

pletion of the finalized Informal LOD determination. An Interim LOD determination _**must not**_ be used in two circumstances:

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_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-19 Line of Duty Determinations**_

_**Page 7**_

_**When there is clear and unmistakable evidence showing the member's condition existed prior to service in any military**_

_**branch.**_

_Clear and Unmistakable Evidence_. As a reminder, this standard requires undebatable information (reasonable minds could only conclude) that the condition existed prior to military service or was not aggravated by military service.

_**When there is clear and convincing evidence that misconduct was the proximate cause of the illness, injury or disease.**_

_Clear and Convincing Evidence._ A standard used nowhere else in this AFI, clear and convincing evidence is evidence indicating that the thing to be proved is highly probable or reasonably certain. It is a burden of proof higher than a preponder-

ance of evidence but lower than clear and unmistakable evidence.

**FORMAL LOD.** A Formal LOD investigation begins after a commander recommends a formal investigation is needed. A

formal determination is made by higher authorities based upon a thorough investigation conducted by a specially ap-

pointed Investigating Officer (IO). DD Form 261, _Report of Investigation Line of Duty and Misconduct Status_ , is used to supplement the AF Form 348 used for the informal investigation. All Formal LOD determinations for the ANG require review

by the ARC LOD Determination Board.

**Appointing Authority.** The formal LOD investigation begins when the appointing authority appoints in writing a disin-

terested Investigating Officer in the grade of Captain or above, and senior to the member being investigated. When the

appointing authority is satisfied with the completed investigation, he or she will sign the DD Form 261 and forward the

file to the reviewing authority.

**Investigating Officer (IO).** The IO is responsible for examining the circumstances surrounding the member's illness,

injury, disease or death in accordance with Attachment 3 of the AFI. When the investigation concludes, the IO completes

DD Form 261, obtains a legal review from the SJA, and forwards the investigation report to the appointing authority.

**SJA.** The SJA serves as a legal advisor to the IO. It is recommended that a different JA conduct the legal sufficiency review of the IO's findings and recommendations.

**Reviewing Authority.** The reviewing authority reviews the complete investigation file and, when satisfied the findings are sufficient, completes DD Form 261, and forwards the file to the approving authority.

**Approving Authority.** The approving authority reviews the complete investigation file and, when satisfied the findings are sufficient, completes DD Form 261, and forwards the file to NGB/A1 for distribution to the LOD PM.

**APPEAL**

A final LOD determination may be appealed once by the member or next of kin (if the member is deceased or incapaci-

tated) for any reason. The appeal must be made in writing within 30 days of receipt of the LOD determination following

the guidance in Chapter 2 of AFI 36-2910. The member or next of kin will be notified in writing of the appellate author-

ity's decision to approve or disapprove the appeal.

**LOD DETERMINATIONS FOR SEXUAL ASSAULTS**

The 8 October 2015 version of AFI 36-2910 introduces procedures for processing LODs for members who have filed a

report of sexual assault. Members of the Reserve Components, whether they file a Restricted or Unrestricted Report,

shall have access to medical treatment and counseling for injuries and illness incurred from a sexual assault inflicted

upon a service member when performing active service or inactive duty training. A member who has incurred an injury,

illness or disease as a result of sexual assault while performing active duty service or inactive duty training must have his

_**Air National Guard Commander's Legal Deskbook**_

64

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-19 Line of Duty Determinations**_

_**Page 8**_

or her LOD processed IAW DoDI 6495.02. The LOD determination process will vary depending on whether the member

elects unrestricted or restricted reporting.

**Entitlements Based on Restricted or Unrestricted Report.** Medical entitlements for the injury or illness that occurs

as a result of sexual assault are dependent upon a LOD determination whether the sexual assault incident occurred in an

active service or inactive duty training status. Enclosure 5 of DoDI 6495.02, _Sexual Assault Prevention and Response (SAPR)_ _Program Procedures_ , provides detailed information regarding the LOD process for a restricted report of sexual assault, which limits the member's ability to obtain pay and allowances for travel and transportation incident to the healthcare

entitlement. Member may, at any time, change a restricted report to an unrestricted report, which will be followed by an

unrestricted LOD determination allowing the member to receive the full range of entitlements authorized under DoDI

1241.2, to include MEDCON and INCAP Pay as defined in AFI 36-3209.

**Continued Medical Care.** Members filing both unrestricted and restricted reports are provided access to medical treatment and counseling for injuries and illness incurred as a result of a sexual assault which occurred when performing ac-

tive service or inactive duty training. ANG members will be entitled to continued medical treatment recommended by a

medical or mental health provider only if there is an LOD determination that the sexual assault occurred ILOD. The Sex-

ual Assault Response Coordinator can assist in this specialized determination which is focused almost exclusively on

status, and not on the veracity of the claim which must by instruction and Chief of National Guard Bureau Memorandum

be investigated by the appropriate investigative agency.

**Special LOD Processing Procedures for LODs for Sexual Assault.** Carefully review Enclosure 5 of DoDI 6495.02 be-

fore processing an LOD for sexual assault. It addresses special procedures such as the ability to report a sexual assault

while safeguarding the confidentiality of the victim, the designation of individuals to make LOD determinations other

than the immediate commander, the ability of the SARC to provide documents substantiating status on the victim's be-

half and the right for a victim to request being retained on or returned to active duty pending the LOD determination.

**RE-INVESTIGATION**

A Formal LOD determination may be opened for re-investigation only if new and significant evidence indicates likelihood

of error. Re-investigation may be directed by the appointing authority or higher authority or be requested by the member

or the member's next of kin in writing within 45 days of receipt of a copy of the final Formal LOD determination. The

approving authority may either grant or deny the request. Instructions on how to process, conduct and document the re-

investigation is set forth in Chapter 4 of AFI 36-2910.

**INFORMATION ON INCAPACITATION PAY**

_See_ the section in this _Deskbook_ entitled, _"Disability and Payment for Healthcare Treatment of ANG Members."_ For guidance on MEDCON and INCAP pay processing for Sexual Assault Cases, _see_ AFI 36-2910, Chapter 3.

_**KWIK-NOTE: When a member is injured or becomes ill during a duty period, an LOD determination usually needs to be**_

_**made. Use this topic to assist in LOD determinations.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Report of Facts and Circumstances of Death

1-35

Disability and Payment for Healthcare Treatment of ANG Members

4-4

Payment for Healthcare Treatment of ANG Members

4-7

Evidence – Differing Standards and Burdens of Proof

8-4

Status of National Guard Members

11-2

Investigations and Inquiries

16-11

Disability Evaluation System

19-11

_**Air National Guard Commander's Legal Deskbook**_

65

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-20 Statutory Tours (formerly MAJCOM 265 Officers)**_

_**Page 1**_

**Statutory Tours ( _Formerly_** **MAJCOM 265 Officers)**

**Updated by Lt Col Christine Lennard, February 2015**

**AUTHORITY:** Title 10, United States Code, Section 10211 ( _formerly_ 10 USC Section 265); AFI 38-201, _Management of_ _Manpower Requirements and Authorizations_ (30 Jan 2014); ANGI 36-6 _The Air National Guard Statutory Tour Program Policies and_ _Procedures_ (9 Nov 10, Certified current 1 May 13); related: OpJAGAF 1996/118, 19 July 1996, _Reserves_.

**STATUTE**

Title 10, Subtitle E, addresses Reserve Components, and Chapter 1007, Section 10211, provides for Reserve officer par-

ticipation in preparation and administration of Reserve policies and regulations. This section specifically states that:

"within such numbers and in such grades and assignments as the Secretary concerned may

prescribe, each armed force shall have officers of its reserve components on active duty (other

than for training) at the seat of government, and at headquarters responsible for reserve affairs, to

participate in preparing and administering the policies and regulations affecting reserve components.

While so serving, such officers are additional members of any staff with which he is serving."

**DISCUSSION**

10 USC Section 10211 provides the statutory requirement for Reserve component members to be placed on active duty

to ensure their direct involvement and impact on Reserve affairs. Members may serve at the National Guard Bureau, Of-

fice of the Secretary of Defense, Office of the Secretary of the Air Force and other locations. Members are placed on active duty (on a "statutory tour") under the authority of 10 USC 12301(d) only after first obtaining the permission of the governor of the state. This is typically delegated to TAG or the ATAG, or in some instances the ANG State HQ Chief of Staff.

Contact your state Military Personnel Management Officer (MPMO) for the most current delegation letters, if needed.

While the ANG member serves on a statutory tour as an additional member of the staff at the tour location, he or she

does not count against active-duty end strength. ANG members retain their ANG affiliation. This is important for key

members to understand when undergoing major reviews, such as an enlisted grade review.

**APPLYING FOR STATUTORY TOURS**

The process for qualifying and applying, along with a listing of military vacancy announcements for the ANG statutory

tour program, is currently maintained here: http://www.ang.af.mil/careers/mva/index.asp.  _See, also,_ ANGI 36-6, referenced above.

_**KWIK-NOTE: This authority was formerly codified in 10 USC Section 265 (hence the previous title "MAJCOM 265 offi-**_

_**cers"), which was repealed by Pub. L. 103–337, div. A, title XVI, §§ 1661(a) (2) (A), 1691, Oct. 5, 1994, 108 Stat. 2979,**_

_**3026, effective Dec. 1, 1994.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

**SECTION**

Promotion of Officers

1-31

Selective Retention in the Air National Guard

1-36

Active Duty - Air National Guard Members

11-2

Status of National Guard Members

11-7

_**Air National Guard Commander's Legal Deskbook**_

66

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-21 National Security Cases**_

_**Page 1**_

**National Security Cases**

**Updated by Major Jeffrey Knickerbocker, November 2008**

**AUTHORITY:** AFI 31-501, _Personnel Security Program Management_ (27 Jan 2005); AFI 51-201, _Administration of Military Justice_ (21 Dec 2007); AFI 31-401, _Information Security Program Management_ (1 Nov 2005).

**PERMISSION TO PROCEED REQUIRED**

Unit commanders and supervisors contemplating disciplinary or administrative action against military members or civil-

ian employees that could lead to discharge or removal must first obtain permission to proceed when the member or em-

ployee holds a special access as follows:

1. SCI access and persons debriefed in the last three (3) years;

2. Current SIOP/ESI and other XO special access programs and persons debriefed within the past two (2) years;

3. Current access to R & D special access programs and persons debriefed within the past year; and

4. Persons who have had a duty assignment with AFOSI and have held an AFOSI special access. Procedures for obtain-

ing permission are continued in AFI 31-501, para 8.9. It should be noted that expeditious processing of such requests

must be pursued to comply with any speedy trial rules and restrictive time requirements in civilian removal cases (the

goal is to process the cases within 15 duty days of the date of the message initiating the request). Voluntary separation

requests from members with access will not be handled under these procedures unless they are instead of adverse action.

**ACTION ALLOWED PENDING PERMISSION TO PROCEED**

The following actions are permitted pending decision:

1. COURTS-MARTIAL - permitted: completion of referral of charges and Article 32 investigation; not permitted: referral

of charges to trial by Convening Authority (under state law);

2. AIRMEN DISCHARGES - permitted: notification letter of the proposed discharge, member's response, and necessary

appointments; not permitted: discharge or convening of a board;

3. OFFICER DISCHARGES - permitted: initiation of case, member's response, necessary appointments; not permitted:

show cause for retention; and

4. CIVILIAN REMOVALS - Cannot even present notice letter to employee without authority to proceed.

**CASES REQUIRING REPORTING**

Any case that has the potential for becoming a national security case must be reported to AFLSA/JAJM (through your

State Headquarters and the NGB) as soon as the SJA learns of it. The following must be handled as national security

cases:

1. Espionage;

2. Subversion;

_**Air National Guard Commander's Legal Deskbook**_

67

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-21 National Security Cases**_

_**Page 1**_

3. Spying;

4. Aiding the enemy;

5. Sabotage; and

6. Violations of punitive regulations or criminal statutes concerning classified information. These cases involve decisions about how the investigation is to proceed, whether a prosecution will occur, and if so, who will try the case and in which

court. Therefore, it is mandatory for the SJA to check with AFLSA/JAJM at the earliest time.

_**KWIK-NOTE: If a matter affecting national security is involved in any court-martial, discharge or removal action, notify**_

_**higher headquarters immediately and before proceeding.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Classified Material

14-2

Courts-Martial

8-15

Personnel Security Access Program

1-28

Quality Force Management Actions

24-12

Revocation of Security Clearance

24-13

Withdrawal of Authority to Bear Firearms

1-41

_**Air National Guard Commander's Legal Deskbook**_

68

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-22 Newcomer's Briefing**_

_**Page 1**_

**Newcomer's Briefing**

**Updated by Major Jeffrey Knickerbocker, November 2008**

**AUTHORITY:** AFI 36-2103, _Individualized Newcomer Treatment and Orientation (INTRO) Program_ (3 Jun 94)(information only); command policy; applicable state law and regulations.

**USE**

A well developed and presented Newcomer's Briefing can be invaluable to both the new ANG member and to the unit.

The orientation creates an important first impression for the newcomer; the briefing is where retention begins. A good

Newcomer's Briefing will be a broad brush of many topics, and should include several different speakers, The briefing

should be concluded in an hour or so. It should be given frequently enough (at each monthly UTA, for example) so that

the group of listeners does not exceed 15 to 20 people. Speakers should be prepared to discuss and field general ques-

tions on all of the below " _Related Topics_." Some listeners will have no prior military experience while the experience of others will be extensive, either from other ANG units or from the Air Force or other branches of service.

**WHAT TO INCLUDE**

The mission of the Air National Guard and of the particular unit should be concisely explained. The chain of command

through the unit commander, and the importance of following the chain of command, should be made clear.

The impact of Guard membership on one's family life and working life should be discussed. The family support mecha-

nisms of the unit as well as the Employer Support to Guard and Reserve organizations in the community should be ex-

plained.

The ANG's military educational requirements and civilian education expectations, as well as the CCAF and the Mont-

gomery GI Bill benefits should be discussed. The importance of the enlistment contract and the serious nature of the

commitment to the ANG which has been made should be emphasized, as well as the requirement to be and remain drug

free. The Urinalysis Program should also be discussed.

Military training requirements and opportunities should be explained to the newcomers. Assignment and promotion poli-

cies, the possibilities for full-time employment, and the possibilities of appointment as an officer are important motiva-

tional topics at a Newcomer's Briefing. Pride in oneself, in one's dress and appearance, and personal growth potential

should flow throughout the briefing.

**BRIEFING PERSONNEL**

Speakers from various offices within the unit should make short but professional presentations. These would include a

Judge Advocate presentation on Military Justice and Standards of Conduct. Both the Federal UCMJ (applicable at basic

training and tech school) and the State Code of Military Justice should be explained at an introductory level. First impres-

sions are important, and it is the responsibility of all unit members to welcome new unit members and mentor them as

they become part of the organization.

_**KWIK-NOTE: Each function on base should send a speaker who should have handouts available which describe that function**_

_**and provide useful information for each listener at the briefing.**_

_**Air National Guard Commander's Legal Deskbook**_

69

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-22 Newcomer's Briefing**_

_**Page 2**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Administrative Demotion of Airmen

24-2

Administrative Discharge of Enlisted Personnel

24-3

HIV

19-2

Alcohol Abuse

10-3

Benefits

4-2

Civilian Employment And Guard Membership

23-8

Classified Material

14-2

Code of Conduct

15-4

Courts-Martial

8-15

Dependent Care Responsibilities

1-10

Dress and Appearance

1-12

Driving While Intoxicated and Other Offenses Involving Intoxication

8-17

Drug Abuse

10-4

Equal Opportunity and Treatment Program

9-5

Financial Responsibility

23-12

Professional and Unprofessional Relationships

7-4

Homosexuality

1-18

Legal Assistance Program

17-8

Medical And Dental Care During Inactive Duty Training

19-8

Montgomery G.I. Bill

4-6

Motor Vehicle Rules - Military Bases

21-6

Pass And Registration

3-14

Personal Affairs Checklist

20-3

Personnel Security Access Program

1-28

Pre-Mobilization Legal Counseling

20-4

Sexual Harassment

9-8

Suspension Of Base Driving Privileges

21-7

Travel Vouchers

27-12

Urinalysis Program

10-7

Vehicle Registration

21-8

Veterans Benefits

4-8

Weight And Body Fat Management Program

24-15

_**Air National Guard Commander's Legal Deskbook**_

70

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-23 Officer Evaluation System**_

_**Page 1**_

**Officer Evaluation System**

**Updated by Major Jeffrey Knickerbocker, November 2008**

**AUTHORITY:** AFI 36-2406, _Officer and Enlisted Evaluation Systems_ (15 Apr 2005); AFPD 36-24, _Military Evaluations_ (11 Jun 93).

**BACKGROUND**

The Officer Performance Report (OPR), AF Forms 707A and 707B, and the Promotion Recommendation, AF Form 709,

are used by evaluators in the promotion recommendation process. The purpose of the Officer Evaluation System is to pro-

vide:

1. Reliable feedback to officers on how well they meet the Air Force's expectations at each point in their professional

growth and on how they can improve;

2. A cumulative record of the officer's performance; and

3. Promotion boards the means to differentiate among officers on the basis of performance in determining who is the

best qualified for promotion.

**CRITERIA**

Key to the Officer Evaluation System is the separation between the AF Form 707 and AF Form 709, clearly splitting

evaluation of one's current performance from that officer's promotion potential. The AF Form 707 provides only two pos-

sible ratings as to each aspect evaluated, those being "meets standards" and "does not meet standards". The narrative

description of the officer's performance is also highly condensed in comparison, and reference to promotion potential is

specifically prohibited. In the Air National Guard, the use of AF Form 709 is used only with respect to promotion to Colo-

nel and promotion to Lieutenant Colonel under the Reserve Officer Promotion Management Act (ROPMA). Specific pro-

cedures are established by NGB/CF with coordination of HQ AFPC.

Although promotion potential is not a direct consideration in preparation of the AF Forms 707, comments made in the

narrative summary of the officer's performance should provide an indication of whether or not the officer is capable of

assuming greater responsibilities. This is key in the AF Form 707 being considered by a promotion board, or in providing

the appropriate earlier basis to support an AF Form 709 recommendation for promotion consideration to Colonel or Lieu-

tenant Colonel under ROPMA provisions. NGB standards currently require that the most recent two OPRs contain appro-

priate statements as to suitability for increased responsibility for the individual to be favorably considered for promotion.

In the consideration of Judge Advocate officers, an appropriate description in their narrative summary describing their

professional accomplishments is appropriate. It would be both wise and helpful for the rater to coordinate with the State

Judge Advocate on appropriate comments to be placed in a Judge Advocate Officer's rating.

_**KWIK-NOTE: The ANG has far too long lagged behind the Active Air Force and the AFRES in the written quality of OPRs.**_

_**Commanders should ensure proper attention is given to writing top quality OPRs.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

**SECTION**

Officership

1-24

Promotion of ANG Officers

1-31

_**Air National Guard Commander's Legal Deskbook**_

71

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-24 Officership**_

_**Page 1**_

**Officership**

**Updated by Major Jeffrey Knickerbocker, November 2008**

**AUTHORITY:** DoD 5500.7-R, _Joint Ethics Regulation_ (JER)( C6, 23 Mar 2006); UCMJ (as applicable); state military code.

**STANDARDS AND EXPECTATIONS**

Officers should conduct their personal and professional lives such that they could withstand scrutiny from outside the

Air National Guard. That is what OFFICERSHIP entails. As commanders, you have access to personnel, property and

equipment which is entrusted to you by the Air National Guard. Any use of Air National Guard manpower or resources

for personal benefit is improper. For example, transportation squadron personnel cannot work on private vehicles on

duty, or utilize government facilities or equipment to repair private vehicles off duty for themselves, other unit members

or you. These are just two of the areas which require constant vigilance to avoid breakdowns in officership.

Officership also requires that the conduct of your fellow officers be evaluated by the same high standards commanders

uphold. Officers are not officers only while in uniform. If officers leave duty and engage in misconduct, they should be

held to the same standard as an officer who engages in misconduct on duty. There should be no differentiation. Individu-

als who provide continuously outstanding performance of their duties and are super troops in all respects, but engage in

criminal activity while off duty are still criminals. They have simply limited the misconduct to specific times. Misconduct

on or off duty is still misconduct. You, as commanders, must insure your junior officers recognize the responsibilities of

officership and its continuous application to an officer's conduct.

The subjects of the _Related Topics_ listed below are those that adversely affect officership.

_**KWIK-NOTE: Breakdowns in officership frequently have legal ramifications.**_

REL **ATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Administrative Discharge of Officers

24-4

Alcohol Abuse

10-3

Bad Checks

23-3

Claims

18-2

Dependent Support

23-10

Driving While Intoxicated and Other Offenses Involving Intoxication

8-17

Drug Abuse

10-4

Financial Responsibility

23-12

Professional and Unprofessional Relationships

7-4

Fraud, Waste and Abuse

16-7

Sexual Harassment

9-8

_**Air National Guard Commander's Legal Deskbook**_

72

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-25 Requesting Orders – Problem Areas**_

_**Page 1**_

**Requesting Orders – Problem Areas**

**Updated by Lt Col Christine Lennard, February 2015**

**AUTHORITY** : AFI 33-328, _Administrative Orders_ (16 Jan 07); AFI 33-328, ANG Supp., _Administrative Orders_ (07 Aug 15); AFI 65-103, _Temporary Duty Orders_ (5 Aug 05). 

## INTRODUCTION

This topic summarizes the purpose of military orders and special problems associated with failing to adequately state the

purpose for travel when requesting orders. This is especially important to establish legitimacy for the travel and to with-

stand potential scrutiny if a question of Fraud, Waste and Abuse is raised.

**GET THE "PURPOSE" CLAUSE RIGHT**

When an ANG member travels on technician or military orders, it is recommended that the section of the order entitled

"purpose" specify in some detail the purpose of the trip, rather than provide merely a general statement such as, "Meet-

ing at Pentagon." For example, stating that the trip is to a specific base (Stratton ANGB) for a specific reason (Contempo-

rary Base Issues Course) is preferred to "travel to NY for JAG meeting." Detailing the purpose of the trip may be of assis-

tance if justification for the trip is required.

Some sample "Do's" and "Don'ts" for the order's purpose clause:

DON'T just write:

1. "Official Business"; or

2. "Meeting at (ANGSC) (Pentagon, Washington, DC)."

DO write:

1. "Attend TJAG Annual Survey of the Law - Chicago, IL";

2. "Meeting at Pentagon, Washington, DC - (MAJCOM) Senior Commanders Conference"; or

3. "Meeting at ANGRC - to discuss with DP unit personnel upgrades."

**DON'T FORGET UCMJ JURISDICTION**

For OCONUS trips or other situations where an ANG member is in Title 10 status, the orders should expressly state

that the member is "Subject to the jurisdiction of the UCMJ." For ANG units or members going OCONUS, orders

should specify the member is assigned to the 201st FSS, Joint Base Andrews for ADCON, as well as the Active Air Force

organization of attachment for OPCON and ADCON. In addition, the Remarks section of the individual's orders should

contain a statement concerning OPCON AND ADCON.

_**KWIK-NOTE: Incomplete purpose clauses in orders may expose the member and AROWS orders clerk to scrutiny.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Fraud, Waste and Abuse

16-7

TDY and Travel

27-9

Travel Advances

27-10

Travel Vouchers

27-12

Visits to Other Bases

27-13

_**Air National Guard Commander's Legal Deskbook**_

73

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-26 Palace Chase**_

_**Page 1**_

**Palace Chase**

**Updated by Major Jeffrey Knickerbocker, November 2008**

**AUTHORITY:** AFI 36-3205, _Applying for the Palace Chase and Palace Front Programs_ (10 Oct 2003); AFI 36- 3209, _Separation_ _and Retirement Procedures for Air National Guard and Air Force Reserve Members_ (14 Apr 2005)(paras. 2.24.1.2 3.13.2.1.2). 

## INTRODUCTION

PALACE CHASE is an early release program that allows active United States Air Force officer and enlisted members to

request transfer from active military service to an Air Reserve Component (ARC). These releases are based on the needs

of the ANGUS and United States Air Force Reserve (USAFR) by AFSC and manning levels in the Air Force.

PALACE CHASE members consent to recall to extended active duty if they fail to report to the ARC assignment, fail to

satisfactorily participate in ARC training, or fail to satisfactorily perform or behave in accordance with 10 U.S.C

§12301(d). Enlisted members must serve two times the amount left of their commitment and an officer must serve three

times the amount left. Contract time is not less than 1 year or greater than 6 years.

**ACCESSIONS**

Recruiters and units can assist the Air Force Personnel Center (AFPC), Military Personnel Flight, Personnel Relocation

Element (DPMAR) in expediting the PALACE CHASE accession process by promptly notifying AFPC of the availability

of positions.

**RECALL PROGRAM**

Guard unit commanders are faced with a PALACE CHASE problem when members who have been released early from

their active duty commitments because they agreed in writing to serve in the ANG fail to report, satisfactorily partici-

pate, or satisfactorily perform or behave as required by the gaining ANG unit. Commanders do not have the authority to

discharge contracted PALACE CHASE personnel. When faced with the problem of an unsatisfactory PALACE CHASE

participant, Commanders must notify HQ AFPC/DPPRSR, which will determine whether the member will be PROC-

ESSED FOR RETURN TO ACTIVE DUTY or PROCESSED FOR DISCHARGE. This must be coordinated with NGB.

**Recall Procedures for Failure to Report or Return After the First Unit Training Assembly**

a. Send certified return receipt letter to member expressing intent to recall for failure to report within 10 days of the report date. Send letter by first class mail when attempts to deliver by certified mail are unsuccessful. Complete an affidavit of service (by mail) and file it in the case file if the member fails to acknowledge receipt of the letter sent by certified or first class mail.

b. Send letter of notification to HQ AFPC/DPPRSR within 10 workdays of all PALACE CHASE personnel who fail to re-

port or fail to return after the first UTA.

c. If the member fails to acknowledge notification to report on the date specified, proceed with the recall request.

d. Forward the following documents to HQ AFPC/DPPRSR with the request for recall:

AF Forms 100, 1288, and 2631

DD Form 40102, DD Form 93, and DD From 214

SF 93, Report of Medical History

Copy of certified letter of notification of intent to recall to member.

_**Air National Guard Commander's Legal Deskbook**_

74

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-26 Palace Chase**_

_**Page 2**_

e. Hold the member's FPRG until HQ AFPC/DPPRSR provides disposition instructions.

**Recall Procedures for Unsatisfactory Participation**

Take the following appropriate actions within 30 days of each infraction. Failure to do so may make it legally impossible

to recall the member. Notify members by certified return receipt mail after each unexcused absence or UTA. Send the let-

ter by first class mail when attempts to deliver by certified mail are unsuccessful.

a. After the fourth unexcused absence, notify the member that they are in violation of their PALACE CHASE contract

and that continuing such conduct could result in a demotion and a recall to EAD.

b. Demote members as the commander determines appropriate in accordance with the applicable directive.

c. After a member's ninth unexcused absence, initiate recall procedures as outlined below.

**Recall Procedures for Unsatisfactory Performance or Behavior**

Some examples of unsatisfactory performance or behavior are: not fulfilling responsibilities commensurate with the mem-

bers grade, not completing on-the-job training within the required time frames, or not maintaining weight standards.

Take the following appropriate actions within 30 days of each infraction. Failure to do so may make it legally impossible

to recall the member.

a. Counsel members concerning unsatisfactory performance or behavior. Document the counseling and have the member

acknowledge understanding of what is expected of him/her.

b. Issue letters of reprimand or take other administrative action as appropriate. Document the receipt of the letter of rep-

rimand and have the member acknowledge understanding what is expected of him/her.

c. Demote members as the commander determines is appropriate.

d. If all else fails, initiate recall procedures as outlined below.

**Procedures for Initiating Recall for Unsatisfactory Participation, Unsatisfactory Performance, or Unsatisfactory**

**Behavior**

a. Notify the member of the intent to recall, using certified return receipt mail. Send the letter by first class mail when

attempts to deliver by certified mail are unsuccessful.

b. Complete an affidavit of service (by mail) and file it in the case file, if the member fails to acknowledge receipt of the letter sent by certified and first class mail.

c. Maintain copies of correspondence and certified mail receipts.

d. Write to the postmaster at the member's last known address and ask for verification of the address if the certified re-

ceipt does not come back.

e. Forward correspondence to the member's new address, if available.

f. Proceed with the recall if the postmaster confirms that the last known address is correct. Include the postmaster's re-

sponse in the package. Make every effort to locate the member's current address.

_**Air National Guard Commander's Legal Deskbook**_

75

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-26 Palace Chase**_

_**Page 3**_

g. Complete a check of the NCIC IAW 5 U.S.C. §9109.

h. Process the member for immediate discharge instead of recall if the NCIC check reveals disqualifying information.

i. Submit the recall request to HQ AFPC/DPPRSR including AF Forms 100, 1288, and 2631; DD Forms 40102, 93 and

214; and SF 93; a memorandum stating that the NCIC found no derogatory information; Postmaster verification (if appli-

cable), all notices to the member and any demotion orders.

j. Hold the member's FPRG until HQ AFPC/DPPRSR provides disposition instructions.

k. Mail copies of correspondence on all recall requests to Unit CC and MPF, and ANGRC/DPMMO.

l. Update the member's new GI Bill eligibility status DIN EP1 to "H," upon receipt of recall orders.

_**KWIK-NOTE: The ANG Commander's objective in dealing with unsatisfactory PALACE CHASE participants should, in**_

_**most cases, be to successfully have the member recalled to active duty as an E-1.**_

_**RELATED TOPICS:**_

_****_

_****_

_****_

_****_

_****_

_****_

_****_

_****_

_****_

_****_

_****_

_**SECTION**_

Administrative Demotion of Airmen

24-2

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Admonitions and Reprimands - Administrative

24-5

Judicial Review of Military Administrative Actions

18-5

Legal Reviews

17-11

Mailing or Delivery - Affidavits and Certificates of Service

24-10

Nonjudicial Punishment

24-11

Quality Force Management Actions

24-12

Unsatisfactory Participation

1-40

Transfer to the Individual Ready Reserve (IRR)

1-37

_**Air National Guard Commander's Legal Deskbook**_

76

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-26 Palace Chase**_

_**Page 4**_

_Attachment_

Unit Letterhead

Date

MEMORANDUM FOR Name and address of unit member

FROM: Unit Commander's Office Symbol

Address

SUBJECT: Unsatisfactory Participation

1. You are advised that your unexcused absence(s) from the scheduled training period(s) of (has) (have) been recorded.

2. You are aware from previous briefings and/or counseling of your requirement to attend all scheduled inactive duty and

other required training periods and the serious nature of your absence.

3. As a Palace Chase member, your failure to satisfactorily participate in unit training assemblies (UTAs) and your other

unit training requirements is a violation of your Palace Chase contract and could result in your demotion and involuntary

recall to Extended Active Duty.

[If demotion action is being initiated, use: "4. You are advised that an action which could result in your demotion in

grade is being initiated at this time, and of which you will receive separate notice." If this paragraph is used, renumber the remaining paragraphs].

4. You may have a valid excuse for one or more of these unexcused absences because of illness, injury, emergency or

other circumstances beyond your control. If such is the case, you must furnish this office, not later than 15 days from the

date of this letter, appropriate documentation such as a doctor's certificate, affidavit, etc. supporting your written request to be excused. If documentation is not readily obtainable, indicate in your request the date it will be furnished. All requests for excused absences are subject to approval. The denial of the request to be excused or failure to submit a writ-

ten request within the time limits may result in initiation of a separation action with a recommendation for you to re-

ceive a discharge under other than honorable conditions, nonjudicial punishment, administrative demotion, or other ad-

verse administrative action.

5. If I accept your explanation and consider your unexcused absence(s) as excused you may be required to make up the

training. If the make up training is not performed, as ordered, it will be recorded and counted as an unexcused absence.

6. You are ordered to report for duty at the next scheduled Unit Training Assembly on (date), beginning at (time) hours,

place of duty:__________________________.

7. If you have any questions, you are to contact (POC) at (phone #).

Signature Block

Commander

_**Air National Guard Commander's Legal Deskbook**_

77

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-27 Credit for Part-Time Service**_

_**Page 1**_

**Credit for Part - Time Service**

**Updated by Lt Col Karen Hornsby and Capt Alice Niedergall, June 2001**

**AUTHORITY:** NGB Personnel Qualifications Handbook (18 Jun 90), para 3 (1998 change). 

## INTRODUCTION

This topic discusses credit for part-time National Guard service which will be granted when an individual applies for a

full-time excepted civil service position.

**THE CREDIT**

There is authority for part-time National Guard military service to be considered full-time experience when evaluated

against the qualification requirements for a technician position. Each state is permitted to dictate the amount of credit

for each year of guard experience. Check with your state's Human Resource Office for the specific formula. It is therefore

important that the Optional Application for Federal Employment (OF 612) for a specific vacancy announcement reflect

all part-time National Guard service.

Commanders should help ensure that this information, as well as all future information generally applicable to techni-

cian announcements, is disseminated to all personnel.

_**KWIK-NOTE: Applicants for full-time technician positions should include their part-time service in the National**_

_**Guard on the Application for Federal Employment in order to receive proper credit for their years of service.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Labor Relations

5-5

_**Air National Guard Commander's Legal Deskbook**_

78

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-28 Personnel Security Access Program**_

_**Page 1**_

**Personnel Security Access Program**

**Updated by Major Jeffrey M. Knickerbocker, 2008**

**AUTHORITY:** AFI 31-501, _Personnel Security Program Management_ (27 Jan 2005); DoD 5200.2-R, _Personnel Security Program_ (1 Jan 1987, C3, 23 Feb 96); DoDD 5200.2, _DoD Personnel Security Program_ (9 Apr 99). 

## INTRODUCTION

The USAF Personnel Security Program is governed by AFI 31-501. This regulation establishes Air Force personnel secu-

rity policies and procedures; establishes the standards, criteria, and guidelines upon which personnel security determina-

tions are made; prescribes the kind and scope of personnel security investigations required; details the evaluation and

adverse action procedures by which personnel security determinations are made; and assigns overall program manage-

ment responsibility. This regulation applies to Air Force members or applicants, including ANG and USAFR personnel,

and to civilian employees of the Air Force, including applicants for employment under certain conditions. This regulation

essentially deals with assignments to sensitive duties or access to classified information.

**STANDARDS**

There are two separate standards in this regard: (1) Military Service Standard; and (2) Clearance and Sensitive Position

Standard. The former standard applies to a person's SUITABILITY for military service, and is based upon national secu-

rity criteria. The latter standard applies to a person's ELIGIBILITY for access to classified information, and is based upon the person's loyalty, reliability and trustworthiness. The ultimate decision in applying either of the security standards

must be based upon all available facts, and is essentially a common sense determination. The local Commander must

first determine the member's suitability before submitting the request for a member's security clearance to the Air Force

or DoD agency for determination of the member's eligibility. If the Commander determines the member is not suitable,

there is no need for the eligibility determination; or if the Commander determines the member is suitable, but the mem-

ber is found not to be eligible for a security clearance, the member will be processed for administrative discharge because

of failure to have or maintain a security clearance. The grounds for discharge could include Convenience of the Govern-

ment and the character of the discharge could be Entry Level Separation, if applicable and appropriate.

**ELIGIBILITY DETERMINATION**

Security clearance eligibility authority resides with the Air Force Central Adjudication Facility (AFCAF/PSA, 229

Brookely Ave, Bolling AFB 20032) The criteria for determining eligibility for a security clearance is based, in part, upon

criminal or dishonest conduct, any behavior or illness that may cause significant defects in judgment or reliability, use of intoxicants to excess, acts of sexual misconduct, etc. The Administrative Assistant for Security to the Secretary of the Air Force has overall responsibility for this program within the Air Force.

**COMMANDER'S AUTHORITY**

During wartime, or during a Presidential declaration of national emergency, wing commanders or their equivalents may

approve individual access to classified information at a higher level than authorized by an existing clearance. Command-

ers may also suspend individual access to classified information or to restricted areas when continued access may be in-

consistent with the interests of national security.

**ADVERSE ACTIONS AGAINST PERSONS IN SPECIAL ACCESS PROGRAMS**

Commanders contemplating disciplinary action which could result in discharge or removal of members or employees

who have been in special access programs as defined in AFI 31-501 must obtain approval from the program before

_**Air National Guard Commander's Legal Deskbook**_

79

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-28 Personnel Security Access Program**_

_**Page 2**_

proceeding. See AFI 31-501, para 8.9. Commanders should ensure any required clearance authority is expeditiously ob-

tained to minimize the processing time of these actions, and should coordinate with the Staff Judge Advocate in advance.

**MANDATORY REPORTING**

As a commander you have a responsibility to suspend a security clearance if you believe that individual access to classi-

fied information should be limited or suspended. Misuse of a government credit card requires that you make a determina-

tion about continued access to classified information. See AFI 31-501, paragraph 8.1.2. Chapter 8 of AFI 31-501 con-

tains additional guidance; examples of conduct that would require limiting access to classified information include: Re-

fusal or intentional failure of an individual requiring an investigation or periodic reinvestigation to provide the personnel security questionnaire information or release statements for review of medical, financial, or employment records; refusal

by an individual to be interviewed in connection with a personnel security investigation, regardless of whether the infor-

mation is requested by the investigative agency or the AFCAF; or incidents of theft, embezzlement, child or spouse

abuse, unauthorized sale or use of firearms, explosives, or dangerous weapons, or misuse or improper disposition of gov-

ernment property or other unlawful activities. Once access to classified has been suspended only AFCAF can reauthorize

access.

_**KWIK-NOTE: Scrutinize to whom you give a security clearance, and know that certain adverse actions against an individual**_

_**with a security clearance may only proceed with the permission of Security Clearance authorities.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Administrative Discharge Of Enlisted Personnel

24-3

Administrative Discharge Of Officers

24-4

Alcohol Abuse

10-3

Classified Material

14-2

Computer Acquisition And Security

25-6

Courts –Martial

8-15

Drug Abuse

10-4

For Official Use Only

14-3

National Security Cases

1-21

OSI And SF Reports

8-14

Quality Force Management Actions

24-12

Revocation Of Security Clearance

24-13

_**Air National Guard Commander's Legal Deskbook**_

80

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-29 Pregnancy of ANG Personnel**_

_**Page 1**_

**Pregnancy of ANG Personnel**

**Updated by Major Jeffrey Knickerbocker, November 2008**

**AUTHORITY:** ANGI 40-104, _Pregnancy of Air National Guard Personnel_ (12 Aug 2008); AFI 41-115, _Authorized Health Care_ _and Health Care Benefits in the Military Health Services System_ (28 Dec 2001).

I **NTRODUCTION**

Any ANG member who becomes pregnant is allowed to continue performing the duties of her assigned AFSC as long as

certain precautions and procedures are followed as provided in ANGI 40-104.

**PROCEDURES**

The member's pregnancy must first be verified by an ANG medical officer, who then notifies the member's commander

or supervisor of that fact. The commander or supervisor then advises the medical officer of the member's assigned du-

ties. The medical officer performs a medical evaluation to determine if a physical profile change is required based upon

the pregnancy and the member's normal duties in the assigned AFSC.

Pregnant members may be excused from training at the discretion of the medical officer, but must be excused from an-

nual or other active duty training which is scheduled at least six weeks before the expected birth date. Service school at-

tendance is permitted so long as any required physical activity can be tolerated by the expecting mother.

Commanders should ensure that all members who are new parents are advised of their dependent care responsibilities as

soon as possible after birth and return to duty.

**MEDICAL CARE DURING PREGNANCY**

Medical care for pregnant members is authorized at government expense only while serving on a tour of duty under Title

10 or a full-time active duty tour under Title 32 (AGR), which exceeds thirty days duration. Other medical care is only

authorized in accordance with the Line of Duty Regulation.

**CONCLUSION**

Eligibility for Tricare coverage by members of the reserve component (Uniformed Services Health Benefits Program un-

der Title 10, Chapter 55) has substantially changed the delivery of health care and dental benefits for service members

and their dependents. Consult with judge advocate and medical service officers when dealing with pregnancy or any

other medical issues which impact members.

_**KWIK-NOTE: Commanders should closely follow the advice of their medical officers when dealing with training require-**_

_**ments of pregnant ANG members.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

AFSC Reclassification and Training

1-3

Dependent Care Responsibilities

1-10

AGR Program

11-4

Medical and Dental Care During Inactive Duty Training

19-8

Medical and Dental Care to Persons Authorized

19-10

Medical Evaluation (Profile Change)

19-12

_**Air National Guard Commander's Legal Deskbook**_

81

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-30 Promotion of ANG Enlisted Personnel**_

_**Page 1**_

**Promotion of ANG Enlisted Personnel**

**Updated by Major Jeffrey M. Knickerbocker, October 2008**

**AUTHORITY:** DoDD 1308.1, DoD _Physical Fitness and Body Fat Program_ (30 Jun 04); ANGI 36-2502, _Promotion of Airmen_ (6

Aug 2002); ANGI 36-2503, _Administrative Demotion of Airmen_ (1 Mar 2004); AFI 36-3209 _Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members_ (14 Apr 2005).

**PROMOTION POLICY**

The intent of the Air National Guard enlisted promotion policy is to advance airmen who have demonstrated the poten-

tial for greater responsibility based on their past and present performance. This policy is to be implemented without re-

gard to race, gender, color, religion, ethnic group, or national origin.

ANG promotion criteria are designed to ensure that airmen are given timely consideration for promotion. However, due

to limitations in grade vacancies, an airman may meet the criteria for promotion without being selected for promotion.

In such cases, only the best-qualified airmen may be promoted.

**ADJUTANT GENERAL'S AUTHORITY**

The State Adjutant General has the authority to promote airmen. The authority to promote through the grade of Techni-

cal Sergeant may be delegated to subordinate unit Commanders. Before promotion to any grade, the immediate Com-

mander must recommend promotion. Before recommending promotion, the Commander must ensure the airman's duty

performance and training progress clearly warrant promotion. Particular emphasis is placed on supervisory and leader-

ship potential as well as previously demonstrated technical skills for promotion to the NCO grades. Requirements for

promotion are contained at Table 2.1 of ANGI 36-2502.

**DISQUALIFYING FACTORS**

Certain conditions may make an airman ineligible for promotion. _See_ ANGI 36-2502, para 1.3. Airmen are disqualified

for promotion if they:

1. Fail to meet the requirements of the physical fitness programs prescribed in ANGI 10-248;

2. Have a medical profile of 4, and are not qualified for worldwide duty (temporary profiles may be waivable);

3. Do not receive a recommendation for retention by the unit commander;

4. Decline in writing to reenlist or extend;

5. Are unsatisfactory performers IAW paragraph 3.13.2, AFI 36-3209;

6. Are undergoing administrative demotion IAW ANGI 36-2503;

7. Have requested voluntary retirement or separation including joining another military component;

8. Are in excess status; or

9. Are being processed or considered for involuntary separation IAW AFI 36-3209.

_**Air National Guard Commander's Legal Deskbook**_

82

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-30 Promotion of ANG Enlisted Personnel**_

_**Page 2**_

**UNIT PROGRAMS**

Commanders should be aware of special promotion opportunities for airmen, such as the Deserving Airmen promotion,

which allows a Commander to promote to SSgt through TSgt without regard to position vacancy, Exceptional Performer

Promotions (EPP), Officer Training Promotions, and Retraining Promotions. For information on these promotion oppor-

tunities, Commanders should consult with DP.

Many units develop unit regulations or supplements to existing regulations to implement local procedures for promotion

of airmen. Should additional questions arise concerning promotion, Commanders should consult their Staff Judge Advo-

cate and MPF Chief.

_**KWIK-NOTE: Know which commanders have the authority to promote to certain grades. Promotion authority is often com-**_

_**mensurate with demotion authority.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

USAF Instructions, ANG Supplements and Unit Instructions

1-39

Weight and Body Fat Management Program

24-15

Unsatisfactory Participation

1-40

Medical Evaluation (Profile Change)

19-12

_**Air National Guard Commander's Legal Deskbook**_

83

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-31 Promotion of Officers**_

_**Page 1**_

**Promotion of Officers**

**Updated by Major Jeffrey Knickerbocker, November 2008**

**AUTHORITY:** 10 U.S.C. 14001, _et seq_.; 10 U.S.C. 12203; 32 U.S.C. 307; AFI 36-2501, _Officer Promotions and Selective Continuation_ (16 June 2004); AFI 36-2504, _Officer Promotion, Continuation and Selective Early Removal in the Reserve of the Air Force_ (9 Jan 2003); AFI 36-2604, _Service Dates and Dates of Rank_ (2 Dec 2004); ANGI 36-2505, _Federal Recognition Boards for Appointment or Promotion in the Air National Guard Below General Officer_ (1 Oct 07); and ANGI 36-2504, _Federal Recognition of Promotion in the Air National Guard of the United States and as a Reserve of the Air Force Below the Grade of General Officer_ (28 Jul 04). 

## INTRODUCTION

Promotion and retention of all reserve officers is governed by The Reserve Officer Promotion Management Act

(ROPMA), found at 10 USC 14001 _et seq._ Through ROPMA, it was the design of Congress to assist the several service

secretaries in streamlining force management. ROPMA links accessions, assignments, promotions and separations under

a single system. Although this suggests some economy of administration, ROPMA is extremely complex and requires

careful scrutiny. Unlike ROPA, its predecessor, ROPMA is essentially a quota system and not a pure merit system.

**FEATURES**

Here are some of the notable features of ROPMA:

1. **Reserve-Active Status List**

ROPMA establishes a Reserve-Active Status List (RASL) by rank and in order of seniority. This is a single list maintained

by the secretary of each service for the armed force under the secretary's jurisdiction. Reserve components determine pro-

motion quotas every year for each rank and competitive category. The competitive categories are specified by the service

secretary. The quotas are based on current unit manning requirements, force structure changes and anticipated gains and

losses.

2. **Parallel Promotion System**

The Air National Guard continues to benefit from the existence of parallel promotion systems.

a. Mandatory Promotion Consideration: First lieutenants, captains and majors not promoted through position vacancy

are considered by a Central Selection Board convened periodically by the Air Reserve Personnel Center.

b. Position Vacancy Promotion: Officers who have demonstrated high potential and exceptional abilities may have an op-

portunity for accelerated promotion through the unit to which they are assigned. An officer must be promoted into a va-

cant position and cannot be under consideration for promotion by a Central Selection Board.

c. Competitive Categories: The old competitive categories remain the same for line officers, judge advocates, chaplains,

and medical professionals. New under ROPMA is that Air National Guard Officers in each category are considered for

promotion separately from Air Force Reserve Officers.

3. **Time In Grade**

ROPMA incorporates new time-in-grade provisions both for promotion and retirement.

Promotion: Minimum and maximum time-in-grade under the mandatory system for promotion to the grades of Captain

through Colonel are as follows:

_**Air National Guard Commander's Legal Deskbook**_

84

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-31 Promotion of Officers**_

_**Page 2**_

Minimum

Maximum

To: Captain

2

5

Major

4

7

Lt Col

4

7

Col

3

None

Retirement: Majors and below must serve for six months in grade to retire at that grade. Lieutenant Colonels and above

must serve a minimum of three years to retire at that grade. Exception is made for involuntary retirement on account of

reaching maximum age or service time. The exception does not apply in the event of selective non-retention.

4. **Mandatory Separation Dates**

Officers in the grade of 1st Lt and Captain will be separated if twice passed over for promotion. Majors twice passed over

will be separated once they have reached twenty years of service. Lt Colonels must separate the first day of the month

after the month in which 28 years of commissioned service (TFCSD) is completed. Colonels must separate the first day

of the month after the month in which 30 years TFCSD is completed.

**DISCUSSION**

The weighted factors considered under the mandatory promotion system remain the same. Professional Military Educa-

tion, Advanced Degrees, Awards & Decorations and Participation are the keys to successful consideration.

Commanders should periodically assess the configuration of their officer cadre. They should be aware of that window

that exists from the time an officer first becomes eligible for promotion until the time when he or she must meet a man-

datory promotion board on account of time in grade. By continuously updating the picture for out years, a commander

can use both avenues of the promotion system to balance force structure and assure continuity. Remember, once an offi-

cer is listed for consideration by a mandatory promotion board he or she cannot be unit vacancy promoted.

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Federal Commission Status Withdrawal

1-16

Federal Recognition of Officers

1-17

_**Air National Guard Commander's Legal Deskbook**_

85

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-32 Recruiting**_

_**Page 1**_

**Recruiting**

**Updated by Major Jeffrey Knickerbocker, November 2008**

**AUTHORITY:** ANGI 36-2002, _Enlistment and Reenlistment in the Air National Guard and as a Reserve of the Air Force_ (1Mar 04); ANGI 36-2602, _Air National Guard Recruiting Expenditures and Management of Recruiting and Retention Programs_ (28 Mar 97). 

## INTRODUCTION

The purpose of the Air National Guard Recruiting and Retention Program is to provide The Adjutant General and unit

commanders with quality personnel resources. It also features tools and incentives to assist in the retention of quality

members to meet unit readiness, force management, and diversity objectives.

**PROGRAMS**

Several programs including PALACE CHASE, PALACE FRONT, and Project Capture have been developed to transition

high quality officer and enlisted members and former members of the active Air Force into the Air National Guard. Other

incentives like the Montgomery GI Bill, Career Motivation Program and Family and Employer Support Programs support

the objective of obtaining 100% strength in all critical positions.

**PROGRAM MANAGEMENT**

State recruiting and retention plans, together with funding requests, are prepared on a fiscal year basis and are submitted

for approval to ANG/DPPA. Financial management is an important component in the overall success of the programs

and a close relationship should be maintained by Recruiting and Retention Superintendents, base-level Comptrollers and

the USPFO.

Recruiting and retention activities often interface with private, public and commercial activities. To that extent, it is important that contractual and risk assessment matters be coordinated with your Staff Judge Advocate (SJA), Public Affairs

Officer (PAO) and Contracting Officer.

**STANDARDS OF CONDUCT**

Commanders should be aware that special standards of conduct are prescribed for Air National Guard Recruiters. These

standards are contained in Chapter 3 of ANGI 36-2602 and are designed to insure that the integrity and professionalism

of the program and its employees are maintained at the highest level. In addition AGRs are subject to the ethical require-

ments in the Joint Ethics Regulation (DOD 5500.7-R).

_**KWIK-NOTE: Recruiting and retention remain a challenge for the Air National Guard, and remain a priority with leader-**_

_**ship.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Palace Chase

1-26

Relationship with Other Military Components

11-6

Stop - Loss

20-6

_**Air National Guard Commander's Legal Deskbook**_

86

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-33 Remission and Waiver of Indebtedness**_

_**Page 1**_

**Remission and Waiver of Indebtedness**

**Updated by Lt Col Karen Hornsby and Lt Col Dennis O'Connell, June 2001**

**AUTHORITY:** DFAS-DEM 7073-1 Chapter 73; DFAS-DEM 7073-2, Chapter 6; DoD 7000.14-R, _DoD Financial Manage-_

_ment Regulation_ , Vol. 4 and 5. 

## INTRODUCTION

There are many instances in which an airman or officer may become indebted to the Air Force, due to overpayments

from the Air Force or other indebtedness determinations. Collection by the withholding of the member's later earnings

can create a real hardship.

There are certain statutory provisions which authorize the Air Force, in limited circumstances, effectively to overlook

this indebtedness.

**REMISSION OF INDEBTEDNESS**

When the Secretary of the Air Force (SAF) considers it in the best interest of the United States, the SAF may cancel any

part of an enlisted member's indebtedness before or at the time of that member's honorable discharge. _See_ 10 U.S.C.

9837.

**Criteria for Remission**

Each remission request is considered on its own merits, under certain basic criteria established by the SAF. Application

of the following criteria is flexible and not necessarily limited to evidence that would be admissible in court:

1. Has the member acted in good faith?

2. Did the member derive any direct benefit and to what extent?

3. Did the debt occur through any fault of the member?

4. Are there hardship or compassionate aspects of the case?

5. What are the member's grade, primary Air Force specialty code (AFSC), and number of years of service?

6. What is the Air Force's investment in the member, and is it desirable to retain the member in the service?

Detailed procedures for processing cases involving requests for remission are found in DFAS-DEM 7073-1, Chapter 73.

The legal effect of SAF REMISSION action is to CANCEL, in whole or in part, the AMOUNT OWED.

**WAIVER OF CLAIMS FOR ERRONEOUS PAYMENTS OF PAY AND ALLOWANCES**

In an effort to aid persons who had received erroneous payments in good faith and to reduce the number of requests for

private acts of Congress seeking waiver of collection action for those payments, various waiver statutes were enacted by

Congress. The SAF may waive, in whole or in part, a claim of the United States in an amount aggregating not more than

$1,500.00, without regard to any repayments that have been made. The SAF may deny an application for waiver of a

claim in any amount. In such cases, however, if the claim is more than $1,500.00, the employee or member must be ad-

vised of the right to appeal the denial to the Comptroller General.

_**Air National Guard Commander's Legal Deskbook**_

87

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-33 Remission and Waiver of Indebtedness**_

_**Page 2**_

**Conditions for Waiver**

In order for a claim arising from an erroneous payment to be waived, the following conditions must be met:

1. The waiver application must have been received by the General Accounting Office (GAO) or the Air Force within three

years following the date on which the erroneous payment was discovered. It is the date of discovery of the error, not the

actual date of the erroneous payment or the date the applicant is notified of the error, that is controlling. The date of discovery is that date when it is first determined by an appropriate official that an erroneous payment has been made;

2. Collection action on the claim must be against equity and good conscience and not in the best interest of the United

States; and

3. There must be no indication of fraud, misrepresentation, fault, or lack of good faith on the part of the applicant.

Detailed procedures for processing requests for waiver are contained in DFAS-DEM 7073-1, Chapter 73.

The Comptroller General may waive a claim of the United States arising out of an erroneous payment to a member in

any amount, if the required criteria are met.

The legal effect of SAF waiver is the government effectively SURRENDERS ITS RIGHT TO RECOVER the indebtedness.

**REMISSION AND WAIVER COMPARED**

The statutes authorize waiver (5 U.S.C. 5584, 10 U.S.C. 2774 , 32 U.S.C. 716) and remission (10 U.S.C. 9837) which are

both intended to be relief measures. However, there are a number of differences in the scope and application of the two

remedies:

1. Remission is available for the relief of any outstanding indebtedness, regardless of how it arose. The waiver remedy

applies only to erroneous payments of pay and allowances;

2. Remission is available only to enlisted members on active duty. However, officers and enlisted members of the ANG

who are held liable for loss, damage, or destroyed government property (for example, as a result of a Report of Survey),

may apply for remission or cancellation of such liability. See 32 U.S.C. 710(c). Waiver applies to all active and retired

members of the uniformed services and National Guard and to civilian employees;

3. Remission applies only to uncollected portions of the debt. Waiver applies to the full amount of the original erroneous

payment, regardless of whether any amounts had been collected;

4. With regard to remissions, the SAF may consider any financial hardship from the collection action as well as other fac-

tors personal to the enlisted member. Waiver determinations are based solely on the facts and circumstances giving rise

to the erroneous payment, including the applicant's knowledge or fault, if any, in the matter. The applicant's personal

and financial condition ordinarily has no bearing on the decision to grant or deny waiver;

5. Remission ordinarily suspends the collection of an indebtedness unless the unit commander or the Accounting and

Finance Officer directs the monthly withholding of a portion of the member's pay. On the other hand, a collection action

is continued while a waiver request is being processed, unless the criteria for suspension of collection action are met.

The determination for suspension of collection action while a waiver request is being reviewed is made on a case-by-case

basis, with consideration given to whether:

a. There is a reasonable possibility that waiver will be granted _**;**_

_**Air National Guard Commander's Legal Deskbook**_

88

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-33 Remission and Waiver of Indebtedness**_

_**Page 3**_

b. There is a reasonable assurance that the erroneous payment can be recovered if waiver is not granted; or

c. The collection of the debt will cause undue hardship.

If there is any question, you should consult with the servicing Judge Advocate.

_**KWIK-NOTE: Requests for remissions and waivers of indebtedness should be assisted in by the Judge Advocate and included**_

_**as part of the Legal Assistance Program.**_

**RELATED TOPICS:**

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**SECTION**

Legal Assistance Program

17-8

Debt Collections

23-9

Reports of Survey

25-19

_**Air National Guard Commander's Legal Deskbook**_

89

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-34 Reporting Identifiers**_

_**Page 1**_

**Reporting Identifiers**

**Updated by Major Jeffrey Knickerbocker, November 2008**

**AUTHORITY:** AFI 36-2101, _Classifying Military Personnel_ (Officer and Enlisted) (7 Mar 2006). 

## INTRODUCTION

ANG members are assigned to particular tasks based upon their training and experience pursuant to Air Force and Air

National Guard regulations and are awarded an Air Force Specialty Code (AFSC).

**NO AFSC**

There are times when individuals do not have an AFSC, such as:

1. Before members are awarded their AFSC (for example, basic trainees);

2. When individuals need to be removed from a previously awarded AFSC and retrained and reclassified into a new

AFSC (for example, an enlisted member selected for commissioning, or members who are no longer qualified for a previ-

ously awarded AFSC due to circumstance either within or beyond their control); or

3. When the previous AFSC has been modified or discontinued. However, these members still need to be identified in

the training system.

These various conditions of members who are "in between AFSCs," so to speak, cause these members to be temporarily

classified with a special number called a "Reporting Identifier (RI)."

**KEEP THE REPORTING IDENTIFIERS UNTIL NEW AFSC AWARDED OR ADVERSE ACTION BEGUN**

Reporting Identifiers are handled by the FSS Training section. Individuals should be properly classified with an RI, and

promptly removed from such classification upon obtaining a new AFSC, because members who either cannot or will not

be retrained to qualify for a new AFSC must either be demoted to a grade calling for an AFSC for which they can qualify,

or administratively discharged. Because either of these adverse actions will have as a basis the member's inability or un-

willingness to retrain, it is essential the original reason for the retraining and assignment of the RI be properly justified.

MPF personnel should consult the Staff Judge Advocate with any questions that may bear on the proper justification of

the assignment of the RI for a particular individual, before the individual is so classified, so that upon the individual's

failure to retrain and be awarded a new AFSC, any subsequent adverse actions will be based on legally sufficient grounds.

**REPORTING IDENTIFIERS vs. SPECIAL DUTY IDENTIFIERS**

RIs should not be confused with Special Duty Identifiers, special numbers used to classify certain positions such as Re-

cruiters. The Special Duty Identifier numbers do not connote the "retraining" requirements of RIs, and unlike RIs, which

are temporary classifications, Special Duty Identifiers are permanent as long as the member holds that position.

_**KWIK-NOTE: Make sure your MPF keeps track of all members with RIs so that these members are either timely awarded**_

_**new AFSCs or processed for appropriate adverse action upon their failure to timely be awarded their new AFSC.**_

**RELATED TOPICS:**

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**SECTION**

AFSC Reclassification and Training

1-3

_**Air National Guard Commander's Legal Deskbook**_

90

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-35 Report of Facts and Circumstances of Death**_

_**Page 1**_

**Report of Facts and Circumstances of Death**

**Updated by Major Jeffrey Knickerbocker, November 2008**

**AUTHORITY:** AFI 36-3002, _Casualty Services_ (25 Jul 2005); AFI 36-2910, _Line of Duty (Misconduct) Determination_ (16 Apr 2002).

**PURPOSE AND USE**

DD Form 1300 ( _Department of Defense Report of Casualty_ ) and AF Form 1613 ( _Statement of Service_ ) are the official Air Force documents prepared for deceased members while in a duty status. The primary purpose of the DD Form 1300 and AF

Form 1613 is to allow government entities to resolve claims when the death resulted from a disease or injury incurred or

aggravated during a period of military service, and in line of duty.

DD Form 1300 is prepared when a member of the Air National Guard dies from injuries received or aggravated while on

active duty for training or inactive duty for training, or dies from injuries received while going directly to or from active duty for training or inactive duty for training.

**REQUIREMENTS**

AFI 36-3002 contains complete guidance for advising next of kin (NOK) depending on the cause and circumstances of

death. It is the commander's responsibility to appoint a mature commissioned officer (First Lieutenant or above), or non-

commissioned officer (grade E-7 to E-9), or civilian of comparable grade to serve as Casualty Assistance Representative

(CAR) and advise next of kin of the circumstances of the member's death.

A detailed report is required when death is caused by:

1. Accident;

2. Wanton overindulgence in alcoholic beverages or use of drugs;

3. Any cause during a period of unauthorized absence or while the member was in a desertion status;

4. Suicide; or

5. Homicide.

The commander should consult with the Staff Judge Advocate before a casualty report is prepared.

_**KWIK-NOTE: Know when and how to prepare a casualty report.**_

**RELATED TOPICS:**

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**SECTION**

Benefits

4-2

Disposal of Personal Property

1-11

Investigations and Inquiries

16-11

Line of Duty Determinations

1-19

OSI and SF Reports

8-14

Status of National Guard Members

11-7

Veterans Benefits

4-8

_**Air National Guard Commander's Legal Deskbook**_

91

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-36 Selective Retention in the Air National Guard**_

_**Page 1**_

**Selective Retention in the Air National Guard**

**Updated by Major Jeffrey Knickerbocker, November 2008**

**AUTHORITY** : ANGI 36-2606, _Selective Retention of Air National Guard Officer and Enlisted Personnel_ (28 Feb 97); ANGI 36-2002, _Enlistment and Reenlistment in the Air National Guard and as a Reserve of the Air Force_ (1 Mar 04). 

## INTRODUCTION

Each State Adjutant General (TAG) is responsible for maintaining a stable and viable force structure. The Air National

Guard, as a reserve component of the Air Force, has developed a force management tool (ANGI 36-2606) that provides a

vehicle to ensure a quality trained force, stable promotion opportunities for lower grade personnel, and a viable combat

ready force in event of mobilization and/or contingency/peacetime commitments. A Selective

Reserve Retention Board (SRRB) is appointed by The Adjutant General to recommend the retention or non-retention of

officers and enlisted members in the ANG in accordance with (IAW) the policies and procedures provided in the instruc-

tion.

**DISCUSSION**

All ANG officers (except adjutants general, assistant adjutants general and general officers) and enlisted members will be

considered under the selective retention program if they are retirement eligible on or before 1 January of the year in

which the board convenes and are not otherwise scheduled to be separated during the calendar year of the Board (e.g.,

MSD, maximum age).

Officers who are retirement eligible will be considered under the program, even if they have not completed the minimum

promotion service time to retire in the highest grade held.

AGRs who are eligible for reserve retirement will be considered, even if they have not attained eligibility for active duty

retirement, unless they are in the "sanctuary zone" (between 18 and 20 years active duty anytime during the calendar

year in which the board is held).

Members who are serving on a Title 10 statutory tour or extended active duty anytime between January 1st and the publi-

cation of the board results for that calendar year will not be considered under the selective retention program.

**SELECTIVE RETENTION REVIEW BOARD**

The TAG appoints a Selective Retention Review Board (SRRB) to consider members for selective retention. Separate

boards are conducted for officers and enlisted members. The ANGI sets forth requirements for board composition. All

voting board members must be senior in rank to individuals being considered by the board.

The Board convenes for the purpose of evaluating the future benefits that can be expected to accrue to the Air National

Guard from the continued service of each officer it considers. The Board reviews all documents IAW paragraph 2.4.2 of

ANGI 36-2606. A member can submit letters for the board's consideration IAW paragraph 2.2.6. Continued retention

must be based on the combination of the unit commander's recommendation and organizational force management re-

quirements.

The recommendation of the commander carries substantial weight in the ultimate determination of retention or manda-

tory retirement.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-36 Selective Retention in the Air National Guard**_

_**Page 2**_

The State Adjutant General reviews the recommendations of the Board, including minority reports, and approves or dis-

approves all specific recommendations. Each member considered will be notified of the TAG's decision by letter. An indi-

vidual may request reconsideration of the board decision within 30 days of official notification or by 15 September, which-

ever is earlier, through his or her command channels. The request for reconsideration must be processed promptly to ar-

rive in the TAG's office by 30 September.

**TECHNICIANS**

If a Technician loses military membership, they will be terminated from the Technician program, but is not considered a

separation for cause. There are some exceptions and waivers available for competent individuals who need to be retained

in order to qualify for technician retirement. _See_ ANGI 36-2002 for additional detail.

**PRACTICAL TIPS**

Commanders should meet with their MPF Chiefs to ensure that as members of the unit approach 20 years of service,

they review their status to maximize their input for favorable consideration for retention by the Board.

Commanders properly view this program as one of quality force management. However, the pitfall to avoid is a claim of

discrimination or unfairness by the disgruntled member whom you are not recommending for retention. With members

against whom you have taken adverse action - up to now, not enough to administratively discharge or courts-martial

them - be sure to consult with your Staff Judge Advocate and MPF Chief BEFORE you submit the recommendations of

these members to the Board. Document the record to be presented to the Board so that whatever recommendation you

make is justified.

_**KWIK-NOTE: Selective retention can be a valuable tool for Commanders to maintain a quality force within their units.**_

**RELATED TOPICS:**

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**SECTION**

Judicial Review of Military Administrative Actions

18-5

Quality Force Management Actions

24-12

Selective Enforcement

24-14

Officer Evaluation System

1-23

_**Air National Guard Commander's Legal Deskbook**_

93

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-37 Transfer to the Individual Ready Reserve (IRR)**_

_**Page 1**_

**Transfer to the Individual Ready Reserve (IRR)**

**Updated by Major Jeffrey Knickerbocker, November 2008**

**AUTHORITY:** AFI 36-3209, _Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members_ (14 Apr 05); AFI 36-2115, _Assignments Within the Reserve Components_ (8 Apr 05); ANGI 36-2101, _Assignments Within the Air National_ _Guard_ (11 Jun 04).

**OVERVIEW**

Commanders may transfer members of the unit to the Individual Ready Reserve for a number of reasons. This transfer to

ARPC-IRR retains the member in the Reserve of the Air Force and allows the State HQ to cut orders discharging the

member from the National Guard of the State.

A commander should review the current policy requirements when any of the following events take place:

1. Unsatisfactory participation by a member when the member has an unsatisfied Military Service Obligation (MSO);

2. Unreasonable commute when a change in the member's residency places that member beyond a reasonable commut-

ing distance; or

3. Unreasonable commute when the unit changes location and the member's residence is beyond a reasonable commut-

ing distance.

Whether or the member has an unsatisfied MSO is important. If a member has an unsatisfied MSO, that member may

not be separated from the Reserve of the Air Force based on unsatisfactory participation alone. If the member's MSO has

been completed, then the member may be discharged from both the National Guard of the State and as a Reserve of the

Air Force. Similarly, depending on the event outlined above, the member may be entitled to an "Honorable" discharge.

**TRANSFER TO IRR FOR UNSATISFACTORY PARTICIPATION**

Personnel with an unsatisfied MSO or periods remaining to serve on current enlistment contracts may be discharged

from the National Guard of the State, but will not be discharged as a Reserve of the Air Force as unsatisfactory partici-

pants solely by reason of their having accrued excessive absences from scheduled training duty.

Unsatisfactory participants with MSOs, including Palace Chase personnel, must be transferred to the Air Reserve Person-

nel Center (ARPC) to complete their statutory military service obligation.

Any individual who has nine or more unexcused absences from scheduled training periods in a 12-month period is identi-

fied as an unsatisfactory participant. For example, a weekend UTA constitutes four separate training periods, and by the

time a member has been absent without excuse from the first month's four training periods to the third monthly UTA

weekend in a 12-month period, there will be nine unexcused absences. To qualify for transfer to ARPC, such members

must be notified in writing after each unexcused absence, and should be demoted by nonjudicial punishment action or

administratively, as appropriate, to the grade of at least E-2, and preferably E-1. After the ninth unexcused absence, unit

commanders may request approval of the member's transfer to ARPC by submitting the required documents to their

State HQ.

If State HQ approves the transfer to ARPC, State HQ will then cut orders discharging the member concerned from the

ANG of the State and reassigning the MSO member to ARPC-IRR (Individual Ready Reserve). Non-MSOs will be dis-

charged from the ANG of the State and as a Reserve of the Air Force, except Palace Chase personnel who may also be re-

turned to Active Duty or transferred to the IRR. DoD policy is that individuals who are transferred to ARPC and have a

_**Air National Guard Commander's Legal Deskbook**_

94

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-37 Transfer to the Individual Ready Reserve (IRR)**_

_**Page 2**_

characterization of service of other than honorable because of their unsatisfactory participation, shall be discharged by

ARPC at the end of their statutory military service obligation, or period of enlistment, or service agreement, whichever is

later with such characterization unless they obtain a waiver from NGB to upgrade their characterization of service.

**TRANSFER TO IRR BECAUSE OF MEMBER OR UNIT RELOCATION**

**Member Relocation (MSOs)**

MSO members of the ANG who change their residence may be transferred to the IRR if they reside beyond a reasonable

commuting distance from a unit of their component. Their assignment to the IRR will continue until they are able to

transfer to a paid drill position of another Reserve component or complete their statutory military service obligation. Un-

less other circumstances dictate, the characterization of service should be Honorable.

If MSO members change their residences within a reasonable commuting distance from a unit of their component and

fail to report to such unit within 90 days of the relocation (assuming the member's ETS date will not come up during

this 90-day period), they may be identified as unsatisfactory participants because of the requisite number of unexcused

absences, and they may be transferred to the IRR. The characterization of service usually will be Honorable.

**Contractual Obligors (Non-MSOs)**

Non-MSO members who move so that they are beyond a reasonable commuting distance from a unit of their component

will be transferred to non-member, non-participating status (NNPS) upon request at the end of their enlistment, and will

be discharged (usually Honorable), unless they have transferred to a paid drill position in another Reserve component

before their enlistment expires.

Non-MSO members who move so that they are within a reasonable commuting distance of a unit of their component

and fail to join such unit within 90 days of their relocation (assuming the ETS date will not run), may be identified as

unsatisfactory participants because of the requisite number of unexcused absences and will be discharged. The characteri-

zation of service usually will be Honorable.

**Unit Relocation Within Reasonable Commuting Distance**

If the unit moves so the member remains within a reasonable commuting distance, the member's required participation

continues.

**Unit Relocation Beyond Reasonable Commuting Distance**

**MSOs**

If the unit moves so that the member is beyond a reasonable commuting distance, the member may be discharged from

the ANG of the State and transferred to ARPC-ORS (Obligated Reserve Section) where, at the end of the MSO, the mem-

ber will be honorably discharged.

**Non-MSOs**

If the unit moves so that the member is beyond a reasonable commuting distance, the member may resign from the ANG

of the State and be transferred to the USAFR for the remainder of the term of the enlistment, and from which the mem-

ber will be honorably discharged.

_**KWIK-NOTE: This area of personnel administration is subject to frequent policy changes from the NGB, and the latest NGB**_

_**communications should be consulted when a problem arises.**_

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-37 Transfer to the Individual Ready Reserve (IRR)**_

_**Page 3**_

**RELATED TOPICS:**

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**SECTION**

Absent Military Members

1-2

Administrative Demotion of Airmen

24-2

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Conditional Release

1-8

Nonjudicial Punishment

24-11

Palace Chase

1-26

Quality Force Management Actions

24-12

Unsatisfactory Participation

1-40

_**Air National Guard Commander's Legal Deskbook**_

96

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-38 Unions – Military**_

_**Page 1**_

**Unions - Military**

**Updated by Lt Col Christine Lennard, December 2015**

**AUTHORITY** : 10 U.S.C. 976; DODI 1354.01, _DoD Policy on Organizations that Seek to Represent or Organize Members of the_ _Armed Forces in Negotiation or Collective Bargaining;_ AFI 51-906, _Representational and Organizational Activities of Air Force Personnel_ (25 Sep 2014).

**INTRODUCTION** : The new AFI extends applicability to Reserves and ANG (any T32 status), changes required report-

ing method on prohibited activities, and requires installation commanders to report solicitations made through the U.S.

mail.

**GENERAL CONCEPT**

The traditional union functions of collective or concerted actions are incompatible with military order and chain of com-

mand. Permitting unionization of the Air Force would undermine the role, authority, and position of the commander and

impair control over personnel. The loss of control over an organization would threaten the security of the United States,

consequently, military labor organizations are not permitted.

**MILITARY LABOR ORGANIZATION**

A military labor organization is an organization that engages in or attempts to engage in:

1. Negotiation or collective bargaining;

2. Representing members in connection with any grievance or complaint arising out of the terms or conditions of mili-

tary service;

3. Striking, picketing, marching, or demonstrating to induce any civilian employee or AF member to: recognize the or-

ganization as a representative of civilian or AF members, negotiate or bargain for the members, or make a change to the

terms or conditions of military service for AF members.

Such organizations present a clear danger to discipline, loyalty, and obedience to lawful orders of command and this inter-

ference is not permitted. Attachment 3 to AFI 51-906 provides guidelines for assessing organizations and/or activities

and individual conduct.

**PROHIBITED ACTIVITIES** (Pursuant to 10 U.S.C. 976)

1. Generally – Military members and civilian employees will not attempt to engage in or solicit the commission of any act

prohibited by this instruction, to include enrolling or attempting to enroll another in any prohibited organization.

2. Negotiation or Collective Bargaining - Engaging in negotiation or collective bargaining (see paragraph 2.3.3 regarding

Military Technicians) is prohibited.

3. Strikes and other concerted activities - Organizing, attempting to organize, or participating in a strike or other con-

certed activity is prohibited. (This doesn't prohibit mere attendance at speeches hosted by traditional veterans' organiza-

tions.)

4. Improper use of a military installation - Using any military installation for a military labor organization purpose (e.g.

meet, march, picket, distribute leaflets) is prohibited.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-38 Unions – Military**_

_**Page 2**_

**REPERCUSSIONS**

Violators may be prosecuted and are subject to fines ($25,000 individual/$250,000 organization) and/or imprisonment

(up to 5 years) under Title 18. Military members may be charged with failure to follow an order or regulation under Art

92 of UCMJ and various state military code provisions.

**PERMISSIBLE ACTIVITIES**

1. Civilian employees may join or be a member of any organization that engages in representational activities with re-

spect to terms or conditions of civilian employment, provided no other restrictions apply.

2. Military members may:

a. Present complaints or grievances over terms or conditions of military service through established military channels; b.

Petition or communicate with any Member of Congress;

c. Seek or receive counseling or information from any source;

d. Be represented by military counsel in any military judicial or administrative proceeding;

f. Belong to lawful organizations other than military labor organizations; and

g. Take such other actions as are authorized by applicable law or regulation.

**INSTALLATION COMMANDERS**

Paragraph 4.5 contains guidance on enforcing the prohibitions, assessing organizations (see also Attachment 3), publiciz-

ing information on prohibited organizations, and reporting requirements (see also Attachment 2). Table 1 contains situa-

tional guidance for commanders for dealing with prohibited activities.

_**KWIK-NOTE: Be aware that prohibited representational and organizational activities extend to Title 32 ANG members, as**_

_**well as civilians.**_

**RELATED TOPICS:**

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**SECTION**

Labor Relations

5-5

AGR Program

11-4

_**Air National Guard Commander's Legal Deskbook**_

98

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-39 USAF Instructions, ANG Supplements and Unit Instructions**_

_**Page 1**_

**USAF Instructions, ANG Supplements and Unit Instructions**

**Updated by Major Jeffrey Knickerbocker, November 2008**

**AUTHORITY:** AFI 33-360, _Publications and Forms Management_ (18 May 06)

## INTRODUCTION

AFI 33-360 generally describes the applicability and provides for the issuance of publications throughout the Air Force.

Paragraph 3.9.1 of that AFI sets out the rules for applicability of Air Force publications to the ANG. The general rules

are:

1. Departmental publications (AFPDs and AFIs) apply to the Air National Guard only when coordinated with the appro-

priate ANG office. The ANG, not the OPR, determines whether a particular instruction applies to the ANG, and will pro-

vide the OPR with applicability or exception statement for inclusion in the "purpose" paragraph of the publication.

2. AFPDs and AFIs are not listed in the ANGIND 2; those which are not applicable, or are applicable only upon mobiliza-

tion, are indicated by a "@" or "#" notation in the AFIND 2. If there is no marking in the AFIND 2, the publication is

applicable, in its entirety and with no exception, to the ANG.

3. MAJCOM publications apply only if specifically stated to be applicable in the purpose paragraph. Applicable MAJCOM

publications are listed in the ANGIND 2. Only those MAJCOM publications listed in the ANGIND2 by series and date

are applicable to the ANG.

**ANG SUPPLEMENTS AND UNIT PUBLICATIONS**

The Director, ANG, is authorized to publish supplements to both departmental and MAJCOM publications. ANG units

have limited authority to issue policy directives, and are authorized to publish instructions to implement USAF,

MAJCOM and ANG policy directives.

**VIOLATIONS**

Article 92(1), UCMJ, and similar state code provisions, make it a crime to violate a lawful general regulation ( _i.e.,_ "instruction"). All formal, published regulations are deemed to be "general regulations" for this purpose. However, the Man-

ual for Courts-Martial, 1984, limits the criminal applicability of a regulation as follows: "Regulations which only supply

general guidelines or advice for conducting military functions may not be enforceable under Article 92 (1)."

Thus, not all general regulations are necessarily punitive in nature, and violating a general regulation that is not punitive in nature is not punishable under Article 92, UCMJ or a state military code equivalent. Therefore, if the goal in issuing a

regulation is to make its violations punishable by court-martial, then it should be clearly stated in the text of the regulation that it "is a punitive regulation, punishable under Article 92 (1), UCMJ, (or state Code reference)," or words of simi-

lar import. Where appropriate, only important portions of the regulation should be designated as punitive, by reference

to specific paragraphs in the regulation. In other words, all or part of a general regulation may be made punitive.

**DRAFT CAREFULLY**

A government agency will always be held responsible for obeying its own regulations. Ambiguities in a regulation will

almost always be construed in a third party hearing against the party that authored the regulation. Consequently,

serious thought and consideration should be given to whether to issue a regulation or supplement, and what to put in it.

_**Air National Guard Commander's Legal Deskbook**_

99

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-39 USAF Instructions, ANG Supplements and Unit Instructions**_

_**Page 2**_

_**KWIK-NOTE: Every unit publication should be reviewed by a Judge Advocate for legal sufficiency and form before it is is-**_

_**sued. It may be wise to ask your Judge Advocate to work with the OPR in the drafting stage.**_

**RELATED TOPICS:**

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**SECTION**

Sources of Commander's Authority

2-7

Judicial Review of Military Administrative Actions

18-5

_**Air National Guard Commander's Legal Deskbook**_

100

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-40 Unsatisfactory Participation**_

_**Page 1**_

**Unsatisfactory Participation**

**Updated by Major Jeffrey Knickerbocker, November 2008**

**AUTHORITY:** AFI 36-3209, _Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members_ (14 Apr 05); ANGI 36-2503, _Administrative Demotion of Airmen_ (1 Mar 04).

**WHAT IS "UNSATISFACTORY PARTICIPATION?"**

AFI 36-3209, paragraph 3.13.2, defines "Unsatisfactory Participation as a member who has missed nine or more Unit

Training Assemblies (UTAs) within a 12-month period or who fails to report to the ANG unit of assignment within 90

days after the date of release from active federal service. Members may be separated or discharged when it is determined,

that they are unqualified for further military service by reason of Unsatisfactory Participation. This reason shall NOT be

used if the member is in Entry Level Status. For demotion purposes, "unsatisfactory participation" is defined as six or

more unexcused absences from scheduled UTA periods in any continuous 12-month period.

**COMMANDER'S DUTIES**

1. Send a written notice to the member after each scheduled UTA missed. As a practical matter, send one letter at the

end of the monthly drill weekend citing the UTAs missed. One four-hour UTA counts as one absence. Attachment 1 to

this topic is a sample form letter for this notice. Up to the sixth unexcused absence, the letter need only be sent by regu-

lar mail.

2. Many commanders use demotion action as a rehabilitative tool before initiating discharge proceedings. You may initi-

ate demotion action after the sixth unexcused absence. Use the inserted paragraph 4 in Attachment 1 (notification of ab-

sence letter), if demotion action is being initiated. After the sixth but before the ninth unexcused absence, send Attach-

ment 1 by certified mail, return receipt requested. Also, use the inserted paragraph 4 in Attachment 2 to this topic, if af-

ter the ninth unexcused absence, you choose to proceed with further demotion action.

3. After the ninth unexcused absence, use Attachment 2 as the notice to be sent to the member. The unit Ccmmander

may initiate separation action recommending that the member be separated from both the ANG of the state and as a Re-

serve of the Air Force, or that the member be separated from the ANG of the state and transferred to the Individual

Ready Reserve (IRR), depending upon whether or not the member has an existing service obligation. _See also_ the topic in this Deskbook entitled _"TRANSFER TO THE INDIVIDUAL READY RESERVE (IRR)."_

**WHAT HAPPENS TO INDIVIDUALS TRANSFERRED TO THE IRR?**

Individuals who are transferred to the IRR because of unsatisfactory participation, and have a tentative characterization

of service of other than honorable, will be discharged by ARPC at the end of their statutory military service obligation or

period of enlistment or service agreement, whichever is later, with such characterization of service unless the individual

has taken affirmative actions to qualify for a higher characterization of service. Such actions may include, but are not limited to, rejoining a unit of the Air National Guard, or other selected Reserve, and satisfactorily participating for a period of not less than 12 months, or volunteering for and completing a tour of active duty for training of not less than 45 days.

When necessary, the individual's term of enlistment or service agreement may be extended to complete the affirmative

action described above to qualify for a more favorable characterization of service.

**FORMS**

Many units, through their MPF and Judge Advocates, have developed form letters and procedures to expeditiously proc-

ess unsatisfactory participants. Remember, this area requires close coordination among unit commanders, their first ser-

geants, MPF and the Staff Judge Advocate to ensure timely communication of unexcused absences from the unit to the

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-40 Unsatisfactory Participation**_

_**Page 2**_

MPF, and timely sending of the required correspondence to the member. It is easy to push this aside with all the other

training requirements you face. If you establish these procedures as just another one of your duties, you will find that the process works smoothly. SJAs should review all adverse actions based upon unsatisfactory participation.

**KWIK-NOTE: Timely processing of unsatisfactory participants is a high profile item for inspection teams.**

**RELATED TOPICS:**

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**SECTION**

Absent Military Members

1-2

Administrative Demotion of Airmen

24-2

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Admonitions and Reprimands - Administrative

24-5

Barring Reenlistment

24-6

Judicial Review of Military Administrative Actions

18-5

Legal Reviews

17-11

Mailing or Delivery - Affidavits and Certificates of Service

24-10

Palace Chase

1-26

Quality Force Management Actions

24-12

Selective Retention in the Air National Guard

1-36

Weight and Body Fat Management Program

24-15

Dropping ANG Officer from the Rolls Instead of Administrative Discharge

24-8

Nonjudicial Punishment Transfer to the Individual Ready Reserve (IRR)

24-11

_**Air National Guard Commander's Legal Deskbook**_

102

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-40 Unsatisfactory Participation**_

_**Page 3**_

_Attachment 1_

(Unit Letterhead)

MEMORANDUM FOR (Name and Address of unit member)

Date

FROM: Unit Commander

Subject: Notification of Unexcused Absence from Scheduled Training Duty

1. You are advised that your unexcused absence(s) from the scheduled training period(s) of ______________________

(has) (have) been recorded.

2. You are aware from previous briefings and/or counseling of your requirement to attend all scheduled inactive duty and

other required training periods.

3. PALACE CHASE ONLY: As a Palace Chase member your failure to satisfactorily participate in unit training assemblies

(UTAs) and your other unit training requirements is a violation of your Palace Chase contract and may result in recom-

mending your involuntary recall to Extended Active Duty under AFI 36-3205 for the period of time remaining on your

Active Duty Service Commitment (Officers) or Term of Enlistment (Airmen) at the time of your release from active duty,

or for 12 months, whichever is longer.

[If demotion action is being initiated, use: "4. You are advised that an action which could result in your demotion in

grade is being initiated at this time, and of which you will receive separate notice." If this paragraph is used, renumber the remaining paragraphs].

4. These unexcused absences from scheduled training also subject you to nonjudicial punishment action, administrative

demotion action, and other adverse administrative actions, including initiation of separation and discharge action from

the Air National Guard under other than honorable conditions.

5. You may have a valid excuse for one or more of these unexcused absences because of illness, injury, emergency or

other circumstances beyond your control. If such is the case, you must furnish this office not later than 15 days from the

date of this letter, appropriate documentation, such as a doctor's certificate, affidavit, etc. supporting your written request to be excused. If documentation is not readily obtainable, indicate in your request the date it will be furnished. All requests for unexcused absences are subject to approval. The denial of the request to be excused or failure to submit a writ-

ten request within the time limits, may result in initiation of a separation action with a recommendation for you to re-

ceive a discharge under other than honorable conditions, nonjudicial punishment, administrative demotion, or other ad-

verse administrative action.

6. If I accept your explanation and consider your unexcused absence(s) as excused, you may be required to make up the

training. If the make-up training is not performed, as ordered, it will be recorded and counted as an unexcused absence.

7. You are ordered to report for duty at the next scheduled Unit Training Assembly on _______________________, begin-

ning at _____________ hours, place of duty: ___________________________________________.

8. If you have any questions, you are to contact ____________________________ at ________________________.

_______________________

Commander Signature Block

_**Air National Guard Commander's Legal Deskbook**_

103

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-40 Unsatisfactory Participation**_

_**Page 4**_

_Attachment 2_

(Unit Letterhead)

MEMORANDUM FOR (Name and address of unit member)

Date

FROM: Unit Commander

Subject: Unsatisfactory Participation

1. You are advised that your unexcused absence(s) from the scheduled training period(s) of _____________________

(has) (have) been recorded.

2. You are aware from previous counseling and/or correspondence of the serious nature of your absence.

3. PALACE CHASE ONLY: As a Palace Chase member your continued failure to satisfactorily participate in unit training

assemblies (UTAs) and your other unit training requirements is a violation of your Palace Chase contract and will result

in recommending your involuntary recall to Extended Active Duty under AFI 36-3205 for the period of time remaining

on your Active Duty Service Commitment (Officers) or Term of Enlistment (Airmen) at the time of your release from ac-

tive duty, or for 12 months, whichever is longer.

[If demotion action is being initiated, use: "4. You are advised that an action which could result in your demotion in

grade is being initiated at this time, and of which you will receive separate notice." If this paragraph is used, renumber the remaining paragraphs].

4. Based upon the number of your unexcused absences, I have the authority to recommend your separation from the Air

National Guard. Such discharge may be under other than honorable conditions. This does not apply to PALACE CHASE

members who are approved for recall to extended Active Duty.

5. You may have a valid excuse for one or more of these unexcused absences because of illness, injury, emergency or

other circumstances beyond your control. If such is the case, you must furnish this office not later than 15 days from the

date of this letter, appropriate documentation, such as a doctor's certificate, affidavit, etc. supporting your written request to be excused. If documentation is not readily obtainable, indicate in your request the date it will be furnished. All requests for unexcused absences are subject to approval. The denial of the request to be excused or failure to submit a writ-

ten request within the time limits, may result in initiation of a separation action with a recommendation for you to re-

ceive a discharge under other than honorable conditions, nonjudicial punishment, administrative demotion, or other ad-

verse administrative action.

6. If I accept your explanation and consider your unexcused absence(s) as excused you may be required to make up the

training. If the make-up training is not performed, as ordered, it will be recorded and counted as an unexcused absence.

7. You are ordered to report for duty at the next scheduled Unit Training Assembly on________________________, begin-

ning at _____________ hours, place of duty: ____________________________________________________.

8. If you have any questions, you are to contact _______________________________ at _____________________.

_________________________

Commander Signature Block

_**Air National Guard Commander's Legal Deskbook**_

104

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-41 Withdrawal of Authority to Bear Firearms**_

_**Page 1**_

**Withdrawal of Authority to Bear Firearms**

**Updated by Major Jeffrey Knickerbocker, November 2008**

**AUTHORITY:** AFI 31-207, _Arming and Use of Force by Air Force Personnel_ (1 Sep 1999); DODI 6400.06, _Domestic Abuse Involving DoD Military and Certain Affiliated Personnel_ (21 Aug 2007)

**WITHDRAWAL OF AUTHORITY TO BEAR FIREARMS**

A commander has the ability, under certain circumstances, to administratively withdraw a member's authority to bear a

firearm. Typically, this issue will arise in the context of a security police squadron or flight. This action is appropriate when a member's behavior demonstrates that possession of a firearm would be a threat to safety, security or performance of the ANG mission for which the firearm was possessed. The goal of this action is to protect not only the member,

but other personnel at or near the installation. Additionally, as is more fully discussed in the following chapter, certain

convictions preclude the military from authorizing someone to bear a firearm. In those cases, the law imposes criminal

liability not only on the member who bears the firearm, but also on personnel who issued the firearm to the member.

**DETERMINE RELIABILITY AND DOCUMENT YOUR DECISION**

AFI 31-207, paragraph 2.6, requires that the member in question be evaluated to determine whether or not the member

is reliable; that is to say, is the members' personality such that the member can be trusted with possession of a firearm.

A member's individual reliability can be called into question for a variety of reasons, including identified substance

abuse, emotional or behavioral instability, using prescription medication that would impair their ability to use a firearm

safely, or disciplinary problems. **If you know or have reasonable cause to believe that a person under your com-**

**mand has a misdemeanor conviction for a crime of domestic violence, you must take affirmative action to with-**

**draw and prevent the individual's access to firearms.** ( _See_ Deskbook Topic entitled " _Lautenberg Amendment."_ ) Commanders deciding to withdraw a person's authorization to bear arms for more than 72 hours must notify the individual in writing of the withdrawal action and the reasons for such action pursuant to AFI 31-207, para. 2.6.6.

On the issue of reliability, it is important to thoroughly document the pertinent duty history of the member as to both

the current assignment and past assignments. This information will assist a commander in the initial decision regarding

the withdrawal of authority to bear firearms, as well as any subsequent decision in the matter. A member may question a

commander's decision to take such an action, or, at a later date, the member may apply for a reinstatement of the author-

ity to bear firearms. Thus, it is essential to properly document the basis for this type of action. A commander should

check with the Staff Judge Advocate before instituting this action. The SJA will assist a commander in reviewing the legal-

ity of the proposed action and in supplying the necessary documentation of the action.

_**KWIK-NOTE: Act promptly to withdraw a member's authority to bear firearms if the member's behavior demonstrates that**_

_**possession of a firearm would be a threat to safety, security, or the performance of the ANG mission.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Air Base Security Guards

3-3

Drug Abuse

10-4

Judicial Review of Military Administrative Actions

18-5

Personnel Security Access Program

1-28

Possession of Privately Owned Firearms on Base

3-15

Quality Force Management Actions

24-12

Lautenberg Amendment

1-42

_**Air National Guard Commander's Legal Deskbook**_

105

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-42 Lautenberg Amendment**_

_**Page 1**_

**Lautenberg Amendment**

**Updated by Major Jeffrey Knickerbocker, November 2008**

**AUTHORITY:** 18 U.S.C. §§921 and 922; Memorandum, Under Secretary of Defense for Personnel and Readiness, _Depart-_

_ment of Defense (DOD) Policy for Implementation of Domestic Violence Misdemeanor Amendment to the Gun Control Act for DOD Military Personnel_ (27 Nov 02); Memorandum, HQ USAF/DPP, _Air Force Policy for Implementation of Domestic Violence Misdemeanor_ _Amendment to the Gun Control Act (Lautenberg Amendment) for Military and Civilian Personnel_ (20 Feb 04); DODI 6400.06, _Domestic Abuse Involving DoD Military and Certain Affiliated Personnel_ (21 Aug 2007).

**BACKGROUND**

The Gun Control Act of 1968 ("GCA") established a comprehensive scheme to regulate the manufacture, sale, transfer

and possession of firearms and ammunition. Section 922(g) delineated certain classes of individuals prohibited from ship-

ping, transporting, possession, or receiving firearms or ammunition in interstate commerce. Some examples of individu-

als targeted by this provision include persons convicted of a crime punishable by a term of imprisonment exceeding one

year; fugitives from justice; unlawful users of controlled substances; persons committed to a mental institution, illegal

aliens, and persons dishonorably discharged from the Armed Forces. The GCA contained a public interest exception and

allowed the possession of firearms in an official capacity ( _e.g._ by law enforcement officials and military members).

As part of the Omnibus Consolidated Appropriations Act of 1997, Congress amended the GCA and added an additional

disqualification category. Commonly referred to as the Lautenberg Amendment (after its sponsor Senator Frank Lauten-

berg of New Jersey), this provision makes it unlawful for "any person...who has been convicted of a misdemeanor crime

of domestic violence" to ship, transport, possess, or receive firearms or ammunition in or affecting commerce. It also pro-

hibits the knowing sale or other disposition of any firearm or ammunition to an individual convicted of a domestic vio-

lence misdemeanor. Further, the amendment alters the traditional public interest exception to the firearms disqualifica-

tion provisions, since it did not include a public interest exception. A violation is punishable by imprisonment for up to

10 years and a maximum fine of $250,000. Military departments (including security forces personnel) are not exempt

from this law.

**DOD GUIDANCE**

DoDI 6400.06 expanded, as a matter of policy, the prohibition and included those individuals previously exempted under

the public interest exception. Because the policy could not be applied retroactively it is still possible for someone with a felony conviction prior to the 2002 policy implementation date to serve in the military and carry a weapon.

**AIR FORCE AND AIR NATIONAL GUARD GUIDANCE**

In March 1998, the Air Force issued a message providing that individuals convicted of domestic violence may not be ad-

ministratively discharged solely for the conviction, but may be administratively discharged if there is a legal basis on

other grounds. All individuals with qualifying convictions who are retained must be reassigned to duties which do not

include access to firearms or ammunition and may not deploy to areas for which small arms training is required. If the

individual's AFSC requires that the individual be qualified to bear a firearm, the AFSC must be withdrawn.

ANGRC guidance reiterates AF guidance and states that individuals with qualifying convictions may not be enlisted in

the Guard and that such convictions are not subject to waiver. Members already in the Guard with qualifying convictions

are ineligible for direct commission or entry into a program leading to commission.

As the DoD has recently issued an instruction, you should look for an Air Force implementing instruction soon.

_**Air National Guard Commander's Legal Deskbook**_

106

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-42 Lautenberg Amendment**_

_**Page 2**_

**THE LAUTENBERG AMENDMENT: ELEMENTS OF AN OFFENSE:**

**Misdemeanor** : A non-felony offense under federal or state law, punishable by a fine and/or up to one year in jail.

**Conviction** : A final judgment on a verdict or finding of guilty, a plea of guilty, or a plea of _nolo contendere_. It does not include an arrest, or a final judgment which has been expunged, pardoned, reversed, set aside, or otherwise rendered null.

Moreover, it does not include the situation where an individual has had his/her civil rights restored, unless the terms of

any such action expressly prohibit the individual from possessing firearms or ammunition. Additionally, the underlying

misdemeanor conviction may not be used as a predicate to a violation unless: 1) the individual in question was repre-

sented by counsel in the case, or knowingly and intelligently waived the right to counsel and 2) in the instance that the

individual was entitled to a trial by jury, the case was indeed tried by jury, or the individual in question made a knowing

and intelligent waiver of the right. The statute applies to anyone who has ever been convicted of such an offense, even if

the conviction occurred before the effective date of the Lautenberg Amendment (30 Sep 96).

**Domestic Violence** : A misdemeanor conviction triggers the firearm possession prohibition only if the offense has as its elements the use or attempted use of physical force or the threatened use of a deadly weapon; committed by a current or

former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a per-

son who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person "similarly

situated" to a spouse, parent or guardian of the victim. This provision appears to cover an exhaustive range of domestic

relationships, except that the text prevents children from being classified as offenders if they commit a misdemeanor of-

fense against a parent or guardian. The Bureau of Alcohol, Tobacco and Firearms (BATF) has helped to further clarify the

statute, stating that the "similarly situated" language does not require the establishment of a common law marriage;

rather the individuals must simply be involved in more than a "dating" relationship. 27. C.F.R. § 178.11; _See also_ Bureau of Alcohol, Tobacco and Firearms, " _Federal Firearms Regulations Reference Guide_ ," AFF P 5300.4, p. 152 (2000).

**27 NOV 2002 DOD POLICY: ELEMENTS OF AN OFFENSE**

In essence, DOD Policy incorporates all of the aforementioned definitions, yet clarifies the law's applicability to the military and broadens its reach.

" **Qualifying conviction** :" a state or federal conviction for a misdemeanor crime of domestic violence; a state or federal conviction for a felony crime of domestic violence adjudged on or after the date of the memorandum (27 Nov 02), and

any general or special court-martial conviction for a UCMJ offense which otherwise meets the elements of a "crime of

domestic violence," even though not classified as a misdemeanor or felony. In effect, DOD policy expanded Lautenberg's

application to the military. Under this scenario, it is entirely possible to comply with the statutory requirements of Lau-

tenberg ( _i.e.,_ identification of misdemeanants) and not be subject to a fine or imprisonment; yet, still violate DOD policy ( _i.e.,_ failure to identify felons). Obviously, military members must be cognizant of both. Further, the application of Lautenberg to special and general court-martials indicate the broadened application of federal law to crimes committed out-

side of the United States.

The term "qualifying conviction" does not include summary court-martial convictions, impositions of non-judicial pun-

ishment, or deferred prosecutions (or similar alternative dispositions) in civilian courts.

**Domestic Violence** : DOD policy uses the same definition as the Lautenberg Amendment, however it precedes the spe-

cific description with the following: "a crime of domestic violence means an offense that has as its factual basis..." Thus,

the formal name of the offense of conviction is not governing—one must look further to the factual basis for the convic-

tion. For example, if an individual pleads guilty to "disorderly conduct," yet the factual basis is that he assaulted his wife and thus, caused a disturbance, this is a crime of domestic violence. The fact that the offense says, "disorderly conduct"

and has no domestic violence reference in its title does not matter. The underlying facts of the offense are what count.

However, consider the situation where an individual is charged with two offenses: DV assault (for hitting his wife) and

disorderly conduct (for yelling at, and threatening the intervening neighbors). The individual pleads guilty to the

_**Air National Guard Commander's Legal Deskbook**_

107

_**Chapter 1, Administrative and Personnel Matters**_

_**Section 1-42 Lautenberg Amendment**_

_**Page 3**_

disorderly conduct offense and the DV assault is dismissed. Although the police report may indicate a DV assault, the

factual basis for the disorderly conduct was the actions toward the neighbors. In this instance, there is no factual basis of domestic violence for the offense of conviction. There is just other evidence of domestic violence.

**CIVILIAN PERSONNEL**

DOD policy applies to all DOD appropriated and non-appropriated fund civilian employees, including those who work

outside United States' territory. It does not apply to foreign nationals employed by DOD. Each DOD component must

identify their "covered positions" (those whose responsibilities include selling, disposing, receiving, possessing, ship-

ping, or transporting any firearm or ammunition), and ensure that no civilian is employed or retained in such a position

if they have a qualifying conviction.

**NOTIFICATION PROGRAM**

Each DOD component shall implement a program to inform personnel (military and civilian) in covered positions about

the scope and consequences of the Lautenberg Amendment. Personnel should be informed of their obligation to report a

qualifying conviction, and DD Form 2760 shall be used to report such convictions. Notices must be posted in all facilities

where firearms or ammunition are stored, issued, disposed of, and transported. DOD components may now choose to

require all or some of its covered personnel to certify that they do or do not have a qualifying conviction (use DD Form

2760). This option to canvass/survey members rests within the discretion of each component.

**JUDICIAL REVIEW**

The Lautenberg Amendment has been attacked as violating several different constitutional provisions: the second amend-

ment, the tenth amendment, the prohibition against bills of attainder, the commerce clause, the equal protection clause,

and the ex post facto clause. Although the last three have received more measured consideration, none of the challenges

have succeeded. In fact, several federal Courts of Appeals have upheld the constitutionality of the Lautenberg Amend-

ment. _See United States v. Meade_ , 175 F.3d 215 (1st Cir. 1999); _United States v. Napier_ , 233 F.3d 394 (6th Cir. 2000); _Gillespie v. City of Indianapolis_ , 185 F.3d 694 (7th Cir. 1999); _United States v. Lewis,_ 236 F.3d 948 (8th Cir. 2001); _United_ _States v. Hancock_ , 231 F.3d 557 (9th Cir. 2000); _Fraternal Order of Police v. United States_ , 173 F.3d 898 (D.C. Cir. 1999).

_**KWIK-NOTE: If you know or have reasonable cause to believe that a person under your command has a misdemeanor or fel-**_

_**ony conviction for a crime whose underlying factual basis is one of domestic violence, you must take affirmative action to**_

_**withdraw and prevent the individual's access to firearms. Notification programs will assist in the identification of persons**_

_**with qualifying convictions.**_

**RELATED TOPICS:**

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****

**SECTION**

Withdrawal of Authority to Bear Firearms

1-41

_**Air National Guard Commander's Legal Deskbook**_

108

**Chapter 2, Authority of Commander**

**Table of Contents**

**Section**

2 - 1 Table of Contents

2 - 2 Command Influence

2 - 3 Command Succession

2 - 4 Command by Non-rated Officer

2 - 5 Jurisdiction

2 - 6 Problem Solving - ANG and USAF Commanders Similar and Different Approaches

2 - 7 Sources of Commander's Authority

2 - 8 State ANG Headquarters

2 - 9 Role of the First Sergeant

2 - 10 Legislative Process

_**Air National Guard Commander's Legal Deskbook**_

109

_**Chapter 2, Authority of Commander**_

_**Section 2-2 Command Influence**_

_**Page 1**_

**Command Influence**

**Updated by Lieutenant Colonel Beverly G. Schneider, October 2013**

**AUTHORITY:** Article 37, Uniform Code of Military Justice, 10 U.S.C. 837; applicable state law and regulations.

**DEFINITION** \- Unlawful command influence exists when commanders impose their judgment as to the outcome or dis-

position of a case upon their subordinates who have the responsibility to exercise their own independent judgment in

the capacities in which they are involved.

**UNLAWFUL COMMAND INFLUENCE PROHIBITED IN MILITARY JUSTICE ACTIONS**

Unlawful command influence over military justice proceedings is prohibited by law. The exercise of unlawful command

influence will result in the reversal of a conviction or the overturning of a sentence. Such influence is itself a crime under the Uniform Code of Military Justice and many state codes of military justice.

**Specific Prohibitions**

The law contains four specific prohibitions against command influence in military justice actions:

1. Commanders and convening authorities may not censure, reprimand or admonish any member of a military court-

martial, military judge or military counsel regarding the findings or sentence rendered by courts-martial;

2. No member may attempt to coerce or influence the actions of any military court-martial convening, reviewing or ap-

proval authority regarding their judicial acts;

3. In preparing performance and efficiency reports, promotion recommendations and actions, and determining assign-

ments, commanders and supervisors are not allowed to consider or evaluate a member's performance as a member of a

courts-martial; and

4. In preparing performance and efficiency reports and promotion recommendations or actions, and determining assign-

ments, military raters may not give less favorable evaluations because of the zeal with which a lawyer represents an ac-

cused.

**Examples of Prohibited Acts of Command Influence**

These specific protections have been interpreted by the appeals courts over the years to prohibit a wide variety of com-

mand actions that might influence military courts-martial. Some examples of prohibited command actions include:

1. Briefing court members or prospective court members prior to a trial concerning the review of courts- martial and

proper disposition of persons convicted of crimes;

2. A statement to court members that charges are sent to trial only after extensive investigation and the existence of a

reasonable certainty that an accused had committed the crime;

3. Describing certain offenses to court members as reprehensible;

4. Reading a secretarial policy statement to court members on disposition of certain offenses;

_**Air National Guard Commander's Legal Deskbook**_

110

_**Chapter 2, Authority of Commander**_

_**Section 2-2 Command Influence**_

_**Page 2**_

5. Talking in a joking manner to court members over a drink at a bar and saying the commander did not care how long

the trial lasted as long as the accused was convicted;

6. Creating an appearance of command influence by command actions concerning outcomes of trials; and

7. Suggesting subordinate commanders and NCOs should not testify, or refusing to allow them to testify, in favor of

retaining someone convicted of an offense.

**Consequences of Unlawful Command Influence**

The consequences of unlawful command influence can be devastating. In 1982 and 1983, the commander and a brigade

command sergeant major in the 3rd Armored Division gave briefings and distributed letters on the subject of testimony

in favor of persons accused at courts-martial. It was stated in these letters it was inconsistent to recommend a person be

tried by a court authorized to impose a punitive discharge and then appear as a character witness and recommend reten-

tion. These command actions resulted in the review of hundreds of courts-martial cases and some reversals and overturn-

ing of sentences. Those involved in these cases and their staff judge advocates all suffered adverse career consequences.

Also, a commander may be personally liable for any adverse effects suffered by members who are victims of the com-

mander's unlawful command influence. There is no government representation or indemnification from money damages

for the commander in such cases.

**Delicate Balance**

There is a delicate balance in the military justice system. Commanders have a strong interest in seeing wrongdoers pun-

ished. They exercise a quasi-judicial rule that requires them to maintain neutrality. Command influence strikes at the

heart of the perception of fairness in the military justice system. Military judges and military counsel must be free to do

justice as the facts and the law require without fear of command reprisals. Witnesses must be free to testify on behalf of

accused members without fear of putting their military careers in jeopardy.

**ADVERSE ADMINISTRATIVE ACTIONS**

Although nearly all the precedents with regard to unlawful command influence are cases arising in court-martial situa-

tions, the same principles of fairness apply to administrative discharge board and demotion board situations. Command-

ers and convening authorities should take care not to discuss the particulars of pending cases with potential board mem-

bers. They should make sure that the military lawyers and witnesses who participate do so in an atmosphere which is

fair to the respondent.

Everyone would agree it would be improper for a commander to approach a board member in a case and tell the member

about the facts of the case or the commander's hopes that the respondent will be discharged or demoted, or that a recom-

mendation favorable to the respondent will ensue. The harder cases arise when commanders wish to make general policy

pronouncements about certain areas. For example, the National Guard Bureau has written several policy letters stating

that "drug abuse is incompatible with military service in the National Guard." Circulating this policy to subordinates outside the context of a particular board or pending case will probably create no legal problems. However, taking the same

action on the eve of, or at any time before, a pending contested board hearing (even as a "reminder" of existing policy) when board members and potential witnesses may be influenced by it, will probably cause legal problems.

**CONCLUSION**

Commanders must ensure fairness in all administrative and disciplinary proceedings. The key to avoiding unlawful com-

mand influence is to be sensitive to these issues and to regularly consult with your staff judge advocate before issuing

policy statements or taking other actions that might relate to pending or potential legal proceedings.

_**Air National Guard Commander's Legal Deskbook**_

111

_**Chapter 2, Authority of Commander**_

_**Section 2-2 Command Influence**_

_**Page 3**_

**RELATED TOPICS:**

****

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****

****

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****

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****

**SECTION**

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Aircraft and Missile Accident Investigations and Reports

16-3

Boards and Court-Martial – A View From the Inside

1-7

Boards – Investigative

16-4

Civilian Employee Discipline

5-2

Courts-Martial

8-15

Drug Abuse – Administrative Discharge Policy

10-6

Flying Evaluation Boards

13-6

Investigations and Inquiries

16-1

_**Air National Guard Commander's Legal Deskbook**_

112

_**Chapter 2, Authority of Commander**_

_**Section 2-3 Command Succession**_

_**Page 1**_

**Command Succession**

**Updated by Lieutenant Colonel Beverly G. Schneider, October 2013**

**AUTHORITY:** AFI 51-604, _Appointment to and Assumption of Command_ (4 April 2006); AFI 33-328, _Administrative Orders_ (16 January 2007); U _nited States v. Jette_ , 25 M.J. 16 (C.M.A. 1987). 

## INTRODUCTION

The subject of command succession usually arises in the context of the commander's function as the command authority

in the wing or group. During the temporary absence of the command authority, normally business continues as usual in

the commander's name. However, when the need for formal command authority action arises, apart from temporary ab-

sence, there must be a properly authorized commander to act as the command authority. There are two ways an officer

can succeed to command: ASSUMPTION and APPOINTMENT.

**ASSUMPTION OF COMMAND**

Assumption of command is a unilateral act by the senior eligible officer authorized to assume command in the event of a

prolonged absence of the commander. Absence or disability of the commander for short periods of time does not incapaci-

tate that commander from discharging functions of command and, except under unusual circumstances, does not war-

rant assumption of command by another officer.

The commander's designated representative continues to act for the commander in the commander's name as is rou-

tinely done when the commander is present, unless the duties to be performed are non-delegable. AFI 51-604 under-

scores that certain duties cannot be delegated. Duties that are not delegable are those duties specifically imposed on com-

manders by law, such as those in the UCMJ, in state Codes of Military Justice, appropriations acts and other statutory

provisions. Higher headquarters may also direct some duties which are non-delegable. In addition, some duties of evi-

dent importance or arising in specially existing local conditions may not be delegable.

Assumption, therefore, depends upon the decisions required to be made in the commander's absence. Day-to-day opera-

tion of the unit may continue without a formal transfer of command, especially where the commander can be contacted

and provide a timely response. Some matters can wait until the commander returns. The person assuming command

must always be the senior eligible officer assigned to the unit and present for duty. AFI 51-604 clarifies that an officer

may assume command only of an organization to which that officer is assigned by competent authority. Assignment to a

subordinate organization is an assignment to all superior organizations having the subordinate organization as a compo-

nent.

Officers must be eligible to assume command under AFI 51-604. For example, Chaplains cannot exercise command and

JAGs can generally do so only if authorized by TJAG.

Vice commanders and deputy commanders, when acting as such, are staff officers. The authority of staff officers is lim-

ited to assisting the commander through planning, investigating and recommending action. However, staff officers as-

signed to the organization are eligible to assume command. There is no title or position of "acting commander." The

term "acting commander" is not authorized.

AFI 33-328 defines how orders should be published. Appointment and assumption of command must be done through

G-series orders that follow the mandates of AFI 51-604.

Assumption of command can be temporary or permanent, but is normally temporary. It must be by published orders.

When the assumption is temporary, upon the return of the senior commander, that commander is re-vested with com-

mand authority and no new orders are necessary for that re-vesting of authority.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 2, Authority of Commander**_

_**Section 2-3 Command Succession**_

_**Page 2**_

**APPOINTMENT TO COMMAND**

Appointments to command must always be authorized by higher authority. For example, group commanders cannot re-

place themselves; the action must be elevated to the next higher level of command.

Appointments to command may be temporary or permanent. This permits appointment of an officer junior in rank (not

grade) to other eligible assigned officers during a temporary absence of the regularly assigned commander. Upon return

of the regularly assigned commander, no new appointment orders are required to re-vest that returning commander to

command authority.

An officer can never be appointed commander of one in a higher grade.

**ASSUMPTION OF AND APPOINTMENT TO COMMAND - GENERALLY**

AFI 51-604 provides that there is no authority for an officer to command another officer of higher grade whether by as-

sumption or by appointment to command. Thus, the former CE/SP exception which permitted an O-5 Deputy Combat

Support Commander (CSG/CD) to take command even though an O-6 commanded a subordinate CE or SP squadron (as

a separate unit on manpower documents), no longer exists. In such cases, it is necessary for the O-6 to take command,

rather than the O-5. The term "grade" equates to the office held (Captain, Major, Lieutenant Colonel, Colonel, etc.). The

term "rank" is generally used to denote seniority within a grade, although it also refers to the relative precedence among

different grades.

ANG will use computer-generated orders when possible. Prescribed forms for orders are not applicable to the ANG. AFI

33-328, para 2.2.

AFI 33-328 underscores the basic principal that written G-Series orders serve only to announce and record command suc-

cession. An administrative defect is not fatal. This follows the common sense approach to command succession taken in

the Court of Military Appeals decision in _United States v. Jette_ , 25 M.J. 16 (C.M.A. 1987). The Court of Appeals for the Armed Forces has followed this principle in many other cases involving command succession.

It is especially important to ensure accurate completion of orders when the officer succeeding to command is to perform

duties as a court-martial convening authority or adverse administrative actions. Actions taken in court-martial or adverse

administrative cases could be invalidated if there is a defective assumption or appointment to command.

The succession of command must be authorized and done properly to validate the subsequent actions of the new com-

mander.

_**KWIK NOTE: Know the differences between assumption of and appointment to command. Only the officer in the highest**_

_**grade eligible to succeed to command may do so. Consultation with the staff judge advocate is advised when questions in this**_

_**area arise.**_

**RELATED TOPICS:**

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**SECTION**

Sources of Commander's Authority

2-7

State ANG Headquarters

2-8

Judicial Review of Military Administrative Actions

18-5

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 2, Authority of Commander**_

_**Section 2-4 Command by Non-rated Officer**_

_**Page 1**_

**Command by Non-rated Officer**

**Updated by Lieutenant Colonel Beverly G. Schneider, October 2013**

**AUTHORITY:** AFI 51-604, _Appointment to and Assumption of Command_ (4 April 2006); OpJAGAF 1989/25, R _equest for_ _Waiver to Allow Non-rated Officer to Command_ (3 May 1989).

**COMMANDERS OF FLYING UNITS**

Command is exercised by virtue of office and the special assignment of officers who are eligible by law to command. Only

line officers having clearance authority for manned aircraft may command flying organizations. These officers must be in

active flying status, must hold a currently effective aeronautical rating, and must be qualified for aviation service.

**UNITS WITH A NONFLYING MISSION**

Flying organizations are defined as units whose primary mission is flying manned aircraft or planning for and directing

the employment of manned aircraft. Certain types of units have multiple missions, which include responsibility for con-

trolling and directing flying activities. These organizations may be commanded by non-rated officers provided the com-

mander of any subordinate flying organization is rated and in active flying status and clearance authority has been dele-

gated.

**WAIVER TO COMMAND UNNECESSARY**

In 1989, The Judge Advocate General of the Air Force considered whether a non-rated officer could be appointed to com-

mand a National Guard aerospace defense group. The unit exercised operational control of flying units, but it also had a

non-flying mission. The Judge Advocate General decided that no waiver was required to appoint a non-rated officer to

command since the unit had multiple missions. A rated officer was properly in command of the flying elements of the

organization and was delegated clearance authority.

**STATE HEADQUARTERS**

Certain positions have mandatory Aircrew Position Indicators (API) as reflected in ANGI 38-101 (15 Aug 05). ANGI 38-

101 has been rendered obsolete, but it has not been officially replaced. Contact your MPMO for further guidance.

For more information about command issues, consult your staff judge advocate.

_**KWIK-NOTE: Units with non-flying activities as all or part of their mission may be commanded by non-rated officers.**_

**RELATED TOPICS:**

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**SECTION**

Command Succession

2-3

State ANG Headquarters

2-8

_**Air National Guard Commander's Legal Deskbook**_

115

_**Chapter 2, Authority of Commander**_

_**Section 2-5 Jurisdiction**_

_**Page 1**_

**Jurisdiction**

**Updated by Lieutenant Colonel Beverly G. Schneider, October 2013**

**AUTHORITY:** 10 U.S.C. 801, _et seq._ (Uniform Code of Military Justice); 10 U.S.C. 2683; 18 U.S.C 13; 40 U.S.C. 3111

and 3112; applicable state law and regulations. 

## INTRODUCTION

Two major concepts determine the scope and extent of a commander's authority: (1) the status of the member over

whom the commander will exercise that authority, and (2) the jurisdiction where that authority will be exercised. The

former is addressed in the topic in this _Deskbook_ entitled _"STATUS OF NATIONAL GUARD MEMBERS."_ Jurisdiction is addressed here.

Generically, "jurisdiction" means the power or authority to act. To understand the control of a commander over the

installation, it is necessary to understand the basic concepts of title and jurisdiction.

**TITLE**

The state usually owns the land on which the ANG and active duty installations sit. Some installations sit on leased land.

Base civil engineers maintain the leases and deeds to Air National Guard and active duty installations. If there is a ques-

tion about title to your installation, consult your base civil engineers if you are on an ANG installation. If you are on an active duty installation, consult the active duty base civil engineers. ALWAYS CONSULT YOUR WING SJA IF YOU

HAVE ANY QUESTIONS ON TITLE.

**JURISDICTION**

Jurisdiction is a question separate from that of title. Jurisdiction includes the right to legislate and to enforce laws on the installation. Jurisdiction is sometimes called legislative jurisdiction. Title to the land does not necessarily include legislative jurisdiction over it.

There are different kinds of jurisdiction. The differences define the scope and extent of the authority of the holder of the particular kind of jurisdiction. However, jurisdiction defines the outer reaches of a commander's authority. The extent of

that authority, although permitted by principles of jurisdiction, may be further limited by instruction or policy.

Commanders and other key staff officers should possess a map of all areas on their bases, color-coded for different kinds

of jurisdiction that exist on the base.

Because the concept of jurisdiction is the starting point for all exercises of a commander's authority, it has been set forth in some detail here as a source of reference. The Related Topics listed below contain subjects in which the concept of jurisdiction will determine, or at least be a factor in determining, the scope and extent of a commander's authority to act.

**THE MEANING OF "JURISDICTION"**

The term "jurisdiction," when used in connection with land areas, means the authority to enact general municipal laws

for that area. "General municipal laws" govern the common things in life - wills, divorce, ordinary business transactions,

traffic accidents, public health, and so on. The power to pass such laws is reserved to the states.

Congress can pass and enforce laws applicable to the entire country, including federal reservations, but only to the extent

the Constitution authorizes Congress to do so. The above common matters are not within Congress' power. Congress,

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_**Chapter 2, Authority of Commander**_

_**Section 2-5 Jurisdiction**_

_**Page 2**_

however, can exercise such general powers for specific land areas over which the United States has "federal jurisdiction"

(exclusive, concurrent, or partial, as defined below). However, the U.S. does not exercise "federal jurisdiction" over most

government-owned property.

**TYPES OF JURISDICTION**

If the federal government has title to the land, it will have one of the four types of federal jurisdiction listed below.

**Exclusive Jurisdiction**

With exclusive jurisdiction, the U.S. possesses all of the legislative authority of the state over the installation, and the state has not reserved the right to exercise that authority concurrently with the U.S. Even where there is exclusive federal jurisdiction, the state usually reserves the right to serve civil and criminal process in the area for acts which occur outside the area. But if the state forgets to reserve such right, it may have been waived. Only Congress has authority to

enact laws for areas under exclusive jurisdiction, and the U.S. is solely responsible for law enforcement on installations

where there is exclusive jurisdiction.

**NET RESULT: ONLY THE U.S. HAS JURISDICTION, AND THE U.S. HAS ALL OF IT.**

**Concurrent Jurisdiction**

Under concurrent or joint jurisdiction, the U.S. possesses all the authority of the state, and the state has also reserved to itself the right to exercise, concurrently with the U.S., all the same authority. This means both governments have total

legislative authority over the same areas. In cases of conflict, the federal government wins because of the Supremacy

Clause of the U.S. Constitution. In concurrent jurisdiction, the state acquires no power over federal activities. The Su-

premacy Clause immunizes these activities from state regulations regardless of the jurisdictional status of the land on

which the activity is carried out.

**NET RESULT: BOTH THE U.S. AND THE STATE HAVE ALL THE JURISDICTION.**

**Partial Jurisdiction**

Where there is partial jurisdiction, the U.S. possesses some of the state's authority but the state has reserved the right to exercise other authority, most commonly, the right to tax private property. For those powers not specifically reserved by

the state, this is just like exclusive federal legislative jurisdiction. In other words, both the federal and state governments have some legislative power, yet neither has total legislative power. It is like cutting a pie. Each government exercises

some authority over some parts of the pie. In cases of conflict, the federal government wins by virtue of the Supremacy

Clause. The allocation of powers is based on the state statute granting partial jurisdiction. Congress can return powers to

the state (retrocede), but cannot add to them.

**NET RESULT: BOTH THE U.S. AND THE STATE HAVE SOME SEPARATE JURISDICTION.**

**Proprietary Jurisdiction**

Proprietary jurisdiction is that jurisdiction exercised by any owner of property - the right to grant or deny entrance to the property, etc. It has virtually no legislative authority. The federal government maintains supremacy and immunity for inherently governmental functions on the property. The only federal laws which apply are those which do not rely upon fed-

eral jurisdiction over the area, and include specific statutory federal crimes such as bank robbery, espionage, sabotage,

and counterfeiting.

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_**Chapter 2, Authority of Commander**_

_**Section 2-5 Jurisdiction**_

_**Page 3**_

The U.S. has acquired ownership of an area, but has obtained no measure of the state's legislative authority. Only the

state has the power to enact general municipal laws over the area. The state may not regulate the federal government be-

cause of the Supremacy Clause of the U.S. Constitution, nor tax federal property.

NET RESULT: THE HOLDER OF PROPRIETARY JURISDICTION (U.S. OR THE STATE) ONLY CONTROLS ACCESS

TO THE PROPERTY.

**INSTALLATION COMMANDER'S JURISDICTION**

Different portions of the installation (within the same state) may have different jurisdictional statuses, due largely to different state statutes at the time of acquisition of those portions of land.

Note, however, in proprietary jurisdiction situations, and the other forms of jurisdiction above, the military commander

retains full authority to maintain physical security and prevent breaches of the peace on the base; to apprehend and tem-

porarily detain civilian violators of either federal, state or local law on the base and turn them over to the appropriate federal or state authorities; and to have matters covered by federal law litigated in the federal court system. DO NOT AS-

SUME THAT YOU ARE THE INSTALLATION COMMANDER, PARTICULARLY IF YOU ARE LOCATED AT AN AC-

TIVE DUTY BASE OR A JOINT RESERVE BASE. IF YOU ARE IN DOUBT ABOUT WHO CONTROLS YOUR BASE,

ASK YOUR WING SJA.

**HOW JURISDICTION IS ACQUIRED AND RETURNED - SOURCES OF JURISDICTION**

The U.S. has or does not have jurisdiction by either:

1. Having kept jurisdiction even when it gave the land to the state;

2. Buying the land back from the state;

3. The state giving the jurisdiction to the U.S.; or

4. Giving the jurisdiction back to the state.

The federal government may have retained jurisdiction over the land at the time of the original land grant to the state.

This is very rare. Jurisdiction may be acquired by "purchase with the consent of the State" (Constitution, Article I, Sec-

tion 8, Clause 17) or cession by the state. "Consent" is usually the result of a general state law agreeing to all purchases.

If the state does not "consent," the U.S. can still buy the land, but the U.S. will not have exclusive jurisdiction. Usually the federal government gains jurisdiction over the installation by cession from the State. The cession of jurisdiction may

occur at the time of transfer of title from the state, or it may occur separately later. Cession of jurisdiction is accom-

plished through a deed to land. The state may opt to retain jurisdiction when it transfers title to the land. The federal government does not force a state to cede jurisdiction.

40 U.S.C. 3111 and 3112 provide that the head of the department having control over federal land must expressly accept

jurisdiction. By arrangement with the DoJ, the U.S. Attorney for the area must also be consulted prior to accepting juris-

diction. The U.S. Attorney may need additional staffing to handle the criminal docket transferred from the state.

Legislative jurisdiction may be relinquished (retroceded) by:

1. The federal government (but only with the consent of Congress) through cession to the state;

2. An unrestricted transfer of land to private hands; or

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_**Chapter 2, Authority of Commander**_

_**Section 2-5 Jurisdiction**_

_**Page 4**_

3. Reversion of jurisdiction under state law.

10 U.S.C. 2683 provides for retrocession of jurisdiction by military departments. Some state consent or cession laws pro-

vide that federal jurisdiction continues only if the property is used for specified purposes, and cessation of the conditions results in reversion of jurisdiction to the State. A grant of minor interests in land to private hands does not result in loss of federal jurisdiction _**.**_ The need for acceptance of retrocession by the state is unclear. Federal law (10 U.S.C. 2683) does not require state acceptance, but section 2683 defers to state procedures, which may require acceptance.

**PRACTICAL EFFECT**

Exclusive jurisdiction is rarely beneficial. The lack of state jurisdiction means that any criminal prosecutions, even misdemeanors, must be prosecuted by the federal government, or not at all. Crimes that violate state, but not a specific federal

law, must be prosecuted through the federal Assimilative Crimes Act (18 U.S.C 13). Exclusive jurisdiction or lack of it

does not affect the military mission. For example, many ACC bases have never been under exclusive jurisdiction.

Concurrent jurisdiction creates a "primary jurisdiction" problem in criminal matters: which of two equals shall prosecute

a criminal case? This question is usually resolved by custom and occasional bargaining over an individual case. Although

prosecution by both sovereigns would not violate the Double Jeopardy Clause of the Constitution, one sovereign will or-

dinarily defer to a prosecution by the other.

Partial jurisdiction just costs money--taxes are paid by contractors and passed on to the Air Force hidden in contract

prices. Congress has consented in the Buck Act to imposition of income, sales and gasoline taxes on areas of exclusive,

concurrent, or partial jurisdiction, so only property taxes are involved.

**DoD/AF POLICY**

In 1956, an Attorney General's Commission recommended that exclusive and concurrent jurisdiction should no longer

be acquired, and unneeded jurisdiction should be retroceded. The report was approved and federal administrators of real

property were directed by President Eisenhower to follow it as a guide. The policy also provides that the head of a mili-

tary department may still acquire exclusive jurisdiction under exceptional circumstances. In 1971, the Public Land Law

Review Commission, a Congressional-Executive Branch body, came to the same conclusion. DoD has followed this policy

since 1956, based on the presidential endorsement. Federal law (40 U.S.C. 3112) authorizes acceptance of exclusive juris-

diction but does not require it. Prior to 1940, it was required.

Since 1956, the Air Force has acquired exclusive jurisdiction in only a few instances due to "exceptional circumstances."

**RELATIONSHIP BETWEEN MILITARY CRIMINAL JURISDICTION AND CIVILIAN LAW**

Some individuals have the impression that the military is totally separate and apart from the civilian community, and

that the military is governed by laws and rules made by and for the military. This, of course, is not true. Although there

is a substantial difference between military and civilian life, we are all a part of the same American community. An inter-

relationship between the civilian and military communities exists in many areas, including the area of law enforcement.

This section points out the origin of military law and its operation in conjunction with civilian law.

The primary source documents for military law on active duty are the Uniform Code of Military Justice (UCMJ) and the

Manual for Courts-Martial (MCM). For the ANG, the primary source document is the State Code of Military Justice, if

your state has one.

The UCMJ is a law passed by the Congress of the United States. The MCM is an executive order promulgated by the

President of the United States and contains the specific procedures to be followed in operating under the UCMJ. A State

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_**Chapter 2, Authority of Commander**_

_**Section 2-5 Jurisdiction**_

_**Page 5**_

Code of Military Justice is a law passed by the state legislature of the state where the base is located. ( _See_ section on State Model Code of Military Justice.)

The military has UCMJ court-martial jurisdiction over off-base offenses committed by Title 10 active duty military mem-

bers. Whether the Guard has jurisdiction to court-martial an ANG member for an off-base offense depends upon the

state code and the status of the member at the time of the offense.

**ANG members in Title 32 status are not subject to the UCMJ even if they are on an active duty base.**

All ANG members are still subject to civilian criminal laws while in the military. Some offenses are violations of both

civil and military laws and both civil and military authorities have concurrent jurisdiction. However, for some uniquely

military offenses such as AWOL, only the military has jurisdiction. If one act violates both a civilian and a military law, as a matter of law, an ANG member might be tried by both military and civilian authorities for the same offense. However,

Air Force and ANG policy precludes courts-martial prosecution by the military for an offense disposed of in civilian

courts, regardless of the outcome in the civilian court.

However, if an ANG member is convicted of an offense, particularly a felony offense, by civilian authorities, the ANG

commander should impose some type of quality force management action, i.e. , the administrative discharge of the mem-

ber.

SHOULD YOU BECOME AWARE THAT A MEMBER OF YOUR WING/SQUADRON/UNIT HAS BEEN ARRESTED/

INDICTED OR OTHERWISE INVOLVED WITH THE CIVILIAN CRIMINAL JUSTICE SYSTEM, REGARDLESS OF

THEIR STATUS AS A TRADITIONAL, AGR OR AIR GUARD MILITARY TECHNICIAN, YOU SHOULD IMMEDIATELY

CONTACT YOUR WING SJA. YOU DO NOT WANT TO BE EMBARRASSED TO DISCOVER A CONVICTED FELON,

WHO IS INCARCERATED, ON YOUR ROLLS AS A MEMBER.

**CONCLUSION**

The concept of jurisdiction affects the ability to enact laws, regulate conduct, prosecute crimes, and control activities.

It affects people and places. It governs the conflict between two sovereigns - the federal and state governments - which

has the power to pass and enforce laws affecting those people and those places.

Once commanders know which sovereign's law governs and the status of their members in a situation, they will know

the scope and extent of their authority over the people and places under their command.

_**KWIK-NOTE: Jurisdiction defines the commander's authority.**_

**RELATED TOPICS:**

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**SECTION**

Access to Military Installations – General Guidelines

3-2

Aircraft Accidents and Safety Investigations Off-Base

16-2

Airport Joint Use Agreements

25-2

Arrest by Civilian Authorities

8-6

Arrests Authorized by the ANG

8-7

Civilian Misconduct on Base

3-7

Counter-drug Support Program

6-5

Courts-Martial

8-15

Criminal Investigations, Prosecutions and Reporting – DoD and DOJ

8-12

Federal Government Property Furnished to the ANG

25-10

_**Air National Guard Commander's Legal Deskbook**_

120

_**Chapter 2, Authority of Commander**_

_**Section 2-5 Jurisdiction**_

_**Page 6**_

Federal Magistrates

8-3

Fire Protection Jurisdiction

25-11

Freedom of Expression – Restrictions on Military Members

14-9

Installations Jointly or Solely Occupied by the ANG

25-12

Leases and Armory Use Agreements

3-12

Military Justice Jurisdiction – ANG Members in Title 10 Status

8-2

National Defense Area

25-15

Real Property – Acquisition and Retention

25-18

Sources of Commanders' Authority

2-7

State Model Code of Military Justice

8-21

Status of National Guard Members

11-7

_**Air National Guard Commander's Legal Deskbook**_

121

_**Chapter 2, Authority of Commander**_

_**Section 2-6 Problem Solving - ANG and USAF Commanders**_

_**Page 1**_

**Problem Solving - ANG and USAF Commanders -**

**Similar and Different Approaches**

**Updated by Lieutenant Colonel Beverly G. Schneider, October 2013**

**AUTHORITY:** All federal and state authorities governing both components' commanders; applicable state law and in-

structions governing ANG commanders. 

## INTRODUCTION

Conceptually, in the approach to and resolving problems that arise in a non-mobilized status, Air National Guard com-

manders should understand that while there are many similarities between themselves and active duty commanders,

there are also many differences. The differences stem inherently from the state and federal responsibilities of the ANG

which require adherence to the laws of and control by two sovereigns. As a result, there are Air Force instructions that

are not applicable to the Air National Guard, Air National Guard instructions that are not applicable to the active duty

Air Force, and state laws that are only applicable to the Air National Guard of that state. It is this basic difference ANG

commanders must keep in mind as they lead and manage their people to accomplish their missions and responsibilities.

**SIMILARITIES**

_U.S. CONSTITUTION, FEDERAL STATUTES, INSTRUCTIONS, DoD DIRECTIVES AND SECRETARY OF THE AIR FORCE AP-_

_PLICABLE DIRECTIVES, INSTRUCTIONS AND POLICIES_

ANG commanders and active duty commanders are both governed by and subject to the legal authorities listed immedi-

ately above, as these authorities impact the federal mission of both components.

_APPLICABLE AIR FORCE INSTRUCTIONS, MAJCOM SUPPLEMENTS AND MAJCOM INSTRUCTIONS_

Those Air Force instructions and MAJCOM publications that are applicable to the Guard govern both ANG and active

duty commanders, as these authorities also impact the federal mission of both components. Note, some Air Force and

MAJCOM Instructions do not apply to the ANG; you should check the introductory paragraphs of the AFI to determine

applicability to the Guard.

_INHERENT AUTHORITY OF COMMAND_

By nature of the position and the military structure, ANG and active duty commanders have authority to govern the

members under their command, limited only by applicable federal or state law. Generally, ANG and active duty installa-

tion commanders have ultimate authority over all activities on their bases subject to federal and state law, although for

ANG commanders the source of much of that authority is state law.

**DIFFERENCES**

_STATE CONSTITUTIONS, STATUTES, AND STATE COURT DECISIONS_

Active duty commanders are subject to federal law, and often are not subject to state law, while ANG commanders are

subject to both federal and state law, and often must obey state law instead of federal law. This is partly due to the **** differences between Title 10 and Title 32 status, and whether a base is on exclusive federal land or state land. A review of the

Table of Contents in this Deskbook will indicate the many topics also governed by or subject to state law. One example is

that while the UCMJ governs military criminal conduct in the Title 10 Air Force, state law, whether the member is

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_**Chapter 2, Authority of Commander**_

_**Section 2-6 Problem Solving - ANG and USAF Commanders**_

_**Page 2**_

in military or civilian status, governs the Title 32 Air National Guard. Another example involves service clubs for NCO's

and Officers. Federal instructions govern the operation of service clubs in the Air Force, and a state liquor license need

not be obtained. Conversely, ANG service clubs not only must comply with applicable federal regulations and instruc-

tions governing their operation, but also must comply with state law requirements for obtaining liquor licenses and in

other aspects of their operations.

If the ANG is mobilized in the active service of the state, it often is governed solely by state law.

_AIR NATIONAL GUARD INSTRUCTIONS AND PUBLICATIONS_

While active duty commanders are not subject to these authorities, ANG commanders are. These authorities are tailored

to the peculiar aspects of state control of the Guard in peacetime.

**EXCEPTIONS**

When the ANG is mobilized and in a Title 10 status, all Air Force Instructions apply to its members. Likewise, when

ANG members deploy OCONUS or otherwise perform duty in Title 10 status, they are subject to all Air Force Instruc-

tions. However, in these situations, and depending on a state's military law, ANG members may also be subject to state

law to the extent it is not inconsistent with federal law.

**COMMANDER'S APPROACH TO PROBLEMS**

When you, as an ANG commander, are confronted with a problem, ask yourself the following questions:

1. Does federal law (including the AFIs, ANGIs) directly and exclusively govern this area?

If yes, get the law or instruction and proceed under that law (and as with all steps in this approach, with

the advice of your staff judge advocate).

2. If no, do both federal laws and state laws directly govern aspects of this area?

If yes, get both laws and proceed under those laws.

3. If federal laws (including AFIs, ANGIs) do not govern this area at all, does state law directly govern it?

If yes, get the state law and proceed under that law.

4. If no, proceed as indicated below.

When a particular problem is not covered directly by a specific federal law, an applicable Air Force Instruction, an

existing Air National Guard Instruction, or a specific state law, here are the questions you should ask yourself:

1. What do I want to do to solve or deal with the problem?

2. Even though there are no federal or state laws directly governing the subject, are there federal laws (including AFIs,

ANGIs) and/or state laws that authorize me to do what I want to do?

3. If no laws (including AFIs, ANGIs) exist to permit me to do what I want to do, are there laws applicable to this situa-

tion that permit another solution?

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_**Chapter 2, Authority of Commander**_

_**Section 2-6 Problem Solving - ANG and USAF Commanders**_

_**Page 3**_

4. If no law exists which permits me to do what I want to do or permits any other solution to the problem that is accept-

able to me, is there anything that authorizes me to act under my inherent authority as the commander?

5. If nothing authorizes you to exercise your inherent authority or you are prohibited from acting, you probably cannot

and should not act, since such action will be without authority and may be illegal. Acting in these situations may subject

you to disciplinary or adverse administrative action and/or personal liability for money damages.

While you may not always be able to do what you want to do to solve or deal with a problem that confronts you, with all

the existing legal authorities and remedies at your disposal, and with the advice of your staff judge advocate, you should

rarely confront a problem which is not capable of being resolved or dealt with satisfactorily.

**BOTTOM LINE**

Because the decisions you make now often have legal ramifications which may later limit your adverse action options or

flexibility, here is a suggestion which will help you recognize when to seek the advice of your SJA before implementing

that decision:

Before you act (whether command directing a urinalysis test, sending a letter, etc.) ask yourself the following question:

1. Could what I do or decide lead to adverse action against the member or liability against myself?

2. If the answer is yes, DO NOTHING AND MAKE NO DECISION UNTIL YOU HAVE CONSULTED YOUR SJA. The

fact that your SJA is a traditional/part-time guardsman makes NO DIFFERENCE. All Wing SJAs are traditional guards-

man. They should be consulted even if you must do so between drill periods.

_**KWIK-NOTE: Know what you can and cannot do to solve your problems.**_

**RELATED TOPICS:**

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**SECTION**

Sources of Commander's Authority

2-7

Status of National Guard Members

11-7

Preventive Law Program

17-15

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_**Chapter 2, Authority of Commander**_

_**Section 2-7 Sources of Commander's Authority**_

_**Page 1**_

**Sources of Commander's Authority**

**Updated by Lieutenant Colonel Beverly G. Schneider, October 2013**

**AUTHORITY** : Federal statutes, directives, instructions and policy (too numerous to list); applicable state law and in-

structions. 

## INTRODUCTION

The source of a commander's authority depends upon the category and status of individual over which the commander is

attempting to exercise authority and the category and status of the commander.

**MILITARY MEMBERS**

The commander's authority over military members extends to conduct of the members whether they are on or off the

installation.

1. Commanders exercise authority by virtue of their status as a superior commissioned officer.

2. The member, whether enlisted or officer, took an oath upon enlistment or commissioning to obey the lawful orders of

those appointed over the member.

3. State Codes of Military Justice (similar to the UCMJ, Articles 89, 90, and 92) may impose punishment upon those mili-

tary members who fail or refuse to respect the commander's authority.

5. Commanders need to be aware of the status of the member at the time of the alleged misconduct, and their status dur-

ing duty (i.e., traditional, AGR, Air Guard Military Technician) to be able to take appropriate action.

**CIVILIAN EMPLOYEES**

The commander has authority over civilian employees on base and acts as the employer of civilian employees. The com-

mander can give promotions and bonuses, as well as sanctions and adverse actions.

**CIVILIANS - ON BASE**

The commander has less authority over non-service connected civilians on base.

1. As "mayor" of the base, under state statutes and regulations, the commander has authority to maintain order and disci-

pline, and to protect federal resources.

2. As a practical matter, this authority may be limited to detaining individuals for civilian law enforcement officials and

barring them from the installation.

3. The installation commander may bar an individual from the base for misconduct, but must follow applicable proce-

dural requirements under state law.

**CIVILIANS - OFF BASE**

The commander has almost no authority over civilians off base.

125

_**Air National Guard Commander's Legal Deskbook**_

_**Chapter 2, Authority of Commander**_

_**Section 2-7 Sources of Commander's Authority**_

_**Page 2**_

1. While commanders still have the responsibility to protect federal resources off base, and even though the _Posse_

_Comitatus_ Act, 18 U.S.C. 1385, does not apply to the Guard in Title 32 or state active duty status, practical issues of specific legal authority for proposed actions, liability protection and policy may greatly restrict their ability to

deal with civilians who flaunt their authority.

2. The commander's authority is greater if the situation permits the commander to declare a National Defense Area

off base.

3. As a general rule, the commander must defer to civilian law enforcement agencies to deal with all civilian

misconduct which occurs off of the installation.

4. The major exceptions to the general rule are found in 10 U.S.C. sections 371 through 380 and under state law,

which specify how the commander may aid civilian law enforcement agencies, especially under the Counter-Drug

Support Program in the area of combating violations of illegal drug laws.

The Related Topics listed below contain subjects bearing on the source and limits of the commander's authority.

_**KWIK-NOTE: Commanders should only act with authority and then only within the limits of that authority.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Access to Military Installations – General Guidelines

3-2

Aid to Civilian Authorities

6-2

Arrests Authorized by the ANG

8-7

Civilian Misconduct on Base

3-7

Command Succession

2-3

Commercial Solicitation on Base

3-9

Counter-Drug Support Program

6-5

Driver's Licenses

21-3

Enforceability of Orders by Air Force Officers to ANG Personnel Not in Federal Service

11-5

Freedom of Expression – Restrictions on Military Members

14-13

Inspections and Searches

8-16

Investigation by Commander or Suspected Minor Offenses

16-10

Investigations and Inquiries

16-11

Jurisdiction

2-5

Leases and Armory Use Agreements

3-12

Motor Vehicle Rules – Military Bases

21-6

National Defense Area

25-15

Nonjudicial Punishment

24-11

Personal Liability of Federal and State Officials

18-9

Political Activities

7-12

Posse Comitatus

6-7

Possession of Privately Owned Firearms on Base

3-15

Quality Force Management Actions

24-12

Selective Enforcement

24-14

Smoking in ANG Facilities

3-16

Status of National Guard Members

11-7

Suspension of Base Driving Privileges

21-7

USAF Instructions, ANG Supplements and Unit Instructions

1-39

Use of Firing Range by Local Police, Boy Scouts and other Non-military Persons or Groups

3-17

Vehicle Registration

21-8

_**Air National Guard Commander's Legal Deskbook**_

126

_**Chapter 2, Authority of Commander**_

_**Section 2-8 State ANG Headquarters**_

_**Page 1**_

**State ANG Headquarters**

**Updated by Lieutenant Colonel Beverly G. Schneider, October 2013**

## INTRODUCTION

The state ANG headquarters advises the senior staff that acts on behalf of the Adjutant General. It provides Air informa-

tion and evaluation, issue resolution, and action recommendations. Wing commanders must understand the important

role of ANG state headquarters. ANG state headquarters should be involved in and informed of all contacts with the Na-

tional Guard Bureau or the active duty Air Force.

**OVERALL RESPONSIBILITIES**

The state ANG headquarters:

1. Commands, controls and supervises all ANG units in the state;

2. Directs employment of ANG units during state emergencies;

3. Interprets Air Force and National Guard Bureau policies and coordinates implementation and compliance within the

state;

4. Develops Air positions on major issues, including mission requirements and placement of units;

5. Is the point of contact and coordination with other state and federal legislative, executive and judicial agencies;

6. Provides Air liaison to the State Area Command;

7. Provides technical assistance and policy guidance to field units;

8. Provides personnel available for worldwide assignment;

9. Provides necessary post-mobilization support and supervision to ensure continuity of ANG operations; and

10. Issues instructions and directives, and supplements Air Force and National Guard instructions and directives.

**SPECIFIC FUNCTIONS**

The ANG state headquarters is an experienced, compact staff unit designed along functional lines. Its members are sen-

ior personnel who carry out the policies and programs of the Adjutant General. The manning and grade limitations at

state headquarters are determined largely by the size of the state ANG. Among the mandatory functions of state head-

quarters are:

1. Command

a. Commands, controls and directs the state ANG;

b. May be the appointing authority for investigations, inquiries, or boards, and for congressional and legislative

inquiries and aircraft accidents;

_**Air National Guard Commander's Legal Deskbook**_

127

_**Chapter 2, Authority of Commander**_

_**Section 2-8 State ANG Headquarters**_

_**Page 2**_

c. Depending on state instructions, acts as the demotion authority of certain higher-ranking NCOs in nonjudicial punish-

ment actions.

2. Operations

Evaluates operational readiness of units and personnel, and oversees the operations area.

3. Personnel

a. Oversees personnel arena and develops policies and directives relating to promotion, retention, recruiting and separa-

tion.

b. Is the discharge authority for enlisted members from the state ANG, and at times, also as a Reserve of the Air Force.

4. Executive support

Provides administrative and executive services.

5. Enlisted advisor

Reviews enlisted policies and procedures and conducts counseling and interview sessions through field visitations (Staff

Assistance Visits).

6. Air Surgeon

Oversees medical programs and reviews medical actions at state level.

7. Staff Judge Advocate

a. Provides appellate legal review on various administrative and military justice actions.

b. Provides legal opinions and advice on command directed inquiries, investigations, inspector general and EEO com-

plaints.

c. Coordinates on appointment of all ANG judge advocates in the state.

d. Appoints legal advisors for administrative discharge boards.

e. Should be notified of any potential conflict of interest of wing JAs so conflict-free counsel may be detailed to represent the military member involved.

f. Should be notified of all officer and other high profile/publicity cases.

g. Coordinates on all litigation in state and federal courts involving the ANG and subordinate wings.

8. Recruiting and retention manager

Oversees the state ANG recruiting and retention program.

_**Air National Guard Commander's Legal Deskbook**_

128

_**Chapter 2, Authority of Commander**_

_**Section 2-8 State ANG Headquarters**_

_**Page 3**_

**CONCLUSION**

The state ANG headquarters is an important resource for guidance and information for units. Wings should never over-

look or bypass this resource when seeking guidance or contacting higher headquarters. The state ANG Headquarters

Staff Judge Advocate is an important source for legal advice and information, but unit commanders should first consult

their unit staff judge advocate for legal advice.

_**KWIK-NOTE: Units should route all communication with higher headquarters through their state ANG headquarters.**_

_**Air National Guard Commander's Legal Deskbook**_

129

_**Chapter 2, Authority of Commander**_

_**Section 2-9 Role of the First Sergeant**_

_**Page 1**_

**Role of the First Sergeant**

**Updated by Lieutenant Colonel Beverly G. Schneider, October 2013**

**AUTHORITY:** AFI 36-2113, _The First Sergeant_ (19 December 2007, Certified Current 4 January 2010); AFI 36-2101, _Classifying Military Personnel (Officer and Enlisted)_ (25 June 2013); AFI 36-2109, _Chief Master Sergeant of the Air Force and Command_ _Chief Master Sergeant Programs_ (13 August 2007); ANGI 36-2109, _The ANG Command Chief Master Sergeant Program_ (2 June 2010, IC1, 11 June 2012).

**DESIGNATED REPRESENTATIVE OF THE COMMANDER**

The position of first sergeant provides the commander with a personal representative; an enlisted member who functions

as an extension of the commander in all matters relating to the enlisted force. The first sergeant's authority is an exten-

sion of the commander's authority. To fulfill the duties and responsibilities of the position, the first sergeant exercises

general supervision over all assigned enlisted personnel. In this role as representative, the first sergeant acts as the commander's voice, ensuring the commander's policies, goals and objectives are communicated, understood, and completed.

**ADVISOR TO THE COMMANDER**

The first sergeant advises the commander on a wide range of topics, including the health, _esprit de corps_ , discipline, mentoring and well-being of the enlisted corps. The first sergeant does this by acting as the commander's eyes and ears, and

closely monitors enlisted issues, morale, and quality of life. Through formal training, the first sergeant develops an understanding of most enlisted personnel programs including enlistments and reenlistments, promotion, the Fitness Program,

the Inspector General program, the Military Equal Opportunity and Treatment program, awards and decorations, selec-

tive retention, and Family Care Plans. Besides these personnel programs, the first sergeant also receives training and edu-

cation in areas that impact enlisted force management, including: principles of diversity, protocol, formations, ceremo-

nies, maintenance of discipline, and deployments. Observing enlisted personnel programs from a "macro" perspective,

and monitoring overall enlisted personnel force management, the first sergeant provides advice and feedback to the com-

mander, enhancing the commander's ability to effectively manage and lead the enlisted force.

**MISSION READINESS**

The first sergeant is tasked with providing the commander a mission-ready enlisted force, capable of executing the unit

mission. To do this, the first sergeant must be familiar with the unit's mission, personnel (authorized and assigned), and

training requirements. The first sergeant works closely with fellow senior noncommissioned officers and supervisory per-

sonnel to ensure that enlisted members are prepared to deploy in support of mission requirements. This includes provid-

ing leadership and guidance which enables supervisors and members to resolve complaints/issues at the lowest level.

The first sergeant is charged with identifying and resolving issues that, if left unchecked, could adversely impact the

readiness of enlisted members. To enhance the readiness of the enlisted force, the first sergeant must ensure training is

provided on matters of leadership, customs and courtesies, dress and appearance, self-discipline, adherence to standards,

drill and ceremony, safety, hygiene, and sanitation. To ensure that the enlisted force is prepared to fulfill the unit mis-

sion, the first sergeant is tasked with the following responsibilities:

**Assists Enlisted Personnel in Adapting to the Military Environment**

The first sergeant is tasked with monitoring the unit sponsorship program and is responsible for conducting the orienta-

tion program. During in-processing, the newly-assigned member meets with the first sergeant and should receive a com-

prehensive briefing covering such topics as Family Care Plans, dress and personal appearance, attendance, fitness, train-

ing, and deployments. This orientation helps ensure the member is prepared to fulfill his or her military mission and that

unit standards are understood. To further ensure that enlisted members are adjusting to the organization and their duty

assignments, the first sergeant frequently contacts unit members at work, home, and **** at recreation areas.

_**Air National Guard Commander's Legal Deskbook**_

130

_**Chapter 2, Authority of Commander**_

_**Section 2-9 Role of the First Sergeant**_

_**Page 2**_

**Assists the Commander in the Preparation and Execution of Unit Training and Information Programs**

The first sergeant should be familiar with unit training requirements including specialty training, professional military

education (PME), ancillary training, as well as continuing education. Although not specifically involved with specialty

training, the first sergeant assists the commander with ensuring training is appropriate and that it supports mission re-

quirements. The first sergeant is tasked with promoting DE/PME, with an emphasis on in-residence attendance, as well

as supporting and promoting ancillary training and promoting continuing education whenever possible. The first ser-

geant should also work closely with supervisory personnel to promote participation in the Community College of the Air

Force (CCAF). To fulfill these responsibilities, the first sergeant should communicate regularly with unit personnel,

make frequent visits to work areas where training is being conducted, be familiar with the unit's On-the-Job Training

(OJT) roster, and regularly communicate with the Unit Training Manager (UTM).

The first sergeant assists the commander with ensuring information is communicated to all levels of the enlisted force.

This is accomplished through regularly scheduled commander's calls, unit newsletters, shop visits, e-mail, etc.

**Focal Point for Support Agencies**

The first sergeant utilizes numerous support agencies, both on and off base, to ensure that the enlisted force can deploy

free of distractions. The first sergeant is tasked with being the vital link between the commander, enlisted personnel, and

support agencies. He or she must maintain liaison with base agencies to ensure availability of services for unit members.

Maintaining a listing of agencies complete with points of contact, the first sergeant can rapidly and effectively utilize the appropriate agency to address specific issues. On-base agencies frequently utilized by the first sergeant include the Judge

Advocate office, Force Support Squadron, Financial Management office, Services, Medical Squadron, Military Equal Op-

portunity and Treatment office, and Family Support. The first sergeant should also maintain a listing of available off-base

referral agencies such as Red Cross, Employer Support of the Guard and Reserve (ESGR), Department of Labor, Legal

Services, Domestic Violence Centers, Police Departments, Social Services, and United Way.

**Maintenance of Discipline**

While the supervisor is the front line in maintaining discipline, the first sergeant is the focal point for ensuring discipline is fairly and equitably maintained. To ensure a quality force, the first sergeant works closely with the commander and

with supervisors to quickly correct conduct prejudicial to good order and discipline. The first sergeant is trained in pre-

vention, correction, and punishment options associated with maintenance of discipline, and is involved in all disciplinary

issues regarding enlisted personnel. The first sergeant's focus centers on preventive techniques which educate and in-

form the member of the importance of adhering to military standards. When prevention fails, the first sergeant provides

expertise regarding administrative actions designed to correct a member's sub-standard behavior or performance. Correc-

tive actions include counseling, administrative reprimands, administrative demotions, and administrative separations.

Punishment options include non-judicial punishment (NJP) and judicial punishment. To support punishment options,

the first sergeant is trained in rights of the accused; the Uniform Code of Military Justice (UCMJ); State Codes of Mili-

tary Justice; and the Manual of Courts Martial **(** MCM). In addition, the first sergeant must be versed in dealing with

members in a variety of statuses. The first sergeant, acting as the commander's representative, maintains liaison with the

legal office to ensure any adverse actions are appropriate and that each proposed action receives a legal review.

**Supervises Administrative Actions Directed by the Commander**

To ensure personnel actions are accomplished in an appropriate and timely manner or to ensure a member's privacy, the

commander may direct the first sergeant to supervise specific administrative actions. These actions could include items

such as: promotions, demotions, letters of admonition, counseling or reprimand, fitness program actions, unsatisfactory

participation correspondence, and awards and decorations. The first sergeant performs a quality force review to ensure

actions are appropriate, that they are accomplished correctly, and that all actions are completed in a timely manner. The

first sergeant will also coordinate with the staff judge advocate regarding any adverse administrative actions.

_**Air National Guard Commander's Legal Deskbook**_

131

_**Chapter 2, Authority of Commander**_

_**Section 2-9 Role of the First Sergeant**_

_**Page 3**_

**DEPLOYMENT RESPONSIBILITIES**

**Pre-Deployment**

During the pre-deployment phase, the first sergeant ensures unit personnel are prepared to deploy to support opera-

tional requirements. The first sergeant also works to ensure that deployed personnel will be cared for upon arrival at the

deployed location. The first sergeant will review personnel listings as part of a quality force check and ensure potential

problems are addressed before deployment. The first sergeant, whenever possible, should deploy as part of the ADVON

team. As part of the ADVON team, the first sergeant coordinates the support of deployed personnel. The location and

type of deployment will dictate specific actions. This function alleviates distractions and ensures personnel are prepared

to focus their attention on mission requirements. The first sergeant must inspect and assign billeting. The assignment of

billeting should consider operational requirements such as shift work and crew rest cycles. The first sergeant contacts

services personnel to coordinate billeting and to ensure the aerospace dining facility knows of increased requirements

based on incoming personnel. The first sergeant will also coordinate with other base agencies such as the hospital, Judge

Advocate office, Morale Welfare & Recreation office, and the Family Support Agency. The first sergeant is the central focal point for ensuring that deployed personnel are cared for and fed. The first sergeant gathers as much information as

possible prior to deploying so personnel are well informed and to ensure the reception plan is executed smoothly.

**Deployment Phase**

At the beginning of the deployment phase, the first sergeant ensures that the reception and bed down process is com-

pleted smoothly. Throughout the deployment phase, the first sergeant concerns himself or herself with actions that sus-

tain the enlisted force. Specific actions will be dictated by circumstances at the deployed location. Examples of sustain-

ment actions include: sanitation, hygiene, recreation, billeting, unit functions, information briefs, morale calls, awards

and decorations, and commander's call. The first sergeant should constantly be involved with ensuring the care of person-

nel. Frequent visits to work, billeting, and recreation areas help ensure the first sergeant is able to quickly identify and resolve issues that could impact mission accomplishment.

**Re-Deployment Phase**

In preparation to re-deploy to home station, the first sergeant ensures the unit's out-processing, along with its reception

at home station, is planned in a manner which facilitates a smooth and orderly process. Areas to consider include: accom-

plishment of an out-processing briefing, the establishment of out-processing checklists, billeting turnover, equipment

turn in, orders certification, travel pay, government travel card briefing, as well as any required home station actions that must be accomplished prior to release.

**SELECTION AND UTILIZATION**

The Wing Command Chief Master Sergeant (CCM) is designated as the functional manager for first sergeants assigned

to an installation. As such, the CCM is responsible for management of the first sergeant program at the installation level.

The CCM is tasked with establishing a selection board process which meets the requirements in AFI 36-2113. Through

proper utilization of the selection board, the commander is provided with the best possible pool of candidates from

which to choose the first sergeant. Because of the demanding responsibilities associated with the position of first ser-

geant, only the most dedicated and professional members should be considered for this Special Duty Identifier (SDI).

Once selected, first sergeants must be utilized IAW AFI 36-2113. The first sergeant must be provided with private office

accommodations suitable for counseling, preferably co-located with the commander. Although administrative assistance

is required to perform these duties, using additional duty first sergeants within the ANG is expressly prohibited IAW AFI

36-2113 (exception: State Headquarters).

_**Air National Guard Commander's Legal Deskbook**_

132

_**Chapter 2, Authority of Commander**_

_**Section 2-9 Role of the First Sergeant**_

_**Page 4**_

**RELATED READING / REFERENCES**

AFI 36-2113, _The First Sergeant_

AFI 36-2101, _Classifying Military Personnel (Officer and Enlisted)_

AFI 36-2109, _Chief Master Sergeant of the Air Force and Command Chief Master Sergeant Programs_

ANGI 36-2109, _The ANG Command Chief Master Sergeant Program_

_**KWIK-NOTE: IAW current Air Force policy, the first sergeant must review all enlisted decorations and advise the com-**_

_**mander on quality force indicators which warrant consideration before the package is approved orforwarded for approval.**_

**RELATED TOPICS:**

Too numerous to list. _See_ particularly the topics in Chapter 23 ( _People Problems_ ), Chapter 24 ( _Quality Force_ _Management_ ), Chapter 20 ( _Mobilization Matters_ ), and Chapter 9 ( _Discrimination Matters_ ).

_**Air National Guard Commander's Legal Deskbook**_

133

_**Chapter 2, Authority of Commander**_

_**Section 2-10 Legislative Process**_

_**Page 1**_

**Legislative Process**

**Updated by Lieutenant Colonel Beverly G. Schneider, October 2013**

**AUTHORITY:** Constitution of the United States of America; _State of Wisconsin 2011-2012 Blue Book_ (Wisconsin Legislative Reference Bureau 2011); Sullivan, John V., _How Our Laws are Made_ , House of Representatives Document 110-49 (U.S.

Government Printing Office 2007). 

## INTRODUCTION

Air National Guard units are governed the laws, policies and regulations of many federal and state entities. On the fed-

eral side, rules and responsibilities are levied by the U.S. Constitution, Congress, Department of Defense, Air Force, and

National Guard Bureau. On the state side, Air National Guard units are subject to the laws and policies enacted by the

Governor, the state legislature, and the state joint force headquarters. Under both the federal and state systems, the legislative process becomes crucial to understand. This article discusses the legislative process to explain how a proposed

piece of legislation becomes a law in both the state and federal systems.

At both the federal and state levels, there are two houses that make up the legislative branch. (The only state that has a

single chamber or house—known as a unicameral legislature—is Nebraska.) In the federal system, they are the Senate

and the House of Representatives: the two chambers of the Congress. Most states refer to one house as the Senate, and

the other as the Assembly, House of Delegates or House of Representatives. A bill can originate in either house and must

be approved by both houses before moving on for signature or veto by the President or Governor to become law. The

process seems simple, but is often not as simple or straightforward as it appears.

We will first discuss the federal process.

**FEDERAL LEGISLATIVE PROCESS**

"All Legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate

and House of Representatives." Art. I, Sec. 1, U.S. Const. The power to legislate is the power to make law. A law is made

through a multi-step process involving both houses of Congress. With few exceptions, the Senate and House have equal

legislative functions and powers. Each house is authorized by the Constitution to determine its own rules. Art. I, Sec. 5,

U.S. Const.

A bill is essentially a proposed law that must be introduced into either the House or the Senate. Bills can be public or private. A public bill affects the public generally; a private bill affects a specific individual or private entity only. Private bills are typically used to address specific cases involving immigration and naturalization or claims against the United States.

Any Member of the House, Delegate, or the Resident Commissioner from Puerto Rico may introduce a bill when the

House is in session by placing it in a wooden box in the House Chamber known as the "hopper." This person is the pri-

mary sponsor, and it is common that a bill will have co-sponsors when introduced.

The bill is entered into the Journal, printed in the Congressional Record, and then assigned to a committee of the House

or Senate for study. Bills affecting the armed forces are studied by the Armed Services committees of the House and Sen-

ate. A committee's study of a bill usually begins by soliciting input from federal departments and agencies with a stake in

the subject. The committee or subcommittee reviewing the bill conducts hearings and considers any amendments pro-

posed by members of the committee. Many bills do not survive review by the committee, ending the bill's prospect of

becoming law. If a committee reports the bill favorably, the committee's staff drafts a committee report. These committee

reports normally provide the best account of a law's legislative history.

If the bill is released by the committee, it is put on a calendar to be debated, or amended, and ultimately voted on. Bills

pass the House by a simple majority (at least 218 of 435 members voting in the affirmative). The same is true of bills in

_**Air National Guard Commander's Legal Deskbook**_

134

_**Chapter 2, Authority of Commander**_

_**Section 2-10 Legislative Process**_

_**Page 2**_

the Senate (at least 51 of the 100 senators voting must vote for the measure). The primary difference between the Senate

and the House of Representatives is the Senate's filibuster rule, which until recently allowed a minority party to prevent

a vote on a bill absent the consent of 60 senators. In 2013, the Senate changed its rules to limit filibuster, particularly filibuster on executive branch nominees and judicial nominees other than those nominated to the Supreme Court.

Once a bill passes one chamber, every amendment adopted by that chamber is included in an engrossed bill as passed.

This is the point at which a bill gains the formal appellation of "An Act," which signifies that it is the act of one body of the Congress, even though it is still commonly referred to as a bill.

An engrossed bill passed by one chamber of Congress is sent to the other, where the committee responsible for the bill

conducts its own study. If released from committee, the bill then comes up for a vote in the other chamber.

If the bill passes both the House and the Senate, a conference committee comprising House and Senate members iron

out any differences between the versions of the bill approved in the House and Senate. The bill resulting from the work

of this conference committee then returns to the House and Senate for a final vote, approving the conference commit-

tee's reconciliation of the two versions.

If both chambers of Congress agree to a bill identical in form, the Government Printing Office publishes the bill in a proc-

ess known as "enrolling." The enrolled bill is presented to the President for action. ("Every Bill which shall have passed

the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United

States." Art. I, Sec. 7, U.S. Const.) From enrollment, the President has 10 days, Sundays excluded, to sign or veto the en-

rolled bill. If the President fails to sign or veto the enrolled bill within this time, it becomes law as if he had signed it (unless Congressional adjournment prevents the President from returning the bill.) The "pocket veto" occurs when the Presi-

dent does not return a bill to Congress during an adjournment. A bill vetoed by the President can still become the law of

the land if both chambers of Congress vote by a two-thirds majority to pass the bill. This is called passage over the objec-

tions of the President, or Congressional override.

If a bill is approved by the President, becomes law without Presidential signature, or achieves Congressional override,

the bill is given a public law number and is paginated to be included in the United States Statutes at Large. The Statutes

at Large is the official source for the laws and resolutions passed by Congress.

**STATE LEGISLATIVE PROCESS**

Regarding the state system, the process is very similar to the federal system, but with some differences in terminology,

methodology and procedure. Both authors are from Wisconsin and will rely primarily on the legislative process of Wis-

consin. Except for Nebraska, the same or similar process is employed in every state. As discussed above, a member of

either house may propose legislation. In Wisconsin, any bill that proposes to create, amend or repeal a state statute is

first sent to the Legislative Reference Bureau (LRB) where the bill is drafted. The member proposing the legislation gives

the LRB the gist of the bill and the LRB takes this information and drafts the language that becomes the bill. Once the

bill is drafted it can then be introduced into either house.

If any proposed bill has a fiscal component, that is if the bill will either increase or decrease state or local revenue or expenditures, then a "fiscal note" must accompany the bill to show both the short-range and long-range fiscal effects of the

legislation.

Once a bill has been drafted and a "fiscal note" prepared, a bill is ready to be introduced by a member of either house. A

bill's official introduction is called the First Reading. Once the bill has the First Reading, it is assigned to a standing committee for review. Standing committees are staffed by senate or assembly members who review legislation concerning a

specific area. Normally there are standing committees on a variety of interests such as finance, education and agriculture.

Like most states, Wisconsin has a standing committee concerning military affairs. Any bill concerning a military matter

_**Air National Guard Commander's Legal Deskbook**_

135

_**Chapter 2, Authority of Commander**_

_**Section 2-10 Legislative Process**_

_**Page 3**_

or one involving veterans' issues will be assigned to this standing committee. It is during committee that a bill is open

for debate. The committee is open to the public and any interested party can give their opinion in support or opposition

to the bill. After hearing debate, the standing committee votes on whether to recommend the bill for passage as origi-

nally introduced, with amendments, or be rejected.

Assuming a bill is recommended for passage, it is given a Second Reading. At the Second Reading, a bill is presented to

the Senate or Assembly to consider proposed amendments to the bill. An amendment can comprise simple changes or

can change or replace the entire bill. Once amendments are debated and either adopted or rejected, a bill is ready for the

Third Reading. At this stage the bill is put to a vote in one chamber. If the bill is passed, it is forwarded to the other

chamber to repeat the same process. Once approved by one chamber, a bill can be amended by the other chamber. If this

happens, the bill is sent back to the original house for consideration and a vote on the amended bill. Often, if there are

conflicting bills from each chamber, a conference committee will be formed with representatives from both chambers to

iron out differences between the two proposed bills. Ultimately, both chambers must vote to approve the bill before it

can be sent to the governor for signature.

Once a bill has been drafted and a "fiscal note" prepared, a bill is ready to be introduced by a member of either house. A

ill's official introduction is called the First Reading. Once the bill has the First Reading, it is assigned to a standing committee for review. Standing committees are staffed by senate or assembly members who review legislation

Once a bill reaches the governor's desk, the governor may sign the bill or veto the bill. In Wisconsin, the governor has

partial ("line item") veto powers over a bill involving appropriations and can veto words and numbers in such a bill. If

the bill does not have appropriation ramifications, the governor can either sign it or veto it. Finally, even if vetoed, a bill still can become law if both chambers override the governor's veto. This requires a two-thirds majority vote in each

chamber.

How a bill becomes law appears straightforward, but the process is often far from simple. It can be affected by political

party concerns, lobbying of special interests, fiscal issues, policy issues, and upcoming elections. For example, in the past 10 Wisconsin legislatures 1,600 bills were introduced, but only 20% passed. ( _State of Wisconsin 2011-2012 Blue Book_ **** at 251.) **** Passing a bill, even one supporting military members, veterans, and their families often faces a difficult battle.

_**KWIK NOTE: Understanding the legislative process can be very important when there is pending legislation that could affect**_

_**your unit.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Lautenberg Amendment

1-42

Montgomery G.I. Bill

4-6

Whistleblower Protection Act

5-9

Posse Comitatus

6-7

Model State Code of Military Justice

8-21

Freedom of Information Act

14-11

Privacy Act

14-12

Former Spouses' Protection Act

23-14

_**Air National Guard Commander's Legal Deskbook**_

136

**Chapter 3, Base Access, Conduct and Control**

**Table of Contents**

**Section**

3 - 1 Table of Contents

3 - 2 Access to Military Installations

3 - 3 Air Base Security Guards

3 - 4 Base Facilities Board

3 - 5 Base Security Council/Resource Protection Committee

3 - 6 Base Tours

3 - 7 Civilian Misconduct on Base

3 - 8 Civilian Warrants and Process - Service on Base

3 - 9 Commercial Solicitation Base

3 - 10 Day Care Centers

3 - 11 Barment

3 - 12 Leases and Armory Use Agreements

3 - 13 Open Houses and Free Speech

3 - 14 Pass and Registration

3 - 15 Possession of Privately Owned Firearms on Base

3 - 16 Smoking in Air National Guard Facilities

3 - 17 Use of Firing range by Local Police, Boy Scouts, and other Non-Military Persons or Groups

3 - 18 Weddings and Other Social Affairs on Base

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-2 Access to Military Installations - General Guidelines**_

_**Page 1**_

**Access to Military Installations – General Guidelines**

**Updated by Major Jeffrey Knickerbocker, May 2007**

**AUTHORITY** : AFI 31-101, _The Air Force Installation Security Program_ (1 Mar 03); AFI 35-101, _Public Affairs Policies and Procedures_ (29 Nov 05); AFI 31-101, ANGSUP1 (1 Mar 05); applicable state law. 

## INTRODUCTION

The installation commander exercises control over installation access subject to the provisions of applicable statutes,

regulations and case law. The commander's primary responsibilities are to protect and preserve order, and to safeguard

persons and property on the installation. Each installation/wing commander is authorized to grant or deny access to the

installation, and to exclude or remove persons whose presence is unauthorized.

This topic will highlight the general guidelines for the proper exercise of that authority regarding civilians on the base.

Other topics in this _Deskbook_ entitled " _BASE TOURS_ ," " _CIVILIAN WARRANTS AND PROCESS-SERVICE ON BASE_ ," " _BARMENT_ " and " _OPEN HOUSES AND FREE SPEECH_ " provide specific information regarding those subjects. This topic should be read in connection with those.

**GUIDELINES**

**Do Not Be Arbitrary or Capricious**

The commander must not act in an arbitrary or capricious manner in deciding questions of base access. "Arbitrary" or "capricious" means: to act on whim or caprice without a rational basis; inconsistent; unreasonable; or unpredictable. The

reasons for granting or denying access to any person or group need to be carefully thought out. The commander's action

must be reasonable in relation to his or her responsibilities to protect and preserve order, and to safeguard persons and

property on the installation. Commanders should coordinate with their Staff Judge Advocate and Public Affairs Officer.

**Be Neutral**

Commanders must be NEUTRAL and cannot favor one group over another. Commanders cannot become entangled with

ideological movements of any type. Allowing ideological expression on an installation may create a right of access for op-

posing parties. Some forms of ideological expressions are very clear, such as a speech by a political candidate. Other

forms of ideological expression are less clear, such as presentations by government contractors or historical displays.

**NO INHERENT RIGHT TO BASE ACCESS**

Individuals do not have an inherent right of access to a military installation.

An open house does not create a public right of access that would allow previously barred individuals on base. Once indi-

viduals are permitted on the installation, they do not have an automatic or blanket right to express ideological beliefs.

They are subject to the reasonable restrictions and limitations established by the commander. However, the commander

should notify base visitors of these limitations, through handouts or letters given to them either at the gate or through a

specific military member who will be with or responsible for the group on base.

**Permissible Limitations**

Commanders may impose limitations on installation access to:

_**Air National Guard Commander's Legal Deskbook**_

138

_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-2 Access to Military Installations - General Guidelines**_

_**Page 2**_

1. Exclude individuals previously barred;

2. Limit the "open" areas of the base;

3. Limit the size of the group;

4. Limit the date and/or time of visitation;

5. Verify the identification of all visitors;

6. Search or restrict any hand-carried or transported items;

7. Provide transportation and/or escort service to all visitors;

8. Limit access depending on the interest of the group; and/or

9. Limit access based on mission and security considerations.

**DEVELOP COMMUNITY RELATIONS**

AFI 35-101 encourages commanders to develop a program to generate understanding, acceptance, and support of the

ANG role in national defense. Community relations projects and activities are a way of telling the public about the Air

National Guard and demonstrating that the base is a good neighbor. Open house and base tour programs are forms of

community relations projects. Open Houses should not be (or convey the image of) a fair, carnival, circus, civilian air

show, or display of commercial products, and should inspire patriotism and aid in military recruiting.

**DEVELOP WRITTEN POLICY**

Commanders should develop NEUTRAL regulations governing the matter of access to military installations, including

protest activities, demonstrations, open houses, and base tours. At a minimum, these regulations should:

1. Be impartially and objectively applied;

2. Accord equal treatment concerning base access to politically conservative and politically liberal groups;

3. Indicate that political activity on military installations is prohibited;

4. Provide notice to the public of prohibited activities, such as:

a. No entry into designated "keep out" or "off limits" or "Controlled or Restricted Areas";

b. No campaigning, distributing literature or conducting any demonstrations;

c. No commercial advertising or sales without prior written approval of the installation/wing commander;

d. No solicitation of money, even for charitable purposes, without the prior written approval of the

Installation/Wing Commander;

e. No purchasing, obtaining, possessing or consuming alcoholic beverages on the base by civilians under

21 years of age;

f. No driving or riding in a car on the base without a seatbelt; and

g. No carrying or transporting a loaded weapon, or having an unloaded weapon and ammunition in the

passenger compartment of visitors' vehicles;

5. Provide notice to the public that all applicable federal, state and local laws must be obeyed; and

6. Be enforced consistently, to the extent necessary to prevent the limited or prohibited activities.

**AFI 31-101 GUIDANCE**

AFI 31-101 provides additional guidance on base access. Normally, personnel possessing a valid military or civilian identi-

fication card are granted unescorted access. While as a basic policy commanders should avoid placing undue restrictions

on persons visiting the installation, controls are necessary for security purposes and to support the position that a mili-

tary base is not a public area.

_**KWIK-NOTE: Establish written guidelines and instructions for access to your installation for various reasons, and modify**_

_**or update them as necessary. Check state law requirements. Develop these guidelines, regulations, policy and instructions**_

_**with the help of your Staff Judge Advocate, Public Affairs Officer, Chief of Security Forces and other concerned base func-**_

_**tions.**_

_**Air National Guard Commander's Legal Deskbook**_

139

_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-2 Access to Military Installations - General Guidelines**_

_**Page 3**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Arrest By Civilian Authorities

8-6

Arrests Authorized by the ANG

8-7

Base Tours

3-6

Fundraising

7-2

Civilian Misconduct on Base

3-7

Civilian Warrants and Process - Service on Base

3-8

Community Relations Programs

6-4

Barment

3-11

Driving While Intoxicated and Other Offenses Involving Intoxication

8-17

Facilities - ANG

25-9

Fire Protection Jurisdiction

25-11

Installations Jointly or Solely Occupied by the ANG

25-12

Jurisdiction

2-5

Media Relations and the Public Affairs Office

14-8

Motor Vehicle Rules -- Military Bases

21-6

Open Houses and Free Speech

3-13

Personal Liability of Federal and State Officials

18-9

Political Activities

7-12

Commercial Solicitation on Base

3-9

Possession of Privately Owned Firearms on Base

3-15

Support of Non-Federal Entities

7-16

Suspension of Base Driving Privileges

21-7

Use of Firing Range by Local Police, Boy Scouts, and Other Non-Military Persons or Groups

3-17

Weddings and Other Social Affairs on Base

3-18

_**Air National Guard Commander's Legal Deskbook**_

140

_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-3 Air Base Security Guards**_

_**Page 1**_

**Air Base Security Guards**

**Updated by Major Jeffrey Knickerbocker, May 2007**

**AUTHORITY:** AFI 31-207, _Arming and Use of Force by Air Force Personnel_ (1 Sep 99); AFI 31-101, _Air Force Installation Security Program_ (1 Mar 03); 50 U.S.C. 797 (Internal Security Act of 1950); ANG/DOF Message, Re: AFI 31-101, 141410Z

May 01; applicable state law regarding "police" or "peace" officer status, permissible use of firearms and state firearms licensing requirements. 

## INTRODUCTION

The concept of providing physical security for Air Force resources through security police forces, as contained in AFI 31-

101, is applicable to the Air National Guard. Security forces may be made up of AGRs, technicians, traditional Guard

members, state contract guards, civilian contract guards, or contracted civilian police authorities. In addition to security guard personnel, the Air National Guard is authorized to employ a Base Resource Protection Team. The Team may be

made up of air technicians and AGRs to provide readily available personnel for protection of ANG facilities and federal

property during civil disturbances or other emergency situations that pose a threat to assigned resources. Technicians are

authorized to perform base defense duties in either their federal civil service status or in their ANG military status. Pro-

tection of federal property in the custody of the Air National Guard may also be provided by state contract security

guards in their civilian status.

**REQUIREMENTS AND AUTHORITY**

The arming of state contract guards while in the performance of on base duties is required and will be authorized under

AFI 31-207 ONLY AFTER the following conditions have been satisfied:

1. The guard has received training and indoctrination in accordance with AFI 31-207. Proof of training must be on file in

the office of either the air technician security supervisor or Chief, Security Forces; and

2. The guard has been authorized to bear firearms on base under AFI 31-207 by competent authority (installation/wing

commander).

In addition to federal regulations, state laws must also be complied with for the full and lawful use of Air Base Security

Guards, since state law may govern such factors as proper designation of these individuals as police, peace, or public

safety officers, lawful possession of firearms, and completion of any state required police training programs. For example,

state law may (or may not) authorize Air Base Security Guards to be police or peace officers when they are designated as

police or peace officers under military regulations promulgated by The Adjutant General and when performing their du-

ties as air base security guards pursuant to orders issued by appropriate military authority. Also there may be state man-

dated age limitations for police, peace, or public safety officers carrying firearms.

Continuing the example, state law may (or may not) exempt Air Base Security Guards from criminal liability for possess-

ing weapons when the Air Base Security Guards are duly authorized to possess the weapons by regulations issued by The

Adjutant General. Further, the Air Base Security Guards may also be required to complete a training program in areas of

laws of arrest, use of force, etc., prescribed by a local municipal police training council before the state military law or regulation will be implemented.

State law may also provide that pending completion of the training program; Air Base Security Guards do NOT have po-

lice or peace officer status. If such is the case, then under state law the powers of arrest and justifiable use of force of Air Base Security Guards acting in a nonmilitary status may be the same as for civilians. Their only protection from personal

civil liability may be any indemnification they have under state law from liability for performing duties within the scope

of their employment.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-3 Air Base Security Guards**_

_**Page 2**_

State law varies on these subjects. The foregoing examples have been given to acquaint you with the different considera-

tions you may encounter in connection with Air Base Security Guards. The important point is that full and lawful use of

your Air Base Security Guards most likely will depend upon compliance not only with the applicable AFIs and ANGIs,

but also with your state's laws and rules. Check these with your Staff Judge Advocate.

_**KWIK-NOTE: Air Base Security Guards must meet state statutory, regulatory and/or case law requirements to be protected**_

_**from liability while armed. You may wish to supplement this topic with an analysis of your state law requirements.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Access to Military Installations

3-2

AGR Program

11-4

Anti-Terrorist Matters

25-4

Arrests Authorized by the ANG

8-6

Base Security Council/Resource Protection Committee

3-5

Civilian Misconduct on Base

3-7

Deadly Force

8-18

Driving While Intoxicated and Other Offenses Involving Intoxication

8-17

Federal Government Property Furnished to the ANG

25-10

Indemnification Agreements

18-4

Jurisdiction

2-5

Lawsuits Against National Guard Personnel

18-6

Political Activities

7-12

Possession of Privately Owned Firearms on Base

3-15

Withdrawal of Authority to Bear Firearms

1-41

_**Air National Guard Commander's Legal Deskbook**_

142

_**Chapter 3, Base Access, Conduct, and Control**_

_**Section 3-4 Base Facilities Board**_

_**Page 1**_

**Base Facilities Board**

**Updated by Major Jeffrey Knickerbocker, Oct 2010**

**AUTHORITY** : ANGI 32-1003, _Facilities Board_ (FB) (1 January 2005)

**PURPOSE AND STRUCTURE**

The Base Facilities Board is established by the ANG installation commander. The primary responsibility of the FB is to

ensure that facilities and infrastructure are able to fully support the assigned missions. The FB consists of the following

voting and nonvoting members:

**Voting** :

Wing or installation/CC as the Board Chairperson.

Base Civil Engineer as the recorder.

Group commanders, and commanders of Geographically Separated Units (GSU) supported, if applicable.

**Nonvoting or advisory:**

Environmental Manager.

Assistant Base Civil Engineer.

Facility Manager.

Fire Chief.

Real Property Manager.

Safety Officer.

Finance Officer.

Communications Officer.

Security Officer.

Others as desired by the chairperson, ( _e.g.,_ commander of military organizations). Chairperson of the Facilities Board Working Group (FBWG).

Commander or designated representative of each Tenant organization (ANG or NON ANG).

Other agency advisory members: United States Property and Fiscal Office (USPFO) Contracting Officer.

The Board should meet when necessary, but working groups should be established to accomplish day-to-day liaisons

with civil engineering and be cognizant of facility requirements of the major functional areas.

**SCOPE**

The FB reviews, validates, and sets the priority order in which projects are to be designed and funded. This is the "Pro-

ject Priority List" and, as a minimum, will contain the current and next four fiscal years (FY) for Sustainment, Restora-

tion, and Modernization (SRM) projects. Military Construction (MILCON) projects can be projected out longer for MIL-

CON projects the priority list should include all validated projects. The integrated SRM priority list will show three lev-

els of projects; the locally approved and funded, locally approved and funded by ANG, Civil Engineer (ANG/CE), and

those requiring ANG/CE or higher approval and funding. The last two levels will be forwarded to ANG/CEP.

The following real property management actions must be presented annually, as a minimum, for board approval and

more often if needed. The attached calendar of major events will aid in scheduling the timing of the presentations:

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 3, Base Access, Conduct, and Control**_

_**Section 3-4 Base Facilities Board**_

_**Page 2**_

1. All proposed changes in facility use and the annual facility utilization versus requirements survey (ANG/CEP 920 Re-

port).

2. Proposed new host/tenant support agreements or changes to existing agreements affecting civil engineering resources.

3. Contractual services applicable to operation or maintenance of real property and buildings.

4. Proposed acquisition, disposal, in grant or out grant of real property.

5. Changes/renewals and expiration date of real estate agreements (lease, licenses, permit, easements, etc.).

6. Projects to be accomplished via Military Construction Cooperative Agreements (MCCA).

7. Building Disposal Programs (current FY plus three).

8. Temporary/Relocatable Facilities (how many, where sited, removal date).

9. Airfield waivers (how many, where, cost to remove each).

10. Explosive safety constraints (how many, where, cost to remove each).

11. Airport Joint Use Agreement expiration dates and actions during the renewal process.

12. Base master plan and/or space utilization studies.

13. Federal, state and locally required permits.

14. Facilities and projects "not in" compliance with AT/FP criteria.

15. Indefinite Delivery Indefinite Quantity (IDIQ) Architectural Engineering Design Contract, Military Task Order Con-

tracting and similar type contracts.

16. Fire Safety Deficiency Programs (how many of each, cost to fix, program year).

17. DESC Programs.

18. Tenant funded projects and programs, if applicable.

19. Installation Readiness Report.

20. Facility Change in use: The FB will approve all facility change in use. The FB will NOT approve a change in use in a

category code if the losing category code has a deficiency or the gaining category code has an overage of more than 10

percent of the minimum authorized space.

21. Siting approvals: the FB will approve all facility sitings to ensure compliance with the master plan and AT/FP stan-

dards as defined in the Unified Facilities Code (UFC).

22. If not accomplished in another meeting, ( _e.g._ , Financial Management Board) the Board should review and reconcile the Civil Engineer Program execution data by Program Element Code (PEC) and Element of Expense Investment Code

(EEIC) from two perspectives; (1) From BCE data base and (2) Base Financial Management (FM) database. This review

will be done at two required meetings or as often as necessary.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 3, Base Access, Conduct, and Control**_

_**Section 3-4 Base Facilities Board**_

_**Page 3**_

The BCE must prepare and maintain records of each meeting of the Board and send one copy to NGB/DEP. Commanders

should consult their Staff Judge Advocates for further guidance on the purpose and composition of the Board, as well as

specific inquiries regarding appropriate subjects for the Board to consider.

_**KWIK-NOTE: Installation Commanders should actively participate in meetings of the Base Facilities Board.**_

**RELATED TOPICS:**

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**SECTION**

Airport Joint Use Agreements

25-2

Architect and Engineer Services

25-5

Base Security Council/Resource Protection Committee

3-5

Border Clearance – Arrival of Aircraft from OCONUS

15-3

Civil Associations and Military Corporations

22-2

Construction at Armories

25-7

Contracting Pitfalls

25-8

Environmental Duties at Base Level

12-3

Preservation of Historic Properties

12-5

Facilities – ANG

25-9

Fire Protection Jurisdiction

25-11

Jurisdiction

2-5

Fraud, Waste and Abuse

16-7

Installations Jointly or Solely Occupied by the ANG

25-12

Jurisdiction

2-5

Leases and Armory Use Agreements

3-12

Morale, Welfare and Recreation (MWR) Programs, Activities and Facilities

22-4

Quarters

25-16

Real Property – Acquisition and Retention

25-17

United States Property and Fiscal Officer (USP & FO)

25-20

Weddings and Other Social Affairs on Base

3-18

**CALENDAR OF EVENTS**

**OCTOBER**

1. Facility Investment Metric (FIM) – Submission due at ANG/CEP.

2. Installation Readiness Report – Call letter sent to Bases, report due to ANG/CEP in November.

3. Temporary Facility Report – Call letter sent to Bases, report due to ANG/CEP November.

**NOVEMBER**

1. Installation Readiness Report –Due to ANG/CEP.

2. Airfield Waivers – Call letter sent to Bases, report due to ANG/CEP in February.

**DECEMBER**

1. MILCON - Base validates out-year MILCON priorities for Future Years Defense Plan (FYDP).

2. DESC - Due at ANG/CEP.

3. McKinney Homeless Quarter Report – Due to ANG/CEP.

4. ANG/CEP 920 report – Sent to the Bases for confirmation.

**JANUARY**

1. SRM- Call Letters sent to Bases for final FB validated and prioritized FY+ 2 project list and draft FY+3 project list.

Submissions are due at ANG/CEP in April.

2. Airfield Waivers –Due to ANG/CEP.

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_**Chapter 3, Base Access, Conduct, and Control**_

_**Section 3-4 Base Facilities Board**_

_**Page 4**_

**FEBRUARY**

None

**MARCH**

1. SRM - Wings review their candidate Year-End (Y-E) and Advanced Procurement Program (APP) projects.

2. Demolition Program Report - Due to ANG/CEP.

3. McKinney Homeless Quarter Report – Due to ANG/CEP.

**APRIL**

1. SRM - program due to ANG/CEP.

**MAY**

1. SRM – ANG, Civil Engineer Construction (ANG/CEC) issues authority to Wings to advertise YE and APP projects.

2. MILCON Economic Analysis – Call letters sent to Bases, due to ANG/CEP in July.

3. MILCON (President's Budget) Horror Stories – Call letters sent to Bases, due to ANG/CEP in July.

4. Defense Logistic Agency (DLA) MILCON – Due at ANG/CEP.

**JUNE**

1. SRM – Review all validated Year-End and APP projects and Base Contracting end of year contracting policy.

2. McKinney Homeless Quarter Report – Due to ANG/CEP.

3. Energy Conservation Investment Program (ECIP) – Call letters sent to Bases, due to ANG/CEP in July.

**JULY**

1. MILCON - Base develops out-year MILCON priorities for Future Years Defense Plan (FYDP) List.

2. Master Plan Tabs Update – review tabs for needed updates.

3. MILCON Economic Analysis –Due to ANG/CEP.

4. MILCON Horror Stories– due to ANG/CEP in July.

5. Energy Conservation Investment Program (ECIP) – due to ANG/CEP.

6. SRM – the entry of all validated Year-End and APP projects into ACES complete.

7. Defense Logistic Agency (DLA) MILCON – Call letter sent to Bases, due to ANG/CEP in September.

**AUGUST**

None.

**SEPTEMBER**

1. SRM - All current FY funded requirements must be obligated by 15 September.

2. Demolition Program Report – Due to ANG/CEP.

3. McKinney Homeless Quarter Report – Due at ANG/CEP.

4. Facility Investment Metric (FIM) - Call Letter sent to Bases. CE's electronic project database must be updated with FB

validated FIM ratings, priorities, and FY of planned execution for FIM. Report due in October.

5. Master Plan Tabs Update – update tabs and annotate review.

6. DD Form 1390, Military Construction Program - Call letter sent to Bases, due to ANG/CEP in August.

7. MILCON President's Budget – ANG/CEP submits to Air Staff.

8. USAF 7115 Report – Due.

9. DESC - Call Letter sent to Bases for FY+1 and draft FY+2 Fuels Maintenance, Repair and Environmental (MR&E) pro-

jects. Submission is due at ANG/CEP in December.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-5 Installation Security Council**_

_**Page 1**_

**Installation Security Council**

**Updated by Major Jeffrey Knickerbocker, May 2007**

**AUTHORITY:** AFI 31-101, _The Air Force Installation Security Program_ (1 Mar 03); AFI 31-101, ANGSUP1 (1 Mar 05). 

## INTRODUCTION

AFI 31-101 and AFI 31-101, ANGSUP 1 establish the requirement for the installation commander to establish an installa-

tion security council.

**THE INSTALLATION SECURITY COUNCIL**

The Installation Security Council (ISC) is charged with recommending policy to the installation/wing commander on the

protection of resources, mainly from sabotage. The ISC is the single governing body responsible to the installation com-

mander for installation security. The ISC is responsible for implementing programs that include the protection of person-

nel (Antiterrorism/Force Protection) and protection of Level 1, 2, 3, and 4 resources (anything from critical weapons sys-

tems and aircraft to funds, weapons, explosives, and spare parts).

At ANG installations the senior full-time security forces representative assigned to the unit is the primary advisor for the installation security program. This position ensures the full-time continuity of the force protection mission.

**GENERALLY**

The ISC is responsible for determining what the risks are in their respective areas, and for developing plans to reduce the

risk and protect the resources and personnel involved. The ISC must meet at least semi-annually.

**KWIK-NOTE: The Council should be actively responsive to the unit's needs.**

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Access to Military Installations

3-2

Air Base Security Guards

3-3

Anti-Terrorist Matters

25-4

Base Tours

3-6

Civilian Warrants and Process - Service on Base

3-8

Claims

18-2

Jurisdiction

2-5

Open Houses and Free Speech

3-13

Surveillance

16-12

Morale, Welfare and Recreation (MWR) Programs, Activities and Facilities

22-4

_**Air National Guard Commander's Legal Deskbook**_

147

_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-6 Base Tours**_

_**Page 1**_

**Base Tours**

**Updated by Major Jeffrey Knickerbocker, May 2007**

**AUTHORITY** : AFI 31-101, _The Air Force Installation Security Program_ (1 Mar 03); AFI 35-101, P _ublic Affairs Policies and Procedures_ (29 Nov 05); AFI 31-101_ANGSUP1 (1 Mar 05); applicable state law. 

## INTRODUCTION

Tours of a military installation are a recognized community relations activity, and are generally handled by the wing Pub-

lic Affairs office. Tours should be tailored to coincide with the interests of different groups. Some bases have one set of

rules for family tours and define "family," and another set of rules for all other tours. That is your option. Protection of classified information and equipment must be a matter of prime concern in any tour program. AFI 35-101 provides a detailed checklist for the wing Public Affairs office to use in preparing for a base tour (Figure 8.2).

**COMMANDER'S DUTIES**

In establishing a program for installation tours, the commander must be neutral. The commander may not become entan-

gled with an ideological movement or offer support to one movement and not another.

**COMMANDERS MAY REGULATE BASE TOURS**

The commander may impose limitations on installation access during tours. However, commanders must be consistent

in their actions. The commander may consider the following matters in limiting access:

**Mission requirements** (including availability of facilities and personnel and security concerns):

1. Do we need to cancel or reschedule training missions to permit the tour?

2. Is the tour scheduled during normal duty hours?

3. Do we have to reschedule mission functions at awkward hours for the time lost during the tour?

4. Are adequate personnel available to provide for security, tour guides, etc.?

5. Is the installation in an exercise or actual scenario requiring increased security requirements?

**Visitors for a Base Tour**

1. Currently barred individuals may be excluded and the size and makeup of the group may be limited (for example, no

more than 20 people, with none under 10 years of age).

2. Geographic access to the installation may be limited. You may provide transportation from the main gate or from a des-

ignated reception area or escort all vehicles and persons to limited areas only.

3. The time of tours may be limited; such as no weekend or holiday tours.

4. All visitors may be required to provide proper identification. Identification may be required in advance to verify that

the individual has not previously been barred.

5. Visitors may be required to leave all packages at the gate or other designated location. If the security risk indicates,

people could be checked for weapons by a metal detector.

6. Photographs or recordings (audio or video) may be prohibited.

7. Do not allow a tour to become an intelligence gathering opportunity. When visitors ask questions, ensure answers do

not reveal protected information. Review the areas open to tours to ensure we are not revealing critical information.

**FOREIGN NATIONAL VISITORS**

Foreign nationals from non-communist countries may be given standard community relations base tours provided to

_**Air National Guard Commander's Legal Deskbook**_

148

_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-6 Base Tours**_

_**Page 2**_

U.S. citizens without approval from higher headquarters. In the event of unusual or questionable circumstances, case-by-

case approval must be requested through command channels and NGB/IA (DSN 327-1591)(Foreign Liaison Office) to

SAF/PAN and HQ USAF/CVAII (International Relations Division). Foreign nationals from communist countries may

NOT be given base tours without prior approval.

_**KWIK-NOTE: Your best protection in this area is to establish WRITTEN GUIDELINES for conducting base**_

_**tours. Also check state law requirements.**_

**RELATED TOPICS:**

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****

****

****

****

****

****

****

****

**SECTION**

Access to Military Installations

3-2

Base Security Council/Resource Protection Committee

3-5

Civilian Misconduct on Base

3-7

Classified Material

14-2

Community Relations Programs

6-4

Barment

3-11

Facilities - ANG

25-9

Installations Jointly or Solely Occupied by the ANG

25-12

Jurisdiction

2-5

Media Relations and the Public Affairs Office

14-8

Motor Vehicle Rules -- Military Bases

21-6

Open Houses and Free Speech

3-13

Relationship with Other Military Components

11-6

_**Air National Guard Commander's Legal Deskbook**_

149

_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-07 Civilian Misconduct on Base**_

_**Page 1**_

**Civilian Misconduct on Base**

**Updated by Captain Elaina A. DeNolf, January 2018**

**AUTHORITY:** AFI 31-101, _Integrated Defense_ (6 July 2017); AFI 31-118, _Security Forces Standards and Procedures_ (5 March 2014); AFI 51-905, _Use of Magistrate Judges for Trial of Misdemeanors Committed by Civilians_ (30 September 2014). 

## INTRODUCTION

Although civilians in the CONUS are not subject to prosecution in the military justice system, they are still subject to a

wide variety of administrative actions and criminal prosecution in federal or state court. Both administrative actions and

criminal prosecution provide for effective control of civilians on Air National Guard installations.

**ADMINISTRATIVE ACTIONS**

Because installation commanders are charged with the responsibility for law and order on the installation, they have the

authority to take administrative action against those civilians (often family members) who jeopardize the safety of people

or property on the base. Command options in this area include:

Issuing warnings or letters of concern.

Revoking base privileges (including base driving, access to MWR facilities and BX/Commissary, and termination of base

housing).

3.Barment (sometimes called debarment). The installation commander can actually prohibit a civilian from entering any

part of the base. _See_ the topic in this _Deskbook_ entitled " _BARMENT_ " for further guidance in this area.

**CRIMINAL ACTIONS**

Civilians who violate federal law on Air Force installations, including assimilated state criminal laws applicable to federal reservations, may be prosecuted in U.S. district court or the U.S. magistrate court. The most common areas of prosecution involve shoplifting, drunk driving, all traffic offenses, and the wrongful use of military identification cards. Appropriate action depends upon the jurisdiction of the base and whether an existing Memorandum of Understanding exists with

local law enforcement. Four types of jurisdiction may exist.

**Exclusive Federal Jurisdiction**

Civilians may be prosecuted in federal magistrate court. This is a federal prosecution and a federal conviction. The magis-

trate system is particularly well-adapted to dispose of traffic and minor offense cases.

**Concurrent Jurisdiction**

Either federal court or state court may be the proper forum for prosecuting civilians. Several states are very possessive of their jurisdiction over juveniles. Some bases have negotiated memoranda of understanding with state juvenile authorities

to determine prosecution of such cases.

**Proprietary Jurisdiction**

The state retains the authority to prosecute civilian misconduct (involving only state crimes) occurring on the installa-

tion. Any civilian misconduct should be referred to the local authorities for prosecution.

_**Air National Guard Commander's Legal Deskbook**_

150

_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-07 Civilian Misconduct on Base**_

_**Page 2**_

**Partial Jurisdiction**

This is perhaps the most complicated of jurisdictional arrangements. In this situation, the state in which the military in-

stallation is located and the United States make agreements as to jurisdiction by dividing responsibility for legal matters.

_See_ the topic in this _Deskbook_ entitled " _JURISDICTION_ ," section 2-5, for further explanation of the different types of jurisdiction.

**BASE ACTION**

The Security Forces commander will establish local procedures for handling civilian offenders after working closely with

the legal office and local civilian authorities. To the greatest degree possible, let civilian authorities handle civilian arrests and detention. If local civil authorities are not present, military personnel may detain violators or trespassers. If conducting a custodial interrogation, advise suspects of the right against self-incrimination IAW the Fifth Amendment under the

U.S. Constitution. However, your specific state law should be researched and understood before taking action.

After the civilian has been removed from the base, it is important to cooperate with local authorities in the prosecution

of the offender who has committed federal or state civilian offenses on base. Make your personnel available for interview

sessions with the local police and prosecutors, and for any necessary court appearances. The needs of the mission are

paramount, but if there is a conflict where you both "need" the member concerned at the same time, your call to the civilian official should resolve it to your mutual satisfaction.

_**KWIK-NOTE: Develop memoranda of understanding with local law enforcement officials to deal with civilian misconduct on**_

_**the base. Understand the form of jurisdiction your installation is subject to for the proper handling of civilian misconduct.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Jurisdiction

2-5

Authority of Commander

2-7

Air Base Security Guards

3-3

Barment

3-11

Open Houses and Free Speech

3-13

Aid to Civilian Authorities

6-2

Arrest By Civilian Authorities

8-6

Arrests Authorized by the ANG

8-7

Advising Suspects of Their Rights

8-9

Inspections and Searches

8-16

Deadly Force

8-18

Motor Vehicle Rules -- Military Bases

21-6

Suspension of Base Driving Privileges

21-7

Installations Jointly or Solely Occupied by the ANG

25-12

_**Air National Guard Commander's Legal Deskbook**_

151

_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-8 Civilian Warrants and Process - Service on Base**_

_**Page 1**_

**Civilian Warrants and Process – Service on Base**

**Updated by Major Jeffrey Knickerbocker, May 2007**

**AUTHORITY:** Applicable state law; AFI 51-1001, _Delivery of Personnel to United States Civilian Authorities for Trial_ (20 Oct 06)(for reference only as it is only applicable to ANG in federal status). 

## INTRODUCTION

Although state and/or federal law enforcement authorities have jurisdiction over an ANG base for the purpose of execu-

tion of civil or criminal process, the installation commander may prescribe reasonable rules, dictated by military consid-

erations, for the entrance on the base of civilian officers executing warrants or other lawful process, for their identification, and for avoidance of undue interference with the accomplishment of the military mission. This is based on the In-

stallation commander's overall charge and control of the base.

**CIVILIAN WARRANTS**

An installation commander may deliver military members to civilian authorities or permit search and seizure activities

on the base pursuant to lawful civilian warrants.

**Arrest Warrants**

An arrest warrant is a written order of a court made on behalf of a state, or the United States, based upon a complaint

issued pursuant to statute and/or court rule, which commands a law enforcement officer to take a person into custody.

Members may be delivered to civilian authorities upon request when the request is accompanied by an arrest warrant or

when the requesting official represents that such a warrant has been issued. Delivery of military members to federal or

state civilian authorities should be accompanied by a form, signed by the official taking the member into custody, reciting

the authority for the arrest and indicating that the commander will be advised of the disposition of the charges and/or

notice of the member's release. Commanders should also request a copy of the warrant and the charges on which it is

based. ANG commanders have no authority to arrest one of their members on the authority of a civilian arrest warrant

unless state law provides otherwise. It is important to require proper positive identification of the law enforcement offi-

cer executing the warrant prior to allowing the arrest of the member from the installation.

**Search Warrants**

A search warrant is an order in writing issued by a judge or other magistrate, in the name of a state or the United States,

directed to a police officer, authorizing a search for and seizure of things criminally possessed or property intended for

use or used as the means of committing a crime. Civilian authorities conducting search activities on base pursuant to a

valid warrant should be accompanied at all times by one or more military escort personnel knowledgeable of the area be-

ing searched. Commanders should request a copy of the search warrant and an inventory of all items seized. The items

seized will likely be of no military value or unrelated to military activities. But if the item is military property, do not permit it to be removed from the base without permission from higher headquarters. DOD Classified information must be

protected from unauthorized access at all times. Only those individuals with a proper DOD Security Clearance and need

to know will ever have authorized access to classified information.

**PROCESS SERVERS**

"Process" is the means by which a court notifies individuals of, and enforces their obedience to, its orders. Typical kinds of process you will encounter are summonses and complaints or notices of petitions which indicate a lawsuit has begun,

and subpoenas, which command the subject of the subpoena to appear in court, with or without documents. Process

servers, in essence, deliver such notices. Process servers are rarely law enforcement personnel and do not function

_**Air National Guard Commander's Legal Deskbook**_

152

_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-8 Civilian Warrants and Process - Service on Base**_

_**Page 2**_

pursuant to warrants even though they sometimes refer to themselves as Officers of the Court. These individuals also

should not normally be granted unrestricted access to the base or to base personnel. A good practice when confronted

with a process server is to determine whether the person to be served is willing to voluntarily accept the process in-

volved. If process will be accepted voluntarily, you should keep the process server at the gate, your office or another ap-

propriate location and permit the member to go to the gate to receive the process there. If the member will not voluntar-

ily accept the process (and you have no authority to order the member to do so), deny installation access to the process

server and advise that service will have to be effected off-base after duty hours. To do otherwise presents an unnecessary

risk of disruption of normal base activities.

**MOTOR VEHICLE REPOSSESSORS**

Depending on the laws of your state, motor vehicle repossessors may or may not be operating pursuant to a lawful court

order (sometimes called a replevin order) when attempting to seize a vehicle on your installation. These individuals are

rarely law enforcement officials and they do not function pursuant to warrants. Given the inherent potential for disrup-

tion of both ANG members and their activities, motor vehicle repossessors normally should not be granted access to vehi-

cles on an installation without a valid court order, and then only under strict control of Security Forces Personnel.

**CONCLUSION**

In general, it is best to cooperate to the extent possible with civilian authorities in the execution of lawful, civil or criminal process, although you have no authority to "order" your member to accept service of the process. But your main concern is to minimize the disturbance to base activities. In cases of doubt, your Staff Judge Advocate or state headquarters

legal personnel should be contacted at once to render advice and assistance.

_**KWIK-NOTE: While you should not allow your base to be a "safe haven" for your members from service of valid civilian proc-**_

_**ess, you must not allow such service to disrupt your military activities. You must balance the two.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Access to Military Installations

3-2

Arrest By Civilian Authorities

8-6

Arrests Authorized by the ANG

8-7

Classified Material

14-2

Inspections and Searches

8-16

Installations Jointly or Solely Occupied by the ANG

25-12

Jurisdiction

2-5

Lawsuits Against National Guard Personnel

18-6

Subpoenas and Consensual Release of Records

14-6

_**Air National Guard Commander's Legal Deskbook**_

153

_**Chapter 3, Base Access, Conduct and Control Section**_

_**Section 3-9 Commercial Solicitation on Base**_

_**Page 1**_

**Commercial Solicitation on Base**

**Updated by Major Jeffrey Knickerbocker, May 2007**

**AUTHORITY:** DoD 5500.7-R, _Joint Ethics Regulation (JER)_ (30 Aug 93, C4, 6 Aug 98); AFI 36-2909, P _rofessional and Unprofessional Relationships_ (1 May 99)(paragraphs 3.7 and 5.1.5); AFI 34-223, _Private Organization (PO) Program_ ; applicable state law or regulation.

**COMMANDER'S AUTHORITY AND RESPONSIBILITY**

The installation commander has the primary responsibility of controlling commercial activities on the installation as well

as inherent authority to do so. Although the powers of an Air Force base commander are not clearly bestowed by regula-

tion on ANG installation commanders, and state law may be applicable, certain prohibitions may generally be enforced.

**PROHIBITED ACTIVITIES**

Typical activities a commander may PROHIBIT are:

1. Allowing solicitation of military personnel who are in a duty status;

2. Allowing solicitation in dormitory or BOQ common areas;

3. Supplying squadron rosters or lists for commercial solicitation;

4. Allowing solicitation by one military member, or the member's spouse, of another military member who is in a lower

grade;

5. Allowing unit facilities that have not been previously so designated to be used as a showroom or store for the sale of

goods or services;

6. Any representation which suggests or gives rise to the appearance that the Department of Defense or any of its compo-

nents sponsor the company, its agents or its goods or services, including but not limited to allowing solicitors to identify with your unit by using the title "Unit Advisor", etc.;

7. Allowing solicitations at mass formations or before "captive audiences;"

8. Offering unfair or deceptive inducements to purchase or trade;

9. Using any manipulative, deceptive, or fraudulent device, scheme, or artifice, including misleading advertising and sales

literature;

10. Representation and solicitation by DoD personnel for the sale of any type of insurance on a military installation; 11.

Use of an agent as a participant in any military sponsored insurance or orientation program;

12. Agents using titles such as "squadron insurance counselor;"

13. Assignment of desk space for an interview for other than a specific prearranged appointment;

14. Use of base bulletins announcing the presence of agents and their availability; and

15. Distribution of literature to persons other than the person being interviewed.

If the ANG unit is a tenant on an active duty installation, the ANG commander must coordinate with the active duty

installation/wing commander who retains primary responsibility for these types of activities.

**THINGS TO WATCH FOR**

If solicitors request the opportunity to solicit unit members, it should be cleared with the installation commander. The

solicitor should be duly licensed by the state and other applicable local licensing authorities, and the proposed activities must not violate federal, state or local laws. Since members of the unit are on duty for training for only short periods of

time during the month, the commander should be alert to solicitation of members in their off-duty status. While this con-

duct is difficult if not impossible to monitor, the morale of the unit can be harmed significantly if members use their

_**Air National Guard Commander's Legal Deskbook**_

154

_**Chapter 3, Base Access, Conduct and Control Section**_

_**3-9 Commercial Solicitation on Base**_

_**Page 2**_

National Guard status to coerce others for their personal gain. DoD personnel (which includes unit members) may no-

tact as a liaison for the solicitor, either directly or indirectly becoming the private company's agent, for purposes of on-

base commercial solicitation.

Unit members should be advised if they suspect that any solicitation violations are occurring on base, they should report

the information to their first sergeant, commander or security police. Likewise, any questions you may have about on-

base solicitation practices or any requests made to you concerning on-base commercial practices should be referred to

the Staff Judge Advocate.

The problems in this area include unit members using their Guard positions, or seeking to have those they know take

advantage of the unit member's Guard position, to make commercial solicitations on base. Even if the unit member may

not directly benefit or the solicitation is made to all unit members for a seemingly excellent product or service, the risks the installation commander runs by permitting this include having to permit other solicitors on base to avoid charges of

favoring one or more solicitors over another (which could lead to the base becoming a shopping mall), and later becom-

ing involved in a lawsuit if a unit member buys a defective product which the commander permitted to be sold on base.

**COMMON SITUATION**

A common and recurring situation at many bases involves the installation commander permitting various conveniences

on base primarily enjoyed by full-time unit members, but which also benefit all unit members. Such conveniences may

include private commercial vending machines and the mobile "coffee" truck. Many state laws grant installation commanders broad discretion in permitting activities on the base of which they are in charge and control. The problem here is to

have a method to select one of the sometimes many local businesses which would like to do business on the installation.

You may encounter oversight and control problems if you grant permission to every provider of similar goods or services

to do business on the installation. Conversely, charges of favoritism may be encountered when you select one business

among many. A selection method -- such as competitive bidding -- that is fair to all concerned, usually works.

In these situations, if your installation or unit has established a civil association or military corporation pursuant to your state's law, such entities, may, if allowed under your state law, be the ultimate recipient of any profits generated from

granting these businesses permission to solicit on the installation. Even though the Installation Commander is often the

head of such civil association or military corporation, care must be taken to strictly follow state law and all applicable

regulations. Close coordination with your Judge Advocate is strongly recommended.

_**KWIK-NOTE: This is a "hot" area, fraught with "appearance of impropriety" problems for commanders. Some solicitations**_

_**on base may be welcome, but recognize the factors to consider before approving them.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Access to Military Installations

3-2

Barment

3-11

Ethics

7-3

Installations Jointly or Solely Occupied by the ANG

25-12

Jurisdiction

2-5

Open Houses and Free Speech

3-13

_**Air National Guard Commander's Legal Deskbook**_

155

_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-10 Day Care Centers**_

_**Page 1**_

**Day Care Centers**

**Updated by Ms Sandra Mason & Mr Lou Proper, August 2007 **

**Maj Jeffrey M. Knickerbocker, May 2007**

**AUTHORITY:** AFPD 34-7, _Child Development Programs_ (4 Oct 93) (for reference only); AFI/ANG Sup 34-276, F _amily Child_ _Care Programs_ (1 Nov 99, 15 July 2007); applicable state law. 

## INTRODUCTION

Air National Guard members, whether full-time or part time, who have small children, frequently need the use of day

care centers or other facilities to care for their children while they are working. Commanders may want to accommodate

these members since the provision of these facilities benefits their members' welfare and may aid recruiting and reten-

tion.

Currently, however, there is no authorization for the Air National Guard to fund construction of child care facilities on

Air National Guard bases. While the active duty Air Force has specific regulations governing child care centers as well as

individual child care programs held in base housing, there is nothing similar available in the Air National Guard.

In absence of federal funding for a unit of the Air National Guard to construct day care facilities on an ANG base, there

are two alternatives where Guard members may enjoy the benefits of such facilities.

**PARTICIPATE IN AN EXISTING ACTIVE DUTY FACILITY**

AFI 34-276, which authorizes and governs the operation of child care centers on active duty Air Force installations, per-

mits reserve component members to use a base child development center during periods of scheduled UTAs when the

training is performed at that base.

Appropriate written agreements for ANG use of active duty child care facilities may be necessary. After you determine

the need for ANG use of these facilities based upon numbers of personnel and children and time of usage, there should

be coordination among the active duty base Commander, ANG Commander, and the Staff Judge Advocates of both.

**PARTICIPATE IN HOME COMMUNITY CARE**

AFI/ANG Sup 34-276, authorizes and governs the operation of the Home Community Care (HCC) in the Air National

Guard. As of this update, there are 14 installations participating in this federally funded program to provide child care to eligible ANG members during UTA's, RUTA's, SUTA's and Annual tour (2 weeks) (provided on a space available basis

only). Three more units are expected to be added during CY07. The ANG Services Division (NGB/A1S) provides over-

sight for this program.

**PARTICIPATE IN OPERATION MILITARY CHILD CARD**

Established in October 2004, OMCC is a DoD-funded child care subsidy program designed to assist ANG members with

the child care costs – in their communities, in state-licensed, off installation Family Child Care Homes. This program as-

sists all activated Air National Guard members, regardless of location or purpose of activation. The only stipulation is the ANG member must be deployed from his/her work unit.

Airmen seeking child care referral services should contact Child Care Aware at 1-800-424 2246 or via the web at

www.childcareaware.org.

_**Air National Guard Commander's Legal Deskbook**_

156

_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-10 Day Care Centers**_

_**Page 2**_

**ESTABLISH A NEW FACILITY WITH STATE OR LOCAL UNIT FUNDS - ISSUES**

If using a local active duty base's day care center is not an option, the other alternatives are to build and operate your

own facility, or convert an existing building on your ANG installation for use as a day care center. This is doable, but in-

volves resolving many potentially complex issues since there are no federal funds available.

First, you must determine the jurisdiction over the land on the base where you want to build, or over the existing build-

ing to be used. Most of the time, the state will have either concurrent or exclusive jurisdiction either because it owns,

leases or licenses the land and buildings. Obtain and review copies of applicable deeds, leases and licenses.

Second, assuming the state has at least some control over the land and building, you must, in coordination with your

Judge Advocate, research various state law requirements for establishing the child care facility.

Most, if not all states, through their department of social services, education or similar departments have licensing, application, permit and other requirements.

Third, the county or municipality where your base is located may also have requirements for building or operating such a

facility. Most likely before you may construct any building or convert an existing building where structural work is neces-

sary, your state, county or municipal government may require plans and specifications to obtain a building permit, as

well as requiring an inspection once the facility is constructed, before the government will permit occupancy of the facil-

ity for its intended use.

**RECENT AND HISTORICAL DEVELOPMENTS**

In 2000, the Director of the ANG chartered an Integrated Process Team to study the need for childcare for ANG mem-

bers. As a result of that IPT, two test programs were created to assist ANG members. First, ANG members were author-

ized to use any active duty day care center or family day care provider on an active duty installation regardless of where

they perform their duty. It is still on a priority basis, however, many bases do have openings available. Additionally, there is some availability of "extended care" (off traditional hours) for shift and UTA periods at these bases.

The second day care test involved the contracting of off installation childcare services. NGB/A1S (Services) was the OPR

for this test, 13 ANG bases volunteered to participate and 5 were funded. Specific published criteria had to be followed

and funding continued to be an issue for this program. In 2005, however, the funding line became a reality and installa-

tions on the waiting list are being considered for participation as funds becomes available. Information concerning ANG

HCC Program is available on line. The Child Care website is on the NGB/A1S AF portal site.

**CONCLUSION**

The practical effect of all these requirements and issues continues to point to ANG HCC as the prime method to provide

regulated, quality child care to eligible ANG members. The above has been discussed so that you, as the commander,

know what is involved and can make an informed decision before you proceed.

_**KWIK-NOTE: Air National Guard units on state-controlled land are not exempt from state civilian law requirements in es-**_

_**tablishing and operating child care facilities.**_

**RELATED TOPICS:**

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****

****

****

****

****

****

**SECTION**

Jurisdiction

2-5

Base Facilities Board

3-4

Private Organizations and Unofficial Activities (CivilAssociations and Military Corporations)

22-2

Facilities – ANG

25-9

_**Air National Guard Commander's Legal Deskbook**_

157

_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-11 Barment**_

_**Page 1**_

**Barment**

**Updated by Major Jeffrey Knickerbocker, May 2007**

**AUTHORITY:** 18 U.S.C. 1382, _Entering Military, Naval, or Coast Guard Property_ ; AFI 35-101, _Public Affairs Policies and Procedures_ (29 Nov 05); AFI 31-101_ANGSUP1 (1 Mar 05); DoDD 3025.12, _Military Assistance for Civil Disturbances_ (4 Feb 94); _United States v. Albertini,_ 472 U.S. 675 (1985); _Greer v. Spock_ , 424 U.S. 828 (1976); _Cafeteria & Restaurant Workers Union v. _

_McElroy_ , 367 U.S. 886 (1961); OpJAGAF 1998/69, _Commander's Power to Delegate Debarment Authority_ (29 Jun 98); OpJAGAF 1997/25, _Barment_ (14 Feb 97); OpJAGAF 1984/60, _Authority of Base Commander in Air Reserve Technician Status_ (6 Nov 84); OpJAGAF 1982-60, _Barment/Installations/Command_ (22 Dec 82); applicable state law. 

## INTRODUCTION

Installation commanders are responsible for protecting personnel and property under their jurisdiction, and for maintain-

ing order on the installation to ensure the uninterrupted accomplishment of the military mission. Pursuant to AFI 31-

101, DoDD 3025.12, and applicable state law making the installation commander in charge and control of all activities

on the installation, each installation commander is authorized to grant or deny access to the installation, and to remove

or exclude persons whose presence is unauthorized. This denial of access, removal or exclusion is called "barment."

In addition to any authority granted to the installation commander under state law, ANG commanders may also have

authority under federal law to issue a barment order. ANG installations throughout the United States each have, as part

of their underlying real property chain of title, at least a leasehold interest in favor of the federal government as lessee.

(There may then be a subsequent license back to the state Adjutant General to operate the ANG of the state there.) This

leasehold interest is probably sufficient to bring the installation within the federal debarment authority statute, 18

U.S.C. 1382, and make it applicable as it is to Air Force bases. However, no court has yet decided this issue regarding an

ANG installation. Consequently, a barment order pertaining to an ANG installation may or may not be enforceable pursu-

ant to the criminal provisions of 18 U.S.C. 1382. See OpJAGAF 1997/25 (a leasehold interest by the United States is a

property interest sufficient to allow prosecution under the statute; optimal situation would combine a "clear exclusive

right of possession and a strong exercise of that right."). Note under 18 U.S.C. 1382, authority to bar an individual rests

with the Installation Commander and may not be delegated. The installation commander may be in technician status.

**CONSTITUTIONAL CONSIDERATIONS**

Installation commanders may reasonably act within their discretion and summarily bar anyone from a military installa-

tion by the issuance of a bar letter stating a sound reason for their action. The action must be consistent, evenhanded

and the commander remain neutral. A bar letter is effective upon delivery. This action provides sufficient constitutional

due process, which requires providing notice to the barred individual before action may be taken for failure to adhere to

the terms of the barment. The barred person does not have a right to be heard before the barment is effective.

However, the barment action may not be arbitrary, capricious, or discriminatory against a constitutionally protected

status (race, religious, sex, age, etc.). Also, at times, the commander's authority to bar individuals from an installation

becomes entangled in issues concerning constitutionally protected freedom of speech. Commanders cannot bar individu-

als from an installation for properly exercising the right of freedom of speech (for the commander's limited authority to

control the exercise of free speech on base, _see Brown v. Glines_ , 444 U.S. 348 (1980), AFI 51-903, _Dissident and Protest Activities_ (1 Feb 98) and AFI 31-101).

**JUDICIAL REVIEW OF DEBARMENTS**

Because of the commander's summary power to debar and the issues of arbitrariness, capriciousness, discrimination and

free speech, the decision to remove or exclude a person from the installation is subject to judicial review. The facts of

each debarment are examined on a case-by-case basis.

_**Air National Guard Commander's Legal Deskbook**_

158

_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-11 Barment**_

_**Page 2**_

**CONSEQUENCES OF WRONGFUL BARMENT**

A general policy to exclude a certain group or classification of individuals is probably arbitrary and capricious. Improper

or illegal barment may subject the commander to personal civil liability in a lawsuit alleging a constitutional tort based

on an alleged violation of the barred person's constitutional right to free speech. The best defense to such a lawsuit is a

properly articulated reason for the barment to show that it was not arbitrary, capricious or discriminatory.

**BARMENT PROCEDURES**

Barment procedures can be found in AFI 31-101.

_**KWIK-NOTE: Do not ORALLY bar anyone, and only take debarment action after consulting with your Staff Judge Advocate.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

**** Access to Military Installations

3-2

Air Base Security Guards

3-3

Arrests Authorized by the ANG

8-6

Base Tours

3-6

Civilian Misconduct on Base

3-7

Installations Jointly or Solely Occupied by the ANG

25-12

Judicial Review of Military Administrative Actions

18-5

Jurisdiction

2-5

Mailing or Delivery - Affidavits and Certificates of Service

24-10

Open Houses and Free Speech

3-13

Personal Liability of Federal and State Officials

18-9

Suspension of Base Driving Privileges

21-7

Commercial Solicitation on Base

3-9

Sources of Commander's Authority

2-7

_**Air National Guard Commander's Legal Deskbook**_

159

_**Chapter 3, Base Access, Conduct and Control Section**_

_**Section 3-12 Leases and Armory Use Agreements**_

_**Page 1**_

**Leases and Armory Use Agreements**

**Updated by Major Jeffrey Knickerbocker, Sep 2007**

**AUTHORITY:** ANGR 87-1, _Acquisition and Retention of Real Property_ (14 Nov 75); AFI 32-9003, _Granting_

_Temporary Use of Air Force Real Property_ (19 Aug 97); applicable state law.

**FEDERAL CONTROL OF ANG BASES**

ANG installations have underlying real estate authority totally different from Army National Guard (ARNG) armories.

ANG installations always have as their basis for federal construction authority maintenance of the significant real estate

interest in the federal (not state) government. Although there may be a license to the state to operate the state ANG at

the installation, this does not usually compromise the federal control. This is so regardless of the type of jurisdiction

(which is discussed in the topic in this _Deskbook_ entitled " _JURISDICTION_ ") that exists over the property.

As a consequence of this, ANG installations are generally not appropriate for leasing out or for other non-military use

agreements.

Questions on particular circumstances can be referred to NGB/A7C.

_**KWIK-NOTE: ANG bases may not generally be used by non-military groups under federal law. This topic should be supple-**_

_**mented by state law requirements that do not conflict with federal authority.**_

**RELATED TOPICS:**

**SECTION**

Base Facilities Board

3-4

Civic Organizations

6-3

Civil Associations and Military Corporations

22-2

Community Relations Programs

6-4

Day Care Centers

3-10

Federal Government Property Furnished to the ANG

25-10

Installations Jointly or Solely Occupied by the ANG

25-12

Jurisdiction

2-5

Morale, Welfare and Recreation (MWR) Programs, Activities and Facilities

22-3

Real Property – Acquisition and Retention

25-17

State ANG Headquarters

2-8

Use of Firing Range by Local Police, Boy Scouts and other Non-Military Persons or Groups

3-17

Weddings and Other Social Affairs On Base

3-18

_**Air National Guard Commander's Legal Deskbook**_

160

_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-13 Open Houses and Free Speech**_

_**Page 1**_

**Open Houses and Free Speech**

**Updated by Major Jeffrey Knickerbocker, September 2007**

**AUTHORITY:** AFI 31-101, _The Air Force Installation Security Program_ (1 Mar 03); AFI 35-101, _Public Affairs Policies and Procedures_ (29 Nov 05); AFI 31-101_ANGSUP1 (1 Mar 05); AFI 51-903, _Dissident and Protest Activities_ (1 Feb 98)(for reference only); applicable state law. 

## INTRODUCTION

An open house is a community relations activity which invites members of the public to see the operation of a military

installation. It is supportive of the military mission. It does not create a "public forum" where people can enter the installation and engage in protest or dissent activities, nor does the commander thereby relinquish control of the base. This

topic should be read in conjunction with the topic in this _Deskbook_ entitled " _FREEDOM OF EXPRESSION - RESTRICTIONS_

_ON MILITARY MEMBERS_ " (Section 14-09). Much of the legal justification for the installation commander's limitation on the expression of civilian visitors on the installation is contained in that topic.

**PURPOSE**

The purpose of an open house is to show the mission, equipment, facilities, people, skills, and professionalism required

to operate the Air National Guard. Open houses should not be (or convey the image of) a fair, carnival, circus, civilian air show, or display of commercial products. Opening dining halls, maintenance shops, classrooms, flight simulators, and

other unclassified facilities for public inspection is encouraged.

**AVOID CREATING A "PUBLIC FORUM"**

Even though an open house does not, as such, create a "public forum," you may unintentionally create one by your ac-

tions or inaction. This is the biggest danger with open houses, and you must be careful to avoid it. The rules for you to

follow, and pitfalls to avoid concern regulating expression on, and access to, the installation. They are:

**Expression**

1. The ANG must remain NEUTRAL in all matters of ideological expression;

2. The ANG cannot become entangled with ideological movements;

3. The ANG cannot influence public opinion by endorsing or supporting civilian groups whose ideologies it favors;

4. ALL partisan political activities must be excluded from the base; and

5. Prohibit distribution of all ideological leaflets, circulars, etc., on base.

**Access**

If an open house places no controls on the general public for access to the base or its facilities, the installation may be-

come a public forum because the lack of controls may show an intent to abandon the right to exclude civilian traffic

from, and to regulate expression on, the base.

**Practical Tips**

For every "open house," use a detailed operation plan reflecting concern for security, traffic flow, and personnel, as

_**Air National Guard Commander's Legal Deskbook**_

161

_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-13 Open Houses and Free Speech**_

_**Page 2**_

it is a clear expression of no intent to abandon control of access to the base, even temporarily. Some suggestions to pre-

vent a military installation from becoming a public forum (which by no means are all inclusive) are:

1. Use security police for crowd control;

2. Establish strict geographical limits for visitors;

3. Open the installation for a "Visitors Day" or "Family Day" rather than an "Open House." Make it specific;

4. Invite the public for a specific event, such as the Thunderbirds;

5. Hand out letters or leaflets at installation entry points which notify persons they are guests of the commander, the pur-

pose of the invitation and the limiting conditions on any other activity. Proposed limitations are:

a. No political activity;

b. No demonstrations or protest activity;

c. No leafleting;

d. No speeches;

e. No activity considered detrimental to good order and discipline of military personnel;

f. No activity considered detrimental to health, safety, and welfare of persons on the installation; and

g. Violators may be ejected from the base, and in appropriate cases, barred from future reentry;

6. Do not have booths providing information that could be considered "political" in nature. This may preclude such

groups as the VFW, MIA/KIA organizations, or other groups which lobby for a strong military; but if you do otherwise,

anti-military groups may also be permitted to have booths. Avoid this, and:

a. Review the planned display and handouts for all booths to determine if the activities are permissible;

b. Limit booths to those community organizations directly involved with installation activities (such as

scouting, sports, and volunteer organizations) or public safety concerns;

c. If DoD contractors are included, limit them to current contractors supplying factual information on those current prod-

ucts which play an integral role in the function of the military. No information relating to the company as a whole may

be provided. No information may be provided on future products;

d. Displays of various military organizations and their functions are permissible. Examples may include other units' re-

cruiters, and static displays of aircraft and other equipment; and

e. If an ideological group wants to sponsor a fund-raising booth selling a neutral product, approval will probably "open"

the installation to similar fund-raising efforts by other groups. Be careful here; you probably should avoid this; and

7. Review any leaflets or signs that will be displayed. This requires coordination with the displayer before the open

house. The point is to always ask to review any leaflets or signs that will be displayed by a group or person with a booth.

**CONCLUSION**

Conducting an open house involves a team effort with all commanders and key staff officers. Your Staff Judge Advocate

should be an integral part of the overall planning and coordination effort.

_**KWIK-NOTE: The key to not turning your installation into an open forum is whom you allow on base and what you permit**_

_**them to say. Be CAUTIOUS, be CONSISTENT, and be CONSERVATIVE.**_

_**Air National Guard Commander's Legal Deskbook**_

162

_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-13 Open Houses and Free Speech**_

_**Page 2**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Access to Military Installations

3-2

Community Relations Programs

6-4

Installations Jointly or Solely Occupied by the ANG

25-12

Jurisdiction

2-5

Media Relations and the Public Affairs Office

14-8

Motor Vehicle Rules -- Military Bases

21-6

Political Activities

7-12

Possession of Privately Owned Firearms on Base

3-15

Relationship with Other Military Components

11-6

Aerial Events, Flyovers, and Static Displays

13-2

Barment

3-11

Commercial Solicitation on Base

3-9

_**Air National Guard Commander's Legal Deskbook**_

163

_**Chapter 3, Base Access, Conduct and Control**_

_**Section 3-14 Pass and Registration**_

_**Page 1**_

**Pass and Registration**

**Updated by Major Jeffrey Knickerbocker, September 2007**

**AUTHORITY:** AFI 31-101, _The Air Force Installation Security Program_ (1 Mar 03); AFI 31-101_ANGSUP1 (1 Mar 05); AFI 36-3026(I), _Identification Cards for Members of the Uniformed Services, Their Eligible Family Members, and Other Eligible Personnel_ (20 Dec 02); applicable state law. 

## INTRODUCTION

The base Pass and Registration Office handles various matters ranging from personal identification cards and restricted

area badges to vehicle registration. See the topic V _EHICLE REGISTRATION_ in this _Deskbook_ for a discussion of vehicle registration procedures.

**ID CARDS**

Active Guard/Reserve (AGR) personnel and their dependents, as well as traditional Guard members and their depend-

ents are entitled to identification cards. The entitlements of each category of ID cards vary. Forms DD2S (ACT) and

DD2S (RES) are Armed Forces Identification Cards. Green cards are issued to both AGR personnel and traditional Guard

members. The member's current duty status (ACTIVE or GUARD) is indicated in the upper right-hand corner of the ID

card. Before the card can be issued, the Guard member must go to MPF to get an application. Only the personnel in MPF

can verify the information used to issue the card and an authorized signature must be on the application before the card

will be issued at the Pass and Registration Office.

DD Form 1173S, Dependent Identification Card. This tan card is authorized primarily for dependents of military person-

nel on Active Duty for over 30 days. Dependents of AGR personnel fit this category. The military member (in some cases

the dependent) must go to MPF to get the application and have the information verified before the card will be issued at

the Pass and Registration Office.

Air Reserve Forces Dependent Identification Card. This card is primarily for dependents of military personnel who are

not on Active Duty. Dependents of traditional Guard members fit this category. As with the other ID Cards, the applica-

tion must be picked up from, and information verified by, MPF personnel before the card will be issued at the Pass and

Registration Office. NOTE: At many ANG units, identification cards are issued by the MPF rather than by the Pass and

Registration office.

**RESTRICTED AREA BADGES**

Certain areas on base such as the flight line and command post may require badges for entry. These are specialized identi-

fication badges authorizing access into the restricted area. AFI 31-101 contains further instructions regarding the issu-

ance of restricted area badges.

_**KWIK-NOTE: Make sure all members and their dependents have the proper ID cards. Issue restricted area badges only to**_

_**these who need them.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Access to Military Installations - General Guidelines

3-2

Barment

3-11

Arrests Authorized by the ANG

8-7

ID Card Retrieval

24-9

License Plates

21-4

_**Air National Guard Commander's Legal Deskbook**_

164

_**Chapter 3, Base Access, Conduct, and Control**_

_**Section 3-15 Possession of Privately Owned Firearms on Base**_

_**Page 1**_

**Possession of Privately Owned Firearms on Base**

**Updated by Major Jeffrey Knickerbocker, Sep 2007**

**AUTHORITY:** AFI 31-101, _The Air Force Installation Security Program_ (1 Mar 03); AFI 31-101_ANGSUP1 (1 Mar 05); AFI 31-207, _Arming and Use of Force by Air Force Personnel_ (1 Sep 99); applicable state law and regulations.

**COMMAND AUTHORITY**

Installation commanders may ban the possession of privately-owned weapons on their installation by virtue of their in-

herent command authority over all base activities. Such a ban is often advisable, as problems involving privately-owned

firearms can quickly develop.

This is an area that should have applicable state laws and regulations. Many states' laws and regulations provide that this

prohibition of possession of firearms applies even though the person may have a state pistol permit or be a police or

peace officer otherwise authorized to possess firearms.

Air National Guard bases are secure facilities providing significant protection for the persons and property located within

their boundaries. Members requiring firearms for use during the course of their ANG duties, such as the security police,

will be issued them. There is no valid reason for anyone other than designated security police persons to possess a fire-

arm on base. The only exception to this might be state regulations authorizing the unit's marksmanship team members

to possess such weapons pursuant to competent written orders.

Commanders are advised to issue an appropriate base regulation or policy letter concerning a ban on privately-owned fire-

arms possessed or stored on base. Coordinate all efforts in this area with the Office of the Staff Judge Advocate and chief

of Security Police to ensure such a policy, if implemented, will be valid and enforceable.

_**KWIK-NOTE: Policy letters banning private firearms on base must be tailored to each commanders needs and discre-**_

_**tion, and must be consistent with applicable state law and regulations.**_

**RELATED TOPICS:**

**SECTION**

Sources of Commander's Authority

2-7

Air Base Security Guards

3-3

_**Air National Guard Commander's Legal Deskbook**_

165

_**Chapter 3, Base Access, Conduct, and Control**_

_**Section 3-16 Smoking in Air National Guard Facilities**_

_**Page 1**_

**Smoking in Air National Guard Facilities**

**Updated by Major Jeffrey Knickerbocker, September 2007**

**AUTHORITY:** DoD Directive 1010.10, _Health Promotion_ (22 Aug 03); DoDI 1010.15, _Smoke-Free DoD Facilities_ (2 Jan 01); AFI 40-102, _Tobacco Use in the Air Force_ (3 Jun 02); Executive Order 13058, _Protecting Federal Employees and the Public from Exposure to Tobacco Smoke in the Federal Workplace_ (9 Aug 97); applicable MAJCOM and local base supplements; applicable state law. 

## INTRODUCTION

Nonsmoking is the acceptable organizational norm. Excluding dormitory sleeping rooms and military family housing,

ANG personnel must not smoke in facilities except in "designated areas" non-smokers do not have to frequent.

**COMMANDER'S AUTHORITY AND GUIDELINES**

Unit commanders must identify any smoking areas for buildings under their control. Designated areas may include out-

door areas away from building entrances and exits and not near building air intake ducts. The areas should be reasonably

accessible to employees and provide some protection from the elements. Although DoD permits indoor smoking areas

under certain stringent conditions, the Air Force prohibits indoor smoking in all Air Force facilities except in specified

areas in recreation facilities designated by the installation commander. Even in recreational facilities, the smoking area

must be separate from common areas that non-smokers must use.

For civilian personnel purposes, the right to smoke is considered to be a "condition of employment." Therefore, installa-

tion commanders must not unilaterally change the rules on smoking (including designation of smoking areas) without

first satisfying all requisite collective bargaining obligations at the local level. The base Labor Management Relations Specialist (Civilian Personnel Office) and the SJA should be consulted for this purpose.

The installation commander has the authority and should, unless prohibited by a host-tenant agreement, apply the non-

smoking policy to all buildings on base, which include those occupied by other military components and civilians. Ad-

vance coordination with commanders of other military components and managers of civilians on base should eliminate

many, if not all, of the problems in implementing the new policy.

**IMPLEMENT NEW POLICY**

Any new command policy should be in writing with a reasonable advance effective date, giving reasons for the new pol-

icy, and should be widely publicized and disseminated within the base community.

DoD and Air Force directives are designed to create a social environment that supports abstinence and discourages use

of tobacco products, and Commanders at all levels must provide smokers with encouragement and professional assis-

tance in quitting. Education programs, including lectures, films, pamphlets and posters should be made available.

Should you have any questions or problems in this area, contact your Staff Judge Advocate.

_**KWIK-NOTE: Within applicable directives, installation commanders set the smoking policy for their base. Commanders**_

_**may and should exclude smoking inside of all buildings on base.**_

**RELATED TOPICS:**

**SECTION**

Installations Jointly or Solely Occupied by the ANG

25-12

Jurisdiction

2-5

Labor Relations

5-5

_**Air National Guard Commander's Legal Deskbook**_

166

_**Chapter 3, Base Access, Conduct, and Control**_

_**Section 3-17 Use of Firing Range by Local Police, Boys Scouts, and Other Non-Military Persons or Groups**_

_**Page 1**_

**Use of Firing Range by Local Police, Boy Scouts, and Other Non-Military Persons or**

**Groups**

**Updated by Major Jeffrey Knickerbocker, September 2007**

**AUTHORITY:** AFI 36-2226, _Combat Arms Program_ (26 Feb 03); ANGP 50-36, _A Guide To Unit Marksmanship Qualification_ _Training, Competition and Youth Outreach_ (2 Apr 84); applicable state law.

**AUTHORITY TO USE**

The use of Air Force ground weapons ranges for non-military purposes and by non-military users is permitted by AFI 36-

2226. Authority to use such ranges is granted by the Security Forces commander. Such use may be granted only during

those times when the ranges are not required for Air Force or other military needs. The users must follow good house-

keeping policies and procedures, including all clean-up duties. They may be held responsible for any damage done to the

premises from improper conduct or safety violations. Your state law and regulations may require or advise that a lease or

armory use agreement be executed by the user.

**ANG ASSISTANCE**

When feasible and within personnel limitations, ANG personnel should assist with these marksmanship activities. How-

ever, care must be taken that ANG personnel are properly qualified and competent to assist in such activities.

AFI 36-2226 does not speak specifically to use of Air National Guard ranges. It is recommended that any ANG personnel

assisting in such activities be placed on duty orders pursuant to Title 32 U.S. Code, Section 316, so as to place them

within the protection of the Federal Tort Claims Act. Should an incident occur, there is always the possibility of claims or lawsuits against the individual, the command, the state, and/or the United States.

**HOLD HARMLESS AGREEMENTS AND RELEASES**

Additionally, all civilian participants in firing range activities should be required to sign a Release of Liability and Hold Harmless Agreement similar to the ones in Attachments 1 and 2 to this topic prior to being allowed to participate. Such

agreements are helpful to warn the participants of potential dangers. However, the legal effect of such documents varies

from state to state; consequently, signing such a document is not "ironclad" protection against a claim or suit. The range premises themselves must be safe, and the supervision provided must be competent. Alcohol must be strictly prohibited.

**RULES FOR USE**

Commanders should publish written rules for appropriate use of their firing range which should be handed out and

signed by each individual user acknowledging its receipt; and commanders should maintain these signed copies for their

protection.

Your Judge Advocate should be consulted with respect to specific state law involving firearms or firing ranges, and to the

effect and appropriate wording of a Release of Liability and Hold Harmless Agreement.

_**KWIK-NOTE: Allowing use of your firing range by non-military persons or groups is encouraged as part of your Community**_

_**Relations program; but make sure you protect yourself and your unit by obtaining from each individual user signed Releases,**_

_**Hold Harmless Agreements and acknowledgments of receipt of copies of the rules of conduct at the range.**_

_**Air National Guard Commander's Legal Deskbook**_

167

_**Chapter 3, Base Access, Conduct, and Control**_

_**Section 3-17 Use of Firing Range by Local Police, Boys Scouts, and Other Non-Military Persons or Groups**_

_**Page 2**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Access to Military Installations – General Guidelines

3-2

Aid To Civilian Authorities

6-2

Air Base Security Guards

3-3

Barment

3-11

Civilian Misconduct on Base

3-7

Community Relations Programs

6-4

Indemnification Agreements

18-4

Lawsuits Against National Guard Personnel

18-6

Leases and Armory Use Agreements

3-12

Loan of Air Force Equipment

25-14

Medical and Dental Care to Persons Authorized

19-8

Personal Liability of Federal and State Officials

18-9

Relief from Civil Liability

18-10

Weddings and Other Social Affairs on Base

3-18

_**Air National Guard Commander's Legal Deskbook**_

168

_**Chapter 3, Base Access, Conduct, and Control**_

_**Section 3-17 Use of Firing Range by Local Police, Boys Scouts, and Other Non-Military Persons or Groups**_

_**Page 3**_

_Attachment 1_

**CONSENT AND HOLD HARMLESS AGREEMENT AND RELEASE OF LIABILITY (ADULT)**

The undersigned hereby requests to participate in the following activities of the ______________ National Guard, which

may be in conjunction with other agencies, organizations, or sponsors:

___________________________________________________________________

___________________________________________________________________

___________________________________________________________________

Date(s): ___________________________________

I understand the nature and scope of these activities.

I agree to not hold the United States of America, the State of ________________, the _________________ National Guard,

any other agency, organization, or sponsor of these activities, or their officers, members, agents, or employees, responsi-

ble for any harm or injury, from any cause, which may befall me related to or arising out of participation in these activi-

ties or any transportation related to said activities, and hereby release said entities and persons from any liability relating thereto. I further agree to indemnify and hold said entities and persons harmless from the claims or causes of action asserted by any other persons on my behalf, or in their own right, arising out of said participation, activities, or transportation. I similarly agree to hold said entities and persons harmless from the claims of other persons arising out of any acts

done by me. I agree that these conditions and agreements are binding on all my heirs, executors, administrators, repre-

sentatives, assignees, and successors in action.

I have read and understand the above, and willingly agree to said terms and conditions.

SIGNATURE:________________________________________

DATE:________________________

ADDRESS: __________________________________________

PHONE:_______________________

_**Air National Guard Commander's Legal Deskbook**_

169

_**Chapter 3, Base Access, Conduct, and Control**_

_**Section 3-17 Use of Firing Range by Local Police, Boys Scouts, and Other Non-Military Persons or Groups**_

_**Page 3**_

_Attachment 2_

**CONSENT AND HOLD HARMLESS AGREEMENT AND RELEASE OF LIABILITY (MINOR)**

The undersigned, parent(s) or legal guardian(s) of

____________________________________________, a minor child, do(es) hereby consent to the participation of said child

in the following activities of the __________________ National Guard, which may be in conjunction with other agencies,

organizations, or sponsors:

________________________________________________________________________________________________

________________________________________________________________________________________

Date(s): ______________________________________

I (We) understand the nature and scope of these activities.

Said child is to abide by all reasonable rules and requirements of appropriate cooperation and conduct. Upon violation

said child may be sent home at my (our) expense.

In the event of illness or injury, I (we) hereby consent to whatever medical treatment is deemed necessary by a licensed

physician, surgeon or dentist for said child, and I (we) agree to pay the expenses related thereto.

I (We) agree to not hold the United States of America, the State of _________________, the _________________ National

Guard, any other agency, organization, or sponsor of these activities, or their officers, members, agents, or employees,

responsible for any harm or injury, from any cause, which may befall said minor child related to or arising out of partici-

pation in these activities or any transportation related to said activities, and hereby release said entities and persons from any liability relating thereto. I (We) further agree to indemnify and hold said entities and persons harmless from the

claims or causes of action asserted by any other persons on behalf of said child, or in their own right, arising out of said participation, activities, or transportation. I (We) similarly agree to hold said entities and persons harmless from the

claims of other persons arising out of any acts of said minor child. I (We) agree that these conditions and agreements are

binding on all my (our) heirs, executors, administrators, representatives, assignees, and successors in action.

I (We) have read and understand the above, and willingly agree to said terms and conditions.

SIGNATURE:_________________________________________

DATE:______________________

SIGNATURE:_________________________________________

DATE:________________________

ADDRESS: ___________________________________________

PHONE:_______________________ _****_

_**Air National Guard Commander's Legal Deskbook**_

170

_**Chapter 3, Base Access, Conduct, and Control**_

_**Section 3-18 Weddings and Other Social Affairs on Base**_

_**Page 1**_

**Weddings and Other Social Affairs on Base**

**Updated by Major Jeffrey Knickerbocker, September 2007**

**AUTHORITY:** AFI 52-101, _Planning and Organizing_ (1 May 01); ANGI 34-121, _Dining Social Club Organizations,_ (1 Sep 2005); AFI 32-9003, _Granting Temporary Use of Air Force Real Property_ (19 Aug 97;) ANGR 87-1, _Acquisition and Retention of_ _Real Property_ (14 Nov 75); OpJAGAF 1982/55, _Military Personnel Sponsored Weddings of Non-Dependent Children_ (29 Nov 82); OpJAGAF 1983/92, _Weddings_ (22 Nov 83); applicable state law and regulations.

**PERFORMANCE OF CEREMONY**

**** ANG Chaplains may perform wedding ceremonies for ANG members and their immediate family, provided they are quali-

fied to do so under state law. All state requirements to contract a marriage must be met.

**USE OF FACILITIES**

ANG chapel facilities, if any, may be used for such a wedding. Because few ANG installations have a formal chapel, and

other space is normally utilized for chapel services, this space could be similarly used for the chaplain-officiated wedding.

However, the further use of installation facilities on a rental basis is probably not authorized. This is because all ANG

installations (as contrasted with ARNG armories) are on land in which the federal government has the primary posses-

sory interest. Federal law does not permit such rentals or leases as is common to armories, which are on state-owned

land.

A notable exception is that where an ANG social club has been properly created and operates on the ANG installation

with the Adjutant General's approval, it is generally permissible for the social club's governing body to allow a member's

wedding reception to be held at the social club's location if such is within the scope of its by-laws or rules, and is consistent with state law. This is not a rental from the unit or the installation, but rather an event sanctioned by the social

club.

If the event is permissible, closely coordinate with your Staff Judge Advocate for appropriate releases and hold harmless

agreements, similar to that in Attachment 1 to the topic in this _Deskbook_ entitled " _USE OF FIRING RANGE BY LOCAL POLICE, BOY SCOUTS, AND OTHER NON-MILITARY PERSONS OR GROUPS."_

Questions about a particular planned event and allowable use of ANG facilities may be addressed to NGB/A7C.

_**KWIK-NOTE: Scrutinize requests to use base facilities for non-unit social functions to ensure compliance with federal, and**_

_**state law requirements. To this end, you may wish to supplement this topic with applicable state law.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Arrests Authorized by the ANG

8-6

Civil Associations and Military Corporations

22-2

Civilian Misconduct on Base

3-7

Claims

18-2

Feres Doctrine

18-3

Indemnification Agreements

18-4

Inspections and Searches

8-16

Jurisdiction

2-5

Lawsuits Against National Guard Personnel

18-6

Leases and Armory Use Agreements

3-12

_**Air National Guard Commander's Legal Deskbook**_

171

**Chapter 4, Benefits**

**Table of Contents**

**Section**

4 - 1 Table of Contents

4 - 2 Benefits

4 - 3 TRICARE/TRICARE Reserve Select

4 - 4 Disability and Payment for Healthcare Treatment of ANG Members

4 - 5 **DELETED** (Continued Health Care Benefit Program)

4 - 6 Education Benefits

4 - 7 Reduced Retirement Age

4 - 8 Thrift Savings Plan

4 - 9 ANG Veteran and Casualty Benefits

4 - 9(a)ANG Veteran and Casualty Benefits Chart

_**Air National Guard Commander's Legal Deskbook**_

172

_**Chapter 4, Benefits**_

_**Section 4-2 Benefits**_

_**Page 1**_

**Benefits**

**Updated by Lt Col Mark C. Hansen, January 2016**

**AUTHORITY** : _See_ Air Reserve Personnel Center (ARPC) Fact Sheets. 

## INTRODUCTION

The spectrum of benefits for which Air National Guard members are eligible significantly increased after 11 September

2001. The recent conflicts in Iraq and Afghanistan saw benefits employed both as a recruitment/ retention tool, and also

as a matter of equity. Guardsmen deployed in increasing numbers on multiple tours, so it seemed imperative to treat the

reserve components on a similar scale with that of the active duty and its corresponding benefits. It was not that long

ago when members of the Air and Army National Guard were issued military identification cards substantially different

in color so as to denote the airman/ soldier as a member of a reserve component, with essentially different reserve com-

ponent benefits. Throughout the conflicts in Iraq and Afghanistan, the interoperability of the National Guard, and the

movement to a Total Force, the reserve component has enjoyed an expansion of benefits.

However, all entitlements can be highly technical as to whom qualifies and who does not. Also, some benefits are consid-

ered "War Time" benefits and may not continue on in the same form as of this writing. The purpose of this section is to

create awareness as to the existence of benefits for which Air National Guardsman may be entitled during service and

upon retirement, and to direct them to the most updated benefit information.

**ARPC FACT SHEETS**

The ARPC annually publishes a series of "Fact Sheets" explaining the current status of the following:

Veterans Benefits TRICARE & DEERS

Space-A Travel

Age 60 Retirement Benefits Assignments

Point Credit Retired Reserve

Claims for Service Credit

Reserve Component Survivor Benefit Plan

SGLI &VGLI Insurance

Retirement Benefits - Air National Guard/Air Force Reserve Guard/Reserve Officer Promotions

Entitlements

Air National Guard/Air Force Reserve Survivor Benefits

Be advised that these handouts, and this section, are not to be considered an all-inclusive list of available benefits, nor to serve as a guarantee of entitlement to the listed benefits. ARPC fact sheets are non-technical guides; they are not designed to answer all legal questions concerning those benefits, but are an excellent source of information. The fact sheets

are updated annually. You may obtain the most recent versions of these fact sheets by contacting the ARPC public affairs

office at (303) 676-6515 or toll-free (800) 525-0102, or you may download the fact sheets from the ARPC webpage at

http://arpc.afrc.af.mil/pa/fact/factsheet.asp.

**WIDELY DISSEMINATE**

In addition to being a valuable tool for Recruiting and Retention, these handouts should be made available to all person-

nel at the Customer Service branch of your FSS. They can be locally reproduced, should be included in your Newcomer's

Briefing and Legal Assistance Program, and serve as the subject of base newspaper articles. Encourage unit members

with questions on the subjects covered in these handouts to contact your legal office for advice.

_**Air National Guard Commander's Legal Deskbook**_

173

_**Chapter 4, Benefits**_

_**Section 4-2 Benefits**_

_**Page 2**_

**CONCLUSION**

Some of the subjects of these handouts are also covered in specific topics in this _Deskbook_ as indicated in the Related Topics below. Likewise, being a member of the Air National Guard can entitle a member to benefits provided by states or

other local government entities. Other benefits of Guard membership, not in these handouts, are also listed below.

_**KWIK-NOTE: Widely disseminate ARPC Fact Sheets and develop similar ones based on applicable state-specific benefits.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Assignments

1-5

Enlistment and Reenlistment Bonus Programs

1-14

Newcomer's Briefing

1-22

TRICARE/TRICARE Reserve Select

4-3

Education Benefits

4-6

Payment For Healthcare Treatment of ANG Members

4-7

Veterans Benefits

4-8

AGR Program

11-4

Legal Assistance Program

17-8

Civilian Employment and Guard Membership

23-8

Quarters

25-16

Space-Available Travel Aboard Military Aircraft

27-7

_**Air National Guard Commander's Legal Deskbook**_

174

_**Chapter 4, Benefits**_

_**Section 4-3 TRICARE/TRICARE Reserve Select**_

_**Page 1**_

**TRICARE/TRICARE Reserve Select**

**Updated by Lt Col Mark C. Hansen, January 2016**

## INTRODUCTION

As of this writing, all Americans are required to purchase and/or maintain minimum essential health insurance under

the Affordable Care Act. The fields of civilian and military health care are rapidly changing for active members and re-

serve members. A fundamental military healthcare program remains: All members and retired members of the military

are eligible for health care through at least one of three facets of TRICARE.

**TRICARE**

TRICARE is the DOD's regionally managed health care program for airmen and their families. Those eligible for TRI-

CARE can choose from three options: TRICARE Prime, TRICARE Extra and TRICARE Standard. Information on these

options is available on the TRICARE website at www.tricare.mil.  This site also provides eligibility information as well as the most current details on TRICARE entitlements and eligibility.

TRICARE Prime is a managed-care available option available in Prime Service Areas. Enrollment is required and some

beneficiaries may pay an enrollment fee. It also meets and exceeds minimum essential requirements as defined by the

Affordable Care Act. TRICARE Prime also includes TRICARE Prime remote. Notably, TRICARE Prime Remote is consid-

erably different from TRICARE Prime. To be eligible for TRICARE Prime Remote, the member must be active-duty mili-

tary (including activated Guardsmen) and live 50 miles from a military hospital or clinic. Other versions of TRICARE

Prime include TRICARE Prime Overseas and TRICARE Prime Remote Overseas.

**TRICARE ELIGIBILITY**

Eligibility for TRICARE Prime is limited to:

Active-Duty Service Members and their families

Retired Service Members and their families

Active/ Guard Reserve Members and their families

Non-Activated Guard and Reserve Members and their families who qualify for care under the Transitional Assistance

Management Program

Retired Guard/ Reserve Members at age 60 and their families (unless eligible for TRICARE for Life)

Survivors

Medal of Honor recipients and their families

Qualified former spouses

**TRICARE RESERVE SELECT**

One of the greatest changes to reserve component benefits is the advent of TRICARE Reserve Select (TRS). Historically,

reservists and their family members have been eligible for TRICARE only while the reservist was serving on active duty.

However, the National Defense Authorization Act (NDAA) of 2004 began to extend TRICARE eligibility to reservists

and their family members who were not on active duty. The first version of TRS covered only those either eligible for un-

employment compensation or ineligible for health care coverage from their civilian employers. At the same time, transi-

tional TRICARE benefits were extended to reservists for a period before and after activation.

To encourage enrollment, the NDAA of 2007 reduced the premium to reservists who currently qualify for TRS in tier 2

or tier 3 to the 28 percent of coverage cost paid by tier 1 enrollees. The 2007 NDAA also eliminated the service agree-

ment. Reservists who qualify for TRS will remain eligible for the duration of their service in the reserves. In other words,

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 4, Benefits**_

_**Section 4-3 TRICARE/TRICARE Reserve Select**_

_**Page 2**_

members of a reserve component are eligible for Affordable Care Act-compliant health insurance and the only obligations

of the member are to make the premium payments and remain in the Select Reserve.

One limiting fact for TRICARE Reserve Select is to be eligible, the member cannot be eligible for Federal Health Em-

ployee Benefits. This not only eliminates the Title 32 Technician force but Drill Status Guardsmen who are also Title 5

federal employees.

**CONCLUSION**

In the not distant past, Reserve Component members only started to receive TRICARE health care upon activation. Gen-

erally, eligible members may start receiving TRICARE Prime/ Prime Remote upon six months of deployment and up to

six months after deployment. However, TRICARE now offers healthcare to qualifying members for every aspect of their

military career including Traditional Drill Status Guardsman, Activated/ Deployed, "gray zone" retired (before age 60),

and retired after age 60. Likewise, there once was a "Continued Health Care Benefit Program" for transitioning military

members. That program has been subsumed by TRICARE and TRICARE's multiple programs.

For enrollment information and the most up-to-date benefit information, go to: http://www.tricare.mil/. Also, qualified dependents must be enrolled in DEERS to be eligible for coverage.

_**KWIK-NOTE: TRICARE benefits and beneficiaries have changed significantly in the past decade – ensure you and your air-**_

_**men have the most updated information.**_

**RELATED TOPICS:**

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**SECTION**

Newcomer's Briefing

1-22

Benefits

4-2

Disability of National Guard Members

4-4

Payment for Healthcare Treatment of ANG Members

4-7

Veterans Benefits

4-8

AGR Program

11-4

Civilian Employment and Guard Membership

23-8

_**Air National Guard Commander's Legal Deskbook**_

176

_**Chapter 4, Benefits**_

_**Section 4-4 Disability and Payment for Healthcare Treatment of ANG Members**_

_**Page 1**_

**Disability and Payment for Healthcare Treatment of ANG Members**

**By Lt Col Mark C. Hansen, January 2016**

**AUTHORITY:** 37 U.S.C. § 204; Air Force Instruction 36-2910, _Line of Duty (LOD) Determination, Medical Continuation_ _(MEDCON), and Incapacitation (INCAP) Pay_ (08 Oct 15); see applicable state laws.

**ENTITLEMENT TO BENEFITS**

When an ANG member sustains an injury or illness, the very first question should be whether that injury or illness oc-

curred in a duty status, and exactly what that status was at the time. (Active Duty for Training, Special Training, Profi-

ciency Training, Inactive Duty for training, and so on.) The next question should be whether that injury or illness was

aggravated by a member's military service. Line of duty questions are governed by AFI 36-2910. Please refer to the sec-

tion in this _Deskbook_ entitled, " _Line of Duty Determinations_ " for a further detailed discussion of the topic. Essentially, if a member is injured or incurs an illness in the line of duty the member may be eligible for medical treatment and other

benefits, including medical continuation orders.

**MEDICAL CONTINUATION ORDERS (MEDCON)**

The purpose of MEDCON is to authorize medical and dental care for members who incur or aggravate an injury, illness

or disease in the line of duty and to provide pay and allowances while they are being evaluated, treated for or recovering

from a service-connected injury, illness or disease. Air National Guard members may be entitled to MEDCON when they

are unable to perform military duties due to an injury, illness or disease incurred or aggravated while serving in a duty

status. MEDCON orders shall begin when the condition renders the member unable to perform military duties (not nec-

essarily when the injury or illness occurred, when the disease was diagnosed or when the member was released from ac-

tive duty). The entitlement to MEDCON will precede the Transition Assistance Management Program through TRICARE

health benefits.

**INCAPACITATION PAY (INCAP PAY)**

Members may be also eligible for Incapacitation (INCAP) Pay. The purpose of INCAP Pay is to authorize pay and allow-

ances (less any civilian earned income) to those members who are not able to perform military duties because of an in-

jury, illness or disease incurred or aggravated in the line of duty; or to provide pay and allowances to those members who

are able to perform military duties but experience a loss of earned income as a result of an injury, illness or disease in-

curred or aggravated in the line of duty.

Notably, a member is not entitled to disability separation or retirement if the disability was incurred during a period of

unauthorized absence or resulted from the member's misconduct. Depending on the facts, the type of separation or re-

tirement is set out in 10 U.S.C. § 1201: Regulars and Members on Active Duty for More Than 30 Days: Retirement; §

1202, Regulars and Members on Active Duty for More Than 30 Days: Temporary Disability Retired List; § 1203, Regulars

and Members on Active Duty for More Than 30 Days: Separation; § 1204, Members on Active Duty for 30 Days or Less

or on Inactive-Duty Training: Retirement; § 1206, Members on Active Duty for 30 Days or Less or on Inactive-Duty Train-

ing: Separation; and § 1207, Disability from Intentional Misconduct or Willful Neglect: Separation.

For those members sickened or injured as a result of their military obligations, the member may be eligible for Veterans

Administration Disability Compensation. Disability Compensation is a tax-free monetary benefit paid to veterans with

disabilities as the result of a disease or injury incurred or aggravated during active military service. Compensation may

also be paid for post-service disabilities considered related or secondary to disabilities occurring in service, and for disabilities presumed to be related to circumstances of military service, even though they may arise after service. The de-

grees of disability are also designed to compensate for considerable loss of working time from exacerbations or illnesses.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 4, Benefits**_

_**Section 4-4 Disability and Payment for Healthcare Treatment of ANG Members**_

_**Page 2**_

**WORKERS COMPENSATION**

National Guard members may perform duty in a non-federal status as a call-up by the governor. If a members suffers an

illness or an injury when called to state active duty, the federal line of duty process does not apply. States may have a

similar compensation plan for members of the National Guard/militia, or at the very least the member may be entitled to

compensation under the state's worker compensation provisions.

_**KWIK-NOTE: Air National Guard members disabled in a military status are entitled to certain benefits – enlist the assis-**_

_**tance of your base "benefits team" to secure those entitlements.**_

**RELATED TOPICS:**

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**SECTION**

Line of Duty Determinations

1-19

Report of Facts and Circumstances of Death

1-35

TRICARE/TRICARE Reserve Select

4-3

Disability of National Guard Members

4-4

Veterans Benefits

4-8

Active Duty - Air National Guard Members

11-2

Status of National Guard Members

11-7

Claims

18-2

Medical and Dental Care During Inactive Duty Training

19-8

Medical and Dental Care From Civilian Sources

19-9

Medical and Dental Care to Persons Authorized

19-10

Medical Evaluation (Profile Change)

19-11

Medical Evaluation Boards

19-12

_**Air National Guard Commander's Legal Deskbook**_

178

_**Chapter 4, Benefits**_

_**Section 4-6 Education Benefits**_

_**Page 1**_

**Education Benefits**

**Updated by Lt Col Mark C. Hansen, January 2016**

**AUTHORITY:** 38 CFR Part 21, sections 21.950 through 21.9770; 38 U.S.C. 501(a), 512, chapters. 33, 36; 10 U.S.C.

16131-16135. 

## INTRODUCTION

It could be argued that, along with the creation of TRICARE Reserve Select, the greatest benefit change affecting mem-

bers of the reserve component is expanded education benefits. Such benefits have long been used as a valuable recruit-

ment and retention tool in the military. Historically, the Montgomery G.I. Bill was the predominate tool, but other pro-

grams existed like the Reserve Educational Assistance Program (REAP) for which reserve component members could

qualify. In 2008, education benefits took a quantum leap forward with the creation of the Post-9/11-G.I. Bill. Part of the

transformative nature of the Post-9/11 G.I. Bill is the ability to transfer the benefit to a qualifying individual.

This chapter will deal with the four most common education benefits. However, some are considered "War Time" bene-

fits and may be altered or eliminated without notice.

It is also important to be aware that application for a specific education benefit may stop a member from making a claim

for an additional educational benefit. For individuals who qualify for multiple educational benefits, it is advisable to re-

search all options and apply to the most favorable benefit.

**POST-9/11 G.I. BILL**

The Post-9/11 G.I. Bill was enacted into law in 2008. It has been modified several times since and all the modifications

to date have increased the transformational nature of this benefit. Among the things that make the Post-9/11 G.I. Bill

unique is it is an education benefit designed to reward people currently serving, the benefits can be and are expected to

be applied for while serving, and the benefit can be transferred to a qualified spouse or qualified dependent.

To become eligible for the Post-9/11 G.I. Bill, a member needs to serve at least 90 aggregate days on active duty. This in-

cludes active service as a National Guard member under Title 32 for the purpose of organizing, administrating, recruit-

ing, instructing, or training and active service under Title 32 section 502(f) in response to a national emergency.

Once determined eligible a member can receive:

A Tuition and Fee payment (equal to that of the most expensive in-state public school) paid to your school on your be-

half, and also includes: A Monthly Housing Allowance (MHA) equal to: the basic allowance for housing (BAH) payable

for the zip code of your school to a military E-5 with dependents for students pursuing resident training, or one-half the

BAH national average for students training solely by distance learning, or the national average BAH for students pursu-

ing training at foreign schools, and a Books and Supplies Stipend of up to $1,000 per year. The MHA is not payable to

individuals on active duty or those enrolled at half time or less.

Generally, a member may receive up to 36 months of entitlement under the Post-9/11 G.I. Bill. A member will be eligible

for benefits for 15 years from the last period of active duty of at least 90 consecutive days. Another aspect which makes

the Post-9/11 G.I. Bill unique is the "sliding scale" aspect of the benefit. That is, a service member becomes eligible for a portion of 36 months of educational benefit upon completion of 90 days of active duty. The ratios are:

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 4, Benefits**_

_**Section 4-6 Education Benefits**_

_**Page 2**_

At least 90 days < 6 months: 40% of 36 months

At least 6 months < 12 months: 50% of 36 months

At least 12 months < 18 months: 60% of 36 months

At least 18 months < 24 months: 70% of 36 months

At least 24 months < 30 months: 80% of 36 months

At least 30 months < 36 months: 90% of 36 months

At least 30 continuous days and discharged due to service connected disability: 100% of 36 months At least 36 months:

100% of 36 months

**TRANSFERABILITY**

The Post-9/11 G.I. Bill is open to officers and enlisted, but perhaps the most unique aspect is the ability to transfer the

benefit. The transfer typically requires a service requirement of four years. Therefore it is important to not wait for retirement to apply for and transfer the benefit as the inability to serve four additional years may prevent transferability and/

or eligibility.

**POST-9/11 G.I. BILL YELLOW RIBBON PROGRAM**

The Post-9/11 G.I. Bill can cover all in-state tuition and fees at public degree-granting schools, but may not cover all private degree-granting schools and out-of-state tuition. The Yellow Ribbon Program provides additional support in those

situations. Institutions voluntarily enter into an agreement with the V.A. to fund uncovered charges. The V.A. matches

each dollar of unmet charges the institution agrees to contribute, up to the total cost of the tuition and fees.

For application details, go to http://www.benefits.va.gov/gibill/post911_gibill.asp.

**MONTGOMERY G.I. BILL**

With the creation of the Post-9/11 G.I. Bill, the Montgomery G.I. Bill has essentially bifurcated into an active version and a reserve version. For application details, go to http://www.benefits.va.gov/gibill/.

**MONTGOMERY G.I. BILL SELECTED RESERVE (MGIB-SR)**

The MGIB-SR program provides education and training benefits to eligible members of the Selected Reserve, including

the Army Reserve, Navy Reserve, Air Force Reserve, Marine Corps Reserve and Coast Guard Reserve, and the Army Na-

tional Guard and the Air National Guard. Eligibility for this program is determined by the Selected Reserve components

and the V.A. makes the payments.

**Available Benefits and Eligibility**

Eligible members may be entitled to receive up to 36 months of education benefits, and meet the following require-

ments:

Have a six-year obligation to serve in the Selected Reserve signed after June 30, 1985. Officers must have agreed to serve

six years in addition to the original obligation. For some types of training it is necessary to have a six-year commitment

that begins after Sept. 30, 1990.

Complete initial active duty for training (IADT).

Meet the requirement to receive a high school diploma or equivalency certificate before completing IADT. Participants

may not use 12 hours toward a college degree to meet this requirement.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 4, Benefits**_

_**Section 4-6 Education Benefits**_

_**Page 3**_

Remain in good standing while serving in an active Selected Reserve unit. Participants retain MGIB-SR eligibility if dis-

charged from Selected Reserve service due to a disability not caused by misconduct. The eligibility period may be ex-

tended if ordered to active duty.

Eligibility for the program normally ends the day one leaves the Selected Reserve.

**MONTGOMERY G.I. BILL ACTIVE DUTY (MGIB-AD)**

The MGIB-AD program - sometimes known as Chapter 30 - provides education benefits to Veterans and Service mem-

bers who have at least two years of active duty.

**RESERVE EDUCATIONAL ASSISTANCE PROGRAM (REAP)**

As of October 2015, REAP has been eliminated and members will no longer be eligible for benefits under REAP. Indeed,

REAP was less generous than the Post-9/11 G.I. Bill. The elimination of REAP is prospective so there still may be indi-

viduals who qualify for benefits under the program. If so, they should contact the V.A. which administers payments.

_**KWIK-NOTE: Widely disseminate this information to aid recruiting and retention. Assist members in applying for and re-**_

_**ceiving these benefits.**_

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Enlistment and Reenlistment Bonus Programs

1-14

Newcomers Briefing

1-22

Veterans Benefit

4-8

_**Air National Guard Commander's Legal Deskbook**_

181

_**Chapter 4, Benefits**_

_**Section 4-7 Reduced Retirement Age**_

_**Page 1**_

**Reduced Retirement Age**

**By Lt Col Mark C. Hansen, January 2016**

**AUTHORITY:** Title 10, U.S.C., Section 12731. 

## INTRODUCTION

Historically, members of the Air National Guard were required to wait until age 60 to start to collect their retirement

benefits. However, starting in January 2008, statutes were amended to allow service members credit to start collecting

retirement benefits early upon certain conditions. The modification reduces eligibility age for receipt of retired pay by

three months for each aggregate of 90 days of qualifying active-duty service within the fiscal year. Eligibility age cannot

be reduced below age 50.

**QUALIFYING SERVICE**

The key is the term, "qualifying service." Initially, Congress considered passing a law with a retroactive date to 11 Sep-

tember 2001 to include the "first responders" to the myriad exigencies for which Guardsmen deployed in great numbers

from that date. In effect, the law still excludes those who served from 9/11 through 31 Dec 2007, though multiple Con-

gressional bills have attempted to close the gap.

With this writing, qualifying service includes:

Involuntary mobilization - call or order to active duty under Title 10, U.S.C., Sections 688, 12301(a), 12302, 12304,

12305, 12406, or any other provision of law during a war or national emergency declared by the President or Congress.

Qualifying active duty may be combined between consecutive fiscal years beginning with the FY15/FY16 crossover.

Voluntary active duty - call or order to active duty under Title 10, U.S.C., Section 12301(d)). Includes MPA or RPA pro-

vided such active duty is performed under 12301(d).

Full-time National Guard duty under a call to active service authorized by the president or secretary of defense under Ti-

tle 32, U.S.C., Section 502(f) for purposes of responding to a national emergency declared by the president or a national

emergency supported by federal funds.

Members are eligible to receive all retired pay benefits ( _e.g.,_ commissary, base exchange, etc.) except:

Medical benefits are deferred until age 60.

Blue ID card (ID card will show airmen are not entitled to medical until age 60. At age 60, they will need to go to nearest

military facility to obtain another blue ID card bestowing the medical benefit).

Premiums for the Reserve Component Survivor Benefit Plan will be deducted from retired pay upon the age the member

starts drawing pay.

Members should contact their Force Support Squadron for application procedures, or apply through myPERS dashboard.

_**KWIK-NOTE: Reduced Retirement Age is an ongoing "War Time" benefit without expiration, but a gap in eligibility exists**_

_**from 9/11.**_

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 4, Benefits**_

_**Section 4-7 Reduced Retirement Age**_

_**Page 2**_

**RELATED TOPICS:**

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**SECTION**

Newcomers Briefing

1-22

Veterans Benefits

4-8

Active Duty - Air National Guard Members

11-2

Status of National Guard Members

11-7

_**Air National Guard Commander's Legal Deskbook**_

183

_**Chapter 4, Benefits**_

_**Section 4-8 Thrift Savings Plan**_

_**Page 1**_

**Thrift Savings Plan**

**By Lt Col Mark C. Hansen, January 2016**

**AUTHORITY:** 5 U.S. Code Subchapter III sections 8431 through 8440, _Thrift Savings Plan._

## INTRODUCTION

Members of the uniformed services became eligible to participate in the Thrift Savings Plan with the signing of the 2001

National Defense Authorization Act. Currently, the TSP is offered in both traditional pre-tax and Roth after-tax contribu-

tions. It is important for members to coordinate their savings strategy in view of the changing nature of military compen-

sation.

**PARTICIPATION**

Any member of the ANG, Ready Reserve, IMAs, unit reservists and participating members of the Individual Ready Re-

serve receiving pay are eligible to participate in the retirement and savings investment plan available to federal civilian

employees since 1987. The purpose of TSP is to provide a retirement income. TSP offers participants the same type of

savings and tax benefits many private corporations offer their employees under 401(k) plans.

TSP allows participants to save a portion of their pay in a special retirement account administered by the Federal Retire-

ment Thrift Investment Board.

TSP differs from the military retirement system in that participation in the TSP is optional and not automatic. Airmen

must sign up to participate. Airmen contribute from their own pay on a pre-tax basis. The amount they contribute and

the earnings attributable to their contributions belong to them.

The restrictions of having only two open seasons each year for civilian and military members to enroll, stop, resume or

change their contributions has ended. Members can now enroll or change selections at any time.

Public Law 108-469 eliminated restrictions on contribution elections tied to TSP open seasons. Any percentage of pay or

even a specific dollar amount per pay period can be chosen until reaching the IRS Elective Deferral Limit of $18,000, as

of this writing.

There is also a catch-up contribution allowed of an additional $6,000 for those individuals age 50 and older. Therefore, if

members turned age 50 or older in 2016, they can contribute up to $24,000 to the TSP. These figures are limited if con-

tributing to a separate 401(k) at a civilian job. The combination of all TSP, 401(k) and 403(b) accounts cannot exceed the

IRS Elective Deferral Limit of $18,000 ($24,000 if age 50 or older).

If serving in a combat zone and receiving a Combat Zone Tax Exemption, contributions to the TSP are still authorized.

Furthermore, these contributions do not count against the $18,000 Elective Deferral Limit ($24,000 if age 50). However,

they do count against the 415(c) Annual Additions Limit.

The Annual Additions Limit is set each year by the Internal Revenue Service and affects participants who contribute tax-

exempt earnings to the TSP while deployed in a designated combat zone. This limit remains at $51,000 for 2015. Contri-

butions made from pay attributable to the CZTE are tax exempt, and therefore do not count toward the Elective Deferral

Limit, $18,000 for 2015.

The Annual Additions Limit, however, includes all employee contributions to the TSP, both tax-exempt and tax-deferred,

and any agency contributions if a FERS Civil Servant. Over-50 catch-up contributions, up to $6,000, do not count toward

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 4, Benefits**_

_**Section 4-8 Thrift Savings Plan**_

_**Page 2**_

the Elective Deferral or the Annual Additions Limit. When a participant reaches the Annual Additions Limit in his or her

uniformed services account, the TSP cannot accept any more tax-exempt or tax-deferred contributions.

Enrollment forms and additional information are available via the TSP website at www.tsp.gov.  Reservists submit TSP

enrollment forms to their Reserve Pay Office for processing.

_**KWIK-NOTE: Military members became eligible for the Thrift Savings Plan in 2001, like many Reserve Component benefits.**_

_**Combat Zone Tax Exclusions make the TSP particularly unique among civilian tax-exempt and tax-deferred programs.**_

**RELATED TOPICS:**

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**SECTION**

Newcomers Briefing

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Veterans Benefits

4-8

Active Duty - Air National Guard Members

11-2

_**Air National Guard Commander's Legal Deskbook**_

185

_**Chapter 4, Benefits**_

_**Section 4-9 ANG Veteran and Casualty Benefits**_

_**Page 1**_

**ANG Veteran and Casualty Benefits**

**Updated by Lt Col Mark C. Hansen, January 2016**

**AUTHORITY:** AFI 34-242, _Mortuary Affairs Program_ , 2 Apr 2008; AFI 34-244, _Disposition of Personal Property and Effects_ , 2

March 2001; AFI 34-1101, _Assistance to Survivors of Persons Involved in Air Force Aviation Mishaps and Other Incidents_ , 1 October 2001; AFI 36-809, _Civilian Survivor Assistance_ , 1 July 2003; AFI 36-3002, _Casualty Services,_ 26 August 1994; AFP 36-3027, _Benefits and Entitlements for Family Members of Air Force Deceased_ , 3 October 2002; AFP 36-3028, _Benefits and Entitlements for_ _Family Members of Retired Air Force Deceased_ , 3 October 2002; applicable federal law; applicable state law.

**BACKGROUND**

The United States has a long and honorable history of providing monetary and other benefits to members serving in the

military, to veterans of military service, and to their dependents and survivors. The nation's obligation to its veterans

was most eloquently articulated by President Abraham Lincoln, who in his Second Inaugural Address spoke of the re-

sponsibility "to care for him who shall have borne the battle, and for his widow, and his orphan."

Since 9/11 the benefits eligible to members of the military, veterans of the military, and dependents of the military have

radically changed. An example is that many government entities passed local local "pay equalization" ordinances or stat-

utes so that employees of governmental units would not lose money when deployed. Issues of past litigation include

what is the definition of "income" for these ordinances (e.g. does BAH count as income though not taxes, hazardous

duty pay, family separation, et cetera). Likewise every state and federal governmental entity has a requirement for a mini-

mum of 15 paid military days per year. But it is important to realize that what is considered a day can vary from state to

state, ( _see How v. City of St. Cloud_ , 515 N.W.2d 77, Minn.App. (1994) which holds that a firefighters 24 hour shift counts as 1 day and not three.) However, 15 days is the minimum states maintain, other states provide for more generous paid

leave for instance State law as contained in N.J.S.A. 38 and 38A, and N.J.A.C. 4A provides for 90 paid military days for

governmental employees. Therefore it is important for individuals to know what state and local benefits are provided for

incurring military service.

Likewise members who become ill or injured due to their military service can become eligible for benefits ranging from

medical continuation orders, incapacitation, pay, workers compensation, or if the member dies to Service Group Life In-

surance beneficiary pay out. It is important for members to maintain situational awareness of their benefits especially in

the current fiscal climate following. Statutes also change over time. Until recently, for example, if a Guardsman suffered a heart attack while in inactive duty training (IDT) status (the typical status for a member performing a UTA), that Guardsman or his survivors were excluded from obtaining certain benefits. Now, that Guardsman will receive more of the bene-

fits afforded to his or her active duty brethren. (38 U.S.C. 101(24)).

Even if a Guardsman and her survivors are not eligible for some benefits during her regular drill periods, more and more

Guardsmen are being activated to serve on active duty. As that happens, more Guardsmen will, unfortunately, make the

ultimate sacrifice. When that occurs, their survivors will be eligible for all the benefits afforded to active duty members.

The following information details some of the more common veterans benefits, the key personnel with whom family

members of deceased members will come into contact and a chart detailing more than 50 casualty benefits.

**FEDERAL VETERANS PROGRAMS FOR ANG MEMBERS**

**SGLI**

SGLI is a program that provides low-cost term life insurance coverage to eligible Servicemembers. If eligible, you mem-

bers are automatically issued the maximum SGLI coverage. If you qualify for SGLI, you are automatically enrolled and do

not need to apply for coverage.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 4, Benefits**_

_**Section 4-9 ANG Veteran and Casualty Benefits**_

_**Page 2**_

Servicemembers can make changes to your SGLI coverage. For example, Servicemembers can decline SGLI coverage, se-

lect a lesser amount than maximum coverage, designate beneficiaries, and/or make other changes.

_Eligibility_

Members are automatically insured under full-time SGLI if you are one of the following:

Active duty member of the Army, Navy, Air Force, Marines, or Coast Guard Cadet or midshipman of the U.S. military

academies Member, cadet, or midshipman of the Reserve Officers Training Corps (ROTC) engaged in authorized training

and practice cruises Member of the Ready Reserve or National Guard and are scheduled to perform at least 12 periods of

inactive training per year Servicemember who volunteers for a mobilization category in the Individual Ready Reserve

(IRR).

With SGLI coverage, the member pays a monthly premium that is automatically deducted from your base pay. The cur-

rent basic SGLI premium rate is 7 cents per $1,000 of insurance. The premium includes an additional $1.00 per month

for Traumatic Injury Protection coverage (TSGLI).

It is important for all individuals to stay current with their SGLI and check leave and earning statements to make sure

coverage is as desired.

**Home Mortgage Loan Guaranties**

Certain veterans are eligible for home mortgage loan guaranties from the Department of Veterans Affairs. The home loan

mortgage guaranty program is authorized by 38 U.S.C. 3701-3714. It is commonly referred to as the "VA loan" program.

Because the federal government is guaranteeing the repayment of a significant percentage of the home mortgage loan in

case of default by the veteran, the program is particularly attractive for mortgage lenders. Veterans who are eligible for

home mortgage loans guaranteed by the Department of Veterans Affairs can obtain lower interest rates on these "VA

loans" than they can obtain on conventional loans from mortgage lenders. Lower interest rates translate to substantial

savings in interest payments over the course of a home mortgage loan. Lenders sometimes will not require as large a

down payment on "VA loans" as they do on conventional loans. Home mortgage loan guaranties currently are authorized

under 38 U.S.C. 3702 for veterans who, amongst others, have served at least six years in the National Guard or were dis-

charged from the National Guard with less than six years of service because of a service-connected disability.

**Civilian Employment**

Title 38 of the United States Code protects the civilian employment rights of veterans returning from active duty. Title 38

also protects the civilian employment rights of reserve personnel, including members of the Air National Guard, who

have not been called to active duty. The protection of civilian employment rights is discussed in the separate topic

entitled _CIVILIAN EMPLOYMENT AND GUARD MEMBERSHIP_ in this _Deskbook_.

**CASUALTY BENEFITS**

The survivors of an Air Force member who dies must deal with a daunting array of issues. Fortunately, though, the survi-

vors will have the assistance of a number of people in their Air Force family to help them navigate through many of

them. Some of the key personnel with whom family members will come into contact are the following:

Casualty Assistance Representative (CAR) – Upon learning of the death of a military member or retiree, the MPF com-

mander will appoint a CAR. If the deceased is a Guard member and the servicing MPF does not have casualty assistance

capabilities, then HQ AFMPC/DPMCAA will assign the casualty assistance responsibility to the nearest AF installation.

The CAR will assist the family members of the deceased with informing them of their benefits, help with filling out

forms to claim those benefits, and resolving complaints and problems.

_**Air National Guard Commander's Legal Deskbook**_

187

_**Chapter 4, Benefits**_

_**Section 4-9 ANG Veteran and Casualty Benefits**_

_**Page 3**_

Mortuary Services Officer (MSO) – The MSO at the base mortuary affairs office will assist family members with burial

arrangements including ensuring that proper military funeral honors are given to the deceased. The MSO will be the fam-

ily's liaison with the funeral home and the National Cemetery System.

Summary Court Officer (SCO) – The SCO will be a commissioned officer appointed by the deceased's commander to in-

ventory, safeguard and deliver as directed by the next of kin all personal effects from the deceased's work place and/or

living space.

Chaplain – The chaplain will be available to the family, especially in the first few days after the member's death, to listen to, support and console the family.

Family Liaison Officer (FLO) – This person most likely will be a "crew counterpart" of the deceased appointed by the

commander. The FLO's aim is to reduce the stress on the survivors. He or she will act as a coordinator for the other serv-

ices noted above and provides referrals for grief counseling. With the family's agreement, the FLO will be present at all

meetings and briefings where benefits-related information will be provided.

In addition to the support given to the family members by the individuals above, survivors will be eligible for dozens of

benefits – burial, financial, educational, and more. Over 50 of these benefits are detailed in the accompanying chart.

**STATE VETERANS AND CASUALTY PROGRAMS FOR ANG MEMBERS AND SURVIVORS**

Commanders should also be aware that certain states have enacted statutes providing various benefits and protections to

veterans and their survivors. These state statutes may deal with such topics as education and housing benefits, civilian

employment rights, tax exemptions, and distinctive automobile tags. Members of the Air National Guard may be able to

take advantage of some of these state statutes. Commanders should consult the Staff Judge Advocate about the laws of

their particular state. More detailed information in regard to veterans benefits may be obtained from the Staff Judge Advo-

cate or the nearest office of the Department of Veterans Affairs.

Because of the great value of these veterans benefit programs to recruiting and retention, commanders should obtain and

maintain all available booklets and information on these programs (they are usually free) in sufficient quantities for unit

members, and should widely disseminate current information, addresses, telephone numbers and points of contact con-

cerning all federal and applicable state veterans programs and benefits available to members of their unit.

**CONCLUSION**

Many veterans and casualty benefits are available to Air National Guard members and their survivors. Your Staff Judge

Advocate will have access to the most up-to-date information available. All unit members should be briefed periodically

on these benefits and recruiters and MPF personnel should work closely with the legal office to ensure the widest possi-

ble dissemination of benefit information.

_**KWIK-NOTE: Widely disseminate to all unit members current federal and state literature on veterans benefits as a recruiting**_

_**and retention tool, and help your members apply for them. Know your state's veterans benefits, and consider supplementing**_

_**this topic with applicable state law.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Benefits

4-2

Civilian Employment and Guard Membership

23-8

Line of Duty Determinations

1-19

Montgomery G.I. Bill

4-6

Veterans and Casualty Benefits Chart

4-8(a)

_**Air National Guard Commander's Legal Deskbook**_

188

**Chapter 5, Civilian Personnel Matters**

**Table of Contents**

**Section**

5 - 1 Table of Contents

5 - 2 Civilian Employee Discipline

5 - 3 Employee Interrogation

5 - 4 Injuries to Civilian Employees

5 - 5 Labor Relations

5 - 6 Unacceptable Performance of Civilian Employees

5 - 7 Unemployment Compensation

5 - 8 Unions - Collective Bargaining Agreement Negotiating Team

5 - 9 Whistleblower Protection Act

5 - 10 ** pending revision ** Workplace Searches

_**Air National Guard Commander's Legal Deskbook**_

189

_**Chapter 5, Civilian Personnel Matters**_

_**Section 5-2 Civilian Employee Discipline**_

_**Page 1**_

**Civilian Employee Discipline**

**Updated by Col Julio R. Barron, June 2009**

**AUTHORITY:** 32 U.S.C. § 709; Technician Personnel Regulation (TPR) 700, 715, and 752; applicable state regulations;

local collective bargaining agreements. 

## INTRODUCTION

Commanders and supervisors must ensure that the work environment is disciplined and constructive to accomplish the

mission. To achieve the proper environment, Air National Guard commanders must understand the civilian employee

discipline system that applies to federal technicians. As your unit may also employ state employees, you will also need to

understand the procedures applicable to them. However, this topic will focus only on federal technicians.

**AUTHORITY**

The National Guard Technician Act, 32 U.S.C. § 709, provides that the Adjutant General employ and administer federal

technicians. Thus, the Adjutant General is the final authority for the agency on adverse and disciplinary actions. An ad-

verse action is a removal, suspension, furlough for 30 days or less, or reduction in grade or pay. Adverse actions may be

for disciplinary reasons or non-disciplinary reasons. A disciplinary action is an action taken by management to correct an

employee's delinquency or misconduct. Disciplinary actions include oral admonishments, reprimands, suspensions, re-

movals, and reductions in pay or grade.

Disciplinary actions should be taken promptly, equitably, and only when necessary. Disciplinary or adverse action must

not be taken against employees based upon their marital status, political affiliation, race, color, religion, sex, national origin, age, or disability.

**DUAL STATUS TECHNICIANS**

Because the National Guard is not a full time active force, some National Guard members are employed in a full time

status to meet the day to day administrative, training, and logistical needs of the National Guard. National Guard Federal

Technicians are full time employees of the National Guard with responsibility for insuring the readiness of the National

Guard. 32 U.S.C. § 709. Technician duties involve caring for material, armament and equipment of the National Guard as

well as performing "such Guard functions as training, employment in State headquarters, air defense, military support of

civil defense, and aircraft operations." S. Rep. No. 1446, 90th Cong., 2d Sess. 4-5 (1968).

Title 32 U.S.C. § 709(d) provides that a technician "is an employee of the Department of the Army or the Department of

the Air Force, as the case may be, and an employee of the United States." This authority authorizes the supervision of

technicians by state adjutants general under regulations prescribed by the Secretaries of the Army and Air Force. 32

U.S.C. § 709(a). Congress recognizes the unique status of technicians as federal employees in a State agency and pro-

vides for continuing administrative authority Technicians constitute a special and distinct class of federal employees. _California National Guard v. Federal Labor Relations Authority_ , 697 F.2d 874, 877 (9th Cir. 1983); _New Jersey Air National Guard v._

_Federal Labor Relations Authority_ , 677 F.2d 276 (3rd Cir. 1982).

National Guard technicians serve concurrently in three ways: (1) they perform full-time civilian work in their units; (2)

they perform military training and duty in their units; and (3) they are available to enter active Federal service at any

time their units are called, or "federalized." Technician employment is conditioned on current membership in the Na-

tional Guard, and technicians must meet military compatibility requirements, "because the technician's civilian and mili-

tary functions are integrated." _Simpson v. United States_ , 467 F. Supp. 1122, 1124 (S.D.N.Y. 1979).

_**Air National Guard Commander's Legal Deskbook**_

190

_**Chapter 5, Civilian Personnel Matters**_

_**Section 5-2 Civilian Employee Discipline**_

_**Page 2**_

_See also AFGE, Local 2953 v. FLRA_ , 730 F.2d at 1544-46; 32 U.S.C. § 709. National Guard dual-status technicians are federal civilian employees who wear their service uniform and adhere to the customs and courtesies of their service. They

are mandated to maintain military status as an Army or Air National Guard servicemember as a condition of continued

employment. 32 U.S.C. § 709(e)(1); _See also Watson v. Arkansas National Guard,_ 886 F.2d 1004, 1005, n. 1 (8th Cir. 1989).

**REQUIREMENTS FOR DISCIPLINARY ACTIONS**

A disciplinary action may be taken only if such action promotes the efficiency of the service. You must be prepared to sup-

port the factual basis for the disciplinary action by a preponderance of the evidence, if the matter goes to a hearing as discussed below. The following elements must be supportable:

1. The reason for the action taken, i.e., that the alleged misconduct occurred;

2. A connection between the misconduct or adverse action and the employee's job, i.e., that the action will in fact pro-

mote the efficiency of the service; and

3. That the penalty imposed is appropriate to the offense. (Appendix A-5, TPR 752, provides guidelines).

Progressive discipline is the general rule. That is, supervisors should move through the disciplinary options starting with

the lowest appropriate sanction.

**DISCIPLINARY PROCEDURES**

The following are the disciplinary procedures outlined in TPR 752. However, before using them, you should ensure that

these procedures do not violate, and are consistent with your local collective bargaining agreement.

Step 1: PREPARE AND SERVE PROPOSED NOTICE OF ACTION AND RESPONSE

1. Gather the facts.

2. Interview the employee, if necessary. (See below concerning _Weingarten_ rights).

3. Consult with your Human Resources officer (HRO), Labor Relations specialist (LRS), and SJA to consider options and

determine appropriate action.

4. With guidance from your HRO, LRS and SJA, the Proposing Official (normally the first or second level supervisor)

should prepare a Notice of Proposed Action. This Notice must, at a minimum, inform the employee of the following:

a. Notice of the precise action being proposed, i.e., suspension, removal, etc.;

b. The reason for the action (keep it factual, simple and straight forward);

c. Notice of the employee's right to review the material or evidence relied upon to support the reason for the action;

d. The date when the proposed action will take place;

e. The right to respond orally, in writing, or both, and to furnish documentary evidence;

f. The amount of official time allowed for preparation of a response; and

g. The right to representation (union representative, private attorney, or other person).

Note about representation: The union has a right to have a representative present at any investigative examination of a

bargaining unit employee if the employee believes discipline will result and the employee requests union representation.

_NLRB v. Weingarten_ , 420 U.S. 251 (1975).

_**Air National Guard Commander's Legal Deskbook**_

191

_**Chapter 5, Civilian Personnel Matters**_

_**Section 5-2 Civilian Employee Discipline**_

_**Page 3**_

Step 2: RECEIVE RESPONSE FROM TECHNICIAN

Once the employee has been given notice of the proposed action, he or she must be given a reasonable amount of time,

but not less than seven days, to answer orally and in writing and to present affidavits and other documentary evidence in

support of the reply. The employee's answer must be considered in arriving at a decision.

Step 3: NOTICE OF DECISION

After the employee responds, the "Deciding Official" reviews both the Notice Letter and the employee's response. The Deciding Official is normally the next level supervisor above the Proposing Official, but it may be the same person. Afterwards, the Deciding Official will make a final decision as to the appropriateness of the proposed action. The decision

must be in writing and served on the employee. Again, the decision should be written with help from both the SJA, LRS

and HRO.

Before making a final decision the Deciding Official must consider all of the appropriate _Douglas_ factors (there are twelve) governing proper penalty selection (As is common in the law, " _Douglas_ " factors are so-called because in a previous case involving someone named Douglas, these "factors" were formulated for the first time). These factors are:

1. The nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, in-

cluding whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was

frequently repeated;

2. The employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and

prominence of the position;

3. The employee's past disciplinary record;

4. The employee's past work record, including length of service, performance on the job, ability to get along with fellow

workers, and dependability;

5. The effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors'

confidence in the employee's ability to perform assigned duties;

6. Consistency of the penalty with those imposed upon other employees for the same or similar offenses;

7. Consistency of the penalty with any applicable agency table of penalties;

8. The notoriety of the offense or its impact upon the reputation of the agency;

9. The clarity with which the employee was on notice of any rules which were violated in committing the offense, or has

been warned about the conduct in question;

10. The potential for employee's rehabilitation;

11. Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impair-

ment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and

12. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or oth-

ers. ****

_See_ Appendix A-2 and A-5, TPR 752 for a guide to selecting an appropriate penalty.

_**Air National Guard Commander's Legal Deskbook**_

192

_**Chapter 5, Civilian Personnel Matters**_

_**Section 5-2 Civilian Employee Discipline**_

_**Page 4**_

The written decision must also inform the employee of appeal rights.

The reasons given in the notice of decision for the action taken must be the same as those stated in the notice of pro-

posed action, since the employee's rights to minimal due process include the right to notice of the true reasons for an

action. The employee is entitled to specific notice of the charges on which the adverse action is based, and the action can-

not be adjudicated on the basis of charges that might have been, but were not, made. As a general rule, the deciding offi-

cial is limited to considering the charges, reasons, and penalties proposed in the notice of proposed action. If the decid-

ing official decides that action should be taken for different reasons or that the penalty should be more severe, a new no-

tice of proposed action should be issued.

Step 4: APPEAL

If the employee is a bargaining unit employee, the employee may either file a grievance under the negotiated grievance

procedure of the local collective bargaining agreement; OR take a direct appeal to the Adjutant General; OR have the ap-

peal heard by a hearing examiner who will make a recommendation to the Adjutant General. The Adjutant General will

make a final decision on such an appeal.

If the employee is not a bargaining unit employee, the employee may take a direct appeal to the Adjutant General; OR

have the appeal heard by a hearing examiner who will make a recommendation to the Adjutant General. The Adjutant

General will make a final decision on such an appeal.

Hearing Examiners usually come from another state and are trained and certified by the National Guard Bureau. Your

HRO will make the administrative arrangements for a hearing. The hearing examiner will write a report and make a rec-

ommendation to the Adjutant General who will make the final decision.

Any employee may use Equal Employment Opportunity procedures, should the circumstances so warrant.

Failure to meet the burden of proof as outlined above (preponderance of the evidence), could result in not only having

the action overturned or mitigated with the individual reinstated if the overturned action was removal, but also could

result in an award of back pay and attorneys fees.

_**KWIK-NOTE: Because of the ultimate review of your decisions by the Adjutant General, civilian employee adverse action**_

_**and disciplinary requirements and procedures must strictly be followed.**_

**RELATED TOPICS:**

****

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****

****

****

****

****

****

****

****

**SECTION**

Advising Suspects of Their Rights

8-9

Alcohol Abuse

10-3

Civilian Misconduct on Base

3-7

Discrimination Complaints - Technician

9-4

Drug Abuse

10-4

Employee Interrogation

5-3

Evidence - Differing Standards and Burdens of Proof

8-4

Investigations and Inquiries

16-11

Labor Relations

5-5

Political Activities

7-12

Release of Reports of Investigation in Discrimination Complaints to Management Officials

9-7

Sexual Harassment

9-8

Unacceptable Performance of Civilian Employees

5-6

Unemployment Compensation

5-7

Whistleblower Protection Act

5-9

_**Air National Guard Commander's Legal Deskbook**_

193

_**Chapter 5, Civilian Personnel Matters Section**_

_**Section 5-3 Employee Interrogation**_

_**Page 1**_

**Employee Interrogation**

**Updated by Col Julio R. Barron, June 2009**

**AUTHORITY:** AFI 90-301, _Inspector General Complaints_ (30 Jan 01), para 2.38; _NLRB v. Weingarten_ , 420 U.S. 251 (1975).

**GENERALLY**

Two competing interests are involved whenever a dual-status technician, in a civilian capacity, or a civilian employee is

questioned about criminal or other wrongful conduct that relates to the employee's National Guard employment. They

are the National Guard's need for information from the employee and the employee's constitutional and statutory rights

**CRIMINAL CONDUCT**

The U.S. Constitution's Fifth Amendment offers protection to individuals suspected of committing crimes. _**If the individ-**_

_**ual is subjected to a "custodial interrogation,"**_ the individual must be informed of the right to remain silent when the requested information would incriminate or tend to incriminate them. The person has the right to consult with an attorney

and to have an attorney present during the interview. Also, if they start answering questions, they can stop answering

questions at any time. These are the so-called " _Miranda_ " rights. A rights advisement card is available from your Security Forces that you can use to read these rights in their full content to the employee. If the person being questioned is not

subjected to a "custodial interrogation," no _Miranda_ rights advisement need be given. State law may provide broader

rights for individuals. Consult with your Staff Judge Advocate before any questioning of a person suspected of criminal

conduct.

When contemplating questioning civilian public employees, also consult 8-9 " _ADVISING SUSPECTS OF THEIR RIGHTS_ "

and 16-11" _INVESTIGATIONS AND INQUIRIES_."

**ADDITIONAL RULES FOR DUAL-STATUS TECHNICIANS AND CIVILIAN EMPLOYEES**

**Right to Have a Union Representative Present**

In 1975 the U.S. Supreme Court, in the case of _NLRB v. Weingarten_ , established a right for an employee to have union representation if the employee believed disciplinary action could result from questioning by the employer and a union repre-

sentative was requested. This right applies to state employees and technicians. In the federal sector, 5 U.S.C. § 7114 (a)

(2) (B) established a right for a labor union as well to represent employees.

The union's and the employee's statutory right to union representation in connection with an investigation is applicable

when four conditions are present:

1. There is a meeting in which management questions a bargaining unit employee;

2. The examination is about an investigation (it need not be an OSI or Security Police or even a formal investigation);

3. The employee can reasonably believe that discipline could result from the examination; and 4. The employee requests

representation.

4. The employee requests representation.

Note: While there is no federal statutory requirement to advise a technician of the right to union representation beyond

the annual posting of notice of such right, the applicable collective bargaining agreement may so require. Additionally,

state law may provide such a requirement as to state employees.

_**Air National Guard Commander's Legal Deskbook**_

194

_**Chapter 5, Civilian Personnel Matters Section**_

_**Section 5-3 Employee Interrogation**_

_**Page 2**_

**Limitations and Effect When the Right to Union Representation is Exercised**

Other guidelines concerning this rule are:

1. It does NOT apply to an actual counseling session;

2. The role of the union representative during the interview is to:

a. Clarify the facts;

b. Suggest other employees who may have knowledge of the facts; and

c. Ensure the employer does not initiate or impose unjust punishment;

3. Individuals being investigated may not serve as representatives for other employees being investigated until their own

investigations are completed;

4. An employee may waive the right to union representation; and

5. Once an employee's request for a union representative is made, management may:

a. Grant the request; or

b. Suspend the interview; or

c. Give the employee the choice of having an interview without a union representative or having no interview.

**Required Disclosure with Immunity**

Dual-status technicians, in their civilian capacity, and civilian employees also have a duty to account for the performance

of their duties and failure to provide desired information can serve as a basis for disciplinary action or removal under certain circumstances.

Employees cannot be discharged simply because they invoke their Fifth Amendment right against self-incrimination.

Statements coerced by a threat of discipline or removal cannot be used against the employee in a subsequent prosecu-

tion.

Employees can be removed for not replying if they are adequately informed both that they are subject to discharge for

not answering and that their replies (and any evidence subsequently discovered from their replies) cannot be used

against them in a criminal case. If you so inform the employee, you will be bound by this, so that if you, higher military

authorities or federal or state civilian officials later decide to seek prosecution against that employee, any information the employee has been compelled to disclose, and any information derived from that disclosure, based upon your representation that no prosecution would be sought, will probably NOT be admissible in any prosecution - military or civilian -

against that employee.

Note: Always check with the Department of Justice and/or U.S. Attorney through proper channels before making such a

promise of immunity.

_**Air National Guard Commander's Legal Deskbook**_

195

_**Chapter 5, Civilian Personnel Matters**_

_**Section 5-3 Employee Interrogation**_

_**Page 3**_

**Consequences of Participating or Not Participating in an Interview**

An employee also has the right to be advised of the consequences of participating or not participating in an interview for

a third party proceeding (unfair labor practice hearing, arbitration, etc.), and failure to do so can be an unfair labor practice by management. Basically, the employee must be advised:

1. Of the purpose of the interview;

2. That no reprisal will take place if the employee refuses to participate;

3. That participation is voluntary;

4. That the interview will not be coercive; and

5. Questions must not exceed the scope of the legitimate purpose of the inquiry and cannot otherwise interfere with the

employee's statutory rights.

**PRACTICAL TIPS**

When you interview public employees about their criminal or wrongful conduct, usually one of two situations will arise:

1. After rights advisement, the employee will voluntarily and knowingly waive the rights and speak to you; or

2. After rights advisement, the employee will exercise the right to remain silent, or the right to have counsel or a union

representative present (if the employee has not already exercised the right to remain silent or the right to counsel, the

union representative will probably advise the employee to do so).

In the first situation, since the employee is voluntarily speaking to you, unless (a) either the atmosphere in which the

interview takes place is inherently coercive (exaggerated example - four security policemen with guns drawn in your of-

fice during questioning), or (b) you have gratuitously told the employee that nothing will happen, and you just want to

find out the facts, the information you learn will likely support, and be admissible in any subsequent adverse action

taken against that employee.

In the second situation, the employee has exercised either the right to remain silent, or the right to have counsel or a un-

ion representative present. You must scrupulously honor the employee's exercise of these rights. Because of the potential

later use of the evidence obtained, all Commanders are strongly advised to consult with their Staff Judge Advocates BE-

FORE questioning any civilian public employee about criminal or other wrongful conduct.

**NOTE: Check state law and the applicable collective bargaining agreement for expansion or modification of an**

**employee's rights when questioned.**

**RELATED TOPICS:**

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****

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****

****

****

****

**SECTION**

Advising Suspects Of Their Rights

8-9

Arrest By Civilian Authorities

8-6

Civilian Misconduct On Base

3-7

Civilian Warrants and Process - Service On Base

3-8

Confessions

8-10

Criminal Investigations, Prosecutions And Reporting - DOD and DOJ

8-12

Investigations And Inquiries

16-11

Labor Relations

5-5

_**Air National Guard Commander's Legal Deskbook**_

196

_**Chapter 5, Civilian Personnel Matters**_

_**Section 5-4 Injuries to Civilian Employees**_

_**Page 1**_

**Injuries to Civilian Employees**

**Updated by Col Julio R. Barron, June 2009**

**AUTHORITY:** 2 U.S.C. 709; 5 U.S.C. 8101, _et seq._

## INTRODUCTION

The following information applies to federal civilian employees and to Air National Guard dual-status technicians while

they are in technician status. It does not apply to state civilian employees. Check with the state civilian personnel officer for information about injured state civilian employees.

**ENTITLEMENT TO COMPENSATION**

Civilian employees are entitled to compensation under the Federal Employees Compensation Act for job-related injuries

or illnesses. The employee may receive compensation for missed work and for health care costs.

An employee may receive compensation from the employer under the Continuation of Pay (COP) program and from the

Office of Workman's Compensation Program (OWCP) for traumatic and disabling injuries or for occupational illness or

disease. Traumatic injury is a wound or other condition caused by external force, including physical stress or strain. Occu-

pational illness or disease is a condition produced over a period longer than one workday or shift. The following is a gen-

eral comparison of the COP and OWCP.

COP:

For traumatic, disabling injury.

Payment of regular pay for up to 45 calendar days.

Employee can choose COP or sick or annual leave.

OWCP:

For traumatic injury or occupational illness.

Payment of up to 75 percent of pay, depending on extent of disability, for the duration of the disability. Reasonable medi-

cal expenses paid.

Dependents paid compensation if employee dies.

**EMPLOYER'S RESPONSIBILITIES**

The supervisor has the primary responsibility to ensure the employee is compensated for on-the-job illness or injury. The

Injury Compensation Program Administrator (ICPA), who is appointed by the Human Resources Officer (HRO), assists

the supervisor. The ICPA is responsible for informing supervisors of their responsibilities and employees of their rights.

The ICPA also supervises the program to ensure that it is administered properly. The ICPA should be contacted immedi-

ately after a supervisor learns of an employee's injury or illness.

An employee must report injury or occupational illness and disease in a timely fashion; otherwise the employee may lose

the benefits of the compensation programs.

_**Air National Guard Commander's Legal Deskbook**_

197

_**Chapter 5, Civilian Personnel Matters**_

_**Section 5-4 Injuries to Civilian Employees**_

_**Page 1**_

The employee must report a disabling injury within 30 calendar days of its occurrence. The employee must report occupa-

tional illness or disease within three years of the occurrence or of the time when the employee should have been aware

of its occurrence. If there is doubt as to the legitimacy of a claim, the claim can be contested, but it should be done as

soon as possible.

If the employee can continue to work, but not at full capacity, the employee should be assigned to light duties until the

employee recovers. Many states have developed form letters to send to doctors to help the units decide the nature of the

light duties the employee may perform without aggravating the injury or re-injuring the employee. If it becomes appar-

ent that the employee will not recover sufficiently to perform the essential responsibilities of the job, the employee will

be assigned a new position, if one is available for which the employee qualifies, or the employee will be separated from

employment. The employer must make every effort to restore to employment a former employee who has partially recov-

ered from a compensable injury or illness. This may require placing the employee in a different position from that which

the employee formerly held.

For further information on this subject, contact your HRO.

**EXCLUSIVE REMEDY**

The Federal Employee Compensation Act expressly states that it provides the exclusive remedy against the federal gov-

ernment for a job-related injury to a covered employee. 5 U.S.C. Section 8116(c). Therefore, a civilian employee or techni-

cian may not bring a lawsuit against the United States or any of its agencies to recover damages for a compensable job-

related injury or illness. Additionally, claims for damages brought by national guard technicians against the United

States, the state, or federal or state officers for injuries that are "incident to service" are barred by the Feres doctrine. ( _See_ discussion in _Deskbook_ topic " _Feres_ Doctrine.")

_**KWIK-NOTE: Technicians may receive compensation for job-related injuries, illnesses or diseases, subject to their being**_

_**timely reported.**_

**RELATED TOPICS:**

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****

****

****

****

****

****

**SECTION**

_Feres_ Doctrine 1

8-3

Lawsuits Against National Guard Personnel

18-6

_**Air National Guard Commander's Legal Deskbook**_

198

_**Chapter 5, Civilian Personnel Matters**_

_**Section 5-5 Labor Relations**_

_**Page 1**_

**Labor Relations**

**Updated by Col Julio R. Barron, June 2009**

**AUTHORITY:** 5 U.S.C. §§ 7101 - 7135; AFI 64-106, _Air Force Industrial Labor Relations Activities_ (25 Mar 94); applicable state law and regulations.

**CIVILIAN EMPLOYEE UNIONS**

**Employee Rights**

Dual-status technicians and civilian federal employees who are paid from appropriated or non-appropriated funds are eli-

gible to form unions. State employees may or may not have authority to participate in unions. Check with your Staff

Judge Advocate or Civilian Personnel officer for information on union participation by state employees.

A union is an organization of employees who pay dues and participate together in management-employee relationships.

The union can negotiate with management on behalf of its members and other employees within the defined bargaining

unit over grievances and conditions of employment. Federal unions are prohibited from striking, but the union can picket

if it does not interfere with the agency's operations ( _e.g._ , the mission).

**How Organized**

Federal employers must recognize a union as the exclusive representative of the employees in a unit when the union has

been approved by a majority of unit employees. A unit is a group of employees who share a clearly identifiable "commu-

nity of interest." An installation can have more than one unit and, consequently, more than one union.

**Who is Represented**

The union represents all members of the unit regardless of their membership status. Thus, a union represents a unit em-

ployee who is not a dues paying member of the union.

**MANAGEMENT RIGHTS**

(NOTE: President's Executive Order 12871 which established the National Partnership Council and required Federal

Agencies to create labor-management partnerships was revoked by President's Executive Order 13203 in 2001 but is ex-

pected to be reissued before the end of 2009.)

Certain prerogatives are reserved to management. The union cannot negotiate them. These prerogatives are:

1. To determine the mission, budget, organization, number of employees, and internal security practices;

2. To hire, assign, direct, layoff, and retain employees, or to suspend, remove, reduce in grade or pay, or to take other disciplinary action against employees;

3. To assign work, to make determinations with respect to contracting out, and to determine the personnel by which the

agency's operations will be conducted;

4. To make selections to fill positions and promote employees in accordance with applicable rules; and

5. To take whatever actions are necessary to carry out the agency's mission during an emergency.

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_**Section 5-5 Labor Relations**_

_**Page 2**_

Even though the union cannot negotiate over the foregoing issues, it can negotiate the procedures management will use

to exercise them. It can also negotiate the arrangements for employees adversely affected by management's exercise of

these prerogatives.

Pursuant to a decision of the Federal Labor Relations Authority (FLRA) in Case No. O-AR-1013, June 4, 1986, 438 ABG,

McGuire AFB, NJ and American Federation of Government Employees, Local 1778, 22 FLRA No. 3, under management's

right to assign work (paragraph 3 above), civilian employees (technicians) can be assigned debris pick-up duties in the

flight line area of the base so that Installation Commanders can better satisfy their obligations to ensure that no foreign

object damage (FOD) threatens the safety of their personnel or aircraft. Thus, FOD walks are authorized work assign-

ments for federal civilian employees.

**UNION RIGHTS**

The union is the exclusive representative for unit members and is entitled to negotiate a collective bargaining agreement

(CBA) for unit members. The CBA governs management actions involving unit members. The union is entitled to infor-

mation reasonably available and necessary for a full and proper negotiation. No Freedom of Information Act request is

required and the union cannot be charged for providing this information. However, management need not (and should

not) release information if it contains guidance to management officials relating to bargaining.

A union representative must be present, if requested by a unit member, when the employee is questioned as part of an

investigation and the employee reasonably believes the questioning may result in disciplinary action against the em-

ployee. This is referred to as the " _Weingarten_ rights." Management must annually inform all employees belonging to the bargaining unit of this right to demand a union representative. However, the role of the union representative at the questioning session is limited. Note: Public employees also must account for the performance of their duties, and failure to

provide the desired information can provide a basis for removal under certain circumstances.

A union representative is also entitled to be present during any formal discussion between management and one or more

unit members. Before a formal discussion is held with a unit member, management must notify the union and give it an

opportunity to be represented at the meeting. Discussion means meeting and does not require that there be a debate or

argument. It is suggested you consult with your Labor Relations Specialist before conducting such discussion to see if

the union should be notified.

Note the difference in the employer's duty between a questioning session and a discussion. Absent state law or a CBA

requiring otherwise, in questioning sessions, the employer does not have to advise the employee of the right to have a

union representative present (except for the annual advice). The employee must request it. In discussion sessions, the

employer must notify the union before the meeting is held.

Union members have the right to receive wages when they are on official time to negotiate. The number of union repre-

sentatives may not exceed the number of Air National Guard management representatives. Official time must be given

for all negotiations; _i.e.,_ ground rules for negotiations; CBA negotiations; mid-term negotiations; and impact and implementation bargaining. However, no official time is given for internal union business, such as collecting dues or soliciting

new members. Official time for other purposes may be bargained and, if agreed to, should be in the CBA.

**UNFAIR LABOR PRACTICES**

Certain management or union practices are illegal. They are called unfair labor practices (ULPs). The Federal Labor Rela-

tions Authority (FLRA) investigates ULPs. If the FLRA believes that a ULP was committed, it will issue a complaint

against the offending party. The complaint is heard by an administrative law judge who determines whether a ULP was

committed and the appropriate remedy.

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_**Chapter 5, Civilian Personnel Matters**_

_**Section 5-5 Labor Relations**_

_**Page 3**_

There are many types of actions that may be ULPs when committed by management officials. Examples of management

ULPs include:

1. Improperly encouraging or discouraging membership in a union;

2. Retaliating against an employee for filing a grievance;

3. Refusing to negotiate in good faith with the union;

4. Speaking to a union officer in a demeaning manner in the presence of employees;

5. Bypassing the union by negotiating with the employees directly;

6. Threatening the union;

7. Disciplining an employee without allowing a union representative to be present when requested by the employee;

8. Attendance by management at a union meeting;

9. Interrogating employees about filing a ULP;

10. Disciplining a union steward while not disciplining another employee equally culpable;

11. Sponsoring, controlling or assisting a union;

12. Failing or refusing to cooperate in impasse procedures or decisions;

13. Enforcing a rule or regulation which conflicts with a preexisting CBA; and,

14. Otherwise failing to comply with any provision of Title VII: Federal Service Labor Management Relations Statute (5

U.S.C. § 7101, _et seq_.).

There are many other areas in which management can commit ULPs. Management officials should be trained in these

areas.

The union can also commit ULPs. Among them are calling strikes or work slowdowns and hindering an employee's work

performance, and discriminating regarding union membership on the basis of race, creed, color, sex, age, handicap, mari-

tal status, national origin or political affiliation.

**GRIEVANCES AND ARBITRATION**

Collective bargaining agreements must establish procedures for settling employee grievances. The procedure must be

fair, simple and quick. It must allow the union, in its own right, or the offended employee to pursue the grievance. The

CBA must also allow the grievance to be resolved by binding arbitration if it is not resolved through the grievance proce-

dure. Arbitration decisions are usually final, but they can, in limited circumstances, be appealed.

**STRIKES BY DUAL-STATUS TECHNICIANS AND CIVILIAN EMPLOYEES**

Federal labor unions are prohibited by law from calling strikes, work stoppages, or slowdowns. Picketing is also illegal if

it interferes with an agency's operations. When a strike or other prohibited action is threatened or occurs, the Installa-

tion commander must immediately notify the head of the local union. No action will be taken against the union if:

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_**Chapter 5, Civilian Personnel Matters**_

_**Section 5-5 Labor Relations**_

_**Page 4**_

1. The union disavows or withdraws any threatening statements;

2. There is no evidence that the union ordered, approved, or authorized the prohibited activity; and

3. The union promptly orders its members to cease their participation in the prohibited activity.

If there is evidence that the union participated in the prohibited activity, or if the union fails to promptly disavow it, or fails to promptly order its members to cease their participation, the prohibited activity will be reported to the union's national affiliate. Management can also file an unfair labor practice complaint against the union, and it can take disciplinary action against the individuals who were involved.

**STRIKES BY CONTRACTOR EMPLOYEES**

A non-federal union can call a strike that involves non-federal employees working on an installation. In such cases, picket-

ing may occur. To avoid undue interference with normal base operations, the installation can designate a strike gate. The

gate can be one that is used only in case of strikes or that is otherwise not normally used. Picketing can be limited to the strike gate if the employees of the employer being struck are required to use the gate. The installation commander

should ensure that the employees do not use other gates. This may be done by posting a sign at each gate that directs

affected employees to use the proper gate. If the employees use other gates, the picketers will be able to picket those

gates as well.

The commander and the contracting officer responsible for the contract under which the striking employees work have

several responsibilities when a strike or picketing is threatened. These responsibilities are outlined in AFI 64-106 (for

reference only).

The Staff Judge Advocate and labor relations specialist in the HRO should be actively involved in all civilian personnel

matters on your base.

_**KWIK-NOTE: Commanders must scrupulously honor the rights of union members, but should not hesitate to fully exercise**_

_**management's rights in operating their bases.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Civilian Employee Discipline

5-2

Civilian Misconduct On Base

3-7

Employee Interrogation

5-3

Unacceptable Performance Of Civilian Employees

5-6

Unemployment Compensation

5-7

Unions - Collective Bargaining Agreement Negotiating Team

5-8

Whistleblower Protection Act

5-9

Workplace Searches

5-10

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 5, Civilian Personnel Matters**_

_**Section 5-6 Unacceptable Performance of Civilian Employees**_

_**Page 1**_

**Unacceptable Performance by Dual-Status Technicians and**

**Federal Civilian Employees**

**Updated by Major Christopher W. Ruscio, February 2018**

**AUTHORITY:** 5 U.S.C. §§ 4301-4303; 5 C.F.R. § 432.101, _et seq_.; AFI 36-1001, _Managing the Civilian Performance Program_ (01 July 1999; with MAJCOM supplements); AFI 36-704, _Discipline and Adverse Actions_ (22 Jul 1994); _Technician Personnel_ _Regulations_ (TPR) 430, 700, 715 and 752; applicable collective bargaining agreements and state regulations. 

## INTRODUCTION

Each state has its own regulations and statutes that apply to performance standards and appraisals of state employees.

This topic will be limited to issues surrounding competitive and excepted civil service federal employees.

The Civil Service Reform Act of 1978 requires that the appraisal and rating of employees' job performance be based on

written performance elements and valid standards, and that this performance appraisal rating be used as a basis for deci-

sions to pay, reward, assign, train, promote, demote or remove employees.

**APPEALS AND GRIEVANCES**

**** The substance of performance elements and performance standards may NOT be appealed to the Merit Systems Protec-

tion Board (MSPB) or grieved under your state National Guard grievance system pursuant to TPR 700. Disputes concern-

ing the identification of the critical elements of a position and establishment of performance standards are not grievable

and are not subject to arbitration under negotiated grievance and arbitration procedures. However, the MSPB can deter-

mine the validity of the standards if a discrimination action based upon performance is appealed.

Non-bargaining unit employees such as supervisors resolve disputes concerning ratings through the auspices of TPR 700

and any corresponding state regulations or procedures. Bargaining unit employees resolve disputes on ratings through

the negotiated grievance procedure of the local collective bargaining agreement or through TPR 700, but not both.

Probationary competitive employees may appeal to the MSPB a decision to terminate them during a probationary period

only on the grounds of partisan political reasons, marital status or discrimination, and may not otherwise appeal the ter-

mination itself.

The non-receipt of a cash award or QSI may not be appealed or grieved under the auspices of TPR 700 or the negotiated

grievance procedure. Allegations of discrimination may be processed under local or state procedures or the negotiated

grievance procedure, but not both.

Consult your HRO to learn your local grievance procedures.

**PERFORMANCE AND APPRAISAL PROCESS**

**Performance Plan**

After an employee enters service, the supervisor has a duty to provide the technician with written performance standards

and critical job elements (NGB FM 430-1). Employees are required to have a performance plan. A performance standard

describes how the element is to be accomplished and at what level it should be accomplished in to be considered fully

successful. It is the measure for job performance evaluation. Usually standards are expressed in terms of quality, timeli-

ness or quantity.

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_**Section 5-6 Unacceptable Performance of Civilian Employees**_

_**Page 2**_

**Annual Review of Performance**

At a minimum, one progress review meeting must be conducted before the end of the appraisal period. This review must

be documented. An employee must receive a performance appraisal annually.

**Notice of Unacceptable Performance and Procedures**

If a supervisor determines that a technician is having trouble performing one or more critical job elements, the supervi-

sor must inform the employee and request improvement after explaining what is expected in plain language. If the em-

ployee does not improve, the supervisor should issue a rating of record and place the technician in a performance im-

provement plan (PIP) for approximately 30-120 days by written notice. This notice should also provide the employee

with a detailed explanation on each critical job element and what action(s) will be taken to assist the subordinate in im-

proving performance. The PIP should be extended by the amount of time the employee or supervisor is absent during the

PIP.

When appropriate, employees who are having performance problems should be referred to the Employee Assistance Pro-

gram for counseling and further referral.

If performance improves to a fully successful level, the employee must be advised in writing. If the employee's behavior

becomes unacceptable within one year, then a reassignment, demotion or removal action may be taken without giving

the employee an additional opportunity to improve so long as the lack of performance is one of the critical elements iden-

tified in the PIP.

**Action If No Improvement**

If unacceptable performance in one or more critical elements continues after the PIP has expired, then reassign-

ment, demotion of one grade level or removal is authorized and the procedures below apply.

**DUE PROCESS - NOTICE AND OPPORTUNITY TO BE HEARD**

For demotion or removal, a 30-day advance written notice of the proposed action to the employee is required. This notice

must specify instances of unacceptable performance on which the action is based and the critical elements involved. The

employee must be given a minimum of 10 calendar days to respond either orally or in writing and is entitled to represen-

tation by an attorney or other representative.

**STATE IMPARTIAL REVIEW BOARD FOR TECHNICIAN EMPLOYEES (TPR 430)**

The Adjutant General will establish a State Impartial Review Board on an ad hoc or standing board basis. Board members

cannot be in the chain of command of the subordinate requesting the review and should not be in a lower-graded posi-

tion. To appeal an unacceptable or below fully successful rating, the employee must submit a written request to HRO

within 15 calendar days after receiving the Notice of Written Decision Based on Unacceptable Performance. Requests

must be submitted in writing to the Human Resources Office (HRO) specifying the element(s) challenged, the rating de-

sired and why the rating should be changed.

The Board will notify interested persons of the date, time and location where the review will be conducted. Typically, the

review will be closed to the public unless the subordinate and management agree to hold a public hearing. Each side

makes opening and closing statements, and presents evidence and witnesses. Within 15 days after conclusion of the re-

view, the Board will submit its recommendation to the Adjutant General with information copies to HRO and the subor-

dinate. The Adjutant General will sustain or reject the Board's recommendation.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 5, Civilian Personnel Matters**_

_**Section 5-6 Unacceptable Performance of Civilian Employees**_

_**Page 2**_

**APPEAL AND GRIEVANCE RIGHTS FOR TITLE 5 EMPLOYEES (AFI 36-704)**

Adverse actions are subject to review under the procedures of the MSPB, the Department of Defense (DoD), the Air

Force or negotiated grievance procedures between the Air Force and exclusive bargaining units. Written notices of final

decision contain specific information about those rights. If alternatives exist, the employee is required to select the procedure to be used. Not all employees have the same appellate or grievance rights. An employee who has received a notice

of final decision should carefully review the appellate or grievance information in it and may ask the Civilian Personnel

Flight for assistance with specific questions.

**MEDICAL CONDITION**

If performance is suspected to be adversely affected by alcohol or drugs, the supervisor must ensure that the employee is

referred to the Employee Assistance Program.

In all performance problem situations, including those where the demotion or removal process has begun, employees

must be told that if they want management to consider any medical condition that may contribute to the unacceptable

performance. The burden is on the employee to provide documentation within a reasonable period of time. _See_ 5 C.F.R., Part 339, Section 339.104 for the definition of "medical documentation." Employees must be told what exactly will be required and how much time they have to provide it. An extension may be granted if the supervisor wishes, or the process

may proceed. The supervisor and a medical officer must review any documentation provided.

The National Guard does not have a fitness for duty examination; however, a dual-status technician must be militarily

qualified in the corresponding AFSC before being hired for a position.

**COORDINATION**

You should coordinate all actions based on unacceptable performance with your HRO. Any removal or demotion action

should also be coordinated with your Staff Judge Advocate.

_**KWIK-NOTE: Because of the adverse consequences to the employee, and the potential review of your decisions through the**_

_**appeal process, the requirements and procedures of unacceptable performance actions must be strictly followed.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Civilian Employee Discipline

5-2

Employee Interrogation

5-3

Injuries To Civilian Employees

5-4

Labor Relations

5-5

Unemployment Compensation

5-7

Whistleblower Protection Act

5-9

Political Activities

7-12

Discrimination Complaints - Technician

9-4

Release Of Reports Of Investigation In Discrimination Complaints To Management Officials

9-7

Sexual Harassment

9-8

Alcohol Abuse

10-3

Drug Abuse

10-4

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 5, Civilian Personnel Matters**_

_**Section 5-7 Unemployment Compensation**_

_**Page 1**_

**Unemployment Compensation**

**Updated by Col Julio R. Barron, June 2009**

**AUTHORITY:** 5 U.S.C. § 850, et seq.; 20 C.F.R. Part 609; FPM, Chapter 850; and applicable state statutes and regula-

tions. 

## INTRODUCTION

This topic will explain the right to unemployment compensation benefits by dual-status technicians and federal civilian

employees.

**DUAL-STATUS TECHNICIANS AND FEDERAL CIVILIAN EMPLOYEES**

Since l955 federal employees who lose their jobs with the National Guard have been entitled to apply for and receive

state unemployment compensation, if otherwise qualified, just like any other employees. Therefore, it is important for

the HRO, SJA, and Comptroller to work closely together to defeat meritless claims.

Benefits are paid by the states using applicable state law. However, the U.S. Department of Labor (DOL) reimburses the

states on a quarterly basis for unemployment compensation paid to federal employees, and since l980, the federal agen-

cies concerned reimburse the DOL.

Therefore, just because a federal agency is successful in removing an employee because of either misconduct or unsatis-

factory performance, it does not mean that the individual will not continue to be paid. It takes a team effort to defeat meritless claims for unemployment compensation, and these matters should be considered an important part of all civilian

personnel actions resulting in termination.

**Procedures to Obtain or Defeat Benefits**

While the procedure may vary from state to state, the process generally proceeds as follows:

l. The former federal employee with the appropriate state agency files the claim;

2. The state agency sends the claim form to the federal agency concerned requesting "federal findings;" _i.e._ , the facts reported by the federal agency pertaining to an individual as to:

a. Whether the individual has performed federal civilian service for the agency;

b. The period of such service;

c. The individual's wages; and

d. The reasons for termination;

3. The federal agency has four workdays after receipt of the forms to return them to the state agency correctly completed

or to give notice that the time limit cannot be met and an estimated completion date. Retired records must be retrieved

by the federal agency;

4. If the federal findings are not received within l2 days, the state agency will make an entitlement determination without

them, subject to a re-determination if the findings are subsequently received.

(NOTE that "federal findings" are NOT binding on the state agency and the forms should be completed by the federal agency in a manner that will maximize the likelihood, under applicable state law, that the federal agency's views with respect to eligibility, ineligibility, and disqualification will be adopted. Thus, it is important for you to know the reasons

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_**Chapter 5, Civilian Personnel Matters**_

_**Section 5-7 Unemployment Compensation**_

_**Page 2**_

why a person can be denied unemployment compensation benefits in your state, since it is very possible that the reason

for which you fired the individual is not a permissible basis for denying unemployment compensation benefits. You need

to review these reasons so that the notice you send to the state correctly reflects why you think that person should be

denied benefits under the state's guidelines);

5. The state agency will make the initial determination. Either party (the former federal employee or the federal agency)

may appeal and request a hearing. At the hearing, the federal agency may have to re-litigate the basis for the termination,

even if the Merit Systems Protection Board (MSPB) or an arbitrator has already sustained it. Witnesses are necessary. If

either party fails to appear for the hearing, the other party MAY win by default, although some states do require the for-

mer federal employer to put on its case proving misconduct even when the claimant (former employee) fails to appear;

6. The state agency examiner issues a written decision;

7. An administrative appeal of the examiner's decision is available; and 8. Judicial review of the decision is available in

the state court.

Appeal of the job termination is a separate proceeding from the proceeding to determine unemployment compensation

benefits. You will have to repay the unemployment compensation to the state if your former employee successfully ap-

peals the denial of unemployment compensation benefits. Success on the termination appeal entitles the employee to re-

gain the job.

Time limits in state unemployment compensation cases are usually very short and strictly enforced. Communication and

cooperation among the civilian personnel officer, HRO, SJA, and comptroller are essential.

**NATIONAL GUARD MEMBERS**

National Guard members qualify for unemployment benefits after serving a minimum period of active duty of 90 days.

There is no waiting period to apply for benefits, and benefits are payable for 26 weeks. National Guard members who live

in high unemployment areas where unemployment compensation has been extended beyond 26 weeks also receive such

extension of benefits.

**STATE CIVILIAN EMPLOYEES**

A separated state civilian employee may file for and receive unemployment compensation benefits as any other civilian

employee.

**Procedures to Obtain or Defeat Benefits**

While the procedures may vary from state to state, the process generally proceeds as follows:

The claim is filed by former employee in an appropriate state unemployment compensation agency.

Agency sends employer request for separation to obtain dates of employment, average weekly wage, full-time or part

time, availability of work, pension or annuity from employer, wages in lieu of notice citizenship and reason for separa-

tion.

Agency issues a decision based on investigation or hearing combined with review of employer statement and claimant's

statement.

Agency's decision may be appealed to administrative law judge (ALJ) and ultimately to state appellate courts.

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_**Section 5-7 Unemployment Compensation**_

_**Page 2**_

Each state likely has a set of procedural rules for presenting unemployment compensation cases, and a copy of the proce-

dural rules can usually be obtained from the appropriate agency.

**Extended Benefits**

Claimants generally may receive 26 weeks of unemployment compensation benefits within a benefit year. Extended bene-

fits may accrue for an additional 26 weeks if unemployment results from foreign competition or if a claimant lives in an

area of unemployment. Extended benefits may also be given for participation in an approved training program or school.

_**KWIK-NOTE: Even though the federal agency (you) may lose the state unemployment compensation case, that proceeding**_

_**cannot be a basis to compel the federal agency to rehire the terminated employee.**_

**RELATED TOPICS:**

**SECTION**

Civilian Employee Discipline

5-2

Labor Relations

5-5

Unacceptable Performance of Civilian Employees

5-6

_**Air National Guard Commander's Legal Deskbook**_

208

_**Chapter 5, Civilian Personnel Matters**_

_**Section 5-8 Collective Bargaining Agreement Negotiating Team**_

_**Page 1**_

**Collective Bargaining Agreement Negotiating Team**

**Updated by Col Julio R. Barron, June 2009**

**AUTHORITY:** 5 U.S.C. §§ 7101–7135.

**DUTIES**

A Labor Negotiating Team may be used to negotiate a collective bargaining agreement with a properly recognized and

certified union representing dual-status technicians and other federal civilian employees of the Air National Guard. The

agreement will have a grievance procedure, which will conclude with binding arbitration, and other terms to govern vari-

ous aspects of the management-employee relationship.

**COMPOSITION**

The team is composed of individuals appointed by the Adjutant General who can ensure that the interests of manage-

ment are adequately represented. It should have someone from the Human Resources Office (HRO), preferably the La-

bor Relations Specialist, if there is one. It should also include a Judge Advocate, at least for consultation. Other mem-

bers, as needed, should be appointed to the team. They should represent the major work functions that will be impacted

by the agreement, and they should ensure that the interests of their offices are considered in arriving at the agreement.

**PROCEDURES**

There are no regulations that identify the labor negotiating team or that direct how it will be organized. This is left to the discretion of the Adjutant General.

The Adjutant General should designate one member of the team as the Chief negotiator.

_**KWIK-NOTE: Commanders should closely consult with the Labor Negotiating Team.**_

**RELATED TOPICS:**

**SECTION**

Civilian Employee Discipline

5-2

Discrimination Complaints - Technician

9-4

Employee Interrogation

5-3

Investigations and Inquiries

16-11

Labor Relations

5-5

Unacceptable Performance of Civilian Employees

5-6

_**Air National Guard Commander's Legal Deskbook**_

209

_**Chapter 5, Civilian Personnel Matters**_

_**Section 5-9 Whistleblower Protection Act**_

_**Page 1**_

**Whistleblower Protection Act**

**Updated by Col Julio R. Barron, June 2009**

**AUTHORITY:** 5 U.S. C. § 1213, § 1215, § 1221, § 2302(b)(1-12)), § 7703; applicable state law. 

## INTRODUCTION

In l989 Congress amended the Civil Service Reform Act of 1978 and passed the Whistleblower Protection Act. In 1994

Congress unanimously voted to strengthen it. This Act substantially strengthened the protection for whistleblowers in

the federal government. The Act gives employees easier access to an individual right of action before the Merit Systems

Protection Board (MSPB), alters the burden of proof for employees to prevail in reprisal claims, requires the MSPB to re-

fer managers for disciplinary investigations whenever there is a finding that reprisal was a contributing factor in a personnel action, codifies an employee's right to obtain attorneys fees and costs associated with litigation, and makes the Office of Special Counsel (OSC) independent of the MSPB.

**REQUIREMENTS**

**Initiation of Complaint**

Employees, including former employees and applicants, who believe that they have been retaliated against for disclosing

matters of waste, fraud, management, or abuse of management discretion, must first seek the assistance of OSC before

bringing an individual action. However, if OSC notifies the employee that its investigation is over and OSC will not act,

the employee has 60 days to file a complaint with the MSPB, or if the employee receives no notice from OSC within l20

days of filing the complaint, the employee may also file an individual action with the MSPB.

**Burdens of Proof**

To establish a prima facie case of whistleblowing reprisal, the employee, or the OSC acting for the employee, must prove

by a preponderance of the evidence that the whistleblowing was a factor in the personnel action taken. It is not necessary

for the employee to prove retaliatory motives of the agency or that the whistleblowing was a substantial, motivating or

predominant factor in the personnel action taken. If a prima facie case is established, the agency must prove, by clear and

convincing evidence, that it would have taken the same personnel action in the absence of the whistleblowing.

**EMPLOYEE PROTECTIONS**

Increased employee protections have been established. Mere harassment and threats, even without any formally pro-

posed personnel action, can constitute a prohibited personnel practice under the provisions of 5 U.S.C. 2302(b)(8) or (9)

and thereby trigger the protection of the Act. Also, the Act protects employees in their right to refuse orders that require a violation of the law. Note that the 1994 amendment, created a new prohibited personnel practice that flatly outlaws retaliatory orders to take psychiatric fitness for duty examinations. This deviates from the prior law, which required employ-

ees to follow orders and then protest after the fact. Further, the Act provides stronger interim relief by providing that employees who prevail at the initial evidentiary hearing must be returned to the job, or at least the payroll, during the ap-

peal process. In addition, employees who win their cases also get preference in transfers to new jobs.

**OFFICE OF SPECIAL COUNSEL**

The OSC is an "independent arm" of the MSPB. The OSC must adhere to certain guidelines in handling cases:

1. It must provide status reports to employees seeking help;

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_**Chapter 5, Civilian Personnel Matters**_

_**Section 5-9 Whistleblower Protection Act**_

_**Page 2**_

2. It must refrain from leaking the employee's evidence to the agency without the employee's consent;

3. It must refrain from settling a case without the employee's comments;

4. It must explain its decision in closing a case; and

5. It is forbidden from intervening against an employee in any administrative hearing or independent action unless in-

vited by the employee.

**LIABILITY FOR VIOLATION OF THE WHISTLEBLOWER PROTECTION ACT**

The Act provides for INDIVIDUAL LIABILITY. Disciplinary action may be taken against an individual who has commit-

ted a prohibited personnel practice. The OSC files a written complaint with the MSPB and the individual is entitled to a

hearing. If the individual is found to have committed a prohibited personnel practice, the MSPB may impose any of the

following:

1. Removal;

2. Reduction in grade;

3. Debarment from federal service for up to five (5) years;

4. Suspension;

5. Reprimand; or

6. A civil penalty not to exceed $1,000.00.

The individual may appeal any adverse decision to the U.S. Court of Appeals for the Federal Circuit.

The OSC may recommend disciplinary action to be taken against members of the Armed Forces. This recommendation is

made to the head of the agency.

**CONCLUSION**

This statute is designed to both encourage whistleblowers and protect them from reprisals. The rationale is to eliminate

fraud, waste and abuse. Violators have been and will be severely disciplined.

Many states have similar statutes, which apply to state, county, municipal and private employees. Since many units have

such employees, you should know what these statutes are and when they apply. Commanders should periodically consult

with their Labor Relations Specialists and Staff Judge Advocates for the latest developments in this area.

_**KWIK-NOTE: Employees should be encouraged to report instances of fraud, waste and abuse.**_

**RELATED TOPICS:**

**SECTION**

Civilian Employee Discipline

5-2

Evidence – Differing Standards and Burdens of Proof

8-4

Fraud, Waste and Abuse

16-7

Labor Relations

5-5

Quality Force Management Actions

24-12

_**Air National Guard Commander's Legal Deskbook**_

211

**Chapter 6, Civilian Relations**

**Table of Contents**

**Section**

6 - 1 Table of Contents

6 - 2 Military Assistance to Civilian Authorities

6 - 3 Civic Organizations

6 - 4 Community Relations Programs

6 - 5 Counterdrug Support Programs

6 - 6 Memoranda of Understanding (MOUs)

6 - 7 _Posse Comitatus_

_**Air National Guard Commander's Legal Deskbook**_

212

_**Chapter 6, Civilian Relations**_

_**Section 6-2 Military Aid to Civilian Authorities**_

_**Page 1**_

**Military Aid to Civilian Authorities**

**Updated by Captain Anthony Sykes, June 2014**

**AUTHORITY:** 18 U.S.C. § 1385; 10 U.S.C. §§ 331-334; 10 U.S.C. §§ 371-382; 42 U.S.C. § 5121 Stafford Act; DoDI

3025.21, _Defense Support of Civilian Law Enforcement Agencies_ (27 Feb 13); DoDD 3025.18, _Defense Support of Civilian Authorities (DSCA)_ (29 Dec 10, C1, 21 Sep 12); DoDD 4500.56, _DOD Policy on the Use of Government Aircraft and Air Travel_ (14 Apr 09, C1, 11 May 10); DoD 4515.13-R, _Air Transportation Eligibility_ (Nov 94, C1, 20 Oct 95); DoDD 5200.31E, _DoD Military_ _Working Dog (MWD) Program_ (10 Aug 11); AFI 10-801, _Assistance to Civilian Law Enforcement Agencies_ (19 Sep 12); AFI 10-802, _Military Support to Civilian Authorities_ (12 Apr 02); AFPD 10-8, _Air Force Support to Civil Authority_ (15 Feb 12); NGR

500-2/ANGI 10-801, _National Guard Counterdrug Support_ (29 Aug 2008); NGR 500-1/ANGI 10-8101, _National Guard Domestic Operations_ (13 Jun 08); NGR 500-3/ANGI 10- 2503, _National Guard Weapons of Mass Destruction Civil Support Team Management_ (12 Jan 06); NGR 500-4/ANGI 10- 2504, _National Guard CBRNE Enhanced Response Force Package Management,_ (16 Oct 09); NGR 500-5/ANGI 10-208, _National Guard Domestic Law Enforcement Support and Mission Assurance Operations_ (18 AUG

10); applicable state statutes and regulations. 

## INTRODUCTION

Cooperation between military and civilian authorities is highly encouraged as long as such support is consistent with the

needs of national security and military preparedness, the laws and tradition of limiting direct military involvement in ci-

vilian law enforcement activities ( _Posse Comitatus_ ), and the requirements of applicable law.

The subject of military aid to civilian authorities' off-base can be broken down into four general areas:

Direct assistance to civilian law enforcement;

Counterdrug support;

State civilian emergencies such as disasters or civil disturbances (including federal laws that authorize military personnel to aid civil authorities); and

Local civilian emergencies.

**DIRECT ASSISTANCE TO CIVILIAN LAW ENFORCEMENT**

As stated in the topic in this Deskbook entitled " _Posse Comitatus_ ," the National Guard, in state status - either Title 32 or state active duty - is not subject to the _Posse Comitatus_ Act's (18 U.S.C. 1385) prohibitions against direct military assistance to civilians in enforcing civilian law.

However, although not subject to the _Posse Comitatus_ Act, commanders need to ensure that their actions in direct aid of civilian law enforcement are authorized or permitted and are not prohibited by other federal or state statutes, directives,

or regulations. For example, even when the National Guard is in active state service, the use of military aircraft, equip-

ment or property may be subject to restrictions.

**COUNTERDRUG SUPPORT**

National Guard participation in the counterdrug support program is governed by specific authority. _See_ the topic in this _Deskbook_ entitled "Counterdrug Support Program" for a discussion of the details and issues of this program.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 6, Civilian Relations**_

_**Section 6-2 Military Aid to Civilian Authorities**_

_**Page 2**_

**STATE EMERGENCIES**

Traditionally, the National Guard has been used to aid civilian authorities during state disasters and in the control of

other emergency situations within the state. These usually require participation by the Guard for a longer duration than

that required for local emergencies discussed below. Your state probably has an emergency state plan that sets forth pro-

cedures to follow in these situations. Consult it. National Guard response to state emergencies can usually occur as a re-

sult of several different actions. The governor of the state can declare a particular situation an emergency (such as a

flood, hurricane, or riot), or a "search and rescue" can be initiated in which Guard personnel, supplies, and equipment

are needed. Normally, the governor calls up the National Guard in a state active duty status, rather than a Title 32 status, and missions are accomplished in accordance with state constitutional and statutory authority.

Many states do not authorize the use of the National Guard unless an emergency situation has been declared by the gov-

ernor. Whether persons are normally AGRs, federal technicians, state employees or traditional Guard members, your per-

sonnel office, in conjunction with the SPMO, should ensure personnel are in the proper status and receive the appropri-

ate orders before performing duty in these emergency situations. (Note: The Army Judge Advocate General has con-

cluded, based on a change in the language used in the annual National Defense Authorization Act, that there is no longer

any authority for AGRs to perform state missions. NGB/JA is preparing a proposed amendment to 10 U.S.C. 12310 to

address this problem. You should consult your staff judge advocate regarding the status of this proposed legislation.)

A person's duty status determines what they are paid, who pays them, what benefits they have if injured, and also what

protections they have from lawsuits. Persons in state active duty status are paid by the state, and receive whatever tort

liability protection they have from the state. Personnel should not be utilized for state purposes while they receive bene-

fits and pay from the federal government.

Depending on state law, it may be possible, for example, for individuals to perform their AGR/federal technician/state

employee duty in the daytime, and also perform some state active duty at night so that their full-time pay is not affected.

Although the _Posse Comitatus_ act still prohibits the use of the military for law enforcement activities, National Guard troops in Title 32 status (or state status) may be used to perform law enforcement activities such as manning traffic control points and patrolling areas for security. However, ensure that appropriate authority has been obtained before engag-

ing in these activities. _See_ NGR 500-1/ANGI 10-8101.

NGR 500-1/ANGI 10-8101 provides detailed explanations of the use of National Guard personnel and property in sup-

port of civil authorities, and is applicable when National Guard personnel are not in a Title 10 status. Note that when fed-

eral property or federal funds are used by the National Guard when responding to emergencies within a state, reimburse-

ment for the costs incurred will be required.

**LOCAL EMERGENCIES**

The use of military personnel for local civilian emergencies impacts on many areas of law which are referred to in the RE-

LATED TOPICS section below. Local emergencies may involve the possible loss of life or the extensive loss of property in

an emergency which has not been declared but which requires an emergency response. An example would be a vehicle

accident that occurs near your installation to which your installation's fire and police departments respond since you

have the shortest response time. Other situations in which military personnel may be asked to participate off-base in-

clude medical support (ambulance response) and firefighting. In rendering assistance, the key to ensuring you and your

unit members are fully protected if they are injured or negligently cause injury or property damage to others, are to deter-

mine in advance of a civilian emergency:

What acts your personnel are prohibited from doing; and

What acts your personnel are authorized or permitted to do.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 6, Civilian Relations**_

_**Section 6-2 Military Aid to Civilian Authorities**_

_**Page 3**_

Remember, although an act is not prohibited, it may not necessarily be authorized or permitted. To help you determine

what you cannot do, what you must do, and what you may do, you should review the provisions of your state emergency

plan, reciprocal fire protection agreements, hospital assistance agreements, airport joint use agreements, host-tenant

agreements, and any memoranda of understanding (MOUs) your unit has entered into with local or airport police and

fire departments and other local agencies. Also review applicable federal and state regulations governing the use of mili-

tary personnel, federal equipment and supplies. Some of these are listed in the _AUTHORITY_ section of this topic. You should ensure that applicable agreements and MOUs conform to the regulations, are kept current, and are followed in

emergency response situations. These agreements and MOUs may set forth the responsibilities, liabilities, and immuni-

ties of the parties. In emergencies requiring immediate participation of a short duration, such as off-base ambulance re-

sponses or fire-fighting, personnel responding to the emergency should usually be protected in the duty status they are

then in.

National Guard troops are usually utilized only after local authorities have been found unable to handle the situation

alone, and then only for the minimum time needed to accomplish the mission. Military support is usually designed to

supplement and not replace the civilian effort. Your state emergency response plan should contain further information

about which government agency's resources pay for the utilization of the National Guard in these situations. Remember,

assistance by the National Guard must not affect military readiness or national security. In advance of an emergency, you

should coordinate with your staff, including your judge advocate and state legal office, on the ramifications of using your

personnel in civil emergencies.

Also, be aware that new programs and new legislation may be developed concerning the use of the guard to perform the

mission of "homeland defense." Homeland defense is a new area that will combine many of the issues faced by the Na-

tional Guard when responding to state emergencies, with issues faced by the Guard in the counterdrug program. All guid-

ance in this area, whether statutory or regulatory, should be strictly construed.

_**KWIK-NOTE: Know the provisions of your state disaster preparedness emergency plans and how to protect and cover your**_

_**members who aid civilian authorities. Also, ensure that your local MOUs/MOAs with local fire departments and airports**_

_**(for example) are current.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Active State Duty

11-3

Airport Joint Use Agreements

25-2

Ambulance Response Off-Base

19-3

Counterdrug Support Program

6-5

Hospital Assistance Agreements

19-7

Installations Jointly or Solely Occupied By the ANG

25-12

Memoranda of Understanding (MOUs)

6-6

Posse Comitatus

6-7

Reciprocal Fire Protection

25-18

State ANG Headquarters

2-8

Status of National Guard Members

11-7

_**Air National Guard Commander's Legal Deskbook**_

215

_**Chapter 6, Civilian Relations**_

_**Section 6-3 Civic Organizations**_

_**Page 1**_

**Civilian Organizations**

**Updated by Captain Anthony Sykes, June 2014**

**AUTHORITY:** DoDD 5500.07, _Standards of Conduct_ (29 Nov 07); DoD 5500.7-R, _Joint Ethics Regulation (JER),_ Ch. 1-7, (17

Nov 11); 5 C.F.R. 263, _et. seq; see also_ Air Force General Law Website on Ethical Sources.

**PROHIBITIONS**

All Air Force personnel, including all commissioned officers of the Air National Guard on inactive duty for training, who

are members or officers of nongovernmental associations or organizations must avoid activities for such associations or

organizations that are not compatible with their official governmental positions. Air Force personnel must also not ac-

cept an honorary office or an honorary membership in any trade or professional association whose membership includes

business entities that are engaged or are endeavoring to engage in providing goods or services to a DoD component, in-

cluding any non-appropriated fund activity of DoD.

Air Force officials may not allow the use of their names or titles in connection with charitable or nonprofit organizations, although this prohibition does not preclude volunteer efforts on behalf of charitable or nonprofit organizations by individuals who do not use their official titles in relation to solicitations and who do not solicit from individuals or entities with whom they do business in their official capacity.

**GUIDANCE**

Questions concerning membership by Air National Guard personnel in civic and other organizations should be directed

to the base legal office and the designated agency ethics official.

_**KWIK-NOTE: Be careful: know the civic organizations in which you, as an ANG member, may and may not participate.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Fund Raising

7-2

Civil Associations and Military Corporations

22-2

Command Influence

2-2

Commercial Solicitation on Base

3-9

Community Relations Programs

6-4

Gifts From Outside Sources

7-6

Honorary Memberships

7-8

Conflicts of Interest

7-15

_**Air National Guard Commander's Legal Deskbook**_

216

_**Chapter 6, Civilian Relations**_

_**Section 6-4 Community Relations Programs**_

_**Page 1**_

**Community Relations Programs**

**Updated by Captain Anthony Sykes, June 2014**

**AUTHORITY:** DoDD 1100.20, _Support and Services for Eligible Organizations and Activities Outside DoD_ (12 Apr 04); DoDD

5410.18, _Public Affairs Community Relations Policy_ (20 Nov 01); DOD 5500.07-R, _The Joint Ethics Regulation (JER)_ , Ch. 1-7, (17 Nov 11); 5 C.F.R. 2635 _et seq; see also_ Air Force General Law Website on Ethical Sources; AFI 11-209, _Aerial Event Polices and Procedures_ (4 May 06); AFI 32-9003, _Granting Temporary Use of Air Force Real Property,_ (19 Aug 97); AFI-35-101, _Public Affairs Responsibilities and Management,_ (18 Aug 10); AFI 36-3101, _Fundraising Within the Air Force_ (12 Jul 02); ANG Supplement 1 to AFI 11-209, _Aerial Event Policies and Procedures_ (6 Mar 08, Certified Current 27 May 2010); NG Pam 360-5/

ANGP 35-1 (6 Jun 08). 

## INTRODUCTION

Community relations programs and public events promote morale and readiness and demonstrate that the military is in-

volved in the community which it supports. As such, community relations programs and events may occur on or off base.

Participation by National Guard members and units in community relations projects is essential to continued acceptance

and success of the National Guard. Parades, airshows and sporting competitions are just some of the events which might

be included in a community relations program. Please review Chapter 7, Section 13-2, and Chapter 22 for more detailed

guidance on the approval of such programs.

**APPROVAL**

Generally speaking, commanders and the state adjutants general (TAGs) may approve the use of resources under their

control for community-related events. However, certain events require the approval of higher headquarters (NGB-PA or

OASD-PA). These include:

1. International and national private organization events (Examples: AGAUS, NGAUS, and EANGUS conferences);

2. Continental United States (CONUS)-based resources taking part in events outside the United States;

3. Aerial and parachute demonstrations and equipment drops;

4. Nationally-televised sports events within the CONUS;

5. Aerial reviews and flyovers for civic-sponsored public observances of official ceremonies for Armed Forces Day, Memo-

rial Day, Independence Day, Veterans Day, and POW/MIA Day;

6. Tactical demonstrations off military installations; and

7. Other public events that require an exception to policy.

**RESTRICTIONS**

National Guard support for an event may not directly or indirectly benefit or favor any person, group, corporation (profit

or nonprofit), religion or religious sect or group, ideological movement, fraternal organization, political organization or

commercial venture, or be associated with the solicitation of votes in a political election. There are exceptions to these

general restrictions when the benefit to one of these entities is incidental to the main program, and the primary focus of

which is an advantage to the National Guard. _See_ AFI 35-101 for specific guidance.

_****_

_**Air National Guard Commander's Legal Deskbook**_

217

_**Chapter 6, Civilian Relations**_

_**Section 6-4 Community Relations Programs**_

_**Page 2**_

Remember, although an act is not prohibited, it may not necessarily be authorized or permitted. To help you determine

what you cannot do, what you must do, and what you may do, you should review the provisions of your state emergency

plan, reciprocal fire protection agreements, hospital assistance agreements, airport joint use agreements, host-tenant

agreements, and any memoranda of understanding (MOUs) your unit has entered into with local or airport police

Federal property issued to the National Guard may be provided for use and loan in conjunction with approved support to

private organizations in community relations programs, but in considering requests for loans of military material and be-

fore loaning such material, TAGs and local commanders must determine that similar material is not reasonably available

from commercial sources.

Support may not be provided in competition with commercially available services, such as photography, public address

systems, or construction equipment. Military musicians may only provide patriotic or military music, not simply enter-

tainment, such as background, dinner or dance music. Military members may not function as guards, for crowd control

or other menial duties in support of community relations public events conducted off base, nor can they be used to en-

force local law, statutes, or ordinances except as permitted in the chapter concerning " _MILITARY AID TO CIVILIAN_

_AUTHORITIES_."

Additionally, ANG units must rely to the maximum extent possible on local community programs, facilities and services

for MWR activities and other community support.

National Guard members are protected from liability by the Federal Tort Claims Act when on duty, but the authorized

duty status of members taking part in community relations programs may not be clear. For this reason, participation

should not be authorized unless the sponsor of the event provides liability insurance in an amount satisfactory to the con-

cerned TAG.

**ORIENTATION FLIGHTS**

Orientation flights in the local flying area are intended to increase understanding of particular programs related to the

roles and missions of the National Guard, not simply to improve relations and foster good will. Individuals participating

in orientation flights must meet eligibility criteria and receive approval from NGB-PA. Flights for national youth organiza-

tion members, ROTC and JROTC cadets, FAA employees and Civil Air Patrol cadets are approved by the TAG.

**COMMUNITY RELATIONS AIRLIFT**

Community leaders and employers of National Guard members and other selected civilians may be invited to travel

aboard ANG aircraft to visit military facilities. Travel outside the state requires approval by NGB-PA. The purpose of the

trips is to enhance the participants' understanding of military missions and functions.

_**KWIK-NOTE: ANG participation and support of Community Relations Programs are encouraged, but must be approved and**_

_**conducted within specified limits.** _

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Aid to Civilian Authorities

6-2

Air Shows, Flyovers and Static Displays

13-2

Fund Raising

7-2

Civic Organizations

6-3

Civilian Travel Aboard Military Aircraft

27-3

Federal Government Property Furnished to the ANG

25-10

_**Air National Guard Commander's Legal Deskbook**_

218

_**Chapter 6, Civilian Relations**_

_**Section 6-5 Counterdrug Support Programs**_

_**Page 1**_

**Counterdrug Support Programs**

**Updated by Captain Anthony Sykes, June 2014**

**AUTHORITY:** 32 U.S.C. 112; 10 U.S.C. 124, 371-380; 18 U.S.C. 1385; NGR 500-2/ANGI 10-801, _National Guard Counter-_

_drug Support_ (29 Aug 08); _National Guard Regulation 500-2/Air National Guard Instruction 10-801_ (21 Mar 01); NGR 500-1/

ANGI 10-8101, _National Guard Domestic Operations_ (13 Jun 08); and applicable state law. 

## INTRODUCTION

The involvement of the military in counterdrug and demand reduction support to civilian law enforcement agencies is an

area of high visibility. It is of utmost importance that all counterdrug support be conducted in strict accordance with ap-

plicable laws and regulations. Ensuring that the state AGR JAG is involved in all matters is critical.

The authority for National Guard involvement in this area is 32 U.S.C. 112. It basically states that the federal govern-

ment will provide funds to the governor of a state to provide support to law enforcement in the counterdrug area in accor-

dance with state law. The statutory reference to Title 10 is the basis for involvement of the active duty forces. These statutes are sometimes called "exceptions" to the _Posse Comitatus_ Act (18 U.S.C. 1385).

This topic will be limited to National Guard involvement in counterdrug support based upon 32 U.S.C. 112. Law enforce-

ment counterdrug support provided by your unit that is funded solely BY YOUR STATE (without federal government

monetary contribution) need not necessarily meet the following guidelines and only needs to comply with state law

which should be thoroughly reviewed. Furthermore, NGR 500-2/ANGI 10-801 does not apply to counterdrug support

when personnel are in a Title 10 status.

The "counterdrug coordinator," a full-time officer who is assigned to state headquarters, essentially manages the counter-

drug program at the state level. As such, very few, if any, "missions" will be tasked to individual units without coordina-

tion with the counterdrug coordinator. Nevertheless, a basic understanding of this program is important for all command-

ers because the personnel who work for the counterdrug program are your unit members and sometimes your resources

are tasked for these missions.

**THE GOVERNOR'S STATE PLAN**

Every state and territory must submit a "counterdrug support plan" annually to the Secretary of Defense, through the

National Guard Bureau, for approval and funding. The counterdrug coordinator submits the program for signature to the

governor and the attorney general, with of course, coordination and approval of the adjutant general. Your state USPFO

should also be in the coordination process.

The counterdrug support plan is extremely important. It describes what type of support your state National Guard has

been requested to provide, and intends to provide, to the federal, state and local law enforcement agencies within your

state, and the funding your state needs to provide such support. The National Guard Bureau requires that this plan be

reviewed and approved by your state attorney general (or equivalent) and governor before your state may receive any fed-

eral funds for this program. Your state attorney general (or equivalent) and governor must certify that the plan is "consis-

tent with, and not prohibited by state law."

After the plan is approved and the money is allocated, the state should provide support only for the operations for which

funding was approved or for which approval was otherwise given. This is also important since these are the operations

(and the plan) that have been approved by the attorney general and governor of your state as being consistent with, and

not prohibited by, your state's laws. However, different support may be approved by NGB on a case-by-case basis. The

_**Air National Guard Commander's Legal Deskbook**_

219

_**Chapter 6, Civilian Relations**_

_**Section 6-5 Counterdrug Support Programs**_

_**Page 2**_

information in the counterdrug support plan is only applicable to duty performed and paid for with the federal funds pro-

vided through 32 U.S.C. 112. The plan does not apply to any support your National Guard performs in a state active duty

status paid for with state funds.

**ADMINISTRATION OF THE PLAN**

As noted previously, each state has one person who is primarily responsible for counterdrug support operations; the

"Counterdrug Coordinator." This individual should be contacted if you have any questions about the counterdrug sup-

port program. This individual coordinates with the law enforcement agencies and ensures that they are supplied with

whatever personnel and/or equipment is necessary to fulfill their requests. The coordinator is responsible for ensuring

that such operations come within the bounds of law and policy. The coordinator also ensures that the military personnel

working in the counterdrug program are properly trained.

**GOVERNING POLICY**

NGR 500-2/ANGI 10-801 concerns counterdrug and demand reduction operations. One of the most important policy

considerations set forth by the National Guard Bureau is the requirement that National Guard members involved with

counterdrug support must not be involved with SEARCHES AND SEIZURES, in ARRESTING SUSPECTS or as LINKS

IN THE CHAIN OF CUSTODY OF EVIDENCE. These restrictions in many ways conform the National Guard to the

"posse comitatus" restrictions that are applicable to active duty forces. Remember, this policy consideration does not ap-

ply to state active duty paid for with state funds for nonmilitary emergencies. In such event, only your state law governs.

Remember, that the Federal Tort Claims Act does not protect members from liability when they are in a state active duty

status, however, your state may have an equivalent law.

**COUNTERDRUG SUPPORT BY NATIONAL GUARD PERSONNEL**

National Guard personnel who perform duty with the counterdrug support program must not allow this extra duty to

interfere with their drill periods or their annual training. In other words, the counterdrug support duty must be in addi-

tion to the duty they perform as members of the National Guard. Although counterdrug support may be provided during

drills and regular annual training periods as incidental to and compatible with such training, it must not interfere with

this training, and the training should not be scheduled as a subterfuge only for purposes of counterdrug support. The lat-

ter is important since counterdrug support funds may not be used for non-counterdrug support activities and non-

counter drug support funds should not be used for counterdrug support activities.

It is DOD policy that no federal or state civilian employees, military technicians, or "personnel service" contract person-

nel perform counterdrug duty pursuant to 32 U.S.C. 112.

OCONUS counterdrug support must be performed in a Title 10 status.

**URINALYSIS TESTING REQUIRED FOR PARTICIPANTS**

National Guard members that participate directly in counterdrug support operations (those personnel who would poten-

tially come in direct contact with illegal drugs) must be tested by urinalysis for drug usage upon entry on active duty. Be-

cause members are advised of this before volunteering for duty, it is suggested that this urinalysis test is deemed to be

on consent (not command-directed), so a positive result permits the recommendation of an "under other than honorable

conditions" (UOTHC) discharge. Members who participate directly in the counterdrug support program should sign

forms to acknowledge their agreement and understanding of the purposes of the urinalysis test, that it is by consent, and

the consequences of a positive result. If these forms are not available, they can be developed with the assistance of the

staff judge advocate by adapting the "Consent Form" in Attachment 1 to the topic in this _Deskbook_ entitled _"CONSENT_

_URINALYSIS TESTS"_ (Section 10-8).

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 6, Civilian Relations**_

_**Section 6-5 Counterdrug Support Programs**_

_**Page 3**_

**APPROVED OPERATIONS**

There are presently six very specific missions authorized. These operations are described in NGR 500-2/ANGI 10- 801.

Some states provide support in each of these missions and some states focus on just a few of them. These operations

range from providing translator support to the eradication of marijuana plants. You will need to examine your state plan

to verify permissible operations in your own state. This is important since the attorney general of your state will have

examined and approved only those operations submitted by your counterdrug coordinator. Those operations that have

not been approved may not be permissible under your state law even though they are permissible in other states.

Note that there is very specific guidance concerning intelligence gathering because it is extremely important that federal

guidelines in this area be followed. Special training for personnel is also required.

NGR 500-2/ANGI 10-801 also contains information on the permissible uses of property and personnel. It also contains a

valuable reference list of other related regulations and documents.

Your state plan will also contain references to, or copies of, the memoranda of understanding between various agencies

and the National Guard that are applicable to your state. Remember that the National Guard only provides support to

the various federal, state and local law enforcement agencies. Therefore, each specific activity or operation must be at the REQUEST OF A LAW ENFORCEMENT AGENCY. These memoranda of understanding must address specified areas and

be reviewed frequently for compliance with state and federal law; the state attorney general must also review them.

Interstate counterdrug operations should be conducted only after coordination between the states involved, and be based

upon written memoranda of understanding. The instruction advises, at a minimum, coordination between the counter-

drug coordinators of the involved states. Several states have passed an interstate compact that should be consulted.

**LEGAL ISSUES AND LIABILITY**

There are several legal issues that must be considered in the counterdrug support program. One of the issues is whether

your state has the authority to use its National Guard members in another state on a counterdrug support mission.

Loan and lease of federal property to other agencies is specifically addressed in NGR 500-2/ANGI 10-801; note that

leases must be at fair market value.

Property purchased with counterdrug funds will only be used for the counterdrug program although NGR 500-2/ANGI

10-801 contains exceptions.

Asset sharing with law enforcement agencies may be approved if allowed by state law. However, these funds may not be

used to augment counterdrug funding.

Aircraft cannot be used for routine aerial transportation missions or purposes that would compete with private enter-

prise.

Commander should ensure that the legal office (whether at the unit level or at the state level) is always involved in the

approval of specific missions to avoid all possible problems. Because it is such a high profile and important mission,

there is a natural tendency to want to provide all the support that is requested by civilian law enforcement. However, the

work can sometimes be very dangerous, which puts our people in jeopardy. We must always keep in mind that our peo-

ple are not trained in civilian law enforcement, and therefore avoiding dangerous situations should be a priority.

In addition, drug cases can involve a lot of litigation - litigation from which we wish to remain distant. It is also in the best interest of the National Guard to avoid lawsuits involving tort claims, not only because of the financial and potential personal liability aspects, but also because of the adverse publicity.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 6, Civilian Relations**_

_**Section 6-5 Counterdrug Support Programs**_

_**Page 4**_

NGB-JA must be advised about claims or lawsuits alleging liability of the National Guard and its members for damages

arising out of counterdrug activities, even if the claims or lawsuits seem apparently groundless. NGB-JA must also be ad-

vised about potential problems, which may lead to suppression of evidence in a criminal case. Information required by

NGB-JA includes copies of claims or complaints with supporting documents, the answer filed, and reports of the Na-

tional Guard members and law enforcement agencies involved.

Generally, the Federal Tort Claims Act covers our people while in a Title 32 status. Personnel should be covered by state

liability protection statutes while performing counterdrug support duty in a state active duty status. Since we do not

want to place our members in situations in which they might incur personal liability, and this program has such high visi-

bility, it is IMPERATIVE that the statutes, directives, regulations, National Guard Bureau policies, and your state's plan

be strictly followed. Therefore, the legal office should be integrally involved in the process before the beginning of each

operation.

Furthermore, a line of duty determination should be initiated for all injuries incurred by Title 32 or Title 10 personnel.

**WEAPONS**

National Guard personnel will not possess or use personally-owned firearms/ammunition, or any firearms/ammunition

that are not issued by the counterdrug program, while performing counterdrug duties. Carrying weapons must be specifi-

cally addressed in the state plan.

**CONCLUSION**

The military - active or Guard - in a Title 10 or 32 status may not engage in direct law enforcement activities such as

search, seizure and apprehension. The _Posse Comitatus_ Act (18 U.S.C. 1385) and 10 U.S.C. 375 prohibit these activities by Title 10 personnel inside the United States, and although the _Posse Comitatus_ Act does not apply to the National Guard in Title 32 status, NGB policy prohibits these activities by the Guard inside the United States. State law should be consulted for similar prohibitions when the Guard performs state active duty. DoD policy prohibits these activities outside

the United States.

_**KWIK-NOTE: Because this area is ever changing, close consultation with the state staff judge advocate (or your servicing**_

_**staff judge advocate) and appropriate state officials is imperative.**_

**RELATED TOPICS:**

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**SECTION**

Aid to Civilian Authorities

6-2

Arrest By Civilian Authorities

8-6

Arrests Authorized by the ANG

8-7

Lawsuits against National Guard Personnel

18-6

Personal Liability of Federal and State Officials

18-9

_Posse Comitatus_

6-7

Quarters

25-16

Urinalysis Program

10-7

State ANG Headquarters

2-8

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_**Chapter 6, Civilian Relations**_

_**Section 6-6 Memoranda of Understanding**_

_**Page 1**_

**Memoranda of Understanding ("MOUs")**

**Updated by Captain Anthony Sykes, December 2014**

**AUTHORITY:** DoDI 4000.19, _Support Agreements_ (25 Apr 13); AFI 25-201, _Intra-Service, Intra-Agency, and Inter-Agency Support Agreements Procedures_ (18 Oct 13) (particular programs may have instructions that govern the use and content of a Memorandum of Understanding).

**WHAT ARE THEY?**

Memoranda of Understanding are documents that are less formal than, and not legally binding in the same manner, as

are contracts. Like a contract, which is synonymous with the term agreement, however, a good MOU will set out all of

the mutual understandings and expectations of the parties. MOUs are different than Memorandum of Agreements

(MOAs), Mutual Aid Agreements, DD Form 1144 and other support agreements. An MOU does not have to be written

by the judge advocate (JAG), but should be coordinated with the JAG to ensure that the language is clear and unambigu-

ous and does not propose or promise anything contrary to instruction or law. For example, the ANG cannot commit itself

to blanket "hold harmless" agreements in either contracts or MOUs whereby the ANG assumes liability for not only it-

self but for the other parties.

**WHAT SHOULD THEY ADDRESS ?**

MOUs should clearly address the items detailed in DoDI 4000.19, Enclosure 3, Figure 2, Sample MOU Template. Among

other issues, MOUs can address training issues, equipment use, responsibility for injured personnel or damaged property

(usually within the government each agency accepts responsibility for its own personnel and property, however), com-

mand and control issues, public affairs responsibilities, and liability to others.

**WHEN ARE THEY USED?**

MOUs typically are used between entities that cannot sue one another, such as the Air National Guard and another fed-

eral or state agency. They may also be used between the Air National Guard and other entities to express intent but not

to establish a binding legal obligation. The situations in which MOUs can be used are not limited, since one of their pur-

poses is to promote understanding between and among entities. Your JAG can tell you whether an MOU is the appropri-

ate document to use, or whether a contract, MOA or other instrument would be more appropriate.

Many programs require agreements between agencies, such as the National Guard Counterdrug Program, and many in-

structions set forth specific requirements for the content and approval of such agreements. Always ensure that appropri-

ate guidance is consulted to determine whether a MOU is required or to determine what must be addressed.

_**KWIK-NOTE: Use MOUs when there is a need to clarify relationships, but no need to bind the parties.**_

**RELATED TOPICS:**

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**SECTION**

Aid to Civilian Authorities

6-2

_Posse Comitatus_

6-7

Criminal Investigations, Prosecutions and Reporting - DoD AND DoJ

8-12

Relationship with Other Military Components

11-6

Aircraft Accidents and Safety Investigations Off-Base

16-2

Preventive Law Program

17-15

Ambulance Response Off-Base

19-3

Hospital Assistance Agreements

19-7

_**Air National Guard Commander's Legal Deskbook**_

223

_**Chapter 6, Civilian Relations**_

_**Section 6-7 Posse Comitatus**_

_**Page 1**_

_**Posse Comitatus**_

**Updated by Captain Anthony Sykes, June 2014**

**AUTHORITY:** 18 U.S.C. § 1385; 10 U.S.C. §§ 331-334; 10 U.S.C. §§ 371-382; DoDI 3025.21, _Defense Support of Civilian_ _Law Enforcement Agencies_ (27 Feb 13); DoDD 3025.18, _Defense Support of Civilian Authorities (DSCA)_ (29 Dec 10, C1, 21 Sep 12); DoD 4515.13-R, _Air Transportation Eligibility_ (Nov 94, C1, 20 Oct 95); DoDD 5200.31E, _DoD Military Working Dog_ _(MWD) Program_ (10 Aug 11); AFI 10-801, _Assistance to Civilian Law Enforcement Agencies_ (19 Sep 12); AFI 10-802, _Military_ _Support to Civilian Authorities_ (12 Apr 02); AFPD 10-8, _Air Force Support to Civil Authority_ (15 Feb 12); NGR 500-1/ANGI 10-8101, _National Guard Domestic Operations_ (13 Jun 08); NGR 500-5/ANGI 10-208, _National Guard Domestic Law Enforcement Support and Mission Assurance Operations_ (18 AUG 10). 

## INTRODUCTION

This topic of the _Deskbook_ deals with posse comitatus in general, and those circumstances to which the _Posse Comitatus_ Act ("PCA") does not apply. This subject is also referenced in the topics entitled " _COUNTERDRUG SUPPORT PROGRAM_ "

and _"MILITARY AID TO CIVILIAN AUTHORITIES._ " The topic entitled " _AIRCRAFT ACCIDENTS AND SAFETY INVESTIGA-_

_TIONS OFF-BASE"_ in this _Deskbook_ discusses the _Posse Comitatus_ Act as it relates to preserving evidence at a crash site for the safety investigation.

Although the _Posse Comitatus_ Act (PCA) restricts use of the active duty military (see below) for civilian law enforcement purposes, it does not preclude all military support to civilian law enforcement agencies. This outline summarizes some

of the types of support that may and may not be provided. Violations of the act can result in a fine, imprisonment, the

suppression of evidence, or the release of the accused (although the exclusionary rule has not generally been applied in

this context).

**BACKGROUND**

The term " _posse comitatus_ " is best defined with the familiar concept of the posse gathered by the frontier sheriff to track down and apprehend a criminal. The translation is "the power of the county." The legal definition of _posse comitatus_ describes a group of people, taken from the population of the county over the age of 15, who, under the authority of a sher-

iff or police, are engaged in the search and arrest of a criminal. An important aspect of the definition is that the posse

comitatus has the authority of search and arrest.

The _Posse Comitatus_ Act is the common name of 18 U.S.C. 1385, "Use of Army and Air Force as _Posse Comitatus_." It provides:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act

of Congress, willfully uses any part of the Army or Air Force as a _posse comitatus_ , or otherwise to

execute the laws, shall be fined not more than $10,000.00, imprisoned not more than two years, or both.

The statute was originally enacted in 1879 during the Reconstruction Era to eliminate the direct use of federal troops by

civil authorities to police state elections in ex-Confederate states where civil power had been restored. It was Congress'

reaction to the excessive use of federal troops which undermined Congress' policy of re-uniting the war-torn country and

guaranteeing all races the right to vote.

**TO WHOM IT APPLIES**

The statute applies to the active component (Title 10) Air Force, Army, and Reserves; and to the National Guard while in

Title 10 (federal) service. The Navy and Marines, pursuant to DODI 3025.21, also adhere to the statute. The statute does

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_**Chapter 6, Civilian Relations**_

_**Section 6-7 Posse Comitatus**_

_**Page 2**_

not apply to the Coast Guard or to the National Guard while in Title 32 (state) status, because such personnel do not fall

within the definition of "Army" in 10 U.S.C. 3062. The statute also does not apply when the National Guard is perform-

ing active state service pursuant to state law.

Remember that the non-applicability of the _Posse Comitatus_ Act to the National Guard in Title 32 status or while on state active duty does not end the matter. Although the PCA states what is prohibited, and its various case law interpretations

discuss what activities are prohibited and not prohibited, "NOT PROHIBITED" DOES NOT NECESSARILY MEAN

"PERMISSIBLE" OR "AUTHORIZED." THIS IS A CRUCIAL DISTINCTION.

**TO WHAT IT APPLIES**

The statute generally prohibits the direct involvement of active duty forces in assisting civilian law enforcement officials in enforcing civilian laws, except when authorized by the U.S. Constitution or another federal statute. The statute prohibits active duty personnel from:

Pursuing and arresting civilians even though they have committed crimes; and

Any active or direct assistance to civilian law enforcement officials to enforce civilian law (such as interdiction of a vehicle, vessel, aircraft, or other similar activity; a search or seizure; an arrest, apprehension, stop and frisk, or similar activity; and use of military personnel for surveillance or pursuit of individuals, or as undercover agents, informants, investigators, or interrogators). _See_ DODI 3025.21.

Three different tests have been applied by the courts to determine whether the use of military personnel has violated the

PCA:

1. Whether the action of military personnel was "active" or "passive." _See_ _United States v. Red Feather,_ 392 F. Supp. 916 at 921 (W.D.S.D 1975).

2. Whether armed forces personnel's involvement in the activities of civilian law enforcement officials was "pervasive."

_See Hayes v. Hawes,_ 921 F.2d 100 (7th Cir. 1990).

3. Whether military personnel subjected citizens to the exercise of military power which was either regulatory, proscrip-

tive, or compulsory. _See_ _United States v. Kahn_ , 35 F.3d 426 (9th Cir. 1994).

**WHAT IS NOT PROHIBITED and/or EXCEPTIONS TO PCA**

1. PCA does not prohibit military personnel, who are permitted to patrol areas outside a military base, from removing

military members from situations which could involve violations of civilian law.

2. PCA does not prohibit military personnel from actively pursuing and arresting military members.

3. PCA does not prohibit military personnel, pursuant to the inherent authority of the commander, from executing laws

on a military base when the action is necessary to effect a military purpose, such as the protection of military personnel

or property.

4. PCA does not prohibit military personnel from detaining civilians on military bases who violate laws while on such

bases, and summoning and awaiting the arrival of civilian authorities who are the only ones authorized to arrest or appre-

hend the civilian violator. (Advise security policemen to choose their words carefully, both orally and in written reports,

and to avoid terms like "arrest" and "apprehension;" use "detain" instead).

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_**Chapter 6, Civilian Relations**_

_**Section 6-7 Posse Comitatus**_

_**Page 3**_

5. PCA does not prohibit military personnel from engaging in passive activities (such as traffic control, the passive use of observers, the loan of military equipment, and the use of military installations and facilities in the normal course of military activities) in aid of civilian law enforcement.

6. PCA does not prohibit military personnel from participating in humanitarian acts, such as the search for a lost child,

search and rescue, and disaster relief. However, the true purpose must be humanitarian, and must not be a subterfuge to

disguise prohibited activities under the statute.

7. PCA does not prohibit off-duty conduct, unless it is induced, required, or ordered by military officials to whom the

statute otherwise applies.

8. It is not a violation of the PCA for civilians to receive an incidental benefit from some of the military activities de-

scribed above (Military Purpose Doctrine) when the primary purpose of the activity was to further a military interest.

9. PCA does not prohibit military personnel from protecting classified military information or equipment, DoD person-

nel, DoD equipment, and official guests of the DoD, or other acts that are undertaken primarily for a military or foreign

affairs purpose.

10. The use of DoD personnel in civil disturbances is governed by DoDD 3025.12, which details special approval/

coordination requirements for that type of support. Military resources may be employed in support of civilian law en-

forcement operations in the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and the U.S. territo-

ries and possessions. Any employment of military forces in support of law enforcement operations shall maintain the pri-

macy of civilian authority.

11. DoDD 3025.15 governs all DoD military assistance provided to civil authorities within the 50 States, District of Co-

lumbia, Puerto Rico, U.S. possessions, and territories, and provides criteria for evaluating all requests for support. Mat-

ters to be considered include the legality and lethality of the mission, its cost, and whether the mission impacts DoD's

ability to perform its own missions.

12. The Secretary of Defense has reserved the authority to approve DoD support for civil disturbances, responses to acts

of terrorism, and support that will result in a planned event with the potential for confrontation with specifically identi-

fied individuals or groups, or which will result in the use of lethal force.

13. The Insurrection Act, 10 U.S.C. §§ 331-334, permits the President to use the armed forces to enforce the law to pre-

vent the loss of life or wanton destruction of property or to restore governmental functioning, in cases of civil distur-

bances, if the duly constituted local authorities are unable to control the situation and circumstances preclude obtaining

prior Presidential authorization, or when duly constituted state or local authorities are unable or decline to provide ade-

quate protection for federal property or functions. However, the overarching policy of providing support to civilian offi-

cials should always be kept in mind. Active duty military personnel (other than Security Forces or similar personnel) are

not trained in law enforcement. National Guard personnel may receive some law enforcement training. When possible,

law enforcement duties should be left to state and local law enforcement authorities and military forces reserved for

tasks suitable to their training.

14. Loan/Lease of Military Equipment to Civilian Law Enforcement. Civilian law enforcement officials often request the

loan of military equipment during civil disturbance operations. In light of the DoD goal to minimize the military pres-

ence in such operations, this practice is viewed as an effective means of accomplishing that goal. The details of providing

this support to civilian authorities is discussed in " _MILITARY AID TO CIVILIAN AUTHORITIES_ " in this _Deskbook_.

15. Exercise of Authority over Civilians. Military personnel do have the authority to detain or take into custody rioters,

looters, or others committing offenses, when necessary or in the absence of civilian police. Generally, however, searches

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_**Chapter 6, Civilian Relations**_

_**Section 6-7 Posse Comitatus**_

_**Page 4**_

should be conducted by civilian law enforcement because of their greater familiarity with search and warrant procedures.

16. Because military working dogs (MWD) qualify as "equipment" and are thus subject to loan to civilian law enforce-

ment agencies, DoD policy requires requests for military working dog support, if approved, to be filled with dogs and

their handlers. MWD support may only be provided under circumstances that preclude confrontation between the mili-

tary working dog team (MWDT) and civilian search subjects. Accordingly, MWDT's providing civilian law enforcement

support may not be used to search or track people, to seize or retrieve evidence, to search buildings or other areas for personnel, or to pursue, bite, and hold, or in any way assist in apprehending, arresting, or detaining persons. See DoDD

5200.31E.

Remember that military personnel cannot execute or aid civilian authorities in executing civilian laws, directly or ac-

tively, except in certain very limited circumstances. PCA does not prohibit the use of federal property for such purposes,

but be careful because other statutes or regulations may prevent the use of federal property for such purposes.

NGR 500-1/ANGI 10-8101 provides detailed explanations of the use of National Guard personnel and property in sup-

port of civil authorities, and is applicable when National Guard personnel are not in a Title 10 status. Remember, when

federal property is used by the National Guard in responding to emergencies within a state, reimbursement for the costs

incurred are required.

Note - Several recent Department of Defense Directives, Instructions and Air National Guard Instructions have been is-

sued regarding the area of posse comitatus. See Chapter Authorities listed above. These include preplanning for posse

comitatus operations by your state joint force headquarters. Consult your JAG before beginning any posse comitatus op-

erations.

_**KWIK-NOTE: Remember that the non-applicability of the Posse Comitatus Act to the National Guard in Title 32 status or**_

_**while on state active duty does not end the matter. Although the PCA states what is prohibited, and the various case law in-**_

_**terpretations discuss what activities are prohibited, "NOT PROHIBITED" DOES NOT NECESSARILY MEAN "PERMISSI-**_

_**BLE" OR "AUTHORIZED."**_

**RELATED TOPICS:**

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**SECTION**

Aid to Civilian Authorities

6-2

Counterdrug Support Program

6-5

Aircraft Accidents and Safety Investigations Off-Base

16-2

_**Air National Guard Commander's Legal Deskbook**_

227

**Chapter 7, Ethics**

**Table of Contents**

**Section**

7 - 1 Table of Contents

7 - 2 Fundraising

7 - 3 Ethics and Standards of Conduct

7 - 4 Professional and Unprofessional Relationships

7 - 5 Gambling, Lotteries, and Raffles

7 - 6 Gifts from Outside Sources

7 - 7 Gifts among Employees

7 - 8 Honorary Memberships

7 - 9 Off-Duty Employment

7 - 10 Organizational Emblems, Symbols and Names

7 - 11 Outside Employment of Spouses

7 - 12 Political Activities

7 - 13 Job Hunting and Post Government Employment

7 - 14 OGE Form 450: Statement of Affiliations and Financial Interests

7 - 15 Conflicts of Interest

7 - 16 Support of Non-Federal Entities

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 7, Ethics**_

_**Section 7-2 Fundraising**_

_**Page 1**_

**Fundraising**

**Updated by Colonel Monique J. DeSpain, December 2014**

**AUTHORITY:** 5 C.F.R. 2635.808 _et. seq_.; 5 C.F.R. 735.201; 5 C.F.R. Part 950; 32 U.S.C. 508; DoD 5500.07-R, _Joint Ethics_ _Regulation (JER),_ Chapters 2 & 3 (30 Aug 93, C4, 6 Aug 98, C7, 17 Nov 2011); DoDD 5410.18, _Public Affairs Community_ _Relations Policy_ (20 Nov 01); DoDI 5035.01, _Combined Federal Campaign (CFC) Fund- Raising Within the Department of Defense_ (31 Jan 2008); DoDI 1344.07, _Personal Commercial Solicitation on DoD Installations_ (30 Mar 2006); AFI 34-223, _Private Organization Program_ (8 Mar 07, C1, 30 Nov 2010), ANG SUP 1 (1 Apr 08); DoDI 1000.15, _Procedures and Support for Non-Federal_ _Entities Authorized to Operate on DoD Installations_ (24 Oct 2008); AFI 36-3101, _Fundraising Within the Air Force_ (12 Jul 02); _see_ _also_ The U.S. Department of Defense Standards of Conduct Office at http://www.dod.mil/dodgc/defense_ethics/.

**INTRODUCTION** ****

One of the most frequently encountered standards of conduct issues is the extent to which individuals and groups can

conduct fundraising activities on Air Force and Air National Guard installations. In dealing with these issues, command-

ers and JAG officers face complex rules and diverse requests. The analysis is also complicated by the installation com-

mander's authority to control activities on the installation, the commander's personal views about fundraising activities,

the status of the organization and participants, and the ends to be served by the fundraising.

**DEFINITION**

Basically, "fundraising" is the solicitation of funds from military and civilian personnel for contribution to nonprofit private organizations, other than political organizations, through the requesting of monies or sale of items or services. Fund-

raising does not include gambling activities. Collection boxes for toys, clothing, canned goods, etc. in public areas are not considered "fundraising" and can be approved by the installation commander. _See_ U.S. Office of Government Ethics

Memorandum 93 x 19 (25 Aug 93).

It is important to distinguish between the three types of fundraising, to understand how the location of the fundraising

impacts the decision, and to understand the military status of the individuals or groups that propose to conduct the fund-

raising.

**GENERAL RULES**

Before any group (to include squadron booster clubs, private organizations, unit advisory councils, etc.) engages in a

fundraising activity, either on or off-base, prior approval must be obtained from the installation commander or his desig-

nee. Fundraising by private organizations (POs) and Unofficial Activities/Organizations (UAOs) is limited. POs and

UAOs may not engage in continuous resale or operate amusement or slot machines. However, the installation com-

mander (or his designee, the Services Squadron Commander/Division Chief) may authorize continuous thrift-shop sales

operations and occasional sales for fundraising purposes such as bake sales, dances, carnivals, car washes, and similar

occasional functions. "Occasional" is defined as not more than two (2) per calendar quarter. The prohibition against fre-

quent or continuous resale activities does not preclude collective purchasing and sharing of purchased items by members

of POs or UAOs so long as there is no actual resale. The "occasional sales" limitation does not apply to PO sales of unit

souvenirs or memorabilia to members of a unit, provided AAFES and Services resale activities elect not to provide this

service and the PO chartering documents authorize this sort of resale. POs and UAOs cannot sell or serve alcoholic bever-

ages. UAOs cannot conduct games of chance, lotteries, raffles, or other gambling type activities under any circumstances.

Rules that address particular forms of fundraising are set forth in Table 1 and the accompanying notes of AFI 36-3101.

**TYPES OF FUNDRAISERS:**

There are three types of fundraising: official fundraising, unofficial fundraising, and employee organization welfare funds. _****_

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_**Chapter 7, Ethics**_

_**Section 7-2 Fundraising**_

_**Page 1**_

**OFFICIAL FUNDRAISING**

Official fundraising ("on-the-job fundraising solicitation") includes officially endorsed campaigns conducted during duty

hours by government personnel in their official capacities. The basic rule is that individuals who are asked to participate

in a fundraising activity in an official capacity may do so only in accordance with a statute, executive order, regulation, or as part of their official duties. The authority to officially participate in fundraising activities is very limited: official support for a private fundraiser is not authorized unless you can find specific authority that permits it.

Essentially, the only two authorized on-the-job campaigns for the Air National Guard are the Combined Federal Cam-

paign (CFC) and the Air Force Assistance Fund (AFAF). Dollar goals may be established for installations, activities, and

units to support the CFC and AFAF, as long as individual confidentiality is maintained. However, 100 percent participa-

tion goals and individual goals, quotas, or assessments are prohibited. For these causes, employees may use government

time, equipment and supplies. These fundraising efforts may be officially endorsed and employees may use their govern-

ment title and organization in support of these efforts. It is important to understand the term "participate in fundrais-

ing." According to 5 CFR 2635.808(a), it refers to active and visible participation in the promotion, production, or pres-

entation of the event and includes serving as honorary chairperson, sitting at the head table during the event, and stand-

ing in a reception line. The term does not include mere attendance at an event, provided the employees' attendance is

not used by the organization to promote the event.

To "participate in fundraising" also includes public speaking at an event. However, an "official speech" is permissible if

related to the speaker's official duties, the forum is appropriate for the dissemination of this information, and the

employee/speaker does not request donations or other support for the nonprofit organization. Remember that JER sec-

tions 3-209 and 3-210 prohibit DoD employees from endorsing or appearing to endorse non- federal entities or their

fundraising efforts unless the organization is listed in JER section 3-210(a). Although the dissemination factual informa-

tion concerning private organizations is permitted, endorsing the organization is not.

Note: Also examine the rules set forth in the _Deskbook_ , Section 7-16, _Support of Non-Federal Entities_ , for a more in-depth examination of charitable fundraising support by the government and the rules on individual fundraising.

**UNOFFICIAL FUNDRAISING**

Unofficial fundraising ("off-the-job fundraising solicitations") includes non-officially endorsed solicitation of Air Force

personnel, for funds, by individuals or private organizations, away from their workplace (including quarters on a military

installation, entrances, lobbies, or concourses of buildings). Basically, if the funds raised will go to an organization other than AFAF or CFC, then the event or effort is "unofficial fundraising." ( _See_ DoD/GC Ltr, 14 Mar 96, para 2; 5 C.F.R.

2635.808(b)).

Unofficial fundraising solicitation conducted by ANG members must be done in their personal capacity, away from the

duty section, and in a non-duty status. (JER section 3-300a) AFI 36-3101 contains a useful table (Table 1) to help mete

out the varying forms of acceptable fundraising activities. ANG members must not use office supplies, such as postage,

paper, or other equipment in support of the fundraising activities. They can use official channels to notify other Guard

members of the event as long as the notification does not appear to be an endorsement. (JER section 3-208, 3-209; 5

C.F.R. 2635.702(c); DoD/GC Ltr, 28 May 96). A commander should take care not to grant fundraising requests unless he

or she is willing to provide the same support to comparable events sponsored by similar non-federal entities.

Base-affiliated private organizations, while they have greater flexibility in fundraising, must comply with Air Force and

DoD regulations. For example, private organizations cannot solicit funds for their organizations on-base and may not en-

gage in frequent or continuous resale activities. Occasional bake sales are permissible. Furthermore, they cannot conduct

games of chance, lotteries, or raffles.

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_**Chapter 7, Ethics**_

_**Section 7-2 Fundraising**_

_**Page 2**_

Off-base fundraising by base-affiliated private organizations must not discredit DoD or create problems for the local com-

munity. Any solicitations must clearly indicate they are for a private organization and not for the base or any official part of the Air Force. Donor gift recognition may not be made publicly. These organizations cannot make it appear as if the

installation is endorsing them or giving them special treatment. If they violate the rules, the commander can revoke their

privilege to operate on base.

Even those organizations with special relationships (Girl Scouts, Civil Air Patrol, and American Red Cross) pursuant to

statute or regulations do not necessarily have an advantage over other private organizations when it comes to fundrais-

ing. Unless a particular statute gives guidance concerning fundraising, use the JER section 3- 211(b) analysis for their

fundraising.

**FUNDRAISING FOR AND BY EMPLOYEE ORGANIZATION WELFARE GROUPS**

The JER also recognizes fundraisers by employee organization welfare funds. To fall under this category, the event must

satisfy the following three conditions:

1. The fundraising is by an organization composed primarily of DoD employees (military or civilian) or their dependents;

2. The fundraising is conducted among the members of the organization, and

3. The fundraising is for the benefit of a welfare fund for the members of the organization or their dependents.

(JER section 3-210(a) (6); DoD Instruction 5035.01; Executive Order 12353, _Charitable Fund-Raising,_ 47 F.R. 12785 (23

Mar 82), para 7). This includes most morale, welfare, and recreation programs, regardless of funding. The rules on fund-

raising for employee organization welfare funds are generally the same as for "unofficial" fundraisers. Use of government

resources is still limited and must be done in an off-duty status. However, the employees under this category are allowed

to officially endorse fundraising for their welfare funds. (JER section 3- 210(a) (6)). Fundraising events for employee or-

ganization welfare funds are not allowed during CFC or AFAF if they will be held "at the workplace" ( _e.g.,_ in offices, han-gars, flight line or other places where people actually work). However, if the event is held "away from the workplace"

( _e.g._ , in lobbies or concourses of buildings or in other areas where people generally are not working), then the event can be approved if it will not detract from CFC or AFAF. (AFI 36-3101, para 13.3, Rules 3 & 4 of Table 1). Control over on-base activities falls squarely within the installation commander's authority to maintain good order and discipline on

base.

Off-base fundraising by these groups must not discredit DoD or create problems for the local community. Any solicita-

tions must clearly indicate they are for a private organization and not the base or any official part of the Air Force. Donor gift recognition may not be made publicly. These organizations cannot make it appear as if the installation is endorsing

them or giving them special treatment. If they violate the rules, the commander can revoke their privilege to operate on

base.

**PERSONAL FUNDRAISING**

Whether on or off a military installation, a federal employee may not (1) personally solicit funds or other support from a

subordinate or from any person known to the employee to be a prohibited source (as defined in 5 C.F.R. 2635.203(d)),

or (2) use or permit the use of his or her official title or any authority associated with public office to further the fundraising effort, unless for official organizations recognized above. Personal solicitation is defined as one-on-one contact or the use of one's name in correspondence or permitting its use by others. Mass-produced correspondence is permissible in

some situations as long as it is not "targeted" at prohibited sources or subordinates.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 7, Ethics**_

_**Section 7-2 Fundraising**_

_**Page 3**_

_**KWIK-NOTE: Before any group (to include squadron booster clubs, private organizations, unit advisory councils, etc.) en-**_

_**gages in a fundraising activity, either on or off-base, prior approval must be obtained from the installation commander or**_

_**designee.**_

**RELATED TOPICS:**

**SECTION**

Commercial Solicitation on Base

3-9

Ethics

7-3

Gambling, Lotteries, and Raffles

7-5

Support of Non-Federal Entities

7-16

MWR Programs, Activities and Facilities

22-3

_**Air National Guard Commander's Legal Deskbook**_

232

_**Chapter 7, Ethics**_

_**Section 7-3 Ethics and Standards of Ethical Conduct**_

_**Page 1**_

**Ethics and Standards of Ethical Conduct**

****

**Updated by Colonel Monique J. DeSpain, December 2014**

**AUTHORITY:** DoD 5500.7-R, _Joint Ethics Regulation (JER)_ (30 Aug 93, Change 4, 6 Aug 98, Change 5, 25 Oct 05, Change 6, 23 Mar 06, 17 Nov 11, Change 7); 5 C.F.R. 2635 _et. seq; see also_ the United States Office of Government Ethics website at http://www.usoge.gov/ and The U.S. Department of Defense Standards of Conduct Office at

http://www.dod.mil/dodgc/defense_ethics/.

**ETHICS/ STANDARDS OF ETHICAL CONDUCT**

Civilian employees and members of the armed forces hold unique positions in the federal government: public service is

often equated with holding the public trust. This means federal employees must place the interests of the United States

above their own personal interests or private gain.

For many years, each agency within the executive branch of the federal government had its own set of rules concerning

ethical standards of conduct. By direction of President Bush, a commission of Federal Ethics Law Reform was put to-

gether to review all those regulations governing ethics. The Commission found more than one hundred different and of-

ten conflicting federal agency regulations. Accordingly, the Commission decided to consolidate all these regulations into

one set of rules governing all Department of Defense (DoD) employees. Thus was born the Joint Ethics Regulation (JER)

in 1993. It applies to all DoD personnel: active duty, civilian, political appointees, reserve and guard members, part-time

consultants, and even retired personnel. [Change 3 made the JER applicable to ANG and Reservists]. In sum, the JER is

the single source of guidance on standards of ethical conduct and ethics guidance for DoD, serving as a complement to

all other federal law already in existence.

Every federal executive agency has a Designated Agency Ethics Official (DAEO), who administers the provisions of the

Ethics in Government Act of 1978. Within DoD, the responsibility for standards of conduct is as follows: The DAEO for

DoD is the DoD General Counsel (DoD/GC). The DAEO for the Air Force is the SAF General Counsel (SAF/GC). Guid-

ance to the field is provided through MAJCOMs and NAFs to installation staff judge advocates, who act as ethics counsel-

ors for their respective commanders. Commanders are responsible for ensuring that the standards of conduct principles

are factored into day-to-day decisions and enforced consistently throughout the unit.

Point of confusion: Prior to publishing the JER, the Office of Government Ethics (OGE) published in 1992, "The Stan-

dards of Ethical Conduct for Employees of the Executive Branch," which is now codified in 5 C.F.R. § 2635. The OGE's

Standards of Conduct applied only to officers and civilian employees. However, in August of 1993 DoD published the

JER to govern all ethical issues. Thereafter, changes limited the applicability of the JER to Title 32 members. There is no

Air Force "standards of conduct" instruction equivalent to the JER because the JER cannot be supplemented without

DoD/GC approval. However, some JER issues are addressed tangentially in various Air Force instructions.

In the "General Policy" section of the JER, specifically paragraph 1-300(B), the following is set forth as "DoD policy:"

"Although OGE regulations, reprinted in this Regulation, do not apply to enlisted members of the Uniformed Services or

Title 32 National Guard Members, the provisions of 5 C.F.R. 2634 (reference (m)) in subsection 7-100, below, 5 C.F.R.

2635 (reference (d)) in subsection 2-100, below, 5 C.F.R. 2638 (reference (g)) in subsection 11-100, below, 5 C.F.R. 2640

(reference (o)) in subsection 5-200, below, and 5 C.F.R. 2641 (reference (p)) in subsection 9-200, below, are hereby de-

termined to be appropriate for, and are made applicable to, enlisted members of the Uniformed Services and Title 32 Na-

tional Guard Members to the same extent that these regulations apply to officers of the Uniformed Services. The follow-

ing exception applies:

(1) Certain criminal statutes, 18 U.S.C. 203, 205, 207, 208, and 209, (reference (i)), and related provisions of OGE

_**Air National Guard Commander's Legal Deskbook**_

233

_**Chapter 7, Ethics**_

_**Section 7-3 Ethics and Standards of Ethical Conduct**_

_**Page 2**_

regulations, do not apply to Title 32 National Guard Members or enlisted members of the Uniformed Services. Provi-

sions similar to those of sections 208 and 209 of reference (i) apply to enlisted members of the Uniformed Services and

Title 32 National Guard Members as follows:

(a) Except as approved by the DoD Component DAEO, or designee, a Title 32 National Guard Member and an enlisted

member of the Uniformed Services, including an enlisted special Government employee, shall not participate personally

and substantially as part of his official DoD duties, in any particular matter in which he, his spouse, minor child, partner, entity in which he is serving as officer, director, trustee, partner, or employee, or any entity with which he is negotiating or has an arrangement concerning prospective employment, has a financial interest;

(b) A Title 32 National Guard Member and an enlisted member of the Uniformed Services, except an enlisted special

Government employee, shall not receive any salary or supplementation of his federal government salary, from any entity

other than the federal government or as may be contributed out of the treasury of any State, county, or municipality, for

his services to the federal government."

In other words, although the JER applies to Guard members on Title 10 status to the same extent as those on active duty

only certain criminal sections apply to Title 32 Guard members. Specifically the Standards of Ethical Conduct (section 2-

100); non-applicability of criminal statutes unless the member uses his or her official military position to influence mat-

ters where the member has a family or company financial interest ( _e.g.,_ sections 5-100, 5-200); financial disclosure forms for 0-7s on Title 10 orders in excess of 60 days (section 7-100); post-government employment for those who left before

1991 (section 9-200); and the applicability of the ethics training programs (section 11-100).

Even a Title 32 member can be prosecuted for federal public integrity violations if they participate personally and substan-

tially in any matter in which the member, their spouse or child, partner or business has a financial interest. Nor may the

member personally and substantially participate, as part of his or her DoD duties, with any entity with which the mem-

ber is negotiating or has an arrangement concerning prospective employment without subjecting themselves to prosecu-

tion. (JER sections 5-301; 8-200).

As noted, Title 32 members are also prohibited from receiving any salary or supplementation of his federal government

salary, from any entity other than the federal government or as may be contributed out of the treasury of any State,

county, or municipality, for his services to the federal government. (JER section 5-404).

In change 6, 23 Mar 06, the JER establishes guidance on personal acceptance of gifts from non-federal entities. It speci-

fies that enlisted members of the Reserve on inactive duty for training and all members of the National Guard who meet

the criteria at subsection 3-401.b. and family members of such members, may accept unsolicited gifts from non-federal

entities in accordance with certain rules in JER section 3-400.

Furthermore, a DoD Employee, as defined in paragraph 1-209, includes:

1. Any active duty Regular or Reserve military officer, including warrant officers.

2. Any active duty enlisted member of the Army, Navy, Air Force, or Marine Corps.

3. Any Reserve or National Guard member on active duty under orders issued pursuant to Title 10, United States Code.

4. Any Reserve or National Guard member while performing official duties or functions under the authority of either Ti-

tle 10 or Title 32, United States Code, or while engaged in any activity related to the performance of such duties or func-

tions, including any time the member uses his Reserve or National Guard of the United States title or position, or any

authority derived therefrom.

_**Air National Guard Commander's Legal Deskbook**_

234

_**Chapter 7, Ethics**_

_**Section 7-3 Ethics and Standards of Ethical Conduct**_

_**Page 3**_

Paragraph 1-216 defines the "Head of DoD Component Command or Organization," as "a commander, commanding offi-

cer, or other military or civilian DoD employee who exercises command authority within a DoD Component." It further

states that for purposes of JER sections 3-210(a)(6), 3-210(a)(7), and 3-211, the adjutant general of each State and terri-

tory is the "Head of a DoD Component command or organization" regarding National Guard facilities, resources, and

personnel of that State or territory.

Paragraph 1-224 defines a "Reserve Military Officer," as "an individual who currently holds an appointment in the Re-

serve of a Military Department, or is a military officer of the National Guard with Federal Government recognition."

Therefore, all guard members are advised to avoid the appearance of impropriety in their actions.

The overall goal of the JER is to avoid two things: improper actions and improper appearances. In a perfect world, ethical

dilemmas would fall into nice neat categories, with clear-cut guidelines and easy answers. Unfortunately, ethical ques-

tions are extremely difficult to research, categorize, and answer. Common sense and the ability to research the regulation

prove of even greater value as one endeavors to answer "ethical" questions. Because the JER does not lend itself to sum-

marization, frequently encountered issues are set forth in the remaining subsections of Chapter 7. Contact your staff

judge advocate for assistance in handling these complex issues.

_**KWIK- NOTE: Public service is a public trust; as such, employees of the government must place the interests of the**_

_**United States above their own personal interests or private gain. Every request for action must be reviewed against the**_

_**backdrop of the government's ethical canons.**_

_**Air National Guard Commander's Legal Deskbook**_

235

_**Chapter 7, Ethics**_

_**Section 7-4 Fraternization and Professional Relationships**_

_**Page 1**_

**Fraternization and Professional Relationships**

**Updated by Lt Col Monique J. DeSpain, October 2010**

**AUTHORITY:** AFI 36-2909, _Professional and Unprofessional Relationships_ (1 May 99); DoD 5500.7-R _Joint Ethics Regulation_ _(JER)_ ; Manual for Courts-Martial, Article 134; OpJAGAF 1996/144; OpJAGAF 1996/88; OpJAGAF 1996/61; TJAG Policy

Memorandum: Civil Law - 1 (17 Aug 05). 

## INTRODUCTION

Most violations of the Air Force policy on professional relationships stem from inexperience or unfamiliarity with the pol-

icy. Consequently, on 1 May 1999, the revised AFI 36-2909 went into effect. This revision was the result of a SECDEF

memorandum directing the services to adopt uniform, clear, and readily understandable policies regarding good order

and discipline and professional relationships. It applies to all active duty, reserve, and Air National Guard members.

**WHY SHOULD COMMANDERS CARE ABOUT PERSONAL RELATIONSHIPS?**

The short answer is: because how well individuals relate to one another affects how well the military mission is per-

formed. The Air Force and the Air National Guard are more effective when individuals work together and respect author-

ity. The Air Force instruction on professional relationships sets out the standards of behavior for personal relationships.

It accounts for the fact that the Air Force and the Air National Guard are organized in ranks and that the mission is ac-

complished through the giving and following of orders. Commanders and supervisors have the authority and responsibil-

ity to maintain good order, discipline, and morale. As such, they may be held accountable for failing to act in appropriate

cases. Commanders and supervisors of Air National Guard units should tailor application and enforcement of principles

to address unique situations arising from part-time service.

**PROFESSIONAL RELATIONSHIPS:**

Some relationships contribute to high morale and good discipline. Others do not. Recognizing relationships that increase

morale and discipline is important. "Professional relationships" is a term used to describe personal interaction that adds

to morale, discipline, and respect for authority. Open communication about careers, duties, performance, and the mis-

sion is always encouraged. Participation in unit, base, or civic activities normally contributes to espirit de corps and has a positive effect on others. When relationships have the opposite effect, _i.e._ , when they begin to break down or destroy morale, discipline, or respect for authority, they become a matter of official Air Force and Air National Guard interest.

**UNPROFESSIONAL RELATIONSHIPS**

"Unprofessional relationships" is a term used to describe personal interaction that results in or reasonably creates the

appearance of favoritism, misuse of position or authority, or the abandonment of organizational goals for personal inter-

ests. Depending on the circumstances, every member is susceptible to entering into relationships that will hurt morale

and discipline or respect for authority. Consequently, each member of the armed forces has an obligation to keep his/her

own behavior within Air Force standards. In addition, we all have an obligation to correct the improper behavior or call it

to the attention of the proper authority. Unprofessional relationships can exist between: officer and officer; officer and

enlisted; enlisted and enlisted; and military personnel and civilian employees or contractor personnel. Dating and close

friendships become matters of official concern when they adversely affect morale, discipline, unit cohesion, respect for

authority, or mission accomplishment. Such relationships may come under scrutiny even when members are not in the

same unit or chain of command. In addition, sharing living accommodations, vacations, transportation, and off-duty inter-

ests on a frequent or recurring basis can be, or be perceived to be, unprofessional. The key is the frequency of the activity or the absence of official purpose. Commanders should also be sensitive to the development of unprofessional relationships in other areas of interaction: recruiting, training, professional military education, and professional care and counseling services.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 7, Ethics**_

_**Section 7-4 Fraternization and Professional Relationships**_

_**Page 2**_

**FRATERNIZATION**

The term "fraternization" is used in the Manual for Courts-Martial to describe a criminal offense. Basically, "fraterniza-

tion" is an unprofessional relationship between an officer and an enlisted member that violates the customary bounds of

acceptable behavior in the Air Force. It prejudices good order and discipline, discredits the armed services, or operates to the personal disgrace or dishonor of the officer involved. Consequently, the term fraternization is normally used in the

Air Force to describe an unprofessional relationship between an officer and an enlisted member and not unprofessional

relationships between officers or between enlisted members. Other services call all unprofessional relationships fraterni-

zation and use the terms interchangeably. In many respects there is really no difference. Unprofessional relationships be-

tween two enlisted members or between two officers can be detrimental to morale and discipline.

Because officers serve in higher levels of leadership and exercise considerable authority over those members junior to

them, it is recognized that the potential harm from their unprofessional conduct can have a significantly greater impact.

Officers will not do the following with enlisted members: gamble; lend money to, borrow money from, or become in-

debted to; engage in sexual relations or date; share living accommodations (except when military operations require); or

engage on a personal basis in business enterprises with, or solicit or make solicited sales.

Officer/Enlisted marriages are not always the result of fraternization. When fraternization does occur, the subsequent

marriage does not preclude appropriate command actions. Moreover, married members are expected to respect all cus-

toms and courtesies when on duty, in uniform and in public, or at official social functions.

**COMMANDER'S ROLE**

AFI 36-2909 provides that commanders and supervisors WILL use their authority to maintain good order and discipline

within their units. If professional good judgment and common sense indicate that a relationship is causing, or may rea-

sonably result in, damage to morale, good order, discipline, unit cohesion or mission accomplishment, the supervisor

MUST take corrective action.

Special considerations arise for traditional Guard members. AFI 36-2909, para 3.8, provides that when members are not

on active duty, full-time National Guard duty, or inactive duty training, commanders and supervisors should tailor appli-

cation and enforcement of the regulation to the unique situations that arise from part-time service.

Commanders should ensure that the principles set forth in this instruction are briefed at least annually (para 9).

**ACTIONS IN RESPONSE TO UNPROFESSIONAL RELATIONSHIPS**

Actions should usually be the least severe necessary to terminate the unprofessional aspect of the relationship. As such,

the full panoply of administrative actions should be considered. These include: counseling, reprimand, removal from posi-

tion, reassignment, demotion, delay of promotion, adverse comments in performance reports, and even separation. More

serious cases may warrant nonjudicial punishment and even trial by court-martial. When appropriate, an order to cease

the relationship should be given. Instances of actual favoritism, partiality, or misuse of position may constitute independ-

ent violations of the UCMJ, state military justice codes, or the JER.

_**KWIK-NOTE: In order to maintain good order and discipline, commanders must foster professional relationships and take**_

_**affirmative action to quell those relationships that result in the appearance of favoritism or misuse of authority.**_

**RELATED TOPICS:**

**SECTION**

Ethics

7-3

Gambling, Lotteries, and Raffles

7-5

_**Air National Guard Commander's Legal Deskbook**_

237

_**Chapter 7, Ethics**_

_**Section 7-5 Gambling, Lotteries, and Raffles**_

_**Page 1**_

**Gambling, Lotteries, and Raffles**

**Updated by Lt Col Monique J. DeSpain, October 2010**

**AUTHORITY:** 5 C.F.R. 735.201; AFI 34-201, _Use of Non-Appropriated Funds_ (17 Jun 02), ANG SUP 1 (29 Nov 07); AFI 34-223, _Private Organization Program_ (8 Mar 07) ANG SUP 1 (1 Apr 08); DoDI 1000.15, _Private Organizations on DoD Installations_ (20 Dec 05); AFI 36-2909, _Professional and Unprofessional Relationships_ (1May 99); AFI 36-3101, _Fundraising within the_ _Air Force_ (12 Jul 02); DoD 5500.7-R, _Joint Ethics Regulation (JER)_ (30 Aug 93, Change 4, 6 Aug 98); OpJAGAF 1995/68, _Private Organizations_ (21 Aug 95); UCMJ Articles 133 and 134; _see also_ Air Force Material Command Ethics Website (http://afmcethics.wpafb.af.mil/).

**GAMBLING**

Authorized fundraising activities do NOT include gambling activities. In fact, gambling is not allowed on government

owned or leased property, or while on duty, subject only to a few narrow exceptions. Those are as follows:

1. Activities necessitated by a DoD employee's law enforcement duties.

2. Activities by organizations composed primarily of DoD employees or their dependents for the benefit of welfare funds

for their own members or for the benefit of other DoD employees or their dependents, subject to the limits of local law.

An example of a "gambling" activity allowed is set forth in AFI 34-201 which permits the Clubs to host Bingo and occa-

sional Monte Carlo (Las Vegas) events. Such activities may be conducted on an occasional basis, sponsored only by open

messes, and for entertainment purposes only. No monetary gain to the participants is allowed, but the awarding of non-

monetary prizes is allowed. The general rule is some tangible item of value must be given in exchange for the money

given by the donor.

3. Private wagers among DoD employees if based on a personal relationship and transacted entirely within assigned fed-

eral government living quarters and within the limits of local laws.

4. Purchase of lottery tickets authorized by any State from blind vendors licensed to operate vending facilities.

Private organizations may not conduct games of chance, lotteries, or raffles under AFI 34-223, with limited exception

(set forth below). Unofficial activities/organizations may not conduct games of chance, lotteries, raffles, or other

gambling-type activities under any circumstances. Be aware—in some instances gambling with a subordinate may be a

violation of Articles 133 and 134 of the Uniform Code of Military Justice and it is clearly a violation of AFI 36-2909 ( _Professional and Unprofessional Relationships_ ), for an officer to gamble with a subordinate.

**LOTTERIES/RAFFLES**

"Raffles" are a form of fundraising. By definition, a "raffle" is a lottery in which a number of persons buy chances on a

prize. Despite what a unit may call their fundraising endeavor, if it looks like a raffle, it is. A raffle and a lottery are essentially the same: the raffle sells tickets for a chance to win a prize; the lottery sells tickets for a chance to share in a pool of collected funds. The general prohibition on gambling is subject to an exception for agency-approved activities by organizations composed primarily of DoD employees or their dependents, for the benefit of their own members or of other DoD

employees or their dependents. The central authority for raffles is OpJAGAF 1995/68, 21 Aug 95. Raffles must:

1. not violate the law of the city, county, state, or country where the installation is located;

2. be approved in advance by the local installation commander. Requests for raffle approval must be made in writing and

include the following information:

a. detailed description of the proposed event

b. purpose of the raffle and the intended beneficiaries

c. measures used to ensure funds will go to the appropriate beneficiaries;

3. raise proceeds to be used solely to serve charitable, civic, or other community welfare purposes that directly benefit

_**Air National Guard Commander's Legal Deskbook**_

238

_**Chapter 7, Ethics**_

_**Section 7-5 Gambling, Lotteries, and Raffles**_

_**Page 2**_

DoD personnel or their family members. (e.g., proceeds used to purchase playground equipment at a child development

center, to fund scholarship programs for DoD personnel and family members, or to donate money for base scouting or-

ganizations). Raffles used to raise funds for purely social, recreational, or entertainment purposes that benefit individual PO members and/or family members will not be approved (e.g., weekend ski trip, sightseeing trip, shopping excursion to

Mexico). Furthermore, raffles may not be used to raise money for local or national groups such as regional or national

heart or cancer associations;

4. not be officially endorsed or supported;

5. only be conducted on an infrequent bases; and

6. not be conducted in the workplace, during duty time, or at any time by an active duty member while in uniform.

_**KWIK-NOTE: Lotteries and raffles are subject to strict requirements. Commanders should ensure all such activities are**_

_**staffed through the appropriate agencies and supported, in writing, with detailed descriptions of the event(s).**_

**RELATED TOPICS:**

**SECTION**

Ethics

7-3

Fundraising

7-2

On-Base Commercial Solicitation

3-9

Professional and Unprofessional Relationships

7-4

_**Air National Guard Commander's Legal Deskbook**_

239

_**Chapter 7, Ethics**_

_**Section 7-6 Gifts From Outside Sources**_

_**Page 1**_

**Gifts From Outside Sources __**

**Updated by Lt Col Monique J. DeSpain, October 2010**

**AUTHORITY:** 5 CFR 2635.203 _et. seq.;_ 5 C.F.R. 2635.204(g)(2)-(6); AFI 51-601, _Gifts to the Department of the Air Force_ (26

Nov 03); AFI 51-901, _Gifts from Foreign Governments_ (16 Feb 05); AFI 84-101, _Historical Products, Services and Requirements_ (30 Jul 09); DoDD 1005.13, _Gifts and Decorations from Foreign Governments_ (6 Dec 02); DoD 5500.7-R, _Joint Ethics Regulation_ _(JER)_ , (30 Aug 93, Change 4, 6 Aug 98, Change 5, 25 Oct 05, Change 6, 23 Mar 06), Chapter 2; 5CFR 3601 _et. seq._ _Supplemental Standards of Conduct for Employees of the Department of Defense._

## INTRODUCTION

In our society, gifts are usually an expression of gratitude for something done by the recipient. Gifts sometimes carry

with them an unwritten obligation to return the favor. As such, gifts can create the appearance of a special relationship

between the donor and the recipient. This can lead to even more undesirable appearances like bribery, favoritism, and

corruption. This chapter addresses gifts from outside sources and foreign governments.

**GENERAL RULE AND DEFINITIONS**

DoD employees may not directly or indirectly accept or solicit gifts from a "prohibited source" or given because of their

official positions.

The term "gift" includes any item having a monetary value. A gift does not include modest items of food or refresh-

ments, items with little intrinsic value (greeting cards, plaques, certificates, and trophies), or prizes in events open to the public.

"Indirect" receipt of a gift means a gift given with the employee's knowledge and consent to the employee's relatives be-

cause of their relationship to the employee. It also includes the situation where the employee directs the gift to be given

to another person or charitable organization. If an employee cannot accept a gift, he/she cannot redirect it to family,

friends, or charities.

A gift is offered because of one's official position if, but for the employee's position, it would not have otherwise been

offered.

A "prohibited source" is defined as any person who: 1) seeks official action by the employee's agency, 2) is doing or seek-

ing to do business with the employee's agency, 3) is regulated by the employee's agency, or 4) has interests that may be

substantially affected by performance or nonperformance of the employee's official duties. The most commonly encoun-

tered prohibited source is the DoD contractor. In addition, employees shall not solicit or coerce the offering of a gift or

accept gifts from a source so frequently that a reasonable person would believe the employee is using his/her public of-

fice for private gain.

**EXCEPTIONS TO THE GENERAL RULE**

Even if the item is a "gift" and it comes from a prohibited source or is given because of the employee's position, it may

fall into one of the twelve exceptions under 5 C.F.R. 2635.204, and may therefore be accepted. A few commonly encoun-

tered exceptions warrant discussion:

1. The _de minimis_ gift. This is a gift of up to $20 in value per occasion (not cash, stocks, bonds, or CDs), as long as the total value of the gifts from one source does not exceed $50 in a calendar year. The rule applies per source, per occasion.

This is also called the "$20/$50 rule." If the gift exceeds $20, it may not be accepted. The employee may not accept the

"first $20 worth" and supplement the difference with his/her own money.

_**Air National Guard Commander's Legal Deskbook**_

240

_**Chapter 7, Ethics**_

_**Section 7-6 Gifts From Outside Sources**_

_**Page 2**_

2. Discounts and similar benefits. Government employees may take advantage of certain discounts if the discount is of-

fered to all employees equally. For example, if a local gym or restaurant offers a reduced price for all military members

and federal employees, persons in those categories can take advantage of the discounted rate. On the other hand, if the

establishment offers a discount only to the installation wing commander or to general officers only, the offer may not be

accepted because the donor would be discriminating among government employees based upon position and rank.

3. Free attendance at widely attended gatherings ( _e.g._ , a dinner or conference). "Widely attended" indicates an event that is open to members from a given industry, profession, or diverse group. It also applies to situations where military officials are invited to attend social, civic, or entertainment functions because of their military position, often as guests of a private organization, professional association, or defense contractor. Free attendance includes a waiver of all or a part of the fee. It does not include travel expenses or lodging. Free attendance may be generally be accepted if it is determined

that attendance is in the interest of the Air Force because it will further agency programs or operations. _See_ 5 C.F.R.

2635.204(g)(2)-(6) for specific limitations.

4. Free attendance at events sponsored by a state or local government and certain civic organizations.

5. Gifts based solely on a family relationship, personal friendship, or outside business/employment relationship.

Before final approval is granted, an analysis of the five overriding considerations in 5 C.F.R. 2635.202(c) should be made.

**WHEN A GIFT HAS BEEN IMPROPERLY ACCEPTED**

If an employee has received a gift that cannot be accepted, the employee may return the gift, destroy it, or pay its fair market value. If the gift is perishable and it is not practical to return, the gift may, with approval, be given to a charity or shared in the office.

**GIFTS TO AIR FORCE PERSONNEL FROM FOREIGN GOVERNMENTS**

Federal employees may accept certain gifts from a foreign government that would otherwise be illegal to accept from any

other entity. By definition, a "gift" in these circumstances includes anything of tangible or intangible value that is ten-

dered by or received from a foreign government, except for scholarships or medical treatment. Because Air National

Guard personnel often are sent around the world, they may frequently encounter offers of gifts from foreign officials.

One of the primary differences between gifts from outside sources and gifts from foreign governments is the definition of

" _de minimis_ "/minimal value for purposes of determining when employees may accept and keep proffered gifts. The _de minimis_ value for gifts from outside sources is $20.00; the "minimal value" for foreign gifts is currently $305.00 (U.S. retail value). This value is set forth by the Administrator of General Services under 5 U.S.C. 7342 (b) and AFI 51-901. The burden of proving "minimal value" rests on the recipient of the gift. If the gift from the foreign government exceeds

$305.00, it must be refused, but only upon conferring with Department of State, via SAF/AA. If refusal of the gift is not

practical, would offend or embarrass the donor, or could adversely affect US foreign relations, it may be accepted on be-

half of the United States Government. The gift must be given to appropriate Air Force officials within 60 days of receipt. ****

Gifts of historical significance are processed according to AFI 84-101, _Historical Products Services and Requirements_.

_**KWIK-NOTE: Commanders should be concerned with both reality and appearance of any relationship created by a gift. In**_

_**addition, it is important to write an acceptance letter as outlined in AFI 51-601 to avoid being charged for the "gift" later.**_

**RELATED TOPICS:**

**SECTION**

Ethics

7-3

Frequent Flyer Programs

27-5

Gifts Among Employees

7-7

_**Air National Guard Commander's Legal Deskbook**_

241

_**Chapter 7, Ethics**_

_**Section 7-7 Gifts Among Employees**_

_**Page 1**_

**Gifts Among Employees**

**Updated by Lieutenant Colonel Chris Kannady, February 2018**

**AUTHORITY:** 5 C.F.R. 2635, Subpart C; HQ USAF/JA Memo, _Gifts to Employees Upon Retirement or Transfer_ (9 Jun 97); HQ

USAF/JAG Message, _JER Amendment- Gifts to Superiors_ (10 Jan 97);DoD 5500.7-R, _Joint Ethics Regulation (JER) (_ 30 Aug 93, Change 4, 6 Aug 98, Change 5, 25 Oct 05, Change 6, 23 Mar 06, Change 7, 17 Nov 2011), Chapter 2; OpJAGAF 1995/

67, _Definition of Donating Group_ (15 Aug 95) 5 CFR 3601 _et. seq.,_ Supplemental Standards of Conduct for Employees of the Department of Defense. 

## INTRODUCTION

In our society, gifts are usually an expression of gratitude for something done by the recipient. Gifts sometimes carry

with them an unwritten obligation to return the favor. As such, gifts can create the appearance of a special relationship

between the donor and the recipient. This can lead to even more undesirable appearances like bribery, favoritism and cor-

ruption. This chapter section addresses gifts between employees.

**GENERAL RULES**

1. Employees generally may not give gifts to their superiors or solicit a gift/donation from another employee to a supe-

rior. A "superior" is any employee whose official responsibilities include directing or evaluating the performance of a sub-

ordinate's official duties or any other superior of the subordinate.

2. Employees may not accept a gift from any other federal employee who earns less than him or her, unless there is no

superior-subordinate relationship and a personal relationship justifies the gift.

Notice there is no equivalent rule regarding gifts from a superior to a subordinate. However, one of the basic tenets of

the Air Force is that there will be no preferential treatment given to any other individual. Superiors should keep in mind

the need to avoid the appearance of impropriety and the potential for the development of an unprofessional relationship.

Along with this rule, coercion is never appropriate in gifts between employees. No one can ever be forced to give any

other person a gift. Although these general rules sound restrictive, gifts are exchanged among employees all the time.

This happens because the JER sets out reasonable exceptions to the general rule. There is no exception for the prohibi-

tion against coercion.

**EXCEPTIONS TO THE GENERAL RULE**

**Gifts Given on an Occasional Basis**

An employee may give to his superior, on an occasional basis, any of the following:

Gifts, other than cash, with a value of $10 or less.

Food and/or refreshments shared among office employees.

Personal hospitality provided at an employee's home, if it is of the kind normally provided to the employee's personal

friends ( _i.e._ , bringing the boss home for dinner).

Transferred leave, as long as it is not transferred to an immediate supervisor.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 7, Ethics**_

_**Section 7-7 Gifts Among Employees**_

_**Page 2**_

Employees may solicit contributions for a gift on an occasional basis subject to limitations. Employees may solicit contri-

butions for food and/or refreshments that will be consumed by everyone in the immediate office to mark the occasion for

such a gift.

**Gifts Given on Special Occasions**

This category involves two categories of "special occasions."

The first are those in recognition of infrequently occurring occasions of personal significance, such as marriage, illness,

birth and adoption. This does not include recurring events like holidays, birthdays, or anniversaries.

The second category includes those occasions that terminate the subordinate-superior relationship, such as retirement,

resignation or PCS moves. This category does not include promotion to a higher position within the same organization.

If the gift is from a group of subordinates (called a "donating group"), then the gift(s) from the group may not exceed a

total of $300. There is no limit on the number of donating groups, save that the number must be reasonable. Donating

groups cannot pool their money to buy a gift over the $300 limit. Employees may not be asked to contribute more than

$10 toward the gift and may not be in more than one donating group. If an individual contributes to the gift and is a

member of more than one donating group, then the two groups will be considered one for purposes of the $300 limit.

The $10 and $300 limits do not apply to the food, refreshments or entertainment at the event where the group gift is

given. Gifts from a group may exceed the $300 limit if the gift meets three criteria: It is appropriate to the occasion; it is given on a special, infrequent occasion that terminates the subordinate-superior relationship; AND it is uniquely linked

to the departing employee's position or tour of duty, and commemorates the same. JER 2-203(a).

**VOLUNTARY CONTRIBUTIONS**

Employees may solicit voluntary contributions of nominal amounts from other employees for a gift to a superior. A con-

tribution is not voluntary unless it is made freely, without force, pressure or coercion. Moreover, while those seeking con-

tributions may "suggest" an amount, it is up to the contributing employee to give whatever amount, if any. Military rank

may not be used as an inducement for donations. To avoid the appearance of impropriety, no lists of contributors should

be maintained.

_**KWIK NOTE: Commanders should be concerned with both the reality and the appearance of any relationship created by a**_

_**gift.**_

**RELATED TOPICS:**

**SECTION**

Ethics

7-3

Professional and Unprofessional Relationships

7-4

Gifts From Outside Sources

7-6

_**Air National Guard Commander's Legal Deskbook**_

243

_**Chapter 7, Ethics**_

_**Section 7-8 Honorary Memberships**_

_**Page 1**_

**Honorary Memberships**

**Updated by Lieutenant Colonel Chris Kannady, February 2018**

**AUTHORITY:** 5 C.F.R. 2635, _et. seq_.; DoD 5500.7-R, _Joint Ethics Regulation (JER)_ (30 Aug 93, Change 4, 6 Aug 98, Change 5, 25 Oct 05, Change 6, 23 Mar 06; Change 7, 17 Nov 2011), Chapters 2 and 3; 5 C.F.R. 3601 _et. seq.,_ _Supplemental Standards of Conduct for Employees of the Department of Defense_ (1 January 2011).

**HONORARY MEMBERSHIP**

Air Force personnel are occasionally offered free or "honorary" memberships from various private organizations such as

golf, tennis, gun, health or social clubs. Such offers usually waive initiation fees and all, or a portion of, membership

dues, with the individual responsible for all other charges. Usually these memberships terminate on the individual's reas-

signment or retirement and do not create an equity position in the club.

**THE RULES**

Before publication of the Joint Ethics Regulation (JER), there was no prohibition on accepting a non-solicited honorary

membership from a private organization. However, under the JER, military members and civilian employees are barred

from accepting a free or discounted membership if the membership was offered because of the person's government posi-

tion. This is true even if the private organization contends that the membership is offered to the employee in a personal

(instead of official) capacity or connects the membership to an "honorary" position in the management of the private or-

ganization ( _e.g._ , board of directors, trustee, etc.).

A member or employee may accept an honorary membership if the offer is unrelated to government employment (such

as through a spouse's association with the organization), or is offered to all military members, regardless of rank or posi-

tion ( _e.g._ , military discount). For example, a golf club's military discount for all military personnel is acceptable; a golf club's military discount for the installation commander alone, or for all O-6s and above, would not be acceptable.

_**KWIK-NOTE: Military members and civilian employees are barred from accepting a free or discounted membership if the**_

_**membership was offered because of the person's government position.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Civic Organizations

6-3

Ethics

7-3

_**Air National Guard Commander's Legal Deskbook**_

244

_**Chapter 7, Ethics**_

_**Section 7–9 Off-Duty Employment**_

_**Page 1**_

**Off-Duty Employment**

**Updated by Lieutenant Colonel Chris Kannady, February 2018**

**AUTHORITY:** 18 U.S.C. 208; 5 C.F.R. 2635; DoD 5500.7-R, _Joint Ethics Regulation (JER)_ (30 Aug 93, Change 4, 6 Aug 98, Change 5, 25 Oct 05, Change 6, 23 Mar 06, Change 7, 17 Nov 2011), Chapters 1- 3; OpJAGAF 1996/75, _Propriety of Employment for Reserve Officers_ (13 May 96); OpJAGAF 2001/14, _Off-Duty Employment - Air Guard Reserve Pilots_ (9 Mar 01); ANGI 36-101, _Air National Guard Active Guard Reserve (AGR) Program_ (2 June 2010). 

## INTRODUCTION

Air Force and Air National Guard members may participate in off-duty employment, subject to the limitations and prohi-

bitions set forth in the Joint Ethics Regulation (JER) and its lawfully promulgated supplements.

**WHO MUST OBTAIN APPROVAL FOR OFF-DUTY EMPLOYMENT**

A common misconception is that the JER requires every DoD employee and military member to obtain pre-approval of

_any_ off-duty employment; that is not the case. Section 2-206 of the JER requires pre-approval of off-duty employment only for DoD employees who are required to file a financial disclosure report (the SF 278 or OGE 450) and wish to engage in a business activity or compensated outside employment with a prohibited source.

A "prohibited source" is defined as:

Any person who seeks official action by the employee's agency;

Does business or seeks to do business with the employee's agency;

Conducts activities regulated by the employee's agency;

Has interests that may be substantially affected by the performance of the employee's official duties; or

Is an organization comprised of members who fall into one of these categories.

In those cases, the employee must obtain written approval from the supervisor or commander.

Moreover, under JER 2-303, agency designees may require _any_ DoD employee under their jurisdiction to report any out-

side employment or activity prior to engaging in it. The commander, head of the organization or supervisor may then pro-

hibit activity if it will detract from readiness, or pose a security risk.

As always, any activity that may reasonably be expected to bring discredit upon the government or DoD will not be al-

lowed.

ANGI 36-101 paragraph 2-6 requires approval of off-duty employment by AGRs and specifically prohibits temporary or

permanent employment by the state.

**"COVERED RELATIONSHIP" AND CONFLICTS OF INTEREST**

Besides the pre-approval requirement, there are a number of statutory provisions that may be triggered by off-duty em-

ployment with a prohibited source ( _See_ 5 C.F.R. 2635.801(d) and the JER, section 1-500 for a summary of these stat-

utes).

For example, 18 U.S.C. 208 prohibits a government employee from participating personally and substantially in an offi-

cial capacity in any particular matter in which he has a financial interest if the particular matter will have a direct and predictable effect on that interest. An employee's part-time employment with a person or company means that the employee

has a "covered relationship" with that person or company for purposes of conflict of interest laws. An employee may not

engage in outside employment if the employee would have to be disqualified from matters so central to the performance

of his official duties that the employee's ability to perform the duties would be materially impaired (5 C.F.R. 2635.802). _****_

_**Air National Guard Commander's Legal Deskbook**_

245

_**Chapter 7, Ethics**_

_**Section 7-9 Off-Duty Employment**_

_**Page 2**_

Stated differently, if an employee's proposed off-duty employment would involve conflicts of interest so great that he or

she would be unable to carry out official duties, a supervisor or commander may disapprove that particular off-duty em-

ployment.

**TEACHING, WRITING OR LECTURING**

Personnel are encouraged to engage in teaching, writing, or lecturing. However, a member may not accept compensation

for teaching, speaking or writing in their personal capacity, if any of the following five conditions apply:

1. The subject matter deals in significant part with any ongoing or announced policy, program or operation of the DoD or

the Air Force.

2. The subject matter deals in significant part with any matter to which the employee presently is assigned, or to which

the employee was assigned during the previous one-year period.

3. The circumstances indicate that the invitation to engage in the teaching, speaking or writing was extended to the em-

ployee primarily because of his/her official position, rather than expertise on the particular subject matter.

4. The invitation to engage in the teaching/speaking or writing (or the offer of compensation for the activity) was ex-

tended to the employee, directly or indirectly, by a person (or company) who has interests that may be affected substan-

tially by performance or nonperformance of the employee's duties.

5. The information conveyed through the teaching, speaking or writing draws substantially on ideas or official data that

are "nonpublic information" as defined in 5 C.F.R. 2635.703.

Further, the JER 3-307 (a) sets out specific guidelines for required disclaimers where a DoD employee uses or permits

the use of his military grade or who permits the use of her title or position as one of several biographical details given to identify herself in connection with the teaching, speaking or writing if the subject deals in significant part with any ongoing or announced policy, program or operation of the DoD employee's Agency and the employee has not been authorized

to present the material as the Agency's position. Public Affairs coordination and approval is recommended before pub-

lishing any writing that might involve disclosure of military duties.

**THE TRADITIONAL GUARDSMAN**

The analysis becomes more difficult when applied to traditional National Guardsmen who retain "full-time" off-duty em-

ployment.

Obviously, their employment is not illegal, but does warrant careful review. The JER does apply to National Guardsmen

performing official duties or functions under the authority of either Title 10 or Title 32 of the United States Code be-

cause the member meets the JER definition of "DoD employee." (JER 1-211e.) When deciding whether a covered rela-

tionship or conflict of interest exists, one must compare the civilian responsibilities with military duties.

First, determine if the Guardsman is employed/seeking employment with an organization that provides services or sales

to the Air Force/ANG community. Essentially, a Guard member may not participate on both sides of a transaction, _i.e.,_

work for a company in a full-time civilian capacity and then make decisions on behalf of the AF/ANG that will affect that

company's welfare. The conflict is obvious, the appearance of impropriety overwhelming and it might require a change of

military assignment.

If a member's participation in a military capacity is tangential to other AF responsibilities, such that she could easily perform meaningful duties in another unrelated capacity, then the member may keep the civilian job and continue with the

current ANG assignment. The decision whether her military duties can be separated from ties to the civilian work is left

to the commander who should consult the SJA if there is any question.

If military duties cannot be separated from activities involving civilian duties, then the member may not maintain em-

ployment with that civilian organization under JER 2-100 (5 C.F.R. 2635.802), which precludes an employee (including a

Reservist as a special government employee) from engaging in outside employment that conflicts with her official duties.

_**Air National Guard Commander's Legal Deskbook**_

246

_**Chapter 7, Ethics**_

_**Section 7-9 Off-Duty Employment**_

_**Page 3**_

An activity conflicts with an employee's official duties if it would require the employee's disqualification from matters so central or critical to the performance of her official duties that her ability to perform the duties would be materially impaired.

Under the JER 8-501(b), standards of conduct counseling is personal to the employee and does not extend to the em-

ployee's prospective employer.

_**KWIK NOTE: Commanders should advise members their non-military employment might be subject to certain ethical restric-**_

_**tions.**_

**RELATED TOPICS:**

**SECTION**

Ethics

7-3

Outside Employment of Spouses

7-11

Standards of Conduct – Statement of Affiliations and Financial Interests

7-14

Conflicts of Interest

7-15

Contracting Pitfalls

25-8

_**Air National Guard Commander's Legal Deskbook**_

247

_**Chapter 7, Ethics**_

_**Section 7-10 Organizational Emblems, Symbols, and Names**_

_**Page 1**_

**Organizational Emblems, Symbols, and Names**

**Updated by Lt Col Monique J. DeSpain, October 2010**

**AUTHORITY:** United States Code, Titles 10 and 18; AFI 34-223, _Private Organization (PO) Program_ (8 Mar 07); AFI 34-223 ANG SUP 1 Apr 08; AF/JAG "All SJA" Memorandum, 16 August 2002; DODI 1000.15, _Private Organizations on DoD_

_Installations_ (20 Dec 2005); AFI 38-101, _Air Force Organization_ (4 Apr 06); AFI 38-101 A _ir Force Guidance Memorandum_ _(AFGM1),_ (1 Jun 09); AFI 84-101, _Historical Products, Services, and Requirements_ (30 Jul 09); AFI 84-105, _Organizational Lineage, Honors, and Heraldry_ (1 Feb 06); AFMAN 33-326, _Preparing Official Communication_ (15Oct07); DoD5500.7-R, J _oint Ethics-Regulation (JER),_ (30 Aug 93, C4, 6 Aug 98, Change 5,25 Oct 05, Change 6, 23 Mar 06); OpJAGAF 1996/130, _Use of AIM_

_HIGH Logo by Civilian Aircraft at USAF Shows_ (14 Aug 96). 

## INTRODUCTION

Organizational emblems are encouraged because they promote unit pride and morale. There are specific requirements for

their design, color and size. For instance, designs cannot infringe on any copyrighted designs; mottos in the emblem are

optional, but if requested, should be in good taste, avoid use of words that may be offensive in nature or cause embarrass-

ment to the unit and the Air Force, and should not infringe on a registered trademark (for example, a private corporate

slogan or a well-known commercial phrase).

Unit emblems must be approved IAW AFI 84-101 and AFI 84-105. The Director of Air Force History (HQ USAF/HO)

establishes policies concerning historical data and documentation, historical reporting, historical publications, and or-

ganization lineage, honors and emblems. Establishments and units as defined in AFI 38-101, _Air Force Organization,_ may have organizational emblems. If they choose to display organizational emblems, they must use official designs registered

with the Air Force Historical Research Agency. Chapter 3 of AFI 84-105 sets out the requirements for emblem designs.

Commanders of Wings or Groups, in conjunction with their unit historian, must process requests for approval of new or

modified emblems through their State Headquarters to the State Adjutant General, then to the National Guard Bureau

(NGB-PAH), and finally to HQ USAF HRC/RI.

However, more important for commanders is the question of proper use of their organization's emblems, its symbols and

name. This is where some potentially troublesome situations arise which could have Joint Ethics Regulation (JER) impli-

cations.

**UNIT USE OF ORGANIZATIONAL EMBLEMS, SYMBOLS AND NAMES**

Approved organizational emblems may be used only by military personnel in that organization on flight, athletic and util-

ity clothing, conservatively colored civilian blazers, organization aircraft and equipment, and personal stationery greet-

ings, invitations and other similar items. Units frequently use their emblems on plaques, certificates and awards given to

retiring military personnel, and to civilians to show the unit's appreciation for their support in a special project.

Guard members may only use the unit's emblem on their personal stationery, greetings, and invitations for military pur-

poses. Non-military uses of the organizational emblem are not permitted and may raise the appearance of a Joint Ethics

Regulation violation. For example, a traditional Guard member who has a private business cannot use the Guard unit's

emblem, motto, symbol or name on the member's stationery used in connection with that private business.

No distinctive organizational emblems are authorized below the squadron level, and unit commanders are responsible

for controlling the use of their unit's emblem.

_**Air National Guard Commander's Legal Deskbook**_

248

_**Chapter 7, Ethics**_

_**Section 7-10 Organizational Emblems, Symbols, and Names**_

_**Page 2**_

**REQUEST FOR USE OF YOUR EMBLEM BY OUTSIDE PERSONS OR GROUPS**

**Other Military Organizations**

_****_ Pursuant to AFI 84-105 para 3.5, an organization has exclusive use of its approved heraldic emblem. The organization's commander controls the use of its emblem. Emblems are approved for the exclusive use of the unit concerned. Hence,

the approval process of an emblem can loosely be deemed a registering of a military trademark -- the emblem. This

means that no other military unit may use another unit's emblem.

**Civil Associations or Military Corporations within the Unit**

Fairly recent updates to AFI 34-223 (8 Mar 07) preclude any private organization, civil association, or military corpora-

tion duly formed and operating on base from using in its title or letterhead any name, abbreviation, seal, logo, insignia,

or the like, used by any DoD component to identify any of its programs, locations or activities. This includes a prohibi-

tion against using the emblem in connection with advertising or sponsorship of activities. AFI 34-223 also requires a

prominent disclaimer on all print and electronic media to clarify that they are not an official part of DoD. Specific lan-

guage and display requirements for disclaimers may be found at AFI 34-223, Section C, para 10.

**Non-military Persons or Groups**

Commanders may act upon requests for use of the unit emblem by hobbyists or collectors. If no commercial use will be

made of the emblem, consider granting the request since it may enhance community relations. Units also customarily

and properly hand out promotional materials showing the unit's emblem, motto, symbol, logo, name or aircraft likeness

to civilian visitors to the base to further community relations.

Requests from toy manufacturers, advertisers, or similar commercial enterprises must be approved initially by the unit

concerned, and then by higher headquarters, and should be submitted through the same channels as the original request

for the emblem's approval. The standard for approval of the use is the "best interests" of the Air Force. Local command-

ers can deny but cannot finally approve these requests.

Besides requests for use of the emblem, commanders may receive requests from commercial enterprises for use for pro-

motional purposes of a unit's motto, symbol, logo, name, or an illustration of the assigned aircraft or its name, or the

words "Air National Guard" with or without the state as a prefix. The request may have as its basis a commercial arrange-

ment favorable to your unit. The commercial enterprise may also want to pay the unit or base MWR corporation a licens-

ing fee for use of these items. If this sounds like a Standards of Conduct quiz, it is. The JER imposes a positive duty to

protect and conserve government property. A unit's emblem, motto, symbol, logo, name, and aircraft and its likeness are

government property, particularly since government resources are responsible for their existence. Commanders cannot

directly or indirectly use or allow the use of government property for other than officially approved activities or official government business. The one exception is using government property for approved activities that would further

military-community relations, if such use does not interfere with military missions. Requests from the commercial enter-

prises should be denied if it would improperly imply official support of a commercial promotional enterprise.

The United States military is an institution respected around the world. The symbols associated with military service (ti-

tles, uniforms, flags, seals, crests, emblems, etc.) not only represent some of our country's best people, resources, and

achievements, but also the proud tradition and heritage of our military services. Occasionally, people both within and

outside the Air Force want to use these symbols to advance their own purposes. Commanders should be alert to in-

stances of misuse and be prepared to intervene to protect the respect and dignity afforded Air Force symbols. The key

JER provision in this area is found at JER 3-209. This provision applies to situations in which DoD employees attempt to

use their official position for personal or private gain. It is also broad enough to prevent DoD employees from using any

indicia of their official positions as an "implied" endorsement.

_**Air National Guard Commander's Legal Deskbook**_

249

_**Chapter 7, Ethics**_

_**Section 7-10 Organizational Emblems, Symbols, and Names**_

_**Page 3**_

One of the most recognized symbols of military service is the uniform. Under 10 U.S.C. 771, no one except a member of

the armed forces may wear the uniform, a distinctive part of the uniform, or a uniform any part of which is similar to the

uniform of the armed forces. Violations can be prosecuted under 18 U.S.C. 702. An exception is provided for an actor in

a theatrical or motion picture production, who may wear a military uniform if the portrayal does not tend to discredit

that armed force. Requests to use DoD materials (including uniforms and insignia) in commercial advertising or promo-

tions are to be referred for approval through Public Affairs.

The seal of the Department of the Air Force is protected by 18 U.S.C. 506 and AFMAN Manual 33-326, P _reparing Official_

_Communications_ , Attachment 2. The AFMAN lists unauthorized uses of the Air Force seal ( _e.g.,_ souvenir or novelty items, toys or commercial gifts and premiums, membership cards of military or quasi-military clubs) as well as any use that implies an Air Force connection or endorsement. SAF/AA is the custodian for the Air Force seal and is solely responsible

for approving its use on official departmental documents and records.

**USES WITHOUT REQUEST OR PERMISSION __**

**Other Military Organizations**

However unlikely this is, if another unit uses your unit's emblem, notify the emblem approval authority to take action to

stop it.

**Private Organizations, Civil Associations or Military Corporations within the Unit**

Since commanders control the use of the unit emblem, impermissible use of the emblem by base organizations is easily

stopped by the commander's order.

**Non-military Persons or Groups**

Impermissible use of a unit's emblem, symbol, name, motto, logo, or aircraft likeness may, in some instances, present

some complex problems.

Preventing the impermissible use of emblems is relatively easy. Since federal regulations authorize exclusive use of the

emblem, upon learning of an impermissible use of an emblem, have the Staff Judge Advocate contact the NGB through

channels. The NGB will contact the Department of Justice, which will instruct the local U.S. Attorney to bring a civil or

applicable criminal action in federal court to stop any impermissible use of your emblem.

Impermissible use by these non-military persons or groups of an official unit name or designation may similarly be dealt

with through the same channels. Title 18, United States Code, a federal criminal statute, designates certain names and

titles, such as the FBI, NASA, and military designations as prohibited from being used by other than those agencies.

Impermissible use of unit symbols, mottos and logos is a bit tougher to deal with. For example, a unit has been in the

community for 15 years and for much, if not all of that time, the unit has been known by everyone in that community -

in and out of the military - by a certain logo or motto. The unit calls itself the "Boys from Boise." That logo is printed on the unit letterhead and unit promotional material, and everyone in that community knows the "Boys from Boise" is that

particular guard unit. It is a source of tremendous unit pride and over the years has created much goodwill in, and excel-

lent relations with, the community Now the unit learns that a private non-military related group in the community has

legally formed a corporation - profit or non-profit - under appropriate state laws, the stated purpose of which is to fight

homosexual discrimination, enhance job opportunities for homosexuals, and provide educational programs to the public

to gain general acceptance of homosexuals [Note that the example intentionally uses a non-military group whose pur-

pose is contrary to military standards and requirements, but the analysis that follows is equally applicable to such groups

whose purpose is purely commercial, and who may fairly be said to be trading off of your unit name to their financial ad-

vantage].

_**Air National Guard Commander's Legal Deskbook**_

250

_**Chapter 7, Ethics**_

_**Section 7-10 Organizational Emblems, Symbols, and Names**_

_**Page 3**_

One can imagine the potential harm such an entity with the same name as that unit can, even indirectly, cause. People in

the community may be confused and may believe the non-military organization is part of, or sponsored or endorsed by

that unit. At the very least, a commander and his staff will spend time responding to questions about this, either in per-

sonal appearances, through the media, by telephone, or in writing -- time that could and should be spent otherwise per-

forming the mission and enhancing community relations -- not fighting to prevent community relations from being di-

luted.

**How Can This Be Stopped?**

Unfortunately, it may be too late once the outside corporation is formed, but certainly a commander should, with the as-

sistance of the Staff Judge Advocate, immediately contact the State Headquarters commander for consideration of appro-

priate action and further contact with higher headquarters for assistance.

To prevent this from happening, look to Title 18 of the United States Code. The legislative process allows for special bills (legislation) to be introduced in Congress, which prohibit the use of specified names - like the FBI and NASA - by outside agencies or groups. ( _See e.g._ , 18 U.S.C. 2459b). It is possible that Congress will pass a special bill making it a federal criminal offense to use a unit's symbol, motto, and logo. If a unit symbol, motto, or logo is sufficiently well-known in

your community, and the use of such symbol, motto or logo by an organization or person outside the unit may be "both-

ersome" to the unit, have the SJA contact the local Congressman for assistance in drafting and sponsoring such a special

bill.

Because people and organizations are constantly devising new ways to trade upon a military connection, issues will al-

ways come up that are impossible to resolve with a definitive citation or reference. Good judgment and common sense

will often dictate an appropriate result. For example, see the analysis involved in allowing a private company to use the

Air Force Recruiting Service's "AIM HIGH" logo during air shows. (OpJAGAF 1996/130, 14 Aug 96).

_**KWIK-NOTE: Know the permissible and non-permissible uses of organizational emblems, symbols and names, and act**_

_**promptly to protect your unit's good name.**_

**RELATED TOPICS:**

**SECTION**

Aerial Events, Flyovers, and Static Displays

13-2

Fundraising

7-2

Civic Organizations

6-3

Civil Associations and Military Corporations

22-2

Commercial Solicitation on Base

3-9

Community Relations Programs

6-4

Ethics

7-3

Morale, Welfare and Recreation (MWR) Programs, Activities and Facilities

22-4

_**Air National Guard Commander's Legal Deskbook**_

251

_**Chapter 7, Ethics**_

_**Section 7-11 Outside Employment of Spouses**_

_**Page 1**_

**Outside Employment of Family Members**

**Updated by Lt Col Monique J. DeSpain, October 2010**

**AUTHORITY:** DoD 5500.7-R, _Joint Ethics Regulation (JER),_ (30 Aug 93, C4, 6 Aug 98, C5, 25 Oct 05, C6, 23 Mar 06), applicable state law.

**RESTRICTIONS**

National Guard members their spouses and family members often have employment with private firms in addition to

their membership in the National Guard. Spouses and children of National Guard members may find that their employ-

ment violates State or Federal law. For example, spouses are bound by certain provisions of the Procurement Integrity

Act (41 U.S.C. 423). A spouse employed by a firm that does business with the state or the federal government must take

care to avoid a violation of state and federal regulations or even the appearance of a conflict of interest. A spouse whose

firm benefits from a contract with the unit creates the appearance of a conflict of interest which challenges the integrity

of the procurement process. While the employment history of a spouse should not affect the career potential of a mem-

ber of the unit, disclosure and common sense must be used to avoid potential liability for the unit. Commanders should

review these issues with their Staff Judge Advocate.

**AVOID CONFLICTS OF INTEREST**

The entire issue of conflict of interest is complex. The following guidance can be given to members their spouses and

children when the issue of conflict of interest is raised. Any action which might result in, or give the appearance of the

following should be avoided:

1. Using public office for private gain;

2. Preferential treatment to any person or entity;

3. Impeding Government efficiency;

4. Losing independence or impartiality;

5. Government decision outside official channels; or

6. Adversely affecting confidence of the public in the integrity of the government.

Identification of these potential conflict of interest problems will surface when members are required to file a SF 278 or a OGE SF 450. It is the responsibility of the Staff Judge Advocate, with the supervision and guidance of the Office of the

Chief Counsel, NGB, to train members of the unit concerning conflict of interest and standards of conduct matters.

_**KWIK-NOTE: Commanders should advise their members that the jobs of non-military spouses of National Guard members**_

_**may be subject to certain restrictions. You may need to supplement this topic with state law.**_

**RELATED TOPICS:**

**SECTION**

Ethics

7-3

Gifts From Outside Sources

7-6

Professional and Unprofessional Relationships

7-4

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_**Page 1**_

**Political Activities**

**Updated by Major Christopher L. Kannady, February 2015**

**AUTHORITY:** U.S.C. 441a, 441f, 441g, 441i; 5 U.S.C. 1216, 2302, 3303, 7321-7326 (The Hatch Act); 10 U.S.C. 888 and

Articles 88 and 92, UCMJ; 18 U.S.C 592-594, 596, 602-603, 606-609; 18 U.S.C. 1913 (The Anti-Lobbying Act); 49

U.S.C. 1507(a); DoD 5500.7-R, _Joint Ethics Regulation (JER)_ (17 Nov 11); DoD Directive 1344.10, _Political Activities by Members of the Armed Forces_ (19 Feb 08); AFI 10-1001, _Civil Aircraft Landing Permits_ (1 Sept 95); AFI 36-3107, _Voting Assistance_ _Program_ (27 Feb 14); AFI 51-902, _Political Activities by Members of the U.S. Air Force_ (12 Nov 10); SECDEF Message, 18 September 2002, _Department of Defense (DoD) Public Affairs Policy Guidance Concerning Political Campaigns and Elections_ ; TJAG Policy Letter 10, _Political Activities of Air Force Military Personnel_ ; DoD/GE Memorandum, 14 Apr 1995, G _uidance on Lobbying and_ _Public Relations Activities_ ; Department of Justice Memo, 18 Apr 1995, _Anti-Lobbying Act Guidelines_. _See, also,_ the Air Force Ethics Office (SAF/GCA) and the U.S. Office of Government Ethics for additional ethics resources. 

## INTRODUCTION

In the United States, the constitutional tradition of a politically neutral military establishment under civilian control includes nonpartisanship by the military and elimination of undue military influence on the political process. This princi-

ple of political neutrality is also applicable to federal employees under the Hatch Act. The Hatch Act protects the tenure

of federal employees by separating political activity from employment, promotion, and dismissal actions, and removes

federal employees from the arena of political activity.

The Joint Ethics Regulation tells us that DoD policy encourages civilian DoD employees and members of the Armed

Forces to carry out the obligations of citizenship to the maximum extent possible consistent with the restrictions im-

posed by law. While members of the Air National Guard and its civilian employees are encouraged to carry out their re-

sponsibilities as citizens, they may be, in certain situations, limited or prohibited from engaging in partisan political activities. Thus, political activities are subject to certain statutory and regulatory restrictions, and violations may be chargeable under a state Military Justice Code provision for failure to obey a lawful order or regulation, which under the UCMJ

(not applicable to Title 32 National Guard members unless activated in a Title 10 status), is Article 92.

As you read this topic, a few things should be apparent:

1. Traditional Guard members are not restricted in their political activities to the same extent as active-duty Title 10 personnel;

2. The rationale for many of the restrictions on the political activities of traditional Guard members is the use of their

position as Guard members while engaging in or supporting political activities;

3. There are more restrictions on political activities of federal technicians than on traditional Guard members; and

4. AGR members should follow the Title 10 active-duty personnel restrictions.

5. There are more restrictions on officers than enlisted personnel.

Because members of the National Guard may serve in a status under Title 32 and may also serve on active duty under

Title 10, their participation in the political process creates a number of tough issues. Members of the National Guard

may be active in local politics and some may even hold elected positions. As a result, a balance must be achieved. AFI 51-

902 is a punitive instruction. If a member of the unit is serving under Title 10 orders in excess of 30 days, the rules are

clearly restrictive. If a member of the unit is serving under Title 32, the rules are not so clear.

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Reservists and Guardsmen on active duty/Title 10 for more than 30 days must comply with the active-duty rules. (AFI

51-902). Those on active duty for less than 30 days follow the more general guidelines in para 9 of AFI 51-902. However,

remember to check your state statutes for additional restrictions on political activities. Some general guidelines are pro-

vided below to assist Commanders implement policy concerning these issues.

**DEFINITIONS**

_Partisan Political Activity_ is activity in support of or related to candidates representing, or issues specifically identified with, national or state political parties and associated or ancillary organizations. A candidacy, declared or undeclared, for national or state office, is a partisan political activity, even if the candidate is not affiliated with a national or state party.

(AFI 51-902, Attachment 1).

_Non-Partisan Political Activity_ is an activity in support of or related to candidates who do not represent, or issues not specifically identified with, national or state political parties or associated or ancillary organizations. Issues relating to Constitutional amendments, referenda, approval of municipal ordinances, and other of a similar character are not considered un-

der this Instruction as specifically being identified with national or state political parties (AFI 51-902, Attachment 1).

_Active Duty_ is full-time duty in the active military service of the United States without regard to duration or purpose, full-time duty in the Air National Guard, and full-time duty in the Air National Guard when federalized. Active duty includes

full-time training duty, annual training duty; and attendance, while in the active military service, at a school designated

as a service school by law or by the Secretary of the military department concerned (AFI 51-902, Attachment 1).

_Civil Office_ is a non-military office involving the exercise of the powers or authority of civil government, to include elective and appointive office in the U.S. Government, a U.S. territory or possession, state, commonwealth, county, municipality,

or official subdivision thereof. This term does not include a non-elective position as a regular or reserve member of a civilian law enforcement, fire, or rescue squad, nor does it include offices to which military personnel may be assigned in a

military status.

**PERMITTED ACTIVITIES**

Members may:

1. Register to vote, vote, and express a personal opinion on political candidates and issues, but not as a representative of the Air Force or DoD.

2. Promote and encourage others to exercise their voting franchise, if such promotion does not constitute use of their

official authority or influence to interfere with the outcome of any election.

3. Join a partisan or nonpartisan political club and attend its meetings when not in uniform, but not in any official capac-

ity nor listed as a sponsor (see restrictions in paragraph 4). The restriction on wearing the uniform to meetings also ap-

plies to retired and Reserve Component members.

4. Attend partisan and nonpartisan political fundraising activities, meetings, rallies, debates, conventions, or activities as a spectator when not in uniform and when no inference or appearance of official sponsorship, approval, or endorsement

can reasonably be drawn.

5. Serve as an election official, if such service is not as a representative of a partisan political party, does not interfere with the performance of military duties, is performed when not in uniform, and the Secretary of the Air Force (SECAF)

has given prior approval. **Members who violate any of these provisions are subject to prosecution under Article**

**92, UCMJ, in addition to any other applicable violation of the UCMJ or federal law**. SECAF may not delegate the

authority to grant or deny such permission.

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Requests to serve as an election official shall be forwarded through command channels to Headquarters Air Force, Office

of The Judge Advocate General, Administrative Law Directorate (AF/JAA). 1. Using public office for private gain;

6. Sign a petition for specific legislative action or a petition to place a candidate's name on an official election ballot, if the signing does not obligate the member to engage in partisan political activity and is done as a private citizen and not

as a representative of the Air Force or DoD.

7. Write a letter to the editor of a newspaper expressing the member's personal views concerning public issues or politi-

cal candidates, if such action is not part of an organized letter-writing campaign or a solicitation of votes for or against a political party or partisan political cause or candidate. If the letter identifies the member as being on active duty status (or if the member is otherwise reasonably identifiable as a member of the Armed Forces), the letter should clearly state

that the views expressed are those of the individual only and not those of the Air Force or DoD. Members must apply

this principle to personal views written for publication in all forms of print and electronic media ( _i.e._ , magazines, social media, blogging).

8. Write a personal letter, not for publication, expressing preference for a specific political candidate or cause, if the action is not part of an organized letter-writing campaign on behalf of a partisan political cause or candidate.

9. Make monetary contributions to a political organization, party, or committee favoring a particular candidate or slate of

candidates, subject to limitations under Title 2, United States Code, Section 441a and Title 18, United States Code, Sec-

tion 607.

10. Display a political bumper sticker on the member's private vehicle, with limitations ( _see_ _Prohibited Activities_ , below).

11. Wear a political button or T-shirt when not in uniform, performing military duties, or under circumstances that could

reasonably give rise to an appearance of official endorsement.

12. Participate fully in the Federal Voting Assistance Program.

**PROHIBITED ACTIVITIES**

Air National Guardsmen considered to be in an active-duty status **who engage in any of the listed prohibited activi-**

**ties are subject to prosecution under Article 92, UCMJ, and any other applicable provision of the UCMJ or fed-**

**eral law.**

Members shall NOT:

1. Participate in partisan political fundraising activities (except as permitted above), rallies, conventions (including making speeches in the course thereof), management of campaigns, or debates, either on one's own behalf or on that of an-

other. This prohibition applies whether the individual is in uniform or not, and regardless of whether an inference or ap-

pearance may be drawn of official sponsorship, approval, or endorsement. Participation includes more than mere atten-

dance as a spectator.

2. Use official authority or influence to interfere with an election, to affect its course or outcome, to solicit votes for a particular candidate or issue, or to require or solicit political contributions from others.

3. Allow, or cause to be published, partisan political articles, letters, or endorsements signed or written by the member

that solicit votes for or against a partisan political party, candidate, or cause. This is distinguished from a letter to the editor as permitted under the conditions described above.

4. Serve in any official capacity or be listed as a sponsor of a partisan political club.

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_**Page 4**_

5. Speak before a partisan political gathering, including any gathering that promotes a partisan political party, candidate

or cause.

6. Participate in any radio, television, or other program or group discussion as an advocate of a partisan political party,

candidate, or cause.

7. Conduct a political opinion survey under the auspices of a partisan political club or group, or distribute partisan political literature.

8. Perform clerical or other duties for a partisan political committee or candidate during a campaign, on an election day,

or after an election day during the process of closing out a campaign.

9. Solicit or otherwise engage in fund-raising activities in federal offices or facilities, including military reservations, for any partisan political party, candidate, or cause.

10. March or ride in a partisan political parade.

11. Display a large political sign, banner, or poster (as distinguished from a bumper sticker) on a private vehicle.

12. Display a large political sign, poster, banner, or similar device visible to the public at one's residence on a military installation, even if that residence is part of a privatized housing development.

13. Participate in any organized effort to provide voters with transportation to the polls, if the effort is organized by or associated with a partisan political party, cause, or candidate.

14. Sell tickets for, or otherwise actively promote, partisan political dinners and similar fundraising events.

15. Attend any partisan political event as an official representative of the Air Force or DoD, even without actively participating, except as a member of a joint Armed Forces color guard at the opening ceremonies of the national convention of

a political party recognized by the Federal Elections Commission, or as otherwise authorized by the SECAF.

16. Make a campaign contribution to, or receive or solicit (on one's own behalf) a campaign contribution from, any other

member of the Armed Forces on active duty, or an officer or employee of the federal government for promoting a political

objective or cause. Any contributions not prohibited by this paragraph remain subject to the gift provisions of sections

2635.301-2635.304 of Title 5, Code of Federal Regulations.

17. Participate, while in uniform, in any activity such as unofficial public speeches, interviews, picket lines, marches, rallies or any public demonstration which may imply Air Force sanction of the cause for which the demonstration or activ-

ity is conducted. Authorization to wear the uniform under certain circumstances may be granted in accordance with DoD

Instruction 1334.01, Wearing of the Uniform, as implemented by AFPD 36-29, Military Standards, and AFI 36-2903,

Dress and Personal Appearance of Air Force Personnel.

18. Engage in the public or organized recruitment of others to become partisan candidates for nomination or election to

a civil office.

19. Commissioned officers shall not use contemptuous words against the President, the Vice President, Congress, the

Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the governor or legis-

lature of any state, commonwealth, or possession in which the member is on duty or present as prohibited and punish-

able under Article 88, UCMJ.

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_**Page 5**_

20. With the exception of paragraph 19 above, and subject to any other restrictions in law, a member of the Air Force not

on active duty may take the actions and participate in the activities prohibited above, provided the member is not in uni-

form and does not otherwise act in a manner that could reasonably give rise to the inference or appearance of official

sponsorship, approval, or endorsement.

21. Activities not expressly prohibited above may be contrary to the spirit and intent of this Instruction. Any activity that may be reasonably viewed as directly or indirectly associating the Air Force or DoD with a partisan political activity or is otherwise contrary to the spirit and intention of this Instruction shall be avoided.

**CRIMINAL PROHIBITIONS**

Certain types of political activities are prohibited by federal statutes and carry criminal penalties for their violation. Some of the prohibitions listed also appear elsewhere in this topic but are repeated here because of the severe consequences of

their being violated. For example, National Guard members and federal employees of the United States may not:

1. Station troops at any place where an election is held, except to repel armed enemies;

2. During training periods when they receive federal compensation, solicit or receive contributions for any political pur-

pose from any other officer, employee or person receiving compensation for services from federal funds;

3. Interfere with the manner or methods of political elections or election officials;

4. Intimidate voters or solicit political contributions from other officers and employees;

5. Poll members of the Armed Forces to determine the nature of their votes;

6. Make political contributions to any officer or employee for the promotion of any political object; or

7. Solicit or otherwise engage in fundraising activities in federal offices or facilities, including military reservations, for a partisan political cause or candidate.

**LIMITATIONS ON POLITICAL CONTRIBUTIONS**

The laws on campaign contributions are complex. Federal law and state law greatly differ. Members must refer to the

laws of their respective states to determine restrictions on campaign contributions.

**RETIRED MEMBERS**

Generally, no statutes or regulations prohibit retired military personnel from supporting political parties or becoming can-

didates for public office. Retired personnel may also hold elective or appointive civil office. However, retired members

who use or mention, or permit the use or mention, of their military rank or grade and military service affiliation, must

clearly indicate their retired status. (AFI 51-902, para 6.1.1).

Some of the political activities not expressly prohibited would be contrary to the spirit and intent of governing regula-

tions and directives. Accordingly, in determining whether or not any activity violates the traditional concept that military personnel must not engage in partisan political activity, rules of reason and common sense apply. Any activity that reasonable could be interpreted as associating the Department of Defense, or any element thereof directly or indirectly with a

partisan political cause or candidate must be avoided.

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_**Page 6**_

**ACTIVITIES NOT EXPRESSLY ALLOWED OR PROHIBITED**

Members of the Air National Guard taking part in local partisan or nonpartisan political activity will not:

1. Wear a uniform while campaigning or use any property or facilities of the government in the campaign; or

2. Allow participation to interfere with or prejudice performance of military duties.

**CAMPAIGNING AND CONDUCTING BUSINESS ON AF OR ANG INSTALLATIONS**

Just as military members and civilians are prohibited from undue involvement with political causes, Air Force and Air

National Guard installations and resources must be protected from being used for improper political purposes.

**CAMPAIGNING - PARTISAN POLITICAL ACTIVITY**

The question of whether political candidates have a constitutional right to campaign on military installations was re-

solved by the Supreme Court in the case of _Greer v. Spock_ , 424 U.S. 828 (1976). The Supreme Court held that candidates for political office have no generalized constitutional right to make political speeches or distribute leaflets at a military installation. Furthermore, commanding officers may summarily exclude civilians from the area of their command ( _Cafeteria and Restaurant Workers v. McElroy_ , 367 U.S. 886 (1961)). This authority to exclude civilians extends to candidates for political office and enables a Commander to deny a candidate permission to enter a base in order to distribute campaign

literature or to hold meetings to discuss election issues with military personnel. However, if permission to campaign on

the base is granted to one candidate, access cannot be denied to others ( _Jenness v. Forbes_ , 351 F.Supp. 88 (D.R.I. 1972).

In 1996, the Secretary of Defense issued detailed guidance on the type of political activities that should be avoided on

military installations. Installation commanders must be careful to avoid candidates (either incumbents or new office seek-

ers) who want to use the installation for political meetings, media events (including speeches), funding events, press con-

ferences, and any other activities that can be construed as political in nature. Military newspapers may not carry "cam-

paign news, partisan discussions, cartoons, editorials, or commentaries dealing with political campaigns, candidates, or

issues." Furthermore, candidates must be reminded by Commanders that they cannot use their visits to the base as cam-

paign vehicles. Special rules apply to visits from the President, Vice-President, and Speaker of the House in an election

year. If they fly into a base to support a local candidate, that candidate cannot be present on the base, and the media can

only cover the arrival and departure of the President, Vice-President, or Speaker. News media coverage of any portion of a

political candidate's activities while on a military installation is prohibited regardless of the purpose of the "visit."

**VISITS - NONPARTISAN BUSINESS**

Public appearances on base by state or federal officials must be unrelated to candidacy for political office or a partisan political cause. Thus, a request to engage in partisan political activity on a military installation may be distinguished from a Congressional request to conduct business of a non-partisan nature with military constituents, when such activity is unrelated to candidacy for political office or a partisan political cause.

Military personnel are entitled free access to any member of Congress without fear of reprisal, a guarantee by the First

Amendment to the United States Constitution and reaffirmed by Congress and the Department of Defense. (10 U.S.C.

1034, DoDD 1354.1, and DoDD 1325.6). Air Force personnel are encouraged to carry out their responsibilities as citi-

zens of the United States. The only prohibition is that they must not engage in partisan political activities.

The DoD encourages Armed Forces personnel to participate in all appropriate aspects of local community life. Neither

DoD nor Air Force nor Air National Guard policy prohibits a member of Congress from conducting business of a nonpar-

tisan political nature with constituents on a military reservation. Such activity is not prohibited "partisan political activity" regarding preservation of traditional military neutrality and nonpartisanship but are to be construed with reason.

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_**Page 7**_

Members of Congress, in discharging the functions of their elective offices, have a responsibility to ascertain their con-

stituents' needs, whether those constituents are civilian or military citizens of the representative's district. Political neutrality should not be construed as a denial of representation, nor should it be interpreted that military personnel must be

quarantined from their elected representatives. Accordingly, it has been held that a request by a member of Congress to

temporarily park a mobile district office on a military installation, in order to conduct business with civilian and military constituents, was a request unrelated to candidacy for political office or to a partisan political cause. The installation

Commander, although not required to do so, may nevertheless grant such a request. If the current office holder is also a

political candidate who, for legitimate reasons wants to visit the installation, permission can be granted with the express

reminder that the candidate cannot use the visit as a campaign vehicle. For example, the candidate may not film cam-

paign commercials in front of aircraft on the flight-line or solicit votes from Air Force personnel on base.

**LANDING RIGHTS**

Landing rights at Air Force and Air National Guard installations by other than DoD aircraft are governed by statute (49

U.S.C. 1507(a)) and Air Force Regulation (AFI 10-1001). Air Force implementation of the statutory provision authorizes

use of airfield facilities by major political party post-convention Presidential and Vice-Presidential candidates. Such use is permitted for SECURITY REASONS ONLY and the candidate must be on board the aircraft. In addition, the regulation

sets forth guidelines for the base commander to follow:

1. Minimum officer welcoming party;

2. No special facilities need be provided;

3. No plans should be approved for on-base political rallies or speeches; and

4. No official transportation should be approved for unauthorized personnel (AFR 55-20, para. 8g (6)).

**USE OF AIR NATIONAL GUARD PERSONNEL**

In the event Air National Guard bases are visited officially by the President or Vice-President or by major party candi-

dates, base law enforcement personnel may be requested by the U.S. Secret Service to provide for military support. The

Secret Service is responsible for the protection of the President or Vice-President and major party candidates under the

law. The Secret Service is also authorized to seek assistance from other federal agencies. Consequently military (ANG)

support of the U.S. Secret Service in the performance of its protective duties is authorized and encouraged. Such military

assistance does not violate the Posse Comitatus Act (18 U.S.C. 1385).

Because of the complex and highly visible nature of this area of law, and because even the appearance of impropriety may

be deemed a violation of statute or regulation, it is strongly recommended that commanders exercise caution, review

these issues with their Staff Judge Advocates and, when in doubt, seek written opinions on the permissibility of certain

political activities from higher headquarters.

**THE ANTI-LOBBYING ACT**

To "lobby" is to engage in personal contacts or to disseminate information with the objective of influencing public offi-

cials with regard to legislation and other policy decisions. To give federal employees unfettered discretion in contacting

legislators on issues of special interest to their own agencies (direct lobbying) would result in governmental chaos. To

invite public citizens to contact legislators on behalf of agency agendas (indirect/"grass roots" lobbying) would invite corruption and undermine government hierarchy.

Recognizing these threats, Congress passed the Anti-Lobbying Act. The Act provides that appropriated funds may not be

used to pay for any services or resources designed to influence a member of Congress to favor or oppose legislation. In

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balance, commanders must ensure they do not improperly restrict a military member's right to communicate with

elected representatives, a right reinforced by 10 U.S.C. 1034. If the Anti-Lobbying Act was read literally, there could be

no communication between DoD officials and Congress. Obviously, this is not the case. However, it is difficult to distin-

guish between legitimate communications and improper persuasion without carefully researching the law in this area.

When any doubt arises, contact the Staff Judge Advocate for assistance.

_**KWIK NOTE: Distinguish among permissible and prohibited political activities among traditional Guard members, AGRs**_

_**and federal civilian employees. This topic may be supplemented by applicable state law and regulation, and has been written**_

_**in a briefing format, which with minor adjustments, may be suitable for the needs of the members of your unit. Obtain the**_

_**above-cited DoDDs for detailed guidance.**_

**RELATED TOPICS:**

**SECTION**

Access To Military Installations- General Guidelines

3-2

Commercial Solicitation On-Base

3-9

Barment

3-11

Open Houses and Free Speech

3-13

Posse Comitatus

6-7

Ethics

7-3

Freedom of Expression-Restrictions on Military Members

14-13

Congressional and Legislative Inquiries

16-6

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_**Chapter 7, Ethics**_

_**Section 7-13 Job Hunting and Post Government Employment**_

_**Page 1**_

**Job Hunting and Post-Government Employment**

**Updated by Maj Christopher A. Eason, January 2016**

**AUTHORITY:** 10 U.S.C. § 1060; 18 U.S.C. §§ 207-208; 37 U.S.C. § 908; 41 U.S.C. § 2103; 5 CFR § 2635 et seq.; DoD

5500.07-R, _The Joint Ethics Regulation_ (30 August 1993), Incorporating Through Change 7 (17 November 2011), Chapters 1, 2, 5, 8, and 9; The Federal Acquisition Regulations (FAR) 3.104-6. 

## INTRODUCTION

Everyone's government service will eventually end - either through separation or retirement. For most individuals, how-

ever, retirement (or separation) does not necessarily bring an end to their employment. Government employees facing

this milestone typically have two questions: "What can I do before I leave the government; and "What can I do after I

leave the government?" These questions appear simple, but often generate significant case-specific issues.

Government employees who plan to leave government employment and return to the private sector need to know how

federal ethics laws affect their actions - both while looking for a new job and after they have left the government. This

discussion is intended to give a broad overview of the most salient restrictions on individual activities during two differ-

ent phases: job hunting (pre-government departure) and post-government employment. There is a plethora of current

ethics information related to job hunting and post-government employment.

Importantly, fact-specific questions need to be addressed to a designated ethics counselor. DoD employees should also

know communications to and from the ethics counselor regarding job hunting and post-government employment are not

protected by the attorney-client privilege [5 CFR § 2635.107(b); JER para 9-400]. Another incentive to encourage com-

munication between the member and the agency ethics official is disciplinary action for violating this part [of the Code of

Federal Regulations] or any supplemental agency regulations will not be taken against an employee who has engaged in

conduct _in good faith reliance_ upon the advice of an agency ethics official, provided that the employee, in seeking such advice, has made full disclosure of all relevant circumstances. [5 CFR § 2635.107(b)]. Note, the good faith reliance defense

will be considered by the Department of Justice in its case selection process, but it is not an absolute bar to federal criminal prosecution in violation of 18 U.S.C. §§ 207-08, or other criminal violations. [5 CFR 2635.107(b)]

**PHASE I: LIMITATIONS ON JOB HUNTING**

Military personnel are not generally prohibited from negotiating for future employment while still employed with the

government. However, while these negotiations are ongoing, members must disqualify themselves from taking any ac-

tion on matters that involve the targets of their employment negotiations. The following rules limit a government em-

ployee's ability to send resumes to companies or to discuss post-government employment prior to leaving the govern-

ment. What follows is not an exhaustive list of the limitations, but a discussion of the most topical:

1. _The Financial Interest Rule [18 U.S.C. § 208(a); 5 CFR § 2635.604; JER 8-100]_ : In general, a government employee is banned from seeking employment with a company while he/she is "participating" personally and substantially in a government contract or other matter in which that company has a financial interest. This rule applies to officers, enlisted,

and civilians. It is not limited to procurement officials; it applies to all personnel in any career field or occupation. "Participating" includes the following acts with regard to a particular matter: making decisions, giving advice to others, mak-

ing recommendations to others, conducting evaluations, assigning work to others, giving approval/disapproval, or partici-

pating in an investigation. Employees may not contact a company regarding employment until he/she stops participating

in the matter or receives written approval of disqualification from all duties involving the company.

2. _The Employment-Contact Reporting Rule [41 U.S.C. § 2103; FAR 3.104-3(c)]_ : If an employee is participating personally and substantially in a procurement and he/she contacts or is contacted by a bidder or offeror in that procurement regarding

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_**Page 2**_

possible employment, he/she must immediately report the contact in writing to his/her supervisor and to the designated

agency ethics official. Subsequent to the report, the employee must then either: (1) reject the possibility of employment

or (2) disqualify himself/herself from further personal and substantial participation in the procurement. This rule ap-

plies to officers, enlisted, and civilians, but only applies to contracts in excess of the simplified acquisition threshold, which is generally $150,000. [FAR 2.101].

3. _Reimbursement of interviewing expenses [5 CFR § 2635.204(e)(3)]_ : Employees may accept reimbursement from prospective employers for meals, lodging, transportation, and other benefits in connection with bona fide employment discussions if

(1) they are customarily provided by the prospective employer in connection with bona fide employment discussions,

and (2) if the employer has interests that could be affected by performance or nonperformance of the employee's duties,

acceptance is only permitted if the employee first has complied with the disqualification requirements found in CFR §

2635.601-606 (Subpart F of CFR 2635). This rule applies to officers, enlisted, and civilians.

4. _Ban on communicating inside information to a prospective employer [5 CFR § 2635.703]_ : Employees are prohibited from disclosing "non-public information" to companies or other organizations with which they are seeking employment. This rule

applies to officers, enlisted, and civilians.

5. _Prohibition on the use of government resources [5 CFR § 2635.704; JER 2-301]_ : Another area of concern is the temptation to use government resources in personal job searches. The CFR and the JER specifically state that the use of government

property, time, and subordinates is for official use and authorized purposes only. Potential violations include using the

office computing resources to draft and print resumes, asking a secretary to type cover letters, or using the phone for

long distance phone calls to prospective employers. That said, use of federal government resources is permitted for "job-

searching in response to federal government downsizing." [JER 2-301a(2)(c)].

**PHASE II: LIMITATIONS ON POST-GOVERNMENT EMPLOYMENT**

The primary post-government service restriction is found at 18 USC § 207, as implemented by 5 CFR § 2641 (JER Chap-

ter 9). While the statute contains six substantive prohibitions, three from this particular statute are discussed below. The omitted rules apply mainly to "senior employees." Also below is a discussion concerning conflicts regarding employment

of reserves and retired members by foreign governments.

1. _The lifetime representation ban [18 USC § 207(a)(1)]_ : Under this restriction, an employee is banned for life from attempting to influence the government regarding a government contract or other matter in which he/she participated in person-

ally and substantially as a federal employee. The purpose of this rule is to keep individuals from "switching sides" and

representing a company on a particular matter in which they worked on while employed with the government. This life-

time ban does not apply in certain circumstances listed in 5 CFR § 2641.201(b), including an individual providing testi-

mony under oath; however, there are special rules for providing expert testimony. This restriction applies only to officers

and civilians. Enlisted personnel are exempt.

2. _The two (2) year representation ban [18 USC § 207(a)(2)]_ : Under this rule, an employee is banned for two years from attempting to influence the government regarding a government contract or matter in which the employee did not person-

ally and substantially participate in, but was under his/her official responsibility during the last year of government em-

ploy. The rule disallows appearances before any officer or employee of any department, agency, court, or court-martial of

the U.S. or the District of Columbia, but does not preclude providing sworn testimony before the U.S. Congress. Like the

lifetime representation ban, this restriction only applies to officers and civilians; enlisted personnel are exempted.

3. _The one (1) year ban on aiding/advising the "other side" in trade or treaty negotiations [18 USC § 207(b)]_ : For one year after leaving government employment, an employee is prohibited from knowingly representing, aiding, or advising any other per-

son (except the United States) concerning any ongoing trade or treaty negotiations in which, during their last year of gov-

ernment service, he/she participated personally and substantially. This rule applies only to officers and civilians; enlisted personnel are exempt.

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_**Chapter 7, Ethics**_

_**Section 7-13 Job Hunting and Post Government Employment**_

_**Page 3**_

4. _The Rules Against Foreign Activity_ [37 USC § 908; JER 9-601; 10 U.S.C. § 1060]: First, retired military members may not, without prior approval from the concerned Secretary of the Military Department and the U.S. Secretary of State, work for

a foreign government, or an educational or commercial institution owned/operated/controlled by a foreign government.

The penalty is withholding/reclaiming retired pay in an amount equal to the foreign salary illegally received. [JER

9-601a.(3)] Second, serving in the armed forces of a foreign government will result in loss of retired pay as well, unless it is authorized by the concerned Secretary of the Military Department and the US Secretary of State and is determined by

the same that the foreign nation concerned is a newly democratic nation. Third, retired military members who voluntar-

ily renounce their US citizenship will also lose their retired pay. This rule applies to officers and enlisted personnel.

_**KWIK-NOTE: "Switching of sides" undermines confidence in governmental fairness and creates the impression that personal**_

_**influence, gained by government affiliation, is decisive. Individuals must avoid any activity that would affect the public's con-**_

_**fidence in the integrity of the federal government, even if such activity were not an actual violation of the law.**_

**RELATED TOPICS:**

**SECTION**

Ethics

7-3

_**Air National Guard Commander's Legal Deskbook**_

263

_**Chapter 7, Ethics**_

_**Section 7-14 OGE Form 450 and OGE Form 278: Financial Disclosure Forms**_

_**Page 1**_

**OGE Form 450 and OGE Form 278: Financial Disclosure Forms**

**Updated by Maj Christopher A. Eason, January 2016**

**AUTHORITY:** Executive Order 12731, _Principles of Ethical Conduct for Government Officers and Employees,_ 17 October 1990; 5

CFR §§ 2634.901-909; DoD 5500.07-R, _The Joint Ethics Regulation_ (30 Aug 1993), Incorporating Through Change 7 (17

Nov 2011), Chapter 7; OGE Form 450 (June 2015); OGE Form 278 (March 2014); 31 March 1998 Federal Register (Vol-

ume 63, pages 15273-15274); OpJAGAF 2000/38, 22 May 2000, certified current on 30 Sept 2015, _Requirement for IMPAC_

_Holders to File an OGE Form 450_. For issues involving the releasability of confidential financial disclosure reports, _see Meyer-hoff v. EPA_ , 728 F.Supp. 613 (N.D. Cal. 1990), affirmed 958 F.2d 1498 (9th Cir. 1992). 

## INTRODUCTION

Individuals often wonder why the military spends so much time and effort collecting financial information and compiling

annual reports. The reason is simple: conflict of interest rules would be ineffective without a way to collect and review

the financial interests of key military members and civilian employees. The financial disclosure system is a tool for man-

aging workflow and assignments, while at the same time avoiding any actual or perceived conflicts of interest. Conflicts

cannot be prevented if no one knows where they are likely to arise.

The Code of Federal Regulations (CFR) and the Joint Ethics Regulation (JER) list who must file, outline the required con-

tents in the reports, and mandate filing times. The requirements are made applicable to the National Guard via the defini-

tion of "DoD Employee." This includes any Reserve or National Guard member performing official duties or functions

under the authority of either Title 10 or 32, United States Code, or while engaged in any activity related to the perform-

ance of such duties or functions, including any time the member uses his or her United States Reserve or National Guard

title or position, or any authority derived there from. (JER 1-209).

**OGE FORM 278**

The DoD uses two different financial disclosure forms, the OGE Form 278, _Executive Branch Personnel Public Financial Disclosure Report_ and the OGE Form 450, _Executive Branch Confidential Financial Disclosure Report._ Which form an individual must use depends on rank/grade, position, and level of responsibility. The OGE Form 278 is a public record of information

filed by civilian presidential appointees, active-duty general officers, reserve general officers who serve on active duty

more than 60 days in a calendar year, members of the Senior Executive Service (SES), and certain special government em-

ployees whose positions are above the GS/GM-15 level. A new entrant report must be filed within 30 days of assuming

one of these positions. ****

**OGE FORM 450**

**WHO MUST FILE**

Any individual who holds a "covered position" as described in JER 7-300 is required to file an initial and annual OGE

Form 450. Individuals in "covered positions" include the following groups of persons who must file an OGE Form 450: ****

Commanding officers, heads and deputy heads, and executive officers of all Air Force installations, bases, air stations, or

activities (JER 7-300a(1)); ****

Special government employees when specifically requested to do so by their supervisor (JER 7-300a(2));

All military members (0-6 and below) and all civilian employees (GS/GM-15 and below) including individuals serving on

detail under the Intergovernmental Personnel Act, when their official position requires them to participate personally

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_**Section 7-14 OGE Form 450 and OGE Form 278: Financial Disclosure Forms**_

_**Page 2**_

and substantially through decision or exercise of significant judgment, and without; substantial supervision and review,

in taking an official action for contracting or procurement, administering or monitoring grants, subsidies, licenses or

other federally conferred financial or operational benefits, regulating or auditing any non-federal entity, or other activities in which the final decision or action may have a direct and substantial economic impact on the interests of any nonfederal entity (JER 7-300a(3)(a)); and ****

Any DoD employee serving in a position whose supervisor determines that the duties and responsibilities of the position

require the DoD employee to file a report to avoid an actual or apparent conflict of interest and to carry out the purpose

of any statute, Executive Order, or regulation applicable to or administered by that reporting individual. (JER 7-

300a(3)(b); _see also_ 5 C.F.R. § 2634). ****

Identification of required filers should focus on those persons in key positions with significant responsibilities affecting outside parties. Generally, personnel engaged in the following activities should file an OGE Form 450:

Contracting or procurement;

Administering or monitoring grants, subsidies, or licenses;

Regulating or auditing non-federal entities; and

Activities which will have a direct and substantial economic effect on a non-federal entity. ****

The requirement to file does not simply apply to "decision makers." Instead, it includes those who provide advice, make

recommendations, investigate, or make similar contributions to a matter that has an economic effect on entities. An indi-

vidual's job title should not be the sole determinant of whether he or she must file an OGE Form 450. Look to the nature

of their activities. Also, some employees perform additional or special duties ( _e.g._ contracting officer's representative, source selection committee member, technical evaluation team member, etc.). These activities may require filing even

though their normal duties do not.

As a general rule, employees who are authorized with normal purchasing responsibilities to make government purchases

through the Government Purchase Card Program (formerly referred to as IMPAC – International Merchant Purchase

Authorization Card), are not automatically required to file an OGE Form 450. The decision on whether the employee

needs to file the form rests with his or her supervisor. (OpJAGAF 2000/38, 22 May 2000, certified current 30 Sep 2015).

Pursuant to JER 7-300a(b)(2), employees who are not employed in contracting or procurement, but who have decision-

making responsibilities for expenditures of less than $3,000 per purchase, and less than $20,000 cumulatively per year

are excluded from the requirement to file the OGE Form 450. However, those DoD employees remain subject to conflict

of interest statute and regulations and may be required to file the OGE Form 450 in certain cases. (JER 7-300a(b)(1)). ****

**CONTENT OF OGE FORM 450**

The OGE Form 450 contains detailed instructions and examples on how to complete the report. Further guidance is avail-

able at 5 CFR § 2634.907 and 908, and on the OGE website at http://www2.oge.gov. General examples of what the member in a covered position is required to report include particular assets and income, particular liabilities, particular positions held outside the U.S. Government, and particular gifts and travel reimbursements. The reporting requirements may

extend to the member's family members in certain circumstances as well.

**WHEN AND WHERE TO FILE**

The OGE Form 450 must be filed within 30 days after assuming a covered position and annually thereafter, assuming the

individual serves in the covered position for at least 61 days. (JER 7-303a and b). The annual reports must be filed with

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_**Section 7-14 OGE Form 450 and OGE Form 278: Financial Disclosure Forms**_

_**Page 3**_

the filer's ethics counselor by 15 February each year. (JER 7-303b). The report covers a filer's financial status for the previous fiscal year. On most active duty Air Force installations, OGE 450s are forwarded to the servicing base SJA. In the

National Guard, traditional practice is typically more centralized to the state headquarters level. Typically, NGB-JA sends

an annual suspense dated memorandum to each state's adjutant general and state headquarters judge advocate, requiring

each state to provide a list of all employees determined to occupy covered positions. Although the JER does contain

some sample forms, most of these are outdated. Please contact the servicing SJA for the most current form versions. _****_

_**KWIK-NOTE: Individuals whose official positions requires them to participate personally and substantially in taking an offi-**_

_**cial action for contracting or procurement matters should file an OGE Form 450.**_

**RELATED TOPICS:**

**SECTION**

Ethics

7-3

_**Air National Guard Commander's Legal Deskbook**_

266

_**Chapter 7, Ethics**_

_**Section 7-15 Conflicts of Interest**_

_**Page 1**_

**Conflicts of Interest**

**Updated by Maj Christopher A. Eason, January 2016**

**AUTHORITY:** DoD 5500.07-R, _The Joint Ethics Regulation_ (30 August 1993), Incorporating Through Change 7 (17 November 2011); 18 U.S.C. § 201, et seq. and 18 U.S.C. §§ 666, 1346; _see also_ the United States Office of Government Ethics website at http://www.usoge.gov/ and The U.S. Department of Defense Standards of Conduct Office at

http://www.dod.mil/dodgc/defense_ethics/. 

## INTRODUCTION

A conflict of interest can arise for any federal employee. Stated simply, a "conflict of interest" is a situation where an employee's (or family's) personal interests conflict (or appear to conflict) with the faithful performance of official duties.

The key for ANG members and commanders is to recognize the conflict in time to avoid it.

Several of the most basic conflict of interest rules are actually federal criminal statutes, such as bribery of public officials and witnesses (18 U.S.C. § 201), acting as an agent or attorney for another person before any federal department, agency

or court when the United States has a direct and substantial interest (18 U.S.C. § 205), and accepting pay or pay supple-

ments from any source other than the United States for the performance of official duties (18 U.S.C. § 209; see also 18

U.S.C. §§ 666, 1346). These statutes are implemented by 5 C.F.R. § 2635, subparts D (conflicting financial interests), E

(impartiality in performing official duties), and F (seeking other employment).

Chapter 5 of the JER contains practical guidance on conflicts of interests involving reservists, including acts affecting a

personal financial interest. The analysis is analogous to that used when evaluating an ANG member. Supervisors must

screen the training duties of their traditional guardsmen to ensure that no actual or apparent conflict exists between the

guard member's private interests and his or her duty assignments. Similarly, ANG members have a duty to reveal infor-

mation to their supervisors when they realize there might be a conflict of interest between their private employment and

the task they have been given as a military person.

**IS THERE A CONFLICT OF INTEREST?**

In deciding whether a guard member has a conflict of interest, it is necessary to analyze the situation under two separate

rules: the "basic conflicts rule" and the "impartiality" rule.

**THE BASIC CONFLICTS RULE**

The "basic conflicts" rule is: A member may not work for the government on a particular matter that will affect his or her

financial interest. Knowing key definitions will allow a careful analysis of the facts at hand.

A particular matter is something that involves deliberation, decision, or action focused on the interests of specific per-

sons, or a discrete and identifiable class of persons. Examples of a particular matter are a contract, an application, a

claim, a request for ruling, or a judicial proceeding. A broad policy decision or legislation that applies to the public as a whole is not considered a particular matter.

"Financial interest" means not only the member's financial interests, but also the financial interests of others with whom

he has certain relationships. Those others include: a spouse, a minor child, a general business partner, an organization in

which the member is serving, with or without compensation, as an officer, director, trustee, general partner, or employee,

and any individual or organization with whom the member is negotiating or has made any arrangements for future em-

ployment.

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_**Section 7–15 Conflicts of Interest**_

_**Page 2**_

**THE IMPARTIALITY RULE**

Under the "impartiality" rule, a member may not work for the government on a particular matter if: (1) a person whom

they know either has a financial interest that will be affected by that matter, or is, or represents, a party to that matter, and (2) the member's impartiality in the matter would reasonably be questioned.

A particular matter under the impartiality rule is the same as that under the basic conflicts rule.

A person whom the member knows includes several categories of persons who automatically qualify as persons known.

These include those people with whom the member has a personal relationship, a business/organizational relationship,

or an employment relationship. A member has a personal relationship with members of their household (all those who

live with the member, including significant others, adult children, and roommates), their relatives (family members by

blood or marriage), and their friends. A member has a business relationship with any person with whom they have or

seek a contractual or other financial relationship, other than a routine consumer transaction. A member has an organiza-

tional relationship with any organization in which they are active – such as by serving as an official or a committee chair-

person, or investing substantial time into promoting a program for an organization. Merely paying dues is not active par-

ticipation and participation in political parties is excluded. An employment relationship exists when the member, spouse,

parent, or dependent child have or are seeking a job. The employment may be either compensated or uncompensated,

and may include work in any status, including as an employee, consultant, independent contractor, or otherwise. A mem-

ber also has an employment relationship with any person for whom they have worked within the last year, compensated

or not.

A member's impartiality is reasonably questioned when a reasonable person who knows the relevant facts would ques-

tion the member's impartiality in the matter. ****

**EXEMPTIONS**

Just because an employee has a conflict of interest does not mean they are automatically barred from working on that

matter. Several exemptions are set forth in the statutes. Consult the Staff Judge Advocate to see if any apply.

**REMEDIES**

If a conflict exists and no exemption applies, the member can remedy the conflict. In other words, when a conflict is

remedied, it goes away. One remedy is disqualification. In this situation, the member does not work for the government

on the particular matter in which there is a conflict. Disqualification must be practicable for the office in the specific case.

Divestiture, or getting rid of an asset, is another remedy. Other possible remedies include reassignment or transfer to a

new government position or resignation from an outside position. ****

_**KWIK NOTE: Recognize the areas of danger in which conflicts of interests may arise.**_

**RELATED TOPICS:**

**SECTION**

Ethics

7-3

Off -Duty Employment

7-9

Outside Employment of Spouses

7-11

Standards of Conduct—Statement of Affiliations and Financial Interests

7-14

Contracting Pitfalls

25-8

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_**Chapter 7, Ethics**_

_**Section 7–16 Support of Non-Federal Entities**_

_**Page 1**_

**Support of Non-Federal Entities**

**Updated by Major Christopher A. Eason and Captain Joel G. Kintsel, January 2016**

**AUTHORITY:** 5 C.F.R. § 2635.101; 5 C.F.R. § 2635.808; 5 C.F.R. § 2635.704; 10 U.S.C. § 2012; 32 U.S.C. § 508; DoDD

5410.18, _Public Affairs Community Relations Policy_ (20 Nov 01); DoDI 5410.19, _Public Affairs Community Relations Policy Implementation_ (13 Nov 01); DoD 5500.07-R, _The Joint Ethics Regulation_ (30 Aug 93), Incorporating Through Change 7 (17 Nov 11); DoDI 1344.07, _Personal Commercial Solicitation on DoD Installations_ (30 Mar 06); AFI 36-2925, _Personal Commercial Solicitation on Air Force Installations_ (28 Aug 13); DoDD 1100.20, _Support for Eligible Organizations and Activities Outside DoD_ (12

Apr 04); AFI 32-9003, _Granting Temporary Use of Air Force Real Property_ (19 Aug 97); AFI 10-503, _Strategic Basing_ (27 Sept 10); AFI 36-2250, _Civil-Military Innovative Readiness Training_ (1 Mar 99); AFI 36-3101, _Fundraising Within the Air Force_ (12

July 02); NGB Memorandum For All National Guard Bureau Personnel _, Support for Military Associations_ (3 Dec 15); AFI

25-201, _Intra-service, Intra-agency, and Inter-agency Support Agreements Procedures_ (18 Oct 13); _see also_ SAF/GC, _Ethics Resources_ and _DoD Ethics Resource Library_. 

## INTRODUCTION

One of the most frequent standards of conduct issues involves determining when to allow DoD personnel and resources

to be used in support of non-federal entities. The two main authorities for consideration are the JER and the DoD issu-

ances. The rules governing this arena are based upon two basic principles of public service: employees shall protect and

conserve federal property and shall not use it for unauthorized purposes (5 C.F.R. § 2635.101(b)(9)); and employees

shall act impartially and not give preferential treatment to any private organization or individual (5 C.F.R. §

2635.101(b)(8)). In other words, Congress appropriates funds for the DoD to ensure the protection of our nation and to

carry out military operations in support of national defense. Ordinarily, this mission does not include lending assistance

to private entities or functions, even for worthwhile activities or charitable events. Exceptions exist when assistance to

the private entity can be reconciled with defense objectives or when Congress specifically authorizes use of DoD re-

sources for non-defense purposes. This chapter addresses unit and individual support of non-federal entities.

**DEFINITION OF NON-FEDERAL ENTITY**

JER 1-217 defines a non-federal entity as a self-sustaining, non-federal organization established and maintained by indi-

viduals acting outside the scope of federal employment. These entities can operate on military installations if approved

by DoD authorities under applicable regulations. Look to JER 3-210 and 3-211 for further amplification.

**GENERAL POLICY**

It is DoD policy that fostering good relations with communities at home and abroad is in the best interest of the DoD.

Well-planned activities help earn public support and enhance greater public understanding of operations, missions, and

requirements of military service.

**AIR FORCE/AIR NATIONAL GUARD SUPPORT TO NON-FEDERAL ENTITIES**

**Co-Sponsorship**

A DoD component is not required to co-sponsor any event, and often co-sponsorship will not be in the best interests of

the Air Force or Air National Guard, but under certain circumstances, the ANG may co-sponsor certain types of events

and activities. JER 3-206 states a DoD component is a co-sponsor if it develops the "substantive aspects" of an activity or

provides "substantial logistical support" for an event. The non-federal entity must be a "recognized scientific, technical,

educational, or professional organization" and CANNOT be a commercial business. The SAF/GC has delegated authority

to recognize these entities under JER 3-206(b)(3) to the local ethics counselor. There also MUST be a written agreement

between the DoD entity and the non-federal entity complying with JER 3-206(b)(4) and AFI 25-201, paragraph 1.9.6.

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_**Chapter 7, Ethics**_

_**Section 7-16 Support of Non-Federal Entities**_

_**Page 2**_

Approval procedures depend upon the activity. If it is a civic or community event that the head of the DoD component or

organization has determined is not related to the purpose or business of the non-federal entity, JER 3-206(a) permits ap-

proval. If it is a conference or seminar, follow steps in JER 3-206(b) to obtain approval. ****

**Incidental Participation**

Except as provided, the ANG's participation in an event sponsored by a non-federal entity must be _incidental_ to the events (except for those events open to the general public, those events where there is no charge, and patriotic events).

**Endorsement**

Undoubtedly, many organizations would like to have the Air National Guard's stamp of approval on their services, prod-

ucts, or enterprises. Connecting the DoD or military services to a private activity enhances its public image and encour-

ages support of the event. One of the most often cited provisions in the JER is 3-209. It states that direct or implied en-

dorsement of a non-federal entity's event, product, service, or enterprise is prohibited in any sort of official capacity, except those non-federal entities listed in JER 3-210, discussed below. This applies whether the event is co-sponsored or

not. Titles, positions, or organization names may not be used to suggest official endorsement or preferential treatment of

any non-federal entity, except the Combined Federal Campaign, emergency and disaster appeals approved by OPM, fund-

raising activities in support of the military service aid societies (Army Emergency Relief, Navy Marine Corps Relief Soci-

ety, and the Air Force Assistance Fund), and other organizations composed primarily of DoD personnel or their families,

when fundraising among their own members and for the benefit of their own members or family members, and when

approved by the head of the DoD component command or organization.

As a rule, official endorsement of private activities is prohibited. This is true even for non-profit groups and charitable

organizations that exist solely to do good things for others. Although saying, "no" to these groups may be harder than

turning down commercial profiteers, the rule applies to both, except for the very short list of sanctioned charities. See

JER 3-210. No matter how worthy an entity or event may be, DoD must maintain neutrality regarding non-federal enti-

ties and events. As such, all words of praise for any non-federal entity or event should be avoided. Because an Air Na-

tional Guard unit could not possibly endorse all worthy organizations equally, it must praise none of them.

**Logistical Support and Charitable Fundraising**

Many requests involve lending DoD employees, in their official capacities, and DoD facilities and equipment in support

of private ventures, including charitable fundraising. The general rule is that use of federal government resources, to in-

clude personnel, equipment, facilities, and property, is restricted to "official government use" only. However, the JER sets out a 7-part analysis to determine if the use of DoD personnel and/or equipment is appropriate under the circumstances.

The decision authority is the head of the DoD command or organization that has been asked to provide the support.

The test to determine if DoD logistical support should be provided to a non-federal entity is found in JER 3-211(a) and is

as follows:

1. The support does not interfere with the performance of official duties and would in no way detract from readiness;

2. Air National Guard community relations with the immediate community and/or other legitimate DoD public affairs,

or military training interests are served by the support;

3. It is appropriate to associate with this event (i.e. neither the Air National Guard unit nor DoD will be embarrassed).

4. The event is of interest and benefit to the local civilian community, the DoD component command, or the organization

providing support;

5. The Air National Guard unit is able and willing to provide the same support to other comparable events that meet the

criteria of this subsection and are sponsored by other similar non-federal entities.

6. The use is not restricted by other statutes or regulations; and

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_**Chapter 7, Ethics**_

_**Section 7-16 Support of Non-Federal Entities**_

_**Page 3**_

7. No admission fee, beyond what will cover the reasonable cost of sponsoring the event, is charged for the event, the

promotion of the event supported by DoD, or DoD support to the event is incidental to the entire event.

For charitable fundraising specifically, the test for determining whether DoD logistical support may be provided is also

found in JER 3-211(a). DoD resources may be used to provide limited logistical support to the charitable activity (remem-

ber, no endorsement unless listed in JER 3-210!) if the first six of the seven requirements set forth in section 3-211(a)

above are met and the sponsoring non-federal entity is not affiliated with the CFC (including local CFC) or, if affiliated

with the CFC, the Director, OPM, or designee, has no objection to DoD support of the event. OPM has no objection to

support of events that do not fundraise on the federal government workplace. What constitutes the "workplace" is deter-

mined by the head of the DoD Component command or organization. Also, refer to the requirements provided in DoDD

5410.18. Keep in mind when a policy conflict arises related to fundraising within DoD, the JER takes precedence.

Importantly, as just noted in the preceding paragraph, JER 3-210 sets forth specific charities that the DoD CAN officially

endorse. If the organization is not listed, discover what the "unlisted" organization plans to do with the money. If it is

giving all the funds to "listed" organization in JER 3-210, support may still be appropriately authorized.

Certain organizations have statutory authority for fundraising support and are listed in JER 3-212. These organizations

include, for example, the Combined Federal Campaign, the American Red Cross, and the National Military Associations.

Congress has also recognized a special relationship between the Air National Guard and certain youth and charitable or-

ganizations set forth in 32 U.S.C. § 508. These organizations include: The Boy Scouts of America, The Girl Scouts of

America, The Boys Clubs of America, The Girls Clubs of America, The YMCA, The YWCA, The Civil Air Patrol, The

United States Olympic Committee, The Special Olympics, The Campfire Boys, The Campfire Girls, The 4-H Club, The

Police Athletic League, and any other youth or charitable organization designated by the Secretary of Defense.

As noted in the above checklist regarding JER 3-211(a), number 6, government support must also comply with all other

statutes and regulations. When making a determination on whether to provide support to a non-federal entity, see if it

can be justified because the event or activity furthers DoD public affairs or recruiting interests. Even if it does, the event or activity must still comply with JER requirements. (An example of an approved activity was the Winston Cup race

where five vehicles entered in the race were painted to represent the different branches of service.)

Although the JER has significant coverage on the issue of logistical support, additional authorities come into play. The

majority of these authorities are usually triggered by the nature of the facility the non-federal entity seeks to use. In addition to those site-specific authorities, the following legal authorities are emphasized below:

**DoDD 5410.18, _Community Relations_** ****

This directive sets forth guidance and policy for all levels and areas of interaction between the military and civilian com-

munity with a view toward achieving and maintaining good relations. The directive specifically sets forth policy that fos-

ters "initiative, imagination, and judgment by every individual," relying on commanders to exercise good leadership and

judgment. Overall, the directive contains another checklist of sorts to determine when and if support of non-federal pub-

lic events is permissible. Essentially, this checklist reflects those factors set forth in JER 3-211. Support is authorized

when the following general requirements are satisfied. For specific details, _see_ DoDD 5410.18.

1. Support is in the best interests of the Department;

2. The event is of _general_ interest/benefit to the community;

3. The sponsor of the event is a government organization, broad-based civic organization, veterans organization, or an

organization that promotes patriotism/national security/heritage, or such support is specifically authorized by law;

4. There is no direct DoD endorsement of a private religious or political group;

5. Access is available to all without regard to race, creed, color, national origin, or gender;

6. DoD support is incidental to the overall program and not used for commercial interests (minor admission

charge is allowed as long as the military is not the primary attraction);

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_**Chapter 7, Ethics**_

_**Section 7-16 Support of Non-Federal Entities**_

_**Page 4**_

7. Military members are not used for "menial" tasks ( _e.g._ , ushers, bag handlers, guards, escorts for beauty pageants, messengers, or parking lot attendants);

8. DoD support is not offered/provided in competition with resources commercially available; and

9. No money passes to the military for their support.

**AFI 32-9003, _Granting Temporary Use of Air Force Real Property_**

This instruction contains several provisions that explain procedures for granting temporary use of real property owned

and controlled by the Air Force. The various provisions discuss authorization procedures for different kinds and lengths

of real estate uses. Some uses may be authorized by the installation commander; some require MAJCOM approval. Of

particular interest is paragraph 1.1. According to this paragraph, the installation commander can grant temporary use of

Air Force property to others if:

1. The Air Force is not using the property or does not need it for military purposes now;

2. Such use does not interfere with the mission;

3. Use does not cost the Air Force much money; and

4. Use is compatible with Air Force needs, security, and safety.

Under paragraph 1.4 MAJCOM approval is required when:

1. A lease/license/permit to use Air Force real property exceeds five years;

2. A lease or license to use Air Force real property has revenues/services that exceed $200,000 per action, per year;

3. There is a waiver of the policy requiring competition; and

4. A lease or license to use Air Force real property is done for a religious purpose.

**AFI 10-503, _Strategic Basing_**

Requests by non-federal entities for use of an ANG installation for more than a year and requests for outgrants of Air

Force property to any non-federal entity which exceed one year, or for a permanent beddown, are governed by AFI 10-

503. _See_ paragraph 10 for detailed guidance in these situations.

_**Civil-Military Innovative Readiness Training (IRT)**_

10 U.S.C. § 2012, DoDD 1100.20, and AFI 36-2250 allow military units to provide certain types of civic and community

assistance as "readiness training." Healthcare, transportation, general engineering and infrastructure support, among

other resources, can be provided to federal, state, and local governmental entities and youth and charitable organizations

detailed in 32 U.S.C. § 508(d) (discussed above). Procedural requirements in AFI 36-2250 must be satisfied and the sup-

port must be coordinated through SAF/MIR and approved by OASD/RA.

Some of the requirements: Requestor must be an "eligible entity," responsible official must submit the request in writ-

ing, requestor must certify the support is not reasonably available from a commercial entity (or entity impacted agrees),

support must meet valid unit training requirements, quality of training cannot be adversely affected, member must per-

form tasks in his or her AFSC, and no significant increase in cost of training. Although the approval process is cumber-

some, and support to community appears more limited, Air National Guard members receive federal pay and protections

from liability. The determination of "reasonably available" may take into account whether requesting entity can afford to

address the need without assistance of military. The "valid unit training requirement" does not apply in a case in which

the unit assistance consists primarily of military manpower, and the total amount of such assistance on a particular pro-

ject does not exceed 100 hours. Use of military aircraft is prohibited and government vehicles should only be used to pro-

vide transportation for personnel.

Special funding may be obtained for these projects. _See_ AFI 36-2250.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 7, Ethics**_

_**Section 7-16 Support of Non-Federal Entities**_

_**Page 5**_

**MILITARY ASSOCIATIONS**

****

**National Military Associations (NMAs) __**

Many members of the Air National Guard participate in various military associations. Although they are non-federal enti-

ties, some military associations are "National Military Associations" (NMAs) meaning they are associations directly ori-

ented to the United States military, national in scope and designated as an NMA by the Assistant Secretary of Defense

for Public Affairs. Examples of NMAs include the National Guard Association of the United States (NGAUS), the En-

listed Association of the National Guard of the United States (EANGUS) and the Reserve Officers Association of the

United States (ROA).

When a military association is designated as an NMA, a limited amount of military support is permissible. The Secretar-

ies of the Military Departments are allowed to provide a modest level of support to the annual conferences of designated

NMAs, including limited transportation, communications, and security, medical and administrative support. Such sup-

port is restricted to a NMA's national conference and cannot be extended to regional or local chapters of the NMA. Sup-

port and cooperation with regional or local chapters of a NMA can only be offered under JER requirements in Chapter 3. _****_

**Military Associations not Designated as NMAs**

In addition to NMAs, other types of non-federal entity associations focus on military professionalism and advancing spe-

cific interests within the military. These types of associations may focus on specific military units, military events, occupational fields, gender and ethnic groups or certain geographic regions. Examples include the Armed Forces Foundation

(AFF), the Armed Forces Services Corporation (AFSC) and the Military Officers Association of America (MOAA).

No official process or authority exist to recognize a military association not designated as a NMA or to provide the same

level of support given a NMA. Support and cooperation may only be provided in accordance with the requirements of

JER, Chapter 3.

**PERMISSIBLE TYPES OF SUPPORT FOR MILITARY ASSOCIATIONS**

**Communications**

Senior leaders may write official letters thanking a military association for its support of the military, the community, or to acknowledge past contributions, services or assistance. However, when referring to a military association, senior leaders should only convey factual information and not use terms communicating or implying endorsement.

Military associations may place flyers and membership applications in installation common areas as long as similar

groups are provided with the same opportunity.

Military e-mail may be used to provide information about events sponsored by military associations as long as such com-

munications are in compliance with the JER and applicable public affairs instructions and are not related to fundraising

or membership drives. Specifically, commanders may allow limited use of e-mail to announce events sponsored by mili-

tary associations. Before doing so, a commander must determine the support --

1. Serves a legitimate public interest,

2. Does not interfere with the performance of official duties or detract from readiness,

3. Conforms to the policies of the theater combatant commander and MAJCOM,

4. Is of reasonable duration and frequency,

5. Does not overburden the communications system,

6. Does not reflect adversely on DoD or the Air National Guard, and

7. Does not create significant additional cost to DoD or the Air National Guard.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 7, Ethics**_

_**Section 7-16 Support of Non-Federal Entities**_

_**Page 6**_

**Logistical Support of Military Association Events**

National Military Associations are entitled to additional military support and such support must comply with DoDI

5410.19, Enclosure 10, _DoD Assistance to Annual Conferences of NMAs_. Additionally, pursuant to JER 3-211, support for military associations may also be provided in accordance with the factors set forth in the above " _Logistical Support and Charitable Fundraising_ " section.

**Charitable Fundraising for Military Associations**

Within very specific parameters, logistical support for military association charitable fundraising events may be provided

out of military resources. The requirements governing logistical support for this type of activity are addressed in " _Logistical Support and Charitable Fundraising_ " above.

**INDIVIDUAL SUPPORT OF NON-FEDERAL ENTITIES**

**Membership**

Military members, like anyone else, may participate in non-federal activities in their personal capacities provided they act

"exclusively outside the scope of their official positions." JER 3-300. Except for references to official position in certain activities involving teaching, speaking, and writing, DoD employees may not use, or allow the use of, their official title,

position or organization in connection with their participation, as this tends to suggest official endorsement or preferen-

tial treatment by the DoD.

**Attendance and Participation at NFE Association Events**

Commanders may permit excused absences for reasonable periods of time for employees to attend a non-federal entity

association conference or meeting at Air National Guard expense if the employee has official duties at the event or there

is a legitimate federal government purpose, beyond merely maintaining membership or professional credentials.

Agency designees may also permit excused absences for a reasonable period of time for their DoD employees to voluntar-

ily participate in the activities of non-profit professional associations and learned associations. Further, the employee

may also use government equipment or administrative support to prepare papers to be presented at such association

events or to be published in journals when: (1) the participation or paper is related to the DoD employee's position or to

the DoD employee's official position or to DoD functions, management or mission; (2) the agency can derive some bene-

fit from the participation or preparation, such as expansion of professional expertise by DoD employees or improved pub-

lic confidence derived from the professional recognition of the DoD employee's competence; and (3) the participation or

preparation of the paper does not interfere with the performance of official duties.

**DoD Liaison to an NFE Association**

CNGB, TAG or a designee can appoint a "National Guard liaison" to a non-federal entity in writing after determining

there is a significant and continuing DoD interest served by such representation. Liaisons must make clear their opinions

do not bind DoD or the Air National Guard, and they represent DoD interests and serve in an advisory capacity only.

They serve as a liaison in their official capacity, and may not be involved in management or control of a non-federal entity association.

**Fundraising**

A DoD employee may undertake "[p]urely personal, unofficial volunteer efforts" in support of fundraising activities out-

side the federal government workplace. JER 3-300a(2). Employees must be careful not to do anything that suggests DoD

_**Air National Guard Commander's Legal Deskbook**_

274

_**Chapter 7, Ethics**_

_**Section 7-16 Support of Non-Federal Entities**_

_**Page 7**_

endorsement of their activities. Although the general rule is personal fundraising should take place away from the work-

place, certain limited fundraising activities may be conducted at designated areas on the military installation, with the

advance approval of the commander. _See_ JER 3-300, DoDI 1344.07 and AFI 36-3101. Even when on-base fundraising oc-

curs, there can be no official endorsement of the events unless the organization is listed in JER 3-210. Remember, also, 5

C.F.R. § 2635.808 sets out the parameters for fundraising for federal employees.

**Use of Government Resources**

The basic rule is that government resources are to be used for official government purposes. 5 C.F.R. § 2635.704(a).

Therefore, government employees must be careful to avoid using federal resources in conjunction with their personal par-

ticipation in non-federal entities. JER 3-303b states that because of the potential for significant cost to the federal government, and the potential for abuse, DoD personnel may not be used to support the unofficial activities of another DoD

employee who is supporting a non-federal entity; nor for any other non-federal purpose, except as related to excused ab-

sences pursuant to JER 3-300(b) (discussed above), and logistical support pursuant to JER 3-211, also discussed above.

However, under JER 3-303 and 2-301, if the appropriate level supervisor determines that a 5-part test is met, employees

may make limited personal use of other types of government resources, such as typewriters, copiers, libraries, etc. The 5-

## part test is as follows:

1. The use does not adversely affect the duties of the employee or the organization;

2. The use is of reasonable duration and made only during the DoD employee's personal time (after duty hours

or lunch time);

3. The use involves a legitimate public interest;

4. The use would not reflect adversely upon the federal government; and

5. The use creates no significant cost to DoD. Note the use of telephones, facsimile machines, e-mail, and the

internet is further and more specifically addressed under JER 2-301.

For additional guidance on questions related to interactions with various non-federal entity associations, see NGB Memo-

randum, Support for Military Associations issued by General Frank J. Grass, Chief, NGB, dated December 3, 2015, and

JER, Chapter 3.

_**KWIK NOTE: Resolving issues involving government support to non-federal entities requires careful analysis and painstak-**_

_**ing attention to detail. When cooperative efforts can legitimately be supported, the results benefit both the DoD and the com-**_

_**munity at large.**_

**RELATED TOPICS:**

**SECTION**

Fundraising

7-2

Ethics

7-3

Gifts

7-6

Off-Duty Employment

7-9

Conflicts Of Interest

7-15

_**Air National Guard Commander's Legal Deskbook**_

275

**Chapter 8, Criminal Matters**

**Table of Contents**

**Section**

8 - 1 Table of Contents

8 - 2 Military Justice Jurisdiction - ANG Members in Title 10 Status

8 - 3 Civic Organizations

8 - 4 Evidence - Differing Standards and Burdens of Proof

8 - 5 Evidence - Chain of Custody

8 - 6 Arrest By Civilian Authorities

8 - 7 Arrests Authorized by the ANG

8 - 8 Pretrial Confinement or Restraint

8 - 9 Advising Suspects of Their Rights

8 - 10 Confessions

8 - 11 Polygraphs (Lie Detectors) - Use in the Military

8 - 12 Criminal Investigations, Prosecutions and Reporting - DoD and DoJ

8 - 13 OSI - Air Force

8 - 14 OSI and SF Reports

8 - 15 Courts-Martial

8 - 16 Inspections and Searches

8 - 17 Driving While Intoxicated and Others Offenses Involving Intoxication

8 - 18 Deadly Force

8 - 19 Theft and Vandalism Claims

8 - 20 Complaint of Wrongs

8 - 21 Model State Code of Military Justice

8 - 22 Sexual Assault Disposition Authority

8 - 23 State Mandatory Child Abuse Reporting and National Guard Chaplain Confidentiality

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 8, Criminal Matters**_

_**Section 8-2 Military Justice Jurisdiction - ANG Members in Title 10 Status**_

_**Page 1**_

**Military Justice Jurisdiction -- ANG Members in Title 10 Status**

**Updated by Captain Christopher Kannady, October 2013**

**AUTHORITY:** 10 U.S.C. 802-803; AFI 51-604, _Appointment to and Assumption of Command_ (4 Apr 06). 

## INTRODUCTION

Any member of the National Guard ordered to active duty under Title 10 U.S.C., is subject to disciplinary action under

the Uniform Code of Military Justice (UCMJ), regardless of the section of Title 10 the member is serving under and re-

gardless if the Title 10 service is for Annual Training, Inactive Duty Training, EAD, an OCONUS deployment or mobiliza-

tion. During Operation Iraqi Freedom and Operation Enduring Freedom, members of the National Guard were on active

duty under the authority of 10 U.S.C.12301. All these individuals were subject to the UCMJ for crimes committed while

in Title 10 status.

A member of the National Guard may be retained on active duty after the termination date of the orders for action under

the UCMJ. If released from active duty, the member may be ordered back to active duty for disposition of the offense, and

must be ordered to active duty by the appropriate authority before military justice jurisdiction may be exercised over that

member.

**PRE-DEPLOYMENT**

As for pre-deployment status, members of the National Guard in an alert status but who have not been placed on active

duty remain subject to the military code of the state in which National Guard membership is held. While in CONUS on

active duty preparing for a deployment, Guard members come under the jurisdiction of either the deployment station

commander or the parent support area commander for UCMJ purposes, as determined on a case-by-case basis. Depend-

ing on the military code of the state, members of the National Guard are also subject to the state code anywhere and any-

time, resulting in concurrent jurisdiction.

Reserve component commanders of the Air Force may not convene courts-martial unless they are properly designated or

authorized pursuant to AFI 51-604. A member of the National Guard on Title 10 active duty in CONUS are subject to

the UCMJ in the same manner as active component members of the unit the Guard member is serving with.

**POST-DEPLOYMENT**

Once the member deploys, the active duty component will conduct military justice functions in the deployment area. Dis-

ciplinary cases will not be removed to the continental United States, except as circumstances warrant.

Remember, an officer serving under Title 32 U.S.C. may not discipline a member under the UCMJ, unless provide for un-

der the respective state code, regardless of whether the member is serving under Title 32 or Title 10. Likewise, an officer

serving under Title 10 may not discipline a member in Title 32 status.

**BASIS OF UCMJ JURISDICTION**

The UCMJ was extended to assume jurisdiction over members of the National Guard while in federal service (Title 10).

While these changes only affect ANG members in Title 10 status, they are set forth here to explain the procedures if mili-

tary justice jurisdiction is exercised over the ANG member by an active duty component.

Article 2 (a) (3) of the UCMJ (10 U.S.C. 802) extends jurisdiction to members of a reserve component while on inactive

duty training, but in the case of members of the Air National Guard, only when in federal (Title 10) service, unless pro-

_**Air National Guard Commander's Legal Deskbook**_

277

_**Chapter 8, Criminal Matters**_

_**Section 8-2 Military Justice Jurisdiction - ANG Members in Title 10 Status**_

_**Page 2**_

vided for in the respective state code. National Guard members may be involuntarily recalled to active duty IAW AFI 51-

201 for prosecution of offenses committed while on Title 10 status.

The offense for which a National Guard member is recalled to active duty must have been committed while the member

was either on active service or on inactive duty training in federal service. The member may be ordered to active duty

only by a person empowered to convene general courts-martial in a regular component of the armed forces. The amend-

ment further provides that Air Force reservists and National Guard personnel ordered to active duty under its provisions

may not be sentenced to confinement or be required to serve a punishment comprising any restriction on liberty during a

period other than a period of inactive duty training or active duty, unless the order to active duty was approved by the

Secretary of the Air Force.

Finally, Article 3 of the UCMJ (10 U.S.C. 803) states that a National Guard member who is subject to the UCMJ is not

relieved from amenability to UCMJ jurisdiction for offenses committed during a period of active duty or inactive duty

training by virtue of the termination of such period of active duty or inactive duty training while in Title 10 status.

Commanders are urged to consult with the staff judge advocate for further questions related to this topic.

_**KWIK-NOTE: The key to UCMJ jurisdiction is status. The ANG member MUST be in Title 10 status. There is NO UCMJ**_

_**jurisdiction over ANG members in Title 32 status.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Active Duty - Air National Guard Members

11-2

Active State Duty

11-3

Courts-Martial

8-15

Enforceability of Orders by Air Force Officers to ANG Personnel Not in Federal Service

11-5

Mobilization of the Air National Guard (Federal and State)

20-2

Nonjudicial Punishment

24-11

Pre-Mobilization Legal Counseling

20-4

Relationship with Other Military Components

11-6

Status of National Guard Members

11-7

Training

26-2

Training Outside the United States

26-3

_**Air National Guard Commander's Legal Deskbook**_

278

_**Chapter 8, Criminal Matters**_

_**Section 8-3 Federal Magistrate Program**_

_**Page 1**_

**Federal Magistrate Program**

**Major George Asinc, July 2001**

**Updated by Major Christopher Kannady, June 2014**

**AUTHORITY:** AFI 51-905, _Use of Magistrate Judges for Trial of Misdemeanors Committed by Civilians_ (1 Jun 98). 

## INTRODUCTION

ANG members are subject to federal prosecution under the Federal Magistrate Judge program (referred to as "Magistrate

Court") for certain criminal offenses committed on federal military installations.

The Magistrate Court program is used on military installations which have federal jurisdiction to handle the disposition

of certain minor federal criminal offenses committed by civilians over whom the installation commander has no military

jurisdiction, when, in the installation commander's judgment, administrative sanctions which may be imposed against

the civilian to address the misconduct are inadequate or inappropriate.

**WHO ARE FEDERAL MAGISTRATES AND WHAT DO THEY DO?**

The United States Magistrate Judge is appointed by the United States District Court for a term of years to assist with dis-

position of the criminal and civil caseload, including the trial of minor offenses. "Minor" means misdemeanor offenses

for which the authorized penalty does not exceed one year's imprisonment. U.S. Magistrate Judges can try federal civilian

criminal misdemeanor or traffic offenses, and may also try juvenile offenders.

**WHO IS SUBJECT TO THE FEDERAL MAGISTRATE JUDGE'S JURISDICTION?**

Installation commanders are responsible for maintaining order on the installation. They must respond to the misconduct

of civilians as well as military members. It is imperative that commanders be equipped with alternative response options

in order to effectively deal with and deter civilian misconduct. The term "civilian" is quite broad. It includes dependents

of military personnel, civilian employees, retired military personnel and their dependents, and other civilian visitors on-

base. It also includes Air National Guard members in Title 32 status, in a military or civilian status, in or out of uniform, who are on (active duty) military installations that have federal jurisdiction.

On installations which have federal jurisdiction, an effective option the commander may use for certain federal offenses

is the United States Magistrate Judge. The Magistrate Court program applies to civilians over whom installation com-

manders have limited options. Active duty commanders have the full range of administrative and criminal sanctions un-

der the UCMJ when dealing with misconduct by a Title 10 military member. But active duty installation commanders

may only administratively sanction their civilian employees, and may only suspend or revoke certain installation privi-

leges of any civilian who commits misconduct on the installation. However, commanders themselves cannot punish civil-

ians, unlike military members, for criminal acts committed on the installation. That can only be done by civilian authori-

ties. When there is federal jurisdiction, that authority is the United States Magistrate Judge.

**HOW DO FEDERAL MAGISTRATES AFFECT THE AIR NATIONAL GUARD?**

If your unit is co-located on an active duty installation with federal jurisdiction, or your members find themselves on

such installation, either during a TDY tour, deployment, or even in civilian status shopping at that installation's commis-

sary or BX, any minor offense they commit on that base that is not strictly military (such as insubordination to a supe-

rior officer, AWOL, etc.), will, upon their consent, be prosecuted in the Magistrate Court at that installation or in the

nearest off base Magistrate Court. A classic example is being TDY and speeding on the installation or driving under the

influence of alcohol.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 8, Criminal Matters**_

_**Section 8-3 Federal Magistrate Program**_

_**Page 2**_

**PREREQUISITES TO FEDERAL MAGISTRATE JUDGE ACTION**

**Installation Commander's Referral**

The first thing that happens before the Federal Magistrate hears the case is that the installation commander refers it to

the Magistrate Judge. (While the U.S. Attorney may choose to prosecute crimes occurring on the installation without the

commander's referral, this is unusual.) On installations which have federal jurisdiction, AFI 51-905 gives installation

commanders authority to refer offenses to the Magistrate Judge for trial when administrative action is inadequate or inap-

propriate. Administrative action could include denial of shopping privileges (for shoplifting), loss of driving privileges

(for traffic offenses), or barring one from entering the base (for serious or continued offenses). The administrative meas-

ures available will vary substantially depending on the particular status of the "civilian" offender, _i.e._ , civilian employee, dependent, guest, etc. Commanders may do this either on a case-by-case basis, or if safety, discipline or other considerations warrant, commanders may make a blanket determination that administrative disposition of certain offenses commit-

ted by civilians on the installation is not appropriate and that all such offenses should be referred to the Magistrate Judge for trial.

**Jurisdiction of Federal Court**

Even if the installation commander refers a case to Magistrate Court, that court must have jurisdiction to hear it.

Criminal actions committed by a civilian on an installation which has federal jurisdiction may be addressed in federal

court, including Magistrate Court. If there is no jurisdiction, the civilian will be prosecuted in a state court. There are

two ways a federal court can have jurisdiction over offenses committed on a military installation: by the kind of offense

and by the ownership of the land.

**Kind of Offense**

Violation of any federal statute which does not rely on territorial jurisdiction ( _i.e._ , which government - federal or state -

owns the land) may result in prosecution in federal court regardless of the status of the base. For example, federal stat-

utes supersede state law and make counterfeiting, espionage, sabotage and bribery of federal officers' federal crimes. If

such an offense is committed on a military installation, including an Air National Guard base, even if only the state owns

the land, the offense may be tried in federal court. Where jurisdiction is based on the kind of offense, it is unlikely that the offense will be tried in Magistrate Court, unless it is "minor."

Ownership of the Land

_Exclusive Jurisdiction_

If the installation is owned by the federal government, or the state where the installation is located has ceded exclusive

jurisdiction to the federal government, the state may not prosecute for offenses committed on the installation. Federal

courts provide the only remedy. Under exclusive federal jurisdiction, federal courts will prosecute crimes which violate a

specific federal statute or only violate a state statute.

Unlike state criminal statutes, the federal statutes do not provide for every kind of crime; serious, minor or traffic. For

example, there is no federal vehicle and traffic law. But there is a federal statute called the Assimilative Crimes Act, 18

U.S.C. 13, which makes violating a state statute a federal offense if the act was committed on federal land. It is by virtue of the Assimilative Crimes Act that civilians on active duty installations with exclusive federal jurisdiction can be tried in Federal Magistrate Court for committing a traffic offense on the installation. The Magistrate Judge uses the state law to

try the offense, and the authority (or what gives the jurisdiction) to do so is the Assimilative Crimes Act.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 8, Criminal Matters**_

_**Section 8-3 Federal Magistrate Program**_

_**Page 3**_

_Concurrent Jurisdiction_

If both the federal and state government have jurisdiction on the installation, either may prosecute offenses committed

on the installation unless state law prohibits a state prosecution after there has been a federal prosecution. Usually, base commanders of installations with concurrent jurisdiction have developed a Memorandum of Understanding with state or

local prosecutors covering which offenses will be tried in which court.

_Proprietary Jurisdiction_

If the installation has only proprietary jurisdiction, federal statutes which rely on territorial jurisdiction resting with the federal government may not be enforced in federal court. All of these prosecutions must occur in state court. Violations

of federal statutes that do not rely on territorial jurisdiction are prosecuted in federal court.

**Individual's Consent**

Assuming the installation commander refers a case to Magistrate Court, and that court has jurisdiction to hear it, the in-

dividual defendant must consent before being prosecuted in Magistrate Court. It is rare that individuals do not consent.

If the individual refuses to consent, jurisdiction over the case properly rests with the U.S. District Court, not the state

court. If the individual consents to be tried in Magistrate Court, any conviction may be appealed to the U.S. District

Court.

In an exclusive federal jurisdiction case where the offense is not "minor" ( _e.g._ , the offense is a felony), the individual has no "consent" option, and will be prosecuted before a United States District Judge and not before a U.S. Magistrate Judge.

**CONCLUSION**

Even though Title 32 ANG personnel are not subject to prosecution under the UCMJ for offenses committed on active

duty installations, they may be, whether in military (Title 32) or civilian status, subject to being prosecuted before a

United States Magistrate Judge for the federal or state offenses committed on military installations.

_**KWIK-NOTE: Consider including this topic in your Preventive Law Program.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Arrest by Civilian Authorities

8-6

Arrests Authorized by the ANG

8-7

Civilian Misconduct on Base

3-7

Driving While Intoxicated and Other Offenses Involving Intoxication

8-17

Installations Jointly or Solely Occupied by the ANG

25-12

Jurisdiction

2-5

Motor Vehicle Rules – Military Bases

21-6

Relationship with Other Military Components

11-6

Status of National Guard Members

11-7

TDY and Travel

27-9

_**Air National Guard Commander's Legal Deskbook**_

281

_**Chapter 8, Criminal Matters**_

_**Section 8-4 Evidence - Differing Standards and Burdens of Proof**_

_**Page 1**_

**Evidence -- Differing Standards and Burdens of Proof**

**Major George Asinc, July 2001**

**Updated by Major Christopher Kannady, June 2014**

**AUTHORITY:** Applicable state and federal law; Military Rules of Evidence. 

## INTRODUCTION

Every potential adverse action commanders take, whether punitive or administrative, has a standard of evidence or bur-

den of proof which must be met before the action may be taken. Depending on the kind of action taken, the standards of

evidence and burden of proof may be different. This topic has been included in the _Deskbook_ to acquaint commanders

with the terms used to permit or sustain the various kinds of adverse actions they may take.

The term "burden of proof" can mean one of two things. One, it is the amount of evidence that is necessary to achieve a

goal ( _i.e._ , discharge, conviction, or search warrant). Two, it defines which party has to go forward with this amount of evidence.

Before taking a particular action, your first question should always be: "Do I have the required amount of evidence to

take the action?"

When we talk of the burden of proof in a court-martial, we use the term "beyond a reasonable doubt." In administrative

board proceedings, depending on the type, we say commanders have the burden of proof by "clear and convincing evi-

dence" or by a preponderance of the evidence." We use the term "reasonable suspicion" when considering command-

directed urinalysis tests.

**STANDARDS OF EVIDENCE AND BURDENS OF PROOF**

**Reasonable Suspicion/Articulable Suspicion**

Reasonable suspicion is defined as having a rational basis to feel that a person may have done something wrong. This

standard of evidence is less than probable cause, and although it may be based on slight evidence, it defines the mini-

mum amount of evidence which commanders must have to take action against a military member. Under the applicable

military regulations, a command-directed urinalysis test may be ordered only if the commander has a "reasonable suspi-

cion" that the individual may have used illegal drugs, _e.g._ , if a member displays unusual or aberrant behavior under the circumstances.

**Probable Cause**

Probable cause defines a reasonable ground for belief in the existence of facts warranting the action taken. It is an appar-

ent state of facts found to exist upon reasonable inquiry (that is, such inquiry as the given case renders convenient and

proper) which would induce a reasonably intelligent and prudent person to believe in a criminal case that the accused

person has committed a crime charged, or in a civil case that a cause of action exists. Probable cause is more evidence

than reasonable suspicion and is the standard that must be met to support a commander's authorization to conduct a

search and seizure or to support an apprehension.

**Preponderance of the Evidence**

A preponderance of evidence is the greater weight of evidence. While "preponderance of the evidence" cannot be stated

in terms of a mathematical formula, since a "preponderance" means the scale tips ever so slightly in favor of one party's

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_**Chapter 8, Criminal Matters**_

_**Section 8-4 Evidence - Differing Standards and Burdens of Proof**_

_**Page 2**_

evidence, it may loosely be analogized to a minimum of 51% to 49% in favor of one party's evidence. Preponderance of

the evidence is determined by the greater weight of all evidence, which does not necessarily mean the greater number of

witnesses for a particular side. The witnesses' opportunity for knowledge, information possessed, and manner of testify-

ing determines the weight of their testimony. This is the amount of evidence or standard of evidence that must be met

before an individual can be administratively discharged.

**Clear and Convincing Evidence**

This is more evidence than a "preponderance," but less than "beyond a reasonable doubt." It is the degree of proof that

will produce a firm belief or conviction and that is sufficient to convince ordinary prudent-minded people who are unbi-

ased and unprejudiced. The proof need not be conclusive.

This is the standard of evidence that the prosecution must meet if a defendant contests the validity of the "consent" they

gave to the police when the police conduct a "consent search" ( _e.g.,_ a consent urinalysis test).

**Beyond a Reasonable Doubt**

This is the highest burden of proof and is usually reserved for criminal trials and court-martial. An accused person is entitled to an acquittal if, in the minds of the jury, guilt has not been proven beyond a reasonable doubt. A reasonable doubt

is that state of the minds of the jurors in which they cannot say they feel an abiding conviction as to the truth of the

charge. It is a doubt to which a juror can ascribe a good reason. While this burden of proof cannot be equated with a

mathematical formula, it loosely can be analogized to 99% to 1% in favor of the prosecution's or government's evidence

in favor of the guilt of the accused.

**PRESENTATION OF EVIDENCE**

A commander should not confuse the standards of evidence and burdens of proof with the actual evidence the prosecutor

(or recorder in an administrative proceeding) uses to PROVE the government's case or "meet" its burden of proof. Al-

though there are many types of evidence, such as documentary, demonstrative and testimonial, all types of evidence can

be categorized into DIRECT and CIRCUMSTANTIAL evidence.

**Direct Evidence**

Direct evidence is that means of proof which tends to show the existence of a fact in question, without the intervention

of the proof of any other fact; and is distinguished from circumstantial evidence, which is often called "indirect" evi-

dence. Direct evidence means that witnesses can testify they know a fact because of the operation of any of their five

senses: they saw it, they heard it, they smelled it, they tasted it, or they felt or touched it. Evidence based on the five

senses is what is meant by the term "direct evidence" or "direct knowledge." While direct evidence can be strong evi-

dence, it inherently is subject to human fallibilities: for example, a person may not have been in a good position to see or hear something; or human emotions such as fear or anger may have affected perceptions.

**Circumstantial Evidence**

Circumstantial evidence includes all evidence of an indirect nature. It an also be considered as inferences drawn from

facts proven. It also means the existence of principal facts that are only inferred from circumstances. It consists of reasoning from facts which are known or proven to establish another fact.

Circumstantial evidence involves reasoning to a conclusion from other known facts. For example, it is winter, you live in

the northeast part of the United States and as you look outside just before retiring for the evening, it is clear and dry outside. You sleep soundly through the night and upon awakening the next morning, and before speaking with anyone,

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 8, Criminal Matters**_

_**Section 8-4 Evidence - Differing Standards and Burdens of Proof**_

_**Page 3**_

reading the newspaper, watching T.V. or listening to the radio, you look outside your bedroom window. You see no pre-

cipitation, but see a blanket of white covering the roads, the ground, the buildings and the trees. What happened during

the night? It snowed, of course. You did not see it happen, but you believe that it snowed and do not have a reasonable

doubt about this fact. Your knowing that it snowed was based on the facts existing when you went to bed the night be-

fore, and the facts existing upon your awakening. You put "2 and 2" together. This is circumstantial evidence.

Another example is the use in a trial of a scientific test such as a breathalyzer, which measures the alcoholic content in a person's body by chemical analysis of the breath. As a juror in a DUI or DWI case, you may consider the results of the

breathalyzer test in the case against a defendant. Although you did not see or otherwise have direct evidence of the per-

son's consumption of alcoholic beverages, if the judge permits the test results to be provided to you in court, you may

use this test result as circumstantial evidence that the person had a certain percentage of alcohol in the body at the time

of the offense.

Circumstantial evidence can often be more reliable than direct evidence, because of the potential human weaknesses as-

sociated with direct evidence. The expression "a person can't be convicted solely on circumstantial evidence" is not neces-

sarily true.

**CONCLUSION**

It is important for commanders contemplating adverse action against one of their members to discuss the applicable stan-

dards of evidence and burdens of proof with their Staff Judge Advocate to ensure a successful result.

_**KWIK-NOTE: Supplement this topic with applicable state law.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Administrative Demotion of Airmen

24-2

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Arrests Authorized by the ANG

8-7

Boards – Investigative

16-4

Command-Directed Urinalysis

10-9

Confessions

8-10

Consent Urinalysis Tests

10-8

Courts-Martial

8-15

Inspections and Searches

8-16

Investigation by Commander of Suspected Minor Offenses

16-10

Investigations and Inquiries

16-11

Line of Duty Determinations

1-19

Nonjudicial Punishment

24-11

_**Air National Guard Commander's Legal Deskbook**_

284

_**Chapter 8, Criminal Matters**_

_**Section 8-5 Chain of Custody**_

_**Page 1**_

**Chain of Custody**

**Updated by Captain Christopher Kannady, October 2013**

**AUTHORITY:** Military Rule of Evidence 311, 901(a), 1003 and 1004.

**DEFINITION**

The concept of "chain of custody" is integral to the safeguarding of evidence. Any evidence introduced at a proceeding

must not be altered from when it is found until it is used in a proceeding. To show nothing altered or damaged the evi-

dence, steps used to store and safeguard an item must be established. From the finding of evidence through its use at a

proceeding, all persons who had possession, custody or control of that evidence may be required to testify about their

involvement with the evidence and what they did to ensure the evidence is in the same condition at the proceeding as it

was when it was found or obtained. This is what is known as the "chain of custody" of a piece of evidence.

The safest method of ensuring the chain of custody is not broken, thereby possibly invalidating the use of the evidence,

is to use a form that will become the written record of all persons who have had possession, custody or control of an

item from the time it is found until it is used.

**IDENTIFICATION OF EVIDENCE**

Evidence must first be obtained through a lawful seizure or by consent. Drugs, urine samples, blood samples, weapons,

clothing and other items related to an alleged offense or violation of a regulation are PHYSICAL evidence of that offense

or violation. Commanders must preserve and safeguard any physical evidence in their custody. Physical evidence should

be handled by as few persons as possible, since all who touch it may be required to appear at the proceeding and testify

about what happened or did not happen to the evidence while it was in their possession, custody or control. Physical evi-

dence must be carefully marked to ensure later identification and everyone who handles the evidence should record that

fact on a chain of custody document.

The first person who assumes custody of physical evidence must mark it immediately to ensure it will be identifiable at

the proceeding in which it is sought to be used. This person may place the mark on the item itself if it can be done easily

and without damaging the evidence. The mark usually includes the person's initials, the date and the time. On the chain

of custody record, the person should briefly describe the item, as well as the date and place of its discovery. If the evi-

dence itself cannot be marked, it should be tagged, or placed in a sealed, suitably marked container. This container must

be tamper-proof or sealed to demonstrate an absence of tampering. The tag or label on the container should be marked

with the person's initials, the date, the time, and a description of the evidence. Physical evidence should be turned over

to professional investigators such as security police, soon after it is found.

**PRESERVATION OF EVIDENCE**

Perishable and unstable items of evidence require special attention. They must be photographed or otherwise preserved,

with the method of preservation depending on the type of evidence. Professional assistance is necessary, for example, to

preserve a blood sample, a fingerprint or a tire track in the dirt. Security forces personnel or local law enforcement offi-

cials can assist in doing this. Documentary evidence is preserved by ensuring the original is not altered, defaced or dam-

aged. Photocopies of original documents are usually permissible substitutes for the originals at the proceeding in which

they are sought to be introduced, but only if the original is available for comparison, or its unavailability is satisfactorily explained. The reason the original is required for comparison is that reported cases show some people can and have performed "magic" with photocopy machines. Safeguard original documents.

_**KWIK-NOTE: Chain of custody is an essential part of the base urinalysis program. Consult the staff judge advocate for all**_

_**chain of custody matters.**_

_**Air National Guard Commander's Legal Deskbook**_

285

_**Chapter 8, Criminal Matters**_

_**Section 8-6 Arrest by Civilian Authorities**_

_**Page 1**_

**Arrest by Civilian Authorities**

**Updated by Captain Christopher Kannady, October 2013**

**AUTHORITY:** AFI 36-3209, _Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members_ (15 Feb 13); applicable state law, including Codes of Military Justice and nonjudicial punishment regulations. 

## INTRODUCTION

As commander, you may be notified or learn that one of the members of your command has been arrested for, accused of,

or charged by civilian authorities with having committed a civilian criminal offense. The member may or may not be held

by the civilian authorities for such offense. The member, at the time of the alleged commission of the offense, may have

been on or off base, on or off duty, or in or not in the performance of military duty. Most often, though, the member will

have been off base and not on duty. The member may be an AGR, technician, or traditional Guard member. The alleged

offense may be anything from driving while intoxicated, shoplifting, or simple assault to more serious offenses.

When this information comes to your attention, by whatever means and from whatever source, the issue becomes what

MUST, CAN or SHOULD you do, as the commander of that member.

**ACTION SEQUENCE**

These actions apply to both enlisted members and officers unless otherwise specified.

**CONTACT CIVILIAN AUTHORITIES TO GATHER INFORMATION**

Contact the civilian authorities and inform them the person is a member of the Air National Guard. This will enable the

civil authorities to understand why you are calling them about this person. Obtain a copy of the police report if you can.

Ask the civilian authorities what actual charges have been or will be brought against the member, the circumstances of

the case, and the maximum punishment imposable. This information will help you determine whether the civilian of-

fense is a "serious offense" under the "Misconduct" sections of AFI 36-3209. Commission of such a "serious offense" is

grounds for administrative discharge.

**ACTION IF THE MEMBER IS DETAINED**

The civilian authorities may ask your input regarding bond/bail or whether you would take responsibility for the mem-

ber if he or she is released from custody pending trial. The ANG cannot post bond. The only thing you are permitted to

do in your official capacity is to make a statement about the member's character or prior record of reliability. However,

you are not required to make such a statement. Do not assume responsibility for the member in your official capacity. If

you wish to personally take such a responsibility, that is your choice; however, you should in no way involve the National

Guard or the Air Force. Unless you are personally willing to accept the potential adverse consequences of the member's

failure to appear, you should not post bond or guarantee any action by the charged member.

NOTE: Should civilian authorities holding the member be foreign authorities, notify your judge advocate immediately.

Applicable Status of Forces Agreement (SOFA) or bilateral treaties must be consulted. In addition, certain instructions

such as AFI 51-703, AFI 51-705 and AFJI 51-706, set forth action requirements. See the topics in this _Deskbook_ entitled

" _INTERNATIONAL OPERATIONS LAW - FOREIGN CRIMINAL JURISDICTION_ " and " _INTERNATIONAL OPERATIONS LAW -_

_STATUS OF FORCES AGREEMENT (SOFA)_ " for further guidance.

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_**Chapter 8, Criminal Matters**_

_**Section 8-6 Arrest by Civilian Authorities**_

_**Page 2**_

**QUESTIONING THE MEMBER**

You have no authority to compel members, because of their military status, to tell you about their involvement in the ci-

vilian crime, and you cannot take adverse action against them for their failure or refusal to do so. Read the topics in this _Deskbook_ entitled " _ADVISING SUSPECTS OF THEIR RIGHTS_ " and " _EMPLOYEE INTERROGATION_ " if you intend to question them.

**ATTORNEY REPRESENTATION**

A judge advocate cannot be appointed to represent the member in a civilian criminal matter. The civilian authorities will

tell the member that the member may hire a civilian attorney at the member's own expense, or if unable to afford one,

the member may request that the court appoint a civilian attorney to represent the member free of charge.

**MILITARY ACTION PENDING OUTCOME OF CIVILIAN CHARGES**

You may wait until the civilian criminal offense has been adjudicated before deciding whether to take any adverse mili-

tary action against the member; however, if an excessive delay in the adjudication of the charges by the civilian authori-

ties is likely, you may take military action administratively. If the member is exonerated from all civilian charges, including any lesser charge(s) derived from the original charge(s), you may not be able to take any formal adverse military ac-

tion, and you may have to "undo" any adverse military action taken while the civilian case was pending. This will depend

on whether you have evidence, independent of any conviction, sufficient to support a basis for your adverse action.

While the civilian case is pending, you properly should consider whether to withhold promotion action, OPR comment

or reenlistment options. These are justifiable exercises of your discretion while the civilian criminal case is pending, even if the member is later exonerated. Coordinate all these actions with your FSS Chief and staff judge advocate.

**OBTAIN CERTIFIED COPY OF DISPOSITION**

Before taking any military action based upon a civilian court conviction of the member, or officially deciding not to take

action against the member, obtain a "certified" copy of the conviction or other disposition of the charge from the court

(even if the member is found "not guilty" or the case is dismissed). You need this document as "official" evidence of the

member's commission of, or exoneration from, the charges for purposes of discharge action, other adverse action, or no

action taken against the member. The certified copy of disposition is usually available at a nominal or no cost (to the

ANG) from the court after the case is finally disposed of, i.e., after the member has been sentenced, if convicted, or after the case has been dismissed or otherwise finally adjudicated under state law.

In addition to obtaining the certified copy of disposition, often civilian prosecutors or court personnel may, upon your

request, provide you with investigative reports or statements, and which while not essential for you to take administra-

tive action, may give you some useful background information surrounding the commission of the offense. If the civilian

criminal case has been disposed of favorably to the accused, state law may provide that the records of the case are to be

"sealed" and unavailable to anyone, including the ANG.

**MILITARY ACTION AFTER DISPOSITION OF CIVILIAN CASE**

Once you have obtained the certified copy of the final disposition of the case, immediately contact your staff judge advo-

cate to discuss appropriate administrative and/or disciplinary action. If you do not act promptly, the Air National Guard

may be bound by your inaction and may be unable to discharge the member. Understand, we are not advising you to act

without full consideration of the appropriateness of your action, or without obtaining necessary documents. Time, how-

ever, can be of the utmost importance.

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_**Chapter 8, Criminal Matters**_

_**Section 8-6 Arrest by Civilian Authorities**_

_**Page 3**_

**ADVERSE MILITARY CONSEQUENCES DUE TO CONVICTION**

The member's absence due to having been sentenced to civilian confinement is not a bar to processing a discharge or

other appropriate action.

**Enlisted Members**

A member is subject to a discharge from the ANG under other than honorable conditions if the member is convicted (by

either a plea of guilty or a finding of guilty) of a civilian crime which either:

1. Could be punished by a bad conduct or dishonorable discharge if it were prosecuted under the UCMJ (here, the UCMJ

is used as the standard for discharge based on misconduct); or

2. Results in the civilian court sentencing the member to confinement of six months or more (without regard to suspen-

sion of the sentence or probation).

This applies to juvenile and adult proceedings. It also applies to actions tantamount to a finding of "guilty," as defined in AFI 36-3209, para 3.21.4.

**Officers**

If an officer is found guilty of any offense by civilian authorities and is sentenced to confinement in a federal or state penitentiary or correctional institution, regardless of whether or not the sentence is suspended, the officer may be involuntar-

ily administratively separated by discharge or by being dropped from the rolls of the Air Force and Air National Guard in

lieu of being discharged.

**ADVERSE MILITARY CONSEQUENCES NOT DEPENDENT ON CONVICTION**

Ask your SJA or security forces to obtain all the police reports and any other evidence available. If you find that the mem-

ber has been arrested/convicted previously, review the member's enlistment/re-enlistment forms to see if they include

these previous arrests/convictions. If they do not, you have an independent cause for discharge (fraudulent enlistment)

apart from the current civilian charges.

Any evidence you gather regarding the member's conduct may permit you to proceed with discharge action under AFI

36-3209, whether the member is successfully prosecuted by a civilian court. A discharge action is not a criminal proce-

dure. For example, a member could be caught dealing narcotics by civilian police but not be prosecuted or convicted. It

could be because of suppression of evidence at trial or in exchange for the member's cooperation with the police in gath-

ering evidence about other drug dealers. In those cases you may still proceed with an administrative discharge action

based on evidence of the member's misconduct, assuming you have sufficient evidence. If you initiate a discharge action

on the basis of the member's commission of a serious offense rather than on that of a civilian conviction, you won't be

bound by whether the civilian authorities convict the member.

**CONCLUSION**

This topic has been designed to advise you of your responsibilities and give you some suggestions on the kinds of things

you need to do when one of your members is arrested or becomes a defendant in a civilian criminal matter. Upon learn-

ing of such a situation, consult with your staff judge advocate before taking any action.

_**KWIK-NOTE: Civilian crimes committed by military members may form the basis of military administrative or disciplinary**_

_**action.**_ ****

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_**Chapter 8, Criminal Matters**_

_**Section 8-6 Arrest by Civilian Authorities**_

_**Page 4**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Absent Military Members

1-2

Civilian Warrants and Process – Service on Base

3-8

Criminal Investigations, Prosecutions and Reporting – DoD and DOJ

8-12

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Arrests Authorized by the ANG

8-7

Barring Reenlistment

24-6

Command-Directed Urinalysis

10-9

Confessions

8-10

Dropping ANG Officer from the Rolls Instead of Administrative Discharge

24-8

Foreign Criminal Jurisdiction

15-8

Status of Forces Agreement (SOFA)

15-14

Revocation of Security Clearance

24-13

Withdrawal of Authority to Bear Firearms

1-41

Investigations and Inquiries

16-11

_**Air National Guard Commander's Legal Deskbook**_

289

_**Chapter 8, Criminal Matters**_

_**Section 8-7 Arrests Authorized by ANG**_

_**Page 1**_

**Arrest Authorized by ANG**

**Updated by Captain Christopher Kannady, October 2013**

**AUTHORITY:** AFI 31-207, _Arming and Use of Force by Air Force Personnel_ (1 Sep 99); AFI 31-201, _Security Police Standards_ _and Procedures_ (4 Dec 01); AFI 31-101, _The Air Force Installation Security Program_ (1 Jun 00) (FOUO Instruction); AFMAN

31-201, Vol. 2, _Security Legal Considerations_ (25 Jan 02); and applicable state law.

**DETENTION**

Commanding officers of any ANG unit may, during the performance of official duty, detain or cause the detention of any

person - military or civilian - who commits a crime or trespasses upon any base or other military facility (if such person

interrupts or interferes with the discharge of military duties or threatens to do so). That person should be turned over to

the civilian authorities as soon as possible. Rarely does the ANG have authority to detain anyone off the base. Refer to

state law for additional authority to detain by an ANG unit.

**APPREHENSION**

Any officer, warrant officer, noncommissioned officer, or other person designated by proper authority to perform guard,

police, or criminal investigation duties may "apprehend" (the military equivalent of "arrest," which is a civilian term) a

violator if they have a reasonable belief an offense has been committed and the person apprehended committed the of-

fense. However, most apprehensions in the ANG are made by security forces personnel. Please refer to the Law Enforce-

ment Officers Safety Act of 2004 (18 U.S.C. 921 _et seq_ ) for further guidance.

**USE OF FORCE**

When making an apprehension, personnel must always consider the degree of force used. AFI 31-117, _Arming and Use of_

_Force by Air Force Personnel_ , and AFI 31-201, _Security Police Standards and Procedures_ , and AFMAN 31-201, Vol. 2, _Security Legal_ _Considerations_ , provide further guidance for security personnel.

Security police authority to arrest, apprehend or detain civilians is based on state law. Many states have civilian statutes authorizing only certain persons classified as "police officers" or "peace officers" under that state's law to make arrests or apprehensions. Those same laws also prescribe the permissible use of force.

If an ANG member makes an arrest or apprehension without proper authority or uses excessive force, the commander

and that member may be liable - sometimes personally - for damages.

**COORDINATION WITH KEY STAFF IS ESSENTIAL**

The circumstances under which civilians and military members that violate civilian laws are turned over to civilian

authorities, and particularly the policies regarding their restraint and confinement beforehand, depend on the jurisdic-

tion of the installation. Therefore, your staff Judge advocate (SJA) should be consulted on these matters. Develop Memo-

randa of Understanding with local law enforcement officials for these situations.

This is an area where your SJA and Chief of Security Forces must research the state law and the military regulations, and

educate the security police personnel on authorized apprehensions and the proper use of force.

_**KWIK-NOTE: Most of the time, ANG members will only DETAIN persons who violate the law on an ANG base and await**_

_**the arrival of civilian law enforcement officials who will affect the arrest. This is an area that needs to be supplemented by**_

_**state law.**_

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 8, Criminal Matters**_

_**Section 8-7 Arrests Authorized by ANG**_

_**Page 2**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Access to Military Installations – General Guidelines

3-2

Air Base Security Guards

3-3

Arrest by Civilian Authorities

8-6

Civilian Misconduct on Base

3-7

Deadly Force

8-18

Debarment

3-11

Installations Jointly or Solely Occupied by the ANG

25-12

Jurisdiction

2-5

Open Houses and Free Speech

3-13

Personal Liability of Federal and State Officials

18-9

_Posse Comitatus_

6-7

_**Air National Guard Commander's Legal Deskbook**_

291

_**Chapter 8, Criminal Matters**_

_**Section 8-8 Pretrial Confinement or Restraint**_

_**Page 1**_

**Pretrial Confinement or Restraint**

**Updated by Captain Christopher Kannady, October 2013**

**AUTHORITY:** Applicable state law.

**AUTHORITY TO CONFINE OR RESTRAIN**

For Air National Guard commanders, this area is governed by the state Code of Military Justice or civilian state law. If

there is no authority under the state code or law, ANG commanders cannot confine or restrain one of their members

pending a court-martial. There is specific authority in the UCMJ for certain active duty Air Force commanders to exercise

pretrial confinement or restraint of active duty service members, but the UCMJ does not apply to ANG members in Title

32 status, unless incorporated by reference under the state code or law.

**EFFECT OF ILLEGAL CONFINEMENT OR RESTRAINT**

If you wrongfully (without authority) confine or restrain one of your members, you may have "bought" yourself and the

government a civil suit for false or wrongful arrest, imprisonment or confinement, the damages for which you could be

personally liable.

**WHEN, IF EVER, MAY YOU DO IT?**

Pretrial confinement or restraint presupposes you have initiated or will initiate court-martial proceedings. As a practical

matter, courts-martial in the Air National Guard are not prevalent although authorized by many state Codes of Military

Justice. For that reason alone, using pretrial confinement or restraint in the ANG is extremely rare. Due to the nature of

service rendered by the traditional Guard member and the vagaries of each state's Military Justice Code, you may never

have the occasion to put one of your members in pretrial confinement or restraint. Remember, however, that restraint as

punishment resulting from a court-martial or administrative proceeding such as non-judicial punishment is "post-trial,"

not pretrial confinement or restraint, and, therefore, is likely more common under state codes of Military Justice.

**FACTORS TO CONSIDER**

Should a situation occur in which you feel pretrial confinement or restraint is necessary, consult your SJA immediately.

As a general rule, restraint prior to court-martial is appropriate in few cases. The factors you must consider include:

Whether the member is a threat to others;

Whether the member is a threat to self; and

Whether there is a risk the member will flee the jurisdiction.

Since most Guard members perform their military duty close to their hometown, it may be difficult to prove they would

leave a civilian job and their families over a problem at the unit. The biggest practical problem may be lack of appropriate facilities on the Guard base or in the civilian jail nearest the base to confine members prior to trial.

**INTERACTION WITH CIVILIAN AUTHORITIES**

If the situation is serious enough to warrant pretrial confinement or restraint, you should also be aware that state or fed-

eral authorities may also wish to prosecute the member for the alleged offense(s) if the member has also violated state or

federal civilian law. Although the National Guard, as a separate entity, may still be entitled **** to court-martial the member for the same offense, the issue of your pretrial confinement or restraint of your member may be moot.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 8, Criminal Matters**_

_**Section 8-8 Pretrial Confinement or Restraint**_

_**Page 2**_

_**KWIK-NOTE: Pre-trial confinement or restraint is rarely, if ever, used by ANG commanders over Guard members in Title 32**_

_**status.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Absent Military Members

1-2

Arrest by Civilian Authorities

8-6

Arrests Authorized by the ANG

8-7

Courts-Martial

8-15

OSI and SF Reports

8-14

Status of National Guard Members

11-7

_**Air National Guard Commander's Legal Deskbook**_

293

_**Chapter 8, Criminal Matters**_

_**Section 8-9 Advising Suspects of Their Rights**_

_**Page 1**_

**Advising Suspects of Their Rights**

**Updated by Captain Christopher Kannady, October 2013**

**AUTHORITY:** _Minnick v. Mississippi_ , 498 U.S. 146 (1990); _Arizona v. Roberson_ , 486 U.S. 675 (1988); _Miranda v. Arizona_ , 384 U.S. 436 (1966); United States Constitution, Amendments V and VI; Article 31, UCMJ; Manual for Courts-Martial

(MCM), Rule 305(e); AF Form 1168; applicable state and military law and regulations; collective bargaining agreement.

**WHEN, WHAT, AND WHOM TO ADVISE**

As a commander, first sergeant, or supervisor, you have the right and responsibility to counsel, admonish, reprimand,

"chew-out" and hold discussions with your subordinates. If you do all the talking, the individual's "rights" may not be-

come an issue. However, any time you or anyone conducting a formal or informal investigation, questions an individual

about suspected wrongdoing that MAY lead to disciplinary action (whether punitive or administrative), it is necessary to

provide the suspected employee with a "rights" advisement. In addition, if your session started out to be a counseling

session but your employee says or does something that leads you to believe the employee is suspected of an offense, stop

the conversation and immediately provide a proper "rights" advisement. You should normally tell every person they have

the right to have counsel present during the questioning. However, an attorney will only be appointed for military person-

nel.

If your subordinate was on Title 10 duty (federal service) when the alleged offense occurred or when you question the

member (even if you are not), you should provide the member with the Article 31, UCMJ warnings (see AF Form 1168)

if there is a chance of court-martial under the UCMJ or any other proceeding that could result in punitive or negative con-

sequences, including administrative separation. If the subordinate could also be punished under your state Military Code

of Justice or under state civilian criminal law, the member should also be given a state law rights advisement.

If your subordinate was on Title 32 duty when the alleged offense occurred or when you question the member, state law

must be consulted to determine what type of rights advisement is appropriate. Check your state military justice code. If

your state military law does not have a rights advisement or if your state law is similar to the Article 31 warnings, you

can use Attachment 1 to this topic by deleting the words "Article 31, UCMJ."

If your subordinate was a civilian employee at the time of the alleged offense or when you question the member, the em-

ployee must be given a rights advisement consistent with the Fifth Amendment to the United States Constitution. Al-

though the "Miranda" warnings normally only require a rights advisement in the event of "official interrogations" in "cus-

todial situations" it is better to err on the side of caution and provide the warnings. Attachment 2 to this topic may be

used for this purpose.

If the civilian subordinate is also subject to a collective bargaining agreement, the employee must also be given the "We-

ingarten" rights. See the topic in this _Deskbook_ entitled _EMPLOYEE INTERROGATION_ for an in-depth discussion of these rights.

If you fail to give a required rights advisement, the information you gain CANNOT BE USED IN A PUNITIVE ACTION

OR A COURT OF LAW, AND MAY NOT BE ABLE TO BE USED AGAINST THE INDIVIDUAL IN AN ADMINISTRA-

TIVE HEARING OR IN A CIVILIAN DISCIPLINARY ACTION. You have the option to provide "cleansing warnings" and

re-interrogate the subject again. Consult with your staff judge advocate (SJA) for advice in this situation.

**OBTAIN WAIVER OF RIGHTS**

Remember that giving proper advice of rights to a suspect is only the first step toward obtaining admissible evidence.

The second requirement is for the suspect to freely and intelligently waive these rights. Care must be exercised so that

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_**Chapter 8, Criminal Matters**_

_**Section 8-9 Advising Suspects of Their Rights**_

_**Page 2**_

the suspect is not coerced or unduly influenced into waiving these rights. A written waiver, after a written advice of

rights, is the best way to preserve the transaction for further use. These are provided for in Attachments 1 and 2 to this

topic and also in AF Form 1168 (Statement of Suspect). However, oral advice of rights and oral waivers are admissible in

evidence as well. Using exactly the same procedure each time the warnings are given and keeping precise notes of what

transpired (Memo for the Record or notebook), will help ensure that the person who gave the advice of rights and heard

the waiver of rights can testify at a later date as to exactly what happened on the occasion at issue. It is strongly encouraged to give the rights advisement in the presence of a witness, who then may testify at any hearing.

**FORMS TO USE**

Attachments 1 and 2 to this topic provide a script for a rights advisement which, when the advisory notes are removed,

provides a form for documenting advisement of rights. As an alternative to Attachments 1 and 2 to this topic, AF Form

1168 may be used to take a statement from the suspect. As stated above, all these forms provide the rights and waiver of

rights questions. Regardless of the forms used, after the advice of rights and waiver of the rights, and before the state-

ment is taken, the suspect should first be sworn and requested to sign the form. Again, having a witness present through-

out the advice of rights, the waiver and taking of the statement is another advisable method of establishing exactly what

occurred at the time. You may also wish a member of your security forces to give the advice of rights and act as the other

person present if any statement is given.

AF Form 1168 provides Article 31, UCMJ rights while Attachments 1 and 2 to this topic set forth civilian rights, and

probably closely conform to most state military law rights.

**RIGHT TO COUNSEL IN FIFTH AMENDMENT CONTEXT**

Under the Fifth Amendment to the United States Constitution, an individual has the right to have counsel present dur-

ing an interrogation while "in custody." In the military, a person has the right to have counsel present during questioning

under circumstances that meet the "official questioning" test. In other words, the military counsel rights are broader

than civilian rights because questioning in the military can be inherently coercive due to the grade or command relation-

ship between the questioner and the individual being interviewed.

**REQUEST FOR ATTORNEY**

If the suspect requests an attorney during the rights advisement, no further questioning may occur about the matter at

hand or about any other offense until counsel for the suspect is available for the interview either in person or through

some other technological means at the interview. This applies to interviews held even at a later date. If the commander

knows (or even has good reason to suspect) that the member has talked to a lawyer on the matter at hand or anything

related to it, the commander or a delegate must call that lawyer before the member is interviewed. In this situation, even

if the individual waives the right to counsel in the absence of counsel, the lawyer should be advised of the interview be-

fore it takes place and given a reasonable time to get there and be present during the questioning. If the lawyer is not

available or does not respond, you should make "all reasonable attempts" to contact the lawyer. That does not mean send-

ing a personal messenger from the base to the lawyer, but it may not mean only one phone call either. "Reasonable"

means what is reasonable under the circumstances. If this requirement is ignored, the statement obtained and any evi-

dence discovered as a result of it, may be useless for punitive purposes even though it possibly may be used for adverse

administrative action purposes. In addition, this conduct may constitute a violation of the member's constitutional rights

(MCM, Rule 305 (e)).

A suspect may waive the right to have an attorney present during an interview by initiating an interview or requesting an

interview be held without an attorney present. However, you should contact your SJA if this occurs, since the validity of

these waivers depends heavily upon the facts.

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_**Chapter 8, Criminal Matters**_

_**Section 8-9 Advising Suspects of Their Rights**_

_**Page 3**_

**TAPE RECORD STATEMENTS WHEN POSSIBLE**

Recorded statements are preferred over written statements because they contain the tone of the conversation in addition

to the substance. It prevents a suspect from later claiming there was coercion or some type of promise or agreement in

exchange for their statement. The recording can easily be transcribed if needed for use in any disciplinary proceeding. If

the suspect appears to be intoxicated, make sure to determine they are capable of understanding their rights and your

questions. Ask preliminary questions that can demonstrate that capability.

**CHECKLIST OF PRACTICAL TIPS**

1. Make sure the suspect understands what you are investigating. Legal specifications are not necessary -- lay terms are

okay.

2. A suspect may waive the rights. This waiver must be knowing, intelligent, and voluntary. A waiver MAY NOT be ob-

tained by coercion, threats or promises of reward or benefit.

3. Obtain the waiver in writing. Use AF Form 1168 or this topic's Attachments 1 or 2.

4. Have a witness present.

5. If the suspect requests counsel, stop all questioning until the suspect has had an opportunity to consult with counsel.

6. If the suspect indicates a desire to remain silent, cease questioning. This does not mean, however, that you cannot give

the suspect orders or directions on other matters. Just be careful not to threaten.

7. If after electing to make a statement, the suspect changes his or her mind, stop questioning.

8. If the suspect consents to make a statement, try to get it in writing. Handwritten is best.

9. Prepare a memorandum for the record (MFR) immediately after the session ends. Include:

What and when you advised the suspect (oral session only).

What the suspect said (oral session only).

What activities took place (suspect sat, stood, smoked, drank, ate, etc.) (oral, handwritten or recorded sessions).

What the suspect's attitude was (angry, contrite, cooperative, combative, etc.) (oral, handwritten or recorded).

Duration of the session with inclusive hours (oral, handwritten or recorded sessions).

Where the session was held (oral, handwritten or tape recorded sessions).

10. Think twice before you advise an intoxicated person of rights. If the person is drunk, that person may be legally inca-

pable of knowingly and voluntarily waiving rights.

11. Generally, once an individual has requested an attorney, no questioning should ever occur without the presence of

the attorney.

12. Remember, an interrogation occurs any time you intend to elicit incriminating statements from a person OR incrimi-

nating statements are reasonably likely to be elicited. Commanders should always advise subordinates of their rights

when questioning them about a suspected offense.

13. Ask the suspect,"Have you previously requested counsel?"

If the reply is negative, the interrogation may proceed.

If the reply is in the affirmative, the interrogation should cease, and the SJA should be consulted.

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_**Chapter 8, Criminal Matters**_

_**Section 8-9 Advising Suspects of Their Rights**_

_**Page 4**_

_**KWIK-NOTE: Know when and how to advise suspects of their rights. When in doubt, give the advice of rights. Failure to**_

_**provide rights advisement likely will result in the inadmissibility of the evidence obtained.**_

**RELATED TOPICS:**

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****

****

****

****

****

****

****

****

****

**SECTION**

Civilian Misconduct on Base

3-7

Commander's One-on-One Meeting with Member – Precautions

16-5

Confessions

8-10

Employee Interrogation

5-3

Investigation by Commander of Suspected Minor Offenses

16-10

Investigations and Inquiries

16-11

_**Air National Guard Commander's Legal Deskbook**_

297

_**Chapter 8, Criminal Matters**_

_**Section 8-9 Advising Suspects of Their Rights**_

_**Page 5**_

_**Attachment 1**_

**MILITARY SUSPECT SAMPLE ADVISEMENT OF RIGHTS**

I am, (Title, e.g., Investigating/Inquiry Officer, Commander) of the (Wing, Group, Squadron, etc.), Base. I am investigat-

ing the offense(s) of ______________, of which you are suspected. Before proceeding with this (investigation/ inquiry/

interview), I want to advise you of your rights under (Article 31 of the Uniform Code of Military Justice and/or Section

________ of the State military law) (as applicable).

You have the right to remain silent; that is, to say nothing at all. Any statement you do make, either oral or written, or

any act, may be used against you in a trial by court-martial or in other judicial, non-judicial, or administrative proceed-

ings.

You have the right to consult with a lawyer before any questioning. The (ANG if in Title 32 status or state active duty)

(Air Force if in Title 10 status) will appoint a military lawyer to represent you in this proceeding free of charge. You may also obtain a civilian lawyer of your choosing at your own expense.

You have the right to have such appointed military lawyer or retained civilian lawyer present during this (investigation/

inquiry/interview). You may request a lawyer at any time during this (investigation/ inquiry/interview). If you decide to

answer questions during this (investigation/inquiry/interview), you may stop the questioning at any time.

Have you previously requested a lawyer after being advised of rights? (If the answer is yes, stop. Consult your SJA before

proceeding. If the answer is no, continue).

Do you understand your rights as I have stated them for you?

Do you now wish to answer my questions without the presence of an attorney?

(If the member says yes, place the member (suspect) under oath or affirmation, ask the member to sign and date this

form or the AF Form 1168, acknowledging and waiving the rights).

(If the member says no, STOP and do not proceed with questioning of the member until you have the permission of the

member's counsel, and until you have further consulted with the SJA).

Do you understand that you may end this interview at any time?

I have read and understand my rights as stated above, and knowingly, freely and voluntarily waive them and make the

following statement or will give answers to the questions set forth below.

___________ __________________________

Date

Suspect

__________________________________

Questioner

__________________________________

Witness

_**NOW PROCEED WITH SUBSTANTIVE QUESTIONING**_

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 8, Criminal Matters**_

_**Section 8-9 Advising Suspects of Their Rights**_

_**Page 6**_

_**Attachment 2**_

_**Page 1 of 2**_

**CIVILIAN SUSPECT SAMPLE ADVISEMENT OF RIGHTS**

I am, (Title, e.g., Investigating/Inquiry Officer, Commander) of the (Wing, Group, Squadron, etc.), Base. I am investigat-

ing the offense(s) of ___________________, of which you are suspected. Before proceeding with this (investigation/ in-

quiry/ interview), I want to advise you of your rights under the Fifth Amendment to the U.S. Constitution (and any appli-

cable collective bargaining agreement).

You have the right to remain silent; that is, to say nothing at all. Any statement you do make, either oral or written, or

any act, may be used against you in a trial or in other judicial or administrative proceedings.

You have the right to consult with a lawyer before any questioning. You may also obtain a civilian lawyer of your choos-

ing at your own expense. If you cannot afford a lawyer, you may request that one be appointed for you.

_NOTE: You should not give rights to or question civilian suspects who have no military affiliation. That should be done by civilian law enforcement officials. The civilian suspects you will give rights to or question, will have a military affiliation. As such, since they will usually_ _be employed, it is unlikely, as a practical matter, that these suspects will be qualified (i.e. be deemed poor enough) for free civilian counsel._

You have the right to have this lawyer present during this (investigation/inquiry/interview). You may request a lawyer at

any time during this (investigation/inquiry/interview). If you decide to answer questions during this (investigation/

inquiry/interview), you may stop the questioning at any time.

Have you previously requested a lawyer after being advised of rights? (If the answer is yes, stop. Consult your SJA before

proceeding. If the answer is no, continue).

_NOTE: If the person being questioned is a federal technician or state employee, and is being questioned about a matter alleged to have occurred while in such status, AND if the results of that questioning may result in disciplinary action against that person in such status, federal law provides that that person, UPON REQUEST has the right to have a UNION REPRESENTATIVE present during questioning._

_Before questioning any such person, consult your SJA to determine if federal or state law or regulation or any applicable collective bargaining agreement requires the questioner to ADVISE the suspect of the right to have the union representative present. If there is NO REQUIREMENT TO ADVISE of the right to the union representative's presence and no request for same is made, continue with the script. If_ _there is NO REQUIREMENT TO ADVISE of the right to the union representative's presence and a request for same is made, stop, consult_ _your SJA and wait for the presence of the union representative._

_If there is a requirement in state law or the collective bargaining agreement to advise of the right to have the union representative present,_ _immediately before asking the suspect, "Do you understand your rights as I have outlined them for you?", the script should proceed:_ You have the right to have a representative from your union present during this (investigation/inquiry/interview). You

may request the presence of a union representative at any time during this (investigation/inquiry/interview).

Do you understand your rights as I have stated them for you?

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 8, Criminal Matters**_

_**Section 8-9 Advising Suspects of Their Rights**_

_**Page 7**_

_**Attachment 2**_

_**Page 2 of 2**_

Do you now wish to answer my questions without the presence of an attorney?

(If the person says yes, proceed).

(If the person says no, STOP, and do not proceed with questioning until you have the permission of the persons counsel,

and until you have further consulted with the SJA).

Do you now wish to answer my questions without the presence of a union representative? (Ask only if advised of this

right).

(If the person says yes, proceed unless the person has exercised the right to counsel. If there has been no exercise of the

right to counsel or union representation, place the suspect under oath or affirmation and ask the suspect to sign and or

date this form or an equivalent form (e.g., AF Form 1168), acknowledging and waiving the rights).

(If the person says no, STOP, and do not proceed with questioning until the union representative is present). Do you un-

derstand that you may end this interview at any time?

I have read and understand my rights as stated above, and knowingly, freely and voluntarily waive them and make the

following statement or will give answers to the questions set forth below.

___________ __________________________

Date

Suspect

__________________________________

Questioner

__________________________________

Witness

_**NOW PROCEED WITH SUBSTANTIVE QUESTIONING**_

_**Air National Guard Commander's Legal Deskbook**_

300

_**Chapter 8, Criminal Matters**_

_**Section 8-10 Confessions**_

_**Page 1**_

**Confessions**

**Updated by Major Christopher Kannady, June 2014**

**AUTHORITY:** U.S. Constitution, Fifth Amendment; UCMJ, Military Rules of Evidence 301-306 (Manual for Courts-

Martial); applicable state law.

**DEFINITION**

Confessions, simply put, are self-incriminatory statements, which may be used against a person in a criminal or adminis-

trative proceeding as evidence of the commission of an offense. A confession may be either oral or written. It may be vol-

untary or involuntary. An involuntary confession cannot be used against the individual in most cases.

Admissions are statements by suspects, direct or implied, of facts pertinent to an issue and when combined with other

facts, tend to prove guilt of an offense.

**ADVISEMENT OF RIGHTS**

Typically, a rights advisement precedes the taking of the confession. One exception to this is a person's spontaneous

statement which was not made in response to questioning. The rights advisement generally consists of three parts. Sus-

pects or accused individuals are advised of:

1. The general nature of the offense;

2. The right to remain silent; and

3. That any statement made can be used against them.

For an individual serving on Title 10 orders, these rights are contained in Article 31 of the Uniform Code of Military Jus-

tice (UCMJ). Civilians refer to the rights advisement as "Miranda" warnings. National Guard members not on Title 10

duty (Title 32 or State Active Duty) will be read "Miranda" warnings and/or a rights advisement pursuant to their state

Code of Military Justice.

Commonly, advising the member of the right to counsel will also be included in the rights advisement. In the military,

individuals have a right to assigned military counsel or civilian counsel at their own expense. Individuals advised of the

right to counsel should not be questioned if they indicate they want to speak to an attorney. Any statement taken or con-

fession made in violation of this right will likely be inadmissible. The exception is when giving a "cleansing warning."

This is an advisement that any previous statement made pursuant to a violation of rights will not be used against the

member, but any further statements will be admissible. Consult your Staff Judge Advocate for further guidance.

**VOLUNTARY OR INVOLUNTARY**

**Involuntary**

A confession may later be held to be INVOLUNTARY IF the atmosphere in which it was taken was inherently coercive;

or IF the required advisement of rights was not given before the confession; or even if the rights were given, the individ-

ual did not knowingly or voluntarily waive those rights before confessing.

**Voluntary**

A confession will only be held voluntary if the:

1. Atmosphere in which it was given was not inherently coercive; and

2. Required advisement of rights was given; and

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_**Chapter 8, Criminal Matters**_

_**Section 8-10 Confessions**_

_**Page 2**_

3. The individual knowingly, intelligently, and voluntarily waived those rights before confessing.

_**KWIK-NOTE: Before you question any unit member about that member's involvement in any kind of conduct which could**_

_**lead to adverse action, consult your Staff Judge Advocate.**_

**RELATED TOPICS:**

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**SECTION**

Advising Suspects of Their Rights

8-9

Commander's One-on-One Meeting with Member – Precautions

16-5

Courts-Martial

8-15

Employee Interrogation

5-3

Investigation by Commander of Suspected Minor Offenses

16-10

Investigations and Inquiries

16-11

_**Air National Guard Commander's Legal Deskbook**_

302

_**Chapter 8, Criminal Matters**_

_**Section 8-11 Polygraphs (Lie Detectors) - Use in the Military**_

_**Page 1**_

**Polygraphs (Lie Detectors) - Use in the Military**

**Updated by Major Christopher Kannady, June 2014**

**AUTHORITY:** Military Rules of Evidence (MRE) 707 (Manual for Courts-Martial); AFI 36-3209, _Separation and Retire-_

_ment Procedures for Air National Guard and Air Force Reserve Members_ (14 Apr 05); AFI 51-602, _Boards of Officers_ (2 Mar 94); AFI 71-101, Vol. 1, _Criminal Investigations_ (8 Apr 11); _United States v. Gipson_ , 24 M.J. 246 (CMA 1987); _United States v. Scheffer_ , 41 M.J. 683, (A.F. Ct. Crim. App. 1995), _decision set aside,_ 44 M.J. 442 (C.A.A.F. 1996), _decision of C.A.A.F. reversed_ , 523

U.S. 303 (1998); applicable state law. 

## INTRODUCTION

A polygraph examination is an investigative tool which can aid in determining facts both past and present.

AFOSI is the single manager for the Air Force polygraph program. All polygraph requests should be coordinated with the

unit staff judge advocate and AFOSI. Polygraph personnel are assigned regionally and travel worldwide to each base on

an "as needed" basis. Therefore, you should know the address and telephone number of the AFOSI office nearest your

base if you need to conduct a polygraph examination.

**COURTS-MARTIAL**

MRE 707 and the Manual for Courts-Martial prohibit admitting into evidence at a court-martial the results of a poly-

graph examination, the opinion of a polygraph examiner, or any reference to an offer to take, a failure to take or the tak-

ing of a polygraph examination, notwithstanding any other provision of law. The U.S. Supreme Court upheld this prohibi-

tion in a Constitutional challenge in _United States vs. Scheffer_ , 523 U.S. 303 (1998). However, statements made during polygraph examination may be admissible into evidence if those statements are otherwise admissible independent of the fact

they were made during the polygraph examination.

The active duty rule that polygraph evidence is inadmissible in a court-martial only applies to the Air National Guard in

Title 32 status if the state where your ANG base is located has adopted the Military Rules of Evidence as part of its law.

If your state has not adopted the MREs, then you must look to your state military or civilian law to determine the admis-

sibility of polygraph evidence in a court-martial.

**ADMINISTRATIVE BOARDS, NONJUDICIAL PUNISHMENT, AND INVESTIGATIONS AND INQUIRIES**

While polygraph results will probably not play an important role in courts-martial, they could assist in making determina-

tions about nonjudicial punishment, investigations and inquiries, and may, under certain circumstances, be admissible in

administrative board proceedings.

As a practical matter, commanders will usually not initiate a request to a member suspected of misconduct to take a poly-

graph, because they will usually have sufficient evidence of the misconduct, or be able to obtain it through other investi-

gative means, to take appropriate action.

A common way the polygraph issue arises is that accused or suspected member will, through counsel, request command-

ers to administer a government (AFOSI) polygraph to absolve them of any guilt. This is sometimes called an "exculpa-

tory" polygraph. Upon receiving such request, you will need to address the following questions:

1. Can I grant the request?

2. Should I grant the request?

3. Will the polygraph evidence be admissible in any pending or upcoming administrative board proceeding?

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_**Chapter 8, Criminal Matters**_

_**Section 8-11 Polygraphs (Lie Detectors) - Use in the Military**_

_**Page 2**_

**CAN I GRANT THE REQUEST?**

THERE IS NO LEGAL REQUIREMENT FOR YOU TO GRANT A MEMBER'S REQUEST TO TAKE A POLYGRAPH. You

can grant the request, but before you do, you should have your staff judge advocate (SJA) check with the AFOSI to see if

they will administer a polygraph.

**SHOULD I GRANT THE REQUEST?**

This is the big question. You are wise not to answer this question without first consulting with your SJA. If your SJA ad-

vises that you have enough reliable and credible evidence to be successful at the board proceeding or to take appropriate

action as a result of the investigation or inquiry, and you really have no reasonable doubt the member requesting the

polygraph has committed the misconduct, you have nothing to gain by granting the request.

One of the considerations in answering this question in the context of a pending administrative board proceeding is

whether the polygraph evidence will be admissible in that proceeding. This is further discussed later in this topic.

Also, know this: most members who request a government polygraph, will have already taken and passed a civilian ad-

ministered polygraph that you were not a part of. It is rare, that members, especially if they are represented by military

or civilian counsel, will offer to take a government polygraph and risk the results and statements made during the exami-

nation being used against them in a later adverse action proceeding, unless they know or are reasonably assured, they

will "pass" the government's polygraph. This knowledge or reasonable assurance comes after having passed a previous

polygraph test, given by a competent polygrapher concerning the matters in issue, since passing one polygraph in most

cases means the member will pass a second one (your test) concerning the same subject matter. This prior test may not

matter to you, especially if you have reasonable doubt of the member's guilt and wish to provide the member every op-

portunity to be absolved of any guilt; but you should be aware of the likelihood of an earlier test when the member re-

quests to take a government polygraph.

In most board proceedings - and it often surfaces in urinalysis boards - you usually have sufficient evidence to sustain the allegations, and probably should not grant the polygraph request. If the available evidence is conflicting with no clear indication either way of the commission or non-commission of the misconduct, you may consider granting the request, al-

though you are not required to.

Although the scientific reliability of the polygraph has not sufficiently been established to permit its use in evidence at a criminal trial or court-martial, polygraphs are widely used by civilian and military law enforcement officials in investigations and inquiries.

Assuming it is ultimately determined that the polygraph evidence will be admissible at a board proceeding, as a condi-

tion of your granting the request, the member and the member's counsel should sign an appropriate statement before

the government test is administered, that the decision to take the polygraph examination was voluntary and on the ad-

vice of counsel, that anything the member says or does during the examination and its results will be admissible in evi-

dence against the member, and that the member will submit to the examination under the procedural rules of the

AFOSI. Your SJA should prepare this statement.

**WILL THE POLYGRAPH EVIDENCE BE ADMISSIBLE?**

As previously mentioned, before answering the question "Should I grant the request?" you should determine whether

the polygraph evidence will be admissible in a pending administrative board proceeding. If it will not be admissible in

that proceeding, then it makes no sense to grant the request.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 8, Criminal Matters**_

_**Section 8-11 Polygraphs (Lie Detectors) - Use in the Military**_

_**Page 3**_

The rules of evidence in administrative board proceedings are more relaxed than they are in a court-martial. Pursuant to

AFI 36-3209, the legal advisor has discretion to admit or refuse to admit polygraph evidence. Pursuant to AFI 51-602,

the legal advisor has discretion to admit all evidence that is relevant, reasonably available and is not cumulative. Poly-

graph evidence is hearsay, but in board proceedings, the rules against hearsay are relaxed if the legal advisor determines

that the nature of the hearsay evidence presents adequate safeguards of its truthfulness. As a practical matter, a legal advisor will probably determine a civilian-administered polygraph test does not have sufficient indicia of truthfulness, but

may find a government administered test is of sufficient truthfulness to warrant its admission into evidence. That distinc-

tion is often based on the military's unfamiliarity with the methods used by, and qualifications of civilian polygraphers,

especially when the prior test was given without the military's participation.

Also, pursuant to AFI 51-602, para 2.1.6 Air Force and Air National Guard policy is that polygraph test results are not

admissible except on the consent of the legal advisor, recorder and the respondent ( _i.e.,_ the member accused of misconduct). Thus, if the polygraph result is unfavorable to the member, the member can prevent its use in the board proceed-

ing.

_**KWIK-NOTE: Before granting a unit member's request to take a polygraph examination, commanders should discuss all the**_

_**ramifications with their Staff Judge Advocate.**_

**RELATED TOPICS:**

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**SECTION**

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Boards – Investigative

16-4

Courts-Martial

8-15

Investigations and Inquiries

16-11

OSI – Air Force

8-13

_**Air National Guard Commander's Legal Deskbook**_

305

_**Chapter 8, Criminal Matters**_

_**Section 8-12 Criminal Investigations, Prosecutions and Reporting - DoD and DOJ**_

_**Page 1**_

**Criminal Investigations, Prosecutions and Reporting - DoD and DOJ**

**Updated by Major Christopher Kannady, June 2014**

**AUTHORITY:** 28 U.S.C. 535; Title 18, United States Code; DoDD 5505.1, _DoD Criminal Investigation Standards, Policies and_ _Procedures_ (21 Nov 03) and DoDD 5525.7, _Implementation of the Memorandum of Understanding Between the DOJ and the DoD_

_Relating to the Investigation and Prosecution of Certain Crimes_ (21 Nov 03); AFI 31-206, S _ecurity Forces Investigation Program_ (16

Sep 09); AFI 71-101, Vol. 1, _Criminal Investigations_ (8 Apr 2011). 

## INTRODUCTION

The Department of Defense and the Department of Justice have entered into Memoranda of Understanding (MOU) for

the coordinated handling of criminal matters of mutual concern. The DoD and its agencies have issued directives and

regulations to implement these MOUs.

**DoD POLICY**

DoD Directive 5505.1 states: "It is DoD policy to improve the efficiency and effectiveness of the DoD criminal investiga-

tion activities through development and implementation of consistent standards, policies and procedures." Within that

broad directive the DoD Inspector General has oversight responsibility.

**OSI AND SF RESPONSIBILITIES**

The jurisdiction of your base will determine which police agency will investigate offenses. Normally, the OSI should ini-

tially be contacted for offenses that are military or that affect the mission or installation. It will either take the case or refer you to the FBI or other federal agency. The local police will normally investigate civilian offenses. Your staff judge advocate (SJA) should be contacted for referral advice.

AFI 71-101 ("Criminal Investigations, Counterintelligence, and Protective Service Matters") and AFI 31-206 ("Security

Forces Investigation Program") provide guidance. In general terms, at an active duty installation the more serious crimi-

nal allegations are investigated by AFOSI, and the less serious allegations are investigated by Air Force Security Forces.

An Investigative Decision Guide containing particulars on specific types of criminal offenses and their referral is found at AFI 31-206, Attachment 2 (Investigative Matrix). Most ANG security forces do not serve the same law enforcement or

investigation function as do their active duty counterparts.

**ANG - DUTY TO REPORT CRIMINAL ACTIVITY**

Criminal offenses having a connection with Air National Guard functions should be investigated thoroughly so that a

proper disposition can be made. Outcomes can vary widely depending on the type of offense, the status of the perpetra-

tor, the skill with which the investigation is conducted, and the notoriety of the offense, to mention but a few. Members

of the ANG always have an obligation to appropriately report suspected criminal activity, and persons receiving such in-

formation have an obligation to thereafter proceed appropriately. Commanders must ensure that any information, allega-

tion or complaint related to criminal offenses under Title 18 of the United States Code involving government officials or

employees is reported to the AFOSI, who in turn, is responsible for notifying the Department of Justice. A judge advo-

cate should ALWAYS be consulted at the outset to assist the commander in guiding the investigation in the proper direc-

tion. Cooperation between investigative agencies and prosecutorial agencies should be maintained at all times.

**DoDD 5525.7**

DoD Directive 5525.7 establishes a DoD policy of maintaining effective working relationships with the Department of

Justice in the investigation and prosecution of crimes involving the programs, operations, or personnel of the Depart-

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 8, Criminal Matters**_

_**Section 8-12 Criminal Investigations, Prosecutions and Reporting- DoD and DOJ**_

_**Page 2**_

ment of Defense. The 1984 MOU (attached to this DoDD) acknowledges that DOJ has primary responsibility for enforce-

ment of federal laws in the United States District Courts, and that DoD has responsibility for the integrity of its pro-

grams, operations and installations and for the discipline of the Armed Forces. It encourages joint and coordinated inves-

tigative efforts and sharing of information. It provides specific guidance for investigation and prosecution of cases involving:

1. Corruption, fraud, theft and embezzlement in DoD operations;

2. Crimes committed on military installations by persons who are, and who are not subject to the UCMJ; and

3. Crimes committed off military installations by military members.

This directive does not affect the investigative authority fixed by the 1979 "Agreement Governing the Conduct of the De-

fense Department Counter-Intelligence Activities in Conjunction with the Federal Bureau of Investigation," and by the

1983 MOU among DoD, DOJ, and the FBI concerning "Use of Federal Military Forces in Domestic Terrorist Incidents."

_**KWIK-NOTE: Commanders should coordinate with their SJAs and promptly report federal criminal activity to the AFOSI.**_

**RELATED TOPICS:**

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****

****

****

****

****

****

**SECTION**

Anti-Terrorist Matters

25-4

Arrest by Civilian Authorities

8-6

Base Security Council/Resource Protection Committee

3-5

Civilian Misconduct on Base

3-7

Federal Magistrate Judges

8-3

Inspector General

16-9

Investigation by Commanders of Suspected Minor Offenses

16-10

Investigations and Inquiries

16-11

Memoranda of Understanding (MOUs)

6-6

OSI and SF Reports

8-14

_**Air National Guard Commander's Legal Deskbook**_

307

_**Chapter 8, Criminal Matters**_

_**Section 8-13 Air Force Office of Special Investigation (AFOSI)**_

_**Page 1**_

**Air Force Office of Special Investigation**

**Updated by Major Christopher Kannady, June 2014**

**AUTHORITY:** AFI 71-101, Vol. 1, _Criminal Investigations_ (8 Apr 2011); AFI 31-206, _Security Police Investigations_ (16 Dec 2009).

**ORGANIZATION**

The Air Force Office of Special Investigation (AFOSI) was established on August 1, 1948 to provide an independent cen-

tralized organization to conduct unbiased factual investigations. The mission of the AFOSI is to provide to the com-

mander (including Air National Guard) complete service concerning investigation into matters of a criminal nature,

fraud or counterintelligence. Their offices are located on active duty Air Force installations.

**INVESTIGATIVE SERVICES PROVIDED**

The AFOSI can provide investigative services to an Air National Guard commander in the following areas:

1. Alleged major crimes such as: arson, bribery, homicide, counterfeiting, sex offenses, impersonation, improper use or

diversion of federal government property or employees, forgery, robbery, housebreaking, drug abuse, and other crimes

that violate the Uniform Code of Military Justice or other federal laws and directives;

2. Treason, sedition, subversion, major security violations, terrorism, espionage, and other clandestine intelligence activities;

3. Crimes against the United States that involve contracting matters, appropriated and non-appropriated fund activities,

computer systems, pay and allowance matters, and acquiring or disposing of U.S. Air Force property;

4. Other crimes (major or minor) or matters that need full or specialized investigation;

5. Investigative surveys to detect unlawful and improper acts, fraud and counterintelligence; and

6. Other specialized areas of investigation listed in AFI 31-206, attachment 2. This attachment also lists which crimes

are investigated by AFOSI and local Security Forces.

**REFERRAL OF INVESTIGATION TO AFOSI**

The commander may refer matters for investigation to an AFOSI unit, but has the discretion NOT to refer an investiga-

tion to the AFOSI. Consult your staff judge advocate for special rules where the commander must refer the matter to

AFOSI, for instance certain sexual assault cases. For practical purposes, commanders should use the AFOSI unit closest

to their ANG base. Commanders and their chief of security forces and staff judge advocate should know and maintain

current liaison with the AFOSI unit nearest their base.

Depending on the alleged offense, the AFOSI may also work concurrently with other agencies such as your security

forces, and federal, state, or local law enforcement officials.

If the AFOSI conducts an investigation, commanders should contact their staff judge advocate before any AFOSI investi-

gative documents are released.

_**Air National Guard Commander's Legal Deskbook**_

308

_**Chapter 8, Criminal Matters**_

_**Section 8-13 Air Force Office of Special Investigation (AFOSI)**_

_**Page 2**_

**SPECIALIZED FUNCTIONS**

The AFOSI has specialized functions which may be of valuable use to an Air National Guard commander. For example,

the AFOSI is the sole manager of the USAF polygraph program, has specially trained mental health professionals for fo-

rensic hypnosis to aid a witness or victim's memory enhancement. AFOSI also can provide computer crime investigative

assistance, forensic specialists to aid in aircraft accident investigation boards, technical surveillance countermeasures,

and protective services (including assessments and estimates on terrorist and foreign intelligence threats to Air National

Guard deployments, exercises, weapons facilities, and other base facilities), can investigate all non-routine security violations, and can also provide undercover agents for investigations at your base.

POLICY MATTERS

AFOSI agents, as Title 10 active duty members, are governed by the Manual for Courts-Martial, and hence may only ap-

prehend people subject to the UCMJ. They cannot apprehend a Title 32 National Guard member.

The AFOSI Report of Investigation contains information learned by the AFOSI as a result of the investigation, and will

not have recommendations or suggestions on appropriate command action. AFOSI reports may be released in whole or

in part but only to persons who require access pursuant to their official duties. However, only HQ AFOSI may authorize

release of information in their reports outside the Air Force or Air National Guard, or determine whether to release or

deny the release of information in those reports under the Freedom of Information or Privacy Acts pursuant to the law

enforcement records exemption.

Commanders are well-advised to consult and coordinate with their chief of security forces and staff judge advocate both

before and during any AFOSI investigation into activities on their installation.

_**KWIK-NOTE: The AFOSI can be a valuable resource for Air National Guard commanders.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Anti-Terrorist Matters

25-4

Aircraft Accidents and Safety Investigations Off-Base

16-2

Aircraft and Missile Accident Investigations and Reports

16-3

Complaint of Wrongs

8-20

Criminal Investigations, Prosecutions and Reporting – DoD and DOJ

8-12

Fraud, Waste and Abuse

16-7

Investigations and Inquiries

16-11

OSI and SF Reports

8-14

Polygraphs (Lie Detectors) – Use in the Military

8-11

Releasing Information in Litigation

14-14

Surveillance

16-13

_**Air National Guard Commander's Legal Deskbook**_

309

_**Chapter 8, Criminal Matters**_

_**Section 8-14 OSI and SF Reports**_

_**Page 1**_

**OSI and SF Reports**

**Updated by Major Christopher Kannady, June 2014**

**AUTHORITY:** AFI 51-301, _Civil Litigation_ (1 Jul 2002); AFI 71-101, Vol. 1, _Criminal Investigations_ (8 Apr 2011); AFI 31-401, _Information Security Program Management_ (1 Nov 2005). 

## INTRODUCTION

The Air Force Office of Special Investigations (OSI) and unit Security Forces (SF) supply reports to commanders for infor-

mation and action. When commanders receive these reports they must establish proper internal control measures to en-

sure the reports are adequately safeguarded and promptly referred to appropriate authorities with the responsibility to

begin action.

You may also receive a copy of a police report from a civilian police department. Great care should also be taken in acting

on these reports. These reports contain personally identifiable information (PII) and must be protected.

**PROMPT ACTION - WHY?**

Prompt action on OSI and SF Reports of Investigations (ROIs) facilitates the administration of discipline within a unit.

Your first obligation is to read the report. Your second obligation is to consult the SJA to determine:

1. If further investigation is required;

2. What offense has been committed; and

3. A proper course of action and who can and should take it.

Do not let the report sit on your desk without prompt action, but do not take action on the report without consulting the

SJA. Since the ROI has taken time to be prepared, and a higher level of command may have to initiate action, you may

need to act promptly to prevent the matter from becoming stale. Remember also, that the suspects of ROIs usually have

been under the strain of knowing they are being investigated, and are entitled to know if you or another authority are or

are not taking action.

**PROTECTION, HANDLING AND RELEASE**

AFI 31-401 sets forth detailed responsibilities for action authorities upon their receipt of these reports. In summary, ac-

tion authorities are required to:

1. Determine who must receive the reports, or parts thereof;

2. Determine who may receive the reports, or parts thereof;

3. Provide enough copies to proper recipients;

4. Protect, control and destroy, as appropriate, copies of the reports;

5. Determine when extracts or summaries of reports are appropriate, and prepare and release to authorized recipients;

_**Air National Guard Commander's Legal Deskbook**_

310

_**Chapter 8, Criminal Matters**_

_**Section 8-14 OSI and SF Reports**_

_**Page 2**_

6. Prevent unauthorized disclosure of reports which might jeopardize a confidential matter; and

7. Coordinate with the OSI or SF commander when in doubt about exercising these responsibilities.

**RELEASE OF REPORTS - MILITARY REPORTS**

After notice to, and unless specifically prohibited by the OSI or SF, the action authority may release the entire ROI to government and defense attorneys (military or civilian) during the adjudication process of judicial or administrative actions

in accordance with AFI 51-301. However, never release an ROI until the investigation is completed. Always coordinate

with the SJA before releasing any ROI or portion thereof to defense attorneys.

As a rule, do not give witnesses access to reports, extracts or summaries of investigations. However, persons who have

furnished written statements during an investigation may be given copies of their own statements upon request. This

does not apply if the statements are classified or if the report stipulates the statements cannot be released without the

prior concurrence of the OSI or SF. Also, be sure to coordinate any release with the SJA.

In certain situations, it may become necessary to prepare an extract or summary rather than release an entire ROI. Com-

manders may prepare extracts or summaries from such reports for release when command action has not been taken. See

AFI 71-101, Vol 1 for examples of situations appropriate to preparing an extract or summary.

As federal records, OSI and SF reports, and summaries or extracts of reports are controlled by the Freedom of Informa-

tion Act. Law enforcement records are subject to exemption from the Privacy Act. Each request for information under

these Acts receives full consideration. Exemptions permitted under the Acts are invoked when considered appropriate

and may result in all or parts of an ROI being withheld.

Release of an AFOSI ROI or extract or summary outside the Air Force requires the approval of Headquarters AFOSI.

Seek this approval through the servicing AFOSI unit and coordinate with your SJA.

**RELEASE OF REPORTS - CIVILIAN REPORTS**

If you should receive a civilian police report concerning one of your members, DO NOT UNDER ANY CIRCUM-

STANCES, RELEASE OR DISCLOSE THE CONTENTS OF ANY PART OF THIS REPORT TO THE SUSPECT OR TO

ANYONE WHO DOES NOT HAVE THE "NEED TO KNOW" WITHOUT COORDINATING WITH THE SJA AND THE

POLICE DEPARTMENT INVOLVED. Failure to adhere to this guidance could jeopardize an ongoing investigation as well

as the personal safety of those involved. In addition, your relationship with the civilian police department could be ad-

versely affected by such inadvertent release.

_**KWIK-NOTE: Promptly act on OSI and SF reports. Coordination with the Staff Judge Advocate in this area is critical to**_

_**avoid improper release of information and potential personal liability.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Arrest by Civilian Authorities

8-6

Freedom of Information Act

14-11

"For Official Use Only"

14-3

OSI – Air Force

8-13

Privacy Act

14-12

Releasing Information in Litigation

14-7

_**Air National Guard Commander's Legal Deskbook**_

311

_**Chapter 8, Criminal Matters**_

_**Section 8-15 Courts-Martial**_

_**Page 1**_

**Courts-Martial**

**Updated by Major Christopher Kannady, June 2014**

**AUTHORITY:** Uniform Code of Military Justice (UCMJ), 10 U.S.C. 801-940; Manual for Court-Martial; 32 U.S.C. 326-

327 (As amended Dec. 2, 2002, P.L. 107-314, Div A, Title V, Subtitle B, § 512(a), 116 Stat. 2537); applicable state law.

**STATUS OF OFFENDER**

Jurisdiction over an accused and over a particular offense under a state code of military justice or the federal Uniform

Code of Military Justice (UCMJ) is determined by the duty status of the accused at the time the alleged offense was com-

mitted, and by the offense itself. The place where the offense occurred does not exclusively determine jurisdiction, but

the place of offense may determine if the member is also subject to civilian criminal laws.

The federal UCMJ ONLY APPLIES TO MILITARY MEMBERS WHO WERE IN TITLE 10 status at the time the alleged

offense was committed. If a military member was in Title 10 status at the time he/she allegedly committed an offense,

the member may be prosecuted by court-martial under the federal UCMJ. If a member was in a Title 32 or other status

such as State Active duty, the accused member may be prosecuted by court-martial under state law or regulations, or by

civilian courts under applicable state law. Under some state codes of military justice, the code applies to members

whether on or off duty, similar to how the Uniform Code of Military Justice applies to Title 10, active duty members.

**PROCEDURES**

Under the federal UCMJ there are three types of courts-martial: Summary, Special, and General. A Summary court-

martial can impose only minor punishment, and is reserved for minor offenses. A Special Court-Martial is generally used

for intermediate grade offenses and can impose more severe sentences up to a year imprisonment. A General Court-

Martial is reserved for the most serious offenses and can impose the maximum punishments authorized by law, includ-

ing the death penalty for certain offenses.

The federal UCMJ specifically delineates who will act as the convening authority. The level of convening authority is gen-

erally dependent on the severity of the offense charged and the level of the court-martial contemplated. The convening

authority in a state military prosecution can range from the local commander to the Adjutant General. State law should

be scrupulously consulted to determine the appropriate convening authority. The appropriate choice may impact review

and appellate functions within a state military justice system.

Under the federal UCMJ an accused is entitled to a free ("detailed") military defense counsel in General and Special

court-martial proceedings. Along with the military judge and trial counsel ("prosecutor"), the military defense counsel

must be certified as defense counsel in compliance with specific requirements. There also may be similar certification pro-

visions under various individual state military justice laws or regulations.

Participants in a federal court-martial include the military judge, trial counsel and defense counsel. The accused may also

elect to be tried by a "Panel" (acting like a jury) that will be comprised of officers and, if the accused is enlisted, may include enlisted members. The military judge, trial counsel, and court members ("Panel") must be free to perform their

respective responsibilities in a fair and impartial manner. In this regard, the UCMJ and many state military justice laws

and regulations make it unlawful for either a convening authority or any other military member to use command influ-

ence or to attempt to coerce, or by any unauthorized means, influence the actions of a court-martial or any other military

tribunal in reaching the findings or sentence in any case.

Consistent with the ethical responsibilities of all attorneys, the defense counsel must be free to defend the accused in

compliance with applicable Rules of Professional Responsibility. It is also unlawful for a superior military member to ad-

_**Air National Guard Commander's Legal Deskbook**_

312

_**Chapter 8, Criminal Matters**_

_**Section 8-15 Courts-Martial**_

_**Page 2**_

versely evaluate a defense or trial counsel in efficiency reports or otherwise, because of the manner such counsel per-

formed their duties or because of the outcome of a court-martial proceeding.

The Military Rules of Evidence (MRE) and the Manual for Court-Martial are applicable and used for all federal UCMJ

matters, including court-martial in a Title 10 status. The MREs may have been made applicable to courts-martial under

your individual state military justice law. Each state military justice law or code should be carefully reviewed to deter-

mine what rules of evidence are applicable.

**PRACTICAL REALITIES**

As a practical matter, few courts-martial are conducted against a member in the Air National Guard while not in Title 10

active federal service. This trend is a result of many factors, many of which are inherent in the specific individual state

military codes. Other factors that curtail the use of state courts-martial are:

1. Limitations of Types of Offenses Punishable by Court-Martial: Most state military justice codes proscribe purely mili-

tary offenses (examples, AWOL, insubordination, etc.), unlike the UCMJ, which proscribes both military-type and tradi-

tional civilian offenses (examples, murder, rape, robbery, etc.). A military member in Title 32 status who commits a civil-

ian offense is usually not prosecuted by court-martial, but by the local federal, state, county or municipal civilian prosecutors for a violation of the civilian law. Depending upon the results of that prosecution, the member may then be adminis-

tratively discharged from the Air National Guard. Some civilian prosecutions can take an exorbitant amount of time;

therefore, commanders may choose to consider non-judicial punishment or administrative discharge prior to any convic-

tion if the commander determines the member committed the offense by a preponderance of the evidence. Consult your

state code and the staff judge advocate for further guidance.

2. Fiscal, Budget and Manpower Constraints: At least three judge advocates are needed for a court-martial; trial counsel,

military judge and defense counsel. Court members (the jury) and a stenographer are also necessary along with any wit-

nesses. Since Air National Guard judge advocates are traditional guardsmen, the length of time it takes to conduct a trial

may be significant, and may require the unit to devote a significant number of additional military days to all the partici-

pants. As an alternative to court-martial, ANG commanders often choose administrative discharge proceedings which are

a more expedient, less expensive alternative method of removing a member from the Guard. This procedure may or may

not require a board and usually results in what the commander wants most: removal of the member from the unit and

the Air National Guard with minimal drain on a unit's resources.

3. Since passage of the FY03 National Defense Authorization Act, the limitations on the maximum authorized punish-

ments in courts-martial for National Guard members not in federal service (see 32 U.S.C. 326-327) have been repealed.

The states are now able to establish a maximum punishment table that is more realistic and effective. Prior to this re-

peal, the states' punishments were extremely limited and unrealistic. Pursuant to the FY03 Act, Congress mandated that

the Secretary of Defense provide a Draft Model State Code and Manuel for Congress. The Model State Code follows the

UCMJ format as much as possible. However, the drafters recognized and upheld state sovereignty. The Model State Code

is available for introduction to state legislatures as the basis for revision or replacement of state military justice codes in order to align them with the current joint forces environment and total force concept. See below for more on the Model

State Code.

4. Age of current state military justice codes: Most states military justice codes have not been reviewed or rewritten since the 1960s. The Uniform Commission of Model State Laws drafted a Military Justice Code Act of 1961. Some 23 states

adopted that proposed legislation. The committees that drafted that particular piece of legislation had no Guard judge

advocate input. It was based purely on the federal UCMJ. In 1968 the federal UCMJ underwent a major overhaul. But

most states did not incorporate those changes into their military laws that had been adopted in 1961. Thereafter, many

states adopted portions of similar or newly drafted codes. None are uniform. Many state codes lack strong non-judicial

_**Air National Guard Commander's Legal Deskbook**_

313

_**Chapter 8, Criminal Matters**_

_**Section 8-15 Courts-Martial**_

_**Page 3**_

punishment procedures. This weakness creates an ineffective military justice system for many states. The age and lack of

uniformity in the state codes is another factor in the low usage of courts-martial. States are moving toward passage on

their own modern state codes. Commanders are encouraged to work with their staff judge advocate to determine if the

state code is adequately updated.

Model State Justice Code Highlights:

1. Institutes strong non-judicial punishment procedures and punishments.

2. Follows the federal UCMJ format for uniformity purposes.

3. Mirrors the federal UCMJ procedures to the greatest extent possible.

4. Creates 24/7 jurisdiction by the establishment of jurisdiction over purely military offenses and shared jurisdiction over nonmilitary, traditional civilian crimes.

5. Creates a permissive (not automatic) appeal procedure that adopts the specific state criminal appeals procedures.

6. Provides for cross-component and inter-states utilization of judge advocates and convening authorities.

7. Has extra territorial application.

8. Establishes judge advocates' qualifications to mirror those of the federal UCMJ to the greatest extent possible. The

state judge advocate has significant discretion in this area.

9. Simplifies courts-martial procedures.

10. Provides for the establishment and funding of individual state military justice funds to bear the costs of courts-

martial.

The Model Code was presented to Congress in December 2003. The adoption of the Model Code by each state legislature

is the necessary key to ensure uniformity and success of the Model State Justice Code. The adoption of the Model Code

provides the military commander with a current and viable military justice tool, establishes credibility with the active

duty component, effectuates mission success, provides uniformity in the increasingly mixed ARC environments, and pro-

vides the military justice training that Air National Judge Advocates need. Finally, the adoption of the Model Justice

Code supports the Chief of the National Guard Bureau's three primary goals for the National Guard; homeland security,

the war on terrorism, and remaining a ready, reliable and relevant fighting force.

_**KWIK-NOTE: Court-Martial under state law may not always be the best forum to deal with problem personnel. You may**_

_**wish to refer criminal issues to state civilian authorities. Your staff judge advocate should be consulted whenever you con-**_

_**sider convening a court-martial.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Active Duty – Air National Guard Members

11-2

Active State Duty

11-3

Command Influence

2-2

Evidence – Differing Standards and Burdens of Proof

8-4

Military Justice Jurisdiction – ANG Members in Title 10 Status

8-2

Pretrial Confinement or Restraint

8-8

Status of National Guard Members

11-7

Witnesses – Obtaining

17-18

Witness Preparation

17-19

_**Air National Guard Commander's Legal Deskbook**_

314

_**Chapter 8, Criminal Matters**_

_**Section 8-16 Inspections and Searches**_

_**Page 1**_

**Inspections and Searches**

**Updated by Major Christopher Kannady, June 2014**

**AUTHORITY:** Fourth Amendment to the U.S. Constitution; AFI 31-201, _Security Police Standards and Procedures_ (30 Mar 09); AFI 36-3209, _Separation and Retirement Procedures for Air National Guard and Air Reserve Members_ , (14 Apr 05, Incorporating Through Change 3, 20 Sep 11); Military Rules of Evidence, Rules 311-316; Manual for Courts-Martial; applicable

state law. 

## INTRODUCTION

The Fourth Amendment to the U.S. Constitution provides, "The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue,

but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the

persons or things to be seized."

As a commander, general military law gives you authority to direct inspections and authorize probable-cause searches of

persons and property under your jurisdiction. However, military law requires that the commander authorizing a search

be neutral on the facts. In order to separate the commander gathering facts and responsible for discipline from the search

authorization commander, at many bases the authority to authorize searches and seizures has been centralized with the

Wing or Group commander. All law enforcement personnel should be aware of the very strict procedures that must be

followed in obtaining a search authorization.

You should consult your Staff Judge Advocate before requesting or authorizing a search or seizure. Incriminating evi-

dence obtained in violation of proper search procedures can still be able to be used, in a limited way, in an administrative action. For example, see AFI 36-3209, paragraph 1.16.4, permitting evidence from a command- directed urinalysis to be

used to establish a basis of discharge, but not on the issue of characterization of discharge.

However, you must still _appreciate the difference between inspections/inventories and searches_ because failure to do so may result in exclusion of evidence in a court-martial or administrative proceeding. Searches are evidence-gathering acts for law enforcement activities. Inspections, on the other hand, have the primary purpose of determining and ensuring the security,

military fitness, or good order and discipline of your command. Motive is often the test. If particular evidence from a par-

ticular person is sought, from a particular place, an "Authorization to Search" is required and the search must be based

upon probable cause to believe the person or place to be searched will produce the particular evidence sought. By con-

trast, the "Inspection" is conducted for health, welfare, safety and morale purposes without targeting in advance a par-

ticular person or place. That is the basic difference between an "inspection" and a "probable cause search." _Prior consultation with the Staff Judge Advocate to distinguish between the two is essential._

**SEARCHES**

A search may be authorized for:

1. Person or property situated in a place under your command and control;

2. Military property or property of a non appropriated fund; and/or

3. Property in a foreign country which is owned, used, occupied by or in possession of a member of your command.

A search may be conducted for the following types of property:

1. Contraband ( _i.e.,_ drugs, unauthorized government property);

2. Fruits of a crime ( _i.e.,_ stolen TV, money); and/or

3. Evidence of a crime ( _i.e.,_ bloody T-shirt, weapon).

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 8, Criminal Matters**_

_**Section 8-16 Inspections and Searches**_

_**Page 2**_

**TYPES OF SEARCHES**

**Probable-Cause Searches**

The basic rule is short: When probable cause exists, a commander, acting as a neutral and detached magistrate, can

authorize searches of persons or places subject to the commander's military control. That relatively short rule, however,

carries an abundance of legal baggage. The military written "Authorization to Search" by the commander pursuant to AFI

31-201 (AF Form 1176) is equivalent to the civilian search warrant by a judge. In either case, the issuer of the authority

to search must be neutral and detached. Attachment 1 to this topic is a checklist provided to assist the commander to

determine whether and to what extent search authorization based upon probable cause should be granted.

_Because of the ever-changing law in this area, a commander should always consult with the Staff Judge Advocate before authorizing a_ _probable-cause search._

Remember, the commander authorizing a search may be called upon weeks or months later to testify at a trial or other

proceeding (civilian or military) regarding the conclusion that probable cause existed prior to the search. Thus, it is a

good idea for the commander to take and retain notes on a copy of the attached checklist or elsewhere that can be used

later, if necessary, to refresh the commander's memory.

Probable Cause to Search: For there to be probable cause to search particular premises, it must be more likely than not

that the specific items to be searched for are connected with criminal activities and these items will be found in the place to be searched.

Probable cause may arise from:

1. Your personal knowledge;

2. Oral or written information from others; or

3. A combination of personal knowledge and information from others.

The search authorization may rely on information from others, as long as it is determined that the information is credi-

ble. An anonymous telephone call, by itself, will never justify a probable-cause search. In the case of drug dogs, the

search authorization Commander must have observed and be personally aware of the dog's successful training exercises

as well as the dog's actual record of success in search situations. Drug dogs are not usually used in the Air National

Guard, although some bases enter into Memoranda of Agreements with local law enforcement for such services.

For the authorization to search, you should place the person providing the information to you under oath.

The search may be an oral authorization to search, based upon probable cause, when exigent circumstances exist and de-

lay may otherwise impair the likelihood of success.

When information comes to your attention that may justify a search authorization:

1. Refer the source of the information to the security forces who will investigate or refer the source to the AFOSI;

2. Do not personally investigate;

3. If the commander discovers the information:

a. Secure the premises with an NCO;

b. Notify security forces or the AFOSI; and

c. Note any incriminating evidence or statements; and

4. Coordinate with the SJA on probable-cause facts to be presented to the search authorizing commander.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 8, Criminal Matters**_

_**Section 8-16 Inspections and Searches**_

_**Page 3**_

**Non-Probable-Cause Searches**

Consent Searches

If an individual consents to a search, you do not need search authority.

1. Prior to requesting authority to search an individual's body or premises, a request for consent should be made. For ex-

ample, "Will you allow me to obtain blood to determine the amount of alcohol in your body?" Try to have consent ac-

knowledged in writing (AF Form 1304, Consent for Search and Seizure) or at least have one witness present.

2. Consent must be knowledgeable and genuinely voluntary. It cannot be the result of threats or coercion. Advise of the

right to refuse to consent.

3. Mere acquiescence to a search is not sufficient to justify a search based upon consent.

4. The individual giving consent must have either an exclusive or joint interest in the premises to be searched.

a. An assigned occupant of a dormitory room can consent to a search of the joint or common areas of the room.

b. Only the individual who has the exclusive use of a separate closet, locker, or other part of the premises may con-

sent to a search of those areas.

_See_ the Attachment to the _Deskbook_ section entitled " _Consent Urinalysis_ " for a sample consent form.

There is no requirement to offer Article 31 Rights when asking for consent to search. You are requesting permission to

produce blood, urine, or the ability to look inside the person's car.

Other Non-Probable-Cause Searches

Most searches require probable cause (reasonable grounds) or consent to be valid. There are unique situations where

you do not need probable cause to search, such as searches upon entry to or exit from U.S. installations, aircraft or ves-

sels or searches within jails.

**Adhere to the Search Rules**

Evidence seized from an illegal search cannot be used as evidence against an accused.

While these rules and the checklist in Attachment 1 to this topic may appear detailed, time consuming and somewhat

unnecessary, your adherence to them will either "make" or "break" your case. If procedures are performed correctly from

the outset, it will ultimately save you and the government time, aggravation and money, and lead to the swift and appro-

priate adjudication of offenders.

**INSPECTIONS**

An inspection is an examination of the whole or part of a unit, organization, installation, ship, aircraft, or vehicle. Com-

manders have the inherent authority to ensure their command is equipped and functioning property, maintaining proper

standards of readiness, sanitation and cleanliness and that personnel are present, fit and ready and ready for duty. An in-

spection is conducted for the primary function of ensuring mission readiness. The purpose of an inspection cannot be to

obtain evidence for use in a court-martial or other disciplinary, administrative or criminal proceedings. If, however, such

evidence is a product of a legitimate inspection, it may be used in any such proceeding. No probable cause is needed for

an inspection because inspections are not considered "searches" within the meaning of the Fourth Amendment. Nor is

there a need to give notice of an inspection.

Common examples of inspections are: requesting random urine samples from members, requesting identification of

every individual at the base entrance gate, and checking military readiness mobility kits.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 8, Criminal Matters**_

_**Section 8-16 Inspections and Searches**_

_**Page 4**_

The key to a valid inspection is that the inspection must be of all people in a definable group who are subject to it, and

no one person may be singled out in advance.

Commanders should prepare a written memorandum prior to conducting an inspection to outline the purpose of the in-

spection. Guidance for permissible inspections is found in Military Rule of Evidence 313.

Inspections must be conducted in a reasonable manner. An inspection is reasonable if the scope, intensity, and manner of

execution of the inspection is reasonably related to its purpose.

_Attachment 2_ to this topic is a sample letter with rules for a gate inspection.

**CONCLUSION**

The above discussion is only intended to be general overview of the rules in searches and seizures and inspections. Be-

cause many legal considerations and technical aspects are involved in this area, which may vary because of unique factual

settings, REMEMBER, BEFORE CONDUCTING ANY SEARCH OR INSPECTION, CONSULT WITH YOUR STAFF

JUDGE ADVOCATE TO ENSURE COMPLIANCE WITH THE APPLICABLE LAW AND REGULATIONS.

_**KWIK-NOTE: Inspections and searches are valuable tools for commanders to maintain discipline and proper standards of**_

_**readiness. Because the law in this area is always changing - both in the federal and state sectors - commanders should AL-**_

_**WAYS consult with their SJA before conducting a search or inspection. Remember, state law must also be consulted before**_

_**conducting a search because state law may be more restrictive than federal law in permitting a search.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Jurisdiction

2-5

Chain of Custody

8-5

Advising Suspects of Their Rights

8-9

Consent Urinalysis

10-8

Command Directed Urinalysis

10-9

Installations Jointly or Solely Occupied by the ANG

25-12

_**Air National Guard Commander's Legal Deskbook**_

318

_**Chapter 8, Criminal Matters**_

_**Section 8-16 Inspections and Searches**_

_**Page 5**_

_Attachment 1_

_Page1 of 2_

Date: _________________

COMMANDER'S SEARCH AUTHORIZATION CHECKLIST

YES/NO

1. Has this search request been coordinated with the SJA?

2. Am I the person with command authority over the person(s) or place(s) to be searched?

3. Am I sufficiently detached from the set of facts presented to me to be able to render an objective, unbiased determina-

tion whether probable cause exists? (If not, someone higher up the command chain must decide probable cause).

4. Do I know the name and organization of the requester of the search?

5. Do I know the name and organization of the suspect (target of the search)?

6. Do I know what or who is to be searched?

7. Do I know what is to be seized?

8. Is it probable (better than 50-50) that the items to be seized are located in the place or on the person to be searched?

a. Does the information provided to me suggest more than mere suspicion, conjecture or rumor?

b. Is there a linkage between the information provided to me and the place or person to be searched?

(1) Did someone see the item(s) to be seized in the place or on the person to be searched?

(2) Did the suspect say that the item(s) to be seized was (were) in the place to be searched or on the sus-

pect's person?

(3) If "no" to both of the above, can I articulate another probable linkage? c. Is the information fresh (has it

occurred recently)?

c. Is the information fresh (has it occurred recently)?

(1) Do I know when (date and time) the observations supplying the linkage in 8(b)(1)(3) above were

made? (If so, note this)

(2) Considering the passage of time, is it nonetheless probable that the items to be seized are still located

in the place or on the person to be searched?

d. Am I able to distinguish the ultimate (original) source of the information from the "middlemen" who are pass-

ing the information?

_**Air National Guard Commander's Legal Deskbook**_

319

_**Chapter 8, Criminal Matters**_

_**Section 8-16 Inspections and Searches**_

_**Page 6**_

_Attachment 1_

_Page2 of 2_

Date: __________________

YES/NO

e. Does the source of the information have the capability to make the conclusions he/she has made (for example,

how does the source know what marijuana looks or smells like or did the source see the illegal evidence)?

f. Is the source of the information reliable?

(1) Do I know the source personally and believe the source to be reliable?

(2) Has the source previously provided information that has proven to be accurate?

(3) Has someone in a position of trust or authority (for example, Commander or First Sergeant) provided

me with facts (not conclusions) sufficient for me to make my own conclusions that the source of the

information is reliable?

(4) Is the source of the information a law enforcement officer?

g. Are the "middlemen" reliable and, if so, am I able to articulate why?

h. Have the persons providing information to me been placed under oath? (See sample oath below).

(1) Once that person(s) has been placed under oath, have I received or recorded the information in writing

and had that person sign it? (A signed statement under oath is called an affidavit).

9. Probable cause exists for this warrant (authorization to search) because I have checked "yes" to all of the above (for

8(b), 8(c) and 8(f) -- "yes" to at least one of the sub questions in each).

10. If I granted this warrant (authorization to search) on oral approval, I have signed AF Form 1176 on or before the next

duty day following my oral approval to search and seize.

11. If I granted this warrant (authorization to search), I have retained this checklist and taken sufficient notes to be able to refresh my memory and testify at trial if necessary, regarding the factors that convinced me that probable cause

existed.

_**SAMPLE OATH: "Do you (insert search requester and/or source's name), swear (or affirm) that the information you are**_

_**about to relate to me as probable cause for the issuance of search authority is true in fact to the best of your knowledge and**_

_**belief, so help you God?"**_

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 8, Criminal Matters**_

_**Section 8-16 Inspections and Searches**_

_**Page 7**_

_Attachment 2_

**SAMPLE INSPECTION LETTER**

(Unit Letterhead)

MEMORANDUM FOR Security Forces Flight Commander

Date

FROM: Base Commander

Subject: Gate Inspection

1. On July 25, 201___ between the hours of 0700 and 0900, members of your flight will conduct a gate inspection of mo-

tor vehicles entering this base.

2. Every fifth motor vehicle will be stopped and subject to this inspection.

3. Your personnel will inspect for illegal drugs in such motor vehicle.

4. Your personnel will inspect the interior, glove compartment and trunk of each vehicle stopped (every fifth vehicle).

5. If during the inspection of the vehicle, your personnel see in plain view other contraband, they will seize it.

6. Notify me immediately of any illegal drugs or other contraband found. Safeguard the evidence seized. Coordinate pro-

cedures for preserving the chain of custody of any potential seized evidence with the SJA before the inspection begins.

7. Before the inspection, also coordinate with the SJA procedures for (a) detention of individuals from whose vehicle con-

traband is seized until civilian law enforcement authorities arrive; and (b) searches of the person of those persons de-

tained.

SIGNATURE BLOCK

RANK

ANG BASE COMMANDER

_**Air National Guard Commander's Legal Deskbook**_

321

_**Chapter 8, Criminal Matters**_

_**Section 8-17 Driving While Intoxicated and Other Offenses Involving Intoxication**_

_**Page 1**_

**Driving While Intoxicated and Other Offenses Involving Intoxication**

**Updated by Major Christopher Kannady, June 2014**

**AUTHORITY:** Applicable state law (civilian or military); Uniform Code of Military Justice, Article 111 (for reference

only). 

## INTRODUCTION

Alcohol-related driving offenses committed by military members, whether they are "on" or "off" duty and alcohol-related

non-driving offenses while a member is on duty, pose special problems for a commander. The duty status of the member

(Title 10 or Title 32, or "off duty"), the place of the offense, and the laws of the state are factors which will determine

what courses of action are available to a commander to deal with those special problems.

**DRIVING OFFENSES**

**Civilian**

Depending on state law, the offense may be Driving While Intoxicated (DWI), Driving Under the Influence (DUI), Driv-

ing While Ability Impaired (DWAI), or similar term, and the offense may be either or both: (1) a function of alcohol con-

centration in the blood measured by a chemical test of the breath, blood, urine or saliva; or (2) a function of the opinion

of the investigating or arresting law enforcement officer or other eyewitness, that the offending driver is intoxicated, un-

der the influence or impaired. In the first stated offense, the blood alcohol concentration of .08% to .10% is usually, un-

der state law, the cutoff for DWI or DUI. In the second stated offense, the blood alcohol concentration may create a pre-

sumption or inference of intoxication, being under the influence, or impairment, to aid the prosecution in its proof of the

charge.

**Military Title 32 Status**

The UCMJ does not apply to members in Title 32 or civilian status. Most state military laws or regulations do not specifi-

cally address these alcohol-related driving offenses, leaving prosecution to state civilian authorities. If your state's military law or regulation specifically covers these offenses, it will usually govern when a member is in Title 32 status, and is on base when the offense is committed. Note, however, that some state codes of military justice allow you to refer to

other state laws as a basis for administrative action. When a member is in a Title 32 status, jurisdiction may exist

whether on or off duty. A DUI arrest alone, may be enough to initiate non-judicial punishment or administrative dis-

charge proceedings.

**Military Title 10 Status**

The UCMJ (Article 111) applies when the member is in Title 10 status. However, under the UCMJ, "intoxication" is de-

fined not in terms of a percentage of alcohol concentration but in terms of impairment. Specifically, "intoxicated" for military justice purposes is defined as the presence in the blood of any amount of alcohol, however small, sufficient to sensi-

bly impair the rational exercise of the mental and physical faculties (required for vehicle operation). Thus, the alcohol

concentration percentage (via breathalyzer, blood test, or urinalysis) is not determinative in and of itself. Rather, results of these chemical tests should be considered together with other evidence of intoxication (manner of driving; behavioral/

sobriety test; observations of investigating police and other witnesses). Thus, it is entirely possible for a person to be

DWI even though a breathalyzer or BAT (blood alcohol test) eventually discloses a blood alcohol concentration considera-

bly below .10%.

_**Air National Guard Commander's Legal Deskbook**_

322

_**Chapter 8, Criminal Matters Section**_

_**Section 8-17 Driving While Intoxicated and Other Offenses Involving Intoxication**_

_**Page 2**_

**SPECIAL PROBLEMS**

Here are some special problems with which a commander may be confronted involving these offenses and military mem-

bers, and the courses of action available.

1. Member in Title 32 status or state active duty and on ANG base at time of offense: Unless state military law or regula-

tion specifically applies, the member will be prosecuted by civilian authorities for violating the civilian law. Security

forces (SF) should detain the member and call civilian authorities for further processing of the member. A commander

may take disciplinary or adverse administrative action against the member either pending the outcome or after the dispo-

sition of the civilian charge. Suspension of base driving privileges may be authorized. Before taking any action, however,

the commander should consult the staff judge advocate.

2. Member in Title 32 status and on Air Force base or other active duty installation at time of offense: The UCMJ does

not apply because of the member's status but the installation commander of the place of offense can suspend or restrict

the member's driving privileges on that installation, as well as on other active duty installations. The member's com-

mander should consider appropriate disciplinary or administrative action depending upon the provisions and applicabil-

ity of the state military law or regulation of the member's unit's state. Consult the staff judge advocate before action is

taken.

3. Member in non-duty status at time of offense: Whether the member commits the offense on civilian or military land,

and is or is not subject to prosecution for violating that jurisdiction's DWI, DUI or DWAI laws, the member's com-

mander may be able to take appropriate disciplinary or administrative action, if the state military law or regulation pro-

vides that simply because the member is a part of the organized militia of the state, the member is therefore always sub-

ject to state military law or regulation. Consult the SJA before action is taken to see if your state's law so provides.

4. Member in Title 10 status and on active duty installation at time of offense: The UCMJ applies. If security forces sus-

pect a person is DWI, DUI or DWAI, due to erratic driving, alcohol on the breath, presence of an open container in the

vehicle, etc., then the security forces officer may require the vehicle operator to take a field sobriety test, the results of which are documented on DD Form 1569. If the performance on the sobriety test reasonably suggests alcohol caused impairment, the operator will be asked to take a breathalyzer test. If the driver cannot or will not consent to the breatha-

lyzer test, the base commander may issue an "authorization to search" for an involuntary BAT. That may not be neces-

sary however if the SF's observations of the driver are well documented. If the suspect refuses the test, the installation

commander may suspend or revoke installation driving privileges regardless of the outcome of the charges, and may also

prosecute the suspect for failure to obey a lawful order. Furthermore, if there is suspicion the driver is under the influ-

ence of chemicals or drugs other than alcohol, then depending on the level of suspicion, a command-directed urinalysis

or "authorization to search" to take a BAT may be issued. Note also that state military law or regulation may have a spe-

cial provision governing Guard members in Title 10 status, so that both the UCMJ and state law may apply. Consult the

staff judge advocate in this situation.

**ADVERSE CIVILIAN CONSEQUENCES**

In addition to any adverse military effects on the member, upon conviction of an alcohol-related driving offense, the fol-

lowing adverse civilian consequences will likely befall the member:

1. Restriction of the offender's driving privileges or a temporary suspension of the offender's driver's license;

2. Substantial increase in automobile insurance premiums or cancellation of insurance;

3. No medical or lost wage coverage under the member's automobile insurance policy if the member is injured and/or is

disabled from employment due to an alcohol-related accident;

_**Air National Guard Commander's Legal Deskbook**_

323

_**Chapter 8, Criminal Matters Section**_

_**Section 8-17 Driving While Intoxicated and Other Offenses Involving Intoxication**_

_**Page 3**_

4. Substantial private attorneys fees for the civilian proceeding; and/or

5. Lawsuit against the member for any personal injury or property damage caused to third persons if there was an

accident:

a. The member will be sued individually if not in a duty status at the time of the offense; and

b. Both the member and possibly the state (if state active duty) or the U.S. (Title 10 or Title 32 status) will be

sued if the member was in a duty status at the time. In such case, however, the member will not likely be indemnified by

the state or U.S. since the member will be deemed not to have been acting within the scope of employment while DWI,

DUI or DWAI. Also, the state and federal government may not even be liable since the person was not acting within the

scope of employment.

**NON-DRIVING OFFENSES**

**Civilian or Military Status**

The typical non-driving alcohol related offense is drunk on duty. If a commander reasonably believes a member is drunk

on duty, based upon either the commander's personal observation or the reliable report of another person who observed

the member, a BAT or urine sample is not required to prove intoxication. If the observer was in a position to observe the

breath, eyes, stance, walk or speech of the suspected intoxicated member, and is able to form an opinion that the mem-

ber is intoxicated, that may be sufficient to take appropriate disciplinary or administrative action. The type of action permitted depends upon the status of the member at the time of the offense: whether the individual is on Title 10, 32 or

state active duty or was in the status of a federal technician or state employee.

The reliability of the observer is enhanced if the observer has previously seen the currently suspected intoxicated mem-

ber in a non-intoxicated state. As stated earlier, although a BAT or urine sample is not required to prove the offense, if

one is desired by the commander, either to enhance the proof of intoxication or to prove intoxication from drugs of a

member in a military status at the time of the offense, a Search Authorization (military equivalent of a civilian Search

Warrant) is probably necessary before the BAT can be ordered, if the commander wants to have the results admissible in

any applicable disciplinary or administrative proceeding. The observations of the witness supporting the claim of sus-

pected intoxication, as well as those of a doctor (to whom the suspect may be ordered to report to also be observed)

should be written in affidavit form to support the Search Authorization.

Those same affidavits should be prepared as written evidence of the commission of the offense, even if a BAT is not or-

dered for the military member.

The Search Authorization should not be used to order a BAT for federal technicians or state employees. Federal regula-

tions, or state law and regulations, or any applicable collective bargaining agreement will govern persons in such status

at the time of the commission of such offense. Drunk or intoxicated on duty is usually not a civilian offense, so as a prac-

tical matter, bringing the member to the local police or consultation with the local civilian prosecutor to attempt to ob-

tain a search warrant, is not a viable course of action. Remember, the commander only needs the Search Authorization

for a BAT or urine sample, and these are not required to prove intoxication; the personal observations and opinion of a

reliable person are often sufficient. The staff judge advocate should be consulted before ordering any BAT or urine sam-

ple, or before issuing a Search Authorization in these cases.

_**KWIK-NOTE: DWI offenses committed on ANG bases by Title 32 personnel should be referred to local civilian law enforce-**_

_**ment officials. BATs are usually not necessary to prove non-driving alcohol related military offenses.**_

_**Air National Guard Commander's Legal Deskbook**_

324

_**Chapter 8, Criminal Matters**_

_**Section 8-17 Driving While Intoxicated and Other Offenses Involving Intoxication**_

_**Page 4**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Alcohol Abuse

10-3

Civilian Misconduct on Base

3-7

Command Directed Urinalysis

10-9

Consent Urinalysis

10-8

Courts-Martial

8-15

Driver's Licenses

21-3

Drug Abuse

10-4

Enforceability of Orders by Air Force Officers to ANG Personnel Not in Federal Service

11-5

Indemnification Agreements

18-4

Investigation by Commander of Suspected Minor Offenses

16-10

Lawsuits against National Guard Personnel

18-6

Line of Duty Determinations

1-19

Military Justice Jurisdiction – ANG Members in Title 10 Status

8-2

Nonjudicial Punishment

24-11

Relief from Civil Liability

18-10

Status of National Guard Members

11-7

Suspension of Base Driving Privileges

21-7

_**Air National Guard Commander's Legal Deskbook**_

325

_**Chapter 8, Criminal Matters**_

_**Section 8-18 Use of Deadly Force**_

_**Page 1**_

**Use of Deadly Force**

**Updated by Major Christopher Kannady, June 2014**

**AUTHORITY:** AFI 31-117, _Arming and Use of Force by Air Force Personnel_ (29 June 12); DoDD 5210.56; _Carrying of Firearms_ _and the Use of Force by DoD Personnel Engaged in Security, Law and Order, or Counterintelligence Activities_ (1 Apr 2011); applicable state law. 

## INTRODUCTION

Deadly force is normally defined as that use of force that is reasonably calculated or likely to cause death or serious bod-

ily injury to another. Any use of a weapon is usually viewed as the use of deadly force.

The use of deadly force by members of the Air National Guard is a matter of great significance and potential liability. It is a topic for which the commander should request a researched briefing by the unit's staff judge advocate (SJA) and security forces well in advance of any potential hostility. The most opportune time to request preparation of this briefing is

now.

This topic will provide a brief and general overview only and should not be relied upon without consultation with your

SJA. The law governing the use of deadly force varies so much from state to state that definitive advice cannot be pro-

vided in an article such as this. Ultimately, the substantive law of your state will govern and will be used to determine

whether the acts of your ANG members were within the law or outside it. This is true regardless of whether your mem-

bers are ordered to duty under Title 32 orders and funding or are in a state active duty status. The Air Force's guidance

and position on the use of deadly force is found at AFI 31-117, para 1.5. It should be given great weight in your planning,

but must be regarded as secondary to any state law which is more restrictive.

Do not assume that tactics or weapons intended for use against a wartime enemy force will be deemed appropriate in a

domestic situation.

**WHEN DEADLY FORCE MAY BE USED**

**Generally**

Laws of the various states, while they vary widely, generally revolve around the principle that only the minimum force

necessary under the circumstances should be used, _i.e.,_ that the force used must be "objectively reasonable." A general statement as to when deadly force may be used is:

1. When necessary to protect oneself or others from the loss of life or serious bodily harm; and

2. In certain circumstances, the protection of property involved in national defense.

However these principles are general only, and the specifics of state law must be referenced. This law may sometimes be

found in state statutes and sometimes in court decisions within the state.

**By the ANG**

As a general principle, the official and legal status of the person employing deadly force will be crucial in determining

whether the use of deadly force was proper or prohibited. In most states, the status of the person using the deadly force,

and the facts and circumstances confronting that person, will determine the lawfulness or unlawfulness of the acts. The

following are four likely possibilities for ANG involvement in the use of deadly force:

_**Air National Guard Commander's Legal Deskbook**_

326

_**Chapter 8, Criminal Matters**_

_**Section 8-18 Use of Deadly Force**_

_**Page 2**_

1. In the rare case of a declaration of martial law by a governor or the President, the use of deadly force would be most

liberally condoned. Martial law powers generally exceed common police powers;

2. If your state confers police or "peace officer" powers on members of the National Guard under certain circumstances

and types of orders, then the rules governing the use of deadly force by peace officers in your state would likely apply;

3. At the most restrictive end, your ANG personnel could be held to have a status to use deadly force no higher than that

of a common citizen; and

4. The status of, and use of deadly force by Air Base Security Guards (state employees) is the subject of another topic in

this _Deskbook_ entitled " _AIR BASE SECURITY GUARDS_."

Your state law should be carefully examined as to the statutory or regulatory circumstances under which the governor or

the adjutant general can employ the National Guard. Unauthorized use of the National Guard might later be found to

divest the members of any higher legal status to use deadly force, and subject them and their superiors to liability.

**GUIDANCE FOR PROPER USE OF DEADLY FORCE**

Issues that will arise after the fact in an attempt to establish the wrongfulness of deadly force will include the following (and consequently this list can be used in advance as a checklist of obvious things to do correctly):

1. Were the ANG members authorized to use the weapons employed in accordance with applicable state and federal train-

ing requirements?

2. Were the ANG members properly briefed on their status, their authority, and on the "rules of engagement" with re-

spect to the use of deadly force prior to undertaking their mission?

3. Did the ANG members follow these rules in carrying out their orders?

4. Was command, control, and supervision of the ANG members by those in authority adequate, both in planning and in

execution?

5. Were the weapons and equipment issued to ANG members for the mission appropriate in light of the perceived

threat?

6. Were the ANG members adequately trained in both the use and the destructive capability of the weapons they were

issued?

7. Was there an adequate timing sequence developed and briefed as to the employment of firearms ( _i.e.,_ issuance of ammunition, loading of ammunition, assuming a ready position with the weapon, chambering of rounds, and firing)?

8. Did the briefing or any subsequent orders include confusing instructions ( _i.e.,_ "shoot to wound," "fire over their heads")?

ANG members who are likely to be employed for riot control and similar duty should be thoroughly trained in proper

responses and general principles of engagement. This should be done as advance training without regard to a particular

future event. Then, already trained, they should be carefully briefed and "rehearsed" on the particular rules of engage-

ment and the likely scenario which now faces them. Untrained or questionable members should not be deployed. Your

judge advocates should be involved in planning and coordinating these efforts.

_**Air National Guard Commander's Legal Deskbook**_

327

_**Chapter 8, Criminal Matters**_

_**Section 8-18 Use of Deadly Force**_

_**Page 3**_

_**KWIK-NOTE: The improper use of deadly force can expose ANG commanders and the state and federal government to major**_

_**liabilities and possible criminal sanctions. State law is crucial in understanding permissible use of force.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Aid to Civilian Authorities

6-2

Air Base Security Guards

3-3

Anti-Terrorist Matters

25-4

Arrests Authorized by the ANG

8-7

Civilian Misconduct on Base

3-7

Debarment

3-11

_Feres_ Doctrine

18-3

National Defense Area

25-15

Personal Liability of Federal and State Officials

18-9

_Posse Comitatus_

6-7

Possession of Privately Owned Firearms on Base

3-15

Withdrawal of Authority to Bear Firearms

1-41

_**Air National Guard Commander's Legal Deskbook**_

328

_**Chapter 8, Criminal Matters**_

_**Section 8-19 Theft and Vandalism Claims**_

_**Page 1**_

**Theft and Vandalism Claims**

**Updated by Major Christopher Kannady, June 2014**

**AUTHORITY:** ANGR 112-1, _Claims Against or in Favor of the United States Arising from National Guard Activities_ (10 Jul 89); AFI 51-501, _Tort Claims_ (15 Dec 05); AFI 51-502, _Personnel and Government Recovery Claims_ (1 Mar 97).

**WHAT ARE THEY?**

Theft and vandalism claims refer to the personally owned property of unit members, rather than ANG or Air Force prop-

erty. ANGR 112-1 provides guidelines and proceedings for implementing the Federal Tort Claims Act (28 U.S.C. 2671-

2680), the National Guard Claims Act (32 U.S.C. 715) as well as other claims statutes. This regulation does not apply to

claims resulting from non-federally funded duty.

**ADVICE TO UNIT MEMBERS**

**Preventive Action**

You should advise your members to secure any of their personal property at the unit to ensure their potential claims will

be paid should theft or damage occur. Doors to office areas should be locked when not occupied. Members performing

duty in open areas should secure their property, such as by keeping wallets or checkbooks on their person, or in their

automobile which should be locked at all times when it is not occupied.

**Reporting Theft or Damage**

When theft or damage occurs, members should report the theft or damage to the security forces or other law enforce-

ment personnel. The member should then contact the nearest active duty claims office about filing a claim, but only after

the member first seeks advice from a judge advocate of the member's unit.

**Processing Claims**

Any claims for damage to or theft of personal property by members of your unit on duty at the location of duty may be

handled and processed by the nearest claims officer at an active duty base. The claims officer is located in the legal office and is an active duty judge advocate. Your unit members need to be aware, however, that such claims are not automatically paid. The loss must not be due to the negligence or wrongful act of the claimant, and must be recognized as payable

under the applicable regulations.

**COMMANDER HAS NO AUTHORITY OVER THESE CLAIMS**

ANG commanders have no approval or denial authority over these theft and vandalism claims.

_**KWIK-NOTE: Commanders, through Newcomer's Briefings, the Legal Assistance program and the Preventive Law program,**_

_**should strongly encourage their members to safeguard their personal property.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Claims

18-2

Legal Assistance Program

17-8

Newcomer's Briefing

1-22

Preventive Law Program

17-15

_**Air National Guard Commander's Legal Deskbook**_

329

_**Chapter 8, Criminal Matters**_

_**Section 8-20 Complaint of Wrongs**_

_**Page 1**_

**Complaint of Wrongs**

**Updated by Major Christopher Kannady, June 2014**

**AUTHORITY:** Applicable state law; Uniform Code of Military Justice, Article 138 (for reference only); AFI 51-904, _Complaints of Wrongs Under Article 138, Uniform Code of Military Justice_ (30 Jun 94) (for reference only). ****

**WHAT IS IT?**

Both the federal Uniform Code of Military Justice and many state codes of military justice contain provisions for com-

plaints of wrongs by members of the military.

Article 138, UCMJ states that members of the military who believe they have been wronged by their commanding officer,

and who upon due application to such commander are refused redress, may complain to any superior commanding offi-

cers who will forward the complaint to the officer exercising general court-martial jurisdiction. If your state has such a

provision, the officer exercising general court-martial jurisdiction would either be the governor, the adjutant general, the commander of the state ANG or a wing commander. This officer must examine the complaint and take proper measures

for redressing the wrong.

Some states may have implemented this general provision of their codes of military justice by regulation, so commanders

should check their state regulations as well.

The "complaint of wrongs" procedure sets forth a command system for dealing with certain complaints.

It also can be used as an appeal of an adverse action taken against a member where the action taken provides no appel-

late procedure. An example would be where a member receives an administrative letter of reprimand (LOR) and dis-

agrees with it. Since there is no appellate procedure for the LOR, the complaint of wrongs procedure may be used. How-

ever, in adverse actions which do not provide an appellate review, there is no requirement for commanders, upon taking

such adverse action, to advise members that they may seek redress under the complaint of wrongs procedure.

It is also distinct from the Inspector General complaint system and other methods, such as congressional or legislative

inquiries, that persons have to bring complaints to the attention of command. Complaints of wrongs filed under the state

code of military justice necessarily receive high-level scrutiny because of the requirement for review by the general court-

martial convening authority.

**FEATURES**

If applicable to your state, there are several unique features within the "complaint of wrongs" system:

1. The complainant must usually be a member of the Air National Guard. This system may not be used by civilians to

complain about Guard activities;

2. The complaint must be against a commander. Although imaginative complainants may usually be able to frame almost

any complaint as one against a commander, some subjects are clearly outside the scope of this system;

3. The complainant must first go to the commander who allegedly committed the wrong and ask for redress. This means

that these complaints sometimes can be addressed at the lowest levels; and

4. The system does not always require a formal investigation. The general court-martial convening authority may direct a

formal investigation, an informal inquiry or take such other action as is deemed appropriate. The state code or regulation

_**Air National Guard Commander's Legal Deskbook**_

330

_**Chapter 8, Criminal Matters**_

_**Section 8-20 Complaint of Wrongs**_

_**Page 2**_

providing for the complaint of wrongs procedure will probably only require (if it is similar to UCMJ, Article 138) that the

senior commander "examine" the complaint and try to redress it. The general court-martial convening authority, there-

fore, has great flexibility in determining how to look into one of these complaints. Options run the gamut from conven-

ing a board of officers for an investigation to a desk review.

**CONCLUSION**

When a subordinate files a complaint of wrongs, a commander's first action should be to contact the staff judge advocate

for advice how to proceed under your state laws and regulations.

_**KWIK-NOTE: Under the Complaint of Wrongs system, the complainant must first go to the commander who allegedly com-**_

_**mitted the wrong and ask for redress.**_

**RELATED TOPICS:**

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**SECTION**

Congressional and Legislative Inquiries

16-6

Freedom to Complain – Military Members

16-8

_**Air National Guard Commander's Legal Deskbook**_

331

_**Chapter 8, Criminal Matters**_

_**Section 8-21 Model State Code of Military Justice**_

_**Page 1**_

**Model State Code of Military Justice**

**By Colonel Julio R. Barron, April 2013**

**AUTHORITY:** Article 1, Section 8, U.S. Constitution; 10 U.S.C. §§ 10106-10107; 32 U.S.C. §§ 325-327; 32 U.S.C. § 512;

ANGI 10-801, _National Guard Domestic Operations_ (2008). 

## INTRODUCTION

Both Active duty Airmen are subject to the Uniform Code of Military Justice (UCMJ) while serving in a Title 10 U.S.C.

status. Similarly, Air National Guard Airmen are also subject to the UCMJ when serving in a Title 10 U.S.C. status. How-

ever, when Airmen serve in a Title 32 U.S.C. status or in a State Active Duty status, they are subject to their respective

state code of military justice and not the UCMJ. Military justice action which may be taken by the individual states may

significantly differ from those military justice actions under the UCMJ.

**BACKGROUND**

The National Guard is the modern Militia reserved to the States by the Militia Clause of the United States Constitution.

The militia is divided into two classes: (1) the organized militia, which comprises the National Guard and (2) the unor-

ganized militia, which includes all other members of the militia.

The Air National Guard is part of the organized militia that:

is a land [air] force;

is trained, and has its officers appointed, under the sixteenth clauses of section 8, Article I, of the U.S. Constitution;

is organized, armed and equipped wholly or partly at the Federal expense; and

is federally recognized.

The reserve components of the Air Force are the Air National Guard and the Air Force Reserve. The Air National Guard

receives all of its funding from Congress and forms an integral part of the total armed forces of the Unites States. To be-

come a member of the Air National Guard, a person must enlist in, and be federally recognized as a member of, the Na-

tional Guard of a state. Since 1933, all persons who have enlisted in a State National Guard have simultaneously enlisted

in the National Guard of the United States. Under the "dual enlistment" system, Airmen are administered as members

of their respective State National Guard units, except when on active duty in the National Guard of the United States. 10

U.S.C. § 10107. When on active duty as a member of the National Guard of the United States, Guard members are re-

lieved of duty in their State National Guard units. 32 U.S.C. § 325; 10 U.S.C. § 10106.

The National Guard is the only reserve component of the United States' military that has a non-federal mission. As a fed-

eral force, the Air National Guard provides trained assets as an integral part of America's forces. In its state role, the Air National Guard maintains a domestic operations mission under ANGI 10-8101.

Air National Guard Airmen serve at the command of the state governors, unless the President activates them into federal

active duty under Title 10. When Air National Guard members are in Title 32 or State status, the UCMJ is not applicable.

The authority to discipline Airmen in a Title 32 U.S.C. status or in a state status remains with the states.

Title 32 U.S.C. §§ 326–327 authorizes each state National Guard to administer a military justice program similar to the

UCMJ, with punitive articles and punishments determined by the states.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 8, Criminal Matters**_

_**Section 8-21 Model State Code of Military Justice**_

_**Page 2**_

The National Defense Authorization Act (NDAA) of 2003, Public Law No. 107-314, amended Title 32 U.S.C. § 512 re-

quired the Secretary of Defense to prepare a state Model Code of Military Justice and a Model Manual for Courts-Martial.

This action followed a 1998 military justice panel recommendation for creation of a standardized and updated state Code

of Military Justice for use by the National Guard in a Title 32 status or a State Active Duty status.

In July 2003, a team of Air and Army National Guard Judge Advocates drafted the first Model Code of Military Justice.

They produced a draft Model Manual for Courts-Martial in September 2003. Both drafts were forwarded to Congress, as

required in the NDAA. From January through June 2004, the drafts were reviewed by the Departments of Defense, the

U.S. Air Force, and the U.S. Army. Their comments were ultimately incorporated into the draft Model Code of Military

Justice. The final draft of the Model Code of Military Justice and the Model Manual for Courts-Martial were approved by

the Department of Defense in 2005.

**WHY THE MODEL STATE CODE IS NECESSARY**

Two examples highlight the need for uniformity:

I. While performing security duties during the Southwest Border missions, an Airman in Title 32 status is accused of

committing a violent offense against another Airman. The local district attorney, facing scarce resources, declines to

prosecute assuming the military could court-martial the Airman. If the Airman was from a State that enacted the Model

Code, the Airman could be prosecuted for the offense and if convicted, he could be incarcerated. Conversely, if the Air-

man was from a state that had not adopted the Model Code, the Airman could be reduced in rank and administratively

separated, but would not face a felony conviction or incarceration for the crime.

II. An Airman in Title 32 status works side-by-side with an active duty (Title 10) Airman and both refuse to follow a law-

ful order. The active duty Airman could be court-martialed for insolence whereas the National Guard Airman could not

be court-martialed (if he was from a state that had not enacted the Model Code.) At most, the offender would face a re-

duction in rank or an administrative separation. The disparate treatment and failure to hold the Title 32 Airman account-

able undermines good order and discipline in the Wing.

The Model Code of Military Justice draws from the UCMJ as its seminal body of law and is an effort to establish consis-

tency in state military justice actions. The Model Code has been adopted, either in its entirety or in substantial part, by

several states. Other states have taken the Model Code under review. Some states have declined adoption.

Addressing a patchwork of existing state military laws, the Model State Code of Military Justice and the Model Manual

for Courts-Martial enhances a governor's control as commander in chief of his or her National Guard when those forces

are used in a non-federal status. When Title 32 forces from several states deploy to a common location such as for relief

operations or special security events, consistent discipline enhances morale and engenders a sense of fairness. More con-

sistency between state military law and the UCMJ will maintain good order and a parity of discipline for Airmen who in-

creasingly serve under Title 10 U.S.C. and Title 32 U.S.C. These Airmen often transition between statuses and serve

side-by-side with their active component counterparts.

**OVERVIEW OF THE MODEL CODE OF MILITARY JUSTICE**

The Model Code of Military Justice focuses on military offenses. It does not supplant civilian criminal courts, although it

provides the possibility for prosecution for state criminal violations when a nexus exists between the offense and the

member's military service. The Model Code provides a right to counsel at courts-martial and non-judicial punishment if

restraints on liberty are contemplated. An accused may always use civilian counsel at his or her own expense, just as un-

der the federal UCMJ. Non-judicial punishment is of two varieties: where a restraint of freedom is contemplated, and

where it is not. In the former case, an accused has a right to counsel and may turn down the punishment to proceed via

court-martial. In the latter, no right to counsel exists, and the accused has no right to turn down the punishment in lieu

of court-martial.

_**Air National Guard Commander's Legal Deskbook**_

333

_**Chapter 8, Criminal Matters**_

_**Section 8-21 Model State Code of Military Justice**_

_**Page 3**_

Under the Model Code, certified military judges will preside over courts-martial proceedings and the Military Rules of

Evidence will apply. If a nexus exists between an offense and the military, the Model Code of Military Justice governs Na-

tional Guard Airmen regardless of their duty status, except when federalized. This jurisdiction extends outside the state.

Punishments under both the Model Code of Military Justice and the UCMJ are similar, with one exception. The Model

Code of Military Justice provides a maximum of 10 years confinement, and has no death penalty.

**Key provisions of the Model Code of Military Justice:**

Follows the UCMJ & MCM format and numbering. Provides for familiarity, ease of use & credibility with Title 10 active duty and the National Guard.

Points to UCMJ & MCM as seminal body of law and resource for military justice. Incorporates provisions of the UCMJ & MCM wherever possible.

The Model Code of Military Justice is sensitive to State Sovereignty and recognizes inherent state v. federal constitutional issues. Allows states to supplement or modify if unique state processes are necessary.

Jurisdiction over Airmen is 24/7. For Military offenses, jurisdiction applies regardless of status, except when federalize;

comparable to the UCMJ. For Non-Military offenses, jurisdiction attaches if a nexus exists.

Extra territorial application analogous to the Military Extraterritorial Jurisdiction Act (MEJA) under 10 U.S.C. §§ 32261 -

3267. Extinguishes jurisdictional gaps.

The Court Martial Convening Authority is the governor, the Adjutant General, or a commanding officer.

The Model Code of Military Justice creates a 3 year statute of limitations for both punitive articles and non-judicial pun-

ishment.

There are no automatic appeals but rather create permissive appeals. The Model Code uses State Appellate Court Proce-

dures.

The Model Code provides for right to counsel in all cases, comparable to the UCMJ except for non-restraint non-judicial

punishment.

**CONCLUSION**

When not in federal service and functioning as the militia of the individual states, the Air National Guard laws and proce-

dures for administering military justice are varied and unique to the individual states. State military justice provide for

differing procedures, penalties, and proscriptions. The Model State Code of Military Justice and accompanying Model

Manual for Courts-Martial fulfills the objective of enhancing the operational capability of the Air National Guard by estab-

lishing common disciplinary standards. The Model Code provides a ready framework for adoption by the states and terri-

tories.

**RELATED TOPICS:**

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**SECTION**

Military Justice Jurisdiction

8-2

Courts-Martial

8-15

_**Air National Guard Commander's Legal Deskbook**_

334

_**Chapter 8, Criminal Matters**_

_**Section 8-22 Sexual Assaults**_

_**Page 1**_

**Sexual Assault Disposition Authority**

**By Major Christopher Kannady, June 2014**

**AUTHORITY:** Uniform Code of Military Justice Articles 31, 80, 120 and 125; Rule of Courts-Martial 306, 401; AFI 51-

504, _Special Victims' Counsel Rules of Practice and Procedure_ ; SecDef Memorandum dated 20 April 2012: " _Withholding Initial Disposition Authority Under the Uniform Code of Military Justice in Certain Sexual Assault Cases."_

**ALLEGED OFFENDER'S COMMANDER**

The commander of the alleged offender in a sexual assault has certain legal obligations to ensure the alleged offender is

properly adjudicated.

Ordinarily, the immediate commander of a person accused/suspected of committing an offense triable by court-martial

initially determines how to dispose of that offense. A superior commander may withhold the authority to dispose of of-

fenses in individual cases. Authority to initially dispose of certain sex offenses is withheld from all commanders who do

not possess at least Special Courts-Martial (SPCM) convening authority and are not O-6 & above. This applies to rape

(Art. 120), sexual assault (Art. 120), forcible sodomy (Art. 125), and attempts to commit these offenses (Art. 80).

Despite the initial disposition being withheld, the immediate commander may take the following actions: impose no con-

tact order or military protective order, order pretrial restraint or confinement, issue a search authorization, initiate administrative discharge proceedings (O-6+ SPCMCA is separation authority).

**ACTIONS BY INITIAL DISPOSITION AUTHORITY (O-6+ SPCMCA, _i.e.,_** **Wing CC)**

The Initial Disposition Authority may take the following actions: inquiry into reported offenses, administrative action

("corrective measures" like LOC/LOA/LOR), nonjudicial punishment, preferral of charges to a court-martial, apprehen-

sion and custody, pretrial restraint (restriction, arrest, pretrial confinement), issuing no contact orders or no action.

**UNRELATED PREVIOUS/SUBSEQUENT MISCONDUCT FROM SUBJECT**

The Withholding Initial Disposition Policy does not preclude subordinate commanders from disposing of offenses com-

mitted by the member not related to sex offense allegation triggering the policy ( _e.g.,_ member under investigation for drug use is later alleged to have raped another person, triggering policy).

**SPECIAL VICTIM'S COUNSEL**

Currently, the Air Force provides legal assistance for "personal civil legal affairs" to eligible beneficiaries who are victims of crime, including sexual assault, consistent with the availability of resources, the expertise within the legal office, and the staff judge advocate's (SJA) ability to manage conflicts of interest. (AFI 51-504, para. 1.4.16).

In order to be eligible for Special Victims' Counsel, a victim of sexual assault must report (in a restricted or unrestricted report) they are a victim of sexual assault under the UCMJ, including rape, sexual assault and other unwanted sexual contact that is aggravated, abusive, or wrongful (including unwanted and inappropriate sexual contact), forcible sodomy, and

attempts to commit these offenses, which are crimes in violation of Articles 120, 125, and 80, respectively (including pre-

vious versions of UCMJ, Article 120).

**GENERAL CHECKLIST FOR SEXUAL ASSAULT DISPOSITION**

Avoid questioning the alleged offender about the sexual assault allegation, to the extent possible, since doing so may

jeopardize the criminal investigation.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 8, Criminal Matters**_

_**Section 8-22 Sexual Assaults**_

_**Page 2**_

Any contact with a member suspected of an offense involves rules and procedures that ensure due process of law and are

unique to the military criminal justice system. Therefore, before questioning or discussing the case with the alleged of-

fender, commanders and other command representatives should first contact the servicing legal office for guidance.

However, if questioning does occur, advise the member suspected of committing an offense under the Uniform Code of

Military Justice (UCMJ) of his or her rights under, UCMJ, Article 31 or the equivalent state code.

Safeguard the alleged offender's rights and preserve the integrity of a full and complete investigation, to include limita-

tions on any formal or informal investigative interviews or inquiries by personnel other than those by personnel with a

legitimate need-to-know.

Strictly limit information pertinent to an investigation to those who have a legitimate need-to-know.

Ensure procedures are in place to inform the alleged offender, as appropriate, about the investigative and legal processes

that may be involved.

Ensure procedures are in place to inform the alleged offender about available counseling support. As appropriate, refer

the alleged offender to available counseling groups, the chaplain, and other services.

With the benefit of the SARC, VA, legal, and/or investigative advice, determine the need for a "no contact" order or mili-

tary protective order.

Monitor the well-being of the alleged offender, particularly for any indications of suicide ideation, and ensure appropriate intervention occurs, if indicated.

_**KWIK-NOTE: Commanders should focus first on the alleged victim to ensure that the appropriate sexual assault response**_

_**coordination takes place.**_

**RELATED TOPICS:**

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**SECTION**

Sexual Assault Response and Prevention (SAPR) Program

23-22

_**Air National Guard Commander's Legal Deskbook**_

336

_**Chapter 8, Criminal Matters**_

_**Section 8-23 State Mandatory Child Abuse Reporting Laws and Chaplain Reporting Requirements**_

_**Page 1**_

**State Mandatory Child Abuse Reporting Laws and**

**Chaplain Reporting Requirements**

**Written by Lieutenant Colonel Beverly G. Schneider and Major Christopher L. Kannady, December 2014**

**AUTHORITY:** State Military Codes; State Mandatory Child Abuse Reporting Laws (varying per state); AFI 52-101, _Planning and Organization_ (5 December 2013); Memorandum on National Guard Chaplain Confidentiality and State Manda-

tory Child Abuse Reporting Laws (4 January 2014). 

## INTRODUCTION

When in a Title 32 status, military personnel are subject to the laws of the jurisdiction where the unit is located. If the

jurisdiction requires mandatory reporting of child abuse, then all personnel, subject to state law exemptions, are re-

quired under law to report. This includes chaplains, unless specifically exempted under state law.

**POLICY**

All 50 U.S. states, the District of Columbia, and the five U.S. territories have mandatory child abuse reporting statutes.

In 40 states and Guam, clergy are included as mandatory reporters. Most states, however, carve out exemptions for

clergy under certain circumstances. Some 17 states provide an exemption only in cases of doctrinally-mandated communi-

cation, while 14 states provide an exemption to the broader category of "spiritual advisor" communications. In nine

states and Guam, there are no mandatory reporting exemptions. Their mandatory reporting statutes specifically abrogate

clergy confidentiality, leaving the door open to criminal prosecution if a cleric fails to report child abuse or molestation.

**ANG - DUTY TO REPORT CHILD ABUSE**

Most of states and U.S. territories have some type of code of military justice and several have adopted the State Model

Code of Military Justice or some variant of it. Although similar to the Uniform Code of Military Justice applicable to Title 10, once adopted by the state, this model code becomes state law. In jurisdictions where reporting requirements exist,

chaplains must determine the applicability of the state mandatory reporting requirements for child abuse to privileged

communications. Some jurisdictions have exemptions for privileged communications to chaplains, while others do not.

Chaplains must seek guidance from their staff judge advocate (SJA) to determine if state law is binding when a conflict

exists between the state military code and the state mandatory child abuse reporting laws. In most cases, the state man-

datory child abuse reporting requirement will have precedence over the state military code.

Chaplains in a Title 10 status will have to determine the reporting requirements in accordance with applicable federal

law and policies of the Department of Defense and the U.S. Air Force. Those chaplains should refer specifically to AFI

52-101 and seek guidance from the U.S. Air Force Chaplain Corps chain of command and its Title 10 SJA.

_**KWIK-NOTE: Chaplains should discuss privileged communications and mandatory reporting requirements for child abuse**_

_**with the SJA to understand the parameters of privilege in their state.**_

**RELATED TOPICS:**

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**SECTION**

Arrest by Civilian Authorities

8-6

Civilian Misconduct on Base

3-7

Investigation by Commanders of Suspected Minor Offenses

16-10

Investigations and Inquiries

16-11

_**Air National Guard Commander's Legal Deskbook**_

337

**Chapter 9, Discrimination Matters**

**Table of Contents**

**Section**

9 - 1 Table of Contents

9 - 2 Affirmative Action

9 - 3 Discrimination Complaints - Military

9 - 4 Discrimination Complaints – Technician

9 - 5 Equal Opportunity and Treatment Program

9 - 6 Nondiscrimination in Federally Assisted Programs

9 - 7 Release of Reports of Investigation in Discrimination Complaints to Management Officials

9 - 8 Sexual Harassment

_**Air National Guard Commander's Legal Deskbook**_

338

_**Chapter 9, Discrimination Matters**_

_**Section 9-2 Affirmative Actions**_

_**Page 1**_

**Affirmative Actions**

**Updated by Colonel Jennifer Conwell, December 2014**

**AUTHORITY:** DoDI 1350.3, _Affirmative Action Planning and Assessment Process_ (29 February 1988); ANGI 36-7, _Air National_ _Guard Military Equal Opportunity Program_ (25 April 2003); NGR 600-22/ANGI 36-3, _National Guard Military Discrimination_ _Complaint System_ (30 March 2001).

**PURPOSE**

The purpose of affirmative actions is to provide a systematic approach to achieve the standard of equal opportunity, treat-

ment, representation, and selection without a reduction in readiness or qualitative standards.

**POLICY**

It is the policy of the Air National Guard to conduct all of its affairs in a manner free from discrimination and to provide equal opportunity and treatment for all members without regard to their color, race, religion, national origin, sex, or age.

**GUIDANCE**

DoDI 1350.3 requires each service to establish an affirmative action program. ANGI 36-7 establishes the MEO program

to improve mission effectiveness by promoting an environment free from personal, social or institutional barriers that

prevent ANG members from rising to the highest level of responsibility possible. Commanders and supervisors shall

only evaluate members on individual merit, fitness and capability. NGR 600-22/ANGI 36-3 establishes procedures for

filing, processing, investigating, settling, and adjudicating discrimination complaints in the ANG.

Should you have any questions, or should any problems arise in this area, contact your staff judge advocate or military

equal opportunity officer.

_**KWIK-NOTE: THINK AFFIRMATIVE ACTION. Let it guide your decisions without reducing your readiness or qualitative**_

_**standards.**_

**RELATED TOPICS:**

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**SECTION**

Equal Opportunity and Treatment Program

9-5

Discrimination Complaints – Military

9-3

Discrimination Complaints – Technician

9-4

Nondiscrimination in Federally Assisted Programs

9-6

_**Air National Guard Commander's Legal Deskbook**_

339

_**Chapter 9, Discrimination Matters**_

_**Section 9-3 Discrimination Complaints-Military**_

_**Page 1**_

**Discrimination Complaints - Military**

**Updated by Colonel Jennifer Conwell, December 2014**

**AUTHORITY:** NGR 600-22/ANGI 36-3, _National Guard Military Discrimination Complaint System_ (30 Mar 01); ANGI 36-7, _Air National Guard Military Equal Opportunity Program_ (25 April 2003); AFI 90-301, _Inspector General Complaints_ (20 August 2013).

**POLICY**

The Military Equal Opportunity (MEO) program is designed to ensure equal opportunity in support of mission readiness

for all Air National Guard personnel. Air National Guard technicians in civilian technician status are covered by a differ-

ent program. _See_ the topic in this _Deskbook_ entitled _Discrimination Complaints – Technician._

It is National Guard policy to conduct its affairs free from wrongful discrimination, and to provide equal opportunity and

treatment regardless of color, national origin, race, religion or gender. This policy also prohibits sexual harassment, and

it prohibits retaliation for participating in the EO complaint process. Commanders are required to take appropriate ac-

tion to eliminate discrimination and its effects. Commanders should also ensure that all personnel are advised of EO poli-

cies and complaint procedures.

_Note: Title VII of the Civil Rights Act, as amended (42 U.S.C. § 2000e-16), the Age Discrimination in Employment Act, as amended (29_

_U.S.C. § 633a), and the Rehabilitation Act, as amended (29 U.S.C. § 791) do not apply to National Guard military personnel. Age and_ _physical/mental disability are not protected classes in the military._

**COMPLAINT PROCEDURE**

Each unit commander must ensure that personnel can present discrimination complaints without fear of retaliation. The

commander is assisted in this responsibility by the MEO staff.

Discrimination complaints that are filed by National Guard members are first handled by an administrative process

through the chain of command. The emphasis in the process is to attempt to resolve complaints at the lowest level, and

to reinforce command responsibility in managing complaints, rendering decisions, and achieving timely and reasonable

resolution of these complaints. All discrimination complaint must be in writing for them to be acted upon, and must

identify the kind, date and act of discrimination, the alleged discriminating official(s) or person(s), and the requested corrective action. Very often, as a practical matter, a complainant will initially make a complaint orally, rather than in writing. Complaints must be filed within 180 days of the alleged action. Commanders should direct complainants to the mili-

tary equal opportunity office for assistance in drafting proper written complaints.

Once a written complaint is made, the official complaint file is established. The written complaint should be referred for

processing to the lowest appropriate command level, using the NGB Form 333.

If the commander is the named discriminating official, the complaint should be filed at the next higher level of the chain

of command. Although an individual may initially submit a complaint at any level, to include the adjutant general or the

National Guard Bureau, such complaints will normally be referred back to the lowest command level for initial inquiry

and attempts at resolution. If a complaint is submitted, the commander can accept the complaint for processing or dis-

miss the complaint for procedural reasons or because it does not fall within the purview of the military discrimination

complaint system. This decision should not be made without consulting with the military equal opportunity officer and

the staff judge advocate. If a complaint or part of a complaint is dismissed, the commander will nevertheless refer the

complainant to the proper source for assistance or take other corrective action. The commander will initiate a fact-

finding inquiry and will attempt to resolve the complaint.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 9, Discrimination Matters**_

_**Section 9-3 Discrimination Complaints-Military**_

_**Page 2**_

This fact-finding inquiry should initially be an inquiry, rather than a full-blown investigation. The commander should not

personally conduct the inquiry, but rather should appoint an Investigating Officer (IO) who is senior in grade or rank to,

and not from the same squadron as the alleged discriminating official(s) or person(s). The selection of the IO should be

based upon the circumstances of the complaint, including the identities of the complainant, the alleged discriminating

officials(s) or person(s), the type of discrimination alleged, and the commander's good judgment. The commander

should direct the inquiry by letter, which must include the following contents:

1. Cite ANGI 36-3 as authority for the inquiry (see para 3-5);

2. Appoint the IO;

3. Indicate the scope and particular nature of the allegations and matters to be inquired into;

4. Direct the IO to make findings of fact, and whether to make conclusions and recommendations;

5. Indicate any special instructions pertinent to the particular inquiry;

6. State that the letter is authority for the IO to interview any witness and have access to all information and documents

the IO deems pertinent to the inquiry; and

7. Direct a time by which the inquiry should be concluded and when the written report of the inquiry must be submitted

to the commander.

Before drafting this letter, the commander should consult with the staff judge advocate. Additionally, after the IO is ap-

pointed but before the IO begins the inquiry, the IO should consult with the staff judge advocate for advice on conduct-

ing the inquiry. Commanders, IOs and staff judge advocates are strongly encouraged to read and use the guidance and

materials contained in the topics in this Deskbook entitled 'Investigation and Inquiries' and 'Sexual Harassment,' if that

is the type of discrimination alleged.

Resolution consists of corrective measures or other actions, which in the commander's judgment satisfy the complainant

and/or correct the deficiency such that the complainant withdraws the complaint. If the matter is resolved, the actions

taken should be documented in the file and the claimant should withdraw the complaint in writing.

If the complaint remains unresolved at the unit level, the complaint will proceed through the chain of command. Each

successive commander will document the specific action taken to review the facts and the attempts to resolve the issues.

If the case proceeds through the chain of command unresolved to the adjutant general, the adjutant general will review

the chain of command inquiry and will direct a formal investigation if an investigation has not been completed by a

lower-level commander, or as necessary to ensure legal sufficiency. The report of investigation must be in the format

specified by the National Guard Bureau and must contain a thorough documentation of relevant testimony, exhibits,

facts, and analyses of the issues. The investigation will result in a recommended finding of whether discrimination oc-

curred and recommended corrective action. In conducting the investigation, the adjutant general may use his or her own

resources or may request the services of a National Guard Bureau investigator.

The adjutant general will review the case, including the report of investigation, and will meet with the complainant to

attempt resolution of the complaint.

An administrative review of each case will be conducted by the National Guard Bureau to ensure compliance with applica-

ble laws and regulations. The review will be conducted by NGB-EO and coordinated with NGB-JA and the Air Director-

ate, NGB. The case file will include a copy of the original complaint, chain of command inquiry reports, report of

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 9, Discrimination Matters**_

_**Section 9-3 Discrimination Complaints-Military**_

_**Page 3**_

investigation, report of resolution achieved, remedial action taken, and other action taken in complaint disposition. ( _See_ ANGI 36-3, Ch. 4). Such a review is a procedural requirement for all cases, whether requested by the complainant.

In the unusual event that an administrative review reveals deficiencies in compliance with laws or regulations, the case

will be returned to the state for appropriate corrective action. NGB issues the final decision letter.

**COMPLAINTS ALLEGING DISCRIMINATION BY A SENIOR OFFICER**

All allegations of discrimination made against a general officer or general officer-selects must be referred to the state IG

or NGB-EO for forwarding and processing through IG channels to SAF/IGS, in accordance with AFI 90-301. Allegations

against colonels or colonel-selects will be processed according to ANGI 36-3 through regular channels, but must be re-

ported through IG channels to SAF/IGS.

**PRACTICAL TIPS**

The discrimination complaint process has been explained to provide commanders a better perspective of their role in the

process and to reinforce the principle that all reasonable attempts should be made to resolve these complaints at the low-

est level. Commanders should not merely document the complaint record and forward it to the next higher commander;

but rather should conduct an investigation to find out what led to the complaint and correct it if possible; or determine

that the complaint is without merit with a sound basis for that determination. In other words, resolve the complaint at

your level if possible. In either case, the commander must advise the complainant of the result of the inquiry or investiga-

tion and should ask the complainant if he or she is satisfied with the commander's proposed resolution. The complain-

ant should answer in writing. By asking if the complainant will be satisfied with the proposed resolution of the com-

plaint, the commander is not seeking the complainant's permission to take the action. However, if the complainant is sat-

isfied, the case will be completed once action is taken and will not go forward.

Ask unsatisfied complainants what they want done. The answer might surprise you or give you some ideas. If you can

resolve the complaint satisfactorily to the complainant and the resolution is consistent with your view of the appropriate

action to the offender, do so; even if the ultimate resolution was not your original proposed solution. The case will then

either be closed, or the record, properly documented showing all reasonable attempts at resolution at that level, will be

sent forward. Successive commanders should return the record to the forwarding commander if they are not satisfied all

reasonable attempts at resolution have been made or if the record is not properly documented.

Because of the requirements for a properly documented record, the potential for further administrative and judicial proc-

essing of the complaint, commanders are well-advised to bring their staff judge advocates into the process soon after a

complaint is received. They should also ensure that their staff judge advocate reviews each record of a discrimination

complaint for legal sufficiency before it is forwarded to the next higher command level.

Consult ANGI 36-3, which provides guidance for the preparation, organization, and submission of military discrimina-

tion complaint case files.

_**KWIK-NOTE: Promptly and thoroughly investigate military discrimination complaints and attempt to resolve them at the**_

_**lowest level.**_

**RELATED TOPICS:**

**SECTION**

Advising Suspects of Their Rights

8-9

Boards – Investigative

16-4

Commander's One-on-One Meeting With Member – Precautions

16-5

Command Influence

2-2

Discrimination Complaints – Technician

9-4

Employee Interrogation

5-3

_**Air National Guard Commander's Legal Deskbook**_

342

_**Chapter 9, Discrimination Matters**_

_**Section 9-4 Discrimination Complaints - Technician**_

_**Page 1**_

**Discrimination Complaints – Technician**

**Updated by Colonel Jennifer Conwell, December 2014**

**AUTHORITY:** Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-16); Age Discrimination in Employment Act

(29 U.S.C. § 633a); Rehabilitation Act (29 U.S.C. § 791); NGR (AR) 690-600/NGR (AF) 40-1614, _National Guard Civilian_

_Discrimination Complaint System_ (15 Mar 93), Vols. I and II. 

## INTRODUCTION

It is National Guard policy to provide equal employment opportunity for National Guard technicians and applicants for

technician employment. This means that all employees and applicants for employment must be treated fairly, equitably

and in a non-discriminatory manner. All managers and supervisors must act promptly to prevent or correct situations

that may cause legitimate complaints of discrimination.

Allegations of discrimination by federal technicians may be pursued through NGR (AF) 40-1614 or raised under negoti-

ated grievance procedures of the applicable collective bargaining agreement. In some instances, discrimination allega-

tions may also be raised under negotiated grievance procedures or under appellate provisions of the Merit Systems Pro-

tection Board rather than under NGR (AF) 40-1614. Volume II of that regulation states under what circumstances these

other procedures are available and how an individual chooses the procedure.

**LAWS PROHIBITING DISCRIMINATION**

Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000(e)-16) forbids employment discrimination on the basis of

race, color, religion, national origin and sex.

The Rehabilitation Act of 1973 (29 U.S.C. § 791) prohibits discrimination by the federal government in hiring, promo-

tion and other employment of handicapped individuals. The Act requires federal agencies to make reasonable accommo-

dations in employment practices unless it would impose an undue hardship on the agency's programs. This law does not

apply to military members.

The Age Discrimination in Employment Act Amendments (29 U.S.C. § 633a) holds that all personnel actions affecting

applicants or employees who are at least 40 years of age will be made free from discrimination based on age. This law

does not apply to military members.

Enforcement authority for the federal government's program rests with the Equal Employment Opportunity Commission

(EEOC). The EEOCs administrative regulations for complaint processing may be found at 29 C.F.R. Part 1614, §

1614.103 et seq. Air National Guard procedures are contained in NGR (AF) 40-1614. Administrative regulations man-

date that the complainant exhaust administrative complaint procedures with the Agency (Air National Guard) before fil-

ing suit in a United States District Court.

Complaints may either be individual (the most common form) or class, _i.e.,_ one that alleges that an Air National Guard personnel policy or practice discriminates against a class of employees. The most common reasons for individual complaints in the Air National Guard are: disciplinary actions; non-selection for employment or promotion; employee ap-

praisal; sexual harassment; non-selection for training or an award; and reprisal for filing a previous EEO complaint.

**INDIVIDUAL COMPLAINT PROCESS**

Technicians or applicants for technician employment who believe they have been discriminated against because of race,

color, religion, gender (including sexual harassment), national origin, age or physical or mental handicap, or reprisal, in

an employment matter subject to the control of the National Guard, may file an individual discrimination complaint.

_**Air National Guard Commander's Legal Deskbook**_

343

_**Chapter 9, Discrimination Matters**_

_**Section 9-4 Discrimination Complaints - Technician**_

_**Page 2**_

An organization or a representative designated in writing by the employee can also file a complaint.

To make a discrimination complaint, the complainant must first make an informal complaint to an EEO counselor or a

state equal employment manager (SEEM). The complainant must make the complaint within 45 days of the date that the

complainant knew or reasonably should have known of the alleged offense.

Whenever possible, complaints should be resolved before reaching the formal stage. However, informal resolution of a

complaint can be pursued at any stage of the complaint processing. A settlement and/or withdrawal of the formal com-

plaint can occur at any time. A commander should consult with the SJA prior to any settlement.

The EEO counselor may offer alternative dispute resolution (ADR). If ADR is chosen, the process of EEO counseling is

halted and ADR is attempted. If ADR is not chosen or fails, the EEO counselor conducts an inquiry of the informal com-

plaint, defines the issues, interviews witnesses, attempts resolutions between the parties, and prepares a report. Counsel-

ing must be completed within 30 days, unless the complainant agrees to an extension. An EEO counselor advises com-

plainants and management officials and is NOT a "representative" of the complainant. The counselor interviews the com-

plainant after the inquiry of the informal complaint is complete. If the complainant is not satisfied with the representa-

tive's proposed resolution, the complainant may file a formal complaint. Any formal complaint must be in writing and

must be filed within 15 days after the formal interview. The formal complaint should be filed with the SEEM but can be

also filed with the adjutant general (TAG). The adjutant general, or designee, then has five calendar days to accept or dis-

miss the complaint on procedural grounds. NGB-EO reviews acceptances/dismissals, and it reserves the right to over-

turn the adjutant general's decision to dismiss a formal complaint. Accepted complaints must be investigated within 180

days after the complaint is filed. A copy of the report of investigation must be provided to the complainant.

After the TAG accepts the formal complaint, the TAG requests an investigator from NGB to review and investigate the

complaint. After the investigation is complete, the investigator prepares a report that analyzes the evidence in light of

applicable law. The report is sent to NGB.

NGB then sends the report back to the adjutant general and to the complainant. The adjutant general establishes an ap-

pointment to meet with the complainant and discuss the report. The purpose of the meeting is to attempt to settle the

matter. Within 15 days of the date the adjutant general gets the report, the complaint must be resolved or the adjutant

general, or designee, must issue a proposed disposition of the complaint to NGB-EO.

After the proposed disposition is issued, the complainant can ask for an immediate final decision by NGB or a hearing

before an Equal Employment Opportunity Commission (EEOC) administrative law judge. After the hearing, the judge

sends the decision to NGB-EO. NGB-EO adopts the decision or appeals to EEOC. The complainant can then appeal the

judge's decision to the EEOC or file a civil action in federal court.

If discrimination is found to have occurred, the complainant may be entitled to monetary damages including back pay,

front pay, attorney fees, costs, compensatory damages (pain and suffering) and punitive damages. Additionally or alterna-

tively, a complainant may be awarded other forms of relief such as retroactive personnel actions, expungement or correc-

tion of records, or injunctive relief.

Disciplinary action taken against an offender is not a remedy that may be personally demanded by a complainant and

therefore is not made part of an award or settlement. A separate inquiry is made into allegations of wrongdoing and the

commander determines the appropriate action or punishment based on that inquiry.

There are many time limits that must be met by the complainant and the National Guard in processing an EEO com-

plaint. Close attention is required to ensure that none of them are missed.

Once a formal complaint has been filed, never attempt to negotiate a settlement or otherwise dispose of the matter with-

out first checking with the HRO, SJA and EEO Counselor/SEEM.

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_**Chapter 9, Discrimination Matters**_

_**Section 9-4 Discrimination Complaints - Technician**_

_**Page 3**_

**CLASS ACTION COMPLAINTS**

A class action provides a means by which one or more persons may sue or be sued as representatives of the class without

needing to join every member of the class. These complaints are used when a group of persons have the same concerns.

Whereas most individual complaints involve disparate treatment ( _i.e.,_ the employer simply treats some people less favorably than others because of one of the protected bases - race, color, religion, sex, age, handicap, or national origin), most class action EEO complaints involve allegations of disparate impact.

A disparate impact case is one in which discrimination is alleged to have resulted by operation of the system. Complain-

ants allege that a facially neutral test or employment criterion disproportionately disqualifies a protected class from em-

ployment promotion or some other employment benefit, and is not justified by a business necessity. The state must desig-

nate one counselor to handle class complaints in this area.

Because these cases are often a direct attack on the validity of core Air National Guard civilian personnel programs ( _i.e.,_ hiring, promotions, awards, discipline, appraisals, training, etc.), they potentially may impact the Air National Guard as a whole.

Similar to individual complaints, class action complaints must be initiated with an informal complaint within 45 days of

the alleged discriminatory act by contacting the EEO counselor or SEEM. Class action complaints have high visibility so

notify NGB-HR through your adjutant general of the action. Under no circumstances should the installation IG or instal-

lation commander conduct an independent investigation into the complaint.

Class action complaints follow a similar timeline described above. Work closely with the SEEM to ensure all deadlines

are met.

**CONCLUSION**

Because of the complicated and multi-level processes for technician discrimination complaints, commanders should in-

volve their staff judge advocates and full-time state judge advocates as early as possible upon receipt of a complaint.

_**KWIK-NOTE: Always try to resolve technician discrimination complaints at the lowest possible level.**_

**RELATED TOPICS:**

**SECTION**

Advising Suspects of Their Rights

8-9

Commander's One-on-One Meeting With Member – Precautions

16-5

Discrimination Complaints – Military

9-3

Employee Interrogation

5-3

Equal Opportunity and Treatment Program

9-5

Evidence- Differing Standards and Burdens of Proof

8-4

Investigations and Inquiries

16-11

Nondiscrimination in Federally Assisted Programs

9-6

Personal Liability of Federal and State Officials

18-9

Release of Reports of Investigation in Discrimination Complaints to Management Officials

9-7

Sexual Harassment

9-8

_**Air National Guard Commander's Legal Deskbook**_

345

_**Chapter 9, Discrimination Matters**_

_**Section 9-5 Equal Opportunity and Treatment Program**_

_**Page 1**_

**Equal Opportunity and Treatment Program**

**Updated by Colonel Jennifer Conwell, December 2014**

**AUTHORITY:** NGR 600-22/ANGI 36-3, _National Guard Military Discrimination Complaint System_ (30 Mar 01); NGR (AR) 690-600/NGR (AF) 40-1614, _National Guard Civilian Discrimination Complaint System_ (15 Mar 93), Vols. I and II; AFI 36-2706, _Equal Opportunity Program Military and Civilian_ (5 October 2010, IC1 5 October 2011) (not applicable to Title 32 - for reference only); ANGI 36-7, _Air National Guard Military Equal Opportunity Program_ (25 April 2003).

**STATUTORY BASIS**

The Civil Rights Act of 1964 (42 U.S.C. § 2000(a) _et seq_.) is the most important single source of anti-discrimination law in this country. In 1972, Congress passed the Equal Employment Opportunity Act of 1972 (42 U.S.C. § 2000e-16). Although this statute only applies to federal civilian employees and not to military members, nevertheless it is the policy of the Air National Guard to conduct all of its affairs in a manner free from arbitrary discrimination and to provide equal

opportunity and treatment for all members irrespective of their color, race, religion, national origin, sex, or physical

handicap.

"Arbitrary discrimination" is defined as any action that unlawfully or unjustly results in unequal treatment based on the

criteria enumerated above and for which distinctions are not supported by legal or rational considerations. It includes:

1. Insults, printed material, visual material, signs, symbols, posters, or insignia which infer negative statements pertain-

ing to a protected status ( _e.g.,_ race, religion);

2. Personal discrimination to bar or deprive a person of a right or benefit;

3. Sexual harassment; or

4. Institutional practices which deprive a person or group of a right or benefit.

**ANG RESPONSIBILITIES**

ANGI 36-7 and ANGI 36-3 implement the Civil Rights Act of 1964 in the Air National Guard through the Military Equal

Opportunity and Treatment (MEO) Program. NGR 600-23/ANGR 30-12 ensures federally assisted programs are non-

discriminatory. NGR (AR) 690-600/NGR (AF) 40-1614 implements Title VII of the Civil Rights Act of 1964 and the Age

Discrimination in Employment Act and other federal regulations and directives that prohibit unlawful discrimination.

The purpose of the MEO program is to insure that individuals receive equal consideration and treatment based on merit,

achievement and ability.

Members should be advised they have free access to the office of the staff judge advocate, the civilian personnel office

(equal opportunity and treatment officer), and other personnel of the military equal opportunity office when they feel

they have been subjected to discrimination.

**COMMANDER'S RESPONSIBILITIES**

**Freedom to Complain**

Unit commanders must ensure that all members are able to present complaints without fear of retaliation, that they are

aware of the channels and procedures for filing such complaints, and that they act at once to determine if an allegation of

_**Air National Guard Commander's Legal Deskbook**_

346

_**Chapter 9, Discrimination Matters**_

_**Section 9-5 Equal Opportunity and Treatment Program**_

_**Page 2**_

discrimination is valid. A sample briefing in letter format regarding complaint procedures is provided as Attachment 1 to

this topic. Additionally, commanders are required to prominently display complaint procedures in writing. NGB Poster

(Form No. 94-170), _Know the Facts about Filing a Complaint of Discrimination_ , is available through NG publications channels.

Commanders must also take appropriate disciplinary or administrative action against the offender to eliminate or neutral-

ize discrimination and its effects.

**Process and Attempt to Resolve Complaints**

You, the commander, have the primary responsibility for resolving complaints with the assistance of the state equal em-

ployment manager (SEEM), human resource officer (HRO), military equal opportunity (MEO) office, chaplain, staff

judge advocate, inspector general, or others, as appropriate. Liaison should be established with the equal opportunity

and treatment officer in an attempt to resolve problems at the lowest possible level. If an individual files a formal com-

plaint with the military equal opportunity office, commanders must be informed immediately. The MEO office conducts

an informal complaint "clarification" to determine the basic facts. After coordination with the staff judge advocate, the

MEO office will report the results to the commander along with any recommendations for corrective action.

You will find that the establishment of an "open door policy" will help resolve isolated problems before they become

widespread. A sample briefing on complaint procedures in letter format is provided as Attachment 2 to this topic.

You should also ensure that the information contained in NGR (AF) 40-1614, Vol. II, paragraph 2-6, is regularly publi-

cized and permanently posted on bulletin boards for easy access to all affected personnel.

The use and availability of the various methods and agencies to attempt to resolve complaints at the lowest level in no

way precludes a member from filing a formal complaint with the commander of the unit in which the alleged act of dis-

crimination occurred and at any successive organizational level.

If you have any questions or problems in this area, contact your staff judge advocate.

_**KWIK-NOTE: MEO is everyone's business. The commander sets the tone and the unit will follow it.**_

**RELATED TOPICS:**

**SECTION**

Affirmative Actions

9-2

Discrimination Complaints – Military

9-3

Discrimination Complaints – Technician

9-4

Freedom to Complain – Military Members

16-8

Homosexuality

1-18

Investigations and Inquiries

16-11

Nondiscrimination in Federally Assisted Programs

9-6

Sexual Harassment

9-8

Whistleblower Protection Act

5-9

_**Air National Guard Commander's Legal Deskbook**_

347

_**Chapter 9, Discrimination Matters**_

_**Section 9-5 Equal Opportunity and Treatment Program**_

_**Page 3**_

_Attachment 1_

_Page 1 of 2_

(Unit Letterhead)

MEMORANDUM FOR ALL PERSONNEL

(Date)

Subject: Equal Opportunity and Treatment Briefing

1. It is the policy of the (Unit Name) to conduct all of its affairs in a manner that is free from discrimination and to provide equal opportunity and treatment for all members irrespective of their color, race, religion, national origin, or sex,

consistent with requirements for physical capabilities. Discrimination, in the conduct of official business, by act or inference, against anyone on or off base will not be tolerated. The principal of equal opportunity and treatment must perme-

ate every organization, function, and activity of the (Unit Name).

2. The (Unit Name) Affirmative Actions Plan requires positive actions to ensure fair and just treatment of all personnel.

It supports achievement of Department of Defense Human Goals by making equal opportunity and treatment a working

reality in all aspects of Air National Guard life.

3. All members of the (Unit Name) are encouraged to seek further training and development in order to qualify for pro-

motions and advancements, which will be based on qualifications and demonstrated abilities. Commanders and supervi-

sors must meet their responsibilities by placing special emphasis on the recruitment of minority and female members

and the development of upward mobility opportunities.

4. I encourage all personnel who believe that they have a complaint of discrimination based on color, race, religion, natu-

ral origin or sex to contact the Military Equal Opportunity officer, (Rank and Name) or myself.

5. Achievement of equal opportunity and treatment and attainment of the objectives of the Affirmative Actions Plan will

require cooperation and compliance by all members. I expect all commanders and supervisors to be totally committed to

eliminating all forms of discrimination and to taking positive actions toward achieving equal opportunity and treatment

objectives.

6. Please also review the attached Provisions of Titles II, III & IV of the Civil Rights Act of 1964 which become applicable upon mobilization of the Air National Guard.

COMMANDER'S SIGNATURE BLOCK

****

_**Air National Guard Commander's Legal Deskbook**_

348

_**Chapter 9, Discrimination Matters**_

_**Section 9-5 Equal Opportunity and Treatment Program**_

_**Page 4**_

_Attachment 1_

_Page 2 of 2_

**1964 CIVIL RIGHTS ACT - TITLE II, III & IV PROVISIONS**

A. Title II: Public Accommodations. These are privately owned establishments that cater to the general public. Discrimi-

nation or segregation based on race, color, religion or national origin is banned in:

1. Inns, hotels, motels and other places providing lodgings to transients (except owner-occupied premises with fewer

than six rooms for rent);

2. Restaurants, cafeterias, lunchrooms, lunch counters, soda fountains or other facilities principally engaged in selling

food for consumption on the premises;

3. Gasoline stations;

4. Motion picture houses, theaters, concert halls, sports arenas, stadiums or other places of exhibition or

entertainment;

5. Any establishment located on the premises of any of the foregoing and holding itself out as serving the patrons

thereof; and

6. Coverage of establishments listed in 2, 3, and 4 depends upon whether:

a. They serve or offer to serve interstate travelers;

b. A substantial portion of the products they sell or exhibit has crossed any state line;

c. Discrimination or segregation by the establishment purports to be required by any law, statute, ordinance, regu-

lation, rule or order of a state or any agency or political subdivision thereof. If the establishment is covered, the

Civil Rights Act protects all prospective patrons, not merely those who are interstate travelers; and

d. The ban on discrimination in public accommodations is enforceable by an injunction proceeding brought either

by the persons discriminated against or by the U.S. Attorney General.

B. Title III: Public or Government Facilities, other than Schools. Discrimination in these has long since been ruled uncon-

stitutional and so this title is concerned primarily with specified enforcement procedures. It authorized the U.S. Attorney

General to bring suit to end the prohibited discrimination or segregation in some cases, after receiving a complaint from

an individual. Individuals remain free to institute suits in their own behalf.

C. Title IV: Public Education. The U.S. Commissioner of Education is charged with making appropriate surveys and is

authorized, upon request from a school board or other local agency, to give technical and financial assistance in school

desegregation programs. The U.S. Attorney General is authorized to bring suit to end the prohibited school discrimina-

tion or segregation upon complaint by an individual. Here, too, individuals remain free to institute suits in their own be-

half.

_**Air National Guard Commander's Legal Deskbook**_

349

_**Chapter 9, Discrimination Matters**_

_**Section 9-5 Equal Opportunity and Treatment Program**_

_**Page 5**_

_Attachment 2_

(Unit Letterhead)

MEMORANDUM FOR ALL PERSONNEL

(Date)

From: CC

Subject: Briefing on Complaint Procedure

1. The (Unit Name), operates on a nondiscriminatory basis in compliance with Title VI of the Civil Rights Act of 1964.

All persons, or their authorized representatives, may file a written complaint with the Commander, (Unit Name), the Ad-

jutant General of (State), or the Chief, National Guard Bureau, or with all three of these officials, if they believe that discrimination on the basis of race, color or national origin is being practiced with any Air National Guard program of the

(Unit Name) that is subject to the provisions of Title VI. ANGR 30-12, Nondiscrimination in Federally Assisted Pro-

grams, assigns responsibility and prescribes procedures to administer Title VI of the Civil Rights Act of 1964 and imple-

ments DoD Directive 5500.11, Nondiscrimination in Federally Assisted Programs. ANGR 30-12 applies to all federally

assisted activities of the Air National Guard as defined in sections 101(4) and 101(6) of Title 32, United States Code.

ANGI 36-3 provides that complaints based on sex or religion should also be accepted and they should be processed as

outlined in the regulation.

2. Discrimination complaints on military equal opportunity and treatment matters involving personnel or facilities of the

(Unit Name) should be addressed to the Commander, (Unit Name) and filed with the Military Equal Opportunity officer,

(Rank and Name) who is located in (Building Number, Building Name, Room Number, Floor). Complaints must be filed

within 180 days from the date of the alleged discrimination.

3. Any person filing a complaint at the Wing or Group level should make an attempt to resolve the problem on an infor-

mal basis through discussion at Wing or Group level. The Wing or Group Commander will forward all complaints to the

Adjutant General of (State) with comments and an explanation of what action was taken to resolve the matter. If the

problem was not resolved at Wing or Group level, the complainant should attempt to resolve it on an informal basis at

the state's Adjutant General-level. If the problem is still not resolved at that level, the complaint will be forwarded to the National Guard Bureau for investigation and final disposition.

4. Complaints filed initially with the Chief, National Guard Bureau or the (State) Adjutant General are referred down the

chain of command for possible resolution at the Wing/Group level, after which they are then processed as outlined in

paragraph 3 above.

COMMANDER'S SIGNATURE BLOCK

_**Air National Guard Commander's Legal Deskbook**_

350

_**Chapter 9, Discrimination Matters**_

_**Section 9-6 Nondiscrimination in Federally Assisted Programs**_

_**Page 1**_

**Nondiscrimination in Federally Assisted Programs**

**Updated by Colonel Jennifer Conwell, December 2014**

**AUTHORITY:** DoDD 5500.11, _Nondiscrimination in Federally Assisted Programs_ (27 May 1971, IC1 15 August 1972); 48

C.F.R. 22.800, _et seq._ , _Application of Labor Laws to Government Acquisitions – Equal Employment Opportunity_ ; NGR 600-23/

ANGR 30-12, _Nondiscrimination in Federally Assisted Programs_ (30 Dec 74); Title V of the Civil Rights Act of 1964.

**POLICY**

Under federal law, no person may be excluded from participation in, denied the benefits of, or subjected to discrimina-

tion on the basis of race, color, national origin, or handicap under any program or activity receiving federal financial assistance. This assistance can take the form of grants, loans, contracts (other than a contract of insurance or guaranty) or

other arrangements by which the federal government provides funds, services performed by federal personnel, or real

property interests.

**COMMANDER'S ACTION**

Discrimination complaints should be filed not later than 180 days from the date of the alleged discrimination. When a

commander learns of discrimination in federally assisted programs, either by complaint or otherwise, the commander

must send a letter detailing the wrongful activity through military channels to the adjutant general. Successive command-

ers attach their comments and explain what action was taken to resolve the matter. If the matter is not resolved to the

satisfaction of the complainant at the state level, it is forwarded to NGB.

The National Guard Bureau will investigate the allegations. When the investigation indicates that discrimination is occur-

ring, the National Guard Bureau will attempt to resolve the problem informally. Where informal resolution is not possi-

ble, several additional steps are taken, including a hearing on the allegations. Ultimately, if the problem is not resolved, the federal assistance will be terminated or suspended.

When a discrimination complaint is received regarding a government procurement contract, the contracting officer imme-

diately refers it to the Office of Federal Contract Compliance Programs (OFCCP) regional office. The contracting officer

must notify the complainant of the referral. The OFCCP may process the complaint or it may refer it to the Equal Em-

ployment Opportunity Commission. Attempts will be made to settle the complaint informally, but when this fails, formal

administrative or judicial enforcement proceedings will be used.

Upon the commander learning of the discrimination, the staff judge advocate should immediately be contacted and be-

come involved in this process.

_**KWIK-NOTE: Promptly report instances of discrimination through channels to your adjutant general. Discrimination in fed-**_

_**eral financial assistance programs must be investigated and attempted to be resolved at the lowest possible level.**_

**RELATED TOPICS:**

**SECTION**

Discrimination Complaints – Military

9-3

Discrimination Complaints – Technician

9-4

_****_

_**Air National Guard Commander's Legal Deskbook**_

351

_**Chapter 9, Discrimination Matters**_

_**Section 9-7 Release of Reports of Investigation in Discrimination Complaints to Management Officials**_

_**Page 1**_

**Release of Reports of Investigation in**

**Discrimination Complaints to Management Officials**

**Updated by Colonel Jennifer Conwell, December 2014**

**AUTHORITY:** NGR (AR) 690-600/NGR (AF) 40-1614, _National Guard Civilian Discrimination Complaint System_ (15 Mar 93) Vols. I and II; ANGI 36-7, _Air National Guard Military Equal Opportunity Program_ (25 April 2003); DoDD 5400.7, _DoD_

_Freedom of Information Act (FOIA) Program_ (2 January 2008); DoD 5400.7- R_AFMAN 33-302 F _reedom of Information Act Program_ (21 October 2012, IC1, 24 April 2012); ANGI 36-3, _National Guard Military Discrimination Complaint System_ (30 Mar 01); AFI 33-332, _The Air Force Privacy and Civil Liberties Program_ (5 June 2013). 

## INTRODUCTION

This topic applies to both technician and military member discrimination complaints.

Reports of investigation (ROI) are considered agency records. The reports are governed by the Privacy Act (PA) and the

Freedom of Information Act (FOIA). These laws limit the release of reports of investigation.

**RESTRICTIONS ON RELEASE**

Because of the restrictions on releasing reports of investigation, few individuals are entitled to see the unsanitized ver-

sion of the report. Individual complainants and their representatives can view the report. National Guard officials who,

as a part of their assigned duties, are directly involved in processing discrimination complaints or making decisions on

them can also review them. The reports cannot be released to other management officials. This includes those who are

identified as alleged discriminating officials or responding management officials. This applies whether or not disciplinary

action is taken against an alleged offender. The principle governing the release of reports of investigation is that the individuals must need the information to perform their duties.

Reports of investigation can be requested by anyone under the FOIA. An ROI request by individuals not directly involved

in the investigation as described above ( _e.g._ , the alleged discriminating official) is treated as a FOIA request. FOIA requests for reports of investigation should immediately be referred to NGB-AD. NGB-AD will request a copy of the report

from NGB-EO which, in turn, requests a copy of the report from the state. NGB-AD will determine what parts of the re-

port can be released. When a request for a report is made, the report will be released after the case is no longer under

investigation, but only after all protected information is removed. Information in ROIs usually not be released includes

names and identities of witnesses; names of individuals listed in the file; home addresses; social security numbers, inves-

tigator's findings, discussions, and recommendations; and certain information about the complainant.

These limitations upon the release of reports of investigation must be followed strictly. The wrongful disclosure of pro-

tected Privacy Act information could subject the National Guard to a lawsuit for damages, and it could result in a crimi-

nal prosecution of the offending official. For further information on this subject, contact your staff judge advocate.

_**KWIK-NOTE: Reports of Investigation may only be released to certain officials with the need to know based upon their as-**_

_**signed duties.**_

**RELATED TOPICS:**

**SECTION**

Discrimination Complaints – Military Discrimination

9-3

Complaints – Technician

9-4

Privacy Act

14-12

Freedom of Information Act

14-11

_**Air National Guard Commander's Legal Deskbook**_

352

_**Chapter 9, Discrimination Matters**_

_**Section 9-8 Sexual Harassment**_

_**Page 1**_

**Sexual Harassment**

**Updated by Colonel Jennifer Conwell, December 2014**

**AUTHORITY:** NGR 600-22/ANGI 36-3, _National Guard Military Discrimination Complaint System_ (30 March 2001); ANGI 36-7, _Air National Guard Military Equal Opportunity Program_ (25 April 2003); AFPD 36-27, _Equal Opportunity_ (9 April 2012); Title VII of the Civil Rights Act, 42 U.S.C. 2000e-16 and applicable state law (for civilian employees only). 

## INTRODUCTION

Sexual harassment, a form of illegal sex discrimination, is a real problem in the private and public sector workplaces.

The Air National Guard, United States Air Force, federal Equal Employment Opportunity Commission (EEOC), courts

and most states prohibit, regulate, adjudicate and punish acts constituting sexual harassment. Employers, employees,

and governmental agencies and departments can be found legally liable for acts of sexual harassment in the workplace.

Commanders and Guard units can also be subject to suit from civilian employees. While commanders and supervisors

will not be held liable for suits brought by uniformed Guard members, a well-founded complaint can seriously impair a

commander's career. Whether well-founded or not, an employee (male or female, military or civilian) claiming to be the

victim of sexual harassment may file a complaint. The complaint must be investigated and you will expend a lot of

money and valuable time investigating and, if the complaint progresses to a court case, defending these complaints.

The bottom line: Sexual harassment will not be tolerated in any form, and is a serious legal matter.

The purposes of this topic are to help you understand what sexual harassment is, explain your responsibilities in this

area as a commander, and provide guidance for handling a sexual harassment complaint.

**NATIONAL GUARD POLICY**

The fair, equitable, and non-discriminatory treatment of all members and employees of the Guard improves morale and

productivity, fosters unit cohesion and readiness, and increases the combat effectiveness of the Guard. The policy of the

National Guard is to provide equal opportunity for Guard military personnel or applicants for membership in the Guard.

One of the ways we can work toward providing equal opportunity is to ensure our members and employees are not sub-

jected to discrimination on gender or reprisal for having participated in a protected equal opportunity activity.

Sexual harassment is a form of gender discrimination and will not be tolerated. Sanctions outlined in state Codes of Mili-

tary Justice, and/or in military or civilian personnel regulations will be applied when it is substantiated that an individual has engaged in sexual harassment or other forms of illegal discrimination. Such instances will be documented in the individual's official personnel file and reflected on evaluations or appraisals, as appropriate.

The chain of command will be the primary channel for resolving discrimination complaints. Individuals will be encour-

aged to use their command channel for redress of grievances. This provides the commander an opportunity to assist the

complainant, inquire into the issues and allegations, take corrective active, and to attempt to resolve the complaint,

where possible. (ANGI 36-3, para. 1-6.)

**DEFINITION OF SEXUAL HARASSMENT**

ANGI 36-3 defines sexual harassment as follows:

A form of gender discrimination that involves unwelcome sexual advances, request for sexual favors, and other

verbal or physical conduct of a sexual nature when:

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1. Submission to or rejection of such conduct is made either explicitly or implicitly a term or condition of a person's job, pay, or career; or

2. Submission to or rejection of such conduct by a person is used as a basis for career or employment decisions affecting

that person; or

3. Such conduct interferes with an individual's performance or creates an intimidating, hostile, or offensive environment.

Any person in a supervisory or command position who uses or condones implicit or explicit sexual behavior to control,

influence, or affect the career, pay, or job of a military member or civilian employee is engaging in sexual harassment.

Similarly, any military member or civilian employee who makes deliberate or repeated unwelcome verbal comments, ges-

tures, or physical contact of a sexual nature is also engaging in sexual harassment.

A few comments about this definition: First, this definition emphasizes that workplace conduct, to be actionable as "abu-

sive work environment" harassment, need not result in concrete psychological harm to the victim, but rather need only

be so severe or pervasive that a reasonable person would perceive, and the victim does perceive, the work environment

as hostile or offensive. Second, the alleged conduct must be unwelcome. Consensual sexual banter between two people is

not sexual harassment. You may still discipline the individuals for inappropriate activity in the workplace, but the activity is not sexual harassment. Third, even if the conduct is consensual, if a supervisor then uses or condones that behavior to

affect a member or employee's work environment – either positively OR negatively, then that supervisor is engaging in

sexual harassment. Fourth, a single deliberate instance of physical contact of a sexual nature that is unwelcome is sexual

harassment.

**AIR NATIONAL GUARD AND STATE LIABILITY**

Dual status technicians, in their civilian capacity and civilian employees of the Guard may bring suit against the em-

ployee, commander, and the unit for sexual harassment. AGR and drill status members are not entitled to do so because

of their military status.

Regardless, anyone can file a lawsuit. Whether a court in your jurisdiction will allow it to proceed or not, you will have

to expend considerable time and money responding to it.

Where it is a civilian employee who maintains a lawsuit, the Guard and the state will generally be held strictly liable for

sexual harassment engaged in by individuals with supervisory authority over the employee, if the harassment results in a

tangible job action against the employee. Strict liability means there is liability whether a higher level supervisor knew

about it. Where no tangible job action has been taken, the Guard and the State may avoid liability in cases of supervisory

harassment if the employee is able to prove that: (1) the Guard exercised reasonable care to prevent and promptly cor-

rect sexually harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or correc-

tive opportunities provided by the Guard or to avoid harm otherwise. In hostile environment cases involving only co-

workers, the Guard and the State may be held liable if a supervisor or management employee either knew, or should have

known of the conduct, and failed to take immediate and appropriate corrective action.

**COMMANDER RESPONSIBILITIES**

**** As implied just above, there are a few things commanders must do, not only to protect themselves from liability, but also to comply with current Air Force and Guard instructions (ANGI 36-3, para. 1-4f).

1. You must ensure that the policies described above are adhered to in your organization.

2. You must act promptly to prevent or correct situations that may give rise to complaints of discrimination.

3. You must clearly articulate your unit's prohibition of sexual harassment and that you will strictly enforce the sexual

harassment policy.

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4. Ensure military members and civilian personnel are fully aware of the procedures for obtaining redress of complaints,

including those against members of the chain of command. Procedures will be in writing – such as in policy letters prom-

ulgated yearly – and prominently displayed where all unit members have access to them. In the past, this often has

meant the ubiquitous bulletin board everyone passes but few bother to read. You should still post the policy letter there,

but also make it available on your intranet site and through regular, periodic announcements during commander's calls.

5. You must conduct an inquiry whenever an allegation of discrimination is brought to your attention.

6. You will inform individuals who are named by a complainant as responsible for discrimination of the basis and issues

of the complaint.

7. You will ensure that the command climate does not encourage or condone reprisals against individuals who exercise

their rights to file a complaint. To assess your unit's climate on this subject in particular and sexual harassment in gen-

eral, the MEO office can assist you. In fact, the MEO office must conduct Unit Climate Assessments (UCAs) on units

with more than 50 military personnel assigned within six months of a commander assuming command and every two

years thereafter. The MEO office will also conduct UCAs upon the request of the commander.

**"THE PROCESS"**

A typical military sexual harassment complaint might unfold as follows:

A military member says something off-color or, perhaps, touches someone in a sexual manner and that remark or contact

is unwelcome. The aggrieved individual might complain to a co-worker, supervisor, or immediate commander. If the ag-

grieved individual is a technician and believe they have been discriminated against while they were in that status, he or

she must process their complaint under NGR (AR) 690-600 [NGR (AF) 40-1614], Vol. 1, _The National Guard Civilian Dis-_

_crimination Complaint System_ ; _see also_ Section 9-4, _Discrimination Complaints - Technician._ For a civilian employee complaint, contact your civilian EEO office for assistance.

The complaint works its way up to you. What do you do?

First, and foremost, contact your JAG! Your JAG will assist you in evaluating the complaint and explaining some of the

necessary first steps. In general, those first steps will be along the following lines:

If you are the first-level commander of the aggrieved, you should sit down with the complainant along with the person's

first sergeant or supervisor. You should explain to the person that she has a right to file a complaint. You should also ex-

plain that she has the right to discuss her complaint with and seek the assistance of the MEO office. If she does want to

file a complaint, the MEO office will assist her. Tell her not to contact the alleged offender. You will tell her, briefly, the time frames outlined below within which you expect to process her complaint.

Afterwards, you will need to bring the alleged offender into your office. You should also have a third person in your of-

fice. Tell him that a complaint has been lodged, the basis and the issues of the complaint. If he is the complainant's supervisor, tell him that, until otherwise directed, he will be given other responsibilities commensurate with his rank where

he is not supervising the aggrieved. Whether a supervisor or not, you will direct that person, again until otherwise di-

rected, not to contact the aggrieved, whether personally, through friends, e-mail, phone, or in any other way. Do not al-

low them to speak or defend themselves. Tell them they will have an opportunity to do so shortly. If they do say some-

thing, even despite your admonition not to, record the statement in a memo for record (along with all actions you take).

One of the areas you should be knowledgeable about is the process involved once a complaint has been brought to your

attention. In a nutshell, here is the process:

**Informal Complaints**

The complainant can file an informal complaint of discrimination. Although it may initially be verbal, it will (usually by

MEO) be put in writing on NGB Form 333.

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The complaint should remain at the lowest level possible for attempted resolution. In the case above, both parties are

subordinate to you so it will be on your shoulders to attempt the initial resolution. You will have 30 calendar days (or

through the following drill weekend) to resolve the complaint. This does not give you much time, especially if the com-

plaint comes in your door on the Sunday afternoon of drill. If the complaint is not resolved at this stage, the only means

of appeal is for the complainant to file a formal complaint. MEO personnel will assist you in attempting to resolve the

complaint. They may conduct basic fact finding on your behalf, but you can do that yourself if you wish. If, in obtaining

information about a complaint, you or whomever is doing the interview suspects that the person being interviewed has

violated the state Code of Military Justice or other state or federal criminal codes, the interviewer must read the person

his rights under the State Code (the JAG will provide you with a copy of what to read).

The complainant will be advised that communications to MEO personnel will be released to commanders and others for

official use. The only exception is that MEO personnel have limited confidentiality when using facilitation in the resolu-

tion of informal complaints. (The only person a complainant can go to and maintain a privileged communication is the

chaplain.)

Even if the complaint is withdrawn at this stage, you should attempt to eliminate any underlying causes for the com-

plaint.

**Formal Complaints**

If you cannot resolve the complaint within 30 days or by the end of the following drill weekend, the complainant can ei-

ther withdraw the complaint or file a formal complaint.

If you are now at the formal complaint stage, then you will need to request an NGB case number through your state

equal employment manager (SEEM) within 72 hours of receiving the complaint and initiate a commander's reprisal pre-

vention plan (Figure 2-2 in ANGI 36-3). You will now have 60 calendar days from the date of the filing to:

1. Complete a procedural review of the complaint to determine whether you will accept, dismiss or refer (in

whole or in part) the complaint.

2. Complete an investigation of all accepted issues in a complaint. You will appoint an impartial investigator who is not

otherwise involved in the processing of the complaint and who is outside the chain of command of either the complain-

ant or the named responsible person(s). Your choice of investigator is an important one. He or she needs to be higher in

rank than the named person(s). The investigator needs to be able to write well and have the time, free from other duties

and responsibilities, to carry out the job. Your SJA can assist you here; in many cases, the deputy SJA might be a good

choice (assuming he or she has not given advice to anyone and will be kept from doing so). Whomever it is, the investiga-

tor needs to meet with the SJA to go over the applicable regulations and to review responsibilities.

3. Complete an SJA review of the investigation for legal sufficiency.

4. Attempt resolution and take corrective action where appropriate.

This is a lot to accomplish in 60 days. You may need to bring the people involved in this process in on orders for a day or

two to facilitate the completion of all requirements.

If the complaint is resolved, you will forward the case file to the SEEM. If it is unresolved at the end of 60 days, the case file will be automatically forwarded on appeal to the next level of command. All successive level commanders will have

30 days to review the case and attempt resolution of the complaint.

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If the complaint was dismissed, in whole or in part, the SEEM will review it as well. If the SEEM concurs, he or she will

forward to NGB-EO a copy of the NGB Form 333 for a final review. If either the SEEM or NGB does not concur, you will

get it back for a do-over.

If the complaint remains unresolved at The Adjutant General level after 90 days, the entire case file will be forwarded to

NGB-EO with a request from TAG for a final decision.

If participants in the complaint process are full time or AGR, a reduction in the time limits described above is appropri-

ate (but not required).

One other time limit to consider: A complaint must be filed within 180 calendar days from the date of the alleged dis-

crimination or the date that the individual became aware or reasonably should have become aware of the alleged discrimi-

natory event or action.

**SPECIAL CASES**

All allegations of discrimination made against a general officer or general officer-select, personally (as opposed to those

naming such a person by virtue of his or her position), will be referred to the state inspector general or NGB-EO for for-

warding and processing through IG channels to SAF/IGS and DA-IG, as appropriate, in accordance with AFI 90-301.

Allegations against a colonel or colonel-select will be processed as outlined above (in accordance with ANGI 36-3). How-

ever, such allegations will be reported through IG channels to SAF/IGS. A copy of the case file must also be forwarded by

NGB-EO to NBG-IG, upon final decision, resolution, or withdrawal of the complaint.

**INQUIRIES AND INVESTIGATIONS**

Once a commander is informed about a sexual harassment complaint, the commander should conduct an "inquiry" or

"investigation" to ascertain the facts in the case.

An inquiry is a fact-finding process used to determine the validity and merit of discrimination allegations. Basic fact finding will be used to facilitate resolution at the lowest level. It may involve a review of records and regulations and inter-

viewing witnesses. This process is appropriate when the commander receiving the complaint does not have appointing

authority to appoint an investigator. You may also want to conduct an inquiry (vs. an investigation) when you only have

the complainant and the alleged offender to interview, the facts are simple, and, perhaps most importantly, you believe

the complaint is likely to be resolved at the informal complaint level. If it is not likely to be resolved at this level, appoint an investigating officer and do an investigation. Before you get started, consult your JAG. The JAG can advise you of any

complicating factors as well as provide you with guidance on interview techniques, whether it might be necessary to ad-

vise the member of his/her constitutional rights, and the best method of documenting your findings under the circum-

stances.

An investigation is an administrative fact-finding procedure to investigate the allegations to determine what actually oc-

curred, to assess the validity of the allegations, to advise the command of any leadership or management concerns which

might contribute to perceptions of unlawful discrimination and poor unit command climate, and to recommend appropri-

ate corrective action. If a formal complaint is filed with the MEO office, you will not have a choice: you will conduct an

investigation. Consult your JAG for further assistance.

**CONCLUSION**

If you are a commander for any length of time, you will at some point be faced with a sexual harassment complaint.You

can take affirmative steps to reduce the number of and the consequences of those complaints upon your unit. First, be

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_**Page 6**_

proactive in publicizing the policy and your zero tolerance for any violations of it. Two, when you do have a complaint,

jump on the problem. Even if it walks into your office late on a Sunday drill, make sure you take the initial first

steps in resolving the problem. Contact your JAG. If the alleged offender is the complainant's supervisor, remove the al-

leged offender from that position. Set up times to meet with the involved parties or appoint an investigator. Refer the

complainant to the MEO office. When the complaint has been resolved, consider tasking the MEO office to perform a

UCA and re-emphasize the policy through a commander's call.

_**KWIK-NOTE: Ensure that all unit members understand the law and command policy that prohibits sexual harassment and**_

_**the disciplinary and adverse administrative actions that can result from inappropriate behavior and reprisal.**_

**RELATED TOPICS:**

**SECTION**

Advising Suspects of Their Rights

8-9

Affirmative Actions 9-2 Civilian Employee Discipline

5-2

Commander's One-on-One Meeting With Member – Precautions

16-5

Command Influence

2-2

Discrimination Complaints – Military

9-3

Discrimination Complaints – Technician

9-4

Equal Opportunity and Treatment Program

9-5

Evidence – Differing Standards and Burdens of Proof

8-4

Freedom of Expression – Restrictions on Military Members

14-13

Freedom to Complain – Military Members

16-8

Investigations and Inquiries

16-11

Legal Assistance to Unit Members and the Role of the Judge Advocate to the Commander

17-9

Legal Reviews

17-11

Newcomer's Briefing

1-22

Nondiscrimination in Federally Assisted Programs

9-6

Personal Liability of Federal and State Officials

18-9

Release of Reports of Investigation in Discrimination Complaints to Management Officials

9-7

Selective Enforcement

24-14

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**Chapter 10, Drug and Alcohol Abuse**

**Table of Contents**

**Section**

10 - 1 Table of Contents

10 - 2 Cross Functional Oversight Committee / Demand Reduction Program Manager

10 - 3 Alcohol Abuse

10 - 4 Drug Abuse

10 - 5 Steroids

10 - 6 Drug Abuse – Administrative Discharge Policy

10 - 7 Urinalysis Program

10 - 8 Consent Urinalysis

10 - 9 Command Directed Urinalysis

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_**Section 10-2 Cross Functional Oversight Committee**_

_**Page 1**_

**Cross Functional Oversight Committee, Demand Reduction**

**Program Manager, and Drug Test Program Administrative Managers**

**Updated by Lieutenant Colonel Michelle Hagel, January 2018**

**AUTHORITY:** AFI 90-507, _Military Drug Demand Reduction Program_ (22 Sep 2014, incorporating change dtd 14 Mar

2017); AFI 44-121, _Alcohol and Drug Abuse Prevention and Treatment (ADAPT)_ (8 Jul 2014). 

## INTRODUCTION

AFI 44-120, _Military Drug Demand Reduction Program_ (2 Jan 2011) was superseded by AFI 90-507, _Military Drug Demand Reduction Program_ (22 Sep 2014). The Directive sets forth policies regarding drug demand reduction activities of Air Force military personnel, including the Air Force Reserve and Air National Guard.

The Cross-Functional Oversight Committee (CFOC), established in AFI 90-507, is required to assess the status and effi-

cacy of the drug testing program on the installation. The installation commander is responsible for creating the commit-

tee. The committee will advise the wing commander and provide recommendations to improve the drug testing program

efficiency.

The ANG will have a CFOC which meets at least once per year, but may meet more frequently if deemed appropriate.

The CFOC will be chaired by the wing commander or vice wing commander. Further, Regional Support Groups (RSG)

will ensure that Geographically Separated Units (GSU) comply with drug testing procedures. The host wing commander,

in conjunction with the installation commander, will ensure GSUs comply with required drug testing procedures.

**CFOC COMMITTEE MEMBERS**

Office of Special Investigation (OSI) or Security Forces

Staff Judge Advocate

Reserve Medical Unit commander

Drug Demand Reduction Program manager or Drug Testing Program Administrative manager

First sergeants

Group commanders

Others deemed appropriate by the installation commander

**RESPONSIBILITIES OF THE CFOC**

The CFOC will advise the installation commander and provide recommendations to improve the efficiency of the drug

testing program. The CFOC will monitor and evaluate:

The drug testing program's ability to meet the drug testing program goals. Particular attention should be given to the

quality of compliance with guidelines for specimen collection, packaging and shipment.

Commanders' and supervisors' understanding and support for the goals of the drug testing program, its readiness and

health implications, as well as its efficacy in ensuring a drug-free workplace.

Compliance with the required minimum testing and the type of test appropriate to the local threat.

Testing of personnel assigned to the wing/group regardless of grade, status or position, including tenant units.

Commanders' and supervisors' understanding of the random selection process and range of appropriate responses to

military members who fail to go for testing or refuse to provide a specimen.

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_**Page 2**_

SJA will present the last annual inspection results, and DDRPM/DTPAM will also present quarterly/annual metrics.

Wing commanders will appoint, in writing, a DDRPM and/or DTPAM. The DDRPM must be an E6 or above and the

DTPAM must be an E5 or above.

**REQUIREMENTS OF THE DRUG DEMAND REDUCTION PROGRAM MANAGER (DDRPM) and DRUG TEST-**

**ING PROGRAM MANAGERS (DTPAM)**

The DDRPMs/DTPAMs must be an individual possessing unquestionable integrity and trustworthiness and meet the fol-

lowing criteria:

No Unfavorable Information File ( _see_ AFI 36-2907).

Individuals are ineligible to serve as DDRPMs/DTPAMs if they have a record of conviction by courts-martial or civilian

criminal court, or if they have received a non-judicial punishment under Article 15, UCMJ, or a Letter of Reprimand or

similar administrative action (Letter of Admonishment, Letter of Counseling) for misconduct involving dishonesty, fraud

or drug abuse (including use, possession or distribution). Before assigning an individual to serve as a DDRPM, the unit

commander will review the individual's Personnel Information File (PIF) or personnel record.

Commanders, on a case-by-case basis, make the determination on whether conduct is dishonest or fraudulent. Command-

ers will receive advice from the servicing SJA in unclear situations whether past misconduct is disqualifying.

No pending UCMJ action (court-martial, Article 15), pending civilian criminal action, or pending administrative action

(Separation, Letter of Reprimand/Counseling/Admonishment for dishonesty, fraud or other integrity offenses).

No medical or mental health condition which will preclude her from responsibly performing assigned duties as a

DDRPM.

The individual will be asked to certify, and will sign a statement certifying, no record of conviction for any offense or history of past misconduct involving dishonesty, fraud or drug abuse (including use, possession or distribution).

**DDRPM**

The DDPRM will perform the following duties:

Ensure DDRP is conducted IAW with AFI, DoD and state requirements.

Manage all aspects of the DDRP to include budget and the military/civilian drug urinalysis testing programs.

Installation DDRPMs, or where there is no DDRPM, DTPAM will perform the following duties:

Act as the focal point for installation-level drug testing and any optional drug prevention/education issues (drug

prevention/education is not required).

Brief unit commanders, first sergeants, and supervisors on the drug testing program. Depending on available manning,

Alcohol and Drug Abuse Prevention and Treatment (ADAPT) staff may conduct these briefings.

Ensure all DTPAMs (including GSU DTPAMs) are adequately trained and competent to perform associated duties. Docu-

ment and certify training for all DTPAMs who participate in the installation's DDRP.

Ensure trusted agents and observers have documented training.

_****_

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_**Page 3**_

Ensure the DTPAM uses the National Guard Bureau (NGB) DDRP software already in place.

Maintain a current contact listing of all unit commanders, first sergeants, trusted agents and legal office personnel.

Safeguard the sensitive medical information that testing may generate IAW AFI 33-332, Privacy Act Program and state

code.

Ensure the MRO is notified in writing as soon as practicable, not to exceed seven days, when positive drug test results

are received.

The wing DDRPM shall receive all positive urinalysis results via secure military network email from DDRPM at the NGB

level. The wing-level DDRPM shall then forward the positive result to the wing commander, unit commander, Staff Judge

Advocate (SJA) and security forces commander on or before the next UTA after initial receipt of positive notification.

Maintain appropriate statistical data as required.

Use the testing software to track individual(s) unavailable for testing because they cannot be located at the time, wing

shift workers, flying status and so on.

Ensure that, before the actual collection process, observers read, understand, sign and date a Drug Testing Observer's

Briefing acknowledging their acceptance and understanding of their responsibilities and the consequences of their ac-

tions for not performing their duties IAW established guidelines, as well as physically review the process involved in ob-

servation and collection. These signed briefing forms must be maintained as part of the drug urinalysis testing file IAW

AFMAN 33-363, _Management of Records_.

**DDRPM**

DTPAMs will:

Coordinate drug testing activities with the DDRPM and other agencies as applicable.

Ensure specimens are collected, packaged and transported to the drug testing laboratory according to the forensic require-

ments of the AFI and applicable guidance.

In conjunction with the DDRPM, monitor the rate of untestable specimens and take appropriate action to attain less

than one percent of specimens are untestable. Verify results are received for every specimen sent for testing, track out-

standing results and perform follow-up with the testing laboratory to resolve issues of turnaround times, outstanding

results and untestable specimens. Communicate findings and proposed resolutions to untestable discrepancies to the

DDRPM.

Ensure DDRP is conducted IAW with AFI, DoD and state requirements.

Safeguard the sensitive medical information that testing may generate IAW AFI 33-332, _Privacy Act Program_ , and state code.

_**KWIK-NOTE: The installation commander should play an integral part of the Cross Functional Oversight Committee. The**_

_**Committee shall be chaired by the wing commander or his/her designee. Further, the commander should carefully choose**_

_**those members he or she selects to fill the critical roles of DDRPM and DTPAM.**_

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_**Section 10-2 Cross Functional Oversight Committee**_

_**Page 4**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Civilian Employee Discipline

5-2

Labor Relations

5-5

Unacceptable Performance of Civilian Employees

5-6

Inspections and Searches

8-16

Driving While Intoxicated and Other Offenses Involving Intoxication

8-17

Drug Abuse

10-4

Urinalysis Program

10-7

Preventative Law Program

17-15

Civil Associations and Military Corporations

22-2

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Quality Force Management Actions

24-12

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 10 Drug and Alcohol Abuse**_

_**Section 10-3 Alcohol Abuse**_

_**Page 1**_

**Alcohol Abuse**

**Updated by Lieutenant Colonel Michelle Hagel, January 2018**

**AUTHORITY:** AFI 44-121, _Alcohol and Drug Abuse Prevention and Treatment_ (ADAPT) Program (8 July 2014); applicable state laws. ****

**POLICY**

The Air National Guard (ANG) and the Air Force recognize alcoholism as a progressive, non-compensable disease that

affects the entire family and is both preventable and treatable. ANG policy is threefold: to prevent alcohol abuse and alco-

holism, to try to restore to effective functioning persons with problems attributable to the abuse of alcohol and to ensure

humane management and disposition of those who cannot be restored or who do not remain restored.

Nonetheless, ANG and Air Force policies on standards of behavior, performance and discipline are well established and

will be firmly maintained. These standards apply to each person's actual demonstrated conduct, rather than to the use of

alcohol as such. Standards that apply to the general military population apply equally to those who use alcohol to the det-

riment of their social functioning or military conduct and duty performance.

**COMMANDER'S RESPONSIBILITIES**

Although ANGR 30-2, Social Actions NGB Program, is no longer in effect, some of the responsibilities delineated below

for commanders still remain an important ideal to which commanders should heed:

Become acquainted with and support the ANG alcohol program.

Become familiar with corrective procedures to rehabilitate personnel and disciplinary policies as they relate to the alco-

hol program.

Continue to observe a subordinate's performance.

Document specific instances where a member's work performance fails to meet job standards.

Consult with medical, legal (JA), Demand Reduction Program Manager, chaplain and MEO staff for advice on the cause

of a member's problem, if alcoholism is suspected.

Interview a unit member if poor job performance is observed.

Offer a member a firm choice between accepting the help that is available to them or accepting the consequences for con-

tinued unsatisfactory performance.

Seek advice from and coordinate with the civilian personnel office and your state JA relating to civilian personnel on prob-

lem areas such as performance, discipline and suspected alcohol abuse.

Refer for evaluation a member involved in alcohol abuse.

Support the de-glamorization of alcohol.

Deny access to classified information and unescorted entry, and establish a Special Security File (SSF) on members

whose eligibility and reliability are made questionable by use or abuse of alcohol.

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_**Chapter 10 Drug and Alcohol Abuse**_

_**Section 10-3 Alcohol Abuse**_

_**Page 2**_

Additional guidance for commanders from Air Force Medical Services:

Ensure personnel are aware of the negative impact of substance abuse and can identify possible indicators of at-risk per-

sonnel.

Ensure personnel are aware of policies related to substance abuse.

Ensure personnel are aware of resources for seeking help for substance-related problems and how to refer individuals for

assessment and/or treatment.

Communicate clearly that isolated instances of substance-related problems should be reported to command.

Observe and document the performance and conduct of subordinates when alcohol misuse is suspected to be a factor in

declining duty performance or inappropriate off-duty behavior.

Clearly communicate a desire to help personnel manage potential substance use problems before they have a negative

impact on work, relationships and health.

Recognize that individuals diagnosed with alcohol abuse or dependence need specialized treatment. While in treatment,

these individuals have a duty limiting condition, which will preclude deployment.

Direct drug testing, if appropriate, after consultation with your servicing JA.

Assess the member's suitability for continued military service following successful completion of treatment.

Commanders must ensure that each identified problem drinker and suspected alcoholic is medically evaluated and of-

fered treatment and rehabilitation, if appropriate.

**DETECTION**

Deteriorating duty performance.

Frequent errors in judgment.

Excessive tardiness or absenteeism.

Recurring reports of alcohol-related incidents.

Unacceptable social behavior or misconduct.

Domestic disturbances or family violence.

**ACTION**

AFI 44-121 establishes guidance for the Air Force Alcohol & Drug Prevention & Treatment (ADAPT) Program. It applies

to the ANG whenever eligible for DoD medical services. A member identified as an alcohol abuser and in need of treat-

ment will be entered into the ADAPT program. Members referred for substance abuse assessments who do not meet di-

agnostic criteria for alcohol abuse or alcohol dependence will be provided Alcohol Brief Counseling. ADAPT Program

Managers (PM) will ensure ANG members who have been evaluated by the ADAPT Program staff but are not eligible for

DoD medical services are given information on how to obtain follow-up care by a qualified non-military provider for Sub-

stance Use Disorder (SUD) treatment. The ADAPT PM will collaborate and communicate with Guard Medical Unit

_**Air National Guard Commander's Legal Deskbook**_

365

_**Chapter 10 Drug and Alcohol Abuse**_

_**Section 10-3 Alcohol Abuse**_

_**Page 3**_

(GMU) personnel when required by AF and DoD policy, regarding any ANG member who presents to the ADAPT Pro-

gram for services. ANG members who have not been entered into the ADAPT Program will ensure the civilian SUD re-

cords are available for review by the GMU.

After being diagnosed with an SUD, patients will be placed in the appropriate level of care IAW American Society of Ad-

diction Medicine (ASAM) Patient Placement Criteria (PPC). ANG members who are referred by the ADAPT PM to a

non-military provider/agency for substance use disorder treatment will not be considered to have successfully completed

the ADAPT Program until the member has completed treatment and continuing care (aftercare). The Treatment Team

(TT) determines when the patient no longer requires program resources, in coordination with GMU personnel and based

on VA/DoD Clinical Practice Guidelines for Management of SUD, current Diagnostic Statistical Manual (DSM) criteria

and ASAM PPC and the patient's progress toward agreed-upon goals and/or issues as stated in the treatment and con-

tinuing care (aftercare) plans.

The determination that a patient has failed treatment is based on the patient's repeated failure to meet and maintain AF

standards (behavior), rather than solely on the use of alcohol. Individuals who have been determined as failing the

ADAPT Program shall be considered for administrative separation by their commander. ( _See_ AFI 36-3209.)

ANG members who are eligible for military treatment services will be provided appropriate medical care prior to separa-

tion. Separation action will not be postponed because of a member's participation in the ADAPT Program. For ANG

members, the TT will be convened telephonically with the ANG Behavioral Health Consultant to determine if a patient

has failed the program based on a demonstrated pattern of unacceptable behavior, unwillingness to engage with the

GMU or ADAPT Program after having an ARM, inability or unwillingness to comply with their treatment plan or involve-

ment in ARMs after receiving initial treatment. The ADAPT PM will coordinate with non-military providers for ANG

members who have been referred for treatment to determine program outcome.

**ANG COMMANDER'S RESPONSIBILITY UNDER ADAPT**

Unit commanders are encouraged to place the member suspected of having an SUD on orders to receive the initial assess-

ment and treatment recommendation from the ADAPT Program (evaluation only), IAW AFI 48-123, _Medical Examinations_

_and Standards_ , and AFI 36-2254-v1. ANG members not already eligible for military treatment services ( _i.e._ , were placed on orders for the SUD assessment only) will be managed IAW paragraph 1.11.13 of AFI 44-121. If the commander

chooses not to place a member on orders, the commander will refer those ANG members who are suspected of having an

SUD to a non-military MHP for an SUD assessment and any recommended treatment. The non-military provider must

be a licensed MHP or a Certified Drug and Alcohol Counselor (CADC). ANG members who have not been entered into

the ADAPT Program will ensure the civilian SUD records are available for review by the GMU, and will be encouraged to

follow up with the DPH for case management services.

AGRs and EAD Guard members should be referred to a program at the nearest active-duty military installation. Because

it is a government program, it is at no cost to these full-time members. Drilling guard members, guard members who are

dual-status technicians, and state employees should be referred to reputable programs in their surrounding civilian com-

munity, but must pay their costs personally, or through private health insurance.

Commanders should consider the following when a member is identified as an alcohol abuser:

Revocation of security clearance and related access to classified information. ( _See_ DoD Reg. 5200.2-R/AFI 31-501.)

Appropriateness of present duty assignment, keeping in mind participation in alcohol rehabilitation does not permit as-

signing demeaning or punitive duties.

Corrective action for misconduct resulting from alcohol abuse, but not for the alcohol abuse itself. ( _See, also,_ AFI 48-123

and AFI 31-501.)

_**Air National Guard Commander's Legal Deskbook**_

366

_**Chapter 10 Drug and Alcohol Abuse**_

_**Section 10-3 Alcohol Abuse**_

_**Page 4**_

Denial of reenlistment when, due to the pattern of substandard conduct, the member is incapable of rehabilitation.

A Line of Duty investigation when the member is unable to perform duty because of alcohol-related disease or injury.

**LEGAL ASPECTS OF ALCOHOL-RELATED ISSUES**

Know the minimum drinking age in your state, because even if your officer, NCO or combined club is on federal land,

that club must adhere to the state's minimum drinking age.

Dram shop liability is one created by state statute or court decision which imposes on the server (activity or facility) of

alcoholic beverages the duty to refuse to serve a patron who reaches or appears to be reaching the point of intoxication.

Under some state laws, the server may be held liable for damages when alcoholic beverages continue to be served to pa-

trons who later bring claims for harm to property, themselves or others.

To protect the installation commander and your facility from this liability, make sure the activity where alcoholic bever-

ages are sold or consumed on your base is established in such a form that under your state law, the activity can be and is

covered by Dram Shop Liability insurance. It if is not covered, the commander may be personally liable for damages

caused by the harm inflicted by one of your intoxicated members. See the topic in this Deskbook entitled, "Dining Social

Club Organizations," for more guidance in this area. Your best protection is to set up controls in the activity where alco-

holic beverages are served to prevent against serving "one too many," and establish similar controls on the base to pre-

vent intoxicated drivers from leaving the base.

Be aware that alcoholism is a disease and may, depending on the circumstances, be considered a disability under the Re-

habilitation Act of 1973 (29 U.S.C. 791, et. seq.) and the Americans with Disabilities Act (ADA). These laws may be rele-

vant regarding certain federal employees. If applicable, these laws impose a duty on the employer to reasonably accommo-

date the employee with the disability. However, these laws do not preclude disciplinary action for unsatisfactory conduct,

even if caused by alcoholism. Consult your state JA and civilian personnel office if you are considering disciplining a civilian employee for alcohol-related misconduct.

_**KWIK-NOTE: Aggressively deal with alcohol abuse in your unit.**_

**RELATED TOPICS:**

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****

****

****

****

****

****

**SECTION**

Evidence – Differing Standards and Burdens of Proof

8-4

OSI and SF Reports

8-14

Inspections and Searches

8-16

Driving While Intoxicated and Other Offenses Involving Intoxication

8-17

Drug Abuse

10-4

Drug Abuse – Administrative Discharge Policy

10-6

Urinalysis Program

10-7

Consent Urinalysis Tests

10-8

Dining Social Club Organizations

22-3

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Admonitions and Reprimands – Administrative

24-5

Barring Reenlistment

24-6

_**Air National Guard Commander's Legal Deskbook**_

367

_**Chapter 10 Drug and Alcohol Abuse**_

_**Section 10-4 Drug Abuse**_

_**Page 1**_

**Drug Abuse**

**Updated by Lieutenant Colonel Michelle Hagel, January 2018**

**AUTHORITY:** AFI 90-507, _Military Drug Demand Reduction Program_ (22 Sep 2014, incorporating change dtd 14 Mar

2017); AFI 44-121, _Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program_ (8 Jul 2014); applicable state law. ****

## INTRODUCTION

Drug abuse is not tolerated in the Air National Guard. You, as a commander, must be ever-vigilant to evidence of drug

abuse within your unit due to the serious impact it may have on safety and the accomplishment of the mission. Drug

cases should receive your prompt evaluation and disposition.

**POLICY**

Department of Defense (DoD) policy is to prevent and eliminate drug and alcohol abuse and dependence from the

DoD. Such abuse and dependence are incompatible with readiness, the maintenance of high standards of performance

and military discipline.

Because the ANG does not tolerate drug abuse, such use is a serious breach of discipline; it is incompatible with service

in the ANG; it automatically places the member's continued service in jeopardy; and it may lead to criminal prosecution

resulting in a punitive discharge or administrative actions, including separation or discharge under other than honorable

conditions.

The Air Force defines drug abuse as the illegal, wrongful or improper use, possession, sale, transfer or introduction onto

a military installation of any drug defined in AFI 90-507, _Military Drug Demand Reduction Program_. "Wrongful" means without legal justification or excuse.

Studies have shown that products made with hemp seed and hemp seed oil may contain varying levels of tetrahydrocan-

nabinol, an active ingredient of marijuana detectable under the Air Force Drug Testing Program. To ensure military readi-

ness, the ingestion of products containing or products derived from hemp seed or hemp seed oil is prohibited. Failure by

military personnel to comply with the prohibition on the ingestion of products containing or products derived from

hemp seed or hemp seed oil is a violation of Article 92, Uniform Code of Military Justice (UCMJ), or applicable state law

and State Military Code.

To ensure military readiness, safeguard the health and wellness of the force and maintain good order and discipline in

the service, the knowing use of any intoxicating substance, other than the lawful use of alcohol or tobacco products, that

is inhaled, injected, consumed or introduced into the body in any manner to alter mood or function is prohibited. These

substances include, but are not limited to, controlled-substance analogs ( _e.g._ , designer drugs such as "spice" that are not otherwise controlled substances); inhalants, propellants, solvents, household chemicals and other substances used for

"huffing"; prescription or over-the-counter medications when used in a manner contrary to their intended medical purpose or in excess of the prescribed dosage; and naturally occurring intoxicating substances ( _e.g., Salvia Divinorum_ ). The possession of any intoxicating substance described in this paragraph, if done with the intent to use in a manner that

would alter mood or function, is also prohibited. Failure to comply with the prohibitions contained in this paragraph is a

violation of Article 92, UCMJ, or applicable state law and State Military Code. Violations may result in administrative dis-

ciplinary action without regard to otherwise applicable criminal or civil sanctions for violations of related laws.

The ANG does not have the resources to implement a drug rehabilitation program, but it must identify drug abusers, con-

trol their duty assignments and discipline and/or discharge them. Unlike alcohol abuse, which the ANG views as a pre-

ventable and treatable disease, the ANG deals with drug abuse more strictly, in that the identified drug abuser is subject

to punitive action or involuntary separation under AFI 36-3209.

_**Air National Guard Commander's Legal Deskbook**_

368

_**Chapter 10 Drug and Alcohol Abuse**_

_**Section 10-4 Drug Abuse**_

_**Page 2**_

**PREVENTION**

The ANG employs two main methods to prevent drug abuse:

Educate all members on the DoD/AF/ANG policy against drug abuse through training programs, preventive law pro-

grams, commander's calls, briefings and distribution of anti-drug abuse materials base-wide.

Deter and detect through a properly run base urinalysis program, documented evidence of indications of suspected drug

abuse based on an individual's work performance and other conduct.

Commanders are also encouraged to be proactive:

Hold "All Calls" to remind unit members of the "zero tolerance" policy and of the personal and professional conse-

quences of drug use. (Be careful to avoid Undue Command Influence.)

Use your resources, personnel and training.

Encourage unit members to remain vigilant in looking out for each other.

Remind Airmen that drug abuse is not the social norm in the ANG.

Employ the various drug-testing options available to commanders, as appropriate.

Take swift, consistent action against unit members when evidence supports allegations of drug abuse. Consult your SJA.

Engage with unit members to be aware of potential risk factors for drug abuse.

**MINIMIZING ADVERSE IMPACT**

Once drug abusers are identified, and depending on how they were identified and on what their status was at the time

identified, the ANG has two methods to minimize the adverse impact the drug abuse will have on the ANG and the indi-

vidual drug abuser. The methods are separation and rehabilitation. Included in both of these methods are other appropri-

ate quality force management actions and disciplinary actions while the separation or rehabilitation process is pending.

**SEPARATION**

Confirmed drug abusers will be processed for separation from the ANG. This includes AGRs, dual-status technicians

(confirmed as drug abusers in their military status), and drill-status guard members. When you identify a technician as a

drug abuser in technician status, you should immediately notify your state JA and your civilian personnel office for a de-

termination of appropriate action under applicable technician regulations and any applicable provisions of the local collec-

tive bargaining agreement.

**REHABILITATION**

AFI 44-121 establishes the Air Force Alcohol and Drug Abuse Treatment Program (ADAPT), applicable to ANG when-

ever eligible for DoD medical services ( _see_ section 10-3, _Alcohol Abuse_ , for additional information on ADAPT). Assigning members to a duty status or extending them on orders for purposes of rehabilitation is not authorized. AGRs are eligible

to participate in government-funded alcohol drug rehabilitation programs operated by the DoD and VA, but AGRs may

not be extended on active duty to complete their rehabilitation. Although the treatment program seeks to assist mem-

bers in getting professional help, rehabilitation does not bar a commander from taking disciplinary and/or discharge ac-

tion against the drug abuser, whether the member is an AGR or a traditional member of the ANG.

_**Air National Guard Commander's Legal Deskbook**_

369

_**Chapter 10 Drug and Alcohol Abuse**_

_**Section 10-4 Drug Abuse**_

_**Page 3**_

The eligibility of ANG members for rehabilitation involves a three-step process: evaluation, education and decision. Be-

fore the process begins, the member must be identified as a drug abuser. This is done through self-identification, com-

mander identification and referral or medical care referrals.

**RELATED ACTIONS**

A commander may have other responsibilities along with disciplinary or discharge action of a drug abuser, including:

A line of duty determination.

A security clearance and access to classified information determination.

A review of the propriety of the member's current duty assignment.

A determination of whether state or federal law enforcement officials should be informed.

**UNLAWFUL COMMAND INFLUENCE**

A commander should be careful not to exert unlawful command influence. The commander should zealously enforce the

USAF/ANG policy against illegal drug use; however, it is easy to take things too far. Statements such as, "All drug users

will be discharged and anyone who supports them will be disciplined," is problematic. It might cause a potential board

member in an administrative discharge case to decide a member should be discharged because he thinks that is what the

commander wants him to do. It might also cause a character witness to refuse to testify on behalf of a member who is

facing a discharge board because he thinks the commander will take action against him if he testifies the member is a

good worker. Telling a board member how to vote in a discharge case or taking action against a member who wishes to

stand up for a member alleged to have used drugs, is unlawful command influence. If it is proven that the unlawful com-

mand influence affected the decision of the board member or witness, the board actions will likely be nullified.

_**KWIK-NOTE: Widely disseminate materials to educate your members on illegal drug use. While it is important to be aggres-**_

_**sive, beware of unlawful command influence. Be consistent with ANG policy and consult with your subject matter experts.**_

**RELATED TOPICS:**

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****

****

****

****

****

****

****

**SECTION**

Evidence – Differing Standards and Burdens of Proof

8-4

Inspections and Searches

8-16

Driving While Intoxicated and Other Offenses Involving Intoxication

8-17

Alcohol Abuse

10-3

Drug Abuse

10-4

Drug Abuse – Administrative Discharge Policy

10-6

Urinalysis Program

10-7

Consent Urinalysis Tests

10-8

Command Directed Urinalysis

10-9

Commander's One-on-One Meeting with Member – Precautions

16-5

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Admonitions and Reprimands – Administrative

24-5

Barring Reenlistment

24-6

_**Air National Guard Commander's Legal Deskbook**_

370

_**Chapter 10 Drug and Alcohol Abuse**_

_**Section 10-5 Steroids**_

_**Page 1**_

**Steroids**

**Updated by Lieutenant Colonel Michelle Hagel, January 2018**

**AUTHORITY:** AFI 90-507, _Military Drug Demand Reduction Program_ (22 Sep 2014, incorporating change dtd 17 Mar

2014); Anabolic Steroids Control Act of 1990, 21 U.S.C. Sec. 812(c); applicable state law.

**THE USE OF STEROIDS IS PROHIBITED**

The Steroids Control Act of 1990 became effective in February 1991. It amended the Controlled Substances Act by add-

ing anabolic steroids to Schedule III. Because steroids are a controlled substance, use may be punishable under the Uni-

form Code of Military Justice or State Military Code and provides a basis for discharge from the Air National Guard.

Urine samples collected for steroid testing must be collected, shipped and processed differently than those requiring rou-

tine testing. If a commander wishes to test for steroid use, a written, signed request must be submitted to the Air Force

Drug Testing Laboratory (AFDTL) describing the number of specimens, the period during which the specimen is to be

collected, and the gender of the donors. AFI 90-507, Attachment 6, provides a sample format of the request letter along

with the one included in Section 10-7. The gender of the member submitting the urine sample must be indicated.

Specimens collected solely for steroid testing must contain at least 60 milliliters of urine; additionally, they must be collected, shipped and processed separately and differently from those requiring routine testing. If routine drug testing is

required in addition to steroid testing, a second 30-milliliter specimen must be collected in a separate bottle. The speci-

men intended for routine drug testing must be collected and shipped as normal. Upon receipt of the approval letter, ship

the specimen as outlined in the letter. Use a separate DD Form 2624 for shipping specimens to be tested for the pres-

ence of steroids. Do not list specimens requiring steroid testing on the same DD Form 2624 as those specimens requir-

ing routine testing.

A commander should coordinate with the servicing Staff Judge Advocate if it is deemed necessary to conduct a

command-directed urinalysis or a probable-cause urinalysis for steroids.

_**KWIK-NOTE: The wrongful use of anabolic steroids by Air National Guard members is prohibited.**_

**RELATED TOPICS:**

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****

****

****

****

****

****

**SECTION**

Evidence – Differing Standards and Burdens of Proof

8-4

Inspections and Searches

8-16

Driving While Intoxicated and Other Offenses Involving Intoxication

8-17

Drug and Alcohol Abuse Control Committee

10-2

Alcohol Abuse

10-3

Drug Abuse

10-4

Drug Abuse – Administrative Discharge Policy

10-6

Urinalysis Program

10-7

Consent Urinalysis Tests

10-8

Command-Directed Urinalysis

10-9

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Barring Reenlistment

24-6

_**Air National Guard Commander's Legal Deskbook**_

371

_**Chapter 10 Drug and Alcohol Abuse**_

_**Section 10-6 Drug Abuse-Administrative Discharge Policy**_

_**Page 1**_

**Drug Abuse - Administrative Discharge Policy**

**Updated by Lieutenant Colonel Michelle Hagel, January 2018**

**AUTHORITY:** AFI 36-3209, _Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members_ (14

April 05, incorporating through Change 3, 20 Sept 2011); Article 31, UCMJ.

**POLICY**

_**Drug Abuse is incompatible with continued service in the Air National Guard.**_

As a commander, you must initiate discharge action against any member under your command who has engaged in some

form of drug abuse unless you determine a waiver of discharge is appropriate. The discharge authority must also approve

such a waiver IAW AFI 36-3209, paragraph 4.3.3. The authority for discharging members is AFI 36-3209. When you be-

come aware of substantiated drug abuse by a member of your unit, immediately contact your servicing SJA. After consul-

tation with the SJA, you may want to seek an admission of drug use from the member. An admission would help in the

administrative discharge action.

**ACTION**

Commanders must act promptly when they have information indicating a member is subject to discharge for drug abuse.

You must evaluate the specific circumstances of the offense, the member's records, the member's potential for future serv-

ice and take action IAW paragraphs 2.30.3.2 and 2.30.3.3 of AFI 36-3209.

After seeking advice from the SJA, you should prepare the paperwork necessary to begin the discharge process. Besides

consulting with the SJA, you should consult the Flight Support Services for additional information concerning the re-

quired documents. Your SJA should review the documents before you serve them on the member. An enlisted member

with six years of good service is entitled to a discharge board unless this right is waived. All ANG officers, regardless of years of service, are entitled to a discharge board unless it is waived. If a commander recommends an Under Other than

Honorable Conditions (UOTHC) discharge, a member is entitled to a discharge board. Along with initiating administra-

tive discharge action, a commander should consider disciplinary action against a member who has a positive drug test or

is identified as a drug abuser through other evidence (other than command-directed urinalysis).

Evidence obtained through urinalysis or evidence furnished by the member with initial entry in rehabilitation and treat-

ment may be used to establish a basis for discharge. Evidence obtained through command-directed urinalysis may be

used to establish a basis for discharge, but may not be used on the issue of characterization.

**CONVERSATIONS WITH THE MEMBER**

A commander should be careful concerning discussions with a member who has been identified as a drug abuser. Con-

sult your servicing SJA regarding this matter. If you decide to talk to the member you should do so only after reading

them their Article 31 or "Miranda" rights (right to remain silent). You should always have a witness with you. If the

member is enlisted, the witness should be the First Sergeant. If the member is an officer, the witness should be an offi-

cer. If the member is represented by an attorney, you should not talk to the member unless his counsel is present or has

given you permission to do so.

**UNLAWFUL COMMAND INFLUENCE**

The Air National Guard policy on administrative discharge for drug abusers should be given the widest possible dissemi-

nation to all unit members. However, be careful you do not engage in unlawful command influence. For example, do not

_**Air National Guard Commander's Deskbook**_

372

_**Chapter 10, Drug and Alcohol Abuse**_

_**Section10-6 Drug Abuse-Administrative Discharge Policy**_

_**Page 2**_

forbid members from providing favorable testimony for a member accused of illegal drug use. Nor should you take action

against the member who does provide testimony. A commander must not take adverse action against a judge advocate

who has been assigned to represent the member accused of illegal drug use.

Finally, refrain from discussing the case with any individuals who might be board members or who have been appointed

as board members for the member's discharge board. Board members must base their decision to discharge or retain a

member upon the evidence presented at the board and the instructions provided to them by the Legal Advisor to the

board. A commander can, and sometimes should, testify at the discharge board. Never take any action against a board

member if a decision is made to retain a member who has been accused of illegal drug use.

**WAIVERS OF DISCHARGE FOR DRUG ABUSE CASES**

A member found subject to discharge for drug abuse under AFI 36-3209 may warrant consideration for waiver of dis-

charge. In deciding whether a waiver should be recommended, commanders must fully consider the nature of the offense

involved, all circumstances surrounding the offense, any matters in extenuation, the member's military record and the

member's potential for future productive service. Consideration must include evaluation of the policy for retention crite-

ria and consideration for drug abuse cases.

A member found to have abused drugs will be discharged unless the member meets all seven of the following criteria:

Drug abuse is a departure from the member's usual and customary behavior.

Drug abuse occurred as a result of drug experimentation (a drug experimenter is defined as one who has illegally or im-

properly used a drug for reasons of curiosity, peer pressure, or other similar reasons).

Drug abuse does not involve recurring incidents, other than drug experimentation as defined above.

The member does not desire to engage in or intend to engage in drug abuse in the future.

Drug abuse under all circumstances is not likely to recur.

Under the particular circumstances of the case, the member's continued presence in the ANG is consistent with the inter-

est of the Air Force or ANG in maintaining proper discipline, good order, leadership, and morale (officers and noncom-

missioned officers have special responsibilities by virtue of their status; fulfill an integral role in maintaining discipline; and therefore, must exhibit high standards of personal integrity, loyalty, dedication, devotion to duty and leadership).

Drug abuse did not involve drug distribution.

A commander who initiates waiver of discharge action sends a recommendation to the discharge authority. This provides

the commander's reasons for recommending the waiver and must include:

Evidence substantiating the member's drug abuse.

Completed disciplinary or administrative action taken as a result of the member's drug abuse, _e.g._ , Article 15 actions, letters of reprimand.

Any available investigation report, military or civilian, of the drug offenses.

The commander's statement explaining how the member meets each of the seven retention criteria. Rehabilitative action

taken in the member's case and results.

Any other relevant information.

The discharge authority may either approve or disapprove the waiver. If it is approved, no further action in the case is

required. If it is disapproved, discharge processing must commence at once.

_**Air National Guard Commander's Deskbook**_

373

_**Chapter 10, Drug and Alcohol Abuse**_

_**Section10-6 Drug Abuse-Administrative Discharge Policy**_

_**Page 3**_

**CHARACTERIZATION OF DISCHARGE**

When recommending a member be discharged for drug abuse, the commander must make a recommendation regarding

the characterization of the discharge. AFI 36-3209 indicates that typically a member who uses illegal drugs should re-

ceive an Under Other Than Honorable Conditions discharge (UOTHC). Of course, if this recommendation is made, the

member will automatically be entitled to a discharge board. A commander should discuss the issue of discharge charac-

terization with the SJA.

**ALCOHOL OR DRUG ABUSE REHABILITATION FAILURE**

Members who are in an Air Force program for personal alcohol or drug abuse may be discharged for failure through in-

ability or refusal to participate in, cooperate in or successfully complete such a program under certain circumstances:

there is a lack of potential for continued military service or long-term treatment is determined necessary and the mem-

ber is transferred to or receiving treatment in a civilian medical facility. (Members should be advised before referral to a civilian rehabilitation program that any incurred expenses will be solely their responsibility without obligation to NGB or

ANG.)

If an Administrative Discharge Board is requested, the Board will review the evidence, make a finding of either alcohol or

drug abuse rehabilitation failure and determine the characterization of service, which should either be Honorable or Un-

der Honorable Conditions (General).

**WHO WILL TEST POSITIVE?**

All commanders should keep in mind that a member might test positive who you least expect to be a drug user. The

member could be a friend, a high-ranking NCO or officer, or a member with long service. Although it may be a tough

case, a commander must enforce the drug abuse policy no matter who tests positive. Do not consider special treatment,

personal feelings or favors. Rather, allow the system to work.

_**KWIK-NOTE: Be consistent in the application of your administrative discharge policy for drug abuse.**_

**RELATED TOPICS:**

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**SECTION**

Withdrawal of Authority to Bear Firearms

1-41

Command Influence

2-2

Evidence – Differing Standards and Burdens of Proof

8-4

Advising Suspects of Their Rights

8-9

Confessions

8-10

OSI and SF Reports

8-14

Courts-Martial

8-15

Inspections and Searches

8-16

Drug and Alcohol Abuse Control Committee

10-2

Drug Abuse

10-4

Urinalysis Program

10-7

Command Directed Urinalysis

10-9

Confidentiality and Privileged Communications

14-6

Boards – Investigative

16-4

Commander's One-on-One Meeting with Member – Precautions

16-5

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Revocation of Security Clearance

24-13

_**Air National Guard Commander's Deskbook**_

374

_**Chapter 10 Drug and Alcohol Abuse**_

_**Section 10-7 Urinalysis Program**_

_**Page 1**_

**Urinalysis Program**

**Updated by Lieutenant Colonel Michelle Hagel, January 2018**

**AUTHORITY:** AFI 90-507, _Military Drug Demand Reduction Program_ (22 Sep 2014, incorporating change 14 Mar 2017) _;_ AFI 44-121, _Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program_ (8 July 2014). 

## INTRODUCTION

ANG members are expected to maintain standards of behavior, performance and discipline consistent with law and regu-

lations. The illegal or improper use of drugs by ANG members is a serious breach of discipline and is not compatible

with service in the ANG. Drug abuse automatically places the member's continued service in jeopardy, and it may lead to

criminal prosecution resulting in a punitive discharge or administrative actions, including separation or discharge under

other than honorable conditions. Drug testing is one method a commander can use to ensure unit members are not abus-

ing drugs. The purpose of this section is to provide a commander with information necessary to understand the Air Force

Drug Testing Program and to ensure it is operated properly on the installation.

**POLICY ON DRUG ABUSE**

Department of Defense (DoD) policy is to prevent and eliminate from the DoD drug and alcohol abuse and dependence.

Such abuse and dependence are incompatible with readiness, the maintenance of high standards of performance and mili-

tary discipline. Drug abuse is defined as the illegal, wrongful, or improper use, possession, sale, transfer or introduction onto a military installation of any drug defined in AFI 90-507, Military Drug Demand Reduction Program. "Wrongful"

means without legal justification or excuse.

Studies have shown products made with hemp seed and hemp seed oil may contain varying levels of tetrahydrocannabi-

nol, an active ingredient of marijuana which is detectable under the Air Force Drug Testing Program. To ensure military

readiness, the ingestion of products containing or products derived from hemp seed or hemp seed oil is prohibited. Fail-

ure by military personnel to comply with the prohibition on the ingestion of products containing or products derived

from hemp seed or hemp seed oil is a violation of Article 92, Uniform Code of Military Justice.

To ensure military readiness, safeguard the health and wellness of the force, and to maintain good order and discipline in

the service, the knowing use is prohibited of any intoxicating substance that is inhaled, injected, consumed or introduced

into the body in any manner to alter mood or function, other than the lawful use of alcohol or nicotine products. These

substances include, but are not limited to, controlled substance analogs (for example, designer drugs such as "spice" that

are not otherwise controlled substances); inhalants, propellants, solvents, household chemicals, and other substances

used for "huffing;" prescription or over-the-counter medications when used in a manner contrary to their intended medi-

cal purpose or in excess of the prescribed dosage; and naturally occurring intoxicating substances (for example, _Salvia_

_Divinorum_ ). The possession of any intoxicating substance described in this paragraph is also prohibited, if done with the intent to use in a manner that would alter mood or function. Failure by military personnel to comply with the prohibitions contained in this paragraph is a violation of Article 92, Uniform Code of Military Justice.

**GOALS AND OBJECTIVES OF THE DRUG ABUSE TESTING PROGRAM**

The goals and objectives of the Air Force Drug Testing Program are as follows:

Enhance mission readiness and foster a drug-free environment through a comprehensive program of education, preven-

tion, deterrence and community outreach in support of the President's National Drug Control Strategy.

Perform community outreach, the on- and off-base prevention, drug education/awareness and deterrence activities tar-

geted to DoD family members, retirees, civilians and contractors.

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Maintain the health and wellness of a fit and ready fighting force as well as a drug-free Air Force community.

Deter military members, including those members on initial entry on Reg AF after enlistment or appointment, from us-

ing illegal drugs and abusing controlled substances.

Assist commanders in assessing the security, military fitness, readiness, and good order and discipline of their com-

mands.

Detect and identify those individuals who use and abuse illegal drugs and other prohibited/controlled substances.

Provide a basis for action against a service member who tests positive for illicit drug use.

Ensure urine specimens collected as part of the drug abuse testing program are supported by a legally defensible chain of

custody procedure at the collection site, during transport and at the drug testing laboratory.

Ensure all AF military specimens are tested by a DoD-certified drug testing laboratory. Re-tests may be sent to a DoD-

certified laboratory, the Armed Forces Medical Examiner System (AFMES) or a Substance Abuse and Mental Health Serv-

ices Administration (SAMHSA)-certified laboratory.

Ensure Air Force personnel recognize the wrongful use of anabolic steroids, controlled substances and other substances

such as inhalants, prescription drugs, and over-the-counter medications by Air Force military members is an offense un-

der the UCMJ. ANG members in Title 32 status are accountable to the State Code of Military Justice. (Note: this may be

dependent upon the status of the Guard member ( _e.g.,_ Title 10, Title 32 or state active duty, and whether the state has a state-law equivalent to the federal UCMJ).

Ensure all Air Force members serving in Joint-Service commands, operations, and schools are tested according to the

commanding service requirements.

**LEVELS AND FREQUENCY OF TESTING**

Air Reserve Component (ARC) members will be tested using available Reserve Component resources and constraints on

training time. ANG personnel on extended active duty (Guard in federal status) will be tested at the same rate as the

RegAF component.

**NOTE: Wings must receive approval prior to testing ANG members who are in Title 10 status by e-mailing the**

**201st MSS.**

ANG will perform random and other forms of inspection testing at a frequency deemed appropriate by the wing com-

mander to meet DoD-established rates. The wing commander is responsible for ensuring randomization and level of test-

ing is met. Monthly testing is highly encouraged; every effort to achieve a RegAF equivalent rate of testing should be

made. ANG members require testing. Annual testing rates for each unit should comply with current DoD end-strength

population testing rates.

**THE BASE DRUG TESTING PROGRAM**

A commander can select a member using the following methods:

**Inspection:** This category includes both random drug testing and unit sweeps. A commander may conduct inspections

to assure proper command functioning, to maintain proper standards of readiness and the fitness/readiness for duty of

present members. Only commanders have the authority to conduct inspections. A commander may direct an inspection

of an entire unit. An example of this is the monthly drug testing during UTAs, or a portion of it. A commander may not

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single out an individual when doing an inspection. Singling out a member could be an illegal search in violation of the

and could form the basis for an involuntary discharge or state UCMJ actions. The discharge could be characterized as an

under other than honorable conditions (UOTHC) discharge. Note: Random inspection testing should be the predomi-

nant type of test used.

**Consent:** A member may always consent to give a urine sample for testing. Typically, commanders ask the member to

consent before resorting to probable cause or commander directed. Prior to obtaining consent, the commander must in-

form the member that he does not have to consent. The consent should be in writing, although it is not required. The

commander should coordinate with the Staff Judge Advocate (SJA) before asking a member to consent to providing a

urine sample. A positive test from a consent urinalysis could result in disciplinary action or form the basis for involun-

tary discharge, including a discharge characterization of under other than honorable conditions (UOTHC).

**Probable Cause:** If a commander has a reasonable belief that a member is abusing an illegal drug, the commander can

obtain a search warrant to search a member's urine for evidence of the illegal drug. A reasonable belief that a member is

illegally using drugs is much stronger than a reasonable suspicion. Probable cause should be based upon reliable informa-

tion that a member is using drugs. For example, a reliable witness might identify the member as using drugs, or drugs

might be found in the individual's possession. A positive drug test from a probable cause urine test could result in disci-

plinary action against the member or form the basis for an involuntary discharge with a discharge characterization of un-

der other than honorable conditions (UOTHC).

**Command Directed:** If a commander has a reasonable suspicion that a member is abusing an illegal drug, the com-

mander can order the member to provide a urine sample for testing. A commander could form a reasonable suspicion a

member is using drugs based upon several factors. Such factors might include poor duty performance, late for duty, er-

ratic or bizarre behavior, change in behavior or failure to maintain a military appearance. A commander should discuss

his suspicions with the Staff Judge Advocate before directing the member to provide a urine sample. A commander

should keep in mind a positive drug test as a result of a command-directed urinalysis could form the basis to involuntar-

ily discharge a member; however, if the urinalysis result is the sole basis for discharge, the member would receive an hon-

orable discharge. Further, results from a command-directed urinalysis cannot be used to take UCMJ action.

**REFUSALS**

Individuals should be given reasonable time to provide a urine sample. The local commander determines reasonable

time. If, after a reasonable time, a person cannot provide, or refuses to provide a sample, the commander must consider

taking action for failure to obey a lawful order. **Under no circumstances will an otherwise healthy person, unable or**

**unwilling to provide a sample, be catheterized solely for the purpose of obtaining a sample.**

If a member is not present for duty when randomly selected to provide a urine sample, the member should be ordered to

provide a sample during the next UTA's testing.

**INABILITY TO PROVIDE A URINE SPECIMEN**

Because members have been required to provide urine samples in direct observation since basic training, commands

should take all precautions to ensure the member is not attempting to defeat the drug testing process. If a member

claims to be unable to provide a sample during the command's collection period, the member shall be turned over to the

command and remain under observation at all times until a sample is provided. If, after a period of eight hours, the mem-

ber still cannot provide a urine sample, the member shall be examined by a military medical authority to investigate pos-

sibility of physical problems. Just as with refusals, under no circumstances will an otherwise healthy person, unable to

provide a sample, be catheterized solely for the purpose of obtaining a urine sample. Examination should be completed

the same day of the collection and documented in member's medical record. If failure to provide a sample is a chronic

problem, member shall be sent to the MTF for further evaluation.

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**ROLES AND RESPONSIBILITIES**

Now that you are familiar with the methods that a commander may use to select a member for drug testing, it is neces-

sary to discuss the process of collecting the urine sample. There are several key individuals in the collection process.

Each one will be set forth and identified.

**WING COMMANDER**

The wing commander ensures the drug testing program is conducted IAW AFI 90-507 and all other applicable guidance.

He or she also ensures the testing level and type of test is appropriate to the local drug threat and is consistent with Air Force guidance. Inspection random testing shall be the predominant type of test used in non-deployed settings. Commanders should also consider using other types of additional inspections such as unit sweeps and gate sweeps.

Commanders may establish testing levels in excess of the Air Force minimum requirements but must ensure staffing to

support additional testing levels. If testing levels exceed the 100% end-strength level, commanders must carefully con-

sider if sweeps should be initiated due to the amount of resources required in conducting sweeps.

On a case-by-case basis, commanders may postpone notification/testing of an individual after coordination with the SJA.

They should continue the Cross Functional Oversight Committee (CFOC) meeting at least annually or more frequently

if deemed appropriate. The wing commander ensures all commanders and first sergeants are trained on DDRP, to in-

clude their responsibilities, within 60 days of assumption of duty, and serves as the supervisor or designates supervision

responsibilities of the DDRPM/DTPAM to the CV or wing DS.

**MEDICAL REVIEW OFFICER (MRO)**

The medical group commander will have oversight of the DDR program and will appoint an MRO. The MRO is responsi-

ble for reviewing test-positive messages and reports from the AFDTL. This officer must be a physician who has appropri-

ate medical training to interpret and evaluate an individual's positive test result based on review of information in the

member's medical record. MROs must be knowledgeable in the medical use of prescription drugs and the pharmacology

and toxicology of prescription and illicit drugs. Only individuals holding either a Doctor of Medicine (MD) or a Doctor of

Osteopathy (DO) degree may serve as MROs.

The MRO must determine whether the member's positive drug test could be caused by prescribed medication or other

natural or synthetic substances to which the member has been exposed. The unit commander shall coordinate with the

MRO and arrange a review of all positive results for the purpose of determining whether it is medically justified or medi-

cally unjustified. The MRO shall issue a written memorandum which determines whether there is medical justification

for the positive result.

The MRO must render a medical determination during the Unit Training Assembly (UTA) in which he or she has first

received all documentation and/or interview with the military member is complete. Results must be forwarded on a for-

mal memorandum to the member, unit commander, SJA and the wing and state-level DDRPMs. State-level DDRPMs will

forward justifications to DDRPMs at the NGB level. The entire process (from the time the DDRPM receives the positive

urinalysis results to the MRO rendering a medical determination) should not exceed 90 days.

**REQUIREMENTS OF THE DDRPMS AND DTPAMS**

The DDRPM/DTPAM must be an individual possessing unquestionable integrity and trustworthiness and meet the fol-

lowing criteria:

No Unfavorable Information File (AFI 36-2907).

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Ineligible if they have a record of conviction by courts-martial or civilian criminal court; or if they have received a non-

judicial punishment under Article 15, UCMJ, or a Letter of Reprimand or similar administrative action (Letter of Admon-

ishment, Letter of Counseling) for misconduct involving dishonesty, fraud or drug abuse (including use, possession, or

distribution). Before assigning an individual to serve as a DDRPM, the unit commander will review the individual's Per-

sonnel Information File (PIF) or personnel record.

Commanders, on a case-by-case basis, make the determination on whether conduct is dishonest and/or fraudulent. Com-

manders will receive advice from the servicing SJA in situations in which it is unclear as to whether past misconduct is

disqualifying.

No pending UCMJ action (court-martial, Article 15), pending civilian criminal action or pending administrative action

(Separation, Letter of Reprimand/Counseling/Admonishment for dishonesty, fraud, or other integrity offenses).

No medical or mental health condition which will preclude an individual from responsibly performing his or her as-

signed duties.

The individual will be asked to certify, and will sign a statement certifying, no record of conviction for any offense or history of past misconduct involving dishonesty, fraud or drug abuse (including use, possession, or distribution).

**DRUG DEMAND REDUCTION PROGRAM MANAGER (DDRPM)**

DDPRM will perform the following duties:

Ensure DDRP is conducted IAW with AFI, DoD and state requirements.

Manage all aspects of the DDRP to include budget and the military/civilian drug urinalysis testing programs.

Installation DDRPMs, or where there is no DDRPM, DTPAM will perform the following duties:

Act as the focal point for installation-level drug testing and any optional drug prevention/education issues (drug

prevention/education is not required).

Brief unit commanders, first sergeants and supervisors on the drug testing program. Depending on available manning,

Alcohol and Drug Abuse Prevention and Treatment (ADAPT) staff may conduct these briefings.

Ensure all DTPAMs (including GSU DTPAMs) are adequately trained and competent to perform associated duties. The

DDRPM/DTPAM documents and certifies training for all DTPAMs who participate in the installation's DDRP.

Ensure trusted agents and observers have documented training.

Ensure the DTPAM uses the National Guard Bureau (NGB) DDRP software already in place.

Maintain a current contact listing of all unit commanders, first sergeants, trusted agents and legal office personnel.

Safeguard the sensitive medical information that testing may generate IAW AFI 33-332, _Privacy Act Program,_ and state code.

Ensure the MRO is notified in writing as soon as practicable, not to exceed seven days, when positive drug test results

are received.

The wing DDRPM shall receive all positive urinalysis results via secure military network email from DDRPM at the NGB

level. The wing-level DDRPM shall then forward the positive result to the wing commander, unit commander, Staff Judge

Advocate (SJA), and security forces commander on or before the next UTA after initial receipt of positive notification.

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Maintain appropriate statistical data as required.

Use the testing software to track individual(s) unavailable for testing because they cannot be located at the time, wing

shift workers, flying status, etc.

Ensure that before the actual collection process begins, observers read, understand, sign and date a Drug Testing Ob-

server's Briefing acknowledging their acceptance and understanding of their responsibilities and the consequences of

their actions for not performing their duties IAW established guidelines, as well as physically review the process involved

in observation and collection. These signed briefing forms must be maintained as part of the drug urinalysis testing file

IAW AFMAN 33-363, _Management of Records_.

**DRUG TEST PROGRAM ADMINISTRATIVE MANAGERS (DTPAM)**

DTPAMs will:

Coordinate drug testing activities with the DDRPM and other agencies as applicable.

Ensure specimens are collected, packaged, and transported to the drug testing laboratory according to the forensic re-

quirements of the AFI and applicable guidance.

In conjunction with the DDRPM, monitor the rate of untestable specimens and takes appropriate action to attain less

than one percent of specimens are untestable. Verify results are received for every specimen sent for testing, track out-

standing results and perform follow-up with the testing laboratory to resolve issues of turnaround times, outstanding

results and untestable specimens. Communicate findings and proposed resolutions to untestable discrepancies to the

DDRPM.

Ensure DDRP is conducted IAW with AFI, DoD and state requirements.

Safeguard the sensitive medical information testing may generate IAW AFI 33-332, _Privacy Act Program_ , and state code.

**GROUP, SQUADRON AND DETACHMENT COMMANDER**

Commanders have the authority to order drug testing for sweep testing, probable cause testing and commander-directed

testing. Sweeps will be contingent upon resources of the local DDRP. The commander will provide manning resources to

accomplish the appropriate testing.

Commanders ensure all unit military members, regardless of rank or status, are subject to inspection testing. Command-

ers are responsible for issuing written notification letters to members and for ensuring notification letters are appropri-

ately acknowledged (evidenced by date and time of acknowledgment, as well as the member's signature) and a copy of

such notification and acknowledgement letters are maintained within the unit IAW AFM 33-363.

Specimen collection is to be conducted on the day of selection. Once notified, members must report to the testing loca-

tion within two hours. Exceptions:

Commanders will permit personnel who must travel to the collection site more than two hours if required by distance

and/or traffic or weather conditions. Any such time extension must be noted in the _Notification of Selection to Provide a_ _Urine Sample_.

Personnel who are shift workers or who routinely work alternative duty weeks with weekends during the regular duty

week must report to the testing location within two hours of notification, as soon as possible upon returning to duty,

preferably the same day the member returns to duty.

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Commanders and/or first sergeants will coordinate such activities with the collector to ensure the member reports for

testing, within two hours of notification, as soon as possible upon returning to duty, preferably the same day the member

returns to duty.

Commanders must not notify members of their selection sooner than one hour prior to the available testing period.

Track individual(s) unavailable for testing because they cannot be located at the time, swing shift workers, flying status,

etc. Members who are on leave, TDY or deployed do NOT need to be kept on the due-back list.

Take appropriate administrative or UCMJ action against personnel who fail to report for testing without a valid reason

(leave, pass, TDY, quarters, flying status, crew-rest, missile duty or non-duty status). All actions taken by commanders

must be coordinated with the SJA to ensure the integrity of the program.

May order command-directed testing. Any command-directed drug testing must first be coordinated with the SJA.

Will appoint in writing a Trusted Agent who performs the following duties:

Receives and maintains rosters (IAW AFMAN 33-363) of individuals selected for urinalysis testing.

Notifies individuals selected for urinalysis testing no earlier than one hour before the scheduled starting collection time

and no later than one hour before the scheduled end of collection time. Does not make notifications by phone; individu-

als must come and be presented with the letter to be notified.

Returns the _Commander's Notification Letter_ to the collector with annotations of those members notified; those not notified; and/or those on leave, pass, TDY, quarters, flying status, crew-rest, missile duty or non-duty status, (with return dates)

by the time specified by the collector.

Provides observers who meet the qualifications as provided in AFI 90-507.

**THE STAFF JUDGE ADVOCATE (SJA)**

Performs and documents periodic, no less than annually, assessments of the drug testing program using DoDDs and DO-

DIs, AFIs, and/or appropriate checklists derived from these publications or other applicable publications. The report will

be discussed with wing leadership. Copies of the completed assessments will be sent to the AFDTL's legal advisor within

five working days of completion of the documentation. Ensures all phases of installation level drug testing program ( _i.e.,_ member selection, notification, sample collection, storage, packaging, and shipping) are forensically sound. Recommends

and ensures implementation of corrective actions to the DDRPM/DTPAM when necessary. Any observations which nega-

tively affect the integrity of the program must be communicated through appropriate channels to the MAJCOM SJA repre-

sentative, Office of the Judge Advocate General, Administrative Law Directorate (AF/JAA) and AFMOA/SGHW. The lo-

cal SJA will be responsible for performing no less than annually an audit of collection procedures at GSUs.

Advises commanders, the DDRPM, DTPAM and other installation officials and agencies regarding legal aspects of the

drug testing program. Advises and coordinates on all requests for urinalysis drug testing other than routine random in-

spection testing. Evaluates requests by service members for independent retests. Requests in writing to the appropriate

drug testing laboratory an extension to retain a positive specimen for administrative or UCMJ actions that will extend

beyond one year. The originating agency must specify a defined period of time ( _e.g.,_ six months). A request for indefinite retention will not be honored by the laboratory. At the end of this extension period, the SJA must advise the laboratory

every 60 calendar days of the need for further retention. The local SJA is responsible for notifying the drug testing laboratory when further retention of the specimen is no longer necessary. Will provide, in coordination with the DDRPM/

DTPAM, training sessions (as deemed appropriate by the SJA and DDRPM) for observers on the collection and observa-

tion processes for the drug urinalysis program.

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**AIRMEN**

When notified of random selection to provide a urine specimen, the selected military member must acknowledge receipt

of the written notification by endorsing with a signature. Military members selected for random drug testing must report

to the designated testing site within the time period provided in the written notification (must be two hours or less)

with their military identification (ID) cards and the signed written notification. The selected military member must re-

main at the testing site until he or she has provided an adequate urine specimen (minimum of 30 milliliters in one unin-

terrupted collection) and applicable documentation has been completed. Once this has been accomplished, the individual

may be released by testing site personnel. The only exceptions to the requirements of this paragraph are those military

members meeting the criteria listed in the Section on _Inability to Provide a Urine Specimen._

**CHAIN OF CUSTODY FOR COLLECTING AND TRANSPORTING URINE SPECIMENS**

**Required Specimen Bottle Information**

The DTPAM ensures the urine specimen bottle label contains the following information legibly annotated (recommend

that bottle labels be annotated with a ballpoint pen to avoid problems with ink smearing from felt-tip and similar pens):

Collection month, day, and year.

Installation Identification Number (BIDN), ensuring the proper prefix correctly identifies the status of the member ( _e.g._ , G–Air National Guard).

All digits of submitting member's social security number (SSN) or Military ID Number.

The member's initials (and date, when applicable) certifying the authenticity of the specimen, correctness of bottle infor-

mation and witnessing the application of the tamper evident tape.

The observer's initials and the date of observation.

No portion of the member's name (including signature) shall appear on the label.

**Required Ledger (Register) Information**

The DTPAM maintains the urinalysis ledger or register. Recommend that ledger documents be annotated with a ball-

point pen (where not typed) to avoid problems with ink smearing from felt-tip and similar pens. The ledger or register

documents each member submitting a urine specimen with the following minimum identifying information:

Month, day, year.

BIDN, batch number, specimen number.

All digits of the member's SSN. Member's rank.

Signature, initials, and printed name of the member.

The time at which the member provided the specimen to the DTPAM.

Signature, initials and printed name of the observer.

Test basis code.

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**DTPAM/Collector will:**

Visually inspect specimen bottles and ensure they are clean, free of debris and not damaged. Maintain drug testing sup-

plies in a limited access, secure area. Names of individuals having access to this area must be clearly posted and access to all others will be denied. Check the member's military ID card and document the information required. The DTPAM/

Collector will maintain possession of the member's military ID card until the collection process is completed.

Designate for the member providing a specimen an observer who is of the same gender and has not been chosen to pro-

vide a sample during the same collection time. Observers must be briefed on-site prior to the collection process about

their duties and responsibilities. This briefing remains current for the observer for a maximum of five calendar days, after which the briefing must be re-accomplished. This briefing must consist of a verbal explanation as well as a written statement signed and dated by the observer acknowledging their acceptance and understanding of their responsibilities and

the consequences of their actions for not performing their duties IAW established guidelines. ( _See_ Attachment 4 for a sample observer briefing letter.)

Apply the appropriate bottle label to the specimen bottle. Collector and member will verify the ledger and bottle informa-

tion are accurate. In the presence of the DTPAM/Collector and observer, have the individual inspect the bottle, ensuring

it is not damaged and is clean and free of any debris. Instruct the individual to carry the specimen bottle so it is in view of the observer at all times.

Direct the individual providing the specimen to remove bulky outer garments ( _e.g._ , ABU blouse) if direct observation by the observer may be impeded. Direct the individual to remove all genital body piercing jewelry. The donor must wash his

or her hands (with water only) after removal of any genital body piercing jewelry. No hats, purses, bags, briefcases or

other baggage may be brought into the collection room. Receive the urine specimen bottle from the member, visually

check for contamination and adulteration and ensure the urine volume is a minimum of 30 milliliters.

If there is inadequate volume, have the member who provided the specimen, under direct observation, discard the speci-

men and return the empty bottle to the DTPAM/Collector. The DTPAM/Collector will void the label on the bottle, and in

the ledger or register annotate Quantity Not Sufficient or QNS. The DTPAM/Collector will deface and discard the label

as well as the bottle. In the case of voided specimens, the information on the label and ledger or register must be re-

accomplished. If using automated labels, annotate the ledger or register including QNS and time, and reprint a new label

for the member. The member must remain in the collection facility until a 30 milliliter volume of urine can be produced

at one time.

If the individual provides an adequate volume of specimen, then in the presence of the member, ensure the cap is firmly

fixed, apply tamper-evident tape (conforming to the shape of the bottle to minimize tearing) extending from approxi-

mately halfway down and over the gummed label (not covering any identifying information) across the bottle cap, and to

an approximate midpoint on the other side of the specimen bottle, touching the label.

Have the member confirm the SSN and other identifying information on the specimen bottle are correct, that the mem-

ber witnessed the application of the tamper-evident tape and that the specimen in the bottle is that of the member. Then

have the member initial (and date, when applicable) the bottle label. Have the member initial and sign (payroll signa-

ture) by his or her printed name in the ledger after verifying the SSN annotated on the bottle label matches the entries in

the ledger or register. Have the observer initial (and date, when applicable) the bottle label on the line marked "OB

INIT" to certify the integrity of the collection process that the urine is that of the member. Have the observer print his or her name where designated in the ledger, initial and sign his or her signature next to the member's entry.

If the tape is broken during initial sealing in the presence of the member, or is later broken during subsequent repackag-

ing, reseal the bottle with tamper-evident tape. Do not place the tape directly over the original tape. The reapplication

should be slightly offset of the original taping, following the procedures above. When tamper-evident tape is reapplied,

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prepare a memorandum for record (MFR) describing the circumstance under which the tape was broken and by whom

the tape was reapplied, and attach it to the DD Form 2624, _Specimen Custody Document - Drug Testing._

If a second label needs to be placed over an existing label (e.g., label torn, writing smeared), prepare a MFR describing

the circumstance under which the label needed to be replaced and by whom the label was reapplied and attach it to the

DD Form 2624, _Specimen Custody Document - Drug Testing_. Do not place the label directly over the original label – the reapplication should be slightly offset of the original label. Ensure tamper-evident tape covers the second label. The use of

signature stamps or signatures replacement ( _e.g.,_ //SIGNED//) on MFR is prohibited. Place the specimen bottle(s) in a specimen box for sealing and shipment to the drug testing lab.

**The observer must:**

Be available for urinalysis drug testing whenever designated or ordered to perform observer duties.

Direct the member to rinse hands with only water and dry them before providing a specimen. Members may be allowed

to wash their hands with soap and water or hand sanitizer after providing a sample and securing the lid on the bottle.

Directly observe the urine leaving the member's body and entering the specimen bottle.

If a female member chooses to use the optional wide-mouth specimen container cup, the observer must directly observe

the following: the member providing the specimen, pouring the specimen into an approved specimen bottle and securing

the lid tightly to the bottle.

Ensure that the member providing the specimen secures the lid tightly on the bottle and that it is not reopened by the

member or anyone else at the collection site. Maintain the bottle in line of sight at all times. Members may be allowed to

clean their hands after providing a sample and securing the lid on the bottle.

Ensure the specimen bottle is returned to the DTPAM immediately after the urine collection or any attempted urine col-

lection that does not result in the required minimum 30 milliliters of urine during one attempt.

If less than the required 30 milliliters of urine is collected, the observer must escort the member to the DTPAM who will

verify the insufficient volume. The DTPAM, upon verification of insufficient volume, will direct the member to discard

the specimen. The observer must witness the discarding of the specimen by the member. The bottle will be returned to

the DTPAM who will dispose of the bottle IAW Occupational Safety and Health Administration (OSHA) guidelines.

Initial (and date, if applicable) the bottle label. Place tamper-proof tape to the bottle.

Sign, initial, and print his or her name in the ledger. This certifies that the observer directly witnessed the member urinating into the specimen bottle. If a wide-mouth cup is used for females, the observer is certifying she directly witnessed

the member urinating into the wide-mouth cup and transferring the urine into the specimen bottle.

**ADMINISTRATIVE DISCHARGE ACTION**

Air Force and ANG policy require that a commander initiate administrative discharge action against a member who pro-

duces a positive drug test unless the commander obtains a waiver from the discharge authority. For those members enti-

tled to a discharge board, a commander should consider recommending the member for an Under Other Than Honorable

Conditions Discharge (UOTHC). This is the worst type of administrative discharge a member can receive. As a result of

a UOTHC recommendation, some members will waive their right to the board in exchange for a General (Under Honor-

able Conditions) discharge. Such an offer by a member should be balanced against the cost and time involved in an ad-

ministrative discharge board. A member identified as wrongfully abusing drugs should not ordinarily be awarded an hon-

orable discharge in exchange for a board waiver. A commander should discuss all the options with the SJA. The ultimate

decision will be made by the separation authority.

_**Air National Guard Commander's Legal Deskbook**_

384

_**Chapter 10 Drug and Alcohol Abuse**_

_**Section 10-7 Urinalysis Program**_

_**Page 11**_

If a member who is entitled to a discharge board does not waive his right to the board, the board members must deter-

mine whether the member has committed the offense charged. If so, they must decide whether the member should be

discharged. A board may retain a member found to have used illegal drugs in very limited circumstances. If the board de-

cides to recommend the member be discharged, it must determine the characterization of discharge to recommend. In a

drug abuse case, an administrative discharge board may recommend a characterization of: Honorable; General Under

Honorable Conditions; or Under Other Than Honorable Conditions. (UOTHC). Command-directed, self-identification

and initial testing may not affect characterization of discharge.

**Honorable**. An honorable discharge is given when the military record of the member warrants the highest type of dis-

charge. As a rule, the member is entitled to full rights and benefits. However, eligibility for reentry into the military is not guaranteed. Honorable discharges are rarely, if ever, given in drug abuse cases. They should almost never initially be

recommended or be given for a conditional waiver of a board. They are mandatory however, if discharge is based solely

on a command-directed test.

**General (Under Honorable Conditions).** A General (Under Honorable Conditions) discharge is given when the mili-

tary record of the member is not sufficiently meritorious to warrant an honorable discharge but is not of such nature that

a discharge Under Other Than Honorable Conditions (UOTCH) is warranted. Usually, the member is entitled to full

rights and benefits. However, eligibility for reentry in the military may be affected. Should present or future statutes specifically require an honorable discharge as a condition precedent to receiving certain rights and benefits, eligibility for

these rights or benefits may also be affected.

**Under Other Than Honorable Conditions (UOTHC).** A discharge Under Other Than Honorable Conditions

(UOTHC) is given when the military record of the member warrants the least desirable administrative discharge charac-

terization available. Discharge under these conditions may deprive the member of certain benefits as determined by the

Veteran's Administration. The member is ineligible for reentry into the military.

Additional administrative actions include, but are not limited to, letters of admonishment, counseling and reprimands,

denial of re-enlistment, removal from Personal Reliability Program (PRP), removal from duties involving firearms, re-

moval from flying status or sensitive duties, suspension of security clearance and removal of restricted area badges. If

there are any questions regarding actions authorized for positive drug test results, consult the local servicing SJA.

Besides initiating administrative discharge action, a commander may want to take disciplinary action against the mem-

ber. This could be non-judicial punishment under the state military justice code. This option is unavailable in cases in-

volving only command-directed drug tests. Do not permit the member to resign or be discharged on grounds different

from the drug abuse in question. Consult the SJA before taking disciplinary action against a member with a positive drug

test.

**NOTICE OF A POSITIVE RESULT**

The medical facility will be notified first of a positive drug test. The DRPM should notify the SJA and the wing com-

mander. The wing commander should consult the SJA prior to notification of the member. The wing commander and the

SJA should discuss the available options. The wing commander should keep in mind that, unless she is willing to request

a special waiver, the member should be processed for an involuntary discharge.

Enlisted members with six years of good service and all non-probationary officers are entitled to an administrative dis-

charge board. These boards can be costly and are not often waived if the member has nothing to lose by going forward

with the board. To lessen the chance that a member who is entitled will request a board, the member should be notified

of the positive test in a formal setting. The member should be read his rights under Article 31. The goal is to persuade

the member to confess his wrongful drug use. For this reason, some units use their Security Forces investigators to pro-

vide the initial notification to the member and to conduct questioning.

_**Air National Guard Commander's Legal Deskbook**_

385

_**Chapter 10 Drug and Alcohol Abuse**_

_**Section 10-7 Urinalysis Program**_

_**Page 12**_

If a confession is obtained, it is unlikely the member will request a board. Even if the member does not confess, the mem-

ber may provide a story of how his test could be positive. This "story" could be used later at the board to discredit the

member. Accordingly, it is important to confirm as many details of the story as possible. Often, the details of the story

will not fit with the level of drug detected by the urinalysis and will be easily disproved at the board. Administrative discharge boards usually do not spend much time on a member they believe to be lying.

_**KWIK-NOTE: The drug testing program is very complicated and technical. A commander should consult the SJA whenever a**_

_**question arises.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Newcomer's Briefing

1-22

Veterans Benefits

4-8

Enlistment and Reenlistment 1-13 Evidence – Differing Standards and Burdens of Proof

8-4

Chain of Custody

8-5

Confessions

8-10

OSI and SF Reports

8-14

Inspections and Searches

8-16

Driving While Intoxicated and Other Offenses Involving Intoxication

8-17

Drug and Alcohol Abuse Control Committee

10-2

Drug Abuse

10-4

Steroids

10-5

Consent Urinalysis Tests

10-8

Command Directed Urinalysis

10-9

Status of National Guard Members

11-7

Boards – Investigative

16-4

Investigations by Commander of Suspected Minor Offenses

16-10

Legal Assistance to Unit Members and the Role of the Judge Advocate to the Commander

17-9

Preventive Law Program

17-15

Staff Assistance Visits – Judge Advocate

17-16

Witness Preparation

17-18

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Revocation of Security Clearance

24-13

_**Air National Guard Commander's Legal Deskbook**_

386

_**Chapter 10 Drug and Alcohol Abuse**_

_**Section 10-7 Urinalysis Program**_

_**Page 13**_

_Attachment 1_

**SAMPLE LETTER:**

**DRUG TESTING OBSERVER'S BRIEFING**

_**PRIVACY ACT STATEMENT.**_ **Warning:** _This document may contain FOR OFFICIAL USE ONLY (FOUO) and/or Privacy Act information exempt from mandatory disclosure under the Freedom of Information Act. If so, exemption 5 U.S.C. 552 (b)(6) applies. This document may also contain personal information that is protected by the Privacy Act of 1974 as amended, which must be protected IAW DoD_

_5400 - 11R, and/or sensitive information that is being e-mailed as the most convenient method of transacting business. As such, it must be_ _safeguarded from unauthorized disclosure. This information may be provided to appropriate Government agencies when relevant to civil,_ _criminal or regulatory investigations or prosecutions. The Social Security Number, authorized by Public Law 93-579 Section 7 (b) and_ _Executive Order 9397, is used as a unique identifier to distinguish between employees with the same names and birth dates and to ensure_ _that each individual's record in the system is complete and accurate and the information is properly attributed._

1. You must be of the same sex as the member being observed and you must not be scheduled to provide a sample on the

same day on which you are to observe specimen collection.

2. You may not be an observer if you have an unfavorable information file or if an action under the UCMJ or an adverse

administrative action is pending against you. Nor may you be an observer if you have a recent record (within five

years) of conviction by courts-martial or civilian criminal court for matters not involving dishonesty, fraud, or drug

abuse. Additionally, you are ineligible if you have a record of conviction by courts-martial or civilian court or have re-

ceived non-judicial punishment under Article 15, UCMJ, or a Letter of Reprimand or similar administrative action (Let-

ter of Admonishment, Letter of Counseling) for misconduct involving dishonesty, fraud, or drug abuse (including use,

possession, or distribution).

3. You may not be an observer if you are within one (1) year of either separation or transfer from an active participation

status.

4. You may not be an observer if you are on a medical profile that will prevent you from performing your assigned duties

as an observer.

5. You must observe the member receive the empty specimen bottle from the drug testing monitor and you must enter

the rest room with the member. You must direct the member to wash his/her hands with only water then dry them

prior to providing a specimen (they may wash their hands with soap and water after providing a sample and securing

the lid on the bottle). You must observe the member urinating directly into the labeled specimen bottle and capping it.

If a female chooses to use the optional wide-mouthed sterile collection cup, you must directly observe the member pro-

viding the specimen, pouring the urine into the labeled specimen bottle and capping it. As an observer, you are re-

quired to ensure that the specimen provided is not contaminated or altered in any way.

6. You will stay with the member until ready to exit the bathroom. Neither the member nor the specimen bottle can be

out of your sight at any time. You will observe the member carry the specimen bottle out of the bathroom and hand it

to the drug testing monitor. You will observe the member initial and date the specimen bottle label. You will then ini-

tial and date the bottle label. NOTE: DO NOT HANDLE THE SAMPLE AT ANY TIME UNTIL IT IS TIME TO INI-

TIAL THE LABEL.

7. You will print your name where designated in the ledger. Initial and sign your payroll signature next to the member's

entry.

8. You will observe the drug testing monitor apply the tamper-proof tape to the bottle and print and sign your name and

initials on the log.

_**Air National Guard Commander's Deskbook**_

387

_**Chapter 10 Drug Abuse**_

_**Section 10-7 Urinalysis Program**_

_**Page 14**_

9. You will report all incidents of suspected abuse, adulteration, or unusual behavior, by the member being tested to the

DTPAM or DDRPM, and the legal office immediately. You will be required to document your report in a memorandum

for record.

10. Provide your signature and other information below acknowledging that you have read and understand your duties as

an observer and may be called upon to testify as a witness in legal proceedings.

DATE PRINTED

NAME

RANK

SSN

SIGNATURE

INITIALS

____________________________________________________________________________________________________________

_**Air National Guard Commander's Deskbook**_

388

_**Chapter 10 Drug Abuse**_

_**Section 10-7 Urinalysis Program**_

_**Page 15**_

_Attachment 2_

**SAMPLE LETTER:**

**COMMANDER'S ORDER**

[DATE] MEMORANDUM FOR (RANK, FIRST NAME, LAST NAME)

FROM: **/CC

SUBJECT: Notification of Selection to Provide a Urine Specimen -- Inspection Testing

1. You have been selected to provide a urine specimen for drug testing purposes. Compliance with AFI 90-507 requires

that you:

a. Report to (building, room, time, and date for test) with this notification letter and Military ID card.

b. Surrender your ID card upon arrival at the testing location and remain at the testing location until you have provided

your urine specimen. When your ID has been returned to you, and you have been given permission to leave.

c. Remove bulky outer garments (e.g., ABU blouse) to prevent direct observation by the observer from being impeded.

d. Remove all genital body piercing jewelry.

e. Wash your hands (with water only) after removal of any genital body piercing jewelry.

f. No hats, purses, bags, briefcases, or other baggage may be brought into the collection room.

g. Be observed urinating directly into the bottle, or other receptacle, provided to you for collecting the urine specimen.

h. Avoid contaminating the specimen. Fill the bottle, or other receptacle provided to you, with a minimum of 30 millili-

ters of your urine.

2. Failure to comply with these instructions in any way may result in disciplinary action against you under the Uniform

Code of Military Justice. You will acknowledge that you have read this order and understand it by signing below.

SARAH J. ANYBODY, Col, USAF Commander

1st Ind, (Rank, First Name, Last Name) TO: **/CC I have read and understand this notification. I further understand

that failure to comply with this notification in any way may result in disciplinary action under the UCMJ.

Date/Time Notified: (First Name, Last Name, Rank)

_**Air National Guard Commander's Legal Deskbook**_

389

_**Chapter 10 Drug Abuse**_

_**Section 10-7 Urinalysis Program**_

_**Page 16**_

_Attachment 3_

**REQUESTING STEROID TESTING**

DATE

MEMORANDUM FOR AFMOA/SGHQ

FROM: (REQUESTING UNIT'S COMPLETE MAILING ADDRESS)

SUBJECT: Request for Steroid Testing

1. Request approval to be granted for the testing of (specify number) specimens for the presence of steroids.

2. (Provide justification to include the member's SSN and gender).

3. (Indicate POC and phone number).

Signature Block of DRPM

**PERSONAL DATA – PROTECTED UNDER THE PRIVACY ACT OF 1974 (5 USC, 552a).**

**FOR OFFICIAL USE ONLY**

_**Air National Guard Commander's Legal Deskbook**_

390

_**Chapter 10 Drug Abuse**_

_**Section 10-7 Urinalysis Program**_

_**Page 17**_

_Attachment 4_

**DRUG URINALYSIS SPECIMEN PACKAGING/SHIPPING CHECKLIST**

To absorb leakage and prevent damage, place a sufficient amount of flat absorbent pads (NSN 6530-01-304-9754 or

equivalent) in the box prior to sealing.

Place the specimen bottles into the unused specimen box (NSN 6640-00-165-5778) ensuring that the tamper-proof tape

is intact.

Complete and sign the DD Form 2624 ensuring that the specimens listed on the form match the bottles that are in the

box.

Place the DD Form 2624 and any Memorandum for Records (MFRs) inside a sealed leak-proof plastic bag within the

box.

Seal all sides, edges, and flaps of the box with adhesive tape. Apply one piece of tape around the center opening of the

box so that it covers the opening flap on the top and bottom of the box and completely encircles the box. Tape must also

encircle each end of the box that has an opening so that the edges are completely covered and sealed.

Sign payroll signature across the tape once on the top and once on the bottom of the box. The payroll signature must

cross from the tape to the box in at least one location on each the top and bottom. The manufacturer's tape on a speci-

men box is considered part of the box. The manufacturer's tape is not considered part of the tape that must be placed

completely around the box.

Place the sealed box in a leak preventive mailing pouch (NSN 6530-01-304-9762 or equivalent). The sealed pouch must

be wrapped in postal mailing paper if not placed in a second container.

Address the package to: HQ Air Force Drug Testing Laboratory (AFMOA/SGBD) 2480 Ladd Street, Bldg 3750, Lackland

AFB, TX 78236-5310.

Ship the package within two duty days of collection date. (Failure to ship within two duty days will not result in an untes-

table discrepancy; however, proper chain of custody must be maintained.) Specimens not mailed within two working

days will require a MFR explaining the reason for the delay. The MFR must be forwarded to the servicing SJA, and a copy

of the MFR must be retained on file for three years.

Mail in accordance with acceptable Modes of Transportation.

_**Air National Guard Commander's Deskbook**_

391

_**Chapter 10 Drug Abuse**_

_**Section 10-7 Urinalysis Program**_

_**Page 18**_

_Attachment 5_

**QUESTIONS AND ANSWERS ABOUT THE AIR FORCE/AIR NATIONAL GUARD DRUG TESTING**

**PROGRAM**

**1. WHAT IS THE AIR NATIONAL GUARD'S POLICY ON DRUG ABUSE?**

The policy on drug abuse is to maintain standards of behavior, performance and discipline necessary for mission accom-

plishment. The illegal or improper use of drugs by Air National Guard members can seriously damage physical and men-

tal health, jeopardize an individual's safety, the safety of others and mission requirements. Drug abuse is incompatible

with the Air National Guard standards of conduct. The Air National Guard is responsible for helping to prevent drug

abuse among its members, and for identifying, disciplining and separating those who promote the illegal or improper use

of drugs. A positive result from urinalysis testing is considered evidence of drug abuse.

**2. HOW ARE THE SPECIMENS TESTED?**

The testing of specimens is very scientific and there are many terms and procedures a layperson may not be familiar

with. Briefly, testing is very accurate and a test is rated as positive at a level that will leave no doubt the individual has ingested drugs.

Urine samples sent to the Air Force Drug Testing Laboratory are tested a minimum of three times before they are de-

clared positive. The first test administered on a portion of the urine is called a screening test. If the screening test is negative, no further testing is conducted. If that test is positive a second test is performed. The second test is called a re-

screen test. If the second test is negative, no further testing is done. If it is positive, a third portion of urine is tested using a third test. The third test is called the confirmation test. It is a highly sensitive, state-of-the-art test and looks for evidence of a specific drug. If the confirmation test is negative, the entire urine sample is considered negative. If it is positive, the base where the sample came from is notified of a positive drug test.

Listed below are the drugs tested for, the screen/re-screen cut-off levels, and the confirmation cut-off levels:

DRUG

SCREEN/RE-SCREEN CUT-OFF

CONFIRMATION CUT-OFF

Marijuana

50 ng/ml

15 ng/mL

Opiates

2000 ng/mL

Codeine 2000 ng/mL

Morphine 4000 ng/mL

Heroin 10 ng/mL

Cocaine

150 ng/mL

100 ng/mL

Amphetamine

500 ng/mL

100 ng/mL

Methamphetamine

500 ng/mL

100 ng/mL

Barbiturates

200 ng/mL

200 ng/mL

LSD

0.5 ng/mL

0.2 ng/mL

PCP

25 ng/mL

25 ng/mL

**3. DO MEMBERS WHO TEST POSITIVE HAVE THE OPTION OF BEING RETESTED?**

All positive urine sample bottles with the remaining urine are maintained at the Drug Testing Laboratory and are avail-

able for re-testing at the member's expense.

**4. ARE THERE ANY LEGITIMATE REASONS FOR A MEMBER NOT TO TAKE A TEST?**

No. People will resist testing for a variety of reasons; however, all members in the military pay status who report for duty

_**Air National Guard Commander's Deskbook**_

392

_**Chapter 10 Drug Abuse**_

_**Section 10-7 Urinalysis Program**_

_**Page 19**_

and are ordered to test must test. Members who are using prescribed medication must inform the DTPAM prior to test-

ing. However, the drug tests at the Drug Testing Laboratory are very specific. They do show positive unless the drug they

are looking for is present in the urine.

**5. WHAT IS THE ANG'S ROLE IN DRUG REHABILITATION?**

Neither the National Guard Bureau nor the states have the resources to maintain drug rehabilitation. Members who test

positive should be offered a counseling session with the Behavioral Health Office. This counseling session will be for re-

ferral to a rehabilitation program in the local community.

**6. CAN A MEMBER ALTER A TEST RESULT?**

No, so long as the observer diligently performs his duties and maintains a positive line of sight on the urine bottle at all times. There is nothing an individual can consume prior to a test that will mask the presence of a drug. The tests are

very specific and look for evidence of the drug. The presence of some other substance will not alter the tests. If a member

is taking a prescription drug, the prescription drug will not be a factor unless it contains one of the drugs the Drug Test-

ing Laboratory is looking for.

**7. WHAT IS THE AUTHORITY FOR MY ADMINISTRATIVE DISCHARGE IF I TEST POSITIVE?**

The authority for separation is AFI 36-3209. Commanders must initiate involuntary discharge action against a member

who wrongfully uses an illegal drug. The only exception would be if the commander requests and receives a waiver from

a higher authority.

**8. HOW CAN I ENSURE MY URINE SAMPLE IS MINE AND NOT MIXED UP WITH SOMEONE ELSE?**

If the proper testing procedures are followed a mix-up should never occur. When you provide your sample pay particular

attention to the DTPAM's actions. Make sure the information on the ledger and on your sample bottle is the same. Do

not let the bottle out of your sight until the tamper-resistant tape is placed on it and you initial the label on the bottle.

**9. WHAT TYPE OF ADMINISTRATIVE OPTIONS DOES THE COMMANDER/SUPERVISOR HAVE WHEN A**

**TECHNICIAN TESTS POSITIVE FOR AN ILLEGAL DRUG?**

Although the Drug Testing Program is strictly a military program, the testing program has a potential impact on ANG

members who are full-time civilian employees of the ANG. Like traditional members, a full-time member who tests posi-

tive for an illegal drug will be processed for discharge. Once a full-time member loses military status, they will be termi-

nated. The full-time employment is conditioned on continued military status.

**10. CAN A COMMANDER TEST AN ENTIRE SQUADRON OR SECTION?**

Commanders have authority to order an inspection of a partial/entire unit any time. Ordering a unit-wide drug test is a

type of inspection done for the health and welfare of the unit and must not be conducted to target an individual member.

**11. CAN A COMMANDER REQUIRE A SPECIFIC INDIVIDUAL TO TEST?**

If there is probable cause or a reasonable suspicion a member is using illegal drugs, the commander can order that the

member provide a urine sample for testing. If there is probable cause (reasonable belief the member is using drugs) the

commander will order the test based upon the commander's authority to order a search and seizure of the member's

urine. If the commander has a reasonable suspicion, the commander will command-direct the member to provide a sam-

ple for testing. A commander who wishes to order a member to provide a urine sample for testing will coordinate with

the SJA before issuing this order.

_**Air National Guard Commander's Deskbook**_

393

_**Chapter 10 Drug and Alcohol Abuse**_

_**Section 10-8 Consent Urinalysis**_

_**Page 1**_

**Consent Urinalysis**

**Updated by Lieutenant Colonel Michelle Hagel, January 2018**

**AUTHORITY:** AFI 90-507, _Military Drug Demand Reduction Program_ (22 Sep 2014, incorporating change 14 Mar 2017); Military Rule of Evidence 314(e); DoD Directive 1010.1 (9 Dec 94, incorporating change 11 Jan 1999); and applicable

state law. 

## INTRODUCTION

The authorized methods for selecting a member to provide a urine sample for drug testing are as follows:

Inspection, either by random selection or as a unit sweep for health and safety reasons.

A search and seizure based upon probable cause.

A command-directed urinalysis.

A member consents to provide a urine sample for testing.

To be valid, consent must be given voluntarily. Voluntariness is to be determined from all the circumstances. Although a

person's knowledge of the right to refuse to give consent is a factor to be considered, it is not required to prove such

knowledge to establish voluntary consent. Mere submission to the color of authority of personnel performing law en-

forcement duties or acquiescence in an announced or indicated purpose to search is not voluntary consent.

In other words, in order for a consent to provide a urine sample for testing to be valid, the member must be doing so,

not because he thinks he will be ordered to do so whether he agrees or not, but because he genuinely wishes to consent.

Further, consent means the member has not been threatened or forced to cooperate.

It should be noted that a urine specimen collected as part of a patient's routine or emergency medical treatment, includ-

ing routine physical examinations, may be subjected to urinalysis drug testing. Specimens from an exam for a valid medi-

cal purpose may be used for any lawful purpose. However, drug testing is incident to the medical treatment. Medical

treatment may not be used as subterfuge to collect a urine sample for the specific purpose of drug testing.

**WHEN TO SEEK CONSENT**

Although you may have a valid reasonable suspicion (command directed) or even probable cause to obtain a urine sam-

ple for testing, it is always prudent to seek the member's consent. Reasonable suspicion or probable cause may be chal-

lenged, but if properly obtained, it is very difficult to defeat the validity of a consent search.

**WHY OBTAIN CONSENT**

By obtaining consent, the results may be used for disciplinary or administrative actions, including a possible UCMJ ac-

tion and adverse characterization of administrative discharges. This provides the commander with a full range of options

if the drug tests results return as positive.

**HOW TO OBTAIN CONSENT**

**Always** consult your SJA before attempting to get consent from a member. Only commanders or authorized security po-

lice (OSI) personnel should seek consent. Consent must be voluntary and the circumstances and atmosphere in which it

is obtained must be conducive to voluntariness. The member should not be intimidated, threatened or coerced. If

_**Air National Guard Commander's Legal Deskbook**_

394

_**Chapter 10 Drug and Alcohol Abuse**_

_**Section 10-8 Consent Urinalysis**_

_**Page 2**_

challenged in a judicial or administrative proceeding, the government has the burden of proving the consent was volun-

tary.

The following suggestions are provided to ensure the consent is obtained voluntarily:

Request the member's consent in your office. Avoid the member's embarrassment or peer pressure to say yes or no by

seeking the consent in front of other unit members.

Seek consent from the member in the presence of at least one witness. If the member is an officer, the witness should be

an officer. If the member is enlisted, the witness should be your first sergeant or NCO of higher rank than the member.

Explain to the member your reason for requesting the consent to search. Do not tell the member that you will obtain the

urine sample whether the member consents or not. This will affect the voluntariness of the consent. Of course, if the

member does refuse, you will either order a command-directed test or a probable cause test.

You are not required to advise the member of the right to consult with counsel before deciding whether to consent. How-

ever, evidence that a member was read these rights may be used to help demonstrate that consent was truly voluntary.

Do not keep the member in your office for an unreasonable length of time while trying to obtain the consent. Ten min-

utes should be all the time necessary to explain why you are seeking consent. This time limit is not absolute. Circum-

stances may cause it to vary. The more time you spend in your office seeking to obtain consent, the greater the potential

for a successful claim that the consent was involuntary.

If the member refuses to give consent, do not ask again.

If the member says yes, give the member a written consent form to read and sign. An oral consent is valid, however, it is

always better to get it in writing. You and the witness should sign it in the presence of the member. Attachment 1 to this

topic is a sample form which incorporates the necessary provisions to best ensure a valid voluntary consent. If the test is

positive, the written consent can be used as evidence if the member later claims the consent was involuntary.

Keep the original consent form in a secure place and provide a copy to the member.

After the member has consented, the member should be escorted to the medical facility to provide the urine sample.

There should be no delay in testing. Previous arrangements should have been made with the medical facility.

_**KWIK-NOTE: Never seek consent from a member to take a urinalysis test without first consulting with your SJA. Review**_

_**state law for any special requirements to obtain valid consent of a member to take a urinalysis test.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Evidence – Differing Standards and Burdens of Proof

8-4

Inspections and Searches

8-16

Driving While Intoxicated and Other Offenses Involving Intoxication

8-17

Drug Abuse

10-4

Drug Abuse – Administrative Discharge Policy

10-6

Urinalysis Program

10-7

Command Directed Urinalysis

10-9

Commander's One-on-One Meeting with Member – Precautions

16-5

_**Air National Guard Commander's Legal Deskbook**_

395

_**Chapter 10, Drug and Alcohol Abuse**_

_**Section 10-8 Consent Urinalysis**_

_**Page 3**_

**CONSENT TO PROVIDE URINALYSIS SAMPLE FOR TESTING**

I (name, rank, SSN, unit) have been asked by my commander to voluntarily consent to provide a sample of my urine to

be tested for the presence of illegal drugs.

I have been told by my commander and I understand that I cannot be nor have I been required, ordered, directed, com-

pelled, coerced, forced or unduly influenced to voluntarily consent to provide this sample, nor can there by any adverse

consequences of any kind to me for refusing to voluntarily consent to provide a sample of my urine.

I also state that I have never been offered or promised, nor will I receive any rewards, favors, compensation, benefits, or

special consideration to induce me to voluntarily consent to provide a urine sample, whether or not my test results are

positive for illegal drugs.

I understand that if I voluntarily consent to provide a urine sample and the results of the test of that sample are positive for illegal drugs:

1. I will be immediately processed for administrative discharge from the Air National Guard and as a Reserve of the Air

Force;

2. The character of the discharge recommended may be Under Other than Honorable Conditions (UOTHC);

3. Whatever rights I may have to an administrative discharge board are independent of my consent to provide the

sample;

4. My consent to provide the sample does not relieve the government of proving its case against me in the administrative

discharge proceeding;

5. If I am discharged it will be because of illegal drug use;

6. After discharge I will probably not be permitted to reenter the military service in any component or service; and

7. If I receive a UOTHC discharge, I may not be entitled to certain benefits from the Veterans Administration or

otherwise that I might have been entitled to had I received a higher character of discharge.

I further understand that the effects of a positive test result if my sample is given on consent are the same as if I provided the sample as a result of random selection, a group health and safety inspection, if the commander had probable cause to

believe I had illegally used drugs, or as part of a routine medical examination or emergency medical treatment.

I have read and understand this statement, and I have had ample time to consider my decision to consent to provide a

sample for testing for illegal drugs. I hereby voluntarily consent to provide a sample of my urine for testing for the pres-

ence of illegal drugs.

_______________________

_________________________

___________________

Member's Name (Printed)

Signature

Date

_______________________

_________________________

___________________

Commander (Printed)

Signature

Date

_______________________

_________________________

___________________

Witness (Printed)

Signature

Date

_**Air National Guard Commander's Legal Deskbook**_

396

_**Chapter 10 Drug and Alcohol Abuse**_

_**Section 10-9 Command-Directed Urinalysis**_

_**Page 1**_

**Command-Directed Urinalysis**

Updated by Lieutenant Colonel Michelle Hagel, January 2018

**AUTHORITY:** AFI 90-507, _Military Drug Demand Reduction Program_ (22 Sep 14, incorporating change 14 Mar 17); **** AFI 44-121, _Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program_ (8 July 14). 

## INTRODUCTION

While the subject of this topic is also mentioned in the topic in this _Deskbook_ entitled _"URINALYSIS PROGRAM,"_ its uses and potential for abuse are of sufficient importance to warrant its own separate topic.

Before command directing a urinalysis test, you should consider two questions. May you do it? Should you do it? The

authority to command direct a test is a powerful tool. It should NEVER be exercised without prior consultation with

your Staff Judge Advocate.

**MAY YOU DO IT?**

Commanders (and ONLY commanders – not staff officers regardless of rank, and not first sergeants or other supervisors)

have the authority to direct members of their command to provide a urine sample for urinalysis testing when they have a

REASONABLE SUSPICION of the member's drug abuse.

"Reasonable Suspicion" has been defined to be an ordinary or rational belief or opinion based upon facts or circum-

stances which amount to only slight evidence or no real proof. It is LESS evidence than "probable cause."

"Reasonable Suspicion" may be substantiated by the member's display of aberrant, bizarre, unusual or unlawful behavior

which leads the commander to suspect the member is illegally using drugs. Such behavior may include unauthorized ab-

sences, violations of safety requirements, disobedience of orders or regulations, apprehension or investigation for drug

offenses or intoxicated driving, involvement in crimes of violence or other incidents involving repeated or serious

breaches of discipline. This list is not all-inclusive. You should consider your past direct or indirect knowledge of the

member. Under appropriate circumstances the member's current behavior may provide you with reasonable suspicion of

illegal drug usage if you reasonably conclude "something just isn't right" with the member's behavior.

**SHOULD YOU DO IT?**

Before addressing this question, a commander should know the consequences of a command-directed test.

**CHARACTER OF DISCHARGE**

If a member's command-directed urinalysis is positive, administrative discharge action should be initiated. The charac-

terization of a discharge based solely on positive results from a command-directed urinalysis MUST BE HONORABLE.

**DISCIPLINARY ACTION**

Command-directed test results cannot be used to take disciplinary action, such as a court-martial or non-judicial punish-

ment, against the member. Nevertheless, even though the results may not be used in a disciplinary action or to character-

ize a discharge in a separation action, the results may be used in any proceeding to impeach or rebut evidence of drug

abuse or lack of drug abuse when such information is first introduced by the member.

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_**Chapter 10 Drug and Alcohol Abuse**_

_**Section 10-9 Command Directed Urinalysis**_

_**Page 2**_

**REFUSALS**

You cannot force a member to provide a urine sample. If a member refuses to provide a urine sample after receiving a

valid order to do so, the member is subject to discharge in accordance with AFI 36-3209. The basis for the discharge is

serious misconduct resulting from failure to obey a lawful order.

**ALTERNATIVES TO COMMAND-DIRECTED TESTS**

As stated previously, the commander has the power to command direct a test. However, the commander should consider

other alternatives because positive test results from command-directed tests preclude disciplinary action based on the

results and mandate honorable discharges if the positive result is the only basis for discharge. The best alternative is to

ask the member to consent to a urinalysis. Assuming the consent is valid ( _i.e.,_ truly voluntary), the test results may be used for disciplinary action and to characterize a discharge. (A sample consent form is attached to the section in this

chapter entitled, " _CONSENT URINALYSIS_.")

Before asking a member to consent to a urinalysis, you should consult your Staff Judge Advocate to determine whether

adequate grounds exist for a "probable cause" urinalysis. That way, if the member refuses to consent to a urinalysis, you

may proceed using a search authorization (warrant) for a urinalysis. If the member has refused to consent and there is

insufficient evidence to support probable cause, then a command-directed test is appropriate.

**DOCUMENT "REASONABLE SUSPICION"**

If, after considering other alternatives, the commander decides to command direct a urinalysis, he or she should obtain

statements (sworn and in writing) and any other available evidence that form the basis for the commander's determina-

tion of reasonable suspicion of drug use. Prepare a memorandum, with the advice of the SJA, showing how this evidence

provided the required reasonable suspicion. The memo may be needed later if there is a challenge about whether the test

was lawfully ordered.

**CONDUCT THE TEST AS SOON AS POSSIBLE**

If the member is not on base, you must order the member to military status to command direct the urine sample. Your

state law should give you authority over members of your unit at all times. Do not delay because the information that

provided the reasonable suspicion may grow stale and the chances of a positive test may degrade. You may need to make

special arrangements with the Medical Urine Testing Program Monitor to conduct the test since it is not taking place dur-

ing the regular monthly testing time.

**SUGGESTED STEPS TO FOLLOW**

Listed below are four steps a commander should follow to remove a member who is using illegal drugs. If followed, these

steps should provide the best options, given the facts, for removal of a member in the shortest possible time and with an

appropriate characterization of discharge:

If there is sufficient evidence of drug abuse (misconduct) without obtaining a urine test, then there is no need to do a

test. If you decide a test is necessary, consider the next steps.

Obtain the member's consent to provide a urine sample, even if you have a reasonable suspicion or probable cause.

If the member will not consent and you have probable cause, prepare an AF Form 1176 and order the test.

If no consent or probable cause but you have a reasonable suspicion, then command direct the drug test.

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_**Chapter 10 Drug and Alcohol Abuse**_

_**Section 10-9 Command Directed Urinalysis**_

_**Page 3**_

**ISSUES TO CONSIDER**

If a commander does not have a reasonable suspicion or probable cause, do not request a member's consent. If the mem-

ber refuses, you have no alternative and it could adversely impact your authority.

Any time an individual is ordered to provide a sample and the member refuses, process the member for discharge for mis-

conduct (failure to obey a lawful order).

When you contemplate asking a member to consent to a drug test, review the material in this _Deskbook_ entitled, _"CONSENT URINALYSIS."_ **Always** consult your SJA.

Anytime you consider obtaining a urine sample using any of the methods discussed here, consult your SJA and review

the _Deskbook_ section _"URINALYSIS PROGRAM."_

_**KWIK-NOTE: Command-directed urinalysis test should in most, if not all cases, be the commander's LAST OPTION among**_

_**methods of selection of members for urinalysis testing.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Evidence – Differing Standards and Burdens of Proof

8-4

OSI and SF Reports

8-14

Inspections and Searches

8-16

Driving While Intoxicated and Other Offenses Involving Intoxication

8-17

Drug Abuse

10-4

Drug Abuse – Administrative Discharge Policy

10-6

Urinalysis Program

10-7

Consent Urinalysis

10-8

_**Air National Guard Commander's Legal Deskbook**_

399

**Chapter 11, Duty Status Matters**

**Table of Contents**

**Section**

11 - 1 Table of Contents

11 - 2 Status of National Guard Members

11 - 3 State Active Duty

11 - 4 AGR Program

11 - 5 Enforceability of Orders by Air Force Officers to ANG Personnel Not in Federal Service

11 - 6 Relationship with Other Military Components

11 - 7 Deleted

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 11, Duty Status Matters**_

_**Section 11-2 Status of National Guard Members**_

_**Page 1**_

**Status of National Guard Members**

**Updated by Colonel Marshall Wilde, December 2014**

**AUTHORITY:** 10 U.S.C. 12301, 12302, 12303, 12304; Title 32, United States Code; _Tennessee v. Dunlap,_ 426 U.S. 312

(1976); DoD Directive 215.13, _Reserve Component Member Participation Policy_ (11 May 09); AFI 33-328, _Administrative Orders_ (16 Jan 07); AFI 51-504, _Legal Assistance, Notary, and Preventive Law Programs_ (27 Oct 03); AFI 36-2002, _Regular Air Force and_ _Special Category Accessions_ (7 Apr 1999); AFI 36-2116, _Extended Active Duty for Reserve Component Officers_ (1 Nov 97); AFI 36-2008, _Voluntary Extended Active Duty (EAD) for Air Reserve Commissioned Officers_ (5 Nov 02); ANGI 36-2001, _Management of_ _Training and Operational Support Within the Air National Guard_ (19 Oct 09); OpJAGAF 1970/58, _Air National Guard_ (31 Mar 70). 

## INTRODUCTION

One of the most important issues in determining the power of the commander to command the members of a National

Guard Unit is a determination of the status of its members. The status of National Guard members determines com-

mand relationships, jurisdiction for administrative and criminal matters, as well as medical benefits if injury or liability.

Members of the Air National Guard are part of the state militia. While the unit is organized, armed, and equipped wholly

or partly at federal expense and is federally recognized, it remains a state organization under the command and control of

state authorities, except when federalized. Section 8, Article I, of the United States Constitution provides the authority

for the establishment of the militia, training, and appointment of officers. Pay, benefits, discipline, and command relationships differ based on the status of the member.

**TYPES OF STATUS**

As a result of this constitutional charter, members of the National Guard serve their state and their country in a number

of different roles. Depending on their "status" while performing those roles, their rights, obligations and responsibilities will vary. Members of the National Guard are usually in one of three statuses:

1. State Active Duty under state law;

2. Active federal service under Title 10 U.S.C.; and

3. Inactive Duty Training or Full-Time National Guard duty (FTNGD) under Title 32 U.S.C.

**STATE ACTIVE DUTY**

When evaluating options for using National Guard assets, commanders should use state active duty (SAD) if the antici-

pated activity is purely a state function. Under state active duty, injury to members is strictly subject to any benefits provided under state law. The state may be responsible for loss or damage to equipment and may have an obligation to reim-

burse the federal government for these losses. Members may accrue no federal military pay or retirement benefits and

may be unable to attend UTAs while in state active duty status. SAD is discussed in detail in Deskbook Section 11-03.

**ACTIVE FEDERAL SERVICE**

If the mission of the unit is "active federal service" under Title 10, the members have all the protections of being on ac-

tive duty and all the responsibilities of an active duty airman. They are subject to the Uniform Code of Military Justice

(UCMJ) and may be punished under its rules. They may or may not be subject to various statutory ethics prohibitions.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 11, Duty Status Matters**_

_**Section 11-2 Status of National Guard Members**_

_**Page 2**_

Members have certain re-employment rights and are covered by the Uniformed Services Employment and Reemployment

Rights Act (USERRA) and the Servicemember's Civil Relief Act (SCRA). When a mission is being performed outside the

United States, members of the unit must have orders stating they are performing duty under Title 10 and they are sub-

ject to the UCMJ. In fact, a member may be subject to both the UCMJ and state law. Commanders should review these

issues with their staff judge advocate to ensure a full understanding of this matter.

There are many types of active duty. Air National Guard members may be placed on active duty under Title 10 of the

United States Code in a number of ways, including the following:

**1. Voluntarily with consent of the member and the governor under 10 U.S.C. 12301(d)**. Members continue to

count against Reserve Component end strength. 10 U.S.C. 12301(d) authorizes the Secretary of the Air Force (or desig-

nated authority) to order an Air National Guard member to active duty with the consent of the member and the gover-

nor, or to order a member retained on active duty, with the consent of the member. OCONUS missions are done in a Ti-

tle 10 status. Members who perform training tours at active duty bases in the CONUS usually do so in state-

commanded, federally funded status pursuant to Title 32.

Some ANG members may be called to voluntary Title 10 CONUS duty upon the occurrence of a triggering event. First

Air Force has a system of instantaneous recall that requires Guardsmen to maintain signed volunteer statements for acti-

vation in the event of an air sovereignty event. The governors of the states with such 1st AF units also sign memoran-

dum of agreements granting activation consent for air sovereignty events. During a declared event, effected Guardsmen

(mainly pilots and some ground personnel) go from Title 32 to Title 10 status under a 10 U.S.C. 12301(d) recall. At the

termination of the event, they revert back to Title 32 status automatically. Similar provisions exist for cyber and RPA per-

sonnel, who may conduct overseas operations from a CONUS location. ANG members ordered to active duty under 10

U.S.C. 12301(d) retain their ANG affiliation and continue to count against Reserve Component end strength.

**2. Voluntarily as Extended Active Duty (EAD)**. Officers and enlisted ANG members may also voluntarily apply for an

Extended Active Duty (EAD) tour under 10 U.S.C. 10211 and 10 U.S.C. 10305. Officers applying for EAD must meet the

criteria set out in AFI 36-2116, which requires, among other things, meeting PME and physical qualification standards,

five years of federal commissioned service and at least three years of Guard service immediately before selection. Enlisted

personnel are selected for a four-year EAD tour, which may be amended as necessary, under the application standards of

AFI 36-2002. They return to the ARC upon being released from the EAD. Officers applying for voluntary EAD must

meet the criteria of AFI 36-2008. Tour lengths vary.

If enlisted personnel commit misconduct that supports a ground for discharge from the Air National Guard under ANG

regulations while on EAD, the member can be discharged from the Air National Guard. Under this procedure, the active

duty component would release the member back to the state with documentation supporting the reasons for the early

release from the active duty or EAD tour. The state would then determine whether discharge from the ANG is appropri-

ate. Officers on EAD may be administratively discharged by the active duty component under AFI 36-3206. The active

component has disciplinary authority over these members.

Federal technicians who accept an active duty or EAD tour have the right upon release from an active duty or EAD tour

(subject to time and character of service limitations) to return to their federal technician job. If the early release from an active duty or EAD tour supports a ground for discharge from the Air National Guard, the federal technician must still

be re-employed although the technician employment will end when the administrative discharge action is completed

since membership in the National Guard is a condition of employment as a federal technician. Members on EAD count

against active duty Air Force end strength.

**3. Involuntarily by Presidential Reserve Call-up (10 U.S.C. 12304), Partial Mobilization (10 U.S.C. 12302), or**

**Full Mobilization (10 U.S.C. 12301(a)).** During call-ups and mobilization, the active duty Air Force has command and

disciplinary authority over ANG members. This is usually exercised through 201st Mission Support Commander at the

Air National Guard Readiness Center.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 11, Duty Status Matters**_

_**Section 11-2 Status of National Guard Members**_

_**Page 3**_

_Presidential Reserve Call-up_. 10 U.S.C. 12304 permits the President to authorize the involuntary activation of members of the Selected Reserve (including the ANG) and the Individual Ready Reserve (IRR) for a period not to exceed 270 days.

Under this authority, up to 200,000 members of the Selected Reserve and the IRR may serve on active duty at any one

time. The President may activate reservists under this provision of the law without approval from Congress; however, he

is required to notify Congress within 24 hours of such an action. This authority has been used to mobilize reservists dur-

ing the earlier part of the Persian Gulf War (1990-1991), during the intervention in Haiti (1994-1996), during the

Bosnian peacekeeping mission (1995-2004) and during the low intensity conflict with Iraq (1998-2003).

_Partial Mobilization_. In time of national emergency declared by the President, 10 U.S.C. 12302 permits the Service Secretaries to authorize the involuntary activation of members of the Ready Reserve under his jurisdiction for a period not to ex-

ceed 24 consecutive months. Up to 1 million members of the Ready Reserve may serve on active duty at any one time

under this provision of law. Although reservists may be mobilized under this provision of law without approval from Con-

gress, the Secretary of Defense is required to make annual reports to the House and Senate Armed Services Committees

on the policies and procedures used to implement this authority. This authority was used to mobilize reservists during

the latter part of the Persian Gulf War (1991) when the Presidential Reserve Call-up authority was no longer sufficient to

activate the number of reservists needed. President George W. Bush invoked this authority in the aftermath of the Sep-

tember 11, 2001, terrorist attacks. This authority has also been used to mobilize reservists for Operations Noble Eagle,

Enduring Freedom and Iraqi Freedom.

_Full Mobilization_. In time of war or national emergency declared by Congress, 10 U.S.C. 12301(a) permits the Service Secretaries to authorize involuntary activation of any member of the reserve components under his jurisdiction. There is no

limit on the number of reservists which may be ordered to active duty under this provision and reservists may be kept on

active duty for the duration of the war or emergency plus six months.

**4. Involuntarily by the President for members who are not assigned to or participating satisfactorily in, a unit of**

**the ready reserve and who have not fulfilled their statutory reserve obligation and have not served on active**

**duty for a total of 24 months. (10 U.S.C. 12303).** This rarely used provision allows for the enforcement of service

commitments. "Satisfactory participation" means attendance and satisfactory performance of assigned duties at the required 48 UTA and 15 days of annual training. A Guard member cannot be classified as an "unsatisfactory participant" for purpose of 10 U.S.C. 12303 and be called to active duty for failure to perform state duty, such as a failure to comply with

a state emergency recall. A member who is ordered to active duty involuntarily under 10 U.S.C 12303 may be required to

serve on active duty until the member's total (past and future) service on active duty equals 24 months. If the enlistment

or other period of military service would expire before service of the required period, it may be extended until service for the required period is completed. In determining the need to exercise this authority, the law requires that due consideration be given to the member's "family responsibilities," the length and nature of previous service, and if relevant, employment necessary to maintain the national health, safety or interest.

**INACTIVE DUTY TRAINING, FULL-TIME NATIONAL GUARD DUTY AND AGRS**

When the duty of members is under Title 32, the members generally have the same rights and benefits as members serv-

ing on active federal service under Title 10 for a like period of time, with the exception that Title 32 members are not covered by the Servicemember's Civil Relief Act and by certain VA benefits. It is this middle ground "status" that requires

special attention to ensure that National Guard members are aware of their rights, benefits and obligations. Members

generally perform their inactive duty training (UTA), annual training (AT), schools, split unit training assembly (SUTA),

rescheduled unit training assembly (RUTA), equivalent training (EQT), additional flying training period (AFTP), profi-

ciency training (PT), and training preparation and planning assembly (TPPA) under Title 32.

Many states' military laws and regulations have disciplinary sections that apply to National Guard personnel whether or

not they are performing duty at the time a violation of law occurs. For example, if a Guard member commits a civilian

offense at a time when not in a duty status, the commander should determine if that offense warrants taking military ac-

tion against the member. The rationale of these state laws and regulations is that simply by being a member of the

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 11, Duty Status Matters**_

_**Section 11-2 Status of National Guard Members**_

_**Page 4**_

National Guard in that state, the member is subject to that state's military laws at all times. You should check with your

staff judge advocate to see if your state's laws cover this situation.

AGR personnel are a special problem when called to state active duty. These individuals are on full-time status with a

specific charter to organize, administer, recruit, instruct or train National Guard members under Title 32. Using these

individuals to also perform state functions is severely limited and placing them on state active duty creates a number of

legal issues which should be resolved in advance of such an assignment. Since AGRs perform their duty under Title 32,

they are subject to state control. As a result, they are not subject to criminal prosecution under the UCMJ.

Technicians are generally treated like drill status ANG members for purposes of military discipline. The Supreme Court

of the United States held in Tennessee v. Dunlap that, since a technician must be a Guard member as a condition of the

technician employment, any valid action terminating the Guard member's/technician's military status will also result in

the loss of technician employment. For military disciplinary purposes, they are under state control and in a state status.

However, they may also receive workplace discipline through the federal civil service system. Your state HRO can assist

you with matters related to technician discipline.

**STATUS AND DISCIPLINE**

As noted above, commanders should also be alert to jurisdictional issues when National Guard members commit crimi-

nal offenses. If a National Guard member is serving under Title 32 and commits a criminal offense, in addition to the

member being subject to prosecution by civilian authorities, the commander may only punish the member under the

state military code. The UCMJ does not apply even if the offense took place on an active duty base. This is because it is

the _**status of the member, not the location of the offense**_ that determines whether the member may be punished under the state code or the UCMJ. If the member is detained by the active duty security forces, the commander should alert the active duty base commander and explain what action will taken against the member. Any charges under the UCMJ are inva-

lid. The commander may have limited options to punish the member if the offense is not a violation of state law or regu-

lation. But it is likely that the act for which the National Guard member was detained, if found by the member's com-

mander to have occurred, will support some kind of disciplinary or adverse administrative action against the member.

Many active duty commanders are not aware of the statutory status of members of the National Guard, and National

Guard commanders should establish operating protocols with the servicing active duty installation commanders to avoid

confusion if an incident.

Note that if a Guard member is on Title 10 status ( _i.e._ , mobilized, OCONUS training deployment, Basic Military Training, etc.) that member is subject to the UCMJ while in such status, AND, depending on your state military code, the

member may also be subject to punishment under that state military code for that same act. This is called concurrent ju-

risdiction. In most cases, this manifests when a member receives discipline in a Title 10 status that results in an adminis-

trative discharge when the member returns to state control.

While there is a temptation to attempt to court-martial members under the Uniform Code of Military Justice (UCMJ),

unless the member was serving under Title 10 at the time of the offense, the member may not be involuntarily called to

full-time duty in the active military service of the United States under Title 10 for a court-martial. While this may frus-

trate the commander in the exercise of discipline, it is consistent with the statutory charter of Title 32. As noted earlier, National Guard members generally serve under the authority of Title 32, not Title 10. As a result, they are generally subject to the jurisdiction of the state military code.

Air National Guard Commanders in a Title 32 status have neither command authority nor UCMJ authority over mem-

bers deployed in Title 10 status. Similarly, a deployed ANG commander can no longer command a home station unit. In

order to maintain ANG administrative control over ANG personnel, members deploying OCONUS are assigned to the

Air National Guard Readiness Center (ANGRC), which establishes detachments for deployments of more than ten per-

sonnel and longer than fifteen days. Detachment commanders are appointed under G-series orders and the chain of com-

mand runs through the ANGRC. Small deployments without officers will remain assigned directly to the ANGRC.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 11, Duty Status Matters**_

_**Section 11-2 Status of National Guard Members**_

_**Page 5**_

Operational control over the deployed members remains with the theater commander consistent with the tasking order.

However, the ANG, through the ANGRC, will maintain control over such things as military justice, LOD determinations,

emergency medical care, and foreign jurisdiction.

Where a Guard member on Title 32 status commits an act on exclusive federal land for which there is no prescribed viola-

tion of law and punishment under the state's military justice law or regulation (for example, shoplifting in the BX), the

installation commander has the authority to refer the matter to federal civilian criminal court for prosecution of the mem-

ber under federal civilian criminal law. Before an installation commander refers such a matter to federal civilian authori-

ties for criminal prosecution, the staff judge advocate should be consulted.

**STATUS AND BENEFITS**

While on active duty under Title 10, Air National Guard members are generally entitled to military pay and benefits simi-

lar to those enjoyed by members of the regular Air Force. Title 10 status also invokes the protections afforded by the Serv-

icemember's Civil Relief Act. While in state status, only certain provisions of federal law apply. Some states have similar

laws, but these vary substantially from state to state.

_**KWIK NOTE: It is imperative that all unit personnel understand the distinctions in status and the effects of those distinc-**_

_**tions. This topic should be briefed to all personnel annually, and may be supplemented with applicable state law.**_

**RELATED TOPICS:**

**SECTION**

Absent Military Members

1-2

Active State Duty – Air National Guard Members

11-3

Administrative Discharge Of Enlisted Personnel

24-3

Administrative Discharge Of Officers

24-4

AGR Program

11-4

Aid to Civilian Authorities

6-2

Arrest by Civilian Authorities

8-6

Civilian Employment and Guard Membership

23-8

Counter-Drug Support Program

6-5

Courts-Martial

8-15

Disability of National Guard Members

4-4

Driving While Intoxicated and Other Offenses Involving Intoxication

8-17

Enforceability of Orders by Air Force Officers to ANG Personnel Not in Federal Service

11-5

Enlistment and Re-Enlistment

1-13

Federal Magistrate Judges

8-3

Feres Doctrine

18-3

Freedom of Expression – Restrictions on Military Members

14-13

Indemnification Agreements

14-3

Jurisdiction

2-5

Lawsuits against National Guard Personnel

18-6

Line of Duty Determinations

1-19

Medical and Dental Care to Persons Authorized

19-10

Military Justice Jurisdiction – ANG Members in Title 10 Status

8-2

Mobilization of the Air National Guard (Federal and States)

20-2

Nonjudicial Punishment

24-11

OPCON and ADCON for Deploying ANG Forces

15-15

Orders- Problem Areas

1-25 

## Part-time Service

1-27

Political Activities

7-12

_**Air National Guard Commander's Legal Deskbook**_

405

_**Chapter 11, Duty Status Matters**_

_**Section 11-3 State Active Duty**_

_**Page 1**_

**State Active Duty**

**Updated by Colonel Marshall Wilde, December 2014**

**AUTHORITY:** United States Code, Title 32; ANGI 36-2001, _Management of Training and Operational Support within the Air_ _National Guard_ (19 Oct 09); ANGI 36-101, _The Active Guard/Reserve (AGR) Program_ (3 Jun 10); applicable state law. 

## INTRODUCTION

Units of the Air National Guard have a dual mission. The first is a federal or state mission to provide units organized,

equipped, and trained to function efficiently in the protection of life and property and the preservation of peace, order

and public safety under competent orders of federal or state authorities. The second is a federal mission to develop, main-

tain, and provide the Air Force with operationally ready units to augment the active Air Force upon mobilization, and

support of DoD peacetime operations. Members of the Air National Guard are part of the state militia. While the unit is

organized, armed, and equipped wholly or partly at federal expense and is federally recognized, it remains a state organi-

zation under the command and control of state authorities, except when federalized. When in state status, members may

be called to state active duty by order of their governor, or otherwise as permitted by state law. The missions, pay, and

benefits of members may differ significantly from those on federal active duty.

**EFFECTS OF STATE ACTIVE DUTY**

**Financial and Liability Matters**. When called to state active duty, the state government provides for the financial support of the National Guard. As most states are required to produce balanced budgets and call out the Guard in unantici-

pated emergencies, this can create financial problems both for state budgets and for members. Pay scales may not reflect

those for federal call ups, and members will not generally receive retirement credit from the federal government. Limita-

tions of state law may apply to working conditions, wages, and hours.

If the anticipated activity is purely a state function, liability for injury to members is strictly a matter of state law, and there is no protection under the Federal Tort Claims Act. In addition, the state is probably responsible for loss or damage

to equipment and may have an obligation to reimburse the federal government for these losses. Claims and worker's

compensation should be addressed early in the planning process.

There are provisions for the reimbursement of states for their expenses in federally declared disasters, and for reimburse-

ment of expenses by other state Guards for their service in a receiving state under Emergency Management Assistance

Compacts (EMAC). As such, it is very important at the beginning of a contingency to track days and dollars. Duty per-

formed or expenses incurred without proper accounting may go unreimbursed.

**Command and Missions**. In state active duty situations, state law or command may set up a different chain of command

to reflect the realities of the missions. For instance, a state may send a 125 person firefighting contingent under the com-

mand of an activated commander, reassigning members from other commands for the purpose of the mission. Similarly,

the missions may differ significantly from those the Guard trains for with federal funds. The necessities of these missions

may require a different task-organization and command relationships.

**AGRs**. Ordering Active Guard Reserve (AGR) personnel to state active duty has many problems. These individuals are

on full-time status with a specific charter to organize, administer, recruit, instruct or train National Guard members. As

such, their use in a state emergency may be time or mission limited. You should consult your staff judge advocate regard-

ing the status of this proposed legislation and any proposed use of AGR personnel for state missions.

**CONCLUSION**

Before a unit is called to full-time state active duty status, the commander should review the available options with the

_**Air National Guard Commander's Legal Deskbook**_

406

_**Chapter 11, Duty Status Matters**_

_**Section 11-3 State Active Duty**_

_**Page 2**_

staff judge advocate and establish protocols to resolve the anticipated use of National Guard resources to avoid delays

and minimize problems in the event the governor orders a unit to state active duty. The federal funds generally used un-

der Title 32 to provide a force fit to activate and perform federal missions may not be available for a purely state mission.

This requires commanders to plan for financial support and to appreciate how their particular state's laws may impact

command structures, pay, and benefits.

_**KWIK-NOTE: State active duty is the state equivalent of ANG members being mobilized under Title 10 to federal active**_

_**duty, but with very different impacts and funding concerns.**_

**RELATED TOPICS:**

**SECTION**

AGR Program

11-4

Federal Government Property Furnished to the ANG

25-10

Status of National Guard Members

11-2

_**Air National Guard Commander's Legal Deskbook**_

407

_**Chapter 11, Duty Status Matters**_

_**Section 11-4 AGR Program**_

_**Page 1**_

**AGR Program**

**Updated by Colonel Marshall Wilde, December 2014**

**AUTHORITY:** ANGI 36-101, _The Active Guard/Reserve (AGR) Program_ (3 Jun 10); 10 U.S.C. 101(d), 12602(b) (2); 32

U.S.C. 101(19), 502(f); 38 U.S.C. 4312; applicable state law and regulations.

**STATUTORY BASIS**

The Active Guard and Reserve Program was established in the early 1980s with participants then ordered to active duty

under Title 10, U.S. Code. In 1984 Congress redefined AGR status as "Full-time National Guard duty" (FTNGD) in the definitions sections of both Title 10 and Title 32, which read:

"Full-time National Guard duty" means training or other duty, other than inactive duty, performed by

a member of the Army National Guard of the United States or the Air National Guard of the United

States in the member's status as a member of the National Guard of a State or territory, the Commonwealth

of Puerto Rico, or the District of Columbia under section 316, 502, 503, 504, or 505 of title 32 for which

the member is entitled to pay from the United States or for which a member has waived pay from the

United States."

Orders to duty are now pursuant to 32 U.S.C. 502 (f), which is a general authority for training or other duty in a Title 32

status. The above legislation clearly established that AGRs are under the command and control of the respective gover-

nor rather than under that of the Army or the Air Force directly. Pay, allowances, benefits and privileges are essentially

identical to those of the active component forces except for some Department of Veterans Affairs (DVA) benefits. This

status currently excludes such DVA entitlements as a G.I. Bill mortgage, active component educational benefits, National

Cemetery burial, or post-AGR medical care that is not directly related to an in the line-of-duty incident. However, AGR

benefits and privileges include legal assistance from active duty legal offices of any component and military medical treat-

ment at all times.

**RE-EMPLOYMENT RIGHTS**

Additionally, the post-tour civilian re-employment rights of AGRs are those defined in 38 U.S.C. 4312. The U.S. Con-

gress in 1994 undertook to rewrite the Veterans' Re-employment Rights Act, now referred to as the Uniformed Services

Employment and Reemployment Rights Act (USERRA) (38 U.S.C. 4301 et seq.). The statute now provides explicit limi-

tations and notice requirements, including, in the case of a person whose period in the services was for more than 180

days, the submission of an application for re-employment no later than 90 days after the completion of that period of

service (38 U.S.C. 4312).

**MILITARY JUSTICE JURISDICTION**

AGRs are under the jurisdiction of their state Code of Military Justice while in their usual Title 32 duty status. These

codes vary from state to state. As with any other members of the ANG, that jurisdiction can change to the Uniform Code

of Military Justice by changing to Title 10 status for either OCONUS duty, initial training, or active federal service.

**STATUS AND BENEFITS**

Since AGRs are not deemed on active duty, like a member of the regular Air Force, the federal Serviceman's Civil Relief

Act does not apply to them while in Title 32 status. AGR members are in a duty status at all times unless on leave, simi-

lar to active duty members of the Air Force. All AGRs must have performance evaluations. Both DoD Standards of Con-

duct (DoDD 5500.7) and prohibitions against certain political activities (AFI 51-902) apply to AGRs.

_**Air National Guard Commander's Legal Deskbook**_

408

_**Chapter 11, Duty Status Matters**_

_**Section 11-4 AGR Program**_

_**Page 2**_

AGR members may achieve an active duty retirement by the completion of 20 years of creditable active service. Any ac-

tive duty or active duty for training may be combined with AGR service in the computation of time toward an active duty

retirement. Inactive duty points may not count toward qualifying years of service. Alternatively, if the AGR does not qual-

ify for a 20 year active duty retirement, each day of AGR service counts as one active duty point toward a reserve compo-

nent retirement at 60 years of age.

**TERMINATION**

Termination of AGRs can occur with very little process. The grounds and procedures for involuntary termination for

cause from AGR status are prescribed in ANGI 36-101, paragraph 8.5. The termination process commences by a letter of

notification, followed by a 7-day period to respond in writing. The state adjutant general may appoint an investigating

officer to investigate and recommend appropriate action. The state adjutant general is the separation authority.

If the AGR's tour is curtailed, it results in the member being converted to "drill" or traditional Guard status. However, if the member does not have potential for future service, the commander should consider the member for discharge. Discharge from the National Guard and/or as a Reserve of the Air Force may thereafter be as prescribed in AFI 36-3209. If

an AGR member commits an act which leads to administrative discharge processing, it may, in some cases, be appropri-

ate to accept the member's voluntary resignation from the AGR program, and continue with the action to discharge the

member from the Guard. Separation pay is payable to AGRs who are involuntarily released before the scheduled tour if

they meet eligibility requirements outlined in the DoD Financial Management Regulation ( _see also_ AFI 36-3207, _Separating Commissioned Officers_ (9 Jul 04)).

_**KWIK-NOTE: While AGRs have nearly the same pay allowances, benefits and privileges of active duty personnel, they are in**_

_**state status (Title 32), and thus do not accrue all the same benefits as active duty airmen.**_

**RELATED TOPICS:**

**SECTION**

Active State Duty

11-3

Administrative Discharge Of Enlisted Personnel

24-3

Administrative Discharge Of Officers

24-4

Arrest By Civilian Authorities

8-6

Civilian Employment and Guard Membership

23-8

Medical and Dental Care to Persons Authorized

19-10

Off-Duty Employment

7-9

Standards of Conduct

7-13

Status of National Guard Members

11-2

Veterans Benefits

4-8

_**Air National Guard Commander's Legal Deskbook**_

409

_**Chapter 11, Duty Status Matters**_

_**Section 11-5 Enforceability of Orders by Air Force Officers to ANG Personnel Not In Federal Service**_

_**Page 1**_

**Enforceability of Orders by Air Force Officers to ANG Personnel**

**Not in Federal Service**

**Updated by Colonel Marshall Wilde, December 2014**

**AUTHORITY:** 32 U.S.C. 325; AFI 51-604, _Appointment to and Assumption of Command_ (4 Apr 06); OpJAGAF 1983/99, _Enforceability of Orders by AF Officers to ANG Personnel Not in Federal Service_ (12 Dec 83); OpJAGAF 1997/139, _Command of Guard_ _and Active Duty Units_ (11 Dec 97); OpJAGAF 1999/61, _Command of Guard and Active Duty Units_ (18 Aug 99).

**STATUS OF ANG MEMBER**

The question sometimes arises whether an active duty Air Force officer may give an enforceable order to a member of the

Air National Guard. The answer depends in large part on the status of the Air National Guard member. Coordination be-

tween Title 10 and Title 32 commanders has become critical in an era when active Air Force and traditional ANG mem-

bers may work side by side on the same mission on a daily basis.

National Guard personnel may perform duty in three basic statuses:

1. State active duty - Ordered by the governor under the authority of state law and paid for by the state. This form of

duty is used primarily for state emergencies.

2. Federally-funded state training duty - Ordered by the governor under the authority of federal law (Title 32, United

States Code) and paid for with federal funds. This is the form of duty used for weekend drills, annual training, and most

schools and assignments within the United States. Most National Guard duty falls into this category.

3. Federal duty - Ordered by the President or the Secretary of the Air Force under the authority of federal law (Title 10,

United States Code) and paid for with federal funds. This form of duty is used for basic military training, overseas train-

ing missions, as well as when the Guard is called or ordered to active duty (mobilized) by the U.S. Government.

**ACTIVE STATE DUTY AND TITLE 10 DUTY**

The situation is relatively clear with regard to state active duty and federal duty. The orders of an active duty officer

would not be enforceable against an ANG member. On the other hand, it is clear that the orders of an Air Force officer

are enforceable against a member of the National Guard performing federal (Title 10) duty when the member is subject

to the federal Uniform Code of Military Justice (UCMJ). An ANG officer may not command regular active duty Air Force

organizations, except on extended active duty (EAD) orders or as discussed below under dual-hatting of commanders.

**TITLE 32 DUTY**

Title 32 duty is federally-funded state training duty. The federal government provides money to the states so that they

may maintain a force ready to perform federal missions when activated. In general, the orders of active duty officers to

ANG members in this status are not enforceable by court-martial because ANG members are not subject to the UCMJ.

In practice, the commander of the ANG forces in state status and the Title 10 DETCO should have a cooperative arrange-

ment that permits their staff to work effectively to accomplish the assigned missions.

**ALTERNATIVE ACTIONS OF AIR FORCE OFFICERS**

Cooperation between ANG and active duty AF commanders is essential for mission accomplishment. Even though the

orders of active Air Force officers to ANG members who are not in federal service are not enforceable by court-martial

under the UCMJ, the member may still be subject to administrative action.

_**Air National Guard Commander's Legal Deskbook**_

410

_**Chapter 11, Duty Status Matters**_

_**Section 11-5 Enforceability of Orders by Air Force Officers to ANG Personnel Not In Federal Service**_

_**Page 2**_

1. If the ANG member is in training on an active duty installation (attending a school, for example), the member can be

released from the training and sent home by the Air Force.

2. An Air Force installation commander can bar the ANG member from the installation. In an extreme case, if the ANG

member trains at the base, the individual may ultimately have to be discharged from the ANG for non-performance of

duties.

3. The active Air Force authorities may call the member's ANG unit commander who may issue the same order, which

could then be enforced under the state Code of Military Justice.

4. The underlying conduct (for example, disobedience of a federal officer or refusal to get a haircut) may be a violation of state law or regulations, and the member may be subject to disciplinary action under the state Code of Military Justice.

**POLICY**

ANG policy requires maximum cooperation with active Air Force authorities. When an ANG commander learns that a

member of the command has run afoul of Air Force authority, the ANG commander should take prompt positive action

to resolve the situation.

**EXCEPTION: DUAL STATUS COMMANDERS**

32 U.S.C. 325 was amended in 2004 to allow for dual status commanders. The statute allows a National Guard com-

mander to retain his state commission after ordered to active duty under Title 10. Command authority is thereafter exer-

cised in a mutually exclusive manner – the commander only wears one hat at a time. The statute requires both Presiden-

tial authorization and the governor's consent of the dual status for the commander. The benefit of this construct is it al-

lows a Guard commander familiar with both state and local area of operations to serve in both a state and federal status

to provide unity of command for federal and state chains of command. This construct has been used for limited duration

domestic operations such as the G8 Summit and the Democratic and Republican National Committee Meetings.

**CONCLUSION**

The authority of active duty officers over ANG members involves complex questions of status and command. Questions

in this area should always be referred to your staff judge advocate.

_**KWIK-NOTE: Air Force officers may not directly enforce their orders on ANG personnel in Title 32 status.**_

**RELATED TOPICS:**

**SECTION**

AGR Program

11-4

Barment

3-11

Installations Jointly or Solely Occupied By the ANG

25-12

Jurisdiction

2-5

Military Justice Jurisdiction - ANG Members in Title 10 Status

17-12

Mobilization of the Air National Guard (Federal and State)

20-2

State Active Duty

11-3

_**Air National Guard Commander's Legal Deskbook**_

411

_**Chapter 11, Duty Status Matters**_

_**Section 11-6 Relationship with Other Military Components**_

_**Page 1**_

**Relationship with Other Military Components**

**Updated by Colonel Marshall Wilde, December 2014**

**AUTHORITY:** Applicable state laws and regulations; applicable Status of Forces Agreements (SOFAs); applicable

local agreements. 

## INTRODUCTION

Guard members frequently find themselves working alongside other military components. These can include the Army

Guard, various Reserve units, active duty forces or forces of foreign countries. Our installations are frequently co-located with other military components. School attendees, AGR members and remote detachments often come in contact with

the active duty establishment. Deployment can place Guard members almost anywhere and with any type of forces.

**COMMUNICATE WITH HOST BASE**

The key for commanders in facing these varied situations is communication. In the early stages of planning a deployment

in the United States or overseas, advance coordination with the host unit commander is essential. One of the most fre-

quently encountered issues will be what happens when one of the deploying Guard members runs afoul of the law, either

on or off-base. The host commander may not have disciplinary authority over the member, but the commander has a

strong interest in addressing the conduct. To avoid misunderstandings, the host commander and commander responsible

for discipline should have frequent communication and a common understanding of disciplinary processes. This under-

standing can be reflected in an exchange of letters between commanders, or a memorandum of understanding (MOU),

but should be in writing for later reference. At a minimum, it should be addressed in the OPLAN, and a copy of that

document provided to the active component commander.

If the deployment is overseas, the member will be on Title 10 orders and there will be UCMJ jurisdiction. However, un-

der a state's Code of Military Justice, the state may also have jurisdiction. The ANG should never attempt to obtain juris-

diction with the intent of preventing a member from receiving discipline. In cases where the interests of a host or foreign

nation are involved, the appropriate SOFA should be consulted in these situations and every effort made to ensure con-

tinuous communication regarding the status of the issue between the interested parties.

Other issues that may arise when dealing with other components involve processing of line of duty (LOD) determina-

tions and imposition of administrative quality force management actions. AFI 36-2910 should be consulted for LOD mat-

ters. Active duty commanders may not think of starting an LOD essential for an ARC member temporarily assigned to

them, unaware of the necessity to ensure the preservation of the member's benefits. In quality force management ac-

tions, it is important to remember that a member of the ANG on active duty, who has not been accessed into the end

strength of the active Air Force, remains subject to ANG regulations for purposes of discharge from Reserve of the Air

Force status. Typical situations are basic military training and statutory tours where the member remains affiliated with

the ANG ( _i.e._ , is counted against ANG end strength). The active Air Force may release such a member from active duty and return the member to the jurisdiction of the state, which may then initiate appropriate action to discharge the member under ANG regulations.

In the situation of units of different military components being co-located, or in close proximity to each other where the

members of each unit frequent each installation, commanders of the co-located or proximate units should negotiate and

sign a memorandum of understanding (MOU) regarding disciplinary authority over their members. This MOU should

deal with all issues the respective commanders deem appropriate, including handling disciplinary problems occurring on

one unit's (part of the) base by the other unit's members. Again, the key is the opening and maintaining of active com-

munications between the unit commanders. Judge advocates of both units should be consulted and be part of the MOU

discussions.

_**Air National Guard Commander's Legal Deskbook**_

412

_**Chapter 11, Duty Status Matters**_

_**Section 11-6 Relationship with Other Military Components**_

_**Page 2**_

**FOLLOW-THROUGH ON DISCIPLINE**

There is no surer way of ruining the relationship between units or countries than by failing to hold members accountable

for misconduct committed against the member of another unit or a citizen of another country. Disciplinary cultures vary

widely around the world. The opinion of the victim of a crime regarding its severity is always an appropriate considera-

tion in deciding on an appropriate punishment, and should always be solicited. When the commander imposes disci-

pline, it is appropriate to let the interested parties know, at a minimum, that discipline has occurred, and, when permissi-

ble, what that discipline was. When possible, restitution should be paid, and paid quickly. Be sensitive to these interests, and you will better ensure smooth, ongoing relationships with other military components in subsequent activities involving your unit members.

_**KWIK-NOTE: Letters, MOUs and other protocols should be exchanged between commanders when ANG units are co-located**_

_**on an installation with or near another military component.**_

**RELATED TOPICS:**

**SECTION**

Arrests Authorized By the ANG

8-7

Enforceability of Orders by Air Force Officers to ANG Personnel Not In Federal Service

11-5

Installations Jointly or Solely Occupied By the ANG

25-12

Jurisdiction

2-5

Leases and Armory Use Agreements

3-12

Memoranda of Understanding (MOUs)

6-6

Motor Vehicle Rules - Military Bases

21-6

Quality Force Management Actions

24-12

Status of National Guard Members

11-7

Suspension of Base Driving Privileges

21-7

TDY And Travel

27-9

Training Outside the United States

26-3

Visits to Other Bases

27-13

_**Air National Guard Commander's Legal Deskbook**_

413

**Chapter 12, Environmental Matters**

**Table of Contents**

**Section**

12 - 1 Table of Contents

12 - 2 Criminal Liability of Commanders for Environmental Violations

12 - 3 Environmental Duties at Base Level

12 - 4 Hazardous Waste Disposal

12 - 5 Preservation of Historic Properties

12 - 6 Environmental Impact Analysis Process

12 - 7 Air Emissions

12 - 8 Hazardous Substance Spill Contingency Programs and Emergency Release Reporting

12 - 9 Handling Inspections and Responding to Notices of Violations (NOVs)

12 - 10 Recycling and Waste Diversion Program

12 - 11 What Questions Should I Ask My Installation Staff?

_**Air National Guard Commander's Legal Deskbook**_

414

_**Chapter 12, Environmental Matters**_

_**Section 12-2 Environmental Law - Criminal Liability of Commanders**_

_**Page 1**_

**Environmental Law - Criminal Liability of Commanders for**

**Environmental Violations**

**Updated by Brigadier General Robert B. Burns (Ret), June 2014**

**AUTHORITY** : _U.S. v. Dee_ ("Aberdeen") 912 F.2d 741 (4th Cir. 1990); (NGB/DE-2 All States Letter, Log Number I89-0369, dated 22 Sep 1989, as guidance); applicable state law; AF Commander's Guide To Environmental Quality.

**RESPONSIBILITIES AND PENALTIES**

The installation commander is responsible for compliance with environmental laws that impact his or her particular facil-

ity. The installation commander and subordinate commanders have a personal stake in ensuring compliance with environ-

mental laws and regulations within their commands. Violations of environmental laws are increasingly being enforced

through criminal sanctions. The federal government and individual state governments can enforce many environmental

laws by bringing criminal charges against individual offenders, including ANG commanders. Commanders must there-

fore consider environmental compliance an integral aspect of mission accomplishment.

In a leading case, known as "Aberdeen," three senior civilian Army employees were convicted of violating hazardous

waste disposal and pollution discharge laws at the Aberdeen Proving Grounds. They lost their jobs and each paid well

over a hundred thousand dollars in defense attorney fees. None of the defendants were accused of actually dumping

chemicals. Rather, the violations occurred in departments over which they exercised control.

It is no longer safe to say, "I wasn't aware of the problem." Most federal and state jurisdictions have adopted the "respon-

sible corporate office" basis of criminal liability. Under this legal doctrine, if a commander should reasonably have known

that an environmental violation was occurring within his or her command, the commander may be criminally liable, even

if he or she had no actual knowledge of the violation. Thus, NEGLIGENT INATTENTION to environmental problems

may subject a commander to personal criminal liability. It is particularly important to correct any environmental non-

compliance noted in environmental audits, such as the Environmental Compliance Assessment and Management Pro-

gram (ECAMP).

Commanders can reduce their personal exposure for environmental violations through active support of base environ-

mental activities, particularly the Base Environmental Protection Committee and the self-inspections that occur during

ECAMP actions. Reporting up the chain of command is absolutely critical. Lack of resources or authority is not, by itself,

a defense. A commander must effectively communicate an actual or potential violation of environmental laws to his or

her superiors, make effective efforts to secure additional funding or, in some cases, shut down the operation or activity

that is violating federal criminal laws or endangering human health. Failure to take these steps leaves a commander vul-

nerable to criminal and civil sanctions. Criminal violations of environmental laws are also chargeable under the UCMJ

(for those in Title 10 status), and may delay promotion and reassignment actions during the several years it takes to liti-

gate an environmental case.

_**KWIK-NOTE: Train yourself to always consider the impact of the decisions you make on the environment.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Environmental Law – Environmental Duties at Base Level

12-3

Environmental Law – Hazardous Waste Disposal

12-4

Environmental Law – Recycling Program

12-10

Personal Liability of Federal and State Officials

18-9

Utilities

25-21

Whistleblower Protection Act

5-9

_**Air National Guard Commander's Legal Deskbook**_

415

_**Chapter 12, Environmental Matters**_

_**Section 12-3 Environmental Law - Environmental Duties at Base Level**_

_**Page 1**_

**Environmental Duties at Base Level**

**Updated by Brigadier General Robert B. Burns (Ret), June 2014**

**AUTHORITY** : AFI 23-502, _Recoverable And Unusable Liquid Petroleum Products_ (6 Apr 94); AFI 32-4002, _Hazardous Material_ _Emergency Planning And Response Program_ (1 Dec 97); AFI 32-7001, Environmental Budgeting (9 May 94); AFI 32-7002, _Environmental Information Management System_ (31 May 94); AFI 32-7005, _Environmental Protection Committees_ (25 Feb 94); AFI 32-7006, _Environmental Program In Foreign Countries_ (29 Apr 94); AFI 32-7020, _Environmental Restoration Program_ (7 Feb 01); AFI 32-7040, _Air Quality Compliance_ (9 May 94); AFI 32-7041, _Water Quality Compliance_ (13 May 94); AFI 32-7042, _Solid_ _and Hazardous Waste Compliance_ (12 May 94); AFPAM 32-7043, _Hazardous Waste Management Guide_ (1 Nov 95); AFI 32-7044, _Storage Tank Compliance_ (25 Apr 94); AFI 32-7045 _Environmental Compliance Assessment and Management Program_ (1 Jul 98); AFI 32-7047, _Compliance Tracking and Reporting_ (31 Mar 94); AFI 32-7060, _Interagency and Intergovernmental Coordination_ _for Environmental Planning_ (25 Mar 94); 32-7061, _The Environmental Impact Analysis Process_ (24 Jan 95) as promulgated at 32

CFR Part 989; AFI 32-7062, _Air Force Comprehensive Planning_ (1 Oct 97); 32-7063 _Air Installation Compatible Use Zone Program_ (1 Oct 98); AFI 32-7064, _Integrated Natural Resources Management_ (1 Aug 97); AFI 32-7065, _Cultural Resources Management_ (13 Jun 94); AFI 32-7066, _Environmental Baseline Surveys In Real Estate Transactions_ (25 Apr 94); AFI 32-7080, _Pollution_ _Prevention Program_ (12 May 94); AFI 48-119, _Medical Service Environmental Quality Programs_ (25 Jul 94); AFPD 32-70, _Environmental Quality_ (20 Jul 94); DODI 4000.19, _Interservice and Intragovernment Support_ (9 Aug 95); DODD 4001.1 _Installation_ _Management_ (4 Sep 86); Executive Orders 12088, 12856, 12873, 12146; various federal environmental statutes; TJAG Policy Letter 22, _Contact with Pollution Control Authorities_ (1995 Revision); applicable state law and regulations; AF Commander's Guide To Environmental Quality; OpJAGAF 1980/63, _Aircraft Wreckages Are Eligible For Listing in National Register_ _of Historic Places_ (2 Jul 80); TJAG Policy Number 20, _Environmental Litigation_ (4 Feb 98); AFLSA/JACE Policy Letter, _Coordination of Settlement and Notices of Violations_ (12 May 97); SAF/MIQ Policy Letter, _Payment of Fines and Penalties Under the Clean_ _Air Act_ (20 Sep 96); US Environmental Protection Agency Memorandum On Implementation of EPA's Penalty/

Compliance Order Against Federal Agencies Under the Clean Air Act; The Yellow Book: EPA Guide To Environmental

Enforcement and Compliance At Federal Facilities (issued by EPA Office of Enforcement and Compliance, Federal Facili-

ties Enforcement Office (February, 1999)); AFI 32-4002/ANG Sup 1, _Hazardous Material Emergency Planning and Response_

_Compliance_ (17 Mar 97), AFI 32-7045/ANG Sup 1, _Environmental Compliance Assessment and Management Program_. 

## INTRODUCTION

Environmental law issues are among the most important issues facing today's Air National Guard commanders. Every

Air National Guard installation impacts the environment in numerous ways. As a result, environmental laws and regula-

tions daily impact Air National Guard activities.

**COMMANDER'S DUTIES**

The installation commander is responsible to plan, initiate and carry out actions in a manner to avoid adverse effects on

the quality of human health and the environment. The commander has the ultimate responsibility, for purposes of crimi-

nal and civil violations, for the actions or inactions of every other participant in the base's environmental program.

**BASE ENVIRONMENTAL COORDINATOR**

Installation commanders may appoint a Base Environmental Coordinator (BEC) who is responsible for the day-to-day

operation of the base environmental compliance program, and who should have all the cited authorities above plus all

applicable state and local statutes, regulations, rules and ordinances. Compliance with the federal statutes and regula-

tions is not enough; state and local authorities generally must also be complied with. HQ ANG Personnel has provided

authorizations and funding for this position. Any officer who can qualify under the Office of Personnel Management civil-

ian series 819 (environmental engineer) or 1301 (physical scientist) is eligible. It is strongly recommended each installa-

tion commander appoint the BEC to provide expertise in the high risk, very complex and highly politically charged envi-

ronmental management area.

_**Air National Guard Commander's Legal Deskbook**_

416

_**Chapter 12, Environmental Matters**_

_**Section 12-3 Environmental Law - Environmental Duties at Base Level**_

_**Page 2**_

**ENVIRONMENTAL PROTECTION COMMITTEE**

The installation Environmental Protection Committee (EPC), established pursuant to AFI 32-7005, is the local body re-

sponsible for reviewing all environmental activities conducted at the installation. The installation commander may chair

the Committee, or may designate a representative at all ANG installations with more than one unit. The Air Commander

chairs the EPC at single unit installations. To conduct an effective base-wide environmental program, the EPC should

have major staff representation with decision-making authority from the following offices: Civil Engineering, Comptrol-

ler, Personnel, Legal, Logistics, Public Affairs, Safety, Air Surgeon, and Plans and Operations. While the regulations leave the frequency of EPC meetings to the call of the chairperson, most installations find it necessary to have EPC meetings at

least on a quarterly basis. Minutes must be taken.

**GENERATING ACTIVITY**

The installation:

1. Must ensure all wastes are properly labeled, characterized, segregated, weighed, stored, packaged and transferred.

2. Will maintain initial accumulation points in accordance with the base hazardous waste management plan.

3. Must notify the environmental management office/function of any changes in hazardous waste activities.

4. Must complete all required disposal documents.

5. Must maintain a hazardous waste file in accordance with AFI 32-7043.

6. Must consult with environmental manager, bioenvironmental engineering, and HAZMAT planning team before any

hazardous waste activity is planned or modified.

**SJA's DUTIES**

The unit staff judge advocate (SJA) must review installation plans and programs for compliance with all applicable laws,

regulations and standards, and provide the EPC legal guidance. This is a high priority inspection item for the legal office.

**BASE CIVIL ENGINEER'S DUTIES**

The Base Civil Engineer (BCE) must serve as the OPR for all actions related to environmental permits, including collec-

tion of monitoring data, and the implementation of corrective action for violations of environmental permits.

**BASE TRANSPORTATION OFFICER'S DUTIES**

Advises on proper transportation and shipping requirements for hazardous waste and substances. Works with munitions

personnel to ensure compliance with hazardous material transportation laws and regulations. If required by state regula-

tions, provides transportation vehicles and drivers that possess current commercial drivers license required for transpor-

tation of hazardous substances.

**BASE SUPPLY**

Establishes a single point of contact for processing and controlling hazardous substance and waste supply actions or

transactions. Processes paperwork and maintains computer records for hazardous waste disposal actions. Note that base

supply does not accept physical control of hazardous waste. The generating units have physical control responsibilities.

**CONTRACTING OFFICE**

The Federal Acquisitions Regulations have NUMEROUS restrictions and provisions relating to hazardous substances.

Ensure your contracting officer(s) knows the FAR and DFAR provisions as well as any state acquisition rule limitations

_**Air National Guard Commander's Legal Deskbook**_

417

_**Chapter 12, Environmental Matters**_

_**Section 12-3 Environmental Law – Environmental Duties at Base Level**_

_**Page 3**_

that apply. The SJA should also contact DRMO to ensure that surplus sales do not involve possible hazardous substances

or material. A "hot item" is Radium 226, the luminance paint found inside gauges and instruments.

**HAZMAT PLANNING AND RESPONSE TEAMS**

Must ensure adequate preparation and resources are available for responding to hazardous waste releases. _See_ AFPAM

32-4013 for more information.

**CLINIC COMMANDER'S DUTIES**

The medical commander is responsible for the installation's environmental monitoring program.

**ACCOUNTING AND FINANCE OFFICER**

The Accounting and Finance office must ensure environmental management funds are properly used and documented.

**MULTI-DISCIPLINARY APPROACH**

The base-level environmental program is complex, and requires active participation by a number of staff agencies. It is an

area where delayed action may cost many dollars and seriously hamper a base's ability to perform its mission. Impact on

mission effectiveness can be minimized if the environmental problem is quickly identified and referred to those individu-

als with the appropriate expertise and responsibility.

**PENALTIES FOR VIOLATIONS**

Congress has waived federal sovereign immunity in varying degrees in many of the federal environmental statutes. When

that is the case, the military - Active Duty, Reserves and ANG - are not immune from penalties for violations of environ-

mental law. Federal, state and local environmental agencies have the power, and with ever-increasing frequency are exer-

cising it, to prosecute and fine (under some environmental statutes) not only civilian businesses and individuals, but also

other federal, state and local agencies of the same government for environmental law violations. State and local depart-

ments can seek criminal charges against base commanders.

**KEEP CURRENT**

Support and encourage all your staff officers with responsibilities for environmental law compliance - especially the BCE

and JA - to attend available environmental law conferences and seminars. Laws and regulations in this area are always

changing and developing. Key personnel must keep current to ensure continued compliance and your PROTECTION.

_**KWIK-NOTE: Know the key players in the environmental management team, ensure they are trained and environmental**_

_**audits are accomplished.**_

**RELATED TOPICS:**

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**SECTION**

Air Emissions

12-7

Criminal Liability of Commanders for Environmental Violations

12-2

Environmental Impact Analysis Process

12-6

Hazardous Waste Disposal

12-4

Preservation of Historic Properties

12-5

Occupational Health and Safety

12-9

Personal Liability of Federal and State Officials

18-9

_**Air National Guard Commander's Legal Deskbook**_

418

_**Chapter 12, Environmental Matters**_

_**Section 12-4 Hazardous Waste Disposal**_

_**Page 1**_

**Hazardous Waste Disposal**

**Updated by Brigadier General Robert B. Burns (Ret), June 2014**

**AUTHORITY** : AFI 32-7042, _Solid and Hazardous Waste Compliance_ (12 May 94); AFPAM 32-7043, _Hazardous Waste Management Guide_ (1 Nov 95); AFI 32-4002/ANG Sup 1, _Hazardous Material Emergency Planning and Response Compliance_ (17 Mar 97); 42 U.S.C. 6901 et seq; TJAG Policy Letter 22, _Contact with Pollution Control Authorities_ (1995 Revision); applicable state law and regulations; AF Commander's Guide To Environmental Quality.

**THE STATUTE**

The Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901, _et seq._ , is the primary federal hazardous waste

management law. It is a "cradle-to-grave" statute, and controls generation, transportation, treatment, storage, and disposal of hazardous wastes. RCRA's "corrective action" provisions also govern cleanup of past hazardous waste sites,

called "solid waste management units" (SWMUs – or "schmoos") at RCRA permitted facilities. Sometimes these RCRA

"corrective actions" conflict to one degree or another with our cleanups being conducted under the Comprehensive Envi-

ronmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §9601, _et seq._ That is because CERCLA

(sometimes called the "Superfund law") is the primary federal statute governing the cleanup of past hazardous waste

sites, and CERCLA, in general, gives the Air Force the "lead," working with U.S. EPA, in cleaning up those sites

(through our Installation Restoration Program -- IRP).

When CERCLA governs, particularly for our sites on the National Priorities List (NPL), states may have very little to say

about how we clean them up. Under RCRA, however, due to its broad waiver of sovereign immunity, states have a great

deal of control over how the cleanup of SWMOs at permitted facilities is conducted. When such a site is governed by

both laws, conflicts may develop. Contact your SJA immediately if such a situation arises. Many states have enacted their

own hazardous waste laws closely modeled upon the federal RCRA. State regulators have authority, in many cases, to

administer RCRA provisions including storage and transport activities. Hazardous waste is broadly defined under the

RCRA. Generally, it is a waste which exhibits properties making it ignitable, corrosive, reactive, toxic, and/or is listed as a hazardous waste in regulations promulgated by the U.S. Environmental Protection Agency (EPA).

Unless the installation has a permit to store wastes for more than 90 days, RCRA requires hazardous waste generators

(for example, ANG bases) to ship these wastes to a bona-fide permitted disposal facility within 90 days of the date of be-

ing placed in temporary storage. RCRA also has strict rules about how long wastes can stay at the accumulation point

before being transferred to temporary storage. It is important to promptly identify hazardous wastes and contract for

their shipment and disposal within this 90 day time period if the facility does not have a RCRA permit allowing storage

for more than 90 days. All shipments of hazardous waste must be performed under a "manifest" (EPA Form 8700-22 or

equivalent state form). A manifest is a detailed shipping document intended to insure wastes are properly disposed of.

The manifest is a requirement for off-site transport and disposal of hazardous wastes, and must be completed with preci-

sion. The shipping manifest is a critical element in demonstrating compliance with RCRA.

**WHO IS RESPONSIBLE AND FOR WHAT**

Nearly every ANG unit qualifies as a "generating organization." For example, used solvents in a maintenance squadron, spent battery acid in a motor pool, and left-over paints from a "self-help" project, make each of these functions a "generating organization" responsible for proper disposal of hazardous waste. The Base Environmental Coordinator (BEC), in con-

junction with various other staff offices, must ensure compliance with ANG, EPA and applicable state regulations regard-

ing disposal of hazardous waste. Check with your BEC before you add or change any hazardous waste generating, trans-

porting, storage or disposal activities to ensure compliance with RCRA and any permit requirements. EPA statistics indi-

cate RCRA violations account for over 50% of the discrepancies noted during environmental audits. These violations can

bring $50,000 fines per day or imprisonment for one year. Hazardous waste is stringently regulated, potential fines are

high, and incarceration is a real possibility.

_**Air National Guard Commander's Legal Deskbook**_

419

_**Chapter 12 Environmental Matters**_

_**Section 12-4 Hazardous Waste Disposal**_

_**Page 2**_

_**KWIK-NOTE: Ensure you have a permit for all RCRA-regulated activities requiring permits. Ensure you have an accurate**_

_**inventory of all hazardous substances being purchased, generated, stored or disposed of by looking at your logistics records**_

_**and by thinking about what actions use or generate these substances.**_

**RELATED TOPICS:**

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**SECTION**

Border Clearance – Arrival of Aircraft from OCONUS

15-3

Criminal Liability of Commanders for Environmental Violations

12-2

Environmental Duties at Base Level

12-3

Occupational Health and Safety

12-9

Recycling Program

12-10

Personnel Liability of Federal and State Officials

18-9

Utilities

25-21

***

**Waste water developments**

Effective 26 March 2014 the USEPA released for public comment proposed changes for the Clean Water Act. These pro-

posed changes, if approved, will modify the definition of "Waters of the US." The changes would impose federal require-

ments on smaller head water streams, as well as intermittent ephemeral streams that only flow part of the year or after a

heavy rain. These area may now require Section 404 permits from the Corps of Engineers prior to any development or

change in use.

_**Air National Guard Commander's Legal Deskbook**_

420

_**Chapter 12, Environmental Matters**_

_**Section 12-5 Preservation of Historic Properties**_

_**Page 1**_

**Preservation of Historic Properties**

****

**Updated by Brigadier General Robert B. Burns (Ret), June 2014**

**AUTHORITY** : 16 U.S.C. 469 _et seq_.; AFI 32-7065, _Cultural Resources Management_ (13 Jun 94); applicable state law and regulations; AF Commander's Guide to Environmental Quality. 

## INTRODUCTION

The National Historic Preservation Act (section 106 in particular) and related statutes require Air National Guard Com-

manders to identify certain historic sites and objects under their control on ANG installations, take actions to preserve

historical and archeological data under some circumstances, and subsequently process the nomination of such sites to

the National Register of Historic Places. Historic places and archeological sites include properties having historical, architectural, archeological, or cultural significance.

**REQUIREMENTS**

Regulations promulgated pursuant to the National Historic Preservation Act (NHPA) and require Federal agencies to:

1. Provide leadership and assume responsibility in the preservation of the prehistoric and historic resources under their

control; and

2. Direct policies, plans, activities and programs to the maximum extent to assure good faith consultation with the Advi-

sory Council on Historic Preservation (ACHP) and the State Historic Preservation Officer (SHPO) prior to undertaking

any action that could adversely affect sites, structures, and objects listed or eligible for inclusion in the National Register.

_CONSULT WITH THE STATE HISTORIC PRESERVATION OFFICER BEFORE DEMOLITION OF HISTORIC BUILDINGS._

**SURVEY**

An installation must survey its property if it is probable that a survey would disclose properties which are sufficiently significant to be eligible for listing in the National Register of Historic Places. A minimum survey effort includes consulta-

tion with the SHPO and/or ACHP. The installation may also make inquiries to knowledgeable private and state institu-

tions familiar with the archeological nature of the area. Any pertinent information obtained should be sent to the His-

toric Preservation Officer at the NGB. Installations should develop a historic preservation plan to address significant his-

toric properties and inadvertent discovery situations.

**HISTORIC PRESERVATION PLAN**

Installations are encouraged to develop a historic preservation plan to address any significant historic properties identi-

fied in the survey summarizing how such properties will be handled operationally.

**AIR FORCE INSTRUCTION 32-7065**

AFI 32-7065 is subject to clarifying guidance which is being developed by ANGRC/CEV. AFI 32-7065 provides general

programmatic guidance which can be followed in the interim. Any questions about the applicability of AFI 32-7065 to

unique ANG situations should be directed to NGB-JA.

**RELATED STATUTES:**

\-- NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT (NAGPRA), 25 U.S.C. 3001

_**Air National Guard Commander's Legal Deskbook**_

421

_**Chapter 12, Environmental Matters**_

_**Section 12-5 Preservation of Historic Properties**_

_**Page 2**_

For activities on federally-owned land, NAGPRA requires consultation with Indian tribes or groups before intentional

excavation, or removal after inadvertent discovery, of several kinds of Native American cultural items, including human

remains and associated burial objects. Notification and a 30-day delay is required. For activities on Native American land,

owner consent is required before such excavation or removal. Inventories of cultural items in federally assisted museums

are to be generated. Repatriation of Native American cultural items is required. Violation of some sections of NAGPRA

are subject to civil and criminal sanctions.

\-- NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) (42 U.S.C. 4321 through 4347)

Although NHPA section 106 (which mandates review of historic properties) is separate from NEPA, and is not satisfied

by complying with NEPA, it is reasonable to coordinate studies done under 106 with NEPA documents.

\-- ARCHAEOLOGICAL AND HISTORIC PRESERVATION ACT of 1974 (AHPA) (16 U.S.C. 469)

If a project will affect historic properties that have archaeological significance, this act may impose additional require-

ments on an agency including notification of U.S. Dept. of Interior.

\-- ARCHAEOLOGICAL RESOURCES PROTECTION ACT of 1979 (ARPA) (16 U.S.C. 470aa through 470ll)

If federal or Indian lands are involved, this act may impose additional requirements, including permit requirements. This

act contains civil penalty provisions.

\-- AMERICAN INDIANS RELIGIOUS FREEDOM ACT (AIRFA) (42 U.S.C. 1996)

If a place of religious importance to American Indians may be affected by a project, the AIRFA promotes consultation

with Indian religious practitioners which may be coordinated with NHPA section 106 consultation.

**CONCLUSION**

The question of "what is historic" is a complex one. Any matter regarding the NHPA should be referred to the installation staff judge advocate.

_**KWIK-NOTE: Know the names, addresses, and telephone numbers of your SHPO and the ACHP, and seek their guidance to**_

_**help you fulfill your responsibilities to identify and preserve historic properties on your installation. Discovery of Native**_

_**American or other human remains and related cultural items should be coordinated with the installation staff judge advo-**_

_**cate.**_

**RELATED TOPICS:**

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**SECTION**

Base Facilities Board

3-4

Environmental Duties at Base Level

12-3

Facilities – ANG

25-9

Jurisdiction

2-5

_**Air National Guard Commander's Legal Deskbook**_

422

_**Chapter 12, Environmental Matters**_

_**Section 12-6 Environmental Impact Analysis Process**_

_**Page 1**_

**Environmental Impact Analysis Process**

**Updated by Brigadier General Robert B. Burns (Ret), June 2014**

**AUTHORITY** : AFI 32-7061, _The Environmental Impact Analysis Process_ (24 Jan 95); 42 U.S.C. 4321 through 4370b; AF Commander's Guide To Environmental Quality; President's Council on Environmental Quality (CEQ) Regulations 40 CFR

Parts 1500.1 through 1508.28.

**ENVIRONMENTAL IMPACT ANALYSIS PROCESS**

AFI 32-7061, _The Environmental Impact Analysis Process_ (EIAP) establishes policies, procedures, and responsibilities for implementation of the National Environmental Policy Act (NEPA). The NEPA program requires agencies to base decisions

regarding proposed federally funded actions on an understanding of the potential environmental effects of the action, rea-

sonable alternatives and the no-action alternative, in addition to purely mission-based factors. Proponents of the pro-

posed actions are responsible for initiating the EIAP early in the planning stages of a proposal. There are three major

outcomes/elements:

\- A Categorical Exclusion (CATEX) exempts a proposed action from further environmental analysis.

\- An Environmental Assessment (EA) is a document that provides evidence and analysis to determine if the action will

have impacts. If it will not have impacts, a Finding of No Significant Impact (FONSI) can be issued.

\- An Environmental Impact Statement (EIS) must be prepared if significant impacts are possible. A Record of Decision,

summarizing the decision process, is then published in the Federal Register.

**PROPOSED ACTIONS**

The EA/EIS must have an adequate description of the operator's proposed action with adequate information on environ-

mental impact. The EIAP must be done _BEFORE the action is made or decided upon._ The purpose of the EA/EIS document is to provide the federal decision maker information about the environmental impact of various options that will serve the

federal need. The key principle in NEPA is knowledgeable decision making based on reasonable options.

**MEASURING SUCCESS**

EIAP actions identified and progress of phases is effectively monitored;

EIAP actions having operational mission impact have viable alternatives;

EA/EIS has several viable options, instead of a single well-documented option, to provide the decision maker with viable

choices with different tradeoffs;

EA's and EIS's are adequately funded; and Public Affairs is actively involved in the EIAP.

_**KWIK-NOTE: For some actions at your installation, you are required to consider environmental impact, as well as mission**_

_**requirements. Consult your base environmental engineer and staff judge advocate if questions arise in this area.**_

**RELATED TOPICS:**

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**SECTION**

Environmental Duties at Base Level

12-3

Preservation of Historic Properties

12-5

_**Air National Guard Commander's Legal Deskbook**_

423

_**Chapter 12, Environmental Matters**_

_**Section 12-7 Air Emissions**_

_**Page 1**_

**Air Emissions**

****

**Updated by Brigadier General Robert B. Burns (Ret), June 2014**

**AUTHORITY** : AFI 32-7040, _Air Quality Compliance_ (9 May 94); 42 U.S.C. 7401 through 7642; applicable state law and regulations; AF Commander's Guide to Environmental Quality.

**AIR EMISSIONS**

Air Guard installations have sources of regulated air pollutants. These sources may require operating permits, permits

for new construction or permits for major modifications. Operational permits include vehicle and industrial operations,

painting facilities, electrical power generation, and fuel dispensing.

Major sections of the Clean Air Act (CAA) regulate greenhouse gases, stratospheric ozone, new and used automobile

emissions, chemical plants, electric utilities and hazardous air emissions. This section focuses on the sections of the

CAA that are most applicable to ANG facilities.

**NATIONAL AMBIENT AIR QUALITY STANDARDS AND AIR QUALITY CONTROL REGIONS**

The CAA requires the U.S. Environmental Protection Agency (USEPA) and state departments of environmental quality

(SDEQ) to create National Ambient Air Quality Standards (NAAQS). The United States has been split into air quality

control regions. Each region's air is tested to determine whether that region is in attainment, non-attainment or mainte-

nance with the applicable NAAQS. A non-attainment area is an area that does not meet the NAAQS for one or more of

the six criteria pollutants (particulate matter, ozone, carbon monoxide, sulfur dioxide, oxides of nitrogen, and lead). A

maintenance area is the name given to an area that was previously designated non-attainment pursuant to the CAA

Amendments of 1990, and subsequently redesignated attainment (an area which meets all NAAQS). Various levels of

NAAQS violations describe regions in non-attainment status. Levels include moderate, serious and severe.

**STATE IMPLEMENTATION PLANS**

The states responsible for the region in violation of a NAAQS must create and implement a State Implementation Plan

(SIP). SIPs are state or regional plans that include an emissions inventory and a plan on how the states will bring the re-

gion into compliance with the violated NAAQS. Direct and non-point or area emissions are included in the SIP emis-

sions inventory. Each time a region is placed in a more severe category of non-attainment, a new SIP must be accom-

plished, potentially reducing emission budgets for permit holders.

**PERMIT PROGRAM**

The primary method of controlling or managing emissions is through the air emission permit program. Each facility that

expects to emit over a specified amount of a regulated pollutant into the air must obtain a permit prior to operation of

new unlicensed/unpermitted or modified previously licensed/permitted equipment. Permits are issued by SDEQs or the

USEPA. Many CAA violations or criminal prosecutions are generated from bad or fraudulent record keeping required by

permits, tampering with permit required emissions control equipment or violations of permit emissions limits.

**EMISSIONS OFFSETS**

A key feature of the NAAQS/SIP/permit program involves emissions offsets. When an area is in violation of the applica-

ble NAAQS, the SIP will call for increasing levels of offsets or reductions in overall emissions prior to authorizing any

new emissions for the permit applicant. Offset levels are based on the level of non-attainment. For example, to get a per-

mit to emit one ton of sulfur dioxide (SO2) per year, the facility, in conjunction with the SDEQ, must find a 1.5-ton SO2

_**Air National Guard Commander's Legal Deskbook**_

424

_**Chapter 12, Environmental Matters**_

_**Section 12-7 Air Emissions**_

_**Page 2**_

reduction (a 1.5 offset or reduction) somewhere else. Reductions have been accomplished by a permit applicant paying

the local county public vehicles to be converted to natural gas, the emissions trading program (allows transfers of other

companies permit based "right to pollute" through reductions in maximum authorized emissions) or by installing emis-

sions control equipment at other facilities.

The level of NAAQS non-attainment severity automatically ratchets to the next higher level of noncompliance (e _.g._ serious to severe) if the region fails to attain conformity with NAAQS in a specified amount of time. The offset reductions

required for new emission permits increase as the region automatically ratchets into the next higher non-attainment cate-

gory or the actual air quality gets worse.

**FEDERAL CONFORMITY DETERMINATION REQUIREMENT**

A conformity analysis is required for any federally funded action ( _e.g._ , a new squadron of aircraft being added to an Air Guard base) which will occur in a non-attainment or maintenance area and which may result in an increase of emissions

above _de minimis_ levels. A conformity analysis is performed to ensure a proposed federal action will conform to all requirements of the applicable SIP or Federal Implementation Plan (FIP – created by EPA when states fail to gain approval for a

required SIP). The conformity analysis must consider all direct and indirect emissions, which will be associated with the

Federal action. Conformity requirements can be found in Title 40 CFR Part 93, Subpart B. The conformity analysis for

new construction or mission modification is commonly accomplished as a part of the National Environmental Policy Act

(NEPA) environmental assessment (EA) or the environmental impact statement (EIS) process.

**CAA SECTION 112 HAZARDOUS AIR POLLUTANT PROGRAM**

CAA Section 112, found at 42 USC section 7412, tightly regulates a number of specified hazardous air pollutants in addi-

tion to all the other air emissions requirements found in the CAA. The section 112 program, including the National

Emission Standards for Hazardous Air Pollutants (NESHAP) regulations, is extremely complex. Consult your base envi-

ronmental manager and your staff judge advocate to answer questions about the section 112 program.

**SOLUTIONS**

Commanders should verify with the base environmental coordinator that the following programs have been established:

\- Document compliance with the Conformity Rule in "non-attainment" areas;

\- Ensure that installation emission growth is specified in the state SIP Emission Budget;

\- Complete the Installation Emission Baseline Inventory;

\- Complete and submit operating permit application if necessary;

\- Operating permit record keeping, reporting, and monitoring program;

\- New construction and major modification permitting review;

\- Emission control technologies requirements program; and

\- Accidental release reporting under risk management plans.

_**Air National Guard Commander's Legal Deskbook**_

425

_**Chapter 12, Environmental Matters**_

_**Section 12-7 Air Emissions**_

_**Page 3**_

**MEASURING SUCCESS**

\- All construction or modification projects have proper permits to allow on-time construction if regulated emissions are

expected;

\- All construction or modification activities are in compliance with state or regional SIP objectives;

\- Conformity is documented and demonstrated for all proposed federal actions (required prior to commitment or expendi-

ture of federal funds);

\- Accurate self-reporting and correction of permit violations;

\- No accidental releases; and

\- No violations of the NESHAP regulations.

More information can be found at the USEPA web site containing information on the CAA: http://www.epa.gov/oar/

Installations are expected to encounter greater difficulty complying with air quality requirements as permitting rules of

the Clean Air Act are implemented, more stringent NAAQ standards are extended and implemented, increases in popula-

tion raise overall emissions faster than control equipment can reduce emissions and regions automatically ratchet into

higher levels of non-attainment.

_**KWIK-NOTE: Compliance with the CAA is a highly technical undertaking. Consult your base staff judge advocate or your**_

_**base environmental management section immediately when emissions or air quality issues arise.**_

**RELATED TOPICS:**

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**SECTION**

Environmental Duties at Base Level

12-3

_**Air National Guard Commander's Legal Deskbook**_

426

_**Chapter 12, Environmental Matters**_

_**Section 12-8 Hazardous Substance Spill Contingency Programs and Emergency Release Reporting**_

_**Page 1**_

**Hazardous Substance Spill Contingency Programs and**

**Emergency Release Reporting**

****

**Updated by Brigadier General Robert B. Burns (Ret), June 2014**

**AUTHORITY** : AFI 32-4002, _Hazardous Material Emergency Planning and Response Compliance_ (1 Dec 97); 42 U.S.C. 9601

through 9675, Comprehensive Environmental Response, Compensation and Liability Act (CERCLA); Executive Order

12856, Compliance with Right to Know Laws and Pollution Prevention Requirements, 33 U.S.C. 1251 through 1387,

Clean Water Act (CWA); 42 U.S.C. 6901 through 6991i, Resource Conservation and Recovery Act (RCRA); 42 U.S.C.

7401 through 7642 (Clean Air Act (CAA), 15 U.S.C. 2601 through 2692, Toxic Substances Control Act (TSCA), 42

U.S.C. 2014, 2021, 2021a, 2022, 2111, 2113, and 2114; Atomic Energy Act (AEA); related state and local regulations; AF

Commander's Guide to Environmental Quality.

**RESPONSE TO HAZARDOUS SUBSTANCE RELEASES**

This section discusses the most significant emergency planning, response and reporting programs related to hazardous

substance releases. There are numerous programs that require hazardous substance and environmental reporting that

are outside the scope of this section. Consult your environmental management office and your installation staff judge ad-

vocate (SJA) for more information.

Air Force, ANG and NGB policy requires prevention of oil and hazardous substance spills. Where spills do occur, take

immediate and direct action to minimize the threat posed to public health and the environment. Spills of hazardous sub-

stances and petroleum must be cleaned up immediately. Cleanup of spills is a mission-related cost that must be ad-

dressed by the activity responsible for the incident. Proper notification requirements must be followed. Commanders

should determine that proper spill cleanup plans exist and that the necessary notification requirements are understood.

**EMERGENCY NOTIFICATION / REPORTING REQUIREMENTS**

**CERCLA Section 103 (40 CFR Part 302.6, Part 300.405):** Section 103 requires that the release of a CERCLA hazard-

ous substance that meets or exceeds the reportable quantity (RQ) set forth in 40 CFR 302.4 must be reported to the Na-

tional Response Center (NRC). These substances account for, on average, 19% of all the notifications in the U.S. Environ-

mental Protection Agency's (USEPA) Emergency Response Notification System (ERNS) database.

**EPCRA Section 304 (40 CFR Part 355.40):** EPCRA requires that the release of an RQ or more of an EPCRA extremely

hazardous substance or a CERCLA hazardous substance (one pound or more if a reporting trigger is not established by

regulation) that results in exposure of people outside the facility boundary be reported to state and local authorities. No-

tifications are provided to State Emergency Response Commission (SERC) and Local Emergency Planning Committee

(LEPC) for releases greater than the RQ of hazardous and extremely hazardous substances. (NOTE: EPCRA does not ap-

ply to federal facilities by its own terms. However, pursuant to Presidential Executive Order and Air Force and DoD pol-

icy, the Air Force and ANG units must comply with EPCRA.)

**The Hazardous Material Transportation Act (HMTA) Section 1808 (49 CFR Part 171.15):** Section 1808 requires

that the release of a US Department of Transportation (USDOT) regulated hazardous material during transportation be

reported to the National Response Center (NRC) under certain circumstances such as death, injury, significant property

damage, evacuation, highway closure, etc. The Hazardous Materials Table (49 CFR Part 172.101) designates specific ma-

terials as hazardous for the purpose of transportation.

**CWA Section 311 (40 CFR Part 110.10, Part 300.300):** Requires that the release of oil be reported to the NRC if the

release: (1) violates applicable water quality standards; (2) causes a film, sheen or discoloration of the water or adjoining shoreline; or (3) causes a sludge or an emulsion to be deposited beneath the surface of the water or upon the adjoining

shorelines. Oil notifications account for, on average, 57% of all notifications in ERNS. _**Air National Guard Commander's Legal Deskbook**_

427

_**Chapter 12, Environmental Matters Section**_

_**12-8 Hazardous Substance Spill Contingency Programs and Emergency Release Reporting**_

_**Page 2**_

**State Regulations:** State regulations regarding hazardous substance releases vary from state to state. Most states have an emergency response program. Not all states regard oil as a hazardous substance, but most states require notification

of a spill if it presents a condition that may jeopardize public health, safety or the environment. State threshold require-

ments often are more stringent than federal requirements.

**EMERGENCY RESPONSE PLANNING**

EPCRA focuses on generating information on the amounts of chemicals stored and released from facilities. EPCRA re-

quires Air Guard units to report the locations and quantities of chemicals stored on-site to state and local governments.

EPCRA has three major planning aspects. The first is found in sections 301-303, Emergency Planning. These sections

require federal facilities that produce, store, or use any extremely hazardous substances in a quantity equal to or greater

than its threshold planning quantity (TPQ) to notify state emergency response commissions (SERC) and local emer-

gency planning committees (LEPC) of such. It also requires the development of a local emergency response plan. Installa-

tions must also provide a copy of the local emergency response plan to the LEPC.

Sections 311-312, Community Right-to-Know Reporting, require installations to submit material safety data sheets

(MSDS) and an inventory of chemicals on site to the LEPC. The MSDS and chemical inventory allows the local authori-

ties, including the fire department, to prepare for and respond to a release or emergency at a hazardous substance stor-

age facility.

Section 313, Toxic Chemical Release Inventory Reporting (TRI), requires installation-specific reporting of total releases

and off-site transfers (a transfer of wastes for treatment or disposal at a separate facility) of specific chemicals which exceed threshold values for activities that are not otherwise exempted from reporting. Air Force policy and guidance on Sec-

tion 313 are issued annually by memorandum prior to the 1 July data reporting deadline. Air Force policy for Section 313

is incorporated in AFI 32-7080.

Facilities are also required to report on pollution prevention activities and chemical recycling. The USEPA has further in-

formation on the TRI program at http://www.epa.gov/tri/

**SPILL PREVENTION, CONTROL AND COUNTERMEASURES PLANS (SPCCPs)**

SPCCPs describe preventive measures taken to avoid the discharge of oil/oil-related hazardous substances and addresses

countermeasures to be taken to address releases. SPCCPs are required under AFI 32-7041, Water Quality Compliance,

33 U.S.C. 1251 and 40 CFR Part 112 if:

The facility has the potential to spill oil or a hazardous substance in such quantity as would be hazardous to human

health, welfare or the environment, or

The installation has aggregated or single above-ground or underground oil/hazardous substance storage tanks above cer-

tain amounts, or

One or more hazardous substances are stored in quantities that would be harmful to human health or welfare or the envi-

ronment if a spill were to occur.

**SPILL AND HAZMAT INSTALLATION CONTINGENCY PLANS AND EMERGENCY RESPONSE**

Every Guard facility with the potential for a reportable spill must have a hazardous materials (HAZMAT) release re-

sponse plan under AFI 32-4002, _Hazardous Material Emergency Response and Planning Program,_ AFI 32-4004, _Emergency Response Operations,_ AFMAN 32-4013, _Hazardous Material Emergency Response and Planning Guide_ and 29 CFR Part 1910.120.

_**Air National Guard Commander's Legal Deskbook**_

428

_**Chapter 12, Environmental Matters**_

_**Section 12-8 Hazardous Substance Spill Contingency Programs and Emergency Release Reporting**_

_**Page 3**_

HAZMAT response plans require designation of an Installation On-Scene Coordinator and Installation Response Team.

HAZMAT and spill contingency plans provide for inspections to detect leaks, contingency planning for spills, logistics

requirements for clean-ups and reporting requirements. The HAZMAT response program coverage does not include the

nuclear accident or explosives accident response program. ( _See_ AFI 32-4001, _Disaster Preparedness Planning and Operations_ ).

**REPORTING PROCEDURES**

If there is a RQ release, the environmental coordinator should execute applicable reporting procedures. It may be neces-

sary to notify the NRC, State/Local Authorities (LEPC/SERC), HQ ANG/CEQ and/or NGB/JA by phone within specified

time limits. Ensure your wing and state headquarters public affairs officer is notified immediately of any releases. Ensure

all personnel are instructed to refer all media questions to the wing and/or state headquarters public affairs officer.

**MEASURING SUCCESS**

Have/perform the following:

Federal, state and local emergency spill notification telephone numbers available to environmental flight, HAZMAT/

SPILL response teams and other offices specified in response AFIs;

Ensure public affairs officer has appropriate contingency response plans for hazardous substance releases and environ-

mental issues as well as points of contact information for NGB/PA environmental section;

List of all reportable chemicals on base as well as the RQ for each substance;

Contingency plans addressing releases of hazardous substance/oil;

Coordination / correspondence / EPCRA reports between the unit and the SERC and LEPC discussing efforts to comply

with applicable laws;

All required training for emergency response and HAZMAT handling accomplished and documented;

Current MSDS sheets available in all duty sections handling HAZMAT substances;

Required response equipment available in serviceable condition;

EPCRA annual reporting or as required when HAZMAT inventory list changes or response plans change; and

Self-inspection and audits, such as environmental compliance audits and scheduled periodic maintenance inspections,

accomplished annually or as required to discover dangerous conditions or compliance problems (critical to reduce fines

or avoid criminal prosecution of command personnel).

**MORE INFORMATION:** Contact your installation environmental manager, unit staff judge advocate, HQ ANG/CEQ or

NGB/JAV for more information. See the web site www.afcec.af.mil for information, available training and regional points of contacts. Also refer to the US Environmental Protection Agency, Chemical Emergency Preparedness and Prevention

Office web site for planning, risk management, emergency response, international programs and counter-terrorism infor-

mation.

**RELATED TOPICS:**

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**SECTION**

Environmental Duties at Base Level

12-3

_**Air National Guard Commander's Legal Deskbook**_

429

_**Chapter 12, Environmental Matters**_

_**Section 12-9 Handling Inspections and Responding to Notices of Violations**_

_**Page 1**_

**Handling Inspections and Responding to Notices of Violations**

****

**Updated by Brigadier General Robert B. Burns (Ret), June 2014**

**AUTHORITY** : AFI 32-7040, _Air Quality Compliance_ (9 May 94); AFI 32-7041, _Water Quality Compliance_ (13 May 94); AFI 32-7042, _Solid and Hazardous Waste Compliance_ (12 May 94); AFPAM 32-7043, _Solid and Hazardous Waste Management Guide_ (1 Nov 95); AFI 32-7044, _Storage Tank and Compliance_ (25 Apr 94); AFI 32-7045, _Environmental Compliance Assessment and_ _Management Program_ (1 Jul 98); AFI 32-7060, _Interagency and Intergovernmental Coordination for Environmental Planning_ (25

Mar 94); AFI 51-301, _Civil Litigation_ (25 Jul 94); TJAG Policy 20, _Environmental Litigation_ ; TJAG Policy 22, _Contact With Pollution Control Authorities_. 

## INTRODUCTION

ANG units can reduce the number of violations cited by an environmental regulatory agency during inspections by taking

a few simple actions. Preparation and self-inspection are the key to avoiding violations of environmental law, avoiding

criminal prosecution of commanders and reducing fines.

A notice of violation (NOV) is issued by a regulatory agency when a violation of environmental law, agency regulations

or a permit is discovered by a regulatory agency and the regulatory agency does not wish to resolve the violation infor-

mally. Failure to report required information could also result in a NOV. A NOV triggers a formal administrative process

that demands specific requirements be met prior to the NOV being resolved, and may result in fines and/or penalties be-

ing levied. The unit/organization must respond within as little as 20 days. Failure to respond to any allegation may be an

admission of its truth.

Most NOVs can, and should, be negotiated and resolved between the facility and the regulatory agency. Air Force and Air

National Guard policy requires commanders to immediately report NOVs in accordance with Air Force Instructions.

The United States Environmental Protection Agency (USEPA) or the state departments of environmental quality (SDEQ)

will seek to negotiate a compliance agreement (CA) (also called consent orders) if the responsible command or unit fails

to adequately respond to the NOV or if a required response is late. The negotiated CA will specify corrective actions, tim-

ing of corrective actions and penalties. (NOTE: "Corrective actions" in the context of this NOV discussion are not the

same as RCRA "corrective actions" involving cleanup of SWMUs.) CAs are mutually agreed upon corrective action plans

that can be influenced positively by prompt responses by ANG units to regulatory requests, a clearly visible sense of ur-

gency in taking corrective action, good lines of communication and efficient management of the corrective action plan

addressing the violation.

Environmental regulators may also seek an injunction to shut down operations or a court order restricting operations.

Regulatory agencies will generally seek injunctions if they feel there is an imminent and substantial endangerment to hu-

man health or the environment. Regulators are likely to seek criminal prosecution of ANG members, including the com-

mander, or impose more restrictive permit requirements when an agency concludes an endangerment to human health

has occurred.

Regulatory agencies will issue an Administrative Penalty Order (APO) if they conclude the offending agency requires an

incentive to comply with environmental laws. The APO sets a penalty and conditions for returning to compliance.

Regulatory agencies generally can impose administrative fines for noncompliance related to hazardous waste. Whether

such fines and penalties may be levied against agencies or departments of the federal government depends upon whether

and to what extent Congress has waived sovereign immunity in the federal statute involved. Congress has, to one extent

or another, waived sovereign immunity in many of the federal environmental laws. However, those waivers are not

worded identically, and federal courts have not allowed state agencies to fine federal entities in all cases. Before pulling out your unit's checkbook to pay such an imposed fine or penalty, contact your JAG.

_**Air National Guard Commander's Legal Deskbook**_

430

_**Chapter 12, Environmental Matters**_

_**Section 12-9 Handling Inspections and Responding to Notices of Violations**_

_**Page 2**_

A unit may encounter regulatory agencies that do not understand the complexity of the rules applicable to ANG units in

the fines and penalties context. The law governing application of fines to federal activities and the law governing the relationship between federal and state authorities is extremely complex. The ANG is a hybrid organization that is partly fed-

eral and partly state operated. In its federal role, fines may be imposed against ANG units under limited circumstances.

In its role as a state militia, the ANG comes under the rules pertaining to the application of fines against state entities

under federal law. Environmental agencies also may not understand fiscal law limitations placed on federal funds and

thus tend to believe such restricted funds are available for compliance, remedial action or fine payments.

ANG units should be careful to obey all federal and state rules governing use of government funds when regulators at-

tempt to impose fines or penalties on ANG activities. Federal funds may be used for payment of environmental violations

or penalties only when allowed under federal fiscal law. In some cases, federal law specifically prohibits the use of spe-

cific funds for payment of penalties. For example, the 2000 Federal Military Appropriations Act for the DOD included a

provision prohibiting the use of any FY 2000 federally appropriated funds to pay any fines related to violations of environ-

mental law without prior approval of Congress. That may change, but do not pay fines, enter into any CA or agree to any

supplemental environmental projects (SEP) without receiving approval from your environmental manager, unit JAG,

state JAG, ANG/CEVQ and NGB/JAV.

Fines must be paid from unit operating budgets. Units should take action to obtain and maintain compliance with envi-

ronmental laws to avoid mission impact and reduction of funds available to fulfill environmental program objectives.

Commanders should ensure self-inspections are conducted under the current Environmental Compliance and Assess-

ment Program found in AFI 32-7045. Contact the environmental manager, the unit staff judge advocate and ANG/CEVQ

to determine the appropriate course of action when violations are found during self-inspections. Make every effort to en-

sure that all potential violations are first coordinated with the installation staff judge advocate and environmental man-

ager, public affairs officer, ANG/CEVQ and environmental counsel (NGB-JAV) prior to disclosure to regulators. A correc-

tive action plan should also be developed to address deficiencies resulting from a self-inspection.

**STEPS TO AVOID NOVS AND REDUCE PENALTIES**

Be prepared for inspections by regulators and treat inspections the same as you would any other inspection.

Conduct pre-inspections. Develop corrective action plans immediately when problems are found.

Take corrective action on easy to fix problems. Don't wait to be ordered to take action.

_Thoroughly_ document requests for funding corrective action or environmental law compliance. Clear notice to superiors in your chain of command of the critical need for funding for environmental law compliance or threats to human health _is_

_essential to avoid criminal prosecution_ of unit personnel and to reduce gravity-based penalties.

Ensure public affairs officer has contingency plans, telephone numbers to NGB/PAE environmental public affairs office

and has adequate training to understand environmental issues.

Attention to detail is critical. Many problems are found in poor documentation or faulty reporting.

Know and closely inspect areas that normally produce violations:

Hazardous waste management plans;

Personnel training records (lack of knowledge on emergency response or use of required safety equipment);

Hazardous waste transportation manifests and container marking;

_**Air National Guard Commander's Legal Deskbook**_

431

_**Chapter 12, Environmental Matters**_

_**Section 12-9 Handling Inspections and Responding to Notices of Violations**_

_**Page 3**_

Condition of hazardous waste storage containers, containment structures and protective equipment;

Security;

Contingency plans and emergency procedures (lack thereof or inadequate);

Material Safety Data Sheets (MSDS) (out of date or missing);

Protective equipment required by AFOSH, OSHA or MSDS (missing or damaged); and

Air and water discharge monitoring reports required by permits (failure to report or erroneous data).

**RESPONDING TO INSPECTIONS AND NOVS**

Select and brief an escort team to go with inspectors. Ensure PA officer and JA are aware of inspection.

Ensure inspectors have proper credentials. Ensure your environmental manager is aware of the current credentials that

state and federal regulators use to gain entry to conduct environmental compliance inspections (also a force protection

and counter terrorism issue).

Make a reasonable attempt to ensure inspectors have required safety equipment and briefings when inspectors go into

hazardous areas; ensure your environmental manager is fully trained on the rules pertaining to safety of inspectors, what

restrictions your unit can legally apply to inspectors and has a copy of SDEQ and USEPA rules and policies governing in-

spections.

Make required notifications to get assistance ( _e.g._ environmental manager, JA, ANG/CEVQ, public affairs).

Do not wait to resolve problems. Take immediate action when problem is pointed out.

Cooperate with regulating agency. Good relations are a critical factor in resolving problems.

Attempt to preserve all evidence and information. Request a copy of all documents inspectors wish to remove. Request

an inventory of all items inspectors seize or remove. Take your own inventory of all items seized. Take notes of all com-

ments relating to environmental law compliance inspectors make during the inspection. Photograph all items, areas or

equipment inspectors indicate are potential sources of violations.

Ensure all responses are within specified time limits.

Ensure all compliance agreements proposed by regulators are immediately coordinated with unit/state JAG, NGB/JA and

ANG/CEVQ prior to any response to the regulating agency. NEVER SIGN A COMPLIANCE AGREEMENT without staff

judge advocate (unit, state and NGB/JAV) coordination.

Ask for clarification of any violation and, if possible, ask for the opportunity to correct the problem in the presence of inspectors.

_**KWIK-NOTE: Preparation and self-inspection are the key to avoiding violations of environmental law, avoiding criminal**_

_**prosecution of commanders and reducing fines.**_

_**Air National Guard Commander's Legal Deskbook**_

432

_**Chapter 12, Environmental Matters**_

_**Section 12-10 Recycling and Waste Diversion Program**_

_**Page 1**_

**Recycling and Waste Diversion Program**

****

**Updated by Brigadier General Robert B. Burns (Ret), June 2014**

**AUTHORITY** : 10 U.S.C. 2577; 40 U.S.C. 484; AFI 32-7042, _Solid and Hazardous Waste Compliance_ (12 May 94); 42 U.S.C.

6901 to 6992k; Executive Order 13101; AF Commander's Guide To Environmental Quality. 

## INTRODUCTION

There are enormous potential benefits derived from an installation Resource Recovery and Recycling Program (RRRP)

and/or the Qualified Recycling Program (QRP). The environment is better maintained and waste output is reduced,

thereby saving taxpayer dollars.

**KEY PLAYERS**

The civil engineering squadron or the environmental management office runs the RRRP and/or QRP program. The recy-

cling or solid waste diversion program may be managed by the pollution prevention chief, a designated qualified recy-

cling program manager (in writing), a solid waste manager or the pollution prevention (P2) chief. The organization of

the RRRP or QRP program depends on the recycling or waste diversion opportunities as well as available funding.

**SOLID WASTE DIVERSION VERSUS RECYCLING**

The pre-1998 RRRP or QRP program focused only on easily recyclable materials. Recyclable materials were those which

are normally discarded and that may be reused after undergoing some type of physical or chemical processing. Recyclable

materials do not include precious metal-bearing scrap, such as film, and those items which may be used again without

special processing, such as vehicle parts or electrical components.

The new RRRP and QRP program focuses on solid waste diversion, which is much more comprehensive than the conven-

tional recycling program. The term "solid waste" refers to non-hazardous municipal refuse type of materials. It includes

anything that might be sent to a municipal dump or solid waste disposal site.

**REQUIRED RECYCLING**

Executive Order (EO) 13101, Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition,

dated September 18, 1998, together with the Resource Conservation and Recovery Act (RCRA) Section 6002 govern

waste diversion and recycling. EO 13101 and RCRA require the recycling of certain materials if more than a specific

amount is generated, and require each agency to set goals for solid waste prevention and recycling. EO 13101 replaces an

earlier EO from 1996 that had very limited requirements.

The post-1998 DOD and AF goal under EO 13101 requires greater than 40% of solid waste be diverted from waste dis-

posal sites by 2005. At the end of the second quarter of FY2000, the Air Force reported a diversion rate of 35% without

construction and demolition (C&D) debris and 67% with C&D. The diversion rate goal also requires installation waste

management programs to provide an economic benefit by 2004. Economic benefit is determined by comparing the diver-

sion program's potential costs of simply disposing the solid waste without any solid waste diversion to the actual pro-

gram costs (with diversion).

The economic benefit goal looks at what an installation is diverting and what costs are saved by diversion. The Air Force

will initiate an investigation of the installation RRRP or QRP program if diversion costs exceed disposal costs after

FY2004 (the break-even year).

_**Air National Guard Commander's Legal Deskbook**_

433

_**Chapter 12, Environmental Matters**_

_**Section 12-10 Recycling and Waste Diversion Program**_

_**Page 2**_

A critical difference between the new rules and the old is that the new rules widen the categories of items that qualify

under the waste diversion program. Installations can now take credit for mulching, donating items to charities, recondi-

tioning of vehicle antifreeze, use of demolished building concrete to create gravel roads, sending items to the Defense

Reutilization Management Office or any other diversion from landfills by weight. The RRRP or QRP no longer addresses

only paper, plastic and aluminum cans. The program focuses on waste diversion from landfills. Organizations must now

look under both recycling and solid waste program regulations to find RRRP or QRP information as this program moves

away from easily recyclable items with high commercial value.

**ENFORCEMENT**

The U.S. Environmental Protection Agency (USEPA) has implemented an initiative to carry out the provisions of RCRA

Section 6002 and EO 13101. The initiative, scheduled for implementation during FY 2000, will consist of inspection ac-

tivities carried out pursuant to section 403 of EO 13101. The EPA EO 13101 initiative will initially emphasize field-level

awareness and compliance assistance focusing on federal facility responsibilities pursuant to RCRA section 6002.

The EPA policy guidance indicates that violations of RCRA section 6002 by federal agencies do not give rise to adminis-

trative penalty actions or orders under RCRA's enforcement authorities. This conclusion does not, however, limit EPA or

the authorized states with RCRA authority to issue notices of violation (NOVs) or enter into compliance agreements at

federal facilities for violations of RCRA section 6002 discovered during EO 13101 section 403 inspections. Local citizen

groups may also attempt to take action pursuant to RCRA section 7002 for violations of RCRA 6002 requirements.

**FURTHER INFORMATION**

Air Force Center for Environmental Excellence (AFCEE) has a great deal of program guidance on RRRP, QRP, DOD EO

13101 and AF EO 13101.

EPA guidance document "Conducting Inspections of Federal Facilities for Compliance with Section 6002 of the Resource

Conservation and Recovery Act," see http://www.epa.gov/compliance/resources/policies/civil/federal/rcra6002.pdf

For EPA Comprehensive Procurement Guideline (GPG) information with EPA background documents, recycled content

product fact sheets, and recycled content product manufacturer and distributor lists, see: http://www.epa.gov/cpg

Office of the Federal Environmental Executive site provides the full text of Executive Order 13101, the Strategic Plan to

Implement EO 13101 and other buy recycled information. See: http://www.ofee.gov

_**KWIK-NOTE: Ensure your installation has a RRRP or QRP program. Ensure the RRRP or QRP reports are being sent as**_

_**required by both programs.**_

**RELATED TOPICS:**

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**SECTION**

Civil Associations and Military Corporations

22-2

Environmental Duties at Base Level

12-3

Hazardous Waste Disposal

12-4

Morale, Welfare and Recreation (MWR) Programs, Activities and Facilities

22-4

_**Air National Guard Commander's Legal Deskbook**_

434

_**Chapter 12, Environmental Matters**_

_**Section 12-11 What Questions Should I Ask My Installation Staff?**_

_**Page 1**_

**What Questions Should I Ask My Installation Staff?**

****

**Updated by Brigadier General Robert B. Burns (Ret), June 2014**

**OVERALL FACILITY PROGRAM**

What is our compliance status?

Is the environmental management program sufficiently staffed and funded to ensure environmental compliance?

What NOVs/NONs did we receive during the past year?

What NOVs/NONs are still outstanding?

Do we have any Compliance Agreements or Consent Orders?

What is our working relationship with the regulatory agencies?

What environmental projects have we submitted? Which of these are critical, must-fund projects and why? What envi-

ronmental and natural and cultural resources training programs do we have?

What environmental and natural and cultural resources projects are underway or scheduled? Have National Environmen-

tal Policy Act (NEPA) requirements been considered?

Do we have any construction projects that do not have either an Environmental Assessment or an Environmental Impact

Statement under NEPA?

When was our last Environmental Compliance Assessment Management Program (ECAMP) inspection performed? By

whom? What deficiencies were found? What is being done to correct those deficiencies? Are we receiving environmental

support from other Air Force or DOD agencies? Do we need support? How do we obtain support?

What permits do we have?

Who are our regulators?

Do we have HAZMAT release response contingency plans? Do we know all of the emergency release reporting numbers

(local, state and Federal)? Do we have a system to quickly determine if we have a reportable quantity (RQ) spill? ( _i.e._ , is this a substance that has reporting requirements and how much is the RQ for that substance – in some cases, it is as little as one ounce)

Do we have a designated and pre-briefed team that is prepared to escort environmental inspectors in site inspections?

**HAZARDOUS WASTE MANAGEMENT PROGRAM**

How much hazardous waste do we generate each month? How much hazardous waste did we generate in each of the last

three years? If waste generation is increasing or static, why? Shouldn't we be reducing waste generation under pollution

prevention programs?

Do we generate low level radioactive waste?

Where and how much hazardous material is stored on our installation?

When is the last time a visual inspection of the containment facilities was accomplished by a qualified environmental en-

gineer specializing in the control of hazardous substances or waste?

What type of hazardous waste storage do we have (accumulation, 90 day, or permitted)?

What are our hazardous waste disposal costs?

What is the status of our hazardous waste inventory? What is the date?

How do we dispose of our hazardous waste? Do we use the Defense Reutilization and Marketing Office (DRMO)?

Have there been any liability problems with our hazardous waste disposal company?

Do we have a RCRA Part B permit or is a RCRA Part B permit application pending approval?

What storage, treatment, or disposal units are on the permit?

Are there other storage, treatment, or disposal units that should be included on the permit (or permit application)?

How many Solid Waste Management Units (SWMUs) are on the Part B permit?

Do we have a corrective action requirement to fulfill under the RCRA Part B permit? Who is responsible for this and

when is it due?

Do we have a designated responsible action official for hazardous waste?

_**Air National Guard Commander's Legal Deskbook**_

435

_**Chapter 12, Environmental Matters**_

_**Section 12-11 What Questions Should I Ask My Installation Staff?**_

_**Page 2**_

What is the status of the Facility Hazardous Waste Management Plan (FHWMP)?

Do we have a list of designated contacts from each tenant for the FHWMP? Are periodic meetings held to discuss require-

ments and problems?

Are there any problems with tenant organizations complying with our facility requirements?

Do we have any property leased to commercial firms? Do they generate hazardous waste? How is it disposed?

**POLLUTION PREVENTION PROGRAM**

Are we in full compliance with the Emergency Planning and Community Right-to-Know Act (EPCRA) requirements?

Are we required to submit a Toxic Release Inventory (TRI) report? If so, what are the results? Do we get our report sub-

mitted to state and local emergency response committees by the July deadline annually?

Do we have a system in the procurement program that avoids selection of hazardous substances when non-hazardous

substances available to meet mission requirements? (Required by pollution prevention executive order)

Do we have a Resource Recovery and Recycling Program or Qualified Recycling Program? Who manages the program and

how are program receipts distributed?

Are we working on compliance with the new solid waste diversion rate requirements that replaced the old recycling pro-

gram? Where are we in complying with the greater than 40 percent diversion goal by 2005? What is the status of our

Ozone Depleting Substances (ODS) conversion plan? Will we meet the AF, NGB and ANG mandated dates for phase-out

of all non-mission critical applications of Class I ODSs?

Have we completed our Pollution Prevention Plan? Is it updated annually? What is the status of its implementation?

What progress are we making toward reducing our releases of toxic chemicals and our generation and disposal of hazard-

ous and non-hazardous wastes?

Have potential substitutes been reviewed from a safety and health perspective as well as mission support? What meas-

ures are we taking to reduce or eliminate pollution from our base?

Is there good coordination and communication between host and tenant commands on issues like TRI reporting, pollu-

tion prevention planning, and ODS phase-out?

What cost avoidance or savings have we achieved as a result of pollution prevention?

**ENVIRONMENTAL RESTORATION**

Is our facility on the National Priorities List (NPL)?

Do we have any sites on the facility being addressed under the Defense Environmental Restoration Program (DERP)?

How many sites are under the DERP? What is the status of these sites?

Have we completed the Preliminary Assessment/Site Inspection (PA/SI)?

Is a Remedial Investigation/Feasibility Study (RI/FS) underway?

Do we have an Interagency Agreement (IAG)?

Has a technical review committee (TRC) been established?

Is there a community relations plan (CRP)? Did the PAO prepare the CRP? Did we coordinate the CRP with NGB/PAE?

What is the regulatory relationship between the state and the EPA?

**OTHER ENVIRONMENTAL PROGRAMS**

What is the quality of our drinking water? Are we in compliance with the Safe Drinking Water Act?

How do we obtain our drinking water?

Do we provide drinking water to anyone off the facility?

Do we have any cooperative environmental programs with other organizations (such as resource recovery or recycling)?

Who is our representative to the Local Emergency Planning Committee (LEPC) (EPCRA requirement)?

Do we have any air pollution control permits? What is their status?

Do we operate a wastewater treatment facility? If so, what is the plant's condition, operating record and status of quali-

fied operator personnel?

_**Air National Guard Commander's Legal Deskbook**_

436

_**Chapter 12, Environmental Matters**_

_**Section 12-11 What Questions Should I Ask My Installation Staff?**_

_**Page 3**_

Do we have any wastewater discharge permits? How many compliance points? What is the status of the permits?

Do we meet our permit discharge limitations?

Do we have a pest management plan?

Do we have any Natural Resource Damage (NRD – under CERCLA) issues or claims on this installation? Do we know

who the Natural Resource Trustees are for any NRD claims? Have we had PA involvement in NRD?

Do we have a Natural Resources Management Plan?

Do we have a Historic and Archaeological Resources Protection Plan?

Do we have a current, approved Spill Prevention Control and Countermeasures (SPCC) Plan? (Under Clean Water Act

regulations)

When was the SPCC Plan last tested? Were deficiencies noted during the test? What is the status of corrective actions?

How many reportable spills have we had the past year? Were all spills reported properly? Have we analyzed the number

and size of spills? Is there a trend?

What is our PCB inventory?

How many underground storage tanks (USTs) do we have? What is their status?

Have funds been budgeted for testing/removing tanks and possible cleanups?

Do we have any environmental noise problems?

Do we have proper operating permits for our landfills?

Has all regulatory mandated training been completed and records retained?

How many people need training?

Do we have an environmental awareness training program?

Have all buildings been inspected for asbestos?

Do any buildings require asbestos abatement?

How many buildings have been tested for radon? Do any require remediation?

**QUESTIONS FOR YOUR PUBLIC AFFAIRS OFFICE**

How is our environmental program perceived in the community?

What is our relationship with local officials regarding environmental issues?

What is our relationship with the media on environmental issues?

What types of communication are used to inform the public and military dependents living in our housing areas about

our environmental program?

Are there good news stories from the Environmental Office that can be released to the media or our major claimant?

Do we have a public involvement and response plan? Is it being activated?

Are NEPA documents being thoroughly coordinated?

Is the Public Affairs Officer (PAO) actively participating? What actions are being taken to increase environmental aware-

ness of the workforce?

Do new military and civil service employees receive a new employee briefing and does it cover environmental programs?

Are any organized environmental groups interested in our facility? Who are they and what is our relationship?

**QUESTIONS FOR YOUR LEGAL OFFICE**

Is there coordination between key environmental personnel (i.e., installation environmental coordinator, state/

installation JAG, counsel at NGB/JAV, ANG/CEV) to ensure timely coordination of environmental issues?

How are our environmental permits reviewed by the legal office and ANG/CEV?

Are there hazardous waste sites on the facility not in compliance with environmental statutes?

Has the legal office coordinated the Air Force or ANG remedy with the EPA?

Is the legal (state/installation JAG and NGB/JAV) involved in negotiations for Compliance Agreements and Consent Or-

ders?

How does the legal office learn of regulatory changes (local, state and federal)? Will I receive prompt briefings on

changes?

_**Air National Guard Commander's Legal Deskbook**_

437

_**Chapter 12, Environmental Matters**_

_**Section 12-11 What Questions Should I Ask My Installation Staff?**_

_**Page 4**_

**QUESTIONS FOR YOUR OCCUPATIONAL SAFETY AND HEALTH OFFICE**

Have all appropriate personnel received the required Occupational Safety and Health Administration (OSHA) training?

Do all employees and military members have AF Form 55, Record of Safety/AFOSH Training, in their training records?

How are the Hazard Communications (HAZCOM) and other OSHA programs coordinated with the environmental plans

and programs for hazardous waste?

Does this command have an official policy which requires training prior to visiting or working at a hazardous waste or

hazardous materials site?

Does the AFOSH policy instruction contain specific requirements for the personnel safety aspects of the environmental

program?

What involvement does the AFOSH office and cognizant industrial hygienist have in reviewing potential or actual pollu-

tion prevention process changes?

Does the AFOSH Office have the list of locations and operations that require the use of personal protective equipment

(PPE)? Do training records substantiate training for the proper use of PPE? Do these lists and records include hazardous

waste and emergency response personnel? Are there adequate local procedures for stocking and issuing PPE?

What are the results of the last AFOSH Oversight Inspection? Are there deficiencies identified in the hazardous material,

hazardous waste or emergency response programs?

Are there any environmental-related health complaints on file? What is the resolution status?

Do employees or military personnel in high-noise areas or areas subject to exposure to hazardous substances receive an-

nual physicals under the medical monitoring program?

Who is reviewing the environmental contracts for safety and health requirements? Is the safety office reviewing contrac-

tor submissions for compliance with OSHA standards and contract requirements? Who coordinates and provides our in-

dustrial hygiene support? Are all of our designated personnel in a medical surveillance program?

**QUESTIONS FOR YOUR NATURAL RESOURCES MANAGER**

Do we have an approved Integrated Natural Resources Management Plan (INRMP) (Sikes Act)? Have INRMP milestones

been met according to the timeline in the INRMP? Has the INRMP been coordinated with ANG/CEV and NGB/JAV?

Do we have any agricultural leases or forestry programs? Is there a possibility of environmental contamination on these

parcels?

Has an endangered species inventories been completed and when was the last time it was done?

Are there mission conflicts with endangered species (animals, insects or plants) or marine mammals? Is there a plan or

mechanism for resolving such conflicts?

Is there coordination with the U.S. Fish and Wildlife Service (USFWS) and state wildlife agency?

Do we have hunting, fishing or natural resources-based outdoor recreation programs?

Is there adequate coordination between land use decision makers and natural resources managers?

How are natural resource programs funded?

Do we have soil erosion or sediment non-point pollution problems?

Do we have an Erosion Control Plan?

Do we have a wetlands inventory? Where are our wetlands? Do we have a process to get wetlands permits from the

Army Corps of Engineers (ACE) when we fill or excavate wetlands?

_**Air National Guard Commander's Legal Deskbook**_

438

**Chapter 13, Flying and Operations**

**Table of Contents**

**Section**

13 - 1 Table of Contents

13 - 2 Aerial Events, Flyovers, and Static Displays

13 - 3 Air Traffic Control Operations: Authorization and Liability

13 - 4 Aviation Career Incentive Pay

13 - 5 FAA - Investigation of Flying Violations by Military Members

13 - 6 Flying Evaluation Board

_**Air National Guard Commander's Legal Deskbook**_

439

_**Chapter 13, Flying and Operations**_

_**Section 13-2 Aerial Events, Flyovers, and Static Displays**_

_**Page 1**_

**Aerial Events, Flyovers, and Static Displays**

**Updated by Maj John W. Erickson, Jr., November 2008**

**AUTHORITY:** DoDD 5410.18, Public Affairs Community Relations Policy (20 Nov 01, Certified Current as of 30 May

07); DoD 5500.7-R, Joint Ethics Regulation (JER), Chapter 3 (Aug 93, C6, 23 Mar 06); AFI 11-209, _Aerial Event Policies_

_and Procedures_ (4 May 06); AFI 35-101, _Public Affairs Policies and Procedures_ (29 Nov 05); AFI 36-3101, _Fundraising Within the_ _Air Force_ (12 Jul 02); ANG Supplement 1 to AFI 11-209, _Aerial Event Policy and Procedures_ (6 Mar 08). 

## INTRODUCTION

In this topic we will discuss general rules and requirements for military participation in aerial events, including flyovers and static displays. We will only highlight the nature of the rules, as the regulations are quite specific and must be consulted prior to any decision regarding whether to support an off-base aerial event.

Since your involvement in aerial events will either be as a sponsor or participant, we will set forth some of the considera-

tions to help you determine which role is more appropriate for you in a given event. A sample Memorandum of Under-

standing (MOU) is provided in Attachment 1 to this topic which involves an air show with a local business group as the

sponsor, and an ANG unit, a state agency, and a private commercial air show company as participants. This is a common

sponsor and participant arrangement for these events.

Finally, this topic will focus on prohibited practices involving the sale of unit memorabilia by ANG units sponsoring or

participating in air shows.

As we begin our discussion, keep in mind this is a very sensitive area from the safety, financial, and abusive practices

standpoints. Proceed cautiously and protect yourself and your unit from any appearances of improper conduct.

**PURPOSES**

Air Force and Air National Guard participation in aerial events is governed by AFI 11-209. (For purposes of this Instruc-

tion, the Air Force Reserve and Air National Guard are functionally considered to be Major Commands.) This Instruction

states, as general guidance: "Air Force aerial events keep the public and military informed of U.S. preparedness, demon-

strate modern weapons systems, promote good community and international relations, support Air Force recruiting and

retention efforts, and render military honors." ****

**REQUIREMENTS**

Each level of command must approve aerial events described in Attachment 1 of the Instruction. Requests for flyovers for

events held on a military installation may be approved by the hosting MAJCOM, as provided in Air Force Instructions.

All requests for flyovers off military installations, other than for the five patriotic holidays, must be submitted to the

SAF/PA for approval. Each MAJCOM that takes part in or supports an aerial event must evaluate requests for aerial

events, coordinate with DoD (ASD/PA), SAF/PAC and other agencies to determine the extent of participation author-

ized. Waiver requests must be approved at the MAJCOM level prior to requesting any waivers to the Instruction from

HQ USAF/XOO.

AFI 11-209, Atch 1, defines numerous terms relative to aerial events. There are rules for both on base events and off base

events, and Attachment 2 to AFI 11-209 provides a matrix of approval levels for specific elements of an aerial event. Gen-

erally, the approval levels for passive events are at a lower level than are those for active flying. This Instruction further provides specific guidance as to: weather minimums; minimum altitudes; airspeeds; spectator areas; LAPES demonstrations; equipment drop demonstrations; helicopter assault demonstrations; parachute demonstrations; and static display

of aircraft.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 13, Flying and Operations**_

_**Section 13-2 Aerial Events, Flyovers, and Static Displays**_

_**Page 2**_

AFI 11-209 sets forth very specific guidance for the considerations of requests for, and the planning, approval, and execu-

tion of, military aviation flyovers. Any commander receiving requests for military flyovers should consult this guidance

prior to responding to requests for, and/or planning or seeking approval for, military flyovers. AFI 11-209 cautions

against premature statements of support or non-support for a planned civilian air show before receiving approval or dis-

approval; Air Force members must not indicate support or nonsupport to the sponsor of an off base aerial event until

SAF/PA approves or disapproves that event and their MAJCOMs approve or deny the use of operational resources. The

rules for designated spectator areas are extremely important from a liability standpoint, and planners should carefully

observe the prescribed distances and specifications and, whenever possible, provide additional buffers in the interest of

spectator safety. Coordination among all aerial event organizers and participants, with full understanding of all physical

structures and potential hazards, is imperative. The Italian air demonstration team tragedy at Rhein-Main Air Base sev-

eral years ago was significantly worsened when a tumbling aircraft snagged onto concertina wire and dragged it through

the crowd of spectators. In retrospect, an alternate method of crowd control other than the use of concertina wire might

have been chosen. The public relations aspects of air shows are discussed in AFI 35-101.

A Judge Advocate should ALWAYS be part of the commander's planning team for aerial events. Negligence claims and

lawsuits are always possible from invitees to our installations, and liability prevention is well worth the effort of extra

thought and coordination. Moreover, a Judge Advocate can provide insight on handling potential demonstrations, etc.,

which may occur at the aerial event.

**SHOULD YOU BE A SPONSOR OR PARTICIPANT?**

Your unit may either be a sponsor of the aerial event or a participant, i.e., either hosting it at your base or participating as a guest at another base.

If you sponsor the aerial event, you are responsible for raising the entire budget for it. By regulation, you, as a sponsor, can only have military displays as part of the event. The two main benefits to the ANG and your unit in particular, of having an air show, are enhanced community relations and recruiting. Many units either do not have the time or want the

responsibility of paying for the entire air show.

If you will have a co-sponsor of the event, you should pay special attention to Section 3-206 of DOD 5500.7-R, Joint Eth-

ics Regulation.

By having a civilian organization ( _e.g._ , local Chamber of Commerce) sponsor the air show, it can relieve your unit of an enormous financial burden, and permit civilian displays (of which there are many interesting and exciting ones) in addition to the military displays.

By having the air show at your base, with your participation and presence, you receive the community relations and re-

cruiting benefits with less of the financial burdens. Basic Air Force policy is to keep costs of its participation to a minimum. This can be done best by using local resources. Participation requiring additional cost to the government should be

avoided, unless considered in the best interests of the Air Force. Payment for these costs is based on two event catego-

ries: Primary Interest, in which all costs are borne by the Air Force unit or units involved; and Mutual Interest, in which

costs are shared by the Air Force and the sponsor. Even when your unit is a participant rather than the sponsor, there is

still much coordination to be done between your unit, the civilian sponsor, and other participating organizations, be they

military, civilian government, or private organizations. For example, you will have to resolve issues of billeting, per diem, and fuel, as well as the payment for these items, with visiting military organizations. It can be done either by your unit

paying for it or on a future reciprocation basis.

Additionally, since your base may host (not sponsor) part or all of the air show (some of the show may take place on an

adjacent civilian airport facility), issues of remuneration from the civilian sponsor to you for use of your land must be addressed. Generally, your unit cannot itself directly receive such remuneration, but you may have established a civil asso-

ciation or military corporation under your state's law, which may lawfully receive such money.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 13, Flying and Operations**_

_**Section 13-2 Aerial Events, Flyovers, and Static Displays**_

_**Page 3**_

Questions of security, crowd control, food concessions, parking of aircraft, payment to civilian performers, maintenance

services, volunteer services, clean-up, insurance and jurisdiction all need to be coordinated.

Policy guidance on use of O&M funds for community relations is provided in DoD Directive 5410.18, Section 4.9. With

regard to open house events, Section 4.12.8 of the same Directive provides, "No charges or fees shall be imposed by the

military installation or its agents for admission, parking, or viewing any activity."

**MEMORANDUM OF UNDERSTANDING**

The issues arising in these events can be addressed and provided for in either a memorandum of understanding (MOU)

or a contract (agreement) among the parties concerned, which includes your unit. Attachment 1 to this topic is a Memo-

randum of Understanding actually used among the various parties at an air show held partly on an ANG base and partly

on a civilian airport with a civilian sponsor at which the USAF Thunderbirds also participated. The MOU covers most, if

not all of the necessary considerations for having such an air show. The ANG unit concerned appointed one senior officer

as its Project Officer for the unit's participation, and the MOU was negotiated, drafted and extensively reviewed in close

consultation with the unit Staff Judge Advocate. Some of the provisions of Attachment 1 may not apply to every air show,

may not cover peculiar factual problems associated with your air show, and may have to be amended to conform to your

state's laws. It is offered here; however, as an example of what is needed to maximize protection to your unit and to help

ensure that you have a successful air show.

**SELLING MEMORABILIA AT AIR SHOWS**

DoDD 5410.18 prohibits the Air Force and its Reserve components (ANG) from competing with commercial enterprises

where a like service is available. From a public affairs standpoint, the primary reasons for supporting civilian sponsored

air shows is to promote aviation, display our hardware to the public, explain the mission of the units, show the public

the high caliber of people in the service today, and respond to the public interest in the DoD. As stated in AFI 35-101,

Para 8.41.1: "Open houses should not be (or convey the image of) a fair, carnival, circus, civilian air show, or display of

commercial products, and should inspire patriotism and aid in military recruiting."

AFI 36-3101, para.19 provides: "Official Endorsement." Under DoD 5500.7-R, Section 3-210.a., Air Force employees

may not officially endorse, or appear to endorse, fundraising for any non-Federal entity except for those specifically identified in JER Section 3-211. That section permits official support and endorsement of the CFC and AFAF. Under Section

3-210.a.(6), officials may also officially endorse and support fundraising activities when conducted by organizations com-

posed primarily of DoD employees (or their dependents) when fundraising among their own members for the benefit of

welfare funds for their own members (or dependents) when approved by the installation commander, after consultation

with an ethics official.

_**KWIK-NOTE: Follow the applicable regulations. Safety must be first. Air shows should not be viewed as money-making op-**_

_**portunities.**_

**RELATED TOPICS:**

**SECTION**

Access to Military Installations

3-2

Airport Joint Use Agreements

25-2

Civil Associations and Military Corporations

22-2

Community Relations Programs

6-4

Installations Jointly or Solely Occupied by the ANG

25-12

Jurisdiction

2-5

Leases and Armory Use Agreements

3-12

Media Relations and the Public Affairs Office

14-8

Memoranda of Understanding (MOUs)

6-6

_****_

_**Air National Guard Commander's Legal Deskbook**_

442

_**Chapter 13, Flying and Operations**_

_**Section 13-2 Aerial Events, Flyovers, and Static Displays**_

_**Page 4**_

_Attachment 1_

**MEMORANDUM OF UNDERSTANDING**

**SPONSORSHIP**

The _____________________ Chamber of Commerce (____ CC) and the _____________ State Department of Transporta-

tion (____DOT) agree to co-sponsor an Air Show at _________________________ Airport on ________________________ .

(The Air Show shall recognize completion of the ______________ base installation at ______________________ Airport).

The ________DOT sponsorship will be limited to providing airport space for parking of Civilian Military static display

aircraft; vehicle parking for the general public; obtaining FAA waivers; and appropriate airport services including Control

Tower Operations.

The _____________________________ Wing, _______________ Air National Guard, agrees to support the Air Show with

special invitation and assistance to various Department of Defense military units to participate with aircraft static dis-

plays and tactical air demonstrations.

_____ CC shall be responsible as the "managing sponsor" for overseeing the organization, marketing, promotion and actual conduct of the Air Show. To this end, _______ CC will contract with (private air show company) to provide profes-

sional coordination, marketing, and on-site management of the events and activities.

**AERIAL PERFORMERS**

_____ CC (through private air show company) will have responsibility for:

1. Selecting and executing contracts with civilian performers;

2. Parking and handling of civilian static display aircraft;

3. Providing agenda and scheduling of aeronautical performances; and

4. Arranging for all supporting activities and services.

______ DOT will have responsibility for:

1. Obtaining FAA Air Space Waiver for conduct of the two day air show;

2. Arranging for USAF Thunderbirds Team (with all associated costs to be paid by _____ CC Air Show Account as re-

quired under obligations with USAF); and

3. Coordinating Air Show support with ___________________________ (Contract Airport Operator) and

____________________ (Fixed Base Operator).

(ANG Unit) will have responsibility for:

1. Providing at its base installation aircraft parking for USAF Thunderbirds and military aircraft conducting tactical dem-

onstration flights / displays requiring special security procedures in accordance with Department of Defense directives;

2. Coordinating the invitation of tactical and static display military aircraft and advising ____ CC on per diem, transportation and other services;

_****_

_**Air National Guard Commander's Legal Deskbook**_

443

_**Chapter 13, Flying and Operations**_

_**Section 13-2 Aerial Events, Flyovers, and Static Displays**_

_**Page 5**_

3. Parking for military static display aircraft within the general display area;

4. Vehicle parking for military personnel via Route ____ entrance;

5. Overnight security for all military static display aircraft in general display area;

6. Payment of costs associated with exhibits unilaterally invited by the (ANG unit) that will be housed on the Air Na-

tional Guard Base and used in support of their participation in the event;

7. Access control to facilities located within the confines of the Air National Guard Base and any leased facilities the Air National Guard has outside of said confines; and

8. Providing aviation fuel for all participating military aircraft units including USAF Thunderbirds, tactical demonstra-

tions and static display aircraft.

**GENERAL SUPPORT AND SERVICES**

____CC and (private air show company) will be responsible for all necessary activities together will costs associated with

the preparation and conduct of Air Show activities including, but not limited to:

1. Highway traffic control;

2. Vehicle access including parking and crowd control;

3. Collection of admission fee (advance & gate);

4. Payment for civilian aerial performers;

5. Payment of all space costs associated with the USAF Thunderbirds and other military units participating in the event

as agreed to by the "managing sponsors." Payment or reimbursement of above costs shall be paid to either the U.S. Air Force, the Air National Guard, the (ANG Unit) or other Military Units as appropriate except if the "managing sponsor"

chooses to furnish lodging, meals, and/or transportation said costs shall be reduced in accordance with guidance pro-

vided in federal joint travel regulations. "Managing sponsor" shall also assume responsibility for additional costs including but not limited to: travel cost of military personnel and equipment; commercial shipping costs of exhibit materials

owned by agencies of the federal government when requested by the "managing sponsor;" and any rental space, utilities, custodial services or any additional services deemed necessary by the participating units and agreed on by the "managing sponsor;"

6. Concession arrangement, sanitary and trash facilities and clean-up;

7. Coordination of essential volunteer services;

8. Establishing a comprehensive budget and a separate Air Show Bank Account, preparing and issuing periodic budget

performance reports and also a close-out financial statement within 90 days after the Air Show;

9. Public Liability Insurance with State of ___________________; _____________________ State Department of Transporta-

tion; ______________ State Adjutant General's Department; (Contract Airport Operator); _______________________

Chamber of Commerce; (ANG Unit); Air National Guard; United States Air Force; Department of Defense; and the

United States of America as additional named insured; Personal Injury $10,000,000.00 minimum coverage; and Property

Damage $1,000,000.00 minimum coverage;

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 13, Flying and Operations**_

_**Section 13-2 Aerial Events, Flyovers, and Static Displays**_

_**Page 6**_

10. Reimbursement to (Contracted Airport Operator's) airport operations and maintenance staff, as necessary and/or re-

quested, to assist in setting up vehicle and crowd control barriers, facilitating and supporting air show operations and

effecting prompt clean-up on conclusion of the Air Show; and

11. Coordinate Fixed Base Operator aircraft servicing of military aircraft as required.

**DISTRIBUTION AND FINANCE**

Since the ___________________ Chamber of Commerce incurs responsibility for all basic costs, all revenue less produc-

tion costs will be retained and used by the Chamber for advancing the Chamber's community development goals. In rec-

ognition of the _____ CC role as managing sponsor and related cost responsibility, no fee for use of the Airport will be

charged. _____ DOT shall, in the event of a financial loss, be responsible for reimbursement to (Contractor Airport Op-

erator) for its overtime costs incurred in support of the Air Show.

**COORDINATION AND PLANNING**

____ CC, DOT and _____ ANG will work together to plan, organize and conduct an air show event that will bring credit

to each participating party.

This Memorandum of Understanding shall be subject to such corporate and executive approvals as may be required prior

to execution by an authorized official. If this Memorandum of Understanding meets with approval, please arrange for exe-

cution.

APPROVALS: (Unit) ___ANG ____CC _____DOT

BY: ____________________ __________________ _____________ TITLE: ____________________ __________________

_____________ DATE: ____________________ __________________ _____________

Enc.: Contract Agreement between _____CC and (private air show company)

cc: (Appropriate participants)

_**Air National Guard Commander's Legal Deskbook**_

445

_**Chapter 13, Flying and Operations**_

_**Section 13-3 Air Traffic Control Operations: Authorization and Liability**_

_**Page 1**_

**Air Traffic Control Operations: Authorization and Liability**

**Updated by Maj John W. Erickson, Jr., November 2008**

**AUTHORITY:** 32 U.S.C. § 502 (d)(3); Federal Tort Claims Act (28 U.S.C. § 2671 _et seq_.); AFI 13-203, _Air Traffic Control_ (30 Nov 05); AFI 51-501, _Tort Claims_ (15 Dec 05); and AFI 51-502, _Personnel and Government Recovery Claims_ (1 Mar 97); NGR 27-20/ANGR 112-1 (10 Jul 89), _Claims Against or In Favor of the United States Arising From National Guard Activities_ (10

Jul 89); applicable state law and regulations. 

## INTRODUCTION

Air National Guard members with an Air Traffic Controller AFSC may perform air traffic control functions at military

bases or civilian airports on a continuing or periodic basis. Two issues must be resolved by you, as commander, before

Guard members perform these functions:

(1) authorization for the duty; and

(2) liability coverage in the event of an incident involving personal injury and/or property damage.

Claims may arise for death, personal injury or property damage arising out of the noncombat activities of Air National

Guard members while performing duty under 32 U.S.C. sections 316, 502, 503, 504 or 505, when the members are act-

ing within the scope of their employment. _See_ AFI 51-501, Para. 5.10, 5.13. Air Force Settlement authorities settle claims arising out of the activities of the ANG, while the ANG member is acting under Title 32 or Title 10 orders, other than

noncombat, in accordance with AFI 51-501, Chapters 2, 3 or 4. If the claim arises out of activities of the ANG while un-

der STATE orders, such claim must be referred to state authorities.

There are four basic scenarios in which ANG Air Traffic Control units perform functions wherein questions of authoriza-

tion and liability may arise. Variables in the scenarios include: (1) the duty is being performed at a military base or civilian airport; (2) the duty is performed on a continuing or periodic basis; and (3) the duty is performed alone or with civil-

ian air traffic controllers. Each scenario will be discussed below, together with some of the authorization and liability coverage issues raised by such situations.

**ANG MEMBERS - MILITARY BASES - CONTINUING OR PERIODIC DUTY**

ANG members performing air traffic control duties at military bases on a continuing or periodic basis do so on orders

(for example, Annual Training - AT) or during inactive duty training (UTA) periods. Their duties are authorized and, if

they act within the scope of their employment ( _i.e._ , within the parameters of their orders, and complying with applicable regulations), they have liability coverage under the Federal Tort Claims Act (FTCA).

**ANG MEMBERS AND CIVILIANS - MILITARY BASE OR CIVILIAN AIRPORT - CONTINUING DUTY**

ANG members who, together with civilians, perform air traffic control duties at military bases or civilian airports on a

continuing basis do so pursuant to some form of Airport Joint Use Agreement, and the ANG member does so either pur-

suant to AT orders or during a UTA. AFI 13-203, para 1.8.1 states: "LOAs are established between Air Force units or

agencies on a particular base and a non-Air Force agency from the base or any unit or agency from another location. Rou-

tinely, LOAs are established between a supported wing and an FAA Approach Control or FAA ARTCC. Refer to the LOA

section of FAAO 7210.3 for formatting and guidance on general content of LOAs." The Airport Joint Use Agreement or

LOA should be staffed, approved or signed by civilian airport officials, local unit officials, state officials, the FAA, the gaining MAJCOM and the NGB. If the ANG members' duties are authorized, and they are acting within the scope of their em-

ployment ( _i.e._ , within the parameters of the agreement between the military and civilian agency), and they are acting under appropriate orders, they will have liability coverage under the FTCA.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 13, Flying and Operations**_

_**Section 13-3 Air Traffic Control Operations: Authorization and Liability**_

_**Page 2**_

**ANG MEMBERS - CIVILIAN AIRPORTS - PERIODIC DUTY**

This scenario involves ANG members who are asked to perform air traffic control duties at civilian airports from time to

time, usually for a specific reason or event (for example: a civilian air show).

ANG members are authorized to perform these duties only after certain requirements are met and approvals are ob-

tained. Typically, the first thing that happens is someone in the ANG air traffic control unit (usually the Commander or

the Chief of Air Traffic Control Operations - CATCO) receives a request from civilian airport authorities for the ANG air

traffic controllers to assist at the upcoming event. This request should be on the airport authority's letterhead and

should specify the dates, times, places, number of ANG members needed and reasons they are needed for a specified

event. The commander or CATCO will then request FAA approval for the ANG members to participate. Upon obtaining

FAA approval, the unit will send the airport's request and FAA approval, through channels to the MAJCOM, with a copy

to the NGB. Upon obtaining MAJCOM approval, the unit may then issue appropriate orders for the ANG members to

perform the requested duties.

Once this process has been completed, if the ANG ATC members are authorized to perform the requested duties, and

they act within the scope of their employment ( _i.e._ , within the parameters of their authorization, and acting under appropriate orders), they will have liability coverage under the FTCA.

This approval process must be completed for each separate request by a civilian airport authority for ANG members to

perform air traffic control duties at a civilian airport on a periodic basis.

**ANG MEMBERS AND CIVILIAN CONTRACTORS - MILITARY BASE OR CIVILIAN AIRPORT**

This scenario arises where the ANG or a civilian airport authority has contracted with a civilian firm to perform air traffic control duties, and where military air traffic control units seek to also perform such duties with the civilian contractor.

Two separate issues may arise. First, the civilian contractor may seek FTCA coverage for its own liability. Second, the ci-

vilian contractor may want reimbursement under the contract, should any work time be taken away from the civilian con-

tractors as a result of the ANG members' training.

ANG members are not permitted to perform air traffic control duties at military bases or at civilian airports with civilian

contractors until such time as specific agreement on all issues has been reached between the ANG, the civilian airport

authority (if applicable) and the civilian contractor. If and when such operational training by ANG ATC members is per-

mitted, ANG members must be authorized by appropriate orders to act, and act within the scope of their employment

(authority), before they will be afforded liability coverage under the FTCA. In absence of such permission, it is likely

ANG members would not be covered for liability under the FTCA, and could be held personally liable for negligence in

the performance of their duties.

**LIABILITY ISSUES**

Unless there is specific authority ( _i.e.,_ the member is authorized by appropriate orders under Title 32 or Title 10, and the member is acting within the scope of his employment) for Air Traffic Controllers to perform their function at civilian airports, they may not have liability coverage under the FTCA. This is true even if they were in a duty status at the time.

Being on orders or in a UTA status does not automatically afford FTCA protection; the duty must be authorized by appro-

priate authorities. Being in a duty status is not enough. If there is no FTCA coverage, the member may be personally li-

able for negligence. Remember, Commanders who permit or authorize UTAs or AT periods for activities that are not

authorized (example: unapproved work by military air traffic controllers at civilian airports), may also find themselves

PERSONALLY LIABLE for personal injury or property damage due to the negligence of their air traffic controllers.

_**Air National Guard Commander's Legal Deskbook**_

447

_**Chapter 13, Flying and Operations**_

_**Section 13-3 Air Traffic Control Operations: Authorization and Liability**_

_**Page 3**_

The phrase "acting within the scope of employment," as used in the Federal Tort Claims Act, AFI 51-501 and AFI 51-502

not only means that the member is acting under appropriate orders and authorization, but also that the member is quali-

fied to perform such duties. As commander, you are responsible for ensuring that your ANG ATC members are properly

qualified to perform the duties they are given, that the members are physically capable of performing the duty, and that

they do not violate applicable regulations in the performance of their duties. For example: if an ANG ATC member, who

has proper authorization and is acting under appropriate orders, performs duties in excess of the duty period prescribed

by FAA regulations and/or AFI 13-203 (which may be more restrictive than FAA regulations), the member may not be

acting within the scope of his or her employment. Further, if the member's supervisor ( _i.e._ , you, as commander) directed the member to work beyond the prescribed duty period, the supervisor may also be liable for the member's actions.

As you can see, liability issues trap the unwary and unprepared. Work closely with your Judge Advocate, your CATCO

and higher headquarters to ensure that the proper authorizations and orders have been issued prior to allowing your

ANG ATC members to perform duties at civilian airports. And make sure your ATC members are properly qualified and

supervised as they perform their duties.

_**KWIK-NOTE: Commanders of air traffic control units must ensure that their ATC members are properly qualified, acting**_

_**under appropriate orders, and properly supervised BEFORE they perform duties at civilian airports.**_

**RELATED TOPICS:**

**SECTION**

Aerial Events, Flyovers and Static Displays

13-2

Aid to Civilian Authorities

6-2

Airport Joint Use Agreements

25-2

Feres Doctrine

18-3

Installations Jointly or Solely Occupied by the ANG

25-12

Lawsuits Against National Guard Personnel

18-6

Personal Liability of Federal and State Officials

18-9

_**Air National Guard Commander's Legal Deskbook**_

448

_**Chapter 13, Flying and Operations**_

_**13-4 Aviation Career Incentive Pay**_

_**Page 1**_

**Aviation Career Incentive Pay**

**Updated by Maj John W. Erickson, Jr., November 2008**

**AUTHORITY:** 37 U.S.C. § 301a, _Incentive Pay: Aviation Career;_ Aviation Career Incentive Act of 1974; Aviation Career Improvement Act of 1989; DoD Reg. 7000.14-R, Department of Defense Financial Management Regulations (FMRs), Vol-

umes 1-15, date varies per volume; Volume 7A, Chapter 22, Section 2202, "Aviation Career Incentive Pay (ACIP) for

Rated or Designated Officers, Aviation Cadets and Warrant Officers" (chapter issued February 2001); AFI 11-401, _Avia-_

_tion Management_ (7 Mar 07).

**DEFINITION AND QUALIFICATIONS FOR ENTITLEMENT**

Aviation Career Incentive Pay (ACIP) is additional pay granted to rated members for the maintenance of their flying

skills and to encourage their retention in the armed forces.

The rules for entitlement to ACIP differ, according to whether the rated member's entitlement is governed by the Avia-

tion Career Incentive Act (ACIA) of 1974, or the Aviation Career Improvement Act (ACIA) of 1989. Generally, to qualify

for Continuous ACIP under the ACIA of 1974, a rated member must have performed operational flying duties (including

flying training, but not proficiency flying) for at least 6 of the first 12 years of aviation service, or 11 of the first 18 years of aviation service. The 12-year and 18-year requirements are referred to as "gates."

Under the ACIA of 1989, as amended by Section 616(a) of P.L. 104-106 in 1996, a rated member must have performed

operational flying duties (including flying training, but not proficiency flying) for at least 8 of the first 12 years of aviation service, or 12 of the first 18 years of aviation service.

Once rated members have fulfilled these requirements, known as "gates," they will be entitled to ACIP payments on an ongoing basis, regardless of whether their present duties involve or require flying or the maintenance of flying proficiency. Rated members who do not meet the requirements of their 12-year or 18-year "gates" may still be entitled to ACIP but generally must meet DoDFMR flying requirements in order to qualify for payment of ACIP. This is referred to

in AFI 11-401 as "Conditional ACIP" entitlement.

Continuous entitlement to ACIP ceases for rated members once they complete 25 years of service, assuming that the

rated member has performed operational flying duties for at least 11 (under ACIA of 1974) or 12 (under ACIA of 1989)

of the first 18 years of aviation service. Nevertheless, rated members below the grade of brigadier general (0-7) with

more than 25 years of service whose positions require performance of operational flying duty may be entitled to receive

Conditional ACIP if the rated member is assigned to operational flying duties. (Example: a fighter squadron commander

who holds the grade of 0-6, has 27 years as a pilot, and whose duties include flying with the squadron.)

In addition, continuous entitlement to ACIP ceases for rated members who have completed 22 years of service if the

member has performed operational flying duties for at least 9 but less than 11 (under ACIA of 1974) or at least 10 but

less than 12 (under ACIA of 1989) years of aviation service.

NOTE: General officers who have completed 25 years of service and who are assigned to operational flying duties may

qualify for Hazardous Duty Incentive Pay under the DoDFMR flying requirements.

**OPERATIONAL FLYING AND PROFICIENCY FLYING DISTINGUISHED**

**** Operational flying duties are those involving flying performed by rated members while serving in assignments which require the maintenance and development of flying proficiency (Example: pilots, navigators, observers, and other rated

_**Air National Guard Commander's Legal Deskbook**_

449

_**Chapter 13, Flying and Operations**_

_**13-4 Aviation Career Incentive Pay**_

_**Page 2**_

personnel assigned to rated positions in a flying unit who perform at least their minimum required missions every ****

month). This is contrasted with proficiency flying duty, which involves flying by rated members while they serve in as-

signments not requiring the maintenance of flying skills, such as MAJCOM staff positions and other career-broadening

billets.

**** NOTE: All flying performed by rated members of the Air Reserve components [ANG and USAFR] is deemed to be opera-

tional.

If you have a question regarding a rated member's entitlement to ACIP, consult your Flight Management Office, Base Fi-

nancial Manager or your Judge Advocate.

_**KWIK-NOTE: Know to whom, when and for how long ACIP is payable.**_

**RELATED TOPICS:**

**SECTION**

Flying Evaluation Boards

13-6

_**Air National Guard Commander's Legal Deskbook**_

450

_**Chapter 13, Flying and Operations**_

_**Section 13-5 FAA - Investigation of Flying Violations by Military Members**_

_**Page 1**_

**FAA – Investigation of Flying Violations by Military Members**

**Updated by Maj John W. Erickson, Jr., November 2008**

**AUTHORITY:** AFI 13-201, _Airspace Management_ (01 Dec 06); AFI 13-203, _Air Traffic Control_ (30 Nov 05).

**FAA REQUESTS FOR INFORMATION**

The Federal Aviation Administration (FAA) Flight Inspector's Handbook now encourages inspectors to determine the

identity of armed forces (including Air National Guard) pilots who are involved in alleged flying violations. Inspectors

may send written requests for pilot names to commanders through the Regional FAA Legal Counsel.

**POLICY - DO NOT RELEASE PILOT NAMES**

Air Force and Air National Guard Policy does NOT PERMIT THE RELEASE OF PILOT NAMES TO ANYONE, INCLUD-

ING THE FAA, during an investigation of alleged violations, absent prior specific approval by HQ USAF/XOO. The Fed-

eral Aviation Act of 1958 specifically requires that complaints against members of the armed forces are to be referred to

the Secretary of the department concerned for action. Military members are encouraged to cooperate with the FAA dur-

ing an investigation, without releasing any aircrew names. All reports or documents provided to the FAA should be sani-

tized so as not to reveal aircrew names. Call signs may be substituted for names.

**EFFECT OF RELEASE OF NAMES**

On past occasions, pilot names have been inadvertently released to the FAA by aircrew members or third parties, such as

Base Operations or Air Traffic Control personnel. It usually happens either by telephone or by signing a written state-

ment submitted to the FAA. Any inadvertent release of names should be referred up the chain of command.

These names, whether correct or not, once released, have been entered into a computer database of all pilots, both mili-

tary and civilian, who, in the past, have been involved in an alleged flying violation. This information can then be re-

leased to ANYONE who requests it, including airline representatives.

**ADVISE YOUR PILOTS**

Guard and Reserve pilots who are employed by civilian carriers, and all aircrews, should be made aware of the database

and should query the National Safety Data Branch, P.O. Box 25082, Oklahoma City, Oklahoma 73125, to see if their

names are included in the same. There is a nominal fee for the inquiry. If their names are included in the database, they

should contact their Staff Judge Advocate for guidance. The FAA is aware of the Air Force policy in this regard.

_**KWIK-NOTE: All information provided to the FAA should be name-sanitized.**_

**RELATED TOPICS:**

**SECTION**

Aid to Civilian Authorities

6-2

Aircraft and Missile Accident Investigations and Reports

16-3

Classified Material

14-2

Freedom of Information Act

14-11

Privacy Act

14-12

Releasing Information in Litigation

14-7

_**Air National Guard Commander's Legal Deskbook**_

451

_**Chapter 13, Flying and Operations**_

_**Section 13-6 Flying Evaluation Boards**_

_**Page 1**_

**Flying Evaluation Boards**

**Updated by Maj John W. Erickson, Jr., November 2008**

**AUTHORITY:** AFPD 11-4, _Aviation Service_ (1 Sep 04); AFI 11-402, _Aviation and Parachutist Service, Aeronautical Ratings and_ _Badges_ (25 Sep 07); Privacy Act of 1974, 5 USC § 552a. 

## INTRODUCTION

The basis for the USAF aviation service program is public law and is subject to interpretation by each service Secretary.

Policy application must be uniform among the services. Since AFI 11-402 supplements other Department of Defense

(DOD) guidance, the more restrictive provisions of the instruction apply to active duty personnel and members of the

Air Reserve Components (ARC). _See_ AFI 11-402, para 1.1.

A Flying Evaluation Board (FEB) is applicable only to rated officers. A rated officer has no inherent right to remain on

flying status. A rated officer does have an obligation to maintain certain professional standards. Accordingly, qualification for aviation service is subject to review when an officer's rated duty performance becomes suspect. _See_ AFI 11-402, para 4.2.

The purpose of the FEB is to examine a rated officer's professional qualification for aviation service, evaluate potential for future rated duties, and make recommendations to higher authorities. The functions of an FEB are administrative. An

FEB does not make recommendations regarding disciplinary actions. An FEB is not a punitive measure, nor a disciplinary

action, nor is it a substitute for action under the UCMJ, a state Code of Military Justice, or any other administrative directive when such action is warranted. Incidents that involve fitness or punitive liability make a rated officer subject to the same administrative or punitive actions as a nonrated officer.

An FEB is not an adversarial or judicial proceeding. It is an administrative board made up of members, qualified for avia-

tion service, who review another member's qualification for such service. It is a peer quality review. The board is fact-

finding in nature and conducted to ensure that all relevant information is reviewed and discussed in a fair and impartial

manner.

**NO COMMAND INFLUENCE**

The convening authority, whether because of personal feelings or otherwise must NOT EXERT ANY PRESSURE ON

ANY FEB MEMBER in an attempt to influence the findings or recommendations of the FEB. You may or may not want

the respondent disqualified, and you may have convened the FEB with either "fire in your eyes" or reluctance. Flying members on ANG bases form close attachments over the years, and when an FEB is convened, don't be surprised to have

the members of the flying unit of the respondent taking one side or the other on the issue. It usually happens. If the

"word is out" that you as the commander expect, or even want, a certain outcome from the FEB, those FEB members,

whose OPRs you probably write or indorse, will not be able to be fair and impartial in their FEB duties.

Because of the peer review nature of the FEB and what is ultimately at stake, the FEB proceedings will likely be a very

emotional experience for all concerned. Often the facts that have led you to convene an FEB appear different after they

have been fully aired at an FEB. Since a convening authority cannot be an FEB member, you will not have the insight into

the full assessment of those facts that FEB members will have.

Therefore, whether before, during, or after the FEB, you must not indicate or reveal your feelings about convening the

FEB or about an expected or desired outcome. And regardless of the outcome, you must not let it affect your future rat-

ings of the FEB's participants.

_**Air National Guard Commander's Legal Deskbook**_

452

_**Chapter 13, Flying and Operations**_

_**Section 13-6 Flying Evaluation Boards**_

_**Page 2**_

As convening authority, you are the wing or group commander who sets the tone for your unit and to whom all your

members look for leadership. In your decision whether to convene an FEB and in any subsequent FEB proceedings, you

must convey a sense of fairness, impartiality, and the attitude of "letting the chips fall where they may." The hardest duty any professional has to perform is to formally judge a peer. You will make the task more difficult to the extent you convey

a personal stake in its outcome. However, your avoidance of even the appearance of command influence will best ensure

the fair and impartial hearing that everyone, including the Air National Guard and the United States Air Force, has the

right to expect.

**WHAT ARE GROUNDS FOR CONVENING AN FEB?**

A flying unit commander must initially review the facts and circumstances of the situation, and AFI 11-402, Para. 4.3, to

determine whether specific grounds exist to convene an FEB. Before this review, and your determination whether to con-

vene an FEB, consult with the Staff Judge Advocate to ensure you are in compliance with the requirements of AFI 11-

402. _See_ Attachment 21 to AFI 11-402, _Checklist for Flying Evaluation Boards._ You don't do FEBs everyday, so by following the Staff Judge Advocate's advice and the checklist, as you go step-by-step through the FEB process, you will best ensure

all aspects of the FEB proceeding will be legally sufficient and that the findings and recommendations made by the FEB

will be sustained all the way up through HQ USAF.

AFI 11-402 states, in Paragraph 4.3: "Convene an FEB under any of the following conditions:"

1. Para. 4.3.1. _Extended Aviation Service Suspension or Disqualification._ A rated officer or CEA disqualified from aviation service for longer than eight years (at the time of submission for requalification), or whose aviation service has been invalid

for more than eight years, must appear before an FEB for approval of requalification or revalidation. EXCEPTION: For

extended medical disqualification, _see_ AFI 11-402, Para. 3.8.

2. Para. 4.3.2. _Lack of Proficiency._ Cause exists to convene an FEB when an aircrew member shows a lack of aircrew proficiency. This may include a lack of knowledge of flying directives or a negligent violation of flying procedures. This does

not apply to aircrew members enrolled in formal flying training programs.

3. Para. 4.3.3. _Failure To Meet Training Standards._ Failure to meet academic or flying standards while enrolled in a USAF directed formal flying training course requires an examination of the aircrew member's potential for continued aviation

service. Do not remove or disenroll a rated officer or previously qualified CEA from a formal flying training course with-

out MAJCOM/A3 approval, and do not administratively withdraw a rated officer or previously qualified CEA from a for-

mal flying training course when the individual is eliminated for failure to meet training standards. The method of disen-

rollment for these members is FEB action under this paragraph or FEB waiver. An FEB or FEB waiver evaluates retention

in (or removal from) training and qualification for continued aviation service.

NOTE: Airsickness is not cause for medical disqualification unless there is evidence of organic or psychiatric pathology.

However, rated aircrew members may meet a FEB under failure to meet training standards if airsickness interferes with

flying duties and prevents completion of training. Forward aeromedical summaries of airsickness cases through medical

channels to HQ AFMOA/SG3PF, 110 Luke Avenue, Room 405, Bolling AFB, DC 20332-7050. The aircrew member may

offer as evidence the results of any standard or experimental treatment program designed to treat airsickness. Do not use

non-participation in an experimental program as evidence of a lack of desire to fly.

4. 4.3.5. _Aircrew Requirements_. Cause exists to convene an FEB when an aircrew member fails to meet ground or flying training requirements IAW AFI 11-202, Volume 1 and MDS specific instructions, or annual physical examination requirements published in AFI 11-401 and AFI 48-123, Volume 3.

5. 4.3.6. _Violation of Other Aviation Instructions and Procedures._ Cause exists to convene an FEB when an aircrew member has committed an intentional violation of aviation instructions or procedures.

_**Air National Guard Commander's Legal Deskbook**_

453

_**Chapter 13, Flying and Operations**_

_**Section 13-6 Flying Evaluation Boards**_

_**Page 3**_

6. 4.3.7. _Habits, Traits, Characteristics._ Cause exists to convene an FEB when an aircrew member exhibits habits, traits of character or personality characteristics that make it undesirable to continue using the aircrew member in flying duties.

Do not administratively withdraw an aircrew member from a formal flying training course when the individual is being

eliminated under Habits, Traits, or Characteristics. Primary reasons to convene a FEB under this paragraph include:

4.3.7.1. _A suspected fear of flying._

4.3.7.2. _Chronic airsickness without an organic or psychiatric pathology._

4.3.7.3. _Attempts to limit aviation service_ , such as DOR from formal training courses, requests for voluntary disqualification based on a personal desire to terminate aircrew duty, or requests to decline a particular assignment following formal

training.

4.3.7.4. An FEB is not for punitive disciplinary action. It is not a substitute for action under the UCMJ or any other ad-

ministrative directives.

NOTE: Do not use any aviation service action as a substitute for administrative or disciplinary action. Incidents that in-

volve fitness or punitive liability make an aircrew member liable to the same actions as a non-aircrew member. When an

aircrew member exhibits questionable professional qualities, consider initiating action outlined in paragraph 3.7.1.6. Af-

ter completing that action, convene an FEB if the member's potential for continued aviation service is still in question.

**PRELIMINARY ACTIONS BY COMMANDER**

Once grounds exist under AFI 11-402, the convening authority (usually a wing, group or comparable level commander of

the aircrew member's flying unit) must then determine whether a question exists concerning the aircrew member's flying

qualifications and future rated potential. Although this step may not seem necessary if grounds exist, it is.

Under AFI 11-402, para 4.3, you will note that the words "Cause" and "may" are used within the definitions of grounds for convening an FEB under paragraphs: 4.3.2; 4.3.4; 4.3.5; 4.3.6. In other words, the existence of one of the "for cause"

grounds does not automatically require the convening of an FEB, unless the flying unit commander determines, in the

commander's discretion, that the existence of that ground raises a question about the aircrew member's flying qualifica-

tions and future rated potential.

In the vast majority of cases, if grounds exist, the FEB will be convened because there will be a question raised about the

aircrew member's flying qualifications and future rated potential. However, depending on the particular ground and the

factual reasons why it exists, the commander MUST engage in the preliminary evaluation of the facts and circumstances

before exercising the commander's discretion, if applicable. The convening authority should review Air Force policies

stated in AFI 11-402, Para. 1.2.7, and Para. 3.3.1 through 3.3.4.

The pitfall to avoid here is the premature convening of a FEB based on:

1. Insufficient facts; or

2. The commander's failure to make the determination that, given the facts and existence of grounds, a question of flying

qualifications and future rated potential exists.

**CONDUCTING FLYING EVALUATION BOARDS. ( _See_** **AFI 11-402, Attachment 11 – Attachment 23.)**

For detailed information re the composition of the FEB, procedures and guidelines during the FEB, findings and recom-

mendations following the FEB, legal sufficiency review, processing the report, etc., _see_ AFI 11-402.

_**Air National Guard Commander's Legal Deskbook**_

454

_**Chapter 13, Flying and Operations**_

_**Section 13-6 Flying Evaluation Boards**_

_**Page 4**_

**CONCLUSION**

FEBs may also be convened as a result of an Aircraft or Missile Accident Investigation as well as after specific instances

have occurred involving a rated officer and/or aircrew member. AFI 11-402 sets forth the specific guidance you need to

conduct an FEB. The tips and related topics listed herein may aid commanders and future FEB members.

_**KWIK-NOTE: The most crucial aspect of the FEB process is the initial determination whether to convene an FEB.**_

**RELATED TOPICS:**

**SECTION**

Aircraft Accidents and Safety Investigations Off-Base

16-2

Aircraft and Missile Accident Investigations and Reports

16-3

Boards – Investigative

16-4

Boards and Courts-Martial - A View from the Inside

1-7

Command Influence

2-2

Evidence - Differing Standards and Burdens of Proof

8-4

Judicial Review of Military Administrative Actions

18-5

Legal Reviews

17-11

Witness Preparation

17-19

Witness Obtaining

17-18

_**Air National Guard Commander's Legal Deskbook**_

455

**Chapter 14, Information Control**

**Table of Contents**

**Section**

14 - 1 Table of Contents

14 - 2 Classified Material

14 - 3 "For Official Use Only"

14 - 4 Access to Military Records

14 - 5 Confidentiality and Privileged Communications

14 - 6 Subpoenas and Consensual Release of Records

14 - 7 Releasing Information in Litigation

14 - 8 Media Relations and the Public Affairs Office

14 - 9 COMSEC Telephone Monitoring

14 - 10 Unauthorized Recordings

14 - 11 Freedom of Information Act

14 - 12 Privacy Act

14 - 13 Freedom of Expression

14 - 14 Copyright

14 - 15 Unauthorized Copying and Unauthorized Use of Software

14 - 16 Improper Use of Government Computer Systems and Monitoring

14 - 17 Trademarks

_**Air National Guard Commander's Legal Deskbook**_

456

_**Chapter 14, Information Control**_

_**Section 14-2 Classified Material**_

_**Page 1**_

**Classified Material**

**Updated by SSgt Brian Carney, December 2014**

**AUTHORITY** : AFI 31-501, _Personnel Security Program Management_ (27 Jan 05); AFI 31-401; _Information Security Program_ _Management_ (1 Nov 05); DoD Directive 5200.1, _DoD Information Security Program_ (24 Feb 12); 32 CFR 2003.20, _Classified_ _Information Nondisclosure Agreement_ (SF 312) _Briefing Pamphlet._

**PROPER CLASSIFICATIONS**

Commanders are ultimately responsible to ensure that all information under their control is properly classified, that only

authorized individuals have access to it, and that all available steps are taken to prevent the unauthorized disclosure of

classified information.

Classified information is information that requires protection against unauthorized disclosure in the interest of national

security and is classified under one of three designations: TOP SECRET, SECRET, or CONFIDENTIAL, depending on the

level of sensitivity of the information. These are the only designations authorized to identify classified information. TOP

SECRET is applied only to information the unauthorized disclosure of which reasonably could be expected to cause "ex-

ceptionally grave damage" to the national security. SECRET is applied only to information the unauthorized disclosure of

which reasonably could be expected to cause "serious damage to the national security." CONFIDENTIAL is applied only

to information that would cause "damage" to the national security if disclosed.

The Classified Information Disclosure Agreement is used for individuals handling classified material. _See_ 32 CFR

2003.20. Consult your staff judge advocate with any questions.

**RESPONSIBILITIES OF CUSTODIAN**

A custodian of classified information has a personal, moral, and legal responsibility at all times to protect classified information, whether oral or written, within that person's knowledge, possession or control. Further, the custodian must fol-

low procedures to ensure that unauthorized persons do not gain access to classified information. For example, classified

information must not be discussed on the telephone, read, or discussed in public. Classified documents removed from

storage must be kept under constant surveillance and face down or covered when not in use. Preliminary drafts, carbons,

notes, floppy and hard disks and other items containing classified information must be either destroyed immediately af-

ter they have served their purpose; or be given the same classification and secure handling as the classified information

they contain.

Classified information may be processed by automated information systems, but only by those systems approved for

such use. Routine reproduction of classified material should be avoided whenever possible. When reproduction is neces-

sary, reproduced material is subject to the same controls as the original document. TOP SECRET and SECRET informa-

tion may only be reproduced upon approval of higher authority.

**ACCESS TO INFORMATION**

Commanders may only grant access to classified information when a mission essential need exists, and only when all of

the following prerequisites are met: (1) individual has the appropriate security clearance eligibility; (2) individual has a signed SF 312 (see AFI 31-401); and (3) individual has a need-to-know. Therefore, possession of a security clearance

alone does not give a person the right of access to classified information. In addition to the appropriate security clearance and signed SF 312, there must also be a need-to-know. The phrase "need-to-know" is defined as a determination that a

prospective recipient requires access to specific classified information to perform or assist in a lawful and authorized governmental function. Commanders must caution all personnel that the rank, position of, or possession of a badge by a per-

son without a need-to-know does not give that person the right of access to classified information. Commanders should

_**Air National Guard Commander's Legal Deskbook**_

457

_**Chapter 14, Information Control**_

_**Section 14-2 Classified Material**_

_**Page 2**_

strictly limit distribution of materials containing classified information and should avoid routine dissemination of classi-

fied material. The RULE regarding distribution of classified material is: WHEN IN DOUBT, DO NOT ROUTE.

Should any problem arise in this area, notify your staff judge advocate.

_**KWIK-NOTE: Access to classified information is on a need-to-know basis regardless of possession of a security clearance.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Computer Acquisition and Security

25-6

COMSEC Telephone Monitoring

14-9

Congressional and Legislative Inquiries

16-6

"For Official Use Only"

14-3

Freedom of Expression

14-13

Unauthorized Copying and Unauthorized Use of Software

14-15

Personnel Security Access Program

1-28

Privacy Act

14-12

Releasing Information in Litigation

14-7

Revocation of Security Clearance

24-13

Surveillance

16-12

Unauthorized Tape Recordings

14-10

_**Air National Guard Commander's Legal Deskbook**_

458

_**Chapter 14, Information Control**_

_**Section 14-3 "FOR OFFICIAL USE ONLY"**_

_**Page 1**_

**"FOR OFFICIAL USE ONLY"**

**Updated by SSgt Brian Carney, October 2015**

**AUTHORITY** : 5 U.S.C. Section 552, F _reedom of Information Act_ ; 5 U.S.C. Section 552a, _The Privacy Act of 1974_ ; 5 U.S.C.

Section 551, _Administrative Procedures Act_ ; 32 CFR Section 518; 32 CFR Section 286; 32 CFR Section 806; DoD Directive 5400.7-R, _DoD Freedom of Information Act Program_ (21 Oct 10); Air Force Supp. to DoDD 5400.7-R (21 Oct 10, Incorporating Change 1, 24 Apr 2012); AFI 33-332, _Air Force Privacy and Civil Liberties Program_ (12 Jan 2015); AFI 33-129, _Transmission of Information Via the Internet_ (3 Feb 09); AFI 90-401, _Air Force Relations with Congress_ (14 Jun 12). For additional references and affected statutes, _see_ references to DoD Directive 5400.7. 

## INTRODUCTION

"For Official Use Only (FOUO)" is a designation applied by the DoD to unclassified information when disclosure to the

public of that particular record would reasonably be expected to cause a foreseeable harm to an interest protected by one

or more of Exemptions 2 through 9 of the Freedom of Information Act (FOIA). The Freedom of Information and Privacy

Acts (PA) provide guidance on the public releasability of information contained in government documents. FOIA con-

tains a list of nine types of documents exempt from release to the public. Two of the nine categories are easily identifi-

able, exempted because of their security classification and from release by statute. The remaining exemptions describe

the characteristics of exempt documents. Documents that meet these criteria should be marked as "FOR OFFICIAL USE

ONLY" by the originator. FOUO is not authorized as a form of classification to protect national security interests.

**WHEN AND HOW TO MARK "FOR OFFICIAL USE ONLY"**

Documents should be marked "FOR OFFICIAL USE ONLY" when created and before or when they are placed into a re-

cords system. Marking records when they are created gives notice that the contents should be protected and facilitates

review when a record is requested under the FOIA. An unclassified document containing FOUO information should be

marked with the words "FOR OFFICIAL USE ONLY" on the bottom outside on the front cover (if any) and on each page

containing FOUO information. If the FOUO information in the document is contained in severable sections, paragraphs

or pages, then annotate each as FOUO. Documents transmitted outside the Department of Defense and contain FOUO

material should be marked or stamped in the following manner to explain the significance of the FOUO marking:

"This document contains information EXEMPT FROM MANDATORY DISCLOSURE under the Freedom of Information

Act. Exemption(s) _____apply/applies to its contents."

Record owners may also add:

"Further distribution of this document or disclosure of its contents is prohibited without the approval of (include

owner/generator's organization, office symbol and phone number)."

**WHAT TO MARK FOUO**

Documents which contain the following should be marked as "FOR OFFICIAL USE ONLY":

**Exemption 2** : Information related solely to the internal personnel rules and practices of the Department of Defense or any of its Components that, if released, would allow circumvention of an agency rule, policy, or statute, thereby imped-ing the agency in the conduct of its mission;

**Exemption 3** : Information or documents that a statute specifically exempts from disclosure, by terms that permit no discretion on the issue of withholding, or, according to defined standards, for withholding or referring to particular types of matters to be withheld;

_**Air National Guard Commander's Legal Deskbook**_

459

_**Chapter 14, Information Control**_

_**Section 14-3 "FOR OFFICIAL USE ONLY"**_

_**Page 2**_

**Exemption 4** : Trade secrets, commercial, financial and other information submitted by a person or entity outside the federal government, with the understanding that it will be kept on a privileged or confidential basis that, if released, is likely to cause substantial competitive harm to the company, impair the Government's future ability to obtain necessary information, or impair the government's interest in compliance with program effectiveness;

**Exemption 5** : Inter-agency or intra-agency memoranda or letters containing information considered privileged in civil

litigation and are not routinely released to a party in litigation with the Air Force or DoD. The most common privilege is

the deliberative-process privilege, which concerns documents that are part of the decision-making process and contain

subjective evaluations, opinions, and recommendations. Other common privileges are the attorney-client and attorney

work-product privileges.

**Exemption 6** : Those records containing personnel, financial and medical files, as well as similar personal information in other files that, if disclosed to a member of the public, would result in a clearly unwarranted invasion of personal privacy; **Exemption 7** : Those investigative records compiled for enforcing civil, criminal, or military law, including carrying out executive orders or regulations issued according to the law; those in or related to examination, operation, or condition

reports prepared by, on the behalf of, or for the use of an agency responsible for regulating or supervising financial institutions;

**Exemption 8** : Certain records of agencies responsible for supervision of financial institutions.

**Exemption 9:** Geological and geophysical information and data, including maps concerning wells.

**PROTECTING FOUO DOCUMENTS**

Commanders must ensure proper safeguarding of FOUO documents. During normal duty hours, records determined to

be FOUO must be placed in an out-of-sight location, if the work area is open to non-government people. At the close of

business, FOUO records must be stored to prevent unauthorized access. Such material may be filed with other unclassi-

fied records in unlocked files or desks, etc., when normal U.S. Government or government-contractor internal building

security is provided during non-duty hours. When such internal security control is not used, locked buildings or rooms

usually provide adequate after-hours protection. If such protection is not considered sufficient, FOUO material must be

stored in locked containers, such as file cabinets, desks, or bookcases.

**PROCEDURES FOR RELEASE, DISSEMINATION AND TRANSMISSION OF FOUO INFORMATION**

1. FOUO information may be sent within DoD components and between officials of DoD components and DoD contrac-

tors, consultants, and grantees to conduct official business for DoD. Recipients must be made aware of the status of such

information, and the material must be sent in a way that prevents unauthorized public disclosure. Documents that trans-

mit FOUO material must call attention to any FOUO attachments. Normally, you may send FOUO records over facsimile

equipment; however, any transmission must include an explanation of Official Use ( _see_ "When and How to Mark"

above). To prevent unauthorized disclosure, consider attaching special cover sheets ( _i.e.,_ AF Form 3227, Privacy Act Cover Sheet, for PA information).

2. Unless specifically prohibited, holders of FOUO information are authorized to share this information with other Fed-

eral Departments and Agencies of the executive and judicial branches to fulfill a government function. Such records must

be marked "For Official Use Only", and the recipient must be told that the information is considered exempt from public disclosure, according to the FOIA, and what special handling is required (if any). If the records are subject to the Privacy Act, refer to AFI 33-332 for PA disclosure policies.

3. The release of FOUO information to members of Congress is governed by AFI 90-401, _Air Force Relations with Congress_.

As related above, Air Force officials may generally not disclose to the public FOUO information that falls within FOIA

_**Air National Guard Commander's Legal Deskbook**_

460

_**Chapter 14, Information Control**_

_**Section 14-3 "FOR OFFICIAL USE ONLY"**_

_**Page 3**_

Exemptions 2 through 9. However, the Air Force may release such information to chairpersons or ranking members of

Congressional committees or subcommittees if the information relates to matters within their jurisdiction. An Air Force

official who decides the information should not be released to the Congressional committee must staff the Congressional

request for information with a recommendation to the Secretary of the Air Force through SAF/LL or SAF/FMBL as appro-

priate. Requests from Members of Congress not seeking records on behalf of a Congressional Committee, Subcommit-

tee, either House sitting as a whole, or made on behalf of their constituents, shall be considered the same as any other

requester. If the information does not warrant FOUO status, prior FOUO markings must be removed or effaced.

_**KWIK-NOTE: It is best to determine if or how much of a document should be marked as FOR OFFICIAL USE ONLY when**_

_**the document is created. Marking the document when it is written prevents inadvertent disclosure and may obviate the need**_

_**for a subsequent analysis in response to a request for the document.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

National Security Cases

1-21

OSI and SF Reports

8-14

Release of Reports of Investigation in Discrimination Complaints to Management Officials

9-7

Classified Material

14-2

Access to Military Records

14-4

Confidentiality and Privileged Communications

14-5

Subpoenas and Consensual Release of Records

14-6

Freedom of Information Act

14-11

Privacy Act

14-12

Computer Acquisition and Security

25-6

_**Air National Guard Commander's Legal Deskbook**_

461

_**Chapter 14, Information Control**_

_**Section 14-4 Access to Military Records**_

_**Page 1**_

**Access to Military Records**

**Updated by Lieutenant Colonel Francine Swan, March 2007**

**AUTHORITY** : 5 U.S.C. 552a (Privacy Act); 5 U.S.C. 552 (Freedom of Information Act); DOD 5400.7- R/Air Force Sup-

plement, _DOD Freedom of Information Act Program_ (24 Jun 02); AFI 33-332, _Air Force Privacy Act Program_ (29 Jan 04); AFI 35-101, _Public Affairs Policy and Procedures_ (29 Nov 2005); OSD Memoranda 17746-05, _Withholding Information that Personally_ _Identifies DOD Personnel_ (1 Sep 2005). 

## INTRODUCTION

There is no central repository for all military records; medical records and personnel records are stored with different

agencies at different locations based on both the type of record and the affiliation of the military member (active versus

reserve component for example). Individual military members and retirees are entitled to the information contained in

their own personnel and medical records. This section will discuss access to three military personnel records requestors.

1. Requests for records of members who are currently not in military service;

2. Current military (Air Force or ANG) members who want their own records; and

3. Requests by third parties for records of current military members.

**RECORDS OF MEMBERS NOT CURRENTLY IN SERVICE - REQUEST BY MEMBER OR THIRD PARTY**

Personnel, medical and some organizational records of Air Force members retired, discharged or who died on active duty

are generally available six months after retirement, discharge or death on duty. A veteran can normally obtain any unclas-

sified information from their own records without charge. Next of kin can obtain records if a veteran is deceased, and

should provide their relationship to the member. Court-appointed conservators or guardians can also obtain records for

an incompetent veteran.

To obtain records from 1900 to 30 September 2004, the requester should complete and sign a Standard Form 180, titled

"Request Pertaining to Military Records. The form can be obtained, from a local Social Security office, Veterans Admin-

istration Office, VFW Post, or electronically from the National Archives, National Personnel Center website. Records

may also be obtained by writing a letter requesting the specific information sought and including the veteran's full name,

service or social security number, date of birth, branch of service, period of service and a description of the kind of re-

cords or information requested. Requests are submitted to:

National Personnel Records Center, Military Personnel Records, 9700 Page Boulevard, St. Louis, Missouri 63132. Mail

the request by certified mail, return receipt requested and keep a photocopy. Records can also be requested electronically

from the National Personnel Center website (http://www.archives.gov/st-louis/military-personnel/) by a veteran requesting their own records or by next of kin of a veteran. Electronic requestors must also mail or fax an electronic a signature

verification form to the Personnel center within 20 days of the electronic request or the electronic request will be de-

leted. The SF 180 and other instructions for requesting personnel records is located on the Records center website

(http://www.archives.gov/st-louis/)

Mobilization Augmentees, non-participating guard members and reservists or retired or discharged members awaiting

pay at age 60, should send requests to:

HQ ARPC/DPSD1,

6760 E. Irvington Pl #4000

Denver CO 80280-4000 or call 800.525.0102.

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_**Section 14-4 Access to Military Records**_

_**Page 2**_

Written requests should include:

Full name

social security number

contact information

specific record requested

Those requesting a relative's record also need to provide their relationship to the former airman. For more information

consult the ARPC website (http://www.archives.gov/st-louis/military-personnel/)

Other people and organizations can also obtain information from military records subject to the restrictions of the Pri-

vacy Act and the Freedom of Information Act. The requester should submit a Freedom of Information Act request and

could be required to pay certain fees in order to obtain information. Generally, however, certain information such as medi-

cal records, home addresses, and social security numbers, are not releasable to third parties. If a third party is requesting records the request should be made through the FOIA office of the appropriate service.

For requests of military records before 1900, write to:

National Archives and Records Administration, Military Archives Division (NNMS), 700 Pennsylvania Avenue NW,

Washington, DC 20408, Phone 1.800.234.8861.

**RECORDS OF MEMBERS CURRENTLY IN SERVICE - REQUEST BY MEMBER**

Current military members of the National Guard and Reserve may obtain copies of their own records from their local

servicing military personnel office or by accessing and printing the documents through the Air Force virtual Military Per-

sonnel Flight (http://ask.afpc.randolph.af.mil/). Military Personnel records for Active duty Air Force members can be obtained through their local military personnel flight via the automated records management system.

**RECORDS OF MEMBERS CURRENTLY IN SERVICE - REQUEST BY THIRD PARTIES**

Third parties who request records of current military members may either do so through use of a court-ordered and

signed subpoena or by obtaining written consent from members to release their records to the third party or by a Free-

dom of Information Act (FOIA) request. The rules and procedures applicable are fully discussed in the topics in this

Deskbook entitled SUBPOENAS AND CONSENT, RELEASE OF RECORDS and FREEDOM OF INFORMATION ACT,

respectively.

Requests for purely state records are governed by state law.

SEE:

https://arpc.afrc.af.mil/vPC-GR/

Frequently Requested Records That Are NOT at the National Personnel Records Center - Military Personnel Records

• Department of Veterans Affairs (VA) records. For further information call the VA Toll Free number 1.800.827.1000.

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_**Chapter 14, Information Control**_

_**Section 14-5 Confidentiality and Privileged Communications**_

_**Page 1**_

**Confidentiality and Privileged Communications**

**Updated by Lieutenant Colonel Francine Swan, September 2007**

**AUTHORITY** : Applicable state law; Military Rules of Evidence (MRE); DOD 6025.18-R DOD _Health Information_

_Privacy Regulation_ (24 Jan 03) AFI 41-120, _Medical Resource Management Operations_ (22 Mar 06). 

## INTRODUCTION

The subject of confidential and privileged communications in the Air National Guard is largely governed by the law of

the state in which the communication takes place.

The people and their relationships whose communications have traditionally been confidential or privileged are:

1. Lawyer-Client;

2. Communications to Clergy;

3. Husband-Wife; and

4. Physician-Patient (limited and only in the context of Courts-Martial).

**EFFECT OF PRIVILEGE**

In most cases, if the communication between these people is deemed confidential or privileged that means that the Attor-

ney, Clergy and Physician are precluded from disclosing for any purpose or reason what was said to them by the Client,

Penitent and Patient respectively. The privilege is personal to the Client, Penitent and Patient, who may disclose the com-

munication and/or waive the privilege.

**CONFIDENTIAL RELATIONSHIPS**

By way of guidance and comparison to your state's laws, here are some things the MREs provide regarding the privilege

and confidential communications between the above stated pairs of individuals:

_**Physician - Patient (MRE 501)**_

There is no privilege for communications between military physicians and military members except for a member under

court-martial charges who has been evaluated by a sanity board ( _See_ RCM 302). The Privacy Act, 5 U.S.C. 552a contains an exception in section (b)(1), which provides for the disclosure to "those officers and employees of the agency which

maintains the record who have a need for the record in the performance of their duties." HIPPA allows for a specific mili-

tary exception governed by DOD 6025.18-R paragraph C7.11 to "assure the proper execution of the military mission."

Protected health information of an individual who is a member of the Armed Forces may be used or disclosed to deter-

mine the member's fitness for duty, including compliance with standards, to determine fitness for a particular mission

and "to carry out any other activity necessary to the execution of the mission."

_**Lawyer - Client (MRE 502)**_

1. A client has a privilege to refuse or to disclose and to prevent any other person from disclosing confidential communi-

cations made for the purpose of facilitating the rendition of professional legal service to the client:

a. between the client or the client's representative and the lawyer or the lawyer's representative,

_****_

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_**Section 14-5 Confidentiality and Privileged Communications**_

_**Page 2**_

b. between the lawyer and the lawyer's representative,

c. by the client or the client's lawyer to a lawyer representing another in a matter of common interest,

d. between representatives of the client or between the client and a representative of the client, or

e. between lawyers representing the client.

2. There is no privilege where the communication:

a. Clearly contemplates the commission of a future fraud or crime;

b. Is relevant to a breach of duty by the attorney;

c. Is relevant to the attorney's being an attesting witness to a document;

d. Is relevant to joint clients of the attorney; or

e. Is relevant to an issue between parties who claim rights or benefits through the same deceased client.

_**Communications to Clergy (MRE 503)**_

A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the

person to a clergyman or to a clergyman's assistant, if such communication is made either as a formal act of religion or

as a matter of conscience.

_**Husband - Wife (MRE 504)**_

1. A person has a privilege to refuse to testify against his or her spouse provided the parties are not divorced or the mar-

riage has not been annulled.

2. A person has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from

disclosing any confidential communication made to the spouse of the person while they were husband and wife and not

separated as provided by law.

3. These privileges do not apply when:

a. One spouse is charged with committing a crime against the other spouse;

b. The marriage is a sham to prevent testimony; or

c. There are other specific matters dealing with criminal cases.

_**Medical records**_

1. Military medical records are the property of the Air Force (ANG) and patients have only a proprietary interest in the

information in them (AFI 41-120).

2. Patients are entitled to a copy of their medical records, but information from health records may not be released to a

third party under the Freedom of Information Act if such disclosure would result in a clearly unwarranted invasion of pri-

vacy.

_**KWIK-NOTE: In any privileged or confidential communication situation, Commanders should consult with their Staff Judge**_

_**Advocate.**_

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_**Chapter 14, Information Control**_

_**Section 14-6 Subpoenas and Consensual Release of Records**_

_**Page 1**_

**Subpoenas and Consensual Release of Records**

**Updated by Lieutenant Colonel Francine Swan, March 2007**

**AUTHORITY** : Privacy Act, 5 USC 552a; AFI 33-332, _Privacy Act Program_ (29 June 2004); AFI 51-301, _Civil Litigation_ (20

June 2002); ANGR 110-24, _Litigation_ (31 Aug 1991). 

## INTRODUCTION

This topic concerns military records kept or maintained by the service where release is sought either through consent of

the military member whose records are involved or pursuant to a subpoena.

_NOTE: Any outside request for records should be forwarded to the FOIA office and to the servicing legal office to ensure that the request_ _complies with the applicable guidance and applicable federal or state law and regulations._

**CONSENT RELEASE OF RECORDS**

Unless classified requests for medical, personnel or pay records either by the individual those records pertain to or at

that person's request. Military regulations allow individuals to review and receive copies of their own records unless an

exemption for the system they are stored in has been published in the federal register or the records were created in an-

ticipation of a civil action or proceeding (Title 5 United States Code Section 552a(d)(5)). Under the Privacy Act, a former

or current military member may also consent to having certain of the member's records, released to third persons. The

general rule is if the records are releasable to the military member, then the member may consent to having them re-

leased to a third person.

The unit is usually confronted with this situation when the member or the member's private attorney sends the unit a

written request for the records. Often the letter is signed by the member or has attached to it an authorization by the

member allowing the unit to release the records to the member or to a specified third person. NEVER RELEASE RE-

CORDS OF A MEMBER TO ANYONE, INCLUDING THE MEMBER, UNLESS THE UNIT RECORDS CUSTODIAN

SEES THE MEMBER SIGN A CONSENT RELEASE FORM OR AUTHORIZATION, THE UNIT RECEIVES SUCH A

FORM OR AUTHORIZATION ON WHICH THE MEMBER'S SIGNATURE IS NOTARIZED OR THE UNIT CONTACTS

THE MEMBER AND CONFIRMS THE REQUEST/RELEASE AUTHORIZATION.

Absent the proper written consent of the member whose records are sought, the only way the unit may properly release

those records is pursuant to a properly issued document called a SUBPOENA.

**SUBPOENAS**

Frequently, units will receive subpoenas calling for records of a current or former unit member, which records are subject

to the Privacy Act and are to be brought to court or made available to an attorney for inspection and copying on a certain

date. This usually happens in the context of an ongoing civilian civil or criminal action or proceeding in state or federal

court. Examples where subpoenas are received include divorce cases and automobile accident cases.

Any nonconsensual request for release of records of a current or former military member of a unit, which records are sub-

ject to the Privacy Act, is governed by the Privacy Act, 5 U.S.C. 552a. Pursuant to 5 U.S.C. 552a(b)(11), the military is

permitted to release such records only upon an order of a court of competent jurisdiction A "subpoena" is a judicial com-

mand requiring a person to appear and testify on a certain date or to produce and permit inspection and copying of docu-

ments or evidence in that person's custody or control on a certain date. A lawyer for one of the parties to the lawsuit or

criminal case, acting as an officer of the court, can issue a subpoena A " _subpoena duces tecum_ " is a command requiring a person to come to court "and bring documents" to testify on that certain date. A lawyer for one of the parties to the lawsuit or criminal case, acting as an officer of the court, can issue a _subpoena duces tecum_. A judicial _subpoena duces tecum_ is a

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_**Section 14-6 Subpoenas and Consensual Release of Records**_

_**Page 2**_

_subpoena duces tecum_ signed by a judge. If a Judge's signature does not appear on a subpoena, records should not be released in response to the subpoena. A lawyer's or court clerk's signature alone on the subpoena document is not suffi-

cient to permit disclosure, even if the lawyer is a district attorney, Attorney General or U.S. Attorney. A subpoena issued

by a Grand Jury is also not sufficient. A Judge's signature is required. THE STAFF JUDGE ADVOCATE SHOULD AL-

WAYS BE CONSULTED BEFORE RELEASING ANY INFORMATION IN RESPONSE TO A SUBPOENA.

When an ANG unit is given a proper subpoena, it must be complied with. In such case, you do NOT need the member's

consent to release the records since one of the exceptions to the Privacy Act is an order issued by a court of competent

jurisdiction. However, upon releasing the information, you must make reasonable efforts to notify the individual whose

records are the object of the subpoena, by mailing or delivering a disclosure statement to the member's last known ad-

dress advising the member that specified records of the member have been subpoenaed. Attach a copy of the subpoena to

the disclosure statement. If the member is on base, have the member sign an acknowledgment of receipt of the disclo-

sure statement and copy of the subpoena.

**STEPS TO FOLLOW UPON RECEIPT OF SUBPOENA**

It is imperative you follow the steps below upon receipt of a subpoena, to avoid violations -- unintentional or otherwise

\-- of the Privacy Act by improperly releasing records. Also, following this guidance will best ensure your protection from

liability for any later claimed Privacy Act violation by the member who is the subject of the records, or any claimed viola-

tion of the subpoena. Above all, do not release any documents without your Staff Judge Advocate's advice.

1. The first person at the unit receiving the subpoena should promptly:

a. Note the date, time and manner in which it was received (mail, personal delivery from a process server, etc.). If a proc-

ess server personally delivered the subpoena, obtain the process server's name and address;

b. Notify the commander of the receipt of the subpoena;

c. Photocopy the subpoena and retain any other correspondence pertaining to it, as well as the envelope (Federal Ex-

press, Express mail, regular or certified mail, etc.) in which it was received; and

d. Place this information, along with any and/or all associated documents, in the member's military file where the origi-

nal records, which are the subject of the subpoena, are located.

2. _Call your Staff Judge Advocate for further instructions and assistance._ The Staff Judge Advocate will make sure the subpoena itself is proper and has been properly and timely served.

**WHAT TO LOOK FOR**

Make sure the following appear on the subpoena:

1. The return date -- this is the date the records are to be produced;

2. The description of the records sought and the name of the current or former unit military member;

3. The date the subpoena was issued;

4. An order to produce and the signature of the Judge. Sometimes the Judge's name is not typed beneath the signature

and the signature is illegible. In such case, the SJA should call the attorney(s) whose name is on the subpoena and ask

for the Judge's name. The mere absence of the typed Judge's name does not invalidate the subpoena.

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_**Section 14-6 Subpoenas and Consensual Release of Records**_

_**Page 3**_

Other problems like an improper Social Security Number, incorrectly named member whose records are called for, the

unit no longer having the records, etc., should be immediately discussed with the SJA.

If the subpoena is not served in adequate time to permit a proper response, the SJA should notify the attorney(s) who

sought the subpoena that a new subpoena may be necessary and should notify the court.

**PREPARING RECORDS FOR MAILING OR DELIVERY**

Assuming a proper judicial subpoena or subpoena duces tecum calling for records of a military member is received and

has been timely served, in preparing to mail or deliver the records, the following should be done:

1. Produce only the original records that the unit has custody and control over and that are covered by the subpoena, and

ONLY those records in the unit's possession and only those specifically listed or described in the by the subpoena. A sub-

poena for records in the custody of another agency should be returned with contact and identifying information of the

custodial agency. For example: if pay records are requested the request should be directed to DFAS; if the request is for

personnel records then only personnel records should be produced

2. Photocopy the original records. The unit must keep the original record.

3. Prepare a Certificate on the unit's ANG letterhead, on a separate page, as follows:

"I certify that I am the authorized custodian of the attached records which are true and accurate copies

of the original and official records required to be maintained on (this individual) by the Air National

Guard and the State of (your state), and the statutes and regulations governing the preparation and

maintenance of these records.

(Signature) (Name of Custodian, Rank & Unit) (Unit Record Custodian or similar title)

Sworn to before me this _________ day of ________________ , 20__

Notary Public"

Ordinarily, a certified copy of the official records is sufficient. If the records are to be used in federal litigation they should be certified according to the process in chapter 8 of AFI 33-332, which requires coordination and processing

through HQ Air Force. If the authenticity of the record is in dispute, however, a court may order production of the origi-

nal records. If this occurs, consult your Staff Judge Advocate.

_**KWIK-NOTE: Records subject to the Privacy Act may not be released without an order signed by a court of competent juris-**_

_**diction.**_

**RELATED TOPICS:**

****

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**SECTION**

Classified Material

14-2

Access to Military Records

14-4

"For Official Use Only"

14-3

Releasing Information in Litigation

14-7

Freedom of Information Act

14-11

Privacy Act

14-12

Congressional and Legislative Inquiries

16-6

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-7 Releasing Information in Litigation**_

_**Page 1**_

**Releasing Information in Litigation**

**Updated by Lieutenant Colonel Francine Swan, September 2007**

**AUTHORITY** : ANGR 110-24, _Litigation_ (31 Aug 1991), AFI 51-301 _Civil Litigation_ (20 June 2002), DoD Directive 5405.2

_Release of Official Information in Litigation and Testimony by Department of Defense Personnel as Witnesses_ (23 Jul 85; certified current 21 Nov 2003).

**POLICY**

It is Air Force and Air National Guard policy that official information should generally be made reasonably available for

use in federal and state courts and by other governmental bodies unless the information is classified, or otherwise privi-

leged or protected from public disclosure. Generally, when the Air Force or National Guard are not potential litigants the

Staff Judge Advocate is responsible for determining whether official information may be released in litigation. When

there is a possibility that the Air Force, National Guard or state could are or could be parties to a lawsuit the SJA should coordinate with NGB/JA, Air Force Civil Law (AFLSA/JAC) and/or the state Attorney General prior to the release of any

information or records. AFI 51-301 contains specific reporting requirements where the Air National Guard and Air Force

are potential parties to litigation.

**RESTRICTIONS ON RELEASE**

Official Air Force or Air National Guard documents used in civil litigation are authenticated by certificate, rather than by the personal appearance and testimony of the custodian, where practicable. _See_ the topic in this _Deskbook_ entitled _"SUBPOENAS AND CONSENT RELEASE OF RECORDS"_ and for applicable and alternative procedures. Staff Judge Advocates

should request that court protect information that is "For Official Use Only" from public release. Refer documents for

authentication to the Staff Judge Advocate who will work with the records custodian to ensure the records are properly

certified. Unclassified official information that is not privileged should be released to the Department of Justice, U.S. Attorney or State Attorney General on request since they represent the government's interest in judicial proceedings.

Air National Guard personnel subpoenaed to testify concerning official information MUST receive legal advice from the

Staff Judge Advocate and, in some cases, representation from a U.S. Attorney or State Attorney General.

There are restrictions on Air National Guard personnel regarding expert and opinion testimony concerning official Air

Force, Air National Guard, or DoD information. Air National Guard personnel, in an unofficial capacity, should not pro-

vide expert testimony on official Air Force, Air National Guard or DoD information in private litigation without prior ap-

proval from NGB/JA, AFLSA/JAC, and/or DOD General Counsel. Air National Guard personnel do not provide opinion

or expert testimony concerning official Air National Guard, Air Force, or DoD information, subjects, or activities, except

on behalf of the United States or for a party that DoJ or the State Attorney General represents.

Under unique circumstances and when testimony will not adversely affect the interests of the Air National Guard, the

Air Force or the United States, special authorization for personnel to appear and testify as an expert witness in private

litigation at no expense to the state or United States government. Requests for such special authorization must be coordi-

nated, through the appropriate organization SJA, and NGB/JA with the responsible AFLSA civil litigation division.

AFLSA/JAC is the approval authority for requests for special authorization to provide expert or opinion testimony.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-8 Media Relations and the Public Affairs Office**_

_**Page 1**_

**Media Relations and the Public Affairs Office**

**Updated by First Lieutenant Julie K. Phillips, October 2013**

**AUTHORITY** : 5 U.S.C. § 552, _The Freedom of Information Act_ ; 5 U.S.C. § 522a, _The Privacy Act of 1974_ ; AFPD 35-1, _Public_ _Affairs Management_ (17 Sep 99) and its implementing AFIs; DoD Directive 5400.7, _DoD Freedom of Information Act Program_ (29 Sep 97); DOD 5400.7-R/Air Force Supplement, _DOD Freedom of Information Act Program_ (22 Jul 99); AFI 51-201, _Administration of Military Justice_ (21 December 2007) Incorporating Change 1(3 February 2010); AFI 35-104, _Media Operations_ (22 January 2010); 18 U.S.C. §§ 793(e), 795, 797; AFI 34-1101, _Assistance to Survivors of Persons Killed in Air Force Aviation_ _Mishaps and Other Incidents_ (1 October 2001); AFI 35- 101, _Public Affairs Responsibilities and Management_ (18 August 2010); AFI 51-503, _Aerospace Accident Investigations_ (26 May 2010); AFI 91-204, _Safety Investigations and Reports_ (28 September 2008); and applicable state law or regulation. 

## INTRODUCTION

Despite challenges over the years, the military has remained as one of the most trusted institutions in America. To main-

tain the public's trust and confidence, particularly considering today's age of instantaneous access to news and informa-

tion, requires greater effort and more attention than ever before. The public, rightfully, has a strong interest in its military and the military has a duty to the public to be transparent as possible, and to the extent practicable, to serve as an

honest, straightforward source of information.

As the public relies on the media for the bulk of the information it consumes, and the public as a whole tends to lack

military experience, it is important that the Air Force respond quickly and accurately to media inquiries to maintain the

trust of the public. The Air Force must know and apply the applicable law when there is public interest involved in a mili-

tary incident or event. The Privacy Act (PA), Freedom of Information (FOIA), victim and witness assistance program

(VWAP) laws, Air Force Rules of Professional Conduct, Air Force Standards for Criminal Justice, their implementing di-

rectives, security requirements, classified information laws, and judicial orders all may apply to a military event or inci-

dent about which the media inquiries. It is critical for commanders to always consult with the staff judge advocate (SJA)

before releasing information about an incident with legal overtones.

The Freedom of Information Act ("FOIA") and DoD policy require prompt and accurate disclosure of information to the

public. FOIA directs maximum release of information, subject to the lawful exemptions of the Act. While commanders

may not always be able to be proactive regarding a potentially high-profile issue, commanders should be ready to re-

spond media inquiries when they come. As noted by the United States Joint Chief of Staff Joint Pub 3-61, "to do other-

wise simply places the military in a defensive, catch-up role and fails to achieve one of its own important missions – keep-

ing the public informed." Air Force and Air National Guard information must be presented professionally and must:

1. Be accurate, prompt and factual;

2. Be confined to our field of expertise and the information actually requested;

3. Avoid the hypothetical and speculative, and only address requests with information actually possessed by the Air

Force or the unit;

4. Reflect Air Force and Air National Guard policy, including policy on commenting on criminal proceedings;

5. Be presented simply and honestly;

6. Comply in spirit and letter with the Secretary of Defense's Principles of Public Information (Attachment 1 to this

topic); and

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_**Section 14-8 Media Relations and the Public Affairs Office**_

_**Page 2**_

7. Consider rights of living relatives and associates of deceased Air Force and Air National Guard personnel. (The Privacy

Act and the privacy exemptions of FOIA do not protect the personal privacy of deceased persons.) Records about de-

ceased however, may be withheld under FOIA to protect the privacy of living relatives and associates if the records con-

tain private personal information about the family or other background of persons still living.

**COMMANDER'S RESPONSIBILITIES**

The commander is responsible for releasing information to the public. Even though material is unclassified or has been

cleared through security and policy review channels, it cannot be given to the public unless the commander (or the com-

mander's authorized representative) approves it for that purpose. This approval requirement avoids releases out of con-

text that could mislead the public. It also filters out inaccurate material or information that must be protected for legal or policy reasons. However, major command (or equivalent) commanders may withhold "release authority" from subordinate commanders. In high interest cases, the SJA and public affairs officer (PAO) should consult with their major com-

mand representatives. In criminal justice matters, the convening authority responsible for the criminal proceeding makes

the ultimate decision about releasing any statements about the proceeding.

The commander should, in approving any type of information to the public, consider four things:

1. Assess the likely impact of the decision and weigh the potential consequences as perceived by the public;

2. Memorialize the rationale for the decision;

3. Use the commander's staff advisors, in particular the public affairs office and the staff judge advocate, in crafting any message; and

4. Consider a response plan for any decision of public interest to ensure timely delivery of accurate and forthright Air

Force information.

**AREAS OF CONCERN AND THE PUBLIC AFFAIRS OFFICE**

The PAO or a designated representative must be available 24 hours a day. Arrange to have someone on call during off-

duty hours. Brief security police, operations center, and telephone personnel on procedures for contacting the PAO duty

representative. An instruction book should contain emergency checklists and off-duty telephone numbers of public af-

fairs staff members and key unit installation officials. It should be reviewed regularly to ensure it is current.

_**Unit activations and movements**_

One of the subjects about which the media frequently asks relates to unit activations, deactivations, phase-downs and

movements. A significant change in unit level of operations is important news for local communities. This change takes

place after long deliberation at high levels of government. The first announcement comes from DoD. Public affairs per-

sonnel should not discuss these subjects until they have specific instructions.

_**Military Justice and Extrajudicial Statements**_

Another area of public interest is military justice, especially high profile cases. AFI 51-201, Section 13D, prohibits the

release of information with a substantial likelihood of prejudicing the criminal proceedings. If any proposed statement is

based on information contained in agency records, the office of primary responsibility for the record should be consulted

before release. Commanders should be aware that the rules for release of extrajudicial statements about military justice

matters are complex and vary according to the type of information, the information source, the type of proceeding, and

the stage of proceedings. Extrajudicial statements are any oral or written statements made outside of a criminal proceed-

ing that a reasonable person would expect to be disseminated by means of public communication.

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_**Section 14-8 Media Relations and the Public Affairs Office**_

_**Page 3**_

Prohibited Extrajudicial Statements:

1. The existence or contents of any confession, admission or statement by the accused, or the accused's refusal, or failure

to make a statement;

2. Observations about the accused's guilt or innocence;

3. Opinions about the merits of the case or the merits of the evidence;

4. References to any examinations, tests or investigative procedures (e.g. fingerprints, polygraph examinations and ballis-

tics or laboratory tests), the accused's failure to submit to an examination or test, or the identity or nature of expected

physical evidence;

5. Statements concerning the identity, expected testimony, disciplinary or criminal records, or credibility of prospective

witnesses;

6. The possibility of a guilty plea or disposition of the case other than procedural information concerning such processes;

7. Information government counsel knows or has reason to know would be inadmissible as evidence in a trial; and

8. Before sentencing, facts regarding the accused's disciplinary or criminal record, including nonjudicial punishment,

prior court-martial convictions, and other arrests, indictments, convictions, or charges. Do not release information about

nonjudicial punishment or administrative actions even after sentencing, unless admitted into evidence. However, a state-

ment that the accused has no prior criminal or disciplinary record is permitted.

Permissible Extrajudicial Statements at any time subject to FOIA, PA, and/or VWAP, and likelihood of substantial preju-

dice to the pending criminal case:

1. General information to educate or inform the public concerning military law and the military justice system;

2. If the accused is a fugitive, information necessary to aid in apprehending the accused or to warn the public of possible

dangers;

3. Requests for assistance in obtaining evidence and information necessary to obtain evidence;

4. Facts and circumstances of an accused's apprehension, including time and place;

5. The identities of investigating and apprehending agencies and the length of the investigation, only if release of this information will not impede an ongoing or future investigation and the release is coordinated with the affected agencies;

6. Information contained in a public record, without further comment; and

7. Information that protects the Air Force or the military justice system from the substantial, undue prejudicial effect of

recent publicity initiated by some person or entity other than the Air Force. Such statements shall be limited to that nec-

essary to correct misinformation or to mitigate substantial undue prejudicial information already available to the public.

This can include, but is not limited to, information that would have been available to a spectator at an open Article 32

investigation or an open session of a court-martial. In such a situation, commanders with consultation of their SJA may

request a Privacy Act Release from the accused of to permit further disclosure by the Air Force. If the accused refuses to

sign the Release, the Air Force can demonstrate to the media it made a good faith effort to provide both sides of the

story, however the accused has refused to permit the release of such information.

_**Air National Guard Commander's Legal Deskbook**_

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_**Section 14-8 Media Relations and the Public Affairs Office**_

_**Page 4**_

Permissible Extrajudicial Statements after Preferral of Charges (and subject to the same concerns above):

1. The accused's name, unit and assignment;

2. The substance or text of charges and specifications, along with a mandatory statement explaining that the charges are

merely accusations and that the accused is presumed innocent until and unless proven guilty. Redact all VWAP and PA

protected data from the charges and specifications;

3. The scheduling or result of any stage in the judicial process;

4. Date and place of trial and other proceedings, or anticipated dates, if known;

5. Identity and qualifications of appointed counsel;

6. Identities of convening and reviewing authorities;

7. A statement, without comment, that the accused denies the charges;

8. The identity of the victim where the release of that information is not otherwise prohibited by law. Generally, however,

seek to avoid release of the name of victims of sex offenses, the names of children or the identity of any victim when re-

lease would be contrary to the desire of the victim or harmful to the victim; and

9. The identities of the court members and the military judge; however, this information should not be volunteered in

material prepared for publication, and only after the convening authority's SJA determines release would not prejudice

the accused's rights or violate the members' or the military judge's privacy concerns.

Article 32 Investigations should normally be open to the public, unless the commander directing the investigation or in-

vestigating officer (IO) believes the interests of justice outweigh the public's interest in access, in which case such investigations may be partially or wholly closed to the public. Any such action should be limited and the specific reasons for the

closure. If the hearing is public, the SJA and PAO should work together to develop a coordinated press release that ex-

plains how the military justice system works, and how it compares and contrasts with the civilian system. In addition,

the media should be advised of the prohibition against courtroom photography, television, and audio/visual recording.

The commander should provide access to the press by providing reserved seating for at least one reporter and a sketch

artist and alternate locations for media interviews and broadcasts.

_**Aircraft Accidents and other Large-Scale Military Accidents**_

Commanders should be involved in media relations whenever major accidents occur, which will generate significant me-

dia interest. Within one hour after notification of an accident, the PAO should provide an initial news release with all

available, releasable, commander-approved information to the news media, SAF/PA, and Air Force News Service. The

initial release should include information as indicated in AFI 35-104, _Media Operations_ , para 2.12. Commanders and PAO

representatives should not speculate about the causes of the accident, even if the cause seems obvious. Explain that only

a safety investigation board (SIB) or accident investigation board (AIB) is qualified to determine the causes. Do not lead

the reporter to believe that all SIB findings will be made available, as the purpose of the safety board is to prevent acci-

dents, not to fix blame. The safety board's conclusions are privileged, as are statements given to the board under the

promise of confidentiality, and must be protected. If a copy of the AIB or SIB report is requested, direct him or her to the convening authority of the AIB or SIB. For more information on accident report releases, refer to AFI 51-503, _Aerospace_

_Accident Investigations._

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-8 Media Relations and the Public Affairs Office**_

_**Page 5**_

Accidents on Military Installations:

1. If no classified material is exposed, the commander will permit news media photography;

2. If classified information or materials are exposed and cannot be covered or removed, media or visitors will not be al-

lowed to photograph or videotape in the area;

3. Notify media or visitors of any restrictions on what can be filmed, and restrict them from sensitive sites or activities; 4. Immediately notify security forces of any unauthorized filming of classified information or activities by media personnel or visitors. Security forces will confiscate film and videotape and provide a receipt for any items seized. Do not detain the media or visitors. Review seized film or videotape with security forces to see if classified information is contained on the film or videotape, and then return all portions that do not contain classified information. If classified information is found, or intent to deliberately film or videotape such classified information, notify the local Air Force Office of Special Investigations (AFOSI).

Accidents at Off-Base Locations:

1. Unless the off-base accident site is declared a National Defense Area (NDA), on-scene commanders, PAO, accident

boards, and security forces have limited authority to deal with or manage media activity;

2. If no classified information is exposed, the senior Air Force representative will permit news media photography;

3. If it is unknown whether classified information is exposed, explain that fact to any media photographers at the scene

and advise them that no photography is authorized. Warn them that taking pictures without permission may violate fed-

eral law and subject them to future investigation;

4. If classified information is exposed and cannot be covered or removed:

a. Explain to the media federal law prohibits photography when official permission is expressly withheld and ask

for cooperation;

b. Do not use force if the media refuses to cooperate unless the area has been declared an NDA. If photographs

are taken after a warning is issued, Air Force officials must ask civilian law enforcement authorities to stop further pho-

tography of the exposed classified information and to collect all photographs;

c. If no civilian law enforcement authorities are present and news media representatives take unauthorized pic-

tures, do not seize the videotapes or film or detain the photographers. Immediately contact the managing editor or news

director of the medium employing each photographer, and explain the situation and request the return of videotape or

film having suspected classified information. Explain failure to return the material to military authorities violates federal law, i.e. 18 U.S.C. §§ 793(e), 795, 797.

Releasing Names of Accident Victims:

1. Deceased – Generally, the responsible installation PAO releases the names of people killed in Air Force accidents only

after the next-of-kin have been notified. Wing commanders may release the names before notifying next-of-kin when a

military accident in a civilian community causes significant property damage or loss of life, only to reassure the commu-

nity the Air Force members were well qualified or experienced.

2. Survivors – Generally, release the names of all survivors immediately. Report survivors believed to be in immediate

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-8 Media Relations and the Public Affairs Office**_

_**Page 6**_

danger of dying as survived but in critical condition. If, in the commander's opinion, releasing the survivors' names will

reveal the identity of deceased personnel prior to next-of-kin notification, withhold the names.

3. Missing or Presumed Lost – The PAO at the departure base will release the names of passengers and crew to news me-

dia individually, as the next-of-kin is notified; this should not delay the announcement that the aircraft is missing. If key U.S. or foreign government officials are killed, injured, or missing while on an Air Force installation or in an Air Force

vehicle or aircraft, notify OASD/PA press desk for public announcement by the White House Press Secretary.

_**Environmental Actions**_

A final area of growing responsibility for commanders is timely notice to the public of environmental actions. The three

most likely environmental actions that would affect a commander are an Environmental Assessment, Environmental Im-

pact Statement, or Installation Restoration Program action. Failure to make the public a part of the decision-making proc-

ess could result in court actions in which the commander could be held personally liable or criminally responsible.

Commanders should work closely with their PAOs in every environmental action. An excellent source of information is

the pamphlet which NGB provides titled "National Guard Bureau Public Affairs Guidelines."

**VIDEO PRODUCTIONS AND MEDIA TRAVEL**

The widespread use of videos, the creativity of our PAOs, and their interaction with the civilian community has created a

need to secure appropriate permission to maximize the use of military-made video productions. The implementing AFIs

of AFPD 35-1 contain sample forms for this purpose, including general release forms for intellectual property permis-

sions. The commander should ask the PAO to ensure appropriate releases and legal procedures are followed.

Media travel is authorized aboard DoD-owned aircraft on a reimbursable basis and this travel should not compete with

commercial carriers. _See_ the topic in this _Deskbook_ entitled _"CIVILIAN TRAVEL ABOARD MILITARY AIRCRAFT"_ for a discussion of criteria and requirements for permissible travel of civilian media personnel aboard military aircraft.

The implementing AFIs of AFPD 35-1 contain several checklists for myriad situations confronting a commander. As situa-

tions arise, commanders should consult their PAO, SJA and this instruction.

_**KWIK-NOTE: Good media relations by commanders and public affairs officers will enhance your unit's reputation in the lo-**_

_**cal community, and is invaluable for recruiting and retention.**_

**RELATED TOPICS:**

****

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****

****

****

**SECTION**

Freedom of Information Act

14-11

Privacy Act

14-12

Aid to Civilian Authorities

6-2

Civilian Travel Aboard Military Aircraft

27-3

Community Relations Programs

6-4

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-8 Media Relations and the Public Affairs Office**_

_**Page 7**_

_Attachment 1_

**PRINCIPLES OF INFORMATION**

It is the policy of the Department of Defense to make available timely and accurate information so that the public, Con-

gress, and the news media may assess and understand the facts about national security and defense strategy.

Requests for information from organizations and private citizens will be answered in a timely manner. In carrying out

this policy, the following principles of information will apply:

1. Information will be made fully and readily available, consistent with statutory requirements, unless its release is pre-

cluded by current and valid security classification. The provisions of the Freedom of Information Act will be supported in

both letter and spirit.

2. A free flow of general and military information will be made available, without censorship or propaganda, to the men

and women of the Armed Forces and their dependents.

3. Information will not be classified or otherwise withheld to protect the government from criticism or embarrassment.

4. Information will be withheld only when disclosure would adversely affect national security or threaten the safety or

privacy of the men and women of the Armed Forces.

5. The Department's obligation to provide the public with information on its major programs may require detailed public

affairs planning and coordination with the Department and with other government agencies. The sole purpose of such

activity is to expedite the flow of information to the public: propaganda has no place in Department of Defense public

affairs programs.

The Assistant Secretary of Defense for Public Affairs has the primary responsibility for carrying out this commitment.

_**Air National Guard Commander's Legal Deskbook**_

476

_**Chapter 14, Information Control**_

_**Section 14-9 Communications Monitoring**_

_**Page 1**_

**Communications Monitoring**

**Updated by Lieutenant Colonel Francine Swan, August 2007**

**AUTHORITY** : AFI 33-219, _Telecommunications Monitoring and Assessment Program_ (TAMP) (1 May 06); DoDD 4640.6, _Communications Security Telephone Monitoring and Security_ (26 Jun 81); AFI 33-111, _Voice Systems Management_ (24 Mar 05 through change 1, 11 Jul 2006)

**CONSENT TO MONITORING**

DoD-owned or -leased communications systems (telephone, email, facsimile machines, pagers and VOIP systems) pro-

vided for transmitting official government communications are subject to monitoring for communications security (COM-

SEC) because of potential vulnerability for compromise of sensitive or classified information. Information collected is

analyzed to determine if any sensitive or classified information transmitted on unsecured and unprotected systems could

adversely affect United States (U.S.) (and allied/coalition) operations Use of DoD telephones constitutes consent by the

user to COMSEC monitoring. _See_ DoD Directive 4640.6, para 6. Commanders will determine the need for COMSEC sur-

veillance of their organizations over and above what is required by regulation.

Commanders are responsible for educating personnel about the hostile intelligence threat to unprotected telephone sys-

tems and for making sure that personnel do not discuss sensitive or classified information on unsecured telephones. Fur-

ther, users of DoD telephones, including contractors, will be notified that use of such telephones constitutes consent to

monitoring. The Monitoring Notification Decals (DD Form 2056), which are attached to telephones, cell phone and

other communication devices and the notification page required for access to government computer and inter/intranet

systems, are used to provide notification and obtain consent to monitoring. Commanders should also use initial orienta-

tion, as well as periodic letters, briefings and notices to remind military members of the need to observe communication

security practices.

**USE OF MONITORED INFORMATION**

COMSEC surveillance information will not be used for any law enforcement purpose without the consent of the Air

Force General Counsel. Without this consent, receiving units may only use identifying data for corrective (administra-

tive) or preventive actions or for DoD military or civilian personnel administrative reprimands for unauthorized disclo-

sure of sensitive or classified information. COMSEC monitoring shall be afforded protection at least equal to that pro-

vided material officially classified CONFIDENTIAL. _See_ DoD Directive 4640.6, para 6.4.7. The ESC (Electronics Security Command) will notify the local AFOSI of any monitored information that pertains to sabotage, threats, or plans to commit an offense that could result in loss of life or significant property damage.

Should any problem arise in this area, a commander should notify the Staff Judge Advocate as soon as possible.

_**KWIK-NOTE: All DoD telephones are legitimately monitored.**_

**RELATED TOPICS:**

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**SECTION**

Classified Material

14-2

"For Official Use Only"

14-3

Fraud, Waste and Abuse

16-7

Ethics

7-3

Surveillance

16-12

Unauthorized Tape Recordings

14-10

_**Air National Guard Commander's Legal Deskbook**_

477

_**Chapter 14, Information Control**_

_**Section 14-10 Unauthorized Tape Recordings**_

_**Page 1**_

**Unauthorized Recordings**

**Updated by Lieutenant Colonel Francine Swan, April 2007**

**AUTHORITY** : 18 U.S.C. 2511; AFI 31-206, _Security Police Investigations Program_ (1 Aug 2001); AFI 33-111, _Voice Management Systems_ (24 Mar 05); AFI 51-503, _Aerospace Accident Investigations_ (16 Jul 03); AFI 51-507, _Ground Accident Investigations_ (28 Oct 04) AFI 51-1102, _Cooperation with the Office of Special Counsel_ (3 Oct 94); AFI 84-101, _Historical Products Services &_ _Requirements_ (1 Aug 05); applicable state law. 

## INTRODUCTION

Audio or video recordings of conversations between or among individuals, without consent by all parties to the record-

ings, may constitute a violation of federal or state laws, and may create significant problems for command and the indi-

vidual responsible for such activities. Whenever audio or video recordings of an event or discussion are appropriate, the

permission of all parties must be obtained in advance.

Many state privacy laws or state constitutional provisions prohibit the making of a recording without the consent of the

persons being recorded. Persons or organizations engaging in such activities may be personally liable for civil damages.

Making a covert recording without first obtaining a judicial order during a criminal investigation violates federal law, and in many cases state law, and could result in disciplinary actions for the person doing the recording and a possible award

of civil damages to the person being recorded. Though unauthorized, a surreptitious recording of a meeting may in some

circumstances qualify as an official record under the Freedom of Information Act and Privacy Act and disclosure required.

**NEED FOR COMMAND POLICY**

If your state law allows for unauthorized recording of conversations it is recommended the commander establish and

publish a policy against such recording on the installation and during the course of one's military or technician duties. A

strong command policy prohibiting unauthorized recordings of meetings or conversations will ensure unit compliance

with all applicable laws, and preserve the free flow of information and mutual trust within the unit. Attachment 1 con-

tains a sample policy letter. IF your state law does not provide for such recording ask your base legal office to periodically prepare an article for the monthly newsletter explaining the state law and consequences of its violation. Discussions at

meetings may contain information that is classified, sensitive, or privileged under one or more federal or state laws. Un-

authorized recordings, if not prohibited, may result in the compromise of this classified, sensitive, or privileged informa-

tion, and may result in the release of information, which may cast an unfavorable or inappropriate light on the unit and

its individual members. Once a recording is made, be prepared for its unintended use. Allowing unauthorized recordings

can create an environment of intimidation directly contrary to the continued maintenance of good order, discipline, and

unit cohesiveness. Questions in this highly perilous area should be immediately directed to the SJA.

You may be required to preserve recordings under the Freedom of Information Act; balance the need to safeguard record-

ings with the potential for disclosure when deciding to make an authorized recording of proceedings or conversations.

_**KWIK-NOTE: Make all your personnel aware that unauthorized tape recordings on base are PROHIBITED.**_

**RELATED TOPICS:**

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**SECTION**

Classified Material

14-2

"For Official Use Only"

14-3

Confidentiality and Privileged Communications

14-5

Employee Interrogation

5-3

Freedom of Information Act

14-11

Privacy Act

14-12

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-10 Unauthorized Tape Recordings**_

_**Page 2**_

_Attachment 1_

MEMORANDUM FOR All Personnel

Date

FROM: (Wing or Group/CC)

Subject: Unauthorized Recordings

1. Unauthorized recordings are those in which one or more of the individuals being recorded are _**unaware**_ that a recording is being made. The unauthorized tape recordings of conversations or meetings, wherein one of the speakers or at-

tendees is unaware of the recording, will not take place. In addition [under the law of this state recording of conversa-

tions with/out the consent of both parties is/is not a violation of state law.]

2. The unauthorized recording of conversations or meetings is extremely dangerous and the release of information con-

tained therein could be in violation of various federal laws, including the Privacy Act and National Security Laws.

3. Discussions at meetings may contain information or facts that are for official use only, or they may consist of investigatory material compiled for law enforcement purposes as well as material used in making decisions concerning employ-

ment, military service, federal contracts or other internal agency memoranda.

4. The use of recording devices without the knowledge and consent of others may also create impediments to the free

flow of information and the quick resolution of problems the Air National Guard relies upon in accomplishing its mis-

sion. With these concerns in mind, it is my policy that all personnel be able to work in an atmosphere free of concern

that speech and discussion are being covertly recorded.

_______________________________________

COMMANDER SIGNATURE BLOCK

_**Air National Guard Commander's Legal Deskbook**_

479

_**Chapter 14, Information Control**_

_**Section 14-11 Freedom of Information Act**_

_**Page 1**_

**Freedom of Information Act**

**Updated by Lieutenant Colonel Francine Swan, September 2007**

**AUTHORITY** : 5 U.S.C. 552, _The Freedom of Information Act_ (FOIA); Executive Order 13392 _Improving Agency Disclosure of_ _Information_ (14 December 2005) DoD 5400.7-R, _DoD Freedom of Information Act Handbook_ (Sep 98); DODD 5400.7 _DoD_

_Freedom of Information Act Program_ (28 Sep 05), DoD Regulation 5400.7/Air Force Supplement, _DoD Freedom of Information_ _Act Program_ (24 June 2002) AFI 33-332, _Air Force Privacy Act Program_ (29 Jan 04); applicable state laws and regulations. 

## INTRODUCTION

The Freedom of Information Act (FOIA) is a federal law that permits public access to federal executive agency informa-

tion. The intent of the Act is to "ensure an informed citizenry." The general policy is that the Air Force will allow public disclosure of Air Force records in its possession, except when those records are protected from disclosure by one of the

FOIA exemptions.

The statute is applicable to all federal agencies and records, and the referenced DoD Directive, applicable to all depart-

ments within DoD, should be consulted for specific guidance. Many states also have state "Right to Know" laws that

may apply to requests for state documents, you should become familiar with any right to know in your state and the cor-

responding requirements and processes required for disclosure.

The Act contains stringent timelines for compliance so it is imperative everyone involved makes sure that any request for

documents or specific information gets into the hands of the appropriate person immediately. FOIA requests should al-

ways be hand-carried from one office to the next and should not be put into the base distribution system.

**FOIA PROCEDURE**

The State Adjutant General is the RELEASE authority for a FOIA request while the Chief, National Guard Bureau is the

DENIAL authority for all FOIA Air National Guard federal records requests, including ANG military and technician per-

sonnel records, with the exception of Inspector General records discussed later. Air Force General Counsel (SAF/GCA) is

the appeal authority. The FOIA/Privacy Act Office/Monitor for the state Air National Guard is the central point through

which all requests for information under the FOIA or Privacy Act should be processed. The OPR for FOIA requests is SC

who should be working closely with JA to ensure a legal review is done on all FOIA requests.

A FOIA request can be made by "any person." Broadly defined to include, e.g., foreign citizens and governments, corpora-

tions, and state governments ( U.S.C. Sec. 551(2)). Special rules exist for requests from foreign governments and citi-

zens (or their representatives). Federal agencies and fugitives from justice are excluded. Requesters must comply with

agency regulations.

The request must be in writing, should be addressed to FOIA office (a request sent to another office should still be proc-

essed) and reasonably describe the desired record. If the record is not reasonably described then the requester should be

asked to provide more specific information. (This is not a denial.)

Agency records are defined as: "Products of data compilation . . . regardless of physical form or characteristics, made or

received by (the Air Force) in connection with the transaction of public business and in the agency's possession and con-

trol at the time it receives the request. [NOTE: recent amendments define "record" to include "any information that

would be an agency record subject to the requirements of [FOIA] when maintained by an agency in any format, includ-

ing an electronic format."] The agency has no obligation to create, compile, or obtain (from another Executive agency) a

record to satisfy a FOIA request.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-11 Freedom of Information Act**_

_**Page 2**_

**PROCESSING TIME LIMITS (Statutory)**

Tell requester in writing of decision on release within 20 days of official receipt. Thereafter, release any records

"promptly." (5 U.S.C. 552 (a)(6)(c).) ( _See_ DoD 5400.7-R for explanation of Multitrack Processing to be used when a significant number of pending requests that prevents a response determination being made within 20 working days.)

If the response is that you have "no record," it is considered an adverse decision on the request, and you must give ap-

peal rights to the requester. FOIA managers may sign "no records" responses. Denial letters and "no records" responses

must also include an appeal paragraph that:

1. Tells the requester to address appeals to the Secretary of the Air Force, through the FOIA office of the activity that issued the denial or "no records" response;

2. Tells the requester to appeal within 60 calendar days from the letter date and to include reasons for reconsideration;

and,

3. Asks the requester to attach a copy of the response.

Denial authority (includes partial denial) must tell requester of records denied, FOIA exemptions justifying denial, and

appeal procedures.

Requester has 60 calendar days from date of initial denial to appeal.

Agency has 20 working days to decide appeal.

**FOIA EXEMPTIONS**

Nine FOIA exemptions exist which provide a basis for withholding information. Only seven of those are typically used.

_**Exemption 1: Classified information.**_

This refers to information which has been classified according to regulation and designated confidential, secret, and top

secret information: "For Official Use Only" is not a security classification ( _see_ Section 14-3 of this _Deskbook_ ). When dealing with a request for classified information make sure that the information is currently classified and that the need for

classification still exists by contacting the classifying office, agency or activity to confirm that the currency of the existing classification and the need for continued classification at that level. When dealing with a request for classified information the responder may refuse to confirm or deny the existence of the requested information where its existence or non-

existence is itself classifiable. This is called a "Glomar" denial but must be used consistently to effectively protect classified information. Information may also be withheld under this exemption when the requested information, assembled

together, is classifiable.

There may be information within classified documents that is not classified when segregated and should be considered

for release. Any requests for classified or classifiable information should be coordinated through the appropriate security

specialist.

_**Exemption 2: Internal administrative matters**_

These exemptions are divided into two parts – Low(b)(2) and High(b)(2). DoD components shall not invoke the

Low(b)(2) Exception (DOD 5400.7-R, para C3.2.1.2).

"Low(b)(2)": Internal administrative matters of a relatively trivial nature for which there is no significant public interest and the process of releasing such records would constitute an unwarranted administrative burden. The "Low(b)(2)" exemption has been totally eliminated for DoD components.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-11 Freedom of Information Act**_

_**Page 3**_

Mailing lists: Current policy is to release, on request, lists containing names and _duty addresses_ of all DoD personnel, military and civilian, assigned to units in the U.S. Requests for names/duty addresses for overseas units/sensitive

installations/routinely deployable units should be denied under Exemption 3, 10 U.S.C. 130b.

"High(b)(2)": Internal matters which, if disclosed, would risk circumvention of a statute or regulation. For example: secu-

rity classification guide; test questions and answers used for hiring or promotion; guidelines for DOD investigators or

auditors; computer software which would allow circumvention of a statute, DoD rule, regulations, orders, manuals, direc-

tives, or instructions. Most law enforcement manuals may now be withheld under expanded exemption 7e.

_**Exemption 3: Exempted by another statute**_

The Statute must:

Permit no discretion on the withholding, or

Establish criteria for withholding, or

Refer to particular types of matters to be withheld.

For example: 10 U.S.C. 1102 (medical quality assurance records), 18 U.S.C. 798 (communication intelligence), 10 U.S.C.

618(f) (promotion selection board proceedings), 41 U.S.C. 423 (contractor proprietary information).

_**Exemption 4: Trade secrets or commercial or financial information submitted on privileged or confidential basis**_

This exemption is typically applied to information obtained for procurement or contracting process. To qualify for exemp-

tion, information must be commercial or financial, for example; bids, contracts, statistical data, audits, wage surveys, scientific data, computer software, etc. In general, agencies must obtain views of submitters when their data is requested

under the FOIA. If information is provided voluntarily by the submitter, and of the type not customarily disclosed to the

public, then information is categorically protected from disclosure. Government assurance of confidentiality is only one

factor to be considered and is not determinative. If the information is required to be submitted by the government, then

information may be withheld if release is likely to:

Impair the government's ability to obtain necessary information in the future; or

Cause substantial harm to the competitive position of the submitter.

_**Exemption 5: Inter- or intra-agency documents normally privileged in the civil discovery context**_

The two privileges most commonly invoked are:

1. Deliberative process privilege which encourages frank policy discussions. This exemption, prevents premature disclo-

sure of evolving policies, and prevents public confusion. Information or documents must be pre-decisional, and do not

lose their pre-decisional character just because a decision has been made or a policy decided on.

2. Attorney work-product privilege protects adversary trial process by insulating attorney's preparation from scrutiny.

Also applies to documents prepared at direction of attorney, such as an economist's report, or a witness statement. Both

of these privileges are broadly construed under a "functional test" to include documents generated outside an executive

agency if needed for the agency's functions. Do not withhold information that would routinely be available through the

discovery process unless the information would be made available only by special order of the court. DoD 5400.7-R, para

C3.2.1.5.2.

_**Exemption 6: Information in personnel, medical, and similar files, which, if disclosed to the requester, would result in a**_

_**clearly unwarranted invasion of personal privacy (Exemption 7c, law enforcement, also protects personal privacy.)**_ ****

_**Air National Guard Commander's Legal Deskbook**_

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_**Section 14-11 Freedom of Information Act**_

_**Page 4**_

First, determine if there is a protected privacy interest by referring to the Privacy Act and other agency regulations and

guidance. If there is no protected privacy interest, release the record (unless other exemptions apply). If there is a pro-

tected privacy interest then determine if there is a public interest in disclosure. If there is a protected privacy interest and a public interest in disclosure, balance the privacy interest against the public interest in disclosure. Balancing of interests is fact specific. Note the enhanced privacy interest in certain information by military personnel assigned to units in foreign countries, routinely deployable, or with sensitive missions, e.g., telephone directories of overseas bases. DoD

5400.7-R, para C3.2.1.6.

Examples of exempt information includes SSANs; home addresses; names and duty addresses of personnel in overseas or

in classified, sensitive, or routinely deployable units; evaluations for employment or security clearances; adverse adminis-

trative personnel actions.

_**Exemption 7: Law enforcement information**_

Records or information compiled for law enforcement purposes (including civil and criminal statutes and implementing

regulations and Executive Orders), but only to the extent production:

_**Exemption 7a: Could reasonably be expected to interfere with enforcement proceedings**_

_**Exemption 7b: Would deprive a person of a fair trial**_

_**Exemption 7c: Could reasonably be expected to constitute an unwarranted invasion of personal privacy (Burden lower than**_

_**under Exemption 6, which requires a "clearly" unwarranted invasion of personal privacy to justify withholding.)**_

_**Exemption 7d: Could reasonably be expected to disclose the identity of a confidential source or information supplied by a**_

_**confidential source during a criminal investigation or a national security intelligence investigation**_

_**Exemption 7e: Would disclose techniques and procedures for law enforcement investigations or would disclose guidelines for**_

_**law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the**_

_**law**_

_**Exemption 7f: Could reasonably be expected to endanger the life or physical safety of any individual**_

_Additional exclusions for Law Enforcement Records (5 U.S.C. 552(c)):_ This provision was added to FOIA in the 1986 Amendments to prevent subjects of an investigation from discovering through FOIA that they were being investigated.

The (c)(1) exclusion allows agency to report "no record exists" to requester where the disclosure of an ongoing investiga-

tion may result from a denial under Exemption 7.

The (c)(2) exclusion allows similar report where denial of request under other FOIA exemption might reveal the identifi-

cation of an informant.

The (c)(3) exclusion allows "no record" response for request made to the FBI concerning counter-intelligence or counter-

terrorism activities. Do not cite this provision in the response to the requester (defeats purpose of exclusion).

**HANDLING FOIA REQUESTS**

**Release of Information for Litigation:** Refer to your Judge Advocate matters which involve the release of information

for litigation, whether for or against the government, before releasing such information. Process the requests through

the local and state FOIA/Privacy Act Monitors.

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_**Section 14-11 Freedom of Information Act**_

_**Page 5**_

**Inspector General (IG) Records:** The guidance in All States Letter, Log Number P95-0073, 18 May 1995, is that only

NGB-ADI-P will release/deny Air Force Inspector General records pertaining to ANG personnel when these records:

1. Pertain to IG actions initiated and finalized at NGB level and in the 54 States and Territories; and,

2. Have not required Secretary of the Air Force or SAF/IG level review. SAF/IG will retain denial/release authority for all

IG records initiated and finalized at SAF level; all IG senior inquiries or investigations regardless of level of initiation/

finalization; and any requests for access to IG records for use in courts-martial and non-judicial administrative proceed-

ings. NGB will retain denial/release authority for non-IG records, i.e., commander-directed senior official cases.

**Federal vs. State Records:** All States Letter, Log Number I91-0242, 17 July 1991 defines a "federal" record and a "state"

record for FOIA and Privacy Act requests. While all federal records are subject to the FOIA and Privacy Act, state records

created with state funds are not subject to the federal FOIA or Privacy Act (but may be subject to similar laws in your

state, so check), unless the state records are:

1. At the time of the request, in possession of a federal agency as a result of the conduct of that agency's official duties; 2. Created to meet federally dictated programs; or

3. Submitted to obtain federal funds.

**Air Force Publications:** Requests for standard unclassified Air Force publications should be logged in only. Send a letter to the requester that the publication is on sale from the National Technical Information Service (NTIS), 5258 Port Royal

Road, Springfield, Virginia 22161, and suggest requesting the publication directly from NTIS. Publications categorized

superseded, obsolete, rescinded, classified, "FOUO" or have a limited distribution are not available from NTIS. Refer

FOIA requests for such publications through normal FOIA channels to the OPR for a release recommendation. Current

Policy Guidance is available at http://www.foia.af.mil/ and http://www.dtic.mil/whs/directives/corres/pdf/540007p.pdf

**CONCLUSION**

General guidance for processing of FOIA and Privacy Act requests and for handling requests for particular kinds of re-

cords is contained in the Air Force Instruction 33-332. Your local FOIA/Privacy Act Monitor receives the latest guidance

from your state Monitor and NGB.

**RELATED TOPICS:**

****

****

****

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****

****

****

****

****

**SECTION**

Classified Material

14-2

Access to Military Records

14-4

Congressional and Legislative Inquiries

16-6

"For Official Use Only"

14-3

Investigations and Inquiries

16-11

Judicial Review of Military Administrative Actions

18-5

Media Relations and the Public Affairs Office

14-8

National Security Cases

1-21

Release of ROIs in Discrimination Complaints to Management Officials

9-7

Releasing Information in Litigation

14-7

Subpoenas and Consensual Release of Records

14-6

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-12 Privacy Act**_

_**Page 1**_

**Privacy Act**

**Updated by Lieutenant Colonel Francine Swan, January 2008**

**AUTHORITY** : 5 U.S.C. 552a, _The Privacy Act_ (PA); DoDD 5400.11, _DoD Privacy Program_ (8 May 07); DoD 5400.11-R, _DoD Privacy Program_ (14 May 07); AFI 33-332, _Air Force Privacy Act Program_ (29 Jan 04); AFMAN 33-326, _Preparing Official_ _Communications_ (1 Nov 99); 12 U.S.C. 3403, _et seq_.; applicable state law. 

## INTRODUCTION

The Privacy Act (PA) is intended to safeguard the privacy of an individual by controlling the compilation and use of per-

sonal information maintained by federal agencies. Because of the Privacy Act, the concept of records management within

the Air Force and its Reserve components has undergone fundamental change since 1975. Federal law now governs the

collection, maintenance and release of records. The Air Force and the Air National Guard Privacy Act Programs are gov-

erned by AFI 33-332, which implements 5 U.S.C. 552a. Check your state law for additional requirements. Because of the

complexity and consistent changes in this area of the law, this topic is intended to be an overview of the subject. The lat-

est interpretations of the law by the courts, and policies of DoD, USAF and NGB are put out in Messages and All States

Letters. Always check the latest information.

This topic has been written in briefing format to which minor adjustments may need to be made. Include this subject as

part of your Preventive Law Programs.

**DISTINGUISHED FROM FOIA**

There is an interrelationship between the Privacy Act and the Freedom of Information Act (FOIA). While both govern

the release of agency records, they operate in opposite ways.

1. The general rule of the Privacy Act is to withhold information unless disclosure is required or permitted; while the gen-

eral rule of the FOIA is to release information unless the information is exempt from disclosure; and

2. Requests for information are processed under the Privacy Act when individuals seek their own records; while requests

for information are processed under the FOIA when an individual's records are sought by a third person or entity.

**POLICY**

Air Force and Air National Guard policy are implemented through AFI 33-332 with a focus on protection of individual

privacy rights; maintenance of only so much personal information necessary for support of Air Force and Air National

Guard operations ("nice to have" information should not be kept); safeguarding personal information on file to prevent

unauthorized use, disclosure, or alteration; advising individuals what records the Air Force and Air National Guard main-

tain on them.

_**Basic Guidelines.**_ The Privacy Act of 1974 and this instruction apply only to information in Air Force systems of records on living U.S. citizens and permanent resident aliens. An official system of records must be authorized by law or Executive Order; controlled by an Air Force or lower level directive; and needed to carry out an Air Force mission or function.

The Deputy Chief of Staff, Communications and Information (HQ USAF/SC), is the senior official with overall responsi-

bility for the Privacy Act Program. The Office of the General Counsel to the Secretary of the Air Force (SAF/GCA) makes

final decisions on appeals. The Director, Architecture and Interoperability (HQ USAF/SCT), manages the program

through the Air Force Privacy Act Office in the Information Dissemination and Management Division (HQ USAF/

SCTIR). NGB is the denial authority for National Guard requests.

_**Air National Guard Commander's Legal Deskbook**_

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_**Section 14-12 Privacy Act**_

_**Page 2**_

**ACCESS TO AND REQUESTS FOR RECORDS**

A commander or a supervisor may maintain personal notes, both favorable and unfavorable, which may assist in prepara-

tion of an OPR or other administrative actions. They do not have to be disclosed because they are not Air Force or Air

National Guard records. But they become records if information in them is used for some official purpose.

The commander will occasionally be contacted by a banking or lending institution asking for credit information on a

member of the unit. Unless the individual has given written consent to disclose personal information, you are precluded

from doing so. However, under the Freedom of Information Act, unclassified information including name, rank, gross

pay, duty assignment and duty telephone number may be disclosed, if you or the unit FOIA/PA monitor have received a

valid, written FOIA request. Disclosure of a home address or home phone is not authorized without prior consent of the

individual concerned.

Another privacy act, the Right to Financial Privacy Act, 12 U.S.C. 3403, _et seq._ , prohibits a financial institution from releasing a customer's financial information to any officer or employee of the federal government, unless certain proce-

dures are followed. ANG technicians and AGRs are considered federal officers or employees for purposes of this statute.

The term "financial institutions" is so broadly defined in this statute that the term includes consumer finance companies

and any credit card issuer, including gasoline and department store credit cards. Do not request any financial information

on any individual, no matter how urgent or necessary the information is for any administrative or disciplinary action, un-

til you consult with a Staff Judge Advocate. If you are in receipt of any financial records on any individual, do not copy or retransmit them to any other individual or agency until you consult with a Staff Judge Advocate.

**PROCESSING THE REQUEST**

Requests from an individual for his or her own records in a system of records should be considered under both the Free-

dom of Information Act (FOIA) and the PA regardless of the Act cited. The requester need not cite any Act. Process the

request under whichever Act gives the most information.

The requester should be told if a record exists and how to review the record. If possible, respond to requests within 10

work days of receiving them. If you cannot answer the request in 10 workdays, send a letter explaining why and give an

approximate completion date no more than 20 workdays after the first office received the request. Show or give a copy of

the record to the requester within 30 workdays of receiving the request unless the system is exempt. Give information in

a form the requester can understand.

The first 100 pages are provided free, and reproduction costs are charged for the remainder. Copies cost $.15 per page;

microfiche costs $.25 per fiche ( _see_ AFI 33-332, para 4.3). Charge the fee for the first 100 pages if records show that the Air Force already responded to a request for the same records at no charge. Do not charge fees when the requester can

get the record without charge under another publication (for example, medical records), or for the search, or when repro-

ducing a document is for the convenience of the Air Force (reproducing a record so the requester can review it).

Denials are processed within 5 workdays after a request for access is received. When a record is not releasable, a copy of

the request, the record, and the reason for denying access (including the applicable exemption) should be sent to the de-

nial authority through the Staff Judge Advocate (SJA) and the PA officer. The SJA gives a written legal opinion on the de-

nial. The MAJCOM or FOIA/ PA officer reviews the file, gets written advice from the SJA and the functional office of pri-

mary responsibility (OPR), and makes a recommendation to the denial authority. The denial authority sends the re-

quester a decision letter. If the denial authority grants access, release the record. If the denial authority refuses access, tell the requester why and explain pertinent appeal rights. Individuals may request a denial review by writing to the Secretary of the Air Force, through the denial authority, within 60 calendar days after receiving a denial letter. The denial

authority promptly sends a complete appeal package to AFLSA/JACL. The package must include: (1) the original appeal

letter; (2) the initial request; (3) the initial denial; (4) a copy of the record; (5) any internal records or coordination actions relating to the denial; (6) the denial authority's comments on the appellant's arguments; and (7) the legal reviews.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-12 Privacy Act**_

_**Page 3**_

**PRIVACY ACT STATEMENT**

Before Guard members are required to provide personal information to any federal agency, they must be advised in writ-

ing of the law authorizing the collection of such information, the general purpose of its collection, the specific use to

which it will be put (including possible disclosures), and whether providing the information is mandatory or discretion-

ary. This advisement is known as the Privacy Act Statement.

**USE OF THE PRIVACY ACT STATEMENT ON OFFICIAL LETTERS**

The following guidelines should clarify when the Privacy Act Statement should and should not be used on official letters.

1. In accordance with AFMAN 33-326, you do not have to use the Privacy Act Statement on official military letters when

a social security number is used, unless it is a "system of records." In AFI 33-332, a "system of records" is any group of

records from which personal information is retrieved by name or personal identifier.

2. You do have to use the Privacy Act Statement on letters going to the private sector if a social security number is used,

but the individual should first give permission. It would eliminate any need to obtain permission, however, if you omit

the social security number from any letters going to anyone in the private sector.

**VIOLATIONS**

A member of the Air National Guard or Air Force or a civilian employee of either is subject to civil and criminal penalties

for failure to comply with the requirements of the Privacy Act of 1975. Such person may be fined up to $5,000.00 and be

found guilty of a misdemeanor for willfully:

1. Maintaining a system of records without first meeting the public notice requirements for establishing such a system of

records;

2. Disclosing individually identifiable information to one not entitled to have it;

3. Asking for and receiving another's record under false pretenses;

4. Improperly withholding documents from an individual who requests their own records; or,

5. Improperly denying correction of inaccurate or untimely records.

Additionally, the agency may be vicariously liable for damages if a USAF or ANG member or civilian employee of either

discloses individually identifiable information to one not entitled to have it or otherwise willfully violates any provision of the Privacy or Right to Financial Privacy Act.

**CONCLUSION**

AFI 33-332 outlines the training available on the Privacy Act. Commanders and local Privacy Act monitors should be

sure everyone knows how the Act works and what an individual's rights and responsibilities are under it. Being a Privacy

Act monitor is no easy job. Commanders and system managers can help by inviting the Privacy Act monitor to Com-

mander's Calls and by knowing the reporting requirements and complying with them.

Attachment 1 to this topic contains a checklist of to whom you can give the information, and for what purposes.

Questions on release of records, exempt records, or appeals from denial of access to exempt records should be addressed

to the unit Privacy Act monitor or Staff Judge Advocate.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-12 Privacy Act**_

_**Page 4**_

_**KWIK-NOTE: The Privacy Act is a complicated area of law. The federal courts decide precedent-setting cases affecting the**_

_**liability of individuals for violating the Act. If you receive a Privacy Act or Freedom of Information Act request, or some-**_

_**thing you THINK might be such a request, IMMEDIATELY coordinate with your Privacy Act monitor and/or the Staff Judge**_

_**Advocate. DO NOT request financial information from any credit card company or financial institution without first consult-**_

_**ing a Staff Judge Advocate.**_

**RELATED TOPICS:**

****

****

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****

****

****

****

****

****

****

**SECTION**

Criminal Investigations, Prosecutions and Reporting – DoD and DOJ

8-12

Release of ROIs in Discrimination Complaints to Management Officials

9-7

Classified Material

14-2

"For Official Use Only"

14-3

Access to Military Records

14-4

Releasing Information in Litigation

14-7

Subpoenas and Consensual Release of Records

14-6

Congressional and Legislative Inquiries

16-6

Investigations and Inquiries

16-11

Media Relations and the Public Affairs Office

14-8

Freedom of Information Act

14-11

Investigations and Inquiries

16-11

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-12 Privacy Act**_

_**Page 5**_

_Attachment 1_

**PRIVACY ACT CHECKLIST - TO WHOM AND FOR WHAT PURPOSE INFORMATION MAY BE RELEASED**

The GENERAL RULE relative to disclosure is that personal information may NOT be released to anyone WITHOUT the

prior written consent of the individual to whom the information pertains. There are a number of EXCEPTIONS to this

general rule. The information may be released:

1. To employees of DoD who need the information in performance of their duties;

2. When it is required to be disclosed to the public under the Freedom of Information Act;

3. To the Bureau of Census for purposes of planning or carrying out a census or survey;

4. To a recipient who provided the DoD or the Air Force with advance written assurance the record will be used solely as

a statistical research or reporting record, and the record will not be used to make any decisions about the rights, benefits, or entitlements of an individual. It must be sent in a form in which the identity of the individual cannot be ascertained

through usual research methods;

5. To an agency outside the DoD for a civil or criminal law enforcement activity authorized by law;

6. To another person under compelling circumstances affecting the health and safety of an individual, provided notifica-

tion of any such disclosure is sent to the last known address of the individual to whom the records pertain;

7. To the U.S. Senate or House of Representatives, or a congressional committee, or subcommittee, for matters within

their jurisdiction;

8. To a congressional office acting for a constituent who is the subject of the record;

9. To the Comptroller General or any authorized representatives, on business of the General Accounting Office;

10. Pursuant to the order of a Court of competent jurisdiction;

11. To the National Archives of the United States as a record with enough value to warrant keeping it;

12. To a contractor operating a system of records under contract to perform an Air Force or Air National Guard function,

such as personnel, payroll, or health systems management;

13. When the public's right to know outweighs the individual's right to privacy. An example of this may be release of a

home address to enforce a child support order. Never apply this exception without first consulting the Privacy Act moni-

tor and the Staff Judge Advocate; and/or

14. When medical records of a minor are requested, to the parents or legal guardians, but only when certain conditions

are met. First, have your unit's physician determine whether access could harm the person's mental or physical health. If

so, you probably will withhold the information. Consult the Privacy Act monitor and the Staff Judge Advocate in these

situations.

The federal Privacy Act allows individuals to examine just about any file maintained by the federal government which spe-

cifically relates to them. Like any other provision of the federal Privacy Act, this right of access does not apply to files maintained by state or local governments (for which applicable state law must be consulted), nor does it apply to files

maintained by private industry.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-12 Privacy Act**_

_**Page 6**_

_Attachment 2_

**PRIVACY ACT CHECKLIST - TO WHOM AND FOR WHAT PURPOSE INFORMATION MAY BE RELEASED**

The GENERAL RULE relative to disclosure is that personal information may NOT be released to anyone WITHOUT the

prior written consent of the individual to whom the information pertains. There are a number of EXCEPTIONS to this

general rule. The information may be released:

1. To employees of DoD who need the information in performance of their duties;

2. When it is required to be disclosed to the public under the Freedom of Information Act;

3. To the Bureau of Census for purposes of planning or carrying out a census or survey;

4. To a recipient who provided the DoD or the Air Force with advance written assurance the record will be used solely as

a statistical research or reporting record, and the record will not be used to make any decisions about the rights, benefits, or entitlements of an individual. It must be sent in a form in which the identity of the individual cannot be ascertained

through usual research methods;

5. To an agency outside the DoD for a civil or criminal law enforcement activity authorized by law;

6. To another person under compelling circumstances affecting the health and safety of an individual, provided notifica-

tion of any such disclosure is sent to the last known address of the individual to whom the records pertain;

7. To the U.S. Senate or House of Representatives, or a congressional committee, or subcommittee, for matters within

their jurisdiction;

8. To a congressional office acting for a constituent who is the subject of the record;

9. To the Comptroller General or any authorized representatives, on business of the General Accounting Office;

10. Pursuant to the order of a Court of competent jurisdiction;

11. To the National Archives of the United States as a record with enough value to warrant keeping it;

12. To a contractor operating a system of records under contract to perform an Air Force or Air National Guard function,

such as personnel, payroll, or health systems management;

13. When the public's right to know outweighs the individual's right to privacy. An example of this may be release of a

home address to enforce a child support order. Never apply this exception without first consulting the Privacy Act moni-

tor and the Staff Judge Advocate; and/or

14. When medical records of a minor are requested, to the parents or legal guardians, but only when certain conditions

are met. First, have your unit's physician determine whether access could harm the person's mental or physical health. If

so, you probably will withhold the information. Consult the Privacy Act monitor and the SJA in these situations.

The federal Privacy Act allows individuals to examine just about any file maintained by the federal government which spe-

cifically relates to them. Like any other provision of the federal Privacy Act, this right of access does not apply to files maintained by state or local governments (for which applicable state law must be consulted), nor does it apply to files

maintained by private industry.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-13 Freedom of Expression**_

_**Page 1**_

**Freedom of Expression**

**Updated by First Lieutenant Brian Carney, January 2016**

**AUTHORITY** : DoD Directive 1344.10, _Political Activities by Members of the Armed Forces,_ (19 Feb 08); DoD Directive 5500.7-R, _Joint Ethics Regulation_ (29 Nov 07); AFI 51-902, P _olitical Activities By Members of the U.S. Air Force_ (27 Aug 14) (applies only to ANG when federalized); AFI 51-903, _Dissident and Protest Activities_ (30 Jul 15)(applies only to active duty); AFI 1-1, _Air Force Standards_ (07 Aug 12); _Greer v. Spock_ , 424 U.S. 828 (1976)(distribution of campaign literature on military installation); _United States v. Albertini_ , 472 U.S. 675 (1985)(Barring defendant from Hickam AFB did not violate the First Amendment; _Brown v. Glines_ , 444 U.S. 348 (1980)(AF regulations requiring commander approval of petition held

valid); Carr, John A. Capt (USAF), _Free Speech in the Military Community: Striking a Balance Between Personal Rights and Military_ _Necessity_ , 45 A.F. L. Rev. 303 (1998). 

## INTRODUCTION

Commanders must know the policies, prohibitions and guidelines for handling the various forms of expression by their

members. A commander must carefully balance the member's right to freedom of expression against the missions of the

Air National Guard. A commander must deal promptly with violators; however, overreaction can cause more harm than

good. A commander's sound judgment is the key to success. The balance is between competing policies:

1. Commanders are responsible for the performance of the military mission and the maintenance of good order and disci-

pline; and

2. Every member enjoys the right to freedom of expression, but a commander cannot be indifferent to conduct which, if

allowed to proceed unchecked, would destroy the effectiveness of the unit.

**RESTRICTIONS ON FREE SPEECH**

While the general rule is that governments may not abridge the freedom of speech contained in the First Amendment to

the United States Constitution, the U.S. Supreme Court has placed restrictions on the exercise of free speech in cases

where:

1. The inflammatory speech is directed to incite, and is likely to incite, imminent lawless action; and

2. When balanced against the public interest, limitations on free speech are reasonable in support of a compelling govern-

ment interest.

Additionally, the military may impose restrictions on the speech of military personnel whenever the speech poses a sig-

nificant threat to discipline, morale, _esprit de corps_ , or civilian supremacy. ( _See_ Carr at 306.) Restrictions on military personnel often focus on two factors: the location where the expression occurs, or the status of the expressor.

1. Location Restrictions

The Supreme Court has set a lower threshold for the military commander's decision to limit forms of expression based

upon the concept that military installations are not public fora. Commanders need only show their reasons for limiting

expression have a "rational basis-in-fact." The general rule, according to many state statutes and regulations, is that on a military base, the base commander reigns supreme there over military personnel and civilians. Thus, although civilians

enjoy more freedom when not on a military installation, once they enter the installation, they are subject to the base com-

mander's rules of governing conduct on that base.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-13 Freedom of Expression**_

_**Page 2**_

_Closed vs. Open Bases:_ Traditionally, "closed" military installations have not been characterized as public fora for the exercise of First Amendment rights. Thus, a military regulation prohibiting partisan political activity on base may validly pre-

vent even presidential candidates from making political speeches on base. "Open" bases may be considered public fora

and attempts to restrict freedom of expression may be held to a higher standard than the "rational basis-in-fact" test.

_Open Houses:_ An open house is an open invitation to the general public to enter the installation. Usually community

groups such as Scouts, the Chamber of Commerce, Fire and Police Departments, Kiwanis, Rotary and sometimes defense

contractors are invited and permitted to set up booths and displays. Non-ideological community groups can generally be

permitted to engage in free expression even if expression is denied others as long as the activity is properly regulated by

the commander.

Properly planned open houses can include community groups which exercise expression without "opening the door" for partisan political activities. This is because the open house is a traditional military activity which does not transform the installation into an "open forum." The key to not turning your installation into an open forum is who you allow on base and what you permit them to say.

Base commanders can restrict the kind of expression, and restrict it to certain groups even though permitting them to

enter the base, and can restrict the total expression of certain persons by denying them access to the base. Be conserva-

tive about whom you invite and what you allow them to say and do. If this has become a problem for you, you may wish

to have "invitation-only" open houses, air shows, etc. The invitations may be sent to a group.

2. Status Restrictions

Historically, the courts and our laws have permitted tighter control over military members based on the constitutional

concern for maintaining civilian control over the military and for the need for discipline and obedience. As a result, Air

National Guard members, particularly when in Title 10 status, may be limited in their freedom of expression.

Expression can be regulated or restricted in the following areas:

1. Making "criminal" certain speech;

2. Political or ideological;

3. Written publications;

4. Distribution or posting of writings on base;

5. Pornography;

6. Petitions;

7. Demonstrations;

8. Participation in public events;

9. Disclosure of classified material;

10. Release of information constituting an unwarranted invasion of personal privacy;

11. Discriminatory acts or statements; and

12. Permissible off-base gathering places.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-13 Freedom of Expression**_

_**Page 3**_

**BASE COMMANDER AUTHORITY**

Whether persons are in the military, are civilians or are family members, their freedom of expression may be restricted

simply by being on the base, even as part of their regular duties or residence. The authority of many states' laws granting

base commanders full charge and control over their respective bases, likely includes prohibiting the distribution or post-

ing of materials, demonstrations, or other activities on the base if the base commander determines:

1. There is a clear danger to the loyalty, discipline, or morale of members; or

2. Interference with the accomplishment of the military mission may result.

Additionally, commanders can control even the "on-duty" speech of civilians. Commanders should consult with the Staff Judge Advocate to determine the extent of their authority over their bases according to their particular state's laws.

**CRIMES**

Certain speech, under state military justice codes, may constitute a crime. The following references are to

the UCMJ, applicable to Title 10 personnel, but may have equivalents under your state's laws:

1. Disloyal statements (Art. 134);

2. Contempt toward certain elected officials (Art. 88);

3. Disrespect to a superior commissioned officer (Art. 89);

4. Insubordinate language to an NCO (Art. 91);

5. False Official Statements (Art. 107); and

6. Provoking Speeches or Gestures (Art. 117).

**POLITICAL OR IDEOLOGICAL EXPRESSION**

The validity of the restraint on political or ideological expression is based on the premise that the primary function of a

military organization is to execute orders, not to debate the wisdom of decisions the Constitution entrusts to the legisla-

tive and judicial branches of the government and to the Commander-in-Chief.

Many state statutes and regulations prohibit commanders from authorizing demonstrations for partisan political pur-

poses on base. AFI 51-902 addresses the subject of partisan political activities by Air Force members by listing permitted

and prohibited activities. While the instruction is stated to be applicable to the Air National Guard, many of its prohibi-

tions only apply to ANG members in federal status. For a more complete discussion of this subject, _see_ the topic in this _Deskbook_ entitled " _POLITICAL ACTIVITIES_." By virtue of ANG membership, certain aspects of a member's political and ideological expression may be restricted.

Also certain public speaking engagements by ANG members may require approvals and may have to meet certain condi-

tions in the Joint Ethics Regulation, DoD Directive 5500.7-R and in applicable state statutes and regulations.

**WRITTEN PUBLICATIONS**

Written publications, including but not limited to those for newspapers or magazines, for non-military use must be ac-

complished during off-duty time, without the use of government property or supplies ( _see_ JER DoD Directive 5500.7-R

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-13 Freedom of Expression**_

_**Page 4**_

and applicable state statutes). They must also be written so as not to undermine good order and discipline, and depend-

ing on the subject matter, screened for classified material and approved for publication. Writings during off-duty time

which contain language violating federal or state law, such as advocating the overthrow of the government, may subject

the author to disciplinary action.

**DISTRIBUTION OR POSTING OF WRITINGS ON BASE**

Depending on state law or regulation, before certain writings may be distributed or posted on base, the base commander

may have to approve. Usually government agency or base-regulated activity publications do not require that approval be-

fore they may be distributed or posted. However, AFI 51-903, _Dissident and Protest Activities_ , prohibits Air Force members from distributing or posting any printed or written material, other than publications of an official government agency or

base-regulated activity, within any Air Force installation without permission of the installation commander or that com-

mander's designee. Members who violate this prohibition are subject to disciplinary action.

It does not appear that AFI 51-903 applies to ANG members, but because AFI 51-903 _does_ apply to Air Force installa-

tions, it is advisable to follow the requirements of this instruction. In any event, ANG Base commanders should require

ANG members who seek to post or distribute material on base, to submit a copy of the material and the proposed

method and place of distribution or posting. The commander may prohibit the distribution or posting of any material if

it poses a clear danger to the loyalty, discipline, or morale of members, or if it will interfere with the accomplishment of the mission. The commander should always consult with a judge advocate before prohibiting the distribution or posting

of written material on base, particularly if the contents represent political speech, _e.g._ , words critical of government policies or officials.

**PORNOGRAPHY**

Pornography is not constitutionally protected expression, but under many state civilian penal statutes or military justice

codes, mere possession of pornography may not be a crime. However, where pornography is displayed on base under cir-

cumstances likely to incite violence or disorder, it violates AFI 1-1. Under your state military justice code, there may be

criminal sanctions when the display of pornographic materials is prejudicial to good order and discipline. State law

should be consulted.

**PETITIONS**

While Air National Guard members have the right to petition members of the legislature, base commanders may, under

their authority granted by state law to be in charge and control of their base, control the circulation of petitions on base.

**DEMONSTRATIONS**

ANG members are subject to the Joint Ethics Regulation, DoD Directive 5500.7R, and when in federal status by AFI 51-

903, which prohibit members from participating in demonstrations when on duty, when in a foreign country, when in

uniform, when their activities constitute a breach of law and order, or when violence is likely to result.

Many state laws or regulations prohibit or restrict demonstrations on- or off-base by ANG members in Title 32 status.

Restrictions on expression of members may be based on whether they are on orders, and the type of those orders. Com-

manders should consult with their JAGs who should check the state's laws and regulations in this area.

**COMMANDER'S RESPONSIBILITIES**

In matters involving the freedom of expression of ANG members, commanders should:

1. Keep an open-door policy;

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_**Page 5**_

2. Be firm, but fair, when dealing with individuals causing potential problems;

3. Keep the base commander informed;

4. Take prompt corrective action when warranted; and

5. Never attempt to prevent a member from exercising the right to:

a. Correspond with elected representatives;

b. Seek redress under applicable statutes; or

c. Seek assistance from the Inspector General.

**CONCLUSION**

Because of First Amendment implications, the necessity for interpretation of federal and state statutes and regulations,

and the potential impact certain restrictions of expression have on the neighboring civilian community, commanders

should closely consult with their Judge Advocates before implementing any restrictions on expression.

_**KWIK-NOTE: Your status as a member of the Air National Guard and your presence on a military installation, whether as a**_

_**military member or civilian, restricts your freedom of expression in certain ways. Be aware of them.**_

**RELATED TOPICS:**

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**SECTION**

Problem Solving – ANG and USAF Commanders Similar and Different Approaches

2-6

Access to Military Installations

3-2

Commercial Solicitation on Base

3-9

Open House and Free Speech

3-13

Whistleblower Protection Act

5-9

Classified Material

14-2

Confidentiality and Privileged Communications

14-5

Media Relations and the Public Affairs Office

14-8

Freedom of Information Act

14-11

Privacy Act

14-12

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_**Section 14-14 Copyright**_

_**Page 1**_

**Copyright**

**Updated by First Lieutenant Brian Carney, January 2016**

**AUTHORITY** : 17 U.S.C. 101 _et seq., Copyright Act of 1976_ ; U.S. Constitution, Article I, Section 8, Clause 8; AFI 51-303, _Intellectual Property – Patents, Patent Related Matters, Trademarks and Copyrights_ (1 Sep 98, Administrative update 15 Jan 15); OpJAGAF 1993/76, _"Fair Use" Determination_ (30 Jul 93); OpJAGAF 1992/36, _No Copyright Infringement in Dining-In VCR_

_Comedy Tape_ (14 Apr 92). 

## INTRODUCTION

Our founding fathers believed protecting the creations of authors from exploitation by others enriches free expression,

and encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of

authors. As a result, the United States Constitution provides that Congress shall have power "to promote the progress of

science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

**WHAT IS A COPYRIGHT?**

Copyright is a form of protection provided by the laws of the United States to the authors of "original works of author-

ship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the

exclusive right to do and to authorize others to do the following:

1. To _**reproduce**_ the work in copies or phono-records;

2. To prepare _**derivative works**_ based upon the work;

3. To _**distribute copies or phono-records**_ of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

4. To _**perform the work publicly**_ , in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;

5. To _**display the copyrighted work publicly**_ , in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovis-

ual work; and

6. In the case of _**sound recordings, to perform the work publicly**_ by means of a digital audio transmission.

It is illegal for anyone to violate any of the rights provided by the copyright law to the copyright owner. These rights,

however, are not unlimited in scope. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these

rights. In some cases, these limitations are specified exemptions from copyright liability.

One major limitation is the doctrine of "fair use," which is given a statutory basis in section 107 of the 1976 Copyright

Act and has been relied on by the Air Force in using certain copyrighted material. _See, e.g.,_ OpJAGAF 1993/76, 30 Jul 1993 (use of a portion of two pieces of commercial music for an Air Force recruiting informational video is "fair use")

and OpJAGAF 1992/36, 14 April 1992 (use of a modified comedy tape comprising 20 or so short film clips taken from

various movies and a few songs used at a dining-in deemed to be "fair use"). In other instances, the limitation takes the

form of a "compulsory license" under which certain limited uses of copyrighted works are permitted upon payment of

specified royalties and compliance with statutory conditions.

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**WHAT CAN BE COPYRIGHTED?**

The following broad categories list the areas which constitute "works of authorship" under the Copyright Act of 1976 as

amended and, thus, may be copyrighted:

1. Literary works;

2. Musical works, including any accompanying words;

3. Dramatic works, including any accompanying music;

4. Pantomimes and choreographic works;

5. Pictorial, graphic and sculptural works;

6. Motion picture and other audiovisual works;

7. Sound recordings; and

8. Architectural works.

**HOW DO YOU KNOW IF SOMETHING IS COPYRIGHTED?**

The way in which copyright protection is secured is frequently misunderstood. A work that is created (fixed in tangible

form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author's life plus an additional 70 years after the author's death. There is no requirement to use a copyright notice under U.S. law in to protect rights in a work although many works do carry a copyright

notice. Example: © 2000 John Doe. ANG members should always presume that a work that falls within the categories

described above is protected by copyright. To use these works, authorization must be obtained from the author.

**COPYRIGHT AND THE ANG**

Copyright law affects Air National Guard units in many ways. ANG members should not copy copyrighted material un-

less an exception exists under the copyright laws for doing so, i.e., materials are copied for teaching purposes. Computer

software purchased by Air National Guard units must not be reproduced or used except as permitted by the vendor's con-

tract. In addition, any privately owned software shall not be used on ANG computers without written approval from the

commander and only if permitted by the software license.

In general, Air National Guard policy favors use of materials that would not involve infringement of a copyright. If copy-

righted materials are to be used, ANG members should seek permission from the copyright owner or contact a Judge Ad-

vocate to determine if the use of the material falls within an exception to the copyright laws, i.e., fair use. ANG members

should be mindful that violations of copyright laws could subject the violator, and possibly the commander, to criminal

prosecution, liability for monetary damages, and military disciplinary action. Any questions concerning the reproduction,

copying, or other use of any copyrighted material should be directed to the Staff Judge Advocate.

_**KWIK-NOTE: Copyrighted items may not be reproduced without permission.**_

**RELATED TOPICS:**

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**SECTION**

Unauthorized Copying and Unauthorized Use of Software

14-15

Trademarks

14-17

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_**Section 14-15 Unauthorized Copying and Unauthorized Use of Software**_

_**Page 1**_

**Unauthorized Copying and Unauthorized Use of Software**

**Updated by Lieutenant Colonel Barry K. Maddix, June 2001**

**AUTHORITY** : United States Code, Titles 17 (Copyright), 18 (Criminal) and 44 (Public Printing and Documents);

DoDD5330.3/AFSUP1, _Defense Automated Printing Service_ (DAPS)(18 Feb 98); AFI 51-303, _Intellectual Property – Patents, Patent Related Matters, Trademarks and Copyrights_ (1 Sep 98)(for reference only). 

## INTRODUCTION

Under the Copyright Act of 1976, any original work that authors have created by their own skill, labor, and judgment is

copyrightable. ANG members should presume all publications, software and other works created by others are protected

by copyright and require express permission to use. A copyright notice is not required for protection.

**OBTAINING PERMISSION TO USE COPYRIGHTED MATERIAL**

It is important to obtain permission before using copyrighted materials, particularly if those materials will be distributed over a wide audience or disseminated over the Internet. An Air National Guard unit could be found liable for copyright

infringement, whether directly or through a theory of vicarious liability, for allowing others to disseminate such informa-

tion through its computer systems. Personal liability of the member is also a possibility.

There is not a specific form for a request or license agreement set out in any ANGI or AFI 51-303. If material is obtained

through the Internet, there may be information supplied in the "disclaimer" section or the "legal" section what use is

permitted of the material posted and/or how one might obtain permission to use the material for a particular use. In writ-

ing to a copyright owner to seek permission to use certain copyrighted works, the military requester should be very spe-

cific as to the number of paragraphs, pages, or excerpts he/she intends to use; the type of use, i.e. on what World Wide

Web or Internet sources the materials will be posted; how long the postings will remain; whether access will be granted

to military users as well as the public; and whether the source of the work will be credited. The requester should be care-

ful not to imply a more limited audience for the material than will be the case. _See_ OpJAGAF 1996/15, _Permission to Use_ _Copyrighted Materials on Air Force Home Pages_ (7 Feb 96).

**ILLEGAL PHOTOCOPIES**

The subject of illegal photocopies encompasses issues of who can photocopy what, when, where, in what quantities and

at whose expense. Photocopies should not be made of copyrighted material unless the user has permission to do so or

the use fits within an exception to the Copyright Act of 1976. Additionally, Air Force personnel should not photocopy

government bonds, notes, money, checks, certificates of citizenship, immigration papers, draft cards or military badges.

State laws may also prohibit copying automobile titles, registration certificates and driver's licenses. AF Form 1112,

Copying Machine Limitations and Unlawful Reproduction, is used by some ANG units and identifies a list of items that

should not be copied on government copiers. It is the responsibility of the commander to ensure that unit photocopy ma-

chines are used only by authorized personnel for authorized purposes.

**UNAUTHORIZED USE OF SOFTWARE**

A computer program purchased from a vendor is a work of authorship that is subject to the copyright laws of the United

States. Only the owner of copyrighted software has the exclusive right to reproduce, adapt, distribute, perform or display

this software and, conversely, to exclude others from exercising these rights. When the Air National Guard purchases

such software pursuant to the terms and conditions of a purchase contract and license agreement, the owner of the soft-

ware grants the purchaser, under the contract terms, a LIMITED right to exercise the rights enumerated above.

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Air Force and Air National Guard personnel should not reproduce vendor-supplied software except as permitted by the

terms and conditions of the contract with the software vendor. Most importantly, copying commercially purchased soft-

ware not purchased by the Air National Guard or U.S. Air Force or using such software on a computer is illegal and

could result in appropriate disciplinary action. Finally, any use of privately owned software or hardware on military bases

must be approved by the unit commander or delegated authority.

Unauthorized copying of copyrighted computer software can subject the violator, and possibly the commander, to crimi-

nal prosecution, liability for monetary damages, and military disciplinary action. All Commanders, supervisors, officers,

and superintendents at all levels should inform, and periodically remind all their subordinates of the consequences of

copying or using copies of copyrighted materials and software.

**USE OF GRAPHICS OR OTHER MATERIAL ON HOME PAGES AND PUBLICATIONS**

Home Pages are computer sites on the World Wide Web of the Internet. They are accessible in varying degrees by Air Na-

tional Guard and Air Force members, employees, contractors, and/or the public. Such sites routinely provide access to

information databases as well as quick connections to other sites. Use of icons or graphics which have been incorporated

from commercial software products on a unit's home page or other publication may violate copyright laws if there has

not been authorization from the owner of the software from which such computer icons and graphics are taken.

Air National Guard offices may not "republish" such a copyright protected product. Copyright law recognizes that in the

area of computer software programs, it is the programmer's method of achieving a result and the expression of ideas that

is protected. The design of an icon, its appearance, coloration, and form is copyrightable. Within the software program,

the sequence of steps reflecting the "art" of writing the sequences of codes that will produce the icon is also protected.

To make such computer-generated designs, the publisher of the software had to create a software program that figura-

tively painted the design using pixels on the computer screen. The subject icons or graphics are thus images which were

first conceptualized, reflecting a creative process, and then produced through the process of a computer software pro-

gram. These creative processes result in a form of expression that is subject to copyright protection.

Therefore, where the license under which the software program containing the icons does not contain the authority to

use the icons in the manner desired (i.e., importing them into another program to be used on the World Wide Web), ex-

press permission from the copyright owner must be obtained. If permission is not obtained, then the icons may not be

used in this manner. _See_ OpJAGAF 1996/38 (19 Mar 96) for more information.

_**KWIK-NOTE: When in doubt, ASK before you make a copy of any other person's work.**_

**RELATED TOPICS:**

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**SECTION**

Copyright

14-14

Preventive Law Program

17-15

Computer Acquisition and Security

25-6

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_**Chapter 14, Information Control**_

_**Section 14-16 Improper Use of Government Computer Systems and Monitoring Internet and E-mail Use**_

_**Page 1**_

**Improper Use of Government Computer Systems and**

**Monitoring Internet and E-mail Use**

**Updated by Lieutenant Colonel Cynthia Ryan, April 2001**

**AUTHORITY** : 18 U.S.C. 2510-21, 2701-20, 3117, 3121-26; AFI 33-119, _Electronic Mail Management and Use_ (1 Mar 99); AFI 33-129, _Transmission of Information via the Internet_ (4 Apr 01); AFI 33-202, _Computer Security_ (15 Feb 01); AFI 33-207, _Computer Security Assistance Program_ (1 Sep 97); AFI 33- 219, _Telecommunications Monitoring and Assessment Program_ (15 May 00); AFI 71-101, Vol. I, Criminal Investigations (1 Dec 99). _See, also_ Lt Col LeEllen Coacher, _Permitting Systems Protection_ _Monitoring: When the Government Can Look and What It Can See_ , 46 A.F. Law Review 155 (1999); AFOSI Computer Crime Investigator's Handbook, April 2000. 

## INTRODUCTION

The use of government computers is limited to official and authorized use not only by section 2-301 of the JER, but also

applicable service regulations. However, some personal use may be authorized with the permission of certain superiors.

AFI 33-119 and AFI 33-129 adopt the same types of prohibitions set forth in the JER, although the instructions also con-

tain specific prohibitions that are set forth below.

With the Internet, and even e-mail, a necessary part of military operations, concerns occasionally arise about misuse and

the extent to which a commander may go to discover misuse. The primary statutory law in this area is the Electronic

Communications Privacy Act of 1986 ("ECPA"), an amendment to Title III of the Omnibus Crime Control and Safe

Streets Act of 1968, commonly known as the Wiretap Law. 18 USC Sec. 2501, _et seq_. Even though the government, like

any company, may own and provide telephones, voice mail and computers for its employees, it does not have unfettered

rights to monitor its employees' usage of these items. There are common law, statutory, and regulatory protections for

an employee's expectations of privacy in the workplace.

**WHEN IS ACCESS TO THE INTERNET PROHIBITED FROM GOVERNMENT COMPUTERS?**

AFI 33-129, applicable to the ANG, contains the following prohibitions for using the internet for other than authorized

purposes. Because the instruction is punitive, violations may result in adverse administrative or punitive disciplinary ac-

tion.

The specifically prohibited activities involving the use of government-provided computer hardware or software are listed

in paragraphs 6.1.1 through 6.1.12 of the instruction:

6.1.1. Any use of government-provided computer hardware or software for other than official and authorized government

business.

6.1.2. Activities for personal or commercial financial gain. This includes, but is not limited to: chain letters; commercial solicitation; and sales of personal property, except on authorized bulletin boards established for such use.

6.1.3. Storing, processing, displaying, sending, or otherwise transmitting offensive or obscene language or material. Of-

fensive material includes, but is not limited to, "hate literature," such as racist literature, materials or symbols (for example, swastikas, neo-Nazi materials, and so forth), and sexually harassing materials. Obscene material includes, but is not

limited to, pornography and other sexually explicit materials.

6.1.4. Storing or processing classified information on any system not approved for classified processing.

6.1.5. Storing or processing copyrighted material (including cartoons) unless approval is obtained from the author or

publisher.

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6.1.6. Participating in "chat lines" or open forum discussion unless for official purposes and after approval by appropriate Public Affairs channels.

6.1.7. Using another person's account or identity without appropriate authorization or permission.

6.1.8. Viewing, changing, damaging, deleting, or blocking access to another user's files or communications without appro-

priate authorization or permission.

6.1.9. Attempting to circumvent or defeat security or auditing systems without prior authorization or permission (such

as for legitimate system testing or security research).

6.1.10. Obtaining, installing, copying, storing, or using software in violation of appropriate vendor's license agreement.

6.1.11. Permitting any unauthorized individual access to a government-owned or government-operated system.

6.1.12. Modifying or altering the network operating system or system configuration without first obtaining permission

from the administrator of that system.

**WHAT ARE PROHIBITED USES OF GOVERNMENT ELECTRONIC MAIL SYSTEMS?**

Paragraphs 3.1 and 3.3 of AFI 33-119 set forth mandatory prohibitions; violations of these prohibitions can result in pu-

nitive and administrative disciplinary actions. As set forth in the instruction, military members and civilian employees

use government communications systems with the understanding that any type of use, authorized or unauthorized, inci-

dental or personal, serves as consent to monitoring. The government e-mail communications system can only be used for

official or authorized use. Any other use is prohibited. Some of the prohibitions concern sending e-mail to a large num-

ber of recipients. "Digital images as well as mass distribution of smaller messages may delay other traffic, overload the

system, and subsequently cause system failure." (Para 3.1.2). The use of electronic bulletin boards or e-mail public fold-

ers for non-mission related e-mail is highly suggested.

Official use includes communications, including emergency communications, which the Air Force has determined neces-

sary in the interest of the federal government. Official use includes, when approved by the theater commander in the in-

terest of morale and welfare, those communications by military members and other Air Force employees who are de-

ployed for extended periods away from home on official business.

The following are prohibited uses of government e-mail as set forth in paragraph 3.3.1.1:

3.3.1.1.1. Distributing copyrighted materials by e-mail or e-mail attachments without consent from the copyright owner.

Failure to maintain consent may violate federal copyright infringement laws and could subject the individual to civil liability or criminal prosecution.

3.3.1.1.2. Sending or receiving e-mail for commercial or personal financial gain using government systems.

3.3.1.1.3. Intentionally or unlawfully misrepresenting your identity or affiliation in e-mail communications.

3.3.1.1.4. Sending harassing, intimidating, abusive, or offensive material to, or about, others.

3.3.1.1.5. Using someone else's identity (UserID) and password without proper authority.

3.3.1.1.6. Causing congestion on the network by such things as the propagation of chain letters, broadcasting inappropri-

ate messages to groups or individuals, or excessive use of the data storage space on the E-mail host server.

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The instruction also states that an "Agency Designee," _i.e._ the first supervisor in the chain of command who is a commissioned officer or a government civilian holding a rank of GS-11 or above, may authorize limited personal use of

government-provided e-mail communication, when it:

1. Serves a legitimate public interest,

2. Conforms with theater commander-in-chief and MAJCOM policies,

3. Does not adversely affect the performance of official duties,

4. Is of reasonable duration and frequency, and whenever possible, is made during personal time (such as after-duty

hours or lunch time),

5. Does not overburden the communications system with large broadcasts or group mailings,

6. Does not create significant additional costs to DoD or the Air Force, and

7. Does not reflect adversely on DoD or the Air Force (such as uses involving pornography, chain letters, unofficial adver-

tising, soliciting or selling, violations of statute or regulation, inappropriately handled classified information or other

uses that are incompatible with public service).

Examples of authorized limited personal use that are set forth in the instruction include, but are not limited to:

1. Brief communications made while traveling on official business to notify family members of official transportation or

schedule changes.

2. Using government systems to exchange important and time-sensitive information with a spouse or other family mem-

bers; such as, scheduling doctor, automobile, or home repair appointments, brief internet searches, or sending directions

to visiting relatives.

3. Educating or enhancing the professional skills of employees ( _e.g._ , use of communication systems, work-related application training, etc.)

4. Improving the morale of employees stationed away from home for extended periods.

5. Job searching in response to federal government downsizing.

Although military members and civilian employees can subscribe to official Air Force-sponsored list servers, mailing

lists, and discussion groups, they must have written approval of the unit commanders at base-level/division chiefs at

headquarters, before subscribing to such information sources. Any person using government equipment to participate in

any news group or list-server, Air Force-sponsored or not, must clearly state "The opinions expressed are those of the

individual and do not represent an official position of the United States Air Force."

Participation in news groups or list-servers with content contrary to the standards set by the Joint Ethics Regulation

( _e.g._ , obscene, offensive, etc.) is prohibited.

Commanders may direct e-mail administrators to set up permanent blocks on a specific site, news group or list-server

address to prevent subscription to such services.

**WHAT IS MONITORING?**

It is important to distinguish between the three different types of "monitoring" because the rationale behind the "moni-

toring" and the gathering of information about computer transmissions will determine who can do it, when they can do

it, why they can do it and how you as a commander can use the information that is obtained. Each category requires a

different legal analysis which begins with "what is the purpose of the monitoring?"

**Systems Protection "Monitoring"**

Only specifically trained and authorized systems administrators can conduct this type of monitoring. Its purpose is to en-

sure the proper functioning of the communications system and the integrity of data in the system by allowing discovery

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and prevention of prohibited use. Because it is viewed as the first line of defense against unlawful intrusions into our government networks, it is part of our operations security. It is imperative to understand the proper boundaries and guide-

lines that govern this type of monitoring.

Those individuals responsible for conducting this monitoring activity are subject to punitive and administrative actions if

they violate paragraphs 21.6 and 21.7 of AFI 33-219. These sections provide that personnel are subject to discipline:

\-- if they "intentionally report, or file any acquisition or proprietary information, or personal privacy information (PPI)

extraneous to the TMAP activity, or any privileged information such as confidential communications between attorney

and client, husband and wife, or clergy and penitent," and

\-- if they do not "promptly destroy any information inadvertently collected except if it: 1) relates to an intrusion, or to

activities that are likely to impair the efficiency of the system or are likely to enhance system exposure to intrusions; or 2) reveals an emergency situation or situation threatening grievous bodily harm; or significant loss of property. Inadvertently collected information that is not destroyed shall be reported according with the provisions of paragraph 24.5."

It is important to remember that any information gathered by the systems administrators may be turned over to law en-

forcement for prosecution or administrative action if the information is discovered inadvertently. For example, if the sys-

tem indicates that the server is becoming clogged with e-mails with large graphic files, and the administrator determines

that the e-mails contain pornography, this information may be used for prosecution. However, systems administrators

may NOT be used to monitor specific communications to or from certain people for the purpose of gathering "evidence."

**Law Enforcement "Interceptions"**

The purpose of law enforcement monitoring or "interception" is to gather evidence of illegal activity. Therefore, the law

enforcement act must be authorized by either consent of a party to the communication or by court order, a valid warrant,

or a probable cause search authorization. The legal analysis will necessarily require constitutional, statutory, and regula-

tory guidance be strictly followed.

Law enforcement can use information gathered by systems administrators; however if law enforcement attempts to ex-

tend the scope of the "search" by attempting to gather further information, a warrant may be necessary.

Here it is important to analyze the "reasonable expectation of privacy." Look at the totality of the circumstances and the

operational realities of the workplace. Factors to examine: status of individual and their access to the computer; private

vs. an open bay office; security procedures; office policies and consent banners. Balance the interests of the employee

against the interests of the government in the place or item to be searched. Do you need a warrant? What is the scope of

the search? Are there exigent circumstances? Be careful—because usually you can prevent the "destruction of evidence"

merely by removing the person's access to the system.

Consider the use of the AFOSI, your State Attorney General, or the local United States Attorney's office if you find a

need to investigate and prosecute a computer crimes case as the affidavits for the warrants need to be carefully written

and the investigation itself requires highly trained investigators.

**TMAP/COMSEC "Surveillance"**

The purpose of the TMAP (telecommunications monitoring and assessment) Program set forth in AFI 33-219 is to moni-

tor unsecured telecommunications systems (telephone, radio, wire and computer transmissions) to ensure that these un-

secured systems are not used to transmit sensitive or classified information. In other words, its purpose is to ensure op-

erational security (OPSEC). Utilize DOD and AF instructions governing the program.

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This surveillance requires notice to users of the system (banners, for example); disclosure of information gathered may

be limited. SJAs should be intimately involved in reviewing the banners used, the written policies, and the other consent

notification actions.

**DO MILITARY PERSONNEL HAVE AN EXPECTATION OF PRIVACY IN GOVERNMENT COMPUTERS?**

Although the federal constitution provides all of us with protections from "unreasonable searches and seizures," the op-

erative word is "unreasonable." An analysis of search and seizure cases underscores the importance of the concept that

an individual must have a "reasonable expectation of privacy" in the area to be searched before the Fourth Amendment

applies. There arguably is no expectation of privacy in anything subject to inspection (essentially the argument is that

systems protection monitoring is an inspection).

**The Electronic Communications Privacy Act (ECPA), 18 USC Sec. 2511 _et seq._**

There are three components to the ECPA – Title I, which concerns the interception of wire, oral, and electronic communi-

cations; Title II, which concerns access to stored communications; and Title III, which concerns the use of pen registers

and trap and trace devices.

Generally the ECPA provides civil and criminal penalties for any person who intentionally intercepts, uses, or discloses

"any wire, oral, or electronic communication" or accesses stored communications.

Although there are five exceptions to the ECPA commonly used by the military, there are two primary exceptions to the

ECPA that afford employers broad rights to monitor their employees' use of government equipment/resources. They are:

_**Exception #1 – System Operator**_

Employees of an electronic communication service are allowed to monitor electronic communications that traverse their

system provided that the monitoring was "necessary incident to the rendition of his service or to the protection of the

rights or property of that service." 18 USC 2702 (b)(5). This exception allows system operators and certain other employ-

ees the ability to ensure the efficient operation of the system, that information is safe from loss (back-ups) and corrup-

tion, and that the system resources are not being improperly used by either authorized or unauthorized users.

_**Exceptions #2 and #3 – Consent**_

18 USC Sec. 2511 (2)(c) and (d) provide for monitoring by virtue of consent, which can come in many forms. For this

reason, special wording should be employed on log-on banners, user agreements, and organizational policies.) Subsec-

tion (2)(c) allows a "person acting under color of law to intercept a wire, oral or electronic communication, where such

person is a party to the communication or one of the parties to the communication has given prior consent." Subsection

(2)(d) provides that a "person NOT (emphasis added) acting under color of law may intercept a wire, oral, or electronic

communication, where such person is a party to the communication or one of the parties to the communication has

given prior consent."

Consent can be actual or "implied" and evidence of consent is created by the use of policy statements signed by members

and banners that are acknowledged before access to the computer is permitted. Before the commander can access data on

the Internet, it is important to analyze and understand the type of communications at issue because each has a different

approach under the ECPA, 18 USC Sec. 2511.

**Real Time and Stored Communications**

" _ **Interceptions of real time communications**_ " are defined in the OSI Handbook as the monitoring or recording of communications while being transmitted. These interceptions are subject to the federal wiretap statute, 18 USC Sec. 2511.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-16 Improper Use of Government Computer Systems and Monitoring Internet and E-Mail Use**_

_**Page 6**_

" _ **Access to stored communications**_ ," on the other hand, is the reading or copying of data that is, at that moment of being accessed, in storage and therefore is not being transmitted. Access to stored communications "in a facility through which

an electronic communication service is provided" is governed by 18 USC Sec. 2701, _et seq._

**Differences between accessing stored and live communications**

_**Access to live communications:**_ Even relying on the consent exception, permission is required from AFOSI/CC. DoDD

5505.9, para. 4.4.1 provides that AFOSI is the only Air Force entity authorized to intercept wire, electronic, and oral com-

munications for law enforcement purposes.

_**Stored communications**_ – Expectation of Privacy: In _United States v. Monroe_ , 52 M.J. 326 (CAAF 2000), the accused was convicted by a court-martial of wrongful use of a government computer, child pornography and obscenity offenses. Base per-

sonnel at Osan AFB were allowed to use the host Air Force e-mail for limited morale and welfare purposes and were

given individual accounts with unique log-ons and passwords. Users were advised by a banner that the system was for

"official purposes only." When e-mail became stuck in the system, LAN administrators opened the e-mails to diagnose

the problem and found the sexually explicit materials. The court found that a military member does not have a reason-

able expectation of privacy in e-mail sent over a government computer system. The court found the existence of a pass-

word of no concern finding that the password was to keep out interlopers, not the system administrator. The court com-

pared the user's e-mail account to an unsecured file cabinet which he could use for performing official duties and to

which his supervisor had access.

**WHAT DO YOU NEED TO KNOW AND DO AS A COMMANDER?**

Ensure that all of your personnel are properly trained on computer security before being provided access to government

computers. Ensure that your information systems personnel work closely with the base legal office to ensure that all com-

puters are properly bannered so that all personnel are aware of the extent of the monitoring that takes place on a regular

basis. Ensure that all users of the systems sign policy statements that set forth their duties and obligations, and ensure

that the members understand the monitoring. Ensure all of those who have access to the monitoring tools are properly

trained and know what they can and cannot do. Lastly, be aware of the tremendous security implications involved in the

unauthorized use of government computers.

_**KWIK-NOTE: Ensure that members are properly trained on computer security and authorized use before being provided ac-**_

_**cess to government computers. Understand that your authority to monitor use is limited, and depends upon the purpose of**_

_**the monitoring and the type of communication to be monitored.**_

**RELATED TOPICS:**

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**SECTION**

Ethics

7-3

Criminal Investigations, Prosecution and Reporting – DOD and DOJ

8-12

Computer Acquisition and Security

25-6

Fraud, Waste and Abuse

16-7

Unauthorized Copying and Unauthorized Use of Software

14-15

Surveillance

16-12

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-17 Trademarks**_

_**Page 1**_

**Trademarks**

**Updated by First Lieutenant Brian Carney, January 2016**

**AUTHORITY** : 17 U.S.C. 101 _et seq._ ; _Copyright Act of 1976_ ; U.S. Constitution, Article I, Section 8, Clause 8; AFI 51-303, _Intellectual Property – Patents, Patent Related Matters, Trademarks and Copyrights_ (1 Sep 98, Administrative update 15 Jan 15); OpJAGAF 1981/38, _Protecting Government Ownership of Base Newspaper Names_ (29 Jun 81). 

## INTRODUCTION

Trademark rights are an important type of intellectual property. The United States Constitution provides that Congress

shall have power "to promote the progress of science and useful arts, by securing for limited times to authors and inven-

tors the exclusive right to their respective writings and discoveries." Protection of trademarks is a critical part of that

power.

**WHAT IS A TRADEMARK?**

A trademark is a word, phrase, symbol or design, or combination of words, phrases, symbols or designs, which identifies

and distinguishes the source of the goods or services of one party from those of others. Examples of trademarks are

words like "Exxon" and "Kodak," the color pink on fiberglass insulation, and the cartoon character "Mickey Mouse." A

trademark is different from a copyright or a patent. A copyright protects an original artistic or literary work; a patent protects an invention.

A person can acquire trademark rights by actually using a mark in commerce. Registration of those rights can be

achieved by registering the mark with the United States Patent and Trademark Office (USPTO) in Washington, D.C. Al-

though federal registration is not required to establish rights in a mark, nor is it required to begin use of a mark, federal registration can secure a number of benefits for the holder beyond the rights acquired by merely using a mark. For example, the owner of a federal registration is presumed to be the owner of the mark for the goods and services specified in

the registration, and to be entitled to use the mark nationwide.

**WHAT RIGHTS DOES ONE HAVE IN A TRADEMARK?**

Two related but distinct types of rights compose a mark: the right to register and the right to use. Generally, the first

party who either uses a mark in commerce or files an application in the PTO has the ultimate right to register that mark.

The PTO's authority is limited to determining the right to register. The right to use a mark can be more complicated to

determine, particularly if two parties have begun use of the same or similar marks without knowledge of one another

and neither has a federal registration. Only a court can render a decision about the right to use, such as issuing an injunction or awarding damages for infringement.

Unlike copyrights or patents, trademark rights can last indefinitely if the owner continues to use the mark to identify its

goods or services. The term of a federal trademark registration is 10 years, with 10-year renewal terms. However, be-

tween the fifth and sixth year after the date of initial registration, the registrant must file an affidavit setting forth certain information to keep the registration alive. If no affidavit is filed, the registration is canceled.

Anyone who claims rights in a mark may use the TM (trademark) or SM (service mark) designation with the mark to

alert the public to the claim. It is not necessary to have a registration, or even a pending application, to use these designations. The claim may or may not be valid. The registration symbol, ®, may only be used when the mark is registered in

the PTO. It is improper to use this symbol at any point before the registration issues.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-17 Trademarks**_

_**Page 2**_

**WHY ARE TRADEMARKS IMPORTANT TO THE ANG?**

All ANG members should become acquainted with trademarks. Improper use of trademarks can lead to an action for

trademark infringement, which could pose liability for the unit, the commander, and/or the member. Although AFI 51-

303, _Intellectual Property – Patents, Patent Related Matters, Trademarks and Copyrights_ , does not apply directly to the Air National Guard, the guidance provided in that instruction should still be followed. Each ANG member, acting within the

scope of his or her official duties, should always honor private trademark rights and acknowledge the trademark owner's

mark, especially if it is used in an Air Force or Air National Guard catalog, correspondence, contract, or publication.

Properly used, a trademark can be legally protected indefinitely. However, if used improperly, a trademark can become

diluted or fall into generic use and lose its protected status. Words such as aspirin, zipper, kerosene, and harmonica were

once trademarks that became generic because their owners did not protect them properly. Companies that deal with the

ANG do not want to have their valuable trademarks added to the list of generic trademarks. The responsibility for pro-

tecting trademarks occurs every time an ANG member uses each trademark, whether the trademarks are used in prod-

ucts, presentations, books, marketing materials, or advertisements.

**HOW DO I USE THE TRADEMARKS OF OTHERS PROPERLY?**

Many companies give explicit directions on their web pages on how to properly use their trademarks. The six basic guide-

lines below can assist trademark use. Trademarks held by the Microsoft Corporation provide some excellent examples of

how these guidelines are used in practice:

1. Set trademarks apart from other words or the nouns they modify. The common way to do this is to properly capitalize

the product name and designate the trademarks with the appropriate symbols- ® or TM. You can also use underlining,

italics, or bold type.

Examples:

Incorrect

"When you start up Windows, click on the . . ."

Correct

"When you start up the Microsoft® Windows® operating system, click on the . . ."

2. Use Microsoft trademarks as proper adjectives. Trademarks are adjectives that describe a specific person, place, or

thing. Because a trademark is an adjective, it should be used with the noun that it modifies.

Example:

"The format command of the MS-DOS® operating system . . ."

Or

". . . application for the Windows® operating system . . ."

3. Never combine a trademark/product name with another third party's trademark/product name.

4. Don't use trademarks in the possessive or plural form.

Examples:

Incorrect

"CodeView®'s interface . . ."

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-17 Trademarks**_

_**Page 3**_

Correct

" . . .the Microsoft® CodeView® debugger's interface . . ."

Incorrect

"A case of Microsoft® PowerPoint®s . . ."

Correct

"A case of Microsoft® PowerPoint® presentation graphics programs . . ."

5. Use the appropriate trademark symbol in the proper place and give proper attribution.

Symbols:

® = registered trademark or service mark

TM = trademark ownership claimed

Notice:

"____________ are either registered trademarks or trademarks of Microsoft Corporation in the United States

and/or other countries."

6. Do not shorten, abbreviate or create acronyms out of Microsoft trademarks.

Examples:

Do not say VC++ for the trademark Visual C++TM or FP for the registered trademark FoxPro®.

**SHOULD AN ANG UNIT REGISTER ANY TRADEMARKS (BASE NEWSPAPER)?**

Many Air National Guard units and bases regularly publish newspapers, newsletters or magazines (collectively referred

to as newspapers in this topic). In most cases, the newspaper is known by a name, and has had that name for many

years. Prior editions of the _ANG Commander's Legal Deskbook_ have advised that the ANG unit or base should register its newspaper's name by obtaining either a federal or state trademark to avoid losing that recognition factor and to preclude

other organizations in that geographical area from using the newspaper's name. The prior section of the _Deskbook_ dealing with this topic noted there had been several cases where base newspapers' names (which the bases had not trademarked) were taken and trademarked by the private commercial printers the bases used to publish their newspapers,

when the bases decided to switch commercial printers.

To avoid this situation, commanders should first include a provision in their contracts with printers stating the unit has

established common law trademark rights to use the name of the base newspaper and the printer recognizes those rights

and agrees not to use the name for its own personal use. Additionally, the commander may want to consider acquiring

additional protection for the newspaper's name by obtaining a state registration of the trademark. State trademarks cost

less and are processed much quicker than federal trademarks. Most base newspapers are amply protected with a state reg-

istration since the threat of losing the newspaper's name is usually from spurious claims of trademark rights from third

parties in the local geographical area. _See_ OpJAGAF 1981/38, _Protecting Ownership of Base Newspaper Names_ (29 Jun 81).

Typically, states have trademark statutes for the registration of marks used solely in intrastate commerce. Most state reg-

istrations are for a 10-year period with 10-year renewals. Your Staff Judge Advocate can assist you in filing an application for state registration. Applications can usually be obtained from your state Secretary of State's office and involve a nominal fee. It may be possible, through the local state military department, to seek a waiver of these fees. Once the certifi-

cate of registration is received, the unit should give notice the name is registered by displaying the appropriate symbol to the upper right or lower right of the name, usually the TM symbol set in agate type.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 14, Information Control**_

_**Section 14-17 Trademarks**_

_**Page 4**_

**WHERE CAN I LEARN MORE ABOUT TRADEMARKS?**

Additional information about trademarks can be obtained from the United States Patent and Trademark Office,

(USPTO), a non-commercial federal entity and one of 14 bureaus in the Department of Commerce. The USPTO has an

excellent website at http://www.uspto.gov and can be reached as follows:

U.S. Patent and Trademark Office

600 Dulany Street,

Alexandria, VA 22314

800-786-9199

_**KWIK-NOTE: An important part of intellectual property rights, protecting trademarks extends to the ANG. Airmen should**_

_**become familiar with protecting the trademark rights of properly registered marks.**_

**RELATED TOPICS:**

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**SECTION**

Copyright

14-14

Unauthorized Copying and Unauthorized Use of Computer Software Preventive Law Program

14-15

Preventive Law Program

17-15

_**Air National Guard Commander's Legal Deskbook**_

509

**Chapter 15, International Operations Law**

**Table of Contents**

**Section**

15 - 1 Table of Contents

15 - 2 Asylum and Refuge Requests - Aircraft outside the United States

15 - 3 Border Clearance - Arrival of Aircraft from OCONUS

15 - 4 Code of Conduct

15 - 5 Airspace and Aircraft

15 - 6 Civil Affairs, Civil-Military and Stability Ops

15 - 7 Claims

15 - 8 Foreign Criminal Jurisdiction

15 - 9 Foreign Search, Inspections, and Customs Duties of U.S. Aircraft

15 - 10 Host Nation Support - Peacetime and Wartime (NATO)

15 - 11 Interrelationship of U.S. Customs and Military Agencies - The U.S. Country Team

15 - 12 Passports and Visas

15 - 13 Returning to the United States - Customs

15 - 14 Status of Forces Agreement (SOFA)

15 - 15 OPCON and ADCON for Deploying ANG Forces

15 - 16 Law of Armed Conflict

15 - 17 War and Deployment Planning – The Judge Advocate's Role

15 - 18 Loan of ANG Officers and Noncommissioned Officers to Allies

15 - 19 Enemy Prisoners of War and Detainees

15 - 20 Rules of Engagement

15 - 21 Cyberlaw and Cyberspace Military Operations

_**Air National Guard Commander's Legal Deskbook**_

510

_**Chapter 15, International Law**_

_**Section 15-2 Asylum and Refuge Requests – Aircraft Outside the United States**_

_**Page 1**_

**Asylum and Refuge Requests – Aircraft Outside the United States**

**Updated by Major Jack Murtha, October 2013**

**AUTHORITY:** DoDD 2000.11, _Procedures for Handling Requests for Political Asylum and Temporary Refuge_ (13 May 10); AFPD

51-7, _International Law_ (5 Feb 2009); AFI 51-704, _Handling Requests for Political Asylum and Temporary Refuge_ (22 Nov 11). 

## INTRODUCTION

When an Air National Guard aircraft or pilot flies on a mission outside the United States, the aircraft commander and

crew need to know how to properly respond to requests for temporary refuge and political asylum by foreign nationals.

As a practical matter, given the security measures which surround flight lines at most airports in the United States used

by military aircraft, it is unlikely that a person seeking political asylum would be able to approach an Air National Guard

aircraft on the ground in the United States to present such a request. The more likely scenario is a foreign national pas-

senger on a United States military aircraft making such request while the aircraft is in flight or is on the ground in a foreign country. However, during recent exercises with foreign forces in the United States, there have been instances of for-

eign military personnel requesting political asylum from U.S. military commanders.

**POLITICAL ASYLUM**

Political asylum is protection granted by the U.S. Government within the United States to a foreign national who, due to

persecution or a well-founded fear of persecution on account of his or her race, religion, nationality, membership in a par-

ticular social group, or political opinion, is unable or unwilling to avail himself or herself of the protection of his or her country of nationality (or, if stateless, of last habitual residence).

**TEMPORARY REFUGE**

Temporary refuge is protection afforded for humanitarian reasons to a foreign national in a DoD shore installation, facil-

ity, or military vessel within the territorial jurisdiction of a foreign nation or in international waters, under conditions of urgency to secure the life or safety of that person against imminent danger, such as pursuit by a mob.

**REQUEST FOR POLITICAL ASYLUM IN FOREIGN COUNTRY**

When a request for political asylum is made aboard a United States military aircraft in another country or in a foreign

installation, the aircraft commander or U.S. military commander CANNOT grant political asylum. In these situations,

the most the commander can do is grant temporary refuge to the person seeking political asylum to secure the life or

safety of the individual against imminent danger.

Foreign nationals (including third country nationals) seeking asylum should be referred, as applicable, to the local repre-

sentative of the United Nations High Commissioner for Refugees or, if outside the individual's country of nationality or

if the individual fears harm from host country officials, to the appropriate officials in the host country, foreign territory, or foreign possession, if any, for assistance in being recognized as a refugee or submitting a request for asylum under

that country's domestic laws and procedures.

**REQUEST FOR POLITICAL ASYLUM IN US TERRITORIAL JURISDICTION**

If a foreign national requesting asylum is physically present in the territory of the United States (defined as the 50 States, the District of Columbia, the commonwealth of Puerto Rico, the U.S. Virgin Islands, American Samoa, Guam, and the

Commonwealth of the Northern Mariana Islands), the application for asylum will be adjudicated by the U.S. Citizenship

and Immigration Services, Department of Homeland Security, or if the applicant is in removal proceedings, by an Immi-

gration Judge of the Executive Office for Immigration Review, Department of Justice.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 15, International Law**_

_**Section 15-2 Asylum and Refuge Requests – Aircraft Outside the United States**_

_**Page 2**_

Any request for asylum from a foreign national (or indication such a request is imminent) will be referred to the senior

Air Force commander or a member of the commander's staff. Upon receiving an asylum request, the commander must:

1. Notify as soon as practicable the servicing Air Force Office of Special Investigations (AFOSI);

2. Notify as soon as practicable the nearest office of the U.S. Citizenship and Immigration Service (USCIS), found at

www.uscis.gov/portal/site/uscis;  and

3. Notify their Command Post/Center to transmit an operational report (OPREP) to the Air Force Service Watch Cell

(AFSWC) in accordance with AFI 10-206, Operational Reporting.

Primary responsibility for providing protection to persons requesting asylum rests with the civilian law enforcement or

security agency having exclusive or concurrent jurisdiction. In unusual circumstances where it is necessary to protect per-

sons on a temporary basis pending involvement of USCIS, commanders should take interim measures to ensure the

safety of the person against attempts at forcible repatriation. Inquiries from foreign authorities will be addressed by the

senior Air Force official present with a response that the case has been referred to higher authorities for instructions.

**IMMUNITY AND POLITICAL ASYLUM DISTINGUISHED**

A U.S. military aircraft is within the sovereignty of the United States wherever it may be located. Although it may be im-

mune from the exercise of jurisdiction by the local nation while on the ground, this does not give the United States (in-

cluding its aircraft commanders) the right to grant political asylum aboard such aircraft.

**TEMPORARY REFUGE**

DoD policy is to grant requests for temporary refuge in a foreign country to protect people from imminent danger to life

or safety. This does not include protection of persons fleeing from duly constituted law enforcement authorities of the

host nation. The commander has the discretion to refuse temporary refuge if such action would endanger the aircraft and

crew or the military facility.

Once temporary refuge is granted, it cannot be terminated without authority from higher headquarters, as explained in

AFI 51-704. Two real-life situations highlight this rule. Temporary refuge is granted, but the aircraft commander then

learns that what was thought to be a fleeing from private violence is really flight from the police; or temporary refuge is

properly granted to protect life or safety of the individual, but when the local police arrive to restore order, the refuge-

seeker refuses to go with them, for whatever reason. In either situation - the mistake or the refusal to leave after the reason for refuge has terminated - even if the local police demand access to the refuge-seeker, the aircraft commander CAN-

NOT, pursuant to AFI 51-704, turn the person over without instructions from higher authority. When faced with either

situation, once temporary refuge has been granted, the aircraft commander should:

1. Notify the servicing AFOSI;

2. Protect the foreign national;

3. Immediately inform the AFSWC; and

4. Tell the local police of the efforts to obtain the necessary authority.

If the refuge-seeker decides to voluntarily leave the aircraft, the aircraft commander has no authority to prevent it. The

commander is required to report all circumstances involving requests for temporary refuge and political asylum to USAF

Operations Support Center. Temporary refuge will be terminated only when directed by the Secretary of the Air Force, or

higher authority, in coordination with U.S. agencies. Persons whose temporary refuge is terminated will be released to

the protection of the authorities designated in the message authorizing release. The commander should also seek the as-

sistance of the closest serving SJA, or his or her own SJA if no nearby U.S. military facility, if such a request is made.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 15, International Law**_

_**15-2 Asylum and Refuge Requests – Aircraft Outside the United States**_

_**Page 3**_

Commanders should ensure aircrews are regularly briefed on procedures for handling requests for political asylum and

temporary refuge under AFI 51-704, and should periodically coordinate these briefings with their staff judge advocates

for changes in the law.

**SUMMARY OF COMMANDER'S RESPONSIBILITIES**

1. Political asylum requests - no authority to grant; the most an aircraft commander can do is grant temporary refuge.

2. Temporary refuge request - authority to grant to protect life or safety of the individual.

3. Cannot grant temporary refuge against duly constituted law enforcement authorities outside of the U.S.

4. No need to grant temporary refuge if aircraft and crew will be endangered.

5. Once temporary refuge is granted for whatever reason, even if by mistake, only higher headquarters, not an aircraft or

local commander, can terminate it; and during time of temporary refuge, aircraft commanders must protect refuge-

seekers until receipt of further instructions from higher headquarters.

6. Once a political asylum request is made or temporary refuge is granted, the aircraft or local commander must immedi-

ately notify higher headquarters including AFOSI and USAF Operations.

_**KWIK-NOTE: Brief this topic annually to aircrews.**_

**RELATED TOPICS:**

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**SECTION**

Foreign Search, Inspection and Customs

15-9

Status of Forces Agreement (SOFA)

15-14

_**Air National Guard Commander's Legal Deskbook**_

513

_**Chapter 15, International Law**_

_**Section 15-3 Border Clearance -- Arrival of Aircraft from OCONUS**_

_**Page 1**_

**Border Clearance – Arrival of Aircraft from OCONUS**

**Updated by Major Jack Murtha, October 2013**

**AUTHORITY:** AFPD 24-4, _Customs and Border Clearance_ (15 Apr 93); AFI 24-404, _Customs - Domestic_ (26 Jul 94); AFI 11-2x-xxx by aircraft type, _e.g._ , 11-2C-130], _Operations Procedures_ , Vol 3, Chapter 6; [ http://www.uscis.gov/portal/site/uscis. 

## INTRODUCTION

An integral part of the worldwide mission of the Air Force is reception on Air National Guard bases of aircraft originat-

ing from foreign locations.

**INSPECTIONS AUTHORITY**

The Immigration and Naturalization Service (INS) of the U.S. Department of Justice clears all citizens in and out of the

United States. The INS has delegated the responsibility for border clearance inspections of aircrew, personnel and cargo

to military authority.

**PROCEDURE**

Commanders must provide full support to executive agencies, including federal Departments of Health and Human Serv-

ices, Education, Agriculture, Treasury, Interior, and Commerce, which inspect arriving aircraft. These inspectors are

authorized to board military aircraft arriving at Air Force installations, but their inspections are subject to all military restrictions necessary to preserve the security of classified material.

So far as practicable, inspectors of these agencies must be notified by the local commander in advance of the arrival or

departure of aircraft to or from OCONUS.

**PASSENGERS AND CARGO**

Aircraft arriving from OCONUS may unwittingly carry unwanted passengers or cargo in the form of pests and vector-

borne diseases, which may affect humans, plants, and animals.

Depending on where the flight originated, medical quarantine procedures for the passengers, cargo, and aircraft itself

may be necessary.

Garbage and trash may be generated during a flight from overseas. Aircraft personnel will insure trash generated in-

flight is stored in a tightly-closed, leak-proof container.

_**KWIK-NOTE: Commanders should know which civilian agencies they must notify concerning their aircraft arriving from**_

_**OCONUS.**_

**RELATED TOPICS:**

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**SECTION**

Civilian Travel Aboard Military Aircraft

27-3

Classified Material

14-2

Returning to the United States – Customs

15-13

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_**Air National Guard Commander's Legal Deskbook**_

514

_**Chapter 15, International Operations Law**_

_**Section 15-4 Code of Conduct**_

_**Page 1**_

**Code of Conduct**

**Updated by Lieutenant Colonel Lisa Grayson, December 2014**

****

**AUTHORITY:** Executive Order 10631, _Code of Conduct for members of the Armed Forces of the United States_ (August 17, 1955, as amended); DoDD 1300.7, _Training and Education to Support the Code of Conduct_ (CoC) (8 Dec 00, Certified Current, 21

Nov 03); DoDI 1300.21, _Code of Conduct (CoC) Training and Education_ (8 Jan 01); AFPD 16-13 _Survival Evasion Resistance and_ _Escape (SERE)_ (1 Mar 00, Certified Current, 2 Jun 2010); AFI 16-1301, _Survival Evasion Resistance and Escape (SERE) Operations_ (6 Sep 06).

**PURPOSE**

The Code of Conduct is a set of six rules for the fighting person to use to increase the chance of survival upon capture.

The Code's aim is to produce a better prepared, better disciplined, better informed and better guided fighting person.

**CODE OF CONDUCT OF THE U.S. FIGHTING FORCE**

Article I: I am an American, fighting in the forces which guard my country and our way of life. I am prepared to give my

life in their defense.

Article II: I will never surrender of my own free will. If in command, I will never surrender the members of my command

while they still have the means to resist.

Article III: If I am captured, I will continue to resist by all means available. I will make every effort to escape. I will accept neither parole nor special favors from the enemy.

Article IV: If I become a prisoner of war, I will keep faith with all my fellow prisoners. I will give no information or take part in any actions which might be harmful to my comrades. If I am senior, I will take command. If not, I will obey the

lawful orders of those appointed over me and will back them up in every way.

Article V: When questioned, should I become a prisoner of war, I am required to give name, rank, service number and

date of birth. I will evade answering further questions to the utmost of my ability. I will make no oral or written state-

ments disloyal to my country and its allies or harmful to their cause.

Article VI: I will never forget that I am an American, fighting for freedom, responsible for my actions, and dedicated to

the principals which made my country free. I will trust in my God and in the United States of America.

**AMENDMENTS TO ORIGINAL CODE OF CONDUCT**

Most of the Code of Conduct changes have been to remove the male designation. One exception is the change in Article

5. Originally, Article 5 only allowed the giving of name, rank, service number and date of birth. After the Vietnam Con-

flict, it was broadened to allow captives flexibility of response and action that would help maintain their self-respect after being pushed beyond the limits of human tolerance - broadened to encompass compassion. Training is the key element

to survival under enemy captivity. One aspect of that training is learning these rules. Understanding and living them will

help all fighting persons survive and maintain their honor.

**TRAINING**

There are three levels of Code training. Level A is the basic level given to all military members during accession training.

Level B and Level C are more in-depth levels of training. Each MAJCOM may direct additional training requirements.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 15, International Operations Law**_

_**Section 15-4 Code of Conduct**_

_**Page 2**_

**TRAINING**

Typically, this additional training occurs when members are assigned to certain high risk positions or high risk regions.

Code of Conduct training can be given by itself or as part of SERE or Personnel Recovery (PR) training. DoDI 1300.21

provides an excellent guide for the training on the Code.

**ENFORCEMENT**

The Code of Conduct is a moral guide designed to assist military personnel in combat or being held as POWs to live up

to the ideals expressed within it. This guidance, though, does not replace or conflict with the UCMJ. For instance, under

Article IV, the guidance is to obey lawful orders. An armed forces member's violation of that guidance is not punishable

as a violation of the Code but it is a violation that could be punished under the UCMJ.

**RELATED TOPICS:**

**SECTION**

Captivity or Hostile Detention (MOOTW)

15-5

Law of Armed Conflict

15-16

_**Air National Guard Commander's Legal Deskbook**_

516

_**Chapter 15, International Operations Law**_

_**Section 15-5 Airspace and Aircraft**_

_**Page 1**_

**Airspace and Aircraft**

**By Lieutenant Colonel Thomas C. Patton, November 2007**

**AUTHORITY:** Air Force Operations and the Law, 1st Ed., 2002; DoD 4500.54-G, _Foreign Clearance Guide_ ; AFI 11-202, vol.

3, _General Flight Rules_ , 1 June 1998; Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, T.I.A.S. 1591, 15 U.N.T.S. 295.

**OVERVIEW**

This chapter does not attempt in-depth review of the many sources of law that impact the international operations of Air

National Guard aircraft. Rather, it is a brief overview of important topics and sources. The Air Force Operations and the

Law, A Guide for Air & Space Forces, is an excellent publication, written by knowledgeable and expert members of the

Judge Advocate General's Corps, Operations Law Division. This overview draws liberally from it, and it is highly recom-

mended follow-on reading. It can be reviewed or downloaded from the HQ USAF/JAI web site, found at:

http://www.afjai.hq.af.mil/publications/af_olg.htm

**AIRSPACE DEFINED**

Two important sources of law governing international aircraft operations are the 1944 Convention on International Civil

Aviation ("Chicago Convention"), and the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which

together define national and international airspace.

States enjoy absolute sovereignty over their national airspace, and aircraft of foreign nations are prohibited from flying

over the territory of a state without consent. The Convention also created the International civil Aviation Organization

(ICAO), which creates the international aviation standards and recommended practices (SARPS) applicable to interna-

tional civil aviation. Although ICAO SARPS are inapplicable to state aircraft, AFI 11-202 requires all Air Force aircraft

operate according to the SARPS in international airspace, mission permitting. The Convention also requires that state

aircraft have "due regard" for the safety of navigation of civil aircraft.

UNCLOS defines a nation's airspace as the area above the nation and its territorial seas, which extend up to 12 nautical

miles of sea beyond its shores. Largely, airspace that is not national is international. All aircraft enjoy freedom of navigation and overflight in international airspace.

**ENTRY INTO FOREIGN AIRSPACE**

**Diplomatic Clearances**. International commercial aviation utilizes standing multinational and bilateral agreements to

permit international overflight and landing rights. Military and other state aircraft, however, often deal with national

overflight and landing on an _ad hoc_ basis. Absent a standing agreement, such as between the US and Great Britain, ANG

aircraft commanders must have individual diplomatic overflight or landing clearance. For some countries, diplomatic

clearance requests can take months to process. ANG units and aircraft commanders are therefore well advised to plan far

in advance of a scheduled mission.

Diplomatic clearances are obtained through the State Department. To process a request for overflight or landing, the unit

must supply the aircraft information, including type and tail number; aircraft itinerary and route of flight, including

Flight Identification Region (FIR) entry and exit points (discussed below), dates, and times; the identification of the

crew members, which may include a requirement to supply passports for each crew member; and support needed at the

arrival airbase.

Once diplomatic clearance is obtained, aircraft wishing to enter national airspace must identify themselves, seek or con-

firm permission to land or to transit, and must obey all reasonable orders to land, turn back, or fly a prescribed course

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_**Section 15-5 Airspace and Aircraft**_

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and altitude. Aircraft in distress are entitled to special consideration and should be allowed entry and emergency landing

rights. Where there is a standing international agreement granting overflight and landing rights to foreign aircraft, there

may also be designated procedures and conditions which must be complied with before those rights can be exercised.

**Air Defense Identification Zones in International Airspace.** Many nations, including the US have established air de-

fense identification zones (ADIZ) in the international airspace adjacent to their territorial airspace. The legal basis for

ADIZ regulations is the right of a nation to establish reasonable conditions of entry into its territory. Accordingly, an aircraft approaching national airspace can be required to identify itself while in international airspace as a condition of en-

try approval. ADIZ regulations promulgated by the US apply to aircraft bound for US territorial airspace and require the

filing of flight plans and periodic position reports. Some nations, however, purport to require all aircraft penetrating an

ADIZ to comply with ADIZ procedures, whether they intend to enter national airspace. The US does not recognize the

right of a coastal or island nation to apply its ADIZ procedures to foreign aircraft in such circumstances. Accordingly, US

military aircraft not intending to enter national airspace need not identify themselves or otherwise comply with ADIZ

procedures established by other nations, unless the US has specifically agreed to do so.

**Flight Information Regions.** A flight information region (FIR) is a defined area of airspace within which flight information and alerting services are provided. FIRs are allocated to coastal states by ICAO for the safety of civil aviation and encompass both national and international airspace. Primarily, the FIR system ensures that somebody is providing air traf-

fic control and flight service to civilian air traffic. Coastal states like having FIRs allocated to them for reasons of prestige and because they can charge flight service fees. Allocation of FIRs is a result of negotiation between interested countries. ****

Ordinarily, but only as a matter of policy rooted in safety concerns, US military aircraft on routine point-to-point flights through international airspace may follow ICAO flight procedures and utilize FIR services. This policy does not modify

US freedom of navigation rights. Exceptions to this policy include military contingency operations, classified or politi-

cally sensitive missions, and routine aircraft carrier operations or other training activities. When US military aircraft do not follow ICAO flight procedures, they must navigate with "due regard" for civil aviation safety. Some nations, however,

purport to require all military aircraft in international airspace within their FIRs to comply with FIR procedures, whether

or not they utilize FIR services or intend to enter national airspace. The US does not recognize the right of a coastal na-

tion to apply its FIR procedures to foreign military aircraft in such circumstances. Accordingly, US military aircraft not

intending to enter national airspace need not identify themselves or otherwise comply with FIR procedures established

by other nations, unless the US has specifically agreed to do so.

**INTERCEPTION OF AIRCRAFT - US PROCEDURES WHEN CHALLENGED**

**International Airspace, International Straits, or Over Archipelagic Sea Lanes**. When challenged by authorities of a

coastal or archipelagic state, aircraft commanders advise such authorities that the aircraft is a US military aircraft. In accordance with international law, the aircraft is either operating in international airspace, or exercising the right of transit passage of an international strait, or exercising the right of archipelagic sea lane passage, as the case may be. After the

advisory, the aircraft should continue on the planned route of flight. The aircraft commander always retains the responsi-

bility for the safe conduct of the flight and has the option of landing the aircraft if, in the aircraft commander's view, he or she has no other option than to follow the directions of an interceptor to prevent loss of life. If forced to land, the aircraft commander should immediately contact the US embassy.

**National Airspace of Foreign State**. If challenged in a foreign nation's territorial airspace, the aircraft commander must comply with directions to depart or land, if landing can be safely accomplished ( _e.g._ , suitable airfield). Upon landing, the aircraft commander should immediately contact the US embassy for assistance. The policy described above is applicable

to all DoD aircraft. Responding to the coastal or archipelagic state, or complying with direction to land may be contrary

to mission specific operating procedures ( _e.g._ , Peacetime Application of Reconnaissance Programs) or rules of engagement (ROE). In such instances, the operating procedures and ROE prevail. Such mission specific procedures or rules

must have Joint Staff approval before combatant command implementation.

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_**Section 15-5 Airspace and Aircraft**_

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**Aircraft in Distress.** State aircraft in distress are permitted under principles of customary international law to make emergency landings in the territory of another state without the permission of that other state. The crew must be treated

humanely and the aircraft permitted to depart. A state aircraft, on the ground as a result of distress, continues to enjoy

sovereign immunity. This immunity precludes search, inspection or detention of the aircraft without US consent. As

stated earlier in this chapter, US military aircraft commanders will not authorize search, seizure, inspection, or similar

exercises of jurisdiction by foreign authorities except by direction of the appropriate service headquarters or the US em-

bassy in the country concerned. Moreover, US consular officials shall be free to communicate with the aircrew and vice

versa. The US consular post must be informed if any US persons are detained in any manner. Consular officials have the

right to visit any detained US citizens.

**LANDING IN FOREIGN NATIONS**

**Status of Military Aircraft.** As military aircraft are "state aircraft" within the meaning of the Chicago Convention, they, like warships, enjoy sovereign immunity from foreign search, inspection and taxation. US military aircraft commanders

will not authorize boarding, search, seizure, inspection, or similar exercises of jurisdiction by foreign authorities except by direction of the appropriate service headquarters or the US embassy in the country concerned. ( _See_ Chapter 15-9, _Foreign Search, Inspection, and Customs Duties of U.S. Aircraft_ ). US policy prohibits the payment of navigation and overflight fees.

Moreover, US military aircraft do not, as a matter of policy, pay landing or parking fees at foreign government airports.

Landing and parking fees may be paid at commercial airports. Disputes have arisen with some host nations on the issue

of landing and parking fees. Where fees are payable, then US military aircraft, as with all US state aircraft, will pay rea-

sonable fees based on ICAO standards for parking and landing. Reasonable fees for services requested ( _e.g._ , fuel and routine maintenance fees) are routinely paid regardless of the type of airport.

**Status of Civil Aircraft Chartered by DoD**. The US regularly charters civil aircraft to provide air transportation and other services. Such aircraft retain their status as civil aircraft unless the US Government specifically designates them to be state aircraft, which is unusual. Unless designated as state aircraft, aircraft chartered by DoD are subject to the regime applicable to international civil aviation. Although many Status of Forces Agreements (SOFAs), base rights, and other

agreements grant civil aircraft chartered by DoD the same rights of access, exit and freedom from landing fees and other

similar charges enjoyed by US military aircraft, such agreements do not have the effect of declaring chartered aircraft to

be military or any other form of state aircraft. Consequently, civil aircraft chartered by DoD are not immune from landing

or similar fees and from foreign search and inspection.

**RELATED TOPICS:**

**SECTION**

Foreign Search, Inspection, and Customs Duties of U.S. Aircraft

15-9

Status of Forces Agreement (SOFA)

15-14

Judge Advocate Support for ANG Units Deploying Overseas

17-5

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_**Chapter 15, International Operations Law**_

_**Section 15-6 Civil Affairs, Civil-Military and Stability Operations**_

_**Page 1**_

**Civil Affairs, Civil-Military and Stability Operations**

**Updated by Colonel Cassie A. Strom, November 2007**

**AUTHORITY:** National Security Presidential Directive (NSPD) 44, _Management of Interagency Efforts Concerning Reconstruction and Stabilization_ (7 Dec 05); DODD 3000.05, _Military Support for Stability, Security, Transition, and Reconstruction_ (28 Nov 05); Joint Publication 3-57, _Joint Doctrine for Civil-Military Operations_ (8 Feb 01); Joint Publication 3-57.1, _Joint Doctrine for_ _Civil Affairs_ (14 Apr 03); US Army FM 41-10, _Civil Affairs._ _**NOTE: Joint Publication 3-57 is under revision.**_

Additional sources: DODD 2000.13, _Civil Affairs_ (27 Jun 94); JP 3-08, _Interagency, Intergovernmental Organization, and Nongovernmental Organization Coordination during Joint Operations_ , (17 Mar 06); Joint Publication 3-07.3, _Peace Operations_ (17 Oct 07); Air Force War and Mobilization Plan (WMP), Volume 1, Legal Annex P and Civil Affairs Annex R. 

## INTRODUCTION

The Air National Guard commander should be aware that many ANG Judge Advocates and Paralegals are trained in civil

affairs issues and have been involved in civil-military and stability operations. Individual ANG Judge Advocates can play

a critical role in the interface with the Department of State, other U.S. government agencies (OGAs), the U.S. Army and

Marine civil affairs teams, and host nation civilian officials when an ANG unit is deployed OCONUS. Further, JAG per-

sonnel may be deployed independently of their unit to perform civil affairs missions which focus on legal and judicial re-

form, or during exercises to train foreign militaries in the rule of law, protection of civil rights and military subordination to civil authority. Specific missions have included serving on the provincial reconstruction teams in Afghanistan and on

Rule of Law teams in Iraq. The ANG JAG Corps organizes and runs the United Nations Peace Operations and the Law

Symposium, currently held annually in New York City.

**MISSION**

National Security Presidential Directive (NSPD) 44, tasks the Department of State (DOS) to lead interagency coordina-

tion, planning, and civil response for reconstruction and stabilization through the Office of the Coordinator for Recon-

struction and Stabilization. Department of Defense Directive (DODD) 3000.05 defines stability operations as military

and civilian activities conducted across the spectrum from peace to conflict to establish or maintain order in states or re-

gions and states that, "integrated civilian and military efforts are key to successful stability operations." At all levels and across the full range of military operations, civil-military operations (CMO) are the primary military instrument in support of stability, counterinsurgency and other operations dealing with "asymmetric" and "irregular" threats. Military-

civilian teams are a critical stability operations tool. DOD leads and supports the development of military-civilian teams.

The relationship between CMO and civil affairs operations (CAO) is best considered within the broad context of unified

action which involves the synchronization, coordination, or integration of the activities of governmental and nongovern-

mental entities with military operations to achieve unity of effort. Joint Forces Commanders seek this synergy by several

means, one of the more prominent being through the conduct of CMO which bring together the activities of joint and

multinational forces and nonmilitary organizations to achieve common objectives. Commanders, in carrying out their

CMO responsibilities are assisted by Civil Affairs (CA) personnel. CA personnel are those personnel and forces whose

specialized CAO support execution of CMO by planning, organizing and coordinating its implementation through, with,

or by the remainder of the joint force, indigenous populations and institutions (IPI), OGAs, intergovernmental organiza-

tions (IGOs), and nongovernmental organizations (NGOs).

CMO are the activities of a commander that establish, maintain, influence, or exploit relations between military forces,

governmental and nongovernmental civilian organizations and authorities, and the civilian populace in a friendly, neu-

tral, or hostile operational area. CA activities (1) enhance the relationship between military forces and civil authorities in areas where military forces are present; and (2) involve the application of CA functional specialty skills, in areas normally the responsibility of civil government, to enhance conduct of CMO.

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_**Section 15-6 Civil Affairs, Civil-Military and Stability Operations**_

_**Page 2**_

The Joint Forces Commander (JFC) is responsible for the organization and centralized direction of CMO in the assigned

operational area. This responsibility embraces the relationship between military forces, civil authorities, and the civilian population of a country or area of operation. The scope of civil affairs operations may range from liaison and coordination with local authorities to the assumption by a commander of full legislative, executive, and judicial authority (mili-

tary government). Civil affairs operations may also include support for the programs of other U.S. agencies, such as so-

cial and economic development in the area of operations, or assumption of primary responsibility for these programs

when other U.S. agencies are unable to operate effectively. An appropriate capability must be maintained to assist com-

manders in carrying out their civil affairs responsibilities.

**CIVIL AFFAIRS PLANNING**

Civil affairs plans must include the following elements, as appropriate:

1. General Operations:

a. A concept of civil affairs support based on the mission and the basic civil-military relationship desired;

b. Resource and population control measures, in support of national plans, including establishment of law, order, and se-

curity of government and public facilities, when authorized;

c. Development of emergency civilian food and relief requirements, including estimates of support which cannot be met

by command resources;

d. Estimates of availability, extent, and capability of indigenous civil resources (facilities, communications and public

utilities, manpower, material, money, real estate, and services) to support U.S. Forces, and the provision of needed serv-

ices to the local community when their resources cannot provide basic services to the local population;

e. Liaison with the Chief(s) of the U.S. Diplomatic Mission(s);

f. A claims policy for the military government;

g. Essential civil affairs staff augmentation, consistent with assigned responsibilities;

h. Allocation and deployment of civil affairs personnel and unit resources;

i. Use of supporting units, in addition to civil affairs units, to assist in conducting civil affairs operations;

j. Coordination of civil affairs activities with staff elements whose fields of interest involve civil-military relationships (these fields include, but are not limited to, psychological operations, military operations, domestic emergencies, and intelligence activities); and

k. Provision of communications facilities necessary to support civil affairs operations and essential indigenous communi-

cations including emergency and public safety radio nets. Appropriate coverage must be given to these requirements in

the overall communications plan, including provision for joint military and civil sharing of the radio frequency spectrum;

2. Civil Affairs Operations involving Assumption of LESS THAN FULL Legislative, Executive, and Judicial Authority:

a. Development of status of forces or civil affairs agreements appropriate for the intended area of operations;

b. Establishment of civil affairs commissions and committees to include representatives of U.S. and/or allied agencies,

indigenous civil and military agencies, and other groups, as appropriate;

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_**Section 15-6 Civil Affairs, Civil-Military and Stability Operations**_

_**Page 3**_

c. Assistance to friendly forces engaged in civil affairs operations; and

d. Assistance to U.S. and other military forces engaged in military civil actions in support of foreign internal defense and related activities; and

e. Assistance to local authorities and institutions, and to Non-Governmental Organizations (NGOs) to meet local needs

when the civilian infrastructure can no longer meet its responsibilities.

3. Civil Affairs Operations involving Assumption of FULL Legislative, Executive, and Judicial Authority (Military Govern-

ment):

a. Issuance of general directives for the establishment and conduct of military government;

b. Provision of detailed guidance for execution of functions;

c. Proclamations to be issued to the civil populace in the area of operations;

d. Establishment and support of a post-hostilities military government organization; and

e. Procedures to facilitate orderly return to domestic government authority upon termination of the emer

gency or hostilities:

f. Procedures for communication of this information to the local populace.

_**KWIK-NOTE: Every commander should be familiar with these operations and closely coordinate with Judge Advocates in**_

_**executing them.**_

**RELATED TOPICS:**

**SECTION**

Interrelationship of U.S. Civil and Military Agencies – The U.S. Country Team

15-11

Status of Forces Agreements

15-14

War and Deployment Planning – The Judge Advocate's Role

15-17

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 15, International Operations Law**_

_**Section 15-7 Claims**_

_**Page 1**_

**Claims**

**Updated by Walter D. Phillips, Esq., Colonel Andrew Turley and Lieutenant Colonel Max Wood, July 2001**

**AUTHORITY:** AFI 51-501, _Tort Claims_ (1 May 96), Chapter 4, Section C; AFMAN (draft) 51-505, Tort Claims, Chapters 5 and 6.

**COMPONENT CLAIMS AUTHORITY**

The active duty Air Force, and not the Air National Guard, has the authority and responsibility to process and pay over-

seas claims. In many countries, claims jurisdiction will be assigned to the Army or Navy.

**FOREIGN CLAIMS ACT**

The purpose of the Foreign Claims Act (FCA) is to promote and maintain friendly relations through the prompt settle-

ment of meritorious claims.

The Foreign Claims Act generally deals with the acts of U.S. military personnel arising outside the scope of employment

and only applies outside the U.S., its territories and possessions. However in most countries to which U.S. forces now

deploy (not including NATO, Partnership for Peace [PfP] countries, Australia, Japan and Korea), the FCA also applies to

in-scope acts.

A delicate interrelationship exists between the Foreign Claims Act and foreign criminal jurisdiction of U.S. military mem-

bers, in that the prompt processing of an FCA claim may serve to prevent the imprisonment of a U.S. military member in

a local foreign jail through addressing the concerns of aggrieved foreign nationals and the host nation's local law enforce-

ment authorities. Personal injury or death motor vehicle accidents might be appropriately addressed in this manner

(property damage accidents are generally handled by insurers). Commanders, upon advice of the Judge Advocate, may

pay some money from their operational funds to the aggrieved foreign national for this purpose.

Time is of the essence in these situations, as host nation authorities are less likely to invoke foreign criminal jurisdiction if the potential complaining witness has been made whole financially through the FCA.

The criterion for payment is causation, not negligence. There is a two (2) year statute of limitations. Proper claimants are any foreign country or any political subdivision or inhabitant of a foreign country.

Claims are payable for death, personal injury and property damage. Also, noncombat activities such as sonic booms, air-

craft crashes and maneuver damage, are frequently paid under the FCA, except in NATO, PfP, Australia, Japan, and Ko-

rea, where they are handled as SOFA (Status of Forces Agreement) claims.

FCA claims may be paid based on the acts of a U.S. military member or civilian employee or even an indigenous U.S. em-

ployee, POW, or interned enemy alien.

Before leaving the foreign country, the commander, through the Judge Advocate, should report all incidents giving rise to

claims under the FCA to the active duty Judge Advocate office that has responsibility for handling claims arising in that

country.

**INTERNATIONAL AGREEMENT (SOFA) CLAIMS ACT**

These claims are governed by the particular SOFA in force in a host nation and they are sometimes referred to as Interna-

tional Agreement Claims Act (IACA) claims.

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_**Section 15-7 Claims**_

_**Page 2**_

Proper claimants are third parties, such as foreign nationals of any foreign country, some agencies of the host nation gov-

ernment and, in Germany and the United Kingdom, U.S. family members.

SOFA claims are payable for death, personal injury and property damage. Examples of claims not payable as SOFA claims

are "war damage" claims, host country military property claims, and contractual claims. SOFA claims are filed with and

paid by the host nation government which then bills the U.S. for a pro rata share of that payment, which share is usually

75%.

Payments by the host nation government under a SOFA are only for official duty or legal responsibility claims as opposed

to Foreign Claims Act claims which may be paid for scope of military duty (if not preempted by a SOFA) or non-scope of

military duty situations.

These names, whether correct or not, once released, have been entered into a computer database of all pilots, both mili-

tary and civilian, who, in the past, have been involved in an alleged flying violation. This information can then be re-

leased to ANYONE who requests it, including airline representatives.

**COMPARISON OF FCA AND IACA (SOFA) CLAIMS**

The FCA does not apply if there is a SOFA which establishes pro rata sharing of costs for official duty claims.

FCA claims generally deal with acts of U.S. military personnel arising outside the scope of employment while IACA

(SOFA) claims arise from the acts of U.S. military personnel acting within the scope of employment.

Payments under SOFAs are shared by the host nation and the U.S. Payments under the FCA are made only by the U.S.

Advance payments (Paragraph 1.18, AFI 51-501) may be made under the FCA but not under SOFAs unless the host na-

tion law authorizes them.

Claimants under the FCA may only request the FCA authority to reconsider an award. Under a SOFA, claimants have all

rights, including suit, given by the laws of the host nation; but in a lawsuit the defendant is the host nation.

The claimants under the FCA can be foreign governments, their political subdivisions, and inhabitants of a foreign coun-

try, while for SOFA claims, they can only be "third parties" as defined in that SOFA.

**OVERSEAS CLAIMS AUTHORITIES**

Authority to approve or review claims varies from command to command. Before deploying, know who the authority is

for the country of your deployment advise the appropriate claims office of your upcoming deployment and obtain from

that office any procedures to follow in the event of a claims situation arising during such deployment.

**RELATED TOPICS:**

**SECTION**

Status of Forces Agreement (SOFA)

15-14

Judge Advocate Support for ANG Units Deploying Overseas

17-5

Foreign Criminal Jurisdiction

15-8

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 15, International Operations Law**_

_**Section 15-8 Foreign Criminal Jurisdiction**_

_**Page 1**_

**Foreign Criminal Jurisdiction**

**Updated by Walter D. Phillips, Esq., Colonel Andrew Turley and Lieutenant Colonel Max Wood, July 2001**

**AUTHORITY:** AFI 51-703, F _oreign Criminal Jurisdiction_ (6 May 94); AFI 51-501, _Tort Claims_ (1 May 96); Status of Forces Agreements; applicable unified command publications ( _e.g.,_ EUCOM Directive 45-3, _Foreign Criminal Jurisdiction Over U.S._

_Personnel_ ). 

## INTRODUCTION

Foreign criminal jurisdiction (FCJ) is important to the Air National Guard Commander deploying OCONUS because few

topics are of greater concern to the host nation than the enforcement of the host nation's laws. And commanders do not

wish to leave any members of their unit in a foreign jail when they re-deploy.

**U.S. POLICY**

**** The U.S. policy is to MAXIMIZE U.S. JURISDICTION to the extent permitted by the circumstances and applicable law in

each individual case.

**WHO HAS WHAT KIND OF JURISDICTION**

In the absence of an agreement between countries, the host nation (the "Receiving State" in the NATO SOFA) has exclu-

sive jurisdiction over almost all criminal offenses committed by troops permanently stationed there.

However, in our SOFAs, we have made provisions for either exclusive or concurrent jurisdiction.

The United States (generally, the "Sending State" in the NATO SOFA) has exclusive jurisdiction over offenses not prohib-

ited by the law of the host country. Typically, these are traditional military justice offenses.

The host nation ("Receiving State") has exclusive jurisdiction over offenses prohibited by local law, but not by U.S. law.

It thus is important to read the Project Pitfall letters and the "Country law studies" of the host nation before deploying.

Concurrent jurisdiction applies to crimes that violate laws of both countries, such as murder, rape, robbery and assault.

The basic rule is that the host county has the primary (first) right to assert jurisdiction over all concurrent offenses ex-

cept:

_**Inter se**_ – offenses committed by a U.S. service member against the United States or another U.S. service member.

_**Official duty**_ – offenses committed by a U.S. service member while in the performance of official military duties.

Where the foreign country has jurisdiction, the U.S. policy will generally be to REQUEST the foreign country to WAIVE

ITS JURISDICTION and give it to us.

**AVAILABLE PROTECTIONS**

There are extensive protections (to include assistance, support and services) given to U.S. service members subject to

foreign criminal jurisdiction. Note: U.S. criminal jurisdiction for offenses committed abroad by U.S. civilians is very lim-

ited. Therefore, all deployed personnel (including technicians) must be in a military status for overseas deployments. An

ANG Judge Advocate can provide in-depth guidance on these protections.

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_**Page 2**_

_**KWIK-NOTE: Before deploying OCONUS, brief all deploying personnel on foreign criminal jurisdiction, and specifically on**_

_**those offenses indigenous to the local law of the host nation.**_

**RELATED TOPICS:**

**SECTION**

Civil Affairs

15-6

Claims

15-7

Foreign Search, Inspections and Customs Duties of U.S. Aircraft

15-9

Host Nation Support – Peacetime and Wartime (NATO)

15-10

Interrelationship of U.S. Civil and Military Agencies – The U.S. Country Team

15-11

Passports and Visas

15-12

Status of Forces Agreement (SOFA)

15-14

War and Deployment Planning – The Judge Advocate's Role

15-17

Judge Advocate Support for ANG Units Deploying Overseas

17-5

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_**Chapter 15, International Operations Law**_

_**Section 15-9 Foreign Search, Inspection and Customs Duties of U.S. Aircraft**_

_**Page 1**_

**Foreign Search, Inspection, and Customs Duties of U.S. Aircraft**

**Updated by Walter D. Phillips, Esq., Colonel Andrew Turley and Lieutenant Colonel Max Wood, July 2001**

**AUTHORITY:** DoD 4500.54-G, DoD _Foreign Clearance Guide_ (FCG); AFPD 24-4, _Customs and Border Clearance_ (15 Apr 93), AFI 24-405, _Department of Defense Foreign Clearance Guide_ (6 May 94); AFI 11-2x-xxx [aircraft type – _e.g._ , 11-2C-130], _Operations Procedures_ , Volume 3, Chapter 6.

**U.S. POLICY**

The United States' legal position and policy is that U.S. military aircraft are sovereign instrumentalities.

When in foreign countries with permission, military aircraft are entitled to the privileges and immunities normally ac-

corded warships. Such military aircraft are exempt from customs duties and taxation and are immune from search, sei-

zure, and inspection, including safety inspections, and spraying of aircraft interiors.

**AIRCRAFT COMMANDER'S RESPONSIBILITIES**

U.S. aircraft commanders are to REFUSE to authorize searches, seizure of property, inspections, spraying of aircraft inte-

riors, or other exercises of jurisdiction over USAF aircraft by foreign officials, except by direction of the appropriate service headquarters of the American Embassy.

Any unique arrangements with a particular nation will be included in the USAF Foreign Clearance Guide.

An Air National Guard commander should check with an ANG Judge Advocate about specific sensitivities on these is-

sues in some host nations that have led to the boarding or attempted boarding of some USAF aircraft.

_**KWIK-NOTE: The principle of sovereign immunity of U.S. aircraft must be maintained to the maximum. Brief this topic to**_

_**all aircraft commanders before they travel to foreign countries.**_

**RELATED TOPICS:**

**SECTION**

Asylum and Refuge Requests – Aircraft Outside the United States

15-2

Passports and Visas

15-12

Status of Forces Agreement (SOFA)

15-14

Judge Advocate Support for ANG Units Deploying Overseas

17-5

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 15, International Operations Law**_

_**Section 15-10 Host-Nation Support – Peacetime and Wartime (NATO)**_

_**Page 1**_

**Host-Nation Support - Peacetime and Wartime (NATO)**

**By Lieutenant Colonel Thomas C. Patton, November 2007**

**AUTHORITY:** DODD 5530.3, _International Agreements_ ; DODD 2010.9, _Acquisition and Cross– Servicing Agreements_ ; DODI 3020.41, _Contractor Personnel Authorized to Accompany the U.S. Armed Forces_ ; AR 570-9, _Host Nation Support_ (29 Mar 2006); Operational Law Handbook (2006).

**HOST-NATION SUPPORT DEFINED**

Host-nation support (HNS) is the civil and military assistance provided by a NATO host nation to the forces located in

or transiting through that nation's territory during times of crisis, transition to war, and wartime. The basis for that assistance lies in the commitments arising from the NATO Alliance, or bilateral or unilateral agreements between the host

nation, NATO, and the hosted nation(s).

HNS plays a critical role in US operations in NATO countries. Efficient use of available HNS can greatly reduce the com-

bat and combat support requirements of the hosted forces. ANG planners should determine what HNS is provided or

available for deploying units.

**TYPES OF SUPPORT**

The two types of HNS are planned and _ad hoc._

**Planned:** HNS is support that has been identified in past agreements for implementation during peacetime, crisis, and

wartime. Based upon negotiations between the hosting and hosted nation, HNS is identified for planned force deploy-

ment requirements. Once agreed upon, HNS can be requested in advance of arrival in the host nation, or as needs in-

crease in transition to crisis or wartime.

_**Ad Hoc:**_ HNS is that requested during crisis or wartime that has not been previously identified, planned, or agreed to in advance of the deployment to the host nation. Of course, host nation resources are not unlimited, and the hosted force

should expect the host nation to make meeting its own force requirements first priority.

**LOGISTICS**

The most common category of support is logistical, including facilities, transportation, services, supplies, construction

equipment and materials, base operations support, and civilian labor. The stability and strength of the host nation's infra-

structure, therefore, is a critical consideration.

Three factors will influence the decision to use HNS in a deployment: the capability, dependability, and willingness of

HN to provide assistance; the risks associated with dependence on HNS; and any negative impact on the security of US

forces.

_****_**SUPPORTED UNIT'S RESPONSIBILITIES**

If a unit is participating in the development or modification of an HNS agreement, during pre-deployment planning the

supported unit should identify support requirements and evaluate their own ability to fulfill them. Identified shortfalls

should be forwarded to the joint planning commission or group JPC/G. The JPC/G will consist of senior officials in the

unified command and the host nation's defense ministry. The JPC/G negotiates the specific requirements and develops

documents listing the details of expected HNS, which are further defined and detailed in the Joint Implementation Plan

(JIP). If a unit is planning its deployment around an existing HNS agreement, the unit planners should know what is con-

tained in the JIP. The JIP establishes detailed procedures for obtaining HNS.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 15, International Operations Law**_

_**Section 15-10 Host-Nation Support – Peacetime and Wartime (NATO)**_

_**Page 2**_

Once deployed, if the ANG commander determines that the provided HNS is not meeting mission requirements, he or

she see the servicing Judge Advocate to determine whether the existing agreement and JIP allow for modification of the

contracts or agreements that implement the JIP. Many NATO countries have USAF active duty Host-Nation Support

JAGs, who should always be contacted regarding any such considerations.

**INITIATIVES**

The NATO Strategic Commands have been developing standing Host-Nation Support Memoranda of Understanding

(HNS MOUs). These standing MOUs are intended to be used to support wide ranging NATO-led exercises and opera-

tions.

**RELATED TOPICS:**

**SECTION**

Status of Forces Agreement (SOFA)

15-14

Judge Advocate Support for ANG Units Deploying Overseas

17-5

_**Air National Guard Commander's Legal Deskbook**_

529

_**Chapter 15, International Operations Law**_

_**Section 15-11 Interrelationship of U.S. Civil and Military Agencies – The U.S. Country Team**_

_**Page 1**_

**Interrelationship of U.S Civil and Military Agencies – The U.S. Country Team**

**Updated by Walter D. Phillips, Esq., Colonel Andrew Turley and Lieutenant Colonel Max Wood, July 2001**

**AUTHORITY:** U.S. Army FM 41-10, _Civil Affairs._

## INTRODUCTION

**** Air National Guard commanders deploying OCONUS should be familiar with the U.S. Country Team Concept. The Presi-

dent has assigned to the Secretary of State the authority and responsibility for overall direction, coordination, and super-

vision of overseas activities. The Under Secretary of State for Security Assistance, Science and Technology is responsible

for coordinating the plans and programs dealing with the "security assistance" activities normally carried out by the mili-

tary. In this capacity, that official chairs the Arms Transfer Management Group (ATMG), which provides policy planning

and review functions for security assistance matters. ****

**COMPOSITION OF THE TEAM**

Coordination is accomplished in a given nation by the U.S. Country Team. The Team includes representatives of all in-

country U.S. government departments. The Ambassador, as the President's representative, functions within the organiza-

tion of the State Department and has full responsibility for directing and coordinating the activities and operations of all elements of the U.S. diplomatic mission. The Ambassador's authority does not, however, include the direction of U.S.

military forces operating in the field when such forces are under the command of a U.S. area military command. The

CINC of the U.S. area military command usually participates as a member of the Country Team, even though the CINC

is not a member of the diplomatic mission.

**FOCUS**

The Country Team's focus is directed toward both the identification of potential sources of conflict and threats to U.S.

interests in a particular country and to the amelioration of these problems through programs designed to assist the econ-

omy, upgrade medical care, improve transportation systems, etc. When assessing the needs of a country, host country

capabilities and the threat are also evaluated. On the basis of this evaluation, political, economic, and if necessary, military actions are then recommended. The primary concern of the Country Team is to help stabilize, as rapidly as possible,

a friendly and viable government capable of self-preservation and growth.

**JOINT EFFORT**

Involvement of U.S. military forces in foreign infrastructure development seldom is restricted to a single service. Service

components will operate in concert with each other and host country armed forces, under joint or unified commanders,

and in coordination with U.S. civilian agencies.

The Judge Advocate of an individual Air National Guard unit deploying OCONUS can be a key link between the ANG

commander and the U.S. Country Team in the host nation.

_**KWIK-NOTE: All commanders should establish contact with the U.S. Country Team in the host country before the deploy-**_

_**ment.**_

**RELATED TOPICS:**

**SECTION**

Civil Affairs

15-6

Host Nation Support – Peacetime and Wartime (NATO)

15-10

War and Deployment Planning – The Judge Advocate's Role

15-17

_**Air National Guard Commander's Legal Deskbook**_

530

_**Chapter 15, International Operations Law**_

_**Section 15-12 Passports and Visas**_

_**Page 1**_

**Passports and Visas**

**Updated by Walter D. Phillips, Esq., Colonel Andrew Turley and Lieutenant Colonel Max Wood, July 2001**

**AUTHORITY:** Status of Forces Agreements (SOFAs); _Joint Federal Travel Regulations_ (JFTR); DoD Directive 4500.54-G, _DoD Foreign Clearance Guide_ (Air Force Passport Matters home page). 

## INTRODUCTION

**** A major concern for Air National Guard commanders deploying OCONUS for exercises are passports and visas for their

personnel at transit sites and in the host nation at the deployment site. ****

**EXEMPTION FROM REQUIREMENTS**

According to Status of Forces Agreements (SOFAs), U.S. forces are generally EXEMPT from passport and visa regula-

tions and immigration inspection upon entering or leaving a host nation. The major SOFAs provide that a U.S. military

ID card and "movement orders" are sufficient.

Personnel on mobility status to "high threat areas" or passing through "high risk airports" can obtain unofficial pass-

ports and receive reimbursement through DoD accounting and finance channels.

In some countries where the SOFA is not as well developed as in NATO, U.S. forces may not be exempt. If this is the

case, it will be necessary to explore whether the host nation will issue "plane-side visas" upon arrival overseas. In the alternative, other means of obtaining visas should be arranged before deployment.

The country deployed to may not have a SOFA, and passports and visas may be required.

Always check the SOFA and law of the host country before you deploy for local customs laws and regulations applicable

to your personnel.

These concerns illustrate why it is wise to involve an ANG Judge Advocate in the planning stage of any deployment.

_**KWIK-NOTE: Before deploying, always check the applicable SOFA to determine passport, visa and customs requirements of**_

_**the host station, and brief this topic to all deploying personnel before deployment.**_

**RELATED TOPICS:**

**SECTION**

Foreign Search, Inspection and Customs Duties of U.S Aircraft

15-9

Status of Forces Agreement (SOFA)

15-14

War and Deployment Planning – The Judge Advocate's Role

15-17

Judge Advocate Support for ANG Units Deploying Overseas

17-5

_**Air National Guard Commander's Legal Deskbook**_

531

_**Chapter 15, International Operations Law**_

_**Section 15-13 Returning to the United States – Customs**_

_**Page 1**_

**Returning to the United States – Customs**

**Updated by Walter D. Phillips, Esq., Colonel Andrew Turley and Lieutenant Colonel Max Wood, July 2001**

**AUTHORITY:** 19 U.S.C. 1481, e _t seq_.; AFPD 24-4, _Customs and Border Clearance_ ; AFI 24-404, _Customs - Domestic_ (15 Apr 93); AFI 11-2x-xxx [aircraft type – _e.g._ , 11-2C-130], _Operations Procedures_ , Vol. 3, Chapter 6 (U.S. Customs Home Page).

**SEARCH OF BAGGAGE**

**** ANG members returning to CONUS from OCONUS deployments may have baggage subject to U.S. Customs searches

and ANG members will have to file declarations as to all articles bought abroad.

Baggage on military aircraft will be examined at the U.S. port of entry where the aircraft has landed in the same manner

as baggage on commercial aircraft.

**EXCEPTIONS**

Specific exemptions are provided for alcoholic beverages and tobacco products. There are differences in exemptions for

military members who have been OCONUS on temporary duty (TDY) as opposed to permanent change of stations

(PCS).

An ANG Judge Advocate should be consulted in regard to current U.S. customs rules, and these rules should be briefed

to all personnel who deploy to foreign countries.

_**KWIK-NOTE: Military members on duty in foreign countries are not exempt from U.S. customs laws and regulations upon**_

_**returning to the United States.**_

**RELATED TOPICS:**

**SECTION**

Judge Advocate Support for ANG Units Deploying Overseas

17-5

_**Air National Guard Commander's Legal Deskbook**_

532

_**Chapter 15, International Operations Law**_

_**Section 15-14 Status of Forces Agreement**_

_**Page 1**_

**Status of Forces Agreement (SOFA)**

**Updated by Colonel Yvette Schue, January 2018**

**DEFINITION AND PROVISIONS**

**** It is the policy of the United States that U.S. Department of Defense personnel should not be sent to foreign countries unless sufficient status safeguards are assured. Status of Forces Agreements (SOFAs) are the means by which this policy

is given effect. SOFAs define the legal status of U.S. Department of Defense (DoD) personnel, activities, and property in

the territory of another nation, and set forth rights and responsibilities between the United States and the host govern-

ment. SOFA protections typically extend not only to uniformed service members in the host country, but also to civilian

employees of DoD organizations in the country, and (with limitations) to their family members. Some degree of coverage

of DOD contractors is sometimes provided for, but that is not the norm. Nationals of the host country are not covered.

The United States has some form of SOFA agreement with more than 100 nations, about half under the NATO or the

Partnership for Peace (PFP) SOFAs, which apply, respectively, to all NATO allies and most Partnership for Peace part-

ners. In addition, comprehensive agreements exist with long standing U.S. allies and partners like Australia, Israel, Japan

and Korea, and a variety of less comprehensive agreements with other nations. There are, however, still countries with

which the United States has significant military relationships but no SOFA.

Some of the topics covered in SOFAs are operational rights, personnel actions, security and law enforcement, taxation,

customs, passports and visas. The most common provision of SOFAs pertain to Foreign Criminal Jurisdiction (FCJ) and

claims. These are topics of particular concern to an Air National Guard commander preparing for an OCONUS deploy-

ment.

SOFA criminal jurisdiction provisions are the highest priority for DOD. These are meant to ensure that U.S. service mem-

bers accused of crimes are treated fairly and in a manner consistent with U.S. constitutional protections, and to affirm

the primacy of U.S. military law for disciplinary purposes. Accordingly, the United States seeks exclusive criminal jurisdiction, or at least concurrent jurisdiction arrangements that will, in practice, secure U.S. jurisdiction where doing so is important to U.S. interests.

Under major SOFAs like NATO or Partnership for Peace, U.S. forces are exempt from passport and visa regulations and

immigration inspection upon entering and leaving the host country; a U.S. Armed Forces ID card and movement orders

will usually suffice.

In both Iraq (through diplomatic notes as of 2014) and Afghanistan, the U.S. has worked out bilateral agreements with

the host nation that essentially provide immunity from criminal and civil jurisdiction for U.S. forces serving in those

countries. In Afghanistan there is also a NATO SOFA for forces operating under the NATO umbrella. In many African

nations there are also diplomatic notes serving the function of a SOFA, but there are other nations with which there is

no agreement, despite U.S. forces being present.

**JUDGE ADVOCATE ASSISTANCE**

An ANG Judge Advocate can do much to work out the details in advance of an OCONUS deployment. Contact the host

nation legal office to obtain the current practices relating to the SOFA or other bilateral agreement and the host coun-

try's law and customs. Thoroughly prepared legal briefings by an ANG Judge Advocate before deployment can prevent an

international incident that could lead to an ANG member being placed on International Hold in the host nation, pending

a civil adjudication or court-martial.

_**KWIK-NOTE: If the place of deployment has a SOFA, brief it to all deploying personnel before you go.**_

_****_

_**Air National Guard Commander's Legal Deskbook**_

533

_**Chapter 15, International Operations Law**_

_**Section 15-14 Status of Forces Agreement**_

_**Page 2**_

**RELATED TOPICS:**

**SECTION**

Claims

15-7

Foreign Criminal Jurisdiction

15-8

Passports and Visas

15-12

Judge Advocate Support For ANG Units Deploying Overseas

17-5

_**Air National Guard Commander's Legal Deskbook**_

534

_**Chapter 15, International Operations Law**_

_**Section 15-15 OPCON and ADCON for Deploying Air National Guard Forces**_

_**Page 1**_

**OPCON and ADCON for Deploying Air National Guard Forces**

_**Note: This article was a collaborative effort by Major General Robert Gruber, Colonel Joe Pexa, Colonel Jim Thompson,**_

_**Colonel Andy Turley and Lieutenant Colonel Terry Davis.**_

**January, 2001**

## INTRODUCTION

**** To understand the concepts of administrative control (ADCON) and operational control (OPCON) as they apply to Air

National Guard members, one must first understand the legal structure of the United States Air Force and the means by

which ANG members are brought onto active duty.

**The Legal Structure of the United States Air Force**

The Air Force is composed of three separate organizations:

The Active Duty Air Force

The Air Force Reserve

The Air National Guard of the United States (ANGUS).

The Air Force Reserve and the Air National Guard of the United States are often referred to together as the "Air Reserve

Component (ARC)." The active duty and the Air Reserve Component perform duty only under Title 10 of the United

States Code, a federal statute. Members of the active component and the Air Force Reserve are members of their own

separate organizations. Regular Air Force members are military members at all times, and reserve component members

are citizen soldiers. The Air National Guard members, however, belong to two separate organizations: the Air National

Guard and the Air National Guard of the United States.

_**The Air National Guard (ANG)**_

The Air National Guard is the air arm of the organized militia that exists in all 50 states, the District of Columbia, and

the territories of Guam, Puerto Rico, and the Virgin Islands. The ANG is not a reserve component of the United States

Air Force. It is a unit-structured state organization, composed of federally-recognized members and units, created and

managed under state law by the governor (or equivalent civilian official) serving as its commander-in-chief. Under the

authority of the state commander-in-chief, the ANG in each state is led by The Adjutant General (TAG) for that state,

and in each territory and the District of Columbia by a separate commanding general. ANG units and their members are

state militia personnel trained in accordance with the discipline prescribed by the United States Congress.1 The ANG

can be called into federal service as a militia force to execute such federal tasks as enforcing federal law, suppressing insurrection, and repelling invasions, but such service is very rare for ANG units and members. This is not service as a re-

serve component of the Air Force. When military members are in ANG status, it is usually for the purpose of training.

ANG members either perform their duty under Title 32, U.S. Code, or under state statute when they are ordered onto

state active duty as the state militia by their governor for state emergencies. ****

_**The Air National Guard Of The United States (ANGUS)**_ ****

The ANGUS is an organization separate from the ANG and is a reserve component of the USAF. It consists of federally

recognized units and their members who are activated or mobilized. ANG members become members of the ANGUS

when they enter Title 10 active duty status by various methods of activation or mobilization. ANGUS members activated

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_**Chapter 15, International Operations Law**_

_**Section 15-15 OPCON and ADCON for Deploying Air National Guard Forces**_

_**Page 2**_

or mobilized at less than full mobilization are not regular Air Force members nor do they count against active duty end

strength unless they are brought onto active duty by "Full Mobilization." ANGUS members only perform their duty un-

der Title 10, U.S. Code.

_**Distinction Between and Dual Membership in the ANG and ANGUS**_

The ANG and the ANGUS are two completely separate legal organizations composed of identical personnel. Members

can only serve in one of these two organizations at a given time. The ANG is the state militia, made up of federally recog-

nized units in the states, the District of Columbia and the territories of Guam, Puerto Rico and the Virgin Islands. ANG

members perform training duty under Title 32, and can only perform Title 32 duty in the United States. Its members

have no authority over Title 10 organizations or members and likewise are not governed in most circumstances by Title

10 members or organizations, such as the regular Air Force, or statutes, such as the federal UCMJ. (In some limited cir-

cumstances in CONUS, a Title 10 officer may be dual-commissioned or detailed to serve as commander of an ANG unit,

with the concurrence of the governor. **2** A similar unique arrangement exists for sector commanders in 1st Air Force,

who are full-time ANGUS officers.) For members of the ANG to be able to perform duty OCONUS, they must first be-

come part of the ANGUS under one of the several ways ANG members are brought onto active duty as discussed in the

next section. ANGUS members only perform duty under Title 10. Except in the limited circumstances discussed above,

ANGUS members have no authority over Title 32 organizations or members and likewise are not governed by members

or organizations, such as the ANG or individual state military statutes. One of the unique features of the National Guard

is that Title 32, U.S.Code is a federal statute under which state National Guard organizations are federally recognized

and under which its members receive federal dollars for pay and accrue credit toward a federal retirement. This same fed-

eral statute, Title 32, also provides that while National Guard organizations and members perform duty under Title 32,

they are governed by their individual state laws for disciplinary purposes, and not the federal UCMJ.

_**The National Guard Bureau (NGB)**_

NGB is a joint bureau of the Army and the Air Force within the Department of Defense. Its mission is to serve as a chan-

nel of communication between the DOD departments and the states on matters concerning the ANG and ANGUS as

well as the Army National Guard and Army National Guard of the United States. Since it is a staff agency, the Chief,

NGB, currently an Air Force lieutenant general (this position may be held by an Army lieutenant general as well) has no

command authority. He is on Title 10 orders as a member of the active component for the duration of this appointment.

The Chief, NGB, is assisted in matters concerning the ANG and ANGUS by the Director, Air National Guard, who man-

ages the Air National Guard Directorate.

_**The Air National Guard Directorate**_

The Air National Guard Directorate is part of the joint directorate of the National Guard Bureau with the responsibility

of directing the administration of policy and funding concerning operation of the Air National Guard. Since the ANG is

composed of separate units in the states, the District of Columbia and the territories of Guam, Puerto Rico, and the Vir-

gin Islands, there is no national ANG Title 32 unit or organization. The ANG Directorate is a staff agency. The ANG Di-

rector, currently a major general, has no command authority. He is on Title 10 orders as a member of the active duty Air

Force for the duration of this appointment.

_**The Air National Guard Readiness Center (ANGRC)**_

ANGRC is a Field Operating Agency (FOA) of HQ USAF that executes NGB policy for the ANG and ANGUS and exer-

cises elements of command and control over ANGUS units and members. It is a Title 10 organization with a commander

appointed on G-series orders. The ANGRC commander, currently a brigadier general, also serves as the Deputy Director

of the ANG Directorate and is on Title 10 orders.

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_**Chapter 15, International Operations Law**_

_**Section 15-15 OPCON and ADCON for Deploying Air National Guard Forces**_

_**Page 3**_

_**Overview**_ ****

ANG personnel are members of two separate organizations, ANG and ANGUS, and function in three separate statuses:

citizen, Title 32 (state) and Title 10 (federal). ANG members can only be in one organization and in one status at any

given time.

Removing the words "Title" and "U.S. Code" from the explanation and personifying the numbers may be helpful in suc-

cinctly stating the distinctions between the two military statuses of Guard members and how they interrelate. "When a

32 becomes a 10, s/he ceases to be a 32, and when a 10 becomes a 32, s/he ceases to be a 10. 32s are commanded by 32s

and 10s are commanded by 10s. Neither may command the other except in limited circumstances noted above. 32s are

not governed by the UCMJ, a 10 law, and 10s are not governed by state military laws. When you think, "ANG," think 32.

When you think, "ANGUS," think 10.

**Mobilization and Activation**

There are several ways to bring Title 32 ANG members onto active duty under Title 10. These methods vary based on the

number of people brought onto active duty, the length of the active duty tour and whether entry onto active duty is volun-

tary or involuntary. The method used to bring ANG members onto active duty will depend on the nature of the operation

to be supported (declared war, national emergency, operational augmentation, etc.), and the size of the reserve force

needed. When an ANG member enters active duty under Title 10 he or she is relieved of duty as a member of the ANG. **3**

_**Full Mobilization 4**_

During time of war or national emergency declared by Congress, any unit and any member not assigned to a unit organ-

ized to serve as a unit may be ordered to active duty without their consent for the duration of the war and for six months

thereafter. An unlimited number of members may be ordered to active duty under full mobilization, and they become

members of the regular Air Force.

_**Partial Mobilization 5**_

In a time of national emergency declared by the President, any unit and any member not assigned to a unit organized to

serve as a unit may be ordered to active duty without their consent for up to 24 months. Not more than one million

members may be on active duty at any one time under partial mobilization.

_**Presidential Reserve Call-Up (PRC) 6**_

When the President determines that it is necessary to augment the active duty force for any operational mission, any

unit, any member not assigned to a unit organized to serve as a unit 7 and certain members of the Individual Ready Re-

serve, may be ordered to active duty without their consent for up to 270 days, though the length of the tour could be for

less than this time. Not more than 200,000 members may be on active duty at any one time under a PRC.

_**15-Day Call-Up 8**_

A designated authority of the Secretary of the Air Force may order any unit and any member not assigned to a unit organ-

ized to serve as a unit to active duty without their consent (but with the consent of the governor) for no more than 15

days per year. There is no statutory numerical limit on this provision. It is rarely used and appears to be related to involuntarily ordering a unit or person to active duty to satisfy annual training requirements. This provision would not be use-

ful for staffing AEF deployments, since the current arrangement is for ANG members to serve about 19 days, which pro-

vides for a full 15 days at the deployed location and a travel time of up to 4 days.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 15, International Operations Law**_

_**Section 15-15 OPCON and ADCON for Deploying Air National Guard Forces**_

_**Page 4**_

_**Volunteers 9**_

Any member may be ordered to active duty or retained on active duty with his or her consent and that of the governor or

commanding general in the case of territories and the District of Columbia. There is no statutory limitation on the num-

ber of members who may be serving as volunteers on active duty at any one time. The current arrangement is that all

ANG AEF taskings will be filled by volunteers.

**OPERATIONAL CONTROL (OPCON) AND ADMINISTRATIVE CONTROL (ADCON)10**

The rules concerning ADCON and OPCON apply to all Title 10 active duty personnel except during full mobilization.

ANG members become members of the Air Force when brought onto active duty under full mobilization. The ADCON

and OPCON rules also apply to all types of Title 10 duty short of full mobilization, no matter where it is performed or

the reason for the active duty service. These rules apply to CONUS and OCONUS operational missions, training and ex-

ercises.

OPCON is the authority exercised by a commander over all aspects of military operations necessary to accomplish mis-

sions assigned to the command. It primarily focuses on warfighting tasks and includes: organizing and employing forces

to engage an adversary; assigning tasks and designating military objectives; and developing and executing an overall aero-

space strategy in conjunction with superior commanders. OPCON does not, in and of itself, include authoritative direc-

tion for logistics or matters of administration, discipline, internal organization or unit training. **11** OPCON flows from the National Command Authorities through the CINCs to subordinate warfighting organizations, such as joint task

forces. A commander exercises OPCON over all assigned and temporarily attached forces.

ADCON is the authority exercised over subordinate organizations regarding administration and support. It primarily fo-

cuses on providing the commander exercising OPCON with capable and ready forces with which to fight the war. AD-

CON includes: organization of forces; personnel management; control of resources and logistics; training, readiness, and

mobilization; and discipline. ADCON flows from the National Command Authorities through the Secretary of the Air

Force, Chief of Staff of the Air Force, Major Commands, and Numbered Air Forces to a unit. A commander exercises AD-

CON over all assigned forces, but not over attached forces. For attached forces, ADCON remains with the commander to

whom they are assigned. For example, when forces are assigned to ANGRC but temporarily attached to another unit, AD-

CON remains with ANGRC.

When ANG members enter Title 10 active duty, they are transferred from their ANG units and assigned to the ANGRC,

either directly or to a detachment of the ANGRC created for the purpose of deploying forces in support of an active duty

mission. ANGRC/CC exercises ADCON over all units and members in Title 10 status (except those brought on active

duty through full mobilization) by virtue of the fact that they are assigned to ANGRC. ANGRC/CC makes forces avail-

able to a supported active duty commander by attaching them to the gaining organization within the AOR that will exer-

cise OPCON over them.

The Air Force Doctrine Document (AFDD) 2 provides the blueprint for organizing Air Force forces for operational em-

ployment. AFDD 2 establishes a Commander of Air Force Forces (COMAFFOR) as the principal USAF commander sup-

porting an operational mission. To support the operational mission, the COMAFFOR uses forces assigned to him or her,

such as subordinate wings, and forces that are attached by other USAF organizations. The COMAFFOR can exercise AD-

CON only over assigned forces, not over attached forces.

The NGB and the Air Force jointly developed the concept of "specified ADCON" to include the following elements: desig-

nating specific units for operational use; organizing, training, equipping, and sustaining forces for in-theater missions;

providing force protection; and maintaining discipline. The COMAFFOR exercises specified ADCON over all attached

forces (it is not needed for assigned forces, since the COMAFFOR already exercises ADCON over them).

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 15, International Operations Law**_

_**Section 15-15 OPCON and ADCON for Deploying Air National Guard Forces**_

_**Page 5**_

**UCMJ Authority**

UCMJ authority is a function of command under federal law and the Manual for Courts-Martial. The Uniform Code of

Military Justice (UCMJ) gives the COMAFFOR or any active duty commander within the chain of command the right to

discipline any person serving in Title 10 status. ADCON and specified ADCON do not confer UCMJ authority. Rather,

ADCON and specified ADCON help to identify those commanders who may exercise UCMJ authority as a matter of Air

Force doctrine and policy. This doctrine recognizes that more than one commander may have UCMJ authority over a

member in a given situation.

Command authority for discipline includes UCMJ authority as an element of ADCON, which, for members of an

ANGRC detachment, is within the command authority of ANGRC. **12** Discipline is also an element of specified ADCON,

which is within the command authority of the COMAFFOR. Since disciplinary authority is shared between the command-

ers holding ADCON and specified ADCON, it is frequently a matter of coordination between the two concerning which

one will take disciplinary action. This concept has been codified in AFI 51-202. **13**

ANG units, acting under the authority and direction of ANGRC, issue orders to ANG members to bring them onto active

duty. These orders specify in the "Remarks" section that the member is relieved of duty with his or her ANG unit and

assigned to ANGRC or to a detachment created by ANGRC. For example: "Member is assigned to ANGRC Detachment

16." ANGRC/CC acquires ADCON over the member by virtue of this assignment process for all types of activation and

partial mobilization. **14**

When ANGUS detachments or members deploy in support of a military operation, the gaining MAJCOM will often cre-

ate a specially-designated aerospace expeditionary unit and attach the attachment or members to it. For example: "Mem-

ber is attached to 104 Expeditionary Operations Group." When members deploy OCONUS or CONUS, they or the unit

to which they are assigned must be attached for OPCON to a designated in-theater commander, most often the COMAF-

FOR. The orders specify in the "Remarks" section that the member or unit is attached to the particular theater com-

mander through an active duty unit in the theater. Under AFDD 2, the gaining COMAFFOR acquires specified ADCON

over the ANGUS units and members because they are attached to his or her command. Deployed ANGUS members are

commanded by two individuals: the commander of the unit to which they are assigned, and the commander of the unit

to which they are attached. OPCON applies to assigned and attached forces and resides with the COMAFFOR. ADCON

applies only to assigned forces, and for ANGUS members resides with the ANGRC/CC. Specified ADCON applies only

to attached forces, and resides with the COMAFFOR. Thus, the commander having OPCON also has specified ADCON.

**COMMAND ISSUES RELATED TO ANGUS DEPLOYMENTS**

ANGRC usually creates detachments and assigns ANGUS members to them for deployments that involve 10 or more per-

sons for 15 days or longer. If a deployed group is less than 10 persons, or a deployment will not be for more than 15 days

or does not include an officer, then ANGUS members are attached directly to the 201st Mission Support Squadron

(201MSS), a Title 10 subordinate unit to ANGRC. ADCON and OPCON apply in the same manner to those directly at-

tached to 201MSS as they apply to ANGRC detachments.

When ANGRC creates a detachment, it appoints a commander for the detachment using an AF Form 35. The detach-

ment commander (DETCO) will be the senior ranking officer eligible to command. **15** He or she exercises ADCON over

the members assigned to the detachment.

Since OPCON is exercised by the in-theater commander (usually the COMAFFOR), ANGUS detachments deployed in

support of operations will usually also be given a theater designation to reflect their attachment to the COMAFFOR. ( _See_ example above.) The tasking order will often specify who will command the in-theater unit, such as an Expeditionary Operations Group. The appointment of a commander for the in-theater unit should be accomplished through an AF Form

35 or G-series order, usually issued by or under the authority of the MAJCOM supporting the COMAFFOR. This may be

the ANGRC detachment commander in some situations.

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_**Chapter 15, International Operations Law**_

_**Section 15-15 OPCON and ADCON for Deploying Air National Guard Forces**_

_**Page 6**_

The ANGRC DETCO has ADCON over those attached to the detachment. ANGRC/CC is the DETCO's next superior

commander. If the DETCO is also the commander of the in-theater unit, then he or she also is the channel through

which OPCON and specified ADCON flow from the COMAFFOR. The DETCO thus becomes the focal point for the full

measure of command authority and responsibility. This requires a careful delineation of the command role in which the

DETCO may be acting in a particular situation. This is especially important in matters related to taking disciplinary ac-

tion and the administration of military justice, such as imposing nonjudicial punishment and referring a member to a

court-martial under the UCMJ.

_**If The DETCO Is The In-Theater Unit Commander.**_ An interesting situation illustrating the dual command chain over ANGUS members and its effect on the imposition of discipline is posed for the officer who serves as both DETCO and as

commander of the in-theater unit. If the local commander takes the disciplinary action as the DETCO under his or her

authority of ADCON against the ANGUS member who is both assigned to the ANGRC detachment and attached to the

in-theater unit, then the authorities for appeal of nonjudicial punishment and jurisdiction for convening courts-martial

are through ANGRC in CONUS. If the local commander takes the disciplinary action as the commander of the in-theater

unit, then the authorities for appeal of nonjudicial punishment and jurisdiction for convening courts-martial are through

the COMAFFOR in the theater of operations. This appears to be an unresolved issue that will come up in limited circum-

stances. In such situations, the best approach for the commander on the ground is to coordinate the matter immediately

with both the superior in-theater commander and with ANGRC/CC, since any discipline will be imposed as either

DETCO or in-theater commander, not both.

_**If The DETCO Is Not The In-Theater Unit Commander.**_ This situation is similar to that of the above even if the ANGRC

detachment is not designated as an in-theater unit, but its members are instead attached to another active duty unit or if

the ANGRC DETCO is not designated as commander of an in-theater unit. In this case, the only difference is that the

DETCO and the in-theater commander are two different people. The ANGRC detachment commander retains ADCON

over those assigned to its unit and the in-theater unit commander acquires specified ADCON over these same individu-

als or units who are attached to the in-theater unit. The DETCO and the in-theater unit commander exercise concurrent

UCMJ jurisdiction, and should coordinate the matter immediately with both ANGRC/CC and the superior in-theater

commander, respectively. 16 In the above situation, if it is decided that ANGRC will take the disciplinary action, then it

will be handled by the DETCO or ANGRC. If the COMAFFOR or comparable in-theater commander will take the action,

then it will be handled by the active duty commander. If ANGRC does not create a detachment but instead assigns AN-

GUS members to 201MSS, then 201MSS/CC exercises ADCON and the COMAFFOR exercises OPCON. In such a cir-

cumstance, if it is determined that ANGRC will take the disciplinary action, then it will be handled by 201MSS/CC.

**Home Station Command**

Another matter to consider is command of the home station ANG unit if the ANG commander of that unit deploys. Com-

manders command units. Commanders must be members of the units in order to command them. When an ANG com-

mander enters active duty as a member of the ANGUS, regardless of how long, he or she is transferred from the ANG.

Since the ANG commander is no longer an ANG member or a member of the ANG unit, he or she is no longer eligible to

command the ANG unit. A new commander for the ANG unit must be appointed by The Adjutant General of the state or

Commanding General of the District of Columbia or territory using procedures established by the respective states, the

District of Columbia and territories of Guam, Puerto Rico, and the Virgin Islands. A new ANG unit commander should

be appointed regardless of the length of time the former commander will be on active duty as a member of the ANGUS.

These arrangements should be worked out well in advance of the deployment. The new commander will be appointed

pursuant to applicable state procedures, vice the current commander. When the former unit commander is no longer in

Title 10 status, a new order should be published appointing the commander to his or her former position.

**How Commanders Become Commanders**

Officers become commanders by appointment to command or assumption of command. Appointment to command is

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_**Chapter 15, International Operations Law**_

_**Section 15-15 OPCON and ADCON for Deploying Air National Guard Forces**_

_**Page 7**_

an act by a superior commander. The Adjutant General of each state and Commanding General of each territory and the

District of Columbia have been delegated authority to appoint commanders for Air National Guard units. Commanders

of Major Commands, Numbered Air Forces, and Field Operating Agencies may appoint commanders of subordinate

units. Since ANGRC is a field operating agency of USAF, ANGRC/CC is authorized to appoint commanders of subordi-

nate units under his command, such as 201MSS and ANGRC detachments.

Commanders may be appointed from those senior in grade ( _e.g._ , 0-6) on duty with the organization and eligible to command. They do not need to be the most senior in that grade (time in grade or rank). For example, if two colonels, eligible

to command, are on duty with an organization, the superior commander can appoint the junior ranking colonel as the

unit commander. The superior commander is not required to appoint the most senior colonel eligible to command as

commander. The superior commander may not, however, appoint someone of lower grade to command an organization

in which someone of higher grade eligible to command is assigned. In our example, if there is at least one 0-6 eligible to

command and assigned with the organization, the superior commander may not appoint an 0-5 to command it.

Eligibility to command depends upon the nature of the organization and AFSC of the officer. Flying units, such as wings,

operations groups and operations squadrons, must be commanded by a rated officer. Non-rated officers are ineligible to

command flying units. Medical units may only be commanded by medical personnel, such as members of the Medical

and Dental Corps, Nurse Corps, Medical Services Corps and Biomedical Sciences Corps. Chaplains are ineligible to com-

mand under any circumstances. Judge advocates may command with the approval of the Judge Advocate General, or un-

der emergency field conditions, or if they are the senior ranking member of a group of prisoners of war. **17**

Assumption of command is a unilateral act, rather than one taken by a superior commander. Under assumption of com-

mand, the senior officer in both grade and rank (time in grade), eligible to command, assumes command of the organiza-

tion to which he or she is assigned if the unit does not have an appointed commander. The authority to assume com-

mand is inherent in his or her status as the senior officer in both grade and rank who is eligible to command and who is

assigned to the organization. If the unit has an appointed commander, even a more senior ranking officer may not as-

sume command from the appointed commander. Officers may only assume command of those organizations to which

they are assigned.

Appointment to command is the preferred means of delegating command authority. It is a clear direction from the supe-

rior commander. If a commander gained his or her office through assumption of command, there is the possibility that

an officer of equal grade but senior in rank who is eligible to command may be assigned to the unit, causing confusion

from a legal perspective about which officer has lawful command authority.

**COMMAND OF "REGULAR" ACTIVE DUTY UNITS AND MEMBERS**

_****_ Any active duty organization, preexisting or newly created, to which the Air Force component members are attached, is considered to be a Regular Air Force Unit. Air National Guard officers never command organizations or members of the

Regular Air Force. ANGUS officers on extended active duty (EAD), which is active duty for 90 days or more, can com-

mand organizations and members of the Regular Air Force. **18** ANGUS officers on EAD, if appointed to command a

Regular Air Force Unit, as part of their command authority have disciplinary authority over regular Air force and all

other members attached to their unit under specified ADCON. **19** ANGUS officers not on EAD cannot command organi-

zations or members of the Regular Air Force. **20** Since ANGRC detachments or individual ANGUS members are always

attached to a Regular Air Force Unit in the theater of operations, and many ANGUS officers are non-EAD, there are lim-

ited opportunities for ANGUS officers to command these units. To remedy this situation, especially in the context of an

aerospace expeditionary force, AFI 51-604 is being reviewed for amendment to clarify the authority of non-EAD ANGUS

officers to command Regular Air Force Units.

Whether an officer is considered to be on EAD for this purpose is determined by the length of the tour specified in his or

her individual orders. As long as the orders bringing him or her onto active duty are for a period of 90 days or more, then

_**Air National Guard Commander's Legal Deskbook**_

541

_**Chapter 15, International Operations Law**_

_**Section 15-15 OPCON and ADCON for Deploying Air National Guard Forces**_

_**Page 8**_

he or she is eligible to command under AFI 51-604 as presently written. This eligibility to command starts from the first

day of the active duty period. **21** If the tour of an ANGUS commander originally brought onto active duty should later be shortened to less than 90 days, all command actions he or she may have taken from the first day of command are unaf-fected by the change in length of the individual tour. For example, most ANG members who deployed for Operation Al-

lied Force were called up under a PRC. Their orders brought them onto active duty for 270 days. A number of ANGUS

officers were appointed as commanders. When hostilities concluded, which for most members was less than 90 days af-

ter they had entered active duty, the ANGUS units redeployed to the CONUS and the members returned to ANG status.

All command actions taken by ANGUS commanders during that time were valid, because the officers had originally been

activated for 90 days or more.

**CONCLUSION**

ADCON and OPCON in the deployed environment can be complex matters, especially if the command arrangements are

not well planned and understood in advance. Careful planning and consultation with a judge advocate is critical to the

successful exercise of command authority by and over ANGUS officers, members and units in a deployed environment.

_**KWIK-NOTE: Know the rules regarding OPCON and ADCON before you deploy.**_

_****_

**RELATED TOPICS:**

**SECTION**

Command Succession

2-3

Military Justice Jurisdiction – ANG Members in Title 10 Status

8-2

Status of National Guard Members

11-7

Mobilization of the Air National Guard

20-2

_**________________________________________________________________________________________________________________________________________________**_

1 See Article 1, Section 8, Clause 16 of the US Constitution and Title 32, United States Code.

2 32 USC 104

3 32 USC 325(a).

4 10 USC 12301(a). 5 10 USC 12302(a). 6 10 USC 12304.

5 10 USC 12302(a).

6 10 USC 12304.

7 DOD Directive 1235.10, Activation, Mobilization, and Demobilization of the Ready Reserve, para 4.2, defines a unit as " ...any identified and managed group or detachment of one or more individuals, organized to perform a particular function whether or not such a group is part of a larger group..."

8 10 USC 12301(b).

9 10 USC 12301(d).

10 See generally, Air Force Doctrine Document (AFDD) 2, Organization And Employment Of Aerospace Power, 17 Feb 00. AFDD 2 incorporates and supersedes the "Little Red Book," the genesis of current Air Force operational doctrine.

11 AFDD 2, Organization And Employment Of Aerospace Power, p 140.

12 See Air Force Doctrine Document 1, Air Force Basic Doctrine, pp 65-66. See also OPJAGAF 1997/93

22 July 1997("Examples of administration control are UCMJ[Uniform Code of Military Justice] authority,...")

13 AFI 51-202, In matters of discipline,...coordination...

14 ANGRC/CC does not acquire ADCON over members who enter active duty under full mobilization, since they are gained

directly by the active duty MAJCOMs and not assigned to ANGRC

15 AFI 51-604, Appointment To And Assumption Of Command, contains detailed information about eligibility to command. One significant feature of eligibility to command is that only a rated officer is eligible to command flying units.

16 See Air Force Doctrine Document 1, Air Force Basic Doctrine, pp 65-66. See also OPJAGAF 1997/93, 22 July 1997 ("Examples of administrative control are UCMJ [Uniform Code of Military Justice] authority,...").

17 AFI 51-604, para 4.6

18 AFI 51-604, para 4.6.7.

19 The concept of specified ADCON does not just apply to ARC members. It applies as well as to active duty members who are attached to units other than those to which they are assigned.

20 OPJAGAF 1993/98, 8 Oct 93.

21 OPJAGAF 1998/117, 17 Nov 98.

_**Air National Guard Commander's Legal Deskbook**_

542

_**Chapter 15, International Operations Law**_

_**Section 15-16 Law of Armed Conflict**_

_**Page 1**_

**Law of Armed Conflict**

**Updated by Lieutenant Colonel Nathan W. Kearns, June 2014**

**AUTHORITY:** DoD Directive 2311.01E, _DoD Law of War Program_ (9 May 2006, incorporating Change 1, 15 Nov 2010;

certified current as of 22 Feb 2011); AFPD 51-4, _Compliance with the Law of Armed Conflict_ (4 August 2011); AFI 51-401, _Training and Reporting to Ensure Compliance with the Law of Armed Conflict_ (11 August 2011). _See also_ DoDI 5240.4, _Counterintelligence Investigations_ (2 Feb 2009, incorporating Change 1, effective 15 Oct 2013); DoDI 6055.7, _Mishap Notification, Investigation, Reporting, and Record Keeping_ (6 Jun 2011) (for reporting suspected friendly fire incidents); UN Charter; UN Security Council Resolution 1368 (2001). 

## INTRODUCTION

**** The "Law of Armed Conflict" (LOAC), also known as the "Law of War" (LOW) and "International Humanitarian Law,"

is that part of international law that regulates the conduct of armed hostilities and the circumstances in which states may

use armed force. LOAC encompasses all international law for the conduct of hostilities binding on the U.S. or its individ-

ual citizens, including treaties, international agreements and applicable customary international law. The primary pur-

pose of LOAC is to prevent unnecessary suffering of both combatants and noncombatants, and to minimize damage to

civilian property. By limiting the amount and type of force in hostilities, LOAC also speeds the restoration of peace.

LOAC is an expression, in legal terms, of principles of war such as objective, mass, economy of force, surprise and secu-

rity or restraint and legitimacy.

As to whether to implement hostilities, the international law involved is largely found in the UN Charter, which was de-

veloped for armed conflict between states. However, since 2001, the UN Security Council has repeatedly recognized the

inherent right of states to also used armed force in self-defense against international organized armed terrorist groups

which have committed (or are about to commit) an attack involving a level of violence of an armed attack under UN

Charter Article 51. Regardless of whether the use of armed force by a state in a particular circumstance is prohibited by

international law, the conduct of armed hostilities will be regulated by LOAC.

**RELATION TO RULES OF ENGAGEMENT:**

LOAC is distinct from the "rules of engagement." Rules of engagement (ROE) are guidelines that a state imposes on its

own military forces, while LOAC is binding on all nations and their armed forces. The U.S. Government may change the

ROE and delegate the authority to make changes. International law, on the other hand, can usually be changed only by

international agreement or when a practice becomes so widespread that it is recognized as customary international law.

LOAC is one of several factors that can impact ROE. In their final form, ROE usually reflect political and diplomatic as

well as legal factors. ROE often restrict operations beyond the requirements of the LOAC.

**RESPONSIBILITY:**

The Judge Advocate General ensures the Air Force effectively implements the DoD Law of War Program. Pursuant to AFI

51-401, judge advocates should review all command plans, policies, procedures and operations in the coordination proc-

ess to determine that they meet current U.S. legal obligations under LOAC.

**TRAINING REQUIREMENTS:**

All commanders will ensure that assigned personnel are trained in the principals and rules of LOAC. Training will in-

clude, at a minimum, subjects required by the 1949 Geneva Conventions for the Protection of War Victims and the 1907

Hague Convention IV respecting the Laws and Customs of War on Land.

_**Air National Guard Commander's Legal Deskbook**_

543

_**Chapter 15, International Operations Law**_

_**Section 15-16 Law of Armed Conflict**_

_**Page 2**_

**REPORTING REQUIREMENTS: __**

Members of DoD components must comply with the law of armed conflict during all armed conflicts; however, such con-

flicts are characterized, and in all other military operations. The U.S. obligations under LOAC are also observed by DoD

contractors assigned to or accompanying deployed Armed Forces. All reportable incidents committed by or against U.S.

personnel, enemy persons or any other individual must be reported promptly, investigated thoroughly, and where appro-

priate, remedied by corrective action. The on-scene commanders shall ensure that measures are taken to preserve evi-

dence of reportable incidents pending transfer to appropriate U.S., allied or other authorities.

**Reportable Incidents:** DoDD 2311.01E, Section 3.2 defines a "reportable incident" as a possible, suspected or alleged

violation of the law of war, for which there is credible information, or conduct during military operations other than war

that could constitute a violation of the law of war if it occurred during an armed conflict.

**Who Must Report:** All military and U.S. civilian employees, contractor personnel, and subcontractors assigned to or accompanying DoD components shall report reportable incidents through their chain of command. In instances where it is

unreasonable to report within the chain of command, personnel shall report to the servicing SJA, IG, AFOSI, or to a sis-

ter service counterpart of one of these offices.

**How to Report _:_** Personnel will, when applicable:

1. Preserve physical evidence through limiting access to evidentiary materials and crime scenes;

2. Draw detailed sketches or take photographs documenting the circumstances of the incident;

3. Collect any applicable descriptive notes; and

4. Identify all possible witnesses and victims for later interview by investigators and legal personnel.

AFI 51-401 further requires that, within Air Force channels, each commander and staff agency that receives a report of a

reportable incident (possible, suspected or alleged LOAC violation) must report the facts promptly to the local SJA and

the appropriate investigating agency.

_**KWIK-NOTE: LOAC must be briefed to all personnel. Commanders should know the procedures for how to report a report-**_

_**able incident.**_

**RELATED TOPICS:**

**SECTION**

Asylum & Refugee Requests - Aircraft outside the United States

15-2

Code of Conduct

15-4

Foreign Criminal Jurisdiction

15-8

Status of Forces Agreement (SOFA)

15-14

War and Deployment Planning

15-17

Judge Advocate Support for ANG Units Deploying Overseas

17-5

_**Air National Guard Commander's Legal Deskbook**_

544

_**Chapter 15, International Operations Law**_

_**Section 15-17 War and Deployment Planning – The Judge Advocate Role**_

_**Page 1**_

**War and Deployment Planning – The Judge Advocate Role**

**Updated by Walter D. Phillips, Esq., Colonel Andrew Turley and Lieutenant Colonel Max Wood, July 2001**

**AUTHORITY:** CJCSI 3121.01A, _Standing Rules of Engagement for US Forces_ ; _USAF War and Mobilization Plan_ , Volume I (WMP-1), Annex P. 

## INTRODUCTION

**** During contingency operations and periods of international tension and armed conflict, it is the mission of Air Force and Air National Guard Judge Advocates, supported and aided by their respective Paralegal specialists, to provide advice and

assistance to Commanders at every level of command on a broad range of conflict-intensified legal issues.

Planners require legal advice in their planning. Host nation support agreements, status of forces agreements, overflight

considerations, rules of engagement, compliance with laws of armed conflict, lawful targets, illegal use of weapons, and

many other factors are incorporated into the war planning of most functional areas. All require input for compliance with

existing laws, treaties, and agreements.

**REVIEW OF OPERATIONAL PLANS**

The Judge Advocate must review the entire plan; not just the legal annex.

Get your JA involved in the planning early on. Why?

1. CJCSI 3121.01A states that legal advisors should attend mobilization planning conferences when ROEs and related

topics are discussed, and mobilization planning shall include provision for legal advisors during the exercise.

2. Lawyers are generally fairly intelligent, think logically and keep their mouths shut.

3. Also, JAGs provide comments from a different perspective and their legal training and skills are an integral part of the

planning process.

**OTHER JUDGE ADVOCATE'S DUTIES TO COMMANDERS**

1. Advice to Air Force and Air National Guard commanders on their right to employ force to achieve their objectives dur-

ing periods of armed conflict;

2. Advice to Air Force and Air National Guard commanders with regard to the interpretation and application of JCS, uni-

fied command, and component command rules of engagement (ROE) during all military operations, contingencies, ter-

rorist attacks, or prolonged conflicts outside the territorial jurisdiction of the United States;

3. Advice to Air Force and Air National Guard commanders and assistance in drafting Air Force component ROE;

4. Advice to Air Force and Air National Guard commanders in interpreting the large body of wartime and emergency leg-

islation granting expanded authority to Air Force and Air National Guard commanders during periods of armed conflict;

5. Advice to Air Force and Air National Guard commanders about the implementation of existing international agree-

ments for wartime host nation support, logistical support among allies, operating rights, and status of U.S. forces;

6. Advice to and representation of Air Force and Air National Guard commanders in the negotiation of new international

agreements for wartime host nation support, logistical support among allies, operating rights, and status of U.S. forces;

_**Air National Guard Commander's Legal Deskbook**_

545

_**Chapter 15, International Operations Law**_

_**Section 15-17 War and Deployment Planning – The Judge Advocate Role**_

_**Page 2**_

7. Advice to Air Force and Air National Guard commanders relating to their right to exercise broader UCMJ jurisdiction

over their forces during periods of armed conflict;

8. Advice to Air Force and Air National Guard commanders regarding provisions of the UCMJ expanding the jurisdiction

of court-martial to encompass civilians accompanying the armed forces in the field;

9. Liaison with host nation authorities in order to maximize criminal jurisdiction by Air Force and Air National Guard

commanders over U.S. Forces during periods of armed conflict;

10. Expeditious prosecution of criminal charges against individual service members in order to achieve and maintain the

high level of good order and discipline necessary to effectively accomplish the Air Force and Air National Guard com-

mander's primary mission;

11. Expeditious processing of claims of conscientious objector status in order to achieve and maintain the high level of

good order and discipline necessary to effectively accomplish the Air Force and Air National Guard commander's primary

mission;

12. Advice to Air Force and Air National Guard commanders and adjudication of claims against the United States for

damage caused by combat and noncombat activities associated with the arrival, employment and re-deployment of U.S.

forces;

13. Advice to Air Force and Air National Guard commanders and support regarding wartime acquisition and transfer of

supplies and war material, including such issues as emergency procurement, emergency leasing, and extraordinary requi-

sition of supplies;

14. Advice to Air Force and Air National Guard commanders and assistance in the implementation of Air Force Noncom-

batant Evacuation Order (NEO) plans, including, but not limited to, providing legal assistance to evacuees, acquisition of

transportation, feeding and billeting services, and negotiating safe havens in third countries.

15. Advice to deploying military personnel on legal assistance matters including, but not limited to, preparation of wills

and powers of attorney;

16. Advice to Air Force and Air National Guard commanders regarding limitations on use of armed force, the use of

weapons, and the protection of civilians, the sick and wounded, enemy prisoners of war and other protected persons

found in international law;

17. Advice to Air Force and Air National Guard commanders on the identification and reporting of possible violations of

the Law of Armed Conflict (LOAC);

18. Coordination of Air Force Office of Special Investigations (AFOSI) investigations of possible violations of the LOAC;

19. Advice and support to Air Force and Air National Guard commanders on matters relating to the handling, billeting,

feeding, and care of enemy prisoners of war (POWs);

20. Assistance to Air Force and Air National Guard commanders in covering tribunals under Article 5 of the Geneva Con-

vention Relating to the Treatment of Prisoners of War (POW) for the determination of captives' entitlement to POW

treatment;

21. Advice to Air Force and Air National Guard commanders regarding transfer of POWs to US Army elements and/or

host nation forces;

_**Air National Guard Commander's Legal Deskbook**_

546

_**Chapter 15, International Operations Law**_

_**Section 15-17 War and Deployment Planning – The Judge Advocate Role**_

_**Page 3**_

22. Representation of Air Force and Air National Guard commanders in liaison with visiting inspection and enforcement

officials of the International Committee of the Red Cross (ICRC);

23. Advice and assistance to Air Force and Air National Guard commanders in establishing communications with hostile

forces to permit negotiation of protected status for aeromedical evacuation aircraft;

24. Assistance to Air Force and Air National Guard commanders in processing requests by foreign nationals for political

asylum during periods of international tension and armed conflict;

25. Advice to Air Force and Air National Guard commanders regarding the disposition of enemy defectors during period

of armed conflict;

26. Advice to Air Force and Air National Guard commanders regarding requests by foreign nationals for temporary ref-

uge during periods of international tension and armed conflict;

27. Advice and assistance to Air Force and Air National Guard commanders in planning and conducting civil affairs opera-

tions during contingency operations and periods of armed conflict;

28. Identification of Judge Advocate and paralegal specialist manpower assets and requirements, and reallocation of as-

sets as required to support Air Force and Air National Guard commanders; and

29. Such other duties as may be warranted or directed in support of the Air Force and Air National Guard commanders'

accomplishment of their primary mission.

_**KWIK-NOTE. The above listed duties are just some of the ways JAGs can assist their commanders in war and deployment**_

_**planning.**_

**RELATED TOPICS:**

**SECTION**

Civil Affairs

15-6

Host Nation Support – Peacetime and Wartime (NATO)

15-10

Interrelationship of U.S. Civil and Military Agencies – the U.S. Country Team

15-11

_**Air National Guard Commander's Legal Deskbook**_

547

_**Chapter 15, International Operations Law**_

_**Section 15-18 Loan of ANG Officers and Noncommissioned Officers to Allies**_

_**Page 1**_

**Loan of ANG Officers and Noncommissioned Officers to Allies**

**Updated by Walter D. Phillips, Esq., Colonel Andrew Turley and Lieutenant Colonel Max Wood, July 2001**

**AUTHORITY:** 8 U.S.C. 1481; OpJAGAF 1985/26, _Loan of ANG Weapon System Operators to the RAF_ (27 Mar 85). 

## INTRODUCTION

**** Occasionally the air forces of allied nations want to borrow personnel from ANG units to operate with the allied nation's forces. The ANG members who will be on loan often raise concerns about the effect on their United States citizenship

from serving in the military of another nation, especially if that service includes engaging in hostilities on behalf of the ally. Generally, a United States citizen may only lose citizenship by a voluntary act which demonstrates the giving up of

American nationality in favor of allegiance to some foreign state. Congress has, by statute, listed categories of acts which show a shift in allegiance and therefore will result in the loss of United States nationality. One of the acts listed is entering or serving in the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such person served as a commissioned or noncommissioned officer. 8 U.S.C. 1481(a)(3). ****

**EFFECT ON U.S. CITIZENSHIP**

In the unlikely event that the allied nation engaged in hostilities against the United States, the alliance would no doubt

be at an end. In any case, the ANG members on loan would be bound not to participate, and to return to the United

States, if able. Loss of citizenship would be a real possibility for members who did otherwise.

Acceptance of a commission, or of status as a noncommissioned officer, would also risk the loss of United States national-

ity. However, service with an allied force need not, and normally does not, involve commissioning by the ally or an oath

of allegiance. Members on loan would imply be fulfilling their duty to the United States Air Force, assigned to the allied

force.

ANG members who are on loan to an ally should not be deemed to have "entered or served in" that ally's armed forces

for potential loss of citizenship purposes. If the Secretary of State and Secretary of Defense specifically authorize such

service in writing, the member is fully protected. Before such duty is performed, such authorization should be obtained.

Duty would be performed in a Title 10 status and the member's conduct and tour would be governed by the Air Force

and its regulations.

The subject matter of this topic should not be confused with ANG units participating in joint exercises with foreign pow-

ers.

_**KWIK-NOTE: Before ANG members will be "loaned" to foreign countries for service in their armed forces, there will likely**_

_**be approvals required by the state Adjutant General, NGB, the gaining MAJCOM, HQ USAF, the Secretary of the Air Force**_

_**and the Secretaries of State and Defense.**_

**RELATED TOPICS:**

**SECTION**

Active Duty – Air National Guard Members

11-2

Citizenship

23-7

Host Nation Support – Peacetime and Wartime (NATO)

15-10

Training Outside the United States

26-3

_**Air National Guard Commander's Legal Deskbook**_

548

_**Chapter 15, International Operations Law**_

_**Section 15-19 Enemy Prisoners of War and Detainees**_

_**Page 1**_

**Enemy Prisoners of War and Detainees**

**Updated by Lieutenant Colonel Nathan W. Kearns, June 2014**

**AUTHORITY:** DoD Directive 2311.01E, _DoD Law of War Program_ (9 May 2006, incorporating Change 1, 15 Nov 2010;

certified current as of 22 Feb 2011); AFI 31-304 (Interservice) _Enemy Prisoners of War, Retained Personnel, Civilian Internees_ _and Other Detainees_ (1 Oct 97, certified current 22 Nov 2010). _See_ AR 190-8; the Detainee Treatment Act of 2005; and various Geneva Conventions.

The Secretary of the U.S. Army is designated as the Department of Defense (DoD) executive agent responsible for enemy

prisoner of war (EPW) and DoD detainee operations policy. The policy applies to detainees, which include enemy prison-

ers of war (EPW), enemy combatants (EC), including both lawful enemy combatants (LEC) and unlawful enemy combat-

ants (UEC), retained personnel (RP) and civilian internees (CI).

The U.S. Air Force is responsible for detainees that are under its control until they are transferred to detainee collection points, holding areas or other detention locations operated by DoD components. All detainees without regard to a detainee's legal status, will be given humanitarian care and treatment and will be provided the relevant protections of the

Geneva Conventions until their status is determined by a competent authority. Therefore, captured and retained person-

nel should be referred to as detainees.

**General Protection Policies**

Some of the general U.S. policies relative to the treatment of detainees are the following:

Detainees will be given humanitarian care and treatment from the moment they fall into the hands of U.S. forces until

final release or repatriation;

All persons taken into custody will be provided with the protections of the Geneva Conventions until some other legal

status is determined by competent authority;

The punishment of detainees known to have, or suspected of having, committed serious offenses will be administered

IAW due process pursuant to the Geneva Conventions, UCMJ, and Manual for Courts Martial;

The inhumane treatment of detainees is prohibited and is not justified by the stress of combat or with deep provocation.

Inhumane treatment is a serious and punishable violation under international law and the UCMJ;

The following acts are prohibited: murder, torture, corporal punishment, mutilation, the taking of hostages, sensory dep-

rivation, collective punishments, execution without trial by proper authority, and all cruel and degrading treatment;

Detainees will be protected from all threats or acts of violence;

Photographing, filming, and video taping of individual detainees for other than internal internment facility administra-

tion or intelligence/counterintelligence purposes is strictly prohibited;

Detainees will enjoy latitude in the exercise of their religious practices.

**Initial Actions Upon Capture**

**** The commanding officer of the capturing unit will ensure that:

All detainees are protected, safeguarded, and accounted for IAW AFI 31-304(I)/AR 190-8; ****

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Each detainee will be searched immediately after capture. Use males to search males and females to search females,

when possible;

Weapons, ammunition, equipment and documents with intelligence value will be confiscated and turned over to the near-

est intelligence unit;

Propaganda and other PSYOP materials will be confiscated, identified by detainee name and turned over to supporting

EPW/CI PSYOP unit through intelligence channels;

Currency will only be confiscated on the order of a commissioned officer and will be receipted by using DA Form 4137

(Evidence/Property Custody Document);

Detainees are allowed to retain personal effects such as jewelry, helmets, canteens, protective mask and chemical protec-

tive garments, clothing, ID cards and tags, badges of rank and nationality, and Red Cross brassards, articles having per-

sonal, sentimental or religious value, and items used for eating except knives and forks;

All detainees will, at the time of capture, be tagged using DD Form 2745. They will be searched for concealed weapons

and items of intelligence;

Capturing units must provide the date of capture, location of capture (grid coordinates), capturing unit, and any special

circumstances of the capture (how the detainee was captured);

Detainees may be interrogated in the combat zone;

Detainees will be humanely evacuated from the combat zone and into appropriate channels quickly;

Detainees will not be located next to obvious targets such as munition sites, fuel facilities, or communications equip-

ment. ****

Consistent with the Detainee Treatment Act of 2005, no individual in the custody of or under the physical control of the

U.S. government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treat-

ment.

All persons shall report allegations of criminal acts or war crimes committed by or against detainees to the supporting

element of the U.S. Army Criminal Investigation Command (USACIDC). ****

_**KWIK-NOTE: Anyone captured and detained by Air Force units shall be given humanitarian care and treatment and pro-**_

_**vided the protections of the Geneva Conventions until transferred to competent authorities. Their status may only be deter-**_

_**mined by competent authorities.**_ ****

_****_

**RELATED TOPICS:**

**SECTION**

Law of Armed Conflict

15-16

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**Rules of Engagement**

**Updated by Captain Christopher A. Porco, December 2014**

**AUTHORITY:** CJCSI 3121.01B, _Standing Rules of Engagement/Standing Rules for the Use of Force for U.S. Forces_ (13 Jun 2005); Army Operational Law Handbook 2013; Army Domestic Operational Law (DOPLAW) Handbook for Judge Advocates

2013; HQ USAF/JAO Website; DoD Directive 5210.56, _Carrying of Firearms and the Use of Force by DoD Personnel Engaged in_

_Security, Law and Order, or Counterintelligence Activities_ (1 Apr 2011); AFI 31-117, _Arming and Use of Force by Air Force Personnel_ (29 Jun 2012); Joint Publication 1-02, _Department of Defense Dictionary of Military and Associated Terms_ (15 Jan 2014). 

## INTRODUCTION

**** Rules of engagement (ROE) are the primary tools for regulating the use of force. The legal factors that provide the foundation for ROE include customary and conventional law principles regarding the right of self-defense and the laws of

war. However, they do not stand alone; non-legal issues, such as political objectives and military mission limitations, also are essential to the construction and application of ROE. As a result of this multi-disciplinary reach, judge advocates

(JAGs) participate significantly in the preparation, dissemination, and training of ROE.

To ensure that ROE are versatile, understandable, easily executable, and legally and tactically sound, JAGs and operators

alike must understand the full breadth of policy, legal, and mission concerns that the ROE embrace, and collaborate

closely in their development, training, and implementation. JAGs must become familiar with mission and operational

concepts including force and weapons systems capabilities and constraints. Operators must familiarize themselves with

the international and domestic legal limitations on the use of force and the laws of armed conflict.

This chapter will provide an overview of basic ROE concepts, survey the standing rules of engagement (SROE), and re-

view the JAG's role in the ROE process. The appendices to the Rules of Engagement chapter in the Army Operational

Law Handbook provide an unclassified extract of the SROE and sample ROE pocket cards.

**NOTE:** The SROE are classified SECRET and important concepts within it may not be reproduced here. The operational

lawyer should ensure that he or she has ready access to the CJCS SROE publication. Once gaining that access, the opera-

tional lawyer should read it from cover to cover until he or she knows it.

**OVERVIEW**

**Definition of ROE:** Joint Publication 1-02, _Department of Defense Dictionary of Military and Associated Terms_ , defines ROE as

"directives issued by competent military authority that delineate the circumstances and limitations under which U.S. [na-

val, ground, and air] forces will initiate and/or continue combat engagement with other forces encountered."

**Functions of ROE:** As a practical matter, ROE perform three functions: (1) provide guidance from the President and Secretary of Defense (SecDef) as well as subordinate commanders, to deployed units on the use of force; (2) act as a control

mechanism for the transition from peacetime to combat operations (war); and (3) provide a mechanism to facilitate plan-

ning. ROE provide a framework that encompasses national policy goals, mission requirements, and the rule of law.

**General Purposes of ROE:**

1. _**Political Purposes**_. ROE ensure that national policies and objectives are reflected in the actions of commanders in the field, particularly under circumstances in which communication with higher authority is not possible. For example, in

reflecting national political and diplomatic purposes, ROE may restrict the engagement of certain targets or the use of

particular weapons systems. Falling within the array of political concerns are such issues as the influence of international public opinion (particularly how it is affected by media coverage of a specific operation), the effect of host country laws, and the content of Status of Forces Agreements (SOFA) with the U.S.

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2. _**Military Purposes**_. ROE provide parameters within which the commander must operate to accomplish his or her assigned mission. ROE provide a ceiling on operations and ensure that U.S. actions do not trigger undesired escalation, _i.e._ , forcing a potential opponent into a "self-defense" response. ROE may regulate a commander's capability to influence a

military action by granting or withholding the authority to use particular weapons systems, or by vesting or restricting

authority to use certain types of weapons or tactics. ROE may also re-emphasize the scope of a mission.

3. _**Legal Purposes**_. ROE provide restraints on a commander's actions, consistent with both domestic and international law and may impose greater restrictions than those required by law. For many missions, particularly peace operations,

the mission is stated in a document such as a UN Security Council Resolution (UNSCR), ( _e.g._ , UNSCR 940 in Haiti or

UNSCR 1031 in Bosnia). These Security Council Resolutions also detail the scope of force authorized to accomplish the

purpose stated therein. Mission limits or constraints may also be contained in mission warning or execute orders.

**CJCS STANDING RULES OF ENGAGEMENT (CJCS SROE)**

_**Overview**_ **:** The 2005 CJCS SROE provide implementation guidance on the inherent right of self-defense and the application of force for mission accomplishment. They are designed to provide a common template for development and imple-

mentation of ROE for the full range of operations - from peace to war.

_**Applicability**_ **:** Outside U.S. territory, the CJCS SROE apply to all military operations and contingencies. Within U.S. territory, the CJCS SROE apply to air and maritime homeland defense missions. Included in the 2005 CJCS SROE are stand-

ing rules for the use of force (SRUF), which apply to civil support missions as well as land homeland defense missions

within U.S. territory and DoD personnel performing law enforcement functions at all DoD installations. The SRUF can-

cels the domestic civil disturbance ROE found in Operation Garden Plot.

_**Responsibility**_ **:** The SecDef approves the SROE and may issue theater, mission, or operation-specific ROE through the Joint Staff. The J3 is responsible for SROE maintenance. Subordinate commanders are free to issue theater, mission, or

operation-specific ROE.

**CJCS SROE are divided as follows:**

1. _**Enclosure A (Standing Rules of Engagement)**_. This unclassified enclosure details the general purpose, intent, and scope of the SROE, emphasizing a commander's right and obligation to use force in self-defense. Critical principles (such as:

unit, individual, national, and collective self-defense; hostile act and hostile intent; and the determination to declare

forces hostile) are addressed as foundational elements of all ROE. NOTE: The unclassified portion of the CJCS SROE,

including Enclosure A without its appendices, is reprinted in the _Army Operations Law Handbook_.

2. _**Enclosures B-H**_. These classified enclosures provide general guidance on specific types of operations: Maritime, Air, Land, Space, Information, and Noncombatant Evacuation Operations, and Counterdrug Support Operations Outside U.S.

3. _**Enclosure I (Supplemental Measures)**_. Supplemental measures found in this enclosure enable a commander to obtain or grant those additional authorities necessary to accomplish an assigned mission. Tables of supplemental measures are divided as follows: actions requiring President or Secretary of Defense approval; actions requiring either President or Secre-

tary of Defense approval or combatant commander approval; and actions that are delegated to subordinate commanders

(though the delegation may be withheld by higher authority).

Supplemental measures that are reserved to the President or SecDef or combatant commander are generally restrictive;

that is, the President, SecDef or combatant commander must specifically permit the use of a particular operation, tactic,

or weapon before a field commander may use it. Supplemental measures delegated to subordinate commanders are all

permissive in nature; that is, they allow a commander to use any weapon or tactic available and to employ reasonable

force to accomplish his or her mission, without having to get permission first. Supplemental measure request and

authorization formats are contained in Appendix F to Enclosure I.

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_**NOTE: SUPPLEMENTAL ROE RELATE TO MISSION ACCOMPLISHMENT, NOT TO SELF-DEFENSE, AND NEVER**_

_**LIMIT A COMMANDER'S INHERENT RIGHT AND OBLIGATION OF SELF-DEFENSE.**_

4. _**Enclosure J (Rules of Engagement Process)**_. The current, unclassified enclosure provides guidelines for incorporating ROE development into military planning processes and introducing the ROE Planning Cell. The JAG is designated as the

"principal assistant" to the J3 or J5 in developing and integrating ROE into operational planning.

5. _**Combatant commanders' Theater-Specific ROE**_. The CJCS SROE no longer provide a separate enclosure for specific ROE submitted by combatant commanders for use within their area of responsibility (AOR). Combatant commanders

may augment the SROE as necessary by implementing supplemental measures or by submitting supplemental measures

for approval, as appropriate. Theater-specific ROE documents can be found on the combatant command's SIPR website.

Check with the combatant commander's SJA for guidance on theater-specific ROE.

6. _**Enclosures L-Q (SRUF)**_. Like Enclosure A, Enclosure L sets out the basic self-defense posture under the SRUF. Enclosures M-O provide classified guidance on Maritime Operations Within U.S. Territory, Land Contingency and Security-

Related Operations Within U.S. Territory, and Counterdrug Support Operations Within U.S. Territory. Enclosures P and

Q provide a message process for SRUF, as well as SRUF references.

**Key Definitions and Concepts: __** The SROE and SRUF adopt the definitions in Joint Publication 1-02 along with the definitions in Enclosures to the SROE.

1. _**Self-Defense**_. Unit commanders always retain the inherent right and obligation to exercise unit self-defense in response to a hostile act or demonstrated hostile intent. Unless otherwise directed by a unit commander as detailed below, military members may exercise individual self-defense in response to a hostile act or demonstrated hostile intent. When indi-

viduals are assigned and acting as part of a unit, individual self-defense should be considered a subset of unit self-

defense. As such, unit commanders may limit individual self-defense by members of their unit. Both unit and individual

self-defense include defense of other U.S. Forces in the vicinity.

2. _**National Self-Defense**_. The act of defending the United States, U.S. Forces, and, in certain circumstances, U.S. citizens and their property, and U.S. commercial assets from a hostile act, in response to demonstrated hostile intent or a declared hostile force.

3. _**Collective Self-Defense**_. The act of defending designated non-U.S. citizens, forces, property and interests from a hostile act or demonstrated hostile intent. Only the President or SecDef may authorize the exercise of collective self-defense.

Collective self-defense is generally implemented during combined operations.

4. _**Mission Accomplishment v. Self-Defense**_. The SROE distinguish between the right and obligation of self-defense, and the use of force for the accomplishment of an assigned mission. Authority to use force in mission accomplishment may

be limited in light of political, military, or legal concerns, but such limitations have no impact on a commander's right

and obligation of self-defense. Further, although commanders may limit individual self-defense, commanders will always

retain the inherent right and obligation to exercise unit self-defense.

5. _**Declared Hostile Force**_. Any civilian, paramilitary or military force, or terrorist that has been declared hostile by appropriate U.S. authority. Once a force is declared "hostile," U.S. units may engage it without observing a hostile act or dem-

onstration of hostile intent (i.e., the basis for engagement shifts from conduct to status). Since the authority to declare a force hostile is limited, the SROE should be consulted accordingly.

6. _**Hostile Act**_. An attack or other use of force against the United States, U.S. Forces, or other designated persons or property. It also includes force used directly to preclude or impede the mission and/or duties of U.S. Forces, including the re-

covery of U.S. personnel or vital U.S. government property.

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7. _**Hostile Intent**_. The threat of imminent use of force against the United States, U.S. Forces, or other designated persons or property. It also includes the threat of force to preclude or impede the mission and/or duties of U.S. Forces, including

the recovery of U.S. personnel or vital U.S. government property.

8. _**Imminent Use of Force**_. The determination of whether the use of force against U.S. Forces is imminent will be based on an assessment of all facts and circumstances known to U.S. Forces at the time and may be made at any level. Imminent

does not necessarily mean immediate or instantaneous.

**MULTINATIONAL ROE**

U.S. Forces will often conduct operations or exercises in a multinational environment. Multinational force ROE will ap-

ply for mission accomplishment only if authorized by order of the SecDef. If not so authorized, the CJCS SROE apply. If

there are inconsistencies between the right of self-defense contained in U.S. ROE and multinational force ROE, U.S.

Forces will continue to operate under U.S. ROE until the inconsistency is resolved through the U.S. chain of command.

In all cases, U.S. Forces retain the inherent right and obligation to exercise unit self-defense in response to a hostile act or demonstrated hostile intent.

Functioning within multinational ROE can present specific legal challenges. Each nation's understanding of what trig-

gers the right to self-defense is often different, and will be applied differently across the multinational force. Each nation will have different perspectives on the law of war and each nation is ultimately bound by its own domestic law and policy. With or without a multinational ROE, JAGs must proactively coordinate with allied militaries to minimize the im-

pact of differing ROE.

The U.S. currently has combined ROE (CROE) with a number of nations and is continuing to work on CROE with addi-

tional nations. Some CROE may apply to all operations and others only to exercises.

The United Nations, Department of Peacekeeping Operations, issued _Guidelines for the Development of Rules of Engagement_

_(ROE) for United Nations Peacekeeping Operations_ , which provide the parameters for the use of force by military personnel assigned to United Nations Peacekeeping Operations.

_**ARMING AND USE OF FORCE FOR PERSONNEL PERFORMING LAW ENFORCEMENT AND SECURITY DUTIES**_

DoD Directive 5210.56, _Carrying of Firearms and the Use of Force by DoD Personnel Engaged in Security, Law and Order, or Counterintelligence Activities_ (1 Apr 2011) and AFI 31-117, _Arming and Use of Force by Air Force Personnel_ (1 Sep 1999) cover the arming and use of force by DoD and AF law enforcement and security personnel. These references **do not** apply to personnel engaged in military operations and subject to authorized rules of engagement or to personnel assigned duties in a combat zone in time of war, or a designated hostile fire area when ROE apply.

**ROLE OF THE JUDGE ADVOCATE __**

JAGs at all levels play an important role in the ROE process. There are four major tasks with which the JAG will be con-

fronted:

1. _**Determining the Current ROE**_ : JAGs in operational units will typically be tasked with briefing the ROE to the commander during the daily operational brief (at least during the first few days of the operation). In preparing this brief, the JAG will want to consult: the SROE related to self-defense; the enclosures of the SROE that deal with the type of operation ( _e.g._ , Maritime, Space, or Counterdrug operations); the combatant commander's special ROE for his or her AOR;

the baseline ROE for the particular mission as provided in the OPLAN, as promulgated by separate message or as it ex-

ists for a particular mission ( _e.g._ , the OIF ROE as promulgated by Multi-National Corps – Iraq (MNC-I)); any additional ROE promulgated as the operation evolves or changes, or in response to requests for additional ROE; operational commanders' intentions; and mission objectives.

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During the first few days of an operation, the ROE may be quite fluid. JAGs should ensure that any ROE message is

brought to his or her immediate attention. JAGs should periodically review the message traffic to ensure that no ROE

messages were missed, and should maintain close contact with higher level JAGs who will be able to advise that ROE

changes were made or are on the way. JAGs should adhere to the rules for serializing ROE messages (Appendix F to En-

closure J of the CJCS SROE).

2. _**Requesting Supplemental ROE**_ **:** Commanders must look to their mission tasking and existing ROE when determining whether to request supplemental ROE. The commander may decide the existing ROE are unclear, too restrictive or otherwise unsuitable for the particular mission. The drafting of a supplemental ROE request message will often be tasked to

the JAG and can only be accomplished with extensive command and operator input. The "ROE Planning Cell," consisting

of representatives from all sections of the command, including the JAG, is ideal for the task of drafting an ROE request.

Be especially careful about requesting supplemental measures that require President or SecDef approval, as these items

already have received significant consideration.

Justify why the supplemental measure is needed. As noted above, those at higher headquarters who have reviewed the

ROE reasonably believe that they have provided the most suitable rules. It is your job to prove otherwise. For example,

your unit may have a mission that earlier ROE planners could not have foreseen, and that the ROE do not quite fit.

It is not necessary to request authority to use every weapon and tactic available at the unit level; higher headquarters will restrict their use by an appropriate supplemental measure if that is thought to be necessary.

Maintain close contact with JAGs at higher headquarters levels. ROE change requests rise through the chain of command

until they reach the appropriate approval authority, but that intermediate commands may disapprove the request.

Follow the message format in accordance with (IAW) Appendix F to Enclosure I. Although it may seem like form over

substance, a properly formatted message indicates to those reviewing it up the chain of command that your command

(and you) knows the ROE change request process.

3. _**Disseminating ROE to Subordinate Units**_ **:** JAGs must determine the applicable ROE and broadcast them to all subordinate units. Joint Staff ROE, reflecting the guidance of the President or SecDef, are generally addressed to the combatant

commander. The supported combatant commander takes those President/SecDef-approved measures, adds appropriate

supplemental measures from the group the combatant commander may approve, and addresses these ROE to his or her

subordinate commanders or to a subordinate JTF, as applicable. The subordinate commander/JTF commander will take

the President/SecDef and combatant commander-approved ROE, add any of his or her own, and distribute this ROE mes-

sage throughout the rest of the force. NOTE: combatant commanders or other commanders sometimes place restrictions

on the ability of subordinate commanders to modify, change, or restrict ROE at lower levels.

4. _**Training ROE**_ **:** Once the mission-specific ROE are received, the question becomes: "How can I as a JAG help to ensure that the troops understand the ROE and are able to apply the rules reflected in the ROE?" The commander is responsible

for training on the ROE. A JAG's first task may be to help the commander see the value in organized ROE training. Real-

istic, rigorous scenario- or vignette-driven training exercises have been much more effective than classroom instruction.

Individuals should be able to articulate the meaning of the terms "declared hostile force," "hostile act," "hostile intent,"

and other key ROE principles. Situational training can be used to help recognize hostile acts and hostile intent, and the

appropriate level of force to apply in response.

**POCKET CARDS**

ROE pocket cards are a summary or extract of mission-specific ROE. They should be developed as a clear, concise

and UNCLASSIFIED distillation of the ROE, and serve as both a training and memory tool. ROE CARDS ARE NOT A

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SUBSTITUTE FOR ACTUAL KNOWLEDGE OF THE ROE. ROE cards are a particularly useful tool when they conform

to certain parameters:

Maintain brevity and clarity. Use short sentences and words found in the common vocabulary.

Avoid qualified language. ROE are directives, advising subordinates of the commander's desires and mission plan.

Tailor the cards to the audience. ROE cards are intended for the widest distribution possible.

Keep the ROE card mission-specific. Items which normally should be on the ROE card include: (1) any forces declared

hostile; (2) any persons or property that should or may be protected with up to deadly force; and (3) detention issues,

including circumstances authorizing detention and the procedures to follow once someone is detained. Be aware, how-

ever, that such information may be classified and should therefore not be included in the ROE card.

Anticipate ROE changes. If the ROE change during an operation, change the color of the card stock used to produce the

new ROE card (and collect the old ones and destroy them) or ensure every card produced has an "as of" date on it.

_**KWIK-NOTE: Deployed JAGs must ensure they are intimately familiar with the applicable ROE and mission requirements,**_

_**and must be prepared to give advice and provide training.**_

**RELATED TOPICS:**

**SECTION**

Judge Advocate Support for ANG Units Deploying Overseas

17-5

Law of Armed Conflict

15-16

Status of Forces Agreement (SOFA)

15-14

War and Deployment Planning

15-17

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_**Page 1**_

**Cyberlaw and Cyberspace Military Operations**

**By Major Jeff Coats, January 2013**

**AUTHORITY:** National Military Strategy for Cyberspace Operations (NMS-CO), (11 Dec 2006); JP 1-02, _Department of_

_Defense Dictionary of Military and Associated Terms_ , (8 Nov 2010, as amended through 15 Aug 12); JP 3-13, _Information Operations_ , (13 Feb 2006); JP 6-0, _Joint Communications Systems_ , (10 Jun 2010); AFDD 3-12, _Cyberspace Operations_ , Incorporating Change 1, (30 Nov 11); AFI 33-200, _Information Assurance (IA) Management_ , (23 Dec 2008, Incorporating through Change 2, 15 Oct 2010); AFI 33-101, _Commander's Guidance and Responsibilities_ , (18 Nov 08, Incorporating Change 1, 21 Jul 2011); AFI 51-402, _Legal Review of Weapons and Cyber Capabilities_ , (27 Jul 2011). 

## INTRODUCTION

**** There are two primary areas of concern for Cyber-legal issues a commander might encounter. The first concern is criminal activity; the second is military operations in the cyberspace domain. When criminal activity in cyberspace arises on a

military computer ( _i.e._ , child pornography or other criminal activity) a member has no expectation of privacy using government computers (1). Security Forces, OSI and/or civilian law enforcement should be contacted immediately to pre-

serve "cyber-evidence." That's the easy one. Cyberspace Military Operations is more complex.

**BACKGROUND**

Cyberspace is a domain (2). Cyberspace operations are not synonymous with information operations (IO) with which

you may be familiar. IO is a set of operations that can be performed in cyberspace and other domains and is not ad-

dressed by this Chapter. Operations in cyberspace can directly support IO and non-cyber based IO can affect cyberspace

operations (3).

In the past few years much has been done in this area. Besides endorsing a national definition of cyberspace as a domain,

the Air Force stood up 24th Air Force under AFSPC. The AFSPC commander "owns" the AFNET or the Air Force por-

tion of the domain (4). Owning something requires operating, equipping, training personnel, and conducting mainte-

nance, including security. Even though AFSPC/CC "owns" the AFNET, every user has duties and responsibilities when

using ANG and Air Force Information Systems (IS). Some situations require the operation of a unique domain, such as

AFCENT. Under those circumstances the "owner" of that domain is the AFCENT/CC. Either way, regulations describe

responsibilities for everyone from the individual user through and past the commander of the 24th Air Force who has

been delegated operational control.

Cyberspace Military Operations include three primary areas: Computer Network Defense (CND), Computer Network

Exploitation (CNE)(5), and Computer Network Attack (CNA)(6). Each area is under the broader category of Computer

Network Operations (CNO)(7). These three areas are morphing into Defensive Cyber Operations (DCO), Offensive Cy-

ber Operations (OCO) and Defensive Counter Cyberspace Operations (DCCO) which provide for transition from one

aspect to the next. Unless a unit's mission specifically pertains to cyber operations, a unit commander would mainly be

concerned with CND, ensuring members have proper training, awareness and policy guidance.

**COMPUTER NETWORK DEFENSE (CND)**

CND is further defined as "actions taken to protect, monitor, analyze, detect, and respond to unauthorized activity

within DOD information systems and computer networks."(8) Individuals at all levels have Information Assurance re-

quirements and must be trained and be vigilant when using all Air Force Information Systems (9). Commanders have

specific roles and responsibilities. A commander must do the following (10):

Assign an Information Assurance Officer (IAO);

****

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Execute Information Management (IM) responsibilities and control of all information resources under their purview;

Follow all IA Programs including COMPUSEC, COMSEC, EMSEC, Identity Management Program, and IA Notice and

Consent;

Establish IT Management Systems to ensure appropriate and effective use of IT resources and availability;

Manage records IAW Privacy Act, FOIA, Retention and Destruction policies.

**CYBER MISSIONS**

Cyber missions, those CND, CNE and CNA activities proscribed through USSTRATCOM, CYBERCOM, AFSPC and

24th AF, require close scrutiny. Special Rules of Engagement and/or Rules for the Use of Force (domestically) are fol-

lowed and activities are carried out by highly specialized ANG members using highly specialized weapon systems. (11)

The cyber weapons systems are subject to weapon systems reviews (12) and employ software tools that are used commer-

cially and those specially developed by Air Force cyber airmen and contractors.

ANG cyber activities at this point are restricted to a few units located in areas surrounded by computer programming cen-

ters of excellence ( _i.e._ , Baltimore, Boston, Seattle, and Silicon Valley). Often these military members work in computer security positions in Fortune 500 companies and have vast expertise and training. They offer capabilities to the ANG and

Air Force that are not otherwise available on active duty due to limited exposure to training and real world applications.

Along with the use of traditional Minuteman come unique legal concerns. Due to obligations to maintain proprietary or

business sensitive information, members may have ethical issues that must be addressed. For example, a nondisclosure

agreement may be necessary to protect customer information or to protect the member's job.

ANG commanders should be aware of specific state laws regarding privacy expectations. As is the case in other areas of

this _Deskbook_ , Title 10 and Title 32 as well as State Active Duty (SAD) status can have a major impact on the applicable laws and regulations. For example, Operational Direction (OPDIR) in a domestic cyber incident can be under a local,

non-military person (such as the state Emergency Management Director) or OPDIR can fall under a DHS representative

( _i.e.,_ if there is a domestic attack using a tool like the Stuxnet attack on Iran's Nuclear Industrial Control System) (13).

If a domestic cyber incident employs members in SAD, OPDIR would likely be under the state Emergency Management

Authority (EMA) and would probably involve multiple agencies, including DHS, FBI and industry experts. This was exer-

cised in Cyber Guard 2012 using NSA resources and involved Intelligence Oversight issues. Multiple agencies are in-

volved because cyber threats can manifest themselves in many forms, from an attack by a foreign nation, to espionage, to

cybercrimes, and computer viruses. Consequently, it is anticipated the ANG will be used in its emergency response role,

just like floods and fires.

ANG airmen can also be integrated with active duty in the Air Operations Center (AOC) environment. The employment

of cyber capabilities can be used as a non-kinetic effect or, depending upon the target and tool, a kinetic effect. Cyber warriors operating the weapons systems must be Combat Mission Ready and fulfill Initial Qualification Training (IQT) re-

quirements, as well as Mission Qualification Training (MQT) standardization and evaluation certification before using

the Interceptor or Griffin systems in the same manner as AOC operators. The employment of cyber forces will vary, but

for Title 10 activities, it will likely flow through the AOC utilizing Joint Cyber Command and Control as a conduit to the

National Threat Operations Center (NTOC). As this mission area develops, like air power developed through the 1930s

and 1940s, terms and operational employment of effects will adapt and change.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 15, International Operations Law**_

_**Section 15-21 Cyberlaw and Cyberspace Military Operations**_

_**Page 3**_

_**KWIK-NOTE: Military cyber operations are complex and specialized. ANG commanders should ensure their members are in**_

_**IA compliance, are alert to the activity in this domain, and engage law enforcement if there is any evidence of a crime that**_

_**involves computer information evidence.**_

**RELATED TOPICS:**

**SECTION**

Chain of Custody

8-5

Law of Armed Conflict

15-16

___________________________________________________________________________________________________________

1 The banner that appears when signing on to military computers and websites informs the users they have no expectation of privacy excepting lawfully privileged communications, _i.e._ clergy, doctor-patient, and lawyer-client. Consult state law with regard to government employees' expectation of privacy on government computers when using the ANG domain. There are differences from state to state.

2 "A domain characterized by the use of electronics and the electromagnetic spectrum to store, modify, and exchange data via networked systems and associated physical infrastructures." National Military Strategy for Cyberspace Operations (NMS-CO) 2006.

3 AFDD 3-12, _Cyberspace Operations._

4 The "us.af.mil" domain.

5 Defined as "enabling operations and intelligence collection capabilities conducted through the use of computer networks to gather data from target or adversary automated information systems or networks." JP 1-02.

6 Defined as "actions taken through the use of computer networks to disrupt, deny, degrade, or destroy information resident in computers and computer networks, or the computers and networks themselves." JP 3-13.

7 JP 3-13 explains CNO in more detail.

8 JP 6-0, _Joint Communication System._

9 AFI 33-200, _Information Assurance Management._

10 AFI 33-101, _Commander's Guidance and Responsibilities._

11 _Interceptor_ and _Griffin_ to name a couple.

12 AFI 51-402, _Legal Reviews of Weapons and Cyber Capabilities._

13 A "worm" software virus designed to infiltrate Iranian industrial control systems (ICS), closed systems, specifically those that controlled nuclear centrifuges and take control. Major Erik M. Mudrinich, C _yber 3.0: The Department of Defense Strategy for Operating in Cyberspace and the Attribution Problem_ , citing Nicolas Falliere et al., _W32.Stuxnet Dossier_ , Version 1.1, SYMANTEC (October 2010).

http://www.symantec.com/content/en/us/enterprise/media/security_response/whitepapers/w32_stuxnet_dossier.pdf

_**Air National Guard Commander's Legal Deskbook**_

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**Chapter 16, Investigatory Matters**

**Table of Contents**

**Section**

16 - 1 Table of Contents

16 - 2 Aerospace Accidents and Safety Investigations Off-Base

16 - 3 Aerospace Accident Investigations and Reports

16 - 4 Boards - Investigative

16 - 5 Commander's One-on-One Meeting With Member - Precautions

16 - 6 Congressional and Legislative Inquiries

16 - 7 Fraud, Waste, Abuse and Gross Mismanagement

16 - 8 Freedom to Complain - Military Members

16 - 9 Inspector General

16 - 10 Investigation by Commander of Suspected Minor Offenses

16 - 11 Investigations and Inquiries - Commander-Directed Investigations

16 - 12 Surveillance

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_**Chapter 16, Investigatory Matters**_

_**Section 16-2 Aircraft Accidents and Safety Investigations Off-Base**_

_**Page 1**_

**Aircraft Accidents and Safety Investigations Off-Base**

**Updated by Lieutenant Colonel Donald C. Mobly, July 2007**

**AUTHORITY** : 18 U.S.C. 1385; 50 U.S.C. 797; DOD 5200.8-R, _Physical Security Program_ (May 1991); AFI 31-201, _Security_ _Police Standards and Procedures_ (4 Dec 2001); AFI 31-207, _Arming and Use of Force by Air Force Personnel_ (1 Sep 99); AFI 10-2501 _Air Force Emergency Management_ _(EM) Program Planning and Operations_ (24 Jan 07); AFI 51-503, _Aerospace Accident Investigations_ (14 Jul 04); OpJAGAF 1990/60, _Security_ (1 Oct 1990); OpJAGAF 1997/118, _National Defense Area_ (6 Oct 1997). 

## INTRODUCTION

The impact of the _Posse Comitatus_ Act (18 U.S.C. 1385) on aircraft accidents and safety investigations centers on the fact that if Title 10 status military members are used to guard a crash site off-base, they are restricted in their ability to actively prevent individuals from entering the site and possibly destroying or removing valuable evidence. The _Posse Comitatus_ Act applies to the National Guard only when the National Guard is federalized.

Even though the prohibitions of the _Posse Comitatus_ Act do not apply to the National Guard in state (Title 32) or state active duty status, there may nonetheless be other statutory or regulatory limitations on the use of National Guard person-

nel for certain purposes. Federal or state statutes or regulations may prohibit the intended conduct, and actions taken

without proper authority may invalidate the protections from liability otherwise available under the Federal Tort Claims

Act or similar state statutes for members of the National Guard who are negligent while engaged in such conduct. Com-

manders should proceed with extreme caution when engaging in conduct that would otherwise be prohibited by the _Posse_

_Comitatus_ Act, the ANG being in Title 32 or state active duty status. Thus, it is essential for all Commanders to know how the _Posse Comitatus_ Act, the Federal Tort Claims Act and similar state indemnification statutes, and all statutes and regulations authorizing the specific conduct contemplated ( _e.g._ , AFI 10-2501), affect their responsibilities during aircraft accidents and safety investigations. For the definition and derivation of the term " _Posse Comitatus_ ," see the topic " _POSSE_

_COMITATUS_ " in this _Deskbook_.

This topic first discusses the ways to properly secure an off-base accident site, and then suggests ways to preplan the se-

curing of an off-base accident site.

**METHODS TO SECURE THE ACCIDENT SITE**

There are two basic methods the military can employ to insure the accident site is secured and valuable evidence is not

destroyed without violating the _Posse Comitatus_ Act or other applicable regulations such as AFI 10-2501. One method is to have the civilian authorities secure and guard the area, while the other is to temporarily establish a federal area, called a National Defense Area.

**CIVILIAN AUTHORITIES**

Air Force regulations are very specific as to the role of the civil authorities in response to accidents. AFI 10-2501 states that civil authorities oversee response and recovery operations for major off-base aircraft accidents. Unless a national defense area (NDA) is established, involvement of military resources in the accident gives the Air Force (ANG) no specific

rights or jurisdiction. The Air Force (ANG) demands that its personnel recognize and respect the rights of civil authori-

ties at the accident site. The Air Force (ANG) must work with civil authorities to protect military resources. Upon arriv-

ing, the Air Force (ANG) coordinates command and control requirements, debriefs civil response forces at the scene, and

provides mutual assistance.

Each Air Force (ANG) installation commander makes mutual assistance plans with civilian authorities to cope with emer-

gencies and disasters. Civilian fire and rescue resources can be used to assist in on-base emergencies, while Air Force

(ANG) assets can be used in off-base emergencies. The Air Force (ANG) has unique capabilities in aircraft firefighting

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_**Section 16-2 Aircraft Accidents and Safety Investigations Off-Base**_

_**Page 2**_

and rescue, and the civilian community usually welcomes this aid in aircraft emergencies. Bases will usually set geo-

graphical limits off-base to which crash and fire units will be dispatched. When a military aircraft crashes within these

limits, civil agencies will maintain the authority and responsibility to respond and control the scene, even though Air

Force (ANG) assets respond. Regardless of the distance, however, the installation commander of the nearest military in-

stallation will respond to all accidents involving military aircraft.

By way of an illustration, suppose that a single-seat, military fighter aircraft from another base and MAJCOM has crashed

30 miles from your base. Your base is the closest military installation to the crash site. The distance is beyond that to

which your base's fire and crash equipment will respond. You as base commander have dispatched your Disaster Re-

sponse Force (DRF) headed by the incident commander to the scene. Civil authorities have already advised you that they

are at the scene, there are no survivors and the fire has been put out. You elect to send your base interim safety board to

the scene to start preliminary investigation, pending arrival of the other MAJCOM safety investigation board.

As the incident commander arrives, the county coroner has just pronounced the pilot dead from impact injuries. The

state highway patrol is performing its investigation and interviewing witnesses. Upon seeing the military arrive, the state

police are eager to return to their normal duties. The county sheriff has an extremely small staff and does not wish to re-

main to guard the wreckage. The crash site is on private property adjacent to a county road. A growing group of curious

people is beginning to press closer to view the wreckage. Several private vehicles have already driven over what appears

to be ground scars from the crash. The temptation is to replace the state police with military personnel, and refuse entry

to, and forcibly stop anyone from disturbing or removing anything from the wreckage.

One way to keep the area secure is to persuade the civil authorities to keep civilians out of the crash site. If the property owner can be reached, the property owner could request the civil authorities to keep the sightseers off the property, providing the property owner can be persuaded to do so. Then the military could be used to passively aid and help the civil

authorities by "advising" people seeking entry that they will be trespassing and will be reported to the civil authorities. If the owner cannot be reached, the civil authorities may be persuaded to keep the area cordoned off to protect the public.

In either case, the military cannot actively aid, or actively stop anyone from taking anything that is classified away from

the crash. Therefore, the success of preserving the evidence is based on the cooperation of the civil authorities.

The above example is a very simple, but common one involving the off-base crash of a military aircraft. The actual situa-

tion is normally made much more complicated by a myriad of actual circumstances. Yet, it does give an example of how

the _Posse Comitatus_ Act can affect the safety investigation.

**NATIONAL DEFENSE AREA (NDA)**

The other method of securing the accident site is the establishment of a restricted area, known as a National Defense

Area. The NDA is a military zone that contains and secures federal government resources in US and US territorial areas

that do not fall under the jurisdiction of the DOD. Installation commanders, in consultation with higher command, estab-

lish National Defense Areas through their on-scene commanders.

Although the establishment of an NDA is usually associated with nuclear aircraft accidents, the NDA can be established

to protect against the loss of classified material or equipment that was aboard the aircraft. It should not be established if the only rationale for creating the NDA is that the mishap aircraft was a priority A, B or C resource. Once the aircraft has crashed, it can no longer carry out its wartime mission and, thus, loses its priority classification.

The guidelines for the establishment of a National Defense Area may be found in DoD 5200.8-R. The incident com-

mander will define and mark the boundaries of the NDA under the authority of the commander of the unit that owns the

aircraft. When establishing the NDA, a temporary barrier marking the boundary of the area should be used. Additionally,

it is important that the landowners and users are advised of the nature of the actions being taken and the security con-

trols in effect. The wishes of the landowners concerning the size, shape and location of the NDA should be respected

where possible but, if necessary, the NDA must be established even without landowner consent/cooperation. The

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_**Chapter 16, Investigatory Matters**_

_**Section 16-2 Aircraft Accidents and Safety Investigations Off-Base**_

_**Page 3**_

landowners should also be given assurances that once the classified material has been recovered, the federal control of

the National Defense Area will terminate.

Where possible, civilian authorities should be asked to provide help in securing the National Defense Area. In maintain-

ing security, Air Force (ANG) personnel will use the minimum degree of control and force which is reasonable and neces-

sary under the circumstances. To the greatest degree possible, civilian authorities should handle the apprehension and

arrest of civilians violating the security of the NDA. If they are not available or refuse to help, the military personnel on-scene will apprehend and detain those individuals who violate or trespass the NDA ( _see_ 50 U.S.C. 797).

It is very important that in the establishment of a National Defense Area, the civil authorities and landowners are given

as much information and notice as possible. If the landowners do not agree with the establishment of the NDA, they do

have legal recourse and may attempt to secure an injunction against the Air Force (ANG). Legal action may be avoided if

the landowners can be convinced that the need to establish the National Defense Area is for national security, and that

once the classified material is recovered, the land covered in the NDA will be returned to civilian control. However, legal

action takes time even if done quickly, and the needs of national security may require the On-Scene Commander to estab-

lish the NDA, while the disagreeing landowners pursue this course.

If a National Defense Area is established, safety investigators will get valuable time to make a preliminary investigation

and preserve perishable evidence while the search for the classified material is underway. Once the NDA has been re-

turned to civilian control, the safety board will then need to turn to the civilian authorities for any protection of the site and evidence.

Further explanation of a National Defense Area in this _Deskbook_ is under the topic _"NATIONAL DEFENSE AREA._ "

**PREPLANNING TO SECURE THE ACCIDENT SITE**

Preplanning can only aid in the response to an unexpected mishap. Each Air Force (ANG) installation is required to de-

velop a pre-accident plan that identifies the required resources and plan of action to be taken in response to an accident.

Each base is also required to publish a Comprehensive Emergency Management Plan (CEMP) 10-2. Annex A to CEMP

10-2 directs those actions to be taken if a major accident occurs. It is through these two documents that safety personnel

have their opportunity to coordinate the security of the crash site and its evidence.

Both plans should establish liaison with local civilian authorities so that prompt notification of off-base accidents is re-

ceived and that security and communication at the scene can be established. This liaison is established in the form of mu-

tual assistance (aid) agreements (MAA) with local, county and state agencies. These agreements must be periodically

reviewed by Air Force and ANG legal authorities to insure that the _Posse Comitatus_ Act, or other applicable regulations, are not being violated. In the writing and review of these agreements, the safety staff can approach civilian authorities to present the safety staff's case for the security of the crash site and evidence.

The primary concern of the civilian authorities with off-base crashes is the initial response and lifesaving aspects of the

emergency. Other demands may require their attention elsewhere once any fires have been put out and any casualties at-

tended to. Often, the important interests of the Air Force (ANG) regarding an emergency, such as the integrity of the Air

Force Safety Investigation, the security of the crash site, and the preservation of evidence, receive low priority from the

civilian authorities. It is also quite difficult at the scene of an actual mishap to begin to explain to these civilian authorities the concepts behind the Air Force Accident Prevention or Safety Investigation Programs.

Thus, it is imperative during the initial establishment and annual review of the mutual aid agreements that the safety of-

fice make every attempt to brief civilian authorities on the Air Force Safety Investigation and Accident Prevention Pro-

grams and the need for security of the crash site and the preservation of evidence. These briefings may convince the civil-

ian authorities to make efforts to aid in the safety investigation if, in the future, an off-base crash occurs.

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_**Section 16-2 Aircraft Accidents and Safety Investigations Off-Base**_

_**Page 4**_

The safety office should also insure that members of the disaster response force understand the need to preserve evi-

dence and understand what they can do to help the safety investigation board. The incident commander is required to

work closely with the safety investigation board and should know well beforehand what types of support the board will

need to accomplish its investigation. The incident commander may be under extreme pressure in an off-base accident to

begin the wreckage recovery operation as soon as possible, and detailed knowledge of safety board requirements will

help in making that decision.

The Staff Judge Advocate and Finance office representatives can also aid in the preservation of evidence by making on-

the-spot agreements and payments to civilian landowners. This could be in the form of buying a right-of-way, or leasing

land at the crash site which could place the site under control of the Air Force (ANG) for a limited time. However, both

the SJA and comptroller should, in the planning stages, have discussed questions of payment, authority, reimbursement,

and procedures in these situations with the nearest active duty Air Force claims office. The SJA and incident commander

should also discuss with safety personnel the possibilities and procedures of establishing a National Defense Area. The

NDA may be the only way to safeguard classified material and protect vital evidence. The SJA should also insure that all

military personnel at the crash site understand the implications of the _Posse Comitatus_ Act.

**SUMMARY**

The _Posse Comitatus_ Act and other regulations ( _e.g._ AFI 10-2501) have an impact on off-base aircraft accidents and safety investigations. Generally, military forces are prohibited from taking active civilian law enforcement actions. Thus, if military personnel are used to secure an accident site in areas not under the control of the USAF, ANG or DOD, they legally

cannot stop a civilian from entering the crash site and removing or destroying evidence that may be significant in the acci-

dent investigation. The Air Force (ANG) does not have any specific rights or jurisdiction at an accident site based solely

on the fact that military personnel or material were involved in the accident.

The civilian authorities have jurisdiction over the crash site and are responsible for its control. If the site is to remain secure, these forces, passively augmented by military members, must insure vital evidence is not removed or destroyed.

Civilian authorities, however, are not required to maintain the site security for the sole purpose of an Air Force (ANG)

accident investigation. If close coordination and cooperation between military and civilian authorities have been previ-

ously accomplished through mutual aid agreements, site security and evidence preservation may be realized. But the

rights and wishes of private landowners may take precedence over the Air Force (ANG) requirement for site security and

evidence preservation.

If classified material was on the aircraft and has not been recovered, the incident commander, under the authority of the

Commander exercising control of the aircraft, may establish a National Defense Area. The NDA is a secure area and will

be protected as such by military personnel. Even so, civilian authorities should be relied upon whenever possible to han-

dle civilian arrest and detention. If an NDA is established, the safety investigation board will have an additional opportu-

nity to search for and preserve evidence necessary for the investigation of the accident. The NDA cannot be established

solely on the need for the protection of evidence for an investigation. A National Defense Area is a temporary measure

and control of the site should be returned to civilian authorities as soon as possible.

The most positive method for insuring that an off-base accident site is kept secure is to convince the landowners and ci-

vilian authorities of the necessity to preserve the evidence for the purposes of the safety investigation and accident pre-

vention. This requires that a relationship be established with the civil authorities and the public in advance of a mishap,

to explain the necessity of meaningful accident prevention and safety investigation programs.

_**KWIK-NOTE: Periodically brief this topic to your DISASTER RESPONSE FORCE about such accidents.**_

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_**Chapter 16, Investigatory Matters**_

_**Section 16-2 Aircraft Accidents and Safety Investigations Off-Base**_

_**Page 5**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Jurisdiction

2-5

Aid to Civilian Authorities

6-2

Aerospace Accident Investigations and Reports

16-3

Aerial Events, Fly-Overs, and Static Displays

13-2

Ambulance Response Off-Base

19-3

Classified Material

14-2

Counter-Drug Support Program

6-5

Disposal of Personal Property

1-11

Federal Government Property Furnished to the ANG

25-10

Fire Protection Jurisdiction

25-11

Media Relations and the Public Affairs Office

14-8

Memoranda of Understanding (MOUs)

6-6

National Defense Area

25-15

_Posse Comitatus_

6-7

Reciprocal Fire Protection

25-18

Relief from Civil Liability

18-10

_**Air National Guard Commander's Legal Deskbook**_

565

_**Chapter 16, Investigatory Matters**_

_**Section 16-3 Aircraft and Missile Accident Investigations and Reports**_

_**Page 1**_

**Aerospace Accident Investigations and Reports**

**Updated by Lieutenant Colonel Donald C. Mobly, September 2007**

**AUTHORITY** : AFI 51-503, _Aerospace Accident Investigations_ (16 Jul 04); DODI 6055.7, _Accident Investigation, Reporting and_ _Record Keeping_ (3 Oct 00); AFI 91-204, _Safety Investigations and Reports_ (14 Feb 06).

**BACKGROUND**

DoDI 6055.7, _Accident Investigation, Reporting, and Record Keeping_ , requires each service to conduct safety mishap investigations and "legal mishap" investigations for specified accidents. The Services use different terminology to refer to legal

mishap investigations. The Air Force uses the term "accident investigation" in lieu of "legal mishap investigation." The

Army uses the term "collateral investigation" and the Navy uses the term "JAGMAN investigation." Accident investiga-

tions are separate from and independent of safety investigations. Air Force accident investigations are conducted through

Accident Investigation Boards (AIBs) under the authority of AFI 51-503, which expressly applies as well to the ANG. An

AIB is composed of a board president and advisory members. The AIB is a nonvoting board; the president is solely re-

sponsible for the contents of the AIB Report.

**PURPOSE OF ACCIDENT INVESTIGATIONS**

The purpose of accident investigations is to provide a publicly releasable report of the facts and circumstances surround-

ing the accident, to include a statement of opinion on the cause of the accident; to gather and preserve evidence for

claims, litigation, disciplinary, and adverse administrative actions; and for all other purposes. AIB Reports are:

1. Provided and personally briefed to the next-of-kin (NOK) of crew members and other military personnel and civilians

killed, and to individuals seriously injured in the accident.

2. Released to members of Congress, upon request.

3. Released to members of the public and media, upon request.

4. Released to other interested government agencies, upon request.

5. Used by the Air Force for adjudication of wrongful death, personal injury, and property damage claims resulting from

the accident.

6. Used by Air Force commanders as a source document to assist them in assessing whether any punitive or administra-

tive action should be taken against persons whose negligence or misconduct contributed to the accident.

**DISTINGUISHED FROM SAFETY INVESTIGATION**

This investigation is distinguished from the Safety Investigation which is conducted pursuant to AFI 91-204 after an air-

craft, missile, nuclear or space mishap, solely for mishap prevention. Safety investigations determine the causes of acci-

dents to prevent future accidents. Safety investigations usually take precedence over accident investigations, though the

two investigations will overlap in time. In the event of conflicts between the two investigations regarding scene access,

acquiring and examining evidence, and interviewing witnesses, safety investigations have priority.

Because the overriding purpose of safety investigations is accident prevention, no impediment to the gathering of timely

and accurate information should occur. During certain types of safety investigations, promises of confidentiality may be

granted to witnesses and contractors in order to promote full and timely disclosure of information. Statements and docu-

ments given under a promise of confidentiality are privileged and cannot be disclosed outside of Air Force safety chan-

nels. The Air Force does not use privileged safety information for line-of-duty determinations, claims adjudication, flying

evaluation board proceedings, pecuniary liability determinations, or any other civil, criminal, or adverse actions. Access

to privileged safety documents is limited to those with a genuine need to know. The AIB is not authorized access to privi-

leged safety documents.

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_**Chapter 16, Investigatory Matters**_

_**Section 16-3 Aircraft and Missile Accident Investigations and Reports**_

_**Page 2**_

**MANDATORY AIBs**

In accordance with AFI 51-503, commanders must investigate Air Force aircraft, unmanned aerial vehicle (UAV), mis-

sile, or space accidents in the following instances:

1. All Class A accidents, as defined in DoDI 6055.7, paragraph E2.1.3.1 and AFI 91-204, Chapter 1, except those that re-

sult solely in damage to government property.

2. There is a probable high public interest.

3. All suspected cases of friendly fire, as defined in DoDI 6055.7, paragraph E2.1.16.

4. All accidents involving the loss of an Air Force aircraft, UAV (other than a subscale aerial target remotely piloted vehicle), or space launch system.

**DISCRETIONARY AIBs**

1. There is anticipated litigation for or against the government or a government contractor; or

2. There is anticipated disciplinary action under the UCMJ against any individual; or

3. There are damages to third parties that likely will exceed $250,000.

Other aircraft, UAV, missile, or space accidents may be investigated under AFI 51-503 at the discretion of any Wing or

higher commander. When an accident results solely in damage to government property in an amount of $2 million or

more, the SJA for the Air Force MAJCOM responsible for the aircraft, UAV, missile or space system shall notify the

MAJCOM commander of the accident and recommend in writing whether a discretionary AIB should be convened.

**ACCIDENTS NOT REQUIRING AN AIB**

1. Death, injury, or property damage by action of an enemy or hostile force.

2. Intentional or expected damage to Air Force equipment or property (e.g. authorized testing or combat training, includ-

ing missile and ordnance firing; destruction of weapon system to prevent capture by enemy or hostile force; etc).

3. Accidents investigated by another federal agency or military department resulting in a publicly releasable report.

**CONVENING AUTHORITY**

The convening authority for an AIB is the same commander who convened or would convene a corresponding safety in-

vestigation under AFI 91-204. For Class A accidents, the convening authority will be the MAJCOM commander. This re-

sponsibility may be delegated to the MAJCOM vice-commander, but may not be delegated to a subordinate commander

or staff member. In cases involving ANG aircraft accidents, the gaining MAJCOM convenes the AIB; however the Air Na-

tional Guard has the discretion to conduct accident investigations, using AFI 51-503 as a framework, for any accidents

not investigated by the Air Force under AFI 51-503.

**PROCEDURES**

The convening authority convenes the investigation and issues the appointment orders of the AIB.

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_**Section 16-3 Aircraft and Missile Accident Investigations and Reports**_

_**Page 3**_

The AIB president, as well as other AIB members, legal advisors, and technical advisors, should not be from the same

wing or equivalent organization to which the accident aircraft, UAV, missile, space vehicle or crew members were as-

signed. Additionally, any member of the safety investigation board or the board's technical advisors or witnesses may not

serve as accident investigation board members to the same accident. ANG and AFRC officers may be appointed by the

convening authority to serve on AIBs.

AIB presidents should be field grade officers, senior in grade to persons involved in the accident, and must come from

outside the mishap wing. The requirement that AIB Presidents come from outside the mishap wing may be waived by

AFLOA/JACT in cases where the aerospace vehicle involved is one of only a few of its class ( _e.g.,_ Predator, E-8, Global Hawk). For Class A accidents, AIB presidents must be 0-5 or above and should, if possible, be the same rank as the corresponding SIB president. For any accident involving a fatality, the AIB president must be a General Officer or Brigadier

General (Select). For aircraft accidents, AIB presidents must be a pilot or navigator and should have experience in the

aircraft involved. Likewise, for missile, or space accidents, the AIB presidents should have expertise and experience in

the system involved and must be a missile or space operations officer. AIB presidents must attend the AFSC Board Presi-

dent's Course before conducting a Class A accident investigation. Upon receipt of Part I of the Safety Report, the Presi-

dent will focus exclusively on the AIB and is relieved of all other duties.

A legal advisor is appointed by the convening authority who is responsible for insuring full compliance with AFI 51-503.

The legal advisor must be a graduate of the AIB Legal Advisor Course. The legal advisor will normally be a field grade

judge advocate from outside the mishap wing. A captain may serve if the accident did not involve a fatality. The legal advi-

sor may be from the same wing as the President. The legal advisor is relieved of all other duties upon receipt of Part I of

the Safety Report. Additionally, technical advisors from a variety of specialties such as maintenance, personnel, medical

and operations will be appointed as necessary as will a technical advisor from the ANG for every accident investigation

involving ANG aircraft. This appointment will be with the concurrence of the state Adjutant General concerned.

Safety investigations conducted under AFI 91-204 take priority over accident investigations. Safety investigation person-

nel are accorded first access to the accident scene, to the witnesses and other evidence involved in the accident.

Accident investigators are forbidden to review privileged documents and privileged source information given to safety

investigators.

Before beginning the investigation, the AIB president should consult with the legal advisor appointed by the convening

authority. The AIB president should contact the SIB president to determine the status of search and rescue, recovery of

remains, and salvage operations. The AIB president at this point should also determine the status of the safety investiga-

tion and decide how to proceed. Although the SIB president may not discuss privileged safety information, he or she may

relay the facts of the accident and describe the technical reports that will be in Part 1 (non-privileged) of the Safety Re-

port. Upon receiving Part 1, the AIB president should determine which additional tests should be conducted (metallurgy,

hydraulics, etc.) Additionally, the AIB president should obtain any other non-privileged information from the SIB, and

should also obtain a list of all witnesses interviewed by the SIB.

SIB witnesses may not testify in accident investigations until released by the SIB president. Witnesses who have testified

at the SIB must be advised by the AIB that their testimony might be used in potential adverse actions, litigation or claims

and the witnesses should be specifically told the differences between testimony provided at a SIB and that provided to an

AIB. Those witnesses, however, may not be asked and are not permitted to relate what they told the SIB. Witnesses may

provide the same factual information to both safety and accident investigators, but the AIB must gather its information

by independent questioning. AIB investigators may not offer confidentiality to witnesses. Witnesses who are suspected

of criminal offenses are advised as appropriate of their privilege against self-incrimination.

The two primary sections of the AIB report are a Summary of Facts and a Statement of Opinion. It is written by the AIB

president who is solely responsible for its content, including the Statement of Opinion. The latter represents the AIB

president's personal opinion regarding the cause or causes of the accident; or if the evidence surrounding the accident is

_**Air National Guard Commander's Legal Deskbook**_

568

_**Chapter 16, Investigatory Matters**_

_**Section 16-3 Aircraft and Missile Accident Investigations and Reports**_

_**Page 4**_

not sufficient to come to an opinion as to the causes of the accident, it describes those factors, if any, that substantially contributed to or caused the accident. The Opinion will be publicly released along with the rest of the AIB report. However, the Opinion cannot be considered an admission of liability by the United States or of any person referred to therein.

The Opinion may not be considered as evidence in any civil or criminal proceeding arising from the accident.

Prior to distribution, the AIB report should be submitted to the convening authority's SJA for review and ultimate ap-

proval. The remarks and comments of the convening authority and his staff on the draft report are not publicly releas-

able. The convening authority's approval does not suggest nor denote agreement by the convening authority with the

Statement of Opinion of the AIB president. Rather, it is an indication that the report complies with applicable laws and

regulations. Once the convening authority approves the report, the report is distributed to a number of offices through-

out the Air Force and to next-of-kin and seriously injured personnel. Prior to public release of the report, next-of-kin and seriously injured personnel receive briefings of the results of the investigation. If requested, members of Congress may

also receive copies of the report and informational briefings prior to public release.

Within 15 days of forwarding the final report, the AIB president must prepare a post-investigation memorandum to the

convening authority's SJA. The purpose of the memorandum is to serve as a formal record of the transmittal of all evi-

dence and other documents to the convening authority. It will contain a list of documents, an inventory of physical evi-

dence, photographs, tape and audio recordings, and a description of the disposition and/or whereabouts of wreckage and

other ancillary evidence.

_**KWIK-NOTE: Legal advisors to the Accident Investigation Board President are required to be present during witness inter-**_

_**views, and must review all evidence, documents and transcript, and statements before inclusion in the President's report.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Line of Duty Determinations

1-19

FAA Investigation of Flying Violations by Military Members

13-5

Flying Evaluation Boards

13-6

Classified Material

14-2

"For Official Use Only"

14-3

Media Relations and the Public Affairs Office

14-8

Freedom of Information Act

14-10

Privacy Act

14-12

Releasing Information in Litigation

14-7

Aerospace Accidents and Safety Investigations Off-Base

16-2

Boards – Investigative

16-4

Congressional and Legislative Inquiries

16-6

Investigations and Inquiries

16-11

Claims

18-2

_Feres_ Doctrine

18-3

Lawsuits Against National Guard Personnel

18-6

National Defense Area

25-15

_**Air National Guard Commander's Legal Deskbook**_

569

_**Chapter 16, Investigatory Matters**_

_**Section 16-4 Boards - Investigative**_

_**Page 1**_

**Boards - Investigative**

**Updated by Colonel Bill Rogers, April 2016**

**AUTHORITY** : AFI 11-402, _Aviation and Parachutist Service, Aeronautical Ratings and Aviation Badges_ (5 Feb 13); AFI 51-602, _Boards of Officers_ (5 May 09); AFI 91-204, _Safety Investigations and Reports_ (AFGM, 11 Jan 16); AFI 51-503, _Aerospace and_ _Ground Accident Investigations_ (14 Apr 15); AFI 36-3209, _Separation and Retirement Procedures for Air National Guard and Air_ _Force Reserve Members_ (20 Sep 11).

**PURPOSE AND USE**

Commanders need to be familiar with the concept of administrative boards. Air Force and Air National Guard regula-

tions provide for use of investigative boards in connection with a number of personnel, administrative, and other actions.

For example, boards are used for some administrative discharge actions under AFI 36-3209, for safety investigations un-

der AFI 91-204, for accident (legal) investigations under AFI 51-503, and for determining suitability to continue flying

duties under AFI 11-402. Commanders have general authority to use a Board of Officers, pursuant to AFI 51-602, to in-

vestigate other matters where an individual member may face unfavorable consequences if an adverse finding.

**POLICY AND PROCEDURES**

**When to Use and When Not to Use AFI 51-602**

It is Air Force and Air National Guard policy that, because of the potential adverse consequences, it is necessary to en-

sure each respondent is afforded a full, fair and impartial hearing. AFI 51-602 provides general procedural guidance for

such hearings by boards of officers. This directive must be used in conjunction with the specific regulation governing the

proposed action, such as AFI 36-3209 for administrative discharges.

AFI 51-602 is specifically made applicable to board proceedings involving (1) separating military personnel from the Air

Force; (2) imposing monetary liability on military and civilian personnel, except actions pursuant to AFI 34-202, Protec-

tion of Assets, or as to military personnel for Article 139, Uniform Code of Military Justice (UCMJ) claims under AFI 51-

502, Personal and Government Recovery Claims; or (3) taking any other administrative action where it applies to Air

Force military personnel either by regulation or appointing orders.

**Participants**

A board convened under AFI 51-602 must consist of at least three officers, who must be senior in grade to the respon-

dent. Enlisted members may be permitted to serve as board members if permitted by the specific regulation governing

the proposed action. Board members may be challenged for cause only. Boards also include a legal advisor, who is a

Judge Advocate and acts in a role similar to a military judge in a court-martial. The legal advisor rules on admissibility of evidence and other legal issues and may conduct hearings without board members to assist in clarifying matters. A recorder, who is also usually a Judge Advocate, presents the case on behalf of the government. A military respondent is en-

titled to be represented before the board, free of charge, by a military lawyer, and to have civilian counsel at the respon-

dent's own expense. Respondents have the right to be present at board proceedings (except during the board's closed

deliberations) and to present evidence in their own behalf. However, the right of the respondent to be personally present

is waived if the respondent is in deserter status or civilian confinement, although such a respondent is still entitled to be represented at the hearing by military counsel.

AFI 51-602 also establishes the evidentiary rules, burden of proof, requirement for making findings of fact and recom-

mendations, and keeping a record of the board proceedings.

_**Air National Guard Commander's Legal Deskbook**_

570

_**Chapter 16, Investigatory Matters**_

_**Section 16-4 Boards – Investigative**_

_**Page 2**_

**SPECIALTY BOARDS - EXAMPLES**

**Accident Investigations and Safety Investigations – Separate Investigations and Boards**

Accident investigations are conducted by accident investigation boards (AIB) for aerospace accidents and by ground acci-

dent investigation boards (GAIB) for ground accidents, while safety investigations are conducted by safety investigation

boards (SIB). Accident investigations are convened by Major Command (MAJCOM) commanders. Where applicable, the

MAJCOM commander who convened or would have convened the preceding safety investigation also convenes the acci-

dent investigation.

Safety investigations are separate and distinct from accident investigations. A safety investigation is conducted pursuant

to AFI 91-204, _Safety Investigations Reports_. Safety investigations and reports are conducted and written solely to prevent future mishaps. Except for unusual cases, such as suspected causal criminal activity, safety investigations take priority,

both in sequence and access to evidence, over any corresponding legal investigations. The safety privilege ensures com-

manders obtain critical information expeditiously during a safety investigation and ensures completed final reports are

protected, thereby proactively promoting safety, combat readiness, and mission accomplishment. Access to privileged

safety information is limited to those with a need to know for mishap prevention.

Pursuant to AFI 51-503, aerospace accident investigations are convened to investigate on-duty accidents involving Air

Force aerospace assets, which include manned and remotely piloted aircraft, missiles, space assets/vehicles, and aero-

stats. Ground accident investigations are convened to investigate all other accidents not involving Air Force aerospace

assets, unless otherwise excluded in this publication. An accident investigation board conducts a legal investigation to

inquire into all the facts and circumstances surrounding Air Force aerospace and ground accidents, to prepare a publicly-

releasable report, to obtain and preserve all available evidence for use in litigation, claims, disciplinary action, and ad-

verse administrative action. Accident investigation board members are not authorized access to privileged safety informa-

tion at any time before or during the investigation.

**Flying Evaluation Boards**

Flying Evaluation Boards (FEBs) are convened pursuant to Chapter 4 of AFI 11-402. FEBs are applicable to rated offi-

cers, Career Enlisted Aviators (CEAs), and non-rated officer, enlisted aircrew members, and civilian government employ-

ees only. While counsel may represent the respondent in an FEB, an FEB is not an adversarial proceeding. The respec-

tive wing commander is normally the convening authority for FEBs. The convening authority and subordinate MAJCOM

authorities review the FEB report before the respondent's MAJCOM commander takes final action. For FEB purposes,

the National Guard Bureau (NGB) is the designated MAJCOM. Respondents can be referred to an FEB for:

1. Extended Aviation Service suspension or disqualification. A rated officer or CEA disqualified from aviation service for

longer than eight years.

2. Lack of proficiency.

3. Failure to meet training standards.

4. Lack of judgment.

5. Failure to meet aircrew ground or flying training requirements.

6. Violation of other aviation instructions and procedures.

7. Undesirable habits, traits of character, or personality characteristics.

_**Air National Guard Commander's Legal Deskbook**_

571

_**Chapter 16, Investigatory Matters**_

_**Section 16-4 Boards – Investigative**_

_**Page 3**_

Commanders should consult with their Judge Advocates about the use of investigative and administrative boards. Some

of the Related Topics include areas where an investigative board may be convened if a commander determines the use of

an inquiry is insufficient.

_**KWIK-NOTE: Commanders should know their authority to convene and appoint the various kinds of investigative boards.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Line of Duty Determinations

1-19

Selective Retention in the Air National Guard

1-36

Ethics

7-3

Evidence – Differing Standards and Burdens of Proof

8-4

Flying Evaluation Boards

13-6

Aerospace Accidents and Safety Investigations Off-Base

16-2

Congressional and Legislative Inquiries

16-6

Fraud, Waste, and Abuse

16-7

Freedom to Complain – Military Members

16-8

Inspector General

16-9

Investigations and Inquiries

16-11

Witness Preparation

17-19

Legal Reviews

17-11

Military Administrative Actions

18-5

Worldwide Duty Medical Evaluations

19-12

Selective Enforcement

24-14

Reports of Survey

25-19

_**Air National Guard Commander's Legal Deskbook**_

572

_**Chapter 16, Investigatory Matters**_

_**Section 16-5 Commander's One-On-One Meeting with Member - Precautions**_

_**Page 1**_

**Commander's One-On-One Meeting with Member - Precautions**

**Updated by Colonel Bill Rogers, April 2016**

**AUTHORITY** : AFI 1-2, _Commander's Responsibilities_ (8 May 14); Uniform Code of Military Justice (UCMJ) Article 31; 5

U.S.C. 7114 (a)(2)(B); _Miranda v. Arizona_ , 384 U.S. 436 (1966); applicable state law, regulations; command discretion. 

## INTRODUCTION

AFI 1-2, paragraph 3.2, charges commanders to, "establish and maintain a healthy command climate which fosters good

order and discipline, teamwork, cohesion, and trust. A healthy climate ensures members are treated with dignity, re-

spect, and inclusion, and does not tolerate harassment, assault, or unlawful discrimination of any kind." Consequently,

commanders are routinely called upon to look into and resolve incidents, offenses, complaints, and other matters of offi-

cial interest relating to the unit. Commanders receive information from various sources, including anonymous letters or

phone calls, unit or DOD Hotline communications, Congressional or other legislative inquiries, and complaints from the

public, unit members, or alleged victims. Three common mistakes commanders often make are: 1) failing to formally ac-

knowledge receipt of complaints; 2) failing to make some degree of investigation into complaints; and 3) immediately

calling in the member who is the subject of the complaint and demanding the member's side of the story.

**PRECAUTIONS - LEGAL CONSIDERATIONS**

**Acknowledge Receipt of Complaints**

Most complainants simply want assurance that someone in authority is listening to their concerns. A polite, profession-

ally written response acknowledging receipt of a complaint will often be the last time a commander hears from the com-

plainant. When writing such a letter, a commander should not give an opinion on the validity of the complaint and

should not comment on potential consequences for the subject. Conversely, failing to acknowledge receipt of a complaint

often results in inquiries from higher headquarters, Congress, and the media.

**Investigating Complaints**

Once a complaint is received, a commander must decide what level of investigation to initiate. Just as every complaint is

not appropriate for referral to the Office of Special Investigations (OSI), very few cases lend themselves to a commander

summarily disregarding and dismissing a complaint without some degree of investigation. The Air Force's preferred

means for investigating command matters is the Commander-Directed Investigation (CDI) when another investigative

channel does not exist or is less suitable. Your staff judge advocate is an excellent sounding board for this decision, especially considering how rapidly the law is changing regarding investigations of particular allegations of misconduct ( _e.g._ , reprisal, sexual assault, senior officer misconduct).

**Deciding Whether to Question a Military Member**

A commander or supervisor must remember the requirement that, "a person suspected of an offense" must be given the

military version of a _Miranda_ rights warning under Uniform Code of Military Justice (UCMJ) Article 31(b) and many

state military codes. _Miranda v. Arizona_ , 384 U.S. 436 (1966). Note the military version of the rights warning affords military members greater protection than a civilian counterpart. For example, if a member is habitually late for drill weekend

and is confronted by a supervisor with the demand, "Why were you late again?" anything the member says in response,

assuming no rights warning was given, is in violation of UCMJ Article 31 and/or state code and cannot be used against

the member in a subsequent disciplinary action. Keep in mind very few administrative or disciplinary actions require a

statement from a member in order to support the action. Further, since the member is given an opportunity to voluntar-

ily respond to an administrative or disciplinary action, it is more prudent to forego taking the member's initial statement

than to have to deal with the consequences of a statement taken from a member after a defective or no rights warning.

_**Air National Guard Commander's Legal Deskbook**_

573

_**Chapter 16, Investigatory Matters**_

_**Section 16-5 Commander's One-On-One Meeting with Member - Precautions**_

_**Page 2**_

**Considerations after Deciding to Question a Military Member:**

1. Nothing precludes a commander or supervisor from making statements _to_ a military member. A rights warning is re-

quired to be given a military member only when responses to questions are being elicited _from_ that member.

2. A witness, other than the subject of the investigation, is not entitled to a rights warning. Resist the temptation of dancing around this issue when you have more than one subject allegedly involved in the same underlying misconduct.

3. Plan, in advance, what questions will be asked. Think of open-ended questions that will elicit a narrative response

rather than closed-end 'yes-no' type of questions. For example, rather than asking, "You haven't been paying child sup-

port, have you?" considering phrasing the question, "How much child support have you been paying?" or "Why haven't

you been paying child support?"

4. Review a copy of the rights warning that is appropriate for your state. You can obtain a copy from your staff judge advo-

cate or security forces. Do not try to memorize it; read it verbatim to the member. Alternatively, AF Form 1168 contains

the complete rights warning with boxes for the member to initial before each election of rights. Even if your state does

not use or incorporate the UCMJ, the form is still evidence the member was given a rights warning.

5. Always have another senior officer or SNCO in the room. Resist the temptation to bring in more spectators or wit-

nesses, especially the entire chain of command or other members of the unit to 'send the message' or 'teach a lesson.'

Keep in mind that state and federal privacy laws apply to most administrative and disciplinary matters.

6. One person should be asking questions without taking notes and the second person taking notes without asking ques-

tions. Following this approach usually produces the best information and results.

7. Do not have the suspect/military member initially write their statement or answers. Ask your questions, have a sec-

ond person take notes, and then ask the member to write out their statement.

8. Do not have the alleged victim or accuser in the room with the person being questioned – it sets the stage for intimida-

tion. There may come a time for that at a later date.

9. Do not tape/audio record these meetings. Should there be some compelling need to consider doing so, consult your

staff judge advocate in advance to ensure no state or federal laws would be violated.

10. Remember the Chief of Staff Hand-Off Policy. At the conclusion of the questioning, the subject should be physically

handed off to a first sergeant, chaplain, or senior supervisor who was not involved in the interview. Regardless of the out-

come, these type of interviews can be very traumatic for many airmen and the hand-off policy is intended to ensure their

well-being.

**Civilian Personnel Actions**

If you have civilians or military technicians who are member of a collective bargaining unit, they typically have 'Weingar-

ten Rights.' _See_ _NLRB v. J. Weingarten, Inc._ , 420 U.S. 251 (1975). The specific rights of federal employees to union representation is spelled out in 5 U.S.C. 7114 (a)(2)(B). This decision gives union members the right to union representation dur-

ing investigatory interviews, to which the following rules apply:

1. The employee must make a clear request for union representation before or during the interview. The employee can-

not be punished for making this request. This requirement does not prevent the union from filing a grievance or for arbi-

tration if a union representative was not present, regardless of whether the member made a request. Further, many arbi-

trators are very sensitive to 'investigative interviews' where members do not have a representative present.

_**Air National Guard Commander's Legal Deskbook**_

574

_**Chapter 16, Investigatory Matters**_

_**Section 16-5 Commander's One-On-One Meeting with Member - Precautions**_

_**Page 3**_

2. After the employee makes the request, the commander or supervisor must choose either to:

a. Grant the request and delay questioning until the union representative arrives, and prior to the interview continuing,

the representative has a chance to consult privately with the employee;

b. Deny the request and end the interview immediately; or

c. Give the employee a clear choice between having the interview without representation and ending the interview.

3. If the employer denies the request for union representation and continues to ask questions, he or she commits an un-

fair labor practice (ULP) and the employee has a right to refuse to answer the questions.

If a civilian employee is not a member of a union, they still might have certain procedural rights during investigative in-

terviews or when facing potential administrative or disciplinary action. Consult your state human resources office, per-

sonnel management office, or labor-management relations office prior to questioning a civilian or military technician.

**CONCLUSION**

The one-on-one meeting may be a good way to get to the bottom of a minor incident or problem but commanders should

be cautious in holding such meetings. Commanders are encouraged to contact their staff judge advocate for guidance.

_**KWIK-NOTE: Commanders should be careful when meeting in private with someone under their command.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Line of Duty Determinations

1-19

Civilian Employee Discipline

5-2

Employee Interrogation

5-3

Unacceptable Performance of Civilian Employees

5-6

Ethics

7-3

Professional and Unprofessional Relationships

7-4

Arrest by Civilian Authorities

8-6

Arrests Authorized by the ANG

8-7

Advising Suspects of their Rights

8-9

Confessions

8-10

Driving While Intoxicated and Other Offenses Involving Intoxication

8-17

Discrimination Complaints – Military

9-3

Discrimination Complaints – Technician

9-4

Sexual Harassment

9-8

Consent Urinalysis Tests

10-8

Unauthorized Tape Recordings

14-10

Aerospace Accidents and Safety Investigations Off-Base

16-2

Investigation by Commander of Suspected Minor Offenses

16-10

Investigations and Inquiries

16-11

Child and Spouse Abuse, Maltreatment and Neglect

23-5

Dependent Support

23-10

Counseling

24-7

Nonjudicial Punishment

24-11

Selective Enforcement

24-14

Reports of Survey

25-19

_**Air National Guard Commander's Legal Deskbook**_

575

_**Chapter 16, Investigatory Matters**_

_**Section 16-6 Congressional and Legislative Inquiries**_

_**Page 1**_

**Congressional and Legislative Inquiries**

**Updated by Colonel Bill Rogers, April 2016**

**AUTHORITY** : 10 U.S.C. 1034; AFI 90-301, _Inspector General Complaints Resolution, Chapter 9_ , (IC 6 Jun 12); AFI 90-401, _Air Force Relations with Congress_ (14 Jun 12); AFPD 90-4, _Relations with Congress_ ; AFI 10-503, _Strategic Basing_ (27 Sep 10); Health Insurance Portability and Accountability Act (HIPAA), as required by DoD 6025.18-R, _DoD Health Information Privacy Regulation_ (24 Jan 03); DoD 8580.02-R, _DoD Health Information Security Regulation (12 Jul 07)_ ; and Air Force Instruction (AFI) 41-210, _TRICARE Operations and Patient Administration Functions (06 Jun 12)_ ; Headquarters Operating Instruction (HOI) 33-10, _Suspense and Control of Congressional and White House Correspondence (16 Dec 03)_ ; OpJAGAF 1997/106, _Privacy_ _Act Concerns Regarding Congressional Correspondence_ (16 Sep 97); applicable state law and regulations. 

## INTRODUCTION

The Air National Guard receives a substantial number of legislative inquiries each year from United States Senators and

Representatives of Congress, as well as state legislators. Because of the National Guard's dual state and federal missions,

the Guard must be responsive to both state and federal legislators. All legislative inquiries, regardless of source, must be handled promptly, with proper coordination, and with appropriate sensitivity.

**POLICY**

Air Force and Air National Guard policy is to cooperate fully with Congress, and to give full and timely responses to con-

gressional inquiries, subject to the following limitations:

1. **Classified information must be properly safeguarded.** It can be given to Congress only with the consent of the Secretary of the Air Force (SAF). SAF has designated the Security and Policy Review office (SAF/PA) as the approval author-

ity for release of Air Force classified information to Congress. Refer congressional requests for classified information to

SAF/PA through SAF/LL or SAF/FMBL. Air Force officials may not disclose classified information to Congress for re-

lease to a congressional constituent.

2. **Information designated as "For Official Use Only" (FOUO)** generally may not be disclosed to the public if that in-

formation falls within exemptions 2 through 9 of the Freedom of Information Act (5 U.S.C. 552). However, the Air Force

or Air National Guard may release such information to chairpersons or ranking minority members of congressional com-

mittees or subcommittees if the information relates to matters within their jurisdictions. An Air Force official who de-

cides the information should not be released to the congressional committee must staff the congressional request for in-

formation with a recommendation to the Secretary of the Air Force through SAF/LL or SAF/FMBL.

3. **Personal information about individual Air Force or Air National Guard members** must be processed according to

the guidelines of the federal Privacy Act (5 U.S.C. 552a); AFI 33-332, The Air Force Privacy and Civil Liberties Program;

as protected health information (PHI) by Air Force medical organizations which meet the definition of a covered entity

pursuant to HIPAA; and in compliance with applicable state law and regulations. Without an individual's written con-

sent to release information, the Air Force may provide only general information about the individual. However, the Air

Force may disclose an individual's records without the consent of the individual member when the information is re-

quested by the chairperson or ranking minority member of a committee or subcommittee of Congress, if the information

relates to matters within the committee's jurisdiction. When making such a disclosure, the Air Force must inform the

committee or subcommittee members about any sensitive information or PHI and the need to safeguard it.

4. **Locally sensitive information** , such as information on changes in status of units, installations and industrial facilities, which may have an impact on state and congressional districts. Therefore, Air Force officials must not release any

information governed by AFI 10-503, _Strategic Basing_ , September 27, 2010, without the proper authorization. Command-

ers should check with SAF/LL or SAF/FMBL prior to release.

_**Air National Guard Commander's Legal Deskbook**_

576

_**Chapter 16, Investigatory Matters**_

_**Section 16-6 Congressional and Legislative Inquiries**_

_**Page 2**_

**COMMANDER'S RESPONSIBILITIES**

**Communication:** Commanders will designate an appropriate point of contact for congressional inquiries and provide

that information to their respective MAJCOM legislative affairs function. Commanders will establish procedures to in-

form and provide a copy of all correspondence and draft responses to SAF/LL or SAF/FMBL and the parent MAJCOM

within 24 hours of receipt. For an inquiry received by telephone, transcribe and email it within 24 hours of receipt or by

the first duty day following a weekend or holiday, including contact information for the person filing the inquiry.

**Inquiries containing Inspector General (IG) Issues:** For IG issues contained in congressional inquiries ( _i.e.,_ reprisal, restriction, improper mental health evaluation referral, and allegations against an IG or an IG process), the receiving IG

will notify SAF/IGQ through their MAJCOM, NAF, JFHQ, FOA, and DRU IG within 24 hours of receipt of the inquiry.

SAF/IGQ will notify SAF/LLI.

**Visits _by_** **Congress:** Commanders and staff agency chiefs should inform or coordinate with SAF/LL or SAF/FMBL on all matters of congressional interest including participation in local activities with members of Congress or staff. Commanders may extend an invitation to visit their respective installation to the district congressional office. Invitation to D.C.

congressional offices should be worked through the Air Force Senate Liaison office (SAF/LLS), Air Force House Liaison

Office (SAF/LLH), and the Air Force Congressional Action Division (SAF/LLZ). Photographic documentation of congres-

sional visits to Air Force installations and facilities is required. When photography is completed, the host PA organiza-

tion must send a digital copy of each image to SAF/LL or SAF/FMBL within 24 hours.

**Visits _to_** **Congress:** First-term wing commanders are required to visit their congressional delegations annually. Commanders will work directly with SAF/LLZ to coordinate the details of the visit.

**Candidates for Political Office:** Commanders should encourage and welcome visits by candidates seeking to receive

briefings, tours, or other official DoD information. However, interaction with candidates for political office must not im-

ply or appear to imply sponsorship, approval, or endorsement of candidates or political views; including, the use of instal-

lation facilities by any candidate for political campaign or election events. This prohibition does not apply to the Presi-

dent, Vice President, or Speaker of the House of Representatives.

**INDIVIDUAL COMMUNICATIONS**

Commanders sometimes become concerned when individual Guard members write to, or otherwise contact, their Sena-

tor or Representative about a problem with the unit. Federal law (10 U.S.C. 1034), DoDD 7050.06, and AFI 90-301 pro-

vide that no person may restrict any member of an armed force in communicating with a member of Congress. Some

states may have similar provisions with regard to the state legislature.

**LEGISLATIVE LIAISON OFFICERS**

Along with National Guard Bureau and the Secretary of the Air Force legislative liaison functions, many states will have

Washington congressional liaison offices. These offices may be the source of some congressional inquiries and may assist

commanders in dealing with Congress. State agencies that oversee the National Guard may have legislative liaison offices

to deal with inquiries from Congress and from state legislators. Effective use of these resources can make it easier for

commanders to respond to legislative inquiries.

**STAFF JUDGE ADVOCATE ASSISTANCE**

A unit's staff judge advocate is an additional resource for dealing with congressional and legislative inquiries. JAGs are

familiar with the legal and policy issues that may be of concern to congressmen and legislators, and have information

about restrictions on disclosure of information under the Privacy Act, HIPAA, and applicable state laws and military regu-

lations. Commanders should consult with their JAGS for assistance in answering congressional and legislative inquiries.

_**Air National Guard Commander's Legal Deskbook**_

577

_**Chapter 16, Investigatory Matters**_

_**Section 16-6 Congressional and Legislative Inquiries**_

_**Page 3**_

_**KWIK-NOTE: Commanders should consult and coordinate with their JAGs and their state ANG headquarters to ensure**_

_**prompt, consistent, coordinated, and accurate responses to congressional and legislative inquiries.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

State ANG Headquarters

2-8

Whistleblower Protection Act

5-9

Political Activities

7-12

Classified Material

14-2

"For Official Use Only"

14-3

Access to Military Records

14-4

Subpoenas and Consensual Release of Records

14-6

Freedom of Information Act

14-11

Privacy Act

14-12

Freedom of Expression – Restrictions on Military Members

14-13

Freedom to Complain – Military Members

16-8

Investigations and Inquiries

16-11

Visits to United States Congress

27-14

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_**Chapter 16, Investigatory Matters**_

_**Section 16-7 Fraud, Waste and Abuse**_

_**Page 1**_

**Fraud, Waste, Abuse and Gross Mismanagement**

**Updated by Colonel Bill Rogers, April 2016**

**AUTHORITY** : AFI 90-301, _Inspector General Complaints Resolution_ (27 Aug 15); AFPD 90-3, _Inspector General – The Complaints Program_ (24 Oct 13); DoDD 7050.1, _Defense Hotline Program_ (17 Dec 07); _Inspector General Guide to Fraud, Waste, or_ _Abuse Awareness_ (Sep 14, available at: http://www.af.mil/Portals/1/documents/ig/FWA_Guide_Final.pdf ). 

## INTRODUCTION

The Air Force Fraud, Waste, and Abuse (FWA) prevention, detection, and remedies program is set forth in Air Force In-

struction 90-301, and also includes gross mismanagement. The Air Force policy on FWA is to use all available means to

prevent, detect, and correct instances of FWA; to appropriately discipline perpetrators involved in FWA activities; and to

recoup, if possible, losses of cash, property, and services resulting from FWA. It is against Air Force policy for any military member or civilian employee to engage in FWA. Air Force military and civilian members have a duty to promptly

report FWA or gross mismanagement; violations of law, policy, procedures, or regulations; an injustice; abuse of author-

ity; misconduct; inappropriate conduct; deficiencies or like conditions, to an appropriate supervisor or commander, to an

IG or other appropriate inspector, or through an established grievance channel.

**COMMANDER'S RESPONSIBILITIES**

Commanders at all levels _must actively promote_ the efficient, effective, and legitimate use of government resources under their control. To do so, _commanders will_ :

1. Establish a proactive FWA program that systematically reviews operations and processes to detect deficiencies, mini-

mize waste, emphasize economy, and identify/correct potential fraud or abuse.

2. Designate within the organization, at appropriate levels, FWA Program monitors responsible for regularly assessing

the FWA climate of the organization and elevating potential FWA issues to the appropriate level of command for review

and action.

3. Educate all assigned personnel on what constitutes fraud, waste, and abuse with an emphasis on process improve-

ment, adherence to AF core values, and prompt reporting of suspected violations.

4. Encourage personnel to elevate/report FWA concerns to command or supervision.

5. Maintain open communication channels through development of an organizational culture that discourages reprisal or

retaliation against any individual making a FWA disclosure.

**DEFINITIONS**

**Fraud (Key Phrase – _Intentional Deception_** **)** \- Any intentional deception designed to unlawfully deprive the Air Force of something of value or to secure from the Air Force a benefit, privilege, allowance, or consideration to which an individual

is not entitled, including, but not limited to:

1. The offer, payment, acceptance of bribes or gratuities, or evading or corrupting inspectors or other officials;

2. Making false statements, submitting false claims, or using false weights or measures;

3. Deceit, either by suppressing the truth or misrepresenting material facts, or to deprive the Air Force of something of

value;

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_**Section 16-7 Fraud, Waste and Abuse**_

_**Page 2**_

4. Adulterating or substituting materials, falsifying records, and books of accounts;

5. Theft or diversion of resources for personal or commercial gain;

6. Conspiring to carry out any of the above actions; and,

7. Conflict of interest cases, criminal irregularities, and the unauthorized disclosure of official information relating to procurement and disposal matters.

**Waste (Key Phrase – _Deficient Practices_** **)** \- The extravagant, careless, or needless expenditure of Air Force funds or the consumption of Air Force property resulting from deficient practices, systems controls, or decisions. The term also includes improper practices not involving prosecutable fraud.

**Abuse (Key Phrase – _Intentional Deception or Misuse of Authority_** **)** \- The intentional or improper use of government resources that can include the excessive or improper use of one's position, in a manner contrary to its rightful or legally intended use. Examples include misuse of rank, position, or authority or misuse of DoD resources.

**Gross Mismanagement (Key Phrase – _Blatant Management Action Creating Substantial Risk of Mission Failure_** **)** \- A management action or inaction that creates a substantial risk of significant adverse impact on the agency's ability to accomplish its mission. It is more than mere, trivial wrongdoing or negligence. It does not include management decisions

that are merely debatable, nor does it mean action or inaction that constitutes simple negligence or wrongdoing. There

must be an element of blatancy.

**INVESTIGATIONS**

**Fraud** – Involving suspected criminal acts, contact either AFOSI or Security Forces, IAW AFI 71-101, volume 1, attach-

ment 2. If they decide not to investigate, obtain a documented transfer back to the IG, and consult with the Legal Office.

**Waste** – After consultation with the IG, conduct an internal or external inspection, initiate a Commander-Directed Investigation (CDI), or undertake an Air Force Smart Operations (AFSO) 21 Continuous Process Improvement or 8-step Prob-

lem Solving event.

**Abuse** – After consultation with the IG, determine whether the matter will be investigated by the IG or initiate a CDI.

**Gross Mismanagement** \- After consultation with the IG, conduct an internal or external inspection, initiate a

Commander-Directed Investigation (CDI), or undertake an Air Force Smart Operations (AFSO) 21 Continuous Process

Improvement or 8-step Problem Solving event.

**OVERSIGHT RESPONSIBILITIES**

The Air Force Inspector General system is the focal point for the FWA program. AFI 90-301 establishes an independent

IG at all active duty and AFRC installations, although ANG associate units on active Air Force installations may use the

host installation IG for complaints and assistance.

One of the chief duties of the ANG installation IG is establishing an active and effective FWA program. IGs are expected

to establish an Installation Hotline for reporting suspected FWA and to publicize the availability of both the installation

hotline and the DOD Hotline Controls. Complainants are encouraged to resolve complaints of FWA issues at the lowest

possible level using command channels before addressing them to a higher level or the IG.

_**KWIK-NOTE: Commanders must promptly investigate and eliminate Fraud, Waste and Abuse.**_

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_**Section 16-7 Fraud, Waste and Abuse**_

_**Page 3**_

**RELATED TOPICS:**

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**SECTION**

Command Influence

2-2

Ethics

7-3

Criminal Investigations, Prosecutions and Reporting –DOD and DOJ

8-12

OSI and SF Reports

8-14

Inspector General

16-9

Contracting Pitfalls

25-8

Reports of Survey

25-19

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_**Chapter 16, Investigatory Matters**_

_**Section 16-8 Freedom to Complain - Military Members**_

_**Page 1**_

**Freedom to Complain - Military Members**

**Updated by Colonel Bill Rogers, April 2016**

**AUTHORITY** : 10 U.S.C. 1034; AFI 51-904, _Complaints of Wrongs under Article 138, Uniform Code of Military Justice_ ; AFI 90-301, _Inspector General Complaints Resolution_ (27 Aug 15); DoDD 7050.06, _Military Whistleblower Protection_ (17 Apr 15). 

## INTRODUCTION

The Air National Guard permits, and even encourages, its military members and civilian employees to lodge complaints

of alleged wrongdoing. Inquiries or investigations concerning complaints of fraud, waste and abuse, discrimination, in-

cluding sexual harassment, ethics, environmental violations, and civilian labor problems have become common occur-

rences in today's Guard. Additionally, complaints are made to the Inspector General (IG)and to members of Congress,

resulting in inquiries and investigations. Military members can also file a complaint of wrongs concerning their com-

mander's conduct toward them. Under federal and applicable state Whistleblower Protection laws, civilian employees

and military members are protected from retaliation when they do lodge complaints.

**DOD POLICY**

1. Servicemembers are free to make protected communications.

2. No person will restrict a military member from making lawful communications to a member of Congress or the IG.

3. Servicemembers will be free from reprisal for making or preparing to make or being perceived as making or preparing

to make a protected communication.

4. No person may take or threaten to take an unfavorable personnel action or withhold or threaten to withhold a favor-

able personnel action in reprisal against any military member for making or preparing to make, or being perceived as

making or preparing to make a protected communication. There does not have to be an actual communication; a military

member who is suspected ('perceived') as making a protected communication or is in the process of preparing to make a

protected communication is protected by DOD Policy.

**WHISTLEBLOWER PROTECTION AGAINST REPRISAL**

1. Members of the armed forces shall be free from reprisal for making or preparing to make a protected communication.

2. No person may take (or threaten to take) an unfavorable personnel action; or withhold (or threaten to withhold) a fa-

vorable personnel action as reprisal against a member of the armed forces for making or preparing, or being perceived as

making or preparing, to make a protected communication.

A **Protected Communication** includes:

1. Any lawful communication to a Member of Congress or an IG. Note that unlawful communications are not protected,

such as a violation of the UCMJ or a violation of other applicable criminal statutes. Some examples of unlawful communi-

cations include knowingly false statements; unauthorized disclosures of classified, privileged, or private information; ob-

scene statements; threatening statements; and statements made under circumstances disrespectful to higher authorities.

2. A communication in which a member of the Armed Forces communicates information the member reasonably be-

lieves evidences a violation of law or regulation, including a law or regulation prohibiting rape, sexual assault, or other

sexual misconduct in violation of Articles 120 through 120c of the Uniform Code of Military Justice. It also includes sex-

ual harassment, unlawful discrimination, gross mismanagement, a gross waste of funds or other resources, an abuse of

authority, a substantial and specific danger to public health or safety, or a threat by another member of the armed forces

or employee of the federal government that indicates a determination or intent to kill or cause serious bodily injury to

members of the armed forces or civilians or damage to military, federal, or civilian property, when such communication is

made to any of the following (this list is not all inclusive):

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_**Page 2**_

a. Members of Congress or members of their staffs,

b. An Inspector General or a member of the Inspector General's staff,

c. Personnel assigned to DoD audit, inspection, investigation, law enforcement, equal opportunity, safety, sexual assault

prevention and response designees, and EO personnel, or family advocacy organizations,

d. Any person in the member's chain of command,

e. The Chief Master Sergeant of the Air Force, command chiefs, group/squadron superintendents, and first sergeants, or,

f. A court-martial proceeding.

3. Testimony, or otherwise participating in or assisting in an investigation or proceeding related to a communication un-

der part 1 or 2 above, or filing, causing to be filed, participating in, or otherwise assisting in an inquiry/investigation of a reprisal and/or restriction complaint.

**State Whistleblower Laws**

State whistleblower laws often provide an additional avenue of redress for complainants and, in many instances, offer

greater protection ( _e.g._ , confidentiality), in addition to federal law.

**THE COMPLAINT**

DoD/IG must be notified (through SAF/IGQ) within 10 duty days from the date an IG receives a complaint containing

allegations of reprisal. To meet DoD/IG's 10-day notification requirement, IGs at all levels will notify SAF/IGQ through

their MAJCOM, NAF, JFHQ, FOA, or DRU IG within seven duty days.

Each State and Territory is authorized a command IG from the Active Component who reports directly to The Adjutant

General (TAG) of the State and the Chief, National Guard Bureau. National Guard personnel who are unable to resolve

matters via either their State Chains of Supervision/Leadership/Command and choose to contact an IG should contact

the IG in the State to which they are assigned. To have an IG begin work on a matter, prior to contacting the IG, person-

nel complete an IG Action Request (DA Form 1559) and attach all supporting documents for submission to the local IG.

**THE PROCESS AND RECENT CHANGES**

On December 26, 2013, President Obama signed into law section 1714 of the National Defense Authorization Act for

Fiscal Year 2014, overhauling the Military Whistleblower Protection Act of 1988. As the first significant changes since

10 U.S.C. 1034 were enacted in 1988, the changes included:

1. Extending the statute of limitations for filing a complaint from 60 days to one year,

2. Those protected from making disclosures now include military members testifying to congressional and law enforce-

ment staff, courts, grand jury, and court-martial proceedings.

3. Loopholes were eliminated which previously disqualified otherwise-qualifying protected communications if someone

previously disclosed the same misconduct or any oral disclosures; challenges to whistleblower motives; and whether the

disclosure was made while on- or off-duty.

4. Prohibited personnel actions were expanded to include removal or threatening the removal of duties inconsistent with

rank.

5. Service-specific IG investigations into reprisal had to be handled at a higher headquarters level than the one where al-

leged harassment occurred.

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_**Page 3**_

6. If a military member is not satisfied by IG action, each member has the right to a Board for Correction of Military Re-

cords (BCMR) administrative due process hearing.

If IG complaint analysis determines that investigation is warranted, the investigation is initiated by the Air Force. If the complaint analysis determines that further investigation is not warranted, a copy of the analysis must be forwarded to

SAF/IGQ, which will in turn provide it to DoD/IG for review. If DoD/IG concurs, the case is closed and the complainant

is notified of the result through Air Force channels. If DoD/IG disagrees, it may either retain the case for investigation or task the Air Force to conduct an investigation. Copies of all completed reprisal investigations conducted by the Air Force

must be forwarded to DoD/IG (through SAF/IGQ) for review and approval. The Air Force guidance provides that com-

manders do not have to wait for completion of the DoD/IG review before taking appropriate corrective action. After

DoD/IG approval, complainants are notified of the results of the investigation through Air Force channels.

**THE ANALYSIS**

Commanders should understand how the IG looks at reprisal complaints. The test utilized is sometimes referred to as

the 4-point test or the "Acid" test:

1. Did the military member make or prepare a communication protected by statute?

2. Was an unfavorable personnel action taken or threatened, or was a favorable action withheld or threatened to be with-

held, following the protected communication?

3. Did the official or officials responsible for taking, withholding, or threatening the personnel action know about the protected communication?

4. Does the evidence establish that the personnel action would have been taken, withheld, or threatened if the protected

communication had not been made?

If an investigation does not substantiate (see definition, below) an allegation, the IO will then proceed with the Acid Test to determine whether the adverse personnel action was otherwise an "abuse of authority."

**THE RESULT**

**Substantiated**

A "substantiated" finding results when a preponderance of the evidence supports the complainant's allegation of a wrong

or violation of law, regulation, procedure, or AF policy or standards. The facts (from documentation and testimony) indi-

cate the complainant was wronged or a violation of standards occurred.

**Unsubstantiated**

A "not substantiated" finding results when a preponderance of the evidence supports the conclusion the alleged wrongdo-

ing did not occur. The facts indicate no violation of standards occurred. If the official responsible for taking, withholding or threatening the action did not know about the protected communication, then reprisal cannot be substantiated.

**Reality Check**

In cases where reprisal cannot be substantiated, the after-effects can nonetheless be painful. In the process of the investigation, commanders, senior NCOs, supervisors, and other military members or civilian employees have been accused of

wrongdoing, and have been stigmatized, and in some cases, even vilified by these accusations. Sometimes the complain-

ant is regarded as a stable and even model member, and sometimes not.

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**Relationship between a Reprisal Complaint and Disciplinary Action**

The Military Whistleblower Protection Act was meant to ensure military members are protected from reprisal. It was not

meant to dissuade commanders and supervisors from taking timely and appropriate corrective actions for legitimate rea-

sons. Make sure commanders, supervisors, and investigators at your installation understand the difference and act accord-

ingly. Because this is a very delicate area of law and procedure, discussing potential disciplinary actions with your SJA is advised.

**Unsubstantiated Allegations – Consequences for the Complainant**

Regardless of who the complainant is, and regardless of the nature of the complaint, after it has been determined to be

unfounded, the persons accused justifiably want to know what they can do about the complainant who has "dragged

their name through the mud" and put them through the upset and anxiety of enduring an inquiry or investigation which

has turned out to be "nothing." The answer, unfortunately, is "not much." Remember, just because an allegation could

not be substantiated does not mean it constitutes a false statement or was made with reckless disregard for the truth.

Attempting to discipline a complainant after an allegation is not substantiated might well be snatching defeat from the

jaws of victory – the person issuing the disciplinary action likely committed a subsequent act of reprisal.

AFI 90-301 does offer some solace in paragraph 2.5.4, 'Complainants providing information to the Air Force IG system

must understand they are submitting official statements within official Air Force channels. Therefore, they remain sub-

ject to punitive action (or adverse administrative action) for knowingly making false statements and for submitting other

unlawful communications. Additionally, unless otherwise protected by law, any information complainants provide to the

IG is subject to release during or after the IG inquiry.' But prudence is the touchstone – temper pride and ego, and con-

sult with the staff judge advocate prior to issuing punitive or adverse action.

Civilly, subjects of an unfounded complaint can try to bring a lawsuit against the complainant under applicable state law,

perhaps based on some form of defamation of character or damage to their reputation. But it would have to be a private

civil action with which a military attorney cannot assist.

Most often, the best course is to just let it pass. Time heals. The only peace of mind may be to just chalk it up to the

price that regrettably sometimes has to be paid for being a leader.

**Complaints of Wrongs under Article 138, Uniform Code of Military Justice**

AFI 51-904 states, repeating much of the language of UCMJ Article 138:

Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due applica-

tion to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall for-

ward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made.

The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for

redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement

of that complaint, with the proceedings had thereon.

In summary, an Article 138 complaint is a formal complaint against a commanding officer. Any member of the Armed

Forces who believes the member has been wronged by the member's commanding officer and, subsequently, the com-

manding officer has refused to equitably resolve the complaint ('grant redress'), may complain to any superior commis-

sioned officer who, where the requested relief has been denied in whole or in part, must forward the submission to the

General Court-Martial Convening Authority (GCMCA) who _currently_ exercises GCMCA jurisdiction over the commander

against whom the initial application for redress was made.

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_**Section 16-8 Freedom to Complain - Military Members**_

_**Page 5**_

Per AFI 51-904, Article 138 complaints from members of the Air National Guard and Air Force Reserve are limited to

allegations arising from a discretionary act or omission by a commander that was done in connection with a period of the

member's federal service on active duty as well as any period of federal service on inactive-duty training.

Regardless of whether a member is in a qualifying federal status giving them standing to file an Article 138 complaint,

the commander should coordinate with the Staff Judge Advocate to respond to the complaint in writing, even if it to indi-

cate that a determination has been made that the Article 138 is not available to the member because there is no federal-

service nexus.

Practical advice – look at the substance of the underlying complaint. If a member puts in the effort to research and draft

an Article 138 complaint, the member is likely to pursue the relief requested through other channels if the only reason

for the denial is the lack of federal status. A good lead-in to the response might be, 'While it does not appear that you

were in the requisite federal status when the allegations described in your letter occurred rendering this matter ineligible for resolution under UCMJ Article 138 and AFI 51-904, I have reviewed your allegations and [have directed they be investigated][was aware of the underlying facts and circumstances and previously determined there was no merit][have re-

ferred this matter to...].'

_**KWIK-NOTE: Allegations of Reprisal are properly investigated by those higher up the chain of command rather than by the**_

_**individuals who are the subject of the complaint. Upchannel such complaints immediately through IG or command channels**_

_**for follow on action or investigation.**_

**RELATED TOPICS:**

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**SECTION**

Labor Relations

5-5

Whistleblower Protection Act

5-9

Ethics

7-3

Complaint of Wrongs

8-20

Discrimination Complaints – Military

9-3

Discrimination Complaints – Technician

9-4

Equal Opportunity and Treatment Program

9-5

Nondiscrimination in Federally Assisted Programs

9-6

Sexual Harassment

9-8

Criminal Liability of Commanders for Environmental Violations

12-2

Environmental Duties at Base Level

12-3

Freedom of Expression – Restrictions on Military Members

14-13

Congressional and Legislative Inquiries

16-6

Fraud, Waste and Abuse

16-7

Inspector General

16-9

Investigation by Commander of Suspected Minor Offenses

16-10

Investigations and Inquiries

16-11

Quality Force Management Actions

24-12

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 16, Investigatory Matters**_

_**Section 16-9 Inspector General**_

_**Page 1**_

**Inspector General (IG)**

**Updated by Major Patty Thompson, April 2016**

**AUTHORITY** : AFI 90-301, _Inspector General Complaints Resolution_ (27 Aug 15). 

## INTRODUCTION

This section provides basic information regarding appointing authorities for IG investigations, the authority and role of

IGs, special processing requirements, and the release of IG records. It also explains how JAGs assist IGs and provides

guidance on cases handled by IGs, which include reprisal, restriction and abuse of authority.

Pursuant to AFI 90-301, _Inspector General Complaints Resolution_ , 27 Aug 15, the authority to direct an IG investigation is vested only in individuals holding certain positions. This authority is referred to as appointing authority. Appointing

authorities have the authority to direct investigations, appoint Investigating Officers (IOs), and make final determina-

tions on the findings of investigations directed under their authority. In addition to the Secretary of the Air Force, the

Chief of Staff and the IG of the Air Force, authorized appointing authorities also include the following:

\- Chief, National Guard Bureau, State Adjutants General, and State Assistant Adjutants General for Air;

\- MAJCOM, FOA, DRU, NAF, center, wing, and joint base commanders (active and AFRC);

\- MAJCOM, JFHQ, FOA, DRU, NAF, center, NGB, ANGRC, and Wing IGs, **if designated in writing by** their respective

commander.

Independent installation IGs will be established at all active duty, Air Force Reserve, and Air National Guard (ANG)

wings. ANG units that are associate units on active Air Force installations may use the host installation IG for com-

plaints and assistance. Appointing authorities will not initiate investigations into allegations against themselves or their commander; such allegations are transferred to the next higher-level IG for resolution.

**AIR FORCE IG's AUTHORITY**

AFI 90-301 states the IG Complaints Resolution Program may not be used for matters usually addressed through other

established grievance or appeal channels, unless there is evidence those channels mishandled the matter or process. If a

policy directive or instruction provides a specific means of redress or appeal of a grievance, complainants must exhaust

those procedures before filing an IG complaint. Complainants must provide some relevant evidence that the process was

mishandled or handled prejudicially before IG channels will process a mishandling complaint. Mere dissatisfaction or dis-

agreement with the outcome or findings of an alternative grievance or appeal process is not a sufficient basis to warrant

an IG investigation. IGs handle complaints involving reprisal, restriction and IG wrongdoing. AFI 90-301, Table 3.6, sets

out the types of investigations not the proper subject of an IG complaint including, but not limited to, the following:

*Commander-Directed Investigations (CDIs)

*Equal Employment Opportunity and Military Equal Opportunity issues

*ANG Statutory Tour Program issues

*ANG Active Guard/Reserve issues

*Article 138, Uniform Code of Military Justice, issues.

**THE ROLE OF THE INSTALLATION IG**

The installation IG is to be the "eyes and ears" of the commander. The IG keeps the commander informed of potential

areas of concern as reflected by trends based on analysis of complaint data. He/she is expected to function as the

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ombudsman, fact-finder, and honest broker in the resolution of complaints. Additionally, the IG is to educate and train

commanders and members of the base population on their rights and responsibilities concerning the Air Force IG sys-

tem. Finally, the IG's job is to help commanders prevent, detect, and correct fraud, waste and abuse (FWA), and gross

mismanagement.

To fulfill these roles, the IG must be an integral member of the commander's staff and have free access to the com-

mander. Commanders must ensure their IG's authority, duties, and responsibilities are clearly delineated. The independ-

ence of the IG must be firmly established and supported to overcome any perceived lack of autonomy that would discour-

age potential complainants and preclude wrongdoing from being disclosed to the IG. The concept of separate full-time

host wing IGs was implemented to remove any perceived conflict of interest, lack of independence, or apprehension by

Air Force personnel as a result of a previous practice of assigning vice commanders IG duties. To sustain a trustworthy

relationship with Air Force personnel, the host wing IG must be independent. Air Force and ANG personnel must be

free from any form of retribution, retaliation, or reprisal for communicating with the host wing IG. Where appropriate,

the IG should afford complainants anonymity or confidential consideration. The focus of host/wing IGs must be the Air

Force Complaints Resolution, Inspection and FWA Programs. Any activities that may diminish the effectiveness of IGs

in the performance of their complaints resolution and FWA responsibilities are not acceptable.

Newly assigned IGs and IG staff members are required to attend the IG Training Course, and must do so within 90 days

of assignment. Training will be coordinated through the parent-level command IG. ANG wing IGs must be appointed in

writing by the wing commander (or equivalent) as the IG before attending the course. IGs at all levels are required to pro-

vide investigative training and oversight to all individuals appointed as IOs for IG investigations.

**SPECIAL PROCESSING REQUIREMENTS**

Reprisal and restriction complaints have unique reporting requirements as set forth in AFI 90-301.

**ONLY** the Senior Officials Directorate, SAF/IGS, handles complaints against senior officials, consisting of officers in the grade of O-7 select and above, ANG colonels with a certificate of eligibility, and current or former members of the Senior

Executive Service or equivalent and current or former Air Force civilian Presidential appointees. Complaints involving

senior officials should be reported immediately to SAF/IGS.

All complaints, regardless of the nature of the allegation, alleging O-6 misconduct (even if handled by a CDI) must be

reported to the Complaints Resolution Directorate (SAF/IGQ).

All substantiated findings of wrongdoing resulting from any type of investigation or inquiry against O-6s and/or adverse

information ( _e.g.,_ Letter of Counseling (LOC), Letter of Admonishment (LOA), Letter of Reprimand (LOR), Article 15

punishment), regardless of whether there was a formal investigation or inquiry, against O-6s must be reported to SAF/

IGQ.

All substantiated findings of wrongdoing resulting from any type of investigation or inquiry against O-4s and O-5s and/

or adverse information ( _e.g._ , LOC, LOA, LOR, Article 15 punishment), regardless of whether there was a formal investigation or inquiry, against O-4s and O-5s must be reported to SAF/IGQ.

**RELEASE OF IG RECORDS**

The Air Force Inspector General (SAF/IG) has the authority to release IG records within the Department of Defense

(DoD) and the Air Force to those requiring access to the records in the performance of their official duties. Only SAF/IG,

or designated representatives, can approve release of IG documents outside IG channels. SAF/IG grants access to IG re-

cords as detailed in Chapter 13 of AFI 90-301.

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**HOW JAGs ASSIST IN IG CASES**

JAGs advise IOs throughout the IG investigation. They help IOs identify allegations of wrongdoing and assist in framing

allegations. It is very important to frame the allegations correctly. JAGs provide comments and recommendations on the

Report of Investigation (ROI). They remind commanders of their responsibility to adhere to the special processing re-

quirements set out above. JAGs also write a legal review after the ROI is complete – a JAG that did not advise the IO.

JAGs also provide comments and recommendations to commanders concerning ROIs.

**JAG RESOURCES**

Headquarters Air Force, Administrative Law Directorate, HQ AF/JAA, is the office that provides legal support and over-

sight on IG cases in the field. Helpful resources for JAGs may be found on the HQ AF/JAA secure website at

https://intelshare.intelink.gov/sites/afjaa/IG/_layouts/15/start.aspx#/default.aspx,  and contact information for HQ AF/

JAA personnel may be found on Federal Legal Information Through Electronics (FLITE).

**REPRISAL**

As previously mentioned, IGs handle complaints involving reprisal. Reprisal is a violation of federal law, 10 U.S.C.

§1034. Reprisal occurs when a responsible management official (RMO) takes (or threatens to take) an unfavorable per-

sonnel action (UPA) or withholds (or threatens to withhold) a favorable personnel action for making or preparing or be-

ing perceived as making or preparing to make a protected communication (PC). RMOs include three categories: (1) de-

ciding officials; (2) those who influenced/recommended the action; and (3) approvers/reviewers/endorsers. Personnel

actions include actions that affect **OR** have the potential to affect a military member's current position or career ( _e.g.,_ promotion, disciplinary/corrective action, reassignment, performance report, or a significant change in the duties or respon-

sibilities of a military member not commensurate with the member's grade). There are three types of PCs:

1. Any lawful communication made to a member of Congress or an IG; an unlawful communication is a communication

that itself constitutes misconduct, a violation of the Uniform Code of Military Justice (UCMJ), or a violation of other

criminal statutes ( _e.g.,_ knowingly false statements, unauthorized disclosures of classified information, threatening statements);

2. A communication member reasonably believed to evidence a violation of law or regulation when made to any of the

following (list is not all inclusive): A member of Congress or a member of their staff; an IG or a member of the IG's inves-

tigative staff; personnel assigned to DoD audit, inspection, investigation, law enforcement, equal opportunity, safety, sex-

ual assault prevention and response designees, EO personnel, family advocacy organizations; any person in the member's

chain of command; the Chief Master Sergeant of the Air Force, command chiefs, group/squadron superintendents, and

first sergeants; a courts-martial proceeding;

3. Also, testimony or assistance in an investigation related to one of the other types of PCs, and filing, causing to be

filed, participating in, or otherwise assisting in a reprisal or restriction action.

The following are examples of a PC: A senior master sergeant wishes a senator visiting the base a happy birthday; a ma-

jor tells his commander about what the major reasonably thinks is a threat to flight safety; a senior airman tells her civilian director about what the senior airman reasonably believes to be sexual harassment by her immediate supervisor

against an airman basic.

An acid test must be completed for each reprisal allegation. The format for the reprisal acid test can be found in the sup-

plemental guide to AFI 90-301 – Air Force Complaints Resolution Program Supplemental Guide (AFCRPSG), Attach-

ment 18. The acid test is comprised of the following questions:

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1. Did the military member make, prepare to make, or was perceived as making, a PC?

2. Was a UPA taken or threatened; or was a favorable action withheld or threatened to be withheld following the PC?

3. Did the RMO(s) know about the PC?

4. Does the preponderance of the evidence establish that the personnel action would have been taken, withheld, or threat-

ened if the PC had not been made? When answering the fourth question, the following five questions must be addressed

in the analysis:

a. **Reasons** the RMO took, withheld, threatened or influenced the action;

b. **Reasonableness** of the action taken, withheld, threatened or influenced considering complainant's performance and

conduct;

c. **Consistency** of the actions of RMOs with past practice;

d. **Motive** of the RMO for deciding, taking, withholding or influencing the personnel action; and

e. **Procedural correctness** of the action.

**RESTRICTION**

IGs also handle complaints involving restriction. Restriction is also a violation of federal law, 10 U.S.C. §1034. Restric-

tion is defined as preventing or attempting to prevent a member of the Armed Forces from making or preparing to make

a lawful communications to a member of Congress and/or an IG. An unlawful communication is a communication that

itself constitutes misconduct, a violation of the UCMJ, or a violation of other criminal statutes ( _e.g.,_ knowingly false statements, unauthorized disclosures of classified information, threatening statements). The following is an example of re-

striction: A commander, who is concerned about Airmen addressing squadron issues outside the squadron, says, "You

will bring any problems you have to me before going outside the chain of command."

An acid test must be completed for each allegation of restriction. The format for the restriction acid test can be found in

AFI 90-301, Table 7.2. The acid test is comprised of the following questions:

1. How did the RMO limit or attempt to limit the member's access to an IG or a member of Congress?

2. What was the intent of the RMO? The following questions must be addressed:

a. **Reasons** for restricting or taking actions that created barriers to making PCs;

b. **Reasonableness** of the RMO's actions; and

c. **Motive** for the RMO's action.

3. Would a reasonable person, under similar circumstances, believe he or she was actually restricted from making a law-

ful communication with the IG or a member of Congress based on the RMO's actions?

**ABUSE OF AUTHORITY**

If the preponderance of the evidence indicates no reprisal or restriction is found, the allegation must be analyzed to determine if an abuse of authority occurred. Abuse of authority is defined as an arbitrary and capricious exercise of power

that adversely affects any person or results in personal gain or advantage to the abuser. Arbitrary and capricious is de-

fined as the absence of a rational connection between the facts found and the choice made, constituting a clear error of

judgment. The acid test for abuse of authority can be found in AFCRPSG, Attachment 19. The acid test for abuse of

authority is comprised of the following questions:

1. Did the RMO's actions either:

a. Adversely affect any person? OR

b. Result in person gain or advantage to the RMO?

If questions 1.a and 1.b are both answered "no," then it is not necessary to consider question two. If either part of ques-

tion 1.a or 1.b is answered "yes," the IO must answer question two.

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2. Was the RMO's action either:

a. Outside the authority granted under applicable regulations, law or policy? OR

b. Arbitrary and capricious?

You must use the following factors in your analysis:

1. What were the reasons the RMO took, withheld, or threatened the action?

2. What was the reasonableness of the action taken, withheld, or threatened considering the complainant's performance

and conduct?

3. Were the actions taken by the RMO consistent with actions of the RMO in past practice?

**CONCLUSION**

It is critical for commanders to have a firm understanding of IG investigations, to include knowing what constitutes repri-

sal, restriction, and abuse of authority. JAGs are invaluable resources available to assist commanders and IGs at every

step of IG cases.

_**KWIK-NOTE: Installation IGs must maintain their independence and freedom to function.**_

**RELATED TOPICS:**

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**SECTION**

Board for Correction of Military Records

1-6

Sources of Commander's Authority

2-7

State ANG Headquarters

2-8

Whistleblower Protection Act

5-9

Advising Suspects of their Rights

8-9

Release of Reports of Investigation in Discrimination Complaints to Management Officials

9-7

Privacy Act

14-12

Access to Military Records

14-4

Freedom of Information Act

14-11

Freedom to Complain – Military Members

16-8

Investigations and Inquiries

16-11

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 16, Investigatory Matters**_

_**Section 16-10 Investigations by Commander of Suspected Minor Offenses**_

_**Page 1**_

**Investigation by Commander of Suspected Minor Offenses**

**Updated by Colonel Bill Rogers, April 2016**

**AUTHORITY** : United States Code, Titles 10 and 32; AFI 36-2907, _Unfavorable Information File (UIF) Program_ (26 Nov 14); AFI 51-201, _Administration of Military Justice_ (6 Jun 13); AFI 51-202, _Nonjudicial Punishment_ (31 Mar 15); AFI 51-604, _Appointment to and Assumption of Command_ (11 Feb 16); Uniform Code of Military Justice; Applicable state law or regulation; _Commander-Directed Investigation (CDI) Guide_ (26 Apr 10, at http://www.af.mil/Portals/1/documents/ig/cdi-guide.pdf ).

**STATUS**

Members of the Air National Guard are part of their respective state's militia but, when in Title 10 status, are members

of the federal Air National Guard of the United States (ANGUS). Depending on their status at the time of a suspected

criminal or disciplinary offense, members are subject to different criminal and/or administrative penalties. Only a com-

mander in the same status as the member at the time suspected misconduct is alleged to have occurred can take adminis-

trative or disciplinary action against the member. Deployed ANG members are attached for ADCON purposes to the

201st Mission Support Squadron (Joint Base Andrews), so misconduct allegations against a deployed ANG member

should be referred to the 201 MSS/CC. Civilian misconduct can also be investigated.

**COMMANDER'S ACTION**

If you are aware that a member of the Air National Guard may have committed an offense, you should take appropriate

action after consultation with the Staff Judge Advocate and conducting an appropriate investigation. While the com-

mander initiating an investigation might not be the commander imposing discipline, coordinating with the commander

on G-series orders, with disciplinary authority over the member, early in the process will make for a better investigation

and more equitable result. Generally, because of time constraints and minimal legal complexities, not every allegation of

misconduct has to be investigated through a Commander-Directed Investigation (CDI) but 'less formal' investigations by

supervisors or first sergeants still must comply with basic legal principles of due process and preserve Constitutional

rights of members. In the case of suspected serious criminal offenses, involve the AFOSI or security forces, or local,

state, or federal law enforcement officials. Before making any decision on the handling of a suspected minor or major

offense, commanders should obtain the advice of your Staff Judge Advocate.

**INVESTIGATIVE ACTIONS**

1. Investigate the facts and circumstances surrounding the incident in question as soon as practical after the allegation is received. While this seems like a 'given', the part-time nature of Guard service can quickly cause months to pass before

witnesses are available to be interviewed.

2. Seek 'first-hand' sources where possible; reliance on hearsay evidence is not as desirable but might be necessary. Ob-

tain hand-written statements -- sworn and signed, if possible.

3. Review the facts with the Staff Judge Advocate to determine if there may have been a violation of the Uniform Code of

Military Justice (UCMJ), state military or civilian law, or state regulation. Remember, a member can receive administra-

tive action for actions that are prejudicial to good order and discipline – there does not have to be an underlying criminal offense.

4. Determine the current status of the individual under suspicion, which may have changed since the time of the incident

being investigated.

5. Coordinate with the commander on G-series orders with authority over member at the time of the incident.

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_**Section 16-10 Investigations by Commander of Suspected Minor Offenses**_

_**Page 2**_

6. Determine whether administrative or criminal action is anticipated. Administrative actions are non-punitive in nature

and include, for example, Letters of Counseling or Reprimand. Criminal action generally includes non-judicial punish-

ment ( _i.e.,_ "Article 15") under either the UCMJ or state military code, court-martial under the UCMJ or state military code, or prosecution by federal or state civilian authorities.

7. Interview the subject (only interview subject if matter will not be referred to military or criminal law enforcement):

a. Advise the subject of his or her legal rights under Article 31, Uniform Code of Military Justice or comparable section of the state military code or state military law;

b. Terminate the interview if the suspect requests counsel and arrange for suspect to consult with counsel; and,

c. Allow the subject to present evidence, including identifying witnesses favorable to subject's version of events.

8. Interview additional witnesses to complete the investigation.

9. Evaluate the reliability of the evidence and, if the G-series commander, take appropriate action consistent with the gov-

erning state or federal laws and regulations.

**CHOICES OF ADVERSE ACTION**

Some commanders may want to court-martial ANG members under the UCMJ. However, ANG members may only be

prosecuted under the UCMJ for offenses committed while on active duty under Title 10. If an ANG member commits a

UCMJ offense while on active duty but subsequently goes off active duty prior to being charged under the UCMJ, it may

be possible to involuntarily recall the member to active duty for purposes of a UCMJ prosecution. You should consult

your Staff Judge Advocate (SJA) if you are presented with such a situation. For most purposes, ANG members serve un-

der the authority of Title 32, not Title 10. As a result, they are subject solely to the jurisdiction of the State military code, if any, for military offenses committed while in Title 32 or state active-duty status. Depending on the offense committed, the member may also be subject to prosecution under federal and/or state civilian law.

While a commander with jurisdiction over a member who has committed an offense has broad discretion to determine

the type of action proposed and the severity of the punishment anticipated, the commander's action must be tempered,

well-conceived, just, and conducive to good discipline. Since the status of National Guard members is critical in defining

the scope of the commander's options to discipline members, the commander should review the investigative file with

the supporting SJA before taking administrative or disciplinary action. The SJA is charged with advising and assisting the

commander in evaluating disciplinary options but the final decision remains with the commander.

_**KWIK-NOTE: In most cases, the commander who would take adverse action against the offender should NOT personally per-**_

_**form investigations.**_

**RELATED TOPICS:**

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**SECTION**

Military Justice Jurisdiction – ANG Members in Title 10 Status

8-2

Advising Suspects of their Rights

8-9

Courts-Martial

8-15

Status of National Guard Members

11-7

Commander's One-on-One Meeting with Member – Precautions

16-5

Investigations and Inquiries

16-11

Admonitions and Reprimands – Administrative

24-5

Nonjudicial Punishment

24-11

Unfavorable Information Files (UIF)

24-16

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_**Chapter 16, Investigatory Matters**_

_**Section 16-11 Investigations and Inquiries - CDIs**_

_**Page 1**_

**Investigations and Inquiries - Commander-Directed Investigations**

**Updated by Colonel Bill Rogers, April 2016**

**AUTHORITY** : AFI 90-301, I _nspector General Complaints Resolution_ (27 Aug 15); _Commander-Directed Investigation (CDI) Guide_ (26 Apr 10, available at http://www.af.mil/Portals/1/documents/ig/cdi-guide.pdf);  _Inspector General Guide for Investigating_ _Officers_ (Feb 2012, available at http://www.af.mil/Portals/1/documents/ig/investigating-officers-guide-2012.pdf); Investigating Officer Overview Course (https://golearn.csd.disa.mil). 

## INTRODUCTION

Air Force Instruction 90-301, _Inspector General Complaints_ , formally recognizes commanders have inherent authority, based upon military custom and tradition, to investigate matters within their own commands, unless preempted by a higher

authority. The primary purpose of a CDI is to gather, analyze, and record relevant information about matters of primary

interest to command authorities. Ultimately, CDIs help the commander ensure mission capability of the unit. CDIs are

the sole prerogative of command and no other authority is required. They are intentionally conducted outside Inspector

General channels, and AFI 90-301 indicates it is not to be cited as authority for a CDI since its use would undermine the

commander's inherent right to direct investigations. There is no official format for conducting the investigation but com-

manders are encouraged to use the SAF/IG-promulgated CDI and IO guides. CDIs should be conducted at an echelon of

command capable of conducting a complete, impartial, and unbiased investigation.

Commanders will not:

1. Investigate allegations of reprisal, restriction, or Improper Mental Health Evaluation (IMHE) Referral. Commanders

will refer such allegations to the IG at the appropriate command level for investigation.

2. Appoint IGs or IG staff members as inquiry or investigation officers (IOs) for CDIs. (NOTE: Air Force Reserve and Air

National Guard IGs may be appointed to conduct CDIs at installations other than their own.)

3. Conduct any investigations into allegations against senior officials (any active or retired Regular Air Force, Air Force

Reserve, or Air National Guard military officer in the grade of O-7 (brigadier general) select and above, and Air National

Guard Colonels selected for a Certificate of Eligibility (COE). Current or former members of the Senior Executive Service

(SES) or equivalent and current and former Air Force civilian Presidential appointees are also considered senior officials.

Under DOD policy, an officer becomes an O-7 select, and therefore a senior official, at the time the selection board that

selects the officer adjourns.

4. Investigate sexual assault or domestic violence allegations.

5. Convene an investigation of which the commander is the subject (no self-investigations).

6. Investigate discrimination based on color, national origin, race, ethnic group, religion or sex, including sexual harass-

ment unless the base Equal Opportunity (EO) declines to investigate (EO has the right of first refusal).

Commanders will notify SAF/IGQ through their MAJCOM, NAF, JFHQ, FOA, or DRU IG when beginning a CDI into

complaints against a colonel (or civil servant Grade 15) and, after the conclusions of these CDIs, as well as any CDIs

which substantiate allegations against Majors or Lieutenant Colonels, then SAF/IGQ requires the following documents

to close the case:

1. Copy of CDI report (case file and all attachments),

2. Copy of legal review,

3. Copy of the final command actions (including non-judicial punishment, an LOR, an LOA, an LOC, a Record of Individ-

ual Counseling, or a memorandum documenting verbal counseling of the subject), and,

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_**Chapter 16, Investigatory Matters**_

_**Section 16-11 Investigations and Inquiries - CDIs**_

_**Page 2**_

4. Copy of any rebuttal or statement provided by the subject.

If an investigation is conducted pursuant to a specific regulation that prescribes the procedures to be followed, that regu-

lation should be used.

A CDI should be conducted any time the commander needs facts to make a decision and those facts cannot be easily gath-

ered through established reporting procedures or informal, cursory investigation. Before appointing an IO, the com-

mander will frame the allegations with assistance from JA. The allegations will be identified in an attachment to the IO

appointment letter. Framing allegations is the single most important factor in the pre-investigation stage.

The appointment of the IO should be in writing and should outline the scope of the investigation and the particular na-

ture of the allegations and matters to be inquired into or investigated. The IO should be told to make findings of fact and

given direction whether the commander desires conclusions and recommendations, and given a specific suspense date.

The initiating commander has the sole authority to grant or deny extensions. A sample of an appointment letter is con-

tained in Attachment 5 of the CDI Guide.

The IO should be equal or senior in grade to the most senior subject of the CDI and not in their chain of command. In all

cases, the IO should be mature and experienced with good writing and critical thinking skills. Generally, the IO will be a

senior captain or higher, a civilian equivalent, or senior NCO. With commander concurrence, the IO could be selected

from a different unit. The IO should also be fully available to conduct the CDI unhampered by leave, temporary duty,

separation, retirement, or other commitments that would detract from the investigation.

Before beginning the investigation, the IO should review the CDI and IO guides and, if times permits, complete the on-

line Investigating Officers Overview Course. The IO should also contact the Staff Judge Advocate for advice on how to

conduct the investigation. This is especially important if a UCMJ violation or criminal conduct may be involved in the

investigation. The IO will need to know under what circumstances a person questioned should receive a rights advise-

ment and what form that rights advisement should take.

The report of an IO in a CDI case is not confidential or privileged although it typically will receive "For Official Use

Only" status. The CDI Guide contains scripts for questioning suspects and non-suspect witnesses.

_**KWIK-NOTE: Every person who conducts a CDI should read the CDI and IO guides, and should consult with the SJA BE-**_

_**FORE beginning the investigation.**_

**RELATED TOPICS:**

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**SECTION**

Command Influence

2-2

Employee Interrogation

5-3

Labor Relations

5-5

Advising Suspects of their Rights

8-9

Confessions

8-10

Discrimination Complaints – Military

9-3

Discrimination Complaints – Technician

9-4

Sexual Harassment

9-8

Boards – Investigative

16-4

Commander's One-on-One Meeting with Member – Precautions

16-5

Congressional and Legislative Inquiries

16-6

Fraud, Waste and Abuse

16-7

Investigation by Commander of Suspected Minor Offenses

16-10

Legal Reviews

17-11

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_**Chapter 16, Investigatory Matters**_

_**Section 16-12 Surveillance**_

_**Page 1**_

**Surveillance**

**Updated by Lieutenant Colonel Donald C. Mobly, July 2007**

**AUTHORITY** : 18 U.S.C. 1385; Executive Order 12333, 46 Fed. Reg. 59941, _United States Intelligence Activities_ (4 Dec 81); NGR 500-2/ANGI 10-801, _National Guard Counterdrug Support_ (31 Mar 00); AFI 33-219, _Telecommunications Monitoring and_ _Assessment Program (TMAP)_ (1 May 2006); Coacher, _Permitting Systems Protection Monitoring: When the Government Can Look_ _and What It Can See_ , 46 A.F. Law Review 155 (1999); applicable state law.

**GENERAL LIMITATIONS**

Surveillance is an activity that implies a security or law enforcement purpose of some type. As such, the _Posse Comitatus_ Act may come into play to the extent surveillance activities are engaged in by National Guard personnel serving in a Title

10 status. In general, Title 10 military members may not directly engage in civilian law enforcement activities. Addition-

ally, in connection with National Guard counter-drug operations, NGR500-2/ANGI 10-801 strictly prohibits National

Guard personnel serving in Title 32 status from pursuing or targeting specific persons for surveillance.

**PERMITTED COUNTERDRUG ACTIVITIES**

ANG personnel working in counter-drug are permitted to conduct aerial and surface reconnaissance/observation of air-

space, maritime or surface areas (land and internal waterways of the US and territories) for illegal drug activities which

include, but are not limited to, cultivation of marijuana or delivery of illegal drugs, suspected drug trafficking airstrips/

drop zones/corridors, illegal drug laboratories, suspicious aircraft, watercraft, or motor vehicles. Approved aerial recon-

naissance equipment and techniques include, but are not limited to:

1. Radars.

2. Unmanned Aerial Vehicles (UAVs).

3. Aerial visual techniques, including infrared/thermal imagery, and photographic reconnaissance.

4. Photo reconnaissance/film processing.

However, it bears repeating that permissible reconnaissance/observation activities by National Guard personnel DO

NOT INCLUDE THE PURSUIT OR TARGETING OF SPECIFIC PERSONS FOR SURVEILLANCE. It should also be re-

membered that military members (both active and ARC) are encouraged to be watchful and report concerning unlawful

or unusual activities they become aware of while on duty. For example, if a unit is going to perform an exercise in the de-

sert, there is no prohibition against it performing such an exercise in a known drug trafficking area so that it can report

unusual people in the area. Likewise, pilots can be asked to fly a pre-scheduled sortie in a particular area and report back if they see marijuana fields or out-of- the-way airstrips.

This is a complex area of the law. It is vitally important to rely on the Staff Judge Advocate's advice in this area. The SJA should assist in planning missions involving counter-drug activities.

**MILITARY MEMBERS AND BASES**

Surveillance efforts directed at military personnel or on military installations are not prohibited by law or policy and are permissible. However, physical surveillance of military members should not be initiated without close coordination with

the servicing SJA. The SJA's involvement is necessary to avoid potential violations of an individual's constitutional rights.

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_**Chapter 16, Investigatory Matters**_

_**Section 16-12 Surveillance**_

_**Page 2**_

**COMPUTER MONITORING**

As the military's dependence on computers and electronic communication continues to grow, issues relating to the mis-

use and security of government computers have become more commonplace. The monitoring of military members' com-

puter usage may be employed as a tool to detect computer abuse and maintain secure systems. The general rule is a gov-

ernment employee using a government computer has no expectation of privacy with regard to information uncovered in

the course of official monitoring. All government computer users are repeatedly advised that their use is for official pur-

poses only and is subject to monitoring for lawful purposes, including to ensure that the use is authorized, for manage-

ment of the system, to guard against unauthorized access, and to verify security procedures, survivability and operational

security.

Even though military computers may be monitored for systems protection purposes, it is important to remember that to

the extent the monitoring shifts to law enforcement or detection of criminal activity, different rules apply. Systems moni-

tors should not act as an instrument of law enforcement. After initial discovery through systems monitoring of some sus-

pected criminal act, further monitoring becomes a law enforcement activity and must comply with the legal requirements

for conducting criminal investigations.

You are encouraged to seek the assistance of your SJA on issues pertaining to computer monitoring.

_**KWIK-NOTE: Before engaging in surveillance activities make sure you have checked with your Staff Judge Advocate for ad-**_

_**vice and recommendations.**_

**RELATED TOPICS:**

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**SECTION**

Military Aid to Civilian Authorities

6-2

Counterdrug Support Programs

6-5

Ethics

7-3

Criminal Investigations, Prosecution and Reporting – DOD and DOJ

8-12

Unauthorized Copying and Unauthorized Use of Software

14-15

Improper Use of Government Computer Systems and Monitoring Internet and E-mail Use

14-16

Fraud, Waste and Abuse

16-7

Inspector General

16-9

Legal Assistance to Unit Members and the Role of the Judge Advocate to the Commander

17-9

Computer Acquisition and Security

25-6

United States Property and Fiscal Officer (USPFO) 25-20

_**Air National Guard Commander's Legal Deskbook**_

597

**Chapter 17, Judge Advocate Matters**

**Table of Contents**

**Section**

17 - 1 Table of Contents

17 - 2 An ANG Commander's Guide to the Base SJA

17 - 3 Professional Responsibility for ANG Judge Advocates

17 - 4 The Air Force Inspection System (AFIS)

17 - 5 Judge Advocate Support for ANG Units Deploying Overseas

17 - 6 Judge Advocate Training Regulation

17 - 7 Law Libraries

17 - 8 Legal Assistance Program

17 - 9 Legal Assistance to Unit Members and the Role of the Judge Advocate to the Commander

17 - 10 Legal Office - Operational Guidance

17 - 11 Legal Reviews

17 -12 Military Justice Authorized Activities of ANG Judge Advocates in Non-Federalized Status

17 - 13 Notarial Acts

17 - 14 Paralegals

17 - 15 Preventive Law Program

17 - 16 Staff Assistance Visits - Judge Advocate

17 - 17 TJAG's ANG Council

17 - 18 Witness Preparation

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-2 An ANG Commander's Guide to the SJA**_

_**Page 1**_

**An ANG Commander's Guide to the SJA**

**Updated by Lieutenant Colonel Christopher A. Eason, March 2018**

****

**AUTHORITY:** AFI 51-110, _Professional Responsibility Program_ (5 August 2014); AFI 51-110 Attachment 3, _Civility in Professional Conduct_ (5 August 2014); AFI 51-110 Attachment 5, _Supplemental Rules of Professional Conduct for Air National Guard_ _Judge Advocates_ (5 August 2014); AFI 51-504, _Legal Assistance, Notary, and Preventive Law Programs_ (27 October 2003 IC 24

May 2012); ANGI 36-8001, _Air National Guard Member Telecommuting Policy_ (21 January 2012); AFI 51801, _Training of Reserve Component Judge Advocates and Paralegals_ (14 March 2018); applicable state law. 

## INTRODUCTION

**** The SJA's role is to deliver professional, candid and independent counsel to ensure mission capability. The purpose of this article is to further clarify some of the common duties of the SJA and particular issues associated with the position.

**THE OFFICE OF THE STAFF JUDGE ADVOCATE**

As you already know, the SJA is the lead lawyer on the base, typically in charge of one to two other Judge Advocates and

one to three paralegals. The SJA is usually an experienced military attorney, a field grade officer and a civilian practitioner. The SJA and staff provide advice and opinions on a number of different legal topics including, for example, military

justice, administrative law, operations law, international law, ethics issues, contract law, environmental law and fiscal law.

Depending on the State, the JFHQ or State military department may have specialized lawyers to address particular issues

including environmental or contractual issues, but the SJA should be expected to have a general and competent under-

standing of the issues and be able to answer the commander's questions, or get the answer to the question and address

the issue. The SJA should also lead a robust legal assistance and preventative law program designed to minimize ANG

members' legal issues so they can further the ANG mission.

**THE SJA**

_****_ The SJA should advise, enable and advocate. The SJA should be a legal problem solver, not just a problem identifier (and especially not a problem causer). Note, not all solutions are quick or will be supported by higher echelons. Some solutions require AFI or policy waivers or even legislative action. By having the SJA serve as an active member of the wing

staff, you will help avoid delay and cost associated with a course of action re-vector. Some issues are complex or nuanced

and require a great deal of research so the SJA can competently provide an opinion on the matter. The SJA understands

that he or she does not make the decision. That said, the SJA should not merely define the right and left parameters for

the commander. Rather, the SJA should identify the commander's options then recommend a specific course of action

and articulate his or her reasoning for that course of action, and his or her reasoning for not recommending a different

course of action.

While the SJA serves directly under the commander in a support role, the Judge Advocates at the wing, including the

SJA, represent the Department of the Air Force acting through its unauthorized officials. AFI 51-110, _The Air Force Rules of_ _Professional Conduct_ , Rule 1.13, 5 August 2014. Note, while the AFIs cited above do specifically apply to ANG SJAs, AFI 51-110 does recognize that if a conflict between the Air Force Rules and the lawyer's licensing authority for ANG Judge

Advocates in the performance of their duties while in a duty status, the more restrictive of the two shall govern. AFI 51-

110, _The Air Force Rules of Professional Conduct,_ Rule 8.5(b), 5 August 2014.

If the SJA learns an individual in the wing, including a commander, intends to act in a way that will unknowingly or

knowingly violate the law, the SJA has a duty to independently and candidly address the issue. However, the interests of

the Air Force ordinarily reflect those of the commander, and the commander's individual goals ordinarily will coincide

with those of the Air Force.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-2 An ANG Commander's Guide to the SJA**_

_**Page 2**_

The bottom line is an effective SJA should be a "go-to" problem solver for the commander and a trusted adviser on all

other issues. The SJA typically is a skilled diplomat, negotiator, business and management advisor and public speaker. In

short, the SJA is a resource which can advance the unit mission in a variety of ways. Few other positions in the wing are

afforded the broad reach and potential impact of a SJA. You will find that your SJA is a flexible, adaptable and subject matter expert in whatever the issue is on which you need advice. Because of their breadth of experience and line officer

status, some SJAs transition into vice commander positions or as chiefs of staff where they continue to serve effectively.

Put another way, the SJA's training and experience uniquely positions him or her to offer a simple yet sophisticated rec-

ommendation to a complex situation. That is what you should expect of your SJA.

To that end, an effective SJA will understand the unit mission, the aircraft at the wing, their capabilities, and their associated tactics, techniques and procedures.

**RESOURCES**

Every wing commander should take advantage of the telecommuting policy as it applies to Judge Advocates. Most SJAs

are Drill Status Guardsmen. Legal issues generally do not wait until drill weekend to present themselves, so the SJAs'

military responsibilities necessarily continue between drills just as your unit's mission continues between drills. SJAs

must be in a status to render legal advice to commanders. ANGI 36-8001, _Air National Guard Member Telecommuting Policy_ , 21 January 2012, specifically references JAGs and doctors as eligible Guard members for telecommuting. There are limitations on the amount of telecommuting that can be performed and if an SJA or other Judge Advocate abuses the policy,

the privilege can be revoked. However, telecommuting is an indispensable tool afforded to commanders and SJAs to al-

low the SJA to continue to provide legal advice to the command on issues that cannot wait until the next drill.

Generally, SJAs should also bring a lack of resources problem – desks, printer, paper, private office space – which is man-

datory – to the appropriate authority's attention. Commanders should take necessary actions to sufficiently resource and

staff the SJA's office.

**SJA (AND COMMANDER) TRAINING OPPORTUNITIES**

The foundation of an effective SJA is competency. To ensure competency, the SJA and every other Judge Advocate have

various Continuing Legal Education requirements. To maintain their certification, all ANG Judge Advocates must attend

the Annual Survey of the Law every other year. In addition, many states require their Judge Advocates to complete a mini-

mum number of annual CLE courses to stay abreast of significant legal developments. Recently, the JAG Corps has im-

posed additional training requirements on SJAs and their personnel regarding sexual assault prevention and response is-

sues.

The ANG Assistant to TJAG, a major general Judge Advocate, hosts Contemporary Base Issues courses designed to pre-

pare all ANG officers, NCOs and future leaders to identify and respond to issues on which the commanders regularly en-

counter and the SJA regularly advises. The CBI courses are typically two days, offered multiple times per year at various

ANG wings, and provide great opportunities for commanders and SJAs to jointly enhance their understanding of relevant

and timely ANG issues and potential solutions.

Finally, commanders are encouraged to send their JAGs assigned as the State Headquarters SJA to the State Headquar-

ters Staff Judge Advocate Course at least once every two years. This annual course provides JAGs refresher training on

the performance of their state and federal mission and state military code (or equivalent).

_**KWIK-NOTE: Commanders should actively support their Staff Judge Advocates and rely on them in solving the complex is-**_

_**sues which face ANG base commanders.**_

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-2 An ANG Commander's Guide to the SJA**_

_**Page 3**_

**RELATED TOPICS:**

**SECTION**

Ethical Guidelines for ANG Judge Advocates

17-2

Ethics

17-3

Judge Advocate Training Regulation

17-6

Legal Assistance Program

17-8

Legal Assistance to Unit Members and the Role of the Judge Advocate to the Commander

17-9

Legal Office Operational Guidance

17-10

Paralegals

17-14

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-3, Ethical Guidelines for ANG Judge Advocates**_

_**Page 1**_

**Ethical Guidelines for ANG Judge Advocates**

**Updated by Major David A. Guten, November 2017**

**AUTHORITY:** TJAG Policy Memorandum: Air Reserve Component-1, Attachment 2, _Rules of Professional Conduct for Air_

_National Guard Judge Advocates_ (15 Oct 02); AFI 51-110, _Professional Responsibility Program_ , Attachment 5; State Bar Professional Rules of Responsibility and Ethical Conduct. 

## INTRODUCTION

**** On 5 August 2014, the Judge Advocate General of the USAF established the Supplemental Rules of Professional Conduct

for Air National Guard Judge Advocates which included 12 ethical guidelines specifically applicable to ANG Judge Advo-

cates. The guidelines apply not only while the ANG JA is in a Title 32 status (UTA, ADT, two-week annual tour, etc), but

also while in a civilian status. These guidelines have been distributed to all ANG Judge Advocates and contain detailed

explanations and examples of prohibited and permissible conduct.

They are discussed here because adherence to them will favorably impact your unit and its mission. **** ****

**ETHICAL GUIDELINES**

The guidelines are summarized as follows:

1. These Rules for Professional Conduct for Air National Guard Judge Advocates (ANG JA) apply when an ANG JA is

"not in federal service." If a conflict exists between any of these Rules and any state ethics rule, the more restrictive of the two shall govern. When in Title 10 status, the rules of professional conduct applicable to active duty judge advocates

apply.

2. An ANG JA is bound by the ethics rules and guidance of each state where admitted to practice and of the state of per-

manent military assignment. If these rules are in conflict, the rules of the state of permanent military assignment nor-

mally would govern. The ABA Model Rules of Professional Conduct should be consulted by an ANG JA for guidance on

proper professional conduct.

3. An ANG JA should avoid conduct which may not involve an actual conflict of interest but may give an appearance of

improper representation of adverse interests, and which may have a negative impact on the reputation of the Air Force,

Air National Guard or state military department.

4. An ANG JA in a civilian capacity shall not represent a client in a matter adverse to the Air Force or state military de-

partment when such representation would create a conflict of interest concerning duties performed by the ANG JA.

5. Except as applicable law or state ethical rules may otherwise permit, an ANG JA acting in his or her civilian capacity

shall not represent a client related to a matter in which the ANG JA participated personally and substantially on behalf of

the Air Force or the state military department.

6. An ANG JA shall not, in the performance of official duties or while in a duty status, participate in a matter in which

the ANG JA previously participated in his or her civilian capacity where there is a conflict of interest.

7. An ANG JA, having acquired non-public information through his or her association with the Air Force or National

Guard, which information could not have been known to the ANG JA but for that association, shall not represent a civil-

ian client in a matter in which the information so acquired could be used to the material disadvantage of the Air Force,

the National Guard or any employee, officer, contractor, or agent of either. The ANG JA also shall not reveal such informa-

tion to any unauthorized person.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-3, Ethical Guidelines for ANG Judge Advocates**_

_**Page 2**_

8. An ANG JA shall not advertise his or her affiliation as an ANG JA or assignment to a particular ANG unit.

9. An ANG JA should avoid conducting private business during duty hours while on active duty or inactive duty status.

10. An ANG JA shall not solicit clients for his or her private practice or business while in duty status or while in uni-

form, nor shall an ANG JA solicit clients on military installations, nor in any other manner which trades on his or her

military status (other than through advertising permitted under Rule 8).

11. An ANG JA shall not, for compensation, knowingly agree to represent a member of his or her state's military depart-

ment in connection with a matter for which the individual has an entitlement to legal assistance.

12. An ANG JA may represent both the state in which he or she serves as a member of the ANG and the Air Force when

the state and federal interests coincide. If divergent interests, the ANG JA should represent his or her state.

**IMPLEMENTATION AND ENFORCEMENT**

A complaint of violation of any of these ethical guidelines will be referred to the state ANG Headquarters Staff Judge Ad-

vocate who will notify the appropriate state authorities and forward the complaint, with comments, to the ANG Assis-

tant to TJAG. The ANG Assistant to TJAG shall provide comments and recommendations which will be forwarded, to-

gether with the information related to the violation, to TJAG's Ethics Administrator (AFLSA/JACA) for review and final

disposition by The Judge Advocate General.

Review of the information or allegation is conducted by TJAG's Advisory Committee on Ethics and Standards (Advisory

provisions of TJAG Policy Letter No. 2, _Professional Responsibility_ ). References in Policy Letter Number 2 to "MAJCOM

SJA" shall, for purposes of these Rules, mean the ANG Assistant to TJAG. All other provisions of Policy Letter Number 2

not inconsistent with these Rules or the applicable state laws shall apply.

TJAG shall notify the ANG Assistant to TJAG and The Adjutant General of the subject ANG JA's state of any final action

taken before notifying the ANG JA of the ultimate disposition of the matter.

_**KWIK-NOTE: ANG JAs are subject to adverse action for violating ANG JA ethical guidelines.**_

**RELATED TOPICS:**

**SECTION**

Commercial Solicitation on Base

3-9

Ethics

7-3

Off - Duty Employment

7-9

Judge Advocate Training Regulation

17-6

Legal Assistance Program

17-8

Legal Assistance to Unit Members and the Role of the Judge Advocate to the Commander

17-9

Wills

23-21

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-4 The Air Force Inspection System (AFIS)**_

_**Page 1**_

**The Air Force Inspection System (AFIS)**

**By Lt Col Cynthia V. Bernett, March 2018**

**AUTHORITY:** AFI 90-201, _The Air Force Inspection System_ (21 Apr 15, IC 1, 11 Feb 16).

AFI 51-109, _The Article 6 Inspection System_ , was published on 28 November 2017, and is available on the Air Force e-

Publishing website. Some changes of note include the following: Establishes a requirement to conduct self-assessments

every six months for base legal offices (paragraph 1.4.11.2). Establishes a requirement to conduct self-assessments every

six months for NAF and GCMCA supporting legal offices (paragraph 1.4.10.2). Establishes a requirement to close out

Article 6 deficiencies with the MAJCOM inspection POC (paragraphs 1.4.10.4 and 1.4.11.6). Changes the notification

requirement for Article 6, AF/JAI inspection from 45 days to 30 days (paragraph 2.4). Establishes HAF/AFLOA Director

requirements to monitor compliance of applicable Self-Assessment Communicators (SACs) through the Management

Internal Control Toolset (MICT) (paragraph 1.4.5.3). Additional inspection materials may be found on the AF/JAI KM

site. 

## INTRODUCTION

**** The AFIS is a single, coherent, integrated and synchronized system of inspections conducted on behalf of the Secretary of the Air Force (SECAF), the Chief of Staff of the Air Force (CSAF) and commanders at all levels. Inspections are performed by authorities both inside the inspected unit (internal inspections) and outside the inspected unit (external in-

spections). The intent of the Inspector General (IG) is to continuously improve the AFIS so there is an ever-shrinking

difference - both real and perceived - between mission readiness and inspection readiness. In other words, airmen and

commanders are encouraged to focus on the mission and not the inspection.

**PURPOSE OF AFIS**

The purpose of the AFIS is threefold:

To enable and strengthen commanders' mission effectiveness and efficiency;

To motivate and promote military discipline, improve unit performance, and manage excellence up and down the chain

of command, in units and staffs; and

To identify issues interfering with readiness, economy, efficiency, discipline, effectiveness, compliance, performance,

surety and management excellence.

The AFIS is focused on assessing and reporting on a unit's readiness, economy, efficiency, state of discipline and effectiveness to execute assigned missions. The AFIS gives SECAF, CSAF and commanders at all levels an independent assess-

ment of:

A unit's compliance with established directives and ability to execute its assigned mission, leadership effectiveness, man-

agement performance, and aspects of unit culture and command climate;

A unit's ability to find, report, analyze and fix deficiencies; and

A unit's ability to prevent fraud and abuse, and to minimize waste.

The AFIS gives major commands (MAJCOM), Air National Guard (ANG) and Headquarters Air Force (HAF) functionals

an independent assessment of functional effectiveness and compliance in the field, and of the adequacy of organization,

policy, guidance, training and resources.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-4 The Air Force Inspection System (AFIS)**_

_**Page 2**_

**INSPECTION (ORI) GUIDELINES**

At the wing level, the AFIS consists of two inspections: the Unit Effectiveness Inspection (UEI) and the Commander's

Inspection Program (CCIP). The UEI is a MAJCOM inspection of the wing that occurs quadrennially (an external inspec-

tion), while the CCIP consists of a commander-led, self-assessment program designed to continuously evaluate different

areas of the wing (multiple internal inspections). Each inspection is designed to complement the other, relying on the

input and output of the other inspections for maximum effectiveness. The Self-Assessment Program communicates essen-

tial information needed by MAJCOM Functionals to focus on the Risk-Based Sampling Strategy (RBSS) executed during

the UEI.

The UEI is conducted at the wing level and is inspected by MAJCOM IGs and the Air Force Inspection Agency (AFIA)

IAW AFI 90-201, Chapter 4. The CCIP is the foundation of the AFIS and has two key components:

1. An inspection and exercise program, executed by the wing IG office with support from wing subject-matter experts on

the Wing Inspection Team (WIT).

2. A self-assessment program, using the Management Internal Control Toolset (MICT) and additional measures as di-

rected by the commander.

The CCIP assesses the same four major graded areas (MGAs) and sub-MGAs just as a UEI would: Managing resources,

leading people, improving the unit and executing the mission, shown below:

**RESPONSIBILITIES**

All MAJCOM, AFIA, and Air Force Office of Special Investigations AFOSI) IG Teams (MAJCOM/ IG):

1. Establish inspection programs consistent with command mission requirements and in accordance with this instruc-

tion to assess unit readiness, economy, efficiency and state of discipline. Additionally, they are to report indications of

potential fraud, waste and abuse (FWA) to the Inspection Team Chief and the wing IG.

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-4 The Air Force Inspection System (AFIS)**_

_**Page 3**_

2. Conduct UEIs on all Regular AF (RegAF) and Air Reserve Component (ARC) Total Force (TF) wings. The "photo al-

bum" of performance, sampling strategy and inspection scope development for TF wing UEIs will be coordinated be-

tween the lead MAJCOM/IG, AFRC/IG, supporting MAJCOM/IG, and ANG/IG (if applicable) to account for organiza-

tional specifics. Gaining MAJCOMs (GMAJCOMs) have full inspection responsibility for ANG wings, to include areas

previously covered by separate functional assessments, to all applicable TF guidance. Individual ANG members are al-

lowed to perform an Augmentation Inspector (AI) role in GMAJCOM funded Title-10 MPA status upon receipt of a vali-

dated request to ANG/IG.

3. Air National Guard Inspector General (ANG/IG). The ANG/IG will not conduct inspections under AFIS unless di-

rected by the Director, Air National Guard. However, ANG/IG will provide Title 32 subject-matter experts (SME) when

requested by a lead MAJCOM for conducting ANG unit UEIs. Additionally, ANG/IG may coordinate inspection policy

issues with GMAJCOM/IGs and ANG wing IGs, as required. ANG/IG and MAJCOM IG ANG Advisors assist GMAJCOM

IG Gatekeepers with development of MAJCOM IG inspection schedules for ANG wings.

4. ANG/IG acts as the liaison to SAF/IG and MAJCOM IGs for inspection policy related to the ANG. ANG/IG serves as

the liaison between MAJCOM IGs and ANG Readiness Center for UEI continual evaluation requirements.

Wing commander responsibilities:

1. Establish, execute and sustain a wing CCIP.

2. Designate the wing IG as the CCIP Manager.

3. Identify and apportion manpower to administer an effective CCIP.

4. Establish and staff a wing IG office to accomplish the duties outlined in AFI 90-201.

5. Establish and maintain a self-assessment program led by subordinate commanders (IAW AFI 90-201) and chain of

command guidance.

6. Designate a wing self-assessment program manager; ensure PM training.

7. Approve the wing inspection plan.

8. Chair the Commander's Inspection Board (CIMB).

9. Report CCIP results to the MAJCOM commander IAW AFI 90-201.

The wing IG is responsible for the overall management and administration of wing's CCIP and to:

1. Develop a wing inspection plan and risk-based sampling strategy based on the wing commander's guidance to enable a

reliable assessment of the wing.

2. Validate and verify the wing self-assessment program.

3. Provide the commander with an independent assessment of unit and wing Programs.

4. Administer MICT, to include MICT Business Rules (commanders and JAGs should read and heed your unit's MICT

Business Rules) and the Inspector General Evaluation Management System (IGEMS) and corresponding Business Rules.

5. Oversee the wing's gatekeeping/scheduling process. The wing Gatekeeper, in coordination with the MAJCOM Gate-

keeper, will de-conflict outside agency inspections/visits from the wing inspection schedule.

6. The wing IG will schedule, plan and execute wing-level exercises IAW wing commander direction and guidance found

in AFI 90-201.

**JA INSPECTIONS**

Air National Guard Judge Advocate offices are inspected in conjunction with the UEI by a JAG/Paralegal team. Legal of-

fices should ensure they have completed and validated all pertinent JA Self-Assessment Communicators (SACs) in the 51-

series AFIs in MICT, as well as non-JA SACs that JA should run from Attachment 3 of AFI 90-201. Each response in

MICT (yes, no, N/A) should include a detailed comment and supporting documentation, if available. Keep in mind cer-

tain documents cannot be uploaded ( _i.e._ , if they contain PII, etc.). The wing's MICT Business Rules should be reviewed to ensure compliance with self-inspection procedures and timelines. Also, the legal office may be required to submit a

continuity book to their Self-Assessment Program Manager (SAPM), if required. The continuity book outlines how the

legal office conducts its business ( _see_ a glossary example in Deskbook Section 17-4a).

_**Air National Guard Commander's Legal Deskbook**_

606

_**Chapter 17, Judge Advocate Matters**_

_**Section 17-4 The Air Force Inspection System (AFIS)**_

_**Page 4**_

_**KWIK-NOTE: Your legal office is an important element in the Air Force Inspection System, and will be inspected along with**_

_**the wing's Unit Effectiveness Inspection.**_

_****_

**RELATED TOPICS:**

**SECTION**

Judge Advocate Training Requirements

17-6

Legal Office - Operational Guidance

17-10

Paralegals

17-14

Staff Assistance Visits - Judge Advocate

17-16

_**Air National Guard Commander's Legal Deskbook**_

607

_**Chapter 17, Judge Advocate Matters**_

_**Section 17-4a, Glossary, The Air Force Inspection System (AFIS)**_

_**Page 5**_

_**SAMPLE LEGAL OFFICE CONTINUITY BOOK**_

**WG/JA BUSINESS FUNCTION/PROCESS LIST WITH RELATED MAJOR GRADED AREAS (MGAs)**

Meeting /

Description

Mode

Audience

Frequency

MGA

Sub MGA

Process

A JAG officer

briefs all

All newcomers Newcomers

newcomers by

In person via

to the unit

briefings held

Newcomer's

providing an

PowerPoint (M: (with/without regularly; at

Leading People

Training

Briefing

initial ethics

\AW\JA\BRIEF prior military least once a

briefing as well INGS)

service)

quarter

as an Article

137 briefing.

A JAG briefs

the services the

legal office

provides to all

In person via

Every squadron

Outreach

members and

PowerPoint (M: on base, to

Yearly

Leading People

Training

Briefings

family

\AW\JA\BRIEF include GSUs

members.

INGS)

Other topics

are presented,

if requested.

PowerPoint (M:

Article 137

\AW\JA\BRIEF

briefings

INGS). NOT

provide an

an in-person

Article 137

Every Re-

overview of the briefing. Slides

As required

Leading People

Training

Briefings

enlistee

Uniform Code

are in binder;

of Military

individuals sign

Justice.

off once

reviewed.

All members

listen to one

Pre-recorded

hour of pre-

In-house JAG

PPT (https: //

Paralegals and

recorded

Sunday of Drill

Leading People

Training

training

aflsa.jag.af.mil/

JAGs

training as an

CAPSIL)

office. Topics

vary.

A JAG/

paralegal team

travel to

In-person legal

provide legal

assistance (i.e.

assistance to

Office Hours at

will, powers of Individual

Executing the

GSUs so

Quarterly

AEF Readiness

GSUs

attorney,

members

Mission

members do

counseling,

not have to

etc.)

travel to main

base for legal

services.

608

.

_**Chapter 17, Judge Advocate Matters**_

_**Section 17-4a, Glossary, The Air Force Inspection System (AFIS)**_

_**Page 6**_

**WG/JA BUSINESS FUNCTION/PROCESS LIST WITH RELATED MAJOR GRADED AREAS (MGAs)**

Base Urinalysis Base urinalysis In person

Base Urinalysis

Improving the

Process

Program

program

inspection by a Program

Annual

Unit

Operations

Inspection

inspection

JAG

Manager

Traffic Safety

Discuss

Stewardship/

Managing

Coordination

pertinent safety In person

CC/CV

Quarterly

Facilities and

Resources

Group Meeting

issues

Environment

Threat

Discuss current

Stewardship/

Managing

Working Group threats to the

In person

CC/CV

Quarterly

Facilities and

Resources

Meeting

base

Environment

RSD Wrap Up

Discuss RSD

CC/CV;

Managing

In person

Monthly

Stewardship

Meeting

events

Directors

Resources

Discuss events

Director's

CC/CV;

Managing

pertinent to the In person

Weekly

Stewardship

Meeting

Directors

Resources

group

CC/CV;

Pre-RSD

Discuss pre-

Managing

In person

Directors;

Monthly

Stewardship

Meeting

RSD events

Resources

others

Discuss

Base Support

capabilities

Mission

Managing

and Planning

each unit has

In person

As needed

Stewardship

Support Staff

Resources

Committee

to support the

base as a whole

Installation

Discuss

Emergency

Mission

Managing

contingency

In person

Quarterly

Stewardship

Management

Support Staff

Resources

plans

Working Group

Each JAG has

to certify no

Professional

adverse action

(https: //

Responsibility

taken against

Managing

Stewardship/

aflsa.jag.af.mil/

All JAGS

Yearly

(PR) /ROSTER him/her by

Resources

Manpower

ROSTER)

Certification

state bar; PR

rules read; CLE

credits met

JAG a member

of the Crisis

Disaster

Action Team to

CC/CV;

Response

Managing

handle legal

In person

Directors;

As needed

Stewardship

Force/CAT

Resources

issues in

others

team member

unexpected

contingencies

Monthly

CV, SARC,

Case

meeting on

Chaplain, DHP,

Communicatio

Management

In person

Monthly

Leading People

sexual assault

Victim

n

Group meeting

cases

Advocate,

609

_**Chapter 17, Judge Advocate Matters**_

_**Section 17-5 Judge Advocate Support for ANG Units Deploying Overseas**_

_**Page 1**_

**Judge Advocate Support for ANG Units Deploying Overseas**

**Updated by Lieutenant Colonel Christopher A. Eason, January 2018**

**AUTHORITY:** AFI 10-403, _Deployment Planning and Execution_ (20 Sep 2012).

**PRE-DEPLOYMENT PLANNING**

**** Staff Judge Advocates are responsible to their installation commanders to advise on "all legal aspects of deployments."

AFI 10-403 para. 1.8.20.1. It is incumbent on your Staff Judge Advocate to understand what is required (and what would

also provide value to the deploying ANG unit) with respect to legal briefs, to obtain that information – whether classified

or not – and brief it to your members. Along with necessary briefings and related legal assistance matters, both discussed

below, Judge Advocates are also responsible to assist in the planning process. Specifically, Judge Advocates are required

to assist LRS concerning legal aspects of host-nation support agreements and acquisition and cross-servicing agreements

(ACSA). AFI 10-403 para. 1.8.20.6. A proper understanding and analysis of the host country's laws and treaty provisions

in the planning process is essential for managing local customs and preventing an unintentional violation of civil and

criminal laws in the host country.

**BRING YOUR OWN LAWYER AND PARALEGAL**

TJAG is the "sourcing authority for the deployment of Judge Advocates and paralegals." AFI 10-403 para. 1.5.16.2. Most

USAF Judge Advocates fill individual deployment slots and do not typically deploy with the ANG unit to which they are

assigned. To the extent possible, it is advisable that ANG Judge Advocates (and paralegals) should deploy with their

units overseas. Commanders then begin their deployment with a trusted legal adviser with whom he or she already has a

working relationship. Additionally, working with the unit at the deployed location provides the Judge Advocates valuable

experience.

**BRIEFINGS AND LEGAL ASSISTANCE**

Judge Advocates should review the "lessons learned" from previous Judge Advocates deployed to the ANG unit's destina-

tion. They might also contact the current deployed Judge Advocate to identify and understand the common legal issues

faced by the deployed commander, including issues related to the foreign laws and customs of the host country. Judge

Advocates should then impart this knowledge as appropriate to their commanders, either one-on-one or in pre-

deployment briefings with the members of the squadron.

Pre-deployment briefings may include topics related to Status of Forces Agreements (SOFA), Law of Armed Conflict

(LOAC), Uniform Code of Military Justice (UCMJ) and Rules of Engagement (ROE). Generally, LOAC briefs are manda-

tory for all deployers regardless of location, and given that overseas ANG members are on Title 10 orders, a UCMJ brief

is also appropriate. Some combatant commands require specific ROE and SOFA briefs to be accomplished by a home-

station Judge Advocate prior to deployment. Other examples of topics with value are a command relationship or commu-

nity relations brief. Often, deployed Judge Advocates are asked to research, identify and understand the voluminous

authorities in the deployed environment to assist deployed commanders with their attendant responsibilities stemming

from OPCON, TACON and ADCON relationships.

In addition, Judge Advocates should brief the members of the ANG on the need for powers of attorney, wills and other

legal documents which are necessary to protect their families during the member's absence due to the deployment. AFI

10-403 para. 1.8.20.7. Sample briefings can be found on the ANG section on FLITE. Deploying personnel overseas is a

serious matter. Because the members of the unit may not be aware of their potential civil and criminal liability during the

deployment, complete understanding of these legal issues, before deployment, is essential to a successful mission. Many

of the _Related Topics_ listed below contain items that should be briefed to all deploying personnel before a deployment.

_**Air National Guard Commander's Legal Deskbook**_

610

_**Chapter 17, Judge Advocate Matters**_

_**Section 17-5 Judge Advocate Support for ANG Units Deploying Overseas**_

_**Page 2**_

_**KWIK-NOTE: Bringing your JAG on a deployment not only provides valuable training for the JAG, but gives commanders in**_

_**a foreign country a lawyer with whom he or she is familiar and has a pre-existing professional relationship.**_

**RELATED TOPICS:**

**SECTION**

Arrest By Civilian Authorities

8-6

Enforceability of Orders by Air Force Officers to ANG Personnel Not in Federal Service

11-5

Asylum and Refuge Requests – Aircraft Outside the United States

15-2

Hostile Detention (Peacetime)

15-5

Civil Affairs

15-6

Claims

15-7

Foreign Criminal Jurisdiction

15-8

Foreign Search, Inspections and Customs Duties of U.S. Aircraft

15-9

Host Nation Support – Peacetime and Wartime (NATO)

15-10

Interrelationship of U.S. Civil and Military Agencies – The U.S. Country Team

15-11

Passports and Visas

15-12

Returning to the United States – Customs

15-13

Status of Forces Agreement (SOFA)

15-14

Law of Armed Conflict

15-16

War and Deployment Planning – The Judge Advocate's Role

15-17

_**Air National Guard Commander's Legal Deskbook**_

611

_**Chapter 17 Judge Advocate Matters**_

_**Section 17-6 Judge Advocate Training**_

_**Page 1**_

**Judge Advocate Training**

**Updated by Lt Col Cynthia V. Bernett, April 2018**

**AUTHORITY:** AFI 51-801, _Training of Air Reserve Component Judge Advocates and Paralegals_ , (14 Mar 18); AFPD 51-8, _Assignment, Training, and Management of Members of the Judge Advocate General's Corps Reserve (TJAGCR)_ , (19 Apr 11, certified current 17 Sep 15); 10 U.S.C. §§ 806, 8037; Department of the Air Force General Order No. 49 (13 Jul 49).

**REQUIREMENTS ESTABLISHED**

**** ANGI 51-801 establishes the training requirements for ANG Judge Advocates General (JAGs). The goal of mandatory

education and training requirements is to prepare JAGs to support Air Force missions in a wide variety of positions with

minimal additional training. Training under the program is of three types: day-to-day performance of the JAG's peacetime

mission, periodic on-the-job training in an active duty or functionally equivalent environment and periodic formal school

training.

**TRAINING AT AN ACTIVE-DUTY BASE LEGAL OFFICE**

ANG JAGs must perform a minimum of two consecutive weeks of training at an active-duty Air Force base legal office at

least once every four years. This is what is commonly referred to as a "Quadrennial Tour" or "quad tour." Tours are man-

aged through a Home Station Support coordinator, and are not arranged by the member directly (although the member

does have latitude regarding tour dates, and to a certain extent, location). This training can also be accomplished if JAGs

accompany their units on deployments to an active-duty base. JAGs would then be assigned to work at the base legal of-

fice for the duration of the deployment. Those exempted from this quadrennial tour requirement are General Officers,

JAGs performing an Active Guard Reserve (AGR) tour or serving as an ANG Technician, trial and appellate military

judges and Air National Guard Assistants. A temporary waiver may be granted in certain circumstances.

The importance of this training cannot be overstated. While JAGs receive much valuable training at their units, training

is more comprehensive at an active-duty legal office in areas such as federal military justice law, civil law and, to a lesser extent, claims. Remember, while the peacetime role of your JAGs is to provide legal services and support to you and your

unit, JAGs must also be prepared for a wartime role as active-duty military lawyers. ANG JAGs in the grades of Major

and above are also encouraged to perform a training tour at a MAJCOM or a numbered Air Force legal office. Although

doing this would not count toward fulfillment of the base-level tour, it would benefit them to have exposure to the legal

issues reviewed at that level.

At the end of the training tour the JAG will receive an Air Force Form 77, Letter of Evaluation (LOE), from the active-

duty supervising Staff Judge Advocate. This LOE should be addressed and sent to the ANG JAG's wing or group com-

mander and ANG MAJCOM Assistant. Bullets from the LOE can then be used to draft the JAG's OPR.

**REQUIRED CONTINUING LEGAL EDUCATION COURSES**

In addition to training at active duty legal offices and at their own units, JAGs are required to attend the Annual Survey

of the Law every two years. Within 18 months of accession, ANG JAGs must attend the Air National Guard Law Office

Course. Additionally, they must attend an approved in-residence course at the Air Force Judge Advocate General's School

at Maxwell AFB, Alabama, every six years. Attendance at a Contemporary Base Issues (CBI) course is also highly encour-

aged for both commanders and their JAGs. Finally, Air National Guard judge advocates assigned as the State Headquar-

ters Staff Judge Advocate are encouraged to attend the State Headquarters Staff Judge Advocate Course at least once

every two years. JAGs are also encouraged to avail themselves of legal and professional military education, engage in

training events sponsored by local legal seminars, and participate in mobilization exercises, as appropriate.

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_**Section 17-6 Judge Advocate Training**_

_**Page 2**_

**EFFECT OF FAILURE TO COMPLY**

JAGs can apply for waivers for any of the above requirements. JAGs who fail to comply with the above-stated require-

ments are subject to withdrawal of their designation as judge advocates or other administrative action.

Because compliance with the training requirements is mandatory for all ANG Judge Advocates, commanders are strongly

encouraged to support their JAGs in meeting the requirements necessary for them to remain qualified.

_**KWIK-NOTE: Judge Advocates need timely refresher training to best equip them to serve their units and to fully prepare**_

_**them for mobilization and active-duty service.**_

**RELATED TOPICS:**

**SECTION**

ANG Assistants

1-4

Judge Advocate Support for ANG Units Deploying Overseas

17-5

Staff Assistance Visits - Judge Advocate

17-16

TJAG's ANG Council

17-17

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-7 Law Libraries**_

_**Page 1**_

**Law Libraries**

**Updated by Major John W. Erickson, Jr., July 2009**

**AUTHORITY:** AFI 51-105, _Automated Legal Information Services and Library System_ (09 May 02). 

## INTRODUCTION

**** Every legal office, whether Guard, Reserve, or Active Duty, should maintain a law library with a collection of law books, periodicals, and other materials maintained and primarily used by Air National Guard, Air Force Reserve and Air Force

lawyers. Each legal office should have a law library accountable officer (LLAO) who is responsible for conducting an in-

ventory, annual update service and ongoing upkeep of the library materials. The availability of the internet and computer

assisted legal research service has allowed a dramatic reduction in the number books needed for an individual office.

Each Air National Guard Judge advocate should have reliable access to FLITE, which includes access to Lexis-Nexis and

Westlaw. For information on obtaining a FLITE and Lexis-Nexis account, the unit Staff Judge Advocate should contact

FLITE at: DSN 493-4179; or: helpdesk@jag.af.mil.

The law library records should include an acquisition file, started at the beginning of each year, and consisting of invoices or other documents received with publications. The records should also include a disposition file, which is started at the

beginning of each year and consists of documents about the disposition of publications in the law library. AF Form 1025,

Law Library Shelf List, is a card file form maintained on all publications in the law library. The cards should be filed alpha-betically by title, with updates and deletions to be shown.

All publications in the law library are U.S. Government property. Whether donated or purchased from appropriated

funds, each publication must be stamped on the inside cover and on the front edge of the pages to indicate that it is U.S.

Government property. Periodicals must be similarly stamped on the front cover.

**ALTERNATE METHODS OF BUILDING AND MAINTAINING THE LAW LIBRARY**

Air National Guard legal offices may choose one of two ways to order and obtain materials for their law libraries.

**Local Purchase**

One method is to submit a purchase request for the materials needed to the base Contracting Officer using AF Form 9,

_Request for Purchase_. The LLAO should attach any brochure or order form received from the commercial publisher to the AF Form 9. The Contracting Officer will process the request and, if it is approved by the appropriate commander, order

the material. The LLAO should keep a copy of the AF Form 9 in a "Suspense" file until the material is received, then mark the AF Form 9 to indicate that the material has been received, and return the Form 9 to the Contracting Office so

that the bill may be paid.

The LLAO should maintain a file of all completed AF Form 9s (which lists titles of publication, addresses of publishers

and quantities) to facilitate ordering necessary updates for said materials the following year.

Disposition of the law library materials no longer needed is done locally by the LLAO, with the approval of the Staff

Judge Advocate, if the LLAO and SJA are not the same person.

The advantages of using the local purchase method are ease in administration, speed of obtaining materials, and local

unit control over ordering and disposing of library materials. The disadvantage is that the cost of materials is paid for by the unit.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-7 Law Libraries**_

_**Page 2**_

**Purchase through the Air Force**

The other method of obtaining law library materials is through the Air Force. In essence, the Air Force through ALFSA/

JAS at Maxwell AFB, Alabama, acts as the middleman between the ANG base legal office and the commercial publisher.

Any request for purchases of new publications must be made in writing with the name of the item, the address, the tele-

phone number, the cost, the author, a justification for acquisition, and must be sent to the MAJCOM/JA for approval. If

the request is not adequately justified, it will be returned.

As each publication is ordered, AFLSA/JAS will send to the LLAO a computer printout showing the title of the publica-

tion ordered, the type of publication, the publisher, the book code number, the contract number, and the date of the or-

der. The LLAO should ensure that the publications ordered are received within the time period indicated for receipt on

the computer printout. If a publication is not received within the prescribed time period, the LLAO must note the dis-

crepancy on a copy of the printout or in a letter of non-receipt and send it to AFLSA/JAS.

Communications to AFLSA/JAS about law library matters must be routed through the MAJCOM/JA. LLAOs must in-

clude their name, the account number, the book code if known, and their DSN number. The communication should be

limited to one subject. For example, if it asks for a new publication, it should not also request instructions on how to dispose of excess law library publications.

When books are found to be obsolete or non-serviceable, they must be transferred to the Defense Re-utilization and Mar-

keting Office (DRMO) for disposal. However, the LLAO is authorized to destroy obsolete hard cover law library books

that are not needed by any federal agency, including the Free Public Library of the District of Columbia, if their commer-

cial value is less than the cost of destruction. Prior to destruction, the LLAO must ensure the servicing DRMO has deter-

mined within the last six months that such books are not needed by any federal agency and their commercial value is

less than the cost of destruction.

The advantage of this method is that the Air Force, rather than the ANG unit, pays for the material. The disadvantages

include the channels that must be gone through to purchase or inquire about materials, lack of local unit control over the

kinds of materials obtainable, the additional time and effort to obtain materials, and the concomitant additional time the

legal office is without these materials necessary to provide better legal services to Commanders and unit members.

Commanders should discuss with their Judge Advocates the most practical method of building and maintaining materi-

als for the legal office's library.

**CORE LAW LIBRARY**

There is a recommended Core Law Library for ANG base level Judge Advocates. Many of these publications are available

on the internet, FLITE and/or Lexis-Nexis. The list is not all inclusive and includes the following:

AFI 37-161

_Distribution Management_

AFI 36-2903

_Dress and Personal Appearance of Air Force Personnel_

AFI 40-502

_The Weight and Body Fat Management Program_

AFI 36-2115

_Assignments Within the Reserve Components_

AFI 36-3209

_Separation Procedures for Air National Guard and Air Force Reserve Members_

AFI 36-2612

_USAFR Reenlistment and Retention Program_

AFI 36-3206

_Administration Discharge Procedures for Commissioned Officers_

AFI 36-3208

_Administrative Separation of Airmen_

AFI 51

_Entire Series (LAW)_

AFI 91-204

_Safety Investigations and Reports_

AFMAN 23-220 _Reports of Survey for Air Force Property_

AFI 36-2855

_Judge Advocate General Awards_

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-7 Law Libraries**_

_**Page 3**_

Manual for Courts-Martial United States (Most Current Version)

_The Air Force Law Review_

_The Reporter_

USAF/JA Numbered Letters

Title 10, United States Code

Title 32, United States Code

Black's Law Dictionary

Appropriate state laws and regulations

Additionally, this _Deskbook_ , the _ANG Commander's Legal Deskbook_ , the active duty version, _The Military Commander and the_ _Law_ , and the _Army Operations Law Handbook_ , are publications that should be maintained in the law library.

**CONCLUSION**

If you facilitate the SJA's acquisition of needed books for the law library, the legal office will be better equipped to provide legal assistance, pre-mobilization legal counseling and preventive law programs on your base, and will better serve

your needs and those of your unit members.

_**KWIK-NOTE: The adequacy of the base legal office library has a direct effect on the ability of the Judge Advocate or Parale-**_

_**gal to perform effectively.**_

**RELATED TOPICS:**

**SECTION**

Contracting Pitfalls

25-8

Counseling

24-7

Federal Government Property Furnished to the ANG

25-10

Fraud, Waste and Abuse

16-7

Inspections - Judge Advocates

17-4

Legal Assistance Program

17-8

Paralegals

17-14

Preventive Law Program

17-15

Staff Assistance Visits - Judge Advocate

17-16

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-8 Legal Assistance Program**_

_**Page 1**_

**Legal Assistance Program**

**Updated by Captain Hilary S. Styer, March 2018**

**AUTHORITY:** 10 U.S.C. §§ 1044 and 1054; AFPD 51-5, _Military Legal Affairs_ (23 Dec 14); AFI 51-504, _Legal Assistance,_ _Notary, and Preventive Law Programs_ (27 Oct 03); ANGI 51-504, _Air National Guard Legal Assistance Program_ (20 Nov 14); _Federal Tort Claims Act_ , 28 U.S.C. § 1346 (b); applicable state law; command discretion. 

## INTRODUCTION

**** 10 U.S.C. 1044 is the statutory basis for the Air Force to provide (subject to the availability of legal resources) legal assistance to service members with their personal civil legal affairs. Authority for the Air Force Legal Assistance Program is

set forth in AFI 51-504 and ANGI 51-504 and applies to the Air National Guard. ****

**LEGAL ASSISTANCE AND PREVENTIVE LAW PROGRAMS DISTINGUISHED**

While legal assistance is often given to unit members in a preventive law context, and many of the preventive law materi-

als ( _i.e.,_ brochures) can be used for legal assistance, the two programs are separate and distinct. The Preventive Law Program provides general information and advice to unit members; no-attorney client privilege is created. The Legal Assis-

tance Program establishes a means of assisting unit members and entitled family members to advice and limited assis-

tance with personal civil legal matters (and in limited circumstances, advice regarding criminal matters). An attorney-

client relationship is typically established, and the member is entitled to the attorney-client privilege in those cases.

**COMMANDER'S RESPONSIBILITIES**

AFI 51-504 states that base legal offices must provide mission-related legal assistance limited to wills and powers of at-

torney. Non-mission related legal assistance can be provided as resources and expertise permit. Where resources are

available, commanders should authorize their SJA to render non-mission-related legal assistance. The authorization

should be in writing to the SJA, and should delineate the scope of the SJA's legal assistance duties. This writing will be

clear evidence all legal office personnel rendering legal assistance will be doing so within the scope of their employment

and will afford maximum protection from liability for both the legal office personnel and the commander. Finally, the Air

Force, through the respective commander, is the primary legal client. As a result, legal assistance must be provided as

resources and expertise permit to maximize unit mission readiness.

ANGI 51-504 states to ensure mission readiness, it is essential legal assistance is available to eligible beneficiaries. Additionally, post-mobilization legal assistance is statutorily available to assist members of the reserve components who have

been mobilized by authorizing them to receive legal assistance for a period of time after release from active duty.

**DUTIES OF THE STAFF JUDGE ADVOCATE IN ADMINISTERING THE LEGAL ASSISTANCE PROGRAM**

The SJA is responsible for:

Ensuring the level of legal assistance services is consistent with the scope of legal services authorized by ANGI 51-504.

Authorizing other legal assistance outside the scope of ANGI 51-504.

Administering the legal assistance program in strict compliance with the Rules of Professional Responsibility for ANG

judge advocates, local state rules of professional conduct, and to the extent they apply, the AF Rules of Professional Con-

duct, and other ethics or professional responsibility rules, including rules applicable to paralegals.

Obtaining private office space for all unit judge advocates.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-8 Legal Assistance Program**_

_**Page 2**_

**ELIGIBLE CLIENTS**

Members of the ANG, spouses of members and family members entitled to a military identification card are eligible for

legal assistance. The ANG member must be in a duty status under Title 10 or Title 32 in order for his or her spouse and

family members to receive legal assistance. As resources and expertise permit, legal assistance may also be provided to

active component members other reserve component members and retirees of any military service.

**SERVICES PROVIDED**

ANG judge advocates and paralegals (under the professional supervision of a judge advocate) shall provide legal assis-

tance with respect to the following legal matters to eligible beneficiaries: wills, powers of attorney, living wills and health care directives, notary services, dependent care plans, casualty affairs (death incident to the performance of military

duty), employment problems arising from the performance of military duty and subject to the Uniformed Services Em-

ployment and Reemployment Rights Act (USERRA) or a similar state statute, landlord-tenant issues specifically related

to performance of military duty, tax problems specifically related to performance of military duty, matters arising from

the performance of military duty and subject to the Servicemembers Civil Relief Act (SCRA) or a similar state statute,

and other consumer-related issues that may have arisen due to the member's performance of military duty.

Other legal assistance is authorized as approved by the National Guard Bureau and the Air Force, or by the State Head-

quarters SJA, the wing commander, other appropriate commander or the unit SJA.

Legal assistance shall not be provided on the following issues: issues involving personal commercial enterprises, unless

related to the SCRA or similar state law, criminal matters under the Uniform Code of Military Justice (UCMJ), the local

state military code, or any other federal or state criminal law, standards of ethical conduct issues, Law of Armed Conflict

issues, official matters in which the Air Force or ANG has an interest or is involved in the final resolution, and legal is-

sues raised on behalf of another individual, even if that other individual is eligible for legal assistance.

When writing letters on a client's behalf, judge advocates and paralegals should not use official letterhead, and shall in-

clude a statement in the letter clarifying that the ANG does not represent the client in resolving the matter.

**ADVICE TO MEMBERS**

No advice may be given to a member concerning a civilian criminal matter for which the member is the subject.

Unless the judge advocate is assigned as that member's counsel in a disciplinary or adverse administrative action, no ad-

vice may be given to the member who is the subject of such action. There is one exception to this limitation. Where

there is no other judge advocate available, a judge advocate may be called upon to advise members of their rights in a dis-

ciplinary or adverse administrative action without forming an attorney client relationship. This exception only permits

the advice of rights. Statutes, regulations, and command discretion governing particular adverse actions prescribe which

adverse actions members are entitled to the assistance of military counsel.

Judge advocates providing legal assistance pursuant to this instruction must avoid creating the impression they represent

the ANG's interests in resolving the client's concerns or that the ANG has an interest in the outcome of the matter.

Judge advocates providing legal assistance pursuant to this instruction shall not interfere with a member's existing

attorney-client relationship.

**COURT APPEARANCES OR REPRESENTATION**

Judge advocates, as such, are prohibited from making any civilian court appearances in person or in legal documents for

unit members, and are prohibited, as judge advocates, from representing any unit member in a civilian legal matter.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-8 Legal Assistance Program**_

_**Page 3**_

**REFERRAL OF CLIENTS TO THE PROGRAM**

Legal assistance is usually available during drill weekends on an appointment basis. The schedule should be left to the

SJA's discretion. Be careful with even "genuine" emergencies for legal assistance when the judge advocate is not in a duty status, since these situations could lead to the liability protection problems discussed above.

**REFERRAL OF CLIENTS FROM THE PROGRAM**

At times it is necessary to refer eligible clients to other sources because the service required is beyond the scope, re-

sources or expertise of the local Legal Assistance Program.

Other sources include:

For court representation or civilian civil or criminal matters, the Lawyer Referral Service of the local bar association.

Local Legal Aid Society or Public Defender for indigent clients with civil or criminal matters, as appropriate.

Other staff agencies as appropriate, such as the:

Commander;

Inspector General;

Military Personnel Flight;

Chaplain;

Social Actions Officer; or

Family Readiness.

Outside federal, state or local agencies, such as the U.S. Department of Labor Veterans' Reemployment Rights Office.

Assigned military counsel for disciplinary or adverse administrative actions that entitle the member to such counsel.

**CONFIDENTIALITY**

The attorney-client relationship applies to services provided under a unit's legal assistance program.

Information received from a client while providing legal assistance, attorney work products and documents relating to

the client are protected confidential communications. Information shall not be released without the client's express per-

mission, pursuant to a court order or as otherwise permitted by the Rules of Professional Responsibility for ANG JAs,

local state rules of professional conduct and to the extent they apply, the AF Rules of Professional Conduct, and other

ethics or professional responsibility rules including rules applicable to paralegals.

Disclosure may NOT be lawfully ordered by any superior military authority, including commanders.

All Air National Guard Judge Advocates are bound by the American Bar Association Code of Professional Responsibility,

Rules of Professional Responsibility for ANG JAs, AF Rules of Professional Conduct and their own State Bar rules.

**CONCLUSION**

The above guidance applies to the legal assistance ANG Judge Advocates may provide while in Title 32 status at ANG

bases. ANG Judges Advocates must adhere to AFI 51-504 and ANGI 51-504 when rendering legal assistance.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-8 Legal Assistance Program**_

_**Page 4**_

_**KWIK-NOTE: ANG Legal Offices are authorized to provide a wide array of legal services to eligible beneficiaries as author-**_

_**ized by ANGI 51-504. Commanders should give their SJA discretion to determine the scope, extent and administration of**_

_**other legal assistance.**_

**RELATED TOPICS:**

**SECTION**

Advising Suspects of Their Rights

8-2

Confidentiality and Privileged Communications

14-6

Ethical Guidelines for ANG Judge Advocates

17-2

Judge Advocate Support for ANG Units Deploying Overseas

17-5

Legal Assistance to Unit Members and the role of the JAG to the CC

17-9

_**Air National Guard Commander's Legal Deskbook**_

620

_**Chapter 17, Judge Advocate Matters**_

_**Section 17-9 Legal Assistance to Unit Members and the Role of the Judge Advocate to the Commander**_

_**Page 1**_

**Legal Assistance to Unit Members and the Role of the Judge Advocate**

**to the Commander**

**Updated by Captain Hilary S. Styer, March 2018**

**AUTHORITY:** 10 U.S.C. §§ 1044 and 1054; AFPD 51-5, _Military Legal Affairs_ (23 Dec 14); AFI 51-504, _Legal Assistance,_ _Notary, and Preventive Law Programs_ (27 Oct 03); ANGI 51-504, _Air National Guard Legal Assistance Program_ (20 Nov 14); _Federal Tort Claims Act_ , 28 U.S.C. §§ 1346 (b). 

## INTRODUCTION

Members of National Guard units possess certain entitlements to legal assistance. The commander is responsible for in-

forming members of the scope of these legal services within the unit. Members need to know their legal rights and obli-

gations under selected federal and state statutes and regulations. This is particularly important if called to federal active service, since this change in status can have a dramatic impact on the lives of the members of the unit. Commanders can

use a number of methods to inform members about the legal assistance program, such as articles in unit newsletters, e-

mails, briefings at a Commander's Call, Newcomer's Briefing or a staff meeting.

ANG judge advocates and paralegals (under the professional supervision of a judge advocate) shall provide legal assis-

tance with respect to the following legal matters to eligible beneficiaries: wills, powers of attorney, living wills and health care directives, notary services, family care plans, casualty affairs (death incident to the performance of military duty),

employment problems arising from the performance of military duty and subject to the Uniformed Services Employment

and Reemployment Rights Act (USERRA) or a similar state statute, landlord-tenant issues specifically related to perform-

ance of military duty, tax problems specifically related to performance of military duty, matters arising from the perform-

ance of military duty and subject to the Servicemembers Civil Relief Act (SCRA) or a similar state statute and other

consumer-related issues that may have arisen due to the member's performance of military duty. Other legal assistance

is authorized as approved by the National Guard Bureau and the Air Force, or by the State Headquarters Staff Judge Advo-

cate (SJA), the wing commander, other appropriate commander or the unit SJA.

ANGI 51-504 restricts Judge Advocates (JAs) from entering into attorney-client relationships on issues involving per-

sonal commercial enterprises, unless related to the SCRA or similar state law, criminal matters under the Uniform Code

of Military Justice (UCMJ), the local state military code or any other Federal or State criminal law, standards of ethical

conduct issues, Law of Armed Conflict issues, official matters in which the Air Force or ANG has an interest or is in-

volved in the final resolution and legal issues raised on behalf of another individual, even if that other individual is eligible for legal assistance. The judge advocate may refer the member to a bar referral service if the legal assistance matter is outside the scope, administration or expertise of the Legal Assistance Program.

The Air Force must remain the Legal Office's primary client. Legal advice on contracts, leases, estate matters, marital

matters, residency issues and tax matters can consume vital legal assets. Such areas of legal assistance must be provided

only as resources and expertise permit. The commander may determine the unit is better served if these matters are re-

ferred to civilian counsel. Using a Lawyer Referral Service, rather than referring a member to a particular attorney, avoids the appearance of the Air National Guard favoring one civilian attorney over another.

**ADVICE ON CIVIL PROBLEMS**

**** As a result of the legal assistance consultation, an attorney-client relationship is formed. This means the communications between the attorney and the member are confidential. The extent of the legal advice provided is within the profes-

sional discretion of the JA providing the assistance. However, JAs may not appear in a civilian court or have their name

appear on documents submitted to a civilian court as a result of the judge advocate advising a unit member in a legal as-

sistance matter. If the matter will require an inordinate amount of attention, is complex, or is beyond the expertise of

the JA, the matter may be referred to counsel through a Lawyer Referral Service for appropriate action.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-9 Legal Assistance to Unit Members and the Role of the Judge Advocate to the Commander**_

_**Page 2**_

**ADVICE ON MILITARY PROBLEMS**

National Guard members do have certain rights to military counsel for military-related legal advice, which impacts their

rights as members of or as a result of their participation in the National Guard. The classic example of this occurs when

the JA represents the member in an administrative board proceeding. When there is _actual representation_ of a member by a JA, the attorney-client relationship is formed, and all communications between attorney and client are confidential.

However, the _mere advice_ to a member of rights and options in a military disciplinary action or adverse administration action or the _mere explanation_ of regulations, statutes or case law may not necessarily cause the formation of an attorney-client relationship mandating that the attorney-client communications are confidential. The Judge Advocate providing

such advice or explanation should so advise the member at the outset. Advice on applicable ethics statutes and regula-

tions never creates an attorney-client relationship.

**ROLE OF THE JUDGE ADVOCATE**

Commanders should make it clear to the members of the unit the SJA is primarily the commander's attorney. As a result,

the SJA may be restricted from providing advice to members of the unit to avoid a conflict of interest. Because most units

now have at least two judge advocates assigned, the SJA should delegate responsibility for legal assistance and adverse

actions to the Deputy SJA to retain the ability to advise the commander on legal issues without a conflict of interest.

While the Staff Judge Advocate is the commander's attorney, after an attorney-client relationship is formed with a unit

member, all communications between attorney and client are confidential. Attorney-client communications may be not

disclosed to the commander or any third party without the express permission of the client. This restriction binds all at-

torneys under their professional code of ethics and is essential to the successful operation of this program. A commander

may not lawfully order an attorney to disclose such communication, or take adverse action, either directly or indirectly,

against a judge advocate for failure to disclose such client communication.

Judge Advocates are required to comply with the code of professional responsibility imposed by the states where they are

licensed. All judge advocates are licensed attorneys admitted to practice law in a state and are qualified to practice before the highest court of that state. In addition, they are trained military attorneys, designated by the Judge Advocate General

of the United States Air Force to represent the government and members of the National Guard for certain purposes.

Depending on the jurisdiction of the matter in question, as well as the duty status of the JA, judge advocates may appear

in courts-martial and administrative proceedings. As a result, judge advocates must balance a number of legal interests

and obligations when providing advice to clients who are also members of the National Guard.

_**KWIK-NOTE: The unit's legal assistance program is an important element in achieving mission readiness, but it is impor-**_

_**tant to remember the SJA is the commander's lawyer. The ANG State Headquarters SJA is responsible for monitoring the**_

_**Legal Assistance programs at all ANG legal offices in the state. The Unit SJA is responsible for ensuring the unit legal office**_

_**provides the level of services specified in ANGI 51-504.**_

**RELATED TOPICS:**

**SECTION**

Command Influence

2-2

Legal Assistance Program

17-8

Preventive Law Program

17-15

Counseling

24-7

_**Air National Guard Commander's Legal Deskbook**_

622

_**Chapter 17, Judge Advocate Matters**_

_**Section 17-10 Legal Office Operational Guidance**_

_**Page 1**_

**Legal Office – Operational Guidance**

**Updated by MajorDavid A. Guten, January 2018**

**AUTHORITY:** _See generally_ , AFI 51 Series ( _Law_ ).

**COMPOSITION OF THE OFFICE**

The senior Air National Guard Judge Advocate on a commander's staff is the Staff Judge Advocate (SJA). The next senior

is the Deputy Staff Judge Advocate. That position and other Judge Advocates assigned to the unit are called Assistant

Staff Judge Advocates. Generally a legal office also has assigned at least one Paralegal non-commissioned officer.

**RESPONSIBILITIES**

The JAG provides legal services to the commander, the deputy commanders, the commander's staff and others as appro-

priate. Legal services include those duties imposed by law, regulation, judge advocate and command authority, customs

in American military jurisprudence and all tasks related to legal matters as directed by the commander. At the operations

wing or group level in the Air National Guard, the specific nature of these duties may include, but is not limited to, in-

volvement in:

Providing legal support and counsel to the wing or group contracting activities in all phases of the acquisition process;

Reviewing requests filed with the unit under state and federal Freedom of Information Acts (FOIA) or Privacy Acts;

Reviewing information to determine if a report of survey is required, providing legal assistance to report of survey offi-

cers, and reviewing reports of survey;

Providing advice on strike, protest and dissident activities at ANG bases;

Providing advice to comptrollers concerning fiscal law matters;

Providing counsel, furnishing legal advice to commanders and respondents, and affording assistance in administrative

actions which may adversely affect individuals, including boards, hearings and quality force management actions;

Providing legal advice and assistance to the Security Forces (SF), reviewing SF reports of investigation, obtaining eviden-

tiary extracts from SF-controlled reports and advising commanders of disposition;

Advising commanders and providing support concerning incidents that affect on-base privileges, such as driving privi-

leges, use of base exchange and access to base;

Reviewing enlistment, re-enlistment and retention eligibility;

Advising approved and authorized private organizations on the base or within the unit and reviewing their respective con-

stitutions and bylaws;

Acting as Air National Guard liaison with the U.S. Attorney, legal departments of all other federal and state agencies and

administrative or judicial bodies at the local level;

Supporting and coordinating with the state headquarters SJA on such matters as environmental compliance, utility rates,

labor law and personnel issues;

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-10 Legal Office Operational Guidance**_

_**Page 2**_

Advising commanders on options in disciplinary matters, to include conducting courts-martial, preparing charge sheets

and assisting in preparing non-judicial punishment forms, and advice concerning search and seizure and inspection ques-

tions;

Maintaining an effective legal assistance program, to include consultation for personal non-criminal legal matters, prepar-

ing wills and powers of attorney, and preparing and presenting articles, briefings, and seminars in support of the preven-

tive law program;

Providing periodic briefings as may be required by law, regulation, policy or direction;

Drafting and reviewing operations and exercise plans for compliance with the law of armed conflict;

Providing advice to commanders and their staff on international law matters, such as foreign criminal jurisdiction, host

country law, civil litigation, negotiations, treaty interpretation and agreement interpretation;

Providing advice to commanders on all investigations and inquiries under their inherent authority or any regulation,

methods of initiating and conducting such investigations; and providing legal advice and assistance to investigating and

inquiry officers;

Reviewing information to determine if a line-of-duty (LOD) investigation is necessary, providing assistance and legal ad-

vice to officers conducting LOD investigations and reviewing LOD investigations;

Providing legal briefings, advice and counsel to participants in mobility and contingency operations and drug interdiction

support operations;

Advising commanders on _Posse Comitatus_ , National Defense Area and off-base disaster preparedness legal issues;

Providing advice on Ethics issues ( _See_ DoD 5500.7-R, _Joint Ethics Regulation_ );

Supporting and coordinating with the Military Equal Opportunity Office in all EEO matters including sexual harassment

and other forms of illegal discrimination;

Coordinating and monitoring the base urinalysis program to ensure compliance with all applicable regulations;

Reviewing unit regulations and unit supplements; and

Advising unit members on their civilian employment rights as members of the Air National Guard.

* _**Note**_ _that except for purely state claims processed by state authorities, the only involvement of Air National Guard Judge Advocates with_

_**claims matters** is to assist in their being forwarded to the Air Force Claims Office or the State Claims Officer for processing and adjudication. _

**DUTY ASSIGNMENTS**

Judge Advocates MUST NOT be assigned additional duties which interfere or conflict with their duties as Judge Advo-

cates.

The senior Staff Judge Advocate's primary responsibility is to the wing or group commander as a fair and impartial advi-

sor and member of the commander's staff.

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-10 Legal Office Operational Guidance**_

_**Page 3**_

The proper roles of the Staff Judge Advocate and Deputy Staff Judge Advocate or the Assistant Staff Judge Advocate in

administrative board proceedings and courts-martial sometimes vary depending on the circumstances of the case and the

needs of the applicable commander. However, the variations in those roles must not present ethical problems or conflicts

of interests for Judge Advocates and their primary responsibilities.

The senior SJA may properly act as the recorder for a board or prosecutor at a court-martial, or act in the role of the re-

viewer of the board proceedings or record of court-martial. However, since the senior SJA is primarily the commander's

attorney, fulfilling the role of legal advisor to a board or judge in a court-martial will probably be perceived as a compromise of the required impartiality of such roles. Likewise, the senior SJA should not act as respondent's or defendant's

counsel, as such role will directly conflict with the senior SJA's primary responsibility as the commander's attorney.

The Deputy or an Assistant SJA may properly act as respondent's or defendant's counsel, or as the recorder for a board

or prosecutor at a court-martial; and, may also serve as legal advisor to a board or judge in a court-martial, but only if the senior SJA is not the recorder of that board or prosecutor at that court-martial, since otherwise, the Deputy or an Assistant SJA would improperly function in a reviewing capacity of the actions of the senior SJA.

Of course, even when the Deputy or an Assistant SJA assumes any of the roles suggested above there still remains the

potential for at least the perception of a conflict of interest because the Deputy or the Assistant SJA is in the same office as the SJA, reports to the SJA, and typically assists the SJA in advising the commander.

In essence, the SJA should work closely with the State Headquarters SJA in matching needs with available legal re-

sources, while keeping in mind the potential for the perception of a conflict of interest as discussed above.

For support of administrative boards and courts-martial, the SJA should arrange for defense counsel representation of

the respondent, legal advisors or judges, and recorders or prosecutors, if needed, through other Air National Guard bases

in the state, the Air Force Reserve, or other reserve components in other branches of the service ( _e.g._ , Army National Guard), or active duty Judge Advocates, if available.

If a member of the Judge Advocate's office serves as respondent's counsel, that Judge Advocate should not be involved in

evaluating the file or advising the commander about it in any way. Likewise, if a Judge Advocate has evaluated the file or

advised the commander, that officer should not act as respondent's counsel without the express, written informed con-

sent of both the commander and the respondent after full disclosure of the potential or actual conflict.

**EFFICIENCY RATINGS**

The SJA of the wing or group should monitor the training of the Deputy or Assistant Judge Advocates and Paralegals,

and act as their rating official. The SJA's reporting official should be as designated by the senior commander in the wing

or group.

_**KWIK-NOTE: The Legal Office actively serves the commander and the unit in a broad range of issues.**_

**RELATED TOPICS:**

**SECTION**

Ethical Guidelines for ANG Judge Advocates

17-2

Inspections - Judge Advocates

17-4

Judge Advocate Training Regulation

17-6

Law Libraries

17-7

Legal Assistance to Unit Members and the Role of the Judge Advocate to the Commander

17-9

Paralegals

17-14

Staff Assistance Visits - Judge Advocate

17-16

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-11 Legal Reviews**_

_**Page 1**_

**Legal Reviews**

**Updated by Major David A. Guten, January 2018**

**AUTHORITY:** Applicable regulations.

**TYPES**

**** Legal reviews are either formal written memoranda setting forth the Judge Advocate's (JAG) opinion as to the legal sufficiency or insufficiency of a proposed action, or an informal review by the JAG of a letter or proposed action. Formal legal

reviews are typically accomplished on reports of survey, line-of-duty determinations, nonjudicial punishment actions, ad-

ministrative discharge actions, court-martial records, appeals of performance evaluations and a wide variety of other ad-

ministrative actions, investigations and inquiries. ****

**CONTENT**

Sometimes the need for and contents of the legal review is contained in the applicable regulation. Having certain docu-

ments reviewed by the JAG is a sound management practice for every commander. A good formal legal review will set

forth the regulation or statute that governs the action, the facts of the case or the situation at hand, a discussion of the law and/or the applicable regulation and how it applies to the facts presented, and finally, a statement of whether the action being taken is in accordance with the regulation. If the JAG finds the action is not legally sufficient, there should be a clear statement of the reason for legal insufficiency and a recommendation, if possible, for corrective action.

**USE**

Commanders increasingly request legal review for proposed unit regulations, unit supplements to regulations and policy

letters to be widely distributed or sent to higher headquarters. This is due to the seemingly ever-burgeoning legal implica-

tions - sometimes apparent to the non-attorney, and sometimes not - of almost everything a commander does.

For these reasons, it is important for commanders and their JAGs to have a good working relationship with each other,

and for commanders to actively seek the legal reviews of the JAGs, and to have confidence in and to follow those reviews.

_**KWIK-NOTE: Before acting, the commander should first ask whether the proposed action has legal implications. If the an-**_

_**swer is yes, have your JAG review it - formally or informally, as necessary - before taking that action.**_

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-12 Military Justice Authorized Activities of ANG Judge Advocates in Non-Federalized Status**_

_**Page 1**_

**Military Justice Authorized Activities of ANG Judge Advocates**

**in Non-Federalized Status**

**Updated by Major John W. Erickson, Jr., July 2009**

**AUTHORITY:** Title 10 U.S.C.; Title 32 U.S.C.; AFI 51-201, _Administration of Military Justice_ (21 Dec 07); AFI 51-103, _Designation and Certification of Judge Advocates_ (7 Dec 04); ANGI 51-801, _ANG Judge Advocate Training Program_ (31 Jul 97); Articles 27 and 64, Uniform Code of Military Justice (UCMJ); Rules for Courts-Martial (R.C.M.) 405, 406, 502, 506, 1106,

1112. 

## INTRODUCTION

**** ANGI 51-801 requires that Air National Guard (ANG) Judge Advocates perform a two-week training tour with an active

duty Staff Judge Advocate (SJA) office at least once every four years. This topic discusses the military justice activities

ANG Judge Advocates may perform while on their training tour with an active duty SJA office while in "Title 32" status,

and while in "Title 10" status where the individual has been activated as a federal officer; and, for military justice pur-

poses, has a status identical to active duty Judge Advocates.

****

**TITLE 32 STATUS**

Generally, ANG Judge Advocate training is conducted in Title 32 status under the command of the governor of the state.

(32 U.S.C. § 502). Most ANG Judge Advocates who perform their training tours with an active duty SJA office will be in

this status. While in this status, an ANG Judge Advocate is not in federal status for the purpose of UCMJ jurisdiction and

are not subject to the Air Force regulations unless applicable to the Air National Guard, or even the orders of superior

active duty officers ( _See_ OpJAGAF 1998/117, 17 Nov 98, _RESERVES_ ).

This Title 32 status is considered a federal status for other purposes; such as Federal Tort Claims Act protection and eligibility for federal benefits such as retired pay. It is distinguished from state status or "state active duty" when the member is serving pursuant to the state code and is actually being paid with state dollars. In many states a guard member serving

on state active duty under the state statute is considered a state employee.

**Permitted Activities**

ANG Judge Advocates may perform as a staff attorney for the active component SJA. They may also provide legal assis-

tance to federal active duty personnel and their dependents; pretrial prosecutorial and nonjudicial punishment functions

and many post-trial duties.

However, even while in Title 32 status, ANG Judge Advocates can gain experience as members of the trial team. They

may be designated representatives of the government under Military Rules of Evidence (M.R.E.) 615, and assist the

prosecution in that capacity. Furthermore, R.C.M. 506(e) allows an accused to have persons not qualified to serve as de-

fense counsel under R.C.M. 502 seated at the defense counsel's table. The accused may also waive the qualifications re-

quired for assistant defense counsel. An ANG Judge Advocate may also serve as defense counsel in a summary court-

martial if an accused waives the qualifications required for defense counsel.

**Impermissible Activities**

An ANG Judge Advocate, while in Title 32 status, may not serve as trial or assistant trial counsel in general or special

courts - martial; or as detailed defense counsel, associate or assistant defense counsel, in general courts-martial; or as

summary court officer, defense counsel in summary courts, or the government representative in summary courts; or as

an Article 32 investigating officer or government representative; or as a military judge unless certified by TJAG.

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-12 Military Justice Authorized Activities of ANG Judge Advocates in Non-Federalized Status**_

_**Page 2**_

Paragraphs 3.3 and 3.5 allow TJAG to certify a reserve component JAG for a period of time or for a specific assignment.

Nor may the ANG Judge Advocate perform post-trial legal reviews under Article 64, UCMJ, and R.C.M. 1112; or review

Article 15s for legal sufficiency without appropriate certification. Written requests for certification for ANG Judge Advo-

cates should be made by the active component SJA 10 days in advance.

**TITLE 10 STATUS**

In Title 10 status, the ANG Judge Advocate becomes an officer of the United States serving in federal status subject to

the UCMJ, Air Force Regulations, and the orders of superior active duty officers. During mobilizations, deployments

(OCONUS) and other situations in which active duty legal offices are augmented by ANG Judge Advocates, special care

should be taken to insure that ANG Judge Advocates are in Title 10 status before being assigned to specific tasks.

**CONCLUSION**

ANG Judge Advocates who train at an active duty SJA office in a Title 32 status may obtain valuable experience from the

functions they may perform while in such status. However, because in Title 32 status they are not commissioned federal

officers on active duty, the scope of military justice duties they are permitted to perform is limited.

_**KWIK-NOTE: Because of the restrictions on ANG JAs performing certain military justice activities on training tours at ac-**_

_**tive duty bases while in Title 32 status, commanders may wish to authorize their JAs to be in Title 10 status during these**_

_**training tours to avoid these restrictions.**_

_****_

**RELATED TOPICS:**

**SECTION**

Active Duty - Air National Guard Members

11-2

Enforceability of Orders by Air Force Officers to ANG Personnel Not in Federal Service

11-5

Federal Recognition of Officers

1-17

Judge Advocate Support for ANG Units Deploying Overseas

17-5

Judge Advocate Training Regulation

17-6

Jurisdiction

2-5

Military Justice Jurisdiction - ANG Members in Title 10 Status

8-2

Mobilization of the Air National Guard (Federal and State)

20-2

Status of National Guard Members

11-7

TDY and Travel

27-9

Training

26-2

_**Air National Guard Commander's Legal Deskbook**_

628

_**Chapter 17, Judge Advocate Matters**_

_**Section 17-13 Notarial Acts**_

_**Page 1**_

**Notarial Acts**

**Updated by Major John W. Erickson, Jr., July 2009**

**AUTHORITY:** 10 U.S.C. §§ 936 & 1044(a); Article 136, UCMJ; AFI 51-504, _Legal Assistance, Notary, and Preventive Law Programs_ (27 Oct 03, IC-1 21 Oct 08)); ANGI 51-504, _Air National Guard Legal Assistance Program_ (14 Dec 01); state statutes. 

## INTRODUCTION

**** This topic summarizes the authority of U.S. Armed Forces members to administer oaths; to take affidavits, sworn statements, depositions, and acknowledgments; and to perform other notarial acts. ****

**WHO CAN PERFORM NOTARIAL ACTS**

All judge advocates, including reserve judge advocates when not in a duty status;

All civilian attorneys serving as legal assistance officers;

All adjutants, assistant adjutants and personnel adjutants, including reserve members when not in a duty status;

All other members of the armed forces, designated by regulations of the armed forces or by statute to have those powers.

Special authority to administer oaths for military justice purposes is outlined in UCMJ Article 136. Title 10 commanders

and persons to whom the general authority to order searches upon probable cause has been granted under MRE 314(d)

are authorized to administer oaths or authorizations for this purpose.

Generally, notarial acts provided by the foregoing individuals will be valid for all purposes. A raised seal need not be

used; however, a notary log must be maintained.

**WHO CAN NOTARIAL ACTS BE PERFORMED FOR**

Members of any of the armed forces;

Other persons eligible for legal assistance under 10 U.S.C. §1044 or DOD regulation;

Persons serving with, employed by or accompanying the armed forces outside Puerto Rico, Guam and the Virgin Islands;

Other persons subject to the Uniform Code of Military Justice outside the U.S.

Your state law may also authorize certain members of the National Guard to act as notaries under certain circumstances.

Check with your SJA to see if your state law has such a provision.

**SUMMARY**

The above statute and regulation authorizes certain individuals by virtue of their military status alone to perform notarial acts. Regardless of the source of authority to perform notarial acts - federal or state statute or regulations - if the person is authorized to perform a notarial act, that notarial act is VALID.

_**KWIK-NOTE: At least one person, and preferably attorneys and paralegals in the legal office should be Notaries Public in**_

_**the state where your base is located.**_

**RELATED TOPICS:**

**SECTION**

Investigations and Inquiries

16-11

Mailing or Delivery - Affidavits and Certificates of Service

24-10

Powers of Attorney

23-19

Wills

23-21

_**Air National Guard Commander's Legal Deskbook**_

629

_**Chapter 17, Judge Advocate Matters**_

_**Section 17-14 Paralegals**_

_**Page 1**_

**Paralegals**

**Updated by First Lieutenant Diane Vaughan & Chief Master Sergeant Jo-Ann Decker, March 2018**

**AUTHORITY:** AFI 36-2101, _Classifying Military Personnel (Officers and Airmen)_ (7 Mar 06); AFPD 51-8, _Assignment, Training,_ _and Management of Members of the Judge Advocate General's Department Reserve (TJAGDR)_ (19 Apr 11); AFI 51-801, _Training of_ _Air Reserve Component Judge Advocates and Paralegals_ (14 Mar 18); TJAG Policy Letter 4, _Paralegal Personnel Recruiting_ (4 Feb 98). 

## INTRODUCTION

**** As the workload of ANG Judge Advocates has increased over the years, so has the need for well-trained paralegals. This topic discusses the training, tasking and skill-level requirements of paralegals in the Air National Guard. Presently, each

ANG flying unit is authorized two Paralegal positions: the Law Office Superintendent (LOS) with an authorized grade of

E-7 (MSgt) and a federal Title 32 technician, with an authorized grade of E-6 (TSgt). ****

**DUTIES**

The paralegal career field encompasses all functions relating to the practice of law, including, but not limited to: execut-

ing military justice, administrative boards, accident and other investigations, depositions and other legal proceedings;

conducting legal services for commanders and Air National Guard members as authorized by applicable state and federal

law; preparing and maintaining legal documents under the direct supervision of Air National Guard attorneys in compli-

ance with American Bar Association Standards; investigating claims filed for and against the Air National Guard; and in-

vestigation and trial assistance in support of both judicial and non-judicial punishment actions under applicable state or

federal law.

**REQUIREMENTS**

Basic requirements for entry into the 5J0X1 Career Field include the ability to type at a minimum rate of 25 words per

minute, good speaking ability, no previous military judicial or non-judicial convictions, and no civilian convictions (ex-

cept for minor traffic or similar offenses). Also required is an interview with an affirmative recommendation by an ARC

LOS. Because Air National Guard paralegals are the only paralegals assigned to ANG legal offices, they must also possess

excellent organizational skills, be able to attend all scheduled Unit Training Assemblies (UTAs) and possess a high de-

gree of self-motivation. Paralegals should also maintain the highest standard of dress and personal appearance.

The major commands have determined that paralegal positions are essential in ANG units gained by the respective

MAJCOMs in time of national emergency, and expect paralegals to be qualified to perform these duties with minimum

training upon assignment to active-duty legal offices. When mobilized, ANG paralegals could be assigned OCONUS or

as backfill for deployed active-duty forces.

**TRAINING**

Paralegals _**must**_ be trained to perform the functions of civil law, military justice, claims and other related tasks. Training in these subject matter areas, as well as periodic exposure to an active-duty legal office environment, is an important aspect of paralegal training. Additionally, paralegals should be knowledgeable in the areas of contract law, fiscal law, labor law, environmental law, as well as in the law and military justice codes of their respective states.

Paralegals are _**required**_ to complete a training tour of not less than 10 working days with an active-duty legal office at least once every four years. More frequent tours are encouraged if circumstances permit.

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-14 Paralegals**_

_**Page 2**_

Training tours must be coordinated through the HSS Paralegal Manager and are subject to the prior approval and concur-

rence of the affected active-duty legal office. The LOS of the active-duty legal office must be contacted in advance to ar-

range a training schedule in those areas in which the paralegal requires training. The training schedule will include not

more than 25 percent of any "front-desk / reception" duties. If circumstances permit, paralegals are encouraged to deploy overseas with their units. Deployments provide invaluable experience for paralegals working in an active-duty legal office

in a foreign country.

Paralegals are placed in positions of high visibility and are expected to possess a depth of knowledge, wide ranging experi-

ence, speaking and writing ability, counseling skills and managerial talent. Professional military education and paralegal

qualification training, whether in-residence or by correspondence course, are essential to obtaining and maintaining

these skills. Paralegals are encouraged to take PME courses in-residence and soon after becoming eligible. Mandatory

skill level requirements and refresher courses offered by the United States Air Force such as the law office management

course (LOMC) and computer training classes should be accomplished in those years between training tours in active-

duty legal offices. The Reserve Forces Paralegal Course (RFPC) must be attended at least every four years. Each paralegal

must also attend the Annual Survey of the Law (ASL) every other year.

The Staff Judge Advocate is responsible for the training of paralegals; however, paralegals are individually responsible for developing and maintaining the skills and currency of experience to be immediate and effective performers in accordance

with all tasks outlined in the Paralegal CFETP. The Staff Judge Advocate is also responsible for ensuring the paralegal at-

tends required periodic paralegal courses and conferences.

Training records are maintained in the Training Business Area (TBA) for all paralegals until they are promoted to Master

Sergeant. For Master Sergeant paralegals in a retraining status, training records are to be maintained until they have at-

tained their 7-level proficiency. A record of the paralegal's annual training accomplishments (end-of-tour report), school

tours, PME and correspondence course completion, conference attendance, additional duty assignments and military/

civilian recognition must be maintained in TBA.

ANG paralegal training is an item of special interest during staff assistance visits. The Senior Judge Advocate should set

up a training program of one-hour period during each UTA day. This one-hour period should be used for proficiency train-

ing in specific areas ( _i.e._ , environmental law, board preparation and presentation, military justice, labor law, contracts, fiscal law, LOAC, ROE, etc.), review of upgrade training and PME, compliance with the Paralegal CFETP, and projection

of mandatory in-resident schools ( _i.e._ , Paralegal Apprentice, Craftsmen Course, RFPC), and other areas of specific interest regarding training.

**PROMOTABILITY TO MASTER SERGEANT**

Paralegals in the LOS position are authorized to be promoted to Master Sergeant. All commanders, upon the advice of

their Staff Judge Advocate, should promote qualified paralegals to this authorized grade.

**CONCLUSION**

Because of the ever-increasing necessary training requirements for paralegals, commanders should not only help recruit

and retain superior personnel for these positions, but should also provide maximum support and encouragement to en-

sure paralegals are able to fulfill these training requirements.

_**KWIK-NOTE: Paralegals are extremely valuable to the Air Force and Air National Guard. Recruit and retain only superior**_

_**personnel for these positions, and support their training.**_

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-14 Paralegals**_

_**Page 3**_

**RELATED TOPICS:**

**SECTION**

AFSC Reclassification and Training

1-3

ANG Assistants

1-4

Promotion of ANG Airmen

1-30

Inspections - Judge Advocates

17-4

Judge Advocate Support for ANG Units Deploying Overseas

17-5

Judge Advocate Training Regulation

17-6

Legal Assistance Program

17-8

Legal Office Operational Guidance

17-10

Legal Reviews

17-11

Notarial Acts

17-13

Preventive Law Program

17-15

Staff Assistance Visits - Judge Advocate

17-16

TJAG's ANG Council

17-17

Pre-mobilization Legal Assistance

20-4

Counseling

24-7

Training

26-2

_**Air National Guard Commander's Legal Deskbook**_

632

_**Chapter 17, Judge Advocate Matters**_

_**Section 17-15 Preventive Law Program**_

_**Page 1**_

**Preventive Law Program**

**Updated by Major John W. Erickson, Jr., July 2009**

**AUTHORITY:** AFI 51-504, _Legal Assistance, Notary, and Preventive Law Programs_ (27 Oct 03); AFPD 51-5, _Military Legal Affairs_ (27 Sep 93); TJAG Policy Letter 18, _Preventive Law and Legal Assistance Policy_ (4 Feb 98); applicable state law. 

## INTRODUCTION

**** The purpose of the Preventive Law Program is to educate commanders, members and their families on legal issues to prevent problems and reduce the time and resources needed to resolve legal problems. Preventing legal problems enhances

Command effectiveness and readiness, especially during periods of mobilization and deployment.

**UNIT MEMBERS AND PREVENTIVE LAW**

**Commander's Responsibilities**

All ANG commanders, through their Staff Judge Advocate, should establish a Preventive Law Program for their unit

which covers a defined range of permissible subjects, and should encourage their members to contact the SJA with any

legal problem they have; and perhaps more importantly, that they think they might have.

**Objective of Preventive Law Program**

The objective of your program is to provide information to educate Air National Guard members about laws and legal

procedures they need to know to avoid unnecessary problems in their personal and military lives.

**Who Runs Your Program?**

The unit Preventive Law Program should be administered by your Staff Judge Advocate. The SJA should be responsible

for obtaining the necessary materials for an effective program responsive to the needs of the unit members, and for dis-

seminating the information in ways that will fulfill those needs.

**Sources of Materials**

Fortunately, there is a wealth of material available, much of it free.

_**Air Force Judge Advocate General Project Pitfall Letters**_

These are a series of letters highlighting the laws, customs and practices in almost any country where ANG members

travel in the performance of duty. The letter for the particular country should be briefed to personnel deploying to that

country, and all aircraft commanders should have an updated set of the letters included in the materials they take on over-

seas missions.

_**In-Country Law Studies**_

These are in-depth analyses of the laws, customs and practices of foreign countries, and should be briefed to all person-

nel deploying to these countries. You should advise your Judge Advocate of upcoming foreign deployments far enough in

advance so your Judge Advocate can contact and obtain, from the active duty base legal office at or nearest the deploy-

ment site, the in-country law study for that country.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-15 Preventive Law Program**_

_**Page 2**_

_**TJAG Policy Letters**_

These are a series of letters written by the Judge Advocate General of the United States Air Force on a variety of subjects

affecting all Judge Advocates and "blue-suit" military members. They are periodically updated and every ANG base legal

office should have access to them.

_**Paired-Base System**_

Each ANG unit legal office should be paired with an active duty base legal office, and the personnel from each office

should arrange for the active duty legal office to regularly send the ANG unit Staff Judge Advocate all pertinent materials

the active duty legal office receives from the gaining MAJCOM and Numbered Air Force (NAF). This system was estab-

lished because there is no other way for ANG unit legal offices to receive these MAJCOM and NAF materials.

_**Your Base Law Library**_

As discussed in the topic in this _Deskbook_ entitled " _LAW LIBRARIES_ ," Commanders should support the obtaining of the required materials for the base law library. In addition to the required materials constituting the "Core Law Library,"

which every ANG base law library should have, there is much valuable material published by the Bar Association in your

state which is usually not too expensive, and in some states may be discounted or even free for government or military

organizations. These materials consist of pamphlets, books, forms books, etc., and provide a wealth of specific informa-

tion about your state's laws.

_**Training**_

You should send your JAGs to training courses offered by both the Air Force at Maxwell AFB and the Army at Charlottes-

ville, Virginia. Such courses provide a wealth of information for judge advocates, commanders and unit members.

_**ANG Commander's Legal Deskbook**_

The vast majority of the topics in this _Deskbook_ , when supplemented by applicable state law, are suitable, with appropriate adaptations, for your Preventive Law Program. Indeed, the major premise of the _Deskbook_ is preventive law -- for commanders and unit members. The _Deskbook_ is ANG-specific, offers much practical advice, and provides many topics in

briefing formats and with forms and checklists. You may wish to include topics on international law related matters in

the materials that aircraft commanders take with them overseas.

**Methods of Dissemination**

Some of the methods of getting the preventive law information out to the field include:

1. Oral presentations at:

a. Commanders' Calls;

b. Staff Meetings;

c. Base Committee Meetings;

d. Meetings of Private Organizations and Clubs;

e. Newcomer's Briefings;

f. Ancillary Training Briefings;

g. Commander and First Sergeant Seminars; and

h. Pre-Mobilization Legal Counseling Briefings;

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-15 Preventive Law Program**_

_**Page 3**_

2. Written Presentations through:

a. Base Newspaper Articles;

b. Periodic Bulletin Notices;

c. E-mailed Information;

d. Unit Bulletin Boards; and

e. Handouts and Pamphlets on Appropriate Topics of Interest;

3. Base Television and Radio Presentations; and

4. Cooperative Efforts with Other Staff Agencies.

**"Guts" of the Program**

The frequent dissemination of a wide range of materials on topical subjects in a variety of media, and permitting unit

members full access to the Staff Judge Advocate for legal assistance are the two main ingredients of any effective preven-

tive law program. Commanders can ensure the effectiveness of their programs by encouraging their Judge Advocates to

obtain and disseminate the necessary materials, and to provide legal assistance to unit members consistent with the

needs of those members and the Judge Advocates' other duties.

In today's society, almost everything we do, personally or professionally, has potential legal ramifications. Our conduct is controlled by law, and deviations from appropriate conduct in a given situation, however innocent, often have adverse

and far-reaching legal consequences. It is the avoidance of these adverse consequences that is the major premise of the

concept of preventive law.

The basic premise of preventive law is that education will help our military members to avoid situations that may have

adverse legal consequences and to take care of their affairs in manner that avoids legal issues.

This topic will be discussed in two parts: (1) the commander, and the decision-making process, and (2) the commander

encouraging all unit members to practice preventive law in their personal and professional lives.

**COMMANDERS' DECISIONS AND PREVENTIVE LAW**

**Law is Pervasive**

Not many institutions today are more heavily regulated than the military. As an Air National Guard commander, your

actions are governed by rules issued by multiple levels and governments, and include:

**Federal**

1. Statutes;

2. Regulations (Civilian);

3. Directives;

4. Air Force Instructions;

5. Air National Guard Instructions;

6. Local Policy Directives;

7. Court Decisions;

8. Messages; and

9. Policies from Civilian Agencies; DoD, the Air Force and the NGB.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 17, Judge Advocate Matters**_

_**Section 17-15 Preventive Law Program**_

_**Page 4**_

**State**

1. Statutes;

2. Regulations (Civilian);

3. Instructions and Policy Directives (Military);

4. Court Decisions; and

5. Policies.

**County and Municipal**

1. Ordinances;

2. Regulations; and

3. Rules.

To compound matters, you have to deal with different rules for military and civilian personnel. To make things more com-

plex, for military personnel you need to know the different rules for AGRs, technicians and traditional Guard members,

and for civilian personnel, the different rules for federal technicians and state employees. You also need to know which

set of rules applies to which persons based upon their status at a given time and the rules often overlap in application.

**The Modern Commander**

Today's ANG commanders accept the fact because so much of what they do may have legal consequences, an ever-

increasing part of their overall responsibilities involves taking steps to prevent problems from occurring. They realize prevention is less expensive and time-consuming, and more conducive to effective mission accomplishment.

**Think Preventive Law – the Step-by-Step Process**

But what steps can you take to help recognize a situation that has potential adverse legal consequences?

What we are proposing here is a sequential problem-solving or decision-making technique or approach for you to use for

_every_ problem which confronts you and for every decision you have to make. The initial steps involve your mental ap-

proach to problem-solving and decision-making. If you develop this approach or technique and follow these steps, you

should virtually eliminate the likelihood of getting "burned" later for not having considered the potential legal conse-

quences of a given situation.

Because so much of what you do has legal consequences, the first step in your decision-making process is to assume, un-

til you are advised otherwise, that _every situation you deal with_ has some legal consequence. You may not know what those consequences are, or if they will affect your decision making process but if you proceed from the outset as if there may

be those consequences, you will drastically decrease the likelihood of adverse consequences occurring later because you

did not consider them before you made your decision.

With all the sources of law that may impact one of your decisions, it is impossible for you to know "off the top of your

head" when you are first confronted with a matter that requires your decision, where all the pitfalls lie or how deep they

are. Your experience may have already provided you with some sense of potential legal consequences but you may not

always know the exact nature or extent of those consequences..

The second step is to fully educate yourself on the subject area; this usually means that you should consult with your

Staff Judge Advocate to help you identify specific legal issues or guidance.

Before you talk to your Staff Judge Advocate you can use this _Deskbook_ , and other resources to assist your in understanding some of the legal issues that may be involved in that situation. After reading the materials relating to your subject,

_**Air National Guard Commander's Legal Deskbook**_

636

_**Chapter 17, Judge Advocate Matters**_

_**Section 17-15 Preventive Law Program**_

_**Page 5**_

you should have more knowledge and practical insight about it, and you will know what staff people you need to consult,

and what to focus on with them when you do.

Finally, consult your staff including your Staff Judge Advocate. Since you will have educated yourself on the subject area

before the consultation, you will know what questions to ask to make a decision that fully considers any legal conse-

quences involved.

It saves you and your staff time if you learn the basics of a subject yourself before consulting them for one thing it will

help you identify what facts or factors are important to you analysis and decision making process.

**Effect of the Process on Commanders**

As you practice this approach, it will become second-nature. You will find the more you use it, the keener your "feel" will

be for when a decision before you has or may have adverse legal consequences. As you use this approach and gain experi-

ence as a commander, you will develop the "sixth sense," "red flag" or "bells and whistles" system to help you recognize

and seek to avoid adverse legal consequences. No matter how well developed your "sixth sense" becomes you should al-

ways consult your Staff Judge Advocate to make sure you are on target and that there has not been a change to the rele-

vant laws or regulations. This process is designed to facilitate communication between you and your SJA.

**CONCLUSION**

Commanders who develop the decision-making approach suggested in this topic will reduce the number of adverse legal

consequences emanating from their decisions. Commanders who, in coordination with their Staff Judge Advocates, estab-

lish an effective preventive law program will have unit members better able to perform their duties, improve retention,

and will more effectively accomplish their missions.

This topic should be read in conjunction with the topic entitled " _LEGAL ASSISTANCE PROGRAM_ " in this _Deskbook_ because much of the legal assistance provided your unit members is related to preventive law.

_**KWIK-NOTE: Commanders and unit members should THINK PREVENTIVE LAW.**_

**RELATED TOPICS:**

**SECTION**

Command Influence

2-2

Judge Advocate Support for ANG Units Deploying Overseas

17-5

Judge Advocate Training Regulation

17-6

Law Libraries

17-7

Legal Assistance Program

17-8

Legal Assistance to Unit Members and the Role of the Judge Advocate to the Commander

17-9

Legal Office Operational Guidance

17-10

Legal Reviews

17-11

Memoranda of Understanding (MOUs)

6-6

Newcomer's Briefing

1-22

Personal Affairs Checklist

20-3

Powers of Attorney

23-19

Pre-Mobilization Legal Counseling

20-4

Problem Solving - ANG and USAF Commanders – Similar and Different Approaches

2-6

Soldiers' and Sailors' Civil Relief Act (Federal and State)

20-5

Sources of Commanders' Authority

2-7

_**Air National Guard Commander's Legal Deskbook**_

637

_**Chapter 17, Judge Advocate Matters**_

_**Section 17-16 Staff Assistance Visits – Judge Advocate**_

_**Page 1**_

**Staff Assistance Visits - Judge Advocate**

**Updated by Major John W. Erickson, Jr., July 2009**

**AUTHORITY:** Staff Assistance Visits (SAVs) are accomplished by custom and are a function of Supervisory Authority by

HQ USAF, MAJCOM or a NAF over base legal offices.

**PURPOSE**

**** Staff Assistance Visits (SAVs) have been occurring more frequently in recent years at ANG legal offices. While such visits may be conducted by high-ranking active duty Judge Advocates in conjunction with their SAVs to nearby active duty stations, the more likely visitor is an ANG Judge Advocate Colonel assigned to the MAJCOM as the ANG Assistant to the

MAJCOM Staff Judge Advocate. The purpose of the visits is to _assist rather than criticize_.

**JUDGE ADVOCATE'S DUTIES**

Base level ANG Judge Advocates have very specific guidance to help them prepare for SAVs and may also obtain tips on

preparing for such visits from the ANG liaison to the numbered Air Force for your base. Your Judge Advocates should

also have sample briefing formats and checklists to prepare for SAVs.

**COMMANDER'S PARTICIPATION**

As commander, you should anticipate a personal conference with the officer conducting the SAV, usually at the end of the

day, when the visitor has had an opportunity to evaluate your Judge Advocate function and related areas such as the uri-

nalysis program and the weight control program. As commander you should anticipate and be prepared to discuss inquir-

ies concerning the status of computerization in the legal office, the quality and ambiance of the legal office facilities, and your use of your staff within the Judge Advocate office. If you want to demonstrate the high regard you have for your legal office staff, you may want to volunteer to personally "in brief" the visitor on your operational mission and possibly

share a meal with your legal office staff and the visitor if the visitor's and your schedules permit. A letter from you to the visitor in advance of the visit can also help set the tone for a cooperative and helpful SAV.

**CONCLUSION**

A successful SAV results in the legal office receiving valuable tips for more effective operation, which leads to better legal services for your unit.

_**KWIK-NOTE: Commanders should actively support their Judge Advocates during SAVs from other units, components or**_

_**higher headquarters.**_

**RELATED TOPICS:**

**SECTION**

ANG Assistants

1-4

Facilities - ANG

25-9

Inspections - Judge Advocates

17-4

Judge Advocate Training Regulation

17-6

Law Libraries

17-7

Legal Office - Operational Guidance

17-10

Paralegals

17-14

_**Air National Guard Commander's Legal Deskbook**_

638

_**Chapter 17, Judge Advocate Matters**_

_**Section 17-17 TJAG's ANG Council**_

_**Page 1**_

**TJAG's ANG Council**

**Updated by Maj John W. Erickson, Jr., July 2009**

**AUTHORITY:** ANGSCR 110-1, _Air National Guard Judge Advocate General's Council_ (TJAG's ANG Council).

**FUNCTION**

**** The TJAG's ANG Council counsels and advises The Judge Advocate General (TJAG), United States Air Force, and the Di-

rector, Air National Guard (NGB/CF), concerning matters regarding the Air National Guard Judge Advocate and Parale-

gal programs, policies and training, and performs other special assignments for TJAG and NGB/CF as directed.

The Council is the pulse of the ANG Judge Advocate and Paralegal programs as well as the eyes and ears of TJAG and

NGB/CF for ANG Judge Advocate and Paralegal affairs. The Council has developed and implemented, and monitors the

ANG Judge Advocates' and Paralegals' Training Regulation and the Rules for Professional Conduct for all ANG Judge Ad-

vocates. It was under the auspices of the Council that the _ANG Commander's Legal Deskbook_ has been published and maintained.

**MEMBERSHIP**

The TJAG's ANG Council is composed of the ANG Assistant to TJAG, currently a Major General's position, who is also

chair of the Council, ANG JAG MAJCOM Assistants, who are the ANG JAG Liaisons to those major commands, and a

Senior Enlisted Advisor who is also the Paralegal Career Field Manager, in the grade of E-9. There may also be up to six

other regular members of the Council who usually are ANG Judge Advocates in the rank of lieutenant colonel or higher,

and who serve on the Council as an extra duty in addition to their assigned duties as State Headquarters or Wing Judge

Advocates. In the discretion of the Chair, associate and adjunct members may be appointed to the Council for an ongoing

or temporary project in which the Council has an interest.

Membership on the TJAG's ANG Council is usually for a period of three years and at the discretion of the Chair.

The ANG Assistant to TJAG is designated the ANGSC/CC point of contact and coordinator for all TJAG ANG Council

members.

**MEETINGS**

The Council meets quarterly on dates set by the ANG Assistant to TJAG. The Council records its proceedings in Minutes

which are distributed to TJAG, NGB/CF, all members of TJAG's Department and all ANG commanders. The Council's

Minutes may be found on the web by judge advocate and paralegal personnel on the ANG webpage on FLITE. A quorum

for the Council consists of six members, and is required for the conduct of Council business.

The Council has quarterly meetings which are held within various USAF MAJCOMs and the ANG to familiarize the

Council and its invited guests with the Air Force and ANG missions.

Official travel necessary for Council business is normally supported by each Council member's home state or unit.

_**KWIK-NOTE: The Council sets policy, guidance and direction for all ANG Judge Advocates and Paralegals with the concur-**_

_**rence of TJAG and NGB/CF.**_

**RELATED TOPICS:**

**SECTION**

ANG Assistants

1-4

_**Air National Guard Commander's Legal Deskbook**_

639

_**Chapter 17, Judge Advocate Matters**_

_**Section 17-18 Witness Preparation**_

_**Page 1**_

**Witness Preparation**

**Updated by Major David A. Guten, January 2018**

**AUTHORITY:** Collective attorney trial experience. 

## INTRODUCTION

**** This topic is presented in two parts: The first concerns general pointers or guidelines all witnesses should follow when testifying in any kind of proceeding; and, the second explains why and how commanders and supervisors should testify

in administrative board proceedings.

**POINTERS FOR ALL WITNESSES**

Witness preparation can be one of the most challenging, if not frustrating, components of trial preparation; it varies from

case to case and from witness to witness. It also varies from attorney to attorney and certainly every attorney has his or

her own particular formula for proper witness preparation. "Preparing a witness" does not mean telling the witness what

to say, and there's a fine line between well-prepared and over-prepared. Testimony from an over-prepared witness can

seem prefabricated or otherwise artificial. The testimony should be the best possible and a well-prepared witness should

know what to expect and how to best prepare for testimony. The ultimate goal is to have the witness tell the truth.

Witnesses should be prepared to testify not only for the side that calls them as a witness (called direct examination), but

also to answer questions asked by the opposing side (called cross examination). Direct examination generally begins

with asking the witness their name, duty position and perhaps personal background before getting into the reason for

their testimony and details about the case. A witness may be asked to identify documents introduced into evidence and

any other facts relevant to the side that called them. During cross-examination the opposing attorney will generally have

two goals: Try to obtain testimony favorable to their version of events, and cast doubt on the witness' credibility.

These are some general guidelines a witness should know before testifying:

**BE PREPARED.** Tell the truth to the best of your ability. Don't try to memorize what you are going to say, but do re-

fresh your memory on those matters about which you will be asked questions. Try to recall the scene, the objects there,

the distances and just what happened. If the question is about distances or time and if your answer is only an estimate,

be sure to say it is only an estimate. Don't guess. Be as specific in your answers as the question requires and your mem-

ory permits. If you have notes, pictures or other documents you created or were made to help you remember, you can

consult those as well. Make sure your attorney knows about and has seen anything you use to refresh your memory.

**PRESENT A PROPER APPEARANCE.** Dress neatly. Military witnesses should be in a clean and pressed uniform and

epitomize AFI 36-2903. Civilian witnesses should be well-groomed and dress conservatively. Do not overdress, but dress

befitting the occasion. Women should avoid flashy jewelry and heavy make-up. Men should not wear earrings or open-

collared shirts with ostentatious neck jewelry. Do not come into court or testify while chewing gum or tobacco or with

anything in your mouth. When taking the oath, stand upright, pay attention and clearly say, "I do." Be conscious of and

avoid nervous mannerisms, which distract the panel, board or jury.

**SPEAK UP CLEARLY AND LOUDLY ENOUGH SO EVERY JUROR CAN HEAR YOU EASILY.** Keep your hands

away from your mouth. Don't nod for a "yes," or shake your head for a "no." Be serious in the courtroom and respectful

in your answers to the attorneys and the judge. Do not argue with an attorney.

**LISTEN CAREFULLY TO THE QUESTIONS ASKED OF YOU**. No matter how nice attorneys may seem on cross-

examination, they probably are trying to discredit you. That's their job. Understand the question, and if you don't, tell

them. You can ask to have a question repeated, if necessary, because you didn't hear or understand it. If you answer a

_**Air National Guard Commander's Legal Deskbook**_

640

_**Chapter 17, Judge Advocate Matters**_

_**Section 17-18 Witness Preparation**_

_**Page 2**_

question you didn't fully understand, the attorney and the jury will assume you did. Ask to have the question restated so

you fully understand what you're answering. Do not rush to answer the question; think about your answer before you

give it. Do not anticipate questions. Wait for the attorney to finish asking the question. Do not offer a snap answer with-

out thinking. Don't rush into answering; but, do not answer a simple question if you know the answer. If a question

makes you angry, pause to respond until you can answer rationally and reasonably.

**EXPLAIN YOUR ANSWER, IF NECESSARY.** Give the answer in your own words. Do not be forced into answering a

question "yes" or "no." You have the right to explain or qualify your answer.

**ANSWER ONLY THE QUESTION ASKED.** Do not volunteer information not actually asked. If your answer was not

correctly stated, correct it or clarify it immediately.

**DON'T SAY, "THAT'S ALL OF THE CONVERSATION" OR "NOTHING ELSE HAPPENED."** Instead say, "That's

all I recall," or "That's all I remember happening." It may be after more thought or another question, you will remember

something important.

**DON'T GET ANGRY.** Keep calm and always be courteous, even if the lawyer questioning you appears discourteous.

Don't appear to be a "cocky" witness. Any lawyer who can make a witness angry will probably cause the witness to exag-

gerate, appear biased and possibly even emotionally unstable.

**GIVE POSITIVE, DEFINITE ANSWERS, IF POSSIBLE.** Every material truth should be readily admitted, even if not

to the advantage of the party calling you. Do not stop to determine whether your answer will further help or hurt your

side. Just answer to the best of your memory without exaggeration. If asked about little details which a person naturally

would not remember, it is best to just say so if you don't remember. Saying, "I don't remember," or "I don't recall," is a

perfectly acceptable answer when truthful.

**IF YOU DON'T WANT TO ANSWER A QUESTION, DO NOT ASK THE JUDGE WHETHER YOU MUST AN-**

**SWER IT.** If the question is improper an objection will be made. Don't look at the attorney who has called you or at the judge for help in answering a question or for approval after answering a question. You are on your own. Rarely will you

have the option not to answer a question put to you under oath.

**SOMETIMES AN ATTORNEY MAY ASK YOU, "HAVE YOU TALKED TO ANYBODY ABOUT THIS CASE?"** If

you say, "no," the judge or jury knows that probably isn't true because you have probably spoken to one or both attor-

neys prior to your testimony. When asked, you should answer frankly you have talked with the lawyers, your family,

other witnesses, or whomever, but that no one told you what to say.

**FINALLY, BE YOUR SELF!** If you try to imagine you are talking to friends or neighbors on the jury you will be more

convincing and will do a fine job. Try to make eye contact with the board, panel or jury members. People naturally tend

to believe individuals who appear frank and forthright and look them in the eye when speaking.

**BOARD TESTIMONY - COMMANDERS AND SUPERVISORS**

Few considerations in administrative discharge board proceedings are more crucial to an effective presentation of the gov-

ernment's evidence than your preparation before testifying in front of the board.

You set the process in motion by recommending the discharge of an airman, and you should be both willing and able to

forthrightly testify before the board about the reasons for your recommendations. The discharge action is still very much

dependent on your participation, notwithstanding that other staff agencies are now responsible for its processing. A

board will always be interested in the problems which caused you to decide on discharge, and how you dealt with the in-

dividual. Although board members can read your recommendation letter, they will want to hear from you _personally_.

_**Air National Guard Commander's Legal Deskbook**_

641

_**Chapter 17, Judge Advocate Matters**_

_**Section 17-18 Witness Preparation**_

_**Page 1**_

As commander, you must be prepared to cite _specific examples_ of the respondent's misconduct or unsuitability. You should be familiar enough with the respondent's military record that you are not caught unaware when asked to state your appraisal of any aspect of the respondent's documented behavior, either while being interviewed by the recorder or while

actually testifying in the presence of a board.

Preparation includes your attitude while giving testimony to the board. If you present the appearance of an unconcerned,

noncommittal officer who is merely going through the motions of testifying, the board is less likely to favorably consider

your recommendation. You should instead demonstrate that what you seek is in the best interests of your unit, the Air

National Guard and the individual before the board. If you are prepared to elaborate on any feature of the case, you are

more likely to persuade others of the merits of your recommendations.

Equally important to the presentation of the case are the respondent's immediate supervisors. They work most closely

with the respondent and should be prepared to testify about the respondent in that context. Supervisors must be pre-

pared to explain their recommendations. Of special interest will be any inconsistencies between prior reports and the ac-

tion being taken. The supervisors should be prepared to testify concerning those inconsistencies.

_**KWIK-NOTE: If you are called to testify at any proceeding, contact your Staff Judge Advocate for further advice.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Courts-Martial

8-15

Boards – Investigative

16-4

Investigations and Inquiries

16-11

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

_**Air National Guard Commander's Legal Deskbook**_

642

**Chapter 18, Lawsuits and Liability**

**Table of Contents**

**Section**

18 - 1 Table of Contents

18 - 2 Claims

18 - 3 _Feres_ Doctrine

18 - 4 Indemnification Agreements

18 - 5 Judicial Review of Military Administrative Actions

18 - 6 Lawsuits Against National Guard Personnel

18 - 7 Liability of National Guard Legal Office Personnel

18 - 8 Liability of National Guard Medical Personnel

18 - 9 Personal Liability of Federal and State Officials

18 - 10 Deleted

18 - 11 Transportation of and Liability to Foreign Military Nationals and Their Dependents

_**Air National Guard Commander's Legal Deskbook**_

643

_**Chapter 18, Lawsuits and Liability**_

_**Section 18-2 Claims**_

_**Page 1**_

**Claims**

**Updated by Colonel Marshall Wilde, March 2015**

**AUTHORITY** : AFI 36-2910, _Line of Duty Determinations_ (4 Oct 02, Incorporating through Change 2, 5 Apr 10); AFI 51-501, _Tort Claims_ (15 Dec 05); AFI 51-502, _Personnel and Government Recovery Claims_ (01 Mar 97; Incorporating Changes 1, 31 Jul 08, and 2, 10 Nov 08); applicable state law.

**CLAIMS AGAINST THE GOVERNMENT BY THIRD PARTIES**

Claims for property damage, personal injury, or death allegedly caused by the action or inaction of ANG members, includ-

ing AGRs, who are performing training or duty under 32 U.S.C. 316, 502, 503, 504, 505; 10 U.S.C. 672(b) or (d) or

other federally funded training, and who are acting within the scope of their employment, are covered by ANGR 112-1

and AFI 51-501. Air National Guard claims are addressed in Section 5C of AFI 51-501.

CAVEAT: These regulations do not cover claims for negligent activities of Guard members who are, at the time of the al-

leged negligence, in non-federally funded state service. For claims arising from activities of Guard members on state ac-

tive duty, state law provides the exclusive remedy. This topic covers claims made against members arising out of some

type of federal military duty, including Title 10, Title 32, and IDT service.

Should you learn of a potential claim incident or receive an actual claim against a member of your unit, any component

of your unit, or the unit itself, immediately notify your State Claims Officer. This will probably be a full-time person at

State Headquarters, usually the full-time State Judge Advocate. ANG units do not adjudicate claims, but send them for-

ward for processing. The State Claims Officer must report all potential claims incidents to the nearest active-duty claims

office, which has the responsibility to process a resultant claim. While the active-duty forces have primary responsibility

to investigate and pay claims, the ANG will give necessary support to the active-duty claims office.

You should submit the following information to your State Claims Officer, if available, in your initial report:

1. The date, time, location, and nature of the incident;

2. A brief description of the damage, loss, injury, and/or death which occurred;

3. The names, addresses, and telephone numbers of any:

a. ANG personnel involved and documentation of their duty status;

b. Potential claimants;

c. Witnesses to the incident forming the basis of the claim; and

d. Law enforcement personnel who investigated the incident forming the basis of the claim.

You should use the most expeditious means possible to report this information to the State Claims Officer. Many states

have regulations or written guidance about the processing requirements for claims. Any questions you have or receive

concerning the status of a claim against your unit or any member in it should be referred to the State Claims Officer.

**CLAIMS AGAINST THE GOVERNMENT BY GUARD MEMBERS**

Guard members have the right to present claims under the Military Personnel and Civilian Employees Claims Act for

damage and/or loss to their personal property while in the performance of their duties. Should any member of your unit

_**Air National Guard Commander's Legal Deskbook**_

644

_**Chapter 18, Lawsuits and Liability Section**_

_**Section 18-2 Claims**_

_**Page 2**_

wish to make such a claim, refer the member to your State Claims Officer or the nearest active-duty claims office. AFI

51-502 will govern such claims. Your Staff Judge Advocate will have a point of contact at that active-duty claims office

and have established a working relationship with the claims office.

**CLAIMS IN FAVOR OF THE GOVERNMENT**

If the negligence of a third party results in damage to federal government property, report this to the State Claims Officer for processing in accordance with AFI 51-502.

Should the negligence of a third party result in personal injury to a Guard member who is subsequently treated at a mili-

tary medical facility, a report should be made to the State Claims Officer. If the medical care is rendered by a civilian

medical facility, send a copy of the authorization for admission of the member for treatment to the State Claims Officer.

You also need to advise the member: (1) not to sign a release or settle any claim resulting from the incident without noti-

fying the active-duty base claims officer; (2) that he or she must give the claims office a complete statement regarding

the facts and circumstances surrounding the incident; and (3) that he or she is required to cooperate in the United

States' attempts to recover the reasonable costs of the military medical care from the third party. Additionally, a Line of

Duty Determination pursuant to AFI 36-2910 will likely be necessary.

Any questions concerning claims should be referred to your unit SJA, your State Claims Officer, and the nearest active-

duty claims officer, who is also a Judge Advocate at that active-duty base legal office. The Related Topics below are some

of the areas affected by claims.

_**KWIK-NOTE: Your responsibilities for claims are two: (1) DOCUMENT the claims for or against the government IAW es-**_

_**tablished guidance; and (2) NOTIFY your State Claims Officer or the nearest active-duty claims office immediately upon re-**_

_**ceipt of a claim.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Line of Duty Determinations

1-19

Report of Facts and Circumstances of Death

1-35

State ANG Headquarters

2-8

Use of Firing Range by Local Police, Boy Scouts and Other Non-Military Persons or Groups

3-17

Theft and Vandalism Claims

8-19

State Active Duty

11-3

Relationship With Other Military Components

11-6

Status of National Guard Members

11-7

Releasing Information in Litigation

14-7

Claims – International

15-7

Aircraft Accidents and Safety Investigations Off-Base

16-2

Aircraft and Missile Accident Investigations and Reports

16-3

Disability of National Guard Members

18-3

Indemnification Agreements

18-4

Lawsuits Against National Guard Personnel

18-6

Personal Liability of Federal and State Officials

18-9

Relief From Civil Liability

18-10

Transportation of and Liability to Foreign Military Nationals and Their Dependents

18-11

CPR Training and Potential Liability

19-5

Motor Vehicle Accident Reporting

21-5

Payment for Health Care Treatment of ANG Members Reports of Survey

25-19

Car Rentals by National Guard Members

27-2

_**Air National Guard Commander's Legal Deskbook**_

645

_**Chapter 18, Lawsuits and Liability**_

_**Section 18-3 The Feres Doctrine**_

_**Page 1**_

**The _Feres_** **Doctrine**

**Updated by Colonel Marshall Wilde, March 2015**

**AUTHORITY** : _Feres v. United States_ , 340 U.S. 135 (1950); _Chappell v. Wallace_ , 462 U.S. 296 (1983); _U.S. v. Stanley_ , 483 U.S.

669 (1987); applicable state law. 

## INTRODUCTION

Although the federal government has waived its sovereign immunity from lawsuits through the Federal Tort Claims Act

(FTCA) and permitted individuals to sue the United States in certain situations, the U.S. Supreme Court ruled that a

military member could not recover under the FTCA for injuries "which arise out of or are in the course of activity inci-

dent to service." The reasons given by the Court for prohibiting suits by military members include the adverse impact on military discipline if such suits were allowed, and the availability of an alternate compensation system for injured service members. This ruling has come to be known as the " _Feres_ Doctrine."

**APPLICABILITY**

The _Feres_ doctrine applied initially only to common law tort claims, such as medical malpractice, slip and fall cases, and accidents involving injury or property damage. Later rulings by the Supreme Court have applied the rationale behind the

doctrine to find immunity in Constitutional tort cases ( _Chappell v. Wallace_ , 103 S.Ct 2362 (1983) and _U.S. v. Stanley_ , 107

S.Ct. 3054 (1987)). With limited exception, the federal courts of appeals have increasingly held that damages claims

brought by National Guard technicians are barred by the _Feres_ doctrine, in view of the military aspects of their dual-status positions. The _Feres_ doctrine does not preclude recovery under compensation provisions of the military disability system or civilian personnel administrative system.

**CLAIMS OR LAWSUITS BY MILITARY FAMILY MEMBERS AND RETIREES**

The Feres Doctrine extends not only to claims by the service (including National Guard) members themselves, but also

to family members and beneficiaries of the member _if their claims are derived from or based on the alleged negligence committed_ _upon the member._ If family members have a separate or independent claim under the law, they may present it under the FTCA, and are not barred by the _Feres_ doctrine.

As an example, if a service-member dies as the result of malpractice by an on-duty military physician, _Feres_ bars the claim of the service-member's spouse and children. However, if a non-military spouse dies on the operating table, the spouse's

claim would not necessarily be barred because that claim is not derived from, but independent of, the claim of the

service-member. Retirees or those separated from the Guard may sue under the FTCA for alleged negligence which oc-

curs after their retirement or separation. If, however, their claims are based on acts that occurred during their period of

service, the claim will be barred by _Feres_.

**COMMANDER'S ACTION**

Should a member of your unit submit a claim pursuant to the FTCA, you should immediately contact your unit SJA and

State Claims Officer. Even though you are now aware of the potential bar against such claims, you have no authority to

deny them. You must refer the claim to the active-duty base with responsibility for these claims. If the member files a

lawsuit, you should notify the State Claims Officer, who will in turn notify NGB-JA.

_**KWIK-NOTE: Immediately notify your State Claims Officer if you or a unit member receives any claims or lawsuits based on**_

_**acts allegedly committed during the performance of duty. You have no authority to deny a claim based on the Feres Doctrine,**_

_**or to even respond to such claim or lawsuit.**_

_**Air National Guard Commander's Legal Deskbook**_

646

_**Chapter 18, Lawsuits and Liability**_

_**Section 18-3 Feres Doctrine**_

_**Page 2**_

**RELATED TOPICS:**

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**SECTION**

Injuries to Civilian Employees

5-4

Status of National Guard Members

11-7

Releasing Information in Litigation

14-7

Claims

18-2

Lawsuits Against National Guard Personnel

18-6

Liability of National Guard Legal Office Personnel

18-7

Liability of National Guard Medical Personnel

18-8

Personal Liability of Federal and State Officials

18-9

Relief From Civil Liability

18-10

Transportation of and Liability to Foreign Military Nationals and Their Dependents

18-11

Motor Vehicle Accident Reporting

21-5

_**Air National Guard Commander's Legal Deskbook**_

647

_**Chapter 18, Lawsuits and Liability**_

_**Section 18-4 Indemnification Agreements**_

_**Page 1**_

**Indemnification Agreements**

**Updated by Colonel Marshall Wilde, March 2015**

**AUTHORITY** : 31 USC §1341(a), AFI 32-2001, _Fire Emergency Services Program_ (27 Feb 14); AFI 41-108, _Training Affiliation_ _Agreement Program_ (22 Sep 14); ANGI 36-8001, _Air National Guard Traditional Guard Member Telecommuting Policy_ (21 Jan 12); applicable state law and regulations.

**PURPOSE**

An Indemnification Agreement binds the parties to pay damages to one party to the agreement who was injured as a re-

sult of acts or omissions of the other party to the agreement. Absent an Indemnification Agreement, the injured party

must rely on state law or federal law for a right of recovery against the party who caused the injury. _Commanders do not_ _have authority to sign Indemnification Agreements_ unless they have express authority from the state or the federal government to do so. Such authority usually is given in the procurement area presided over by the base Contracting Officer.

**ANG INDEMNIFIES**

Contractors may ask commanders to sign contracts which include Indemnification Agreements, in their capacity as

agents of the government, or when outside organizations volunteer services to a unit. If, for example, the Boy Scouts vol-

unteer to clean up the unit's facilities, the Boy Scouts may want the commander to agree to indemnify the Boy Scouts if

one of their members is injured, injures another Boy Scout, or injures a member of the unit. By signing that Indemnifica-

tion Agreement, the commander has, without authorization, exposed the unit, the state and potentially the federal gov-

ernment to liability.

**ANG IS INDEMNIFIED**

Rather than agreeing to indemnify the Boy Scouts, the commander might insist that the Boy Scouts indemnify the Na-

tional Guard to relieve the National Guard from liability if an injury arises from the Boy Scouts' activities in or on the

unit's facilities. While such a request appears harsh in this set of facts, it would be reasonable and proper if the Boy

Scouts asked to use the armory or handle weapons. Some states require such an indemnification as a matter of state law

and may require a surety bond as well as additional conditions for any private party to use state armories or bases.

**EFFECT**

If state law permits the commander to sign an agreement where the ANG indemnifies others, the commander should

carefully review it with the Staff Judge Advocate to ensure proper authority to commit the government to indemnifica-

tion. When individuals perform acts or services relying on Indemnification Agreements, the courts will try to find a way

to enforce them even if the indemnifying party (usually the state or the ANG) signed the agreement without proper

authority. Similarly, when the unit allows the use of a facility by private parties pursuant to a lease or armory use agree-

ment where the private party indemnifies the Air National Guard and the state, the courts will also try to find a way to

prevent recovery against the state or federal government by those private parties in the event they are injured.

Remember, whenever you, as commander, are asked to sign something calling for you, in your official capacity, to agree

on behalf of the state or federal government to indemnify some individual or organization, your mental RED FLAG

should be raised. Consult with your Staff Judge Advocate before signing such a document to determine your authority to

do so; and even if you have the authority, whether you should sign such an agreement.

_**KWIK-NOTE: Never sign an Indemnification Agreement obligating the government to pay damages to third parties without**_

_**first consulting with the SJA. This topic should be supplemented with applicable state law and regulations.**_

_**Air National Guard Commander's Legal Deskbook**_

648

_**Chapter 18, Lawsuits and Liability**_

_**Section 18-4 Indemnification Agreements**_

_**Page 2**_

**RELATED TOPICS:**

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**SECTION**

Lawsuits Against National Guard Personnel

18-6

Personal Liability of Federal and State Officials

18-9

Relief From Civil Liability

18-10

_**Air National Guard Commander's Legal Deskbook**_

649

_**Chapter 18, Lawsuits and Liability**_

_**Section 18-5 Judicial Review of Military Administrative Actions**_

_**Page 1**_

**Judicial Review of Military Administrative Actions**

**Updated by Colonel Marshall Wilde, March 2015**

**AUTHORITY** : _Speigner v. Alexander_ , 248 F.3d 1292 (11th Cir. 2001), _Schnitzer v. Harvey_ , 389 F.3d 200 (D.C. Cir. 2004), _Newton v. Lee_ , 677 F.3d 1017 (10th Cir. Utah 2012), _Koury v. Sec'y, Dep't of the Army_ , 488 Fed. Appx. 355 (11th Cir. Ala.

2012), and others.

**JUDICIAL REVIEWS ARE DECREASING**

In the past, disgruntled military personnel could, subject to a judicial balancing test, obtain federal court review of military administrative personnel actions. Members could allege a violation of their constitutional rights or that the military

itself had violated its own regulations or applicable statutes. _See_ _Mindes v. Seaman_ , 453 F.2d 197 (5th Cir. 1971). More recently, the Supreme Court and the lower federal courts have demonstrated an increasing reluctance to impinge on mili-

tary decision-making through judicial review.

**ACTIONS SEEKING DAMAGES**

In _Feres v. United States_ , 340 U.S. 135 (1950), the Supreme Court held the United States is not liable under the Federal Tort Claims Act for injuries to service members where the injuries arise out of or are in the course of activity incident to military service. In 1983, the Supreme Court expanded this doctrine significantly by applying it outside the Federal Tort

Claims Act context to bar constitutional claims for damages against superior officers. _Chappell v. Wallace_ , 462 U.S. 296

(1983). Thereafter, in _United States v. Stanley_ , 483 U.S. 669, the Supreme Court clarified that the broad "incident to service" test established in _Feres_ applies to constitutional claims brought by military members against federal officers. After _Stanley_ , several federal circuit appeals courts determined that state officers, like federal officers, are entitled to the same degree of immunity from civil suits. As a result of these cases, a military member has no judicial cause of action for

monetary damages based on an injury incident to service.

In deciding whether an injury is "incident to service," courts generally consider: (1) the duty status of the service mem-

ber; (2) the place where the injury occurred; and (3) the activity the member was engaged in at the time of the injury.

While all of these factors are clearly relevant when the injury is a traumatic injury, the first factor of duty status is the prime determinant when the injury alleged is that inflicted by a personnel decision, such as a failure to promote or decision not to retain a member. _See_ _Speigner_ (Where action against the Adjutant General was based on selective non-retention of an officer, the court applied the above factors and found the injury "incident to service.")

**ACTIONS SEEKING INJUNCTIVE RELIEF**

In some cases, the military member may not seek monetary damages but may, instead, ask the court to order injunctive

relief, such as reinstatement or promotion. No clear answer exists whether a court will allow this, although courts are

increasingly less likely to intervene in discretionary military decisions such as personnel actions. For an example, _see Han-son v. Wyatt_ , 552 F.3d 1148 (10th Cir. Okla. 2008).

_**KWIK-NOTE: Military members may not maintain lawsuits seeking monetary damages for adverse personnel actions. How-**_

_**ever, in some states, they may be able to obtain injunctive relief.**_

**RELATED TOPICS:**

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**SECTION**

Active Duty - Air National Guard Members

11-2

Claims

15-7

_Feres_ Doctrine

18-3

Lawsuits Against National Guard Personnel

18-6

_**Air National Guard Commander's Legal Deskbook**_

650

_**Chapter 18, Lawsuits and Liability**_

_**Section 18-6 Lawsuits Against National Guard Personnel**_

_**Page 1**_

**Lawsuits Against National Guard Personnel**

**Updated by Colonel Marshall Wilde, March 2015**

**AUTHORITY** : 32 U.S.C. 502-505; 28 U.S.C. 1346(b), 2402, 2671, 2672, 2674-2680, _Federal Tort Claims Act_ ; Federal Rules of Civil Procedure, Rule 4; AFI 51-501, _Tort Claims_ (15 Dec 05); AFI 51-502, _Personnel and Government Recovery Claims_ (01 Mar 97); applicable state law. 

## INTRODUCTION

National Guard personnel may be sued in either their official National Guard capacity or their individual capacity for

wrongful acts or omissions (called "torts") allegedly committed in the performance of their official duties. If and when

this happens, both the commander (who often will be sued as an individual defendant as well as in their official capacity

as commander), and the other Guard personnel sued need to know their rights, duties and exposure.

If National Guard personnel are sued for acts allegedly committed in the performance of their duties, there are two basic

things they want and need to know: who will represent them in the lawsuit, and who will pay any money judgment or

claim adjudicated against them. The answers to these questions depend upon:

1. The status the member was in at the time of the alleged wrong;

2. Whether the member is a state employee;

3. Whether the member was or was not acting within the scope of employment at the time of the alleged wrong;

4. The timeliness of the member's notification to the appropriate state or federal authorities of being sued; and

5. The cooperation by the member with those authorities during the lawsuit.

**FEDERAL TORT CLAIMS ACT**

The Federal Tort Claims Act is a federal statute that waives what is referred to as "sovereign immunity" against the U.S.

Government. That means people can sue the federal government in certain cases. Your state may have a similar law

which permits an individual to sue the state under certain circumstances. National Guard personnel are deemed state

employees under many states' laws, but are most commonly in a duty status covered by the FTCA. The FTCA provides

coverage for personal injury or property damage caused by the negligence of government employees. However, the status

of the individual claimant or the individual being sued, and the nature of the incident may take the claim out of the cover-

age provisions of the FTCA.

The FTCA offers personal immunity from suit for common law torts to Guard members who were in Title 10, Title 32, or

IDT status and acting within the scope of employment at the time of the alleged conduct leading to the lawsuit. Usually,

the federal government will be substituted as defendant in place of the Guard member and the case removed to federal

court. However, if the suit against the government is otherwise barred (certain causes of action, primarily intentional

torts, may not be brought under the FTCA), the plaintiff may attempt to show that the service member was acting "out-

side the scope" of employment, to prevent substitution of the government as a defendant.

**CLAIMS BY FEDERAL CIVILIAN EMPLOYEES**

Claims for personal injury or death incurred in the performance of duty by a civilian employee of the federal government

are not covered under the FTCA. But civilian employee claimants are not without a remedy, since the Federal Employees'

Compensation Act (5 U.S.C. 8116) provides the exclusive remedy for these claims. Claims by civilian employees for prop-

erty damage to their privately owned vehicles or other personal property incurred incident to service may be payable un-

der the Military Personnel and Civilian Employees Claims Act, or if not incident to service but caused by the negligence

of Government personnel, under the Military Claims Act.

_**Air National Guard Commander's Legal Deskbook**_

651

_**Chapter 18, Lawsuits and Liability**_

_**Section 18-6 Lawsuits Against National Guard Personnel**_

_**Page 2**_

**HOW DO YOU KNOW IF YOU ARE BEING SUED, AND WHAT DO YOU DO IF YOU ARE?**

If you or a member of your unit receives a letter from an attorney complaining about activities of the unit or of one or

more of your members causing injury or property damage to the attorney's client, call your unit SJA and the State Claims

Officer immediately. While this letter is not the official paperwork to start a lawsuit against you (referred to by lawyers

as a "summons," "complaint," or "petition"), some state statutes require notice to the government or its agencies within

a certain period prior to starting a lawsuit against them. If you are presented with legal documents (such as a summons,

complaint or petition) by a sheriff, sheriff's deputy, or other legal process server, that indicate a lawsuit against you may have been filed, you should immediately notify your unit SJA and the State Claims Officer.

Each state National Guard has a State Claims Officer. This is the individual you need to contact immediately should you

or any member of your unit receive notice of being sued for actions arising out of ANG duties. The processing of a law-

suit will depend upon the status of the Guard member alleged to have been negligent at the time of the alleged occur-

rence. In some cases, the matter will be referred to the State Claims Officer for handling through State channels. In other

instances, the nearest active duty Air Force installation Claims Office will be contacted. You must also report all lawsuits and potential lawsuits involving the National Guard to be reported to NGB-JA immediately upon receipt. Whether a federal interest appears to be involved, this necessary lead-time will permit the NGB to participate in the decision to request any necessary Department of Justice legal representation for the persons being sued. Contact with NGB-JA through your

State Headquarters.

Why the rush? Many states and the federal courts require defendants in civil suits to answer within twenty (20) days of

being served with the lawsuit. If an answer is not filed, the plaintiff(s) could enter a default judgment against the unit

and the individual Guard member being sued. More importantly, you may have much less time than that to notify the

State Claims Officer if you want to secure government (free) legal representation for you, and trigger the applicable pro-

tections you may have regarding governmental or personal immunity from suit or governmental indemnification of your

personal liability for the payment of damages.

The investigation of any claim or lawsuit against the unit or a member of the unit will be made by the State Claims Offi-

cer or the nearest active duty claims officer located in that base's legal office. The principal objectives of a full and complete investigation are to gather, preserve, and protect evidence. This is a necessary step to protect both the Guard mem-

bers involved and the government's interest. Also, because of the differences between federal and state law, a claimant or

plaintiff may "shop" for a convenient forum in which to file suit. Thus, unit members served with court papers involving

their ANG service must timely notify their commander so that both state and federal officials can determine how to, and

who will defend the member in the lawsuit.

**REPRESENTATION AND INDEMNIFICATION**

As a result of their status, Guard members may, in many cases (1) be defended by their State Attorney General or the

U.S. Department of Justice (DoJ), depending in part on whether state or federal interests or issues are involved, and in

what court the lawsuit is filed; (2) have their name removed from a lawsuit and the government substituted as a defen-

dant; (3) be indemnified (the government might pay any judgment against the member), by the state or federal govern-

ment in any civil lawsuit in any state or federal court, if the lawsuit arose out of any act or omission which occurred, or is alleged in the lawsuit to have occurred, while the Guard member was acting within the scope of public employment or

duties, or if the lawsuit is brought to enforce a provision of 42 U.S.C. Sections 1981 or 1983 (Civil Rights cases).

If you, as commander, or an individual of your unit has been sued in an individual capacity, you may be entitled to repre-

sentation by the DoJ or State Attorney General's office. Therefore, you need to contact your unit SJA and State Claims

Officer immediately upon receipt of notice of a lawsuit to ensure a timely request for such representation is made by all

those who are sued in their individual capacity. If you or members of your unit are sued in an official capacity, no such

request for government representation may be required. The determination of whether you are being sued in an individ-

ual or official capacity will ultimately be made by the court.

_**Air National Guard Commander's Legal Deskbook**_

652

_**Chapter 18, Lawsuits and Liability**_

_**Section 18-6 Lawsuits Against National Guard Personnel**_

_**Page 3**_

Often, as conditions of invoking the State Attorney General's or DoJ's authority to defend a Guard member, the Guard

member must deliver to the State Attorney General or DoJ the original or a copy of any summons, complaint, petition,

process, claim, notice, demand or pleading within a short time (sometimes as little as five (5) days) after being served,

and must cooperate fully in any subsequent proceeding in which the government is defending the member.

Guard members may be entitled to representation by private counsel instead of representation by the State Attorney Gen-

eral or DoJ, if the Attorney General or DoJ declines to appear; for example, for reasons of conflict of interest. If such representation is approved, the state or federal government will pay the attorney. The choice of attorney may be somewhat

restricted, because the fees paid by the government are capped by law at a level below the going rate in many areas. If a

private counsel is not approved by the State Attorney General or DoJ, such counsel is at the member's own expense.

**INDEMNIFICATION AND SETTLEMENT**

The state or federal government may agree to pay a judgment obtained against its military members in any state or fed-

eral court, or to pay any claim settlement, provided the act or omission which is the basis of the lawsuit or claim against

the Guard member, occurred while the member was performing authorized duty. However, this is discretionary on the

part of the government, and there is no absolute responsibility to indemnify, even if the agency position is that the indi-

vidual did nothing wrong.

Any settlement usually must have the prior approval of the State Attorney General or DoJ, and of the State's Adjutant

General, before payment by the state or federal government will be authorized. The state or federal government will usu-

ally not be responsible for parts of settlements, awards or judgments to the extent they consist of punitive or exemplary

damages, fines or penalties.

**CONCLUSION**

Once a military member is sued, immediately notify the next higher headquarters. Retain the suit or claim papers re-

ceived. A determination will be made if, and which agency, federal or state, will defend the military member. Failure to

timely notify the appropriate officials may forfeit any rights to free legal representation and, ultimately, indemnification.

Any questions about claims or litigation arising from military operations or training should be referred to your SJA.

_**KWIK-NOTE: Upon receipt of ANY indication, orally or in writing, that you or a unit member has been or may be sued, ei-**_

_**ther in an official or individual capacity, IMMEDIATELY notify your SJA and State Claims Officer. DO NOT LET EVEN**_

_**ONE DAY PASS.**_

**RELATED TOPICS:**

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**SECTION**

State ANG Headquarters

2-8

Civilian Warrants and Process - Service On Base

3-8

Discrimination Complaints - Military

9-3

Discrimination Complaints - Technician

9-4

AGR Program

11-4

Status of National Guard Members

11-7

Releasing Information in Litigation

14-7

Claims

18-2

Feres Doctrine

18-3

Indemnification Agreements

18-4

Liability of National Guard Legal Office Personnel

18-7

Liability of National Guard Medical Personnel

18-8

Personal Liability of Federal and State Officials

18-9

Relief From Civil Liability

18-10

_**Air National Guard Commander's Legal Deskbook**_

653

_**Chapter 18, Lawsuits and Liability**_

_**Section 18-7 Liability of Air National Guard Legal Office Personnel**_

_**Page 1**_

**Liability of Air National Guard Legal Office Personnel**

**Updated by Colonel Marshall Wilde, March 2015**

**AUTHORITY** : 10 U.S.C. 1054; AFI 51-504, _Legal Assistance, Notary, and Preventive Law Programs,_ ( _27 Oct 03, Incorporating_ _Through Change 4, 22 Oct 14_ ); ANGI 36-8001, _Air National Guard Traditional Guard Member Telecommuting Policy_ (21 Jan 12); ANGI 51-504, _Air National Guard Legal Assistance Program_ (20 Nov 14). 

## INTRODUCTION

Their military status notwithstanding, Judge Advocates, paralegals, and other members of the legal staff may find them-

selves named as defendants in actions brought in federal or state court. Thus, they retain an interest in malpractice pro-

tection even outside their civilian practice arenas.

**PROTECTION**

Title 10 of the United States Code, Section 1054, provides the _exclusive_ remedy for damages for injury or loss of property caused by the negligent or wrongful act or omission of an attorney, paralegal, or other member of a legal staff in connection with providing legal services while they are acting within the scope of their duties or employment. If sued, the legal

staff member will be defended in any court by the Attorney General of the United States. Certain states have also enacted

laws providing for legal representation and indemnification against loss resulting from such malpractice suits.

**REQUIREMENTS**

Two procedural requirements must be met for defense by the Attorney General. First, all process received by the legal of-

fice defendant must be timely delivered to the Attorney General, among others, through that person's supervisor or an

official designee. Second, the Attorney General must certify that the defendant "was acting in the scope of such person's

duties or employment at the time of the incident" to allow removal to the local federal district court and determination

of the action as a tort claim.

The second of these requirements demands that the legal office member was in a Title 10, Title 32, or IDT duty status at

the time the legal assistance was rendered. When telecommuting, ANGI 36-8001 provides, "Personnel will be entitled to

the same protections and indemnification under the Federal Tort Claims Act as would be available if the services pro-

vided herein were provided at the unit during a Unit Training Assembly (UTA) or during scheduled active duty." Proof of

this duty status can include orders, NGB 105s, or telecommuting logs.

The failure to keep a telecommuting log thus violates not only the terms of the telecommuting agreement, but also ex-

poses the member to potential liability. Additionally, the legal services provided and at issue must have been within the

scope of the legal staff member's employment. For example, wills and powers of attorney prepared by the JAG on behalf

of a unit member who is preparing for mobilization are considered mission-related – IAW ANGI 51-504 -- while advice

concerning a private business is not.

_**KWIK-NOTE: Legal office personnel must be in a duty status when providing legal assistance to be covered for malpractice.**_

**RELATED TOPICS:**

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**SECTION**

Legal Assistance Program

17-8

Legal Assistance to Members and the Role of The Judge Advocate to The Commander

17-9

Lawsuits Against National Guard Personnel

18-6

Personal Liability of Federal and State Officials

18-9

Relief from Civil Liability

18-10

_**Air National Guard Commander's Legal Deskbook**_

654

_**Chapter 18, Lawsuits and Liability**_

_**Section 18-8 Liability of Air National Guard Medical Personnel**_

_**Page 1**_

**Liability of Air National Guard Medical Personnel**

**Updated by Colonel Marshall Wilde, March 2015**

**AUTHORITY** : Federal Tort Claims Act (28 U.S.C. 2671 _et seq_ ); Gonzalez Act (10 U.S.C. 1089); Federal Employees

Liability Reform and Tort Compensation Act of 1988 (28 U.S.C. 2679).

**PROTECTION**

The Federal Tort Claims Act (FTCA) permits the victims of medical malpractice (other than military personnel) to pre-

sent claims against and to sue the United States for their damages. The FTCA and the Gonzalez Act give ANG medical

personnel in Title 10, Title 32, and IDT duty status the protection accorded to federal employees. As such, the FTCA

process is the only way for a claimant to recover for damages allegedly committed by ANG medical personnel in the per-

formance of their duties. Individual suits against medical personnel for duty claims are defended by the United States

and the United States is generally substituted for the individual as the defendant as part of that process.

The FTCA applies only to torts committed within the United States. The shortcoming of the Gonzalez Act is it does not

clearly state the result with respect to malpractice committed outside the United States. As a consequence, a series of

lawsuits in the 1980s involved the issue of the military physician's individual liability for acts committed outside the

United States. The Supreme Court eventually ruled physicians are not liable to be sued in their individual capacity under

such circumstances ( _United States v. Smith_ , 499 U.S. 160 (1991)). The Supreme Court relied on the language of the Federal Employees Liability Reform and Tort Compensation Act of 1988 which provides immunity of government employees

from suit.

**DUTY STATUS**

As long as health care personnel, including those in AGR status, are performing treatment as part of their regular duties

as National Guard members, then the treatment is within the scope of their employment and health care personnel are

covered by the FTCA. However, in order for the treatment given to be deemed within the member's scope of employ-

ment for FTCA purposes, it must be authorized treatment. Also, the personnel providing that care must be in a training

or duty status category to be covered. If the care is provided by the National Guard medical personnel while not in a fed-

eral training or duty status, they are not covered by the FTCA and are personally liable for any torts they may commit,

subject to any state laws which may provide liability protection for such health care personnel in such situations. Na-

tional Guard medical personnel in a Title 10 or Title 32 status who render medical treatment within the scope of their

duties cannot be personally liable for negligence or malpractice.

_**KWIK-NOTE: Make sure your medical personnel know what treatment they are authorized to render. Their protection from**_

_**liability for negligence depends upon it.**_

**RELATED TOPICS:**

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**SECTION**

Feres Doctrine

18-3

Indemnification Agreements

18-4

Lawsuits Against National Guard Personnel

18-6

Personal Liability of Federal and State Officials

18-9

Relief From Civil Liability

18-10

Ambulance Response Off-Base

19-3

CPR Training and Potential Liability

19-5

Medical and Dental Care During Inactive Duty Training

19-8

_**Air National Guard Commander's Legal Deskbook**_

655

_**Chapter 18, Lawsuits and Liability**_

_**Section 18-9 Personal Liability of Federal and State Officials**_

_**Page 1**_

**Personal Liability of Federal and State Officials**

**Updated by Colonel Marshall Wilde, March 2015**

**AUTHORITY** : Federal Tort Claims Act (FTCA), Title 28, United States Code, Sections 1346(b), 2402, 2671, 2672, and

2674-2680; 28 C.F.R. Part 14, _Administrative Claims Under Federal Tort Claims Act_ ; _Feres v. United States_ , 340 U.S. 135 (1950). 

## INTRODUCTION

Individuals who feel they have been wronged by a military member may file suit against the ANG, the individual mem-

ber, and the individual's Commander for a violation of their constitutional or common law rights. Individuals may sue

military members in their individual capacities or official or representative capacities seeking money damages for alleged

violations of these rights. The state or federal government normally will represent military employees sued for acting

within the scope of their employment. "Scope of employment" generally refers to those official and authorized activities

which further the business of the government. The employee may retain independent counsel if desired, but at the em-

ployee's own expense.

**LAWSUITS FROM OUTSIDE THE GOVERNMENT**

Lawsuits seeking money damages against federal officials have become more frequent. Generally, officials get sued for

constitutional torts (deprivation of rights), common law torts, (negligence and personal injury), or for a combination of

these. Plaintiffs' attorneys are becoming more creative in alleging causes of action against the government and its offi-

cials. Persons bringing lawsuits centered on alleged harm to them by the government usually do so under authority of

the Federal Tort Claims Act, by which the federal government has waived its sovereign immunity. In so doing, these plain-

tiffs seek redress directly against the government and its large treasury, and there is no ironclad guarantee this will be

the full scope of their attack. Sometimes, claims against individuals are included, which is addressed below.

**IMMUNITY AND INDEMNIFICATION**

"Immunity" is protection from the lawsuit itself. If immunity applies, no liability exists, and the lawsuit will be dis-

missed. "Indemnification" means that, although no immunity exists from the lawsuit, if liability is found against the offi-

cial, any money damages awarded will be paid by the government on behalf of that official. In either case, the official will not personally have to pay a money judgment. However, a decision on whether to indemnify an official is not made until

after the lawsuit is resolved and a money judgment is rendered.

Immunity is not automatic for public officials against a lawsuit. Generally, absolute immunity for government officials

applies only when (1) the official acted within the scope of official duties, and (2) the conduct was discretionary in na-

ture. To receive protection, the defendant must have exercised more than "minimal discretion." Absolute immunity de-

feats a suit at the outset, so long as the official's actions were within the scope of the employment. Absolute immunity is

normally not available to federal officials as a defense in suits alleging constitutional violations. But government drivers, doctors performing official duties, and attorneys and paralegals engaged in legal services within the scope of their duties, may not be sued in their individual capacities.

Even if absolute immunity from suit is not available as a defense, "qualified immunity" may be available. To obtain quali-

fied immunity, an official must show by objective standards the official did not violate "clearly established" constitutional or statutory guarantees of which a reasonable person would have known. "Objective standards" mean whether a reasonable official could have believed the conduct was lawful. A military member sued for a constitutional tort may defend on

the basis of qualified immunity. If a violation of constitutional rights is established, qualified immunity may apply if the federal employees sued can prove they neither knew nor should have known of the relevant legal standard.

_**Air National Guard Commander's Legal Deskbook**_

656

_**Chapter 18, Lawsuits and Liability**_

_**Section 18-9 Personal Liability of Federal and State Officials**_

_**Page 2**_

Immunity from suit may also be present through application of the _Feres_ Doctrine when a military member sues another military member for injuries occurring incident to military service.

The Federal Employees Liability Reform and Tort Compensation Act of 1988 now gives federal employees absolute per-

sonal immunity from liability for state common law torts ( _e.g._ negligence, libel, slander, assault, battery, trespass), as long as they acted within the scope of employment. The Act does not apply to constitutional torts (civil wrongs violating

a person's federal constitutional rights) or to acts violating a federal statute ( _e.g._ environmental torts).

**LEGAL REPRESENTATION**

Federal defense representation will typically be provided by the Department of Justice to a military commander, member,

or employee who is sued. For this representation to be provided it must be asserted and shown the defendant's actions

were within the scope of federal employment, the action was not a violation of a federal criminal statute, and it is in the

interests of the United States to provide representation. At this time, the payment of money judgments on behalf of a

non-successful federal defendant in the lawsuit is not necessarily guaranteed by the federal government. Consult your

SJA about the availability of defense representation through the state Attorney General's office for members serving in a

state military status.

**LAWSUITS FROM INSIDE THE GOVERNMENT**

The commander may be the subject of adverse action by the government itself, usually in environmental and fiscal cases.

While the major environmental statutes (Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act of

1976 (RCRA)) either contain immunity provisions for federal employees acting in the scope of their employment or have

been held by courts to grant immunity, federal officials have been held criminally liable for violations of various environ-

mental statutes that contain criminal penalties ( _Aberdeen Proving Grounds_ cases, _United States v. Carr,_ 880 F.2d 1550 (2d.

Cir. 1989), cert. denied, 110 S.Ct. 869 (1990). Under current environmental laws, it is possible for the federal govern-

ment or for a state government to commence criminal or civil action against a military commander for violations for

which the commander is responsible and either knows of or should know of. Federal representation may not be provided

in such cases and the commander may not be indemnified. In these cases, the commander is subject to criminal penal-

ties, including incarceration and fines, as well as civil money judgments, for all of which the commander may be liable.

Another area of increasing concern to commanders is violations of the Anti-Deficiency Act (31 U.S.C. 1341, _et. seq._ ). The federal government has prosecuted commanders and others in the budgetary process for criminal violations of this act.

Any time a commander uses funds for a purpose other than that which they were appropriated for, or fails to immedi-

ately investigate suspected violations by subordinates, the commander is subject to such prosecution. In these cases, it is

doubtful government representation will be offered, and nearly certain there will be no indemnification.

If served with a summons and complaint from any court, the recipient should immediately contact a Judge Advocate for

initiation of appropriate notifications to the National Guard Bureau and requests for representation.

_**KWIK-NOTE: Commanders are NOT ALWAYS IMMUNE from lawsuits. Moreover, just because the government represents**_

_**you in a lawsuit does not automatically mean you will be indemnified for any judgment rendered against you.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Injuries to Civilian Employees

5-4

Criminal Liability of Commanders for Environmental Violations

12-2

Feres Doctrine

18-3

Indemnification Agreements

18-4

Lawsuits Against National Guard Personnel

18-6

_**Air National Guard Commander's Legal Deskbook**_

657

_**Chapter 18, Lawsuits and Liability**_

_**Section 18-11 Transportation of and Liability to Foreign Military Nationals and Their Dependents**_

_**Page 1**_

**Transportation of and Liability to Foreign Military Nationals**

**Updated by Colonel Marshall Wilde, March 2015**

**AUTHORITY** : NATO Status of Forces Agreement; 28 U.S.C. 1346(b), 2402, 2671, _et. seq.,_ Federal Tort Claims Act; AFI 51-501, _Tort Claims_ (15 Dec 05), Chapter 4. 

## INTRODUCTION

This topic discusses the legality of transporting foreign military aircrew members and their dependents from an aircraft

having landed at a United States military installation, to billeting or off-base quarters, and the liability of the United

States in the event of an accident during the transportation. Claims matters and other requirements involving foreign na-

tionals - be they aircrew members, members of a civilian component of a foreign military force, or dependents of either -

are determined by applicable treaties, law or regulations.

International treaties between the United States and a foreign country which govern the conduct of service members

from the signatory countries are known as Status of Forces Agreements (SOFAs). While all the SOFAs between the

United States and foreign countries govern the rights and liabilities of U.S. service members in foreign countries, _only the_ _NATO SOFA governs the rights and liabilities of NATO foreign nationals while they are in the United States._

Though the instance of transporting foreign nationals may be rare, events related to the ANG State Partnership Program

could give rise to incidents covered by this topic.

**TRANSPORTATION OF NATO FOREIGN NATIONALS**

Article IX, paragraphs 3 and 6 of the NATO SOFA, require the United States, on a priority basis, and subject to existing

agreements, to transport foreign aircrews of NATO countries to billeting or off-base quarters, or other appropriate hous-

ing at CONUS bases. While the SOFA is silent on the subject of transportation of foreign dependents, the inherent

authority and responsibility of the base commander to facilitate the movement of incoming and outgoing personnel on

base--especially those dependents accompanying foreign aircrews--and to provide for maximum base security, seem to

dictate the exercise of that authority to transport BOTH the foreign aircrews and their dependents.

**TRANSPORTATION OF NON-NATO FOREIGN NATIONALS**

Since only the NATO SOFA governs the rights and liabilities of foreign nationals from NATO countries while in the U.S.,

the rights and liabilities of non-NATO foreign nationals - aircrew members, members of a civilian component of a for-

eign military force, or dependents of either - are NOT governed by treaty, but by United States law and regulations. In

general, the same rationale supporting the transporting of dependents of NATO foreign aircrews applies to transporting

non-NATO foreign aircrews, civilians, and their dependents. Therefore, the inherent authority and responsibility of the

base commander seem to dictate the transportation of non-NATO foreign aircrews and their dependents.

**LIABILITY TO NATO FOREIGN NATIONALS – AIRCREW**

Article VIII, paragraph 4, of the NATO SOFA states each country a party to the SOFA waives all claims against the other

for injury or death suffered by a member of its armed services while the member was performing official duties. Thus,

the U.S. would have no liability for claims of NATO governments for injury or death to a NATO aircrew member.

**NON-AIRCREW MEMBERS – CIVILIANS AND DEPENDENTS**

Under Article VIII, paragraph 5, of the NATO SOFA, the United States does have liability for injury or death to third par-

ties ( _e.g._ , civilians and dependents) arising out of acts or omissions of members of a force in the performance of official

_**Air National Guard Commander's Legal Deskbook**_

658

_**Chapter 18, Lawsuits and Liability**_

_**Section 18-11 Transportation of and Liability to Foreign Military Nationals and Their Dependents**_

_**Page 2**_

duty or caused by other acts for which the force is legally responsible. Therefore, injuries or the death of a civilian, or dependent of either a foreign aircrew member or civilian should be processed under applicable claims procedures.

**LIABILITY TO NON-NATO FOREIGN NATIONALS**

Since non-NATO foreign nationals are subject only to U.S. law and regulations, they are treated as civilians for liability

and claims purposes if they suffer injury or death arising out of acts or omissions by a member of the U.S. military. Thus,

the United States is liable to all foreign nationals from non-NATO SOFA signatory countries if an accident. Claims aris-

ing from such accidents should be processed under applicable claims procedures.

**SUMMARY**

Regardless of the legal basis - treaty, statute, regulation, or inherent authority and responsibility - all foreign nationals must be transported from the aircraft to the appropriate housing area, and the United States is liable for injury or death

to all foreign nationals except those from NATO SOFA signatory countries who are military members of that country's

military force.

If an accident results in injury or death to a foreign national while being transported on, to, or from an Air National

Guard installation by Air National Guard members, commanders should immediately consult with their Staff Judge Advo-

cates, who should in turn report the accident to the nearest active-duty Air Force legal office. Further guidance in investigating the accident will be given by that office.

_**KWIK-NOTE: Commanders may wish to brief this topic to unit personnel who may transport foreign nationals to and from**_

_**the aircraft to billeting or housing facilities.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Aerial Events, Flyovers and Static Displays

13-2

Asylum and Refuge Requests -Aircraft Outside The United States

15-2

Civil Affairs

15-6

Foreign Criminal Jurisdiction

15-8

Foreign Search, Inspections and Customs Duties Of U.S. Aircraft

15-9

Host Nation Support - Peacetime and Wartime (NATO)

15-10

Interrelationship Of U.S. Civil And Military Agencies - The U.S. Country Team

15-11

Passports and Visas

15-12

Returning To The United States - Customs

15-13

Status Of Forces Agreement (SOFA)

15-14

War and Deployment Planning - The Judge Advocate's Role

15-17

Claims

18-2

Lawsuits Against National Guard Personnel

18-6

Motor Vehicle Accident Reporting

21-5

_**Air National Guard Commander's Legal Deskbook**_

659

**Chapter 19, Medical Matters**

**Table of Contents**

**Section**

19 – 1 Table of Contents

19 - 2 HIV

19 - 3 Ambulance Response Off-Base

19 - 4 Blood Drives

19 - 5 CPR Training and Potential Liability

19 - 6 Healthcare Practitioners - Privileges

19 - 7 Hospital Assistance Agreements

19 - 8 Medical and Dental Care During Inactive Duty Training

19 - 9 Medical and Dental Care From Civilian Sources

19 - 10 Medical and Dental Care to Persons Authorized

19 - 11 Disability Evaluation System

19 - 12 Medical Evaluation (Profile Change)

19 - 13 Mental Health Evaluations

19 - 14 National Marrow Donor Program

19 - 15 Anthrax

19 - 16 Suicide Prevention

19 - 17 Air Force Medical Service's Preventive Medicine Initiative

_**Air National Guard Commander's Legal Deskbook**_

660

_**Chapter 19, Medical Matters**_

_**Section 19-2 HIV**_

_**Page 1**_

**HIV**

**Updated by Lieutenant Colonel David Gorman, October 2013**

**AUTHORITY:** AFI 48-135, _Human Immunodeficiency Virus Program_ (12 May 04), as amended by Change 1 (7 Aug 06); DoD

Directive 6485.02E, _Human Immunodeficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) Prevention: Support to_ _Foreign Militaries_ (7 Nov 06). 

## INTRODUCTION

**** The above authorities contain the basic guidance on the subject of HIV, and all wing or group commanders should have ready access to them on their base. While this topic has been written in a briefing format, because the main text is more

detailed and broader in scope of coverage than may be necessary for a briefing to unit personnel, a sample briefing in a

synopsized version is at Attachment 1 to this topic.

**POLICY**

In 1986, the Air Force began "Total Force Testing" of the blood of service members for the presence of HIV. It is DoD pol-

icy to deny eligibility for appointment or enlistment for military service to individuals who are HIV-positive, to screen

active duty and reserve component personnel periodically for HIV, to refer active duty HIV-positive personnel for a medi-

cal evaluation of fitness for continued service in the same manner as personnel with other progressive illnesses, and to

deny eligibility for extended active duty to reserve component HIV-positive members.

**ACCESSION**

The rationale for this policy is: the condition existed prior to appointment or enlistment; the Air National Guard avoids

potential future medical costs; the possibility that individuals will not complete their service commitment; clinical evi-

dence indicates that individuals with serologic evidence of HIV infection may suffer adverse and potentially life-

threatening reactions to some live virus immunizations administered at basic training; an individual with serologic evi-

dence of HIV infection cannot participate in battlefield blood donor activities or other blood donation programs; and pres-

ently, there is no way to differentiate between individuals with serologic evidence of HIV infection who will progress to

clinical disease and those individuals who will remain healthy.

Applicants for reserve component (including the Air National Guard) accession are screened for serologic evidence of

HIV infection during normal entry physical examinations or in the pre-appointment programs established for officers.

Those individuals with serologic evidence of HIV infection, who are required to meet accession medical fitness standards

in order to enlist or be appointed, are not eligible for military service with the reserve components.

**DISEASE SURVEILLANCE AND HEALTH EDUCATION**

Controlling the transmission of HIV and safeguarding the health of those already infected through early identification are

both dependent on effective disease surveillance and health education programs. Health education with resultant behav-

ioral modification is presently the only effective way to control the spread of the HIV. Therefore, commanders are well-

advised to consider including HIV preventive education as part of their unit's ancillary training program.

Reserve component military personnel are screened for serological evidence of HIV infection during their periodic physi-

cal not to exceed every five years. Deploying members must have had an HIV test within 2 years of deploying to a theater

where this testing is required. Reserve component members not on extended active duty are ineligible for medical evalua-

tion in military medical treatment facilities (MTFs). These individuals must be counseled regarding the significance of a

positive HIV antibody test and referred to their private physicians for medical care and counseling.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 19, Medical Matters**_

_**Section 19-2 HIV**_

_**Page 2**_

ARC members on extended active duty are referred to Wilford Hall Medical Center for medical evaluation and a medical

evaluation board to determine fitness for duty. The medical assessment of each exposure to and/or case of HIV infection

seen at a MTF shall include an epidemiological assessment (EA) of the potential transmission of HIV to other persons at

risk of infection, including sexual and other intimate contacts, and the family of the patient. This information is vital to provide appropriate preventive medicine counseling and to the continued development of scientific knowledge regarding

the natural history and transmission patterns of HIV. The occurrence of HIV infection, or serologic evidence of HIV infec-

tion, shall not be used as a basis for any disciplinary action against an individual AGR or EAD ANG member; however,

that member will be ordered by the immediate commander to follow preventative medicine requirements. It will be

made clear to the AGR or EAD ANG member that ignoring counseling, and knowingly risking the transmission of HIV

to others later, may result in administrative and/or disciplinary action. Attachment 2 to this topic has detailed proce-

dures for this counseling which apply only to Air National Guard members who are either on EAD or are AGRs.

Spouses of HIV positive reserve component members must be notified of their potential exposure either by Air Force

healthcare providers or by local civilian public healthcare authorities. All spouses who are so notified may receive sero-

logic testing and counseling voluntarily from military treatment facilities. The names of individuals identified to be at

risk, including spouses of HIV positive reserve component members who are not eligible for military healthcare, will be

provided to civilian health authorities in the local area where the case is identified, unless prohibited by state law.

**RETENTION**

Reserve component members with serologic evidence of HIV infection are ineligible for extended active duty (duty for a

period of more than 30 days) except under conditions of mobilization. Reserve component members, who are not on ex-

tended active duty or who are not on extended full-time National Guard duty (non-AGRs), and who show serologic evi-

dence of HIV infection, shall be transferred involuntarily to the Standby Reserve only if they cannot be utilized in the Se-

lected Reserve in a non-mobility position. The commander of the member's unit of assignment must determine on a

case-by-case basis whether the member can be utilized in the Selected Reserve.

Retained members must be medically evaluated semiannually and are ineligible for deployment to overseas locations, ex-

cept for Alaska, Hawaii and Puerto Rico. Those whose home unit is in an overseas location may not deploy to another

location except the CONUS.

**SEPARATION**

**Positive HIV**

Traditional and technician Guard members who test positive for the HIV will be separated based solely upon the test re-

sults pursuant to AFI 36-3209 for ineligibility for worldwide deployment, paragraph 3.12.15, unless the state identifies a

non-mobility, non-deployable position in which the member can be retained.

**Positive HIV Plus Evidence of Clinical Illness**

AGR and EAD Guard members who test positive for the HIV will not be separated solely on the basis of the test results.

However, a Medical Evaluation Board (MEB) is conducted on all HIV positive AGR and EAD Guard members, as is a

Physical Evaluation Board (PEB) (when appropriate) to determine if those HIV positive personnel are medically fit for

duty. If there develops clinical illness or other indication of immunologic or neurologic impairment related to the HIV

infection, the member may then be discharged if the MEB determines the member is medically unfit for duty. ANG mem-

bers infected with HIV and, in the case of AGR and EAD members, who are determined to be unfit for further duty by

medical authorities, are subject to the following separation policy:

1. Military personnel including traditional and technician Guard members may either retire, if eligible, or be separated. If separated, the characterization of service shall never be less than that warranted by the member's service record;

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 19, Medical Matters**_

_**Section 19-2 HIV**_

_**Page 3**_

2. Military personnel with serologic evidence of HIV infection found not to have complied with lawfully ordered preven-

tive medicine procedures for individual patients (AGRs and EAD members only) are subject to appropriate administra-

tive and disciplinary action which may include separation.

**LIMITATIONS ON THE USE OF INFORMATION**

**Epidemiological Assessment Information**

Pursuant to the Defense Authorization Act of 1987, Section 705 (effective 18 October 1986), information obtained from

an AGR or EAD member during or as a result of an epidemiological assessment (EA) interview, and who has been identi-

fied as having been exposed to the virus associated with AIDS, may NOT be used to support any adverse personnel ac-

tion against that member. (Remember, the EA occurs after the member tests positive, and since traditional and techni-

cian Guard members do not have EAs - they are normally separated upon a positive test - this guidance does not apply to

them.)

Adverse personnel actions include:

1. Court-martial;

2. Nonjudicial punishment;

3. Involuntary separation for other than medical reasons;

4. Administrative or punitive reduction in grade;

5. Denial of promotion;

6. Unfavorable entry in a personnel record;

7. Denial of reenlistment;

8. Line of Duty determination; and

9. Any other action considered by the Secretary of the Air Force to be an adverse personnel action.

**Laboratory Test Results**

Laboratory test results confirming the serologic evidence of HIV infection may not be used as the sole basis of separation

of the AGR or EAD ANG member and the tests results may not be used as an independent basis for any disciplinary or

adverse administrative action against such member.

**Privacy Act**

Air Force and ANG policy strictly safeguards results of positive HIV testing. There is no release to persons outside the

Air Force or ANG without the member's consent. The Air Force and ANG will neither confirm nor deny testing results of

specific service members. This "no release" policy has some limited exceptions listed below.

**PERMISSIBLE USES AND DISCLOSURE OF INFORMATION**

**Epidemiological Assessment Information**

EA information must be provided to the member's immediate commander for proper consideration of those personnel

actions deemed to be non-adverse. EA information may be used for the following non-adverse personnel actions:

1. Disqualification (temporary or permanent) or withdrawal from Personnel Reliability Program (PRP);

2. Denial, suspension, or revocation of security clearance;

3. Reassignment;

4. Suspension or termination of access to classified information;

_**Air National Guard Commander's Legal Deskbook**_

663

_**Chapter 19, Medical Matters**_

_**Section 19-2 HIV**_

_**Page 4**_

5. Removal (temporary or permanent) from flight status or other duties requiring a high degree of stability or alertness;

6. Transfer between Reserve components; and

7. Removal (temporary or permanent) of AFSC. ****

These non-adverse actions cannot be accomplished by unfavorable entries in the member's records. Recording informa-

tion that the member is HIV positive or appropriate words to that effect is not an unfavorable entry and is permitted; but

the information should not be placed in records that are easily accessed ( _i.e._ , unit records). The fact that the member is HIV positive will be coded in the member's medical records.

EA information may also be used for or disclosed to:

1. Rebuttal in court or at a board proceeding when the member first introduces evidence of drug abuse or relevant sexual

activity, or lack thereof;

2. The member's unit commander and other DoD healthcare beneficiaries;

3. Various communicable disease reporting facilities in accordance with local law, but these agencies must get approval

from the ASECDEF for Health Affairs before release is required; and

4. Any disciplinary or other action based on independently derived evidence.

**Laboratory Test Results**

Results obtained from laboratory tests for HIV may be used for other purposes including:

1. In a separation for physical disability;

2. In a separation under the accession testing program;

3. In a voluntary separation for the convenience of the government;

4. In any other administrative separation action authorized by DoD policy; and

5. In any other manner consistent with law or regulation (e.g., the Military Rules of Evidence), including:

a. To establish the HIV positive status of a member who disregards the preventive medicine counseling

or disobeys the preventive medicine order, or both (Attachments 1 and 2 to this topic), in an administrative or discipli-

nary action based on such disregard or disobedience;

b. To establish the HIV positive status of a member as an element of any other permissible administrative or disci-

plinary action ( _e.g._ , as an element of proof of an offense charged under your state Code of Military Justice, or applicable regulation); and

c. To establish the HIV positive status of a member as a proper ancillary matter in an administrative or discipli-

nary action ( _e.g._ , as a matter in aggravation in a court-martial in which the HIV positive member is convicted of an act of rape committed after the member is informed of being HIV positive).

**Privacy Act**

There are limited exceptions to the rule that the medical or personnel records of an HIV positive member cannot be dis-

closed. They are:

1. Very limited release within the Air Force and ANG on a need-to-know basis only, i.e., the unit commander should

NOT inform First Sergeants and/or Supervisors unless a determination is made those individuals truly need to know

(the unit commander should first consult with the director of base medical services or medical group commander and

their staff judge advocate);

2. Disclosure is required under the Freedom of Information Act (FOIA), 5 U.S.C. 552. Note that Section 552(6) exempts

from disclosure under FOIA personnel and medical files that would constitute an unwarranted invasion of privacy;

3. Compelling circumstances that affect the health or safety of an individual;

****

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 19, Medical Matters**_

_**Section 19-2 HIV**_

_**Page 5**_

4. Routine use (the Air Force has established reporting to state and local health agencies as a routine use);

5. For civil or criminal law enforcement purposes where a violation of law is indicated; and

6. To a Congressional Committee for a purpose within its area of responsibility. ****

**Health Insurance Portability and Accountability Act of 1996 (HIPAA) Pub. L. No. 104-191 (1996). __**

HIPAA is a law that prevents covered entities from disclosing individually identifiable health information. The medical

records held by an ANG medical group are covered by HIPAA and thus, the medical group is prohibited from releasing

information except in certain specific circumstances. The exception that allows the ANG medical group to release indi-

vidually identifiable health information to a commander about one of his airmen is that the information is for an essen-

tial government function. However, the medical group must be mindful of HIPAA and only release individually identifi-

able health information when there is a clear exception to HIPAA. MDG/CCs should contact their staff judge advocate if

they have questions concerning release of individually identifiable health information.

**ORDER TO FOLLOW PREVENTIVE MEDICINE REQUIREMENTS**

The order to follow preventive medicine requirements is issued to all HIV positive AGR and EAD Guard members who

remain on active duty.

This order ( _Attachment 2_ to this topic) sometimes has misleadingly been called the Safe-Sex Order. This order is much broader in that it not only covers safe sex, but it also requires disclosure of being HIV positive to healthcare providers in emergency and normal treatment situations, and prohibits the donating of bodily fluids and organs.

These orders have consistently been held to be enforceable by the military courts, including the U.S. Court of Appeals for

the Armed Forces. The parts of the order most frequently violated are the parts that require HIV-infected members to tell

their prospective sexual partners, whether military or civilian, of their condition before having intercourse and to take

precautions when engaging in sexual activity, whether the intercourse or other sexual activity is heterosexual or homosex-

ual. Remember, the safe-sex part of the order has two requirements: to WARN and to TAKE PRECAUTIONS. Violations

of either requirement have led to court-martial convictions of military members for aggravated assault, conduct prejudi-

cial to the good order and discipline of the Armed Forces under Article 134, UCMJ ( _U.S. v. Woods_ , 28 MJ 318 (1989), disobeying a superior commissioned officer under Article 90, UCMJ ( _U.S. v. Womack_ , 29 MJ 88 (CMA 1989), and failure to

obey a lawful order under Article 92, UCMJ. The rationale in part is that these orders constitute a lawful exercise of a

commander's authority. The references to the UCMJ are for information purposes only; state Codes of Military Justice

should be consulted in similar instances.

Here is what happens regarding the initiating, processing, and retaining of the order:

1. The member is notified by the healthcare provider of the positive test;

2. The MDG/CC notifies the member's unit commander;

3. The unit commander issues the order to follow preventive medicine requirements;

4. The order should be signed and dated by the commander and the member;

5. The unit commander is responsible for storing and safeguarding the order to protect the privacy and confidentiality of

the member. The order may be filed in the unit PIF or classified safe, and must be placed in a sealed envelope marked

"FOR THE EYES OF THE COMMANDER ONLY," with the unit commander's signature across the envelope seal; and

6. Upon reassignment, the unit commander forwards the order in a sealed envelope to the gaining commander marked

"TO BE OPENED BY ADDRESSEE ONLY."

**HIV -- AIR FORCE AND AIR NATIONAL GUARD CIVILIAN EMPLOYEES __**

Civilian employees are tested for serological evidence of HIV to comply with host nation requirements for screening of

DoD employees.

_**Air National Guard Commander's Legal Deskbook**_

665

_**Chapter 19, Medical Matters**_

_**Section 19-2 HIV**_

_**Page 6**_

HIV positive status is a handicap under federal civil rights laws such as the Rehabilitation Act of 1973, 29 U.S.C. 701, _et_ _seq_. and the Civil Rights Restoration Act of 1988, Pub.L.No. 100-259 (1988), which prohibits discrimination on the basis of physical or mental handicap.

Court decisions concerning other kinds of handicaps are instructive on how HIV handicap issues will be handled.

In _School Board of Nassau County v. Arline_ , 107 S. Ct. 1123 (1987), the Supreme Court determined that a person with a con-tagious disease (tuberculosis) was handicapped within the meaning of the statute. The Court held that fear of a conta-

gion did not justify discriminatory treatment.

The statute also protects an otherwise qualified employee from discrimination because of a physical or mental handicap.

In the _Arline_ case above, the Court set forth an individualized inquiry to determine whether persons are otherwise qualified, _i.e._ , whether they can perform the essential functions of the position. The inquiry must be based on factual findings from reasonable medical judgments about the:

1. Nature of the risk (how the disease is transmitted);

2. Duration of the risk (how long is the carrier infectious);

3. Severity of the risk (the potential harm to third parties); and

4. Probabilities the disease will be transmitted and will cause varying degrees of harm.

The trial court must decide in light of these findings whether the employee can perform the essential functions of the

job, and if not, whether any reasonable accommodation can be made. The Court said that a person who poses a signifi-

cant risk of communicating an infectious disease to others in the workplace would not be an "otherwise qualified em-

ployee."

In _Chalk v. U.S. District Court_ , 840 F.2d 701 (1988), the U.S. Court of Appeals for the 9th Circuit ruled that teachers could not be reassigned from their teaching duties simply because they had AIDS.

In March 1988, the U.S. Office of Personnel Management issued guidelines for federal agencies on handling AIDS in the

federal workplace (FPM Bulletin 792-42):

1. Extensive HIV Information and Education Program;

2. HIV Positive employees may continue to work provided they are able to do so. Specifically:

a. They may not be denied employment or fired because they have AIDS or are seropositive; and

b. Their privacy and confidentiality must be protected;

3. Employees should be granted sick or annual leave or leave without pay the same as other employees with medical con-

ditions. This is the accommodation of the handicap, and is the same concept as job restructuring or reassignment;

4. Employees are eligible to receive disability retirement if the medical condition warrants and they have the required

number of years; and

5. On issues of co-employee refusal to work with infected employees, there must be information and counsel

ing, and if they still refuse to work with infected employees, they may be disciplined. ****

The United States Supreme Court also ruled in the landmark case, _Bragdon v. Abbott_ , (1998), 524 U.S. 624, that reproduction is a major life activity and disclosing asymptomatic AIDS is covered by the Americans with Disabilities Act of 1990

(ADA), 42 U.S.C. 12111 _et seq_. Ms. Abbott prevailed on the argument that HIV created a "substantial limitation" to life activities, specifically, reproductive ability. Therefore, military employers must be mindful of the ADA, particularly in relation to civilian employees. There may also be state anti-discrimination laws that apply in these situations.

_**Air National Guard Commander's Legal Deskbook**_

666

_**Chapter 19, Medical Matters**_

_**Section 19-2 HIV**_

_**Page 7**_

**HIV Screening of DoD Civilians in Foreign Countries**

DoD civilian employees who refuse to cooperate with the screening requirements are treated, as follows: Those who vol-

unteered for the assignment, whether permanent or temporary, are retained in their official position without further ac-

tion and without prejudice to employee benefits, career progression opportunities, or other personnel actions to which

those employees are entitled under applicable law or instruction.

Those who are obligated to accept assignment to the host nation under the terms of an employment agreement, regularly

scheduled tour of duty, or similar and/or prior obligation may be subjected to an appropriate adverse personnel action

under the specific terms of the employment agreement or other authorities that may apply.

Host nation screening requirements, which apply to DoD civilian employees currently located in that country, must be

observed. Appropriate personnel actions may be taken, without prejudice to employee rights and privileges to comply

with the requirements.

Individuals not employed in the host nation, who accept the screening and who are evaluated as HIV seropositive, shall

be denied the assignment on the basis that evidence of seronegativity is required by the host nation. If denied the assign-

ment, such DoD employees shall be retained in their current positions without prejudice. Appropriate personnel actions

may be taken, without prejudice to employee rights and privileges, on DoD civilian employees located in the host nation.

In all cases, employees shall be given proper counseling and shall retain all the rights and benefits to which they are entitled, including accommodations for the handicapped as in the applicable ASD/FM&P Memorandum, and for employees

in the United States (29 U.S.C. 794). Non-DoD employees are referred to appropriate support service organizations.

**HIV TESTING OF U.S. MILITARY PERSONNEL VISITING FOREIGN COUNTRIE** S

Public health concerns of host nations have resulted in occasional requests that visiting military units demonstrate unit

personnel are free of the HIV.

By message from the Secretary of Defense, retransmitted by ANGSC/SG by message dated 172100Z December 1987,

guidance was provided for responding to expressions of concern, official action, or other efforts by host nations to condi-

tion U.S. military visits on HIV testing. In response to questions concerning communicable diseases on visiting U.S. mili-

tary aircraft, a host government can be informed that:

1. Commanding officers of a U.S. military aircraft are required to report at once to local health authorities any condition

aboard their aircraft which presents a hazard of introduction of a communicable disease outside the aircraft. Command-

ing officers, if requested, will certify there are no indications that military personnel entering the host nation from their aircraft will present such a hazard; and

2. Concealment of any circumstances which might subject a U.S. military aircraft to quarantine is strictly prohibited un-

der regulations.

If asked what the U.S. is doing to prevent the spread of HIV by U.S. service personnel, the following statement may be

given to the host country by commanders and Public Affairs Officers:

"U.S. Department of Defense policy requires all military personnel to be screened for serological evidence of human im-

munodeficiency virus (HIV) infection. Those with positive serological evidence of HIV infection are assigned within the

United States. In implementation of this policy, U.S. military personnel en route to permanent overseas duty are tested

prior to deployment."

The United States views its military aircraft as sovereign. Therefore, the U.S. will refuse requests to permit inspections

of its aircraft, to provide specific information on individual crew members, and to undertake other requested actions

_**Air National Guard Commander's Legal Deskbook**_

667

_**Chapter 19, Medical Matters**_

_**Section 19-2 HIV**_

_**Page 8**_

because the certification of the commanding officer is definitive. For security and other reasons, the U.S. does not release detailed lists of personnel embarked on U.S. military aircraft visiting foreign nations.

In using this guidance and addressing host nation queries, consular posts should be sensitive to and resist measures

which discriminate against U.S military personnel or units. Examples include:

1. Requiring more information about U.S. military personnel than visiting military personnel from other countries; and

2. Treating U.S. military personnel as a higher risk group than commercial aircrews.

Media queries concerning DoD policy on HIV testing and subsequent government to government discussions beyond the

above statements should be referred to the U.S. State Department or the appropriate U.S. Embassy pursuant to Secretary

of Defense message retransmitted by Chief, NGB dated 061955Z November 1987.

_COMMANDERS ARE ADVISED TO HAVE ALL AIRCRAFT COMMANDERS POSSESS ON ALL OCONUS FLIGHTS THE_

_ABOVE PERMITTED STATEMENTS PREPRINTED IN SUFFICIENT SUPPLY IF A HOST NATION QUERIES CONCERNING_

_THESE MATTERS._

**CONCLUSION**

This topic has tried to list the highlights of the many areas in which HIV affects the military. It is not a substitute for the ever-changing guidance in this area. Questions concerning the accession, retention, separation, limitations on use of information, or other matters concerning HIV infected Air National Guard personnel, should be directed to your staff

judge advocate.

_**KWIK-NOTE: The segments of this topic have been written in a briefing format. Use them as you see fit in your Ancillary**_

_**Training and Preventive Law Programs.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Assignments

1-5

Barring Reenlistment

24-6

Blood Drives

19-4

Classified Material

14-2

Courts-Martial

8-15

Drug Abuse

10-4

Enforceability of Orders by Air Force Officers to ANG Personnel Not In Federal Service

11-5

Enlistment and Reenlistment

1-13

Foreign Search, Inspections and Customs Duties Of U.S. Aircraft

15-9

Homosexuality

1-18

Interrelationship of U.S. Civil and Military Agencies - The U.S. Country Team

15-11

Judicial Review Of Military Administrative Actions

18-5

Medical and Dental Care From Civilian Sources

19-9

Medical and Dental Care to Persons Authorized

19-10

Medical Evaluation (Profile Change)

19-11

Medical Evaluation Boards

19-12

Personnel Security Access Program

1-28

Preventive Law Program

17-15

Quality Force Management

24-12

Actions Relationship with Other Military Components

11-6

_**Air National Guard Commander's Legal Deskbook**_

668

_**Chapter 19, Medical Matters**_

_**Section 19-2 HIV**_

_**Page 9**_

_Attachment 1_

_Page 1 of 3_

**PREVENTIVE MEDICINE COUNSELING RECORD**

**PURPOSE:** To record the preventive medicine counseling provided each Human Immunodeficiency Virus antibody

positive military healthcare beneficiary.

**INSTRUCTIONS:** The counselor will obtain and record the administrative information required in Part I from official

military records or from the patient's identification card. If the patient is not active duty military, the sponsor's information will also be included. Each item in Part II will be individually explained to the patient by the counselor. Certifying

signatures of the counselor and patient will be affixed as indicated in Part II. The patient will receive one copy, and the

other copy will be filed in the patient's inpatient medical record.

____________________________________________________________________________________________________________

## PART I - PATIENT IDENTIFICATION

### NAME OF PATIENT______________________________________________________________

NAME OF SPONSOR_____________________________________________________________

GRADE _____________________

SSAN ______________________________

UNIT___________________________________________________________________________

LOCATION______________________________________________________________________

DATE OF DIAGNOSIS ____________________________________________________________

TIME AND DATE OF COUNSELING________________________________________________

LOCATION OF COUNSELING______________________________________________________

_________________________________________________________________________________

COUNSELOR: NAME______________________________________________________________

GRADE AND COMPONENT _________________________________________

TITLE ____________________________________________________________

UNIT _____________________________________________________________

_**Air National Guard Commander's Legal Deskbook**_

669

_**Chapter 19, Medical Matters**_

_**Section 19-2 HIV**_

_**Page 10**_

**PART II - PREVENTIVE MEDICINE COUNSELING RECORD AF IMT 3845**

I have been informed of my confirmed positive laboratory result for the Human Immunodeficiency Virus (HIV) antibody.

I understand that I have a responsibility to prevent transmission of the infection to others with whom I may have con-

tact. Specifically:

1. My positive HIV antibody test with Western Blot confirmation means that I have been infected with HIV. Current

medical knowledge indicates that once a person has been infected, it is assumed that he or she continues to harbor the

virus. This means that I am infectious, or capable of transmitting the virus through any behaviors potentially involving

the sharing of body fluids;

2. It has been explained to me that HIV infection is primarily transmitted through three routes: intimate sexual expo-

sure; perinatal exposure (from infected mothers to their infants); and parenteral exposures (transfusion of contaminated

blood or blood products, or sharing of needles by intravenous drug abusers). Since the virus has been isolated from vari-

ous body fluids, to include blood, semen, saliva, tears, and breast milk, personal items such as toothbrushes, razors and

other personal implements which could become contaminated with blood or other fluids should not be shared with oth-

ers, even though the risk appears low. I have been informed that casual contact such as hugging, shaking hands or other

common non-sexual personal contacts pose a negligible risk of transmission;

3. I have been informed that the percentage of those infected with HIV, which will progress to clinical illness or suffer

impaired immunity, is unknown. If I am now asymptomatic, and later develop unexplained fever, weight loss or infec-

tions, I must seek immediate medical attention;

4. Although I may have no symptoms presently, I may still transmit this infection to others through sexual intercourse,

sharing of needles, donated blood products, and possibly through exposure of others to saliva through oral-genital con-

tact or intimate kissing. I have been informed that transmission of HIV infection through sexual intercourse can be

avoided only through abstinence. If I cannot abstain, then I must engage only in protected sexual relations, i.e., using a

condom. Males must always use a condom, and females must insist that their partners use condoms. While the ability of

condoms to prevent transmission of infection is unproven, they may reduce the chance of transmission, and I must al-

ways use them or insist on their use during all intimate sexual encounters;

5. I have been informed that I, as an HIV infected person, have the responsibility to always verbally inform my sexual

partners of my infection prior to engaging in any intimate sexual behavior;

6. I realize that I may have infected others before I knew I was infected. For that reason, I am obligated to reveal the identity of all persons with whom I have had sexual relations or shared needles, so that they too can receive testing and coun-

seling to break the chain of transmission. In addition to revealing their identities, I will personally inform all my contacts of the likelihood of their exposure to HIV as soon as possible, and recommend they seek testing and counseling;

7. I, as an HIV infected person, will not donate blood, sperm, tissues or organs; and

8. Whenever I seek medical or dental care from any source, I must inform the healthcare provider of my HIV infection,

so that appropriate evaluation and precautions are taken to protect the provider and other patients. If the husband or

wife or both are HIV infected, pregnancy should be avoided because of the high possibility that a newborn infant of an

infected mother will also be infected. New mothers, who are HIV infected, should avoid or discontinue breast feeding to

prevent potential transmission to an uninfected infant.

I acknowledge that I, ___________________________________, have been counseled and understand that the preventive

medicine measures listed in paragraphs 1 through 8 above, which were explained to me, are necessary to preclude trans-

mission of HIV infection.

_**Air National Guard Commander's Legal Deskbook**_

670

_**Chapter 19, Medical Matters**_

_**Section 19-2 HIV**_

_**Page 11**_

______________________________________________________________

SIGNATURE OF PATIENT

_______________________________________________________________

DATE

_______________________________________________________________

SIGNATURE OF COUNSELOR

_______________________________________________________________

DATE

_**Air National Guard Commander's Legal Deskbook**_

671

_**Chapter 19, Medical Matters**_

_**Section 19-2 HIV**_

_**Page 12**_

_Attachment 2_

**ORDER TO FOLLOW PREVENTIVE MEDICINE REQUIREMENTS**

Because of the necessity to safeguard the overall health, welfare, safety, and reputation of this command, and to ensure

unit readiness and the ability of the unit to accomplish its mission, certain behavior and unsafe health procedures must

be proscribed for members who are diagnosed as positive for HIV infection.

As a military member who has been diagnosed as positive for HIV infection you are hereby ordered:

1. To verbally inform sexual partners that you are HIV positive prior to engaging in sexual relations. This order extends

to sexual relations with other military members, military dependents, civilian employees of DoD components or any

other persons;

2. To use proper methods to prevent the transfer of body fluids during sexual relations, including the use of condoms pro-

viding an adequate barrier for HIV (e.g. latex);

3. In the event you require emergency care, to inform personnel responding to your emergency that you are HIV positive

as soon as you are physically able to do so;

4. When you seek medical care you may wish to inform the provider that you are HIV positive so that the provider can

use that information to optimize your evaluation and treatment; and

5. Not to donate blood, sperm, tissues, or other organs.

Violating the terms of this order may result in adverse administrative action, punishment under the Uniform Code of

Military Justice, and/or _____________________ State Code of Military Justice for violation of a lawful order.

________________________________________________

Commander's Signature Block and Date

ACKNOWLEDGMENT

I have read and understand the terms of this order and acknowledge that I have a duty to obey this order. I understand

that I must inform sexual partners, including other military members, military dependents, civilian employees of DoD

components, or any other persons, that I am HIV positive prior to sexual relations; that I must use proper methods to

prevent the transfer of body fluids while engaging in sexual relations, including the use of condoms providing adequate

barrier to HIV; that if I need emergency care I will inform personnel responding to my emergency that I am HIV positive

as soon as I am physically able to do so; that when I seek medical or dental care that I may wish to inform the provider

that I have HIV in order to optimize my evaluation and treatment; and that I must not donate blood, sperm, tissues, or

other organs. I understand that violations of this order may result in adverse administrative actions, punishment under

the Uniform Code of Military Justice, and/or _________________ State Code of Military Justice for violation of a lawful

order.

_____________________________________________

Member's Signature Block and Date

_**Air National Guard Commander's Legal Deskbook**_

672

_**Chapter 19, Medical Matters**_

_**Section 19-3 Ambulance Response Off-Base**_

_**Page 1**_

**Ambulance Response Off-Base**

**Updated by Lieutenant Colonel David Gorman, October 2013**

**AUTHORITY:** AFI 41-210, _Tricare Operations and Patient Administration Functions_ (6 Jun 12); DoDD 6010.22, _National Disaster Medical System_ (21 Jan 03); and applicable state

**AUTHORITY TO RESPOND**

**** The use of ambulance equipment and personnel poses several complicated problems. To the best of our knowledge, there is no regulation that authorizes the execution of an agreement between the federal government and local municipalities

for either the mutual or unilateral commitment of ANG ambulance equipment and personnel. However, in accordance

with DoDD 6010.22, it is DoD policy for the Assistant Secretary of Defense for Health Affairs and the Under Secretary of

Defense for Personnel and Readiness to coordinate with the National Disaster Medical System (NDMS) and other federal

and state authorities to provide DoD resources in times of national disasters. One of the functions mentioned in DoDD

6010.22 is the provision of transportation of medical patients. _See_ para. 3.1.2. While there is no explicit authorization for entering into mutual aid agreements _per se_ , DoD recognizes there may be instances where DoD resources may transport

civilian patients in emergencies.

Similar to the rationale underlying the statutes and regulations authorizing Reciprocal Fire Protection Agreements, agree-

ments may be considered for off-base ambulance responses in emergency situations. Any such agreement must be of the

non-obligatory type, with mutual waivers of claims for negligence and losses for injuries or damages. Before thinking

about entering into such an agreement, however, commanders should consult with their staff judge advocate. In non-

emergency situations, it may not be sound policy to commit ANG assets for this purpose when, in the vast majority of

cases, civilian ambulances can respond. AFI 41-120 provides for treatment of civilians in Air Force medical treatment fa-

cilities if the treatment is necessary "to save a person's life or limb or to prevent undue suffering." This provision of the regulation may allow for dispatch of Air Force and ANG ambulances to civilian emergencies. However, providing medical

treatment to civilians should be the exception, not the norm.

As has been discussed in other topics in this _Deskbook_ , unauthorized off-base ambulance response could be deemed not within the member's scope of employment. The members involved, including all commanders in the member's chain of

command, could be subject to personal liability for malpractice or negligence, including motor vehicle accidents, to and

from the off-base site of the response.

**EMERGENCIES**

Any consideration of off-base ANG ambulance responses should usually, if not always, be limited to emergency situa-

tions, as there is a danger of personal liability of military members for their negligence (either in treatment or traveling) toward civilians. However, nothing in this topic is meant to suggest that in off-base disasters involving military personnel or equipment, ANG ambulances should not respond to the scene. In such situations, it is part of their duty to do so;

for example, in instances of state mobilization. Thus, such off-base responses are within the scope of employment. Upon

arrival at the off-base site, medical assistance rendered even to civilians in emergencies or life-threatening situations, or transportation of civilians to civilian hospitals when no civilian ambulances are available, will likely be found to have

been within the scope of employment.

**LIABILITY AND PROTECTION**

The theme of this topic is that once ANG ambulances leave the base, they may lose their protection under the Federal

Tort Claims Act (FTCA) from liability for negligence and the members concerned may become personally liable. FTCA

protection is lost when the conduct performed is not within the scope of the military member's employment or duties.

_**Air National Guard Commander's Legal Deskbook**_

673

_**Chapter 19, Medical Matters**_

_**Section 19-3 Ambulance Response Off-Base**_

_**Page 2**_

If there is a valid and justified reason for the ANG ambulance to leave the base to respond to render assistance - usually

only in an emergency or disaster, or in a disaster preparedness exercise – then, although the response was not specifically

authorized, a stronger case may be made for the response being within the scope of employment should an FTCA liabil-

ity question later arise. Therefore, the medical facility commander who makes the decision in each case must be reasona-

bly certain of the following before dispatching Air Force or ANG ambulances:

1. The accident or emergency poses serious threat to life, limb, or sight or is causing undue suffering; and

2. This threat cannot be dealt with except by the dispatch of an Air Force or ANG ambulance.

Before the medical facility dispatches its ambulances to off-base accidents, two issues concerning liability must be re-

solved. First, many states have enacted statutory requirements concerning medical equipment installed in ambulances. If

your state has enacted such laws, it must be determined if the ambulances at your base comply with the state's

statutorily-imposed standards. Second, under the general principles of tort law, individuals who come to the rescue of

people in peril or trouble can be held personally liable for their acts of negligence unless there are state statutes referred as "Good Samaritan laws," to protect them. Absent "Good Samaritan laws," individual ambulance personnel could be held liable for their negligence in emergency response situations. Members in Title 32 or Title 10 status acting within the

scope of their employment would have personal immunity from suit under the Federal Tort Claims Act.

_**KWIK-NOTE: The staff judge advocate should also be consulted to determine if there are any statutes or regulations in your**_

_**state which permit, authorize, or protect your medical personnel for off-base ambulance responses.**_

**RELATED TOPICS:**

**SECTION**

Aid To Civilian Authorities

6-2

Aircraft Accidents and Safety Investigations Off-Base

16-2

Feres Doctrine

18-3

Indemnification Agreements

18-4

Lawsuits against National Guard Personnel

18-6

Liability of National Guard Medical Personnel

18-8

National Defense Area

25-15

Personal Liability of Federal and State Officials

18-9

Posse Comitatus

6-7

Reciprocal Fire Protection

25-18

Relief from Civil Liability

18-10

_**Air National Guard Commander's Legal Deskbook**_

674

_**Chapter 19, Medical Matters**_

_**Section 19-4 Blood Drives**_

_**Page 1**_

**Blood Drives**

**Updated by Lieutenant Colonel David Gorman, October 2013**

**AUTHORITY:** Applicable state law and regulations.

**BASIS OF ANG INVOLVEMENT**

**** It has been the custom of the Air National Guard to support blood drives sponsored by bona fide health organizations such as the Red Cross and local blood banks. Generally, members may donate blood while in a duty status.

**GUIDELINES**

Commanders or the government should face no undue legal exposure as long as the following guidelines are followed:

1. Members may not be coerced or ordered to give blood. They are only being provided an opportunity to volunteer;

2. Only bona fide and recognized agencies are allowed to solicit donations;

3. All procedures, including screening of donors, are handled by employees or volunteers of the outside agency and not

by military personnel; and

4. If a commander knows that an unsuitable individual wishes to volunteer (for example, a member with an infectious

condition), the commander should direct the member not to donate blood. Communication of this fact between the com-

mander and third parties outside the government (for example, the Red Cross or local blood bank) may be deemed a

breach of the member's privacy.

Some units periodically throughout the year invite the local Red Cross onto their base to conduct blood drives. The unit

advertises it within the unit, and the Red Cross advertises it to the local civilian community. The Red Cross supplies all

the equipment and personnel. Military members and civilians donate blood, on a certain date which is usually during the

week, as many commanders need monthly drill time for required training. While state law may permit blood drives at

local hospitals off-base at which military members participate, use of base facilities for blood drives may require a lease

or armory use agreement (probably at no rental fee) under your state's law or military regulations. Likewise, ANG mem-

bers in units that are co-located with active duty units may participate in blood drives sponsored by the active duty mili-

tary treatment facility as part of the Armed Forces Blood Program.

Since these activities involve planning and coordination, commanders are well-advised to include their staff judge advo-

cate in the process.

_**KWIK NOTE: The ANG has only a passive role in conducting blood drives.**_

**RELATED TOPICS:**

**SECTION**

HIV

19-2

Cooperative Agreements

25-22

Leases and Armory Use Agreements

3-12

_**Air National Guard Commander's Legal Deskbook**_

675

_**Chapter 19, Medical Matters**_

_**Section 19-5 CPR Training and Potential Liability**_

_**Page 1**_

**CPR Training and Potential Liability**

**Updated by Lieutenant Colonel David Gorman, October 2013**

**AUTHORITY:** Applicable state law and regulations. 

## INTRODUCTION

**** Commanders may have two concerns with CPR:

1. May I or should I establish or permit a general CPR training program at the base?

2. Whether or not I do, what is the potential liability of a unit member who performs CPR?

**TRAINING**

The regulations require medical and other select unit personnel to know how to perform CPR as part of their military

duties. This part of the topic does not address CPR training of those whose military duties require it. But it is obviously

good for everyone to know how to perform CPR. May or should you as commander, establish or permit CPR training to

be conducted on the base by and for all military members? If you do, can or should it be done on duty hours or on off-

duty time?

In absence of state's specific laws, nothing prohibits conducting CPR training on a base. Depending upon who will be

trained, there may be state law or regulatory requirements regarding the use of base facilities for the training. As a practical matter, CPR training programs available to the general unit population may have to be conducted on off-duty time,

since there may not be sufficient time in a duty day to accomplish CPR training and the other required training essential

to your mission.

Members who participate in such CPR training, either as instructors or trainees, may be in a duty status because of their

status (for example, AGRs or those on Annual Training orders). If members are not already in a duty status, they should

not be placed on orders to participate in CPR training conducted during off-duty time.

CPR training should only be conducted by qualified instructors.

As with any activity permitted on base by the commander, unit members injured on or off-duty during the activity may

be entitled to medical and other line of duty benefits, depending on their status at the time of the injury.

**POTENTIAL LIABILITY**

If a participant in a CPR training program on base (whether the program was open to the general unit population or only

for those whose duties required the training) or a person who was assisted by a unit member using CPR is injured, is

there any liability on the part of the individual performing CPR, the commander, the state, or the Air National Guard?

**INJURY TO PARTICIPANT IN TRAINING PROGRAM**

Since the CPR training program on base was permitted by the commander and the participants are military members,

liability for negligent injury to a participant may be precluded by the Feres Doctrine which is discussed in a topic entitled

"FERES DOCTRINE" in this Deskbook. The Feres Doctrine precludes lawsuits where the injury was sustained in connec-

tion with military related activities by a military member and allegedly caused, in whole or in part, by a military member.

_**Air National Guard Commander's Legal Deskbook**_

676

_**Chapter 19, Medical Matters**_

_**Section 19-5 CPR Training and Potential Liability**_

_**Page 2**_

Even if liability potentially exists, there can be no liability without someone other than the injured party being negligent.

Even if negligence exists, liability will probably be assumed by either the state or federal government because the indi-

viduals were participating in an activity lawfully authorized by the commander. Remember, this applies to negligent acts,

_i.e._ , accidents, not to intentional torts (intentionally caused harm).

**INJURY TO PERSON ASSISTED BY CPR**

Many members of the National Guard are familiar with CPR and are encouraged to use that training in the event of an

emergency. As long as members act in good faith, perform CPR consistent with their training, and continue CPR for a

reasonable period of time, there is a small possibility of legal exposure and a large possibility that a life will be saved.

If a member is negligent in the performance of CPR, then both the member and the unit may have exposure to liability.

If the act and the injury were by and between military members, then the Feres Doctrine may apply to preclude liability,

if the CPR provider was negligent and was acting within the scope of employment at the time. Line of duty benefits may

apply to the injured member. Assuming there was negligence by a member in a duty status at the time of the CPR assist,

given the humanitarian intent of the assist and the general training in the military, the assisting member will likely be

found to have been acting within the scope of employment. If so, the member should be indemnified by the state or fed-

eral government for any liability.

If the member was not in a duty status at the time of the assist, there probably will be no state or federal indemnification of the member if the member is found negligent and the member may be personally liable. However, in order to establish

negligence, the party suing generally has to prove the following:

1. Duty - that the member had a duty to the person injured;

2. Breach of Duty - that the member of the unit failed to live up to that duty and breached it with regard to the person

injured;

3. Damages - that the person bringing the suit suffered some discernible form of injury; and

4. Proximate Cause - that there was some cause and effect relationship between the breach of duty and the actual inju-

ries (damages) suffered by the injured party.

Unless members have a duty to provide emergency care as part of their mission responsibilities, members of the unit do

not have a legal duty to come to the aid of another. Most people trained in CPR would aid another anyway. However,

once aid is initiated, the member has a duty to perform it in a reasonable and prudent manner. If the member is trained

in CPR and does not check the victim's airway, breathing, and circulation before commencing CPR ( _i.e._ , does not follow the correct CPR procedures), there is a potential issue of negligence since a reasonable and prudent person trained in

CPR should take that action. While no court has held that a rescuer must ensure that the victim recovers, many courts

require that trained rescuers perform in a reasonable and prudent manner consistent with their training. Please note that

Good Samaritan laws in some states may offer protection to those who perform CPR on another in emergency situations.

_**KWIK-NOTE: Commanders and their judge advocates should ensure members of the unit who are trained in CPR under-**_

_**stand their potential exposure if they come to the aid of a stranger or conduct CPR Training programs on base.**_

**RELATED TOPICS:**

**SECTION**

Cooperative Agreements

25-22

_Feres_ Doctrine

18-3

Indemnification Agreements

18-4

Lawsuits against National Guard Personnel

18-6

Leases and Armory Use Agreements

3-12

Liability of National Guard Medical Personnel

18-8

Line of Duty Determinations

1-19

Personal Liability of Federal and State Officials

18-9

_**Air National Guard Commander's Legal Deskbook**_

677

_**Chapter 19, Medical Matters**_

_**Section 19-6 Healthcare Practitioners**_

_**Page 1**_

**Healthcare Practitioners**

**Updated by Major Sonya Batchelor and Capt Elliot Selle (AFPC/JA), October 2008**

**AUTHORITY:** 42 U.S.C. 11131, _et seq._ ; Health Care Quality Improvement Act of 1986; 45 C.F.R. 60, reference (f), National Practitioner Data Bank; AFI 44-119, _Medical Quality Operations_ (24 Sep 07); DoDD 6025.13-R, _Clinical Quality Management Program (CQMP) in the Military Health Services System_ (MHS) (11 Jun 04), which incorporated DoDD 6025.14, _Department of Defense Participation in the National Practitioner Data Bank (NPDB)_ ; applicable state law and regulations. 

## INTRODUCTION

**** All privileged providers in the Air National Guard who can make independent medical decisions concerning patient care must be granted privileges before they can practice medicine in their healthcare specialty. Privileges. are permission to

provide medical and other patient care services in the granting institution, within defined limits, based on the individ-

ual's education, professional license, demonstrated clinical experience, clinical competence, ability, health, and judgment.

Although the focus on this topic is on privileged providers, non-privileged providers can be removed from patient care

pursuant to AFI 44-119, Ch 9D through similar procedures.

This topic discusses:

1. The circumstances and procedures leading to a loss of those privileges or credentials; and

2. The notices the Air Force is required to make to licensing boards whenever a healthcare provider separates from the

Air National Guard.

**LOSS OF PRIVILEGES**

AFI 44-119, Chapter 9, contains the regulatory guidelines for examining clinical adverse actions (privileged or non-

privileged) where the authority to practice for the Air Force Medical Service (AFMS) is adversely affected. This regula-

tion applies to all reserve components. Clinical adverse actions are taken in response to a threat to patient safety or to

the integrity of the AFMS related to clinical incompetence, professional misconduct, or impairment. The process has five

steps: inquiry period (optional), professional review process (credentials function or non-privileged provider review func-

tion), hearing procedures, appeal procedures through the Medical Practice Review Board, and final NGB/SG or Senior

Corps Chief review.

**MEDICAL FACILITY COMMANDER'S (MFC's) OPTIONS**

Depending on the urgency and scope of the problem with the practitioner's conduct, commanders have a few choices.

**Immediate Action: Summary suspension or abeyance**

When a practitioner's conduct requires that immediate action be taken to protect the health or safety of any patient, em-

ployee, or other person in the medical facility, the Credentials Function Chairperson or ANG designated senior physician

may summarily hold in abeyance or suspend all, or any portion of the clinical privileges of this practitioner. This sum-

mary action becomes effective immediately upon notice to the practitioner, and written notice should be given as soon as

possible thereafter. The notice of abeyance or suspension should include the reasons why, the scope of affected privi-

leges, the duration of the suspension/abeyance, and the impact the alleged problems could have on patient care or safety.

A suspension is an adverse action and is therefore a reportable event for the National Practitioner Data Bank (NPDB)

and the application of future privileges, licensure/certification/registration, or insurance. An abeyance is NOT an

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_**Section 19-6 Healthcare Practitioners**_

_**Page 2**_

adverse action and is used when available information on the provider's case is insufficient. An abeyance is good for 30

days, after which it becomes a summary suspension. Since abeyance is not an adverse action, providers may not be re-

quired to disclose a period of abeyance when applying for future licensure, privileges, or insurance, depending on the na-

ture of the inquiry on any such application. AFI 44-119 provides a format for formal written notice in Attachments 10

and 11.

**Professional Review Process:**

The role of the Credentials Function Review Process is to examine information obtained from an inquiry and/or other

sources, and to make recommendations to the Credentials Function Chairperson or ANG designated senior physician re-

garding the provider's clinical privileges. The Credentials Function must be composed of at least three privileged pro-

vider members. At least one member shall be a professional peer of the individual who is the subject of the action. Mem-

bers may be brought in from other Medical Treatment Facilities (MTFs) to meet this requirement,

The Credentials Function Committee Chairperson or ANG-designated senior physician may not serve on the Credentials

Function. However, the Credentials Function Committee Chairperson can be self-designated or can designate another to

be an investigating officer (IO) if they feel additional evidence should be gathered to help the Credentials Function make

informed recommendations to the Credentials Function Chairperson or ANG designated senior physician. Likewise, the

Credentials Function may refer the case to the IO for further inquiry if they feel additional information is needed.

Based upon investigation and deliberation, the Credentials Function may recommend any of the following to the Creden-

tials Function Chairperson or ANG designated senior physician:

1. Reinstatement of the affected privileges (to include monitoring and evaluation)

2. Restrictions - temporary or permanent limitations to some or all of privileges

3. Reduction – permanent removal of a portion of privileges

4. Revocation – permanent removal of all patient duties

5. Denial – denial is applicable if pursuant to an initial application for privileges or a request for renewal.

The Credentials Function Chairperson or ANG designated senior physician is not bound by the recommendations of the

Credentials Function.

_**Clinical Adverse Action Hearings**_

If, after reviewing the recommendation of the Credentials Function, the Credentials Function Chairperson or ANG desig-

nated senior physician intends to either restrict, reduce, or revoke the provider's privileges, then a written notice of proposed adverse action (AFI 44-119, Atch 12) must be issued to the provider within prescribed time frames.

Any provider whose clinical privileges the Credentials Function Chairperson or ANG designated senior physician intends

to deny, reduce, restrict, or revoke is entitled to a hearing. The provider has _30 calendar days_ after receipt of the clinical adverse action notification letter to request a hearing. This 30 calendar days affords him or her opportunity to meet with

legal counsel.

The following guidelines, which do not confer substantive rights upon a practitioner, apply to all Clinical Adverse Action

Hearings:

The Hearing Panel must include at least three privileged providers including one member of the practitioner's discipline.

The members must be impartial with respect to the reviewing personnel. As with the composition of the Credentials

Function, certain personnel may not serve on a Hearing Panel or vote or decide on recommendations to suspend or termi-

nate privileges. They include:

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_**Chapter 19, Medical Matters**_

_**Section 19-6 Healthcare Practitioners**_

_**Page 3**_

1. Members of the staff who are in the practitioner's OPR chain;

2. A member who has taken summary action to suspend the practitioner's privileges;

3. An investigation officer; or

4. A person whose testimony plays a significant part in the action against the practitioner.

5. Any officer/member who is participating, or has participated, in other administrative proceedings (court-martial board

or administrative review board) regarding the provider under review.

6. Any member who is reviewing, or has reviewed, the provider's actions under consideration by the Credentials Func-

tion.

7. The Credentials Function Chairperson or ANG designated senior physician.

The ANG Staff Judge Advocate (SJA) will appoint a legal advisor (usually a Medical Law Consultant) to rule on any proce-

dural issues that are raised before or during the hearing, to administer oaths to the hearing panel and witnesses, keep

the record clean, and rule on challenges for cause, except those against the legal advisor. The legal advisor does not play

the role of a recorder/judge. The chairperson (senior ranking member of the Hearing Panel), with the help of the legal

advisor, arranges for the orderly presentation of evidence. AFI 44-119 and the Hearing Script at Atch 14 provide a proce-

dural guide.

A legal representative (usually another Medical Law Consultant or Judge Advocate from the legal office) will represent

the government's case against the provider under review. The provider under review can be represented by a military at-

torney at no cost or a civilian attorney at the member's own expense. The provider under review may present evidence

and witnesses to the Hearing Panel at his/her own expense.

A verbatim record of the proceedings is required. The MTF is responsible for obtaining court reporting services for the

hearing. Court reporters may be used from the SJA office, if available. All deliberations are closed and not recorded. The

Hearing Panel may only seek legal or procedural advice from the legal advisor.

Recommendations are by majority vote, and a minority report may be submitted. Recommendations are limited to one or

more of the following: 1) Reinstatement, 2) Restriction, 3) Reduction, 4) Revocation, or 5) Denial. Restriction, reduc-

tion, revocation, and denial are reportable to the NPDB.

Any recommendations adverse to the practitioner are reviewed by the Credentials Function, which makes recommenda-

tions to the Credentials Function Chairperson or ANG designated senior physician. The Credentials Function action

should take place after the transcript is prepared, because the member has a right to a copy of the Findings and Recom-

mendations and hearing record. The practitioner has 10 duty days after receiving the hearing transcript, including all ex-

hibits, the findings and recommendations worksheet and any additional recommendations,, if any, to prepare and submit

in writing a statement of exceptions, corrections, or any other matter desired to be presented to the Credentials Function

Chairperson or ANG designated senior physician. The Credentials Function Chairperson or ANG designated senior physi-

cian is not bound by the Hearing Panel or Credentials Function.

If the final action includes denying, reducing, restricting, or revoking privileges, the provider must also be notified of the right to submit a written appeal to the final decision to NGB/SG through the Credentials Function Chairperson or ANG

designated senior physician to AFMOA/SG3OQ. In addition, the provider must be notified that the action may be report-

able to regulatory agencies IAW DoD directives. The local SJA must make sure that the practitioner is served with a copy

of the Credentials Function Chairperson or ANG designated senior physician's decision, advised of appeal rights in writ-

ing, and receives a copy of the transcript if requested.

**PROBLEMS AND PITFALLS**

_****_ Before adverse action listed in this section, for either privileged or non-privileged providers, coordination occurs with the wing Staff Judge Advocate, the regional Medical Law Consultant, and Surgeon General's office. _See_ AFI 44-119, para 9.3, Coordination with legal advisors should continue through the resolution of any adverse action or abeyance issue.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 19, Medical Matters**_

_**Section 19-6 Healthcare Practitioners**_

_**Page 4**_

The Chairperson of the Hearing Committee with the help of the legal advisor (Judge Advocate) may arrange for the or-

derly presentation of evidence. This does not mean that the legal advisor can act as a recorder or as an advocate for the

Government. Information and testimony from this hearing is Quality Improvement information gathered specifically for

that purpose and as such is protected from release by 10 U.S.C.§ 1102.

It is essential to have a strong personality as the Committee Chairperson. Physicians tend to give everyone, especially

their peers, every benefit of the doubt. Respondent's counsel can exploit this with the result being an excessively long

hearing that regularly wanders away from matters of relevance. The legal advisor and the chairperson should keep the

committee hearing on track. The ANG SJA is encouraged to contact the nearest active duty Air Force Medical Law Con-

sultant for assistance and insight into these proceedings as early as possible.

Clinical adverse actions are entirely independent from any administrative and UCMJ actions. Joint processing of other

administrative or judicial action may be appropriate, along with action to discharge physicians.

**REQUIRED NOTIFICATIONS**

The Health Care Quality Improvement Act of 1986, established an alert system to facilitate a comprehensive review of

healthcare practitioners' professional credentials and create a data bank of medical malpractice payments, adverse licen-

sure actions, adverse clinical privilege actions, adverse professional membership actions and Medicare/Medicaid exclu-

sion reports. Known as the National Practitioner Data Bank (NPDB), the data bank is governed by DHHS regulations (45

CFR Part 60). Reports shall be made to the NPDB and the Centralized Credentials Quality Assurance System (CCQAS)

in cases of adverse privileging actions in accordance with the following:

1. A practitioner who separates from active duty or whose business relationship with the Department of Defense ends,

and whose clinical privileges are suspended at the time, shall be reported to the NPDB and appropriate State licensing

boards. Clarifying or correcting notification of the NPDB and State licensing boards shall be made, if indicated, following

completion of hearing procedures.

2. The Surgeon General shall report to NPDB and the CCQAS all final adverse privileging actions consistent with the

NPDB reporting. Reporting shall occur within 30 calendar days of the date of Surgeon General approves the adverse privi-

leging action.

3. The Surgeon General shall report adverse privileging actions taken against providers with alcohol and/or chemical-

related impairments who do not self-refer into a rehabilitation program, or those who self-refer, but do not complete the

rehabilitation program.

4. The Surgeons General shall provide, at least annually to the DoD Risk Management Committee for review, manage-

ment information outlining the number of adverse privileging actions taken, the number reported to the NPDB, the time-

liness of the reports, any backlog, and any problems with reporting.

5. Practitioners shall have benefit of due process procedures for professional review activities under requirements of the

Military Departments' regulations and healthcare entity professional staff by-laws in cases of adverse clinical privileging

actions. _****_

6. Information on professional review actions or adverse privileging actions for healthcare practitioners shall be reported

to the appropriate State licensing boards, professional boards, Federation of State Medical Boards, the NPDB, and the

Defense Practitioner Data Bank.

7. Privileging actions resulting from a provider's medical disability that affects or could affect adversely the health or welfare of a patient or patients shall be reported to the NPDB.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 19, Medical Matters**_

_**Section 19-6 Healthcare Practitioners**_

_**Page 5**_

The Department of Defense is required to report to the NPDB medical malpractice payments; professional review actions

that adversely affect a physician's or a dentist's, or other healthcare provider's clinical privileges for more than 30 days; and the acceptance of a healthcare provider's surrender or restriction of clinical privileges while under investigation for

possible professional incompetence or improper professional conduct, or in return for not conducting an investigation or

professional review action. Revisions to such actions must also be reported.

Medical malpractice claims: A report shall be made to the NPDB in the name of the practitioner when a malpractice pay-

ment is made for the benefit of a healthcare practitioner. When a malpractice payment is made it is presumed to be made

for the benefit of a healthcare practitioner. This presumption becomes conclusive 180 days after the Surgeon General con-

cerned receives notice of such payment unless, before that date, the Surgeon General makes a final determination that

the malpractice payment was not caused by the failure of any practitioner(s) significantly involved to meet the standard

of care.

In _Feres_ -barred cases (when a military patient is injured or dies due to medical malpractice), money cannot be paid on a claim. Therefore, a report shall be entered by the Surgeon General into the disability sub-module of the Risk Management module of the CCQAS in the name of the practitioner.

**NOTICE TO LICENSING BOARDS**

When healthcare providers separate from the National Guard the commander is required to notify HQ AFMPC/SG who,

with the concurrence of HQ USAF/SG, notifies the appropriate licensing boards of the practitioner's identity and the

status of the practitioner's credentials as of the date of separation. This notice is required whether any de-credentialing

action has been taken. For military and civilian physicians, HQ AFMPC/SG notifies the Federation of State Medical

Boards and the appropriate medical board certification agency.

_**KWIK NOTE: KWIK-NOTE: Ensure clinic commanders know the procedures for loss of privileges and notice to licensing**_

_**boards for their practitioners.**_

**RELATED TOPICS:**

**SECTION**

Evidence - Differing Standards And Burdens of Proof

8-4

Investigations and Inquiries

16-11

Judicial Review of Military Administrative Actions

18-5

Legal Reviews

17-11

_**Air National Guard Commander's Legal Deskbook**_

682

_**Chapter 19, Medical Matters**_

_**Section 19-7 Hospital Assistance Agreements**_

_**Page 1**_

**Hospital Assistance Agreements**

**Updated by Major Sonya Batchelor, October 2008**

**AUTHORITY:** AFPD 41-1, _Health Care Programs and Resources_ (15 Apr 94) AFI 41-106, _Unit Level Management of Medical_ _Readiness Programs_ (14 Apr 08), Incorporating Change 1 (25 Sep 08); AFI 10-2501, _Air Force Emergency Management (EM)_ _Program Planning And Operations_ (24 Jan 07); AFI 10-2603, _Emergency Health Powers On Air Force Installations_ (7 Dec 05); AFI 10-2604, _Disease Containment Planning Guidance_ (6 Apr 07); applicable state law.

**PURPOSE**

**** In the event of disaster, ANG medical clinics not located on an active duty facility are required by AFI 41-106 to arrange agreements to provide assistance between military installations and local civilian hospitals near the base. These agreements should be part of the Disaster Preparedness Operations Plan (Base OPlan 32-1).

**PROVISIONS**

These agreements will be one-sided since most ANG clinics do not provide extensive or long-term treatment. Thus, the

formalities and provisions of similar civilian assistance agreements, _e.g.,_ Reciprocal Fire Protection, are not necessary. Provisions pertaining to a hospital's liability for negligence or malpractice and payment for services should not be part of

these agreements. ANG units do not have the authority to waive hospital's liability for negligence (such as the case of a

Reciprocal Fire Protection Agreement) on behalf of the government nor do they have the authority to agree in advance to

payment. Avoid including any liability or payment provisions in the agreement. _See_ an example at Attachment 1.

Before proposing these agreements, consult your Staff Judge Advocate concerning state statutes and regulations that gov-

ern the following issues:

1. Authority of a civilian hospital to enter mutual aid or assistance agreements with the ANG;

2. The requirement that all general hospitals treat patients in that facility and not transfer them to another facility solely due to inability to pay;

3. Rate of fee provisions;

4. "Good-Samaritan" laws - generally, any voluntary assistance in an emergency by physicians outside their offices or outside a hospital, rendered without any expectation of compensation, exempts the physician for liability or damages due to

negligence. (Usual exception: gross negligence);

5. State defense emergency programs if a disaster or attack;

6. Reciprocal mutual aid between two or more political subdivisions ( _e.g._ , cities, towns, villages) with the approval of the state Civil Defense Commission or similar body; and

7. Immunity from liability for personal injury, wrongful death or property damage, if a party acts pursuant to a mutual

aid agreement in preparation for, or in furtherance of civil defense.

While no specific format for the agreement is prescribed by AFI 41-106 or AFI 10-2501, Attachment 1 can be modified to

comply with varying state requirements. These agreements and the regulations should be reviewed every 12 months and

updated as necessary. When agreements are updated as a result of changes ask the hospital to re-execute the agreement

and complete an updated questionnaire. It is a good idea to include the earlier agreement for quick reference.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 19, Medical Matters**_

_**Section 19-7 Hospital Assistance Agreements**_

_**Page 2**_

**PRACTICAL TIP**

Always contact the hospital before sending the proposed letter agreement and questionnaire. Make written summaries of

the calls. If the hospital will not sign the agreement, a personal visit from the clinic commander, wing and/or group com-

mander may be necessary to secure the agreement. Document all visits. The documentation can be used during an inspec-

tion to explain the absence of an agreement. If unsuccessful one year, try again the next year.

_**KWIK-NOTE: Assign one person in the clinic to obtain and annually update hospital assistance agreements.**_

**RELATED TOPICS:**

**SECTION**

Aid To Civilian Authorities

6-2

Aircraft Accidents And Safety Investigations Off-Base

16-2

Indemnification Agreements

18-4

Medical And Dental Care From Civilian Sources

19-9

Memoranda Of Understanding (MOUs)

6-6

Payment For Healthcare Treatment Of ANG Members

4-7

Relationship With Other Military Components

11-6

_**Air National Guard Commander's Legal Deskbook**_

684

_**Chapter 19, Medical Matters**_

_**Section 19-7 Hospital Assistance Agreements**_

_**Page 3**_

_Attachment 1_

_Page 1 of 2_

(UNIT LETTERHEAD)

MEMORANDUM FOR (Hospital Administrator __________________ Hospital Address)

Date

FROM: Unit Clinic/Point of Contact

Subject: Disaster Preparedness Plan - Hospital Assistance Agreement

1. The (unit) United States Air Force Clinic, (State) Air National Guard, pursuant to federal regulations, is required to

annually review and update its disaster preparedness plan for the National Guard Base at (base location). Annually, we

must review off-base medical assistance resources that could be made available in the event of a local disaster that would

generate mass casualties. While we certainly hope that an act of nature such as a hurricane, or tornado, or an explosion

or aircraft accident never happens, we need to be prepared for just such an event. Therefore, we would appreciate any as-

sistance that could be provided by local civilian medical facilities such as yours.

2. We would appreciate your taking the time to complete the attached Disaster Preparedness Questionnaire which will

provide us with some basic information regarding your facilities, capabilities and services that could be made available in

the event of a disaster. We realize that prior coordination with your facility would be necessary and that any local disaster might also involve the civilian community and that your resources and/or services may not then be available.

3. By signing, dating and returning both the Questionnaire, which is part of the agreement, and a copy of this letter agree-

ment to the office listed at the top of the Questionnaire, you are ONLY AGREEING to provide hospital assistance IF

your facilities, resources, and services are THEN AVAILABLE at the time they are needed.

4. Your assistance in this matter is greatly appreciated. After you have signed this letter agreement, we shall contact you

every 12 months to review and update our unit's disaster preparedness plan. If at any time within a 12 month period

your answers to the Questionnaire provided change, please update the Questionnaire and send it to us. We have pro-

vided an additional blank of the Questionnaire for that purpose. Our signature to this letter is our agreement to cooper-

ate with you in the course of your rendering assistance. Should you have further questions, please feel free to contact

(rank, name), Medical Services Superintendent, (State ANG, unit) USAF Clinic at (phone number), between the hours

of (times), Monday through Friday.

__

__

__

__

__

__

__

__

__

_________________________________________________

__

__

__

__

__

__

__

__

__

JOHN T. DOE, rank

__

__

__

__

__

__

__

__

__

(State ANG) Medical Readiness Officer (Unit) USAF Clinic

In the event of a local disaster, we agree to assist the (Unit, State ANG) with our facilities, resources, and services to the extent they are then available.

Name of Hospital

By: _______________________________________________

_____________________________

Name, Hospital Administrator or Authorized Agent

Date

_**Air National Guard Commander's Legal Deskbook**_

685

_**Chapter 19, Medical Matters**_

_**Section 19-7 Hospital Assistance Agreements**_

_**Page 4**_

_Attachment 1_

_Page 2 of 2_

**DISASTER PREPAREDNESS QUESTIONNAIRE**

Please fill in the appropriate information for each blank and mail to:

Point of Contact (Unit) USAF Clinic/(State ANG) (Unit address)

NAME OF FACILITY:___________________________________________________________________

STREET ADDRESS:___________________________________________________________________

CITY:__________________________________ STATE:______________ ZIP CODE:_______________

TELEPHONE NUMBER (____) _______________________________

DAYTIME CONTACT PERSON:___________________________________________________________

NIGHTTIME CONTACT PERSON:_________________________________________________________

NUMBER OF PHYSICIANS ON DUTY: DAY:_________ NIGHT:__________

NUMBER OF REGISTERED NURSES ON DUTY: DAY:_______ NIGHT:__________

NUMBER OF LICENSED PRACTICAL NURSES ON DUTY: DAY_____ NIGHT:__________

NUMBER OF HOSPITAL BEDS:_____________

NUMBER OF ICU BEDS: SURGICAL:_____________ MEDICAL:_____________

NUMBER OF AMBULANCES IN SERVICE: DAY:__________ NIGHT:__________

NUMBER OF AMBULANCE PERSONNEL ON DUTY: DAY:________ NIGHT:__________

APPROXIMATE NUMBER OF CASUALTIES THAT YOUR STAFF AND FACILITY/SERVICE COULD ACCOMMO-

DATE: _________________

ADDITIONAL COMMENTS:_________________________________________________________________________________

____________________________________________________________________________________________

Name of Hospital

By: _______________________________________________

_____________________________

Name, Hospital Administrator or Authorized Agent

Date

_**Air National Guard Commander's Legal Deskbook**_

686

_**Chapter 19, Medical Matters**_

_**Section 19-8 Medical and Dental Care During Inactive Duty Training**_

_**Page 1**_

**Medical and Dental Care During Inactive Duty Training**

**Updated by Major Sonya Batchelor, October 2008**

**AUTHORITY:** AFI 41-115, _Authorized Health Care and Health Care Benefits in the Military Health Services System_ (29 Dec 01).

**AUTHORIZED CARE**

**** ANG personnel, except when on active duty ( _i.e.,_ Title 10) or full-time National Guard duty ( _i.e._ , Title 32), are not authorized recipients of military medical care. Accordingly, MEDICAL CARE DURING UTAs is NOT AUTHORIZED except for

a line of duty injury or emergency situations. ANG medical personnel are authorized to perform required physical exami-

nations and associated diagnostic tests, to administer required immunizations, and train for mobilization. This training,

however, may not include the provision of routine medical care to personnel not authorized to receive it.

**ADVERSE CONSEQUENCES**

NATIONAL GUARD UNITS MUST NOT RUN SICK CALL FOR UTA PERSONNEL TO TREAT INJURIES, ILLNESSES,

OR DISEASES INCURRED OR CONTRACTED IN CIVILIAN STATUS AND WITH WHICH THE MEMBER REPORTS

TO DRILL. This practice exposes our medical personnel to considerable risk. Medical personnel who undertake to pro-

vide this unauthorized care face the risk of being sued for malpractice, to include a missed diagnosis. Furthermore, the

supervisors of medical personnel providing unauthorized care, up through the unit commander, the State Surgeon, the

Adjutant General, and the State itself, might also successfully be sued for negligent supervision.

Commanders confronting this situation should advise the member who reports for drill in such condition to seek civilian

medical help and, subject to consultation with their Staff Judge Advocates, may assist the member in getting to an appro-

priate medical care provider. A member who comes to drill in need of medical care is not fit for full duty on that day.

Questions of pay, points, excused absences and light duty should be resolved on a case-by-case basis with input from the

member's supervisors, unit commander, medical personnel, CBPO Chief, and Staff Judge Advocate.

While ANG medical personnel are entitled to personal immunity from suit under 10 U.S.C. 1089, this applies only to

care provided within the scope of employment. The Department of Justice (DoJ) will view the provision of routine medi-

cal care to an individual not authorized to receive it as being outside the scope of employment. DoJ may decline to repre-

sent the military member who is sued, and the member may be personally liable, because it is unlikely that the state or

United States will provide indemnification to the member.

**SPECIAL SITUATION**

At times, ANG commanders and medical personnel are confronted with a member who either reports for a UTA ill or be-

comes ill during a UTA. Two questions arise from this situation.

**Pay**

The first question involves pay. Do you pay the member who reports for the UTA ill? That is the commander's call. As-

sume the illness renders the member unable to perform duty. Some members will report for drill although ill, just to get

paid even though they know they cannot perform duty. Although ill, some will report with the legitimate intention of try-

ing to perform duty. Regardless of the intent of the member, the general rule, pursuant to ANGI 36-2001, is for the mem-

ber to perform at least two hours of duty to be eligible for UTA pay. This first question is the easier of the two to resolve.

**Send Member Home – Liability Problem**

The second question concerns treatment, send the member home and potential liability that could result. Does the ANG

_**Air National Guard Commander's Legal Deskbook**_

687

_**Chapter 19, Medical Matters**_

_**Section 19-8 Medical and Dental Care During Inactive Duty Training**_

_**Page 2**_

have the obligation to ensure the ill member arrives home safely? The analysis of these issues is the same whether the

member reports for the UTA ill or becomes ill during the UTA.

ANG medical personnel are not authorized to render medical treatment to ANG members in an inactive duty training

status in non-line of duty (LOD) situations. Even the determination by ANG medical personnel that a member who re-

ports to the UTA ill or becomes ill during a UTA is too ill to perform duty may constitute unauthorized treatment by

ANG medical personnel.

Thus, the unit commander is left with the decision of whether the member is unable to perform duty due to illness. The

commander probably should trust the member in most situations. If you decide to release the member from duty, how

does the member get home? If you decide the member is too ill to perform duty, is the member too ill to drive home

alone? Should you contact a member of the family to come and get the member? Do you arrange for one of your mem-

bers to leave that member's duty station and drive the ill member home? Each choice presents a problem.

If you let the member drive home alone, and the member gets into an accident attributable to the illness, you (the ANG

or the State) may be subject to liability for not taking adequate precautions to ensure the member safely got home. There

may be no family member available to pick-up the member, and you may not wish or be able to spare another member to

drive the ill member home.

From a liability standpoint, the rule is to act reasonably under the circumstances. Thus, each case is evaluated differently.

We have tried to set forth the factors and their ramifications to help you to make the best choice if this problem con-

fronts you. Because of the potential liability these situations present, thoroughly document the occurrence and the basis

for your decision, only after consultation with your clinic commander and Staff Judge Advocate.

_**KWIK-NOTE: Do not run sick call during UTA periods.**_

**RELATED TOPICS:**

**SECTION**

_Feres_ Doctrine

18-3

Indemnification Agreements

18-4

Lawsuits Against National Guard Personnel

18-6

Liability of National Guard Medical Personnel

18-8

Line of Duty Determinations

1-19

Medical And Dental Care From Civilian Sources

19-9

Payment For Healthcare Treatment of ANG Members

4-7

Personal Liability of Federal And State Officials

18-9

Relief From Civil Liability

18-10

Medical Evaluation Boards

19-11

Medical Evaluation (Profile Change)

19-12

_**Air National Guard Commander's Legal Deskbook**_

688

_**Chapter 19, Medical Matters**_

_**Section 19-9 Medical and Dental Care From Civilian Sources**_

_**Page 1**_

**Medical and Dental Care from Civilian Sources**

**Updated by Major Sonya Batchelor, October 2008**

**AUTHORITY:** AFI 41-115, _Authorized Health Care and Health Care Benefits in the Military Health Services System_ (28 Dec 01) AFI 36-2910, _Line of Duty (Misconduct) Determination_ (4 Oct 2002); ANGI 36-3001, _Air National Guard Incapacitation Benefits_ (31 May 1996).

**WHEN AUTHORIZED**

**** Civilian medical and dental care for active duty Air Force personnel, members of the Air Force Reserve, and eligible members of the Air National Guard as defined below, is authorized at U.S. Government expense only when the required treat-

ment cannot reasonably be obtained from uniformed services medical facilities. These facilities include the Departments

of the Air Force, Army, and Navy, or Uniformed Service Treatment Facilities, or from other government medical facilities,

such as Veterans Administration (VA) hospitals. The only exception is when treatment under uniformed services or

other government medical facilities will create an unnecessary hardship or greater expense to the government because of

lost duty time, and the related transportation and per diem costs.

**ELIGIBLE MEMBERS OF ANG**

1. ANG members who are injured or become ill in the line of duty when on active duty (AGR personnel) or inactive duty

personnel performing an Air Force directed mission (such as ferrying aircraft or responding to a runway alert, or an ANG

member serving on an active duty tour under 32 U.S.C. Section 502f or 503).

2. ANG members who are on active duty for training, or on inactive duty training, including travel to and from that duty,

are also eligible for medical and dental care from civilian sources according to ANG directives, at ANG expense. Such

medical care may be authorized by the ANG organization commander.

Payment for medical or dental care furnished to ANG patients not on extended active duty with the Air Force will be

made from funds in the ANG appropriation by the United States Property and Fiscal Officer (USPFO) of the state con-

cerned, or the assistant USPFO assigned to the ANG activity.

**TYPE OF CARE AUTHORIZED FROM CIVILIAN SOURCES**

Medical and dental care from civilian sources is provided to those eligible to the same degree it would be provided in the

direct care system as outlined in AFI 41-115. The services of chiropractors are not authorized. If the case is not an emer-

gency, refer the request to a competent medical authority for an advance determination.

_**KWIK-NOTE: Eligible ANG members may only receive medical and dental care from civilian sources if government care is**_

_**not reasonably available or is not cost-effective.**_

**RELATED TOPICS:**

**SECTION**

TRICARE And DEERS

4-3

Disability Of National Guard Members

4-4

Hospital Assistance Agreements

19-7

Line Of Duty Determinations

1-19

Medical And Dental Care During Inactive Duty Training

19-8

Medical And Dental Care To Persons Authorized

19-10

Payment For Healthcare Treatment Of ANG Members

4-7

Relationship With Other Military Components

11-6

Travel Expenses

27-11

United States Property And Fiscal Officer (USPFO)

25-21

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_**Section 19-10 Medical and Dental Care to Persons Authorized**_

_**Page 1**_

**Medical and Dental Care to Persons Authorized**

**Updated by Major Sonya Batchelor, October 2008**

**AUTHORITY:** AFI 41-115, _Authorized Health Care and Health Care Benefits in the Military Health Services System_ (29 Dec 01); OpJAGAF 1981/1.

**MEDICAL CARE**

**When Authorized**

**** Guard members who incur or aggravate an injury or illness in the line of duty while performing active duty, active duty for training or inactive duty for training or while traveling directly to or from such duty are entitled to the medical or dental care appropriate for treatment of the condition, including hospitalization or re-hospitalization, until the resulting disability cannot be materially improved by further treatment.

**How Long Authorized**

A tour of duty is not extended to cover hospitalization beginning during a tour and extending beyond the termination of

such a tour. When Guard members are hospitalized beyond the termination date of an active duty tour, active duty for

training, or inactive duty training, their status is that of a Guard member not on active duty or inactive duty for training.

See the topic " _LINE OF DUTY DETERMINATIONS_ " in this _Deskbook_ for a discussion of the other benefits for which Guard members may be eligible in these situations.

**Lengthy Care Situations**

Individuals who are hospitalized beyond their training period and appear disqualified for further service because of inju-

ries or diseases incurred or contracted in the line of duty, should meet a Medical Evaluation Board (MEB). Contact HQ

USAF/SGHA for assistance if necessary.

Civilian medical care expenses (to include supplemental care charges) are authorized for Reserve Component members

as specified in AFI 41-115. The National Guard pays for ANG member's civilian medical expenses unless the medical

treatment facility is referring the patient for care. In the latter case, the medical treatment facility pays for the care.

**DENTAL CARE**

Complete elective dental care may not be available during tours of active duty or active duty for training for the correc-

tion of dental defects which have accumulated before the start of a tour. A dental officer may elect to provide treatment,

but may also defer. Each case is evaluated on individual merit.

**_KWIK-NOTE: Coordination with Finance, MPF and the clinic is essential to ensure appropriate medical care expenses are_**

_**paid for authorized unit members.**_

_****_

**RELATED TOPICS:**

**SECTION**

TRICARE And DEERS

4-3

Disability Of National Guard Members

4-4

Line Of Duty Determinations

1-19

Medical And Dental Care During Inactive Duty Training

19-8

Medical And Dental Care From Civilian Sources

19-9

Medical Evaluation Boards

19-11

Medical Evaluation (Profile Change)

19-12

_**Air National Guard Commander's Legal Deskbook**_

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_**Section 19-11 Disability Evaluation System**_

_**Page 1**_

**Disability Evaluation System**

**Updated by Lt Col Sandra K. Drewniak and Capt Elisa L. Jones (AFLOA/CLSA, Office of Airmen's Counsel)**

**December 2015**

**AUTHORITY:** AFI 36-3212, _Physical Evaluation for Retention, Retirement and Separation_ (02 Feb 06); AFI 48-123, _Medical Examination and Standards_ (05 Nov 13); USAF Medical Standards Directory (06 Feb 14); AFI 41-210, _Tricare Operations Patient_ _Administration Functions_ (06 June 12); AFI 10-203, _Duty Limiting Conditions_ ; HQ AFRC/SGP Consolidated Program Memorandum 2015 (01 Jun 15); DoDI 1332.18, _Disability Evaluation System_ (DES) (05 Aug 14); DODI 1332.39, _Application of the_ _Veterans Administration Schedule for Rating Disabilities_ (14 Nov 96); Secretary of Defense Policy Memorandum: _Policy Memorandum on Implementing Disability-Related Provisions of the National Defense Authorization Act of 2008_ (Pub. L. 110-181) (14 Oct 08). 

## INTRODUCTION

**** Title 10 U.S.C. § 1216, Chapter 61, allows a member to be removed from service due to inability to perform the duties of the member's office, grade, or rank, or a rating due to disease or injury incurred or permanently aggravated while the

member was entitled to basic pay and: (1) the disability is permanent, and (2) did not exist prior to military service

(EPTS). Under Title 10 United States Code, Section 1207, members who incur an unfitting disability that was caused by

intentional misconduct or willful neglect or was incurred during a period of unauthorized absence shall be separated

without entitlement to any benefits under Chapter 61 and any implementing Department of Defense Directive or Instruc-

tion.

The purpose of the Disability Evaluation System (DES) is to maintain a fit and vital force, remove members who have

unfitting medical disabilities, and ensure fair compensation. Traditional ANG members who are on active duty for more

than 30 days and who are medically disqualified for impairments related to their military status or performance of duty

may enter the DES. ANG members who are not on a call to active duty of more than 30 days and who are pending separa-

tion for non-duty related medical conditions may enter the DES for a determination of fitness only. A Line of Duty

(LOD) determination is crucial in determining whether a case will be processed as a duty-related disability evaluation or

a non-duty related fitness evaluation. **It is very important to note that failure to conduct a line of duty determina-**

**tion when warranted could deny the member the benefit of a disability evaluation and receipt of related compen-**

**sation.**

On occasion, the member may also be facing punishment under the Uniform Code of Military Justice. If charged with an

offense that could result in dismissal or punitive discharge or convicted and sentenced to dismissal or punitive discharge,

the member may not undergo a disability evaluation, unless the case fits one of the exceptions noted in AFI 36-3212,

paragraph 1.3. The member may be allowed to reenter the DES if the court-martial has a positive outcome for the mem-

ber. In cases where the member has an unfit finding but is also pending administrative separation, the member remains

in the DES, but the Secretary of the Air Force (SAF) Personnel Council will make the final determination as to the ulti-

mate disposition of the case, to include type of discharge and service characterization.

Certain conditions render an individual unsuited for duty, rather than unfit. These conditions cannot be entered into the

Integrated Disability Evaluation System (IDES). Unsuiting disorders are conditions that interfere with military service

and must not be confused with disorders that render a member medically unfit for duty. Disorders that are unsuiting (for

example, certain personality disorders) are managed administratively through the patient's chain of command IAW AFI

36-3209, _Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members_.

**DES CASE PROGRESSION**

DoD's objective in all DES processes is to collaborate with the Department of Veterans Affairs (VA) to ensure continuity

of care, timely processing and seamless transition of the service member from DoD to VA in cases of disability separation

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_**Section 19-11 Disability Evaluation System**_

_**Page 2**_

or retirement. This process begins with a review of an airman's condition by credentialed Reserve Medical Unit (RMU)

personnel and/or referral to MPF for pre-separation briefing on their rights and options following a deployment limiting

Assignment Limitation Code (ALC) action or "unfit" finding by a the appropriate authority. DES cases may be disposed

of by an Initial Review in Lieu Of (RILO); Medical Evaluation Board (MEB); or a Fit for Duty/World-wide Duty (FFD/

WWD) determination. For ANG members, with potentially disqualifying defects a determination of whether the condi-

tion is In the Line of Duty IAW AFI 36-2910, _Line of Duty (Misconduct) Determination_ must first be made. If defects are found to be In Line of Duty, processing occurs through the process outlined in paragraph 5.1.1 of AFI 48-123, _Medical Examinations and Standards_. Potentially disqualifying defects that are not In Line of Duty require a fitness for duty evaluation and must be accomplished through the ARC/SGP. All medical conditions and defects are reviewed by the Deployment

Availability Working Group (DAWG), IAW AFI 10-203, _Duty Limiting Conditions_.

The disposition of the DAWG review may include dismissal of a case or referral for Initial Review-in-lieu-of (RILO) of

MEB. If the airman is found to be fit for continued military service and mobility based on the information considered,

the AF Form 469 may be updated appropriately and the case dismissed to routine medical care. A note will be placed in

the airman's medical record indicating that the condition was reviewed for possible MEB and found to be fit without

need for Initial RILO or MEB.

**REVIEW IN LIEU OF MEB (RILO/IRILO)**

These cases are the initial review by ARC/SGP for FFD/WWD or MEB packages. It allows for expeditious return of serv-

ice members who do not need full case adjudication. It is the initial look by ARC/SGP and following this review cases

will be returned for either full case processing, returned without restrictions, or returned with restrictions ( _i.e._ , ALC

Coded). Providers will refer a case for Initial RILO consideration when it is determined an airman may not meet reten-

tion standards IAW AFI 48-123 or is mobility-restricted for a period that will, or is reasonably anticipated to, exceed 365

days. Cases may also be referred by: (1) a service member's commander due to poor duty performance or deployment

concerns stemming from potential medical or mental health reasons; (2) a Permanent Change of Station (PCS), TDY, or

deployment is cancelled for a medical or mental health reason; or (3) at the direction of ARC SGP. In all cases, MTF per-

sonnel shall consider unit commanders and first sergeants to be teammates in the accomplishment of appropriate duty

or mobility restrictions.

Once an airman has been identified by the DAWG as requiring an Initial RILO (or FFD/WWD evaluation for ANG Air-

men with non-duty related conditions - "LOD no"), the provider will work RMU personnel to ensure all Initial RILO (or

FFD/WWD) requirements are met IAW AFI 41-210. ARC SGP will review the Initial RILO packages and will advise the

designated representative of the disposition: (1) MEB; (2) FFD/WWD for cases found not to be in the line of duty

("LOD no"); (3) Return to duty; or (4) Return without action, more medical information needed. The disposition by

ARC/SGP is final and has the same effect and authority as a MEB. Appeal options by the member are, therefore, the

same as an MEB.

**Note: The existence of a physical defect or condition does not in itself necessarily provide justification or entitle-**

**ment to an Initial RILO, MEB, or ALC-coded case. For most airmen approaching retirement, the PEBs will pre-**

**sume a member is fit if he or she has been able to do his or her duty satisfactorily in the 12 months before a**

**scheduled retirement. Presumption of fitness applies to non-EAD ARC members only when there is a manda-**

**tory retirement date. This presumption of fitness may be overcome, however, in some instances. ( _See_** **AFI 36-3212, paragraph 3.17.1-3.17.3).**

**MEDICAL EVALUATION BOARD (MEB)**

If the ARC SGP determines an airman may be unfit for military duty at the Initial RILO, an MEB will be directed. (Note:

Does not apply to Not In Line of Duty Conditions.) The MEB membership may choose from the following two actions:

(1) Return to Duty or (2) Referral to the PEB.

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_**Section 19-11 Disability Evaluation System**_

_**Page 3**_

**FITNESS DETERMINATION**

This process only applies to ANG members identified with medically disqualifying non-duty related medical or dental

conditions IAW Medical Standards Directory (MSD) retention standards. Non-duty related is defined as not having oc-

curred or been aggravated by military duty. Medical unit commanders must ensure appropriate personnel are thoroughly

familiar with the procedures enumerated in the Consolidated Program Memorandum published yearly.

An ANG member who is not on a call to active duty for more than 30 days and who is pending separation for impair-

ments unrelated to the member's military status and performance of duty, shall have the opportunity to have his/her

case reviewed by the PEB **solely for a fitness determination** upon the request of the member or when directed by the

Secretary concerned, _i.e._ , Secretary of the Air Force (SAF). These cases are for non-duty related disqualifying conditions after initial RILO. This includes those cases adjudicated as return to duty with periodic review by the component surgeon. The sole standard to be used in making a determination of unfitness due to physical disability shall be unfitness to

perform the duties of the member's office, grade, rank or rating because of disease or injury.

ANG members identified with a questionable or disqualifying medical condition must have an evaluation accomplished

and forwarded to ARC/SG for review. In non-duty related cases, the member is evaluated for fitness only. In these cases,

the member will either be found fit for duty and returned with or without an assignment limitation code; or the member

will be found unfit and processed for separation.

The member may elect to enter DES for a fitness determination. The information is then forwarded to the PEB. The mem-

ber's only contention at the FPEB is that he/she is fit for duty. The FPEB is not authorized to make cross-training or line

of duty determinations.

If the FPEB finds the member fit for duty, the case is then forwarded to NGB/SG for validation. Members found fit for

duty may be retained in a non-deployable position, if one is available. If the FPEB finds the member not fit for duty, the

member will be discharged. Members who have over 15 years of service and are discharged for a non-duty related (fit-

ness) condition, may be eligible for a "gray zone" retirement (like the regular age 60 retirement). This authority is at the SAF's discretion, and those otherwise eligible will have to check with HQ AFPC/DPP to see if it is being offered at any

given point in time. ( _See_ Title 10 United States Code, Section 12731b).

Dual-status members who are medically retired may also be medically retired from their technician position.

_Note: An ANG member with a known medical condition who refuses to comply with a request for medical information or evaluation is considered medically unfit for continued military duty and is referred to their immediate commander for processing under AFI 36-3209._

**PHYSICAL EVALUATION BOARDS (PEBs)**

There are two PEBs; an Informal PEB (IPEB) and a Formal PEB (FPEB) located at JBSA – Randolph, TX. Each PEB is

separate fact-finding body that investigates the nature, origin, degree of impairment, and probable permanence of the

physical or mental defect or condition of any member whose case it evaluates to determine if a member is fit or unfit for

continued military service.

_**Informal Physical Evaluation Board**_

The IPEB reviews appropriate medical and personnel records and related documentation to determine fitness for duty.

Neither the member nor counsel may be present at the informal hearing as it is purely a document review process. A

member may request an FPEB only if the member disagrees with an "unfit" finding of the IPEB. If a member disagrees with a "fit" finding and requests an FPEB hearing, member must submit a brief rebuttal stating reason for disagreement.

This request may be denied. ANG members become eligible for legal counsel upon receipt of IPEB results; however, they

may contact the Air Force Office of Airmen's Counsel discussed in detail below at any stage of the DES process.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter19, MedicalMatters**_

_**Section 19-11 Disability Evaluation System**_

_**Page 4**_

_**Formal Physical Evaluation Board**_

The FPEB consists of two line officers and one physician. When an ANG member is before the FPEB, one of the board

members must also be either a reservist or an ANG member. The member may testify, bring other witnesses, or present

other documentary evidence. The member may appear before the FPEB in person, telephonically, via video teleconfer-

ence, or _in absentia through appointed counsel_. The member is provided military counsel at no cost to the member, or the member may hire civilian counsel at his or her expense. The Office of Airmen's Counsel, discussed in more detail below,

is available to represent active duty, reserve and ANG members following their receipt of IPEB results. An ANG member

who wishes to appear before the FPEB for a non-duty related fitness only determination is responsible for funding his or

her own travel.

**SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL (SAF PC)**

If the member disagrees with the FPEB's decision, the member may appeal to the SAF Personnel Council. The SAF Per-

sonnel Council usually consists of four line officers and one physician. If an appeal is requested, the FPEB will forward

the file to the SAF Personnel Council for review. The SAF Personnel Council's decision is final; however, in cases where

there is new information the member may request a reconsideration of SAF Personnel Council's final decision. The mem-

ber may also pursue an appeal to the Air Force Board for Correction of Military Records (AFBCMR); however, this action

will not delay final processing of the members case based upon the SAF Personnel Council's decision.

_Note: A "return to duty" determination by the MEB, IPEB, FPEB, or SAF Personnel Council does not mean the member is automatically_ _returned to duty. AFRC/SGP must validate and approve the determination prior to the members' actual return to duty._

**DES DOCUMENTATION**

ANG members identified with a questionable or disqualifying medical condition must have an evaluation accomplished

and forwarded to ARC/SGP for review. The information provided for review is listed in the most current Consolidated

Program Memorandum and includes: (1) Civilian and military medical and dental documentation relevant to the submis-

sion. (2) Current letter from the member's private medical provider or dentist. (3) AF Form 469 (4) Narrative Summary

(See Consolidated Program Memorandum for general and mental health summaries); (5) PEB Fact Sheet (Attachment

2a); (6) PEB Election Form (Attachment 2b); (7) AF Form 469 (Member Copy). (8) Unit commander's Memorandum

(Attachment 2c), which is forwarded to the member's with AF Form 469 (unit commander copy) attached; (9) Member

Utilization Questionnaire from local MPF (Attachment 5); (10) IRILO Coversheet (Attachment 6); (11) Copy of member

memorandum (Attachment 1); (12) Postal Service Form 3811 (original and appropriate copies) when member was not

present at the time of the action and notification was made by mail and (13) Unit commander's endorsement.

**POTENTIAL DES OUTCOMES**

For duty-related cases, the member will undergo VA medical examinations in the form of the Compensation and Pension

(C&P) evaluation. Once the referring provider, or reviewing provider, receives the C&P exam results he/she will (1) review the C&P report; (2) verify the NARSUM covers the full spectrum of potentially unfitting conditions; and (3)

addend/update the NARSUM appropriately. While the member will be assigned a disability rating from the VASRD that

determines their overall level of eligibility for compensation from the Department of Veterans Affairs (DVA), the PEB

will only adopt and assign ratings for the conditions it finds are unfitting for military service.

If the member is assigned a 30% or higher disability rating, the member may qualify for early or temporary retirement,

regardless of length of service. If the member receives less than a 30% disability rating, the member will receive a dis-

charge with severance pay (DWSP) unless they have earned a retirement for years of service (AD or have 20-year letter).

Severance pay is calculated by multiplying the member's base pay by two and then again by the number of years of serv-

ice (2 x Base Pay x Number of years of service). The maximum number of years of service used for this calculation is 19

_**Air National Guard Commander's Legal Deskbook**_

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_**Page 5**_

and the minimum number is three (or six if the disability was incurred in combat). Disability Separation pay is non-

taxable; however, the Defense Finance and Accounting Service (DFAS) may withhold taxes which can be recovered from

the IRS once the disability is rated by the Veteran's Administration (VA).

There is a misconception members cannot receive both severance pay and monthly VA benefits. It is possible to receive

both. Benefits paid by the VA may be offset by the percentage of the condition found unfitting by the Air Force. (For ex-

ample, say that the AF medically discharges someone for a back condition and rates them at 10%. However, the VA has

rated the same individual 10% for the back condition, as well as 10% for a hearing condition and 10% for a knee condi-

tion. In this case, the member will receive severance pay from the AF based upon the back condition, and the VA will

reduce/offset the benefit it pays the member by 10% (the 10% rated by the AF)).

_NOTE: As a result of the Wounded Warrior Act of 2008, severance pay is not offset if the disability was incurred in combat._

**OFFICE OF AIRMEN'S COUNSEL (OAC)**

The Office of Airmen's Counsel is comprised of active duty, ARC, and civilian JAGs and paralegals. The OAC's mission is

to represent airmen throughout Disability Evaluation System processing. The OAC staff can answer questions concern-

ing the member's legal rights during the disability evaluation process. The OAC staff reports directly to an independent

chain of command, which allows them to zealously advocate for the interests of the individual airmen undergoing DES

processing, within ethical boundaries.

An airman who is pending a Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) may contact the OAC

by telephone or email for consultation concerning the member's rights and elections at any stage of the process and

should do so as early as possible.

At initial stages, OAC staff can provide general information to assist airmen in understanding their rights and responsi-

bilities. As airmen progress through the system, assigned Disability Counsel can provide more specific advice aimed at

developing strategies to reach desired outcomes. Specifically, Disability Counsel provide representation at the Formal

Physical Evaluation Board (FPEB), assistance with appeal of FPEB results, and prepare Requests for VA Reconsideration

of ratings for conditions determined unfitting by the Air Force.

To contact the OAC telephonically, call DSN 665-0739; commercial 210-565-5831; toll free 1-855-MEB-JAGS (632-

5247). The OAC email address is: afloaja.disabilitycounsel@us.af.mil.

_**KWIK-NOTE: Lines of duty determinations are extremely important to ANG members who go through this process. ANG**_

_**members could be denied benefits if a line of duty determination is warranted and not accomplished. Members who develop a**_

_**medical condition rendering their fitness for worldwide duty questionable should contact their Staff Judge Advocates' offices**_

_**and/or the OAC office immediately.**_

**RELATED TOPICS:**

**SECTION**

Line Of Duty Determinations

1-19

Medical Evaluation (Profile Change)

19-12

_**Air National Guard Commander's Legal Deskbook**_

695

_**Chapter 19, Medical Matters**_

_**Section 19-12 Medical Evaluation (Profile Change)**_

_**Page 1**_

**Medical Evaluation (Profile Change)**

**Updated by Major Sonya Batchelor, October 2008**

**AUTHORITY:** AFI 48-123, _Medical Examination and Standards_ , Vols 1-4 (5 Jun 06); AFI 10-250, _Individual Medical Readiness_ (17 May 07); HQ NGB/SGP SG Log Letter 06-030, _Consolidated Memorandum_ (9 Nov 06); NGB/SG Log Letter 07-010,

_Medical Evaluation Boards (MEB) and 4T Profiles_ (30 Apr 07); NGB/SG Log Letter 07-013, _4T Profiles for Noncompliance_ (17

May 07)

**IDENTIFICATION AND PROCESSING OF MEMBERS WITH MEDICAL PROBLEMS**

**** The unit commander, unit medical personnel and local supervisor are responsible for prompt identification of members whose physical qualification for continued military service is in doubt, and timely referral of those members for disability processing. Identification of questionably qualified members is accomplished by means of an AF Form 422 containing a

profile of "4" and by referral to a Medical Evaluation Board (MEB) for Title 10 ANG members, AGRs, and members with

an approved line-or-duty medical condition, and by referral for a Worldwide Duty Medical Evaluation for all other mem-

bers. The purpose of the profile change is to inform the personnel system of the member's unavailability for assignment

and other personnel actions.

**ACTION ON PHYSICAL PROFILE**

A physical profile is reviewed, validated, or revised when the following events occur:

1. A standard or special purpose physical examination is accomplished;

2. The member returns to normal duties after any illness or injury that significantly affected duty performance or qualifi-

cation for worldwide duty; or

3. A member is selected for remote, isolated, or combat zone assignment.

Commanders, Social Actions, and the Staff Judge Advocate should be notified of personnel identified as being in drug ex-

perimenter, user or addict status, for appropriate action.

_**KWIK-NOTE: When you become aware of a medical condition which may render a member unqualified for deployment or**_

_**continued military service, refer the member to the medical squadron for medical evaluation and profile change.**_

**RELATED TOPICS:**

**SECTION**

Worldwide Duty Medical Evaluations

19-11

_**Air National Guard Commander's Legal Deskbook**_

696

_**Chapter 19, Medical Matters**_

_**Section 19-13 Mental Health Evaluations**_

_**Page 1**_

**Mental Health Evaluations**

**Updated by Lieutenant Colonel Robert R. Statchen, June 2017**

**AUTHORITY:** DoDI 6490.04, _Mental Health Evaluations of Members of the Military Services_ (4 Mar 13); DODD 7050.06, _Military Whistleblower Protection_ (17 Apr 15).) AFI 44-172, _Mental Health_ (13 Nov 15). _See also_ , Col Robin Brodrick, _The Evolu-tion of Command-Directed Health Evaluations in the Air Force_ , The Air Force Medical Law Quarterly, Volume 23, Spring 2015. 

## INTRODUCTION

This topic provides guidance to assist commanders who have reason to refer one of their members (AGR or traditional

Guard member) for a non-emergency mental health evaluation or Command Directed Evaluation (CDE) on an outpa-

tient basis. As explained below, it reflects several recent changes to the law in this area. CDEs may be for a variety of concerns, including:

1. fitness for duty,

2. occupational requirements,

3. safety issues,

4. significant changes in performance, or

5. behavior changes that may be attributable to possible mental status changes. AFI 44-172, paragraph 6.9.2.

However, the procedural requirements for CDEs do NOT apply to the following situations:

1. voluntary self-referrals;

2. pre-and post-deployment mental health assessments for members deployed in connection with contingency operations

in accordance with DoDI 6490.12;

3. responsibility and competency inquiries under Rule for Courts Martial 706;

4. interviews under Family Advocacy Program guidance;

5. interviews under drug and alcohol abuse rehabilitation program guidance;

6. clinical referrals requested by other healthcare providers as a matter of clinical judgment with patient consent to

evaluation;

7. evaluations under authorized law enforcement or corrections procedures; or

8. evaluations for special duties or occupational classifications or other evaluations required by DoD issuance or service

regulations that are not subject to commander's discretion. DoDI 6490.04(2)(a)

The regulations also address emergency CDE referrals. AFI 44-172, paragraph 6.9.9. A commander or supervisor WILL

refer a service member for an emergency CDE as soon as is practicable whenever:

1. A service member, by actions or words, such as actual, attempted, or threatened violence, intends or is likely to cause

serious injury to him or herself or others.

2. When the facts and circumstances indicate that the service member's intent to cause such injury is likely.

3. When the commanding officer believes that the service member may be suffering from a severe mental disorder. DoDI

6490.02(3)(d).

Since non-emergency outpatient referrals are by far the more common of the two that will be encountered in the ANG,

the guidance in this topic covers that type of referral. You should consult your you medical group commander, a mental

health provider (MHP) and Staff Judge Advocate before deciding to initiate a CDE.

**RECENT REVISION OF REGULATIONS AND LAW**

The 1993 National Defense Authorization Act directed the Secretary of Defense to revise regulations to incorporate cer-

tain procedures when military members are directed to undergo a CDE. DoD subsequently issued Directive 6490.1,

which was implemented by the Air Force in AFI 44-109, applicable to the ANG. These regulations and directives in-

cluded several due process requirements for members as reflected in the revised notification letter.

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_**Page 2**_

The 2012 National Defense Authorization Act repealed many of these procedural requirements. The main reason for the

repeal was to dispel the stigma associated with seeking mental health care and to reinforce that mental health care

should be viewed, when possible, the same as any other healthcare service. As explained below, the repeal has signifi-

cantly streamlined the requirements for CDEs.

AFI 44-172 states that it specifically applies to members of the ANG when activated under Title 10 active duty in the AN-

GUS. The instruction goes on to state, "[h]owever, given the mission/nature of weekend trainings for unit-based person-

nel ( _i.e._ , Unit Training Assemblies or UTAs) and the limited privileges, it does not apply to such individuals during unit drill weekends when not on active duty orders." This has been interpreted to mean that when a traditional Guardsman

is referred for a CDE, they should be put on active duty orders (Title 32 or Title 10).

**REFERRAL PROCESS**

Commanders and supervisors are specifically authorized to make informal, non-mandatory recommendations for service

members when circumstances do not require a CDE based on safety or mission concerns. AFI 44-172, paragraph 6.9.1.

It is usually advisable to first assess whether the service member would voluntarily submit to a CDE.

When commanders believe one of their members should undergo a CDE , he or she will:

1. Advise the service member that there is no stigma associated with obtaining mental health services.

2. Refer the service member to an MHP, providing both the name and contact information. DoDI 6490.04, Enclosure 3,

paragraph 2(b); AFI 44-172, paragraph 6.9.4.

This MHP will usually be located at the active duty facility nearest to your unit. Coordinate with your clinic commander

on a proper MHP. The clinic commander will likely call the MHP to coordinate on scheduling the meeting and to give the

MHP a "heads-up" that it is coming.

Practical Tip: If you anticipate the member will not attend the session, you should put the CDE order in writing (one

paragraph) with an acknowledgment. This can be used for potential future disciplinary action. Remember, as with other

situations discussed in other topics in this Deskbook, the member's failure to acknowledge receipt of the notice does not

invalidate your notice or the effect of your order, but such failure should not be a basis for separate adverse action

against the member. Simply note on your copy of the notice that the member failed to acknowledge receipt.

If the member does not appear for the CDE, treat it as you would any other failure to report pursuant to a lawful order

(for example: with urinalysis testing). The failure to report is a failure to obey a lawful order and independently subjects the member to adverse action, including nonjudicial punishment; or to administrative discharge based on misconduct,

because failure to obey a lawful order is a "serious offense" under AFI 36-3209.

**ACTION UPON RESULTS OF ACTION CDE**

Remember, just because the MHP initially determined you had a basis to refer the member for an MHE that does not nec-

essarily mean the MHP will determine after the CDE the member is not fit for duty. The MHP should, however, provide a

written report of the CDE, including any courses of action or treatment the member should follow.

If the MHP determines the member is fit for duty, your quality force management actions are limited. As commander,

you still, however, have the inherent discretion to change a duty assignment or work station, since you can do that with-

out an CDE.

CDEs that result in findings by the MHP of the member's unfitness for duty may provide a basis for administrative dis-

charge processing, a medical evaluation board or profile change, but should not be basis for punitive action against the

member.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 19, Medical Matters**_

_**Section 19-13 Mental Health Evaluations**_

_**Page 3**_

**CONCLUSION**

This area is sensitive and poses for commander's issues of physician/patient privilege, adverse action alternatives, and

proper use of quality force management actions and a medical diagnostic tool. As such, commanders should consult, ini-

tially and throughout the MHE process, their Staff Judge Advocate and clinic commander.

_**KWIK-NOTE: Commanders should never use MHEs as reprisals against their members and should closely consult their SJA**_

_**and clinic commander throughout the MHE process.**_

**RELATED TOPICS:**

**SECTION**

Administrative Discharge of Enlisted Members

24-3

Administrative Discharge of Officers

24-4

Medical Evaluation Boards

19-12

Medical Evaluation (Profile Change)

19-11

Quality Force Management Actions

24-12

_**Air National Guard Commander's Legal Deskbook**_

699

_**Chapter 19, Medical Matters**_

_**Section 19-14 National Marrow Donor Program**_

_**Page 1**_

**National Marrow Donor Program __**

**Updated by Major Sonya Batchelor, October 2008**

**AUTHORITY:** Assistant Secretary of Defense (ASECDEF) Memorandum: DoD National Marrow Donor Program (18

June 1991); ASECDEF Memorandum: Policy on Implementation and Administration of DoD Marrow Donor Program

(DMDP), The C.W. "Bill" Young Marrow Donor Recruitment and Research Program (18 June 1991); ASECDEF Memoran-

dum: Amendment to the Policy of Implementation and Administration of DoD Marrow Donor Program (DMDP), The

C.W. "Bill" Young Donor Recruitment and Research Program (19 August 1993). 

## INTRODUCTION

**** Established by Congress on 25 May 1990, Public Law 101-302 directed the DoD to recruit and HLA type DoD volunteers

as part of the overall national effort. Specifically the law required expansion of the Navy medical research program to im-

prove the technology of identifying donors; provide support to increase the number of civilian donors with an emphasis

on improving American minority donor recruitment; and support programs tied to the National Marrow Donor Program

to improve military contingency and Homeland Security capabilities to respond to both ionizing radiation and chemical-

induced (mustard containing chemical warfare agents) marrow damage.

On behalf of the Department of Defense, the Navy operates and manages the Marrow Donor Center for the Department

of Defense (MDCDD) located at Nicholson Lane in Kensington, MD. The donor center is commonly referred to as the C.

W. Bill Young Marrow Donor Recruitment and Research Program (BYMDC). The mission of BYMDC is to "recruit and

enroll eligible Department of Defense (DoD) members, active duty personnel and their dependents, reservist, Coast

Guard, National Guard and DoD civilian employees into the National Marrow Donor Program Registry; support the DoD

contingency requirement for unrelated stem cell donations and tissue typed matched blood platelets; support and contrib-

ute to ongoing research in tissue typing techniques and unrelated marrow transplantation efficacy (especially as it relates

to donors; and to provide outstanding management services to those members who are selected as potential marrow do-

nors." Interested persons may obtain further information by calling The C.W. "Bill" Young Marrow Donor Center at 1-800-MARROW-3 (1-800-627-7693) or by visiting the Center's website at http://www.dodmarrow.com.

This program originally applied to active duty members, reserves on active duty status for more than 60 days ( _e.g._ , AGRs) and all DoD civilian employees ( _e.g._ , federal technicians). By the DoD policy amendment on 19 August 1993, it was made applicable to the National Guard.

**COMMANDER DISCRETION**

It is entirely within a commander's discretion to allow the program's recruiter to come to the base and allow the unit to

participate in the program. "Interference with mission accomplishment" is a valid reason for commanders to elect not to participate. In deciding whether to participate, commanders should coordinate with the clinic commander.

**PARTICIPATION IN THE PROGRAM**

Participation of unit members is voluntary and they can elect to participate even if you do not sponsor a unit drive. If you decide to sponsor a unit drive only military members can participate in the unit drive, although spouses and other family

members can participate in drives at other locations. Everyone participating in the program, _i.e._ , the clinic and potential donors should do so in a duty status.

**EDUCATIONAL PHASE**

If you approve of unit participation, designate a member of the unit (POC) to contact the center and obtain the educa-

tional materials. You may then wish to appoint a PAT to determine how best to disseminate this information to members

_**Air National Guard Commander's Legal Deskbook**_

700

_**Chapter 19, Medical Matters**_

_**Section 19-14 National Marrow Donor Program**_

_**Page 2**_

of the unit, such as through an article in your base newspaper. Each squadron may designate a representative to make

the information available to members of that squadron and record squadron members who are interested in volunteer-

ing. This process may take up to three months (education and advance "sign-up").

**COLLECTION PHASE**

Once a reasonable amount of time has passed to disseminate and receive back requests to volunteer, the Wing's POC

should speak to the center recruiter and arrange a mutually convenient Sunday UTA for the program representative to

come to the base with the necessary materials to extract the samples.

All materials including syringes, vials, labeling and other costs for collection and shipment of samples are borne by the

program, but the unit's clinic personnel will draw the blood from the volunteers. To minimize delay on that Sunday, you

should advise the program representative to come to the base on Saturday where in a large room on base, the program's

representative can pass out the informed consent forms, go over them and answer any questions that any volunteer has

regarding the forms or the program in general, and have all the forms completed and signed. This should take approxi-

mately one hour. Before the group departs, it can be advised to appear at the clinic at a certain time on Sunday.

Samples must be collected on a Sunday of a UTA weekend and shipped Sunday night to arrive within 24 hours of collec-

tion to be properly tested. The program handles all costs of shipping. The unit's only obligation is time and labor in ex-

tracting the samples. Two to three hundred samples can be collected at any one time based upon the lab's capability. If

the number of unit volunteers exceeds that, the program will schedule another Sunday for the balance to be collected.

Review of the informed consent form and its completion takes the majority of the time involved in collection of the sam-

ples per donor. The program's experience is that if more clinic personnel extract samples, things go faster. Collection of

300 samples could take most of the day with four to five clinic members extracting samples. Assuming there are five peo-

ple taking the samples, you can designate 30 people every half hour to come to the clinic to minimize the delay waiting

in line and time away from their other duties.

As ANG clinics usually "train" on Sundays and perform physicals on Saturdays, the actual day of collection would need coordination with the clinic commander's training schedule. The program's recruiter will be there to supervise go over

with clinic personnel the labeling and collection procedures.

**SJA COORDINATION**

Participation in this program is worthwhile but presents issues of potential liability and duty status, and state law issues of usage of the base, all of which are resolvable if commanders involve their SJA throughout the process of the unit's participation in the program.

_****_**CONCLUSION __**

It must be reiterated that participation in the program is voluntary. That means that members who volunteer during the

educational phase may decide later not to participate. Samples are tested and later cross-checked and kept in a national

registry for a future match. "Voluntary" also means if the "volunteer" is notified that they are a suitable donor, that individual can decline to participate.

_**KWIK-NOTE: Participation in the National Marrow Donor Program is considered a personal matter and strictly voluntary.**_

**RELATED TOPICS:**

**SECTION**

Liability of National Guard Medical Personnel

18-8

Status of National Guard Members

11-7

_**Air National Guard Commander's Legal Deskbook**_

701

_**Chapter 19, Medical Matters**_

_**Section 19-15 Anthrax**_

_**Page 1**_

**Anthrax**

**Updated by Major Sonya Batchelor, October 2008**

**AUTHORITY:** DoD Directive 6205.3, _Immunization Program for Biological Warfare Defense_ (26 Nov 93), DoD Directive 6205.02E, _Policy and Program for Immunizations to Protect the Health of Service Members and Military Beneficiaries_ (19 Sep 06); AFJI 48-110, _Immunizations and Chemoprophylaxis_ (29 Sep 06); AFI 48-123, _Medical Examination and Standards,_ Vol 2 (5 Jun 06); Memorandum, Department of the Air Force Air National Guard, _Implementation of the Anthrax Vaccine Immunization Program_ (6 Mar 07); Memorandum, Deputy Secretary of Defense, _Anthrax Vaccine Immunization Program_ (12 Oct 2006); Memorandum, Under Secretary of Defense, _Implementation of the Anthrax Immunization Program (AVIP)_ (6 Dec 06); Memorandum, Headquarters US Air Force, _Implementation of Mandatory Anthrax Vaccine Immunization Program (AVIP)_ (16 Feb 07); Memorandum, Department of their Force, _Expanded Anthrax Vaccine Immunization Program (AVIP) Guidance_ (4 Apr 07); Memorandum, Under Secretary of Defense, _Change in Policy for Pre-Deployment Administration of Anthrax and Smallpox Vaccines_ (10 Sep 2007); Department of the Air Force, _Plan for Implementing the Anthrax Vaccine Immunization Program (AVIP)_ (18 Jan 07); Biological Products; Bacterial Vaccines and Toxoids; Implementation of Efficacy Review; Anthrax Vaccine Adsorbed; Final

Order, 70 Fed. Reg. 75180 (19 Dec 05); Authorization of Emergency Use of Anthrax Vaccine Adsorbed for Prevention of

Inhalation Anthrax by Individuals at Heightened Risk of Exposure Due to Attack with Anthrax; Extension; Availability,

70 Fed. Reg. 44657 (3 Aug 05); All States (Log Number P00-0020) _National Guard Immunization Refusal Policy_ (18 May 00).

See also AFI 36-3209, _Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members_ (14 Apr 05). 

## INTRODUCTION

**** The biological warfare (BW) threat to United States forces is real. At least seven countries, including several hostile to Western democracies now possess or are pursuing offensive BW capabilities. Anthrax is within the reach of not only

rogue nations, but also transnational terrorist groups. Anthrax tops the DoD's biological threat list. Anthrax spores are

highly lethal. Small amounts can produce large numbers of casualties. Anthrax is the easiest biological agent to produce

and weaponize. Production of anthrax as a biological weapon does not require special equipment or advanced technology.

It is extremely stable and can be stored almost indefinitely as a dry powder. It can be loaded in advance, as a freeze-dried powder, in munitions or disseminated as an aerosol with crude sprayers. While protective clothing and gas masks provide a good front-line defense, their effective use requires rapid and early detection of the agent. They may not detect an

agent in time to warn personnel to don protective gear before exposure. Immunization consists of three injections given

two weeks apart, followed by three injections given at the 6, 12, and 18 month point; thereafter booster shots are re-

quired ever year.

On 27 October 2004, the United States District Court for the District of Columbia issued an injunction against the ongo-

ing operation of the Department of Defense Anthrax Vaccine Immunization Program (AVIP) concluding that the Food

and Drug Administration (FDA) was procedurally required to solicit public comment before concluding the anthrax vac-

cine was safe. The Court's decision was not a comment on the safety of the vaccine. Due to the potential for a military

emergency involving an attack on U.S. military forces with anthrax, the FDA issued an Emergency Use Authorization

(EUA) on 27 Jan 05. On 6 Apr 05, the United States District Court for the District of Columbia modified the injunction

against the anthrax vaccination, permitting limited resumption of the AVIP. On 25 Apr 05, the Deputy Secretary of De-

fense issued a memorandum directing the military services to resume the AVIP under the conditions set forth by the

EUA and court order. On 15 Dec 05, the FDA issued a Final Rule & Order on the license status of the anthrax vaccine.

After reviewing extensive scientific evidence and carefully considering comments from the public, the FDA again deter-

mined that the anthrax vaccine could be licensed for the prevention of anthrax infection, regardless of exposure route.

On 16 Feb 07 and 6 Mar 07, respectively, the Air Force and Air National Guard issued plans for mandatory implementa-

tion of AVIP. Effective 29 Mar 07, anthrax vaccination became mandatory for all Guard members serving in the U.S. Cen-

tral Command (USCENTCOM) Area of Responsibility (AOR) or the Korean Peninsula for 15 or more consecutive days.

The most current guidance on this issue can be found at www.anthrax.mil or toll-free information at 1-877-GET-VACC.

_**Air National Guard Commander's Legal Deskbook**_

702

_**Chapter 19, Medical Matters**_

_**Section 19-15 Anthrax**_

_**Page 2**_

**MEDICAL ISSUES**

Not all personnel are required to undergo the anthrax vaccine. Members with temporary health conditions, disease or

pregnancy may defer vaccination until the series may be safely taken. AFI 48-123 contains detailed guidance on these is-

sues. The State Surgeon General and the Wing medical community can also provide guidance. Personnel who are perma-

nently and medically disqualified from taking the series are not deployable and may be medically disqualified from fur-

ther military service.

**DISCIPLINE AND SEPARATION ISSUES**

Ordering members to take the anthrax vaccine is a lawful order. Members who refuse should be counseled by medical

personnel to ensure that they understand the importance and safety of the immunization. After such counseling, if the

member persists in refusing the vaccine, the commander may give the member a direct order to submit to the immuniza-

tion. If the member fails to obey the order, commanders have the full range of options, from taking administrative action

to taking punitive action under the state military code. Commanders should evaluate options on a case-by-case basis and

should evaluate factors such as the nature of the offense, the existence of other charges, mitigating or extenuating circum-

stances and the character and military service record of the member involved.

Officers and enlisted members who refuse the vaccinations for other than authorized medical reasons may be separated,

either voluntarily or involuntarily, in accordance with AFI 36-3209. Officers who have met all obligations may retire in

accordance with AFI 36-3209. Officers requesting resignation may be separated pursuant to Section 2E, paragraphs

2.46.1.7 and/or 2.46.1.8 of AFI 36-3209. An enlisted member requesting resignation may be separated pursuant to Sec-

tion 3C, paragraph 3.12.8 of AFI 36-3209. Except in unusual circumstances, the type of separation in these cases will be

Honorable. Ordinarily, the state's Adjutant General may approve such separations; however, approval for separation of

first term airmen must be forwarded to the National Guard Bureau for approval.

Members who do not choose to resign or retire may be separated involuntarily under AFI 36-3209. Refusal to obey a law-

ful order is misconduct which may form the basis for disciplinary action. Officers guilty of misconduct are separated un-

der Section 2D, paragraph 2.29.4 for serious or recurring misconduct. Enlisted personnel are involuntarily separated pur-

suant to Section 3D, paragraph 3.21 for misconduct. Typically, separation under these provisions will warrant a General

(under honorable conditions) Discharge. Members who attempt to publicize their efforts, and especially those who en-

courage other members to join in an organized resistance to a command authority's immunization plan may be guilty of

more serious misconduct and warrant an Under Other Than Honorable Conditions Discharge (UOTHC). Those dis-

charged for failure to take the vaccine may have their discharge papers coded and may be denied permission to re-enlist.

**CONCLUSION**

The anthrax train has left the station and will not be recalled. Military members who are not on board should not expect

relief from Congress. The executive branch has determined the vaccine program to be mission essential and the legisla-

tive branch now concurs. The judicial branch has determined military personnel matters to be non-justiciable and will

not entertain lawsuits filed by disgruntled military members. _****_ Individual counseling and command leadership must be employed to persuade all unit "stakeholders" that the anthrax vaccine is a well-conceived force protection program and

will be a permanent requirement of the Air National Guard force.

_**KWIK-NOTE: Commanders should consult the SJA and clinic commander to deal with anthrax immunization resistance.**_

**RELATED TOPICS:**

**SECTION**

Administrative Discharge of Enlisted Members

24-3

Administrative Discharge of Officers

24-4

Medical Evaluation (Profile Change)

19-11

Medical Evaluation Boards

19-12

_**Air National Guard Commander's Legal Deskbook**_

703

_**Chapter 19, Medical Matters**_

_**Section 19-16 Suicide Prevention**_

_**Page 1**_

**Suicide Prevention**

**Updated by Lieutenant Colonel David Gorman, October 2013**

**AUTHORITY:** AFI 90-505, _Suicide Prevention Program_ (10 Aug 12); AFI 44-109, _Mental Health, Confidentiality and Military_ _Law_ (1 March 2000, certified current 20 September 2010); AFI 90-501, _Community Action Information Board and Integrated_ _Delivery System_ (31 August 2006); AFPD 90-5, _Community Action and Information Board_ (15 Oct 2002). 

## INTRODUCTION

**** In recent years, suicide has become the second leading causes of death among United States Air Force personnel. In

2001, 35 Air Force members committed suicide. Suicide accounted for 13 percent of all ANG deaths between 1990 and

1997. AFI 90-505 applies to the ANG as well as active duty and Reserve. In 2007 the ANG, as a supplement to AFI 90-

505, instituted the Wingman program to provide yet another resource for training and assistance to ANG members who

ether know someone they suspect of wanting to commit suicide, are thinking of committing suicide, or who just want to

learn more about suicide prevention. While not incorporated into an ANGI, the Wingman program has been officially en-

dorsed by DoD and can be accessed through Air Force Portal among other web-based sites.

AFI 90-505 focuses on education, identification and referral. The installation Community Action Information Board

(CIAB) ensures that training and services are provided through an "Integrated Delivery System" (IDS). A community-

based approach is essential to reducing suicide and maintaining a fit and ready force. Effective suicide prevention also

entails educating individuals about healthy/adaptive coping strategies, building confidence, and instilling a belief that

members are resilient and able to effectively overcome future life problems.

The person most responsible for monitoring distress and individual effectiveness is the individual airman. However, just

as important, an airman's wingmen are usually in the best position to observe them on a daily basis and understand

when subtle, or not so subtle, changes in attitudes or behavior should cause concern. We must continue to emphasize to

our airmen that the buddy system regarding mental well-being is just as important as the buddy system in combat opera-

tions or medical care.

**TRAINING**

AFI 90-505 requires that all airmen receive Total Force Awareness Training (TFAT) annually. TFAT is computer based

training. However, AFI 90-505 encourages commanders to hold smaller group non-computer based trainings on suicide

prevention. Commanders and supervisors must receive a one-time Frontline Supervisors Training (FST), within 365 days

of being appointed a supervisor for traditional ANG supervisors or 90 days for ARG ANG supervisors. Suicide risk fac-

tors identified in AFI 90-505 include: relationship difficulties, substance abuse, legal, financial, medical, mental health

and occupational problems, along with depression, social isolation, and previous suicide threats/gestures.

**METRICS**

Unit commanders must ensure all personnel complete annual mandatory suicide prevention awareness training.

**Investigative Interview Policy (Hand-off Policy)**

Airmen facing criminal or administrative action are at increased risk for suicide. They can easily feel isolated from family, friends, and other social supports when needing them most. Following an investigative interview, the AF investigators

( _i.e._ , AFOSI, IG, SF, and MEO) are required to hand-off the accused directly to the member's commander or first sergeant through person-to-person documented contact. For ARC units, when the commander or first sergeant is a traditional

Guardsman and unable to be contacted, the senior ranking unit member (E-7 or higher) on active status will receive

person-to-person contact and in turn make notifications to the first sergeant and commander. The investigator will

_**Air National Guard Commander's Legal Deskbook**_

704

_**Chapter 19, Medical Matters**_

_**Section 19-16 Suicide Prevention**_

_**Page 2**_

notify the unit representative that the individual was interviewed and is under investigation. When an investigating

agent believes the member may present a risk of suicide, he/she shall communicate that concern to the member's com-

mander or first sergeant, who will then consider making a referral for a Mental Health evaluation and possible placement

in the Limited Privilege Suicide Prevention (LPSP) program. The commander or first sergeant is responsible for determin-

ing the member's emotional state and contacting a mental health provider if they suspect a risk of suicide. The installa-

tion staff judge advocate is responsible for the implementation of the hand-off policy.

**CONCLUSION**

The increased operations tempo and frequent deployments continue to fuel suicide among military personnel and their

families. Supervisors and commanders must ensure a healthy, protective environment with proper emphasis on identify-

ing risk factors and intervention as appropriate. It is up to supervisors and commanders to emphasize the Wingman cul-

ture of looking after each other and identifying those who may be at risk of suicide. Mental health professionals fre-

quently observe, "Suicide is a permanent solution to a temporary problem." Compassion and command responsibility

demand that we take extra care to protect our people at risk for suicide.

_**KWIK-NOTE: Commanders should be especially alert upon learning a member is having family problems. For Reserve Com-**_

_**ponent personnel, lengthy deployments may be especially stressful.**_

**RELATED TOPICS:**

**SECTION**

Mental Health Evaluations

19-13

_**Air National Guard Commander's Legal Deskbook**_

705

_**Chapter 19, Medical Matters**_

_**Section 19-17 AF Medical Service's Prevention Into Practice Initiative**_

_**Page 1**_

**AF Medical Service's Prevention Into Practice Initiative**

**Updated by Major Sonya Batchelor, October 2008**

**AUTHORITY:** AFI 44-102, _Community Health Management_ (1 May 06); AFPD 44-1, _Medical Operations_ (1 Sep 99); and Air Force Pamphlet 44-155, _Implementing Put Prevention Into Practice_ (1 Feb 99). 

## INTRODUCTION

**** Military medicine has adopted a strategic plan for the delivery of medical services to the military member and his/her dependents. This section does not address Tricare or benefits accorded the retired community. The new strategy puts emphasis on preventive medicine as proposed by the U.S. Public Health Service's Office of Disease Prevention and Health

Promotion. Its purpose is to enhance the delivery of preventive care in primary practice and, by early identification of

health problems, avoid the costs associated with aggravated illness and disease that might have been avoided by early de-

tection and remedy. Understanding this approach will be useful to Reserve Component members on extended active duty

who have dependent family members entitled to active duty military healthcare.

**PUTTING PREVENTION INTO PRACTICE**

The active duty military medical service has totally revamped its procedures to achieve its prevention goal. Except for

acute care/emergency cases all patients will be seen by a primary care physician. In treating the problem complained of -

for instance, a cold - the physician will do an assessment of many factors known to be related to health. These factors in-

clude family history for certain disease, smoking, obesity, exercise, allergies, immunizations, etc. Primary care doctors

will alert the patient to preventive medicine techniques and specific suggestions to create "wellness." Patients in need of

specialists will be referred consistent with recognized medical practice, but all military physicians will encourage the pa-

tient to adopt healthy habits to achieve that state of wellness which will reduce need for future physician consultation.

_**KWIK-NOTE: Military medicine has adopted the same approach used by HMOs. Cost reduction is a major issue; wellness is**_

_**seen as the best means to achieve cost savings. Understanding this can ease the anxiety members and dependents might expe-**_

_**rience when using military medical facilities.**_

**RELATED TOPICS:**

**SECTION**

Medical And Dental Care To Persons Authorized

19-10

_**Air National Guard Commander's Legal Deskbook**_

706

**Chapter 20, Mobilization Matters**

**Table of Contents**

**Section**

20 - 1 Table of Contents

20 - 2 Mobilization of Air National Guard (Federal and State)

20 - 3 Personal Affairs Briefing

20 - 4 Pre-Mobilization Legal Counseling

20 - 5 Servicemembers' Civil Relief Act (Federal and State)

20 - 6 Stop-Loss

707

_**Chapter 20, Mobilization Matters**_

_**Section 20-2 Mobilization of Air National Guard (Federal and State)**_

_**Page 1**_

**Mobilization of Air National Guard (Federal and State)**

**Updated by Lieutenant Colonel Sue Ellen Schuerman, April 2015**

**AUTHORITY** : 10 U.S.C. 12301, 12302, 12304; 32 C.F.R 44, 215; AFI 10-402, _Mobilization Planning_ (1 May 12); AFH 10-416, _USAF Personnel Readiness and Mobilization Handbook_ (22 Dec 94); DoDD 1235.10, _Activation, Mobilization, and Demobilization of the Ready Reserve_ (26 Nov 08, IC 1, 21 Sep 11); DoDI 1235.12, _Accessing the Reserve Components_ (4 Feb 10, IC 1, 4

Apr 12); _see also_ 10 U.S.C. 331, 332, 333; _Joint Travel Regulations_ (JTR, 1 Oct 14); applicable state law.

**BY THE PRESIDENT**

The President may order or call the National Guard into federal service based upon constitutional or statutory authority.

Mobilization encompasses all activities necessary for the orderly transition of forces from reserve category to active duty

for war, emergency or operational purposes. Mobilization may also cover operational missions of the active forces. Mobili-

zation reporting may be required within 24 hours. The mobilization chain of command begins with the President who

informs the Secretary of Defense, who in turn contacts the Secretary of the respective Services. The Chief of Staff, Dep-

uty Chief of Staff for Operations, etc., would then notify the National Guard Bureau who would contact the governors

and state Adjutants General.

**MOBILIZATION PREPARATION**

Commanders are required to continually screen members to ensure their qualification for mobilization. Effective mobili-

zation requires the identification of all persons required to assist in the mobilization process, correct identification of personnel to UTCs, currency in training requirements and correctly updated medical classifications. Annual training require-

ments for mobilization enable the member to plan effectively for mobilizations. Such auxiliary training should include

training on the necessity for wills and powers of attorney, benefits under the Servicemembers Civil Relief Act (SCRA),

protections under the Uniformed Services Employment and Reemployment Rights Act (USERRA), benefits accruing un-

der mobilization and the applicability of the Uniform Code of Military Justice to those activated members. Once the unit

has been alerted a mobilization order may be forthcoming, persons identified to assist in mobilization processing should

be notified.

**MOBILIZATION ORDERS**

The President has often ordered the National Guard to active duty for operational purposes. Section 12304 of Title 10,

United States Code, authorizes the President to order any unit of the National Guard to active duty for not more than

365 days. Under this authority, also known as Presidential Reserve Call-up or PRC, units of the National Guard are or-

dered into Federal service. Individuals not associated with a unit may also be called to active duty under this section.

Under the authority of 10 U.S.C. 12301(a) (full mobilization), in time of war or national emergency declared by Con-

gress, the Secretary of any service may order any unit of a reserve component to active duty for the duration of the exi-

gency, and for six months thereafter. With the consent of the governor, the Secretary may also order any unit or reservist

not assigned to a unit to active duty for a 15-day period at any time. No congressional approval is required. A governor

may not withhold consent based upon objections to training location.

Under the authority of 10 U.S.C. 12302 (partial mobilization), the President, during a time of national emergency or

when otherwise authorized by law, may order any unit or member not assigned to a unit to active duty for up to 24

months. The consent of the member is not required.

**MEMBERS SUBJECT TO ORDER**

All military members are presumed eligible for mobilization. Once mobilization is ordered, no member will be exempted

based upon civilian employment. Officers and airmen receiving notification of mobilization may request exemption from

_**Air National Guard Commander's Legal Deskbook**_

708

_**Chapter 20, Mobilization Matters**_

_**Section 20-2 Mobilization of Air National Guard (Federal and State)**_

_**Page 2**_

the order. Officers requesting exemption must tender their resignation while enlisted members with an approved exemp-

tion are discharged in accordance with AFI 36-3209, _Separation and Retirement Procedures for Air National Guard and Air Force_ _Reserve Members_. See AFH 10-416. Delays of up to 30 days may be requested.

**EFFECTS UPON THE UNIT**

Units, when mobilized by Title 10 orders, lose their state identity. Such units become subject to both operational and ad-

ministrative control by the active duty units to which they are assigned and/or attached. Commanders of the newly con-

stituted units may be drawn from other reserve components or from active-duty units. Although members are mobilized

with a unit, reassignment to meet the needs of the service may occur after being ordered to active duty. Reconstitution of

the unit occurs following mobilization and before deactivation. The commander is allowed 30 days for reconstitution.

Individuals may request earlier release dates following demobilization.

**EFFECTS UPON THE INDIVIDUAL**

Members must report when mobilized within the time frame set forth in AFI 10-402. During a full mobilization, the en-

listment or obligation of members may be extended for the duration of the war plus a period of six months.

Each mobilized member becomes entitled to the benefits of active-duty service, which may include authorization for stor-

age of household goods, authorization of TDY household goods, storage of POV, basic allowance for housing, family-

separation allowances, and medical care for the member and family. For members activated more than 30 days in support

of a contingency, medical care entitlement may begin 180 days prior to the start of the active-duty order and members

may be eligible for transitional coverage (TAMP) after release for 180 days.

Per diem may be authorized for full field-duty declarations. Retention on active duty after deactivation may be possible

IAW AFI 36-2008, _Voluntary Extended Active Duty (EAD) for Air Reserve Commissioned Officers_ and AFI 36-2002, _Regular Air_ _Force and Special Category Accessions_ , or for hardship reasons. Individuals within sanctuary may not be involuntarily released from active duty unless approved by the Secretary of the Air Force, but may become eligible for worldwide duty.

Members mobilized for federal service may only be disciplined under the Uniform Code of Military Justice (UCMJ) for

conduct committed by the member while on duty under Title 10 of the U. S. Code. Authority to discipline resides with

the commander of the active-duty unit to which the member is assigned or attached. When disciplinary actions are pend-

ing, members may be retained on active duty without their consent. Members serving sentences will be retained on ac-

tive duty without their consent.

Members of the National Guard in an alert status, but who have not been placed on active duty, remain subject to the

military code of the state in which National Guard membership is held. Only officers serving under Title 10 of the U.S.

Code may discipline a member under the UCMJ. Officers serving under Title 32 of the U.S. Code may not discipline any

member under the UCMJ. Likewise, an officer serving under Title 10 may not discipline a member in Title 32 status.

**DEMOBILIZATION**

Procedures for demobilization are found in AFH 10-416 and in the demobilization order if one is provided. Members

may apply for retention on active duty for hardship reasons caused by activation. The handbook also discusses retention

of members who enter sanctuary and medical hold for members who have medical emergencies or medical conditions

warranting consideration by the disability evaluation system.

**CALL**

The President or Congress may also call the militia to suppress insurrections, repel invasions or execute U.S. laws. Con-

gressional approval is not required for a "call" and no warning or alert period need be given. During its period of service

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_**Page 3**_

while under a "call," the militia retains its state character. The state continues to appoint the officers, and neither the officers nor the enlisted members may be held in service beyond the terms of their existing commissions or enlistments.

Whenever there is an insurrection in any state, and its legislature, or governor, if the legislature cannot be convened, so

requests, the President may "call" the militia of other states into federal service and use them, together with other armed

forces, to suppress the insurrection. The President may similarly use the militia of any state and other armed forces to

suppress rebellion and unlawful obstruction of the enforcement of federal law, and to put down insurrection, domestic

violence, unlawful combination or conspiracy that hinders the execution of state laws so as to deprive people of rights

guaranteed by the U.S. Constitution, or obstructs the execution of federal law or impedes the course of justice under

those laws. When the President uses the militia or armed forces under these provisions, the President must, by proclama-

tion, order the insurgents to disperse peaceably within a limited time.

**BY THE GOVERNOR OR LEGISLATURE**

Most states have provisions under state law permitting the governor or legislature to activate the Guard for specific pur-

poses outlined in state law. Subject to some limits, federal assets may be employed in the performance of state missions.

See the topic entitled _"Military Aid to Civilian Authorities"_ for more guidance in this area. Consult your Judge Advocate for more information relevant to your state.

_**KWIK-NOTE: Consult your Staff Judge Advocate if any questions arise concerning mobilization and/or disciplinary actions**_

_**during or after mobilization.**_

**RELATED TOPICS:**

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****

****

****

****

****

****

****

****

****

****

**SECTION**

Jurisdiction

2-5

Benefits

4-2

Military Aid to Civilian Authorities

6-2

Active Duty - Air National Guard Members

11-2

Active State Duty

11-3

Enforceability of Orders by Air Force Officers to ANG Personnel Not in Federal Service

11-5

Relationship with Other Military Components

11-6

Status of National Guard Members

11-7

Soldiers' and Sailors' Civil Relief Act (Federal and State)

20-5

Stop-Loss

20-6

Civilian Re-Employment for Guard Members

23-8

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_**Page 1**_

**Personal Affairs Briefing**

**Updated by Lieutenant Colonel Sue Ellen Schuerman, April 2015**

**AUTHORITY** : Collective advice and experience from attorneys and financial planners. 

## INTRODUCTION

All military members must keep their personal affairs in order in preparation for mobilization or deployment. Such prepa-

rations ensure that members will not be impaired from performing their military duties and will assist family members

in the event of death or disability. The briefing attached to this topic should be an integral part of the Preventive Law

and Pre-Mobilization Legal Counseling Programs.

_**KWIK-NOTE: Ensure your unit members are briefed regarding keeping their personal affairs in order.**_

**RELATED TOPICS:**

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****

****

****

****

****

****

****

****

****

****

**SECTION**

Family Care Plans

1-10

Disposal of Personal Property

1-11

Newcomer's Briefing

1-22

Remission and Waiver of Indebtedness

1-33

Report of Facts and Circumstances of Death

1-35

Benefits

4-2

TRICARE and DEERS

4-3

Disability of National Guard Members

4-4

Continued Health Care Benefit Program

4-5

Montgomery G.I. Bill

4-6

Payment for Healthcare Treatment of ANG Members

4-7

Veteran and Casualty Benefits

4-8

Access to Military Records

14-4

Judge Advocate Support for ANG Units Deploying Overseas

17-5

Legal Assistance Program

17-8

Preventive Law Program

17-15

Medical and Dental Care From Civilian Sources

19-9

Medical and Dental Care to Persons Authorized

19-10

Mobilization of the Air National Guard (Federal and State)

20-2

Pre-Mobilization Legal Counseling

20-4

Servicemembers Civil Relief Act (Federal and State)

20-5

Adoption Expenses Reimbursement 23-2 Citizenship

23-7

Civilian Re-employment Rights for Guard Members

23-8

Domicile

23-11

Foreign Divorce Decrees

23-13

Former Spouses' Protection Act

23-14

Garnishment

23-15

Living Wills

23-17

Powers Of Attorney

23-19

Wills & Trusts

23-20

ID Card Retrieval

24-9

Issue Items and Equipment Turn-In

25-13

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**Personal Affairs Checklist**

**GET YOUR RECORDS IN ORDER**

At one time or another, we have all said, "One of these days, I have to get organized." And we all know how easy it is to

keep putting off that day. Organizing home records is such a formidable task, we often just do not know where to start.

To help you begin, here are some simple, efficient methods for classifying and storing important documents.

First, gather all your records - those bursting shoe boxes, bulging envelopes, or paper bags stuffed with receipts, check

stubs, and other papers. Sort your records. Put aside canceled checks, documents substantiating tax returns over three

years old, expired insurance policies, closed accounts, etc. File these documents in a folder marked "historical records."

**THE RECORDS YOU NEED**

Here are some suggestions on organizing your files:

_**Personal Data**_

The following information should be maintained in the event of your disability or to assist your executor. This informa-

tion will be necessary to claim many of the benefits to which you are entitled.

1. Date and place of birth and certified copy of birth certificates of you, your spouse and children;

2. Social security numbers of your spouse, children and other dependents (you should obtain social security numbers for

all children);

3. Permanent home address, including a chronological list of your places of residence, including dates you resided there;

4. Date and place of any adoption, adoption papers and/or legal guardianship records;

5. Certified copy of any court order giving you legal custody of any children from a previous marriage;

6. Date and place of your current marriage, and a certified copy of marriage license or certificate;

7. Information on your previous marriage(s), such as name and current address of former spouse(s), the date and

method of termination of the former marriage(s) (i.e., divorce, annulment, death), divorce or annulment judgments, or-

ders, decrees or agreements along with documents related to spousal and child support, or death certificates of former

spouse(s);

8. Copies of your divorce or annulment decrees from prior marriage(s) of your present spouse along with documents re-

lated to spousal and child support;

9. Name, address, and telephone numbers of places where unmarried children, including adopted or stepchildren, are

enrolled in a full-time course of instruction if they are over the age of 18 but under 23;

10. Statement from licensed doctor or medical officer for dependent children over 21 years of age who are mentally or

physically disabled, including the period of disability. The statement should also include they are not capable of self-

support as the result of their illness or injury;

11. For illegitimate children, copy of a court order that you are the natural parent, and a copy of the court decision that

you contribute to the child's support, or a written admission of parentage by you if no court order;

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12. Naturalization and citizenship papers for you and your parents if you were born outside the U.S.;

13. Full names, places and dates of birth of your parents;

14. Family health records to include records of vaccinations, operations, significant medical conditions, and past illnesses or injuries with names and addresses of doctors and hospitals, receipts and bills for healthcare providers, prescription

drugs and medical appliances currently used; and

15. Address of your registrar of voters so you can arrange for absentee ballots.

_**Bank Accounts**_

For all checking accounts, savings accounts, credit union accounts, certificates of deposit, and IRAs, prepare a list to in-

clude:

1. Name, address, and telephone number of the institution where they are located;

2. Account or certificate number;

3. Interest rate, principal, and maturity date of time deposits;

4. Current balances; and

5. Location of bankbook, passbook, certificates, and all statements received from the institution. Save canceled pass-

books.

Keep an updated list of your bank accounts so your heirs may claim monies to which they are legally entitled. In most

states, inactive accounts will be closed, and the money in them will be transferred to the state for its general use. The

internet now affords a ready research tool to locate such accounts. Access to such state records can often be made

through your state's webpage. (For example _, see_ www.state.nj.us.  Substitute your state's abbreviation for "nj.")

_**Securities**_

Make a list for all securities, including stocks, bonds (municipal, corporate, U.S. Savings), mutual funds, and money mar-

ket accounts, with:

1. Name, address, and phone number of the institution where the securities are located, including that of your broker or

account representative;

2. Account number;

3. Number of shares;

4. Title of security ( _e.g._ , General Motors stock);

5. Serial number;

6. Dates bought, gross price paid, and commissions;

7. Dates sold, gross price received, commissions, and net proceeds;

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8. Where the transaction papers are located;

9. Certificates or statements of the account;

10. Date on which interest or dividends are paid; and

11. All other expenses incurred in managing your investments.

Actual certificates or bonds should be kept in a safe or secure place. Many people leave these with their broker or account

representative who holds them in the name of the institution and for your benefit. However, you should do so only with

reputable brokers. In such cases, make sure you are fully protected, the broker is insured, and a monthly statement will

reflect the status of your securities. Do not leave such documents with agents you deal with only online.

_**Real Estate**_

Unless otherwise indicated, keep the following records for every residence or piece of real estate you currently own:

1. Deeds, mortgages, leases, easements (rights-of-way) in a safe or secure place, with copies in this file (expired leases

on property you rented no longer need be kept, if outdated or are no longer applicable);

2. Address of property;

3. Date and place where deed, mortgages and easements were recorded;

4. Register number;

5. Names, address, and telephone number of persons in whose name the property is held;

6. The form of ownership in which the property is held (i.e., Joint tenancy, etc.);

7. Date property acquired;

8. Method by which the property was acquired (i.e., purchase, gift, inheritance, etc.)

9. Purchase price;

10. Record of all expenses incurred in acquiring the property, such as title insurance fees, real estate brokers' commis-

sions, attorney's fees and other closing costs (You will receive a closing statement itemizing these expenses - save it);

11. Copies of title insurance policies and reports;

12. The percentage of the price paid for the property by any co-owner(s), and the source of the funds all co-owners used

to buy the property (This becomes important if one of the co-owners dies and you are seeking to save estate or inheri-

tance taxes payable to the state or federal government by proving which co-owner paid for what part of the property

when purchased);

13. All encumbrances on the property, such as mortgages, liens and judgments, to include name and address of the

holder of the encumbrance, the amount, and the date the encumbrance became such on the property;

14. All documents showing encumbrances on the property as satisfied or fully paid (These documents should be re-

corded in the same local government office where the original encumbrance was recorded);

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15. Name, address, and telephone number of the holder of the mortgage, maturity date, original amount, balance due,

monthly payment, mortgage account or loan number, and amortization or loan payment schedules;

16. Mortgage life insurance policy, and name, address, and telephone number of insurance company, policy number, pol-

icy limits and expiration date, and annual premiums;

17. Property insurance policy, including casualty, fire, theft, and liability, with name, address, and telephone number of

insurance company, policy number, policy limits and expiration date, and annual premiums;

18. Receipts, canceled checks and other papers showing all capital improvements to your property while you owned it.

These will increase your tax basis (cost or purchase price), so when you sell the property, the difference between the

sales price and your original purchase or acquisition price will be less, and you will be subject to fewer taxes on the gain or profit from the sale. Even though the exemption for the sale of residences has greatly increased, circumstances may

force you to rent a property, subjecting it to taxation upon sale.

19. Property tax bills paid for the last three years;

20. Copies of appraisals;

21. For investment or business real estate, records of the costs of managing and maintaining the property;

22. For investment or business property, records of rental income received, mortgage income received, depreciation

schedules and deductions;

23. For investment or business property, leases and information on tenants, such as names, period of rental, expiration

date, and amount of rental received; and

24. For all property you have sold, the closing statement received from your attorney and/or bank involved showing sales

price and the expenses of the sale.

Maintaining these records in connection with your real estate will help you budget expenses upon mobilization, facilitate

any sale, and minimize taxes on any profits from such sale.

_**Employment Matters**_

List all your employment (past or current, full-time or part-time) benefits which would pass to your survivors or which

would inure to the benefit of your family if you were mobilized. Also, list the name, address, and telephone number of

the person(s) at your employer, whom your family should contact. Such benefits may include:

1. Pension or other retirement plans, including the Thrift Savings Plan, to include identifying numbers and amounts, and

whether the plan is vested;

2. Profit-sharing, stock-option and deferred compensation plans, to include identifying numbers and amounts, and the

terms of the plan;

3. Statements issued to you from the employer or plan administrator showing all the above;

4. Life and medical insurance policies for you and your family, to include type of insurance, policy numbers, premiums,

and amount of coverage;

5. Name, address, and telephone number of union and person to contact, date of union membership along with evidence

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of membership and status, and list of union benefits (You may want to arrange suspension or adjustment of dues pay-

ments upon mobilization);

6. Business agreements to include partnership documents, agency or sales contracts, royalties or residuals, and employ-

ment contracts; and

7. Evidence of beneficial interest in any business or joint venture.

Keep your employer informed of your military obligations. When you are alerted either through verbal or written orders,

notify and discuss with your employer your intention to return to work upon completion of military duty. Do not use mo-

bilization as an opportunity to quit your job, thinking that you want to change jobs anyway. Circumstances of military

service may make job searching while on active duty an impossible task.

_**Insurance**_

Other than property insurance and mortgage and employment life insurance, list and have the following handy:

1. Include all private life, health, disability, or accident policies in this list to include ones you own privately, or through a union, religious or fraternal organization, a club, or through government or military service;

2. Name, address, and telephone number of insurance broker, agent or other person or entity to contact for questions or

claims to benefits of these policies;

3. Keep all policies that are in force, and any old ones that may still provide further benefits. For policies that have ex-

pired or are no longer in force, write, "canceled" and the date across the first page of the policy; and

4. For each life insurance policy, include the name of the insured, type of policy (term, whole life, etc.), face value, name, address, and telephone number of insurance company, policy number, effective date, expiration date, premium payments

amounts, when they are due, and how they are made (quarterly, by allotment, etc.), owner of policy, beneficiary and loca-

tion of policy.

5. Include instructions to your beneficiaries to check with all banks and credit unions in case the institutions have small

insurance policies for account holders.

This information will enable your family to obtain the necessary claim forms for the benefits of these policies. Your life

insurance beneficiaries may wish to consult with your accountant or attorney before deciding whether the proceeds

should be paid out in a lump sum or in a series of distributions if they have a choice. Include in your list any veteran's

benefits to which you are entitled, such as plot or burial allowances, and Social Security Administration death benefits.

Review your coverage with your agent periodically. Certain premiums may be covered under the Servicemembers Civil

Relief Act (federal and state, if your state has one).

As with bank accounts and securities, your beneficiaries must know which policies you possess to make a claim.

_**Automobiles**_

1. Certificates of title, bill of sale, or lease;

2. Make, model, year, vehicle identification number, and state of registration;

3. Date acquired, price paid, location, and names, addresses, and telephone numbers of co-owners;

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4. Financing information to include name, address, and telephone number of lien holder and amount financed, lessor,

length of payment schedule, amount and frequency payments, and coupon book;

5. Insurance information to include name, address, and telephone number of insurance company, coverage amounts and

types, effective date, expiration date, policy number, amount and frequency of premiums, and copy of the current policy;

6. Warranties; and

7. Tax receipts.

_**Other Personal Property**_

_Hard Assets_

For your property such as gems, precious metals, collectibles, jewelry, furs, artwork, stamps, coins, boats, recreational

vehicles and appliances, etc., keep a list and have the:

1. Type, quality, quantity, date purchased, gross price paid, commissions, and other costs of purchase; how acquired (pur-

chase, gift, inheritance), date sold, net proceeds, location of assets, transaction slips, and evidences of ownership such as certificates of title, registration, sales receipts or bills of sale;

2. Photographs and appraisals of these items are valuable in substantiating casualty and theft losses for claims under

your property insurance and on your income tax return. Keep appraisals current by updating them annually;

3. Tax receipts, warranties, operating manuals and repair bills; and

4. Name, address, and telephone number of any joint owners, percentage owned and source of funds each owner used to

purchase the asset.

_Other Assets_

You should maintain a file for:

1. Notes receivable, mortgages, or other evidence of income producing property; and

2. Name, address, and telephone number of person or entity who owes you the money, amount, frequency of payment,

interest, and when the debt is due to you.

_**Taxes**_

In addition to your real estate taxes discussed above, you should keep:

1. Copies of your income tax returns filed with the federal and state government for at least the three previous years

(some advisors recommend six years), including receipts, canceled checks, and diaries substantiating your deductions,

depreciation, loss carry-over and other schedules, withholding and earnings statements, records of capital gains and

losses, quarterly estimated tax forms, and correspondence with tax authorities. Put all older returns and their back-up

documentation in a "dead storage" file;

2. Amount of all taxes you will have to pay for the current year, and whether they are estimated or withheld; and

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3. Record the addresses of all taxing authorities, for your income taxes and property taxes. Upon mobilization, ensure all

taxes are paid to date and notify taxing authorities where further tax notices are to be sent. You may be granted an exten-

sion to pay certain taxes under the Servicemembers Civil Relief Act (again, federal and state, if your state has one).

_**Credit Card Accounts**_

Set up a separate file for each account. For each account, list and keep:

1. Names and addresses of all account holders, and specify if they are either joint accounts, or accounts on which another

person(s) just has charge or user privileges;

2. Name, address, and telephone number of bank or entity that issued the card;

3. Type of account such as Visa, MasterCard, American Express or a store, gasoline, or telephone company card. For ex-

ample, a Visa card is an example of a credit account on which you pay a finance charge on your outstanding balance each

month, while American Express is an example of a charge account on which you are expected to pay the balance in full

upon receipt of each statement;

4. Card or account number;

5. Credit limit and expiration date;

6. Telephone number of whom to contact to report lost or stolen cards;

7. Receipts, bills, and correspondence with the card issuer, and credit agreements;

8. Current Annual Percentage Rate (APR);

9. Note any cards that have "credit card life insurance" which you have purchased or is included in your annual fee. This

is insurance which the credit card company offers to automatically pay off outstanding balances upon death;

10. Location and number of cards issued; and

11. Instructions for your survivors to destroy cards in your name and to have them reissued in the survivor's name, if

desired.

_**Bills and Debts**_

All notes, judgments, liens, credit union accounts, bills, leases, purchase contracts, installment sales contracts, and other outstanding debts that must be paid should be listed and should include:

1. Written evidence of the debt;

2. Name, address, and telephone number of the creditor;

3. Total amount owed;

4. Payment terms, including frequency and amount, interest and maturity date;

5. All obligations you have co-signed or guaranteed; and include name, address, and telephone number of the other

debtor or the primary debtor, plus 1 through 4 above for these obligations also; and

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6. Documents relating to any bankruptcy action you filed.

_**Safe Deposit Boxes**_

For every box you have, include:

1. An inventory of the contents of the box and where the inventory is located (make more than one copy and keep them

in difference places with one in the box);

2. Name, address, and telephone number of where the box is located;

3. The number of boxes you have and the box number(s);

4. Location and number of keys; and

5. Name, address, telephone number and relationship to you of any person with joint access to the box. Joint access may

fit your needs in the event you are mobilized.

Under some states' laws, boxes are "sealed" upon the death of one of the box holders. Employees of the bank where

your box is located daily read the obituary pages of the local newspapers and cross-check names against their box hold-

ers. If state law provides for the sealing of boxes, upon the bank learning of your death, the box may be sealed until a representative of the state tax department meets the bank representative and inventories the contents of the box, or until

your representative obtains a court order to open the box. Because of this practice, you should not keep your will in a

safe deposit box, nor should you keep documents your family will need immediately in such a box. If the state where

your box is located seals boxes upon the death of one of the box holders, and if you have a business which is incorpo-

rated, you should discuss with your attorney whether you should maintain your box in your corporate name rather than

in your own name. If you put the box in your corporate name, you can have a person have joint access to the box under

your corporate name. This way, since your corporation will not "die" upon your death, the box will not be sealed and the

person with joint corporate access will be able to obtain the contents of the box upon your death.

If the state where your box is located does not seal boxes upon the death of one of the box holders, the above advice is

not pertinent, since another person with joint access to your box will have access to it upon your death.

_**Business Expenses**_

Maintain records to substantiate all deductible or reimbursable outlays you make on your employer's behalf each year.

_**Net Worth Statement**_

Annually appraise and assess your assets and liabilities, and indicate where the net worth statement is located.

_**Wills, Trusts and Powers of Attorney**_

For your last Will and Testament, all Living Trusts, Powers of Attorney and your Living Will (if you have one), list:

1. The location of each document, and whom to contact to obtain the original and existing copies;

2. The date and place it was executed;

3. The names, addresses, and telephone numbers of the holder of your Power of Attorney, and your Will's executor(s),

trustee(s) and guardian(s), and the alternates or successors to each; and

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4. The name, address, and telephone number of your attorney and accountant.

For any Will, Trust or Power of Attorney of another in which you are designated an executor, guardian, trustee, benefici-

ary, or holder of the power, list:

1. The location of each document, and whom to contact to obtain the original and existing copies;

2. The date and place it was executed;

3. The name, address, and telephone number of the person who made this designation; and

4. The name, address, and telephone number of the attorney or accountant of the person who made the designation.

Keep originals of these documents in your safe, strongbox or that of your attorney. Keep copies in your home file.

_**Clubs, Organizations and Subscriptions**_

_Clubs_

List the name, address, and telephone numbers of all clubs or fraternal, service or professional associations to which you

belong, such as golf, tennis, health, athletic, record or video clubs, so that memberships can be canceled and unused por-

tions of paid dues or fees may be recouped. Include any benefits of membership to which your survivors or family mem-

bers may be entitled and to whom they should contact to claim them.

_Organizations_

If you hold files or other information for volunteer or business organizations, tell your spouse or personal representative

where to find these files and information and to whom they should be returned.

_Subscriptions_

List magazines and periodicals to which you subscribe, so they may be canceled and unused portions may be refunded.

_**Military Benefits and Duties**_

Include the following related to your ANG service:

1. Discharge certificates;

2. Your SGLI amount of coverage;

3. Civilian employment benefits upon being mobilized;

4. Family care responsibilities and executed documents reflecting these;

5. Any rights or obligations you have under the Former Spouses' Protection Act, Survivor Benefit Plan and/or Garnish-

ment Orders;

6. Honorary memberships;

7. Turn-in of issue items, equipment, and ID cards;

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8. Healthcare treatment to which your family is entitled under Tricare and DEERS;

9. Benefits to which you and your family are entitled including veterans benefits from the state and federal government,

and Montgomery G.I. benefits;

10. Location of Powers of Attorney you have executed;

11. If you owe a debt to the government, any applicable procedures for its waiver or remission;

12. Your military records;

13. The names, addresses, and telephone numbers of key offices or persons at your base to contact for assistance, such as

Finance, Personnel, Judge Advocate, Chaplain, and your Commander;

14. The location of information in the form of handouts you have received from your unit to assist your family with any

of the above; and

15. Address of your local draft board, if in existence. You will need to notify them of your change of status.

_**Summary – Names, Addresses and Telephone Numbers**_

Even though described in the subjects to which they pertain, you should separately list this information for your:

1. Attorney;

2. Accountant;

3. Investment broker or account representative;

4. Insurance agent or broker;

5. Employer(s);

6. Banks where you have accounts;

7. FSS at your base;

8. Social Security Office;

9. Veterans Administration; and

10. Any other person or entity you think your survivors or family may need to contact.

You should give this list to those to whom you have entrusted the management of your affairs, and should indicate on

the list who has copies of it.

_**Letter of Instructions**_

If you were to be mobilized or die tomorrow, would your spouse or other family member or representative have the infor-

mation needed to manage or wind up your affairs and make final arrangements on your behalf?

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Even though you have established and maintained the files that have just been discussed, and you and that person have

discussed these matters, it is a good idea to summarize the important details of where to find anything that is needed,

whom to contact, and what is to be done should something happen to you. This summary should be written in a letter of

instructions and should be updated yearly, or sooner if something in it changes. Copies should be given to the person in

your family who needs it to act, as well as to one or more of your close advisors.

_Contents of the Letter_

In the letter you can include or attach the list of persons to contact ( _See_ the above _"Summary – Names, Addresses and Telephone Numbers"_ section of this topic). In the first few paragraphs, consider including information needed immediately after your death, such as your preference for funeral arrangements, whether you have purchased a cemetery plot, where it

and the deed or other evidence of its ownership is located, and your preference or lack of preference to make a gift of any

of your body parts.

You should also include where to find important items such as your Will, insurance policies, bank books, credit union

account passbooks, other vital documents, your safe deposit box keys, strongbox keys, and the combination to your safe.

**CONCLUSION**

Admittedly, assembling and keeping these records current are not easy tasks. This takes time. The best way to approach

it is to do it little-by-little and on a regular schedule over a set period.

Once you set up this inventory and can immediately put your hands on the papers you need, you will be better prepared

to claim insurance benefits in the event of a casualty, may be able to claim once-hidden tax deductions, withstand tax

audits, uncover overlooked insurance or pension benefits, expedite tax return preparation (and avoid the April 15th

panic), and improve your estate, financial, and tax planning.

Most importantly, you will have the peace of mind in knowing that your loved ones will know where everything is, and

what to do about it in the event you are mobilized or die. You owe them that much.

_**Air National Guard Commander's Legal Deskbook**_

722

_**Chapter 20, Mobilization Matters**_

_**Section 20-4 Pre-Mobilization Legal Counseling**_

_**Page 1**_

**Pre-Mobilization Legal Counseling**

**Updated by Lieutenant Colonel Sue Ellen Schuerman, April 2015**

**AUTHORITY** : Applicable state law; command discretion; the _Related Topics_ listed below. 

## INTRODUCTION

Establishing a robust pre-mobilization legal counseling program ensures your unit members and their families are ready

when mobilization occurs. Your unit Judge Advocates and paralegals are knowledgeable regarding the personal legal is-

sues that arise in the event of mobilization or deployment and can provide briefings at Commander's Calls and Newcom-

ers' Briefings. Additionally, your legal staff can prepare handouts on these topics or compile a handbook of pre-

mobilization legal issues for distribution to your members. The briefing below can help inform members of the actions

they should take, at a minimum, to ensure readiness with their personal affairs.

**SCOPE OF PRE-MOBILIZATION LEGAL COUNSELING**

The scope of pre-mobilization legal counseling should include personal and military matters. Below the sample briefing

are some of this Deskbook subject titles that should be part of your unit's pre-mobilization legal counseling program.

**ARE YOU READY FOR MOBILIZATION?**

In the event you are mobilized, the time available to put your personal and legal affairs in order will be relatively short.

Problems arise when people are suddenly and unexpectedly separated from their businesses, jobs, and families. Advance

planning helps you avoid many legal problems upon mobilization. In addition, taking care of your personal affairs now,

when it is easier for you to do so, will give you and your family peace of mind and allow you to better perform your mili-

tary duties if you are mobilized. Do not wait until you are mobilized to begin to get your affairs in order. DO IT NOW

and remember to keep your documents updated.

**WHAT YOU SHOULD DO TO GET READY**

The key idea in pre-mobilization legal counseling is "ADVANCE PLANNING." Some people need to do more than others

to put their personal affairs in order. However at a minimum, everyone should do the following things:

1. Consider making a WILL, especially if you have minor children or own real estate. If you already have a will, make

sure you keep it up to date. Make sure your executors, guardians, trustees, and alternates agree to serve. Do your will

now and take the time to do it thoroughly. Don't wait until you are mobilized and have to rush to get it done.

2. Ensure your Record of Emergency Data is current.

3. Consider making a General Power of Attorney. This power of attorney may, if you wish, take effect only when you are

mobilized and your orders are attached to it. The Power of Attorney should authorize someone you trust to transact busi-

ness for you in your absence.

4. If you are required to have a family care plan, make sure your short- and long-term caregivers are in place and that

your in loco parentis powers of attorney are current.

5. Maintain a personal file of your military records.

6. Keep a list of your assets, liabilities, income and expenses.

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_**Chapter 20, Mobilization Matters**_

_**Section 20-4 Pre-Mobilization Legal Counseling**_

_**Page 2**_

7. Keep your important papers in a safe place, preferably a bank safe deposit box, personal safe or fireproof container, and tell your spouse, holder of your Power of Attorney or next-of-kin where these papers are located and how to access them.

8. Tell your family about government benefits and entitlements should you die. Be certain to advise family they can re-

ceive legal assistance from the nearest active duty military legal office while you are on active duty, regardless of service.

Your unit legal office is available to assist you regarding potential legal issues related to mobilization. The legal office can also prepare your will and powers of attorney.

**CONCLUSION**

Pre-mobilization legal preparedness is everyone's responsibility - commanders and unit members alike. Your legal office

can assist you in preparing your members for deployment. PLEASE DO NOT PUT THIS OFF. It is a big job, but like all

big jobs, doing a little bit at a time with the help of those close to you, will get it done a lot sooner.

_**KWIK-NOTE: Planning is the key to mobilization readiness.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

**Personal Matters**

Family Care Plans

1-10

Benefits

4-2

TRICARE and DEERS

4-3

Continued Health Care Benefit Program

4-5

Montgomery G.I. Bill

4-6

Veteran and Casualty Benefits

4-8

Access to Military Records

14-4

Judge Advocate Support for ANG Units Deploying Overseas

17-5

Legal Assistance Program

17-8

Personal Affairs Briefing

20-3

Servicemembers Civil Relief Act (Federal and State)

20-5

Civilian Re-employment Rights for Guard Members

23-8

Foreign Divorce Decrees

23-13

Former Spouses' Protection Act

23-14

Garnishment

23-15

Living Wills

23-17

Powers of Attorney

23-19

Wills and Trusts

23-20

**Military Matters**

Military Justice Jurisdiction – ANG Members in Title 10 Status

8-2

Status of National Guard Members

11-7

Foreign Criminal Jurisdiction

15-8

Passports and Visas

15-12

Returning to the United States - Customs

15-13

Status of Forces Agreement

15-14

Law of Armed Conflict

15-16

Mobilization of the Air National Guard (Federal and State)

20-2

Stop-Loss

20-6

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 20, Mobilization Matters**_

_**Section 20-5 Servicemembers' Civil Relief Act (Federal and State)**_

_**Page 1**_

**Servicemembers' Civil Relief Act (Federal and State)**

**Updated by Major Jennifer A. Thomas, April 2015**

**AUTHORITY** : 50 U.S.C. Appendix 501 _et seq._ ; applicable state law. 

## INTRODUCTION

The following is an overview of rights and benefits available under Servicemembers' Civil Relief Act (SCRA), formerly

the Soldiers' and Sailors' Civil Relief Act. This topic is not to be cited as legal authority for interpretation of the SCRA.

For legal interpretation, consult a Judge Advocate.

**FOCUS**

The SCRA was signed into law on 19 December 2003 by President George W. Bush and supersedes the Soldiers' and Sail-

ors' Civil Relief Act of 1940 (SSCRA). The SCRA is intended to strengthen the rights and protections afforded to those

in military service, and in some cases their family members, and provide essential clarification of benefits continued from

the SSCRA.

This topic discusses only the Federal statute. No references are made to any state statute intended to apply as a state

SCRA or SCRA or a supplement to the Federal SCRA.

**THE SERVICEMEMBERS' CIVIL RELIEF ACT AND WHAT IT DOES**

The SCRA provides a wide range of protections for individuals entering or called to active duty in the military service un-

der Title 10. It also applies to individuals in Title 32 state status called to duty for 31 days or more in response to a national emergency declared by the President and supported by federal funds. It does not apply to any other military mem-

bers in Title 32 status. Congress intended the SCRA to TEMPORARILY postpone or suspend certain civilian obligations

to enable service members to devote full attention to their military duties when they have been ordered to drop their eve-

ryday affairs and answer their country's call. The SCRA does not necessarily eliminate obligations. Instead, if the SCRA

applies, certain obligations may be put "on hold" until members return to civilian life when they have the opportunity to

take the necessary measures to protect their interests. A member's desire to claim rights under the SCRA will not be

cause to delay mobilization.

The SCRA does not apply to ANG members performing Annual Field Training, inactive duty for training or state active-

duty service.

The SCRA affords protection in every court, federal, state and local, in the United States, and applies to the actions of

every federal, state or local governmental agency, and every private business or individual.

**WHAT THE SCRA DOES NOT PROTECT**

**Criminal Matters**

The SCRA does not provide rights or protections concerning CIVILIAN CRIMINAL prosecutions or matters, including

traffic tickets, if the state considers the traffic offense to be criminal. (Many states will stay prosecutions or afford the member some protection when the member is alleged to have committed a non-criminal traffic offense.) Thus, if a member has a criminal matter pending in a civilian court at the time of the order to active duty, the member must address the

matter with the court and either resolve it or receive permission to stay proceedings until in a position to later resolve

the matter. If the member wrongfully attempts to invoke the provisions of SCRA or simply ignores the matters, a war-

rant will issue for arrest. Members known to have criminal matters pending in civilian courts should be referred to a

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_**Section 20-5 Servicemembers' Civil Relief Act (Federal and State)**_

_**Page 2**_

Judge Advocate. (Military attorneys cannot represent military members in civilian criminal prosecutions, but can help

resolve this type of problem.)

**Civil Matters**

The SCRA only covers those civil matters specified in the statute, and only under certain circumstances. Members must

be careful to ensure the civil matters for which relief is sought are covered by the SCRA. Otherwise, members must

make arrangements to address the civil matters in their absence.

_**Civil Matters Not Covered**_

Financial obligations incurred by the member or family members are not by covered by the SCRA. Thus, credit card pur-

chases, and contracts or agreements for installment purchases for cars, furniture, etc., that are signed after the member

enters into active duty are not protected by the SCRA.

_**Specified Matters Not Covered in All Situations**_

Certain civil matters may be addressed in the SCRA, but may not be protected because the military-civilian pay differen-

tial does not materially affect the member's ability to meet those obligations. The law intends to protect military mem-

bers who suffer financial hardship as the result of their entry into active military service but does not intend to provide

an additional benefit to those who are financial advantaged by entry into active military service or are on a par with their civilian financial situation. If a member applies for benefits under the SCRA that are dependent upon a material reduction in income but that member's income has not been materially affected by entry into active military service, a civilian

court may determine the member is not entitled to the protections of the act and the member may become liable to a

creditor for late payment charges, interest charges and costs, including attorney's fees, associated with the creditor's lawsuit to force the member to pay what should have been paid. In determining whether military service has materially af-

fected a member's ability to meet financial obligations, factors such as increased day- care costs, additional living ex-

penses, or other costs incurred as the result of entry into active service may be considered.

**WHEN THE PROTECTIONS APPLY**

**Federal Activation – Title 10**

The protections of the SCRA begin on the date the member is ordered to duty. Verbal orders, later confirmed in writing,

are sufficient to entitle the member to the protections and benefits of the act. The protections apply whether the active

duty is voluntary or involuntary. The protections under the SCRA end at various times after the military member's active

duty ends depending on the type of protection involved. These protections are specified in the sections below.

**Active State Service Not Covered**

Because of the dual missions of the National Guard, the governor may call the Guard into active service of the state. This

is the state equivalent of a federal mobilization. The authority for the state activation is a state statute or regulation, and the activation occurs upon the governor's order. Such state service, however, is not covered by the SCRA. State activation

may, however, create the same problems for Guard members who are called away from their civilian status as does a fed-

eral mobilization. In these situations, the member's protections and benefits are limited to those provided by state law.

Many states have statutes or regulations that provide benefits similar to the SCRA. Upon a state activation, a Judge Advo-

cate should be consulted to determine the protections and benefits afforded to military members.

**GAINING THE PROTECTIONS OF THE SCRA**

**Inform Those Who Must Adhere to the Act**

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_**Section 20-5 Servicemembers' Civil Relief Act (Federal and State)**_

_**Page 3**_

The protections of the SCRA are not automatic. The member must inform civilian courts, agencies, businesses or people

that he has entered active duty service and is claiming the protections and benefits of the SCRA. Otherwise, a member

may denied or forfeit the protections and benefits of the act.

**Notice Letters**

To assist members in informing the proper people, Attachments to this topic have been provided. Attachment 1 is a sam-

ple letter from the member informing the recipient that the member has entered into active duty and is claiming the pro-

tections of the SCRA. Attachments 2 and 3 are sample letters to the court requesting a stay of legal proceedings. Attach-

ment 4 is a sample letter to creditors specifically claiming the six (6%) percent interest rate reduction for installment

debts that existed before the member's entry into active duty service.

**Who Should Send Notice Letters**

Members should send notice letters to those who must provide them with the protections and benefits of the act. Ideally,

a copy of the member's orders should be attached to the notice letter. In addition, commanders and Judge Advocates may

choose to send notice letters and claims of SCRA protections from the unit, as a letter from the unit can provide credibil-

ity to the member's claim for benefits. However, the unit's letter should not be the only notice letter sent to the party

that must provide the protections of the act unless military exigencies prevent the member from sending a notice.

**How the Letters Should be Sent**

The letters should be sent certified mail, return receipt requested, or delivered by any other means that enables the mem-

ber to easily prove the intended recipient received it. A copy of any notice letter sent should be maintained, at a mini-

mum, until the end of the member's term of active duty service and, maximally, if there is any dispute over the mem-

ber's claim for protections and benefits, until the dispute is resolved.

**Know in Advance of Mobilization to Whom the Letters Will be Sent**

All members should maintain an accurate and current list of the names and addresses of all civilian entities and persons

to whom the letters will be sent in the event of mobilization or rapid deployments. Members should be encouraged to do

this in advance to avoid the last minute rush in tending to these matters.

**THE PROTECTIONS AND BENEFITS**

The SCRA provides protections for lawsuits, including child custody proceedings, and financial matters. All members

and/or their families are encouraged to consult with a Judge Advocate to assist in identifying the specific protections and

benefits available under the SCRA and claiming applicable protections and benefits.

**THE CIVIL LAWSUIT**

Persons who bring or start the suit are known as "plaintiffs." Persons against whom suit is brought are known as "defen-

dants." The typical lawsuit is begun when the plaintiff, either alone or through an attorney, files in a court a document

called a "complaint." In the complaint, the plaintiff states the reason for the suit. After the complaint is filed, the plaintiff must give the defendant notice the suit has been started. This is accomplished by means of serving (delivering) a "summons" and a copy of the complaint on the defendant. A summons is a formal written notice to the defendant to the effect

a suit has been filed against the defendant, and unless the defendant contests the suit, "judgment" may be entered

against the defendant. A judgment, unless successfully appealed, concludes a lawsuit. If the defendant desires to contest

the plaintiff's claims, the defendant will usually file a written document called an "answer." In the answer, the defendant

states why the plaintiff is not entitled to the relief sought. If the parties cannot resolve the matter, a trial is held and court enters a judgment in favor of one of the parties.

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_**Section 20-5 Servicemembers' Civil Relief Act (Federal and State)**_

_**Page 4**_

If the defendant does not file an answer within the time specified in the summons, the defendant is said to have "de-

faulted." When a defendant has defaulted, the court may enter a "judgment by default" in favor of the plaintiff.

**General Relief Protections Applicable to All Lawsuits**

The SCRA protects against default judgments, entitles the military member to a stay or delay of a lawsuit and gives the

member additional time in which to file lawsuits.

_**Protections Against Default**_

Under the SCRA, a court will require a plaintiff to file a statement under oath (called an affidavit) that a defendant is not in the military service. This affidavit must be filed before a court can enter a default judgment against the defendant. If

the plaintiff is unable to make such a statement, then the plaintiff must file a sworn statement that:

1. the defendant is in the military service; or

2. the plaintiff is unable to determine whether the defendant is in the military service.

_Rights of the Defendant in the Service_

If the plaintiff's affidavit states the defendant is not in the military service, a default judgment may then be entered

against the defendant.

If the plaintiff's affidavit states the defendant is in the military service, a default judgment may be entered against the

defendant only after the court, assuming an attorney is not presently representing the defendant, has appointed an attor-

ney to represent the defendant, and the attorney has had an opportunity to be heard in the defendant's behalf. An attor-

ney appointed by the court to represent a military defendant has no power to waive any of the defendant's rights or bind

the defendant to any agreement without the defendant's consent.

If a plaintiff cannot determine whether a defendant is in the military service, a court may require a plaintiff to post a

bond to protect a defendant in the event a default judgment is later set aside in whole or in part because the defendant

was in the active military service.

If the court determines a defendant is in the military service or cannot determine whether a defendant is in the military,

the court may stay (delay) the proceedings until the defendant returns from military service or until it can determine the

defendant's status, as the case may be. "Stays" will be discussed later in this section.

_False Affidavit_

If a plaintiff swears in an affidavit that a defendant is not in the military service when the plaintiff knows the defendant is performing active duty military service, the SCRA makes such false swearing a crime and the guilty party can be sent to

jail for up to one year, fined or both fined and sent to jail IAW Title 18, United States Code.

_Setting Aside a Default Judgment_

If a default judgment is entered against a military member during a period of active duty service or within sixty (60) days

after discharge, the member may still have some protection. A court can be asked to reopen the case and set aside the

default judgment. The court will do so if the military member can show that:

1. the application to reopen the case is being made within ninety (90) days after release from active duty; and

2. the military member has a meritorious defense to the suit.

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Even assuming a plaintiff may have obtained a default judgment as the result of false swearing as previously discussed

herein, the military member defendant must still meet all requirements before the case may be reopened. Any punish-

ment for the plaintiff's false swearing will be meted out in a separate proceeding.

CAUTION: If a member learns, either indirectly or directly through receipt of a summons and a copy of the complaint,

that a lawsuit has been filed, the member should refrain from contacting the court or counsel for the plaintiff. Instead,

the military member should contact a civilian attorney or a Judge Advocate for advice before taking any action, including

sending a letter to the court. By acting alone, the military member may waive or lose the protections of the SCRA. The

protection against default judgments applies only when a military members fails to make an "appearance" in the lawsuit.

The word "appearance" in a legal context takes many forms too numerous to mention and varies from state to state and

from court to court within a state. Sending a letter to a court, even if only to inform the court that the military member

is in active service, may constitute an "appearance," causing the member to lose the protections of the act that apply to

default judgments. (There may, however, be some other protections of the act available.) Thus, if at all possible, the mili-

tary member must be careful not to do anything that may be construed to be an appearance.

**Stays (Delays)**

A "stay" is an order of a court that delays a court proceeding or the execution of a court order, such as a judgment to col-

lect money, until a later date.

_**Availability of Stays for Military Members**_

At any stage of a lawsuit or legal proceeding, including child custody proceedings, an active-duty military member, regard-

less of whether the plaintiff or defendant, may ask a court to stay the proceedings. In addition, the court may order an

action against an active-duty military defendant stayed without being asked if it determines (1) there may be a defense to

the action and the defense cannot be presented without the defendant's presence or (2) after due diligence, court-

appointed counsel cannot locate the defendant or otherwise determine whether a meritorious defense exists. When a

service member requests a stay, the SCRA requires the court to grant it for a minimum period of 90 days. When asking

for a stay, the military member needs to inform the court of activation pursuant to Title 10 of the United States Code or

pursuant to Title 32 of the United States Code for more than 31 days for the purposes of responding to a national emer-

gency declared by the President. ( _See_ Attachment 2). The military member must also provide a statement from the com-

manding officer stating the military member's service prevents an appearance before the court and that the military mem-

ber is unable to take leave to appear before the court. ( _See_ Attachment 3).

Details of how the member's ability to defend or prosecute a lawsuit should be included. Service overseas prevents rapid

communications with the member's counsel or the court as there may be limited access to computers or telephones for

long periods. If the other party to the lawsuit does not want it delayed, that party must prove to the court the military

member's service does not materially affect his ability to prosecute or defend the lawsuit. The automatic right to a stay

under the SCRA is limited to 90 days. A stay longer than 90 days is up to the court. Providing detail how the member's

military status affects his ability to prosecute or defend the lawsuit is important. If a judge determines a stay longer than 90 days is appropriate, the court may order a stay for as long as justice and equity require. If the member is represented

by an attorney, all communications with the court should be made through and with assistance of the attorney.

_**How Stays Affect Judgments**_

Stays can also be granted for the execution of judgments entered against military members before they were activated. If,

for example, the member's military and/or civilian pay was being garnished before entry into active military service for

the payment of arrearages in spousal or child support, the court may stay the collection of that judgment during the mem-

ber's active-duty military service. (The member would have to show that military service has materially affected the abil-

ity to pay the garnished amount.) The SCRA, however, does not give the member the right to question the validity of any

judgment previously entered.

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_**Chapter 20, Mobilization Matters**_

_**Section 20-5 Servicemembers' Civil Relief Act (Federal and State)**_

_**Page 6**_

_**If Other Potential Defendants Exist Who Are Not Performing Active-Duty Service**_

If there are other defendants who are not performing active-duty military service, a court may stay the action against

them so all defendants can be tried together or, alternatively, order the case against the other defendants to presently proceed and stay the case only as to the active-duty military member. The non-active-duty defendants have no automatic

stay rights under the SCRA, except that the military member's family may have rights depending on the nature of the

action.

_**Contract Claims That Involve Penalties For Breach of Contract**_

If the lawsuit involves a claim that the service member is in breach of a contract and the contract calls for fines or penalties for noncompliance, no fines or penalties may be imposed for any period of stay imposed by the court.

_**Practical Tips**_

The military member must affirmatively request a stay. Although the statute places the burden of proof upon the other

party, the military member should still attempt to demonstrate the ability to proceed with the lawsuit is materially af-

fected by military service.

**Statutes of Limitations**

_**Definition and How They Work**_

The third kind of general relief protection under the SCRA, applicable to all lawsuits, deals with statutes of limitations.

In most instances, a person who has a right to bring a lawsuit or a proceeding before a governmental administrative

board or agency must start the lawsuit or proceeding within a certain time limit. The laws and regulations setting this

time limit are known as "Statutes of Limitations." These vary depending on the type of lawsuit or proceeding and the

state in which the lawsuit or proceeding must be commenced. A statute of limitations starts "running" from the instant

the suit or proceeding first could have been filed and it is deemed to have "run" when the time limit for filing the suit or proceeding has passed. Generally, once the statute of limitations for a particular lawsuit or proceeding has run, the lawsuit or proceeding is forever barred.

_**The Relief – The Statute of Limitations Stops Running**_

Under the "general relief provisions" of the SCRA, the statute of limitations stops running while the member is perform-

ing active-duty service. The express language of the SCRA reflects that the tolling of a statute of limitations is manda-

tory, and the courts have not required proof that the military member's service has materially affected the ability to de-

fend or prosecute a claim. Essentially, the SCRA stops the clock on the statute of limitations at the moment the military

member is activated and it does not start to run again until the member is released from duty.

_Examples_

For example, someone negligently damages the member's car in State X on 2 January 2015. The member does not bring

a lawsuit for damages when, on 1 February 2016, she enters active-duty service. She remains on active duty until dis-

charged on 31 January 2017. Suppose State X's statute of limitations requires suit for negligent damage to cars to be filed

within three years from the date of the accident. Had the member not entered active service, she would have had until 2

January 2018 to bring suit. Under the SCRA, the one-year the member was in active service is not counted in the three

years to file suit. Thus, the member would have until 2 January 2019 to file suit.

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_**Chapter 20, Mobilization Matters**_

_**Section 20-5 Servicemembers' Civil Relief Act (Federal and State)**_

_**Page 7**_

Using the same dates in the above example, suppose that the military member had damaged someone else's car. In that

circumstance, the other party would also have until 2 January 2019 to bring suit against the military member. In both

examples, the accident occurred before the member entered active service. Nevertheless, the same results would be

reached if the accident had occurred after the member entered active service.

_**Exception! Internal Revenue Code (IRS)**_

The automatic "tolling" or stopping of the statute of limitations does not apply to matters involving the IRS. The IRS

may provide relief in its own right and may require a member on active duty to file some papers to claim those rights.

Members with IRS concerns should consult with a Judge Advocate.

**Specific Financial Relief Provisions Applicable to Particular Lawsuits and Situations**

The provisions discussed in this topic involve financial obligations of one kind or another. No attempt is made to list

every financial benefit provided by the SCRA or to discuss all requirements necessary to claim those benefits. The finan-

cial benefits discussed here are commonly encountered by Guard members. If members have other questions, they

should consult with a Judge Advocate. The following SCRA financial-type protections will be discussed:

1. Interest in Excess of Six Percent Per Year;

2. Leases - Evictions and Cancellations;

3. Installment Contracts and Repossession of Property;

4. Mortgage Foreclosure;

5. Storage Liens;

6. Insurance - Life, Health and Professional Liability;

7. Powers of Attorney;

8. Taxes - Income and Property;

9. No adverse credit actions; and

10. Motor Vehicle Leases

_**Six Percent Interest Rate**_

_The Cap_

Upon a member's entry onto active duty, and for as long as it lasts, all debts incurred BEFORE being entering the active-

duty military service that bear interest at a rate in excess of six percent per year may be capped at six percent, providing the member's ability to service that debt has been materially affected by entry into the active-duty military. This includes interest-bearing debts, such as mortgages, car loans, credit cards or business loans. This includes obligations incurred by

the military member individually and jointly with a spouse. During active-duty military service, the member only has to

pay interest on these debts at the rate of six percent simple interest per year. If the interest rate on the installment payment would ordinarily be in excess of this, the SCRA makes it very clear the excess interest is totally forgiven. When the

member's active service ends, the interest rate will revert to the pre-active duty rate. However, for mortgage obligations,

the reduced interest rate continues for one (1) year after the military member is released from active duty.

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_**Page 8**_

_To What Does the Cap Apply?_

"Interest" includes service charges, renewal charges, fees, or any charges (except bona fide insurance) resulting from

the obligation or liability.

The cap only applies to debts incurred or credit card purchases made before entry onto active duty. In determining when

a debt was incurred, the date that controls is the actual date of purchase, not the date when the charge was posted to an

account by a credit card company. If the member makes purchases after entry onto active duty, those purchases are sub-

ject to the normal interest rate applied to the credit card account and the interest on that credit card debt is not capped

at six percent. The interest rate cap on pre-mobilization debts is not lost because a member incurs new debts on an ac-

count after entry on active. The member simply pays six percent interest on the old debt and the usual interest rate on

the new debt.

_Claim the Cap_

To obtain the interest rate benefit, the creditor must be notified of the member's entry onto active duty. Attachment 4 to

this topic is a sample letter for this notice. Upon the member's notification to the creditor, the creditor must re-compute

the interest on the debt to the six percent rate as of the date on the member's orders. To facilitate this process, member

should attach a copy of their orders to the letter.

_Creditor's Remedy_

As previously stated, military members are only entitled to this benefit if their ability to service their debt is materially affected by their military service. Creditors can object to a military member's claim for a reduction to the six percent interest rate cap. To legally object to a military member's claim for an interest-rate reduction, the creditor must file a lawsuit. Otherwise, the creditor must reduce the interest rate to six percent. In the lawsuit, the creditor has the burden of

proving the member's ability to pay more interest than the six percent cap is "not materially affected by military service."

Many creditors now send form letters in response to a member's letter requesting the reduction in interest rate, asking

for information about the member's income before and after activation. If members or their dependents receive such in-

quiries, they should seek the assistance of a Judge Advocate. Whether a member's ability to service a loan is "materially

affected" by entry into active-duty military service is not limited to a simple comparison of income before and after entry

onto active duty. For instance, a military member's family may incur additional day care costs as the result of the mem-

ber being deployed and not being available during the periods of time he/she would ordinarily watch the kids. Or, addi-

tional expenses for living or utilities, such as rent and telephone, may be incurred. Whether a member's ability to service

the debt has been materially affected by entry onto active duty is a matter for a court, not the creditor, to decide. But, to avoid the anxiety a lawsuit can bring, members should consult with a Judge Advocate about their situations as a well-crafted letter to a creditor may convince the creditor that, although the income levels are comparable, the attendant addi-

tional expenses entitle the member to the benefit of the act.

When computing income comparing pre-entry onto active-duty income with active-duty income, the military member

must include all military benefits received while on active duty such as BAH, BAS, special duty pay, imminent danger or

hostile fire pay and foreign duty pay.

_**AGRs**_

AGRs are not entitled to the rights and benefits of the SCRA unless activated into service under Title 10 of the United

States Code. Upon entry onto active duty, an AGR's base pay will remain the same and the AGR may receive slightly in-

creased benefits. Nonetheless, the AGR may be entitled to claim the interest rate cap if the AGR can show entry onto ac-

tive duty caused additional expense above and beyond any increase received in benefits.

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_**Page 9**_

_Pitfalls to Avoid_

As stated above, if the creditor can prove in court that a military member's entry into active-duty military service does

not materially affect the ability to pay interest above six percent, one is not entitled to the six percent interest rate cap for the debt(s) owed to that creditor. Should the creditor sue and win, the military member will be liable to pay one's

own legal fees and court costs and may be held liable to pay any penalties the installment agreement imposes for making

late payments or requiring the creditor to initiate a collection action.

_Special Problems for Joint Debtors_

If the member and spouse jointly incur debt prior to the member's entry onto active duty, the interest rate as to both the

member and the spouse shall be capped at six percent. For other joint debts not with a spouse, the six percent cap does

not apply to the joint debtor. For instance, if a member and her sister owe money on a loan that bears an interest rate of

10 percent, the sister is not entitled to interest-rate relief. The rate of interest remains at ten percent on that loan.

**Leases and Evictions**

_**Evictions**_

The SCRA prohibits eviction, without a court order, of service members and their family members from rented housing

where the rent is $3.047.45 (as of 2012) or less per month. (The statute requires this amount to be adjusted annually for

inflation.) Nor may the landlord subject the premises to distress, which is the seizure of the tenant's property, to satisfy an arrearage in the payment of rent. If the protection applies, it applies whether the member and/or his family began living in the rental housing before or after the military member's entry onto active duty.

The court may issue a stay of proceedings to evict the tenant or distress the premises, but the military member does not

have the right to as long a stay as in some other situations. A court can, on its own motion, issue a stay for a period of 90

days, with discretion, to order a longer or shorter period as justice and equity may require. Or, it can issue a stay upon

the member's request if the military member requests a stay and demonstrates ability to pay rent under the lease is mate-

rially affected by military service. The set standard is 90 days, but the court may order a longer or shorter stay as the circumstances and justice and equity warrant. When a stay is ordered, the court may also grant the landlord equitable relief.

Under SCRA, a court is empowered under Section 531(b)(1)(B) to "adjust the obligation" between the landlord and the

service member. While the term is not further explained, this provision apparently allows a court to change the terms of

the agreement between the landlord and tenant. Thus, a court could order the member to pay a reduced amount of rent

while performing active duty military service. In ordering a reduction in rent, the court can, IAW Section 531(d), order

the rent paid by allotment.

If the protections do apply, the eviction can occur, but only after a court gives permission. This means that, even if the

state law or the lease does not require a court order to evict a tenant, the SCRA, a federal law that supersedes state law

or an agreement within a lease, imposes that requirement. If the landlord evicts a person entitled to the protections of

the SCRA without first obtaining a court order, the SCRA provides for criminal penalties as fines, jail, or both. Similarly, a landlord is also prohibited by the SCRA from holding a military member's household goods as security for unpaid rent,

unless a court permits it. If the rent is more than $3.047.45 per month in 2012 or the adjusted amount in future years, a

tenant is not entitled to the benefits and protections of the SCRA. Thus, if the rent exceeds the maximum allowed by the

SCRA, the landlord may proceed under applicable state law to evict the military member and family members.

_**Cancellation**_

The SCRA permits an activated member to cancel a lease under two circumstances. First, the member may cancel any

lease executed by or on behalf of a person who subsequently, during the term of the lease, enters active-duty military

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_**Section 20-5 Servicemembers' Civil Relief Act (Federal and State)**_

_**Page 10**_

service. Or, second, a person on active duty may cancel a lease entered into after entry onto active duty if the member

receives PCS orders or orders to deploy for 90 days or more.

To terminate the lease, the military must give the landlord written notice. The notice may be delivered in-person, by pri-

vate business carrier such as commercial mail or package delivery service or by U.S. mail, return receipt requested, deliv-

ered to the landlord or agent at the address designated by the landlord. For leases in which rent is paid on a month-to-

month basis, the tenant must give the landlord a minimum of 30 days advance notice before the next rent payment is

due. If rent is due on the first day of the month, a notice given on May 15th can cancel the lease no earlier than July 1st.

For any other type of lease, the termination takes place on the last day following the month in which proper notice is

given. For example, a notice given on September 15th can terminate the lease no earlier than October 31st.

A member's right to cancel a lease does not depend on whether military service has "materially affected" his ability to

maintain the lease. The member's entry onto active duty or receipt of deployment orders for more than 90 days while

already on active duty of orders (including a PCS), plus the proper written notice and lead time are all that are required

to allow the member to cancel a lease.

_**Security Deposits and Advance Payment of Rent**_

If the landlord is holding a security deposit, it must be returned upon termination of the lease, less any outstanding costs such as late charges, damages to the premises or unpaid rent, just as if the member had remained in the premises until

expiration of the lease. If rent was paid in advance, the landlord must refund the unearned portion of the rent.

_**Business Leases**_

The right to cancel the lease or seek to adjust the obligation in rent applies equally to business as to residential leases.

_**Practical Tip**_

This right to cancel a lease is important because it gives the member and family members the flexibility to seek less ex-

pensive housing and avoid the potential for eviction if entry into active-duty military service will cause hardship in pay-

ing rent or needless expense. The right to cancel a business lease allows the member to stop incurring debt for a prem-

ises that cannot be used due to military service. The right to seek to adjust the obligation provides the member with a

tool to try to keep any rent obligation manageable, but the member needs to understand a court does not have to adjust

the obligation simply because the member has entered active service. As a consequence, a military member could wind

up with a hefty bill for unpaid rent if the court denies an application to adjust the rent if the member has not otherwise

cancelled the lease.

_**Summary**_

In summary, the elements of the lease cancellation protection are:

1. Before entry onto active duty, a lease was entered into and premises were actually occupied or were intended to be oc-

cupied by the military member or family members; or

2. The member was on active duty and occupying the premises when the member received orders to deploy for more

than 90 days or to PCS;

3. Any kind of property - residential or business - is covered;

4. Amount of rent is irrelevant;

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_**Page 11**_

5. Whether or not military service "materially affects" the member's ability to continue the lease is irrelevant;

6. Member must give landlord written notice of at least 30 days before the lease may be canceled, and the duty to pay

rent stops;

7. The running of the 30 days differs if the rent was due monthly or other than monthly; and

8. The member must enclose a copy of his orders with a notice of lease termination in order to trigger these protections.

**Installment Contracts and Repossession of Property**

An installment contract is an agreement to buy or to lease in which a person pays so much down and agrees to pay the

remainder in monthly installments. Under each contract, the buyer agrees, for all practical purposes, the seller can repos-

sess the property and sell it to the highest bidder if payments are not made when due.

Upon the repossession sale, depending upon the terms of the contract, the buyer may still be liable to pay the difference

between the sale price and the amount due under the agreement. The SCRA provides military members with some lim-

ited protection.

If, before entering active duty, the military member executes either an installment contract for the purchase of real or personal property, or a lease contract with an option to buy real or personal property, and, if he paid a deposit or at least one installment under the contract, then the seller cannot exercise any right or option under the contract to rescind or terminate the contract, to repossess the property for nonpayment of any installment due, or to breach the terms of the con-

tract, without a court order.

This means if a military member paid a deposit or made just one payment under an installment contract, the seller must

start an action in court if it wants to repossess the property. Similarly, the seller cannot rescind or terminate the agree-

ment for breach of its terms without a court order. (The member should ensure the seller knows the military member

has entered active-duty military service. Otherwise, the seller may not be on notice that it needs a court order before re-

possessing the property.)

If the seller seeks a court order to terminate or rescind the agreement or to repossess the property, the court may order

the seller to refund all or a portion of all of the installments or deposits paid to date, stay the proceedings on its own motion, stay the proceedings upon application of the military member when the military member demonstrates his ability

to fulfill the terms of the agreement is materially affected by his military service or make any other order as is equitable to preserved the interests of the parties.

If the seller violates the SCRA and repossesses the property without a court order, criminal penalties may be imposed,

including fines, jail or both. This protection applies whether the failure to pay occurred before or during active-duty service as long as the repossession has not occurred as of the time the member entered active-duty service.

If a member enters into an agreement with a seller after entry onto active duty, the SCRA does not offer protection. A

member who has a problem with a seller pursuant to an agreement executed before entry onto active duty, should not

renegotiate the deal after entry onto active duty without first consulting an attorney or a judge advocate. The renegoti-

ated deal will not be subject to the protections of the SCRA because it was reached after entry onto active duty.

**Cell Phone Contract**

A military member may terminate or suspend a cell phone contract if the military member receives orders to relocate for

not less than 90 days to a location that does not support the contract. The military member may cancel or suspend the

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_**Section 20-5 Servicemembers' Civil Relief Act (Federal and State)**_

_**Page 12**_

cell phone contract without penalties or extra fees as long as the deployment or PCS materially affects the ability to sat-

isfy the contract or utilize the service. In the event the military member's cell phone is covered under a family plan, the

other members of the family cannot suspend or terminate their portion of the contact unless the family member is accom-

panying the military member.

**Mortgage Foreclosure**

If, before entry into active-duty service, a military member owned real property secured by a mortgage or trust deed,

such as a home, and still owned the property when a secured creditor, such as the bank that executed the mortgage, files

an action alleging the member breached his obligations under the mortgage agreement, the creditor cannot foreclose on

the property without a court order.

Once an action is commenced, or within one year after the military member's service obligation has ended, a court is em-

powered to stay the proceedings for as long as justice and equity require. A court may grant a stay on its own motion or

upon application of the military member who applies for relief and demonstrates the ability to comply with the terms of

a mortgage or trust agreement was materially affected by entry onto active duty.

A court also has the authority to "adjust the obligation." While this term remains unexplained, it seems apparent the

court can order the monthly payment reduced. Contrary to a lease situation where a court can order payment by allot-

ment, no such authority for payment of a mortgage obligation adjusted pursuant to the act is found in the SCRA.

Here again, military members should notify their creditors they have entered active-duty military service and include a

copy of their orders. Even before the SCRA gave courts the authority to "adjust the obligation," many mortgage holders

were willing to work with individuals who, but for the financial hardship imposed by the person's entry onto active duty,

were otherwise good credit risks. Now that the SCRA allows a court to "adjust the obligation," creditors may be inclined

to enter into such agreements on their own knowing that a court could make an order less favorable to them. If military

members experience or anticipate problems servicing mortgage or trust obligations, they should consult with a Judge Ad-

vocate early. The Judge Advocate may be able to assist the member in contacting the creditor and make a financial ar-

rangement compatible with the member's military income for the duration of his active service.

A foreclosure action commenced during the military member's period of service, or within one year after the military

member's service obligation has ended, may proceed with a court order. The court is required to approve of the sale be-

fore it occurs and to approve the sale after its completion. Also, a foreclosure sale may proceed if the military member

waives the protections of the SCRA after entry into the active-duty military. Such a waiver must be in a writing separate

from the contract, lease, mortgage or other document creating the civil obligation.

**Storage Liens**

A storage company cannot sell a military member's property to cover its charges during active-duty service and for 90

days after the termination of service without a court order. Once a proceeding is commenced in court, the court may stay

the proceedings on its own or application of the military member if the member demonstrates the ability to pay was ma-

terially affected by military service. The court may enter any order the court determines justice and equity require. The

court may also "adjust the obligation" of the parties.

**Insurance**

_**Life Insurance**_

The SCRA provides some protection against the lapsing, terminating or forfeiture of life insurance for nonpayment of

premiums. To receive these protections:

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_**Section 20-5 Servicemembers' Civil Relief Act (Federal and State)**_

_**Page 13**_

1. The policy must have been in force for not less than 180 days before the member entered active-duty military service;

2. The SCRA does not cover SGLI or other group term life insurance. SCRA does cover individual term life insurance;

3. If the policy is protectable and the member applies for that protection, the Veterans Administration will guarantee the

premiums and interest on the policy for the period of active duty. This guarantee will prevent the policy from lapsing, or

being terminated or forfeited during this period. However, the VA guarantee applies only to a maximum of $250,000.00

of insurance or the maximum benefit available through SGLI, whichever is greater. If a member has policies providing

coverage in excess of $250,000.00, the VA will work it out with the insurance companies so the premiums for a total of

$250,000.00 of coverage are guaranteed;

4. The VA guarantee does not ultimately relieve a member from paying these premiums. The member must first file a

form with the VA requesting premium guarantee. The form is available through either the VA or the member's insurance

company. The VA will then determine if the policy is covered under the SCRA. (If the VA determines the policy is not

covered, its decision may be appealed to the Board of Veterans' Appeals. Judicial review is also available pursuant to

Chapter 71 of Title 38 of the United States Code.) If the policy is covered, the VA will issue its guarantee to the mem-

ber's insurance company that any premiums and interest on the policy accruing during the active-duty service and for

two years thereafter. During this period, the VA does not pay the premiums, it just guarantees they will be paid. The

member is eventually required to pay the insurance company those premiums not paid while performing active-duty mili-

tary service and for two years thereafter, if applicable. If, at the end of the guarantee period, the member has not paid the premiums, the VA will pay them, but then the VA will recoup payment from the member;

5. If, at the expiration of insurance protection under this title, the cash surrender value of a policy is less than the

amount due to pay premiums and interest on premiums on the policy, the policy shall terminate. Upon such termination,

the United States shall pay the insurer the difference between the amount due and the cash surrender value;

6. While a policy is protected under the SCRA, a member may not collect dividends or receive any monetary benefit from

the policy without the approval of the VA; and,

7. The member is entitled to this protection if entry into active military service materially affects the ability to pay the premiums.

The SCRA also protects life insurance policies assigned to third parties to secure an obligation. The assignee may not ex-

ercise any right or option regarding the policy for one year after the member is released from active duty without a court

order except if:

1. The assignee is the life insurer and the assignment is made by a member with a loan secured by the insurance policy;

2. The member consents;

3. Premiums are due and unpaid; or

4. The insured dies.

Premiums payment guaranteed by the VA are not considered unpaid premiums for the purpose of the exceptions.

_**Health Insurance**_

If health insurance is provided and paid for by the member's employer, the employer is legally not required to pay for the

member's health insurance during the member's mobilization. (There is an exception to this rule if the military duty is

less than 31 days. _See_ , _Deskbook_ article, " _Uniformed Services Employment and Reemployment Rights Act_.")

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_**Chapter 20, Mobilization Matters**_

_**Section 20-5 Servicemembers' Civil Relief Act (Federal and State)**_

_**Page 14**_

Instead, the Uniformed Services Employment and Reemployment Rights Act requires employers to notify members and

their family members of their right to elect to continue to be covered under the employer's health insurance, but at their

expense, not to exceed 102% of the premium, during the member's term of active-duty military service. The member

must be offered this continuation of coverage and the employer may not terminate the coverage should the military mem-

ber elect to continue it despite the member's coverage under a military health plan or TRICARE. However, if the em-

ployer elects to continue paying for a member's and family's coverage during the member's active duty military service,

that payment remains deductible to the employer and is not taxed to the member as income.

Upon the member's release from active duty, the member has 120 days to apply for reinstatement to the insurer's health

plan. The insurance company may not impose any exclusions or waiting periods for the member or persons covered by

the member's policy if the insurance policy was in effect on the day before the member entered active duty and the

health insurance was terminated during the period of active duty. There is one exception to the "waiting period" and "ex-

clusions for pre-existing conditions" rules. If the member became disabled while on active duty, applied to the VA for

benefits for that disability, and the Secretary of Veterans Affairs has determined the disability was incurred or aggravated in the line of duty, then coverage for that condition does not have to be provided by the health insurance company because the member is entitled to receive VA benefits for that disability. No such exceptions apply to family members.

_**War-Exclusion Provisions**_

Many life, accidental death and dismemberment, and long-term disability insurance policies contain language excluding

or limiting coverage for death, dismemberment and long-term disability resulting from war or active-duty service. Mem-

bers should review their policies with their agent to determine whether any such exclusions exists. Such exclusions are

legal and the SCRA provides no protection against them.

These "war-type" exclusion provisions are usually not found in regular group term life insurance like those provided by

employers and organizations, including those with some unofficial military connection, such as NGAUS and EANGUS.

_**Professional Liability Insurance**_

The SCRA provides relief to medical, legal and "other professionals as determined by the Secretary of Defense" for profes-

sional liability or "malpractice" insurance. The relief and protections for these professionals generally include the right to have these policies suspended during active-duty service and reinstated after active-duty service with no adverse effect to

the member concerning coverage during the suspension period. Also, it includes the right to have actions against the

member for malpractice that were either pending before mobilization or which could have been brought during mobiliza-

tion stayed until the mobilization is over.

_Suspension and Reinstatement of Policies_

A professional seeking the benefit of this provision must request, in writing, suspension of the professional liability pol-

icy during active-duty military service. No premiums will accrue or have to be paid during active-duty service. Any premi-

ums already paid that apply to the suspension period will be either refunded or applied to premiums due upon the pol-

icy's reinstatement at the option of the professional.

Professionals must request reinstatement, in writing, within 30 days of their release from active duty. The right to rein-

statement is further conditioned on the professionals' paying the premium due upon reinstatement of the policy within

30 days after receiving the premium-due notice from the insurer. The policy must be reinstated for a period not less than

the balance of the period for which coverage would have continued under the policy had not the coverage been sus-

pended. During this minimum period of reinstatement of coverage, the premium cannot be increased unless it was in-

creased for all persons with the same coverage during the military member's period of active-duty service.

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_**Chapter 20, Mobilization Matters**_

_**Section 20-5 Servicemembers' Civil Relief Act (Federal and State)**_

_**Page 15**_

_Applicable Coverage_

The protections here are based upon the member's immunity from suit while mobilized because he is rendering profes-

sional services to military patients or clients. Because the military member has requested his policy be suspended during

his period of active-duty service, he is not covered under his civilian insurance for any professional conduct during the

suspension period that gives rise to a claim, including any failure to act in a professional capacity. If the member antici-

pates providing professional civilian services while performing active-duty service, he should continue his professional

liability coverage as the immunity provided by the military extends only to claims that arose while performing services

within the scope of military duties.

_Stays of Pending and Contemplated Actions_

Civil or administrative actions for professional negligence pending before mobilization are subject to being stayed as pre-

viously discussed in this section. Actions begun during the suspension period based upon claims of professional negli-

gence that would have been covered under the policy if it had not been suspended are stayed during the suspension pe-

riod (active duty) and are deemed to have been filed on the first day the policy is reinstated.

In keeping with the overall scheme of the SCRA - that its protections are a shield and not a sword - the plaintiff's right

to make a claim against the professional is protected from the expiration of any statute of limitation during the profes-

sional's active-duty service. The time the professional performed military service is excluded in computing any applicable

statute of limitations for the plaintiff to commence suit.

If a military professional dies during the suspension period, the stay terminates on his date of death, and his estate is covered to the same extent as if he died while coverage was in effect but before a claim was filed.

**Missing In Action**

_**MIA Status after SCRA Requirements and Obligations**_

Any requirement or obligation under the SCRA that begins or ends with the death of a service member does not begin or

end until the member is reported to or determined by the service Secretary as dead or until a court of competent jurisdic-

tion determines the matter to be dead.

_**Powers of Attorney**_

A power of attorney executed by a military member who is classified as "missing in action" is automatically extended if:

1. Executed while the member was in the military service or before entry into the military service but after the military

member received a call to report for military service or could receive a call to report for military service;

2. Designates the military member's spouse, parent or other named relative as the attorney-in-fact for certain, specified

or all purposes; and,

3. By its terms, expires after the military member entered a "missing in action" status.

**Taxes**

_**Taxes on Property**_

No property owned by a military member on active duty or owned by a military member on active duty jointly with fam-

ily members can be sold without a court order to enforce the collection of a tax that became due before or during the

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 20, Mobilization Matters**_

_**Section 20-5 Servicemembers' Civil Relief Act (Federal and State)**_

_**Page 16**_

member's entry onto active duty. Additionally, a determination must be made that the member's entry onto active duty

did not materially affect the ability to pay the tax. Finally, a court may stay a proceeding to collect an unpaid tax for up to 180 days following the member's release from active duty.

Property covered by the SCRA includes motor vehicles, residences or real estate owned for professional, business or agri-

cultural purposes. Property sold to satisfy tax obligations may be redeemed, or purchased back, within 180 days follow-

ing termination of the active-duty service.

Interest and penalties on unpaid property taxes is limited to 6 percent.

_**Income Taxes**_

If a military member's ability to pay income taxes, federal, state or local, has been materially affected by military service, the member may obtain a deferral of payment for up to 180 days after release from active duty. To obtain this deferral,

the military member needs to notify the tax authority. While the statute does not prescribe a form of notice, the tax

authority should be notified in writing and the member advised to outline why entry into active military service has mate-

rially affected the ability to pay taxes. Interest and penalties may not be assessed during a SCRA deferral.

_**State Income Tax**_

The payment of state income tax depends upon whether a military member is a "domiciliary" or "resident" of the state.

A military member does not lose a domicile or residence because of absence from a state performing active-duty military

service. The member does not become a domiciliary or resident of a state simply because of presence in a state pursuant

to military orders. Active-duty military pay earned in the state of a military member's duty station is not taxable by that

state unless it is also the state of the member's domicile or legal residence.

_**The Military Spouses Residency Relief Act (MSRRA) and Taxation**_

In November, 2009, the MSRRA became law and amended the SCRA. Under this law, a military spouse present with a

military member in a particular state under military orders does not have to pay state income tax on wages earned in that

state, unless that state is also the spouse's domicile.

**No Adverse Credit Actions**

Under the SCRA, military members are protected from the following creditors undertaking these described adverse ac-

tions because a member performs military service or exercises rights under the SCRA:

1. A creditor cannot determine the military member cannot pay a debt;

2. A creditor cannot deny or revoke credit;

3. A creditor cannot change the terms of an existing credit arrangement;

4. A creditor cannot refuse to grant the member credit in substantially the same amount or terms requested;

5. No one can notify a credit agency or give an adverse report or rating relating to a member's credit-worthiness for con-

sumer credit; and

6. An insurer cannot refuse to insure the member for any type of insurance.

A classic adverse action is a credit report indicating a military member invoked the right to a 6 percent interest cap.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 20, Mobilization Matters**_

_**Section 20-5 Servicemembers' Civil Relief Act (Federal and State)**_

_**Page 17**_

**Motor Vehicle Leases**

A person called to active duty for 180 days or more or active-duty military members who receive PCS orders outside of

the United States or to deploy with a military unit for 180 days or more may terminate the lease of a motor vehicle used

by the military member or family members. The right applies to members who are called to active duty for less than 180

days but whose orders are extended to 180 days or more. To assert this right, the member must notify the entity which

leased the vehicle in writing of the intent to terminate the agreement and return the vehicle to the renter within 15 days

of the notice of termination. Upon return of the vehicle, the military member should obtain a receipt for its return along

with a statement of mileage. This prevents claims that the vehicle was not returned when stated or monies due for exces-

sive mileage. Early termination charges are prohibited but charges for excess wear and tear, use and mileage are permissi-

ble. All obligations under the lease will be prorated to the date of termination.

_**KWIK-NOTE: Servicemembers' Civil Relief Act briefing guides, with state law supplements, should be distributed to unit**_

_**members as part of the Commander's Pre-Mobilization Legal Counseling, Legal Assistance and Preventive Law Programs.**_

**RELATED TOPICS:**

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****

****

****

****

****

****

****

****

****

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**SECTION**

Line of Duty Determinations

1-19

Remission and Waiver of Indebtedness

1-33

Benefits

4-2

TRICARE and DEERS

4-3

Disability of National Guard Members

4-4

Veteran and Casualty Benefits

4-8

Active Duty - Air National Guard Members

11-2

Active State Duty

11-3

Judge Advocate Support for ANG Units Deploying Overseas

17-5

Legal Assistance Program

17-8

Preventive Law Program

17-15

Mobilization of the Air National Guard (Federal And State)

20-2

Pre-mobilization Legal Counseling

20-4

Civilian Re-Employment Rights for Guard Members

23-8

Garnishment

23-15

Powers of Attorney

23-19

Counseling

24-7

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 20, Mobilization Matters**_

_**Section 20-5 Servicemembers' Civil Relief Act (Federal and State)**_

_**Page 18**_

_Attachment 1_

**MEMBER'S NOTIFICATION OF CLAIMING PROTECTION OF SERVICEMEMBERS' CIVIL RELIEF ACT**

Date:

Member's name

Member's address

SSN#:

Acct #:

To: Name and address of civilian court, agency, business or person

Dear (Judge) (Sir/Madam):

Please be advised I have been called to active duty in the United States Air Force on ______________________________,

by the President pursuant to 10 U.S.C. 12304.

This is to certify I am a member of the (unit's name and address) from which verification of such military service may be

obtained.

As a military member, I hereby notify you I am requesting any and all protections of the Servicemembers' Civil Relief Act

of 2003 (and applicable state statute or regulation).

[In this paragraph, request specific protections (Lease cancellations, etc.)].

Your cooperation will be appreciated.

Thank you.

Member's Name/Rank/Signature

_**Air National Guard Commander's Legal Deskbook**_

742

_**Chapter 20, Mobilization Matters**_

_**Section 20-5 Servicemembers' Civil Relief Act (Federal and State)**_

_**Page 19**_

_Attachment 2_

**MEMBER'S REQUEST TO STAY COURT PROCEEDING PURSUANT TO SERVICEMEMBERS' CIVIL RELIEF**

**ACT**

Date:

Member's name

Member's address

Case # (If unknown, then SSN#):

To: Name and address of civilian court, agency, business or person RE: (military member's name / Case)

To Whom It May Concern:

I am an Airman on active duty orders in the United States Air Force, who is apparently the defendant in an action now

pending before your court. I am stationed at ______ to fulfill my military obligation in service to the country. I am writing to request a stay of the proceedings pursuant to the Servicemembers Civil Relief Act (50 U.S.C. App. 522). I request this

stay of proceedings because my military assignment to __________ materially affects my ability to appear at this proceed-

ing due to _______.

Federal law requires a stay of proceedings for a minimum of 90 days for service members on active duty (50 U.S.C. App.

522 (a)(1)). This stay may be extended if my military service materially affects my ability to appear (50 U.S.C. App. 522

(d)). I anticipate I will be unable to attend any hearings, present any type of defense, or effectively protect my interests in the matter in question until (Day/Month/Year) at the earliest because of such military duties.

I request you inform me at (address), or by email at ______, of any action taken regarding this request.

Sincerely,

Member's Name/Rank/Signature

_**Air National Guard Commander's Legal Deskbook**_

743

_**Chapter 20, Mobilization Matters**_

_**Section 20-5 Servicemembers' Civil Relief Act (Federal and State)**_

_**Page 20**_

_Attachment 3_

**COMMANDER'S LETTER IN SUPPORT OF MEMBER'S REQUEST TO STAY COURT PROCEEDING PURSU-**

**ANT TO SERVICEMEMBERS' CIVIL RELIEF ACT**

Date:

Clerk of Court

Address

RE: (military member's name)

(Case Number if Known/SSN if Not)

To Whom It May Concern:

I am the Commander of ___________. __________ is assigned to my unit, ___, at ____________. His current military du-

ties prevent him from appearing at the hearing that is apparently scheduled for _________, and leave is not authorized for

that purpose at this time.

Sincerely,

(NAME, Rank),

Commander, (Unit)

_**Air National Guard Commander's Legal Deskbook**_

744

_**Chapter 20, Mobilization Matters**_

_**Section 20-5 Servicemembers' Civil Relief Act (Federal and State)**_

_**Page 21**_

_Attachment 4_

**MEMBER'S SIX (6%) PERCENT INTEREST NOTIFICATION LETTER PURSUANT TO SERVICEMEMBERS'**

**CIVIL RELIEF ACT**

Date:

Member's name

Member's address

SSN#:

Acct #:

To: Name and address of civilian court, agency, business or person

Dear _______________________:

On _____________________ I began a __________ period of active duty with the United States Air Force.

(As a civilian, my monthly pay was approximately _________________ Dollars, but my present military pay is only

$_________________ per month. Because of this sharp reduction in my income, I am not able to make the (monthly) pay-

ments we originally agreed upon).

[These last two sentences are optional - your SJA may advise this need not be included in the initial letter unless the re-

cipient so requests, because it is the creditor's obligation to prove military service has not materially affected the ability to pay at the interest rate above 6%. Many creditors will not bother, but will just adjust the interest rate down to 6% because it is less expensive to do that than to specifically inquire and sue in court to avoid the reduction to 6% for a particular member].

I have been advised by my military legal assistance officer that during the period of military service, you cannot, in the

absence of a court order to the contrary, charge me interest or finance charges in excess of 6% per annum. Please adjust

my account to comply with the maximum allowable rate.

Thank you.

Member's Name/Rank/Signature

_**Air National Guard Commander's Legal Deskbook**_

745

_**Chapter 20, Mobilization Matters**_

_**Section 20-6 Stop-Loss**_

_**Page 1**_

**Stop-Loss**

**Updated by Lieutenant Colonel Sue Ellen Schuerman, April 2015**

**AUTHORITY** : 10 U.S.C. 12305; AFI 10-402, _Mobilization Planning_ (1 May 12); AFH 10-416, _Personnel Readiness and Mobilization_ (22 Dec 94); Sec Def Memorandum: _Utilization of the Total Force_ , January 19, 2007. 

## INTRODUCTION

Federal law permits the President to suspend any provision of law relating to promotions, retirements and separations

during any period when members of any reserve component are on active duty under involuntary call-up or mobilization

authorities. The exercise of this option is known as Stop-Loss.

In January, 2007, Secretary of Defense Robert Gates directed all services to minimize the use of Stop-Loss and thereafter

directed a phased suspension of the program. Active use of Stop-Loss by the Army ended as of January 1, 2010. While

the services still retain the legal authority to suspend the separation of servicemembers, any renewed use of Stop-Loss

will require an emergency situation requiring critically short skills, will be limited in duration and will require approval of the Services Secretary.

_**KWIK NOTE: In call-ups or mobilization, watch for Stop-Loss messages.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Active Duty - Air National Guard Members

11-2

Mobilization of the Air National Guard (Federal and State)

20-2

_**Air National Guard Commander's Legal Deskbook**_

746

**Chapter 21, Motor Vehicle Matters**

**Table of Contents**

**Section**

21 - 1 Table of Contents

21 - 2 Commercial Driver's License Requirement – Waiver

21 - 3 Driver's Licenses

21 - 4 Vehicle Registration

21 - 5 Motor Vehicle Accident Reporting

21 - 6 Motor Vehicle Rules – Military Bases

21 - 7 Suspension of Base Driving Privileges

_**Air National Guard Commander's Legal Deskbook**_

747

_**Chapter 21, Motor Vehicle Matters**_

_**Section 21-2 Commercial Driver's License Requirement - Waiver**_

_**Page 1**_

**Commercial Driver's License Requirement - Waiver**

**Updated by Lt Col Sue Ellen Schuerman, April 2013**

**AUTHORITY:** 49 U.S.C. §§ 31301-31317; 49 CFR 383.3; AFI 24-301, _Vehicle Operations_ (1 Nov 08); AFI 24-302, _Vehicle_ _Management_ (26 Jun 12).

**THE STATUTE**

**** In 1986, Congress passed the Commercial Motor Vehicle Safety Act of 1986. The law was amended by the Commercial

Motor Vehicle Enhancement Act of 2012 and is codified at 49 U.S.C. §§ 31301-31317. The statute improves highway

safety by ensuring drivers of large trucks and buses are qualified to operate those vehicles and to remove unsafe drivers

from the highways. The law does not require drivers to obtain a separate Federal license, but it establishes minimum na-

tional standards that states must meet when issuing commercial driver's licenses.

The statute requires an individual who operates a commercial motor vehicle to possess an appropriate state license to

operate such vehicle and prohibits that individual from possessing more than one commercial driver's license. Notably,

within 30 days of a conviction for any traffic violation, except parking, a driver must notify his/her employer, regardless

of the violation or type of vehicle driven at the time.

**DEFINITIONS**

A commercial motor vehicle is defined as any vehicle used in commerce to transport passengers or property that (A) has

a gross vehicle weight rating or weight of at least 26,001 lbs.; (B) is designed to transport at least 16 passengers includ-

ing the driver; or (C) is used to transport material designated as hazardous under 49 U.S.C. 5103.

By Air Force definition, a motor vehicle includes only those vehicles designed and operated principally for highway trans-

portation. It does not include vehicles designed to support combat or tactical operations or training for these operations.

**WAIVER OF LICENSE**

Section 31315 and its implementing regulation, 49 CFR 383.3, require states to exempt certain DoD personnel from the

law's licensing requirements. The waiver applies to active duty military personnel; members of the reserves; National

Guard members on active duty, including personnel on full-time National Guard duty, personnel on part-time training

and inactive duty training, and National Guard military technicians. Active duty includes state active duty for the Na-

tional Guard.

Guard members, including military technicians performing official duties, are not required to meet the licensing require-

ment of the Act. Employees who must meet licensing requirements include reserve technicians and federal civilian em-

ployees who are not National Guard military technicians.

_**KWIK-NOTE: National Guard members do not need a special state license to operate military vehicles while on duty.**_ ****

**RELATED TOPICS:**

**SECTION**

Driver's Licenses

21-3

_**Air National Guard Commander's Legal Deskbook**_

748

_**Chapter 21, Motor Vehicle Matters**_

_**Section 21-3 Drivers' Licenses**_

_**Page 1**_

**Drivers' Licenses**

**Updated by Lt Col Sue Ellen Schuerman, April 2013**

**AUTHORITY:** Servicemembers Civil Relief Act, 50 U.S.C. App. § 501 _et seq_.: applicable state law; AFI 24-301, _Vehicle Operations_ (1 Nov 08); AFI 91-207, _The U.S. Air Force Traffic Safety Program_ (27 Oct 11); _Johnson v. Maryland_ , 254 U.S. 51

(1920).

**CIVILIAN LICENSE**

**** The Servicemembers Civil Relief Act (SCRA) allows active duty military members to keep their state of legal residence even though they may be absent for many years. As long as the member is absent because of military orders and does not

desire to change their state of legal residence, the SCRA preempts state residency laws and allows the military member

to "carry" their state residency with them. As a result, many military members maintain their license in their state of

residence to avoid having to obtain a new license each time they receive permanent change of station (PCS) orders.

If a military member takes action to change their state of legal residence by registering to vote, registering their car, buying a home, and/or declaring a state as their residence for tax purposes, they must obtain a driver's license from that

new state of residence. If the member got a driver's license at their last military assignment but did not change their

state of residence, they must get a license from either the state they are living in or their state of legal residence.

In 2009, Congress amended the SCRA to include the Military Spouses Residency Relief Act (MSRRA) to allow military

spouses to maintain their state of legal residence for tax purposes. However, whether a spouse must obtain a new

driver's license in each new state the spouse lives in is a matter of state law and is not affected by the MSRRA.

**MILITARY LICENSE**

In _Johnson v. Maryland_ , the U.S. Supreme Court held that, if a military member or technician possesses a valid civilian driver's license and an AF Form 2293, _U.S. Air Force Motor Vehicle Operator Identification Card_ , if required for the class of government vehicle the driver is operating, a state cannot require the member to also obtain that state's license for the class of government vehicle being operated over a state road to perform the member's official duty. In such cases, three licenses are not needed.

_**KWIK-NOTE: ANG members must always possess a valid state driver's license, and if applicable, a U.S. Government Motor**_

_**Vehicle Operator Identification Card before they may operate military vehicles.**_ ****

**RELATED TOPICS:**

**SECTION**

Commercial Driver's License Requirement – Waiver

21-2

Vehicle Registration

21-4

Motor Vehicle Rules – Military Bases

21-6

Suspension of Base Driving Privileges

21-7

_**Air National Guard Commander's Legal Deskbook**_

749

_**Chapter 21, Motor Vehicle Matters**_

_**Section 21-4 Vehicle Registration**_

_**Page 1**_

**Vehicle Registration**

**Updated by Lt Col Sue Ellen Schuerman, April 2013**

**AUTHORITY:** Servicemembers Civil Relief Act, 50 U.S.C. App. § 501 _et seq_.; applicable state law.

**WHERE TO REGISTER VEHICLE**

**** Section 571(g)(2) of the Servicemembers Civil Relief Act (SCRA) provides that the term "taxation" includes "licenses, fees, or excises imposed with respect to motor vehicles and their use" but only if the servicemember paid the license, fee

or excise required by the member's home state. As long as the military member registers and licenses their vehicle in

their home state and pays the applicable fees, they do not have to comply with the registration requirements of the state

of military assignment.

If the military member does not register their vehicle in their home state, then they must do so in the state of assign-

ment. The member does not, however, have to pay the entire amount assessed if a portion of the license, fee or excise

exceeds the amount necessary to register and license the vehicle. Fees over the cost of issuance and administration are

barred by section 571.

In 2009, Congress amended the SCRA to include the Military Spouses Residency Relief Act (MSRRA) to allow military

spouses to maintain their state of legal residence for tax purposes. However, whether a spouse must register a vehicle

titled in their name in each new state the spouse lives in is a matter of state law and is not affected by the MSRRA.

**CHANGE IN UNIT OF ASSIGNMENT**

When a military member's assignment changes and their vehicle is registered in the previous state of assignment and

that state is not the member's legal residence, the member must register the vehicle in either the new state of assign-

ment or state of legal residence. If a member maintains registration in their state of legal residence, no action is required when the military assignment changes, other than the required annual registration in the home state.

_**KWIK-NOTE: All POVs on base must have a valid registration. This topic should be supplemented by state law require-**_

_**ments.**_ ****

**RELATED TOPICS:**

**SECTION**

Driver's Licenses

21-3

Motor Vehicle Rules – Military Bases

21-6

Suspension of Base Driving Privileges

21-7

_**Air National Guard Commander's Legal Deskbook**_

750

_**Chapter 21 Motor Vehicle Matters**_

_**Section 21-5 Motor Vehicle Accident Reporting**_

_**Page 1**_

**Motor Vehicle Accident Reporting**

**Updated by Lt Col Sue Ellen Schuerman, April 2013**

**AUTHORITY:** Applicable state law and regulations; AFMAN 23-220, _Reports of Survey for Air Force Property_ (1 Jul 96); AFI 24-301, _Vehicle Operations_ (1 Nov 08, IC 2, 11 May 12); AFMAN 31-116, _Air Force Motor Vehicle Traffic Supervision_ (9 May 12); AFI 31-218, _Motor Vehicle Traffic Supervision_ (22 May 06). 

## INTRODUCTION

**** The operator of a government motor vehicle (GMV) involved in an off-base accident must immediately notify the applicable local law enforcement agency. Operators must also immediately report both on and off -base accidents involving inju-

ries or damage to government motor vehicles to their commander and security forces. In most states, motor vehicle acci-

dents involving GMVs must also be reported through appropriate channels to the adjutant general.

Furthermore, pursuant to state statutes applicable to all motor vehicle accidents, whether GMVs are involved, there are

usually requirements to submit a motor vehicle accident report to the state's Department of Motor Vehicles. If a GMV is

involved, such report is usually one of the documents to be completed and submitted to the adjutant general who may

then send it to the state's Department of Motor Vehicles.

**DISTINGUISHED FROM REPORT OF SURVEY**

The accident reporting requirement in this topic is separate from a report of survey. Each has a different purpose. The

accident report is used to provide the facts and circumstances of the accident reported to the adjutant general and to com-

ply with state motor vehicle laws. Additionally, it is needed because the state (which may also be self-insured) must de-

termine issues of government negligence, coverage, indemnification of military members, and the liability to the govern-

ment due to the negligence of civilians. On the other hand, a report of survey is an Air Force procedure to determine if a

member should reimburse the government for property lost or damaged through negligence of the member.

**UNIT REQUIREMENTS**

Wing or group commanders may be required under state or applicable military regulations to develop local policies to

clearly outline local accident reporting and routing procedures to allow for prompt investigating and reporting of acci-

dents to the appropriate agencies.

**IMMUNITY FROM SUIT**

Because the Federal Tort Claims Act (FTCA) covers National Guard personnel serving in Title 32 or Title 10 status, a ci-

vilian claimant's exclusive remedy is against the federal government. Therefore, a National Guard member is not person-

ally liable when acting within the scope of employment in motor vehicle accidents involving GMVs. As a result, individ-

ual National Guard members served with a summons and complaint must forward them immediately, through the appro-

priate channels, to the adjutant general, with a request for representation and/or indemnification.

**LEGAL REVIEW**

Before accident documents are sent to higher headquarters, they should be reviewed by the staff judge advocate for accu-

racy, completeness and compliance with the applicable regulations.

_**Air National Guard Commander's Legal Deskbook**_

751

_**Chapter 21 Motor Vehicle Matters**_

_**Section 21-5 Motor Vehicle Accident Reporting**_

_**Page 2**_

_**KWIK NOTE: Prompt and complete reporting of motor vehicle accidents involving GMVs is necessary for National Guard**_

_**members to be eligible for representation and indemnification by the federal or state government if liability. This topic**_

_**should also be supplemented by applicable state laws and regulations.**_

****

**RELATED TOPICS:**

**SECTION**

Car Rentals by National Guard Members

27-2

Drivers' Licenses

21-3

Feres Doctrine

18-3

Lawsuits against National Guard Personnel

18-6

Motor Vehicle Rules – Military Bases

21-6

Personal Liability of Federal and State Personnel

18-9

Reports of Survey

25-19

Suspension of Base Driving Privileges

21-7

_**Air National Guard Commander's Legal Deskbook**_

752

_**Chapter 21 Motor Vehicle Matters**_

_**Section 21-6 Motor Vehicle Rules – Military Bases**_

_**Page 1**_

**Motor Vehicle Rules – Military Bases**

**Updated by Lieutenant Colonel Sue Ellen Schuerman, December 2014**

**AUTHORITY:** Applicable state law and regulations; AFI 31-101, _The Air Force Installation Security Program_ (1 Mar 03); AFI 91-207, _The U.S. Air Force Traffic Safety Program_ (22 May 07); AFMAN 31-116, _Air Force Motor Vehicle Traffic Supervision_ (9

May 12); AFI 31-218, _Motor Vehicle Traffic Supervision_ (22 May 06). 

## INTRODUCTION

**** AFI 31-101 defines all Air Force installations, regardless of mission, as closed installations. This means that the general public, as well as base employees, do not have free access to operate private motor vehicles on base and that driving a

vehicle on the installation is a privilege, not a right. Entrance to the installation is generally controlled by security forces through access gates.

**WHICH RULES APPLY AND WHO ENFORCES THEM?**

Determining which rules apply and who enforces them is dependent, in part, on whether the installation is on federal

land with exclusive jurisdiction or is on state or city leased land where local law applies. Generally, if an installation has federal jurisdiction, only installation security forces enforce applicable federal laws and apply AFIs and related regulations to motor vehicle infractions.

On the other hand, if the base is not located on exclusive federal jurisdiction property, both state law and Air Force regu-

lations provide the basis for traffic regulation. Generally, on-base violations can be handled by military authorities or

turned over to civilian law enforcement if the violator is military, while violations by civilians (including base employees) must be turned over to civilian law enforcement.

If the base is co-located with an active duty installation, the active duty security forces and installation commander make

decisions about access and enforce established guidelines.

The development of any local base traffic regulations and the administrative procedures to enforce them should be coordi-

nated with the security forces commander and the staff judge advocate. In addition, there may be labor relations consid-

erations in applying the regulation to technicians. As a result, the labor relations specialist should also be consulted be-

fore implementing any new regulations and/or procedures.

_**KWIK-NOTE: Establish the motor vehicle rules for your base and the methods for their enforcement. Consider promulgating**_

_**a base regulation. Consider supplementing this topic in light of your state's motor vehicle rules.**_ **__******

**RELATED TOPICS:**

**SECTION**

Access to Military Installations

3-2

Driver's Licenses

21-3

Installations Occupied by ANG

25-12

Labor Relations

5-5

Vehicle Registration

21-4

Suspension of Base Driving Privileges

21-7

_**Air National Guard Commander's Legal Deskbook**_

753

_**Chapter 21, Motor Vehicle Matters**_

_**Section 21-7 Suspension of Base Driving Privileges**_

_**Page 1**_

**Suspension of Base Driving Privileges**

**Updated by Lieutenant Colonel Sue Ellen Schuerman, December 2014**

**AUTHORITY:** AFMAN 31-116, _Air Force Motor Vehicle Traffic Supervision_ (9 May 12); AFI 31-101, _Integrated Defense_ (8 Oct 09); AFI 31-218(I), _Motor Vehicle Traffic Supervision_ (22 May 06); AFI 24-301, _Vehicle Operations_ (1 Nov 08, IC 2, 11 May 12); applicable state law. 

## INTRODUCTION

**** In accordance with AFI 31-101, procedures are established for installation entry. The general public, as well as base employees - both military and civilian - do not have free access to operate privately owned motor vehicles on base. This is

because the operation of a privately owned motor vehicle on base is a privilege granted by the installation commander

and not a right. When an individual accepts that privilege, they must comply with the laws and instructions governing

motor vehicle operation and registration on the installation. The operation of privately owned motor vehicles on base is

subject to the legitimate concerns of the installation commander in providing for the safety of base personnel and the pro-

tection of the resources under the commander's care.

**RULES**

If the ANG base is co-located with an active duty military installation, violations of base driving rules is handled by the

active installation. If the ANG base is not co-located, the installation commander must establish rules for handling viola-

tors in accordance with applicable Air Force guidance.

**ENFORCEMENT**

One possible consequence of violating base and civilian driving rules is the suspension of base driving privileges. This

may include government motor vehicle (GMV) driving privileges and/or POV privileges.

POV driving privileges may be suspended for traffic violations, to specifically include driving under the influence (DUI)

incidents. Incidents serving as the basis for a suspension/revocation may have occurred on or off-base. Procedures gov-

erning suspension or revocation of driving privileges must be incorporated into base publications or as a supplement to

AFMAN 31-116 and made known to the base population. Applicable required due process procedures are detailed in AFI

31-218(I).

Under AFI 31-218(I), Appendix B, paragraph B–1, installation commanders are required to notify the state driver's li-

cense agency of those personnel whose installation driving privileges are revoked for 1 year or more, following final adju-

dication of an intoxicated driving offense or for refusing to submit to a lawful BAC test. This notification will include the basis for the suspension and the blood alcohol level. The notification will be sent to the state in which the driver's license was issued.

As a general rule, all GMV driving privileges are suspended when an individual's authority to drive civilian vehicles on-

base is suspended. Upon reinstatement of the individual's state driver's license or on-base driving privileges for civilian

vehicles, full GMV driving privileges (including off-base) will be restored unless specifically withheld by an individual's

commander. Under certain limited circumstances, GMV driving privileges may be restored while personal, on-base driv-

ing privileges are suspended and the individual's state operator's permit is suspended. The same level of authority that

approves the GMV driving suspension must also approve the reinstatement.

Reinstatement in these cases is based on mission essentiality of the member involved and a certification that the member

cannot be assigned duties that do not involve driving.

_**Air National Guard Commander's Legal Deskbook**_

754

_**Chapter 21, Motor Vehicle Matters**_

_**Section 21-7 Suspension of Base Driving Privileges**_

_**Page 2**_

AFI 31-218(I) can be used as a basis for developing a complete program covering the suspension of base driving privi-

leges. The development of any base publication covering the suspension of base driving privileges should be done in coor-

dination with the staff judge advocate and security forces commander. In addition, there may be labor relations considera-

tions in applying any such publication to technicians. As a result, the labor relations specialist should also be consulted

before implementing any new procedures.

If one of your unit members is TDY at an active Air Force installation and has base driving privileges suspended at that

installation, the circumstances surrounding the suspension may support ANG disciplinary or adverse administrative ac-

tion against that member. Such action should be coordinated with the staff judge advocate before it is initiated. Further-

more, suspensions and revocations at one installation are applicable to all when entered into the Security Forces' DBIDS

system used at installation entries. Attachment 1 to this topic is a sample format for an Installation Driving Privileges

Program based upon AFI 31-218(I), which may be helpful in setting up a similar program for your base. It should be

adapted to state and local requirements.

_**KWIK-NOTE: Establish a procedure for the suspension of driving privileges IAW AFI 31-218(I). Develop a letter that will**_

_**be served on members to suspend driving privileges.**_ ****

**RELATED TOPICS:**

**SECTION**

Access to Military Installations

3-2

Driver's Licenses

21-3

Installations Occupied by ANG

25-12

Labor Relations

5-5

Legal Reviews

17-11

Motor Vehicle Rules – Military Bases

21-6

Pass and Registration

3-14

Vehicle Registration

21-4

_**Air National Guard Commander's Legal Deskbook**_

755

_**Chapter 21, Motor Vehicle Matters**_

_**Section 21-7 Suspension of Base Driving Privileges**_

_**Page 3**_

_Attachment 1_

**DRIVING PRIVILEGES** __

_Driving a government vehicle or POV on any military installation is a privilege granted by the installation commander._

1. To drive a POV on base, persons must do the following:

a. Comply with all laws and regulations governing motor vehicle operations on base;

b. Possess while operating a motor vehicle and produce on demand to law enforcement personnel:

A valid state driver's license;

A certificate of state registration as required by the state in which the vehicle is registered;

Proof of compliance with the minimum requirements of the automobile insurance laws or regulations of the state

in which the installation is located; and

Proof of satisfactory completion of safety and mechanical vehicle inspection by the state in which the vehicle is

registered or by the state in which the installation is located if either state requires such an inspection and

2. Operators of government motor vehicles must have proof of authorization to operate the vehicle.

3. Drivers on-base give implied consent to a number of things:

a. Consent to tests for alcohol or other drugs in their blood, breath and/or urine if lawfully stopped, apprehended,

or cited for any offense committed while driving, or in physical control of, a motor vehicle on base while under the

influence of intoxicants; and

b. Consent for the removal and temporary impoundment of their POV when it is parked illegally, interfering with

operations, creating a safety hazard, disabled by accident, left unattended in a restricted or controlled area, or

abandoned.

4. The installation commander may administratively suspend or revoke driving privileges on the installation.

a. For intoxicated driving incidents, installation commanders will immediately suspend installation

GOV and POV driving privileges pending resolution under the following circumstances. This applies regard

less of the geographic location of the incident.

b. Refusal to take or complete a lawfully requested chemical test to determine contents of blood for alcohol or

other drugs (suspend pending resolution of the underlying intoxicated driving incident);

Operating a motor vehicle with a blood alcohol content (BAC) of 0.08 percent by volume or higher, or in

violation of state BAC levels; or

c. On an arrest report or other official documentation of an apprehension for intoxicated driving.

5. Driving privileges will be revoked for a mandatory minimum period of one year for:

a. Driving while driver's license or installation driving privileges are under suspension or revocation;

b. Refusal to submit to or complete a test to measure blood alcohol content or the presence of any drug when

apprehended for intoxicated driving on base;

_**Air National Guard Commander's Legal Deskbook**_

756

_**Chapter 21, Motor Vehicle Matters**_

_**Section 21-7 Suspension of Base Driving Privileges**_

_**Page 4**_

c. A conviction, nonjudicial punishment, or a military or civilian administrative action resulting in the suspension

or revocation of a driver's license for intoxicated driving; or

d. When a serious incident involving a motor vehicle occurs and the installation commander determines immedi-

ate revocation of driving privileges is required to preserve public safety or the good order and discipline of military per-

sonnel.

e. Revocations apply at all military installations.

6. Driving privileges can be revoked for a number of other reasons as well:

a. Failure to comply with the laws and regulations governing motor vehicle operations on base;

b. Failure to comply with base registration requirements; or

c.

Failure to possess a valid state driver's license, proof of vehicle ownership or state registration, or a valid

record of motor vehicle safety inspection (where required).

7.

The traffic point system is mandatory and must be used on-base to provide a uniform administrative device to im-

partially judge driving performance, in which:

a. Points are assessed when a person violates a driving regulation;

b. Revocation or suspension can occur for serious moving traffic violations resulting in excessive traffic points (for

example, 12 points within 12 consecutive months or 18 points within 24 consecutive months); and

c. Off-base convictions result in assessment of traffic points.

8. Before a person's base driving privileges are suspended or revoked, certain procedural guidelines must be followed:

a. Persons to be denied base driving privileges have the right to a hearing before a designated hearing officer, and:

b. Must be notified of their right to the administrative hearing and then fill out a request for the hearing;

c. Must be notified of their right to request restoration of driving privileges pending investigation or resolution of

the incident (direct request letters to the installation commander or designees);

d. the right of military personnel to present evidence and witnesses and be represented by a civilian counsel (at

their own expense) or assigned military counsel;

e. The right of DoD civilian employees to have a personnel representative present at the administrative hearing;

f. Amount of time the individual has to respond and request the administrative hearing preliminary suspension

becomes permanent; and

g. Suspension or revocation is not stayed pending appeal.

9. Before immediate suspension occurs for intoxicated driving offenses, review of the evidence must be accomplished as

soon as possible, normally within the first duty day following the final assembly of evidence.

_**Air National Guard Commander's Legal Deskbook**_

757

_**Chapter 21, Motor Vehicle Matters**_

_**Section 21-7 Suspension of Base Driving Privileges**_

_**Page 5**_

10. Driving privileges shall be restored upon acquittal of intoxicated driving or if charges are dismissed or reduced to an

offense not amounting to intoxicated driving, unless:

a. The preliminary suspension was based on refusal to take a BAC test;

b. The suspension was based on a valid BAC test. In those cases, the member can request a hearing;

c. The member was driving while under a preliminary suspension or revocation;

d. The state has administratively determined to suspend or revoke driving privileges;

e. The member has failed to complete a formally directed substance abuse or driver's training program.

_**Air National Guard Commander's Legal Deskbook**_

758

**Chapter 22, Services (Morale, Welfare and Recreation) Issues**

**Table of Contents**

**Section**

22 - 1 Table of Contents

22 - 2 Private Organizations and Unofficial Activities

22 - 3 Dining and Social Club Organizations

22 - 4 Air Force Fitness and Sports Programs

22 - 5 Morale, Welfare, and Recreation Funds

22 - 6 Using Base-Sanctioned Private Organizations to Support Open Houses

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_**Page 1**_

**Private Organizations and Unofficial Activities**

**Updated by Lt Col Kristin DeJarlais, March 2015**

**AUTHORITY:** AFI 34-223, _Private Organization (PO) Program_ (8 Mar 07, Incorporating Change 1, 30 Nov 10); ANG Sup 1

to AFI 34-223 (13 Nov 14); DoDI 1000.15, _Private Organizations on DoD Installations_ (24 Oct 08). 

## INTRODUCTION

ANG Services-monitored (MWR) activities that generate or receive funds may be organized into entities known as unoffi-

cial activities (UA) or private organizations (PO). The following material discusses the formation, ongoing maintenance

requirements, and permissible activities of these two kinds of organizations.

**ORGANIZATIONS**

**Unofficial Activities (UAs):** UAs are small-scale activities and/or operations whose assets do not meet the financial

threshold for establishing a private organization. Examples of UAs are flower funds, coffee funds, unit advisory councils,

or small-scale booster clubs. If an organization's unofficial funds exceed a monthly average of $1000 over a three-month

period, it must either reduce its assets to an acceptable level, become a private organization, or discontinue operations.

**Private Organizations (POs):** POs are self-sustaining special-interest groups set up by people acting outside the scope of any official position they may have in the federal government. POs are not non-appropriated fund instrumentalities

(NAFIs), nor are they entitled to the sovereign immunities and privileges given to NAFIs, the ANG or the Air Force. POs

operate on the installation with the written consent of the installation commander. The commander may withdraw the

authorization if the PO prejudices or discredits the government, conflicts with government activities or for any other rea-

son or just cause. The installation commander may delegate authority over POs to the Mission Support Group com-

mander. The commander's authority to approve or disapprove fundraisers may be further delegated to the FSS com-

mander. The commander may also direct a PO to eliminate duplication of services, particularly if the services compete

with the installation's non-appropriated fund revenue-generating activities and ensure background checks for employees

and volunteers of POs who have contact with children under age 18 for certain child care and youth-services programs.

AFI 34-223 and ANG Sup 1 specify that the instruction applies to all POs except the following that are governed by DoD

Directives (DoDDs) and Instructions (DoDIs) as referenced:

1. Scouting organizations operating on US military installations located overseas (DODI 1015.9(e), _Professional United_

_States Scouting Organization Operations at United States Military Installations Located Oversea_ s).

2. American National Red Cross (DODD 1330.5, _American National Red Cross_ ).

3. United Seaman's Service (DoDD 1330.16, _United Seaman's Service (USS_ )).

4. United Service Organizations, Inc. (DoDD 1330.12, _United Service Organizations, Inc_.).

5. Credit Unions (DoDD 1000.11, _Financial Institutions on DoD Installations: DoDI 1000.10, Procedures Governing Credit Unions_ _on DoD Installations_ ).

6. Banks (DoDD 1000.11, _Financial Institutions on DoD Installations; DoDI 1000.12, Procedures Governing Banking Institution on_ _DoD Installations_ ).

**CREATING A PRIVATE ORGANIZATION**

Starting a PO requires a written constitution, written by-laws, and/or other necessary documents outlined in the ANG

Private Organization Handbook through the FSS/FSR, FSS/CC/CL and Staff Judge Advocate for consideration by the in-

stallation commander.

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The constitution and by-laws must:

1. Address the nature, function, objectives, membership eligibility, and sources of income of the PO.

2. Provide certification to FSS/FSR indicating that PO members have been notified and understand their personal finan-

cial liability for obligations of the PO, as provided by law.

3. Describe the responsibilities of PO officers for asset accountability, liability satisfaction, and sound financial and operational management.

4. Provide specific guidance on how to dispose of residual assets remaining in the PO treasury after satisfaction of out-

standing debts.

5. Be updated every two years or when there is a change in the purpose, function, or membership eligibility of the PO,

whichever comes first.

Each PO controls its own activities and ensures compliance with all governing instructions. The installation commander

has the power to withdraw authorization for any PO.

1. POs must prominently display the following disclaimer on all print and electronic media mentioning the PO's name

confirming that the PO is not a part of DoD: "This is a private organization. It is not a part of the Department of Defense

or any of its components and it has no governmental status." This disclaimer must also be provided in verbal communica-

tion and public announcements. In addition, POs shall not use the seals, logos, or insignia of the DoD or any DoD Com-

ponent, DoD organizational unit, or DoD installation on organization letterhead, correspondence, titles, or in association

with organization programs, locations, or activities. _See_ further restrictions in AFI 34-223.

2. POs may not discriminate or restrict membership based on age, race, religion, color, national origin, disability, ethnic

group, or gender. POs may organize around a cultural or ethnic focus as long as they do not restrict their membership on

the basis of culture or ethnicity.

3. POs may not harass or haze as part of an initiation.

4. Religiously oriented POs may be authorized to operate on installations. _See_ requirements of AFI 34-223, para. 10.4.

**OPERATING A PRIVATE ORGANIZATION**

The installation commander provides limited supervision over POs. His or her control lies in the power to authorize and

withdraw authorization for POs to operate on the installation. The commander ensures that all POs are in compliance

with the requirements of AFI 34-223 and ANG Sup 1. However, commanders should not control nor dictate any internal

activities or structure of POs.

ANG installation commanders must annually require all base unit commanders to certify compliance with regulatory

guidance for UAs and/or POs associated with their units. Commanders can achieve this by completing the Commanders

Checklist, available as _Attachment 2_ to ANG Supp. 1 to AFI 34-223. In addition, ANG units co-located on active-duty Air Force installations may establish an agreement with the host that the active-duty host Services Squadron/Division monitors ANG POs/UAs in accordance with the AFI 34-223. This needs to be documented in the base MOA between the

ANG and host installation.

The Base Services Manager is required to keep a file on all approved POs and UAs on the installation and reviews each

PO annually at the close of the PO's fiscal year to ensure financial statements, documents, records, and procedures out-

lined in the ANG Private Organization Handbook and this AFI / Supplement are in order. **1**

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A number of restrictions in AFI 34-223 and ANG Supp. 1 apply to the formation and operation of a PO. These restric-

tions are set out in full in paragraphs 9 through 10. Some of the more important restrictions are:

1. POs must be self-sustaining. POs must furnish their own equipment, supplies, and other materials. Generally, income

must not accrue to individual members. POs must prepare an annual income-and-expense statement. If annual revenues

are less than $100,000, but more than $5,000, no requirement exists to conduct an independent audit or financial

review. **2** PO officers and members must report any signs of fraud or other improprieties to the Services Flight com-

mander, or the Mission Support Group commander. **3**

2. PO funds cannot be commingled with federal or state funds.

3. POs and unofficial activities/organizations must not engage in activities that duplicate or compete with the Army and

Air Force Exchange Service.

4. The installation commander may authorize (may delegate to the Mission Support Group commander or the FSS/CC/

CL) continuous thrift shop sales operations and occasional events for fundraising purposes ( _e.g._ , bake sales, dances, carnivals, car washes, or similar functions) which the PO or unofficial activity conducts directly, through a third party, or its media. Approval is required for POs or unofficial activities whether the fundraiser is conducted on- or off-installation.

"Occasional" is defined as not more than two per calendar quarter. The prohibition against frequent or continuous resale

activities does not preclude collective purchasing and sharing of purchased items by members of POs or unofficial activi-

ties so long as there is no actual resale. _See_ AFI 36-3101, _Fundraising within the Air Force,_ for fundraising authority during the Combined Federal Campaign. Dining Social Clubs (DSCs), properly chartered and administered in accordance with

ANGI 34-121, _Dining Social Club Organizations_ , may conduct continuous resale activities under the Air Force waiver to this paragraph as documented in paragraph 1.5.2, ANGI 34-121.

5. POs and unofficial activities may not sell alcoholic beverages. Dining Social Clubs organized and chartered under

ANGI 34-121, _Dining Social Club Organizations_ , have a waiver to this prohibition.

6. POs must have liability insurance unless the installation commander, with judge advocate review, waives the require-

ment. However, POs may be required to obtain insurance for certain special events which involve a greater risk of injury

or damage. Insurance waivers must be reevaluated annually.

7. The PO should consider bonding for its treasurer.

8. POs must comply with all applicable federal, state, and local laws governing similar civilian activities. Some POs may

qualify for tax-exempt status if they are organized for one or more of the purposes specifically outlined in the Internal

Revenue Code.

9. PO officer and member and unofficial activities/organization actions must not prejudice or discredit the United States

Government or conflict with governmental activities. POs are limited to off-base solicitation of funds that clearly indicate that they are not for the base or any official part of the Air Force.

_________________________________

1 The Guard-specific ANG Private Organization Handbook is located on the NGB/A1S portal site at:

https://www.my.af.mil/gcss-af/USAF/AFP40/d/1074704455/Files/editorial/ANG%20Private%20Organization%20Hand book%2d%2d%20Nov %202007.doc

2 However, such POs must provide an annual financial statement, as outlined in the ANG Private Organization Hand-

book, to the Base Services Manager NLT 20 days following the end of the PO's fiscal year.

3 The installation commander should request an audit from the Air Force Audit Agency (AFAA), which may schedule

the review within available resources. ANG commanders also have access to the state United States Property & Fiscal

Officer (USPFO) for external audit capabilities.

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10. POs are strictly limited in conducting occasional, infrequent fund-raising raffles only when authorized in advance by

the installation commander (or as delegated), and subject to a number of restrictions detailed in Para 10.16. in AFI 34-

223.

**ENDING A PO ACTIVITY**

When a PO decides to dissolve or shut down, it must use its funds to satisfy any outstanding debts or obligations and

dispose of any residual balance as decided by the PO membership. The officers of the PO should notify the Base Services

Manager or the Force Support Squadron commander of their intent to dissolve the PO and prepare a time-phased action

plan to do so, and give a copy of the plan to the Base Services Manager for file.

_**KWIK-NOTE: While you should ensure POs meet regulatory requirements, you should not control or dictate any internal ac-**_

_**tivities or structure of POs. Your control over POs lies in the power to authorize and withdraw authorization for POs to op-**_

_**erate on your installation.**_

**RELATED TOPICS:**

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**SECTION**

MWR Programs, Activities and Facilities

22-4

MWR Funds

22-5

Using Base-Sanctioned POs to Support Open Houses

22-6

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_**Section 22-3 Dining Social Club Organizations**_

_**Page 1**_

**Dining Social Club Organizations**

**Updated by Lt Col Kristin DeJarlais, March 2015**

**AUTHORITY:** AFI 34-121, _Other Recreation Membership Clubs Programs_ (6 Nov 12); ANGI 34-121, _Dining Social Club Organizations_ (1 Sep 05); AFI 34-219, _Alcoholic Beverage Program_ (4 Feb 15); AFI 34-223, _Private Organization (PO) Program_ , (8 Mar 07, incorporating Change 1, 30 Nov 10); ANG Supp. 1 to AFI 34-223, _Private Organization (PO) Program_ (13 Nov 14).

_NOTE: ANGI 34-121 replaces ANGR 215-2, Dining Social Club Organizations. ANGI 34-121 includes an Air Force waiver allowing_ _some properly chartered ANG Dining Social Clubs to sell alcoholic and malt beverages and operate a continuous resale function. Commanders and Judge Advocates must follow ANGI 34-121, but proceed with caution in establishing a new dining social club on an Air National_ _Guard Base. Coordination and communication with local State Headquarters and the NGB/A7 is strongly advised._

## INTRODUCTION

ANG Dining Social Clubs (DSCs) enhance morale and _esprit de corps_ , provide activities and facilities for fellowship and recreation for ANG members and their families, and offer programs similar to those available to active and reserve forces

through the Air Force Club Program. However, they have no federal status. Dining Social Clubs must be operated within

ANG policy and in compliance with federal, state, and local laws. Dining Social Clubs on ANG installations are not part

of the Air Force Club Program.

A DSC must be financially self-sustaining through dues, contributions, service charges, fees, special assessment of mem-

bers, or resale of authorized goods and services. There shall be no direct or indirect financial assistance to a DSC from

appropriated funds or NAFIs. In addition, DSCs' resale activities shall be limited.

The State Adjutant General is the approval authority for the operation of a DSC on an ANG installation and provides

oversight for annual DSC reviews forwarded by the Assistant Adjutants General for Air from installation commanders.

Only one DSC per ANG installation is allowed. ANG tenant units on an active military installation where the host base

operates an Air Force Club activity may not establish a DSC. Under normal circumstances, ANG members are encour-

aged to participate in their host's Air Force Club program.

There is no official relationship between the activities of DSCs, which are designed as private organizations, and those of

the ANG personnel who are members and/or patrons. Dining Social Clubs are not integral parts of military organiza-

tions from which their membership is drawn. A DSC may use the name or abbreviation of a DoD component, organiza-

tional unit, or installation in its name provided it takes steps to ensure its status as a private organization is apparent and unambiguous, and to prevent the appearance of official sanction or support by the ANG or any other part of the Federal

Government. _See, also_ , AFI 34-223.

Membership in a DSC does not entitle its members to reciprocal privileges in any U.S. Armed Forces Club (open mess).

ANG members on an active Air Force installation in an active duty or active duty for training status are eligible for AF

Club membership as outlined in AFI 34-272, Air Force Club Program.

As private organizations, DSCs operating on ANG installations must also comply with the guidance in AFI 34-223, _Pri-_

_vate Organization Program_ , and ANG Supp. 1 to AFI 34-223, _Private Organizations (PO) Program_. Where conflict exists between an AFI and ANGI 34-121, _Dining Social Club Organizations_ , the ANGI controls. ( _See_ para 1.5.2) Further procedural information concerning the establishment of a DSC is found in Chapter 1 of ANGI 34-121, _Dining Social Club Organizations._

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**PROCEDURES FOR ESTABLISHMENT OF DINING SOCIAL CLUB ORGANIZATIONS**

A DSC must be established as a not-for-profit membership corporation organized in conformity with state law. Its func-

tions and objectives must be in writing and should be reviewed by the senior ANG installation judge advocate and other

staff members as deemed necessary. Each DSC must maintain on file (usually the Base Services Manager has Private Or-

ganization oversight) at the ANG installation the organizational documents required by state law, including an alcohol

license or waiver (a Federal Bureau of Alcohol, Tobacco, and Firearms permit may also be required), a certificate or arti-

cles of incorporation, charter or constitution, by-laws, and such other organizational documents as may be required.

Constructing new facilities on an ANG installation specifically in support of a DSC is prohibited, even if the facility is

constructed totally with donated materials and labor.

Facility use by a DSC can be partial, or a total use of a building.

Requests by DSCs for approval to have joint use or exclusive use of a facility must be submitted through the Installation

Commander, the State Assistant Adjutant General for Air, the USPFO, ANG/CEPR, and the AF Civil Engineer Center

(AFCEC, _formerly_ AFRPA) in accordance with ANGI 34-121, paragraph 4.3.

**Joint Use**

A DSC using a space within a building also being used to full mission requirements is joint-use space; this requires a li-

cense and operates at no cost to the Government. A DSC receives a license (instead of a lease) to use real property which

grants non-exclusive or joint use of existing space and facilities on ANG installations to a DSC. A license must be revoca-

ble at will and requires written approval of the Installation Commander. The documentation requirements to request a

DSC license are explained in ANGI 34-121, paragraph 4.3.5. Operation or maintenance facilities are considered inappro-

priate for joint use. The DSC will pay a pro-rata share of utility costs and all additive costs of maintenance, upkeep, and

repair of the joint-use facilities resulting from its use of such facilities. The above items will be included in the terms of the license.

**Exclusive Use**

Exclusive use is defined as the sole occupant of a facility or portion thereof dedicated for DSC use only. If exclusive occupancy of existing space and/or facilities on ANG installations is granted to a DSC, a lease is required. A lease requires

payment of rent or other consideration in cash or in kind to the federal government. If a DSC has exclusive use of a facil-

ity or portion of a facility on an ANG installation, the DSC is responsible for total maintenance, upkeep, and repair of the premises. The DSC will be billed directly by a provider of services or will reimburse the government for all additive costs

resulting from its use of the facility. The above items will be included in the terms of the license.

**MEMBERSHIP**

Dining Social Clubs determine their own eligibility rules; however, installation commanders should not approve any DSC

that does not primarily focus on the ANG family. DSCs may not discriminate in membership policies on the basis of age,

race, religion, color, national origin, disability, ethnic group, marital status, lawful political affiliation, labor organization membership, gender, or other classification prohibited by federal or state laws. Membership cards will be issued to identify members to control DSC patronage and will be clearly and distinctly marked in accordance with para. 3.3. to reflect

membership in a P.O.

**ALCOHOL SALES**

In some circumstances, a properly chartered and authorized DSC may sell alcoholic and malt beverages for on-premise

consumption, but must operate such sales in strict compliance with the alcoholic beverage laws of the state and munici-

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pality in which it is located. (DSCs were granted an exemption from AFI 34-223 for alcoholic and continuous resale ac-

tivities. _See_ ANGI 34-121, para. 1.5.2. and 3.9.2.1.) Additionally, DSCs are subject to the ANG installation commander's alcohol deglamorization program established IAW AFI 34-219, _Alcoholic Beverage Program_ , and AFI 44-121, _Alcohol and_ _Drug Abuse Prevention and Treatment (ADAPT) Program_. AFI 34-219 also sets out guidelines as to where drinking may occur on an ANG installation as well as useful procedures to avoid dram-shop liability. All DSC employees selling alcoholic beverages must be familiar with the dram-shop theory of liability. ANG installation commanders should make use of all avail-

able means to deglamorize alcohol and make ANG personnel aware of responsible approaches to drinking. DSCs must

also comply with the spirit and intent of the President and DoD initiatives to prevent driving under the influence of alco-

hol and drugs.

**RESPONSIBILITIES OF THE INSTALLATION COMMANDER AND STATE ADJUTANTS GENERAL**

The ANG installation commander is responsible for ensuring space and facilities necessary for mission requirements are

not used to support DSC operations. No federal manpower or funds may be used to support DSCs. ANG commanders

also must ensure excess facilities committed to Congress for disposal as a condition of an approved ANG construction

project are not used in support of DSC operations. The ANG installation commander must also keep a permanent file on

the DSC's operations and conduct a review of DSC operations at least once a year. The review must be evaluated by the

installation Staff Judge Advocate prior to the installation commander's consideration of the report. Additionally, installa-

tion commanders must require an external audit of the DSC's operations at least every 18 months.

The Assistant Adjutant General for Air is responsible for ensuring all DSCs operating on ANG installations are properly

authorized and in compliance with applicable federal, state, and local laws, and ANG instructions.

The Adjutant General provides oversight for the annual review forwarded from the Assistant Adjutant General for Air.

The Adjutant General has the authority to withdraw approval for DSC operations at any time.

For the responsibilities of other involved entities, _see_ ANGI 34-121, Chapter 2.

**INSURANCE**

Dining Social Clubs must establish and maintain reasonable amounts of commercial insurance to provide protection

against personal liability, worker's compensation and property damage claims, or other legal actions arising from activi-

ties of the organization, its employees, members or guests. Commercial insurance against liability exposure and loss or

damage to DSC assets is the sole responsibility of the DSC. Evidence of such insurance coverage and the amount shall be

provided to the ANG installation commander. The DSC should also consider maintaining an insurance policy to cover

the actions of its officers and directors.

The amount of insurance required may depend on state law or common practices in the local business community, but

must be appropriate to protect the DSC, the DSC members, the U.S. Government, the USAF, and the ANG from liability.

**OPERATING GUIDELINES AND INSTRUCTIONS**

**** Detailed DSC operating guidelines are published in Chapter 3 of ANGI 34-121. These guidelines may need to be supple-

mented based on the particular requirements in your state.

Generally, activities of DSCs should not in any way reflect prejudice or discredit upon the ANG, USAF, DoD components

or other agencies of the federal government.

To protect the interests of the DSC, as well as ANG members and their guests, the DSC manager shall:

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1. Publish operating instructions as identified in Attachment 2 to ANGI 34-121 that prohibit serving alcoholic beverages

to those who appear either to be intoxicated or not in complete control of their faculties.

2. Ensure all servers are trained properly on recognizing signs of excessive consumption and the importance of liquor li-

ability (dram-shop) laws. Servers must be familiar with all operating instructions.

3. Ensure proper safeguards are set up to protect the welfare of an intoxicated or impaired person and the assets of the

ANG and DSC. ****

**DISSOLVING A DSC**

When a DSC decides to dissolve or shut down, it must use its funds to satisfy any of its outstanding debts, liabilities, or

obligations and dispose of residual assets as specified by the articles of incorporation, charter, or constitution. DSC man-

agement must notify the installation commander through the FSS Commander or equivalent of its intent to dissolve the

DSC and prepare a time-phased action plan to do so.

_**KWIK NOTE: When providing oversight, considering or establishing a Dining Social Club Organization, commanders**_

_**should closely consult with their Staff Judge Advocates.**_ ****

**RELATED TOPICS:**

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**SECTION**

Private Organizations and Unofficial Activities

22-2

MWR Programs, Activities and Facilities

22-4

MWR Funds

22-5

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_**Section 22-4 Air Force Fitness and Sports Programs**_

_**Page 1**_

**Air Force Fitness and Sports Programs**

**Updated By Maj Kristin DeJarlais, June 2014**

**AUTHORITY:** AFI 34-266, _Air Force Fitness and Sports Program_ (24 Sep 07, incorporating Change 1, 30 Nov 10); AFI 65-106, _Appropriated Fund Support of Morale, Welfare, and Recreation (MWR) and Nonappropriated Fund Instrumentalities (NAFIs)_ (6

May 09); AFI 34-201 and ANG Sup to AFI 34-201, _Use of Nonappropriated Funds (NFS)_ , (29 Nov 07); AFI 91-302, _Air Force_ _Occupational and Environmental Safety, Fire Protection, and Health (AFOSH) Standards_ (18 Apr 94); AFI 32-1024, _Standard Facility Requirements_ (14 Jul 11); AFI 65-106, _Appropriated Fund Support of Morale, Welfare, and Recreation (MWR) and Nonappropriated Fund Instrumentalities (NAFIS)_ (6 May 09). 

## INTRODUCTION

AFI 34-266, _Air Force Fitness and Sports Program,_ implements AFPD 34-1, _Air Force Services Combat Support Programs,_ and applies to all Air Force units and members, as well as Air National Guard and U.S. Air Force Reserve units and members.

This publication implements the Fitness Improvement Program (AFI 10-248, _The Air Force Fitness Program_ ), and voluntary, leisure-time fitness and sports activities. Air Force Fitness and Sports Program has a two-tiered mission. The primary

mission is to support unit commander fitness programs which entails liaison with unit Physical Training Leaders (PTLs),

support the Fitness Improvement Program (FIP) and provide on-site, interactive customer service with equipment and

facility orientations. The secondary mission is to provide core fitness and sports programs to all authorized users. AFI

65-106, _Appropriated Fund Support of Morale, Welfare, and Recreation (MWR) and Non-appropriated Fund Instrumentalities (NAFIS)_ para. 9.2, specifically provides that where military facilities are not available, the use of appropriated funds (APF) to contract with specified local facilities is authorized.

**Operations and Funding**

Air Force Services activities are classified into three categories for determining the source of funding support authorized

for each. These categories are:

**1. Category A, Mission Sustaining Activities**

**2. Category B, Basic Community Support Activities**

**3. Category C, Revenue-Generating Activities**

AFI 34-266 provides that core fitness and sports programs in Air Force Fitness Centers (FC) are Category A activities.

The Air Force goal is 100 percent APF support where authorized in Category A activities. Enhanced sports programs are

Category B activities. Category B activities are supported with APFs and non-appropriated funds (NAF). Revenue gener-

ating activities such as vending and resale services are Category C activities. Category C activities must function with the use of NAFs only. NAF expenditures should be appropriate to the number of participants.

Effective planning and budgeting are essential to ensure successful execution of activities and future projects. Funds gen-

erated from fundraisers may be used to offset the costs of enhanced sports programs, ( _e.g.,_ varsity sports) in accordance with AFI 34-201, _Use of Non Appropriated Funds_. APFs must be used where authorized. The fitness center director (FCD) should coordinate with the resource management flight chief (RMFC) for expenditures with NAFs from either the installation MWR Fund and/or higher HQ NAFs.

Main FCs will be open 112 hours per week. Reserve bases will be open 70 hours per week. Hours of operation must be

displayed within view of customers outside the FC. Installation commanders also have the discretion to alter operation

hours based on available Services personnel and installation mission requirements. Unsupervised, after-hour use of

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Services primary or satellite/annex fitness facilities at MOBs, by units or individuals is prohibited. In addition, age limitations are established and must be displayed in each FC to ensure a safe environment for all FC customers.

For the ANG, the use of fitness rooms is authorized. Facility size normally ranges from 600 to 2600 square feet and is

defined in ANG design guides. The Fitness Room normally provides areas for cardiovascular, free weights, and select

equipment. The installation commander will set the hours of operation based on mission requirements.

Fitness Center Staff (FCS) include personnel from active duty military, full-time ARC personnel, APF and NAF civilians,

local national workers, contractors, and volunteers. A minimum of two staff members must be on duty during all hours

of operation for emergency response capabilities (this does not apply to ANG). FCS and contracted personnel will wear

the AF Informal Uniform. ANG installation commanders will determine the duty uniform for personnel assigned to the

fitness center. The installation commander will determine the duty uniform for personnel assigned to fitness functional

account codes (FAC) for ANG.

FC functional areas under the Fitness Center Director (FCD) include operations, fitness, and sports. The FCD assigns

staff duties to accommodate the various areas of responsibility. _See_ AFI 34-266, 1.11, _et seq_ , for the duties and responsibilities of a FCD.

**Fitness Programs**

The size of the fitness program is based upon the size of the military installation. FCs will provide core programs at no

cost to their customers and where resources are available, provide enhanced programs. Core fitness program require-

ments must be met prior to conducting enhanced programs. FCs will also provide core sports programs for eligible cus-

tomers and, where resources are available, provide enhanced programs. Reserve and ANG bases, GSUs and MUNSS will

meet programming standards established by the MAJCOM.

With respect to the intramural program, the installation commander determines participation which may include active

duty, full-time guardsmen and reservists assigned to base units, adult family members (18 years or older), Department of

Defense (DoD) civilians (including NAF employees), base contract personnel, and active duty foreign nationals. The ex-

tramural program is an extension of the intramural program and may be conducted when demand exists and resources

allow. The program is recreational in nature and has the same administrative, funding, and execution guidelines as intra-

murals, with the exception of fees for some sports. Participation may include active duty, reservists, DoD civilians, family members, base contractors, and local foreign nationals. Finally, enhanced sports programs provide opportunities for base

athletes to compete off-base, with other base, civilian, university and club teams. In general, all sports programs should

include individual and team sports for men and women as well as co-ed teams where possible.

**Fitness and Sports Advisory Council**

This mandatory council meets at least quarterly and functions as an advisory body to assist, coordinate, and assemble

installation resources to support comprehensive fitness and sports programs (to include HAWC programs). The chairper-

son will be the FCD (a non-voting member). The council should include a primary and an alternate representative from

each unit or tenant of the installation. Bases should consider implementing a Commander's Trophy initiative to promote

participation in their sports program. Participation at meetings should be recognized as another way to earn Com-

mander's Trophy points.

**Sports and Fitness Services**

FCs will provide core services to their customers and, where resources are available, provide enhanced services. En-

hanced services may be provided through contracts on a fee basis. Services may include, but are not limited to juice bars,

massage therapy, distinguished visitor (DV) locker room amenities, and parent/child areas (PCA).

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 22, MWR Matters**_

_**Section 22-4 Air Force Fitness and Sports Programs**_

_**Page 3**_

**Training, Staff and Certification Requirements**

1. All levels of training must be documented in the individual's (military, APF, NAF employees) on-the-job-training

(OJT) records.

2. FCS must maintain First Aid certification and either Red Cross CPR plus AED or BLS/AED certification within 30

days of assignment to the FC.

3. FCS must be trained on basic use of exercise equipment within 30 days of assignment to the FC.

4. FCS must attend customer service training within 60 days of assignment to the fitness center and annually thereafter.

5. All military, APF and NAF civilian FCS (excluding contract instructors, personal services contractors, temporary NAF

MOA personnel and Category C front desk clerk/operations employees) must be scheduled to attend the AETC Fitness

Specialist Course (L3AZR3M051) within 180 days of assignment to the FC. ANG members must attend the course

within 180 days of being assigned to the Fitness functional account code.

6. Fitness training from FCD, local experts, HAWC, or other sources must be conducted on a recurring basis to reinforce

course principles and provide current fitness information and sports programming.

7. All staff members (excluding contract instructors, personal services contractors and Category C front desk clerk/

operations employees) must attend the physical training leader's (PTL) course taught by the HAWC Fitness Program

Manager (FPM) within 120 days of assignment to the FC.

8. All FCS members completing basic fitness training are fitness technicians and qualified to deliver equipment orienta-

tions, monitor fitness equipment areas, assist customers, and perform manual and computerized fitness assessments.

9. The FCD must complete the AETC computer-based Activity Manager Course (L60NU34M3) or the Activity Manage-

ment Training Core Topics Course (DL-CB-0301) and attend the follow-on activity specific Fitness Managers Course at

HQ AFSVA within one year of assignment as facility director.

10. At a minimum,the FCD and two FCS members (one must be military for those bases with assigned military) must

successfully complete an advanced fitness course workshop to enhance the learning of material and practical skills.

**Facility Maintenance and Housekeeping**

The FCD or appointed FCS members develop an annual maintenance plan with thorough checklists for each facility.

With respect to facility cleanup and upkeep, the FCD must work with the chain of command to obtain the highest level

of APF custodial support. The FCS should also keep records to indicate which fitness equipment is covered under a main-

tenance contract and adhere to the contract terms to maintain warranties. The FCS should ensure a documented equip-

ment maintenance plan following manufacturer guidelines is in place for all equipment and adhere to the manufacturer's

proper recommendations for maximum equipment function and durability.

**Safety**

The combat support flight commander supports the FCD to ensure facilities and programs meet safety requirements.

The FCD coordinates a medical emergency plan with the director of base medical services (DBMS). Refer to AFI 91-202,

_The US Air Force Mishap Prevention Program_ , AFI 91-204, _Safety Investigations and Reports_ , and AFI 91-301, _The US Air Force Occupational and Environmental Safety, Fire Prevention, and Health (AFOSH) Program_ , for safety standards.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 22, MWR Matters**_

_**Section 22-4 Air Force Fitness and Sports Programs**_

_**Page 4**_

_**KWIK-NOTE: Service members must possess the stamina and strength to complete missions successfully. The Air Force**_

_**Sports and Fitness activities promote personal, mental, physical, and social well-being and develop esprit de corps.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

**SECTION**

Jurisdiction

2-5

Base Facilities Board

3-4

Leases and Armory Use Agreements

3-12

Weddings and Other Social Affairs on Base

3-18

Community Relations Programs

6-4

Relationship with Other Military Components

11-6

Private Organizations and Unofficial Activities

22-2

Dining Social Club Organizations

22-3

Air National Guard Construction

25-7

Contracting Pitfalls

25-8

ANG Facilities

25-9

Installations Jointly or Solely Occupied by the ANG

25-12

Real Property – Acquisition and Retention

25-17

United States Property and Fiscal Officer (USPFO)

25-20

_**Air National Guard Commander's Legal Deskbook**_

771

_**Chapter 22, MWR Matters**_

_**Section 22-5 Morale, Welfare and Recreation**_

_**Page 1**_

**Morale, Welfare and Recreation (MWR) Funds**

**Updated By Lt Col Kristin DeJarlais, June 2015**

**AUTHORITY:** AFI 34-201 and ANG Supp. to 34-201, _Use of Nonappropriated Funds (NAFS)_ (29 Nov 07); ANGI 34-121,

_Dining Social Club Organizations_ (1 Sep 05, Certified Current 26 Sep 13); AFI 34-223 (8 Mar 07, Certified Current, 28 May 09) and ANG Supp., _Private Organization (PO) Program_ (13 Nov 14); applicable state law and regulations. 

## INTRODUCTION

This chapter provides guidance on MWR activities. Unless federalized, ANG units cannot create nor administer federal

Non-appropriated Fund Instrumentalities. However, some state laws allow the formation and governance of state-centric

National Guard MWR accounts and activities. ( _See, for example_ , Utah Code Annotated 39-9-101, _et seq_.) Though outside the scope of this chapter, it may be helpful to become familiar with your own state's legislation in this area.

**FUNDS**

This topic discusses funds generated by MWR activities rather than funds used to establish MWR activities. The subsec-

tion outlines some practical suggestions how a commander can and should successfully control MWR funds on base.

Money generated from various MWR activities on an ANG base can either be a tremendous help to the unit and the _esprit_

_de corps_ of its members, or may present problems for the commander as a result of fraud, waste and abuse. The difference in outcomes is a direct result of how closely the commander monitors these activities.

The "Club" has historically existed as one of the most common sources of funds. Yet the Air National Guard, similar to

the larger Air Force, has moved away from the traditional "Officers Club" and "NCO Club." A growing trend exists to

establish "All Ranks" or consolidated clubs on Air National Guard installations. However, the guidance set forth for an

"All Ranks" Club is consistent with a separate "O" club or an "NCO" club.

**All-Ranks Clubs**

These clubs are separate private organizations with separate taxpayer identification numbers, federal tax-exempt organi-

zation certificate and state sales tax waivers in conformity with state law. The All Ranks Club should have its own sepa-

rate bank account into and out of which only All Ranks Club funds flow. According to AFI 34-223, ANGI Supp. (13 Nov

14), paragraph 10.10.1, only a properly chartered and administered Dining Social Club, in accordance with ANGI 34-121,

_Dining Social Club Organizations_ , may sell alcoholic and malt beverages under the Air Force waiver to this paragraph as documented in paragraph 1.5.2. Therefore, unless an All Ranks Club is properly chartered in accordance with ANGI 34-121, it may not sell alcoholic and malt beverages. "Pilot lounges" or "hooch bars" are prohibited from operation on ANG

or AF installations.

**UNIT MWR FUND**

A unit MWR fund is a separate federal fund pursuant to AFI 34-201 and ANG Supp. I, made up of the monies received

by the unit from its gaining MAJCOM. This fund requires a separate bank account, a separate federal taxpayer identifica-

tion number, a separate MWR Council to expend funds, and auditing procedures established by the cited regulations.

The types of funds and their sources are listed in AFI 34-201. The ANG supplement lists activities that may receive

AAFES dividends. This regulation expands the Special Morale and Welfare (SM&W) expenditure authority to provide

mementos to the spouses of awardees, promoted individuals, retirees, and guests of honor at memorialization (naming a

street, building, etc.) functions. _See_ attachment 8 of AFI 34-201, ANG Supp. I (29 Nov 07). Commanders should ensure they are taking full advantage of AAFES dividends by reviewing the list and implementing anything on the list that does

not already exist on base.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 22, MWR Matters**_

_**Section 22-5 Morale, Welfare and Recreation**_

_**Page 2**_

Generally, private organization or unofficial activities, as defined in AFI 34-223, should be used for subordinate units to

maintain their own separate unit checking accounts. The subordinate unit funds are spent at the discretion of that unit

organization, but must be audited pursuant to state law and regulations governing private organizations or unofficial ac-

tivities.

With noted exception, these are the only funds and accounts the commander should permit on the base on a Wing- or

Group-wide basis.

_**KWIK-NOTE: The generation of money from various MWR activities on an ANG base can either be a tremendous help to the**_

_**unit or may present problems as a result of fraud, waste and abuse. You should closely monitor accounts established to hold**_

_**these funds.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Civil Associations and Military Corporations

22-2

Dining Social Club Organizations

22-3

Morale, Welfare and Recreation (MWR) Programs, Activities and Facilities

22-4

_**Air National Guard Commander's Legal Deskbook**_

773

_**Chapter 22, MWR Matters**_

_**Section 22-6 Using Base-Sanctioned Private Organizations and Non-Federal Entities to Support Open Houses**_

_**Page 1**_

**Using Base-Sanctioned Private Organizations and Non-Federal Entities**

**to Support Open Houses**

**Updated By Capt Attila Bogdan, October 2011**

**AUTHORITY:** AFI 10-1004, _Conducting Air Force Open Houses_ (18 Feb 10); AFPD 10-10, _Joint Use of Military and Civilian Facilities_ (25 Oct 2007); AFI 35-101, _Public Affairs Policies and Procedures_ (18 Aug 10); AFI 34- 262, _Services Programs and Use_ _Eligibility_ (27 Jun 02); AFI 65-601, Volume 1, _Budget Guidance and Procedures_ (03 Mar 05, incorporating through Change 3, 6 Nov 09); 5 C.F.R. 2635; DoD 5500.7-R, _Joint Ethics Regulation (JER)_ , Section 3-300 (30 Aug 93, C4, 6 Aug 98); AFI 34-223, _Private Organization Program_ (8 Mar 07 incorporating Change 1, 30 Nov 10); AFI 36-3101, F _undraising Within the Air_ _Force_ (12 Jul 02); 31 U.S.C. 1342, 1353, 3302; 10 U.S.C. 1588, 2601. 

## INTRODUCTION

The Air Force hosts open houses to enhance the public awareness of Air Force preparedness, demonstrate modern

weapon systems and capabilities, promote positive community and international relations, showcase Airmen and sup-

port Air Force recruiting and retention. The primary purpose of an open house is to educate the public, not to raise funds

for morale, welfare, and recreation (MWR), non-federal entities (NFE), or private organizations (PO). An increasingly

common practice in managing base open houses is for organizers to form a private organization (PO) or NFE to support

the effort, offering flexibility in some areas open house organizers do not have. A truly independent PO or NFE may com-

plement or enhance an official activity by performing services or roles not permitted under official guidelines.

POs are base-chartered, self-sustaining special-interest groups, set up by people acting exclusively outside the scope of

any official capacity as military members, employees, or agents of the federal government. POs are not federal entities

and are not to be treated as such. They operate on Air Force installations with the written consent of the installation com-

mander. A PO could provide refreshments at an official function because fiscal restrictions bar using appropriated funds

for the same. In the context of an open house, a PO could fund costs not ordinarily borne by appropriated or non-

appropriated funds, provide indirect support of the event and manage a bank account for those purposes. A PO could

also donate funds or property to the Air Force for use at an open house.

An NFE is composed of individuals acting outside the scope of any official capacity as officers, employees, or agents of

the federal government. NFEs operating outside the Air Force private organization program have fewer constraints than

do POs. Examples of NFEs include professional military organizations, local chambers of commerce, commercial entities,

or organizations of community leaders formed for the specific purpose of promoting an open house. A PO's or NFE's free-

dom of action in support of an event is not unlimited. There are clear fiscal law limitations and regulatory restrictions

under the PO Program and liability concerns which limit what such an organization can or or should do. This chapter pro-

vides a general overview of how POs or NFEs may be used to complement activities related to operating an open house.

**FISCAL RULES**

**Expenditures**

In general, appropriated funds (APFs) are available to finance various aspects of open houses. APFs are authorized for

those portions of an open house that exist to inform the public about the capabilities, equipment, training and profes-

sionalism of the Air Force and its people. Services can sponsor, with full or partial NAF support, recreational events and

activities (i.e. food and entertainment) held in conjunction with the open house. For example, the expenses incurred by

installations supporting all military crews flying DoD-owned aircraft taking part in aerial demonstration at an open

house are financed with APFs (operations and maintenance (O&M) funds). Warbird crews and their aircraft, which be-

long to NFEs or individuals and which are contracted to perform at open house events, may be financed with APFs

(O&M funds). APFs are not, however, authorized to fund any costs incurred by crews or the aircraft of civilian aerial performance individuals or teams. All costs, including lodging, meals, transportation, may be funded with non-federal or

_**Air National Guard Commander's Legal Deskbook**_

774

_**Chapter 22, MWR Matters**_

_**Section 22-6 Using Base-Sanctioned Private Organizations and Non-Federal Entities to Support Open Houses**_

_**Page 2**_

private funds either donated or provided through the NAF commercial sponsorship program for civilian aerial demonstra-

tions at the open house involved.

Essential elements of expense for open house facilities and accommodations are those expenses that would be incurred if

there were no Services MWR participation. Essential accommodations and facilities such as sanitation (trash containers,

refuse collection), health, safety, security (phones, radios), power outlets, professional public address systems and an-

nouncer, and general comfort of the public are funded with APF only. Expenses incurred to ensure security, provide first

aid, and facilitate safe movement and control the crowds attending the event are also funded with APFs. For a complete

listing of authorized and unauthorized expenditures _see_ Attachment 4, _Funding Source Guide matrix_ of AFI 10-1004 and AFI 34-262, paragraph 2.9.

**Augmentation**

The augmentation rule restricts POs or NFEs from funding any mission-related element of an open house. If a PO pays

expenses that would otherwise be paid for by appropriated funds, an illegal augmentation may occur. As a result, POs are

limited to paying expenses that would not otherwise be paid for with appropriated funds. POs and NFEs may raise funds

and accept donations from outside sources, donate funds and in-kind gifts to the Government, fund expenses not ordinar-

ily borne by appropriated or non-appropriated funds, provide voluntary services to support the open house (see AFI 10-

1004, paragraph 7.6 for procedures), and offer publicity separate from the event itself in exchange for donations. AF per-

sonnel may not solicit NFEs or POs to fundraise for the purpose of gifting items/funds raised to the Air Force. PO or

NFE involvement in an open house must be pursuant to a specific permission or agreement (based on statutory or regula-

tory authority applicable to the type of involvement), such as a contract, gift acceptance, agreement for gratuitous serv-

ices, or commercial sponsorship agreement ( _see_ AFMAN 34-416, Attachment 2, _Standard Sponsorship Agreement_ ).

**Voluntary Services**

Pertinent to a PO's or NFE's involvement in an open house is the authority for acceptance of voluntary services by MWR

programs. Voluntary services are accepted by the installation commander or designee on behalf of the Air Force, where

authorized by law (see 31 U.S.C. 1342). The Air Force may accept gratuitous services pursuant to an advance written

agreement.

To the extent a PO or NFE performs a function that would normally be performed by government employees paid

through appropriated funds (such as management of the mission-related elements of an open house), it potentially vio-

lates the voluntary services prohibition. Some services at an open house may fall into the statutory category of services

"to members of the armed forces and the families of such members." The DoDI directs use of DD Form 2793, _Volunteer_

_Agreement for Appropriated Activities or Non-appropriated Fund Instrumentalities_. Airman and Family Readiness Centers generally manage volunteers for Air Force units. AFI 36-3009, _Airman and Family Readiness Centers_ , para. 3.11.

As a practical matter, when examining open house management or administration by POs, POs must refrain from doing

work that government employees would otherwise do—whether it is considered an augmentation or an illegal voluntary

service. All inherently governmental functions must be performed by Air Force personnel. A base-sanctioned PO com-

posed primarily of government employees may not hold a contract to manage an open house. Furthermore, ANG employ-

ees should not enter into individual agreements with the ANG to provide gratuitous services. It would be extremely diffi-

cult, if not impossible, for employees to separate duties performed in their official capacity from duties official in nature which are performed in an unofficial capacity. Employees may not waive compensation when they are otherwise entitled

by statute to such compensation. Any attempt to do so would be ineffective and constitute prohibited voluntary services.

**Indemnification**

Absent express statutory authority the government may not enter into an arrangement to indemnify, where the amount

of the government's liability is indefinite, indeterminate, or potentially unlimited, whereby the government would cover

_**Air National Guard Commander's Legal Deskbook**_

775

_**Chapter 22, MWR Matters**_

_**Section 22-6 Using Base-Sanctioned Private Organizations and Non-Federal Entities to Support Open Houses**_

_**Page 3**_

the expenses of an open house beyond those assumed by a PO. However, an indemnification agreement that limits liabil-

ity to a specific amount or to available appropriations may be proper if sufficient funds have been certified as available to meet the contingency. POs, contractors and other NFEs are not entitled to sovereign immunity defense by the Department of Justice or similar legal protections accorded to the Air Force or to non-appropriated fund instrumentalities.

**SOLICITATION OF DONATIONS**

A PO or NFE may accept gifts or donations consistent with its purpose. However, a PO's ability to solicit for gifts or do-

nations, or otherwise engage in fundraising, is heavily regulated. A PO may not solicit gifts or donations on-base. Addi-

tionally, any off-base solicitation must be for the PO itself and not for the base or any official part of the Air Force, thus, a PO organized to support an open house may solicit off-base for its own purposes - _i.e._ , to support the open house - so long as the PO solicitors clearly indicate that any donations are to the PO, as a PO, and not to the Air Force. The PO

should also make clear to donors that recognition for donations may not be made publicly, except for a limited acknow-

ledgement at the open house. NFEs and POs must make clear, to all prospective donors, that they do not represent the

Air Force. They may not extend commercial sponsorship or other recognition benefits or advertising privileges on the in-

stallation, or suggest Air Force endorsement of sponsors or sponsorship arrangements or official involvement in obtain-

ing them. When deciding whether to approve a PO fundraiser, the installation should consider the fundraising proposal's

relation to the overall open house and the impact on NAF sales or concessions.

Unless restricted by state or local law, an NFE may raise funds and accept donations. Fundraising activities on an Air

Force installation must comply with the requirements of JER Sections 3-210 and Section 3-211 and AFI 36-3101, _Fund-_

_raising within the Air Force_. A PO or unofficial activity, as defined in AFI 34-223, paragraph 1.1, must also comply with the provisions of that instruction, including the limits of on-base solicitation. DoD employees are subject to further restrictions including soliciting from subordinates or prohibited sources and using DoD position, title or authority for NFE

fundraising. For fundraising in general, POs must comply with the requirements of AFI 34-223, AFI 36-3101, local re-

strictions imposed by the installation commander, and the PO's own charter.

Military members and DoD civilian employee members of a PO are also governed by ethical strictures when soliciting on

behalf of the PO or an NFE. A DoD employee may not solicit from a subordinate (5 C.F.R. 2635.808(c)(1)) or a prohib-

ited source (5 C.F.R. 2635.808(c)(1)(i)). The term "prohibited source" is defined at 5 C.F.R. 2635.203(d) and would in-

clude any Air Force contractor or commercial offeror, and any nonfederal organization seeking official action by the Air

Force. When soliciting funds for a PO, an employee must be acting exclusively outside the scope of his or her official posi-

tion (J.E.R., Section 3-300.a). It must be clear that the employee is not soliciting or accepting a donation because of the

employee's official position (5 C.F.R. 2635.202(a)(2)). To that end, a solicitation may not reference an employee's posi-

tion, title, or authority (J.E.R., Section 3-300.a(1)). For further discussion of these rules, see OpJAGAF 1998/71, 6 July

1998, _Solicitations_. A DoD employee who is an active participant in an NFE (including a PO) or has been an officer of the NFE (including a PO) within the last year or who has a financial interest in the NFE is generally prohibited from engaging in any official activity in which the NFE or PO is a party or has a financial interest. These rules apply to personnel

who have official responsibilities with an open house.

**PUBLIC AFFAIRS ROLE**

PA support to the open house program involves providing advice and guidance to the open house director and installa-

tion commander, ensuring the internal audience is kept well informed of the event, working with local media to maxi-

mize exposure of the event, and ensuring the base continues to be a good neighbor to the local community. PA should

also be prepared to offer guidance and respond quickly in the event of an accident or other emergency.

**CONCLUSION**

In sum, private organizations may be used to hold seed money, raise funds and accept donations from outside sources in

accordance with applicable AFIs, donate funds and in-kind gifts to the government, fund expenses not ordinarily borne

_**Air National Guard Commander's Legal Deskbook**_

776

_**Chapter 22, MWR Matters**_

_**Section 22-6 Using Base-Sanctioned Private Organizations and Non-Federal Entities to Support Open Houses**_

_**Page 4**_

by APF or NAF funds, and provide voluntary services to support the MWR elements of an open house. They should not

be used to contract for aerial events or other activities that could subject the PO membership to personal liability, or to

act as a conduit for in-kind donations that raise similar liability concerns. Moreover, government personnel who are sup-

porting an open house in their official capacity should not actively participate in a PO, the purpose of which is also to support the open house. Under current statutory and regulatory restrictions, POs may not be used to manage APF-funded

activities of an open house, fund activities that are ordinarily borne by APF funds, contract with the Air Force, or offer

sponsorship benefits in exchange for donations. PO members who work for the government may not officially solicit gifts

or donations for the open house; they may do so only in a personal capacity in accordance with governing AFIs and ethi-

cal guidelines. Furthermore, the government may not indemnify a PO for liability or expenses that are indefinite, indeter-

minate, or potentially unlimited, and for which money has not already been allocated. Restrictions arising from statute

cannot be waived; regulatory restrictions may be waived only by the OPR.

_**KWIK-NOTE: There are a number of fiscal and ethics rules implicated in implicated in funding various aspects of open**_

_**houses and air shows. Be aware of those rules and consult your Staff Judge Advocate when organizing such an event.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Access to Military Installations

3-2

Aerial Events, Flyovers, and Static Displays

13-2

Commercial Solicitation on Base

3-9

Gifts from Outside Sources

7-6

Open Houses and Free Speech

3-13

_**Air National Guard Commander's Legal Deskbook**_

777

**Chapter 23, People Problems**

**Table of Contents**

**Section**

23 - 1 Table of Contents

23 - 2 Adoption Expense Reimbursement

23 - 3 Bad Checks

23 - 4 Bankruptcy Notice

23 - 5 Child and Spouse Abuse, Maltreatment and Neglect

23 - 6 Child Custody - Unlawful

23 - 7 Citizenship

23 - 8 Civilian Employment and Guard Membership

23 - 9 Debt Collections

23 - 10 Dependent Support

23 - 11 Domicile

23 - 12 Financial Responsibility

23 - 13 Foreign Divorce Decrees

23 - 14 Former Spouses' Protection Act

23 - 15 Garnishment

23 - 16 Jury Duty

23 - 17 Living Wills

23 - 18 Paternity Claims

23 - 19 Powers of Attorney

23 - 20 Wills

23 - 21 Worldwide Locator Service for Military Personnel

23 - 22 Sexual Assault Response and Protection Program

_**Air National Guard Commander's Legal Deskbook**_

778

_**Chapter 23, People Problems**_

_**Section 23-2 Adoption Expense Reimbursement**_

_**Page 1**_

**Adoption Expense Reimbursement**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** 10 U.S.C. 1052; DoDI 1341.09, _DoD Adoption Reimbursement Policy_ (3 Nov 07, C1, 23 Apr 09), DoD

7000.14-R, Volume 7A, App. A, IRS Tax Topic 607, _Adoption Credit and Exclusion_.

**THE ADOPTION REIMBURSEMENT PROGRAM**

**** This program authorizes a military member (including Coast Guard personnel operating in military service to the Navy) to be reimbursed for certain adoption expenses up to $2,000.00 per adoption with a maximum of $5,000.00 in any calendar year. For married military members, only one member may claim reimbursement. The member must be on active

duty and have served at least 180 days of active duty. AGR status is considered to be active duty for this program. Non-

AGR members who served on Title 10 orders for over 179 days may also be considered "active duty" for this program.

To qualify, the adoption must be finalized after November 2, 2007, and while the member is on active duty, and the appli-

cation must be filed no later than one year after adoption. Also, the member must not have been reimbursed for the

same adoption expenses through any other Federal, state, or local adoption benefits program.

The adoption must have been arranged through a qualified adoption agency or other source authorized to place children

for adoption under State or local law. Private agency adoptions and adoptions of stepchildren must be finalized in a U.S.

court.

A "qualifying" adoption includes adoption by either married couples or a single person, of a child (under 18 years of age

and not the biological offspring of the member adopting), through a U.S. or an inter-country adoption, and also includes

adoption of a child with special needs (as defined by Sect. 473 (c) of the Social Security Act). The reimbursement is paid

for "reasonable and necessary" adoption expenses, which include placement fees, legal fees and court costs, certain medi-

cal expenses, public and private agency fees, and temporary foster care fees (when required by the adoption process).

Travel costs are not reimbursed.

Interested personnel should contact their local force support squadron, customer service section, for guidance and copies

of the application forms. Further information is available from DFAS Cleveland Site, (216) 522-5576/6701. For ques-

tions concerning a claim, an e-mail can be sent to the DFAS Adoption Reimbursement mailbox at

CCL-ADOPTION-REIMBURSEMENT@dfas.mil.

**ADOPTION TAX CREDIT**

You may be able to take a tax credit of up to $12,650 for qualifying expenses paid to adopt an eligible child (for the tax

year 2012). The credit may be available for the adoption of a child with special needs (as defined by the IRS) even if you

paid no qualifying expenses in the year the adoption is finalized. An eligible child is a child with special needs if he or

she is a citizen or resident of the United States and a state determines that the child cannot or should not be returned to

his or her parents' home and probably will not be adopted unless adoption assistance is provided to the adoptive parents.

Qualified adoption expenses are reasonable and necessary adoption fees, court costs, attorney fees, traveling expenses

(including amounts spent for meals and lodging) while away from home, and other expenses directly related to, and

whose principal purpose is for, the legal adoption of an eligible child.

There is also a tax exclusion for employer-provided adoption assistance.

The credit and exclusion are each subject to an income limitation and a dollar limitation. The income limit on the adop-

tion credit or exclusion is based on your modified adjusted gross income (MAGI). For tax year 2012, the MAGI phase out

begins at $189,710 and ends at $229,710. If your MAGI is below $189,710 for 2012, your credit or exclusion will not be

_**Air National Guard Commander's Legal Deskbook**_

779

_**Chapter 23, People Problems**_

_**Section 23-2 Adoption Expense Reimbursement**_

_**Page 2**_

affected by the MAGI phase out, but if your MAGI for 2012 is above $229,710, your credit or exclusion will be elimi-

nated. If your MAGI for 2012 falls between $189,710 and $229,710, your credit or exclusion will be reduced. The credit

can be taken in a tax year even if the adoption is not final, except with a foreign adoption in which case expenses can

only be claimed if the adoption is final in that year.

_**KWIK-NOTE: Adoptions by military members are encouraged. Only AGRs and those on active duty for over 180 days are**_

_**likely to qualify for adoption expense reimbursement.**_ **__******

**RELATED TOPICS:**

**SECTION**

AGR Program

11-4

Benefits

4-2

TRICARE and DEERS

4-3

_**Air National Guard Commander's Legal Deskbook**_

780

_**Chapter 23, People Problems**_

_**Section 23-3 Bad Checks**_

_**Page 1**_

**Bad Checks**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** AFI 36-2906, _Personal Financial Responsibility_ (1 Jan 98); DoDI 1344.12, _Indebtedness Processing Procedures for_ _Military Personnel_ (18 Nov 94, C2 11 Jul 96); applicable state law.

**POLICY**

**** Issuing a check is an express representation there will be funds in the account when the check is presented to the

maker's bank for payment. Air Force policy regarding bad checks is found in AFI 36-2906. DoD policy on processing col-

lection of debts is found in DoDI 1344.12.

1. Air Force members are expected to pay their just financial obligations in a proper and timely manner. AFI 36-2906,

para 3.4.1;

2. Mistakes happen and no action should be taken against a member if the individual has a check dishonored because of

honest error or bank error;

3. If a check is dishonored because of criminal misconduct, intent to deceive, or negligence, then prompt corrective ac-

tion is necessary.

4. A valid debt can cause an involuntary allotment from military pay of any military member including an Air National

Guard (ANG) member. DoDI 1344.12.

While the options for handling bad check issues are somewhat different for the Air National Guard, bad checks issued by

ANG members may be a crime under State law and discredit the Air National Guard. Such conduct may also be prohib-

ited under some state Codes of Military Justice. Because bad checks are serious and potentially criminal matters, State

law should be consulted for appropriate action.

Unlike the Air Force, the ANG commander's authority to take direct action regarding check writing by an ANG member

depends on where the check was passed. If it was passed in a base facility, the appropriate action may be to withhold the

member's participation in the base activity involved. If it constitutes a federal or state civilian law violation, the com-

mander may be able to take disciplinary action under the state Code of Military Justice (if applicable), or take adverse ad-

ministrative action. The appropriate action may include one or more of the above. Since no specific ANG instruction out-

lines procedures for dealing with bad checks, it is imperative ANG commanders consult with their Staff Judge Advocate.

If a bad check is passed at an on-base facility, the installation commander can suspend on-base check cashing privileges.

If the bad check was passed on-base in a federal facility, it may be a crime under federal law. After speaking with the SJA, you may wish to notify the local U.S. Attorney for consideration of prosecution under federal criminal law. If the bad

check was passed on base in a state or privately owned facility, it may be a crime under state law, and after speaking with

the SJA you may wish to notify the state, county or municipal prosecutor for action under state criminal law.

If a member is arrested by civilian authorities for passing bad checks, follow the guidance in the topic in this _Deskbook_ entitled " _ARREST BY CIVILIAN AUTHORITIES_ ," which discusses when and how to take appropriate military action.

**HOW WILL YOU FIND OUT ABOUT IT?**

ANG commanders will normally learn one of their members passed a bad check in one of three ways:

1. Notice from a base facility where the check was passed or from the installation commander;

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_**Chapter 23, People Problems**_

_**Section 23-3 Bad Checks**_

_**Page 2**_

2. A letter or call from a private entity or person to whom the check was given; or

3. Notice by letter, telephone call, or word-of-mouth the member has been arrested by civilian authorities for passing a

bad check.

**AFTER NOTICE OF DISHONOR, FIND OUT WHY**

In order to determine the appropriate action to take upon notice a member passed a bad check, the commander must de-

termine why the check was dishonored. The commander should find out whether the cause was bank or honest error, or

a member's criminal misconduct, fraudulent efforts, or negligence. That factual determination will drive the nature of

any action taken. Experience has shown the member is often the primary source of information. Since issuing the bad

check may be an offense under your state Code of Military Justice, and is probably a crime under your state criminal

laws, any inquiry of the member should involve an advisement of rights under your state Code of Military Justice, or Arti-

cle 31, UCMJ, as applicable. Your SJA must be consulted before questioning the member regarding rights advisement.

Questioning should not be limited to ascertaining fault, but should include any matters in extenuation or mitigation

since these matters can have a major influence on the action taken. See the topic in this _Deskbook_ entitled " _ADVISING_

_SUSPECTS OF THEIR RIGHTS_ " for further guidance.

**ACTIONS AVAILABLE**

After you learn why the check was dishonored, take appropriate action unless honest error or bank error occurred. De-

pending on your state Code of Military Justice, the administrative and disciplinary actions that may be available include:

1. Verbal or written Counseling;

2. Letter of Reprimand;

3. Nonjudicial Punishment;

4. Administrative Demotion;

5. Administrative Discharge; and/or

6. Courts-martial.

In determining the appropriate action to take when a member passed a bad check and it wasn't through honest error or

bank error, the commander should:

1. Review the member's personnel record to get an overall picture of the individual;

2. Consult with the Staff Judge Advocate on appropriate actions;

3. Take appropriate action, including counseling the member concerning Air Force and DoD policies on bad checks and

how such misconduct brings discredit on the Guard.

4. If a letter or telephone call was received, reply to the complainant and advise them the Air National Guard has no

authority to resolve disputed claims or require members to pay a private debt without a civil judgment, and provide a

copy of your response to the SJA.

5. Include this topic in briefings and guidance on expectations for unit members.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 23, People Problems**_

_**Section 23-3 Bad Checks**_

_**Page 2**_

_**KWIK-NOTE: Upon notice that a member has passed a bad check, consult your Staff Judge Advocate before proceeding.**_ **__******

**RELATED TOPICS:**

**SECTION**

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Admonitions and Reprimands - Administrative

24-5

Advising Suspects of Their Rights

8-9

Arrest By Civilian Authorities

8-6

Commander's One-On-One Meeting With Member - Precautions

16-5

Confessions

8-10

Financial Responsibility

23-12

ID Card Retrieval

24-9

Investigation by Commander of Suspected Minor Offenses

16-10

Nonjudicial Punishment

24-11

Preventive Law Program

17-15

Quality Force Management Actions

24-12

_**Air National Guard Commander's Legal Deskbook**_

783

_**Chapter 23, People Problems**_

_**Section 23-4 Bankruptcy Notice**_

_**Page 1**_

**Bankruptcy Notice**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** 11 U.S.C. 101, 105(a), 362, 525; AFI 36-3209. 

## INTRODUCTION

**** All Air National Guard members are expected to pay their financial obligations in a timely manner. However, the Air National Guard maintains a strict policy of neutrality where bankruptcy is concerned. The mere fact a member has filed a

bankruptcy petition, or had debts discharged through bankruptcy, does not provide grounds for initiating adverse action

against that member. An exception occurs if there was a dishonorable failure to pay just debts. If this is the case, even

though bankruptcy was filed, adverse action may be taken.

The Staff Judge Advocate (SJA) should be contacted before considering any adverse action associated with bankruptcy.

When providing financial counseling for members contemplating bankruptcy, contact the SJA for information on how to

handle the problem through the Legal Assistance Program.

**EFFECT OF BANKRUPTCY PETITION ON MILITARY PAY**

Personnel within your command who process pay documents should be alert for bankruptcy petitions concerning indi-

viduals whose pay they process. Filing a bankruptcy petition automatically stays/suspends any collection action against a

member's pay, no matter whether the debt arose before or after the petition was filed (11 U.S.C. 362).

When a commander receives notice that a bankruptcy petition was filed by a service member, the appropriate Finance

Office should be contacted immediately so expedited action can be taken to honor the automatic stay. Such an action is

not discretionary, it is mandatory under Federal law.

If you are uncertain whether a document you receive is a bankruptcy petition, contact your servicing SJA for assistance.

**DOES BANKRUPTCY PROTECT AGAINST ADMINISTRATIVE SEPARATION?**

When a service member files a bankruptcy petition, the military's response typically requires a balancing act. While each

service member has a right to file a bankruptcy petition and seek protection under bankruptcy laws, an ANG member

may nonetheless be administratively discharged for dishonorable failure to pay just debts IAW AFI 36-3209. A dishonor-

able failure to pay just debts may also be charged as a criminal offense under Article 134 of the Uniform Code of Military

Justice, if the ANG member is on extended active duty under Title 10 United States Code. It also may be covered under

your state's Code of Military Justice.

Simultaneously, the Bankruptcy Code provides that no governmental unit (including military departments) may discrimi-

nate in employment, or terminate an employee solely because of bankruptcy (11 U.S.C. 101(27) and 525(a)).

Occasionally, a commander will confront this dilemma when an off-base creditor whose debt the ANG member has listed

in a bankruptcy petition writes a letter to the commander. Such letters typically urge the military commander to main-

tain the military's high standards of honor and discipline and not allow a service member to get away with not paying

their just debts. This may cause a quandary. In sending the letter, the off-base creditor may violate the automatic stay provisions of the Bankruptcy Code if the debt was dischargeable in bankruptcy (dischargeable debts do not have to be paid;

non-dischargeable debts must be paid). (11 U.S.C. 362(a)). The commander may violate the automatic stay by sending a

copy of the creditor's letter to the service member, or by writing the service member about the debt. If this is the case,

the service member could petition the Bankruptcy Court for damages, costs, attorney's fees and punitive damages

against the creditor, and the commander, who may be personally liable to pay them. (11 U.S.C. 362(h)).

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 23, People Problems**_

_**Section 23-4 Bankruptcy Notice**_

_**Page 2**_

Consult your SJA about the kinds of debts that fall into the dischargeable and non-dischargeable categories. Some exam-

ples of non-dischargeable debts are spousal support, child support, and debts incurred after the bankruptcy petition was

filed.

The gist of the analysis for the commander is whether the debts are, or are not, dischargeable in bankruptcy.

**SUMMARY**

1. Administrative separation cannot be based solely on bankruptcy;

2. If there is a dishonorable failure to pay just debts, and the debt is dischargeable in bankruptcy, you can separate the

member if no bankruptcy was filed. But you cannot separate the member if bankruptcy was filed, since the automatic

stay of the bankruptcy filing prohibits separation and collection action;

3. If there is a dishonorable failure to pay just debts, and the debt is not dischargeable in bankruptcy, you can separate

the member if no bankruptcy was filed, and may separate the member even if bankruptcy was filed; and

4. A bankruptcy petition filed before the member was separated may stop the discharge process.

**EMPLOYER DEDUCTION ORDER**

When a service member files a voluntary petition under Chapter 13 of the Bankruptcy Code, the Bankruptcy Court may

ultimately issue a Chapter 13 "employer deduction order" under the authority of 11 U.S.C. 105(a). An employer deduc-

tion order (or earnings deduction order) commonly called an EDO, is the typical way in which a Chapter 13 debtor funds

a bankruptcy plan. The EDO is a court order recognizable by its filing stamp, and requires a specified amount to be de-

ducted from each paycheck of the debtor and sent to the court-appointed trustee who pays the allowable claims of the

military member's creditors.

An EDO is not a garnishment order. The Finance Office must honor an EDO. If an EDO is not honored, it can cause a

contempt sanction being applied by the Bankruptcy Court against the offending military officials, including a Com-

mander. Contempt sanctions include jail and/or fines, which must be paid personally. The government will not pay these

for you.

**CONCLUSION**

Any time a bankruptcy document is received by a commander or Finance officer, they should immediately consult with

the SJA to discuss the appropriate action to be taken.

**KWIK-NOTE: Failure to properly honor a bankruptcy petition or a bankruptcy court order could lead to a com-**

**mander's personal liability for money damages and contempt of court. __******

**RELATED TOPICS:**

**SECTION**

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers Debt Collections

24-4

Dependent Support

23-9

Financial Responsibility

23-10

Former Spouses' Protection Act

23-12

Garnishment

23-15

Personal Liability of Federal and State Officials

18-9

Quality Force Management Actions

24-12

_**Air National Guard Commander's Legal Deskbook**_

785

_**Chapter 23, People Problems**_

_**Section 23-5 Child and Spouse Abuse, Maltreatment and Neglect**_

_**Page 1**_

**Domestic Violence, Maltreatment and Neglect**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** Applicable state law; AFI 40-301, Family Advocacy (30 Nov 09) (for reference only); 18 U.S.C 922(g)(9).

**THE ISSUE**

**** Domestic violence, maltreatment and neglect (collectively "abuse") has become more prevalent in today's society, and is a matter of increasing concern to federal, state and local officials.

**NO ANG-SPECIFIC PROGRAM**

The United States Air Force has a detailed program to address abuse that includes prevention, identification, treatment

and rehabilitation of the abuser, and treatment of military member victims IAW AFI 40-301, Family Advocacy. The Air

Force can also institute administrative and disciplinary actions against the abuser. The Air National Guard does not have

a similar program, and the Air Force program is not directly applicable to the ANG. The Air Force program only applies

to military and civilian personnel and dependents entitled to receive care in a military facility as specified in AFI 41-114, Medical Programs and Benefits.

All states have civil and criminal statutes, regulations, and child and spouse abuse protection agencies to deal with this

situation. Commanders and personnel in ANG units should be sensitive for evidence of such abuse by, to, or among

members and their families. State law usually requires prompt reporting to appropriate civilian law enforcement officials

and protective social service agencies if abuse is suspected.

**CRIMINAL CONVICTIONS FOR DOMESTIC VIOLENCE**

The Domestic Violence Offender Gun Ban (18 U.S.C 922(g)(9)), otherwise known as the Lautenberg Amendment, was

passed into law in 1996. It prohibits anyone convicted of a misdemeanor domestic violence related offense from owning,

transporting, or otherwise possessing or utilizing a weapon. DoD expanded the coverage of this ban to include felony

convictions and convictions by courts-martial. The ban applies to ANG members; which means any ANG member with a

qualifying conviction cannot operate any type of personal weapons system, making the member unqualified for world-

wide duty. If a commander learns an ANG member has such a conviction, you should consult with the SJA because a com-

mander could be held personally liable if the member is allowed to use a personal weapons system.

**COMMANDER'S DUTIES**

Failure of ANG commanders to report known or obvious instances of abuse, or abusers to appropriate officials, could ex-

pose the Air National Guard or the State to liability. A person in a supervisory capacity or position of authority knowing

of abuse may later be found to have had a duty to act ( _i.e._ , report the abuse), and may be required by state law to promptly report suspected abuse.

If one of your members has been adjudicated as a child or spouse abuser, or has been convicted of a criminal offense by

civilian authorities, consult with your SJA about appropriate quality force management and/or disciplinary actions.

_**KWIK-NOTE: Consult with your Staff Judge Advocate before reporting suspected child or spouse abuse to civilian agencies**_

_**and before questioning one of your members about suspected abuse.**_ **__******

**RELATED TOPICS:**

**SECTION**

Personal Liability of Federal and State Officials

18-9

Quality Force Management

24-12

_**Air National Guard Commander's Legal Deskbook**_

786

_**Chapter 23, People Problems**_

_**Section 23-6 Child Custody – Unlawful**_

_**Page 1**_

**Child Custody - Unlawful**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** _Parental Kidnapping Prevention Act of 1980_ , 28 U.S.C. 1738A; _Uniform Child Custody Jurisdiction and Enforcement_ _Act_ (adopted by all states but Massachusetts, D.C, Guam and U.S. Virgin Islands); 18 U.S.C. 1073. 

## INTRODUCTION

**** Child custody disputes are commonplace in our society and sometimes become an illegal exercise of custody by one parent. A parent or relative may fail to return a child to the lawfully recognized custodial parent after a visitation, or take the child from the lawful custodial parent. Congress created a federal crime in instances where someone engages in interstate or international flight to avoid prosecution under state felony statutes for parental kidnapping. (18 U.S.C. 1073).

All but one state (see above) have adopted the _Uniform Child Custody Jurisdiction and Enforcement Act_ , which requires states and their officials to recognize lawful custody determinations of courts with jurisdiction over child custody.

Sometimes a commander may become aware of a potentially an unlawful child custody situation involving an Air Na-

tional Guard (ANG) member. A commander should consult the Staff Judge Advocate (SJA) to determine what responsi-

bility the commander has, if any. One case held the _Parental Kidnapping Prevention Act_ imposes no affirmative duty of compliance on military commanders. ( _Dare v. Secretary of the Air Force_ , 608 F. Supp. 1077 (D. Del. 1985), aff'd per curiam, 787

F.2d 581 (3rd Cir. 1986)), cert. denied, 479 U.S. 846 (1986).

**ANG CONCERNS**

What is the responsibility of the ANG commander in this situation? Once a state court with jurisdiction issues a decree,

judgment, or other order providing for child custody (including visitation rights), that order is valid and enforceable any-

where in the United States. If a child is taken by one parent in violation of that court decree, judgment or order, the law-

ful custodial parent, or someone on the parent's behalf may contact a commander to locate the other parent (and the

child). If that other parent is a member of an ANG unit, there may be Privacy Act or Freedom of Information Act issues

related to the release of information concerning the residence of the member.

Also, if you learn a member may have violated a child custody court decree, judgment or order or the Parental Kidnap-

ping Prevention Act of 1980, immediately seek the advice of your SJA before taking action or questioning the member.

You may need to counsel the member and may need to notify the appropriate civilian authorities. The ultimate goal is to

assure the ANG is not viewed as a "safe haven" for those who have violated the law. A commander could be held liable if

a child is injured or mistreated by the parent in unlawful custody if the commander knew the member had unlawful cus-

tody and did nothing about it.

Finally, aside from federal and/or state offense, your state Code of Military Justice may authorize disciplinary action for

the wrongful act of the member.

You can expect to be contacted by civilian law enforcement officials or process servers about arresting, serving process

upon, or requesting the whereabouts of the member. Before acting upon such requests, consult with your SJA to deter-

mine what duties are imposed upon you in these situations.

_**KWIK-NOTE: Unlawful child custody situations must be dealt with promptly to avoid liability and adverse publicity.**_ ****

_**Air National Guard Commander's Legal Deskbook**_

787

_**Chapter 23, People Problems**_

_**Section 23-6 Child Custody – Unlawful**_

_**Page 2**_

**RELATED TOPICS:**

**SECTION**

Access to Military Installations

3-2

Aid to Civilian Authorities

6-2

Arrest By Civilian Authorities

8-6

Arrests Authorized by the ANG

8-7

Foreign Divorce Decrees

23-13

Freedom of Information Act

14-11

Personal Liability of Federal and State Officials

18-9

Privacy Act

14-12

_**Air National Guard Commander's Legal Deskbook**_

788

_**Chapter 23, People Problems**_

_**Section 23-7 Citizenship**_

_**Page 1**_

**Citizenship**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** 8 U.S.C. 1401, _et seq_ ; USCIS Policy Manual Citizenship and Naturalization Guidance. 

## INTRODUCTION

**** As part of your pre-mobilization legal counseling, encourage all of your members who have documentary evidence of becoming U.S. citizens to safeguard those documents for later use in claims by themselves or their dependents for military

entitlements. This topic is in the _Deskbook_ for informational purposes in case a question of citizenship arises about your members, their dependents, or any prospective ANG member. Matters involving citizenship should be referred to the

Staff Judge Advocate (SJA).

Although 8 U.S.C. 1440(a) allows a member's citizenship application to be accelerated for active military wartime serv-

ice, normal National Guard service does not qualify a member for accelerated citizenship.

**GUIDELINES**

Specific questions about citizenship should be directed to your SJA. However, some general guidance is provided below:

Anyone born in the United States, Puerto Rico, U.S. Virgin Islands, Guam or other U.S. possession is a U.S. citizen

(USC). However, some persons born overseas may be citizens at birth through derivation or descent (as opposed to natu-

ralized citizens), if one or both of their parents are USCs (subject to physical presence or residence requirements dis-

cussed below), or may become USCs through derivation. Persons born on U.S. MILITARY INSTALLATIONS OVERSEAS

ARE NOT USCs by virtue of their place of birth, but may be citizens derivatively through their parent(s).

The following guidelines outline the status of children born overseas to USCs:

**BIRTH TO TWO USC PARENTS (BOTH PARENTS WERE USCs AT TIME OF CHILD'S BIRTH)**

1. Child born overseas to two USC parents BEFORE 24 MAY 1934: There are varying conditions so check with the SJA

for advice.

2. Child born overseas to two USC parents BETWEEN 24 MAY 1934 AND 12 JAN 1941: Child is a U.S. citizen if at least

one of the USC parents was in the U.S. prior to child's birth. The child needs no subsequent residence or presence to pre-

serve citizenship.

3. Child born overseas to two USC parents AFTER 12 JAN 1941: Child is a U.S. citizen at birth ONLY if at least one of

the USC parents had RESIDED in the U.S. or its possessions (i.e., general place of abode - actual dwelling, not merely

legal domicile, except military service overseas counts as U.S. residence) at some time prior to the child's birth. The child needs no subsequent residence or presence to preserve citizenship. IF NEITHER U.S. CITIZEN PARENT EVER RESIDED IN THE U.S. OR ITS POSSESSIONS PRIOR TO THE CHILD'S BIRTH, CITIZENSHIP CANNOT BE PASSED ON.

ONE PARENT MUST PETITION TO MAKE THE CHILD A LAWFUL PERMANENT RESIDENT (LPR).

**BIRTH OVERSEAS TO ONE CITIZEN PARENT**

1. Birth overseas to one citizen parent PRIOR TO 24 DEC 1952: There are varying conditions so check with your SJA.

2. Birth overseas to one citizen parent AFTER 24 DEC 1952:

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 23, People Problems**_

_**Section 23-7 Citizenship**_

_**Page 2**_

a. One U.S. citizen parent and one U.S. national (A U.S. national is generally a person born in American Samoa or

Swains Island, and some non-U.S. citizens born in the old Canal Zone) parent: If the USC parent has at least one year

continuous physical presence in the U.S. or its possessions prior to the child's birth, the child is a USC at birth.

b. One U.S. citizen parent and one alien (EITHER LAWFUL PERMANENT RESIDENT (LPR) OR ANY FOREIGN NA-

TIONAL (FN)) parent: The USC parent must have been physically present in the U.S. or one of its possessions for at

least ten years before the child's birth, and at least five of the ten years must have been after the age of 14, for the child to be a citizen at birth. If the USC parent is less than 19 or spent less than ten years in the U.S. or its possessions prior to the birth, the child is NOT a U.S. citizen at birth. However, honorable service overseas as a U.S. military member, or

civilian U.S. government employee, or as a dependent of such military or civilian, counts as time in the U.S. to pass on

citizenship. ALSO, CHILDREN BORN BEFORE OCT 10, 1978, AND GAINING U.S. CITIZENSHIP THROUGH THE

USC PARENT 10 YEAR/5 YEAR RULE MUST SPEND AT LEAST 2 TO 5 YEARS IN THE U.S. BETWEEN THE AGES

OF 14 AND 28 TO RETAIN CITIZENSHIP.

c. Child born overseas to U.S. citizen mother out of wedlock is a U.S. citizen regardless of mother's age if the USC

mother was physically present in the U.S. continuously for at least one year any time prior to the birth of the child. For

example, an 18-year old USC woman who spent most of her life in the U.S. prior to going overseas can pass on citizen-

ship to her child whose father is an alien, only if she does NOT marry the alien.

d. Child born overseas out of wedlock to U.S. citizen father gets retroactive citizenship as of birth ONLY IF the child is

legitimized by the USC father before the child turns 21.

**GENERAL COMMENTS ON BIRTH OVERSEAS**

1. IN OTHER CASES, including certain births in Panama, seek advice from HQ USAF/JAO or the INS.

2. Children born overseas to one or two U.S. citizen parents MAY also be considered citizens by their country of birth or

of the country of their mother's birth, but there is no general rule. Notwithstanding, if they are U.S. citizens, they should have a U.S. State Department (consular) Report of Birth Abroad of a Citizen of the U.S. (FS-240) or an INS Certificate of

Citizenship (AA-Series) to prove it. With either document, they can obtain a U.S. Passport, which is proof of U.S. citizen-

ship. There is some legal question whether a child is a "natural-born citizen" qualifying for the Presidency, since citizen-

ship is statutory, not Constitutional (as it is for citizens born in the U.S.) (14th Amendment to the Constitution).

3. Other children born overseas: If the child is not a U.S. citizen by birth, the child may be eligible for some other status or may later become eligible for some status.

a. Child born overseas to a U.S. LPR: A child born overseas to a mother who is an LPR of the U.S., and who is temporar-

ily visiting abroad, can be registered and admitted as an LPR without an immigrant visa under 8 CFR 211.4 and 211.1. If

a child does not qualify as a USC but the mother is a U.S. LPR, the child can be registered as an LPR. The mother and

child must return to U.S., Puerto Rico, or Virgin Islands for the registration when possible, but no later than two years

after birth. The mother should not return to the U.S. after the birth without the child.

b. Children born overseas to U.S. citizens and/or LPRs not otherwise eligible for automatic USC or LPR status should

have their USC or LPR parent immediately petition for them to attain LPR status, either at a U.S. consular office over-

seas or at an INS office in the U.S.

4. Remember people born in Puerto Rico, U.S. Virgin Islands, or Guam are USCs at birth, regardless of parentage and

should have a birth certificate to prove this. Check for other possessions or associated territories on a case-by case basis.

5. People born on U.S. bases overseas do not acquire citizenships by being born on base, unless the base is in Puerto

Rico, Guam or U.S. Virgin Islands.

_**Air National Guard Commander's Legal Deskbook**_

790

_**Chapter 23, People Problems**_

_**Section 23-7 Citizenship**_

_**Page 3**_

**CHILDREN GETTING CITIZENSHIP AFTER BIRTH, OR LATER DERIVATION OR NATURALIZATION**

If the child is not a USC at birth, the following applies:

1. Child who is not a citizen (born to two USC parents): A USC parent must petition to give child LPR status, and then

can petition for the child's naturalization if the child is under 18.

2. Child who is not a citizen (born to one USC parent): The USC parent should petition to give child LPR status. The

USC parent can then petition for the child's naturalization while the child is under 18. The child will receive a Certificate of Naturalization. Or the child can become a citizen by derivation if: the child becomes an LPR, the second parent becomes a USC by naturalization before the child is 18, and the child has resided in the U.S. prior to the age of 18.

3. Child (born to two non-U.S. citizens) who is not a citizen can become a USC if, before the child is 18, the child be-

comes an LPR and resides in the United States, and any of the following occur:

a. Both the parents become USCs by naturalization;

b. One parent dies and the surviving parent becomes a USC by naturalization;

c. The parent with legal custody of the child becomes a USC by naturalization (and the parents are legally separated or

divorced); or

d. The mother of a child born out of wedlock (and the child has not been legitimated by the putative father) becomes a

USC by naturalization.

4. In other cases, the USC parent or parents of an LPR child under 18 can petition for naturalization.

5. Except for veterans of wartime service, all persons must first become LPRs to be naturalized as USCs. Anyone acquir-

ing citizenship by derivation after birth must be an LPR first.

6. Adopted children are generally considered the same as natural children for citizenship as long as they are residing in

the United States with their adoptive parent(s) under a lawful admission for permanent residence, and they were

adopted before 16. Adopted children of members serving overseas may also be eligible.

7. For purposes of immigration, however, stepchildren are not accorded "child" status for naturalization.

8. For immigration and naturalization purposes, "child" means an unmarried minor. Married children under 18 cannot gain naturalization benefits through their parents and must wait until 18 to file for naturalization.

9. Parents cannot derive citizenship from their USC children, but USC children, 21 and over, can petition to get LPR

status for their parents.

_**KWIK-NOTE: For questions of citizenship, always check the latest guidelines, which may be obtained from the INS.**_ **__******

**RELATED TOPICS:**

**SECTION**

Benefits

4-2

Counseling

24-7

Domicile

23-11

Enlistment of Airmen – Defective

1-15

Personal Affairs

20-3

Asylum and Refuge Requests

15-2

_**Air National Guard Commander's Legal Deskbook**_

791

_**Chapter 23, People Problems**_

_**Section 23-8 Civilian Reemployment Rights for Guard Members**_

_**Page 1**_

**Civilian Reemployment Rights for Guard Members**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** _Uniformed Services Employment and Reemployment Rights Act_ , 38 U.S.C. 4301 through 4333. 

## INTRODUCTION

**** The rules relating to rights of Guard members concerning their civilian employment are found in the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). USERRA was enacted to codify several issues that arose

from litigation. Most USERRA provisions apply to employment on or after December 12, 1994. However, provisions deal-

ing with disability were retroactive to August, 1990; the health insurance provisions became effective 13 October 1994;

and some pension rules did not become fully effective until 13 October 1996. Therefore, care must be taken when deal-

ing with these issues to initially determine which law would apply.

Generally, USERRA precludes discrimination in employment because of military membership or duty requirements, and

provides a remedial procedure to correct violations.

**BACKGROUND AND DISCUSSION**

The protections of USERRA extend not only to veterans completing tours of active duty, but also to National Guard and

Reserve personnel attending unit training assemblies, undergoing annual training, attending military schools, serving

under mobilization orders, or performing other types of duty. By protecting the civilian employment rights of National

Guard and Reserve personnel, USERRA helps implement the Total Force policy. For National Guard and Reserve person-

nel to train properly and perform "real world" missions without unnecessary distraction, they must be able to leave their

civilian jobs without suffering a penalty or detriment. Civilian employers are required to provide administrative leave for

employees serving in the National Guard or Reserve to engage in military duty.

**PRACTICAL TIP**

Commanders should work closely with their Staff Judge Advocate (SJA) to handle all civilian employment matters. Your

SJA should establish contact with the nearest Office of Veterans Reemployment Rights of the U.S. Department of Labor

to obtain current literature and refer members for assistance with their civilian employment rights problems.

**HIGHLIGHTS OF USERRA**

**Basic Premises:** (1) An employee or applicant for employment cannot be denied employment, reemployment, retention

in employment, promotion, or any benefit of employment on the basis of having served in the military. (2) A person ab-

sent from his or her civilian employment because of military service is entitled to be reemployed by his or her employer

in the same or similar position upon return from military service.

**Employers Subject to USERRA:** Every employer in the U.S., including, federal, state, local government, and private

firms.

**Persons Protected:** Any person who "is a member of, applies to be a member of, performs, has performed, applies to

perform, or has an obligation to perform service in a uniformed service."

**Duty Covered:** Voluntary or Involuntary Service, active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, or absence from work for a fitness examination. This includes atten-

dance at special schools.

_**Air National Guard Commander's Legal Deskbook**_

792

_**Chapter 23, People Problems**_

_**Section 23-8 Civilian Reemployment Rights for Guard Members**_

_**Page 2**_

**Maximum Cumulative Absence Rules/School and Long Tour Rules:** Cumulative length of absence for duty and of all

previous absences from job with any one employer may not exceed 5 years (this limitation only applies to specific types

of duty). Any change in employers starts a new 5 year clock. (Consult with the SJA on qualifying duty under this rule).

Time, frequency, and duration of training or service absence or the nature of service (including voluntary) shall not be

the basis of denial of protection.

**Civilian Job Return Rights**

_If duty was less than 91 days, the person is entitled to --_

1. The position the person would have held had the person remained continuously employed without service interrup-

tion (escalator principle), if qualified or can become qualified after reasonable efforts by employer or

2. The position the person held on commencement of military service absence, only if not qualified after reasonable ef-

forts by employer to hold position discussed in paragraph a.1 above.

(Unlike prior law – there is no option of offering other jobs of equivalent seniority, status, and pay).

_If duty was 91 days or more, the person is entitled to --_

1. The position the person would have held had the person remained continuously employed without service interrup-

tion (escalator principle) or

2. A position of like seniority, status, and pay as to paragraph b.1 above, so long as qualified or can become qualified after reasonable efforts by employer (Unlike in section a. above, the employer can offer an equivalent job instead of the job

member "would have attained") or

3. If not qualifiable for positions in paragraphs b.1 or b.2 above, then:

a. In the employee's position held on commencement of military service absence or

b. In a position of like seniority, status, and pay to that job

c. If not qualified or qualifiable for a. or b. option positions, then in any other position of lesser status and pay

with full seniority, if qualified.

d. Reasonable efforts include training but do not include undue hardship on employer. Undue hardship means sig-

nificant difficulty or expense, considering:

1. Nature and cost

2. Overall financial resources, number of employees, effect or impact at the location

3. Overall financial resources of employer, number of employees, number, type and location of facilities

4. Operation type, work force, geographic separateness, administration or fiscal relationship of facility to employer

If two or more entitled to same position, first to have left a position has prior right of reemployment.

What if disability incurred in or aggravated during military service? The following three-part reemployment scheme is

required for persons with disabilities incurred or aggravated while in military service.

1. The employer must make reasonable efforts to accommodate a person's disability so that the person can perform the

duties of the reemployment position.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 23, People Problems**_

_**Section 23-8 Civilian Reemployment Rights for Guard Members**_

_**Page 3**_

2. If, despite reasonable accommodation efforts, the person is not qualified for the position due to the disability, the person must be reemployed in a position of equivalent seniority, status, and pay, to the escalator position. The employee

must be qualified to perform the duties of this position or be able to become qualified to perform them with reasonable

efforts by the employer.

3. If the employee cannot become qualified for the position in either (1) or (2), the person must be employed in a posi-

tion that, consistent with the circumstances of that person's case, most nearly approximates the position in (2) in terms

of seniority, status, and pay. Such a position may be a higher or lower position, depending on the circumstances.

**Return to Work Procedure**

_If duty is between 1 to 30 days_ \-- The person must report to employer by the beginning of the first regularly scheduled work period that begins on the next calendar day following completion of service, after allowance for safe travel home from the

military duty location and an 8-hour rest period. If, due to no fault of the employee, timely reporting back to work would

be impossible or unreasonable, the employee must report back to work as soon as possible after the expiration of the 8-

hour period.

_If duty is between 31 to 180 days_ – Apply no later than 14 days after completion of service. If submission of a timely application is impossible or unreasonable through no fault of the person, the application must be submitted as soon as possible

on the next day when submitting the application becomes possible.

_If duty is 181 or more days_ \-- Submit application no later than 90 days after completion of service.

_Time extensions_ (if hospitalized for or convalescing from an illness or injury incurred in or aggravated while performing military service) for up to two years. Plus, extension of the two years for minimum time required to accommodate the

member for circumstances that make time to report back impossible or unreasonable.

Failure to report on time does not forfeit job automatically. Military member employee is subject to employer's conduct

rules/policies/practices for discipline.

**Q: What kind of notice is required before departing for service?** Written or verbal notice prior to departure is re-

quired unless precluded by military necessity or if impossible or unreasonable (per regulations of Secretary of Defense).

**Q: What kind of return documentation?**

If absent over 30 days, give employer documentation upon request that shows:

1. Application to return is timely if gone over 30 days and

2. Accumulated service does not exceed 5 years absence from that employer if gone over 30 days and

3. No disqualifying service discharge, dismissal, etc.

Employer may not deny reemployment if documentation does not exist or is not readily available.

**Q: Discharge Type Affects?**

Member loses USERRA rights if Dishonorable or Bad Conduct Discharge by courts-martial, or Under Other Than Honor-

able Conditions Discharge by an administrative discharge proceeding, or Dropped from the Rolls, or Dismissed.

**Q: Multiple covered persons/occupied position?**

If two or more returning military members have the same job rights—the first to have left for military duty has priority

right to former position. Returning employee not receiving former position because of multiple eligible returnees is eligi-

ble for other positions providing similar status and pay with full seniority.

_**Air National Guard Commander's Legal Deskbook**_

794

_**Chapter 23, People Problems**_

_**Section 23-8 Civilian Reemployment Rights for Guard Members**_

_**Page 4**_

No bumping of person with a superior claim for veterans. ****

**Special Protections for Returning Service member**

No discharge from civilian job without cause:

1. Within 1 year, if military service was over 180 days.

2. Within 180 days, if military service was over 30 but less than 181 days.

3. If 30 days or less duty, no discharge because of duty.

_Exceptions_ :

1. Reemployment of a person is excused if an employer' s circumstances have changed so reemployment of the person

would be impossible or unreasonable. A reduction-in-force that would have included the person would be an example.

2. Employers are excused from making efforts to qualify returning service members or from accommodating individuals

with service-connected disabilities only when doing so would be of such difficulty or expense as to cause "undue hard-

ship."

**Seniority Rights**

Reemployed service members are entitled to the seniority and all rights and benefits based on seniority that they would

have attained with reasonable certainty had they remained continuously employed.

A right or benefit is seniority-based if it is determined by or accrues with length of employment. On the other hand, a

right or benefit is not seniority-based if it is compensation for work performed or is made available without regard to

length of employment. ****

**Rights Not Based on Seniority**

During a period of service, the employees must be treated as if they are on a furlough or leave of absence. Consequently,

during their period of service they are entitled to participate in any rights and benefits not based on seniority that are

available to employees on comparable nonmilitary leaves of absence, whether paid or unpaid. If there is a variation in

benefits among different types of nonmilitary leaves of absence, the service member is entitled to the most favorable

treatment so long as the nonmilitary leave is comparable.

Employees are entitled not only to nonseniority rights and benefits available at the time they left for military service, but also those that become effective during their service and that are provided to similarly situated employees on furlough or

leave of absence.

_**Pension Benefit Plans:**_

ERISA covered plans (Sec. 3(2) and 3(33) of the Employee Retirement Income Security Act of 1974) or any federal or

state law provided pension plan for government employees are treated as follows:

1. No break in service for military duty absence

2. Military service will constitute service with the employer to determine non-forfeitability of accrued benefits and ac-

crual of benefits.

3. Employer must fund and allocate the employer contribution for the absent military member in the same manner and

extent as other employees.

4. If plan requires employee contributions or provides for employee deferrals (IRS Code, Section 402(g)(3)), employee is

entitled to employer funded accrued benefit contribution allocations only to the extent the employee makes payments.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 23, People Problems**_

_**Section 23-8 Civilian Reemployment Rights for Guard Members**_

_**Page 5**_

5. To calculate the salary basis for the contributions:

a. Use salary/rate of compensation would have received during military absence or

b. If not reasonably certain, use employee's average salary/rate of compensation during 12 months immediately

preceding the military duty (or, if less than 12 months duty, the prior period of employment equal to military duty time)

_Thrift covered plans_ are treated per 5 U.S.C. 8432(b) as follows:

1. Employee may make upon return contributions in the amount that would have been made for the period of military

duty absence, reduced by any actually made during absence.

2. Contributions can be made over period of time elected by employer and in addition to resume or elected regular contri-

butions upon return to employment.

3. Executive Director of plan shall prescribe time, form, and manner in which employee may specify the total amount

and time period for payments, including a maximum time limit which cannot be less than 2 times or over 4 times the

period of military duty absence.

4. If employee makes contributions, employer must make its contributions.

5. Employer contribution shall be 1% of employee's basic pay (rate would have been paid during military absence), re-

duced by any the employer made.

6. Employer may be required to pay lost earnings on contributions made up for the absent period under procedures set

forth for calculating/crediting prescribed by the Executive Director of the plan.

7. No break in service for military duty absence at employee's option.

8. If reemployed during 2 Aug 90 - 13 Oct 94 (before the effective date of USERRA (13 Oct 94), employee is deemed (for

Thrift provisions) to have not been reemployed until 13 Oct 94, or first day following actual reemployment, whichever

occurred first.

9. Retroactive to a release from military duty, triggering return to civilian employment, which occurred after 2 Aug 90, 5

U.S.C. 8432(e), Section 4 of P.L. 103-353, 108 STAT. 3172.

10. If absent over 90 days, employee may be required to provide documentation of eligibility (timely application for reem-

ployment, proof of no absences exceeding 5 years, and no adverse discharge) before pension entitlements extended

_**Health Insurance**_

Military member employee may elect to continue group health insurance for self and/or dependents during period of mili-

tary duty absence. Period of coverage is the lesser of:

1. 18 months from date employee leaves from civilian job, or

2. Day after employee failed to return to civilian job on time.

Employee must pay premiums as would other COBRA covered employees, but not over 102% of the full premium (em-

ployer and employee portions). Exception: If military duty is less than 31 days, employee need only pay the employee

share of premium for coverage of self and/or dependents.

No exclusion or waiting period may be imposed on employee or dependents upon return to employment unless it relates

to an illness or injury determined by Secretary of Veterans Affairs to have been incurred in or aggravated during perform-

ance of military duty. Then, a LOD or Physical Board and VA rules extend case coverage.

**Vacation/Salary Continuation**

Upon request employee is entitled to use during military duty absence any vacation, annual, or similar leave accrued

prior to duty absence.

Employer is not required to continue salary. ("Benefit" is other than wages or salary for work performed.) May use leave

of absence without pay.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 23, People Problems**_

_**Section 23-8 Civilian Reemployment Rights for Guard Members**_

_**Page 6**_

**Remedies**

Employee files written complaint on form prescribed with Secretary of Labor through Regional Department of Labor of-

fice. Technical assistance is to be provided by Department of Labor.

Department of Labor is to investigate and resolve complaint through reasonable efforts. Subpoena power for witnesses

and documents. (Exception: legislative branch and judicial branch are exempt.) If unsuccessful, Department of Labor no-

tifies the complainant of the results of the investigation and rights to proceed under 38 U.S.C. 4323 if state/local govern-

ment or private employer, or 38 U.S.C. 4324 for Federal Executive agency.

No authority for Department of Labor for Thrift plan disputes. (Pursue those complaints through Thrift plan administra-

tive appeals and litigation.)

_State/local government or private employer_

Upon receipt of Department of Labor notification of unsuccessful resolution, complainant may request that Department

of Labor refer complaint to U.S. Attorney General. The U.S. Attorney General, if reasonably satisfied the complainant is

entitled to rights or benefits under USERRA, may bring enforcement action in U.S. District Court.

Complainant may initiate own legal action IF

1. Chose not to apply to Department of Labor; or

2. Chose not to request referral to U.S. Attorney General; or

3. Has been refused representation by the U.S. Attorney General. ****

_Damages/remedies court may order:_

1. Comply with Act

2. Compensate lost wages or benefits

3. Payment of liquidated damages equal to the amount in section 2 above, if court determines there was an employer will-

ful failure

4. Prejudgment interest

5. No fees or court costs to claimant

6. If private attorney retained, court may award reasonable attorney fees, expert witness fees, and other litigation ex-

penses.

Court may use temporary or permanent injunctions, temporary restraining orders, and contempt orders to enforce the

Act. No suits may be brought by the employer or pension plans. No state statute or limitations applies.

_Federal Executive Agencies_

Federal Executive Agency includes U.S. Postal Service, Postal Rate Commission, NAFs, 5 U.S.C. 105 agencies (other

than 5 U.S.C. 2302(a)(2)(C)(ii) types covered by 38 U.S.C. 4325), and any military department in 5 U.S.C. 102 regard-

ing civilian employees. 38 U.S.C. 4303(5).

Complainant, after filing complaint with Department of Labor, who receives a notification of an unsuccessful effort to

resolve the matter, may request the Labor Department to refer the matter for litigation before the Merit Systems Protec-

tion Board (MSPB) and to Office of Special Counsel under 5 U.S.C. 1211.

If Office of Special Counsel is reasonably satisfied of complainant rights entitlement, the Special Counsel may appear as

attorney for the employee before the MSPB. If Special Counsel declines, complainant shall be notified.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 23, People Problems**_

_**Section 23-8 Civilian Reemployment Rights for Guard Members**_

_**Page 7**_

Complainant can pursue own complaint with/without own attorney IF: ****

1. Chose not to apply to Department of Labor; or

2. Received an unsuccessful effort notice from Department of Labor; or

3. Chose not to be represented by the Special Counsel; or

Received notice from Special Counsel of intent not to represent.

MSPB can order the Federal agency to compensate loss of wages/benefits, besides other remedies of the Act. MSPB may

award reasonable attorney fees, expert witness fees, and other litigation expenses. Adverse finding before MSPB may be

appealed by employee to U.S. Court of Appeals for the Federal Circuit. ****

_5 U.S.C. 2302(a)(2)(C)(ii) agencies (FBI, CIA, DIA, CIO, NSA, and other intelligence agencies) ****_

Each agency to prescribe procedures providing for 38 U.S.C. 4313 reemployment rights. Designate agency official to de-

termine if reemployment is impossible or unreasonable. If determined impossible or unreasonable, agency official shall

notify employee and Office of Personnel Management (OPM). ****

Employee can still seek information assistance from Department of Labor but the determination is not subject to judicial

review. Director of OPM shall ensure an offer of employment if impossible or unreasonable to return to former position

and employee applies.

_State Agency Employers_

There may not be a judicial remedy against state agencies under USERRA because of state sovereign immunity ( _See Alden_

_v. Maine_ , 119 S.Ct. 2240). However, state law may provide a remedy for employees of state agencies. ****

**State Statutory Protections**

The legislatures of many states have enacted state statutes to protect the civilian employment rights of National Guard

members and Reservists. Such state legislation is permitted under federal law and in some states is more protective than

USERRA provisions. A commander assisting an Air National Guard member with a civilian employment rights problem

should consult the SJA for information regarding state civilian employment rights statutes which may be helpful.

**PROBLEM AREAS – SHIFT WORK**

Commanders may find they have more civilian employment rights problems with local, state, and federal governmental

entities that employ firemen, policemen and nurses, who work shifts. Unit training assemblies for members of Reserve

components interfere with weekend shift assignments to the dismay of supervisors. The local police department or fire

department of a small town will often include several persons who are serving in the National Guard or Reserve. Their

supervisors become distressed when several personnel have military duty on the same weekend. Commanders and SJAs

may find it helpful to deal with mayors and city attorneys rather than with lower level supervisors in resolving civilian

employment rights problems involving policemen and firemen.

It is not uncommon for civilian employment rights problems to arise with the United States Postal Service, where em-

ployees serving in the National Guard or Reserve may also be needed for weekend shifts.

Another problem area involves civilian employers who assign work time on rotating shifts. Civilian employers must

grant employees who work on rotating shifts leaves of absence to perform military training with the National Guard and

Reserve just as they must grant leaves of absence to non-rotating shift employees. Many employers encourage and per-

mit their National Guard and Reserve employees who work on rotating shifts to swap work assignments with others to

accommodate military duty needs and to make up work time lost.

_**Air National Guard Commander's Legal Deskbook**_

798

_**Chapter 23, People Problems**_

_**Section 23-8 Civilian Reemployment Rights for Guard Members**_

_**Page 8**_

However, the United States Supreme Court has ruled employers are not required to provide work rescheduling assis-

tance to shift employees who are National Guard members and Reservists, unless such rescheduling assistance is pro-

vided to other shift employees who do not serve in the National Guard or Reserve.

**Practical Considerations**

_ESGR_ ****

A source of possible assistance is the National Committee for Employers Support of the Guard and Reserve, an activity

of the Department of Defense. This National Committee may be reached at a toll free number, 1-800-336-4590.

Most states have a comparable State Committee for Employers Support of the National Guard and Reserve. Air National

Guard members and their commanders may contact the State Committee for Employers Support of the National Guard

and Reserve through the Adjutant General's office in their respective states.

_Local Unit Action ****_

Often, civilian employment rights problems can be resolved without having to invoke the assistance of the United States

Attorney, the Office of Veterans Reemployment Rights in the Department of Labor, or the National and State Commit-

tees for Employers Support of the Guard and Reserve.

Often a polite but firm letter to a civilian employer from the Commander or the SJA will achieve the desired result. Such

a letter should explain, in straightforward language, the Total Force concept, the civilian employment rights protections

given by federal (and often state) law, make discreet mention of the United States Attorney and the Department of Labor,

and appeal to the employer's patriotism. Such a letter should explain how important it is to the national defense that Na-

tional Guard and Reserve personnel be given leave from their civilian jobs to undergo required military training without

loss of any benefits. Such a letter sent in advance of any additional training (besides the regular UTA or AT periods)

could also prevent civilian employment rights problems. Such a letter is often most effective when sent to an executive of

the employer rather than a lower level supervisor. In today's environment, many civilian employers are simply unaware

of the civilian employment rights protections given by law to National Guard and Reserve personnel. A firm but courte-

ous letter to such persons may often resolve a civilian employment rights problem. A commander should write a civilian

employer only if the SJA has reviewed the letter.

_Requesting Leave of Absence - Goodwill ****_

While the law indicates a member of the National Guard or Reserve must request a leave of absence from the civilian em-

ployer to perform military training, there is no requirement the request be in writing. However, some employers may pre-

fer a written request. A written request for a leave of absence for military training may prevent misunderstandings.

While the law does not specify when a request for a leave of absence should be made, common sense indicates a Na-

tional Guard member or Reservist should make the request at the earliest possible date.

Many National Guard and Reserve personnel find it helpful to provide civilian employers with copies of military duty or-

ders or unit training assembly schedules when these documents are printed. Again, there is no legal requirement for

these documents to be provided.

_**KWIK-NOTE: Although the laws heavily favor the military member, since traditional Guard members work full-time for**_

_**their civilian employers, tact, persuasion, and restraint should first be tried to resolve any problems before bringing in the**_

_**U.S. Department of Labor or equivalent state authority.**_

_****_****

_**Air National Guard Commander's Legal Deskbook**_

799

_**Chapter 23, People Problems**_

_**Section 23-8 Civilian Reemployment Rights for Guard Members**_

_**Page 9**_

**RELATED TOPICS:**

**SECTION**

AGR Program

11-4

Benefits

4-2

Counseling

24-7

Labor Relations

5-5

Legal Assistance Program

17-8

Newcomer's Briefing

1-22

Preventive Law Program

17-15

Veterans Benefits

4-8

Pre-mobilization Legal Counseling

20-4

_**Air National Guard Commander's Legal Deskbook**_

800

_**Chapter 23, People Problems**_

_**Section 23-9 Debt Collections**_

_**Page 1**_

**Debt Collections**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** DoD 7000.14-R, _DoD Financial Management Regulation_ , Vols. 4 (Oct 12) and Vol. 5 (Dec 12); AFMAN 65-116, Vol. 2 (16 Mar 07). 

## INTRODUCTION

**** This topic deals with ANG collection of debts owed to the United States by ANG members. It does not apply to private debts of ANG members to other creditors, including dependent support.

**PROCEDURES AND REQUIREMENTS**

Debts owed by ANG members to the United States, its agencies and instrumentalities, may be collected voluntarily or

involuntarily through the procedures prescribed in DoD 7000.14-R, Volumes 4 and 5. The unit's servicing Finance officer

is the appropriate person to start such actions. In cases of doubt as to the appropriateness of beginning such collection,

the servicing Staff Judge Advocate's (SJA) advice should be sought. As a general principle, Finance officers must take

timely and aggressive collection action regarding any debts owed to the U.S. Due process requirements in such actions

require written demands for debt payment and an opportunity for the debtor to respond with agreement or objection.

The government prefers to collect its debts in a lump sum. However, agreements may be made for installment payments.

Interest, penalties, and administrative charges may accrue from the time when the first demand for payment is made.

Debts owed to the United States may be recouped involuntarily by salary offset under federal law. These procedures are

prescribed in DoD 7000.14-R, Volumes 4 and 5, and AFMAN 65-116, Vol. 2. The government may compromise, suspend

or terminate a collection activity under specified circumstances. These circumstances are listed and described in DoD In-

struction 7000.14, Volumes 4 and 5.

**RELIEF FROM COLLECTION**

Frequently, a service member facing debt collection by the United States seeks waiver or remission of the debt. The key

elements for the government to grant such waiver or remission are:

1. That the debt or erroneous overpayment was not caused by the act of the service member; and

2. That the recoupment of the money by the government will work a serious financial hardship on the member.

Requesting waiver or remission may or may not temporarily suspend involuntary collection of the debt while the matter

is under adjudication. If relief is granted, it may cause either termination of collections, or restoration of previously recouped payments to the service member.

For a more detailed discussion of this area, see the Deskbook topic entitled, " _Remission and Waiver of Indebtedness_."

**RELATED TOPICS:**

**SECTION**

Bad Checks

23-3

Bankruptcy Notice

23-4

Garnishment

23-15

Legal Assistance Program

17-8

Remission and Waiver of Indebtedness

1-33

Travel Advances

27-10

Travel Vouchers

27-12

_**Air National Guard Commander's Legal Deskbook**_

801

_**Chapter 23, People Problems**_

_**Section 23-10 Dependent Support**_

_**Page 1**_

**Dependent Support**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** AFI 36-2906, _Personal Financial Responsibility_ (1 Jan 98). 

## INTRODUCTION

**** This topic deals with debts ANG members owe to their non-military dependents. AFI 36-2906 specifies and outlines the obligation of Air Force personnel to pay all just financial obligations in a proper and timely manner. Specific actions under that AFI would apply to AGR members.

**RESPONDING TO DEPENDENTS' COMPLAINTS**

Issues of dependent support most frequently arrive at the commander's office by way of a telephone call or a letter from

a complaining spouse, former spouse, or other dependent of an ANG member. The commander should be appropriate

and courteous with the caller or the writer, but careful not to promise a specific outcome. You may advise the caller or

writer you will discuss the matter with the member and advise the member to adhere to lawful obligations. You may not:

1. Admit or imply liability of a member for the claimed dependent support;

2. Divulge that administrative or disciplinary action will be taken;

3. Act as an intermediary for any party; or

4. Provide legal advice to the dependent of available remedies within the military to collect the dependent support.

Refer any written complaints to your Staff Judge Advocate (SJA) for drafting an appropriate response.

**NEUTRALITY IS A MUST**

Some complaints may "tug at your heartstrings." They may paint a picture of a deadbeat (ANG member) living well

while the dependent spouse and many small children are going without enough food, clothing or shelter because your

member has refused to honor court-ordered support obligations. You may be appalled at your member's alleged conduct.

However, as a commander, you must remain neutral.

With the potential for an emotional response, take care when you talk to the member about the complaint. What the

member says may establish later adverse actions against the member.

**POLICY**

The Air Force policy states dependent support is an aspect of meeting one's just financial obligations. The standard is

that adequate support must be provided, but the Air Force does not arbitrate what is adequate. Commanders have no

authority to unilaterally deduct money from a member's pay for support of dependents, even if a civilian court has or-

dered the member to pay such support.

**BAQ (AGR)**

One related objective standard is that a member may only draw Basic Allowance for Quarters (BAQ) at the "with depend-

ent" rate if the BAQ is being used entirely for the benefit of one or more of the member's dependents. Payment to, or for

the benefit of, any (not necessarily all) dependents fulfills this minimal requirement. Failure to support in this manner

may cause BAQ recoupment for the periods of non-support. Members should be advised they may not receive BAQ at

_**Air National Guard Commander's Legal Deskbook**_

802

_**Chapter 23, People Problems**_

_**Section 23-10 Dependent Support**_

_**Page 2**_

the with-dependent rate if they do not provide financial support to their spouse or children, and refusal to support family

members will cause termination of BAQ entitlement at the with-dependent rate.

**GARNISHMENT**

Occasionally, a civilian court Garnishment Order or Summons for spousal maintenance/alimony and/or child support

arrearages (not for current obligations) may be received by the command. These should properly be referred to the Fi-

nance officer for transmittal to the Defense Finance and Accounting Service (DFAS). The servicing SJA should be con-

sulted on the legal sufficiency of the garnishment action and its underlying judgment, and should assure an appropriate

response is made to the court within the prescribed time. Since military pay may be garnished for spousal maintenance

and child support arrearages, upon receipt of a Garnishment Order or Summons, the commander should also refer the

member to the SJA for legal assistance and an explanation of the member's rights and obligations. AFI 36-2906, Attach-

ment 2, is a detailed fact sheet regarding garnishment of military pay for child support and alimony obligations.

**CONCLUSION**

Although some AFI 36-2906 provisions appear to apply to AGR members, commanders should consult with their SJA on

any dependent support situations which arise and may lead the commander to take adverse military action against the

member.

_**KWIK-NOTE: Commanders may terminate entitlements being improperly used, but cannot compel members to support their**_

_**dependents.**_ **__******

**RELATED TOPICS:**

**SECTION**

Bad Checks

23-3

Bankruptcy Notice

23-4

Domestic Violence, Maltreatment and Neglect

23-5

Claims

15-7

Commander's Meeting With Members

16-5

Ethics

7-3

Financial Responsibility

23-12

Foreign Divorce Decrees

23-13

Former Spouses' Protection Act

23-14

Garnishment

23-15

Legal Assistance Program

17-8

Officership

1-24

Quality Force Management Actions

24-12

Paternity Claims

23-18

_**Air National Guard Commander's Legal Deskbook**_

803

_**Chapter 23, People Problems**_

_**Section 23-11 Domicile**_

_**Page 1**_

**Domicile**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** 50 U.S.C. Appendix 574; Black's Law Dictionary; applicable state law. 

## INTRODUCTION

**** The concept of domicile, besides affecting the civilian affairs of your members, may also affect their "home of record" as that term is defined by instructions and regulations. Persons may list a "home of record" different from their domicile.

**DEFINITION**

The word "domicile" is derived from the Latin " _domus,_ " meaning home or dwelling house, and domicile is the legal concept of "home," _i.e._ , the place where people have their true, fixed and permanent home and principal establishment, and to which whenever they are absent they have the intention of returning. "Domicile" is also the established, fixed, permanent, or ordinary dwelling place or place of residence of a person, as distinguished from the person's temporary and tran-

sient, though actual, place of residence. It is the legal residence, as distinguished from the temporary place of abode; or

the home, as distinguished from a place to which business or pleasure may temporarily call. _See_ Black's Law Dictionary.

"Citizenship," "habitancy," and "residence" are words which may mean precisely the same as domicile. "Domicile" and

"residence," however, are frequently distinguished, in that domicile is the home, the fixed place of habitation while resi-

dence is a transient place of dwelling. People can have many residences, but usually only one domicile. When we talk of

domicile, we mean a State in the United States, or a specific place outside the U.S.

**KINDS OF DOMICILE**

Domicile may be established three ways -- domicile by birth, domicile by choice, and domicile by operation of law. The

first is where you were born. The second is where you voluntarily elect to live. The third depends upon applicable conse-

quences, like that of a spouse arising from marriage.

**RULE**

An existing domicile continues until a new one is acquired, and a person who changes domicile may have to later prove

the change. Generally people neither lose nor gain a new domicile solely by being absent from the old domicile or pre-

sent in the new residence in compliance with military orders.

**THE EFFECT OF DOMICILE**

Domicile or residence may affect questions of a person's personal property, income, gross income, the validity of Wills,

Powers of Attorney, Living Wills, taxes, motor vehicle registration and licensing, voting, the ability to sue or be sued in

the courts of a state, and other civilian matters. Militarily, "domicile" or "residence" may also affect a person's "home of record," the proper completion of travel vouchers, and the sending or receiving of notices or other military documents.

**HOW TO CHANGE DOMICILE**

To change domicile, you must initially satisfy the following criteria:

1. You must be physically located and have an actual address in the new location;

2. You must intend to remain in the new location indefinitely or treat the new location as your permanent home; and

3. You must intend to abandon your old domicile.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 23, People Problems**_

_**Section 23-11 Domicile**_

_**Page 2**_

Practically speaking, domicile cannot be changed by insisting you intend to remain in your new domicile and abandon

your old one. You must produce evidence of your intentions. Normally, several actions in your new state can serve to

"prove up" your intent as to domicile:

1. register to vote;

2. obtain a driver's license;

3. register your vehicle and transfer title;

4. purchase real estate and apply for the homestead exemption;

5. change your W-4 form;

6. execute a will;

7. open a checking account and other bank accounts;

8. obtain professional licenses, if appropriate.

All of these actions do not automatically establish domicile for legal purposes, but go to the question of a member's in-

tent to treat the new location as their permanent home.

You may also manifest your intent through actions in your old domicile, such as selling real estate, closing bank ac-

counts, and terminating other business relations.

This topic should be covered in Finance and Command briefings to your members and is normally a part of the Legal As-

sistance and Preventive Law Programs. All questions on domicile and residency should be referred to the SJA. Some Re-

lated Topics below are impacted by a person's domicile.

_**KWIK-NOTE: Absent acts showing intent to change domicile, the place of military service does not determine domicile. The**_

_**unit must know every member's "home of record."**_

**RELATED TOPICS:**

**SECTION**

Citizenship

23-7

Counseling

24-7

Driver's Licenses Foreign Divorce

21-3

Decrees Jury Duty

23-13

Legal Assistance Program

23-16

Living Will and Medical Power of Attorney

17-8

Notarial Acts

23-17

Personal Affairs

17-13

Checklist

20-3

Powers of Attorney

23-19

Preventive Law Program

17-15

Quarters

25-16

Travel Vouchers

27-12

Wills

23-20

_**Air National Guard Commander's Legal Deskbook**_

805

_**Chapter 23, People Problems**_

_**Section 23-12 Financial Responsibility**_

_**Page 1**_

**Financial Responsibility**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** AFI 36-2906, _Personal Financial Responsibility_ (1 Jan 98) (reference only). 

## INTRODUCTION

**** AFI 36-2906 specifies and outlines the obligation of Air Force personnel to pay all just financial obligations in a proper and timely manner. This topic focuses on private non-dependent debts owed by ANG members. Dependent support is

covered in _Deskbook_ Section 23-10.

**RESPONDING TO OUTSIDE COMPLAINTS**

In the ANG, a problem of personal financial responsibility will normally come to the commander's attention by way of a

phone call or letter from the creditor of an ANG member. The member may be an AGR, a Technician, or a traditional

Guard member. While the caller or writer should be treated with respect and courtesy, it should be clarified the ANG can-

not intervene directly between the parties and the matter must be handled in the civilian courts. The ANG is not a collec-

tion agency. The usual response to the caller or writer is the commander will discuss the matter with the ANG member

and remind the member about the member's legal responsibilities.

ANG commanders have no authority to compel their members to comply with their legal financial responsibilities. In re-

sponding to creditors, commanders MUST NOT:

1. Admit or imply liability of a member;

2. Divulge that administrative or disciplinary action will be taken;

3. Act as an intermediary for any party; or

4. Provide legal advice to the creditor of available remedies within the military to collect the debt.

The discussion with the member should be informative to the member about the contact from the creditor, but it should

not be judgmental or disciplinary. If a follow-up response to the caller or writer was promised, the commander and the

member should agree who will do it. Commanders should refer complaint letters to their Staff Judge Advocate (SJA) for

assistance in drafting an appropriate response. What the member says may establish later adverse actions against the

member.

**ACTION AGAINST MEMBER**

If calls or letters from different creditors regarding the same member become frequent, the commander should deter-

mine an appropriate course of action after consult with the SJA. The issues of service-connection and impact on duty per-

formance and mission accomplishment must be carefully considered before taking any administrative or disciplinary ac-

tion.

**GARNISHMENT**

Occasionally the commander is served with a Garnishment Order or Summons from a civilian court, indicating a judg-

ment has been entered against an ANG member, and involuntary collection action is being sought by the creditor from

the member's ANG pay. This topic is discussed in this Deskbook section entitled " _Garnishment_." AFI 36-2906, Attach-

ment 3 is a detailed fact sheet regarding personal indebtedness and involuntary allotments for civil debts.

_**Air National Guard Commander's Legal Deskbook**_

806

_**Chapter 23, People Problems**_

_**Section 23-12 Financial Responsibility**_

_**Page 2**_

**DEBTS TO THE GOVERNMENT**

Debts of ANG members to the government or its non-appropriated fund instrumentalities (NAFIs) created by bouncing

checks on base or running up charges at the clubs are amenable to Air Force debt collection procedures addressed in the

_Deskbook_ section entitled " _Debt Collections_."

**BANKRUPTCY**

Relief in bankruptcy is available to Air Force ANG members as it is to any other person. This topic is discussed in this

_Deskbook_ section entitled " _Bankruptcy._ "

**ACTION BY MEMBERS FOR WRONGFUL CONTACT BY CREDITOR**

Under the laws of many states, the employer (ANG) of the debtor (member) cannot be contacted about a consumer debt

of the member without the written consent of the debtor, unless there is a court judgment by the creditor against the

debtor, or the debt arose from a bad check. If a creditor violates such an applicable law in the state where your base is

located, refer the member to your SJA for legal assistance and advice.

_**KWIK-NOTE: ANG commanders cannot compel their members to pay their private debts.**_

**RELATED TOPICS:**

**SECTION**

Bad Checks

23-3

Bankruptcy Notice

23-4

Claims

15-7

Commander's Meeting With Members

16-5

Dependent Support

23-10

Ethics

7-3

Former Spouses' Protection Act

23-14

Garnishment

23-15

Legal Assistance Program

17-8

Officership

1-24

Quality Force Management Actions

24-12

Remission and Waiver of Indebtedness

1-33

_**Air National Guard Commander's Legal Deskbook**_

807

_**Chapter 23, People Problems**_

_**Section 23-13 Foreign Divorce Decrees**_

_**Page 1**_

**Foreign Divorce Decrees**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** Uniformed Services Former Spouse Protection Act, 10 U.S.C 1408; AFI 36-3026V1, _Identification Cards for_ _Members of the Uniformed Services, Their Family Members, and Other Eligible Personnel_ (17 Jun 09, C1 2 Nov 09); OpJAGAF

1987/9, _Foreign Divorces, Determination of Validity for Entitlement_ (16 Jan 87); applicable state law.

**JUDGE ADVOCATE REVIEW REQUIRED**

****

If an ANG member submits a foreign divorce decree as supporting documentation for termination of ID card and other

military entitlements of the former non-military spouse, the servicing Staff Judge Advocate (SJA) must review the decree

and render an opinion on its validity under U.S. law. The standard for review is whether the court order would be valid

under U.S. law. The local SJA should send the opinion to State Headquarters/JA for further processing to NGB/JA. A for-

eign divorce decree is not accepted as documentation until a final legal determination on the decree's validity is made.

**STANDARD OF REVIEW**

Foreign divorces must be valid under U.S. law. Foreign divorces of doubtful validity may not be used to establish or termi-

nate an Air Force administered entitlement, unless a court of competent jurisdiction in the U.S. has declared the divorce

valid. Foreign divorces are of doubtful validity when the foreign court lacked subject matter jurisdiction because neither

party established a bona fide domicile, even though the laws of the foreign country do not require residence or domicile

as a condition to jurisdiction. Temporary presence to establish domicile solely to obtain a divorce does not establish bona

fide domicile under U.S. law, even if the residence requirements of that foreign jurisdiction are met. Comptroller General

Decisions at 61 Comp. Gen 104 (1981) and 55 Comp. Gen. 533 (1975) illustrate these principles. These circumstances

may arise when a member pursued a "quickie" divorce in a foreign country where they made a short visit.

**COURT OF "COMPETENT JURISDICTION"**

Under the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. 1408, divisions of military retired pay and gar-

nishments of active duty pay may only be made through a court order issued by a "court of competent jurisdiction,"

which is defined by the statute as a court of any State, the District of Columbia, the Commonwealth of Puerto Rico,

Guam, American Samoa, the Virgin Islands, the Northern Mariana Islands, and the Trust Territory of the Pacific Islands.

It also includes any court of a foreign country with which the United States has an agreement that requires the United

States to honor the country's court order. It does not include a court order issued by any other foreign sovereignty.

**RULE**

An existing domicile continues until a new one is acquired, and a person who changes domicile may have to later prove

the change. Generally people neither lose nor gain a new domicile solely by being absent from the old domicile or pre-

sent in the new residence in compliance with military orders.

**EFFECT OF INVALID DIVORCE DECREE**

The effect of a foreign divorce decree that is not validated means if the ANG member remarries, new ID cards and mili-

tary entitlements to non-military spouses will be unavailable since the former spouse retains those entitlements until

terminated by a validated divorce decree. Also the former spouse may continue to file for survivor benefits instead of the

new spouse. All affected ANG members should be aware of these risks.

_**KWIK-NOTE: Alert your Personnel and Finance Sections to submit all foreign divorce decrees presented to them by your**_

_**members, to your SJA for legal review.**_

_**Air National Guard Commander's Legal Deskbook**_

808

_**Chapter 23, People Problems**_

_**Section 23-13 Foreign Divorce Decrees**_

_**Page 2**_

**RELATED TOPICS:**

**SECTION**

Benefits

4-2

TRICARE and DEERS

4-3

Counseling

24-7

Domicile

23-11

Former Spouses' Protection Act

23-14

Garnishment

23-15

ID Card Retrieval

24-9

Legal Reviews

17-11

Personal Affairs Checklist

20-3

Preventive Law Program

17-15

Veterans Benefits

4-8

Pre-mobilization Legal Counseling

20-4

_**Air National Guard Commander's Legal Deskbook**_

809

_**Chapter 23, People Problems**_

_**Section 23-14 Former Spouses' Protection Act**_

_**Page 1**_

**Former Spouses' Protection Act**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** _Uniformed Services Former Spouses' Protection Act_ , 10 U.S.C. 1072, 1076, 1086, 1408, 1447, 1448, 1450 and 1451. 

## INTRODUCTION

**** Federal legislation has rarely created a greater concern or emotional reaction among our members and retirees than did the Uniform Services Former Spouses' Protection Act (USFSPA). USFSPA applies to all active duty personnel, and members of the Reserve Forces, including AGRs, technicians (for military pay), and traditional Guard members. Many of our

service members and retirees do not understand how this legislation works. Many are confused why a state court can

take a portion of their well-deserved military retirement and award it to their former spouse! An understanding of

USFSPA is important for all commanders because the marital discord of your unit members often spills over into efforts

to maintain good order and discipline.

**BACKGROUND**

In 1982, Congress enacted USFSPA to allow state courts to divide military retired pay upon divorce, and allow some for-

mer spouses the opportunity to receive a portion of the member's retired pay directly from the government. The legisla-

tion also allows former spouses to be beneficiaries under the Survivor Benefit Plan (SBP), and allows qualifying former

spouses to receive the same benefits as surviving spouses of military retirees (such as care at military medical facilities

and access to military exchanges and commissaries). An amendment to USFSPA also extended some of these benefits to

some victims of spousal or child abuse.

**RETIRED PAY (PENSION)**

The biggest issue for most members under USFSPA is the division of military retirement pay. The USFSPA sets no limits

on the amount of retirement pay awarded to a former spouse. Courts are required only to make an equitable division.

The definition of "equitable" will always be different and fact dependent: it may range from zero to over 50 percent. The

court will consider the length of the marriage and the number of married years coinciding with creditable military serv-

ice, but there is no magic number. States are allowed to treat military retired pay as a piece of marital property, similar to civilian pensions. A division of retired pay does not automatically affect an award of alimony or spousal maintenance.

The USFSPA does not create a right in the former spouse to the military member's retired pay. Only state law can do

that. USFSPA only allows state courts to treat a military pension as it does any other pension, if certain conditions are

met. In essence, while the USFSPA does not create a right in the former spouse to the military member's pension, it does

not prohibit exercising that right if the state court so orders.

The state court cannot order a member with 20 or more years of creditable service to retire. However, if a member is get-

ting divorced before compiling 20 "good" service years for retirement, state courts are not prohibited under the USFSPA

from providing for a future distribution of the military pension, if it "vests" (20 "good" years), and the member eventu-

ally retires.

**Division of Retired Pay as Distribution of Marital Assets**

Under 10 U.S.C. 1408(c) (1), a state court may treat retired pay as property belonging only to the military member, or to

both the member and the spouse, according to that state's law. The pension can be divided if state law permits. Most

states permit this division. The few that do not permit a division usually award higher spousal support, or divide other

property in favor of the spouse, to make up for it.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 23, People Problems**_

_**Section 23-14 Former Spouses' Protection Act**_

_**Page 2**_

Federal, state and territorial courts of competent jurisdiction can divide retired pay; and foreign courts can divide it, if a treaty exists requiring mutual compliance as between that country's law and U.S. law.

**When Can the Court Divide the Pension?**

The court can only treat retired pay as property for distribution under state law as part of the marital assets if it has jurisdiction over the member. Jurisdiction must be based on either:

1. The member's residence, other than because of military assignment;

2. The member's domicile; or

3. The member's consent to the court's jurisdiction.

The member's due process rights of notice of the proceedings and an opportunity to be heard must be complied with.

The Servicemembers Civil Relief Act must be complied with when it applies. See the topic in this _Deskbook_ entitled,

" _SERVICEMEMBERS CIVIL RELIEF ACT (FEDERAL AND STATE)_ " for a discussion of when that statute applies.

**How Long Must the Marriage Have Lasted Before the Pension May be Divided?**

There is no set minimum time for the duration of the marriage for a division of retired pay to take place. This is com-

pletely within the court's discretion under state law. (This "no minimum length of the marriage" rule for division of the

pension must not be confused with the minimum length of marriage rules for direct payment to the former spouse dis-

cussed later in this topic.)

**Only "Disposable" Retired Pay May be Divided**

If the court apportions retired pay between the member and the spouse, only "disposable retired pay" (DRP) may be di-

vided. DRP is defined at 10 U.S.C. 1408(a) (4) as the member's monthly retired pay minus certain deductions, such as:

1. Income tax withholdings;

2. SBP premiums;

3. Overpayments and recoupment by the U.S. government;

4. Forfeitures ordered by a court-martial;

5. Waivers of retired pay required by law to receive compensation under 5 U.S.C. (federal civil servants) and 38 U.S.C.

(veterans benefits); and

6. If the member is entitled to disability pay, the product of the member's monthly retired pay and the percentage of the

disability. This is because disability pay under Chapter 61 of Title 10 is not part of retired pay and belongs solely to the member. (For example, if monthly retired pay is $500.00, and the member is 40% disabled, $200.00 is deducted from the

monthly retired pay and is not subject to division as marital property.)

**How Much of DRP Can Be Awarded to the Former Spouse?**

The USFSPA sets no limits on the amounts of the DRP awarded to former spouses. This is completely within the discre-

tion of the court and state law. The former spouse conceivably could get it all. Again, do not be confused between the "no

limits" rule for amounts awardable, and the maximum award subject to direct payment discussed later in this topic.

_**Air National Guard Commander's Legal Deskbook**_

811

_**Chapter 23, People Problems**_

_**Section 23-14 Former Spouses' Protection Act**_

_**Page 3**_

**What a Court Order Awarding DRP Must Say to be Valid**

10 U.S.C. 1408(a) (2) (c) requires court orders dividing retired pay for property settlement to express awards to former

spouses "in dollars or as a percentage of disposable retired or retainer pay."

**Direct Payment**

_What is Direct Payment? ****_

Direct payment of an award of the military member's pension is a valuable right to the former spouse because the pay-

ment comes directly from DFAS to the former spouse. If there is no direct payment under USFSPA, DFAS pays the mili-

tary member the full pension amount without regard to the court ordered award to the former spouse, and it is up to the

military member to pay the former spouse the amount due as ordered by the court. While failure to obey the court order

is punishable as contempt of court, it is easy to imagine a disgruntled military member delaying payments due their for-

mer spouse long enough to be inconvenient and annoying, yet just short of being held in contempt of court. There are

members who neglect to pay their former spouses at all, so direct payment is better for the former spouse because the

government does not take sides - it complies with court orders and makes direct payments to the former spouse to the

extent permitted by USFSPA.

_What are the rules on percentage of DRP to be directly paid?_

The total amount of the member's retired pay directly payable to a former spouse cannot exceed 50% of the member's

DRP. Again, do not confuse the right to receive DRP with the right to receive direct payment. Amounts of the DRP

awarded in the court order over 50% of the DRP must still be paid to the former spouse by the member.

The "50% maximum" means that, if a member has multiple spouses who have court orders awarding them payments

from the member's retired pay, the court orders are treated on a first-come, first-served basis, and the total of a mem-

ber's DRP collectively paid directly to all former spouses with the required court orders cannot exceed 50% of the DRP.

There is one exception to the 50% cap: if the member's retired pay is also garnished under 42 U.S.C. 659, for arrearages

of child support or child and spousal support, the cap for direct payment can rise to 65% of the member's DRP.

_What are the substantive requirements to qualify for direct payment?_

There are two substantive requirements which must be met before direct payment will be made:

1. The court order must be a final decree of divorce, marriage dissolution, annulment or legal separation, or a court ap-

proved property settlement agreed to by the military member and the former spouse; and

2. The final decree must provide for either:

a. Child support; or

b. Spousal support (alimony); or

c. If the division of retired pay is paid as part of the property settlement: The marriage must have overlapped with

at least 10 years of the member's service creditable for retirement; and the court order must express payment in dollars

or a percentage of the member's DRP.

This means assuming the decree is final, the pension award can satisfy either current child or spousal support if either

type of support is in the court order. (This is not the same as garnishment of pay, discussed in _Deskbook_ section " _Garnishment_.") The pension can also be directly paid to the former spouse as part of the property settlement, if the court order correctly recites at least 10 years of the marriage between the member and former spouse coincided with 10 "good years"

of the member's service for retirement, and the court order expresses the award in dollars or a percentage of the pension.

_**Air National Guard Commander's Legal Deskbook**_

812

_**Chapter 23, People Problems**_

_**Section 23-14 Former Spouses' Protection Act**_

_**Page 4**_

To distinguish some things:

1. The "10 year marriage/service overlap" rule only is required for direct payment from the government if the pension is

awarded as part of a property settlement. This "10 year overlap rule" does not apply to child or spousal support.

2. If the military member and former spouse were married less than 10 years (although there can be no direct payment of

the pension as part of the property settlement, failing to meet the "10 year overlap rule") it does not invalidate the court order awarding part of the pension to the former spouse. All it means is the former spouse must receive the pension portion awarded by court order from the military member and not directly from DFAS.

_What are the procedural requirements to qualify for direct payment?_

Before DFAS will begin direct payments, the former spouse must comply with certain procedural requirements. DD

Form 2293 includes the first six necessary items listed below and items 7-10 must be provided in addition to DD Form

2293 (although items 1-6 could be provided separately):

1. Written application requesting the direct payment;

2. The member's name and social security number;

3. Written statement the court order has not been modified by the court or appealed by the former spouse;

4. Agreement by the former spouse that future overpayments are recoverable and subject to involuntary collection from

the former spouse or the estate of the former spouse;

5. Agreement by the former spouse to notify the agency if the court order is vacated, modified or set aside. This includes

notice of the former spouse's remarriage if part of the payment is for spousal support, or changes in eligibility for child

support if part of the payment is for child support;

6. Name and address of the former spouse;

7. Certified copy of the court order and divorce decree, certified within 90 days of its service on the agency;

8. If the order was issued while the member was in Title 10 status, proof that the member's rights under the Servicemem-

bers Civil Relief Act were honored;

9. Proof of the date of marriage, if not stated in the court order; and

10. Service of the above personally, or by registered or certified mail, return receipt requested on the: Defense Finance

and Accounting Service, Cleveland DFAS-HGA/CL, PO Box 998002, Cleveland, OH 44199-8002. Questions can be ad-

dressed by DFAS Customer Service at (888) 332-7411.

_When will direct payments start and how often?_

Once the substantive and procedural requirements are met, payment of the designated amount will be made directly to

the former spouse by DFAS, and not more frequently than monthly. Payments will begin 90 days after the effective serv-

ice of the court order on DFAS or the date on which the member first becomes eligible for retired pay, whichever is later.

_When will direct payments stop?_

Direct payments terminate upon the earliest of the following three events:

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 23, People Problems**_

_**Section 23-14 Former Spouses' Protection Act**_

_**Page 5**_

1. The terms of the court order are satisfied;

2. The death of the retired member; or

3. The death of the former spouse.

This means the former spouse cannot transfer while alive, or through a will, the right to receive direct payments.

**Practical Tips**

Guidance on USFSPA entitlements and direct payment can be found on the DFAS website at:

www.dfas.mil/garnishment/usfspa.

**MILITARY MEDICAL CARE**

Former spouses are entitled to military medical care if they were married for at least 20 years to a military member who

performed at least 20 years of service creditable for retired pay, and there was either a 20 year or a 15 year overlap of the marriage and the military service. The first group is called "20/20/20" former spouses; the second, "20/20/15" former

spouses. The extent of military medical benefits depends on which group the former spouse falls in. If the former spouse

is in neither group, there is no right to military medical care.

If the former spouse is in either group, there are two additional requirements for military medical benefits entitlement:

1. The former spouse must not be remarried; and

2. The former spouse must not be covered by an employer-sponsored health plan.

**20/20/20 Former Spouses**

20/20/20 former spouses who remain unremarried and do not have an employer-sponsored health plan are entitled to

full military medical benefits. They will be put on the DEERS system automatically, and have the choice of using either

TRICARE or military facilities, if available. If they need hospitalization and live within the prescribed area of a military hospital, they must seek admission there. If they are issued a statement of non-availability, they may then use a civilian

hospital and civilian doctors. The same rules that apply to retirees apply to former spouses including the TRICARE de-

ductible. TRICARE coverage ends when the former spouse reaches age 65 and goes on Medicare.

**20/20/15 Former Spouses**

20/20/15 former spouses who remain unremarried and do not have an employer-sponsored health plan are entitled to

military medical care for one year after the divorce is final, and are eligible to participate in a group insurance plan with limited coverage for one year after their military medical care coverage ends. There is no coverage after two years.

**Unremarried – No Reinstatement**

The former spouse who qualifies for military medical care, then remarries, then becomes unmarried because of divorce,

annulment or death of the former spouse's new spouse, cannot have the military medical care entitlement reinstated.

**Employers-Sponsored Health Plan – Limited Reinstatement**

A former spouse who otherwise qualified for military medical care except for having employer-sponsored health cover-

age, and who becomes no longer covered by employer-sponsored health coverage, can have military medical care benefits

_**Air National Guard Commander's Legal Deskbook**_

814

_**Chapter 23, People Problems**_

_**Section 23-14 Former Spouses' Protection Act**_

_**Page 6**_

reinstated for a period not to exceed one year from the date of dissolution of the marriage between the former spouse

and the military member. The termination of employer-sponsored health coverage often comes after this deadline.

**COMMISSARY AND EXCHANGE PRIVILEGES**

Only 20/20/20 former spouses who remain unremarried are eligible for commissary and exchange privileges. For the Air

Force, the regulatory authority for these benefits prescribed by the Secretary of Defense is AFI 36-3026. A 20/20/20 for-

mer spouse who remarries, can requalify for commissary and exchange benefits when the disqualifying remarriage ends

due to divorce, annulment, or death of the former spouse's new spouse.

**SURVIVOR BENEFIT PLAN (SBP)**

Former spouses are eligible to be covered under a member's SBP if certain rules are followed and requirements are met

in accordance with 10 U.S.C. 1447, _et seq_. Basically, the rules cover two situations of elections for former spouse coverage: by retiring members and by retired members. Because the election of retiring members is more relevant for ANG

units, only those rules will be discussed here.

**Rules**

Only one spouse may be covered by the SBP. Members must designate which one of multiple former spouses is covered.

Election for coverage for a former spouse precludes payment of the SBP to a present spouse. Children of the member and

the former spouse may also be covered. If the member is married at the time of election to cover the former spouse, the

present spouse must be notified of the election.

Former spouse elections can only be made under a court order, or a written agreement between the member and the for-

mer spouse, which has been approved by a court order. Evidence of this must be signed by the member and former

spouse and submitted at the time of the election. Former spouse elections may be revoked by the member, but only if the

court order or written agreement approved by the court order has been modified to permit the revocation.

Spouses married to members when they were elected for coverage, and then divorced when the member retires are then

former spouses, not automatically covered for the SBP. The former spouse must notify the agency and apply for the

change in class of beneficiary.

**CONCLUSION**

USFSPA encompasses a variety of benefits for qualifying former spouses. Commanders should discuss any issues or ques-

tions with the SJA and refer members, spouses or former spouses to the legal office for appropriate guidance.

_**KWIK-NOTE: This subject interests your personnel from their perspectives both as military members and former spouses.**_

**RELATED TOPICS:**

**SECTION**

Access to Military Records

14-4

Benefits

4-2

TRICARE and DEERS

4-3

Disability of National Guard Members

4-4

Foreign Divorce Decrees

23-13

Garnishment

23-15

Continued Health Care Benefit Program

4-5

ID Card Retrieval

24-9

Legal Assistance Program

17-8

Subpoenas and Consensual Release of Records

14-6

Veterans Benefits

4-8

_**Air National Guard Commander's Legal Deskbook**_

815

_**Chapter 23, People Problems**_

_**Section 23-15 Garnishment**_

_**Page 1**_

**Garnishment**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** 42 U.S.C. 659, implemented by 5 C.F.R. Part 581; 15 U.S.C. 1673(b), _Consumer Credit Act_ ; 50 U.S.C.

App.501-596, _Servicemembers Civil Relief Act_ ; AFI 36-2906, _Personal Financial Responsibility_ (1 Jan 98); applicable state law.

**WHAT IS GARNISHMENT?**

**** Garnishment is the involuntary taking of a person's income to satisfy past-due obligations of that person to another person as directed by the order of a court. Federal statute allows for garnishment of military pay; federal regulations lay out the requirements for the process. 5 C.F.R. 581. Priority in garnishments is given to garnishments for domestic support

obligations. 42 U.S.C 659. Limits exist to the percentage of a member's pay that can be garnished. 15 U.S.C. 1673(b).

**WHAT ARE THE PROCEDURES?**

AFI 36-2906 sets forth the procedures for both garnishment and involuntary allotments processed through DFAS, includ-

ing statutory allotments for child and spousal support, and involuntary allotments for civil debts for active duty, Reserve, Air National Guard, and retired members. Attachments 2 and 3 of the regulation are detailed fact sheets regarding garnishment for child support and alimony and involuntary allotments for civil debts.

In any cases involving attempts to garnish a military member's pay, the Servicemember's Civil Relief Act must be consid-

ered. While the Act is covered in more detail in another Chapter, this Act contains protective provisions for military

members, some of which deal directly with court actions and attempts to pursue and collect debts. Whenever a question

arises about a garnishment action, you should consult your Staff Judge Advocate (SJA) to ensure the member's rights are

preserved.

_**KWIK-NOTE: Commanders should ensure their unit members are familiar with garnishment and how it can affect them.**_

**RELATED TOPICS:**

**SECTION**

Access to Military Records

14-4

AGR Program

11-4

Bankruptcy Notice

23-4

Benefits

4-2

Domestic Violence, Maltreatment and Neglect

23-5

Civilian Warrants and Process – Service on Base

3-8

Debt Collections

23-9

Dependent Care Responsibilities

1-10

Dependent Support

23-10

Disability of National Guard Members

4-4

Domicile

23-11

Ethics

7-3

Financial Responsibility

23-12

Foreign Divorce Decrees

23-13

Former Spouses' Protection Act

23-14

Freedom of Information Act

14-11

Legal Assistance Program

17-8

Mobilization of the ANG (Federal and State)

20-2

Paternity Claims

23-18

Privacy Act

14-12

Soldiers' and Sailors' Civil Relief Act (Federal and State)

20-5

_**Air National Guard Commander's Legal Deskbook**_

816

_**Chapter 23, People Problems**_

_**Section 23-16 Jury Duty**_

_**Page 1**_

**Jury Duty**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** Applicable state law; 5 U.S.C. 6322; 10 U.S.C. 982 (active duty); DoDD 5525.8, _Service by Members of the_ _Armed Forces on State and Local Juries_ (13 Jun 88) (active duty); AFI 51-301, _Civil Litigation_ (AFGM1.2, 2 Jan 13)(active duty); Decision of the Comptroller General, B-217845 (18 Sep 85). 

## INTRODUCTION

**** Sometimes, ANG members are assigned jury duty by a state or federal court. Air Force and ANG policy on jury duty al-

lows members to fulfill their civic duty. Commanders should encourage and support their members' jury service. Air

Force active duty members and Title 10 ANG members' obligations to serve on a state or local jury are governed by fed-

eral law and regulation (10 U.S.C. 982 and AFI 51-301, paras 9.21 - 9.24). Jury service obligations of non-Title 10 ANG

personnel are governed by state law. This topic discusses the disqualifications and exemptions from jury service of ANG

members depending on their status. The rules for regular Air Force and Title 10 ANG members will also be set forth as a

contrast to the rules for non-Title 10 ANG members, _i.e.,_ ANG members in State active duty status or Title 32 status.

**ANG MEMBERS - GENERALLY**

**Disqualification vs. Exemption**

Jury duty concerns two questions which are asked by most members of society: "Am I eligible to serve?" and "Is there a

reason I cannot serve?" The first question concerns "disqualification" from jury service, and the second concerns "exemp-

tion" from jury service. Many state laws concerning jury duty define and distinguish between the two terms. Disqualifica-

tion is usually based on automatic grounds, while exemption is usually based on a reason claimed by the prospective ju-

ror. If you are disqualified, you cannot serve as a juror even if you want to; if you are exempt, the choice of serving or not is yours since you must claim the exemption from service.

Many state laws categorically disqualify "members in the active service in the armed forces of the United States" from

jury service. However, many states define "active military service of the United States" or "active service in the armed

forces of the United States" or similar terms, as full-time duty in the Army, Navy (including Marine Corps), Air Force or

Coast Guard of the United States. That does not include the Air National Guard unless the member has been mobilized

or is otherwise serving under Title 10.

**Temporary Excuses**

Although ANG members may not be disqualified or exempted from jury service by virtue of their ANG status, how do

you resolve conflicts between jury duty and upcoming training duties, deployments or school dates? Common sense, in

light of ANG policy encouraging jury service, should guide the commander. If jury service will conflict with a regularly

scheduled UTA, the commander should let the member serve and make up the drill (SUTA, RUTA, EQT, etc.). If it will

conflict with a period of annual training away from home station, a deployment, or a school tour, the commander should

assist the member in being temporarily excused from jury service based on reasoning similar to that supporting an active

duty member's request for an exemption listed below. Commanders may write letters requesting a temporary excuse

from jury service for affected Guard members, but should do so only where there is no reasonable alternative to resched-

uling the training. Consult with your Staff Judge Advocate (SJA) before sending such a letter to a court.

For sake of consistency, subordinate commanders and supervisors should be instructed that any request for military ex-

emption from jury service must be in writing and will be determined by the Group or Wing commander. The subordinate

commander or supervisor should include their recommendation about the request to include a discussion of any reason-

able alternatives to the scheduled training. If a letter is written to the court, it should only be for a temporary excusal for

_**Air National Guard Commander's Legal Deskbook**_

817

_**Chapter 23, People Problems**_

_**Section 23-16 Jury Duty**_

_**Page 2**_

that particular jury service. If the member's request for excusal is denied by the court, and there is no basis for the mem-

ber's disqualification or exemption from jury service under state law, the member must perform jury service and make

up the training later. However, a request by a commander will be granted in most, if not all cases, if it is appropriately

worded and supported.

**AGRs**

Under most state laws, AGRs are usually not disqualified or exempt from serving as a juror because of their AGR status.

When serving in Title 32 or State active duty status, AGRs are not in the Air Force of the United States and are under

state control.

AGRs with no military basis to be temporarily excused from jury service, must be given leave to perform jury service

with no reduction in pay or benefits. Under the DoD Directive, any pay the AGR receives from the jury authority for jury

service is payable to the U.S. Treasury through the Military Pay section; but AGRs may keep any reimbursement for ex-

penses incurred while performing jury service such as transportation costs or parking fees.

If the jury authority does not separate out a jury service payment from expenses reimbursement, the member should

turn in the check from the jury authority to the Military Pay section with a request for reimbursement for expenses.

**TRADITIONAL GUARD MEMBERS**

Most states neither disqualify nor exempt traditional Guard members by virtue of their membership status. Traditional

Guard members called to serve on juries and without a military basis for temporary excusal must be given leave from

scheduled training which conflicts with the jury service with no reduction in Guard pay or benefits.

**TECHNICIANS**

In their status as either federal civilian employees or members of the Guard, technicians under most state laws are nei-

ther disqualified nor exempt from jury service. Under Comptroller General Decisions, 5 U.S.C. 6322 entitles federal em-

ployees to "court leave" - leave without reduction in pay or benefits - for the period of absence during which they serve

as jurors, even if they could have requested and received an excuse or exemption from jury service. This is because 5

U.S.C. 6322 encourages participation in the judicial process, including jury service. However, under DoD Directive, any

pay the technician receives from the jury authority for jury service is payable to the U.S. Treasury through the Military

Pay Section. Technicians, like AGRs, are entitled to any reimbursement from the jury authority for expenses incurred to

perform jury duty, such as transportation costs or parking fees. Again, if the jury authority doesn't separate out the mo-

nies, the same procedure for turning in the check would apply as with AGRs.

**TITLE 10 MEMBERS**

**Rules Regarding Exemption from Jury Duty**

DoD Directive 5525.8, Service by Members of the Armed Forces on State and Local Juries, categorically exempts General

Officers, commanders, operating forces personnel in training, and personnel stationed outside the United States.

Under 10 U.S.C. 982, Air Force members are exempt from jury duty when such duty unreasonably interferes with their

military duties or adversely affects the readiness of a unit, command, or activity. The Secretary of the Air Force has dele-

gated the authority to determine such exemptions to commanders. It reiterates the exemptions set out in DoDD 5525.8

and for other Title 10 members, states they may be exempted from performing state and local jury duty if the com-

mander exercising special court-martial jurisdiction (usually the Mission Support commander) decides such jury duty

would:

_**Air National Guard Commander's Legal Deskbook**_

818

_**Chapter 23, People Problems**_

_**Section 23-16 Jury Duty**_

_**Page 3**_

1. Interfere unreasonably with performing the member's military duties; or

2. Adversely affect the readiness of the unit, command, or activity to which the member is assigned. The decision of the

special court-martial convening authority acting as the designee of the Secretary of the Air Force is final.

**Procedures Regarding Jury Duty**

If you are a Title 10 member on active duty and are summoned to perform state or local jury duty, immediately inform

your immediate commander. If you are exempt under DoDD 5525.8 above, your immediate commander or a designee

will give written notice of the exemption to the state or local official who issued the summons for jury service.

If you are not exempt under DoDD 5525.8, your immediate commander initially determines whether you are exempt un-

der the rules above.

If your immediate commander believes you are not exempt, you must comply with the jury duty summons. If your com-

mander thinks you meet the requirements, then that commander will obtain a final decision on exemption from the spe-

cial court-martial convening authority (SPCM).

If the SPCM decides that exemption is not appropriate, you must comply with the jury duty summons. If the SPCM finds

exemption is appropriate, your immediate commander or a designee will give written notice of the exemption to the

state or local official who issued the summons.

The written notice of exemption will include: "(Grade and Name), a member of the United States Air Force on active

duty, has been summoned to perform jury duty (when, where, and on what jury). Under 10 U.S.C. 982, DoDD 5525.8,

and Air Force Instruction 51-301, this member has been determined by the Secretary of the Air Force or an authorized

designee as exempt from duty on the jury in question because such jury service would unreasonably interfere with the

performance of the member's military duties or would adversely affect the readiness of the unit, command, or activity to

which the member is assigned. Under 10 U.S.C. 982(b), this determination is conclusive."

If you serve on a state or local jury you cannot be charged leave or lose any pay or entitlements during the period of serv-

ice. All fees accrued to members for jury service are payable to the U.S. Treasury. You are entitled to any reimbursement

from the state or local jury authority for expenses incurred to perform jury duty, such as transportation costs or parking

fees.

_**KWIK-NOTE: Before communicating with a civilian court official, commanders should consult with their Staff Judge Advo-**_

_**cate. This subject should be part of a briefing for subordinate commanders and supervisors.**_ **__******

**RELATED TOPICS:**

**SECTION**

Active Duty - Air National Guard Members

11-2

AGR Program

11-4

Domicile

23-11

Preventive Law Program

17-15

_**Air National Guard Commander's Legal Deskbook**_

819

_**Chapter 23, People Problems**_

_**Section 23-17 Living Wills**_

_**Page 1**_

**Living Will and Medical Power of Attorney**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** 10 U.S.C. 1044c; DoDD 1350.4, _Legal Assistance Matters_ (28 April 01, C1, 13 Jun 01); AFPD 51-5, _Military_ _Legal Affairs_ (27 Sep 93); AFI 51-504, _Legal Assistance, Notary, and Preventive Law Programs_ (27 Oct 03, AFGM1, 24 Jan 13); applicable state law. 

## INTRODUCTION

**** With the rising costs of medical care and increasing emphasis on quality of life, especially after headline cases like Karen Ann Quinlan, Nancy Cruzan, and Terri Schiavo (cases involving a persistent vegetative condition), the public's awareness

of planning for terminal illness or post-accident trauma is high. Sometimes people who are terminally ill do not wish to

be kept alive by artificial means if there is no reasonable chance of recovery. Sometimes people want another person to

have control over their medical care if they cannot decide matters for themselves. Because of this awareness, many states

have laws to recognize the legal, medical and moral validity of the patient's wishes. Most states permit advance direc-

tives, usually known as Living Wills and Medical Powers of Attorney, or also known as Advance Medical Directives.

While a Living Will may sometimes be confused with a Last Will and Testament (Will), a Living Will distinctly differs

from a Will. A Will is executed before death and takes effect after death. A Will names one or more persons to manage

his estate and provides for the transfer of property at death. A Living Will, on the other hand, is executed before death

and is a set of written instructions that specify what actions should be taken for their health if they are no longer able to make such decisions due to illness or incapacity.

**DEFINITIONS**

A Living Will is a legal document signed by an individual who is lucid and can communicate. The document provides for

a course of action to be followed regarding medical treatment if a physical or mental disability or terminal illness allows

no reasonable chance of recovery. Commonly, it states life sustaining assistance or extraordinary measures should not be

used to prolong life if the patient has a terminal illness or persistent vegetative state. A Living Will gives people some

ability to control what medical treatment they will receive when they can no longer speak for themselves (e.g., use of

feeding tubes). The Living Will informs an individual's physicians, family, clergymen, lawyer, medical facility, or other

persons who may be responsible for their health, welfare, or affairs, whether or not they wish to be kept alive by artificial means or just be kept pain-free and comfortable in such a "terminal illness" situation.

A Medical Power of Attorney is a document that allows an individual to appoint a trusted person to make medical deci-

sions if the patient is incompetent or cannot communicate the patient's own decisions or desires. A Medical Power of

Attorney is used where a reasonable chance of recovery exists.

**WHO PREPARES THE ADVANCE MEDICAL DIRECTIVE?**

Your legal office attorneys may prepare Advance Medical Directives for any person eligible for legal assistance. A member

may have their Living Will or Medical Power of Attorney prepared without charge. A member may also obtain such docu-

ments from a civilian attorney, who ordinarily will charge a fee for the preparation and advice.

**DL WILLS**

The SJA has access to the Air Force software program "DL WILLS" which can create Advance Medical Directives, includ-

ing a Living Will and a Medical Power of Attorney. This software is routinely updated to encompass changes in law in dif-

ferent states and is tailored to the requirements of each state. Further, the program also provides Living Wills with the

required 1044c U.S.C. preamble language ( _see_ AFI 51-504, para. 1.4.2.1 and DoDD 1350.4, para. 4.4).

_**Air National Guard Commander's Legal Deskbook**_

820

_**Chapter 23, People Problems**_

_**Section 23-17 Living Wills**_

_**Page 2**_

**PART OF MILITARY MEDICAL FILE?**

There is no legal prohibition against placing a copy of a Living Will and Medical Power of Attorney in an Air Force or

ANG health record. Because of mobilization, deployments and other training away from home station during which mem-

bers could become terminally ill, commanders should set a policy after consulting with their Medical Group commander

and SJA either encouraging, or merely permitting, the placing of these documents in a member's military health record.

**Practical Tip:** While there is no legal or military requirement that military personnel execute a Living Will, if a member prepares one, they may wish to make and sign two originals: one for the member's personal use away from the military

and the other to include in the member's military health record. However, if the member wishes to revoke the Living

Will, the member must remember to revoke both documents. A photocopy of a Living Will not bearing original signa-

tures may not be valid under state law. The Living Will placed in a member's military medical file need not have been pre-

pared by a military attorney. Only a copy of a Medical Power of Attorney would be in the member's military health re-

cord, as the original must be kept by the person who will exercise the power of attorney on the member's behalf.

**LEGAL EFFECT**

A Living Will may be called a Health Care Proxy, Healthcare Declaration, Durable Power of Attorney for Healthcare, Ad-

vance Directive, Directive to Physicians, Living Will, or other title designated by each state's laws. The legal effect of Living Wills varies with the specific language in the document signed and the applicable state law.

Depending on the legal effect given to a Living Will in a state, military physicians may consider and be guided by the ex-

press wishes of a patient, the best medical practices, applicable laws, and the rights and desires of next of kin. Consideration as to the desires of the patient should be given whenever possible when consistent with good medical practice and

the law. A physician's failure to comply with the Living Will in some states may constitute unprofessional conduct. The

same may be true of a Medical Power of Attorney if a physician refuses to follow the direction of the attorney-in-fact with-

out good medical cause shown. ****

_**KKWIK-NOTE: Because the laws governing Living Wills and Medical Powers of Attorney vary from state to state, be sure**_

_**individuals visit the legal office to obtain a form valid under the laws of the state of their domicile and/or where they reside.**_

**RELATED TOPICS:**

**SECTION**

Domicile

23-11

Legal Assistance Program

17-8

Newcomer's Briefing

1-22

Personal Affairs Checklist

20-3

Powers of Attorney

23-19

Preventive Law Program

17-15

Pre-mobilization Legal Counseling

20-4

Wills and Trusts

23-20

_**Air National Guard Commander's Legal Deskbook**_

821

_**Chapter 23, People Problems**_

_**Section 23-18 Paternity Claims**_

_**Page 1**_

**Paternity Claims**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** Applicable state law, AFI 36-2908, _Family Care Plans_ (1 Oct 00, C2, 1 Nov 11); AFI 36-2906, _Personal Financial Responsibility_ (1 Jan 98).

**COMMANDER'S ACTION UPON LEARNING OF A PATERNITY CLAIM**

**No Authority to Decide It**

Should a member or a third party voice a complaint concerning paternity involving a member of a unit, a commander

must remember he or she has no authority to decide such a claim. Paternity – and the responsibilities that go with it – is

a matter for the civilian courts. Any member of a unit may be referred to the unit's Staff Judge Advocate (SJA) for legal

assistance. However, the SJA cannot represent anyone in, or prepare any documents for filing in a civilian court.

**Seek SJA Advice**

When a commander learns of a paternity claim or matter that could cause an issue with a member's ability to fulfill mis-

sion requirements, the commander should contact the SJA for advice. This is especially true when there is a paternity

claim from a third party. The member should be advised about a paternity issue brought to the command's attention.

**Advise Affected Member of Support Duties and Benefits**

If a member admits paternity or a civilian court has adjudicated a member as a parent, the member should be advised of

his obligation to provide adequate support to the dependent (if the member is found by a civilian court to be liable for

child support), and of the benefits which may be available to the dependent based on the member's military service. The

member should be directed to the unit FSS for further information and to the legal office for advice on the member's le-

gal rights and obligations to the child. Members should further be advised of their responsibilities under AFI 36-2908 for

dependent care.

**Refer Matter to Civilian Authorities or Take Military Action?**

Questions concerning paternity may raise other legal issues to include adultery/extramarital activity, lawful age of con-

sent issues, custody and child support. A commander should discuss with the SJA the appropriate approach to take for

each situation. A situation could call for referral to civilian law enforcement officials or child protective agencies. Also, the information may establish adverse administrative action or disciplinary action under the state Code of Military Justice. Before speaking to a member about a paternity issue, a commander should consult with the SJA, especially if any

information could be used for civil or military adverse action.

_**KWIK-NOTE: Commanders should respond to paternity complaints only after consulting with their SJA.**_

_****_

**RELATED TOPICS:**

**SECTION**

Advising Suspects of Their Rights

8-9

Commander's One-On-One Meeting With Member - Precautions

16-5

Confessions

8-10

Dependent Care Responsibilities

1-10

Dependent Support

23-10

Financial Responsibility

23-12

Fraternization and Professional Relationships

7-4

Investigation by Commander of Suspected Minor Offenses

16-10

_**Air National Guard Commander's Legal Deskbook**_

822

_**Chapter 23, People Problems**_

_**Section 23-19 Powers of Attorney**_

_**Page 1**_

**Powers of Attorney**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** 10 U.S.C. 1044b; DoDD 1350.4, _Legal Assistance Matters_ (28 Apr 01, C1, 13 Jun 01); AFPD 51-5, _Military_ _Legal Affairs_ (27 Sep 93); AFI 51-504, _Legal Assistance, Notary, and Preventive Law Programs_ (27 Oct 03, AFGM1, 24 Jan 13); applicable state law. 

## INTRODUCTION

Due to the potential for deployment, military members should consider obtaining a power of attorney to provide for the

care and protection of their property during their absence. Further, to avoid the cost and stress of a legal guardianship

proceeding if incapacity occurs, members should prepare a power of attorney to provide for the maintenance of their

property and/or to express their health care decisions and instructions.

**DEFINITION**

A power of attorney is a legal document by which a person (who is called the principal, donor or grantor) gives someone

else (who is called the attorney-in-fact or agent) the authority to act as the first person's agent or attorney. The attorney-in-fact can then conduct business for the grantor in the grantor's absence and/or incapacity. The transactions of the

attorney-in-fact are binding upon the grantor as though the grantor had personally conducted the transaction.

**TYPES AND USES**

To be effective, powers of attorney must be in writing, signed by the grantor, and notarized or witnessed. The original

power of attorney document must physically be given to the attorney-in-fact to use because they must be able to present

the original document to exercise the power. Powers of attorney are revocable in one of three ways: (1) by a writing

signed by the grantor and notarized which states the power of attorney is revoked; (2) by physically destroying the origi-

nal power of attorney; (3) by automatic termination upon the death of the grantor. Powers of attorney have no effect af-

ter the death of the grantor. There are several types of powers of attorney dependent on their use:

A _**general power of attorney**_ gives the attorney-in-fact the right to conduct practically any type of transaction the grantor could do personally, including selling property or obtaining and using credit. Unit legal offices often use the AF Form

165 (General Power of Attorney) for this purpose. However, when using this form, Air Force practice limits the effective

period of this document (usually to one year duration). Even though a general power of attorney covers many transac-

tions, often it won't be accepted in a real estate transaction.

A _**special or limited power of attorney**_ gives the attorney-in-fact the right to act on the grantor's behalf for a specific transaction, such as shipping household goods, selling a home, or leasing a house. Unit legal offices often use the AF Form

831 (Special Power of Attorney) for this purpose. The effectiveness of this document may also be limited to a specific

time frame, generally not over one year.

_**Durable power of attorney**_ for property and finances have gained popularity in recent years and many states have passed legislation authorizing this specific type of power of attorney. The basic concept is that an individual can appoint someone to act as attorney-in-fact over his or her property and finances that will be effective through the disability or incapacity of the principal. A springing durable power of attorney "springs" into effect upon the disability or incapacity of the

maker. Durable powers of attorney may also, depending on state law, become effective immediately and remain in effect

even if the grantor of the power of attorney subsequently becomes disabled or incapacitated. Since this type of power of

attorney is state law dependent, the Staff Judge Advocate (SJA) will usually be the best source on whether it is author-

ized in your state.

_**Air National Guard Commander's Legal Deskbook**_

823

_**Chapter 23, People Problems**_

_**Section 23-19 Powers of Attorney**_

_**Page 2**_

_**Medical power of attorney** _ have also become popular and most states have statutes concerning this type of power of attorney. This topic is discussed separately in this _Deskbook_ with the Living Will. However, for sake of inclusion, this document allows an individual to appoint an agent or surrogate to make health care decisions for the principal if they become

incapacitated. This is differentiated from the durable power of attorney which does not address medical care. Again, state

law governs whether this type of power of attorney has been authorized in your state. A Medical Power of Attorney and a

Living Will are often referred to as Advance Medical Directives.

**POLICY ON USE (SIGN NOW, USE LATER)**

There is no legal or military requirement that military personnel execute a power of attorney. However, if one is needed,

signing it will help relieve the deployed or mobilized member from any emotional burden attached to the inability to

tend to affairs at home which could impede performing military duties.

Rather than wait to grant a power of attorney after a member is mobilized or prepare one on the eve of a deployment,

some commanders, in consultation with their SJA, encourage their members to sign powers of attorney now, using lan-

guage stating the power of attorney only takes effect only upon the member's mobilization or deployment, expires at the

conclusion of the mobilization or deployment, and mobilization or deployment orders must be attached to the power of

attorney for it to be effective. An alternative approach is for members to have a completed power of attorney, except for

signature and notarization, in a mobility folder, which could be executed upon mobilization.

Members on mobility should be given a form for their mobility folder that states whether they have or have not signed or

waived a power of attorney and a Will. In this way, you will know the member has been advised of these documents.

Personnel are usually informed about powers of attorney and the uses and consequences of granting one to someone

through the base Preventive Law Program and Legal Assistance Program. No power of attorney forms should be distrib-

uted in blank. Members should sign a power of attorney only after consulting with an attorney. It is also important to un-

derstand some members may need more than one power of attorney depending on whether they have particular transac-

tions they expect to be completed while they are unavailable.

**WHICH FORMS SHOULD BE USED?**

Military powers of attorney must be accepted by entities involved in transactions being done by an attorney-in-fact. 10

U.S.C 1044b. However, many units have found the Air Force General and Special Power of Attorney forms, while contain-

ing good samples of clauses to consider, may not be accepted by local banks or other entities in their state because they

are unfamiliar with the military forms or because the Air Force forms do not contain language required by a particular

state. Therefore, your SJA may opt to use a statutory power of attorney, crafted to comply with state law requirements,

and revised to include clauses from the Air Force DL Wills software program. DL Wills also provides health care and du-

rable (financial) powers of attorney consistent with AFI 51-504 and which include the required 1044 U.S.C. preambles.

_**Practical Tip**_ : Some SJAs use civilian power of attorney forms obtained from the State Bar Association or local business entities. Some states have a designated government office that provides statutory prescribed forms for no cost. Since

members come from, or have business interests outside the state where the unit is located, they may need powers of at-

torney from other states. A local title company affiliated with a national title company or similar financial institution (for finances and property) and hospital (for health care) are excellent sources to obtain at least one power of attorney form

used in each state.

**CONCLUSION**

Powers of attorney are one of the most often required items for a deploying member. This topic has been written in a

briefing format and may need to be supplemented by applicable state law. It should be part of the unit's programs listed

in the Related Topics below.

_**Air National Guard Commander's Legal Deskbook**_

824

_**Chapter 23, People Problems**_

_**Section 23-19 Powers of Attorney**_

_**Page 3**_

_**KWIK-NOTE: Powers of attorney are available through the base Legal Assistance Program to eligible personnel. Powers of**_

_**attorney may be signed now but should be stated to take effect upon mobilization and/or incapacity and should only be**_

_**signed after consultation with the Staff Judge Advocate.**_

_****_

**RELATED TOPICS:**

**SECTION**

Legal Assistance Program

17-8

Living Will and Medical Power of Attorney

23-17

Newcomer's Briefing

1-22

Personal Affairs Checklist

20-3

Pre-mobilization Legal Counseling

24-7

Preventive Law Program

17-15

Wills and Trusts

23-20

_**Air National Guard Commander's Legal Deskbook**_

825

_**Chapter 23, People Problems**_

_**Section 23-20 Wills and Trusts**_

_**Page 1**_

**Wills & Trusts **

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** 10 U.S.C. 1044; DoDD 1350.4, _Legal Assistance Matters_ (28 Apr 01, C1, 13 Jun 01); AFPD 51-5, _Military_ _Legal Affairs_ (27 Sep 93); AFI 51-504, _Legal Assistance, Notary, and Preventive Law Programs_ (27 Oct 03, AFGM1, 24 Jan 13); applicable state law. 

## INTRODUCTION

Estate planning addresses important matters in advance of a major life contingency ( _i.e.,_ incapacity or death). Military members must properly prepare for these events. Estate planning involves discussion with an attorney and preparation

of various documents including wills, revocable living trusts, powers of attorney and advance medical directives (powers

of attorney and advance medical directives are discussed in separate _Deskbook_ articles).

**WHAT IS A WILL?**

A Last Will and Testament, commonly known as a will, is a person's official, written declaration that addresses some key

issues of death. A will appoints the person who will administer the estate. It names the person(s) or organization(s) to

inherit the decedent's property and to what extent. A will can designate a guardian for adopted or biological minor chil-

dren of the decedent (assuming no one else has legal custody of the children). The will maker is often called the "Testa-

tor" (male) and "Testatrix" (female).

**WHAT PROPERTY DOES A WILL GOVERN?**

A will is the blueprint for a probate process. Normally, only property ( _e.g._ , real, personal, cash, intangible) or the portion of property owned solely by the individual is subject to probate. Certain types of property do not pass through a probate

process. Property held in "joint tenancy with right of survivorship" or other related forms of joint ownership will usually

not be subject to probate, but would normally pass outside probate to the surviving joint tenant(s). Likewise, distribu-

tion of property may be controlled by contract language, as in the case of insurance policies and retirement accounts. In-

surance proceeds and retirement accounts are paid based on the beneficiary designation of the asset. If the beneficiary

were a spouse or family member, the proceeds would normally be paid without the necessity of a probate process.

If insurance proceeds or retirement accounts are payable to the estate of the decedent, a probate process would normally

be necessary to distribute the proceeds. In many husband/wife situations, property is held in joint tenancy and

insurance/retirement proceeds are payable to a surviving spouse; upon the death of the husband or wife, all property

would pass to the surviving spouse and no probate is usually necessary. Upon the death of the surviving spouse, how-

ever, a probate may be necessary depending on how the assets are held. ANG members must understand that provisions

of a will do not override a joint tenancy or contractual distribution of assets. The manner in which property is held af-

fects how it is distributed, and ANG personnel must know the differences. A member may have children from a prior mar-

riage but have the current spouse designated as the beneficiary of SGLI insurance. If the member executes a will designat-

ing the children to receive the SGLI proceeds, the children may receive nothing, since the beneficiary designation would

normally prevail over the will. Another more comprehensive means of avoiding probate is the " _inter vivos_ " or "revocable living trust" which is discussed below. Distributing one's assets upon death should be explored with legal counsel and

appropriate documents executed to give effect to the member's intent.

**WHY SHOULD YOU HAVE A WILL?**

With few exceptions, every person should have a current will that includes provisions for the support and maintenance

of any minor children, the disposition of the decedent's property, and the appointment of an administrator for the estate.

Failure to maintain a current will results in a court making these decisions for an individual under state law.

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_**Chapter 23, People Problems**_

_**Section 23-20 Wills and Trusts**_

_**Page 2**_

Without a will, the court would not have a member's preference or guidance about placement of minor children affected

by a death. If a member has the care, custody, and control of a minor child, they should make proper provisions for the

child's continued care. The member knows best who would be the appropriate guardian of the child's person and prop-

erty. By providing a designated guardian in a will for the affected minor children, the court normally will follow the dece-

dent's documented wishes.

Even if minor children are not affected, a will is still appropriate to control with greater certainty who will ultimately receive property. All states have "in testate" laws that prescribe who will receive a decedent's property where there is no

will. It is a widely held misconception that, without a will, all of a person's property would go to a surviving spouse or

only to the decedent's children if there were no surviving spouse. Many states have specific percentages of inheritance

that complicate inheritance by a spouse or children. A will eliminates concern that in testate laws would have the prop-

erty distributed against the wishes of the will maker.

**ADMINISTRATION OF THE PROBATE ESTATE**

The person or institution appointed in a will or by the probate court to administer the decedent's probate estate is called

an "Executor" (male), "Executrix" (female), "Personal Representative" or "Administrator." The individual must ensure

all debts are paid and property is properly distributed to beneficiaries or heirs. The will maker should choose someone

who can be trusted to honor their wishes and has good business judgment.

**COMMANDER'S RESPONSIBILITIES**

Commanders should encourage every member of their unit to see the Staff Judge Advocate (SJA) or a private attorney to

have a will prepared. Every member should be informed of reasons for executing a will, usually as part of the unit's Pre-

ventive Law and Legal Assistance Program.

**WHO PREPARES THE WILL?**

Your SJA and attorneys in the legal office may prepare a will for any person eligible for legal assistance. Most legal offices will not prepare complicated wills or trusts, or wills in cases of large estates. ( _See_ the _Deskbook_ topic entitled " _Liability of_ _National Guard Legal Office Personnel_ " for the basis of this authority). AGRs can have wills prepared at any active duty base legal assistance office, regardless of service component.

Members may have their simple wills prepared by an attorney in the unit legal office without charge. Alternatively, a

member may obtain a will prepared by a civilian attorney who ordinarily will charge a fee depending upon the complexity

of the member's estate planning needs. Commercially available "do-it-yourself" will kits are rarely suitable for the needs

of a unit member.

**DL WILLS**

DL Wills is a standardized Air Force software program used by JAGs to create wills. This software is routinely updated to

encompass changes in law in various states and is tailored to the requirements of each state.

AFI 51-504, para. 1.4.1.2 mandates every will shall be prepared and executed as a military testamentary instrument. DL

WILLS provides language that meets the military testamentary instrument criteria. In accord with 10 U.S.C. 1044d and

DoDD 1350.4, a military testamentary instrument shall: 1) be executed by the testator/testatrix; 2) be executed in the

presence of a military legal assistance counsel as presiding attorney; 3) be executed in the presence of at least two disin-

terested witnesses; 4) include a military testamentary instrument "preamble" under 1044d; and 5) include a self-proving

affidavit. As a matter of good practice, an ANG JAG will use this program in preparing a will.

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_**Chapter 23, People Problems**_

_**Section 23-20 Wills and Trusts**_

_**Page 3**_

**CHANGES TO A WILL**

A will should be reviewed periodically, but certainly upon the birth or death of any person affected by the will, or upon a

substantial change in the decedent's estate. Wills can be changed in two ways: by a written document called a "Codicil,"

or by executing a new will. A will signed after an earlier will revokes the earlier will as a matter of law. A will can be revoked any time before death.

**WILLS AND MOBILIZATION**

Having a will ensures members are prepared for a deployment or mobilization and can perform their duties without un-

necessary distraction.

_**Practical Tip for Inspections**_ : Members on mobility should be given a form for their mobility folder which states they have either executed a will, or declined to have one prepared, so there is a record the member has been advised about obtaining legal advice regarding a will.

**DEFINITION: WHAT IS A TRUST?**

A trust is an arrangement reflected in a legal document whereby a "Trustee" is appointed to manage assets (" _corpus_ ") for the benefit of one or more "beneficiaries." The person who creates the trust is a "grantor" or "settlor." There are different types of trusts that serve many purposes.

An " _ **inter vivos**_ " or " _ **living trust**_ " is a trust established by an agreement to be effective during the creator's lifetime. If the trust can be amended or terminated by the creator, it is a "revocable living trust." The primary purpose for such a trust is to avoid the probate process upon the creator's death and sometimes upon the death of the creator's spouse or other family members, as distribution of assets will be made as a condition of the trust and not through a will.

An " _ **irrevocable living trust**_ " cannot be changed or revoked by the creator. It is often used to remove assets from the creator's estate to reduce federal estate tax, or for the divestment of assets to enable the creator to qualify for long-term

health care public assistance.

A " _ **testamentary trust**_ " is a trust created by a will. A "minor's trust" is commonly used to ensure beneficiaries or their legal guardians do not misuse or waste trust assets. The trustee manages the assets until the beneficiary reaches an age

specified by the decedent. A "credit shelter trust" may provide tax planning for married couples. ****

**SHOULD YOU CREATE A TRUST?**

A trust should only be used after consultation with a JAG. A JAG should discuss the importance of a testamentary trust

when passing assets to a minor beneficiary ( _see_ , AFI 51-504, para. 1.4.1.1.). A JAG should not prepare complex tax planning or _inter vivos_ trusts unless the SJA determines that attorney possesses the expertise to prepare these documents.

_**KWIK-NOTE: Emphasize the need to seek legal counsel about a will to avoid last-minute will preparation if deployed.**_

_****_

**RELATED TOPICS:**

**SECTION**

Counseling

24-7

Living Will and Medical Power of Attorney

23-17

Legal Assistance Program

17-8

Liability of National Guard Legal Office Personnel

18-7

Newcomer's Briefing

1-22

Personal Affairs Checklist

20-3

Powers of Attorney

23-19

_**Air National Guard Commander's Legal Deskbook**_

828

_**Chapter 23, People Problems**_

_**Section 23-21 Worldwide Locator Service for Military Personnel**_

_**Page 1**_

**Worldwide Locator Service for Military Personnel**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** As listed below.

**INFORMATION REQUIRED**

Each of the armed services has a worldwide locator service. The service is free to immediate family members and govern-

ment officials. Other family members, friends, or civilians must pay $3.50 for any information. Requests should be in

writing and should provide, to the extent known, the service member's:

1. Full name;

2. Social security number;

3. Date of birth;

4. Rank;

5. Location (last known); and

6. Time frame of last known duty assignment.

**BRANCH OF SERVICE ADDRESSES AND TELEPHONE NUMBERS**

Addresses and telephone numbers of the locator service are:

1. United States Army

Due to security reasons, the United States Army no longer provides this service to the general public. Other requests to

locate personnel are handled on a case-by-case basis. A written inquiry can be sent to: Commander, U.S. Army Enlisted

Records & Evaluation Center, ATTN: Locator, 8899 East 56th Street, Fort Benjamin Harrison, IN 46249- 5301; (866)

771-6357.

2. United States Air Force

HQ AFMP/RMIQL, 550 C Street West, Suite 50, Randolph AFB, Texas 78150-4752; (210) 565-2660.

3. United States Navy

World Wide Locator, Bureau of Naval Personnel PERS 312F, 5720 Integrity Drive, Millington, TN 38055-3120.

4. United States Marine Corps

Commandant of the Marine Corps, Headquarters, USMC, Code MMSB-10, Quantico VA 22134-5030.

5. United States Coast Guard

Coast Guard Personnel Command (CGPC-adm-3), 2100 2nd St. SW, Washington, D.C. 20593-0001; (202) 267-0581.

**PRACTICAL TIPS**

Before mailing in a location request, call the appropriate military branch to learn whether any specific procedures or fees

are required. The telephone lines stay busy and it is rare that a caller can get through on the first call. It can take up to six months for a recently PCS'd service member's new unit of assignment to be available through the locator service.

If the service member has moved from an address within 18 months of your inquiry, you can also try the member's local

Post Office. You can either use a Freedom of Information Act form as provided by PSM 262.73, or write a letter to the

Postmaster of that local Post Office (Postmaster, City, State, Zip Code) requesting a forwarding address for the member.

In both cases, you must provide a small fee.

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_**Chapter 23, People Problems**_

_**Section 23-21 Worldwide Locator Service for Military Personnel**_

_**Page 2**_

NOTE: If you have a copy of the service member's Leave and Earning Statement (LES), the military unit ID code of the

individual and the state the service member claims as legal residence are on the LES.

_**KWIK-NOTE: Any assistance to your members to find other military members should be done through proper channels. In-**_

_**clude this in your Legal Assistance Program.**_

_****_

**RELATED TOPICS:**

**SECTION**

Access to Military Records

14-2

Freedom of Information Act

14-10

Privacy Act

14-12

_**Air National Guard Commander's Legal Deskbook**_

830

_**Chapter 23, People Problems**_

_**Section 23-22, Sexual Assault Response and Prevention**_

_**Page 1**_

**Sexual Assault Response and Prevention (SAPR) Program**

**Updated by Lt Col Frank A. Rodman, April 2013**

**AUTHORITY:** DoDD 6495.01, _Sexual Assault Prevention and Response (SAPR) Program_ (23 January 12); DoDI 6495.02, _Sexual Assault Prevention and Response Program Procedures_ (23 June 06, C1, 13 Nov 08); AFPD 36-60, _Sexual Assault Prevention and_ _Response (SAPR) Program_ (28 March 08); AFI 36-6001 (29 September 08, C1, 30 September 09); NGB/CF Memorandum

_"Appointment of Wing Executive Support Officers (Community Manager) as the Sexual Assault Response Coordinator"_ (28 Feb 06).

**OVERVIEW OF THE SEXUAL ASSAULT PREVENTION AND RESPONSE (SAPR) PROGRAM**

**** Sexual assault has become an unfortunate centerpiece for the military in recent years. Numerous sexual assault and inappropriate relationship scandals have had a broad impact to include large scale incidents at military academies and Air

Force basic training. Also, individual sexual assaults have become more prevalent. To prevent assaults and provide

greater assistance to victims, DoD and the military services place intense focus on the Sexual Assault Prevention and Re-

sponse (SAPR) Program. The DoD goal is the creation of a culture free of sexual assault, through prevention, education

and training, response capability, victim support, reporting, and accountability to enhance the safety and well-being of all covered DoDD 6495.01 and DoDI 6495.02. The SAPR Program is designed to focus on the victim, doing what is necessary to assist with victim recovery. Sexual assault victims must be protected from retaliation or a worsening of their situation. They must be permitted comprehensive medical treatment, including a sexual assault forensic examination (SAFE),

with mental health support as needed. With the most recent revisions to the DoD SAPR Program, ANG members are cov-

ered while in Title 10 active duty status or full-time National Guard duty as defined at 10 U.S.C 101(d)(3).

The military does not tolerate sexual assault and has implemented a comprehensive policy of prevention, response, and

accountability to ensure the safety, dignity, and well-being of all members of the Armed Forces. Three key components of

the new policy involve: 1) the creation of a Sexual Assault Response Coordinator (SARC) position (responsible for man-

aging the SAPR program); 2) the establishment of a volunteer Victim Advocate (VA) position (to provide one-on-one

support to a victim); and 3) the creation of three sexual assault reporting types (restricted, unrestricted, and independ-

ent), permitting a military member in Title 10 status to limit identifying information while still receiving appropriate

treatment and services.

**SEXUAL ASSAULT POLICY DEFINITIONS**

The Air Force set out its SAPR Program and policies in AFPD 36-60 and AFI 36-6001:

The Sexual Assault Prevention and Response (SAPR) Program reinforces the Air Force's commitment to eliminate sexual

assaults through awareness and prevention training, education, victim advocacy, response, reporting, and accountability.

The Air Force promotes sensitive care and confidential reporting for victims of sexual assault and accountability for those

who commit these crimes.

The United States Air Force does not tolerate sexual assault. Sexual assault is criminal conduct that falls short of the

standards America expects of its men and women in uniform. It violates Air Force Core Values. Inherent in the Air Force

Core Values of Integrity First, Service Before Self and Excellence in All We Do, is respect: self-respect, mutual respect,

and respect for the Air Force as an institution. It is Air Force policy to:

1. Eliminate sexual assault within the Department of the Air Force by fostering a culture of prevention, providing educa-

tion and training, response capability, victim support, reporting procedures, and accountability that enhances the safety

and well-being of all its members.

2. Provide an immediate, trained response capability for each report of sexual assault and ensure victims are protected

and treated with dignity and respect, and receive timely access to appropriate treatment and services.

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_**Chapter 23, People Problems**_

_**Section 23-22, Sexual Assault Response and Prevention**_

_**Page 2**_

3. Ensure strong commander-focused prevention and response programs, as well as law enforcement, investigative, and

criminal justice policies and procedures that address victim safety and hold assailants accountable for their actions to the fullest extent of the law.

4. Encourage prompt, complete, unrestricted reporting of sexual assault allegations to activate victim services and ac-

countability responses. Victims should be appropriately encouraged to make unrestricted reports.

5. Provide a restricted reporting option that allows a Service member victim to confidentially disclose information about

the assault to specified individuals and receive medical treatment, counseling, and advocacy without automatically trig-

gering an official investigative process.

6. Prohibit the enlistment or commissioning of personnel in the active duty Air Force, Air National Guard, or Air Force

Reserve components when the person has a qualifying conviction (see Attachment 1) for a crime of sexual assault.

As applied to the ANG, the new policy relevant sexual assault criminal elements are defined under state law.

**SEXUAL ASSAULT RESPONSE COORDINATOR (SARC)**

The SARC will serve as the single point of contact for coordinating appropriate and responsive care for sexual assault vic-

tims. SARCs will coordinate sexual assault victim care and sexual assault response when a sexual assault is reported. The

SARC will supervise SAPR VAs and may be called on to perform victim advocacy duties.

**SAPR VICTIM ADVOCATE (VA)**

**** The SAPR VA will provide non-clinical crisis intervention and on-going support, including referrals for adult sexual assault victims. Support includes providing information on available options and resources to victims.

**THREE TYPES OF REPORTING**

The three types of recognized reporting are restricted, unrestricted, and independent.

**Restricted Reporting**

Restricted reporting allows a sexual assault victim to confidentially disclose details of the assault to specified individuals ( _i.e.,_ SARC, SAPR VA, or healthcare personnel) and receive medical treatment, including emergency care, counseling, and assignment of a SARC and SAPR VA without triggering an official investigation. The victim's report to healthcare

personnel (including the information acquired from a SAFE Kit), SARCs, or SAPR VAs will not be reported to law en-

forcement or to the victim's command (initiating official investigative process), unless the victim consents or an estab-

lished exception applies under DoDI 6495.02. When a sexual assault is reported through restricted reporting, a SARC

will be notified to respond, assign a SAPR VA and offer the victim medical care and a SAFE. The victim also may report

the assault to a chaplain. The restricted reporting policy augments the current protections afforded privileged communi-

cations with a chaplain. The victim must acknowledge in writing understanding that restricted reporting may limit the

government's ability to prosecute the assailant and the reasons DoD policy favors unrestricted reporting. Restricted re-

porting should give a victim additional time and increased control over the release and management of personal informa-

tion, and empower him or her to seek information and support to make informed decisions about participating in the

criminal investigation. Improper disclosure of confidential communications under Restricted Reporting, improper release

of medical information, and other violations of this policy are prohibited and subject members to discipline under the

UCMJ, or other adverse personnel or administrative actions. Covered communications are oral, written, or electronic

communications of personally identifiable information made by the victim to the SARC, VA, or healthcare provider re-

lated to sexual assault. For public safety and command responsibility, the SARC must report information about a sexual

assault to the command within 24 hours of an incident, without personally identifying information about the victim.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 23, People Problems**_

_**Section 23-22, Sexual Assault Response and Prevention**_

_**Page 3**_

Sexual assault restricted reporting is available only to victims who are Service members and must concern a sexual as-

sault made against them. Service member, for restricted reports, is defined to include:

1. Air Force members on active duty;

2. Members of the Air Force Reserve or the Air National Guard performing active or inactive duty training as defined in

10 United States Code 101(d)(3);

3. Members of the Army, Navy or Marine Corps in comparable status to paragraphs 3.1.4.1 or 3.1.4.2;

4. Members of the Coast Guard when operating as a service of the Department of the Navy; and

5. A victim in a status described by paragraphs 3.1.4.1 through 3.1.4.4, at the time of the assault who remains a member

of the Air Reserve Component or its equivalent.

**Unrestricted Reporting**

Unrestricted reporting allows an eligible person who is sexually assaulted to access medical treatment and counseling

and request an official investigation of the allegation using existing reporting channels ( _e.g_., chain of command, law enforcement, healthcare personnel, the SARC). When a sexual assault is reported through unrestricted reporting, a SARC

will be notified as soon as possible, respond, assign a SAPR VA, and offer the victim medical care and a SAFE.

Regardless of whether the member elected restricted or unrestricted reporting, confidentially of medical information is

subject to DoD 6025.18-R, "DoD Health Information Privacy Regulation," January 2003.

**Independent Reporting**

**** An independent report is a non-confidential report revealed by a source other than the victim. Command can act on an independent report even if a restricted report was made. ****

If information about a sexual assault is disclosed to command from an independent source or to law enforcement from

other sources, command may report the matter to law enforcement, and law enforcement remains authorized to initiate

its own independent investigation. A victim's disclosure of his or her sexual assault to persons outside the protective

sphere covered by DoD policy may cause an investigation of the allegations. A restricted report nonetheless maintains

confidentiality with the SARC.

When information about a sexual assault comes to the commander's or law enforcement official's attention from an inde-

pendent source, a SARC, SAPR VA, or healthcare personnel may not disclose confidential communications if obtained

under restricted reporting.

**EXCEPTIONS TO CONFIDENTIALITY**

Where members elect restricted reporting, the prohibition on disclosing covered communications is not applicable to:

Command or law enforcement, when disclosure is authorized by the victim in writing.

Command or law enforcement, when disclosure is necessary to prevent or lessen a serious and imminent threat to the

health or safety of the victim or another.

Disability Retirement Boards and officials, when disclosure by a healthcare provider is required for fitness for duty for

disability retirement determinations, limited to information necessary to process disability retirement determination.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 23, People Problems**_

_**Section 23-22, Sexual Assault Response and Prevention**_

_**Page 4**_

SARC, VA, or healthcare provider, when disclosure is required for the supervision of direct victim services.

Military or civilian courts of competent jurisdiction, when disclosure is ordered by or is required by federal or state statute. SARC, VA, and healthcare providers will consult with the servicing legal office as do other recipients of privileged

information to determine if the criteria apply.

To officials or entities as required by a Federal or State statute or applicable U.S. international agreement.

Healthcare providers may also convey to command any possible adverse duty impact related to the victim's medical condi-

tion and prognosis.

**OTHER ASPECTS**

The case of a sexual assault upon an ANG member with no military nexus ( _e.g._ , the event occurred off-base when the

ANG member was in a non-duty status) presents command the opportunity to determine the level of support provided.

Certain services are available under the Air Force One Source program on a 24/7 basis; _see_ www.airforceonesource.com.

The DoD confidentiality policy does not create any actionable rights for the alleged offender nor the victim, and is not a

grant of immunity for actionable conduct by the offender or the victim. Covered communications that have been dis-

closed may be used in disciplinary proceedings against the offender or the victim, even if such communications were im-

properly disclosed. Collateral misconduct of the victim ( _e.g.,_ underage drinking, drug use) is not excused by the DoD policy, but should be considered after ensuring the sexual assault victim receives proper support.

**COMPARING THE SAPR PROGRAM TO THE VICTIM WITNESS ASSISTANCE PROGRAM (VWAP)**

The Air Force SAPR Program is separate and distinct from the Air Force Victim Witness Assistance Program (VWAP)

found at all active duty installations. VWAP is focused on providing support to sexual assault victims involved in crimi-

nal matters. While the SAPR Program may also involve victims of crime, its functions are focused on prevention and as-

sistance for victims whether a crime was involved. The VWAP is operated under the auspices of the Staff Judge Advocate

(SJA) and their legal office staff. VWAP typically focuses on issues such as keeping the victim informed of pre-trial cus-

tody, adjudication, the ability to secure financial support of active duty wrongdoers where a marital relationship exists,

etc. Another distinction between VWAP and SAPR is that VWAP has jurisdiction to support all victims and witnesses

involved in a criminal matter, while the SAPR Program is for military members who suffer sexual assaults.

**THE ROLE OF THE JAG IN THE SAPR PROGRAM**

The legal complexities of the SAPR Program are within the normal scope of an SJA's training. Issues such as prosecution,

evidence, criminal and civil matters, privacy and disclosure requirements are areas where attorneys are subject matter

experts. However, concerns such as ethics ( _e.g._ , attorney-client privilege as to the types of reporting) and confusion (commanders who rely on JAGs to advise them, and unit members at large who see JAGs as the law) make JAGs ill-suited to

serve in the role of a SARC. To accomplish the SAPR Program's goals, JAGs offer support to a SARC by advising on

rights, answering legal questions, coordinating on MOUs, interpretation of authority, and discovering and ascertaining

state specific issues.

**AIR FORCE VERSUS AIR NATIONAL GUARD APPROACH TO THE SAPR PROGRAM**

There are distinctions between how the Air Force and Air National Guard implemented the SAPR Program. The Air

Force installed SARCs at every Air Force base, while the ANG initially had one SARC at a national level. Through a 28

February 2006 NGB/CF memorandum, the Wing Executive Officer was designated as the Wing-level SARC. The VA staff

for both the Air Force and Air National Guard comes from a pool of military volunteers assuming this responsibility as

an additional duty.

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_**Chapter 23, People Problems**_

_**Section 23-22, Sexual Assault Response and Prevention**_

_**Page 5**_

Most ANG Wings and Units designate a Wing or Group-level SARC. An ANG unit should have a wing level SARC:

\- to boost the SAPR program's effectiveness at a Wing level.

\- to better track with the Air Force practice of staffing a SARC at all bases.

\- to focus exclusively on the wing and Air Force policy, whereas the Joint Headquarters SARC must support both the Air

and Army National Guard and a Wing-level SARC will be more familiar with ANG culture, nuances and expectations, is

an ANG deployable asset, and may be keener on Air Force training requirements.

\- to build a SAPR program more in tune with Air Force concerns, which may include SAPR Program as a Special Interest

Item on UCIs and/or ORIs.

\- to provide a Wing asset to assist the SARC from the Joint Force Headquarters.

**SUGGESTED PLAN FOR A QUALITY SAPR PROGRAM:**

1. Designate a SARC and have the person trained. National Guard SARCs often serve as an additional duty. Provide sup-

port for the SARCs, by providing days for training, establishing community ties, recruitment and training the VA staff,

and provide for the physical requirements, including office space and a locking storage cabinet.

2. The SARC recruits, appoints, and trains those willing to serve as a VA.

3. The SARC builds a team of select ANG officers to serve on a board or council for support and prevention. The board

chair should be the vice commander.

4. The SARC promotes the program. This can be done by informational e-mails, briefing command and unit members,

creating a web site, publication of articles in the unit paper, etc. The unit commander and/or vice commander should

voice a commitment to the program and require all personnel to attend training.

5. The SARC trains unit personnel. The Air Force requires certain training, and ANG-unique training applies. SF and

medical personnel need special training.

6. Create strong links with community resources. The SARC should establish relationships with the local sexual assault

response center, law enforcement, medical facilities, and the prosecutor's office. MOUs should be considered to

strengthen bonds, force both parties to give the situation well-deserved attention and increase visibility. The SARC

should also coordinate medical support options with unit medical personnel and, through them, the nearest active duty

medical support facility.

7. The SARC produces and distributes informational materials. These might include a handbook, a tri-fold handout on

the unit's SAPR program, a PowerPoint presentation highlighting ANG aspects, a wallet-sized handout, and a handbook

for victims, commanders, and the VA.

8. Have the SARC focus on pragmatic items for sexual assault prevention and response. Lofty, unrealistic plans and ap-

proaches should be avoided.

9. Have the SARC attend local and state conferences. Multiple victim services at a state and local level can be readily dis-

covered, networking contacts fostered and current developments learned by attendance.

10. Associate with a local Air Force base, if possible. The Air Force's robust SARC offices, which include a dedicated

SARC and assistants, can offer tremendous support.

_**Air National Guard Commander's Legal Deskbook**_

835

_**Chapter 23, People Problems**_

_**Section 23 - 22, Sexual Assault Response and Prevention**_

_**Page 6**_

**FEDERAL VICTIM RIGHTS MAY DIFFER FROM STATE RIGHTS**

A standard set of federal rights exist for victims, but state laws regarding victim rights can vary from state to state, with many rights overlapping. One significant item varying from state to state is whether a report of a sexual assault must be

made to local law enforcement. The SJA can assist the command and the SARC in ascertaining unique state rights and

reporting requirements.

**CONCLUSION**

The SAPR Program should be a prime focus at all command levels. Protecting the victim's privacy rights is paramount.

Proper procedures must be followed to assist victims and help prevent any sexual assaults from occurring in the organiza-

tion.

_**Air National Guard Commander's Legal Deskbook**_

836

**Chapter 24, Quality Force Management**

**Table of Contents**

**Section**

24 - 1 Table of Contents

24 - 2 Administrative Demotion of Airmen

24 - 3 Administrative Discharge of Enlisted Personnel

24 - 4 Administrative Discharge of Officers

24 - 5 Letters of Admonition and Reprimand

24 - 6 Barring Reenlistment

24 - 7 Counseling

24 - 8 Dropping ANG Officers from the Rolls Instead of Administrative Discharge

24 - 9 ID Card Retrieval

24 - 10 Mailing or Delivery - Affidavits and Certificates of Service

24 - 11 Nonjudicial Punishment

24 - 12 Quality Force Management Actions

24 - 13 Revocation of Security Clearance

24 - 14 Selective Enforcement

24 - 15 Air National Guard Fitness Program

24 - 16 Unfavorable Information Files and Control Rosters

_**Air National Guard Commander's Legal Deskbook**_

837

_**Chapter 24, Quality Force Management**_

_**Section 24-2 Administrative Demotion of Airmen**_

_**Page 1**_

**Administrative Demotion of Airman**

**Updated by Lt Col Beverly G. Schneider, October 2013**

**AUTHORITY:** ANGI 36-2503, _Administrative Demotion of Airmen_ (24 February 2010, certified current 12 April 2012); AFPD 36-25 _Military Promotion and Demotion_ (21 June 1993); AFI 36-3209, _Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members_ (14 April 2005, IC3, 20 September 2011); ANGI 36-101, _The Active Guard/Reserve_ _(AGR) Program_ (3 June 2010); AFI 36-2905, _Fitness Program_ (1 July 2010, AFGM6, 2 August 2013); applicable state codes.

**DEMOTIONS**

Administrative demotions apply to airmen in grades E-1 to E-9. This disciplinary tool can result in demotions of one

grade or three or more grades. As the demotion process may become very complex, the commander should consult with

the staff judge advocate prior to taking action. Additionally, a thorough investigation of the charge and the member's mili-

tary record should be made to determine what appropriate quality force management tool should be used (administrative

demotion, nonjudicial punishment, reprimand, administrative discharge or court-martial). Once the administrative demo-

tion process is complete, the staff judge advocate should review it for legal sufficiency.

Do not demote a member when action under Article 15 or other sections of the UCMJ is more appropriate. Do not forgo

demotion because discharge is contemplated.

**RANK**

**DEMOTION AUTHORITY**

Traditional Guardsmen E-1 State Adjutant General, but may be delegated to wing, group or

to E-6

base commander

Traditional Guardsmen E-7 State Adjutant General, but may be delegated to Assistant Adjutant

to E-9

for Air

Full-time AGRs

State Adjutant General*

Members on active duty

Director, Air National Guard, with concurrence of the State

with NGB or ANG

Adjutant General

Readiness Center

* ANGI 36-2503 and ANGI 36-101 do not specify a separate demotion authority for AGRs. However, the State Adjutant

General holds the authority to terminate AGR status for cause.

**REASONS FOR DEMOTION**

Although there are separate paragraphs in the regulation for the various ways in which members may be subject to demo-

tion, each of them should be properly cited, and all of these reasons are conceptually similar. They are:

1. Failure to complete training;

2. Failure to attain grade/skill relationship;

3. Failure to attain and maintain fitness standards;

4. Unsatisfactory participation;

5. Failure to fulfill responsibilities;

6. Voluntary change of assignment;

7. Overgrade assignment expiration; or

8. AGR priority placement program position declination.

_**Air National Guard Commander's Legal Deskbook**_

838

_**Chapter 24, Quality Force Management**_

_**Section 24-2 Administrative Demotion of Airmen**_

_**Page 2**_

Documentation is critical to establish the basis for administrative demotion.

**FAILURE TO COMPLETE TRAINING**

1. Airmen promoted to attend Air Force Reserve Officer Training Course, the Flight Screening Program, or the ANG

Academy of Military Science who fail to complete such training will be demoted to the last grade satisfactorily held.

2. Airmen promoted under Retraining Promotion Program, IAW ANGI 36-2502, who fail to qualify for the new AFSC

within the specified time limits will be demoted to the last grade satisfactorily held.

3. Airmen promoted to E-3 while on initial active duty for training must qualify for the AFSC within the time limits

specified or be demoted to the last grade satisfactorily held.

**FAILURE TO ATTAIN GRADE/SKILL RELATIONSHIP**

Airmen who fail to attain the AFSC or PAFSC skill level necessary to support their grade within the time limits specified

by the commander will be demoted to a grade commensurate with their skill level.

**FAILURE TO ATTAIN/MAINTAIN FITNESS STANDARDS**

Commanders may demote a member after a 4th fitness test failure (score < 75).

**UNSATISFACTORY PARTICIPATION**

1. Six unexcused absences in a continuous 12-month period will support the first administrative demotion. An absence is

one four-hour UTA period. Commanders may pursue multiple sequential demotions for unsatisfactory performance. Af-

ter six unexcused absences, the commander may send the airman a certified memorandum ( _see_ Attachment 4 of AFI 36-

2503), return receipt requested, advising the airman that demotion action is being initiated.

2. After nine unexcused absences, action may begin under AFI 36-3209, _Separation and Retirement Procedures for Air National_ _Guard and Air Force Reserve Members_. Per AFRC guidance, do not transfer unsatisfactory participants to the Inactive Ready Reserve, absent a strong justification as to the member's potential for future service. AFRC/CC policy strongly supports

discharge over assignment to the IRR.

**FAILURE TO FULFILL RESPONSIBILITIES**

An airman may be demoted if he or she fails to fulfill responsibilities prescribed in AFI 36-2618, The Enlisted Force

Structure, to include substandard (unsatisfactory) performance, failure to perform assigned duties properly, showing of a

progressive downward trend in performance, and failure to maintain standards of dress and personal appearance or mili-

tary deportment. _See_ AFI 36-2903, _Dress and Personal Appearance of Air Force Personnel._

**VOLUNTARY CHANGE OF ASSIGNMENT WITH REDUCED GRADE**

The procedures for demotion do not apply when an airman voluntarily reduces rank for a change of assignment or accep-

tance of a military duty tour. Before being demoted for a voluntary change of assignment, the member must make a writ-

ten statement indicating acceptance of the demotion, understanding this demotion will not preclude future promotion.

**OVERGRADE ASSIGNMENT EXPIRATION**

When an authorized period of overgrade assignment expires, and no other assignment option is available, the airman

must be demoted.

**AGR PRIORITY PLACEMENT PROGRAM POSITION DECLINATION**

An overgrade full-time national guard member who declines a position offered under the priority placement program

must be reduced in grade to that authorized by his/her United Manpower Document by 30 days after declination.

_**Air National Guard Commander's Legal Deskbook**_

839

_**Chapter 24, Quality Force Management**_

_**Section 24-2 Administrative Demotion of Airmen**_

_**Page 3**_

**PROCEDURES FOR DEMOTION**

**BURDEN OF PROOF REQUIRED TO ADMINISTRATIVELY DEMOTE**

The demotion authority must be convinced by a preponderance of the evidence that the action is warranted. This means

that the evidence warranting demotion must outweigh, even slightly, the evidence that the demotion is not warranted.

The demotion authority may consider all matters in the file that are relevant even though some of these matters may not

be admissible in a judicial proceeding such as a court-martial.

**NOTIFICATION OF UNEXCUSED ABSENCES**

After each unattended scheduled training period, unit commanders must notify unit members of their unexcused ab-

sence and the adverse effects of that absence by letter sent either by regular mail or certified mail, depending on the num-

ber of absences in a twelve-month period. However, this does not preclude demotion or other disciplinary action if the

member otherwise had notice of drill periods and failed to attend.

**NOTIFICATION OF DEMOTION ACTION**

The unit commander of the airman will inform the airman in writing by certified mail return receipt requested, of the

commander's intention to recommend demotion. This notification will contain all of the elements in ANGI 36-2503,

para. 4.1, including, but not limited to:

1. The specific reasons and paragraphs in ANGI 36-2503 for the proposed action;

2. A complete summary of the facts;

3. Instructions to the airman to acknowledge receipt of the notification within 5 calendar days, and if the airman does

not concur with the demotion action, the right to submit matters within 20 days of giving notice of the non-concurrence;

4. Instructions to the airman to concur or not concur no later than the end-of-day roll call following the second UTA af-

ter acknowledgment of the action;

5. A statement that the airman may consult with military counsel; and

6. If applicable, a statement that the airman may retire or resign, in lieu of the administrative demotion.

A sample letter is contained in the instruction and should be used as a model. Judge Advocate (JAG) review at this stage

is very important because it is much easier to correct any problems before the first letter recommending demotion goes

out than to salvage the effort after it has been improperly commenced. JAGs should know whom the commander has

tasked with the administrative details for demotions and work closely with that person.

**MILITARY COUNSEL**

The member has the right to counsel, but watch out for conflicts! Often a member comes in to see the JAG before the

commander requests legal advice. It is easy for the JAG to start a counseling session with the member, which might later

deprive the commander of that JAG's services. _See also_ , 24 Apr 2006 TJAG Policy Memorandum on Delivery of Defense

Services. Commanders and SJAs should make every reasonable effort to select a defense counsel from outside the unit.

**PERSONAL INTERVIEW**

The airman is entitled to present any documents he or she chooses in response to an administrative demotion action.

The airman is also entitled to a personal interview with his or her immediate commander before the commander takes

any action.

**THE DEMOTION PROCESS**

After considering all the matters presented, an immediate commander who is also the demotion authority will either ter-

minate the demotion action or request the SJA review for legal sufficiency prior to effecting the demotion. If the SJA de-

termines there is legal sufficiency to support a finding for demotion, the immediate commander may proceed with the

_**Air National Guard Commander's Legal Deskbook**_

840

_**Chapter 24, Quality Force Management**_

_**Section 24-2 Administrative Demotion of Airmen**_

_**Page 4**_

demotion action. If the case lacks legal sufficiency, it may be terminated or re-opened for further development of the

facts. The airman should be advised in writing by certified mail or by personal delivery of the decision.

An immediate commander who is not the demotion authority will consider all the matters presented and then:

1. Terminate the demotion action, or

2. Prepare a written summary of that personal interview (if any), include that summary in the case file, and forward the

case file to the demotion authority with an appropriate recommendation. The immediate commander will immediately

notify the airman in writing by certified mail or by personal delivery of the decision to continue processing the demotion

action or to terminate it.

The demotion authority who is not the airman's immediate commander will then obtain a legal review from the servicing

SJA before rendering a final decision on the immediate commander's demotion recommendation. The demotion author-

ity will notify the airman's immediate commander in writing through the Force Support Squadron (FSS) of a decision to

effect the demotion. The airman's commander will then notify the airman in writing by certified mail or personal delivery

of the decision.

**CONCLUSION**

Normally, commanders have already decided to take some action by the time they consult with the JAG. Commanders

should expect their JAG to be prepared to lay out their options (demotion, discharge, state action) and make a recommen-

dation. A little time spent by the JAG with the administrative personnel and a fast turnaround will pay big dividends.

As with any adverse action commanders confront, there are many procedural requirements to ensure compliance with

the regulations, and that the affected member receives notice of the intended action, an opportunity to be heard, and the

right to consult with counsel. ANGI 36-2503 procedures are more efficiently handled through use of form letters found

in the regulation which can be made easily adaptable to most factual situations. These forms should make processing

these actions more efficient and should be prepared and used in coordination with the staff judge advocate.

_**KWIK-NOTE: States should supplement this topic by developing their own administrative demotion processing procedures**_

_**and by adapting the sample letters and forms to their own use.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Administrative Discharge of Enlisted Personnel

24-3

Assignments

1-5

Evidence – Differing Standards and Burdens of Proof

8-4

Judicial Review of Military Administrative Actions

18-5

Legal Assistance to Unit Members and the Role of the Judge Advocate to the Commander

17-9

Legal Reviews

17-11

Mailing or Delivery – Affidavits and Certificates of Service

24-10

Promotion of ANG Airmen

1-30

Quality Force Management Actions

24-12

Transfer to the Individual Ready Reserve

1-37

Unsatisfactory Participation

1-40

Fitness Program

24-15

_**Air National Guard Commander's Legal Deskbook**_

841

_**Chapter 42, Quality Force Management**_

_**Section 24-3 Administrative Discharge of Enlisted Personnel**_

_**Page 1**_

**Administrative Discharge of Enlisted Personnel**

**Updated by Lt Col Beverly G. Schneider, October 2013**

**AUTHORITY:** AFI 36-3209, _Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members_ (14

April 2005, IC 3, 20 September 2011); AFI 31-501, _Personnel Security Program Management_ (27 January 2005, IC 2, 29 November 2012, AFGM2013-02); AFI 36-2905, _Fitness Program_ (1 July 2010, AFGM6, 2 August 2013); TJAG ANG/JA _Memo-_

_randum on Delivery of Defense Services_ (24 Apr 2006); applicable state law. 

## INTRODUCTION

Airmen have the privilege to serve in the Air National Guard, not the irrevocable right to do so. A commander has sev-

eral options for removing or discharging unfit enlisted members from the Guard program. An administrative discharge is

a discharge from both the state ANG and as a Reserve of the Air Force. As with active duty airmen, an ANG enlisted

member's service will be characterized as either Honorable, General (Under Honorable Conditions), or Under Other

Than Honorable Conditions (UOTHC).

AFI 36-3209 states the permissible grounds for discharging an airman. They fall into two broad categories: voluntary and

involuntary. The AFI requires discharge in certain limited cases and permits discharge in others. Particular attention

must be paid to the characterization of discharge, whatever the category. For example, it is probably not appropriate to

assign an honorable characterization of discharge to a member who engaged in serious misconduct, as this could lead to

problem members reenlisting in another unit or service.

**VOLUNTARY GROUNDS**

AFI 36-3209 specifies the following voluntary grounds for discharge:

1. Expiration of Enlistment: An enlisted member whose enlistment expires is automatically discharged.

2. Immediate Re-enlistment: Members who reenlist are discharged before expiration of term of service, with the effective

date of discharge the day before reenlistment.

3. Incompatible Status or Change of Military Affiliation: Members who earn a commission, enlist in an active

duty component, receive an ROTC scholarship, or join the ROTC advanced program are discharged from service.

4. Removal from Unit: Members who move beyond a reasonable commuting distance may request separation.

5. Incompatible Occupation: A member with an incompatible occupation may request separation.

6. Retirement: Members approved for retirement separate and enter into the Retired Reserve.

7. Religious Vows: Members who join a religious order or take incompatible religious vows may request separation.

8. Own Convenience: Members not in their first term of service may request separation.

9. Early Release to Further Education or Training: Members may request separation to attend a formal school or training

program incompatible with their service.

10. Public Office: ANG members, not in their first term and who do not have a service commitment based on formal

training or education, may request separation if they are elected or appointed to public office.

_**Air National Guard Commander's Legal Deskbook**_

842

_**Chapter 42, Quality Force Management**_

_**Section 24-3 Administrative Discharge of Enlisted Personnel**_

_**Page 2**_

11. Dependency or Hardship: Members may request separation if they have serious and documented family obligations

or undue hardship.

12. Pregnancy or childbirth: Female members (only) may request separation for pregnancy or childbirth.

13. Conscientious Objector: A member with a bona fide belief rejecting all forms of violence may request separation.

14. Sole Surviving Son or Daughter (AKA the "Private Ryan" Rule): A member may request separation if they have a sib-

ling or parent who dies in the line of duty, leaving them the sole surviving son or daughter.

15. Insufficient Retainability for Mobilization or Ineligiblity for Worldwide Deployment: Members requesting exemption

from activation or deployment due to insufficient retainability must also apply for separation.

16. Discharge for the Good of the Service: Members whose conduct would render them triable by court-martial may re-

quest separation for the good of the service.

17. Miscellaneous Reasons: Members may request separation for other reasons, but the needs of the service are the para-

mount consideration. In the past, this has facilitated separations for the victims of well-known cases of fraternization or

other non-criminal conduct bringing discredit upon the service.

**INVOLUNTARY GROUNDS**

1. Selective Retention/Non-selection for Re-enlistment: Members non-selected for retention will be separated.

2. Unsatisfactory Participation: Members with 9 unexcused absences in a 12 month period may and should be separated,

absent substantial evidence of the potential for future deployment or mobilization. PALACE CHASE obligors must be

processed IAW AFI 36-3205.

3. Parenthood: After counseling and remedial measures, commanders should separate members who cannot satisfactorily

perform their duties or cannot deploy because of parental responsibilities.

4. Conditions That Interfere with Military Service: Commanders may separate members who have medical conditions

that do not disqualify them under AFI 48-123, but interfere with military service (such as personality disorders or sleep-

walking) or who do not qualify for continued military service for non-service-connected medical conditions developed

not in the line of duty.

5. Failure to Respond to Official Correspondence/Inability to Locate: Members who do not reply to official correspon-

dence and members who cannot be located will be discharged; specific mailing requirements must be met. Normally,

commanders use the unsatisfactory participation section more often.

6. Entrance or Service in the Armed Forces of a Foreign Country/Accepting Civil Employment with a Foreign Country/

Loss of Nationality: Used most often for non-citizens returning to their home countries.

7. Deactivation of Unit: If the unit deactivates, and no appropriate vacancies exist in the local area, the member may be

separated.

8. Provisions of state law: Some states have additional reasons for separation.

9. Failure to Comply with Requirement for a Medical Examination: For members who have no MSO who fail to complete

medical readiness requirements within 90 days of the due date.

_**Air National Guard Commander's Legal Deskbook**_

843

_**Chapter 42, Quality Force Management**_

_**Section 24-3 Administrative Discharge of Enlisted Personnel**_

_**Page 3**_

10. Physical Disqualification: Members who fail to meet medical retention criteria under AFI 48-123 or cannot otherwise

perform their duties and who cannot be retrained or reassigned.

11. Minority, Erroneous, Defective and Fraudulent Entry: Members who have defects or fraud in their initial accession

into the service will be separated. Some defects may be waived.

12. Entry Level Performance and Conduct: Separate members in an entry level status who are unqualified for further mili-

tary service due to unsatisfactory performance or conduct; usually for members who cannot adjust to military service.

13. Excess or Overgrade Members: Members who exceed the time limits and do not find another position may be sepa-

rated.

14. Substandard (Unsatisfactory) Performance: Members may be separated for failure to perform assigned duties, down-

ward trend in performance ratings, failure to demonstrate qualities of leadership for grade, failure to maintain dress/

appearance standards, failure to progress in OJT, personal finances, failure to attain job skill proficiency, unsanitary habits, readiness, body fat standards, fitness, school requirements.

15. Drug or Alcohol Rehabilitation Failure: Members who have self-identified, but failed to complete rehabilitation may

be separated.

16. Misconduct: Serious or recurring minor misconduct, including drug abuse, failure to support dependents, GTC

abuse, civilian conviction, and other misconduct. Consult as soon as possible with your SJA. A waiver is required for re-

tention of members with a positive urinalysis result.

17. Discharge in the Interests of National Security: Usually used for members who cannot obtain or retain a security

clearance required for their position.

18. Secretarial Plenary Authority: SECAF may discharge any member in the best interests of the Air Force.

**CHARACTERIZATIONS**

Different grounds for discharge have different permissible characterizations. The following definitions serve as general

guidance for evaluating cases where AFI 36-3209 allows different levels of characterization:

HONORABLE: The member's conduct has generally met USAF standards for acceptable conduct and performance of

duty.

GENERAL (UNDER HONORABLE CONDITIONS): Duty performance has been honest and faithful, but the negative

aspects of the member's performance outweighed the positive aspects of the member's service.

UNDER OTHER THAN HONORABLE CONDITIONS (UOTHC): A member's service may be characterized as UOTHC

only if the member is given an opportunity for a hearing by an administrative discharge board. Conduct in the civilian

community of a member not on active duty or ADT may be used to characterize service as UOTHC only if the conduct

directly affects the performance of military duties.

Early identification and documentation of an unfit or unsuitable member helps to expedite the discharge process. An iso-

lated incident is not a sufficient basis for discharge, unless the incident involves serious misconduct or a civilian conviction. However, the civilian conviction must be for an offense which warrants discharge and for which a punitive dis-

charge would be authorized for the same or a closely related offense under the UCMJ or a state military code. Evaluation

should be made on a case-by-case basis.

_**Air National Guard Commander's Legal Deskbook**_

844

_**Chapter 42, Quality Force Management**_

_**Section 24-3 Administrative Discharge of Enlisted Personnel**_

_**Page 4**_

When a member commits a serious offense (remember, even in civilian status most state military laws provide the mem-

ber is at all times a member of the organized militia of that state), look in the UCMJ or your state military code to see if the offense carries a punitive discharge. If it does, you may begin administrative discharge action based upon the misconduct, even if the member has not yet been convicted of that offense. The administrative discharge process requires proof

by a preponderance of credible evidence. This is much less than the beyond a reasonable doubt standard used by criminal

courts. Before beginning a discharge action based on a civilian conviction, closely consult with your staff judge advocate.

While a criminal conviction for a serious offense can be the basis for an involuntary discharge, it may, under some circum-

stances, be better and quicker to proceed with an administrative discharge on the basis of the underlying misconduct.

The majority of cases are based on a more prolonged pattern or course of conduct, which would establish reasons for in-

voluntary separation as outlined in AFI 36-3209. In these cases, there must be sufficient documentation of the grounds

for discharge before the action is initiated. Often, an individual should be counseled, reprimanded, and demoted

(through administrative demotion or nonjudicial punishment) before a discharge action is initiated.

**ALTERNATIVES TO FORMAL DISCHARGE ACTION**

When other administrative or disciplinary actions have met with resistance or resulted in minimal improvement, the

commander should consult with the member's first sergeant, FSS, and the staff judge advocate. At this point, the mem-

ber's whole record should be reviewed, including the Expiration of Term of Service. If an individual's re-enlistment date

is approaching, the commander should consider giving written notice to the individual that reenlistment will not be ex-

tended. Transfer to the Inactive Ready Reserve (IRR) should also be considered.

**PROCEDURES AND REQUIREMENTS**

If denial of re-enlistment is not an appropriate method of separation, the staff judge advocate should help the com-

mander determine if reasons for involuntary discharge exist. If the commander believes an administrative discharge is

appropriate, the commander will send via certified mail/return receipt requested or personally deliver a Letter of Notifica-

tion to the member containing the detailed reasons for the proposed discharge and the type of discharge to be recom-

mended to the discharge authority. General forms are provided in AFI 36-3209. The documents are drafted with the ad-

vice of the staff judge advocate. The discharge process begins when the Letter of Notification is sent to the member. If an

UOTHC is recommended or the member has over six years of service, the member has a right to appear before an admin-

istrative separation board; the member may waive this right.

Note, that under AFI 31-501, there may be certain requirements for proceeding in administrative discharge actions if the

case involves a national security issue. _See_ the _Deskbook_ topic entitled _"PERSONNEL SECURITY ACCESS PROGRAM._ "

If you cannot or choose not to present the discharge paperwork to the member in person, you must establish proof of

delivery of the Letter of Notification to the member or an agent by sending it certified mail, return receipt requested.

Once the discharge process has begun, depending upon the nature of the action, the individual has certain rights, includ-

ing to confer with military or civilian counsel (the latter at the individual's own expense), and sometimes, to present the

case before an administrative discharge board. It is important to know when the individual has the right to a board.

**CONDITIONAL WAIVERS**

The "conditional waiver" approach may resolve some of these "right to a board" cases. This approach is not required, but often it may be appropriate. The conditional waiver is simply the member waiving a board and consenting to the administrative discharge on condition that the discharge characterization will be a certain type mutually agreed upon. Usually

the waiver of the board is given in exchange for the member receiving the next higher characterization of discharge than

the one initially recommended in the Letter of Notification. For example, if an UOTHC characterization is initially recom-

mended, a conditional waiver could result in a general discharge. Where there is no board entitlement in a case, the con-

ditional waiver is not used.

_**Air National Guard Commander's Legal Deskbook**_

845

_**Chapter 42, Quality Force Management**_

_**Section 24-3 Administrative Discharge of Enlisted Personnel**_

_**Page 5**_

**RECOUPMENT OF BONUS OR EDUCATION FUNDS**

Federal law allows the government to recoup military bonuses and educational assistance under certain circumstances.

However, the member must be made aware of this before any action is taken that could cause the member to not com-

plete an enlistment. In a discharge action, this notice is given to the member in the Letter of Notification, which states

how their bonus or educational assistance could be recouped by the government.

**LACK OF RESPONSE FROM MEMBER DOES NOT DELAY THE PROCESS**

If the member being discharged fails to respond to the Letter of Notification within the allotted time, the administrative

discharge record must be so documented. The discharge action proceeds by forwarding the record to the final discharge

authority, which is usually the State Headquarters.

**CONCLUSION**

Military discharges that are less than honorable can still be a stigma in the civilian world, particularly with regard to federal employment. Although most discharge cases are uncontested, by preparing the documentation with the advice of the

staff judge advocate and adhering to the AFI's time requirements, these members can be discharged expeditiously with

minimal likelihood of the action later being overturned or the character of the discharge being upgraded if the former

member seeks review before the Board for Correction of Military Records.

_**KWIK-NOTE: Administrative discharge action is quicker and less expensive than a court-martial to remove problem mem-**_

_**bers of your unit.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

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**SECTION**

HIV

19-2

Barring Reenlistment

24-6

Command Directed Urinalysis

10-9

Conscientious Objectors

1-9

Consent Urinalysis Tests

10-8

Dependent Care Responsibilities

1-10

Drug Abuse

10-4

Enlistment And Reenlistment

1-13

Enlistment of Airmen – Defective

1-15

Homosexuality

1-18

Mailing Or Delivery – Affidavits And Certificates Of Service

24-10

Personnel Security Access Program

1-28

Pregnancy of ANG Personnel

1-29

Quality Force Management Actions

24-12

Revocation of Security Clearance

24-13

Selective Enforcement

24-14

Transfer to the Individual Ready Reserve (IRR)

1-37

Unsatisfactory Participation

1-40

Urinalysis Program

10-7

Fitness Program

24-15

_**Air National Guard Commander's Legal Deskbook**_

846

_**Chapter 24, Quality Force Management**_

_**Section 24-4 Administrative Discharge of Officers**_

_**Page 1**_

**Administrative Discharge of Officers**

**Updated By Col Beverly G. Schneider, October 2013**

**AUTHORITY:** AFI 36-3209, _Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members_ (14

April 2005, IC 3, 20 September 2011); TJAG ANG/JA _Memorandum on Delivery of Defense Services_ (24 Apr 2006); applicable state law. 

## INTRODUCTION

AFI 36-3209, Chapter 2, establishes two general categories for involuntary officer separations: 1) misconduct, moral or

professional dereliction, or substandard performance of duty (AFI 36-3209, Chapter 2, Section 2D); and 2) reasons that

do not involve misconduct on the part of the officer (AFI 36-3209, Chapter 2, Section 2C). Here, we address only the

most common reasons for discharge.

**REASONS FOR DISCHARGE: MISCONDUCT, MORAL OR PROFESSIONAL DERELICTION, SUBSTANDARD**

**PERFORMANCE OF DUTY**

Conduct that evidences misconduct or moral or professional dereliction by ANG officers includes:

1. Conduct incompatible with exemplary standards of personal conduct, character, and integrity such as:

a. Failure to meet financial obligations;

b. Mismanagement of government affairs;

c. Drug abuse; or

d. Serious or recurrent misconduct.

2. Misrepresentation or omission of material fact(s) in official statements or records.

3. Failure (when reasonably traced to factors within the officer's control) at any school attended at government expense.

4. Sexual perversion (as defined by your state law).

5. Conduct resulting in a loss of professional status necessary to performance of military duties.

6. Fear of flying: This applies to a rated officer suspended from flying status because the officer states in written or oral testimony a fear of flying and medical personnel determine the officer is physically qualified to fly.

7. Refusal or unexplained failure to participate in required training activities. 8. Retention is not consistent with the interest of national security.

**REASONS FOR DISCHARGE: SUBSTANDARD PERFORMANCE OF DUTY**

Conduct that evidences substandard performance of duty by ANG officers includes:

1. Failure to show acceptable qualities of leadership required of the officer's grade.

2. Failure to achieve acceptable standards of professional proficiency required of the officer's grade.

3. Failure to properly discharge assignments commensurate with the officer's grade and experience.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 24, Quality Force Management**_

_**Section 24-4 Administrative Discharge of Officers**_

_**Page 2**_

4. Progressive downward trend in the officer's duty performance resulting in an unacceptable record of effectiveness.

5. Record of marginal service over an extended period of time.

6. Apathy or bad attitude.

7. Character or behavior disorders which interfere with the officer's duty performance.

8. Failure to conform to the prescribed standards of dress, weight, bearing and behavior.

9. Inability to perform duties or unavailability to meet worldwide duties due to dependent care responsibilities.

10. Lack of response to training, impairing the officer's satisfactory performance of duties in the officer's assigned spe-

cialty.

11. Failure to maintain satisfactory progress while in an active status officer student program.

**REASONS FOR DISCHARGE: OTHER REASONS WITHIN THE MEMBER'S CONTROL**

1. Drug or alcohol abuse rehabilitation failure.

2. Conviction by civilian authorities.

3. Unsatisfactory participation: 9 UTA absences within 12 months.

**REASONS FOR DISCHARGE: REASONS OTHER THAN MISCONDUCT**

AFI 36-3209 also provides for separation of officers not qualified or cannot meet the obligations of service. Generally, discharge under these grounds is not based on misconduct of the individual officer. They include: not being qualified for pro-

motion, lengthy service, inability to locate, physical disqualification, failing to get a medical examination, accepting civil employment or military service with a foreign government, and loss of nationality,.

**EVALUATION AND ACTION**

As a commander you should examine and evaluate any information you receive which indicates an officer under your

command may be subject to separation under AFI 36-3209. Ensure that the case is thoroughly investigated, and the facts

are fully developed and documented.

Consult with your unit staff judge advocate (SJA) regarding any officer you believe may be subject to discharge under AFI

36-3209. Once you have determined you have an individual who qualifies for separation, recommend initiation of dis-

charge proceedings to the State Adjutant General (TAG), through your chain of command, using the format in AFI 36-

3209, Attachment 3. You must concisely state the basis for your recommendation and attach all investigative reports

and/or documents that substantiate it.

If the TAG believes action under AFI 36-3209 is appropriate, the TAG will send a letter of notification to the officer specifying the proposed discharge, the grounds and reasons therefor, and the rights of the officer respondent. In all AFI 36-

3209 cases, officers have the right to a board hearing. This right may be waived.

Eligible officers may tender a resignation or apply for transfer to the Retired Reserve at any time during the process. An

officer may not submit a conditional resignation. If the submission is made prior to the convening of a board, further ac-

tion is suspended. If the resignation or transfer is disapproved, the board may be convened.

_**Air National Guard Commander's Legal Deskbook**_

848

_**Chapter 24, Quality Force Management**_

_**Section 24-4 Administrative Discharge of Officers**_

_**Page 3**_

Upon the officer's response or lack of response to the notification letter, the TAG determines if continued discharge ac-

tion is warranted. If it is not, the case is closed. If so, the TAG refers the case to the Chief, of the National Guard

Bureau (CNGB) to convene a discharge board. ANG officers not on active duty are discharged through the withdrawal of

Federal recognition process in Title 32 U.S.C., Section 323. Discharge boards convened under this instruction for ANG

officers are withdrawal of Federal recognition boards. At a minimum, the recorder, board members, and the legal advisor

will be ordered to duty in a Title 10 status for the board. The discharge board holds a hearing and makes recommenda-

tions regarding discharge and characterization. The board's recommendation goes back to the CNGB through the TAG.

Withdrawal of Federal recognition is accomplished by the CNGB, for cases not requiring SAF approval. For cases requir-

ing SAF approval, the board report goes up to SAF through the Air Force Personnel Council.

In summary, the ANG commander initiates the discharge process with a recommendation to the TAG. If the TAG agrees,

the officer receives a Letter of Notification and may opt for a discharge board. The CNGB convenes the board. The board

of officers makes findings and recommendations regarding discharge and characterization, which it reports back to the

CNGB. A board's discharge recommendation may require approval by SAF, depending on the nature of the discharge.

**ALTERNATIVES TO BOARD PROCEEDINGS**

**Dropping From the Rolls** – AFI 36-3209 also provides for dropping ANG officers from the rolls of the Air Force if they have been convicted by civilian authorities and are sentenced to confinement in a state or federal penitentiary. Subject to

due process considerations, ANG officers may also be discharged if they are convicted by a foreign court.

**Resignation** – As a general rule, resignations will be accepted. However, whenever an officer submits a resignation, consult with the unit SJA to ensure appropriate documentation of the basis of the request and ensure the officer's request is

not subject to disapproval. Resignations are not automatic; they must be approved to be valid. Local commanders are not

the approval authority for resignations.

**CONCLUSION**

An officer discharge, also called Withdrawal of Federal Recognition, may be a long road. However, when proper documen-

tation exists and you consult early and often with your SJA, the process can be more efficient.

_**KWIK-NOTE: Early coordination will help speed the process.**_

**RELATED TOPICS:**

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**SECTION**

Federal Recognition of Officers

1-17

Federal Commission Status Withdrawal

1-16

Legal Reviews

17-11

Quality Force Management Actions

24-12

State ANG Headquarters

2-8

_**Air National Guard Commander's Legal Deskbook**_

849

_**Chapter 24, Quality Force Management**_

_**Section 24-5 Letters of Admonition and Reprimand**_

_**Page 1**_

**Letters of Admonition and Reprimand**

**Updated By Col Beverly G. Schneider, October 2013**

**AUTHORITY:** AFI 36-2907, _Unfavorable Information File (UIF) Program_ , Chapter 3 (17 June 2005). 

## INTRODUCTION

While many state Codes of Military Justice authorize letters of admonition or reprimand as forms of nonjudicial punish-

ment for less severe infractions, "administrative" letters of admonition or reprimand may also be used by commanders to document minor misconduct. Admonitions and reprimands may also be given orally, if a commander feels the conduct

does not warrant a written record. Your staff judge advocate will discourage verbal discipline, as it does not provide an

adequate record to assist in later disciplinary actions.

**ADMONITION**

An "Admonition" is a warning, reminder, or reproof given to deter repetition by the offender of the type of misconduct which resulted in the admonition and to advise the offender of the consequences that may flow from a recurrence of the

misconduct. It is a formalized version of a written counseling. A sample Letter of Admonition with a form acknowledg-

ment of receipt and a chance to respond is located at the bottom of this topic. Admonitions are usually given to avoid the

requirement of filing a Letter of Reprimand in an Unfavorable Information File (UIF). (Note: This requirement began to

apply to the ANG in 2016.)

**REPRIMAND**

A "Reprimand" is an act of censure which reproves or rebukes the offender for misconduct; it is more severe than a counseling or admonition. An admonition may be included in a "reprimand." A sample Letter of Reprimand with a form ac-

knowledgement of receipt and a chance to respond is located at the bottom of this topic. A commander may include a

reprimand as part of an Article 15/nonjudicial punishment action.

**GUIDANCE AND COMMAND DISCRETION**

While there is no specific ANGI or applicable AFI governing administrative admonitions and reprimands, commanders

and supervisors have inherent authority to issue them. There is new specific guidance in 2016 on questions of where to

file them, what use of them can be made, how long they may remain "on file," or what, if any, appeal results from their issuance. The commander may use them in determinations on promotion, assignment, OPRs, etc. based upon the commander's discretion. The only avenue of appeal from an administrative admonition or reprimand would appear to be

through a "complaint of wrongs" procedure pursuant to any applicable law or regulation. If the commander advises the member the reprimand or admonition will be destroyed if certain circumstances are met, the commander must do so, or

be subject to Inspector General Complaints, Congressional Inquiries, and/or FOIA requests.

In response to an ANG member's poor performance or a breach of proper conduct, if informal counseling fails to achieve

the desired result, or if an infraction is of a more serious nature, a commander or supervisor should consider an adminis-

trative letter of admonition or reprimand. The question of how serious an infraction must be for the commander to deal

with it administratively rather than nonjudicially, and if administratively, orally or in writing, is the commander's "call."

This should be made with the advice of the staff judge advocate, as these actions may form the building blocks for more

serious adverse action against the member in the future. While these actions usually follow unsuccessful counseling at-

tempts, counseling is not necessarily a prerequisite to issuing an admonition or reprimand. Each commander must use

judgment in deciding which rehabilitative tool to use. Sometimes a reprimand will get the offender's attention and effect

the desired change without resorting to protracted counseling. On the other hand, some offenders may only become

more recalcitrant if they perceive the early reprimand as unjust or premature.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 24, Quality Force Management**_

_**Section 24-5 Letters of Admonition and Reprimand**_

_**Page 2**_

**FORMAT**

Reprimands, admonitions, and counselings share a common recommended format. The following serves as a "blank"

that may be tailored to your specific purposes.

( _Date_ )

MEMORANDUM FOR ( _GRADE AND NAME_ )

FROM: ( _Office Symbol_ )

SUBJECT: Letter of (Reprimand/Admonishment/Counseling)

1. It has come to my attention you ... ( _Describe misconduct or substandard performance. Use additional paragraphs if necessary._ ) 2. You are hereby (reprimanded/admonished/counseled). (T _ailor language to match specific allegation. . Explain why actions_ _were unacceptable. Also state future expectations, especially in cases of substandard performance. Explain that any further instances of_ _misconduct or substandard performance could result in more severe action. Although not strictly required, reprimands usually cite a specific_ _section of the UCMJ. Stronger more severe language should be used depending on whether it is a counseling, admonition, or reprimand._ ) _(Following two paragraphs are mandatory_ )

3. AUTHORITY: 10 USC 8013. PURPOSE: To obtain any comments or documents you desire to submit (on a voluntary

basis) for consideration concerning this action. ROUTINE USES: Provides you an opportunity to submit comments or

documents for consideration. If provided, the comments or documents you submit become a part of the action. DISCLO-

SURE: Your written acknowledgment of receipt and signature are mandatory. Any other comment or document you pro-

vide is voluntary.

4. You will acknowledge receipt and return this letter to me within 30 calendar days of your receipt. Any comments or

documents you wish to be considered concerning this letter of (reprimand/admonition/counseling) will be included with

your response.

Commander's/Supervisor's

Signature Block

1st Endorsement, (Member's Name)

I acknowledge receipt and understanding of this letter on _____________ at _______ hours. I understand that if I intend

to submit a statement or other documents in response to this letter, I must do so within 30 calendar days of my receipt

of this letter.

Member's Signature Block

2nd Endorsement, (Commander's name) (DATE)

(member's name) (submitted matters/elected not to submit matters/did not respond within 30 days.) (Include the fol-

lowing if the member submitted matters but you continue to wish to impose discipline: I have considered the matters

submitted by the member and find that they do not merit rescinding this letter. I have attached these matters as part of

this letter as Attachment 1.)

Commander's/Supervisor's

Signature Block

_**Air National Guard Commander's Legal Deskbook**_

851

_**Chapter 24, Quality Force Management**_

_**Section 24-5 Letters of Admonition and Reprimand**_

_**Page 3**_

**PROCESS**

Commanders may administer discipline in person or via certified mail, return receipt requested. While issuing discipline

in person is preferred, it is not possible in some circumstances, such as when the member has refused to attend drill.

The certified mail and return receipt show that the member had notice of the disciplinary action. If a member fails or re-

fuses to acknowledge receipt, annotate the refusal/failure under the 1st Endorsement block. The second endorsement

serves to "close the loop" and show that the member had the opportunity to respond. While the above format is not

strictly required, it mirrors the active duty format and consistency will help later commanders or supervisors feel more

comfortable with the disciplinary action.

_**KWIK-NOTE: LOCs, LOAs, and LORs serve as the backbone of squadron level discipline. In addition to their remedial ef-**_

_**fect, they help establish a pattern if the member engages in additional misconduct in the future.**_

**RELATED TOPICS:**

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**SECTION**

Complaint of Wrongs

8-20

Counseling

24-7

Quality Force Management Actions

24-12

Sources of Commanders' Authority

2-7

_**Air National Guard Commander's Legal Deskbook**_

852

_**Chapter 24, Quality Force Management**_

_**Section 24-6 Barring Reenlistment**_

_**Page 1**_

**Barring Reenlistment**

**Updated By Lt Col Beverly G. Schneider, October 2013**

**AUTHORITY:** AFI 36-2606, _Reenlistment in the United States Air Force_ (9 May 2011, IC 1, 29 August 2012); ANGI 36-2002, _Enlistment and Reenlistment in the Air National Guard and as a Reserve of the Air Force_ (1 October 2012).

**CRITERIA**

Most ANG members discharged for misconduct have some history of poor performance, rather than one isolated inci-

dent. Often, we discover that the chain of command knew of these problems yet still allowed the member to reenlist.

The reenlistment policy of the Air National Guard is set forth in ANGI 36-2002, paragraph 4.1, as follows: "Continued

retention in the ANG is a command prerogative and not an inherent right of any individual." Further, "No individual will be reenlisted or extend their enlistment without the concurrence of the unit commander."

Certain factors preclude reenlistment. Fourteen ineligibility factors are identified in Table 4.1. Some of the situations that deny reenlistment or extension and do not permit waivers are:

l. Morally unacceptable persons convicted by a civilian court of an offense punishable by death or convicted of one or

more felonies, persons under restraint, persons having frequent difficulties with law enforcement;

2. Persons under parole, probation, or suspended sentence from a civil court (subject to listed exceptions);

3. Persons under the influence of alcohol or drugs and persons addicted to alcohol;

4. Persons with a documented history of mental illness;

5. Students enrolled in the advanced course of AFROTC, Army ROTC, or Naval ROTC, or scholarship students within

these programs;

6. Drug abusers, unless cleared of drug abuse charges;

7. Immigrant aliens enlisted in the ANG on or after l Jun 83 who have not acquired U.S. citizenship status during their

initial enlistment;

8. When expiration of term of service (ETS) is imminent, and members are under investigation, they may voluntarily ex-

tend for six-month periods until the case is decided. However, if they elect not to extend, they will be separated on their

ETS, and reenlistment is barred;

9. A person who presents a national security risk;

10. Individuals not selected for retention under state selective retention programs; and

11. Individuals convicted of a qualifying misdemeanor crime of domestic violence.

( _See_ ANGI 36-2002, Table 4.1 for full listing.)

Even when policy does not prohibit a member from reenlisting, the commander should carefully consider whether the

member meets that commander's "quality cut." A commander may deny reenlistment for virtually any reason, but the

most common non-mandatory reason is that the member has not performed up to the commander's expectations.

_**Air National Guard Commander's Legal Deskbook**_

853

_**Chapter 24, Quality Force Management**_

_**Section 24-6 Barring Reenlistment**_

_**Page 2**_

**POLICY**

Unless prohibited by regulation, the policy of the ANG allows commanders the authority to decide whether an airman is

reenlisted, extended, or retained. A commander is not required to reenlist, extend, or retain any airman, and command-

ers do not have to set out any reasons for their decision. The reenlistment decision is a "freebie" for the commander and

is often the best opportunity to remove members of the ANG who do not meet expectations or who are more trouble

than they are worth.

**EXERCISE YOUR DISCRETION WISELY**

The commander's ability to control the reenlistment or extension of enlistment of unit personnel is a valuable quality

force management tool. While no reasons need be given for the decision to not reenlist or extend the reenlistment of a

member, commanders should have a valid justification and documentation for their decision. Articulating a justification

could be important if the member later alleged the denial of reenlistment was based upon reprisal or unlawful discrimina-

tion based upon race, sex, etc. Before deciding to bar reenlistment, commanders should involve their FSS and staff judge

advocate.

**WAIVERS**

Members with disqualifying factors often request their commanders support a waiver for reenlistment. Commanders

should weigh the effect of a waiver extremely carefully. To illustrate, a member who has twice failed the fitness test will

probably not improve his or her fitness. A member who has a misdemeanor domestic violence conviction or a protective

order issued cannot bear arms. When you sign a waiver, you put your credibility on the line.

_**KWIK-NOTE: Membership in the Air National Guard is a privilege, not a right.**_

**RELATED TOPICS:**

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**SECTION**

Enlistment and Reenlistment

1-13

Judicial Review Of Military Administrative Actions

18-5

Quality Force Management Actions

24-12

Selective Retention in the Air National Guard

1-36

_**Air National Guard Commander's Legal Deskbook**_

854

_**Chapter 24, Quality Force Management**_

_**Section 24-7 Counseling**_

_**Page 1**_

**Counseling**

**Updated By Col Marshall Wilde, December 2014**

**AUTHORITY:** AFI 36-2907, _Unfavorable Information File (UIF) Program_ (26 November 2014). 

## INTRODUCTION

Counseling should serve as the commander's first tool for corrective action. This does not mean that all airmen who re-

quire counseling are in trouble, or that all airmen who are in trouble should be counseled. Airmen should be encouraged

to affirmatively seek the assistance of their supervisor or commander. The wisdom and maturity of the supervisor or com-

mander frequently provides the guidance necessary to improve job performance before a major problem develops which

requires more serious action. Sometimes the commander or supervisor should initiate counseling to correct habits or

shortcomings which are not criminal or illegal, but which can ultimately negatively affect job performance.

**COUNSELING VERSUS LETTERS OF COUNSELING**

Our Army brethren use the word "counseling" in a more general sense, meaning mentorship or leadership on a one-to-

one basis. In the Air Force, we usually use "counseling" to mean corrective action to address substandard performance,

while we use mentoring or feedback to describe a less formal process. While this subchapter addresses formal counsel-

ing, the Air Force encourages the frequent use of informal counseling, mentorship, and feedback in the workplace. These

tools often prevent the need for formal counseling.

**WHEN TO FORMALLY COUNSEL**

Airmen should be formally counseled soon after displaying substandard duty performance or behavior. This counseling

session should be documented by a letter of counseling (LOC). There are no guidelines for how long a commander will

retain a LOC, unless the LOC is filed in an unfavorable information file (UIF). Many commanders destroy LOCs one year

after the last recorded counseling session, or upon the member's reassignment or separation. Other commanders retain

the LOCs for the duration of the member's enlistment. Either way, retain the LOCs until there are no further issues with

the airman. In limited circumstances, a commander or supervisor may wish to verbally counsel a subordinate, usually

because they believe that under the circumstances the formality of an LOC would cause more harm than good. When

this is the case, we advise some documentation of the session through an MFR or some written record to provide docu-

mentation to serve as a record or evidence that the session occurred.

Counseling records may become very important if later, more serious adverse actions become necessary, including admin-

istrative discharge proceedings under AFI 36-3209. Counseling records may also provide a valuable history for new com-

manders or supervisors and help them to better understand existing problems and those curative steps already taken.

**CONTENTS OF A FORMAL COUNSELING RECORD**

Whether an LOC is used, the commander should ensure that supervisors who counsel airmen include in their documen-

tation at least the following:

1. A statement of the circumstances that brought about the counseling session;

2. A brief description of what was said by both the member and the supervisor conducting the session. This is made

simpler if the report is written immediately after the session;

3. The causes of the problem; and

4. The solution which was developed and the action taken or recommended.

_**Air National Guard Commander's Legal Deskbook**_

855

_**Chapter 24, Quality Force Management**_

_**Section 24-7 Counseling**_

_**Page 2**_

**ADVICE OF RIGHTS**

Usually, counseling sessions do not require advising members, whether military or civilian, of their constitutional rights.

However, if you suspect an airman has committed an offense under the UCMJ and/or state code and you ask him/her

questions that may lead to an incriminating answer without giving a rights advisement, you CANNOT use their state-

ments against them for military justice purposes. Civilians are normally not entitled to union representation during coun-

seling sessions. However, the judge advocate should consult with the Human Resources Office on this issue and check

the collective bargaining agreement, since union representation during counseling may have been negotiated in that con-

tract. Again, failure to advise members of their rights may prevent admissions or statements made by the airman or civil-

ian member from being used against them in subsequent actions.

If a counseling session has been convened by a commander concerning a situation for which disciplinary action could be

taken, you must consider advising the member of their rights. Commanders often wish to talk to their subordinates

about incidents of misconduct. As a practical matter, we advise against questioning the member directly by the com-

mander. Instead, take the future view: "How are we going to get beyond this?"

In cases involving possible criminal misconduct, civilian members may need to be advised of similar rights under the Mi-

randa case and, if the member so requests, a union representative may be present. Any questions about the text of these

rights can be answered by your judge advocate.

**DUE PROCESS AND ACKNOWLEDGMENT OF RECEIPT**

Records of counseling must reflect that the member received the document and had an opportunity to respond. Each

such counseling should be annotated with "You may respond to this allegation" or with the more formal language allow-

ing 3 days (for active duty) or 45 days (for members not on orders) to respond for a formal LOC. Consider how you want

to deal with the member's right to respond. In informal mentoring situations, a discussion may be appropriate. However,

in more formal counseling, it may need to be a "one way conversation" with only the right to submit matters in writing.

A common problem arises in a written counseling when airmen or employees refuse to acknowledge the counseling by

their signature. When this occurs annotate that fact on the bottom of the form, date the form, and sign it. Failure to ac-

knowledge receipt of a document is rarely an independent basis for separate adverse action. Another solution is to have a

witness present who prepares a memo for the record (MFR) regarding the member's refusal to acknowledge receipt of

the written counseling. _See_ Section 24-5, _Letters of Admonition and Reprimand_ , for an example of LOC format that addresses these concerns.

Letters of counseling are not generally filed in UIFs, but a commander may do so in appropriate circumstances. They

should be kept in the member's personnel information file (PIF). Filing the LOC in a PIF is required when the subject is

an officer and the LOC is not filed in a UIF.

_**KWIK-NOTE: Document all counseling sessions.**_

**RELATED TOPICS:**

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**SECTION**

Advising Suspects of their Rights

8-9

Confessions

8-10

Commander's One-On-One Meeting With Members – Precautions

16-5

Employee Interrogation

5-3

Investigation by Commander of Suspected Minor Offenses

16-10

Letters of Admonition and Reprimand

24-5

Quality Force Management Actions

24-12

Unfavorable Information Files (UIFs) and Control Rosters

24-16

_**Air National Guard Commander's Legal Deskbook**_

856

_**Chapter 24, Quality Force Management**_

_**Section 24-8 Dropping ANG Officers From The Rolls Instead of Administrative Discharge**_

_**Page 1**_

**Dropping ANG Officers From the Rolls Instead of Administrative Discharge**

**Updated By Lt Col Beverly G. Schneider, October 2013**

**AUTHORITY:** 10 U.S.C. 12684; AFI 36-3209, _Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members_ , 14 April 2005, IC3, 20 September 2011.

**WHEN IT CAN BE DONE**

AFI 36-3209, para. 2.36.6, permits dropping an officer from the rolls (DFR) instead of administratively discharging the

officer in certain cases of a civilian or foreign court conviction. An officer found guilty by civilian authorities of any offense and sentenced to confinement in a federal or state confinement facility may be dropped from the rolls of the Air

Force. Limited by certain due process safeguards, an officer may be dropped from the rolls if convicted and confined by a

foreign court. Dropping an officer from the rolls terminates the officer's military status as of 2400 hours on the date specified in the orders.

**PROCEDURE**

When an officer is convicted and sentenced to prison by civil authorities, a unit commander will prepare and forward a

report to the discharge authority. The report must include: the offense(s) convicted, sentence received, the date of final

sentence, confinement location, text of the statute violated and its penalty, and a copy of the final judgment order. Upon

receipt of the report, the discharge authority determines whether to forward the case to the Air Force Personnel Council

for a decision to drop the officer from the rolls. If the discharge authority determines to forward the case, the following

actions must occur: notify the officer, allow time for officer to submit comments (usually 10 calendar days), forward case

(with proper documentation) to Air Force Personnel Council (through NGB A1PR, NGB/JA, and HQ USAF/JAG).

**DUE PROCESS REQUIREMENTS**

10 U.S.C. 12684 and AFI 36-3209 require little procedural due process in dropping a member from the rolls. Procedural

due process requires the member be notified of the proposed action and an opportunity to be heard. The administrative

discharge process provides a measure of due process, but the question remains whether the U.S. Constitution requires

additional procedural due process in dropping an officer from the rolls. Recommending a retirement-eligible member for

DFR may require some additional procedural due process. Such an officer may have a constitutionally-protected property

interest in retirement benefits, which would mandate procedural due process under the Fifth Amendment. However,

non-retirement-eligible officers have no such constitutionally-protected property interest and thus no right to procedural

due process under the Fifth Amendment. ( _See_ OpJAGAF 1989/86).

**DOCUMENT THE RECORD**

Because of the procedures required by AFI 36-3209 to drop an officer from the rolls and the potential due process issues,

a commander should immediately consult with the SJA in any case involving a possible dropping from the rolls action to

ensure the record submitted is properly documented and legally sufficient to support the final decision. ****

**BENEFITS/ENTITLEMENTS**

ARPC advises that the Adjutant General make a recommendation on the benefits/entitlements that the officer should

retain when dropped from the rolls. The Secretary of the Air Force makes the final decision regarding benefits.

**CONCLUSION**

Some _**Related Topics** _ may lead to ANG officers being dropped from the rolls. Some state laws have similar procedures.

_**Air National Guard Commander's Legal Deskbook**_

857

_**Chapter 24, Quality Force Management**_

_**Section 24-8 Dropping ANG Officers From The Rolls Instead of Administrative Discharge**_

_**Page 2**_

_**KWIK-NOTE: Officers may be dropped from the rolls instead of administratively discharged in cases of criminal confine-**_

_**ment.**_

**RELATED TOPICS:**

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**SECTION**

Administrative Discharge Of Officers

24-4

Arrest By Civilian Authorities

8-6

Federal Commission Status Withdrawal

1-17

Judicial Review Of Military Administrative Actions

18-5

Officer Evaluation System

1-23

Quality Force Management Actions

24-12

_**Air National Guard Commander's Legal Deskbook**_

858

_**Chapter 24, Quality Force Management**_

_**Section 24-9 ID Card Retrieval**_

_**Page 1**_

**ID Card Retrieval**

**Updated By Lt Col Beverly G. Schneider, October 2013**

**AUTHORITY:** 18 U.S.C. 499 and 701; AFI 36-3026, _Identification Cards for Members of the Uniformed Services, Their Eligible_ _Family Members, and Other Eligible Personnel_ (17 June 2009, page changes, 2 November 2009).

**REASONS TO RETRIEVE**

Identification cards are government property. The willful altering, damaging, lending, counterfeiting or using of any ID

card in any unauthorized manner is a federal crime, prosecutable by federal civilian authorities and punishable by a fine

or imprisonment or both. Such actions may also result in a military member being court-martialed or processed for ad-

ministrative separation. Any commissioned or noncommissioned officer or Security Forces member, in the performance

of duty, may confiscate any ID card that has expired, is being fraudulently used, or is being presented by a person not en-

titled to its use.

When a unit commander starts administrative or judicial action against a member that may result in a discharge, the

commander or a designee should retrieve ID cards from the member and the member's dependents. The commander

sends the retrieved ID cards by letter to the servicing FSS. The letter requests destruction of the cards. It also requests

that the member and dependents be issued ID cards to expire within 90 days after the administrative or judicial action

began.

The FSS must attempt to retrieve ID cards from persons no longer entitled to a dependent ID card. Such cases include

instances of divorce, marriage of a child, or college dis-enrollment of an eligible child. If the card cannot be retrieved voluntarily from the holder by letters from the sponsor, commander, or FSS, the case may be referred to Security Forces for

investigation. Such an investigation, however, should be closely coordinated with the staff judge advocate.

Certain categories of former dependents may be entitled to ID cards. These include victims of domestic violence perpe-

trated by the member and certain un-remarried spouses. Former spouses and unmarried parents of children of military

members may also request a base entry letter to exercise the military benefits of their children. Should any problem arise

in this area, coordinate with the staff judge advocate.

_**KWIK-NOTE: An ID card is federal government property and its possession and use are a PRIVILEGE. The ID card may be**_

_**confiscated and the user prosecuted for its improper use.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Criminal Investigations, Prosecutions and Reporting – DOD and DOJ

8-12

Fraud, Waste and Abuse

16-7

Preventive Law Program

17-15

_**Air National Guard Commander's Legal Deskbook**_

859

_**Chapter 24, Quality Force Management**_

_**Section 24-10 Mailing or Delivery - Affidavits or Certificates of Service**_

_**Page 1**_

**Mailing or Delivery - Affidavits and Certificates of Service**

**Updated By Lt Col Beverly G. Schneider, October 2013**

**AUTHORITY:** Applicable federal and state statutes and regulations. AFI 36-3209, _Separation and Retirement Procedures for_ _Air National Guard and Air Force Reserve Members_ (14 April 2005, IC 3, 20 September 2011), 28 USC §1746. 

## INTRODUCTION

Whenever a military-related document is mailed or personally delivered to a unit member and, by the nature of the docu-

ment, it is contemplated that at some future time it will be necessary to prove the document was mailed or delivered,

commanders should ensure that appropriate evidence of that mailing or delivery is completed and retained in the case

file. Normally, proof of mailing or delivery will need to be prepared and retained in adverse personnel actions. These in-

clude notices of administrative discharge actions, notices of unexcused absences from scheduled training, and other qual-

ity force management actions such as, administrative demotion, recall to active duty recommendations for unsatisfactory

Palace Chase participants, and nonjudicial punishment actions. Attachment 10 to AFI 36-3209 provides a format for a

sworn affidavit of service by mail that may be used in discharge cases. The availability of return receipt mailing allows

commanders to take discipline in cases where the member refuses to attend drill.

If the document itself provides a space for acknowledgment of its receipt and is personally delivered so that both the unit

and the member receive a signed and dated copy of the acknowledgment of receipt, then the affidavit or certificate of

mailing or delivery described in this topic need not be prepared. Make certain that the member signs. If the member re-

fuses to sign, have a witness sign and annotate the document to indicate that the member refused to sign. However,

where proof of mailing or delivery may be needed later, these affidavits or certificates should be prepared contemporane-

ously with the mailing or delivery and retained in the case file.

**AFFIDAVIT OR CERTIFICATE - MAILING OR DELIVERY**

Particular state or federal statutes or regulations may prescribe whether you should use an affidavit, which is a signed

and sworn (notarized) written statement, instead of merely a certificate, which is a signed certification that the act de-

scribed in the statement was done. Absent a statute or regulation prescribing an affidavit (which is always permissible),

commanders, in their discretion and after consultation with their staff judge advocate, may require only a certificate.

Lack of a notary public on base between scheduled training periods is a main reason for only requiring a certificate when

an affidavit is not required by statute or regulation. Generally, the modest investment required to have a full-time AGR

or technician certified as a state notary pays off many times over.

Note also that specific federal or state statutes or regulations may require that mailing be by certified mail rather than

regular mail. If you send a document by certified mail, always send it return receipt requested and retain the (white with

the green printing) certified mailing receipt. If the member has been picking up or claiming certified mail, send it RE-

STRICTED DELIVERY to the member only (you should also do this the first time you send the member certified mail).

If the member has not been picking up or claiming certified mail (where it has been returned by the U.S. Post Office UN-

CLAIMED), DO NOT send the certified mail Restricted Delivery. Restricted Delivery requires additional postage.

If you are not required to mail certified, usually you should not do so, as it is much more expensive and the return re-

ceipt requested green card may not be returned to you by the U.S. Post Office by the due date specified in the correspon-

dence. The action to be taken by the due date described in the correspondence must await your receipt of the green card

before it may begin. Note also that if you are permitted to send a document by regular mail, you may obtain a Proof of

Mailing from the U.S. Post Office, but this requires personal delivery to the Post Office and is usually unnecessary.

The attachments to this topic are sample forms to assist you.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 24, Quality Force Management**_

_**Section 24-10 Mailing or Delivery - Affidavits or Certificates of Service**_

_**Page 2**_

Attachment 1 is an Affidavit of Service by Mail;

Attachment 2 is an Affidavit of Service by Personal Delivery;

Attachment 3 is a Certificate of Service by Mail; and

Attachment 4 is a Certificate of Service by Personal Delivery.

They may be prepared on plain (not unit letterhead) paper. Attach the Affidavit or Certificate to the file copies of the correspondence to which it refers. Never send the Affidavit or Certificate to the recipient. You may wish to use these forms

and have them distributed to your subordinate commanders, first sergeants, and FSS for their use as necessary. Your staff

judge advocate can explain under what circumstances they are to be used and completed.

Also, in administrative matters under federal law or regulation (such as AFI 36-3209) one can use an "Unsworn Declara-

tion Under Penalty of Perjury," as provided for at 28 USC §1746. This is very useful but should only be used when a no-

tary public is not available. Sworn affidavits with a notary's signature are preferred.

_**KWIK-NOTE: Supplement this topic with applicable state law.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Letters of Admonition and Reprimand

24-5

Counseling

24-7

Administrative Demotion of Airmen

24-2

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Dropping ANG Officers from the Rolls

24-8

_**Air National Guard Commander's Legal Deskbook**_

861

_**Chapter 24, Quality Force Management**_

_**Section 24-10 Mailing or Delivery - Affidavits or Certificates of Service**_

_**Page 3**_

_Attachment 1_

**AFFIDAVIT OF SERVICE BY MAIL**

STATE OF ___________________________________ COUNTY OF ________________________________

(Name, Grade, SSAN), being duly sworn, states:

1. That (he or she) is a member of (Unit, Base, State, Zip Code).

2. That on the ________ day of _(month, _(year) in the performance of (his or her) official duties, (he or she) mailed an

original (letter, action, etc.) dated ____________________________, Subject: _____________________, to (Name, Grade,

SSAN, Address), by (regular mail), (certified mail, return receipt requested), (restricted delivery, if applicable): that being the last known address given by the member as the one at which mail would be received or forwarded to (him or

her). The letter was sent (with a postage and fees prepaid return addressed envelope, if applicable) inside a properly ad-

dressed, postage paid, sealed envelope by placing it in an official depository of the United States Postal Service.

__________(Signature)_________

Typed Name and Grade

Sworn and subscribed before me this _______ day of _____(month)____, _____(year)____

_______________________________

Notary Public (or person authorized to give oaths)

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 24, Quality Force Management**_

_**Section 24-10 Mailing or Delivery - Affidavits or Certificates of Service**_

_**Page 4**_

_Attachment 2_

**AFFIDAVIT OF SERVICE BY PERSONAL DELIVERY**

STATE OF ____________________________

COUNTY OF _________________________

(Name, Grade, SSAN), being duly sworn, states:

1. That (he or she) is a member of (Unit, Base, State, Zip Code).

2. That on the ________ day of ___(month)___, ___(year)___ in the performance of (his or her) official duties, (he or she)

personally delivered an original (letter, action, etc.) dated _________________, Subject: ______________________, to

(Name, Grade, SSAN, Address), by handing it to (him or her) at (time of delivery), at (place of delivery).

______(Signature)_______

Typed Name and Grade

Sworn and subscribed before me this _______ day of ____(month)___, ___(year)___

_____________________________

Notary Public (or person authorized to give oaths)

_**Air National Guard Commander's Legal Deskbook**_

863

_**Chapter 24, Quality Force Management**_

_**Section 24-10 Mailing or Delivery - Affidavits or Certificates of Service**_

_**Page 5**_

_Attachment 3_ ****

**CERTIFICATE OF SERVICE BY MAIL**

STATE OF __________________________

COUNTY OF _______________________

(Name, Grade, SSAN), hereby certifies as true and accurate:

1. That (he or she) is a member of (Unit, Base, State, Zip Code).

2. That on the ________ day of ___(month)___, ___(year)___ in the performance of (his or her) official duties, (he or she)

mailed an original (letter, action, etc.) dated ____________________, Subject: _____________________________, to (Name,

Grade, SSAN, Address), by (regular mail), (certified mail, return receipt requested), (restricted delivery, if applicable):

that being the last known address given by the member as the one at which mail would be received or forwarded to (him

or her). The letter was sent (with a postage and fees prepaid return addressed envelope, if applicable) inside a properly

addressed, postage paid, sealed envelope by placing it in an official depository of the United States Postal Service.

_______(Signature)_______

Typed Name and Grade

_**Air National Guard Commander's Legal Deskbook**_

864

_**Chapter 24, Quality Force Management**_

_**Section 24-10 Mailing or Delivery - Affidavits or Certificates of Service**_

_**Page 6**_

_Attachment 4_

**CERTIFICATE OF SERVICE BY PERSONAL DELIVERY**

STATE OF __________________________

COUNTY OF _______________________

(Name, Grade, SSAN), hereby certifies as true and accurate:

1. That (he or she) is a member of (Unit, Base, State, Zip Code).

2. That on the ________ day of ___(month)___, ___(year)___ in the performance of (his or her) official duties, (he or she)

personally delivered an original (letter, action, etc.) dated ____________________, Subject:

____________________________ to (Name, Grade, SSAN, Address), by handing it to (him or her) at (time of delivery), at

(place of delivery).

_______(Signature)________

Typed Name and Grade

_**Air National Guard Commander's Legal Deskbook**_

865

_**Chapter 24, Quality Force Management**_

_**Section 24-11 Nonjudicial Punishment**_

_**Page 1**_

**Nonjudicial Punishment**

**Updated By Lt Col Beverly G. Schneider, October 2013**

**AUTHORITY:** Applicable state law or regulation; UCMJ and AFI 51-202, _Nonjudicial Punishment_ (7 November 2003, IC3, 11 August 2011); TJAG ANG/JA _Memorandum on Delivery of Defense Services_ (24 Apr 2006) (applicable only when a member is in federal status). 

## INTRODUCTION

Nonjudicial punishment under Article 15 fills the gap between purely administrative measures, such as a letter of repri-

mand, and the formal judicial processes of a court-martial. AFI 51-202 only applies to Guardsmen in federal service,

while similar, but not identical, provisions of state law apply to Guardsmen in drill status. Your staff judge advocate will help you determine whether the facts of a case merit an Article 15 and will help you navigate any unusual provisions of

state law. States may vary as to the applicability and provisions of nonjudicial punishment in unexpected ways. As a prac-

tical matter, remember that by nonjudicial punishment, you offer a choice of forum, not a plea bargain. If the member

accepts nonjudicial punishment, the member still has the right to contest the charges informally and to have punishment

decided only after the member presents their side of the matter.

**GENERALLY**

Nonjudicial punishment is one of the commander's most valuable management tools for maintaining morale, discipline,

and efficiency within the command or unit. The primary goal of a nonjudicial punishment action is to address the com-

mission of a minor offense, and, if appropriate, rehabilitate the offender. As in all disciplinary cases, we recommend you

take the earliest action possible after the offense, consistent with the need to obtain complete and accurate information.

Commanders have nonjudicial punishment jurisdiction over all ANG personnel within their command, including AGRs.

Thus, an AGR member who commits an offense during the regular work week is subject to nonjudicial punishment un-

der the same procedures applicable to other ANG personnel during periods of AT or while in UTA status. Also, state law

may allow nonjudicial punishment of Title 32 military technicians or drill status (traditional) Guardsmen. While the fed-

eral UCMJ only applies in Title 10 status, many states have UCMJ-like provisions that apply at all times. Consult with

your SJA.

Any person may recommend imposing nonjudicial punishment to a commander authorized to impose punishment. Usu-

ally, the person making the recommendation may not recommend the type of punishment to be imposed. All nonjudicial

punishment actions should be in writing and should utilize approved formats under state regulation. For example, there

is usually a standard form letter of notification and requirement for certifying the mailing, delivery and receipt of nonjudicial punishment documents.

**THE NONJUDICIAL PUNISHMENT ACTION FROM COMMENCEMENT TO APPEAL**

First, nonjudicial punishment is a process and not a conclusion. Nonjudicial punishment exists to determine whether an

offense occurred and to impose remedial measures if the commander finds the member responsible. We rarely recom-

mend nonjudicial punishment for very minor first offenses. However, even minor incidents, such as failing to show up

for work on time, often repeated, may merit nonjudicial punishment.

Commanders do not have to address all known or suspected incidents of misconduct through nonjudicial punishment.

For instance, if a commander knows that a member went AWOL from annual tour and suspects he drove drunk down-

town but does not have sufficient facts to prove the drunk driving charge, the commander could offer nonjudicial punish-

ment on the AWOL charge and leave the drunk driving charge to civilian authorities. Generally, however, the commander

should consider all known incidents of misconduct and attempt to address them in a global solution.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 24, Quality Force Management**_

_**Section 24-11 Nonjudicial Punishment**_

_**Page 2**_

A commander should offer nonjudicial punishment only for "minor offenses." Commanders have broad discretion to de-

fine what constitutes a minor offense. However, in most cases, you should not offer nonjudicial punishment if the UCMJ

authorizes more than one year of confinement for the offense(s). To use an inexact, but useful, analogy, you should not

offer an Article 15 for what civilian authorities would consider a felony.

Commanders should strive to processes nonjudicial punishment/Article 15s in an expeditious matter. Delay can under-

mine the effectiveness of the nonjudicial punishment. State codes may require a certain format. If they do not, we recom-

mend using AF Form 3070, Record of Nonjudicial Punishment Proceedings, to initiate and process the action. While de-

signed for active duty use, this form will help you avoid mistakenly skipping some stage of the proceedings. The form

should include the charge(s).

Depending upon the state code, in general, the nonjudicial punishment process offers the accused member the opportu-

nity to meet with a military lawyer, to submit matters in mitigation, extenuation, or defense before a decision is made on

punishment. State codes also usually permit the accused member to have a personal appearance before the commander

and to have a public hearing, if desired. Consult with your SJA to determine who serves as defense counsel for your unit.

If the member submits matters to contest the Article 15, you should consider these matters and attach them to the re-

cord. You have the authority to decide whether you believe any matters submitted and whether they make a difference in

your decision. While an Article 15 does not have the same formality as a court proceeding, you should apply the "beyond

a reasonable doubt" standard of evidence to the proceeding. You should usually state that you have considered any mat-

ters submitted and the effect, if any, they made on your decision. This serves an important role in letting the member

know that you did not dismiss the matters out of hand and helps the appellate authority understand your reasoning.

Members often request a personal appearance before their commander. While you do not have to grant this request if

you find it impractical, you should generally allow the member to appear before you, as this maximizes the effectiveness

of the process. Guardsmen may also request a public hearing, although they rarely do so. Do not delay the action if the

accused member does not timely acknowledge receipt of the charges (notification of charges form or a letter of notifica-

tion); timely submit matters in mitigation, extenuation or defense in response to the charges; or timely appeal from im-

posing punishment. Failing to respond within the time limits acts as a waiver by the member, and the action may pro-

ceed without the member's response.

**PUNISHMENT ACTION**

Types of non-judicial punishments which may be imposed often include admonition, reprimand, reduction in grade, for-

feiture of pay, extra duties, restriction to certain specified limits, withholding of privileges, and, in limited circumstances, correctional confinement. Again, state law or regulations will govern. Check your state law to determine whether the

punishments of confinement, extra duties, or reduction in grade can be imposed nonjudicially upon officers or warrant

officers. Forfeiture of pay may be authorized for nonjudicial punishment under state law or regulation. Forfeitures may

sometimes be deposited in the unit's military fund, according to state law or regulation. Check whether only one type of

punishment may be imposed for any one nonjudicial punishment action and whether an authorized punishment may

also include an admonition or reprimand. Your SJA can advise you on what punishments are available for the situation.

Commanders often impose reductions in rank because of the difficulty in collecting forfeitures or administering other

types of punishment. Commanders may, in appropriate cases, suspend a reduction in rank, either for the first rank or for

a lower rank. For instance, in most cases, a commander could reduce a Senior Airman to Airman First Class outright, sus-

pend the reduction, or reduce the airman to A1C and further reduce the member to Airman, suspending only the second

reduction. This type of punishment enables you to distinguish among the various factors and circumstances surrounding

the member and the offense for which you imposed the nonjudicial punishment. It also allows you to keep the member

on a type of "probation" for a period of time (usually six months). However, it will also require you to maintain a higher degree of supervision over the member and, given the realities of part-time service, may not provide you enough time to

effectively evaluate the member. You should not suspend reductions as a matter of course, but rather use them only

when the specific circumstances make a suspended reduction appropriate.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 24, Quality Force Management**_

_**Section 24-11 Nonjudicial Punishment**_

_**Page 3**_

"Confinement" under Article 15 usually consists of up to 30 days of "correctional custody" or participation in the "re-

motivational program." These programs provide a forum for "re-bluing" troubled airmen, but very few bases have them.

Before attempting to impose this type of punishment, you will need to resolve numerous logistical issues, and we rarely

recommend it for that reason.

**RESTRICTIONS ON IMPOSITION OF PUNISHMENT**

Any commander in the organized militia usually may impose nonjudicial punishment. Usually, state law or regulation

will limit certain punishments to certain levels of command. For example, reductions in grades E-7 through E-9 may be

limited to senior commanders, and some wing or group commanders with nonjudicial punishment authority may choose

not to delegate this authority to subordinate commanders. State law also usually limits certain punishments to field

grade commanders. This becomes a particular issue for the Guard, with its more frequent assignment of captains as

squadron commanders.

If a subordinate commander lacks the authority to punish the member effectively because of these limitations, the subor-

dinate commander may recommend to the superior commander that the superior commander offer nonjudicial punish-

ment. The fact that the action is being sent to that commander for consideration also implicitly indicates that the subordi-

nate commander seeks a punishment beyond his or her authority to impose, without violating the rule that a person can-

not recommend a type of punishment. The superior commander may offer nonjudicial punishment, prefer charges, or oth-

erwise dispose of the charges as the superior commander deems fit.

**APPEALS**

Once punishment has been imposed, the member is given an opportunity to appeal. The appeal is usually taken to the

next higher authority, which may approve or reverse both the finding of responsibility and the punishment or may miti-

gate the punishment. The higher authority should impose no greater punishment than initially imposed. Usually, state

law or regulation will provide that the punishment comes into effect upon being imposed, whether the member appeals.

**POST-PUNISHMENT OPTIONS**

Once punishment is imposed, the commander or higher authority usually has the authority to suspend, mitigate, remit,

or set aside all or part of the punishment and to restore to the member all rights, privileges, and property affected, within certain time limits. Action to suspend, mitigate, or remit a punishment is usually taken when the commander or higher

authority believes the member is deserving of a second chance, following a probationary period during which the mem-

ber's conduct toward rehabilitation is observed.

**SPECIAL PROBLEMS**

_Demands for Trial._ Your state laws or regulations may give the member a right to demand a trial by court-martial at some point in the nonjudicial punishment process. If members have a right to demand a trial by court-martial in your state,

consult with your SJA and follow the applicable procedures if a member exercises that right. While additional facts may

merit reducing the charges to an administrative disposition, we should never be in a position where a member can effec-

tively "call our bluff" by declining nonjudicial punishment. The credibility of the military justice system rests on our willingness and ability to proceed to court-martial proceedings for members who refuse nonjudicial punishment.

A common problem is the lack of uniformity among commanders in either imposing or recommending nonjudicial pun-

ishment. This problem arises in several ways.

1. _Commanders have broad discretion_ in nonjudicial punishment, as it should be. However, justice demands that commanders within a unit show some uniformity in the types of punishments imposed for the same offense. The facts and circum-

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 24, Quality Force Management**_

_**Section 24-11 Nonjudicial Punishment**_

_**Page 4**_

stances of the offense and the record of the member may account for the differences in type of punishment imposed, but

if all members of one squadron who are AWOL from a weekend UTA routinely receive only a reprimand, while all mem-

bers of another squadron who commit the same offense routinely receive nonjudicial punishment with reduction in

grade, this disparity can reduce unit morale.

2. _If uniformity becomes an issue, superior commanders may wish to withhold authority_ from subordinate commanders to dispose of certain offenses or situations. For instance, if one squadron demotes and discharges airmen who repeatedly fail their

fitness test, while another squadron takes no action, the group commander should consider withholding authority to ad-

dress fitness failures from his subordinates. Superior commanders may also exercise this option selectively by withhold-

ing disciplinary authority from a particular commander or commanders. Withholding authority puts a higher burden on

the superior commander to monitor misconduct by subordinates. For instance, in the above situation, if the group com-

mander withholds authority to take action from the squadron commanders, he or she should also require the subordi-

nates to report monthly on their members who fail the test.

3. _Discharge versus Nonjudicial Punishment_. Sometimes an Article 15 in the Guard is described as a backhanded compliment, because it generally means we have decided not to discharge the individual. Nevertheless, nonjudicial punishment and

discharge are not mutually exclusive. However, we should seek to maintain uniformity within the same unit.

4. _Deployed Actions_. Guard commanders have an unfortunate reputation among active duty commanders for reversing Article 15 actions taken in the deployed environment. You should never reverse the actions of a deployed commander with-

out discussing the matter directly with that commander and considering all the evidence available to that commander.

Members who receive an Article 15 in the deployed environment have little incentive to portray all the facts accurately to

a commander who was not present for the misconduct.

Always consult your staff judge advocate before initiating nonjudicial punishment action to ensure the charges are sup-

ported by the evidence. Usually, the SJA also must review the completed action for legal sufficiency to ensure that both

the commander and the accused member are protected.

_**KWIK-NOTE: Timely and uniformly administer nonjudicial punishment pursuant to your state's regulations and develop**_

_**forms to do this.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Absent Military Members

1-2

Letters of Admonition and Reprimand

24-5

Advising Suspects of their Rights

8-9

Arrest By Civilian Authorities

8-6

Commander's One-On-One Meeting With Member - Precautions

16-5

Confessions

8-10

Courts-Martial

8-15

Evidence – Differing Standards and Burdens of Proof

8-4

Investigation by Commander of Suspected Minor Offense

16-10

Legal Assistance to Unit Members and the Role of the Judge Advocate to the Commander

17-9

Legal Reviews

17-11

Mailing or Delivery – Affidavits and Certificates of Service

24-10

Military Justice - Authorized Activities of ANG Judge Advocates In Non-federalized Status

17-12

OSI and SF Reports

8-14

Polygraphs (Lie Detectors) - Use in the Military

8-11

Selective Enforcement

24-14

Status of National Guard Members

11-7

Transfer to the Individual Ready Reserve (IRR)

1-37

_**Air National Guard Commander's Legal Deskbook**_

869

_**Chapter 24, Quality Force Management**_

_**Section 24-12 Quality Force Management Actions**_

_**Page 1**_

**Quality Force Management Actions**

**Updated By Lt Col Beverly G. Schneider, October 2013**

**AUTHORITY:** Too numerous to cite here, but see authorities cited in the " _AUTHORITY_ " sections of the topics listed under " _RELATED TOPICS_ " below. 

## INTRODUCTION

We define "Quality Force Management" as the whole toolkit that commanders may use to deal with administrative, per-

sonnel, and disciplinary problems presented by the action or inaction of their members. The other sections of this chap-

ter contain specific procedures for each action, which are listed in the Related Topics section of this topic. First, we will discuss general guidelines to use when taking these actions, and then we will list some quality force management actions

commanders can take.

**GUIDELINES FOR USE**

**All Actions**

Commanders should tailor their actions to both the member and the problem presented. Some actions work best in con-

junction with other tools, while others work best alone. To help you determine which actions are appropriately taken

alone or in combination and the personnel consequences of any action, consult your FSS Chief, staff judge advocate, and

other appropriate staff officers.

**Considerations in Deciding How to Dispose of a Case**

In every case, when considering appropriate disciplinary action, the commander should consider the nature of the of-

fense, the service record of the offender, the need for good order and discipline in the command, and the impact of the

member's conduct on society and upon any victims. The commander should also consider any actions s/he may have

taken in the past for similar misconduct by other airmen, and consider what actions other commanders have taken for

similar misconduct.

**Documentation**

Other commanders will probably have reason to review your actions. You can most effectively defend your decision by

providing your reasoning and adequate documentation. First, document the administrative and disciplinary measures

taken, either directly, where the action creates a paper trail itself, or through a memorandum for record. Second, docu-

ment your reasoning in taking action. Generally, the disciplinary process benefits from open discussion of the reasoning

behind an action. In the rare instances it does not, at least keep some record of the incident to remind yourself of your

reasoning. Remember, no action happens in a vacuum. If you do not properly document your actions, you may preclude

later, more serious actions, should they become necessary.

**Remain Objective**

Get all the facts and circumstances reasonably available before initiating action. Sometimes a completed investigation

will be enough (OSI, Security Forces, etc.), or the commander may appoint an Investigating or Inquiry Officer to gather

the facts. Carefully consider any information presented by the offender, and whether it changes your mind. If you lose

your objectivity, consult with another commander. In an extreme case, such as where you were the victim of the miscon-

duct, you should relinquish action to a higher commander, rather than taking it yourself, to avoid any taint of bias.

**Use Progressive Discipline**

In disciplinary actions, Air Force policy recommends a graduated response to a member's misconduct. For example,

when initial efforts, such as counseling, fail to get the member's attention for being late for work, you may want to use a

stronger measure, such as a letter of reprimand. However, do not take inappropriately light action when the facts merit a

serious response or a more thorough exploration of the facts. For instance, we would never recommend an Article 15 for

_**Air National Guard Commander's Legal Deskbook**_

870

_**Chapter 24, Quality Force Management**_

_**Section 24-12 Quality Force Management Actions**_

_**Page 2**_

a sexual assault. First, if the member committed the offense, the punishment would be too light. Second, the member

should have the formality of a court-martial to preserve his right to full defense.

**Consistency**

Maintain consistency in disciplinary actions among unit members with similar offenses and similar records. If you and

another commander at the same level treat similar offenses differently, consider meeting with the commander to discuss

his or her rationale. If you have subordinate commanders with differing disciplinary philosophies, encourage them to

share them and discuss how you view these offenses, without requiring them to agree with you. If the problem contin-

ues, consider withholding authority from subordinate commanders to preserve consistent discipline.

**Withholding Privileges**

Any time you take an action withholding some kind of privilege, provide a written notice and specify the reasons for your

action, the specific privilege being withheld, and the specific dates or duration the privilege will be withheld. Have the

action notice personally delivered or mailed to the member concerned and obtain the member's signed acknowledgment

of receipt of the notice. The notice should make clear your action is an order and that failure to obey it will result in

more serious action being taken. Commit yourself in advance to taking the steps necessary to back up your orders, or

you will risk losing your credibility and authority.

Remember, if you ask the member to acknowledge receipt of any writing and the member fails or refuses to do so, do not

argue the point. Prepare a memorandum for record (MFR) of the failure or refusal. The MFR will be proof enough, to-

gether with any affidavit or certificate of service by mail or personal delivery, that the member received the writing. As

long as you have this other evidence of mailing or delivery of the writing to the member, the lack of a signed acknowledg-

ment of receipt does not prevent the action from proceeding absent any timely response by the member, nor does it pre-

vent the effectiveness or enforceability of the action if the member later violates your direction contained in the writing.

However, failure or refusal to acknowledge receipt of a notice, standing alone, should not form the basis of separate disci-

plinary action.

**APPEAL - COMPLAINT OF WRONGS**

As many of these actions have no specific procedures for the member to appeal your action, the member's only recourse

to properly challenge the propriety of your action will be through a complaint of wrongs procedure, if any, under applica-

ble state law. You need not (and probably should not) advise the member of this complaint of wrongs procedure in your

writing advising the member of the action.

As most of these actions are exercised within your discretion as a commander, so long as you have a good reason for tak-

ing the action, and it is documented, only rarely will higher headquarters overturn your action, regardless of the proce-

dure permitting review. Realize you would not have been appointed as a commander unless you were trusted to exercise

good judgment. Your obligation to higher headquarters is to provide it with documentation of the facts supporting your

decision and your reasoning.

**KINDS OF ACTIONS**

Administrative

Counseling (oral or written)

Admonitions (oral or written)

Reprimands (oral or written)

Demotions

Flying Evaluations Board (rated officers only) Medical Evaluation Board (medical reasons only) Discharge

Dropping Officers from the Rolls instead of Discharge

Personnel

AFSC Reclassification

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 24, Quality Force Management**_

_**Section 24-12 Quality Force Management Actions**_

_**Page 3**_

Assignments

Barring Reenlistment / Extension

Base Driving Privileges (suspension)

BX Privileges Revocation - for instances of abuse

Check Cashing Privileges (revocation - for instances of abuse)

Commissary Privileges - for instances of abuse

ID Card retrieval

Medical Profile Change (for medical reasons only)

OPR Comment (Officers)

Palace Chase - Involuntary Call to Active Duty

Personnel Reliability Program (PRP) (action)

Personnel Security Access Program

Promotion Denial - Airmen and Officers

Reporting Identifiers

Security Clearance Revocation

Selective Retention action

Transfer to the Individual Ready Reserve (IRR) (failure to satisfactorily participate) Urinalysis testing

Weight Program entry

Withdrawal of Authority to Bear Firearms

Withdrawal of Credit for Attendance at Training (for being late or out of uniform)

Withdrawal of Federal Commissioned Status (Officers)

Nonjudicial Punishment / Court-martial

**CONCLUSION**

Some quality force management actions available can be used generally; others can be used only in specific situations.

_**KWIK-NOTE: Know the quality force management actions available to you, and use them appropriately and wisely.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Administrative Demotion of Airmen

24-2

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

AFSC Reclassification and Training

1-3

Barring Reenlistment

24-6

Counseling

24-7

Courts-Martial

8-15

ID Card Retrieval

24-9

Worldwide Duty Medical Evaluations

19-12

Medical Evaluation (Profile Change)

19-11

Nonjudicial Punishment

24-11

Personnel Security Access Program

1-28

Promotion of ANG Airmen

1-30

Promotion of ANG Officers

1-31

Reporting Identifiers

1-34

Revocation of Security Clearance

24-13

Selective Retention in the Air National Guard

1-36

Suspension of Base Driving Privileges

21-7

Transfer to the Individual Ready Reserve (IRR)

1-37

Unsatisfactory Participation

1-40

_**Air National Guard Commander's Legal Deskbook**_

872

_**Chapter 24, Quality Force Management**_

_**Section 24-13 Revocation of Security Clearance**_

_**Page 1**_

**Revocation of Security Clearance**

**Updated By Lt Col Beverly G. Schneider, October 2013**

**AUTHORITY:** AFI 31-501, _Personnel Security Program Management_ (27 January 2005, IC 2, 29 November 2012,

AGFM2013-02, 29 April 2013); DOD 5200.2-R, _Personnel Security Program_ (January 1987); DoDD 5200.2, _DoD Personnel_ _Security Program_ , (9 April 1999). 

## INTRODUCTION

When a commander receives information that a member of the unit has committed a serious offense or a breach of secu-

rity, or has behaved in a manner that indicates the member is a security risk, that commander must determine whether

to recommend removing that member's security clearance.

**STARTING THE REMOVAL PROCESS**

The establishment of a Security Information File (SIF) serves as a starting point for removing a security clearance. A SIF

documents the information showing that granting the security clearance eligibility to an individual or continuing an indi-

vidual's existing security clearance eligibility may not be in the best interests of national security.

The commander establishes a SIF when an individual's activity, conduct or behavior raises concerns about the appropri-

ateness of continued access to classified information. The security criteria specified in DOD 5200.2-R, para C2.2 and Ap-

pendix 8, and AFI 51-301 8.2.1.3, list types of information that raise such concerns, including, but not limited to:

1. Refusal to sign a required Standard Form 312 or other nondisclosure agreement;

2. Refusal or intentional failure to provide the personnel security questionnaire information required for an investigation

or periodic reinvestigation or failure to sign the required release statements for review of medical, financial, or employ-

ment records;

3. Refusal to be interviewed in connection with a personnel security investigation;

4. Incidents of theft, embezzlement, domestic abuse, unauthorized sale or use of firearms, explosives or dangerous weap-

ons, or misuse or improper disposition of government property, or other unlawful activities;

5. Permanent decertification from the PRP for other than physical reasons; and

6. Any information establishing a concern the member may have an increased risk of disclosing classified information.

Upon establishment of a SIF, the commander determines whether to initiate suspension action for the individual's access

to classified information and/or suspension of unescorted entry to restricted areas. If criminal activity is involved, the

matter should be investigated by Security Forces or AFOSI. If the commander also wants to suspend a member's access

to classified information and restricted areas, the commander notifies the individual and provides an information copy to

497 Intelligence Group/INS, Bolling AFB, D.C. In the completed SIF, the commander includes a recommendation on

whether to grant, reinstate, deny, or revoke the member's security clearance and the rationale for the recommendation.

Final determinations related to security clearances are made by the Air Force Central Adjudication Facility (AFCAF).

**DECIDE IF OTHER ADVERSE ACTION IS APPROPRIATE**

Frequently, the same misconduct that gives rise to establishment of a SIF can be the basis for separate administrative or

punitive action. For example, falsifying a travel voucher would justify a SIF because it involves fraud. However, it may

_**Air National Guard Commander's Legal Deskbook**_

873

_**Chapter 24, Quality Force Management**_

_**Section 24-13 Revocation of Security Clearance**_

_**Page 2**_

also justify court-martial, nonjudicial punishment, or administrative discharge. In such cases, AFCAF will ordinarily

await the outcome of such other action before rendering a decision on the member's security clearance, as a discharge

would render any decision related to the security clearance irrelevant. Other punitive or administrative actions should

not be delayed pending a resolution on the security clearance issue. However, if the member has had special access to in-

formation, actions should not proceed without the approval of the affected special access granting authority. Remember,

revocation of a security clearance is not a disciplinary action and is not a substitute for appropriate disciplinary action by the commander.

If other adverse action leading to discharge is not warranted, and AFCAF recommends discharge in the interests of na-

tional security, the member may be processed for administrative discharge under AFI 36-3209, paragraph 3.22.

**OBTAINING CLEARANCE TO PROCEED WITH DISCIPLINARY ACTION IN CERTAIN CASES**

Individuals with certain special security clearances have a greater potential to harm the national security of the United

States and thus, commanders must request clearance before proceeding with certain actions. Before proceeding to court-

martial, administrative discharge, or civilian removal of an individual with access to Single Integrated Operational Plan-

Extremely Sensitive Information (SIOP-ESI), SCI, research and development (R&D) special access program, AFOSI spe-

cial access program, or other special access program information, the commander must request approval to proceed from

the appropriate program office. This does not preclude the commander from immediately suspending access and gener-

ally does not preclude the disposition requested by the commander. Planning ahead will minimize the time delay associ-

ated with this request for clearance.

**PRACTICAL TIP**

As always, documentation and proper planning will help immeasurably. Consulting with the SJA can speed the process

along by coordinating the various actions necessary to bring the action to completion.

_**KWIK-NOTE: Properly document your decisions in revocation of security clearance cases.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Classified Material

14-4

Evidence - Differing Standards and Burdens of Proof

8-4 I

D Card Retrieval

24-9

Judicial Review of Military Administrative Actions

18-5

Legal Reviews

17-11

National Security Cases

1-21

Personnel Security Access Program

1-28

Quality Force Management Actions

24-12

Selective Enforcement

24-14

_**Air National Guard Commander's Legal Deskbook**_

874

_**Chapter 24, Quality Force Management**_

_**Section 24-14 Selective Enforcement**_

_**Page 1**_

**Selective Enforcement**

**Updated By Lt Col Beverly G. Schneider, October 2013**

**AUTHORITY:** AFI 51-201, _Administration of Military Justice_ (6 June 2013) (applicable to ANG only when in federal status); applicable state law. 

## INTRODUCTION

Commanders must impartially and uniformly administer military justice actions and adverse administrative actions, and

ensure compliance with and enforcement of all regulations governing the members of their unit. The prohibition against

selective enforcement is not meant to inhibit exercising your command discretion under the regulations or as a matter of

policy, but often there exists a fine line between command discretion and selective enforcement of law and regulations.

**HOW THE PROBLEM ARISES**

Commanders are responsible for enforcing the requirements of all regulations upon unit members evenhandedly, regard-

less of rank, sex, race, religious belief, national origin, full-time or part-time status, or friendship or lack thereof. The perception that the commander is not impartial, is favoring some, or imposing harsher measures on others without a legiti-

mate reason, undermines command authority.

The problem of selective enforcement arises most often when regulatory requirements are imposed on some members

and not on others. A common example is enforcement of fitness program under AFI 36-2905. For a variety of reasons,

commanders sometimes strictly enforce the program against some unit members and not at all against others. Given the

nature of the program, the whole unit sees the lack of consistency. The consequences include reversal of administrative

actions on appeal to a superior authority and dissension within the ranks, which may adversely impact morale and good

order and discipline.

**HOW TO PREVENT THE PROBLEM**

Sunlight is the best "disinfectant." To the extent permissible by privacy concerns, the commander should make the facts

supporting his or her decisions clear, along with his or her reasoning. For instance, if a Guardsman receives an Article 15

for unexcused absences, and the unit knows that the member has been absent, the commander may want to impose a

reduction in rank (if all facts warrant it) to show such conduct is taken seriously. To give another example, while the Air

National Guard does not consider the Fitness Program punitive, Guardsmen should witness the consequences of failure.

This may include announcing remedial fitness session during drill or gathering other unit members at the end of the run

course to cheer on the people re-testing. As a general rule, the more well known the commander's policies are, and the

more public the commander's reasoning, the better.

_**KWIK-NOTE: Enforce all statutes and regulations fairly and uniformly among all members of your unit.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Administrative Demotion of Airmen

24-2

Administrative Discharge of Enlisted Personnel

24-3

Administrative Discharge of Officers

24-4

Letters of Counseling, Admonition and Reprimand

24-5

Affirmative Action

9-2

Alcohol Abuse

10-3

Arrest by Civilian Authorities

8-6

Barring Reenlistment

24-6

_**Air National Guard Commander's Legal Deskbook**_

875

_**Chapter 24, Quality Force Management**_

_**Section 24-15 Air National Guard Fitness Program**_

_**Page 1**_

**Air National Guard Fitness Program**

**Updated By Lt Col Beverly G. Schneider, June 2014**

**AUTHORITY** : AFI 36-2905, _Fitness Program_ (21 October 2013, Corrective Actions Applied on 29 October 2013).

**PURPOSE**

In 2010 and 2011, the Air Force/Air National Guard Fitness Instruction was substantially modified, and it continues to

have additional changes every year. In the AFI, the Commander's Intent reads: "It is every Airman's responsibility to

maintain the standards set forth in this AFI 365 days a year. Being physically fit allows you to properly support the Air

Force mission. The goal of the Fitness Program (FP) is to motivate all members to participate in a year-round physical

conditioning program that emphasizes total fitness, to include proper aerobic conditioning, strength/flexibility training,

and healthy eating. Health benefits from an active lifestyle will increase productivity, optimize health, and decrease absenteeism while maintaining a higher level of readiness.

Commanders and supervisors must incorporate fitness into the AF culture establishing an environment for members to

maintain physical fitness and health to meet expeditionary mission requirements. The Fitness Assessment (FA) provides

commanders with a tool to assist in the determination of overall fitness of their military personnel. Commander-driven

physical fitness training is the backbone of the AF physical fitness program and an integral part of mission requirements.

The program promotes aerobic and muscular fitness, flexibility, and optimal body composition of each member in the

unit."

**THE FITNESS PROGRAM**

Air National Guard members (Title 32) must conduct a Fitness Assessment (FA) at least once every 12 months to en-

sure compliance with physical fitness standards. The FA consists of a combination of push-ups, sit-ups, a 1.5 mile run,

and a waist measurement. These measurements correlate better with performance and long term health than the earlier

measurements. The program includes testing, improvement measures, and provisions for administrative discipline for

repeated failures.

**TESTING**

The Fitness Program requires testing of ANG members at least once every 12 months. There are four fitness categories:

Excellent (≥ 90 and all component minimums met); Satisfactory (75 – 89.99 and all component minimums met); Unsat-

isfactory (< 75 and/or one or more component minimums not met); and Exempt (all four components exempted). ANG

members who receive an Unsatisfactory score must retest within 180 days following the unsatisfactory score. Command-

ers may not mandate members retest any sooner than the end of the 180-day reconditioning period, but a member may

volunteer to do so. Members who have physical limitations that prevent them from performing parts of the test may re-

ceive alternative testing for the run or exemptions from the push up and sit-up measurements. Scores are scaled to com-

pensate for the exempt station. Scores are input into the Air Force Fitness Management System (AFFMS) within five

duty days of testing.

**FITNESS IMPROVEMENT**

Members who fall into the Unsatisfactory category must start the BE WELL Program within 10 days of the failed FA; the

BE WELL Program is available on-line via ADLS. The BE WELL Program must be completed within 60 days of the Unsat-

isfactory FA. ANG members at collocated Air Force Bases may participate in a BE WELL program that involves in-person

attendance if HAWC space allows. Commanders may direct unofficial practice tests to afford members regular opportuni-

ties to assess their compliance with AF fitness standards. ****

_**Air National Guard Commander's Legal Deskbook**_

876

_**Chapter 24, Quality Force Management**_

_**Section 24-15 Air National Guard Fitness Program**_

_**Page 2**_

**COMMANDER ISSUES**

Commanders may not impose an Article 15/nonjudicial punishment solely for failing to achieve a Satisfactory FA. See

Attachment 14 of AFI 36-2905 for a table of authorized administrative and personnel actions for failing to attain physical

fitness standards. Commanders should consult with their SJA to determine appropriate levels of action depending upon

the number of failures. If commanders choose not to take adverse action in response to an Unsatisfactory FA, the com-

mander will document in the member's fitness file as why no action is being taken.

Members are expected to be in compliance with AF fitness standards at all times and knowing the time frame in which

his/her FA is required. Commanders may take corrective action for failure to follow orders when a member fails to ac-

complish a scheduled FA, fails to attend a scheduled fitness appointment, or fails to complete mandatory educational in-

tervention.

When an Airman receives four Unsatisfactory FA scores within a 24-month period and a medical records review has

ruled out medical conditions precluding a passing score, a commander must make a discharge or retention recommenda-

tion to the separation authority (enlisted Airmen) or a show cause authority (officers). The 24-month period for

discharge/retention recommendation is calculated from the most recent Unsatisfactory FA and is measured in months,

including the month of the most recent failure. A recommendation for discharge or retention will be made regardless of a

member's achieving one or multiple passing FA's in between the four failures.

Commanders may initiate (enlisted) or recommend (officers) administrative discharge only after the member has: re-

ceived four Unsatisfactory FA scores in a 24-month period; failed to demonstrate significant improvement (as deter-

mined by the commander) despite the reconditioning period; and a military medical provider has reviewed the member's

medical records to rule out medical conditions precluding the member from achieving a passing score.

Commanders may only grant exemptions from FAs, composite or component, in accordance with AFI 36-2905. Com-

manders may exempt members who are on terminal leave/PTDY in conjunction with retirement/separation, incarcera-

tion, or on appellate leave or excess leave pending separation, or have an approved retirement date (for ANG Drill Status

Guard members).

Consistency of discipline has arisen as a major challenge to the program. Superior commanders may withhold subordi-

nate commanders' authority to issue discipline for fitness failures in favor of taking direct action themselves. Failing to

enforce fitness standards provides the Air Force with substandard personnel assets for deployment, endangers the mem-

ber's health, and cheats members who take the effort to maintain their fitness.

_**KWIK-NOTE: ANG members must ensure they are physically prepared to support all military operations, exercises, or other**_

_**contingencies. Commanders bear a special responsibility to enforce these standards.**_

**RELATED TOPICS:**

****

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****

****

****

****

****

****

****

****

**SECTION**

Quality Force Management

24-12

_****_

_**Air National Guard Commander's Legal Deskbook**_

877

_**Chapter 24, Quality Force Management**_

_**Section 24-16 Unfavorable Information Files and Control Rosters**_

_**Page 1**_

**Unfavorable Information Files and Control Rosters**

**By Col Marshall L. Wilde, January 2015**

**AUTHORITY:** AFI 36-2907, _Unfavorable Information File (UIF) Program_ (26 November 2014). 

## INTRODUCTION

Unfavorable information files (UIFs) and control rosters came to the Air National Guard in the most recent revision of

AFI 36-2907.

**WHAT IS A UIF?**

A UIF is a record of administrative, judicial, or non-judicial censures concerning the member's performance, responsibil-

ity, and behavior. It consists of an Air Force Form 1058, _Unfavorable Information File Actions_ , and an Air Force Form 1137, _Unfavorable Information Summary_ , along with the substantive documents that describe the misconduct or performance

problems. Some of these documents must be filed in the UIF, such as Article 15s, while others are optional, such as let-

ters of counseling.

**ADMINISTERING UIFs**

UIFs are initiated by commanders and primarily administered by the force support squadron. Some documents are re-

quired to be filed in a UIF ( _i.e.,_ Article 15, a civilian conviction, a court-martial conviction, or an LOR (for officers only)).

A commander may also decide to file optional documents, such as an LOA, LOC, or LOR (enlisted) in a UIF. Before op-

tional documents are filed in a UIF, the member must be served with an Air Force Form 1058 and given the opportunity

to respond. Members on full-time duty must be given 3 duty days (current date plus 3 duty days) to acknowledge the in-

tended actions and provide pertinent information before the commander makes the final decision on placing the optional

documents in the UIF. Traditional drill status Guardsman who depart the duty area prior to the 3 duty days allowed for

acknowledging intended actions, must be given 45 calendar days from the date of receipt of the letter to respond.

The UIF program is under the supervision of the wing commander, through the UIF monitor. The UIF will contain cer-

tain documents for certain lengths of time, depending on their nature, ranging from 6 months to 4 years. Commanders

may generally remove documents early with certain limitations.

A UIF does not, in itself, mandate particular negative consequences for the member. If the commander approves, the

member may go to training, PCS, and complete other administrative actions. UIFs involving certain senior officers and

statutory tour members may require additional notifications.

**ACCESS AND REVIEW**

Besides the commander, only certain individuals should have access to UIFs:

1. The member,

2. First sergeants,

3. Rating officials when preparing to write or endorse a performance report,

4. The senior AF officer or commander of an Air Force element in a joint command,

5. AF element section commander in a joint command, and

6. Support staff who are authorized by the commander to review the document in the course of their official duties ( _i.e.,_ FSS personnel, IG personnel, inspection team members, legal office personnel, law enforcement personnel, MEO personnel and substance abuse counselors).

_**Air National Guard Commander's Legal Deskbook**_

878

_**Chapter 24, Quality Force Management**_

_**Section 24-16 Unfavorable Information Files and Control Rosters**_

_**Page 2**_

All UIFs require periodic review to ensure the documents are properly maintained in the UIF. A unit commander must

review all UIFs within 90 days of assuming or being appointed to command; annually with the SJA, and whenever indi-

viduals are being considered for promotion, reenlistment, PCS, PRP duties, retraining, in-residence developmental educa-

tion, and statutory tours. UIFs must also be reviewed before completing performance reports such as EPRs and OPRs.

****

**WHAT IS A CONTROL ROSTER?**

****

The control roster is a rehabilitative tool for commanders to use. Commanders use the control roster to establish a 6 to

12 month observation period for individuals whose duty performance is substandard or who fail to meet or maintain Air

Force standards of conduct, bearing, and integrity, on or off-duty. The default duration for a control roster is 6 months,

which the adjutant general may extend to 12 months, if deemed appropriate.

****

**ADMINISTERING CONTROL ROSTERS**

****

Like most other disciplinary actions, the member has the right to notice of the control roster action, as well as the right

to respond. As with UIFs, the member receiving a control roster notification on an Air Force Form 1058 has 3 duty days

(EAD) or 45 calendar days (non-EAD) to respond to the notification. Non-EAD members may receive notification by cer-

tified mail. Removal from the control roster occurs through the passage of time or the action of the imposing com-

mander (or superior commander) in choosing to terminate the control roster for the member.

Control roster actions have substantial negative consequences for the member. A member on a control roster may not

attend formal training. The commander may direct an OPR or EPR prior to entering or removing a member from a con-

trol roster. Commanders should periodically counsel members on the control roster on their improvement or failure to

improve. In general, consider a period of time on a control roster as an effort to save a member who is going in the

wrong direction, but does not yet merit discharge. However, if the member merits discharge, but has motivation to re-

cover, a commander may consider a discharge action with probation and rehabilitation instead.

****

_**KWIK-NOTE: A UIF is the formal file containing negative information regarding a member. A control roster action is a**_

_**means of formally monitoring a member for a period of time to ensure improvement.**_ ****

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Advising Suspects of their Rights

8-9

Commander's One-On-One Meeting With Members – Precautions

16-5

Confessions

8-10

Employee Interrogation

5-3

Investigation by Commander of Suspected Minor Offenses

16-10

Letters of Admonition and Reprimand

24-5

Counseling

24-7

Quality Force Management Actions

24-12

_**Air National Guard Commander's Legal Deskbook**_

879

**Chapter 25, Resources**

**Table of Contents**

**Section**

25 - 1 Table of Contents

25 - 2 Airport Joint Use Agreements

25 - 3 Alert Resource Management

25 - 4 Anti-Terrorist Matters

25 - 5 Architect and Engineering Services

25 - 6 Computer Acquisition and Security

25 - 7 Air National Guard Construction

25 - 8 Contracting Pitfalls

25 - 9 ANG Facilities

25 - 10 Federal Government Property Furnished to the ANG

25 - 11 Fire Protection Jurisdiction

25 - 12 Installations Jointly or Solely Occupied by the ANG

25 - 13 Issue Items and Equipment Turn-In

25 - 14 Loan of Air Force Equipment

25 - 15 National Defense Area

25 - 16 Quarters

25 - 17 Real Property - Acquisition and Retention

25 - 18 Reciprocal Fire Protection

25 - 19 Reports of Survey

25 - 20 United States Property and Fiscal Officer (USPFO)

25 - 21 Utilities

25 - 22 Cooperative Agreements

25 - G1 Glossary of Construction Terms

25 - G2 Glossary of Procurement Terms

25 - G3 Glossary of Report of Survey Terms

_**Air National Guard Commander's Legal Deskbook**_

880

_**Chapter 25, Resources**_

_**Section 25-2 Airport Joint Use Agreements**_

_**Page 1**_

**Airport Joint Use Agreements**

**Updated by Colonel Mary A. Enges, February 2018**

**AUTHORITY:** ANGPAM 32-1001, _Airport Joint Use Agreements For Military Use Of Civilian Airfields_ (8 Apr 03, certified current 02 Aug 13); 49 U.S.C. 47101, _et. seq_., " _Airport Development;_ " applicable state law and regulations. 

## INTRODUCTION

Many ANG flying units operate on civilian public airports. In most cases, a fee is paid to the airport's controlling author-

ity for the ANG's use of airport joint use facilities (taxiways, runways, etc.). An Airport Joint Use Agreement (AJUA) is

the legal instrument that establishes the payment of such fees and other terms and conditions relative to the ANG's use

of the airport facilities. The cited authorities provide guidance for negotiating fair and reasonable charges to the ANG for joint use of the flying facilities at public airports, as well as local operations agreements, long-term leases and applicable responsibilities.

AJUAs reduce the tension and confusion that may result from ANG operations at a civilian airport by clearly setting forth

the terms and conditions of the ANG unit's use of the facilities. The more specific these terms, conditions, and responsi-

bilities, the better the relationship between the unit and the airport.

An AJUA is, in legal terms, a license granted by the civil airport for the ANG unit's use of real property (the joint use facilities) in exchange for the fees paid.

**LEGAL RELATIONSHIPS**

**** Civil airports receiving funds from the Federal Aviation Administration under the Airport Development Grant Program

(Title 49 U.S.C. 47101, _et seq._ ) incur obligations to the United States Government. Among these is a requirement that airport facilities developed with financial assistance from the United States Government and airport facilities usable for

the landing and taking off of aircraft, must be available without charge for use by government aircraft, unless the use is

substantial. When the use of civil airport facilities by United States aircraft is substantial, the government may be

charged a fee, proportionate to its use, of the costs of operating and maintaining the facility used. The costs of operating terminals, parking, etc., may not be included in that charge. In some cases, if the civil airport was not constructed

through an FAA grant, the amount of the use charge is arrived at by negotiation and is not limited by the provisions of

Title 49.

ANGPAM 32-1001 governs AJUAs and provides a standard form agreement (Attachment 2 to the Instruction). Para-

graph 1.3 of that instruction indicates the payment reimburses the airport for a "reasonable share, proportionate to the

total military use (assigned and transient), of the cost of operating and maintaining the facilities used." Paragraph 4.2

states the AJUA fee is determined by multiplying the airport's operations and maintenance costs for the jointly used ar-

eas by the percentage of military operations, and subtracting appropriate credits for military-provided services. Attach-

ment 3 is a guide to calculating allowable costs, which can be complex.

The fees paid by the ANG for use of the civil airport may be affected by agreements between the ANG and the airport re-

lating to other services and facilities specifically and solely for the benefit of the military (fire-fighting capabilities, hush houses, etc). In addition, construction necessary for military flight operations (barriers, extended or strengthened runways, etc.) on airport property may be necessary. These areas must be addressed through separate agreements. Note that

fire protection under a mutual aid agreement will not be a part of the cost calculation and the final agreement will only

make reference to the mutual aid agreement.

_**Air National Guard Commander's Legal Deskbook**_

881

_**Chapter 25, Resources**_

_**Section 25-2 Airport Joint Use Agreement**_

_**Page 2**_

**NEGOTIATING AJUAs**

ANGPAM 32-1001, paragraph 2.3, states that the Air National Guard directorate (ANG/CE), in coordination with the

ANG senior commander or designee and other personnel as designated by the Adjutant General will be responsible for

negotiating airport joint use agreements. Paragraph 3.1 further provides that ANG/CE may initiate renewal negotiations

with airport owner/operators one year before the expiration of the existing AJUA. It is imperative for the local com-

mander to begin working with ANG/CE early in the renewal process. Additionally, the local commander and state Adju-

tant General should keep informed of negotiations and provide input as to their needs. Such communication cannot be

expected to occur automatically. Every effort must be put forward by each player to arrive at a successful agreement. The

commander must be proactive in the negotiation of an agreement.

In this respect, the commanders of units going through a re-negotiation process should consult with their own civil engi-

neers and staff to ensure nagging difficulties can be addressed in negotiations. Commanders should also have their Judge

Advocates review all drafts of the AJUA. Ultimately, the AJUA must be approved in writing by the Deputy Assistant Sec-

retary of the Air Force Installations (SAF/IEI) before its execution by the parties. The request for such approval must be

submitted to SAF/IEI through the Secretary of the Air Force Office of General Counsel (SAF/GCN) as the coordinating

office on negotiated agreements.

One of the most important aspects of AJUAs is the amount paid by the government for the ANG's use of the property.

This will be determined by the proportionate use of the common use areas of the airport. Proportionate use will be estab-

lished through a tower count of military and civilian aircraft flying operations for an entire fiscal year or calendar year.

Additionally, proportionate use by the ANG will be offset by any significant contributions provided in kind, to include

services, major equipment and construction, toward joint use operations by the ANG. Therefore, if Air National Guard

units are equipped and capable of providing services to the airport which otherwise would be expensive or difficult to pro-

cure, these services may become the subject of negotiation in reducing net costs to the government. Examples are the

capacity to lift or tow aircraft, assist in fire protection and suppression and provide other services for emergency matters.

Commanders should be aware that in heavily populated urban areas, airport authorities may hungrily eye every available

square foot of airport land as potentially revenue producing. Likewise, if the government needs additional facilities to im-

prove its readiness, the joint use of those facilities (such as an extended runway, or hush house) may make the ANG unit

a more attractive joint user to the airport authority. Negotiations with the airport manager or commission will be reflec-

tive of the day-to-day relationship of the parties.

Commanders who become aware of: proposals for the sharing of services and activities by the unit and the airport; the

need to construct additional facilities for readiness; or plans for expansion that may impact unit operations, should in-

form the USPFO and ANG/CE to coordinate with those offices on questions relating to airport operations.

The Staff Judge Advocate should be familiar with the terms and conditions of the AJUA and any related cooperative agree-

ments and should be informed of any issues concerning relations with the airport and any proposals that would impact

that relationship.

**UPDATES**

Although it can be expected the ANG/CE will keep track of approaching termination dates of Airport Joint Use Agree-

ments, installation commanders should be aware of these dates. A close understanding of the nature and extent of the

Agreement will pay dividends to the Guard and the Air Force.

Day-to-day questions regarding Guard - Airport Authority relations typically extend well beyond the subject matter con-

tained in the Airport Joint Use Agreement. The Agreement cannot possibly address all the problems that arise between

such entities. Careful attention to a "good neighbor policy" in these situations can make a substantial difference in the

style and atmosphere that exists when the Agreement comes up for re-negotiation.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 25, Resources**_

_**Section 25-2 Airport Joint Use Agreements**_

_**Page 3**_

_**KWIK-NOTE: Every installation commander should have a copy of the applicable Airport Joint Use Agreement for the base,**_

_**suspense it at least one year before its termination date and provide input for modifications (with substantiation), to ANG/**_

_**CE through the state Adjutant General for the upcoming re-negotiation process. ANG/CE tracks many AJUAs - the com-**_

_**mander only one. Many Air National Guard units operate on public airports. The terms and conditions of every agreement**_

_**are directly affected by current climate - don't expect an automatic renewal of the terms of the existing AJUA. Some units**_

_**enjoy free land and support services. Others find themselves occupying land that the airport authority would now like to con-**_

_**trol, and the pressure on the unit becomes great.**_

**RELATED TOPICS:**

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**SECTION**

Jurisdiction

2-5

Air Base Security Guards

3-3

Aid to Civilian Authorities

6-2

Air Traffic Control

13-3

Ambulance Response Off-Base

19-3

Federal Government Property Furnished to the ANG

25-10

Fire Protection Jurisdiction

25-11

Reciprocal Fire Protection

25-18

Utilities

25-21

Training

26-2

_**Air National Guard Commander's Legal Deskbook**_

883

_**Chapter 25, Resources**_

_**Section 25-3 Alert Resource Management**_

_**Page 1**_

**Alert Resource Management**

**Updated by Colonel Mary A. Enges, February 2018**

**AUTHORITY:** ANGI 10-203, _ANG Alert Resource Management_ (22 Feb 12); ANGI 36-2001, _Management of Training and Operational Support within the ANG_ (19 Oct 09, _certified current_ 28 Apr 14). 

## INTRODUCTION

Certain ANG units are designated to assume a continuous and uninterrupted strategic alert posture. These forces per-

form non-contingency alert missions in support of air sovereignty, aerial refueling, search and rescue, and airlift mis-

sions. They also perform alert missions for contingency missions. Location, aircraft number and type and mission pa-

rameters are established by the MAJCOMs in coordination with NGB.

ANG aircrew and ground support personnel can perform non-contingency alert duty in Title 32 Full-Time National

Guard Duty-Operational Support (FTNGD-OS), Title 32 Active Guard/Reserve (AGR) and Title 10. Notably, Title 32

AGR members may perform alert duties if the performance of such duty does not interfere with their purpose for organiz-

ing, administering, recruiting, instructing or training the reserve component.

Authority has been delegated to the various states to order volunteer ANG members to active duty in support of alert

missions under the authority of 10 U.S.C. 12301(d). AGR personnel performing duty under 32 U.S.C. 502(f) will auto-

matically convert to Title 10, if a specific Title 10 trigger is included in higher headquarters guidance. Members must

sign a Title 10 consent statement before performing alert duty. AGRs called or ordered to Title 10 status under this ru-

bric will not be terminated from their 32 U.S.C. 502(f) orders. However, the Title 10 activation authority will be docu-

mented on Title 32 orders for the stated alert mission. Members are subject to the UCMJ while in such status.

**DEFINITIONS**

The following definitions should be kept in mind when dealing with alert resource management:

" _Alert Duty_ " is a specific form of training. Individuals are voluntarily ordered to active duty under the provisions of 10

U.S.C. 12301(d) for a specific period of time and for the sole purpose of supporting alert missions to include executing

the alert tasking, mission planning, alert briefings/debriefings, travel to/from detached alert sites ("Dets"), or any administrative or supervisory requirements for the assumption or completion of alert duties.

An " _Alert Workday_ " is a special training workday allocated by ANG/DO for performance of the alert mission. An alert

workday is one calendar day of active duty pay and allowances. If alert workdays are supplied by the active duty force,

they will be referred to as MPA man-days.

A " _Stand-By Alert Workday_ " is an alert workday earned during alert duty. The individual is not required to be on duty but must usually be available for recall at any duty location within 12 hours.

" _Hard Alert_ " is an alert mission which requires an immediate response and the aircrew must reside at the alert duty location to meet mission timing. Actual timing is based upon specific mission requirements.

" _Soft Alert_ " is an alert mission which does not require an immediate response or the alert crew is not required to remain at the alert duty location (pager/telephone alert). Also known as "modified alert."

" _Detached Alert_ " is duty performed at a designated alert site, which is geographically separated from the unit's main operating base. The government must fund transportation to the alert site.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 25, Resources**_

_**Section 25-3 Alert Resource Management**_

_**Page 2**_

The three authorized alert postures are as follows:

" _Response Posture Immediate_ " is an alert mission requiring an immediate response. Aircrew remain at the alert duty location to meet mission requirements.

" _Response Posture Tailored_ " is an alert mission that does not require an immediate response and/or the alert crew is not required to remain at the alert duty location after reporting for duty. Aircraft must be immediately accessible for the mis-

sion as directed.

_On-Call Search and Rescue (SAR) Alaska_. If no drill-status Guardsman volunteers, then military dual-status technicians may be scheduled to fill an on-call requirement during the scheduled technician workday. Technicians employed as an on-call

resource convert to Title 10 active-duty status upon notification of a flight duty mission requirement, with specific Title

10 authority from higher headquarters and the coordination of the Alaska State Governor.

**RULES**

The minimum duration of an alert workday is eight hours. The maximum duration of alert duty will be determined by

the unit commander, based upon alert crew availability and mission requirements.

Personnel cannot be scheduled for alert in an inactive duty (UTA/AFTP/PT) status, nor may be scheduled for duty in a

non-pay status. Personnel in inactive duty status may be used for substitution/temporary alert. AGR personnel may per-

form alert duty but must revert to 10 U.S.C. 1201(d) status when performing such duty. They may not perform alert

duty in Title 32 U.S.C. 503(f) status. Military technicians may be scheduled for alert duty in technician status. Upon

launching on an alert mission as described above, technicians must do so in 10 U.S.C 12301(d) duty status.

Operational control of ANG personnel and resources directly participating in designated alert missions is vested in the

command and control system of the agency controlling the alert mission, _i.e.,_ NORAD, USSTRATCOM, etc.

Alert workday resources are to be used to support alert requirements only. Any requirements beyond a steady-state pos-

ture are considered contingency and will be resourced by the active-duty gaining MAJCOM.

Alert workdays will be allocated to units based on a 24-hour alert duty day. Alert units will receive a finite amount of an-

nual funding and workdays. Workday allocations are based on the AFSC for which the workdays are appropriated.

_**KWIK-NOTE: ANG members on Title 10 alert status are subject to the UCMJ.**_

**RELATED TOPIC:**

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**SECTION**

Status of National Guard Members

11-7

_**Air National Guard Commander's Legal Deskbook**_

885

_**Chapter 25, Resources**_

_**Section 25-4 Anti-Terrorist/Force Protection Matters**_

_**Page 1**_

**Anti-Terrorist/Force Protection Matters**

**By Colonel Douglas R. Jacobson, May 2007**

**AUTHORITY:** AFI 10-245, _Air Force Antiterrorism (AT) Standards_ (21 Jun 02, incorporating change 1, 17 Mar 07); _see also_ , AFI 31-101, _The Air Force Installation Security Program_ (1 Mar 03) (FOUO Instruction); DODD 2000.12, _Antiterrorism/Force_ _Protection (AT/FP) Program_ (18 Aug 03); DoDI 2000.16, _DOD Antiterrorism Standards_ (2 Oct 06); DoDI 2000.14, _Combating_ _Terrorism Procedures_ (15 Jun 94); DoD O-2000.12H, _DOD Antiterrorism Handbook_ (9 Feb 04); and, Joint Pub 3-07.2, _Joint Tactics, Techniques and Procedures for Antiterrorism_ (17 Mar 98). 

## INTRODUCTION

AFI 10-245 indicates that the purpose of the Antiterrorism (AT) program is to deter or blunt terrorist acts against the

US Air Force. AFI 10-245 provides guidance on the collection and dissemination of timely threat information and train-

ing to all Air Force members, discusses the development of comprehensive plans to deter, and counter, terrorist inci-

dents, and addresses the allocation of funds and personnel and implementation of AT measures.

**COMMAND RESPONSIBILITY**

AT is a command responsibility and must be thoroughly integrated into every unit's mission. Commanders must develop

a full working knowledge of AT postures stay abreast of changing postures and threat levels. Risk management, based on

the threat, is key in determining vulnerability and prioritization of resources. Any hazard with a level of risk that cannot be controlled to an acceptable level must be forwarded to the next level in the chain of command for resolution.

**AT Working Groups**

The Installation Commander must implement an AT program to combat the local terrorist threat and support the US Air

Force AT program. This program shall identify tasked agencies, required actions and means of exercising and evaluating

the program through annual operational and command post AT exercises. This includes establishing a Threat Working

Group ("TWG") to address the threat, which must consist of AFOSI, SF, IN, SG, CE, SV, and other agencies. The TWG

shall assess the threat for the commander and recommend courses of action to mitigate or counter the threat. The TWG

shall meet, at a minimum, quarterly, to review the current threat and advise the installation commander accordingly.

**Standards and Plans**

Installation commanders are required to designate in writing an AT officer. ATOs shall meet with installation AFOSI, Se-

curity Forces, Intelligence, Medical, Fire, Public Health and other agencies often to manage a comprehensive AT Pro-

gram. The plan should implement DoD and Air Force AT and Force Protection (FP) initiatives, threat assessment proce-

dures, and response measures to terrorist incidents as well as procedures to collect and analyze terrorist threat informa-

tion, capabilities and vulnerabilities to attacks, procedures for enhanced AT/FP protection, and integrated procedures for

security, fire, medical, command and control and other emergency services. At Flight and Squadron level, AT Advisors

(ATA) must be identified, in writing, and trained to ensure AT program is thoroughly integrated into every unit mission.

**Threat Level and Force Protection**

The DoD Terrorism Threat Level classification system is a set of standardized terms used to quantify the level of terror-

ism threat on a country-by country basis. The terrorism threat level terms are Low, Moderate, Significant, and High, and

are defined in Attachment 4 to AFI 10-245. The system evaluates the threat using a variety of analytical factors. Terror-

ism Threat Levels are estimates with no direct relationship to specific Force Protection Conditions ("FPCONS"). A

FPCON is a security posture promulgated by a commander in consideration of a variety of factors ( _i.e._ , a terrorist threat analysis, threat level etc.) Terrorism Threat Levels should not be confused with FPCONs.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 25, Resources**_

_**Section 25-4 Anti-Terrorist/Force Protection Matters**_

_**Page 2**_

**Other Responsibilities**

AFI 10-245 sets forth installation commander responsibilities for implementation of many of the 31 DoD AT/FP Stan-

dards. Installation commanders must familiarize themselves with DoD and Air Force AT/FP requirements.

**CONCLUSION**

Installation commanders must implement an AT program to combat the local threat and support the Air Force AT pro-

gram. Additionally, AT requires every individual to maintain a level of awareness, to practice personal security measures,

and to report suspicious activity. Commanders at all levels should ensure that all personnel complete the Level I AT

Awareness Training. Furthermore, the Flight or Squadron level ATA, and alternate, must complete the Level II AT train-

ing resident course.

_**KWIK-NOTE: The installation commander is responsible for implementation of the DoD and Air Force Antiterrorism/Force**_

_**Protection program.**_

**RELATED TOPIC:**

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**SECTION**

Classified Material

14-2

_**Air National Guard Commander's Legal Deskbook**_

887

_**Chapter 25, Resources**_

_**Section 25-5 Architect and Engineering Services**_

_**Page 1**_

**Architect and Engineering Services**

**Updated by Colonel Mary A. Enges, January 2016**

**AUTHORITY:** Federal Acquisition Regulation Part 36 _Construction and Architect – Engineer Contracts_ (48 C.F.R. Subpart 36); Defense Federal Acquisition Regulation Supplement (DFARS) Subpart 236.6, _Architect-Engineer Services_ ; National

Guard Acquisition Manual (NGAM); ANGI 32-1023, _Designing and Constructing Military Construction Projects_ (19 Nov 15). 

## INTRODUCTION

General design criteria and standards for ANG construction projects have evolved with realignment and consolidation

into active guidance for designing, constructing and managing all manner of ANG construction, including military con-

struction (MILCON) projects.(1) Air Force restructuring merged the Air Force Center for Engineering and Environment

(AFCEE) and Air Force Civil Support Agency (AFCESA) into the Air Force Civil Engineer Center (AFCEC). The Chief of

the National Guard Bureau has further developed guidance unique to ANG construction programs. The ANG Civil Engi-

neer (NG/A7) is responsible for ANG construction under 10 U.S.C. 1803, " _Facilities for Reserve Components_."

Authority for the use of Architect and Engineering (A&E) Services and Construction Design in particular is provided on

an individual project basis. Authority to use A&E services on most large ANG projects is provided by the Design Instruc-

tion, a formal document issued by NGB/A7O. (Additionally, the Whole Building Design Guide (WDBG) website offers

tools on the subject at http://www.wbdg.org.)

**TYPES OF A &E SERVICES**

The objective for all Air Force facilities is to enable mission execution, and enhance occupant safety and quality of life by providing sustainable facilities. The way to achieve this objective is through excellence in function and design. In addition to cost-management guidance, designers must comply with installation planning criteria, architectural compatibility

and facilities excellence standards.

Three types of A&E Services are typically available.

Title I, or Design Phase, services are related to preparing a specific construction project design before construction award and are limited to 6% of the estimated cost of construction for producing and delivering the design, plans, drawings and

specifications needed for a construction project. They include conducting field surveys, site investigations and studies to

obtain design data, and preparing design analyses, technical calculations, contract plans specification and cost estimates

which precede the more formal design preparation work. These surveys and investigations include topographical sur-

veys; soil borings; soil analyses; chemical and mechanical surveys and investigations; determination of utility locations

and capacities; technical studies; code and criteria reviews; and/or concept development studies.

Title II, or Construction Phase and Supervision, Inspection and Overhead (SIOH) services provided by A&E, in-house

personnel, construction-management firms or other services during the construction project. They consist of observa-

tion, inspection and documentation of construction progress. SIOH is a funded cost and must be included in the project

estimate for purposes of determining approval thresholds.

Other A&E services are design and construction-related services, but are not connected with a specific construction pro-

ject. They consist of developing Installation Development Plans, fact finding studies, performance of environmental pro-

jects involving prevention, compliance and restoration, and other similar services.

(1) _The criteria in the AFI apply to all MILCON, Medical MILCON, Non-appropriated Fund (NAF), Defense Logistics Agency (DLA),_ _Air Force Military Family Housing (MFH), Defense Commissary Agency (DeCA), Army and Air Force Exchange Service (AAFES), Air_ _Force Special Operations Forces (SOF), and Unspecified Minor Military Construction (UMMC) projects regardless of funding_.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 25, Resources**_

_**Section 25-5 Architect and Engineering Services**_

_**Page 2**_

**OBTAINING A &E SERVICES**

**Contracting Officer Responsibilities**

The Contracting Officer and the Base Civil Engineer (BCE) play primary roles in obtaining A&E services, and should be

the commander's main focal points when A&E services are needed.

The Contracting Officer is responsible for:

1. Publicizing pre-selection and selection actions in Federal Business Opportunities (FedBizOpps or FBO);

2. Preparing and submitting the synopsis on FBO;

3. Acting as an observer on pre-selection and final selection boards;

4. Obtaining cost estimates from prospective A&E firms;

5. Negotiating contracts with selected A&E firms;

6. Determining that negotiated fees are fair and reasonable and, as applicable, within the statutory six percent fee limita-

tion for Type B services;

7. Preparing and administering A&E contracts;

8. Executing modifications; and

9. Furnishing copies of contracts to the BCE and NGB as necessary.

**Base Civil Engineering Responsibilities**

The BCE is responsible for:

1. Establishing and justifying the need for A&E services;

2. Obtaining NGB approvals and authority for the use of A&E services;

3. Providing synopsis information to the Contracting Officer when the total fee is expected to exceed $15,000. Acquisi-

tions that will not be awarded using a pre-completed A&E Indefinite Delivery Indefinite Quantity (IDIQ) that involve

fees of $25,000 or more must be publicized in Federal Business Opportunities. DoD components conducting acquisitions

not utilizing IDIQs that involve fees expected to be at least $15,000 but less than $25,000 must display the notice in a

public place or by any appropriate electronic means;

4. Maintaining current data indicating A&E qualifications;

5. Serving on pre-selection and final selection boards;

6. Preparing government cost estimates;

7. Providing documentation to the Contracting Officer;

8. Providing technical assistance to the Contracting Officer during negotiations; and

9. Monitoring work and services furnished by the A&E;

10. Provide all presentations and documentation to NGB-A7O as required.

**PROCEDURES**

Acquisition of A&E services is governed by Federal Acquisition Regulation ("FAR") Part 36.6 and applicable agency supplements. Consultation with contracting and civil engineering personnel early in the process is essential to the

successful acquisition of A & E services. Generally, acquisition of such services involves convening a board consisting of members with sufficient education and experience to evaluate competing architect and engineering firms. Specific

procedures are outlined in the governing regulations.

**SUMMARY**

Obtaining A&E services is an administratively detailed and complicated process and one in which the commander should

rely heavily upon the Judge Advocate, Contracting Officer, and Base Civil Engineer for guidance and advice.

_**KWIK-NOTE: Commanders should always coordinate with the Contracting Officer and BCE before seeking A &E services. **_

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 25, Resources**_

_**Section 25-5 Architect and Engineering Services**_

_**Page 3**_

**RELATED TOPICS:**

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**SECTION**

Base Facilities Board

3-4

Fraud, Waste and Abuse

16-7

Personal Liability of Federal and State Officials

18-9

United States Property and Fiscal Officer (USPFO)

25-21

Construction at Armories

25-7

Contracting Pitfalls

25-8

Facilities - ANG

25-9

_**Air National Guard Commander's Legal Deskbook**_

890

_**Chapter 25, Resources**_

_**Section 25-6 Computer Acquisition and Security**_

_**Page 1**_

**Computer Acquisition and Security**

**By Colonel Douglas R. Jacobson, May 2007**

**AUTHORITY:** Federal Acquisition Regulation (FAR) (48 C.F.R. Part 39, _Acquisition of Information Technology_ ) and supplements; AFI 33-202, Vol 1, _Network and Computer Security_ (3 Feb 06, incorporating change 4, 10 Jan 07); AFI 33-207, _Computer Security Assistance Program_ (1 Sep 97); ANGI 33-104, _Air National Guard Systems Telecommunications Engineering Manager -_

_Base Level (ANG Stem-B) Procedural Guidance_ (10 May 05).

**ACQUISITION**

FAR Part 39 applies to the acquisition of information technology (IT) by or for the use of agencies, except for acquisi-

tions of information technology for national security systems. In acquiring information technology, agencies shall iden-

tify their requirements pursuant to OMB Circular A-130 including consideration of security of resources, protection of

privacy, national security and emergency preparedness, accommodations for individuals with disabilities, and energy effi-

ciency. When developing an acquisition strategy, contracting officers should consider the rapidly changing nature of infor-

mation technology through market research and the application of technology refreshment techniques.

Prior to entering into a contract for information technology, an organization should analyze risks, benefits, and costs. Reasonable risk-taking is appropriate as long as risks are controlled and mitigated. Contracting and program office officials

are jointly responsible for assessing, monitoring and controlling risk when selecting projects for investment and during

program implementation. Types of risk may include schedule risk, risk of technical obsolescence, cost risk, risk implicit

in a particular contract type, technical feasibility, dependencies between a new project and other projects or systems, the

number of simultaneous high risk projects to be monitored, funding availability, and program management risk.

Effective 12 Aug 03, Air Force policy required that AFWay would be used for all purchases of desktop and notebook com-

puters. AFWay was developed by the Air Force to provide a purchasing process for acquiring and managing IT. AFWay is

online at https://afway.af.mil.

On 13 Jul 04 the Air Force Information Technology Commodity Council (AF ITCC) announced its commodity strategy

for desktop and laptop computers. Key tenants of the strategy are to leverage Air Force wide purchase volume, standard-

ize hardware and core software, reduce costs, and improve life cycle management practices. The strategy involves the use

of a Quarterly Enterprise Buy (QEB) process to establish and update standard desktop and laptop computers and consoli-

date requirements. Effective 13 Jul 04, planned purchases for desktop and laptop computers are to be made through AF-

Way either from small businesses or through the QEB process.

**SECURITY MEASURES**

The potential for abuse of computers and information technology includes, but is not limited to: violation of copyright

laws, processing of classified material, and accessing bulletin boards. This is a continual problem in today's environment.

The following measures taken by Commanders will help ensure computer security:

1. Be aware of the provisions of the above references and notify all personnel on a semi-annual or annual basis of the

sanctions available regarding willful violation of Air Force policy, ANG policy, and federal and state law related to com-

puter security and abuses;

2. Develop and implement a program of inspections by qualified personnel who can determine whether any laws have

been or are being violated. The unauthorized copying of "pirated" software violates both federal copyright laws and fed-

eral trademark laws;

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 25, Resources**_

_**Section 25-6 Computer Acquisition and Security**_

_**Page 2**_

3. When software packages are ordered and received, require the individual who is responsible for the particular equip-

ment which is ordered, to acknowledge receipt of the software and issue a memorandum of understanding indicating

that the software is either public domain or copyrighted;

4. Designate in writing certain computers, primarily those with removable disks and similar media, to process classified

material;

5. Caution individual computer operators about the potential for criminal action if they knowingly violate laws governing

the processing of classified material on an unauthorized piece of equipment.

**CONCLUSION**

Commanders are encouraged to contact their contracting officers for advice on computer acquisition, and to take the

above preventive measures concerning computer security.

_**KWIK-NOTE: Commanders must follow established procedures to acquire computers, and take all reasonable precautions to**_

_**ensure computer security.**_

**RELATED TOPICS:**

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**SECTION**

Claims

18-2

Classified Material

14-2

COMSEC Telephone Monitoring

14-9

Contracting Pitfalls

25-8

Copyright

14-14

Ethics

7-3

Federal Government Property Furnished to the ANG

25-10

Fraud, Waste and Abuse

16-7

Inspector General

16-9

OSI and SF Reports

8-14

Personal Liability of Federal and State Officials

18-9

Preventive Law Program

17-15

Privacy Act

14-12

Unauthorized Copying and Unauthorized Use of Software

14-15

"For Official Use Only"

14-3

Theft and Vandalism Claims

8-9

United States Property and Fiscal Officer (USP & FO)

25-20

_**Air National Guard Commander's Legal Deskbook**_

892

_**Chapter 25, Resources**_

_**Section 25-7 Air National Guard Construction**_

_**Page 1**_

**Air National Guard Construction**

**By Colonel Mary A. Enges, January 2016**

**AUTHORITY:** 10 U.S.C. Chapter 1803; 10 U.S.C. Chapter 2667; 10 U.S.C. Chapter 2805; Federal Acquisition Regula-

tion (FAR) (48 C.F.R. Chapter 1) and supplements Army (AFARS), National Guard (NGFARS); ANGI 32-1023, _Designing_

_and Constructing Military Construction Projects_ (19 Nov 15); National Guard Regulation 5-1, _National Guard Grants and Cooperative Agreements_ (28 May 2010); applicable state law, including the state-specific Military Construction Cooperative Agreement.

**GENERAL PRINCIPLES**

Construction of ANG Facilities is authorized and funded in annual DoD Authorization and Appropriation Acts. When

such construction is authorized and funds are appropriated, the construction is accomplished under the authority and

procedures of 10 U.S.C. Chapter 1803 and the applicable regulations. Construction on federally owned or controlled land

is generally accomplished via a federal contract awarded and administered by the USP FO contracting office. Construc-

tion on state-owned or -controlled land must be accomplished by a state contracting officer in accordance with state law.

If state construction, funds are provided to the state by a Military Construction Cooperative Agreement (CA) between

the state and NGB. When an "armory" is constructed on state land, the federal share of the construction is limited by law to 75% of the construction cost.

**ANG-SPECIFIC CONSTRUCTION**

ANG facilities have historically been constructed under federal procurement contracts (federal contracting) on federally

owned and controlled land and the facilities subsequently licensed to the state. Where facilities are constructed at civil-

ian airports for an ANG unit located there ( _e.g_., runway extensions, barriers, etc.) such construction must be by the state ( _i.e._ , airport authority, municipality, etc.) employing state acquisition law. Payments made by the state to the winning bidder are reimbursed by NGB through the appropriate NGB Cooperative Agreement, or otherwise executed in accordance

with the particular state's CA.

Programming, authorization, and funding for construction is normally done through the five-year PPBS cycle, within

which an individual project may require several years to complete. However, authorizations and appropriations from con-

gressional add-ons and reprogramming may result in projects being undertaken outside this normal cycle.

Major construction may be funded only with funds appropriated in an ANG military-construction line item in a DoD

military-construction appropriation act. However, a minor military construction project estimated to cost $1 million or

less may be funded with Operation and Maintenance appropriations. Maintenance and repair is generally not considered

construction unless the cost of repair is more than 50% of the value of the facility; maintenance and repair is funded

with Operation and Maintenance appropriations.

Successful construction projects require coordination and teamwork among the contracting officer (USPFO), unit civil

engineering personnel, the Staff Judge Advocate, and the National Guard Bureau to ensure the construction project is

properly approved, meets ANG design criteria, and the proper party (USPFO or state) executes the contract. The project

file should be documented to show that: the work in the project has been properly defined; proper funds are available

and used; the project specifications and requirements meet ANG standards; and the work is prosecuted in a manner in

which it meets contract requirements and is within the available funding.

A Judge Advocate must review all federal contracts and Military Construction cooperative agreements for conformance

with the FAR and its supplements. Fostering a working relationship early and often is invaluable with the USPFO, the

particular ANG contracting office and the National Guard Bureau, Office of Grants and Cooperative Agreements (PARC).

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 25, Resources**_

_**Section 25-7 Air National Guard Construction**_

_**Page 2**_

The Judge Advocate will review project approvals, project funding, design contract solicitation and award, the construc-

tion contract solicitation prior to issuance, the construction contract prior to award, and any contract or agreement modi-

fications prior to execution. The Judge Advocate may also advise the Source Selection Team during a competitive acquisi-

tion process. The entire working file is reviewed to assure compliance with law and regulations at each stage. The Staff

Judge Advocate should be consulted on any legal problems under the contract at the earliest possible time to fully pro-

tect the government's interests.

**UNIQUE CONSTRUCTION**

ANG facilities may also be constructed under other authorities. ANG facilities on federal land may also be constructed

through an Enhanced Use Lease process. If the ANG real property is non-excess and underutilized, it may be a candidate

for energy projects, commercial facilities or related construction. Under this scheme, a portion of rents, cash or in-kind

consideration is returned to the ANG by a private developer in exchange for a long-term lease of the underlying property.

To explore this opportunity, contact NGB and the Air Force Civil Engineer Center (AFCEC).

As the Department of Defense continues to set out more stringent energy sustainability guidelines, Judge Advocates can

assist when their states convert or equip facilities to meet these goals. Some of the mechanisms to accomplish include

Energy Savings Performance Contracts, Enhanced Use Leases and Utilities Privatization. Enlist the help of NGB and the

Energy Directorate of AFCEC, based at Tyndall Air Force Base, FL, when your state considers one of these options.

_**KWIK-NOTE: All ANG construction must be initiated by the appropriate federal or state officials.**_

**RELATED TOPICS:**

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****

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****

****

****

****

****

****

****

****

**SECTION**

State ANG Headquarters

2-8

Environmental Duties at Base Level

12-3

Preservation of Historic Properties

12-5

Architect and Engineering Services

25-5

Contracting Pitfalls

25-8

Quarters

25-16

Real Property - Acquisition and Retention

25-17

United States Property and Fiscal Officer (USPFO)

25-20

_**Air National Guard Commander's Legal Deskbook**_

894

_**Chapter 25, Resources**_

_**Section 25-8 Contracting Pitfalls**_

_**Page 1**_

**Contracting Pitfalls**

**Updated by Colonel Mary A. Enges, January 2016**

**AUTHORITY:** Federal Acquisition Regulation (FAR) Part 1.602-3, _Ratification of Unauthorized Commitments_ , (48 C.F.R.

Chapter 1, 1.602-3; and supplements (Department of Defense (DFARS), Army (AFARS), National Guard (NGFARS));

DoDD 5500.7-R, _Joint Ethics Regulation_ (30 Aug 93, C4, 6 Aug 98).

**AUTHORITY TO CONTRACT AN UNAUTHORIZED PROCUREMENT**

The most basic premise of acquisition law, procurement law, or government contract law (the terms are used inter-

changeably), and its application is only a Contracting Officer (CO)has the authority to contractually bind or otherwise

obligate the government, and then only within the limits of the CO's warrant.

This authority to bind the government must exist before contact is made with potential vendors or contractors. In the

absence of authority provided pursuant to the CO's warrant, no representative of the government can obligate the govern-

ment to perform pursuant to the terms of any contract. Should an individual without the requisite authority attempt to

obligate the government, the individual may be personally liable for the performance of the contract. If someone without

authority has attempted to bind the government in a procurement matter, it does not mean the government is required

nor will ratify those actions and assume obligations made without proper authority. However, the contractor is generally

entitled to enforce its contract and therein lies the basis of potential personal liability.

While the government is not required to ratify unauthorized procurements, it may, nonetheless, do so in limited situa-

tions. The Federal Acquisition Regulations and supplements provide procedures for ratification of unauthorized procure-

ments, but they are narrow in application and the process can prove to be embarrassing for the person involved. The lo-

cal commander of the individual who makes the unauthorized commitment is responsible for assuring the regulatory re-

quirements of the applicable FAR Supplement are satisfied.

As a commander, be aware of the very strict limitations upon your direct dealing with private business for government

purchases. Authority to procure supplies or services on behalf of the government comes from either the U.S. Constitu-

tion or federal statute. THIS AUTHORITY IS NOT INHERENT IN ANY POSITION OR COMMAND. If you do not have

procurement authority and have needs which cannot be filled through military supply channels, ASK YOUR CONTRACT-

ING OFFICER for guidance. As a commander, if you are unsure of your authority as it relates to the acquisition of sup-

plies or services, or if someone serving under you may have been involved in an unauthorized acquisition, see your SJA.

**COMPETITION**

Expenditures of public money require special care. It is important the ANG acquires the greatest value from its expendi-

tures for goods and services. Additionally, it is important the public perceives the ANG as a careful manager of public

funds. Competition is generally the key to effective procurement. Well-designed competitions ensure the ANG gets the

best value for its expenditures and allows our country's free-market system to work for our benefit. Moreover, competi-

tion, in most cases, is mandated by law to the maximum extent practicable.

Most procurements of $3,000 and below can be made without competition. However, the Contracting Officer must still

be able to determine the price is fair and reasonable. This may mean, at minimum, a request for quotation from several

potential vendors. All purchases over that amount generally require some level of competition unless a specific exemp-

tion applies. Consult with your Contracting Officer for more details, or if questions remain about your exact authority.

**CONTACT WITH CONTRACTORS**

Federal law limits information that can be divulged by federal employees concerning procurements or potential procure-

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 25, Resources**_

_**Section 25-8 Contracting Pitfalls**_

_**Page 2**_

ments. As a general rule, commanders should not communicate directly with prospective contractors – especially in an

informal manner -- either before or during the procurement process without first seeking the advice of a JAG or Contract-

ing Officer. However, commander input is often critical for more formal phases of the procurement process. Similarly, af-

ter a contract has been executed (signed), it is the responsibility of Contracting Officers and their technical representa-

tives to deal with the questions of contract administration or performance. Commanders should steer well clear from di-

rect contact during contract performance, unless that contact is spelled out in the contract itself.

This point cannot be over-emphasized. The terms of the contract govern contract performance. _**Commanders should not**_

_**under any circumstances provide direction to the contractor during any part of the contractor's performance of the contract.**_

_**Deal with the Contracting Officer instead.**_ Instructions, requests, complaints, or similar communications made by the commander directly to the contractor can result in the submission of claim for extra work. The Contracting Officer is not re-

quired -- and indeed may not be able -- to ratify unauthorized directives provided to a contractor by a commander.

Similarly, contact of a non-business nature with contractors or prospective contractors should be kept to a minimum. Ir-

regularities and improprieties, as well as the appearance of irregularities and improprieties, are areas closely monitored

by the general public as well as various "watch dog" agencies, such as the General Accounting Office, OSI, Inspector General, and federal and state auditors of the USPFO. A powerful, confidential disclosure tool is the Fraud, Waste and Abuse

Hotline used to communicate "real" or "perceived" violations. Therefore, seemingly harmless contacts with contractors or prospective contractors can be distorted and blown completely out of proportion, generally to the detriment of the commander who has made the contact with the contractor or prospective contractor. Those agencies also conduct audits and

inspections of various contracting functions to assure ongoing compliance with the various acquisition regulations.

On occasion, you may be contacted by a prospective contractor to provide a demonstration, loan, testing, or evaluation of

a product. No matter how innocent the approach, nor how beneficial it may seem to the government, contact with pro-

spective contractors for these purposes should always be coordinated with a Contracting Officer or JAG.

**RESPONSIBILITY TO THE CONTRACTING PROCESS**

Ensuring the command complies with all applicable laws and regulations governing the purchases of goods and services

is a responsibility that ultimately rests with the commander. The commander must recognize Contracting Officers may

only act within the parameters of existing laws. Actions that violate the law can result in serious consequences for the

command as well as the individuals involved. Therefore, it is in the best interest of the commander to ensure the integ-

rity of the contracting process and protect the system from improper intra-organizational pressure.

**LEGAL REVIEW OF CONTRACTS**

Contracts must be reviewed for legal sufficiency by the Staff Judge Advocate and/or NGB-JA, depending on the dollar

amount and type of contract involved, especially those over the Statutory Acquisition Threshold (SAT).

_**KWIK-NOTE: Commanders should NEVER spend, authorize, or obligate government funds, as that authority is vested**_

_**solely in a warranted Contracting Officer.**_

**RELATED TOPICS:**

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****

****

****

****

****

****

****

****

**SECTION**

Base Facilities Board

3-4

Fraud, Waste and Abuse

16-7

Personal Liability of Federal and State Officials

18-9

Architect and Engineering Services

25-5

Computer Acquisition and Security

25-6

Construction at Armories

25-7

Real Property - Acquisition and Retention

25-18

_**Air National Guard Commander's Legal Deskbook**_

896

_**Chapter 25, Resources**_

_**Section 25-9 ANG Facilities**_

_**Page 1**_

**ANG Facilities**

**Updated by Colonel Mary A. Enges, January 2016**

**AUTHORITY:** DoDD 1225.07, _Reserve Component Facilities Programs and Unit Stationing_ (6 Jun 01, certified current as of 23

Apr 07); AFPD 32-10, _Installations and Facilities_ (4 Mar 2010); AFI 32-1012, _Reserve Component Facilities Programs_ (22 Jul 94). (Note: This AFI is still current.)

**RESPONSIBILITY OF CHIEF, NGB**

The Chief, National Guard Bureau, is responsible for developing the program for facilities to be solely used by the ANG.

These programs are developed in accordance with AFI 32-1012.

AFI 32-1012 states the Chief, NGB must: establish plans, programs, budgets, and accounting procedures to support facili-

ties construction and maintenance programs and submit reports; develop and maintain management information sys-

tems to control the use of funds; and execute a cooperative agreement that establishes the equities and obligations be-

tween the United States Government and each state for a military construction project on state- owned land.

Attachment A to AFI 32-1012 provides criteria for cooperative agreements covering contributions of federal funds to the

states for National Guard facilities. In effect, a cooperative agreement must be executed for each MILCON project to be

constructed on state-owned land.

The categories for facilities in the ANG are construction, maintenance, and minor construction. The authority for expend-

ing funds in these categories is vested with the Chief, NGB and may be delegated to the base civil engineering office.

**OPERATION AND MAINTENANCE RESPONSIBILITIES**

The ANG is responsible for all O&M costs of its exclusive use (licensed) facilities including ANG units which are tenants on military installations. The host is responsible for all O&M costs of jointly used areas which are not licensed to the ANG. O&M costs for unlicensed facilities used by ANG personnel performing an active duty mission shall be provided

by the MAJCOM responsible for the mission.

**POLICY**

The overarching policy guidance for ANG facilities is to provide and retain the minimum number of installations and fa-

cilities necessary to effectively support Air Force missions and people at the lowest life-cycle cost and in a sustainable

way. The Air Force will inactivate or dispose of installations and facilities that are excess to requirements.

The general guidance for facilities policy is:

1. Construct facilities to make the greatest contribution to readiness;

2. Utilize facilities for joint use, if possible;

3. Use existing facilities when possible;

4. Use drawings to show major components;

5. Design facilities for alternative uses in the future;

6. Facilities should not have redundant space; and

7. The design of facilities should be austere.

**ACQUISITION**

The general guidance for acquiring facilities is:

_**Air National Guard Commander's Legal Deskbook**_

897

_**Chapter 25, Resources**_

_**Section 25-9 ANG Facilities**_

_**Page 2**_

1. Use existing facilities before new facilities are sought;

2. Use excess real property held by other military departments or federal agencies before new land is sought;

3. Use leases or donations if the leased or donated land meets the mission needs;

4. Construct additions on existing facilities;

5. Purchase existing facilities if they meet the mission needs;

6. Construct new facilities jointly with other reserve components; and

7. If these methods do not meet the mission needs, then construct new facilities.

**CONCLUSION**

ANG facility issues raise many regulatory and legal questions. Therefore before any decision is made concerning ANG

facilities, consult your Staff Judge Advocate.

_**KWIK-NOTE: There is an established pecking order for the use and acquisition of ANG facilities.**_

**RELATED TOPICS:**

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****

****

****

****

****

****

****

****

****

****

**SECTION**

Base Facilities Board

3-4

Commercial Solicitation on Base

3-9

Day Care Centers

3-10

Leases and Armory Use Agreements

3-12

Weddings and Other Social Affairs on Base

3-18

Community Relations Programs

6-4

Ethics

7-3

Environmental Duties at Base Level

12-3

Preservation of Historic Properties

12-5

Fraud, Waste and Abuse

16-7

Inspector General

16-9

Civil Associations and Military Corporations

22-2

Morale, Welfare and Recreation (MWR) Programs, Activities and Facilities

22-4

Airport Joint Use Agreements

25-2

Architect and Engineering Services

25-5

Construction at Armories

25-7

Contracting Pitfalls

25-8

Federal Government Property Furnished to the ANG

25-10

Installations Jointly or Solely Occupied by the ANG

25-12

Quarters

25-16

Real Property - Acquisition and Retention

25-17

United States Property and Fiscal Officer (USP&FO)

25-20

_**Air National Guard Commander's Legal Deskbook**_

898

_**Chapter 25, Resources**_

_**Section 25-10 Federal Government Property Furnished to ANG**_

_**Page 1**_

**Federal Government Property Furnished to the ANG**

**Updated by Colonel Mary A. Enges, January 2018**

**AUTHORITY:** 10 U.S.C. 101; 32 U.S.C. 702; AFMAN 23-110, _USAF Supply Manual_ (10 Apr 04), V2, Part 2, Ch. 26, _War_ _Reserve Materiel_ ; AFI 23-201, _Fuels Management_ (20 Jun 14)/AFRC Supplement 1 (30 Dec 14); OpJAGAF 1980/70, _Federal_ _Government Property Furnished to Guard Remains Federal Property_ (17 Jul 80); OpJAGAF 1980/73, _AFOSI May Investigate ANG_

_Activities To Safeguard Federal Property_ (22 Jul 80).

**OWNERSHIP**

Federal government property furnished to the ANG _remains federal property_.

The ANG is a part of the organized militia of the United States, organized and equipped primarily at federal expense.

Most ANG operations and supplies are funded directly under U.S.C. Title 10. In addition, the Secretary of the Air Force

supports the ANG by providing arms, equipment, uniforms and other supplies to the states pursuant to 32 U.S.C. 702.

**PROTECTIONS**

Property issued to the ANG is afforded the same protections under laws that apply to any property of the United States.

Accordingly, theft of ANG property is punishable under federal law. Theft by an ANG member in Title 10 status may be

punishable by court-martial under the provisions of the UCMJ. A member of the ANG who commits such a crime while

in Title 32 or civilian status may face prosecution by the Department of Justice in federal district court.

Theft of ANG property is a federal crime and may be investigated by federal investigative agencies such as the Federal

Bureau of Investigation and the Air Force Office of Special Investigation.

_**KWIK-NOTE: Consult the references above for specific guidance on use of federal property.**_

**RELATED TOPICS:**

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****

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****

****

****

****

****

****

****

****

****

**SECTION**

Base Facilities Board

3-4

Community Relations Programs

6-4

Criminal Investigations, Prosecution and Reporting - DoD and DOJ

8-12

OSI - Air Force

8-13

OSI and SF Reports

8-14

Status of National Guard Members

11-7

Copyright

14-7

Unauthorized Copying and Unauthorized Use of Software

14-15

Fraud, Waste and Abuse

16-7

Inspector General

16-9

Preventive Law Program

17-15

Personal Liability of Federal and State Officials

18-9

Morale, Welfare and Recreation (MWR) Programs, Activities and Facilities

22-4

Computer Acquisition Security

25-6

Contracting Pitfalls

25-8

ANG Facilities

25-9

Issue Items and Equipment Turn-In

25-13

Loan of Air Force Equipment

25-14

Reports of Survey

25-19

United States Property and Fiscal Officer (USPFO)

25-20

_**Air National Guard Commander's Legal Deskbook**_

899

_**Chapter 25, Resources**_

_**Section 25-11 Fire Protection Jurisdiction**_

_**Page 1**_

**Fire Protection Jurisdiction**

**By Colonel Douglas R. Jacobson, May 2007**

**AUTHORITY:** AFI 32-2001, _The Fire Protection Operations and Fire Prevention Program_ (1 Apr 99); ANG Supplement 1 to AFI 32-2001 (8 Oct 99); applicable state law and regulations. 

## INTRODUCTION

ANG installation commanders have overall responsibility for the installation's fire protection program. They must assure

that all resources under their command are adequately and effectively protected from fire, implement all governing direc-

tives, and preserve all evidence resulting from a fire until investigations are completed.

To accomplish this, commanders need to know the jurisdiction or areas, both on and off base, for which they are responsi-

ble. A commander's fire protection jurisdiction will often be set forth in the leases, licenses, Airport Joint Use Agree-

ments, Memoranda of Understanding (MOUs) and other agreements that govern the operations of the base and define

the ANG's relationship with other military components and civilian agencies on the base. Commanders should consult

with the Base Fire Chief to ensure fire protection responsibilities are clearly defined and understood.

**JURISDICTIONAL CONFLICTS WITH CIVILIAN FIRE DEPARTMENTS**

ANG units may have fire protection responsibility for buildings or areas off the base proper which are situated in a mu-

nicipality. In other cases, the United States may have leased land for a base and licensed it back to the State for use as an ANG base. Such scenarios can present problems regarding fire protection responsibilities because local civilian fire departments may assert that the property falls within their jurisdiction.

**FEDERAL SUPREMACY DOCTRINE**

The leases, licenses, and other agreements concerning the property in question should address the responsibilities of the

various parties. However, even if the documents are silent, as a general rule, federal regulations supersede conflicting

state and local laws. Accordingly, property under the control of the ANG is subject to ANG jurisdiction and fire protec-

tion procedures. Because this doctrine is applicable to a variety of situations, we have set forth a fairly lengthy analysis below that applies the principle of federal supremacy to fire protection responsibilities.

**AVOIDING CONFLICTS**

The best method for avoiding conflicts is advance planning. Commanders should ensure the Base Fire Chief identifies all

areas of potential conflict and initiates contact with the local authorities. Fire protection is a serious matter for protecting property and lives and in maintaining good community relations. An emergency is not the time to argue over jurisdic-

tion. Identify potential problem areas and address potential conflicts before a problem arises. Get your Judge Advocate

involved to help coordinate the matter.

**FEDERAL SUPREMACY ANALYSIS**

The federal government has the supreme right to perform the functions delegated to it by the Constitution free from in-

terference from any source, and jurisdiction of the State which would impair the federal government's effective use of the

premises for the purposes leased ( _i.e._ , performance of the federal military mission by the ANG). _See Fort Leavenworth Rail-road Co. v. Lowe_ , 114 U.S. 525 (1885). The State has consented to that federal supremacy by virtue of its lease to the United States for use and occupancy of the premises by a federally recognized reserve component of the armed forces.

The federal government has exercised that jurisdiction by virtue of its licensing of the premises to the state ANG for its

use subject to federal regulation, supervision and approval.

_**Air National Guard Commander's Legal Deskbook**_

900

_**Chapter 25, Resources**_

_**Section 25-11 Fire Protection Jurisdiction**_

_**Page 2**_

The federal government's authority to regulate, supervise, and approve this usage of the premises by the state ANG de-

rives from the U.S. Constitution, Article I, Section 8, Clauses 14 (regulation of the military) and 16 (training of the militia). The federal government has the right to administer, operate, maintain and equip those facilities designated for the

proper development, training, operation and maintenance of reserve components of the armed forces (10 U.S.C. 18231,

_et seq_.). The President also may prescribe regulations for the organization, discipline, and governing of the National Guard, and this power may be delegated (32 U.S.C. 110).

The state ANG is a part of the organized militia of the several states that is organized, armed, and equipped wholly or

partly at federal expense (10 U.S.C. 101(c)(4)(C)). The state ANG is funded almost entirely by the federal government.

Supplies necessary to uniform, arm, and equip the state ANG are issued to your State by the Secretary of the Air Force

under the authority of 32 U.S.C. 702. Property so issued or consigned remains the property of the United States (32

U.S.C. 710(a)). The general authority for the Secretary of the Air Force to periodically require inspections of the Air Na-

tional Guard to inquire into the condition of property, proper organization, qualification of ANG personnel, equipment

and training, and compliance with federal regulations is provided in 32 U.S.C. 105.

The USAF has assigned your unit a specific mission in support of the national defense. The unit has been issued a cer-

tain number and kind of aircraft and the necessary supporting materials to perform that mission. The cost of the facili-

ties, equipment, and materials comprising your mission at your base is in the tens of millions of dollars.

The Air National Guard of the United States (ANGUS) is a reserve component of the Air Force, all of whose members

are members of the ANG (10 U.S.C. 101(c)(5)). All federally recognized ANG units and organizations are also units and

organizations of the ANGUS. Conceptually, however, they are distinct; the ANG is a state militia organization while the

ANGUS is a reserve component of a federal armed force. Members of the ANG thus are members of the ANG of the

State, receive federal recognition of that membership and occupy Reserve of the Air Force status as ANGUS members

and as such are subject to federal regulation. The above applies to the Air National Guard of the State.

From the foregoing, it should be clear Congress has exercised its constitutionally derived power (Art. I, Section 8,

Clauses 14 and 16) by enacting laws and regulations governing the organized militia ( _i.e._ , state ANG). Federal legislation and regulations displace conflicting state law under the Supremacy Clause (U.S. Constitution, Article VI, Section 2).

The two federal military regulations governing fire protection for the Air Force and the Air National Guard are AFI 32-

2001 and ANG Supplement 1 to AFI 32-2001.

These federal regulations clearly supersede state law to the extent that they conflict.

Moreover, because of the pervasiveness of the federal government's regulation of the operations and conduct of the Air

National Guard, and the dependence and reliance upon the ANG as an essential component of this nation's defense - visi-

bly demonstrated by the federal government's commitment to your unit of military resources vital to the nation's de-

fense - the federal interest in the Air National Guard is so dominant, that the federal government has pre-empted this

area: i.e., federal law precludes enforcement of state law concerning the operations, training or mission of the Air Na-

tional Guard to the extent that enforcement of the state law would produce a result inconsistent with the object of the

federal law.

State law may even complement, rather than conflict with, federal law and regulations governing the state Air National

Guard. Your unit is part of your state's military department which includes all the state's property, structures, facilities, functions, and personnel. The Adjutant General (AG) usually has the authority:

To lease, furnish, maintain and operate bases, buildings, structures, and other facilities for the state ANG, with appropri-

ated federal or state funds, and

To determine all services necessary to be performed there.

_**Air National Guard Commander's Legal Deskbook**_

901

_**Chapter 25, Resources**_

_**Section 25-11 Fire Protection Jurisdiction**_

_**Page 3**_

State law may require all property of the state and United States to be safeguarded and maintained, with responsibility

and accountability for liability for loss, damage, or destruction fixed by the AG as provided in applicable laws and regula-

tions of the federal and state government. In recognition of the federal interest in the ANG, state law or regulation usu-

ally gives the AG general charge and control of, and regulatory power over all bases and facilities owned, leased, or main-

tained by the State or United States for use by the state ANG and of all activities conducted thereon. The installation

commander designated by the AG is in direct charge and control of that installation and must observe all laws, orders,

and regulations applicable to the base or other facilities, all activities conducted therein and all persons employed there.

State law or regulation may uphold the paramount use of installations for military operations without outside interfer-

ence. To emphasize the ultimate authority of the installation commander, state law may even give the installation com-

mander the power to detain any person, who in any way or manner interrupts, molests, or prevents the discharge of mili-

tary duties of state ANG members on the base.

At your base, your unit has a fire department with members who serve full-time. The federal government has authorized

and supplied your unit (at a substantial cost) special fire fighting vehicles, trucks and equipment to enable the base fire

department to protect all the assets assigned to and used by the unit, including aircraft, structures, equipment and per-

sonnel, in performance of the unit's mission. The federal government also appropriates hundreds of thousands of dollars

each year to specially train these firefighters to better perform their assigned duties. In light of this, and the federal government's reliance on your unit for a vital role in the nation's defense, it is difficult to understand how any civilian fire department - city, town or village; full-time, part-time, or volunteer - would seek to assert its authority or assume responsibility over military assets which the federal government has furnished, especially where the federal government has ex-

pressly provided the military authorities have ultimate responsibility and control of fire protection for those assets.

Your supreme authority over your own area, whether it is geographically within a local fire district, is provided by federal law which is paramount; and which may even be complemented by state law. Thus, the source of the local fire department's authority will either be superseded or pre-empted by federal law.

**CONCLUSION**

If you ever have a problem in this area, consult your SJA and consider the nuances of your state's law before acting. Some-

times a polite but firm explanatory letter to an appropriate civilian official will resolve the matter. You may even consider entering into a Reciprocal Fire Protection Agreement or an MOU. If the problem is unresolved, call state Headquarters.

_**KWIK-NOTE: This is an area where you sometimes have to assert your authority with local officials firmly, while at the**_

_**same time maintain good community relations.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Access to Military Installations

3-2

Aid to Civilian Authorities

6-2

Aircraft Accidents and Safety Investigations Off-Base

16-2

Joint Use Agreements

25-2

Community Relations Programs

6-4

Facilities - ANG

25-9

Federal Government Property Furnished to the ANG

25-10

Installations Jointly or Solely Occupied by the ANG

25-12

Jurisdiction

2-5

Loan of Air Force Equipment

25-14

National Defense Area

25-15

Reciprocal Fire Protection

25-19

Memoranda of Understanding (MOUs)

6-6

_**Air National Guard Commander's Legal Deskbook**_

902

_**Chapter 25, Resources**_

_**Section 25-12 Installations Jointly or Solely Occupied by the ANG**_

_**Page 1**_

**Installations Jointly or Solely Occupied by the ANG**

**By Colonel Mary A. Enges, January 2018**

**AUTHORITY:** AFI 32-1012, _Reserve Components Facilities Program_ (22 Jul 94); AFI 32-9001, _Acquisition of Real Property_ (28

Sep 17; this document has been substantially revised from the superseded 27 Jul 1994 instruction); AFI 32-1061, _Provid-_

_ing Utilities to U.S. Air Force Installations_ (27 Jan 16); applicable state law and regulations. 

## INTRODUCTION

In keeping with US Air Force policy to acquire the least amount of interest and space for the shortest term possible to

conduct and sustain mission operations, some Air National Guard units are co-located on active-duty Air Force bases or

on a site owned or leased by the Air Force or other active-duty component. Common situations also include ANG units

occupying land:

Owned by the federal government and either used solely by the ANG, or jointly with an active-duty or reserve unit.

Owned by the state and used solely by the ANG.

Owned by a political subdivision of the state (county, city, etc.), leased to the Air Force, and licensed by the Air Force to the state for use by the ANG, either solely or jointly as a host or a tenant to another National Guard or reserve unit.

This topic discusses some of the legal concepts connected with such relationships.

Common questions arising in these situations relate to who has authority to do what and who has responsibility for own-

ership of property. This topic briefly looks at several combinations of relationships and suggests starting points for clarifying them. Whether the land is exclusively or concurrently owned by the federal or state government determines many of

the questions that arise.

The first step is to determine who owns the land, then determine whether it is jointly or solely used.

**AIR NATIONAL GUARD AS SOLE OCCUPANT OF A SITE**

In these relatively simple situations, the state Adjutant General is responsible for operation and maintenance of installa-

tions and related activities. State law and regulations usually govern the installation commander's authority and responsi-

bilities.

**AIR NATIONAL GUARD AS HOST**

If the ANG is the host of a base, the ANG installation commander is the authority for all activities of all tenants on the

base. For example, if the installation commander bans smoking from all base buildings, those buildings would necessar-

ily include those occupied by another reserve component tenant on the base. A host-tenant agreement should be negoti-

ated which governs the rights and responsibilities of each occupant and the conditions of occupancy. These agreements

are usually handled by the National Guard Bureau in conjunction with the state Adjutant General, but all host and tenant

commanders should attempt maximum input in conjunction with their civil engineers, Judge Advocate and other key per-

sonnel. At a minimum, all occupants should have a copy of this agreement for reference.

**AIR NATIONAL GUARD AS TENANTS ON ACTIVE-DUTY INSTALLATIONS**

All land and buildings (real property) on Air Force installations, including the land and buildings of an Air National

Guard unit, are under the command jurisdiction of the Chief of Staff, USAF. This includes buildings constructed and

maintained by the National Guard unit. In this situation, the USPFO does not have control.

_**Air National Guard Commander's Legal Deskbook**_

903

_**Chapter 25, Resources**_

_**Section 25-12 Installations Jointly or Solely Occupied by the ANG**_

_**Page 2**_

In the ANG section of the Air Force Base, the Air National Guard has exclusive use of all real property, but must obtain

the Air Force base commander's permission for facility modifications or changes.

The Air Force base civil engineer(BCE) may make inspections of Air National Guard areas to ensure maintenance of

ANG facilities is being effectively performed. The Air Force BCE will also provide consultation and technical advice on

facility maintenance and related functions.

The ANG commander should enter into a Memorandum of Understanding (MOU) with the host commander covering all

prohibited and permitted activities on base by members of the ANG and any required procedures for seeking approval of

activities not specifically covered by the MOU.

**AIR NATIONAL GUARD AS JOINT USERS**

On occasions when an Air National Guard-owned facility is near or immediately adjacent to an Air Force installation, the

two components may both use some of the same facilities on the Air Force installation. If the sharing of facilities is all

that needs to be addressed between the two components, a "license" may only be required. Such a license to co-use the property is typically prepared and issued by the U. S. Army Corps of Engineers. Licenses grant permission to do certain

things, and are generally revocable at the will of the person or entity granting the license.

The Air Force installation commander and the Air National Guard installation commander will prepare and sign a joint

use agreement in other cases. This agreement will outline each unit's responsibilities for administrative matters such as:

Maintenance, repair, and minor construction;

Liability for accidents;

Funding requirements; and

Permitted uses by the ANG of the Air Force facilities.

**INSTALLATION AGREEMENTS**

An Air National Guard Unit when not in federal service is a part of the state, not federal, government. Agreements that

provide for transfer of federal funds between the ANG, the active Air Force or other federal agencies must be between

federal entities. As a result, any agreement under which the ANG unit provides or receives funds for installation services

must be between NGB (USPFO) and the other federal entity. An ANG installation or unit commander has no authority

to enter into any agreement obligating federal funds.

**LICENSE REQUIRED**

All real property of the Air Force occupied by the Air National Guard must be documented by a license, whether such

property is government-owned or leased; or whether the Air National Guard has exclusive control of the property; or is

simply a tenant with joint use of the property. Units must initiate a request for renewal of licenses _not later than one year_ _before_ the expiration of the license.

**FUNDING**

All Air National Guard utilities (power, water, heat, etc.) will be paid for as set out in AFI 32-1061. Providing utilities

can be very complex, so ensure your base energy manager consults regularly with NGB or the Air Force Civil Engineer

Center (AFCEC) for guidance as appropriate. The Air Force will not charge the ANG for use of jointly-used facilities

such as runways, towers or security, which the Air Force would have supplied for itself even if the ANG was not present.

_**Air National Guard Commander's Legal Deskbook**_

904

_**Chapter 25, Resources**_

_**Section 25-12 Installations Jointly or Solely Occupied by the ANG**_

_**Page 3**_

_**KWIK-NOTE: Regardless of the relationship or situation in which an ANG unit occupies an installation, the ANG com-**_

_**mander should maintain and have as much input as possible into all agreements, leases and licenses governing that occu-**_

_**pancy.**_

**RELATED TOPICS:**

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**SECTION**

Jurisdiction

2-5

Access to Military Installations

3-2

Air Base Security Guards

3-3

Base Facilities Board

3-4

Base Security Council/Resource Protection Committee

3-5

Base Tours

3-6

Civilian Misconduct on Base

3-7

Civilian Warrants and Process - Service on Base

3-8

Commercial Solicitation on Base

3-9

Day Care Centers

3-10

Barment

3-11

Leases and Armory Use Agreements

3-12

Open Houses and Free Speech

3-13

Memoranda of Understanding (MOUs)

6-6

Arrest By Civilian Authorities

8-6

Arrests Authorized by the ANG

8-7

Inspections and Searches

8-16

Driving While Intoxicated and Other Offenses Involving Intoxication

8-17

Relationship with Other Military Components

11-6

Criminal Liability of Commanders for Environmental Violations

12-2

Environmental Duties at Base Level

12-3

Hazardous Waste Disposal

12-4

Air Traffic Control Operations: Authorization and Liability

13-3

Freedom of Expression – Restrictions on Military Members

14-13

Border Clearance - Arrival of Aircraft from OCONUS

15-3

Motor Vehicle Rules – Military Bases

21-6

Vehicle Registration

21-8

Morale, Welfare and Recreation (MWR) Facilities, Funds and Programs

22-4

Architect and Engineering Services

25-5

Construction at Armories

25-7

Contracting Pitfalls

25-8

Federal Government Property Furnished to the ANG

25-10

Fire Protection Jurisdiction

25-11

Quarters

25-16

Real Property – Acquisition and Retention

25-17

Reciprocal Fire Protection

25-18

United States Property and Fiscal Officer (USPFO)

25-20

Utilities

25-21

Training

26-2

905

_**Air National Guard Commander's Legal Deskbook**_

906

_**Chapter 25, Resources**_

_**Section 25-13 Issue Items and Equipment Turn-In**_

_**Page 1**_

**Issue Items and Equipment Turn-In**

**By Colonel Douglas R. Jacobson, May 2007**

**AUTHORITY:** AFI 23-111, _Management of Government Property in Possession of the Air Force_ (25 Jul 05); AFMAN 23-110, _USAF Supply Manual_ (1 Apr 07); AFMAN 23-220, _Reports of Survey for Air Force Property_ (1 Jul 96).

**ISSUED PROPERTY IS ACCOUNTABLE**

Each unit is responsible for controlling military property within its custody. Issuance of property to individuals or other

units should be documented. Individuals should know when the return of the property is expected and that they are re-

sponsible for it. Property management applies to each individual. Upon return, the property should be examined to verify

its condition. Property not returned or returned in a damaged condition may require processing a Report of Survey.

**USE OF GOVERNMENT PROPERTY**

Property management responsibilities limit the use of government property to official purposes only.

**FAILURE TO RETURN IT**

Problems arise when people are too busy to properly document the issuance and return of property, or they just get

sloppy. Ultimately, someone will inevitably face responsibility for lost or damaged property. In today's climate of shrink-

ing budgets, individuals are increasingly being held financially accountable when military property is not properly re-

turned and such a failure is not satisfactorily explained. The individual held liable may be the issuer or receiver depend-

ing on the records maintained. The individual may be held liable for the loss, damage, or destruction of the property re-

sulting from the individual's negligence, willful misconduct, or deliberate unauthorized use.

**RECOVERY**

A number of options are available to recover property (or at least the value of the property) from ANG members. Such

options range from administrative procedures, such as the Report of Survey process, to civil or criminal actions under

Federal or State law.

**SPREAD THE WORD**

Commanders need to periodically stress the importance of accountability for issued property. Personnel need to be ad-

vised by briefings, publications, or otherwise that personal liability for lost or damaged property can be a painful reality unless steps are taken to account for and maintain equipment properly.

_**KWIK-NOTE: Both givers and receivers of military property may be held accountable for its loss or damage. PROPER docu-**_

_**mentation can save you time and money.**_

**RELATED TOPICS:**

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**SECTION**

Preventive Law Program

17-5

Reports of Survey

25-19

_**Air National Guard Commander's Legal Deskbook**_

907

_**Chapter 25, Resources**_

_**Section 25-14 Loan of Air Force Equipment**_

_**Page 1**_

**Loan of Air Force Equipment**

**By Colonel Douglas R. Jacobson, May 2007**

**AUTHORITY:** AFMAN 23-110, _USAF Supply Manual_ (1 Apr 07); AFI 23-111, _Management of Government Property in Possession of the Air Force_ (1 Feb 96). 

## INTRODUCTION

Commanders may receive requests to borrow their equipment. These requests may come from civilian entities such as

schools. If you can loan the property to these entities, it fosters positive community relations. This topic discusses some

of the rules and procedures involved in loaning your property to others.

**GENERAL RULES**

All loans or custodial transfers of Air Force property must be in interests of National Defense or be in the general public

interest. Property cannot be loaned unless the property is not in use or is on a stand-by status. The title for all loaned

property remains with the Air Force and the loan or custodial transfer must be revocable at any time that it is considered

to be in the best interests of the Air Force or the National Guard. Aircraft generally CANNOT be loaned unless unusual

and compelling circumstances exist that involve immediate threats to the security of the United States.

**LOAN AND USE OF PROPERTY ISSUED TO THE AIR NATIONAL GUARD**

The policy for managing and using Federal property issued to the ANG is contained in AFI 23-111, which provides a

source of information and standard procedures for ANG organizations to use when loaning AF property for which they

have custody.

The ANG air commander is the approval authority for loans of property with non-depreciated stock list value not to ex-

ceed $100,000 for loan periods not to exceed 180 days.

The Adjutant General (AG) is the approval authority for loans of property with non-depreciated stock list value not to

exceed $1 million for loan periods not to exceed one year.

All requests for ANG loans of property exceeding the above limiting factors will be submitted through the AG to

ANGRC/LGS for processing to the appropriate AF approving official.

All loans/use of AF property issued to the ANG will be coordinated through the loan agreements that are executed IAW

the directives referenced in AFI 23-111. In emergency situations, this coordination may be accomplished after the loan is

effected.

All loans/use of AF property will be coordinated with the unit staff judge advocate.

Emergency requests for civil authorities, Federal or state, in support of civil requirements must be directed to ANGRC/

LGS for approval by ANGRC/CC. In emergency situations, obtain the name, agency, address, and telephone number of

the official requesting assistance. Also, obtain the borrower's agreement to reimburse the DOD if reimbursement is nec-

essary.

_**Air National Guard Commander's Legal Deskbook**_

908

_**Chapter 25, Resources**_

_**Section 25-14 Loan of Air Force Equipment**_

_**Page 2**_

_**KWIK-NOTE: Both givers and receivers of military property may be held accountable for its loss or damage. PROPER docu-**_

_**mentation can save you time and money.**_

**RELATED TOPICS:**

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**SECTION**

Aid to Civilian Authorities

6-2

Civic Organizations

6-3

Community Relations Programs

6-4

Federal Government Property Furnished to the ANG

25-10

Counterdrug Support Program

6-5

United States Property and Fiscal Officer (USPFO)

25-20

_**Air National Guard Commander's Legal Deskbook**_

909

_**Chapter 25, Resources**_

_**Section 25-15 National Defense Area**_

_**Page 1**_

**National Defense Area**

**By Colonel Mary A. Enges, February 2018**

**AUTHORITY: 5** 0 U.S.C. 797; AFI 31-101, _Integrated Defense_ (05 July 17); ANG Supplement 1 to AFI 31-101, **I** _ntegrated_ _Defense_ (13 Jan 14).

**USES AND EFFECTS**

Pursuant to Title 50, U.S. Code, Section 797 (a Defense property security regulation) as implemented by AFI 31-101 (as

of this writing, an FOUO document), in an emergency situation involving military property off-base, the senior DOD

(military) official at the scene is empowered to declare the scene of the emergency a National Defense Area.

This enables officials to control all aspects of the scene to protect the property in an emergency.

This declaration of non-DOD owned or controlled property as a National Defense Area may be deemed a "temporary tak-

ing" of private property for public use (although limited in scope and time) and the owner may later be compensated pur-

suant to the authority of the eminent domain clause of the 5th Amendment to the U.S. Constitution.

Considering the above and the potential resistance which may be encountered, the DOD official declaring the National

Defense Area should limit the area, in time and geography, and only take such actions as the emergency requires – keep-

ing in mind the first priority is the emergency. A National Defense Area can only be declared to protect classified informa-

tion or property. Once the classified material is removed, there is no further authority for the National Defense Area, al-

though there may still be other DOD property at the site.

50 U.S.C. 797(b) also requires the order declaring the area a National Defense Area be conspicuously posted. AFI 31-101

describes appropriate signs that should be used. These signs are the implementation of the order. It is suggested you ob-

tain preprinted iridescent "sticky-back" signs for use in the event you need them.

Because AFI 31-101 and its ANG supplement are FOUO, you will have to take extra steps to obtain copies. If you're not

already familiar with them, talk with your base force protection officer about what they entail, and read them.

It is also very important to ensure you coordinate all law enforcement activities in advance with the local civilian police.

In that respect, one of the best uses of civilian law authority is to designate them as the arresting mechanism for civilian violators. Maintaining minimal involvement with civilians will allow your full attention to focus on the emergency.

Further explanation of the use of the National Defense Area is in the " _AIRCRAFT ACCIDENTS AND SAFETY INVESTIGA-_

_TIONS OFF-BASE_ " topic in this _Deskbook_.

All commanders should consult with their Staff Judge Advocates in advance to coordinate the proper implementation of

the statute and regulations in establishing a National Defense Area.

_**KWIK-NOTE: Know how and when to use a National Defense Area.**_

**RELATED TOPICS:**

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**SECTION**

Disposal of Personal Property

1-11

Memoranda of Understanding (MOUs)

6-6

Arrest By Civilian Authorities

8-6

Deadly Force

8-18

_**Air National Guard Commander's Legal Deskbook**_

910

_**Chapter 25, Resources**_

_**Section 25-15 National Defense Area**_

_**Page 2**_

Classified Material

14-2

Claims

15-7

Aircraft Accidents and Safety Investigations Off-Base

16-2

Aircraft and Missile Accident Investigations and Reports

16-3

Lawsuits Against National Guard Personnel

18-6

Personal Liability of Federal and State Officials

18-9

Ambulance Response Off-Base

19-3

Federal Government Property Furnished to the ANG

25-10

Fire Protection Jurisdiction

25-11

_**Air National Guard Commander's Legal Deskbook**_

911

_**Chapter 25, Resources**_

_**Section 25-16 Quarters**_

_**Page 1**_

**Quarters**

**By Colonel Douglas R. Jacobson, May 2007**

**AUTHORITY:** AFI 34-246, _Air Force Lodging Program_ (17 May 01), Attachment 4; AFI 34-246/ANGSUP 1, Air Force Lodging Program (15 Sep 03).

****

## INTRODUCTION

****

This topic concerns your base providing quarters to eligible personnel.

**GENERAL PROCEDURES INFORMATION**

Air National Guard (ANG) installations may provide lodging accommodations (either on the installation or in commer-

cial lodging) for all eligible unaccompanied personnel requiring government lodging during inactive duty for training

(IDT) or annual training (AT) whenever possible. Eligible unaccompanied personnel are members of the unit who reside

beyond the established commuting area.

ANG installations should first use other military lodging accommodations within the surrounding area before securing

commercial lodgings for eligible unaccompanied personnel during IDT and AT.

TDY personnel to ANG installations will be lodged either on the installations where military accommodations are avail-

able or in commercial lodgings at their own expense.

Lodging at no expense to the eligible unaccompanied personnel is not a benefit guaranteed by the Air National Guard

and is contingent upon funding and is at the discretion of the installation commander.

The installation commander may establish a standard commuting area within the assigned local area. The following fac-

tors should be considered when establishing the standard commuting area: (1) the greatest distance that the full time air

technician/Active Guard/Reserve (AGR) employees and state employees customarily commute on a daily basis; (2) com-

muting areas that have been established by other issuing authorities at the same location (i.e., for active duty or other

Reserve units); (3) the types and condition of the highway systems and/or public transportation in the area; (4) one way

travel to the duty station.

All full time employees at ANG installations (AGRs and air technicians) are considered to be living within the commut-

ing distance.

**ELIGIBLE PERSONNEL**

Eligible unaccompanied personnel are members who reside outside the designated commuting distance and may use the

lodging accommodations at no expense for IDT and AT. The unit is not authorized to pay lodging for Guard members em-

ployed full time (AGR/air technician) for IDT or AT unless required by military necessity. The unit may authorize lodg-

ing accommodations for non-eligible Guard members at no cost to the members due to inclement weather.

On base or commercial lodging may be provided to eligible members arriving the night before the first IDT and AT.

**RESERVATIONS**

Authorized Guard members should advise the lodging manager at least 30 days in advance of their lodging requirement.

_**Air National Guard Commander's Legal Deskbook**_

912

_**Chapter 25, Resources**_

_**Section 25-16 Quarters**_

_**Page 2**_

This allows the Guard unit to secure the required rooms at a military lodging accommodation or at commercial lodging

establishments. Authorized Guard members wishing to share a room with ineligible dependents may do so provided

there is neither an additional cost to the government nor a reduction in needed occupancy.

**ASSIGNMENTS**

Married couples on duty status may be lodged together if private sleeping facilities and a private bathroom is available. In recognition of the need to accommodate the mission, these requirements are desired but not mandatory for deployment

and exercises. The commander may allow for single occupancy as space availability, financial constraint, and military ne-

cessity permit. Rooms will be assigned based upon rank.

**COORDINATION WITH ACTIVE DUTY BILLETING OFFICE**

Attachment 4 to AFI 34-246 sets forth requirements and establishes specific procedures for coordination between the

ANG unit and any servicing active duty base billeting office regarding billeting for eligible members and payment.

**CONCLUSION**

Units may find a need to publish a unit regulation in this area. If you have any questions about establishing the standard

commuting area or quarters, contact your Judge Advocate, Services Officer and Contracting Officer.

_**KWIK-NOTE: Special care is required because this is a potential Fraud, Waste and Abuse area. Quarters must only be pro-**_

_**vided to eligible personnel.**_

**RELATED TOPICS:**

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**SECTION**

AGR Program

11-4

Base Facilities Board

3-4

Contracting Pitfalls

25-8

Construction at Armories

25-7

Facilities - ANG

25-9

Fraud, Waste and Abuse

16-7

Inspections and Searches

8-16

Installations Jointly or Solely Occupied by the ANG

25-12

Relationship with Other Military Components

11-6

Reports of Survey

25-19

Smoking in Air National Guard Facilities

3-16

TDY and Travel

27-9

Utilities

25-21

USAF Instructions, ANG Supplements and Unit Instructions

1-39

_**Air National Guard Commander's Legal Deskbook**_ ****

913

_**Chapter 25, Resources**_

_**Section 25-17 Real Property - Acquisition and Retention**_

_**Page 1**_

**Real Property - Acquisition and Retention**

**By Colonel Douglas R. Jacobson, May 2007**

**AUTHORITY:** AFI 32-1024, _Standard Facility Requirements_ (31 May 94); AFI 32-9001, _Acquisition of Real Property_ (27 Jul 94); ANGI 32-1003, _Facilities Board_ (1 Jan 05).

**TYPES OF INTERESTS IN LAND**

Mission requirements may necessitate acquisition of an interest in real property. Some of the types of property interest

available are a fee simple ownership (full and unconditional ownership), lease (rental for a period of time), license (privilege to use land revocable at will), and easement (right of way).

**WHO ACQUIRES**

When the need for acquisition of a real property interest arises, only the minimum amount of real property needed to

meet these requirements will be permitted to be acquired. The Adjutant General (AG) will initially select the property.

The selection is subject to the concurrence of the NGB. Before the interest can be acquired, the National Guard Bureau

must determine whether the requirement can be met with a property interest currently available to the Guard.

Should a commander find the acquisition of a real property interest necessary, that acquisition should be coordinated

with the Judge Advocate's office at the outset of the acquisition process.

_**KWIK-NOTE: The State AG and NGB will determine what land or buildings will be acquired for an ANG unit. Don't act on**_

_**your own.**_

**RELATED TOPICS:**

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**SECTION**

Airport Joint Use Agreements

25-2

Base Facilities Board

3-4

Civil Associations and Military Corporations

22-2

Community Relations Programs

6-4

Contracting Pitfalls

25-8

Construction at Armories

25-7

Day Care Centers

3-10

Environmental Duties at Base Level

12-3

Facilities - ANG

25-9

Fire Protection Jurisdiction

25-11

Fraud, Waste and Abuse

16-7

Hazardous Waste Disposal

12-4

Inspector General

16-9

Installations Jointly or Solely Occupied by the ANG

25-12

Jurisdiction

2-5

Leases and Armory Use Agreements

3-12

Morale, Welfare and Recreation (MWR) Programs, Activities and Facilities

22-4

Quarters

25-16

Relationship with Other Military Components

11-6

United States Property and Fiscal Officer (USP & FO)

25-20

Utilities

25-21

_**Air National Guard Commander's Legal Deskbook**_

914

_**Chapter 25, Resources**_

_**Section 25-18 Reciprocal Fire Protection**_

_**Page 1**_

**Reciprocal Fire Protection**

**By Colonel Douglas R. Jacobson, May 2007**

**AUTHORITY:** 42 U.S.C. 1856; AFI 32-2001, _The Fire Protection Operations and Fire Prevention Program_ (1 Apr 99); ANG Supplement 1 to AFI 32-2001 (8 Oct 99); 44 C.F.R. Part 151, _Reimbursement for Costs of Firefighting on Federal Property_ ; applicable state law. 

## INTRODUCTION

Air National Guard fire protection organizations may cooperate with other local military or civilian fire departments,

whenever feasible, to enhance mutual fire protection capabilities. This cooperation may result in agreements between the

ANG and other fire departments. Entering into these agreements is encouraged, because it enhances community rela-

tions, and may save the civilian or other military fire department from purchasing specialized equipment the local ANG

base already has.

**MUTUAL AID OR RECIPROCAL AGREEMENTS**

Mutual aid or reciprocal fire protection agreements are agreements in principle between two departments (one military,

one civilian) to assist each other upon request. Mutual aid or reciprocal agreements are authorized by 42 U.S.C. 1856

and AFI 32-2001/ANG Supp. 1 to be negotiated between an ANG fire department(s) and municipal fire department(s)

located within the geographical area surrounding an ANG installation. Any fire department having a mutual aid or recip-

rocal agreement with surrounding jurisdictions must have radio communications with that agency. Attachment 4 to AFI

32-2001 sets forth an _Agreement For Mutual Aid In Fire Protection And Hazardous Materials Incident Response_ that can be used as a sample.

**WAIVER OF CLAIMS AND INDEMNIFICATION**

The parties to the mutual aid or reciprocal fire protection agreements, as required by 42 U.S.C. 1856 and AFI 32-2001/

ANG Supp. 1, must mutually waive all compensation for loss, damage, personal injury, or death from the negligent party

occurring in consequence of the performance of such agreement. These agreements may provide however, for the reim-

bursement, by the party issuing the call for assistance, of any costs incurred by the responding party.

State law must be consulted to determine if any conflicts exist between it and the provisions of 42 U.S.C. 1856 and AFI

32-2001/ANG Supp. 1 regarding mutual waiver of compensation for loss, damage, personal injury or death occurring in

consequence of the performance of the mutual aid or reciprocal fire protection agreement, and regarding reimbursement

by the department issuing the call for assistance of any and all costs incurred by the responding fire department. For ex-

ample, your state law may require each fire department be responsible for its own negligence and that the two fire depart-

ments that are parties to the reciprocal fire protection agreement cannot waive their right to be compensated from the

negligent party. If there is a conflict between state law and federal law in this area, the federal law will supersede state law because of the Supremacy Clause of the U.S. Constitution. The Supremacy Clause has generally been interpreted to

mean that where the federal and state governments each have a valid law in the same area, when the two laws conflict,

the federal law will control. In such event, your state law may need to be amended to permit these reciprocal fire protec-

tion agreements to be entered into pursuant to the requirements of 42 U.S.C. 1856 and AFI 32-2001/ANG Supp. 1.

Attachment 6 to AFI 32-2001/ANG Supp. 1 provides a Release of Claims and Indemnification Clause for Civil Airport

Joint-Use Agreements to be used for ANG installations. The required clause is as follows:

"(Name of Airport Operator) agrees to release, acquit, and forever discharge the United States its officers, agents, em-

ployees and State of (STATE) employees for all liability arising out of or connected with the use of United States equip-

_**Air National Guard Commander's Legal Deskbook**_

915

_**Chapter 25, Resources**_

_**Section 25-18 Reciprocal Fire Protection**_

_**Page 2**_

ment, personnel, State of (STATE) employees, for fire control, crash, and rescue activities at or in the vicinity of (name of airport), and (name of airport operator) further agrees to indemnify, defend, and hold harmless the United States its officers, agents, employees, and State of (STATE) employees against any and all claims, of whatever description, arising out

of or connected with such use of United Sates equipment or personnel, and State of (STATE) employees. The agreements

contained in the preceding sentence do not extend to claims arising out of or connected with services rendered solely for

the protection of United States property, personnel, or State of (STATE) employees, or to claims for damages caused

solely by the negligence or willful misconduct of officers, agents, employees of the United States or State of (STATE) em-

ployees, without contributory fault on the part of any person, firm, or corporation; provided, however, that insofar as this paragraph may be consistent with the waiver or claims provisions contained in any reciprocal agreement for mutual aid

in furnishing fire protection heretofore or hereafter entered into by the lessor with any agency of the United States pursu-

ant to Public Law 84-46 (42 U.S.C. 1856, et seq.), the rights and obligations of the parties shall be governed by said

waiver of claims provision and not by this paragraph."

**FIRE PROTECTION PREVENTION POLICY**

The Civil Engineer of the ANG (ANG/CE) will execute the fire protection and prevention policy for the ANG. ANG/

CEXF is the MAJCOM office for ANG Fire Protection.

The Staff Judge Advocate should be consulted whenever a mutual aid or reciprocal agreement for fire protection is being

considered.

_**KWIK-NOTE: These agreements are excellent for community relations since they usually save the local community from pur-**_

_**chasing equipment the local ANG unit already has.**_

**RELATED TOPICS:**

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****

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****

****

****

**SECTION**

Aid to Civilian Authorities

6-2

Aircraft Accidents and Safety Investigations Off-Base

16-2

Aircraft and Missile Accident Investigations and Reports

16-3

Airport Joint Use Agreements

25-2

Ambulance Response Off-Base

19-3

Base Security Council/Resource Protection Committee

3-5

Training

26-2

Aerial Events, Flyovers and Static Displays

13-2

Air Traffic Control Operations: Authorization and Liability

13-3

Civic Organizations

6-3

Community Relations Programs

6-4

Fire Protection Jurisdiction

15-11

Indemnification Agreements

18-4

Installations Jointly or Solely Occupied by the ANG

25-12

Jurisdiction

2-5

Loan of Air Force Equipment

25-14

Memoranda of Understanding (MOUs)

6-6

National Defense Area

25-15

Posse Comitatus

6-7

Relationship with Other Military Components

11-6

Relief from Civil Liability

18-10

_**Air National Guard Commander's Legal Deskbook**_

916

_**Chapter 25, Resources**_

_**Section 25-19 Reports of Survey**_

_**Page 1**_

**Reports of Survey**

**Updated By Colonel Mary A. Enges, January 2016**

**AUTHORITY:** AFMAN 23-220, _Reports of Survey for Air Force Property_ (1 Jul 96); _see_ MAJCOM supplements. 

## INTRODUCTION

Various statutes govern the authority and accounting for government property lost, damaged, or destroyed and the fixing

of responsibility and liability through the Report of Survey (ROS) system. Chapter 1 of the above-referenced AFMAN

sets out the various statutes and DoD publications that provide the basis for the ROS system.

**PURPOSE**

A Report of Survey is a way of determining and assessing liability against a military member or employee responsible for

the loss, damage, or destruction of Air Force property proximately caused by their negligence, willful misconduct, or de-

liberate unauthorized use. It serves as the basis for the government's claim for restitution.

The underlying premise of the ROS system is "The buck stops here!"

Chapter 22 of AFMAN 23-220 provides ROS procedures unique to the ANG. All ANG personnel, including civilian em-

ployees, active guard and reserve (AGR), and Title 32 military technicians are responsible at all times for the proper care

and safekeeping of United States property. ANG commanders are responsible for the real and personal government prop-

erty under their control. Financial liability for property issued by the United States to the ANG that is lost, damaged or

destroyed may be assessed as follows:

1. _Against an ANG member_ when the loss, damage, or destruction is caused by the member's negligence or willful misconduct in performing ANG military duties or as a result of deliberate unauthorized use of the property;

2. _Against the state_ when the loss, damage, or destruction is incident to duty or activity under the laws of and in direct support of the authorities of the state regardless of who was actually using the property at the time;

3. _Against the full-time employee_ (civilian, AGR, or military technician) incident to employment as an ANG employee when the loss, damage, or destruction was caused by negligence, willful misconduct or deliberate unauthorized use of property.

Financial liability against an individual will be assessed only after an official investigation has been conducted specifically for the purpose of determining the facts and circumstances related to the loss, damage or destruction of property.

Liability is based upon the preponderance of the evidence. Financial liability cannot be assessed unless, after considering

all relevant factors, it appears more likely than not that an individual's actions, or failure to act, constituted negligence, willful misconduct, or deliberate unauthorized use, and proximately caused the loss, damage, or destruction at issue. If

the weight of the evidence does not support either side, an individual is not held liable. This simple negligence standard

does not apply to damaged, lost, or stolen vehicles. In those instances, the gross negligence standards apply. Chapter 18

of AFMAN 23-220 contains guidance and procedures pertaining to vehicles.

Assessment of financial liability will not be used instead of, or as a form of, disciplinary action. Commanders must de-

cide if a case warrants taking disciplinary action under the state military code or Uniform Code of Military Justice

(UCMJ), as applicable. This is a separate action and is not related to the assessment or non-assessment of financial liabil-

ity. Also, commanders are encouraged to use administrative actions when assessment of financial liability by ROS is not

practical or desirable.

_**Air National Guard Commander's Legal Deskbook**_

917

_**Chapter 25, Resources**_

_**Section 25-19 Reports of Survey**_

_**Page 2**_

**ROS MAY BE MANDATORY**

A ROS may be mandatory in some situations and not mandatory in others. Chapter 3 of AFMAN 23-220 provides details

regarding when a ROS is mandatory and when a ROS is not mandatory.

**GENERAL PROCEDURES FOR PROCESSING A ROS (DD FORM 200)**

When property is lost, damaged, or destroyed by an individual or an organization, the organization with possession of

the property will initiate the ROS. The unit commander will appoint an investigating officer who will determine the facts

in the case. The investigating officer must be "disinterested" and have no interest in the custodianship, care, accountabil-

ity, or safekeeping of the property. Further, when appointed as investigating officer, the completion of the investigation

becomes a primary duty and the officer will be relieved of other duties or assignments that would interfere with the inves-

tigation. The investigating officer, at a minimum, will answer the following six questions: what happened, how, where,

and when; who is involved, and whether there is evidence of negligence, misconduct, or deliberate unauthorized use or

disposition of the property. The investigating officer, based on the facts, makes findings and recommendations on the is-

sue of liability of the person(s) involved.

The next step is to refer the ROS to the accountable officer so that the records may be adjusted. Next, the investigating

officer allows the person(s) involved to review the case and provide verbal or written information to refute the findings

and recommendations. The ROS is then processed to the appointing authority for assignment of financial responsibility

against the individual(s) charged or for relief from responsibility. If financial responsibility is to be assessed, the ROS

will be referred to the Staff Judge Advocate for review.

The SJA has the duty to review the Report of Survey for legal sufficiency. That duty includes ensuring the investigating

officer has interviewed all necessary witnesses, obtained answers to all questions which would affect the liability issues,

and obtained all necessary documents and photographs. As your attorney, the SJA knows what information is necessary

in the Report of Survey to properly fix liability upon a member or exonerate the member from liability.

If the investigating officer has not performed a thorough job, the ROS should be returned for re-accomplishment. In

some cases the appointing authority may appoint a financial liability officer to re-investigate the case. This is a second

investigation and is performed when it is necessary to reevaluate the initial investigation or because of the complicated

nature of the case. Upon conclusion of these actions, the approving authority reviews the ROS and assigns financial re-

sponsibility or relieves the individual(s) of responsibility.

If loss, damage or destruction of property resulted from the negligence, willful misconduct, or deliberate unauthorized

use of two or more persons, they are held jointly and severally (individually) liable for the full amount of loss or damage.

Each person held liable jointly and severally with others is legally liable for the entire amount of the charge regardless of the extent of each person's involvement. As a practical matter, the damages are shared among the persons found liable.

**ANG APPROVING AND APPOINTING AUTHORITIES**

The Assistant Deputy Adjutant General - Air is the approving and appointing authority except where possible state liabil-

ity is involved. The Assistant Deputy Adjutant General--Air or the Director, Air National Guard, may delegate this author-

ity to the United States Property and Fiscal Officer (USPFO). The ANG approving and appointing authority takes action

on all ROS for United States property issued to the ANG that is lost, damaged, or destroyed and designates in writing

the officer or individual responsible for administering the ROS program.

ROS involving state liability are forwarded through the Adjutant General or designee, for comments, to the appropriate

air directorate division for property (NGB/LG), real property (NGB/DE), or fiscal (NGB/FM). The appropriate air direc-

torate division provides comments and, or recommendations and forwards through the legal office (NGB/JA) to the Di-

rector, Air National Guard (NGB/CF), who has final approval and disapproval authority.

_**Air National Guard Commander's Legal Deskbook**_

918

_**Chapter 25, Resources**_

_**Section 25-19 Reports of Survey**_

_**Page 3**_

**COLLECTION FROM STATES, ANG MEMBERS, AND TECHNICIANS**

Where the state is held liable, the approving authority (Director, Air National Guard) directs the appropriate adjutant

general to initiate collection action for the entire loss to the United States Government. Liability charged to a state is

paid from state funds, or from any other non-federal funds. When the state is found jointly and severally liable with one

or more ANG members or technicians, the state's liability is equal to that of the ANG members or technicians. Collec-

tions from ANG members and ANG technicians are accomplished as prescribed in Chapter 16.

**ROS APPEAL**

ANG members or employees and states may appeal ROS which assess financial liability. A ROS that assesses financial

liability and is appealed by an ANG member or employee is forwarded to the Assistant/Deputy Adjutant General - Air or

designee, who either: approves the appeal and directs relief from the financial liability or disapproves the appeal and for-

wards it to the legal officer for review and recommendation to the State Adjutant General who has final approval and dis-

approval authority.

A Report of Survey that assesses financial liability and is appealed by a state, either solely or jointly, with an ANG mem-

ber or employee, is forwarded to the National Guard Bureau legal office, (NGB/JA) for review and recommendation to

the Director, Air National Guard, (NGB/CF) who either: approves the appeal and directs relief from the pecuniary liabil-

ity or disapproves the appeal and forwards the ROS to the Chief, National Guard (NGB/CC) who has final approval and

disapproval authority.

_**KWIK-NOTE: Reports of Survey are serious business. Unit members found negligent for the loss, damage or destruction of**_

_**government property will pay for their negligent behavior.**_

**RELATED TOPICS:**

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**SECTION**

Remission and Waiver of Indebtedness

1-33

Theft and Vandalism Claims

8-19

Aircraft and Missile Accident Investigations and Reports

16-3

Investigations and Inquiries

16-11

Legal Assistance Program

17-8

Legal Assistance to Unit Members and the Role of the Judge Advocate to the Commander

17-9

Legal Reviews

17-11

Claims

18-2

Personal Liability of Federal and State Officials

18-9

Motor Vehicle Accident Reporting

21-5

Federal Government Property Furnished to the ANG

25-10

Issue Items and Equipment Turn-In

25-13

Loan of Air Force Equipment

25-14

United States Property and Fiscal Officer (USPFO)

25-20

_****_

_****_

_****_

_**Air National Guard Commander's Legal Deskbook**_

919

_**Chapter 25, Resources**_

_**Section 25-20 United States Property and Fiscal Officer (USPFO)**_

_**Page 1**_

**United States Property and Fiscal Officer (USPFO)**

**By Colonel Mary A. Enges, January 2016**

**AUTHORITY:** 32 U.S.C. Chapter 708, _Property and Fiscal Officers_ ; DoD Dir 5105.77, National Guard Bureau (May 21, 2008); DoDI 1200.18, _The United States Property and Fiscal Officer (USPFO) program_ (7 Jun 2007); NGR 130-6/ANGI 36-2, _United States Property and Fiscal Officer Appointment, Duties, and Responsibilities_ (1 Jul 2007).

**BACKGROUND AND AUTHORITY**

In each state, a sole officer of the ANG or ARNG, nominated by state authorities and approved by the Secretary of the

Air Force or Army, as appropriate, serves on active duty under 10 U.S.C. 12301(d) as the United States Property and Fis-

cal Officer for that state, territory, commonwealth or district. The USPFO services as the Title 10 "bridge" between the

Executive Branch and the state National Guard. The USPFO serves as a personal staff officer to the Adjutant General, as

a source of official advice and counsel regarding the authorized and legal use of federal funds and resources provided to

the state's National Guard. Wherever possible, the legal path to "yes" should characterize the successful TAG-USPFO

relationship. In sum, USPFOs are responsible to provide unbiased advice and assistance to TAG in support of the priori-

ties and programs of the state and units of the ARNG and ANG.

Though Congress passed the first Militia Act on 8 May 1792, "establishing a uniform militia throughout the United

States," it wasn't until January 1903 with the passage of the Dick Act that substantial federal funding was provided to

the National Guard to ensure pay, discipline, and armament on par with that provided the Army. When federal funding

and property were lost in certain states, a section of the National Defense Act of 1916 created a full-time civilian position in each state known as the property and disbursing officer of the United States (USPDO), the forerunning of today's

USPFO. The U.S. Property and Officer Act became law on 6 July 1954, and is codified as 32 U.S.C. 708.

**FEDERAL AND STATE DUTIES**

Appointed for an initial six-year tour, the USPFO's duties and authority are governed by law and applicable regulations,

and can be summarized as follows:

1. Receives and accounts for all federal funds and property of the United States Government issued to the National

Guard and in possession of a specified state, ensuring federal funds are obligated and expended in accordance with appli-

cable laws and regulations;

2. Provides financial and logistical resources for monitoring federal property in a state's custody;

3. Provides advice and assistance to entities within the state to assure proper usage of federal property in accordance

with applicable regulations; and

4. Manages the federal logistics support system for the state and, if mobilized, provides the mobilized unit with neces-

sary support for transition into active-duty status.

Decentralization of some duties of the USPFO is permitted, but the USPFO retains authority, responsibility, and account-

ability for federal funds and property within the state. If the USPFO has delegated some duties to an Assistant USPFO

(ANG), commanders must be aware that although the Assistant USPFO is responsible to the commander, that Assistant

is also responsible to the USPFO when functioning within the authority delegated by the USPFO. If the USPFO is absent

from the assigned duty station for more than 30 consecutive days, an acting USPFO must be appointed under Title 10.

The desires and enthusiasm of a commander cannot replace the fundamental requirements of the law and regulations

that govern the USPFO and any delegated operations.

_**Air National Guard Commander's Legal Deskbook**_

920

_**Chapter 25, Resources**_

_**Section 25-20 United States Property and Fiscal Officer (USPFO)**_

_**Page 2**_

The USPFO is responsible for several other major duties, which include serving as the head of the federal contracting ac-

tivity within the state or territory and as the primary competition advocate for those activities. In addition, the USPFO

serves as the Grants officer, Transportation officer, Payroll Certifying officer and the audit focal point.

**USPFO RELATIONSHIP WITH ANG**

USPFOs are direct representatives of the Chief, NGB, and also serve as personal staff officers to the Adjutant General in

support of the priorities and programs of the state and ARNG as well as ANG units. The wing commander should meet

regularly with the USPFO, and the assistant USPFOs for Air and Contracting should do the same. The wing commander

should invite the USPFO to FMBs, FUBs and even staff meetings. USPFOs serve as advisors to all service officers within

the state. Thus, JAGs and ANG commanders at all levels should familiarize themselves with the duties and responsibili-

ties of USPFOs, and their relationship with their commanders' organizations. Questions regarding the scope of authority

or functions of the USPFO should be directed to your Staff Judge Advocate.

_**KWIK-NOTE: The USPFO receives and accounts for all federal money and property in the state.**_

**RELATED TOPICS:**

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****

****

****

**SECTION**

Base Facilities Board

3-4

Ethics

7-3

Preservation of Historic Properties

12-5

Fraud, Waste and Abuse

16-7

Inspector General

16-9

Personal Liability of Federal and State Officials

18-9

Morale, Welfare and Recreation (MWR) Programs, Activities and Facilities

22-4

Computer Acquisition and Security

25-6

Air National Guard Construction

25-7

Contracting Pitfalls

25-8

ANG Facilities

25-9

Federal Government Property Furnished to the ANG

25-10

Installations Jointly or Solely Occupied by the ANG

25-12

Issue Items and Equipment Turn-In

25-13

Loan of Air Force Equipment

25-14

Quarters

25-16

Real Property – Acquisition and Retention

25-17

Reports of Survey

25-19

_**Air National Guard Commander's Legal Deskbook**_

921

_**Chapter 25, Resources**_

_**Section 25-21 Utilities**_

_**Page 1**_

**Utilities**

**By Colonel Mary A. Enges, January 2018**

**AUTHORITY:** AFI 32-1061, " _Providing Utilities to U.S. Air Force Installations_ " (27 Jan 16; CA applied on 25 Aug 16); Federal Acquisition Regulation (FAR), 48 C.F.R. Part 41, _Acquiring Utility Services_ ; Department of Defense supplement

(DFARS) Part 241, _Acquisition of Utility Services_ ; state-specific Cooperative Agreement; applicable state law and regulation; local utility provider policy; state-specific Public Services Commission. 

## INTRODUCTION

U.S. Air Force energy strategy has changed significantly over the past decade, expanding the manner in which ANG instal-

lations obtain power and other utility services for a fair and reasonable price. Resilient, cost-effective, cleaner power has become the desired goal. Because of the intricacies in managing, supplying, purchasing and selling utility services and

commodities on ANG facilities, make use of not only your base energy manager and SJA, but also higher headquarters

offices like the Air Force Civil Engineer Center (AFCEC), well-skilled in navigating this extremely complex area.

Utilities don't just include electricity. Utility services in particular also include gas, water, steam and sewage. They in-

clude garbage collection and snow removal where these services are subject to public regulation. As part of energy resil-

iency, bases have become "a system of systems," focused on water, facilities, communications and support services.

This topic applies only to the purchase of utilities with appropriated funds.

**HOW SERVICES ARE ACQUIRED**

The National Guard can purchase utility services by making an order under an area-wide General Services Administra-

tion (GSA) utility contract. When no area-wide contract is available or when it can be determined that more advanta-

geous arrangements are available, the National Guard can negotiate a separate procurement contract with the utility pro-

vider.

**RATE INCREASES**

When a utility proposes to increase service rates, the National Guard must determine whether the increase is reasonable,

justified and nondiscriminatory. When the increase is unreasonable, unjustified or discriminatory, the base may choose

to become involved in the regulatory process that approves or disapproves the rate increase. In this event, involve ANG/

CE and the Utility Rates Management Team ( _formerly_ the Utility Law Field Support Center), based within the AFCEC at

Tyndall AFB, FL, for assistance. The URMT routinely negotiates significant savings on utility contracts when rate in-

creases are proposed, typically by the utility through the state's utility or public services commission.

When a rate increase is proposed by a utility that is subject to public regulation, and when the increase is not objection-

able, the utility contract will be amended by a change order to adopt the new rates. Where the utility is not subject to

public regulation, the contract will be modified by supplemental agreement after negotiating with the utility provider.

**A TEAM APPROACH**

With the cost of utilities ever increasing, and in many instances paid directly from operations and maintenance budgets,

it pays to involve an expert team to obtain utility services. Rely on not only your base energy manager and base civil engi-

neer, but when necessary, don't hesitate to call upon your contracting office, facility manager, state military department,

Utility Rates Management Team, Air Force Civil Engineer Center (AFCEC) and SAF General Counsel (SAF/GCN) with

expertise in energy and the environment.

_**Air National Guard Commander's Legal Deskbook**_

922

_**Chapter 25, Resources**_

_**Section 25-21 Utilities**_

_**Page 2**_

_**KWIK-NOTE: Many utility services purchased for ANG facilities are coordinated through a team approach with higher**_

_**headquarters.**_ ****

**RELATED TOPICS:**

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****

****

**SECTION**

Environmental Duties at Base Level

12-3

Hazardous Waste Disposal

12-4

Contracting Pitfalls

25-8

Facilities - ANG

25-9

Quarters

25-17

_**Air National Guard Commander's Legal Deskbook**_

923

_**Chapter 25, Resources**_

_**Section 25-22 Cooperative Agreements**_

_**Page 1**_

**Cooperative Agreements**

**By Colonel Mary A. Enges, January 2018**

**AUTHORITY:** DoD Directive 3210.06, _Defense Grant and Agreement Regulatory System_ (DGARS) (6 Feb 14 incorporating Change 1, 28 August 17); _The Federal Grant and Cooperative Agreement Act of 1977_ (31 U.S.C 63); _Department of Defense Grant_ _and Agreement Regulations_ (32 C.F.R. Chapter I, Subchapter C and 2 C.F.R. Chapter XI); applicable state law. 

## INTRODUCTION

Funding by the United States for the ANG's performance of its federal mission is provided through a variety of statuto-

rily authorized means including military pay, issuance and repair of equipment and supplies through the supply system

and construction of ANG facilities. A substantial portion of funding for the operation and maintenance of the ANG is pro-

vided to states by NGB through cooperative agreements.

By definition, a cooperative agreement is a legal instrument used to enter into the same kind of relationship as a grant,

except that substantial involvement is expected between the DoD and the state when carrying out the activity contem-

plated by the cooperative agreement. A grant, on the other hand, is a legal instrument used to enter into a relationship,

the principal purpose of which is to transfer a thing of value to the state to carry out a public purpose of support author-

ized by a law of the United States, rather than to acquire property or services for the DoD's direct benefit or use. Further, it is a relationship in which substantial involvement is not expected between the DoD and the state when carrying out

the activity contemplated by the grant.

Cooperative agreements are non-procurement contracts between NGB and the State Military Department meeting the

DOD Grant and Agreement Regulations, found in the cited C.F.R.s. These agreements must be considered to be arms-

length business transactions between the states and the United States; the ANG commander is on the state side of that

relationship. In many cases, funds may also be provided to a state by a Military Construction Cooperative Agreement for

the state's construction of ANG facilities. The ANG may also receive funds for special military or civilian programs coop-

erative agreements if Congress or DoD authorizes such agreements.

**ANG O &M COOPERATIVE AGREEMENTS **

Each state has a Master O&M Cooperative Agreement that includes funding of both ARNG and ANG O&M activities.

Besides the Master Cooperative Agreement, each state also maintains appendices both common and unique to its respec-

tive state requirements.

The Master Cooperative Agreement is usually executed by the TAG or other official as required by state law, on behalf of

the state, and the USPFO, on behalf of the United States. ANG O&M Activities are included and budgeted for in the Mas-

ter Agreement by the inclusion of specific appendices in the Agreement. In the case of the ANG, the Master Cooperative

Agreement will usually contain at least ANG Real Property, Environmental, Security and Fire Protection Appendices.

The state performs its obligations under the Master Cooperative Agreement by hiring state employees or entering into

state contracts for the functions and activities to be performed. In some cases, as will be detailed in the applicable appendix and Agreement funding terms, NGB may contribute only a part of the funds required with the state being required to

make up the difference (the "state share"). As a matter of business judgment and efficiency, the USPFO and the state

may agree that NGB will contribute some services, supplies or equipment "in-kind" for the state's performance of the

cooperative agreement rather that simply reimbursing the state's cost. In such a circumstance, the cost of the "in-kind"

contribution will be calculated for the purposes of determining the federal contribution under the cooperative agreement

and calculation of the state share of the total cost.

_**Air National Guard Commander's Legal Deskbook**_

924

_**Chapter 25, Resources**_

_**Section 25-22 Cooperative Agreements**_

_**Page 2**_

**INPUT**

The ANG commander is an integral part of the state team for cooperative agreements. The ANG commander should be

aware of, and participate in, the development of the ANG appendices to the Master Cooperative Agreement. He or she is

a key individual in managing the state's performance of the Agreement, financial management of the Agreement and

proper billing to NGB under the Agreement.

In addition, the ANG commander may manage state employees performing the Agreement and participate in state acqui-

sitions under the Agreement. All these activities require the commander to employ state legal resources and the SJA to

ensure compliance with state law, regulations and procedures and to ensure the state's compliance with the terms, condi-

tions and requirements of the Master Cooperative Agreement.

Because NGB is prohibited by law from reimbursing a state's indirect costs under cooperative agreements, an ANG com-

mander may be required to budget for such costs. The state share may be stated in the Agreement as part of the state

budget system; or, the Agreement may require management of such costs as required by a state financial management

system.

As a final note, though grants or cooperative agreements are considered non-procurement instruments, they may not be

employed as a shortcut of sorts to the federal contracting system. It must be underscored that grants and cooperative

agreements must be awarded through competition in every case in which statute requires competition and to the maxi-

mum extent practicable in all other cases.

_**KWIK-NOTE: An ANG commander must be aware of the terms, conditions and funding in the NGB Master O &M Coopera-**_

_**tive Agreement and other cooperative agreements between NGB and the state as they pertain to the unit or installation. The**_

_**commander must also manage the state's performance of the Cooperative Agreement. To do this, the ANG commander must**_

_**employ Judge Advocate resources to ensure compliance with applicable state and federal law and regulation.**_

**RELATED TOPICS:**

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****

****

****

****

**SECTION**

United States Property and Fiscal Officer (USPFO)

25-20

_**Air National Guard Commander's Legal Deskbook**_

925

_**Chapter 25, Resources**_

_**Section 25-G1 Glossary of Construction Terms**_

_**Page 1**_

**Glossary of Construction Terms**

**Updated by Colonel Mary A. Enges, January 2016**

**AUTHORITY:** ANGI 32-1023, _Designing and Constructing Military Construction Projects_ (19 Nov 15).

_**Abbreviations and Acronyms**_

**AAFES**

Army and Air Force Exchange Service; now known as the "Exchange"

**ACES-PM** Automated Civil Engineering System Project Management (or the Current Air Force Civil Engineer

ing Information Management System)

**ADP**

Area Development Plan ****

**A-E**

Architect-Engineer ****

**AFFARS**

Air Force Federal Acquisition Regulation Supplement ****

**AFRC**

Air Force Reserve Command ****

**ANG**

Air National Guard ****

**NGB**

National Guard Bureau ****

**USPFO**

United States Property and Fiscal Officer ****

**AFSVA**

Air Force Services Agency ****

**AMRS**

Advanced Meter Reading System ****

**ASTM**

American Society for Testing and Materials ****

**AT**

Antiterrorism ****

**BCE**

Base Civil Engineer ****

**BCP**

Base Comprehensive Plan ****

**BOD**

Beneficial Occupancy Date ****

**BRAC**

Base Realignment and Closure ****

**CA**

Construction Agent ****

**CCB**

Construction Criteria Base ****

**CCD**

Customer Concept Document ****

**CERCLA**

Comprehensive Environmental Response, Compensation, and Liability Act

**CFR**

Code of Federal Regulations

**CONUS**

Continental United States ****

**CQC**

Contractor Quality Control ****

**CWE**

Current Working Estimate ****

**DA/CA**

Design Agent/Construction Agent ****

**D-B**

Design-Build ****

**DeCA**

Defense Commissary Agency ****

**DFARS**

Defense FAR Supplement ****

**DI**

****

Design Instruction ****

**DLA**

Defense Logistics Agency ****

**DM/CM**

Design Manager/Construction Manager ****

**DoD**

Department of Defense ****

**DoDEA**

Department of Defense Education Activity

**EA**

Environmental Assessment

**EBS**

Environmental Baseline Surveys

**EIAP**

Environmental Impact Analysis Process

**EISA**

Energy Independence and Security Act of 2007

**EO**

Executive Order

**EPA**

Environmental Protection

_**Air National Guard Commander's Legal Deskbook**_

926

_**Chapter 25, Resources**_

_**Section 25-G1 Glossary of Construction Terms**_

_**Page 2**_

**EPF**

Environmental Planning Function

**ETL**

Engineering Technical Letter

**ESEP**

Engineering Senior Executive Panel

**FAR**

Federal Acquisition Regulation

**FBO**

Federal Business Opportunities ("FedBizOpps")

**FEMP**

Federal Energy Management Program

**FOA**

Field Operating Agency

**FONSI**

Finding of No Significant Impact

**FY**

****

Fiscal Year

**GPP**

Green Procurement Program

**HFD**

Health Facilities Division

**IDIQ**

Indefinite Delivery/Indefinite Quantity

**LBP**

Lead-Based Paint

**MAJCOM** Major Command

**MFH**

Military Family Housing

**MILCON** Military Construction

**MTF**

Medical Treatment Facility

**NAF**

Non-appropriated Funds

**NAVFAC** Naval Facilities Engineering Command

**NEPA**

National Environmental Policy Act

**NIST**

National Institute of Standards and Technology

**OASD/TMA** Office of the Assistant Secretary of Defense (Health Affairs)/ TRICARE Management Activity

**ODS**

Ozone Depleting Substances

**OPR**

Office of Primary Responsibility

**OSHA**

Occupational Safety and Health Administration

**P &D **

Planning and Design

**P-341 Funds** Construction Funds for Minor Construction Projects

**PA**

Programmed Amount

**PB**

****

Project Book

**PCR-I &II **Planning Charrette Report Levels I & II

**PDT**

Project Delivery Team

**PI**

****

Planning Instruction

**PgMP HAF (A7CF)** AFCEC Program Management Plan for Air Force MILCON Execution

**PMP**

Project Management Plan

**POM**

Program Objective Memorandum

**QC**

Quality Control

**RD**

Requirements Document

**SME**

Subject Matter Expert

**SECAF**

Secretary of the Air Force

**UFC**

Unified Facilities Criteria

**UFGS**

Unified Facilities Guide Specifications

**UMMC**

Unspecified Minor Military Construction

**USACE**

U.S. Army Corps of Engineers

**USGBC**

United States Green Building Council

**VE**

Value Engineering

**WBDG**

Whole Building Design Guide

_**Air National Guard Commander's Legal Deskbook**_

927

_**Chapter 25, Resources**_

_**Section 25-G1 Glossary of Construction Terms**_

_**Page 3**_

_**Terms**_

**A-E Slate:** A ranked list of A-E finalists under consideration for contract.

**ACES-PM:** –Automated Civil Engineering System-Project Management (or the Current Air Force Civil Engineering Infor-

mation Management System): ACES-PM is the current acronym for the data management system currently used by the

Air Force. However, ACES-PM will eventually be replaced by NextGen IT/Tririga (or a similar replacement system).

**Construction Agent (CA):** The DoD component responsible for the technical execution of project construction. For Air

Force MILCON projects, the CA is either U.S. Army Corps of Engineers (USACE), Naval Facilities Engineering Com-

mand (NAVFAC), or, for approved projects, AFCEC.

**Construction Manager (CM):** The Air Force organization designated to manage construction, provide Air Force inter-

face with the CA, and provide updates on construction milestones to the Air Staff and major commands for specific pro-

jects.

**Construction Management Plan (CMP):** Plan developed to identify and prescribe organizational responsibilities, man-

agement procedures, and approval processes in detail.

**Contracting Officer (CO):** "Contracting Officer" means a person with authority to enter into, administrative, and/or

terminate contracts and make related determinations and findings. The term includes certain authorized representatives

of the contracting officer acting within the limits of their authority as delegated by the contracting officer. "Administra-

tive Contracting Officer (ACO)" refers to a contracting officer who is administering contracts. "Termination contracting

officer (TCO)" refers to a contracting officer who is setting terminated contracts. A single contracting officer may be re-

sponsible for duties of any or all of these areas.

**Design Agent (DA):** The DoD component responsible for technical execution of project design. For Air Force MILCON

projects, the DA is either U.S. Army Corps of Engineers (USACE), Naval Facilities Engineering Command (NAVFAC),

or, for approved projects, AFCEC.

**Design Manager (DM):** The Air Force organization designated to manage the design, provide Air Force interface with

the Design Agent, and provide updates on design milestones to the Air Staff and MAJCOMs for specific projects.

**Deviation:** A deviation provides authority to deviate from a specific technical criteria requirement in a Unified Facility Criteria (UFC), model building code, or other facility engineering criteria document for an indefinite period of time. Deviations are valid for a specific project in a specific facility and are not generic approvals to deviate from criteria. Deviations are often described as long-term, or permanent criteria deviations. Refer to most recent version of MIL-STD-3007F,

Standard Practice for Unified Facilities Criteria and Unified Facilities Guide Specification.

**HAF(A4CF): AFCEC Program Management Plan for Air Force MILCON Execution (HAF-AFCEC PgMP)** The pur-

pose of this plan is to provide the contextual framework for the working relationship between Headquarters Air Force

(HAF) Civil Engineer, Facilities Management Division (A4CF) and the Air Force Civil Engineer Center (AFCEC) for Mili-

tary Construction (MILCON). This plan applies to all Air Force MILCON where AFCEC is designated as the Design

Manager/Construction Manager (DM/CM) or Design Agent/Construction Agent (DA/CA).

**Inspection:** The CA and contractors' inspection duties include, but are not limited to, such items as checking layout of the construction in the field and safety compliance; inspecting workmanship and materials to determine conformity with

contract documents. They also include reviewing laboratory tests and analyses of materials; completing and submitting

field and progress reports; and checking monthly and final estimates as a basis for payment.

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**Military Construction Program (MILCON):** The program approved annually by the Congress in the DoD Authoriza-

tion and Military Construction Acts, plus individual projects authorized pursuant to standing project authority provided

by Congress in Title 10 of the United States Code.

**Planning Charrette Reports Levels I and II (PCR-I and PCR-II):** These documents serve the same purpose as those

formerly designated as Requirements Documents Levels I and II (RD-I and RD-II). The final version of the HAF-AFCEC

PgMP eliminated the terms RD-I and RD-II. The purpose of the PCR-I is to document the methodology used by the ini-

tial planning charrette team to establish the cost and scope of the preliminary draft DD Form 1391. The PCR-II is the re-

sult of a follow-on planning charrette which uses the PCR-I and draft Form 1391 as a basis to produce a more comprehen-

sive document to validate the requirements in the PCR-I and to develop the intermediate draft Form 1391. The PCR-II

provides the follow-on designer a basis for understanding and further developing the project requirements through the

phases of design. Note: See HAF-AFCEC PgMP; Appendix B for design and construction codes, planning and design ac-

tivities.

**Project Delivery Team (PDT):** The project delivery team consists of all project stakeholders and contributing partici-

pants through each stage of the MILCON delivery process. The PDT produces optimum project results from an inte-

grated approach over the entire delivery process. All team members provide an essential perspective and role throughout

the process as their contributions are leveraged from conceptual requirement planning through construction completion.

A PDT should include the primary stakeholders (facility user/customer, installation engineers, and operators), project

architects/engineers, interior designers, planners, value engineers, environmental engineers, energy managers, contract-

ing officers, constructors, and DA/CA-agents. For NAF projects, the funding organization is also part of the team deter-

mining the execution strategy.

**Quality Assurance:** The Construction Agent's review of all phases of the construction work to ascertain quality or state of work and to determine compliance with plans and specifications and contract provisions.

**Red Zone Meeting:** A meeting held at the 80 percent construction completion date where participants discuss, define,

and achieve consensus on actions necessary to complete construction, support user occupancy, perform financial closeout

and document the fiscal closeout of the project in the Real Property Records.

**Ribbon Cutter:** Ribbon Cutter is an Air Force Military Construction (MILCON) Program project execution evaluation

tool. The AFCEC/CF Integration Cell developed this product to evaluate how well the Air Force and its partners are

achieving their goals to provide the Air Force with the best possible facilities on time and within budget. Ribbon Cutter

is not a comprehensive metric at this time nor does it collect details or reasons for missed goals to aid additional evalua-

tion. However, the AF expects our project execution teams to use results from Ribbon Cutter as a basis for further re-

view and process improvement.

**Value Engineering:** The systematic review by a multi-disciplined team to identify/analyze the most life-cycle cost-

effective options to reliably accomplish the programmed project intent at the lowest life-cycle cost without sacrificing

safety, quality, operations, maintenance, and the environment. The experienced, multi-disciplinary team improves value

and economy through the study of alternate design concepts, materials, and methods without compromising the pro-

ject's functional requirements.

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**Glossary of Procurement Terms**

**Updated by Colonel Mary A. Enges, January 2016**

**A &E Services: **Architecture-Engineering Services

**Acceptance:** Acknowledgment the supplies or services provided conform with the contract requirements. Acceptance is

typically evidenced by execution of a certification of acceptance.

**Acquisition:** The acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated. Acquisition begins at the point when agency needs

are established and includes the description of requirements to satisfy agency needs, solicitation and selection of

sources, award of contracts, contract financing, contract performance, contract administration, and those technical and

management functions directly related to the process of fulfilling agency needs by contract.

**Actual Cost:** A cost sustained on the basis of cost experience as opposed to forecasted, projected, or estimated costs.

**Administrative Contracting Officer (ACO):** The Government Contracting Officer responsible for administering a par-

ticular contract. Common tasks include monitoring contract performance, negotiations of rates, and contract close-out.

**Affirmative-Action Program:** A program to ensure equal opportunity for identified minority groups and women. Such

programs are typically administered through the Small Business Administration.

**Allocable Cost:** An expense that is chargeable to one or more specific cost objectives on the basis of relative benefits received or other equitable relationship.

**Allowable Cost:** Costs that are allocable to a contract, reasonable, and allowable under the applicable regulations and terms of the contract.

**Award:** Acceptance of a contractor's offer.

****

**BAFO "Best and Final Offer":** A contractor's final revised proposal. Usually submitted by all offerors still included in the competitive range at the end of discussions.

**Best Value:** The expected outcome of an acquisition that, in the Government's estimation, provides the greatest overall benefit in response to the requirement. The current trend in many contract awards is to achieve best value.

**Bill of Materials (BOM):** List of goods and services required to meet the technical requirements of specific solicitations.

**Billing Rate:** A rate used to bill the Government. These rates may be fixed by the contract, and the contractor assumes the risk of rising costs, or the rates may be subject to adjustments.

**Bundled contract:** A contract entered into to meet requirements consolidated by bundling, excluding contracts awarded

and performed entirely outside the United States.

**Bundling:** This means (1) Consolidating two or more requirements for supplies or services, previously provided or per-

formed under separate smaller contracts, into a solicitation for a single contract likely to be unsuitable for award to a

small business concern due to (i) The diversity, size, or specialized nature of the elements of the performance specified;

(ii) The aggregate dollar value of the anticipated award; (iii) The geographical dispersion of the contract performance

sites; or (iv) Any combination of the factors described in paragraphs (1)(i), (ii), and (iii) of this definition.

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(2) Separate smaller contract, as used in this definition, means a contract performed by one or more small business con-

cerns or was suitable for award to one or more small business concerns.

(3) This definition does not apply to contracts awarded and performed entirely outside of the United States.

**Cancellation:** When the Government determines that goods or services are no longer required, the procurement process

is terminated. Cancellations may only be made in good faith and in accordance with applicable regulations.

**Capital Asset:** Capital assets are generally equipment with a life cycle that spans more than one accounting period. The cost of acquiring capital assets must be spread out over the useful life of the asset. Examples include computers, office

equipment, and some equipment leases.

**CAS:** Cost Accounting Standards. Standards that establish basic rules regarding the manner in which contractors may

account for costs related to Government contracts.

**CFR:** Code of Federal Regulations.

**Change Order (CO):** An order by the contracting officer to change work. The changed work must be within the general

scope of the contract. Change Orders may be issued unilaterally by the Government or bilaterally and signed by both par-

ties. Changes are authorized under the Changes Clause in each contract.

**Claim:** A written demand or assertion by one of the contracting parties seeking a remedy under the contract. For exam-

ple, a remedy may be for payment for additional services, a credit for work not performed, an adjustment in schedule or

delivery, or other relief.

**Closeout:** For cost-type contracts -- the negotiation of final rates and an audit of final costs. For non-cost-type contracts

\-- the process of ensuring that all deliverables have been made and all payments due received.

**Competition:** The process of buying goods or services where two or more prospective contractors have the opportunity

to submit offers.

**Competitive Range:** A range of offerors who have submitted bids, quotes, or proposals that have a reasonable chance of being selected for award as determined on the basis of cost, price, and other factors stated in the solicitation.

**Commercial component:** Any component that is a commercial item.

**Commercial item:** This refers to --

(a) Any item, other than real property, of a type customarily used for nongovernmental purposes and (1) Has been sold,

leased, or licensed to the general public; or, (2) Has been offered for sale, lease, or license to the general public;

(b) Any item that evolved from an item described in paragraph (a) of this definition through advances in technology or

performance and is not yet available in the commercial marketplace, but will be available in the commercial marketplace

in time to satisfy the delivery requirements under a government solicitation;

(c) Any item that would satisfy a criterion expressed in paragraphs (a) or (b) of this definition, but for (1) Modifications of a type customarily available in the commercial marketplace; or (2) Minor modifications of a type not customarily available in the commercial marketplace made to meet federal government requirements.

Minor modifications means modifications that do not significantly alter the nongovernmental function or essential charac-

teristics of an item or component, or change the purpose of a process. Factors to be considered in determining whether a

modification is minor include the value and size of the modification and the comparative value and size of the final prod-

uct. Dollar values and percentages may be used as guideposts, but are not conclusive evidence that a modification is mi-

nor;

(d) Any combination of items meeting the requirements of paragraphs (a), (b), (c), or (e) of this definition that are of a

type customarily combined and sold in combination to the general public;

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(e) Installation services, maintenance services, repair services, training services, and other services if such services are procured for support of an item referred to in paragraphs (a), (b), (c), or (d) of this definition, and if the source of such services (1) Offers such services to the general public and the federal government contemporaneously and under similar

terms and conditions; and (2) Offers to use the same work force for providing the federal government with such services

as the source uses for providing such services to the general public;

(f) Services of a type offered and sold competitively in substantial quantities in the commercial marketplace based on es-

tablished catalog or market prices for specific tasks performed under standard commercial terms and conditions. This

does not include services sold based on hourly rates without an established catalog or market price for a specific service

performed;

(g) Any item, combination of items, or service referred to in paragraphs (a) through (f), notwithstanding the fact that

the item, combination of items, or service is transferred between or among separate divisions, subsidiaries, or affiliates

of a contractor; or

(h) A non-developmental item, if the procuring agency determines the item was developed exclusively at private expense

and sold in substantial quantities, on a competitive basis, to multiple state and local governments.

**Contract:** A mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the government to an expen-

diture of appropriated funds and, except as otherwise authorized, are in writing. In addition to bilateral instruments, con-

tracts include (but are not limited to) awards and notices of awards; job orders or task letters issued under basic order-

ing agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written

acceptance or performance; and bilateral contract modifications. Contracts do not include grants and cooperative agree-

ments covered by 31 U.S.C. 6301, et seq. For discussion of various types of contracts, see FAR Part 16.

**Contracting:** Purchasing, renting, leasing, or otherwise obtaining supplies or services from non-federal sources. Con-

tracting includes description (but not determination) of required supplies and services, selection and solicitation of

sources, preparation and award of contracts, and all phases of contract administration. It does not include making grants

or cooperative agreements.

**Contracting activity:** An element of an agency designated by the agency head and delegated broad authority regarding

acquisition functions.

**Contracting office:** An office that awards or executes a contract for supplies or services and performs post-award functions not assigned to a contract administration office.

**Contracting officer:** A person with the authority to enter into, administer, and/or terminate contracts and make related determinations and findings. The term includes certain authorized representatives of the contracting officer acting within

the limits of their authority as delegated by the contracting officer. "Administrative contracting officer (ACO)'' is a con-

tracting officer who administers contracts. "Termination contracting officer (TCO)" is a contracting officer who settles

terminated contracts. A single contracting officer may be responsible for duties in any or all of these areas. Reference in

this regulation to administrative contracting officer or termination contracting officer does not:

(a) Require a duty be performed at a particular office or activity, or

(b) Restrict in any way a contracting officer in the performance of any duty properly assigned.

**Cost:** The estimated expense anticipated in the performance of a project or the actual expenditures experienced during performance. Cost includes direct labor, fringe, overhead, general and administrative (G&A), and other direct costs (including subcontracts), but not fees.

**Cost Sharing:** An arrangement where the contractor shares some of the reasonable and allowable costs of performing

the work. Contractors usually receive some valuable consideration such as ownership in data rights or patent rights in

exchange for sharing the cost of developing a product for use by the government.

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**DCAA:** Defense Contract Audit Agency is a federal agency responsible for auditing contractors' cost proposals and man-

agement systems. It also provides guidance to government contracting officers to assist them in negotiating fair and rea-

sonable prices.

**Default:** The unexcused failure to perform a task or fulfill an obligation under a contract. A default exposes the default-ing party to potential liability for damages, including re-procurement costs. In government contracting, the contractor

generally receives no reimbursement for the costs incurred in trying to perform if it is determined the contractor is in

default. This is contrasted to a Termination for Convenience ("T4C") initiated by the Government where the contractor

is reimbursed for costs incurred as well as a reasonable fee or profit.

**DFARS:** Defense Federal Acquisition Regulation Supplement.

**Direct Cost:** Any cost specific to a particular final cost objective. Costs identified specifically with a contract are direct costs of that contract. All costs identified specifically with other final cost objectives are direct costs of those cost objectives. This is in contrast to "indirect costs" which benefit more than one cost objective and do not benefit only one pro-

ject, contract, or cost objective.

**Direct Labor:** Any labor identified specifically with a project, typically including all technical and support effort associated with the project. An example of direct labor is a technician working on a project collecting technical data in support

of a contract deliverable. This is contrasted to "indirect labor" where the effort of an individual benefits many projects

and it is not possible to identify specific projects which benefit from the individual's work. An example is an office man-

ager's time spent administering the business operations of an office.

**EEO:** Equal Employment Opportunity.

**Electronic Commerce:** Electronic techniques for accomplishing business transactions including electronic mail or mes-

saging, World Wide Web technology, electronic bulletin boards, purchase cards, electronic funds transfer, and electronic

data interchange.

**Evaluation Criteria:** A set of standards or criteria set forth in a solicitation that establish the factors the Government will use to evaluate offers and make an award decision.

**Excusable Delays:** Events that excuse contractor delays in the performance of the work. Examples of excusable delays

include acts of God, fires, flood, unusually severe weather, and strikes.

**Execution Authority:** A dollar threshold and a time limit that establishes the limits to which a contracting officer can obligate the government.

**FAR:** Federal Acquisition Regulation. The regulatory foundation used for buying goods and services to support the operations of the government. These regulations apply to all government agencies and are often supplemented by each agency.

These regulations change often and must be monitored.

**G &A Expense:** General and Administrative Expense.

**GFE:** Government-Furnished Equipment.

**GFP:** Government-Furnished Property.

**Government Property:** Property owned or leased by the government.

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**Indirect Costs:** Indirect costs are costs not directly identified with a single, final, cost objective, but identified with two or more final cost objectives. Indirect costs are those remaining after all direct costs have been identified and

charged to the contract. Examples include general and administrative costs, labor overhead, and material overhead

charges.

**Invitation for Bids (IFB):** A solicitation document used in sealed bidding procurements conducted under FAR Part 14.

Under such procurements, the government makes an award without discussions or negotiations. The award must be

based solely on price and price-related factors.

**IR &D: I**ndependent Research and Development.

**Level-of-Effort (LOE):** A contractual arrangement whereby the contractor agrees to expend a certain number of labor

hours in furtherance of a task. Under an LOE-type arrangement, the contractor is generally only responsible for provid-

ing the number of labor hours specified as opposed to producing an end product.

**Micro-purchase:** An acquisition of supplies or services (except construction), the aggregate amount of which does not

exceed $3,000, as of this writing, except that in the case of construction, the limit is $2,500.

**Micro-purchase threshold:** $3,000, as of this writing. The aggregate amount of $3,000 for an acquisition of supplies or services.

**Milestone Payments:** Fixed or predetermined payments based on the completion of specific, measured events regardless

of the actual cost of performance.

**MILSPEC:** Military Specification.

**MOA:** Memorandum of Agreement.

**Modification:** Generally, any change to the terms of a contract. Any modification to the statement of work or the technical standards governing performance should be documented to avoid disputes after the work has been done.

Multi-year Acquisition: Contracting for more than the current year's requirements.

**NASA FAR Supplement:** National Aeronautics and Space Administration (NASA) Federal Acquisition Regulation

Supplement.

**NASA:** National Aeronautics and Space Administration.

**Need Date:** The date when a contract requirement must be completed. Generally refers to the delivery of a product to

the Government or a predetermined end user.

**Negotiated Acquisition:** Procurements that provide for the potential to open discussions and negotiate terms and conditions prior to award of a contract.

**Negotiation:** In general, negotiation is a bargaining process between two or more parties seeking to reach a mutually

satisfactory agreement or settlement of a common concern. _See, also_ , "Negotiated Acquisition," above.

**Non-competitive Acquisition:** Sole or single-source acquisition. An acquisition process where only one offeror is con-

tacted to provide the goods or services required by the government. Noncompetitive procurements must be conducted in

accordance with the limitations specified by the Federal Acquisition Regulations and supplements. Competition should

be the standard to the maximum extent practicable.

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**Nonconformance:** A departure from the requirements specified in the contract. Generally used to refer to products that do not conform to the contract's specifications, drawings, or product descriptions.

**Non-personal Services Contract:** A contract under which the personnel rendering the services are not subject to nor

perform under the direct supervision and control of the government.

**Non-recurring Costs:** Production costs generally incurred only once, including costs for plant or equipment relocation, plant rearrangement, special tooling and test equipment, pre-production engineering, initial spoilage and rework, and

specialized work-force training. The costs must be carefully evaluated because the contractor may attempt or may be

forced to charge these costs directly to a contract rather than to overhead. How these costs are charged can greatly im-

pact the cost of performing a project under a contract.

**Non-responsive Offer:** An offer that does not comply with material aspects of the solicitation. The definition of what is

"material" varies depending on the type of acquisition process used. What may be considered a minor variance for a nego-

tiated procurement may be a "material" variance for a competitive procurement using sealed bidding procedures.

**Non Responsible:** An offeror who does not meet one or more of the following standards: 1. Adequate financial re-

sources to perform the contract. 2. The ability to comply with the required delivery or performance schedule. 3. A satis-

factory performance record. 4. Satisfactory integrity and ethics. 5. The necessary equipment and facilities to perform. 6.

Qualification under applicable laws.

**Occupational Safety and Health Administration (OSHA):** An agency of the federal government responsible for issu-

ing and administrating regulations that require employers to apprise their employees of all hazards to which they may be

exposed, relative symptoms and appropriate emergency treatment, and proper conditions and precautions for safe use

and exposure.

**Offer:** A response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract. Responses to invitations for bids (sealed bidding) are offers called "bids" or "sealed bids;'' responses to requests for proposals (negotiation) are offers called "proposals;" responses to requests for quotations (negotiation) are not offers and are called

"quotes."

**Offeror:** Generally used to refer to any individual or legal entity which submits an offer in response to a request for quotations or request for proposals. Technically, an offeror is any person or legal entity which makes an offer that, if ac-

cepted, creates a legal obligation.

**Offerors' Conference:** A meeting conducted for offerors and their prospective lower-tier subcontractors after a solicitation has been issued but before offers have been submitted. Buyers conduct offerors' conferences to explain or clarify

complicated specifications and requirements prior to the submission of a proposal. These conferences are carefully con-

trolled to ensure the information provided is distributed to all persons who are interested in submitting a bid or proposal

to the Government. May include a site visit of the area at which work will be performed.

**Option:** A unilateral right in a contract allowing the government to extend the term of a contract, perform work, or provide goods and services without negotiations with the contractor. Advance notification to the contractor is usually re-

quired.

**Oral Offer:** A verbal offer versus a signed, written document.

**Other Direct Costs (ODCs):** Costs, other than Direct Labor, which directly benefit a specific contract. Examples of

potential ODCs include: copy charges, long distance phone calls, computer usage changes, and travel charges.

**Partial Termination:** Termination of part, but not all, of the work not yet completed and accepted under a contract. In

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government contracting, a partial termination is categorized as a Termination for Convenience allowing the contractor to

recover costs incurred and a reasonable fee or profit on those costs.

**Payment Bond:** A written instrument that ensures payment will be made to all persons who supply labor or material in

the prosecution of the work required by a contract.

**Performance Bond:** A written instrument that secures performance and fulfillment of the contractor's obligations under the contract. It provides funds to the government to complete performance of a project in the event a contractor defaults.

**Plans and Specifications:** Drawings, specifications, and other data used to document the manufacture of a product or

the construction of facilities.

**PO:** Purchase Order.

**Post-award Conference:** A meeting conducted after award. In government contracting, the losing offerors are entitled

to know why they lost the procurement. This conference is used for that purpose. It is also used to establish a forum for

the government and the contractor to establish the ground rules for beginning work. The contractor and the government

generally want the work to begin quickly and properly under the terms of the contract. This conference is a good opportu-

nity to start this process.

**Pre-award Survey:** An evaluation of a prospective contractor's resources and capabilities to determine whether the prospective contractor is responsible. This evaluation is important because a prospective offeror must be "responsible" in

order to be eligible for award of a contract.

**Pre-negotiation Conference:** A meeting conducted separately by the parties to establish negotiation objectives. These

strategy sessions are important so there is no confusion during negotiations.

**Price** : Cost plus fee or profit.

**Price Analysis:** The process of examining and evaluating a proposed price without evaluating its separate cost

elements and proposed profit. The purpose of the evaluation is to determine if the "total price" is reasonable.

**Price Competition:** Competition among offerors based only on price.

**Price Reasonableness Determination:** A determination by the government that the proposed charges to perform work

under the contract are reasonable.

**Prime Contract:** Generally used to refer to the contract between the government and the contractor. In contrast, a subcontract is a contract between the contractor and a supplier in support of the Prime Contract.

**Prior Consent:** A regulatory requirement to obtain written approval from the government prior to placing a subcontract in support of the prime contract for certain prime contractors. Generally required for prime contractors who do not have

an approved procurement system. An approval package is prepared and submitted to the ACO for review and approval.

The purpose of this process is to ensure the subcontracting process is consistent with regulations.

**Proposal Amendment:** Any alteration to a proposal. Amendments to proposals must be timely and consistent with the

requirements of the solicitation or the offeror runs the risk of being excluded from consideration for award of contract.

**Proposals:** Official offers from responsible offerors to the government responsive to the solicitation requirements.

R&D: Research and Development.

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**Ratification:** A process for approving an unauthorized commitment by a person who exceeded authority. Ratifications

are rare and place the contractor at great risk because the contractor has performed work or incurred obligations without

approval from a person who has authority to commit the government under the federal procurement system. If the con-

tractor has performed work without proper authority, the contractor may not be paid unless a ratification action is ap-

proved through appropriate legal channels.

**Representations and Certifications (Reps & Certs):** A part of the solicitation which requires the offeror to certify to a number of regulatory requirements when submitting a proposal to the government. Refusal to complete these certifica-tions is a bar to contract award.

**Request for Proposals (RFP):** A solicitation document used to obtain offers for negotiated requirements.

**Request for Quotation (RFQ):** A solicitation document used for low-dollar value procurements where price is the

determinative factor in making an award.

**Requirement:** An item requested by a solicitation; or, a condition or essential element of a solicitation an offeror must fulfill to be considered for award.

**Responsible:** An offeror or potential contractor who has the financial resources, personnel, facilities, and overall capability to satisfactorily fulfill a specific contractual requirement.

**Responsive:** An offeror is "responsive' when it meets the stated requirements of a solicitation regarding the Statement of Work, Period of Performance, and various contract provisions, including those focused on delivery and risk. An offeror's proposal is responsive if it responds to all the significant requirements of the solicitation.

**Responsive Offer:** An offer that complies with the material aspects and expressed requirements of the solicitation.

**S/SDB:** Small/Small Disadvantaged Business.

**SBA:** Small Business Administration.

**SDB:** Small Disadvantaged Business.

**Service Contract:** A contract in which the contractor's primary responsibility is to perform an identifiable task rather than to furnish an end item or supply.

**Set-Aside:** A term used to indicate an acquisition has been identified for exclusive participation among small and small disadvantaged business, women, veterans and disabled and socio-economic disadvantaged persons.

**Settlement Agreement:** A written agreement in the form of a modification to a contract that resolves all disputes be-

tween the parties. These agreements can cover an entire contract or a severable portion of the work under a contract.

**Settlement Claim:** A written demand or assertion by a contractor seeking payment or relief following the partial or complete termination of a contract, or as a result of dispute regarding the delivery of goods or services under the contract.

**Simplified Acquisition Procedures:** Methods prescribed in FAR Part 13 for making purchases of supplies or services.

**Simplified Acquisition Threshold:** As of this writing, 150,000, except in the case of any contract to be awarded and performed, or purchase to be made, outside the United States in support of a contingency operation (as defined in 10 U.S.C.

101(a)(13)) or a humanitarian or peacekeeping operation (as defined in 10 U.S.C. 2302(8) and 41 U.S.C. 259(d)), the

term means $200,000.

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**Small Business:** Any business, including affiliates, independently owned and operated, not dominant in the field of operation in which it is competing for contracts, and qualifies as a small business under the criteria established for the in-

dustry. These definitions are established by the Small Business Administration.

**Small Disadvantaged Business (SDB):** A small business at least 51 percent unconditionally owned by one or more indi-

viduals who are both socially and economically disadvantaged. Or, a publicly owned business with at least 51 percent of

its stock owned by one or more socially and economically disadvantaged individuals and its management and daily busi-

ness controlled by one or more of these individuals.

**Socially or Economically Disadvantaged Individuals:** Individuals subjected to racial or ethnic prejudice and cultural

bias because of their identity as a member of a group without regard to their individual qualities: Black Americans, His-

panic Americans, Native Americans, Subcontinent Asian Americans, and Asian Pacific Americans.

**Sole-Source Procurement:** Negotiation and award of a contract to one party without competition. These awards are dis-

couraged, as competition should be pursued to the maximum extent practicable. This procurement requires special docu-

mentation and approvals to justify award of a contract.

**Solicitation:** A request for proposals, a request for quotation, or an invitation for bid.

**Source Development:** The process by which small or small disadvantaged businesses are assisted to overcome their

weaknesses so they can qualify for contracting or subcontracting opportunities.

**Source Selection:** Refers to the process of determining which offeror will be awarded a contract.

**SOW** : Statement of Work.

**Specification:** A description of the technical requirements for a material, product, or service, including the criteria to determine whether these requirements are met. Specifications state only the minimum needs required to satisfy the govern-

ment's requirements.

**Standard:** A document that establishes engineering and technical limitations and the application of items, materials,

processes, methods, designs, and engineering practices. A standard includes any criteria essential for achieving the high-

est degree of uniformity in materials or products or the ability to interchange parts used in those products.

**State and Local Taxes:** Taxes levied by the States, the District of Columbia, Puerto Rico, possessions of the U.S., or other political subdivisions.

**Statement of Work (SOW):** A document that fully defines a task to be accomplished or a service to be provided.

**STE:** Special Test Equipment.

**Stop - Work Order:** A written document directing a contractor to stop work.

**Subcontracting Plan:** A plan prepared by a prime contractor to establish separate goals on a government contract by dollar amount and percentage for small and small disadvantaged businesses. When approved by the government, the plan

becomes a material part of the contract. For a commercial product, a subcontracting plan pertains to a company's entire

production rather than to an individual contract. For significant subcontracts, a prime contractor may require the same

plan from a lower tier subcontractor.

**Surety:** An individual/corporation legally liable for debt, default or failure of principal to satisfy a contractual obligation.

_**Air National Guard Commander's Legal Deskbook**_

938

_**Chapter 25, Resources**_

_**Section 25-G2 Glossary of Procurement Terms**_

_**Page 10**_

**TCO:** Termination Contracting Officer.

**Teaming Agreement:** A legal arrangement used to pool the talents of companies who must work together to prepare a

competitive proposal for the ultimate customer. Teaming Agreements generally restrict the members of the team from

working with other competitors for the procurement in exchange for business upon award. Team members frequently

share proprietary data and agree to restrict the use of that information.

**Technical Data:** Generally, information directly related to the design, engineering, development, production, process, manufacture, use, operation, overhaul, repair, maintenance, modification, or reconstruction of products. Some contracts

require the delivery of Technical Data while others may only require access to the data. Ownership of Technical Data is

carefully controlled because of its value to the contractor as well as the government, especially regarding the use of this

information by competitors.

**Technical Leveling:** An improper procurement process whereby contracting officers continue to point out weakness in

proposals until all proposals are fundamentally equal. This is generally done through successive rounds of discussions

and Best & Final Offers.

**Technical Transfusion:** The improper disclosure by the government of one offeror's technical data to another offeror allowing the competing offeror to improve their evaluation score by incorporating this information into the proposal.

**TEP:** Total Estimated Price.

**Termination:** The right of the government to close down a contract at its convenience in exchange for paying the fair and reasonable costs of terminating the contract. If the contractor is in default of the contract, the government may terminate

the contract for default with no obligation to pay the impact costs of the termination.

**Termination for Convenience ("T4C"):** The right of the government to direct a contractor to stop work and submit a

claim for the impact of closing down a contract or task under a contract. A Termination for Convenience may eliminate

all or part of the remaining performance of the work under the contract. Because the government has this right, prime

contractors generally flow similar provisions down to their subcontractors to avoid breach of contract claims by subcon-

tractors.

**Termination for Default ("T4D"):** A decision by the contracting officer that the contractor is in breach of contract for failing to deliver supplies or perform services within the time specified by the contract, to perform to any other provisions of the contract, or to show progress, which in turn endangers the performance of the contract.

**Terms and Conditions (T &Cs): **The rights and obligations of the parties to a contract spelled out in the contract or incorporated into the contract by operation of law.

**Time-Phased Delivery:** Staggering delivery dates consistent with scheduled production-need dates.

**UCC:** Uniform Commercial Code.

**Unauthorized Commitment:** When a representative of a party to a contract exceeds its authority. This is particularly

important in government contracting because there is no implied authority of contracting officers to bind the govern-

ment. Contracting Officers either have delegated authority to bind the government or they do not. If they do not, the gov-

ernment is not bound and the contractor must try to get a ratification of this unauthorized commitment or not get paid

for the work done.

**Unilateral Contract:** A contract where acceptance by one party binds the other.

_**Air National Guard Commander's Legal Deskbook**_

939

_**Chapter 25, Resources**_

_**Section 25-G2 Glossary of Procurement Terms**_

_**Page 11**_

**Unilateral Modification:** A change to a contract effective upon signature by one party, obligating the other party to perform.

**Unsolicited Proposal:** A proposal, generally written, submitted to an agency to obtain a government contract which

does not respond to an existing Request for Proposal or Request for Quotation.

**USAF:** United States Air Force.

**U.S.C.:** United States Code.

**Veteran-Owned Business:** A small business at least 51 percent owned by one or more military veterans who are U.S.

citizens and who also control and operate the business.

**Warranty:** A promise or affirmation given by a contractor to the Government regarding the nature, usefulness, or condition of the supplies or performance of services furnished under the contract.

**WBS:** Work Breakdown Structure.

**Weighing:** The assignment of a numerical value during the evaluation of an offer to establish the relative value of appropriate factors.

**Woman-Owned Business:** A small business at least 51 percent owned by one or more women who are U.S. citizens and

who also control and operate the business.

**8(a):** A program managed by the Small Business Administration for small businesses owned and controlled by socially

and economically disadvantaged individuals as defined by the Code of Federal Regulations.

_**Air National Guard Commander's Legal Deskbook**_

940

_**Chapter 25, Resources**_

_**Section 25-G3 Glossary of Report of Survey Terms**_

_**Page 1**_

**Glossary of Report of Survey Terms**

**Updated by Colonel Mary A. Enges, January 2016**

**AUTHORITY:** AFMAN 23-220, _Reports of Survey for Air Force Property_ (1 Jul 96).

_**Terms**_

**Abuse:** Deliberate unauthorized use of government property or willful misconduct.

**Accountability:** The obligation imposed by law or lawful order or regulation, or an officer or person for the keeping accurate record of property, documents, or funds. The person having this obligation may or may not have actual possession of

the property, documents, or funds. Accountability is concerned primarily with records, while responsibility is concerned

primarily with custody care, and safekeeping. ****

**Accountable Officer:** An individual appointed by proper authority who maintains item and, or financial records in con-

nection with government property, irrespective of whether the property is in his or her possession for use or storage, or

is in the possession of others to whom it has been officially entrusted for use or care and safekeeping. In all cases, the

accountable officer is responsible for establishing and maintaining financial property control records, controlling the processing of supporting documentation, and maintaining supporting document files. The primary accountable officers under

the Air Force ROS System include the following: chief of supply, medical supply officer, munitions officer, fuels officer,

chief of information processing center, civil engineer, etc.

**Air Force Members and Employees:** Active-duty members, Air Force Reserve members, ANG/AGR members, Air

Force civilian employees, and ANG Title 32 civilian technicians.

**Appointing Authority:** An individual designated in writing by the approving authority. The approving authority may act as the appointing authority. The appointing authority appoints financial liability officers, if required; approves or disapproves the recommendations of the responsible officer or financial liability officer; and recommends actions to the approv-

ing authority. The appointing authority is normally senior to the responsible officer, accountable officer, and financial liability officer.

**Approving Authority:** The approving authority makes determinations to either relieve involved individuals from respon-

sibility and, or accountability or approve assessment of financial liability. The approving authority may act as the appointing authority or designate an appointing authority in writing. The approving authority is normally senior to the appoint-

ing authority.

**Collective Liability:** When more than one individual may be liable for a debt, collectively or individually.

**Commander:** An individual vested with command authority in the Air Force. Command includes the authority and re-

sponsibility for effectively using available resources and for planning the employment of, organizing, directing, coordinat-

ing, and controlling Air Force personnel for the accomplishment of assigned missions. It also includes responsibility for

health, welfare, morale, and discipline of assigned personnel.

**Controlled Inventory Items:** Those items designated as having characteristics which require that they be identified, accounted for, secured, segregated, or handled in a special manner to ensure safekeeping and integrity. Controlled inven-

tory items in descending order of the degree of control normally exercised are:

a. Classified Items. Material that requires protection in the interest of national security.

b. Sensitive Items. Material which requires a high degree of protection and control due to statutory requirements or regu-

lations, such as narcotics and drug abuse items, precious metals, items which are of a high value, highly technical, or a

hazardous nature; and small arms, ammunition, explosives, and demolition material.

_**Air National Guard Commander's Legal Deskbook**_

941

_**Chapter 25, Resources**_

_**Section 25-G3 Glossary of Report of Survey Terms**_

_**Page 2**_

c. Pilferable Items. Materials having a ready resale value or application to personal possession and which are, therefore,

especially subject to theft.

**Creditor Organization:** The Air Force organization, DoD component, or other federal agency, owed money, or property.

For reports of survey, the creditor or organization is the organization to which the approving authority is assigned.

**Culpability:** Blameworthy, usually associated with error or negligence.

**Deliberate Unauthorized Use:** Willful or intentional use without right, permit, or authority.

**Discrepancies:** For purposes of this manual, discrepancies are defined as any government property lost, damaged, or destroyed.

**Financial Liability:** The statutory obligation of an individual to reimburse the government for loss, damage, or destruction of government property arising from his or her negligence.

**Financial Liability Board:** A team of investigators consisting of officers, enlisted members, or civilian employees who are qualified to investigate an accident, incident, or occurrence within their area of expertise.

**Financial Liability Officer:** An individual who is appointed in writing by the appointing authority to conduct an investigation to determine responsibility for loss, damage, or destruction of government property. Individuals so appointed

shall not be the accountable or responsible officer or have any direct interest in the property being investigated. The fi-

nancial liability officer is normally senior to the persons directly involved with the discrepancy. The appointing authority may act as the financial liability officer.

**Gross Negligence:** An extreme departure from the course of action to be expected of a reasonably prudent person, all

circumstances being considered, and is accompanied by a reckless, deliberate, or wanton disregard for the foreseeable

consequence of that act.

**Intermediate Commander:** Commander of a subdivision of a major command having administrative jurisdiction over

two or more installations within that command.

**Investigation:** A duly authorized, systematized, detailed examination or inquiry to uncover facts and determine the

truth of a matter. This may include collecting, processing, reporting, storing, recording, analyzing, evaluating, producing

and dissemination of the authorized information.

**Liability:** The state of being responsible or answerable for the loss, damage, or destruction of government property.

**Negligence:** The failure to act as a reasonably prudent person would have acted under similar circumstances. Failure

to comply with existing laws or regulations may be considered as evidence of negligence.

**Personal Arms and Equipment:** Individual equipment and clothing issued to individuals for their sole use and care,

such as weapons, personal retention items, mobility kit bags, flight jackets, parkas, and similar items. In defining per-

sonal arms and equipment determine how the property is used by the member, and whether it is turned in at the end of

a work shift. This is especially true when dealing with portable radios and hand tools. A portable radio is personal equip-

ment when the individual uses it consistently, carries it wherever he or she goes, and has it for an indefinite period of

time; however, it is not personal equipment when the individual has it for a specified period of time while on duty, and

then turns it in to be used by others at the end of his or her shift.

**Property:** 1. Anything that may be owned. 2. As used in the military establishment, usually confined to tangible prop-

erty, including real estate and materiel.

_**Air National Guard Commander's Legal Deskbook**_

942

_**Chapter 25, Resources**_

_**Section 25-G3 Glossary of Report of Survey Terms**_

_**Page 3**_

3. For special purposes and as used in certain statutes, this term may include such items as the public domain, certain

lands, certain categories of naval vessels and records of the federal government.

**Property Record Items:** All accountable government property other than supply system stocks.

**Property Custodian:** An individual appointed by proper authority who is responsible for the custody, care, and safekeeping of Air Force property. Failure to exercise this obligation may result in the assessment of financial liability. The custodian normally issues this equipment to authorized users.

**Proximate Cause:** The cause which, in a natural and continuous sequence, unbroken by a new cause, produces the loss

or damage, and without which the loss or damage would not have occurred. It is further defined as the primary moving

cause, or the predominant cause, from which the injury follows as a natural, direct, and immediate consequence, and

without which it would not have occurred.

**Report of Survey:** An official report of the facts and circumstances supporting the assessment of financial liability for the loss, damage, or destruction of Air Force controlled property. It serves as the basis for the government's claim for restitution for the loss or damage against a person, state, territory, or activity.

**Responsibility:** 1. The obligation to carry forward an assigned task to a successful conclusion. With responsibility goes authority to direct and take the necessary action to ensure success. 2. The obligation for the proper custody, care, and

safekeeping of property or funds entrusted to the possession or supervision of an individual.

**Responsible Officer:** An individual appointed by proper authority to exercise custody, care, and safekeeping over property entrusted to his or her possession or under his or her supervision. The loss or damage to Air Force property because

of failure to exercise this obligation may result in the assessment of financial liability. Depending on the type of organizational structure, the responsible officer may be one of the following: Wing/installation commander, a group or squadron

commander, or other officers in command positions.

**Reviewing Authority:** An individual designated in writing by the approving authority to review and analyze the results of supply system stock research.

**Supply System Stocks:** Wholesale and retail stocks in the distribution system under control of DoD components for

ultimate sale or issue to user.

**Willful Misconduct:** Intentional damage, destruction, or loss of government property.

**Wrongful Disposition:** A sale or disposition without proper authority of government property and, or unwarranted use

of that property

_**Air National Guard Commander's Legal Deskbook**_

943

**Chapter 26, Training**

**Table of Contents**

**Section**

26 - 1 Table of Contents

26 - 2 Official Training

26 - 3 Training Outside the United States

26 - 4 Telecommuting

_**Air National Guard Commander's Legal Deskbook**_

944

_**Chapter 26, Training**_

_**Section 26-2 Official Training**_

_**Page 1**_

**Official Training: Annual Training (AT), Special Training (ST),**

**Formal School Training (FT) and Inactive Duty Training (IDT)**

**Updated by Lieutenant Colonel Gina Simonson, April 2015**

**AUTHORITY** : ANGI 36-2001, _Management of Training and Operational Support Within The Air National Guard_ (19 Oct 09, certified as current 28 Apr 14); DoDI 1215.06. 

## INTRODUCTION

Air National Guard members are required to perform training to meet their dual mission of providing the Air Force with

operationally ready units to be called upon as needed, or responding to state emergencies. Training of Guard members

generally falls into three categories: annual training (AT), special training (ST), or inactive duty for training (IDT).

**TYPES OF TRAINING**

**Annual Training**

Annual Training (AT) is required to be performed by ANG members at least 15 days each fiscal year but no more than

30. The primary purpose of AT is to provide individual and/or unit readiness training. Performance of an AT workday

must be a minimum of 8 hours. AT can be accomplished either under Title 10 of the United States Code, in which case

the member has a federal status, or under Title 32, which is performed in state status. This distinction is important to

military discipline, as a Guard member performing AT under Title 10 is subject to the UCMJ, and depending on state

law, the Guard member in Title 10 status may also be subject to state law for military discipline purposes. Commanders

may excuse a member from this training requirement for any of the reasons set out in para. 3.3 of ANGI 36-2001.

**Special Training**

Special Training (ST) authorizes workdays for training and operational support requirements that cannot be accom-

plished in UTA or in AT; _i.e._ , airlift support, deployments, exercises, etc. ST days are primarily performed in Title 32 but may be performed under Title 10. ST days can count toward the 15 days of AT required of each Guard member each fiscal

year and may also be used for extra training days. An explanation of when ST is authorized, the types, restrictions, and

limited uses, is set forth in Chapter 4 of ANGI 36-2001.

**Formal School Training**

Formal School Training (FST) is a category of active service in a pay status to accomplish required formal school AFSC

upgrade training, refresher/proficiency training, or professional military education. These training periods may also sat-

isfy the requirement for ANG members to perform the fiscal year requirement of 15 days of active service for training.

Technicians are prohibited from attending FST in a technician status. Such training includes initial skill, skill-level awarding training, in-residence professional military education (PME), wartime required training, and mandatory recurrent

training. Optional training or events such as conferences, workshops, seminars, or symposia are not supported with

school workdays or travel funds.

**Inactive Duty Training**

Inactive Duty for Training (IDT) is training other than annual training or special training and includes Unit Training As-

semblies (UTA), Split Unit Training Assemblies (SUTA), Rescheduled Unit Training Assemblies (RUTA), Equivalent

Training (EQT), Additional Flying Training Period (AFTP), Proficiency Training (PT), and Training Period Preparation As-

sembly (TPPA). IDT is performed under Title 32 and may only be performed in the United States and U.S. territories.

_**Air National Guard Commander's Legal Deskbook**_

945

_**Chapter 26, Training**_

_**Section 26-2 Official Training**_

_**Page 2**_

_Unit Training Assemblies (UTA)_

All federally recognized units are required to conduct 48 UTAs each fiscal year. Accordingly, all Air National Guard mem-

bers must attend 48 UTAs, or authorized substitutes each fiscal year. A UTA must be at least four hours in duration.

However, under "exceptional circumstances," commanders may credit a member with attendance at a UTA for pay pur-

poses as long as that member has been present for a minimum of two hours. In such instances, it is important for the

commander to document this and attach it to the file copy of the retained unit attendance records. Commanders cannot

exercise this discretion for the "personal convenience" of the member concerned.

_Rescheduled Unit Training Assembly (RUTA)_

A RUTA must be requested and approved in advance of the missed period. If the RUTA is at the request of the member,

the unit commander may deny or approve based upon valid circumstances as determined by the commander. If the re-

quest and/or the approval were initially made verbally, approval must be documented prior to the RUTA being per-

formed. Training received during a RUTA must be of equal to or better quality than the training that would have been

received during the missed training assembly. RUTA will not be performed outside of the fiscal year of a missed UTA.

_Equivalent Training (EQT)_

A member may be allowed to make up a missed UTA even if the UTA was missed without prior approval. EQTs can be

performed in a pay status for excused absences and in a non-pay status (retirement points only) for unexcused absences,

as approved by the commander. Commanders may allow individuals to make up a maximum of four missed UTA periods

in a paid EQT status per fiscal year. An EQT in pay status must be performed within the same fiscal year. An EQT period

without pay (for retirement points only) may be performed outside of 90 calendar days of the missed scheduled UTA pe-

riod but within the member's anniversary year. At the unit commander's discretion, unexcused absences occur when a

member fails to report to the UTA without prior approval, the member is either late for the UTA or leaves early without

approval, or the member timely attends but fails to comply with all provisions of AFI 36-2903, _Dress and Personal Appearance of Air Force Personnel._

**Acronyms and Definitions**

WORKDAY

TYPE MEMBER

CONDITIONS

AUTHORITY

Within the fiscal year of the

RUTA

All members

Unit Commander

missed UTA

Outside of the fiscal year of

RUTA

All members

NOT ALLOWED

the missed UTA

Within the fiscal year of the

EQT (With Pay)

All members

Unit Commander

missed UTA

Both EQT and missed

EQT (Without Pay)

All members

period must be within the

Unit Commander

member's anniversary year

_**Air National Guard Commander's Legal Deskbook**_

946

_**Chapter 26, Training**_

_**Section 26-2 Official Training**_

_**Page 3**_

**WITHHOLDING CREDIT FOR ATTENDANCE AT TRAINING**

Guard members must meet dress and appearance standards, physical fitness requirements and medical standards and

qualifications when performing active service and inactive duty. If they do not, their commander can withhold credit (i.e.,

pay and points) for attendance. _See_ ANGI 36-2001, para. 1.14.

**TRAINING OVERSIGHT RESPONSIBILITIES**

Training of the ANG is conducted under command of State authorities pursuant to ANG directives, applicable Air Force

training policies, standards and programs, and State directives. The highest command level on base is responsible for

managing a master unit training plan which contains a specific training plan for all subordinate units. While unit training

administrators have the function of ensuring compliance with the training plan, commanders are ultimately responsible

for ensuring their members are trained to accomplish their assigned mission.

At the Air Force level, each gaining MAJCOM is charged with inspecting and evaluating the training of the ANG units it

will gain upon mobilization. Gaining MAJCOMs and numbered Air Forces conduct inspections to determine the effective-

ness of each ANG unit's training program. _See_ ANGI 36-2001, paragraphs 1.7 - 1.9.

**WORKDAY PROGRAM**

The ANG workday program is designed to forecast training requirements, allocate resources, and maintain an audit trail

of resources expended. It provides the mechanism by which units can forecast and monitor the use of training days to

ensure they are being used to meet bona fide training requirements and needs. The mechanics of this program are set

out in Chapter 2 of ANGI 36-2001.

**AIR NATIONAL GUARD - DUTY AND STATUS FOR TRAINING**

The following summary sets out the various duty status possibilities of members of the National Guard (it does not ap-

ply to Air Force Reserve members).

TITLE 32 STATUS

Active Duty

Inactive Duty

YES

NO

Active Duty for Special Work (ADSW)

YES

NO

Active Guard/Reserve (AGR)

YES

NO

Annual Training (AT)

YES

NO

Formal School Training (FST)

YES

NO

Full-Time National Guard Duty for Training (FTNGD for T)

YES

NO

Full-Time National Guard Duty for Special Work (FTNGD for SW)

NO

YES

Inactive Duty Training (IDT/UTA)

YES

NO

Special Training (ST)

_**Air National Guard Commander's Legal Deskbook**_

947

_**Chapter 26, Training**_

_**Section 26-2 Official Training**_

_**Page 4**_

TITLE 10

STATUS

Active Duty

Inactive Duty

YES

NO

Active Duty (AD)

YES

NO

Active Duty for Special Work (ADSW)

YES

NO

Active Duty Training (ADT)

YES

NO

Active Guard/Reserve (AGR)

YES

NO

Annual Training (AT)

YES

NO

Extended Active Duty (EAD)

YES

NO

Formal School Training (FST)

YES

NO

Initial Active Duty Training (IADT)

YES

NO

Special Training (ST)

**CONCLUSION**

Commanders possess a variety of training options and duty status categories to train their members.

_**KWIK-NOTE: Commanders must know their authority and responsibilities under the governing training regulations.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

**SECTION**

Dress and Appearance

1-12

Active Duty - Air National Guard Members

11-2

Status of National Guard Members

11-7

Liability of National Guard Medical Personnel

18-8

Medical and Dental Care During Inactive Duty Training

19-8

Quality Force Management Actions

24-12

948

_**Chapter 26, Training**_

_**Section 26-3 Training Outside the United States**_

_**Page 1**_

**Training Outside the United States**

**Updated by Lieutenant Colonel Gina Simonson, March 2015**

**AUTHORITY** : 10 U.S.C. 12301 (b) and (d); _Perpich v. Department of Defense_ , 666 F. Supp. 1319 (D. Ct. Minnesota, 1987), 880 F. 2d 11 (8th Cir. 1989), 496 U.S. 334 (1990). 

## INTRODUCTION

Military training of ANG members overseas is only performed in a Title 10 status pursuant to the U.S. Constitution, Art

1, Section 8, clause 16 (Militia Training Clause) and construing federal law.

**LEGAL BACKGROUND**

During the mid-1980s, in protest against United States actions in Central America, several governors attempted to pre-

vent their Guard units from deploying to Honduras and El Salvador for training. They vocalized, and in a few cases exer-

cised, this statutory authority pursuant to the provisions of 10 U.S.C. 12301(b) and (d), to either consent or object to

the deployment of their respective states' National Guard forces outside the United States.

In response, Congress enacted legislation in the 1986 DoD Authorization Act, which became known as the "Montgomery

Amendment," which limited the rights of governors to object to such training of their states' National Guard. The federal

legislation added:

The consent of a Governor described in subsections (b) and (d) may not be withheld (in whole or in part)

with regard to active duty outside the United States, its territories, and its possessions, because of any

objection to the location, purpose, type, or schedule of such active duty. (10 U.S.C. 12301(f))

**THE PERPICH CASE**

Rudy Perpich, then-Governor of Minnesota, allowed Minnesota National Guard units to deploy overseas and return. He

then filed suit in the U.S. District Court in Minnesota seeking an injunction against the Department of Defense from, in

the future, exercising its powers under the Montgomery Amendment and from limiting a governor's pre-Montgomery

Amendment consent authority. The legal issue was whether the Montgomery Amendment violated the militia training

clause of the U.S. Constitution, Art 1, Section 8, clause 16, which states:

The Congress shall have power. . . To provide for organizing, arming, and disciplining, the Militia, and

for governing such Part of them as may be employed in the Service of the United States, reserving to the

States respectively, the Appointment of the Officers, and the Authority of training the Militia according

to the discipline prescribed by Congress;. . .

**THE DECISION**

On June 11, 1990, the U.S. Supreme Court decided 9-0 against Governor Perpich and in favor of the Department of De-

fense, holding in _Perpich v. Department of Defense_ that the Montgomery Amendment did not violate any constitutional

rights of the states. Article I's plain language, read as a whole, establishes that Congress may authorize members of the

National Guard of the United States to be ordered to active federal duty for purposes of training outside the United

States without either the consent of a state governor or the declaration of a national emergency. This interpretation recog-

nizes the supremacy of federal power in the military affairs area and does not significantly affect either a state's basic

training responsibility or its ability to rely on its own Guard in state emergency situations.

_**Air National Guard Commander's Legal Deskbook**_

949

_**Chapter 26, Training**_

_**Section 26-3 Training Outside the United States**_

_**Page 2**_

The net result is the federal-state relationship within the National Guard, both as to authority and funding support, will

continue as in the past.

_**KWIK-NOTE: Governors cannot withhold consent for ANG training outside the United States.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Active Duty - Air National Guard Members

11-2

Enforceability of Orders by Air Force Officers to ANG Personnel Not in Federal Service

11-5

Status of National Guard Members

11-7

Loan of ANG Officers and Noncommissioned Officers to Allies

15-18

Judge Advocate Support for ANG Units Deploying Overseas

17-5

Training

26-2

_**Air National Guard Commander's Legal Deskbook**_

950

_**Chapter 26, Training**_

_**Section 26-4 Telecommuting**_

_**Page 1**_

**Telecommuting**

**Updated by Lieutenant Colonel Ramon Morales, August 2005**

**AUTHORITY** : ANGI 36-8001, _Air National Guard Traditional Guard Member Telecommuting Policy_ (28 May 2004). 

## INTRODUCTION

Telecommuting is a management tool that allows the ANG to authorize personnel to voluntarily work away from their

official duty location. Computers, telephones, facsimile machines, e-mail, internet, and remote LAN access are the most

common technologies used for telecommuting. ANGI 36-8001, issued on 28 May 2004, is only applicable to traditional

Guardsmen. It authorizes commanders (or their written designees) to allow ANG drill status Guard members to work in

an official capacity for pay and/or points away from the official duty location.

**RESPONSIBILITIES**

**Headquarters, Wing, Group or GSU Commander**

The Headquarters, Wing, Group, or GSU commander (or their written designee) is the approval authority for telecom-

muting. The approval authority should grant telecommuting only when it is in the best interest of the ANG. Telecommut-

ing is a privilege and not a right for the telecommuter. The Commander is responsible for approving the use of

government-owned equipment and supplies. A commander may place government-owned computers, computer soft-

ware, and telecommunications equipment in the telecommuter's alternate work location.

**Supervisor**

The telecommuter's immediate supervisor is responsible for recommending the telecommuting project to the approval

authority, preparing required documents and obtaining any necessary signatures, ensuring that project details are mutu-

ally agreed upon before beginning work, quality control of the telecommuter's completed project and maintaining the

original approved work agreement with a copy to the telecommuter.

**Telecommuter**

The telecommuter is responsible for ensuring the alternate work location is a safe environment, timely reporting any inju-

ries while telecommuting to their supervisor, documenting time spent on an authorized telecommuting project (NGB

Form 3630), ensuring appropriate security measures are followed as to use of a government-provided computer, and sub-

mitting pay documents in a timely manner. The telecommuter, supervisor and approval authority must sign a work agree-

ment (Atch 2), telecommuter checklist (NGB Form 3631), and commander's authorization (Atch 3) before starting the

telecommuting project. The agreement and checklist set forth details regarding the telecommuter's responsibilities, in-

cluding a description of the project, the projected deliverables, start and end date, and type of duty.

**Miscellaneous**

Personnel will be entitled to the same protections and indemnification under the _Federal Tort Claims Act_ as would be available if the services provided through telecommuting were provided at the unit during a Unit Training Assembly (UTA)

or during scheduled active duty. Personnel falsely certifying documents under the telecommuting instruction are subject

to punishment and/or administrative action.

**COMPENSATION**

Telecommuters will be compensated in accordance with their duty status. The approval authority will not authorize

_**Air National Guard Commander's Legal Deskbook**_

951

_**Chapter 26, Training**_

_**Section 26-4 Telecommuting**_

_**Page 2**_

travel or per diem for telecommuting. Telecommuters in a military status may, subject to approval, perform duty on an

incrementally accrued schedule, _i.e.,_ the four hours required for a UTA period may be accrued over a period of days in increments as small as a quarter hour. See NGB Form 3630.

**CONCLUSION**

Telecommuting provides ANG commanders with an alternate means of accomplishing the mission. Commanders may

find telecommuting to be useful as a retention tool – members who are willing to work on special projects or who may

have had to miss scheduled duty because of civilian job or other conflicts, may be permitted to perform the duty at a

time and place which is more convenient for the member, to the benefit of both the member and the unit.

_**KWIK-NOTE: Telecommuting is authorized for ANG members, and should be approved when it is in the best interests of the**_

_**Air National Guard.**_

**RELATED TOPICS:**

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**SECTION**

Ethics

7-3

Fraud, Waste and Abuse

16-7

Lawsuits Against National Guard Personnel

18-6

Issue Items and Equipment Turn-In

25-13

Training

26-2

_**Air National Guard Commander's Legal Deskbook**_

952

**Chapter 27, Travel**

**Table of Contents**

**Section**

28 - 1 Table of Contents

28 - 2 Car Rentals by National Guard Members

28 - 3 Civilian Travel Aboard Military Aircraft

28 - 4 Contract Airlift

28 - 5 Frequent Flyer Programs

28 - 6 Official Travel

28 - 7 Space-Available Travel Aboard Military Aircraft

28 - 8 Space-Required Travel Aboard Military Aircraft

28 - 9 TDY and Travel

28 - 10 Travel Advances

28 - 11 Travel Expenses

28 - 12 Travel Vouchers

28 - 13 Visits to Other Bases

28 - 14 Visits to United States Congress

28 - 15 Government Travel Card

_**Air National Guard Commander's Legal Deskbook**_

953

_**Chapter 27, Travel**_

_**Section 27-2 Car Rentals by National Guard Members**_

_**Page 1**_

**Car Rentals by National Guard Members**

**Updated by Lieutenant Colonel Lt Col Lt Karunesh Khanna, August 2002**

**AUTHORITY** : Title 32, United States Code; Public Law 105-264, Travel and Transportation Reform Act of 1998

(TTRA); Under Secretary of Defense (Comptroller) Memorandum, _Implementation of the Travel Card Requirements Contained_

_in the Travel and Transportation Reform Act of 1998 (TTRA)_ (18 Feb 00); 64 Fed. Reg. 3054, GAO Final Rule re: Mandatory Use of the Travel Charge Card (19 Jan 00); Joint Federal Travel Regulations (JFTR); OpJAGAF 1996/44, _Use/Status of_

_Rental Cars While on Temporary Duty_ (29 Mar 96); OpJAGAF 1988/26, _Car Rental Discounts – Privilege Membership Club Benefits_ (11 Apr 88); OpJAGAF 1984/39, _Propriety of Spouse Accompanying Member in Rental Vehicle on TDY_ (24 Jul 84); Office of Government Ethics Opinion 86x7, 22 July 1986; applicable state law. 

## INTRODUCTION

Rental of motor vehicles from commercial rental companies by National Guard members in a Title 32 duty status can

cause a number of problems for commanders. Generally, members of the National Guard are considered to be "employ-

ees of the federal government" while engaged in training or duty under sections 316, 502, 503, 504, or 505 of Title 32. In

such cases, the members are covered by the Federal Tort Claims Act and are protected from personal liability, as they are

under Title 10, provided they are acting "within the scope" of their employment. This protection, however, does not ap-

ply if the member is performing a state function or is in a state status other than the above ( _e.g._ , State active duty in support of a state function). In such cases, state law should be consulted before the car rental to see if similar protection exists under state law. Therefore, it is important for the commander to be sensitive to the potential liability members of the National Guard face when renting vehicles in support of a unit mission.

**THINGS TO CONSIDER**

First, the commander should consider how members pay for authorized rental cars. Commanders should ensure mem-

bers use the government-sponsored, contractor-issued travel charge card for all expenses arising from reimbursable offi-

cial government travel, including car rental. Not only is use of the travel card mandatory for such expenses, using it for a rental car entitles the member to collision damage coverage for the actual cash value of the damage to the rental car. This

coverage is offered worldwide and will preclude many travelers from filling out long insurance forms prior to renting a

car. To qualify for the auto rental insurance, the traveler must decline the car rental company's collision damage waiver

(CDW/LDW) option, or similar provision, if offered by the car rental company. This is collision damage coverage only. It

does not cover injury to persons, nor to property other than the rental car.

Second, commanders should ensure members use the special government rates negotiated by the Military Traffic Manage-

ment Command (MTMC) by having the Contract Travel Office (CTO) make the car rental reservation. Only "compact"

size cars should be authorized unless the number of passengers or mission requires a larger size. If the member procures

a rental car through a source other than the CTO, the member's reimbursement will be limited to the cost of the rental if

it had been procured through the CTO or the actual cost of the rental, whichever is less.

Some rental car companies also offer the government rental rate to members even when traveling on unofficial or per-

sonal business. A member may use such discounted rates if the member discloses that he is not traveling on official busi-

ness, if the government rate is offered to all federal government employees for personal travel, and unless the member's

official duties involve doing business with the car rental company to create an actual conflict of interest.

Third, Guard members belonging to rental company "membership clubs" may use club benefits such as upgrades, free

weekend rental certificates, hotel or meal coupons, etc. to the extent the benefits flowing from club membership are the

direct result of the member maintaining the membership at personal expense and not as the result of official travel. (In

other words, members must pay the annual membership fee out of their own pockets). "As long as the fees associated

with club membership are borne by the member and not the U.S. Government, we do not believe that the government

_**Air National Guard Commander's Legal Deskbook**_

954

_**Chapter 27, Travel**_

_**Section 27-2 Car Rentals by National Guard Members**_

_**Page 2**_

has any entitlement to the benefits which accrue simply because a club member used one of his or her "chits" while on

official travel." OpJAGAF 1988/26.

Fourth, the commander must be concerned about damage to these vehicles. Accidents happen. Rental vehicles are dam-

aged. However, for TDY personnel in a status listed above on orders authorizing the rental vehicle, a rental car agree-

ment has been negotiated by the Military Traffic Management Command (MTMC). Any vehicle rented by a company

which is a signatory to the agreement has automatic full insurance coverage and the member should not pay for Collision

Damage Waivers (CDW) when the vehicle is being rented. If the member does pay for CDW for a rental within the

United States, the member will not be reimbursed. In addition, the government-sponsored, contractor-issued travel

charge card provides this coverage worldwide, but only if the member does not pay for CDW. Finally, members may have

this coverage as part of their personal auto policy. Commanders should establish a program to assist the members of the

unit in reducing their exposure to risk without needless expense. If a member is required to reimburse the car rental com-

pany for damage to the rented car, the government will reimburse the member for those costs so long as the damage oc-

curred in the performance of official duty.

Fifth, the commander must be concerned with injury to persons. Members are often encouraged by rental agencies to pur-

chase Personal Accident Insurance (PAI), which provides a stated amount of liability insurance for loss of life and medi-

cal benefits. For a member in a Title 10 or Title 32 status, the MTMC rental agreement provides liability coverage. Mem-

bers in any other status should check their personal auto policy to determine if they are covered if in an accident while

driving a rental car in support of a National Guard mission. Depending on State law and their status when the accident

took place, members may have personal exposure for injuries to others if they were negligent.

Note that when a member is authorized a rental car in the CONUS or its territories, any extra insurance offered by the

rental companies and taken by the member is not reimbursable. The cost of buying extra insurance to provide full cover-

age collision insurance outside the CONUS or its territories is reimbursable.

Sixth, the commander may be concerned about spouses or others riding along with traveling members in an authorized

rental car. The Air Force position is if a member rents a vehicle to use for TDY travel, a spouse, or for that matter, anyone else, may ride along as a passenger in the vehicle when the vehicle is an authorized means of conveyance for TDY travel.

**CONCLUSION**

These issues should be reviewed with the Staff Judge Advocate to determine what exposure members of the unit have

when driving a rental vehicle on National Guard business, and whether incurred expenses are reimbursable. Moreover, if

damage to the vehicle, or injury to other persons or the member, issues of Reports of Survey, Line of Duty Determina-

tions, Medical Benefits, Scope of Employment and Federal Tort Claims Act indemnification may arise and should be dis-

cussed with the Staff Judge Advocate.

_**KWIK-NOTE: Weigh carefully the decision to authorize a rental car to members on TDY orders. Supplement this topic with**_

_**applicable state law.**_

**RELATED TOPICS:**

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**SECTION**

Claims

18-2

Lawsuits Against National Guard Personnel

18-6

Driver's Licenses

21-3

Official Travel

27-6

TDY and Travel

27-9

Travel Expenses

27-11

Travel Vouchers

27-12

_****_

_****_

_****_

_****_

_****_

_****_

_****_

_****_

_****_

_****_

_****_

_****_

_**Air National Guard Commander's Legal Deskbook**_

955

_**Chapter 27, Travel**_

_**Section 27-3 Civilian Travel Aboard Military Aircraft**_

_**Page 1**_

**Civilian Travel Aboard Military Aircraft**

**Updated by Major Sotera Anderson, July 2007**

**AUTHORITY** : AFI 35-101, _Public Affairs Policy and Procedures_ (29 Nov 05); DODI 5435.2, _Delegation of Authority to Approve_ _Travel In and Use of Military Carriers for Public Affairs Purposes_ ; DOD 4500.54-G, _Foreign Clearance Guide_ ; AFI 24-101, _Passenger_ _Movement_ ; AFI 11-401, _Aviation Management_ (3 March 2007); OpJAGAF 1994/50, _Use of Reserve Personnel Appropriations for_ _the AFROTC/CAP Initiative Flight Orientation Program_ (18 Jul 94). 

## INTRODUCTION

Civilians may receive approval to travel aboard Department-of-Defense-owned aircraft under certain circumstances

where such travel will provide direct benefit to and be in the interest of the DoD. Approval authority will depend on the

type and purpose of travel. Civilian travel falls under two main categories: Public Affairs Travel and Orientation Flights.

**PUBLIC AFFAIRS (PA) TRAVEL**

PA travel, that is, travel involving civilians aboard military aircraft, either by request or invitation, is intended to increase awareness and understanding of the Air Force's role in national security by inviting certain civilians to Air Force installations, which may include travel on Air Force aircraft. Ordinarily, PA travel will involve transportation of members of the

news media to cover military exercises or operations and local and state government and community leaders to educate

them on a particular unit's military mission.

Travel must reflect the following considerations:

1. Travel cannot compete with commercial carriers.

2. Travel is determined to be primarily in the interest of the DoD.

3. Travel cannot be designed solely to improve relations, increase goodwill, or serve humanitarian purposes.

Eligibility for travel:

1. News media covering military exercises or operations.

2. Individuals on invitational or authorized travel in support of approved PA activities.

3. Individuals who, because of their position and contacts with various public organizations, can make positive contribu-

tions to public understanding of the roles and missions of the DoD.

**Approval**. The PA travel approval process begins in one of two ways: either representatives of the local news media or community contact the base to request the travel, or the base invites the local news media or community members to

travel, subject to the grant of approval for the travel. In either way, the unit's PA Officer coordinates with the civilian representatives, and sends a properly documented request for travel through channels to the appropriate approval authority.

_See_ Table 19.1 of AFI 35-101, _Public Affairs Policy and Procedures_ (29 Nov 05), for a matrix showing approval authorities.

Types of PA events where travel may arise include, but is not limited to, the following:

1. _**Aeromedical Evacuation Flights.**_ Media are permitted to travel aboard medical flights. However, media requests are considered on a case-by-case basis and requires approval of the supported combatant command PA, OASD/PA, the sup-

ported combatant command SG and Air Mobility Command.

2. _**Air Force Tour Program.**_ Different types of tours exist within the Program: National Civic Outreach, Community Relations and base tours. Each type of tour is conducted under the same basic guidelines. However, if a tour is three or more

days in duration, a waiver by SAF/PANC is required prior to invitations being sent out. Such a request must include

_**Air National Guard Commander's Legal Deskbook**_

956

_**Chapter 27, Travel**_

_**Section 27-3 Civilian Travel Aboard Military Aircraft**_

_**Page 2**_

an itinerary, a letter of justification, as well as indicate any special aircraft configurations, among other items unrelated to the travel portion of the tour. For specific guidance see AFI 35-101, Paragraph 8.37, _Public Affairs Policy and Procedures_ (29

Nov 05).

Prior to planning or scheduling a tour, complete and forward a tour plan template (found at Figure 8.1 of AFI 35-101) to

the MAJCOM PA office for approval. MAJCOMs sponsoring tours must submit their completed tour plan template to

SAF/PANC for review.

Funding will depend on the type of tour: National Civic Outreach Tours are centrally funded and managed at SAF/PANC,

whereas Community Relations Tours are funded through the sponsors' own budgeting process. The Air Force Tour Pro-

gram is supported as a special assignment airlift mission (SAAM) and commands are charged according to current

hourly rates and type of aircraft.

NOTE: Civilian visitors are not permitted to operate any item of military equipment when such operation could cause, or

reasonably be perceived as causing, an increased safety risk, including any aspect of the operation of military aircraft.

3. _**Overseas Travel.**_ Country clearance is required from the American Embassy as appropriate, for personnel traveling to that country. Theater clearance is required from the combatant command for visits to overseas military activities on matter pertaining to the mission of the combatant command. Thirty days advance notice is typically required and the require-

ments to obtain clearance is detailed and specific. For specific requirements, see AFI 35- 101, Paragraph 19.5, _Public Affairs Policy and Procedures_ (29 Nov 05).

4. _**Media Travel.**_ The categories for media travel are local, non-local and overseas. Media travel on an Air Force aircraft must be integral to the news coverage to be developed, such as demonstrating Air Force capability or to convey or enhance an Air Force position.

After the travel is completed, the unit PAO is required to send an after-action report of the travel to NGB-PA.

Transportation for news coverage of an emergency nature, such as a plane crash or other calamity, should be provided

only where media coverage of the event will be impaired or delayed to the serious detriment of the Air Force and Air Na-

tional Guard unless space aboard DoD aircraft is provided. Such requests must have higher headquarters approval.

Issues which arise concerning public affairs travel should be coordinated with PA and JA representatives, as necessary.

**ORIENTATION FLIGHTS**

Orientation flights are continuous flights within the local flying area which terminate at the point of origin, and which

are designed to reward or motivate unit personnel, ensure a better understanding of a particular weapons system and its

role in the ANG mission, or which are determined to be in the best interest of the Air National Guard. Eligible categories

of passengers include: ROTC cadets, Civil Air Patrol cadets, Explorer Scouts, FAA officials, and certain local public offi-

cials. Travelers must be in appropriate organizational uniforms, where appropriate, and have written parental consent if

under 18 years of age. See Table 1.1 of AFI 11-401, _Aviation Management_ (7 March 2007), for a matrix showing approval authorities for orientation flights.

_**Air National Guard Commander's Legal Deskbook**_

957

_**Chapter 27, Travel**_

_**Section 27-4 Contract Airlift**_

_**Page 1**_

**Contract Airlift**

**Updated by Major Glenn Rowley, June 2001**

**AUTHORITY** : 10 U.S.C. 2640; DoDD 4500.53, _Department of Defense Commercial Air Transportation Quality and Safety Review_ _Program_ (12 Dec 00); 32 C.F.R. Part 861.

**BACKGROUND OF CONTRACT AIRLIFT LAW**

As the result of 248 U.S. service member and eight aircrew fatalities in the crash of an Arrow Air contract flight at Gan-

der IAP, Newfoundland, on 12 December 1985, 10 U.S.C. Chapter 157 was amended and DoDD 4500.53 was adopted.

The above legislation and DoD directive reflect DoD's safety concerns regarding commercial airlift carriers and provide

enhanced legal authority for DoD to review and impose tough sanctions against commercial air carriers serving DoD to

assure high standards of safety and airworthiness.

**REQUIREMENTS**

The Secretary of Defense may not enter into contract with a commercial air carrier for the charter air transportation of

members of the armed forces unless the carrier:

1. Meets, at a minimum, the safety standards established by the Federal Aviation Act of 1958;

2. Has at least 12 months of experience operating services in air transportation that are substantially equivalent to the

service sought by the DoD; and

3. Undergoes a technical safety evaluation which includes inspection of a representative number of aircraft.

**INSPECTIONS**

Each carrier that contracts with DoD for charter air transportation of members of the armed forces will be inspected. The

Air Mobility Command (AMC) as the single DoD manager for movement of passengers and cargo by air, has increased

inspection powers under this legislation. At a minimum, these inspections include:

1. An on-site capability survey of the air carrier at least once every two years;

2. A performance evaluation of the air carrier at least once every six months;

3. A preflight safety inspection of each aircraft conducted at any time during the operation of, but not more than 72

hours before, each internationally scheduled charter mission departing the U.S.;

4. A preflight safety inspection of each aircraft used for domestic charter missions conducted to the greatest extent practicable; and

5. Operational check-rides on aircraft conducted periodically.

**COMMERCIAL AIRLIFT REVIEW BOARD (CARB)**

The CARB, established by the Secretary of Defense under the statute, is composed of four general/flag officers or Senior

Executive Service members from USTRANSCOM and its component commands. It has authority over DoD contract carri-

ers and carriers which provide air transportation purchased by DoD individuals for which government reimbursement

(GTRs) will be made. The Secretary of Defense, through the CARB, can suspend DoD use of these carriers if they are in-

volved in a serious accident or are in violation of Title VI of the Federal Aviation Act of 1958 which prescribes various

safety requirements. Reasons for suspensions have ranged from equipment condition to maintenance and quality assur-

ance practices.

_**Air National Guard Commander's Legal Deskbook**_

958

_**Chapter 27, Travel**_

_**Section 27-4 Contract Airlift**_

_**Page 2**_

**AUTHORITY TO LEAVE UNSAFE AIRCRAFT**

A representative of AMC, MTMC, or another Secretary of Defense designated agency (or, if no representative is reasona-

bly available, the senior officer on board a chartered aircraft) may order armed forces members to leave a chartered air-

craft if the representative (or officer) determines that a condition exists on the aircraft which may endanger the safety of the armed forces members. _**THIS AUTHORITY POTENTIALLY ENABLES ON-BOARD ANG COMMANDERS OR OFFI-**_

_**CERS TO ORDER THEIR MEMBERS OFF AN UNSAFE AIRCRAFT.**_

**CONCLUSION**

Because the statute and regulations may change from time to time, it is suggested that commanders check with their

Judge Advocates periodically to determine if the authority for ANG commanders or officers (if they are the senior officer

on board a chartered aircraft) has been amended in any way.

_**KWIK-NOTE: All commanders or officers who accompany their unit members on chartered commercial flights should be**_

_**aware of the power to remove them from unsafe flights.**_

**RELATED TOPICS:**

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**SECTION**

Sources of Commander's Authority

2-7

_**Air National Guard Commander's Legal Deskbook**_

959

_**Chapter 27, Travel**_

_**Section 27-5 Frequent Flyer Programs**_

_**Page 1**_

**Frequent Flyer Programs**

**Updated by Second Lieutenant Karunesh Khanna, August 2002**

**AUTHORITY** : FY2002 DoD Authorization Act (Public Law 107-107, Section 116) (28 December 2001); 5 C.F.R. Part

2635, _Standards of Ethical Conduct for Employees of the Executive Branch, Subpart D, Conflicting Financial Interests_ ; Joint Federal Travel Regulation (JFTR), Volume I (uniformed members) and Joint Travel Regulation (JTR) Volume II (civilian employees) (revised 31 December 2001); 64 Fed. Reg. 3054, GAO Final Rule re: Mandatory Use of the Travel Charge Card (19

Jan 00); TJAG Policy Letter 8, _Frequent Flyer Programs_ (4 Feb 98); OpJAGAF 1993/51, _Use of Airline Frequent Flyer Miles_ (14

May 93); OpJAGAF 1993/75, _Use of Government Accrued Frequent Flyer Miles_ (29 Jul 93); 5 U.S.C. 5701. 

## INTRODUCTION

Ethics regulations permit federal employees, including military members and their families, who receive a promotional

item as a result of traveling at government expense to keep the item for personal use under certain conditions.

**THE RULES**

The following rules outline the policy regarding Air Force and Guard personnel who participate in frequent flyer pro-

grams (FFPs) sponsored by commercial airline carriers. These rules are applicable to Guard members and employees en-

rolled in FFPs who accumulate "bonus" mileage and other benefits while performing official government travel:

1. Federal employees and military members, and their families, who receive a promotional item as a result of traveling at

government expense, or while traveling on official duty at the expense of a non-federal entity under 31 U.S.C. 1353, are

permitted to keep the item for personal use if the item: (1) is available to the public under the same terms; and (2) can

be accepted at no additional cost to the government.

2. A bonus or discount ticket received by a member or employee as a result of trips paid by appropriated funds while on

official travel is the property of the member or employee.

3. Access to VIP lounges or free food or drink offered to individuals due to their status as a member of FFPs or given to

all passengers, may be accepted. In addition, "on-the-spot" upgrades may also be accepted provided they are not offered

because of one's official position.

4. Members and employees must travel by coach class, unless other accommodations are approved in advance of air

travel in accordance with applicable travel regulations. Mileage credits accumulated while traveling on official business

may be used to upgrade to first class, as long as there is no additional charge to the government and the upgrade is of-

fered to the employee on the same terms as a member of the public. This means that while employees and members must

generally perform official travel by using coach class accommodations, employees my upgrade transportation services at

their own expense, which includes the use of personal frequent traveler mileage or upgrade benefits. The restriction on

first class travel at government expense remains unchanged ( _see_ FTR 301-10.123 and JFTR U3125 for additional guid-

ance). Air Force personnel may not wear their military uniforms when using frequent flyer miles to upgrade to business

or first class.

[Note: The law specifically permits the retention of travel benefits accrued while performing official travel funded by a

non-Federal source under 31 U.S.C. 1353. However, the JFTR and JTR implementing regulations do not apply to situa-

tions where official travel is funded under 31 U.S.C. 1353. Instead, the guidance directs travelers to seek guidance form

the "funding authority." DoD officials take the position that DoD regulations do not preclude the personal use of travel

benefits earned while performing official travel funded by a non-Federal source under 31 U.S.C. 1353 if the donor-

sponsor does not object.]

_**Air National Guard Commander's Legal Deskbook**_

960

_**Chapter 27, Travel**_

_**Section 27-5 Frequent Flyer Programs**_

_**Page 2**_

**THE INVOLUNTARY BUMP RULE**

5. If a member or employee on official business is involuntarily "bumped," delayed, or otherwise inconvenienced by the

airline from a scheduled flight and accepts money, complimentary tickets, or lodging certificates from the airline,

whether or not the government incurs additional subsistence expense or the traveler reports for duty at the same time as

originally intended, the traveler must turn in such items received with the TDY travel voucher, and the government pays

for any additional per diem associated with the delay; and

7. Lodging certificates provided by hotels that overbook also belong to the government.

8. Members and employees on official business who voluntarily relinquish a seat and accept payment from an airline may

keep the payment, but may not seek additional reimbursement from the government for expenses incurred by the result-

ing delay ( _i.e._ , per diem, lodging, miscellaneous expenses).

**PART PERSONAL, PART "OFFICIAL" – PRIOR TO 28 DECEMBER 2001**

9. In those instances, prior to 28 December 2001 when the ethics rules changed to permit members to keep bonus miles,

and where FFP participants may have unintentionally "commingled" personally earned mileage with official business

travel mileage, the participants now may use the mileage for personal use, as long as that portion of the mileage earned

on official government business was earned when it was available to the public under the same terms and was accepted

at no additional cost to the government.

10. Official travelers are required to use the government travel card to cover official expenses. Thus, a traveler who has a personal credit card that would generate more desirable travel benefits in conjunction with an official trip cannot use that personal credit card in lieu of the government travel card.

_**KWIK-NOTE: ANG members may personally benefit from mileage accrued in a Frequent Flyer Program because of official**_

_**travel. However, supervisors must exercise care to ensure the travel system is not abused. Travel-approving authorities are**_

_**encouraged to ensure that government expenses are not inflated in an attempt to maximum frequent flier benefits.**_

**RELATED TOPICS:**

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**SECTION**

Ethics

7-3

Fraud, Waste and Abuse

16-7

Car Rentals by National Guard Members

27-2

Official Travel

27-6

_**Air National Guard Commander's Legal Deskbook**_

961

_**Chapter 27, Travel**_

_**Section 27-6 Official Travel**_

_**Page 1**_

**Official Travel**

**Updated by Second Lieutenant Karunesh Khanna, August 2002**

**AUTHORITY** : Joint Federal Travel Regulations, Vol. I (military) and Joint Travel Regulations, Vol. II (civilian) (revised 31 December 01); AFI 24-101, _Passenger Movement_ (25 Mar 01); AFPD 24-1, _Personnel Movement_ (1 Sep 95); AFI 65-103, _Temporary Duty Orders_ (23 Feb 01); AFMAN 34-255, _Directory of Government Quarters and Dining Facilities_ (1Jan 98). 

## INTRODUCTION

"Official travel" means travel undertaken pursuant to published orders for official purposes. Official travel can be accom-

plished by either military or civilian personnel under appropriate orders. Official travel expenses are reimbursed by com-

pleting and submitting a Travel Voucher, DD Form 1351-2, to the Travel Section within the Financial Management Office.

**ORDERS**

All official travel is undertaken pursuant to properly issued orders. Travel orders are published by Information Manage-

ment (IM) and must be obtained in advance through the unit orderly room. Travel orders specify your itinerary, mode of

travel, days in TDY status, per diem and travel costs, and other pertinent information about your trip. These orders also

include an accounting citation which specifies the government funds from which your trip expenses will be paid.

You should carry at least a dozen copies of your travel orders with you during your trip. Copies often must be provided

to the Transportation Management Office (TMO) or the Government-Contracted Commercial Travel Office (formerly

SATO, currently Carlson-Wagonlit Travel, Omega World, or another regional agency), when you make travel arrange-

ments, as well as to the billeting office at your temporary duty (TDY) location, if you will be staying in DoD facilities.

**TRAVEL ADVANCES**

Government travelers are now required to use a Government Travel Card (GTC) (currently through Bank of America) to

charge authorized travel expenses incurred during official travel and to obtain cash advances. _See_ Chapter 27-11. The GTC has taken the place of the travel advance issued through your AFO. The application may be obtained through your

local finance office.

**AIRPLANE TRAVEL**

If traveling by commercial airplane, you must obtain tickets through your servicing TMO or the Contracted Commercial

Travel Office (CTO). The servicing TMO or CTO will schedule your travel using the most cost-effective government fare

on commercial airlines. In most cases, these special fares permit scheduling changes without penalty. If changes in your

travel arrangements are necessary during the course of your TDY, contact the nearest TMO or CTO for assistance, or call

your airline directly. Be aware that certain routes require you to fly specified airlines, and failure to do so must often be explained in writing. In overseas areas, U.S. flag carriers should be used whenever possible. If emergency conditions require, travelers may use the government travel card to purchase airline tickets.

**BILLETING**

Billeting arrangements should be made as soon as possible directly with the facility where you will be staying. If you will

be staying at a commercial hotel, always ask for a U.S. Government rate. Members who stay in a commercial hotel may

be reimbursed up to the maximum local per diem room rate. Current maximum reimbursable rates are available on-line

at http://www.dtic.mil/perdiem.  In some circumstances, you may make arrangements to stay in base billeting facilities, only to find upon arrival that there are no rooms available on base. If this happens, the billeting office will make arrangements for you to stay at a nearby civilian hotel. If this happens, ask the billeting office for a Certificate of Nonavailability of Government Quarters, which will entitle you to reimbursement for the civilian hotel expense.

_**Air National Guard Commander's Legal Deskbook**_

962

_**Chapter 27, Travel**_

_**Section 27-6 Official Travel**_

_**Page 2**_

Distinguished Visitor (DV) quarters on DoD installations are usually available for officers in the grades of 0-6 and

higher, or enlisted members in the grade of E-9. DV quarters are allocated on the basis of grade. For example, if you are

an 0-6, and an 0-7 happens to also be visiting the base, the more senior officer will have priority for DV quarters.

**PRIVATE VEHICLES**

Authority to travel by privately owned conveyance (POC) or use of a rental car at the TDY location must be specifically

approved in your travel orders. Car rentals or POC travel not included in your orders will, in most cases, not be reim-

bursed.

_**KWIK-NOTE: Always keep a copy of your travel orders on your person, and leave a copy at home with your dependents.**_

**RELATED TOPICS:**

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**SECTION**

Orders - Problem Areas

1-25

Fraud, Waste and Abuse

16-7

Car Rentals by National Guard Members

27-2

TDY and Travel

27-9

Travel Advances

27-10

Travel Expenses

27-11

Travel Vouchers

27-12

Government Travel Card

27-15

_**Air National Guard Commander's Legal Deskbook**_

963

_**Chapter 27, Travel**_

_**Section 27-7 Space-Available Travel Aboard Military Aircraft**_

_**Page 1**_

**Space-Available Travel Aboard Military Aircraft**

**Updated by Major Glenn Rowley, June 2001**

**AUTHORITY** : DoD 4515.13-R, _Air Transportation Eligibility_ (Nov 94, C3, 9 Apr 98), Chapters 4, 6; AFI 24-101, _Passenger_ _Movement_ (1 Oct 95); AFI 36-3003, _Military Leave Program_ (14 Apr 00); 2000 National Defense Authorization Act.

**ELIGIBILITY**

Air National Guard members qualify for space-available transportation on DoD flights involving both DoD-owned assets

and commercial aircraft under contract to and scheduled by the Air Mobility Command (AMC). Authorized traffic mov-

ing between the continental United States (CONUS) and overseas areas, and traffic within overseas areas, usually will be

transported by contract aircraft. ANG members are granted a lower priority for these flights than active duty members.

Space-available transportation is provided aboard both DoD-owned and contract aircraft on a first-come, first-served ba-

sis according to specific categories of priority listed in DoD 4515.13-R. Reservations are not accepted for space-available

passengers. Members desiring space-available travel must register for their desired destinations, usually in person, at the

servicing AMC terminal.

Passengers are selected based first upon the category to which they belong, then on their position on the list for their

category. For example: the terminal representative calls all Category 1 members on the list; those who signed up first will

be taken first, in order of their sign-up. When the Category 1 list is exhausted for that particular location or flight, the terminal representative will then start to draw from the Category 2A list. If all Category 2A passengers are given seats,

then they continue to distribute seats to Category 2B passengers in the order in which they signed up, until the seats are

gone.

**REQUIREMENTS**

Passengers must be present at the terminal when a seat is offered; this is often two hours prior to departure time. Those

who decline a seat or who are not available to accept the seat when offered are removed from the list.

DoD makes no guarantees whatsoever regarding continuation of travel or return to the point of origin for any space-

available passenger. It is not unusual for an individual to be "bumped" from a flight during a stopover by someone with a

higher priority. For example, if a flight is full and an individual at an intermediate stop is in emergency leave status (Category 1), then a passenger on the flight in ordinary leave status (Category 2B) will have to surrender that seat where the

Category 1 member boards the aircraft.

Active duty members on ordinary leave must present a valid leave authorization and a military identification card to fly

space-available. ANG members must present a military identification card and a properly completed DD Form 1853,

Authentication of Reserve Status for Travel Eligibility, to qualify for space-available transportation. Retired members and

dependents must present an appropriate military retired or dependent identification card.

All space-available travelers are restricted to checking two pieces of luggage not to exceed 70 pounds each or 62 linear

inches (the sum of length plus width plus the height). Passengers are allowed to hand-carry small luggage not to exceed

45 linear inches. The luggage must fit under the seat in front of them or in the overhead. Small luggage includes over-

night bags, make-up cases, diaper bags, briefcases, etc.

Cat B travel is now permitted in appropriate civilian attire. Appropriate attire is defined as no shorts, tank tops, halters, or garments depicting obscene or offensive phrases or designs. Spouses and children should also be encouraged to dress

appropriately. The key phrase here is, "Use common sense." Members whose clothing does not conform to the above will

be denied travel.

_**Air National Guard Commander's Legal Deskbook**_

964

_**Chapter 27, Travel**_

_**Section 27-7 Space-Available Travel Aboard Military Aircraft**_

_**Page 2**_

Military protocol dictates that the highest-ranking passenger will depart the aircraft first in most situations.

**TRAVEL BETWEEN CONUS AND OVERSEAS**

ANG members are eligible only for space-available travel to and from Alaska, Hawaii, Puerto Rico, the Virgin Islands,

and Guam. They are not eligible for space-available travel to foreign countries, except from authorized departure points

within the CONUS to overseas locations to perform IDTs. ANG members are granted Category 4 priority for space-

available travel between CONUS and overseas, along with retirees and their dependents.

This category places ANG members behind active duty members on emergency leave and regular leave, as well as active-

duty dependents accompanying their sponsors. Space-available travel is granted to these dependents under very limited

circumstances, and only then for the trans-oceanic portion of overseas travel.

**TRAVEL WITHIN CONUS**

ANG members are granted Category 4 priority for space-available travel within CONUS, behind active-duty members on

leave, Medal of Honor winners, and those on permissive TDY. They share Category 4 priority with retired military mem-

bers. Dependents are not eligible for space-available travel within CONUS.

Air National Guard members qualify for active duty priorities when in Title 10 status. The above priorities apply only to

those in a reserve status.

**CONCLUSION**

You may obtain current information on Space-Available Travel from ARPC, c/o Entitlements Branch, Denver, CO 80280-

5000, which publishes an ARPC Fact Sheet for this subject. To aid your recruiting and retention, widely disseminate this

information among your unit members.

_**KWIK-NOTE: Space-available travelers should always check the current status of priorities and flight destinations with the**_

_**AMC terminal from which they will fly well before the actual flight.**_

**RELATED TOPICS:**

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**SECTION**

Space-Required Travel Aboard Military Aircraft

27-8

_**Air National Guard Commander's Legal Deskbook**_

965

_**Chapter 27, Travel**_

_**Section 27-8 Space-required Travel Aboard Military Aircraft**_

_**Page 1**_

**Space-Available Travel Aboard Military Aircraft**

**Updated by Second Lieutenant Karunesh Khanna, August 2002**

**AUTHORITY** : DoD 4515.13-R, _Air Transportation Eligibility_ (Nov 94, C3, 9 Apr 98); 10 U.S.C. 18505 (as amended by Public Law 106-398, FY 2001 National Defense Authorization Act (30 Oct 00), Section 384); AFI 24-101, _Passenger Movement_

(25 Mar 02).

**ELIGIBILITY**

Air National Guard members qualify for space-required transportation aboard DoD aircraft when performing mission-

essential travel. This includes flights on both DoD-owned assets and Air Mobility Command procured channel airlift

services. Authorized traffic moving between the continental United States (CONUS) and overseas areas, and traffic

within overseas areas usually will be transported by airlift aircraft.

Space-required travel aboard military aircraft is paid for by the sponsoring organization or home station. Passengers

must possess official travel orders, temporary active duty (TDY) orders, or transportation authorizations which include

appropriate fund cites or the name and address of the issuing organization. Additionally, under the recent amendment to

10 U.S.C. 18505, members can now travel on DoD aircraft worldwide in a space-required status from their home to their

authorized IDT assembly when performing IDT training. The travel eligibility is non-chargeable if the member moves on

DoD aircraft. Seat reservations can be made 30 days in advance of travel for certain destinations. Members must provide

written authorization for travel. All charges above and beyond the seat tariff rate are the responsibility of the member

(head tax, excess baggage, federal inspection fees, meal charges, etc.). Members cannot use this travel in conjunction

with man-days and annual tours.

ANG members on active duty traveling under official orders qualify as Priority 2 passengers (just below those on emer-

gency leave). ANG members traveling to perform IDTs qualify as Priority 4 passengers. As Space-Required travelers, Pri-

ority 4 passengers have priority over all space-available travelers. Dependents are eligible for space-required travel as paying passengers if traveling to, from, or between overseas areas pursuant to competent PCS orders. Unlike space-available

travel, there are no geographic limitations on space-required travel based upon the STATUS of the ANG member.

**REQUIREMENTS**

Active duty military, National Guard, and reserve personnel no longer must be in uniform for all flights; however, mis-

sion commanders may require uniforms be worn in certain situations. Civilian clothing must be in good taste and not

conflict with accepted attire at the destination. Appropriate attire does not include shorts, tank tops or garments depict-

ing obscene or offensive phrases or designs. Members whose clothing does not conform will be denied travel. Military

protocol dictates that the highest-ranking passenger will depart the aircraft first in most situations.

Travelers are allowed to check two pieces of luggage not to exceed 70 pounds each or 62 linear inches (the sum of the

length plus width plus height). Passengers are allowed to hand-carry small luggage not to exceed 45 linear inches. The

luggage must fit under the seat in front of them or in the overhead. Travelers on contract aircraft may have more than 70

pounds per person, but might be required to pay excess baggage charges at the established tariff rate.

Space-required travel may be reserved through the local military terminal or the AMC Passenger Reservations Center.

_**KWIK-NOTE: No ANG member will be permitted on military aircraft without appropriate orders or written authorization.**_

**RELATED TOPICS:**

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****

****

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****

****

**SECTION**

Space-Required Travel Aboard Military Aircraft

27-8

_**Air National Guard Commander's Legal Deskbook**_

966

_**Chapter 27, Travel**_

_**Section 27-9 TDY and Travel**_

_**Page 1**_

**TDY and Travel**

**Updated by Second Lieutenant Karunesh Khanna, August 2002**

**AUTHORITY** : Joint Federal Travel Regulations (JFTR), Vol. 1, Appendix A; Joint Travel Regulations, Vol. II (31 Dec 01) HQ; AFI 65-103, _Temporary Duty Orders_ (23 Feb 01); AFI 10-215, _Personnel Support for Contingency Operations_ (1 May 99).

**LIMITS**

Temporary Duty (TDY) tours are limited to six (6) months at any one location. Air Force policy limits funded TDY to

179 days (including travel time) except when approved in advance by the Secretary of the Air Force. TDY to attend

courses of instruction may not exceed 20 weeks at one location (not including travel time). Holidays or periods of time

when classes are suspended do not extend course duration.

**APPROPRIATENESS OF TDY**

Issuing or approval authorities decide if TDY is appropriate. Among the factors to consider are:

1. Is there a cheaper means of communication such as a call, message or letter sufficient to meet the desired goal;

2. The number of people who must travel for a single purpose should be minimized;

3. Can individuals nearer the TDY location do the job;

4. Review and reauthorize, if needed, all blanket and repeated travel orders ensuring minimum travel is accomplished

consistent with command or the unit mission; and

5. Combine missions to carry out multipurpose results with the goal of reducing unnecessary trips, number of people

traveling, places to be visited, variations in itineraries and length of trips.

**TDY PROCEDURES TO ESTABLISH**

Issuing and authorizing officials should establish procedures to:

1. Keep personnel participation at CONUS conferences, meetings and seminars to a minimum when travel is at govern-

ment expense and does not relate directly to the mission;

2. Screen all requests for foreign travel to keep attendance at foreign conferences to a minimum and assure the USAF For-

eign Clearance Guide is complied with before travel begins;

3. Coordinate local transportation requirements when sponsoring meetings and conferences to keep costs at a minimum;

4. Determine whether travel at government expense is mission or administrative in nature;

5. Plan far enough in advance to obtain appropriate discounts;

6. Direct the use of government procured transportation when appropriate and determine modes of transportation di-

rected or authorized; and

7. Determine whether the individual will be carrying classified information or firearms and/or traveling to high-risk areas

as special regulations will apply.

**ORDERS**

Commanders should be aware special regulations and restrictions control the following types of TDY orders:

1. Blanket TDY;

2. Repeated TDY;

3. Permissive or No Expense to Government Orders;

4. NATO Travel Orders; and

5. CED (Contingency, Exercise, Deployment) Orders.

_**Air National Guard Commander's Legal Deskbook**_

967

_**Chapter 27, Travel**_

_**Section 27-9 TDY and Travel**_

_**Page 2**_

Among items which you will want to ensure are contained on TDY orders are:

1. Security clearance;

2. Whether use of a private vehicle or rental vehicle is authorized;

3. A detailed description of the purpose of the trip as this will be useful for later audit purposes; and

4. Names of dependents.

If a traditional Guard member or AGR member is traveling in Title 10 status, it is important the orders contain a nota-

tion that the member is assigned to the 201st MSS, Andrews AFB, MD for the purposes of administrative control (AD-

CON) and attached for a federal mission to [name of the active duty organization to which the member is assigned] for

operational control (OPCON). Any traditional Guard member or AGR member traveling OCONUS must be in Title 10

status.

_**KWIK-NOTE: Authorize only necessary TDY for the minimum time to accomplish its purpose.**_

**RELATED TOPICS:**

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****

****

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****

**SECTION**

Orders - Problem Areas

1-25

Travel Advances

27-10

Travel Expenses

27-11

Travel Vouchers

27-12

Visits to Other Bases

27-13

_**Air National Guard Commander's Legal Deskbook**_

968

_**Chapter 27, Travel**_

_**Section 27-10 Travel Advances**_

_**Page 1**_

**Travel Advances**

**Updated by Second Lieutenant Karunesh Khanna, August 2002**

**AUTHORITY** : Joint Federal Travel Regulation, Vol. I (military) and Joint Travel Regulation, Vol. II (civilian) (31 Dec 01); AFI 65-103, _Temporary Duty Orders_ (23 Feb 01); AFI 36-2906, _Personal Financial Responsibility_ (1 Jan 98); AFMAN 34-255, _Directory of Government Quarters and Dining Facilities_ (1 Jan 98).

**HOW TO GET IT**

Official travelers may obtain an advance of their travel expenses solely through a Government Travel Card (GTC) pro-

gram. All ANG travelers are eligible for the card, however, commanders have the authority to deny a card to anyone with

financial problems or a history of card abuse. Members may obtain a card application from your local finance office. The

finance office will forward the application to the bank. New card applications will be processed within three business

days of receipt. Rush processing for delivery of GTCs within 24 hours is available at an extra charge to the government.

Members are required to use the GTC for all official travel.

**GOVERNMENT TRAVEL CARD**

**Cash Advance** : GTC holders may obtain advance travel payments through automatic teller machines (ATMs). There are

maximum per-day dollar limits for travel advances payable through the ATM system per day and per 7-day period. The

benefit to travelers is that they have access to a regular supply of cash for meals and incidental expenses during the TDY

without the need to carry large sums of cash, which are susceptible to theft or other loss.

All cardholders will automatically receive a Personal Identification Number (PIN) with the card. This PIN allows cash

withdrawals from most ATMs. PINs are received by mail usually within 10 days after receiving the card.

Travelers in possession of or eligible for a card are limited to the following amounts of travel advances: 100% for meals

and incidental expenses, and 80% for all authorized and allowable expenses such as meals, lodging and incidentals (taxi,

registration) when the card cannot be used.

**HOW TO REPORT IT**

Once travel is completed, members should file DD Form 1351-2, Travel Voucher or Sub-voucher, to obtain full reimburse-

ment. Members should use reimbursements to pay the card company. Cardholder statements are payable in full upon re-

ceipt and delinquency will not be tolerated. A long TDY trip is no excuse for late payment of the GTC bill. Members on a

long TDY may make arrangements with the finance office to submit a voucher for payment for a portion of the TDY ( _i.e.,_

monthly vouchers for extended TDY).

_**KWIK-NOTE: The Government Travel Card program is easily abused. Ensure members know they may use the GTC ONLY**_

_**for official travel expenses.**_

**RELATED TOPICS:**

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**SECTION**

Ethics

7-3

Fraud, Waste and Abuse

16-7

Official Travel

27-6

TDY and Travel

27-9

Travel Expenses

27-11

Travel Vouchers

27-12

Government Travel Card

27-15

_****_

_**Air National Guard Commander's Legal Deskbook**_

969

_**Chapter 27, Travel**_

_**Section 27-11 Travel Expenses**_

_**Page 1**_

**Travel Expenses**

**Updated by Captain Tim Pomeroy, September 2007**

**AUTHORITY** : Public Law 105-264, Travel and Transportation Reform Act of 1998 (TTRA); Under Secretary of Defense

(Comptroller) Memorandum, _Implementation of the Travel Card Requirements Contained in the Travel and Transportation Reform_ _Act of 1998_ (TTRA) (18 Feb 00); Joint Federal Travel Regulation, Vol. I (military) and Joint Travel Regulation, Vol. II (civilian) (31 Dec 01); DoD 7000.14-R, _DoD Financial Management Regulation_ , Vol. 9, Travel Policy and Procedures (Apr 2007); AFI 65-103, _Temporary Duty Orders_ (5 Aug 05).

**REIMBURSEMENT**

Travel expenses incurred for official travel are reimbursed by completing and submitting a Travel Voucher, DD Form

1351-2, to your servicing finance office.

**GOVERNMENT TRAVEL CARD**

Government travelers are issued Government Travel Cards (GTC) for use in connection with official travel. Prior to issu-

ing a GTC, the bank will perform a credit check. It may recommend a restricted GTC be issued when the member is con-

sidered a credit risk or has no credit record. Individuals that refuse a credit check will be issued a restricted GTC. The

bank is permitted to establish lower cash and credit line limits for both standard and restricted GTCs by amendment to

individual GTC holders' agreements.

GTC holders are required to use the GTC for all official travel expenses, including hotels, air fare (air fares may be

charged to a central account instead of the members' individual travel card) and rental cars. Charges which are not re-

quired to be charged to the GTC are: expenses incurred at a vendor that does not accept the GTC; all expenses covered

by the "meals and incidentals" portion of the per diem allowance; laundry/dry cleaning expenses; parking expenses; local

transportation system fares; taxi fares; tips; or telephone calls (when a government calling card is available for use in accordance with agency policy). Exempted expenses incurred during official travel may be paid using the GTC on a volun-

tary basis, or the member may use any of the following approved alternative payment methods: cash; personal check,

charge or debit card, ATM, or travel advances.

**RECORD KEEPING**

Use of the GTC provides an excellent way to keep track of official travel expenses and to obtain authorized travel cash

advances. The card holder remains personally liable for all charges on the GTC, and must always file a travel voucher to

obtain reimbursement of official travel expenses.

The traveler's primary responsibility is to properly complete and submit the travel voucher to the servicing finance office

as soon as possible, and to provide all necessary supporting documentation. Travel vouchers should be prepared and sub-

mitted within five workdays after completion of the official travel. The servicing finance office will issue payment by di-

rect deposit. For many ANG bases, payment is usually handled through the nearest Operating Location (OpLoc) of the

Defense Finance and Accounting Service (DFAS).

**REASONABLE EXPENSES**

Travelers are reimbursed nearly all reasonable expenses incurred in connection with their official travel according to a

complex set of schedules and charges by location. Per diem rates include lodging and meals and incidental expenses. Ac-

tual lodging expenses are paid for either government quarters or commercial hotel rates, up to the maximum set by the

JTR for the particular area. The traveler also receives a meals and incidental expenses (M & IE) payment for each TDY

day at a particular location. Different meals and incidentals rates are established for every TDY location, and vary

_**Air National Guard Commander's Legal Deskbook**_

970

_**Chapter 27, Travel**_

_**Section 27-11 Travel Expenses**_

_**Page 2**_

according to whether the traveler is housed on-base or off-base. Per diem is designed to reasonably defray the costs for

meals and incidental expenses during the trip. Members are required to use government billeting and mess, whenever

available. Civilian employees are normally required to use government billeting when available and are allowed to use

the government mess, though they are not required to do so. If government billeting is not available, members should

obtain a statement of non-availability from the billeting office at the TDY location.

**VEHICLES**

Travel by privately-owned vehicle (POV) is reimbursed per mile for official miles traveled. Rental of a car at the TDY loca-

tion is reimbursed at the government rate, provided the use of a rental car is specifically authorized by the travel orders.

If the original travel orders did not authorize a rental car but one was rented, the member must show necessity and the

unit designee must approve the expense. Commercial transportation is reimbursable when used for official business;

claims for such expenses over $75.00 must be accompanied by a receipt submitted with the travel voucher.

**TRAVEL VOUCHERS**

Travel Vouchers must include the following supporting documents, as applicable:

1. Two copies of all travel orders, including amendments;

2. One copy of any Government Transportation Request;

3. Originals of all itemized hotel, billeting and airfare receipts;

4. Originals of all rental car receipts, if authorized;

5. One copy of a DD Form 1351-2 evidencing payment of advance travel payments, if any;

6. Originals of any receipts for reimbursable expenses exceeding $75.00, such as taxi receipts, registration fees, etc. and

7. Original receipts of all ATM withdrawals against the GTC.

The traveler must complete all pertinent provisions of the travel voucher, and submit it to the servicing finance office

within five days of the trip conclusion. When in doubt, the traveler should provide receipts or other documentation.

Intentionally filing a false claim or making false statements in a travel voucher may constitute crimes punishable under

the UCMJ, the state Code of Military Justice, or the United States Code, depending on the member's status. Innocent

mistakes or simple negligence only result in denial of payment. Intentional fraudulent acts may result in prosecution.

Travel voucher fraud is often easily detected through an audit process, and is vigorously prosecuted. Many active duty,

Reserve, and Air National Guard members lost careers and ended up in prison as the result of travel voucher fraud.

**MEDICAL EXPENSES**

A member who becomes ill on official travel must seek treatment from the nearest active duty medical facility. If none is

available, costs for treatment by a civilian treatment provider should be reimbursable upon proper documentation.

_**KWIK-NOTE: Ensure members are aware that they must document their travel expenses. Contact the servicing finance office**_

_**with any questions concerning travel payments or entitlements.**_

**RELATED TOPICS:**

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**SECTION**

Fraud, Waste and Abuse

16-7

Car Rentals by National Guard Members

27-2

Official Travel

27-6

TDY and Travel

27-9

Travel Advances

27-10

Travel Vouchers

27-12

Government Travel Card

27-15

_**Air National Guard Commander's Legal Deskbook**_

971

_**Chapter 27, Travel**_

_**Section 27-12 Travel Vouchers**_

_**Page 1**_

**Travel Vouchers**

**Updated by Captain Tim Pomeroy, June 2007**

**AUTHORITY** : Joint Federal Travel Regulations (JFTR); AFI 65-103, _Temporary Duty Orders_ (5 Aug 2005). 

## INTRODUCTION

Perhaps no other document used on a continuing basis is as fraught with potential problems for the commander as the

travel voucher. The rule is that a military member should submit for reimbursement only those expenses to which the

member is entitled. Determining exactly what the member is entitled to is, however, a subject of some misunderstand-

ing. Naturally, the exercise of this rule has led, on one extreme, to members not receiving the entitlements to which they

are due and, to the other extreme, members being disciplined, and even involuntarily separated for claiming money to

which they were not entitled. This latter occurrence sometimes happens innocently, and sometimes fraudulently.

The purpose of this topic is to highlight the problems associated with travel vouchers, and recommend ways you can

avoid them.

**LACK OF UNDERSTANDING**

The root of the problem with travel vouchers is that many members do not know what they are entitled to claim, and

even if they do know, they do not know how to properly complete the travel voucher. Some members of your unit travel

frequently, some periodically, and some rarely, if at all. Frequency of travel depends largely upon the nature of a mem-

ber's duties and the training required to do them.

First, commanders must recognize this travel voucher "education gap." Many units have successfully reduced this gap by

having their specialists in military pay prepare forms or booklets with instructions on what the various terms on the

travel voucher mean, and how to complete it. These materials either are handed out and explained at classes for all unit

members or are written in a style that is so easy to follow, that they are given to all squadron and flight first sergeants for passing on to their own personnel as needed. Whichever method you choose, having your travel voucher "guru" (every

unit should have at least one) prepare written "how to" materials for distribution is strongly recommended.

Surprising as it may seem, some ANG members are not even aware of what a travel voucher is let alone know how to

complete one. Even those members that have some experience with travel vouchers are confused by certain terms on the

form, such as: "per diem," "cost of lodging," "deductible or nondeductible government or non-government meals," "mile-

age reimbursement," and "reimbursable expenses with receipts." Preparing and distributing the "how to" materials

should eliminate much, if not all of the confusion. Even with these materials, some people will still need help in complet-

ing the vouchers so that they are properly and fully reimbursed.

Encourage your first sergeants to provide assistance to these members. Since the JFTR changes often, first sergeants

should be encouraged to seek assistance on behalf of their personnel from your unit's travel voucher specialist(s) when

questions arise. Many commanders have encouraged their comptroller to have the unit travel voucher specialist(s) re-

view all travel vouchers before they leave the base. A form of quality control, this review process better ensures that innocent members claim all expenses, but only those to which they are entitled. It also serves to detect fraudulent claims.

**FRAUDULENT CLAIMS**

Most every commander has known, heard or read about many of the "horror stories" involving travel vouchers. The sad

part is that travel voucher fraud too frequently involves members with otherwise brilliant careers who, for as little as

$25.00, submit a fraudulent travel voucher.

_**Air National Guard Commander's Legal Deskbook**_

972

_**Chapter 27, Travel**_

_**Section 27-12 Travel Vouchers**_

_**Page 2**_

Assume a member is on orders to travel for authorized military business. Here are some actual cases which, while hard

to believe, involve some former commissioned officers and their travel vouchers:

1. The member was driven to the airport in a POV, but instead of properly claiming mileage which would have been

$22.00 round trip, submitted a receipt from a limousine service for round trip reimbursement of $70.00. The member

might have gotten away with it, but unknown to him was that limousine service (which had only one car) had driven an-

other unit member to a different airport on the same date and time. Not only was the member discharged in disgrace (he

was also awaiting Senate confirmation for federal recognition to 0-6), but was convicted of a felony in federal court. State law where the member lived provided for revocation of licenses required to practice a profession upon a felony conviction. This traditional Guard member, who was a school principal, was mandatorily fired from his civilian position two

months later, two months short of vesting his civilian pension. Two of his children still went to school in that district.

2. Another member rented a car at the airport of the TDY station. Since there was no authority on the orders to be reim-

bursed for it, he paid for the rental car himself, which was perfectly permissible. He used the rental car during the TDY,

having picked it up at the airport, driven it to the TDY station, and then back to the airport before boarding the plane

home. People in his unit knew before, during and after his TDY that he rented a car during the TDY. The problem was,

he submitted for reimbursement two commercial cab receipts ($15.00 each) for travel from the airport to the TDY sta-

tion and back. He might have gone undetected except another unit member who did not think too highly of this officer

knew about the rental car, saw the signed travel voucher and turned him in. The officer chose to resign instead of being

discharged. At the time he resigned, he had 19 good years of total service.

3. Our final case involves a member who, with authority, took her POV on TDY. Upon release from duty at 1200 hours

on the last day of the tour, she did not go directly home, which would have taken her three (3) hours driving time. She

stopped twice to socially visit friends at places which were clear deviations from her direct route home (she had properly

listed on the travel voucher the direct route traveled to the TDY station). She arrived home at 1100 hours the day after

the tour of duty ended. Her orders allowed one day for travel after the day the tour ended. While she did not claim the

extra mileage or tolls incurred by the stops on the way home, she submitted her travel voucher claiming the extra day's

pay and per diem. The travel voucher specialist at her base caught the "error." Only because she had not claimed the ex-

tra mileage and tolls, did her commander permit her to re-accomplish the travel voucher without the claim for the extra

day's pay and per diem, and not process her for discharge. However, because her actions were deemed by her com-

mander to constitute a "serious error in judgment," her next OPR reflected her actions. That OPR was the last one pre-

pared before she met her second Board for promotion to 0-5, having once previously been passed over. Needless to say,

after the second Board considered her, she retired.

The moral of all this: there is no such thing as the perfect crime. Even if members "get away with it" once, they will only

succumb to the temptation of doing it again. Sooner or later, in one way or another, they will be caught. And once the

member has submitted a signed travel voucher, there is no escape. If falsely completed, that document is the member's

worst enemy. You never know who will turn you in or what will trip you up. JUST DON'T DO IT -- it's not worth it.

**EDUCATION**

In recognition of the serious potential adverse consequences to those who submit false travel vouchers, commanders

should periodically remind their personnel of these adverse consequences, which include:

1. Quality force management actions;

2. Administrative separation;

3. Courts-martial;

4. Civilian criminal prosecution;

5. Loss of civilian employment, whether or not a license is required and is revoked, and its consequent effects on pension

benefits; and

6. Personal disgrace (which, emotionally, may be the worst of all).

_**Air National Guard Commander's Legal Deskbook**_

973

_**Chapter 27, Travel**_

_**Section 27-12 Travel Vouchers**_

_**Page 3**_

While your responsibility may not include finding out why people submit false travel vouchers, it can and should include

educating and assisting all your unit members to submit proper and accurate travel vouchers. This topic has also been

written to be adaptable to a briefing format for this purpose.

_**KWIK-NOTE: Monitor all travel vouchers submitted, both to protect innocent members from themselves, and to protect the**_

_**integrity of your unit.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

OSI and SF Reports

8-14

Fraud, Waste and Abuse

16-7

Investigations and Inquiries

16-11

Preventive Law Program

17-15

Car Rentals by National Guard Members

27-2

Official Travel

27-6

TDY and Travel

27-9

Travel Advances

27-10

Travel Expenses

27-11

Government Travel Card

27-15

_**Air National Guard Commander's Legal Deskbook**_

974

_**Chapter 27, Travel**_

_**Section 27-13 Visits to Other Bases**_

_**Page 1**_

**Visits to Other Bases**

**Updated by Colonel Mary A. Enges, March 2018**

**AUTHORITY** : Command policy, customs and practice.

**GUIDELINES**

Common sense and military courtesy offer the following guidelines for visits to other bases or facilities:

Make a courtesy telephone call to the host commander before you travel to advise of the visit and its purpose. You would

not want to be surprised by strangers on your base. Don't assume the section or office being visited will remember to tell

its own commanders of your arrival.

If staying overnight, independently confirm your reservations to avoid any billeting issues.

Consider sharing your in-house after-visit report with the host commander. It may help improve the host's operation and

might even prevent a write-up by a future inspection team.

**ORDERS**

The orders issued should clearly state the purpose of the visit; for example, "On-site inspection of the maintenance facil-

ity at Pease ANGB, NH."

**AFTER-VISIT REPORT**

Whenever an ANG member travels on official duty to another base to view a facility similar to that of the home base, and

that viewing is either the entire or a substantial reason for the travel, the person authorizing the travel should require a written after-visit report.

The report need not be more than one page in length. It should summarize what the visitor saw at the base and the im-

pressions of what was learned from the facility's operation. The written report also serves as a source of information for

other interested members of the unit, and could prove useful to the visitor's commander or successor. In this way, the

proverbial "wheel" need not be reinvented with each change in personnel or command.

_**KWIK-NOTE: Careful planning and written after-visit reports are essential for visits to other military facilities.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Orders - Problem Areas

1-25

Official Travel

27-6

TDY and Travel

27-9

_**Air National Guard Commander's Legal Deskbook**_

975

_**Chapter 27, Travel**_

_**Section 27-14 Visits to United States Congress**_

_**Page 1**_

**Visits to United States Congress**

**Updated by Colonel Mary A. Enges, March 2018**

**AUTHORITY** : 18 U.S.C. 1913

**RESTRICTIONS AND REQUIREMENTS**

All members of the National Guard should be aware in their contacts with the United States Congress to avoid impermis-

sible activity. Impermissible activity includes misuse of government assets and lobbying with appropriated funds in viola-

tion of 18 U.S.C. 1913.

Members should avoid even the appearance of impermissible activity. The responsibility rests with each of us to ensure

public confidence in the United States Government.

Under 18 U.S.C. 1913, federal funds appropriated for the training and administration of the National Guard may not be

used to facilitate a lobbying effort. For example, members may not use federal aircraft to fly to Washington, D.C. to influ-

ence state interests in Congress. Likewise, when a member travels to the nation's capital in a duty status, the purpose

must be to perform official military duties.

If members of the National Guard are in Washington, D.C. for a valid official purpose, they may also meet with their

elected representatives or staff. However, this additional meeting must not be the primary purpose of the trip and the

meeting may not be a subterfuge for lobbying. The meeting must not consume the major portion of the duty day nor in-

terfere with official duties. Whenever possible, civilian attire should be worn by members visiting their representatives.

To avoid the appearance of impermissible lobbying or the misuse of government property, and to avoid any misunder-

standing, military members may advise the National Guard Bureau Office of Legislative Liaison (NGB-LL) about meet-

ings with Congressional offices in advance. In this manner, those members will enjoy full transparency of their desire to

meet with their representatives when conducting official business in the Washington area, or when traveling in conjunc-

tion with federally funded travel, regardless of their duty status.

Members in federally-funded duty status should not appear in Congressional hearings regarding matters of interest to

the National Guard unless subpoenaed by proper authority or requested to do so by the National Guard Bureau. Any

such appearance should be coordinated through NGB-LL and members may arrange to meet with personnel at NGB-LL

to discuss any areas of interest.

The National Guard Bureau does not intend to interfere with the rights of individuals to communicate with their elected

representatives. National Guard members may communicate with Congress individually or collectively through private

associations, the same as any other citizen, as long as no federal funds or federal resources are involved in the activity.

_**KWIK-NOTE: Use of federal funds or other federal resources by military members to lobby or influence members of Congress**_

_**is PROHIBITED.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Ethics

7-3

Official Travel

27-6

_**Air National Guard Commander's Legal Deskbook**_

976

_**Chapter 27, Travel**_

_**Section 27-15 Government Travel Card**_

_**Page 1**_

**Government Travel Card**

**Updated by Captain Tim Pomeroy, June 2007**

**AUTHORITY** : Public Law 105-264, _Travel and Transportation Reform Act of 1998_ ; DoD 7000.14-R, _Financial Management_ _Regulation_ , Volume 9, Chapter 3, & Annexes 1-4 (www.dtic.mil/whs/directives,  March 2005); SAF Policy Letter, _Mandatory Travel Card Policy_ , 17 April 2000, and attachments; TJAG Special Subject Letter 2002- 01: _Providing Legal Assistance in_ _Bank of America Travel Card Debt Cases_ ; TJAG Policy Letter Number 18, 4 February 1998, paragraph 2c.

**BACKGROUND**

In 1998, the "Travel and Transportation Reform Act of 1998" (TTRA), went into effect mandating the use of a govern-

ment travel card (GTC) for all costs incident to official government travel. Since that time, use of the GTC has become

commonplace. For most members, use of the GTC poses few problems; for commanders, however, GTC misuse by mem-

bers of their units has become an all too common annoyance. GTC misuse by an individual member can run the spec-

trum from a simple lack of financial knowledge and/or discipline to blatant fraudulent intent.

**MANDATORY USE**

According to SAF Policy Letter, _Mandatory Travel Card Policy_ , 17 April 2000, and attachments, use of the card for travel-related expenses is required for all members on active duty. Mandatory use of the card is also required for Guard mem-

bers when in a Title 10 status.

Travelers must use the card for transportation (i.e., airline tickets), lodging and rental cars. All airline tickets must be purchased through the Contracted Travel Office (CTO) with a centralized unit GTC or with a member's individual card.

Other items may be placed on the card, such as parking, dry cleaning, meals and incidentals, local transportation or taxi

fares, telephone calls (local and long distance), tips, and any expense at a vendor that does not accept the travel card.

A commonly asked question is whether cash, obtained through use of the travel card or not may be used in lieu of the

card itself for rental cars, hotel bills, and airline tickets. The answer is no. The law requires use of the card itself, not cash. The travel card can be used to obtain cash from ATMs to satisfy any cash requirement as stated above. However,

there are charging limits on both "expenses" and cash withdrawals - any questions can be answered by your APC. Also

remember that obtaining cash is expensive because the bank charges fees for each cash withdrawal based upon the

amount withdrawn. In addition, the card offers safety and allows members the option of viewing their TDY expenses on-

line while completing their voucher.

**ELECTRONIC ACCOUNT GOVERNMENT LEDGER SYSTEM (EAGLS)**

Agency Program Coordinators (APC) are responsible for program execution and management and are to monitor delin-

quencies. Each base and unit should have an APC and an alternate appointed by the commander and registered with the

bank.

EAGLS provides each unit APC the ability to view cardholder's accounts, update credit and cash withdrawal limits, and

maintain addresses and generic information pertinent to the cardholder online.

APCs can pull various reports using EAGLS such as delinquency reports, cardholder listings and individual cardholder

statements on a monthly basis. The Air Force reporting cycle ends on the 3rd of each month - reports using EAGLS can

be run after that point. This allows the APC, cardholders and commanders immediate access to relevant information,

helping to resolve existing problems and alleviating potential problems before they occur.

The review of monthly reports helps commanders ensure abuse is stopped before it "gets out of hand" ( _e.g.,_ the airman

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 27, Travel**_

_**Section 27-15 Government Travel Card**_

_**Page 2**_

who uses his card to rent a car when such is not authorized on his orders, or the member who is using her card to pay

furniture payments at a local furniture store). Abuse can be stopped immediately and the military member encouraged to

immediately pay the full amount of the debt before it is beyond their financial capability to do so. Members can also go

to their APC and receive an ID and password that will allow them to view their account on-line using EAGLS. This is es-

pecially helpful for long TDYs—because the member is expected to pay their card by filing interim travel vouchers.

It is important to note the bank cannot disclose information to employers about the credit history of the military mem-

ber, only about the status of the card charges. However, it can give a recommendation to the APC about whether the

member should be allowed a "restricted card" (one that has a limited credit amount and is turned on and off for travel),

or a standard card. If a person refuses a credit check, which is their right, they will be issued a restricted card. An APC

can override the bank's recommendation and have a standard card issued. APCs can raise or lower limits on a card by call-

ing the bank. APCs can also turn on/off cards using a touch-tone phone without talking to anyone at the bank.

**SPLIT DISBURSEMENTS**

Split disbursements are a mandatory feature of travel voucher reimbursements related to use of the GTC. This allows the

traveler's payment to be automatically split between what is owed the bank with any remaining funds sent to the trav-

eler's checking account, thus saving the traveler the time and trouble of paying the bank.

The bank can also impose a "Default Split Disbursement." It is presumed that this will mean that the finance office will

be allowed to pay all charges incurred for a particular travel voucher if the member leaves "Block One" on the travel

voucher blank. In other words, if the member fills in an amount or puts "zero," those directions will be followed. If the

amount is blank, the finance office can and will pay any debts incurred on the member's GTC. Policy guidance indicates

that only that portion of the travel settlement related to transportation, lodging and rental cars will be forwarded to the

travel card contractor and the remainder of the entitlement will be forwarded to the member. Finance offices may want

to take an active role in this process, because some members may pay the card debt, thereafter expecting reimbursement

on their travel pay. Of course, members can seek reimbursement from the bank for any amounts overpaid on the card.

**PROACTIVE WING POLICY**

Many units have proactive comptroller review of the government travel card program. Other units perceive these meas-

ures as best left to the squadron level APC. The following are proactive suggestions-you can probably think of others!

Create a wing instruction that carefully details prohibited practices and the progressive disciplinary steps that will be

taken if a violation of the policy. Discipline for misuse can differ from delinquency. Consider disciplinary measures for

non-mandatory use of card; remember, however, that mandatory use "technically" only applies to ANG members in a Ti-

tle 10 status--however, it is increasingly impossible to obtain travel funds without using the card. Guidelines should be

established within a wing policy how a member can be administratively disciplined for failure to use the GTC for manda-

tory expenses.

Create an acknowledgment form for each member to sign that indicates that they have read the wing policy and under-

stand that the card is for official use only, not to be used for local purchases, and acknowledging that they understand the progressive disciplinary steps that will be taken in the event of a violation of the wing instruction.

Control access to the card by requiring an application on all individuals, even those transferring into the unit. Make sure

that people leaving and transferring into the unit have their card hierarchy transferred with them to the correct hierarchy.

This also ensures that they are briefed on the wing policy regarding the card and that they have signed the wing acknow-

ledgement statement. It also ensures that the member's supervisor has acknowledged that the member can have a card.

Cards can be cancelled in two ways. If a member abuses her card or becomes delinquent, the unit can request the card's

deactivation. Also, the bank will deactivate the card if the card becomes 126 days delinquent.

_**Air National Guard Commander's Legal Deskbook**_

978

_**Chapter 27, Travel**_

_**Section 27-15 Government Travel Card**_

_**Page 3**_

Cards are closed when a member separates from the wing. If the member is transferring, they are allowed to take the

card to their new unit but it is deactivated if not transferred within 3 months (a lesser period of time, such as one month

is also encouraged) of their departure. The cards of separating members are closed immediately.

**WHAT HAPPENS IF A PERSON MISUSES THE CARD OR FAILS TO PAY?**

To prevent misuse, a member may not use the card at certain categories of merchants. Some of the categories include

golf courses, liquor stores, funeral, medical providers, and 1-900 numbers. Any attempt to use the card at one of the

blocked categories of merchants, will result in a failure of the card to be accepted. If a mission requires this charge, the merchant can contact VISA or a member may use the number on the back of their card to authorize an override.

Just because a card was accepted by a merchant does not mean that the use is permissible--it must be for official govern-

ment travel purposes.

Failure to pay the travel card bill will affect a member's ability to use it. Once an account is 60 days delinquent, it will be suspended. When it is 120 days delinquent, it will be cancelled. The bank may charge a late fee for accounts 75 calendar

days past due. Fees may be charged monthly until the account is paid up-to-date. Delinquent payments more than 126

days past the original due date may be reported to credit bureaus and can damage a member's credit rating. Members

should also be warned that the bank may continue to attempt to recover amounts due even if the member is discharged

or separated from the military. It is important that members review their monthly statements carefully for accuracy. Mem-

bers are not expected to pay invalid charges but must dispute them with the bank.

The Defense Finance and Accounting Service (DFAS) issued procedures to effect salary offsets from Air Force members

who are more than 120 days delinquent on their DoD Travel Card accounts. The bank is not required to seek a court-

ordered garnishment of wages to initiate these offsets. The involuntary allotment process has been statutorily replaced

by a distinct salary offset process with its own set of rules and procedures. Nevertheless, once the commander and DFAS

are contacted regarding a GTC account that warrants initiation of the salary offset process, legal office involvement

should stop, except for providing guidance or official handouts as information about the offset process. Due process pro-

cedures will be in place and the law as presently written states that the pay offset amount cannot exceed 15% of the dis-

posable pay owed the employee for that pay period, unless written consent of the employee authorizes more.

Units should be proactive in educating members about the rules concerning their government credit cards. Units are also

encouraged to have local wing policies concerning the card's use and misuse. As with the old card, UCMJ or state code

and administrative disciplinary actions may be taken if the card is used for prohibited purposes or a member is delin-

quent in paying their account. Any discipline should be "measured" and "graduated" and progressive according to Air

Force policy. As noted above, ensure that discipline be based on "dereliction of duty," or a violation of wing or MAJCOM

directives or instructions until and if a new AFI is placed into effect. Without a wing or other directive that establishes

disciplinary procedures for non-mandatory use of the card, no other mechanism supports discipline.

If you have any questions or need additional information about the government travel card, you can contact your unit

Travel Card APC, your financial Service Office or bank customer service, whose telephone number is found on the back

of the card.

_**KWIK-NOTE: Be proactive – create wing policies and notify your members of their contents, educate your members on the**_

_**use of the government travel card, and monitor your people to ensure GTC abuse does not occur.**_

**RELATED TOPICS:**

****

****

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****

****

****

****

****

****

****

****

**SECTION**

Official Travel

27-6

Travel Advances

27-10

Travel Expenses

27-11

Travel Vouchers

27-12

_**Air National Guard Commander's Legal Deskbook**_

979

**Chapter 28, Domestic Operations**

**Table of Contents**

**Section**

28 - 1 Table of Contents

28 - 2 Activation, Chain of Command and Discipline in the Force

28 - 3 _Posse Comitatus_ Act and Permissible Law Enforcement Activities

28 - 4 Wildland Fire Fighting

28 - 5 Fiscal Law, Title 10 Activation, and Reimbursement

28 - 6 Arming and Rules for the Use of Force

28 - 7 Intelligence Oversight in Federal Status

28 - 8 Medical Issues

28 - 9 Liability and Environmental Issues

28 - 10 Pandemic Influenza Response

_**Air National Guard Commander's Legal Deskbook**_

980

_**Chapter 28, Domestic Operations**_

_**Section 28-2 Activation, Chain of Command, and Discipline in the Force**_

_**Page 1**_

**Activation, Chain of Command, and Discipline in the Force**

**Updated by Lieutenant Colonel Sky W. Smith and Captain Brooke Brooks, March 2017**

**AUTHORITY** : 10 U.S.C. § 10103, 10111-3, 10213, 10215, 12301-4, 12406; 10 U.S.C. 331-334 (Insurrection Act); 18

U.S.C. § 1385; Title 32, United States Code; 42 U.S.C. 5121 (Stafford Act); DoD Directive 1235.10, _Activation, Mobiliza-_

_tion, and Demobilization of the Ready Reserve_ (26 November 2008, Incorporating Change 1, September 21, 2011), DoD

1235.12, Accessing the Reserve Components (RC) (February 4, 2010, Incorporating Change 1, April 4, 2012); AFPD 10-

3, _Air Reserve Component Forces_ (17 May 2006); applicable provisions of state law. 

## INTRODUCTION

Command authorities may activate National Guard forces for domestic operations in state active duty, Title 32 (state

commanded, federally funded), or Title 10 (federally commanded and funded) status. This status determines both the

type of missions the Guard may perform, and who pays for those missions. Activation in a state status puts fewer limita-

tions on the mission the Guard may perform, but often creates funding issues for states with stretched budgets. Federal

law provides a variety of mechanisms to fund specific ANG activities on a direct payment or reimbursable basis. Activa-

tion in a federal status provides greater funding resources, but places additional (or greater) legal limitations on the permissible missions. This section discusses the capabilities and limitations of each status, how status affects the chain of

command, and the authority to discipline members in different statuses.

**STATE ACTIVE DUTY STATUS**

The state status activation process starts when the governor of a state identifies a public need he or she cannot meet

with his or her existing civilian resources, or receives a request for assistance from another governor or a representative

of the federal government. While the reasons for activation vary greatly, the process has certain set points, including the

identification of the need, the request for forces, the identification of the forces appropriate to meet the public need, the activation of those forces, the employment of the forces, and the deactivation of the forces. When the activation is in

state status, the governor of the state retains administrative control, although he or she may delegate operational or tactical control of the forces to another state. Because of this, the governor and the state chain of command retain command

of the activated forces, despite their deployment to another state or their work alongside federal (full time active duty or activated Reservists) or federalized (National Guard on Title 10 orders) forces. Each state's governor, acting as

commander-in-chief of the state's militia, may activate National Guard troops. That activation remains under the limita-

tions of the laws of the state. Usually, state law permits the governor to activate the Guard as a state militia to respond

to a need for governmental services that exceeds local and state civilian capabilities. The governor may activate the

Guard in state active duty status subject only to state law limitations, or Title 32 status, with limitations imposed by the federal government, which provides the funding for Title 32 resources.

**TITLE 32 (STATE COMMAND/FEDERAL FUNDS) STATUS**

The federal government provides Title 32 funds to states to permit the training and operation of National Guard forces.

Title 32 funds are the money the federal government pays the states to ensure Guardsmen are trained and equipped to

perform their federal mission and maintain a military force that meets federal standards. Guardsmen serving under Title

32 remain under the command of the governor and Adjutant General of the State, despite the federal funding. Generally,

state active duty is state-funded without inherent federal restrictions. However, states are eligible to receive reimburse-

ment from the federal government for placing troops on state active duty, if the President declares an event to be a major

disaster or emergency. For instance, in the aftermath of Hurricane Katrina, several states sent Guard members to affected

states in a state active duty status. The federal government later made federal funds available to reimburse the states for

this out-of-pocket cost. Most states took these funds to pay for their Guard members' salaries and operational costs. The

Federal Emergency Management Agency (FEMA) provided some of the funding as authorized for reimbursement under

the Stafford Act, while the Department of Defense (DoD) provided additional funding under Title 32. However, some

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_**Chapter 28, Domestic Operations**_

_**Section 28-2 Activation, Chain of Command, and Discipline in the Force**_

_**Page 2**_

states declined to place their troops on Title 32 status, which was required to accept the Title 32 funding, because the

benefits to the Guardsmen were better on state active duty. Also, accepting federal funds limits the scope of missions

Guardsmen may perform, which may result in no reimbursement to the state from the federal government. As a practical

matter, commanders should spend these funds only for the operations and support missions specified at the time of acti-

vation or as later authorized by the funding authority.

In both state active duty and Title 32 status, the governor retains command of the National Guard. The governor may de-

tail troops outside the state and subordinate them to officers from another state for operational purposes (OPCON). The

governor usually retains administrative control (ADCON) of his or her state's National Guard forces. As a practical mat-

ter, the governor may also coordinate training and support with non-state organizations, although he or she typically re-

tains disciplinary authority. For example, the governor may send pararescue troops and equipment to another state to

conduct search and rescue missions under the tactical control (TACON) of another state's National Guard chain of com-

mand. However, he or she would probably require that the members' home station chain of command reserve the right

to impose any discipline necessary.

The mechanism used to "lend" one state's Guardsmen to another state is usually an agreement under the Emergency

Management Assistance Compact (EMAC). States execute bilateral EMAC agreements with a variety of common and spe-

cific articles. However, the EMAC template does not contain a provision to loan forces to perform law enforcement du-

ties, despite the one primary advantage of using non-federalized Guardsmen to respond to a natural disaster is their abil-

ity to perform law enforcement missions without implicating the _Posse Comitatus_ Act. When the mission contemplates

using loaned forces for law enforcement purposes, the commander should have a JAG review the law enforcement provi-

sion, if it exists, or raise the issue through the chain of command to ensure the speedy execution of such a provision.

When the need for Title 32 forces expires or the governor deactivates the troops for other reasons, he or she may do so

without reference to federal authorities. If the need has not ended, the President may federalize the troops under Title 10

to keep them on the scene, accepting the restrictions that federal status imposes. As a practical matter, however, the

state and federal governments seek to coordinate early in the process to ensure continued funding, manpower and avail-

ability of troops suitable to complete the mission.

**TITLE 10 (FEDERAL) STATUS**

Traditionally, the federal government has used National Guard troops in Title 10 status in three general areas: augmenta-

tion of active duty forces for OCONUS military operations, defense support to civil authorities under the Stafford Act 42

U.S.C. 5121, and enforcement of federal law under the Insurrection Act 10 U.S.C. 331-334. Activation of National

Guard forces to augment active duty forces for OCONUS military operations has a long history in the United States. Un-

der 10 U.S.C. 12301-12304, the President, with certain limitations depending on the length and nature of the call up,

may activate National Guard forces from 15 days to the duration of a war or national emergency plus six months. The

forces may be required to train or engage in military operations. The consent of the governor of the state is not required

for these activations.

When an emergency occurs that exceeds the ability of the state and local authorities to handle, the governor of the state

will often request that the President declare an emergency or major disaster under the Stafford Act. If the President

agrees, he may use the instrumentalities of the federal government to deal with the disaster, including the military. The

DoD acts in a supporting role in responding to emergencies. FEMA, the lead federal agency responding to the emer-

gency, makes a request to the DoD for forces to support its actions. The DoD identifies the forces available to provide

support and sends them to respond. Often, National Guard forces are most readily available.

When the President calls the National Guard into federal service under Title 10, he or she assumes responsibility for the

support and discipline of those forces. However, ANG members called to federal service do not become part of the Regu-

lar Air Force, but rather come under the administrative control of an organization called the Air National Guard of the

United States, more commonly known as ANGUS. Typically, federal authorities assign activated ANGUS troops to the

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_**Chapter 28, Domestic Operations**_

_**Section 28-2 Activation, Chain of Command, and Discipline in the Force**_

_**Page 3**_

operational control of a commander, but they remain under the administrative control of ANGUS and its units, the Air

National Guard Readiness Center and the 201st Mission Support Squadron. Despite lacking administrative control of fed-

erally activated members, the home units typically provide certain support functions such as finance, family support, and

a certain degree of personnel support.

While in Title 10 status, ANGUS members operate under the same rules and restrictions as active duty Air Force mem-

bers. For example, they may not engage in law enforcement activities that violate the _Posse Comitatus_ Act and are subject to the Uniform Code of Military Justice rather than the state disciplinary code. Title 32 officers usually may not command Title 10 troops and vice versa. The state ANG commander does not retain command of forces in Title 10 status (un-

less also activated in Title 10 status). Coordinate between the state ANG commander and Title 10 commander on issues

that would impact both commanders. Similarly, AFI 51-202, _Nonjudical Punishment (NJP)_ , requires coordination with the parent organization commander before a deployed commander may impose NJP on an activated ANGUS member.

**DISCIPLINE IN THE FORCE**

In the complex mix of civilian, military, federal, state, volunteer and career personnel responding to a major emergency,

maintaining discipline and mission focus can present major challenges. Often, people working side-by-side in the same

workplace or on the same missions will fall under different chains of command or responsibility. We recommend early

and continuous coordination with co-actors in the mission to facilitate effective discipline.

The most common problem in discipline during an emergency response is lack of direct supervision. A commander may

receive a disciplinary complaint concerning one of his troops assigned to support another command, or may have a com-

plaint about a military member or civilian sent to support him. Clear communication and deliberate action ensure ac-

countability and effective discipline. A commander receiving a complaint about one of his troops should reserve judg-

ment until he receives all the facts and should give regard to the observations of the people exercising direct supervision

of the troop. A commander with a disciplinary problem with a troop or civilian under his direct supervision, but not un-

der his command for disciplinary purposes, should communicate the problem to the party responsible for discipline.

That party should give deference to the observations of the on-scene supervisor and correlate the incident with her

knowledge about the member's past performance before making a disciplinary decision.

Consistent discipline may require a degree of conformity with unfamiliar institutional cultures. For instance, federalized

troops responding to a disaster are usually banned from consuming alcohol. Civilians responding to the same disaster

will probably not have the same restriction. While a commander cannot prevent civilians from consuming alcohol, he

may explain the situation and restrict alcohol from areas under military control.

**CONCLUSION**

Activation of a unit or airman under state or federal authority has profound implications for the chain of command, fund-

ing, support, and discipline. The type of activation also determines the type of missions a unit may conduct and whether

the unit is eligible for reimbursement. Know the proposed activation type and discuss its consequences with your JAG.

_**KWIK-NOTE: The Air National Guard has tremendous flexibility because of the ability to act in either state or federal**_

_**status. However, each status has limitations that may impact a commander's decisions.**_

**RELATED TOPICS:**

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****

****

****

****

****

****

****

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**SECTION**

Active Duty - Air National Guard Members

11-02

Enforceability of Orders by AF Officers

11-05

Status of National Guard Members

11-07

Mobilization of Air National Guard

20-02

_Posse Comitatus_ and Law Enforcement Operations

28-3

_**Air National Guard Commander's Legal Deskbook**_

983

_**Chapter 28, Domestic Operations**_

_**Section 28-3 Posse Comitatus**_

_**Page 1**_

_**Posse Comitatus**_

**Updated by Lieutenant Colonel Sky W. Smith and Captain Brooke Brooks, March 2017**

**AUTHORITY** : 18 U.S.C. § 1385; 10 U.S.C. §§ 331-335; 10 U.S.C. §§ 371-382; 32 U.S.C § 112; DoDD 3025.12, _Military_

_Assistance for Civil Disturbances_ (4 February 1994); DoDD 3025.18, _Defense Support to Civil Authorities_ (DSCA) ( _29 December_ _2010,_ I _ncorporating Change 1 21 Sept 2012_ ; DoDD 5525.5, _DoD Cooperation with Civilian Law Enforcement Officials_ (15 January 1986); DoD 4515.13-R, _Air Transportation Eligibility_ (January 22, 2016, amended 31 March, 2016); DoDD5200.31E DoD

Military Working Dog (MWD) Program (10 August,2011); AFI 10-801, _Defense Support of Civil Authorities_ (23 December

2015)); AFPD 10-8, _Defense Support of Civil Authorities_ (15 February 2012); AFMAN 31-201V4, _High-Risk Response_ (17

November 2011); NGR 500-1/ANGI 10-8101, _National Guard Domestic Operations: Emergency Employment of Army and Other_

_Resources_ (13 June 2008); NGR 500-2/ANGI 10-801, _National Guard Counterdrug Support_ (29 August 2008); CNGB Notice 1401, _Guidance for Use of National Guard Members in Full-Time Duty Programs Title 32 (T32) Active Guard Reserve_ , _T32 Full-Time_ _National Guard Duty Operational Support (FTNGDOS) and Full-Time National Guard Duty Counter Drug (FTNGDCD)_ Military _Technicians for CONUS Contingency Situations_ (24 February 2012); and applicable provisions of state law. 

## INTRODUCTION

This topic deals with The _Posse Comitatus_ Act ("PCA") and exceptions to PCA. The Act generally prohibits using the federal military forces in a law enforcement role, except in certain specific cases. The PCA applies only to forces in federal

(Title 10) status, and not to the National Guard in State Active Duty or Title 32 status. However, given that most large

domestic operations occur in a total force environment, consider PCA in the planning and execution of any operation in

the United States.

Unlike most statutes governing operation of the military, PCA applies criminal penalties for violators, to include fines or

imprisonment. Furthermore, a court may order the suppression of evidence obtained, or the release of an accused ar-

rested, by forces operating in violation of PCA.

**BACKGROUND**

The term _"posse comitatus"_ is best defined with the familiar concept of the posse gathered by the frontier sheriff to track down and apprehend a criminal. The translation is "the power of the county." The legal definition of _posse comitatus_ describes a group of people, usually taken from the population of the county over the age of 15, who, under the authority of

a sheriff or police, are engaged in the search and arrest of a criminal. An important aspect of the definition is that the

_posse comitatus_ has the authority of search and arrest. For practical purposes, military forces conducting law enforcement missions operate as a posse comitatus, unless they fall under an exception.

The _Posse Comitatus_ Act is the common name of 18 U.S.C. 1385, "Use of Army and Air Force as _Posse Comitatus_." This statute provides:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of

Congress, willfully uses any part of the Army or Air Force as a _posse comitatus_ , or otherwise to execute the

laws, shall be fined not more than $10,000.00, imprisoned not more than two years, or both.

The statute was originally enacted in 1879 during the Reconstruction Era to eliminate the direct use of federal troops by

civil authorities to police state elections in ex-Confederate states where civil power had been restored. Congress believed

that the excessive use of federal troops undermined their policy of reuniting the war-torn country and guaranteeing all

races the right to vote. Over time, parties have viewed the PCA variously as an important check on the power of the fed-

eral government, an impediment to efficient governmental operations, and a firewall between the civilian and military

functions of government.

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**TO WHOM IT APPLIES**

The statute applies to the active component (Title 10) Air Force, Army, and Reserves; and to the National Guard while in

Title 10 (federal) service. While the Act does not address the participation of the Navy and Marine Corps in law enforce-

ment activities, 10 U.S.C. 375 directs SECDEF to promulgate regulations forbidding them from directly participating in

law enforcement missions. Accordingly, Department of Defense Directive ("DoDD") 5525.5 requires the Navy and Ma-

rine Corps to also abide by PCA restrictions. The statute does not apply to the Coast Guard or the National Guard while

in Title 32 or state active duty statuses, because the definition of "Army" or "Air Force" in 10 U.S.C. 3062 includes only

those in a federal status. The statute also does not apply to active duty personnel off duty and acting in a private capac-

ity. Finally, the PCA does not apply to DoD civilians unless under the direct command and control of a military officer.

While the PCA does not apply to the National Guard in state active duty or Title 32 status, National Guard troops do not

have the right to act in a law enforcement role, absent an authorization to do so by the state. Although the PCA states

what is prohibited and various case law interpretations discuss what activities are prohibited, "NOT PROHIBITED"

DOES NOT NECESSARILY MEAN "PERMISSIBLE" OR "AUTHORIZED." THIS IS A CRUCIAL DISTINCTION. Law

enforcement activities conducted by National Guard troops usually rely on an explicit authorization to act in this role.

This authorization comes from a state statute, order of the Governor, or interstate compact between governors.

**TO WHAT ACTIVITIES PCA APPLIES**

The statute and implementing guidance in DoDD 5525.5 prohibit the direct involvement of active duty forces in assist-

ing civilian law enforcement officials in enforcing civilian laws, except when authorized by the U.S. Constitution or an-

other federal statute. The statute prohibits military personnel in a federal status from:

1. **Pursuing and arresting civilians** even though they have committed crimes; and

2. **Any active or direct assistance to civilian law enforcement officials to enforce civilian law** (such as interdiction of a vehicle, vessel, aircraft, or other similar activity; a search or seizure; an arrest, apprehension, stop and frisk, or similar activity; and use of military personnel for surveillance or pursuit of individuals, or as undercover agents, informants, investigators, or interrogators). _See_ DoDD 5525.5.

Courts have applied three tests to determine whether using military personnel violates the PCA.

1. Whether the action of military personnel was **"active" or "passive."** ( _See United States v. Red Feather_ , 392 F Supp 916, at 921 (WDSD 1975)).

2. Whether military personnel's involvement in the activities of civilian law enforcement officials was

**"pervasive."** ( _See_ _Hayes v. Hawes_ , 921 F.2d 100 (7th Cir. 1990)).

3. Whether military personnel subjected citizens to **military power** that was either **regulatory, proscriptive, or compulsory.** ( _See_ _United States v. Kahn,_ 35 F.3d 426 (9th Cir. 1994)).

For further guidance see the "military purpose activities" as described in DoDD 5525.5, para E4.1.2.1.

**WHAT IS NOT PROHIBITED and/or EXCEPTIONS TO PCA**

1. PCA does not prohibit military personnel, when permitted to patrol areas outside a military base, from removing **mili-**

**tary members from situations that could involve violations of civilian law.**

2. PCA does not prohibit military personnel from actively **pursuing and arresting military members.**

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3. PCA does not prohibit military personnel, under the inherent authority of the commander, from **executing laws on a**

**military base** when the action is necessary to fulfill a military purpose, such as protecting military personnel or federal property.

4. PCA does not prohibit military personnel from **detaining civilians on military bases who violate laws** while on

base. Upon detention of a civilian, the military should immediately summon civilian authorities to take custody of the

detainee, as only civilian law enforcement agencies may arrest or apprehend a civilian violator. Advise security forces to

choose their words carefully, both orally and in written reports. Terms like "arrest" and "apprehension" should be

avoided; instead use words such as "detain." Seek your JAG for additional case-specific guidance.

5. PCA does not prohibit military personnel from engaging in **passive activities** (such as installation of traffic control measures, the passive use of observers, the loan and maintenance of military equipment, and using military installations

and facilities in the normal course of military activities) in aid of civilian law enforcement.

6. PCA does not prohibit military personnel from participating in **humanitarian acts** , such as the search for a lost child, search and rescue, and disaster relief. However, the true purpose must be humanitarian, not a subterfuge to disguise activities prohibited under the statute. For instance, civil authorities requested UAV support for law enforcement purposes

after Hurricane Katrina. While the National Guard could provide information it obtained about criminal acts while per-

forming other missions, the active control of a UAV for a law enforcement mission would have violated DODD 5525.5.

As an aside, it is important to note that only the Secretary of Defense can authorize a UAV mission in the United States.

For search and rescue missions, the SECDEF has delegated the authorization for use of UAVs to the NORTHCOM/

PACOM commanders.

7. PCA does not prohibit **off-duty conduct** , unless it is induced, required, or ordered by military officials to whom the statute applies. Thus, if otherwise permitted, an ANG member could have an off-duty job in law enforcement, but an ANGUS Security Force commander could not order federalized troops to actively assist local law enforcement officers on law

enforcement missions.

8. It does not violate the PCA for civilians to receive an **incidental benefit** from some military activities described above (Military Purpose Doctrine), if the primary purpose of the activity was to further a military interest (DoDD 5525.5).

9. PCA does not prohibit military personnel from **protecting classified military information or equipment, DoD per-**

**sonnel, DoD equipment, and official guests of the DoD,** or other acts undertaken primarily for a military or foreign

affairs purpose.

10. Using DoD personnel in **civil disturbances** is governed by DoDD 3025.12, which details special approval/

coordination requirements for that type of support. Military resources may be employed to support civilian law enforce-

ment operations in the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and the U.S. territories

and possessions. Any employment of military forces to support law enforcement operations shall maintain the primacy

of civilian authority.

11. DoDD 3025.15 governs all DoD military **assistance provided to civil authorities** within the 50 States, District of

Columbia, Puerto Rico, U.S. possessions, and territories, and provides criteria for evaluating all requests for support.

Matters to be considered include the legality and lethality of the mission, its cost, and whether the mission impacts

DoD's ability to perform its own missions.

12. The Secretary of Defense reserved the authority to approve DoD support for **civil disturbances, responses to acts**

**of terrorism, and other civil support** that will cause a planned event with the potential for confrontation with specifically identified individuals or groups, or which will cause the use of lethal force.

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13. The traditional uses of the Insurrection Act, 10 U.S.C. §§ 331-335, permit the President to use the armed forces to

enforce the law to **prevent the loss of life or wanton destruction of property or to restore governmental function-**

**ing** , in cases of civil disturbances, if the duly constituted local authorities cannot control the situation and circumstances preclude obtaining prior Presidential authorization, or when duly constituted state or local authorities are unable or decline to provide adequate protection for federal property or functions. Using federal and federalized forces under the In-

surrection Act has been traditionally limited to: "insurrection, domestic violence, unlawful combination, or conspiracy if

such insurrection, violation, combination, or conspiracy so hinders the execution of the laws of that state, and of the

United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protec-

tion named in the Constitution and secured by law, and the constituted authorities of that state are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection." The overarching policy of providing support to

civilian officials should always be remembered. Active duty military personnel (other than Security Forces or similar per-

sonnel) are not trained in law enforcement. National Guard personnel may receive some law enforcement training.

14. **Loan/Lease of Military Equipment to Civilian Law Enforcement.** Civilian law enforcement officials often request

the loan of military equipment during civil disturbance operations. In light of the DoD goal to minimize the military pres-

ence in such operations, this practice is viewed as an effective means of accomplishing that goal. However, military per-

sonnel may be provided if necessary to transport, set up, and use of the equipment ( _e.g._ , military working dogs).

15. **Exercise of Authority over Civilians.** When permitted by their operations orders, National Guardsmen in Title 32

or state active duty status have authority to detain or take into custody rioters, looters, or others committing offenses.

Generally, however, searches should be conducted by civilian law enforcement because they are more familiar with search

and warrant procedures.

16. Because **military working dogs** qualify as "equipment" and are subject to loan to civilian law enforcement agencies, DoD policy requires requests for military working dog support, if approved, to be filled with dogs and their handlers.

MWD support may only be provided under circumstances precluding confrontation between the military working dog

team (MWDT) and civilian search subjects. Accordingly, MWDTs providing civilian law enforcement support may not be

used to search or track people, to seize or retrieve evidence, to search buildings or other areas for personnel, or to pur-

sue, bite, and hold, or assist in apprehending, arresting, or detaining civilians. _See_ Department of Defense Instruction (DoDI) 5525.10.

Remember that Title 10 military personnel cannot execute or aid civilian authorities in executing civilian laws, directly or actively, except in certain very limited circumstances. PCA does not prohibit using federal property for such purposes,

but be careful because other statutes or regulations may prevent using federal property for such purposes. Consult your

JAG to ensure your support is within the bounds of the law and does not violate PCA.

NGR 500-1/ANGI 10-8101 applies when National Guard personnel are not in a Title 10 status. It provides detailed expla-

nations for using National Guard personnel and property to support civil authorities. Note: when federal property is used

by the Guard in responding to emergencies within a state, reimbursement for the costs incurred is required. Also note:

NGR 500-1/ANGI 10-8101 is being subsumed by a new Chief of the National Guard Bureau Instruction and accompany-

ing Manual which is currently in draft form but may be in effect by the time this document is published.

New programs and legislation are in development for using the National Guard to perform the mission of "homeland de-

fense." Homeland defense is an emerging topic that will combine many of the issues faced by the National Guard when

responding to state emergencies with issues faced by the Guard in the counterdrug program. All guidance in this area,

whether statutory or regulatory, should be strictly construed.

**LAW ENFORCEMENT DUTIES IN STATE STATUS**

This subsection addresses general law enforcement duties by Air National Guard troops in state active duty status, and

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the specific provisions of the federally funded counterdrug program. Specific law enforcement concerns, such as the

Rules for the Use of Force, are addressed in separate sections. In general, Air National Guard troops in state status have

few federal restrictions on their activities. The most common issues are those of state law, using forces outside of their

home state, and restrictions arising from the type of funding provided for the operation. The following are general law

enforcement duties performed in state active duty status:

1. **Authorization**. State laws vary widely on their treatment of troops in the state militia acting to support law enforcement missions. Guardsmen may not have the same privileges and duties as peace officers in the state. Federal law pro-

vides no particular authorization for Guardsmen to act in this role and does not provide them with any additional privi-

leges.

Always ensure Airmen are trained in their issue weapon and in the Rules for Use of Force for that jurisdiction prior to

engaging in law enforcement missions.

Absent a specific state law granting law enforcement powers to National Guardsmen, the ANG generally will only have

the limited powers granted under the applicable civil arrest statute, deputization rules, or the terms of the activation by

the governor. The authorization will determine the nature of the mission and what Rules for the Use of Force will apply.

Commanders have the responsibility to provide appropriate guidance on the use of force to their troops and bear respon-

sibility for the actions of their troops acting under that guidance. Always ensure that troops issued weapons and ammuni-

tion know when they may use them are given a copy of the arming order.

2. **Out of State Missions.** In times of emergency, governors may "lend" troops in a state active duty or Title 32 status to the governor of another state. Usually, they accomplish this under the auspices of an Emergency Management Assistance

Compact ("EMAC") agreement. EMAC agreements do not contain an annex for law enforcement activities, although gov-

ernors may negotiate a parallel agreement for the use of forces in law enforcement duties. This agreement, or the provi-

sions of law in the receiving state, will determine the type of missions the unit may engage in, and the limitations the

unit may have on the use of force to perform these missions.

3. **Funding**. If there is a state emergency, the governor will usually use National Guard troops when civilian resources cannot meet the anticipated or actual need for services during or following an event. Initially, the governor will activate

National Guard troops in state active duty status using state funds. However, states usually have limited emergency re-

sponse budgets. The declaration of an emergency or major disaster by the President under the Stafford Act authorizes

federal funding, usually disbursed by the Federal Emergency Management Agency ("FEMA"), to the state or states af-

fected. If approved by FEMA, the state may request these funds to support National Guard activities in response to the

event, or to reimburse the state for cost incurred as a result of the event. If troops go to another state under EMAC or

another agreement, the supporting state may need to request reimbursement from the supported state, who may, in

turn, request reimbursement from FEMA.

**COUNTERDRUG SUPPORT**

The federal government provides funding for certain counterdrug activities under 32 U.S.C. § 112. To receive these

funds, the state must submit a plan through the National Guard Bureau, have it approved, and agree to abide by the re-

strictions imposed by the program and plan. While the _Posse Comitatus_ Act does not prohibit Guardsmen in Title 32

status from performing law enforcement duties, as a policy matter, the program prohibits Guardsmen from directly par-

ticipating in the arrest of suspects, conducting searches which include direct contact of National Guard members with

suspects or the general public, or becoming involved in the chain of custody for any evidence except under exigent cir-

cumstances. State law may impose additional restrictions on Guardsmen acting in a law enforcement role. The program

allows Guardsmen to provide the following services: program management, technical assistance, general support,

counterdrug-related training, reconnaissance, and drug demand reduction support. Consistent with these duties, the pro-

gram does not anticipate that Guardsmen will bear arms to perform counterdrug (CD) missions, although policy allows

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it in certain circumstances. ANGI 10-801 also imposes some limitations on the kinds of advanced military training the

Guard may provide to law enforcement agencies. These restrictions only apply to Guardsmen participating in the formal

counterdrug program, and may not apply to other operations conducted outside of the program. CD personnel may only

be used for missions whose primary purpose is counterdrug. For example, the physical and operational tasks of Opera-

tion Jump Start (OJS - the Southwest Border security mission) and CD border missions are identical. However, OJS' pri-

mary purpose is to control illegal immigration. CD soldiers may therefore not be used in OJS.

**CONCLUSION**

Generally speaking, PCA, which prohibits military from engaging in law enforcement, only applies to the National Guard

when in a Title 10 (federal) status. The nature of the law enforcement duties the National Guard may perform in Title

32 or state active duty status varies by state and source of funding. While National Guard forces may need to act quickly

to restore law and order in an emergency, they should always have clear guidance regarding the scope of their authorized

duties and their authority to use force. When in doubt, rely on the general principle that the ANG operates in a law en-

forcement capacity only in support of, not to replace, civilian law enforcement resources.

_**KWIK-NOTE: Remember that the non-applicability of the Posse Comitatus Act to the National Guard in Title 32 or state**_

_**active duty status does not end the matter. "NOT PROHIBITED" under PCA DOES NOT NECESSARILY MEAN "PER-**_

_**MISSIBLE" OR "AUTHORIZED."**_

**RELATED TOPICS:**

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**SECTION**

Aid to Civilian Authorities

6-2

Counterdrug Support Program

6-5

Aircraft Accidents and Safety Investigations Off-Base

16-2

Activation, Chain of Command and Discipline in the Force

28-2

Arming and Rules for the Use of Force

28-7

Intelligence Oversight in Federal Status

28-8

Liability and Environmental Issues

28-10

Pandemic Influenza Response

28-11

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 28, Domestic Operations**_

_**Section 28-4 Wildland Fire Fighting**_

_**Page 1**_

**Wildland Fire Fighting**

**Updated by Major Brooke M. Brooks, March 2017**

**AUTHORITY** : NGR 500-1/ANGI 10-8101, _National Guard Domestic Operations: Emergency Employment of Army and Other Re-_

_sources_ , (13 June 2008); National Interagency Fire Center Military Use Handbook (July 2006); applicable provisions of state law. 

## INTRODUCTION

Every year, wildland fires break out across the United States and particularly in the West. In particularly bad fire years, Governors and the President may declare an emergency, disaster, or fire management assistance declaration and activate

the National Guard for forest fire fighting duty, usually in a state status. The Forest Service, through the National Interagency Fire Center, publishes a comprehensive guide to active duty military operations, called the "Military Use Hand-

book." State status National Guard troops technically fall under local Memoranda of Understanding, rather than the

Handbook, but the Military Use Handbook still serves as a good reference for the issues that arise in these operations.

**GENERAL AND GROUND OPERATIONS**

The Forest Service or state forestry service requests assistance for wildland fire fighting from the governor of the state.

The governor then activates National Guard troops, usually in a state active duty status, but occasionally in Title 32

status. Before serving on a fire, ground troops receive a 2-½ day training program from the Forest Service on the basics

of fire fighting. Deployments to fires often involve lodging in field conditions, requiring coordination of the types of

equipment the Forest Service will provide and those the deploying unit should bring. (Note: Synthetic and steel-toed

boots may not be used on any fire, and Forest Service policy may prohibit the possession of firearms in the base camp or

on the fire.) Usually, the Forest Service provides the majority of logistical support, in terms of food and expendables;

however, the specific incident may require the use of military tactical vehicles (typically HMMWVs, trucks, and water buf-

faloes, not APCs or heavier armored vehicles).

Upon arrival at the fire, if assigned to ground duties, ANG troops usually serve in 20-member "mop-up" crews, helping

extinguish fires other personnel have contained. However, as the team grows in experience or as the need arises, the For-

est Service may employ them in hot line or even initial attack duties. The Forest Service provides supervision and infor-

mation about the type of duty. The Forest Service stresses safety and should provide safety planning, but this does not

excuse the supervisory chain from assessing the threats to safety and addressing them appropriately.

The military chain of command retains command authority, although the Forest Service will direct all fire fighting activi-

ties. Military commanders should recognize the military acts in a supporting role to Forest Service priorities and their

primary duties involve implementing Forest Service priorities through appropriate planning and support. The Forest Serv-

ice essentially directs the operations of ANG forces, while the military chain of command advises and supports them.

Military commanders should advise their Forest Service liaisons when their directives violate good military practice.

**AIR OPERATIONS**

Forest Service policy places control of aviation assets under the control of the military component involved. The Forest

Service designates 5 general categories of support for military aviation, called "designated military missions:" reconnais-

sance/ command and control activities, emergency evacuation/medevac, crew transportation in and around the fire pe-

rimeter, cargo transportation, internal or external and crew and cargo staging from airports to base camps for incident

support. Fire suppression by aerial bombardment with water or retardant falls under non-designated military missions.

ANG aircrews will not generally engage in these activities, and will never do so without completing the necessary addi-

tional training to do so. Forest Service policy discourages the use of active duty military forces in this role because of the training required. Instead they prefer to identify ANG/Reserve crews in advance for required advanced training.

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_**Page 2**_

Once assigned to an incident, the Forest Service assigns military aircraft to missions on the same basis as civilian air-

craft. Military commanders should advise Forest Service aviation planners regarding the roles and missions their aircraft

can perform. The Forest Service has the expertise in how to combat the fire, but military commanders have the expertise

regarding the appropriate use of their troops and equipment and must advise the Forest Service on employment issues.

**CONCLUSION**

Governors often turn to their National Guard troops to respond to emergencies that exceed the capabilities of civilian

agencies to handle, including wildland fires. ANG troops serve in a supporting role to the Forest Service in wildland fire

fighting and generally serve under their tactical control. However, the military chain of command remains intact to pro-

vide supervision, support, and advice regarding the appropriate use of their troops.

_**KWIK-NOTE: Do not assume the Forest Service liaisons know much about the military. Your job is to advise them regard-**_

_**ing ANG capabilities and limitations.**_

**RELATED TOPICS:**

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**SECTION**

Activation, Chain of Command and Discipline in the Force

28-2

Fiscal Law and Title 10 Activations

28-6

Arming and Rules for the Use of Force

28-7

Medical Issues

28-9

Liability and Environmental Issues

28-10

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 28, Domestic Operations**_

_**Section 28-5 Fiscal Law**_

_**Page 1**_

**Fiscal Law, Title 10 Activation and Reimbursement**

**Updated by Lieutenant Colonel Sky W. Smith and Captain Brooke Brooks, March 2017**

**AUTHORITY** : DoDD 3025.18, _Defense Support of Civil Authorities_ , (29 December 2010 incorporating Change 1, 21 Sept 2012); AFI 10-801, _Defense Support of Civilian Authorities_ (23 December 2015); NGR 500-1, _National Guard Domestic Operations_ (13 June 2008); applicable provisions of state law. 

## INTRODUCTION

Generally, National Guard troops may be activated in a few different statuses, where either the state governor or the fed-

eral government controls. Generally, for emergencies within their state, the governor will activate Guard troops when

local resources are exhausted or are anticipated to be inadequate to meet the need. If state resources, including the

state's National Guard, cannot meet the need for services generated by the event, then the President may send federal

forces, including activated National Guard of the United States forces in some cases, to meet the need for services. In ad-

dition to the issues discussed in other sections, federalized forces often run into fiscal law issues, coordination issues

with the lead federal agency on an event, and issues working with non-governmental organizations.

**FISCAL LAW ISSUES**

Fiscal law issues often place limits on the type and nature of operations a commander may order his unit to conduct if

federal funding is involved. Generally, fiscal law places limits on the time, purpose and amount of expenditures of federal

funds. First, when Congress allocates funds to the military, it sets time limits for their expenditure before they revert to the Treasury. Anyone familiar with "end of year fallout money" has experienced this phenomenon. Having money left

over from last year's Operations and Maintenance (O&M) appropriation will not help you in the current fiscal year, as

O&M funds are generally appropriated for a single year period of availability. Congress also appropriates funds for a particular purpose. Commanders must spend appropriated funds for the specified purpose, or for expenses necessary and

incident to the proper execution of the general purpose of the appropriation, for purposes not prohibited by law, and not

for projects provided for in another appropriation. Appropriations also have limits on their amounts. The Anti-

Deficiency Act (ADA) imposes a criminal penalty for violating these fiscal law limitations, especially for committing the

federal government to pay funds not authorized by Congress.

"What color is your money?" is a not-uncommon question in both the domestic and overseas deployed environments.

Typically, Congress allocates certain funds for every contingency. Commanders get into trouble when the funds allocated

directly to the military do not suffice to accomplish the mission, but private contractors have not arrived on the scene.

Logically, they must take action, but they lack the funds to do so. There are a few exceptions. One is immediate re-

sponse authority. Under the immediate response authority, outlined in DoD Directive 3025.18, _Defense Support of Civilian_ _Authorities_ (19 September 2012), "in response to a request for assistance from a civil authority, under imminently serious conditions and if time does not permit approval from higher authority, DoD officials may provide an immediate response

by temporarily employing the resources under their control, subject to any supplemental direction provided by higher

headquarters, to save lives, prevent human suffering, or mitigate great property damage within the United States. Imme-

diate response authority does not permit actions that would subject civilians to the use of military power that is regula-

tory, prescriptive, proscriptive, or compulsory."

If you use AGRs, full-time National Guardsmen on operational support or counter-drug duties, or National Guard Techni-

cians, or expend federal resources in support of immediate response actions, you can expect the U.S. Property and Fiscal

Officer (USPFO) to seek reimbursement of these federal funds.

**REIMBURSEMENT**

In non-immediate situations where a Presidential declaration is in place, the Stafford Act allows DoD to provide the Fed-

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_**Page 2**_

eral Emergency Management Agency ("FEMA"), generally the lead federal agency, with services on a reimbursable basis.

Remember, to be reimbursable, the expense must be directly for the purpose specified by FEMA or reasonable and inci-

dent to the purpose given by FEMA. Reimbursement can become a major issue in a domestic operation, and should not

be assumed absent prior coordination with FEMA.

**WORKING WITH A LEAD FEDERAL AGENCY**

As noted above, FEMA usually serves as the lead federal agency in presidentially-declared major disasters and emergen-

cies. DoD sends federal or federalized forces to support the Federal Coordinating Officer (FCO), the individual in charge

of coordinating federal recovery efforts. The Stafford Act provides for reimbursement only for Defense activities con-

ducted under the direction of the FCO or as necessary to fulfill the requests of the federal response. To give an example,

if the state and federal governments disagreed on the use of the federalized forces, the state could not request that the

federalized forces act independently of the FCO. However, non-federalized forces could act in response to the state's re-

quests, although reimbursement for their expense would not be through DoD. Instead, the state would request direct

reimbursement from FEMA.

As always, military commanders remain the experts on the employment of their forces. The FCO works with the Defense

Coordinating Officer (DCO), who coordinates the DoD response, to help determine which missions federal forces avail-

able can accomplish, and which need to be accomplished by other forces. As a practical matter, military commanders

should not assume that federal civilian officials know the capabilities and restrictions of military forces and should take a proactive role in advising them. For instance, a FEMA civilian may not know that, while the Army Corps of Engineers

has unique expertise in the operation of major civilian works, like dams, a typical deployed Air Force civil engineering

team would not have that particular expertise. Of particular concern, the declaration of a major disaster does not sus-

pend the provisions of the Posse Comitatus Act. The FCO may not issue a mission assignment to use federalized forces

in a law enforcement role, despite the military's expertise with use of force issues. As non-federalized forces often do

these missions, military commanders have to draw a firm line between federal and non-federalized missions. As an Air

National Guard commander, keep in mind what status your unit is in when determining missions.

**WORKING WITH NON-GOVERNMENTAL ORGANIZATIONS**

As evidenced by the response to Hurricane Katrina, the federal government works with non-governmental organizations

(NGOs) extensively in domestic operations. While these organizations provide invaluable services, they do create certain

fiscal law issues. First, the Anti-Deficiency Act prohibits the acceptance of voluntary services, unless a specific exception applies. Fortunately, there are several exceptions: immediate assistance to protect life or property, medical care, natural

resources programs, family support activities, donations to the American Red Cross, and certain gratuitous services pro-

vided under a written waiver of compensation. Further, certain gifts can present problems. Federalized troops cannot ac-

cept cash donations directly. Absent an exception, funds given to the federal government must be deposited into the U.S.

Treasury. This does not prohibit a contribution to a NGO supporting deployed troops or a similar organization. Some-

times, people wish to give non-financial gifts to federalized ANGUS forces. AFI 51-601 governs these gifts, allowing in-

stallation commanders to accept gifts in-kind of $5,000 or less. However, the usual prohibition on the augmentation of

appropriated funds applies and donors should be willing to sign a written instrument documenting the gift.

**CONCLUSION**

Fiscal law issues come up often in the activated environment. Good legal advice can help you find the permissible ways

to accomplish your mission. Often effective alternatives exist to prohibited expenditures. Remember that reimbursement

of your O&M expenditures can become a major issue if your actions are not properly coordinated with FEMA, whether

through the DoD or your state.

_**KWIK-NOTE: Know the amount of money available for the mission and the limits on your authority to spend it.**_

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_**Chapter 28, Domestic Operations**_

_**Section 28-5 Fiscal Law**_

_**Page 3**_

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**SECTION**

Aid to Civilian Authorities

6-2

Activation, Chain of Command and Discipline in the Force

28-2

Posse Comitatus and Its Exceptions

28-3

Wildland Fire Fighting

28-4

_**Air National Guard Commander's Legal Deskbook**_

994

_**Chapter 28, Domestic Operations**_

_**Section 28-6 Arming and the Use of Force**_

_**Page 1**_

**Arming and the Use of Force**

**Updated by Lieutenant Colonel Sky W. Smith and Captain Brooke Brooks, March 2017**

**AUTHORITY** : 18 U.S.C. § 1385; 10 U.S.C. §§ 331-334; 10 U.S.C. §§ 371-382; 32 U.S.C § 112; CJCS SROE/SRUF

(CJCSI 3121.01B); DoDD 3025.18 _Defense Support of Civil Authorities_ (29 December 2010); DoDD 3025.12, _Military Assistance for Civil Disturbances_ (4 February 1994); DoDD 5525.5, _DoD Cooperation with Civilian Law Enforcement Officials_ (15 January 1986); DoD 4515.13-R, _Air Transportation Eligibility_ (November 1994); DoDD5200.31E _DoD Military Working Dog_

_(MWD) Program_ (10 August, 2011); AFI 10-801, _Defense Support of Civil Authorities_ (23 December 2015)); AFPD 10-8, _Defense Support of Civil Authorities_ (15 February 2012); AFMAN 31-201V4, _High Risk Response_ (17 November 2011); NGR

500-1/ANGI 10-8101, _National Guard Domestic Operations: Emergency Employment of Army and Other Resource_ s (13 June 2008); NGR 500-2/ANGI 10-801, _National Guard Counterdrug Support_ (29 August 2008); _National Guard Domestic Law Enforcement_ _Support and Mission Assurance Operations_ , NGR 500-5/ANGI 10-208 (8 August 2010); applicable provisions of state law. 

## INTRODUCTION

The mission dictates the Rules for the Use of Force ("RUF") and the arming policy. The RUF and arming policy for state

forces in a law enforcement mission will sometimes differ from those of a federalized unit performing domestic opera-

tions. Except when called or ordered to federal active duty, the National Guard is a state government entity. The policies

of the Department of Defense and service regulations governing RUF apply to elements of the DoD but not to the states.

As a result, the law that is the basis for the RUF applicable to the National Guard of a state while in any status but fed-

eral active duty status is the criminal law of the state in which a National Guard unit is located. State-specific RUF

("RUF") should be developed by a state SJA in accordance with state law. This RUF should be coordinated with the state

attorney general's office and the governor's legal staff. CJCS Standing Rules for the Use of Force ("SRUF") applies to the

National Guard only when in a federal status (Title 10). Remember that, in all roles, commanders should not unduly

limit the right to individual or collective self-defense, or they risk the RUF becoming irrelevant. Domestic RUF should

emphasize the importance of de-escalating situations to avoid the need to use force, if possible. However, when National

Guard members are in a Title 32 status, being paid with federal funds, DoD, through NGB, may in fact provide limita-

tions as a condition to receiving funds. Nevertheless, the RUF cannot violate state law. One source for assessing the per-

missive nature of an individual state's use of force policy is the Use of Force policy of the State Police or Highway Patrol.

**TRAINING**

National Guard forces must be properly trained on RUF in a particular mission. It is not enough just to give them a "Pow-

erPoint" presentation. Our forces need to be provided situations, facts, and circumstances that allow them the opportu-

nity to "think on their feet" and learn to respond appropriately within seconds. This training should incorporate scenar-

ios based upon applying different levels of force as outlined in NGR 500-5/ANGI 10-208, _National Guard Domestic Law En-_

_forcement Support and Mission Assurance Operations_ (18 August 2010). Proper training will improve operational security, the security of our own personnel, and prevent lawsuits. It also will further enhance our relationship with the United States

public. Especially important when training personnel is ensuring that they realize that the RUF, as opposed to ROE, ap-

ply to domestic missions within our homeland and when citizens of the United States, rather than enemy combatants,

are involved. They must understand that RUF, which are based upon state law, are ultimately grounded in the Fourth

Amendment to the United States Constitution, which applies to their missions when in State Active Duty and Title 32

status.

**STATE STATUS RULES FOR THE USE OF FORCE AND ARMING POLICY**

_**32 USC 112 (Counter-Drug Missions)**_

For counterdrug missions funded by 32 USC §112, special RUF apply. Although National Guard units under state com-

mand and control have greater flexibility than active component forces in conducting counterdrug missions because the

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_**Chapter 28, Domestic Operations**_

_**Section 28-6 Arming and the Use of Force**_

_**Page 2**_

_Posse Comitatus_ Act does not apply to them, the National Guard Bureau has imposed several policy restrictions on Na-

tional Guard counterdrug operations in National Guard Bureau Regulation (NGR) 500-2/ANGI 10-801, _National Guard_

_Counterdrug Support_. As a matter of policy, National Guard personnel will not directly participate in the arrest of suspects, conduct searches which include direct contact of National Guard members with suspects or the general public, or become involved in the chain of custody of any evidence, except in exigent circumstances, or when otherwise authorized.

_**Civil Disturbance Missions**_

For civil disturbance control operations performed in State Active Duty and Title 32 statuses, NGR 500-5/ANGI 10-208,

_National Guard Domestic Law Enforcement Support and Mission Assurance Operations_ , provides several provisions for consideration when drafting RUF policy, one of which is the force continuum. (These provisions are not directive nor regulatory.)

National Guard forces conducting domestic law enforcement support must use the minimum amount of force necessary

to obtain compliance with lawful orders. Military personnel are always authorized and expected to use necessary force

proportional to the threat, in self-defense and defense of others. To determine the appropriate amount of force to use,

soldiers and airmen must be familiar with the tactics, techniques and procedures associated with the six phases of the

force continuum listed below. The levels of force are designed to correspond to the actions of the subject(s) and the Na-

tional Guard member's perceptions of the level of threat with which they are confronted. The use of force continuum de-

scribes the progression or de-escalation of force based upon the subject's demonstrated level of compliance or resistance.

The force continuum is not a ladder requiring each level to be achieved in sequence. A National Guard member provid-

ing law enforcement support may enter the force continuum at any level. The six broad levels are as follows:

1. _Level One - Officer Presence_. The mere presence of uniformed law enforcement or National Guard personnel is often enough to stop or prevent most situations from escalating. Gestures by National Guard members should be non-threatening and professional. This level of force is always the best way to resolve any situation if possible.

2. _Level Two - Verbal Persuasion_. Used in combination with a visible presence, the use of the voice can usually achieve the desired results. Whether the instruction is to, "Stop", "Don't Move", "Be quiet", "Listen to me", or "Let me see your ID" --

voice commands in conjunction with mere presence will almost always resolve the situation. The content of the message

is as important as demeanor. It is always best to start out calm, but firm and non-threatening. The choice of words and

intensity can be increased as necessary, or used in short commands in more serious situations. The right combination of

words along with presence can de-escalate a tense situation and prevent the need for physical altercation.

3. _Level Three - Empty-Hand Control (unarmed defense techniques)_. Certain situations will arise where words alone will not reduce the aggression. At this point, National Guard personnel will need to get involved physically. This level of control is

employed minus the aid of equipment or weapons. There are two subcategories:

a. Soft empty-hand techniques. This level of minimal force involves the use of bare hands to guide, hold, and re-

strain -- applying pressure points, and take down techniques that have a minimal chance of injury.

b. Hard empty-hand techniques. At this level the use of force includes kicks, punches or other striking techniques

to key motor points that have a moderate chance of injury.

4. _Level Four - Chemical Agents._ When the suspect is violent or threatening, more extreme, but nonlethal measures must be used to bring the suspect under control, or affect an arrest. Before moving to this level of force, less physical measures

should have been tried or deemed inappropriate. When used by surprise, pepper spray and tear gas are an excellent dis-

traction, allowing National Guard personnel time to call for assistance or subdue a suspect.

5. _Level Five - Temporary Incapacitation_. To use force at this level means that the situation was so extreme, violent, and immediate that it was necessary to temporarily incapacitate a suspect before arrival of the police. Temporary incapacitation is

used to stop a suspect from injuring you or others long enough to restrain and handcuff them. Batons and Tasers may be

used at this level to temporarily incapacitate a combative person.

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_**Chapter 28, Domestic Operations**_

_**Section 28-6 Arming and the Use of Force**_

_**Page 3**_

6. _Level Six - Deadly Force._ National Guard forces may use deadly force when it can be justified by extreme necessity.

Deadly force is force that a person uses causing, or that a person knows or should know would create a substantial risk

of causing, death or serious bodily harm. There are four requirements for the use of deadly force:

a. Lesser means of force have been exhausted or are unavailable.

b. The subject must be able to cause you or another serious bodily harm or death.

c. You or another must be in imminent danger of serious bodily harm or death.

d. Its use should not significantly increase the risk of death or serious bodily harm to innocent bystanders.

As mentioned above, though, the above force continuum is not directive. When the National Guard is in state active

duty status, the state's RUF must be followed.

**THE USE OF FORCE IN A FEDERAL ROLE**

In the federal role, troops conducting operations in the US generally abide by the unclassified Enclosure L of CJCSI

3121.01B (13 June 2005). The enclosure states that unit commanders always retain the inherent right and obligation to

exercise unit self defense and may limit the right of individuals to act in self-defense when performing a mission with the

unit. Commanders should exercise extreme caution in attempting to limit the right to individual self-defense and should

always remember their obligation to effectively protect their forces.

The use of force should be reasonable in intensity, duration and magnitude based on the totality of the circumstances.

The federal RUF allow the use of non-lethal weapons, including pepper spray, but do not authorize warning shots. They

permit the use of deadly force when all lesser means have failed or cannot be reasonably employed in the following cir-

cumstances – self-defense, defense of others, protection of assets vital to national security, protection of inherently dan-

gerous property, protection of national critical infrastructure and in three instances involving criminal conduct. These

authorize deadly force to: 1) prevent the commission of a serious offense that involves an imminent threat of death or

serious bodily harm, 2) prevent the escape of a prisoner suspected of committing or attempting to commit a serious of-

fense, and 3) arrest or apprehend (or detain) a person who is suspected to have committed a serious offense involving

death or serious bodily harm. These general rules do not cover all missions. The CJCS SROF has additional annexes for

specific missions. Commanders should consult these annexes, which may be classified, before deploying on a mission.

**ARMING ORDERS**

Arming considerations follow the mission and the RUF. Arming orders are a state of preparedness to use force. They

should not be confused with the authority to use force once an airman is faced with a threat.

In almost all domestic missions, troops are armed primarily to defend themselves and critical assets. Fully automatic

weapons and explosives should require a special justification of need. If non-lethal means are employed, troops should

receive training on their employment. ANG personnel should only receive weapons that they have qualified to use.

Keep in mind that weapons policies vary between the services. Commanders should not require troops to carry weapons

in an unfamiliar loading or safety status.

**CONCLUSION**

The RUF for a mission may vary with the federal or state status of National Guard personnel, the location, and the na-

ture of the mission. Good RUF do not substitute for good judgment on the scene. Commanders should stress the impor-

tance of de-escalating conflict and resolving conflict without the use of force. ANG commanders should consult with

their State SJA to ensure compliance with state law when implementing their RUF and arming policies. Judge Advocates

should brief the RUF and arming orders at the JRSO&I prior to armed troops being employed in a domestic response.

_**KWIK-NOTE: Commanders have the obligation to provide RUF before arming troops.**_

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 28, Domestic Operations**_

_**Section 28-6 Arming and the Use of Force**_

_**Page 4**_

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Aid to Civilian Authorities

6-2

Activation, Chain of Command and Discipline in the Force

28-2

_Posse Comitatus_ and Its Exceptions

28-3

Note: For the USNORTHCOM AOR, Garden Plot has been replaced by USNORTHCOM CONPLAN 2502, Civil Distur-

bance Operations, 23 January 2007. The SRUF will be used as modified by SECDEF and the US Attorney General based

upon mission needs; Garden Plot will remain in effect for the PACOM and SOCOM AOs.

_**Air National Guard Commander's Legal Deskbook**_

998

_**Chapter 28, Domestic Operations**_

_**Section 28-7 Intelligence Oversight in Federal Status**_

_**Page 1**_

**Intelligence Oversight in Federal Status**

**Updated by Major Brooke M. Brooks, March 2017**

**AUTHORITY** : 50 U.S.C. § 3002 et seq., 50 U.S.C. §1801; EO 12333; DoDD 5200.27, _Acquisition of Information Concerning_ _Persons and Organization Not Affiliated with the Department of Defense_ ; DoDD 5240.1, DoD Intelligence Activities; DoDI 5240.04, _Counterintelligence (CI) Investigations_ ; DoD 5240.1-R, incorporating Change 1, effective 8 Aug 16 ( _see_ DoD Manual 5240.01), _Procedures Governing the Activities of DoD Intelligence Components That Affect U.S. Persons; Memorandum of Agreement_ _Between the Attorney General and the Secretary of Defense, "Agreement Governing the Conduct of Defense Department Counterintelligence Activities in Conjunction with the Federal Bureau of Investigation,"_ 5 April 1979; _Memorandum of Agreement Between the Federal Bureau of Investigation and the Department of Defense, "Coordination of Counterintelligence Matters Between FBI and DOD,"_ 20

June 1996. 

## INTRODUCTION

Federal law puts substantial limitations on the activities of intelligence personnel in the United States. Generally, mili-

tary organizations in federal status may only collect information on US persons (including corporations and unincorpo-

rated associations) essential to protect DoD functions and property, maintain personnel security, and conduct operations

related to civil disturbances. OSI and Security Forces personnel usually conduct those missions under restrictive policies.

In the context of domestic operations, the issues of intelligence oversight come to light mostly in response to requests

from civilian authorities.

**REQUESTS FOR ASSISTANCE**

Requests for intelligence support do not always violate the restrictions on intelligence collection. For instance, we may

conduct missions for damage assessment, search and rescue, and disaster relief operations with ANG assets. These do

not violate the restrictions. However, we will not generally support requests for intelligence to support law enforcement

assets, unless authorized by SECDEF. When we obtain law enforcement intelligence incidentally to our operations, we

may pass that information to appropriate law enforcement agencies. For instance, if we used UASs to survey an area

struck by a tsunami for damage, and happened to see individuals engaged in criminal activity, we should pass that infor-

mation on to civilian law enforcement authorities. However, we could not support a direct request by law enforcement

authorities to survey an area for the purpose of finding criminal activity.

We may use ISR platforms or other technology to detect and identify direct threats to DoD forces, facilities, and person-

nel. For instance, we could use a UAS to maintain overwatch and threat detection for a group of airmen conducting

search and rescue operations. We could not, however, use the same assets under federal control to perform the same mis-

sion for non-federalized National Guard troops conducting law enforcement operations.

As a general rule, the federal government "owns" much of the equipment we operate. While we retain the ability to act

in a number of roles in state status, when we activate, we follow the same restrictions as active duty Air Force personnel.

Federal law has evolved to include several restrictions to keep the federal military mission focus away from internal intel-

ligence gathering and law enforcement. When we use "our" equipment, we have to take into account the restrictions that

federal law may place on it.

**GUIDANCE ON THE USE OF UNMANNED AERIAL SYSTEMS (UAS)**

The Department of Defense recently (Sep 2006) released new guidance on the use of Unmanned Aerial Systems. The

new policy encourages the use of UAS in domestic operations, but does not change the backdrop of legal restrictions on

intelligence gathering on specific people within the United States. Prior to the use of UAS in Defense Support of Civil

Authorities missions, the consent of the Secretary of Defense (or his designee) must be obtained using the processes

spelled out in DoDD 3025.18, _Defense Support of Civil Authorities_ , or CJCSI 3701.01, _DoD Counterdrug Operations_.

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 28, Domestic Operations**_

_**Section 28-7 Intelligence Oversight in Federal Status**_

_**Page 2**_

However, DoD encourages the states to incorporate the use of UAS systems in their homeland security and consequence

management planning. As a matter of policy, National Guard personnel conducting DoD UAS domestic Homeland De-

fense or Defense Support of Civil Authorities mission will be in Title 10 status, unless otherwise directed by the Secre-

tary of Defense.

**CONCLUSION**

While Air Force ISR platforms are able to assist law enforcement operations, intelligence law restrictions often prevent

their use. As a general rule, we may use these assets only for non-law enforcement missions, although we may protect

our own forces, facilities and operations and pass on incidentally collected information.

_**KWIK-NOTE: The intelligence law restrictions mirror the Posse Comitatus Act - we may not use them to support law enforce-**_

_**ment directly.**_

**RELATED TOPICS:**

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**SECTION**

Aid to Civilian Authorities

6-2

Activation, Chain of Command and Discipline in the Force

28-2

Posse Comitatus and Law Enforcement Operations

28-3

Support of Border Operations/Operation Jump Start

28-5

Fiscal Law, Title 10 Activation, and Reimbursement

28-6

_**Air National Guard Commander's Legal Deskbook**_

1000

_**Chapter 28, Domestic Operations**_

_**Section 28-8 Medical Issues**_

_**Page 1**_

**Medical Issues**

**Updated by Lieutenant Colonel Sky W. Smith, October 2013**

**AUTHORITY** : 18 U.S.C. § 1385 (Posse Comitatus); 42 U.S.C. 300hh-11 (National Disaster Medical System); 42 U.S.C.

§ 264 (Regulations to control communicable diseases); 42 C.F.R. Part 70 (Interstate Quarantine); DoDI 6200.3, _Public_

_Emergency Management Within the Department of Defense_ (5 March 2010 incorporating 1 June 2013 changes); AFI 48-105, _Surveillance, Prevention, and Control of Diseases and Conditions of Public Health or Military Significance_ (1 March 2005 incorporating 17 October 2011 changes); applicable state law. 

## INTRODUCTION

Medical ANG elements may respond in a variety of roles to a major disaster. While they do not have a prohibition on

treating civilians, they should place a priority on accomplishing the assigned mission. Medical issues arise in the immedi-

ate aftermath of a disaster, during employment as a supporting unit of a military deployment and when used to conduct

missions under the direction of the Public Health Service. Reimbursement of funds can become a major issue in medical

missions, requiring coordination with FEMA and the Public Health Service prior to deployment.

**IMMEDIATE RESPONSE AUTHORITY**

Commanders have the authority to respond immediately to emergencies to save the life or health of people in the imme-

diate area. This immediate response authority allows them to take such steps as may be immediately necessary to treat

injured or ill people in the immediate aftermath of a disaster, or who they encounter in the performance of another mis-

sion. This authorization only applies to immediate actions or actions taken to address an emergency.

In the event of a hurricane, military personnel could take care of civilians injured in the immediate aftermath of the hurricane. However, they could not use this authority to, for instance, vaccinate the community against the flu. This authority

includes the authority to conduct necessary medical duties in support of other operations, such as search and rescue.

**RESPONSE AS A SUPPORTING ELEMENT OF A DEPLOYING MILITARY FORCE**

ANG units may deploy with integral medical elements to maintain a healthy force. While these units may engage in im-

mediate and emergency responses to civilian crises, they should maintain their general focus on maintaining military

readiness, not providing services to the civilian community.

**RESPONSE AS A PART OF THE NATIONAL DISASTER MEDICAL SYSTEM**

The military serves in the National Disaster Medical System under the direction of FEMA, the Department of Health and

Human Services (HHS), and the Public Health Service (PHS). HHS provides the medical response for FEMA during a ma-

jor disaster. The Public Health Service is the organization in HHS which conducts these activities. In this role, rather

than providing support to a deployed military element, ANG medical elements may perform the duties detailed to them

by FEMA and the Public Health Service. These duties may include specialized military missions, such as AEROVAC, or

more general medical support, such as aiding in vaccination to prevent outbreaks in disaster survivors. The scope of

these duties should be made clear by the requesting agency. Military medical elements should avoid mission creep and

exceeding the authority given in these missions, although they may point out military capabilities to the civilian agencies

they support.

**SPECIAL ISSUES**

**Mortuary Services and the Handling of Dead Bodies.** While civilian authorities may task military units to conduct

these missions, care should be taken to avoid the handling of bodies by unqualified personnel. With the real public

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_**Section 28-8 Medical Issues**_

_**Page 2**_

health risks involved, exposure to dead bodies entails substantial risk of psychological damage. Commanders should

avoid exposing their troops to this risk without preparing them. Also, remember that the services element has responsi-

bility for mortuary affairs, not the medical element.

**Enforcement of Quarantine.** State authorities have the primary role in imposing and enforcing quarantine. The CDC

has certain limited authority to respond as the lead federal agency if state resources are exhausted or the threat comes

from outside the country. Generally, the issue of quarantine enforcement is one of state law and is accomplished with the

use of forces in a state status, if necessary, when civilian resources are exhausted. If the need exceeds state resources, federal or federalized forces may act in their traditional support roles. The _Posse Comitatus_ Act does not contain an exception for the enforcement of quarantine, so these duties will generally entail medical and logistical support, rather than law

enforcement duties.

**Enforcement of a Base Quarantine.** Base commanders have the authority under DoD and Air Force policy to exercise

extraordinary health powers on a military installation. Commanders not in a federal status may or may not have these

same or similar powers under state law. In general, commanders will have public health powers on base they do not have

off base. These may include enforcing a base quarantine or sanitary cordon to prevent infection of the base populace or

prevent the spread of an infection off-base.

**CONCLUSION**

ANG medical assets may respond to a major disaster in a number of roles. While they may always act to preserve life and

health in an emergency, they should generally limit their efforts to the specific mission assigned.

_**KWIK-NOTE: Medical services serve both general support and specific mission support in a crisis.**_

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**SECTION**

Aid to Civilian Authorities

6-2

Activation, Chain of Command and Discipline in the Force

28-2

Fiscal Law, Title 10 Activation and Reimbursement

28-6

Liability and Environmental Issues

28-9

Pandemic Influenza Response

28-10

_**Air National Guard Commander's Legal Deskbook**_

1002

_**Chapter 28, Domestic Operations**_

_**Section 28-9 Liability and Environmental Issues**_

_**Page 1**_

**Liability and Environmental Issues**

**Updated by Major Brooke M. Brooks, March 2017**

**AUTHORITY** : 28 U.S.C. § 1346(b); 28 U.S.C. §§ 2671-2680; 42 U.S.C. §§ 6901-6992; 42 U.S.C. § 1983; 32 U.S.C. 715,

as amended; AFI 32-7040, _Air Quality Compliance and Resource Management_ (4 November 2014); AFI 32-7042, _Waste Management_ (7 November 2014); AFI 51-501, _Tort Claims_ (13 Sep 2016); applicable state law. 

## INTRODUCTION

Commanders can run into issues of liability and environmental protection in domestic operations, just as at their home

station or in the deployed environment overseas.

**LIABILITY ISSUES IN STATE AND FEDERAL STATUS**

When troops act in a state active duty status, the state law of the state they are operating in will govern their liability.

Often, states have a degree of limited immunity for state employees. National Guard troops may or may not qualify as

state employees outside of their state. When acting under Title 32, the National Guard Claims Act applies. This statute

allows compensation through a claims process, generally through the nearest active duty Air Force base. When acting in

Title 10 status, the Federal Tort Claims Act applies. The FTCA allows claimants to pursue an administrative claim

through the active duty Air Force, then to file suit in federal court if the agency declines to settle for an amount the claimant will accept. In all cases, the military response to an incident creating the possibility of liability should be the same –

the prompt investigation of the facts and forwarding of the file to the office responsible for processing the claim.

While ANG members do not usually have individual liability for their actions in the scope of their duties, certain duties

may expose a member to individual liability. Of particular interest in domestic operations, 42 U.S.C. § 1983 allows civil

suits against law enforcement personnel individually for the deprivation of civil rights. Also, certain provisions of environmental law, _e.g._ the Solid Waste Disposal Act (SWDA) (also known as the Resource Conservation and Recovery Act

(RCRA)), allow individual liability. Another issue to consider is that the RCRA is predominately a state program with

oversight from the Environmental Protection Agency (EPA), so implementation, and liability concerns, will vary from

state to state. The best practice is to treat these claims as any others, by investigating and determining the facts so that the claim may be settled or defended, as merited by the facts.

Commanders should anticipate receiving complaints and claims due to military operations. While we seek to avoid liabil-

ity for claims, the nature of military operations makes them inevitable. For instance, military forces may need to take cer-

tain property or occupy certain land for a period of time to conduct military operations. Private property owners may re-

cover for these losses. While we seek to avoid causing such damage, the Air Force has no interest in denying just compen-

sation to legitimately injured individuals.

**CLAIMS PROCESSING**

Often claimants just want to know who to seek compensation from. This can be a surprisingly complicated question.

Generally, in state active duty status, the state employing the troops will process claims of damage or injury from mili-

tary operations. When in Title 32 status, the National Guard Claims Act allows processing of the claim by the nearest

ADAF installation. In Title 10, the nearest active duty base will also process the claim. Commanders should not solicit

claims, but may provide information about the appropriate agency to contact for claims processing.

**ENVIRONMENTAL ISSUES**

Environmental statutes do not generally have exceptions for contingency operations. On the positive side, deployed Na-

tional Guard forces often lack the "big footprint" that home station airfield activities can create. The responsibility for

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_**Page 2**_

environmental compliance generally falls on the "owner" of the facility. However, ANG commanders deployed for domes-

tic operations should consider the air, water, and waste footprint of their activities to avoid environmental liability after the operations.

The Clean Air Act generally covers emissions of certain air pollutants, particularly ozone, carbon monoxide, sulfur diox-

ide, particulate matter, nitrous oxide, and certain hazardous air pollutants like benzenes, perchlorethlyene, and methyl-

ene chloride. In general, the facility manager will be responsible for considering the additional impact of National Guard

troops on the facility. However, if ANG forces bring generators or other equipment, they may need to coordinate with

the facility manager on their use. Most mobile sources will meet Clean Air Act requirements by virtue of qualifying un-

der tailpipe emissions standards at home station.

The Clean Water Act regulates water emissions. Deployed forces generally avoid CWA problems by using existing infra-

structure or contracted services. However, if such are unavailable, the commander may need to coordinate with the lead

federal agency and state regulating agency to avoid CWA violations.

The management of hazardous waste presents unique problems in the deployed domestic environment. While hazardous

waste generators in the ANG know the requirements of hazardous waste management, the usual channels for processing

the waste may not be available. When hazardous waste generation cannot be avoided, advance planning is necessary to

arrange for the storage, transportation and disposal for hazardous waste.

**SPECIAL ISSUES**

**Aerial Spraying.** After Hurricane Katrina, the Centers for Disease Control requested, through FEMA, the AF conduct

aerial missions to eradicate mosquito populations. This would control potential disease outbreaks in the region. Time

did not permit the use of the environmental impact statement (EIS) process. Since the spraying was done at the request

of the CDC and the state of Louisiana, the AF agreed to perform the mission, but requested that the requesters execute a

hold harmless agreement to protect the Air Force from liability. This comports with the military's role as a supporting

agency in a disaster response.

**CONCLUSION**

A disaster does not eliminate the need to address liability and environmental impacts. Advance planning and the use of

existing channels for disposal of waste can mitigate the potential liability of the military for damage.

_**KWIK-NOTE: Consider the liability and environmental consequences before acting.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

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**SECTION**

Aid to Civilian Authorities

6-2

Activation, Chain of Command and Discipline in the Force

28-2

_Posse Comitatus_ and Its Exceptions

28-3

Wildland Fire Fighting in State Status

28-4

Support of Border Operations

28-5

Fiscal Law, Title 10 Activation, and Reimbursement

28-6

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1004

_**Chapter 28, Domestic Operations**_

_**Section 28-10 Pandemic Influenza Response**_

_**Page 1**_

**Pandemic Influenza Response**

**Updated by Lieutenant Colonel Sky W. Smith, October 2013**

**AUTHORITY** : 10 U.S.C. 331-335; 42 U.S.C. 264; 42 CFR Section 70; National Strategy for Pandemic Influenza, Home-

land Security Council, November 2005; HHS Pandemic Influenza Plan, November 2005; DODI 6200.2, _Application of Food_

_and Drug Administration (FDA) Rules to Department of Defense Force Health Protection Programs_ (27 Feb 2008); DODI 6200.3, _Public Health Emergency Management Within the Department of Defense_ , 5 March 2010 incorporating change 1 June 2012); Implementation Plan for Pandemic Influenza, August 2006; AFI 10-2603, _Emergency Health Powers on Air Force Installations_ , 13

October 2010; HQ AFNORTH CONPLAN 2591-06, C _oncept Plan for Pandemic Influenza Response; Model State Emergency_

_Health Powers Act_ (not adopted in all states, list by state at http://www.publichealthlaw.net); applicable state law. 

## INTRODUCTION

Recently, the public health response to epidemics has emerged as a possible military mission. Although we're all familiar

with the common flu and get flu shots annually, different variants of the flu virus erupt each year, as the virus mutates or transfers from other animals. The Centers for Disease Control (CDC) estimates that 5-20% of people get the flu annually, 200,000 Americans are hospitalized with complications of the flu, and 36,000 people die of the flu and complica-

tions. The flu usually kills by causing pneumonias – the accumulation of fluid in the lungs, causing hypoxia and death.

The most effective way to combat the flu is to receive a vaccination – the flu shot. The flu shot contains three or four

killed viruses - one A (H3N2) virus, one A (H1N1) virus, and one or two varieties of a B virus. (The H and N refer to an-

tigens on the surface of the A virus, while the flu has three more general strains, A, B, and C.) Scientists select based on a variety of factors, including their prevalence in the prior Southern Hemisphere winter. Scientists grow the vaccine in

eggs, process it, and then provide the vaccine to patients. The killed virus causes an immune reaction that allows the

body to fight off the live virus 70-90% of the time. The flu virus mutates easily, so the flu shot cannot catch all variants that a person might encounter. Some evidence exists that vaccination for one type of flu might help the body fight off

other types. The world capacity for vaccine production in 2006 is about 400 million, including about 110 million doses

for use in the US. The government has undertaken a number of efforts to increase production of flu vaccines to create a

larger industrial base to respond to an epidemic, but vaccinations remain a low-profit enterprise, limiting the number of

companies interested in producing them.

The flu most often spreads through respiratory droplets. When a person coughs or sneezes, it creates a flurry of droplets,

which will contain the flu virus if a person has been infected. More rarely, other bodily fluids can transmit the flu. Once

infected, the flu has no specific 'cure.' Some forms of the flu respond to antiviral drugs, like Tamiflu, while others do not.

Antibiotics have no effect on the flu, although they can help prevent secondary bacterial infections. Generally, most peo-

ple receive only supportive care ("get plenty of rest and drink lots of liquids") for the flu.

The military role in flu response evolves rapidly. Epidemic prevention and protection of the force from the flu remain the

most common ongoing missions. The structure of military life makes military members especially susceptible to flu expo-

sure. In recent years, the threat of pandemic avian influenza caused an increase in planning for a pandemic response mis-

sion. This section explores the history of flu epidemics, the unique characteristics of avian flu, and possible military prevention and response strategies.

**THE "SPANISH FLU" EPIDEMIC OF 1918**

_I had a little bird,_

_Its name was Enza._

_I opened the window, And in-flu-enza._

\- Children's rope skipping rhyme from 1918

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Scholars have described the influenza epidemic of 1918 as the most devastating epidemic in recorded world history. It

killed between 20 and 40 million people worldwide in 1918-1919, more than in four years of the Black Plague in the

Fourteenth Century. Also called the swine flu because of its ability to infect pigs as well as humans, it was a type A

H1N1 virus. Although we affiliate this flu outbreak with pigs, scientists still don't know whether the flu started in pigs,

or started in people and spread to pigs. It infected 28% of Americans and killed an estimated 675,000 of them. The death

rate for the flu hit 2.5%, far exceeding the 0.1% of previous outbreaks. People often died within hours of feeling the first symptoms. Medical science had little ability to combat the outbreak, as studies into the biological basis of disease had

yet to reveal viruses.

Unlike most influenza, which primarily kill children and the elderly, this epidemic was most deadly for people between

20 and 40 years old. The death rate for people 18 to 34 years old was 20 times what it had been in earlier outbreaks. The

close quarters environment of the military multiplied the effect of the flu. At one point, despite General Pershing's de-

mands for more troops, President Wilson had to consider discontinuing troop movements to Europe because of the risk

that the flu would kill too many troops in the confines of the troopships. Some 43,000 American soldiers died from influ-

enza during the epidemic. The combination of close quarters and the disproportionate death rate for military age men

made the disease particularly threatening to the military.

The outbreak went around the world. It lasted about 18 months before disappearing. The only country remotely effective

in controlling the outbreak was Japan, which severely limited maritime traffic during the outbreak.

**AVIAN INFLUENZA**

Types of the A and C flu have the ability to jump species. Sometimes the flu has the same mortality in both an animal spe-

cies and humans, but, more commonly, it will have a lesser effect on one of the species. Often, the virus "shelters" in the

species it kills less often, then jumps to the other species, killing many of that species. Of particular concern, certain type A flu viruses, including the H5N1 variant, have shown the ability to jump from birds to humans in certain circumstances, resulting in the name "the bird flu." (Please note that Type A influenza does not usually refer to the avian flu

generally or the H5N1 variant specifically. The A does not stand for avian.)

Currently, the H5N1 variants do not have a strong ability to jump between humans, although the effects of infection

with H5N1 influenza can be devastating. There are few reports of human-to-human transmission. The reported cases of

H5N1 flu have arisen from close contact between birds and humans. The affinity of this variant to the Far East arose be-

cause of living conditions involving close contact with birds. Unfortunately, as of 10 August 2012, 359 of the reported

cases of human highly pathogenic H5N1 influenza have resulted in death. However, it should be noted that the lethality

of a virus strain can vary as much as its transmissibility. For instance, the Ebola-Zaire virus kills 50-90% of people in-

fected, but does not travel easily through the air, while Ebola-Reston apparently can travel through the air, but is proba-

bly harmless in humans.

The threat of pandemic avian flu arises from the high mutation rate for the flu virus. Flu virus mutations often change

their ability to survive in a new host and transmit between hosts. While H5N1 does not currently transmit between hu-

mans easily, it could mutate to do so with relative ease and no notice. The interconnected nature of the modern world

and the migratory nature of birds create serious concerns about the quick worldwide propagation of such a mutation.

**TYPES OF PANDEMIC RESPONSE**

Medical responses to pandemics vary from direct treatment to transportation to enhanced prevention and protection.

Many examples of military involvement in direct treatment exist in recent memory. Air Force medics from Lackland AFB

responded to the Houston floods and 9/11 to provide direct medical services. The Air Force serves as the lead agency for

medical evacuation in the military. In response to Hurricane Katrina, we provided medevac services for seriously ill pa-

tients in the New Orleans area. The military could also serve to assist in mass immunizations, a capability we exercise

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_**Page 3**_

internally annually with the flu vaccine. The medical roles contemplated in the current response plans generally mirror

common military medical tasks.

Traditionally, societies have taken three general types of non-treatment response to prevent the spread of disease: isola-

tion, quarantine and sanitary cordon. Isolation, often mistakenly called quarantine in non-technical contexts, means tak-

ing people or animals who have a disease and preventing them from infecting others by removal or restraint. For in-

stance, hospitals isolate people with active tuberculosis in special rooms to prevent the spread of the disease. Many

states have laws that allow for the involuntary commitment of people with certain disease to hospitals as a type of isola-

tion. Countries often require that animals imported from other countries stay for a period in a quarantine zone, until it

becomes clear that they do not have an infectious agent. Quarantine refers to the restriction of certain healthy subjects

because of concerns of exposure. Sanitary cordon, or _cordon sanitaire_ , means the prohibition on crossing a certain border to prevent the spread of disease. California enforces a sanitary cordon on fruit with inspection stations at points of entry to protect their agriculture. While each of these terms has a different spectrum of meanings, they overlap in common usage, making it important to be specific when describing a particular action.

Even without military involvement, the restrictions on movement entailed in isolation and quarantine may require a de-

gree of due process. The State Model Health Emergency Powers Act, for instance, has procedures for isolation with and

without notice and provides for hearings for those who are involuntarily isolated. Not all states have adopted this Act

and they will often have their own idiosyncratic processes. AFI 10-2603 provides for a notice process for civilians quaran-

tined on base. Before implementing or assisting in the implementation of any of these measures, check the level of proc-

ess required under the authorizing law or regulation and ensure that the required procedures are followed.

ANG units may engage in other types of response to a pandemic. These may include traditional Guard roles in emer-

gency response and serving as a well managed labor reserve for governmental services. Health emergencies may require

an increase in government services unrelated to the health response, including backfilling the government service posi-

tions usually held by state employees detailed to emergency duties.

**RESPONSE PLANS**

Response plans rely on certain assumptions of the nature of an outbreak. Important planning assumptions include: 1) no

one will be immune to the virus initially and antivirals will be in limited supply; 2) the disease will affect 30% of the general population and 20% of working age adults; 3) 50% of those infected will seek outpatient care; 4) hospitalization

rates will range from roughly 1-10% of those infected; 5) the incubation period before onset of symptoms will be about

two days, but a person may pass on the disease up to a day before the onset of symptoms; and 6) the outbreak will last

about 6-8 weeks in a community, 18 months worldwide and may have a number of waves.

**1. Immediate Response/Force Protection/Base Security/Mission Continuity.** In the event of an outbreak, the com-

mander's first duty is to preserve her forces to continue the military mission. AFI 10-2603 provides base commanders,

including Air National Guard commanders, broad authority to respond to protect the force from infection. This includes

restricting access to the base, closing facilities, decontamination, providing lodging and sustenance for forces, and a wide variety of other powers. Commanders exercise these powers through the appointment of a Public Health Emergency Officer, generally the medical element commander or a senior provider from the medical element. Additionally, the com-

mander may have powers to preserve military or civilian life, health and property under immediate response authority in

areas under her command or nearby. The law grants this authority for two important reasons: 1) to allow for continuity

of ongoing missions, such as homeland defense; and 2) to conserve military forces for use to respond to the emergency.

**2. State Response.** The Model State Emergency Health Powers Act and similar state laws give the states the primary

authority to regulate public health within their boundaries. Of general interest, these laws usually allow the governor to

declare a public health emergency, to declare and enforce isolation, quarantine and sanitary cordons, to activate the Na-

tional Guard as a state militia, and to use the Guard to enforce isolation and quarantine rules. The states have begun to

_**Air National Guard Commander's Legal Deskbook**_

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_**Chapter 28, Domestic Operations**_

_**Section 28-10 Pandemic Influenza Response**_

_**Page 4**_

create their own pandemic flu response plans, although not all states currently have a plan and not all plans explicitly ad-

dress the role of the National Guard.

In general, ANG commanders should anticipate and plan for the use of their forces in a variety of roles. Of immediate

interest, units with ongoing Title 10 or Homeland Defense missions will need a plan to continue these operations and to

inform state authorities of the impact on the availability of their forces. Given the progressive nature of influenza out-

breaks, commanders also may have to recall troops activated in state active duty status or Title 32 status from their state

duties for assignment to Title 10 duty, should they be federalized.

Commanders should also consider the availability and use of their medical elements. Full-time medical troops will pre-

sumably have their hands full with medical duties involving force protection. Activating additional troops for military

missions may impact the civilian medical community, which will presumably have manpower challenges of its own. Medi-

cal commanders should be aware of this impact and plan accordingly. Also, commanders may need to take proactive

steps to inform state authorities of their medical capabilities. For instance, most medical elements could support a mass

immunization line, but not all units could man a field hospital. Further, medical elements have particular susceptibility

to recall for federalized medical missions, making early coordination critical between state and federal authorities to de-

termine the role of the medical element.

Forces not used in base security, federal, or medical missions may be used in a variety of state roles. These roles do not

substantially differ in character than those performed for other civil support missions and may include assisting the provi-

sion of government or health services on a variety of levels, logistics management, and security, quarantine or law en-

forcement duties. Please remember that the performance of law enforcement duties should be pursuant to a specific

authorization to do so in state law or by the governor's orders. Federalized troops may not generally be used in a law en-

forcement role, unless an exception to the _Posse Comitatus_ Act applies (such as military installation security and law enforcement).

**3. Federal Response.** NORTHCOM plans currently envision that many ANG personnel will not be available for federal

service due to the critical nature of their civilian duties in a health emergency. Also, all plans envision that ANG forces

will suffer infection rates at the same rate as the civilian community, further limiting the available troops. NORTHCOM

response plans set forth the following lines of effort: 1) force protection/force health protection; 2) slowing the spread of pandemic influenza; 3) support public health care; 4) support civil order; 5) support public information efforts; 6) ensure

the continuity of government functions; 7) ensure essential transportation and commerce; and 8) foreign humanitarian

assistance and disaster relief. In particular, the plans anticipate requests for defense support of civil efforts in: 1) medical laboratory, personnel or equipment; 2) logistics distribution and storage support, and 3) air transportation expertise to

include delivery of antivirals and PPE to infected area and retrograde lift for those approved personnel to be repatriated

back to the United States.

NORTHCOM also envisions standing up 6 regional centers for civil support operations. ARNORTH will command the

response and Army components will command four regional centers. Two centers will be under the command of AF-

NORTH teams. ANG assets may be federalized to serve in any of the regions. The nature of support will vary by the re-

quests made and the forces available. The nature of a widespread outbreak would probably severely limit the defense sup-

port available to any particular area.

**CONCLUSIONS**

A real risk exists for pandemic influenza in the near future. The history of influenza outbreaks suggests that a large per-

centage of people would get sick, and the possibility of a large number of deaths exists. The ANG response to pandemic

influenza should focus on preserving military capabilities first, then on the capabilities that the ANG can bring to the

state and federal responses.

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_**Chapter 28, Domestic Operations**_

_**Section 28-10 Pandemic Influenza Response**_

_**Page 5**_

_**KWIK-NOTE: Pandemic flu will require a complex response from ANG forces on the local, state and federal levels.**_

**RELATED TOPICS:**

****

****

****

****

****

****

****

****

****

****

****

**SECTION**

Aid to Civilian Authorities

6-2

Activation, Chain of Command and Discipline in the Force

28-2

_Posse Comitatus_ and Its Exceptions

28-3

Medical Issues

28-9

_**Air National Guard Commander's Legal Deskbook**_

1009
