## Dod Instruction 5525.07 Implementation Of The August 1984 Memorandum Of Understanding (Mou) Between The Department Of Justice (Doj) And Dod Relating To The Investigation And Prosecution Of Certain Crimes


Originating Components: Office of the General Counsel of the Department of Defense

Office of the Inspector General of the Department of Defense


Effective:
March 5, 2020

Releasability:
Cleared for public release.  Available on the Directives Division Website at https://www.esd.whs.mil/DD/.

Reissues and Cancels:
DoD Instruction 5525.07, "Implementation of the Memorandum of Understanding (MOU) between the Departments of Justice (DoJ) and Defense Relating to the Investigation and Prosecution of Certain Crimes," June 18, 2007

Approved by:
Paul C. Ney, Jr., General Counsel of the Department of Defense

Glenn A. Fine, Performing the Duties of the Inspector General of the Department of Defense


Purpose: In accordance with the authorities in DoD Directive 5106.01 and DoD Directive 5145.01, this issuance establishes policy, assigns responsibilities, and prescribes supplemental guidance to the 1984 DOJ/DoD MOU.



## Table Of Contents

 SECTION 1:  GENERAL ISSUANCE INFORMATION ........ 3
1.1.  Applicability. ........ 3 1.2.  Policy. ........ 3
SECTION 2:  RESPONSIBILITIES ........ 4
2.1.  IG DoD........ 4 2.2.  General Counsel of the Department of Defense. ........ 4 2.3.  Secretaries of the Military Departments. ........ 4
SECTION 3:  INQUIRIES FOR WHICH THE DOJ HAS ASSUMED INVESTIGATIVE RESPONSIBILITY BASED ON THE 1984 DOJ/DOD MOU ........ 5 SECTION 4:  DOD SUPPLEMENTAL GUIDANCE TO THE 1984 DOJ/DOD MOU ........ 6
DoD Supplemental Guidance - B.  Policy. ........ 18
DoD Supplemental Guidance - C.  Investigative and Prosecutive Jurisdiction. ........ 18 DoD Supplemental Guidance - C.1.b. Frauds Against the DoD and Theft and Embezzlement
of Government Property. ........ 19
DoD Supplemental Guidance - C.2.  Crimes Committed on Military Installations. ........ 19 DoD Supplemental Guidance - C.3.  Crimes Committed Outside Military Installations by
Persons Who Can Be Tried by Court-Martial........ 20
DoD Supplemental Guidance - E.  Prosecution of Cases. ........ 20
Prosecution of Cases and Grants of Immunity. ........ 20
DoD Supplemental Guidance - F.6  Joint Investigations. ........ 21
Joint Investigations. ........ 21
GLOSSARY ........ 22
G.1.  Acronyms. ........ 22 G.2.  Definitions. ........ 22
REFERENCES ........ 23
FIGURES
Figure 1. Verbatim Text of the 1984 DOJ/DoD MOU ........ 7

## Section 1:  General Issuance Information 1.1.  Applicability.

This issuance applies to OSD, the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense (IG DoD), the Defense Agencies, the DoD Field Activities, and all other organizational entities within the DoD (referred to collectively in this issuance as the "DoD Components").

## 1.2.  Policy.

It is DoD policy to maintain an effective working relationship with the DOJ in the investigation and prosecution of crimes involving DoD programs, operations, or personnel.

## Section 2:  Responsibilities 2.1.  Ig Dod.

The IG DoD:
a.  Establishes procedures to implement the investigative policies set forth in this issuance.

b.  Monitors compliance by Defense Criminal Investigative Organizations (DCIOs) with the terms of the 1984 DOJ/DoD MOU.

c.  Provides specific guidance regarding investigative matters, as appropriate.

## 2.2.  General Counsel Of The Department Of Defense.

The General Counsel of the Department of Defense:
a.  Establishes procedures to implement the prosecutorial policies set forth in the 1984
DOJ/DoD MOU.  Those policies will be consistent with the Uniform Code of Military Justice (UCMJ), the Manual for Courts-Martial, and the DoD Supplemental Guidance provided in this issuance.

b.  Monitors the DoD Components' compliance with the prosecutorial portions of the 1984
DOJ/DoD MOU.

c.  Provides specific guidance on the investigation and prosecution of those crimes addressed by the 1984 DOJ/DoD MOU, as appropriate.

d.  Modifies the DoD Supplemental Guidance in this issuance with the concurrence of the IG
DoD, after coordination with the affected DoD Components.

## 2.3.  Secretaries Of The Military Departments.

The Secretaries of the Military Departments establish procedures to implement the policies set forth in this issuance.

a.  The policies will encourage commanders of installations in the United States, in coordination with their servicing Military Criminal Investigative Organization, to seek to enter into a MOU with the Office(s) of the U.S. attorney with jurisdiction over the installation.

b.  Such MOUs should address procedures for exercising prosecutorial authority over alleged offenses occurring on the installation that are subject to prosecution in a U.S. district court.

## Section 3:  Inquiries For Which The Doj Has Assumed Investigative Responsibility Based On The 1984 Doj/Dod Mou

For inquiries over which the DOJ has assumed investigative responsibility, based on the 1984 DOJ/DoD MOU, the applicable DCIO should seek to participate jointly with DOJ investigative agencies whenever the inquiries relate to DoD programs, operations, or personnel.  This applies to cases referred to the Federal Bureau of Investigation (FBI) under Paragraph C.1.a of the 1984 DOJ/DoD MOU as well as to those cases for which a DOJ investigative agency is assigned primary investigative responsibility by a DOJ prosecutor.

## Section 4:  Dod Supplemental Guidance To The 1984 Doj/Dod Mou

This section contains DoD Supplemental Guidance.  DoD Components will comply with the 1984 DOJ/DoD MOU and the DoD Supplemental Guidance. Figure 1 provides the verbatim text of the 1984 DOJ/DoD MOU:

## Dod Supplemental Guidance - B.  Policy.

The 1984 DOJ/DoD MOU references a 2-year statute of limitations then in effect for most UCMJ offenses.  Article 43 of the UCMJSection 843 of Title 10, United States Code
(U.S.C.)governing the statute of limitations, has been amended several times since the 1984 DOJ/DoD MOU was issued.  Article 43 now applies a 5-year statute of limitations generally; a longer statute of limitations for prescribed child abuse offenses; and no statute of limitations for capital offenses, rape or sexual assault, or rape or sexual assault of a child.  Article 43 also provides for the extension of the statute of limitations in certain prescribed scenarios.  It is important to complete investigations, administrative actions, and prosecutions in a timely manner notwithstanding a lengthier statute of limitations.

## Dod Supplemental Guidance - C.  Investigative And Prosecutive Jurisdiction.


1.  Crimes Arising from DoD Operations.


a.  Corruption Involving DoD Personnel.
  A.  Certain bribery and conflict of interest allegations (also referred to as "corruption"
offenses in the 1984 DOJ/DoD MOU) are to be referred immediately to the FBI.

  B.  For the purposes of this section, bribery and conflict of interest allegations are those which would, if proven, violate Sections 201, 203, 205, 208, 209, or 219 of Title 18, U.S.C.

  C.  Under Paragraph C.1.a of the 1984 DOJ/DoD MOU, DCIOs will refer to the FBI
those "significant" allegations of bribery and conflict of interest that directly implicate military or DoD civilian personnel, including allegations of bribery or conflict of interest that arise during the course of an ongoing investigation.



1.  All bribery and conflict of interest allegations against present, retired, or former general/flag officers and civilians in positions above the GS-15 and equivalent levels, the Senior Executive Service, and the Executive Level will be considered "significant" for purposes of referral to the FBI.



2.  In cases not covered by subsection C.1 of this supplemental guidance, the determination of whether the matter is "significant" for purposes of referral to the FBI should be made in light of the following factors: sensitivity of the DoD program involved, amount of money in the alleged bribe, number of DoD personnel implicated, impact on the affected DoD program, and, with respect to military personnel, whether the matter normally would be handled under the UCMJ.  Bribery and conflict of interest allegations warranting consideration of federal prosecution, not referred to the FBI based on the application of these guidelines and not otherwise disposed of under the UCMJ, will be developed and brought to the attention of the DOJ through the "conference" mechanism described in Paragraph C.1.b of the 1984 DOJ/DoD MOU.

  D.  Bribery and conflict of interest allegations when military or DoD civilian personnel are not subjects of the investigations are not covered by the referral requirement of Paragraph C.1.a of the 1984 DOJ/DoD MOU.  Matters in which the suspects are solely DoD contractors and their subcontractors (e.g., commercial bribery between a DoD subcontractor and a DoD
prime contractor) do not require referral upon receipt to the FBI.  The "conference" procedure described in Paragraph C.1.b of the 1984 DOJ/DoD MOU will be used in these types of cases.

  E.  Bribery and conflict of interest allegations that arise from events occurring outside of the United States and requiring investigation outside of the United States need not be referred to the FBI.

## Dod Supplemental Guidance - C.1.B. Frauds Against The Dod And Theft And Embezzlement Of Government Property.

A.  Unlike Paragraph C.1.a of the 1984 DOJ/DoD MOU, Paragraph C.1.b does not have an automatic referral requirement.  In accordance with Paragraph C.1.b, DCIOs will confer with the appropriate federal prosecutor and the FBI on matters which, if developed by investigation, would warrant federal prosecution.  This "conference" serves to define the respective roles of DCIOs and the FBI on a case-by-case basis.  Generally, when a conference is warranted, the DCIO will arrange to meet with the prosecutor and provide notice to the FBI that such a meeting is being held.  Separate conferences with both the prosecutor and the FBI are not normally necessary.

B.  Mere receipt by DCIOs of raw allegations of fraud or theft does not require conferences with federal prosecutors or the FBI.  Sufficient evidence should be developed before the conference to allow the prosecutor to make an informed judgment as to the merits of a case dependent upon further investigation.  However, DCIOs should avoid delay in scheduling such conferences, particularly in complex fraud cases, because an early judgment by a prosecutor can be of assistance in focusing the investigation on those matters that most likely will result in criminal prosecution.

## Dod Supplemental Guidance - C.2.  Crimes Committed On Military Installations.

A.  Subsection C.2 of the 1984 DOJ/DoD MOU addresses crimes committed on a military installation other than those listed in Paragraphs C.1.a (i.e., bribery and conflict of interest) and C.1.b (i.e., fraud, theft, and embezzlement against the government).
B.  Unlike Paragraph C.1.a of the 1984 DOJ/DoD MOU, which requires "referral" to the FBI
of certain cases, and Paragraph C.1.b, which requires a "conference" with respect to certain cases, subsection C.2 only requires that "notice" be given to the DOJ of certain cases.  Relief from the reporting requirement of subsection C.2 may be granted by the local U.S. attorney as to types or classes of cases.
C.  For the purposes of Paragraph C.2.a (when the subjects can be tried by court-martial or are unknown), an allegation is "significant" for purposes of required notice to the DOJ only if the offense falls within the prosecutorial guidelines of the local U.S. attorney.  Judge advocates advising commanders of military installations in the United States and DCIO offices in the United States should familiarize themselves with the local U.S. attorney's office's prosecutorial guidelines.  Notice should be given in other cases when the DoD Component believes that federal prosecution is warranted or otherwise determines that the case may attract significant public attention.

## Dod Supplemental Guidance - C.3.  Crimes Committed Outside Military Installations By Persons Who Can Be Tried By Court- Martial.

For purposes of this paragraph, an allegation is "significant" for purposes of required notice to the DOJ only if the offense falls within prosecutorial guidelines of the local U.S. attorney.
Notice should be given in other cases when the DoD Component believes that federal prosecution is warranted, or otherwise determines that the case may attract significant public attention.

## Dod Supplemental Guidance - E.  Prosecution Of Cases. Prosecution Of Cases And Grants Of Immunity.

A.  The authority of court-martial convening authorities to refer cases to trial, approve plea agreements, and issue grants of immunity under the UCMJ extends only to trials by courtmartial.  To ensure such actions do not preclude appropriate action by federal civilian authorities in cases likely to be prosecuted in the U.S. district courts, court-martial convening authorities will ensure appropriate consultation has taken place before trial by court-martial, approval of a plea agreement, or issuance of a grant of immunity in cases for which such consultation is required.

B.  There are two types of immunity in the military justice system.

1.  A person may be granted transactional immunity from trial by court-martial for one or more offenses under the UCMJ.

2.  A person may be granted testimonial immunity, which is immunity from the use of testimony, statements, and any information directly or indirectly derived from such testimony or statements by that person in a later court-martial.

C.  Before issuing a grant of immunity under the UCMJ, the applicable court-martial convening authority will ensure that there has been appropriate consultation with the DOJ with respect to offenses for which consultation is required by the 1984 DOJ/DoD MOU.

D.  A proposed grant of immunity in a case involving espionage, subversion, aiding the enemy, sabotage, spying, or violation of rules or statutes concerning classified information or U.S. foreign relations will be forwarded to the General Counsel of the Department of Defense for the purpose of consultation with the DOJ.  The General Counsel of the Department of Defense will obtain the views of other appropriate elements of the DoD that should be considered during consultation with the DOJ.

E.  The authority of court-martial convening authorities extends only to grants of immunity from action under the UCMJ.  Only the Attorney General of the United States, or other authorities designated under Sections 6001-6005 of Title 18, U.S.C., may authorize action to obtain a grant of immunity with respect to trials in the U.S. district courts.

## Dod Supplemental Guidance - F.6  Joint Investigations.

Joint Investigations.

When DoD procedures concerning apprehension, search and seizure, interrogation, eyewitnesses, or identification differ from those of the DOJ, DoD procedures will be used, unless the DOJ prosecutor has directed that DOJ procedures be used instead.  DCIO criminal investigators should bring to the attention of the DOJ prosecutor, as appropriate, situations when the use of DOJ procedures might impede or preclude prosecution under the UCMJ.

## Glossary G.1.  Acronyms.

ACRONYM
MEANING
DCIO
Defense Criminal Investigative Organization
DOJ
Department of Justice
FBI
Federal Bureau of Investigation
IG DoD

Inspector General of the Department of Defense

MOU
memorandum of understanding
UCMJ
Uniform Code of Military Justice
U.S.C.
United States Code

## G.2.  Definitions.

This term and its definition is for the purpose of this issuance.

TERM
DEFINITION
DCIOs
The U.S. Army Criminal Investigation Command; Naval Criminal Investigative Service; U.S. Air Force Office of Special Investigations; and Defense Criminal Investigative Service, Office of the IG DoD.


## References

DoD Directive 5106.01, "Inspector General of the Department of Defense (IG DoD)," April 20,
2012, as amended
DoD Directive 5145.01, "General Counsel of the Department of Defense (GC DoD),"
December 2, 2013, as amended
Manual for Courts-Martial, United States, current edition Memorandum of Understanding Between the Department of Justice and the Department of
Defense, August 1984
United States Code, Title 10, Chapter 47 (also known as "The Uniform Code of Military Justice
(UCMJ)")
United States Code, Title 18