January – March 2012 

Perspectives 1

MG David A. Rubenstein; COL Mustapha Debboun; Richard Burton 

14 Principles of Ethical Conduct in Practice 5

COL Jonathan A. Kent; MAJ Joseph B. Topinka 

Legal Fundamentals of Contracting for Healthcare 10

Kim K. Judd, JD 

Roadmap for Dealing with Contractor Employees 13

Kathleen Post, JD 

Have You Made an Unauthorized Commitment Lately? 15

Lt Col (Ret) Eugene J. Smith, USAF

Fiscal Law Overview 25

CPT Juan Lozada-Leoni; Maurice A. Deaver, Jr, JD; MAJ Joseph B. Topinka 

Transitioning Third Party Collections from Third World Processes 30

Jackey C. Nichols, JD 

Expanding Use of Technology Transfer Mechanisms 32 

Within the Army’s Medical Treatment Facilities 

Robert L. Charles, JD 

Social Media: Some Things to Consider 37 

Before Creating an Online Presence 

CPT Adam Jonasz 

Army Medical Training Agreements 47

Maurice A. Deaver, Jr, JD; Kendra J. Harris 

Affiliation Agreements 55

David W. Claypool, JD 

Public Health Emergency Law: 58 

A Primer for Leaders and Managers in the Military 

MAJ Joseph B. Topinka; Ida Agamy, JD 

Army Paralegals and Paralegal Specialists 65

MSG Christopher Chouinard 

Ethics, contracts, Procurement, and More 

for healthcare professionals: 

The legal challenges, risks, and solutions 
LTG Patricia D. Horoho 

The Surgeon General 

Commander, US Army Medical Command 

MG David A. Rubenstein 

Commanding General 

US Army Medical Department Center & School 

January – March 2012 The Army Medical Department Center & School PB 8-12-1/2/3 

Online issues of the AMEDD Journal are available at http://www.cs.amedd.army.mil/amedd_journal.aspx 

A Professional Publication 

of the AMEDD Community 

The Army Medical Department Journal [ISSN 1524-0436] is published quarterly for 

The Surgeon General by the US Army Medical Dept Center & School, Journal Office, AHS 

CDD Bldg 4011, 2377 Greeley RD STE T, Fort Sam Houston, TX 78234-7584. 

Articles published in The Army Medical Department Journal are listed and indexed in 

MEDLINE, the National Library of Medicine’s premier bibliographic database of life 

sciences and biomedical information. As such, the Journal’s articles are readily 

accessible to researchers and scholars throughout the global scientific and academic 

communities. 

CORRESPONDENCE: Manuscripts, photographs, official unit requests to receive 

copies, and unit address changes or deletions should be sent to the Journal at the 

above address. Telephone: (210) 221-6301, DSN 471-6301 

DISCLAIMER: The AMEDD Journal presents clinical and nonclinical professional 

information to expand knowledge of domestic & international military medical issues 

and technological advances; promote collaborative partnerships among Services, 

components, Corps, and specialties; convey clinical and health service support 

information; and provide a peer-reviewed, high quality, print medium to encourage 

dialogue concerning healthcare initiatives. 

Appearance or use of a commercial product name in an article published in the 

AMEDD Journal does not imply endorsement by the US Government. 

Views expressed are those of the author(s) and do not necessarily reflect official US 

Army or US Army Medical Department positions, nor does the content change or 

supersede information in other Army Publications. The AMEDD Journal reserves the 

right to edit all material submitted for publication (see inside back cover). 

CONTENT: Content of this publication is not copyright protected. Material may be 

reprinted if credit is given to the author(s). 

OFFICIAL DISTRIBUTION: This publication is targeted to US Army Medical 

Department units and organizations, and other members of the medical community 

worldwide. 

By Order of the Secretary of the Army: 

Official: 

1128505 

RAYMOND T. ODIERNO 

General, United States Army 

Chief of Staff

DISTRIBUTION: Special 

Administrative Assistant to the 

Secretary of the Army 

JOYCE E. MORROW 

© George Lamson and Studio E, printed with permission. The AMEDD

Journal is proud to present his artwork specially created for this issue.
 January – March 2012 1

Two years ago, the January-March 2010 issue of the 

AMEDD Journal highlighted important legal considerations across a number of areas of military medicine. The 

articles in that issue were provided by the legal professionals of the Army Judge Advocate General’s Corps who 

specialize in supporting the Army Medical Department. 

Those articles undoubtedly reacquainted many Army 

medical professionals with the enormous legal complexities that surround the practice of medicine, whether military or civilian, and reminded us of the valuable support 

provided by the Army JAG Corps. These legal specialists, including attorneys, paralegals, and administrators, 

provide the counsel, assistance, guidance, and yes, sometimes intervention, that make it possible for those of us in 

the practice of military medicine to do what we should do 

best, care for the health and well-being of our Soldiers, 

their Families, and military retirees.

The articles in that issue focused primarily on legal considerations directly related to the practice of medicine, 

such as consent to treatment, risk management, human 

subject research, and off-duty employment. It was so 

well received that the Army Medical Command Staff 

Judge Advocate was asked for more published discussions of the legal aspects of military medicine. In response, MAJ Joseph Topinka, the Deputy Staff Judge 

Advocate, has assembled another excellent collection of 

articles addressing additional vitally important areas of 

military healthcare delivery, including ethics, contracting, fi scal law, and agreements with civilian agencies 

and institutions. While, on the surface, some of those 

topics may appear to clinical practitioners to be someone else’s problems, the articles in this AMEDD Journal

illustrate the absolute folly of that idea. Every single day 

Army medical professionals have interactions involving 

contractors, funding, and procurement, just to name a 

few of the areas that may not seem to be of great concern 

in their daily activities. Unfortunately, an uninformed 

decision, a misguided involvement, or an incorrectly 

framed agreement can have serious ramifi cations, not 

only to an individual, but sometimes to an organization 

or to the mission of healthcare delivery itself.

Clearly, the practice of medicine is an intense, extremely complex responsibility, requiring years of education, 

training, and experience to achieve the necessary levels 

of competence and skills. Sadly, medical professionals 

must also cope with an extraordinarily complicated, 

exhaustively regulated, and highly litigious societal environment which affects virtually every aspect of their 

vocation. Fortunately for those of us in Army medicine, 

our partners in the MEDCOM Staff Judge Advocate are 

there to specifi cally help navigate that byzantine world 

of laws, regulations, rules, protocols, and restrictions as 

advisers, advocates, and sometimes defenders. Those 

legal professionals have also committed themselves to 

years of education, training, and experience to achieve 

their positions in the practice of law. They represent 

an invaluable resource that is absolutely necessary for 

AMEDD’s primary mission to maintain a healthy, sustainable, combat-ready fi ghting force. Simply stated, we 

could not do it without them.

Perspectives

COMMANDER’S INTRODUCTION

MG David A. Rubenstein

EDITORS’ PERSPECTIVE

The foundation for any successful free society which is 

based on the rule of law is the ethical conduct of its members, and, more signifi cantly, its leaders. A free society 

cannot be long maintained when individuals and groups 

disregard the communal standards of fairness and morality, placing their own benefi t above all else. Unfortunately, in human society, that type of conduct is expected, and laws, rules, and regulations are implemented 

in an effort to establish an artifi cial conscience among 

those so inclined. Ethical conduct has been the subject 

of discussions and writings since humans began living 

together in structured societies, and great philosophers 

and ethicists have endlessly pondered its successes and 

failures. In their article, COL Jonathan Kent and MAJ 

Joseph Topinka explain the concept of expected ethical conduct among those in government service using 

14 common sense principles. These clearly defi ned and 

explained principles appear to be obvious, not requiring 

an understanding of anything more than simple decency 

and respect for others in the society in which we live. 

However, the reader will quickly recognize how many of 

these principles are constantly violated, or “bent” to the 

benefi t of the violator. The article cites the various laws 

and military regulations that attempt to institutionalize 

expected behavior at the risk of penalty, but, as arrests 

and convictions all too regularly demonstrate, even the 
2 http://www.cs.amedd.army.mil/amedd_journal.aspx

prospect of such penalty does not deter certain individuals in government service from unethical, illegal activity. This article is an easily understood, comprehensive 

outline of what is expected, and ultimately demanded, 

of those holding the public trust, and should be required 

reading at regular intervals throughout a government 

career.

In the course of the normally very demanding work 

days, leaders in supervisory positions in military medical facilities are very happy to have a capable, functioning team to perform the functions and/or provide the 

services for which they are responsible. However, those 

same leaders, especially the less experienced, may also 

not completely understand the signifi cant difference of 

their relationship with contractor personnel as opposed 

to that with military personnel and civilian government 

employees. After all, throughout a military career, leaders receive extensive training focusing on the unit/team 

perspective, a military unit must be cohesive and uniform, especially in the treatment of its members. A leader may therefore unwittingly—perhaps refl exively—

deal with contractor employees as though they are no 

different from anyone else, which could be problematic, 

perhaps signifi cantly so. Kim Judd and Kathleen Post 

have contributed two articles that clearly explain the basics in the contractor employee status from a contractual 

(legal) perspective. While contractor employees usually 

function seamlessly as fully integrated members of the 

team in the performance of their duties, that is where the 

similarity ends. Mr Judd’s article focuses on the mechanism of the contracting process, and how that establishes the legal structure within which the contractor employees perform their functions. His explanation is key 

to understanding why and how their status is different 

and requires a different approach to both working and 

management interactions. Ms Post’s article deals with 

the specifi cs of that relationship within the work environment, a concise, clearly presented discussion of the 

necessary perspective that government employees must 

maintain in their dealings with contractor personnel.

Lt Col (Ret) Eugene Smith’s article addresses another 

surprisingly common problem involving MEDCOM 

contracts. Unauthorized commitments for goods or services by military personnel or government employees 

would seem to be an obvious and avoidable occurrence, 

but such is apparently not the case. As clearly explained 

in the article, unauthorized commitments occur for a 

number of reasons, under a variety of circumstances. 

Further, from a legal perspective, it is a complicated 

problem because all of the situations, circumstances, participants, and other conditions must be defi ned 

so that each occurrence can be evaluated within the 

framework of the contract and those legal defi nitions. 

This is necessary because the contractor/vendor wants 

to be paid for the product or service provided, and the 

government must determine if it, or someone else, is legally obligated to make that payment. Lt Col (Ret) Smith 

carefully develops different aspects of the problem with 

understandable explanations and illustrative scenarios, 

carefully and thoroughly referencing key points as the 

legal bases for his discussion. This is an excellent look 

at an important problem which is not understood well 

enough by military and government personnel. Hopefully this article will become standard reading for all 

AMEDD personnel, especially those in leadership and 

supervisory positions involving contact (by them and/or 

their subordinates) with contractors and vendors.

Obviously, operating the federal government costs 

money, and that money must be obtained, distributed 

to those who will use it, and spent to keep the government “open.” CPT Juan Lozada-Leoni and his coauthors 

capture the distribution and use aspect of that function 

quite succinctly in the opening paragraph of their article 

in a single sentence: “Fiscal law is the body of law that 

governs the availability and use of federal funds.” That 

is a concise defi nition of a very complex structure of 

laws, rules, regulations, procedures, and responsibilities that govern the entire process of deciding how much 

money will be spent, and specifying how that happens. 

Their article is a comprehensive look at the US federal 

appropriation process, providing insight into the evolving foundational legal requirements which have driven 

the development of fi scal law as the complexity of operating the government has dramatically increased. CPT 

Lozada-Leoni et al have successfully distilled this abstruse process into a well-organized, easy-to-understand 

primer that allows the reader to grasp both its scope and 

necessity. While it may not relieve the confusion and 

frustration that we often experience as we work with the 

fi nances of making AMEDD operate, this article puts 

the complexity and requirements into context, and, at 

the least, provides understanding of the reasons for the 

existence of the procedures and protocols that we must 

use.

It may come as a surprise to lean that not all of the fi nancial responsibilities of operating military healthcare involve expenditure of funds. As Jackey Nichols describes 

in his informative and interesting article, the DoD has 

the authority to bill insurance companies who provide 

healthcare coverage to nonactive-duty benefi ciaries who 

receive care in a military medical facility. That is the 

good news. The not-so-good news is that over the 20 

years that the collection authority has existed, the billing 

process has fallen woefully behind the industry norm, 

PERSPECTIVES
 January – March 2012 3

THE ARMY MEDICAL DEPARTMENT JOURNAL

including little to no automated capabilities to generate 

and follow invoices, responses, and payments. Mr Nichols does, however, project improvements in this area, 

with the attendant reduction in redundancy, time, and 

cost in obtaining payments for services rendered from 

obligated insurance carriers, just as civilian treatment 

facilities do every single day.

Army medicine strongly encourages its professionals to 

explore their interests and engage in research and development projects in the course of their career progression. However, most projects of signifi cant scope usually 

cannot be prosecuted using the resources available at a 

single facility, even a major medical treatment facility. 

So, in order to avail themselves of other resources, participants will pursue collaborative relationships with 

professionals at other locations, often in other agencies 

of the government or in the civilian world, who can provide the needed expertise and resources for the project 

to continue. This is where the legal aspects of such collaborations become important. In his well-developed 

and clearly presented article, Robert Charles explains 

the various types of agreements that are necessary to allow the transfer of technology between entities, whether 

within the Army, DoD, other US government agencies, 

or even to civilian, including commercial, activities. 

Such agreements are absolutely necessary to ensure that 

the government’s rights to the property involved in the 

project, both physical and intellectual, are protected. 

Such agreements can specify the sharing of technology 

with commercial activities to allow them to further pursue its development, to both their benefi t and that of the 

government. This article is an overview of a dynamic, 

complex area of military medicine within which leadership by the legal professionals is absolutely critical.

Social media is an ubiquitous fact of modern life. The 

potential problems of irresponsible use by individual 

military personnel and civilian government employees have long been recognized and are continually addressed. However, there is another side of social media 

within the government that can be valuable in a number of ways, but presents its own set of concerns. CPT 

Adam Jonasz has contributed an article that discusses 

the use of social media by Army commands at literally 

all levels, detailing the many setup, management, and 

maintenance considerations; the regulations; and the 

procedures that must be addressed prior to implementing an offi cial organizational presence among the social 

media sources. He carefully details the regulatory structure that governs use of the media, and describes the 

types of sites, the advantages and disadvantages, and the 

specifi c legal considerations that must be included in the 

decision process before and after the decision is made 

to establish a presence. This article is contains very important, timely information that is highly relevant for 

today’s AMEDD and MEDCOM leaders at all levels. It 

should be the among the fi rst documents read when the 

pros and cons of establishing a social media presence 

are discussed.

Professional education programs available to Army 

healthcare providers are a very important component in 

the development of well-rounded, highly competent, experienced practitioners. Among the most productive of 

these programs are those in which civilian and military 

medical facilities allow each other’s providers to train at 

the respective facilities. This training expands the skills 

of those providers, as well as those with whom they 

work, as they bring different experiences, skills, and 

perspectives to the practice of medicine, which fosters 

confi dence and enthusiasm. However, notwithstanding 

the benefi ts of this process of “provider exchange tours,” 

it has historically presented a serious legal concern for 

the Army: liability coverage for the provider working 

in the nonmilitary facility. In his very important and 

timely article, Maurice Deaver carefully lays out the parameters of that problem, and chronicles the evolution of 

DoD’s efforts to suffi ciently address the legal exposure 

to the provider trainee. He clearly explains the conditions and criteria for placing a military provider in a 

given civilian medical facility, and, most important, the 

necessary language in the medical training agreement 

that must be in place before any provider may work in 

that facility. The government’s specifi c, virtually infl exible conditions regarding liability protection must be 

accepted by the civilian institution, or the agreement 

never happens. Those conditions are contained in two 

forms which were developed by MEDCOM and approved by the Department of Justice. Mr Deaver details 

those forms, their respective contents and applicability 

to the situation that the agreement must address. This 

article provides an easily understood ready reference for 

leaders in military medical facilities who are exploring 

training arrangements with civilian institutions.

David Claypool’s article examines another type of nongovernment, noncontractor worker that is sometimes 

present in military healthcare facilities, the “student 

volunteer.” These are students at accredited educational 

institutions who are working at a military medical facility as part of their medical education. Similar to the 

medical training agreements discussed in Mr Deaver’s 

article, the placement of students in our facilities has 

strict criteria and conditions which must be met, and a 

carefully designed memorandum of agreement (which 

institutes the affi liation agreement) between the Army 

and the student’s educational facility must be executed. 
4 http://www.cs.amedd.army.mil/amedd_journal.aspx

Mr Claypool clearly and succinctly describes the parameters of such arrangements, how they can be initiated, 

and the regulatory limitations the government places 

on use of student volunteers. As with other articles in 

this AMEDD Journal, this article is an excellent primer 

on how to establish such arrangements, which, among 

other things, can be a valuable way to stimulate interest in Army medicine among aspiring, future medical 

professionals.

Natural and (unfortunately) man-made disasters are all 

too common occurrences throughout the world, and of 

course the United States is by no means exempt. We 

are familiar with the news reports chronicling the occurrence of the disaster, and the initiation of the relief 

efforts from many sources, including the federal government, frequently including the use of the military, especially military medical resources. Often it may seem 

that the response “just happens,” but as MAJ Joseph 

Topinka and Ida Agamy explain in their illuminating, 

very informative article, the commitment and use of federal resources in response to such emergencies are very 

closely governed and specifi cally structured by federal 

laws and implementing policies. The article details the 

Secretary of Health and Human Services public health 

declaration that initiates the federal medical response to 

the medical needs of a disaster, the liability considerations of responding healthcare workers, and the more 

serious aspects of such situations, such as isolation and 

quarantine. The military’s participation in relief efforts 

is governed by DoD regulations, and is designed to initially provide support as needed by other agencies, unless the scope of the disaster and/or the security situation exceeds the capability of other agencies to organize and control. The article addresses the signifi cant 

considerations surrounding US military involvement in 

overseas disasters, which is exponentially more complex 

than domestic responses. This is another excellent, important article that should be a handy reference for US 

military medical commanders and leaders who may be 

called upon to respond to such emergencies.

MSG Christopher Chouinard closes this issue of the 

AMEDD Journal with an article that gives long overdue recognition to a vital, yet largely unknown resource 

within the Army Medical Command. The Staff Judge 

Advocate’s offi ce is obviously populated with talented, 

capable lawyers who provide the counsel, advice, and 

guidance we need it to perform our jobs (whether we 

know it or not), but the SJA also has a number of energetic, dedicated, highly skilled paralegals and paralegal specialists who do much of the detailed, “dirty” 

work in support of the attorneys. However, they can also 

provide direct assistance to those requiring research, 

documentation, correct forms, and referrals to other 

resources that can provide further assistance. As MSG 

Chouinard writes, perhaps your fi rst step in addressing 

a legal matter should be “call your paralegal.” You may 

fi nd the answer you need more quickly and easily than 

you imagined.

PERSPECTIVES

Articles published in the Army Medical Department Journal are indexed in 

MEDLINE, the National Library of Medicine’s (NLM’s) bibliographic database 

of life sciences and biomedical information. Inclusion in the MEDLINE database 

ensures that citations to AMEDD Journal content will be identifi ed to researchers 

during searches for relevant information using any of several bibliographic search 

tools, including the NLM’s PubMed service.
 January – March 2012 5

INTRODUCTION

This article was prepared as a tool for readers to remember the Standards of Ethical Conduct through the use of 

the 14 Principles of Ethical Conduct set forth in 1989 by 

Executive Order 126741

 (shown on the following page). 

In our experience, if you adhere to these basic principles, 

you will always be on solid ground when it comes to the 

Joint Ethics Regulation.

2

 Of course, you should contact 

your local ethics counselor if you have any questions.

DO NOT USE PUBLIC OFFICE FOR PRIVATE GAIN

Your service to the government takes priority over your 

own private interest. You can never use your government 

job to benefi t your private interests. As military personnel 

and Department of Defense (DoD) employees, we work 

to further the best interests of the military, not ourselves.

For example, a program director for a government agency cannot use his or her position at a military installation to award payments from the government to himself 

or herself or his or her family. According to the Encyclopedia of Ethical Failure3

 published by the DoD Offi ce of 

General Counsel’s Standards of Conduct Offi ce, a program administrator participated in such a practice:

by awarding projects to two contractors who in turn 

hired the employee’s personal business enterprise and 

his daughter as subcontractors. Over the course of 3 

years, they received over $800,000 in fees from the 

government; the only catch, neither the employee’s 

personal business nor his daughter actually performed 

any services for the government at all. Aside from the 

obvious fraud to which the former employee, his wife, 

and his daughter pled guilty, federal law also prohibits 

federal employees from making decisions concerning 

matters in which they or their family members have 

a personal fi nancial interest. Even if the former GSA 

[General Services Administration] employee and his 

daughter had actually rendered the services that they 

billed for, the former employee would still have been in 

violation of federal law by awarding the projects to the 

contractors in the fi rst place because his own fi nancial 

interests were involved. The former GSA employee and 

his family were ordered to pay over $800,000 in restitution, and they each received prison sentences ranging 

from 12 to 46 months.3(p38)

PUBLIC SERVICE IS A PUBLIC TRUST. PUT

LOYALTY TO THE CONSTITUTION, THE LAWS, AND

ETHICAL PRINCIPLES ABOVE PRIVATE GAIN

This principle really goes to what taxpayers expect of 

their government employees. We are all taxpayers and 

should ask ourselves what we would think of our conduct 

if looking at ourselves as taxpayers from the outside. Remember that perception is often a reality for those that 

see our conduct as government employees from outside 

federal service. You need to ask yourself whether your 

conduct on any given action fulfi lls the trust given to 

you by your fellow citizen taxpayers who expect you to 

adhere to the standards under the law and regulations.

DO NOT HOLD FINANCIAL INTERESTS THAT CONFLICT

WITH THE HONEST PERFORMANCE OF YOUR DUTY

A government employee’s personal fi nancial interests 

should never create a confl ict of interest for the employee in regard to what that employee does in his or her offi cial capacity. That is not to say a government employee 

cannot invest or even have a small business on the side. 

However, any personal fi nancial interest cannot be in 

confl ict with the employee’s daily duties.

As a result of potential confl icts of interest, the federal 

government has a fi nancial reporting process. Each year 

many employees fi nd themselves completing an Executive 

Branch Confi dential Financial Disclosure Report (Offi ce 

of Government Ethics (OGE) Form 450: http://www.ogc.

doc.gov/pdfs/OGE_Form_450.pdf). General offi cers and 

senior executive service (SES) employees must fi ll out 

a similar form designated the OGE 278 (http://www.us

ge.gov/Forms-Library/OGE-Form-278--Public-Finan

cial-Disclosure-Report/). The process of completing 

these forms ensures the integrity of the system.

DO NOT USEOR ALLOW THE USEOF GOVERNMENT

INFORMATION NOT RELEASED TO THE PUBLIC TO

FURTHER ANY PRIVATE INTEREST

Information is very powerful in today’s world of information sharing. Proprietary information that is controlled by the government is very valuable to outside 

parties who may want to get an edge over other organizations for procurement, or infl uence, or inappropriate 

14 Principles of Ethical Conduct in Practice

COL Jonathan A. Kent, JAG, USA

MAJ Joseph B. Topinka, JAG, USA
6 http://www.cs.amedd.army.mil/amedd_journal.aspx

involvement in government operations. A government 

employee is expected to safeguard that information.

This rule is very signifi cant for the federal procurement 

process. Protected information can give an invaluable 

edge to one potential contractor over another during the 

bidding process for a government contract. In addition, 

with the workforce consisting of more and more contractors, the US Army Medical Command (MEDCOM) 

has gone to great lengths to ensure that there is “arm’s 

length” between government employees and contractor 

employees through the implementation of MEDCOM 

Regulation 715-3.

4

 This regulation specifi cally entrusts 

MEDCOM employees to protect procurement-sensitive 

information from unauthorized disclosure or compromise. Such information includes but is not limited to 

budget matters, strategic planning, short term and midterm plans, other contractor’s proprietary information, 

and any other information that could be used to gain a 

competitive advantage.

14 PRINCIPLES OF ETHICAL CONDUCT IN PRACTICE

CODE OF ETHICS

Principles of Ethical Conduct for

Government Officers and Employees

1. Public service is a public trust, requiring employees to place 

loyalty to the Constitution, the laws, and ethical principles 

above private gain.

2. Employees shall not hold financial interests that conflict 

with the conscientious performance of duty.

3. Employees shall not engage in financial transactions using 

nonpublic Government information or allow the improper use 

of such information to further any private interest.

 4. An employee shall not, except pursuant to such reasonable 

exceptions as are provided by regulation, solicit or accept 

any gift or other item of monetary value from any person or 

entity seeking official action from, doing business with, or 

conducting, activities regulated by the employee’s agency, or 

whose interests may be substantially affected by the 

performance or nonperformance of the employee’s duties.

5. Employees shall put forth honest effort in the performance 

of their duties.

6. Employees shall make no unauthorized commitments or 

promises of any kind purporting to bind the Government.

7. Employees shall not use public office for private gain.

18. Employees shall act impartially and not give preferential 

treatment to any private organization or individual.

19. Employees shall protect and conserve Federal property and 

shall not use it for other than authorized activities.

10. Employees shall not engage in outside employment or 

activities, including seeking or negotiating for 

employment, that conflict with official Government 

duties and responsibilities.

11. Employees shall disclose waste, fraud, abuse, and 

corruption to appropriate authorities.

12. Employees shall satisfy in good faith their obligations as 

citizens, including all just financial obligations, especially 

those—such as Federal, State, or local taxes—that are 

imposed by law.

13. Employees shall adhere to all laws and regulations that 

provide equal opportunity for all Americans regardless of 

race, color, religion, sex, national origin, age, or handicap.

14. Employees shall endeavor to avoid any actions creating the 

appearance that they are violating the law or the ethical 

standards promulgated pursuant to this order.

U.S. OFFICE OF GOVERNMENT ETHICS, WASHINGTON, D.C. 20005
 January – March 2012 7

THE ARMY MEDICAL DEPARTMENT JOURNAL

DO NOT SOLICIT OR ACCEPT ANYTHING OF MONETARY

VALUE FROM ANYONE SEEKING OFFICIAL ACTION

FROM DOING BUSINESS WITH, OR CONDUCTING

ACTIVITIES REGULATED BY YOUR AGENCY, OR WHOSE

INTERESTS MAY BE AFFECTED BY THE PERFORMANCE, 

OR NONPERFORMANCE OF YOUR DUTIES

You may never solicit anything in your offi cial position. 

If organizations offer you items of value you should consult with your servicing ethics counselor. Government 

ethics regulations contain specifi c guidelines for giftgiving to avoid situations of bribery or the appearance 

of bribery. When in doubt about whether to accept something or not, consult with your ethics counselor immediately. For MEDCOM employees, ethics advice can be obtained from your supporting legal offi ce, whether within 

the medical facility or command, or through supporting, 

installation-based legal offi ces throughout the Army.

PUT HONEST EFFORT INTO THE

PERFORMANCE OF YOUR DUTIES

The government expects its employees to come to work, 

work hard, work the appropriate hours of the duty day, 

and meet the standards established for employee conduct. The federal government does not hide anything 

and presents its expectations up front when an employee 

is hired.

PROTECT AND CONSERVE FEDERAL PROPERTY, 

USE IT ONLY FOR AUTHORIZED ACTIVITIES

The taxpaying citizens of this country expect government employees to be good stewards of the equipment, 

services, and property that the government provides for 

their use to fulfi ll their offi cial duties. These resources 

should be used properly for offi cial purposes and should 

not be wasted or stolen.

ACT IMPARTIALLY AND DO NOT GIVE PREFERENTIAL

TREATMENT TO ANY PRIVATE ORGANIZATION OR INDIVIDUAL

There are literally hundreds of organizations in the 

country that support Soldiers, their Families, and members of the US military. These organizations often do 

great things for us. However, these organizations are 

nonfederal entities and we must be always vigilant in 

our dealings with them. We cannot give one an unfair 

advantage over another.

For example, in one incident, 7 senior military offi cers, 

including 4 general offi cers, were found to have misused 

their positions, improperly implying DoD endorsement 

or support of a nonfederal entity while appearing in a 

promotional video for a private organization. Two SES 

government employees who appeared in the video without title and whose comments did not create the appearance of DoD sanction were found to have properly participated in their personal capacity. The military offi cers, 

however, were found to have violated the Joint Ethics 

Regulation2

 in that they were in uniform and displaying 

their rank as they discussed their private affi liation.

In the Army Medical Command, our dealings take on 

signifi cant importance as many organizations and individuals wish to donate gifts to Soldiers and Army medicine. We must always be careful about accepting gifts 

from outside sources even if the gifts on their face appear to be needed, and the gesture is kind and thoughtful. 

The MEDCOM published MEDCOM Regulation 1-46

which applies to gift acceptance from outside sources. 

In accepting gifts, members of this command must 

ensure that we do so properly and do not give the impression that, by the acceptance of a gift, we give some 

special status or endorsement to the organization of the 

individual making the donation.

DO NOT ENGAGE IN OUTSIDE EMPLOYMENT OR

ACTIVITIES, INCLUDING SEEKING OR NEGOTIATION

FOR EMPLOYMENT, THAT CONFLICT WITH OFFICIAL

GOVERNMENT DUTIES AND RESPONSIBILITIES

This principle does not prevent a government employee 

from having an outside job, but it does prevent the employee from working in an outside job that confl icts with 

his or her offi cial government duties. The two cannot 

cross or create a confl ict. When such a confl ict exists, 

the employee must remove the confl ict by either ending 

the outside employment or ending federal service.

Postgovernment employment, negotiating with future 

employers, and off-duty employment are signifi cant issues facing government employees, especially during 

times prior to transition from government service to 

civilian employment. Employees should be mindful of 

confl icts of interest. They also must be cautious about 

the parameters of their authorization to work in a nonfederal capacity. Due to the fact that the Army Medical Command has a signifi cant population of medical 

clinicians that often seek off-duty employment, the 

command developed a regulation specifi cally addressing off-duty employment, primarily for active duty and 

government civilian employee healthcare practitioners: 

Medical Command Regulation 600-3.

7
8 http://www.cs.amedd.army.mil/amedd_journal.aspx

DO NOT MAKE A COMMITMENT OR PROMISE OF

ANY KIND THAT COULD BIND THE GOVERNMENT

IF YOU DON’T HAVE AUTHORITY TO DO SO

Not everyone is legally authorized to enter into agreements or bind the government to a contract, or to spend 

the government’s money on products and services. 

Sometimes government employees think, as a byproduct of their status, that they are, but that is not always 

automatic. Employees must think very seriously about 

what they say or do with regard to nonfederal parties 

when it involves obligating the US Government.

In the Army Medical Command, there is a great concern for such conduct in the procurement environment, 

especially involving interactions with contractors, vendors, or other nongovernmental individuals who provide 

goods and services to the command. As a result, the 

MEDCOM has developed a publication to address these 

commitments, MEDCOM Pamphlet 715-2.

5

 The MEDCOM also has mandatory training for all employees, especially those involved in procurement on unauthorized 

commitments and how to avoid them.

SATISFY YOUR OBLIGATION AS A CITIZEN, 

INCLUDING ALL JUST FINANCIAL OBLIGATIONS, 

ESPECIALLY THOSE THAT ARE IMPOSED BY LAW, 

SUCH AS FEDERAL, STATE AND LOCAL TAXES

Federal employees are citizens of the United States, and 

they have responsibilities as citizens to follow the law 

and pay their fi nancial obligations. They should act appropriately in their personal capacity, just as they act 

appropriately in their offi cial capacity as government 

employees. Their conduct in their personal capacity can 

actually impact their personal and offi cial capacity.

DISCLOSE WASTE, FRAUD, MISMANAGEMENT, AND

CORRUPTION TO APPROPRIATE AUTHORITIES

This principle addresses the need for employee feedback 

in regard to the operation of our government. Leaders in 

the government must be open to the input of employees, 

and employees should have the freedom to communicate their feedback on potentially inappropriate activities that they observe in the operation of the government. 

Ideally, employees should be able to provide input or 

complain at the lowest level possible, but that is not always the case. Therefore, it is DoD policy that no person 

shall restrict a member of the armed forces from making 

lawful communications to a member of Congress or an 

inspector general.

Members of the armed forces shall be free from reprisal for making or preparing to make a protected communication which includes information that the member 

reasonably believes evidences a violation of law or regulation, including a law or regulation prohibiting sexual 

harassment or unlawful discrimination, gross mismanagement, a gross waste of funds or other resources, an 

abuse of authority, or a substantial and specifi c danger 

to public health or safety. Finally, paragraph 4.4 of DoD 

Directive 7050.06 8

 specifi es that:

No person may take or threaten to take an unfavorable 

personnel action, or withhold or threaten to withhold 

a favorable personnel action, in reprisal against any 

member of the Armed Forces for making or preparing 

to make a protected communication.8(p2)

In other words, the government expects its employees to 

disclose waste, fraud, mismanagement, and corruption 

one way or another, and it offers appropriate protections 

to encourage such disclosure.

FOLLOW ALL LAWS AND REGULATIONS THAT PROVIDE

EQUAL OPPORTUNITYFOR ALL AMERICANS REGARDLESS

OF RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, 

OR HANDICAP

Basically, this principle applies the ethic of reciprocity and focuses on DoD’s leadership role in ensuring 

an equal opportunity, discrimination-free workforce. A 

key element of this rule is that persons attempting to 

live by this rule treat all people with consideration, not 

just members of their in-group. DoD policy is very clear 

in support of this principle. The defense of the nation 

requires a well-trained volunteer force, military and civilian, active and reserve. To provide such a force, DoD 

must ensure the attractiveness of a DoD career, providing opportunities for all DoD personnel to rise to as high 

a level of responsibility as their abilities allow. Therefore, programs or activities conducted by, or that receive 

fi nancial assistance from DoD shall not unlawfully discriminate against individuals on the basis of race, color, 

national origin, sex, religion, age, or disability in accordance with guidance issued by the Departments of Justice, Health and Human Services, and Labor, as well as 

the Small Business Administration.

AVOID ANY ACTIONS CREATINGTHE APPEARANCE THAT

YOU ARE VIOLATING A LAW OR ETHICAL STANDARDS. AVOID THE APPEARANCE OF IMPROPRIETY

The fi nal principle is signifi cant and one that we alluded 

to in the discussion of the second principle. Remember 

14 PRINCIPLES OF ETHICAL CONDUCT IN PRACTICE
 January – March 2012 9

THE ARMY MEDICAL DEPARTMENT JOURNAL

that perception is often a reality for those that see our 

conduct as government employees from outside federal 

service. Even if you are not doing something wrong, 

there may be an appearance of wrong-doing or impropriety. Our experience has been that if you have doubts 

about some conduct, it may be questionable, or at least 

have a questionable appearance to someone looking 

from the outside. When considering that conduct, you 

must really look at the principles as a whole and, if you 

still have doubts, speak to someone else and get their 

perspective or, better yet, consult your ethics attorney. 

If you wish to go through with that conduct, appearance 

aside, you probably should get a written ethics opinion 

for your protection so that you understand the appropriate parameters of your conduct.

Remember that ethics advice is always available and encouraged. The advice does not create an attorney-client 

relationship, but it does help a person walk through an 

appropriate analysis of the ethical issues facing a government employee.

CONCLUSION

In the fi nal analysis, public service is a public trust. To 

protect that trust, it is necessary that government employees uphold the highest ethical standards. DoD employees abide by the standards of ethical principles and 

set a personal example for fellow employees in performing offi cial duties within the highest ethical standards. 

The Ethics in Government Act of 1978,9

 as amended, the 

Offi ce of Government Ethics implementing regulations, 

and the Joint Ethics Regulation2

 are sources of standards 

of ethical conduct and ethics guidance, including direction in the areas of fi nancial and employment disclosures 

and postgovernment-employment rules. Government 

employees fulfi ll the public’s trust when following the 

ethical standards, and the 14 Principles always provide 

a solid ethical ground.

ACKNOWLEDGEMENT

The authors thank Ms Margaret McCord for her vision 

in the preparation of this article.

REFERENCES

1. Executive Order 12674: Principles of Ethical Conduct for Government Offi cers and Employees. 

Washington, DC: Offi ce of the President of the 

United States; April 12, 1989 (modifi ed by EO 

12731, October 17, 1990). Available at: http://www.

doi.gov/ethics/docs/eo12674.html. Accessed November 18, 2011.

2. Department of Defense 5500.7-R: Joint Ethics 

Regulation. Washington, DC: US Dept of Defense; 

1993 w/change 6 March 23, 2006. Available at: 

http://www.defenselink.mil/dodgc/defense_ethics/

ethics_regulation/. Accessed November 15, 2011.

3. . Washington, DC: Encyclopedia of Ethical Failure

Offi ce of General Counsel, US Dept of Defense; 

July 2010. Available at: www.dod.gov/dodgc/

defense_ethics/dod_oge/EEF_complete_10.doc. 

Accessed November 15, 2011.

4. Medical Command Regulation 715-3: Contractor/

Contractor’s Employees and MEDCOM Personnel 

Relationships. Fort Sam Houston, Texas: 

US Army Medical Command; June 14, 1999. 

Available at http://www.samhouston.army.mil/

sja/pdf_fi les/2007/715-3_Contractor_Employees_

MEDCOM%20.pdf. Accessed November 15, 2011.

5. Medical Command Pamphlet 715-2: US Army 

Medical Command Request for Approval of 

Unauthorized Commitment Processing Ratifi cations. 

Fort Sam Houston, Texas: US Army Medical 

Command; March 10, 2005. Available at: http://

hcaa.medcom.amedd.army.mil/assets/documents/

pdf/MPam715-2.pdf. Accessed November 15, 2011.

6. Medical Command Regulation 1-4: Gifts and Donations. Fort Sam Houston, Texas: US Army Medical Command; September 30, 1999. Available at: 

https://www.us.army.mil/suite/doc/19473146. [note: 

restricted access] Accessed November 15, 2011.

7. Medical Command Regulation 600-3: OffDuty Employment. Fort Sam Houston, Texas: 

US Army Medical Command; March 31, 2008. 

Available at: http://www.samhouston.army.mil/sja

/pdf_files/2008/MEDCOM_600-3_Off-Duty_

Employment.pdf. Accessed November 15, 2011.

8. Department of Defense Directive 7050.06: Military 

Whistleblower Protection. Washington, DC: US 

Dept of Defense; July 23, 2007. Available at: http://

www.dtic.mil/whs/directives/corres/pdf/705006p.

pdf. Accessed November 15, 2011.

9. Ethics in Government Act of 1978, Pub L No. 95-

521, 92 Stat 1824.

AUTHORS

COL Kent is the Staff Judge Advocate for the US Army 

Medical Command assigned to the Offi ce of the Surgeon 

General, Falls Church, Virginia.

MAJ Topinka is Deputy Staff Judge Advocate, US Army 

Medical Command, Fort Sam Houston, Texas.
10 http://www.cs.amedd.army.mil/amedd_journal.aspx

Legal Fundamentals of Contracting for

 Healthcare

Kim K. Judd, JD

Senior leaders, in fact leaders at all levels within the US 

Army Medical Command (MEDCOM), should understand basic principles of contracting for healthcare. Many 

practical and legal problems can be avoided if these principles are kept in mind as MEDCOM strives to provide 

healthcare to our Soldiers and other benefi ciaries.

SCENARIO

Consider the following scenario which is based upon recent events at a major Army hospital. You are the Deputy 

Commander for Administration (DCA) at a hospital we 

will call The Medical Center. Your facility has previously awarded a contract for nurses to the company NursesRUS (NrUs) to address a critical shortage of nurses at 

The Medical Center. Under that contract, NrUs provides 

47 nurses, all of whom work within the Department of 

Nursing. Most of the NrUs nurses are either former or 

retired Army Nurse Corps nurses or previous government civilian (GS) nurses, and many have previously 

worked at The Medical Center while on active duty/GS 

status. You have an open-door policy under which, once 

a month, you entertain complaints and allow anyone 

to come in and air their grievances. During one such 

open-door session, Nurse Johnson, an NrUs nurse, complains that she is not receiving her paycheck on a regular 

schedule. She also states that many NrUs nurses are not 

being paid on time, and further, more than a few of the 

other NrUs nurses are a month or more behind in receiving their paychecks. Nurse Johnson recently retired 

from the Army and worked for you before she retired. 

What should you as the DCA do? What other parties 

should you involve? Should you have even entertained 

Nurse Johnson’s complaint? As noted above, this particular scenario actually occurred, and is a textbook case 

of a good-intentioned DCA who failed to understand basic contracting principles. I will explain what happened 

at the end of the article.

FIRST FUNDAMENTAL

The fi rst fundamental you must understand is that you, 

as a MEDCOM leader, do not have authority over contractor employees. While you are responsible and accountable to deliver healthcare to authorized benefi ciaries, NrUs nurses are not your employees. They do not 

work for you, but rather are employed by a contractor, in 

this case, NrUs, which has a contract with an authorized 

MEDCOM agent empowered to enter into contracts 

which legally bind the Army. As a group, MEDCOM 

leaders are not empowered to enter into such contracts 

unless they are warranted contracting offi cers.

The only MEDCOM offi cial who has authority over 

NrUs is the MEDCOM contracting offi cer that signed 

the contract with that company. That contracting offi cer 

almost always has a contracting offi cer’s representative 

(COR), who helps the contracting offi cer monitor the 

performance of a company working under contract. The 

COR is usually nominated by the activity that needs contracting support. The contracting offi cer then appoints, 

in writing, the COR. The appointment letter specifi es 

that the COR is only the eyes and ears of the contracting offi cer. In other words, the COR is to report contract 

performance issues to the appointing contracting offi cer 

so that the offi cial with proper authority can attempt to 

resolve such issues.

To summarize this fi rst principle, contractor employees 

are not government employees. Rather, they are employees of the company that hired them. Their employer is 

the holder of a contract with MEDCOM, and that contract is solely within the authority of the contracting offi cer who entered into that contract. Applying this principle to the described scenario, the DCA should not have 

heard complaints from someone who is not a government employee. Nurse Johnson is paid by NrUs, and the 

most that the DCA should have done was to tell Nurse 

Johnson that she should inform the COR that her employer, NrUs, was not paying its employees in a timely 

manner. It would then be the COR’s duty to report the 

problem to the contracting offi cer.

SECOND FUNDAMENTAL

The second fundamental is that government contracts 

are legal instruments between the government authorized buyer (the contracting offi cer) and the seller, NrUs. 

It is important that MEDCOM leaders clearly understand that there are 2 parties to a contract for sale of 

healthcare services. In our case, the buyer, as legal agent 

for the director of nursing at The Medical Center (the requiring activity with the need for contracted nurses) was 
 January – March 2012 11

a warranted contracting offi cer assigned to support The 

Medical Center. Further, the seller of those services was 

NrUs, which had the obligation to supervise and compensate its own employees, in this case, Nurse Johnson. 

The responsibility to pay Nurse Johnson rested with 

NrUs, not the government.

Put another way, Nurse Johnson is not “your troop” or 

“your employee.” In every government contract, just 

as in every contract you enter into in your private life, 

there is a buyer and seller. This fact is often lost in the 

day-to-day mission performance where contractor employees work alongside government employees, whether 

active duty military or civil service. Compounding the 

problem is the fact that often both the buyer’s employees (active duty military or GS nurses) are performing 

the same healthcare functions as the seller’s employees, in this case, Nurse Johnson and her fellow NrUs 

employees.

THIRD FUNDAMENTAL

The third fundamental is that MEDCOM healthcare 

contracts, as with all federal government contracts, are 

bound by laws which are not applicable in the civilian 

world. Our contracts are funded with federal appropriated funds (mostly defense health appropriations). Because of this, federal laws and contracting rules, not 

state laws, apply.

The contracting rules are contained within the Federal 

Acquisition Regulation (FAR) (48 CFR chap 1). The federal rules generally require competition among healthcare sellers to win our contracts, and require that, for 

a MEDCOM contract to be legally binding, it can be 

entered into or changed only by a warranted contracting 

offi cer. As the US Supreme Court has stated (Federal 

Crop Insurance Corp v Merrill, 332 US 380), the fact 

that sellers 

...must turn square corners when they deal with the government”* does not refl ect a callous outlook ...it merely 

expresses the duty of all courts to observe the conditions 

defi ned by Congress for charging the public treasury.

[*Rock Island, Arkansas & Louisiana R Co v United 

States, 254 US 141, 254 US 143]

With regard to our Nurse Johnson situation, the FAR specifi cally states that it is illegal to treat Nurse Johnson as if 

she were a government employee, and it is illegal for anyone other than a warranted contracting offi cer to enter 

into or change a MEDCOM contract. Could the DCA legally have excused Nurse Johnson from coming to work? 

Hopefully the answer is painfully apparent to anyone 

who understands that Nurse Johnson is an employee of a 

recipient seller company, NrUs, which had been awarded 

a federal (FAR) contract for healthcare services.

FOURTH FUNDAMENTAL

The fourth fundamental is that acquiring healthcare services under the FAR is a 3-step process:

1. Acquisition Planning – Begins when the customer 

determines the agency’s needs. The customer coordinates with the contracting offi cer. Often, the commanding offi cer/MEDCOM leader is in charge in this phase. 

The customer delivers an acquisition package to the contracting offi ce.

2. Contract Solicitation and Award – Only the contracting offi cer has authority to enter into a contract. A 

contracting specialist delivers the acquisition package 

(from step 1) to the contracting offi cer, who solicits offers, evaluates offers, and awards the contract. The contracting offi cer is “the buyer” for the customer.

3. Contract Administration – Only the contracting offi cer has authority to administer, modify, or terminate 

a contract. The contracting offi cer appoints a contracting offi cer’s representative (COR) to conduct contract 

surveillance and communicate, through the contracting 

specialist, to the contracting offi cer. The contracting offi cer administers the contract for the customer.

In the case of Nurse Johnson, the director of nursing at 

The Medical Center, let us call her COL Caring, determined that she needed 47 nurses more than she had in her 

active duty military/GS nursing staff. She determined 

what nursing specialties were needed and then went to 

her supporting resource management offi ce with a statement of work to determine if The Medical Center had 

the appropriate funding to send the acquisition package 

to her supporting contracting offi cer. COL Caring also 

nominated someone for appointment by the contracting 

offi cer as the COR.

The supporting warranted contracting offi cer then proceeded to obtain competitive offers from companies 

interested in providing the required services/personnel. 

The contracting offi cer picked the winner of this competition based upon criteria provided by COL Caring. For 

instance, if COL Caring, as the head of the requiring activity needing the contract support, was willing (and capable) to pay more for a company with more experienced 

nurses, the solicitation for offers would include that criteria. Once the contracting offi cer picked the winner (NrUs 

in this case) the contracting offi cer signed the contract 

award, and the result is a legally binding FAR contract.

Finally, NrUs employees began performing under the 

contract, and the terms of employment between NrUs 

and Nurse Johnson is a matter solely between those 2 
12 http://www.cs.amedd.army.mil/amedd_journal.aspx

parties. If Nurse Johnson, or any other 

NrUs nurse, fails to get paid or fails to 

show up for work, that is an employment matter between NrUs and its employees. Failure to show up for work is 

a contract performance problem which 

should be noted by COL Caring and 

reported immediately to the COR. The 

COR should then immediately report 

the contractor’s performance failure to 

the contracting offi cer.

The following is the actual sequence 

of events upon which the above NrUs 

scenario is based. After listening to 

her complaint in the open-door session, 

the DCA told “Nurse Johnson” that 

this was an intolerable situation and 

that the Army did not function in this 

manner. He asked her to come back 

in a week if the nonpayment problem 

persisted. A week later she came back 

with several other “NrUs” nurses and it 

became apparent that the problem was 

getting worse. The DCA stated that the 

Army does not “mess with the troops’ 

pay,” and should that occur, the troops 

would not come to work. He told the 

NrUs nurses he would look into the 

situation. He never informed “COL 

Caring,” the COR, or the contracting 

offi cer, and then he became so busy 

that he never looked into the situation, 

although he intended to do so. The NrUs nurses started 

calling in sick which caused a severe problem for COL 

Caring. When she could no longer cover for the nurses 

with other staff, she fi nally called the supporting regional contracting offi cer, although she never informed the 

COR. The COR only found out about the problem when 

the regional contracting offi cer arrived at The Medical 

Center with a letter terminating NrUs for a FAR contract default. Fortunately, the contracting offi cer discovered the basic facts described herein, discovered a systems problem with payment of contractor invoices, and 

was able to resolve late payments by the Army to NrUs. 

Once NrUs began receiving timely payments for its services, the employees began to promptly receive their pay 

(we think). All the contracting offi cer and COL Caring 

knew was that the sickout situation resolved itself soon 

after the payment problem was addressed.

CONCLUSION

This is a very brief overview of contracting fundamentals, a simplistic representation of which is provided 

in the Figure. I encourage all readers to ask for additional training/seminars from their Offi ce of the Staff 

Judge Advocate or their healthcare contracting activity if they wish more information on various subjects, 

such as hiring, interviewing, timesheets, commending, 

awarding, causing removal or just critiquing contracted 

performance, trying to resolve contractor employment 

problems, requiring work different than that which 

the government bought, and labor hour problems. The 

fundamentals of these issues should be familiar to all 

AMEDD leaders.

LEGAL FUNDAMENTALS OF CONTRACTING FOR HEALTH CARE

Customer 

Determine and define requirement 

for contractor support. 

Prepare acquisition package. 

Contracting Officer 

Solicit and obtain offers. 

Contracting Officer’s 

Representative

Contractor 

Hire employees. 

Assign employees to 

Customer’s workplace 

Resource Manager 

Funding available?

Contracting Officer 

Award contract. 

Contracting Officer 

Appoint Contracting 

Officer’s Representative 

Customer 

Monitor performance of contractor 

employees’ in providing required 

services under the contract. 

Contractor Employee 

Perform services and functions 

stipulated in the contract. 

No 

Return to Customer 

Yes 

Customer describes concerns, 

observations, etc, regarding Contractor 

employees’ performance. 

Report of problems with 

contract compliance. 

Notification of contract 

noncompliance. 

Corrective 

Action 

A simplifi ed representation of a support contract origination and the process of 

dealing with contract noncompliance.

AUTHOR

Mr Judd is an Attorney Advisor in the Contract Law Section, Offi ce of the Staff Judge Advocate, US Army Medical 

Command, Fort Sam Houston, TX.
 January – March 2012 13

For many persons doing business in today’s integrated 

environment, the road to government contracting is as 

perilous and treacherous as Frodo Baggins’ journey from 

Middle Earth to Mordor.1

 As it was for Frodo Baggins, 

vigilance is required—integration of contract employees 

into the workplace has added an additional layer of complexity which requires thoughtful oversight to ensure the 

working relationship between government and contractor 

is maintained in proper balance, and to enforce the prohibition on contractors performing inherently governmental 

functions.

A snapshot of a typical day at a medical treatment facility or one of its satellite clinics would show civilian employees and military personnel working alongside a cadre 

of contractor employees, all performing medically-related 

mission essential functions. Working behind this scene to 

ensure that uninterrupted health care is provided to our 

Soldiers serving on 2 war fronts is the Army’s acquisition 

force who, on a daily basis, contract for a variety of medical 

services, ranging from physicians and nurses to imaging 

maintenance, as well as laboratory and hospital housekeeping services. In 2010 alone, the contracting center of excellence and 6 regional contracting offi ces acquired over $1.67 

billion (109

) in specialized health care services and supplies 

(source: Army Contracting Business Intelligence System).

With the Army having moved toward achieving total Army 

integration by maximizing the contributions of the Army 

National Guard, the US Army Reserve, and the Active 

Army through a “one team, one fi ght” concept, the current 

operational tempo fi nds increasing numbers of contractors 

in both Iraq and Afghanistan. Recent statistics indicate 

there are over 224,000 DoD contractor personnel in the US 

Central Command area of operations, creating a 1:1 military to contractor ratio in both Iraq and Afghanistan.2

 There 

is no question that management of contractor activities by 

government employees is an integral part of doing business 

every day and is a critical link in US Army Medical Command’s (MEDCOM) mission to Promote, Sustain and Enhance Soldier Health.

Whether as a civilian or armed services member, properly 

managing relationships with contractor employees is 

essential not only to the acquisition process but is the 

ethical obligation of every government employee. It rests 

on a rather simple but often misunderstood premise: 

contractor employees are not government employees and 

therefore cannot be managed in the same manner. The 

genesis of the relationship is found and subsequently 

defi ned by the contract, which forms the basis of the rights 

and obligations of the parties similar to the Uniform Code 

of Military Justice* or civil service rules and regulations. 

Adding complexity to this simple premise is the fact 

that, while contractors are not generally supervised by 

government employees, for personal health care services 

and medical malpractice purposes, there is generally 

language in the performance work statement that requires 

such supervision:

Look or sound familiar? Wait a minute, did I not just say 

“contractor employees are not government employees and 

therefore cannot be managed in the same manner?” For 

medical malpractice reasons, healthcare providers in a personal services contract are generally supervised by civilian 

or military personnel. It is a unique exception to the general 

rule but one which exists within the MEDCOM with great 

regularity. However, this exception to the supervision requirement does not change the scope of the general guidelines on managing relationships with contract employees. 

It is essential that our medical force understand and employ the proper guidelines in effectively supporting the full 

spectrum of operations within the confi nes of the law.

Contracting with the United States rests on the basic 

premise that its rules are found in the laws and regulations which govern it. Because the acquisition process is 

Roadmap for Dealing with

 Contractor Employees

Kathleen Post, JD

This is a personal services contract and is intended to 

create an employer-employee relationship between 

the government and the individual contract health 

care providers (HCPs) only to the extent necessary 

for providing healthcare services required under this 

contract. The performance of the healthcare services by 

the individual HCPs under a personal services contract are 

subject to the day-to-day supervision, clinical oversight, 

and control by healthcare facility personnel comparable 

to that exercised over military and civil service HCPs 

engaged in comparable healthcare services.

*The Uniform Code of Military Justice (UCMJ), a federal law 

(64 Stat. 109, 10 USC, chap 47) is the judicial code which 

pertains to members of the United States military. Under the 

UCMJ, military personnel can be charged, tried, and convicted 

of a range of crimes, including both common-law crimes (eg, 

arson) and military-specific crimes (eg, desertion).
14 http://www.cs.amedd.army.mil/amedd_journal.aspx

structured and restricted, even the contracting offi cer has 

no authority to deviate from these laws or regulations. It 

is important to remember from the outset that any acquisition fi nds its genesis and guidance in the Federal Acquisition Regulation (48 CFR chap 1). Thus, any acquisition 

activity generally begins, continues, and ends under the 

guidance provided under this regulation. Understanding 

the basic legal framework for the relationship with exists 

between the government employee and the contractor employee will help frame how you analyze issues which will 

inevitably surface.

Just as the role of the government is governed by law, the 

role of the contractor is limited by law and provides a legal 

barrier which distinguishes the role of the contractor from 

that of the government employee in the federal workplace. 

For this reason, contractors cannot perform inherently 

governmental functions such as making management decisions on behalf of the government.3

 Inherently governmental functions also include activities that require the exercise 

of government authority to include monetary transactions 

and entitlements. Because of the strict prohibition against 

contractors performing inherently governmental functions, 

contractor employees must identify themselves as a contractor in phone, correspondence, and other communication.

It is important to remember that even in the context of 

medical services, it is a business relationship which exists 

between the government and the contractor. The contractor 

is furnishing supplies and services for a negotiated price. 

Performance requirements by the contractor and the obligations of the government are established solely by the terms 

of the contract. The only person with authority to change 

the terms of the contract, and thereby the requirements to 

be performed under the contract, is the contracting offi cer.

At this juncture, it is also important to note that the military 

chain of command can only exercise management control 

through the contract and does not exercise direct control 

over contractors and its employees. Commanders must 

manage whatever issues arise under the contract through 

either the contracting offi cer or the contracting offi cer’s 

representative (COR). The COR is appointed by the contracting offi cer to be his or her eyes and ears on the ground 

to ensure the contractor is performing in accordance with 

the terms and conditions of the contract. While the COR 

is an important communication liaison between the commander and the contracting offi cer and an important player 

in contractor management and control, it must be understood that the COR does not exercise direct control over 

the contractor nor its employees. Only the contractor can 

directly supervise its employees (with the personal services 

exception noted above). While the COR can communicate 

the commander’s needs to the contractor, any changes to 

the contract’s requirements must be made by the contracting offi cer, the sole government offi cial with authority to 

modify the contract.

Because the relationship between the government and 

the contractor is framed by the terms of the contract, the 

answers to issues are generally found there as well. Additional guidance can also be found in MEDCOM Regulation 715-3.

3

General rules require, for instance, that government employees not direct the contractor to pay its employees a particular salary or to give performance bonuses. Contractor 

employees are also not authorized to participate in social 

events, training holidays, organizational day activities, or 

other similar events unless specifi ed in the contract or an 

exception has been obtained. This is not because the Grinch 

stole Christmas,4

 but because any activity performed by the 

contractor’s employees is governed by the terms of the contract and by the Joint Ethics Regulation.

5

Spoiler: Just as Frodo Baggins successfully made the journey from Middle Earth to Mordor, every government employee can successfully navigate the labyrinth of business 

in today’s integrated environment. Learning to manage 

expectations and understanding the contractual framework which governs the working relationship that exists 

between government and contract employees is the essential fi rst step in keeping MEDCOM’s mission to “Promote, 

Sustain and Enhance Soldier Health.”

REFERENCES

1. Tolkien JRR. The Lord of the Rings [trilogy]. New York: 

HarperCollins Publishers LLC; 2007 [reissue].

2. Contractor Support of US Operations in USCENTCOM 

AOR, Iraq and Afghanistan [5A Paper]. Washington 

DC: Offi ce of Deputy Assistant Secretary of Defense 

(Program Support); September 2010.

3. MEDCOM Regulation 715-3: Contractor/Contractor’s 

Employees and MEDCOM Personnel Relationships. 

Fort Sam Houston, Texas: US Army Medical Command; June 14, 1999.

4. Dr Seuss. How the Grinch Stole Christmas!. New York: 

Random House; 1957.

5. Department of Defense 5500.7-R: Joint Ethics Regulation. Washington, DC: US Dept of Defense; 1993 w/

update 2006.

AUTHOR

Kathleen Post is a Contract Law Attorney Advisor with 

the Offi ce of the Staff Judge Advocate, US Army Medical 

Command, Fort Sam Houston, Texas.

ROADMAP FOR DEALING WITH CONTRACTOR EMPLOYEES
 January – March 2012 15

Have You Made an Unauthorized

Commitment Lately?

Lt Col (Ret) Eugene J. Smith, JAG, USAF

INTRODUCTION

Have you made an unauthorized commitment lately? If 

you are a US Army Medical Command (MEDCOM) 

employee who interacts with contractors, vendors, or 

other nongovernmental individuals who provide goods 

or services to MEDCOM, the answer may be yes, and 

you may not yet know it. This article discusses what 

constitutes an unauthorized commitment, how it commonly occurs, at what point does it occur, why the occurrence date is signifi cant, who is legally liable, why 

it is important to avoid causing it, why some of them 

cannot be corrected, and how to reduce the occurrence 

of unauthorized commitments within MEDCOM.

WHAT IS AN UNAUTHORIZED COMMITMENT?

The Federal Acquisition Regulation (FAR) (48 CFR 

chap 1) contains the basic policies and procedures that 

federal government executive agencies must use to acquire goods and services. The FAR defi nes an unauthorized commitment as:

an agreement that is not binding solely because the government representative who made it lacked the authority to 

enter into that agreement on behalf of the government.1

Although the Department of Defense has issued the 

Defense Federal Acquisition Regulation Supplement 

(DFARS)2

 and the Department of the Army has issued 

the Army Federal Acquisition Regulation Supplement 

(AFARS)3

 to implement the FAR, neither the DFARS 

nor the AFARS further defi nes, clarifi es, or explains 

the phrase “unauthorized commitment.” At fi rst glance, 

the FAR’s defi nition may seem straightforward since it 

specifi es only 4 simple requirements for a communication or transaction to meet the defi nition of an unauthorized commitment:

1. There must be an agreement, commonly referred 

to in everyday language as a deal or an arrangement.

2. The agreement must have been made by a federal 

government representative.

3. The agreement must have been made on behalf of 

the United States.

4. The agreement must not be legally binding, also 

known as legally enforceable in court, solely because 

the government representative who made the agreement 

lacked the authority to act on behalf of the United States.

The regulatory defi nition in the FAR is not as simple or 

as comprehensive as it may initially appear. Upon closer 

examination, that defi nition leaves at least 3 major questions unanswered. First, the defi nition does not identify 

the status of the other party to the arrangement. Could 

an arrangement between 2 government representatives 

meet the defi nition of an unauthorized commitment? 

Second, the defi nition does not specify who qualifi es as 

a “government representative.” Could a government representative be the personnel of a government contractor? 

Third, the defi nition does not identify what authority is 

needed to properly act on behalf of the United States. 

Does a commanding general, subordinate commander, 

fi rst sergeant, sergeant major, director, or department 

chief have enough rank or authority to make legally 

binding agreements on behalf of the United States? 

With help from the US Government Accountability Offi ce (GAO), we know the answers to these questions will 

always be a clear and unambiguous, NO. One role of the 

GAO is to support congressional oversight by auditing 

agency operations to determine whether federal funds 

are being spent effi ciently and effectively, and by investigating allegations of illegal and improper activities. In 

1980, the GAO investigated alleged unauthorized commitments within a specifi c executive agency.4

 In the report, the GAO’s working defi nition of an unauthorized 

commitment was

...an informal agreement, between a contractor and a federal employee who does not have contracting offi cer authority, to begin work.4(pvii)

The GAO’s defi nition clarifi es that the government representative in the FAR’s defi nition must be a federal employee (civil servants and military members are federal 

employees), the agreement must be with a contractor 

(a person not a federal employee), and the authority to 

make legally enforceable agreements on behalf of the 

United States is contracting offi cer authority, not military command authority.
16 http://www.cs.amedd.army.mil/amedd_journal.aspx

The picture becomes much clearer when we view the 

FAR’s defi nition in light of the GAO’s clarifi cations. We 

see that an unauthorized commitment actually has the 

following 5, not 4, specifi c parts or requirements:

1. There must be an agreement.

2. The agreement must have been made by a federal 

government employee.

3. The agreement must have been made on behalf of 

the United States.

4. The agreement must not be legally binding solely 

because the federal government employee who made 

the agreement did not have contracting offi cer authority 

to act on behalf of (legally bind) the United States.

5. The agreement must have been made with a person 

who was not a United States government employee.

That 5-part defi nition is a more comprehensive, accurate, and usable defi nition to use when deciding whether 

an unauthorized commitment has occurred. Now that 

we have a clear, comprehensive, accurate, and usable 

defi nition of an unauthorized commitment, we can now 

explore how unauthorized commitments commonly occur within MEDCOM.

THE CONTRACTING OFFICER’S REPRESENTATIVE

It is physically impossible for a MEDCOM contracting 

offi cer to personally manage or administer every contract for which he or she is responsible, therefore, contracting offi cer’s representatives (CORs) are designated 

to assist in managing and administering the contracts. 

The COR is a government employee who has received 

special training in contract administration issues,5,6 and 

who has been appointed in writing by the contracting offi cer. The COR serves as the “eyes and ears” of the contracting offi cer in locations where the contract requires 

the contractor to actually perform the services or deliver 

goods. The job of the COR is to see that the contractor is 

performing all services as stated in the contract, and to 

promptly report all problems to the contracting offi cer. 

The role of the COR is so important to proper contract 

administration that the Department of Defense, the Department of the Army, and MEDCOM require the contracting offi cer to appoint an adequately trained COR 

for all service contracts prior to award of the service 

contract. Further, MEDCOM requires a general offi cer 

or member of the senior executive service to confi rm in 

writing that the contracting offi cer has indeed appointed 

or will appoint an adequately trained COR for all MEDCOM service contracts valued over $100,000 prior to 

award.7-9 The COR must be a military member or federal 

civil servant because COR duties are inherently governmental functions due to the amount of discretion and 

judgment necessary to perform these duties.6,10

HOW DO UNAUTHORIZED COMMITMENTS COMMONLY OCCUR

WITHIN MEDCOM?

There are 5 ways unauthorized commitments commonly 

occur. Four of those situations involve a federal employee who is not a contracting offi cer, who either:

(a) arranges for or permits MEDCOM to continue to 

receive goods or services after the lawful contract has 

expired, or

(b) arranges for or permits MEDCOM to receive 

goods or services when there was no lawful contract, or

(c) arranges for or permits MEDCOM to receive 

goods or services that are not included in the existing 

lawful contract, or

(d) directs or permits contractor personnel to deliver 

goods or perform services under terms and conditions 

contrary to those of the lawfully awarded contract.

All of the above situations commonly occur within 

MEDCOM. Although they usually occur at medical 

treatment facilities, each situation may occur just as easily at an administrative offi ce. The fi fth type of unauthorized commitment (Situation (e)) involves a contracting offi cer who purports to act on behalf of the United 

States, but the dollar amount of the agreement exceeds 

his or her designated contracting authority. This situation rarely occurred within MEDCOM during the last 

decade, perhaps because of the checks and balances in 

the contracting process.

Situation (a)

As previously described, the COR serves as the eyes and 

ears of the contracting offi cer. The general rule is that 

the COR has no authority to serve as the “mouth” of 

the contracting offi cer, and is limited to the authority 

granted by the contracting offi cer in the COR’s appointment letter. Therefore, a COR or any other member of a 

department or MEDCOM offi ce unintentionally makes 

an unauthorized commitment by ordering goods or services after the contract for those goods or services has 

expired. If the COR, department chief, offi ce director, 

or anyone else other than a contracting offi cer tells or 

permits the vendor to deliver goods or perform services 

because he or she honestly but incorrectly believes a 

contract still exists, that person unintentionally makes 

an unauthorized commitment. The same is true if that 

HAVE YOU MADE AN UNAUTHORIZED COMMITMENT LATELY?
 January – March 2012 17

THE ARMY MEDICAL DEPARTMENT JOURNAL

person honestly but incorrectly believes that a new contract to continue a particular contract service has already 

been awarded because the paperwork was submitted to 

the contracting offi ce many weeks ago, but in fact the 

contract had not yet been awarded. Yes, a government 

employee may make an unauthorized commitment without intending to do so. Yes, a government employee may 

make an unauthorized commitment even if he or she 

orders goods or services that the government actually 

needed and the government actually received and used 

the goods or services to accomplish a critical part of the 

mission. These kinds of unauthorized commitments occur because the person incorrectly assumes that a prior 

contract is still in existence, or that the contracting offi ce 

has already awarded a follow-on contract for the goods 

or services in question. The person’s beliefs and intents 

are irrelevant for the purpose of determining if the person made an unauthorized commitment. The sole focus 

in determination as to whether an unauthorized commitment occurred is whether the government employee had 

authority to act on behalf of the government in arranging to obtain the goods or services from the vendor.

Situation (b)

The COR or other member of a MEDCOM organization makes an unauthorized commitment by arranging 

to receive goods or services when there is no contract 

for those goods or services. Since a government offi cial 

can make an unauthorized commitment by acting under 

an honest but incorrect belief that there is an existing 

contract, it logically follows that the same action by an 

offi cial in a situation where there never was an actual 

contract also creates an unauthorized commitment.

Unauthorized commitments occur in situations where 

the government offi cial, being unfamiliar with the rules 

concerning who has authority to legally bind the government, purports to act on behalf of the government based 

on the offi cial’s military rank, civil service grade, and/

or duty title. This situation is different from the earlier 

situations in which the government offi cial incorrectly 

believed he or she was following proper procedures. In 

this situation, the government offi cial is unaware of the 

proper procedures or elects to disregard the proper procedures. It takes time to process paperwork. Although 

time is valuable, a lack of planning or a failure to follow 

proper emergency procedures is irrelevant to the defi nition of an unauthorized commitment.1

 Even when time 

is of the essence and a MEDCOM medical facility or 

other MEDCOM organization needs goods or services 

that are not already under a contract, the only authorized 

method of getting them quickly is through the proper 

contracting process. Needing it now is not an exception 

or defense for creating an unauthorized commitment.

Situation (c)

An unauthorized commitment occurs when a government offi cial who lacks proper authority orders particular goods or services that are not included on the existing contract. An example: there is an existing contract 

for goods or services X1 through X1001. That contract 

may have been in place for several years and the medical facility or other MEDCOM organization had never 

needed goods or services other than X1 through X1001 

during the contract period. A new, bona fi de need for 

goods or services X1002 may arise due to the arrival 

of a new provider, new person, or new patient; addition 

of new capabilities; or because of changes in other legitimate circumstances. An unauthorized commitment 

occurs if a government offi cial other than a contracting 

offi cer orders goods or services X1002 on behalf of the 

government before the contracting offi cer modifi es the 

contract to add these particular goods or services. This 

is true because goods or services X1002 is not among 

the goods or services the “noncontracting offi cer” government offi cial is authorized to order under the terms 

of the existing contract. In a more specifi c example, let 

us suppose there is an existing contract for EEMMR 

Smith Knee Company to provide specifi ed knee implant 

items to Best Army Medical Center. A new surgeon has 

been assigned, hired, or contracted to perform surgeries, including knee replacement surgeries, at Best Army 

Medical Center. The new surgeon has a legitimate reason to use knee implant items that are not listed on the 

contract with EEMMR Smith Knee Company, or on any 

other contract available to Best Army Medical Center. 

If a government offi cial then arranges for any vendor to 

supply these different knee implant items, an unauthorized commitment is created because these items are not 

available under an existing contract. The same situation 

exists if the government offi cial arranges for EEMMR 

Smith Knee Company to supply these knee implant 

items, because these items are not listed on their existing contract with the government.

Situation (d)

An unauthorized commitment occurs when a government offi cial, who lacks proper authority, directs or permits contractor personnel to deliver goods or perform 

services under terms and conditions contrary to those of 

the lawfully awarded contract. If the contract requires 

the contractor to only perform services from Monday 

through Friday, any government offi cial other than a contracting offi cer causes an unauthorized commitment by 

directing or permitting contractor personnel to perform 

services on a Saturday to help government employees 

eliminate a backlog, or help meet a need for services on 

that day. Changing the performance dates or increasing 
18 http://www.cs.amedd.army.mil/amedd_journal.aspx

the amount of contract services makes the government 

liable for an upward adjustment in the contract price. 

Only a contracting offi cer has authority to direct or permit changes in contract performance that may result in 

the government owing more money to the contractor, or 

receiving less goods or services. Likewise, if the contract requires the contractor to perform particular kinds 

of services, any government offi cial other than a contracting offi cer causes an unauthorized commitment by 

directing or permitting contractor personnel to perform 

other kinds of services. For example, if the contract provides only for cleaning fl oors and carpets, directing or 

permitting contractor personnel to take out the trash is 

an unauthorized commitment. Since contractor personnel are authorized to be on government property solely 

for the purpose of performing the services specifi ed in 

the government contract with their employer, they have 

no authority to provide free services on behalf of their 

employer. Even if contractor personnel have authority 

to provide free services on behalf of their employer or 

on behalf of themselves, such actions raise legal issues 

related to accepting gifts on behalf of the government. 

Gifts of goods or volunteer services must be processed 

in accordance with specifi c Department of Defense and 

Army rules.11,12 These procedures are designed to protect 

the interest of the government and the gift-giver, but are 

not convenient for everyday use.

Situation (e)

The fi fth type of unauthorized commitment occurs 

when a contracting offi cer purports to obligate the government in a contract that exceeds his or her warrant 

authority.13-15 Just as a commander does not have unlimited authority to command, some contracting offi cers 

hold contracting warrants that limit their authority to 

contract on behalf of the government. If the contracting 

offi cer exceeds the dollar threshold or other limitation 

of his or her contracting warrant, such action causes an 

unauthorized commitment because the contracting offi cer is acting without contracting authority. This is the 

same situation that occurs when any other government 

offi cial purports to contract on behalf of the government 

without having the required contracting authority. For 

example, an unauthorized commitment occurs if a contracting offi cer with a contracting warrant that is limited 

to awarding contracts up to $2 million awards a contract 

for $3 million. Similarly, an unauthorized commitment 

occurs if a COR or other government offi cial exceeds 

his or her delegated authority to order goods or services 

under an existing contract vehicle. For example, suppose 

the contracting offi cer delegates authority to a government offi cial to order up to $5,000 worth of goods or services in a single order under a specifi c blanket purchase 

agreement.16,17 If that government offi cial places an order 

for $6,000 in goods or services on the specifi ed blanket purchase agreement, or places an order for $4,000 

not using the specifi ed blanket purchase agreement, an 

unauthorized commitment occurs. The government offi cial exceeded his or her delegated authority to order 

goods or services on behalf of the government.

WHO IS LEGALLY RESPONSIBLE FOR COMMITTING THE

UNAUTHORIZED COMMITMENT?

The Vendor

Is the vendor legally responsible for committing the unauthorized commitment? After all, the vendors know (or 

should know) if they have contracts with the government, 

and know (or should know) the respective goods or services each contract requires the vendor to provide. While 

that may be true, vendors are not legally responsible for 

causing the unauthorized commitment. Remember, the 

government’s defi nition of an unauthorized commitment 

looks at the actions of a government employee, not at the 

actions of the vendor’s employees.1

 The defi nition is the 

same even if the same vendor repeatedly provides goods 

or services to the government with full knowledge that 

those goods or services are not covered by a lawful government contract. The vendor’s fi nancial risk, eagerness, 

or overeagerness to sell goods or services to the government has no role in the defi nition of an unauthorized 

commitment. However, the vendor does face a potential 

fi nancial risk, which will be discussed later.

Commander Or Supervisor

Is the commander or the supervisor legally responsible 

for committing the unauthorized commitment? After all, 

the commander and the supervisor are responsible for 

what happens in their organization. That may be true, 

but the commander and the supervisor are not legally 

responsible for creating the unauthorized commitment. 

Again, the government’s defi nition of an unauthorized 

commitment looks at the actions of the government offi cial who actually made the arrangements with the vendor on behalf of the government without having proper 

authority.1

The Responsible Government Offi cial

Yes, the government offi cial who made the arrangements with the vendor on behalf of the government is 

the person legally responsible for creating the unauthorized commitment. A government offi cial may create an unauthorized commitment by words or actions 

that cause the vendor to deliver goods or services on 

behalf of the government. A clear example is when a 

government offi cial calls the vendor and tells the vendor 

to deliver a specifi ed amount of particular goods or services to a designated location by a certain date for use 

HAVE YOU MADE AN UNAUTHORIZED COMMITMENT LATELY?
 January – March 2012 19

THE ARMY MEDICAL DEPARTMENT JOURNAL

by the government. The vendor does not know what the 

government needs until someone inside the government 

provides that specifi c information. If a government offi -

cial provides this information to a vendor to obtain pricing information while conducting market research18,19 or 

for any other reason, the burden is on that government 

offi cial to make it clear to the vendor that their communication is not an order by the government for goods or 

services. Another clear example is a government offi cial 

directing contractor personnel to perform services not 

included under the contract, or directing them to perform a greater quantity of services that the amount specifi ed in the contract. Both situations cause the contractor 

to incur extra cost. Since goods or services are not free, 

the contractor naturally expects to be paid extra money 

for providing the extra goods or services.

A government offi cial may also commit an unauthorized 

commitment by inaction or omission. For example, suppose the contract expires on Monday, but the contractor’s 

personnel show up on Tuesday and continue to perform 

the same services, but the government offi cial in charge 

of monitoring the contract services does nothing to stop 

that performance. If that government offi cial knows (or 

reasonably should have known) about the contractor’s 

continued performance and does nothing to stop it, that 

person commits an unauthorized commitment.

The bottom line; a government offi cial may commit an 

unauthorized commitment by commission or by omission. 

The question is whether that person’s actions or inactions 

with the vendor caused the vendor to deliver goods or 

perform services under the incorrect belief that this person had authority to act on behalf of the government.

AT WHAT POINT DOES AN UNAUTHORIZED

COMMITMENT OCCUR?

The unauthorized commitment occurs at the moment the 

government offi cial, without authority, completes the arrangements for the vendor to provide goods or services 

on behalf of the government. A government offi cial may 

have several communications over many months with a 

vendor to discuss the needs of the government. Or, the 

government offi cial may have only one communication—in person, by phone, by fax, or by email—with 

the vendor concerning the needs of the government. The 

amount of back and forth communications is not the 

key to determining the point at which the unauthorized 

commitment occurs. It occurs at the point when the government offi cial and the vendor reach a general understanding or deal concerning what the vendor will do and 

how much the government will pay the vendor for doing 

it. The price need not be expressly stated. The facts may 

show the price was implied to be the amount the government paid the last time, derived from the vendor’s 

catalog, or is simply what the parties incorrectly believe 

to be the contract price. By defi nition, the unauthorized 

commitment occurs at the time the government offi cial, 

without authority, completes the arrangements for the 

vendor to provide goods or services on behalf of the government. The unauthorized commitment does not occur 

later when the vendor actually delivers the goods or performs the services.

In the case of an unauthorized commitment created by 

omission, the unauthorized commitment occurs at the 

time the government offi cial knows, or should have reasonably known, of the vendor’s continued performance 

without the benefi t of a contract. The vendor will normally submit an invoice for payment at the same prices 

as in the expired contract.

WHAT IS THE SIGNIFICANCE OF THE DATE ON WHICH THE

UNAUTHORIZED COMMITMENT OCCURRED?

It is critically important to determine the correct date on 

which the unauthorized commitment occurs because of 

fi scal law reasons. If the unauthorized commitment is later approved or ratifi ed by a government offi cial with authority to do so, the money must come from the fi scal year 

in which the unauthorized commitment was made.20

In some instances, the unauthorized commitment may 

have occurred 2 or more fi scal years ago, the vendor may 

have provided the goods or services one or more fi scal 

years ago, a government offi cial may not have discovered 

and reported the situation until last fi scal year, and it may 

not be ratifi ed or approved until this fi scal year. This is 

the case if the government offi cial made the unauthorized 

deal with the vendor in August of fi scal year 2008, the 

vendor delivered the goods or services on time in November of fi scal year 2009, the vendor did not submit a proper 

invoice to the government until July of fi scal year 2010, 

and the transaction was not approved until December of 

fi scal year 2011. Using the wrong fi scal year money to pay 

the vendor is a Bona Fide Need Rule violation, a statutory violation.21,22 That is why is it critically or criminally 

important to document in which fi scal year the unauthorized commitment occurred. That task becomes harder 

and harder the closer to the end of the fi scal year that 

the unauthorized commitment occurs, and government 

personnel with personal knowledge of communications 

between the vendor and the government offi cial are no 

longer available to provide information. The absence 

of government offi cials with personal knowledge of the 

facts may mean having to rely on the “paper trail” to reconstruct what happened, and when it happened.
20 http://www.cs.amedd.army.mil/amedd_journal.aspx

WHY IS IT IMPORTANT TO AVOID COMMITTING AN

UNAUTHORIZED COMMITMENT?

One reason it is important to avoid committing unauthorized commitments is because committing them is a 

regulatory violation. The regulations say do not do it.23,24

If you do not have a contracting offi cer’s warrant that 

gives you authority to enter into contracts or make deals 

on behalf of the government, comply with the regulations 

and do not do it. Even in emergencies, there should be 

enough time to contact the COR, permit the COR to notify the contracting offi cer, and allow the contracting offi -

cer to make the necessary arrangements to avoid mission 

failure. The COR must be contacted so that an authorized 

government offi cial may promptly take the proper contracting steps for mission success. If the COR is unavailable for any reason, the proper action is to contact the onduty contracting offi cer that services your organization 

to quickly obtain the required goods and services.

Another reason it is important to avoid committing an 

unauthorized commitment is the harsh fi nancial impact 

on the vendor. After the contracting offi cer has put a contract vehicle in place under which to make the payment, 

the vendor must still wait for the Defense Finance and 

Accounting Service to make the payment. Because of 

processing and paying times, it could take several months 

before the vendor actually receives payment, even if the 

unauthorized commitment is immediately discovered. 

As you might imagine, it is a severe fi nancial hardship 

for small businesses to wait several months for payment 

from the government while those small businesses must 

meet weekly payroll and other operating costs.

Another reason it is important to avoid making an unauthorized commitment is the potential for personal 

fi nancial disaster. Of course, a civil service offi cial is 

subject to possible adverse personnel actions for failing 

to correctly perform his or her job since his or her job 

does not include making unauthorized commitments. 

Those adverse actions are stipulated in Army Regulation 690-700,

25 Chapter 751, Table 1-1, Offense 14, as 

shown in the Figure. A military offi cial is subject to 

possible punishment under Article 134 of the Uniform 

Code of Military Justice.26 The beginning of personal 

fi nancial disaster for civil service offi cials and/or military members could also be the end of their government 

employment. Such is very unlikely to occur in MEDCOM, especially on a fi rst offense and when the person 

was acting in good faith to get the mission accomplished. 

However, the other path to personal fi nancial disaster 

could be a vendor suit for payment against the person 

who created the unauthorized commitment in his or her 

personal capacity, because the rules prohibited the government from ratifying the unauthorized commitment. 

If the vendor delivered goods and services as agreed, 

but the rules prohibit the government from paying the 

vendor for those goods and services, the vendor has a 

legal right to fi le a lawsuit against a government offi -

cial in his or her personal capacity for full payment for 

those goods and services agreed to by that government 

offi cial. Having to personally pay tens of thousands or 

hundreds of thousands of dollars for goods and services 

used by the government, plus interest, court costs, and 

attorney fees, would most likely be a personal fi nancial 

disaster for most government employees.

Another reason it is important to avoid making an unauthorized commitment is the large amount of MEDCOM human resources required to process an unauthorized commitment action. The ratifi cation process — the 

Extract from Table 1-1, Chapter 751, Army Regulation 690-700.

25 Full table available at: http://www.apd.army.mil/cpol/

ar690-700/ar690-700-751/penalty.html 

Offense Nature of Offense First Offense Second Offense Third Offense Remarks

14. Failure to observe written regulations, orders, rules, 

or procedures

a. Violation of administrative rules 

or regulations where safety to persons or property is not endangered.

Written reprimand 

to 1 day suspension

1-14 day suspension 5 day suspension 

to removal

b. Violation of administrative rules 

or regulations where safety to persons or property is endangered.

Written reprimand 

to removal

30 day suspension to 

removal

Removal 

c. Violations of offi cial security 

regulations. Action against National 

Security:

 

(1) Where restricted information 

is not compromised and breach is 

unintentional.

Written reprimand 

to 5 day suspension

1-14 day suspension 5 day suspension 

to removal

See AR 380-67* 

and 5 USC §7532

(2) Where restricted information 

is compromised and breach is 

unintentional.

Written reprimand 

to removal

30 day suspension to 

removal

Removal 

(3) Deliberate violation. 30 day suspension 

to removal

Removal 

*Army Regulation 380-67: Personnel Security Program, September 9, 1988

HAVE YOU MADE AN UNAUTHORIZED COMMITMENT LATELY?
 January – March 2012 21

THE ARMY MEDICAL DEPARTMENT JOURNAL

formal contracting procedures used to determine if the 

government can and should pay the vendor for the goods 

or services — is time-consuming.1

 Under current MEDCOM Pamphlet 715-2,

27 the vendor will almost always 

have to create and submit a special invoice. The vendor’s 

usual invoice will almost never contain the special language required for the vendor to certify that the vendor 

delivered the goods or services to the government, and 

to certify that the vendor has not yet been paid for these 

goods or services. To avoid submitting a false claim,28

the vendor must take the time to verify the facts, prepare 

the new special invoice, certify that invoice, and submit 

it to the government. In addition to obtaining a proper 

invoice, the person who made the unauthorized commitment must complete and sign a portion of MEDCOM 

Form 747-R to provide the facts as to what happened. 

The supervisor of the person must complete and sign 

another portion of that form to confi rm the facts. The 

fi rst colonel or civilian equivalent offi cial in the person’s 

supervisory chain must also complete and sign a portion 

of the MEDCOM Form 747-R. If the incident occurred 

at a military medical facility, the commanding offi cer 

of that medical facility must also complete and sign a 

portion of the form. All of this takes time, especially 

when you consider that individuals may be on leave or 

have changed duty stations. Completed documentation 

goes to the contracting offi cer for a decision or recommendation, depending on the amount of money involved. 

It takes time for the contracting offi cer to reach a decision or recommendation because he or she is usually 

busy awarding new contracts or administering existing 

contracts. If the contracting offi cer fi nds that the vendor should receive payment, the contracting offi ce must 

wait for the budget offi ce of the person who made the 

unauthorized commitment to provide a funding document with full funding certifi ed for the proper fi scal year 

within which the unauthorized commitment occurred. 

The contracting offi cer must send the fi le to the legal 

offi ce for review29 to make sure the proposed payment is 

legal. It is common for a legal review to require a long 

time. It takes even more time if the fi le is legally insuffi cient and more documentation must be gathered. Once 

the fi le receives “legally suffi cient” status, the contracting offi cer or a higher level contracting offi cial signs the 

MEDCOM Form 747-R to approve the payment. The 

contracting offi cer must then issue a new contract vehicle to the vendor, or modify the existing contract to 

have a contract vehicle under which to make the payment. If the amount of the unauthorized commitment is 

$100,000 or more, the ratifi cation process includes an 

in-person or video teleconference appearance by specifi c offi cials before the Head of the Contracting Activity (currently a dual-hatted responsibility of the Chief of 

Staff, MEDCOM) to explain the situation and remedial 

measures.30 All of this processing time consumes taxpayers’ money to pay many government employees to 

process unauthorized commitment forms, instead of 

paying them to do their “real” jobs.

WHY ARE SOME UNAUTHORIZED COMMITMENTS NOT

RATIFIABLE?

The FAR requires legal review29 of all proposed ratifi cation actions because there are limitations on approving 

ratifi cations of unauthorized commitments. An unauthorized commitment cannot be legally ratifi ed unless 7 

specifi c conditions are satisfi ed.31,32

1. The vendor must have already provided the goods 

or services to the government, and the government must 

have already accepted them, or the government has 

otherwise obtained or will obtain a benefi t from performance of the unauthorized commitment. If the vendor 

has not yet provided the goods or services, the unauthorized commitment cannot be legally ratifi ed, regardless 

of the amount of expenses the vendor incurred in preparing to deliver the goods or services.

2. A government offi cial must have proper authority 

to ratify an unauthorized commitment. Government offi cials do not have ratifi cation authority based on their 

military rank or civil service grade. Only specifi ed government offi cials with contracting authority have ratifi -

cation authority. In addition, offi cials with ratifi cation 

authority have limitations on the dollar amount they are 

authorized to ratify.33 It is legally impermissible to split 

the unauthorized commitment for the purpose of avoiding an approval threshold.

3. The contract that results from the ratifi cation action must have otherwise been proper if it had been 

originally made by an appropriate contracting offi cer. In 

other words, the unauthorized commitment cannot be 

properly ratifi ed if contracting or fi scal law rules would 

have prohibited a contracting offi cer from entering into 

the original agreement on behalf of the government. One 

example: if contracting rules required the government to 

acquire the goods or services from a small business, but 

the unauthorized commitment is with a large business.

4. The contracting offi cer reviewing the unauthorized commitment must determine that the invoiced price 

is fair and reasonable. To make this determination, the 

contracting offi cer relies on market research,18 personal 

knowledge, prices listed on existing contracts for the 

same or for similar goods or services, and other reasonable means. If the invoiced price is too high, the contracting offi cer has authority to negotiate a lower invoice 

price.
22 http://www.cs.amedd.army.mil/amedd_journal.aspx

5. The contracting offi cer must recommend payment 

of the invoice, and legal counsel must concur in that 

recommendation. The contracting offi cer has a duty to 

gather the facts and comply with various contracting 

statutes, regulations, rules, and policies before making a 

recommendation. The legal counsel has a duty to review 

the fi le for legal suffi ciency.

6. The correct amount and correct kind of government funds must have been available at the time the unauthorized commitment occurred, and those funds must 

be currently available to pay the invoiced amount. To 

know if the required funds were available and are still 

available, the contracting offi cer relies on a certifi cation 

from a resource management offi cial in the organization 

of the person who made the unauthorized commitment.

7. An unauthorized commitment cannot be legally 

ratifi ed unless it complies with all other limitations 

prescribed under Army procedures. For example, local agency procedures could further restrict the dollar 

thresholds at which various contracting offi cials have 

authority to ratify the unauthorized commitment.

HOW TO REDUCE THE NUMBER OF UNAUTHORIZED

COMMITMENTS WITHIN MEDCOM?

The number of unauthorized commitments may be reduced within MEDCOM by some or all of the following 

actions:

Education – This is the fi rst step in knowing what comprises an unauthorized commitment, recognizing situations that are likely to result in an unauthorized commitment, and understanding why it is so important to avoid 

creating an unauthorized commitment. Without the 

education piece of the equation, government employees 

will not know what are unauthorized commitments, why 

they are highly undesirable, or how to avoid causing 

them to occur. Education is so important that all Offi ce 

of the Surgeon General and MEDCOM employees are 

required to receive unauthorized commitment training 

as part of their annual ethics training.34 The MEDCOM 

Health Care Acquisition Activity has created a video to 

facilitate this annual training and increase awareness of 

the need to avoid causing unauthorized commitments. 

Most unauthorized commitments occur because government employees are not aware that they lack authority to 

enter or change contracts on behalf of the government.

Attention to details – A lack of attention to details results 

in many unauthorized commitments. Too many government offi cials are paying inadequate attention to the terms 

and conditions of the existing contract, including the contract expiration date. As discussed earlier, ordering goods/

services that are not included on the contract or continuing to order goods/services after the contract has expired 

will result in an unauthorized commitment. Paying closer 

attention to exactly what goods or services are covered by 

the contract and the available period for obtaining them 

will reduce the number of unauthorized commitments.

Planning – Some unauthorized commitments occur because of a lack of adequate planning to properly contract 

for the necessary goods or services before they are actually needed to accomplish the mission. Obviously, when 

individuals need something in their personal lives, they 

can make a quick trip to the store of their choice and 

purchase the item of their choice with personal funds. 

When the government needs something and will use appropriated funds to purchase the item, statute requires 

the government shopper to follow certain competition 

rules before obligating the government to part with taxpayers’ money.35 Depending on the amount of money involved, these competition rules require the government 

to give some degree of notice to the public so that interested sellers will have a fair opportunity to compete in 

the sale of their goods and services to the government. 

Compliance with the competition procedures takes time. 

This is why the customer sometimes assumes that a new 

contract is in place because the contracting offi ce has had 

the requirement, the funding document, and the rest of 

the acquisition package for weeks, or even months. Advance planning is required to give the contracting offi ce 

enough time to properly award a contract for the goods 

and services in routine situations. There are some solesource, shortcut procedures for legitimate emergencies, 

but not for use when the customer creates the urgency by 

failing to perform adequate acquisition planning.36

Accountability – This is the fi nal step in reducing the 

number of unauthorized commitments. Being held personally accountable for creating an unauthorized commitment should be an extra personal incentive for government employees to learn about unauthorized commitments and to avoid creating them. As can be easily 

imagined, increasing personal accountability by taking 

appropriate disciplinary actions against MEDCOM personnel who create unauthorized commitments is much 

more challenging when the offenders act solely for the 

benefi t of the military mission and without any personal 

gain. To get the job done and the absence of personal 

gain are 2 consistent features of unauthorized commitments created in MEDCOM. While these 2 features may 

be admirable, they are totally irrelevant to the legal issue of whether an unauthorized commitment occurred.

Because health care costs tend to be relatively high, 

unauthorized commitments for health care goods and 

HAVE YOU MADE AN UNAUTHORIZED COMMITMENT LATELY?
January – March 2012 23

THE ARMY MEDICAL DEPARTMENT JOURNAL

services also tend to be relatively large. You may wonder how large is “relatively large.” A review of MEDCOM Form 747-R submissions over the last decade 

determined that the most expensive unauthorized commitment in MEDCOM for that period occurred in 2006 

in the amount of $656,483.40 for nucleic acid test kits 

and testing services for HIV-1, Hepatitis C, and the West 

Nile Virus (MEDCOM Form 747-R dated September 14, 

2007). The single largest series of unauthorized commitments for the same goods and services during the 

last decade occurred from March 14, 2005 through July 

6, 2005 when MEDCOM personnel made 365 unauthorized commitments totaling $646,168.89 to the same 

vendor for the same kind of goods and services for patient care of amputee patients of Operations Enduring 

Freedom/Iraqi Freedom (MEDCOM Form 747-R dated 

July 21, 2005). Although these goods and services were 

needed and were used to accomplish the mission in both 

situations, the unauthorized commitments could have 

been avoided by providing proper training, paying adequate attention to details, planning to meet the needs for 

future contract goods and services, and having a consistent history of holding individuals personally accountable for creating unauthorized commitments. There is 

seldom, if ever, a situation where an unauthorized commitment cannot be avoided. Customers should always 

contact their servicing contracting offi ce when they 

have routine or urgent needs for goods or services that 

are not covered by an existing contract. The contracting 

offi cer has the authority to legally bind the government 

by creating a legal obligation for the government to pay 

for goods and services.

CONCLUSION

For all of the reasons presented in this article, when situations conducive to creating an unauthorized commitment occur, MEDCOM personnel must resist the temptation to take a chance on accomplishing the mission 

through unauthorized means. Instead of creating an unauthorized commitment to get the job done, MEDCOM 

personnel should contact their servicing contracting offi ce, day or night, and acquire the goods and services 

through proper contracting means.

REFERENCES

1. Federal Acquisition Regulation, Subchapter A, Part 

1, Paragraph 1.602-3(a). https://www.acquisition.

gov/far/loadmainre.html.

2. Defense Federal Acquisition Regulation Supplement. Washington, DC: US Dept of Defense; 

1998 [2011 update]: Subpart 201.6. Available at: 

http://www.acq.osd.mil/dpap/dars/dfars/pdf/r2011

1004/201_6.pdf.

3. Army Federal Acquisition Regulation Supplement. 

Washington, DC: US Dept of the Army; 2001 (2010 

update): Subsection 5101.602-3. Available at: http://

farsite.hill.af.mil/reghtml/regs/other/afars/5101.

htm#P225_28467.

4. Comptroller General of the United States. 

Unauthorized Commitments: An Abuse of 

Contracting Authority in the Department of 

Energy. Washington DC: US General Accounting 

Offi ce; December 4, 1980. Report EMD-81-12. 

Available at: http://archive.gao.gov/f0202/114245.

pdf. Accessed October 6, 2011.

5. Federal Acquisition Regulation, Subchapter A, Part 

1, Paragraph 1.602-2(d). Available at: https://www.

acquisition.gov/far/loadmainre.html.

6. Defense Federal Acquisition Regulation Supplement. Washington, DC: US Dept of Defense; 1998 

[2011 update]: Paragraph 201.602-2(2). Available at: 

http://www.acq.osd.mil/dpap/dars/dfars/pdf/r2011

1004/201_6.pdf.

7. Deputy Secretary of Defense. Memorandum: 

Monitoring Contract Performance in Contracts 

for Services. Washington, DC: US Dept of Defense; August 22, 2008. Available at: https://acc.

dau.mil/CommunityBrowser.aspx?id=278831. 

Accessed October 6, 2011.

8. Army Regulation 70-13: Management and Oversight of Service Acquisitions. Washington, DC: US 

Dept of the Army; July 30, 2010: paragraphs 2-2.f, 

2-5.

9. Offi ce of The Surgeon General. Memorandum: 

MEDCOM Policy on In-sourcing/Civilian Hiring 

Actions (CHA) and Service Contract Approval 

(SCA) Requests. Fort Sam Houston, TX: US Army 

Medical Command; February 26, 2010:2. OTSG/

MEDCOM Policy Memo 10-007.

10. Federal Acquisition Regulation, Subchapter A, Part 

1, Subparagraph 1.602-2(d)(1). Available at: https://

www.acquisition.gov/far/loadmainre.html.

11. 31 USC §1342.

12. Comptroller General of the United States. Gifts of 

Goods and Services to the Government. Washington, DC: US General Accounting Offi ce; March 4, 

2002. Opinion B-289903. Available at: www.gao.

gov/decisions/appro/289903.pdf. Accessed October 

6, 2011.

13. Federal Acquisition Regulation, Subchapter A, Part 

1, Paragraph 1.602-1(a). Available at: https://www.

acquisition.gov/far/loadmainre.html.

14. Federal Acquisition Regulation, Subchapter A, Part 

1, Paragraph 1.603-3(a). Available at: https://www.

acquisition.gov/far/loadmainre.html.
24 http://www.cs.amedd.army.mil/amedd_journal.aspx

15. Army Federal Acquisition Regulation Supplement. 

Washington, DC: US Dept of the Army; 2001 (2007 

update): Subparagraph 5101.602-1(b)(2). Available at: http://farsite.hill.af.mil/reghtml/regs/other/

afars/5101.htm#P225_28467.

16. Federal Acquisition Regulation, Subchapter C, 

Part 13, Subparagraph 13.303-3(a)(3). Available at:

https://www.acquisition.gov/far/current/html/

Subpart%2013_3.html#wp1092057.

17. Federal Acquisition Regulation, Subchapter C, 

Part 13, Subparagraph 13.303-3(a)(4). Available at:

https://www.acquisition.gov/far/current/html/

Subpart%2013_3.html#wp1092057.

18. Federal Acquisition Regulation, Subchapter B, Part 

10. Available at: https://www.acquisition.gov/far/

current/html/FARTOCP10.html#wp266706.

19. Army Federal Acquisition Regulation Supplement. 

Washington, DC: US Dept of the Army; 2001 (2010 

update): Section 5110.002. Available at: http://

farsite.hill.af.mil/reghtml/regs/other/afars/5110.

htm#P3_34.

20. Federal Acquisition Regulation, Subchapter A, Part 

1, Subparagraph 1.602-3(c)(6). Available at: https://

www.acquisition.gov/far/loadmainre.html.

21. 31 USC §1502(a).

22. General Accounting Offi ce. Principles of Federal 

Appropriations Law. Vol 1. 3rd ed. Washington 

DC: Offi ce of the General Counsel, GAO; January 

2004:5.11-5.15. Available at: http://www.gao.gov/

special.pubs/d04261sp.pdf.

23. Federal Acquisition Regulation, Subchapter A, Part 

1, Paragraph 1.602-1(b). Available at: https://www.

acquisition.gov/far/loadmainre.html.

24. Federal Acquisition Regulation, Subchapter A, Part 

1, Paragraph 1.602-3(b). Available at: https://www.

acquisition.gov/far/loadmainre.html.

25. Army Regulation 690-700: Personnel Relations and 

Services (General). Washington, DC: US Dept of 

the Army; 1981. Available at: http://www.apd.army.

mil/cpol/cpo.asp.

26. 64 Stat. 109, 10 USC, chap 47.

27. MEDCOM Pamphlet 715-2: US Army Medical 

Command Request for Approval of Unauthorized 

Commitment Processing Ratifi cations. Fort Sam 

Houston, Texas: Headquarters, US Army Medical 

Command; March 10, 2005.

28. 31 USC §3729.

29. Federal Acquisition Regulation, Subchapter A, Part 

1, Subparagraph 1.602-3(c)(5). Available at: https://

www.acquisition.gov/far/loadmainre.html.

30. Health Care Acquisition Activity Policy Letter 11-

02: Policy and Procedures Regarding Unauthorized 

Commitments. Fort Sam Houston, Texas: Headquarters, US Army Medical Command; May 31, 

2011:para 7g2.

31. Federal Acquisition Regulation, Subchapter A, Part 

1, Paragraph 1.602-3(c). Available at: https://www.

acquisition.gov/far/loadmainre.html.

32. Army Federal Acquisition Regulation Supplement. 

Washington, DC: US Dept of the Army; 2001 (2010 

update): Paragraph 5101.602-3-90. Available at:

http://farsite.hill.af.mil/reghtml/regs/other/

afars/5101.htm#P225_28467.

33. Army Federal Acquisition Regulation Supplement. 

Washington, DC: US Dept of the Army; 2001 (2010 

update): Paragraph 5101.602-3(b). Available at:

http://farsite.hill.af.mil/reghtml/regs/other/

afars/5101.htm#P225_28467.

34. Offi ce of The Surgeon General. Memorandum: 

Policy and Procedures Regarding Unauthorized 

Commitment Training (UAT). Fort Sam Houston, 

Texas: US Army Medical Command; March 3, 

2010. OTSG/MEDCOM Policy Memo 10-010.

35. 10 USC §2304(c).

36. Federal Acquisition Regulation, Subchapter B, Part 

6, Section 6.301(c)(1). Available at: https://www.

acquisition.gov/far/loadmainre.html. Available at:

https://www.acquisition.gov/far/current/html/

Subpart%206_3.html#wp1086841.

AUTHOR

Lt Col (Ret) Smith is a Contracts Law Attorney Advisor 

with the Office of the Staff Judge Advocate, US Army 

Medical Command, Fort Sam Houston, Texas.

HAVE YOU MADE AN UNAUTHORIZED COMMITMENT LATELY?
 January – March 2012 25

INTRODUCTION

In these days of debt and budget issues facing our country, it is important for leaders, managers, and federal 

employees to have a solid understanding of fi scal law. 

Fiscal law is the body of law that governs the availability and use of federal funds. Fiscal law is derived from 

many sources, including the US Constitution, legislative 

appropriation acts and authorization acts passed by Congress and signed into law by the President, judicial court 

rulings, and Comptroller General Decisions pertaining 

to constitutional and congressional intent.

CONGRESS

Only the US Congress has the ability to appropriate 

funds to be spent by the federal government, including 

the President. The constitutional basis for this power is 

rooted in a single sentence contained in the appropriation clause1

:

No money shall be drawn from the treasury, but in 

consequence of appropriation made by law.

Congress can decree, either in the appropriation itself 

or by separate statutory provisions, what is required 

to make the appropriation “legally available” for any 

expenditure. The power of the purse (or providing the 

money) belongs to Congress while the executive agencies, like the Department of Defense (DoD), carry out 

the laws with the money that Congress provides.

JUDICIARY

The judicial branch (the federal court system) also has a 

signifi cant infl uence in fi scal law and the identifi ed limitations on congressional spending power. Among these 

limitations are:

 The spending power must only be exercised in pursuit of the general welfare.

 The conditions imposed on the use of federal funds 

must be reasonably related to the articulated goals.

 The intent of Congress to impose conditions must 

be authoritative and unambiguous.

 The action in question must not be prohibited by the 

Constitution.

Unlike other areas where a leader, manager, or employee may have the latitude to do anything not expressly 

prohibited to complete the mission, fi scal law requires 

a person to have affi rmative authority to use funds for a 

particular purpose. The US Supreme Court underscored 

this principle:

The established rule is that the expenditure of public 

funds is proper only when authorized by Congress, not 

that public funds may be expended unless prohibited by 

Congress.2

In other words, the fact that funds are available and Congress has not expressly prohibited buying something 

does not constitute authority to buy it. Instead, a federal employee must be prepared to show how Congress 

has authorized and appropriated funds for the proposed 

expenditure.

PURPOSE AND THE NECESSARY EXPENSE RULE

In 1809, Congress passed the Purpose Statute.3 The text 

of the general provision of that statute is: 

Appropriations shall be applied only to the objects for 

which the appropriations were made except as otherwise 

provided by law.

Simply stated, the Purpose Statute says that public funds 

may be used only for the purpose or purposes for which 

they were appropriated. It prohibits charging authorized 

items to the wrong appropriation, and unauthorized 

items to any appropriation.

In 1954, the Comptroller General proposed a 3-part test 4

to determine whether expenditure is proper under the 

Purpose Statute:

1. The expenditure of an appropriation must be for 

a particular statutory purpose, or necessary and incident to proper execution of the general purpose of the 

appropriation.

2. The expenditure must not be prohibited by law.

Fiscal Law Overview

CPT Juan Lozada-Leoni, JAG, USA

Maurice A. Deaver, Jr, JD

MAJ Joseph B. Topinka, JAG, USA
26 http://www.cs.amedd.army.mil/amedd_journal.aspx

3. The expenditure must not be otherwise provided for; it must not fall within the scope of some other 

appropriation.

In 1987, the Comptroller General determined that the 

fi rst part of the test means that an expenditure is permissible if it is reasonably necessary to accomplish the objective of an appropriation, or will contribute materially 

to the accomplishment of that objective.5

 The Comptroller General developed this rule (“Necessary Expense 

Rule”) because Congress is not required to specify every item of expenditure; it does not have the time, nor do 

we want it to specify every item. An agency wants and 

needs a certain amount of discretion to determine how 

it is going to accomplish its mission. The Necessary Expense Rule provides that fl exibility. Unfortunately, what 

is “necessary” for one may seem like a luxury to another. 

That gap in perspective can get people into trouble.

The second part of the test is more straightforward. If the 

law specifi cally prohibits an expenditure, appropriated 

funds cannot be used for that particular purpose. Prohibitions may be found in appropriations acts, authorization acts, or other legislation. Since appropriations acts 

are made for a particular fi scal year, the presumption is 

that everything in the act applies only to the fi scal year 

covered. A provision contained in an annual appropriation act is not construed as permanent legislation unless 

the language used or the nature of the provision makes it 

clear that Congress intended it to be permanent.

The third part of the test relates to whether the expenditure is one that has been budgeted for or has typically 

been made from another more specifi c appropriation. In 

some cases, there may be 2 or more appropriations that 

are available for the expenditure, but that does not mean 

there is unfettered discretion.

An example of the third part of the test is the treatment 

of expenses and investments.6

 Expenses are those items 

that are consumed in operating and maintaining our 

agencies. Expenses are funded from operations and 

maintenance (O&M) accounts. Investments are those 

items acquired for their long-term use, eg, capital assets, 

such as equipment. Generally, procurement dollars are 

used for investments. Annual defense appropriations 

acts specifi cally allow investment purchases with a unit 

cost up to $250,000 to be funded with O&M appropriations. DoD has elected to do so in most cases. Thus, the 

rules on spending for these 2 types of items are7

:

1. Procurement dollars must be used for purchase of 

an investment item that costs more than $250,000.

2. If the cost of an investment item is $250,000 or less, 

the purchaser must use O&M funds.

The funding test based on whether the unit cost of the 

investment exceeds $250,000 may sound simple, but it 

can become a problem in the purchase of computer systems. Today, we normally do not buy just one computer 

to be used by an individual as a word-processor. Rather, 

we usually buy computer systems: a network of computers with printers, internet access, and other peripherals. 

Because of this, we now have a test when it comes to 

purchases of computer (and other) systems: if the purchase is a system (a number of interconnected components designed to primarily function within the context 

of the whole), and the total cost of the system is over 

$250,000, the agency must use procurement dollars. If 

the purchase consists of a number of computers that will 

each operate independently, then there is no problem using O&M dollars for each piece, as long as each separate 

computer costs under $250,000.8,9

Representation funds are included within appropriations 

made available to the executive branch “for emergencies or extraordinary expenses.”10 Offi cial representation funds are tightly regulated because of their limited 

availability and potential for abuse. Congress has long 

recognized that many agencies have a legitimate need 

for items that otherwise would be prohibited as entertainment, and has responded by making limited amounts 

available for offi cial entertainment to those agencies 

that can justify the need. Entertainment appropriations 

originated from the need to permit offi cials of agencies whose activities involve substantial contact with 

foreign offi cials to reciprocate for courtesies extended 

to them by foreign offi cials. The Defense Department 

has its own authority. The Secretary of Defense, or the 

Secretary of a military department, within the limitations of appropriations made for that purpose, may use 

funds to “provide for any emergency or extraordinary 

expense which cannot be anticipated or classifi ed.”10

When so provided in an appropriation, the offi cial may 

spend the funds “for any purpose he determines to be 

proper.”10 Annual O&M appropriations include amounts 

for “emergencies and extraordinary expenses.”10

TIME

Congress has the right to limit its appropriations to 

particular times as well as to particular objects, and 

when it has clearly done so, its will expressed in the law 

should be implicitly followed.11

The placing of time limits on the availability of appropriations is a primary means of congressional control. 

FISCAL LAW OVERVIEW
 January – March 2012 27

THE ARMY MEDICAL DEPARTMENT JOURNAL

By imposing a time limit, Congress reserves to itself the 

prerogative of periodically reviewing a given program or 

agency’s activities. On the basis of time (duration), there 

are 3 types of appropriations: annual appropriations, multiyear appropriations, and no-year appropriations. These 

appropriations are either current, expired, or closed.

Annual appropriations are made for a specifi ed fi scal 

year and are available for new obligations only during 

that fi scal year. Routine activities of the federal government are, for the most part, fi nanced by annual appropriations. Personnel and O&M appropriations are annual 

appropriations. All appropriations are presumed to be 

annual appropriations unless the appropriation act expressly provides otherwise.

Multiple-year appropriations are available for new obligations for a defi nite period in excess of one fi scal year. 

Multiple-year appropriations are subject to the same principles applicable to annual appropriations. Multiple-year 

defense appropriations include: research, development, 

test and evaluation funds (2 years), procurement funds 

(3 years), and military construction funds (5 years).6

Current appropriations are monies for which availability 

for new obligations has not yet expired under the terms 

of the governing appropriations act. These funds may be 

obligated during the “present” period, but are subject to 

appropriation rules and laws. 

Expired appropriations are monies for which availability 

has expired for new obligations, but which are available 

to adjust and liquidate previous obligations. All appropriations remain expired for 5 years. 

Closed or cancelled appropriations are monies that are 

no longer available for any purpose. After 5 years, the 

agency must stop using these funds for any purpose. 

This means that the funds cannot be obligated, the funds 

cannot be used to adjust contracts, and they must become miscellaneous receipts to the US Treasury. 

BONA FIDE NEEDS RULE

Generally, the Bona Fide Needs Rule11 states that a fi scal 

year appropriation may be obligated only to meet a legitimate, or bona fi de, need arising in, or in some cases arising prior to but continuing to exist in, the fi scal year for 

which the appropriation was made. The rule does allow 

maintaining inventories at levels reasonably necessary to 

avoid disruption of operations, however, caution must be 

exercised so that the line between reasonable and excessive is not crossed.

Questions frequently arise regarding requirements that 

cover more than one fi scal year. In the typical situation, 

a contract is made in one fi scal year, with performance 

extending into part of the following year. In the case of 

service contracts, the Bona Fide Needs rule requires that 

contracts be performed only during the period of availability of the funds for new obligations. By statute,12,13

however, Congress now also allows the use of funds, “for 

procurement of severable services for a period that begins in one fi scal year and ends in the next fi scal year if 

(without regard to any option to extend the period of the 

contract) the contract period does not exceed one year.”14 

Severable services are those that are routine, repetitious 

services that can be divided by fi scal years because they 

involve a series of services such as janitorial work or 

grounds maintenance.

When it comes to delivery of supplies beyond the fi scal 

year, the normal answer is that supplies are a bona fi de 

need of the period in which the supplies will be used. 

That is, current funds generally cannot be used to purchase items beyond the time when the current need for 

materials exists. However, there are lead time and stock 

level exceptions to the rule which allow obligation of 

funds in one year and delivery of supplies in the next 

fi scal year.

AMOUNT

The separation of powers doctrine established by the 

Constitution allows Congress to make laws and provide 

money to implement them. This same doctrine gives the 

executive branch the authority to carry out the laws with 

funds that are provided by Congress. Under this system, 

Congress must have the fi nal word as to how much money can be spent by a given agency or on a given program. 

Congress generally does this through the making of 

appropriations and by specifi cally designating, or “earmarking” parts of general appropriations as maximum 

and/or minimum amounts for particular purposes.

ANTIDEFICIENCY ACT

In 1870, 1905, and 1906, Congress passed the laws collectively known as the Antidefi ciency Act15 (ADA) as 

a result of the obligation and spending of federal funds 

by executive branch agencies beyond their own budget 

estimates. They did so in the expectation that Congress 

would eventually make defi ciency appropriations to pay 

for the needs of the departments, even when such expenditures exceeded estimates.

The ADA prohibits involving the government in a contract or obligation for the payment of money before an 
28 http://www.cs.amedd.army.mil/amedd_journal.aspx

appropriation is made unless authorized by law. It prohibits over-obligating an appropriation. The ADA is the 

principal law designed to protect Congress’ power of the 

purse. It is the only fi scal statute that includes both civil 

and criminal penalties for violation.

The ADA consists of 4 major provisions:

1. An offi cer or employee of the United States may 

not make or authorize an expenditure or obligation that 

exceeds an appropriation. In other words, the agency cannot spend more than has been appropriated by 

Congress.

2. An offi cer or employee of the United States may 

not make or authorize an expenditure or obligation in 

advance of an appropriation, unless authorized by law. 

In other words, money cannot be spent until it is legally 

available.

3. An offi cer or employee of the United States may not 

accept voluntary services or employ personal services exceeding those authorized by law, except to save human 

life or prevent property damage. In other words, the government cannot receive services without paying for them.

4. An offi cer or employee of the United States may not 

make or authorize an expenditure or obligation that exceeds an apportionment or reapportionment, or in excess 

of the amount specifi ed in a formal subdivision of funds 

in accordance with agency regulations. In other words, 

more money cannot be spent than has been identifi ed for 

a command in a funding authorization document.

VOLUNTARY SERVICES

Title 31 USC §1342 prohibits the acceptance of voluntary services without specifi c statutory authority. The 

purpose of the prohibition is to preclude situations 

which might generate future claims for compensation 

and which might exceed an agency’s available funds. 

The Government Accountability Offi ce has frequently distinguished the acceptance of voluntary services 

from the acceptance of “gratuitous services” where it is 

clearly established by written agreement or by statute 

that no compensation is due or expected. However, the 

ADA is not the only constraint on voluntary services. If 

the work to be performed would normally be performed 

by the agency with its own personnel and appropriated 

funds, acceptance of “free” services to perform the same 

work would impermissibly augment the agency’s appropriation. That is why it was necessary that the services 

not be ones that the agency would normally perform or 

fund, or, in the alternative, that specifi c statutory authority permit acceptance of the services. Some exceptions 

to the voluntary services prohibition which have been 

recognized by statute over the years include voluntary 

services in support of alternative dispute resolution; student intern programs; and voluntary services in support 

of medical care, museums, natural resources programs, 

and family support activities. In addition, the statute itself allows the acceptance of voluntary services for bona 

fi de emergencies involving protection of human life or 

property and which are not part of the agency’s regular 

functions.

VIOLATIONS OF THE ANTIDEFICIENCY ACT

When an organization within the Army believes a potential ADA violation has occurred, it will submit an 

initial report, usually called a “fl ash report,” to the Assistant Secretary of the Army for Financial Management 

and Comptroller (ASA(FM&C)). This initial report is 

informal and merely sets forth the factual circumstances that led to the belief that a potential ADA violation 

occurred. If ASA(FM&C) determines that a further factual inquiry is warranted, a preliminary ADA review is 

conducted.16 The preliminary report resulting from this 

review is submitted to ASA(FM&C), which, in consultation with the Army Offi ce of General Counsel (OGC), 

determines whether an actual ADA violation has occurred and a formal investigation is required.

Where a formal investigation is warranted, an ADA investigator is assigned. The investigator has been trained 

in conducting ADA investigations and typically is from 

outside the activity under investigation. The investigator’s role is to determine the event that caused the potential violation, the responsible individual(s), actions 

required to correct the violations, and action(s) taken 

to ensure that a similar violation does not occur in the 

future.

The formal investigation is intended to provide the investigator with the necessary facts in order to write the 

formal report. Using the preliminary report as a starting 

point, the investigator will determine what information 

is missing or what areas require a more in-depth examination in order to accomplish that task. The investigator 

will interview those involved in the transaction and carefully review the documentary evidence in order to trace 

and document the transactions, decisions, and circumstances that may have led to the violation. During this 

time, careful coordination with ASA(FM&C), as well as 

with counsel, will help the investigator maintain focus 

and not be drawn into unproductive lines of inquiry.

The formal report is submitted to ASA(FM&C) which 

obtains Army OGC review and coordinates with other 

FISCAL LAW OVERVIEW
 January – March 2012 29

THE ARMY MEDICAL DEPARTMENT JOURNAL

involved functional areas as appropriate. The fi nal report is then submitted to the Under Secretary of Defense (Comptroller), who then submits it to the President, 

through the Director of the Offi ce of Management and 

Budget, the President of the Senate, the Speaker of the 

House of Representatives, and the Comptroller General.

If at any time during the investigation it appears that 

a criminal violation may have occurred, the investigation is stopped and the matter referred to the US Army 

Criminal Investigation Command (USACIDC). While 

rare, such referrals do occur. If the facts indicate knowing and willful violations, the case will be referred to the 

Department of Justice (or the appropriate United States 

Attorney) for possible prosecution.

The DoD Financial Management Regulation requires 

that the person or persons who are named as responsible for the violation be administratively disciplined.17

This discipline is administered on a case-by-case basis, 

taking into account the nature and seriousness of the offense, and the record, experience, and degree and level 

of responsibility of the person or persons responsible. 

For civilian employees, administrative discipline may 

range from a written reprimand or admonishment to removal from offi ce. Military personnel may be subject to 

appropriate administrative discipline or to action under 

the Uniform Code of Military Justice.18

CONCLUSION

Fiscal law is a complex subject resulting from years of 

interaction between laws, policies, and judicial opinions 

focusing on the authority of Congress to use taxpayer 

funds. This article has attempted to identify the main 

issues that every leader, manager, or employee should 

know. A fi rm understanding of these issues can ensure 

proper fi nancial management, avoidance of violations of 

the Antidefi ciency Act,15 and possible disciplinary actions. In the fi nal analysis, fi scal law is about spending 

the citizens’ money for the appropriate purpose, during 

the appropriate time, and in the appropriate amount.

REFERENCES

1. US Const Art 1, §9.

2. , 426 US 317,321 (1976). United States v MacCollom

3. 31 USC §1301.

4. Secretary of Interior, 34 Comp Gen 195,196 (1954).

5. Internal Revenue Serv Fed Credit Union-Provision of Automatic Teller Machine, 66 Comp Gen 

356,359 (1987).

6. Department of Defense Financial Management 

Regulation 7000.14-R. Vol 2A. Washington, DC: 

Offi ce of the Under Secretary of Defense (Comptroller); October 2008: para 010201.B. Available at: 

http://comptroller.defense.gov/fmr/02a/02a_01.pdf.

7. Department of Defense Financial Management Regulation 7000.14-R. Vol 2A. Washington, DC: Offi ce 

of the Under Secretary of Defense (Comptroller); 

October 2008: para 010201.D.2.b. Available at: http://

comptroller.defense.gov/fmr/02a/02a_01.pdf.

8. Appendix A, Expense/Investment Criteria. In: 

DFAS-IN Manual 37-100-03. Indianapolis, IN: 

Defense Finance and Accounting Service; 2003: 

sec D.3.c, D.6.A. Available at: https://dfas4dod.

dfas.mil/centers/dfasin/library/regs.htm.

9. Department of Defense Financial Management 

Regulation 7000.14-R. Vol 2A. Washington, DC: 

Offi ce of the Under Secretary of Defense (Comptroller); October 2008: para 010201.D.1.f.

10. 10 USC §127(a).

11. Comptroller General Decision B-130815, Contracts-Continuing Supply Contracts-Appropriations-Obligation-Bona Fide Need. Washington, 

DC: US Government Accountability Offi ce; September 3, 1957. Available at: http://redbook.gao.

gov/7/fl 0030231.php.

12. 10 USC §2410a.

13. 41 USC §253l.

14. Comptroller General Decision B-317636, Severable 

Services Contracts. Washington, DC: Government 

Accountability Offi ce; April 21, 2009. Available at: 

http://www.gao.gov/decisions/appro/317636.htm.

15. 31 USC §§1341-1342, 1517.

16. Preliminary Reviews of Potential Violations. In: 

Department of Defense Financial Management 

Regulation 7000.14-R. Vol 14. Washington, DC: US 

Dept of Defense; November 2010:chap 3. Available 

at: http://comptroller.defense.gov/fmr/14/14_03.pdf.

17. Antidefi ciency Act Violations. In: Department 

of Defense Financial Management Regulation 

7000.14-R. Vol 14. Washington, DC: US Dept of 

Defense; November 2010:chap 9. Available at: 

http://comptroller.defense.gov/fmr/14/14_09.pdf.

18. 64 Stat 109, 10 USC, chap 47.

AUTHORS

CPT Lozada-Leoni is Assistant Staff Judge Advocate, 

US Army Medical Command, Fort Sam Houston, Texas.

Mr Deaver is Chief, Contract and Fiscal Law Division, 

US Army Medical Command, Fort Sam Houston, Texas.

MAJ Topinka is Deputy Staff Judge Advocate, US Army 

Medical Command, Fort Sam Houston, Texas.
30 http://www.cs.amedd.army.mil/amedd_journal.aspx

INTRODUCTION

The Department of Defense Third Party Collection Program (TPCP) has been around for 20 years now.1,2 Authorized by Congress, it allows the military services to 

recoup expenses for medical care provided to nonactiveduty benefi ciaries when they have other health insurance. 

Often this program is confused with the Medical Affi rmative Claims Program,3

 which seeks to recover money 

from third parties (not necessarily an insurance company) when any benefi ciary seeks medical care because 

of the “third person’s” action. The TPCP seeks recovery 

for any medical care given to any nonactive-duty benefi ciary any time they have other insurance. The monies collected from the insurance companies are directed 

to the medical treatment facility (MTF) providing the 

care.4

 This can be a tremendous windfall to the MTF, 

especially in these fi scally challenging times. The hospital commanders may use this money to enhance patient 

care in a variety of ways. The total amount recouped 

by the Army has averaged around $100 million a year. 

Although that may seem like a lot of money, many think 

there is an opportunity to collect much more, and with 

good reason. First of all, our billing software program, 

Third Party Outpatient Collection System (TPOCS) is 

woefully out-of-date and not user-friendly.5

 It is also 

scheduled be removed from service in October 2013. 

At that point, the TRICARE Management Activity will 

end fi nancial support for TPOCS. The Army Medical 

Command (MEDCOM) Chief of Staff and the Patient 

Administrative Division, along with many others, see 

this as a great opportunity for change.

THE PROBLEM

Unlike the 1960s and 1970s, when the military was 

on the leading edge of technology, today we often lag 

behind our civilian counterparts. In the area of medical billing, we are very far behind. While the medical 

industry has moved totally to electronic revenue cycle 

(billing and bill paying), many of our MTFs are still 

preparing hand-written notations of TPOCS-generated 

bills, stuffi ng envelopes, mailing them, and then waiting 

for a check to arrive in the mail, often a 45 to 60 day process. Meanwhile, our civilian counterparts e-bill their 

patient’s insurance companies and get verifi cation of 

coverage and electronic fund transfer payments within 

a few days of the initial encounter. 

With improved computer applications come improved 

and streamlined processes. The commercial sector’s 

programs can scan and catch many errors in the billing 

process before the bill is sent to the insurance company. 

Additionally, initial responses to insurance company 

questions or rejections can be automatically embedded 

in the program. 

Billing the insurance company does not mean it will 

automatically pay. For years the MEDCOM legal community has reviewed the MTF-generated medical bills 

disputed by insurance companies. This normally occurs 

after the MTF’s billing offi ce has unsuccessfully tried 

to collect for 120 to 180 days.6

 The assumption is that 

the insurance company is legally obligated to pay, but 

refuses to do so. Unfortunately, this is not always the 

case. Often we see “disputed bills” which are based on 

an MTF clerical error, a program upgrade or change at 

an insurance company (which causes their computer 

not to recognize the Army as a proper payee), or other 

issues related to the fact we introduce hand-generated 

bills into a totally automated process. As a result, our 

“legal intervention” is not legal-oriented at all, it consists 

of performing the research and making phone calls for 

which the billing personnel do not have time. There are 

some existing legal issues that our legal counsel needs 

to address, but often in our current manual process 

those issues are buried under so many piles of paper 

that we cannot fi nd them. This is all the more reason for 

change.

THE FUTURE

The MEDCOM leadership has authorized each of the 

5 regional commands to come up with their own billing solution* to replace the TPOCS billing system.7

 The 

commands are expected to have their solution identifi ed by the end of 2011. This short and tight timeline is 

driven by the rapidly approaching date when TPOCS 

will no longer be around to process our medical bills. As 

Transitioning Third Party Collections

 from Third World Processes

Jackey D. Nichols, JD

*The policy supporting this action is currently under review within MEDCOM. As of this writing, there has been 

no offi cial determination to change this policy.
 January – March 2012 31

such, it appears most regions will rely on a commercial 

vendor to supply the “software solution” to the demise 

of TPOCS.

CONCLUSION

Once MEDCOM regional staffs are manned with a Uniform Business Offi ce* and legal counsel, we expect they 

will provide regional oversight over all the MTFs in their 

entire region’s TPCP process.8

 Improved automation 

will allow trend analysis and identifi cation of individual 

insurance company problems, in addition to a markedly 

shorter revenue cycle. In the end, our dedicated Uniform 

Business Offi ce billing personnel will be able to join the 

rest of the country’s medical billers with the latest and 

greatest tools instead of stubby pencils and legal tablets, 

thereby moving the Third Party Collection Program out 

of the third-world processes and into the 21st century. 

The result of this effort will put more dollars in the coffers of those MTFs whose commanders embrace, enforce, and support the Third Party Collection Program.

REFERENCES

1. Health Care Services Incurred on Behalf of Covered Benefi ciaries: Collection From Third-Party 

Payers, 10 USC §1095.

2. Medical And Dental Care, Procedures for Charging Fees for Care Provided to Civilians; Retention 

and Use of Fees Collected, 10 USC §1079b.

3. Third Party Liability for Hospital and Medical Care, 

Recovery by United States, 42 USC §§2651-2653.

4. Collection from Third Party Payers of Reasonable 

Charges for Healthcare Services, 32 CFR §220, 

(2010).

5. Offi ce of The Surgeon General. Memorandum: 

Third Party Collection Program (TPCP) Legal 

Follow-up Procedures. Fort Sam Houston, TX: US 

Army Medical Command; October 7, 2009. OTSGMEDCOM Policy Memo 09-081.

6. Department of Defense 6010-15-M: Medical 

Treatment Facility Uniform Business Offi ce (UBO) 

Manual. Washington, DC: US Dept of Defense; 

April 7, 2008. Available at: http://www.dtic.mil/

whs/directives/corres/pdf/601015m.pdf. Accessed 

November 15, 2011.

7. Offi ce of The Surgeon General. Memorandum: Regional Uniform Business Offi ce (UBO) Implementation. Fort Sam Houston, TX: US Army Medical 

Command; July 28, 2010. OTSG-MEDCOM Policy 

Memo 10-051.

8. Offi ce of The Surgeon General. Memorandum: 

Third Party Collection Program (TPCP) Procedures. Fort Sam Houston, TX: US Army Medical 

Command; October 19, 2011. OTSG-MEDCOM 

Policy Memo 11-087.

AUTHOR

Mr Nichols is Supervisor Attorney Claims Section, 

Office of the Staff Judge Advocate, US Army 

Medical Command, Fort Sam Houston, Texas.

*The Uniform Business Offi ce consolidates collection 

processing, analysis, and reporting of accounting related 

activities under one umbrella. Third party collections program, medical service accounts, and medical affi rmative 

claims are the 3 services provided by the offi ce.
32 http://www.cs.amedd.army.mil/amedd_journal.aspx

INTRODUCTION AND BACKGROUND

Technology transfer involves sharing resources (eg, expertise, materials, personnel, or money) between entities 

to attempt technology discovery and/or improvement. 

The ultimate goal of technology transfer for US government laboratories is to meet their internal research and 

development missions. We are involved in technology 

transfer because we recognize the multidisciplinary requirements and complexity of today’s scientifi c, engineering, regulatory, and commercial endeavors, and the 

inherent limitations of any one organization, including 

the US Government, to do it all. 

Because of the importance of technology transfer to 

technological innovation and national economic wellbeing,1

 Congress has made it national policy that technology transfer is a responsibility of federal laboratory 

science and engineering professionals.2

 A great deal of 

technology transfer takes place informally, through scientifi c publications and meetings.3

Army medical centers have been involved in technology 

transfer activities as part of the Clinical Investigation 

Program (CIP) for many years. The Clinical Investigation Regulatory Offi ce (CIRO), which oversees the CIP 

across the US Army Medical Command (MEDCOM), 

was designated a “federal laboratory” in the early 1990s. 

As a federal laboratory, the Director, CIRO was delegated authority to enter into technology transfer agreements. For internal policy reasons, CIRO, which was 

headquartered at Fort Sam Houston until 2010, chose 

to limit its exercise of technology transfer authority to 

research activities needing protocols within the CIP. 

In October 2010, CIRO came under the command and 

control of US Army Medical Research and Materiel 

Command (USAMRMC) and relocated to Fort Detrick, 

Maryland. CIRO now operates as a USAMRMC 

laboratory for technology transfer purposes and 

has expanded its exercise of authority to include all 

technology transfer activities within the medical 

treatment facilities (MTFs).

The USAMRMC Offi ce of the Staff Judge Advocate 

(OSJA) supervises and manages the administration, 

control, and coordination of all patent, copyright, and 

trademark activities within MEDCOM, as well as serving as the technology transfer legal technical channel 

supervisor for all MEDCOM units. Intellectual property 

licensing activities are carried out by the USAMRMC 

Offi ce of Research and Technology Applications, which 

is located with and integrated into the OSJA.

Historically, researchers at MTFs who wished to enter 

into non-CIP cooperative research and development 

agreements and/or material transfer agreements ended 

up getting advice and assistance from the USAMRMC 

OSJA, because their local legal offi ces had no experience with these non-CIP agreements. In addition, all 

such agreements had to be staffed to and signed by The 

Surgeon General (TSG), because TSG was the only other designated authority or “laboratory” available. This 

greatly complicated and delayed the process. CIRO’s 

role was expanded to include all technology transfer 

actions within the MTFs to encourage more non-CIP 

research collaborations by simplifying and speeding up 

the process of entering into appropriate agreements.

The purpose of this article is to encourage additional 

non-CIP technology transfer activities within Army 

MTFs. It briefl y explains the 3 principal technology 

transfer mechanisms available to MTFs and their inventors/researchers for collaborations with nonfederal parties. Following that, examples of non-CIP collaborations 

are provided. 

THE LEGAL MECHANISMS

The 3 principal mechanisms for research collaborations 

are called cooperative research and development agreements (CRADAs), material transfer agreements (MTAs), 

and nondisclosure agreements (NDAs). Authority for 

federal laboratories4,5 to enter into CRADAs, MTAs, and 

NDAs comes from the same statutory source, the Federal Technology Transfer Act of 1986 (FTTA),6 which 

Expanding Use of Technology Transfer

 Mechanisms Within the Army’s

 Medical Treatment Facilities

Robert L. Charles, JD
 January – March 2012 33

left it to the various federal agencies doing research 

and development (R&D) to designate those laboratories. 

While that statute speaks exclusively of CRADAs, it is 

important to recognize that MTAs and NDAs are just 

different types of CRADAs.

The fact that the CRADA law allows for a wide variety 

of collaborative R&D contractual arrangements often 

proves to be a mental hurdle to those only familiar with 

the more highly regulated and structured nature of government procurement practice under the Federal Acquisition Regulation (FAR).7

 However, Congress intended 

this new authority to be used by federal laboratories in 

a more fl exible, industry-friendly way than is typical for 

government procurement practices. The FTTA

authorizes a broad range of cooperative research and 

development arrangements where there is a mutual 

interest between the laboratory mission and other levels 

of government or private sector organizations.8

To understand how NDAs fi t under CRADA authority, 

one need only look through the statutory defi nition of a 

CRADA.9

 Under that defi nition, a CRADA is any agreement between appropriate parties to share authorized resources “...toward the conduct of specifi ed research and 

development efforts...” (emphasis added). The defi nition 

can be reasonably and fairly read to subsume both agreements for the precollaboration provision of resources in 

anticipation of a possible R&D collaboration agreement, 

as well as R&D collaboration agreements themselves. 

An NDA is an agreement toward (ie, in the direction 

of, in anticipation of) the conduct of specifi ed research 

and development efforts. This interpretation would not 

be reasonable had Congress more narrowly defi ned a 

CRADA to be “an agreement...to conduct specifi ed research and development.”

Essentially, CRADAs, MTAs, and NDAs are research 

and development agreements that are distinguished from 

each other by the extent and nature of the collaborative 

activities that take place under them. They represent a 

spectrum of collaboration, and the line between where 

one mechanism stops and the next starts can easily get 

blurred.

As an example of this blurring, typically, MTAs and 

CRADAs have nondisclosure requirements written within them. As another example, a typical agency boilerplate may be labeled, “CRADA for Material Transfer.” 

Legal counsel should recognize that potential collaborators may insist on the use of their own templates, which 

will not use the labels that the government normally 

uses, but are otherwise quite legally acceptable. From 

the legal viewpoint, we are concerned that the intended 

activities fi t within the legal bounds authorized, rather 

than what any particular document is called.

As a laboratory of USAMRMC, CIRO follows the policies and procedures set forth in USAMRMC Regulation 

70-57.

10 Per that regulation, for those agreements that 

utilize its attached formats/templates, no further legal 

review is required by the USAMRMC OSJA before signature by the Director, CIRO. In practice, CIRO personnel frequently seek guidance and review as proposed 

agreements are being negotiated. While legal review at 

the USAMRMC level may not always be required, local 

policy at the MTF may require local JAG review.

COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENTS

CRADAs are non–FAR-based R&D collaboration contracts that permit a wide variety of resource exchanges 

between the parties. To carry out the collaborations, 

federal laboratories may provide “personnel, services, 

facilities, equipment, intellectual property, or other resources with or without reimbursement (but not funds 

to nonfederal parties).” The nonfederal parties may provide the federal laboratories any of those resources, plus 

funds. (Since we are looking at non-CIP collaborations, 

the provision of Army Regulation 40-3811 that prohibits 

the use of funds or other revenues provided by business 

groups operating for profi t does not apply. The laboratories may accept, retain, and use these extramural resources without violating the Augmentation of Appropriations prohibitions.*)

Unlike FAR-based contracts or federal grants, no competition requirement exists for laboratories in choosing 

their CRADA collaborators. For researchers at MTFs 

contemplating collaborations with nonfederal parties, 

signifi cant interrelated consequences fl ow from this:

 First, MTF researchers may and must communicate 

with potential collaborating parties to discuss possible collaborations.

 Second, the MTF researcher should ensure that 

he/she does not share any government-owned 

proprietary information, nor receive any of the 

*Augmentation is a concept of appropriations law that is derived from statute, specifi cally 31 USC §3302(b) (miscellaneous 

receipts rule) and 31 USC §1301(a) (restricting the use of appropriated funds to their intended purposes). The Government 

Accountability Offi ce has held that an agency may not augment 

its appropriations from outside sources without specifi c statutory 

authority. The objective of the rule against augmentation of appropriations is to prevent a government agency from undercutting 

the Congressional power of the purse by exceeding the amount 

Congress has appropriated for that activity.
34 http://www.cs.amedd.army.mil/amedd_journal.aspx

collaborator’s proprietary information, unless and 

until an NDA has been entered. 

 Third, if the MTF researcher has an idea for an invention or has been working on a prototype for an 

invention, the researcher is required to take steps 

to help the Army protect any potential intellectual 

property,12 and should do so before sharing any specifi c information with the non-federal party. That is 

most easily done by fi ling an invention disclosure.* 

As protection of intellectual property rights is often 

an essential element to successful commercialization, those rights are addressed in the CRADA statute and become an important part of the negotiations and agreement between the parties.13

MATERIAL TRANSFER AGREEMENTS

As noted earlier, an MTA (also known as a CRADA for 

material transfer) is authorized under the same legislation as a CRADA. As stipulated by USAMRMC Regulation 70-57,

10 it should:

be used when (1) a party will be providing equipment, 

materiel, and/or information to the other party; (2) the 

receiving party will screen, test, evaluate, or otherwise 

use the equipment, material, and/or information, and 

may be required to provide a report of results to the party 

providing the equipment, material, and/or information; 

and (3) the parties are not bound to further collaboration 

unless another document providing for such collaboration 

is executed. Under a CRADA for Material Transfer, a 

USAMRMC laboratory may receive reimbursement for 

the cost of the material(s) it provides, or for the costs 

associated with screening, testing, or evaluating the 

equipment, material, and/or information and providing 

a report of results.10(p3)

Similar to CRADAs, MTAs for activities within MTFs 

must be signed by the Director, CIRO.

NONDISCLOSURE AGREEMENTS

A common misunderstanding is that the government 

may not protect its own proprietary or commercial information from disclosure under a Freedom of Information Act (5 USC §552) request. In fact, federal courts 

considering the issue have provided very broad protection to such information where there are concerns that 

requiring disclosure would act to undermine the ability of federal laboratories to successfully perform their 

technology transfer mandate.14,15

In the private sector, NDAs, also known as confi dential 

disclosure agreements, are commonly used as a prelude 

to entering into more substantive business discussions 

about a potential agreement. They are intended as a legal means to protect from public disclosure proprietary 

information such as recent unpublished research results; 

fi led, but not issued patent applications; and confi dential 

commercial information, which are provided to the potential partner for limited review, inspection, or preliminary testing. NDAs help each party evaluate what the 

other can bring to the negotiation table or lab bench that 

may be of interest. The promises made in an NDA serve 

to induce parties to share information.

In the realm of federal technology transfer, the issue of 

NDAs commonly arises as a prelude to negotiations for 

a potential CRADA. Each party wants some written assurance that the information it plans to share with the 

other party will not be improperly divulged. Federal law 

prohibits and makes it a crime for a federal employee to 

wrongly disclose a collaborator’s or potential collaborator’s proprietary information.16-19

To address the need/desire of potential collaborators 

for assurance of confi dentiality of their proprietary information before sharing it with government personnel, 

government counsel has drafted some boilerplate “acknowledgement of nondisclosure obligations,” which 

are available in the US Army Medical Command Legal 

Deskbook (2008). These documents fall short of the creation of any contractual obligation on the government’s 

part, and have the added benefi t of allowing signature by 

the specifi c science and engineering personnel who are 

given access to the relevant information.

Individual government employees/researchers do not 

have authority to bind the government and, therefore, 

should not sign NDAs on behalf of a government entity. 

However, as NDAs are a type of CRADA, the Director, 

CIRO, can and does routinely sign these documents on 

behalf of MTF researchers. Government employees may 

acknowledge by signature having read and understood 

such documents. 

EXAMPLES OF NON-CIP COLLABORATIONS

A Better Wheelchair

MAJ Art Yeager is an occupational therapist currently 

assigned to Reynolds Army Community Hospital. While 

working with patients who used manual (nonelectric) 

wheelchairs, he saw 2 practical problems, both caused 

by gravity. First, when his patients were going up hills, 

which takes considerable strength, current wheelchair 

technology made it very diffi cult and awkward to stop 

without rolling or falling backwards. Second, when those 

*Forms available at: https://technologytransfer.amedd.army.mil/ [Note: use the “For Our Inventors” button]

EXPANDING USE OF TECHNOLOGY TRANSFER MECHANISMS WITHIN THE ARMY’S MEDICAL TREATMENT FACILITIES
 January – March 2012 35

THE ARMY MEDICAL DEPARTMENT JOURNAL

same patients were going downhill, current technology 

did little to assist the patients to adjust for the force of 

gravity, ie, slow the wheelchair to the desired speed.

MAJ Yeager, a former aviator, conceived 2 ideas to address these practical problems: fi rst, a gravity-reacting 

antirollback brake, then a gravity-reacting automatic 

speed pacer. Working with patent counsel in the Legal 

Offi ce at USAMRMC, MAJ Yeager’s conceptions were 

fi led as patent applications. Needing a private sector 

partner to further develop these technologies for potential commercialization, MAJ Yeager reached out under 

an NDA to Accessible Designs, Inc (ADI), a San Antonio-based designer and manufacturer of cutting-edge 

products for people with disabilities.

Working with the USAMRMC Offi ce of Research and 

Technology Applications, the Army and ADI established a CRADA to design, engineer, and fabricate a 

prototype wheelchair that incorporates MAJ Yeager’s 

technologies into ADI’s own patented technology. The 

CRADA provides for ADI to seek further research and 

development funding, as well as to coordinate with outside organizations for prototype testing and evaluation. 

MAJ Yeager will continue to participate with ADI in the 

development of these important technologies.

Grants from Nonfederal Entities

Many for-profi t and nonprofi t entities provide grants for 

medical research activities that fall outside the scope of 

the CIP. These grants are contractual agreements that 

generally fi t within the legal defi nition of a CRADA: the 

grantor organization provides the federal laboratory (in 

this case, the MTF as part of CIRO) money in exchange 

for the laboratory’s agreement to carry out the specifi ed research and provide a written report to the grantor 

and/or prepare a publication of the results. Personnel 

at MTFs have applied for and received such grants to 

perform research at their facilities. (Note: researchers 

should obtain approval from local authorities before 

submitting the grant application to be sure that the MTF 

will support the research should the grant be awarded.)

CIRO can sign the award documents on behalf of the 

Army. The relevant MTF’s resource management offi ce 

can accept the grant funds, which can then be spent, for 

example, to buy the supplies or pay the contractors to 

carry out the work, as needed. 

Practice Makes Better

The AMEDD is at the forefront of national efforts to create simulators to provide its healthcare providers more 

and better opportunities to train in medical procedures 

before undertaking the procedures on patients, and to 

sharpen the skills of those already on the front lines of 

care. One example is the Mobile Obstetric Emergencies Simulator (MOES) system developed by LTC Shad 

Deering et al at the Madigan Army Medical Center. The 

system, along with its NOELLE simulator (Gaumard 

Scientifi c, Miami, FL), has been exclusively licensed by 

the Army to Gaumard. Practicing with MOES builds 

team and technical competency for obstetric emergencies. The need for such simulators throughout the medical community is obvious. Efforts by MTFs and their 

associated simulation centers to collaborate with nonfederal hospitals, academia, and the private sector to 

further develop such technologies is in everyone’s best 

interest. NDAs and CRADAs are the mechanisms of 

choice to develop such relationships.

USEFUL USAMRMC POINTS OF CONTACT

CIRO: 301-619-3069

Patent Counsel and for other IP issues:

 301-619-7808

Office of Research and Technology 

Applications:

 301-619-6975

 https://technologytransfer.amedd.army.mil

Technology Transfer legal counsel:

 301-619-7663

REFERENCES

1. 15 USC §3701.

2. 15 USC §3710(a)(2).

3. Charles RL. Federal technology transfer: CRADAs, PLAs, and other mechanisms. US Army Medical Command Legal Deskbook. Fort Sam Houston, 

TX: US Army Medical Command; 2008.

4. 15 USC §3710a(d)(2).

5. Department of Defense Instruction 5535.8: DoD 

Technology Transfer (T2) Program. Washington, 

DC: US Dept of Defense; May 14, 1999.

6. Federal Technology Transfer Act, 15 USC §3710a 

(2004).

7. Federal Acquisition Regulation, 48 USC Part 27.3 

(2004).

8. , 99th Cong, 2nd Sess (1986). Senate Report No. 383

9. 5 USC §3710a(d)(1).

10. USAMRMC Regulation 70-57: Military Research, 

Development, and Acquisition; Military-Civilian 

Technology Transfer. Fort Detrick, MD: US Army 

Medical Research and Materiel Command; February 8, 2007.
36 http://www.cs.amedd.army.mil/amedd_journal.aspx

11. Army Regulation 40-38: Clinical Investigation Program. Washington, DC: US Dept of the Army; September 1, 1989: para 3-6(a)(8).

12. . Army Regulation 27-60: Intellectual Property

Washington, DC: US Dept of the Army; June 1, 

1993: para 2-5a.

13. 15 USC §3710a(b)(1)-(3)(D).

14. , 917 F Delorme Publishing Company, Inc v NOAA

Supp 867 (D Maine 1996). 

15. Public Citizen Health Research Group v NIH and 

Johnson and Johnson, 209 F Supp 2d 37 (D DC 

2002).

16. Freedom of Information Act, 5 USC §552(b)(4).

17. Executive Order 12600, Predisclosure Notifi cation 

Procedures for Confi dential Commercial Information, 52 Federal Register 23781 (1987). Available

at: http://www.archives.gov/federal-register/codifi ca

tion/executive-order/12600.html. Accessed November 1, 2011.

18. Trade Secrets Act, 18 USC §1905 et seq.

19. Economic Espionage Act of 1966, 18 USC §1831.

AUTHOR

Mr Charles is Chief, Medical Research Branch, Offi ce of 

the Staff Judge Advocate, US Army Medical Research 

and Materiel Command, Fort Detrick, Maryland.

EXPANDING USE OF TECHNOLOGY TRANSFER MECHANISMS WITHIN THE ARMY’S MEDICAL TREATMENT FACILITIES
 January – March 2012 37

INTRODUCTION

One-way communication between military commands 

and their Soldiers, Family members, civilian employees, 

and the public is going the way of the VHS, the fl oppy 

disk, and the dinosaur. Command policies, safety briefs, 

training calendars, and traditional ways of conveying orders at daily formations, on bulletin boards, or through 

word of mouth is taking a back seat to more modern 

methods and mediums of communication. Soldiers, 

Family members, employees, and the public no longer 

just listen, and commands and commanders no longer 

just speak and expect to be heard; they now engage in a 

conversation. This conversation is not always a physical 

face-to-face exchange, but an increasingly virtual one 

over the internet through the use of “social media” forums like Facebook, Twitter, YouTube, and Flickr.

What is said on the parade ground is now posted on Facebook. What Soldiers and/or units do during training, 

in the fi eld, or in the combat zone is now broadcast on 

YouTube. What Soldiers discussed at the chow hall or 

in the barracks now appears on Twitter. Comments are 

now memorialized on the internet, through posts, video, 

or audio, and all of it available to millions of users with 

the simple click of a mouse. Social media can be about 

engaging in conversation, changing the conversation, 

directing the conversation, listening to the conversation, 

responding to the conversation, starting the conversation, or just getting the word out.

Historically, commanders at all levels were able to determine the parameters of the relationship they had 

with their Soldiers and the Soldiers had with them. 

Now, because of the prevalence of social media and 

the Army’s increasing use and reliance on it, Soldiers, 

Families, Army civilian employees, and the public are 

the ones who increasingly defi ne how the unit or commander is perceived and the direction and course of their 

relationship.

PURPOSE

This article is an overview of social media and some of 

the many benefi ts, concerns, and legal issues to consider 

when deciding whether or not to create and maintain 

a government external offi cial presence (EOP) within 

the social media world. In addition, it is the intent of 

this article to provide commanders, units, and organizations within the Army Medical Command (MEDCOM) 

tips on how to successfully ensure editorial control of 

your EOP. This article was not written with the intent 

of being an analysis of MEDCOM social media sites or 

as an in-depth report on the legal authority, laws, and 

guidance covering the use of social media. For guidance 

or details on how to set up a social media site, see The 

Army Social Media Handbook 20111

 which contains 

guidance, many tips, and contact information to assist 

organizations with the implementation and maintenance 

of a social media page.

OVERVIEW

In order to fully grasp the idea of social media, it may 

help to parse the words. Media is the plural form of the 

word “medium,” which in this context is a means of 

communication, such as radio, newspaper, the internet, 

or television that reach and infl uence people widely. Social media is therefore a social means of communication, 

in a 2-way environment as opposed to a one-way format. 

In the context of the internet: a website that does not 

simply present information, but allows for interaction 

while presenting information. This interaction can be as 

simple as asking for feedback or letting you vote on an 

issue, or it can be as complex as target advertising based 

on websites you previously visited or things purchased 

in the past.

Social media is a very broad term and, depending upon 

with whom you are speaking and for what purpose they 

engage in or use social media platforms, you may get a 

variety of defi nitions. For our purposes, however, social 

media usually refers to a large range of websites that 

allow online communications in which individuals shift 

fl uidly and fl exibly between the roles of audience and 

author. Social media can also be defi ned as the content 

created and shared by individuals on the web using 

freely available websites that allow users to create and 

post their images, video, and text information, and then 

share that with either the entire internet or just a select 

group, depending on security or privacy settings.

Social Media: Some Things to Consider

 Before Creating an Online Presence

CPT Adam Jonasz, JAG, USA
38 http://www.cs.amedd.army.mil/amedd_journal.aspx

THE ARMY’S USE OF SOCIAL MEDIA

The Army has long recognized the extensive use of the 

internet and especially social media websites by society at large, but specifi cally Soldiers, Family members, 

potential recruits, and Army civilian employees. The 

Army presence in the social internet environment began 

in 2007 and has been increasing rapidly ever since, with 

EOPs being sponsored/maintained by general offi cers 

and commanders at all levels, including organizations 

down to platoon-size elements.2

The Army quickly recognized the importance of the 

fact that social media provides users the capability to 

rapidly and effi ciently communicate with large numbers of people over a 2-way communications platform 

using multiple media such as audio, video, photo, and 

text. By using existing software platforms or websites 

such as Twitter, Flickr, YouTube, and Facebook, the 

Army can connect and interact with Soldiers, Families, 

Army civilians, and the public with little or no monetary 

investment. Most importantly, the Army is attempting 

to make use of social media platforms to affi rmatively 

communicate the Army message to the public, Soldiers, 

Families, Army civilians, and people all over the world. 

The Army is taking control of the message, creating the 

conversation and listening to what is being said. As of 

October 2010, there were 1,076 registered EOP sites as 

follows: Facebook 713, Flickr 130, Twitter 162, and 71 

on YouTube.2(p3)

On February 25, 2010, Department of Defense (DoD) 

Directive-Type Memorandum (DTM) 09-026 3

 established DoD policy and assigned responsibilities for responsible and effective use of internet-based capabilities, 

including social networking services. The DTM also 

provided basic guidelines for military use of social media, and the use of an EOP. The policy went further by 

clearly stating:

This policy recognizes that Internet-based capabilities 

are integral to operations across the Department of 

Defense.3(p1)

The DTM defi ned internet-based capabilities as:

All publicly accessible information capabilities and 

applications available across the internet in locations 

not owned, operated, or controlled by the Department 

of Defense or the Federal Government. Internet based 

capabilities include collaborative tools such as SNS, 

social media, user generated content, social software, 

e-mail, instant messaging, and discussion forums 

(eg, YouTube, Facebook, MySpace, Twitter, Google 

Apps).3(p1)

It also defi ned external offi cial presence as:

Offi cial public affairs activities conducted on nonDoD sites on the internet (eg, Combatant Commands 

on Facebook, Chairman of the Joint Chiefs of Staff on 

Twitter.)3(p1)

In addition, the Memorandum presented DoD policy as 

follows3(p2):

The NIPERNET* shall be confi gured to provide access to 

Internet-based capabilities across all DoD Components.

Commanders at all levels and heads of DoD Components 

will continue to defend against malicious activity affecting 

DoD networks (eg, distributed denial of service attacks 

intrusions) and take immediate commensurate actions, as 

required to safeguard missions (eg, temporarily limiting 

access to the internet to preserve operations security or to 

address bandwidth constraints.

Commanders at all levels and heads of DoD Components 

will continue to deny access to sites with prohibited content 

and to prohibit users from engaging in prohibited activity 

via social media sites (eg, pornography, gambling, hatecrime related activities).

All use of internet-based capabilities shall comply with 

paragraph 2-301 of Chapter 2 of the Joint Ethics regulation...and the guidelines set forth in Attachment 2 [to the 

DTM].

On March 25, 2010, the Chief Information Offi cer of the 

Army issued a memorandum4

 which addressed establishing, maintaining, and reviewing social media sites, 

as well as operations security (OPSEC) awareness and 

training requirements.

On October 21, 2010, the Secretary of the Army issued 

a memorandum5

 establishing the delegation of authority 

for EOPs to the commanders of all Army commands, 

who may then redelegate the authority to subordinate 

commands, direct supporting units, and fi eld operating 

agencies.

On March 1, 2011, the Deputy Secretary of Defense 

reauthorized Attachment 3 (Responsibilities) of DTM 

09-026,3

 extending the DTM through January 2012 and 

outlining how the NIPERNET should be confi gured to 

allow access to Internet-based capabilities throughout 

the DoD components.

DOD AND DEPARTMENT OF THE ARMY REGULATORY AND

POLICY GUIDANCE ON SOCIAL MEDIA

At this point there are several regulations and directives 

that currently direct the Army’s use of social media. According to the Army Social Media Handbook 2011,

1

 the 

SOCIAL MEDIA: SOME THINGS TO CONSIDER BEFORE CREATING AN ONLINE PRESENCE

*Nonsecure internet protocol router network
 January – March 2012 39

THE ARMY MEDICAL DEPARTMENT JOURNAL

Assistant Secretary of Defense is currently working on 

an all-encompassing policy. Until that policy is issued, 

guidance is found in DTM 09-026 3 ; a June 17, 2009 

memorandum from the Offi ce of the General Counsel 

of the Army7

 which recommended training for creators 

and maintainers of websites, content review for OPSEC, 

and other prohibited information and use disclaimers; 

and the following publications:

 Army Regulation 25-1.

6

 Along with the Chief Information Offi cer (CIO)/G-6, the Chief of Public Affairs oversees and controls content on Army public 

websites. Only offi cial Army information that is releasable and of value to the public may be released 

on these sites. Commanders and organization heads 

are to ensure that the Public Affairs Offi ce and other appropriate designees review and clear web content and format before the content is posted on the 

Internet. The primary responsibility of the CIO/G6 

is managing the Army’s network, to include providing the appropriate amount of bandwidth to allow access to internet-based capabilities across the 

Army networks per DoD policy.

 DA Pamphlet 25-1-1.

8

 Each Army organization that 

establishes a public website must have a clearly defi ned purpose and website plan that supports the 

organization’s mission. All individuals appointed 

as webmasters or site maintainers, reviewers, and 

content managers must complete training and certifi cation, as necessary, appropriate to the duties assigned to them.

 Army Regulation 530-1.

9

 The regulation provides 

guidance to all Army Soldiers, civilians, and contractors to eliminate, reduce, or conceal indicators 

that could result in releasing critical and sensitive 

information. The regulation addresses the review 

requirements for releasing Army or government information through all types of media.

 Army Regulation 360-1.

10 Any offi cial information 

intended for public release that pertains to military matters, national security issues, or subjects of 

signifi cant concern to DoD must be cleared by appropriate security review and public affairs offi ces 

before release. This includes materials placed on 

the internet or released via similar electronic media. The Offi ce of Public Affairs has the authority 

to release information about the Army as a whole; 

commanders below Headquarters, Department 

of the Army level can release information wholly 

within the mission and scope of their respective 

commands.

The Offi ce of the Chief of Public Affairs (OCPA) has 

produced 3 documents to assist commands and organizations with their social media programs. On February 12, 2010, it released a Social Media Best Practices 

(Tactics, Techniques and Procedures) slideshow that 

outlined basic guidelines for public affairs social media 

strategies. On November 1, 2010, OCPA issued a memorandum titled “Standardizing Offi cial US Army External Offi cial Presences,” 11 in an attempt to standardize 

Army-wide EOPs. The OCPA published The Army Social Media Handbook1

 in January 2011, followed by a 

revised, updated version in August 2011.

As OCPA is also responsible for maintaining the Army 

social media registry, it apparently has taken the lead on 

developing policy and monitoring how social media is 

used in the Army. OCPA has also taken center stage in 

the effort to educate commanders and agencies on the 

use of social media and its potential pitfalls.

To establish a social media site, units/commanders must, 

at a minimum, consult the Secretary of the Army Memorandum: “Delegation of Authority–Approval of External Offi cial Presences,” 12 and Attachment 2 (Guidelines For Use Of Internet-Based Capabilities) to DTM 

09-026.3

 Units/organizations must receive command 

approval before establishing an EOP and it must be approved by the release authority (commanding offi cer or 

public affairs) before it can be registered (an EOP must 

be registered). When submitted for approval and registration an EOP plan must contain the following: a point 

of contact with a valid military (.mil) email address, a 

URL to an offi cial Army website, a posted disclaimer 

which identifi es the page as an “offi cial” Army social 

media presence and disclaims any endorsement. The site 

must be clearly identifi ed as offi cial, unlocked and open 

to the public, use offi cial seals, logos, be monitored and 

evaluated by DoD components for compliance with security requirements, and ensure info posted is accurate 

and relevant and does not provide personally identifi -

able information or information not approved for release. 

It is recommended that anyone considering establishing 

an EOP consult their public affairs offi ce for advice and 

guidance. Public affairs plays a prominent role in the 

Army’s use of social media and are constantly updating 

and implementing new ways to assist in the execution of 

Army regulations and DoD guidance.

LEGAL OVERVIEW

An overview of the legal principles that cover government sponsored social media include but are not limited 

to the following: the 1st Amendment to the US Constitution, copyright laws, the The Privacy Act of 1974,13 the 
40 http://www.cs.amedd.army.mil/amedd_journal.aspx

Federal Open Records Act (Federal Records Act of 1950, 

44 USC §§29,31,33), and defamation. Federal agency 

public web pages are required to comply with the provisions of section 508 of the Rehabilitation Act Amendments of 1998 (29 USC §794d). Public web pages must 

be equally accessible to disabled and nondisabled federal employees and members of the public. These legal 

issues should not inhibit or deter any organization from 

using social media to advance the unit mission, however, decision makers should be aware that social media 

does not exist in a vacuum. As a forum of media, many 

of the laws that apply to newspapers, television, radio, 

and magazines also apply to social media. Furthermore, 

when governmental agencies take part in social media, 

laws that relate to government action apply as well.

When a government actor creates a web presence, 

which is a forum for communication, it involves the 1st 

Amendment right to freedom of speech and expression. 

Therefore, the fi rst issue to address is whether or not 

that agency’s web page created a “public forum.” A public forum is a US constitutional law term that describes 

a government-owned property that is open to public 

expression and assembly.14 There are several types of 

public forums, each one expanding the right of public 

expression.

The most open forum is the traditional public forum, 

such as streets or parks that, by long tradition, have been 

devoted to the public for expressive use. In the traditional 

public forum, the government may not impose contentbased restrictions on speech unless they are “necessary 

to achieve a compelling state interest and...narrowly 

drawn to achieve that end.”14 A social media page is unlikely to be designated a traditional public forum, as the 

US Supreme Court has restricted that category to property “historically” used for public expression (eg, public 

square in front of a court house or a municipal park).14

Currently, social media space or the internet do not fall 

within that description. However, with time that may 

change as constitutional interpretation evolves.

The designated public forum, which “consists of property which the state has opened for use by the public 

as a place for expressive activity.” 14 Examples include 

a public university “campus free speech zone” open to 

all speakers, or meeting rooms in a public library which 

is available to all members of the public. A designated 

public forum requires the government’s clear intent to 

open one, however, it could be inferred based on the 

government’s policies and practice. What the Supreme 

Court has termed the limited forum could be considered a subcategory of the designated public forum. The 

limited public forum is a place or space designated for 

speech by “certain groups” or for “discussion of certain 

topics.” The government’s establishment and application 

of content parameters in the limited public forum must 

be “reasonable in light of the purposes of the forum,” 

and viewpoint neutral.14

The nonpublic forum refers to government property that 

“is not by tradition or designation a forum for public 

communication.” 14 In a nonpublic forum, deference will 

be given to the government actor in deciding who may 

speak and what shall be said. The government may impose time, place, and manner restrictions, and may exclude speakers as long as that exclusion is reasonable.14

The last category is government speech. The concept 

behind this category is that governments must speak in 

order to govern, and they do so through agents whom 

they hire, pay, recruit, or subsidize. The government 

is permitted to use media to communicate its message 

and, when it does so, it does not have to include opposing viewpoints or allow for an exchange of idea or any 

interaction.14 The ballot box is where the public has the 

opportunity to respond.

The type of public forum becomes important when deciding issues concerning whether defamatory or vulgar 

material would be protected by the 1st Amendment, 

what comments can be removed, what information may 

be retained or collected, and what information may be 

tracked. A question for commanders in regards to a 

social media platform is whether a commander or site 

maintainer can remove profanity or hate speech from a 

page? For example, can he or she order the removal of a 

post by someone who asks a controversial question, or 

makes a divisive or contentious remark?

The type of public forum created may very well determine the amount of editorial control and whether a post 

is actually a public record, and, if so, whether or not 

there is an obligation to maintain, release, and/or distribute. The type of social media presence maintained 

by the organization may be determined in part by the 

contents of any user agreement and its terms and conditions, disclaimers, and the stated purpose/scope of the 

site. Most government actors, including military organizations, create solely informational social media pages 

(eg, using Facebook without any interaction) and are 

engaging in purely government speech, and therefore 

retain editorial control of the page. The problems that 

usually arise concern EOPs that operate between the 

2 extremes of no interactivity and complete interactivity. This gray area of having some interaction between 

web page creators and visitors to the site, but yet strictly 

controlling the conversation, scope of interaction, and/

SOCIAL MEDIA: SOME THINGS TO CONSIDER BEFORE CREATING AN ONLINE PRESENCE
 January – March 2012 41

THE ARMY MEDICAL DEPARTMENT JOURNAL

or content makes it much more diffi cult to determine 

whether or not the government sponsored social media 

page is a public forum.14

Most of the time, the deciding factors will be the site’s 

purpose, content, user policies, disclaimers, and the 

quantity and/or quality of communication between visitor and site creators/maintainers. At this point, there is 

no need for a constitutional law discussion about whether or not a particular EOP created a public forum. For 

purposes of this article, it is suffi cient for the reader to 

be aware that, by their very nature, government-sponsored EOPs or web pages, regardless of purpose or content, fall under a constitutional umbrella which may or 

may not affect the extent to which a government actor, 

by its power to control the conversation, may utilize and 

control the capabilities of a social media site.

RETAINING EDITORIAL CONTROL

If a government actor is very careful in setting up its 

social media site, it can usually guarantee that it is either government speech or a nonpublic forum and can 

therefore retain maximum control over the conversation 

that takes place. Lidsky14 suggests the following combination of actions and common sense solutions for government agencies and commanders to ensure that their 

organization’s site falls into a public forum that allows 

them to retain as much control as possible over the content and conversation:

 Establish a direction or purpose, a real objective 

that serves to advance your mission. The purpose 

may evolve as long as you develop a strategic plan 

to support it. Clearly state and post the purpose and 

the scope of site on the fi rst page so that it is noticeable to visitors to the site. It should state that the 

use of social media by (name of entity) is for the 

purpose of obtaining or conveying information that 

is useful to or will further the goals of said entity.

 Plainly describe the terms and conditions of use so 

that a visitor to the site and/or user is on notice as 

to what kind of conduct and content is prohibited 

or permitted. Remind Soldiers that their conduct 

on the site is still regulated by the Uniform Code 

of Military Justice15 and that they are expected to 

conduct themselves accordingly. Review the current applicable guidance and request advice from 

the public affairs offi ce to ensure you are covering 

all of the Army specifi c requirements.

 Identify an administrator/maintainer in charge of 

the site. The maintainer should be well trained on 

all policies regarding EOPs, OPSEC regulations 

and concerns, and on reviewing content before it is 

posted. He/she should be intimately aware of the objective of the site. Require them to use their names 

and titles for offi cial posts or responses.

 Establish a policy for the retention of records. This 

very simply means that anything posted by the organization or comments by the public should be retained in some form that, if needed, can be retrieved 

at a later date.

 Make sure that the administrators/maintainers understand the technology, how a site works, how to 

post, and how to remove posts. They must be knowledgeable about the subject matter, comprehend the 

commander’s or unit’s intent, and be able to apply 

that understanding responsibly to the web page. 

The administrators/maintainers must know the law, 

regulations, and guidelines before creating the site, 

as well as during its operation. Contact your local 

public affairs offi ce, staff judge advocate and security offi cer for information and assistance.

 State clearly what kind of forum that you are creating. This could be done implicitly in the purpose/

scope/policy statement. However, stating your intent to create a nonpublic or limited public forum 

immediately informs the visitor and user that there 

is no absolute 1st Amendment right to free speech 

or expression on the site.

 Train your people well and give them the time and 

resources to accomplish your site’s stated purpose.

 Clearly post your disclaimers. They should include 

a general disclaimer, privacy and security disclaimer, copyright and trade mark disclaimer, moderated 

presence disclaimer, persistent cookie disclaimer, 

Freedom of Information Act (5 USC §552) and 

records management notice, external links and 

nonendorsement disclaimer, and all disclaimer/notices required by Army regulations. Include a disclaimer that states that any content posted by the 

public, Family member, Army civilian employee, 

and Soldier does not represent the opinion of the 

command.

 Clearly state user policies, terms and conditions, 

and enforcement methods such as no use of profanity; no personal attacks; no spam messages; no offtopic comments; no solicitations; failure to follow 

guidelines for posting comments may result in the 

deletion of comments without warning; and, based 
42 http://www.cs.amedd.army.mil/amedd_journal.aspx

on the discretion of site offi cials, comments may be 

deleted if they violate the Uniform Code of Military 

Justice,15 disrupt good order and discipline, are discriminatory or offensive. 

 Keep postings in offi cial capacity. Do not speak/

post/comment in an unoffi cial capacity, nor fl uctuate between the 2 capacities.

One crucial indicator of the type of public forum your 

organization creates is the amount of interactivity that 

the site permits. Make an unambiguous resolution as 

to whether comments from the public, Soldiers, and/or 

Family members will be allowed. If allowed, develop 

standards that will limit topics, organizational subjects, 

or issues to those fi rst posted by the command. As the 

strategic plan and/or the purpose of the site is under development, commands should determine how they will 

respond to posts and how much they will engage in conversation with the users.

The command must decide how to respond, or even 

whether to respond to questions or comments that are 

posted on the site. It must be determined how to manage 

unwanted or controversial comments or questions, or to 

leave them on the site either answered or unanswered. 

On some sites, other users may police such comments 

by either answering them (correctly or incorrectly) or 

by expressing disapproval of such comments or approval. Site administrators must decide at what point to 

remove divisive posts or to offi cially comment on them. 

The approach that a command adopts may change during the life of the site, depending upon the organization 

and the site’s purpose/objective, negative or positive 

feedback from users, and/or the particular message or 

conversation.

BENEFITS AND CHALLENGES TO USING SOCIAL MEDIA

Before engaging in the use of social media, commanders and agencies in MEDCOM must fi rst ask themselves 

whether the benefi t received will warrant the time, expense, and effort involved in the creation and maintenance of an EOP on a social networking website.14 They 

must seriously evaluate all the benefi ts and potential 

drawbacks or diffi culties associated with having a presence on a social media website. Most importantly, before anything else, commanders and organizations must 

determine for what “purpose” they are undertaking this 

enterprise, ie, for what reason is a social media presence required? Commanders and organizations should 

not create social media web pages simply because other 

agencies are doing it, it is a modern form of media, or 

because it looks good on a résumé.

Once the purpose or objective has been determined, a 

strategic plan or social media strategy is necessary to 

establish how the purpose or objective will be achieved. 

A well organized and structured social media plan must 

address the following questions:

 What direct benefi t does it offer the organization, 

agency, unit or command?

 What are the potential dangers, pitfalls or drawbacks?

 What are the legalities involved in operating a social media page?

In addition, commands should be knowledgeable about 

the process, requirements, and basic guidelines that govern the establishment, use, and maintenance of an EOP.

There are ample reasons why a commander, an organization, or even a platoon-size unit would want to use 

social media to enhance the mission. Social media is 

a powerful communication tool that can signifi cantly 

increase the effectiveness of a command’s interactions 

with Soldiers, Family members, civilian employees, and 

the public. Social media provides the command with the 

ability to reach larger audiences, including people with 

whom the command would not otherwise interact during the ordinary course of business. This communication can take place on a consistent basis, faster, and less 

expensively than with other forms of media. The quality of the communication is enhanced as well, through 

the use of video, audio, computer generated images, and 

photos. Today people can view social media anywhere 

at any time through desk tops, laptops, Ipads, Ipods, cell 

phones, at work, home, in the car, or while shopping. It 

can be used very effectively in crisis situations, to provide warnings and information, and manage a response. 

It can help build and maintain morale and esprit de corps 

by keeping the command and Soldiers connected.

Interactive social media can serve as a virtual town hall 

meeting, encouraging interaction between the command 

and its constituents. Social media also encourages the 

exchange of information and collaboration between the 

command and Soldiers, Families, and civilian employees, providing a continuous process of consultation. The 

command determines its amount of engagement. Social 

media can be used exclusively as an information outlet, or it can be used to solicit open-ended comment and 

expression, or to request more focused and limited avenues of feedback. The command can use it as a tool to 

encourage an exchange of ideas, to address relevant issues or concerns, monitor attitudes about certain issues, 

SOCIAL MEDIA: SOME THINGS TO CONSIDER BEFORE CREATING AN ONLINE PRESENCE
 January – March 2012 43

THE ARMY MEDICAL DEPARTMENT JOURNAL

and get a sense of the overall temperament across the 

target audience.

Commands can use social media sites to communicate 

with Soldiers, Families, and employees, directly eliminating intermediaries. Posts from the commander or 

command sergeant major are communicated directly 

and give an aura of straightforwardness without distortion. Social media fosters a spirit of engagement, accessibility, approachability, and the atmosphere of responsiveness between the command and its constituents.

Perhaps the greatest advantage of social media is that it 

allows the command to control the message. The message is whatever the command determines will promote 

or advance its mission. The message the command communicates is designed, tailored, and managed by the 

command. The command determines the message content, when, where, and how it is released, and the target 

audience. It may be as simple as posting information 

about organizational events, administrative necessities, 

or to congratulate a Soldier on a special occasion. The 

message can be directed at certain groups, individuals, or organizations; it could be to correct a wrongly 

perceived event or inaccurate news story. The message 

may be infl uenced by the kind of feedback the command receives from the message it posts. However, the 

means to track and measure feedback and the manner in 

which feedback is delivered are also controlled by the 

site administrators.

Not only can the command or organization dictate the 

message, it can control and/or limit the amount of interaction. In actuality the command shapes and manages 

the tone, quality, nature, and direction of the conversation that takes place by simply controlling the topic or 

subject of discussion; limiting the time allowed for comment; restricting the type of comments received (positive, constructive—not negative or divisive); establishing whether any comment is allowed; if allowed, the 

form of the comment (text, video, or a simple vote type 

response), and its length. The type of message and reply/

comment environment may refl ect the type of relationship the command has with its Soldiers, Family members, Army employees, and the public.

DRAWBACKS OF SOCIAL MEDIA USE IN THE MILITARY

Although there are great benefi ts to using social media 

and it can be a force multiplier when used appropriately, 

in the context of government, especially the military, social media use comes at a price. Interactive social media 

can create or exert pressure to respond to user demands, 

comments, or questions. Site controllers must be careful 

what they ask for, or to what extent they open the conversation. Users and visitors are allowed their opinions. 

Obviously, Soldiers, Family members, Army civilians, 

and the public have 1st Amendment rights to free expression. The candid, uncensored exchange of ideas, and 

the freedom to express complaints, ask questions, and/or 

make comments is what has defi ned social media. However, that very characteristic is a potential game changer 

for military commands and organizations because the 

necessity to control the conversation is key. Even though 

the conversation occurs on an impersonal illuminated 

screen, there is still the requirement to maintain and 

convey the message of a command-driven relationship, 

with good order and discipline.

Many commands, organizations, and individual commanders choose not to respond to user comments or 

posts, but observe and listen. Even when comments or 

suggestions are requested, or questions are asked, those 

commands and/or individual commanders do not respond. Depending on an organization’s strategic communications plan and social media purpose, such an approach can present a constant dilemma . Many users or 

visitors to a site will judge the site’s credibility on the 

amount of interaction and conversation that occurs: how 

responsive is the site, is it consistently responding or not 

at all, is it merely an informational site, or does it support 

an actual exchange of ideas. Each command, organization, and/or commander must decide to what extent and 

when they will engage with a user based on upon their 

overall strategic plan. However, a site’s perceived relevance to and prominence among its intended audience 

may depend upon how they view the site’s credibility. 

The most obvious and dangerous concern surrounding 

the use of social media in the government and specifi -

cally the military is the loss of sensitive or classifi ed 

information. The internet is a powerful way to convey 

information quickly and effi ciently. However, it also 

provides a potent instrument to adversaries to obtain, 

correlate, and evaluate an unprecedented volume of 

aggregate information regarding our operational capabilities, security limitations, and vulnerabilities. This 

spillage of information into the public arena can be used 

to assemble fragments of information to decipher the 

larger picture, draw conclusions, and deduct usable and 

actionable intelligence.

Maintaining operations security and the ability to manage the risks that result from the use of social media 

should be the number one priority of site controllers/

maintainers. Information in the wrong hands can compromise ongoing operations, base security, or result in 

identity theft. Operations security includes information 
44 http://www.cs.amedd.army.mil/amedd_journal.aspx

concerning things such as: force protection measures; 

communications (information management, infrastructure information systems and networks equipment); logistics (movement of equipment and troops); personally 

identifi able information of Soldiers and Family members; operations (training missions, tactical and strategic 

operational military actions) and critical infrastructure 

(eg, bases, nuclear facilities, water plants).9

 Operations 

security concerns exist in what may seem like harmless photos, videos, news announcements, or status updates—not just folders clearly marked SECRET.

Operations security considerations should be part of 

any strategic social media plan. Site organizers must be 

aware of and knowledgeable about Army regulations 

that apply to classifi ed and sensitive information, and 

who can approve the release of information. Operations 

security awareness training and specialized training for 

site maintainers and controllers is a must and should be 

included in the budget when determining the costs of establishing a site. Furthermore, site administrators/maintainers should be intimately familiar with the intent or 

purpose of the organization’s social media page. Sometimes, unclassifi ed information that might be considered 

harmless may not be conducive to the command’s social 

media plan and should not be posted. The commander 

is ultimately responsible for the content of the organization’s social media pages, including the problems that 

occur: a security violation, an offensive comment by a 

site offi cial, or a simple mistake about the time and date 

of a social event. 

Beyond the potentially dangerous reality of the release 

of OPSEC-related material via a social media site, site 

operators must be concerned with the dissemination of 

misinformation or a misrepresentation that may be posted by impostors or impersonators. In addition, site operators/maintainers must be trained on how and when to 

enforce site policies, user agreements, and disclaimers. 

For example, a site maintainer should be well trained 

regarding what posts or comments can be censored or 

deleted from the site, and when and if they need to be 

recorded and maintained.

Depending on the size of the organization and site’s 

purpose, maintaining a social media presence can be a 

very time-consuming, labor-intensive endeavor. Social 

media page site operators must be trained not just on 

OPSEC issues, but in technical operation and maintenance, compliance with Army regulations and command 

policies, and site policies. The operators must design, 

create, manage, and promote the site. They must consistently review the site’s content; keep the site interesting, people engaged, and information updated. The list 

of responsibilities goes on and on, and everything must 

be accounted for in the strategic plan, then resourced 

and funded.

Because the commander is personally responsible for 

the content, operation and maintenance of the site, he/

she should be involved in or at least informed about its 

daily operations. Once a site operator publishes a post/

comment, it becomes the commander’s responsiblity. 

Once that comment, photo, or video is in the public domain, control over that post is basically lost; it can be 

downloaded, copied, and distributed at will. The command must also monitor the tone of its comments/posts 

(friendly but professional), review the photos, video, or 

text before publication. The sponsoring command must 

make every effort to not violate its own policies, protect 

copyright and trademark laws, and monitor and track 

feedback. If the purpose of the site is to connect with 

an audience with which the command does not interact 

on a regular basis, a poorly maintained or unremarkable 

site without much (or any) site/user interaction will not 

have many followers. It will lack credibility. A poorly 

organized and maintained site becomes irrelevant and 

may give a visitor/user a negative impression of the 

command and organization.

There are additional factors that an Army MEDCOM 

organization commander should consider when using or 

deciding whether or not to use social media are. The 

potential risk of an unauthorized release of personally 

identifi able information (PII) associated with patients’ 

medical records/histories, civilian medical personnel, 

insurance providers, credentialing, investigations, lawsuits, and Family members is enormous.16 Protection of 

personal information under the Privacy Act13 and the 

Health Insurance Portability and Accountability Act 

(Pub L No. 104-191 (1996)) is an essential and basic 

responsibility of all MEDCOM organizations working 

with or connected to the provision of healthcare. It is 

usually these very kinds of organizations that could benefi t the most from an open, uninhibited exchange with 

its users. However, the more open and engaging the site 

may be, the greater the potential risk for an unintended 

release of information. Unauthorized releases or a loss 

of PII is an extremely serious event, commands and site 

operators should refer to OTSG/MEDCOM Policy Memorandum 11-07016 for reporting incidents when there is 

a suspected or actual loss, theft, or compromise of PII.

Records management is another factor that must be 

considered by organizations that provide healthcare. 

Records include all books, documents, videos, photos; 

indeed, anything made or received by the agency as evidence of the organization, function, policies, practices, 

SOCIAL MEDIA: SOME THINGS TO CONSIDER BEFORE CREATING AN ONLINE PRESENCE
 January – March 2012 45

THE ARMY MEDICAL DEPARTMENT JOURNAL

procedures, policies, operations, or other activities; or 

because of the informational data they may contain. The 

Federal records Act of 1950 contains the statutory authority for the Army Records Information Management 

System. Any electronic information generated by or 

contained in an information system or other automation 

source that is created or received during the conduct of 

business must be preserved. There are also restrictions 

on the collection of information from members of the 

public and how that information is stored. According to 

the Paperwork Reduction Act of 1995 (44 USC 3501 et 

seq), government agencies must get approval from the 

Offi ce of Management and Budget prior to obtaining or 

soliciting “identical” information from 10 or more persons. The information must then be stored incompliance 

with the Privacy Act.13

The very nature of the medical fi eld involves the use of 

copyright, trademark, and patent materials; equipment; 

instruments; and pharmaceuticals.17 Site operators must 

be ever vigilant not to endorse, promote or show support 

for one product over the other. They must be mindful 

not to wrongfully use record, distribute or portray copyrighted material, patents or trademarks without acquiring the prior consent of the proprietor. For example photographs from media reporters working with units (“embedded”) are copyrighted and cannot be publicly distributed without the written consent of the reporters.17

CONCLUSION

Like many other Army commands, MEDCOM organizations have turned to social media to distribute their 

message. In the MEDCOM there are numerous traditional websites and social media sites that span the spectrum of interactivity and communications. Because of 

their unique mission, many Warrior Transition Unit 

(WTU) sites have demonstrated a willingness to engage 

in conversation. Rather than waiting to be overwhelmed 

by questions and/or complaints from Soldiers, Family 

members, and/or interested third parties and see the 

reputation of the command suffer, some WTUs took a 

more proactive approach to establishing a communications platform for the command. Although social media 

has worked well for WTUs, that does not mean it will 

work, or is even a viable communications option, for all 

MEDCOM organizations. 

Because of the nature of the Army’s overall mission; the 

traditional, customary and legal restraints that surround 

open discourse within the military; and the necessary 

structure of the command/subordinate relationship, oftentimes the most advantageous social media site is one 

with restricted interactivity, offering informational and 

administrative necessities, while still providing a limited avenue of access to the command. Not all commands 

can afford to open themselves to full and free communication exchanges with users, for such openness of expression may negatively affect the way the command 

delivers its message, interacts with its subordinates, or 

even alter or inhibit the actual, intended purpose of the 

site.

Army MEDCOM organizations that already have an 

EOP in operation and those considering creating one 

should recognize and appreciate certain basic realities. 

The more an organization opens the site for a back and 

forth exchange of comments/posts, the more it is unable 

to control the conversation and messages of the forum. 

Consequently, it then becomes harder to manage the 

risks associated with OPSEC and PII. There is a greater obligation to maintain and keep records, protect 1st 

Amendment rights, and train and keep qualifi ed personnel to monitor and maintain the social media platforms. 

Finally, unfortunately, a simple fact that is often overlooked by too many organizations when sponsoring a 

social media page is that the command must determine 

how to keep the EOP relevant and prominent with users. 

Commands must consistently engage, participate (to a 

limited extent), infl uence, and monitor. The crucial element to a successful governmental or military social 

media site is “credibility.” If users think a commander, 

command, or organizational site is credible, they will 

keep coming back—they will connect with it. The site 

will be relevant and take a prominent place in the user’s 

choice of communications media within the command. 

A reliable site will attach an appearance of credibility 

to the command and/or organization. That perception 

alone has the potential to advance the mission.

The reader should recognize that all organizations do 

not require a social media site, nor is it to their advantage. Is it really necessary that we receive a tweet from a 

commander about what they had for breakfast or that a 

Soldier can become a fan of the command on Facebook? 

We certainly can read newsworthy articles on the organizational web page, in the newspaper, or in the base or 

organizational paper. Commanders can still get the message out at formations, bulletin boards, through town 

hall meeting, email, written correspondence, by phone, 

or face to face.

Commanders must consider how their organization’s 

page will impact the larger picture, how it fi ts in with the 

overall Army message, and, most importantly, is a social media page really going to advance their units mission. Bottom line: considering all the legal implications, 
46 http://www.cs.amedd.army.mil/amedd_journal.aspx

benefi ts, and risks is creating an EOP really worth it, or 

can you simply do it the old fashioned way?

REFERENCES

1. The United States Army Social Media Handbook 

Version 2. Washington, DC: Offi ce of the Chief 

of Public affairs, US Dept of the Army; August 2011. Available at: http://www.slideshare.

net/USArmySocialMedia/army-social-mediahandbook-2011.

2. The Army’s Use of Social Media External Offi cial 

Presence Sites; Alexandria, VA; US Army Audit 

Agency; July 26, 2011. Audit Report; A-2011-0150-

IET.

3. Directive Type Memorandum (DTM) 09-026: Responsible use of Internet-based Capabilities. Washington, DC: Deputy Secretary of Defense; February 

25, 2011: Change 2. Available at: http://www.dtic.

mil/whs/directives/corres/pdf/DTM-09-026.pdf.

4. Chief Information Offi cer/G-6 Memorandum: Responsible Use of Internet Capabilities. Washington, 

DC: Offi ce of the Secretary of the Army; March 25, 

2010. Available at: http://ciog6.army.mil/LinkClick.

aspx?fi leticket=Es8pnrXtvdU%3D&tabid=64.

5. Memorandum: Delegation of Authority–Approval 

of External Offi cial Presences. Washington, DC: 

Secretary of the Army; October 21, 2010. Available 

at: http://www.slideshare.net/USArmySocialMedia/

delegation-of-authority-social-media-use.

6. Army Regulation 25-1: Army Knowledge Management and Information Technology. Washington, 

DC: US Dept of the Army; December 4, 2008.

7. Offi ce of the General Counsel Memorandum: Use 

of Social Media in the Army. Washington, DC: 

Dept of the Army; June 17, 2009.

8. Department of the Army Pamphlet 25-1-1: Information Technology Support and Services. Washington, 

DC: US Dept of the Army; October 25, 2006.

9. Wash- Army Regulation 530-1: Operation Security.

ington, DC: US Dept of the Army; April 19, 2007.

10. Army Regulation 360-1: The Army Public Affairs 

Program. Washington, DC: US Dept of the Army; 

May 25, 2011.

11. Department of the Army Memorandum: Standardizing offi cial U.S. Army external offi cial presences (social media). Washington, DC: Offi ce of 

the Chief of Public Affairs, US Dept of the Army; 

November 1, 2010. Available at: http://corpslakes.

usace.army.mil/socialmedia/Social%20Media%20

Standard%20SOP.pdf.

12. Secretary of the Army Memorandum: Delegation 

of Authority–Approval of External Offi cial Presences. Washington, DC: US Dept of the Army; October 21, 2010. Available at: http://www.slideshare.

net/USArmySocialMedia/delegation-of-authoritysocial-media-use.

13. USC §552a (1974).

14. Lidsky LB. Government sponsored social media 

and public forum doctrine under the fi rst amendment: perils and pitfalls. The Public Lawyer. 

2011;19(2).

15. 64 Stat. 109, 10 USC, chap 47.

16. OTSG MEDCOM Policy Memorandum 11-070: 

Personally Identifi able Information (PII) Incident 

Reporting and Notifi cation Procedures. Fort Sam 

Houston, TX: US Army Medical Command; August 19, 2011.

17. Wash- Army Regulation 27-60: Intellectual Property, 

ington, DC: US Dept of the Army; June 1, 1993.

AUTHOR

CPT Jonasz is an Attorney-Advisor with the Offi ce of 

the Staff Judge Advocate, US Army Medical Command, 

Fort Sam Houston, Texas.

SOCIAL MEDIA: SOME THINGS TO CONSIDER BEFORE CREATING AN ONLINE PRESENCE
 January – March 2012 47

INTRODUCTION

Army medical treatment facilities (MTFs) operate professional education programs to train military healthcare providers (HCPs).1

 To ensure suffi cient training 

opportunities are available for military HCPs and to 

sustain viable in-house programs, MTFs enter into gratuitous training and affi liation agreements with civilian 

healthcare training institutions (TIs). The agreements 

allow military and civilian HCPs to train at each other’s 

facilities. Gratuitous training agreements under which 

military HCPs train in civilian medical facilities are 

called medical training agreements (MTAs).2

 Gratuitous 

training agreements under which civilian HCPs train in 

Army MTFs are known as affi liation agreements.* This 

article summarizes the history of the Army MTA program from a legal perspective and discusses the current 

status of the program.

HISTORY

Historically, the primary legal issue in MTAs has been 

professional liability coverage for HCPs who may be 

sued in a personal capacity. Provision of liability coverage has always been problematic. The Department of 

Justice (DOJ) becomes involved by virtue of the statutory requirements under the Federal Tort Claims Act 

(FTCA).3

 In order for the FTCA to apply, DOJ or the 

appropriate US Attorney’s Offi ce must certify that the 

allegedly negligent HCP was acting within the scope of 

federal employment and move to substitute the United 

States as the defendant.4

 Upon substitution, the HCP is 

immune from personal liability.4,5

Prior to 1989, DOJ concluded that work performed by 

military members training at civilian facilities primarily 

benefi ted the TI and not the Army, fi nding that military 

HCP-trainees were not acting within the scope of employment. Without certifi cation and substitution by DOJ, 

the individual military HCP-trainee would be left as the 

defendant in a lawsuit, responsible for his or her own defense and without any malpractice insurance other than 

that which he or she might have personally obtained. 

This result was untenable.

In 1989, DOJ and legal representatives from the military 

services reached a consensus on defending these 

cases. The DOJ agreed to certify that the military HCP 

trainees were acting within the scope of their federal 

employment and substitute the United States as the 

defendant. In return, the services agreed to make every 

effort to ensure that the military HCPs training at TIs 

were covered under those institutions’ insurance, rather 

than relying on the FTCA. In addition, the services 

agreed they would not accept one-sided agreements and 

would ensure the United States did not accept liability 

for civilian students at MTFs which was greater than the 

liability TIs accepted for military HCPs at their facilities. 

Finally, the services agreed to use all possible care in 

crafting agreements in order to maximize the defenses 

of the United States, particularly the “borrowed servant” 

defense. Under the borrowed servant defense, a special 

employer is liable for the negligent acts of the employee 

of another general employer when the employee is loaned 

to and supervised by the special employer. For example, 

a military HCP-trainee at a TI could be considered a 

borrowed servant from the MTF (general employer), 

and thus be covered by the TI’s (special employer) 

professional liability coverage.

Despite the 1989 consensus, in subsequent years, lawsuits arose for professional negligence of military HCPs 

training in civilian TIs. In some instances, an MTA did 

not exist, was patently one-sided, did not maximize the 

ability of DOJ to assert the borrowed servant defense, 

or was otherwise ill-conceived. As the cases arose, DOJ 

raised the issue of noncompliance with the 1989 consensus, and raised the possibility that it might decline to 

certify and substitute if the services continued to fail to 

uphold their end of the arrangement to enter only into 

appropriate agreements. Such declinations have not, to 

the authors’ knowledge, occurred.

Creation of Standard Format Medical Training 

Agreements

Continued friction over nonexistent and inadequate 

MTAs resulted in 2 standard MTA forms preapproved 

by DOJ. One form relies on professional liability coverage provided by the TI. The second form relies on the 

FTCA for professional liability protection. The Army 

distributed DOJ-approved model MTAs in 1994 and 

redistributed the same formats in 1996 and 2000. In 

Army Medical Training Agreements

Maurice A. Deaver, Jr, JD

Kendra J. Harris

*The Air Force and Navy refer to both MTAs and affi liation 

agreements as training affi liation agreements.
48 http://www.cs.amedd.army.mil/amedd_journal.aspx

addition, The Surgeon General’s Memorandum dated 

March 28, 2000,6

 delegated limited authority to regional 

medical commands (RMC) to enter into MTAs with local teaching hospitals for mission-essential skills augmentation/enhancement training. Two DOJ-approved 

model MTA formats attached to the Memorandum 

evolved into US Army Medical Command (MEDCOM) 

Model MTA Format 1 and Format 2. Format 1, shown 

in Figures 1 and 2, is favored because it is consistent 

with the consensus and it provides that the TI will cover 

the military HCPs with liability insurance. The second 

format provides for FTCA coverage and specifi cally sets 

up the “borrowed servant” defense. Format 2, shown in 

Figures 3 and 4, should only be entered in the event that 

the TI cannot or will not agree to provide liability insurance under Format 1.

Current Army policy requires that any agreement varying from DOJ models must be approved beforehand by 

the US Army Legal Services Agency Litigation Division, 

Tort Litigation Branch (LITDIV). However, the requirement has been neither well-publicized nor closely observed. In 2003, Army MTFs conducted a local review 

of MTAs and reported to MEDCOM and LITDIV that, 

of an estimated 300 agreements, 95% were compliant 

with the required format. Notably, LITDIV conducted a 

subsequent physical review of the agreements and documented a substantially lower level of compliance.

Recommendations for Army Regulations and Policies 

Affecting MTAs

In December 2004, LITDIV recounted the history of the 

Army’s MTA Program in a memorandum to The Surgeon General. LITDIV noted inadequate and erroneous 

guidance in Army Regulation 351-3, and recommended 

Training Agreements be separated from that publication 

and placed in a standalone regulation. However, the current Army Regulation 351-3,

1

 published in October 2007, 

still covers MTAs and affi liation agreements.

In February 2006, the MEDCOM Offi ce of the Staff 

Judge Advocate made a 2-pronged recommendation to 

The Surgeon General: (1) request OTJAG support for a 

senior executive level request to DOJ to suspend DOJ 

agreement requirements for the duration of the Global 

War on Terror; and (2) direct the Commanding General, Army Medical Department Center and School 

(AMEDDC&S) to

 assume proponency for the Army Medical Training 

and Affi liation Agreement program;

 survey the fi eld on the impact of DOJ Policy on 

training agreements across the Army;

 establish Army policy on MTAs and affi liation 

agreements in a new, standalone regulation.

On March 7, 2007, The Surgeon General executed memoranda consistent with that recommendation.

CURRENT ARMY MTA POLICY

As of this writing, portions of the Army policy on MTAs 

are found in Army Regulation 351-3, paragraph 4-7,1(p11)

The Surgeon General Memorandum of March 28, 2000,6

and MEDCOM Model MTA Formats 1 and 2. Paragraph 4-7 of Army Regulation 351-3 sets out the policies, 

procedures, and responsibilities for what it describes as 

the Gratuitous Agreement Program, and defi nes a gratuitous agreement as:

[a] contractual document to obtain short or long-term 

training for military residents/fellows at civilian 

or Federal educational institutions when these 

institutions agree to provide training at no cost to the 

Government.1(p11)

Short-term MTAs

Major subordinate commanders are supervisory authorities of short-term MTAs for MTFs within their respective 

commands. The Commander, MEDCOM is the overall 

supervisory authority for all Army MTFs. The MEDCOM Assistant Chief of Staff for Resource Management 

provides oversight for gratuitous agreements through 

the MEDCOM Agreements Manager (MCRM-M). All 

proposed MTAs must be reviewed by the judge advocate 

offi ce supporting the MTF and be signed by a US contracting offi cer. MTF commanders ensure adherence to 

the requirements of paragraph 4-7 of Army Regulation 

351-3,

1(p11) and its implementing guidance. Furthermore, 

“there will be no payment of” fees or charges “between 

the Army MTF and the” TI for short-term training. The 

Army and the Defense Federal Acquisition Regulation 

Supplements 7,8 provide limited additional guidance, respectively, for gratuitous agreements and the more general topic of educational service agreements.

Army Regulation 351-3 states that the format The Surgeon General has established:

will afford the military trainee the benefits and 

protection normally afforded employees of the 

educational institution regarding liability insurance and 

legal representation.1(p11)

Thus, MTAs must follow the format prescribed in MEDCOM Model MTA Formats 1 and 2.* MTF commanders 

may approve, and contracting offi cers who support the 

ARMY MEDICAL TRAINING AGREEMENTS

*The MEDCOM Model MTA formats are available from the MEDCOM Agreements Manager (MCRM-M).
 January – March 2012 49

THE ARMY MEDICAL DEPARTMENT JOURNAL

MTF commanders may execute, MTAs that conform 

to MEDCOM Model MTA Format 1 or Format 2. Both 

formats conform to DOJ guidance. Format 1 prescribes 

TI-provided liability coverage, legal representation, and 

no indemnifi cation by the United States, the Army, or 

the military trainee.

MTF commanders should attempt to agree upon MEDCOM Model MTA Format 1 with the TI because it is 

preferred. If the TI cannot or will not agree to Format 1, 

Format 2 may be used. Format 2 relies on the FTCA for 

liability protection of the military trainee and establishes the borrowed servant defense, to the extent it exists 

under applicable state law. 

The oversight authority will coordinate with the MEDCOM Staff Judge Advocate (MCJA) to provide advance 

approval for all deviations from MEDCOM Model MTA 

Formats 1 and 2. MTFs and major subordinate commands must forward all MTAs that deviate from MEDCOM Model MTA Formats 1 and 2 through agreements 

manager channels to MCRM-M. In turn, MCRM-M will 

coordinate with the supervisory authority and MCJA. 

The oversight authority may approve nonsubstantive deviations from MEDCOM Model MTA Formats. 

Whenever there is a question as to whether proposed 

deviations are substantive, MCRM-M will coordinate 

through MCJA to contact LITDIV and/or the Department of Justice as necessary.

The local command authority issues temporary duty orders for military members in order to establish offi cial 

duties under MTAs, and to identify the place, inclusive 

dates, and scope of training the duties will encompass. 

MTFs forward MTAs to the supervisory authority’s support agreement manager within 5 days of execution or 

modifi cation. MTFs also review existing MTAs annually. 

In addition to guidance on short-term MTAs, Army Regulation 351-31

 provides instructions for long-term MTAs.

Long-term MTAs

The Offi ce of the Surgeon General is the supervisory authority for long-term MTAs. Army Regulation 351-3 assigns the AMEDDC&S Department of Health Education 

OPTION 1 (PREFERRED FORMAT)

CIVILIAN INSTITUTION ASSUMES LIABILITY RESPONSIBILITY

(includes HIPAA clause (para. 12) if civilian institution does not provide its own clause)

As Of: 10 May 05

1

MEDICAL TRAINING AGREEMENT

(AGREEMENT NO. ________________________)

Installation Code

THIS AGREEMENT, entered into on the _____ day of _____________ 20__ is between

the United States of America, hereinafter called the “Government,” represented by the

Contracting Officer, and ______________________, hereinafter referred to as the

“Training Institution.” It is freely entered into for the mutual benefit of the parties with the

understanding that the Training Institution shall provide training to Government

personnel at no cost to the Government in return for the services of said Government

personnel at no cost to the Training Institution.

1. The U.S. Army, ___________________________ (name of MTF), conducts a

fully accredited training program in ____________________________ (Discipline). The

Training Institution trains residents in ____________________________ (Discipline).

Under this agreement, _________________ (name of MTF) will assign military

residents to the Training Institution for training in ___________________ (Discipline) for

_____ month periods to supplement the existing ___________________ (name of

MTF) training program.

2. In consideration of the premises and of the mutual advantages accruing to the

parties hereto, this agreement sets forth the duties and responsibilities of all parties,

both those of the Training Institution and those of the Government.

3. The __________________________ (name of affiliating institution) agrees to:

a. Provide professional liability (malpractice) coverage, in amounts that

are reasonable and customary in the community for the appropriate specialty, covering

liability for personal injury or property damage, including legal representation and

expense of defense of any such liability claims, actions, or litigation resulting from

participation by the Army trainees or faculty under this agreement. This coverage may

come from any source, but shall clearly cover the Army faculty and trainees while

participating under this agreement at ____________________________ (name of

affiliating institution) facilities. The source of this coverage shall be

____________________________ (identify the source), and __________________

(name of affiliating institution) agrees that if it intends to change such liability coverage

during the tenure of this agreement in a way that will affect the protection provided that

Army trainees, then ____________________________ (name of affiliating institution)

will notify the Army in writing, at least 45 days prior to the effective date of the change,

specifying the change intended to be made. The ______________________________

(name of affiliating institution) must provide documentary proof of the insurance

coverage to the U.S. Army MTF and such documentary proof will be attached to this

agreement. The _____________________ (name of affiliating institution) further

agrees not to seek indemnification from either the United States, the U.S. Army, or the

Army trainee for any settlement, verdict, or judgment resulting from any claim or lawsuit

arising out of the performance of the Army trainee’s professional duties while acting

Medical Training Agreement No. _______________

2

under the control of the _____________________________ (name of affiliating

institution) and its employees.

b. To assure compliance with licensure requirements set forth by the

medical licensing authorities of the State of _______________, for the participation of

military residents in the aforesaid training program.

4. It is understood and agreed that on the premises of this agreement, no agent,

servant, or employee of the Training Institution shall, for any purpose, be deemed an

agent, servant, or employee of the United States Government or be permitted to

perform services of any kind on behalf of the United States Government.

5. It is understood and agreed that the education to be furnished military

residents in connection with this agreement is gratuitous and voluntary and will be

accomplished without cost to the United States Government. The military resident is

prohibited from receiving any payment or contribution, including such forms of

compensation as meals, quarters, or personal laundry, etc., other than his pay and

allowances as a commissioned officer of the United States Army.

6. It is further understood and agreed that the military residents, while

undergoing training at the Training Institution, will be under the immediate professional

supervision and control of the Chief, ___________________ (Department), at the

Training Institution or his authorized designee. All professional services rendered to

patient of the Training institution by military residents will be properly monitored and

supervised by Training Institution staff personnel.

7. Both the Government and the Training Institution must agree in writing prior to

arrival on the number of military residents who will participate in the training program

and on the dates their training is to begin and end.

8. All military residents will be under official orders assigning them to duty at the

Training Institution for a specified period of time. Each resident so assigned will first

report to the appropriate authority at the Training Institution for appropriate instructions.

9. All residents will be placed under the professional supervision of the Chief,

____________________ (Department), at the Training Institution. This official will be

responsible for:

a. The quality of training offered the residents at all times.

b. The furnishing of a final written report evaluating the performance of

each resident at the termination of his/her assignment. All such reports shall be

directed to the attention of the Chief, __________________ (Department),

____________ (name of MTF).

10. The duties and responsibilities of each resident participating in this affiliation

will be:

Figure 1. Pages 1 and 2 of US Army Medical Command Model Military Training Agreement Format 1 (pages 3 and 4 are 

presented as Figure 2).
50 http://www.cs.amedd.army.mil/amedd_journal.aspx

and Training responsibility for the preparation and execution of long-term MTAs.1(p12) Assignment of the military HCP-trainee will be by permanent change of station 

orders. There will be no payment of charges or fees between the government and the TI for training.

Long-term MTAs follow model MTA Formats prescribed by the Offi ce of the Surgeon General and are 

executed by US contracting offi cers.

Staff Skills Augmentation Training Memorandum

The Surgeon General Memorandum of March 28, 2000,6

delegates to commanders of regional medical commands the authority to enter MTAs for staff participation in necessary mission essential skills augmentation, 

maintenance, or enhancement training. The Memorandum includes the following prerequisites for staff training pursuant to an MTA:

1. The commander of the regional medical command 

must designate certain medical skills as mission essential for MTFs in the command.

2. The MTA must provide staff physicians with augmentation, maintenance, or enhancement training for 

the designated essential skills.

3. The MTA must be with a local teaching hospital.

4. The commander of the regional medical command 

must approve the act of entering into the MTA, which 

must be executed by a contracting offi cer.

5. Commanders of regional medical commands may 

allow MTF commanders to approve staff participation 

in training opportunities under MTAs previously entered into by the regional medical command.

6. The training must be within the United States.

7. Training duration should be no longer than a few 

weeks at any one time, and it should not result in additional certifi cation by a recognized specialty or society 

board.

ARMY MEDICAL TRAINING AGREEMENTS

Medical Training Agreement No. _______________

3

a. The workup, evaluation and management of patients assigned to

him/her by members of the Training Institution staff.

b. The quality and completeness of clinical records on patients under

his/her care.

c. The regular attendance at the participation in all scheduled clinics and

any other appropriate teaching conferences at the Training Institution.

d. The assistance at or performance of all procedures as assigned by the

under the supervision of qualified members of the Training Institution staff.

e. The consistent performance of duties at maximum capacity.

11. The Chief, ___________________ (Department), ______________ (name

of MTF), will support this training program as indicated and appropriate.

12. Privacy and Security of Protected Health Information (PHI). [NOTE: FOR

GRATUITOUS TRAINING AGREEMENTS, THE CIVILIAN TRAINING INSTITUTION

(TI) IS THE HOLDER OF THE PHI FOR ITS PATIENTS. THEREFORE, IT IS THE TI’s

OBLIGATION TO INSERT ITS OWN APPROVED HIPAA LANGUAGE IN THIS

PARAGRAPH. IF THE TI DOES NOT PROVIDE ITS OWN HIPAA LANGUAGE, THE

MTF WILL INSERT THE FOLLOWING]. The Training Institution agrees to provide

training on its Health Insurance Portability and Accountability Act (HIPAA) policies and

procedures to those who will be working in the facility. The Army medical facility’s

trainees shall abide by the Training Institution’s HIPAA policies. No PHI or PHI data is

anticipated to be exchanged between the Training Institution and Army medical facility.

It is understood that the trainees are considered members of the Training Institution’s

workforce while receiving clinical training pursuant to this agreement, and so do not

meet the definition of Business Associates under HIPAA. Therefore, no separate

Business Associate Agreement between the Training Institution and Army medical

facility is necessary.

13. It is understood and agreed that the parties of this agreement may revise or

modify this agreement by written amendment hereto, provided such revision or

modification is mutually agreed upon and signed by the authorized representative of

both parties.

14. This agreement shall commence on the date of execution and shall continue

until terminated.

15. The Government will review this agreement annually before the anniversary

of its effective date for the purpose of incorporating changes required by statutes,

Executive Orders, or the Federal Acquisition Regulations, such changes to be

evidenced by a modification to this agreement or by a superseding agreement. If the

Medical Training Agreement No. _______________

4

parties fail to agree on any such change, the Government may terminate this

agreement.

16. Either party may terminate this agreement by giving thirty (30) days advance

written notice of the effective date of termination.

IN WITNESS WHEREOF, the parties hereunder have executed this agreement this

_____ day of ________________, 20_____.

THE TRAINING INSTITUTION THE UNITED STATES OF AMERICA

BY _________________________ BY ___________________________

(Contracting Officer)

DATE _______________________ DATE _________________________

Figure 2. Pages 3 and 4 of US Army Medical Command Model Military Training Agreement Format 1 (pages 1 and 2 are 

presented as Figure 1).
 January – March 2012 51

THE ARMY MEDICAL DEPARTMENT JOURNAL

8. TRICARE access standards must be maintained 

and participation in MTAs may not result in overall 

workload shifts to the managed care contractor.

The Memorandum requires appropriate legal review of 

the MTA, but the versions of MEDCOM MTA formats 

included as enclosures 1 and 2 to the Memorandum are 

outdated. The Memorandum does not include specifi c 

processing instructions, however all requirements described above for short-term MTAs apply.

Because the Memorandum specifi es several limitations 

on the grant of authority to commanders of regional 

medical commands, requests to deviate from those limitations must be approved. Such deviations might include 

entering into an MTA with a nonlocal teaching hospital, 

or entering an MTA for the purpose of enhancing skills 

of staff members other than physicians. The procedure 

for requesting approval of deviations is the same procedure used for deviations in short-term MTAs.

The Memorandum concludes by addressing civilian facilities without residency/fellowship training programs. 

The memorandum indicates the training with industry 

agreement may be more appropriate for such facilities. 

Neither MCJA nor LITDIV have any records which suggest that DOJ has ever approved the training with industry format included as enclosure 3 to the Memorandum. 

Accordingly, any request to use the training with industry format requires DOJ approval for deviations from 

one of the 2 MEDCOM Model MTA Formats.

OBSERVATIONS ON THE CURRENT ARMY MTA PROGRAM

Deviations from MEDCOM Model MTA Format 1

MEDCOM Model MTA Format 1 is appropriate when 

the TI provides professional liability coverage. In the 

past, LITDIV advised that MEDCOM Model MTA 

Format 1 provides guidance, but is not mandatory because the coverage is not being provided by the United 

States, but by the TI. When the TI provides coverage, 

OPTION 2 (USE ONLY IF SCHOOL WON’T ACCEPT OPTION 1 FORMAT)

(includes HIPAA clause (para. 12) if civilian institution does not provide its own clause)

As Of: 10 May 05

1

MEDICAL TRAINING AGREEMENT

(AGREEMENT NO. ________________________)

Installation Code

THIS AGREEMENT, entered into on the _____ day of _____________ 20__ is between

the United States of America, hereinafter called the “Government,” represented by the

Contracting Officer, and ______________________, hereinafter referred to as the

“Training Institution.” It is freely entered into for the mutual benefit of the parties with the

understanding that the Training Institution shall provide training to Government

personnel at no cost to the Government in return for the services of said Government

personnel at no cost to the Training Institution.

1. The U.S. Army, ___________________________ (name of MTF), conducts a

fully accredited training program in ____________________________ (Discipline). The

Training Institution trains residents in ____________________________ (Discipline).

Under this agreement, _________________ (name of MTF) will assign military

residents to the Training Institution for training in ___________________ (Discipline) for

_____ month periods to supplement the existing ___________________ (name of

MTF) training program.

2. In consideration of the premises and of the mutual advantages accruing to the

parties hereto, this agreement sets forth the duties and responsibilities of all parties,

both those of the Training Institution and those of the Government.

3. The ____________________________ (name of affiliating institution) agrees:

a. Military residents affected by this agreement perform their training

under authority of lawful orders issued by the Department of the Army and receive their

pay and allowances therefrom. Accordingly, while performing such training, military

residents are acting within the scope of their employment and are considered

employees of the Army acting within the scope of their employment under Federal law.

The provisions of 28 United States Code, section 2679, will immunize the military

resident from individual tort liability. Furthermore, it is understood by the

________________________ (name of affiliating institution) that the United States will

protect the liability of the military resident only, and that the United States may, in its

representation of the military resident, assert any defense available under Federal law.

Any notification of an actual or potential claim or suit against the __________________

(name of affiliating institution) which names a military resident as a party of potential

defendant will be reported to the United States Army Claims Service, Fort George G.

Meade, Maryland 20755 (telephone (301) 677-7009). The _______________________

(name of affiliating institution) agrees to cooperate fully with the United States in the

investigation of such complaints, to include making available any medical records,

medical material including x-rays, slides, tissue, and witness statements, and the names

of all other defendants. Further, the ____________________________ (name of

affiliating institution) will notify the United States of the extent and nature of any

applicable malpractice insurance and whether such insurance includes the military

resident. The United States Army will cooperate in the investigation and defense of

Medical Training Agreement No. _______________

2

such complaints and where concurrence of the Attorney General is obtained will, upon

request of the military resident, assist in the removal of the action to the appropriate

Federal District Court with a view toward substituting the United States as a defendant

in lieu of the military resident.

b. To assure compliance with licensure requirements set forth by the

medical licensing authorities of the State of _________________, for the participation of

military residents in the aforesaid training program.

4. It is understood and agreed that on the premises of this agreement, no agent,

servant, or employee of the Training Institution shall, for any purpose, be deemed an

agent, servant, or employee of the United States Government or be permitted to

perform services of any kind on behalf of the United States Government.

5. It is understood and agreed that the education to be furnished military

residents in connection with this agreement is gratuitous and voluntary and will be

accomplished without cost to the United States Government. The military resident is

prohibited from receiving any payment or contribution, including such forms of

compensation as meals, quarters, or personal laundry, etc., other than his pay and

allowances as a commissioned officer of the United States Army.

6. It is further understood and agreed that the military residents, while

undergoing training at the Training Institution, will be under the immediate professional

supervision and control of the Chief, ___________________ (Department), at the

Training Institution or his authorized designee. All professional services rendered to

patient of the Training institution by military residents will be properly monitored and

supervised by Training Institution staff personnel.

7. Both the Government and the Training Institution must agree in writing prior to

arrival on the number of military residents who will participate in the training program

and on the dates their training is to begin and end.

8. All military residents will be under official orders assigning them to duty at the

Training Institution for a specified period of time. Each resident so assigned will first

report to the appropriate authority at the Training Institution for appropriate instructions.

9. All residents will be placed under the professional supervision of the Chief,

____________________ (Department), at the Training Institution. This official will be

responsible for:

a. The quality of training offered the residents at all times.

b. The furnishing of a final written report evaluating the performance of

each resident at the termination of his/her assignment. All such reports shall be

directed to the attention of the Chief, __________________ (Department),

____________ (name of MTF).

Figure 3. Pages 1 and 2 of US Army Medical Command Model Military Training Agreement Format 2 (pages 3 and 4 are 

presented as Figure 4).
52 http://www.cs.amedd.army.mil/amedd_journal.aspx

the concerns are: (1) is there actually coverage; (2) does 

the coverage provide for legal representation; and (3) 

are there provisions for no recourse against the United 

States, the trainee, or other Army personnel in the event 

the TI-provided coverage actually pays out? As a consequence, substantial latitude is permitted within MEDCOM Model MTA Format 1, and most deviations are 

not deemed substantive.

Deviations from MEDCOM Model MTA Format 2

When the FTCA replaces liability coverage for the military trainee, MEDCOM Model MTA Format 2 should be 

used. Even small deviations from this form are frequently 

viewed as substantive. Attempts to “improve” the document by rewriting it are generally not well-received. Do 

not attempt to write a better document. Every change to 

MEDCOM Model MTA Format 2 must be viewed in the 

context of its impact on the borrowed servant doctrine. 

Any change which involves severing or weakening the 

chain of supervision between military trainees and the 

TI will likely be substantive. The form language of MTA 

Format 2 places military trainees under the

immediate professional supervision and control of 

the Chief, [appropriate department] at the Training 

Institution.... All professional services rendered...

by military residents will be properly monitored and 

supervised by TI staff personnel.6

Any changes in this language will almost certainly be 

deemed substantive.

Placing supervision responsibilities with personnel who 

are not employees of the TI (eg, independent contractors) 

breaks the supervisory chain within the TI and constitutes a substantive change. Similarly, inserting military 

personnel in the TI as instructors for military trainees 

also breaks the supervisory chain, as does the insertion 

of an independent government contractor as the instructor. Moving the responsibility for ensuring compliance 

with state licensure requirements from the TI to the government has been viewed as a substantive deviation. In 

one case, however, a change placing the burden on the 

ARMY MEDICAL TRAINING AGREEMENTS

Medical Training Agreement No. _______________

3

10. The duties and responsibilities of each resident participating in this affiliation

will be:

a. The workup, evaluation and management of patients assigned to

him/her by members of the Training Institution staff.

b. The quality and completeness of clinical records on patients under

his/her care.

c. The regular attendance at the participation in all scheduled clinics and

any other appropriate teaching conferences at the Training Institution.

d. The assistance at or performance of all procedures as assigned by the

under the supervision of qualified members of the Training Institution staff.

e. The consistent performance of duties at maximum capacity.

11. The Chief, ___________________ (Department), ______________ (name

of MTF), will support this training program as indicated and appropriate.

12. Privacy and Security of Protected Health Information (PHI). [NOTE: FOR

GRATUITOUS TRAINING AGREEMENTS, THE CIVILIAN TRAINING INSTITUTION

(TI) IS THE HOLDER OF THE PHI FOR ITS PATIENTS. THEREFORE, IT IS THE TI’s

OBLIGATION TO INSERT ITS OWN APPROVED HIPAA LANGUAGE IN THIS

PARAGRAPH. IF THE TI DOES NOT PROVIDE ITS OWN HIPAA LANGUAGE, THE

MTF WILL INSERT THE FOLLOWING]. The Training Institution agrees to provide

training on its Health Insurance Portability and Accountability Act (HIPAA) policies and

procedures to those who will be working in the facility. The Army medical facility’s

trainees shall abide by the Training Institution’s HIPAA policies. No PHI or PHI data is

anticipated to be exchanged between the Training Institution and Army medical facility.

It is understood that the trainees are considered members of the Training Institution’s

workforce while receiving clinical training pursuant to this agreement, and so do not

meet the definition of Business Associates under HIPAA. Therefore, no separate

Business Associate Agreement between the Training Institution and Army medical

facility is necessary.

13. It is understood and agreed that the parties of this agreement may revise or

modify this agreement by written amendment hereto, provided such revision or

modification is mutually agreed upon and signed by the authorized representative of

both parties.

14. This agreement shall commence on the date of execution and shall continue

until terminated.

15. The Government will review this agreement annually before the anniversary

of its effective date for the purpose of incorporating changes required by statutes,

Executive Orders, or the Federal Acquisition Regulations, such changes to be

evidenced by a modification to this agreement or by a superseding agreement. If the

Medical Training Agreement No. _______________

4

parties fail to agree on any such change, the Government may terminate this

agreement.

16. Either party may terminate this agreement by giving thirty (30) days advance

written notice of the effective date of termination.

IN WITNESS WHEREOF, the parties hereunder have executed this agreement this

_____ day of ________________, 20_____.

THE TRAINING INSTITUTION THE UNITED STATES OF AMERICA

BY _________________________ BY ___________________________

(Contracting Officer)

DATE _______________________ DATE _________________________

Figure 4. Pages 3 and 4 of US Army Medical Command Model Military Training Agreement Format 2 (pages 1 and 2 are 

presented as Figure 3).
 January – March 2012 53

THE ARMY MEDICAL DEPARTMENT JOURNAL

military trainee was accepted when the TI attorney produced the state statute explicitly placing the burden of 

compliance on the trainee. These are a few examples 

in which particular deviations from MEDCOM Model 

MTA Format 2 were disapproved. There are a number 

of other deviations that have been disapproved, including proposed MTAs that include numerous changes and 

additions to MEDCOM Model MTA Format 2, even 

though the many changes and additions had no apparent 

impact on the borrowed servant doctrine.

Liability Insurance

Training institutions are increasingly unwilling to pay 

for liability coverage. Such coverage generally comes 

in the form of commercial liability insurance, although 

state-owned TIs may rely on a state tort claims act. 

Government purchase of liability insurance for military trainees is an alternative. The United States is a 

self-insurer. On a number of occasions, the Comptroller General has determined that, absent a specifi c statutory grant of authority or other limited circumstances 

which are not applicable to MTFs, there is no authority for the United States to purchase liability insurance 

for its personnel. A federal statute 9

 and a Department 

of Defense directive 10 specifi cally delegate authority to 

the Secretary of the Army to purchase liability insurance for medical personnel who are detailed for service 

with “other than a Federal Department.” To the authors’ 

knowledge, such authority has never been exercised or 

redelegated. Obviously, a general decision to fund commercial liability insurance for military trainees at TIs 

would have substantial fi scal implications.

To Whom Do the MTA Formats and Rules Apply?

While the MTA rules resulted from military physicians 

performing residencies in civilian medical TIs, the rules 

have generally been applied to any medical training in 

civilian organizations in which a military HCP or student military HCP engaged in clinical training. Notably, 

since Army Regulation 351-31

 and The Surgeon General 

Memorandum of March 28, 20006

 apply to physicians, 

MTAs for other than physicians require an approved deviation. MTA applicability includes public educational 

institutions as well as private institutions and commercial businesses that deliver healthcare. The rules apply 

to both military HCPs and student HCPs, covering ranges from student technicians and nurses through medical 

staff physicians in initial, advanced, or skills maintenance training. The rules apply to all forms of civilian 

facilities. In short, MTA format rules apply to all cases 

in which Army medical personnel deliver healthcare 

services outside of the MTF to people who are not military health system benefi ciaries, because the authority 

for providing such care is based on the training benefi ts 

received by military HCPs. Such training, in turn, enables military HCPs to better deliver healthcare services 

to military health system benefi ciaries.

Viability of the Borrowed Servant Doctrine

The borrowed servant doctrine is a creature of state law. 

If the doctrine is applied, a TI acting in the role of a 

special employer is vicariously liable for the negligent 

acts of military HCPs loaned from the general employer 

(the MTF) when the military trainees are supervised 

by the TI. One primary purpose for the development of 

the MTA format was to maximize coverage for military 

trainees using TI liability insurance and the borrowed 

servant defense. If the borrowed servant defense is not 

recognized and TIs do not independently agree to carry 

liability coverage, military HCPs must rely on protection 

under the FTCA. To the extent the state where the TI is 

located does not recognize the doctrine, an argument 

might be made that the underlying reason for requiring 

the model MTA format does not apply. The argument 

has to be made on a case-by-case basis through the request for approval of a deviation from the MEDCOM 

Model MTA Formats.

Comparison of Federal Tort Claims Act Protection vs 

Commercial Liability Insurance

Federal Tort Claims Act coverage for a military HCP is 

generally more advantageous than commercial liability 

insurance. For instance, under the FTCA, the military 

member is immune from liability and is no longer a 

defendant in the lawsuit. Commercial insurers are only 

liable up to the policy limit, and the military HCP is 

still personally liable. Thus, a reasonably well-informed 

military HCP trainee or a commercial insurer might demand DOJ certify the HCP is within the scope of federal 

employment in spite of coverage provided by commercial liability insurance.

Military HCP-trainee Duty Status

It is essential that the military HCP-trainee performing 

under the MTA do so in a duty status. Coverage under 

the FTCA is predicated on the HCP-trainee acting within the scope of his/her federal employment. DOJ advised 

in 1989 that it will issue scope of federal employment 

certifi cations only in those cases where the HCP-trainee 

took the actions subject to the complaint(s) pursuant 

to offi cial orders. DOJ will not issue scope of federal 

employment certifi cations in cases where the military 

HCP-trainee was engaged in activity while on permissive TDY, on leave, or in some other nonduty status.

OTHER MILITARY SERVICE MEDICAL TRAINING AGREEMENTS

The Air Force and Navy published standalone directives covering affi liation agreements and MTAs (Army 
54 http://www.cs.amedd.army.mil/amedd_journal.aspx

terminology), or training affi liation agreements (Air 

Force and Navy terminology).11,12 Those publications 

contain DOJ-approved model training affi liation agreement formats specifi c to each service.

REFERENCES

1. Army Regulation 351-3: Professional Education 

and Training Programs of the Army Medical Department. Washington, DC: US Dept of the Army; 

October 15, 2007.

2. 10 USC §4301.

3. 28 USC §2671-2680.

4. 28 USC §2679(d).

5. 10 USC §1089.

6. Offi ce of The Surgeon General. Memorandum: 

Mission Essential Skills Augmentation/Enhancement Training. Washington, DC: US Dept of the 

Army; March 28, 2000.

7. Army Federal Acquisition Regulation Supplement: 

Part 5101. Washington, DC: US Dept of the Army; 

September 12, 2001 [rev 22]:151-152.

8. Defense Federal Acquisition Regulation Supplement. Washington, DC: US Dept of Defense; 1998 

[update November 2011]: Subpart 237.72. Available 

at: www.acq.osd.mil/dpap/dars/dfars/html/r200907

29/237_72.htm. Accessed November 4, 2011.

9. 10 USC §1089(f).

10. Department of Defense Directive 6000.6: Defense 

of Certain Medical Malpractice Claims Against 

Department of Defense Healthcare Providers. 

Washington, DC: US Dept of Defense; July 2, 2004 

[recertifi ed October 31, 2006]. Available at: http://

www.dtic.mil/whs/directives/corres/pdf/600006p.

pdf. Accessed November 4, 2011.

11. Air Force Instruction 41-108: Training Affi liation 

Agreement Program. Washington, DC: US Dept of the 

Air Force; May 4, 2011. Available at: http://www.e-pub

lishing.af.mil. Accessed November 4, 2011.

12. . BUMED Instruction 7050.1B: Support Agreements

Washington, DC: US Dept of the Navy; March 30, 

2011. Available at http://www.med.navy.mil/direc

tives/ExternalDirectives/7050.1B.pdf. Accessed No

vember 4, 2011.

AUTHORS

Mr Deaver is Supervisory Attorney, Contract and Fiscal 

Law Division, Offi ce of the Staff Judge Advocate, US 

Army Medical Command, Fort Sam Houston, Texas.

At the time this article was written, Ms Harris was a 

Legal Intern with the Offi ce of the Staff Judge Advocate, 

US Army Medical Command, Fort Sam Houston, Texas.

ARMY MEDICAL TRAINING AGREEMENTS
 January – March 2012 55

Generally speaking, federal agencies, including the 

Department of Defense (DoD) and the Army Medical 

Command, are prohibited by statute from accepting voluntary services. Section 1342 of Title 31 USC prohibits: 

[a]n officer or employee of the United States Government 

[from] ... accept[ing] voluntary services ... except for 

emergencies involving the safety of human life or the 

protection of property.

It is not diffi cult to discern the diffi cult questions that 

would arise if not for such a general prohibition. For instance: what would the status of the volunteer be; would 

he or she be limited to remedies provided by the Federal Employee Compensation Act (5 USC §§8101-8193) 

if injured on the job; what if he or she injured someone 

else while acting as an agent for the federal government? 

Moreover, on a more theoretical note, only Congress has 

authority to allocate resources that will be used to perform federal functions and services. This role that is reserved to the Congress would be diminished if federal offi cers had unbridled power to accept voluntary services.

Given the general prohibition, one might ask why it is 

that we see volunteers in our military treatment facilities. As with many statutory prohibitions, Congress has 

carved out specifi c exceptions to the general rule, and 

Army Medical Command benefi ts greatly from those exceptions. Section 1588 of Title 10 USC contains several 

exceptions that allow the military departments to accept 

voluntary services for a number of specifi c purposes, including “health care related services.” (10 USC §1588(a)

(1)) This article, however, deals with another narrow exception to the general prohibition; one that applies to the 

whole federal government and allows the Army Medical 

Command to participate more fully in the collegiality 

of the medical profession, and maybe even do a little 

recruiting. Section 3111 of Title 5 USC authorizes federal agencies “subject to regulations issued by the Offi ce 

[of Personnel Management]” to accept voluntary service 

“performed by a student, with the permission of the institution at which the student is enrolled, as part of an 

agency program established for the purpose of providing 

educational experiences for the student” (para (b)(1)).

The Army Medical Command (MEDCOM) has taken 

advantage of the authority in 5 USC §3111 by establishing a program that permits students of accredited educational institutions to train at an Army medical facility. 

The vehicle by which this takes place is an affi liation 

agreement. The particulars of the Army’s affi liation 

agreement program are found in chapters 15 (Affi liation Policy and Procedure) and 16 (Agreements) of Army 

Regulation 351-3.

1(pp58-69) Since the regulation is comprehensive and reasonably short, this article is an introduction rather than an exhaustive treatment of all aspects of 

affi liation agreements.

Under Army Regulation 351-3, an affi liation agreement is 

a written memorandum of agreement between an Army 

medical facility and an accredited civilian educational 

institution.1(p59) The “student volunteers” appointed under 

an affi liation agreement are not federal employees. Congress has specifi cally addressed the questions noted earlier by designating student volunteers as employees for 

the purpose of workers compensation (if they are injured 

on the job) and federal tort claims (if they injure another) 

(5 USC §3111(c)(1)). Student volunteers, however, receive 

no other employee benefi ts or pay under the regulation.

The affi liation agreement may appear to represent a great 

opportunity to acquire no-cost, supplementary staff, but 

a cautionary note is appropriate here. It is important to 

keep in mind what this program is and what it is not. It is 

an opportunity to allow students to fulfi ll academic requirements in military treatment facilities. By allowing 

students this opportunity, we engage in the collegiality of 

the healthcare profession while also showcasing military 

medicine to potential future recruits or employees.1(p59)

The affi liation agreement program is not an opportunity 

to supplement staff or to obtain staffi ng that is otherwise 

not authorized.1(p59) Title 5, Section 3111(b)(3) contains 

a specifi c prohibition against using student volunteers 

to displace any employee. It should also be noted that 

under Army Regulation 351-3,

1(p59) “[a]ny work benefi ts 

derived [from an affi liation agreement] are incidental to 

training” and that in determining whether to enter into 

an affi liation agreement, facility commanders must assure that they “serve the best interest of the Army” and 

“do not detract from the medical mission of the Army 

medical facility or the education and training needs of 

AMEDD personnel.” Programs established “for the sole 

benefi t of the educational institution or its trainees” are 

specifi cally not authorized.

 Moreover, commanders of medical treatment facilities 

must keep in mind that Section 3111 is an exception to a 

general prohibition against the acceptance of voluntary 

services. Any such exception should always be narrowly 

Affiliation Agreements

David W. Claypool, JD
56 http://www.cs.amedd.army.mil/amedd_journal.aspx

interpreted, particularly so in this case since offi cers and 

employees of the US government who violate 31 USC 

§1342 are subject to criminal penalties under 31 USC 

§1350, which states that “[a]n offi cer or employee of the 

United States Government ... [who] knowingly and willfully violat[es] section 1341(a) or 1342 of this title shall 

be fi ned not more than $5,000, imprisoned for not more 

than 2 years, or both.” Therefore, care should be taken 

not to accept voluntary services other than in strict compliance with guidelines which implement 5 USC §3111 

or 10 USC §1588. It may be instructive to note that Section 1342 immediately follows, and was enacted in tandem with Section 1341 (otherwise known as the Anti 

Defi ciency Act). This implies that Congress attached as 

much importance to its prohibition of the acceptance of 

voluntary services as it did to its prohibition against the 

obligation of funds in excess of appropriations. It seems 

clear, therefore, that voluntary services should only be 

accepted in accordance with the guidelines that implement Section 3111 or 10 USC §1588. Otherwise, the protection of the exception(s) may be lost.

MEMORANDUM OF AGREEMENT APPROVAL AND EXECUTION

As stated above, affi liation agreements are memorialized by a memorandum of agreement (MOA) “between the educational institution and the Army medical facility.”1(p59) Such an MOA is the only mechanism 

authorized for use “as the basis for the acceptance, appointment, and clinical assignment of the educational 

institution’s trainees by the Army medical facility.”1(p59)

Army Regulation 351-3 contains a prescribed format for 

an affi liation agreement MOA1(pp61-65) and local deviation from the prescribed format is not authorized without MEDCOM approval.1(p59) The regulation directs that 

the completed MOA “will be forwarded to reach the approving authority at least 30 days before the proposed 

starting date”1(p59) and “should be coordinated through” 

the staff judge advocate, civilian personnel offi cer, and 

resource management offi cer.1(p59) Although the regulation designates the commanding general of MEDCOM 

as the approving authority for affi liation agreements 

within MEDCOM, it also delegates approval authority 

“to commanders of Active Army medical and dental facilities ... , provided the agreement is in the prescribed 

MEDCOM format.”1(p59)

Once entered into, an affi liation agreement remains in 

effect until it is terminated by either party. Each agreement must be reviewed annually, however, “to determine 

whether it should remain in effect,” and “[e]ither party 

may terminate the arrangements under this agreement 

by giving 30 days advance written notice of the effective 

date of termination.” While the regulation encourages 

that such notice should “be given before the beginning 

of a training period,” it recognizes that unusual circumstances may require shorter notice and specifi cally recognizes the right of the approving authority to terminate 

an agreement “at any time to meet the mission needs of 

the AMEDD.”1(pp59-60)

STUDENT ELIGIBILITY AND VOLUNTEER STATUS

In order to be eligible for appointment under an affi liation agreement an individual must meet the criteria and 

defi nition of a “student” under 5 USC §3111. The individual must be enrolled, at least half-time, “in a high 

school, trade school, technical or vocational institute, 

junior college, college, university, or comparable recognized educational institution” (para (a)) and have permission to participate from the educational institution 

at which he or she is enrolled (para (b)(1)). A break of 

5 months or less between semesters does not affect the 

student’s eligibility, so long as the “individual shows ... 

a bona fi de intention of continuing to pursue a course 

of study or training in the same or different educational 

institution during the school semester ... immediately 

after the [break]” (para (a)).

Once selected for training, student volunteers are appointed in the same way as civil service employees. The 

requesting organization submits a Standard Form 52 

(Request for Personnel Action) to the civilian personnel 

offi ce that services the medical facility, which then uses 

a Standard Form 50 (Notifi cation of Personnel Action), 

the same form used to appoint civil service employees, 

to effect the appointment.1(p68) The civilian personnel 

offi ce also establishes an offi cial personnel folder that 

contains:

 Copies of the appointment and termination Standard Form 50s.

 Copies of any license required for the category of position to which the student volunteer is appointed. 

 A brief statement of the duties performed (which 

may be a standardized statement covering an entire 

trainee group).

 A record of time and attendance (which may be a 

format accepted by both the Army medical facility 

and the educational institution as long as it shows 

the dates and hours of training at the Army medical 

facility).1(p68)

To summarize, student volunteers are appointed using 

the same forms as civil service employees. As stated 

above, they are considered employees for the purposes 

of workers compensation laws, the Federal Tort Claims 

Act, and mass transit benefi ts. This is the extent of their 

similarity to federal employees. After appointment as 

AFFILIATION AGREEMENTS
 January – March 2012 57

THE ARMY MEDICAL DEPARTMENT JOURNAL

a student volunteer, the trainee serves without compensation and is not reimbursed for traveling or living 

expenses (see inset, Travel Expenses).1(p59) Student volunteers must not be used to staff a position that is a normal 

part of the medical treatment facility’s workforce and 

must not displace any employee (para (b)(2)-(b)(3), 5 

USC §3111; 5 CFR §308.101). Moreover, student volunteers under affi liation agreements are not “counted” as 

personnel, nor are positions created for them on tables 

of distribution and allowances.1(p59)

Although not employees for most purposes, student 

volunteers do receive a considerable amount of support in the form of close supervision. Army Regulation 

351-3 recognizes that the Army remains “responsible 

for health care provided in its facilities” and is mindful 

that student volunteers “could expose the United States 

to liability.”1(p59) Therefore, it requires that student volunteers be closely “supervised by the Army medical 

facility staff while participating in the program” and 

stipulates that “[t]heir involvement in patient care will 

be governed by the Army medical facility’s quality assurance program” under Army Regulation 40-68.

4

Student volunteers may receive other kinds of support 

under the regulation s well. For example, the student will 

receive medical care for illness or injury suffered while 

undergoing training at an Army medical facility.1(p68)

Army medical facilities may also provide student volunteers the following support when needed to support the 

training effort 1(p69):

 Meals, on a reimbursable basis at employee or guest 

rates, when the training schedule requires trainee 

presence during mealtime.

 Sleeping quarters in the facility during 24-hour call 

duty, when the training schedule requires the trainee to perform such duty.

 Transportation between Army medical facilities 

when required by the training schedule, but not from 

or to living quarters or the educational institution.

 Textbooks, supplies, and equipment required for 

use in training. Nonexpendable items will be handreceipted and returned.

 Classroom, conference room, offi ce, dressing room, 

locker, and storage space required for the conduct of 

training.

CONCLUSION

So long as they are established for authorized reasons 

and in compliance with governing directives, affi liation 

agreements can be a useful exception to the general prohibition of the acceptance of voluntary services. They 

foster greater interaction between the military and civilian medical communities and serve as a recruiting 

opportunity, but are not a staffi ng opportunity. Like all 

other exceptions to general rules, however, they must 

be “handled with care.” Those interested in establishing 

affi liation agreements should consult chapters 15 and 16 

of Army Regulation 351-3,

1(pp58-69) and seek advice from 

their servicing SJA, personnel, and training offi ces.

ACKNOWLEDGEMENT

Special thanks to M. Louise Attaya, former attorney 

adviser at MEDCOM and author of “Affi liation Agreements,” published in the 1999 US Army Medical Command Legal Deskbook, for providing a useful framework 

and knowledge used in writing this article.

REFERENCES

1. Army Regulation 351-3, Professional Education and 

Training Programs of the Army Medical Department. 

Washington, DC: US Dept of the Army; October 15, 

2007. Available at: http://www.apd.army.mil/pdffi les/

r351_3.pdf.

2. The Homeland Security Act of 2002, Pub L No 107-

296, Title XIII, Subtitle B, §1314.

3. Department of Defense Instruction 1000.27: Mass Transportation Benefi t Program. Washington, DC: US Dept 

of Defense; October 28, 2008:13. Available at: http://

www.dtic.mil/whs/directives/corres/pdf/100027p.pdf.

4. . Army Regulation 40-68: Clinical Quality Management

Washington, DC: US Dept of the Army; February 26, 

2004 [revised May 22, 2009]. Available at: http://www.

apd.army.mil/pdffi les/r40_68.pdf.

AUTHOR

Mr Claypool is an Attorney Adviser, Offi ce of the 

US Army Medical Command Staff Judge Advocate, 

Alexandria, Virginia.

TRAVEL EXPENSES

Congress has extended one other benefit to student volunteers. Public Law 107-296 amended 5 USC §3111 to 

specifically state that student volunteers are considered 

employees for the purposes of 5 USC §7905,88 the statute that authorizes mass transit benefits to offset commuting costs.2 However, as of this writing, neither Army 

nor DoD regulations refl ect this change. Army Regulation 351-3 states that student volunteers are not entitled 

to travel benefi ts.1(pp68-69) This restriction is consistent with 

the eligibility criteria in the instruction that implements 5 

USC §7905, DoD Instruction 1000.27,

3

 which also specifi cally excludes students who provide voluntary services from eligibility for the mass transit benefi ts program.
58 http://www.cs.amedd.army.mil/amedd_journal.aspx

INTRODUCTION

On March 5, 2010, the Department of Defense (DoD) 

reissued DoD Instruction 6200.03, Public Health Emergency Management Within the Department of Defense.

1

This comprehensive instruction addresses various subjects including public health emergency management 

roles and responsibilities for military commanders, as 

well as roles for military treatment facility (MTF) commanders, public health emergency offi cers, and MTF 

emergency managers. It also provides DoD guidance 

in accordance with applicable law. This article summarizes some of the major laws and provides a basic legal 

foundation for leaders and/or managers facing a public 

health emergency.

THE STAFFORD ACT

While this article’s purpose is not to address DoD support to civil authorities, we cannot address public health 

legal authorities without fi rst discussing the Robert T. 

Stafford Disaster Relief and Emergency Assistance Act 

(Stafford Act).2

 The Act allows the President to declare a 

major disaster or an emergency in response to an event 

(or threat) that overwhelms state or local government (to 

include a public health emergency). Ideally, the governor 

of a state must fi rst respond to the disaster and execute 

the state’s emergency plan before requesting that the 

President declare a major disaster or emergency, and the 

governor must certify that the emergency is in excess of 

the state’s ability to handle it. But a governor’s request 

is not necessary for the President to issue an emergency 

declaration if the emergency involves a federal primary 

responsibility, which is a situation where an emergency 

involves a subject area for which the United States exercises exclusive or preeminent responsibility and authority, such as a federal government building.

This declaration is vital in that it triggers access to federal disaster relief funds as appropriated by Congress, 

funds that can be used for many needs including:

 Public assistance, to include emergency work and 

permanent work to assist states, local government, 

and certain private, nonprofi t organizations.

 Individual assistance, such as direct and fi nancial 

assistance to individuals for housing and other disaster-related needs.

 Hazard mitigation to assist state and local governments to reduce the loss of life and property due to 

natural disasters, and enables mitigation measures 

to be implemented during the immediate recovery 

from a disaster.

 Emergency work to assist in meeting threats to life 

and property.

 Permanent work to repair, restore, and replace damaged facilities owned by state and local governments and eligible private nonprofi t organizations.

A critical aspect of the Act is that the fund has several 

billion (109

) dollars which may be immediately available for the emergency needs of state and local governments as appropriated by Congress in the Disaster Relief 

Fund.* Thus, from a fi scal law perspective, Disaster Relief Funds are only limited to those purposes authorized 

by the Stafford Act. The Act authorizes the Federal 

Emergency Management Agency (FEMA) to administer all disaster relief to the states.

PUBLIC HEALTH EMERGENCY DECLARATION

The Secretary of Health and Human Services can declare a public health emergency under Section 319 of the 

Public Health Services Act3

 (hereinafter referred to as 

Section 319), if the Secretary determines that:

 a disease or disorder presents a public health emergency; or 

Public Health Emergency Law: A Primer

for Leaders and Managers in the Military

MAJ Joseph B. Topinka, JAG, USA

Ida Agamy, JD

*The Stafford Act authorizes the President to issue a major disaster declaration to speed a wide range of federal aid to states determined to be overwhelmed by hurricanes or other catastrophes. Financing for the aid is appropriated to the Disaster Relief Fund 

(DRF), administered by the Department of Homeland Security. Funds appropriated to the DRF remain available until expended (a 

“no-year” account). The Stafford Act authorizes temporary housing, grants for immediate needs of families and individuals, the repair 

of public infrastructure, emergency communications systems, and other forms of assistance. Additional information at: http://www.

fema.gov/pdf/about/stafford_act.pdf.
 January – March 2012 59

 a public health emergency, including signifi cant 

outbreaks of infectious diseases or bioterrorist attacks, otherwise exists.

Such a broad defi nition gives the Secretary a great 

amount of fl exibility. The Secretary also has the discretion to determine that a disease or condition presents a 

public health emergency, or a public health emergency 

otherwise exists, based on conditions that exist prior to 

the actual outbreak of disease or natural catastrophe. A 

public health emergency declaration lasts for 90 days, 

but can be terminated earlier if the Secretary determines that the emergency no longer exists. It can also be 

renewed by the Secretary for additional 90-day periods 

if the emergency persists. 

A Presidential declaration under the Stafford Act and the 

public health declaration (PHD) under Section 319 are 

distinct and separate declarations, although often confused as being one and the same. One does not require 

the other, but in some situations, both are required in 

order for the Secretary to exercise certain additional 

authorities not otherwise provided under Section 319. 

For example, both a Presidential declaration under the 

Stafford Act (or the National Emergencies Act, 150 USC 

§§1621, 1631) and a PHD are required for the Secretary 

to waive or modify certain requirements under Section 

1135 of the Social Security Act.4

 Once both are in place, 

the Secretary can waive or modify bed limits for critical 

access hospitals; and certain sanctions contained in the 

Emergency Medical Treatment and Active Labor Act5

and the Health Insurance Portability and Accountability 

Act.6

In general, there is no requirement for a formal request 

to have such a declaration made by the Secretary. After 

a PHD has been issued, the Secretary has broad authority, including making grants, entering into contracts, 

conducting and supporting investigations, and accessing the Public Health Emergency Fund if appropriated 

by Congress. In addition, the Secretary has broad legal 

authority to provide assistance to state and local governments in the absence of a PHD, such as deploying 

the Strategic National Stockpile in advance of a public 

health emergency. Still, a PHD is a requirement for other 

authorities of the Secretary. One in particular involves 

emergency use authorization (EUA) of investigational 

medications. Under the Project Bioshield Act,7

 when the 

Secretary has made a PHD, the Food and Drug Administration may issue an EUA to allow the use of unapproved new drugs, off-label use of drugs approved for 

other purposes, unlicensed biological products, or medical devices not yet approved for the emergency. When 

the Secretary declares a PHD, the DoD “shall, to the 

extent practicable, act consistently with the applicable 

provisions of the declaration.”1(p5)

HEALTHCARE LABOR

The Offi ce of Personnel Management (OPM) develops 

regulations and federal job descriptions. They normally 

require a federal civilian healthcare employee to be licensed in any state. OPM determines qualifi cations and 

verifi es those qualifi cations. Public health emergencies 

do not waive or preempt state licensing requirements for 

these employees.

The Federal Tort Claims Act (FTCA) 8

 covers claims for 

property damage or personal injury or death caused by 

the negligence, wrongful act, or omission of a federal 

(military or civilian) employee acting within the scope 

of his/her employment. The FTCA coverage applies to 

an employee’s offi cial duties when the employee’s actions in question are within the scope of employment. 

The FTCA does not apply to activities conducted outside 

the employee’s offi cial duties as a federal employee.

The Federal Employees’ Compensation Act (FECA) 9

provides compensation benefi ts to federal civilian employees for disability due to personal injury sustained by 

an employee while in the performance of work-related 

duties. Benefi ts will not be paid, however, if the injury 

is caused by the willful misconduct or by the employee’s 

intention to bring about his or her injury, or if intoxication is the proximate cause of the injury. 

Overseas, the Foreign Claims Act10 and the Military 

Claims Act,11 as well as the North Atlantic Treaty Organization (NATO) Status of Forces Agreement (in accordance with the International Agreements Claims Act12) 

address issues of liability. 

The Emergency System for Advanced Registration of 

Volunteer Health Professionals (ESAR-VHP)* is a system for advanced registration of healthcare providers 

developed by the Department of Health and Human Services to verify licensure, assign standardized credential 

levels, track hospital privileges, and mobilize volunteers. 

Registration with ESAR-VHP does not, in and of itself, 

constitute federal employment. Registration with ESAR-VHP does not qualify a public health professional 

for coverage under FTCA or FECA, and does require an 

additional mechanism for license reciprocity. However, 

upon declaration of an emergency, DoD Instruction 

6200.031

 does allow MTF commanders to supplement 

the available staff of healthcare personnel with volunteers, using information and documentation from the 

*Information available at: http://www.phe.gov/esarvhp/pages/

about.aspx.
60 http://www.cs.amedd.army.mil/amedd_journal.aspx

ESAR-VHP. Such volunteers are considered employees 

of the DoD.1(p29)

For nonfederal employees, many states have provisions for some sort of liability protection for nonfederal 

healthcare providers. For example, Good Samaritan statutes may offer liability protection to healthcare workers, 

but differ by states in terms of breadth of coverage. The 

Federal Volunteer Protection Act13 and certain state volunteer protection acts may provide liability protection 

for healthcare providers. The Emergency Management 

Assistance Compact,14 of which all states are members, 

provides immunity to state offi cers and employees that 

other states share with an affected state pursuant to the 

compact. The Uniform Emergency Volunteer Health 

Practitioners Act* is a model law that addresses liability 

and licensing, but it has not been adopted by all states.

ISOLATION AND QUARANTINE

In general, under the police powers of the 10th Amendment to the US Constitution, the states have primary 

authority, including public health authority, for controlling the spread of communicable diseases within their 

borders. However, jurisdictional issues may arise when 

the spread of communicable diseases goes beyond state 

borders. Under Section 361 of the Public Health Services Act,3

 the Centers for Disease Control and Prevention 

(CDC) may apprehend, examine, detain, or conditionally release persons with certain communicable diseases 

that are listed by an executive order.†

 In addition, the 

CDC may apprehend and examine individuals traveling 

from one state into another if the CDC Director reasonably believes that such individuals may be infected with 

a quarantinable disease in its qualifying stage. A qualifying stage means that the disease is in a communicable 

stage, or a precommunicable stage, but only if the disease would be likely to cause a public health emergency 

if transmitted to other individuals.15 Federal regulations 

governing quarantine and isolation are found in the 

Code of Federal Regulations at 42 CFR§§70 and 71. Part 

70 governs interstate quarantine and isolation, while 

Part 71 deals with quarantine and isolation of foreign 

persons or imports into the United States or its possessions. Part 71 does not apply to isolation and quarantine 

in foreign lands, but rather addresses protection against 

the introduction, transmissions, and spread of communicable disease from foreign countries into the United 

States or its possessions.

In general, isolation is the separation of an individual 

or group infected and/or suspected to be infected with 

a communicable disease from those who are healthy, in 

such a place and manner to prevent the spread of that 

disease.1(p37) Quarantine deals with the separation of an 

individual or group that has been exposed to a communicable disease, but is not yet ill, from others who have not 

been so exposed, in such manner and place to prevent the 

possible spread of the communicable disease.1(p38) Both 

involve the restriction of the freedom of movement, a liberty interest protected by the due process clauses of the 

5th and 14th Amendments to the US Constitution. Due 

process includes reasonable and adequate notice of the 

action that the government is taking, an opportunity to 

be heard on a timely basis, access to legal counsel, and 

review of the government’s actions by an impartial decision-maker. DoD Instruction 6200.031

 attempts to meet 

these due process requirements by ensuring that every 

individual or group subject to quarantine (and presumably isolation as well) is provided written notice of the 

reason for the quarantine and plan of examination, testing, and/or treatment designed to resolve the reason for 

the quarantine. The individual or group is allowed to provide information supporting an exemption or release. The 

military commander or designee shall review such information, and they will exercise independent judgment 

and promptly render a written decision on the need for 

the continued quarantine. Individuals and groups subject 

to the quarantine shall be advised that violators may be 

charged with a crime and subject to punishment of a fi ne 

or imprisonment for not more than one year.16 In the case 

of military personnel, these potential sanctions are in addition to applicable actions by military legal authorities.

COMMAND AUTHORITY

Command authority in terms of a public health emergency has historically been a vague yet powerful concept. 

DoD Instruction 6200.031

 has attempted to defi ne that 

authority. One aspect of that authority involves the declaration of a public health emergency within the scope 

of the commander’s authority and the implementation of 

relevant emergency health powers to achieve the greatest public health benefi t while maintaining operational 

effectiveness. This authority will cover military personnel but may also include persons other than military personnel who are present on a DoD installation or in areas 

under DoD control. According to Enclosure 3 of DoD 

Instruction 6200.031(pp15-25):

*http://www2a.cdc.gov/phlp/docs/UEVHPA.pdf

†Federal quarantine and isolation authority is limited to those communicable diseases specifi ed in an executive order of the President, ie, “quarantinable diseases.” The most current list is found in Executive Order 13295, as amended by Executive Order 13375. 

These quarantinable diseases include cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, viral hemorrhagic 

fevers, severe acute respiratory syndrome, and infl uenza caused by novel or reemerging infl uenza viruses that are causing or have 

the potential to cause a pandemic.

PUBLIC HEALTH EMERGENCY LAW: A PRIMER FOR LEADERS AND MANAGERS IN THE MILITARY
 January – March 2012 61

THE ARMY MEDICAL DEPARTMENT JOURNAL

Emergency Health Powers many include:

(a) Collecting specimens and performing tests on any 

property or on any animal or disease vector, living or 

deceased, as reasonable and necessary for emergency 

response. 

(b) Closing, directing the evacuation of, or decontaminating any asset or facility that endangers public health; 

decontaminating or destroying any material that endangers public health; or asserting control over any animal 

or disease, living or deceased, vector that endangers 

public health. 

(c) Using facilities, materials, and services for purposes of communications, transportation, occupancy, fuel, 

food, clothing, health care, and other purposes, and controlling or restricting the distribution of commodities as 

reasonable and necessary for emergency response. 

(d) Controlling evacuation routes on, and ingress and 

egress to and from, the affected DoD installation and/or 

military command. 

(e) Taking measures to safely contain and dispose of 

infectious waste as may be reasonable and necessary for 

emergency response. 

(f) Taking measures reasonable and necessary, pursuant to applicable law, to obtain needed health care 

supplies, and controlling use and distribution of such 

supplies. 

(g) Directing US military personnel to submit to a medical examination and/or testing as necessary for diagnosis or treatment. Persons other than military personnel 

may be required as a condition of exemption or release 

from restrictions of movement to submit to a physical 

examination and/or testing as necessary to diagnose the 

person and prevent the transmission of a communicable 

disease and enhance public health and safety. Qualifi ed 

personnel shall perform examinations and testing. 

(h) Restricting movement to prevent the introduction, 

transmission, and spread of communicable diseases and/

or any other hazardous substances that pose a threat to 

public health and safety. In the case of military personnel, restrictions of movement, including isolation, or any 

other measure necessary to prevent or limit transmitting 

a communicable disease and enhance public safety may 

be implemented. In the case of persons other than military personnel, restrictions of movement may include 

isolation or limiting ingress and egress to, from, or on a 

DoD installation and/or military command. 

(i) Isolating individuals or groups to prevent the introduction, transmission, and spread of a communicable 

disease and/or any other hazardous substances that pose a 

threat to public health and safety. Isolation measures may 

be implemented in health care facilities, living quarters, 

or other buildings on a DoD installation and/or military 

command. Isolation measures do not lessen the responsibilities of the Military Health System (MHS) to provide 

medical care to infected and/or affected persons to the 

standard of care feasible given resources available.

CHALLENGES OVERSEAS

Because of the scope and variance among the laws in 

the various foreign countries in which the United States 

has military personnel, no attempt will be made here to 

discuss the particularities of dealing with a public health 

emergency in any specifi c country. Instead, a general 

overview is provided with citations to resources to assist in the creation of solid preparations and plans for a 

particular area of operations. 

The greatest challenge for those working and stationed 

in foreign countries is that most of the authorities previously stated in this article do not apply. FEMA has 

no authority in foreign lands. There is no access to the 

Disaster Relief Fund (however, Overseas Humanitarian, 

Disaster, and Civic Assistance funds may be available 

to pay for humanitarian assistance operations and activities authorized by 10 USC §2651 and other authority). 

Information and resources are presented in the Figure.

With the possible exception of the land upon which our 

US embassies are situated, we typically have no “federal 

jurisdiction” on foreign soil. DoD Instruction 6200.031

does, however, apply to DoD facilities located both within the geographic United States and in foreign countries, 

but it clearly cautions that the instruction is limited in 

application for those outside of the United States:

In areas outside the United States, this Instruction applies to the extent it is consistent with local conditions, and 

the requirements of applicable treaties, agreements, and 

other arrangements with foreign governments and allied 

forces. Implementation of these provisions at non-US installations and fi eld activities shall require formal agreements with host-nation authorities as well as allied and coalition forces.1(p3)

It is, therefore, imperative for all leaders, managers, and 

legal advisors to be intimately familiar with the host nation’s public health emergency laws, protocols, and procedures. The Department of State is the lead federal agency 

for requests for assistance originating outside of DoD. 

Commands and their public health emergency offi cers 

will closely coordinate with both the host nation authorities and the Department of State.
62 http://www.cs.amedd.army.mil/amedd_journal.aspx

Although there is a tendency to defer all legal issues in 

public health emergency law to the medical attorneys, to 

do so is a grave oversight. In overseas locations in particular, the scope of potential legal issues grows exponentially. Potential legal issues arising out of a broad scope 

public health emergency are, but are not limited to:

Contracts–failures of host nation contractors to comply with or complete contracts for fear of exposure; 

because of quarantine or isolation limitations; because 

of loss of capability due to involvement in the emergency (illness, deaths, or tasked for higher priority missions). For example, consider the implications of food

The following US laws and regulations do not apply on foreign soil:

The Stafford Act, 42 USC §§5121-52072 42 USC §5170b

42 USC §5192 42 USC §5172

42 USC §5189e 42 USC §311

42 USC §2811(b)(4)(B) 44 CFR, Emergency Management and Assistance

Homeland Security Act of 2002, Pub L 107-296

Executive Order 12148: Federal Emergency Management, July 20, 1979

Although not directly applicable to public health emergencies, good information and possible resources can be found by 

reviewing the Defense Threat Reduction Agency’s Foreign Consequence Management Legal Deskbook, January 2007.

Available at: http://www.dtra.mil/documents/business/current/FCMLegalDeskbook.pdf

Further Information Sources

International Law

Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of their Forces, June 19, 1951 

(NATO SOFA)

Agreement to Supplement the Agreement Between the Parties to the North Atlantic Treaty Regarding the Status 

of their Forces With Respect to Foreign Forces Stationed in the Federal Republic of Germany, August 3, 1959, 

revised effective March 29, 1998 (NATO SOFA Supplementary Agreement)

DoD Directive 5530.3: International Agreements, June 11, 1987, w/change 1, February 18, 1991

Chairman of the Joint Chiefs of Staff Instruction 2300.01C: International Agreements, March 15, 2006

Army Regulation 27-50: Status of Forces Policies, Procedures, and Information, December 15, 1989

Army Regulation 550-51: International Agreements, April 15, 1998

Rules for the Use of Force

Annex L (AT/FP Rules for the Use of Force) to Army in Europe Regulation 525-13: Antiterrorism (AT), 

November 15, 2005 (pending revision)

10 USC §404 [Foreign Disaster Assistance, 2004]

10 USC §2551 [Humanitarian Assistance, 2004]

DoD Directive 6200.3: Emergency Health Powers on Military Installations, May12, 2003

Dept of the Army Installation Management Directive 6200.3: Implementation of DoD Directive 62003.3, 

Emergency Health Powers on Military Installations, January 27, 2004

Specifi c to Europe and European Command areas of responsibility, but useful for reference

US European Command Directive 5-13, International Agreements, Authorities and Responsibilities,

January 27, 1994

US European Command Directive 45-3, Foreign Criminal Jurisdiction over US Personnel, March17, 2001

Army in Europe Regulation 1-3, International and Other Agreements, December 22, 2005

Army in Europe Regulation 550-50, Exercise of Foreign Criminal Jurisdiction over US Personnel, January 31, 2001

Army in Europe Regulation 550-56, Exercise of Jurisdiction by German Courts and Authorities Over US Personnel, 

December 11, 2009

Army in Europe Regulation 27-3, Sending State Forces Activities and Coordination, September 22, 2008

Information and resources regarding the authority and/or applicability of laws and military regulations in 

foreign countries.

PUBLIC HEALTH EMERGENCY LAW: A PRIMER FOR LEADERS AND MANAGERS IN THE MILITARY
 January – March 2012 63

THE ARMY MEDICAL DEPARTMENT JOURNAL

delivery to dining facilities and commissaries which 

is halted for any of the above reasons.

Legal Assistance–wills, powers of attorney, etc. 

But consider also the special requirements necessary to accommodate a sudden rise in the number 

of widows/widowers and orphans, abandoned property, retirees needing assistance, etc.

Labor Law–employees unable or unwilling to perform their duties; employees being required to work 

outside of their scope of employment; addressing 

volunteers, overtime, etc.

International Law–addressing issues pertaining to 

host nation employees; access to our installations; 

movement of personnel, property, etc; addressing 

concerns of US personnel living off installations; 

dealing with criminal sanctions against US personnel in host nation courts for failures to comply with 

host nation law.

Medical Law–examples include addressing issues 

of emergency health powers, emergency use authorizations, standards of care, Health Insurance 

Portability and Accountability Act (HIPAA)6

 and 

temporary waiver of HIPAA sanctions, medical 

malpractice, medical credentialing/privileging, etc.

Status of forces agreements (SOFAs) should be carefully reviewed to determine what language addresses 

public health emergencies. Article 53A of the German 

Supplement to the NATO SOFA, for example, provides 

that local, host nation, authorities may “regulate to protect health on US forces’ installations.” It is imperative 

that individuals have an advanced understanding as 

to how the respective host nation authorities interpret 

such words. Keep in mind, however, that SOFAs do not 

apply to US civilians not accompanying the forces (for 

example, expatriate US residents abroad), contractors, 

US civilians vacationing in the foreign country, or third 

country military personnel on leave (however, those on 

temporary duty may be covered).

Finally, perhaps the most useful resource is the International Health Regulations (IHRs),17 developed by the 

World Health Assembly in 2005, which establishes an 

international legal framework to provide for a public 

health response to the international spread of disease. 

The IHRs constitute an international legal instrument 

that is binding on 194 countries across the globe, including all World Health Organization member states. The 

revised IHRs, which entered into force as international 

law on June 15, 2007, provide the legal framework to

...prevent, protect against, control and provide a public 

health response to the international spread of disease in 

ways that are commensurate with and restricted to public 

health risks, and which avoid unnecessary interference 

with international traffi c and trade.17(p10)

The IHRs have provisions for procedures at international airports and ports, refusal of entry quarantines, and 

tracing of contacts in times of emergency. Every leader 

and lawyer involved in public health emergency planning should avail themselves of this useful resource and 

determine its applicability within their host nation(s).

CONCLUSION

All leaders and managers in the DoD should be familiar with DoD Instruction 6200.03.

1

 It is a critical tool in 

planning for a public health emergency. In addition, they 

need to have a solid understanding of the federal laws 

which are behind this instruction; some of which have 

been addressed in this article. Ultimately, reacting to a 

public emergency will be a team approach. The authors 

have some parting recommendations to leaders and 

managers as you plan for dealing with a public health 

emergency:

1. Become familiar with the CDC’s Frequently Asked 

Questions about Federal Public Health Emergency Law

(available at http://www2a.cdc.gov/phlp/emergencyprep/

FPHELfaq.asp). It is a comprehensive collection of easily 

located, specifi c information on subjects covered in this 

article, and more.

2. Know your supporting legal counsel and establish 

a relationship early on. Train with counsel. Incorporate 

him/her into your exercises and your real-life situations.

3. Have a basic understanding of the legal framework 

both in the military and civilian environment. Even 

though this article has addressed federal, state, local, 

and, overseas legal issues, host nation issues may arise 

as well. In other words, what happens outside the military installation’s gate must not be ignored. Cooperation 

with local leaders and managers in a public health emergency is critical.

4. Get the facts before making any decisions. The law 

is only as good as the facts to which the law is applied. 

Incomplete facts will result in incomplete and possibly detrimental decisions and negative public health 

consequences.
64 http://www.cs.amedd.army.mil/amedd_journal.aspx

REFERENCES

1. Department of Defense Instruction 6200.03: Public Health Emergency Management Within the Department of Defense. Washington, DC: US Dept of 

Defense; March 5, 2011. Available at: http://www.

dtic.mil/whs/directives/corres/pdf/620003p.pdf.

2. 42 USC §§5121-5207.

3. 42 USC §247d

4. 42 USC §1320b-5. 

5. 42 USC §1395dd.

6. Pub L No 104-191, 110 Stat 1936.

7. 21 USC §360bbb-3.

8. 28 USC §§2672-2680, §1346(b).

9. 5 USC §81 et seq.

10. 10 USC §2734.

11. 10 USC §2733.

12. 10 USC §2734a, §2734b

13. 42 USC §§14501-14505.

14. Pub L No 104-321.

15. 42 USC §264.

16. 42 USC §271 as implemented by 42 CFR, Part 71.2.

17. . 2nd ed. Geneva, International Health Regulations

Switzerland: World Health Organization; 2005. Available at: http://www.who.int/ihr/9789241596664/en/

index.html. Accessed November 10, 2011.

AUTHORS

MAJ Topinka is Deputy Staff Judge Advocate, US Army 

Medical Command, Fort Sam Houston, Texas.

Ms Agamy is Deputy Command Judge Advocate, US 

Army Europe Regional Medical Command, Heidelberg, 

Germany.

PUBLIC HEALTH EMERGENCY LAW: A PRIMER FOR LEADERS AND MANAGERS IN THE MILITARY
 January – March 2012 65

INTRODUCTION

As the US Army Medical Command’s Chief Paralegal 

Noncommissioned Offi cer, I have had the opportunity 

to talk and get to know a phenomenal group of Soldiers 

and civilian personnel who make up this command’s 

paralegal workforce. These paralegal specialists (military occupational specialty 27D) and civilian paralegals 

are well educated, professional, and hard-working. Unfortunately, they are unknown to many within MEDCOM. Some of them are heroes in disguise. Some of 

them are heroes waiting to be challenged. In any event, 

these paralegals specialists and paralegals are a resource 

which should not be ignored and which I encourage all 

leaders and personnel within this command to utilize to 

their fullest potential.

TRAINING AND EXPERIENCE

Military paralegal specialists provide valuable services, and are an integral part of the Army’s legal system. 

They provide legal and administrative support in such 

diverse areas as criminal law, ethics, administrative law, 

contract law, fi scal law, and, yes, health law. They are 

highly skilled and highly trained. Paralegal specialists 

require 10 weeks of advanced individual training and 

on-the-job instruction in such matters as legal terminology, research techniques, preparing legal documents, 

interviewing witnesses, and transcription. By the time 

paralegal specialists are assigned to a medical center or 

a medical region, they have had years of experience and 

can provide in-depth legal support to MEDCOM commanders, staff, and personnel.

Paralegals, like paralegal specialists, also provide invaluable legal services in many of the same areas described 

earlier. However, the status of the individual specialist is 

based on the state in which he or she was trained. Some 

may have a paralegal certifi cate which is usually the result of a program that targets those who already possess 

a college degree or prior legal experience. The certifi cate 

program focuses heavily on litigation, research, writing, 

ethics, and legal documentation. Others may have an 

associate degree in applied science in paralegal studies 

which requires courses in civil litigation, legal research, 

legal analysis and writing, and ethics. These courses are 

supplemented by requirements determined by the student’s specialization. Some of these programs require an 

externship in order to provide hands-on job experience 

in the legal fi eld. Finally, there is the bachelor’s degree in 

paralegal studies. This degree offers the most complete 

education for those with no prior experience in the legal 

industry. The primary advantage of a bachelor’s degree 

program over the associate’s and certifi cate programs is 

the focus on the actual execution of the skills rather than 

a simple understanding of the ideas and principles.

IMPORTANCE OF ROLE

Paralegal specialists and paralegals have been a mainstay in the Army Judge Advocate General’s (JAG) Corps 

since World War II. Regardless of the type of command, 

they have been a multiplier that correlates to mission 

success. They both provide direct support to the military 

and civilian attorneys within the command. They very 

often are the “boots on the ground” representative of 

the Judge Advocate General and the Corps Regimental 

Command Sergeant Major in dealings with commanders and staff. They have the ability to function in any 

given environment. They have the ability to do everything that an attorney can, with the exception of practicing law. They can research any given subject. They can 

draft legal documentation on any given topic. The can 

answer complex questions.

THE FUTURE

Within the MEDCOM, over 50 civilian and military paralegals work in unison to provide MEDCOM with unparalleled support. As diverse as the practice of medicine 

and its many disciplines, paralegal specialists and paralegals can adapt to any scenario. As the Army Medical 

Command grows, the need for operational and sustained 

legal support will increase. The increased demand for 

comprehensive health law support will create a greater 

demand for paralegal specialist and paralegal support. It 

is without question that there will be a paralegal specialist or paralegal involved in each and every decision as 

MEDCOM becomes an even greater combat asset.

If the noncommissioned offi cer is the backbone of the 

US Army, the paralegal specialist and paralegal are 

the nerve that provides an electric spark which makes 

the JAG Corps work. MEDCOM has been graced with 

many professional and hardworking Paralegals that are 

committed to mission success. Their level of expertise 

and knowledge is unsurpassed and makes me proud to 

be part of this tremendous organization. While it is always easy to “call the lawyer,” it is even easier to just 

call your paralegal. They are the consummate professionals and the foundation upon which the Army Judge 

Advocate General’s Corps is built.

Army Paralegals and Paralegal Specialists

MSG Christopher Chouinard, USA
66 http://www.cs.amedd.army.mil/amedd_journal.aspx

The Judge Advocate General’s Corps of the United States Army is composed of Army offi cers who are lawyers and who 

provide legal services to the Army at all levels of command. The Judge Advocate General’s Legal Service includes judge 

advocates, warrant offi cers, paralegal noncommissioned offi cers and junior enlisted personnel, and civilian employees. 

The Judge Advocate General is a lieutenant general. All military offi cers are appointed by the US President subject to 

the advice and consent of the Senate, but the Judge Advocate General is one of the few positions in the Army explicitly 

provided for by law in Title 10 of the United States Code and which requires a distinct appointment.

THE JUDGE ADVOCATE GENERAL

General George Washington founded the US Army JAG Corps on July 29, 1775, with the appointment of William 

Tudor as the Judge Advocate General. The Army Judge Advocate General’s Corps is the oldest of the judge advocate 

communities in the US armed forces, as well as the oldest “law fi rm” in the United States. The Judge Advocate General 

serves a term of 4 years. LTG Dana K. Chipman, appointed in October 2009, is the 38th Judge Advocate General of the 

Army. 

MISSION

Judge advocates serve in the position of Staff Judge Advocate on the special and personal staff of general offi cers in 

command who are general court-martial convening authorities (the authority to convene a general court-martial). Staff 

Judge Advocates advise commanders on the full range of legal matters encountered in government legal practice and 

provide advice on courts-martial as required by the Uniform Code of Military Justice. Subordinate judge advocates 

prosecute courts-martial, and others, assigned to the independent US Army Trial Defense Service and US Army Trial 

Judiciary, serve as defense counsel and judges. The almost 2,000 full-time judge advocates and civilian attorneys 

who serve The Judge Advocate General’s Corps comprise the largest group of attorneys who serve the US Army. 

Several hundred other attorneys practice under the Chief Counsel of the United States Army Corps of Engineers and the 

Command Counsel of the United States Army Materiel Command.

Judge advocates are deployed throughout the United States and around the world, including Japan, South Korea, 

Germany, Kosovo, Iraq, Afghanistan, Kuwait, and Qatar. They provide legal assistance to soldiers, adjudicate claims 

against the Army, advise commands on targeting decisions and other aspects of operational law, and assist the command 

in administering military justice by preparing nonjudicial punishment actions, administrative separation actions, and 

trying criminal cases at court-martial.

In addition to the active component judge advocates, there are approximately 5,000 attorneys who serve in the US Army 

Reserve and the Army National Guard. Several hundred Reserve and National Guard attorneys have left their civilian 

practices to serve in support of Operations Iraqi Freedom and Enduring Freedom.

LEGAL CENTER AND SCHOOL

The Judge Advocate General’s School began in World War II at the University of Michigan to train new judge advocates 

as the Judge Advocate General’s Department rapidly expanded. It was disestablished for a short time after the war. It 

was then reestablished at Fort Myer in Arlington, Virginia, but, after a short stay, was relocated to the University of 

Virginia in Charlottesville in 1951. The Judge Advocate General’s Legal Center and School adjoins, but is distinct from, 

the University of Virginia School of Law. The Commandant of the Judge Advocate General’s School is authorized by 

Congress to award a Master of Laws degree. The school is the only federal institution to have American Bar Association 

accreditation as an America’s law schools. Judge Advocates from all 5 armed forces of the United States and international 

students attend the annual Judge Advocate Offi cer Graduate Course in which the Master’s degree is awarded. The Legal 

Center and School also trains the Army’s new judge advocates, provides continuing legal education for judge advocates 

and lawyers from throughout the United States government, and trains the Army’s paralegal noncommissioned offi cers 

and court reporters. The School trains those offi cers appointed military judges, irrespective of service. 

INSIGNIA

The branch insignia consists of a gold pen crossed above a gold sword, superimposed over a laurel wreath. The pen 

signifi es the recording of testimony, the sword represents the military character of the JAG Corps, and the wreath 

indicates honor. The insignia was created in May 1890 in silver and changed to gold in 1899.

The Judge Advocate General’s Corps of the United States Army
 January – March 2012 67

THE ARMY MEDICAL DEPARTMENT JOURNAL

The US Army Medical Department Regiment

The US Army Medical Department was formed on July 27, 1775, when the Continental Congress authorized a Medical Service for an army of 20,000 men. It created the Hospital Department and named Dr Benjamin Church of Boston 

as Director General and Chief Physician. On 14 April, 1818 the Congress passed an Act which reorganized the staff 

departments of the Army. The Act provided for a Medical Department to be headed by a Surgeon General. Dr Joseph 

Lovell, appointed Surgeon General of the United States Army in April 1818, was the fi rst to hold this position in the 

new organization. The passage of this law marks the beginning of the modern Medical Department of the United 

States Army.

Throughout its early history, the size and mission of the US Army Medical Department would wax and wane in response to military events around the world. There was, however, no formal regimental organization until World War I. 

Then, in the late 1950s, the brigade replaced the regiment as a tactical unit. In the reorganization that followed, some 

Army units lost their identity, their lineage, their history. This loss did not go unnoticed. The US Army Regimental 

System was created in 1981 to provide soldiers with continuous identifi cation with a single regiment. Department of 

the Army Regulation 600-82, The US Army Regimental System, states the mission of the regiment is to enhance combat effectiveness through a framework that provides the opportunity for affi liation, develops loyalty and commitment, 

fosters a sense of belonging, improves unit esprit, and institutionalizes the war-fi ghting ethos.

The US Army Medical Department Regiment was activated on July 28, 1986, during ceremonies at Fort Sam Houston 

in San Antonio, Texas, the “Home of Army Medicine.” Lieutenant General Quinn H. Becker, the US Army Surgeon 

General and AMEDD Regimental Commander, was the reviewing offi cer. He was joined by general offi cers of the US 

Army Reserves and the Army National Guard, representing the signifi cant contributions and manpower of the reserve 

forces in the Total Army concept.

INSIGNIA

The AMEDD Regimental Distinctive Insignia was designed by the Institute of Heraldry and is one of the oldest crests 

In the Army today. The 20 stars on the crest correspond to the number of states in the Union between December 10, 

1817, and December 3, 1818. The origin of the crest dates from the Act of April 14, 1818, by which the Medical Department of the Army was fi rst organized.

The alternating red and white stripes on the left side of the shield are the 13 stripes of the American Flag. The green 

staff is the staff of Asclepius (according to Greek mythology, the fi rst healer, the son of Apollo, the sun god); and green 

was a color associated with the Medical Corps during the last half of the 19th century. The phrase “To Conserve Fighting Strength” gives testimony to our mission as combat multipliers and guardians of our Nation’s strength and peace.

INFORMATION

The Regimental web site (http://ameddregiment.amedd.army.mil/default.asp) is designed to provide you with useful 

information about the US Army Medical Department (AMEDD) Regiment. Through the web site, you can learn the 

history of the AMEDD Regiment, the symbolism behind our heraldic items, how to wear the Regimental Distinctive 

insignia, and various programs available to you and your unit.

The Offi ce of the AMEDD Regiment is located in Aabel Hall, Building 2840, on Fort Sam Houston, Texas. The 

Regimental staff can provide further information pertaining to the history of the Army Medical Department and the 

AMEDD Regiment, and assist with any of the services described in the web page.

For additional information please contact the Army Medical Department Regimental Offi ce at the following address:

Commander

US Army Medical Department Regiment 

ATTN: MCCS-GAR 

2250 Stanley Road 

Fort Sam Houston, Texas 78234-6100

The telephone number is (210) 221-8455 or DSN 471-8455, fax 8697.

Internet: http://ameddregiment.amedd.army.mil/

Email: amedd.regiment@amedd.army.mil
68 http://www.cs.amedd.army.mil/amedd_journal.aspx

The headquarters and primary instructional facility of the Army 

Medical Department Center and School, located on the Military 

Medical Education and Training Campus, Fort Sam Houston, Texas.
SUBMISSION OF MANUSCRIPTS TO THE ARMY MEDICAL DEPARTMENT JOURNAL

The United States Army Medical Department Journal is published quarterly to expand knowledge of domestic and international 

military medical issues and technological advances; promote collaborative partnerships among the Services, components, Corps, 

and specialties; convey clinical and health service support information; and provide a professional, high quality, peer reviewed 

print medium to encourage dialogue concerning health care issues and initiatives. 

REVIEW POLICY

All manuscripts will be reviewed by the AMEDD Journal’s Editorial Review Board and, if required, forwarded to the appropriate 

subject matter expert for further review and assessment. 

IDENTIFICATION OF POTENTIAL CONFLICTS OF INTEREST

1. Related to individual authors’ commitments: Each author is responsible for the full disclosure of all financial and personal 

relationships that might bias the work or information presented in the manuscript. To prevent ambiguity, authors must state 

explicitly whether potential conflicts do or do not exist. Authors should do so in the manuscript on a conflict-of-interest 

notification section on the title page, providing additional detail, if necessary, in a cover letter that accompanies the 

manuscript. 

2. Assistance: Authors should identify Individuals who provide writing or other assistance and disclose the funding source for this 

assistance, if any. 

3. Investigators: Potential conflicts must be disclosed to study participants. Authors must clearly state whether they have done 

so in the manuscript. 

4. Related to project support: Authors should describe the role of the study sponsor, if any, in study design; collection, analysis, 

and interpretation of data; writing the report; and the decision to submit the report for publication. If the supporting source

had no such involvement, the authors should so state. 

PROTECTION OF HUMAN SUBJECTS AND ANIMALS IN RESEARCH

When reporting experiments on human subjects, authors must indicate whether the procedures followed were in accordance with 

the ethical standards of the responsible committee on human experimentation (institutional and national) and with the Helsinki 

Declaration of 1975, as revised in 2000. If doubt exists whether the research was conducted in accordance with the Helsinki 

Declaration, the authors must explain the rationale for their approach and demonstrate that the institutional review body 

explicitly approved the doubtful aspects of the study. When reporting experiments on animals, authors should indicate whether the 

institutional and national guide for the care and use of laboratory animals was followed. 

INFORMED CONSENT

Identifying information, including names, initials, or hospital numbers, should not be published in written descriptions, 

photographs, or pedigrees unless the information is essential for scientific purposes and the patient (or parent or guardian) gives 

written informed consent for publication. Informed consent for this purpose requires that an identifiable patient be shown the 

manuscript to be published. Authors should disclose to these patients whether any potential identifiable material might be 

available via the Internet as well as in print after publication. Patient consent should be written and archived, either with the 

Journal, the authors, or both, as dictated by local regulations or laws. 

GUIDELINES FOR MANUSCRIPT SUBMISSIONS

1. Articles should be submitted in digital format (preferably an MS Word document on CD or floppy disk) with one printed copy of 

the manuscript. Ideally, a manuscript should be no longer than 24 double-spaced pages. However, exceptions will always be 

considered on a case-by-case basis. 

2. The American Medical Association Manual of Style governs formatting in the preparation of text and references. All articles 

should conform to those guidelines as closely as possible. Abbreviations/acronyms should be limited as much as possible. 

Inclusion of a list of article acronyms and abbreviations can be very helpful in the review process and is strongly encouraged.

3. A complete list of references cited in the article must be provided with the manuscript, with the following required data: 

 Reference citations of published articles must include the authors’ surnames and initials, article title, publication title, 

year of publication, volume, and page numbers. 

 Reference citations of books must include the authors’ surnames and initials, book title, volume and/or edition if 

appropriate, place of publication, publisher, year of copyright, and specific page numbers if cited. 

 Reference citations for presentations, unpublished papers, conferences, symposia, etc, must include as much identifying 

information as possible (location, dates, presenters, sponsors, titles). 

4. Either color or black and white photographs may be submitted with the manuscript. Color produces the best print reproduction

quality, but please avoid excessive use of multiple colors and shading. Digital graphic formats (JPG, GIF, BMP) and MS Word 

photo files are preferred. Prints of photographs are acceptable. Please do not send photos embedded in PowerPoint. Images 

submitted on slides, negatives, or copies of X-ray film will not be published. For clarity, please mark the top of each 

photographic print on the back. Tape captions to the back of photos or submit them on a separate sheet. Ensure captions and 

photos are indexed to each other. Clearly indicate the desired position of each photo within the manuscript. 

5. The authors’ names, ranks or academic/certification credentials, titles or positions, current unit of assignment, and contact 

information must be included on the title page of the manuscript. 

6. Submit manuscripts to: 

EDITOR, AMEDD JOURNAL

AHS CDD BLDG 4011 

2377 GREELEY RD STE T 

FORT SAM HOUSTON, TX 78234-7584 

DSN 471-6301 

Comm 210-221-6301 

Email: amedd.journal@amedd.army.mil 
PIN: 10242-000