MILITARY

COMMANDER

THE

AND THELAW
The Military Commander and the Law is a publication of The Judge 

Advocate General’s School. This publication is used as a deskbook 

for instruction at various commander courses at Air University. It also 

serves as a helpful reference guide for commanders in the field, providing 

general guidance and helping commanders to clarify issues and identify 

potential problem areas. As with any publication of secondary authority, 

this deskbook should not be used as the basis for action on specific cases. 

Primary authority, much of which is cited in this edition, should first be 

carefully reviewed. Finally, this deskbook does not serve as a substitute for 

advice from the staff judge advocate.

Readers with questions or comments concerning this publication should 

contacts the Editors, The Military Commander and the Law, at the 

following address:

The Judge Advocate General’s School

150 Chennault Circle (Bldg 694)

Maxwell Air Force Base, Alabama 36112-6418

Comm.(334) 953-2802 or DSN 493-2802

AFLOA.AFJAGS@us.af.mil

This publication is available at: http://www.afjag.af.mil/library

On the cover: F-22 Raptor pilot (U.S. Air Force photo/Technical Sergeant Ryan Cran), A-10 

Thunderbolt pilot (U.S. Air Force photo/Staff Sergeant Joe W. McFadden), Air Force Honor Guard 

at Arlington National Cemetery (U.S. Air Force photo/Technical Sergeant Joshua L. DeMotts), 

military working dog handler (U.S. Air Force photo/Airman First Class Dennis Hoffman), RED 

HORSE squadron (U.S. Air Force photo/Airman First Class Joseph Pick), over iStockphotoTM 

background images by chainatp.

THE JUDGE ADVOCATE GENERAL’S SCHOOL

UNITED STATES AIR FORCE
i

Edition Thirteen 2016

THE MILITARY COMMANDER

AND THE LAW

PUBLICATION LAYOUT and COVER DESIGN

MS. THOMASA T. PAUL

COLONEL KIRK L. DAVIES, USAF

Commandant, The Judge Advocate General’s School

MAJOR GRAHAM H. BERNSTEIN

Editor-in-Chief

LIEUTENANT COLONEL JENNIFER L. CLINE

LIEUTENANT COLONEL ERIC M. JOHNSON 

MAJOR LAURA C. DESIO

CAPTAIN SETH W. DILWORTH

Executive Editors

EDITORIAL BOARD

Major Christopher D. Cazares

Major Eric H. Frenck

Major Nate G. Himert

Major Israel D. King

Major Teah L.F. Lambright

Major Alex L. Lowry

Major Jamie L. Mendelson

Major Nicole M. Torres

Captain Stephen L. McQuillan

Captain Adam G. Mudge

Captain Amanda K. Snipes

Captain Travis L. Vaughan

First Lieutenant Sean R. McDivitt

First Lieutenant Nathanael D. Okhuysen

Master Sergeant Aviva D. Reinhardt

Technical Sergeant Lacey N. Quinton 

Technical Sergeant Adria D. Winlock

Mr. Mark D. Stoup
ii

SPECIAL THANKS TO

Headquarters U.S. Air Force Administrative Law Directorate (AF/JAA)

Headquarters U.S. Air Force Operations and International Law Directorate (AF/JAO)

Air Force Legal Operations Agency, Civil Law and Litigation Directorate (AFLOA/JAC)

Air Force Legal Operations Agency, Community Legal Services Directorate (AFLOA/CLS) 

Air Force Legal Operations Agency, Judiciary (AFLOA/JAJ) 

Air Force Legal Operations Agency, Commercial Law and Litigation Directorate (AFLOA/JAQ) 

Air Force Personnel Center, Office of the Staff Judge Advocate (AFPC/JA) 

24th Air Force, Office of the Staff Judge Advocate (24 AF/JA)
iii

CHAPTER ONE: 

LEGAL ISSUES SPECIFIC TO THE COMMANDER........................................................ 1

Sources of Command Authority..................................................................................... 2

Command Succession........................................................................................................ 5

Functions of the Staff Judge Advocate ........................................................................ 9

Personal Liability of Commanders and Supervisors..............................................11

Article 138 Complaints.....................................................................................................14

Special Court-Martial Convening Authority Duties...............................................19

Unlawful Command Influence ......................................................................................21

Serving as a Court Member............................................................................................24

Testifying as a Witness......................................................................................................27

CHAPTER TWO: 

QUALITY FORCE MANAGEMENT....................................................................................29

Administrative Counselings, Admonitions, and Reprimands............................30

Unfavorable Information Files.......................................................................................39

Control Rosters....................................................................................................................45

Administrative Demotions..............................................................................................48

Selective Reenlistment.....................................................................................................52

Reserve Reenlistments.....................................................................................................55

Officer and Enlisted Evaluation Systems...................................................................58

Officer Promotion Propriety Actions...........................................................................66

Enlisted Promotion Propriety Actions........................................................................69

CHAPTER THREE: 

NONJUDICIAL PUNISHMENT UNDER ARTICLE 15, UCMJ .................................73

Nonjudicial Punishment Overview and Procedures..............................................74

Supplementary Nonjudicial Punishment Actions..................................................83

Quality Force Management Effects of Nonjudicial Punishment.......................89

The Military Commander and the Law

Table of Contents
iv

CHAPTER FOUR: 

ADMINISTRATIVE SEPARATION FROM THE AIR FORCE .....................................93

Involuntary Separation of Enlisted Members: General Considerations.........94

Involuntary Separation of Enlisted Members: Reasons for Discharge............98

Dual Action Processing of Administrative and Medical Discharges..............107

Procedure to Involuntarily Separate Enlisted Members....................................109

Probation and Rehabilitation for Enlisted Members...........................................113

Officer Separations..........................................................................................................117

Administrative Separation of Reservists..................................................................123

Loss of Veterans’ Benefits...............................................................................................127

CHAPTER FIVE: 

CRIMINAL AND MILITARY JUSTICE.............................................................................129

Installation Jurisdiction..................................................................................................131

Federal Magistrate Program.........................................................................................134

Court-Martial Jurisdiction Under the UCMJ...........................................................136

A Commander’s Guide to the AFOSI .........................................................................141

Functions of the Area Defense Counsel...................................................................150

Military Magistrate Program ........................................................................................152

National Security Cases..................................................................................................154

Sexual Assault Prevention and Response................................................................157

Special Victims' Counsel Program..............................................................................168

Command Response to Sexual Assault....................................................................172

Air Force Victim Witness Assistance Program ........................................................176

Transitional Compensation for Victims of Abuse .................................................180

Media Relations in Military Justice Matters............................................................182

Arrest by Civil Authorities.............................................................................................187

Advising Suspects of Rights.........................................................................................192

Inspections and Searches.............................................................................................198

Preliminary Inquiry Into Reported Offenses...........................................................207

Military Justice Actions and the Inspector General.............................................209

Preparation, Preferral, and Processing of Charges...............................................211
v

Pretrial Restraint and Confinement...........................................................................214

Immunity.............................................................................................................................221

Pretrial Agreements........................................................................................................224

Trial Format ........................................................................................................................227

Confidentiality and Privileged Communications.................................................230

Use of Information in the Personal Information File and 

Rehabilitation Testimony at Court-Martial ......................................................235

Post-Trial Matters, Clemency Submissions, Convening Authority 

Action, and Appeals.................................................................................................237

CHAPTER SIX: 

PERSONNEL ISSUES FOR THE COMMANDER—GENERALLY..........................243

Total Force: Air Reserve Component (ARC).............................................................244

Active Guard and Reserve Curtailments..................................................................248

Reassignment to the Individual Ready Reserve....................................................250

Debarment.........................................................................................................................254

Driving Privileges.............................................................................................................257

Army and Air Force Exchange Service and Commissary Benefits..................260

Substance Abuse..............................................................................................................263

Private Organizations.....................................................................................................272

Free Speech, Demonstrations, Open Houses and Hate Groups......................276

Religious Issues in the Air Force..................................................................................279

Social Media.......................................................................................................................288

Freedom of Information Act (FOIA)...........................................................................291

Privacy Act..........................................................................................................................295

Return of Military Personnel, Employees, and Family Members From 

Overseas for Trial.......................................................................................................300

Citizenship for Military Members...............................................................................303

The Air Force Review Boards Agency........................................................................306
vi

CHAPTER SEVEN: 

PERSONNEL ISSUES FOR THE COMMANDER.........................................................313

Humanitarian Reassignments/Deferments............................................................315

The Air Force Urinalysis Program................................................................................318

Urinalysis Checklist for Unit Commanders..............................................................324

Fraternization and Unprofessional Relationships................................................327

Hazing ..................................................................................................................................330

Personal Bankruptcy.......................................................................................................332

Financial Responsibility .................................................................................................334

Bad Checks.........................................................................................................................337

Adoption Expense Reimbursement and Tax Credit.............................................339

Civilian Jury Service by Military Members..............................................................342

Human Immunodeficiency Virus (HIV).....................................................................344

Anthrax Immunizations.................................................................................................349

Commander-Directed Mental Health Evaluations...............................................352

Limited Privilege Suicide Prevention (LPSP) Program ........................................356

Health Insurance Portability and Accountability Act (HIPAA)..........................361

Personnel Reliability Program .....................................................................................367

Lautenberg Amendment ..............................................................................................371

Conscientious Objection to Military Service..........................................................374

Fitness Program................................................................................................................378

The Air Reserve Component (ARC) Fitness Program...........................................384

Unauthorized Absence ..................................................................................................388

Unauthorized Absence for an Air Reserve Component (ARC) Member.......392

Line of Duty Determinations.......................................................................................394

Disability Evaluation System........................................................................................399

Officer Grade Determinations.....................................................................................405

Tattoos/Brands, Body Piercing, and Body Alteration ..........................................407

Retaliation...........................................................................................................................410

No Contact Orders...........................................................................................................412
vii

CHAPTER EIGHT: 

PERSONNEL ISSUES FOR THE COMMANDER—FAMILY AND 

NEXT OF KIN ...........................................................................................................................417

Child Abuse, Child Neglect, and Spousal Abuse...................................................418

Child Custody and the Military ...................................................................................421

Family Member Misconduct ........................................................................................425

Removal from Base Housing........................................................................................427

Air Force Child and Youth Programs (CYP)..............................................................428

Summary Court Officers................................................................................................430

Disposal of Personal Property .....................................................................................433

CHAPTER NINE: 

LEGAL ASSISTANCE.............................................................................................................435

Overview of Legal Assistance Program....................................................................436

Notaries...............................................................................................................................440

Wills and Powers of Attorney.......................................................................................443

Tax Assistance Program .................................................................................................447

CHAPTER TEN: 

CIVIL LAW RIGHTS AND PROTECTIONS OF MILITARY PERSONNEL ..........451

Equal Opportunity and Treatment.............................................................................452

Prohibition on Sexual Harassment ............................................................................459

The Inspector General Complaints Resolution Process......................................469

Political Activities by Air Force Members................................................................476

Membership and Participation in Hate Groups....................................................480

Extremist Activities..........................................................................................................482

Servicemembers Civil Relief Act (SCRA)...................................................................486

Uniformed Services Employment and Reemployment Rights Act 

(USERRA) ......................................................................................................................490

Uniformed Services Former Spouses’ Protection Act (USFSPA).......................494

Ensuring the Fair Handling of Debt Complaints Against Service 

Members......................................................................................................................501
viii

CHAPTER ELEVEN: 

CIVIL LAW ISSUES FOR THE COMMANDER.............................................................505

National Defense Areas..................................................................................................506

Posse Comitatus...............................................................................................................511

Air Force Safety and Accident Investigations.........................................................514

Administrative Inquiries and Investigations..........................................................519

Allegations Against Senior Officials and Colonels (or Equivalents)...............522

Flying Evaluation Boards...............................................................................................525

Commercial Activities.....................................................................................................530

MWR and Nonappropriated Fund Instrumentalities...........................................536

Raffles...................................................................................................................................539

Off-Limits Establishments.............................................................................................542

Unofficial Activities/Squadron Snack Bars..............................................................544

Acceptance of Volunteer Services..............................................................................546

CHAPTER TWELVE: 

THE AIR FORCE CLAIMS PROGRAM............................................................................549

Introduction to Claims...................................................................................................550

Personal Property Claims..............................................................................................551

Disaster Claims..................................................................................................................556

Tort Claims..........................................................................................................................558

Aviation Claims.................................................................................................................564

Foreign and International Claims...............................................................................568

Property Damage Tort Claims in Favor of the United States............................573

Medical Cost Reimbursement Claims.......................................................................576

Article 139 Claims............................................................................................................579

Liability for Damage to Rental Vehicles....................................................................582

Reports of Survey (ROS).................................................................................................589

CHAPTER THIRTEEN: 

CONTRACTING ISSUES FOR THE COMMANDER...................................................595

Contract Law Foundation .............................................................................................596

Acquisition, Strategy, Planning...................................................................................598

Competition in Contracting.........................................................................................601
ix

Acquisition Process..........................................................................................................604

Bid Protests.........................................................................................................................607

Contract Administration................................................................................................609

Communications with Industry/Interfacing with Contractors........................613

Conflicts of Interest (Personal and Organizational).............................................615

Procurement Integrity Act............................................................................................617

Suspension and Debarment........................................................................................619

The Air Force Community Partnership Program (AFCP) and 

Intergovernmental Support Agreements (IGSAs).........................................621

Congress and Appropriations to the Air Force......................................................623

Foundations of Fiscal Law.............................................................................................624

Construction Funding Thresholds..............................................................................629

Continuing Resolution Authority and Funding Gaps.........................................631

Contractor Personnel Authorized to Accompany the U.S. Armed Forces...635

CHAPTER FOURTEEN: 

ETHICS ISSUES.......................................................................................................................641

Standards of Ethical Conduct......................................................................................642

Financial Disclosure Forms...........................................................................................644

Gifts to the Air Force .......................................................................................................647

Gifts of Travel .....................................................................................................................650

Gifts to Superiors..............................................................................................................652

Foreign Gifts.......................................................................................................................654

Honoraria ............................................................................................................................656

Honorary Memberships.................................................................................................658

Use of Government Owned Vehicles (GOVs)..........................................................659

Using Government Funds for Mementos and Gifts.............................................662

Use of Government Communications Systems....................................................664

Official Representation Funds (ORF) .........................................................................668

Off-Duty Employment....................................................................................................670

Key Spouse Program.......................................................................................................672

Utilization of Enlisted Aides (EAs) ..............................................................................675
x

CHAPTER FIFTEEN: 

CIVILIAN PERSONNEL AND FEDERAL LABOR LAW............................................677

Overview of the Civilian Personnel System............................................................678

Overview of Federal Labor Management Relations............................................683

Collective Bargaining......................................................................................................690

Air Force Civilian Drug Testing Program..................................................................694

Civilian Employee Workplace Searches....................................................................701

Unacceptable Performance by Civilian Employees.............................................703

Civilian Employee Discipline........................................................................................710

Civilian Employee Interrogation.................................................................................716

Equal Employment Opportunity (EEO) Complaint Process..............................719

Whistleblower Protection Act......................................................................................726

Family and Medical Leave Act (FMLA)......................................................................729

Unemployment Compensation..................................................................................732

Fair Labor Standards Act................................................................................................735

CHAPTER SIXTEEN: 

ENVIRONMENTAL LAW .....................................................................................................741

Environmental Laws: Overview...................................................................................742

Environmental Tort Claims............................................................................................745

Sovereign Immunity and Environmental Charges...............................................747

Controls on Air Force Decision-Making: NEPA.......................................................750

Environmental Management System (EMS), Environmental 

Inspections, and ESOH Council............................................................................753

Interaction with OSHA ...................................................................................................759

Environmental Enforcement Actions........................................................................765

Personal and Organizational Liability under Environmental Laws................770

Media Relations and Environmental Concerns.....................................................774

Cleanup of Contamination from Past Activities....................................................776

Natural and Cultural Resource Preservation Laws...............................................781

Encroachment Management.......................................................................................789

Encroachment and Testifying at Local Hearings...................................................793

Clean Air Act ......................................................................................................................798

Clean Water Act and Safe Drinking Water Act.......................................................803
xi

Water Rights.......................................................................................................................807

Solid and Hazardous Wastes........................................................................................810

Control of Toxic Substances.........................................................................................815

Environmental Law Overseas......................................................................................818

Utility Law...........................................................................................................................826

CHAPTER SEVENTEEN: 

INTERNATIONAL AND OPERATIONS LAW...............................................................829

Introduction to Operations Law.................................................................................830

The Law of War / the Law of Armed Conflict..........................................................832

Rules of Engagement and Rules for the Use of Force .........................................837

International Human Rights Law................................................................................845

International Law and International Agreements................................................848

Deployed Fiscal Law........................................................................................................852

Intelligence Oversight....................................................................................................856

Foreign Criminal Jurisdiction.......................................................................................864

Defense Support of Civil Authorities........................................................................869

Small Unmanned Aircraft Systems............................................................................875

CHAPTER EIGHTEEN: 

CYBER LAW..............................................................................................................................881

Cyber Law Overview.......................................................................................................882

Legal Issues in Air Force Information Network (AFIN) Operations.................883

Legal Issues in Cyberspace Operations....................................................................894

INDEX .........................................................................................................................................905

ACRONYMS..............................................................................................................................921
xii
1

Sources of Command Authority ...........................................................................................................2

Command Succession ..............................................................................................................................5

Functions of the Staff Judge Advocate...............................................................................................9

Personal Liability of Commanders and Supervisors....................................................................11

Article 138 Complaints...........................................................................................................................14

Special Court-Martial Convening Authority Duties.....................................................................19

Unlawful Command Influence.............................................................................................................21

Serving as a Court Member..................................................................................................................24

Testifying as a Witness............................................................................................................................27

CHAPTER ONE: LEGAL ISSUES SPECIFIC

1

TO THE COMMANDER
2 The Military Commander and the Law

SOURCES OF COMMAND AUTHORITY

Article II, § 2 of the United States Constitution provides the original source of command 

authority to the President as Commander-in-Chief. Military command includes two 

distinct components: (1) operational control (OPCON) and (2) administrative control 

(ADCON).

Chain of Command

- The President and Secretary of Defense (SecDef) exercise authority, direction, and 

control of the Air Force through two distinct chains of command

-- The operational branch runs from the President, through SecDef, to the commanders of combatant commands for missions and forces assigned or attached 

to their commands

-- For purposes other than operational direction of forces assigned to the combatant commands, the chain of command runs from the President to SecDef to the 

Secretary of the Air Force (SecAF), and thereafter, as prescribed by SecAF in AFPD 

51-6, Command and Administrative Proceedings and its implementing instructions. SecAF has shared administrative command and control with the combatant 

commander over Air Force forces assigned or attached to combatant commands.

- The chain of command within the Air Force runs from SecAF to the major command 

commanders to their subordinate commanders. SecAF exercises this command 

authority over Airmen through the Chief of Staff of the Air Force (CSAF).

The Concept of Command by Uniformed Military Personnel

- Concept of command carries dual functions

-- Legal authority over people, including power to discipline

-- Legal responsibility for the mission and resources

- Command devolves upon an individual, not a staff

-- A commander is an officer who occupies a position of command pursuant to 

orders of appointment or by assumption of command 

-- A commander exercises control through subordinate commanders, principal 

assistants, and other officers to whom the commander has delegated authorities
CHAPTER ONE Legal Issues Specific to the Commander 3

-- Staff, including vice and deputy commanders, have no command functions. They 

assist the commander through advising, planning, researching, and investigating. 

Subordinate officers must issue all directives in the commander’s name.

-- Commanders may delegate administrative duties or authorities to members of 

their staff and subordinate commanders as needed. However, delegating duties 

incident to the discharge of responsibilities does not relieve the commander of 

the responsibility to exercise command supervision.

-- Be mindful of the following constraints:

--- Duties specifically imposed on commanders by federal law, such as the UCMJ, 

shall not be delegated to staff officers

--- Duties that have been designated non-delegable by a higher authority shall 

not be delegated

--- A commander should exercise sound judgment and discretion in not delegating duties of clear importance

Command Authority over Active Duty Forces

- The commander’s authority over military members extends to conduct of the members whether on or off the installation. The commander exercises authority by virtue 

of his/her status as a superior commissioned officer.

- Enlisted members take an oath upon enlistment to obey the lawful orders of their 

duly appointed superiors

- Articles 89, 90, 91, and 92 of the UCMJ prohibit disrespect towards, or the failure to 

obey, superior officers

Command Authority over Reservists

- Commanders always have administrative authority to hold reservists accountable 

for misconduct occurring on or off-duty, irrespective of their military status when 

the misconduct occurred

- Commanders have UCMJ authority over reservists only when in military status
4 The Military Commander and the Law

Command Authority over Civilians

- The commander has authority over his/her civilian employees

-- The commander can give promotions and bonuses, as well as impose sanctions

-- AFI 36-series defines this relationship

- The commander has less authority over nonemployee civilians on base

-- As “mayor” of the base, the installation commander has authority to maintain 

order and discipline, and to protect federal resources

-- As a practical matter, this authority may be limited to detaining individuals for 

civilian law enforcement officials and barring them from the installation

-- The installation commander may bar an individual from the base for misconduct 

but must follow certain procedural requirements

-- The commander has no authority over civilians off base

References

U.S. Const. Art. II, § 2

UCMJ Arts. 89, 90, 91, and 92

AFPD 51-6, Command and Administrative Proceedings (13 November 2015)

AFI 51-604, Appointment to and Assumption of Command (11 February 2016), including 

administrative changes, 29 March 2016
CHAPTER ONE Legal Issues Specific to the Commander 5

COMMAND SUCCESSION

An officer is vested with command in one of two ways, either by assuming command or 

by appointment to command. Both assumption and appointment are based on seniority 

and may be either temporary or permanent.

Appointment to Command

- Appointment to command occurs by an act of the President, the Secretary of the Air 

Force, or by his/her delegate

- An officer who is assigned to an organization, present for duty, and eligible to command may be appointed to command if they are at least equal in grade to all other 

eligible officers, without regard to rank within grade

Assumption of Command

- Assumption of command is authorized under federal law and Air Force regulations 

when command passes to the senior military officer assigned to the organization 

who is present for duty and eligible to command

-- Authority to assume command is inherent in that officer’s status as the senior 

officer in both grade (captain, lieutenant colonel, colonel) and rank (seniority 

within a grade)

-- No officer may command another officer of higher grade who is present for duty 

and otherwise eligible to command

- Assumption of command may be permanent or temporary

-- A temporary assumption or appointment is used when the commander being 

replaced is only temporarily absent or disabled

-- Absence or disability for only short periods does not incapacitate the commander 

and normally does not warrant an assumption of command by another officer

-- An officer can assume command only of an organization to which that officer 

is assigned by competent authority, except that the officer serving as the Commander, Air Force Forces (COMAFFOR) for a given contingency operation exercises command authority over those Air Force members deployed in support of 

that contingency
6 The Military Commander and the Law

Method for Assumption or Appointment to Command

- Use written orders to announce and record command succession, unless precluded 

by exigencies

- Use standard memorandum format or use AF Form 35, Announcement of Appointment 

To/Assumption of Command, to document such orders. AFI 51-604, Appointment to 

and Assumption of Command, Attach. 2, sets out detailed instructions for preparing 

the AF Form 35. Consult AFI 33-328, Administrative Orders, for uniformity of order 

format and general order publishing guidance.

Resumption of Command after Temporary Absence

- No need to publish assumption of or appointment to command orders when the 

original commander resumes command after a temporary absence, so long as they 

are still equal or senior in grade to any other officer then present for duty, assigned 

to the organization, and eligible to command

- If during the permanent commander’s temporary absence, another officer senior in 

grade to him/her, who is eligible to command, is assigned or attached to the organization, then the returning commander may not resume command unless appointed 

to command

Special Rules and Limitations on Command

- No commander may appoint his own successor

- There is no title or position of “acting commander;” the term is not authorized

Limitations to Command based upon Type of Personnel

- Enlisted members cannot exercise command

- Civilians cannot exercise command

-- Civilians may hold supervisory positions, and provide supervision to military and 

civilian personnel in a unit. However, civilians cannot assume “military command” 

or exercise command over military members within the unit. Except as limited 

by law, a civilian leader of a unit is authorized to perform all functions normally 

requiring action by the respective unit commander.
CHAPTER ONE Legal Issues Specific to the Commander 7

-- Units designated to be led by civilian directors will not have commanders and 

members of the unit or subordinate units may not assume command of the unit. 

Thus, designations of individuals to lead the unit should be conducted in advance 

in the event of a director’s absence.

-- Functions which require a commander (e.g., imposition of nonjudicial punishment; initiation of administrative discharges) will be established by competent 

command authority, either by attaching military members for these limited 

purposes to a unit led by a commander, or by accomplishing these functions at 

a command level above the unit.

- Officers assigned to HQ USAF cannot assume command of personnel, unless competent authority specifically directs

- Chaplains cannot exercise command, although they do have the authority to give 

lawful orders and exercise functions of operational supervision, control, and direction

- Students cannot command an Air Force school or similar organization

- Judge Advocates may only exercise command if expressly authorized by The Judge 

Advocate General, as the senior ranking member among a group of prisoners of war, 

or under emergency field conditions

Limitations of Command Based Upon Organization

- Flying Units: May only be commanded by Line of the Air Force officers with a current aeronautical rating, as defined by AFI 11-402, Aviation and Parachutist Service, 

Aeronautical Ratings and Aviation Badges. The rated officer must hold a currently 

effective aeronautical rating or crewmember certification, and must be qualified for 

aviation service in an airframe flown by the unit to be commanded.

-- Exception 1: Officers from other military departments who have USAF-equivalent 

crewmember ratings or certifications can command consolidated flying training 

organizations in accordance with appropriate interservice agreements

-- Exception 2: Certain types of organizations, such as air base wings or groups, 

which have multiple missions that include responsibility for controlling or directing flying activities, are considered non-flying units and may be commanded by 

non-rated officers
8 The Military Commander and the Law

- Command of Active Duty Units by Reserve Officers: Only reserve component officers 

on extended active duty orders can command organizations of the regular Air Force. 

“Extended active duty” is defined as a period of 90 days or more during which the 

officer is on active duty (other than for training) orders. The COMAFFOR or delegate 

may authorize reserve component officers not on extended active duty to command 

regular Air Force units operating under the COMAFFOR’s authority, though COMAFFOR may delegate this authority no lower than the commanders of aerospace expeditionary wings for expeditionary units operating under the COMAFFOR’s authority.

- Command of Reserve Units by Regular Officers: Regular officers and reserve officers 

on extended active duty cannot command organizations of the Air Force Reserve 

(AFR) unless approved by HQ USAF/RE

- Medical/Healthcare Units: Only officers designated as a medical (including nurses), 

dental, veterinary, medical service, or biomedical sciences officer may command 

organizations and installations whose primary mission involves health care or the 

health profession

- Command of Installation: Officers quartered on an installation, but assigned to 

another organization not charged with operating that installation, cannot assume 

command of the installation by virtue of seniority

References

AFI 11-402, Aviation and Parachutist Service, Aeronautical Ratings and Aviation Badges

(13 December 2010), certified current, 5 February 2013 

AFI 33-328, Administrative Orders (16 January 2007)

AFI 51-604, Appointment to and Assumption of Command (11 February 2016), including 

administrative changes, 29 March 2016
CHAPTER ONE Legal Issues Specific to the Commander 9

FUNCTIONS OF THE STAFF JUDGE ADVOCATE

The Staff Judge Advocate delivers professional, candid, independent counsel and legal 

capabilities to the command and the warfighter. The Staff Judge Advocate is the senior 

legal advisor at all levels of command.

Definitions

- Judge Advocate: An Air Force officer designated as such by The Judge Advocate 

General of the Air Force who:

-- Has graduate of a law school accredited by the American Bar Association

-- Is a licensed attorney in at least one state or U.S. territory/commonwealth

- Staff Judge Advocate (SJA): A senior judge advocate on extended active duty normally on the installation commander’s staff

-- Serves as the legal advisor for the wing commander

-- Supervises the members of the base legal office

- Assistant Staff Judge Advocates (ASJA): Other judge advocates assigned to the SJA’s 

office. ASJAs provide the needed legal services for the proper functioning of the air 

base. In this capacity, they may perform duties such as:

-- Chief of legal assistance

-- Chief of military justice

-- Chief of civil law

- Area Defense Counsel (ADC): A judge advocate performing defense counsel duties 

at an installation. The ADC is not affiliated with the base legal office and is not rated 

by the base SJA or base commander.

- Special Victims’ Counsel (SVC): A judge advocate dedicated to exclusively providing 

special legal assistance and advice for courts-martial to victims of sexual assault
10 The Military Commander and the Law

Functional Organization of the Base Legal Office

- The legal office provides a wide range of legal services to the wing commander and 

the base at-large. The following is a general overview of the divisions within a typical 

legal office and the services they provide:

-- Military Justice Division: Advises commanders on discipline and military justice 

matters, including courts-martial and nonjudicial punishment under Article 15, 

UCMJ

-- Adverse Actions Division: Advises commanders on, and prepares documents 

for, administrative discharges. Provides legal guidance related to quality force 

management tools such as control rosters, unfavorable information files, administrative demotions, letters of reprimand, letters of admonishment, letters of 

counseling, and records of individual counseling.

-- Claims Division: Manages the processing of initial claims for and against the Air 

Force. Assists the Air Force Claims Service Center in processing household goods 

claims submitted by military members.

-- International and Operations Law Division: Advises commanders on international 

and operational law issues such as foreign criminal jurisdiction, status of forces 

agreements, rules of engagement and targeting as well providing law of armed 

conflict training and guidance

-- Civil Law Division: Administers various matters that may arise in a civil context, 

including, but not limited to contract law, labor law, environmental law, and 

general civil law, which includes issues such as private organizations, use of Air 

Force assets, personnel issues and noncriminal investigations such as reports of 

survey and line of duty determinations

-- Legal Assistance and Preventive Law Division: Legal assistance attorneys provide 

advice on a range of legal issues including, but not limited to, adoption, consumer 

law, divorce and child custody, income taxes, the Servicemembers Civil Relief Act, 

and wills and estate matters. This division also provides free notary services.

References

UCMJ Art. 15

Servicemembers Civil Relief Act, 50 U.S.C. §§ 3901-4043 

AFI 51-102, The Judge Advocate General’s Department (19 July 1994)

AFI 51-108, The Judge Advocate General’s Corps Structure, Deployment, and Operational Support

(9 October 2014)
CHAPTER ONE Legal Issues Specific to the Commander 11

PERSONAL LIABILITY OF COMMANDERS 

AND SUPERVISORS

Federal employees (including military personnel) are generally entitled to Department 

of Justice representation if lawsuits are brought against them for acts they during their 

employment, if those acts do not violate federal statutes. Military personnel may only 

be held personally liable for damages in a civil lawsuit if the underlying incident was 

not associated with normal duty, or “outside the scope” of that individual’s employment.

Liability for Constitutional Torts

- A constitutional tort is a violation of another’s constitutional rights by a government 

employee. Constitutional tort actions are brought under 42 U.S.C. § 1983 against 

government employees seeking damages for the violation of a federal constitutional 

right.

- General Rule—Full Immunity: Personnel are generally not personally liable for alleged 

constitutional torts if committed within the scope of that person’s employment with 

the federal government

-- The administrative remedies given an aggrieved employee by the Civil Service 

Reform Act are construed by federal courts as “special factors” that protect federal 

supervisors from liability

-- The relationship between military personnel, including civilian supervisors, was 

a “special factor” as long as the act had been “incident to service” at the time of 

the alleged wrong, based upon the circumstances at that time

-- There need not be a superior/subordinate relationship for this immunity to apply, 

e.g., a civilian employee allegedly injuring an enlisted member

- Qualified Immunity: If there is no “special factor” in a case, the federal official is only 

entitled to qualified immunity. He is immune so long as his acts did not violate clearly 

established constitutional guarantees, e.g., those of which a “reasonable person” 

would have been aware.

- No Immunity: Misconduct by personnel “outside the scope” of military employment 

may subject the perpetrator to individual financial liability in the event of a lawsuit. 

This may include, for example, federal crimes and sexual harassment.
12 The Military Commander and the Law

Liability for Common Law Torts

- The Federal Employees Liability Reform and Tort Compensation Act of 1988 (the 

“Westfall Act”) now gives federal employees absolute immunity from liability for state 

common law torts including negligence, libel, slander, assault, battery, trespass, as 

long as they were in the scope of employment at the time of the alleged incident

- The Department of Justice must certify that the employee was acting “in the scope” at 

the time of the incident, and that certification can be reviewed by the court hearing 

the lawsuit

Environmental Torts

- The major environmental statutes (Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act) provide immunity for federal employees acting in scope 

unless those statutes provide for criminal penalties

- Also, if a defendant is being tried for violating federal (not state) criminal law, the 

Department of Justice will generally decline representation

Representation of Federal Employees in Civil Lawsuits

- Should you or one of your personnel be served with any summons or complaint, 

immediately contact your servicing staff judge advocate

-- Department of Justice representation is available in almost all cases if the 

employee was acting “within the scope of employment” and if the action was 

not a violation of a federal criminal statute

-- Time standards for requesting representation and answering the complaint are 

extremely critical, so do not waste any time

- Private insurance at your own expense may be available to protect you against civil 

(not criminal) liability
CHAPTER ONE Legal Issues Specific to the Commander 13

References

The Civil Service Reform Act, 5 U.S.C. § 7101 

Federal Employees Liability Reform and Tort Compensation Act, 28 U.S.C. § 267 

The Federal Employees Liability Reform and Tort Compensation Act, 28 U.S.C. § 2679 

Clean Water Act, 33 U.S.C. §§ 1251-1387 

42 U.S.C. § 1983 

Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.

Clean Air Act, 42 U.S.C. §§ 7401 et seq.

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)

Chappell v. Wallace, 462 U.S. 296 (1983)

Bush v. Lucas, 462 U.S. 367 (1983)

United States v. Stanley, 483 U.S. 669 (1987)

United States v. Carr, 880 F.2d 1550 (2d Cir. 1989)

Otto v. Heckler, 781 F.2d 754 (9th Cir. 1986), modified, 802 F.2d 337 (9th Cir. 1986)

Meyer v. United States Coast Guard, 644 F. Supp. 221 (E.D.N.C. 1986)

28 C.F.R. Part 50, Department of Justice Policy
14 The Military Commander and the Law

ARTICLE 138 COMPLAINTS

Article 138 of the UCMJ gives any member of the Armed Forces who believes they have 

been wronged by their commanding officer the right to complain and seek redress. This 

right extends to regular Air Force (RegAF), Air National Guard (ANG) in Title 10 active 

duty status, and Air Force Reserve (AFR) while in federal service, whether on active duty 

orders, annual training, or inactive duty for training (IDT).

Scope of Article 138 Complaints

- Matters within the scope of Article 138 include discretionary acts or omissions by a 

commander that adversely affect the member personally and allegedly are:

-- A violation of law or regulation;

-- Beyond the legitimate authority of that commander;

-- Arbitrary, capricious, or an abuse of discretion; or

-- Clearly unfair, or unjust (e.g., selective application of administrative 

standards/actions)

- Matters beyond the scope of Article 138:

-- Acts or omissions not initiated, carried out, or approved by the member’s 

commander

-- Submissions seeking reversal or modification of non-discretionary command 

actions (e.g., mandatory Unfavorable Information File (UIF))

-- Complaints challenging a commander’s decision not to provide redress or complaints against the general court-martial convening authority (GCMCA) related 

to the resolution of an Article 138 complaint (allegations that the commander 

or GCMCA failed to act or forward the complaint, however, are within the scope 

of Article 138)

-- Submissions on behalf of another person

-- Complaints seeking disciplinary action against another
CHAPTER ONE Legal Issues Specific to the Commander 15

- Matters within the scope of Article 138, but more appropriately addressed by alternative review processes:

-- Submissions requesting relief which the commander and the GCMCA lack authority to grant, such as an action requiring approval by the Secretary of the Air Force 

(SecAF);

-- Disciplinary action under the UCMJ, including nonjudicial punishment under 

Article 15 (deferral of post-trial confinement, however, is within the scope of 

Article 138);

-- Challenges to any evaluation report which affects a member’s military career (e.g., 

Officer Performance Reports, Enlisted Performance Reports, Promotion Recommendation Forms, etc.,) addressed by the Evaluation Reports and Appeals Board 

(ERAB);

-- Relief from an assessment for pecuniary liability (Secretary of the Air Force Remissions Board (SAFRB));

-- A suspension from flying status (Flying Evaluation Board (FEB))

Article 138 Procedures

- Member Filing Deadline: The member must the complaint within 90 days of the 

alleged wrong; the commander may waive the time requirement for good cause

- Burden of Persuasion: The member has the responsibility to prove one of the factors 

under Article 138. The commander is presumed to have acted properly.

- Staff Judge Advocate (SJA) Consultation: The commander must consult the SJA before 

taking action

- Evidence: The commander may consider evidence in addition to matters attached 

to the initial application

- Commander Initial Decision Deadline: No later than 30 days after receipt of the initial 

application for redress, the commander must notify the member in writing that:

-- A decision regarding the requested relief has been deferred to gather additional 

facts (such a notice shall be sent every 30 days until the fact gathering is complete);

-- The requested relief is granted; or
16 The Military Commander and the Law

-- The request is wholly or partially denied, because:

--- The requested relief is not warranted;

--- The submission is outside the scope of Article 138, UCMJ;

--- The submission is untimely; or

--- There is a more appropriate channel for reviewing the complaint

- If the commander denies the requested relief because there is a more appropriate 

channel for review or the commander lacked authority, the commander must:

-- Forward the complaint and evidence to the appropriate processing office; or

-- Return the submission to the member and direct the member to the appropriate 

office;

-- If appropriate, inform the member of their right to file an application with the 

Air Force Board for Correction of Military Records

- GCMCA Review—denied complaints: If the commander wholly or partially denies 

the initial application for redress, the member may request review by the GCMCA 

within 30 days

- GCMCA Review—no commander response to complaint: If the member has received 

no response to the application for redress within 30 days from the date of submission, 

the member may request GCMCA review within 60 days from the date of the initial 

application

- GCMCA Review—delayed action on complaints: If the commander notified the 

member the application was being deferred pending additional fact gathering, the 

member may request GCMCA review, but must wait until 90 days after the initial 

application for redress
CHAPTER ONE Legal Issues Specific to the Commander 17

GCMCA’s Responsibilities

- May investigate and/or document findings, but may not delegate the authority to act

- Will forward complaints to the subordinate commander who allegedly committed 

the wrong if the subordinate commander was not given the opportunity to provide 

redress. Any new allegations added by a member when seeking GCMCA review will 

be forwarded to subordinate commanders for initial review.

- Must obtain a written legal review from the servicing SJA before responding. The SJA 

legal review is privileged attorney work product and not releasable.

- Not later than 60 days after receipt of the formal complaint, the GCMCA must notify 

the member that:

-- A decision regarding the requested relief has been deferred for the completion 

of a proceeding or additional inquiry;

-- The requested relief is granted;

-- The requested relief is denied as outside the scope of Article 138, UCMJ;

-- The requested relief is denied as untimely; or

-- The requested relief is denied as there is a more appropriate channel for review

- If relief is denied because there is a more appropriate channel for review or the GCMCA 

lacks the authority to grant the requested relief, the GCMCA will:

-- Forward the complaint and evidence to the appropriate processing office; or

-- Return the submission to the member and direct the member to the appropriate 

office; and

-- If appropriate, inform the member of their right to file an application with the 

Air Force Board for Correction of Military Records

-- If the GCMCA believes the requested relief should be granted and the authority to grant the relief requested resides with another GCMCA, MAJCOM, or the 

Secretary of the Air Force, the GCMCA should include the recommendation in 

the final action
18 The Military Commander and the Law

- After taking final action and notifying the member, the GCMCA will send a complete 

copy of the file to AF/JAA. Include the member’s personal mailing address.

Secretary of the Air Force (SecAF) Review

- AF/JAA exercises SecAF authority for final review of formal Art. 138 complaints

- AF/JAA provides the member with written notification of the completion of the review 

process and any further action taken on the complaint (and, if applicable, the reasons 

for that action)

- AF/JAA will provide the GCMCA and servicing SJA a copy of the final decision

References

UCMJ Art. 138

AFI 51-904, Complaints of Wrongs Under Article 138, Uniform Code of Military Justice 

(28 July 2015)

AFPD 51-9, Civil Law for Individuals (30 July 2015)
CHAPTER ONE Legal Issues Specific to the Commander 19

SPECIAL COURT-MARTIAL CONVENING 

AUTHORITY DUTIES

The special court-martial convening authority (SPCMCA) is a statutory position under the 

UCMJ which is typically held by the wing commander. SPCMCA duties can be divided 

into two categories: (1) military justice and (2) administrative action.

Military Justice Duties

- Search and Seizure of Evidence: Appoints officers to serve as military magistrates to 

authorize apprehensions, and searches and seizures of potential evidence for possible 

disciplinary matters

- Pretrial Confinement: Appoints pretrial confinement reviewing officers (PCRO), 

who should be officers with sound, impartial judgment to hold hearings and make 

determinations of whether an accused should be continued in pretrial confinement 

awaiting trial

- Disposition of Court-Martial Charges:

-- Serves as the “Sexual Assault Initial Disposition Authority” for all unrestricted 

reports of rape, sexual assault, forcible sodomy, and attempts to commit any of 

those offenses by members of their command 

-- Refers charges and specifications to special or summary courts-martial

-- Appoints Article 32, UCMJ, preliminary hearing officers (PHO) (if the SPCMA 

believes a general court-martial (GCM) may be the appropriate forum for the 

charge) and forwards the charges and specifications, to the General CourtMartial Convening Authority (GCMCA) for disposition 

- Special and Summary Court-Martial Duties:

-- Details court-martial panel members

-- Approves pretrial agreements (PTAs) for an accused

-- Takes action on findings and sentences
20 The Military Commander and the Law

Administrative Action Duties

- Review of Requests for Administrative Discharge In Lieu of Court-Martial: Disapproves 

or recommends approval of requests for discharge in lieu of court-martial

-- If the SPCMCA desires the request for discharge in a special court-martial 

approved, he/she must forward it to the GCMCA, with a recommendation for 

approval and appropriate characterization of discharge

-- If the Article 32 report has been forwarded to the GCMCA, the SPCMCA forwards 

the request for discharge to the GCMCA, with a recommendation for action on 

request

-- Exception: If the SPCMCA has ordered an Article 32 hearing, but the Article 32 

report has not been forwarded to the GCMCA, the SPCMCA may disapprove the 

request

- Discharge Boards: 

-- Convenes discharge boards, depending upon the status of the respondent and 

acts on the findings and recommendations of the board 

--- Note that only general officers may convene commissioned officer discharge 

boards

-- Acts as separation authority for enlisted discharges depending upon the status 

of the respondent, the basis for the discharge, and/or the findings and recommendations of the board

--- Note that the Secretary of the Air Force serves as the separation authority 

for commissioned officers

References

Manual for Courts-Martial, United States, Part II (2012)

Memorandum, Withholding Initial Disposition Authority Under the Uniform Code of Military Justice 

in Certain Sexual Assault Cases (20 Apr 2012)

AFI 36-3208, Administrative Separation of Airmen (9 July 2004), incorporating through Change 7, 

2 July 2013, including AFI36-3208_AFGM2016-01, 24 June 2016

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016
CHAPTER ONE Legal Issues Specific to the Commander 21

UNLAWFUL COMMAND INFLUENCE

As the military courts have often emphasized, unlawful command influence (UCI) is the 

mortal enemy of military justice. There are two types of unlawful command influence 

recognized by military courts: (1) actual UCI (i.e., actual impact on a court-martial undermining the fairness of the proceedings); (2) apparent UCI (i.e., no actual impact to fairness 

in the proceedings, rather the appearance of unfairness when observed by an objective 

member of the public). The courts have been equally quick, however, to distinguish 

proper command influence from UCI. The key is to understand what constitutes proper 

involvement by the commander, and what crosses the line into UCI.

Lawful Command Involvement in Military Justice

- Superior commanders are NOT prohibited from establishing and communicating 

policies necessary to maintain good order and discipline. They are also free to pass 

on their experience and advice regarding disciplinary matters without impacting the 

discretion of their subordinates in the matter. Examples of proper or lawful command 

involvement are:

-- Withholding a subordinate commander’s authority to act in an individual case 

or types of cases and impose punishment oneself

-- Requesting a subordinate to reconsider his/her action in light of new evidence

-- Consulting with subordinates on judicial decisions at the subordinate’s request; 

how- ever, the subordinate alone must decide what action to take

-- “Tough talk” policy letters, talks and briefings on issues of concern are permissible so long as they do not show an overly determined attitude or attempt to 

influence the finding and sentence in a particular case

-- Focusing on problem areas is permissible, such as: characterizing illegal drug 

use as a threat to combat readiness or referring to “ferreting out” illegal drug 

dealers as a legitimate command concern

Unlawful Command Influence

- Generally: No person subject to the UCMJ may attempt to coerce or, by any unauthorized means, influence the action of a court-martial, as it impacts an accused’s right 

to a fair trial
22 The Military Commander and the Law

- Actual UCI: The actions of someone acting with the “mantle of command” affecting 

the disposition of a case, and prejudicing the accused

- Apparent UCI: When the actions of someone acting the “mantle of command” would 

create in the mind of an objective observer, fully informed of all the facts and circumstances, a significant doubt about the fairness of the proceeding

- Superior commanders must not make comments that would imply they expect a 

particular result in a given case or type of cases, such as:

-- Calls for Punitive Discharge in an Entire Category of Cases: A commander states at 

an officers’ call that all drug users must be removed from the Air Force. Potential 

court members for an upcoming court involving drugs are present. The inference 

may be that the commander expects the court to impose a punitive discharge.

-- Public Criticism of “Low” Court-Martial Punishments: A commander makes comments on his displeasure at the light sentences adjudged by previous courts. 

The concern is future panel members may adjudge a harsher sentence than they 

might otherwise in order to please the commander.

-- DiscouragingWitness Testimony on Behalf of an Accused: A commander expresses 

his concern about court-martial cases in which subordinate commanders preferred charges, recommended a court, and then testified during sentencing on 

behalf of the accused. The suggestion was that they refrain from testifying for the 

accused in upcoming courts. Any attempt to discourage a witness from testifying, 

even unintentional actions, is improper.

-- Public CommentsOpining on the Accused’sGuilt Prior to Trial: A commander, speaking informally to a group of officers, jokingly says he does not care how long a 

particular court takes, as long as the members “hang the SOB.” The impression 

is that he believes the accused to be guilty and expects the members to agree.

- Each commander in the chain must remain free to exercise his/her own discretion to 

impose discipline without inappropriate interference from a superior commander

-- The key consideration is whether a commander is taking disciplinary action 

based upon that commander’s own personal belief that the disciplinary action 

is appropriate or whether the commander is merely acquiescing to direction 

from a superior to impose the particular discipline
CHAPTER ONE Legal Issues Specific to the Commander 23

-- A superior commander must not direct a subordinate commander to impose a 

particular punishment or take a particular action. To do so would constitute UCI 

because the decision was not that of the commander taking action or imposing 

punishment, but rather that of the superior commander.

References

UCMJ Art. 38

Rule for Courts-Martial 104 (2015)

Rule for Courts-Martial 306 (2015)

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016
24 The Military Commander and the Law

SERVING AS A COURT MEMBER

At some time in your military career you may be detailed to sit as a member of a courtmartial. Court members serve essentially the same function in a military court-martial 

as jurors serve in civilian courts. When serving as a court-martial member, that service 

becomes the primary duty of that Airman until the close of the trial.

Selection

- When convening a court-martial, the convening authority personally selects members who are “best qualified” for this duty. Pursuant to Article 25(d)(2) of the UCMJ 

factors used in court member selection include: age, education, training, experience, 

length of service, and judicial temperament.

- Prior to sitting as a member in a court-martial, court members are usually asked 

to complete a court member data sheet with personal and professional information. This data sheet provides counsel for both sides information about a member’s 

background and assists them in determining whether there is reason to excuse that 

particular member from sitting on the court.

- Once detailed to sit on a court-martial, a member must avoid allowing others to speak 

about upcoming cases in their presence to maintain impartiality

Excusal

- Excusal Requests Prior to Trial: Requests to be excused from court member duty 

should be based on good cause

-- Requests should be written and forwarded to the convening authority through 

his/her staff judge advocate (SJA)

-- Members detailed to a court-martial should not depart the local area on leave or 

on temporary duty assignment (TDY) without coordination with the SJA unless 

they have been properly relieved from duty

- Excusal Requests During Trial: After the court-martial is assembled, the convening 

authority may only excuse court members for good cause
CHAPTER ONE Legal Issues Specific to the Commander 25

Voir Dire

- Trial and defense counsel, as well as the military judge, are entitled to ask court members questions at trial to ensure impartiality. This questioning is referred to as “voir dire,” 

and occurs prior to the court members hearing any evidence in the case.

- Both the trial and defense counsel can challenge any member for cause. The military 

judge rules on challenges for cause. If the military judge grants a challenge to a courtmartial panel member, that member is released from the court-martial and may return 

to their normal duties.

Duties at Trial—Findings

- The “findings” phase of the court-martial is the guilt/innocence phase of the 

court-martial

- If the accused pleads “not guilty,” the court members receive evidence, arguments 

from counsel, and instructions on the law from the military judge in order to determine whether the accused is guilty or not guilty

- Court members are given an opportunity to question witnesses after the counsel 

have completed their examinations. Both counsel will review any question and may 

object to it. The military judge will rule on the objection.

- The members must be convinced beyond a reasonable doubt that the evidence 

presented during the trial shows the accused committed the offense to find the 

accused “guilty.” The decision of the court is called the “finding.”

- The senior ranking court member is called the “president.” It is the president’s job to 

announce the findings of the court-martial panel to the accused and counsel and 

to check the vote count and announce the results to the other members. The junior 

ranking court member collects and counts the votes during deliberations.

- Each member has an equal voice and vote in discussing and deciding a case. The 

influence of superiority in rank must not be employed in any manner in an attempt 

to control the independence of the members in the exercise of their own personal 

judgment. Service as a court member, is not a rating factor to be considered on any 

member’s performance report.
26 The Military Commander and the Law

- Each member has a right to be free from harassment or ridicule based upon that 

member’s participation as a court member. Court member deliberations are conducted in private, and each member takes an oath not to disclose any member’s 

opinion or vote. Furthermore, no member may be compelled to answer questions 

about the deliberations unless lawfully ordered to do so by a military judge.

Duties at Trial—Sentencing

- If the accused is found “guilty,” the court members will hear evidence and listen to 

arguments from counsel recommending a sentence, and receive instructions from 

the military judge on sentencing procedures. Members then deliberate and decide 

on an appropriate sentence. The president announces the sentence in open court in 

the presence of accused and counsel.

- If the accused pleads “guilty,” but decides to be sentenced by members rather than 

just the judge alone, the same sentencing procedures apply as when the accused is 

found “guilty” by members

References

UCMJ Arts. 25 and 39

Rules for Courts-Martial 501-505, 804-807, 813, 901, 911-1007 (2015)

U.S. Dep’t of Army Pam. 27-9, Legal Services: Military Judges’ Benchbook (2015)
CHAPTER ONE Legal Issues Specific to the Commander 27

TESTIFYING AS A WITNESS

You or one of your subordinates may be called to testify at a court-martial or other administrative hearing. Under the UCMJ both the prosecution and defense are entitled to equal 

access to all witnesses and evidence. No Airman should attempt to influence the testimony 

of a court-martial witness.

- Either the trial counsel or defense counsel may call witnesses during the findings 

portion of the trial to provide evidence of the offense or for the defense to the charge

- Either counsel may also call witnesses during the sentencing portion of the trial. A 

sentencing witness may be called to testify about a variety of things, such as the 

character of the accused, the impact of the offenses on the unit, or relating an opinion 

about the accused’s rehabilitative potential.

-- You will not be allowed to testify about your opinion as to an appropriate sentence, including whether or not the accused should be punitively discharged 

from military service

-- When testifying about the accused’s potential for rehabilitation, the witness must 

have knowledge of the accused as a “whole person”

- The attorney calling you as a witness should, before trial, discuss the questions he or 

she will ask and questions the opposing counsel will likely ask on cross-examination. 

If you are going to be a witness, you should reserve the time necessary to permit 

the trial or defense counsel to ensure you are properly prepared to take the stand. 

Furthermore, the opposing counsel should also have the opportunity to interview 

you prior to testifying.

- Immediately report any attempts to influence your testimony to the staff judge 

advocate

References

UCMJ Art. 46

Rule for Courts-Martial 1001 (2015)
28 The Military Commander and the Law
29

Administrative Counselings, Admonitions, and Reprimands..................................................30

Unfavorable Information Files.............................................................................................................39

Control Rosters..........................................................................................................................................45

Administrative Demotions....................................................................................................................48

Selective Reenlistment...........................................................................................................................52

Reserve Reenlistments...........................................................................................................................55

Officer and Enlisted Evaluation Systems..........................................................................................58

Officer Promotion Propriety Actions.................................................................................................66

Enlisted Promotion Propriety Actions..............................................................................................69

CHAPTER TWO: QUALITY FORCE

2

MANAGEMENT
30 The Military Commander and the Law

ADMINISTRATIVE COUNSELINGS, ADMONITIONS, 

AND REPRIMANDS

Counselings, admonitions, and reprimands are quality force management tools available 

to supervisors, superiors, and commanders. These management tools are designed to 

improve, correct, and instruct those who depart from standards of performance, conduct, 

bearing, and integrity and whose actions degrade the individual and unit’s mission. These 

tools are intended to correct rather than punish behavior. When properly used, they help 

maintain established Air Force standards and enhance mission accomplishment.

What Action is Appropriate

- The Basics: AFI 36-2907, Unfavorable Information File (UIF) Program, Chapter 4, contains guidance on administrative letters of counseling, admonitions, and reprimands. 

The counseling is the lowest level of administrative action. An admonition is more 

severe than a counseling. A reprimand is more severe than an admonition and carries 

a stronger degree of official censure.

- Primary Considerations: The decision to formally counsel, admonish, or reprimand 

should be based primarily on two factors:

-- Nature of the incident: The seriousness of the member’s departure from Air 

Force standards should be considered before deciding what type of action to 

take. Counselings, admonitions, and reprimands may be administered for ANY

departure from Air Force standards. Unlike nonjudicial punishment under Article 

15 of the UCMJ, they are NOT limited to offenses punishable by the UCMJ.

-- Previous disciplinary record of the member: Counselings, admonitions, and reprimands should be used as part of a graduated pattern of discipline in response 

to repeated departures from standards

Issuing the Counseling, Admonition, or Reprimand

- Who May Issue: Commanders, supervisors, and other persons in authority

- Form of the Action: May be either verbal or written. However, actions should usually 

be in writing to document the deviation as well as reinforce the importance of correcting the behavior. A verbal counseling may be recorded on an AF IMT 174, Record 

of Individual Counseling (RIC).
CHAPTER TWO Quality Force Management 31

- AFI 36-2907: Letters of counseling (LOCs), letters of admonition (LOAs), and letters 

of reprimand (LORs) must comply with AFI 36-2907

-- A sample format for an LOC, LOA, or LOR along with its endorsements follows 

this section as an attachment 

-- Failure to follow the requirements for drafting and maintaining these documents could limit the use of the documents in a subsequent proceeding such as 

a court-martial or discharge proceeding

-- Additionally, failure to follow the requirements may undermine the Airman’s 

confidence in the fairness and integrity of the administrative process

Procedures

- Standard of Proof: Investigate to determine the infraction occurred. The standard of 

proof is “preponderance of the evidence” i.e., more likely than not that the alleged 

misconduct occurred. No formal rules of evidence apply.

- Draft the Letter: Prepare the letter according to the requirements of AFI 36-2907 (set 

forth below). LOCs, LOAs, and LORs should be typed on official letterhead. The letter 

must state the following:

-- What the member did or failed to do, citing specific incidents and their dates. 

Since an LOC, LOA, or LOR is not limited to offenses punishable by the UCMJ, 

it is not always possible to cite specific violations of the UCMJ; however, if the 

member has violated a UCMJ article that violation should normally be included 

in the language of the letter.

-- What improvement is expected

-- That further deviation may result in more severe action

-- That the member has 3 duty days to respond and provide rebuttal matters (45 

calendar days for non-extended active duty (EAD) reserve or Air National Guard 

(ANG) members)

-- That all supporting documents become part of the record

-- That the person who initiates the LOC, LOA, or LOR has 3 duty days to advise the 

individual of their decision regarding any comments submitted by the individual 

(45 calendar days for non-EAD Reserve or ANG members)
32 The Military Commander and the Law

- Notify the Individual: 

-- Read the individual the letter

-- Have the member immediately acknowledge receipt on the original letter by 

filling in the date received and signing. If the member refuses to acknowledge 

receipt, the person who issued the letter should write on the original letter 

beneath the member’s signature block in the acknowledgement section, 

“<<Rank and Name of Member>> refused to acknowledge receipt.”

-- Give the member a copy of the letter

- Time to Respond: Provide the member with 3 full duty days for active duty members, 

45 days for non-EAD Air Force Reseve (AFR) and ANG members. During this time, 

the member may wish to consult with an Area Defense Counsel. The member may 

respond prior to the expiration of the time to respond; however, the issuer of the 

letter should not pressure the member into responding prior to expiration of the 

allowed time.

-- If the member refuses to complete or sign the indorsement, the person who 

issued the letter should write on the original letter beneath the member’s signature block, “<<Rank and Name of Member>> failed to provide matters in 

response to this letter within 3 duty days (45 days for reserve/ANG members) 

and refused to complete the 1st Ind,” along with the issuer’s signature block, 

signature, and the date.

- Response: If the member submits a response, advise the member of the final decision 

within 3 duty days of the submission of the response

-- Issuer may withdraw the action or leave the action as written. Withdrawing the 

action does not bar the issuer from taking alternate appropriate action e.g., withdrawing an LOR and initiating an LOA.

-- If using an indorsement similar to that in the attachment, the issuer of the letter should fill in the date of the indorsement, strike through the inapplicable 

language in parentheses, and sign the indorsement

-- Attach any matters the member submits in response to the original letter

- Inform Leadership: Issuer may, and generally should, inform the member’s chain of 

command of the action. If appropriate or requested, send the letter with all indorsements, and any documents submitted by the member to the member’s superiors or 
CHAPTER TWO Quality Force Management 33

commander for information, action, or approval for entry in the member’s Personnel 

Information File (PIF), UIF, or both.

- Privacy Act Requirements: Written counselings, admonitions, and reprimands are 

subject to the rules of access, protection, and disclosure outlined in AFI 33-332, Air 

Force Privacy and Civil Liberties Program. Therefore, all LOCs, LOAs, and LORs must 

contain a paragraph outlining the applicability of the Privacy Act to the document. 

Copies held by supervisors, commanders, and those filed in a member’s UIF or PIF 

are subject to the same Privacy Act rules.

Record Keeping

- LOCs, LOAs, and LORs will often be placed in a PIF or UIF. The disposition rules follow:

Rules for LOC, LOA, and LOR Disposition

Letters Issued

to Enlisted

Type of

Letter Disposition

LOC May be placed in PIF or UIF

LOA May be placed in PIF or UIF

LOR May be placed in PIF or UIF

Letters Issued 

to Officers

Type of 

Letter Disposition

LOC May be placed in UIF and must be placed in PIF if not 

placed in UIF

LOA May be placed in UIF and must be placed in PIF if not 

placed in UIF

LOR Must be placed in UIF. Initiate Officer Selection Record 

(OSR) determination.

- Commanders who wish to establish a UIF on optional letters (LOCs, LOAs, and LORs 

for enlisted members and LOCs and LOAs for officers) must notify the member on 

an AF IMT 1058, Unfavorable Information File Action before establishing a UIF. LORs 

issued to officers must be filed in a UIF via AF IMT 1058, but the commander does not 
34 The Military Commander and the Law

need to submit the AF IMT 1058 to the officer because the officer is provided with an 

opportunity to refute the LOR when it is initially presented.

- Officers who receive an LOR will be subject to an Officer Selection Record (OSR) determination by the officer’s senior rater. Procedures for the determination may be found 

in AFI 36-2608, Military Personnel Records System, para. 8.3.

Reserve/Guard Members

- Commanders, supervisors, and other persons in authority can issue administrative 

counselings, admonitions, and reprimands to Reserve and ANG members who commit an offense while in civilian (non-Title 10) status. Additionally, AFI 36-2907 applies 

to ANG personnel on Title 32 status except when otherwise directed by the state.

- When issuing an LOC, LOA, or LOR to a Reserve or ANG member, follow the procedures 

listed above with the following exceptions:

-- If the member has departed the duty area, the commander may send the letter 

via certified mail to the member’s address or best available address, and the 

individual will be presumed to be in receipt of this official correspondence

-- Non-EAD Reservists and ANG personnel have 45 calendar days from the date of 

receipt of the certified letter to acknowledge the notification, intended actions, 

and provide pertinent information before the commander makes a final decision. In calculating the time to respond, the date of receipt is not counted. If the 

member mails the acknowledgment, the date of the postmark on the envelope 

will serve as the date of acknowledgment.

-- The initiator has 45 calendar days from the receipt of the certified letter or personal 

delivery to advise the member of his/her final decision regarding any comments 

submitted by the member
CHAPTER TWO Quality Force Management 35

References

UCMJ Art. 15 

AFI 33-332, Air Force Privacy and Civil Liberties Program (12 January 2015)

AFI 36-2608, Military Personnel Records System (26 October 2015)

AFI 36-2907, Unfavorable Information File (UIF) Program (26 November 2014)

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016

AF IMT 174, Record of Individual Counseling

AF IMT 1058, Unfavorable Information File Action

Attachment

Sample Letter of Counseling/Admonishment/Reprimand
36 The Military Commander and the Law

Suggested Format for Letters of Counseling, Admonitions, and Reprimands

[1.75 inches from top of page; flush with the right margin] 6 May 2014

MEMORANDUM FOR RANK FIRST M. LAST

FROM: ORG/SYMBOL [Issuer’s organization and office symbol]

SUBJECT: Letter of [Counseling (LOC)] [Admonition (LOA)] [Reprimand (LOR)]

1. Investigation has disclosed [briefly describe what the member did and/or failed to 

do, citing the specific incident(s) and date(s)]. [For this example, the LOR is being 

issued on 6 May 2014. Thus, the 1st Indorsement (1st Ind) is dated the same day; the 

2d Ind is dated three (3) duty days later; and the 3d Ind is dated three (3) duty days 

after the 2d Ind. Be aware that the first indorsement that occurs on any page other 

than the letterhead page must include the citation line for the letter. In this example, 

the 1st Ind is the first indorsement to occur on a new page. The citation line for the 

indorsement memorandum consists of the indorsement number followed by the 

ORG/SMBOL, SUBJECT, and date of the original memorandum. The citation line ends 

with the indorsement date: for disciplinary actions this should be the same as the 

LOR date.]

2. You are hereby [counseled.] [admonished.] [reprimanded!] [Briefly discuss the impact 

of what the member did or failed to do and what improvement is expected.] Your 

conduct is unacceptable and any future misconduct may result in more severe action.

3. The following information required by the Privacy Act is provided for your information. AUTHORITY: 10 U.S.C. § 8013. PURPOSE: To obtain any comments or documents 

you desire to submit (on a voluntary basis) for consideration concerning this action. 

ROUTINE USES: Provides you an opportunity to submit comments or documents for 

consideration. If provided, the comments and documents you submit become a part 

of the action. DISCLOSURE: Your written acknowledgment of receipt and signature 

are mandatory. Any other comments or documents you provide are voluntary.

4. [For active duty or Reserve members on EAD:] You will acknowledge receipt of this letter immediately by signing the acknowledgement below. Within three (3) duty days 

from the day you received this letter, you will sign the 1st Ind below. Any comments 

or documents you wish to be considered concerning this letter must be submitted at 

that time. You will be notified of my final decision regarding any comments submitted 

by you within three (3) duty days.
CHAPTER TWO Quality Force Management 37

[For non-EAD Reserve members:] You have 45 calendar days from the day you received 

this letter to acknowledge the notification and provide any comments or documents you 

wish for me to consider. You will be notified of my final decision regarding any comments 

submitted by you within 45 calendar days.

HOLDEN T. LINE, Capt, USAF

[Issuer’s Duty Title, Organization]

1st Ind to ORG/SYMBOL, 6 May 2014, Letter of Reprimand (LOR) 6 May 2014 

ORG/SYMBOL [Organization and office symbol for person signing 1st Ind]

MEMORANDUM FOR ORG/SYMBOL [Issuer’s organization and office symbol]

I acknowledge receipt and understanding of this letter on _____________ at____ hours. 

I understand that I have three (3) duty days form the date I received this letter to provide 

a response and that I must include in my response any comments or documents I wish 

to be considered concerning this letter.

INHOT W. WOTTER, Rank, USAF

2nd Ind, Rank Inhot W. Wotter 9 May 2014

MEMORANDUM FOR ORG/SYMBOL [Issuer’s organization and office symbol]

I have reviewed the allegations contained in this letter. (I am submitting the attached 

documents in response) (I hereby waive my right to respond).

INHOT W. WOTTER, Rank, USAF
38 The Military Commander and the Law

3d Ind, ORG/SYMBOL [Issuer’s organization and office symbol] 12 May 2014

MEMORANDUM FOR RANK INHOT W. WOTTER

I have considered the response you submitted on_____________________. (The letter 

of reprimand remains in effect) (I have decided to withdraw the letter of reprimand).

HOLDEN T. LINE, Capt, USAF

[Issuer’s Duty Title, Organization]
CHAPTER TWO Quality Force Management 39

UNFAVORABLE INFORMATION FILES

The unfavorable information file (UIF) provides commanders with an official and single 

means of filing derogatory data concerning an Air Force member’s personal conduct 

and duty performance. With some exceptions, the commander has discretion as to what 

should be placed in a UIF and what should be removed.

About the UIF

- The UIF is an official record of unfavorable information about an individual. It documents administrative, non-judicial, or judicial censures of the member’s performance, 

responsibility, and behavior.

- The UIF is maintained by the base UIF monitor appointed by the Force Support Squadron superintendent/director

- Attachments 1 and 2, below, summarize when the establishment of a UIF is optional 

and when it is mandatory

Establishing a UIF

- Authority to Establish UIFs: Must be established by a commander on G-Series orders

- Contents of UIF: A UIF may only be established when some form of derogatory data 

is entered into it. In other words, a UIF must be populated with a record of unfavorable information or it ceases to exist. Common UIF documents include letters of 

reprimand (LORs), admonition (LOAs), and counseling (LOCs); records of nonjudicial 

punishment under Article 15 (Art 15), UCMJ; control roster actions; documented 

instances of discrimination or sexual harassment; civilian convictions; and records 

of courts-martial.

- Documenting UIF: The UIF is generally established through the use of an AF Form 

1058, Unfavorable Information File Action. This form notifies military members of the 

commander’s intent to establish a UIF and provides the member with 3 duty days 

to respond (45 days for non-extended active duty (EAD) Reservists and Air National 

Guard (ANG) members). Some unfavorable actions (e.g., court-martial convictions) 

do not require the use of AF Form 1058.

- Mandatory UIF Filings: Certain unfavorable information requires mandatory filing into 

a UIF. Examples of actions requiring mandatory filing include conviction by a court 

martial and Art 15s received by officers. Actions that require mandatory reporting do 

not require the use of an AF Form 1058.
40 The Military Commander and the Law

- Discretionary UIF Filings: Records of unfavorable information that do not require mandatory filing are included in a UIF at the discretion of the commander

Retention and Disposition

- Standard UIF Retention Time: The retention time depends on the nature of the document 

and the rank of the member. Removal of the document from the UIF is automatic at the 

end of the retention period. UIFs with no derogatory data contained within them are 

destroyed.

-- Enlisted UIF filings: 1 year-2 years

-- Officer UIF filings: 2-4 years

- Early Removal of UIF Filings: Commander’s may remove documents from the UIF early by 

initiating action via AF Form 1058, or via memorandum

-- Early removal of derogatory data is NOT AUTHORIZED if the member is still serving 

punishment

-- The authority to remove documents early from the UIF is contained in the tables at 

the end of this section

Access and Review

- Access: Only commanders and the following individuals may view UIFs:

-- Member who has the UIF

-- First sergeants

-- Rating officials, when preparing to write or endorse a performance report, make a 

promotion recommendation, or recommend reenlistment

-- Senior Air Force officer or commander of an Air Force element in a joint command

-- Air Force element section commander in a joint command

-- Military Personnel Flight (MPF) personnel, Inspector General (IG) personnel, inspection 

team members, legal office personnel, law enforcement personnel, Military Equal 

Opportunity (MEO) personnel, and substance abuse counselors authorized by the 

commander to review the document in the course of their official Air Force duties
CHAPTER TWO Quality Force Management 41

-- Program managers for Air Force Reserve programs

- Review: All UIFs require periodic review to ensure continued maintenance of documents in the UIF is proper

- Mandatory UIF Reviews by Commanders:

-- Within 90 days of assuming or being appointed to command

-- Annually, with the assistance of the staff judge advocate

-- Whenever individuals are being considered for, among other things, promotion, 

reenlistment, permanent change of station, personnel reliability program duties, 

retraining, enlisted performance reports (EPRs), or officer performance reports 

(OPRs)

-- Whenever Reserve and ANG members are being considered for in-residence 

professional military education or Reserve short courses, a statutory tour or an 

active duty tour over 30 days, or appointment or enlistment into the Air Force 

Reserve

References

AFI 36-2608, Military Personnel Records System (26 October 2015)

AFI 36-2907, Unfavorable Information File (UIF) Program (26 November 2014)

AF IMT 1058, Unfavorable Information File Action

AF Form 3070A, Record of Nonjudicial Punishment Proceedings (AB through SSgt)

AF Form 3070B, Record of Nonjudicial Punishment Proceedings (TSgt through CMSgt)

AF Form 3070A, Record of Nonjudicial Punishment Proceedings (Officer) 

Attachments

UIF Requirements for Enlisted Personnel

UIF Requirements for Officers
42 The Military Commander and the Law

UIF Requirements for Enlisted Personnel

Document Mandatory? 

(see Note 1)

Use AF 

Form 

1058?

Disposition Date Early Removal 

Authority

LOC, LOA, or LOR No Yes

1 year from the date of 

the commander’s UIF 

decision (signs section 

V of AF Form 1058)

Unit 

commander

or higher

Incidents involving 

discrimination or sexual 

harassment of personnel

No Yes

Placement upon the control 

roster Yes Yes

Art 15 when punishment is NOT

suspended or does NOT exceed 

30 days

No No (use AF 

Form 3070)

1 year from the date of 

the commander’s NJP 

decision (signs item 4 

of AF Form 3070)

Unit 

commander 

or higher (see 

Note 2) Art 15 when punishment 

is suspended OR when the 

punishment period is 31 days 

or more

Yes No (use AF 

Form 3070)

2 years from the date of 

the commander’s NJP 

decision (signs item 4 

of AF Form 3070)

Civilian court conviction that 

carries a possible sentence of 

confinement for 1 year or less 

(see Note 3)

No Yes

1 year from the date of 

the commander’s UIF 

decision (signs section 

V of AF Form 1058) Unit 

commander 

or higher Civilian court conviction that 

carries a possible sentence of 

confinement for more than 1 

year (see Note 3)

Yes No 2 years from the date 

the sentence was final

Conviction adjudged by 

court martial Yes No

2 years from the date 

the sentence was 

adjudged

Wing 

commander or 

the convening 

authority, 

whichever is 

higher (see 

Note 2)
CHAPTER TWO Quality Force Management 43

UIF Requirements for Officers

Document Mandatory? 

(see Note 1)

Use AF 

Form 

1058?

Disposition 

Date

Early Removal 

Authority

LOC or LOA No Yes

1 year from the date 

of the commander’s 

UIF decision (signs 

section V of AF 

Form 1058)

Wing commander 

or their designee or 

issuing authority, 

whichever is higher

Incidents involving 

discrimination or sexual 

harassment of personnel

No Yes

Placement upon the 

control roster Yes Yes

LOR Yes Yes (see 

Note 4)

2 years from the 

date the commander 

signs section V of 

AF Form 1058

Art 15 Yes No (use AF 

Form 3070)

2 years from 

the date of the 

commander’s NJP 

decision (signs item 

4 of AF Form 3070)

Wing commander 

or the imposing 

commander, 

whichever is higher 

(see Note 3)

Civilian court conviction that 

carries a possible sentence of 

confinement for 1 year or less 

(see Note 3)

No Yes

1 year from the date 

of the commander’s 

UIF decision (signs 

section V of AF Form 

1058) Wing commander 

or their designee

Civilian court conviction that 

carries a possible sentence of 

confinement for more than 1 

year (see Note 3)

Yes No

2 years from the 

date the sentence 

was final

Conviction adjudged by 

court martial Yes No

4 years from the 

date the sentence 

was adjudged

Wing commander 

or the convening 

authority, 

whichever is higher 

(see Note 2)
44 The Military Commander and the Law

Notes:

1. Commanders decide what to do with optional UIF documents. After initially deciding not to establish a UIF, commanders may elect to establish a UIF or include an 

earlier administrative action in a previously established UIF if the date of the action 

or document is within 6 months from the date of the action. This does not apply to 

individuals who have reenlisted since the date of the document.

2. Punishment must be completed prior to early removal.

3. Also includes actions tantamount to a finding of guilty. The conviction may be from 

a foreign or domestic court.

4. Use AF Form 1058 to enter the LOR into the UIF, but the commander does not need 

to submit the AF Form 1058 to the officer since the officer is provided an opportunity 

to respond to the LOR when it is initially presented.
CHAPTER TWO Quality Force Management 45

CONTROL ROSTERS

A control roster is a “watch list” for individuals whose duty performance is substandard 

or who fail to meet or maintain Air Force standards of conduct, bearing, and integrity, 

on- or off-duty. Individuals placed on a control roster are ineligible for a permanent 

change of station (PCS) (except for mandatory PCS), permanent change of assignment 

(PCA), temporary duty assignment (TDY), or attend formal training. Also, eligibility for 

promotion and re-enlistment is limited. Commanders at all levels are authorized to use 

a control roster.

Purpose

- Control roster is a rehabilitative tool

- Control rosters assist commanders in controlling or evaluating a member’s performance and provide the member an opportunity to improve that performance

- Other rehabilitative tools should be considered before placing a member on the 

control roster

- A single incident of substandard duty performance or an isolated breach of standards 

not likely to be repeated should not ordinarily be a basis for a control roster action

- Placing an individual on the control roster is not a substitute for more appropriate administrative, judicial, or nonjudicial action. Additionally, individuals are not 

shielded from other appropriate actions by virtue of being placed on the control 

roster.

Procedure

- Authority to Place Members on Control Roster:

-- Enlisted: Commanders at all levels have the authority to add enlisted members 

to or remove them from the control roster

-- Officers: Commanders at all levels have the authority to add officers (if the commander is senior to the officer) to a control roster, but officers can only be removed 

from a control roster by the wing commander or issuing authority, whichever is 

higher in rank

- Document control roster action on AF Form 1058, Unfavorable Information File Action
46 The Military Commander and the Law

- Member Response to Control Roster Action:

-- Active Duty: Acknowledge receipt of the action and has 3 duty days to respond

-- Non-Extended Active Duty (EAD) Reserve or Air National Guard (ANG) Members: If 

on duty, acknowledge receipt of the action, and then has 3 duty days to respond. 

If member departs the duty area prior to these 3 duty days, serve via certified mail 

to the member’s home address or best available address. Member is presumed 

to have received this correspondence and has 45 calendar days to acknowledge 

the notification and provide pertinent information before a final decision is made.

- Duration of Control Roster:

-- Active Duty: Up to 6 months

-- Non-EAD Reserve or ANG: Up to 12 months

- If the member’s conduct or performance does not improve during the observation 

period, the commander should consider whether a more severe response is required, 

such as initiating an administrative discharge

- Commanders may direct an Officer Performance Report (OPR) or Enlisted Performance Report (EPR) before entering or removing the person from the control roster, 

or both

- Unfavorable Information File (UIF) action is required if an individual is placed on the 

control roster

- Control roster is maintained by the UIF monitor

Consequences

- PCS/PCA reassignment is limited. For Reserve and ANG assignments, individuals 

remain eligible for PCS while on the control roster, though the gaining commander 

or Individual Mobilization Augmentee (IMA) program manager will decide if the 

assignment is appropriate.

- All formal training must be canceled

- Eligibility for promotions and reenlistments is limited

- Placement on the control roster requires mandatory filing in the member’s UIF
CHAPTER TWO Quality Force Management 47

References

AFI 36-2608, Military Personnel Records System (26 October 2015)

AFI 36-2907, Unfavorable Information File (UIF) Program (26 November 2014)

AF Form 1058, Unfavorable Information File Action
48 The Military Commander and the Law

ADMINISTRATIVE DEMOTIONS

An administrative demotion is a quality force management tool commanders have to 

help ensure a quality enlisted force. Administrative demotions are intended to place 

Airmen at a rank commensurate with their skill level and ability. Administrative demotions are not intended to be punitive, nor should they be used as a replacement for more 

appropriate action under the UCMJ.

Demotion and Appellate Authorities

- Demotion Authority:

-- E-7 and below: Group commander (or equivalent level commander)

-- E-8 and E-9: MAJCOM/CC, FOA/CC, or DRU/CC (unless delegated to the CV, CS, 

MP, DP, or NAF/CC). For Reserve members, AFRC/CC is the demotion authority for 

E-8 and E-9 although this may be delegated to NAF commanders.

- Appellate Authority: Next level commander above the demotion authority 

commander

Reasons for Demotion

- Basis for a Demotion Includes:

-- Officer trainees or pipeline students if eliminated from training

-- Termination of student status of members attending TDY Air Force schools

-- Failure to maintain or attain the appropriate skill/grade level

-- Failure to fulfill non-commissioned officer (NCO) responsibilities, as defined in 

AFI 36-2618, The Enlisted Force Structure

-- Failure to keep fit

-- Failure to perform

-- Not participating in reserve training, per AFI 36-2254, Vol 1, Reserve Personnel 

Participation (Reserve members)

- Do not use administrative demotions when UCMJ action is better suited
CHAPTER TWO Quality Force Management 49

- The basis for the demotion must have occurred in the current enlistment unless

the commander does not become aware of the facts and circumstances until the 

subsequent enlistment

- In cases where demotion actions may be appropriate, members should be given 

the opportunity to overcome their deficiencies prior to the initiation of the action

Due Process

- Consult with the staff judge advocate (SJA) and Military Personnel Flight (MPF) prior 

to action:

-- SJA: Legal sufficiency review of proposed demotion

-- MPF: Administrative assistance in assembling and routing the demotion action

- Notify the Member: Member’s commander (usually squadron commander) notifies 

the member in writing of (1) the intention to recommend demotion, (2) the basis for 

the action, (3) the demotion authority (if other than the initiating commander), (4) 

the recommended grade, and (5) specific reasons for the demotion and a complete 

summary of the supporting facts

- Member Response: The member has the right to counsel and to respond within 3 

duty days (30 calendar days for non-extended active duty (EAD) Reserve members) 

orally, in writing, or both

-- Members eligible for retirement may apply for retirement in lieu of demotion

- Initiating Commander Decision: Following the member’s response, if the commander 

elects to continue the proceedings, the case file is forwarded to the demotion authority for action

- Demotion Authority Action: The demotion authority fully reviews the initiating commander’s recommendation, the member’s response, and the member’s entire military 

record prior to taking action

-- Demotion authority can do the following: (1) decline to demote the member, 

(2) approve the demotion recommendation, or (3) approve a greater or lesser 

demotion than recommended

- Appeal: The member may appeal the decision to the demotion authority. The appeal 

is first reviewed by the demotion authority. If the demotion authority does not grant 

the appeal, the appeal will be sent to the next higher commander for a decision.
50 The Military Commander and the Law

“Demotable” Grades

- The following demotions are permitted:

-- E-2 may be demoted to E-1

-- E-3 may be demoted to E-2

-- E-4 through E-9 may be demoted to E-3; however, a demotion of three or more 

grades is only appropriate when no reasonable hope exists that the member will 

ever show the proficiency, leadership, or fitness that earned the initial promotion

- High Year Tenure (HYT) Implications from Administrative Demotions: Administrative 

demotions may trigger mandatory HYT separations from the service. When a member is demoted, the member assumes the HYT restrictions of that grade and will be 

separated within 120 days of the effective date of demotion. HYT dates follow:

-- When reduced to SrA and below: 8 years

-- When reduced to SSgt: 15 years

-- Personnel with 16 or more years total active federal military service (TAFMS): 

“Lengthy Service Qualified;” HYT revised to the 20-year point

-- SMSgt and below over 20 years: HYT revised to the last day of the 6th month 

following demotion effective date

Restoration of Grade

- Once the demotion action is complete, the demotion authority may, if appropriate, 

restore the member’s original grade between 3 months and 6 months after the effective date of the demotion
CHAPTER TWO Quality Force Management 51

Demotion of Reserve Members

- Rules governing demotion of reserve a member is similar in concept to the rules 

governing active duty members; however, the processing differs. See AFI 36-2502, 

Airmen Promotion/Demotion Actions, Chapter 9, for the procedures.

- Immediate commander can, when necessary, use certified mail sent to the Reserve 

member’s address or best available address when notifying a Reserve member of 

his/her intent to recommend demotion, and, when applicable, his/her intent to forward the demotion action to the demotion authority

- Demotion authority may also use certified mail to notify a Reserve member of his/her 

decision to demote the member and of the member’s right to appeal. Reserve members not on EAD have 30 calendar days to submit his/her appeal.

References

AFPD 36-25, Military Promotion and Demotion (7 May 2014) 

AFI 36-2254, Vol 1, Reserve Personnel Participation (26 May 2010) 

AFI 36-2502, Airman Promotion/Demotion Programs (12 December 2014), incorporating Change 1, 

27 August 2015

AFI 36-2618, The Enlisted Force Structure (27 February 2009), certified current 23 March 2012 
52 The Military Commander and the Law

SELECTIVE REENLISTMENT

The selective reenlistment program (SRP) is designed to ensure only enlisted members 

who consistently demonstrate the capability and willingness to maintain high professional 

standards are afforded the privilege of continued military service. The program identifies 

members nearing the end of their current term of service and provides a process for the 

commander to deny reenlistment.

Standard for Denial of Reenlistment

- Commanders have total SRP selection authority (as long as no other factors barring 

immediate reenlistment exist)

- Commanders may non-select any Airman for SRP as long as the Airman is in his/her 

“SRP window”

- Commanders will not use the SRP to deny reenlistment when involuntary separation 

is more appropriate

Immediate Supervisor’s Role

- Immediate supervisors are responsible for ensuring members meet quality standards

- Supervisors (and commanders) are notified by the Military Personnel Section (MPS) 

when Airmen are nearing the end of their term of enlistment and are subject to SRP 

consideration. The supervisor provides recommendations for selection/non-selection 

to the commander. 

- SRP recommendations are made using AF Form 418, Selective Reenlistment Program 

Consideration

Commander’s Role

- Commanders determine whether a member should be denied reenlistment

-- Decisions to deny reenlistment should be based on a demonstrated lack of 

capability and an unwillingness to maintain high professional standards. Unit 

commanders consider the supervisor’s recommendation, the member’s duty 

performance, and career force potential before making a decision.
CHAPTER TWO Quality Force Management 53

-- The commander should also consider (1) Enlisted Performance Reports (EPRs), (2) 

unfavorable information from any substantiated source, (3) the Airman’s willingness to comply with AF standards, and (4) the Airman’s ability to meet required 

training and duty performance levels

- Commanders may reverse their SRP decisions at any time

Member Appeals of Denial of Reenlistment

- If the supervisor recommends non-selection or the commander non-concurs with 

the supervisor’s recommendation to allow the member to reenlist, the commander 

must notify the member of the specific reasons for non-selection, areas needing 

improvement, appeal opportunity, promotion ineligibility, and the possibility of 

future reconsideration and selection

- Member Notification of Intent to Appeal: The member has 3 workdays to notify the 

commander of whether they intend to appeal the reenlistment denial (AF Form 418, 

Block V)

- Member Submission of Appeal: If the member decides to appeal, the member has a 

total of 10 workdays to submit the appeal itself. Member submits the appeal to the 

MPS for processing.

-- Appellate authorities

--- Group Commander: First term Airmen and retirement eligible Airmen

--- Wing Commander: Second term Airmen and career Airmen with fewer than 

16 years of service at the end of their current enlistment

--- Secretary of the Air Force (SecAF): Airmen with more than 16 years of service 

but less than 20 years of service at the expiration of their current enlistment

-- Any commander in the reviewing chain may approve an Airman’s appeal as it is 

routed to the ultimate appellate authority

- Legal Review of Reenlistment Denial Appeals: A legal review is required when a member appeals SRP decisions. It is recommended that commanders contact the servicing 

legal office prior to notifying a member of a non-selection decision.
54 The Military Commander and the Law

Collateral Impact of Reenlistment Denials

- SRP non-selection makes members ineligible for promotion and automatically cancels projected promotion line numbers

- Once a member reenlists, any misconduct taking place in the earlier enlistment generally cannot be used as a basis for an administrative discharge action

References

AFI 36-2606, Reenlistment in the United States Air Force (9 May 2011), incorporating Change 1, 

29 August 2012

AF Form 418, Selective Reenlistment Program Consideration
CHAPTER TWO Quality Force Management 55

RESERVE REENLISTMENTS

The quality of the Air Force Reserve program depends on the quality of its enlisted members. Reenlistment in the Air Force Reserve is not a right; it is a privilege. Commanders 

have significant discretion in making reenlistment decisions. In making this determination, commanders should primarily rely upon evaluations of the member’s performance 

during their current enlistment and supervisor recommendations.

Standard for Denial of Reenlistment

- Commanders considering Reservist reenlistment should primarily consider performance and the recommendations of the member’s immediate supervisors

- Other factors for a commander to consider include: (1) potential, (2) grade and skilllevel, (3) aptitude, (4) education, (5) motivation, (6) self-improvement efforts, (7) training and participation, (8) derogatory information, (9) physical condition, (10) attitude 

and behavior, and (11) assumption of responsibility

Commander’s Role

- Commanders are instructed to appoint a career non-commissioned officer (NCO) of 

the grade of E-5 or above and at the 7 or 9 skill-level to serve as unit career advisor 

(UCA) to administer the Airmen Career Retention Program

-- Unit supervisors give the UCA recommendations on members being considered 

for reenlistment

-- Unit commanders consider the UCA’s recommendation, the member’s duty performance, and career force potential before making a decision

-- Unit commanders make the final decision on whether a person is eligible for 

reenlistment or extension

- Common Factors Precluding Reenlistment:

-- Unsatisfactory participation, performance, attitude, or behavior

-- Currently undergoing nonjudicial punishment (Article 15)

-- Conscientious objectors
56 The Military Commander and the Law

-- Awaiting HQ AFRC consideration of a waiver of physical disqualification

-- See AFI 36-2612, United States Air Force Reserve (USAFR) Reenlistment and Retention 

Program, Table 6.2 for full list of factors precluding reenlistment

- Even when policy does not prohibit a member from reenlisting, the commander 

should carefully consider whether the member meets the Air Force’s quality standards

Non-Selection for Reenlistment

- Pre-Coordination: Commanders should contact the servicing legal office prior to 

notifying a member of a non-selection decision

- Commander Action: The commander or supervisor completes AF Form 418, Selective 

Reenlistment Program Consideration, when not selecting a member for reenlistment 

and sends it to the retention program manager

- Member Notification: If the unit commander selects a member for reenlistment but 

later deems the member ineligible to reenlist, the commander prepares AF Form 418 

and processes it as if it were an initial non-selection

- Lengthy Service Exception to Denial of Reenlistment: Except for physical disability or 

for cause, members may not be denied reenlistment if they have completed at least 

18 but less than 20 years satisfactory service for retirement purposes

Appeals of Denial of Reenlistment

- Members who have not been selected for reenlistment have a right to appeal

-- Member must submit a written appeal to the Military Personnel Flight (MPF) by 

the next scheduled Unit Training Assemblies (UTA) after the date he/she was 

notified

-- Members may appeal non-selection for reenlistment through one of two options:

--- Senior Rater Appeal: Unit members may appeal to their senior Reserve commander for final selection or non-selection authority

--- Denial of Reenlistment Board: Upon approval by the member’s senior Reserve 

commander, a member may present their appeal to a three-person appeal 

board which will review all documentation and make a recommendation to 

the member’s senior Reserve commander for final action
CHAPTER TWO Quality Force Management 57

---- Member’s Career Enhancements Section appoints all board members

---- All board members must be superior in grade to member

---- At least one board member must be a field grade officer

---- For enlisted appeal boards, board members must be E-7 and above

- Under either appeal option, the ultimate decision of the member’s senior Reserve 

commander is final

References

UCMJ Art. 15 

AFI 36-2612, United States Air Force Reserve (USAFR) Reenlistment and Retention 

Program (25 July 1994)

AF Form 418, Selective Reenlistment Program Consideration
58 The Military Commander and the Law

OFFICER AND ENLISTED EVALUATION SYSTEMS

The single most important element needed for successful mission accomplishment is 

performance. The officer evaluation system (OES) and the enlisted evaluation system (EES) 

are the Air Force’s programs for evaluating and documenting performance. Commander 

involvement in the program is critical to developing and retaining a high-caliber force.

- The Air Force evaluation system is generally comprised of the Airman Comprehensive 

Assessment (ACA) (i.e., initial and mid-term rater performance feedback), Enlisted 

Performance Reports (EPR), Officer Performance Reports (OPR), Letters of Evaluation 

(LOE), and training reports.

- The servicing Military Personnel Section (MPS) provides command support and guidance regarding officer and enlisted evaluations. Air Force Personnel Center (AFPC)

provides training and guides on their web site.

- Unit commanders are responsible for ensuring first-time supervisors get mandatory 

OES/EES training within 60 days of being appointed as a rater. Additionally, the commander should ensure Air Force performance evaluators receive annual recurring 

OES/EES training.

- Access to Evaluations: Evaluations are For Official Use Only (FOUO), subject to the 

Privacy Act, and exempt from public disclosure. Only persons who have a proper 

need to know may read the evaluations.

Airman Comprehensive Assessment

- The first step in the evaluation of any Air Force member is initial and midterm performance feedback provided to the member by their rater

-- Initial Feedback: Within 30 days of a change in supervision

-- Midterm Feedback: Halfway through the member’s rating period

- ACA sessions must provide realistic feedback to improve the ratee’s performance and 

written comments, not just marks on the form. Any behavior that may result in further 

administrative or punitive action should be documented in a separate document.

- The rater provides the original ACA worksheet to the ratee. The rater may keep a copy 

for personal reference, but the ACA worksheet will not be made part of any official 

personnel record or be included in an individual’s PIF, UNLESS the ratee introduces 

it first or alleges he/she did not receive required feedback or claims the sessions 

were inadequate.
CHAPTER TWO Quality Force Management 59

Performance Reports—General Considerations

- OPRs and EPRs are critical in nearly every personnel decision within the Air Force. 

They form the basis for promotion, training, reenlistment, and other administrative 

decisions. A poorly managed evaluation system inadequately identifies top performers and undermines confidence in the fairness of the system.

- Performance reports should take into account any adverse administrative or punitive 

actions taken against the individual during the rating period

- Improperly processed evaluations may limit commanders’ options when pursuing 

adverse administrative actions against poor performers

Performance Reports—Timing

- OPRs: Complete OPRs in accordance with timing requirements set forth in Table 3.3 

of AFI 36-2406, Officer and Enlisted Evaluation System, attached below

- EPRs: All EPRs are subject to a “static close out date” (SCOD). This is the date that 

all enlisted evaluations will close out for a specific grade and is the date used to 

determine the final Time in Grade/Time in Service (TIG/TIS) eligible pool for senior 

rater stratification/endorsement and forced distribution allocations. EPRs cannot be 

signed before this date. The local Force Support Squadron (FSS) is the point of contact 

(POC) for any questions by raters.

Performance Reports—Required and Prohibited Comments

- Some specific comments or entries are required and must be included in OPRs and 

EPRs. These comments should be drafted as stated in the AFI. Slight deviations are 

allowed, but entries significantly deviating from the recommended format are unacceptable. These comments and entries include, but are not limited to:

-- For a referral report or training report (TR), the evaluator must specifically detail 

the behavior or performance that caused the report to be referred (referral reports 

are discussed in detail below)

-- Explaining any significant disagreement with a previous evaluator on a performance report

-- Comments relating to the ratee’s behavior are mandatory on the ratee’s next OPR, 

EPR, TR, and an officer’s next promotion recommendation form (PRF), if the ratee 

has been convicted by court-martial
60 The Military Commander and the Law

-- If performance feedback was not accomplished, comment on that fact is 

mandatory

- Certain comments are inappropriate to include in performance reports. Some of the 

common mistakes include, among others:

-- Promotion recommendations for officers

-- Duty history or performance outside the current reporting period, except as 

allowed in AFI 36-2406, paras. 1.12.6.5 and 1.12.7.1

-- Comments referring to ACA sessions, except in the “Performance Feedback Certification” block

-- Events that occur after the close-out date

-- Any action against an individual that resulted in an acquittal or failure to implement an intended personnel action. This does not necessarily bar commenting 

on the underlying misconduct that formed the basis for the action, but consult 

with the servicing staff judge advocate before doing so.

-- Actions taken by a member outside the normal chain of command that represent 

guaranteed rights of appeal, such as issues raised with the inspector general

-- Race, ethnic origin, gender, age, or religion of the ratee

-- Temporary or permanent disqualification under AFMAN 13-501, Nuclear Weapons 

Personnel Reliability Program (PRP)

-- Participation in drug or alcohol abuse rehabilitation programs

-- Performance as a court-martial member

-- Punishment received as a result of an administrative or judicial action. Restrict 

comments to the conduct or behavior that resulted in the action.
CHAPTER TWO Quality Force Management 61

SecAF Mandated Report of Ratee Criminal Convictions to Rater

- By order of the SecAF (per AFI 36-2406, para. 1.8), ALL Air Force members who are 

on active duty or in an active status in a Reserve Component, shall report (in writing) 

to their rater within 72 hours any conviction for a violation of a criminal law of the 

United States or violations of a criminal law of any other country to the member’s 

rater (first-line military supervisor) or summary courts-martial convening authority

-- For purposes of this policy, the term “conviction” includes a plea or finding of 

guilty, a plea of nolo contendere (no contest), and all other actions tantamount to 

a finding of guilty, including adjudication withheld, deferred prosecution, entry 

into adult or juvenile pretrial intervention programs, and any similar disposition 

of charges

-- For purposes of this policy, a criminal law of the United States includes any 

military, Federal, State, or equivalent criminal law or ordinance; and any criminal 

law or ordinance of any county, parish, municipality, or local subdivision of any 

such authority, other than motor vehicle violations that do not involve a court 

appearance

- Active duty members shall submit reports under this policy within 15 days of the 

date the conviction is announced

- Commanders and/or supervisors who have questions regarding whether a particular 

conviction triggers the mandated comment should consult with their staff judge 

advocate

Referral Reports

- Certain comments or ratings in a performance report may result in it being “referred” 

to the ratee for comments. An evaluator whose ratings or comments cause a report 

to become a referral report must give the ratee a chance to comment on the report.

- Refer a Performance Report When:

-- An evaluator marks “Does Not Meet Standards” in any performance factor in 

Section IX of the OPR or places a mark in the far left block of any performance 

factor in Section III or marks a rating of “1” in Section V of an EPR; or

-- Any comments or attachments are derogatory; imply/refer to behavior incompatible with standards of personal or professional conduct, character, judgment, or 

integrity; and/or refer to disciplinary actions
62 The Military Commander and the Law

- The procedures involved when referring an OPR or EPR are provided in AFI 36-2406, 

beginning with para. 1.10 (see AFI 36-2406, fig. 1.1, for referral memorandum)

References

AFMAN 13-501, Nuclear Weapons Personnel Reliability Program (PRP) (29 May 2015), including 

AFMAN13-501_AFGM2016-01, 10 March 2016 

AFI 36-2406, Officer and Enlisted Evaluation Systems (5 April 2013), incorporating through 

Change 3, 30 November 2015

AF Form 707, Officer Performance Report (Lt through Col)

AF Form 724, Airman Comprehensive Assessment Worksheet (2Lt through Col)

AF Form 910, Enlisted Performance Report (AB through TSgt)

AF Form 931, Airman Comprehensive Assessment Worksheet (AB through TSgt)

AF Form 932, Airman Comprehensive Assessment Worksheet (MSgt through CMSgt)

Attachments

AFI 36-2406, Table 3.3, When to Prepare OPRs for Officer on the EAD and ANG Officers

AFI 36-2406, Table 3.12, Static Close-out Date (SCOD) Enlisted Chart for RegAF
CHAPTER TWO Quality Force Management 63

AFI 36-2406, Table 3.3 

(see http://static.e-publishing.af.mil/production/1/af_a1/publication/afi36-2406/afi36-2406.pdf)

When to Prepare OPRs for Officer on the EAD and ANG Officers

R

U

L

E

A B C D

If the

ratee is And

And 

supervision 

period was

Then write 

evaluation and

enter reason as

1

A lieutenant 

thru colonel 

(see Notes 1, 

2, and 3)

Has not had an evaluation, or one year has passed 

since close-out date of last OPR or TR from school of 20 

weeks or more

120 calendar 

days

Annual

(see Note 4)

2 The rater changes, officer departs PCS/PCA to school, 

or officer is Separating (see Notes 5, 6, 7, 8)

120 calendar 

days

Change of Rating 

Official (CRO) (see 

Note 9)

3

The ratee or rater departs TDY for more than 120 days 

for other than formal training or normal contingency 

(deployed) operations (see Notes 5 and 6)

120 calendar 

days CRO

4

Determination of appropriateness of action under AFIs 

36-2907, 36-3206, 36-3207, or 36-3209 is needed, 

or ratee's performance or conduct is unsatisfactory or 

marginal and a special evaluation is appropriate

60 calendar days 

(see Note 10)

Directed by (Chief 

NGB; Office of 

Adjutant General; 

MAJCOM;

wing, group, 

squadron, etc.) 

commander

5 The ratee has been declared missing in action (MIA), 

captured, or detained in captive status See Note 11 Directed by HQ USAF

6

A special evaluation is directed by HQ USAF (see Note 

12), or National Guard Bureau (NGB) for ANG officers 

not on EAD

As directed Directed by HQ USAF, 

Chief NG, etc.

7

A referral Letter of Evaluation (LOE) has been written 

or an LOE would contain referral comments, if written 

(see Note 13)

60 calendar days

8 Is placed into record status 6, deserter status 60 calendar days 

(see Note 1)

Directed by the 

Commander

9 An evaluation is prepared to document significant 

improvement in duty performance

120 calendar 

days (see 

Note 15)

10 Any sentence of confinement as the result of a 

court-martial

No minimum 

number of days 

required
64 The Military Commander and the Law

Notes (referencing AFI 36-2406):

1. If ratee is attending training or education, see ch. 6.

2. Colonels selected for promotion to brigadier general receive evaluations in accordance with ch. 7.

3. If the OPR is already a matter of record and the event or circumstances that brought 

about the evaluation changes or no longer exists, take no action. The OPR is a valid 

evaluation and remains in the ratee’s records. Exception: The MPS/CSS/HR Specialist 

updates referral OPRs that are prepared as a result of a PCS and files them in the 

ratee’s records regardless of whether or not the evaluation was a matter of record at 

the time authorities canceled or delayed an assignment.

4. If a CRO occurs after the original annual date has passed but before the 120-day 

supervision period ends, the evaluation is closed out the day prior to the rater 

change, provided at least 60 days of supervision have been obtained. The reason 

for the evaluation remains “Annual.”

5. Do not confuse CRO with change of supervisor. For officers on the EAD and ANG 

officers, the home station commander may authorize a change of reporting official 

to the TDY location if ALL the following conditions are met: Note: The senior rater 

matched to the ratee’s home station PAS code must perform senior rater duties.

a. Someone at the TDY location can perform normal rater duties.

b. The rater’s rater meets the requirements of para. 1.6.3.

c. The home station and TDY unit commanders have approved the change [The 

Management Levels (ML) must approve inter-command changes].

d. The home station commander assigns a new rater when the TDY ends.

6. If the ratee is selected to fill an 365-day extended deployment billet a CRO evaluation 

must be accomplished provided there has been at least 120 days supervision.

7. An evaluation is prepared on officers discharged from the ANG and reassigned to 

ARPC unless para. 3.4. applies.

8. If ratee is an ANG officer (not on EAD) serving on an AD tour of at least 120 days, AD 

supervisor prepares the evaluation.

9. CRO includes separation from EAD. However, no evaluation is required when the 

criterion in para. 3.4.13. applies.

10. For officers on the EAD and ANG officers, this includes placement on or removal from 

the control roster.

11. Do not prepare evaluations for periods of MIA, captured, or detained in captive status 

of less than 15 calendar days. If the ratee remains in one of these categories for 15 

calendar days or more, prepare an evaluation under this rule without regard to the 

number of days of supervision. Close the evaluation on the day the ratee was placed 
CHAPTER TWO Quality Force Management 65

in MIA, captured, or detained in captive status. These evaluations are as directed by 

HQ AFPC/DPSIDE.

12. HQ AFPC/DPSIDE, HQ AFPC/DPSOO, and USAF/DPO retain the authority to direct 

evaluations under this rule. Special evaluations covering outstanding duty performance are not permitted under this rule.

13. If the current rater does not consider the referral comments in an LOE to be serious 

enough to warrant permanent recording, an OPR will not be prepared.

14. The close-out date of the evaluation is the effective date the ratee is placed in record 

status 6, deserter.

15. A commander may direct an evaluation for significant duty improvement only if the 

previous evaluation was referred due to substandard duty performance.

Table 3.12—Static Close-out Date (SCOD) Enlisted Chart for RegAF

RegAF Personnel

RANK SCOD

SrA and Below 31 Mar

SSgt and SSgt selects 31 Jan

TSgt and TSgt selects 30 Nov

MSgt and MSgts selects 30 Sep

SMSgt and SMSgt selects 31 Jul

CMSgt and CMSgt selects 31 May
66 The Military Commander and the Law

OFFICER PROMOTION PROPRIETY ACTIONS

Commanders may determine an officer is not qualified for promotion, should be removed 

from a promotion list, or have the officer’s promotion date delayed. In such cases, the 

commander presents information to the Secretary of the Air Force (SecAF) or a selection board for a determination. These actions are known as officer promotion propriety 

actions. Generally, only SecAF (or designee) may end an officer promotion delay action 

or approve a promotion list removal action.

Preliminary Considerations

- Before taking a promotion propriety action, the commander MUST determine if a 

preponderance of the evidence shows it is more likely than not that the officer is 

not mentally, physically, morally, or professionally qualified to perform the duties of 

a higher grade

- If an officer is not qualified to perform the duties of the next grade, the proper authority must take promotion propriety action before the effective date of promotion

- If commanders believe an officer is not qualified to perform the duties of the next 

grade, they should speak with the servicing staff judge advocate (SJA) to determine 

whether sufficient evidence exists to support a proprietary action

Not Qualified for Promotion (NQP)

- The officer’s immediate commander initiates the recommendation to find the officer 

NQP and forwards it with appropriate coordination to the major command commander for review

- For officers meeting central selection boards, the NQP recommendation case file 

must arrive at HQ AFPC/DPPPO before the board convenes. This recommendation is 

valid for only one selection board.

- Before separating a second lieutenant found NQP, an attempt should be made to 

retain the officer on active duty for 6 months from the date promotion would have 

occurred (unless retention is inconsistent with good order and discipline) and give 

the officer an opportunity to overcome any problem and qualify for promotion
CHAPTER TWO Quality Force Management 67

Removal from a Promotion List

- The officer’s immediate commander initiates the removal action and forwards it with 

appropriate coordination to the major command commander for review. The package 

then goes to SecAF, who must approve any removal action.

- The immediate commander’s notification of the officer of the removal action automatically delays the officer’s promotion until SecAF makes a decision on the removal 

action

Delaying a Promotion

- Initiating a Promotion Delay: The officer’s immediate commander initiates the delay 

of promotion before the effective date of promotion and forwards it with appropriate 

coordination to the major command commander for review

- Effective date of Promotion Delay: The delay is effective when the immediate commander notifies the officer of the delay, either verbally or in writing

- Approval Authority for Promotion Delays: The major command commander approves 

initial promotion delays up to 6 months. SecAF may grant extensions for up to an 

additional 12 months.

- Member’s Response to Promotion Delay: The officer whose promotion is delayed 

may make a written response to SecAF

- Authority to Terminate Promotion Delay: Generally, only SecAF (or designee) has 

authority to end a promotion delay

-- Notwithstanding the commander’s recommendation, SecAF (or designee) may 

promote an officer on his/her original effective date; promote an officer with a 

date of rank adjustment; extend the officer’s promotion delay; or remove the 

officer from the promotion list

-- A reviewing commander may terminate a delay only when the delay was initiated to conduct an investigation or inquiry, and upon completion, there was no 

finding or conclusion that substantiated or partially substantiated any allegations 

and no disciplinary action of any kind (administrative, nonjudicial, or judicial) is 

taken against the officer
68 The Military Commander and the Law

Promotion Propriety Action Procedures

- Notification to Officer: The commander must inform the officer, verbally or in writing, 

of the propriety action before the effective date of promotion

- Notification in Writing is Preferred: If written notification is not possible, confirm the 

action in writing as soon as possible

- Statement of Reasons: The action itself must contain a clear statement of reasons for 

the decision and must list the evidence supporting the action. It must also show that 

the affected officer had an opportunity to review the information.

- Officer’s Response: The officer should acknowledge the action and be allowed 5 

working days to respond. Include in the package any comment from the officer.

- AFI 36-2501, Officer Promotions and Selective Continuation, Table 5.1, contains procedures for processing propriety actions

Reserve and Air National Guard Officers

- Commanders of officers in the Air Force Reserves and Air National Guard initiate 

a promotion propriety action when there is cause to believe that the officer is not 

mentally, physically, morally, or professionally qualified to perform duties of a higher 

grade

- An officer’s wing commander or equivalent initiates the promotion proprietary action

- Procedures for actions involving officers in the Air Force Reserves and Air National 

Guard can be found in AFI 36-2504, Officer Promotion, Continuation and Selective Early 

Removal in the Reserve of the Air Force, Table 7.1

References

AFI 36-2501, Officer Promotions and Selective Continuation (16 July 2004), incorporating through 

Change 3, 17 August 2009, including AFI36-2501_AFGM2016-01, 24 June 2016

AFI 36-2504, Officer Promotion, Continuation and Selective Early Removal in the Reserve of the 

Air Force (9 January 2003), incorporating through Change 5, 19 October 2007, certified 

current 22 January 2010

AF Form 4363, Record of Promotion Propriety Action

AF Form 4364, Record of Promotion Delay Resolution
CHAPTER TWO Quality Force Management 69

ENLISTED PROMOTION PROPRIETY ACTIONS

Air Force commanders are authorized to delay enlisted promotions or remove enlisted 

members from an approved promotion list when the commander deems it necessary in 

the interests of good order and discipline. Air Force promotion policy is to select individuals (active duty or reserve) for promotion based on potential to serve in the next higher 

grade. Only the best should be promoted due to the limited vacancies in higher grades. 

The following tools are available to commanders when managing enlisted promotions.

Non-Recommendation for Promotion

- An enlisted member is considered ineligible for promotion when non-recommended 

or removed from the promotion list by the promotion authority before the effective 

date of promotion, commonly referred to as “redlining”

- Standard: Poor or declining performance trends or recent serious misconduct

- A promotion authority can non-recommend E-3s and below in monthly increments 

up to 6 months. All other ranks are non-recommended for a specific promotion cycle.

- Airmen also become ineligible for promotion under other circumstances as outlined 

in AFI 36-2502, Airmen Promotion/Demotion Programs, Table 1.1, which include, but 

are not limited to:

-- Placement on the control roster

-- Serving a probationary period as part of an involuntary discharge action

-- Under a suspended reduction in grade imposed through nonjudicial punishment 

under UCMJ Art. 15

-- Conviction by court-martial or undergoing punishment or suspended punishment imposed by a court-martial

-- Conviction by a civilian court (excluding minor traffic violations), undergoing 

punishment or suspended punishment, probation, or work release program

Withholding of Promotion

- The immediate commander has the authority to withhold a promotion for up to one 

year after a member’s selection for the next higher grade, but before the effective 

date of promotion
70 The Military Commander and the Law

- A higher authority (wing or equivalent level commander) must approve extensions 

beyond a year

- This action allows the commander to evaluate unique or unusual events so a sound 

promotion decision can be made. It is not intended to be used when there is substandard performance or behavioral problems.

- The reasons for withholding a promotion can be found in AFI 36-2502, Table 1.2, 

which include, but are not limited to, when the member is:

-- Awaiting a decision on an application as a conscientious objector

-- Under court-martial or civilian charges

-- Placed into the Alcohol and Drug Abuse Prevention and Treatment program 

(ADAPT)

-- Under investigation or the subject of an inquiry (formal or informal) that may 

result in action under the UCMJ or prosecution by civilian authorities

-- When requested by the member’s commander based on other reasons with prior 

approval from the individual’s wing commander

- Effect on Date of Rank: If the commander terminates the withhold action, the member 

receives his original date of rank, and the effective date is the date the commander 

terminates the withhold action and recommends promotion

Deferral

- A deferral is a delay in promotion for a specified period of time

- The promotion authority may defer promotion to E-5 or higher for up to 3 months. 

Members awaiting promotion to the grades of E-1 to E-4 are not subject to promotion 

deferral.

- Standard: A deferral action is begun to determine if the member meets acceptable 

behavior and performance standards for the higher grade. If there is clear evidence a 

non-commissioned officer (NCO) is not suited to take on the increased responsibilities of the higher grade, then non-recommendation is the right course of action, not 

deferral.

- Effect of Date of Rank: The date of rank and effective date is the first day of the month 

after the deferral period ends
CHAPTER TWO Quality Force Management 71

Procedures

- When non-recommending, deferring, or withholding promotions, the commander 

informs the member of adverse actions before the promotion effective date. If the 

notification is verbal, the commander must confirm in writing within 5 workdays.

- The notification must include specific reasons, dates, occurrences, and duration of 

the action

- The notification and the Airman’s acknowledgment is maintained in the Automated 

Records Management System (ARMS)

Reserve Enlisted Members

- Standard: If the preponderance of the evidence indicates it is more likely than not 

that a Reserve enlisted member does not have the qualifications to be promoted

- Documentation: Commander disapprove promotions using AF IMT 224, Recommendation and Authorization for Promotion of Airman as Reserve of the Air Force

References

UCMJ Art. 15 

AFI 36-2502, Enlisted Airman Promotion/Demotion Programs (12 December 2014), incorporating 

Change 1, 27 August 2015

AFI 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program (8 July 2014)

AF IMT 224, Recommendation and Authorization for Promotion of Airman as Reserve of the 

Air Force
72 The Military Commander and the Law
73

Nonjudicial Punishment Overview and Procedures....................................................................74

Supplementary Nonjudicial Punishment Actions........................................................................83

Quality Force Management Effects of Nonjudicial Punishment.............................................89

CHAPTER THREE: NONJUDICIAL

3

PUNISHMENT UNDER ARTICLE 15, UCMJ
74 The Military Commander and the Law

NONJUDICIAL PUNISHMENT OVERVIEW 

AND PROCEDURES

Nonjudicial punishment (NJP) under Article 15, UCMJ, provides commanders with an 

essential and prompt means of maintaining good order and discipline outside of the 

court-martial process. NJP is designed to promote positive behavior changes in service 

members without the stigma of a court-martial conviction.

Overview

- Generally, any commander who is a commissioned officer may impose NJP for minor 

offenses committed by members under his/her command

- NJP procedures provide quick disciplinary action for a commander while maintaining 

due process for the accused member

Prerequisites

- Nature of the Misconduct—Minor Offenses: Nonjudicial punishment is solely utilized for the disposition of UCMJ offenses. Generally, it should be reserved for “minor 

offenses” under the UCMJ.

-- Minor Offenses: An offense is usually NOT considered minor if the maximum 

imposable punishment at a general court-martial for that offense includes a 

dishonorable discharge or confinement for more than one year

-- The decision whether an offense is “minor” is a matter of discretion for the commander imposing NJP. Factors to consider for determining a “minor offense” 

include:

--- The nature of the offense and the circumstances surrounding its commission

--- The effect of both the misconduct and the resulting NJP on good order and 

discipline

--- The member’s age, rank, duty assignment, record, and experience

--- The effect of NJP on the member and the member’s record
CHAPTER THREE Nonjudicial Punishment Under Article 15, UCMJ 75

- Shared Authority of Parent Unit Commander and Temporary Duty Assignment (TDY) 

Unit Commander to Issue NJP:

-- Member is not attached to TDY command: Home-station commander should 

handle the disposition of NJP

-- Member is attached to TDY command: TDY commander should confer with the 

member’s parent organization to determine the member’s background, past duty 

performance, and other relevant factors before initiating action

- Withholding of NJP Authority by Superior Commanders: Commanders at any echelon 

may withhold from any subordinate commander all or part of the authority—including the authority to impose NJP for specific types of offenses—that the subordinate 

would otherwise have under the UCMJ

-- Withholding of NJP authority by a superior commander should be in writing

-- Withholding of authority by a superior commander does not constitute unlawful 

command influence because it represents the independent exercise of command 

by the superior commander

- Swift Command Action Required: AFI 51-202, NonJudicial Punishment, mandates that 

80% of non-judicial punishment actions should be completed within 39 days from 

the report of the offense:

-- Date of “discovery” of offense to date of NJP offer: 21 days. “Date of discovery” 

means the date when an investigative agency (e.g., Air Force Office of Special 

Investigations (OSI), Security Forces Office of Investigations (SFOI), Inspector 

General (IG), legal office, commander, supervisor, or first sergeant) becomes 

aware of the allegation and has identified a subject.

-- Date of NJP offer to date of NJP completion: 18 days. This metric is further subdivided so no more than 9 days pass from offer to imposition of punishment, 

and no more than 9 days pass from punishment to Staff Judge Advocate (SJA) 

review of the completed NJP.

- Statute of Limitations: Unless the member is absent without leave (AWOL) or fleeing 

from justice, NJP may not be imposed for offenses committed more than 2 years 

before the date of NJP punishment imposition
76 The Military Commander and the Law

Procedures

- Forum Choice: For the member accused, NJP is a forum choice—meaning a commander cannot involuntarily impose NJP under Article 15 (unless the member is 

embarked on a naval vessel), but instead offers to adjudicate the alleged misconduct 

at proceedings outlined in Article 15 in lieu of doing so at a court-martial

- Staff Judge Advocate (SJA) Consultation Required: Commanders must confer with 

the SJA, or a designee, prior to both initiation of NJP proceedings and imposition of 

punishment. The military justice section of the base legal office prepares the AF IMT 

3070, Record of Nonjudicial Punishment Proceedings.

- Standard of Proof: No specific standard of proof is applicable to NJP proceedings in 

the Air Force

-- Commanders should, nonetheless, recognize that a member has the option 

to turn down the offer of NJP and demand trial by court-martial, where proof 

beyond a reasonable doubt by competent evidence is required for conviction. 

Commanders should consider whether such proof is available before initiating 

action under Article 15 and understand the consequences of offering NJP without 

sufficient evidence, i.e., an acquittal at court-martial.

-- If the evidence does not rise to the level of proof beyond a reasonable doubt, 

NJP is usually neither warranted nor recommended. Instead, commanders should 

consider lesser forms of disciplinary action, e.g., Letter of Reprimand (LOR), or if 

warranted, administrative discharge.

- Offering NJP: Commanders initiate NJP action by serving the AF IMT 3070

-- A member must always be informed of the identity of the commander who will 

actually make the findings and punishment decision before the member makes 

an election to accept NJP or demand court-martial 

-- If a new commander assumes responsibility for the case after the member was 

offered NJP proceedings, but before findings are made, inform the member of the 

identity of the new commander and provide 3 additional duty days for the member to decide to accept the NJP proceedings or demand trial by court-martial
CHAPTER THREE Nonjudicial Punishment Under Article 15, UCMJ 77

Member Rights

- Unless embarked on a naval vessel, an accused has the right to refuse an NJP and to 

demand trial by court-martial

- An accused service member served with an NJP has 3 duty days to in which to decide 

whether to “accept” NJP as the “forum” for their case

- Forum choice—not an admission of guilt. It is simply a choice by the member not 

to assert the right to a trial by court-martial and to instead allow the commander to 

determine his or her guilt, and punishment, if applicable. Once accepting NJP as the 

forum, the member has the right to either contest or admit guilt, at their discretion.

- An accused service member has the following rights in the NJP process. When 

responding to the offer of NJP on the AF IMT 3070, the accused member must annotate whether they exercised the following rights by initialing in the appropriate box:

-- Right to Counsel:

--- Commanders should encourage members to consult with the area defense 

counsel (ADC) in all cases. The AF IMT 3070 directs that an appointment 

with an ADC be established on behalf of a member prior to the commander 

notifying that member of the commander’s intent to impose NJP.

--- Typically, an ADC appointment will be arranged for the member by the First 

Sergeant or by legal office personnel prior to notification

-- Review of Evidence: The accused member has the right to examine all statements 

and evidence the commander intends to consider in deciding guilt, and then if 

applicable, punishment. The legal office normally supplies the evidence to the 

ADC.

-- Presentation of Evidence: If a member decides to accept NJP, he/she is entitled to 

present matters in defense, mitigation, and extenuation. Members may present 

matters in person, in writing, or both.

--- Written Matters: Must be submitted within 3 duty days, unless the commander grants an extension for good cause shown

--- Personal Appearance: May be public or private. Must be requested by the 

member when he/she make her NJP “elections” within 3 duty days of the 

“offer” of NJP. Except under extraordinary circumstances or when the imposing commander is unavailable, a member is generally entitled to appear 
78 The Military Commander and the Law

personally before the imposing commander and present matters in defense, 

mitigation, or extenuation. If the member chooses to make a personal 

appearance, the member also has the right to:

---- Be accompanied by a spokesperson (who does not have to be a lawyer)

---- Present witnesses who are reasonably available

--- Public Personal Appearances: A member may request that a personal presentation be open to the public

---- The commander may open the personal appearance to the public, even 

though the member does not request it or agree that the appearance 

should be open

---- “Public” NJP should neither be intended as, nor result in, the shame or 

humiliation of the member. For example, public NJP at a commander’s 

call, unit training assembly, or other public gathering would be inappropriate (unless the member consents). Rather, NJP proceedings may 

be attended by a limited number of people in a more private setting, i.e., 

the commander’s office.

---- The individuals in attendance at NJP proceedings should normally be 

limited to those in the member’s supervisory chain or people who can 

assist the commander in making a decision

Commander’s Findings

- Commanders must refrain from determining or considering punishment until guilt 

has been determined based on all the evidence, as well as the matters submitted 

by the member

- After a full and fair consideration of all matters in defense, mitigation, and extenuation, the commander must first determine whether or not the member committed 

the offense

-- If the commander determines the accused to be “not guilty” the NJP process is 

concluded

-- If the commander does determine the member to be guilty, the commander 

must then determine what punishment to impose
CHAPTER THREE Nonjudicial Punishment Under Article 15, UCMJ 79

Determining a Punishment

- Commanders are required to confer with the SJA (or his/her attorney designee) 

before imposing punishment except where impracticable due to military exigencies. 

The legal office will normally input the appropriate punishment language on the AF 

IMT 3070.

- Commanders should tailor the punishment to the offense and the member

-- Ordinarily, the commander should impose the least severe punishment sufficient 

to correct and/or rehabilitate the member

-- For example, commanders should generally impose an unsuspended reduction 

in grade in combination with forfeitures of pay only when the maximum exercise 

of NJP authority is warranted (e.g., repeat offender, most serious offenses, past 

rehabilitative efforts have failed, or recalcitrant offender). This general policy 

does not preclude such punishment where warranted in the sound exercise of 

judgment by the commander imposing punishment.

- If a change in commander occurs after imposition of punishment but before the 

appeal decision has been made, inform the member in writing of the identity the 

new command and obtain acknowledgment of this change from the member

Punishment Limitations

- General Limitations: Punishment limitations based upon the commander’s grade 

and the member’s grade are summarized in AFI 51-202, Tables 3.1 and 3.2, and on 

page 3 of the AF IMT 3070

- Specific Punishment Limitations: There are limitations on the combination of certain 

punishments:

-- Restriction to Limits and Extra Duties: If restriction and extra duties are combined, 

they must run concurrently (i.e., at the same time) and must not exceed the maximum time imposable for extra duties (45 days when field grade or general officers 

impose punishment; 14 days when company grade officers impose punishment)

-- Arrest in Quarters: For officers only, and cannot be combined with restriction

-- Forfeiture of Pay: Unless the commander otherwise specifies, unsuspended 

forfeitures of pay take effect on the date the commander imposes punishment
80 The Military Commander and the Law

-- Reductions in Grade: Unless the commander otherwise specifies, unsuspended 

reductions in grade take effect on the date the commander imposes punishment. 

Suspension of a punishment takes effect on the imposition date.

Appeals

- Members are entitled to appeal nonjudicial punishment to the commander who 

imposed the original punishment, and then to the next superior authority in the 

commander’s chain of command

-- Scope of Appeal: The member may appeal the guilty finding, the punishment, or 

both

--- A Reserve member is not required to make this appeal election in Title 10 

status or in person

-- Timeline for Appeal: 5 calendar days after member notification of punishment. 

Commanders may grant extensions for good cause shown (written requests only).

-- Submission of Matters: Members must submit all evidence supporting an appeal 

to the commander who imposed the original punishment

- Final Appeal—Superior Commander: After considering any new matters submitted 

by the member, the imposing commander may deny all relief, grant partial relief, or 

grant all relief requested by the member. If the imposing commander does not grant 

all the requested relief, he or she must forward the appeal to the appellate authority through the servicing SJA. If the imposing commander is a section commander 

of a squadron, the next superior authority is the squadron commander’s superior 

commander.

-- Final action on Appeal: The appellate authority may deny all relief, grant partial 

relief, or grant all relief requested by the member. The appellate authority’s decision is final.

-- No Stay on Previously Approved Punishments: Punishments are not stayed during the appeal process, i.e., the punishment will run until overturned on appeal 

(exception: any unexecuted punishment involving restraint or extra duties will be 

delayed until after appeal if the member requests such a delay and the appellate 

authority has not already decided the case within 5 days)
CHAPTER THREE Nonjudicial Punishment Under Article 15, UCMJ 81

Specific Rules Involving NJP for Reserve Service Members

- Jurisdiction over Offenses by Reservists: A reserve commander MUST be in Title 10 

status to offer NJP and sign AF IMT 3070 and the Reserve member MUST be in Title 

10 status when served the AF IMT 3070

- Involuntary Recall of Reservists for Imposition of NJP: A reserve member generally 

cannot be involuntarily ordered to a duty status solely for purposes of initiating or 

completing NJP actions. However, Article 2, UCMJ, does permit a MAJCOM commander or equivalent to grant waivers in appropriate cases.

- NJP Authority—Traditional Reservists (CAT A): Air Reserve Component (ARC) unit 

commanders have UCMJ authority over reserve members assigned or attached to 

their respective units, even if the Reserve member is deployed

-- Concurrent Authority Over Traditional Reservists: Active Duty (AD) commanders 

of Reserve members have concurrent UCMJ authority over all Reserve members 

attached to their respective units

-- Commanders of TDY or deployed Traditional Reservist MUST coordinate with 

the Reserve member’s parent organization commander prior to NJP imposition

- NJP Authority—Individual Mobilization Augmentees (IMAs) (CAT B): The Readiness 

Group (RMG) commander has UCMJ authority over all IMA reservists attached or 

assigned to the RMG

-- Concurrent Authority over IMAs: Active duty commanders have concurrent UCMJ 

authority over IMA reservists attached to their unit for reserve duty, for temporary 

duty, or for deployment

- Withholding of NJP Authority: Authority to issue NJP on Reserve commissioned 

officers is withheld from all Reserve commanders, except those who are general 

officers or who exercise general court-martial convening authority and their principal 

assistants to whom Article 15 power has been delegated

- Prompt Action Required: Commanders must take prompt action to offer NJP to 

Reserve service members as soon as practicable after an NJP worthy offense is 

discovered

-- Traditional Reservists: NJP should generally be offered no later than the next 

Unit Training Assembly (UTA) after the offense is discovered or the investigation 

is completed
82 The Military Commander and the Law

-- IMA Reservists: NJP should be offered as soon as possible following discovery of 

the allegation

-- Failure to meet this suggested processing goal DOES NOT preclude commanders 

from initiating NJP proceedings at a later date

- Extended Response Time for Reservists: A reserve member not in Title 10 status for at 

least 72 hours after being offered NJP should be required to respond at the start of 

the next military duty day (i.e., UTA), provided at least 72 hours have passed since the 

NJP was offered. A failure to respond within 30 calendar days is considered a waiver 

of his/her right to respond, unless an extension is granted.

- Punishment Limitations for Reservists: There are limitations on the punishment that 

can be imposed on Reserve members

-- Restrictions on Liberty: Because a reserve member cannot be required to arrive 

before, or remain after, a UTA to serve NJP, arrest in quarters, restriction to base 

or extra duties should not be imposed unless the Reserve member is expected 

to serve on extended active duty (EAD) or perform an annual tour (AT)

-- No Limitations on UTAs: Barring a Reserve member from participating in UTAs is 

not an authorized punishment under Article 15, UCMJ

-- Forfeiture of Pay: Since Reserve members not on EAD typically work only 2 days of 

military duty per month, the forfeiture provision of the Article 15 does not carry 

the same disciplinary weight for Reserve members as for active duty members. If 

the member does not perform any duty during the stated period of the sentence, 

no forfeiture collection will be made.

- Appeals: Reserve members not in Title 10 status for at least 5 days following receipt 

of punishment waive their appeal rights by failing to make an election within 30 

calendar days of that receipt

References

UCMJ Art. 15

Manual for Courts-Martial, United States, Part V (2012)

AFI 51-202, Nonjudicial Punishment (31 March 2015)

AF IMT 3070, Record of Nonjudicial Punishment Proceedings
CHAPTER THREE Nonjudicial Punishment Under Article 15, UCMJ 83

SUPPLEMENTARY NONJUDICIAL PUNISHMENT ACTIONS

Supplementary nonjudicial punishment (NJP) actions provide commanders with the 

flexibility to make adjustments based on the response of the NJP recipient. These supplementary actions include: (1) Suspension: postponement of the application of all or part of 

the punishment for a specific probationary period, conditioned upon good behavior; (2) 

Mitigation: lessening of punishment by quality or quantity; (3) Remission: cessation of the 

remainder of any unexecuted period of punishment; (4) Set Aside: full reinstatement of 

prior rights and privileges impacted by NJP; and (5) Vacation: reinstatement of previously 

suspended punishment in the event of misbehavior during the probationary period.

Initiating a Supplemental Action

- Supplementary NJP actions are accomplished on AF IMT 3212, Record of Supplementary Action under Article 15, and are filed with the original NJP action

- Initiation by Member: Post-punishment relief may be requested by members (use 

the sample format in AFI 51-202, attch. 6)

- Initiation by Commander: Either the original commander who imposed the NJP, or a 

successor commander, may initiate supplemental action

- Staff Judge Advocate (SJA) Consultation Required: Consult with the SJA prior to 

initiating, or acting upon, any supplemental action

Suspension

- Definition: Suspension postpones all or part of a punishment for a specific probationary period. A suspension can be used as part of both an original or supplemental 

action. In original actions, the commander can suspend punishment at the time of 

imposition thereby holding part or all of a punishment in reserve as a motivational 

tool for the NJP recipient.

- Standard: Suspension is generally appropriate for a first-time offender or where there 

are persuasive extenuating or mitigating circumstances

- Specific Rules for Suspension:

-- Suspension of punishment may not exceed 6 months from the date of the 

suspension

-- Commanders may, at any time, suspend any part or amount of the unexecuted 

punishment imposed
84 The Military Commander and the Law

--- An executed punishment of reduction in grade or forfeiture may be suspended if accomplished within 4 months of the punishment being imposed

--- When a reduction in grade is later suspended, the member’s original date of 

rank, held before the reduction, is reinstated for the purposes of promotion. 

However, the date of rank for the purposes of pay is the date of the document 

directing the suspension. The member is not entitled to back pay.

--- If a member is undergoing a suspended reduction in grade, the member is 

ineligible for promotion, including testing and consideration if already tested. 

They are also ineligible to reenlist, but may be eligible for an extension of 

enlistment.

Mitigation

- Definition: Mitigation is a reduction in either the quantity or quality of a punishment. 

The general nature of the mitigated punishment should remain the same as the 

original punishment.

- Standard: Mitigation is appropriate when the member’s subsequent good conduct 

merits a reduction in the punishment, or when the commander later determines the 

punishment imposed was disproportionate to the offense

- Specific Rules for Permissible Mitigated Punishments: With the exception of reduction 

in grade, only the unexecuted part or amount of the punishments can be mitigated

-- Reductions in Grade: A reduction in grade may be mitigated even after it has 

been executed

--- Reduction in grade may only be mitigated to forfeitures and may only be 

done up to 4 months after the date of execution

--- The mitigation date will become the offender’s date of rank for both promotion and pay purposes. The member will not be entitled to receive back pay.

-- Restriction to Limits/Extra Duties: Punishments involving loss of liberty, such as 

restriction to specified limits or extra duties may only be mitigated to less sever 

forms of loss of liberty

--- Loss of liberty punishments cannot be mitigated to forfeitures or reduction 

in grade
CHAPTER THREE Nonjudicial Punishment Under Article 15, UCMJ 85

--- Mitigated restraints on liberty (for example mitigating correctional custody 

to extra duties) cannot run for a longer period than the remaining amount 

of punishment that was originally imposed

Remission

- Definition: Remission is the cancellation of any unexecuted portion of a punishment

- Standard: Remission is appropriate when the member’s subsequent good conduct 

merits a reduction in the punishment, or when the commander later determines the 

punishment imposed was disproportionate to the offense

-- Commanders may remit punishments any time before the execution of the punishment is completed (e.g., 30 days have elapsed on 45 days of extra duty and 

the commander wants to end the punishment now—the commander remits the 

remaining 15 unexecuted days of extra duty)

-- An unsuspended reduction in rank is executed at imposition, so it can never be 

remitted

Set Aside

- Definition: Most sweeping form of supplemental action, permitting removal of punishments, whether executed or unexecuted. A set aside of all punishment voids the 

entire NJP action.

-- Any property, privileges, or rights, affected by the portion of the punishment set 

aside are restored to the member

-- Unlike suspension, mitigation, and remission, setting aside a punishment is not 

normally considered rehabilitative in nature and should not be used on a routine 

basis

- Standard: Commanders should exercise this discretionary authority only in the rare 

and unusual case where a question concerning the guilt of the member arises or 

where the best interests of the Air Force are served by clearing the member’s record

-- Time Limits: Punishments should be set aside within a reasonable time (4 months, 

except in unusual circumstances) after the punishment is originally imposed
86 The Military Commander and the Law

Vacation

- Definition: Imposing punishment that was previously suspended either at the time 

the original NJP was imposed or as part of supplementary NJP relief

- Standard: Imposed if a member violates either a condition of the suspension specified 

in writing by the commander in the NJP or any punitive article of the UCMJ

-- A new serious offense may be the basis for a vacation action AND additional 

NJP action

-- The new offense does not have to be serious enough to warrant imposition of 

NJP, nor does it have to be of the same nature as the original offense

-- Reserve members need not be subject to the UCMJ during the commission of an 

offense that serves as the basis for vacating suspended punishment

- SJA Consultation: Commanders must consult the servicing SJA before taking action 

to vacate suspended punishment

Procedure for Vacation Actions

- The commander must notify and advise the member of the intended vacation action 

by causing the member to be served with an AF IMT 366, Record of Proceedings of 

Vacation of Suspended Nonjudicial Punishment. (The reserve commander initiating 

the vacation action must be in Title 10 status when signing and serving the vacation 

action.) AF IMT 366 must contain the following:

-- A description of the basis for the vacation, such as misconduct (new offense 

which the commander suspects the member has committed) or what condition 

of the member’s suspension was violated

-- The fact that the commander is considering vacating the suspended punishment

-- The member’s rights during the vacation proceedings

- The base legal office will input the language describing the offense and other pertinent information concerning the suspended punishment on the AF IMT 366

- The member must receive the AF IMT 366 during the period of the suspension, at 

which point the suspension period is stayed
CHAPTER THREE Nonjudicial Punishment Under Article 15, UCMJ 87

Member’s Rights During Vacation Proceedings

- Unlike other supplemental actions, vacation action is detrimental to the member and 

therefore comes with due process protections similar to NJP, namely: (1) 3 duty days 

to respond; (2) right to consult counsel; (3) right to submit written matters; (4) right 

to request a personal appearance before the imposing commander

-- Reserve Members: A reserve member not in Title 10 status for at least 72 hours 

after being served the vacation action should be required to respond at the start 

of the next military duty day (i.e., Unit Training Assembly (UTA)), provided at least 

72 hours have passed since the vacation was served. A failure to respond within 

30 calendar days is considered a waiver of his/her right to respond, unless an 

extension is granted.

--- Failure to respond: If the member fails to respond within 3 duty days (30 days 

for a non-extended active duty (EAD) reserve member), the commander can 

continue by noting in item 3 of the AF IMT 366 “member failed to respond.” 

However, if the commander believes the failure to respond was out of the 

member’s control, the commander may not proceed with the vacation proceedings without good cause.

-- Reserve Commanders: The reserve commander and member must both be in 

Title 10 status at the time the member makes his/her election and during any 

personal appearance made by the reserve member

Commander’s Decision— Vacation Proceedings

- Following the commander’s consideration of the evidence, including any matters 

presented by the member, the commander (who must be in Title 10 status if he/she 

is a reserve commander) takes one of the following actions on the AF IMT 366:

-- Terminates the vacation proceedings because vacation of the suspended punishment is not appropriate or because the member did not violate the UCMJ or a 

condition of the suspension; or

-- Finds the member did violate the UCMJ or a condition of the suspension
88 The Military Commander and the Law

Effects of Vacation Action on Suspended Reductions

- If a suspension of a reduction in grade is “vacated,” the member’s date of rank, for 

the purposes of promotion, will be the date the commander imposed the original 

punishment

-- For the purposes of pay, however, the date of rank will be the day the suspension 

is vacated. The member will not be required to return any additional pay received 

while holding the higher rank.

References

UCMJ Art. 15

Manual for Courts-Martial, United States, Part V (2012)

AFI 51-202, Nonjudicial Punishment (31 March 2015)

AF IMT 3212, Record of Supplementary Action under Article 15

AF IMT 366, Record of Proceedings of Vacation of Suspended Nonjudicial Punishment
CHAPTER THREE Nonjudicial Punishment Under Article 15, UCMJ 89

QUALITY FORCE MANAGEMENT EFFECTS OF 

NONJUDICIAL PUNISHMENT

Commanders have a great deal of discretion concerning quality force management 

consequences related to nonjudicial punishment (NJP) actions. Generally speaking, 

there are three main possible follow-on force management ramifications of NJP action: 

(1) placement of the NJP in an unfavorable information file; (2) placement of the NJP 

in a Senior Non-Commissioned Officer (NCO) or Officer Selection Record; (3) follow-on 

“referral” enlisted or officer performance reports. The following guidance applies primarily 

to enlisted personnel. Please consult with the staff judge advocate (SJA) regarding the 

quality force management consequences of NJP actions on officers.

Enlisted Unfavorable Information File NJP Entries

- Mandatory Entries: Entry of an NJP into an Unfavorable Information File (UIF) becomes 

mandatory based upon either the status of the offender or the severity of the punishment imposed

-- Officers: All officer NJPs are mandatory UIF entries

-- Enlisted: UIF entry is required if any portion of the executed or suspended punishment will not be completed within 1 month

--- Post-punishment actions to suspend a previously imposed punishment must 

be filed in the member’s UIF, with the original NJP action, until the suspension 

period is completed

--- Actions to vacate a suspended punishment must be entered into the member’s UIF

- Discretionary Entries: All other NJPs are “discretionary” UIF entries at the election of 

the imposing commander

- Notice: Members are entitled to notice that the action will be entered into a UIF. Such 

notice is included on AF IMT 3070, Record of Nonjudicial Punishment Proceedings.

- UIF Retention Period: NJP actions entered into a UIF must remain there until all punishment is completed or remitted, including any periods of suspension

-- Mandatory UIF: If the commander takes no action to remove a mandatory UIF 

NJP action, it will remain in the UIF for 2 years
90 The Military Commander and the Law

-- Discretionary UIF: If the commander takes no action to remove a mandatory UIF 

NJP action, it will remain in the UIF for 1 year

- Early Removal of NJP from UIF: The commander may remove the NJP action and 

related documents from the member’s UIF any time after the punishment or suspended punishment is completed (if removal is clearly warranted), or if the Article 

15 is set aside

Related Administrative Actions

- In addition to NJP, commanders may take other appropriate administrative actions, 

including but are not limited to:

-- Control roster action

-- Entry of the member into counseling or rehabilitation programs, such as the 

Alcohol and Drug Abuse Prevention and Treatment Program (ADAPT)

-- Enlisted Performance Report (EPR) comments concerning the member’s underlying misconduct

-- Administrative discharge

-- Removal from the personnel reliability program, withholding a security clearance, 

or withholding access to sensitive materials; and

-- NJP may also adversely affect promotion, reenlistment, and assignment eligibility

Officer Unfavorable Information Files NJP Entries

- Any record of an NJP action for officers is a mandatory UIF entry

- An NJP is permanently retained in the officer’s Master Personnel Record Group (Correspondence and Miscellaneous Group) unless set aside in its entirety, or ordered 

removed by the Air Force Board of Corrections for Military Records (AFBCMR)

- Retention Period: Officer NJP actions are retained in a UIF for 2 years

-- Early removal is only permissible after completion of all punishment. Only the 

wing commander or issuing authority (whomever is higher in rank) is authorized 

to remove an officer NJP from a UIF
CHAPTER THREE Nonjudicial Punishment Under Article 15, UCMJ 91

- Referral OPR/PRF Consideration: Commanders should also consider whether comments should be made in the next OPR and/or promotion recommendation form 

(PRF). Seek the advice of the SJA for assistance in determining when comments may 

be appropriate.

-- Sex related offenses punished by NJP require a mandatory notation in the officer’s 

next OPR and/or PRF

Officer and Senior NCO Promotion Selection Records

- Commanders imposing NJP upon officers and senior NCOs must also decide whether 

to include the Article 15 in the member’s promotion selection record

- Selection record decisions are recorded on AF IMT 3070B for Senior NCOs and on AF 

IMT 3070C for officers

- Reviewing Authority: The imposing commander’s decision to file an NJP in a selection record is subject to review by the next senior Air Force commander, unless the 

General Court-Martial Convening Authority (GCMCA) imposed the punishment

- Senior NCO Selection Record Retention Period: 2 years or until after the member 

meets one senior NCO evaluation board

-- Early removal is authorized for senior NCOs only if approved by the current 

commander

- Officer Selection Record Retention Period: For lieutenant colonels and below, NJPs 

remain in the officer’s selection record until after the officer meets one “in the promotion zone” (IPZ) or “above the promotion zone” (APZ) promotion board and an appeal 

for removal has been approved

-- Officers may not request early removal of the NJP from their selection record. 

Only the imposing authority may request early removal of an NJP from a selection 

record. Early is only permitted as an exception to policy, and should only be 

approved only in rare cases.
92 The Military Commander and the Law

References

UCMJ Art. 15 

AFI 36-2406, Officer and Enlisted Evaluation Systems (2 January 2013), with corrective actions 

applied 5 April 2013, incorporating through Change 3, 30 November 2015

AFI 36-2608, Military Personnel Records System (26 October 2015)

AFI 36-2907, Unfavorable Information File (UIF) Program (26 November 2014)

AFI 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program (8 July 2014)

AFI 51-202, Nonjudicial Punishment (31 March 2015)

AF IMT 3070, Record of Nonjudicial Punishment Proceedings
93

Involuntary Separation of Enlisted Members: General Considerations................................94

Involuntary Separation of Enlisted Members: Reasons for Discharge ..................................98

Dual Action Processing of Administrative and Medical Discharges...................................107

Procedure to Involuntarily Separate Enlisted Members..........................................................109

Probation and Rehabilitation for Enlisted Members................................................................113

Officer Separations...............................................................................................................................117

Administrative Separation of Reservists.......................................................................................123

Loss of Veterans’ Benefits....................................................................................................................127

CHAPTER FOUR: ADMINISTRATIVE

4

SEPARATION FROM THE AIR FORCE
94 The Military Commander and the Law

INVOLUNTARY SEPARATION OF ENLISTED MEMBERS: 

GENERAL CONSIDERATIONS

Commanders and supervisors must identify enlisted members who show a likelihood 

for early separation and make reasonable efforts to help these members meet Air Force 

standards. Members who do not show potential for further service should be discharged. 

Commanders must consult the servicing staff judge advocate and military personnel 

flight before initiating the involuntary separation of a member.

General Preprocessing Considerations

- Before initiating discharge, a commander must consider all the factors that make the 

member subject to discharge, including:

-- The seriousness of circumstances that make the member subject to discharge 

and how the member’s retention might affect military discipline, good order, 

and morale

-- Whether the circumstances that are the basis for discharge action will continue 

or recur

-- The likelihood that the member will be disruptive or an undesirable influence in 

present or future duty assignments

-- The member’s ability to perform duties effectively in the present and in the future

-- The member’s potential for advancement and leadership

-- An evaluation of the member’s military record including, but not limited to:

--- Records of nonjudicial punishment

--- Records of counseling

--- Letters of reprimand or admonition

--- Records of conviction by courts-martial

--- Records of involvement with civilian authorities
CHAPTER FOUR Administrative Separation from the Air Force 95

--- Past contributions to the Air Force

--- Duty assignments and EPRs

--- Awards, decorations, and letters of commendation

-- The effectiveness of preprocessing rehabilitation, when required

- A commander should NOT use an administrative discharge as a substitute for disciplinary action

- Generally, the acts or conditions on which the discharge is based must have occurred 

in the current enlistment. The exceptions are:

-- Fraudulent enlistment, erroneous enlistment, or the interest of national security

-- Cases in which the act or condition occurred in the immediately preceding enlistment, the commander was not aware of the facts warranting discharge until after 

the member reenlisted, and there was no break in service

-- Cases in which the member is being separated for failure in the fitness program 

and at least one instance of unsatisfactory performance is in the current enlistment; then instances of unsatisfactory performance in the immediately preceding enlistment may support the basis for discharge

- Prior to processing a member for discharge for parenthood, conditions that interfere 

with military service, entry level performance and conduct, unsatisfactory performance, and minor disciplinary infractions or a pattern of misconduct commanders 

must give the member an opportunity to overcome deficiencies

-- Efforts to rehabilitate may include, but are not limited to, counselings, reprimands, control roster action, nonjudicial punishment under Article 15 of the 

UCMJ, change in duty assignment, demotion, additional training, and retraining

-- It is extremely important to properly document rehabilitative efforts and keep 

copies of these documents
96 The Military Commander and the Law

Special Preprocessing Considerations for Victims and Service Members with Post 

Traumatic Stress Disorder (PTSD)

- Sexual Assault Victims: Airmen who have made an unrestricted report of sexual 

assault require special processing procedures

-- The commander must notify the separation authority that the member has 

reported being a past victim of sexual assault and include in the recommendation for discharge memorandum sufficient information concerning the alleged 

assault and the member’s status

-- The member must be advised of the right to request review by the general 

court-martial convening authority (GCMCA) authority, if the Airman believes 

the recommendation for involuntary separation was initiated in retaliation for 

making the unrestricted report of sexual within the last 12 months as of the date 

of notification of discharge

- PTSD Service Members: All Airmen who are separating must receive a medical examination in accordance with AFI 36-3208, Administrative Separation of Airmen, paras. 

6.3 and 6.9.3. The medical examination must assess whether the effects of PTSD or 

traumatic brain injury (TBI) constitute matters in extenuation that relate to the basis 

for involuntary administrative separation if the Airman:

-- Is being administratively separated under a characterization other than Honorable; and

-- Was deployed overseas to a contingency operation during the previous 24 

months; and

-- Is diagnosed by a physician, clinical psychologist, or psychiatrist as experiencing 

PTSD or TBI, or reasonably alleges the influence of PTSD or TBI based on deployed 

service to a contingency operation during the previous 24 months; and

-- Is not being separated under a sentence of court-martial, or other proceeding 

conducted pursuant to the UCMJ
CHAPTER FOUR Administrative Separation from the Air Force 97

Characterizations of Service

- The service of a member administratively separated may be characterized as honorable, general (under honorable conditions), or under other than honorable conditions 

(UOTHC)

-- Honorable: Appropriate when the quality of the member’s service generally has 

met Air Force standards of acceptable conduct and performance of duty, or a 

member’s service is otherwise so meritorious that any other characterization 

would be inappropriate

-- General (under honorable conditions): Appropriate if a member’s service has 

been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of military record

-- UOTHC: Appropriate if based on a pattern of behavior or one or more acts or 

omissions constituting a significant departure from the conduct expected of 

Airmen. This characterization can be given only if the member is offered an 

administrative discharge board or if a discharge is unconditionally requested in 

lieu of trial by court-martial.

- A dishonorable discharge and a bad conduct discharge are punitive discharges and 

are authorized only as a result of a court-martial sentence

- If the sole basis for discharging an Airman with a UOTHC service characterization is 

a serious offense that resulted in conviction by a court-martial that did not adjudge 

a punitive discharge, then the Secretary of the Air Force (SecAF) must approve the 

service characterization (this includes a conviction at a summary court-martial)

- Separation without Service Characterization: Members in entry level status (the first 

180 days of active military service) will ordinarily receive an “entry level separation” 

without service characterization

References

AFI 36-2905, Fitness Program (21 October 2013), incorporating Change 1, 27 August 2015

AFI 36-3208, Administrative Separation of Airmen (9 July 2004), incorporating through Change 7, 

2 July 2013, including AFI36-3208_AFGM2016-01, 24 June 2016
98 The Military Commander and the Law

INVOLUNTARY SEPARATION OF ENLISTED MEMBERS: 

REASONS FOR DISCHARGE

Specific reasons for involuntarily separating enlisted members are in Chapter 5 of AFI 

36-3208, Administrative Separation of Airmen. Commanders must consult with the servicing staff judge advocate and military personnel flight prior to initiating the involuntary 

separation of a member. With a few exceptions, a commander is generally not required 

to initiate involuntary separation of a member just because a reason for discharge set 

out in AFI 36-3208 exists. The facts and circumstances are different in each case and 

must be considered on a case-by-case basis. An overview of the nine broad reasons for 

discharge follows below.

Mandatory Discharges

- A commander MUST initiate discharge processing or seek a waiver of the discharge 

if the reason for discharge is one of the following:

-- Fraudulent or erroneous enlistment

-- Civilian court conviction for an offense for which a punitive discharge and confinement for one year or more would be authorized under the UCMJ

-- Drug abuse

-- Sexual assault or sexual assault of a child

-- Failure in the fitness program: a commander must make a discharge or retention recommendation when a member remains in a poor fitness category for 

a continuous 12-month period or receives four poor fitness assessments in a 

24-month period

Convenience of the Government Discharges

- Discharge is appropriate when separation would serve the best interest of the Air 

Force and discharge for cause is not warranted. Such separations may be based on:

-- Parenthood, if the member fails to meet military obligations because of parental 

responsibilities

-- Insufficient retainability for required training, if the cost of retraining for a brief 

period of service may not warrant retention
CHAPTER FOUR Administrative Separation from the Air Force 99

-- Medical/Psychological conditions (not rising to the level of “disabilities” severe 

enough to warrant medical discharge via a Medical Evaluation Board (MEB)) that 

interfere with military service, which include:

--- Enuresis, sleepwalking, dyslexia, severe nightmares, Attention Deficit Hyperactivity Disorder (ADHD), stammering/stuttering, incapacitating fear of flying, 

air sickness, and claustrophobia. The condition must have an adverse effect 

on assignment or duty performance.

--- Mental Disorders:

---- Must be supported in writing by a report of evaluation by a psychiatrist 

or PhD-level clinical psychologist that confirms a diagnosis of a disorder 

contained in the current edition of the Diagnostic and Statistical Manual 

of Medical Disorders;

---- Must be documented in a report as so severe that the member’s ability 

to function in the military environment is significantly impaired; and

---- Must have an adverse effect on assignment or duty performance

--- Special processing is required for Airmen who are currently serving or who 

have served in an imminent danger pay area and have been diagnosed with 

a personality disorder that is the basis of the discharge

---- The diagnosis of a personality disorder must specifically address PTSD or 

other mental illness co-morbidity

---- Separation WILL NOT be initiated if there is a diagnosis of service-related 

PTSD, unless the Airman is subsequently found fit for duty under the 

disability evaluation system in accordance with AFI 36-3212, Physical 

Evaluation for Retention, Retirement, and Separation

---- The Air Force Surgeon General must review the diagnosis with supporting documentation prior to initiation of the separation

- Discharge for conditions that interfere with military service is not appropriate if the 

member’s record supports discharge for another reason, such as misconduct or 

unsatisfactory performance

- Service is characterized as entry level separation or honorable
100 The Military Commander and the Law

- Before recommending discharge, commanders must be sure:

-- Preprocessing rehabilitation requirements in AFI 36-3208, para. 5.2, have been 

met;

-- They have complied with all requirements of the specific AFI paragraph authorizing discharge; and

-- Circumstances do not warrant discharge for another reason

Defective Enlistments

- Enlistment of Minors: a person under 17 years of age is barred by law from enlisting

- Void Enlistments: the enlistment was not a voluntary act by a sane, sober person of 

age; or enlistee was a deserter from another service

- Erroneous Enlistment: the Air Force should not have accepted the enlistee, but the 

case does not involve fraud

- Fraudulent Entry: involved deliberate deception on the part of the enlistee

- A commander must initiate discharge or seek a waiver of discharge for erroneous 

enlistment or fraudulent entry

-- Erroneous enlistments and fraudulent entries for reasons of alienage cannot be 

waived

-- If the commander has knowledge of an erroneous enlistment or fraudulent 

entry and fails to act within a reasonable time, that failure to act may result in a 

constructive waiver of the commander’s ability to discharge the member

- Authorized characterizations of service and the approval authorities are listed in AFI 

36-3208, Table 5.4

- Members approved for discharge are not eligible for probation and rehabilitation 

(P&R)
CHAPTER FOUR Administrative Separation from the Air Force 101

Entry Level Performance or Conduct

- Enlisted members in entry level status should be discharged when unsatisfactory 

performance or conduct shows the member is not a productive member of the Air 

Force

- Discharge processing must start during the first 180 days of continuous active duty

- Eligibility for discharge based on entry level performance or conduct does not preclude separation for another reason

- Before processing a member for discharge for unsatisfactory entry level performance 

or conduct, a commander must ensure efforts to rehabilitate the member, allowing the member the opportunity to overcome deficiencies, have been made and 

documented

- Discharge is not formally characterized, but is described as entry level separation 

(ELS)

- Members approved for discharge for entry level performance or conduct are not 

eligible for P&R

Unsatisfactory Performance

- Members should be discharged when unsatisfactory performance or conduct shows 

they are not qualified for service in the Air Force

- Performance includes assigned duties, military training, bearing and behavior, as well 

as maintaining the high standards of personal behavior and conduct required of all 

military members at all times

- Unsatisfactory performance may be evidenced by any of the following:

-- Unsatisfactory duty performance, which may include:

--- Failure to properly perform assigned duties

--- A progressively downward trend in performance ratings

--- Failure to demonstrate the qualities of leadership required by the member’s 

grade
102 The Military Commander and the Law

-- Failure to maintain standards of dress and personal appearance, other than fitness standards, or military deportment

-- Failure to progress in military training required to be qualified for service with 

the Air Force or for the performance of primary duties

-- Irresponsibility in the management of personal finances

-- Unsanitary habits

-- Failure to meet fitness standards

- Before processing a member for discharge for unsatisfactory performance, a commander must ensure efforts to rehabilitate the member, allowing the member the 

opportunity to overcome deficiencies, have been made and documented

- Service is characterized as honorable or general

- Members approved for discharge should be considered for P&R

Failure in Drug or Alcohol Abuse Treatment

- Members are subject to discharge for failure in drug or alcohol abuse treatment if 

they:

-- Are in a program of rehabilitation for abuse of drugs or alcohol and fail to complete the program due to inability, refusal to participate, or unwillingness to 

cooperate; and

-- Lack the potential for continued military service or need long-term treatment 

and are transferred to a civilian medical facility for treatment

- Service is characterized as honorable, general, or entry level

- Members approved for discharge are eligible for P&R

Misconduct Discharges

- Unacceptable conduct adversely affects military duty and may be a proper basis for 

discharge
CHAPTER FOUR Administrative Separation from the Air Force 103

- Types of misconduct include:

-- Minor Disciplinary Infractions (AFI 36-3208, para. 5.49): Consists solely of infractions during the current enlistment resulting in letters of counseling, letters of 

admonition, letters of reprimand, and nonjudicial punishment actions

--- Before processing a member for discharge for misconduct consisting of minor 

disciplinary infractions, a commander must ensure efforts to rehabilitate the 

member, allowing the member the opportunity to overcome deficiencies, 

have been made and documented

--- Members approved for discharge are eligible for P&R

-- Pattern of Misconduct (AFI 36-3208, para. 5.50): Includes misconduct more serious 

than that consisting of minor disciplinary infractions and involving (1) discreditable involvement with military or civilian authorities, (2) conduct prejudicial to 

good order and discipline, (3) failure to support dependents, or (4) dishonorable 

failure to pay just debts

--- Before processing a member for discharge for misconduct consisting of a 

pattern of misconduct, a commander must ensure efforts to rehabilitate the 

member, allowing the member the opportunity to overcome deficiencies, 

have been made and documented

--- Members approved for discharge are eligible for P&R

-- Civilian Conviction (AFI 36-3208, para. 5.51): When the member is convicted, 

or there is a finding that amounts to a conviction, of an offense which would 

authorize a punitive discharge under the UCMJ or when the sentence by civilian 

authorities actually includes confinement for 6 months or more

--- A commander must initiate discharge or seek a waiver of the discharge when 

the civilian conviction involves an offense for which a punitive discharge 

and confinement for one year or more would be authorized under the UCMJ

--- It is general policy to withhold execution of discharge until the outcome of 

the appeal is known or the time for appeal has passed. If the appeal results 

in the conviction being set aside, the Airman may not be discharged due to 

civilian conviction.

--- An Airman whose home of record is in the continental United States (CONUS) 

may be discharged in absentia if he or she is in civil confinement in the 
104 The Military Commander and the Law

CONUS or has been release from confinement in the CONUS and is absent 

without authority

--- An Airman in a foreign penal institution may not be discharged until released 

from confinement and returned CONUS or higher authority (HQ AFMPC/

DPMARAS2) authorizes an exception

--- If the commander has knowledge of such a civilian conviction and fails to 

act within a reasonable time, that failure to act may result in a constructive 

waiver of the commander’s ability to discharge the member

--- Members approved for discharge are eligible for P&R

-- Commission of a Serious Offense (AFI 36-3208, para. 5.52): Includes offenses for 

which a punitive discharge would be authorized under the UCMJ

--- Airmen are subject to discharge for misconduct based on acts of aberrant 

sexual behavior or acts of sexual misconduct, which include offenses such 

as: indecent viewing, visual recording, or broadcasting; forcible pandering; 

indecent exposure

--- Airmen may be discharged for misconduct based on unauthorized absence 

continuing for 1 year or more

--- Airmen are subject to discharge for misconduct based on acts that constitute 

unprofessional relationships between recruiters and potential recruits during 

the recruiting process or between students and faculty or staff in training 

schools or professional military education setting

--- Members approved for discharge are eligible for P&R EXCEPT FOR cases of 

non-compliance with “safe sex” order

-- Drug Abuse (AFI 36-3208, para. 5.53): The illegal, wrongful, or improper use, possession, sale, transfer, or introduction onto a military installation of any drug

--- Commanders must act promptly when information indicates drug abuse and 

initiate discharge or seek a waiver of discharge processing

--- A member found to have abused drugs will be discharged unless the member meets all seven of the retention criteria in AFI 36-3208, para. 5.55.2.1. 

The member has the burden of proving he or she meets all seven retention 

criteria.
CHAPTER FOUR Administrative Separation from the Air Force 105

--- Members approved for discharge are not eligible for P&R

-- Sexual Assault (AFI 36-3208, para. 5.54): Includes rape, sexual assault, aggravated 

sexual contact, abusive sexual contact, forcible sodomy, or attempts to commit 

these offenses. Sexual assault of a child includes rape of a child, sexual assault of 

a child, and sexual abuse of a child.

--- Commanders must act promptly when they have information indicating a 

member is subject to discharge for sexual assault or sexual assault of a child. 

They evaluate the specific circumstances of the offense, the member’s record 

and potential for future service, and take prompt action to initiate discharge 

or seek waiver of discharge processing.

--- A member found to have committed sexual assault or sexual assault of a child 

will be discharged unless the member meets all six the retention criteria in 

AFI 36-3208, para. 5.55.3.2. The member has the burden of proving he or she 

meets all six retention criteria.

--- Members approved for discharge are not eligible for P&R

- Characterization of Misconduct Discharge: Usually, the characterization for misconduct cases under AFI 36-3208, paras. 5.50, 5.51, 5.52, and 5.54 should be under other 

than honorable conditions (UOTHC), but characterization may be honorable, general, 

or entry level separation in appropriate cases

-- The general court-martial convening authority (GCMCA), usually the numbered 

air force (NAF) commander, will approve separation for misconduct with a service 

characterization of honorable or UOTHC

Discharge in the Interest of National Security

- A member whose retention is clearly inconsistent with the interest of national security may be discharged

- Discharge may only be initiated after criteria in AFI 36-3208, paras. 5.57.1 and 5.57.2 

have been met

- Discharge may be characterized as entry level, honorable, general, or UOTHC

- Members approved for discharge are not eligible for P&R
106 The Military Commander and the Law

Failure in the Fitness Program

- A member who does not meet fitness standards as set out in AFI 36-2905, Fitness 

Program, may be discharged when the failure is the result of a cause in the member’s 

control

- The required medical examination prior to discharge must document that there 

is not a medical condition that would preclude the member from meeting fitness 

program standards

- Characterization of service is restricted to honorable if failure in the program is the 

sole reason for discharge

- Members approved for discharge should be considered for P&R

Joint Processing

- In some cases, it may be preferable to cite two or more reasons as the basis for the 

discharge recommendation if the member’s record justifies more than one basis for 

discharge

-- If one of the reasons cited in the letter of notification as the basis for discharge 

entitled the member to a board hearing, then a hearing must be conducted

-- For determining service characterization, apply the guidance for the basis for 

discharge that allows the most latitude

References

AFI 36-2905, Fitness Program (21 October 2013), incorporating Change 1, 27 August 2015

AFI 36-3208, Administrative Separation of Airmen (9 July 2004), incorporating through Change 7, 

2 July 2013, including AFI36-3208_AFGM2016-01, 24 June 2016

AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation (2 February 2006), 

incorporating through Change 2, 27 November 2009
CHAPTER FOUR Administrative Separation from the Air Force 107

DUAL ACTION PROCESSING OF ADMINISTRATIVE 

AND MEDICAL DISCHARGES

“Dual action processing” refers to the simultaneous processing of an administrative and 

a medical discharge package. Commanders should not abandon pursuing an administrative discharge (particularly misconduct based administrative discharges) solely because 

a member is also undergoing processing for a medical discharge. Instead, commanders 

should press on with the administrative discharge while the medical discharge process 

is ongoing. Ultimately, if both discharges are warranted (administrative and medical), 

AFPC will decide which one to approve.

- Dual action processing involves referral of separation action to AFPC and is required 

when an airman subject to discharge is also eligible to apply for retirement (20 years 

or more active service) or is eligible for disability separation or disability retirement

-- Service Retirement Eligibility: Airmen who are qualified for retirement may be 

permitted to retire in lieu of involuntary separation

--- Airmen who are retirement eligible must be notified at the time discharge 

starts of the chance to apply for retirement

-- Disability Separation or Retirement: When the required medical examination 

shows that the airman is not qualified for worldwide duty, refer to Tables 6.13 and 

6.14 of AFI 36-3208, Administrative Separation of Airmen, for processing guidelines

--- When an Airman is determined to not be worldwide qualified during a medical examination, a significant delay in the processing of the discharge is likely 

to occur

--- Additional medical evaluations and a determination as to whether the Airman qualified for disability separation or disability retirement must be made 

prior to the Airman being involuntarily separated

--- The involuntary separation may continue to process, but the discharge may 

not be executed until all medical evaluation boards are completed and the 

member is determined to be fit for duty
108 The Military Commander and the Law

References

AFI 36-3208, Administrative Separation of Airmen (9 July 2004), incorporating through Change 7, 

2 July 2013, including AFI36-3208_AFGM2016-01, 24 June 2016

AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation (2 February 2006), 

incorporating through Change 2, 27 November 2009
CHAPTER FOUR Administrative Separation from the Air Force 109

PROCEDURE TO INVOLUNTARILY SEPARATE 

ENLISTED MEMBERS

Enlisted members may be involuntarily separated through two different processes: (1) 

notification procedures (applicable to Airmen E-4 and below with less than 6 years of 

service), and (2) board hearing procedures (applicable to Airmen E-5 and above or in 

any case when the commander is pursuing an Under Other Than Honorable Conditions 

(UOTHC) service characterization). Most cases are processed using notification procedures. Before initiating involuntary separation of a member, commanders must consult 

with the servicing staff judge advocate (SJA) and military personnel flight.

Preprocessing Procedures

- The type of discharge processing a member is entitled to depends upon: (1) the rank 

of the member; (2) years of service of the member; and (3) the characterization of 

service pursued by the commander concerned

- Medical Examination: Before the member may be discharged, a medical examination 

must document:

-- Any medical aspects pertaining to the reason for discharge; and

-- That the member is or is not medically qualified for worldwide service and 

separation

--- A member determined to not be qualified for worldwide service and separation may also be dual processed for separation under AFI 36-3212, Physical 

Evaluation for Retention, Retirement, and Separation

- Victims of Sexual Assault: If the member is a victim of sexual assault who made an 

unrestricted report, commanders must:

-- Notify the separation authority that the discharge proceeding involves a victim 

of sexual assault

-- Provide sufficient information concerning the alleged assault and respondent’s 

status to ensure a full and fair consideration of the victim’s military service and 

particular situation

-- Advise the Airman of the right to request review by the general court-martial 

convening authority (GCMCA) if the Airman believes the recommendation for 

involuntary separation was initiated in retaliation for having made the unrestricted report within the last 12 months
110 The Military Commander and the Law

- Completion of Enlisted Performance Report (EPR)/Letter of Evaluation (LOE): An EPR 

or LOE must be generated for discharges based on parenthood, conditions that interfere with military service, unsatisfactory performance, or failure in the fitness program

-- The EPR must be completed if the airman has not had an EPR closing in the 90 

days before the day discharge action starts

Notification Procedures

- If there is sufficient documentation/evidence supporting a basis for discharge, the 

commander serves a notification memorandum on the member (AFI 36-3208, Administrative Separation of Airmen, Fig. 6.1 or 6.2)

- After receiving the notification memorandum, the member has 3 duty days to prepare a response (AFI 36-3208, Fig. 6.4)

- The commander considers the member’s response, if any, and if the commander 

still recommends discharge, the commander signs a recommendation for discharge 

to the special court-martial convening authority (SPCMCA), who is usually the wing 

commander (AFI 36-3208, Fig. 6.5)

- The servicing SJA prepares a legal review of the package assessing the four issues 

at stake in enlisted administrative discharges: (1) is there a basis for discharge (AFI 

36-3208, Ch. 5); (2) should the member be discharged; (3) if so, what should the 

characterization of service be; and (4) is probation and rehabilitation available and 

appropriate?

- SPCMCA reviews the package and the SJA’s legal review

-- If the SPCMCA is also the separation authority, the SPCMCA determines:

--- (1) If there is a basis for discharge;

--- (2) If the member should be discharged;

--- (3) If the member should be discharged, how to characterize the member’s 

service; and

--- (4) Whether to offer Probation & Rehabilitation (P&R) (if available) if the member should be discharged
CHAPTER FOUR Administrative Separation from the Air Force 111

-- If the SPCMCA is not the separation authority, the SPCMCA will forward the package to the GCMCA, who is usually the numbered air force (NAF) commander, with 

a recommendation concerning the above four questions

Board Entitlement

- A member recommended for discharge must be offered a hearing by an administrative discharge board if one of the following applies:

-- The member is a non-commissioned officer at the time discharge processing 

starts

-- The member has 6 years or more total active and inactive service, including 

delayed enlistment time, at the time discharge processing starts

-- The commander recommends a UOTHC characterization

-- Discharge in the interest of national security is recommended (ensure appropriate clearance to proceed)

Board Hearing Procedures

- After receiving the notification memorandum, the member has 7 duty days to:

-- Request a board hearing or unconditionally waive his/her right to a board hearing 

(AFI 36-3208, Fig. 6.8); or

-- Waive the board hearing contingent upon receiving a specific type of discharge, 

which is called a conditional waiver (AFI 36-3208, Fig. 6.9)

- The commander considers the member’s response, if any, and if the commander 

still recommends discharge, he or she signs a recommendation for discharge to the 

SPCMCA (AFI 36-3208, Fig. 6.5)

- In cases where the member requests a board hearing, the SPCMCA reviews the recommendation for discharge and either sends the file back to the unit for further action 

(normally to withdraw the action or reinitiate the action using different grounds or 

evidence) or convenes a discharge board
112 The Military Commander and the Law

- The administrative board convenes, considers all the evidence, and makes:

-- A separate finding of fact on each allegation set out in the notification memorandum. The board’s finding of fact will determine whether a basis for discharge exists.

-- A recommendation to discharge or retain

-- A recommended characterization of service if the board recommends discharge

-- A recommendation concerning P&R (if member is eligible) if the board recommends discharge

- The servicing SJA prepares a legal review of the package and forwards the package 

to the SPCMCA

- The SPCMCA takes final action if referral to the GCMCA is not required or forwards 

the package to the GCMCA if referral to the GCMCA is required

- Lengthy Service Consideration: Members with more than 16 but less than 20 years 

of service are entitled to special probation consideration upon request and may not 

be separated before forwarding to HQ AFMPC/DPMARS2 for review

References

AFI 36-3208, Administrative Separation of Airmen (9 July 2004), incorporating through Change 7, 

2 July 2013, including AFI36-3208_AFGM2016-01, 24 June 2016

AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation (2 February 2006), 

incorporating through Change 2, 28 November 2009 

AFI 90-6001, Sexual Assault Prevention and Response (SAPR) Program (21 May 2015)

AFPAM 36-3210, Procedural Guide for Enlisted Administrative Discharge Boards (1 November 

1995), incorporating through Change 3, 20 October 2011
CHAPTER FOUR Administrative Separation from the Air Force 113

PROBATION AND REHABILITATION FOR 

ENLISTED MEMBERS

The Air Force program of probation and rehabilitation (P&R) allows the Air Force to retain 

a trained resource while allowing enlisted members another opportunity to complete 

their service honorably. P&R is a conditional suspension of an approved administrative 

discharge for cause. In deserving cases, it lets a member prove he or she is able to meet 

Air Force standards.

P&R Considerations

- Only the discharge authority can suspend the execution of a discharge for P&R

- Members who have completed at least 16 but less than 20 years of active service are 

entitled to special consideration upon their request and their cases are forwarded to 

HQ AFMPC/ DPMARS2 for review concerning probation

- P&R is appropriate for members:

-- Who demonstrate a potential to serve satisfactorily

-- Who have the capacity to be rehabilitated for continued military service or 

completion of the current enlistment

-- Whose retention on a probationary status is consistent with the maintenance of 

good order and discipline

Who is Eligible

- Members are NOT eligible for P&R if the reason for discharge is one of the following:

-- Failure to comply with preventive medicine counseling (safe sex order) by a 

member with human immunodeficiency virus (HIV)

-- Fraudulent entry into the service

-- Entry level performance or conduct

-- In the interest of national security

-- Drug abuse
114 The Military Commander and the Law

-- In lieu of trial by court-martial

-- Sexual assault or sexual assault of a child

- Members must be considered for P&R if the reason for discharge is unsatisfactory 

performance or misconduct (except failure to comply with preventive medicine 

counseling by a member with HIV and drug abuse):

-- The case file must show the initiating commander, board members if a hearing 

is involved, and separation authority considered P&R;

-- If the initiating commander does not recommend P&R, he or she must give the 

reason for not recommending P&R; and

-- If the initiating commander recommended P&R and the separation authority 

disapproved that recommendation, the separation authority must state the 

reason for his/ her decision

P&R Procedures

- Suspending the execution of an approved discharge is contingent on successful 

completion of rehabilitation

-- The separation authority sets a specific period of rehabilitation, which is not less 

than 6 months or not more than 12 months

-- The probationary period is usually served in the current unit of assignment, but 

reassignment to another local unit or within the MAJCOM may be authorized if 

warranted by the circumstances of the case

- If the decision is made to offer a member P&R, the commander must:

-- Give the member information about the P&R program (AFI 36-3208, Administrative Separation of Airmen, Fig. 7.2)

-- Counsel the member, emphasizing points listed in AFI 36-3208, para. 7.7.2

-- Find out whether the member has enough retainability to complete P&R, and if 

not, try to get a voluntary request for extension of enlistment for the minimum 

time required

-- Require members who accept P&R to sign statements of understanding and 

acceptance of the terms of probation
CHAPTER FOUR Administrative Separation from the Air Force 115

-- Ensure the terms of probation are set out in a letter from the separation authority 

and countersign the letter (AFI 36-3208, Fig. 7.1)

-- Require members who refuse P&R or fail to satisfy the retention requirements 

to sign a statement:

--- Acknowledging understanding of the rehabilitation privilege;

--- Giving the date the commander counseled the member; and

--- Acknowledging understanding of the effects of refusal to accept P&R

What Happens During P&R

- The commander is the primary judge of the member’s performance

-- Commanders are not required to set up a special rehabilitation program because 

the member is expected to perform duties appropriate to his/her grade, skill 

level, and experience

-- An enlisted performance report (EPR) is prepared every 90 days

-- Promotion consideration is according to AFI 36-2502, Airman Promotion/Demotion Programs

-- Members are not selected for formal training while in P&R

-- A commander usually should not place a member in P&R on the control roster, 

and the commander should consider removing the member from the control 

roster if the member is on it when placed in P&R

-- Reenlistment consideration is according to AFI 36-2606, Reenlistment in the United 

States Air Force

Completing P&R

- If a member successfully completes P&R:

-- The approved discharge is automatically and permanently canceled on the date 

the suspension expires

-- Separation at expiration of term of service (ETS) will result in an honorable service 

characterization
116 The Military Commander and the Law

-- Future failure to maintain standards may be the basis for new discharge 

proceedings

-- Eligibility for reenlistment will be according to AFI 36-2606 and none of the reasons for recommending discharge that existed before P&R began may be used 

as a basis for denial of reenlistment

Other Command Options

- Commanders have other options during P&R, including:

-- Canceling the probation in whole or in part where member’s good conduct 

clearly shows goals of P&R have been met

-- Extending the probationary period where member has made progress but the 

commander is not sure rehabilitation is complete. The original probationary 

period and the extension together must not exceed 1 year, and the Airman must 

consent to the extension.

Terminating P&R

- If a decision is made to initiate vacation (termination) of the P&R, the commander 

notifies the member by a letter, which gives:

-- The reason for the action

-- The name, address, and phone number of military legal counsel (often the area 

defense counsel (ADC))

-- Instruction that the member may secure civilian counsel at his own expense

-- Instruction to reply within 7 workdays (rebuttal or waiver of right to rebut)

References

AFI 36-2502, Airman Promotion/Demotion Programs (12 December 2014), incorporating Change 1, 

27 August 2015

AFI 36-2606, Reenlistment in the United States Air Force (9 May 2011), incorporating Change 1, 

29 August 2012

AFI 36-3208, Administrative Separation of Airmen (9 July 2004), incorporating through Change 7, 

2 July 2013, including AFI36-3208_AFGM2016-01, 24 June 2016
CHAPTER FOUR Administrative Separation from the Air Force 117

OFFICER SEPARATIONS

Officer separations operate similarly to enlisted separations. However, certain key differences exist. Most of the differences revolve around definitions, terminology, and authorities for officer separations. Unlike enlisted separations, the Secretary of the Air Force 

(SecAF) is the approval authority for all “for cause” commissioned officer administrative 

discharges.

Definitions

- Non-probationary Officer:

-- Regular officer with 5 or more years of active commissioned service as determined by the officer’s total active federal commissioned service date; or

-- Reserve officer with 5 or more years of commissioned service (inactive or active) 

as determined by the officer’s total federal commissioned service date

- Probationary Officer:

-- Regular officer who has completed less than five years of active commissioned 

service as determined by the officer’s total active federal commissioned service 

date; or

-- Reserve officer who has completed less than five years of commissioned service 

(inactive or active) as determined by the officer’s total federal commissioned 

service date

Voluntary Separation

- Officers may apply for voluntary separation prior to expiration of term of service 

under AFI 36-3207, Separating Commissioned Officers, Ch. 2, for a variety of reasons, 

which include:

-- Completion of active duty service commitment (ADSC)

-- Hardship

-- Pregnancy

-- Conscientious objector status
118 The Military Commander and the Law

-- Medal of Honor recipient

-- Other miscellaneous reasons

- Voluntary separations are subject to approval by the SecAF. The SecAF or designee 

may disapprove an application if, among other reasons, the officer:

-- Has had charges preferred or is under investigation

-- Remains absent without leave or absent in the hands of civil authorities

-- Defaulted with respect to public property or funds

-- Has been sentenced by a court-martial to dismissal

-- Is being considered for involuntary administrative discharge proceedings

-- Submits an application during war, when war is imminent, or during an emergency declared by the President or Congress

-- Has an ADSC for advanced educational assistance, government-funded education or training programs, special pay, or bonus pay (restriction applies even 

when the reason for separation is pregnancy)

Involuntary Separations not “For Cause”

- Officers may be separated involuntarily under AFI 36-3207, Ch. 3, sec. 3B, for various 

reasons that are not for cause

- Many involuntary separations are required by law, e.g., reserve officers who reach age 

limit, those non-selected for promotion, and officers who have reached maximum 

years of commissioned service or service in grade

- Other involuntary separations include loss of ecclesiastical endorsement; failure to 

complete or pass medical training, nursing examinations, or nursing intern programs; 

and officers in health care fields who do not have required licenses

- Only an honorable characterization is authorized for involuntary separations that 

are not for cause
CHAPTER FOUR Administrative Separation from the Air Force 119

Involuntary Separations “For Cause”

- Grounds for discharge for cause are found in AFI 36-3206, Administrative Discharge 

Procedures for Commissioned Officers, Ch. 2 (substandard performance of duty) and 

Ch. 3 (misconduct, moral or professional dereliction, or in the interest of national 

security)

- Substandard Performance of Duty:

-- Only an honorable or general (under honorable conditions) characterization. 

Includes broad categories subjecting an officer to separation:

--- Failure to show acceptable qualities of leadership or proficiency

--- Failure to achieve acceptable standards of proficiency required of an officer 

in his/her grade

--- Failure to discharge duties equal to his/her grade and experience

--- Substandard performance of duty resulting in an unacceptable record of 

effectiveness

--- A record of marginal service over an extended time as shown by performance 

reports covering two or more jobs and prepared by at least two different 

supervisors

--- Mental disorders that interfere with the officer’s performance of duty and do 

not fall within the purview of the medical discharge process

--- Apathy or defective attitude

--- Failure in the fitness program as specified in AFI 36-2905, Fitness Program

--- Failure to conform to prescribed standards of dress, physical fitness, or personal appearance. For cause separation under AFI 36-3206, Ch. 3, is appropriate if failure is deliberate.

--- Inability to perform duties because of family care responsibilities

--- Failure to maintain satisfactory progress while in an active status student 

officer program
120 The Military Commander and the Law

-- Before discharging an officer under this chapter, there should be a documented 

history of problems and documented efforts to correct the officer’s conduct

-- If an officer is being separated for reasons under this chapter and received education assistance, special pay, or bonus money, the officer is subject to recoupment

- Misconduct, Moral or Professional Dereliction, or in the Interest of National Security:

-- When officers engage in some form of misconduct, discharge under this chapter 

is often the most appropriate basis

-- Although not necessarily considered misconduct, discharges for fear of flying for 

rated officers fall under this chapter

-- Some other specific grounds for discharge, besides fear of flying for rated officers, 

include:

--- Having human immunodeficiency virus (HIV) and not complying with lawfully ordered preventive medicine procedures (i.e., safe sex order)

--- Failure to meet financial obligations

--- Intentional or discreditable mismanagement of personal affairs

--- Drug abuse, which is defined as the illegal, wrongful, or improper use, possession, sale, transfer, or introduction onto a military installation of any drug

--- Serious or recurring misconduct punishable by civilian or military authorities

--- Intentional neglect or intentional failure to either perform assigned duties 

or complete required training

--- Misconduct resulting in the loss of professional status necessary to perform 

duties

--- Intentionally misrepresenting or omitting facts concerning official matters

--- Sexual assault or sexual assault of a child

--- Sexual perversion, including aberrant sexual behavior, acts of sexual misconduct, or any indecent viewing, visual recording or broadcasting, forcible 

pandering, indecent exposure
CHAPTER FOUR Administrative Separation from the Air Force 121

--- Sexual deviation, including transvestitism, exhibitionism, voyeurism, and 

others as defined in the Diagnostic and Statistical Manual of Mental Disorders

--- Retention is not clearly consistent with interests of national security

--- Sentence by a court-martial to a period of confinement for more than 6 

months and not sentenced to a dismissal

-- The service of officers separated under this chapter may be characterized as 

under other than honorable conditions (UOTHC). The exceptions to this are drug 

use revealed as a result of self-identification or commander-directed urinalysis.

-- If an officer is being separated for reasons under this chapter and received education assistance, special pay, or bonus money, the officer is subject to recoupment

Discharge Procedures under AFI 36-3206

- Unit commander must evaluate the information and consult with the servicing staff 

judge advocate

- If appropriate, the unit commander recommends discharge to the show cause 

authority (SCA), who is usually the wing commander if he or she is a general officer, 

or the general court-martial convening authority, usually the numbered air force 

(NAF) commander, for wings not commanded by a general officer

- If appropriate, the SCA initiates discharge action by signing a letter to the officer 

notifying him or her of the discharge action

- Within 10 calendar days of receipt of the letter of notification, the officer submits 

evidence in response, applies for voluntary retirement (if eligible), tenders a resignation, or requests a delay to respond

- If the SCA determines no action is warranted, the action is terminated

- If the SCA determines discharge action is warranted, the type of processing that 

occurs depends on the officer’s status and the characterization recommended

-- Not Board Entitled: If the officer is probationary, and the case does not involve 

a recommendation for a UOTHC service characterization, the SCA notifies the 

officer that the case will be reviewed by the Air Force Personnel Board (AFPB). 

The officer is not entitled to appear in front of or present witness testimony to 

the AFPB.
122 The Military Commander and the Law

-- Board Entitled: If the officer is non-probationary, or the officer is probationary 

and a UOTHC discharge is recommended, then the SCA notifies the officer that 

the officer will be required to show cause for retention before a board of inquiry 

(BOI). The officer is entitled to appear in front of and present witness testimony 

to the BOI.

- Final approval authority for separations initiated under AFI 36-3206 is the SecAF

Resignations in Lieu of Further Administrative Discharge Proceedings (AFI 36-3207, 

Ch. 2, sec. 2B)

- When the SCA notifies an officer to show cause for retention, an officer may:

-- Submit a resignation; or

-- Submit a resignation to enlist and retire if eligible to apply for retirement in 

enlisted status

- These options should not be confused with resignations for the good of the service, 

which an officer may submit when facing a court-martial for alleged criminal conduct 

(AFI 36-3207, Ch. 2, sec. 2C)

- Officer may be entitled to separation pay

- SecAF is the approval authority

References

AFI 36-2905, Fitness Program (21 October 2013), incorporating Change 1, 27 August 2015

AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers (9 June 2004), 

incorporating through Change 7, 2 July 2013, including AFI36-3206_AFGM2016-01, 

24 June 2016

AFI 36-3207, Separating Commissioned Officers (9 July 2004), incorporating through Change 6, 18 

October 2011
CHAPTER FOUR Administrative Separation from the Air Force 123

ADMINISTRATIVE SEPARATION OF RESERVISTS

AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force 

Reserve Members, applies to both officer and enlisted members of the reserve components not serving on extended active duty (EAD) with the Regular Air Force. See Tables 

2.1 and 3.1 for lists of permissible reasons for officer and enlisted separations.

General Considerations

- Processing of reservist discharge actions varies depending on whether the member 

is a Category A (CAT A) or Category B (CAT B) reservist

- Remember that letters of counseling, letters of admonition, and letters of reprimand 

for reservists are not procedurally correct unless they allow the member 30 days to 

respond, as opposed to the 3 duty days for active duty members

- For those respondents meeting an administrative discharge board, there must be at 

least three voting members

-- For officer respondents, each voting member must be at least a colonel (O-6) 

and senior in grade to the respondent, and at least one voting member must be 

a member of the Reserve Component

-- For enlisted respondents, if they wish to have non-commissioned officers (NCOs) 

serve as voting members on the board, the respondent must make this request 

in writing to the convening authority. Enlisted board members must be in the 

grade of master sergeant (E-7) or above, be senior to the respondent, and at least 

one voting member must be in the grade of major (O-4) or higher, and a majority 

shall be commissioned officers.

- CAT A (Reserve Unit):

-- The member’s unit commander initiates the discharge action by presenting the 

evidence to the Military Personnel Squadron (MPS). The MPS then prepares the 

letter of notification (LON). The LON must include all attachments (Privacy Act 

statement, statement of reasons, acknowledgement of receipt, selection of rights, 

return envelopes, and supporting documents). It must also contain the following 

additional information, if applicable:

--- Request for administrative discharge board hearing, waiver of administrative discharge board hearing, and administrative discharge board action 

information
124 The Military Commander and the Law

--- Application for transfer to the Retired Reserve

--- Recoupment of educational assistance, special pay, or incentives

--- Voluntary extension of enlistment election

-- The member is generally entitled to an administrative discharge board if the 

member is a non-probationary reserve officer; an NCO or above or has been 

an NCO or above; has 6 or more years of satisfactory service for retirement; or if 

the commander is recommending an Under Other Than Honorable Conditions 

(UOTHC) characterization

-- If the commander does not want the member to continue participating on active 

duty, a separate No Pay/No Points letter should be provided to the member or 

contained in the LON

-- The MPS presents the LON and attachments to the servicing staff judge advocate 

(SJA) for a legal sufficiency review

-- Once the LON is approved for legal sufficiency, the unit commander serves, in 

person if possible, the LON on the member. The member signs the acknowledgement receipt. The commander gives the member a copy of the entire package, 

but retains the original documents. If the member is not board entitled, the 

member has 15 days to present any rebuttal evidence.

--- If the member is not served in person, the LON should be sent via registered 

or certified mail, return receipt requested. The last option is to send the LON 

by first class mail if other attempts are unsuccessful.

--- If notification attempts are not successful, determine whether there is another 

address available. If the member’s address has changed, it must be updated 

in the Military Personnel Data System (MilPDS).

-- If board entitled, the member’s request for a board hearing must be received by 

the unit commander (or servicing MPS, if this is how the unit has set up the return 

of document if the unit commander is a Traditional Reservist) within 15 calendar 

days (30 days if in confinement), or the right to a board hearing is waived

-- For enlisted members who are not board entitled; do not have lengthy service 

consideration; are not retirement eligible; or those who waived their board 

(affirmatively or because they failed to return the Request for Board Hearing); 

the unit commander reviews any documentation submitted to confirm his/her 

determination that the discharge should proceed
CHAPTER FOUR Administrative Separation from the Air Force 125

--- This is then sent to the servicing SJA for another legal review

--- Finally, it is submitted to the wing commander or equivalent for determination of whether the member should be discharged

-- For all officer or enlisted members who are entitled to and do not waive a board; 

have lengthy service consideration; or are retirement eligible; the unit commander reviews any documentation submitted to confirm his/her determination 

that the discharge should proceed

--- This is then sent to the servicing SJA for another legal review and forwarded 

to the wing commander, or equivalent, for forwarding to HQ AFRC for further 

processing

--- HQ AFRC will convene the board and then process it to the discharge authority

- CAT B Individual Mobilization Augmentees (IMAs):

-- IMA discharges are processed through the Readiness Management Group (RMG). 

The RMG is the Air Force Reserve Command’s agency responsible for shared 

administrative control (ADCON) of IMAs.

-- Program Managers (PM) are a part of the RMG staff and are located at each 

MAJCOM, Joint Command, or Defense Agency. The PM with administrative oversight responsibility for the IMA initiates the discharge process by forwarding the 

discharge recommendation to the RMG/CC for action.

-- The RMG/CC forwards the file to HQ AFRC/DPML for processing to AFRC/CC or 

AFRC/CV, the discharge authorities for CAT B reservists

-- HQ AFRC/DPML notifies the member of the discharge recommendation by certified mail and gives the member 15 days to respond

-- HQ AFRC/JA reviews the case file and determines if it is sufficiently documented 

to support the basis for discharge

-- If the case file lacks such documentation, HQ AFRC will ask the unit to get the 

supporting documentation
126 The Military Commander and the Law

- Board Entitlements: The following reservists are entitled to present their cases before 

an administrative discharge board:

-- Enlisted: if the recommended characterization of service is UOTHC, if the member 

is a non-commissioned officer, or if the member has 6 or more years of satisfactory service for retirement

-- Officers: a non-probationary officer who has completed 5 or more years of service as a commissioned officer in any of the armed forces (as determined from 

the total federal commissioned service date); or a probationary officer who has 

completed fewer than 5 years of service as a commissioned officer in any of the 

armed forces (as determined from the total federal commissioned service date) 

when the recommended characterization of service contained in the letter of 

notification is UOTHC

References

DoDI 1332.30, Separation of Regular and Reserve Commissioned Officers (25 November 2013)

AFI 36-2115, Assignments within the Reserve Components (8 April 2005), certified current, 

2 May 2008

AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers (9 June 2004), 

incorporating through Change 7, 2 July 2013, including AFI36-3206_AFGM2016-01, 

24 June 2016

AFI 36-3208, Administrative Separation of Airmen (9 July 2004), incorporating through Change 7, 

2 July 2013, including AFI36-3208_AFGM2016-01, 24 June 2016

AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve 

Members (14 April 2005), incorporating through Change 3, 20 September 2011
CHAPTER FOUR Administrative Separation from the Air Force 127

LOSS OF VETERANS’ BENEFITS

The U.S. Department of Veterans Affairs (VA) provides several benefits to veterans including the GI Bill, home loan benefits, disability compensation, and other benefits. More 

information on the availability of veteran’s benefits can be found at www.benefits.va.gov. 

To become eligible for veteran’s benefits, the active duty member must have been discharged or released under conditions other than dishonorable. The term “dishonorable” 

is broader in the context of determining VA benefit eligibility than the term as defined in 

Rule for Courts-Martial 1003(b)(8)(B), which relates to the punitive dishonorable discharge 

one can receive at a court-martial.

- Discharge or release because of any of the following offenses is considered to have 

been issued under dishonorable conditions:

-- Acceptance of an under other than honorable conditions (UOTHC) discharge to 

avoid trial by general court-martial

-- Mutiny or spying

-- An offense involving moral turpitude, including (generally) a conviction of a 

felony

-- Willful and persistent misconduct, including a UOTHC discharge if it is determined that the discharge was issued for willful and persistent misconduct, but 

not including a discharge because of a minor offense if service was otherwise 

honest, faithful, and meritorious

- Benefits are also not payable where the member was discharged or released under 

one of the following conditions:

-- As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful orders of competent military authorities

-- By reason of the sentence of a general court-martial

-- Resignation by an officer for the good of the service

-- As a deserter

-- As an alien during a period of hostilities where it is shown the member requested 

his/her release
128 The Military Commander and the Law

-- By reason of a UOTHC discharge as a result of an absence without leave for a 

continuous period of at least 180 days

- A punitive discharge or UOTHC characterization does not necessarily deprive a member of benefits administered by the VA

- Normally, benefits earned during an earlier enlistment period of honorable service 

are not voided by a punitive discharge or a UOTHC discharge earned during a later 

enlistment.

- Any person may be denied VA benefits, regardless of an earlier period of honorable 

service, if shown by evidence satisfactory to the Secretary of Veteran’s Affairs to be 

guilty of:

-- Filing a fraudulent claim for benefits;

-- Treason; or

-- Subversive activities

References

38 U.S.C. § 5303

38 U.S.C. §§ 6103-6105

United States v. McElroy, 40 M.J. 368 (C.M.A. 1994)

38 C.F.R. § 3.12
129

Installation Jurisdiction.......................................................................................................................131

Federal Magistrate Program..............................................................................................................134

Court-Martial Jurisdiction Under the UCMJ................................................................................136

A Commander’s Guide to the AFOSI ..............................................................................................141

Functions of the Area Defense Counsel........................................................................................150

Military Magistrate Program..............................................................................................................152

National Security Cases.......................................................................................................................154

Sexual Assault Prevention and Response.....................................................................................157

Special Victims' Counsel Program ...................................................................................................168

Command Response to Sexual Assault.........................................................................................172

Air Force Victim Witness Assistance Program..............................................................................176

Transitional Compensation for Victims of Abuse.......................................................................180

Media Relations in Military Justice Matters.................................................................................182

Arrest by Civil Authorities...................................................................................................................187

Advising Suspects of Rights..............................................................................................................192

Inspections and Searches...................................................................................................................198

Preliminary Inquiry Into Reported Offenses................................................................................207

Military Justice Actions and the Inspector General ..................................................................209

Preparation, Preferral, and Processing of Charges....................................................................211

Pretrial Restraint and Confinement................................................................................................214

Immunity..................................................................................................................................................221

Pretrial Agreements..............................................................................................................................224

Trial Format..............................................................................................................................................227

CHAPTER FIVE: CRIMINAL AND

5

MILITARY JUSTICE
130 The Military Commander and the Law

Confidentiality and Privileged Communications.......................................................................230

Use of Information in the Personal Information File and Rehabilitation Testimony

at Court-Martial...............................................................................................................................235

Post-Trial Matters, Clemency Submissions, Convening Authority Action, and 

Appeals..............................................................................................................................................237
CHAPTER FIVE Criminal and Military Justice 131

INSTALLATION JURISDICTION

Installation jurisdiction refers to the type of legal authority exercised by the Air Force 

over an installation. There are four main types of jurisdiction (arranged from greatest Air 

Force authority to least): (1) exclusive federal jurisdiction; (2) concurrent federal jurisdiction; (3) partial federal jurisdiction; and (4) proprietary jurisdiction. Depending on your 

installation, more than one type of jurisdiction may apply. Always check with your staff 

judge advocate to verify the type of jurisdiction existing on your installation.

Title

- Title in relation to a military installation is virtually the same as in a private real estate 

transaction. Title simply means legal ownership—the legal right to the use and possession of a designated piece of property.

- In most cases, the Air Force has title to the property on which its installations are 

located. However, some installations sit on leased property or have portions of the 

base sitting on leased property.

- The installation civil engineer maintains the deed or lease to the installation. Questions concerning title to the installation’s real property should be referred to the 

servicing staff judge advocate.

Jurisdiction

- The concept of jurisdiction is separate and distinct from that of title

- Jurisdiction includes the right to legislate (i.e., implement laws, rules, and regulations) and to enforce those laws. Having title does not necessarily include legislative 

jurisdiction.

Sources of Legislative Jurisdiction

- Article I, Section 8, Clause 17, of the United States Constitution confers upon Congress 

the power to exercise legislative jurisdiction over federal property. The government 

can acquire the right to exercise legislative jurisdiction in three ways.

-- Purchase and Consent: The federal government purchases the property, and the 

state legislature consents to giving the federal government jurisdiction

-- Cession: After the federal government acquires title to property, the state may 

cede jurisdiction, in whole or in part, to the federal government. The federal 

government can later retrocede jurisdiction back to the state. 10 U.S.C. § 2683. 
132 The Military Commander and the Law

Prior to 1940, it was presumed that jurisdiction was ceded at the time the government acquired the property. Since 1940, however, there must be an affirmative 

acceptance of jurisdiction before the federal government will have legislative 

jurisdiction. 40 U.S.C. § 3112. Check the deed to determine when the federal 

government acquired the property.

-- Reservation: At the time the federal government ceded property to establish 

a state, particularly in the western United States, it reserved some of the land 

as federal property. In these cases, the federal government retained legislative 

jurisdiction over the property it reserved. Again, check the deed.

Types of Legislative Jurisdiction

- The inquiry does not stop with determining if the federal government has legislative 

jurisdiction. It is also necessary to determine what type of jurisdiction it has. There 

are four types of legislative jurisdiction.

-- Exclusive Jurisdiction: As the term implies, this type of jurisdiction gives the 

federal government sole authority to legislate. Unless exclusive jurisdiction was 

reserved at the time land was granted to the state, it is necessary to go back to 

the state for exclusive jurisdiction. The state may have elected to reserve some 

authority, e.g., authority to serve civil and criminal process on the property. If 

the state failed to reserve such authority, it is waived. For some years now, it has 

been federal policy not to acquire exclusive jurisdiction. While at first blush this 

may seem odd, there are legitimate reasons for the policy. For instance, state and 

local authorities may be better able to deal with particular situations than the 

federal government, e.g., child welfare services, domestic relations matters, etc.

-- Concurrent Jurisdiction: Both the state and federal governments retain all their 

legislative authority. In the event of conflict, the federal government prevails 

under the Supremacy Clause of the Constitution. U.S. Const. Art. VI, cl. 2.

-- Partial Jurisdiction: Both the state and federal government have some legislative 

authority, but neither one has absolute power. For instance, the state may have 

reserved the authority to impose and collect taxes, or it may have ceded only 

criminal jurisdiction over the property. Again, federal supremacy applies in the 

event of a conflict.
CHAPTER FIVE Criminal and Military Justice 133

-- Proprietary Jurisdiction: In this case, the United States is like any other party who 

has only a possessory interest in the property it occupies. The United States is 

simply a tenant with virtually no legislative authority. The federal government 

maintains immunity and supremacy for inherently governmental functions. The 

only federal laws that apply are those that do not rely upon federal jurisdiction, e.g., espionage, bank robbery, tax fraud, counterfeiting, etc. However, the 

installation commander can still exclude civilians from the area pursuant to the 

commander’s inherent authority.

References

U.S. Const. Art. I, § 8, cl. 17

U.S. Const. Art. VI, cl. 2

10 U.S.C. § 2683

40 U.S.C. § 3112

Greer v. Spock, 424 U.S. 828 (1976)

AFI 32-9001, Acquisition of Real Property (27 July 1994)
134 The Military Commander and the Law

FEDERAL MAGISTRATE PROGRAM

The federal magistrate program provides a means of enforcing discipline on base with 

respect to civilian criminal misconduct. The availability of the program depends on the 

location and jurisdiction of the base, the type and locale of the offense, and the status 

of the offender.

How Magistrate Court Works

- Federal magistrate court is an alternative to prosecution in federal district court. 

Magistrate court generally provides a more expeditious and cost-effective forum 

than district court for minor civilian criminal misconduct. 

- Military members on Title 10 orders should NOT be prosecuted for criminal offenses 

in U.S. magistrate court

- Prosecution in magistrate court requires the consent of the defendant

- United States magistrate judges normally try misdemeanor offenses (offenses for 

which the authorized penalty does not exceed 1 year of imprisonment)

- Air Force judge advocates, when designated by the United States Attorney for the 

area of the base to act as Special Assistant United States Attorneys (SAUSAs), may 

prosecute cases in magistrate court

-- Prosecution by Air Force judge advocates in U.S. District Court is permissible with 

MAJCOM Staff Judge Advocate approval

- Where an installation magistrate court program is established, the installation 

commander should execute a memorandum of understanding (MOU) with the U.S. 

Attorney covering responsibilities and procedures for trials in U.S. magistrate court

Federal Magistrate Program Jurisdiction

- Criminal actions committed by civilians on a military installation may be handled 

in federal court, contingent upon the jurisdictional status of the installation and 

whether the crime in question violated state or federal law

-- Federal Statutes Without Territorial Jurisdiction Requirements: Prosecuted in 

federal court regardless of the installations jurisdictional status, e.g., counterfeiting, espionage, sabotage, bribery of federal officers
CHAPTER FIVE Criminal and Military Justice 135

-- Federal Statutes With Territorial Jurisdiction Requirements: May be prosecuted in 

federal court if the installation where the crime occurs has appropriate jurisdiction, e.g., exclusive or, in most cases, concurrent jurisdiction

--- If the federal government has only proprietary jurisdiction, federal statutes 

that rely on territorial jurisdiction may not be enforced in federal court. Such 

offenses may be prosecuted only in state court.

--- If the federal government has exclusive jurisdiction, the state may not prosecute offenses committed on the installation. Federal courts provide the 

only remedy.

-- State Statutes: Generally, state law crimes will be prosecuted in state court, 

however, most state law violations can be handled in federal court under the 

Assimilative Crimes Act, 18 U.S.C. § 13

--- Makes violating a state statute on an installation with exclusive jurisdiction 

a federal offense and allows prosecution of state-only crimes

--- This is available where the conduct does not otherwise violate a federal 

statute

- State vehicular and pedestrian traffic laws are expressly adopted and made applicable 

on military installations having concurrent or exclusive federal jurisdiction under the 

provisions of 18 U.S.C. § 13. In those states where violations of traffic laws are not 

considered criminal offenses and cannot be assimilated, DoDD 5525.4 adopts the 

vehicular and traffic laws of such states and makes these laws applicable to military 

installations having concurrent or exclusive federal jurisdiction.

References

18 U.S.C. § 13

32 C.F.R. § 634.25

DoDD 5525.4, Enforcement of the State Traffic Laws on DoD Installations (2 November 1981), 

incorporating Change 1, 31 October 1986

AFI 36-703, Civilian Conduct and Responsibility (18 February 2014)

AFI 51-905, Use of Magistrate Judges for Trial of Misdemeanors Committed by Civilians 

(30 September 2014)
136 The Military Commander and the Law

COURT-MARTIAL JURISDICTION UNDER THE UCMJ

The UCMJ applies at all times and at all places to active duty military members, as well 

as to reservists in activated status and national guardsmen in “Title 10” federal status. 

Court-martial jurisdiction rests upon two primary considerations: (1) commission of an 

offense under the UCMJ; and (2) military status of the person who committed the offense 

at the time the offense was committed.

Types of Jurisdiction

- Military Offenses RCM 201(d)(1): Courts-martial have exclusive power to hear and 

decide “purely military offenses”

- Nonmilitary Offenses RCM 201(d)(2): Crimes that violate both the UCMJ and local 

criminal law may be tried by a court-martial, a civilian court, or both

-- Double Jeopardy for court-martial and federal court prosecution of same 

misconduct

--- A military member may NOT be tried for the same misconduct by both 

a court-martial and another federal court because that would constitute 

“double jeopardy” because the same sovereign (i.e., the federal government) 

would be prosecuting the accused twice for the same misconduct

-- No Double Jeopardy for court-martial and state/foreign court prosecution of 

same misconduct

--- A military member MAY be tried for the same misconduct by both a courtmartial and state court. However, if a military member was tried by a state 

court and jeopardy attached, regardless of the outcome, as a matter of policy, 

SecAF approval is required before proceeding with a court-martial. AFI 

51-201, Administration of Military Justice, para. 2.6.3. If the case was dismissed 

before jeopardy attached, SecAF approval is not necessary.

-- Host nation treaties and status of forces agreements (SOFAs) govern exercise of 

jurisdiction over military members overseas
CHAPTER FIVE Criminal and Military Justice 137

Jurisdiction Over the Offense (RCM 203)

- Courts-martial may try any offense under the UCMJ, and in general courts-martial, 

the law of war

- Jurisdiction in a court-martial is based solely on the accused’s status as a person 

subject to the UCMJ, and not the “service-connection” of the charged offense

Jurisdiction Over the Person (RCM 202)

- General Rule: UCMJ, Article 3(a) authorizes court-martial jurisdiction in all cases in 

which the service member was subject to the UCMJ at the time of the offense and is 

subject to the UCMJ at the time of trial. Article 2 of the UCMJ lists classes of persons 

who are subject to the UCMJ.

- Fraudulent Enlistment: UCMJ, Article 2(c) provides that, notwithstanding any other 

provision of law, a person serving with the armed forces is subject to the UCMJ until 

such person’s active duty service has been terminated in accordance with law or 

regulations promulgated by the SecAF if the person:

-- Submitted voluntarily to military authority;

-- Met the mental competence and minimum age qualifications at the time of 

voluntary submission to military authority;

-- Received military pay or allowances; and

-- Performed military duties

Air Force Reserve

- Articles 2(a)(1) and 2(a)(3), UCMJ, extend court-martial jurisdiction over reservists 

whenever they are in Title 10 status (meaning that they are on inactive duty training 

(IDT), active duty (AD), or annual tour (AT)). See also RCM 202 and 204(b)(1) and AFI 

51-201, para. 2.9, Jurisdiction over Air Force Reserve and Air National Guard Members.

- Article 2(d), UCMJ, authorizes a member of the reserve to be ordered to active duty 

for nonjudicial punishment, Article 32 investigation, and trial by court-martial

-- The Air Force has placed certain restrictions on involuntary recall of reserve 

members
138 The Military Commander and the Law

--- An Air Force Reserve member may be ordered to active duty by an active 

component general court-martial convening authority. AFI 51-201, para. 2.9.4.

--- An Air Force Reserve member recalled to active duty for court-martial may 

not be sentenced to confinement, or be required to serve a punishment 

consisting of any restrictions on liberty during the recall period of service, 

without approval of SecAF. The staff judge advocate (SJA) will coordinate 

approval, as needed, to recall an Air Force Reserve member for court-martial 

when the sentence may include confinement. AFI 51-201, para. 2.9.5.

--- Do not involuntarily recall Air Force Reserve members to active duty solely 

for nonjudicial punishment or summary court-martial, although major command commanders or equivalents may grant waivers to this restriction in 

appropriate cases. AFI 51-201, para. 2.9.3.

-- When determining whether the commander has UCMJ jurisdiction over the member, the commander must determine two facts: (1) military status at time of the 

offense and (2) military status as of the time of court-martial

--- Military Status at Time of Offense: Was the member in military status at the 

time he or she committed the alleged misconduct? If not, then no UCMJ 

jurisdiction exists.

---- A member in active status (e.g., special tour, annual tour) is subject to the 

UCMJ from the beginning to the end of the tour, 24 hours a day

---- Generally, a member performing IDT or a unit training assembly (UTA) 

is subject to the UCMJ from the beginning to the end of the duty day, 

e.g., 0730 – 1630

---- Even if no UCMJ jurisdiction exists, commanders always have jurisdiction 

to perform administrative actions and can hold members accountable 

by using a variety of adverse administrative actions such as letters of 

counseling, admonishment, reprimand, etc.

--- Military Status at the Time of Court-Martial/NJP: Will the member be in military status at the time the commander will impose punishment?

---- Commanders can always ask whether the member will voluntarily submit 

to UCMJ jurisdiction by extending his/her tour or IDT/UTA
CHAPTER FIVE Criminal and Military Justice 139

---- Commanders can wait until the member’s next scheduled training to 

impose Article 15 punishment

---- If the member is under orders, the commander can involuntarily extend 

the member to impose Article 15 punishment before the orders expire

---- If the member is performing an IDT or a UTA, the member cannot be 

extended because there are no orders to extend

Air National Guard (ANG)

- A member of the ANG is subject to court-martial jurisdiction only when in federal 

service. UCMJ Art. 2(a)(3), 10 U.S.C. §§ 12301, 12401.

-- ANG members serve in one of two federally funded duty capacities:

--- State Duty Status: Referred to as “Title 32” status

--- Federal Duty Status: Referred to as “Title 10” status

-- When ANG members are performing state duty (state active duty or Title 32) they 

are subject to their state codes of military justice

-- It is very important to coordinate with your local SJA when addressing ANG military justice matters to ensure jurisdiction over that person

Retirees

- Court-martial jurisdiction continues over retired Regular Air Force personnel entitled 

to military pay. UCMJ Art. 2(a)(4), (5).

- Retired members should not be court-martialed unless their conduct clearly links 

them with the military or is adverse to a significant military interest of the United States

- Commanders should not prefer charges without SecAF approval unless the statute 

of limitations (UCMJ Art. 43) is about to run out. The SJA will coordinate approval, as 

needed, to recall a retired member for court-martial.
140 The Military Commander and the Law

Termination of Jurisdiction

- General Rule: A valid discharge terminates jurisdiction. There must be:

-- Delivery of a valid discharge certificate;

-- A final accounting of pay; and

-- Completion of the clearing process required by appropriate service instructions

- Exceptions: UCMJ Art. 3

-- The member was subject to the UCMJ at the time of the offense and is subject 

to the UCMJ at the time of trial

-- A fraudulently obtained discharge does not terminate military jurisdiction

-- An Air Force Reserve member is not, by virtue of the termination of a period of 

active duty or inactive-duty training, “shielded” from jurisdiction for an offense 

committed during such period of active duty or inactive-duty training

Statute of Limitations (UCMJ Art. 43)

- General Rule – Nonjudicial Punishment: Imposition of NJP within 2 years of offense

- General Rule – Court-Martial: Preferral of charges within 5 years of offense

- Exception: There is no statute of limitation for a person charged with murder, rape, 

sexual assault, rape or sexual assault of a child, and any other offense punishable 

by death

References

U.S. Const. amend. V

UCMJ Arts. 2, 3, and 43 

10 U.S.C. § 12301, 12401

Solorio v. United States, 483 U.S. 435 (1987) 

Rules for Courts-Martial 201-204 (2015)

AFI 36-3209, Separation Procedures for Air Force National Guard and Air Force Reserve Members

(14 April 2005), incorporating through change 3 (20 September 2011)

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016
CHAPTER FIVE Criminal and Military Justice 141

A COMMANDER’S GUIDE TO THE AFOSI

The Air Force Office of Special Investigations (AFOSI) provides specialized investigations 

and services to protect Air Force and DoD personnel, operations, and interests. AFOSI 

is the designated Military Criminal Investigation Organization (MCIO) for the Air Force. 

Select AFOSI agents are also members of the Special Victim Investigation and Prosecution 

(SVIP) capability, in accordance with DoD policy.

Organization

- Removed from command channels as an independent, centralized organization to 

ensure unbiased investigations

- Accountable to the Secretary of the Air Force (SecAF) and organized under the oversight of SAF/IG, but has independent statutory and regulatory authority to conduct 

criminal investigations and counterintelligence activities

- Missions include investigating allegations of criminal activity and fraud, as well as 

counterintelligence and specialized investigative activities, counter-drug activities, 

protective service operations, and integrated force protection

Requesting AFOSI Investigative Service

- Any Air Force commander responsible for security, discipline, or law enforcement 

may request investigative support

-- Investigations initiated on authority of AFOSI/CC, as delegated to subordinate 

AFOSI commanders and special agents in charge

- Only SecAF may direct AFOSI to delay, suspend or terminate an investigation, unless 

the investigation is conducted at the request of DoD/IG

- AFOSI briefs Air Force commanders on the progress of investigations affecting their 

command as necessary

- Coordination with AFOSI and the staff judge advocate (SJA) is required prior to 

commanders reassigning a person subject to an AFOSI investigation or ordering/

permitting a commander directed inquiry/investigation when there is ongoing AFOSI 

investigation
142 The Military Commander and the Law

- AFOSI investigative responsibilities

-- Generally, AFOSI will only investigate major offenses

-- Initiates investigation into ALL allegations of sexual assault that occur within its 

jurisdiction, regardless of the severity of the allegation

-- Minor offenses are normally handled by Security Forces, Office of Investigations 

(SFOI)

-- Coordination between AFOSI and SFOI is required to make best use of investigative resources, taking into consideration technical expertise, investigative 

capability, and available manpower

Mutual Support Agreements

- Command Role:

-- AFOSI requests, and the appropriate commander or magistrate issues, search 

and seizure authorizations based on probable cause requirements. Include the 

SJA in every case involving a probable cause determination.

-- Operations Security (OPSEC) of AFOSI investigations is critical

--- Knowledge of an ongoing AFOSI investigation by unnecessary parties may 

jeopardize operations and compromise efforts to neutralize criminal or 

counterintelligence threats

--- Exposure of AFOSI sources/agents/witnesses and investigative techniques 

could place persons and evidence at risk

--- Restrict information to base/staff officials on a strict “need-to-know” basis

-- Crime scene protection support

--- AFOSI depends on command support and resources to protect crime scenes

--- Untrained, though well-intentioned, personnel who disturb or change the 

physical environment or handle objects at the crime scene can alter or 

destroy critical evidence
CHAPTER FIVE Criminal and Military Justice 143

-- Security Forces are usually the first responders who secure and protect the scene 

for AFOSI

--- Exclude witnesses, curiosity seekers, and limit to minimum number of authorized personnel necessary (e.g., medical, fire department)

--- Rank or official position alone should not justify entry

-- Protection of agent’s grade

--- Mission success is enhanced by concealing the rank of AFOSI special agents

--- Commanders are required to ensure special procedures exist to protect 

agents’ personnel, medical, and other administrative records

--- Host commander may authorize permanent or temporary housing in officer’s 

quarters

--- AFOSI personnel may wear civilian clothes while performing their duties

-- Complaints against AFOSI personnel should be referred to the person’s immediate commander for thorough and expeditious investigation by AFOSI, which has 

its own internal affairs section

- AFOSI Support to Command:

-- AFOSI developmental files

--- Preliminary inquiry initiated by AFOSI/CC or Region/CC and used to examine 

situation to determine if there is criminal activity warranting an investigation

--- Information systematically collected on specific types of offenses or targets, 

typically using confidential informants or undercover agents

--- Information analyzed to determine need for individual substantive cases

-- Child abuse/neglect

--- Assist command in family advocacy program
144 The Military Commander and the Law

--- All allegations of serious child abuse or neglect must be reported to AFOSI, 

regardless of origin of complaint (personnel of family support and child care 

centers, equal opportunity, medical, etc.)

---- AFOSI has greater access to certain records

---- AFOSI can provide fact-finding role to assist command and staff to make 

decisions

Special Victim Investigation and Prosecution (SVIP) Capability

- DoD policy requires each military service to maintain a SVIP capability comprised of 

specially trained MCIO investigators, judge advocates, paralegals, and victim/witness 

assistance personnel in support of victims of rape, sexual assault, child sex assault, 

and other crimes of serious violence

-- SVIP Process: MCIO investigators collaborate with assigned specially trained 

judge advocates, DoD Sexual Assault Response Coordinators (SARCs), Sexual 

Assault Prevention and Response Victim Advocates (SAPR VAs), Family Advocacy Program (FAP) managers, and domestic abuse victim advocates (DAVAs), 

as appropriate, during all stages of the investigative and military justice process 

for “covered offenses”

-- “Covered Offenses”:

--- Unrestricted reports of adult sexual assault

--- Unrestricted reports of domestic violence involving sexual assault and/or 

aggravated assault with grievous bodily harm

--- Child abuse involving child sexual assault and/or aggravated assault with 

grievous bodily harm

- AFOSI is the MCIO for the Air Force SVIP

AFOSI’s Specialized Functions

- Sole manager of USAF polygraph program

- Specially trained mental health professionals using supervised cognitive interviews 

or forensic hypnosis as an aid to witness or victim memory enhancement
CHAPTER FIVE Criminal and Military Justice 145

- Provide law enforcement and counterintelligence support for USAF nuclear envoys

- Regionally located investigators serve as specialists in the investigation of cybercrime, 

e.g., computer network intrusions and computer media search and seizure

- Forensic Science Consultants:

-- Regionally located experts with forensic sciences masters degrees

-- May provide consultation, training, or specialized investigative techniques

- Technical Services:

-- Process and support requests to intercept wire, oral, or electronic communications for law enforcement or counterintelligence purposes

-- Technical surveillance countermeasures

--- Detection and neutralization of technical surveillance devices deployed 

against Air Force facilities

--- Conducts security vulnerability surveys

- Protective Services:

-- Provides threat assessments; protects designated Air Force officials; protects 

foreign official guests of DoD in the continental United States (CONUS)

-- Provides assessments and estimates on terrorist and foreign intelligence threats 

to Air Force deployments, exercises, weapons facilities, and other base facilities 

upon request. HQ AFOSI/JA, not the base legal office, provides legal advice for 

counterintelligence operations

- Security Violations:

-- AFOSI investigates all security incidents of espionage, suspected compromise of 

special access information, or deliberate compromise of classified information

-- Does not investigate routine security violations
146 The Military Commander and the Law

AFOSI Policy Information

- Apprehension/Arrest:

-- Civilian special agents are authorized to arrest civilians under many circumstances. 

However, not all detachments have civilian agents. In addition, this authority will 

be used judiciously and only when necessary.

--- Civilian agents’ authority is derived from 10 U.S.C. § 9027

-- Military agents’ authority is derived from the Manual for Courts-Martial

--- Limited to individuals subject to UCMJ, not family members or nonmilitary 

U.S. citizens

--- Only if required by operation or emergency (security forces routinely do so 

at AFOSI’s request)

--- Military law enforcement personnel may temporarily detain civilians suspected of on-base offenses until civilian authorities arrive

- Arming:

-- AFPD 71-1 authorizes agents to carry Government issued or approved privately 

owned firearms (including concealed) for duties

-- AFOSI offices required to maintain at least one handgun and ammunition for 

each agent assigned

-- Weapons stored within AFOSI facilities or in security forces armory if the local 

detachment is inadequate for security purposes

- Sources and Undercover Agents:

-- Human sources of information may be overt (official) or covert (confidential)

-- AFOSI undercover agents are specially trained to perform duties
CHAPTER FIVE Criminal and Military Justice 147

-- OPSEC and safety concerns dictate identity protections

--- Investigative reports may conceal identities of sources; release of identities 

requires either concurrence of AFOSI detachment commander/special agent 

in charge or an order from a military judge

--- Threatened Airman Program is a personnel program; AFOSI provides threat 

validation and assessment as prelude to reassignment action

Types of AFOSI Reports

- Routinely Provided:

-- Information routinely provided to commanders and their representatives 

(e.g., SJA)

- Interim Case Reporting:

-- AFOSI may up-channel internal reporting of special interest cases where publicity 

or Congressional interest is expected

-- Informs HQ AFOSI, Air Staff, commanders, and other agencies of significant matters affecting Air Force and DoD

-- Separate and distinct from major command up-channel reporting

- Report of Investigation (ROI):

-- Provided to command officials when investigation is complete

-- Information obtained through investigation and witness interviews

-- No recommendations or suggestions on appropriate command action

- Special Reports:

-- Provided by HQ AFOSI highlighting a particular kind of investigative activity and 

pinpointing problems so commanders can better handle them

-- Provides description of weaknesses or susceptible areas under command to alert 

functional managers for possible correctional or remedial actions, e.g., fraud 

information reports, narcotics information reports, and narcotics briefs
148 The Military Commander and the Law

-- Reports requested by the Air Staff or other senior Air Force or DoD officials containing in-depth analysis of some area of concern Air Force-wide, e.g., damage 

to AF aircraft

- Command Reporting of Actions Taken:

-- Commanders must provide AFOSI with a report of action taken

-- Allows AFOSI to ensure command action is included in appropriate national 

level databases

Release of Information

- AFOSI records are “For Official Use Only” and should be treated as sensitive records 

covered by Privacy Act

- Safeguarding, handling, and releasing information from AFOSI reports:

-- May be released in whole or in part, only to persons who require access for official 

duties

--- Refer all requests for release to non-Air Force officials to the servicing AFOSI 

detachment

--- In the absence of a governing agreement, only HQ AFOSI may authorize 

release outside the Air Force; or release or deny information under Freedom 

of Information Act (FOIA) or Privacy Act (law enforcement records exemption)

--- SJAs must appropriately redact Report of Investigation (ROI) prior to release 

to defense attorneys for discovery

- Press or news inquiries for information require close coordination between public 

affairs, SJA, and AFOSI in all cases
CHAPTER FIVE Criminal and Military Justice 149

References

10 U.S.C. § 9027

Military Rules of Evidence 507 (2015)

DoDI 5505.19, Establishment of Special Victim Investigation and Prosecution (SVIP) Capability 

within the Military Criminal Investigative Organizations (MCIOs) (3 February 2015), 

incorporating Change 1, 4 September 2015

AFI 71-101 V1, Criminal Investigations Program (8 October 2015), certified current 

17 December 2015

AFI 71-101 V2, Protective Service Matters (23 Jan 2015), certified current 17 December 2015

AFI 71-101 V3, The Air Force Technical Surveillance Countermeasures Program (13 May 2015), 

certified current 17 December 2015

AFI 71-101 V4, Counterintelligence (26 January 2015), certified current 17 December 2015

AFMD 39, Air Force Office of Special Investigations (7 May 2015)

AFPD 71-1, Criminal Investigations and Counterintelligence (13 November 2015)
150 The Military Commander and the Law

FUNCTIONS OF THE AREA DEFENSE COUNSEL

The area defense counsel (ADC) program provides Air Force members with free, confidential, and independent legal representation. Airmen suspected of a criminal offense 

or facing an adverse administrative action receive legal advice from an experienced, 

certified judge advocate.

- The ADC represents Air Force members in the following areas:

-- Courts-martial

-- Administrative discharge actions

-- Article 32 investigations

-- Article 15 actions

-- Criminal investigations or interrogations (when a service member requests a 

defense counsel pursuant to the service member’s right not to self-incriminate 

under Article 31, UCMJ)

-- Any other adverse administrative action for which legal counsel is required or 

authorized, including but not limited to Letters of Counseling, Admonition, or 

Reprimand, Unfavorable Information Files, Control Rosters, Referral Performance 

Reports, administrative demotions, and Flying Evaluation Boards

- All ADCs are assigned outside the local chain of command and maintain an office 

physically separate from the base legal office to avoid conflicts of interest or command influence

-- The ADC’s responsibility is to zealously and ethically represent the client, which 

may include meeting with or advocating directly to commanders and unit 

leadership

-- Acting as legal representative for the client alone, the ADC is ethically prohibited 

from sharing any details of the representation of the client or any confidential 

client communications with third parties, unless specifically authorized to do so
CHAPTER FIVE Criminal and Military Justice 151

- Air Force members facing any type of investigation or adverse administrative action 

should be promptly referred to the ADC

-- Civilians are not entitled to ADC representation

-- Resources permitting, the ADC at Air Force Reserve Command, Robins Air Force 

Base, Georgia will represent reservists facing administrative discharge action; 

reservists facing military criminal investigation or any other adverse administrative action will generally be represented by the ADC responsible for servicing 

that member’s reserve unit

- The ADC program requires strong command and staff judge advocate (SJA) support 

to maintain the integrity and fairness of the military justice system

- The ADC is available, subject to workload and client confidences, to help educate the 

base population on the military justice system and the ADC’s function

Reference

AFI 36-3208, Administrative Separation of Airmen (9 July 2004), incorporating through Change 7, 

2 July 2013, including AFI36-3208_AFGM2016-01, 24 June 2016
152 The Military Commander and the Law

MILITARY MAGISTRATE PROGRAM

Military magistrates may be appointed by an installation commander who is either a 

special or general court-martial convening authority, or the installation commander at 

Air Force Reserve Command bases and stations. A military magistrate’s primary duty is to 

determine whether probable cause exists to issue search, seizure, and/or apprehension 

authorizations in criminal investigations and, if so, to issue such authorizations.

- The installation commander may appoint a maximum of four officers, of “judicial 

temperament,” to serve as military magistrates for the installation

-- Absent general court-martial convening authority (GCMCA) approval, a magistrate must be in the grade of lieutenant colonel or above

-- A magistrate may not be a chaplain, security forces member, staff judge advocate 

personnel, Air Force Office of Special Investigation (AFOSI) agent, or convening 

authority

-- Appointment must be in writing, specifying the name (not position) of the magistrate and the installation over which the magistrate has authority

-- If more than one magistrate is appointed for a single installation, each exercises 

concurrent authority with the other and with the installation commander

- Once appointed, magistrates are authorized to issue probable cause search, seizure, 

and/or apprehension authorizations based upon written or oral statements or any 

other evidence or information made known to the magistrate

-- Magistrates may exercise this authority concurrent with installation commander, 

but the availability of the installation commander is not required for the magistrate to act

-- Magistrates must be neutral and detached and remain impartial when granting 

search and seizure or apprehension authorization in a particular case

-- Magistrates may grant search and seizure or apprehension authority either 

orally or in writing, usually via AF Form 1176, Authority to Search and Seize, and 

AF IMT 3226, Authority to Apprehend in Private Dwelling. If conditions permit, 

verbal authorizations should generally be memorialized in writing as soon as 

practicable.
CHAPTER FIVE Criminal and Military Justice 153

- Each installation’s staff judge advocate will brief and train the magistrate on his or her 

duties when appointed and thereafter when appropriate, as well as provide detailed 

legal advice regarding each individual probable cause determination

References

Military Rules of Evidence 315 (2015)

Military Rules of Evidence 316 (2015)

Rule for Courts-Martial 302 (2015) 

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016 

AF Form 1176, Authority to Search and Seize (2 March 2016)
154 The Military Commander and the Law

NATIONAL SECURITY CASES

Commanders contemplating disciplinary or administrative action against military members or civilian employees that could lead to discharge or removal from the Air Force must 

first obtain permission to proceed when the member or employee holds a special access. 

“Special access” includes Sensitive Compartmented Information (SCI) access, Single Integrated Operational Plan-Extremely Sensitive Information (SIOP/ESI), HQ USAF/XO special 

access programs, research and development (R&D) special access programs and Air Force 

Office of Special Investigation (AFOSI) special access. Do not take action on personnel 

who now hold or have held certain access within the periods specified until approval is 

obtained from the appropriate special access program identified in AFI 31-501, Personnel 

Security Program Management, para. 8.9.

Obtaining Permission to Proceed in Courts Martial, Administrative Discharges, and 

Civilian Removal Actions

- Commanders send a written request to the appropriate special access program(s) 

functional office for permission to proceed with further processing, including the 

information required by AFI 31-501, para. 8.9.1. Involve the unit security manager 

and the special access program manager in the collection and processing of this 

type of information.

- Expeditious processing of such requests must be pursued to comply with speedy 

trial rules in criminal cases and restrictive time requirements in civilian removal cases. 

Normally, no more than 15 days should elapse between the date of initiation request 

and the approval/denial by the Office of Primary Responsibility (OPR).

- Voluntary separation requests by officers (AFI 36-3207, Separating Commissioned 

Officers) and enlisted members (AFI 36-3208, Administrative Separation of Airmen) 

will not be handled under these procedures unless they are in lieu of adverse action

- Periodic reporting by the unit commanders should advise the parent MAJCOM and 

decision authority of any changes to the proposed action every 90 days until the 

action has been completed

Actions Permitted Pending Decision to Proceed

- Courts-martial: In general or special courts-martial, command may process the case 

through preferral of charges and an Article 32 preliminary hearing, if applicable, but 

may not refer charges without permission to proceed. These restrictions do not apply 

to summary courts-martial.
CHAPTER FIVE Criminal and Military Justice 155

- Officer Discharges: The show cause authority may not initiate the discharge, issue a 

show cause memorandum, or otherwise require officers to show cause for retention 

until the appropriate action office grants authority to proceed

- Enlisted Discharges: In “notification” cases, the commander may process the action 

through giving the member notice of the proposed discharge, obtaining the 

member’s response, scheduling necessary appointments, and conducting those 

appointments. However, the separation authority may not approve the discharge 

until permission to proceed is granted. In “board hearing” cases, the commander 

may similarly process the action through giving the member notice of the proposed 

discharge, obtaining the member’s response, scheduling necessary appointments, 

and conducting those appointments. The convening authority may not convene the 

board until authority to proceed is obtained.

- Civilian Removals: Commanders must coordinate with the servicing civilian personnel 

flight to compose the message to forward to the appropriate Air Force OPR, seeking 

authority to proceed. Under no circumstances may a “notice of proposed removal” 

be issued until authority to proceed is obtained.

Judge Advocate Notifications in Certain National Security Cases

- Any case with potential to be a national security case must be reported immediately 

to AFLOA/JAJM, by the local staff judge advocate (SJA). Such cases include:

-- Aiding the Enemy (UCMJ Art. 104)

-- Spying (UCMJ Art. 106)

-- Espionage (UCMJ Art. 106a

-- Sabotage (UCMJ Art. 108; 18 U.S.C. § 2155)

-- Subversion (UCMJ Art. 94)

-- Violations of punitive instructions, regulations, or criminal statutes concerning 

classified information, or U.S. foreign relations (UCMJ Art. 92)
156 The Military Commander and the Law

- DoDI 5525.07 requires coordination between DoD and Department of Justice (DOJ) 

of the investigation and disposition of significant cases. Early reporting to AFLOA/

JAJM is essential because national security cases often involve issues such as searches, 

seizures, immunity grants, polygraphs, etc., as well as the decision whether to prosecute and, if so, which department will prosecute. Under no circumstances should a 

unit commander or an SJA take action initiating the court-martial process in a case 

potentially involving national security issues until AFLOA/JAJM has coordinated the 

case with DOJ through appropriate DoD channels.

References

Manual for Courts-Martial, United States (2012)

DoDI 5525.07, Implementation of the Memorandum of Understanding (MOU) Between the 

Departments of Justice and Defense Relating to the Investigation and Prosecution of Certain 

Crimes (18 June 2007)

AFI 31-501, Personnel Security Program Management, Chapter 8 (27 January 2005), incorporating 

through Change 2, 29 November 2012, including AFGM2015-1, 20 November 2015

AFI 36-3207, Separating Commissioned Officers (9 July 2004), incorporating through Change 6, 

18 October 2011

AFI 36-3208, Administrative Separation of Airmen (9 July 2004), incorporating through Change 7, 

2 July 2013, including AFI36-3208_AFGM2016-01, 24 June 2016

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016
CHAPTER FIVE Criminal and Military Justice 157

SEXUAL ASSAULT PREVENTION AND RESPONSE

Sexual assault is criminal conduct. It falls well short of the standards America expects of 

its men and women in uniform and civilian members. It violates Air Force Core Values. 

Inherent in our Core Values of Integrity First, Service Before Self, and Excellence in All We 

Do is respect: self-respect, mutual respect, and respect for our Air Force as an institution. 

Our core values and respect are the foundation of our Wingman culture; a culture in which 

we look out for each other and take care of each other. Incidents of sexual assault corrode 

the very fabric of our Wingman culture; therefore we must strive for an environment 

where this behavior is not tolerated and where all Airmen are respected.

- Air Force Sexual Assault Prevention and Response policy and responsibilities apply 

to all levels of command and all Air Force organizations and personnel, including 

active duty, Air Force government civilian employees, Air Force Academy, Air National 

Guard, and Air Force Reserve components while in federal service

- Installation commanders will implement local sexual assault prevention and response 

programs. The installation vice commander or equivalent may be designated as the 

responsible official to act for the installation commander and supervises the Installation Sexual Assault Response Coordinator.

Definition of Sexual Assault

- Sexual assault is the intentional sexual contact, characterized by use of force, threats, 

intimidation, abuse of authority or when the victim does not or cannot consent. It 

includes rape, forcible sodomy (oral or anal sex), and other unwanted sexual contact 

that is aggravated, abusive or wrongful (to include unwanted and inappropriate 

sexual contacts), or attempts to commit these acts.

- This definition is for training and educational purposes only and does not affect in any 

way the definition of any offenses under the UCMJ. Commanders are encouraged to 

consult with their staff judge advocate for complete understanding of this definition 

in relation to the UCMJ.

Installation Sexual Assault Prevention and Response Office

- Sexual Assault Response Coordinator (SARC)

-- The SARC serves as the single point of contact for integrating and coordinating 

sexual assault victim care from an initial report of sexual assault, through disposition and resolution of issues related to the victim’s health and well-being
158 The Military Commander and the Law

-- Reporting directly to the installation vice wing commander, the SARC implements and manages the installation level sexual assault prevention and response 

programs

-- The SARC is responsible for assisting commanders in meeting annual sexual 

assault prevention and response training requirements

-- The SARC is responsible for ensuring a victim support system that provides a 

24 hours a day/7 days a week sexual assault response capability for all victims 

that fall under the SAPR program within his/her designated area of responsibility

-- The SARC will provide updates to the victim and commanders as appropriate 

and in accordance with Air Force policy

-- The SARC will supervise the Sexual Assault Prevention and Response Victim 

Advocate (VA) and Volunteer Victim Advocates (VVA)

- Sexual Assault Prevention and Response VA and VVAs

-- Responsibilities of SAPR VAs and VVAs include providing crisis intervention, referral, and ongoing non-clinical support, including information on available options 

and resources to assist the victim in making informed decisions about the case. 

VA services will continue until the victim states support is no longer needed.

-- SAPR VAs and VVAs must possess the maturity and experience to assist in a very 

sensitive situation

--- SAPR VAs are GS-11 civilian employees who work full-time in the SAPR office

--- VVAs are volunteers

---- Only active duty military personnel and DoD civilian employees selected 

by the SARC may serve as VVAs. They cannot be assigned to the legal 

office, Area Defense Counsel, Investigator General (IG), Air Force Office 

of Special Investigations (AFOSI), Security Forces Squadron (SFS), Equal 

Opportunity (EO) office, or wing chaplain’s office.

---- Individuals on G-series orders, first sergeants, and chief master sergeants 

cannot serve in this capacity

---- Medics can serve as VVAs if they do not participate in “direct patient care”
CHAPTER FIVE Criminal and Military Justice 159

-- SAPR VAs and VVAs do not provide counseling or other professional services to 

a victim. Appropriate agencies will provide clinical, legal, and other professional 

services.

-- SAPR VAs and VVAs may accompany the victim, at the victim’s request, during 

investigative interviews and medical examinations

- SARCs', SAPR VAs’, and VVAs’ communications with victims (of a sexual or violent 

offense) are privileged under Military Rule of Evidence 514 when the communication 

is intended to be confidential and the perpetrator is a military member. Consult the 

local legal office for additional exceptions to this general rule.

Commander’s Response to Allegations of Sexual Assault

- Commanders notified of a sexual assault must take immediate steps to ensure the 

victim’s physical safety, emotional security, and medical treatment needs are met, 

and that the AFOSI or other appropriate criminal investigative agency is notified

-- Commanders and anyone in the victim’s chain of command are mandatory 

reporters that must report a sexual assault to AFOSI

-- Commanders and others in the victim’s chain of command cannot keep a report 

of sexual assault restricted

-- Commanders should also refer to the section of this chapter titled “Command 

Response to Sexual Assault” for further details regarding their responsibility

- The appropriate commanders should determine whether temporary reassignment 

or relocation of the victim or subject is appropriate

- Commanders should consider whether no contact orders or Military Protective 

Orders (DD Form 2873) are required

- Personnel Reliability Program (PRP): A sexual assault victim certified under the PRP 

is eligible for both the restricted and unrestricted reporting options

-- If electing restricted reporting, the victim is required to advise a medical clinic 

provider of any factors that could have an adverse impact on the victim’s performance, reliability, or safety while performing PRP duties. If necessary, the 

medical clinic will inform the commander that the person in question should be 

temporarily suspended from PRP status, without revealing that the person is a 

sexual assault victim, thus preserving the restricted report.
160 The Military Commander and the Law

- Required Reports:

-- 24-Hour Notification: The SARC will complete and submit the 24-hour Notification for all restricted or unrestricted reports to the Installation Commander 

as a standalone report via an encrypted, unclassified e-mail. The Installation 

Commander will forward a copy to the MAJCOM SARC who will forward to the 

MAJCOM/CV and AF/CVS.

-- Sexual Assault Incident Response Oversight (SAIRO) Report: The commander is 

responsible for completing an eight-day incident report for all unrestricted and 

independent reports in which the victim or subject is a service member. 

--- Normally, it will be the victim’s immediate commander that will complete 

the SAIRO. However, when the victim is a civilian the subject’s commander 

will complete the SAIRO. 

--- The purpose of the SAIRO is to detail the actions taken or in progress to 

provide the necessary care and support to the victim of the assault, to ensure 

that allegations of sexual assault are referred to the appropriate investigatory 

agencies, and to provide initial notification of the serious incident to appropriate commanders. AFI 90-6001, Sexual Assault Prevention and Response 

(SAPR) Program, Fig. 3.1 and Attachment 3 provide detailed guidance and a 

template for the SAIRO. 

--- SAIROs are not completed for sexual assault cases handled by the Family 

Advocacy Program

-- Commanders Critical Information Requirement (CCIR): The CCIR provides timely 

information to Air Force leadership when an allegation of sexual assault meets 

specific criteria

--- Criteria include: Involvement of an O-6 commander (or equivalent), potential 

for media attention, Congressional involvement, an overturned conviction, 

other factors warranting higher level command awareness

--- This is a separate report from the 24-hour notification and SAIRO Report listed 

above but may be accomplished at the same time

--- A CCIR is provided to the installation Command Post for submission as an 

OPREP-3 in accordance with AFI 10-206, Operational Reporting, and the current CSAF OPREP-3 Reporting Matrix, Rule 3D

--- A CCIR is not completed for restricted reports
CHAPTER FIVE Criminal and Military Justice 161

SARP Response to Allegations of Sexual Assault

- Upon notification if the Victim desires SAPR services

-- The SAPR office will determine program eligibility using the definition listed 

above for education and training purposes

--- SAPR services are available to active duty service members, dependents 

18 years of age and older, reservists and guardsmen and Air Force civilian 

employees. DoD Civilian employees (Army, Navy and Marine), their dependents 18 years of age and older, outside the continental United States 

(OCONUS) and contractor employees are eligible in contingency areas if they 

are eligible for treatment in the military treatment facility

--- SAPR services are not available for victims who are assaulted by their spouse 

and child victims. Due to the heightened risk of violence, those cases are 

handled by the Family Advocacy Program (FAP) and must be referred to FAP. 

--- Victims can be referred to FAP through command or by the SARC once it is 

determined FAP services are the most appropriate care

---- In cases where the subject and victim are unmarried intimate partners, 

the case will be referred to FAP

---- However, if the victim chooses not to engage in FAP services, victim may 

choose SAPR services

-- The SARC, SAPR VA, or on-call VVA will meet with the victim and discuss the 

restricted and unrestricted reporting options

--- Unrestricted Reports: An unrestricted report of sexual assault will result in a 

formal investigation and must be reported to AFOSI

---- Any report of a sexual assault made through the victim’s chain of command, law enforcement, and the AFOSI, or other criminal investigative 

service is an unrestricted report

---- The victim can also elect to make an unrestricted report
162 The Military Commander and the Law

--- Restricted Reports: Restricted reports will not be referred to AFOSI for investigation. A restricted report can only be made to a SARC, SAPR VA, VVA, or 

healthcare provider.

---- Restricted reporting is intended to give a victim additional time and 

increased control over the release and management of the victim’s personal information, and to empower the victim to seek relevant information and support to make an informed decision about participating in 

the criminal process

---- Only military personnel and Air Force civilian employees may make 

restricted reports. Dependents and Reservists not on Title 10 orders 

cannot make restricted reports. 

---- Restricted reports may be disclosed only under very limited circumstances, e.g., a serious or imminent threat to life.

--- Independent Investigations (also referred to as third party reports): Should 

information about a sexual assault be disclosed to command or law enforcement from sources independent of the victim (such as a friend or witness), 

and an investigation into an allegation of sexual assault is initiated, that 

report is considered an independent investigation. An official investigation 

may be initiated based on that independently acquired information. 

---- When the SARC or SAPR VA learns that a law enforcement official has 

initiated an official investigation that is based upon independentlyacquired information and after consulting with the law enforcement 

official responsible for the investigation, the SARC or SAPR VA will notify 

the victim, as appropriate

---- If the victim has already made a restricted report, covered communications from the restricted report will not be released for the investigation 

unless the victim authorizes the disclosure in writing or another exception applies
CHAPTER FIVE Criminal and Military Justice 163

-- Assignment of a Victim Advocate (full-time or volunteer)

--- A VA may be assigned to the victim. To the extent practicable, the assigned 

VA will not be from the same unit as the victim. 

--- The VA will provide support throughout the process. The VA will provide 

referral and ongoing non-clinical support to the victim. 

--- Services will continue until the victim indicates services are no longer required, 

or the SARC makes this determination based on the victim’s response to offers 

of assistance

Other SAPR Related Issues

- Expedited Transfers (ET)

-- An ET provides victims who file an unrestricted report of sexual assault the option 

of a permanent change of station (PCS) or a temporary or permanent change 

of assignment (PCA) to a location that will assist with the immediate and future 

welfare of the victim, while also allowing them to move to locations that can offer 

additional support to assist with healing, recovery, and rehabilitation

-- An ET is only available for active duty victims

-- Victims will only be eligible to receive one facilitated ET for an unrestricted report 

of sexual assault. Multiple reassignment requests for the same reported incident 

are only considered in exceptional circumstances.

-- Process:

--- The victim, with the assistance of the SARC, makes the request for an expedited transfer

--- The victim’s commander (or equivalent) makes a recommendation to the 

host wing/installation commander for approval or disapproval. The victim's 

commander should base his or her recommendation upon all available 

information, especially that provided by AFOSI, and after consultation with 

the staff judge advocate (SJA). The victim's commander should recommend 

approval if he or she finds a credible report of sexual assault exists. 

--- The host wing/installation commander makes a decision which, if approved, 

is forwarded by the victim through the virtual MPF to AFPC for transfer orders 
164 The Military Commander and the Law

--- The process from request through host wing/installation commander’s decision must take no more than 72 hours

--- If disapproved by the wing/installation commander, the victim may appeal 

to the first/next general officer in the chain of command. If disapproved at 

this level the victim may make a final appeal to the MAJCOM/CV.

- Victims in FAP cases may also request an expedited transfer. The process is the same. 

The SARC will facilitate the process which can be found in AFI 40-301, Family Advocacy Program.

- Subjects may be transferred in the best interest of the Air Force. This is a separate 

process that is initiated by a commander through the local Military Personnel Flight 

(MPF). Additional guidance may be found in AFI 36-2110, Assignments, Attachment 26.

- Case Management Group (CMG) Meetings

-- SARCs and commanders, along with AFOSI, medical, SJA, and others, meet 

monthly to discuss reports of sexual assault on the installation. The CMG is convened to address cohesive emotional, physical, and spiritual care of a victim in 

a collaborative environment. The CMG will not discuss FAP, spouse or intimate 

partner cases. This CMG is chaired by the host wing or vice wing commander.

-- The CMG will also discuss instances of retaliation

-- The victim’s commander is a mandatory member of the CMG and he/she may not 

delegate the responsibility to attend the CMG. Within 72 hours after the CMG the 

commander will provide the victim with an update regarding the investigation, 

medical, legal, status of an expedited transfer request, any other request made 

by the victim, command proceedings regarding the sexual assault from the date 

the investigation was initiated until there is a final disposition of the case.

- Retaliation

-- Air Force personnel who file an unrestricted or restricted report of sexual assault 

will be protected from reprisal, coercion, ostracism, maltreatment, retaliation, 

or threat of reprisal, coercion, ostracism, maltreatment or retaliation, for filing 

a report

-- If a commander becomes aware of retaliation they may refer the victim to the 

SARC, IG, or EO to assist with resolution. If referred to the SARC he or she will 

inform, with victim consent, the IG and the SJA.
CHAPTER FIVE Criminal and Military Justice 165

-- In addition to protections for those who make a report to the SARC, no military 

member can retaliate against any alleged victim or other military member who 

reports a criminal offense (of any kind)

--- This provision in AFI 36-2909, Professional and Unprofessional Relationships, 

also prohibits members from maltreating or ostracizing any person who 

reports a criminal offense

--- A violation of this provision is considered a violation of a lawful general order 

or regulation, which means a violation of the AFI can be punished under 

UCMJ, Art. 92

-- At every CMG meeting, the CMG Chair will ask the CMG members if the victim, 

witnesses, bystanders (who intervened), SARCs and SAPR VAs, responders, or 

other parties to the incident have experienced any incidents of coercion, retaliation, ostracism, maltreatment, or reprisals. If any incidents are reported, the 

installation commander will develop a plan to immediately address the issue. The 

coercion, retaliation, ostracism, maltreatment, or reprisal incident will remain on 

the CMG agenda for status updates, until the victim’s case is closed.

- Addressing Victim Misconduct:

-- An investigation into the facts and circumstances surrounding an alleged sexual 

assault may develop evidence that the victim engaged in misconduct like underage drinking or other related alcohol offenses, adultery, drug abuse, fraternization or other violations of instructions, regulations, or orders

-- In accordance with the UCMJ, the Manual for Courts-Martial (MCM), and AFIs, 

commanders are responsible for ensuring victim misconduct is addressed in a 

manner that is consistent and appropriate to the circumstances

-- The disposition authority, the commander that makes the determination as to 

whether action should be taken and the appropriate level of action, for victim 

misconduct is the first O-6 Special Court-Martial Convening Authority in the 

chain of command

-- Commanders have the authority to determine the appropriate disposition of 

alleged victim misconduct, to include deferring disciplinary action until after 

disposition of the sexual assault case. When considering what corrective actions 

may be appropriate, commanders must balance the objectives of holding members accountable for their own misconduct with the intent to avoid unnecessary 

additional trauma to sexual assault victims and to encourage reporting of sexual 
166 The Military Commander and the Law

assaults, the gravity of any collateral misconduct by the victim and its impact on 

good order and discipline should be carefully considered in deciding what, if any, 

corrective action is appropriate.

-- Special Victims’ Counsel and/or Area Defense Counsel may be representing victims on matters of victim misconduct

-- Commanders are expected to consult with their servicing staff judge advocate 

and use appropriate personnel actions to resolve any allegations

-- Administrative separation actions involving victims of sexual assaults will be 

processed as required by the applicable AFI

--- When a commander proposing administrative or medical separation action 

was previously aware, or is made aware by the respondent or others, that 

the member has filed a past complaint, allegation, or charge that they were 

a victim of sexual assault, the proposing commander shall ensure the separation authority is aware that the discharge proceeding involves a victim of 

sexual assault 

--- The separation authority must be provided sufficient information concerning 

the alleged assault and the victim’s status to ensure a full and fair consideration of the victim’s military service and particular situation

--- An Airman who is being recommended for an involuntary separation has the 

right to request the General Court-Martial Convening Authority review his or 

her discharge if they believe their separation was initiated in retaliation for 

making an unrestricted report of sexual assault with the 12 months prior to 

the notification of the discharge
CHAPTER FIVE Criminal and Military Justice 167

References

DoD 6025.18-R, DoD Health Information Privacy Regulation (24 January 2003) 

DoDI 6495.02, Sexual Assault Prevention and Response Program Procedures (28 May 2013), 

incorporating Change 2, 7 July 2015

DoDD 6495.01, Sexual Assault Prevention and Response (SAPR) Program (23 January 2015), 

incorporating Change 2, 20 January 2015

Memorandum, Under Secretary of Defense for Personnel and Readiness, Increased 

Victim Support and a Better Accounting of Sexual Assault Cases (JTF-SAPR-002) 

(22 November 2004) 

AFI 10-206, Operational Reporting (11 June 2014), certified current, 18 March 2015, including 

AFI10-206_AFGM2016-01, 21 July 2016 

AFI 36-2110, Assignments (22 September 2009), incorporating through Change 2, 8 June 2012, 

including AFI36-2110 _AFGM2016-01, 23 June 2016

AFI 36-2909, Professional and Unprofessional Relationships (1 May 1999), including 

AFI36-2909_AFGM2016-01, 15 June 2016

AFI 36-3208, Administrative Separation of Airmen (9 July 2014), incorporating through Change 7, 

2 July 2013, including AFI36-3208_AFGM2016-01, 24 June 2016

AFI 40-301, Family Advocacy Program (16 November 2015)

AFPD 90-60, Sexual Assault Prevention and Response (SAPR) Program, 2 October 2014

AFI 90-6001, Sexual Assault Prevention and Response (SAPR) Program (21 May 2015), 

incorporating Change 1, 18 March 2016

Memorandum, Department of the Air Force Policies and Procedures for the Prevention of and 

Response to Sexual Assault (8 June 2005)
168 The Military Commander and the Law

SPECIAL VICTIMS' COUNSEL PROGRAM

The Special Victims’ Counsel (SVC) program was created in 2013. The SVC program was 

authorized in order to empower victims of sex offenses through the military legal system 

by allowing for a confidential, attorney-client relationship between an SVC and a qualifying victim. This relationship gives victims a voice and a choice in the legal process, and 

provides victims with an attorney who will advocate on the victim’s behalf to protect the 

victim’s rights throughout the legal process.

Objectives

- The objectives of the Air Force Special Victims’ Counsel Program are:

-- Provide victims of assault, stalking, and other sexual misconduct with independent, attorney-client privileged representation throughout the investigation/

prosecution processes

-- Empower victims by providing professional and knowledgeable counsel to 

enable them to express their choices

-- Provide advocacy to protect the rights afforded to victims in the military justice 

system

Overview

- On 28 January 2013, the Air Force implemented a Special Victims' Counsel (SVC) 

Program by providing qualified Judge Advocates (JAGs) to represent sexual assault 

victims

- The FY14 National Defense Authorization Act (NDAA) mandated the Military Services 

to provide Special Victims’ Counsel and amended 10 U.S.C. § 1044 (adding subparagraph (e))

Eligibility for Representation

- Certain categories of victims of sexual assault, stalking, and other sexual misconduct 

are eligible for SVC representation

-- Air Force members (active duty and reserve/guard in Title 10 status at the time 

of the offense)
CHAPTER FIVE Criminal and Military Justice 169

-- Dependents of Air Force members if the perpetrator is a military member subject 

to the UCMJ

-- DoD Civilians

-- Other service members and their dependents if the perpetrator is a military 

member subject to the UCMJ (individuals will be referred to their respective 

Service SVC or Victims’ Legal Counsel Programs)

-- Basic Military Training and Technical Training students who are involved in an 

unprofessional relationship that involves physical contact of a sexual nature with 

faculty or staff if the incident occurs within the first 6 months of their service

- The Chief, Special Victims’ Counsel Division, AFLOA/CLSV, or designee, has the final 

authority on determination of eligibility and may grant exceptions to policy on a 

case-by-case basis consistent with 10 U.S.C. §§ 1044, 1044e and 1565b

Notifying Victims of Availability of Special Services

- The first individual to make contact with the victim, such as the Sexual Assault 

Response Coordinator (SARC), Victim Advocate (VA), Family Advocacy representative, investigator, Victim Witness Assistance Program (VWAP) Liaison or trial counsel, 

is required to inform the victim of the availability of SVC services

-- SVCs are not permitted to solicit clients. Victims must request an SVC in order for 

services to be rendered.

Scope of Representation

- An SVC’s sole role is to represent victims in a confidential, attorney-client relationship, 

throughout the investigation and prosecution processes

-- Military Justice Advocacy: SVCs enable victims to assert their rights under Article 

6b, UCMJ

--- SVCs advocate for a victim’s interests to commanders, convening authorities, 

staff judge advocates, prosecutors, defense counsel, and military judges; 

attend interviews with investigators, trial and defense counsel; attend Article 

32 hearings and courts-martial, including in-court representation (such as 

motions to assert Article 6b, UCMJ rights, Military Rules of Evidence (MRE) 

412/513/514 and other evidentiary/legal rights); assist with post-trial submissions to the convening authority; assist with transitional compensation; 
170 The Military Commander and the Law

advise on VWAP, and the responsibilities and support provided by the SARC 

and VA

-- Advocacy to Air Force and DoD Agencies: SVCs assist with expedited transfer; 

address safety concerns (Military Protective Orders/Temporary Restraining 

Orders/altering working conditions); assist with access to medical/mental health 

care; address work-place concerns (such as retaliation or peer ostracism); and 

advise on military benefits

-- Collateral Misconduct: SVCs may represent in conjunction with a military defense 

counsel or solo. Collateral misconduct is defined as victim misconduct that might 

be in time, place, or circumstance associate with the victims’ sexual assault incident. It is often one of the most significant barriers to reporting an assault due 

to fear of punishment.

-- Advocacy to Civilian Prosecutors and Agencies: SVCs may advise on United States 

civilian criminal jurisdiction and may advocate a victim’s interest to civilian prosecutors or agencies. SVCs may not represent victims in civilian court.

-- Legal Consultation: SVCs may consult on potential for civil litigation against parties other than DoD

-- Traditional Legal Assistance: SVCs may provide traditional legal assistance or may 

refer victim to a local legal office to provide traditional legal assistance

Special Victims' Counsel (SVC)

- The SVC is a certified judge advocate designated by The Judge Advocate General to 

represent the interests of victims of sexual assault

- No SVC is assigned to the local chain of command. The SVC chain of command flows 

through regional SVC circuits to the Chief, Special Victims’ Counsel Division, Air Force 

Legal Operations Agency, Joint Base Andrews.

-- The SVC’s responsibility is to zealously advocate for their client, assist victims by 

helping them understand the investigatory and military justice process, and to 

advocate for the victim to command or a court-martial when necessary

-- The SVC is an advocate for the client, not an advisor for the command or the legal 

office. The SVC office is typically co-located with the SARC.

-- SVCs are not located at every base, rather they are assigned to represent victims 

within a particular region of military bases
CHAPTER FIVE Criminal and Military Justice 171

- If an active duty military member who is the victim of a sexual assault requests an 

SVC, refer them to the legal office or the SARC who will coordinate representation

-- Civilians, with no affiliation to the military, are not entitled to SVC representation 

--- Exceptions are civilian dependents, Reservists, or National Guard members 

who were serving on active duty at the time of the offense, and DoD civilians

-- SVCs generally do not represent victims in any disciplinary action. SVCs refer 

those clients to the ADC. However, SVCs may work with the ADC regarding collateral misconduct related to the sexual assault.

References

UCMJ Art. 6b 

10 U.S.C. § 1044e

AFI, 51-504, Legal Assistance, Notary, and Preventive Law Programs (27 October 2003), 

incorporating through Change 3, 24 May 2012
172 The Military Commander and the Law

COMMAND RESPONSE TO SEXUAL ASSAULT

The Air Force’s response to sexual assault is both proactive and reactive. On both fronts 

the Air Force utilizes a multidisciplinary approach. On the proactive front, the Sexual 

Assault Prevention and Response (SAPR) office is the lead agency for prevention. Prevention addresses a number of areas such as education and establishing an appropriate Air 

Force climate. The SAPR office has the lead in the area of sexual assault prevention, but 

every Airman and every agency must play a role for prevention to work. The Air Force 

responds to sexual assault as an institution, but a number of specific agencies respond to 

individual cases depending on the facts of the case. A broad range of agencies respond 

to individual cases. The SAPR office or Family Advocacy is typically one of those agencies. 

Others agencies include the Air Force Office of Special Investigations (AFOSI), the legal 

office, numerous medical and mental health providers, the chaplain’s office, a member’s 

chain of command and many others. Ultimately the member’s commander will also be 

involved. Commanders are responsible for the good order and discipline within their unit 

and therefore have unique responsibilities regarding their response to an allegation of 

sexual assault.

Command Action Unique to Sex Assault Cases

- The legal landscape in the area of sexual assault is changing very rapidly. There have 

been a host of legal changes in consecutive National Defense Authorizations Acts 

(NDAA) beginning in 2012. These NDAA changes resulted in sweeping legal changes 

to Federal Law (primarily in Chapter 10 of the United States Code), the UCMJ, Rules 

for Courts-Martial (RCM), Military Rules of Evidence (MRE) and numerous Air Force 

Instructions. 

- With so many legal changes and more likely to come, it is imperative commanders 

consult with their respective Staff Judge Advocate early on in any sexually related 

offense. Below are several important areas all commanders must be aware of and 

consider when dealing with any sexual offense.

-- Authority to Investigate: AFOSI is the lead agency to investigate sexual assault 

allegations regardless of the severity of the offense. A commander should not 

make a determination about investigating a sexual offense without first consulting both AFOSI and their respective staff judge advocate (SJA).

-- Disposition Authority: RCM 306 states: “Each commander has discretion to dispose of offenses by members of that command.” It also states: “A superior commander may withhold the authority to dispose of offenses in individual cases, 

types of cases, or generally.” The Secretary of Defense did just that with regard 
CHAPTER FIVE Criminal and Military Justice 173

to certain sexual offenses. This mandate known as “Initial Disposition Authority" is reiterated in AFI 51-201, Administration of Military Justice. The Secretary of 

Defense's (SecDef) order and AFI 51-201 both state the O-6 Special Court-Martial 

Convening Authority is the initial disposition authority for certain sexual assault 

cases and all offenses arising from or relating to the same incident(s). Initial 

reports of a criminal offenses are often unclear. Early collaboration between the 

command, AFOSI, and the judge advocate (JAG) is critical to ensure this Initial 

Disposition Authority Policy is complied with.

-- Mandatory Discharge for Perpetrator of Sexual Assault: Sexual assault and sexual 

assault of a child are incompatible with military service. In accordance with AFI 

36-3208, Administrative Separation of Airmen, a member found to have committed 

a sexual assault or sexual assault of a child will be discharged unless the member 

meets all of the specified retention criterial listed in the AFI. Sexual assault for 

the purposes of the instruction is defined very broadly. Again, JAG consultation 

is essential to ensure compliance with the AFI.

-- Discharging a Victim of a Sexual Assault: There are special discharge processing 

requirements for airmen who have made unrestricted reports of sexual assault. 

AFI 36-3208 provides victims the opportunity to request the General CourtMarital Convening Authority to review a discharge case if the victim made an 

unrestricted report of sexual assault within the 12 months prior to being notified 

of an involuntary discharge if that victim believed the discharge was initiated in 

retaliation for making the unrestricted report.

-- Mandatory General Court-Martial (GCM) and Statute of Limitations: Specified 

sexual assault offenses referred to a court-martial are now required to be 

referred to a GCM. This change in the UCMJ impacts a number of sexual assault 

offenses. In addition, UCMJ, Art. 56 makes a punitive discharge mandatory for 

a conviction of the same specified offenses under Article 18. Finally, UCMJ, Art. 

43 was amended and the statute of limitation was removed for certain sexual 

assault cases.

-- Victim Consultation: Victims have a number of rights under UCMJ, Art. 6b 

(addressed in the section on the Victim Witness Assistance Program). In an effort 

to ensure victims are accorded their rights; commanders and legal offices are 

required to consult with victims (of all crimes) prior to taking a number of military 

justice related actions. The list of actions is provided in AFI 51-201, para. 7.12.12.
174 The Military Commander and the Law

Addressing Victim Misconduct

- An investigation into the facts and circumstances surrounding an alleged sexual 

assault may develop evidence that the victim engaged in misconduct like underage 

drinking or other related alcohol offenses, adultery, drug abuse, fraternization, or 

other violations of instructions, regulations, or orders

-- In accordance with the UCMJ, the MCM, and Air Force Instructions, commanders 

are responsible for ensuring victim misconduct is addressed in a manner that is 

consistent and appropriate to the circumstances. 

--- A commander’s authority might be limited, based on the type of offense 

involved

--- Commanders are expected to consult with their servicing SJA and use appropriate personnel actions to resolve any allegations of victim misconduct

-- If not withheld by a superior authority, commanders have the authority to 

determine the appropriate disposition of alleged victim misconduct, to include 

deferring disciplinary action until after disposition of the sexual assault case

-- When considering what corrective actions may be appropriate, commanders 

must balance the objectives of holding members accountable for their own 

misconduct with the intent to avoid unnecessary additional trauma to sexual 

assault victims and to encourage reporting of sexual assaults

-- The gravity of any collateral misconduct by the victim and its impact on good 

order and discipline should be carefully considered in deciding what, if any, corrective action is appropriate

Commander Response to Allegations of Sexual Assault

- Commanders notified of a sexual assault through unrestricted reporting must take 

immediate steps to ensure the victim’s physical safety, emotional security, and medical treatment needs are met, and that the AFOSI or appropriate criminal investigative 

agency is notified

- Attachment 4 to the Air Force Sexual Assault Policy is a checklist for assisting commanders in responding to allegations of sexual assault. Its primary objective is to 

assist commanders in safeguarding the rights of the victim and the subject, as well as 

addressing appropriate unit standards and interests. In all cases, commanders should 

seek the advice of the SJA in using the checklist before taking action.
CHAPTER FIVE Criminal and Military Justice 175

- The appropriate commander should determine whether temporary reassignment or 

relocation of the victim or subject is appropriate, or possibly a permanent change of 

station, including humanitarian reassignment

- Commanders should consider whether no contact orders or Military Protective 

Orders (DD Form 2873) are required

- Sex Offender Registration: It is the policy of the DoD that any service member 

convicted in a general or special court-martial of any specified sexual offense must 

register with the appropriate authorities in the jurisdiction the service member will 

reside, work, or attend school upon leaving confinement (or upon conviction if not 

confined)

-- The specific offenses requiring a convicted member to register are listed in AFI 

51-201, sec. 13L.

References

UCMJ Arts. 6b, 18, 43, 56, 120, 120a, 120b, and 120c

National Defense Authorization Act for Fiscal Year 2014

10 U.S.C. § 113 (2014)

Rule for Courts-Martial 306 (2015)

Memorandum, Secretary of Defense, Withholding Initial Disposition Authority Under the Uniform 

Code of Military Justice in Certain Sexual Assault Cases (20 April 2012)

Memorandum, Under Secretary of Defense for Personnel and Readiness, Collateral

Misconduct in Sexual Assault Cases (JTF-SAPR-001) (12 November 2004)

DoDI 1325.07, Administration of Military Correctional Facilities and Clemency and Parole Authority

(11 March 2013)

AFPD 51-5, Military Legal Affairs (27 September 1993) 

AFI 31-105, Air Force Corrections System (15 June 2015) 

AFI 36-3208, Administrative Separation of Airmen (9 July 2004), incorporating through Change 7, 

2 July 2013, including AFI36-3208_AFGM2016-01, 24 June 2016

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016

AFI 71-101, Vol 1, Criminal Investigations Program, (8 October 2015), certified current 

17 December 2015

AFI 90-6001, Sexual Assault Prevention and Response (SAPR) Program (21 May 2015), 

incorporating Change 1, 18 March 2016
176 The Military Commander and the Law

AIR FORCE VICTIM WITNESS ASSISTANCE PROGRAM

The Air Force Victim and Witness Assistance Program (VWAP) provides guidance for the 

protection and assistance of victims and witnesses, enhances their roles in the military 

criminal justice process, and preserves the constitutional rights of an accused. VWAP 

is a multidisciplinary program established at the installation level. It has three primary 

objectives. Those objective are first, to mitigate the physical, psychological, and financial 

hardships suffered by victims and witnesses of offenses investigated by U.S. Air Force 

authorities; second, to foster cooperation between victims, witnesses, and the military 

justice system; and third, to ensure best efforts are extended to protect the rights of 

victims and witnesses.

Overview

- The Air Force Responsible Official (the person responsible for coordinating, implementing and managing) for the Air Force VWAP is The Judge Advocate General (TJAG) 

of the Air Force. The Local Responsible Official (LRO) at an Air Force base is the installation commander or the Special Court-Martial Convening Authority. The LRO often 

delegates LRO duties to the Installation Staff Judge Advocate (SJA).

- The SJA appoints a VWAP Coordinator to implement and manage the VWAP. The 

VWAP Coordinator is also responsible for annual training and can serve as a Victim 

Liaison.

- Victim Liaison is an individual appointed by the LRO or delegate to assist a victim during the military justice process. Communications between a victim and victim liaison 

are NOT considered confidential for the purposes of Military Rule of Evidence 514.

- Each agency (Office of the Staff Judge Advocate (JA), Security Forces, Air Force Office 

of Special Investigations (AFOSI), Chaplin (HC) and Medical Group (MDG)) is responsible for training personnel on their responsibilities. The SJA trains commanders and 

first sergeants.

- Each installation should prepare an information packet modeled after figure 7.3 of 

AFI 51-201, Administration of Military Justice, and provide the packet to each victim/

witness. See also DD Form 2701, Initial Information for Victims and Witnesses of Crime; 

DD Form 2702, Court-Martial Information for Victims and Witnesses of Crime; and DD 

Form 2703, Post-Trial Information for Victims and Witnesses of Crime.
CHAPTER FIVE Criminal and Military Justice 177

Victim Rights

- Article 6b of the UCMJ established eight rights for crime victims. These rights can 

be enforced by the Court of Criminal Appeals through a Writ of Mandamus. For the 

purposes of Article 6b and VWAP a victim is defined as a person who suffered direct 

physical, emotional, or pecuniary harm as a result of the commission of an offense 

under the UCMJ. There is no burden of proof for these rights to apply. A victim has 

the right:

-- To be reasonably protected from the accused

-- To reasonable, accurate, and timely notice of specified hearings

-- Not to be excluded from any public hearing or proceeding

-- To be reasonably heard at specified hearings

-- To confer with government counsel for proceeding

-- To receive restitution as provided by law

-- To proceedings free from unreasonable delay

-- To be treated with fairness and with respect for his/her dignity and privacy

LRO Responsibilities to Crime Victims

- In addition to the proceeding victims’ rights, the LRO also has specific responsibilities 

toward crime victims under VWAP

-- Inform eligible victims of the ability to consult with special victims’ counsel and 

or a legal assistance attorney

-- Inform victims about sources of medical and social services

-- Inform victims of restitution or other relief to which they may be entitled

-- Assist victims in obtaining financial, legal, and other social services

-- Inform victims concerning protection against threats or harassment
178 The Military Commander and the Law

-- Provide victims notice of the status of investigation or court-martial, preferral 

of charges, acceptance of a guilty plea or announcement of findings, and the 

sentence imposed

-- If administrative action is taken

--- LRO may reveal “appropriate administrative action was taken”

--- LRO MAY NOT reveal the specific action taken, e.g., Article 15 punishment, 

because it is not public knowledge and is protected by the Privacy Act

-- Safeguard the victim’s property if taken as evidence and return it as soon as 

possible

--- Evidence in a sexual assault case will be returned to the victim as soon as all 

legal, adverse action, or administrative proceedings are complete

-- Consult with victims and consider their views on preferral of court-martial 

charges, pretrial restraint, dismissal of charges, pretrial agreements, discharge 

in lieu of court-martial, and scheduling of judicial proceedings. Although victims’ 

views should be considered, nothing in the VWAP limits the responsibility and 

authority of officials involved in the military justice process from taking any action 

deemed necessary in the interest of good order and discipline and/or preventing 

service discrediting conduct.

-- Designate a victim liaison when necessary

LRO Responsibilities to All Witnesses

- Notify authorities of threats and assist in obtaining restraining orders

- Provide a waiting area removed from and out of the sight and hearing of the accused 

and defense witnesses

- Assist in obtaining necessary services such as transportation, parking, child care, 

lodging, and court-martial translators/interpreters

- If the victim/witness requests, take reasonable steps to inform his/her employer of the 

reasons for the absence from work, as well as notify creditors of any serious financial 

strain incurred as a direct result of the offense
CHAPTER FIVE Criminal and Military Justice 179

- Provide victims and witnesses necessary assistance in obtaining timely payment of 

witness fees and related costs

- In cases involving adverse actions for the abuse of dependents resulting in the 

separation of the military sponsor, victims may be entitled to receive compensation 

under the Transitional Compensation program or under the Uniform Services Former 

Spouses Protection Act

References

UCMJ Art. 6b

Military Rules of Evidence 514 (2015)

DoDD 1030.01, Victim and Witness Assistance (13 April 2004), certified current 23 April 2007

DoDI 1030.2, Victim and Witness Assistance Procedures (4 June 2004)

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016
180 The Military Commander and the Law

TRANSITIONAL COMPENSATION FOR VICTIMS OF ABUSE

Federal legislation provides for transitional assistance to abused dependents of military 

members. The assistance provided can be an extension of benefits and/or a monetary 

pay for a set period of time. It is DoD policy to provide monthly transitional compensation payments and other benefits for dependents of members who are separated for 

dependent abuse. Applicants initiate requests for transitional compensation through 

the member’s unit commander or Military Personnel Flight (MPF).

Eligibility for Transitional Compensation

- Dependents of members of the armed forces who have been on active duty for more 

than 30 days and who, after 29 November 1993, are:

-- Separated from active duty under a court-martial sentence resulting from a 

dependent- abuse offense

-- Administratively separated from active duty if the basis for separation includes 

a dependent-abuse offense

-- Sentenced to forfeiture of all pay and allowances by a court-martial which has 

convicted the member of dependent-abuse offense

- Dependents are ineligible to receive any transitional compensation if they remarry, 

cohabitate with the member, or are found to have been an active participant in the 

dependent abuse

- Dependent abuse includes crimes such as sexual assault, rape, sodomy, battery, 

murder, and manslaughter

Types of Transitional Compensation

- Monthly monetary compensation (10 U.S.C. § 1059)

- Commissary and exchange benefits (10 U.S.C. § 1059)

- Medical and dental care (10 U.S.C. § 1076)
CHAPTER FIVE Criminal and Military Justice 181

Application Procedures

- Eligible dependents request transitional compensation by completing DD Form 2698, 

Application for Transitional Compensation

- Requests are made through the member’s unit commander or through the MPF at 

any Air Force installation when the applicant is no longer at the installation in which 

the member was assigned

- Unit representative will assist the dependent with the completion of DD Form 2698

- MPF commander will coordinate the package and obtain a written legal review from 

the SJA. The installation commander is the approval authority.

- If approved, transitional compensation can last between 12 and 36 months, depending on the circumstances

-- For cases approved 22 September 2014 and after, the compensation period will 

be 36 months

-- For cases approved prior to 2 September 2014, the compensation period is 

between 12 and 36 months

- The monthly amount for transitional compensation is set by Congress

-- In 2009, the compensation was set at $1154 per month, plus $286 for each 

dependent child

References

10 U.S.C. § 1059

10 U.S.C. § 1076

38 U.S.C. § 1311

DoDI 1342.24, Transitional Compensation for Abused Dependents (23 May 1995), incorporating 

Change 1, 16 January 1997

AFI 36-3024, Transitional Compensation for Abused Dependents (15 September 2003), 

incorporating Change 1, 4 December 2007, certified current 10 November 2009, including 

AFI36-3024_AFGM2015-01, 19 November 2015

DD Form 2698, Application for Transitional Compensation (January 1995)
182 The Military Commander and the Law

MEDIA RELATIONS IN MILITARY JUSTICE MATTERS

The Air Force must balance three important societal interests when there is media interest in military justice proceedings: protection of the accused’s right to a fair trial, the 

privacy rights of all persons involved in the proceedings, and the community’s right to 

be informed of and observe criminal proceedings.

Release of information relating to criminal proceedings is subject to the Privacy Act (PA), 

Freedom of Information Act (FOIA), victim and witness assistance protection laws, Air 

Force Rules of Professional Conduct, Air Force Standards for Criminal Justice, implementing directives, security requirements, classified information laws, and judicial orders. It 

is critical that commanders always consult with the staff judge advocate (SJA) before 

releasing any information about such proceedings.

Providing Information

- AFI 51-201, Administration of Military Justice, sec. 13D, covers the rules for releasing 

information pertaining to criminal proceedings. It prohibits release of information 

that could reasonably be expected to interfere with law enforcement proceedings 

or deprive a person of a right to a fair trial or an impartial adjudication in a criminal 

proceeding.

- The release of extrajudicial statements is a command responsibility. The convening 

authority (CA) responsible for the criminal proceeding makes the ultimate decision 

about release of extrajudicial statements relating to that criminal proceeding. Major 

command (or equivalent) commanders may withhold release authority from subordinate commanders.

- If a proposed extrajudicial statement is based on information contained in agency 

records, the office of primary responsibility for the record should also coordinate 

prior to release

- Rules for release of permissible extrajudicial statements are complex and vary according to the type of information to be released and its source, the type of proceeding, 

and the stage of the proceeding when the information is released

Extrajudicial Statements Generally

- Extrajudicial statements are oral or written statements made outside of a criminal 

proceeding that a reasonable person would expect to be disseminated by means of 

public communication
CHAPTER FIVE Criminal and Military Justice 183

- There are valid reasons for making certain information available to the public in the 

form of extrajudicial statements. However, extrajudicial statements must not be used 

to influence the course of a criminal proceeding

- Usually, extrajudicial statements should include only factual matters and should not 

offer subjective observations or opinions

Prohibited Extrajudicial Statements

- Extrajudicial statements relating to the following matters ordinarily have a substantial 

likelihood of prejudicing a criminal proceeding and generally should not be made 

about:

-- The existence or contents of any confession, admission, or statement by the 

accused, or the accused’s refusal or failure to make a statement

-- Observations about the accused’s character and reputation

-- Opinions regarding the accused’s guilt or innocence

-- Opinions regarding the merits of the case or the merits of the evidence

-- References to the performance of any examinations, tests or investigative procedures (e.g., fingerprints, polygraph examinations, and ballistics or laboratory 

tests), the accused’s failure to submit to an examination or test, or the identity 

or nature of physical evidence

-- Statements concerning the identity, expected testimony, disciplinary or criminal 

records, or credibility of prospective witnesses

-- The possibility of a guilty plea or other disposition of the case other than procedural information concerning such processes

-- Information government counsel knows or has reason to know would be inadmissible as evidence in a trial

-- Before sentencing, facts regarding the accused’s disciplinary or criminal record, 

including nonjudicial punishment, prior court-martial convictions, and other 

arrests, indictments, convictions, or charges. Do not release information about 

nonjudicial punishment or administrative actions even after sentencing, unless 

admitted into evidence. However, a statement that the accused has no prior 

criminal or disciplinary record is permitted.
184 The Military Commander and the Law

Permissible Extrajudicial Statements

- When deemed necessary by command, the following extrajudicial statements may 

be made regardless of the stage of the proceedings, subject to the limitations stated 

above (substantial likelihood of prejudice and prohibitions under FOIA, PA, and/or 

Victim Witness Assistance Program (VWAP)

-- General information to educate or inform the public concerning military law and 

the military justice system

-- If the accused is a fugitive, information necessary to aid in apprehending the 

accused or to warn the public of possible dangers

-- Requests for assistance in obtaining evidence and information necessary to 

obtain evidence

-- Facts and circumstances of an accused’s apprehension, including time and place

-- The identities of investigating and apprehending agencies and the length of the 

investigation, only if release of this information will not impede an ongoing or 

future investigation and the release is coordinated with the affected agencies

-- Information contained in a public record, without further comment

-- Information that protects the military justice system from matters that have a 

substantial likelihood of materially prejudicing the proceedings

--- Such information will be limited to that which is necessary to correct misinformation or to mitigate the substantial undue prejudicial effect of information or publicity already available to the public. This can include, but is not 

limited to, information that would have been available to a spectator at an 

open Article 32 investigation or an open session of a court-martial.

- The following extrajudicial statements may normally only be made after a CA has 

disposed of preferred charges by directing an Article 32 preliminary hearing or has 

referred the charges to court-martial, subject to the limitations stated above (substantial likelihood of prejudice and prohibitions under FOIA, PA, and/or VWAP):

-- The accused’s name, unit, and assignment

-- The substance or text of charges and specifications, provided there is a statement 

included explaining that the charges are merely accusations and that the accused 
CHAPTER FIVE Criminal and Military Justice 185

is presumed innocent until and unless proven guilty. As necessary, redact all 

VWAP and PA protected data from the charges and specifications.

-- The scheduling or result of any stage in the judicial process

-- Date and place of trial and other proceedings, or anticipated dates, if known

-- Identity and qualifications of appointed counsel

-- Identities of convening and reviewing authorities

-- A statement, without comment, that the accused has no prior criminal or disciplinary record or that the accused denies the charges

-- The identity of the victim where the release of that information is not otherwise 

prohibited by law. Generally, however, do not release information identifying 

victims, especially the names of children or victims of sexual offenses.

- Do not volunteer the identities of the court members or the military judge in material 

prepared for publication. Prerequisites for release are:

-- Release authorized after the court members or military judge have been identified in the court-martial proceeding; and

-- The CA’s SJA determines that release would not prejudice the accused’s rights or 

violate the members’ or military judge’s privacy interests

Article 32 Hearings

- Article 32 hearings should ordinarily be open to the public

-- Access by spectators to all or part of the proceeding may be restricted or foreclosed by the CA who directed the hearing or by the preliminary hearing officer 

(PHO) when, in that officer’s opinion, the interests of justice outweigh the public’s 

interest in access (e.g., protecting the safety or privacy of a witness, preventing 

psychological harm to a child witness, or protecting classified information)

-- CAs or PHOs must conclude that no lesser methods short of closing the preliminary hearing will protect the overriding interest in the case

-- If a CA or PHO orders a hearing closed, he/she must make specific findings of fact, 

in writing, for the closure, which must be attached to the PHO’s report
186 The Military Commander and the Law

Release of Information from Records of Trial or Related Records

- Once a completed record is forwarded, AFLOA/JAJM is the disclosure authority for 

all records and associated documents

Reducing Tension with the Media

- Command should take positive steps to reduce tension with the media

-- Have the SJA and public affairs officer (PAO) work together to develop a coordinated press release that explains how the military justice system works and how 

it compares and contrasts with the civilian system

-- Advise the media up-front of the prohibition against courtroom photography, 

television, and audio and visual recording, and provide an alternate location, 

room or office for media interviews, broadcasts, etc.

-- Provide reserved seating in the courtroom for at least one pool reporter and a 

sketch artist

-- Air Force representatives must not encourage or assist news media in photographing or televising an accused being held or transported in custody

References

The Freedom of Information Act, 5 U.S.C. § 552

The Privacy Act of 1974, 5 U.S.C. § 552a

Rule for Courts-Martial 405 (2015)

AFI 33-332, Air Force Privacy and Civil Liberties Program (12 January 2015)

AFI 35-101, Public Affairs Responsibilities and Management (12 January 2016)

AFI 35-104, Media Operations (13 July 2015)

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016
CHAPTER FIVE Criminal and Military Justice 187

ARREST BY CIVIL AUTHORITIES

When a commander receives notice from any source (e.g., a unit member, security forces 

(SF), or the Air Force Office of Special Investigations (AFOSI)) that a member of his/her 

command is being held by civilian authorities or is charged with a criminal offense, he/she 

should take prompt action.

Initial Actions Following Report of Service Member Arrest by Civilian Authorities

- The commander or a representative of the unit should contact the civilian authorities, 

inform them the person is a military member, and gather the following information:

-- The charge against the member

-- The facts and circumstances surrounding the charged offense; and

-- The maximum punishment the member faces

- If possible, make arrangements for the member’s return to military control

-- DO NOT state or imply the Air Force will guarantee the member’s presence at 

subsequent hearings

-- DO NOT post bond for the member or personally guarantee any action by the 

member (unless you are willing to accept personal responsibility and liability)

Release of Criminal Jurisdiction by Civilian Authorities to Military Authorities

- When a military member commits an offense off base in violation of both civilian 

(state law) and military law (which is federal law) (e.g., rape, robbery, murder) the 

member is subject not only to prosecution by the state, but also the military

- While prosecution by both the state and federal governments for the same offense is 

constitutionally permissible (separate sovereigns), Air Force policy is that if the state is 

prosecuting a member for an offense, the Air Force will not take UCMJ action against 

the member without approval of the Secretary of the Air Force (SecAF)

-- Air Force policy is to request criminal jurisdiction from applicable civilian 

authorities for any qualifying offenses (offenses also under military law) by service 

members
188 The Military Commander and the Law

-- The determination of which sovereign (state or federal) shall exercise jurisdiction 

should be made through consultation or prior agreement between appropriate 

Air Force and civilian authorities

-- Off-base offenses committed by a military member on active duty may be tried 

by court-martial or civilian courts. The question of personal military jurisdiction 

turns on the military status of the offender at the time of the offense, not where 

the offense occurred.

-- The court-martial convening authority will often request that the civilian authorities waive jurisdiction and permit the Air Force to prosecute the offender

-- The staff judge advocate (SJA) will assist in coordinating with the local authorities

- As a general rule, military status will not be used to avoid orders of civilian courts

Delivering Military Members Stationed in the United States to Civilian Authorities:

- Requests from federal authorities for members stationed in the United States will 

normally be granted when a warrant has been issued

- Requests by state authorities for members located in that state will normally be 

granted when the state produces documents preferring charges

-- The Air Force will not transfer a member from one state to another for purposes of 

making them amenable to prosecution by civilian authorities. The state seeking 

the member must proceed through normal civilian extradition channels.

-- Commanders will respond promptly to requests from civil authorities within 

the United States for assistance. A commander exercising general court-martial 

convening authority (GCMCA) jurisdiction, or an installation commander when 

authorized by the officer exercising GCMCA jurisdiction, may authorize delivery 

of a member of his or her command to federal or state civil authorities.

Delivering Military Members Stationed Overseas to Civilian Authorities

- A GCMCA, or an installation or equivalent commander designated by the GCMCA, 

shall order the return of a member from an overseas assignment, at government 

expense, if the member is convicted or charged with a felony or other serious offense 

(punishable by confinement for more than 1 year), or if the offense involves taking a 

child out of the jurisdiction of a court or from the lawful custody of another person
CHAPTER FIVE Criminal and Military Justice 189

-- In any lesser case, the GCMCA, or an installation equivalent commander designated by the GCMCA, may order the return of the member when deemed 

appropriate under the facts and circumstances of each particular case, following 

consultation with the SJA

--- Only the Under Secretary of Defense for Personnel and Readiness (USD P&R) 

may deny a request for delivery of a military member to federal, state, or local 

civilian authorities for a felony or for taking a child out of the jurisdiction of 

a court or from the lawful custody of another person. The Judge Advocate 

General may deny requests in all other cases, or grant a delay of not more 

than 90 days.

-- Consult with the SJA to route civilian requests for the return of a member from 

overseas through the Air Force Legal Operations Agency, Military Justice Division 

(AFLOA/JAJM), The Judge Advocate General (TJAG), and, if necessary, the USD P&R

-- A GCMCA, or his or her designee, may request denial of the civilian request based 

on one or more of the following reasons:

--- Loss of the member from the unit would have an adverse impact on operational readiness or mission accomplishment

--- An international agreement or other overriding legal requirement precludes 

the member’s delivery

--- Member is the subject of foreign judicial proceedings, a court-martial, or 

a U.S. military investigation such that the member cannot be immediately 

made available to civilian authorities

--- Member has demonstrated that non-compliance with the court order that 

is the subject of the request for delivery is legally justified, or sanctioned by 

supplemental court orders, equally valid court orders of other jurisdictions, 

good faith legal efforts to resist the original orders, or other legal reasons

Physical Restraint or Confinement Pending Delivery

- An Air Force member may be placed under physical restraint or confinement by 

his or her commander pending delivery to civilian authorities, provided there is a 

reasonable belief that the member committed the offense and a reasonable belief 

that restraint or confinement is necessary
190 The Military Commander and the Law

Civilians Associated with the Air Force

- Commanders ordinarily do not have authority to compel civilian compliance with 

court orders, but will strongly encourage civilians associated with their organizations 

to comply with valid orders of federal and state courts, to include the use of adverse 

administrative actions against civilian employees and withholding of official command sponsorship for military dependents, where appropriate

Military Members in Civilian Custody or Post-Conviction

- An AF IMT 2098, Duty Status Change, reflecting a duty status change must be prepared 

and forwarded to the military personnel flight when a member is in civilian custody

- If the member is convicted of an offense which would, if tried by court-martial, subject 

the member to a punitive discharge, the member is subject to involuntary administrative separation from the Air Force with a less than honorable service characterization 

(general or under other than honorable conditions discharge)

- If the member is convicted of an offense (or one closely related to an offense under 

the UCMJ) that would, if tried by court-martial, subject the member to a punitive 

discharge and confinement for one year or more, the commander must either recommend involuntary separation or submit a request for waiver of discharge. The decision 

should be made promptly, as an extended period of inaction may result in a waiver 

of the right to process the member for separation.

-- The member’s absence due to confinement in a civilian facility does not bar 

processing the member for separation, but an approved discharge may not be 

executed until the member is released and returned to the United States

-- The commander must obtain information from the civilian authorities concerning 

the final disposition of the case. The SJA, with the SF, or AFOSI, will assist.

-- If a member is charged with or convicted of an offense that does qualify for or 

warrant separation, various disciplinary actions, such as unfavorable information 

file (UIF), control rosters, or administrative reprimands, may still be appropriate. 

Consult with the SJA.
CHAPTER FIVE Criminal and Military Justice 191

References

UCMJ Art. 14

DoDI 5525.09, Compliance of DoD Members, Employees, and Family Members Outside the United 

States with Court Orders (10 February 2006)

DoDI 5525.11, Criminal Jurisdiction Over Civilians Employed by or Accompanying the Armed 

Forces Outside the United States, Certain Service Members, and Former Service Members 

(3 March 2005)

AFPD 51-10, Making Military Personnel, Employees, and Dependents Available to Civilian 

Authorities (19 October 2006), certified current 2 December 2012 

AFI 36-3207, Separating Commissioned Officers (9 July 2004), incorporating through Change 6, 

18 October 2011

AFI 36-3208, Administrative Separation of Airmen (9 July 2004), incorporating through Change 7, 2 

July 2013, including AFI36-3208_AFGM2016-01, 24 June 2016

AFI 51-1001, Delivery of Personnel to United States Civilian Authorities for Trial, (28 August 2014)

AF IMT 2098, Duty Status Change (30 June 2003)
192 The Military Commander and the Law

ADVISING SUSPECTS OF RIGHTS

At times, a commander, or any other person subject to the UCMJ, may need to question 

a member suspected of committing some other offense. When this arises, it is essential 

to follow the legal requirement of Article 31 of the UCMJ.

Overview

- It is essential that a commander understands when and how to advise a member of 

their Article 31 rights

-- When a commander, law enforcement, or any other person subject to the UCMJ, 

interrogates or requests any statement from an Airman suspected of an offense, 

that individual must first warn the Airman of their Article 31 rights

-- Proper rights advisement enables the government to preserve any admissions 

or confessions of an offense for later use as evidence for any purpose

-- Admissions or confessions made in response to a defective Article 31 rights 

advisement, or in the absence of a necessary Article 31 rights advisement, cannot normally be admitted as evidence at trial. Additionally, other evidence, both 

physical and testimonial, that may have been discovered or obtained as a result 

of the unadvised statements is usually inadmissible at trial.

- Advisement of rights for both military personnel and civilians is set out in the attached 

Advisement for Military Suspects and Advisement for Civilian Suspects located at the 

end of this chapter

When Article 31 Rights are Required

- When a person subject to the UCMJ, suspects someone (also subject to the UCMJ) 

of an offense, then starts interrogating or requests any statement from that individual, and those statements regard the offense of which the person is questioned 

or suspected

- When active duty members question members of the Individual Ready Reserve (IRR)

- An interrogation or request for a statement does not have to involve actual questions. 

Sometimes actions, if they are intended to elicit responses, are deemed to be interrogation. For example, a commander declares, “I don’t know what you were thinking, 
CHAPTER FIVE Criminal and Military Justice 193

but I’m assuming the worst,” while shrugging his shoulders and shaking his head. 

Even though the commander has not asked a question, his statement and actions 

could be deemed an interrogation because they were likely to elicit a response.

Who Must Provide Article 31 Rights Advisements?

- When the questioner is subject to the UCMJ and is acting in an official, law enforcement or disciplinary investigation or inquiry, or could reasonably be perceived to be 

acting in such capacity

- Military supervisors and commanders are presumed to be acting in a disciplinary 

capacity when questioning a subordinate. Supervisors and commanders are held to 

a high standard. When in doubt, give the rights advisement and consult with your 

staff judge advocate (SJA).

What Information Must the Article 31 Rights Advisement Include?

- Allegation must be specific enough so the suspect understands what offense you 

are questioning him/her about. 

-- Legal specifications are not necessary; lay terms are sufficient

-- General nature of the offense is sufficient but should be more than just reading 

the Article number of which the person is suspected of violating

- Right to remain silent

- Consequences of making a statement

- Although it is not necessary that the advisement be verbatim, best practice is to read 

the rights directly from the AFVA 31-231, Advisement of Rights, which is a wallet-size 

card with Article 31 rights advice for military personnel on one side and Fifth Amendment/Miranda rights for civilians on the other side

- Article 31 does not include a right to counsel, although one is provided in the Constitution. The right is listed on the rights advisement card, however, and should be 

included when reading Article 31 rights.
194 The Military Commander and the Law

Rights Advisement Must be Understood and Acknowledged by the Suspect

- Suspect Must: 

-- (1) Affirmatively acknowledge understanding of the rights; 

-- (2) Affirmatively waive their rights; and 

-- (3) Consent to make a statement without counsel present

- Consent to make a statement cannot be obtained by coercion, threats, or any other 

tactics utilized for the purpose of eliciting a false confession

- Be cautious when advising an intoxicated person of his rights. If significantly under 

the influence of drugs or an intoxicant, the individual may be legally incapable of 

knowingly and voluntarily waiving his rights.

- If a suspect wavers over whether or not to assert his/her rights, best practice is to 

clarify whether or not the suspect will waive his/her rights and not ask any further 

questions until all doubt is resolved

When to Stop Questioning

- If the individual indicates a desire to remain silent, stop questioning

-- This does not mean, however, that you cannot give the individual orders or directions on other matters

- If the suspect requests counsel, stop questioning

-- Inform the SJA and get advice before re-initiating any questioning

-- No more questions can be asked until counsel is present, or there has been a 

sufficient break in custody to permit the accused a meaningful opportunity to 

consult with counsel

Re-initiation of Questioning Following an Earlier Article 31 Rights Invocation

- There are three circumstances under which questioning may be re-initiated with a 

suspect following an earlier Article 31 rights invocation:

-- The suspect re-initiates the questioning
CHAPTER FIVE Criminal and Military Justice 195

-- You are questioning the suspect about a different offense

-- There has been a sufficient “break in custody” to permit the accused a meaningful 

opportunity to seek/consult with counsel

--- Rule of Thumb: 14-day break in custody is sufficient. Prior to the preferral of 

charges, if there is a 14-day break in custody between the initial rights invocation and the re-initiation of questioning, you are permitted to re-initiate 

questioning.

--- Shorter “breaks in custody” may also be permissible, so long as the accused 

has had a meaningful opportunity to seek/consult with counsel, in the interim

- Nonetheless, if a suspect has asserted their rights, do not speak to that individual 

again regarding the offense in question unless you have consulted with the SJA

Suspect Acknowledgement and Waiver of Article 31 Rights

- When possible, obtain the waiver in writing using AF IMT 1168, Statement of Suspect

- Have a witness present

- Try to get the statement in writing. A clearly handwritten statement by a suspect is 

preferred, but also consider having the suspect fill out the AF IMT 1168 electronically, 

if reasonable under the circumstances.

- If after electing to talk, a suspect changes their mind and decides to stop talking, 

stop all questioning!

- Prepare a memorandum for record after the session ends, including:

-- Where the session was held

-- What and when you advised the suspect

-- What the suspect said

-- What activities took place (suspect sat, stood, smoked, drank, etc.)

-- What the suspect’s attitude was (angry, contrite, cooperative, combative, etc.)

-- Duration of the session with inclusive hours
196 The Military Commander and the Law

References

UCMJ Art. 31

Maryland v. Shatzer, 559 U.S. 98 (2010)

United States v. Vaughters, 44 M.J. 377 (C.A.A.F. 1996)

United States v. Cohen, 63 M.J. 45 (C.A.A.F. 2006)

United States v. Jones, 73 M.J. 357 (C.A.A.F. 2014)

United States v. Gilbreath, 74 M.J. 1 (C.A.A.F. 2014)

Military Rules of Evidence 304 and 305 (2015)

AF Visual Aid 31-231, Advisement of Rights (2 May 2014)

AF IMT 1168, Statement of Suspect/Witness/Complainant (1 April 1998)

Attachments

Advisement for Military Suspects

Advisement for Civilian Suspects
CHAPTER FIVE Criminal and Military Justice 197

Advisement for Military Suspects

I am _______ (grade, if any, and name), member of the (Air Force Security Police/AFOSI). 

I am investigating the alleged offense(s) of _________________ of which you are suspected. I advise you that under the provisions of Article 31 UCMJ, you have the right to 

remain silent, that is, to say nothing at all. Any statement you do make, either oral or 

written, may be used against you in a trial by court-martial or in other judicial, nonjudicial 

or administrative proceedings. You have the right to consult with a lawyer prior to any 

questioning and to have a lawyer present during this interview. You have the right to 

military counsel free of charge. In addition to military counsel, you are entitled to civilian 

counsel of your own choosing at your own expense. You may request a lawyer at any time 

during this interview. If you decide to answer questions, you may stop the questioning 

at any time. Do you understand your rights? Do you want a lawyer? (If the answer is yes, 

cease all questions at this point). Are you willing to answer questions?

Advisement for Civilian Suspects

I am _______ (grade, if any, and name), a member of the (Air Force Security Police/AFOSI). 

I am investigating the alleged offense(s) of __________________of which you are suspected. I advise you that under the Fifth Amendment to the Constitution you have the 

right to remain silent, that is, say nothing at all. Any statement you make, oral or written, may be used as evidence against you in a trial or in other judicial or administrative 

proceedings. You have the right to consult with a lawyer and to have a lawyer present 

during this interview. You may obtain a civilian lawyer of your own choosing, at your own 

expense. If you cannot afford a lawyer, and want one, one will be appointed for you by 

civilian authorities before any questioning. You may request a lawyer at any time during 

this interview. If you decide to answer questions, you may stop the questioning at any 

time. Do you understand your rights? Do you want a lawyer? (If the answer is yes, cease 

all questions at this point). Are you willing to answer questions?
198 The Military Commander and the Law

INSPECTIONS AND SEARCHES

This discussion is only a general overview of the rules governing searches, seizures, and 

inspections. Because there are many legal considerations and technical aspects involved 

in this area, which are very fact dependent, it is necessary to seek legal advice from the 

legal office when questions arise.

Military law authorizes a commander to direct inspections of persons and property under 

his or her command and to authorize probable cause searches and seizures of persons 

and property under his or her command. However, a commander who authorizes a search 

or seizure must be neutral and detached from the case and facts. Therefore, the command 

functions of gathering facts and maintaining overall military discipline must remain 

separate from the legal decision to grant search authorization.

Most bases have centralized the search authorization role in the installation commander, 

who is also often the special court-martial convening authority. The installation commander has discretion to appoint, in writing, up to four military magistrates who may 

also authorize search and seizure (including apprehension) requests. Each magistrate 

must receive training provided by the staff judge advocate on search and seizure issues.

A commander should also know the difference between inspections/inventories and 

searches/ seizures. Understanding this distinction will help ensure crucial evidence can 

be introduced at trial.

Key Terms

- Searches: Examinations of a person, property, or premises, for the purpose of finding 

evidence for use in trial by court-martial or in other disciplinary proceedings

- Seizures: The meaningful interference with an individual’s possessory interest in 

property

- Inspections: Examinations of a person, property, or premises for the primary purpose 

of determining and ensuring the security, military fitness, or good order and discipline of your command

- Inventories: Administrative actions that account for property entrusted to military 

control

- Apprehension: The taking of a person into custody
CHAPTER FIVE Criminal and Military Justice 199

Searches

- A search may be authorized upon:

-- Persons subject to military law and under the commander’s command

-- Persons or property situated in a place under the commander’s command and 

control

-- Military property or property of a nonappropriated fund instrumentality (NAFI)

-- Property situated in a foreign country which is owned, used, occupied by or held 

in the possession of a member of your command

- A search may be authorized for the following types of evidence:

-- Contraband, e.g., drugs, unauthorized government property

-- Fruits of a crime, e.g., stolen property, money

-- Evidence of a crime, e.g., bloody stained clothing, weapon, fingerprints, bodily 

fluids

Probable Cause Searches

- As a general rule, probable cause must be present before a commander can legally 

authorize a search

-- Probable cause exists when there is a reasonable belief that the person, property, 

or evidence sought is located in the place or on the person to be searched

-- Probable cause may arise from your personal knowledge, hearsay, or written 

evidence, or both

-- The search authority will make a decision based on the “totality of the circumstances,” i.e., believability of information and specific known facts

-- An anonymous telephone call, by itself, does not justify a probable cause search

-- When relying on military working dogs to establish probable cause, the search 

authority should be aware of the dog’s successful training exercises as well as 

the dog’s actual record of success in similar search situations
200 The Military Commander and the Law

-- While not legally required, when requesting the authorization for a search, a 

witness should swear to the information used in finding probable cause. Commanders and military magistrates are authorized to administer oaths or affirmations for these purposes.

- The search may be an oral authorization to search, based upon probable cause, when 

exigent circumstances exist and there is a reasonable belief that a delay in obtaining authorization would result in the removal, destruction, or concealment of the 

property or evidence sought

Mechanics of a Search Request

- Refer the source of information to security forces who will investigate or refer to Air 

Force Office of Special Investigations (AFOSI)

- Do not personally investigate

- If the commander becomes knowledgeable of information which may justify a search

-- “Freeze” the situation (i.e., control access to the area to be searched, if within 

the commander’s control, so that the scene and potential evidence remain 

undisturbed)

-- Immediately notify Security Forces Office of Investigations or AFOSI

-- Note any incriminating evidence or statements

-- Coordinate facts that can be presented to the search authority to support a finding of probable cause with the legal office

Exceptions to Probable Cause Searches

- A search authorization is not required for the following searches:

-- Consent Searches:

--- Even if the search authority has authorized a search, ask for the consent from 

the individual whose person or property is to be searched. If a judge later 

rules that the search authorization was somehow improper, discovered evidence may still be admitted at trial if the individual consented to the search.

--- Consent must be voluntary 
CHAPTER FIVE Criminal and Military Justice 201

---- Consent cannot result from threats, coercion, or pressure, e.g., do not 

tell the suspect that if they do not consent you will obtain authorization 

anyway. Best practice is to have a third person present.

--- Mere acquiescence to a search is not sufficient to justify a consensual search. 

Consent must be clearly given and voluntary.

--- Consent may be orally given or in writing. Written consent is preferred. When 

possible, use AF IMT 1364, Consent for Search and Seizure.

--- You may request an individual to consent to a search regardless of whether 

there was a previously exercised the right to remain silent under UCMJ, Art. 

31 or an exercised right to counsel

--- The individual giving consent must have either an exclusive or joint interest 

in the premises or property to be searched

---- An assigned occupant of a dormitory room can consent to a search of 

the joint/common areas of the room

---- Only the individual who has the exclusive use of a separate closet, locker, 

or other part of the premises may consent to a search of those areas

---- If a suspect occupant is present and does not consent, but a co-occupant 

who is also present consents, then consent is not valid as to the suspect 

occupancy

-- Border Searches:

--- Searches upon entry to, or exit from, U.S. installations, enclaves, aircraft, or 

vessels that are outside the United States

--- Searches of government property not issued for personal use. Property 

issued for personal use include: dorm rooms, lockers, and housing.

--- Searches within jails, confinement facilities, or other similar facilities

--- Searches incident to a lawful stop or apprehension

---- Other searches as deemed valid under the Constitution and case law, 

such as an emergency search to save life, searches of open fields or 

woodlands, etc.
202 The Military Commander and the Law

Special Search Issues

- Computer Searches:

-- Computer users have a reasonable expectation of privacy in computer files stored 

on personal computers, personal cell phones, and in personal mass data storage 

devices

-- To search personal computer files or storage devices, one must obtain either 

authorization based on probable cause or consent

-- A person may have a reasonable expectation of privacy in some aspects of government computers, networks, storage devices, and e-mails. The law in this area 

is complex— consult your legal office in every instance.

-- Network administrators who discover evidence of misconduct on a users’ account 

while performing network maintenance may disclose that information to law 

enforcement or the commander

- Searches of Privatized/Leased Housing:

-- On-Base Housing: The installation commander and the military magistrate probably have power to authorize searches of privatized housing located on the 

installation

-- On-Base Privatized Housing: Under the Military Housing Privatization Initiative 

(MHPI), the military leases land to private developers who are responsible for 

housing construction and upkeep. The issue centers on whether the installation commander retains sufficient control over family housing when housing is 

leased to a private entity—especially on bases with concurrent jurisdiction. Due 

to sensitive nature of the privacy rights involved, it is essential to consult with 

your legal office in every instance.

-- Off Base Housing: Normally commanders do not have sufficient control over 

leased housing outside the installation to allow them to authorize searches. Commanders should review the lease agreement and consult with their legal office.
CHAPTER FIVE Criminal and Military Justice 203

Inspections

- Generally: An “inspection” is an examination of the whole or part of a unit, organization, installation, vessel, aircraft, or vehicle, including an examination conducted at 

entrance and exit points, conducted as an incident of command the primary purpose 

of which is to determine and to ensure the security, military fitness, or good order 

and discipline of the unit, organization, installation, vessel, aircraft, or vehicle (see 

Military Rule of Evidence 313)

-- Inspections are not searches. An impermissible inspection is one that is made for 

the primary purpose of obtaining evidence for use in trial by court-martial or in 

other disciplinary proceedings.

-- Inspections may be “announced” or “unannounced” and may be authorized 

without probable cause

-- Inspections may be conducted personally by the commander or by others at the 

commander’s direction

- Methods of Conducting Lawful Inspections: (1) primary purpose is something other 

than to gain evidence for disciplinary purposes; and (2) inspection is conducted 

using reasonable means

-- First, it must not be for the primary purpose of obtaining evidence for use in 

courts-martial or in disciplinary proceedings. Best practice is to have the commander prepare a memo for record concerning the purpose of the inspection 

so that they may refresh their memory when called to testify, which is often 

months later.

-- Second, inspections must be conducted in a “reasonable manner”

--- An inspection is “reasonable” if the scope, intensity, and manner of execution 

of the inspection is reasonably related to its purpose

--- For example, if the purpose of an inspection is to look for fire hazards near 

office electrical outlets, inspecting the contents of the desk drawers would 

probably be unreasonable since items located in the desk drawers would not 

risk an electrical fire. The inspection will have gone beyond the scope of the 

purpose of the inspection.
204 The Military Commander and the Law

- Inspections for Weapons and Contraband: Inspections for weapons or contraband 

are specifically permitted while conducting a previously scheduled lawful inspection 

as long as the examination was not targeted toward specific individuals or employ 

substantially different intrusion methods and not directed immediately following a 

report of a specific offense within the unit, organization, or installation

-- Contraband, weapons, or other evidence of a crime that is uncovered during a 

proper inspection may be seized and are admissible in a court-martial

-- An inspection that turns up contraband should continue as planned. Commanders who abandon inspections upon the discovery of contraband risk creating the 

appearance that the inspection was a search in disguise.

-- An examination for the primary purpose of obtaining evidence for use in disciplinary proceedings is not an “inspection.” It is a “search” and, if not authorized 

based on probable cause, is illegal.

- Examples of Lawful Inspections:

-- Air Force random urinalysis inspection program

-- Unit/Base wide “dorm sweeps” (ordered by installation/unit commander)

-- “Unit urinalysis sweep” (urinalysis testing of all or part of a unit on a predesignated day)

-- “Operation Nighthawk” (selection of random individuals for UA entering the 

installation in the late evening/early morning hours of a pre-designated day)

-- Consult with your local staff judge advocate for implementation instructions for 

an inspection for contraband

Inventories

- Inventories may be conducted for valid administrative purposes including:

-- Furniture inventories of dormitories or dormitory rooms

-- Inventories of an absent without leave (AWOL) member’s, or a deserter’s, property 

left in a government dormitory room. Commanders should consult their servicing 

legal office in these cases.
CHAPTER FIVE Criminal and Military Justice 205

-- Inventories of the contents of an impounded or abandoned vehicle

- Unlawful weapons, contraband, or other evidence may be lawfully seized during a 

valid inventory

Unfit to Perform Duties & Blood Alcohol Tests

- A blood alcohol test (BAT) is not required under UCMJ, Art. 134 to prove a member 

to be incapacitated for the performance of their duties by prior wrongful indulgence 

in alcohol or drug use

- Voluntary BATs:

-- You may, after consultation with your local legal office, ask a member of your 

command who is suspected of being under influence of alcohol or drugs to 

voluntarily take a BAT

-- Follow procedures of local hospital/clinic laboratory

- Involuntary BATs:

-- Although commanders have authority over subordinate members within their 

units, BAT tests are normally directed by a military magistrate (appointed by 

the installation commander) through a search authorization based on probable 

cause

- Implied Consent for Alcohol Tests:

-- Drivers give implied consent to tests of their blood, breath, and/or urine for 

alcohol or drugs when driving on base

-- Invoked by security forces regulations governing driving under the influence 

(DUI) offenses

-- Often results in automatic adverse action for refusal to cooperate and/or loss of 

on base driving privileges

- Physician Authorized:

-- For medical reasons directed by an examining physician

-- Results may be used criminally
206 The Military Commander and the Law

Use of Military Working Dogs in Searches and Inspections

- Military working dogs may be used at any time in common areas since there is no 

reasonable expectation of privacy in a common area

- Common areas include dormitory hallways, day rooms, parking lots, and duty sections

- Military working dogs may be used during inspections anywhere within the scope of 

the inspection, e.g., dormitory rooms, whether the occupant is present or not

- What to do when a military working dog “alerts” in a common area

-- Can immediately “search” all common areas for contraband

-- If it appears the “alert” in a common area is on contraband but in a non-common 

area, for example, outside a dormitory room or automobile, immediately call the 

search authority to obtain a search authorization before proceeding further with 

the search

- What to do when a drug dog “alerts” during an inspection

-- Immediately stop the inspection in the area of the dog alert, e.g., that particular 

dormitory room, and secure that area

-- Call the search authority and obtain a search authorization before proceeding 

with the inspection or a search in that particular area

-- After the search of that particular area has been completed pursuant to a search 

authorization, continue the inspection

References

UCMJ Art. 31 

The Military Housing Privatization Initiative, 10 U.S.C. §§ 2871-85

Military Rules of Evidence 311-317 (2015)

AFMAN 31-116, Air Force Motor Vehicle Traffic Supervision (18 December 2015)

AFI 31-121, Military Working Dog Program (17 October 2012), incorporating Change 1, 

31 March 2015

AFI 31-218(I), Motor Vehicle Traffic Supervision (22 May 2006), certified current, 15 July 2011

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016

AF Form 1364, Consent for Search and Seizure (18 April 2016)
CHAPTER FIVE Criminal and Military Justice 207

PRELIMINARY INQUIRY INTO REPORTED OFFENSES

When a military member is accused or suspected of an offense, the member’s immediate 

commander has primary responsibility for ensuring a preliminary inquiry is conducted 

and appropriate command action is taken.

Exceptions

- For crimes involving rape, sexual assault, or child sex crimes the initial disposition 

authority is removed from the immediate commander and placed with the Special 

Court-Martial Convening Authority (SPCMCA)

- A commander who is a court-martial convening authority or who grants search 

authority must remain neutral and detached from the cases in which they act in this 

capacity. Thus, they will typically not act in an investigative capacity.

Initial Investigation of Suspected Offense

- Minor Offenses: In some cases, e.g., failure to go, dereliction of duty, the commander 

or first sergeant may conduct the preliminary inquiry. This may involve nothing more 

than talking with the member’s supervisor.

- Major Offenses: In more serious cases, law enforcement agents such as the Security 

Forces Office of Investigations (SFOI) or the Air Force Office of Special Investigations 

(AFOSI) will conduct the investigation and report the results to the commander for 

disposition of the case. When the commander receives a report of investigation (ROI) 

from law enforcement, the preliminary inquiry requirement is fulfilled by reviewing 

the ROI.

Options Available to the Commander

- Ordinarily the immediate commander of a person accused or suspected of committing an offense determines the appropriate initial disposition and should do so in a 

timely manner

- In any case involving a disciplinary action or a criminal offense, the commander 

should consult with the local legal office

- Options available to the commander include:

-- No action
208 The Military Commander and the Law

-- Administrative action, e.g., letter of reprimand, removal from supervisory duties, 

involuntary discharge, denial or reenlistment, etc.

-- Nonjudicial punishment under Article 15

-- Preferral of court-martial charges

--- Before preferring charges against a military member, be sure to thoroughly 

review the ROI and any other evidence or documentation

--- At the time of preferral of charges, the accuser is required to take an oath 

that he or she is familiar with facts underlying the charges. The accuser is 

traditionally the commander.

-- Make sure you consult with the legal office on all allegations of a sexual nature. 

Initial Disposition Authority in those cases has been withheld effective 28 June 

2012 by the Secretary of Defense.

-- All allegations of a sexual nature or drug distribution must be referred to AFOSI 

for investigation

References

Rules for Courts-Martial 303 and 306 (2015)

SecDef Memorandum, Withholding Initial Disposition Authority Under the Uniform Code of Military 

Justice in Certain Sexual Assault Cases (20 Apr 2012)
CHAPTER FIVE Criminal and Military Justice 209

MILITARY JUSTICE ACTIONS 

AND THE INSPECTOR GENERAL

The Inspector General (IG) has authority to investigate complaints related to “discipline.” 

This authority is restricted particularly as it relates to actions under the UCMJ. If courtmartial charges have already been preferred in a case, the IG should generally not have 

any direct involvement.

- Both nonjudicial punishment proceedings and courts-martial have statutory appeal 

provisions

- Additionally, Congress and the Air Force have provided additional administrative 

review mechanisms, such as the Air Force Board for Correction of Military Records 

(AFBCMR), Congressional Inquiries, etc.

- AFI 90-301, Inspector General Complaints Resolution, should not be used as authority 

for an IG investigations into military justice matters

- IG personnel and investigating officers must have expeditious and unrestricted access 

to all Air Force records, reports, investigations, audits, reviews, documents, papers, 

recommendations, and other materials relevant to the investigation concerned; IGs 

are authorized access to all documents and all other evidentiary materials needed 

to discharge their duties to the extent allowed by law

Role of the IG in UCMJ Matters Should Be Guided by the Following Information

- Prior to a commander’s initiation of an action under the UCMJ, the IG may conduct 

an investigation authorized by applicable regulations

- If misconduct is involved, refer to the provisions in AFI 90-301, para. 6.3.3 and table 

3.6; and consult with the local staff judge advocate (SJA)

- If court-martial charges have been preferred in a case, the IG should generally not 

have any direct involvement

- If investigation of matters tangential to court-martial charges becomes necessary, 

the IG should consult with the SJA to ensure that the investigation does not in any 

way prejudice the administration of justice under the UCMJ
210 The Military Commander and the Law

- If action is initiated under Article 15, UCMJ, the IG should refer to the provision of AFI 

90-301, table 3.6, rule 22

-- Appeal rights under AFI 51-202, Nonjudicial Punishment, UCMJ, Art. 15, and Part 

V of the Manual for Courts-Martial (MCM) must first be exhausted

- If it is necessary to process a complaint of procedural mishandling, the investigation 

should be confined to the procedural aspects of the Article 15 process and should 

NOT involve:

-- Assessing the sufficiency of the evidence

-- Probing the commander’s deliberative process concerning the decision to initiate 

action, the complainant’s guilt, or the punishment imposed

- The complainant should also be referred to AFI 36-2603, Air Force Board for Correction 

of Military Records

- Additionally, the IG is responsible for investigating allegations of reprisal. Any nonjudicial punishment or adverse administrative action taken against the individual 

who filed the reprisal complaint may be reviewed in the course of that investigation.

References

10 USC, §§ 8014, 8020

Manual for Courts-Martial, United States, Part V (2012)

AFI 36-2603, Air Force Board for Correction of Military Records (5 March 2012)

AFI 51-202, Nonjudicial Punishment (31 March 2015)

AFI 90-301, Inspector General Complaints Resolution (27 August 2015)
CHAPTER FIVE Criminal and Military Justice 211

PREPARATION, PREFERRAL, 

AND PROCESSING OF CHARGES

The preparation of court-martial charges involves drafting the charges and specifications. 

Preferral of charges in the military is the act of formally accusing a military member of 

a violation of the UCMJ. Processing of the charge involves forwarding the charges and 

specifications to a convening authority.

Preparation of Charges

- The charge states which article of the UCMJ has allegedly been violated

-- The specification is a concise statement of exactly how the article was allegedly 

violated

-- Since precise legal language is required, the legal office drafts charges and 

specifications

-- Charges are documented in Section 10, block II of the DD Form 458, Charge Sheet

Preferral of the Charge

- The first formal step in initiating a court-martial

- Anyone subject to the UCMJ may prefer charges against another person subject to 

the UCMJ

- The immediate commander of an accused is the individual who ordinarily prefers 

the charge

- Preferral is documented in block III of the charge sheet

- Preferral requires the “accuser,” the one preferring the charge, to take an oath that 

he/she is a person subject to the Code, that he/she either has personal knowledge 

of or has investigated the charge and specification, and that they are true to the best 

of his/her knowledge and belief

-- This oath is normally given by a judge advocate

-- An accuser is not required to believe a charge and specification can be proven 

beyond a reasonable doubt
212 The Military Commander and the Law

Processing of the Charge

- Preferral does not require the presence of the accused. However, after preferral, the 

commander must inform the accused of the charge. Since the commander is normally 

the accuser, notice to the accused typically occurs at the same time as preferral by 

the commander reading the charge to the accused.

- The commander then forwards the charge with a transmittal indorsement to the 

summary court-martial convening authority (SCMCA)

- To convene a court-martial, the charge must be forwarded to a convening authority, 

usually the special court-martial convening authority (SPCMCA). In the Air Force, the 

SCMCA is usually also the SPCMCA, so this extra step of forwarding the charge from 

the SCMCA to the SPCMCA is not required. A judge advocate may be authorized by 

the SPCMCA to receipt for charges on the SPCMCA’s behalf.

- The SPCMCA can dismiss the charges or return the charges to the commander for 

alternate disposition. If the SPCMCA determines the charges warrant a court-martial, 

the following actions may be taken:

-- Refer the charge to a special court-martial or summary court-martial; or

-- Appoint a preliminary hearing officer (PHO) to conduct an Article 32 preliminary 

hearing

--- The PHO completes and forwards the preliminary hearing report to the SPCMCA for review. If the SPCMCA believes a general court-martial is warranted, 

the SPCMCA forwards the preliminary hearing report along with the charges 

to the general court-martial convening authority (GCMCA) for review and 

possible referral to a general court-martial.

--- The GCMCA can refer the charges to a general court-martial and convene the 

court-martial, return the charges to the SPCMCA for disposition, or dismiss 

the charges

- Once the charge has actually been referred to trial, the appointed trial counsel will 

then formally serve the accused with a copy of the charges and specifications. This 

is documented in section 15, block IV of the charge sheet.

- Time constraints are involved in the preferral and trial of court-martial charges. An 

accused’s right to a speedy trial and the impact of unnecessary delay can have on the 

effectiveness of military justice require charges be disposed of promptly.
CHAPTER FIVE Criminal and Military Justice 213

References

UCMJ Art. 30

Rules for Courts-Martial 306 and 307 (2015)

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016

DD Form 458, Charge Sheet (May 2000)
214 The Military Commander and the Law

PRETRIAL RESTRAINT AND CONFINEMENT

Pretrial restraint and pretrial confinement are tools to ensure the appearance of the 

accused at their upcoming court-martial and/or to prevent the commission of serious 

misconduct by the accused while awaiting court-martial. There are four types of pretrial 

restraint: (1) conditions on liberty; (2) restriction in lieu of arrest; (3) arrest; (4) pretrial 

confinement. Pretrial restraints are not required in every court-martial case. Before ordering any form of pretrial restraint, the commander must be convinced that probable cause 

establishes that: (1) a UCMJ violation was committed; (2) that the accused committed 

it; and (3) that the restraint imposed is required by the circumstances to either ensure 

the presence of the accused at court-martial, or to prevent foreseeable serious criminal 

misconduct by the accused while pending court-martial. Pretrial restraint/confinement 

is not intended to be, and should not be used as, pretrial punishment. Pretrial restraints 

should only be imposed in association with pending court-martial charges.

Overview

- Pretrial restraint (Rule for Courts-Martial (RCM) 304): moral or physical restraint on a 

person’s liberty, imposed before and during disposition of court-martial level offenses

- Pretrial confinement (RCM 305): physical restraint, imposed by order of competent 

authority, depriving a person of freedom pending disposition of charges

-- Pretrial confinement is the most severe form of pretrial restraint

-- There is no “bail” in the military justice system, therefore placement into pretrial 

confinement requires a series of procedural safeguards requiring the government 

to ultimately demonstrate by a preponderance of the evidence (i.e., more likely 

than not) that pretrial confinement is necessary under the circumstances

- Selecting the appropriate form of pretrial restraint: Commanders should select the 

least rigorous restraint necessary to assure appearance of accused at court-martial 

or prevent commission of foreseeable serious misconduct pending court-martial

- Never impose any form of pretrial restraint without first consulting the local legal 

office

- The imposition of any form of pretrial restraint starts the speedy trial clock under RCM 

707 (120 days), regardless of whether charges have been preferred
CHAPTER FIVE Criminal and Military Justice 215

Who May Order Pretrial Restraint?

- Only an Airman’s commander may impose pretrial restraint on an officer. This authority MAY NOT be delegated.

- Any commissioned officer may impose pretrial restraint on any enlisted person

- A commanding officer can delegate authority to order pretrial restraint of enlisted 

personnel under their command to non-commissioned officers (usually the first 

sergeant)

Pretrial Restraint Prerequisites

- Requires a reasonable belief that:

-- An offense triable by court-martial has been committed;

-- The person to be restrained committed it; and

-- Restraint is required by the circumstances

- Notice to Individual: Restrained individual must be personally notified of the nature 

of the offense which is the basis for the restraint and terms of the restraint

- Release from Pretrial Restraint: Except as otherwise provided by RCM 305, a person 

may be released from pretrial restraint by any person authorized to impose the 

restraint

Types of Pretrial Restraint

- The four types of pretrial restraint (from least to most severe):

-- Conditions on Liberty (RCM 304(a)(1))

-- Restriction in lieu of Arrest (RCM 304(a)(2))

-- Arrest (RCM 304(a)(3))

-- Pretrial Confinement (RCM 304(a)(4); 305)
216 The Military Commander and the Law

- Conditions on Liberty: Imposed by orders directing a person to do or refrain from 

doing specified acts

-- May be imposed in conjunction with other forms of restraint or separately

-- Typical examples include orders to report periodically to a specified official, orders 

not to go to a certain place, and orders not to associate with specified persons

- Restriction in lieu of Arrest: Imposed by ordering a person to remain within specified 

limits

-- Normally restriction is to remain within the confines of the base

-- A restricted person shall, unless otherwise directed, perform full military duties

- Arrest: The restraint of a person, directing the person to remain within specified limits

-- An arrested person does not perform full military duties

- Pretrial Confinement: Most severe type of pretrial restraint; see requirements below

Procedures Upon Entry Into Confinement

- Placement into pretrial confinement requires additional procedural safeguards to 

ensure that it is both necessary and justified under the circumstances, including 

the following four levels of review over the course of the first week of any pretrial 

confinement:

-- 24-hour commander notification

-- 48-hour probable cause review by a neutral officer

-- 72-hour commander review of necessity of continued pretrial confinement

-- 7 day hearing conducted by a neutral pretrial confinement reviewing officer

- Upon placement into pretrial confinement, the person to be confined must be 

promptly notified of the following:

-- Nature of the offenses for which he or she is being held

-- Right to remain silent and that any statement made may be used against him/her
CHAPTER FIVE Criminal and Military Justice 217

-- Right to request assignment of military counsel; or

-- Retain civilian counsel at no expense to the United States

-- Procedures by which pretrial confinement will be reviewed

- UCMJ, Art. 10 requires that “immediate steps” shall be taken to try the person or to 

dismiss the charges and release the person (usually requiring government to bring 

accused to trial within 120 days)

24-Hour Notification

- If the person ordering confinement is not the confinee’s commander, then the confinee’s commander must be notified within 24 hours of the entry to confinement

48-Hour Probable Cause Determination

- Within 48 hours of entry into confinement, a neutral and detached officer must 

review the adequacy of probable cause to continue confinement by considering 

the following:

-- Nature and circumstances of the suspected offense

-- Weight of the evidence against the accused

-- Accused’s ties to the local community, including family, off-duty employment, 

financial resources, and length of residence

-- Accused’s character and mental condition

-- Accused’s service record

-- Accused’s record of appearance or flight from similar proceedings

-- Likelihood the accused will commit further serious misconduct if not confined

-- Effectiveness of lesser forms of restraint

- If the commander is neutral and detached and acts within 48 hours, the provision 

calling for a 48-hour probable cause determination will be satisfied. However, if the 

commander is not neutral and detached, another officer must make the 48-hour 

probable cause determination.
218 The Military Commander and the Law

72-Hour Commander Review

- If confinement is continued, within 72 hours of entry into confinement, the confinee’s 

commander must prepare a written memorandum justifying continued confinement

-- Continued confinement is warranted if the commander has a reasonable belief 

that:

--- Offense triable by court-martial has been committed

--- Prisoner committed it

-- Confinement is necessary because it is foreseeable that:

--- Prisoner will not appear at trial; or

--- Prisoner will engage in further serious criminal conduct; and

--- Less severe forms of restraint are inadequate

- It is not necessary to try lesser forms of restraint, but they MUST be considered 

in determining whether confinement is appropriate (i.e., commanders should not 

order someone into pretrial confinement until they have considered whether a lesser 

restraint would accomplish the task)

- Convenience of the unit is NOT a valid reason for pretrial confinement

7-Day Pretrial Confinement Review

- A reviewing officer must make written findings, within seven days of entry into confinement, whether the confinee shall be released or remain confined

- Reviewing officer must be neutral and detached

-- Pretrial confinement review officer (PCRO) may be, with limited exception, a 

member appointed by the convening authority;

-- A military magistrate appointed by the convening authority; or

-- A military judge, although it is unusual for a judge to conduct initial review of 

pretrial confinement unless it is after referral of charges
CHAPTER FIVE Criminal and Military Justice 219

- The PCRO must review the commander’s 72-hour memorandum to determine 

whether the requirements for pretrial confinement are met

- The PCRO shall consider matters submitted by confinee, and, unless overriding circumstances or time constraints dictate otherwise, shall allow confinee and counsel 

an opportunity to appear and present a statement or evidence at the hearing

- A representative of command, such as the commander, first sergeant or other person, 

may also appear before the hearing officer

- The review is not an adversarial proceeding; prisoner and counsel have no right to 

cross-examine witnesses, although this is customarily permitted

- Reviewing officer’s memorandum is forwarded to convening authority who may only 

over- ride decision to continue pretrial confinement. Reviewing officer’s decision 

to release may not be reversed without new evidence. Member’s commander may, 

however, impose lesser forms of pretrial restraint.

- Prisoners usually receive day-for-day credit for pretrial confinement against any 

confinement adjudged by the court. Credit for unlawful pretrial confinement, including pretrial punishment, or for restriction tantamount to confinement may lead to 

additional credit.

No Pretrial Punishment of Pretrial Confinees

- Pretrial confinees MAY NOT be treated the same as sentenced prisoners, such as 

required to wear special uniforms for sentenced prisoners, perform punitive labor, 

or undergo punitive duty hours

- Whether a particular condition amounts to pretrial punishment is a matter of the 

intent of the official imposing the condition or of the purposes served by the condition, and whether such purposes are reasonably related to a legitimate governmental 

objective. However, unduly rigorous circumstances or excessive conditions may give 

rise to a permissive inference that a particular condition constitutes punishment.

- Pretrial punishment includes public denunciation and degradation

- Commingling pretrial and sentenced prisoners, without more, is not automatically 

considered pretrial punishment. Case precedent has established commingling with 

sentenced prisoners or non-resident aliens may lead to credit toward an adjudged 

sentence.
220 The Military Commander and the Law

Review by Military Judge

- Once charges are referred to trial, the military judge shall review the propriety of 

pretrial confinement upon motion for appropriate relief made by the defense. Before 

referral of charges, the accused or counsel may request release from pretrial confinement or modification of other forms of restraint from the convening authority.

- The remedy for non-compliance with pretrial confinement rules (e.g., review by 

neutral and detached person is not made within 48 hours) or abuse of discretion 

can range from additional credit for each day of illegal confinement to dismissal of 

the charges

References

UCMJ Arts. 10, 12, and 13

United States v. Zarbatany, 70 M.J. 169 (C.A.A.F. 2010)

United States v. Stringer, 55 M.J. 92 (C.A.A.F. 2001) 

Rules for Courts-Martial 304-05, 707 (2015)

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016
CHAPTER FIVE Criminal and Military Justice 221

IMMUNITY

Immunity for an individual should be granted only when testimony or other information 

from the person is necessary for purposes of maintaining good order and discipline, and 

when the person has refused or is likely to refuse to testify or provide the information on 

the basis of the privilege against self-incrimination.

Types of Immunity

- There are two types of immunity under Rule for Courts-Martial (RCM) 704

-- Testimonial Immunity: Bars the use of the immunized person’s testimony, statements, and information directly or indirectly derived from such testimony or 

statements against that person in a later court-martial

-- Transactional Immunity: Bars ANY subsequent court-martial action against the 

immunized person concerning the immunized transaction, regardless of the 

source of the evidence against that person

- Testimonial immunity is preferred because it does not prevent the government from 

trying the person for the criminal offense they testified about, so long as the government does not use immunized statements in any way to prosecute the person

-- Best practice is to prosecute that individual first, then obtain a grant of immunity 

to obtain statements or testimony to be used in the prosecution of the other case

-- If prosecution of an immunized person occurs after that person has testified or 

provided statements under the grant of immunity, the government must prove 

at the later court-martial that it has not used the person’s immunized testimony 

or statements in any way for the prosecution of that person

- Only a general court-martial convening authority (GCMCA) may grant testimonial or 

transactional immunity

-- The GCMCA may grant immunity to any person subject to the UCMJ

-- The GCMCA can disapprove immunity requests for witnesses not subject to the 

UCMJ

-- The GCMCA can only approve immunity requests for witnesses not subject to 

the UCMJ with authorization from the Department of Justice (DOJ)
222 The Military Commander and the Law

-- If the witness is subject to federal prosecution, requests for immunity must be 

approved by DOJ, even if the individual is subject to the UCMJ

-- In national security cases, immunity requests MUST be coordinated with DOJ 

and other interested U.S. agencies

Immunity Approval Authority (Non-National Security Cases)

Court-Martial U.S. Prosecution

Person Subject to UCMJ GCMCA DOJ 

Person NOT Subject to UCMJ GCMCA can disapprove, but may 

approve only with DOJapproval DOJ

- A grant of immunity may also include an order to testify

-- Under Military Rule of Evidence 301(d), an immunized person may not refuse to 

testify by asserting the Fifth Amendment right against self-incrimination because, 

as a result of the grant of immunity, that person will not be exposed to criminal 

penalty

-- An immunized person may be prosecuted for failure to comply with an order to 

testify

-- Immunity does not bar prosecution for perjury, false swearing, or a false official 

statement arising as a result of any statement made by an individual while testifying under a grant of immunity

- Care is required when dealing with an accused or suspect to avoid a grant of de facto

immunity. This occurs when a person other than the GCMCA:

-- Manifests apparent authority to grant immunity (commanders, first sergeants, 

and investigative agents may, by actions or words, manifest apparent authority)

-- Makes a representation that causes the accused to honestly and reasonably 

believe that a grant of immunity will be issued if a certain condition is fulfilled 

and the accused relies on the representation to his/her detriment
CHAPTER FIVE Criminal and Military Justice 223

- Do not make promises of immunity to any witness without first obtaining immunity 

approval from the GCMCA

-- Promises of immunity without GCMCA approval may still be enforced by courtsmartial as exercises of “de facto” (in fact) immunity

-- De facto (“in fact”) immunity will operate the same as an actual grant of immunity

References

Military Rules of Evidence 301 (2015)

United States v. Morrissette, 70 M.J. 431 (C.A.A.F. 2011)

Rule for Courts-Martial 703 (2015) 

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016
224 The Military Commander and the Law

PRETRIAL AGREEMENTS

Pretrial agreements (PTAs) are agreements between the accused and the convening 

authority. Generally, the accused agrees to enter a plea of guilty to one or more offenses 

in exchange for an upper limit on the sentence (period of confinement, type of punitive 

discharge, amount and/or period of forfeitures, etc.) that the convening authority will 

approve. The decision to accept or reject a PTA offer submitted by an accused is within 

the sole discretion of the convening authority that referred the case to trial. The accused 

is entitled to have the convening authority personally act upon the offer before trial.

Procedures: Initiation of a PTA

- Initiation: Either the government or the defense may initiate PTA negotiations. The 

defense however, must submit the actual written PTA offer to the staff judge advocate 

(SJA).

- The SJA will provide the written PTA to the convening authority with a recommendation

- Special Processing for Cases with Department of Justice (DOJ) Interest: SJA will obtain 

the appropriate approval from the DOJ to enter into PTA discussions or agreements 

in cases involving an offense of espionage, subversion, aiding the enemy, sabotage, 

spying, or violation of punitive rules or regulations and criminal statutes concerning classified information or the foreign relations of the United States. This includes 

attempt, conspiracy, and solicitation to commit any of the above offenses.

- Written PTA Required: Entire PTA must be in writing and signed by the accused, 

defense counsel, and the convening authority. No informal oral promises/representations are permitted.

Permissible PTA Conditions

- Rule for Courts-Martial (RCM) 705 contains restrictions for permissible PTA terms/

conditions

- A promise to enter into a reasonable stipulation of fact concerning the facts and 

circumstances surrounding the offenses to which the accused pleads guilty

- A promise to testify as a witness in a trial of another person

- A promise to provide restitution
CHAPTER FIVE Criminal and Military Justice 225

- A promise to conform conduct to certain conditions of probation before final action 

is taken by the convening authority

- A promise to waive certain procedural requirements, such as:

-- An Article 32 investigation

-- Right to a trial before court members

-- Right to a trial before military judge sitting alone

-- Opportunity to obtain the personal appearance of certain witnesses at sentencing proceedings

Withdrawal from PTA

- Before Trial: Either party may void a PTA by withdrawing from it before trial and before 

either party has begun to act upon the conditions of the PTA

- Convening Authority Withdrawal from PTA: Convening authority may withdraw upon 

any of the following conditions:

-- Any time before the accused begins performance of promises contained in the 

agreement

-- Upon the accused’s failure to fulfill any material promise or condition of the 

agreement

-- When the military judge’s inquiry discloses a disagreement as to a material term 

of the PTA

-- When the findings of guilty are set aside during the appellate review

-- If an accused has violated conditions of a PTA that involve post-trial misconduct, 

the convening authority may withdraw up to the time of his/her final action in 

the case

--- Convening authority may not withdraw from a PTA in any way that would 

be unfair to the accused

--- Any withdrawal must be in writing
226 The Military Commander and the Law

Implementation of the PTA at Court-Martial

- At trial, the military judge will conduct a full inquiry into the specific terms of the 

PTA to ensure the accused fully understands both the meaning and effect of each 

provision of the PTA, has voluntarily entered into the PTA, and that no oral promises 

were made in connection with the PTA

- In a trial by military judge alone, the military judge will not examine any sentence 

cap portions of the PTA until after he or she has independently adjudged a sentence

- In a trial by members, the members will not be told about the PTA until the conclusion 

of the trial

- Accused will get the benefit of the lesser sentence, regardless of whether it was 

adjudged or in the PTA

-- If the sentence adjudged by the military judge or members exceeds the limits 

of the agreed upon sentencing cap, the convening authority may only approve 

the lesser sentence agreed to in the PTA

-- If the adjudged sentence is less than the sentencing cap, only the adjudged 

sentence may be approved

References

Rule for Courts-Martial 705 (2015)

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016
CHAPTER FIVE Criminal and Military Justice 227

TRIAL FORMAT

A military accused may elect to be tried by a military judge alone or by a panel of court 

members (the military equivalent of a civilian jury). All panel members must be senior 

in rank to the accused. In either case, the trial will consist of two major portions: (1) 

findings (guilt/innocence determination) and, in the event of a conviction at findings, 

(2) sentencing.

Findings

- First part of the trial during which guilt or innocence is determined. An accused may 

plead guilty or not guilty

- Guilty Plea:

-- Military judge questions the accused under oath to make sure he understands 

the meaning and effect of their plea, and that he/she is, in fact, guilty

-- If the military judge accepts the guilty plea, the accused will then be sentenced 

by the military judge, or a panel of members, whichever the accused elects

-- Guilty pleas are not allowed in death penalty cases

- Not Guilty Plea:

-- Forum Choice: Accused determines by what type of court martial they wish to 

be tried. Types of forum depend upon the accused status as officer or enlisted.

--- Enlisted Accused: An enlisted accused may elect trial by one of the following 

methods: (1) military judge alone; (2) officer members; (3) mixed panel of 

officer and enlisted members (at least one-third enlisted members included 

on the court-martial panel, all of whom must be senior in rank to the accused)

--- Officer Accused: (1) military judge alone; (2) officer members (all of whom 

must be senior in rank to the accused)

--- Trial by military judge alone is not allowed in capital cases
228 The Military Commander and the Law

-- Accused is presumed innocent

--- Prosecution must prove the accused’s guilt beyond a reasonable doubt

--- Accused has an absolute right to remain silent and present no evidence. The 

accused may also choose to testify or present other evidence in his defense.

-- Court-Martial Panel Voting – Non-Capital Cases: In a trial with members, twothirds of the members, voting by secret written ballot, must concur in any finding 

of guilty

-- Court Martial Panel Voting – Capital Cases: In order to sentence the accused to 

death in a capital case, the vote of guilty on findings must be unanimous

Sentencing

- Second part of the trial during which an appropriate punishment is determined

-- Unlike many civilian courts, sentencing normally occurs immediately following 

findings

-- Sentencing may be by military judge alone or a panel of members

--- In guilty plea cases, the accused may elect sentencing by either a military 

judge alone or by a panel of members

--- In contested cases, the accused’s choice of either members or military judge 

for findings also applies to sentencing

--- Judge-alone sentencing is not permitted in capital cases

-- Sentencing is an adversarial process

--- Prosecution can present matters in aggravation or show lack of rehabilitation 

and can rebut evidence the accused presents

--- Defense can present matters in extenuation to explain the circumstances 

surrounding the commission of the offense and/or matters in mitigation to 

lessen the punishment to be adjudged by the court-martial
CHAPTER FIVE Criminal and Military Justice 229

--- As in the findings portion of trial, the accused also has an absolute right to 

remain silent and present no evidence during sentencing

--- A crime victim of an offense of which the accused has been found guilty 

has the right to be reasonably heard at a sentencing hearing relating to that 

offense

-- In sentencing by members, two-thirds must concur, voting by secret written 

ballot, in any sentence EXCEPT:

--- Sentences over 10 years: three-fourths vote required

--- Death penalty: unanimous vote required

References

Rules for Courts-Martial 903, 910, 913, 918, 921, 1001, 1001A, 1004, and 1006 (2015) 
230 The Military Commander and the Law

CONFIDENTIALITY AND PRIVILEGED COMMUNICATIONS

In the military, only certain relationships are recognized as involving privileged communication and therefore have confidentiality. Because privileges run contrary to a court’s 

truth-seeking function, they are narrowly construed. Privileges may be waived by the 

privilege holder. Waiver occurs when the privilege holder voluntarily discloses or consents 

to disclosure of any significant part of the matter or communication. Commanders must 

respect the privileges set forth below, absent waiver or an applicable exception to the 

privilege.

Communications to Clergy (Military Rule of Evidence 503)

- A person has a privilege to refuse to disclose and to prevent another from disclosing 

a confidential communication by the person to a clergyman or to a clergyman’s assistant, if such communication is made as a formal act of religion or matter of conscience

- Applies to civilians and service members; “clergyman” includes a minister, priest, 

rabbi, chaplain, or other similar functionary of a religious organization, or an individual reasonably believed to be so by the person consulting the clergyman

- Privilege extends to the chaplain’s or clergyman’s staff

Attorney Client Privilege (Military Rule of Evidence 502)

- Privilege applies to all information confided to an Area Defense Counsel (ADC), Special Victims' Counsel (SVC) or legal assistance attorney during representation, except 

with respect to some future crimes or frauds upon the court

- Communications between a commander and staff judge advocate are privileged 

only when the commander is acting as an agent or official of the Air Force and the 

commander’s interests in no way conflict with those of the Air Force

- Privilege extends to non-lawyer members of the attorney’s staff, e.g., paralegals, 

secretaries, etc.

Physician-Patient

- The Military Rules of Evidence (MRE) generally do not recognize a physician-patient 

privilege

- No privilege for civilians treated in a military facility, but Privacy Act and other federal 

regulations protect any illegal third party disclosure
CHAPTER FIVE Criminal and Military Justice 231

Medical Records

- Military medical records are the property of the Air Force

- Information in the health record is personal to the individual and will be properly 

safeguarded pursuant to the federal Healthcare Information Portability and Protection Act (HIPPA)

- Commanders or commanders’ designees may access members’ military medical 

records but only to the extent necessary to ensure mission accomplishment

Psychotherapist-Patient Privilege (Military Rule of Evidence 513 / AFI 44-172)

- A limited privilege exists between persons subject to the UCMJ and psychotherapists

-- Generally, the limited privilege protects only confidential communications which 

are made to a psychotherapist (or assistant) for the purpose of diagnosis or treatment of the person’s mental or emotional condition in cases arising under the 

UCMJ

-- Exceptions include, but are not limited to: when the patient is dead; the communication is evidence of child abuse or neglect, or in a proceeding in which one 

spouse is charged with a crime against a child of either spouse, and when there 

is an allegation of such misconduct the communication contemplates future 

misconduct; when necessary to ensure safety and security of military personnel 

or property; or law or regulation imposes a duty to report the information

- Under AFI 44-172, Mental Health, communications between a patient and a psychotherapist (or assistant) made for purposes of facilitating diagnosis or treatment of 

the patient’s mental or emotional condition are confidential and must be protected 

against unauthorized disclosure

-- A limited privilege also applies to active duty military members ordered to undergo 

a sanity board pursuant to Rules For Courts-Martial (RCM) 706 and MRE 302

-- A limited privilege also exists under the Limited Privilege Suicide Prevention 

(LPSP) Program pursuant to AFI 44-172, which applies to confidences made after 

notification of an investigation or of suspicion of commission of a criminal act, 

and placement into the LPSP program
232 The Military Commander and the Law

Victim Advocate-Victim Consultations Privilege (Military Rule of Evidence 514)

- A limited privilege exists between victim advocates and victims of a sexual or violent 

offense

-- Generally, the limited privilege protects only confidential communications 

between a victim and a victim advocate in sexual and violent offenses arising 

under the UCMJ, made for the purpose of facilitating advice or supportive assistance to the victim

-- Exceptions include, but are not limited to: when the patient is dead; federal/

state law or service regulations impose a duty to report; the communication 

clearly contemplated the future commission of a fraud or crime; when necessary 

to ensure safety and security of military personnel or property; or disclosure is 

constitutionally required

Drug/Alcohol Abuse Treatment Patients

- AFI 44-121, Alcohol And Drug Abuse Prevention And Treatment (ADAPT) Program, para. 

3.7.1, grants limited protections for Air Force members who voluntarily disclose 

personal drug use or possession. Those protections do not include any future drug 

abuse.

-- Such disclosure may not be used as the basis for UCMJ action or for the characterization of service in a discharge proceeding

-- A member must disclose their drug abuse before the use is discovered or the 

member is placed under investigation. The member may not disclose after he is 

ordered to give a urine sample as part of the drug testing program in which the 

results are pending or have been returned as positive.

- Federal law protects confidentiality of medical records pertaining to drug and alcohol 

abuse
CHAPTER FIVE Criminal and Military Justice 233

Spousal Privilege (Military Rule of Evidence 504)

- A spouse may elect not to testify against the other spouse as long as a valid marriage 

exists at the time they are to provide testimony

- A spouse may prevent testimony by the other spouse (or ex-spouse) regarding private 

communications made during the marriage even if the marriage has been dissolved 

at the time of testimony

- Neither privilege applies when one spouse is charged with a crime against, the person 

or property of the other spouse, child or children of either spouse, if the marriage 

is a sham as determined by state law, or if the spouses are co-conspirators in crime

Medical Quality Assurance Privilege

- 10 U.S.C. § 1102 generally restricts access to information emanating from a medical 

quality assurance program activity. Exception: release is authorized “[t]o an officer, 

employee, or contractor of the Department of Defense who has a need for such 

[information] to perform official duties.”

- Information must only be used for official purposes and safeguarded in accordance 

with the Privacy Act and other applicable laws and regulations

Family Support Center Program

- Family Support Center (FSC) staff should neither state nor imply that confidentiality 

exists

- Information collected from members and families must only be used for official 

purposes and must be safeguarded in accordance with the Privacy Act

- FSC Director will notify the appropriate authority when an Air Force member constitutes a potential danger to self, others, or could have an impact on Air Force mission
234 The Military Commander and the Law

References

The Privacy Act of 1974, 5 U.S.C. § 552a 

10 U.S.C. § 1102 

42 U.S.C. § 290dd-2

Mil. R. Evid. 302, 501-513

United States v. Jasper, 72 M.J. 276 (C.A.A.F. 2013) 

Rule for Courts-Martial 706 (2015)

DoD 6025.18-R, DoD Health Information Privacy Regulation (24 January 2003)

AFI 33-332, Air Force Privacy and Civil Liberties Program (12 January 2015)

AFI 36-2706, Equal Opportunity Program Military and Civilian (5 October 2010), incorporating 

Change 1, 5 October 2011

AFI 36-3009, Airmen and Family Readiness Centers (7 May 2013), incorporating Change 2, 16 

July 2014, AFI36-3009_AFGM2016-01, 18 February 2016

AFI 44-172, Mental Health (13 November 2015)

AFI 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program (8 July 2014)

AFI 41-210, Tricare Operations and Patient Administration Functions (6 June 2012)

AFI 51-110, Professional Responsibility Program (5 August 2014), including 

AFI51-110_AFGM2016-01, 7 July 2016
CHAPTER FIVE Criminal and Military Justice 235

USE OF INFORMATION IN THE PERSONAL

INFORMATION FILE AND REHABILITATION TESTIMONY

AT COURT-MARTIAL

Personnel records of the accused are generally admitted as evidence at any court-martial 

sentencing hearing so long as those records are kept in accordance with Air Force regulations. These records are important information to demonstrate a service member’s duty 

record and have a direct bearing on the ultimate sentence imposed at court-martial. 

Further information about the character of the accused is provided via “rehabilitative 

potential testimony,” which may be provided by any person with sufficient contact with 

the accused to form an intelligent opinion as to the accused’s ability to be rehabilitated 

to a useful position in society following court-martial.

Information in the PIF

- Documents in a personnel information file (PIF) can be admitted into evidence by 

the prosecution during the sentencing phase of a court-martial contingent on the 

following prerequisites:

-- Clear from the face of the document that the member received a copy of the 

document

-- Member had an opportunity to respond to the allegations

-- Document is not over 5 years old on the date charges were referred to trial

- Document must be complete and kept in accordance with Air Force instructions

- Any response submitted by the member becomes part of the record and must be 

filed with the action. Otherwise, the record is incomplete and may not be admitted.

Rehabilitation Evidence

- Rule for Courts-Martial (RCM) 1001(b)(5) permits evidence of rehabilitative potential 

to be introduced in the sentencing phase of the trial

- “Rehabilitative potential” for RCM 1001(b)(5) purposes means “the accused’s potential 

to be restored, through vocational, correctional, or therapeutic training or other 

corrective measures to a useful and constructive place in society”

-- Evidence may be in the form of opinion concerning the accused’s previous performance as a service member and potential for rehabilitation
236 The Military Commander and the Law

-- Scope of the rehabilitation evidence must be limited to whether the accused 

indeed has rehabilitative potential in society, and the magnitude or quality of any 

such potential. An example would be “SSgt Doe has outstanding rehabilitation 

potential.”

-- Witness cannot express an opinion as to whether the accused should receive a 

punitive discharge or any euphemism as to the appropriateness of a particular 

sentence

-- Opinion testimony in this area must be based on sufficient personal knowledge 

about the accused’s character, duty performance, moral fiber, and determination 

to be rehabilitated, and cannot be based merely on the seriousness of the offense 

at issue

References

Rule for Courts-Martial 1001(b)(2), 1001(b)(5) (2015)

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016
CHAPTER FIVE Criminal and Military Justice 237

POST-TRIAL MATTERS, CLEMENCY SUBMISSIONS, 

CONVENING AUTHORITY ACTION, AND APPEALS

Most parts of court-martial sentences do not go into effect automatically. Rather, they go 

into effect upon action by the convening authority. All sentences of courts-martial are 

subject to post-trial clemency review by the convening authority, and appellate review 

by applicable military authorities. In the event of a court-martial conviction and sentence, 

the accused has the right to submit post-trial matters to the convening authority for 

clemency consideration. Further appellate review of the accused’s case is determined 

by the severity of the sentence. Finally, in the event of a court-martial conviction and 

sentence involving a victim, the victim is also entitled to submit post-trial matters for 

the convening authority’s review during clemency.

Post-Trial Actions: Production of the Record of Trial and Staff Judge Advocate 

Recommendation

- Following a court-martial conviction, the accused is entitled to a copy of the authenticated record of trial (ROT) and the staff judge advocate's post-trial recommendation 

(SJAR) to the convening authority as to whether to approve the findings and sentence 

in the case

- After receipt of the later of these documents, the accused is allotted 10 calendar days 

(7 for summary courts-martial) to submit clemency matters to the convening authority for the convening authority’s consideration as to whether to approve findings of 

guilt or to approve or disapprove all or part of the sentence

-- Accused may also request an extension of time of up to 20 days to submit clemency matters

-- Accused may also waive his/her right to submit clemency matters

- Accused Clemency Submissions: Written clemency matters submitted by an accused 

may include:

-- Allegations of legal errors that affect the findings or sentence

-- Portions or summaries of the record and copies of documentary evidence offered 

or introduced at trial

-- Matters in mitigation that were not available for consideration at trial, except as 

may be limited by Rule for Courts-Martial (RCM) 1107(b)(3)(C)
238 The Military Commander and the Law

-- Clemency recommendations by any court member, the military judge, or any 

other person

-- Written clemency matters submitted by the accused may not include matters 

that relate to the character of a victim unless such matters were presented as 

evidence at trial and not excluded

- Victim Clemency Submissions: A crime victim of an offense tried by any court-martial 

shall have the right to submit a statement to the convening authority after the sentence is adjudged

-- “Crime victim” for the purposes of RCM 1105A is a person who has suffered direct 

physical, emotional, or pecuniary harm as a result of the commission of an offense 

of which the accused was found guilty, and on which the convening authority 

takes action under RCM 1107

-- Statement must be in writing and signed by the victim. It may include photographs, but shall not include video, audio, or other media.

-- The crime victim may submit the statement no later than 10 days after the later of:

--- Date the victim receives an authenticated copy of the record of trial or waives 

the right; or

--- Date on which the staff judge advocate recommendation is served on the 

victim

-- For summary courts-martial, the victim has 7 days after the sentence is announced

- Trial counsel, or a summary court-martial officer, shall make reasonable efforts to 

inform a crime victim of the right to submit a statement and the manner in which it 

may be submitted

- A crime victim may waive their right to submit a statement by expressly waiving 

such in writing or by failing to submit a statement within the prescribed time period
CHAPTER FIVE Criminal and Military Justice 239

Convening Authority Action

- Findings and sentence adjudged by a court-martial are not final until approved or 

disapproved by the convening authority, this is referred to as “action”

- Before completing action in a case, the convening authority is required to review the 

SJAR, the SJAR Addendum, clemency mattes submitted by the accused, and matters 

submitted by the victim (if applicable)

- Generally speaking, during the clemency process, the convening authority has limited 

authority to: (1) disapprove findings of guilt (if the offense concerned did not involve 

a rape or sexual assault conviction, and the maximum confinement for that offense 

was 2 years or less); and (2) reduce or disapprove only those aspects of the sentence 

pertaining to confinement of 6 months or less; reductions in grade; forfeitures of pay; 

hard labor without confinement; restriction to limits; and reprimands

-- Fiscal Year 2014 National Defense Authorization Act limited the power of a convening authority to modify the findings and sentence of a court-martial under 

UCMJ, Art. 60 in certain cases. Commanders should consult their servicing legal 

office when considering modification.

Effective Date of Court-Martial Punishments

- Punitive Discharge: Not effective unless and until approved after appellate review

- Confinement: Effect immediately unless deferred (i.e., delay the effective date) by 

the convening authority

- Reduction in Grade: Effective 14 days after announcement of the sentence or convening authority action, whichever is sooner. The convening authority may also defer 

(i.e. delay the effective date of) the reduction in grade.

- Forfeiture of Pay and Allowances: Effective 14 days after announcement of the 

sentence or action by the convening authority, whichever is sooner. The convening 

authority may also unless defer the forfeiture of pay until action. In addition, when 

taking action, the convening authority may lessen the impact of “automatic” forfeitures of pay by “waiving” them for up to 6 months for the benefit of the accused’s 

dependents.
240 The Military Commander and the Law

-- Automatic Forfeitures: An accused automatically forfeits pay and allowances, up 

to the jurisdictional limits of their court-martial (general court-martial (GCM)—

total forfeitures of pay and allowances; special court-martial (SPCM)—2/3 forfeitures of pay, only), during any period of confinement if the adjudged sentence 

includes death or a punitive discharge, or any sentence to confinement for more 

than 6 months

-- Waiver of Automatic Forfeitures: A convening authority may waive mandatory 

forfeitures but only in cases where the accused has dependents. To do so, the 

convening authority must also defer, suspend, mitigate or disapprove all or part 

of adjudged total forfeitures.

- Hard Labor Without Confinement: Effective 14 days after announcement of the sentence or convening authority action, whichever is sooner

- Restriction to Limits: Effective 14 days after announcement of the sentence or convening authority action, whichever is sooner

- Reprimand: Provided by the convening authority in conjunction with “action” on 

the case

Appellate Review

- Type of appellate review depends upon the adjudged sentence and type of 

court-martial

- Unless appellate review is waived by an accused, the Air Force Court of Criminal 

Appeals (AFCCA) automatically reviews all cases involving sentences of death, punitive discharge, or confinement of one year or more

- After review by the AFCCA, the Court of Appeals for the Armed Forces (CAAF) may 

elect to review any case. Review is automatic in death penalty cases and cases certified to the court for review by The Judge Advocate General of any service.

- Cases reviewed by the CAAF may be considered for review by the Supreme Court of 

the United States

- In cases where a punitive discharge is adjudged or mandatory, the discharge cannot 

be ordered executed until appellate review is completed
CHAPTER FIVE Criminal and Military Justice 241

-- Members are placed in mandatory excess leave (non-pay) status (also known as 

“appellate leave”) in cases where a punitive discharge is approved by the convening authority and confinement, approved by the convening authority, has 

been completed. When no confinement is adjudged, and a punitive discharge 

is approved, excess leave (“appellate leave”) should start when the convening 

authority takes action.

-- Once appellate review is complete, the convening authority, or successor, must 

take additional action to execute the punitive discharge by publishing a Final 

Court-Martial Order, which will be drafted for the Convening Authority’s signature 

by the Staff Judge Advocate’s Office

- The Judge Advocate General is the review authority in general courts-martial where 

the sentence does not include death, punitive discharge, or confinement for one year 

or more. The Judge Advocate General may elect to certify any case to the AFCCA for 

further review.

- A judge advocate will conduct a review of all summary courts-martial and special 

courts-martial that do not include a punitive discharge or one year confinement 

(unless the accused waives appellate review)

- Appellate review is not required for cases where the accused was acquitted on all 

charges

References

UCMJ Arts. 57(a), 58(b), 60, 66-69 and 76a 

Rule for Courts-Martial 1101-07, 1201-05 (2015)

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016
242 The Military Commander and the Law
243

Total Force: Air Reserve Component (ARC)..................................................................................244

Active Guard and Reserve Curtailments.......................................................................................248

Reassignment to the Individual Ready Reserve.........................................................................250

Debarment ..............................................................................................................................................254

Driving Privileges..................................................................................................................................257

Army and Air Force Exchange Service and Commissary Benefits........................................260

Substance Abuse...................................................................................................................................263

Private Organizations...........................................................................................................................272

Free Speech, Demonstrations, Open Houses and Hate Groups...........................................276

Religious Issues in the Air Force.......................................................................................................279

Social Media ............................................................................................................................................288

Freedom of Information Act (FOIA) ................................................................................................291

Privacy Act ...............................................................................................................................................295

Return of Military Personnel, Employees, and Family Members From Overseas 

for Trial................................................................................................................................................300

Citizenship for Military Members....................................................................................................303

The Air Force Review Boards Agency.............................................................................................306

CHAPTER SIX: PERSONNEL ISSUES FOR

6

THE COMMANDER—GENERALLY
244 The Military Commander and the Law

TOTAL FORCE: AIR RESERVE COMPONENT (ARC)

Regular Air Force, Air National Guard (ANG), and Air Force Reserve (AFR) Airmen work 

together as a team in air, space, and cyberspace worldwide. Together, the AFR and ANG 

make up the Air Reserve Component (ARC). The ARC's mission is to provide combat ready 

forces to the the Air Force whenever needed.

ARC Personnel Categories

- Ready Reserve: Includes the Selected Reserve and Individual Ready Reserve who 

are available to be involuntarily ordered to active duty in time of war or national 

emergency, pursuant to 10 U.S.C. §§ 12301 and 12302

-- Selected Reserve: Those units and individuals within the Ready Reserve approved 

by the Joint Chiefs of Staff as so essential to initial wartime missions that they 

have priority over all other reserves. It includes traditional reservists, individual 

mobilization augmentees (IMA), active guard reservists (AGR), and military 

technicians.

-- Individual Ready Reserve (IRR): Individuals who have had training and previous 

experience in the Regular component or the Selected Reserve and still have a 

military service obligation

-- Includes all ANG (including inactive National Guard (ING))

- Active Guard Reserve (AGR): Reservists on full-time active duty (AD) for the purpose 

of administering, recruiting, instructing or training Reserve Component units, or 

performing duties prescribed in 10 U.S.C. § 12310. AGRs are assigned in a mobilization 

position in the unit they support.

- Standby Reserve: Pool of trained individuals (other than those in the Ready Reserve or 

Retired Reserve) who could be ordered to active duty only in time of war or national 

emergency

- Retired Reserve: Reservists who have at least 20 years of service and are either waiting 

to turn 60 years of age to collect retirement pay (nicknamed a “Gray Area” retiree) or 

are over age 60 and receiving retirement pay
CHAPTER SIX Personnel Issues for the Commander—Generally 245

- Regular Active Duty Retired: May be ordered to active duty by the Secretary of the 

Air Force (SecAF) if deemed necessary for the national defense

Air Force Reserve (AFR)

- AFR is an integrated Total Force partner in every Air Force core mission, providing 

combat-ready forces to fly, fight, and win. In addition to categories (above), participating reservists hold a duty status.

- Types of Reserve Personnel Duty Status:

-- Air Reserve Technician (ART): Members are full-time federal civil service employees 

of an Air Force reserve unit and serve in dual roles as both civilians and Reserve 

Airmen

-- Traditional Reservist (CAT A): Assigned to stand-alone reserve units

--- Required to perform annual training (AT) 12 weekends during unit training 

assemblies (UTAs) in inactive duty training (IDT) status (each UTA day counts 

for 2 IDTs , for a total 48 IDTs required)

--- Also required to perform 15 days of active duty service per year 

-- Individual Mobilization Augmentees (IMAs) (CAT B): Attached to and augment 

active-component and government agency missions and are rated by active 

duty or government agency supervisors

--- Required to perform 12 days of IDT per year (2 IDT periods per day for a total 

of 24 IDTs) and 12-14 annual days of active duty service per year

--- IMAs may volunteer for additional active duty orders or be mobilized to fill 

Air Force mission requirements

-- Participating Individual Ready Reservist (PIRRs): Attached to an active duty unit 

and participate for points towards retirement
246 The Military Commander and the Law

Air National Guard (ANG)

- ANG members have a dual-role based on the Militia Clause of U.S. Constitution, Art. 1, 

sec. 8

-- Federal Role (Title 10): Mission is to maintain well-trained, well-equipped units 

available for prompt mobilization under Title 10 of the United States Code during 

war and national emergencies

-- State Role (Title 32): Mission is to provide trained, organized and disciplined units 

and individuals to protect life, property, and preserve peace, order and public 

safety within the state or territory by providing emergency relief support, search 

and rescue, support to civil defense authorities and counterdrug operations

-- There are also National Guard technicians or military technicians (MTs) who are 

federal civilian employees occupying technician positions. They must be members of both state ANG and federal civil service.

- ANG Required Training: 12 weekends of IDTs (2 IDTs per day for a total of 48 IDTs) and 

15 days of active duty service per year

Administrative and Disciplinary Action

- Air Force Reservists:

-- Reservists are subject to the UCMJ while in active duty status and inactive duty 

training status

-- Address questions of alleged misconduct involving IMA reservists to their active 

duty staff judge advocate (SJA) who coordinates with HQ AFRC/JA

-- Address questions about alleged misconduct involving Traditional Reservists and 

ARTs to their reserve unit’s SJA

-- If deployed, look to member’s activation orders for guidance
CHAPTER SIX Personnel Issues for the Commander—Generally 247

- Air National Guard Members:

-- Misconduct of ANG members is governed by the member’s status at the time of 

the action. ANG personnel are only subject to the UCMJ when “in federal service” 

UCMJ Art. 2(a)(3).

-- Activation orders show if member is in Title 10 or Title 32 status and where 

assigned for administrative control/operational control

-- If in Title 10 status, contact local SJA, who will coordinate with the 201st MSS/JA 

at DSN 612-8614

-- If in Title 32 status, contact local SJA, who will coordinate with the member’s 

home unit SJA (unless orders direct otherwise)

-- If a MT, contact local SJA, who will coordinate through member’s home unit (if in 

military status) or the applicable State Human Resources Office (if in civilian status)

References

U.S. Const. Art. 1, § 8

UCMJ Art. 2(a)(3)

Reserve Officer Personnel Management Act, 10 U.S.C. §§ 10141-10154

Reserve Forces Revitalization Act of 1996, 10 U.S.C. § 10215-10218

Reserve Forces Act of 1955, 10 U.S.C. § 12301, et seq.

DoDI 1215.06, Uniform Reserve, Training, and Retirement Categories for the Reserve 

Components (11 March 2014), incorporating Change 1, 19 May 2015

AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve 

Members (14 April 2005), incorporating through Change 3, 20 September 2011
248 The Military Commander and the Law

ACTIVE GUARD AND RESERVE CURTAILMENTS

The Air Force Reserve (AFR) Active Guard and Reserve (AGR) Program is established by 

Department of Defense policy and implemented in AFI 36-2132, Vol. 2, Active Guard/

Reserve (AGR) Program. The AGR career program provides an AGR with career opportunities for promotion, career progression, retention, education, and professional development. This program may lead to an active duty retirement after attaining the required 

years of Federal service.

- Initial entry into the AGR Program is by individual application for selection for assignment. Initial assignment length is normally 4 years, except for colonels for whom the 

initial assignment length is 3 years.

- An AGR has career status upon being accepted into the AGR career program. An AGR 

is accepted into the career program (1) when accepted by an AGR review board, (2) 

when orders enable the AGR to exceed the 6-year probationary period as an AGR, or 

(3) when the AGR reaches sanctuary, as established in AFI 36-2131, Administration of 

Sanctuary in the Air Reserve Component.

- A voluntary release from an AGR tour is referred to as a curtailment

-- AGRs may request a curtailment of an AGR tour based on position realignment, 

personal hardship, retirement or other valid reasons

-- AGRs submit a curtailment request through the chain of command to arrive at 

AFRC/A1A or AFRC/A1L at least 120 days prior to and no more than 365 days 

before requested date of separation (DOS)

-- Curtailment requests for the purpose of retirement must be received by AFRC/

A1A (AFRC/A1L for colonel positions) no later than 60 days prior to the requested 

permissive temporary duty assignment (TDY)/terminal leave start date but not 

less than 120 days before retirement date

- Involuntary Curtailment: Commanders considering involuntary curtailment should 

use all quality force management tools available prior to initiating an involuntary 

curtailment

-- Depending on the nature of the involuntary curtailment, commanders should 

consider discharge in lieu of involuntary curtailment

-- Commanders should consult with AFRC/A1A (AFRC/A1L for colonels) and their 

servicing legal office to determine if an involuntary curtailment is appropriate
CHAPTER SIX Personnel Issues for the Commander—Generally 249

References

DoDI 1205.18, Full-Time Support (FTS) to the Reserve Components (12 May 2014), incorporating 

Change 1, 19 May 2015

AFI 36-2131, Administration of Sanctuary in the Air Force Reserve Components (27 July 2011) 

AFI 36-2132, Volume 2, Active Guard/Reserve (AGR) Program (20 March 2012), incorporating 

Change 1, 10 February 2014, with administrative changes, 28 April 2016
250 The Military Commander and the Law

REASSIGNMENT TO THE INDIVIDUAL READY RESERVE

The Individual Ready Reserve (IRR) is a manpower pool consisting of individuals who have 

had some training and who have served previously in the active component or in the 

Selected Reserve. Members may voluntarily participate in training for retirement points 

and promotion, in accordance with AFI 36-2254, Vol. 1, Reserve Personnel Participation. 

Transfers to the IRR may be voluntary or involuntary.

Voluntary Reassignment to the IRR

- Members who no longer desire to actively participate in the Air Force Reserve may 

request to be reassigned to the IRR

- Commanders MUST deny “voluntary” requests for reassignment to the IRR when 

discharge is more appropriate

- Application: Members request reassignment to the IRR by submitting AF IMT 1288, 

Application for Ready Reserve Assignment or a personal letter to the wing commander 

or equivalent (unit reserve program) or to the Readiness Integration Organization 

(RIO) detachment commander (Individual Mobalization Augmentee (IMA) program)

-- As part of the completion of AF IMT 1288, members must certify that they either 

have or have not received an Unfavorable Information File (UIF) within the last 

2 years (enlisted) or 5 years (officers). If the member has had a UIF during this 

period, the last five OPRs/EPRs must accompany the assignment request.

- Approval Authority: 

-- Wing commander or equivalent (unit program) or the RIO detachment commander (IMA program) is the approval authority for voluntary requests

-- In the unit reserve program, any commander in the chain of command may disapprove a request for reassignment 

-- In the IMA program, the RIO detachment commander may disapprove a request 

for reassignment

-- Approved IRR reassignment requests must have an effective date not earlier 

than 6 months from the date the request is submitted. The wing commander or 

equivalent (unit program) or ARPC/DPR (IMA program) may waive the 6-month 

requirement.
CHAPTER SIX Personnel Issues for the Commander—Generally 251

Involuntary Reassignment to the IRR

- Involuntary reassignment to the IRR from the Ready Reserve for cause is generally 

inappropriate

-- Use involuntary reassignment only as a last resort

-- Initiate involuntary reassignment for cause or derogatory reasons only after all 

appropriate disciplinary and/or administrative actions have been taken and 

documented

-- Consider exceptions to these policies on a case-by-case basis

- Involuntary reassignment is not a substitute for discharge. If administrative discharge 

is warranted, process in accordance with AFI 36-3209, Separation and Retirement 

Procedures for Air National Guard and Air Force Reserve Members.

- Appropriate Situations: Some potential situations where involuntary reassignment 

may be appropriate include (but are not limited to):

-- Unexcused Absences: In the unit reserve program, if a member has nine or more 

unexcused absences from Unit Training Assemblies (UTAs) in a 12-month period, 

commanders should reassign the member to the IRR (if not discharging the 

member)

-- Repeated Fitness Failures: Members who fail to meet minimum fitness standards 

for reasons other than documented disability may be discharged in accordance 

with the standards laid out in AFI 40-501, The Air Force Fitness Program

-- Health Assessment Non-compliance: Failure to comply with requirement for reserve 

component periodic health assessment

-- Whereabouts Unknown: Member not immediately available (whereabouts 

unknown), but not Missing in Action

- Evaluation: Unit commander (or RIO detachment commander, for IMAs) will examine 

and evaluate any information received that indicates a member should be considered 

for involuntary reassignment
252 The Military Commander and the Law

- Memorandum of Notification: If a commander determines grounds exist to warrant 

initiation of involuntary reassignment action, a memorandum of notification (MON) 

is sent to the member in accordance with AFI 36-2115, Assignments Within The Reserve 

Component. A sample MON is provided in the AFI at Attachment 5, and includes a list 

of information which must be provided to the member.

-- Personally Deliver: When feasible, the MON should be personally delivered to 

the member

--- Delivering official must obtain a written acknowledgement of receipt, and a 

sample is provided at AFI 36-2115, Attachment 6

--- If member refuses to acknowledge receipt, the delivery official makes an 

annotation to that effect on the receipt, including the date and time of delivery of the notification. The receipt should be kept in the case file.

-- Certified Mail: When personal delivery is not feasible, the unit should send the 

MON by certified mail, return receipt requested, to the member’s last known 

address

--- If attempts to deliver the MON by certified mail are unsuccessful, send the 

MON by first class mail using the format at AFI 36-2115, Attachment 7

--- If the member resides outside the United States, an equivalent form of notice 

may be used

-- Undelivered: If postal service returns the MON without indicating a more current 

address, file the returned envelope in the case file and request verification of last 

permanent mailing address from the postmaster using the format at AFI 36-2115, 

Attachment 8

--- If an address correction is received, send the MON to the member at that 

address.

--- If all attempts to deliver the MON by certified and first class mail are unsuccessful, complete the Affidavit of Service by Mail at AFI 36-2115, Attachment 9
CHAPTER SIX Personnel Issues for the Commander—Generally 253

-- Review:

--- Member: Member must be allowed 15 calendar days after receipt of the MON 

to consult with legal counsel and submit statements or documents on his or 

her behalf. If the member fails to submit statements or documents during this 

time period, the case may be processed based on the information available, 

without further notice to the member.

--- Commander: The commander reviews any matters submitted by the member 

and determines whether to continue involuntary reassignment action

-- Determination: 

--- If the commander elects to continue the involuntary reassignment action, 

the case file must be processed through the servicing staff judge advocate 

and chain of command to the approval authority

--- The approval authority reviews the case to determine whether the facts are 

properly substantiated. The approval authority then approves or denies the 

reassignment and notifies the member.

- It is in the best interest of both the Air Force and the member to process the case as 

expeditiously as possible. Commanders should monitor the process to ensure cases 

are processed without undue delay.

References

AFI 36-2115, Assignments within the Reserve Components (8 April 2005), certified current, 

2 May 2008

AFI 36-2254, Volume 1, Reserve Personnel Participation (26 May 2010)

AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve 

Members (14 April 2005), incorporating through Change 3, 20 September 2011

AF IMT 1288, Application for Ready Reserve Assignment
254 The Military Commander and the Law

DEBARMENT

Installation commanders have broad authority to control activities on their installations, 

including the authority to remove or exclude any person whose presence on the installation is unauthorized or disrupts good order and discipline. This authority enables a commander to fulfill his or her responsibilities to protect personnel and property, to maintain 

good order and discipline, and to ensure the successful, uninterrupted performance of 

the DoD mission. The terms debarment, barment, and barred are often used interchangeably to mean that an individual is no longer permitted access to a DoD installation.

Commander’s Responsibilities and Options

- An installation commander’s decision to remove or exclude a person from the installation is subject to judicial review

-- However, the decision is given substantial deference and will not be overturned 

unless proven to be arbitrary or capricious

-- An illegal debarment could subject a commander to personal civil liability in a 

lawsuit

- An installation commander may not delegate the authority to debar an individual 

from an installation to a subordinate

Who is Subject to Debarment?

- Members of the armed forces are not normally debarred. Service members being 

involuntarily separated may, in conjunction with their discharge, be debarred for 

good cause.

- Civilians may be debarred from a military installation

- Dependent family members and retirees may be debarred from an installation, but 

they must still be granted access to the installation to receive any medical care they 

are entitled to (a statutory right–10 U.S.C. §§ 1074, 1076)

- Civilian employees may be debarred, but they should be removed from federal service before being debarred

-- Otherwise, the employee may still be entitled to collect a salary
CHAPTER SIX Personnel Issues for the Commander—Generally 255

-- Check with the Civilian Personnel Office to determine if the local collective 

bargaining agreement, should one exist, contains additional due process 

requirements

- Salespersons and businesses may be debarred for misconduct. Misconduct may lead 

to debarment of a single agent or an entire firm.

- Contractor employees may be debarred for misconduct. Contractor employees with 

security clearances are not entitled to greater protection from debarment.

- Possession, distribution, or use of drugs is commonly used as a good cause for 

debarment, while exceeding weight standards, on the other hand, would not be a 

good reason

Procedural Requirements

- A person who is debarred from an installation should be notified, in writing, that he or 

she is prohibited from entering the installation. The notification (called a “debarment 

letter”) should state the reason for and period of the debarment.

- Determining the debarment period is a matter of discretion

-- Commanders should consider the individual, the reason for the proposed debarment, and the need for good order, discipline, and security. The bottom line is 

what is reasonable given all the circumstances.

-- Length of the debarment period should be stated in the debarment letter. The 

commander may debar an individual for a specific length of time or, in appropriate cases, the debarment may be for an indefinite period of time.

- Individual can ask the installation commander to lift the debarment at any time, 

regardless of whether the debarment is for a set period or indefinite

- A copy of the debarment letter should be hand-delivered to the individual or sent 

by certified mail to ensure a record of receipt

- An individual who enters an installation after receiving notice of debarment from 

the installation commander is subject to federal criminal prosecution under Entering 

Military Naval or Coast Guard Property, 18 U.S.C. § 1382. Maximum penalty for violation 

of the law is 6 months confinement and a $500 fine.
256 The Military Commander and the Law

References

10 U.S.C. § 1076

18 U.S.C. § 1382

50 U.S.C. § 797

DoDI 5200.08, Security of DoD Installations and Resources and the DoD Physical Security Review 

Board (PSRB) (10 December 2005), incorporating through Change 3, 20 November 2015

32 C.F.R. § 809a (2015) 

DTM 09-012, Interim Policy Guidance for DoD Physical Access Control (8 December 2009), 

incorporating through Change 6, 20 November 2015

AFMAN 31-113, Installation Perimeter Access Control (FOUO) (2 February 2015), incorporating 

Change 1, 27 July 2015
CHAPTER SIX Personnel Issues for the Commander—Generally 257

DRIVING PRIVILEGES

Driving on a military installation, whether in a government owned vehicle (GOV) or a 

privately owned vehicle (POV) is a privilege granted by the installation commander or 

designee. This authority may be delegated to the vice commander, mission support group 

commander, or other appropriate official not occupying a law enforcement, investigative, 

or other position raising the appearance of a conflict of interest.

Operating a POV on the Installation

- A person must do the following in order to drive on an Air Force installation:

-- Lawfully be licensed to operate motor vehicles in appropriate classifications and 

not under suspension or revocation in any state or host country

-- Comply with all laws and regulations governing motor vehicle operations on base

-- Comply with installation vehicle registration requirements

-- Possess, while operating a motor vehicle, and produce on request the following:

--- Proof of ownership or state registration, if required by state of host nation;

--- A valid state driver’s license (or host nation/status of forces agreement (SOFA) 

license);

--- A valid vehicle safety inspection sticker, if required by state or host nation;

--- Documents that establish identification and status of cargo and vehicle 

occupants, when appropriate;

--- Proof of valid insurance; and

--- Operators of GOVs must have proof of authorization to operate the vehicle

Implied Consent

- When operating a motor vehicle on a military installation, a driver gives implied 

consent in a number of areas:

-- Consent to test for the presence of alcohol or drugs in their blood, on their breath, 

and in their urine, provided there is a lawful stop, apprehension, or citation for 
258 The Military Commander and the Law

any impaired driving offense committed while driving or in physical control of a 

motor vehicle on a military installation

-- Consent to the removal and temporary impoundment of their POVs if it is (1) illegally parked; (2) interfering with military operations; (3) creating a safety hazard; 

(4) disabled by accident or incident; (5) abandoned; or (6) left unattended in a 

restricted or controlled access area

Suspension

- Installation commander can administratively suspend or revoke installation driving 

privileges 

-- A suspension of up to 6 months may be appropriate if a driver continually violates 

installation parking standards, or habitually receives other non-moving vehicle 

violations 

-- Installation commander will immediately suspend installation driving privileges 

pending resolution of an intoxicated driving incident under any of the following 

circumstances:

--- Refusal to take or complete a lawfully requested chemical test for the presence of alcohol or other drugs in the driver’s system

--- Operating a motor vehicle with blood alcohol content (BAC) or breath alcohol content (BRAC) of 0.08 percent by volume or higher, or in excess of the 

applicable BAC or BRAC level in the local civilian jurisdiction, whichever is 

applicable

--- Receipt of an arrest report or other official document reasonably showing 

an intoxicated driving incident occurred within a reasonable time period

Revocation

- Installation commander will immediately revoke driving privileges for a period of not 

less than 1 year in any of the following circumstances:

-- Person is lawfully apprehended for intoxicated driving and refuses to submit to 

or complete tests to measure blood alcohol or drug content
CHAPTER SIX Personnel Issues for the Commander—Generally 259

-- Conviction, nonjudicial punishment, or a military or civilian administrative action 

resulting in the suspension or revocation of a driver’s license for intoxicated 

driving

-- Installation commander determines an immediate revocation is required to 

preserve public safety or the good order and discipline of military personnel

Procedures

- A point system is used on-base to provide a uniform administrative device to supervise traffic offenses impartially. Points are assessed for violations of motor vehicle traffic regulations for on-base and off-base traffic offenses. Certain procedural guidelines 

apply before an individual’s driving privilege may be suspended or revoked.

-- Individual has the right to a hearing before a designated hearing officer. Individual must be notified of his or her right to a hearing, but it is only held if the 

individual requests it within the prescribed time period.

-- A suspension for a driving while intoxicated offense may be effective immediately 

if based on reliable evidence. Such evidence can include witness statements, a 

military or civilian police report, chemical test results, refusal to complete chemical testing, video tapes, written statements, field sobriety test results, or other 

evidence.

- Civilian offenders may be prosecuted in Federal Magistrate Court for on-base traffic 

offenses., however, this is subject to the type of installation jurisdiction where the 

offense occurred. Installation commanders are authorized to prescribe installation 

traffic rules.

References

AFMAN 31-116, Air Force Motor Vehicle Traffic Supervision (18 December 2015) 

AFI 31-101, Integrated Defense (FOUO) (8 October 2009), incorporating through Change 2, 

7 March 2013, including AFI31-101_AFGM2015-01, 21 May 2015

AFI 31-218(I), Motor Vehicle Traffic Supervision (22 May 2006), certified current 15 July 2011, 

including AFI31-218_AFGM2015-01, 10 March 2015
260 The Military Commander and the Law

ARMY AND AIR FORCE EXCHANGE SERVICE AND 

COMMISSARY BENEFITS

Although DoD directives and service regulations govern exchange and commissary 

benefits, commanders may exercise some discretion in granting, suspending, or revoking privileges.

Exchange

- Army and Air Force Exchange Service (AAFES): The establishment of an exchange is 

authorized by the Departments of the Army and the Air Force at each installation 

where extended active duty military personnel are present and assigned for duty

- An exchange may be established at other locations, such as state-operated National 

Guard installations or Reserve Training Centers, provided it is cost-effective

Exchange Privileges

- Unlimited exchange privileges extend to all uniformed, retired, and and other personnel (such as Medal of Honor recipients) and their dependents

- Unlimited exchange privileges may be extended to government departments or 

agencies outside the DoD when:

-- Local commander determines the desired supplies or services cannot be conveniently obtained elsewhere, and

-- Supplies or services can be furnished without unduly impairing the service to 

exchange patrons

- Limited exchange privileges extend to some government civilian employees and to 

others, such as members of foreign military services visiting a military installation

- In non-foreign areas outside the Continental United States, e.g., Alaska, Hawaii, and 

Puerto Rico, the responsible commander may extend limited or unlimited privileges 

to other personnel or organizations if it is in the best interest of the mission of the 

command concerned

- Exceptions involving patron privileges are based on alleviating personal hardships 

and may only be granted by the Secretary of the department concerned upon request 

by the installation commander through command channels
CHAPTER SIX Personnel Issues for the Commander—Generally 261

Abuse of Exchange Privileges

- Exchange patrons are prohibited from abusing privileges, including:

-- Purchasing items for the purposes of resale, transfer, or exchange to unauthorized 

persons

-- Using exchange merchandise or services in the conduct of any activity for the 

production of income

-- Theft, intentional or repeated presentation of dishonored checks, and other 

indebtedness

Commander Actions when Abuse of Exchange Privileges Occurs

- When an abuse of privileges occurs, the commander will take prompt disciplinary and 

other appropriate action, such as revocation or suspension of exchange privileges

-- Commanders may revoke exchange privileges for any period deemed appropriate, except the minimum period of revocation is 6 months for shoplifting, 

employee pilferage, and intentional presentation of dishonored checks

-- Individual concerned will be provided notice of the charges and the opportunity 

to offer rebutting evidence

-- On appeal, the commander who revoked the privileges, or the next higher commander, may reinstate exchange privileges for cogent and compelling reasons

Commissary Privileges

- The DoD operates commissaries as an integral element of the military pay and benefits system and as an institutional element to foster the sense of community among 

military personnel and their families. The intent of patronage is to provide an income 

effect benefit through savings on food and household items necessary to subsist and 

maintain the household of the military family.

- Authorized Patrons:

-- Several classes of individuals are authorized commissary privileges by regulation, 

including: active duty and their dependent family members, retired personnel 

and their dependent family members, reservists, and others
262 The Military Commander and the Law

-- At overseas locations, military commanders or Secretaries of military departments may extend commissary privileges to certain individuals and groups of 

individuals, provided it is without detriment to the ability to fulfill the military 

mission

- Restrictions on Purchases:

-- Authorized personnel may not sell or give away commissary purchases to individuals or groups not entitled to commissary privileges

-- Personnel are prohibited from using commissary purchases to support a private 

business

-- Sanctions for violating restrictions on purchases range from temporary suspension or permanent revocation of commissary privileges to appropriate action 

under regulation, UCMJ, or federal or state law

Appointing Agents for Authorized Users

- An installation commander is authorized to extend exchange and commissary privileges to the agent of an authorized user. Appointment typically occurs when the 

authorized user is unable to exercise their privileges on their own behalf.

References

DoDI 1330.17, DoD Commissary Program (18 June 2014)

AFI 34-211(I), Army and Air Force Exchange Service Operations (5 October 2012)
CHAPTER SIX Personnel Issues for the Commander—Generally 263

SUBSTANCE ABUSE

Air Force Drug Use Policy

- Military and civilian personnel are expected to refrain from drug abuse and maintain 

standards of behavior, performance, and discipline consistent with the UCMJ, public 

law, and Air Force policy

- Illegal use of drugs by Air Force members is a serious breach of discipline that is 

incompatible with Air Force standards. This misconduct places the member’s continued service in jeopardy and could lead to action resulting in a punitive discharge 

or an administrative discharge under other than honorable conditions.

Air Force Alcohol Abuse Policy

- The Air Force recognizes that alcohol misuse negatively affects public behavior, duty 

performance, and physical and mental health

- The Air Force provides comprehensive clinical assistance to eligible beneficiaries 

seeking help for alcohol abuse problems

Unit Commanders and Supervisor Responsibilities

- Observe and document the performance and conduct of subordinates and direct 

immediate supervisors to do the same

- Evaluate potential or identified abusers through the evaluation process of AFI 44-121, 

Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program

- Provide appropriate incentives to encourage members to seek help for problems 

with drugs or alcohol without fear of negative consequences

- Commander is responsible for and has control of all personnel, administrative, and 

disciplinary actions pertaining to members involved in the Air Force ADAPT program

- Command involvement is critical to a comprehensive treatment program, as well as 

during aftercare and follow-up services. The commander shall also provide command 

authority to implement the treatment plan when the member does not voluntarily 

comply.
264 The Military Commander and the Law

Abuser Identification (Military Members)

- Self-Identification (Drug Abuse): Members who voluntarily disclose prior drug use or 

possession are granted limited protections. Such disclosure may not be used against 

the member in UCMJ actions or in characterizing an administrative discharge as long 

as he or she:

-- Is seeking treatment and voluntarily discloses evidence of personal drug use or 

possession to the unit commander, first sergeant, substance use/misuse evaluator or a military medical professional; and

-- Has not previously been apprehended for drug involvement, placed under investigation for drug abuse, ordered to give a urine sample as part of the drug-testing 

program in which the which the results are still pending or have been returned 

as positive, advised of a recommendation for administrative separation for drug 

abuse, or has entered treatment for drug abuse

-- The limited protection available for self-identification does not apply to disciplinary or other action based on independently derived evidence (other than the 

results of a commander-directed drug test), including evidence of continued 

drug abuse after the member initially entered a treatment program

- Self-Identification (Alcohol Abuse): Air Force members with substance alcohol abuse 

problems are encouraged to seek assistance from their commander, first sergeant, a 

military medical professional, or mental health professional

-- Self-identification is reserved for members who are not currently under investigation or pending action as a result of an alcohol related misconduct

-- Self-identified members who enter the ADAPT assessment process will be held 

to the same standards as others entering substance abuse and misuse education, 

counseling and treatment programs. However, if the member is not diagnosed 

with a substance use disorder, the member’s chain of command will not be 

notified.

- Commander Referral: A unit commander will refer all service members for assessment when substance use or misuse is suspected to be a contributing factor in any 

misconduct, e.g., driving under the influence (DUI)/driving while intoxicated (DWI), 

public intoxication, drunk and disorderly, spouse/child abuse and maltreatment, 

underage drinking, positive drug test, or when notified by medical personnel pursuant to AFI 44-121
CHAPTER SIX Personnel Issues for the Commander—Generally 265

-- Commanders should also refer a member for assessment when drugs or alcohol 

are thought to be a contributing factor in any incident, such as deteriorating duty 

performance, excessive tardiness, absenteeism, misconduct, or unacceptable 

social behavior

-- Commanders who fail to comply with this requirement place members at 

increased risk for developing severe substance problems and jeopardize the 

mission

- Incident to Medical Care: Medical personnel must notify a member’s unit commander 

and the ADAPT program manager when a member is observed, identified, or suspected to be under the influence of drugs or alcohol, receives treatment for any 

injury or illness that may be the result of substance abuse or is suspected of abusing 

substances

- Random Drug Testing: Positive drug test results mandate a substance abuse evaluation

- Probable Cause Searches: Commanders who receive information of a positive drug 

test conducted pursuant to a probable cause search must refer the member for a 

substance abuse assessment

- Inspections: Commanders may order inspections (to include urinalysis) of his/her 

unit, in whole or in part, pursuant to Military Rule of Evidence (MRE) 313 so long as 

the primary purpose is to determine and to ensure the security, military fitness, or 

good order and discipline of the unit

-- Positive drug test results mandate a substance abuse evaluation

Substance Abuse Assessment

- The ADAPT program attempts to identify and provide assistance to military members 

with drug problems, but the focus of the ADAPT program is prevention and clinical 

treatment

-- ADAPT staff members evaluate all members suspected of drug or alcohol abuse 

in order to help the commander understand the extent of the substance abuse 

problem and to determine the patient’s need for treatment and the level of care 

required

-- Except in cases of self-identification, personal information provided by the 

member in response to assessment questions MAY be used against the member 

in a court-martial or considered for characterizing service in an administrative 

discharge
266 The Military Commander and the Law

- Before the assessment, the patient is advised of the ADAPT program’s nature, the 

limits on confidentiality, the Privacy Act, and the Health Insurance Portability and 

Accountability Act (HIPAA), the responsibilities of the ADAPT staff, the purpose, access 

and disposition of mental health records and the potential consequences of refusing 

assessment, preventive counseling and/or treatment

- Upon completion of the assessment, the information gathered will form the basis 

for patient diagnosis, treatment planning, and delivery of substance abuse services. 

Assessment results for individuals who are charged with DUI or DWI will be provided 

to the patient’s commander.

- Information is presented to the Treatment Team (TT) so that the TT may develop and 

guide the clinical course of treatment. The TT decides the proper course of action and 

treatment plan for the client after examining all the facts presented.

- TT is comprised of:

-- Commander and/or first sergeant. These individuals must be involved at program 

entry, termination and any time there are significant treatment difficulties with 

the patient.

-- Patient’s immediate supervisor

-- ADAPT program manager

-- Certified substance abuse counselor

-- Mental health provider currently involved in patient care

-- The patient, unless deemed clinically inappropriate

Management of Drug and Alcohol Abusers

- Tools available to the unit commander to manage drug abusers include:

-- Nonjudicial punishment under UCMJ, Art. 15

-- Court-martial

-- Line of Duty (LOD) determinations, when appropriate in accordance with AFI 

36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCOM) and 

Incapacitation (INCAP) Pay)
CHAPTER SIX Personnel Issues for the Commander—Generally 267

-- Action involving security clearance, access to classified information, or access 

to restricted areas in accordance with AFI 31-501, Personnel Security Program 

Management

-- Suspension from Personnel Reliability Program (AFMAN 13-501)

-- Duty assignment review to determine if member should continue in current 

duties

-- Unfavorable Information File (UIF) or control roster action based on drug related 

misconduct or substandard duty performance in accordance with AFI 36-2907, 

Unfavorable Information File (UIF) Program

-- Separation under AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers and AFI 36-3208, Administrative Separation of Airmen for documented failure to meet standards (members who fail the ADAPT program due 

to refusal to cooperate may be separated)

-- Administrative demotion, withholding of promotion, and denial of reenlistment

Administrative Discharge for Drug Abuse

- Drug abuse is incompatible with military serve and all Airmen who abused drugs, 

even once, are subject to discharge for misconduct

-- Drug abuse is defined in AFI 36-3208 as the illegal, wrongful, or improper use, 

possession, sale, transfer, or introduction onto a military installation of any drug. 

This includes:

--- Improper use of prescription medication

--- Any controlled substance in schedules I, II, III, IV, and V of 21 U.S.C. § 812

--- Any intoxicating substance, other than alcohol, introduced into the body in 

any manner for purposes of altering mood or function

-- Evidence obtained through urinalysis or from the member in connection with 

initial entry in rehabilitation and treatment may be used to establish a basis for 

discharge
268 The Military Commander and the Law

-- Generally, a member found to have abused drugs will be discharged unless the 

member meets ALL SEVEN of the following criteria:

--- Drug abuse is a departure from the member’s usual and customary behavior

--- Drug abuse occurred as the result of drug experimentation

--- Drug abuse does not involve recurring incidents, other than drug 

experimentation

--- Member does not desire to engage in or intend to engage in drug abuse in 

the future

--- Drug abuse under all the circumstances is not likely to recur

--- Member’s continued presence in the Air Force is consistent with the interest 

of the Air Force in maintaining good order and discipline

--- Drug abuse did not involve drug distribution

- It is the member’s burden to prove retention is warranted under these limited criteria

- Similar retention criteria does not exist for officers

Civilian Employees (Drug Abuse)

- The Air Force Civilian Drug Testing Program is designed to achieve a drug-free workplace, consistent with Executive Order 12564 and 5 U.S.C. § 7301

- AFI 90-508, Air Force Civilian Drug Demand Reduction Program, provides policy and 

procedures to prevent, reduce and eliminate illicit drug use and rehabilitate and treat 

civilian drug abusers

- Similar to military members, civilian employees who self-identify for illicit drug use 

are provided a “safe haven” from disciplinary action if they:

-- Voluntarily identify themselves as a user of illicit drugs prior to being notified of 

the requirement to provide a specimen for testing or being identified through 

other means (e.g., drug testing, investigation)

-- Obtain and cooperates with appropriate counseling or rehabilitation
CHAPTER SIX Personnel Issues for the Commander—Generally 269

-- Agree to and signs a last chance or statement of agreement

-- Thereafter refrain from illicit drug use

- Commanders and supervisors must be alert to behaviors that could indicate a substance abuse problem and advise employees they may voluntarily seek assessment 

and treatment referral services

- Commanders should consult with the Civilian Personnel Section and/or the legal 

office if they suspect a civilian employee’s poor performance, discipline or conduct 

may be caused by drug abuse

Civilian Employees (Alcohol Abuse)

- AFI 90-508 provides an overview of the counseling and assistance available to rehabilitate civilian employees who abuse alcohol

- Under the Rehabilitation Act, alcohol abuse may be considered a disability that 

entitles an employee to special considerations. Be sure to consult with the staff judge 

advocate (SJA) and Civilian Personnel Section if such issues arise.

Legal Aspects of Alcohol Related Issues

- Drunk Driving: Operation of a motor vehicle while under the influence of alcohol 

or driving while intoxicated, on or off the installation, is a serious offense and is 

incompatible with Air Force standards

-- Military members who commit this offense are subject to punitive action under 

the UCMJ

-- Civilian employees apprehended for DUI on exclusive or concurrent federal jurisdiction installations are subject to prosecution in U.S. Magistrate Court

-- A DUI conviction, in either state or federal court, will subject the individual to 

revocation of on-base driving privileges

- Minimum Drinking Age: The minimum age for purchasing, possessing, or consuming 

alcoholic beverages on Air Force installations will be consistent with the law of the 

state, territory, possession, or foreign country in which the installation is located. 

Adults may only furnish alcohol to minors in accordance with applicable state law.

-- Air Force members who violate these restrictions may be punished under Article 

92, UCMJ, for a violation of AFI 34-219, Alcoholic Beverage Program
270 The Military Commander and the Law

-- When an entire unit marks a unique or non-routine military occasion on a military 

installation, the minimum drinking age for military attendees at a particular unit 

gathering may be lowered. However, the minimum drinking age must be 18 or 

above.

-- Military personnel 18 years old or older may purchase, serve, sell, possess, and 

consume alcoholic beverages outside the United States, its territories, and possession unless a higher drinking-age requirement exists in accordance with local 

laws (e.g., the drinking age in Canada is 19, the drinking age in Japan is 20)

- Dram Shop Liability: The “Dram Shop” theory is a legal theory of liability, created 

either by statute or court decision, which imposes upon the owner, operator, 

and/or employees of any establishment serving alcoholic beverages the duty to 

refuse to serve additional alcoholic beverages to a customer who reaches or appears 

to be reaching the point of intoxication 

-- When an establishment continues to sell alcoholic beverages to such a customer 

and the customer subsequently departs and causes harm to himself or herself, 

or to others, the owner, operator, and (or) employees of the establishment can 

be held liable for damages 

-- To protect the assets and interests of the Air Force, organizations and staff that 

serve alcoholic beverages must adhere to the following procedures:

--- Operating Instructions (OIs) are written and published that prohibit personnel from serving alcoholic beverages to individuals who appear intoxicated 

or close to being intoxicated

--- Staff that serve alcoholic beverages acknowledge their understanding of this 

policy in their employee work folders

--- Ensure proper safeguards or controls to protect the welfare of an intoxicated 

patron are implemented

--- Promptly report any incident that may result in a potential claim to the Force 

Support Squadron (FSS) commander or civilian leader and SJA

- Private organizations may not sell or serve alcoholic beverages on Air Force installations, subject to narrow exceptions found in AFI 34-219, para. 2.3 for private organization personnel assisting at Morale Welfare & Recreation functions for a fee
CHAPTER SIX Personnel Issues for the Commander—Generally 271

References

UCMJ Art. 15

5 U.S.C. § 7301

Controlled Substance Act, 21 U.S.C. § 812

Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq.

Executive Order 12564, Drug-Free Federal Workplace (1986)

Military Rule of Evidence 313 (2015)

DoD Manual 5210.42, AFMAN 13-501, Nuclear Weapons Personnel Reliability Program (PRP) 

(29 May 2015)

AFI 31-501, Personnel Security Program Management (27 January 2005), incorporating through 

Change 2 (29 November 2012), including AFI31-501_AFGM2015-01, 20 November 2015

AFI 34-219, Alcoholic Beverage Program (4 February 2015)

AFI 36-2907, Unfavorable Information File (UIF) Program (26 November 2014)

AFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCOM) and 

Incapacitation (INCAP) Pay (8 October 2015)

AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers (9 June 2004), 

incorporating through Change 7, 2 July 2013, including AFI36-3206_AFGM2016-01, 

24 June 2016

AFI 36-3208, Administrative Separation of Airmen (9 July 2004), incorporating through Change 7 

(2 July 2013), including AFI36-3208_AFGM2016-01, 24 June 2016

AFI 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program (8 July 2014)

AFI 90-508, Air Force Civilian Drug Demand Reduction Program (28 August 2014), certified 

current, 18 December 2015

.
272 The Military Commander and the Law

PRIVATE ORGANIZATIONS

Definition

- A private organization (PO) is a self-sustaining special interest group, set up by 

people acting outside the scope of any official position they may have in the federal 

government

- POs are NOT integral parts of the military service nor are they federal entities. They 

are NOT nonappropriated fund instrumentalities (NAFIs), nor are they entitled to the 

sovereign immunities and privileges given to NAFIs.

- When an unofficial activity’s or organization’s current monthly assets (which include 

cash inventories, receivables, and investments) exceed a monthly average of $1,000 

over a three month period, the activity or organization must either become a PO, 

discontinue on-base operations, or reduce its current assets

Operating Rules

- Each PO must be approved in writing by the installation commander or designee

- Force support squadron commander or director monitors and advises all POs and 

directs the resource management flight chief to keep a file on each PO

- Resource management flight chief reviews each PO annually to make sure documents, records and procedures are in order

- POs must be self-sustaining and cannot receive direct financial assistance from a NAFI 

in the form of contributions, dividends or donations

- Allowable logistical support to POs is very limited. Consult the staff judge advocate 

(SJA) before providing any support to POs.

- POs with gross revenues of $250,000 or more must have an annual audit done by a 

certified public accountant (CPA). POs with gross revenues of at least $100,000 but 

less than $250,000 must have an annual financial review conducted by an accountant 

(CPA not required). POs with gross revenues of less than $100,000 but more than 

$5,000 are not required to conduct independent audits or financial reviews, but must 

prepare an annual financial statement for review by the resource management flight.
CHAPTER SIX Personnel Issues for the Commander—Generally 273

- Installation staff chaplain should coordinate on requests to establish religiously 

oriented POs

- POs may not unlawfully discriminate on any proscribed basis, including race, color, 

sex, marital status, age, religion, national origin, political affiliation, or physical 

handicap

- Each PO has the responsibility of obtaining adequate insurance or a waiver from the 

requirement to obtain adequate insurance by the installation commander or designee. A waiver of the insurance requirement will not protect the PO or its members 

from valid claims or successful lawsuits.

- POs will not engage in activities that duplicate or compete with activities of the Army 

and Air Force Exchange Service (AAFES) or Services NAFIs

- POs must comply with all applicable federal, state and local laws governing such 

activities. POs desiring tax-exempt status must file an application with the IRS. To 

qualify as tax-exempt organizations for federal tax purposes, POs must be organized 

for one or more of the purposes specifically outlined in the Internal Revenue Code.

- Fundraising by POs is governed by AFI 36-3101, Fundraising Within the Air Force, and 

DoD 5500.07-R, Joint Ethics Regulation (JER)

- POs are prohibited from conducting games of chance, lotteries, or other gambling 

activities, except in very limited circumstances, e.g., certain types of raffles, as set 

forth in AFI 34-223, Private Organizations (PO) Program, para. 10.16, and the JER

- POs may not sell or serve alcoholic beverages subject to the limited exception for PO 

personnel contained in AFI 34-219, Alcoholic Beverage Program, para. 2.3

- POs will not engage in resale activities unless specific authorization is granted. The 

installation commander or designee may authorize occasional sales for fund raising 

purposes such as bake sales, dances, carnivals, and similar infrequent functions.

- “Occasional sales” for fund-raising purposes is specifically defined as not more than 

two fund-raising events per calendar quarter. This prohibition against frequent or 

continuous resale activities does not preclude collective purchasing and sharing of 

purchased items by members of POs or unofficial activities and organizations so long 

as there is no actual resale.
274 The Military Commander and the Law

The Role of Spouses’ Clubs

Officer or NCO spouses’ clubs are POs that the installation commander may authorize 

to operate on base when he or she concludes the organization will make a positive 

contribution to the lives of base personnel.

- Because spouses’ clubs are POs, it is important to remember these organizations are 

composed of individuals “acting outside the scope of any official position they may 

have in the federal government”

- Unlike the Air Force and other instrumentalities of the federal government, which 

have distinct legal and regulatory systems of command, spouses’ clubs have no 

formal lines of authority interconnecting the various base clubs

- Many of the activities that spouses’ clubs engage in are subject to state and federal 

laws and regulations

- POs including spouses' clubs are bound by the terms of their constitutions and bylaws

- To operate on Air Force installations, spouses’ clubs, like other POs, must comply with 

AFI 34-223, governing the basic responsibilities, policies, and practices of private 

organizations. Further, AFI 34-223 defines and classifies POs.

- With the exception of thrift shop sales of used clothing and other used merchandise, 

POs are generally prohibited from engaging in frequent or continuous resale activities and may not operate amusement or slot machines

- Continuous operation of a thrift shop requires specific approval of the installation 

commander (or designee)

- Clubs must get specific permission from the installation commander (or designee) 

to conduct bake sales, carnivals, and other occasional sales for fundraising purposes

Logistical Support to Private Organizations

- Only limited logistical support to POs is permitted. Always consult the SJA.

- Logistical support to POs is permitted when the installation commander determines 

that it meets the follow test under the JER 3-211:

-- Does not interfere with performance of official duties or detract from readiness
CHAPTER SIX Personnel Issues for the Commander—Generally 275

-- Community relations or other public affairs purposes are served by the support

-- It is appropriate to associate DoD with the event

-- Event is of interest and benefits the local community or DoD

-- Base is able and willing to provide comparable support to other similar events

-- Support is not restricted by other statutes

-- There is no admission fee beyond reasonable costs

-- POs in overseas areas can request additional support through the installation 

commander to MAJCOM/A1S

References

DoD 5500.07-R, Joint Ethics Regulation (JER), 30 August 1993, with changes 1 through 7 

(17 November 2011) 

AFI 34-223, Private Organization (PO) Program (8 March 2007), incorporating Change 1, 

30 November 2010, certified current, 4 April 2011

AFI 36-3101, Fundraising within the Air Force (12 July 2002)
276 The Military Commander and the Law

FREE SPEECH, DEMONSTRATIONS, OPEN HOUSES 

AND HATE GROUPS

Air Force commanders have the inherent authority and responsibility to execute the 

mission, protect resources, and maintain good order and discipline. This authority and 

responsibility includes placing lawful restrictions upon certain demonstration and protest 

activities.

Commander Responsibilities

- Commanders must preserve all service member’s right of expression, consistent 

with good order, discipline and national security, to the maximum extent possible. 

To properly balance these interests, commanders must exercise prudent judgment 

and consult with their staff judge advocate (SJA).

-- Air Force members may not distribute or post any unofficial printed or written 

material within any Air Force installation without permission of the installation 

commander

-- Air Force members may not write for unofficial publications during duty hours

-- Military personnel must reject participation in organizations that advocate or 

espouse supremacist, extremist, or criminal gang doctrine (ideology) or causes; 

attempt to create illegal discrimination based on race, creed, color, sex, religion, 

or national origin; advocate the use of force or violence; or otherwise engage in 

an effort to deprive individuals of their civil rights

--- Members who actively participate in such groups or activities are subject 

to adverse administrative and disciplinary action, including separation and 

punishment under the UCMJ

--- Mere membership in these groups is not prohibited; however, membership 

must be considered in evaluating or assigning members, particularly supervisory positions

--- One tool for identifying whether a particular organization is a recognized 

criminal gang is the FBI’s National Gang Threat Assessment. Assessments are 

found at https://www.fbi.gov/stats-services/publications. This assessment is 

periodically updated, so users should verify that they are accessing the FBI’s 

most recent report. However, this publication may be supplemented, with 

Air Force Office of Special Investigations (AFOSI) input, at any level, to locally 

augment the list of recognized criminal gangs.
CHAPTER SIX Personnel Issues for the Commander—Generally 277

Controlling or Prohibiting Demonstrations and Protests

- Commanders may also take measures to control or prevent demonstrations and 

protest activities within the installation

-- Demonstrations or related activities on an Air Force installation may be prohibited if:

--- They interfere with mission accomplishment, or

--- They present a clear danger to loyalty, discipline, or morale of service 

members

-- No one may enter a military installation for any purpose prohibited by law or 

regulation, or reenter an installation after having been barred by order of the 

installation commander

-- Air Force members are prohibited from participating in demonstrations when 

they are on duty, when they are in a foreign country, when they are in uniform, 

when their activities constitute a breach of law and order, or when violence is 

likely to result. Members who violate this provision are subject to disciplinary 

action under UCMJ, Art. 92.

Political Activities by Members of the Air Force

- Air Force members may register to vote and express a personal opinion on political 

candidates and issues, but not as a representative of the Armed Forces

- For a list of prohibited and permitted political activities, see AFI 51-902, Political Activities by Members of the U.S. Air Force, paras. 3 and 4

Open House Requirements and Responsibilities

- An open house where the general public is invited onto the installation does not, 

in and of itself, cause the installation to lose its status as “closed” for the purposes of 

limiting political or ideological speech. “Closed” means not a public forum for protests 

or demonstrations.

-- Open houses are for local community relations. Commanders retain the authority 

to prevent political or ideological speech or demonstrations on the installation 

during an open house.
278 The Military Commander and the Law

-- Commanders can prevent or stop political or ideological speech because such 

speech creates a danger to loyalty, good order, and discipline

--- Commanders need not wait until loyalty, good order or discipline are actually 

negatively affected before preventing or stopping the speech

--- Speech that presents such a danger can be prevented at the outset because 

it presents such a danger

-- If a person or group attempts to engage in political or ideological expression or 

demonstrations on an installation, the commander should escort the offending 

party or parties off the installation and issue a barment letter, the violation of 

which can subject the offender to criminal penalties

-- An installation loses its status as “closed” for the purposes of preventing political 

or ideological speech or demonstrations ONLY IF the commander allows political 

or ideological speech or demonstrations to occur or by abandoning control over 

the installation or parts of it

- Installation commanders should be careful about whom they invite onto the installation and what they allow those people to do. It is important to work closely with the 

SJA to plan open houses so that potential problems can be prevented and to solve 

free speech issues should they arise.

References

DoDD 1344.10, Political Activities by Members of the Armed Forces (19 February 2008)

AFI 51-902, Political Activities by Members of the U.S. Air Force (27 August 2014)

AFI 51-903, Dissident and Protest Activities (30 July 2015)

AFI 51-904, Complaints of Wrongs under Article 138, Uniform Code of Military Justice 

(28 July 2015)
CHAPTER SIX Personnel Issues for the Commander—Generally 279

RELIGIOUS ISSUES IN THE AIR FORCE

Issues involving religion have an inherent potential to generate media, advocacy group, 

and political attention quickly. Resolution of religious issues (particularly regarding 

accommodation and whether speech or practices in a duty context are permissible) is 

always highly fact and situation dependent and seldom amenable to simple, bright line, 

“one-size-fits-all” rules. It is essential that commanders consult their staff chaplains and 

staff judge advocates (SJAs) when religious issues arise.

Constitutional Basis

- First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....”

-- Establishment Clause: Essentially requires (in appearance and reality) the government not exercise a preference for one religion over another, or religion over 

non-religion

-- Free Exercise Clause: Constitutional protection for religious speech and practices 

(does NOT absolutely protect all religious expression under all circumstances)

-- Consult your SJA for analytical standards/tests for governmental restrictions on 

religious expression based upon most current Supreme Court holdings

Religious Expression Authorities

- Religious expression in the Air Force is governed primarily by the Free Exercise Clause 

and the Religious Freedom Restoration Act (RFRA)

- RFRA provides broad protection for religious liberty and ensures the government 

shall not substantially burden a person’s exercise of religion unless the burden is: 

-- (1) In furtherance of a compelling governmental interest, and 

-- (2) Is the least restrictive means of furthering that compelling governmental 

interest

General Principles for Leaders

- Per AFI 1-1, Air Force Standards, para. 2.12, leaders at all levels must balance constitutional protections for free exercise of religion with the constitutional prohibition 

against governmental establishment of religion
280 The Military Commander and the Law

- Commanders must ensure their words and actions cannot reasonably be construed 

to be officially endorsing or disapproving of, or extending preferential treatment for 

any faith, belief, or absence of belief

-- Commanders must be sensitive to the potential for real-world military implications when religion and official business intersect. Context is critical and commanders should exercise caution before engaging in activities in the military 

setting that would leave a reasonable observer with the impression that the 

commander is endorsing, sponsoring, or inhibiting religion.

-- Not all members of the command will share the commander’s beliefs; they may 

feel alienated or marginalized when their commander espouses a particular 

religious belief or preference for one religion

-- Some may question whether they will be viewed with impartiality or with disfavor 

if they do not agree with their new commander’s religious views

Religious Expression in the Workplace

- Voluntary discussions of religion are permissible, even if conducted in uniform, to the 

same extent that they may engage in comparable private expression about subjects 

not related to religious issues, where it is clear that the discussions are personal, not 

official, and they are free from coercion or appearance of coercion

- Restrictions on such expression must be based on generally applicable, contentneutral factors, such as whether the expression would disrupt mission accomplishment or would have an adverse impact on good order and discipline. Additionally, 

restrictions on religious-related expression are appropriate if the member’s expression can reasonably be attributed to the Air Force, thus constituting an impermissible 

endorsement.

- When religious expression is directed towards other Airmen, the speaker must refrain 

from such expression when an Airman asks that it stop or otherwise demonstrates 

that it is unwelcome

- Leaders should be mindful that subordinates could perceive their religious expression 

as coercive, even if it is not intended as such. Consequently, supervisors must not use 

their authority to require or discourage religious expression among subordinates.

- There is nothing wrong with an Airman sharing his/her faith or inviting another coworker to attend his/her place of worship as long the Airman respects the views and 

requests of the co-worker
CHAPTER SIX Personnel Issues for the Commander—Generally 281

Prayer

- As a general rule, prayer constitutes protected religious expression. However, in 

official circumstances, or when superior/subordinate relationships are involved, 

superiors must be sensitive to the potential that personal expressions may appear 

official or coercive.

- Public prayer must not endorse, or appear to endorse, religion

-- It should not be part of routine official business, e.g., staff meetings

-- If a chaplain is asked to pray at an official event, the choice of prayer is in the 

discretion of the chaplain as long as the prayer does not state or imply any Air 

Force endorsement of a specific religion

- Mutual respect and common sense should serve as a guide, including consideration 

of unusual circumstances, such as a recent death, imminent danger, etc

- Leaders should avoid leading prayers at official functions. Any prayers should be led 

by a chaplain, if possible, or another Airman.

- Religious content/prayer is acceptable as an exercise of free exercise in ceremonies 

that are primarily personal to the honoree, such as retirements. If a commander is 

the presiding official for the event, the commander could ask to have the “emcee” 

announce that the religious content/prayer is at the request of the honoree.

-- All such requests should be coordinated with the commander well in advance 

of the ceremony. The commander retains responsibility for ensuring that the 

proposed religious content does not violate Air Force instructions or regulations.

- Attendance at National Prayer Breakfast activities in uniform is neither prohibited 

nor encouraged (i.e., it is left to attendee’s discretion)

Religious Displays

- Displays of religious articles are permissible in government offices where it is clear 

that the articles are personal and are not used to promote a specific religious belief 

to office members

- Supervisors may restrict all posters regardless of content, or posters of a certain size, 

in private work areas, or require that such posters be displayed facing the employee, 

and not on common walls. However, a supervisor is not permitted to specifically 
282 The Military Commander and the Law

single out religious posters (e.g., the Ten Commandments) for either negative or 

preferential treatment compared to other posters.

- Context is critical: while the Ten Commandments may be permissible in the employee’s cubicle, religious displays have the potential to send a message of endorsement 

of particular religious beliefs

Official Communications

- Installations and units are encouraged to use or assist their chaplains in using official 

communication channels to distribute and communicate Chaplain Corps religious 

events/services

- Chaplains should handle advertisement of special religious events (e.g., religionbased marriage enrichment seminars, workshops conducted by a chaplain of one 

faith solely for people of that faith) when possible

-- If this is not possible, the advertising commander must ensure the audience 

understands the announcement is being distributed on behalf of the chaplain. The commander must avoid the appearance that he or she is endorsing 

the underlying religious viewpoint. The higher the organizational level of the 

announcement, the more important it is to be sensitive to this.

- In official government correspondence, including e-mail messages, the Air Force 

determines what is appropriate for inclusion

- Supervisors may restrict the inclusion of extraneous information (including religious 

or other messages) that have no relationship to Air Force business, so long as the 

restriction prohibits religious (or anti-religious) extraneous messages in the same 

manner as it restricts all other types of extraneous language

Accommodation of Religious Practices

- The Air Force places a high value on the rights of Air Force members to observe the 

tenets of their respective religions or to observe no religion at all

- 10 U.S.C. § 774, permits wear of religious apparel in uniform unless, as determined 

pursuant to service regulation, the apparel would interfere with performance of duty 

or is not neat and conservative

- Commanders and supervisors must fairly consider requests for religious accommodation. Airmen requesting accommodation will continue to comply with directives, 
CHAPTER SIX Personnel Issues for the Commander—Generally 283

instructions and lawful orders from which they are requesting accommodation unless 

and until the request is approved.

- Religious Accommodation Resolution Factors:

-- The first question is whether the exercise of religion for which the Airman is 

requesting accommodation is grounded in a sincerely held religious belief. If 

so, the relevant exercise of religion can include any religious practice, whether 

compelled by, or central to, a system of religious belief.

-- The next question is whether the policy, practice, or duty from which the Airman 

is requesting accommodation substantially burdens the exercise of religion. A 

substantial burden is one that significantly interferes with the exercise of religion. 

If exercising a sincerely held religious belief without an accommodation would 

result in an adverse action being taken, the policy, practice, or duty likely significantly interferes with the exercise of religion.

-- If the member’s exercise of religion is substantially burdened, the request for 

religious accommodation may be denied only when the military policy, practice, 

or duty furthers a compelling governmental interest (a military requirement that 

is essential to accomplishment of the military mission), and is the least restrictive 

means of furthering that compelling governmental interest

-- In determining whether a compelling governmental interest exists and the 

restriction is narrowly tailored and uses the least restrictive means to achieve 

the compelling interest, consider the following factors, in addition to any other 

factors deemed appropriate:

--- Importance and need for the specific policy, practice, or duty in terms of 

mission accomplishment, including military readiness, unit cohesion, good 

order, discipline, health, and safety

--- Cumulative impact of multiple and/or repeated requests of a similar nature

--- Mission related circumstances surrounding the relevant time period, including operational tempo, location, and threat level

--- Previous decisions on similar requests, including decisions on similar requests 

made for other than religious reasons

-- If the governmental interest is found to be compelling, alternative ways to accomplish the interest so the request can be approved must be considered. With the 
284 The Military Commander and the Law

advice of a chaplain, alternative ways (partial approval) to satisfy the requested 

accommodation can also be considered.

-- When the policy, practice or duty from which the Airman is requesting accommodation does not substantially burden the exercise of religion, the needs of the 

requesting Airman are balanced against the needs of mission accomplishment. 

The request will only be denied when the needs of mission accomplishment 

outweigh the needs of the Airman.

-- If a religious accommodation request based on a sincerely held religious belief 

cannot be approved, alternative administrative personnel actions may be considered for the purpose of assisting the Airman. These actions can include reassignment, reclassification, or a voluntary separation.

-- Requests for religious accommodations must be assessed on a case-by-case basis, 

considering the unique facts, requiring consultation with your servicing SJA and 

chaplain

Religious Apparel

- Definition: Religious apparel is defined as apparel worn as part of the observances 

of a religious faith practiced by an Airman

- Religious Apparel During Worship Services: Does not require a religious accommodation request, and may be worn in uniform while Airmen are present at a worship 

service, rite, or other ritual distinct to a faith or denominational group

-- Commanders may, for operational or safety reasons, limit the wear of nonsubdued items of religious apparel during services conducted in the field based 

on military necessity

- Religious Apparel (Not Visible or Otherwise Apparent): Does not require a religious 

accommodation request, and may be worn in uniform, provided it does not interfere 

with the performance of the member’s military duties or the proper wearing of any 

authorized article of the uniform

-- Commanders may, for operational or safety reasons, limit the wear of religious 

apparel that is not visible or otherwise apparent

- Religious Apparel (Visible or Apparent): For religious apparel that is visible or apparent, Airmen may request a waiver of AFI 36-2903, Dress and Personal Appearance of 

Air Force Personnel, to permit wear of neat and conservative religious apparel
CHAPTER SIX Personnel Issues for the Commander—Generally 285

- Religious Apparel on Uniform: Items may not be temporarily or permanently affixed 

to any authorized uniform article. With the exception of chaplain function badges, 

religious apparel visible or otherwise apparent will not be worn during parades, 

ceremonial details, ceremonial functions, or in official photos.

- Considerations: Commanders should take the following into account when considering requests for uniform and dress and appearance-related religious accommodation: 

-- Team identity

-- Unit cohesion

-- Subordination of self to military service

-- Public access to the location

-- Operations

-- Safety

- Minimally Conspicuous Headgear: Installation Commanders may approve requests 

for wear of religious head coverings indoors that are minimally conspicuous and may 

approve the wear of religious head coverings outdoors if concealed under military 

headgear

-- “Minimally conspicuous” means that the religious headgear is neat and conservative, is plain and dark blue or black, and would not, in the commander’s judgment, 

draw the focus of an observers’ attention from the uniform as a whole

- Non-standard Grooming and Personal Appearance: Some religious beliefs require 

members to maintain grooming standards, religious tattoos/body art, and/or 

personal appearance modifications that conflict with Air Force dress and personal 

appearance standards

-- Factors to consider include whether approving the religious accommodation 

would impair the safe and effective operation of weapons, military equipment, or 

machinery; pose a health or safety hazard; interfere with the wear or proper function of special or protective clothing or equipment; otherwise impair discipline, 

morale, unit cohesion, or accomplishment of the unit mission

-- During tours of less than 30 days, Air Force Reserve (AFR) and Air National Guard 

(ANG) chaplains not on extended active duty may request a beard waiver for 

religious observance when consistent with their faith
286 The Military Commander and the Law

Social Media

- Social media includes, but is not limited to, weblogs, message boards, video sharing, 

and other media sharing web sites. AFI 35-113, Internal Information, provides social 

media guidance.

- Generally, the Air Force views personal web sites and weblogs positively, and it 

respects the right of Airmen to use them as a medium of self-expression, including 

religious expression, even if their status as Air Force members is apparent

- Airmen must abide by certain restrictions to avoid harming good order and discipline. 

Expression that palpably prejudices good order and discipline or discredits the Air 

Force is subject to the UCMJ.

- Whether expression of the poster’s identity can/should be restricted involves such 

considerations as, for example, whether the member uses express or inferential 

language suggesting Air Force endorsement of the expression or religious belief, 

or implicates DoD 5500.07-R, Joint Ethics Regulation (JER) by making indications of 

federal support of non-federal entities

- While service members may generally use their grade and service even when acting 

in their personal capacity, they should not do so in situations where the context may 

imply official sanction or endorsement of their personal religious opinions

- Stronger, more prominent disclaimer than the minimums suggested/required by AFIs 

can minimize potential problems for the poster and the Air Force, as well as better 

inform readers of a personal social media site or post

Advocacy from Interest Groups Might Sound Authoritative, but it’s Still

Just Advocacy

- Interest group advocates (including lawyers) seeking a particular resolution of a 

religious issue of which they have become aware might call you directly, advising 

you that the law “requires” you to adopt their position. If this happens, here are some 

suggestions based on experience: 

-- Avoid sounding sympathetic or agreeable to their pronouncements

-- Threats of adverse publicity or litigation are to be expected; just tell the caller 

that you’ll let public affairs (PA) and/or your SJA know
CHAPTER SIX Personnel Issues for the Commander—Generally 287

-- Do not take unilateral action (i.e., action without first consulting JA and/or PA) to 

do what the caller is requesting or demanding!

-- Thank the caller for bringing the matter to your attention. Do not make any 

promises or statements indicating you or anyone else will investigate the matter, 

or take some action within a specific time frame. Following the call, notify your 

SJA, chaplain, and or PA.

-- If you believe a follow-up response is appropriate, it is preferable to disengage 

yourself and notify your SJA, chaplain, and PA 

References

U.S. Const. Amend. 1

10 U.S.C. § 774 

The Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb et seq.

DoDI 1300.17, Accommodation of Religious Practices within the Military Services (10 February 

2009), incorporating Change 1, 22 January 2014

DoDI 5500.7-R, Joint Ethics Regulation (JER) (30 Aug 1993), incorporating through Change 7, 

17 November 2011

AFI 1-1, Air Force Standards (7 August 2012) incorporating Change 1, 12 November 2014

AFI 35-113, Internal Information (11 March 2010)

AFI 36-2903, Dress and Personal Appearance of Air Force Personnel (18 July 2011), incorporating 

through Change 4, 28 May 2015, including AFI36-2903_AFGM2016-03, 30 March 2016
288 The Military Commander and the Law

SOCIAL MEDIA

Social media is a tool that allows the Air Force to conduct outreach with the general 

public, as well as for Airmen—military and civilian—to interact personally with friends, 

family, the media, elected officials, and strangers. The rules for social media use within 

the DoD are frequently updated. Consult your staff judge advocate (SJA) for the latest 

standard. Social media tools have become a staple of modern life and most Airmen have 

one or more personal social media accounts. The rules for use of social media can be 

divided into two categories: official use (use by the Air Force to conduct official Air Force 

duties) and personal use.

Official Use

- Official use of social media must comply with all DoD and Air Force guidance

- Any official use of social media must be approved by Air Force Public Affairs (PA) 

and follow policies established by SAF/PA (http://www.defense.gov/socialmedia/

education-and-training.aspx)

-- Air Force official social media sites are alternative forms of distribution of government information. As such, all information on a third party social media site must 

also be posted on an official .mil/.gov web site.

-- Air Force official social media sites may not contain any non-public information 

or link to any site that contains non-public information

-- Air Force social media sites may not “follow/fan/like” any non-Federal government 

sites unless there is a mission critical reason to do so (such as State Air Guard, 

NATO)

-- All Air Force official social media sites must link back to an official .mil page

-- All Air Force official social media sites must contain disclaimers, comment policies, and privacy policies. Contact your local PA office for sample disclaimers and 

comment policies.

-- Comments received on Air Force official social media sites must be moderated 

for topic and language (as outlined in the comment policies). Comments may 

not be deleted for political opinions or because they disagree with the Air Force 

position on a subject. An official Air Force organizational e-mail address must 

also be provided to allow users to comment directly to the Air Force.
CHAPTER SIX Personnel Issues for the Commander—Generally 289

-- All Air Force official social media posts and comments received must be maintained in accordance with Air Force records retention guidelines 

Personal Use

- Same rules that bind Airmen when communicating in person, by phone, e-mail, or 

mail also apply when communicating via social media. Specifically, all UCMJ articles 

and Air Force regulations that pertain to communications apply to social media. Some 

common social media issues include:

-- Fraternization/Unprofessional Relationships: Airmen are obligated to maintain 

appropriate communication and conduct with officer and enlisted personnel, 

peers, superiors, and subordinates (to include civilian superiors and subordinates)

-- Offensive Conduct: Airmen must avoid offensive and/or inappropriate behavior 

that could bring discredit upon the Air Force, themselves in their capacity as 

an Air Force member, or that would otherwise be harmful to good order and 

discipline, respect for authority, unit cohesion, morale, mission accomplishment, 

or the trust and confidence that the public has placed in the Air Force

-- Political Communications: Airmen, in their personal capacity, may engage in 

political discussions through social media, but may not engage in political discussions that include non-public information or the intricacies of the Air Force or 

the DoD

--- Airmen must be careful that personal opinions and activities are not directly, 

or by implication, represented as those of the Air Force

--- If, when expressing a personal opinion, personnel are identified by a social 

media site as DoD employees (for example, the “work and education” section 

on a Facebook profile lists “United States Air Force”), the posting must clearly 

and prominently state that the views expressed are those of the individual 

only and not of the DoD or the Air force

--- Active duty military members and certain restricted civilian employees are 

prohibited from participating in partisan political activity. Therefore, while 

these employees may “follow,” “friend,” or “like” a political party or candidate 

running for partisan office, they may not post links to, “share” or “re-tweet” 

comments or tweets from the Facebook page or Twitter account of a political 

party or candidate running for partisan office. Such activity is deemed to 

constitute participation in political activities.
290 The Military Commander and the Law

- Airmen may use their official title in social media profiles when the title is listed as 

part of a profile’s biographical information section. That section must include at least 

three other biographical items (such as education, hobbies, or social organizations) 

in order to meet this requirement. Otherwise, the use of official title is barred in 

personal social media use.

- In a personal capacity, Airmen may not post Air Force non-public record information 

obtained from official duties on social media web sites

- Airmen may use government devices to access social media sites under the limited 

personal use exception when it does not interfere with their official duties; however 

that use must be approved by their supervisor and cannot otherwise interfere with 

their official duties

- For further guidance on Air Force social media, refer to: http://www.af.mil/Portals/1/

documents/SocialMediaGuide2013.pdf

References

The National Defense Authorization Act for Fiscal Year 2013, 41 U.S.C. 4712(e)

5 U.S.C. § 7323

Pickering v. Bd. of Educ., 391 U.S. 563 (1968) 

5 C.F.R 734.208, Participation in Fundraising

5 C.F.R. 2635.702-705, Misuses of Position

5 C.F.R. 2635.807, Teaching, Speaking, and Writing

5 C.F.R. 2635.808, Fundraising Activities

OMB M-10-22, Guidance for Online Use of Web Measurement and Customization Technologies

(25 June 2010)

OMB M-10-23, Guidance for Agency Use of Third-Party Websites and Applications (25 June 2010)

DoDD 1344.10, Political Activities of the Armed Forces on Active Duty (19 February 2008)

DoDI 8550.1, DoD Internet Services and Internet-Based Capabilities (11 September 2012)

Social Media and the Hatch Act, Office of Special Counsel Memorandum (December 2015)

AFI 1-1, Air Force Standards (7 August 2012), incorporating Change 1, 12 November 2014
CHAPTER SIX Personnel Issues for the Commander—Generally 291

FREEDOM OF INFORMATION ACT (FOIA)

The Freedom of Information Act (FOIA) is a disclosure statute that permits access to 

information maintained by government agencies. The basic goals of the FOIA are to 

ensure an informed citizenry, to serve as a check against corruption, and to help hold 

the government accountable. The Act applies to the DoD, Department of the Air Force, 

and other federal executive agencies. Enacted in 1966, FOIA generally provides a right 

of access to federal executive agency information, except records (or portions) that are 

protected from disclosure by one of the FOIA exemptions provided in the statute.

FOIA Exemptions

- There are seven exemptions under the FOIA which provide a basis for withholding 

information:

-- Classified information (e.g., confidential, secret, top secret). “For Official Use Only” 

is not a security classification.

-- Matters relating solely to the internal personnel rules and practices of the agency

-- Information exempted by another statute (e.g., drug rehabilitation information, 

or information protected by the Privacy Act)

-- Trade secrets or commercial or financial information submitted on a privileged 

or confidential basis. (e.g., bid contract proposals)

-- Interior intra-agency documents normally privileged in the civil court context 

(e.g., attorney work-product and pre-decisional policy discussions)

-- Law enforcement information (e.g., information that would disclose the identity 

of confidential informants)

-- Information in personnel, medical, and similar files which, if disclosed to the 

requester, would result in a clearly unwarranted invasion of personal privacy

--- Some examples of personal information which are releasable because there 

is no unwarranted invasion of personal privacy are: name, rank, date of rank, 

gross pay, present and past duty assignments, future assignments which 

have been finalized, office/organizational address, and duty phone number. 

However, the names and addresses (postal and/or e-mail) of DoD military and 

civilian personnel in sensitive units, routinely deployable units, or assigned 

in foreign territories are normally not releasable.
292 The Military Commander and the Law

--- Information not normally releasable as an unwarranted invasion of personal 

privacy includes home addresses, home phone numbers, and social security 

numbers

FOIA Requests

- When a FOIA request is received immediately submit the request to the base FOIA 

office for processing. By law, the agency must respond to the requester within 20 

working days of receiving a perfected FOIA request.

- The FOIA request can be made by “any person,” which has been broadly defined to 

include foreign citizens and governments, corporations, and state governments. To 

comply with the rules, the request must:

-- Be in writing (includes requests sent by facsimile, or electronically)

-- Explicitly or implicitly invoke the FOIA

-- Reasonably describe the desired record

-- Give assurances to pay any required fees or explain why a waiver is appropriate

FOIA Processing

- The office of primary responsibility (OPR) (not the FOIA office or the servicing staff 

judge advocate (SJA)) is responsible for conducting an initial review of the responsive records and making proposed redactions based on the exemptions in the FOIA 

discussed above

- After initial review, forward to the SJA for comment

-- If the SJA recommends approval, local release authority can approve request 

and release information

-- If the SJA recommends denial, then a legal review is attached and the case is 

forwarded immediately to the initial denial authority (IDA), typically the MAJCOM 

commander or designee

- The IDA takes appropriate action. If records are denied, wholly or in part, the IDA 

tells requester the reason for the denial and the appeal procedure to follow. The IDA 

must issue its decision within 20 working days of receipt of the request by the base 

FOIA office.
CHAPTER SIX Personnel Issues for the Commander—Generally 293

- Appeals are taken to SAF/GCA for resolution after being reassessed by the MAJCOM 

FOIA office

- Requester may file suit in federal district court to compel the release of the requested 

information if the appeal results in denial

- Agencies are not required to create, compile, or obtain records not already in their 

possession to comply with a FOIA request. However, they are required to make reasonable efforts to extract data from existing records to comply with a FOIA request, 

so long as such an extraction is within the agency's normal business practices.

- Honoring form or format requests: In making any record available to a person, the 

agency shall provide the record in any form or format requested by the person if 

the record is readily reproducible by the agency in that form or format. Agencies are 

required to make reasonable efforts to maintain their records in forms or formats 

that are reproducible and have an affirmative duty to search for records in electronic 

form or format (e.g., in e-mails).

- Multi-track processing is authorized if the number of pending requests or complexity 

of a request precludes response within the statutory 20-working day limit. All tracks 

operate on a first-in, first-out system. If the base FOIA office determines a request is 

not eligible for its fastest track, it must give the requester the opportunity to limit 

the scope of the request.

-- Simple Requests: Ones that clearly identify the requested records, have few 

responsive records, deal with only one installation and, generally, one OPR, and 

do not involve Privacy Act, classified, or deliberative process materials

-- Complex Requests: Ones that include massive responsive records, cause significant impact on units, require coordination from multiple offices, or include 

material that is classified or privileged, or originated from a non-government 

source

-- Expedited Track: Agencies are required to promulgate regulations providing 

for expedited processing of requests for records if the requester demonstrates 

a “compelling need.” Agencies must notify expedited processing requesters 

whether the request has been granted within 10 calendar days. 

--- A “compelling need” means failure to receive the records in an expedited 

manner reasonably poses an imminent threat to the life or physical safety 

of an individual 
294 The Military Commander and the Law

--- Denial of a request for expedited processing, whether initially or on appeal, 

is subject to judicial review

--- Agencies may process “urgently needed” material in the expedited track after 

“compelling need” requests have been fulfilled

Electronic Reading Rooms

- Installation commanders must establish electronic reading rooms on the installation 

web site and make frequently requested records (records typically requested three 

or more times per quarter) available through links in the reading room site

- Certain records, such as policy statements, created on or after 1 November 1996, must 

be made available electronically in a public reading room within 1 year of creation

References

Freedom of Information Act, 5 U.S.C. § 552

Privacy Act, 5 U.S.C. § 552a

DoDD 5400.07, DoD Freedom of Information Act (FOIA) Program (2 January 2008), certified 

current through 2 January 2015

DoD 5400.7-R_AFMAN 33-302, Freedom of Information Act Program (21 October 2010) 

incorporating through Change 2 (22 January 2015)
CHAPTER SIX Personnel Issues for the Commander—Generally 295

PRIVACY ACT

The Privacy Act (PA) is designed to accomplish several purposes. Primarily, it limits the 

government’s ability to collect information about an individual to those instances authorized by law or executive order and necessary for government business. The PA also 

authorizes individuals to access records maintained on them by the government and 

to correct factual errors in those records. The PA only governs activities of the federal 

executive branch of government.

Basic Structure of PA Systems

- Every system of records must be listed in the Federal Register before information 

may be collected

- A system of records contains information on individuals that is retrieved by the individual’s name or personal identifier, such as a social security number. All systems of 

records must have a PA warning on them.

-- System of records developers and managers must perform privacy impact assessments before creating a system of records or modifying information contained 

in a system of records

-- Do not place PA information in areas where individuals without an official need 

to know will have access (including common drives on computer systems)

-- Personal notes maintained by a supervisor as memory aids at her own initiative 

are not considered a system of records, even if maintained by name or personal 

identifier, unless the records are required by command policy or regulation, or 

the supervisor shows the records to other agency personnel

- Contractors who maintain systems of records for an executive agency are bound by 

the PA

- Before being required to provide information for a system of records, an individual 

must be given the opportunity to read the privacy act statement (PAS) for the system 

of records

-- PAS appears in the Federal Register listing for the system of records and can be 

posted as a sign or printed and handed to the individual.

-- PAS may also be verbally told to the individual
296 The Military Commander and the Law

-- PAS includes the authority for collecting the information, whether disclosure is 

voluntary or mandatory, routine uses of the information, and the consequences 

of not providing the information, if any

Disclosure Procedures

- To the Individual Subject of the Record:

-- Subjects of PA records and their designated representatives may request copies 

of their records

--- Individuals do not need to state a reason for requesting access

--- System managers must verify the requester’s identity

-- Requesters must describe the records they are seeking—“all records on me” is 

not sufficient—system managers may ask for clarification

-- Requesters MAY NOT use government resources to create or send their request

-- If records will be released, the system manager must notify the sender within 

10 work days and provide access to the record within 30 work days of receiving 

the request. The system manager may take up to 20 work days to determine 

whether release is authorized if he notifies the requester of the reason for the 

delay within 10 work days.

-- The requester may have to pay fees if the record exceeds 100 copied pages

- To Third Parties:

-- The PA requires written consent from the subject before releasing information 

unless an exception applies

-- Exceptions allowing disclosure to third parties without subject consent

--- To DoD employees with an official need to know

--- Disclosure is required by the Freedom of Information Act (FOIA). Consult your 

servicing staff judge advocate (SJA) and Freedom of Information Act (FOIA) 

office before providing information subject to the PA 
CHAPTER SIX Personnel Issues for the Commander—Generally 297

--- To agencies outside DoD, if consistent with the routine uses listed in the 

Federal Register’s system of records notice

--- To the Bureau of the Census

--- Compilations of statistical data where individual data is not identifiable

--- To the National Archives and Records Administration for permanent storage

--- To a federal, state, or local agency for civil or criminal law enforcement action

--- To an individual or agency requiring the information for compelling health 

or safety reasons

--- To Congress

--- To the Comptroller General

--- To a court of competent jurisdiction in response to a court order from a judge

--- To a consumer reporting agency, if allowed by system of records notice

Denials

- For a record to be denied, it must be covered by an exemption

- Only specific documents in the record covered by the exemption may be denied

- Segregate non-exempt documents and release them

- Third-party information contained in the record may be redacted depending on 

the nature of the information and its relevance to the record; always contact your 

servicing SJA for guidance on releasing third party information in a PA record

- System managers send recommendations for denials to their servicing SJA and PA 

office for review within 5 days of receiving the request

- MAJCOM commanders take action on recommended denials
298 The Military Commander and the Law

- Commonly encountered limits on release to the subject of record are as follows:

-- Do not release information collected in anticipation of civil litigation or created 

as attorney work product

-- Have medical records reviewed by a doctor before release; if the doctor determines disclosing the records could cause mental harm or hardship to the 

requester, ask the requester for the name of a physician to whom the records 

can be sent. Include a letter to that physician with the records explaining the 

reviewing doctor’s basis for not disclosing the records directly to the requester. 

Consult AFI 41-210, Tricare Operations and Patient Administration Functions, and 

DoD 6025.18-R, DoD Health Information Privacy Regulation, for additional guidance regarding medical records.

Special Handling Requirements

- Medical Records of Minors:

-- If overseas and the minor is between ages 15 and 17, do not release a minor’s 

medical records to the minor’s parents or legal guardians without court order 

or consent from the minor, if regulation or statute provides for confidentiality of 

the records and the minor has asked for confidentiality

-- If within the territorial United States, state laws may limit parental access to 

medical records of their children. Consult with your servicing SJA for compliance 

requirements.

- When transmitting PA material using e-mail, the sender must include a warning that 

the e-mail contains PA material and is for official use only (FOUO) at the beginning of 

the message and include “FOUO” at the beginning of the subject line

- Do not place PA material on Internet sites accessible by individuals without an official 

need to know the information

Violations

- Subjects may file suit in civil court to gain access to PA materials and correct errors 

in those materials. The court may award attorney’s fees, court costs, and damages.

- Individuals may be criminally prosecuted for willful, unauthorized disclosures of PA 

information or maintenance of an unauthorized system of records both by civilian 

authorities and under the UCMJ
CHAPTER SIX Personnel Issues for the Commander—Generally 299

References

Privacy Act of 1974, 5 U.S.C. § 552a

DoD 6025.18-R, DoD Health Information Privacy Regulation (24 January 2003)

AFI 33-332, Air Force Privacy and Civil Liberties Program (12 January 2015)

AFI 41-210, Tricare Operations and Patient Administration Functions (6 June 2012)
300 The Military Commander and the Law

RETURN OF MILITARY PERSONNEL, EMPLOYEES, AND 

FAMILY MEMBERS FROM OVERSEAS FOR TRIAL

Congress requires the Armed Services to have uniform regulations for delivering military 

members accused of a crime to civil authorities. DoD regulations requires cooperation 

with federal and state officials who request assistance to enforce court orders pertaining 

to the witness testimony or in court appearance of a military member, employee, or 

family member.

Adherence to Court Orders to Testify 

- Air Force members, civilian employees, and family members are expected to comply with orders issued by a federal or state court of competent jurisdiction unless 

non-compliance is legally justified. Members and employees who persist in noncompliance are subject to adverse administrative action, including separation for 

cause.

- Air Force officials will ensure that members, employees, and family members do not 

use assignments or officially sponsored residences outside the United States to avoid 

complying with valid court orders.

Procedure: Witness Request for Military Members Who Are Overseas 

- When federal, state, or local authorities request delivery of an Air Force member who 

is stationed outside the United States and who is convicted of, or charged with, a 

felony or who is sought for the unlawful taking of a child, he or she will normally be 

expeditiously returned to the United States for delivery to the requesting authorities. 

The office of primary responsibility (OPR) for this process is AFLOA/JAJM.

-- Requests for delivery of military members to state or local authorities must be 

accompanied by a warrant or a representation by a federal marshal or agent that 

such a warrant has been issued

-- Before taking action to return a member under these circumstances, the member 

must be afforded an opportunity to show legitimate cause for non-compliance

-- The Judge Advocate General (TJAG) may direct return for less serious offenses 

when deemed appropriate under the facts and circumstances of a particular case

-- Return is not required if the controversy can be resolved without returning the 

member to the United States
CHAPTER SIX Personnel Issues for the Commander—Generally 301

-- If approved, the member receives permanent change of station (PCS) orders from 

the Air Force Personnel Center (AFPC) with an assignment to an installation as 

close to the requesting jurisdiction as possible

-- Requesting authorities will be notified of member’s new assignment, port of 

entry, and estimated time of arrival

- A request for return of a member to the United States by civilian authorities may be 

denied if any of the following exist: 

-- Member’s return would have an adverse impact on operational readiness or 

mission requirements

-- An international agreement precludes the member’s return

-- Member is subject to foreign judicial or court-martial proceedings or a military 

department investigation

-- Member shows satisfactory evidence of legal efforts to resist the request or other 

legitimate causes for non-compliance

-- Other unusual facts or circumstances warrant a denial

- Commanders send recommendations for denial through their legal office to AFLOA/ 

JAJM, SAF/GC, and SAF/MI. The Under Secretary of Defense for Personnel and Readiness (USD/P&R) is the decision authority.

- Requests must be processed expeditiously. A delay of up to 90 days may be granted 

by TJAG if any of the following apply:

-- Efforts are in progress to resolve the controversy without the member’s return

-- Additional time is required to permit the member to provide satisfactory evidence 

of legal efforts to resist the request or show legitimate cause for non-compliance

-- Additional time is needed to determine the mission impact of the member’s loss 

or impact on any international agreement, foreign judicial proceeding or ongoing 

military department investigation or court-martial

-- Other unusual facts or circumstances warrant delay
302 The Military Commander and the Law

Procedure: Civilian Employees or Family Members Who Are Overseas 

- Upon receipt of a request for assistance from federal, state, or local authorities for 

custody involving non-compliance with a court order—such as arrest warrant, indictment, information, or contempt violation involving the unlawful removing of a child. 

After exhausting all reasonable efforts to resolve the matter without the employee or 

family member returning to the United States, the commander shall strongly encourage the employee or family member to comply.

- If an employee does not comply, the commander shall consider imposing disciplinary 

action including removal against the employee. If a family member does not comply, 

the commander shall consider withdrawing command sponsorship of the family 

member.

References

DoDI 5525.09, Compliance of DoD Members, Employees, and Family Members Outside the United 

States with Court Orders (10 February 2006)

DoDI 5525.11, Criminal Jurisdiction Over Civilians Employed By or Accompanying the Armed 

Forces Outside the United States, Certain Service Members, and Former Service Members

(3 March 2005)

AFI 51-1001, Delivery of Personnel to United States Civilian Authorities for Trial (28 August 2014)
CHAPTER SIX Personnel Issues for the Commander—Generally 303

CITIZENSHIP FOR MILITARY MEMBERS

Members and certain veterans of the U.S. military may be eligible for naturalization 

through their military service under Section 328 or 329 of the Immigration and Nationality 

Act (INA). The INA also allows for posthumous naturalization for service members who 

served during a designated period of hostilities under section 329A.

Naturalization through Peacetime Service

- A member who has served honorably in the U.S. armed forces at any time may be 

eligible to apply for naturalization under Section 328 of the INA

- In general, an applicant for naturalization under Section 328 of the INA must:

-- Be age 18 or older

-- Have served honorably in the U.S. armed forces for at least 1 year and, if separated 

from the U.S. armed forces, have been separated honorably

-- Be a permanent resident at the time of examination on the naturalization 

application

-- Be able to read, write, and speak basic English

-- Demonstrate knowledge of U.S. history and government (civics)

-- Have been a person of good moral character during all relevant periods under 

the law

-- Have an attachment to the principles of the U.S. Constitution and be well disposed to the good order and happiness of the United States during all relevant 

periods under the law

-- Have continuously resided in the United States for at least 5 years and have been 

physically present in the United States for at least 30 months out of the 5 years 

immediately preceding the filing date of the application, UNLESS the applicant 

has filed an application while still in the service or within 6 months of separation. In the latter case, the applicant is not required to meet these residence and 

physical presence requirements.
304 The Military Commander and the Law

Naturalization through Wartime Service

- Generally, members of the U.S. armed forces who serve honorably for any period of 

time (even 1 day) during specifically designated periods of hostilities are eligible for 

naturalization under Section 329 of the INA

- In general, an applicant for naturalization under INA Section 329 must:

-- Have served honorably in active duty status, or as a member of the Selected 

Reserve of the Ready Reserve, for any amount of time during a designated period 

of hostilities and, if separated from the U.S. armed forces, have been separated 

honorably

-- Have been lawfully admitted as a permanent resident at any time after enlistment 

or induction, OR have been physically present in the United States or certain territories at the time of enlistment or induction (regardless of whether the applicant 

was admitted as a permanent resident)

-- Be able to read, write, and speak basic English

-- Demonstrate knowledge of U.S. history and government (civics)

-- Have been a person of good moral character during all relevant periods under 

the law

-- Have an attachment to the principles of the U.S. Constitution and be well disposed to the good order and happiness of the United States during all relevant 

periods under the law

- There is no minimum age requirement for an applicant under this section. The designated periods of hostilities are:

-- April 6, 1917 to November 11, 1918

-- September 1, 1939 to December 31, 1946

-- June 25, 1950 to July 1, 1955

-- February 28, 1961 to October 15, 1978

-- August 2, 1990 to April 11, 1991

-- September 11, 2001 until the present
CHAPTER SIX Personnel Issues for the Commander—Generally 305

- Current designated period of hostilities starting on September 11, 2001, will terminate when the President issues an Executive Order terminating the period

Posthumous Citizenship for Military Members

- Members who served honorably in the U.S. armed forces and who died as a result 

of injury or disease incurred while serving in an active duty status during specified 

periods of military hostilities, as listed above, may be eligible for posthumous citizenship under section 329A of the INA

- Form N-644, Application for Posthumous Citizenship, must be filed on behalf of the 

deceased service member within two years of his or her death. If approved, a Certificate of Citizenship will be issued in the name of the deceased veteran establishing 

posthumously that he or she was a U.S. citizen on the date of his or her death.

Application Processing

- Service members must apply for naturalization through the U.S. Citizenship and 

Immigration Services (USCIS). Service members are not charged filing or biometrics 

fees associated with the naturalization process.

- Every military installation should have a designated point of contact to assist members with Form N-400, Naturalization Application and Form N-426, Request for Certification of Military or Naval Services

- Once the packet is complete, it should be sent to the specialized military naturalization unit at the USCIS Nebraska Service Center for expedited processing

References

Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq.

8 U.S.C. §§ 1439(a), 1440 

N-400, Naturalization Application

N-426, Request for Certification of Military or Naval Services
306 The Military Commander and the Law

THE AIR FORCE REVIEW BOARDS AGENCY

The Air Force Review Boards Agency (AFRBA) is a Field Operating Agency that acts for the 

Secretary of the Air Force (SecAF) to make recommendations or decisions on individual 

personnel cases and applications reserved for Secretarial action. The AFRBA is functionally aligned as a directorate (SAF/MRB) under the Assistant Secretary of the Air Force for 

Manpower and Reserve Affairs (SAF/MR). The Director of the Review Boards Agency is 

a member of the Senior Executive Service, vested with substantial delegated authority 

from SecAF and SAF/MR.

The AFRBA’s mission is to ensure equity, fairness, justice, and due process for the affected 

individuals and the United States Air Force in the most sensitive personnel actions, including officer discharges, approval or disapproval of restricted retirements, grants or denials 

of clemency and parole, officer and enlisted grade determinations, final agency action 

on Equal Opportunity (EO) complaints, appeals of security clearance revocations, and 

much more. The AFRBA is the home of more than nine statutory and regulatory boards, 

described below, including the SAF Personnel Council and the Air Force Board for Correction of Military Records.

The Air Force Board for Correction of Military Records (AFBCMR)

- Provides the highest level administrative review of military personnel issues within 

the Department of the Air Force; unless procured by fraud, its corrections are final 

and conclusive on all officers of the United States

- Applicants must exhaust all other administrative remedies before applying to the 

AFBCMR

- Applicants have the burden of proof to show that their records contain error or 

injustice

- By law, the AFBCMR voting members are civilians in the executive part of the Department of the Air Force

The Secretary of the Air Force Personnel Council (SAFPC)

- Acts for, recommends to, and announces decisions on behalf of SecAF for a variety of 

total force military personnel issues reserved for Secretarial action. Delegates certain 

authorities (such as unrestricted, voluntary separations and retirements) to special 

assistants at the AFPC and the ARPC.
CHAPTER SIX Personnel Issues for the Commander—Generally 307

- Composed of active duty, United States Air Force Reserve (AFR), and Air National 

Guard (ANG) commissioned officers, non-commissioned officers, and Department 

of the Air Force civilians

- SAFPC is Comprised of Seven Component Boards:

-- Air Force Personnel Board (AFPB)

--- Charged by Secretarial delegation through SAF/MR with reviewing certain 

military personnel matters requiring Secretarial action. An extensive list of 

the types of cases the AFPB considers is included in AFI 36-2023, The Secretary 

of the Air Force Personnel Council and the Air Force Personnel Board. Procedures 

for processing cases to the AFPB are contained in the respective AFI governing the underlying action.

--- Common matters reviewed by the AFPB include:

---- Resignations, retirements, separations, transfers and releases 

---- AFPB is the final recommending entity for: 

----- Cases regarding involuntary officer discharges (including resignations and retirements in lieu of discharge or court-martial)

----- Involuntary enlisted discharges/denials of reenlistments for lengthy 

service (16 or 18 years of service) and retirement eligible Airman 

(including lengthy service probation (LSP))

----- Most conscientious objector applications

----- Certain restricted retirements (such as retirements in lieu of demotion), certain restrictions on voluntary officer separation/retention 

----- Disability separation/retirement appeals and dual actions

----- Collateral consequences of disenrollment from the Air Force 

Academy

---- Entitlements, benefits, and pay. Establishes the highest grade an individual satisfactorily held for retirement or separation.
308 The Military Commander and the Law

-- Air Force Discharge Review Board (AFDRB)

--- Statutory board that examines an applicant’s administrative discharge and 

may change the characterization of service and/or reason for discharge based 

on standards of equity or propriety

--- Applications submitted on DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States

--- Permits applicants to appear personally or via video teleconference

--- Applicants may appeal to the AFBCMR if they do not receive the desired 

outcome

-- Air Force Decorations Board

--- Acts on behalf of the Secretary in reviewing recommendations for all high 

level decorations and awards

--- Maintains the integrity and prestige of the Air Force’s highest awards, ensuring nominations meet standards established by law and policy for past, 

present, and future conflicts. Individual awards include the Airman’s Medal 

through the Medal of Honor. Unit awards include the Air Force Organizational 

Excellence Award through the Presidential Unit Citation, and Air Force Civilian 

Honorary Awards.

--- Approves, disapproves, downgrades, upgrades, or recommends upgrade 

of decorations, unit awards, or other awards/decorations requiring SecAF 

approval

--- Determines entitlement, at time of approval, to 10 percent increase in retirement pay (applies to enlisted personnel only) for award of the Silver Star, 

Distinguished Flying Cross (noncombat), and Airman’s Medal awarded for 

extraordinary heroism, in accordance with 10 U.S.C. § 8991

--- Drafts statutory time waivers for Medal of Honor nominations considered 

under 10 U.S.C. § 1130 to be included in the nomination package that the 

SecAF forwards to the Secretary of Defense (SecDEF)
CHAPTER SIX Personnel Issues for the Commander—Generally 309

-- Air Force Clemency and Parole Board

--- Assists the SecAF in executing clemency, parole, mandatory supervised 

release, and return to duty authorities established by law

-- DoD Civilian/Military Service Review Board

--- Assists SecDEF in determining if civilian service in support of the U.S. Armed 

Forces during a period of armed conflict is equivalent to active military service for Veteran Affairs (VA) benefits

-- SAF Remissions Board

--- Acts on behalf of SecAF in reviewing remission applications and providing 

final decisions or recommendations to the Director, AFRBA

--- Permits applicants to request remission of debts to the United States Air Force 

which were incurred while serving on active duty. Applications are submitted 

to the servicing Financial Services Office.

--- Prior to applying, the debt must be established and any administrative procedures and appeals regarding the existence, validity or amount of the debt 

must have been completed

--- Applicant bears the burden to prove remission of the debt is in the best 

interest of the United States. The application must demonstrate the collection 

of the debt is unjust, inequitable, or would create undue hardship.

--- Applicants may appeal decisions which do not grant the full relief requested. 

When the decision was issued by the SAF Remissions Board, the appellate 

authority is the Director, AFRBA. When the decision was issued by the Director, AFRBA, the Principal Deputy Assistant Secretary for Manpower and 

Reserve Affairs (SAF/MR (PDAS)) is the appellate authority.

-- Air Force Disability Review Board

--- Reviews the case of a member or former member of the uniformed services, 

upon request, retired or released from active duty without pay for physical 

disability, the findings and decisions of the retiring board, board of medical 

survey, or disposition board in the member’s case
310 The Military Commander and the Law

The Air Force Civilian Appellate Review Office (AFCARO)

- Processes and adjudicates discrimination complaints and administrative grievances 

by civilian employees and military applicants, filed against the Air Force

- AFCARO analyzes grievances and complaints, recommends final Air Force decisions 

to the Director, AFRBA, and is the Air Force liaison to the Equal Employment Opportunity Commission (EEOC) in all matters involving civilian discrimination complaints

The Personnel Security Appeals Board (PSAB)

- Adjudicates appeals of security eligibility/clearance withdrawals by the Air Force 

Central Adjudication Facility (AFCAF)

- Determines whether to reinstate an appellant’s eligibility/clearance, or renders a final 

decision to deny the appeal

The DoD Physical Disability Board of Review (PDBR)

- By Congressional mandate, reviews any applications submitted by personnel that 

received a disability rating of 20% or less from all services between September 11, 

2001 and December 31, 2009

- As the DoD Lead Component, the Air Force, through SAF/MRB, oversees operation 

of the PDBR

- Also utilized to offer additional disability reviews to other select groups as identified 

by Congress
CHAPTER SIX Personnel Issues for the Commander—Generally 311

References

10 U.S.C. §§ 874, 951-954

10 U.S.C. § 8991

10 U.S.C. § 1130

10 U.S.C. §§ 1552-1554

32 C.F.R. §§ 70.1–70.9

DoDD 1000.20, Active Duty Service Determinations for Civilian or Contractual Groups 

(11 September 1989), certified current 21 November 2003

SAF/MR Memo, Re-delegation of Authority for Individual Personnel Actions, 12 April 2010 

(supersedes Secretary of the Air Force Order No. 240.8 and subsequent memoranda) OPR: 

SAF/MRB Legal Department

SAF/MR Memo, Re-delegation of Authority to Act on Certain Applications and Complaints, 9 

October 2013 (supersedes Secretary of the Air Force Order No. 240.8 and subsequent 

memoranda) OPR: SAF/MRB Legal Department 

AFI 31-105, Air Force Corrections System (15 June 2015) 

AFI 36-2023, The Secretary of the Air Force Personnel Council and the Air Force Personnel Board 

(8 March 2007), certified current 11 April 2011 

AFI 36-2603, Air Force Board for Correction of Military Records (5 March 2012)

AFI 36-2803, The Air Force Military Awards and Decorations Program (18 December 2013), 

incorporating Change 1 (22 June 2015)

AFI 36-2911, Desertion and Unauthorized Absence (15 October 2009)

AFI 36-3034, Remission of Indebtedness (21 November 2013) 

AFI 36-3213, Air Force Discharge Review Board (DRB) (15 April 2008), certified current 

11 April 2014

DD Form 493, Application for the Review of Discharge from the Armed Forces of the United States

(August 2015)
312 The Military Commander and the Law
313

Humanitarian Reassignments/Deferments.................................................................................315

The Air Force Urinalysis Program.....................................................................................................318

Urinalysis Checklist for Unit Commanders...................................................................................324

Fraternization and Unprofessional Relationships......................................................................327

Hazing .......................................................................................................................................................330

Personal Bankruptcy ............................................................................................................................332

Financial Responsibility.......................................................................................................................334

Bad Checks...............................................................................................................................................337

Adoption Expense Reimbursement and Tax Credit..................................................................339

Civilian Jury Service by Military Members....................................................................................342

Human Immunodeficiency Virus (HIV)..........................................................................................344

Anthrax Immunizations......................................................................................................................349

Commander-Directed Mental Health Evaluations....................................................................352

Limited Privilege Suicide Prevention (LPSP) Program .............................................................356

Health Insurance Portability and Accountability Act (HIPAA)...............................................361

Personnel Reliability Program...........................................................................................................367

Lautenberg Amendment....................................................................................................................371

Conscientious Objection to Military Service...............................................................................374

Fitness Program .....................................................................................................................................378

The Air Reserve Component (ARC) Fitness Program................................................................384

Unauthorized Absence........................................................................................................................388

Unauthorized Absence for an Air Reserve Component (ARC) Member............................392

Line of Duty Determinations.............................................................................................................394

CHAPTER SEVEN: PERSONNEL ISSUES

7

FOR THE COMMANDER
314 The Military Commander and the Law

Disability Evaluation System.............................................................................................................399

Officer Grade Determinations..........................................................................................................405

Tattoos/Brands, Body Piercing, and Body Alteration................................................................407

Retaliation................................................................................................................................................410

No Contact Orders................................................................................................................................412
CHAPTER SEVEN Personnel Issues for the Commander 315

HUMANITARIAN REASSIGNMENTS/DEFERMENTS

When Air Force members incur substantial and continuing personal or family problems 

that can be relieved by reassigning them to a particular geographical area or allowing 

them to stay in a current assignment instead of being moved, the member may apply for 

a humanitarian reassignment or deferment under the provisions of AFI 36-2110, Assignments. This instruction applies to both officer and enlisted members.

General Policies

- A move may not be made at government expense when it is based solely on humanitarian reasons. The determining factor is the needs of the Air Force.

- If the problem can be solved by the member taking ordinary or emergency leave, 

humanitarian deferment or reassignment will ordinarily not be granted

- Requests will normally be disapproved when it is likely the problem will exist for an 

indefinite period of time

- When the commander learns of a member with personal hardships who may be 

interested in applying for a humanitarian reassignment or deferment, he or she 

should first direct the member to AFI 36-2110

-- Following that, the member receives additional counseling from the local Military 

Personnel Flight (MPF) assignments section, which will provide the member with 

the information needed to submit a formal application

- Requests are submitted through the Total Force Service Center (TFSC) via vMPF with 

supporting documentation. The burden is on the applicant to provide sufficient 

justification for the request.

- HQ AFPC/DPAPH is the approval/denial authority

Eligibility

- To be eligible for a humanitarian action, several conditions must be met, including:

-- A valid vacancy must exist at the new duty station and member must meet service retainability requirements for a permanent change of station (PCS)

-- The problem must be more severe than those normally encountered by comparable Air Force members
316 The Military Commander and the Law

-- The member’s presence is absolutely essential to alleviate the problem

-- The problem can be resolved within a reasonable period of time (normally 12 

months)

Circumstances

- While not inclusive, requests with problems arising from any of the following circumstances usually warrant approval:

-- Recent death (within 12 months) of member’s spouse or child or stepchild under 

age 18, including miscarriage at 20 or more weeks gestation

-- Serious financial problems not the result of overextension of personal military 

income that cannot be resolved by leave, correspondence, power of attorney, 

or other person or means

-- Spouse abandons dependents while the service member is serving an unaccompanied overseas tour

-- Terminal illness of family member when death is imminent within 2 years

-- State law requires presence to complete adoption procedures

-- Successful establishment or operation of an effective family advocacy program

-- Sexual abuse or assault of a dependent when it would be detrimental to stay in 

the area where the incident occurred

Expedited Transfer

- Service members who file an unrestricted report of sexual assault have the option 

of requesting a temporary or permanent expedited transfer to a different command 

or installation or reassignment of the alleged offender

-- Vice Wing Commander must act on the request within 72 hours of receiving the 

request

-- If the request is disapproved, the service member may request review of the 

decision by the first general officer in the chain of command in accordance with 

DoDI 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures,

Enclosure 5
CHAPTER SEVEN Personnel Issues for the Commander 317

References

AFI 36-2110, Assignments (22 September 2009), incorporating through Change 2, 8 June 2012, 

including AFGM2016-01, 23 June 2016

DoDI 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures (28 March 

2013), incorporating through Change 2, 7 July 2015
318 The Military Commander and the Law

THE AIR FORCE URINALYSIS PROGRAM

The purpose of the Air Force urinalysis program is to assist commanders in ensuring their 

troops are mission ready by deterring Air Force members from using illegal drugs and 

other illicit substances.

Objectives

- Identifying individuals who use and abuse illegal drugs and other illicit substances

- Providing a basis for action, adverse or otherwise, against a member based on a 

positive test result

- Enhance mission readiness and foster a drug free environment through a comprehensive program of education, prevention, deterrence and community outreach in 

support of the President’s National Drug Control Strategy

Procedures

- Close command coordination with legal, law enforcement, and other agencies is 

required for an effective urinalysis program

-- Carefully controlled and standardized collection, storage, and shipment procedures, supported by a legally defensible chain of custody, are required by directive and instruction to ensure the integrity of the program

-- If proper procedures are not followed, then use of urinalysis test results in UCMJ 

or administrative actions may be limited or, in some cases, prohibited

Air Force Drug Testing Laboratory (AFDTL)

- With the exception of urine samples tested for steroids and other nonstandard drugs 

of abuse, nearly all Air Force member urine samples are tested at the Air Force Drug 

Testing Laboratory (AFDTL), Joint Base San Antonio-Lackland, Texas. Some member 

samples are tested at the Forensic Toxicology Drug Testing Laboratory at Tripler Army 

Medical Center, Hawaii, due to geographic proximity.

- The AFDTL can test for the presence of cocaine, amphetamine/methamphetamine, 

marijuana, designer or analog amphetamines (to include MDMA (Ecstasy), MDA 

and MDEA), 6-MAM (heroin metabolite), opiates (codeine, morphine, hydrocodone, 

hydromorphone), benzodiazepines, opioids (oxycodone, oxymorphone), and synthetic cannabinoids (e.g., “Spice”)
CHAPTER SEVEN Personnel Issues for the Commander 319

- The AFDTL uses a DoD prescribed combination of analytic techniques to determine 

whether or not samples are positive for various drugs

-- Each sample must undergo at least two tests before it may be considered positive: (1) screen and (2) confirmation

-- Screen Test: Conducted primarily using immunoassay testing, with occasional 

directed screen testing done using liquid chromatography/tandem mass spectrometry (LC-MS/MS)

-- Confirmation Test: Gas chromatography/mass spectrometry (GC/MS) or LC-MS/MS 

is used for all confirmation testing

-- The DoD prescribes a minimum level beyond which a test is reported as positive 

--- Only samples that test positive above the DoD minimum level on every test 

are reported as positive

--- Samples not testing positive on any screen test or on the confirmation test 

are discarded

Urinalysis Testing

In addition to unit administered random drug testing, there are 5 common situations that 

may require urinalysis testing; consent, probable cause, commander directed, inspection, 

and medical care. Each of these has its own legal considerations for when it can be taken 

and how it can be used so consult with the staff judge advocate (SJA) before determining 

which situation to use. 

- Consent:

-- Prior to a probable cause or commander directed urinalysis test, the member 

should first be asked if he or she will consent to a urinalysis test

-- When practicable, consent should be given in writing, using an AF IMT 1364

-- You are not required to give Article 31, UCMJ, rights prior to asking for consent. 

However, evidence that a member was read these rights may be used to help 

demonstrate that consent was truly voluntary.

-- Always coordinate with the SJA before collecting urine through consent
320 The Military Commander and the Law

-- Results may be used for UCMJ or administrative actions, including adverse characterization of administrative discharges

- Probable Cause:

-- To have probable cause there must be a reasonable belief illegal drugs, or drug 

metabolites, will be present in the individual’s urine

-- Requires a search and seizure authorization from a military magistrate or a neutral 

and detached commander with authority over the person being searched to 

seize a urine specimen

-- Always coordinate with the SJA prior to obtaining a urine sample through a 

probable cause search

-- Results may be used for UCMJ or administrative actions, including adverse characterization of administrative discharges

- Commander Directed:

-- Appropriate where the member displays strange, bizarre, or unlawful behavior or 

where the commander suspects or has reason to believe drugs may be present, 

but probable cause does not exist

-- Drug rehabilitation testing is commander directed

-- Results obtained through commander directed testing can be used as a basis for 

administrative discharge action (honorable discharge only) or to support administrative actions such as letters of reprimand and promotion propriety actions

-- Commander directed test results CANNOT be used to take UCMJ action, such as 

court-martial or Article 15, or to adversely characterize administrative discharges

- Inspection:

-- Urine specimens may be ordered and collected as part of an inspection under 

Military Rule of Evidence 313(b)

-- Primary purpose of an inspection is to determine and ensure the security, military 

fitness, or good order and discipline of the unit. This may include an inspection 

to determine whether the command is functioning properly, if proper standards 

of readiness are maintained, and if personnel are present, fit, and ready for duty.
CHAPTER SEVEN Personnel Issues for the Commander 321

-- Sometimes called a “unit sweep,” an entire unit or a part of the unit may be 

inspected, or an individual may be directed to participate in a base-wide random 

selection process

-- Individual members MAY NOT be singled out for inspection (especially as a 

means to work around a lack of consent or probable cause)

-- DO NOT use an inspection when you suspect a specific individual of drug abuse. 

Consult the SJA for more appropriate options.

-- Coordinate inspections with the installation Drug Demand Reduction Program 

Manager (DDRPM). Do not announce the inspection in advance to those being 

inspected.

-- Inspection testing is the best deterrent available against drug abuse

-- Results may be used for UCMJ or administrative actions, including adverse characterization of administrative discharges

- Medical Care:

-- A urine specimen collected as part of a patient’s medical treatment, including a 

routine physical, may be subjected to urinalysis drug testing

-- Results may be used for UCMJ or administrative actions, including adverse characterization of administrative discharges

Positive Results

- Upon receipt of a positive test report, regardless of type of test, immediately contact 

the SJA

- Upon notification of a positive urinalysis test, AFOSI or SFS will schedule an interview with the service member. Do not advise the service member in advance of the 

interview or positive test result.
322 The Military Commander and the Law

Actions Authorized by Positive Drug Test Results

AFI 90-507, Table 7.1

Basis for Test Affects Discharge 

Characterization

Administrative 

Actions 

(See Note 1)

Inspection – Military Rule of Evidence (Mil. R. Evid.) 313 

(see Note 2) Yes Yes

Voluntary Consent – Mil. R. Evid. 314(e) Yes Yes

Probable Cause – Mil. R. Evid. 315, 316 (see Note 3) Yes Yes

Commander Directed (see Note 4) No Yes

Self-Identification, Initial Testing (see Note 5) No Yes

Valid Medical Purpose – Mil. R. Evid. 312(f) (see Note 6) Yes Yes

Notes:

1. Administrative actions include, but are not limited to, letters of admonishment, 

counseling and reprimand, denial of re-enlistment, removal from PRP, removal from 

duties involving firearms, removal from flying status or sensitive duties, suspension of 

security clearance, and removal of restricted area badges. If there are any questions 

regarding actions authorized for positive drug test results, consult the local servicing 

staff judge advocate.

2. Inspections under Mil. R. Evid. 313(b) include those under the installation’s random 

urinalysis drug testing program and unit sweeps.

3. Probable cause tests are authorized searches and seizures ordered by a military 

magistrate or commander (see Mil. R. Evid. 315 and 316).

4. Absent probable cause, commander directed results may not be used for disciplinary 

action under the UCMJ or to characterize service under administrative separation. 

Exception: Commander directed results may be offered for impeachment purposes 

or in rebuttal when a member first introduces evidence to infer or support a claim 

of non-use of drugs.
CHAPTER SEVEN Personnel Issues for the Commander 323

5. Members may not be disciplined under the UCMJ when they legitimately self-identify 

for drug abuse and enter the Alcohol and Drug Abuse Prevention and Treatment 

(ADAPT) Program. In the interests of safety and security, commanders may initiate 

non-adverse administrative actions such as removal from flying status or, PRP, or 

terminating restricted area badges, etc. Individuals in the ADAPT Program may also 

be disciplined under the UCMJ when independent evidence of drug use is obtained.

6. Specimens from an exam for a valid medical purpose may be used for any lawful 

purpose.

References

Military Rules of Evidence 312-316 (2015)

DoDI 1010.01, Military Personnel Drug Abuse Testing Program (13 September 2012)

DoDI 1010.16, Technical Procedures for the Military Personnel Drug Abuse Testing Program 

(MPDATP)(10 October 2012)

AFI 36-3208, Administrative Separation of Airmen (9 July 2004), incorporating through Change 7, 

2 July 2013, including AFI36-3208_AFGM2016-01, 24 June 2016 

AFI 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program (8 July 2014) 

AFI 90-507, Military Drug Demand Reduction Program (22 September 2014), certified current 

18 December 2015

AF IMT 1364, Consent for Search and Seizure (18 April 2016)
324 The Military Commander and the Law

URINALYSIS CHECKLIST FOR UNIT COMMANDERS

Note: This checklist is intended to alert commanders to important urinalysis inspection issues. It is not a complete checklist, nor is it intended to replace or supersede 

any local or higher headquarters checklist(s) or guidance pertaining to urinalysis 

inspections.

Generally 

- Do you brief the consequences of drug abuse at commander’s calls? Do you consult 

the staff judge advocate (SJA) before you do so? Do you invite a judge advocate to 

speak?

- Do you ensure that all military members, regardless of rank or status, are subject to 

inspection testing?

- Do you restrict knowledge of unit or random inspections only to those individuals 

with a “need-to-know”?

Personnel

- Are tests coordinated with the Drug Demand Reduction Program Manager (DDRPM) 

or Drug Testing Program Administrative Manager (DTPAM)?

- Do you coordinate all inspections and searches (e.g., unit sweeps, consent, probable 

cause, and commander directed testing) with the SJA?

- Have you chosen credible people to serve as trusted agent and urinalysis observers in the program in accordance with AFI 90-507, Military Drug Demand Reduction 

Program?

-- Is the trusted agent someone of unquestionable integrity and trustworthiness?

-- Have you reviewed the personnel information files (PIFs) of the trusted agent 

and observers and determined they have no Unfavorable Information File (UIF), 

history of conviction by prior courts-martial or civilian court (within the previous 

5 years), Article 15s, Letter of Reprimands (LORs), or similar administrative action 

for misconduct involving dishonesty, fraud, or drug abuse?

-- Have you ensured no trusted agent or observer has any pending criminal action, 

either UCMJ or otherwise, or any administrative action pertaining to drug abuse, 

dishonesty, fraud or other integrity offenses?
CHAPTER SEVEN Personnel Issues for the Commander 325

-- Do all observers have more than 6 months remaining time in service until either 

separation or retirement from active duty (1 year from separation or transfer 

from active participation status for Air Force Reserve Component (AFRC) and Air 

National Guard (ANG))?

-- Have you ensured that the trusted agent and observers have no medical or mental health conditions that could prevent them from performing observer duties?

-- Are the observers either commissioned officers or non-commissioned officers 

(NCOs)? If a senior airman are selected, have you obtained the concurrence of 

the SJA?

-- Are there enough observers, both male and female, to accommodate the number of individuals being tested? Have arrangements been made for additional 

observers to meet unexpected requirements?

-- Have you ensured that no observer is assigned to work in any legal office?

Notifications

- Do you personally sign the written order to each member directing each inspection?

-- If not, are you personally aware of the identity of each member who has been 

randomly selected before a pre-signed letter (by you) is issued to the member 

by the trusted agent?

- Do you notify members no sooner than two hours prior to collection time?

-- Do you require each member to properly acknowledge (date, time and member 

signature), in writing, receipt of the order?

-- If a member refuses to acknowledge receipt of the order, does the person serving 

the order document the member’s refusal?

- Do you ensure copies of such orders are maintained within the unit?

- Do you ensure that all members selected for testing report to the collection site 

within the designated collection time on the written order?

- Do you make sure shift workers or personnel on scheduled “days off” report for testing 

on their next duty day?
326 The Military Commander and the Law

Other Considerations

- Do you make sure members who are unavailable for testing due to leave, pass, 

temporary duty assignment (TDY), quarters, flying status, crew-rest, missile duty, or 

non-duty status are tested upon return of the member to duty? Do you coordinate 

this with the DDRPM?

- Do you seek advice and assistance from the SJA regarding members who fail or refuse 

to provide a sample?

- Do you immediately contact the SJA for advice and assistance regarding all positive 

test results?

Reference

AFI 90-507, Military Drug Demand Reduction Program (22 September 2014), certified current 

18 December 2015
CHAPTER SEVEN Personnel Issues for the Commander 327

FRATERNIZATION AND UNPROFESSIONAL 

RELATIONSHIPS

AFI 36-2909, Professional and Unprofessional Relationships, sets out a detailed discussion 

of Air Force policy concerning fraternization and unprofessional relationships.

Overview

- Professional relationships are essential to the effective operation of all organizations. 

The nature of the military mission requires absolute confidence in command and an 

unhesitating adherence to orders that may result in inconvenience, hardships, or, at 

times, injury or death.

- Personal relationships become matters of official concern when they adversely 

affect or have the reasonable potential to adversely affect the Air Force by eroding morale, good order, discipline, respect for authority, unit cohesion, or mission 

accomplishment

Unprofessional Relationships

- Unprofessional relationships, whether pursued on- or off-duty, are those relationships that detract from the authority of superiors or result in, or reasonably create 

the appearance of, favoritism, misuse of office or position, or the abandonment of 

organizational goals for personal interests

- Unprofessional relationships can exist between officers, between enlisted members, 

between officers and enlisted members, and between military personnel and civilian 

employees or contractor personnel

- Certain kinds of personal relationships present a high risk of becoming unprofessional

-- Familiar relationships in which one member exercises supervisory or command 

authority over another member

-- Shared living accommodations, vacations, transportation, or off-duty interests 

on a frequent or recurring basis in the absence of any official purpose or organizational benefit

- Tailored rules for unprofessional relationships exist in the recruiting, training, and 

education environments. These rules draw very specific lines for types of activities 

a trainer and trainee or a recruiter and a recruit can participate in, locations where 

they may not be at the same times, and limitations on personal interaction. See DoDI 
328 The Military Commander and the Law

1304.33, Protecting Against Inappropriate Relations During Recruiting and Entry Level 

Training and AETCI 36-2909, Recruiting, Education, and Training Standards of Conduct

- All military members share responsibility for maintaining professional relationships, 

but the senior member in a personal relationship bears primary responsibility

Fraternization

- Fraternization is an aggravated form of unprofessional relationship. It is a personal 

relationship between an officer and an enlisted member which violates the customary bounds of acceptable behavior in the Air Force and prejudices good order 

and discipline, discredits the armed services, or operates to the personal disgrace or 

dishonor of the officer involved.

- The following officer conduct is specifically prohibited by AFI 36-2909, and may be 

prosecuted under Arts. 92, 133, and/or 134 UCMJ, with reasonable accommodation 

of married members or members related by blood or marriage:

-- Officers will not gamble with enlisted members

-- Officers will not lend money to, borrow money from, or otherwise become 

indebted to enlisted members

--- An exception exists for infrequent, non-interest-bearing loans of small 

amounts to meet exigent circumstances (e.g., an individual who forgets his/

her wallet or purse and can’t pay for lunch at a unit function)

-- Officers will not engage in sexual relations with or date enlisted members

--- In dealing with officer/enlisted marriages, the evidence should first be 

assessed. When evidence of fraternization exists, the fact that an officer and 

enlisted member subsequently marry does not preclude appropriate command action based on the prior fraternization.

-- Officers will not share living accommodations with enlisted members except 

when reasonably required by military operations

-- Officers will not engage, on a personal basis, in business enterprises with enlisted 

members, or solicit or make solicited sales to enlisted members, except as permitted by DoD 5500.07-R, Joint Ethics Regulation (JER)
CHAPTER SEVEN Personnel Issues for the Commander 329

 Command and Supervisory Responsibilities

- A commander or supervisor must take corrective action if a relationship is prohibited 

by AFI 36-2909 and/or is causing a degradation of morale, good order, discipline, 

or unit cohesion. Failure to take corrective action may lead to punishment of the 

commander or supervisor.

-- Action should normally be the least severe necessary to terminate the unprofessional aspects of the relationship

-- Counseling is often an effective first step in curtailing unprofessional relationships. However, the full spectrum of administrative actions should be considered. 

--- More serious cases may warrant nonjudicial punishment

--- Referral of charges to a court-martial is only appropriate in aggravated cases

-- An order to cease the relationship, or the offensive portion of the relationship, 

can and should be given. Any order should be in writing, if possible.

-- Officers or enlisted members who violate orders are subject to UCMJ action

References

UCMJ Art. 92, 133, and 134

DoDI 1304.33, Protecting Against Inappropriate Relations during Recruiting and Entry Level 

Training (28 January 2015)

DoD 5500.07-R, Joint Ethics Regulation (JER), 30 August 1993, incorporating through Change 7, 

17 November 2011

AFI 36-2909, Professional and Unprofessional Relationships (1 May 1999), including 

AFI36-2909_AFGM2016-01, 15 June 2016

AETCI 36-2909, Recruiting, Education, and Training Standards of Conduct (2 December 2013)

AFI 36-2909 USAFASUP, Professional and Unprofessional Relationships (17 November 2011)
330 The Military Commander and the Law

HAZING

DoD policy recognizes the potential adverse effects hazing can have on morale, operational readiness, and mission accomplishment. Hazing is prohibited and should never 

be tolerated.

Definitions

- Hazing is defined as any conduct whereby a military member without proper authority causes another military member, regardless of service or rank, to suffer or be 

exposed to any activity which is cruel, abusive, humiliating, oppressive, demeaning, 

or harmful

-- Physical contact is not necessary; verbal or psychological abuse will suffice

-- Soliciting or encouraging another to engage in such activity is also considered 

hazing

-- Hazing is typically associated with “rites of passage” or initiations

- Some examples include hitting or striking, tattooing, branding, shaving, “blood pinning,” and forcing alcohol consumption

- Hazing does not include authorized training of any sort, administrative corrective 

measures, or additional military instruction

- Actual or implied consent to hazing does not eliminate the perpetrator’s culpability

Command Action

- Commanders and senior NCOs must promptly and thoroughly investigate all allegations of hazing and take appropriate action if a hazing allegation is substantiated

- A commander’s options begin with counseling and reprimands and extend to courtmartial for serious cases that involve assault, aggravated assault, maltreatment of 

subordinates, etc.

- Commanders must evaluate all activities that appear to be an initiation or “rite of 

passage” to ensure that the dignity and respect of all members are maintained
CHAPTER SEVEN Personnel Issues for the Commander 331

Punitive Regulations and the Uniform Code of Military Justice

- Although the Secretary of Defense has authorized all services to incorporate this 

policy into a punitive regulation, the Air Force does not have such a regulation and 

there are no plans to incorporate the policy into such a regulation; however, the Air 

Force may pursue disciplinary action under the UCMJ for dereliction of duty or for the 

underlying misconduct, such as assault, battery, maltreatment of subordinates, etc.

Reference

AFI 1-1, Air Force Standards (7 August 2012), incorporating Change 1, 12 November 2014
332 The Military Commander and the Law

PERSONAL BANKRUPTCY

Filing for bankruptcy protection in federal court is a statutory right of all citizens and 

does not provide a basis for adverse action. However, filing for bankruptcy may effect a 

member's eligibility for a security clearance. 

Types of Bankruptcy

- There are two general types of personal bankruptcy:

-- Chapter 7: Under Chapter 7 of the Bankruptcy Code an individual’s present assets 

(except for exempt property) may be liquidated to pay their debts

-- Chapter 13: Under Chapter 13 of the Bankruptcy Code, an individual’s future 

income (except necessary for basic living expenses) may be applied against their 

debts for a fixed period of time

Financial Responsibility

- Air Force members are required to meet financial obligations in a timely manner 

- While no adverse action shall be taken against members for filing bankruptcy, underlying misconduct associated with the circumstances leading to indebtedness may 

be a proper basis for discipline

- As with any question of financial responsibility, the commander must balance the 

personal interests and well-being of the individual against the needs of good order 

and discipline

-- Bankruptcy is one way of dealing with financial problems responsibly. Unfortunately, it is sometimes the result of actionable financial irresponsibility.

Support & Coordinating Agencies

- The base legal office assists in the following two ways:

-- Legal assistance attorneys assist Air Force members and eligible beneficiaries 

with advice regarding personal bankruptcy

-- Legal office staff advises commanders whether disciplinary action is appropriate 

in a particular case. The staff judge advocate will resolve any potential conflicts of 

interest between a legal assistance attorney who advises an Air Force member on 
CHAPTER SEVEN Personnel Issues for the Commander 333

personal bankruptcy and the attorney who advises the commander on potential 

disciplinary action.

- The financial services office (FSO) also ensures DFAS-HGA/CL is aware of bankruptcy 

filings which can affect debt payments coming directly from military pay

References

Title 11, United States Code, Bankruptcy Code

Protection against Discriminatory Treatment, 11 U.S.C. § 525

UCMJ Art. 123a

UCMJ Art. 134

AFI 36-2906, Personal Financial Responsibility (30 May 2013)

AFI 65-601, V1, Financial Management (1 Aug 2012), incorporating Change 1, 29 July 2015
334 The Military Commander and the Law

FINANCIAL RESPONSIBILITY

Air Force members are expected to timely and properly satisfy financial obligations. 

Failure to do so can result in administrative or disciplinary action and/or their debt being 

paid involuntarily via official Air Force channels.

Commander’s Responsibilities 

- In cases of financial responsibility, the commander is responsible for the following: 

-- Reviewing and assessing the basis of any allegation of financial irresponsibility

-- Advising military members of the Air Force policy to provide adequate financial 

support to to dependent family members

-- Monitoring the processing of a complaint for failure to provide adequate financial 

support to dependent family members and attempting to respond within 15 days

-- Advising military members of the procedures that a family member may implement to obtain involuntary collection of support through garnishment or statutory allotments

-- Providing copies of any pertinent financial fact sheet, see AFI 36-2906, Personal 

Financial Responsibility, attachments 2 and 3 

-- Advising a military member and a complainant that the Air Force has no authority 

to arbitrate disputed cases of nonsupport or personal indebtedness

-- Referring members with demonstrated financial irresponsibility to the appropriate base agency for assistance, normally through the Airmen and Family Readiness Center

-- Considering whether administrative or disciplinary action is appropriate

-- Considering the action with the appropriate base agencies (e.g., staff judge 

advocate (SJA), military personnel flight (MPF), inspector general (IG))

Financial Support to Dependents

- Members are expected to provide adequate financial support to their dependents

-- The amount of support should be based on the member’s ability to pay
CHAPTER SEVEN Personnel Issues for the Commander 335

-- Support may be “in kind,” such as paying mortgage, car payments, or joint debts

-- The Air Force can terminate the Basic Allowance for Housing (BAH) with dependent rate allowances for those failing to provide adequate financial support to 

family members

-- The Air Force can recoup the BAH with dependent rate allowances received by 

the member during periods the member failed to provide adequate financial 

support to family members

-- Commanders should not order members to pay a specific dollar amount to 

dependents

-- Members who falsify support documentation subject themselves to disciplinary 

or administrative action

Child Support and Alimony Payments

- State courts with jurisdiction over dependent children or a state agency with the 

proper authority can order child support payments

- A complainant can provide a garnishment order to Defense Finance and Accounting 

Service (DFAS) and receive a portion of the payment directly

- Child support may also be secured through a statutory allotment

- A commander should ensure a military member involved in these processes has 

access to a legal assistance attorney if they are not already represented by a civilian 

attorney

Third Party Allotments

- A third party can secure an involuntary allotment from a military member to satisfy 

a final judgment from a court with jurisdiction over the parties

-- When a request for involuntary allotment is received, DFAS notifies the member 

and the member’s commander

-- Notification includes the DD Form 2654, Involuntary Allotment Notice and Processing, and explains that the allotment will be established against the member’s 

pay if a response is not received within 90 calendar days from the original date 

of mailing
336 The Military Commander and the Law

--- If the member is unavailable to respond, then the member’s commander may 

grant a reasonable extension of time. The commander must notify DFAS and 

should provide appropriate documentation supporting the determination 

to allow for the extension.

--- In the absence of any additional correspondence from the commander, the 

allotment application may be processed within 15 calendar days after a 

response was due

-- If the member is available, then within 5 days of receipt of the notification, the 

commander will notify the member of the application, provide the member with 

a copy of the entire application package received from DFAS and counsel the 

member on how to complete the DD Form 2654, Involuntary Allotment Notice 

and Processing

-- If the military member consents to the allotment, the commander completes the 

DD Form 2654 and returns the completed form to DFAS

-- If the allotment is contested, the member must fully explain and support the 

reasons contesting the allotment

--- A list of reasons to contest an allotment is found in DoD 7000.14-R, Department of Defense Financial Management Regulation, Volume 7A, Chapter 41, 

para. 410506.B.1

-- If the military member fails to respond within the time allowed, the commander 

notes the failure to respond and notifies DFAS

-- If a member asserts an “exigencies of military duty” defense to the allotment the 

commander should contact the servicing legal office for further guidance

References

Servicemembers Civil Relief Act, 50 U.S.C. §§ 3901-4043 

DoD 7000.14-R, Department of Defense Financial Management Regulation (June 2011)

DoDI 1344.09, Indebtedness of Military Personnel (8 December 2008)

AFI 36-2906, Personal Financial Responsibility (30 May 2013) 

DD Form 2654, Involuntary Allotment Application (December 1999)
CHAPTER SEVEN Personnel Issues for the Commander 337

BAD CHECKS

When a military member writes a check that fails to clear for payment, it may be necessary 

to take administrative or disciplinary action to correct the behavior. Consult with the legal 

office to determine if administrative or disciplinary action is appropriate.

- For a first or relatively minor incident, counseling the member about Air Force policy 

and referral to the Personal Financial Management Program may be an appropriate 

first step

- Repeated cases of dishonored checks, or a single instance involving a large amount of 

money, may be the basis for administrative action, such as a letter of reprimand (LOR), 

Unfavorable Information File (UIF), control roster, administrative separation, and/or 

involuntary deductions by DFAS for personal indebtedness to the federal government

- Writing bad checks may constitute a violation of UCMJ Article 123a if the member:

-- Either wrote a check for the purpose of obtaining anything of value with intent 

to defraud, or wrote a check to pay a past due obligation or other purpose, with 

intent to deceive; and

-- Delivered the check knowing at the time that he/she had not or would not have 

sufficient funds in, or credit with the bank for the payment of that check

-- Evidence of intent to defraud or deceive and knowledge of insufficient funds can 

be shown by proof of notice of a dishonored check from the holder and failure 

to make payment within 5 days after such notice

- Writing bad checks may also constitute a violation of UCMJ Article 134 if the member:

-- Dishonorably failed to maintain funds AFTER the check was made and delivered

-- Proof of intent to defraud or the accused’s knowledge of insufficient funds to 

cover the check when written is not required; bad faith or gross indifference is 

sufficient

- A civilian judgement based on dishonored check may be the basis for an involuntary 

allotment of pay as provided in DoDI 1344.09, Indebtedness of Military Personnel
338 The Military Commander and the Law

References

UCMJ Arts. 123a and 134

DoDI 1344.09, Indebtedness of Military Personnel (8 December 2008)

AFI 36-2906, Personal Financial Responsibility (30 May 2013)
CHAPTER SEVEN Personnel Issues for the Commander 339

ADOPTION EXPENSE REIMBURSEMENT AND TAX CREDIT

Adoption can be expensive, but military members may be eligible for reimbursement of 

reasonable and necessary adoption expenses of up to $2,000 per child and $5,000 per 

calendar year. Additionally, taxpayers may claim a tax credit and/or income exclusion 

of up to $13,460 (amount subject to change annually) per child for qualified adoption 

expenses.

Adoption Expense Reimbursement Procedure 

- Member contacts local military personnel flight (MPF) for guidance and copies of 

the application form (DD Form 2675, Reimbursement Request for Adoption Expenses)

- Member provides required documentation, including: certified copy of adoption 

certificate or order (with certified translation to English if necessary), and receipts/

canceled checks substantiating expenses

- Unit commander certifies claim’s validity in Section VI of the completed DD Form 2675

- MPF forwards the package to the Defense Finance and Accounting Service (DFAS) 

by certified mail for review, decision, and payment

- Detailed instructions are in DoD 7000.14-R, Department of Defense Financial Management Regulations (FMRs)

Time Limitations

- The member must be on active duty when adoption becomes final

- Member must also be on active duty and have served at least 180 consecutive days 

on active duty when he/she files a claim

- Member must file no later than 1 year after the adoption is final (or 1 year after child’s 

U.S. citizenship in a foreign adoption)

- Benefits may be paid only after the adoption is final
340 The Military Commander and the Law

Qualifications 

- Reimbursement is limited to “qualifying” adoptions

-- Qualifying adoptions include adoption of a child under 18 years of age, adoption 

by a single person, an intercountry adoption, adoption of a child with special 

needs (as defined by 42 U.S.C. § 673(c)), and adoption of stepchild by military 

member

-- Adoption must have been arranged by either a qualified adoption agency or 

other source authorized to place children for adoption under State or local law

- Reimbursement is limited to “qualifying” expenses

-- Must be “reasonable and necessary” adoption expenses: agency fees, placement 

fees, legal fees and court costs, certain medical expenses, and required temporary 

foster care fees

-- Travel costs are not reimbursable (but see Tax Credit below)

-- A member cannot be reimbursed twice for same expense

--- Expenses paid to or for a member of the Armed Forces under any other adoption benefits program administered by the Federal Government or under a 

state or local government program are not reimbursable by military

-- In case of married service members, only one member may claim expenses for 

each adopted child and the couple is limited to the $5000 per calendar year 

maximum

Tax Credit and Exclusions

- As of 2016, taxpayers are able to claim a combined tax credit and/or income exclusion 

of qualified expenses up to $13,460 per eligible adopted child (subject to change 

each year)

- Claim credit or exclusion by completing and returning an Internal Revenue Service 

(IRS) Form 8839 with IRS Form 1040

- An eligible child is an individual who is under the age of 18, or is physically or mentally 

incapable of self-care 

-- Stepchild adoption does not qualify
CHAPTER SEVEN Personnel Issues for the Commander 341

- Cannot claim both the tax credit and income exclusion for the same expenses

-- Taxpayer may claim an income exclusion for any reimbursement of adoption 

expenses paid by employer

-- Must claim any allowable exclusions before claiming any allowable credit, and 

those exclusions reduce the amount of available credit

-- The credit is not refundable to taxpayer; it is limited to taxpayer's tax liability

- Taxpayer may claim credit for adoption expenses incurred over multiple tax years for 

the same adoption, but the total benefit may not exceed the $13,460 (as of 2016) 

per child

-- For domestic adoption, qualified expenses paid before the year the adoption 

becomes final are allowable as a credit the tax year after paid (even if the adoption is never finalized)

-- For foreign adoption, qualified expenses paid before and during the year are 

allowable as a credit for the year the adoption is final

-- Qualified adoption expenses paid after the adoption is final are allowable as a 

credit for the year of payment (foreign or domestic)

- Qualified adoption expenses consist of reasonable and necessary adoption fees, 

court costs, attorney fees, travel costs and other expenses which are directly related 

to the adoption of an eligible child

- The credit can be claimed even if the adoption is unsuccessful, except in the case of 

a foreign adoption

References

10 U.S.C. § 1052

42 U.S.C. § 673(c)

DoDI 1341.09, DoD Adoption Reimbursement Policy (3 November 2007), incorporating Change 1, 

23 April 2009

DD Form 2675, Reimbursement Request for Adoption Expenses (July 2016)

DoD Financial Management Regulations, 7000.14-R, Vol 7A, Appendix A, Reimbursement of 

Adoption Expenses (September 2015)

IRS Form 8839, Qualified Adoption Expenses

IRS Topic 607–Adoption Credit and Adoption Assistance Programs
342 The Military Commander and the Law

CIVILIAN JURY SERVICE BY MILITARY MEMBERS

When an Air Force member on active duty receives a summons to state or local jury 

duty, the member should inform his/her immediate commander. For the purpose of jury 

service, “active duty” includes full-time duty in the active military service, full-time training 

duty, annual training duty, active duty for training, and attending a service school while 

on active military service.

Exemption from Jury Service

- Categorical Exemption: All general officers, commanders, operating forces (forces 

whose primary missions are participating in and supporting combat), personnel in 

training, and personnel stationed outside the United States are categorically exempt 

from serving on a state or local jury

- General Exemption (Not Categorical): For all other personnel, the commander 

determines whether jury duty would unreasonably interfere with military duties or 

adversely affect the readiness of a unit, command or activity

-- Authority to determine such exemptions is pursuant to 10 U.S.C. § 982 and has 

been delegated to commanders by the Secretary of the Air Force (SecAF)

-- The immediate commander is delegated exemption denial authority while 

the special court-martial convening authority (SPCMCA) is delegated approval 

authority

Procedures

- If the member is categorically exempt, the immediate commander or designee notifies the issuing state or local official by written notice (complying with the format in 

AFI 51-301, Civil Litigation, para. 9.27.4.)

- If the member is generally (but not categorically) exempt, the immediate commander 

decides whether jury duty would unreasonably interfere with military duties or 

adversely affect the readiness of a unit, command or activity

-- If jury duty would not unreasonably interfere with military duties or adversely 

affect the readiness of a unit, command or activity, the member must perform 

jury duty

-- If the immediate commander decides jury duty would unreasonably interfere 

with military duties or adversely affect the readiness of a unit, command or 
CHAPTER SEVEN Personnel Issues for the Commander 343

activity, the immediate commander requests approval of the exemption from 

the SPCMCA using the criteria in AFI 51-301

-- The SPCMCA may then decide whether:

--- Exemption is inappropriate and instruct the member to comply with the 

jury summons

--- Exemption is appropriate, and direct the immediate commander to send a 

written notice of exemption to the issuing state or local official complying 

with AFI 51-301

--- The SPCMCA’s determination is final

- Time spent by military members on jury duty service should not be charged against 

them as leave

- Pay or entitlements should not be deducted for the period of jury service

Fees and Reimbursement

- Military members are not entitled to keep any fees for jury service; those fees should 

be made payable to the U.S. Treasury and turned in at the local finance office

- Military members may receive and keep reimbursement from the state or local jury 

authority for expenses incurred in the performance of jury duty, such as transportation costs or parking fees

References

10 U.S.C. § 982

DoDI 5525.08, Service by Members of the Armed Forces on State and Local Juries 

(3 January 2007)

AFI 51-301, Civil Litigation (20 June 2002)
344 The Military Commander and the Law

HUMAN IMMUNODEFICIENCY VIRUS (HIV)

Medical Background 

- HIV is a viral disease involving the breakdown of the body’s immune system

- Acquired Immune Deficiency Syndrome (AIDS) is an advanced stage of HIV infection, 

where there is evidence of immune deficiency by illness or laboratory traits

- Medical experts believe the nonsexual, person-to-person contact that occurs among 

co-workers within the workplace does NOT pose a risk for transmitting the virus

HIV and Military Members

- Testing: The Air Force tests all members for antibodies to HIV, medically evaluates all 

infected members, and educates members on means of prevention

-- All applicants for the Air Force are screened for the HIV infection. Applicants 

infected with HIV are ineligible to join the Air Force, with no waiver authorized.

-- All active duty personnel are screened for HIV infection every 2 years, preferably 

during their Preventive Health Assessment. They are also tested for clinically 

indicated reasons, with newly diagnosed active tuberculosis, during pregnancy, 

when diagnosed with a sexually transmitted disease, upon entry to drug or 

alcohol rehabilitation programs, and prior to incarceration.

-- Air Reserve Component (ARC) personnel are screened for HIV infection every 2 

years, preferably during their PHA and must have a current HIV test within two 

years of the date called to active duty for 30 days or more

-- An active duty member testing positive for HIV is referred to San Antonio Military 

Medical Center (SAMMC) at Joint Base San Antonio for medical evaluation and 

to determine status for continued military service

-- HIV-infected active duty members retained on active duty must be medically 

evaluated annually and are assigned within the continental United States, Alaska, 

Hawaii or Puerto Rico. HIV-infected members shall not be assigned to outside the 

continental United States (OCONUS) mobility positions. HIV-infected members on 

flying status must be placed on duty not involving flying (DNIF) status pending 

medical evaluation.

--- Waivers are considered using normal procedures established for chronic 

diseases
CHAPTER SEVEN Personnel Issues for the Commander 345

- Testing Confidentiality: Air Force policy strictly safeguards results of positive HIV 

testing

-- In accordance with DoDI 6485.01, Human Immunodeficiency Virus (HIV) in Military 

Service Members, the privacy of a service member with laboratory evidence of 

HIV infection is protected consistent with the Health Insurance Portability and 

Accountability Act (HIPAA) and the Privacy Act

-- Very limited release within Air Force on “need-to-know” basis only (e.g., unit 

commanders should not inform First Sergeants and/or supervisors unless a 

determination is made that those individuals truly need to know)

Limitations on Use of Information

- Laboratory test results confirming HIV infection may not be used as an independent 

basis for any administrative or disciplinary action, including punitive action under 

the UCMJ

- Information obtained by Department of Defense (DoD) as a result of epidemiological 

assessment (EA) interview MAY NOT be used to support any adverse personnel 

action against the member

-- “Adverse personnel actions” includes court-martial, nonjudicial punishment, line 

of duty determination, demotion, involuntary separation for other than medical 

reasons, denial of promotion or reenlistment; administrative or punitive reduction in grade, and unfavorable entry in a personnel record

-- “Nonadverse personnel actions” in which limits on use of epidemiological assessment results do not apply include: reassignment, disqualification (temporary or 

permanent) from the Personnel Reliability Program (PRP), denial; suspension; or 

revocation of security clearance, suspension or termination of access to classified information, transfer between Reserve components, removal (temporary or 

permanent) from flight status or other duties requiring high degree of stability 

or alertness, and removal of Air Force Specialty Code (AFSC)

--- These nonadverse actions CANNOT be accompanied by unfavorable entries 

in service member’s records (other than an accurate entry concerning the 

action)
346 The Military Commander and the Law

Safe Sex Orders

- “Order to Follow Preventive Medicine Requirements” is issued to all Active Duty and 

Air Reserve Component HIV-positive personnel

-- The health care provider will notify the member that he or she has tested positive. 

The member’s unit commander will also be notified through separate channels.

-- For active duty members, the unit commander issues the order to follow preventive medicine requirements 

-- For unit assigned reservists, the order is issued after the immediate commander 

determines the member will be retained in the Selected Reserve

-- The order should be signed and dated by the commander and member. The 

order is given in the presence of a credentialed healthcare provider, who can 

answer the member’s questions.

--- If the member refuses to sign, the commander should annotate in the 

acknowledgement section

-- The unit commander is responsible for confidentially safeguarding the order

-- Upon reassignment, the unit commander forwards the order in a sealed envelope 

to the gaining commander marked “TO BE OPENED BY ADDRESSEE ONLY”

-- Upon the individual’s separation from the Air Force, the order is destroyed

Disability Evaluation and Medical Separation

- Laboratory test results under the HIV program MAY NOT be used as the sole basis 

for separation of a member

-- Results may be used to support a separation based on a physical disability

- A member subject to separation undergoes a Medical Evaluation Board (MEB), then 

an Informal Physical Evaluation Board (PEB) to determine whether he or she should 

be retained on active duty or separated from the service because he or she is “unfit” 

for continued service 

-- The member has appeal rights to appear personally before a Formal PEB and also 

to appeal to the Air Force Personnel Council
CHAPTER SEVEN Personnel Issues for the Commander 347

- If deemed unfit, the member may be simply separated with a medical severance 

lump sum payment or temporarily or permanently medically retired with monthly 

medical retirement pay depending on the Board’s recommendations and the final 

action by the Secretary of the Air Force (SecAF)

- Placement on the Temporary Disability Retirement List (TDRL) is termed a temporary 

retirement because the member is reevaluated every 18 months to determine if fit 

for return to active duty or unfit and to be separated or retired. Maximum time on 

TDRL is 5 years.

- The member may voluntarily separate upon request

Military Justice/Policy Issues

- A service member who knows he or she is HIV positive, but engages in sexual intercourse with another can be punished under the UCMJ for:

-- Engaging in unprotected sexual intercourse with another without the individual’s 

knowledge of HIV status

-- Violating a “safe sex” order

-- Failing to warn a sexual partner about their HIV status, despite wearing a condom 

(merely taking “safe sex” precautions won’t remove the duty to warn)

-- Having unprotected sexual intercourse even though the partner is aware of the 

member’s HIV status, and consents

AIDS and Air Force Civilian Employees

- The Air Force does not test Air Force civilian employees for HIV, except for those civilian employees (appropriated or nonappropriated) selected for assignment overseas 

who will be screened for HIV infection pursuant to host nation requirements. Civilian 

employees are also tested for occupational exposures.

- AIDS is a disability under federal civil rights laws, and these laws prohibit discrimination on the basis of physical or mental disability. Under these laws, disabled employees could recover back pay, compensatory damages, attorney fees, costs, and expert 

fees against liable employers.
348 The Military Commander and the Law

- In March 1988, the U.S. Office of Personnel Management issued the following 

guidelines in the Federal Personnel Manual Bulletin 792-42, for federal agencies on 

handling AIDS in the federal workplace:

-- Extensive AIDS Information and Education Programs must exist

-- HIV-positive employees may not be denied employment or fired provided they 

are able to continue working (their privacy and confidentiality must be protected)

-- Employees should be granted the same sick, annual leave, or leave without pay 

as other employees with medical conditions (accommodation of handicap)

-- Employees are eligible to receive disability retirement if medical condition warrants and they have the required number of years

-- If an employee refuses to work with infected employees, he will receive information and counseling, and if he still refuses may be disciplined

References

DoDI 6485.01, Human Immunodeficiency Virus (HIV) in Military Service Members (7 June 2013)

DoDD 6485.02E, DoD Human Immunodeficiency Virus (HIV)/Acquired Immune Deficiency 

Syndrome (AIDS) Prevention Program (DHAPP) to Support Foreign Militaries

(6 December 2013)

AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation (2 February 2006), 

incorporating through Change 2, 27 November 2009

AFI 44-102, Medical Care Management (17 March 2015)

AFI 44-178, Human Immunodeficiency Virus Program (4 March 2014), certified current 

30 November 2015

Federal Personnel Manual Bulletin 792-42, AIDS in the Workplace (24 March 1988)
CHAPTER SEVEN Personnel Issues for the Commander 349

ANTHRAX IMMUNIZATIONS

AFI 48-110, Immunizations and Chemoprophylaxis for the Prevention of Infectious Diseases, 

sets forth general requirements and procedures for the immunization program. Commanders are responsible for ensuring that all military and nonmilitary personnel under 

their jurisdiction receive all required immunizations. However, anthrax immunizations are 

controlled by the Department of Defense Anthrax Vaccine Immunization Program (AVIP).

Background

- Anthrax is a bacterium that infects people when spores are inhaled, ingested, or enter 

the body through a break in the skin. Proteins produced by anthrax spores cause 

tissue damage, shock and death. Inhaled anthrax is fatal in up to 75 percent of cases 

even with antibiotic therapy.

- Immunization consists of an initial dose, followed by four additional doses given at 

4 weeks, 6 months, 12 months, and 18 months; thereafter a booster dose should be 

administered every 12 months to those who remain at risk

- On 15 December 2005, after reviewing extensive scientific evidence and carefully 

considering comments from the public, the FDA determined that anthrax vaccine 

adsorbed is licensed for the prevention of anthrax infection

- On 12 October 2006, the Deputy Secretary of Defense directed resumption of a 

mandatory AVIP for military and civilian personnel in higher risk areas or with special 

mission roles

Mandatory Immunization

- On 12 November 2015, the Deputy Secretary of Defense issued clarifying guidance 

for anthrax immunizations. The mandatory requirements are based on information 

from Combatant Commands. 

- For purposes of the mandatory requirements, “Department of Defense personnel” 

includes all military service members of the Regular or Reserve Components (including the National Guard) but only emergency-essential and non-combat-essential, or 

equivalent, Department of Defense (DoD) civilian employees 

- DoD contractor personnel includes only those contractor personnel performing 

services that support mission-essential functions
350 The Military Commander and the Law

- Under current guidance, the only mandatory requirements for anthrax vaccinations 

are as follows: 

-- DoD personnel and DoD contractor personnel assigned to or deploying to the 

U.S. Central Command area of responsibility for 15 consecutive days or longer

-- DoD personnel and DoD contractor personnel assigned to or deploying to the 

Korean peninsula for 15 consecutive days or longer, to include forward-deployed 

naval forces

-- DoD personnel and DoD contractor personnel with designated rapid response 

or support missions in the U.S. Central Command area of responsibility or the 

Korean peninsula as required by the supported command

-- DoD personnel and DoD contractor personnel performing duties or services that 

support the Chemical, Biological, Radiological and Nuclear Response Enterprise

- Individuals in the designated mandatory population cannot decline the vaccination

- Voluntary anthrax vaccinations will be available for those who already started the vaccine series but are no longer deployed to a higher threat area or no longer assigned 

designated special mission roles

- Voluntary anthrax vaccinations will be offered to all other DoD civilian employees and 

DoD contractor personnel not covered by the mandatory requirements listed above 

when assigned or deployed to the U.S. Central Command area of responsibility or the 

Korean peninsula, as well as to family members accompanying DoD personnel to the 

U.S. Central Command area of responsibility or the Korean peninsula

Enforcement

- Requirement for military members to take the anthrax vaccine is a lawful order

- If a member indicates they will refuse or has refused the vaccine

-- Determine why member is reluctant

-- Provide member with appropriate education

--- Concerns about vaccine safety should be referred to the supporting medical 

organization
CHAPTER SEVEN Personnel Issues for the Commander 351

--- Concerns about the threat should be addressed by intelligence personnel

--- If the member is still reluctant after additional education, send the member 

to the area defense counsel (ADC) for an explanation of the potential consequences of their refusal

-- Following appropriate counseling, commanders should again order the individual to take the vaccine

-- If the member continues to refuse, consult with the staff judge advocate for 

appropriate action

-- Full information on AVIP can be found at www.anthrax.mil

References

Memorandum, Deputy Secretary of Defense, Clarifying Guidance for Smallpox and Anthrax 

Vaccine Immunization Programs (12 November 2015)

Department of the Air Force, Plan for Implementing the Anthrax Vaccine Immunization Program 

(AVIP) (18 January 2007)

AFI 48-110, Immunizations and Chemoprophylaxis for the Prevention of Infectious 

Diseases (7 October 2013)

The Military Vaccine Agency–Vaccine Healthcare Centers Network Web site on Anthrax, 

http://www.vaccines.mil/Anthrax
352 The Military Commander and the Law

COMMANDER-DIRECTED MENTAL HEALTH EVALUATIONS

Purpose

Commanders or supervisors who have concerns that a member under their command 

or supervision may be suffering from a legitimate mental health problem that may affect 

that member’s ability to carry out the mission, may direct the member to the mental 

health clinic for a mental health evaluation, called a Commander-Directed Evaluation 

(CDE). Commanders and supervisors may make informal, non-mandatory recommendations for service members to seek care from a Mental Health Provider when circumstances 

do not require a CDE based on safety or mission concerns.

- DoDI 6490.04, Mental Health Evaluations of Members of the Military Services, establishes policy on the uses of, and procedures for, CDEs

-- Provides commanders and supervisors guidance on making non-mandatory 

recommendations to seek mental health care

-- Establishes the requirements for directing service members for mental health 

evaluations

-- Establishes procedures for outpatient and inpatient mental health evaluations 

and member rights associated with such evaluations

- AFI 44-172, Mental Health, also provides guidance on mental health issues, including 

CDEs

-- Establishes the Limited Privilege Suicide Prevention (LPSP) Program for members 

facing potential disciplinary action who may be at risk of suicide

-- Provides guidance on the Psychotherapist-Patient Privilege under Military Rule 

of Evidence 513 and other rules/policies governing confidentiality of mental 

health records

Commander/Supervisor Responsibilities

- The responsibility for determining whether or not to refer a service member for a 

CDE rests with the commander or supervisor

- Commanders or supervisors may request a CDE for a variety of concerns, including 

fitness for duty, occupational requirements, safety concerns, or significant changes 

in performance or behavioral changes that may be attributable to possible mental 

status changes
CHAPTER SEVEN Personnel Issues for the Commander 353

- When possible, mental health providers will assist the commander or supervisor in 

determining whether or not to direct a CDE

- A supervisor is a commissioned officer in or out of a member’s official chain of command, or a civilian employee in a grade level comparable to a commissioned officer 

who exercises supervisory authority over a service member owing to the member’s 

current or temporary duty assignment and is authorized due to the impracticality of 

involving an actual commanding officer in the member’s chain of command

- Non-emergent: When the commander or supervisor determines a non-emergency 

CDE is required, they must:

-- Advise the member there is no stigma associated with seeking mental health 

services

-- Refer the member to a mental health provider, with name and contact information

-- Tell the member the date, time and place of the scheduled CDE

- Emergent: A commander or supervisor must refer a member for an emergency CDE 

as soon as practicable when: 

-- The member, by actions or words, such as actual, attempted or threatened violence, intends or is likely to cause serious injury to himself or others 

-- The facts and circumstances indicate the member’s intent to cause such injury 

is likely

-- The commander or supervisor believes the member may be suffering from a 

severe mental disorder

Involuntary Inpatient Admissions

- A member is involuntarily admitted for inpatient evaluation and/or treatment only 

when a qualified provider determines the member has, or likely has, a severe mental 

disorder or poses imminent or potential danger to self or others and outpatient 

treatment is not appropriate

-- The member must be admitted by a psychiatrist, or when a psychiatrist is not 

available, a physician or other mental health provider (MHP) with admitting 

privileges
354 The Military Commander and the Law

-- A qualified reviewing official (normally a neutral and detached MHP) must review 

the admission within 72 hours to determine whether continued involuntary 

hospitalization is clinically appropriate

- In addition, members involuntarily admitted for treatment are afforded the following 

rights:

-- To be notified of the purpose and nature of the review and the right to legal 

representation during the review by a judge advocate or an attorney of the 

member’s choosing at the member’s expense

-- To contact a friend, relative, chaplain, attorney, or anyone else the member wishes 

to as soon as the member’s condition permits after admission to the hospital

- In the case of referral for an involuntary admission to a civilian facility, the process 

established under state law as applicable to the civilian facility will be followed

-- In a foreign country, applicable host nation laws will be followed

Command Notification Provisions

- Healthcare providers are required to follow a presumption that they are not to notify 

a service member’s commander when the service member obtains mental health 

care or substance abuse education services

- Healthcare providers are required to notify the commander when certain criteria are 

met, including, but not limited to: 

-- Serious risk of self-harm

-- Harm to others or harm to a specific military operational mission

-- Member is in the Personal Reliability Program (PRP)

-- Member is admitted or discharged from inpatient care

-- Member is experiencing an acute mental health condition that impairs their 

ability to perform assigned duties

-- Services are obtained as a result of a CDE
CHAPTER SEVEN Personnel Issues for the Commander 355

- In making a disclosure pursuant to the notification standards, providers are required 

to provide only the minimum amount of information to satisfy the purpose of the 

disclosure

Prohibited Practices

- The commander or supervisor MAY NOT:

-- Refer a member for a CDE as a reprisal for making a protected communication

-- Restrict the member from lawfully communicating with his/her attorney, the 

Inspector General (IG), or other authority about the referral

- Either act by the commander could constitute a violation of Article 92, UCMJ, and 

result in disciplinary action

- CDEs should not be confused with referrals under AFI 44-121, Alcohol and Drug Abuse 

Prevention and Treatment (ADAPT) Program, AFI 40-301, Family Advocacy Program, 

or those referrals made pursuant to a ruling from a military judge concerning the 

administration of a sanity board

References

UCMJ Art. 92

Military Rule of Evidence 513 (2015)

Rule for Courts-Martial 706 (2015)

DoDI 6490.04, Mental Health Evaluations of Members of the Military Services (4 March 2013)

DoDI 6490.08, Command Notification Requirements to Dispel Stigma in Providing Mental Health 

Care to Service Members (17 August 2011)

AFI 40-301, Family Advocacy Program (16 November 2015)

AFI 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program (8 July 2014)

AFI 44-172, Mental Health (13 November 2015)
356 The Military Commander and the Law

LIMITED PRIVILEGE SUICIDE PREVENTION 

(LPSP) PROGRAM

Purpose

- Commanders who have concerns that a member under their command who is facing 

disciplinary action may be at risk of suicide, can refer the member to the mental 

health clinic for a mental health evaluation (MHE). Under limited circumstances, 

confidences revealed during such consultations may be kept confidential between 

the patient and the mental health provider.

-- The objective of the LPSP program is to identify and treat those members who, 

because of the stress of impending action under the UCMJ, pose a genuine risk 

of suicide by providing limited confidentiality with respect to their discussions 

with a mental health provider (MHP)

-- AFI 44-172, Mental Health, is the governing instruction for the program. This 

instruction:

--- Provides guidance for commanders who wish to make a referral for an MHE 

and consider for placement in the LPSP program

--- Establishes the rights of Air Force members referred by commanders for MHEs

--- Establishes a limited confidential privilege between the MHP and a patient 

enrolled in the LPSP program

--- Provides guidance on the psychotherapist-patient privilege under Military 

Rule of Evidence (MRE) 513

- The LPSP program operates in conjunction with the guidance on commander 

directed MHEs and MRE 513

Application

- Eligible Members: The LPSP program applies to those military members who have 

been officially notified (written or oral) that they are under investigation or suspected 

of violating the UCMJ
CHAPTER SEVEN Personnel Issues for the Commander 357

Procedures 

- Initiation:

-- After official notification, if an individual involved in the processing of the disciplinary action has a good faith belief the member being disciplined may present 

a risk of suicide, the individual shall communicate that fact to the member’s 

immediate commander along with a recommendation for a MHE and possible 

placement in the LPSP program

-- Individuals involved in the processing of the disciplinary action include, but are 

not limited to, the defense counsel, the trial counsel, law enforcement officials, 

the SJA or any assistant SJA, the first sergeant, or the squadron executive officer

-- Based on the information provided by such an individual or any other relevant 

information and after consultation with a mental health provider (MHP), the 

commander may refer the member for a MHE

-- The procedures and rights associated with MHEs apply to such a referral

-- The MHP conducting the evaluation determines if the member poses a risk of 

suicide and, if so, initiates treatment, explains the LPSP protections to the member, and places the member into the LPSP program

- Duration:

-- The limited protections offered by the LPSP program last only so long as the MHP 

believes there is a continuing risk of suicide

-- The MHP must notify the commander when the member no longer poses a risk 

of suicide

-- The limited protections offered under the program cease at that time. However, 

matters disclosed while the member was in the LPSP program remain protected.

Limited Protection

- Members in the LPSP program are granted limited protection with respect to information revealed in, or generated by, their clinical relationship with MHPs. Any such 

information may not be used in any existing or future UCMJ action or when weighing 

the characterization of the member’s service in an administrative separation.
358 The Military Commander and the Law

- The limited protection does not apply to:

-- The use of the information as evidence for impeachment or rebuttal purposes in 

any proceeding in which information generated by and during the LPSP relationship was first introduced by the member concerned

-- Disciplinary or other action based on independently derived evidence

-- Any information gathered by the MHP or other provider prior to placement in the 

program or after release from the program (except for later created summaries/

documents which pertain to treatment under the LPSP program)

Psychotherapist Patient Privilege Under MRE 513

- Any confidential communication which a military member has with a psychotherapist 

may be privileged regardless of whether the member has been enrolled in the LPSP 

program according to MRE 513

-- MRE 513 offers an evidentiary privilege in cases arising under the UCMJ

--- A patient has a privilege to refuse to disclose and to prevent any other person 

from disclosing a confidential communication made between the patient 

and a psychotherapist or an assistant to the psychotherapist, in a case arising 

under the UCMJ, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition

-- MRE 513 extends to all stages of a proceeding under the UCMJ, including law 

enforcement investigations into suspected offenses, proceedings for search 

authorizations, nonjudicial punishment proceedings, court-martial actions and 

other proceedings enumerated in MRE 1101

-- MRE 513 has no application outside UCMJ proceedings

--- However, disclosure should be limited to “persons or agencies with a proper 

and legitimate need for the information and authorized by law or regulation 

to receive them” 

--- SJAs resolve disputes and determine whether disclosure should be made
CHAPTER SEVEN Personnel Issues for the Commander 359

-- Privilege may be claimed by the patient or the guardian or conservator of the 

patient

--- A person who may claim the privilege may authorize trial counsel or defense 

counsel to claim the privilege on his/her behalf

--- The psychotherapist or assistant to the psychotherapist who received the 

communication may claim the privilege on behalf of the patient

--- The authority of such a psychotherapist, assistant, guardian, or conservator to 

so assert the privilege is presumed in the absence of evidence to the contrary

-- Exceptions:

--- Patient is dead

--- Communication is evidence of child abuse/neglect, or in a proceeding in 

which one spouse is charged with a crime against a child of either spouse

--- When federal or state law, or service regulation, imposes a duty to report 

information contained in the communication

--- When the patient is a danger to any person, including the patient

--- If the communication contemplates, or the services of the psychotherapist 

are sought to commit, a future fraud/crime

--- When necessary to ensure the safety and security of military personnel, 

military dependents, military property, classified information, or the accomplishment of a military mission

--- When an accused offers evidence concerning his mental condition in defense, 

extenuation, or mitigation, under circumstances not covered by Rule for 

Courts-Martial (RCM) 706 or MRE 302

- In cases not arising under the UCMJ, psychotherapists may appeal requests for confidential information to the installation SJA

-- Confidential communications will be disclosed to persons or agencies with a 

proper and legitimate need for the information who are authorized by law to 

receive it
360 The Military Commander and the Law

- In a case under the UCMJ where the production or admission of records or communications of a patient other than the accused are in dispute, a party may seek an 

interlocutory ruling by the military judge

- Before inquiring with MHPs, commanders should consult with their servicing SJA

References

Military Rule of Evidence 513 (2015)

DoDI 6490.04, Mental Health Evaluations of Members of the Military Services (4 March 2013)

AFI 44-172, Mental Health (13 November 2015)

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016
CHAPTER SEVEN Personnel Issues for the Commander 361

HEALTH INSURANCE PORTABILITY AND 

ACCOUNTABILITY ACT (HIPAA)

HIPAA generally protects private health information from disclosure and permits disclosure only under specific circumstances.

Introduction

- In 1996, Congress enacted HIPAA to improve portability and continuity of health 

insurance coverage, to combat waste, fraud and abuse in health care delivery, and 

to improve access to long-term care services and coverage

- The statute has several components:

-- Privacy Rule: Specifically provides for increased privacy protection of protected 

health information (PHI)

-- HIPAA Security Rule: Addresses the use of technology and physical safeguards 

required to protect information

- The DoD has implemented the Privacy Rule through DoD 6025.18-R, DoD Health 

Information Privacy Regulation, and the HIPAA Security Rule in DoDI 8580.02, Security 

of Individually Identifiable Health Information in DoD Health Care Programs

- HIPAA’s Privacy Rule applies to organizations that meet the definition of “covered 

entities.” Covered entities include healthcare providers and healthcare facilities.

-- This means that Air Force medical treatment facilities (MTFs) must comply with 

HIPAA when they use or disclose medical information

-- Commanders are not considered “covered entities” under HIPAA, but medical 

information they receive from the covered entity is subject to the Privacy Act

- HIPAA does not create a private right of action for violations, but the Department of 

Health and Human Services has authority to impose civil money penalties on covered 

entities and to pursue criminal actions for individual violations of the Privacy Rule

- Air Force personnel in the covered entity are also subject to UCMJ or administrative 

actions for HIPAA violations
362 The Military Commander and the Law

Privacy Rule

- The general prohibition under HIPAA is that the PHI of individuals, living or deceased, 

shall not be used or disclosed except for specifically permitted purposes. HIPAA’s 

privacy provisions extend to deceased individuals for 50 years after death.

- PHI is information transmitted or maintained by electronic or any other form or 

medium, that relates:

-- To past, present, or future physical or mental health of an individual;

-- The provision of healthcare to an individual; or

-- The past, present or future payment for the provision of healthcare to an individual when the information identifies the individual or there is a reasonable basis 

to believe the information can be used to identify the individual

- Health information is considered individually identifiable if it includes demographic 

information such as the patient’s name, address, zip code, phone number, social 

security number, full face photographic image, finger or voice print, or other identifier

- HIPAA does allow PHI to be used for treatment, payment or healthcare operations. If 

the use of information is not for one of these purposes, the MTF generally needs the 

patient’s written authorization, or the disclosure must fall into one of the “permissible 

disclosures” categories:

-- Treatment: Generally means the provision, coordination, or management of 

health care and related services by or among health care providers

-- Payment: Generally refers to billing and collection activities

--- Includes Air Force third-party collection programs

-- Health Care Operations: Certain administrative, financial, legal, and quality 

improvement activities that are conducted by the covered entity

--- For example, the medical malpractice claims investigation process and the 

Surgeon General’s Quality Assurance Program activities

-- Business Associates: Individuals or entities who are not members of the MTF 

workforce, but who act on behalf of an MTF, performing, or assisting in the performance of a function or activity involving the use or disclosure of PHI
CHAPTER SEVEN Personnel Issues for the Commander 363

--- HIPAA also contains provisions for when providers and health plans give PHI 

to “business associates” 

--- Business associates must give written assurance that they will comply with 

HIPAA (e.g., a business associate agreement (BAA)). There is no need for BAAs 

within the DoD, as DoD 6025.18-R establishes the HIPAA requirements for 

all DoD components.

-- Certain records that you might expect to be subject to HIPAA are not

--- For example, the DoD drug testing program is not subject to HIPAA

--- DoD 6025.18-R, para. C2.2 contains a comprehensive list of health-related 

records and activities in the DoD to which HIPAA does not apply

Permissible Disclosures

- Under HIPAA, even without the individual’s authorization, an MTF may still disclose 

information for certain purposes, as summarized below. Note that most of these 

purposes have specific requirements that must be met prior to disclosure of PHI, as 

outlined in Chapter 7 of DoD 6025.18-R.

-- As required by any law (includes requirements in Air Force and DoD Regulations)

-- To avert serious threats to health or safety

-- For specialized governmental functions

--- This provision allows certain disclosures of the PHI of Armed Forces personnel for “activities deemed necessary” by appropriate military command 

authorities to assure the proper execution of the military mission (see further 

discussion below)

--- This provision also permits, among other things, disclosure of PHI to DoD or 

other Federal officials as described in Section C7.11 of DoD 6025.18-R

-- For judicial and administrative proceedings

-- For law enforcement purposes (which includes AFOSI, SF, and Judge Advocates 

when acting as prosecutors)

-- For organ, eye, or tissue donation purposes
364 The Military Commander and the Law

-- For certain research activities (subject to institutional review board (IRB) approval 

of a waiver)

-- For issues related to victims of abuse, neglect or domestic violence

-- For issues related to inmates in correctional institutions or in custody

-- For workers’ compensation

-- For public health activities

-- For health oversight activities

-- About decedents (to a coroner, medical examiner, or funeral director)

- Accounting of Disclosures:

-- Most of these disclosures are accountable, which means the MTF must document 

who received the information, when, and for what purpose and provide the 

information upon the patient’s request

-- Law enforcement personnel (to include judge advocates) may request a temporary suspension of the accounting for disclosures for law enforcement purposes 

if the MTF receives a written statement from law enforcement that accounting 

would be “reasonably likely” to impede the agency’s activities and specifies the 

time that such a suspension would be required

--- If the request is oral, the MTF can only temporarily suspend the individual’s 

right to an accounting for 30 days unless, in that time, they receive a written 

request

- Uses and disclosures incidental to a use or disclosure otherwise permitted under 

HIPAA are permissible as long as the covered entity has made reasonable efforts 

to limit the use or disclosure of the PHI to the minimum necessary and the covered 

entity has appropriate physical, administrative and technical safeguards in place to 

protect PHI

-- Some examples of incidental uses/disclosures are sign-in sheets in waiting rooms, 

calling patients by their name, and posting the patient’s name outside the door 

of a hospital room
CHAPTER SEVEN Personnel Issues for the Commander 365

Minimum Necessary Standard

- When HIPAA allows disclosure of information, MTFs are required to provide only the 

minimum amount of information necessary to satisfy the intended purpose of the 

disclosure (similar to the Privacy Act’s “need to know” standard)

- The minimum necessary rule does not apply to uses and disclosures for treatment 

purposes, disclosures directly to the patient, when the patient authorizes the disclosure, and when other laws require the use/disclosure

- It is possible the entire medical record is the “minimum necessary,” but the requester 

will have to articulate why the entire record is the “minimum necessary”

Commanders’ Access to Information

- Under the “specialized government functions” rule described above, commanders 

can access PHI of Armed Forces personnel (this does not include dependents or civilian employees) for activities deemed necessary to assure the proper execution of the 

military mission. This rule generally permits disclosures for fitness for duty purposes.

-- For example, commanders may need PHI related to readiness (vaccination status; profile status; etc.). Commanders may also require information related to 

medical conditions impacting members’ abilities to perform their duties (profile 

information; etc.). Commanders may even need PHI to verify the whereabouts 

of subordinates.

- However, under the “minimum necessary” standard stated above, any release of 

PHI must be limited in scope to what the commander actually needs to accomplish 

his/her mission:

-- For example, if a member has a foot injury that precludes prolonged standing, 

the MTF may disclose PHI to the commander related to the foot injury because 

it impacts the type of day-to-day duties that the member can be assigned (i.e., it 

impacts mission accomplishment). The MTF would not necessarily disclose the 

member’s dental records, mammograms, or other medical information unrelated 

to the foot injury, though, because that PHI may exceed the minimum necessary.

-- These disclosures are subject to accounting (these disclosures must be tracked, 

and the member can find out what information the commander accessed)
366 The Military Commander and the Law

- There is no “blanket rule” concerning release of PHI to commanders. In each case, 

the nature and extent of PHI released must be determined by evaluating the commander’s need and applying the minimum necessary standard.

- Only commanders and their designees can access PHI under these rules. AFI 41-210 

provides that a commander’s designee includes vice commander, deputy commander, first sergeant or commander’s support staff. If the commander wishes to 

designate any other individual as an authorized recipient of PHI, the commander 

must do so in writing.

- Also, note that a commander’s access to information may be further limited by DoD 

policy such as confidentiality for sexual assault victims, DoD policies on reducing the 

stigma of mental health treatment, or other applicable policy

Miscellaneous

- All Tricare beneficiaries receive a Notice of Privacy Practice (NOPP), created by DoD 

for use by all the services. The NOPP puts patients on notice of how their PHI will 

be used or disclosed, and provides information on how to request certain actions 

such as restrictions and amendments to PHI, as well as the process to file complaints 

under HIPAA.

- Any time a patient signs an authorization to release PHI, the authorization must be 

HIPAA compliant by containing certain elements described in DoD 6025.18-R. DD 

Form 2870, Authorization for Disclosure of Medical or Dental Information was created 

for that purpose and is considered a HIPAA compliant authorization.

- Amendments to HIPAA dictate requirements for reporting breaches of PHI and notifying affected individuals of breaches involving unsecured PHI

References

Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 300gg, et seq., 

29 U.S.C. § 1181 et seq., and 42 U.S.C. § 1320d et seq.

45 C.F.R. Parts 160, 162, 164 

DoD 6025.18-R, DoD Health Information Privacy Regulation (24 January 2003)

DoDI 6025.18, Privacy of Individually Identifiable Health Information in DoD Health Care Programs

(2 December 2009)

DoDI 8580.02, Security of Individually Identifiable Health Information in DoD Health Care Programs

(12 August 2015) 

AFI 41-210, Tricare Operations and Patient Administration Functions (6 June 2012)

DD Form 2870, Authorization for Disclosure of Medical or Dental Information (December 2003)
CHAPTER SEVEN Personnel Issues for the Commander 367

PERSONNEL RELIABILITY PROGRAM

The Personnel Reliability Program (PRP) is a program designed to ensure the highest 

possible standards of individual reliability in personnel performing duties associated with 

nuclear weapons systems and critical components. It is intended to prevent the unauthorized launch of a missile or aircraft armed with a nuclear weapon, or the unauthorized 

detonation of a nuclear weapon. Personnel in the PRP must be certified.

Responsibilities

- Wing commanders are responsible for the wing PRP. They serve as the reviewing 

official for all permanent decertification case files started by subordinate units. They 

also ensure base PRP meetings are conducted quarterly at the wing level.

- Group and unit commanders who control or have access to nuclear weapons, weapon 

systems, or critical components, and perform the actual PRP certification are certifying officials (COs) who certify and initiate decertification for their personnel. They may 

delegate this duty to a deputy or assistant. Certifying officials and their delegates 

must be certified in a PRP category equal to, or higher than, the personnel they are 

certifying.

- Individuals in the PRP are subject to continuous evaluation of their reliability and are 

responsible for complying with the intent of PRP while away from their duty station 

(leave, TDY, etc.). Responsibility for ensuring continuous eligibility rests with each 

individual involved with PRP. Individuals in the PRP must monitor their own reliability. 

They must also notify the CO immediately of any potentially disqualifying information 

(PDI), either their own or that of co-workers.

Categories of PRP Positions

- Critical Position: Initial certification for critical positions must have Top Secret eligibility, favorably adjudicated within the last five years. These positions generally involve 

individuals assigned nuclear duties where they have access and technical knowledge 

or can either directly or indirectly cause the launch or use of a nuclear weapon.

- Controlled Position: Initial certification for a controlled position must have Secret 

eligibility or a higher investigation that was adjudicated within the last 5 years. These 

positions generally involve individuals assigned nuclear duties and have access but 

no technical knowledge, controls access into areas containing nuclear weapons, but 

does not have access or technical knowledge, or is armed and assigned duties to 

protect and/or guard nuclear weapons.
368 The Military Commander and the Law

PRP Certification Requirements

- Individuals selected and certified for the PRP must meet the following minimum 

criteria at all times:

-- Dependable, mentally alert, and technically proficient commensurate with their 

respective duty requirements

-- Flexible in adjusting to changes in the working environment, including the ability 

to work in adverse emergency situations

-- Good social adjustment, emotional stability, personal integrity, sound judgment 

and allegiance to the United States

-- Medical evaluation

-- Personal file review

-- Personal interview

-- Position qualification

Potential Disqualifying Information (PDI)

- Any of the following traits or conduct is PDI:

-- Personal conduct involving questionable judgment

-- Emotional, mental, and personality disorders

-- Negative financial considerations

-- Criminal conduct

-- Substance or drug misuse and drug incidents

-- Alcohol use, disorder and alcohol-related incidents

-- Sexual harassment or assault

-- Security violations

-- Misuse of information technology systems
CHAPTER SEVEN Personnel Issues for the Commander 369

Certifications

- Formal: Validates that an individual has been screened, evaluated, and meets the 

standards for assignment to PRP duties

- Interim: Limits access when an individual is placed in PRP and does not currently 

possess the required security investigation for formal certification but does have a 

security investigation adequate for interim clearance

- Administrative: Granted when an individual does not currently hold a formal or 

interim certificate for PRP duties and is identified for an assignment to a PRP position

Removal from PRP

- Members may be removed from PRP duties in one of two ways: suspension or 

decertification

- Suspension:

-- Suspension is used to immediately remove an individual from PRP related duties, 

initially up to three months, without starting decertification action. The CO may 

extend the suspension to one year, in three-month increments.

-- After one year, if the reasons or conditions for suspension still exist and impact 

reliability, the individual will be decertified

-- The CO makes the final decision and can return an individual to PRP duties at any 

point during the suspension timeframe

-- A CO who is suspended may perform PRP administrative functions

- Mandatory Decertification or Disqualification:

-- Any of the following conditions will result in decertification or disqualification 

for a PRP position:

--- The individual is diagnosed as alcohol-dependent and subsequently fails 

required after-care program or fails to participate in the prescribed rehabilitation program or treatment

--- The individual is involved in trafficking, cultivation, processing, manufacture, 

or sale of any controlled drug
370 The Military Commander and the Law

--- The individual has ever used a drug that could cause flashbacks

--- The individual is diagnosed with a severe substance use disorder

--- Loss of confidence by the certifying official in the reliability of the individual

--- The individual’s security clearance eligibility has been revoked

-- Within 15 workdays of the decertification, the CO will advise the individual in 

writing of the reasons for decertification and of the requirement for review by 

the reviewing official

-- A decertification or disqualification may be reinstated provided there is documented evidence that clearly demonstrates the disqualifying reason no longer 

exists and the individual concerned is otherwise qualified

References

DoD Manual 5210.42, Nuclear Weapons Personnel Reliability Program (PRP) (13 January 2015)

DoD Manual 5210.42 AFMAN 13-501, Nuclear Weapons Personnel Reliability (PRP) 

(29 May 2015) including AFMAN13-501_AFGM2016-01, 10 March 2016

AFI 31-501, Personnel Security Program Management (27 January 2005), incorporating through 

Change 2, 29 November 2012

AFI 91-101, Air Force Nuclear Weapons Surety Program (15 August 2014), incorporating through 

Change 3, 27 April 2016
CHAPTER SEVEN Personnel Issues for the Commander 371

LAUTENBERG AMENDMENT

The 1996 Domestic Violence Amendment to the Gun Control Act (referred to as the Lautenberg Amendment) makes it a federal offense for anyone convicted of a misdemeanor 

crime of domestic violence to ship, transport, possess, or receive firearms or ammunition. 

The Department of Defense (DoD) policy for implementing this law to military personnel and DoD civilian personnel is found in DoDI 6400.06, Domestic Abuse Involving DoD 

Military and Certain Affiliated Personnel.

Definition of Crime of Domestic Violence

- An offense that has as its factual basis the use or attempted use of physical force, or 

threatened use of a deadly weapon committed by:

-- A current or former spouse of the victim

-- A parent or guardian of the victim

-- Someone who has a child in common with the victim

-- Someone who is cohabitating with the victim or who has cohabitated with the 

victim as a spouse, parent or guardian

-- Someone similarly situated as a spouse, parent, or guardian (such as a girlfriend/

boyfriend relationship)

- The title of the crime does not have to be “domestic violence” if the underlying facts 

fit within the DoD definition

Qualifying Convictions

- Any state or federal conviction for a crime of domestic violence (misdemeanor or 

felony), or an action qualifying as a conviction, prohibits the possession of a firearm 

under the Lautenberg Amendment

- Charges that are reduced or negotiated to a crime not entitled “domestic violence” 

may still qualify, if the factual basis fits within the DoD definition

- A general or special court-martial conviction for a UCMJ offense meeting the DoD 

definition

- To qualify as a "conviction", the person convicted must have been represented by an 

attorney or affirmatively waived such right
372 The Military Commander and the Law

- The following do not qualify as a conviction:

-- Convictions that are expunged or set aside

-- Convictions that are pardoned

-- Summary court-martial convictions

-- Nonjudicial punishment

-- Deferred prosecutions or similar alternate dispositions in civilian courts

- Local staff judge advocates (SJA) will assist commanders in determining if there is a 

qualifying conviction

- The DoD does not construe the amendment to apply to major military weapons 

systems, or “crew served” weapons and ammunition (including aircraft)

Air Force Implementation

- Commanders are required to give annual briefings regarding the Lautenberg 

Amendment

- Notices regarding the Lautenberg Amendment must be posted at all facilities where 

government firearms are stored, issued, disposed of, or transported

- Air Force members must complete a DD Form 2760, Qualification to Possess Firearms 

or Ammunition, under the following circumstances:

-- Annually for all personnel who work with or are required to qualify on firearm, 

destructive device, or ammunition

-- At the time of permanent change of station (PCS), permanent change of assignment (PCA), or temporary duty assignment (TDY), or other change in assignment

-- Prior to any weapons training

- Members with a qualifying conviction

-- Must lawfully dispose of all privately owned firearms and ammunition

-- Have 30 days to dispose of all firearms stored in the armory
CHAPTER SEVEN Personnel Issues for the Commander 373

-- Must immediately be denied access to all government firearms and ammunition, including Morale, Welfare, and Recreation (MWR) facilities (i.e., trap/skeet). 

Commanders must immediately retrieve any government-issued firearms and 

ammunition.

-- Are ineligible for all weapons training

-- May be subject to discharge for the underlying act of domestic violence or the 

underlying conviction but not simply because he/she is unable to possess a 

firearm

-- Members in career fields requiring firearms may be cross-flowed or retrained into 

an Air Force Specialty Code (AFSC) not requiring firearms

References

18 U.S.C. §§ 921-22 

DoDI 6400.06, Domestic Abuse Involving DoD Military and Certain Affiliated Personnel (21 August 

2007), incorporating through Change 2, 9 July 2015

AFI 31-117, Arming and Use of Force by Air Force Personnel (2 February 2016)

DD Form 2760, Qualification to Possess Firearms or Ammunition (December 2002)
374 The Military Commander and the Law

CONSCIENTIOUS OBJECTION TO MILITARY SERVICE

Although military service is an obligation of citizenship, Congress recognized early that 

certain individuals and groups hold convictions against the use of force in any form.

General Policies

- A conscientious objector (CO) is a person who is opposed to participation in war in 

any form, or the bearing of arms, based on a firm, fixed and sincere belief as a result 

of religious training or similar belief system

-- Moral or ethical beliefs, even if not characterized by the holder as “religious,” may 

provide sufficient grounds for CO status

- The objection to war must be all-inclusive, not to specific wars or conflicts

- COs are classified as either Class 1-0 (a person who sincerely objects to participation 

in war in any form), or as Class 1-A-0 (a person who sincerely objects to participation 

as a combatant in war in any form, but whose convictions will permit him or her to 

serve in noncombatant status)

- Administrative discharge by the Secretary of the Air Force (SecAF) prior to completion 

of term of service is discretionary based on the facts of each case

- Applicants for CO status who are awaiting disposition of their case should be assigned 

to duties that conflict as little as possible with their beliefs

-- Applicants must comply with the normal requirements of military service and 

perform duties they are assigned

-- Applicants must comply with active duty or transfer orders in effect at the time 

of the application or subsequently issued

Application Procedures

- Applicants have the burden of proof to show they meet CO status

- Applicants must establish, by clear and convincing evidence, the following:

-- They oppose participation in war in any form or the bearing of arms

-- Their belief is honest, sincere, and deeply held
CHAPTER SEVEN Personnel Issues for the Commander 375

-- Their belief is by virtue of religious training or other belief system akin to religion

-- The nature or basis of their claim falls under the definition of conscientious 

objection in AFI 36-3204 Procedures for Applying as a Conscientious Objector, 

Attachment 1

- Clear and Convincing Evidence: A standard of proof that does not require proof 

beyond a reasonable doubt, but does require proof more substantial than a mere 

preponderance of the evidence

- The applicant submits the application to the servicing military personnel flight (MPF) 

personnel relocation element, or to the immediate commander if the applicant is in 

the USAFR or ANG and is not serving on extended active duty

- The application will contain personal information required by AFI 36-3204, Attachment 2, and any other information deemed relevant by the applicant

- The information includes an extensive description of the individual’s personal background, a thorough description of the individual’s beliefs, and a listing of the private 

organizations to which the individual belongs

- MPF notifies the unit commander, reviews the personnel records of the applicant for 

pertinent information, and counsels the member about the effect of a CO determination on VA entitlements. MPF also schedules a chaplain and psychiatrist interview.

-- The chaplain personally interviews the applicant to determine sincerity and 

depth of conviction against war

-- The chaplain must submit a written report detailing conclusions and the reasons 

therefor, but does not make any recommendation concerning the application

-- A psychiatrist interviews the applicant to determine the presence of any mental 

disorder warranting medical or administrative disposition. Again, no recommendation on the application is made.

- The Special Court-Martial Convening Authority (SPCMA) for active duty members and 

Air Force Reserve (AFR) non-extended Active duty (EAD) members and USAFR NonEAD members appoints a judge advocate as an investigating officer (IO) to interview 

the applicant under oath, assemble all the relevant material and interview other 

witnesses
376 The Military Commander and the Law

- For Air National Guard (ANG) Non-EAD members, the wing or group commander 

appoints the investigating officer

-- The instruction contains procedures for the IO to hold a hearing on the matter, 

which the applicant may attend with an attorney at their own expense

-- The hearing is informal and not governed by the courts-martial rules of evidence 

except that all verbal testimony must be under oath or affirmation. Relevant 

evidence may be received, written statements from persons not present may be 

under oath or affirmation. The hearing is non-adversarial.

-- The IO prepares a report that states their conclusions concerning the applicant’s 

beliefs and the reasons therefore, and recommendations concerning disposition 

of the case

-- The IO must give the applicant a copy of the final report and allow the applicant 

to submit rebuttal material within 15 calendar days after receiving the report

- Guidelines for approving or disapproving applications are found in Chapter 4 of AFI 

36-3204, Chapter 4.

-- Generally, the reviewing authorities must find that an applicant’s moral and ethical beliefs oppose participation in war in any form and that the applicant holds 

these beliefs with the strength of traditional religious convictions

-- Conscientious objection must be the primary controlling factor in the applicant’s 

life

-- A primary factor is the sincerity with which the applicant holds this belief. In 

evaluating applications, carefully examine and weigh the conduct of applicants, 

in particular their outward manifestation of their beliefs along with the applicant’s thinking and lifestyle in its totality, past and present.

- The commander who appoints the IO makes a recommendation before forwarding 

the file up the chain of command

- SecAF or a designated representative makes the decision regarding CO status for 

officer applicants
CHAPTER SEVEN Personnel Issues for the Commander 377

- The final approval decision for enlisted personnel is by HQ AFMPC/DPMARS2 (active 

duty Airmen), ANGRC/DPM (ANG Airmen), HQ AFRES/CV (reserve unit Airmen), or HQ 

ARPC/CC (all other reserve Airmen); SAF/MIB is the disapproval authority

- The applicant has 15 calendar days from receipt date of adverse information to comment on or refute the material before the Air Force makes a final decision

References

DoDI 1300.06, Conscientious Objectors (31 May 2007)

AFI 36-3204, Procedures for Applying as a Conscientious Objector (15 July 1994)

AFI 36-3207, Separating Commissioned Officers (9 July 2004), incorporating through Change 6, 

18 October 2011

AFI 36-3208, Administrative Separation of Airmen (9 July 2004), incorporating through Change 7, 

2 July 2013, including AFI36-3208_AFGM2016-01, 24 June 2016
378 The Military Commander and the Law

FITNESS PROGRAM

The goal of the Fitness Program is to motivate all members to participate in a year-round 

physical conditioning program that emphasizes total fitness, to include proper aerobic 

conditioning, strength/flexibility training, and healthy eating. The Air Force uses an overall 

composite fitness score and minimum scores per component based on aerobic fitness, 

body composition, and muscular fitness components to determine overall fitness. The 

Fitness Program applies to all Active Duty, Air Force Reserve and Air National Guard 

members.

Unit/Squadron Commander’s Duties

- The unit/squadron commander’s duties include, but are not limited to, the following:

-- Executing and enforcing the unit’s fitness program and ensuring appropriate 

administrative action is taken in cases of non-compliance

-- Implementing and maintaining a unit/squadron physical training (PT) program, 

in accordance with applicable guidelines

-- Encouraging members to participate in physical training of up to 90 minutes 

three to five times weekly

-- Appoints individuals to conduct fitness assessments in support of the Fitness 

Assessment Cell (FAC), appoints Physical Training Leaders (PTLs) and appoints a 

Unit Fitness Program Manager (UFPM)

Physical Fitness Standard

- Members will receive a composite score on a 0 to 100 scale based on the following 

maximum component scores:

-- 60 points for aerobic fitness assessment

-- 20 points for body composition

-- 10 points for push-ups

-- 10 points for sit-ups
CHAPTER SEVEN Personnel Issues for the Commander 379

- The following fitness levels are determined by a member’s composite score:

-- Excellent: All component minimums met and the member receives a 90 or above 

total score

-- Good: All component minimums met and the member receives a 75 to 89.99 

total score

-- Unsatisfactory: One or more component minimums not met and/or under 75 

total score

--- However, if an Airman fails the abdominal circumference measurement of 

the fitness assessment (FA) yet takes and passes the other three components 

with a score of at least 75 points of the remaining 80 points, the FAC will 

administer the Department of Defense (DoD) prescribed body mass index 

(BMI) screen. If the Airman passes the BMI screen, the Airman passes the body 

composition component of the fitness assessment.

- Commanders may grant exemptions from the various components of the FA in 

accordance with AFI 36-2905, Fitness Program. Airmen with exemptions prohibiting 

them from performing one or more components of the FA will be assessed on the 

remaining components.

- Airmen will be exempt from the FA during pregnancy. Airman with pregnancies 

lasting 20 weeks or more are also exempt from the FA for 12 months after discharge 

from the hospital upon completion of pregnancy.

- Members will usually complete their fitness testing according to the following 

timelines:

-- Excellent Score: Member must test within 12 months

-- Good Score: Members are mandated to complete an official FA at a minimum 

of twice yearly

-- Unsatisfactory Score: Member must retest within 90 days

--- Unit commanders may not mandate Airmen to retest any sooner than the 

end of the 90-day reconditioning period

--- Retesting is not recommended during the first 42 days after an unsatisfactory test
380 The Military Commander and the Law

-- Commanders may direct unofficial practice tests

Administrative and Personnel Actions

- Members are expected to be in compliance with Air Force fitness standards at all 

times. When members fail to comply with those standards (receive an unsatisfactory 

FA score), they render themselves potentially subject to adverse action. Commanders 

should consult with their servicing staff judge advocate before taking such action.

- Prohibited Actions:

-- Commanders may not impose nonjudicial punishment solely for failing to achieve 

a satisfactory fitness score

-- While units may perform unofficial practice tests for diagnostic purposes, commanders will refrain from taking adverse action based solely on the results of 

these tests

-- A member is not subject to adverse personnel action for inability to take the 

FA if the member is on a 365-day FA exemption that has been validated by the 

military treatment facility

- Authorized Actions:

-- Unit commanders will consider adverse administrative action upon a member’s 

unsatisfactory fitness score on an official FA

-- If adverse administrative action is not taken in response to an unsatisfactory 

fitness score on an official FA, unit commanders will document in the member’s 

fitness case file as to why no action is being taken

--- The lack of such commander documentation does not discount the testing 

failure as a basis in support of administrative discharge action

-- As appropriate, unit commanders will document and take corrective action for 

members’ unexcused failures to participate in the fitness program such as failing 

to accomplish a scheduled FA, failing to attend a scheduled fitness appointment, 

failing to complete mandatory educational intervention or failing to maintain the 

required documentation of exercise while on the fitness improvement program

-- Enlisted Airmen failing to have a current/passing FA score at the Promotion 

Eligibility Cut-Off Date are ineligible for promotion
CHAPTER SEVEN Personnel Issues for the Commander 381

-- Commanders should consider delaying the promotion of officers failing to have 

a current/passing FA at the Projected Date of Promotion

-- It is within a commander's discretion to document within an EPR/OPR a referral 

for a non-current/failing FA at the evaluation close-out date, or EPR Static CloseOut Date

-- Unit commanders MUST make a discharge or retention recommendation to 

the separation authority (enlisted Airmen), show cause authority (officers), or 

appropriate discharge authority for Air Force Reserve and Air National Guard 

members when an individual remains in the Unsatisfactory fitness category 

for a continuous 12-month period or receives four unsatisfactory FA scores in a 

24-month period

--- Prior to initiation of discharge action, a military medical provider must have 

ruled out medical conditions precluding the member from achieving a passing score

Failing to Present a Professional Military Image

- Commanders must ensure members present a professional military image while 

they are in uniform

- Commanders may require individuals who do not present a professional military 

appearance (regardless of overall fitness assessment composite score) to enter the 

Fitness Improvement Program (FIP) and/or otherwise schedule individuals for fitness 

education/intervention

References

AFI 36-2905, Fitness Program (21 October 2013), incorporating Change 1, 27 August 2015

AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers (9 June 2004), 

incorporating through Change 7, 2 July 2013, including AFI36-3206_AFGM2016-01, 

24 June 2016

AFI 36-3208, Administrative Separation of Airmen (9 July 2004), incorporating through Change 7, 

2 July 2013, including AFI36-3208_AFGM2016-01, 24 June 2016

Attachment

Administrative and Personnel Actions for Failing to Attain Physical Fitness Standards
382 The Military Commander and the Law

ADMINISTRATIVE AND PERSONNEL ACTIONS FOR 

FAILING TO ATTAIN PHYSICAL FITNESS STANDARDS

*OPTIONAL Administrative and Personnel Actions for Failing to Attain Physical Fitness 

Standards (within a 24-month period in accordance with AFI 36-2905, Fitness Program,

para. 10.1.5.3. and 36-month period in accordance with AFI 36-2905, Fitness Program, 

para. 10.1.5.3.1.).

Unsatisfactory Fitness Score Options 1st

Fail

2nd

Fail

3rd

Fail

4th+ 

Fail

Verbal Counseling Use anytime and as often as needed and in 

conjunction with other options below

Letter of Counseling X X

Letter of Admonition X X

Limit Supervisory Responsibilities X X X X

Letter of Reprimand X X X X

Referral Evaluation X X X X

Delay Promotion (Officer), see AFI 36-250,1 Chapter 5 X X X X

Establish Unfavorable Information File (UIF) X X X

Reenlistment Ineligibility (see Note 1) X X X

Remove Supervisory Responsibilities X X

Deny Voluntary Retraining X X

Deny Formal Training X X

Placement on Control Roster X X

Reenlistment Non-selection (see Note 1 – 2) X X

Remove Promotion (Officer) X X

Administrative Demotion (Enlisted) X X

Administrative Separation X

(ARC only) Transfer to Obligated Reserve Section or 

Non-obligated, Non-participating Ready Personnel Section X
CHAPTER SEVEN Personnel Issues for the Commander 383

MANDATORY Administrative and Personnel Actions for Failing to Attain Physical Fitness 

Standards (within a 24-month period in accordance with AFI 36-2905, Fitness Program, 

para. 10.1.5.3. and 36-month period in accordance with AFI 36-2905, Fitness Program, 

para. 10.1.5.3.1.).

Unsatisfactory Fitness Score by PECD/SCOD (Enlisted) 1st 

Fail

2nd 

Fail

3rd 

Fail

4th+ 

Fail

Defer or Withhold Promotion or Not Recommend (Enlisted) X X X X

*This is illustrative and not binding. Unit commanders exercise discretion when selecting OPTIONAL command action(s) keeping in consideration the need for progressive 

discipline and the requirement for a separation package to be processed after the fourth 

failure in 24 months (or 36 months, when applicable in accordance with AFI 36-2905, 

Fitness Program, 10.1.5.3.1.). Commanders may use more than one action per failure. 

Recommend commanders consult with their local staff judge advocate (SJA). Refer to the 

governing instructions to determine the correct form and procedures for each action.

Notes:

1. Commanders may render an Airman ineligible for reenlistment rather than denying 

reenlistment by specifying ineligibility versus non-selection on the AF Form 418, 

Selective Reenlistment Program Consideration. This allows the flexibility of authorizing 

Airmen to extend their reenlistment for either 4 or 7 months (7 or 12 for ARC) to 

improve their fitness level. Airmen non-selected for reenlistment are not allowed 

to extend for any reason and will separate on the date of separation (DOS). Commanders may complete a second AF Form 418 changing the Airman’s ineligibility or 

non-selection status at any time.

2. For ARC, the use of this option should be weighed against use of administrative 

separation and is applicable where recall of this member would not jeopardize mission readiness.

3. If an Airman has a history of FA failures, then passes, only to fail again—commanders 

should consider a more aggressive approach for OPTIONAL actions.

Reference

AFI 36-2905, Fitness Program (21 October 2013), incorporating Change 1, 27 August 2015
384 The Military Commander and the Law

THE AIR RESERVE COMPONENT (ARC) 

FITNESS PROGRAM

The goal of the ARC Fitness Program is to motivate all members to participate in a yearround physical conditioning program that emphasizes total fitness, to include proper 

aerobic conditioning, strength/flexibility training, and healthy eating. 

Unit/Squadron Commander’s Duties

- The unit/squadron commander’s duties include, but are not limited to, the following:

-- Determine frequency of physical training (PT) programs during unit training 

assemblies (UTA) and annual tour (AT) duty-time based on mission requirements

-- Encourages Air Reserve Technician and Air National Guard (ANG) Full-Time 

Technicians to participate in duty-time PT according to ARC policy for civilian 

employees and develop plans for their participation

-- May authorize points and pay to accomplish mandatory fitness improvement 

programs (FIP) and to receive counseling from Health Promotion staff. This does 

not include authorization of points or pay for the sole purpose of performing a 

fitness assessment (FA).

-- Executing and enforcing the unit’s fitness program

-- Ensures appropriate administrative action is taken in cases of non-compliance

-- Implementing and maintaining a unit/squadron PT program, in accordance with 

applicable guidelines

-- Encourage members to participate in PT of up to 90 minutes three to five times 

weekly

--- Air Reserve Component (ARC) caveat: The commander can only encourage this but the member cannot be put into status if they are: traditional 

reservervists (TRs), Air Reserve Technicians (ARTs), and similar status, to 

accomplish this 

--- It is ultimately the member’s responsibility to stay fit on their own time
CHAPTER SEVEN Personnel Issues for the Commander 385

Physical Fitness Standard

- Members will receive a composite score on a 0 to 100 scale based on the following 

maximum component scores:

-- 60 points for aerobic fitness assessment

-- 20 points for body composition

-- 10 points for push-ups

-- 10 points for sit-ups

- The following fitness levels are determined by a member’s composite score:

-- Excellent: (90 or above) and all component minimums met;

-- Satisfactory: (75 to 89.99) and all component minimums met;

-- Unsatisfactory: (under 75) and/or one or more component minimums not met;

- Members will usually complete their fitness testing according to the following 

timelines:

-- Excellent Score: Member must test within 12 months

-- Satisfactory Score: Members are mandated to complete an official FA at a minimum of twice yearly

-- Unsatisfactory Score: Must retest within 90 days (180 days for ANG (Title 32)). 

Retesting is not recommended during the first 42 days after an unsatisfactory 

test.

--- Commanders MAY direct unofficial practice tests but the member must be 

in status (ARC caveat)

--- ARC Active Guard/Reserve (AGR) members must participate in a unit FIP and 

start FIP (if co-located, otherwise online) within 10 days of the failed FA

--- Non-AGR ARC (AFR and ANG) must accomplish FIP within 60 days of Unsatisfactory FA
386 The Military Commander and the Law

--- Members in the Unsatisfactory fitness category will remain in the FIP/SFIP 

until they achieve a Satisfactory or Excellent FA score

- ARC members who commute from a lower altitude to perform duty at their assigned/ 

attached unit at a location where the altitude ≥ 5250 feet, may perform FA with an 

Air Force unit at or near their home altitude, with commander’s approval

-- The Unit Fitness Program Manager (UFPM) at the unit of assessment will forward a 

copy of FA results to ARC member’s assigned/attached UFPM for Air Force Fitness 

Management System (AFFMS) II update and tracking purposes

-- This variation is only for ARC members who are not afforded the 42-day acclimatization period at the assessment site

- ARC medical unit providers will advise members to consult their Personal Care Provider (PCP) to recommend specific PT appropriate for medical condition or may refer 

the member to the FIP if available

-- MTFs can provide space available evaluation as required for eligible ARC members

-- To obtain an exemption based on evaluation and recommendation of PCP, the 

member must provide the ARC medical unit with medical documentation to 

include diagnosis, treatment, prognosis, and period and type of physical limitations or restrictions

-- Individual Reservists (IR) may be referred by the military treatment facility (MTF) 

to their PCP

Administrative and Personnel Actions

- Members are expected to be in compliance with Air Force fitness standards at all 

times. When members fail to comply with those standards (receive an Unsatisfactory 

FA score), they render themselves potentially subject to adverse action. Commanders 

should consult with their servicing staff judge advocate before taking such action.

- Prohibited Actions:

-- Commanders may not impose nonjudicial punishment (Article 15) solely for failing to achieve a satisfactory fitness score

-- A member is not subject to adverse personnel action for inability to take the FA 

if the member is on a 365-day (per permanent) FA exemption
CHAPTER SEVEN Personnel Issues for the Commander 387

-- While units may perform unofficial practice tests for diagnostic purposes, commanders will refrain from taking adverse action based solely on the results of 

these tests

- Unit commanders will consider adverse administrative action upon a member’s 

unsatisfactory fitness score on an official FA

-- If adverse administrative action is not taken in response to an unsatisfactory 

fitness score on an official FA, unit commanders will document in the member’s 

fitness case file as to why no action is being taken

-- The unit commander must make a discharge or retention recommendation to 

the appropriate discharge authority once a member receives four unsatisfactory 

FA scores in a 24-month period

--- A decision to retain the member does not remove or discount previous FA 

Unsatisfactory assessments

- As appropriate, unit commanders will document and take corrective action for 

members’ unexcused failures to participate in the FP such as failing to accomplish a 

scheduled FA, failing to attend a scheduled fitness appointment, or failing to complete mandatory educational intervention

- ARC members can be involuntarily reassigned to non-participating status for unsatisfactory progress in the PT program according to AFI 36-2115, Assignments within 

the Reserve Components

References

AFI 36-2905, Fitness Program (21 October 2013), incorporating Change 1, 27 August 2015

AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers (9 June 2004), 

incorporating through Change 7, 2 July 2013, including AFI36-3206_AFGM2016-01, 

24 June 2016

AFI 36-3208, Administrative Separation of Airmen (9 July 2004), incorporating through Change 7, 

2 July 2013, including AFI36-3208_AFGM2016-01, 24 June 2016

AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve 

Members (14 April 2005), incorporating through Change 3, 20 September 2011
388 The Military Commander and the Law

UNAUTHORIZED ABSENCE

Most forms of unauthorized absence, from simply being late for work (failure to go) to 

an extended absence without leave, are punishable under Article 86, UCMJ. Airmen 

who intend to abandon their military duties permanently are deserters and are subject 

to prosecution under Article 85, UCMJ. Aside from disciplinary actions, there are certain 

requirements and considerations a unit must satisfy when handling cases involving an 

unauthorized absence.

- When an unauthorized absence is discovered, it is important to note the date and time

-- Failure To Go: An absence of less than 24 hours is classified as a failure to go, for 

administrative purposes

-- Absence Without Leave: When the absence continues longer than 24 hours, the 

member’s unit must change the member’s administrative status to absence 

without leave (AWOL)

-- Deserter: On the 31st day of continuous absence, the member’s unit must change 

the member’s administrative status to deserter

-- Taking these administrative steps WILL NOT, standing alone, prove that the 

member has committed an unauthorized absence

-- The administrative steps will affect pay and allowances and put the service member’s name in a database civilian law enforcement can access during routine stops

- Duty Status Whereabouts Unknown: Regardless of the reason for the absence, if the 

commander’s initial investigation reveals any indication that the absence results from 

an involuntary casualty rather than desertion or unauthorized absence, a status of 

Duty Status Whereabouts Unknown (DUSTWUN) may be appropriate. Consult AFI 

36-3002, Casualty Services, the Military Personnel Flight (MPF) and the servicing staff 

judge advocate (SJA) for advice in such cases.
CHAPTER SEVEN Personnel Issues for the Commander 389

Commander Responsibilities:

- Under AFI 36-2911, Desertion and Unauthorized Absence, Chapter 2 and Table 1.1, if 

the member reasonably appears to be absent without authority, the commander 

must:

-- Immediate Actions:

--- Contact the MPF and inform them of the member’s status

--- Consult with the servicing SJA to determine if the member meets any of the 

criteria under AFI 36-2911, para. 1.5. If so, immediately change the member’s 

status to "deserter". 

---- Criteria include duty or travel restrictions, access to top secret or other 

qualifying classified documents, request for asylum or residence in a 

foreign country, uncompleted action for a previous AWOL, escaped 

prisoner, wanted for a serious UCMJ violation, or evidence of intent to 

remain away permanently

--- Evaluate the case to determine whether AFI 36-3002, Casualty Services, applies

--- Notify Security Forces (SF) if necessary

-- After 24 Hours of Absence: Prepare an AF Form 2098, Duty Status Change, changing the absentee’s status to either AWOL or deserter as appropriate, and forward 

it to the MPF, with a copy to the local Finance Office. Consult your SJA.

-- On the Third Day of Absence: Prepare and forward a 72-hour inquiry (in accordance with AFI 36-2911, para. 2.2.3) to SF and MPF and re-evaluate whether AFI 

36-3002 applies

--- If the member is administratively classified as a deserter, the commander 

prepares, signs and distributes the DD Form 553, Deserter/Absentee Wanted 

by the Armed Forces, and changes the member’s duty status within 24 hours 

of the decision to place the member in deserter status

-- On the 10th Day of Absence: Prepare and forward letters to the next of kin and 

allotment payees, and provide copies of these letters to MPF
390 The Military Commander and the Law

-- On the 31st Day of Absence:

--- Ensure processing of DD Form 553 (MPF will assist in preparation) and decide 

(with SF and MPF help) to whom DD Form 553 should be sent

--- Initiate AF IMT 2098 changing status from AWOL to deserter

--- Notify MPF of the member’s continued absence; retrieve dependent ID 

cards as required by AFI 36-3026_IP, Identification Cards for Members of the 

Uniformed Services, Their Eligible Family Members, and Other Eligible Personnel, Table 8.3 when member is placed in deserter status. Dependents lose 

medical benefits and shopping privileges in accordance with AFI 36-3026_IP, 

Volume 1, Table 9.2.

--- Consult with SJA about filing court-martial charges

--- Prepare 31st day status report in accordance with AFI 36-2911, para. 2.2.5

-- On the 60th Day of Absence: Notify SF and MPF of the member’s continued 

absence, obtain updated input from SF and prepare and forward the 60-day 

status report in accordance with AFI 36-2911, para. 2.2.5

-- On the 180th Day of Absence: Personnel Data Systems program automatically 

drops absentee from the unit rolls. Commander notifies SF of status change and 

consults with SJA concerning other options and/or requirements.

- Military law enforcement personnel and commissioned, warrant, petty, and noncommissioned officers may apprehend absentees and deserters. Civil officers authorized to arrest offenders under federal and state laws may arrest a deserter and deliver 

the offender into the custody of the Armed Forces. These civil officers may also arrest 

absentees at the request of military and federal authorities.

- United States authorities may apprehend absentees and deserters in foreign countries only when an international agreement with the country authorizes it or under 

an agreement with proper local authorities that does not violate an existing international agreement. Always consult the SJA in these cases.
CHAPTER SEVEN Personnel Issues for the Commander 391

References

AFI 36-2911, Desertion and Unauthorized Absence (15 October 2009)

AFI 36-3002, Casualty Services (22 February 2010), certified current 8 February 2012

AFI 36-3026_IP, Identification Cards for Members of the Uniformed Services, Their Eligible

Family Members, and Other Eligible Personnel (17 June 2009), including administrative change 

2 November 2009

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016

DD Form 553, Deserter/Absentee Wanted by the Armed Forces (March 2015) 

AF IMT 2098, Duty Status Change (2003)
392 The Military Commander and the Law

UNAUTHORIZED ABSENCE FOR AN AIR RESERVE 

COMPONENT (ARC) MEMBER

Unauthorized absences for ARC members are handled very similarly as unauthorized 

absences for Active Duty (AD) members. There are a few distinctions in processing 

requirements.

General Policies

- When an Extended Active Duty (EAD) order calls an ARC member to active duty (AD), 

the AD unit the member is temporarily assigned to processes the absence only after 

coordination with the home unit

- An ARC member voluntarily or involuntarily called or recalled to AD or active duty 

for training (ADT) who fails to report is an absentee if strong evidence exists that the 

member received the orders (Title 10 orders)

Reporting Unauthorized Absences

- The unit to which the member is attached for AD must coordinate with the home 

unit before processing the Absence without Leave (AWOL)/deserter action

-- If Special Activities Branch (AFPC/DPSOA) or Headquarters USAF Academy, Cadet 

Accessions (HQ USAFA/DPYQD) ordered the member to EAD, contact the appropriate office within 1 duty day to determine if substantial proof of delivery of 

orders exist before taking any unauthorized absence action

-- The unit of assignment completes appropriate actions outlined in AFI 36-2911, 

Desertion and Unauthorized Absence, Chapter 2

-- Include the Military Personnel Division, Air National Guard, ANG/DPP, 1411 Jefferson Davis Highway, Arlington, Virginia 22202-3231 (for ANGUS members) and 

the Personnel Employment Branch, Air Force Reserve Command, HQ AFRC/DPMF, 

155 Richard Ray Blvd, Robins Air Force Base, Georgia 31098-1635 (for USAFR 

members) on the distribution of all reports and the DD Form 553, Deserter/

Absentee Wanted by the Armed Forces, when classifying a member ordered to AD 

or ADT as a deserter

-- If questions arise, contact AFPC/DPWCM (DSN 665-3727 or 1-800-531-5501)
CHAPTER SEVEN Personnel Issues for the Commander 393

- The commander of the disposition unit takes the actions outlined in Chapter 4 of 

AFI 36-2911

-- Include ANG/DPP and HQ AFRC/DPMF as information addressees on the DD Form 

616, Report of Return of Absentee

Disposition

- Disposition once the member has been returned to military control is covered by AFI 

36-2911, Chapter 4 and Table 4.1

- When a Guard or Reserve member ordered to ADT returns to military control, actions 

in outlined in Chapter 4 apply, except para. 4.4

- The detaining unit sends an e-mail notifying the return of a deserter to military control to ANG/DPP and AFPC/DPWCM

-- The detaining unit gives the member a non-chargeable transportation request 

if no escort is used

References

AFI 36-2911, Desertion and Unauthorized Absence (15 October 2009)

AFI 36-3002, Casualty Services (22 February 2010), certified current 8 February 2012

AFI 36-3026(I), Volume 1, Identification Cards for Members of the Uniformed Services, Their 

Eligible Family Members, and Other Eligible Personnel (17 June 2009), including 

administrative change 2 November 2009

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016

DD Form 553, Deserter/Absentee Wanted by the Armed Forces (March 2015)

DD Form 616, Report of Return of Absentee (December 1999)
394 The Military Commander and the Law

LINE OF DUTY DETERMINATIONS

A Line of Duty (LOD) determination is a finding made after an investigation into the 

circumstances of a member’s injury, illness, disease, or death. The finding determines: 

(1) whether or not the illness, injury or disease existed prior to service (EPTS) and if so, 

whether an EPTS condition was aggravated by military service; (2) whether or not the 

illness, injury, disease or death occurred while the member was absent without authority and (3) whether or not the illness, injury, disease or death was due to the member’s 

misconduct. On the basis of the LOD determination, the member or their next of kin may 

be entitled to benefits administered by the Air Force, or exposed to liabilities.

Use of the LOD Determination

- An LOD determination may impact the following:

-- Disability, retirement and severance pay

-- Forfeiture of pay

-- Extension of enlistment

-- Veteran benefits

-- Survivor Benefit Plan

-- Medical benefits and incapacitation pay for members of the Air Reserve Component (ARC)

-- Basic Educational Assistance Death Benefit

Limits on Use of an LOD Determination

- An LOD determination shall not be used as a basis for disciplinary actions

- An active duty member cannot be denied medical treatment based on an LOD determination. Furthermore, an LOD determination does not authorize recoupment of the 

cost of medical care from the member.
CHAPTER SEVEN Personnel Issues for the Commander 395

When an LOD Determination is Required

- An LOD determination must be initiated, whether the member is hospitalized or not, 

when the following occurs:

-- Death of a member: An AF Form 348, Line of Duty Determination, must be completed in every case involving the death of a member in any duty status, to 

include travel to and from a duty station

-- A RegAF member is unable to perform military duties for more than 24 hours 

due to an injury

-- An injury involving likelihood of a permanent disability

-- An injury or disease involving the abuse of alcohol or other drugs

-- A self-inflicted injury

-- An injury or disease possibly incurred during a period of unauthorized absence

-- An injury or disease possibly incurred during a course of conduct for which 

charges have been preferred under the UCMJ

-- For ARC, in addition to the situations listed above, an LOD determination must 

be made when:

--- The member incurs or aggravates an illness, injury or disease, or receives 

any medical treatment while serving in any duty status, regardless of the 

member’s ability to perform military duties

--- The member dies, or incurs, or aggravates an illness, injury or disease while 

traveling directly to or from the place at which duty is performed

--- The member dies, or incurs, or aggravates an illness, injury or disease while 

remaining overnight immediately before or between successive periods of 

inactive duty training (IDT), at or in the vicinity of the site of the IDT, if the 

site is outside reasonable commuting distance from the member’s residence
396 The Military Commander and the Law

Possible LOD Determinations

- In Line of Duty (ILOD): A determination of ILOD is made when the illness, injury, 

disease or death was not due to the member’s misconduct and was incurred when 

the member was present for duty or absent with authority when the illness, injury 

or disease was service aggravated

-- An illness, injury, disease or death sustained by a member in any duty status is 

presumed to be ILOD. This presumption may be rebutted when evidence shows 

the member was not in the line of duty (NILOD).

- Not in Line of Duty (NILOD) – Not Due To Member’s Misconduct:

-- A determination of NILOD-Not Due to Member’s Misconduct is made when a 

formal investigation determined the member’s illness, injury, disease or death 

occurred while the member was absent without authority

-- A determination of NILOD-Not Due to Member’s Misconduct is also made when 

an investigation determined, by clear and unmistakable evidence, the member’s 

illness, injury, disease or the underlying condition causing it, existed prior to the 

member’s entry into military service with any branch or component of the Armed 

Forces or between periods of such service, and was not service aggravated

- NILOD – Due to Member’s Misconduct: This determination is made following a formal 

investigation that has determined the member’s illness, injury, disease or death was 

proximately caused by the member’s misconduct. If the member’s illness, injury, disease or death occurred prior to service, in a non-duty status, or while the member was 

absent without authority and was proximately caused by the member’s misconduct, 

the case should be finalized as NILOD-Due to Member’s Misconduct.

Standard of Proof for LOD Determinations

- Except when otherwise noted in AFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay, the standard of evidentiary 

proof used in making an LOD determination is a preponderance of the evidence. A 

preponderance of the evidence is defined as the greater weight of credible evidence.

- When determining whether a preponderance of evidence exists, all available evidence must be considered, including:

-- Direct evidence based on actual knowledge or observation of witnesses
CHAPTER SEVEN Personnel Issues for the Commander 397

-- Indirect evidence, such as facts or statements from which reasonable inferences, 

deductions and conclusions may be drawn to establish an unobserved fact, 

knowledge or state of mind

-- Accepted medical principles, based on fundamental deductions, consistent with 

medical facts that are so reasonable and logical as to create a virtual certainty 

that they are correct

- Preponderance of evidence is not determined by the number of witnesses or exhibits, 

but by all the evidence and evaluating factors such as a witness’ behavior, opportunity 

for knowledge, information possessed, ability to recall, as well as related events and 

relationship to the matter being considered. In otherwords, a fact-finder may choose 

to believe a single credible witness over several witnesses the fact-finder does not 

find credible.

Types of Processing of LOD Determinations

- Administrative LOD:

-- When a military medical provider sees a member under any of the below circumstances, he or she makes an administrative determination that the member’s 

condition is ILOD. This determination is final and no further action is required.

--- As a hostile casualty (other than death)

--- As a passenger in a common carrier or military aircraft

--- The injury, illness or disease clearly did not involve misconduct, abuse of 

drugs or alcohol or self-injurious behavior

--- The injury or illness is simple, such as a sprain, contusion or minor fracture, 

and is not likely to result in permanent disability

--- For ARC, the medical provider may make an administrative determination to 

document a minor condition as ILOD if there is no likelihood of permanent 

disability, hospitalization or requirement for continuing medical treatment

- Informal LOD:

-- When an administrative determination is not appropriate, the commander investigates the circumstances of the case to determine if the member’s illness, injury, 

disease, or death occurred while the member was absent without authority, is 

due to the member’s own misconduct or EPTS
398 The Military Commander and the Law

- Formal LOD:

-- Made by higher authorities based upon a thorough investigation conducted by 

a specially appointed Investigating Officer (IO)

-- Required to support a determination of NILOD unless the condition EPTS and 

was not service aggravated

-- The immediate commander may also recommend a Formal LOD determination 

when the member’s illness, injury, disease or death occurred:

--- Under strange or doubtful circumstances

--- Under circumstances the commander believes should be fully investigated

LOD Determination Processing for Sexual Assault Cases

- A member who has incurred an injury, illness or disease as a result of sexual assault 

while performing active duty service or inactive duty training must have his or her 

LOD processed in accordance with DoDI 6495.02, Sexual Assault Prevention and 

Response (SAPR) Program Procedures

- The LOD determination process will vary depending on whether the member elects 

unrestricted or restricted reporting

LOD Determinations for Specific Situations

- See AFI 36-2910, Attachment 2 for guidance on common LOD situations

References

DoDI 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures (28 March 

2013), incorporating Change 2, 7 July 2015

AFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON), and 

Incapacitation (INCAP) Pay (8 October 2015)

AF Form 348, Line of Duty Determination (2002)
CHAPTER SEVEN Personnel Issues for the Commander 399

DISABILITY EVALUATION SYSTEM

Commanders must constantly balance their concern for mission accomplishment with 

their concern for service members’ health and safety. Challenges can arise when service 

members develop injuries, illnesses, and/or physical disabilities/limitations that impact 

their ability to perform their duties and/or to deploy. To resolve these cases, the DoD has 

developed the Disability Evaluation System (DES).

The purpose of the DES is to maintain a fit and vital force. To achieve that end, disability 

law allows the Secretary of the Air Force (SecAF) to remove from active duty those who 

can no longer perform the duties of their office, grade, rank or rating and ensure fair 

compensation to members whose military careers are cut short due to service-incurred 

or service-aggravated medical conditions.

Profiles and Duty Limitations

- Service members may develop health problems that degrade their ability to perform 

military duties. In such cases, healthcare providers should communicate appropriate 

medical recommendations regarding fitness for duty and/or duty limitations to commanders so commanders are able to determine the optimum, yet safe, utilization of 

members in their charge.

- Healthcare providers should promptly notify commanders when a service member’s 

health and/or ability to accomplish the mission is at risk due to health problems. The 

AF IMT 469, Duty Limiting Condition Report, is used to accomplish this task. The AF IMT 

469 includes, among other things, information concerning the health care provider’s 

recommendations regarding specific duty limitations for service members.

-- Because commanders are ultimately responsible for their personnel, profiles 

must be timely, accurate, and unambiguous to help commanders make the best 

decisions for their personnel and their mission

-- When a healthcare provider determines that a service member's physical condition warrants a profile, one copy of the AF IMT 469 should be given to the service 

member when he/she leaves the medical treatment facility and another copy 

must be sent to the individual’s unit commander

-- Because commanders must know the fitness for duty status of their members, the 

Health Insurance Portability and Accountability Act (HIPAA) allows for disclosures 

of health information to commanders in limited circumstances including fitness 

for duty determinations
400 The Military Commander and the Law

--- Information pertaining to fitness for duty may be released to commanders even without the service member’s authorization, however, when the 

patient has not authorized the release, the release must be properly tracked 

by medical personnel

- The mere presence of a physical defect or condition does not qualify a member for 

disability retirement or discharge

-- Disability evaluation begins only when examination, treatment, hospitalization, 

or substandard performance results in referral to a Medical Evaluation Board 

(MEB) by a military healthcare provider after a determination that the members’ 

condition is potentially unfitting

Conflict Resolution

- Commanders may consult with the medical unit’s Senior Profiling Officer (SPO) to 

maximize use of personnel with Duty Limiting Conditions (DLCs). An assessment 

based on operational risk to personnel assigned to a unit is critical to maintaining 

unit readiness at the highest degree possible.

-- In some situations, a commander may disagree with a health care provider 

regarding a service member’s profile and/or recommended duty limitations or 

mobility restrictions (MR)

- A commander who non-concurs with a MR must contact the MTF/SGP within 7 duty 

days of receipt of the mobility restricting AF Form 469 (no contact from the commander will be considered concurrence)

- If the MTF/SGP and unit commander disagree, the Airman can be placed on mobility 

status with the concurrence of the commander’s next reporting official (normally the 

Airman’s group commander)

- If the second level commander non-concurs as well, the final commander acting on 

the AF Form 469 issues a completed copy to the Airman after the MTF/SGP notifies 

Medical Standards Management Element (MSME) of the action and MSME generates 

a new AF Form 469

-- The new AF Form 469 will still reflect the MR and initial assignment availability code (AAC) but will include a statement indicating the Airman’s squadron/

group commander non-concurred and the Airman will be considered available 

for mobility/deployment
CHAPTER SEVEN Personnel Issues for the Commander 401

-- A specified deployment may have medical requirements determined by the combatant commander (COCOM). Thus, while a commander may place an individual 

on mobility regardless of medical recommendations, the gaining COCOM may 

decline to accept the Airman for deployment.

--- For a defined deployment, the medical treatment facility (MTF) will coordinate through its MAJCOM to the gaining COCOM regarding waiver of defined 

medical requirements

- Permanent MRs (i.e., Assignment Limitation Code-C (ALC-C)) may only be determined 

by DPANM or ARC SGP. These mobility limitations will be displayed on the AF Form 

469 permanently at the bottom of the physical limitations/restrictions portion and 

once assigned, will not be changed, removed, or overridden by any local DLC or 

profile action (additional restrictions may be added as appropriate)

-- Only waiver authorities as described in AFI 41-210 may authorize deployment 

for individuals placed on ALC restrictions. Unit commanders may not non-concur 

with MRs directed by DPANM or ARC SGP (i.e., ALCs)

Airmen’s Rights

- The law requires government legal representation for all Airmen in the DES and for 

any subsequent appeals to the Secretary of the Air Force (SecAF)

- The right to representation begins upon an Airmen’s receipt of results from the informal physical evaluation board (IPEB)

- These rights ensure no member may be retired or separated for physical disability 

without a full and fair hearing, and the award of fair compensation to those whose 

military careers are cut short due to a disability incurred during or permanently 

aggravated by military service

Office of Airmen’s Counsel

- The Office of Airmen’s Counsel (OAC) is comprised of active duty, reserve, and national 

guard judge advocates, civilian attorneys, and paralegals 

- The OAC’s mission is to represent Airmen throughout DES processing. OAC staff can 

answer questions concerning the member’s legal rights during the DES process.

- An Airman who is pending a MEB or Physical Evaluation Board (PEB) may contact the 

OAC by telephone or e-mail for consultation concerning the member’s rights and 

elections at any stage of the process and should do so as early as possible
402 The Military Commander and the Law

-- At initial stages, OAC Disability Counsel can provide general information to assist 

Airmen in understanding their rights and responsibilities

-- As Airmen progress through the system, Disability Counsel can provide more 

specific advice aimed at developing strategy to reach desired outcomes

-- Disability Counsel provide representation at the Formal Physical Evaluation Board 

(FPEB), assistance with appeal of FPEB results, and appeals of Veteran’s Affairs (VA) 

ratings for conditions determined unfitting by the Air Force

- The OAC staff reports directly to an independent chain of command in order to allow 

for zealous advocacy on behalf of the individual Airmen undergoing DES processing, 

within ethical boundaries

- To contact the OAC telephonically, call DSN 665-0739; commercial 210-565-0739; or 

toll free 1-855-MEB-JAGS (632-5247)

- The OAC e-mail address is: afloaja.disabilitycounsel@us.af.mil

DES Stages

- The MEB is the first step for assessing members whose retention is questionable due 

to health concerns/reasons

-- The MEB consists of three physicians appointed by the MTF/CC to determine 

whether the member has any medical issues that could make the member unfit 

for continued military service. In all mental health cases one of the three physicians must be a psychiatrist.

-- The MEB may result in either the member’s Return to Duty (with or without an 

Assignment Limitation Code “C”) or referral to the IPEB

- The IPEB consists of three board members and adjudicates cases based on a recordsonly review

-- The service member’s immediate commander must provide a statement describing the impact of the medical condition upon the member’s ability to perform 

his/her normal military duties and deploy. In most cases, the commander’s letter 

is accorded great weight by the IPEB.

- Airmen have the right to appeal the results of the IPEB to the FPEB and must make 

their appeal elections within 10 days of receiving the IPEB results
CHAPTER SEVEN Personnel Issues for the Commander 403

- The FPEB consists of three board members: one physician and two personnel officers, 

one of whom serves as Board president. The Formal hearing convenes in a closed 

door session with only the board members, the Airman whose case is under appeal, 

and his or her assigned counsel.

-- The Airman may elect to present witnesses to testify on his or her behalf. Witnesses may appear in person, telephonically, or via video-teleconference.

-- At an Airman’s request, the FPEB is another area where a commander may play a 

persuasive role in the Airman’s disability processing. While an Airman may not be 

forced to submit derogatory information, a commander in support of a member 

may provide testimony or statements in support of the member’s goal.

- The IPEB and FPEB may recommend the following:

-- Return to duty (with or without assignment limiting code)

-- Separation/retirement (with or without severance pay)

Relationship to Line of Duty Determinations

- DES procedures should not be confused with Line of Duty (LOD) determinations

- Whereas DES procedures are used to determine whether health problems limit a 

service member’s ability to perform his/her duties (and, ultimately, to remain in the 

Air Force), an LOD determination is an administrative tool for determining a service 

member’s duty status at the time an injury, illness, disability, or death is incurred

- An LOD determination may impact the member’s entitlement to benefits administered by the Air Force, or Department of Veteran’s Affairs

- In many cases, LOD and DES procedures are warranted

-- For example, if a service member sustains a serious neck injury during an off-duty 

sporting event, a LOD determination may be required to determine whether the 

service member was in the line of duty at the time of the injury (the results will 

impact the service member’s benefits and/or obligations). Similarly, a profile may 

be required restricting the service member from deploying and/or participating 

in the physical fitness program (PEB/ MEB may be warranted as well).

- LODs play a significant role in the DES process for Air Reserve Component members
404 The Military Commander and the Law

Dual Processing and Special Cases

- Commanders must inform the Physical Evaluation Board Liaison Officer (PEBLO) 

of any pending administrative or unfavorable action arising before or during the 

member’s integrated disability evaluation system (IDES) process

- Disability cases on members with an unfit finding who are also pending administrative, or who apply for non-disability retirement or discharge in lieu of court-martial 

action are processed as dual-action

-- SAFPC makes the final disposition. If SAFPC does not accept the retirement or 

discharge in lieu of court-martial action, the court-martial will proceed.

-- If the sentence does not result in punitive discharge, then the disability case can 

be processed

-- Administrative action continues in any disability case that results in a fit 

determination

- Members who are in military confinement are not eligible for processing until sentence is completed and they are placed in a returned to duty status

- HQ AFPC/DPPD and the PEBLO stop processing a case when a member is absent 

without leave (AWOL), in deserter status, or in the hands of civil authorities and do 

not resume processing until the member returns to military control and HQ AFPC/

DPPD determines the member is eligible for disability processing

References

DoDI 1332.18, Disability Evaluation System (5 August 2014)

AFI 10-203, Duty Limiting Conditions (20 November 2014)

AFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON), and 

Incapacitation (INCAP) Pay (8 October 2015)

AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation (2 February 2006), 

incorporating through Change 2, 27 November 2009

AFI 41-210, Tricare Operations and Patient Administration Functions (6 June 2012)

AFI 48-123, Medical Examinations and Standards (5 November 2013), including AFI48-123_

AFGM2015-01, 27 August 2015

AF IMT 469, Duty Limiting Condition Report (October 2007)
CHAPTER SEVEN Personnel Issues for the Commander 405

OFFICER GRADE DETERMINATIONS

While the grade at which an officer retires after serving at least twenty years is normally 

the highest grade held, federal law permits the Secretary of the Air Force to retire both 

active and reserve officers in a lower grade if their service has not been “satisfactory.” This 

authority has been delegated to the Director, Air Force Review Boards Agency. In those 

cases where an officer’s conduct or record raises questions as to the quality of his/her 

service in a particular grade, an officer grade determination (OGD) is required.

Process

- When an officer applies for retirement, any commander in the officer’s chain may 

initiate an OGD if there is evidence the officer’s service in their current grade has 

been less than satisfactory

- A commander MUST submit an OGD through the MAJCOM if the officer has:

-- Applied for retirement in lieu of judicial or administrative separation

-- A conviction by court-martial

-- A conviction by a civilian court for misconduct which did (or would) result in a 

mandatory comment and referral in the member’s next OPR, training report, or 

Performance Recommendation Form, in accordance with AFI 36-2406

-- Been the subject of any substantiated adverse finding from an officially documented investigation, proceeding, or inquiry (except minor traffic infractions)

--- Such cases include, but are not limited to, nonjudicial punishment, UCMJ 

punishment, reprimand, or admonition within four years of the application 

for retirement

- A commander MAY submit an OGD through the MAJCOM in other cases if he or she 

believes an OGD is appropriate

- At the time an officer applies for retirement, the commander will review the officer’s 

record to determine if any of the above conditions exist. If, based on that review, one 

of the conditions is met, the commander initiates an OGD.

-- The commander must notify the officer the OGD is being initiated and why

-- The officer is given 10 calendar days to respond
406 The Military Commander and the Law

- The commander then will make a recommendation regarding the officer’s retirement 

grade. That recommendation must accompany the retirement application as it is 

forwarded to the MPF.

- For retirement in lieu of administrative or punitive action, notification must indicate 

the grade determination may result in retirement in a lower grade

- OGD packages, including matters and documents submitted by the member, are 

forwarded through command channels to AFPC, which sends the case file to the Air 

Force Review Boards Agency. It is reviewed by the Air Force Personnel Board, which 

makes a recommendation to the Air Force Review Boards Agency Director.

- Any questions concerning officer misconduct, reporting requirements, or the 

appropriate administrative or judicial response to misconduct should be addressed 

through the servicing staff judge advocate or MPF

References

10 U.S.C. § 1370

10 U.S.C. § 12771

AFI 36-2023, The Secretary of the Air Force Personnel Council and the Air Force Personnel Board 

(8 March 2007), certified current, 11 April 2011

AFI 36-3203, Service Retirements (18 September 2015)

AFI 36-2406, Officer and Enlisted Evaluation Systems (2 January 2013), with corrective actions 

applied, 5 April 2013, incorporating through Change 3, 30 November 2015
CHAPTER SEVEN Personnel Issues for the Commander 407

TATTOOS/BRANDS, BODY PIERCING, AND 

BODY ALTERATION

Dress and personal appearance regulations govern the use of tattoos, body piercing, 

and body alterations.

Tattoos and Brands

- The following tattoos or brands are prohibited:

-- Unauthorized, including those that are:

--- Obscene

--- Advocate sexual, racial, ethnic, or religious discrimination

--- Commonly associated with gangs, extremist and/or supremacist organizations

---- AFOSI maintains information regarding gang/hate groups on tattoos/

brands/body markings

-- Excessive:

--- Exceed one-fourth of the exposed body part

--- Are above the collarbone and readily visible when wearing an open collar 

uniform

Tattoo Removal

- Members with an unauthorized tattoo/brand will have the tattoo removed at the 

member’s expense. Covering the tattoo is not an option.

- Depending on DoD medical resource availability, commanders may seek Air Force 

Medical support for voluntary removal of inappropriate tattoos

- Excessive tattoos or brands must be covered using current uniform items (e.g. longsleeved shirt/blouse, pants/slacks, dark hosiery, etc.) or removed
408 The Military Commander and the Law

Determinations

- The member’s commander determines on a case-by-case basis whether or not a 

tattoo or brand is unauthorized or excessive

-- MAJCOM commanders may impose more restrictive standards for tattoos or 

brands and body ornaments, on or off-duty, in those locations where Air Forcewide standards may not be adequate because of cultural sensitivities or mission 

requirements

-- For example, in a foreign country where tattoos, brands or body ornaments are 

objectionable to host country citizens or at installations where members are 

undergoing basic military training, a commander may impose more restrictive 

rules for military members, even off-duty and off the installation

Body Piercing

- Members are prohibited from attaching, affixing, or displaying objects, articles, jewelry, or ornamentation through the ear, nose, tongue, eyebrows, lips, or any other 

exposed body part (which includes visible through the uniform), when:

-- Wearing military uniform

-- Performing official duty in civilian attire

-- Wearing civilian attire on a military installation (not including areas around family 

and privatized housing)

- Females in uniform or in civilian clothes while on duty may wear one small spherical, conservative white diamond, gold, white pearl, silver pierced or clip earring per 

earlobe; the earrings in both earlobes must match and the earrings must fit tightly 

without extending below the earlobes unless the piece extending is the connecting 

band on clip earrings

- On an installation, except in areas around and in military housing and with the exception of females wearing earrings, Airmen in civilian clothes while off-duty are not 

permitted to wear jewelry through piercings

- While on official duty, except for females wearing earrings in accordance with regulations, Airmen are not authorized to wear earrings or other piercing jewelry on a 

military installation
CHAPTER SEVEN Personnel Issues for the Commander 409

- Situations may arise where a commander may restrict the wear of even non-visible 

body ornaments

-- These situations include any ornamentation that may interfere with the performance of the member’s military duties

-- Factors to consider when making this determination include (but are not limited 

to) impairing the safe and effective operation of weapons, military equipment, or 

machinery; posing a health or safety hazard to the wearer or others; and interfering with the proper wear of special or protective clothing or equipment

- Commanders should consult with their servicing staff judge advocate prior to taking 

action

Body Alteration/Modification

- Members are prohibited from altering or modifying their bodies if the alteration:

-- Is intentional and

-- Results in a visible, physical effect that disfigures, deforms or otherwise detracts 

from a professional military image

- Examples include, but are not limited to, tongue splitting or forking; tooth filing; and 

acquiring visible, disfiguring skin implants, and gouging (piercing holes large enough 

to permit light to shine through)

References

AFI 36-2002, Regular Air Force and Special Category Accessions (7 April 1999), incorporating 

through Change 4, 2 June 2014

AFI 36-2903, Dress and Personal Appearance of Air Force Personnel (18 July 2011), incorporating 

through Change 4, 28 May 2015
410 The Military Commander and the Law

RETALIATION

AFI 36-2909, Professional and Unprofessional Relationships, establishes command, supervisory and personal responsibilities in prohibiting retaliation against an alleged victim or 

other member of the Armed Forces for reporting a criminal offense.

- Retaliation against individuals who report criminal offenses is unlawful and erodes 

good order, discipline, respect for authority, unit cohesion and ultimately mission 

accomplishment

- It is the responsibility of commanders and supervisors at all levels to ensure 

compliance

- Generally, the policy applies to all active duty members and to members of the United 

States Air Force Reserve (AFR) and Air National Guard (ANG)

- Military members shall not retaliate against an alleged victim or other military member who reports a criminal offense

Definitions

- The term retaliation includes retaliation, ostracism, and maltreatment

-- Retaliation: Taking or threatening to take an adverse personnel action, or withholding or threatening to withhold a favorable personnel action, with respect to 

a military member because the member reported a criminal offense (investigated 

by IG only)

-- Ostracism: Excluding from social acceptance, privilege, or friendship with the 

intent to discourage reporting of a criminal offense or discouraging due administration of justice (investigated by command)

-- Maltreatment: Treatment by peers or other persons viewed objectively that is 

abusive or otherwise unnecessary for any lawful purpose to discourage reporting 

a criminal offense or the due administration of justice that results in physical or 

mental harm or suffering or reasonably could have caused physical or mental 

harm or suffering (investigated by command)
CHAPTER SEVEN Personnel Issues for the Commander 411

Actions in Response to Retaliation

- A commander or supervisor must take appropriate action if it is reasonable to believe 

retaliation has occurred. At a minimum, the member or members suspected of engaging in retaliation will be ordered to cease from engaging in any further retaliation.

- As soon as practicable, the alleged victim, or other military member who is believed 

to have been retaliated against, will be informed that command is aware of the suspected act or acts of retaliation, and that the alleged offenders have been ordered 

to cease from engaging in any further retaliation

- The individual retaliated against will be advised to report any further acts of retaliation

- Military members, including Reserve members on active duty or inactive duty for 

training and ANG members in Federal service, who violate the specific prohibitions 

contained in paragraph 11 of this instruction can be prosecuted under either Article 

92 or Article 134 of the UCMJ, or both, as well as any other applicable Article of the 

UCMJ, as appropriate

References

National Defense Authorization Act of Fiscal Year 2014, Section 1709(b)

DoDD 7050.06, Military Whistleblower Protection (17 April 2015)

Guide to Investigating Military Whistleblower Reprisal and Restriction Complaints (29 June 2015)

AFI 36-2909, Professional and Unprofessional Relationships (1 May 1999), including AFI36-

2909_AFGM2016-01, 15 June 2016

AFI 90-301, Inspector General Complaints Resolution (27 August 2015)

AFPD 90-3, Inspector General—The Complaints Resolution Program (18 August 2009), certified 

current 24 October 2013

SAF/IGQ Investigating Officer’s Guide (February 2012)

SAF/IGQ Commander Directed Investigations Guide (18 February 2016)

SAF/IGQ JAG Guide to IG Investigations (14 April 10)
412 The Military Commander and the Law

NO CONTACT ORDERS

Commanders may issue “no contact orders” to personnel under their command when the 

commander deems it reasonably necessary in order to protect third parties from physical 

harm (most frequently spousal, intimate partner, or child abuse) or to prevent a UCMJ 

violation. No contact orders issued for the purposes of preventing spousal/child/or intimate partner abuse are known as “military protective orders” and should be completed 

on a DD Form 2873, Military Protective Order. Commanders should issue no contact orders 

only after consultation with their staff judge advocate (SJA).

Definition

- No contact orders are similar to civilian temporary restraining orders. They are orders 

directed to military personnel, prohibiting them from having communication or 

physical contact with a particular person or persons.

Authority to Issue No Contact Orders

- May be issued by the commander of the person concerned

- Standard: Reasonably necessary to ensure the safety and security of persons within 

their commands or to protect other individuals from persons within the command

Purpose

- The lawful purpose of a no contact order is to the protection of others and the prevention of misconduct punishable by the UCMJ

-- Protect: Most often used to protect victims of domestic violence; child abuse; or 

crime victims from contact with the accused pending court-martial

-- Prevent: Common types of no contact orders to prevent future UCMJ misconduct 

include no contact orders to prevent, for example, furtherance of unprofessional 

relationships (in violation of AFI 36-2909, Professional and Unprofessional Relationships) or fraternization (Article 134, UCMJ)
CHAPTER SEVEN Personnel Issues for the Commander 413

Scope of No Contact Orders

- No contact orders may limit communication and physical interactions between a 

military member over whom the commander exercises authority and a third party. 

Limitations may include, but are not limited to:

-- Direction to refrain from contacting, harassing, or touching certain named 

persons

-- Direction to remain away from specific areas, such as home, schools, and public 

facilities

-- Direction to do, or refrain from doing, certain acts or activities

- No contact orders MAY NOTpreclude the defense counsel of a member from contacting a potential witness as part of counsel’s investigation in a pending case

Duration

- No contact orders should be limited in duration. Duration should be listed in no 

contact orders. No contact orders may be renewed as circumstances warrant.

Form of No Contact Orders

- No contact orders should be in writing and receipt confirmed in writing by the 

recipient

-- Oral no contact orders should only be issued under exigent circumstances

-- Oral no contact orders should be placed in writing as soon as possible after 

issuance

- Commanders should use the DD Form 2873 when issuing a no contact order to 

prevent potential spousal, intimate partner, or child abuse
414 The Military Commander and the Law

Relationship of Military Protective Orders to Civilian Restraining Orders

- Military Protective Orders (MPO) can be issued in conjunction with, or in addition to 

Civilian Protective Orders (CPO) issued by civilian courts. They each have their own 

independent source of authority.

- By federal law, civilian court issued restraining orders dealing with domestic violence 

incidents “shall have the same force and effect on a military installation as such order 

has within the jurisdiction of the court that issued such order.” 10 U.S.C. 1561(a)

- A commander may issue an MPO with terms that are more restrictive than those in 

the CPO to which the member is subject

- Violations of CPOs are enforceable in the civilian court which issued the order

-- If the civilian court takes no action to punish violations of the order, the military 

could pursue administrative or disciplinary action. Before doing so, ALWAYS

consult your SJA.

Enforceability

- Depending upon the circumstances, violation of a MPO is enforceable via Article 90, 

UCMJ—Willfully Disobeying a Superior Commissioned Officer; or Article 92, UCMJ—

Failure to Obey Order or Regulation

References

10 U.S.C. 1561(a) 

DoDI 6400.06, Domestic Abuse Involving DoD Military and Certain Affiliated Personnel (21 August 

2007), incorporating Change 2, 9 July 2015

DD Form 2873, Military Protective Order (July 2004)

Attachment

Template No Contact Order
CHAPTER SEVEN Personnel Issues for the Commander 415

TEMPLATE NO CONTACT ORDER

(Date)

MEMORANDUM FOR XXXXXXX

FROM: [Squadron]/CC

SUBJECT: No Contact Order

1. Order. It has come to my attention that you are under investigation for violations of the 

Uniform Code of Military Justice (UCMJ) Article ###, [Article Name]. To ensure the good 

order and discipline of this unit, you are hereby ordered:

Not to have any contact with [RANK/FULL NAME]. “Any contact” means just that—physical, 

verbal, telephonic, text message, e-mail, social media, etc. Additionally, you are ordered 

not to use another person to contact [RANK/FULL NAME] on your behalf. This order is not 

intended to prevent any counsel who may represent you in the future from preparing a 

defense, however, you are not to use any counsel as a means of contacting [RANK/FULL 

NAME] for personal communications on your behalf.

You are further ordered not to come within 100 feet of [RANK/FULL NAME] unless required 

by military duties and previously approved by me. Should you inadvertently encounter 

[RANK/FULL NAME] at any other location, you will immediately distance yourself by 100 

feet and report the inadvertent contact to your immediate supervisor.

2. Duration of Order. This order will remain in effect until ______________, unless this 

order is otherwise modified, extended or rescinded by me.

3. Relief from/Questions about Order. If you feel you need relief from this order at any time 

or if you have any questions regarding its provisions, call ___________ at __________ (DP) 

_____________, (HP) ________, (Cell/Pager #). If you are unable to reach __________, you 

may contact me at my office or through the Command Post at _________.

4. Consequences of Violating Order. Take note that violations of this order may result 

in adverse administrative action or punishment under the UCMJ, to include trial by 

court-martial.

5. Receipt/Understanding of Order. Acknowledge receipt and understanding below.

I.M. JUSTICE, Lt Col, USAF

Commander
416 The Military Commander and the Law

1st Ind to [Squadron]/CC, __________ (date), No Contact Order

MEMORANDUM FOR [Squadron]/CC

I understand and acknowledge receipt of this order on ____________________________.

XXXXX, [rank], USAF
417

Child Abuse, Child Neglect, and Spousal Abuse........................................................................418

Child Custody and the Military.........................................................................................................421

Family Member Misconduct..............................................................................................................425

Removal from Base Housing.............................................................................................................427

Air Force Child and Youth Programs (CYP)...................................................................................428

Summary Court Officers.....................................................................................................................430

Disposal of Personal Property...........................................................................................................433

CHAPTER EIGHT: PERSONNEL ISSUES FOR 

8

THE COMMANDER—FAMILY AND 

NEXT OF KIN
418 The Military Commander and the Law

CHILD ABUSE, CHILD NEGLECT, AND SPOUSAL ABUSE

It is Air Force policy to prevent or minimize the impact of child abuse, child neglect, and 

spousal abuse and their associated problems. To further this policy, the Air Force attempts 

to identify abuse and neglect, document such cases, assess the situation, and assist the 

family. Commanders should take administrative or judicial action in appropriate cases.

The Family Advocacy Program (FAP) is responsible for implementing this policy. The FAP 

enhances Air Force readiness by promoting family and community health and resilience. 

The FAP consists of prevention services, maltreatment intervention, and research and 

evaluation.

Reporting Maltreatment

- Notice of suspected abuse cases come from many sources: security forces blotter, 

commanders, co-workers, medical care providers, childcare providers, anonymous 

tips, etc.

- All Air Force personnel, military or civilian, have a duty to report all incidents of suspected family maltreatment to FAP. The identity of the person making the notification 

is kept confidential and is not released to the family allegedly involved.

- Report suspected cases to FAP and military law enforcement

- Adult victims of domestic abuse have two reporting options:

-- Unrestricted Reporting: Allows the victim to report an incident using the chain of 

command, law enforcement or AFOSI, and family advocacy for clinical intervention. Victims who choose to pursue an official command or criminal investigation 

of an incident should use these reporting channels.

-- Restricted Reporting: Allows the victim, who is eligible to receive military medical 

care, the option of reporting an incident of domestic abuse to specified individuals for the purpose of receiving medical care and other services without initiating the investigative process or notification to the victim’s or alleged offender’s 

commander

The Family Advocacy Committee

- The ultimate responsibility to implement the FAP rests with the installation commander. The medical treatment facility (MTF) commander is responsible for each of 

the three FAP components and chairs the family advocacy committee (FAC).
CHAPTER EIGHT Personnel Issues for the Commander—Family and Next of Kin 419

- Members of the FAC normally include: installation commander (or designee), MTF 

commander, the family advocacy officer (FAO), family advocacy outreach manager, 

Airmen and Family Readiness director, staff judge advocate (SJA) (or designee), 

security forces commander (or designee)(SFS), AFOSI detachment commander (or 

designee), chaplain, command chief master sergeant(CCC), Department of Defense 

Education Activity (DoDEA) representative, and representatives of local child protection agencies (optional)

Family Advocacy Officer

- The FAO manages the installation FAP and is a clinical social worker

- The FAO coordinates the central registry board (CRB) and chairs the clinical case 

staffing (CCS), outreach management prevention council (OPMC), child sexual maltreatment response team (CSMRT), high risk for violence response team (HRVRT), 

and the new parent support program (NPSP) case-staffing

The Central Registry Board

- The CRB is a multidisciplinary team that makes administrative determinations for 

suspected family maltreatment, to include which incidents require entry into the Air 

Force Central Registry database

- CRB meets at the call of the FAO, normally monthly. Membership is determined by 

the FAC, but should include: the chair (Installation Vice Commander), staff judge 

advocate (SJA), CCC, SFS, AFOSI, FAO, and other relevant agencies.

- Duties of the CRB Include:

-- Make incident status determinations (ISDs) on each allegation of maltreatment 

within 60 days of referral

-- Ensure involved adult family members, adult victims, and adult offenders receive 

notification of CRB ISDs

-- CRB discussions are confidential

- The unit commander of any member whose case will be discussed at the CRB should 

attend the CRB meeting for their member
420 The Military Commander and the Law

Child Sexual Maltreatment Response Team

- Membership includes the FAO, AFOSI representative, legal office representative, and 

other members appointed by the unit commander and approved by the FAC

- Goal of the team is to minimize risk and trauma to the victim and family and ensure 

coordinated decision making and case management

- The team is activated by the FAO immediately upon receipt of child sexual abuse 

allegations. The team coordinates a course of action by determining how organizations will proceed in making notifications, conducting interviews, scheduling medical exams, arranging for safety of the victim and family members, and conducting 

psychosocial assessments

High Risk For Violence Response Team

- Members include the FAO, FAP clinician working with the family, sponsor’s squadron 

commander, SJA, security forces representative, mental health clinic provider, AFOSI, 

victim advocate, and other agencies as appropriate

- The team is activated when there is a threat of immediate and serious harm to family 

members, unmarried intimate partners or FAP staff. The team addresses safety issues, 

risk factors, and develops and implements a management and tracking mechanism 

for high-risk individuals.

Child Neglect and Abandonment

- Most Air Force installations will have several cases each year of alleged child abuse or 

neglect through parental abandonment (i.e., leaving children alone in military family 

housing without adult supervision)

- Some installations have addressed this issue by having the FAC draft guidelines to 

assist parents in assessing whether a child is mature enough to be left unattended

- The FAC only proposes guidelines. Situations must be evaluated individually.

References

AFPD 40-3, Family Advocacy Program (6 December 2011)

AFI 40-301, Family Advocacy Program (16 November 2015)
CHAPTER EIGHT Personnel Issues for the Commander—Family and Next of Kin 421

CHILD CUSTODY AND THE MILITARY

Child custody laws vary from state to state, but generally employ a “best interest of the 

child” standard. Courts will usually look at many factors in determining the child’s best 

interests; rarely will one single variable be determinative. Military members who are 

faced with child custody disputes may be emotional and under substantial stress. They 

will likely need assistance in navigating state laws and court proceedings. In particular, 

they should know that both state and federal laws have been enacted to protect a service 

member’s custodial interests and ensure that absences dictated by military service will 

not be a sole factor in withholding custody.

State Jurisdiction

- The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which has 

been enacted by nearly all states and U.S. territories, limits jurisdiction in child custody 

cases to one state—the “home state.” As of January 22, 2016, the only state that has 

not adopted the UCCJEA is Massachusetts. Puerto Rico has also not adopted the Act.

-- The “home state” is defined as the state where the child has lived for 6 consecutive months (or since birth if the child is less than 6 months old) prior to the 

commencement of the custody proceedings

-- If the child has not lived in one state for at least 6 consecutive months, then 

jurisdiction lies with the state that has (1) “significant connections” with the child 

and at least one parent; and (2) “substantial evidence concerning the child’s care, 

protection, training and personal relationships.” If more than one state meets 

this criteria then the states must agree on the state that will assume jurisdiction.

--- Continuing Exclusive Jurisdiction: The state that makes the initial custody 

determination will maintain jurisdiction for modifications. If another state 

later has more “significant connections” with the child, the original state may 

relinquish jurisdiction.

--- Emergency Jurisdiction: A court in a state other than the “home state” may 

assume temporary jurisdiction when a child is (1) present in the state; and 

(2) has been abandoned or subjected to or threatened with mistreatment 

or abuse

--- Enforcement of Final Custody Orders: Prosecutors and law enforcement in 

any state, not just the “home state,” may utilize civil proceedings to enforce 

a custody order
422 The Military Commander and the Law

Best Interest of the Child Standard

- Courts will usually make custody decisions based primarily on the child’s and not 

the parents’ best interest. Factors the court may consider include, but are not limited 

to, the:

-- Degree of emotional attachment of the child to each parent

-- Child’s age, gender, and mental/emotional/social development

-- Child’s preference (for children ages 12-14 in most states)

-- Child’s comfort in his home, school, and community

-- Involvement of each parent

-- Physical, emotional, social, and financial stability of each parent

-- Willingness of each parent to cooperate with the other

-- History of domestic violence or child abuse

Deployment as a Factor in Determining Custody Arrangements

- A recent review of military child custody cases failed to reveal any instances where 

custody was determined solely based on the issue of deployment or the threat of 

deployment. Several laws were enacted that help ensure this remains the case:

-- Forty-eight (48) states have such laws, including ten (10) that have adopted the 

Uniform Law Commission’s Deployed Parents’ Visitation and Custody Act

-- The Servicemembers Civil Relief Act (SCRA) was also recently amended to limit 

a state court’s consideration of a member’s deployment as the sole factor in 

determining the best interest of the child, though it does not create a federal 

right of action

- The effects of deployment are often considered by the courts as one of the factors 

in determining the best interest of the child
CHAPTER EIGHT Personnel Issues for the Commander—Family and Next of Kin 423

Mobility as a Factor in Determining Custody Arrangements

- The impact that a change to a child’s environment (e.g., frequent PCS moves) has on 

a child’s well-being is also likely to be considered by individual judges and guardians 

ad litem in determining the best interest of the child

- Although each child will handle these disruptions differently and will need to be 

considered on an individual basis, a recent study concluded that frequent military 

moves do not typically have a negative impact on a child’s overall well-being

- Commanders should encourage members to take advantage of the many resources 

available to support military families, to include: child development centers, outdoor 

recreation and recreational sports leagues, religious services, Airman and Family 

Readiness Centers, military treatment facilities, and other base activities

-- Members may be able to point to the unique sub-culture and community support that can be found in the military when presenting their interests in a child 

custody proceeding

-- Members should also establish and keep current an effective Family Care Plan

Child Support

- Child support issues also fall under state law and are determined by state courts

- Each military service has regulations to require members to provide support to their 

dependents

-- AFI 36-2906, Personal Financial Responsibility, does not set forth a specific monetary guideline, but requires that military members “[p]rovide adequate financial 

support” for dependents for whom the member receives additional allowances

--- “Adequate financial support” includes in-kind support such as payment of 

rent, insurance, childcare, or subsistence

--- Military members who are going through a divorce or custody determination 

should document the support believed to be provided

--- Spouses may seek assistance from a member’s commander, IG, or legal office 

if the member is not providing adequate support
424 The Military Commander and the Law

References

Servicemembers Civil Relief Act, 50 U.S.C. §§ 3938, et seq.

Uniform Child Custody Jurisdiction and Enforcement Act (citation varies by state) 

AFI 36-2906, Personal Financial Responsibility (30 May 2013)
CHAPTER EIGHT Personnel Issues for the Commander—Family and Next of Kin 425

FAMILY MEMBER MISCONDUCT

Installation commanders are often called upon to resolve difficult problems arising from 

family member misconduct. The installation commander is responsible for maintaining 

good order and discipline and protecting Air Force resources, yet has little authority when 

it comes to punishing civilians in general, and family members in particular. Nonetheless, 

there are certain actions available to address family member misconduct.

Commander Responsibilities and Options

- Administrative Actions:

-- Suspend or revoke privileges

--- Driving suspension may be mandatory in certain circumstances (e.g., drunk 

driving)

--- Base Exchange (BX)/Commissary

--- Morale, Welfare, and Recreation (MWR) facilities

--- Commercial solicitation

-- Terminate military family housing

--- Requires 30-days written notice

--- Air Force pays for the move, but partial dislocation allowance is not payable

-- Debarment

--- 18 U.S.C. § 1382 makes it a crime to enter the installation after previously 

being debarred

--- Debarment should be in writing, setting forth the specific reasons for debarment. Debarment may be indefinite, but set time limits are recommended.

--- Must still provide access to medical treatment if authorized and available
426 The Military Commander and the Law

- Criminal Actions:

-- Criminal actions depend upon the jurisdiction of the base

-- If the base is under exclusive federal jurisdiction, family members may be prosecuted in federal magistrate court. This is a federal prosecution and potential 

conviction.

-- If the base has concurrent jurisdiction, either federal court or state court may 

be the proper forum for prosecuting family members. Several states are very 

possessive of their jurisdiction over juveniles. Refer this issue to your staff judge 

advocate. Some bases have negotiated memoranda of understanding with state 

juvenile authorities to determine prosecution of such cases.

-- If the base has only proprietary jurisdiction, the state retains the authority to 

prosecute family member misconduct (involving only state crimes) occurring on 

the installation. Any family member misconduct should be referred to the local 

authorities for prosecution.

-- Some installations have established programs for handling juvenile misconduct. 

Often called Juvenile Correction Boards, these boards consider juvenile cases and 

recommend to the commander how to handle the matter.

References

18 U.S.C. § 1382

DoDI 6055.04, DoD Traffic Safety Program (20 April 2009), incorporating through Change 2, 

23 January 2013

AFI 31-218(IP), Motor Vehicle Traffic Supervision (22 May 2006)

AFI 32-6001, Family Housing Management (21 August 2006), incorporating through Change 5, 

3 September 2015

AFI 36-3026(IP), Identification Cards for Members of the Uniformed Services, Their Eligible

Family Members, and Other Eligible Personnel (17 June 2009), administrative changes 

2 November 2009

AFI 51-905, Use of Magistrate Judges for Trial of Misdemeanors Committed by Civilians

(30 September 2014)
CHAPTER EIGHT Personnel Issues for the Commander—Family and Next of Kin 427

REMOVAL FROM BASE HOUSING

The Air Force prefers that military personnel retain their assigned family housing for the

duration of their tour at the installation unless there are reasons that justify termination.

Termination from Base Housing

- Military personnel may be required to terminate occupancy of family housing when:

-- The conduct or behavior of the member or dependent family member is contrary 

to accepted standards or is adverse to military discipline

-- The member or dependent family members are responsible for willful, malicious, 

or negligent abuse or destruction of property

-- The member fails to comply with the Air Force family child care program

- Cases involving early termination must be fully documented and should be retained 

on file for a minimum of 1 year

- An involuntary move from military family housing is at government expense; however, partial dislocation allowance is not payable

- Commanders are authorized to terminate housing for the above reasons with 30-days 

written notice to the member. Basic due process probably requires allowing the 

member the right to respond (orally or in writing) before the commander makes 

his/her decision.

Reference

AFI 32-6001, Family Housing Management (21 August 2006), incorporating through Change 5, 

3 September 2015
428 The Military Commander and the Law

AIR FORCE CHILD AND YOUTH PROGRAMS (CYP)

Installation commanders are required to mandate appropriate facilities, funding, and 

manpower to operate the CYP on their installation. The goal of the CYP is to assist DoD 

personnel in balancing duty and family life obligations by providing family services for 

youths from birth to 18 years of age. These services take the form of child development 

centers (CDC), family child care (FCC) homes, school age care (SAC), and youth programs.

Eligibility

- CYP services are available to youths whose sponsor qualifies as:

-- Active duty military and Coast Guard members

-- DoD civilian employee

-- Air National Guard or Reserve member on active duty orders or inactive duty 

training status

-- Certain combat related wounded warriors, surviving spouses, and loco parentis 

guardians of youths that would otherwise be eligible 

-- DoD contractors with specific contractual eligibility

- CYP services may be available to those who do not qualify for the above categories 

on a case-by-case and space-available basis

-- Space-available patrons must make way when space is needed for the above 

listed groups

CYP Child Care Options

- CDC: Provides care to children from 6 weeks to 5 years of age within an on-base facility

- SAC: Provides care to children from 5 through 12 years of age within an on-base 

facility (sometimes housed in the CDC facility)

- FCC: Provides care to children from 2 weeks to 12 years of age in private, FCC certified 

and regulated home-care facilities
CHAPTER EIGHT Personnel Issues for the Commander—Family and Next of Kin 429

-- All on-installation childcare is subject to regulation by AFI 34-144, Child and Youth 

Programs, and must be certified by the installation MSG commander 

-- Uncertified, regular (more than 10 hours per week), on-installation childcare 

will be investigated by the installation Force Support Squadron (FSS) and may 

be subject to revocation of on-base housing rights, debarment, and/or criminal 

prosecution

Reference

AFI 34-144, Child and Youth Programs (2 March 2016)
430 The Military Commander and the Law

SUMMARY COURT OFFICERS

For deceased active duty Air Force members (and other entitled individuals), the Air Force

collects, safeguards, and promptly disposes of their personal property and personal 

effects. The installation commander appoints a summary court officer (SCO) to perform 

these duties in accordance with AFI 34-511, Disposition of Personal Property and Effects. 

For deceased DoD civilians, see AFI 34-511, para. 4.4, and AFI 36-809, Civilian Survivor 

Assistance.

Definitions

- Personal Effects: Any personal item, organizational clothing, or equipment physically located on or with the remains. Some examples of personal effects include 

eyeglasses, jewelry, wallets, insignia, and clothing.

- Personal Property: All of the other personal possessions of the decedent. Some 

examples of personal property include household goods, mail, personal papers, and 

privately owned vehicles. Personal property does not include real property except 

for any debts associated with real property.

Prioritized List of Recipients to Receive Personal Property and Personal Effects

- Surviving spouse or person designated by spouse

- Children in order of age. If the recipient is a minor, forward the property as instructed 

by the minor’s surviving parent, guardian or adopting parent.

- Parents in order of age. If parents divorced or legally separated while the deceased 

was a minor, then the recipient is the custodial parent.

- Siblings in order of age

- Next of kin of the deceased

- A beneficiary named in the will of the deceased

Handling and Disposing

- Personal Effects:

-- Mortuary officer (MO) inventories, cleans, and secures the personal effects
CHAPTER EIGHT Personnel Issues for the Commander—Family and Next of Kin 431

-- SCO collects and disposes of any organizational clothing and equipment

-- Once the MO ensures the authorized recipient has been officially notified of the 

death, the MO asks the authorized recipient to provide instructions for disposing 

of the personal effects

-- MO may only destroy personal effects after receiving written authorization by 

the authorized recipient

- Personal Property – the SCO:

-- Obtains property disposition instructions and the name and contact information 

of the authorized recipient from the MO

-- Corresponds with the authorized recipient

-- Places at least two death announcements in the base bulletin and/or newspaper 

asking anyone with a claim for or against the estate to step forward

-- Inventories all property on DD Form 1076, Record of Personal Effects of Deceased 

Personnel

-- Promptly gathers the uniform/clothes needed for burial and gives to the MO

-- Removes any questionable items and determines the disposition of this property 

based on criteria in AFI 34-511, para. 3.2.4

-- Properly disposes of military ID cards, documents, mail, and personal papers

-- Properly disposes of funds and negotiable instruments

-- Properly ships and stores items

-- Properly disposes of property in situations when an authorized recipient is not 

found

-- Closes the summary court file

- The legal office provides guidance to the SCO on disposition of personal property 

and reviews the summary court file for legal sufficiency
432 The Military Commander and the Law

References

10 U.S.C. § 9712

DoDD 1300.22, Mortuary Affairs Policy (30 October 2015)

AFI 34-511, Disposition of Personal Property and Effects (21 April 2016)

AFI 36-809, Civilian Survivor Assistance (15 April 2015)

AFI 36-3002, Casualty Services (22 February 2010), certified current 8 February 2012

DD Form 1076, Record of Personal Effects of Deceased (August 2015)
CHAPTER EIGHT Personnel Issues for the Commander—Family and Next of Kin 433

DISPOSAL OF PERSONAL PROPERTY

Personal property of Air Force members and employees, as well as residents and visitors 

on Air Force installations, can come into the custody or control of the Air Force for a variety of reasons: death, capture, missing in action, incompetency, absence without leave, 

desertion, medical evacuation, loss, abandonment, or a failure to claim. The Secretary 

of the Air Force (SecAF) is authorized to dispose of such property pursuant to 10 U.S.C. 

sections 2575 and 9712.

Special procedures are established in AFI 34-501, Mortuary Affairs Program for the disposition of property of deceased, missing, captured, or detained members, including a 

detailed method for determining the next of kin entitled to receive the property.

For Deceased Members

- A base mortuary officer (MO) is responsible for collecting, cleaning, inventorying, 

and safeguarding property until the appointment of the summary court officer (SCO)

- An SCO is normally appointed by the installation commander to continue to collect, 

inventory, and safeguard the property. The SCO will also dispose of the property.

For Missing, Detained, and Captured Persons

- MO secures and holds the property for 30 days or until the member’s status is changed 

from missing to detained or captured

- If either (1) the missing member’s status is changed to detained or captured, or (2) 

there is no change in status after 30 days, then the property is released to the SCO

- If the missing member returns, the property is released to the member

- SCO secures, inventories, and disposes of the property to those authorized to receive 

it in the event of the member’s death
434 The Military Commander and the Law

References

10 U.S.C. § 2575

10 U.S.C. § 9712

AFI 34-501, Mortuary Affairs Program (18 August 2015)

AFI 34-511, Disposition of Personal Property and Effects (21 April 2016)

AFI 34-1101, Warrior and Survivor Care (6 May 2015), including AFI34-1101_AFGM2015-01, 

27 August 2015
435

Overview of Legal Assistance Program.........................................................................................436

Notaries.....................................................................................................................................................440

Wills and Powers of Attorney ............................................................................................................443

Tax Assistance Program.......................................................................................................................447

CHAPTER NINE: LEGAL ASSISTANCE

9
436 The Military Commander and the Law

OVERVIEW OF LEGAL ASSISTANCE PROGRAM

The armed services may, in accordance with 10 U.S.C. § 1044, provide legal assistance 

to eligible beneficiaries concerning personal, civil legal problems. The Air Force’s Legal 

Assistance Program is governed by AFI 51-504, Legal Assistance, Notary, and Preventive 

Law Programs, which directs local staff judge advocates (SJAs) to make every effort to 

satisfy all legal assistance needs, within the scope of the program and contingent on 

available resources and expertise. A priority is given to solving mobilization/deployment 

related legal issues−that is, a member’s legal issues, regardless of the subject, that could 

negatively affect command readiness.

Eligibility for Legal Assistance

- The following individuals are eligible for legal assistance services:

-- Active duty members, including reservists and guardsmen on federal active duty 

under Title 10 of the U.S. Code, and their dependents who are entitled to an ID card

-- Air Reserve component members performing Active Guard/Reserve (AGR) tours

-- Members of reserve components (not otherwise covered following release from 

active duty) under a call or order to active duty for more than 30 days for a period 

of time equal to twice the length of order to active duty. Dependents entitled to 

an ID card are eligible during the same time period.

-- Officers of the commissioned corps of the Public Health Service

-- Retirees and their dependents entitled to an ID card

-- Civilian employees stationed outside the United States and its territories and their 

family members who are entitled to an ID card and reside with them outside the 

continental United States (OCONUS)

-- Reservists and National Guard not on Title 10 status, but subject to federal mobilization in an inactive status, are eligible for only mobility/deployment related 

legal assistance

-- DoD civilian employees and contractors deploying to or in a theater of operations 

for contingencies or emergencies shall be furnished assistance with wills and 

powers of attorney in accordance with DoDI 1400.32, DoD Civilian Work Force 

Contingency and Emergency Planning Guidelines and Procedures
CHAPTER NINE Legal Assistance 437

-- DoD civilian employees assigned OCONUS and their dependents

-- Foreign military personnel may be provided legal assistance in limited circumstances for specific matters

-- Matters relating to the settlement of estates of service members who die on 

active duty or as a result of an injury or disability that resulted in retirement from 

active duty; or to the primary next of kin

Legal Assistance Services Provided

- The following legal services may be provided as resources and expertise permit:

-- Wills, living wills, powers of attorney, and notary services

-- Adoptions

-- Domestic relations

-- Servicemembers Civil Relief Act (SCRA) and veterans’ reemployment rights issues

-- Casualty affairs

-- Dependent care issues, including family care plans

-- Financial responsibilities

-- Landlord-tenant and lease issues, including privatized housing

-- Consumer affairs

-- Immigration/citizenship issues

-- Tax assistance

-- Victims of crime

-- Other issues deemed connected with personal, civil legal affairs by The Judge 

Advocate General (TJAG), the MAJCOM SJA, the NAF SJA, the base SJA, or the 

commander
438 The Military Commander and the Law

- Referral: Due to the scope and limitations of the program, as well as the particular 

needs of the client, the legal office may refer clients to other sources, such as a civilian 

attorney (through the local bar referral service), the area defense counsel, chaplain, 

equal opportunity (EO) counselor, military personnel flight, family advocacy, the 

family support center, or available free or “pro bono” legal services

Preventive Law

- Each base will have a program to educate members on legal issues, with a focus on 

educating members on preparing for mobilization, seeking timely legal advice, the 

consequences of signing legal documents, and maintaining vigilance to identify and 

avoid legal scams

- Education programs are designed to allow Airmen to focus on mission requirements 

and reduce the time and resources needed to correct legal problems that occur

Matters Specifically Outside the Scope of the Program

- The following are specifically outside the scope of legal assistance:

-- Business or commercial enterprises, except in relation to the SCRA

-- Criminal issues

-- Standards of ethical conduct issues

-- Law of armed conflict issues

-- Official matters in which the Air Force has an interest, e.g., reports of survey

-- Legal issues raised on behalf of another person

-- Private organizations

-- Representation in a civilian court or administrative proceeding

-- Drafting or reviewing real estate sales or closing documents, separation agreements, divorce decrees, or inter vivos trusts unless the SJA determines an individual attorney within the office has the expertise to do so
CHAPTER NINE Legal Assistance 439

Attorney-Client Relationship

- Legal assistance establishes an attorney-client relationship and, as such, any information or documents received from or relating to a client are considered privileged and 

confidential

-- Privileged information may be released only with the client’s express permission, 

pursuant to a court order, or as otherwise permitted by the Air Force Rules of 

Professional Responsibility

-- Disclosure may not be lawfully ordered by any superior military authority

- If a commander is contacted by a legal assistance attorney on behalf of a client, e.g., 

regarding a member’s failure to provide financial support to family members, the 

commander should understand the attorney is representing the interests of that 

particular client

-- The commander should contact the SJA, who represents the interests of the Air 

Force, for advice concerning the matter

References

The Servicemembers Civil Relief Act, 50 U.S.C. §§ 3901, et seq. 

10 U.S.C. §§ 1044, 1044e

DoDI 1400.32, DoD Civilian Work Force Contingency and Emergency Planning Guidelines and 

Procedures (24 April 1995)

AFPD 51-5, Military Legal Affairs (27 September 1993) 

AFI 51-504, Legal Assistance, Notary, and Preventive Law Programs (27 October 2003), 

incorporating through Change 3, 24 May 2012
440 The Military Commander and the Law

NOTARIES

Many important documents are required by law to be notarized. Notarization demonstrates that a person with notary authority—that is, a notary public—confirmed the 

identity of the person signing the document and witnessed the signature. It can also 

confirm, if required, that the person made an oath as part of executing the document. 

Notary services are available to eligible personnel, under Title 10 of the U.S. Code, as part 

of the military legal assistance program.

Eligibility for Air Force Notary Service

- Personnel eligible for military notary services are:

-- Members of the armed forces

-- Other persons eligible for legal assistance under 10 U.S.C. § 1044 or other regulations of the DoD, to include AFI 51-504, Legal Assistance, Notary, and Preventive 

Law Programs

-- Persons serving with, employed by, or accompanying the armed forces outside 

the United States, Puerto Rico, Guam, and the Virgin Islands

-- Other persons subject to the UCMJ outside the United States

Persons with Notary Authority

- Under 10 U.S.C. § 1044a and AFI 51-504, the following individuals have the general 

powers of a notary public and of a consul of the United States in the performance 

of all notary acts:

-- Judge advocates on active duty

-- Reserve judge advocates at all times, not just when in a duty status

-- Civilian attorneys serving as legal assistance attorneys; although other civilian 

employees may be designated to serve as a notary public, 10 U.S.C. § 1044a does 

not cover such designations and these employees must be qualified under state 

law

-- Adjutants, assistant adjutants, and personnel adjutants, including reserve members when not in a duty status
CHAPTER NINE Legal Assistance 441

-- Enlisted paralegals on active duty or those reserve component members performing inactive duty training, who have received proper training

-- Commissioned officers or master sergeant and above stationed at geographically separated units (GSUs) or remote locations where no judge advocate or 

paralegal notary is assigned, and who have been designated in writing by the 

GSU’s servicing general court-martial convening authority’s staff judge advocate 

and received proper training

Special Rules for Certain Military Instruments

- 10 U.S.C. §§ 1044b, 1044c, and 1044d provide for the execution of military powers 

of attorney, military advance medical directives (commonly referred to as a “living 

will”), and military testamentary instruments (commonly referred to as a “will”). These 

documents:

-- Are exempt from any requirement of form, formality, or recording that is required 

under the laws of a state

--- Military powers of attorney and advance medical directives, but not wills, are 

also exempt from any state requirements of substance

-- Shall be given the same legal effect as powers of attorney, living wills, and wills 

prepared and executed in accordance with the laws of the state concerned. 

Military advance medical directives are not enforceable in states that otherwise 

do not recognize living wills.

- All other documents, notarized under the authority of 10 U.S.C. § 1044a, are subject 

to state law as to form, substance, formality or recording

Notary Procedures and Guidelines

- Personnel signing documents as a notary public under 10 U.S.C. § 1044a must:

-- Specify date, location, title, and office

-- Use an inked stamp or a raised seal that contains a cite to 10 U.S.C. § 1044a and 

the identifiers “U.S. Air Force” and “Judge Advocate”

-- Verify the identity of each person whose signature is to be notarized, usually 

with a military ID card
442 The Military Commander and the Law

-- Administer an oath, in accordance with the rules of AFI 51-504 and Title 10 for 

any “sworn” document

-- Maintain a personal notary log as proof of each notarial act performed, to include 

each signer’s name and signature, type of document, date, and location. These 

logs will be maintained according to AFI 51-504 and/or applicable state law.

- Personnel signing documents as a notary under 10 U.S.C. § 1044a must NOT:

-- Notarize incomplete documents

-- Accept any fee for the performance of a notarial act

-- Certify a document as a “true and accurate copy” unless they are the custodian 

of the original. To certify a document as a “true and accurate copy” is to verify the 

document’s authenticity and carries specific legal effect that only the creator or 

the custodian of the original document can provide.

References

10 U.S.C. §§ 1044, 1044a-d

AFI 51-504, Legal Assistance, Notary and Preventative Law Programs (27 October 2003), 

incorporating through Change 3, 24 May 2012
CHAPTER NINE Legal Assistance 443

WILLS AND POWERS OF ATTORNEY

Wills and powers of attorney (POAs) are useful legal documents for members to manage 

their personal and financial affairs. A will is an instrument by which a person, known as 

a “testator,” makes a disposition of his property to take effect after his death. A POA is a 

document by which a person conveys to another person the authority to handle specified 

affairs. Commanders should emphasize the importance of preparing wills and POAs, 

especially prior to deployment.

Wills

- Though it must be a free and voluntary act by the service member, ALL Airmen 

should be encouraged to make a will

- Even if a testator has little property, settling affairs with a will is often easier for the 

family. For instance, many states have “family probate” laws that allow a spouse to 

probate a valid will without a lawyer and with minimal expense.

- A will is particularly important for the following:

-- Personnel with minor children

--- The court will generally follow the designation of a guardian for the children 

in a will, which often prevents indecision and family disputes about who will 

care for orphaned children

--- Personnel with special needs children require expert estate planning advice 

to ensure the children are properly cared for and do not get removed from 

government programs

-- Personnel with extensive or certain valuable property

-- Personnel in a subsequent marriage or with blended families where either spouse 

comes to the marriage with children from a prior relationship

- State law dictates the requirements for making a valid will; these laws vary widely 

from state to state. For this reason, members should seek the services of the base 

legal office and avoid “do-it-yourself” wills. In some cases, the member may even be 

referred to an outside expert.

- If a member dies without a will, his property will be distributed according to state law
444 The Military Commander and the Law

-- Under most state laws, property will only pass to blood relatives and not to inlaws or stepchildren

-- Property is generally transferred in the following order of precedence: surviving 

spouse, children, parents, and then siblings

-- Some states divide property between the surviving spouse and children, and 

some states allow minor children to receive property

-- Normally, a state will only receive the property if there are no surviving relatives

-- Members, rather than state law, can determine what happens to their estate by 

creating a valid will

- A will remains in effect until changed or revoked by the testator

- Certain life events may impact provisions in a testator’s will, such that it would be 

advisable to amend the will. A testator should review his will periodically and consider 

updating it, especially with:

-- The birth or death of any person affected by the will

-- The marriage or divorce of the testator

-- A substantial change in the testator’s estate

Powers of Attorney

- A POA is a document that allows someone else to act as your legal agent, or “attorneyin-fact.” These documents are available at all base legal offices and can be particularly 

important for mobilizing personnel.

- POAs are only useful, though, if third parties, e.g., banks and businesses, are willing 

to accept the authority granted therein; third parties may or may not accept a POA 

at their discretion. Therefore, it is usually best to tailor the POA to the given situation.

- In order to perform the requested actions, the attorney-in-fact will hold the original, 

executed POA, which inherently creates some risk of abuse. Personnel should carefully choose the person to whom they grant authority.

- To revoke a POA before its expiration, personnel may retrieve the original document 

and destroy it, or execute a revocation of POA and give a copy to any person that 

might deal with the person who has the original POA
CHAPTER NINE Legal Assistance 445

- There are several types of POAs, as described below:

-- General POA:

--- Gives comprehensive authority over virtually all legal and some non-legal 

affairs. Basically, the attorney-in-fact can do any and all things the grantor 

could do.

--- Because the authority granted is so expansive, this type of POA should only be 

used if a special POA will not suffice and if the agent is completely trustworthy

--- A person with a general POA, who is not trustworthy, has the ability to cause 

serious financial or legal problems for the grantor

--- Many banks and realtors will not accept a general POA for the purchase or 

sale of real estate and instead require a special POA containing the legal 

description of the property and the actions authorized

-- Special POA:

--- Grants limited authority to accomplish specific transactions, such as buying/

selling real estate or a car, usually for a limited time period

-- Durable POA:

--- Takes effect upon, or is still effective notwithstanding, a person’s medical 

incapacity and designates another person to make decisions on behalf of 

the incapacitated person

--- A general or special POA may be made “durable” with appropriate language

--- Allows the attorney-in-fact to make decisions and manage the affairs for the 

incapacitated person for the duration of the incapacity

--- The authority may extend to decisions for medical purposes, including a 

decision regarding terminating or limiting medical care in appropriate cases

--- Generally eliminates the need for a court to establish a guardian and conservator for the incapacitated person
446 The Military Commander and the Law

Military POAs and Wills

- 10 U.S.C. §§ 1044b, 1044c, and 1044d, respectively, provide for the execution of 

military POAs, military advance medical directives, known as “living wills,” and military testamentary instruments or “wills.” These documents, though executed by the 

military, will be given the same legal effect as documents prepared and executed in 

accordance with the laws of the state concerned. These military documents:

-- Are exempt from any requirement of form, formality, or recording that is required 

under the laws of a state

-- Military POAs and living wills, but not wills, are exempt from any state requirements of substance

-- Military living wills are not enforceable in states that do not recognize living wills

References

10 U.S.C. §§ 1044b-d

DoDD 1350.4, Legal Assistance Matters (28 April 2001), incorporating Change 1, 13 June 2001, 

certified current 1 December 2003

AFI 51-504, Legal Assistance, Notary and Preventive Law Programs (27 October 2003), 

incorporating through Change 3, 24 May 2012
CHAPTER NINE Legal Assistance 447

TAX ASSISTANCE PROGRAM

Air Force Tax Assistance programs are command programs designed, in compliance 

with Internal Revenue Service (IRS) Standards of Conduct, to provide free tax assistance 

and filing services to eligible beneficiaries. Resourced and managed properly, a healthy 

program will enhance morale and help beneficiaries address some of the unique income 

tax aspects associated with military service. The size and scope of each program may 

vary from base to base, depending on mission requirements, geographical location, 

availability of resources, and the unique needs of the local community.

Scope

- The installation commander, in consultation with the staff judge advocate (SJA), has 

the flexibility to decide, based on the needs of the installation and available resources, 

which of the following programs is best, including a “hybrid” approach. This also 

includes the option not to have an installation tax program, if circumstances warrant.

-- Traditional On-Base Tax Assistance Program:

--- These “full service” programs are supervised by the SJA and staffed by legal 

office personnel, as well as base volunteers, under the IRS’ Volunteer Income 

Tax Assistance (VITA) program

--- Tax assistance personnel are trained by and use the IRS’ electronic filing 

resources

--- Tax Assistance programs are separate and distinct from the Legal Assistance 

program; attorney-client privilege does not apply to the preparation of 

income tax returns

-- Self-Service Kiosks:

--- If resources are limited, a smaller team of volunteers can be trained to assist 

personnel in filing their taxes with the Military One Source (MOS) web site 

at available kiosks

-- Referrals to Other Free Tax Preparation Services:

--- Without endorsing any one non-federal service, the base legal office will take 

the lead in publicizing off-base and electronic tax assistance options, such 

as the IRS Free File Alliance
448 The Military Commander and the Law

Decisional Factors

- When deciding which program to support—or not to host a tax program—

commanders and their SJAs should consider the following factors which may 

impact the availability of the program, such as:

-- Competing mission requirements

-- Availability of local volunteer support

-- Availability of IRS software and training support

-- The negative impacts to program continuity (e.g., loss of future IRS support, loss 

of future volunteer support, loss of institutional knowledge) should the installation want to continue the program at a later date

-- Budgetary constraints

-- Impact on morale

-- Demand for tax services

-- Availability of free online filing services and other nearby VITA programs accessible for all beneficiaries

-- Availability of other professional filing services near the installation

-- Additionally, commanders and SJAs for commands serving in a host or supporting role on joint bases are advised to review support agreements for any 

provisions regarding the tax program

Eligible Beneficiaries

- Eligible beneficiaries are those entitled to legal assistance under 10 U.S.C. § 1044 

and AFI 51-504, Legal Assistance, Notary, and Preventive Law Programs. However, in 

consultation with commanders, SJAs can further limit eligible beneficiaries for the 

tax program (e.g., personnel E-6 and below).

- SJAs may also extend services, as resources allow, to federal civilian employees. Federal civilian employees must adhere to applicable rules concerning use and allotting 

of their time when they seek tax assistance services.
CHAPTER NINE Legal Assistance 449

References

10 U.S.C. § 1044

AFI 51-504, Legal Assistance, Notary and Preventative Law Programs (27 October 2003), 

incorporating through Change 3, 24 May 2012
450 The Military Commander and the Law
451

Equal Opportunity and Treatment..................................................................................................452

Prohibition on Sexual Harassment..................................................................................................459

The Inspector General Complaints Resolution Process...........................................................469

Political Activities by Air Force Members......................................................................................476

Membership and Participation in Hate Groups..........................................................................480

Extremist Activities...............................................................................................................................482

Servicemembers Civil Relief Act (SCRA)........................................................................................486

Uniformed Services Employment and Reemployment Rights Act (USERRA) .................490

Uniformed Services Former Spouses’ Protection Act (USFSPA)............................................494

Ensuring the Fair Handling of Debt Complaints Against Service Members....................501

CHAPTER TEN: CIVIL LAW RIGHTS AND 

10

PROTECTIONS OF MILITARY PERSONNEL
452 The Military Commander and the Law

EQUAL OPPORTUNITY AND TREATMENT

The federal government has enacted many statutes to ensure equal opportunity (EO). 

Almost all of these statutes apply exclusively to civilian employees as victims; they do not 

cover military members as victims. However, the DoD and Air Force anti-discriminatory 

policies protect both military members and civilian employees through a bifurcated 

system. The primary difference in this bifurcated system is that military members are limited to presenting their complaints to forums within the executive department. Civilian 

employees, on the other hand, have the right to file a complaint before an independent 

federal court after exhausting administrative remedies within the executive department.

- The following are key EO statutes:

-- Title VII of the Civil Rights Act of 1964

-- Equal Employment Opportunity Act of 1972

-- The Rehabilitation Act of 1973

-- The 1978 Amendments to the Age Discrimination in Employment Act

-- The Civil Rights Act of 1991

Civil Rights Act of 1964

- The Civil Rights Act of 1964 is the most important single source of anti-discrimination 

law in this country

- Title VII of the act forbids illegal employment discrimination on the basis of race, 

creed, color, religion, national origin, and gender

Equal Employment Opportunity Act of 1972

- The Equal Employment Opportunity Act of 1972 made Title VII of the Civil Rights 

Act of 1964 applicable to the federal work force; however, the term “employee” only 

applies to federal civilian employees as victims

- The law does not apply to military members as victims

Rehabilitation Act of 1973

- The Rehabilitation Act of 1973 prohibits employment discrimination against handicapped individuals within the federal government
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 453

- The law does not apply to military members as victims

- The Americans With Disabilities Act (ADA) of 1990 is the private sector counterpart 

to the Rehabilitation Act, but it does not apply to the federal government

1978 Amendments to the Age Discrimination in Employment Act

- The 1978 Amendments to the Age Discrimination in Employment Act forbids illegal 

discrimination on the basis of age for people over 40 years old

- The law applies to civilian employees as victims

- The law does not apply to military members as victims

Civil Rights Act of 1991

- The Civil Rights Act of 1991 amended Title VII of the Civil Rights Act of 1964 to expand 

remedies available to victims of discrimination

- Compensatory damages (e.g., pain and suffering, emotional distress) awards up to 

$300,000 are allowed for a violation of Title VII

- The law does not apply to military members as victims

- Monetary judgments or settlements made during the “administrative phase” are 

payable from the local base operations and maintenance (O&M) funds

Air Force Policy

- Air Force policy is to conduct its affairs free from unlawful, arbitrary discrimination 

or sexual harassment, and to provide equal opportunity and treatment irrespective 

of race, color, religion, national origin, or sex

- Commanders are required to immediately conduct a commander-directed investigation (CDI) when an employee files a complaint of discrimination based on sexual 

harassment. This applies equally to both military members and civilians.

- Commanders must take appropriate administrative or disciplinary action to eliminate 

or neutralize discrimination and its effects
454 The Military Commander and the Law

Air Force Equal Opportunity Program

- AFI 36-2706, Equal Opportunity Program Military and Civilian, chs. 4 and 5, set out 

the Air Force Military Equal Opportunity program for processing both informal and 

formal discrimination complaints made by military members

-- Military members are limited to presenting administrative complaints of discrimination, which when substantiated are addressed through command action; they 

cannot bring a civil action against the government for employment discrimination and they cannot receive any kind of monetary damages normally available 

for civilians in the same situation

-- Air Force policy is clear: “Zero tolerance” of any kind of unlawful discrimination 

against military members on the basis of race, creed, color, religion, national 

origin or gender

-- Discrimination can be generally defined as any action that unlawfully or unjustly 

results in unequal treatment on the basis of race, creed, color, religion, national 

origin or gender, and the distinctions are not supported by legal or rational 

considerations

-- Such discrimination includes, but is not limited to:

--- Insults, printed materials, visual materials, signs, symbols, posters, or insignias that infer negative statements pertaining to protected status (e.g., race, 

religion)

--- Personal discrimination to bar or deprive a person of a right or benefit

--- Sexual harassment

--- Institutional practices that deprive a person or group of a right or benefit

-- The military equal opportunity (MEO) office is the office of primary responsibility 

(OPR) for the Air Force EO program and handles almost all informal and formal 

complaints of discrimination brought by military members

-- Exceptions include instances involving criminal misconduct investigated by base 

law enforcement authorities, and military EO complaints against senior officials, 

consisting of officers in the grade of O-7 select and above, Air National Guard 

colonels with a certificate of eligibility, and members of the senior executive 

service, which are investigated by the inspector general (IG)
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 455

Installation Commander’s Responsibilities

- Provide an environment free from unlawful discrimination and sexual harassment

- Develop policies to prevent unlawful discrimination and sexual harassment and 

ensure those policies are prominently posted in locations and areas frequented by 

the base population

- Communicate the importance of the relationship of unlawful discrimination and 

sexual harassment prevention to readiness and a professional climate

- Ensure military and civilian personnel attend human relations education as required

- Direct the assessment of the installation human relations climate through the installation climate assessment committee

- Ensure appropriate disciplinary and corrective actions are taken if unlawful discrimination or reprisal is substantiated

- Review all closed EO cases on a monthly basis

- Ensure rating and reviewing officials evaluate compliance with directives prohibiting 

unlawful discrimination and sexual harassment and document serious or repeated 

deviations

- Decide first-level appeals of formal complaints of discrimination

Unit Commander’s Responsibilities

- Inform unit members of the right to file EO complaints without fear of reprisal

- Inform members through briefings and EO policy memoranda that unlawful discrimination and sexual harassment will not be tolerated and that appropriate disciplinary and corrective action will be taken if unlawful discrimination or reprisal is 

substantiated

- At a minimum, provide MEO the demographics of participants and action taken on 

all EO allegations investigated within the unit

- Investigate allegations of unlawful discrimination or sexual harassment when the 

complainant has elected not to file with the MEO office
456 The Military Commander and the Law

-- Appoint an EO specialist to serve as a subject matter expert (SME) and be consulted on any report per AFI 36-2706, para. 1.23.14

- Take action to end unlawful discrimination or sexual harassment when a formal MEO 

complaint/incident is substantiated

- Enforce EO policy in a fair, impartial, and prompt manner

- Ensure rating and evaluating officials evaluate compliance with EO directives and 

document repeated or serious violations

- Inform alleged offender(s) they are the subject of a formal MEO complaint, ensure 

they are cautioned against taking reprisal or other retaliatory actions, and ensure 

they are briefed on the outcome of the MEO case when it is closed and advise on 

their right to appeal

- Accomplish unit climate assessments

Complaint Processing Procedures

- MEO serves as the focal point for complaints of discrimination brought by military 

members, but the nature of the complaint will determine which agency conducts 

the investigation

-- Military EO complaints against senior officials, consisting of officers in the grade 

of O-7 select and above, Air National Guard colonels with a certificate of eligibility, 

and members of the senior executive service, must be immediately referred to 

SAF/IGS

--- EO must notify the installation commander and local IG when there is a 

military EO complaint against an officer in the grade of O-6, an officer who 

has been selected for O-6, or a civil service employee in the grade of GS-15, 

and the installation commander must notify MAJCOM/IGQ and SAF/IGQ of 

such complaints

- Complaints involving criminal activity such as assault, rape, or child abuse must 

be immediately referred to the Air Force Office of Special Investigations (AFOSI) or 

Security Forces Squadron. In cases of sexual assault, the EO specialist will also notify 

the Sexual Assault Response Coordinator (SARC).

- Complainants may elect to use informal complaint process, which may include alternate dispute resolution (ADR)
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 457

-- When MEO investigates a complaint of discrimination, it is called a clarification 

and the allegation is documented on AF IMT 1587, Military Equal Opportunity 

Formal Complaint Summary

-- Base-level MEO personnel conduct clarifications of formal complaints

--- The purpose of clarification is to determine whether a formal complaint is 

sup- ported by a preponderance of the credible evidence

--- A preponderance of the credible evidence means more likely than not

--- If a clarification results in a determination that an alleged violation has 

occurred, the case MUST be forwarded through the servicing staff judge 

advocate (SJA) to the offender’s and the complainant’s commander for 

appropriate action

-- Both the complainant and the subject of a formal EO complaint may appeal the 

findings upon completion of complaint clarification

-- All appeals must be in writing

-- There is no right to a personal hearing

-- Commanders are not required to withhold command action pending an appeal

-- Installation commanders, MAJCOM/CVs, and SAF/MRB are authorized to decide 

appeals of formal complaints of discrimination

--- First level of appeal is to the lowest level of command authorized to decide 

the appeal, usually the installation commander

--- The appellate authorities may sustain or overrule any finding rendered below 

or remand the matter for further fact finding

--- SAF/MRB is the final review and appeal level for findings of formal complaints 

of unlawful discrimination

- Findings rendered pursuant to command action under the UCMJ are not subject to 

appeal through MEO channels
458 The Military Commander and the Law

- EO must forward closure documents, as set forth in AFI 90-301, Inspector General 

Complaints Resolution, to SAF/IGQ in all completed EO cases with complaints against 

officers in the grade of O-6, officers who have been selected for O-6, civil service 

employees in the grade of GS-15, and all completed EO cases with substantiated 

findings against officers in the grades of O-4 and O-5

Performance Evaluation Reports

- Rating and reviewing officials MUST consider membership in groups espousing 

supremacist causes or advocating unlawful discrimination in evaluating and assigning military members

- While mere membership in such groups is not prohibited, members who join groups 

espousing supremacist causes or advocating unlawful discrimination may not be 

suited to hold supervisory or other responsible positions if their personal views would 

be in conflict with Equal Opportunity and Treatment Program (EOT) guidelines they 

are required to support

- Rating and reviewing officials must document serious or repeated deviations from 

DoD and Air Force directives prohibiting discrimination

Reprisal/Whistleblower

- Air Force members are protected from reprisal for making, preparing, or attempting to make, a complaint of unlawful discrimination or sexual harassment to EO 

personnel, an IG or a member of the IG’s investigative staff, members of Congress or 

a member of their staff, DoD law enforcement organizations, or any other person or 

organization in the member’s chain of command designated pursuant to AFI 90-301 

or other established administrative procedures to receive such communications

- Reprisal complaints are referred by EO to the installation IG

References

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

EEO Act of 1972, Pub. L. 92-261, as amended 42 U.S.C. §§ 2000e et seq.

The Rehabilitation Act of 1973, 9 U.S.C. §§ 701 et seq.

1978 Amendments to the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq.

The Civil Rights Act of 1991, Pub. L. 102-166, as amended 42 U.S.C. § 2000e

AFI 36-2706, Equal Opportunity Program Military and Civilian (5 October 2010), incorporating 

Change 1, 5 October 2011

AFI 90-301, Inspector General Complaints Resolution (27 August 2015)
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 459

PROHIBITION ON SEXUAL HARASSMENT

Historical Background

- No federal statute explicitly defines or outlaws sexual harassment in the workplace; 

however, several federal court decisions in the 1970s established sexual harassment 

as illegal sex discrimination in violation of Title VII of the Civil Rights Act of 1964

-- Title VII’s prohibitions were made applicable to federal civilian employees as 

victims through the Equal Employment Opportunity Act of 1972

-- The protections of Title VII do not specifically apply to military members as victims

-- The DoD’s response to the issue of sexual harassment was the promulgation of 

DoDD 1350.2, Department of Defense Military Equal Opportunity (MEO) Program, 

which establishes policy for DoD and provides guidance to the military services 

for the implementation of their own equal opportunity and treatment programs 

to combat sexual harassment

-- The Air Force’s equal opportunity and treatment program is set forth in AFI 

36-2706, Equal Opportunity Program Military and Civilian

- The Civil Rights Act of 1991 allows for recovery against an employer, which can include 

the Air Force, of compensatory damages (pain and suffering, emotional harm, etc.) up 

to $300,000 per individual in cases of intentional discrimination brought by civilian 

employees. Such damages would likely have to be paid out of local base operations 

and maintenance (O&M) funds.

Definitions

- The Air Force defines sexual harassment as a form of sex discrimination that involves 

unwelcome sexual advances, requests for sexual favors, and other verbal or physical 

conduct of a sexual nature when:

-- Submission of such conduct is made either explicitly or implicitly a term or condition of a person’s job, pay, or career

-- Submission to or rejection of such conduct by a person is used as a basis for career 

or employment decisions affecting that person

-- Such conduct has the purpose or effect of unreasonably interfering with an 

individual’s work performance or creates an intimidating, hostile, or offensive 

working environment
460 The Military Commander and the Law

- Workplace conduct may be actionable as “abusive work environment” harassment 

even if it does not result in concrete psychological harm to the victim; rather, it need 

only be so severe or pervasive that a reasonable person would perceive, and the 

victim does perceive, the work environment as hostile or offensive. “Workplace” is 

an expansive term in the military context and may include conduct on- or off-duty, 

24 hours a day.

- Any person in a supervisory or command position who uses or condones any form 

of sexual behavior to control, influence, or affect the career, pay, or job of a military 

member or civilian employee is engaging in sexual harassment

- Any military member or civilian employee who makes deliberate or repeated 

unwelcome verbal comments, gestures, or physical contact of a sexual nature in the 

workplace is also engaging in sexual harassment

- Although sexual harassment is generally perpetrated by men against women, any 

form of unwelcome sexual advance against employees of either gender may constitute unlawful sexual harassment

Types of Sexual Harassment

- Judicial decisions have recognized two basic kinds of sexual harassment, both of 

which are reflected in the Air Force’s definition: 

-- Quid pro quo (meaning “this for that”) 

-- Hostile work environment

Quid Pro Quo Sexual Harassment

- Sexual harassment occurs when an employee suffers or is threatened with some kind 

of employment injury for refusing to grant sexual favors, or is promised some sort of 

tangible job benefit in exchange for sexual favors

-- Generally, it involves a supervisor/subordinate relationship where the victim is 

told to submit to sexual requests or be fired, demoted, or denied a promotion, 

an award, training opportunity, objective appraisal, etc.

-- A single incident may be enough to qualify as quid pro quo sexual harassment

-- A threat to take action that changes a victim’s employment situation in exchange 

for sexual favors without an actual job benefit or detriment is sufficient to constitute quid pro quo sexual harassment under Air Force regulations
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 461

Hostile Work Environment Sexual Harassment 

- Occurs when a supervisor, co-worker, or someone else with whom the victim comes 

in contact on the job creates an abusive work environment or interferes with the 

employee’s work performance through words, actions, or conduct that is perceived 

as sexual in nature

-- Some examples include:

--- Discussing sexual activities

--- Unnecessary touching

--- Commenting on physical attributes

--- Displaying sexually suggestive pictures or pornography

--- Using demeaning or inappropriate terms, such as “babe”

--- Using unseemly or profane gestures

--- Granting job favors to those who participate in consensual sexual activity

--- Using sexually crude, profane, or offensive language

-- A single act, if severe enough, may support a cause of action for hostile work 

environment sexual harassment

-- The nature, severity, frequency, and duration of the conduct are some factors 

the courts consider when evaluating whether certain conduct constitutes sexual 

harassment

-- How severe or pervasive the harassment must be to constitute sexual harassment 

depends upon the specific facts

--- Conduct that constitutes harassment in one situation may not in another; 

however, the commander who demands professional, civil conduct from 

members of the organization will prevent most of the problems that arise 

in this area

--- An isolated epithet does not usually support a cause of action for hostile 

work environment discrimination
462 The Military Commander and the Law

---- That does not mean that commanders are in any way restricted from 

taking disciplinary action based upon a single incident

---- In fact, commanders are required to act to stop sexual harassment no 

matter how minor the conduct may be

--- Because the legal boundaries involved in this type of sexual harassment are 

unclear, supervisors and subordinates alike should avoid any sexual conduct 

in the workplace or any behavior that is in any way demeaning to members 

of the opposite or same sex

--- All complaints, regardless of whether they appear to meet the legal test of 

hostile work environment sexual harassment, should be quickly investigated 

and appropriate action taken to stop offensive conduct

--- Hostile work environment sexual harassment is the most difficult type to 

recognize, and the particular facts of each situation determine whether 

offensive conduct has crossed the line from simply inappropriate behavior 

to sexual harassment

- Under Title VII of the Civil Rights Act, civilian victims may sue the Air Force for monetary damages for sexual harassment in either form

-- An employer (e.g., the Air Force) will almost always have no defense in a case of 

sexual harassment if the facts show conduct that resulted in an actual tangible 

employment action (firing, demotion, etc.)

-- Provided no tangible employment action occurred, an employer (e.g., the Air 

Force) may be able to establish a defense to either limit or avoid liability if the 

employer has a formal, published policy against sexual harassment; provides 

training to its employees and supervisors about sexual harassment (and how 

to stop it); has a grievance and complaint system in place; and takes prompt 

effective corrective action to remedy a complaint of sexual harassment

-- If a commander finds out about an incident of sexual harassment (or an incident 

that could be sexual harassment), the commander should not wait for a complaint to be filed; rather, the commander should use his/her inherent authority to 

begin an inquiry into the matter in an effort to determine whether the conduct 

constituted sexual harassment and to remedy the problem
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 463

- Command attention to sexual harassment must include the following actions:

-- Publish clearly the Air Force’s policy on sexual harassment, i.e., zero tolerance

-- Ensure that civilian employee/military member avenues of communication and 

complaint are well publicized throughout the unit

-- Provide appropriate training on sexual harassment

-- Act quickly to investigate all complaints of sexual harassment in a fair and impartial manner

-- Seek advice from the MEO office, the staff judge advocate (SJA), and the civilian 

personnel office, as appropriate, before taking action against offenders

Commander’s Inquiry under 10 U.S.C. § 1561 (Sexual Harassment Investigations 

and Reports)—Military or Civilian Complainant

- 10 U.S.C. § 1561 was passed in 1998 by Congress to ensure that complainants in sexual 

harassment cases receive a timely investigation and response to their complaints

- It is important to remember that a complainant (either military or civilian) may elect 

the commander’s inquiry and/or the equal opportunity (EO) process for military 

complainant/ equal employment opportunity (EEO) process for civilian complainant

- The process is dual-tracked in that the commander’s inquiry, if elected by the complainant, is conducted even if the EO/EEO process has not been completed

- When the commander receives a complaint, 10 U.S.C. § 1561 requires several actions 

(commanders should consult the local SJA office for assistance). Within 72 hours 

after receipt of the complaint, the commander must:

-- Forward the complaint or a detailed description of the allegation to the general 

court- martial convening authority (GCMCA)

-- Begin the investigation

-- Advise the complainant of the beginning of the investigation

- The commander is responsible for ensuring the investigation is completed no later 

than 14 days after it was commenced
464 The Military Commander and the Law

- The commander shall also submit a report on the progress made in completing the 

investigation to the GCMCA within 20 days after the investigation began and every 

14 days thereafter until the investigation is completed, and upon completion of the 

investigation, then submit a final report on the results of the investigation, including 

any action taken as a result of the investigation

Complaint Processing—Military Complainant

- The MEO office is the office of primary responsibility (OPR) for the Air Force EO program and has primary responsibility for the maintenance of the program and for 

handling complaints of sexual harassment

-- If a complaint (formal or informal) is filed with MEO, it will be handled by the EO 

officer and the alleged occurrence of harassment will be called an EO incident

-- Generally, a formal complaint filed with MEO will generate an investigation by 

MEO personnel called a clarification

-- The clarification is designed to determine the facts and cause of the EO incident, 

assess the severity of the incident and the effect on morale and good order and 

discipline, and develop recommendations concerning the classification of the 

incident and appropriate corrective action

--- A clarification will include witness interviews, taking statements, reviewing 

records and documents, and will ultimately conclude with a report by an 

investigating officer

--- The standard of proof used in a clarification is a preponderance of the credible evidence (i.e., more likely than not)

--- At the conclusion of the investigation, the EO incident will be either unsubstantiated or substantiated and therefore a recommendation will be made

--- Strict time standards exist for completion of the clarification

-- If the EO incident is substantiated, a legal review is required before the report is 

forwarded to the concerned commander for appropriate action
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 465

-- The complaint process allows for an appeal of the findings of the clarification of 

formal complaints of sexual harassment

--- Findings concerning an informal complaint may be appealed by filing a 

formal complaint

--- Either the complainant or the subject may appeal to the next higher 

commander

--- Command action may continue regardless of the existence of an appeal

--- The appropriate legal office will conduct a legal review if the matter is 

appealed to the next level of command

--- The Air Force Review Boards Agency is the final review and appeal level

- MEO will not investigate a complaint that involves criminal conduct

-- Criminal conduct will be handled by the base law enforcement community

-- Complaints against senior officials, colonels and colonel selects are investigated 

by the Inspector General (IG)

-- If the result of a clarification is inconclusive, the IG may institute an investigation

- MEO will not investigate a complaint filed by a civil service employee, but rather will 

document the complaint and refer it to the EEO office regardless of the status of the 

alleged offender

- Complaints of sexual harassment against senior officials, consisting of officers in 

the grade of O-7 select and above, Air National Guard colonels with a certificate of 

eligibility, and members of the senior executive service, must be immediately referred 

to SAF/IGS

- EO must notify the installation commander and local IG when there is a sexual 

harassment complaint against an officer in the grade of O-6, an officer who has been 

selected for O-6, or a civil service employee in the grade of GS-15, and the installation 

commander must notify MAJCOM/IGQ and SAF/IGQ of such complaints

- EO must forward closure documents, as set forth in AFI 90-301, Inspector General 

Complaints Resolution to SAF/IGQ in all completed EO cases with complaints against 

officers in the grade of O-6, officers who have been selected for O-6, and civil service 
466 The Military Commander and the Law

employees in the grade of GS-15, and all completed EO cases with substantiated 

findings against officers in the grades of O-4 and O-5

Complaint Processing—Civilian Employee Complainant

- The EEO counselor is the OPR for complaints of sexual harassment brought by civilian 

employees

- Pre-Complaint: After a complainant has made initial contact with the EEO Office, an 

EEO counselor will advise the complainant of certain rights and obligations, place 

all allegations in the pre-complaint process regardless of merit or timeliness, and 

attempt to resolve the situation between the parties. The EEO counselor has 30 days 

to complete this process (60 days upon agreement by the complainant).

- If the EEO counselor is unable to resolve the situation during pre-complaint processing, the complainant is advised that he/she may file a formal complaint of 

discrimination

- Formal Complaint: The EEO counselor will, among other things, advise the complainant of further rights

-- During this time, the complaint is evaluated by civilian personnel and the legal 

office for soundness and possible settlement

-- The Installation EEO Manager requests a complaint investigator from the investigations and resolutions division (IRD) within 30 days of the date the formal 

complaint was filed

-- IRD will investigate the complaint and send a copy of the report of investigation 

and complaint file to the Installation EEO Manager, Air Force Civilian Appellate 

Review Office (AFCARO), and the complainant or complainant’s designated 

representative

-- The complainant must then elect whether an Equal Employment Opportunity 

Commission (EEOC) hearing is desired or whether he or she prefers the Air Force 

to issue a final decision

-- The complainant and the commander can meet and discuss possible resolution 

of the complaint during the period of time the complainant is deciding which 

route to pursue

-- The complainant has 30 days from receipt of the report of investigation to request 

an EEOC hearing
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 467

- After the formal complaint process, it is possible for the complainant to make various 

appeals and eventually file suit in federal court; consult the legal office for further 

information

- SAF/MRBA is responsible for notifying SAF/IGS when an EEO complaint is made 

against a senior official, consisting of an officer in the grade of O-7 select and above, 

an Air National Guard colonel with a certificate of eligibility, or a member of the 

Senior Executive Service

- SAF/MRBA notifies SAF/IGQ when an EEO complaint is made against an officer in the 

grade of O-6, an officer who has been selected for O-6, or a civil service employee in 

the grade of GS-15

- EEO must forward closure documents, as set forth in AFI 90-301, to SAF/IGQ in all 

completed EEO cases with complaints against officers in the grade of O-6, officers 

who have been selected for O-6, and civil service employees in the grade of GS-15 

and all completed EEO cases with substantiated findings against officers in the grades 

of O-4 and O-5

Command Options to Address Substantiated Complaints of Sexual Harassment

- Commanders who find military personnel to have engaged in sexual harassment 

have the usual disciplinary and administrative options, including counseling, 

admonishment, reprimand, nonjudicial punishment, administrative discharge, and 

court-martial

- Commanders who find civilian personnel to have engaged in sexual harassment 

should normally focus any disciplinary action on the offensive act or acts involved 

(e.g., unwelcome touching, offensive comments) rather than alleging sexual harassment, and may deal with the misconduct pursuant to AFI 36-704, Discipline and 

Adverse Actions, in the following manner:

-- Any disciplinary action, which includes punishment greater than suspension for 

more than 14 days, can be appealed to the U.S. Merit Systems Protection Board 

(MSPB)

-- At an MSPB proceeding, the Air Force must prove by a preponderance of the 

evidence that the misconduct (e.g., offensive touching, offensive comments) 

took place and that the punishment imposed serves to promote the efficiency 

of the service
468 The Military Commander and the Law

References

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

The Civil Rights Act of 1991, Pub. L. 102-166, as amended 42 U.S.C. § 2000e

10 U.S.C. § 1561

29 C.F.R. Part 1614

DoDD 1350.2, Department of Defense Military Equal Opportunity (MEO) Program (18 August 

1995) certified current, 21 November 2003, incorporating through Change 2, 8 June 2015

AFI 36-701, Labor Management Relations (27 July 1994)

AFI 36-704, Discipline and Adverse Actions (22 July 1994)

AFI 36-2706, Equal Opportunity Program Military and Civilian (5 October 2010), incorporating 

Change 1, 5 October 2011

AFI 90-301, Inspector General Complaints Resolution (27 August 2015)
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 469

THE INSPECTOR GENERAL COMPLAINTS 

RESOLUTION PROCESS

Overview

The inspector general (IG) is the “eyes and ears” of the commander. The IG complaints 

resolution program is a leadership tool to resolve problems affecting the Air Force mission 

promptly and objectively.

- The IG will encourage complainants to try to resolve their problem(s) at the lowest 

level first—this usually means the chain of command

- The IG has authority to process a variety of complaints related to violations of law, 

policy, procedures or regulations, abuse of authority, etc.

- ONLY the IG has the authority to process certain types of allegations: reprisal and 

restriction; if there is no evidence of reprisal and/or restriction, the IG will analyze 

for abuse of authority

- The IG MAY NOT be used for:

-- Matters normally addressed through other channels unless there is evidence 

those channels mishandled the matter or process

-- Matters listed in AFI 90-301, Inspector General Complaints Resolution, Table 

3.6 (civilian reprisal complaints, civilian equal employment opportunity (EEO) 

complaints, military equal opportunity (MEO) complaints not involving a senior 

official, claims against the government, Article 138, UCMJ, etc.)

IG Investigations

- IG investigations are distinct from other investigations, such as commander directed 

investigations (CDIs)

- An investigating officer (IO) investigates pursuant to AFI 90-301 when properly 

authorized, in writing, by the appropriate appointing authority

- A complaint analysis may result in a referral, including referral to a commander to 

consider a CDI; a dismissal; or a recommendation to investigate

- The standard of proof to substantiate an allegation during an IG investigation is a 

preponderance of the evidence
470 The Military Commander and the Law

-- The IO must be satisfied that the greater weight of the credible evidence supports 

the findings and conclusions

-- This means that it is more likely than not that the events occurred

Reprisal (“Whistleblower” Protection) Complaints

- Reprisal is a violation of federal law, 10 U.S.C. § 1034, and may result in disciplinary 

action under the UCMJ or applicable civilian directives or instructions

- Reprisal occurs when a responsible management official (RMO) takes (or threatens to 

take) an unfavorable personnel action (UPA) or withholds (or threatens to withhold) 

a favorable personnel action on a military member for making or preparing, or being 

perceived as making or preparing to make, a protected communication (PC)

-- RMOs include three categories: (1) those who influenced/recommended the 

action; (2) those who took the action; and (3) those who approved/reviewed/

endorsed the action

-- Personnel actions include actions that affect OR have the potential to affect a 

military member’s current position or career (e.g., promotion, disciplinary/corrective action, reassignment, performance report, a significant change in duties 

not commensurate with the member’s grade)

-- There are 3 types of PCs:

--- Any lawful communication to a member of Congress or an IG

---- An unlawful communication is a communication that itself constitutes 

misconduct, a violation of the UCMJ, or a violation of other criminal 

statute (e.g., knowingly false statements, unauthorized disclosures of 

information, threatening statements)

--- A communication of information reasonably believed to evidence a violation 

of law or regulation when made to any of the following (list is not all-inclusive):

---- A member of Congress or a member of their staff; IG or member of the 

IG’s staff; personnel assigned to DoD audit, inspection, investigation, 

law enforcement, EO, safety, sexual assault prevention and response 

designees, or family advocacy organizations; chain of command; Chief 

Master Sergeant of the Air Force, command chiefs, or first sergeants; 

courts-martial proceeding
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 471

--- Testifying, or participating or assisting in an investigation/proceeding under 

(1) or (2) above, or filing, causing to be filed, participating or assisting in a 

reprisal and/or restriction action

--- Examples of PCs: a major tells his commander about what the major reasonably thinks is a threat to flight safety; a senior airman tells her civilian director 

about what the senior airman reasonably believes to be sexual harassment 

by her immediate supervisor against an airman basic; a technical sergeant 

walks into the IG’s office and discusses the weather with the IG

- To analyze allegations of reprisal, IOs must use a four-part reprisal “acid test” (note: 

the IO should use the acid test from the version of AFI 90-301 in effect at the time 

of the alleged wrongdoing; the wording of the acid tests varies slightly in some of 

the versions):

-- Did the military member make, prepare to make, or was perceived to make a PC?

-- Was a UPA taken or threatened, or was a favorable action withheld or threatened 

to be withheld following the PC?

-- Did the RMO(s) know about the PC?

-- Does the preponderance of the evidence establish that the personnel action 

would have been taken/threatened or withheld/threatened to be withheld if the 

PC had not been made? To answer this question, IOs must address the following 

five factors:

--- Reasons the RMO took/threatened, withheld/threatened to withhold, recommended/influenced, or approved/endorsed the action

--- Reasonableness of the action given complainant’s conduct/performance

--- Consistency with the RMO’s past practice (i.e., how the RMO handled the 

situation in the past under similar circumstances with similarly situated 

individuals)

--- Motive of the RMO for the action

--- Procedural correctness of the action (based on Air Force Instruction, law, etc., 

that pertains to the action)
472 The Military Commander and the Law

- If the IO determines reprisal did not occur, the IO must conduct an analysis to determine if an abuse of authority occurred

-- Abuse of authority is an arbitrary and capricious exercise of power that adversely 

affects any person OR results in personal gain or advantage to the abuser

-- “Arbitrary and capricious” is defined as the absence of a rational connection 

between the facts found and the choice made, constituting a clear error of 

judgment

-- To analyze whether an abuse of authority occurred, IOs must use the Acid Test 

for Abuse of Authority (note: the IO should use the acid test from the version of 

AFI 90-301 in effect at the time of the alleged wrongdoing and the wording of 

the acid test varies slightly in some of the versions):

--- Did the RMO’s actions either: (a) adversely affect any person; or (b) result in 

personal gain or advantage to the RMO?

---- If the answers to both subparts of the question are no, then it is not 

necessary to continue with the acid test; if the answer to either subpart 

of the question is yes, then the IO must continue with the acid test

--- Was the RMO’s action either: (a) outside the authority granted under applicable regulations, law, or policy; or (b) arbitrary and capricious? To answer 

this question, IOs must consider the following three factors (note: the IO 

should use the acid test from the version of AFI 90-301 in effect at the time 

of the alleged wrongdoing):

---- Reasons the RMO took/threatened, withheld/threatened to withhold, 

recommended/influenced, or approved/indorsed the action

---- Reasonableness of the action given complainant’s performance/conduct

---- Consistency with the RMO’s past practice (i.e., how the RMO handled the 

situation in the past under similar circumstances with similarly situated 

individuals)

- All reprisal investigations undergo IG and legal reviews at the major command (or 

Joint Force Headquarters), Secretary of the Air Force (SecAF), and DoD levels

- DoD IG renders final review/approval
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 473

Restriction Complaints

- 10 U.S.C. § 1034 and AFI 90-301 also state that no person may restrict a military 

member from communicating with a member of Congress or an IG as long as the 

communication is lawful

-- An unlawful communication is a communication that itself constitutes misconduct, a violation of the UCMJ, or a violation of other applicable criminal statutes 

(e.g., knowingly false statements, unauthorized disclosure of information, threatening statements)

- Example of restriction: Commander says, “You will bring any problems you have to 

me before going outside the chain of command”

- Restriction is a violation of federal law, 10 U.S.C. § 1034, and may result in disciplinary 

action under the UCMJ (e.g., violation of Article 92 for not following the applicable 

Air Force Instruction) or applicable civilian directives or instructions

- To analyze restriction allegations, IOs answer the following three questions:

-- (1) How did the subject limit or attempt to limit the member’s access to an IG or 

a member of Congress?

-- (2) What was the intent of the RMO? To answer this question, IOs must consider 

the following three factors:

--- Reasons for restricting or taking actions that created barriers to making PC(s)

--- Reasonableness of the RMO’s actions

--- Motive for the RMO’s actions

-- (3) Would a reasonable person, under similar circumstances, believe he/she was 

actually restricted from making a lawful communication with the IG or a Member 

of Congress based on the RMO’s actions?

--- Indicate whether or not the alleged restriction created a “chilling” effect—an 

action, through words or behavior that would tend to prevent an individual(s) 

from taking a proposed course of action
474 The Military Commander and the Law

- If the IO determines restriction did not occur, the IO must conduct an analysis to 

determine if an abuse of authority occurred (see discussion of abuse of authority 

under “Reprisal (‘Whistleblower’ Protection) Complaints” section above

- All restriction investigations undergo IG and legal reviews at the major command (or 

Joint Force Headquarters), SecAF, and DoD levels

- DoD IG renders final review/approval

Special Processing Requirements

- Reprisal and restriction complaints have unique reporting requirements as set forth 

in AFI 90-301 and only the IG may investigate such allegations

- ONLY the Secretary of the Air Force, Office of the Inspector General, Senior Officials 

Directorate (SAF/IGS) handles complaints against senior officials, consisting of officers 

in the grade of O-7 select and above, Air National Guard colonels with a certificate of 

eligibility, and members of the senior executive service; complaints involving senior 

officials should be reported immediately to SAF/IGS

- All complaints, regardless of the nature of the allegation, alleging O-6 misconduct 

(even if handled by a CDI) must be reported to Secretary of the Air Force, Office of 

the Inspector General, Complaints Resolution Directorate (SAF/IGQ); all substantiated findings of wrongdoing resulting from any type of investigation or inquiry 

against O-6s and/or adverse information (e.g., Letter of Counseling (LOC), Letter of 

Admonishment (LOA), Letter of Reprimand (LOR), Article 15 punishment), regardless 

of whether or not there was a formal investigation or inquiry, against O-6s must be 

reported to SAF/IGQ

- All substantiated findings of wrongdoing resulting from any type of investigation 

or inquiry against O-4s and O-5s and/or adverse information against O-4s and O-5s 

(e.g., LOC, LOA, LOR, Article 15 punishment), regardless of whether or not there was 

a formal investigation or inquiry, must be reported to SAF/IGQ

Confidentiality

- Communications made to the IG are NOT privileged or confidential

- However, disclosure of these communications, and the identity of the communicant, 

will be strictly limited to an official need-to-know
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 475

Bottom Line

- The potential for an IG complaint should never dissuade a commander from taking 

timely and appropriate corrective and preventive actions for legitimate reasons

- Commanders should coordinate with the staff judge advocates for effective legal 

guidance on these issues

References

5 U.S.C. § 2302

10 U.S.C. § 1034

10 U.S.C. § 1587

10 U.S.C. § 2409

DoDD 7050.06, Military Whistleblower Protection (17April 2015)

DoD Inspector General, Guide to Investigating Military Whistleblower Reprisal and Restriction 

Complaints (29 June 2015)

AFI 90-301, Inspector General Complaints Resolution (27 August 2015)

AFPD 90-3, Inspector General—The Complaints Resolution Program (18 August 2009), certified 

current 24 October 13

SAF/IG web site: http://www.af.mil/InspectorGeneralComplaints.aspx

SAF/IGQ Commander-Directed Investigations Guide (18 February 2016)

SAF/IGQ Investigating Officer’s Guide (February 2012)

SAF/IGQ JAG Guide to IG Investigations (14 April 10)
476 The Military Commander and the Law

POLITICAL ACTIVITIES BY AIR FORCE MEMBERS

Political activities by Air Force members may be restricted in order to reach the goal of 

a politically neutral military establishment through avoidance of partisan politics. The 

Air Force provides guidance on permissible and impermissible political activities in AFI 

51-902, Political Activities by Members of the U.S. Air Force. Violations of AFI 51-902 are 

punishable under UCMJ, Art. 92, Failure to Obey a Lawful Regulation.

Permitted Political Activities

- Air Force members MAY:

-- Register to vote, vote, and express a personal opinion on political candidates and 

issues, but not as a representative of the Air Force

-- Make monetary contributions to a political organization or political committee 

favoring a particular candidate or slate of candidates, subject to limitations under 

federal election laws

-- Attend political meetings or rallies as a spectator when not in uniform and when 

no inference or appearance of official sponsorship, approval, or endorsement 

can reasonably be drawn

-- Join a political club and attend its meetings when not in uniform

-- Serve as an election official, if such service is not as a representative of a partisan 

political party, does not interfere with military duties, is performed while out of 

uniform, and has prior Secretary of the Air Force (SecAF) approval

-- Sign a petition for specific legislative action or a petition to place a candidate’s 

name on an official election ballot if the signing does not obligate the member 

to engage in partisan political activity and is done as a private citizen

-- Write a letter to the editor of a newspaper expressing personal views of the member concerning public issues, if those views do not promote a partisan political 

cause

--- If the letter or blog identifies the member as a member of the Armed Forces, 

it should clearly state that the views expressed are those of the individual 

only and not those of the Department of Defense

-- Display a political bumper sticker (traditional size) on their private vehicle or wear 

a political button when not in uniform and not on duty
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 477

-- Write a personal letter, not for publication, expressing preference for a specific 

political candidate or cause, if the action is not part of an organized letter-writing 

campaign on behalf of a partisan political cause or candidate

Prohibited Political Activities

- Air Force members MAY NOT:

-- Use official authority or influence to interfere with an election, to affect its course 

or outcome, to solicit votes for a particular candidate or issue, or to require or 

solicit political contributions from others

-- Be a candidate for civil office or hold civil office, except as authorized by DoDD 

1344.10, Political Activities by Members of the Armed Forces on Active Duty, paras. 

4.2 and 4.3, and AFI 51-902, paras. 5 and 6

-- Participate in partisan political management, campaigns, or conventions, or make 

public speeches in the course of such activity

-- Allow, or cause to be published, partisan political articles signed or authorized by 

the member soliciting votes for or against a partisan political party or candidate

-- Serve in any official capacity or be listed as a sponsor of a partisan political club

-- Speak before a partisan political gathering of any kind for promoting a partisan 

political party, candidate, or cause

-- Participate in any radio, television, or other program or group discussion as an 

advocate of a partisan political party, candidate, or cause

-- Conduct a political opinion survey under the auspices of a partisan political group 

or distribute partisan political literature

-- Perform clerical or other duties for a partisan political committee during a 

campaign, on election day, or after an election during the process of closing a 

campaign

-- Solicit or otherwise engage in fund-raising activities in federal offices or facilities, 

including military reservations, for any political cause or candidate

-- March or ride in a partisan political parade
478 The Military Commander and the Law

-- Participate in any organized effort to provide voters with transportation to the 

polls if the effort is organized by or associated with a partisan political party or 

candidate

-- Attend, as an official representative of the Armed Forces, partisan political events, 

even without actively participating

-- Engage in the public or organized recruitment of others to become partisan 

candidates for nomination or election to a civil office

-- Make campaign contributions to another member of the armed forces or an 

officer or employee of the federal government for promoting a political objective 

or cause

-- Solicit or receive a campaign contribution from another member of the armed 

forces or from a civilian officer or employee of the United States for promoting 

a political objective or cause

-- Use contemptuous words against the office holders described in UCMJ, Art. 88 

(for officers)

-- Display a large political sign, banner, or poster on the top or side of a member’s 

private vehicle (as distinguished from a political bumper sticker)

-- Display a partisan political sign, poster, banner, or similar device visible to the 

public at their residence on a military installation, including privatized housing 

developments

-- Sell tickets for, or otherwise actively promote, partisan political dinners and other 

such fund-raising events

Campaigning and Holding Public Office

- Air Force members MAY NOT be a candidate for nomination or as a nominee for 

civil office EXCEPT:

-- With proper approval from SecAF, a member may be permitted to file evidence 

of nomination or candidacy for nomination as required by law

-- A request for approval will normally not be granted unless the member is likely 

to separate from active duty/active duty training at least 30 days before the 

scheduled election
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 479

- Approved candidates for civil office may use biographical data from their military 

careers and photographs of themselves in uniform provided:

-- Any images depicted are an accurate portrayal of their performance of duties; and

-- They use a disclaimer that such information and images does not constitute 

endorsement by DoD or the Air Force

- Except as authorized by law, regular officers on the active duty list, and members on 

active or full-time National Guard duty under a call or order for a period of more than 

270 days, may not hold or exercise the functions of a civil office, including:

-- Federal elective, Presidential-appointed, or senior executive service offices

-- Any office in the government of a state; the District of Columbia; a territory, 

possession, or commonwealth of the United States; or in any political subdivision 

of the foregoing

-- Such members may hold or exercise the functions of other federal civil offices 

when assigned or detailed to that office to perform those functions

- Enlisted members may seek and hold nonpartisan civil office on a local school board, 

neighborhood planning commission, and similar agencies provided that the office 

is held in a private capacity and does not interfere with the performance of military 

duties

- Officers on active duty may seek and hold nonpartisan civil office on an independent 

school board that is located exclusively on a military reservation, but such offices 

must be held in a private capacity and may not interfere with military duties

References

DoDD 1344.10, Political Activities by Members of the Armed Forces on Active Duty 

(19 February 2008)

DoD 5500.07-R, Joint Ethics Regulation (30 August 1993), incorporating through Change 7, 

17 November 2011

AFI 51-902, Political Activities by Members of the U.S. Air Force (27 August 2014)

AFI 51-903, Dissident and Protest Activities (30 July 2015)

2016 Election Year Guidance (March 2016), http://www.dod.mil/dodgc/defense_ethics (select 

“Ethics Resource Library,” then “DoD Guidance,” and then scroll to “Political Activities”)

FAQs Social Media and Political Activities—Guidance for Members of the Armed Forces (June 

24, 2014), http://www.dod.mil/dodgc/defense_ethics/ (select “Ethics Resource Library,” then 

“DoD Guidance,” and then scroll to “Political Activities – Guidance for Active Duty Military”)
480 The Military Commander and the Law

MEMBERSHIP AND PARTICIPATION IN HATE GROUPS

Air Force members must reject participation in organizations that espouse supremacist, 

extremist, or criminal gang doctrine—ideology—or causes. This includes organizations 

that advance, encourage, or advocate illegal causes; attempt to create illegal discrimination based on race, color, sex, religion, or national origin; advocate the use of force or 

violence; or otherwise engage in the effort to deprive individuals of their civil rights. 

These groups are collectively referred to as “hate groups.”

- Active participation in hate groups is prohibited. Active participation can include:

-- Publicly demonstrating or rallying

-- Fund-raising

-- Recruiting and training members

-- Knowingly wearing gang colors/clothing or having tattoos or body markings 

associated with such gangs or organizations

-- Organizing or leading such organizations

-- Otherwise engaging in activities or acting in furtherance of the objectives of 

such organizations that the commander finds to be detrimental to good order, 

discipline, or mission accomplishment

- Mere membership in these organizations is not prohibited, but must be considered 

in evaluating and assigning military members

- Members who violate this prohibition are subject to disciplinary action under UCMJ, 

Art. 92

- Commanders should intervene early, primarily through counseling, when observing 

such signs even though the signs may not rise to active advocacy or active participation or may not threaten good order and discipline, but only suggest such potential

- Commanders are authorized the full range of administrative and disciplinary actions, 

including separation, against those who actively participate in these organizations

- The military equal opportunity office (MEO) is responsible for assisting commanders 

in ensuring that the Air Force equal opportunity policy against discrimination and 

sexual harassment is fulfilled through the equal opportunity and treatment (EOT) 

program
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 481

- An EOT incident is an overt, adverse act, occurring on- or off-base, directed at an 

individual, group or institution, which is motivated by, or has overtones based on 

race, color, national origin, religion or sex, which has the potential to have a negative 

impact on the installation human relation climate

-- Incidents may include slurs, vandalism, graffiti, discriminatory epithets, signs, 

or symbols

-- MEO will classify the incident as minor, serious, or major depending upon the 

number of participants involved, the degree of any property damage, and the 

nature and extent of any physical injuries sustained as a result of the incident

References

AFI 36-2706, Equal Opportunity Program Military and Civilian (5 October 2010), incorporating 

Change 1, 5 October 2011

AFI 51-903, Dissident and Protest Activities (30 July 2015)
482 The Military Commander and the Law

EXTREMIST ACTIVITIES

Air Force commanders have the inherent authority, and responsibility, to take action to 

ensure the mission is performed and to maintain good order and discipline. This includes 

placing lawful restriction, when appropriate, on dissident and protest activities. At the 

same time, commanders balance this responsibility with service members right of expression consistent with law and impact on the overall command climate and unit cohesion. 

In assessing a situation involving extremism, commanders should consult with their staff 

judge advocates and other staff members in order to respond in an appropriate and 

prudent manner.

General Restrictions

- Participation in extremist organizations is incompatible with Air Force standards. Air 

Force Core values serve to promote unit morale and, among other things, emphasize 

the right of all Airmen to live and work in an environment free of harassment, unlawful discrimination, and illegal treatment. In supporting these core values, Airmen are 

expected to avoid the following:

-- Membership in groups that advocate supremacist causes; encourage racial, gender, or ethnic hatred or intolerance; advocate or engage in illegal discrimination 

or the use of force and violence to unlawfully deprive individuals of their rights

-- Participation in public demonstrations or rallies of such groups

-- Attending a meeting or activity with the knowledge the event involves an extremist cause; when it constitutes a breach of law and order; when violence is likely to 

occur; or when in violation of off-limits sanctions or an order by a commander

-- Participation in fund-raising activities on behalf of an extremist group

-- Recruiting or encouraging others to join an extremist organization

-- Distribution of hate or extremist literature on- or off-base to include use of electronic media such as e-mail, Facebook, etc.

Commander Responsibilities

- Commanders should ensure Airmen are fully aware of the Air Force position when it 

comes to participation in, or support of, extremist groups or causes. At the same time, 

commanders must be vigilant and alert for possible indicators of extremist group 

activity. Extremist activity usually has an immediate impact on a unit, eroding the 
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 483

team concept as members divide into opposing factions. Early evidence of affiliation 

or involvement in extremist activities may come to command attention in a number 

of ways including personal observation, reports through the chain of command, or 

anonymous calls or letters.

- The following activities, in isolation, may not be indicators of potential violence or 

terrorist activity. However, they are likely to be detrimental to good order and discipline. In addition, taken in conjunction with significant contextual factors, they may 

indicate an individual at risk of developing into an insider threat:

-- Encouraging disruptive/disobedient behavior

-- Expressing hatred or intolerance of American society and culture

-- Expressing sympathy for violence-promoting organizations

-- Refusing to deploy for political reasons

-- Associating with or expressing support for terrorists

-- Browsing or visiting Internet web sites, without official sanction in the performance of duty, that promote or advocate violence directed against the United 

States or U.S. forces, or that promote international terrorism or terrorist themes

-- Expressing outrage against U.S. military operations

-- Expressing a “duty” to protect a foreign community, when the expressed “duty” 

conflicts with the current mission of the service member and/or U.S. national 

interests

-- Possessing or seeking items that would be useful to terrorists but are not required 

for the performance of normal duties (e.g., night vision goggles or military GPS 

devices that might provide terrorists with capabilities that would otherwise be 

difficult to obtain)

-- Advocating unlawful violence, the threat of unlawful violence, or the unlawful 

use of force to achieve goals that are political, religious, or ideological in nature

-- Seeking spiritual sanctioning for unlawful violence
484 The Military Commander and the Law

- The following activities may be indicators of potential violence or terrorist activity 

and commanders should ensure their subordinates immediately report such indicia 

through command channels or to DoD law enforcement:

-- Display of symbols through flags, patches or posters which reflect causes presenting a clear danger to the loyalty, discipline or morale of Air Force personnel

-- Tattoos and other body markings which identify an Airman as a member of an 

extremist group or promote the cause of such an organization

-- Providing financial or other material support to a terrorist organization or to 

someone suspected of being a terrorist

-- Expressing an obligation to engage in violence in support of terrorism/violent 

extremist groups, advocating extremist views or inciting others to do the same

-- Purchasing bomb making materials, or obtaining information about their 

construction

-- Engaging in para-military training with anti-U.S. individuals

-- Distributing terrorist literature via the Internet

-- Applying for membership in a violent/terrorist group

-- Adopting a violent extremist ideology

-- Expressing loyalty to terrorists

-- Collecting intelligence for terrorists

-- Talking knowingly about future terrorist events

-- Expressing intent to commit a terrorist act

-- Traveling overseas for terrorist training

- Department of Army Pamphlet 600-15, Extremist Activities, provides additional 

guidance that commanders may find useful in identifying other signs or indicia of 

extremist activity by Airmen
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 485

Command Options

- Command options in responding to extremist activities include:

-- Counseling and education; ensure Airmen under their command understand the 

impact of extremist activity upon the unit as well as the fact there will be vigorous 

enforcement of Air Force policies prohibiting such activity

-- Disciplinary action; military and civilian employees may be disciplined for 

engaging in prohibited activity that adversely impacts the mission and creates 

workplace disruptions

-- Involuntary separation when warranted by the circumstances

-- Other administrative or disciplinary action based on the circumstances of the 

misconduct

-- Use the Armed Forces Disciplinary Control Board process to declare off limits 

businesses, establishments, or events that promote or cater to extremist activities or positions. See AFJI 31-213, Armed Forces Disciplinary Control Boards and 

Off-Installation Liaison and Operations.

- Extremist activities are extremely corrosive to unit cohesion and morale and, if 

unchecked, can result in loss of unit effectiveness and capability to accomplish its 

mission. Commanders need to lead by example and take immediate, vigorous action 

to promote Air Force Core Values and ensure extremism finds no ground to take root 

within their organizations.

References

UCMJ Arts. 92, 116, 117, and 134

DoDI 1325.06, Handling Dissident and Protest Activities among Members of the Armed Forces

(27 November 2009), incorporating Change 1, 22 February 2012

AFI 36-2706, Equal Opportunity Program Military and Civilian (5 October 2010), incorporating 

Change 1, 5 October 2011

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016

AFI 51-903, Dissident and Protest Activities, (30 July 2015)

AFJI 31-213, Armed Forces Disciplinary Control Boards and Off-Installation Liaison and Operations

(27 July 2006), certified current 2 January 2014

DA Pam 600-15, Extremist Activities (1 June 2000)
486 The Military Commander and the Law

SERVICEMEMBERS CIVIL RELIEF ACT (SCRA)

SCRA provides a wide range of protections for military members whose duties might 

interfere with certain civil obligations and proceedings. The Act (previously called the 

Soldiers and Sailors Civil Relief Act) was enacted in 1940. In 2003, the Act was revised to 

be called the Servicemembers Civil Relief Act. It is regularly amended by Congress with 

the goal of allowing military members to focus on the military mission first. 

- The Act applies to active duty members in civil matters, NOT criminal matters

- SCRA generally covers the time period on active duty, however some provisions 

apply to pre-service obligations (e.g., vehicle leases entered into prior to entry on 

active duty) and some provisions apply to a period following active service; some 

provisions also apply to dependents

Most Common and Relevant Provisions

- Eviction: The SCRA prohibits eviction of a service member and dependents from 

rented housing, without a court order, where the rent (as of 2016) does not exceed 

$3,451.20 per month. This amount is adjusted every February using a cost-of-living 

formula found in the Act and posted in the Federal Register. A court may delay eviction proceedings for up to 3 months, unless, in the opinion of the court, the ability 

of the tenant to pay the agreed rent is not materially affected by the tenant’s military 

service.

- Landlord-Tenant Lease Termination: A military member may unilaterally cancel a 

landlord-tenant lease, without fees, if they receive orders (permanent change of 

station (PCS) or deployment for more than 90 days)

- Vehicle Lease Termination:

-- A military member may cancel a pre-service lease for a motor vehicle if they 

receive orders bringing them onto active duty

-- A military member may cancel any motor vehicle lease (pre-service or signed 

during service) for deployment orders for more than 180 days, or PCS orders to 

a location outside of the continental United States (CONUS), or PCS orders from 

Alaska or Hawaii to any location outside of those states

-- Early termination fees are prohibited
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 487

- Installment Contracts: A service member who enters into an installment contract 

before entering active duty is protected if a deposit or installment has been paid 

before entering military service. The creditor cannot exercise rights of rescission, 

termination, or repossession without a court order.

- Cellular Phones: A cellular phone service contract may be terminated or suspended if 

the service member receives military orders or relocates for a period of not less than 

90 days to a location that does not support the contract. This includes deployment 

or temporary duty assignment (TDY) orders for 90 days or longer and PCS orders. 

Cancellation or suspension is without penalties or extra fees, and the service provider 

must refund any payments that were made in advance for services that were not 

provided.

- Maximum Rates of Interest: The interest rate on a member’s pre-service consumer 

debt or mortgage obligation must be capped at 6 percent unless the creditor shows 

that the ability of the service member to pay interest above 6 percent is not materially affected by reason of their military service. This relief applies during the entire 

period of active duty service, plus one year after duty, and must be applied retroactively if not requested at the outset of military service.

- Stay of Proceedings: Courts have the discretion to delay a civil court proceeding 

when the requirements of military service prevent the member from either asserting 

or protecting a legal right. The courts will look to whether military service materially affected the service member’s ability to take or defend an action in court. If 

the service member submits communication to the court showing: (1) how military 

requirements materially affect the ability to appear, (2) the date when the service 

member will be available to appear, and (3) communication from the commanding 

officer stating that the duty prevents appearance and leave is not authorized; the 

court must grant a stay of at least 90 days.

- Default Judgments: Before a court can enter a default judgment (for failure to respond 

to a lawsuit or failure to appear at trial) against a military member, the person suing 

the member must provide the court with an affidavit stating the defendant is not 

in the military. If the defendant is in the military, the court will appoint an attorney 

to represent the defendant’s interests (usually be seeking a delay of proceedings). 

If a default judgment is entered against a service member, the judgment may be 

reopened if the member makes an application within 90 days after leaving active 

duty, shows he was prejudiced, and shows he had a legal defense.
488 The Military Commander and the Law

- Insurance:

-- Life Insurance: A service member’s private life insurance policy is protected against 

lapse, termination, or forfeiture for nonpayment of premiums for a period of 

military service plus 2 years. The insured or beneficiary must apply to the Veterans’ 

Administration (VA) for protection.

-- Professional Liability Insurance: Malpractice insurance must “freeze” when the 

member enters military service and then resume (exactly where it left off) after 

release from military service

-- Health Insurance: Pre-service health insurance plans must be reinstated upon 

termination or release from active duty, if the member applies within 120 days. 

Coverage will not be subject to any new exclusions or waiting periods that were 

not included in the original coverage, as long as the condition was not determined by the VA to be a disability incurred during or aggravated by military 

service.

- Taxation: A service member’s state of legal residence may tax military income. A 

member does not lose legal residence solely because of a transfer pursuant to military 

orders. For example, if a member is a Virginia resident and is moved to a base in 

California, the member does not lose Virginia residency nor will he be subject to pay 

California state income tax on his military pay. Also, a non-resident service member’s 

pay may not be used to “lift” a spouse’s pay into a higher tax bracket (the so-called 

“Kansas rule”).

- Military Spouses Residency Relief Act (MSRRA): In 2009, Congress substantially 

changed the legal framework regarding spouse residency for tax purposes. The 

MSRRA revised the SCRA to provide that military spouses do not lose nor acquire a 

residence for tax purposes solely because of a military move. Furthermore, while only 

military income is protected from non-resident income tax for the service member, 

the MSRRA exempts all income for the non-resident spouse. In order to receive this 

protection, the statute’s language requires that the spouse’s residence be the same 

as the service member, although some states do not appear to be enforcing this 

requirement.

- Pre-Service Mortgages: Significant protections exist against foreclosure regarding 

mortgages obtained before a service member was called to active duty service. If 

foreclosure is initiated during active duty service, or within 90 days following active 

service, foreclosure can only be obtained with a court order and the court should 

stay the proceedings or adjust the obligation if the ability to pay is materially affected 

by service.
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 489

- Adverse Actions: Creditors and insurers may not use a service member’s exercise of 

rights under the SCRA as the sole basis for taking an adverse action (e.g., denial of 

credit, refusal of insurance) against the service member

- Child Custody: Based on a 2015 amendment, a state court is prohibited from considering a service member’s deployment as the sole factor in determining the best 

interests of the child, though this provision does not create a federal right of action

References

Servicemembers Civil Relief Act, 50 U.S.C. §§ 3901– 4043

Military Spouses Residency Relief Act, Pub. L. 111-97
490 The Military Commander and the Law

UNIFORMED SERVICES EMPLOYMENT AND 

REEMPLOYMENT RIGHTS ACT (USERRA)

USERRA encourages non-career military service by minimizing civilian employment problems resulting from such service. USERRA prohibits discrimination and acts of reprisal 

against members who serve in the uniformed services.

Overview

- An employer including any government or private entity, regardless of size, may not 

deny a person initial employment, promotion, or any benefit of employment because 

the person performed or is obliged to perform service in a uniformed service

-- Uniformed services means the Air Force, Army, Navy, Coast Guard, Marine Corps, 

the commissioned corps of the Public Health Service, Army National Guard, and 

the Air National Guard

-- Service in the uniformed services means performing duty on a voluntary or involuntary basis in a uniformed service. It includes active duty, active and inactive 

duty for training, initial active duty for training, full-time National Guard duty, 

and a period for which a person is absent from a position of employment for the 

purpose of an examination to determine the fitness of the person to perform 

any such duty.

Eligibility Criteria

- To have reemployment rights following a period of uniformed service, a person must 

meet all of the following eligibility criteria:

-- Must have held a civilian job, which may include temporary jobs

-- Must have given advance notice to the employer that they were leaving the job for 

service in a uniformed service, unless such notice is impossible or unreasonable

-- The period of service does not exceed 5 years

--- The period of service is cumulative as long as the person is employed by or 

seeking reemployment with the same employer. A person starting a new 

job with a new employer receives a new 5-year entitlement. For purposes 

of federal employment, the entire federal government is considered the 

employer, not any one individual agency.
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 491

--- Some categories of military service do not count toward the 5-year limit such 

as most periodic and special Reserve and National Guard training, most service in time of war or emergency, and involuntary extensions on active duty

-- Must have been released from service under honorable conditions

-- Must have reported back to the civilian job in a timely manner or have submitted 

a timely application for reemployment

Period of Military 

Employment 1-30 Days 31-180 Days More than 180 Days

Application 

Requirements

Report next scheduled work 

period—after sufficient time 

to allow safe transportation 

from military training site 

to the person’s place of 

residence, plus 8 hours

Apply within 14 

days following 

completion of 

service

Apply within 90 

days following 

completion of 

service

Entitlements

- People who meet the eligibility criteria under USERRA have seven basic entitlements:

-- Prompt reinstatement

-- Accrued seniority, as if the person had been continuously employed

--- This is the “escalator principle,” meaning the returning veteran does not step 

back on the seniority escalator at the point he stepped off, but at the point 

he would have occupied had he kept his position continuously during his 

military service

--- The “status” the person would have attained if continuously employed 

includes, for example, location, opportunity to work during the day instead 

of at night, and the opportunity to work in a department or at such times 

when there are better opportunities to earn commissions or to be promoted

-- Immediate reinstatement of civilian health insurance coverage, if the member 

does not elect to continue it during service
492 The Military Commander and the Law

-- Other non-seniority benefits, as if the person had been on a furlough or leave of 

absence, such as holiday pay or bonuses

-- Training or retraining and other accommodations

--- USERRA requires an employer to make reasonable efforts to qualify the 

returning person for work, including training on new equipment or methods

--- An employer must also make a reasonable effort to accommodate a returning 

disabled service member otherwise entitled to reemployment

---- A returning service member may have rights under USERRA based on a 

service-related disability that is not permanent. A service member who 

incurs a temporary disability may be entitled to interim reemployment 

in an alternate position provided he or she is qualified for the position 

and the disability will not affect his or her ability to perform the job. If 

no such alternate position exists, the disabled service member would be 

entitled to reinstatement under a “sick leave” or “light duty” status until 

he or she completely recovers.

---- If disability is such that it cannot be accommodated and disqualifies the 

person from their pre-service job, the employer is required to reemploy 

the person in some other position which is most similar to the position 

to which they are otherwise entitled in terms of seniority, status, and pay

-- A person reemployed by an employer shall not be discharged, except for cause:

--- Within 1 year from being reemployed, if continuous service in the uniformed 

services was more than 180 days

--- Within 180 days from being reemployed, if continuous service was 31-180 

days

--- No special protection exists for service of 30 days or less

-- Prohibition of discrimination or reprisal

--- An employer cannot deny initial employment, reemployment, retention, 

promotion, or any benefit of employment because of a person’s service or 

application to serve in the uniformed services
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 493

--- An employer also may not take adverse employment action against a person 

because they either take enforcement action under USERRA, testify or assist 

in an USERRA investigation, or exercise any right under USERRA

Assistance and Enforcement

- The Veterans’ Employment and Training Service within the United States Department 

of Labor will assist persons claiming rights under USERRA, including persons claiming 

rights with respect to the federal government as a civilian employer

- The office of Employer Support for the Guard and Reserve (ESGR) will also assist 

service members in enforcing USERRA, 1-800-336-4590

References

Uniformed Services Employment and Reemployment Rights Act 

38 U.S.C. §§ 4301–4335

32 C.F.R. Part 104

20 C.F.R. Part 1002

Veterans’ Employment and Training Service, 70 Fed. Reg. 7224-01 (February 11, 2005)

DoDI 1205.12, Civilian Employment and Reemployment Rights for Service Members, Former 

Service Members and Applicants of the Uniformed Services (24 February 2016)

Memorandum from the Assistant Secretary of the Air Force, Civilian Reemployment Protections for 

Air Force Military Personnel, 25 October 2011
494 The Military Commander and the Law

UNIFORMED SERVICES FORMER SPOUSES’ 

PROTECTION ACT (USFSPA)

In 1982, Congress passed the USFSPA to provide certain benefits to the former spouses 

of military members. Generally, the USFSPA allows courts to treat military retired pay 

as property subject to division in a divorce and provides certain additional benefits to 

former spouses.

What USFSPA Does

- Under USFSPA:

-- State courts are allowed to divide disposable military retired pay between the 

member and spouse if the state court desires

-- Former spouses, in some circumstances, are able to receive a portion of the 

member’s retired pay directly from the government

-- Some former spouses are entitled to care at military medical facilities and access 

to military exchanges and commissaries

-- Former spouses may be beneficiaries under the survivor benefit plan (SBP)

-- Some victims of spousal or child abuse are also eligible for benefits

What USFSPA Does Not Do

- USFSPA does NOT:

-- Require courts to divide military retired pay

-- Establish a formula or award a predetermined share of military retired pay to 

former spouses

-- Place a ceiling on the percentage of disposable retired pay that may be awarded 

to a former spouse

-- Require an overlap of military service and marriage as a prerequisite to division 

of military retired pay as property
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 495

Division of Retired Pay

- If a court apportions retired pay between member and spouse, only “disposable 

retired pay” (DRP) may be divided

-- DRP is defined as the member’s monthly retired pay minus certain deductions, 

such as income tax withholdings, survivor benefit plan premiums, and, if the 

member is entitled to disability pay, the product of the member’s monthly retired 

pay multiplied by the percentage of his disability (provided the disability rating 

is less than 50%)

- Compensation not included in DRP, including disability compensation, is not subject 

to division by state courts

- Amounts paid directly to a former spouse from the government cannot exceed 50 

percent of member’s DRP

Additional Retired Pay Considerations

- Concurrent Retirement and Disability Pay (CRDP):

-- CRDP is Veterans Affairs (VA) disability paid to the member in addition to full 

retirement pay

-- Members with 20 years of qualifying military service and a VA disability rating of 

at least 50% may apply for CRDP

-- CRDP can also be divisible with a former spouse under a military pension division 

order

- Combat-Related Special Compensation (CRSC):

-- CRSC is disability compensation, not retired pay. As a result, it is not divisible 

with a former spouse.

-- CRSC rates are based on the VA tables and increase with the number of retiree’s 

dependents

-- A retiree cannot collect CRSC and CRDP at the same time; Defense Finance and 

Accounting Service (DFAS) makes the decision which is more beneficial to service 

member, regardless of whether there is a distribution to former spouse
496 The Military Commander and the Law

Survivor’s Benefit Plan (SBP)

- A state court can order the service member to designate the former spouse as SBP 

beneficiary

- Deemed election situation can occur if the member does not provide an agreement 

or court order to DFAS; the member could be deemed to have done so IF the spouse 

applies within 1 year of the court order

Jurisdiction under USFSPA

- USFSPA precludes a court from treating retired pay as the property of the member 

and their spouse unless the court has jurisdiction over the member based upon 

either:

-- The member’s residence, other than because of military assignment

-- The member’s domicile

-- The member’s consent to the court’s jurisdiction

Direct Payment of Retired Pay

- Direct payment of retired pay may be made to a former spouse from the military 

pay centers if:

-- There is a court order or a property settlement that has been ordered, ratified or 

approved by the court

-- The final order specifically provides that payment is to be made from disposable 

retired pay and is for either:

--- Child support

--- Alimony

--- Division of retired pay as property, if:

---- The former spouse was married to the member for 10 years or more, 

during which the member performed 10 years or more of creditable 

service, and
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 497

---- The order expresses payment in dollars or a percentage of the member’s 

disposable retired pay

- Direct payments terminate upon the earliest of three events:

-- Terms of court order satisfied

-- Death of the retired member

-- Death of the former spouse

Procedure to Request Direct Payment

- The former spouse must send the designated agent of the member’s uniformed 

service (for Air Force members, DFAS-CL) the following items:

-- A signed DD Form 2293, Application for Former Spouse Payments from Retired 

Pay; and

-- A copy of the court order and other accompanying documents that provide for 

payment of child support, alimony, or division of property. Any accompanying 

documents must be certified by an official of the issuing court.

- Notification to DFAS can be by regular mail, e-mail, fax or certified mail

- No later than 30 days after effective service, DFAS shall send written notice to the 

affected member at the last known address

- DFAS may reject any request for direct pay that does not satisfy the statutory 

requirements

- If the member responds to the notification, DFAS will consider the response and will 

not honor the court order whenever it is shown to be defective, modified, superseded, or set aside

- No later than 90 days after effective service, DFAS shall make payment to the former 

spouse and inform him or her of the amount to be paid. If the court order will not be 

honored, an explanation shall be sent as to why the court order was not honored.
498 The Military Commander and the Law

Domestic Abuse Cases

- Allows the former spouse to collect his/her portion of retirement pay (and other 

benefits) even though the service member does not retire because of adverse action 

based on domestic abuse

- Requirements:

-- Court order for portion of disposable retired pay as property settlement

-- Member eligible by years of service for retirement but loses right to retire due to 

misconduct involving dependent abuse

-- Person with court order is either victim of abuse or parent of the child who was 

the victim of the abuse

- Benefits:

-- Retirement pay determined by amount member would have received if retired

-- Other benefits: Base Exchange (BX), Commissary, medical and dental, legal 

assistance

- Procedures:

-- DFAS treats just like any other direct payment request

-- Must still meet 10 year test (10/10 spouse)

Reserve and National Guard Retirement

- Typically deferral of payment until 60 years old needs to be considered in divorce 

situations

- Early Retirement:

-- Reserve retired pay age may be reduced below age 60 by 3 months for each 

aggregate of 90 days active duty performed in support of a contingency during 

the same fiscal year

-- The age for retired pay cannot be reduced below the age of 50
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 499

-- Most active duty time qualifies, including training, operational support duties 

and school tours, provided such active duty is performed under the authority of 

10 U.S.C. Code § 12301(d)

Eligibility for Military Benefits

- 20/20/20 Spouse:

-- An unremarried former spouse receives medical, commissary, BX, and theater 

privileges under morale, welfare, and recreation (MWR) if qualifies as a 20/20/20 

spouse:

--- He or she was married to the military member for at least 20 years at the time 

of the divorce, dissolution or annulment

--- The military member has performed at least 20 years of service that is creditable in determining eligibility for retired pay (the member does not have to 

actually be retired from active duty); and

--- The former spouse was married to the member during at least 20 years of 

member’s retirement-creditable service

- 20/20/15 Spouse:

-- An unremarried former spouse may be eligible for limited medical benefits (but 

not BX or Commissary privileges) if qualifies as a 20/20/15 spouse:

--- He or she was married to the military member for at least 20 years at the time 

of the divorce, dissolution or annulment

--- The military member has performed at least 20 years of service that is creditable in determining eligibility for retired pay (the member does not have to 

actually be retired from active duty); and

--- The former spouse was married to the member during at least 15 years of 

member’s retirement-creditable service

- Restoration of Benefits:

-- Qualifying former spouses who have remarried may receive a restoration of some 

benefits upon the termination of that marriage by divorce or death. Medical benefits, however, are lost forever upon remarriage, unless the marriage is annulled.
500 The Military Commander and the Law

References

Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408 

10 U.S.C. § 1072, 1076, 1086a, 1413a, and 1414

10 U.S.C. § 12301(d)

32 C.F.R. Part 63.6

AFI 36-3026_IP, Volume 1, Identification Cards for Members of the Uniformed Services, Their 

Family Members, and Other Eligible Personnel (17 June 2009)

DD Form 2293, Application for Former Spouse Payments from Retired Pay (September 2013)
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 501

ENSURING THE FAIR HANDLING OF DEBT COMPLAINTS 

AGAINST SERVICE MEMBERS

Service members have the same legal rights under state and federal law as civilian consumers. It is important for commanders to understand that both law and Department 

of Defense (DoD) policy make a distinction between dealing with third parties who are 

“creditors” whom the debt originated with, and “debt collectors” who are in the business 

of collecting debts for another person or business.

- The Fair Debt Collection Practices Act (FDCPA) is a federal law that regulates how 

debts may be collected. The FDCPA regulates debt collection agencies and attorneys 

and does not apply to original creditors. A creditor is defined as a person or entity to 

whom or which a debtor owes money. Most major creditors, particularly credit card 

companies, have adopted collection policies that do not violate federal law. Original 

creditors are also regulated by state laws which may closely follow the FDCPA.

-- Debt collectors are in the business of collecting debts that are owed to creditors. 

This includes individuals, collection agencies, lawyers who collect debts on a 

regular basis, and companies that buy delinquent debts and then try to collect 

them. Debt collectors are strictly limited in how they conduct their activities, 

under both under the FDCPA and state law. Therefore, if a debt collector’s conduct violates the FDCPA, as noted in the following sections, it may also violate 

applicable state law.

- Specific procedures for commanders to address cases alleging personal financial 

indebtedness are outlined in AFI 36-2906, Personal Financial Responsibility

Debt Collector Communications with the Chain of Command

- The purposes of the FDCPA are to: (1) eliminate abusive debt collection practices; (2) 

ensure that those collectors who refrain from using abusive debt collection practices 

are not competitively disadvantaged; and (3) to promote consistent state action to 

protect consumers against debt collection abuses

- Accordingly, debt collectors are generally prohibited from contacting third parties—

including commanders and first sergeants—without a court order or the debtor’s 

prior consent given directly to the debt collector. This is because the debt collector 

should be dealing directly with the service member/debtor. There are two limited 

exceptions to this rule:

-- First, a creditor or debt collector can call and ask for the member’s contact information, but they are not permitted to identify themselves as someone calling 

regarding a debt
502 The Military Commander and the Law

-- Second, if the member has given them written permission after the debt was 

created

- Under these exceptions, debt collectors may only contact the command section 

and then only once. Absent these circumstances, a debt collector should not be 

contacting the command section.

- Furthermore, under DoD policy, the chain of command’s assistance in indebtedness 

matters shall not be extended to any creditors:

-- Who have not made a bona fide effort to collect the debt directly from the 

member;

-- Whose claims are patently false and misleading; or

-- Whose claims are obviously exorbitant

Debt Collector Communications with the Service Member/Debtor

- A debt collector is allowed to directly contact and communicate with a debtor, but 

the FDCPA limits where, when, and how these communications may occur. The FDCPA 

requires a debt collector to furnish a debtor with written notice of the debt within 

five days after first communicating with him/her.

-- The notice must identify the debt, the creditor, and how the debtor can require 

the debt collector to verify the debt (if the debtor believes payment has already 

been made or the amount of the debt is incorrect)

- If the debtor chooses to dispute the existence or amount of the debt, he/she must do 

so within 30 days of receiving this notice. Once a debt is disputed, the debt collector 

must stop communicating with debtor until the debt is verified and a copy of that 

verification is mailed to the debtor.

-- A debtor who refuses to pay a debt should make those intentions known to the 

debt collector in writing

-- Once the debt collector has written notification that the debtor does not plan to 

pay the debt, he/she should cease communications with the debtor. The debt is 

not forgotten, however, and a debt collector can still file a lawsuit to recover the 

amount that is owed. A debt collector may still communicate with a debtor for 

the limited purpose of notifying him/her of plans to pursue a lawsuit.
CHAPTER TEN Civil Law Rights and Protections of Military Personnel 503

Prohibited Debt Collector Communications

- The FDCPA prevents debt collectors from a number of illegal actions:

-- Harassing the alleged debtor or others

--- Includes threats of violence, use of obscene language, repeated or continuous phone calls, and threats to contact third parties

-- Debt collectors cannot contact the alleged debtor at unusual hours, such as 

before 0800 or after 2100

-- Failure to send the required notice

--- When a debt collector first contacts the alleged debtor, they must notify him 

or her within 5 days of (1) the amount of the debt, (2) name of the original 

creditor, (3) the right to dispute the debt, (4) the right to obtain validation 

of the debt, and (5) the right to obtain the name and address of the original 

creditor

-- Continuing to contact the consumer after receiving a notice from the consumer 

to cease all communication

--- If you notify a debt collector in writing to cease all further contact with you, 

their failure to honor this demand is a violation of FDCPA

-- Revealing the debt to third parties

--- Third-party contacts are generally unauthorized

-- Calling the consumer’s place of employment

-- Threatening dire consequences if the consumer fails to pay

--- Some debt collectors may falsely threaten lawsuit or other action that they do 

not intend to take. Others falsely threaten arrest or the seizure of property.

--- Creditors can obtain a judgment against the debtor for the debt they owe, 

but the creditor must first notify the debtor of the court action
504 The Military Commander and the Law

Remedies for Affected Service Members

- If a debt collector has violated the law, the debtor has the right to sue the collector 

in state or federal court within 1 year of the date the law was violated

- Any problems in dealing with debt collectors should be reported immediately to the 

base legal office. Additionally, service members may contact the Consumer Financial 

Protection Bureau, the state Attorney General’s Office, and the Federal Trade Commission for further assistance.

- Service members have the right to dispute a debt listed on their credit report, and to 

request a free copy of their credit report, in accordance with the Fair Credit Reporting 

Act

- Service members should consult with a legal assistance attorney before making payments to a debt collector and to find out more about their rights under applicable law

References

Fair Debt Collection Practices Act, 15 U.S.C. § 1692, as amended by Dodd-Frank Wall Street 

Reform and Consumer Protection Act of 2010, Pub. L. 111-203 § 1089

Fair Credit Reporting Act, 15 USC §§ 1681 et seq.

DoDI 1344.09, Indebtedness of Military Personnel (December 8, 2008)

AFI 36-2906, Personal Financial Responsibility (30 May 2013)
505

National Defense Areas.......................................................................................................................506

Posse Comitatus.....................................................................................................................................511

Air Force Safety and Accident Investigations..............................................................................514

Administrative Inquiries and Investigations................................................................................519

Allegations Against Senior Officials and Colonels (or Equivalents) ....................................522

Flying Evaluation Boards....................................................................................................................525

Commercial Activities..........................................................................................................................530

MWR and Nonappropriated Fund Instrumentalities................................................................536

Raffles........................................................................................................................................................539

Off-Limits Establishments..................................................................................................................542

Unofficial Activities/Squadron Snack Bars...................................................................................544

Acceptance of Volunteer Services...................................................................................................546

CHAPTER ELEVEN: CIVIL LAW ISSUES

11

FOR THE COMMANDER
506 The Military Commander and the Law

NATIONAL DEFENSE AREAS

Air Force commanders are charged with responsibility for protecting Department of 

Defense (DoD) resources under their control. The responsibility is not limited to resources 

located on federal land under DoD jurisdiction, but applies to such resources wherever 

they are located, whether on or off a military installation. For the most part, commanders 

rely on federal, state, and local civil authorities to protect off-base assets. However, when 

civil authorities are unavailable, unable, or unwilling to provide protection, it may be 

necessary to establish a National Defense Area (NDA), thereby enabling direct military 

protection of the assets concerned. The installation commander is ultimately responsible 

for the protection of military equipment, property, information, or personnel in the United 

States and its territories. If they are at risk off a military installation, the installation commander may declare an NDA to contain and secure the federal government resources.

- Definition: An NDA is an area established on non-federal lands and lands under the 

control of federal agencies other than the DoD located within the United States, its 

territories, or possessions for the purpose of safeguarding classified defense information or protecting DoD equipment or material

-- Establishment of an NDA temporarily places the land concerned under the effective control of the DoD

- Commanders of major commands, numbered air forces, wings, groups, installations, 

and designated DoD incident commanders for major accident responses, all have 

authority to establish NDAs

-- Once established, the commander has authority/responsibility to define the 

boundary, mark it with an appropriate barrier, and post warning signs

Rules For Establishing an NDA

- NDAs may only be established within the United States, its possessions, or territories. 

They are not applicable in overseas areas.

- NDAs may only be established under emergency situations

-- Examples include aircraft crashes, emergency landings by aircraft carrying nuclear 

weapons, emergency diversions of military aircraft to civilian airports, and accidents involving temporary immobilization of nuclear weapons ground convoys

-- Planned rest stops are not emergencies
CHAPTER ELEVEN Civil Law Issues for the Commander 507

- Size, shape and location of the NDA must be reasonably related to what is needed 

to protect the resource concerned

-- Boundaries should be clearly defined, preferably by some form of temporary 

barrier, such as rope or wire

-- Warning signs should be posted at each entry control point and along the 

boundary

- To the extent possible, the consent and cooperation of the landowner should be 

sought when establishing an NDA

-- However, military necessity ultimately drives the location, size, and shape of an 

NDA, and it may be established with or without the owner’s consent

- Because the NDA effectively deprives the landowner of the use of the property during the period the NDA is in existence, the Air Force may have to compensate the 

landowner for the temporary “taking” of the property

- Commanders should consult with their servicing staff judge advocate (SJA) when 

deciding to establish, disestablish, or modify an NDA

Airspace Considerations

- If a commander determines it is necessary to establish a NDA, the commander should 

also consider whether airspace restrictions are necessary

- If airspace restrictions are deemed necessary, commanders may request the Federal 

Aviation Administration (FAA) impose a Temporary Flight Restriction (TFR)

-- TFRs are regulatory actions issued via a Notice to Airmen (NOTAM) to restrict 

certain aircraft from operating within a defined area, on a temporary basis

- FAA regulatory guidance pertaining to TFRs is located primarily in 14 C.F.R. Part 91, 

specifically Sections 91.137 – 91.145 

-- One section likely to be applicable when a NDA is established is 91.137, Temporary Flight Restrictions in the Vicinity of Disaster/Hazard Areas, which authorizes a 

TFR to be established in order to (among other things) “[p]rotect persons and 

property on the surface or in the air from a hazard associated with an incident 

on the surface” (14 C.F.R. § 91.137(a)(1))
508 The Military Commander and the Law

- In addition, pursuant to 14 C.F.R. § 99.7, Special Security Instructions, the DoD can 

request a TFR for a “defense area”

-- A “defense area” for purposes of this C.F.R. provision is any airspace of the United 

States “in which the control of aircraft is required for reasons of national security” 

(14 C.F.R. § 99.3)

- The FAA may impose TFRs for a number of reasons, to include reasons of national 

security (see FAA Advisory Circular (AC) No. 91-63C, Temporary Flight Restrictions). 

AC 91-63C clearly states that a TFR can be requested by, among other entities, a 

military command.

Enforcement

- Commanders have the authority to prohibit entry into NDAs and to remove those who 

enter without authority, using the minimum force reasonably necessary to prevent 

violation of the NDA and to protect the DoD resources concerned

- Apprehension or detention of civilian personnel who violate the security requirements of the NDA should normally be done by civilian law enforcement authorities

- If civil authorities cannot or will not provide assistance, on-scene military personnel 

may detain civilian violators or trespassers and escort them from the NDA

- Civilian offenders detained by military personnel should be released to proper civil 

authorities as quickly as possible; coordinate with the servicing SJA

- Military action to detain civilian violators is limited to the NDA and the immediate 

boundary area

-- Pursuit of civilian offenders by military authorities beyond the immediate area 

should be left to the responsibility of civil law enforcement authorities

- Observed violations of FAA-imposed TFRs should be reported to the FAA for enforcement action
CHAPTER ELEVEN Civil Law Issues for the Commander 509

Media Relations

- Incident commanders should be sensitive to interests of the media, and should limit 

photography only as much as necessary to protect classified information

-- For example, rather than prohibiting all photography, it may be sufficient to simply 

limit photography to those angles or distances which would not result in exposure 

of classified information 

- Media representatives should be briefed on appropriate disclosable information 

during a nuclear accident or incident and the procedures to be followed, such as 

escort requirements

- If the off-base site is designated as an NDA, support news media representatives as 

on a military installation

- If an NDA has been established, military authorities may use reasonable force to 

prevent photography by anyone within the NDA, to apprehend or detain offenders, 

and to seize film and equipment

-- If photography is done from outside the NDA, civilian authorities should handle 

the matter

- If an NDA has not been established, military authorities at off-base locations may not 

use force, but should ask civilian law enforcement officials to stop further filming of 

exposed classified information, and to collect all photographs already taken

- If civil authorities are unwilling or unable to assist, the commander concerned should 

contact the managing editor or director of the news agency employing the photographer, request return of the film suspected of containing classified information, and 

explain that failure to return the film may constitute a violation of federal law
510 The Military Commander and the Law

References

18 U.S.C. § 1382

50 U.S.C. § 797

14 C.F.R. 99.3, 99.7

DoDI 5200.08, Security of DoD Installations and Resources (10 December 2005), incorporating 

through Change 3 (20 November 2015)

Directive-Type Memorandum (DTM) 09-012, Interim Policy Guidance for DoD Physical Access 

Control (8 December 2009), incorporating through Change 6 (20 November 2015)

AFI 10-2501, Air Force Emergency Management (EM) Program Planning and Operations 

(19 April 2016)

AFI 31-101, Integrated Defense (FOUO) (8 October 2009)

AFI 31-118, Security Forces Standards and Procedures (5 March 2014), incorporating Change 1 

(2 December 2015)

AFI 35-101, Public Affairs Responsibilities and Management (12 January 2016)

AFI 35-104, Media Operations (13 July 2015)

FAA Advisory Circular (AC) No. 91-63C, Temporary Flight Restrictions (20 May 2004)
CHAPTER ELEVEN Civil Law Issues for the Commander 511

POSSE COMITATUS

The Posse Comitatus Act

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse 

comitatus or otherwise to execute the laws shall be fined under this title or imprisoned 

not more than two years, or both.

Punishment for Violations

- Possible sanctions for violating the Posse Comitatus Act

-- Fine and/or 2 years imprisonment

-- Suppression of evidence illegally obtained

--- Court may let the accused go free

--- So far, the courts have been reluctant to grant this remedy. However, in recent 

cases, some courts have warned that repeated violations of the Posse Comitatus Act could lead to application of the exclusionary rule in some cases.

What Posse Comitatus Prohibits

- Prohibitions: The armed services are precluded from assisting local law enforcement 

officials in enforcing civilian laws, except where authorized by the Constitution or 

act of Congress

-- By its terms, the Act applies only to the Army and Air Force

-- The Navy and Marine Corps follow the Act by Department of Defense (DoD) 

policy (policy enacted pursuant to Congress’s direction)

-- The Act applies to the Reserves and to the National Guard while in Title 10 (federal) service, but not to the National Guard while in Title 32 or State Active Duty 

(SAD) status

-- The Act DOES NOT apply to the Coast Guard

- Does not apply to off-duty conduct, unless induced, required, or ordered by military 

officials
512 The Military Commander and the Law

- The act does not apply to civilian employees, unless acting under the direct command 

and control of a military officer

Exceptions to Posse Comitatus

- Statutory Exceptions: By its terms, the Act does not preclude support “expressly 

authorized by the Constitution or Act of Congress.” Congress has enacted a number 

of statutory provisions falling into this category.

- Several statutes authorize the military to engage in actions that would otherwise 

violate the Posse Comitatus Act

-- 10 U.S.C. § 371: 

--- Allows the military to provide to local law enforcement officials any law 

enforcement information collected “during the normal course of military 

training or operations”

--- Requires the military to consider the needs of local law enforcement when 

planning training missions

--- Moreover, it mandates turning over information relevant to drug operations 

unless doing so would threaten national security

-- 10 U.S.C. § 372:

--- Allows the military to loan any equipment, base facility, or research facility 

to local law enforcement, although the military may charge for its use (see 

10 U.S.C. § 377)

--- Loan of “arms, ammunition, tactical-automotive equipment, vessels and aircraft” requires proper coordination

-- 10 U.S.C. § 373:

--- Makes military personnel available to train federal, state, and local civilian law 

enforcement officials on operation and maintenance of equipment properly 

loaned under 10 U.S.C. § 372, and to provide expert advice to such officials
CHAPTER ELEVEN Civil Law Issues for the Commander 513

-- 10 U.S.C. § 374: 

--- Allows the Secretary of Defense to make military personnel available to operate and maintain loaned equipment under 10 U.S.C. § 372

- The military is still prohibited from enforcing civilian laws. The military may not participate in a search, seizure, arrest, or similar activity in support of local law enforcement 

unless participation in such activity is otherwise authorized by law (10 U.S.C. § 375).

-- The military can execute the civilian laws on the installation for a military purpose

-- Even on the installation, the military “detains” civilians before turning them over 

to civil authorities. The military does not arrest or apprehend civilians. This is a 

critical distinction.

- The military may engage in humanitarian acts such as looking for a lost child or rescuing civilians from a destroyed building 

-- However, the courts will examine humanitarian acts to ensure the military is not 

engaging in a subterfuge to disguise a Posse Comitatus Act violation

Posse Comitatus is Still a Modern Problem

- Despite the fact that the law’s origins go back to the Civil War, Posse Comitatus is still 

an issue that surfaces fairly frequently

- For example, in the immediate aftermath of the Oklahoma City bombing, the Posse 

Comitatus Act was determinative in responding to civilian law enforcement agency 

requests for assistance from the military

References

10 U.S.C. § 371

10 U.S.C. § 372

10 U.S.C. § 373

10 U.S.C. § 374

10 U.S.C. § 375

The Posse Comitatus Act, 18 U.S.C. § 1385

DoDI 3025.21, Defense Support of Civilian Law Enforcement Agencies (27 February 2013)

AFI 10-801, Defense Support of Civil Authorities (23 December 2015)

AFI 31-118, Security Forces Standards and Procedures (5 March 2014), incorporating Change 1, 

2 December 2015
514 The Military Commander and the Law

AIR FORCE SAFETY AND ACCIDENT INVESTIGATIONS

Introduction

- AFI 91-204, Safety Investigations and Reports, and AFI 51-503, Aerospace and Ground 

Accident Investigations, are the two most important instructions dealing with investigating accidents involving aircraft, missiles, or nuclear resources 

-- Additionally, AFI 51-503 deals with investigating accidents occurring on land and 

on water, not involving aircraft, missiles or other aerospace assets

- Safety investigations, conducted by a safety investigation board (SIB), determine 

cause to prevent future mishaps

- The deliberations, opinions, and conclusions of investigators and any evidence from 

witnesses and contractors given under a promise of confidentiality are in Part II of 

the safety mishap report

-- Part II is privileged and not releasable outside safety channels

- Aircraft accident investigations, conducted by an accident investigation board (AIB), 

and ground accident investigations, conducted by a ground accident investigation 

board (GAIB), provide fully releasable reports, which include the non-privileged Part I 

of the safety mishap report, and preserve evidence for litigation, claims, disciplinary 

action and adverse administrative action

- By providing an alternate source of non-privileged information for use outside safety 

and operational channels, the integrity of the safety privilege is protected

Safety Investigations under AFI 91-204

- A SIB is composed of a board of officers or an investigating officer

-- NOT for disciplinary actions, line-of-duty determinations, flying evaluation 

boards, litigation, claims, or assessing pecuniary liability (for or against the 

government)

-- Witnesses are not sworn

-- A SIB may offer a promise of confidentiality to witnesses or contractors if necessary and authorized
CHAPTER ELEVEN Civil Law Issues for the Commander 515

-- A safety report is barred from use in claims and litigation for or against the United 

States even if it favors the Air Force

-- In United States v. Weber Aircraft Corp., 465 U.S. 792 (1984), the Supreme Court 

upheld the privileged nature of safety reports (Part II)

Potential Problems with Safety Investigations

- Misunderstanding: Misunderstanding the purpose and use of information

- Interface with Accident Investigators:

-- Part I of the safety report consists of non-privileged factual information and is 

releasable to the accident investigators

-- The safety investigation has priority over the accident investigation on wreckage, 

witnesses, and documents

- Talking to the Next of Kin (NOK) of Mishap Victims:

-- Relatives should speak with the family liaison officer appointed by the 

commander

-- Do not discuss mishap responsibility, legal liability, classified information, or cause 

factors. The AIB president or GAIB president will brief the AIB or GAIB report to 

NOK and discuss any causal findings at that time.

-- Provide non-privileged information only

-- Use caution: it is easy to invite claims and lawsuits

- Requests for Information:

-- Determine whether the requester is asking for the SIB report or a GAIB or AIB 

report

-- For SIB reports, the disclosure authority is the Commander, Air Force Safety Center. The office of primary responsibility (OPR) is HQ AFSEC/JA.

-- For AIB and GAIB reports, direct requests to the convening authority responsible 

for initiating the investigation
516 The Military Commander and the Law

- Appearance of Improper Use: Creating the appearance of improper use of privileged 

safety information for disciplinary actions, flying evaluation boards, etc.

-- Imperative that commanders have “clean hands”

-- Document where you got the information to take action

- Criminal Misconduct: Safety investigations and potential courts-martial

-- Obtaining a conviction is extremely difficult if a safety investigation precedes the 

court-martial. The defense often requests the privileged portion of the report, 

resulting in potential litigation over its release.

-- If substantial evidence of criminal misconduct is present and the mishap cause 

is readily apparent, the convening authority should delay the SIB and proceed 

with the AIB or GAIB

Accident Investigations

- Accident investigations under AFI 51-503 are required in all Class A accidents except 

Class A accidents in which remotely piloted subscale aircraft and aerial targets are 

destroyed or in cases resulting in only damage to government property and the 

aircraft is not destroyed 

-- Class A accidents include:

--- Cases where an injury or occupational illness results in a fatality or permanent 

total disability

--- Cases where an Air Force aerospace asset is destroyed

--- Cases with a probability of high public interest

--- Mishaps when claims and litigation are anticipated for or against the U.S. 

Government or a U.S. Government contractor as a result of the mishap

--- Mishaps causing significant civilian property damage

- Accident investigations otherwise not required may be convened at the convening 

authority’s discretion for any occurrence considered an “accident” or “mishap”
CHAPTER ELEVEN Civil Law Issues for the Commander 517

Accident Investigation Responsibilities:

- Convening Authority: The MAJCOM commander who convened or would have convened the preceding safety investigation under AFI 91-204, delegable to the major 

command vice commander

-- Convenes investigation

-- Ensures appropriate condolence letters are sent to NOK. Also, sends letter to the 

NOK of deceased and seriously injured personnel explaining process and status 

of ongoing investigations and of any planned NOK briefings.

-- Funds costs associated with conducting AIB

-- Determines what accident information may be released to the public prior to 

completion of the AIB Report

-- Approves the AIB report and public affairs office (PA) notification and release plan

-- High-interest mishaps (defined in para. 7.3 of AFI 51-503) must be coordinated 

and staffed by the convening authority’s staff judge advocate through AFLOA/

JACC and AF/JA for review by the Secretary of the Air Force (SecAF) and the Chief 

of Staff of the Air Force (CSAF) and the Chief of Staff at least 4 duty days prior to 

public release and NOK briefing

- Installation Commander:

-- Appoints a host installation liaison officer to assist the AIB in obtaining accommodations and administrative support, as well as arranging witness interviews

-- Provides in-house facility, communications, supply, photography, and billeting 

support for the AIB

-- Removes and stores wreckage from the mishap site at the direction of the convening authority until AFLOA/JACC releases it from legal hold

-- Assists the convening authority with initial cleanup of the mishap site
518 The Military Commander and the Law

-- GAIB reports do not usually contain a statement of opinion, unless specifically 

authorized in advance by AFLOA/JACC

--- Unlike AIBs, opinions of GAIB board presidents are not statutorily protected 

and may affect the United States in litigation

--- A well-documented, thorough GAIB report should allow facts to speak for 

themselves in most instances

References

United States v. Weber Aircraft Corp., 465 U.S. 792 (1984) 

AFI 51-503, Aerospace and Ground Accident Investigations (14 April 2015)

AFI 91-204, Safety Investigations and Reports (12 February 2014), corrective actions applied on 

10 April 2014, including AFI 91-204_AFGM2016-02, 11 January 2016
CHAPTER ELEVEN Civil Law Issues for the Commander 519

ADMINISTRATIVE INQUIRIES AND INVESTIGATIONS

Commanders may be involved in or supervise several different types of investigative 

procedures. Reprisal against an individual for making a complaint is prohibited under 

10 U.S.C. § 1034.

Inherent Authority to Investigate

- All commanders possess inherent authority to investigate matters or incidents under 

their jurisdiction

- Authority to investigate is incident to command

- Air Force policy is that inquiries and investigations will be conducted by the echelon 

of command capable of conducting a complete, impartial, and unbiased investigation

- Commanders shall not investigate allegations concerning reprisal or restriction

- When a specific regulation does not apply, the investigation is conducted under the 

commander’s inherent authority 

-- AFI 90-301, Inspector General Complaints, provides guidance (e.g., procedures, 

format) on how to conduct a commander directed investigation or inquiry but 

AFI 90-301 SHOULD NOT be cited as the authority for the investigation or inquiry

Investigations Governed by Air Force Instructions

- AFI 90-301 provides guidance for investigations and inquiries

-- Only the Inspector General’s Office (IGs) may investigate allegations concerning 

reprisal and restriction

-- IG directed inquiries and investigations are privileged documents

--- The Inspector General controls release of those documents in accordance 

with Freedom of Information Act (FOIA) and Privacy Act (PA) requirements

- Other administrative investigations and inquiries, such as flying evaluation boards, 

aircraft mishap, ground accidents, reports of survey, line of duty determinations, etc., 

are governed by specific regulations (see the reference list at the end of this section 

for a sampling)
520 The Military Commander and the Law

Investigation Procedures

- Often conducted by a single investigating officer (IO) who is equal or senior in grade 

to the subject(s); and who gathers all necessary evidence (facts, documents, witness 

testimony) to help the appointing authority make an informed decision

- Generally, the standard of proof for administrative investigations and inquiries is by 

the preponderance of the evidence

- If the matter is more properly in the domain of Security Forces or the Air Force Office 

of Special Investigations (AFOSI) (suspected criminal activity, etc.), have them conduct the investigation

- Always consult with the servicing staff judge advocate before directing any inquiry 

or investigation

- The Chief of Staff of the Air Force (CSAF) Hand-Off Policy requires a person-to-person 

hand-off of all subjects, suspects, and distraught witnesses following investigative 

interviews. The individual’s commander or designee must be physically present 

immediately following the interview to receive the hand-off, and this hand-off must 

be documented at the end of the testimony.

- Inquiry Versus Investigation:

-- Inquiry: Determination of facts on matters not usually complex or serious; inquiries may be handled through routine channels, and reports may be summarized

-- Investigation: Appropriate for serious, complex matters requiring a determination 

of extensive facts. Investigations conducted under the commander’s inherent 

authority should include a written report. Normally, exhibits and sworn witness 

testimony support the facts that are determined.

Witnesses

- Must be advised of the nature of the investigation and, if applicable, their right to 

counsel

- Military members and Department of Defense (DoD) civilian employees have a duty 

to testify but may refuse to answer questions that are self-incriminating (by invoking 

Article 31 of the UCMJ or Fifth Amendment rights)
CHAPTER ELEVEN Civil Law Issues for the Commander 521

- Weingarten Rights for civilian employees may apply (see Chapter 15, Civilian Personnel and Federal Labor Law, for more information)

- IOs have no authority to grant express promises of confidentiality to subjects, suspects, complainants, or witnesses

References

Freedom of Information Act, 5 U.S.C. § 552

Privacy Act, 5 U.S.C. § 552a 

10 U.S.C. § 1034

NLRB v. Weingarten, 420 U.S. 251 (1975)

DoD 5400.7-R_AFMAN 33-302, Freedom of Information Act Program (21 October 2010), 

incorporating through Change 3 (16 May 2016)

AFMAN 23-220, Reports of Survey for Air Force Property (1 July 1996)

AFI 11-402, Aviation and Parachutist Service, Aeronautical Ratings and Aviation Badges

(13 December 2010), certified current 5 February 2013

AFI 31-115, Security Forces Investigations Program (10 November 2014)

AFI 33-332, Air Force Privacy and Civil Liberties Program (12 January 2015)

AFI 36-2706, Equal Opportunity Program Military and Civilian (5 October 2010), incorporating 

Change 1, 5 October 2011

AFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON), and 

Incapacitation (INCAP) Pay (8 October 2015)

AFI 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program (8 July 2014)

AFI 51-503, Aerospace and Ground Accident Investigations (14 April 2015)

AFI 51-904, Complaints of Wrongs Under Article 138, Uniform Code of Military Justice 

(28 July 2015)

AFI 71-101, V-1, Criminal Investigations Program (8 October 2015), certified current 

17 December 2015

AFI 71-101, V-2, Protective Service Matters (23 January 2015), certified current 17 December 2015

AFI 90-301, Inspector General Complaints Resolution (27 August 2015)

AFI 91-204, Safety Investigations and Reports (12 February 2014), corrective actions applied on 

10 April 2014, including AFI91-204_AFGM2016-02 (11 January 2016)
522 The Military Commander and the Law

ALLEGATIONS AGAINST SENIOR OFFICIALS AND 

COLONELS (OR EQUIVALENTS)

AFI 90-301, Inspector General Complaints Resolution, Chapters 4 and 5, establish strict 

reporting and investigation standards for allegations against senior officials.

Senior Officials

- Senior Officials Include:

-- Active or retired Regular Air Force, Air Force Reserve, or Air National Guard military officers in the grade of O-7 select and above

-- Air National Guard Colonels with a Certificate of Eligibility (COE)

-- Current or former members of the Senior Executive Service (SES) or equivalent

-- Current and former Air Force civilian Presidential appointees

- Investigative Policy: Unless otherwise specified by SAF/IG, all investigations into noncriminal allegations against senior officials will be conducted by SAF/IGS

- Reporting Policy: When a commander, civilian leading an organization (in accordance 

with AFI 38-101, Air Force Organization) or an inspector general (IG) receives an allegation of wrongdoing or adverse information involving a senior official, it must be 

reported to SAF/IGS immediately

-- Adverse Information: Defined by DoD policy as:

--- A substantiated adverse finding or conclusion from an officially documented 

investigation or inquiry; or

--- Any credible information of an adverse nature

---- To be credible, the information must be resolved and supported by a 

preponderance of the evidence

---- To be adverse, the information must be derogatory, unfavorable, or of a 

nature that reflects unacceptable conduct, or lack of integrity or judgment on the part of the individual
CHAPTER ELEVEN Civil Law Issues for the Commander 523

---- For the purposes of this definition, the following types of information 

are not considered adverse:

----- Motor vehicle violations that did not require a court appearance

----- Minor infractions without negative effect on an individual or the 

good order and discipline of the organization that was not identified as a result of substantiated findings or conclusions from an 

officially documented investigation, and did not result in more than 

a non-punitive rehabilitative counseling administered by a superior 

to a subordinate

--- Adverse information does not include:

---- Information previously considered by the Senate pursuant to the officer’s 

appointment

---- Information attributed to an individual 10 or more years before the date 

of the personnel action under consideration, except for incidents, which 

if tried by court-martial, could have resulted in the imposition of a punitive discharge and confinement for more than 1 year

-- IG officials who receive allegations against an Air Force senior official may inform 

their commanders only of the general nature of the allegations and the identity 

of the person against whom the allegations were made, without revealing the 

source of the allegations

-- SeniorOfficer Unfavorable Information File (SOUIF): A SOUIF is a written summary 

of adverse information about an officer, documentation of the command action, 

and any comments from the subject officer. The SOUIF is created solely for use 

during the general officer promotion/federal recognition process.

Colonels (or Equivalents)

- Colonels or Equivalents Include:

-- Regular Air Force, Air Force Reserve, or Air National Guard officer in the grade 

of O-6

-- An officer who has been selected for promotion to the grade of O-6, but has not 

yet assumed that grade

-- An Air Force civil service employee in the grade of GS-15
524 The Military Commander and the Law

- Reporting Policy: When a commander, civilian leading an organization (in accordance 

with AFI 38-101), or an IG receives an allegation of wrongdoing or adverse information (which is not obviously frivolous) involving a colonel or equivalent, it must be 

reported to SAF/IGQ immediately through their MAJCOM, forward operating agency 

(FOA), or designated reporting unit (DRU) channels

Military Equal Opportunity (MEO) Complaints

- MEO complaints against senior officials must be immediately referred to SAF/IGS

- MEO complaints against colonels (or equivalents) must be referred to the local IG (or 

SAF/IGQ if there is no local IG)

- SAF/IGS does not investigate civilian equal employment opportunity (EEO) or sexual 

harassment allegations against senior officials, those matters will be worked within 

the appropriate EEO channels. SAF/IGS does, however, investigate other military 

equal opportunity MEO allegations against senior officials.

References

AFI 36-2706, Equal Opportunity Program Military and Civilian (5 October 2010), incorporating 

Change 1, 5 October 2011

AFI 38-101, Air Force Organization (16 March 2011)

AFI 90-301, Inspector General Complaints Resolution (27 August 2015)
CHAPTER ELEVEN Civil Law Issues for the Commander 525

FLYING EVALUATION BOARDS

Aircrew members have an obligation to maintain professional standards. When performance of rated duty becomes suspect, a flying evaluation board (FEB) may be convened.

- Applies to rated officers, Career Enlisted Aviators (CEAs), and non-rated officer, enlisted 

aircrew members and civilian government employees only

- FEBs are administrative, fact-finding proceedings conducted to ensure information 

relevant to an aircrew member’s aviation and professional qualification is reviewed 

and discussed in a fair and impartial manner. The proceedings are not adversarial 

and are closed to the public.

- FEBs are not a substitute for disciplinary or other administrative action

Reasons to Convene a Flying Evaluation Board

- Suspension or disqualification from aviation service for more than 8 years

- Lack of proficiency (unless enrolled in a formal flying training program)

- Failure to meet training standards while enrolled in a U.S. Air Force formal flying 

training course

- Lack of judgment in performing rated duties

- Failure to meet ground/flying training or annual physical exam requirements

- Intentional violation of aviation instructions or procedures

- Aircrew member exhibits habits, traits of character, or personality characteristics that 

make it undesirable to continue using the aircrew member in flying duties

Composition of a Flying Evaluation Board

- A flying unit commander (wing or comparable level) normally convenes an FEB

- Three rated voting members, qualified for aviation service in an active aviation service 

code (ASC) and senior in rank to the respondent, will be appointed and will constitute 

a quorum

-- Voting members should be in the same aircrew specialty (e.g., pilot, navigator, 

or flight engineer) as the respondent
526 The Military Commander and the Law

-- To the greatest extent possible, at least one voting member should have the same 

primary duty Air Force Specialty Code (AFSC) as the respondent

- A recorder prepares the case by presenting the evidence and examining the witnesses in a non-adversarial manner

- The senior board member is a voting member and final authority regarding conduct 

at the board

- Do not appoint the convening authority as a member of the board. A judge advocate 

may advise the recorder but shall not be appointed as an assistant recorder.

-- The judge advocate may not be present during closed sessions

- Do not appoint enlisted members to FEBs convened for officers, or officers to FEBs 

convened for enlisted members

- One additional aircrew member is appointed to act as a nonvoting recorder

- A judge advocate may be appointed as a nonvoting legal advisor to advise on procedural matters and ensure a fair hearing. If appointed, a judge advocate may not 

be present at board sessions.

- A flight surgeon may be appointed as a nonvoting member when a medical problem 

may be a significant contributing factor

Flying Evaluation Board Procedures and Guidelines

- Notify the respondent in writing

-- Notification letter contains the reasons for the FEB, when and where the board 

will meet, witnesses to be called, and rights of the respondent. State the basis 

for convening the board and all allegations. 

-- The respondent must reply within 48 hours (2 duty days)

-- Normally, convene the board within 30 days after the convening authority 

appoints the board

- Respondent may submit a request for voluntary disqualification from aviation service 

in lieu of the FEB (VILO) within 5 workdays of receiving the FEB notification letter. FEB 

action is suspended until the MAJCOM acts on the VILO request.
CHAPTER ELEVEN Civil Law Issues for the Commander 527

- Respondent may also request a waiver of FEB to return to previously qualified aircraft 

if enrolled in flying training

-- An FEB waiver is considered an FEB action and requires the same coordination 

and approval as an FEB

-- FEB waiver process is not an appropriate means to disqualify a member

-- Convening authority will submit or forward waiver requests through command 

channels only when convinced the reviewing authorities would recommend the 

member remain qualified in the aircraft and/or crew position in which he/she 

was previously qualified

-- If there is any doubt regarding potential for continued aviation service, direct 

an FEB

-- Forward FEB waiver requests through command channels to the MAJCOM commander for final approval

Rights of the Respondent at a Flying Evaluation Board

- Assigned military counsel of his/her own choosing (if available) or civilian counsel 

(at respondent’s expense)

- Informed in writing of the specific reasons for convening the board

- Review all evidence and documents to be submitted to the board by the recorder 

(before convening the board)

- Challenge voting members for cause

- Cross-examine witnesses called by the board, call witnesses and present evidence 

(recorder arranges for military witnesses)

-- Although civilian witnesses may appear, an FEB cannot compel their attendance. 

Consult with the servicing staff judge advocate as to the procedures to request 

the presence of civilian Department of Defense (DoD) employees.

- Testify personally and submit a written brief (respondent may not be compelled 

to testify)
528 The Military Commander and the Law

Rules of Evidence

- A FEB is not bound by formal rules of evidence prescribed for courts-martial; however, 

observing these rules promotes orderly procedures and a thorough investigation

- The decision about the authenticity of documents rests with the senior board 

member

Findings and Recommendations

- Made in closed session (voting members only)

- Each finding must be supported by a preponderance of the evidence

- Findings must specifically include comment on each allegation or point in question

- Recommendations must be consistent with the findings and generally only address 

qualification for aviation service (i.e., remain qualified or be disqualified)

-- If the officer holds more than one aviation qualification, the FEB must make a 

recommendation as to both qualifications

-- If the FEB recommends disqualification, it may also recommend whether the 

officer should be prohibited from wearing the associated aviation badge

- A minority report is appropriate if there is a disagreement among the voting 

members

Review Process

- The convening authority’s staff judge advocate reviews for legal sufficiency; review is 

limited to sufficiency of the evidence and compliance with procedural requirements

- The convening authority adds comments and recommendations, but must explain 

any recommendations that are contrary to those of the FEB

- The convening authority or higher reviewer may reconvene the FEB or order a new 

board

- The MAJCOM commander makes the final determination in all FEB cases convened 

at the MAJCOM level or lower
CHAPTER ELEVEN Civil Law Issues for the Commander 529

Reference

AFI 11-402, Aviation and Parachutist Service, Aeronautical Ratings and Badges (13 December 

2010), certified current 5 February 2013
530 The Military Commander and the Law

COMMERCIAL ACTIVITIES

Private organizations (PO) and unofficial activities/organizations must not engage in 

activities that duplicate or compete with Army and Air Force Exchange Service (AAFES), 

activities, or Nonappropriated Funds Instrumentalities (NAFIs). This means POs and unofficial activities/organizations may not engage in frequent or continuous resale activities. 

However, the installation commander may authorize such things as continuous thriftshop sales operations, museum shop sales of items related to museum activities, and 

occasional sales for fund-raising purposes like bake sales, dances, carnivals, or similar 

occasional functions.

Department of Defense Commercial Sponsorship Program

- Commercial sponsorship is a DoD program that allows commercial enterprises to 

provide support to morale, welfare, or recreation (MWR) programs in exchange for 

promotional recognition and access to the Air Force market for a limited period of 

time. Such sponsorship helps finance enhancements for MWR elements of Services 

events, activities, and programs.

- There must be one or more bona fide MWR program events for sponsorship to apply

- Membership drives over extended periods can be treated as events for sponsor support and recognition purposes; however, sponsor displays can only be authorized at 

specific events during the drive

- MWR events appropriate for commercial sponsorship do not include normal day-today MWR management and overhead

- Only a Services MWR program may utilize commercial sponsorship

-- Other Air Force organizations, private organizations, or unofficial activities are 

not authorized to use commercial sponsorship to offset program or activity 

expenses nor may they partner with an MWR program to gain access to sponsorship benefits

- Installation commanders control the commercial sponsorship program at base level 

and approve/disapprove sponsorships worth $5000 or less (or other values as delegated by the major command)

-- Installation commanders may delegate authority for approval/disapproval of 

sponsorships and donations valued up to $5,000 to the Mission Support Group 

(MSG) Ccommander or Force Support Squadron (FSS) commander/director
CHAPTER ELEVEN Civil Law Issues for the Commander 531

Unsolicited Commercial Sponsorship

- Unsolicited commercial sponsorship must be entirely initiated by the prospective 

sponsors or their representatives

- FSS activities may generate sponsor awareness and interest by publishing brochures 

and leaflets, placing ads in newspapers and magazines, or issuing public affairs-like 

news releases about the existence and availability of the program. They may also 

send nonspecific letters as follow-ups to general advertisements.

- Air Force personnel may not provide information about specific needs of the Services 

MWR program to “encourage” offers of unsolicited sponsorship

- The prospective company and the Air Force will enter into a commercial sponsorship 

agreement (see AFI 34-108, Commercial Sponsorship and Sale of Advertising, Attachment 2)

Solicited Commercial Sponsorship

- Commercial sponsorship “refers to the act of a civilian enterprise providing support 

to help finance or provide enhancements for MWR elements of Services activities, 

events, and programs in exchange for promotional consideration and access to the 

Air Force market for a limited period of time” 

- The solicited commercial sponsorship program is the only authorized process for 

soliciting support for FSS activities, events, or programs defined as MWR 

-- Other sections of FSS as well as other Air Force organizations, units, private 

organizations, or unofficial activities or organizations are not authorized to use 

commercial sponsorship nor may they partner with an MWR program to gain 

access to sponsorship benefits

- The prospective company and the Air Force will enter into a commercial sponsorship 

agreement (see AFI 34-108, Attachment 2) 

- Per AFI 34-108, solicitations are part of the procurement process, and must be done 

competitively and sent to the maximum number of potential sponsors in a specific 

product category (except alcohol related companies or defense contractors) after an 

initial solicitation announcement has been made

-- The solicitation should inform the maximum number of potential sponsors, being 

announced in one or more of the following: Fed Biz Opps, local newspapers, 
532 The Military Commander and the Law

Chamber of Commerce newsletters, or other appropriate business community 

publications

-- Sponsorship may not be solicited from alcohol companies, or military systems 

divisions of defense contractors

--- However, unsolicited sponsorship from them may be accepted when 

approved at the discretion of the commanding authority (i.e., the commanding authority at the installation would be the installation commander)

--- Alcohol company/manufacturer sponsors must also provide a “responsible 

use” campaign logo/message to be included in all promotional materials and 

in banner form at the event site

On-Base Commercial Solicitation

- On-base solicitation is a privilege, not a right, granted at the discretion of the installation commander

- Personal commercial solicitation on an installation will be permitted only if the following requirements are met:

-- The solicitor is duly licensed under applicable laws

-- The installation commander permits it

-- A specific appointment has been made with the individual concerned and 

conducted in family quarters or other areas designated by the installation 

commander

Sponsor Recognition

- All sponsor recognition must be tied to an MWR activity, event, or program

-- Post-event recognition will be limited to “Thank you for your support” in ads, 

monthly publications, web sites, etc. 

-- Recognition for sponsors at places, times, unrelated to the activity, event, or 

program is prohibited
CHAPTER ELEVEN Civil Law Issues for the Commander 533

- Sponsorship recognition is limited to the sponsor’s name, logo, and/or a brief slogan. Materials may be displayed in appropriate FSS facilities. Materials may also be 

displayed in AAFES, Defense Commissary Agency (DeCA), and other appropriate 

on-installation locations with the approval and coordination of AAFES, DeCA, or 

other appropriate officials.

-- The display time for such materials is determined by the length of the event, 

program, or activity, the value of sponsorship, and the judgment of the entities

- Sponsors may provide event posters and banners identifying the sponsor or its products or services. While all commercial sponsorship signs, banners, etc., must contain 

disclaimers, normal concession type stands and distribution equipment used by the 

commercial sponsor do not need disclaimers when they identify the sponsor or its 

products (e.g., “Brand X Cola”) on the dispenser for cola products.

- Housing occupants may operate limited business enterprises while living in base 

housing limited to the sale of products, minor repair service on small items, limited 

manufacturing of items or tutoring.

-- Members must request permission in writing to conduct the commercial activity 

from the housing office

-- Occupants must meet local government licensing requirements, agreements, 

and host country business practices before requesting approval to operate a 

private business

Prohibited On-Base Commercial Solicitation

- Certain solicitation practices are prohibited on military bases, including, but not 

limited to:

-- Soliciting personnel who are on-duty

-- Soliciting any kind of mass audience, e.g., commanders call or guard mount

-- Soliciting in housing areas without an appointment

-- Soliciting door-to-door
534 The Military Commander and the Law

-- Implying DoD sponsorship or sanction

-- Soliciting members junior in grade

-- Procuring or supplying roster listings of DoD personnel

-- Using official ID cards by active duty members, retirees or reservists to gain access 

for soliciting

Games of Chance

- Bingo and Monte Carlo (Las Vegas) events are controlled by the Air Force Club Program

-- Games of chance must not otherwise violate local civilian laws

- Cash prizes may be awarded for bingo in accordance with AFI 34-272, Air Force Club 

Program, para. 3.17

- Play in bingo programs should be limited to eligible patrons, their family members, 

and guests

- Only non-monetary prizes may be awarded for Monte Carlo events, in accordance 

with AFI 34-272, para. 3.18

- Play in Monte Carlo events should be limited to club members and their adult family 

members, members of other clubs exercising reciprocal privileges and their adult 

family members, and adult guests

- Once a participant purchases a money substitute for a Monte Carlo event, no reimbursement can be made for any unused portion, and money substitutes can’t be 

used to buy resale items, including food and beverages

Raffles

- Occasional and infrequent raffles must be approved in advance by the installation 

commander, with the staff judge advocate’s advice. Raffles must not otherwise violate 

local civilian laws.

- For more information see Raffles section
CHAPTER ELEVEN Civil Law Issues for the Commander 535

References

DoDI 1000.15, Procedures and Support for Non-Federal Entities Authorized to Operate on DoD 

Installations (24 October 2008)

DoDI 1344.07, Personal Commercial Solicitation on DoD Installations (30 March 2006)

DoD 5500.7-R, Joint Ethics Regulation (30 August 1993), incorporating through Change 7, 

17 November 2011

AFI 32-6001, Family Housing Management (21 August 2006), incorporating through Change 5, 

3 September 2015

AFI 34-101, Air Force Morale, Welfare, and Recreation (MWR) Programs and Use Eligibility 

(28 March 2013), including AFI34-101_AFGM2016-01, 6 May 2016

AFI 34-108, Commercial Sponsorship and Sale of Advertising (12 October 2011)

AFI 34-144, Child and Youth Services (2 March 2016)

AFI 34-219, Alcoholic Beverage Program (4 February 2015)

AFI 34-223, Private Organizations (PO) Program (8 March 2007), incorporating Change 1, 

30 November 2010, certified current, 4 April 2011

AFI 34-272, Air Force Club Program (1 April 2002), incorporating through Change 3, 6 April 2010

AFI 36-3101, Fundraising within the Air Force (12 July 2002)

AFMAN 34-228, Air Force Club Program Procedures (1 April 2002), incorporating through 

Change 2, 25 March 2010
536 The Military Commander and the Law

MWR AND NONAPPROPRIATED FUND 

INSTRUMENTALITIES

Morale, Welfare, and Recreation (MWR)

MWR activities are those activities that provide for the comfort, pleasure and mental and 

physical improvement of authorized users. The activities include recreational and freetime programs, resale merchandise and services, and activities to promote the general 

interest. 

MWR activities are classified under a three-tiered system:

- MWR Category A – Mission support activities that are 100% supported by appropriated funds (APFs): Armed Forces entertainment program overseas, gymnasium/

fitness center/aquatic training/aerobic studios, general libraries, community center, 

parks and picnic areas, sports/athletics (self-directed, unit level, intramural), unit 

level programs and activities, Single Service Member Programs, Airmen and Family 

Readiness Center (A&FRC), isolated/deployed/free admission motion pictures, and 

common support services

- MWR Category B – Community support activities that are partially supported by APFs:

Child development centers, family day care programs, youth programs, recreation 

swimming pools, automotive skills development, arts & crafts, outdoor recreation 

programs (organized activities and undeveloped recreation areas), marinas without 

resale, equipment check out, recreation ticket and tour, amateur radio, government 

owned or leased riding stables, community programs, service member techno activities, directed outdoor recreation, entertainment (music and theater), bowling centers 

with less than 16 lanes, and sports competition above the intramural level

- MWR Category C – Revenue generating activities that are not supported at all by 

APFs: Clubs, golf courses, bowling centers with more than 16 lanes, marinas with 

resale or private boat berthing, equipment rental, aero clubs, rod and gun clubs, 

riding clubs, motorcycle clubs, parachute/ sky diving clubs, snack bars, restaurants, 

catering, audio/photo clubs, amusement machine locations and centers, skating 

rinks, unofficial commercial travel services, Armed Forces Recreation Centers, cabins/

cottages/cabanas/ recreational guest houses/family camps, bingo, motion pictures 

(paid admissions), scuba diving, vehicle storage, aquatics center

-- May be opened to the public if the following conditions are met:

--- The installation commander determines that adequate facilities are available and they are currently underutilized by higher priority users (must be 

re-certified every two years with AFPC/CC prior to expiration)
CHAPTER ELEVEN Civil Law Issues for the Commander 537

--- Allowing the public to use these facilities is beneficial to both the military 

members and civilians in the community

--- No conflict exists with federal, state, or local laws (including Status of Forces 

Agreements)

--- Written agreements are obtained from local businesses of like nature, local 

government officials, including the chamber of commerce, or other appropriate community leaders indicating they have no objection to expanded use 

of these programs

--- Authorization is limited to attendance and purchase of food and beverages, 

and convenience merchandise incidental to participation (such as golf tees 

and balls)

Nonappropriated Funds (NAF)

Generally, NAF are funds that are not appropriated by Congress and are not furnished 

from revenue derived from taxation. Although at times APFs can be permanently converted to NAFs, generally NAF are self-generated by Nonappropriated Fund Instrumentalities (NAFIs).

- NAFIs are Department of Defense (DoD) fiscal and organizational entities that exercise control over NAFs and furnish or assist other DoD organizations in providing 

MWR services

- NAFIs are instrumentalities of the federal government created by Air Force instructions. NAFI employees are federal employees with their own 401(k) plan.

- NAFIs are not incorporated under the laws of any state, but enjoy the legal status of 

an instrumentality of the United States, i.e., a lawsuit against a NAFI is a suit against 

the United States. NAFIs are not private organizations established under AFI 34-223, 

Private Organizations (PO) Program.

- The resource management flight chief (RMFC) is the appointed funds custodian 

responsible for protecting, accounting for and using NAFs

-- The RMFC is the single custodian for all base level NAFIs, except base restaurants, 

civilian welfare funds, and some NAFIs at remote or isolated sites

-- No individual or group has any right to ownership in NAFI assets
538 The Military Commander and the Law

- Benefits accrue to persons through participation in NAFI activities and programs

- NAFIs may not generally show movies; sponsor, conduct, or allow gambling; provide 

or sell alcoholic beverages; hoard or dissipate NAFI assets

- Army and Air Force Exchange Service (AAFES) is the primary source of resale merchandise and services for military personnel, dependents, and other authorized 

patrons

- NAFIs may engage in resale activities when FSS commander determines AAFES cannot meet the requirement in a responsive manner and the goods or services provided 

are directly related to the purpose and function of the NAFI involved

-- There must be a written agreement between the Force Support Squadron (FSS) 

commander and the regional vice president of the servicing exchange stating 

AAFES cannot meet the particular requirement

References

AFI 34-101, Air Force Morale, Welfare, and Recreation (MWR) Programs and Use Eligibility 

(28 March 2013), including AFI34-101_AFGM2016-01, 6 May 2016

AFI 34-201, Use of Nonappropriated Funds (NAFS) (17 June 2002)

AFI 34-223, Private Organizations (PO) Program (8 March 2007), incorporating 

Change 1, 30 November 2010, certified current 4 April 2011
CHAPTER ELEVEN Civil Law Issues for the Commander 539

RAFFLES

Generally, raffles and other forms of gambling are prohibited on Government property 

or while on official duty, per DoDI 5500.07-R, Joint Ethics Regulation (JER), section 2-302. 

This includes the Pentagon, Navy Annex, or General Services Administration (GSA) leased 

or owned buildings under 32 C.F.R. 234.16 and 41 C.F.R. 102-74.395.

- Officially recognized private organizations, as defined in AFI 34-223, Private Organization Program, may engage in raffles if they meet the requirements outlined below 

and in the AFI

- The installation commander may authorize occasional events for fund-raising 

purposes

-- The approval may be delegated to the mission support group commander or 

the FSS/CC/CL

-- “Occasional” is defined as not more than two per quarter, per AFI 34-223

- All Private Organization Raffles Must:

-- Not duplicate or compete with activities of the Army and Air Force Exchange 

Service (AAFES) or Service Nonappropriated Funds Instrumentalities (NAFIs)

-- Not directly solicit funds for their organization on base

-- Not be co-sponsored by the U.S. Air Force

-- Cannot use the Department of Defense (DoD) Moral, Welfare, Recreation (MWR) 

commercial sponsorship program

-- Not give the appearance of installation endorsement or special treatment to the 

donors/givers involved

-- Comply with the provisions of AFI 34-223, para. 10.16

- AFI 34-223, para. 10.16., Requires All Private Organization Raffles:

-- Be reviewed by the staff judge advocate (SJA)

-- Comply with the law of the city, county, state, or country in which the installation 

is located and comply with any applicable requirements of such laws
540 The Military Commander and the Law

-- Cannot be for purely social, recreational, or entertainment purposes that benefit 

only individual private organization members and/or their families

-- Must serve a charitable, civic, or other community welfare purpose within the 

DoD community and which direct benefits DoD personnel and/or their family 

members

-- Must identify the purpose of the funds raised and the beneficiaries

-- Must not be officially endorsed or supported except as permitted by JER sections 

3-210 and 3-211

-- Not be conducted in the workplace

-- Not be conducted by military members or civilian employees on duty time

- 5 C.F.R. 950.602 currently permits raffles and lotteries in support of the Combined 

Federal Campaign, but those rules are changing so consult with the SJA and updates 

to AFI 36-3101, Fundraising within the Air Force, before submitting any request for 

approval

- AFI 36-3101, para. 22.1., permits “special events” in support of the Air Force Assistance 

Fund (AFAF) campaign, but such events must comply with Federal, State and local 

laws and must not amount to gambling which is defined as:

-- Betting something of value (usually money);

-- In a game of chance;

-- That offers a reward or prize.

- For instance, a drawing using AFAF pledge slips, when it is clear there is no monetary 

contribution required to enter (i.e., one could enter the drawing merely by writing their name on a pledge slip), is not gambling because the participants are not 

required to furnish consideration to enter the drawing
CHAPTER ELEVEN Civil Law Issues for the Commander 541

References

5 C.F.R. § 950.602 

32 C.F.R. § 234.16

41 C.F.R. § 102-74.395

DoD 5500.7-R, Joint Ethics Regulation (30 August 1993), incorporating through Change 7, 

17 November 2011

DoD Standards of Conduct Office Advisory No. 10-06, 2010 Combined Federal Campaign 

(9 Sept. 2010)

AFI 34-223, Private Organizations (PO) Program (8 March 2007), incorporating 

Change 1, 30 November 2010, certified current, 4 April 2011

AFI 36-3101, Fundraising within the Air Force (12 Jul 2002)

HR Advisory Number: 2012-52, AFPC/DPIEPW, Duty Time to Support Fundraising within the Air 

Force (18 Oct 2012)
542 The Military Commander and the Law

OFF-LIMITS ESTABLISHMENTS

The establishment of off-limits areas is a function of command. It may be used by installation commanders to help maintain discipline, health, morale, safety, and welfare of 

service members. Off-limits action is also intended to prevent service members from 

being exposed to or victimized by crime-conducive conditions. Armed Forces Disciplinary 

Control Boards (AFDCBs) advise and make recommendations to commanders on matters 

including establishment of off-limits areas.

Armed Forces Disciplinary Control Boards

- AFDCBs are established under the provisions of Air Force Joint Instruction (AFJI) 

31-213, Armed Forces Disciplinary Control Boards and Off-Installation Liaison and 

Operations

-- AFDCBs may be local or regional; boards must meet quarterly

-- AFDCBs may recommend the installation commander place a civilian establishment or area off-limits to military members

-- The AFDCB is usually composed of a president and voting members, appointed 

by the commander, and representatives from various base functional areas, such 

as law enforcement; legal counsel; equal opportunity; public affairs; chaplains; 

consumer affairs; and medical, health, or environmental protection

- To place an establishment off-limits, the AFDCB normally must:

-- Notify the proprietor of the offending establishment, in writing, of the alleged 

condition or situation requiring corrective action

-- Specify in the notice a reasonable time for the condition or situation to be 

corrected

-- Provide the proprietor the opportunity to present any relevant information to 

the board

- If the AFDCB recommends an establishment be placed off-limits, the installation 

commander makes the final decision

-- A decision to place an establishment off-limits may be appealed to the next 

higher commander after exhausting any local appeal rights
CHAPTER ELEVEN Civil Law Issues for the Commander 543

-- The establishment remains off-limits until the decision is overturned or the commander determines adequate corrective action has been taken

Emergency Situations

- In emergency situations, commanders may declare establishments or areas temporarily off-limits to personnel of their respective commands. Follow-up action must 

be taken by AFDCBs as a first priority.

Commander Disciplinary Options

- Members who enter off-limits areas or establishments are subject to UCMJ action 

-- Family members of service members and others associated with the Service or 

installation should be made aware of off-limits restrictions

- Do not post off limits signs or notices in the United States on private property

- In areas outside of the continental United States, off-limits and other AFDCB procedures must be consistent with existing status of forces agreements (SOFAs)

Reference

AFJI 31-213, Armed Forces Disciplinary Control Boards and Off-Installation Liaison and Operations 

(27 July 2006), certified current 2 January 2014
544 The Military Commander and the Law

UNOFFICIAL ACTIVITIES/SQUADRON SNACK BARS

- Unit coffee funds, flower funds, or other small operations commonly known as “snack 

bar” funds are permitted when determined to be classified as unofficial activities 

with limited assets

-- Assets may not exceed a monthly average of $1000 over a 3-month period

-- When assets exceed the above figure, the snack bar must either become a private 

organization, discontinue its operations, or reduce its assets below the $1000 

threshold

- Installation and unit commanders must carefully review the status of all such unofficial activities operating on their installation and ensure their compliance with all 

applicable rules and regulations

- No such fund can duplicate or compete with an installation nonappropriated fund 

revenue-generating activity

- Unofficial activities may not engage in frequent or continuous resale activities

-- AFI 34-223, Private Organizations (PO) Program, permits occasional sales for fundraising purposes when approved in advance by the installation commander or 

designee 

--- “Occasional” is defined as not more than 2 fund-raising events per calendar 

quarter

--- The prohibition against frequent or continuous resale activities does not 

preclude collective purchasing and sharing of purchased items by members 

of private organizations or unofficial activities so long as there is no actual 

resale

--- See AFI 36-3101, Fundraising within the Air Force, for fundraising activity during the Combined Federal Campaign

-- Unit snack bars are subject to lawsuits and installation commanders may require 

private organizations to purchase liability insurance in an amount adequate to 

cover potential liability arising from their activities. Individual members of the 

unit/squadron could incur personal liability if not insured.
CHAPTER ELEVEN Civil Law Issues for the Commander 545

-- Snack bars must comply with all federal, state and local laws governing such 

activities, including federal tax laws

--- Interest from an interest bearing bank account must be reported to the IRS 

by the financial institution

--- Accordingly, it might be wise for the fund to utilize only a noninterest bearing 

account

- Unofficial activities/private organizations may not sell alcoholic beverages, solicit 

funds, operate amusement or slot machines, or conduct games of chance, lotteries, 

raffles, or other gambling-type activities

-- However, private organizations which are composed primarily of Department 

of Defense (DoD) personnel or their family members may conduct fund-raising 

raffles on an Air Force installation on an occasional, infrequent basis when 

authorized in advance by the installation commander or designee subject to 

the limitations detailed below

--- Such raffles provide a means of extending needed services or other assistance 

to members of the DoD family, but failure to strictly follow the provisions 

below could result in the raffles violating the general gambling prohibition 

in DoD 5500.7-R, Joint Ethics Regulation

-- All requests to conduct raffles must be reviewed by the servicing staff judge 

advocate

References

DoD 5500.07-R, Joint Ethics Regulation (30 August 1993), incorporating through Change 7, 

17 November 2011

AFI 34-223, Private Organizations (PO) Program (8 March 2007), incorporating Change 1, 

30 November 2010, certified current 4 April 2011

AFI 36-3101, Fundraising within the Air Force (12 July 2002)
546 The Military Commander and the Law

ACCEPTANCE OF VOLUNTEER SERVICES

Officers and employees of the federal government may not accept voluntary services 

exceeding that authorized by law except in emergencies involving the safety of human 

life or the protection of property.

- Acceptance of gratuitous services (when the provider agrees in writing and in 

advance to waive any right to compensation) is permissible

- Acceptance of gratuitous services may pose other issues, such as conflicts of interest, 

liability for damages or injuries both to and by the provider, or the illegal augmentation of another appropriation

- Government employees may not waive their rights to statutory entitlements. This 

issue may arise in connection with civilian employees and uncompensated overtime.

- Seek a staff judge advocate opinion any time free services are offered, unless you 

know they are specifically authorized by law

Types of Permissible Volunteer Service

- Military Services are specifically authorized by law to accept certain voluntary services, including medical, dental, legal, religious, family support, library, and morale, 

welfare, and recreation (MWR) services

- Volunteers providing services under authorized programs are considered federal 

employees only for purposes of compensation for work-related injuries, tort claims 

for damages or loss, maintenance of records, and conflicts of interest

-- The volunteer must have been acting within the scope of the accepted services

-- The volunteer will most likely be entitled to Department of Justice representation 

should he or she be named in an action filed under the Federal Tort Claims Act 

(FTCA)

-- A volunteer may not hold policy-making positions, supervise paid employees 

or military personnel, or perform inherently governmental functions, such as 

determining entitlements to benefits, authorizing expenditures of Government 

funds, or deciding rights and responsibilities of any party under Government 

requirements
CHAPTER ELEVEN Civil Law Issues for the Commander 547

-- Volunteers may be used to assist and augment the regularly funded workforce, 

but may not be used to displace paid employees or in lieu of filing authorized 

paid personnel positions

- Volunteers may be provided training related to their duties

- Volunteers may be provided official e-mail access using the Volunteer Logical Access 

Credential (VOLAC) program

- Volunteers may be provided access to Personally Protected Information (PII) if it is 

required for their duties and they are given proper training

- Properly licensed volunteers may use government vehicles (GOVs) if required for 

their duties

- Volunteers may be reimbursed for minor miscellaneous expenses they incur in the 

course of their duties

- Volunteers may use child care services in the installation Child Development Center 

(CDC) (space permitting) during the period of their duties

- All volunteers should sign the DD Form 2793, Volunteer Agreement for Appropriated 

Activities or Nonappropriated Fund Instrumentalities

- Federal agencies are specifically authorized by law to accept voluntary services provided by student interns as part of an established educational program

- Military services are statutorily authorized to accept services of Red Cross volunteers

- By a memorandum of understanding between the DoD and the Red Cross, Red 

Cross volunteers are generally considered government employees for purposes of 

the protections of the FTCA when acting in the scope of the services accepted by 

the DoD 

-- Volunteers accepted per 10 U.S.C. § 1588 are also generally considered government employees for purposes of the protections of the FTCA when acting in the 

scope of the services accepted by the DoD
548 The Military Commander and the Law

References

Federal Tort Claims Act, 28 U.S.C. § 1346(b) 

10 U.S.C. § 1588

31 U.S.C. § 1342

DoDD 1000.26E, Support for Non-Federal Entities Authorized to Operate on DoD Installations 

(2 February 2007)

DoDI 1100.21, Voluntary Services in the Department of Defense (11 March 2002), incorporating 

Change 1, 26 December 2002

AFI 51-502, Personnel and Carrier Recovery Claims (5 August 2016)

Memorandum of Understanding between the United States Department of Defense and the American 

Red Cross (March 2009) and http://download.militaryonesource.mil/12038/MOS/MWR/

PR000613-09REDXMOU.pdf
549

Introduction to Claims.........................................................................................................................550

Personal Property Claims....................................................................................................................551

Disaster Claims.......................................................................................................................................556

Tort Claims...............................................................................................................................................558

Aviation Claims......................................................................................................................................564

Foreign and International Claims....................................................................................................568

Property Damage Tort Claims in Favor of the United States.................................................573

Medical Cost Reimbursement Claims............................................................................................576

Article 139 Claims..................................................................................................................................579

Liability for Damage to Rental Vehicles.........................................................................................582

Reports of Survey (ROS)......................................................................................................................589

CHAPTER TWELVE: THE AIR FORCE

12

CLAIMS PROGRAM
550 The Military Commander and the Law

INTRODUCTION TO CLAIMS

- A claim is a demand made on or by the Air Force for the payment of a specified 

amount of money

- It does NOT include any obligations incurred in the regular procurement of services, 

supplies, equipment, or real estate

Air Force Claims Policy

- Establish and administer a vigorous Air Force claims program to investigate and 

process all claims on behalf of or against the Air Force

- Pay meritorious claims in the amount necessary to restore the claimant, as nearly as 

possible, to his/her position before the incident on which the claim is based

- The personnel claims process is not an adversarial one

-- The purpose of the Military Personnel and Civilian Employees’ Claims Act is to pay 

meritorious personnel claims fairly and promptly to maintain claimants’ morale 

and avoid their financial hardship

-- Claimants who have suffered loss or damage are entitled to helpful, friendly, and 

courteous service

Claims Jurisdiction and Settlement Authority

- Personnel claims are centrally adjudicated by the Air Force Claims Service Center 

(CSC), located at Wright-Patterson Air Force Base, Ohio

-- The DoD assigns single-service claims responsibility to each military department 

for processing and settling of tort claims for and against the United States arising 

in foreign areas. For example, the Army provides single service claims responsibility for all claims in South Korea.

References

The Military Personnel and Civilian Employees’ Claims Act, 31 U.S.C. §§ 3701, 3721 

DoDI 5515.08, Assignment of Claims Responsibility (11 November 2006) 

AFI 51-501, Tort Claims (15 December 2005)

AFI 51-502, Personnel and Carrier Recovery Claims (5 August 2016)

Air Force Claims Service Center, https://claims.jag.af.mil/
CHAPTER TWELVE The Air Force Claims Program 551

PERSONAL PROPERTY CLAIMS

The Personnel Claims Act (PCA) is a gratuitous payment statute. It does not provide 

insurance coverage and is not designed to make the United States a total insurer of the 

personal property of claimants. Payment does not depend on tort liability or government 

fault. Congress instead determined to lessen the hardships of military life by providing 

prompt and fair payment for certain types of property loss or damage, especially those 

caused by frequent moves. The Air Force aims, within approved guidelines, to compensate active duty members and civilian employees for property loss or damage to the 

maximum extent possible.

Introduction

- The Air Force Claims Service Center (CSC), located at Wright-Patterson Air Force Base, 

Ohio, centrally adjudicates all personnel claims

- Under the PCA, the Air Force may settle and pay claims for loss and damage of members’ personal property when such loss or damage is “incident to service”

- Not all property claims are covered

- Covered claims generally fall into three categories:

-- Household goods (PT) claims

-- Vehicle shipment (POV) claims

-- Other tangible personal property (P) claims

Requirements under the Statute

- The loss or damage must be incident to the member’s service

- The loss or damage cannot be recoverable through private insurance (limited exceptions apply)

- The claim must be substantiated

- The Air Force must determine that the member’s possession of the property was 

“reasonable or useful” under the circumstances

- The loss or damage must not have resulted from negligence of the claimant
552 The Military Commander and the Law

-- Other than household goods claims paid under the full replacement value program described below, maximum payment is $40,000, unless the claim arises 

from emergency evacuations or extraordinary circumstances in which cases the 

maximum payment is $100,000

Processing Guidelines

- Full Replacement Value (FRV) Program:

-- FRV applies to household goods shipments picked up on or after 1 October 2007. 

Under this program, members may first claim full replacement value for damaged 

or lost household goods directly with the carrier.

-- If a member cannot reach an acceptable settlement with the carrier on certain 

items, the member can file a claim with the CSC for the disputed items only. 

Standard depreciation rules will apply. The CSC will assert an FRV claim against 

the carrier, and if recovery is successful, will pass it on to the member.

-- If a member has a significant loss under FRV, they should be aware that the carrier’s maximum liability is $50,000 or $4.00 times the net weight of the shipment. 

In other words, if the member’s shipment weighs 10,000 pounds the carrier’s 

maximum liability is $40,000. The CSC can pay an additional $40,000 at depreciated value.

- FRV Program Filing Deadlines (from date of delivery):

-- The claimant files the “Notice of Loss/Damage After Delivery” in the Defense 

Personal Property System (DPS) within 75 days, placing the carrier on notice that 

additional loss or damage has been detected after delivery. Alternatively, the 

member can file directly with the carrier or with the CSC within 75 days.

-- This time limit may be extended for certain causes such as the member being 

on temporary duty (TDY) or hospitalized. The CSC will evaluate the cause and 

extend the deadline as appropriate.

-- The claimant must file a claim directly with the carrier within 9 months. If the 

claimant fails to file during this time, they may file the claim with the carrier or 

the CSC within 2 years, but standard depreciation rules will then apply.
CHAPTER TWELVE The Air Force Claims Program 553

- Defense Personal Property System (DPS):

-- The DPS system phased in for household goods moves between November 2008 

and summer 2011. Under this program, members file a claim in the DPS Claims 

Module.

-- A claimant will file a “Loss/Damage Report After Delivery” within 75 days (this 

takes the place of the DD Form 1840R) online within the DPS claims module. If the 

member cannot file the “Loss/Damage Report After Delivery” due to computer or 

other technical issues, the member should contact the CSC for guidance.

-- Similar to FRV, the claimant must file a claim against the carrier in DPS within 9 

months. If the claimant is dissatisfied with the carrier’s offer, he or she can transfer 

the items/file the claim with the CSC.

- Statute of Limitations and Other Important Time Periods:

-- A claim for a sum certain must be presented by the member (or authorized agent 

with a power of attorney) within 2 years from the incident date or date of delivery 

in accordance with the PCA. FRV is only available if filed within 9 months.

-- The 2 year statute may be extended, for good cause, during time of war. The CSC 

will determine whether good cause exists to extend the timeline.

-- The requirement to file the “Notice of Loss or Damage After Delivery” within 75 

days is separate from the requirement to file the claim within 2 years—damage for privately owned vehicles (POVs) is noted on DD Form 788 at the port. If 

additional damage is discovered after leaving the port, members should proceed 

to their local legal office as soon as possible, usually within 30 days, to complete 

an inspection and have photos taken.

Proper Claimants

- Active duty Air Force military personnel

- Retired or separated Air Force military personnel who suffer loss or damage resulting 

from the last entitled storage or movement of their personal property

- Air Force civilian employees paid from appropriated and nonappropriated funds. 

Claims filed by nonappropriated funds civilian employees are paid from nonappropriated funds.
554 The Military Commander and the Law

- Civilian employees of the Defense Commissary Agency (DeCA) who work on an Air 

Force installation

- DoD dependent school teachers and administrative personnel serviced by an Air 

Force installation

- Air Force Reserve (AFR) and Air National Guard (ANG) personnel when performing 

federally-funded active duty, full-time Guard duty, inactive duty for training, and ANG 

technicians serving under 32 U.S.C. § 709

- Air Force Reserve Officer Training Corps (AFROTC) cadets traveling at government 

expense or on active duty summer training

- United States Air Force Academy cadets

- Survivor of a deceased proper claimant or authorized agent or legal representative 

of a proper claimant

Payable Claims

- For loss or damage in the following general categories:

-- From government-sponsored transportation or storage under orders

--- Examples include household goods and unaccompanied baggage shipments, shipped vehicles, mobile homes and contents in shipment, and, 

in some circumstances, personally procured moves (PPM), also known as 

do-it-yourself (DITY) moves, luggage and hand-carried property

-- At quarters and other authorized places

--- Examples include fire, explosion, hurricane, theft, and vandalism in continental United States (CONUS) base housing or at overseas quarters either 

on- or off-base

-- To privately owned vehicles (POVs)

--- Examples include damage in shipment, theft or vandalism to parked cars, 

damage or loss during TDY where POV is authorized, and paint oversprays. 

Members should proceed to their local legal office as soon as possible to 

complete an inspection and have photos taken.
CHAPTER TWELVE The Air Force Claims Program 555

-- Other categories

--- As described in AFI 51-502, Personnel and Carrier Recovery Claims

- Uniform items damaged while performing normal duties are not payable

-- Claims for damaged or missing uniforms are not paid automatically. All claims 

must be investigated and any payment must be supported by the facts contained 

in the claim file. There should be no negligence or lack of due care on the claimant’s part, claimant must have done everything possible to “protect” the clothing 

items, and the damage cannot be a result of normal risks associated with daily 

work duties.

- To contact the CSC’s customer service, call DSN 986-8044 or commercial toll free 

1-877-754-1212. To file a claim on the world wide web, visit: https://claims.jag.af.mil/.

References

Military Personnel and Civilian Employees’ Claims Act (Personnel Claims Act), 31 U.S.C. §§ 3701, 

3721

32 U.S.C. § 709

DoDD 5515.10, Settlement and Payment of Claims Under 31 U.S.C. 3701 and 3721, “The Military 

Personnel and Civilian Employees’ Claims Act of 1964” (24 September 2004), Certified 

Current as of 31 October 2006

AFI 51-502, Personnel and Carrier Recovery Claims (5 August 2016)

AFMAN 23-110, USAF Supply Manual (1 April 2009), incorporating through Interim Change 5, 

1 July 2010

Air Force Claims Service Center, https://claims.jag.af.mil/
556 The Military Commander and the Law

DISASTER CLAIMS

Disasters come in all shapes and sizes at installations around the globe. From hail storms, 

floods, fire, tornados, hurricanes, ice storms, and high wind events, the Air Force Claims 

Service Center (CSC) and base legal offices work together when a disaster strikes to ensure 

Airmen and their families receive compensation for lost and destroyed personal property 

that is lost incident to service.

Disaster Claims Team

- A disaster claims team from the Air Force Legal Operations Agency, Claims and Tort 

Litigation Division is available to assist base legal offices in large disasters. The disaster 

claims team, along with reach-back support, or even on-site assistance from CSC 

personnel, will deploy to the disaster location at the request of the wing or installation 

commander.

- The CSC, with Defense Finance and Accounting Services (DFAS) support, can make 

emergency payments within 96 hours by electronic funds transfer (EFT). Alternatively, 

the CSC can provide the wing accounting liaison officer (ALO) an emergency funding 

document in order to make cash payments, if needed.

- If the claims team is deployed to the disaster location, CSC personnel, along with base 

legal personnel, will inspect and document damaged property, and assist Airmen 

and their families file claims. Claims must first be filed with any available insurance 

coverage. Claims filed against the Air Force are secondary.

- Affected Airmen and their families have 2 years from the date of the disaster to file 

their claims with the Air Force

- CSC contact information – DSN 986-8044, COMM 937-656-8044, toll free 1-877-754-

1212 or via e-mail at CSC.JA@us.af.mil
CHAPTER TWELVE The Air Force Claims Program 557

References

Military Personnel and Civilian Employees’ Claims Act (Personnel Claims Act), 

31 U.S.C. §§ 3701, 3721 

32 U.S.C. § 709 

DoDD 5515.10, Settlement and Payment of Claims Under 31 U.S.C. 3701 and 3721, “The Military 

Personnel and Civilian Employees’ Claims Act of 1964” (24 September 2004), Certified 

Current as of 31 October 2006

AFI 51-502, Personnel and Carrier Recovery Claims (5 August 2016)

AFMAN 23-110, USAF Supply Manual (1 April 2009), incorporating through Interim Change 5, 

1 July 2010

Air Force Claims Service Center, https://claims.jag.af.mil/
558 The Military Commander and the Law

TORT CLAIMS

Takeaways for Commanders

- Dependents, retirees, and nonaffiliated civilians may contact you to complain about 

accidents or injuries they have suffered. In those situations, you may inform them that 

it is their right to file a claim to seek compensation for their loss. You should refer them 

to your servicing staff judge advocate’s (SJA) office but do not make any promises 

or implications that their claim will be approved. There are numerous legal reasons 

a person’s claim may not be payable even though at first blush it may appear to be.

Introduction

- Under certain circumstances, federal law subjects the United States to liability for 

property damage, personal injuries, and death that result(s) directly from the negligent or wrongful acts/omissions of government personnel acting within the scope 

of their employment

- Federal law authorizes the United States to pay for property damage, personal injuries, and death that directly result(s) from “noncombat activities” of United States 

armed forces

- Normally, to receive compensation, an injured person or entity must present a signed 

written request for payment of a specific amount of money (claim) within 2 years of 

the accident or incident to the agency that created the loss, personal injury, or death

- In some cases, denial of a claim or failure to resolve a claim within 6 months after it is 

presented to the Air Force creates a right to sue the United States in federal district 

court

- Installation legal offices work with the Air Force Legal Operations Agency, Claims and 

Torts Litigation Division (JACC) to receive and process claims against the Air Force 

and help defend the Air Force when claims are litigated

Claims and Claimants

- Claims arising from alleged negligent or wrongful acts or omissions of government 

personnel are tort claims

- Common tort claims include government owned vehicle (GOV)-privately owned 

vehicle (POV) accidents, slips and falls on base, barrier or bollard accidents, medical 

malpractice, aircraft accidents, or mishaps with rental cars while on temporary duty 

(TDY)
CHAPTER TWELVE The Air Force Claims Program 559

- Claimants may be individuals, organizations, or companies that have suffered loss 

because of alleged negligent or wrongful acts or omissions by government personnel 

acting within the scope of their employment

- Claimants may also be agents, legal representatives, or persons with subrogation 

rights of the injured party

Payable Claims

- Claim must demand a specific amount of money and be signed by claimant or authorized agent

- Claim must allege damage to real or personal property, personal injury, or death

- Damage must be direct result of negligent or wrongful act or omission of government 

personnel acting within the scope of employment

- A negligent act occurs when a person’s failure to exercise the degree of care considered reasonable under the circumstances results in an unintended injury to another 

party

- Government personnel include Air Force military and civilian employees, Civil Air 

Patrol members performing Air Force authorized missions, and Air National Guard 

military members in federal status

- The base legal office determines (preliminarily) whether an employee acted within 

scope of employment after reviewing relevant facts, circumstances, and applicable law

-- Ordinarily, a person is within the scope of employment if the actions in question 

were serving some governmental purpose when the negligent act or omission 

allegedly occurred

-- Not a line of duty question

- Generally, the extent of government liability is about the same as that of a private 

person

-- For claims arising in the United States and its territories, liability is determined 

based on the law of the place (state) where the alleged negligent act or omission 

occurred
560 The Military Commander and the Law

-- For claims arising in foreign countries, liability is based on legal standards controlled by United States military regulation or policy, or applicable international 

agreements

-- The principles of absolute or strict liability do not apply

- If the loss, injury or death is the direct result of “noncombat activity,” the claim may 

be paid without regard to negligence or other fault

-- “Noncombat activity” is a term of art that means any activity, other than combat, 

war or armed conflict that is particularly military in character, has little parallel in 

civilian pursuits, and has been historically considered as furnishing the proper 

basis for claims. However, “noncombat activity” should not be interpreted as 

simply meaning, “not combat.”

-- Common “noncombat activities” include operation of military aircraft/spacecraft/

missiles, practice bombing or firing of heavy guns and missiles, movement of 

tanks, and explosive ordinance disposal (EOD) operations

Claims Not Payable

- Claims specifically excluded by statute

- Examples of excluded claims

-- Damages, injuries, or death that stem from the performance of or failure to 

perform a discretionary function by a federal agency or government employee

-- Intentional torts (acts that the person intends to commit) such as assault, battery, 

false imprisonment, false arrest, malicious prosecution, abuse of process, libel, 

slander, misrepresentation, deceit, or interference with contractual rights (claims 

may be payable with regards to acts or omissions of investigative or law enforcement officers of the United States Government arising out of assault, battery, false 

imprisonment, false arrest, abuse of process, or malicious prosecution)

-- Government taking of air space over land

-- Personal injury, death or property damage of a military member incurred incident 

to service
CHAPTER TWELVE The Air Force Claims Program 561

-- Personal injury or death of a civilian employee of the United States sustained 

while in performance of his/her duty

-- Punitive damages

Processing and Payment

- Installation legal office accepts, investigates, and adjudicates most tort claims 

alleging $5,000 or less in losses with the exception of personal injury and medical 

malpractice tort claims. Claims above $5,000 for personal injury or alleging medical 

malpractice at Continental United States (CONUS) locations are forwarded immediately to AFLOA/JACC.

-- All installation level claims, other than those settled under the Federal Tort Claims 

Act (FTCA) for more than $2,500, are paid from Air Force claims funds

--- If JA approves an FTCA claim for more than $2,500, payment comes from the 

Judgment Fund Group of the Department of the Treasury

-- Installation legal office consults with AFLOA/JACC prior to adjudicating claims 

alleging:

--- Personal injury

--- Legal malpractice

--- Property damage caused by an Air Force member driving a rental vehicle

--- Property damage that occurred in a navigable waterway (admiralty and 

maritime claims)

--- Property damage caused by activities of the Civil Air Patrol

--- Property damage or personal injury to wing commander, vice wing commander or their immediate family members

-- AFLOA/JACC investigates and takes final action on all medical malpractice claims 

arising within the United States. At USAFE bases and at PACAF bases outside the 

50 states, base legal offices investigate medical malpractice claims and forward 

the claims files to AFLOA/JACC for final action.
562 The Military Commander and the Law

- If installation legal office denies a claim, claimant may appeal or request reconsideration, depending on which statute dictates processing of the claim

-- Installation legal office can grant appeal or reconsideration request

-- Installation legal office must forward any appeal or reconsideration request it 

does not grant to AFLOA/JACC for final action

- CONUS installation legal offices accept claims alleging more than $5,000 in damages 

or personal injury, but immediately forwards them to JACC for adjudication

-- Installation legal office will appoint a point of contact (POC) (attorney or paralegal) within the installation legal office to work with AFLOA/JACC to investigate 

the claim

-- In some cases, installation POC will take a more proactive role in the adjudication process, to include legal research, drafting memoranda, and negotiating 

settlements, to provide training and increase experience for both attorneys and 

paralegals

- Outside the continental United States (OCONUS) installation legal offices accept, 

investigate, and may settle non-medical malpractice claims up to $25,000. Those 

claims not settled for less than $25,000 are forwarded to JACC with the full investigation and recommendation for final adjudication.

-- Before adjudicating a claim, OCONUS legal offices should ensure they have singleservice claims responsibility within the country they are located. If not, forward 

claims to the appropriate military service for investigation and adjudication.

- In certain cases, claimant may sue the Air Force within 6 months after final action is 

taken on the claim

-- Final action is taken by mailing the denial of claim or, when applicable, denial of 

a reconsideration request. Six months of no action may be deemed a denial by 

the claimant and he/she can file suit.

-- Suit is in federal district court. Department of Justice (DOJ) defends the Air Force 

in litigation. JACC works with the installation legal office to help DOJ defend 

litigation.

- Special procedures apply to claims arising in a foreign country. Installation legal 

offices coordinate with the Foreign Claims Branch of JACC when handling foreign 

and international claims.
CHAPTER TWELVE The Air Force Claims Program 563

References

Military Claims Act, 10 U.S.C. § 2733

Foreign Claims Act, 10 U.S.C. § 2734

International Agreement Claims Act, 10 U.S.C. §§ 2734(a) and (b)

National Guard Claims Act, 32 U.S.C. § 715

Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401, 2671-2680

AFI 51-501, Tort Claims (15 December 2005)
564 The Military Commander and the Law

AVIATION CLAIMS

- Aviation claims occur in a variety of ways, including claims arising from low overflights and sonic booms, and accidents involving active duty, Air Force Reserve (AFR), 

Air National Guard (ANG), Aero Club, and Civil Air Patrol aircraft

- If the claim arose from military flight activity, it may be payable under the “noncombat 

activity” provisions of the Military Claims Act (MCA) or the National Guard Claims Act 

(NGCA)

-- No requirement to show negligence in noncombat activity claims. Causation and 

damages are the only issues.

-- MCA/NGCA claimants may receive advance payments under certain circumstances, primarily for damage mitigation purposes

-- If the claim cannot be settled, the claimant may bring a lawsuit under the Federal 

Tort Claims Act (FTCA), unless otherwise exempted, but must prove negligence, 

causation, and damages

Sonic Boom and Low Overflight Claims

- Sonic Boom Damage:

-- Overpressures based upon speed, altitude and location of aircraft relative to a 

claimant’s property, in pounds per square feet, will determine whether claimed 

damage could have been caused by sonic boom

-- Sonic booms are not selective and may encompass an entire area. A sonic boom is 

unlikely to cause damage to a claimant’s home while having no effect on nearby 

properties.

-- Window glass and bric-a-brac are generally the first items to be damaged. A 

sonic boom is unlikely to cause significant structural damage, such as cracked 

foundations or sidewalks, without also breaking windows or shaking bric-a-brac 

from shelves.
CHAPTER TWELVE The Air Force Claims Program 565

- Low Overflight Damage:

-- Noise alone generally does not cause damage to property

-- Noise may harm animals, such as by stampeding cattle and horses; startling 

chickens, silver foxes, and minks; cracking exotic bird eggs; or injuring ostriches

-- Claims alleging loss of property value due to noise from repeated low overflights 

are not usually payable under any tort claims statute. The property owner’s remedy is a “takings” claim under the Fifth Amendment’s due process clause.

Aircraft Accident Claims

- ANG Claims:

-- Settlement authorities may settle claims for death, personal injury, or property 

damage arising out of the authorized noncombat activities of the ANG under 

the NGCA, 32 U.S.C. § 715

-- Determine status of crewmembers or ANG personnel involved in mishap

--- Title 10 – federal active duty orders

--- Title 32 – federally funded training orders (e.g., inactive duty training (IDT) 

or active duty training (ADT))

--- State duty – disaster response, riot control, emergency situations

-- The United States is only liable for negligence of ANG members performing 

federal duties under Title 10 or Title 32 at time of incident. The provisions do not 

apply when a member is performing duty for the state.

-- ANG aviation claims are adjudicated under the noncombat activity provisions 

of the MCA if the member was in Title 10 status, or the NGCA if the member was 

in Title 32 status

- AFR Claims:

-- Crewmembers have same status as active duty personnel

-- AFR aviation claims are usually adjudicated under the noncombat activity provisions of the MCA
566 The Military Commander and the Law

- Aero Club Claims:

-- Aero Club participation is a recreational activity, and the United States is not liable 

for the negligence of Aero Club members or participants while engaged in Aero 

Club activities because such activities are outside the scope of their employment

-- All Aero Club members and participants are covered under the National Association of Flight Instructors (NAFI) liability insurance for their negligence in causing 

a mishap

--- Look to NAFI insurance to pay third party claims caused by the negligence of 

Aero Club members or participants engaged in Aero Club activities

--- Not cognizable under Air Force claims statutes

-- Third-party claims arising from the negligence of Aero Club employees or military 

members working at the Aero Club in their official capacity are cognizable under 

the FTCA. Aero Club claims settled under the FTCA are paid from nonappropriated funds administered by USAF/JAA-S, Lackland Air Force Base, Texas.

-- The Feres doctrine bars active duty, guard and reserve military members from 

receiving compensation under federal claims statutes for death or injuries arising 

out of their participation in Aero Club activities. Such participation is deemed 

incident to their military service.

-- Similarly, the Federal Employees Compensation Act (FECA) bars Air Force civilian 

employees from receiving compensation under federal claims statutes for death 

or injuries arising from their participation in Aero Club activities

- Civil Air Patrol (CAP) Claims:

-- CAP is a federally supported, congressionally chartered, nonprofit civilian corporation, and a volunteer civilian auxiliary of the Air Force. Its mission is to provide 

aerospace education and training to its senior and cadet members, provide 

volunteer emergency services, and promote civil aviation in the public sector.

-- The Air Force is authorized to use the services of the CAP in fulfilling certain 

noncombat programs and missions of the Air Force that have been officially 

designated as Air Force Assigned Missions (AFAMs)

--- Typical AFAMs include support of homeland security, search and rescue, 

disaster relief, and counter-narcotics reconnaissance flights
CHAPTER TWELVE The Air Force Claims Program 567

--- CAP is an instrumentality of the United States when performing an AFAM

--- Third-party claims arising out of activities of CAP while performing AFAMs 

are cognizable under FTCA

--- Senior CAP members or CAP cadets (18 years or older) are covered under 

FECA for their death or injuries incurred while in the performance of an AFAM

-- The United States is not liable for third party claims arising out of CAP corporate 

activities or for claims for the use of privately owned property that CAP or its 

members use during AFAMs

References

Federal Employees Compensation Act, 2 U.S.C. § 431 et seq.

Military Claims Act, 10 U.S.C. § 2733 

Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 

National Guard Claims Act, 32 U.S.C. § 715 

AFI 51-501, Tort Claims (15 December 2005)
568 The Military Commander and the Law

FOREIGN AND INTERNATIONAL CLAIMS

Single Service Claims Responsibility

- DoDI 5515.08, Assignment of Claims Responsibility, assigns certain countries to each 

military department (Army, Navy, and Air Force) and makes the military departments 

responsible for final action on tort claims arising within their assigned countries. This 

instruction applies to numerous claims statutes, including the Foreign Claims Act 

(FCA), International Agreement Claims Act (IACA), Military Claims Act (MCA), Use of 

Government Property Claims Act (UGPCA), and Advance Payments Act (APA).

- Naval Forces Afloat Exception: Naval forces afloat visiting foreign ports may settle 

claims arising outside the scope of duty for under $2,500 without regard to single 

service assignment

- Not all countries are assigned under DoDI 5515.08. Claims arising in unassigned 

countries will be adjudicated by the command responsible for generating the claim. 

If the command is joint, the claim should be adjudicated by the service component 

command whose personnel allegedly caused the claim.

- Claims in foreign countries are settled under the regulations of the service having 

single service claims responsibility (DoDD 5515.3, Settlement of Claims Under Sections 

2733, 2734, 2734a, and 2734b of Title 10, United States Code) 

- DoD/GC can change assignments by updating DoDI 5515.08 or by interim letter

International Agreement Claims Act (IACA)–U.S. Military in Foreign Countries

- 10 U.S.C. § 2734a applies to acts and omissions of U.S. forces in foreign countries when 

the United States has a status of forces agreement (SOFA) with a foreign government 

and the SOFA explicitly provides for both governments to share the cost of any claim 

payout

-- Under the NATO SOFA, “receiving State” is the state receiving visiting forces and 

“sending State” is the state sending forces

-- For NATO SOFA claims against U.S. personnel in foreign countries, the United 

States would be the sending state

- Claims are adjudicated and paid by the receiving state (host nation), which sends the 

United States a bill for its pro rata share of any claim payout
CHAPTER TWELVE The Air Force Claims Program 569

-- Host nation must adjudicate the claim applying the same statutes it would apply 

if its own military had caused the damage

-- Host nation statute of limitations applies to these claims

-- If the host nation pays attorney fees as part of the settlement, the United States 

is obligated to pay its percentage of those fees

-- Claims caused by U.S. enemy actions or actions of U.S. forces in combat are not 

payable

- The United States currently has cost-sharing SOFAs with NATO members, many Partnership for Peace (PfP) countries, Portugal (for the Azores), Iceland, Japan, Korea, 

Australia, and Singapore

-- NATO SOFA and PfP SOFA (latter incorporates NATO SOFA by reference) are reciprocal, which means they apply to tortious incidents in the territories of all parties 

to the agreement

-- SOFAs with Iceland, Japan, Korea, Australia, as well as the Lajes Technical Agreement (for the Azores), are not reciprocal. They apply only to tortious incidents by 

U.S. personnel in these foreign countries.

-- Singapore Counter Agreement is also not reciprocal. However, it applies solely 

to tortious incidents by Singaporean personnel in the United States (see below 

“International Agreement Claims Act (IACA)—Foreign Personnel in the United 

States”).

-- U.S. reimbursement percentage is usually 75 percent, but this percentage can 

vary if more than one nation is responsible for the damage, injury, or death, or if 

a different cost-sharing arrangement has been negotiated

- The United States can object to a bill for reimbursement if the host nation paid a 

claim not cognizable under the SOFA or the host nation did not adjudicate the claim 

under the laws that would apply to its own military
570 The Military Commander and the Law

International Agreement Claims Act (IACA)–Foreign Personnel in the United States

- 10 U.S.C. § 2734b applies to acts of foreign forces in the United States when the 

foreign country has a SOFA with the United States and the SOFA explicitly provides 

for both governments to share the cost of any claim payout

-- For NATO SOFA claims against foreign personnel in the United States, the United 

States would be the receiving state

- Claims are adjudicated and paid by the United States as the host nation, which sends 

the responsible foreign country a bill for its pro rata share of any claim payout. The Air 

Force will investigate these claims to the extent they involve foreign military personnel or property involved in an Air Force activity, but only the Army is authorized under 

DoDI 5515.08 to settle (pay or deny) these claims.

-- The United States will adjudicate the claim applying the same statutes it would 

apply if its own military had caused the damage

-- U.S. statute of limitations applies to these claims

-- If the United States pays attorney fees as part of the settlement, the foreign 

country is obligated to pay its percentage of those fees

-- Claims caused by U.S. enemy actions are not payable

- Cost-sharing agreements with applicability in the United States include the NATO 

SOFA, PfP SOFA, and Singapore Counterpart Agreement

-- SOFAs with Japan, Korea, Australia, and the Azores are not reciprocal and apply 

only to tortious incidents arising in those countries

-- According to the United States State Department, NATO SOFA applies to Alaska, 

but not Hawaii

-- Foreign government reimbursement percentage is usually 75 percent, but this 

percentage can vary if more than one nation is responsible for the damage, injury, 

or death, or if a different cost-sharing arrangement has been negotiated

- Responsible foreign government can object to a bill for reimbursement if the United 

States paid a claim not cognizable under the SOFA or the United States did not adjudicate the claim under the laws that would apply to its own military
CHAPTER TWELVE The Air Force Claims Program 571

- Immediately notify JACC of any on-base or off-base incident involving foreign military 

personnel or property in the United States

Foreign Claims Act (FCA)

- 10 U.S.C. § 2734 applies only to claims arising abroad where the IACA is not applicable (IACA takes precedence over FCA). The Secretary of the Air Force (SecAF) has 

promulgated AFI 51-501, Tort Claims, as authorized by 10 U.S.C. § 2734, to implement 

Air Force policy under the FCA.

-- Use IACA where SOFA cost-sharing exists and damages, injury, or death are 

caused in the performance of official duty (as understood by the United States 

and the foreign government)

-- Use FCA where no SOFA cost-sharing exists or where damages, injury, or death 

arise outside the scope of employment

- Claimant must be a foreign inhabitant

-- U.S. military members, federal civilian employees, and dependents thereof are 

not foreign inhabitants

- Claims personnel must be appointed a Foreign Claims Commission (FCC) in order to 

act on an FCA claim (AFI 51-501 governs appointments/delegations of FCC authority)

- Two-year statute of limitations applies to FCA claims

- Damage, injury, or death must be either incident to a noncombat activity or caused 

(negligently or wrongfully) by a DoD military member or civilian employee

- Statutory exceptions to payment include claims by subrogees and acts of the United 

States in combat. However, a claim may be allowed if it arises from an accident or 

malfunction incident to operation of an aircraft of the armed forces of the United 

States, including its airborne ordnance, indirectly related to combat and occurring 

while preparing for, going to, or returning from a combat mission.

- Apply the law of the country where the incident occurs to the extent it does not conflict with AFI 51-501. If conditions for payment exist, and no basis under AFI 51-501 

prohibits payment, payment may occur. All payments are ex gratia and remain within 

the discretion of SecAF.
572 The Military Commander and the Law

- Claimants are paid in the currency of the country where the incident occurred unless 

JACC receives a compelling justification why payment should occur in some other 

foreign currency

Solatia (Rarely Justified)

- Solatium payment is a nominal payment made immediately to a victim or victim’s 

family to express sympathy. Paid with personal funds or command (O&M) funds, it is 

not compensation (thus not deducted from claim award) and is not subject to single 

service claims responsibility. Immediately report to JACC any attempt to pay solatia in 

a country where solatia has not been explictly authorized by U.S. military regulation 

as proof of clear custom must be established to justify such payment.

References

The Military Claims Act, 10 U.S.C. § 2733

Use of Government Property Claims Act 31 U.S.C. § 2737

Foreign Claims Act, 10 U.S.C. § 2734

International Agreement Claims Act, 10 U.S.C. §§ 2734(a) and 2734(b)

37 U.S.C. § 1006 

DoDD 5515.3, Settlement of Claims Under Sections 2733, 2734, 2734a, and 2734b of Title 10, 

United States Code (27 September 2004)

DoDI 5515.08, Assignment of Claims Responsibility (11 November 2006)

AFI 51-501, Tort Claims (15 December 2005)
CHAPTER TWELVE The Air Force Claims Program 573

PROPERTY DAMAGE TORT CLAIMS IN FAVOR OF THE 

UNITED STATES

The United States may assert and collect claims for damage to its property through 

someone’s negligence or wrongful act. As a property owner, the Air Force is often the 

victim of a tort and has the right under the Federal Claims Collection Act, 31 U.S.C. § 3701, 

3711-3719, to collect for tort damages. Claims on behalf of the United States for property 

damage by a tortfeasor require the base to be proactive and aggressively look for these 

claims, which are known as “G” claims or government claims. This does NOT include 

medical cost reimbursement claims.

Assertable Claims

- Claims personnel may assert claims against a tortfeasor for loss or damage to government property when:

-- The loss or damage to government property is for $100 or more. If the loss or 

damage is less than $100, assert the claim if it can be collected easily.

-- The loss or damage is based on a contract and the contracting officer does not 

intend to assert a claim under the contract. Document the contracting officer’s 

decision not to assert a claim for the file.

-- The claim arises from the same incident as a medical cost reimbursement claim

--- Process the two claims separately

--- Coordinate the investigations

-- The tortfeasor or his insurer presents a claim against the government arising 

from the same incident, i.e., counterclaims. Coordinate the processing of both 

the pro-government and anti-government tort claims together.

-- The claim is based on products liability theory of recovery. Due to the unique 

nature of product liability issues and claims litigation, obtain approval from 

AFLOA/JACC before asserting.
574 The Military Commander and the Law

Nonassertable Claims

- Claims personnel do not assert a claim for loss or damage of government property 

in these instances. Do not assert a claim:

-- For reimbursement against military or civilian employees for claims paid by the 

United States due to that employee’s negligence

-- For loss or damage that a nonappropriated fund instrumentality (NAFI) employee 

causes to government property while on the job

-- If the loss or damage was caused by a government employee with accountability 

for the property under the reports of survey system

--- Under the reports of survey system, military members and civilian employees 

may be held pecuniarily liable for the loss, damage or destruction of government property caused by their negligence. With some exceptions, the usual 

limit of liability is 1 month’s pay.

--- However, the reports of survey manual, AFMAN 23-220, Reports of Survey for 

Air Force Property, paras. 3.2.4 and 3.3.6, indicates assertion of a tort property damage claim instead of a report of survey is appropriate if the military 

member or civilian employee damages government property with his/her 

private automobile

Statute of Limitations

- The United States must file a lawsuit for loss or damage of government property, 

based in tort, within 3 years after the date when a responsible official of the United 

States knew or reasonably should have known the material facts that resulted in the 

claimed loss

- Suits based in contract, upon state law, or upon some other legal theory may have a 

different statute of limitations period

Collecting Claims

- Claims personnel collect tort claims in favor of the government

- The settlement authority may accept a third party’s offer to repair or replace the 

damaged property to the satisfaction of the accountable property officer
CHAPTER TWELVE The Air Force Claims Program 575

- The Air Force may offset a tort claim against an amount that it owes to the claimant

- When two or more tortfeasors are jointly and severally liable, settlement authorities 

may divide the payment between the tortfeasors

- A settlement authority may waive prejudgment interest (where statute, contract, or 

regulation do not require it) to encourage payment

Depositing Collections

- Claims personnel deposit collections

-- Deposit collections for loss, damage, or destruction to Air Force family housing, 

caused by abuse or negligence, to the DoD military family housing management 

account

-- Deposit collections for loss, damage, or destruction to other real property to 

the appropriate funds account of the organization responsible for the repair, 

maintenance, or replacement of the real property. These funds may not be reused 

without their appropriation by Congress.

-- Deposit collections for loss, damage, or destruction to property of an Air Force 

industrial fund or other revolving funds account to that account

-- Pay or deposit recoveries involving NAFI property to the appropriate NAFI

-- Deposit all other collections for which there is no statutory exception to the 

United States Treasury miscellaneous receipts account

References

10 U.S.C. § 2415 

10 U.S.C. § 2782 

10 U.S.C. § 2831 

31 U.S.C. § 3302 

Federal Claims Collection Act, 31 U.S.C. §§ 3701, 3711-3719

AFI 51-502, Personnel and Carrier Recovery Claims (5 August 2016)

AFMAN 23-220, Reports of Survey for Air Force Property (1 July 1996)
576 The Military Commander and the Law

MEDICAL COST REIMBURSEMENT CLAIMS

The Air Force may recover the cost of providing medical care to active duty and retired 

military members and their beneficiaries who are injured as a result of tortious conduct 

of third parties under the Federal Medical Care Recovery Act (FMCRA) and for all care 

covered by a third party payer under the Coordination of Benefits statute (COB). The Air 

Force may also recover pay given to an active duty member during a period of disability 

caused by tort under the FMCRA.

Federal Medical Care Recovery Act (FMCRA)

- Under this statute, the government’s recovery is predicated on “circumstances creating tort liability”

-- Usually, the four common law elements of tortious conduct (duty, breach, causation, damages) must be present before considering the assertion of a Medical 

Cost Reimbursement claim (MCR) under the FMCRA

-- The FMCRA applies even in no-fault jurisdictions. Where a system of tort liability 

has been replaced by a no-fault system, the government may pursue an FMCRA 

claim as a third party beneficiary.

-- At the same time, any defenses available under state law that may negate tort 

liability, such as contributory negligence, may be interposed to defeat the government’s claim. However, state procedural defenses cannot be interposed to 

defeat the claim.

-- In general, a federal statute of limitation of 3 years applies

-- Since the United States has an independent statutory right of recovery, a release 

signed by the injured party is usually not effective in extinguishing the government’s claim

- All successful collections for treatment provided by a military treatment facility 

(MTF) are deposited into the Operations and Maintenance (O&M) account of the 

MTF rendering treatment. Collections for active duty pay are deposited to the O&M 

account of the unit to which the disabled member was assigned at the time of the 

injury. Recoveries for TRICARE paid treatment is returned to the TRICARE Management Activity.
CHAPTER TWELVE The Air Force Claims Program 577

Coordination of Benefits (COB) Claims

- Congress allows MTFs to pursue recoveries from statutorily defined plans

-- These include health insurance policies/plans, auto insurance providing for medical treatment, workers’ compensation coverage, and similar plans, policies, and 

programs

-- The COB statute makes the United States a third-party beneficiary under such 

plans

-- In general, a federal statute of limitations of 6 years applies

- Successful recoveries of medical expenses are deposited directly into the treating 

MTF’s O&M account

- Claims offices use COB as the primary statutory basis of recovery against various 

types of automobile insurance

- COB has been extended to allow recovery of payments made through TRICARE. Medical expenses paid for by TRICARE are deposited into a TRICARE Management Activity.

Collection of Medical Cost Reimbursement Claims

- These claims are collected either by overseas base legal offices or one of eight Medical 

Cost Reimbursement Program (“MCRP”) regional offices within the United States. The 

MCRP offices are located at:

-- Joint Base McGuire-Dix-Lakehurst, New Jersey

-- Joint Base Langley-Eustis, Virginia

-- Eglin Air Force Base, Florida

-- Wright-Patterson Air Force Base, Ohio

-- Lackland Air Force Base, Texas

-- Offutt Air Force Base, Nebraska

-- Nellis Air Force Base, Nevada

-- Travis Air Force Base, California
578 The Military Commander and the Law

- Collections are generated from reports of injuries to covered personnel from medical treatment facilities, medical treatment providers, Security Forces blotters, and 

notice from the injured party’s chain-of-command. If commanders become aware 

of an injury to an active duty or retired military member and/or their beneficiaries 

caused by a tortious act, the commander should promptly notify the base legal office 

for guidance on how to process this information and/or advise the injured party to 

contact the closest MCRP office.

References

10 U.S.C. § 1095 

10 U.S.C. § 1095b 

Federal Medical Care Recovery Act, 42 U.S.C. §§ 2651-2653

AFI 51-502, Personnel and Carrier Recovery Claims (5 August 2016)
CHAPTER TWELVE The Air Force Claims Program 579

ARTICLE 139 CLAIMS

Under Article 139, UCMJ, commanders may direct collection and pay a claim for property 

that military personnel willfully damage or wrongfully take, if the claim results from 

riotous, violent, or disorderly conduct.

Scope of Article 139 Claims

- Assertable Claims:

-- Property claims only; not personal injury or wrongful death

-- Must involve willful misconduct, not performance of legally authorized duties; 

and must arise from riotous, violent, or disorderly conduct, not conduct involving 

simple negligence or, for example, bad checks or private indebtedness

- Article 139 claims are entirely separate and distinct from disciplinary action taken 

under any other article of the UCMJ, or any other administrative action that may be 

appropriate

- Proper Claimant:

-- Any individual, to include military and civilian, business entity, state, territory, 

local government, or nonprofit organization may file an Article 139 claim

--- However, an appropriated fund (AF) or nonappropriated fund (NAF) instrumentality of the United States may not file an Article 139 claim

Procedures

- The claim must be submitted to an appropriate commander within 90 days of the 

date of the incident, unless the commander determines good cause for a delay

-- Examples of good cause for delay may include deployment, a claimant who 

does not know the identity of the tortfeasor, or the claimant’s reasonable lack of 

knowledge of the ability to file an Article 139 claim

-- The claim should be submitted to the commander of the military organization or 

unit of the alleged offending member or members. However, it may be presented 

to the commander of the nearest military installation to be forwarded to the 

appropriate commander for jurisdiction.
580 The Military Commander and the Law

-- Initially, the claim may be presented orally, but it must be written and state a sum 

certain before final action may be taken

- The claim is sent directly, or through channels, to the appointing commander, who 

is the officer exercising special court-martial convening authority over the offender. 

The appointing commander appoints a board of officers to investigate the claim.

-- A board of officers may consist of one to three commissioned officers

-- After evaluating all available evidence, which may include interviewing the 

individual against whom the claim was asserted (in accordance with Article 31, 

UCMJ, rights and the right to counsel), the board:

--- Determines if the claim falls under Article 139, UCMJ

--- Identifies the offender(s)

--- Determines liability and damages

-- The board may recommend:

--- Assessing damages against the identified service member (deducting from 

the assessment any voluntary or partial payments already made)

--- Assessing damages against members who were present during the incident, 

if authorities cannot individually identify the offenders

--- Disapproving the claim

- After the board completes its review, it forwards the claim to the staff judge advocate 

for a legal review prior to action by the appointing commander

Action by the Appointing Commander

- Determine if the claim falls under Article 139, UCMJ

- Assess an amount against each offender, but not more than the board’s recommended amount

-- Cognizable claims in excess of $5,000 must be approved by AFLOA/JACC prior 

to payment
CHAPTER TWELVE The Air Force Claims Program 581

- Forward the board’s report to the appropriate commander if it is determined that 

one or more offenders are in a different command, since only the commander of an 

offender may order payment of the claim under Article 139

- Direct the Accounting and Finance Office to withhold the specified amount from 

each offender’s pay and to pay the claimant

- Notify the offender and claimant of the action taken

Appeal and Reconsideration

- The commander’s action may not be appealed by the claimant or the offender

- The commander who originally ordered the assessment may reconsider and change 

the decision if the findings later prove to be wrong, even if offender is no longer a 

member of that command

- A successor in command may change or cancel the assessment only on the basis of 

newly discovered evidence, fraud, or obvious error of law or fact

References

UCMJ Art. 139

AFI 51-502, Personnel and Carrier Recovery Claims (5 August 2016)
582 The Military Commander and the Law

LIABILITY FOR DAMAGE TO RENTAL VEHICLES

Introduction

- Vehicles rented on government orders are for official use only

- “Special conveyance use is limited to official purposes, including transportation to 

and from duty sites, lodgings, dining facilities, drugstores, barber shops, places of 

worship, cleaning establishments, and similar places required for the traveler’s subsistence, health or comfort.” Joint Federal Travel Regulations (JTR), see Chapter 3, 

Section 3320(E).

- The use of a rental vehicle for other than official purposes places a member at risk of 

personal liability for damages

- “Official Purposes” is a different standard than “scope of employment”

-- “Official purposes” is a standard in the JTR, and is used to determine whether or 

not a renter will be reimbursed for damage to a rental vehicle

-- “Scope of employment” is based on the law of the state in which the accident 

occurs and is the legal standard under the claims statutes that will be used to 

determine whether or not the United States will defend a renter in a lawsuit

-- Within NATO Status of Forces countries, there is yet a third standard, “in the 

performance of official duty,” which bears on both claims and foreign criminal 

jurisdiction questions

- Use must be reasonable, but even if reasonable, may still not be in scope of 

employment

- It is important for commanders to factor into rental car authorizations whether or 

not the member/employee has private automobile liability insurance that could be 

relied upon in the event the member/employee were in an accident and found to 

be outside the scope of employment

- When renting a vehicle pursuant to an authorization on orders, it is mandatory to 

obtain the rental vehicle through the commercial travel office (CTO). See JTR, Chapter 

3, Section 3000(B).

-- Generally, CTO will reserve a vehicle from a company participating in the Defense 

Travel Management Office (DTMO) negotiated agreement
CHAPTER TWELVE The Air Force Claims Program 583

-- It is TRANSCOM policy for CTOs to reserve a rental vehicle from a company that 

subscribes to the DTMO-negotiated agreement

--- Use of companies and rental car/truck locations participating in the DTMO 

agreement is encouraged because their government rate includes liability 

and vehicle loss and damage insurance coverage for the traveler and the 

government

--- Rental companies having a negotiated agreement with DTMO will be used, 

unless another rental company can provide better service at a lower cost and 

abides by the same rules/guidance contained in the DTMO-negotiated car/

truck rental agreement

--- Government Administrative Rate Supplement (GARS). The GARS is a $5 per 

day fee added by rental car/truck companies that are party to the DTMO Car 

Rental Agreement. GARS is reimbursable to the traveler as specified in the 

JTR, Appendix G, Reimbursable Expenses on Official Travel and Appendix O, 

Section T4030(C)(2).

DTMO Rental Vehicles Agreement

- Major rental car companies subscribe to a memorandum of understanding (MOU) 

with DTMO. The MOU sets rates and conditions of the rental.

- Names of companies participating in the rental car program, current maximum 

rates offered and terms and conditions of the U.S. Government Rental Car Agreement, effective 15 October 2010, are published on the DTMO web site: https://www.

defensetravel.dod.mil/site/rentalCar.cfm

- Travel orders must reflect that a rental vehicle is authorized

- Agreement is not valid when using an International Merchant Purchase Authorization 

Card (IMPAC)

- Must rent from a participating company AND location. While most rental car companies subscribe to the agreement, a particular location may opt out.

- Rental agency should be notified of all persons who are going to be driving vehicle

-- While not mandatory under the DTMO agreement, it might relieve the renter of 

personal liability if another driver uses the vehicle on other than official business
584 The Military Commander and the Law

-- Rental agency cannot charge for the addition of other drivers. A contractor is 

not your “fellow employee” and may not drive a car you rent on official business.

- DTMO Car Rental Agreement: Applies to cars and mini-vans, available at https://www.

defensetravel.dod.mil/Docs/CarRentalAgreement.pdf

- DTMO Truck Rental Agreement:

-- Available at https://www.defensetravel.dod.mil/Docs/TruckRentalAgreement.pdf

-- Applies to cargo vans, pick-ups, and utility and straight trucks. Gross weight must 

not require a Class C driver’s license.

-- Trucks are not necessarily listed with the commercial travel office (CTO). Must 

call company or go to DTMO web site: https://www.defensetravel.dod.mil/site/

rental.cfm

-- Driver must be 21 years old

-- Unlike cars, if a driver rents a different truck than one with DTMO rate, DTMO 

agreement does not apply

-- May apply to do-it-yourself (DITY) moves, but coverage under the agreement 

does not extend to spouse driving vehicle, nor to detour, e.g., driving out of the 

way to see parents. Some states do not consider permanent change of station 

(PCS) moves to be in scope of employment, so government would not defend 

member for negligence causing damage or injury to another.

Liability for Damages to the Rental Vehicle and to Others

- Four Different Situations:

-- Rented on orders pursuant to DTMO agreement

-- Rented on orders not under DTMO agreement

-- Personal rental vehicle on official temporary duty (TDY)

-- Rented pursuant to umbrella contract

- Claims personnel do not pay claims for damage to rental vehicles rented on orders 

pursuant to DTMO agreement. Follow guidance below for each situation.
CHAPTER TWELVE The Air Force Claims Program 585

Rented on Orders Pursuant to DTMO Agreement

- The rental company assumes and bears the entire risk of loss of or damage to the 

rented vehicles up to the policy limits; full comprehensive and collision coverage is 

in effect

- Renter may be personally liable for loss or damage caused by a fellow government 

traveler in official travel status while acting outside the scope of their employment 

duties

-- Example: A unit sends five people TDY and authorizes one rental car. One member 

rents the vehicle and charges the rental on the member’s government travel card 

(GTC) (not the unit’s government purchase card (GPC)). Any of the five members 

are authorized drivers while acting within the scope of their employment duties. 

But if one of the members takes the vehicle to a bar late at night, gets drunk, and 

crashes the car, that member would not be considered an authorized driver at 

the time of the accident.

- Negligence claims for personal injury or property damage against the driver by third 

parties are covered under the liability insurance provided by the rental car company, 

up to the policy limits. Under the current DTMO agreement, rental companies must 

have personal injury policy limits of at least $100,000 per person/$300,000 per occurrence and property damage limits of $25,000 per occurrence. Regardless of fault, so 

long as the driver was within the scope of employment, the government will defend 

the driver in any civil lawsuit. Within the United States, the exclusive remedy is against 

the government—the driver cannot be held personally liable while he/she was within 

the scope of employment. 

Rented on Orders, Not Under the DTMO Agreement

- For damage to rental vehicle, the government travel card currently carries collision 

coverage

-- The traveler must decline the rental car company’s collision damage waiver 

insurance

-- Damage must be reported to the government travel card company immediately

-- Covers collision or rollover, theft and theft-related charges, malicious vandalism, 

windshield damage due to road debris, and loss of use and towing charges due 

to covered damage
586 The Military Commander and the Law

-- Does not apply if the vehicle is rented for more than 31 days; if used off-road; if 

driver is driving under the influence (DUI); if damage results from hail, lightning, 

flood or other weather-related causes; or if damage is from failure to protect the 

car, e.g., leaving the car running and unattended

-- Does not apply to expensive, exotic, and antique autos; vans over eight passenger; trucks; motorcycles; limos; or recreational vehicles

-- If no travel charge card coverage, member usually pays rental company and 

claims reimbursement on the travel voucher under JFTR, Appendix G

--- Defense Finance and Accounting Service (DFAS) can also pay rental company 

directly

--- Travel claim comes to the legal office for review

--- Payment for damage is from unit travel funds

- For damage to another vehicle, property, or personal injury, the claims office 

adjudicates

- So long as the driver was in the scope of employment, the United States will defend 

the driver

-- Within the United States, the driver cannot be held personally liable if the accident occurred while he/she was within the scope of employment

Personal Rental Vehicle on Official TDY

- For damage to rental vehicle, the driver is usually personally responsible

- For damage to another vehicle, property, or personal injury, the United States will 

defend the driver if driver is in the scope of employment

-- Within the United States, the driver cannot be held personally liable if the accident occurred while he/she was within the scope of employment
CHAPTER TWELVE The Air Force Claims Program 587

Rented Pursuant to Contract

- DTMO agreement not applicable unless made a part of the contract

- Will be subject to specific contractual provisions under Federal Acquisition Regulations (FAR) (FAR clause 52.228-8 is required within the United States); generally, the 

United States is liable for any damages to the rental vehicle except fair wear and tear 

and loss or damage caused by the negligence of the contractor

- Along with typical contracts for fleet rentals, rental with a GTC is a government contract, and not a rental between the traveler and the company

- Claims for damage to rental vehicles under contract are settled under contractual 

provisions as claims against the contract

- Unlike vehicles rented on a GTC, a report of survey may be required for damage to a 

vehicle rented under a government contract

- For damages to another vehicle or property, claims office adjudicates as a tort claim. 

Again, so long as the driver is within the scope of employment, the government will 

defend the driver. Within the United States, the driver cannot be held personally liable 

if the accident occurred within the scope of employment.

In Case of Accident

- Call the rental company and report. If rented on a government travel card, call travel 

card company and report immediately.

- If the police respond, try to get a copy of the accident report. If you cannot get a copy 

of the report, find out how to get a copy later.

- If someone else is injured in the accident and you are TDY at or near a base, let the 

base legal office know of the accident. If not near a base, contact your base legal 

office upon return.

- Inform the staff judge advocate immediately if you become aware litigation is filed 

regarding a vehicle rented by an Air Force member/employee, even if the United 

States is not a named party in the suit

- Never admit liability at the site of an accident
588 The Military Commander and the Law

References

28 U.S.C. § 2679

Joint Federal Travel Regulations (JTR), http://www.defensetravel.dod.mil/Docs/perdiem/JTR.pdf)

Federal Acquisition Regulation (FAR) §§ 28.312, 52.228-8

Defense Transportation Regulation (DTR) DoD Regulation 4500.9-R-Part I, Passenger Movement 

(November 2010)

AFMAN 23-220, Reports of Survey for Air Force Property (1 July 1996)

AFI 51-501, Tort Claims (15 December 2005)

Defense Travel Management Office, http://www.defensetravel.dod.mil/index.cfm
CHAPTER TWELVE The Air Force Claims Program 589

REPORTS OF SURVEY (ROS)

Commanders at all levels are responsible for not only the personnel in their unit, but also 

for all assigned equipment and property under their control. Occasionally some of that 

equipment may be lost, damaged or destroyed. Depending on the type of item(s) that are 

lost or damaged, a report of survey (ROS) might be required to investigate and document 

the circumstances and as a tool to determine the appropriate corrective actions to prevent recurrence. This paper will walk you through the fundamentals of the ROS process. 

It is important to note that this information does not apply to nonappropriated funds 

(NAF) assets (see AFI 34-202, Procedures For Protecting Nonappropriated Funds Assets, Ch. 

8 for guidance).

Purposes 

- The general purposes of the ROS program are to: 

-- Investigate the cause of loss, damage, or destruction of property and determine 

if it was attributable to an individual’s negligence or abuse

-- Assess monetary liability or relieve individuals from liability if no evidence of 

negligence, willful misconduct, or deliberate unauthorized use

-- Provide documentation to support adjustment of accountable records

-- Provide commanders with case histories to enable them to take corrective action 

to prevent recurrence of the incident

Mandatory Reports of Survey

- There are certain situations in which a ROS is mandatory. These situations include 

the following:

-- Damage or destruction of controlled or sensitive items, weapons, or classified 

items

-- Cases with evidence of abuse, gross negligence, willful misconduct, or deliberate 

unauthorized use of government property

-- Hand tools or other pilferable items over $100 unit cost or $500 total cost

-- Supply system stock record adjustments greater than $50,000
590 The Military Commander and the Law

-- See AFMAN 23-220, Reports of Survey For Air Force Property, para. 3.1 for additional 

mandatory situations

When Reports of Survey are Not Mandatory

- There are certain situations/items that do not require initiation of an ROS. The most 

common situations not requiring an ROS include:

-- When an individual voluntarily agrees to pay for property and value is $500 or 

less (provided the item(s) are not subject to mandatory ROS requirements)

-- Property lost in combat operations

-- Property becomes unserviceable due to fair wear and tear

Report of Survey Liability Thresholds

- Before moving into the process itself, it is important to be aware of the amount of 

financial liability Air Force members may expected to repay. These amounts vary 

depending on the nature of the items affected by the loss/damage.

-- Personal Arms or Equipment: The full amount of the loss or damage

-- Military Supply Items: The full amount of damage/loss

-- Government Housing: The full amount of loss or damage if proximate cause was 

gross negligence or abuse by the military member, dependent, or guest

-- All Other Cases: Up to the full amount of the loss, damage, or destruction, but in 

no case more than 1 month’s regular military compensation (1/12th of annual 

pay for civilian employees)

The Report of Survey Process

- The first step to initiating an ROS is for the unit commander (or in some cases the 

appointing authority) to appoint an investigating officer (IO) to determine the facts. 

Some of the investigative processes are highlighted below. AFMAN 23-220, Chapter 

7 contains detailed guidance regarding the IOs’ responsibilities and duties.
CHAPTER TWELVE The Air Force Claims Program 591

-- The IO will answer the following six questions:

--- What Happened?

--- How?

--- Where?

--- When?

--- Who was involved?

--- Was there any evidence of negligence, misconduct, or deliberate unauthorized use or disposition of the property?

-- Based on the facts, the IO makes findings and recommendations on the issue of 

liability of the person(s) involved

-- The ROS is then referred to the accountable officer so that the records may be 

adjusted as soon as possible

-- Once referred to the accountable officer, the IO allows the person(s) involved to 

review the case and provide verbal or written information to refute the findings 

and recommendations

-- The ROS is then processed to the appointing authority for assignment of financial responsibility against the individual(s) charged, OR relieving them from 

responsibility

--- ROS referred to the legal office for review if financial responsibility is to be 

assessed

--- If IO has not performed a thorough job, the ROS should be returned for 

reaccomplishment

-- Once the previous steps have been satisfactorily completed, the approving 

authority reviews the ROS and assigns financial liability or relieves the individual(s) 

of responsibility

-- The individual(s) charged may appeal the approving authorities’ decision to the 

next level in the chain of command
592 The Military Commander and the Law

Post-Approval ROS Actions

- After the approving authority assesses liability against a person(s) or receives a 

request for reconsideration, appeal, or waiver, there are prescribed timelines for 

additional processing actions

-- The ROS Program Manager will advise the individual found liable within 5 workdays if located on the same base (12 work days for mail notification within the 

Continental United States CONUS)

-- The ROS Program Manager will advise the Financial Services Office (FSO) to record 

the debt on the member’s pay record concurrently with notifying the individual 

of their liability

-- Within 30 days of being notified of financial liability the individual(s) MAY voluntarily pay the amount assessed or, if the dollar amount is 1 month’s pay or less, 

appeal the assessment to the approving authority

-- If the liability assessment exceeds 1 month’s pay, the individual MUST notify 

the approving authority of the intent to appeal the assessment within 60 days 

of receipt of the notification

-- If an appeal is submitted, the FSO is immediately advised not to collect until the 

appeal is ruled upon by the approving authority. If the debt exceeds 1 month’s 

pay they will be advised not to collect for 60 days.

Processing Times

- As lost, damaged, or destroyed property has an impact on both the Air Force and the 

individual(s) who caused the loss, damage, or destruction, the Air Force has established the following timelines for initiation and completion of a ROS

-- The organization will obtain an ROS investigation number, appoint an investigating officer (IO), and complete the preliminary investigation phase within 15 days 

from the date of the discovery of the loss

-- The established timelines to complete the ROS are as follows:

--- 100 days if there is no assessment of financial liability (145 for Air National 

Guard (ANG) and Air Force Reserves (AFR))
CHAPTER TWELVE The Air Force Claims Program 593

--- 130 days if financial liability officer or board is appointed (185 for ANG 

and AFR)

--- 150 days if financial liability is recommended because legal review is required 

(245 for ANG and AFR)

References

AFMAN 23-220, Reports of Survey for Air Force Property (1 July 1996)

AFI 34-202, Procedures For Protecting Nonappropriated Funds Assets (22 December 2015)
594 The Military Commander and the Law
595

Contract Law Foundation...................................................................................................................596

Acquisition, Strategy, Planning ........................................................................................................598

Competition in Contracting ..............................................................................................................601

Acquisition Process...............................................................................................................................604

Bid Protests..............................................................................................................................................607

Contract Administration.....................................................................................................................609

Communications with Industry/Interfacing with Contractors.............................................613

Conflicts of Interest (Personal and Organizational) ..................................................................615

Procurement Integrity Act .................................................................................................................617

Suspension and Debarment..............................................................................................................619

The Air Force Community Partnership Program (AFCP) and Intergovernmental 

Support Agreements (IGSAs).....................................................................................................621

Congress and Appropriations to the Air Force ...........................................................................623

Foundations of Fiscal Law..................................................................................................................624

Construction Funding Thresholds...................................................................................................629

Continuing Resolution Authority and Funding Gaps...............................................................631

Contractor Personnel Authorized to Accompany the U.S. Armed Forces.........................635

CHAPTER THIRTEEN: CONTRACTING ISSUES 

13

FOR THE COMMANDER
596 The Military Commander and the Law

CONTRACT LAW FOUNDATION

The current acquisition environment is complex and faces extensive budgetary pressures 

and increased scrutiny. Concurrently, the Department of Defense (DoD) is relying more 

heavily than ever before upon contractors to deliver necessary supplies and services to 

the warfighter. Budget pressures, intense scrutiny of a commander’s use of appropriated 

funds, and increased requirements have resulted in a more complex legal landscape. Yet, 

despite this the Air Force contracting workforce has decreased in the last decade. Thus, it 

is imperative that acquisition professionals, attorneys, and commanders work together 

to protect the integrity, precision, and reliability of the acquisition process.

The rules governing the acquisition process can be found in the Federal Acquisition 

Regulation (FAR) System. The FAR is established for the codification and publication of 

uniform policies and procedures for acquisition by all executive agencies.

Contracting Authority

- Commanders have a duty to ensure personnel are informed of proper contracting 

authority

- Normally, only contracting officers (COs) who have been delegated authority by the 

head of an agency in the form of a “warrant” have the authority to enter into contracts 

on behalf of the U.S. Government to purchase the supplies, services, and construction 

requirements for the operation of the installation or unit

-- Contract authority and limitations are specified in the CO’s “warrant”

-- Government purchase card (GPC) cardholders (with limited thresholds) have 

limited contract authority

- Generally, commanders do not have contracting authority

Unauthorized Commitments

- On occasion, an individual without contract authority will enter into a commitment 

to accept supplies or services

- Once discovered, unauthorized commitments may be “ratified” by a person with 

contract authority, allowing for government payment. Ratification procedures and 

authorization levels are provided in the Air Force FAR Supplement
CHAPTER THIRTEEN Contracting Issues for the Commander 597

- An unauthorized commitment must meet the following criteria to be eligible for 

ratification:

-- Supplies or services have been provided to and accepted by the government, or 

the government has or will obtain a benefit from performance of the commitment;

-- The ratifying official has the authority to enter into a contractual commitment;

-- The resulting contract would otherwise have been proper if made by an appropriate CO;

-- The CO determines the prices to be fair and reasonable;

-- The CO recommends payment and legal counsel concurs; and

-- Funds are currently available and funds were available at the time of the unauthorized commitment

- The commander of the organization involved must ensure the CO is provided a 

report of the circumstances surrounding the unauthorized commitment, including 

a statement on corrective actions taken to prevent a recurrence of the event and a 

description of disciplinary action taken, or an explanation why no action was taken

- Any unauthorized commitments that are not ratified are the sole financial responsibility of the individual making the unauthorized commitment and are not the financial 

responsibility of the government

References

FAR 1.6, Career Development, Contracting Authority, and Responsibilities

AFFARS MP 5301.602-3, Ratification of Unauthorized Commitments

AFMAN 34-214, Procedures for Nonappropriated Funds Financial Management and Accounting

(14 February 2006), incorporating through Change 5, 23 March 2010
598 The Military Commander and the Law

ACQUISITION, STRATEGY, PLANNING

Acquisition planning is required to ensure the Air Force obtains requirements in the 

most effective, economical, and timely manner possible. Written acquisition plans, 

requirements development, cost estimating, incorporating lessons learned from previous 

procurements, and allowing sufficient time to conduct acquisition planning are several 

important elements of successful acquisition planning. Commanders must ensure sufficient capability to manage and oversee the contracting process from start to finish. 

Some functions, such as inherently governmental functions, cannot be performed by 

contractors. Other functions require special consideration before deciding to contract 

and close supervision in the administration when contracting is appropriate.

Inherently Governmental Functions (IGFs)

- IGFs must not be performed by anyone other than a government employee. Contractors are specifically prohibited from performing these functions.

- If, after awarding a contract, monitoring reveals that contractors are performing IGFs, 

Air Force personnel must reestablish control over these functions by strengthening 

oversight, in-sourcing the work to government employees, refraining from exercising 

options under the contract, or terminating all or part of the contract

- OFPP Policy Letter 11-01, Performance of Inherently Governmental and Critical Functions, constitutes the most recent guidance for federal agencies regarding what is 

and is not an IGF. It establishes two tests:

-- Nature of the Function Test: Categorizes functions involving the exercise of U.S. 

sovereign power as IGF due to their “uniquely governmental nature,” regardless 

of any “type or level of discretion associated with them”

-- Exercise of Discretion Test: Prohibits agencies from contracting out functions 

involving an exercise of discretion that would commit the government to a 

course of action where two or more alternative courses of action exist and decision making is not already limited or guided by existing policies, procedures, 

directions, orders, and other guidance

- Examples of Functions Designated as IGF:

-- The direct conduct of criminal investigations

-- The control of prosecutions and performance of adjudicatory functions
CHAPTER THIRTEEN Contracting Issues for the Commander 599

-- The command of military forces

-- Combat

-- The determination of budget policy, guidance, and strategy

-- The direction and control of federal employees

Work Closely Associated with Inherently Governmental Functions

- Although not an IGF, this is a function requiring additional oversight and special 

consideration for in-sourcing due to the nature of the function, the manner in which 

the contractor performs the contract, or the manner in which the government administers contract performance

- Before awarding a contract for a function closely associated with the performance 

of an IGF, the agency must determine in writing that:

-- Special consideration has been given to having federal employees perform the 

work

-- Resources exist to give special management attention to contract performance

Critical Functions

- Defined as functions necessary to the agency’s ability to effectively perform and 

maintain control of its mission and operations

- Special consideration should be given to in-sourcing critical functions

- Contracting out critical functions is permitted when a determination in writing is 

made prior to issuing a solicitation that sufficient internal capability exists so that 

federal employees maintain control of missions and operations
600 The Military Commander and the Law

References

10 U.S.C. §§ 2383, 2461, and 2463

FAR Part 7, Acquisition Planning

DFARS 207.5, Inherently Governmental Functions

Office of Procurement Policy, Policy Letter 11-01, Performance of Inherently Governmental and 

Critical Functions, (12 September 2011)

OMB Cir A-76 (Revised), Performance of Commercial Activities, (29 May 2003)

DoDI 1100.22, Policies and Procedures for Determining Workforce Mix (12 April 2010)

AFI 63-138, Acquisition of Services (21 May 2013)
CHAPTER THIRTEEN Contracting Issues for the Commander 601

COMPETITION IN CONTRACTING

Awarding contracts through competition ensures that the Air Force receives the best 

value for its money. The Competition in Contracting Act (CICA) directs federal agencies 

to procure requirements through competitive processes unless a statutory exception 

applies. Commanders should ensure that any contracts not awarded through “full and 

open competition” fall under a statutory exception and include the required written 

justifications.

The Competition in Contracting Act

- CICA, 10 U.S.C. § 2304, requires “full and open competition through the use of competitive procedures” unless an express exception applies

-- To fulfill competition requirements, the procuring office will advertise the requirement, request bids or proposals, and select an awardee based on the solicitation’s 

evaluation criteria

- CICA has two categories of exceptions, allowing limited competition and sole-source 

awards

-- Limited Competition: “Full and open competition after exclusion of sources”—

allows the procuring office to limit the sources from which it seeks competition

--- This exception is primarily used to meet requirements of the Small Business 

Act. Procurements can be set aside for firms that qualify as a small business 

or particular category of small business, such as service-disabled veteranowned small business.

--- For assistance needed after a major disaster or during an emergency, solicitations can be limited to local firms

--- To establish or maintain alternate sources of supplies or services

-- Sole Source Awards: Made through “other than full and open competition”—

require a written justification identifying the specific exception

--- Only one contractor can provide the service or supply

--- Unusual or compelling urgency such that delay in award would result in 

serious injury, financial or other, to the government
602 The Military Commander and the Law

--- It is necessary to award the contract to a particular source in order to:

---- Maintain the manufacturer or supplier in case of a national emergency 

or to achieve industrial mobilization,

---- Establish/maintain an research and development (R&D) capability to be 

provided by a nonprofit institution or a federally funded research and 

development center, or

---- Procure the services of an expert for use in litigation

--- An international agreement requires use of non-competitive procedures

--- Federal statute authorizes or requires the use of specific source

--- Disclosure of the agency’s needs would compromise national security

--- The Secretary of the Air Force determines that a non-competitive procurement is in the public interest and provides notice to Congress

- Air Force installations have designated competition and commercial advocates 

whose duties include promoting effective competition in acquisition programs

Contract Modifications

- A modification to an existing contract will violate CICA when the changes are beyond 

the scope of the original contract and a sole source award has not been justified

-- The scope analysis considers the degree of change in the type of work, performance period, contract cost, and whether the change is the type that offerors 

could have anticipated when bidding on the originally awarded contract

Unsolicited Proposals

- It is not unusual for a commander to receive an unsolicited proposal from a business 

not in response to a solicitation from the government. An unsolicited proposal is a 

written proposal introducing a new or innovative idea and seeking a contract with 

the government without competition.

- Regulation prescribes procedures and standards for evaluating unsolicited proposals. 

CICA requirements are not waived for unsolicited proposals. If award of a contract is 

contemplated, a sole source award justification and approval must be accomplished.
CHAPTER THIRTEEN Contracting Issues for the Commander 603

References

The Competition in Contracting Act, 10 U.S.C. § 2304

FAR Part 2, Definitions of Words and Terms

FAR Part 6, Competition Requirements

FAR Subpart 15.6, Unsolicited Proposals

DFARS Part 206, Competition Requirements

AFFARS Part 5306, Competition Requirements

AFFARS MP315.606-90, Receipt, Evaluation, and Disposition of Unsolicited Proposals

AFFARS MP306.502, Mandatory Procedures
604 The Military Commander and the Law

ACQUISITION PROCESS

“Acquisition process” is a term used to describe how the Air Force purchases the supplies 

and services necessary to accomplish its missions. The acquisition process is subject to 

the rules contained in the Federal Acquisition Regulation (FAR), the Defense Federal 

Acquisition Regulation Supplement (DFARS), the Air Force Federal Acquisition Regulation 

Supplement (AFFARS), Department of Defense Instructions (DoDIs), supplementing Air 

Force Instructions (AFIs), and Major Command (MAJCOM) or installation supplements to 

the FAR and/or AFIs. The process is heavily regulated even for small purchases. If issues 

arise when purchasing supplies or services the best course of action is to work with your 

contracting squadron and/or legal office.

Micro Purchases

- A micro purchase is a government purchase of supplies or services which in the 

aggregate does not exceed $3,500, except for: 

-- Construction, the value is $2,000

-- Support of contingency or chemical/biological/radiological/nuclear (CBRN) 

recovery/defense operations (excluding construction), the threshold is $20,000 

inside the United States and $30,000 outside the United States

- The DoD is directed to use the government purchase card (GPC) to pay for purchases 

valued at or below the micro purchase threshold

-- Purchases on the GPC are limited to the micro purchase threshold unless orders 

are placed against pre-priced vehicles (such as the federal supply schedule, a 

blanket purchase agreement, or an indefinite delivery, indefinite quantity (IDIQ) 

contract) in which case the limit is $25,000 for authorized cardholders

-- Splitting a larger purchase into smaller segments to stay under the micro purchase threshold is not allowed

- Timeline: Full and open competition is not required

-- A determination must be made by the authorized individual that the price is 

reasonable

-- As much as possible, micro purchases should be distributed equitably among 

qualified suppliers
CHAPTER THIRTEEN Contracting Issues for the Commander 605

Simplified Acquisition Procedures

- Simplified acquisition procedures allow the contracting officer to reduce the amount 

of time required to procure supplies and services below the simplified acquisition 

threshold and to create or utilize more efficient ordering methods

- These procedures are used to purchase more routine items like office supplies and 

grounds keeping services

-- The simplified acquisition threshold is $150,000

--- For support of contingency or CBRN recovery/defense operations (excluding construction), the threshold is $300,000 inside the United States and 

$1 million outside the United States

--- Acquisitions under the simplified acquisition threshold are reserved exclusively for small businesses

- Commercial Items

-- It is the government’s policy to procure commercial items when possible 

-- Contracting officers can use simplified acquisition procedures when purchasing 

commercial items not exceeding $7 million ($13 million if purchasing commercial 

items in support of contingency or CBRN recovery/defense operations)

- Timeline: Contracting officers can use streamlined acquisition procedures designed 

to reduce the time required to solicit and award contracts

-- Generally, agencies must synopsize for at least 15 days, and then issue a solicitation and allow a reasonable opportunity to respond

Negotiated Procurement

- Most acquisitions over $150,000

- Accomplished by using the best value process seeking either the lowest-priced technically acceptable offer or a best-value tradeoff where the Air Force may select a higher 

priced offer because the offeror has superior past performance or technical skill

- There is no dollar threshold limiting the use of negotiated procurement techniques.
606 The Military Commander and the Law

- Timeline: Generally, for proposed contract actions expected to exceed the simplified 

acquisitions threshold ($150,000), contracting officer’s must publically synopsize 

a solicitation for 15 days, and then issue a solicitation allowing at least 30 days to 

respond

-- Timelines for solicitations and the government evaluation of proposals can 

vary greatly depending upon the monetary value, item, and complexity of the 

acquisition

References

FAR Part 12, Acquisition of Commercial Items

FAR Part 13, Simplified Acquisition Procedures

FAR Subpart 13.2, Actions at or Below the Micro-Purchase Threshold

FAR Part 15, Contracting by Negotiation

DFARS Part 213, Simplified Acquisition Procedures

DFARS Part 215, Contracting by Negotiation

DoDI 5000.02, Operation of the Defense Acquisition System (7 January 2015)

AFI 64-117, Air Force Government-wide Purchase Card (GPC) Program (20 September 2011)
CHAPTER THIRTEEN Contracting Issues for the Commander 607

BID PROTESTS

The bid protest system ensures the government follows regulatory requirements for 

advertising, evaluating, and awarding contracts. A bid protest is a written objection by 

an interested party of a contract solicitation or award. Protests can be filed with: 1) the 

Air Force – typically called an “agency protest,” 2) the Government Accountability Office 

(GAO), or 3) the Court of Federal Claims (COFC). A trial attorney from the Air Force Legal 

Operations Agency is the sole representative for the Air Force before the GAO and works 

with the Department of Justice before the COFC.

- An agency protest is a protest filed directly with the contracting officer (CO) or other 

designated Air Force official. COs must consider the protest, seek legal advice, and 

respond.

- A GAO protest is a protest which has been filed with the GAO, an arm of the legislature, and is the typical means for protests

- Under the Competition in Contracting Act, the Air Force must suspend (stay) award or 

performance of a contract if it receives a GAO protest before contract award; within 10 

days of the date of contract award; or within 5 days of the date offered for a required 

post-award debriefing

-- Only the Deputy Assistant Secretary for Contracting may override the mandatory stay. Authority to override an agency protest stay lies with an official at the 

level above the contracting officer. An override will usually require an “urgent 

and compelling” justification. A decision to override a stay in a GAO protest is 

reviewable by COFC.

- The Air Force must formally respond to a GAO protest within 30 calendar days

-- The GAO will issue a decision no later than 100 days after a protest is filed. If a 

protest is sustained, the GAO will recommend what actions the Air Force should 

take. The GAO decision or the Air Force’s failure to follow the GAO recommendation may be subject to further litigation.

- A COFC protest is substantially similar to proceedings in federal district courts

-- A protester can file with the COFC despite having been the subject of a previous 

GAO protest
608 The Military Commander and the Law

-- There is no statutory automatic stay in a COFC protest. However, the protester 

can seek a restraining order and temporary injunction to suspend award or performance of the contract.

-- The Air Force must promptly respond to a COFC protest

-- Unlike GAO and agency-level protest decisions, the COFC has no time limit on 

the issuance of protest decisions

References

Competition in Contracting Act, 31 U.S.C. §§ 3551-3556

FAR Subpart 33.1, Protests

Office of General Counsel Guidebook, Bid Protests at GAO: A Descriptive Guide (3 April 2009)
CHAPTER THIRTEEN Contracting Issues for the Commander 609

CONTRACT ADMINISTRATION

The ever changing operational environment requires flexibility in administering Air Force 

contracts. This section reviews the most common issues in contract administration, such 

as, how the Air Force is protected from defective supplies after a contract ends, how 

contracts are changed or cancelled, and what process is used to resolve disputes between 

contractors and the Air Force.

Contract Warranties and Defective Supplies

- Standard contract clauses normally give the government the right to inspect supplies 

and services before acceptance and reject supplies and services that are defective 

or fail to meet requirements

- After acceptance, the government normally loses its right to inspect and reject supplies and services and the contractor’s obligation under the contract to cure defects 

in those supplies and/or services ends. The only exception is for latent defects (defects 

which could not have been discovered by a reasonable inspection), fraud, or gross 

contractor mistake.

- Some contracts contain “warranties” which allow the government, after acceptance, 

to order a contractor to repair or replace a defective product, or allow the government 

to keep it at a reduced price

Formal Contract Changes

- Contract changes are any additions, subtractions, or modifications to the work or 

performance time required by a contract. Changes should be in writing and included 

in the contract file.

-- Only a contracting officer (CO) can make a contract change

- In some cases, the CO can unilaterally change certain terms in a contract. In these 

instances, contractors must comply with the change, but may be entitled to additional compensation or time.

-- A contractor cannot make a unilateral change to a contract

- The contracting officer and contractor can agree to a bilateral modification
610 The Military Commander and the Law

- A contract may not be changed so drastically that it no longer represents the original 

contract in violation of the Competition in Contracting Act. These types of changes 

are referred to as cardinal changes.

- Competitors of the contractor may challenge the legality of the modification before 

the Court of Federal Claims (COFC) or the Government Accountability Office (GAO)

Constructive Contract Changes

- The government may impose a change, intentionally or unintentionally, but fail to 

capture the change in writing. This is referred to as a constructive change.

- If the contractor provides notice of a constructive change, the contracting officer 

should: adopt the change; reject the change; or adopt the conduct, but deny a 

change exists

Terminating a Contract for the Convenience of the Government

- A termination for convenience (T4C) occurs when the government exercises its right 

to cancel a contract, or portion of a contract, because it is in the government’s best 

interest

-- Before a T4C, the government and the contractor may agree to a no-cost T4C 

where the contract is terminated at no cost to either the government or the 

contractor; or

-- After a T4C, the government and contractor will settle the amount owed to the 

contractor based on: the contractor’s incurred costs; a fair profit on the incurred 

costs; and settlement expenses. For commercial goods T4Cs, the contractor’s 

settlement is based on the percentage of the contract completed plus reasonable 

charges. 

-- The government has no duty to terminate a contract for the contractor’s benefit

-- A T4C may be reviewed by the Armed Services Board of Contract Appeals (ASBCA) 

and/or COFC to determine if it was accomplished in bad faith or was a clear abuse 

of discretion
CHAPTER THIRTEEN Contracting Issues for the Commander 611

Terminating a Contract because of a Contractor’s Failure to Perform

- A termination for default (T4D) (in commercial contracts called a termination for 

cause) occurs when the government exercises its right to cancel a contract after a 

contractor’s unexcused failure to perform in accordance with contract terms

-- The contractor must pay the government the additional costs of acquiring goods 

or services similar to those terminated for default referred to as the excess costs 

of re-procurement. The contractor may also have to pay additional damages 

caused by their failure to comply with the contract.

-- The government only pays for the value it actually received under the contract

- The government should notify the contractor of the potential T4D before termination

-- A “cure notice” is a written notice telling a contractor they do not comply with the 

contract and providing a limited time (at least 10 days) to correct the problem or 

possibly face a T4D. A cure notice is required to uphold almost all T4Ds.

-- A “show cause notice” tells a contractor they failed to comply with the contract 

and will be terminated unless they can show cause why they should not be terminated. A show cause notice should be issued if practicable.

Resolving Government and Contractor Disputes – Contract “Claims”

- Disputes between the government and a contractor over administration of a contract 

are resolved through the claims process established under the Contract Disputes 

Act (CDA)

-- A claim is a written demand by one party seeking, as a matter of right, money, 

interpretation of terms, or a change to the contract

-- Only the government and the prime contractor may submit a claim. Claims of 

subcontractors must be filed by the prime contractor.

- After a claim is submitted, the CO has 60 days to:

-- Issue a written final decision, or if the claim exceeds $100,000, identify a firm date 

by which a final decision will be issued

-- If no final decision or firm date notice is issued, the contractor may treat the 

matter as an appealable denial of their claim (known as a deemed denial)
612 The Military Commander and the Law

- CO final decisions may be appealed at the ASBCA or COFC

-- ASBCA claims must be filed within 90 days of receipt of the final decision

-- COFC claims must be filed within 12 months of receipt of the final decision

- Contractors may recover monetary damages and reasonable attorney fees as the 

result of successful ASBCA and COFC claims

-- Payments may be made on claim judgments and awards using the judgment fund, 

but the Air Force must repay the judgment fund from a current appropriation

- ASBCA and COFC rulings may be appealed to the Court of Appeals for the Federal 

Circuit

References

Competition in Contracting Act, 41 U.S.C. § 253 

Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109

FAR Part 43, Contract Modifications

FAR Part 49, Terminations of Contracts

Rules of the United States Court of Federal Claims

Rules of the Armed Services Board of Contract Appeals
CHAPTER THIRTEEN Contracting Issues for the Commander 613

COMMUNICATIONS WITH INDUSTRY/INTERFACING 

WITH CONTRACTORS

Air Force leaders should engage with industry on matters of mutual interest for the 

purpose of learning about private sector products, systems, and innovations that might 

improve our warfighting capabilities, the way we care for Airmen, and our stewardship 

of taxpayer dollars. Private sector collaboration and information-gathering benefit both 

parties and are in the public interest. However, such engagement efforts by Air Force 

personnel must also meet the high ethical standards expected of all Airmen and must 

comply with the laws and DoD regulations on procurement and ethical conduct.

- Meetings are generally permitted subject to the following guidelines:

-- Ensure the purpose of the meeting is clear. The nature and types of information 

shared or obtained during these meetings must not provide the commercial 

entity with an unfair competitive advantage.

-- Include other interested or potentially interested parties and commercial entities in such meetings if possible and practical to avoid the appearance you are 

providing exclusive access to a particular company or group

--- If you meet exclusively with one entity—and another entity requests the 

same opportunity—then you should honor the request to avoid any perception of unfair or preferential treatment. Commanders must maintain an 

impression of equal access.

-- Avoid meeting alone with industry. Meetings should include more than one Air 

Force representative to ensure discussions are accurately recorded and properly 

characterized.

-- Focus discussions on topics the Air Force can share publicly and on publiclyavailable information the Air Force would share with any interested party. Avoid 

discussing proprietary or procurement-sensitive information, but if it arises, you 

are legally obligated to protect it from disclosure to third parties.

-- Do not discuss ongoing procurements or litigation

-- Do not invite other contractor personnel into the meeting. If support contractor 

personnel are necessary, the senior Air Force participant should clearly identify 

the contractor personnel.
614 The Military Commander and the Law

--- A commercial entity may require support contractor personnel to sign a 

nondisclosure agreement as a condition of participation

--- In accordance with the Trade Secrets Act, government employees will not 

sign nondisclosure agreements due to their affirmative duty under federal 

law to protect business trade secrets and proprietary information

References

Trade Secrets Act, 18 U.S.C. § 1905 

DoD 5500.07-R, Joint Ethics Regulation, including through Change 7 (17 November 2011)

SAF/GC Memorandum, Engagement with Industry (31 March 2015), with Attached DepSecDef 

Memorandum, Policy for Communication with Industry (21 June 2010)
CHAPTER THIRTEEN Contracting Issues for the Commander 615

CONFLICTS OF INTEREST 

(PERSONAL AND ORGANIZATIONAL)

The Federal Acquisition Regulation (FAR) requires government business to be conducted 

in a manner above reproach and, except as authorized by statute or regulation, with 

complete impartiality and with preferential treatment for none. The general rule is to 

strictly avoid any conflict of interest or even the appearance of a conflict of interest 

in government-contractor relationships. Various federal laws and regulations prohibit 

personal or organizational conflicts of interest or the appearance of such conflicts.

Personal Conflicts of Interest (PCIs)

- Air Force employees (military and civilian) are prohibited from participating personally and substantially (e.g., making a decision, giving advice, or making a recommendation) in any government matter that would have a direct and predictable 

effect on the financial interests of:

-- The employee, employee’s immediate family, or general partner;

-- An organization for which the employee serves as an officer, director, trustee, 

general partner, or employee; or

-- A company or organization with which the employee is negotiating for employment or has an arrangement for future employment

- Air Force employees also should not participate in a particular government matter 

if the employee believes a reasonable person with knowledge of the facts would 

question his or her impartiality unless the employee’s supervisor and ethics counselor 

determine that the government’s interest outweighs the appearance of a conflict. 

Such a determination is required where an employee’s participation matter would 

affect the financial interests of:

-- A person or organization with which the employee has a business, contractual, 

or other financial relationship, or is an active participant (e.g., committee chair 

or project officer);

-- A member of the employee’s household or a relative with whom the employee 

has a close personal relationship;

-- An organization for which the employee’s spouse, parent, or dependent child 

works (as an officer, employee, consultant, etc.); or

-- An organization the employee has worked for in the past year
616 The Military Commander and the Law

Organizational Conflicts of Interest (OCIs)

- OCIs are situations where, because of other activities or relationships, a contractor 

or potential contractor is: unable or potentially unable to render impartial assistance 

to the Government; in a situation of impaired or potentially impaired objectivity; or, 

has an unfair competitive advantage

- There are three types of OCIs:

-- Unequal Access to Information: a contractor’s access to nonpublic information 

may give it an unfair advantage in future competitions

-- Biased Ground Rules: a contractor’s involvement in defining requirements, preparing work statements, or developing business cases could skew a competition 

in its own favor

-- Impaired Objectivity: a contractor’s judgment or objectivity in performing a 

contract may be impaired because its performance may affect its other activities 

or interests

- Contracting officers are responsible for identifying and evaluating OCIs as early as 

possible in the acquisition process and avoiding, neutralizing, or mitigating significant potential OCIs before contract award

- The contracting officer is prohibited from awarding a contract where an OCI cannot 

be avoided or mitigated, unless an OCI waiver is approved by the agency head or 

designee (Deputy Assistant Secretary of the Air Force for Contracting)

- Since OCIs call into question the integrity of the procurement process, no specific 

prejudice must be proven to justify a sustained protest when it is challenged by a 

competing offeror

References

18 U.S.C. § 208 

5 C.F.R. § 2635.502

FAR 9.5, Organizational and Consultant Conflicts of Interest

Michael J. Farr, Organizational Conflicts of Interest (OCIs), What Every Contract Law Attorney 

Needs to Know, AFJAGS The Reporter, Vol. 42, No. 3, at 44 (2015)

Keith R. Szeliga, Conflict and Intrigue in Government Contracts: A Guide to Identifying and 

Mitigating Organizational Conflicts of Interest, 35 Pub. Cont. L.J. 639 (2006)
CHAPTER THIRTEEN Contracting Issues for the Commander 617

PROCUREMENT INTEGRITY ACT

The Procurement Integrity Act and its amendments regulate the conduct of federal 

employees who are involved in procurements and the administration of contracts. The 

fundamental idea behind the Procurement Integrity Act is that government employees 

have a duty to put the best interests of the U.S. Government first.

WARNING: This is a complex and constantly changing area of the law, and you should 

contact your local ethics counselor if you have any questions!

- Employees involved in the procurement process must report any employment discussions (“contact”) they have with contractors to their supervisors and designated 

agency ethics official, and must disqualify themselves from further contract work if 

they do not immediately reject the “contact”

-- For purposes of the Procurement Integrity Act, “contact” includes “seeking 

employment.” An employee is “seeking employment” when:

--- Engaging in negotiations for employment with any person;

--- Making an unsolicited communication to any person regarding possible 

employment with that person; or

--- Making a response other than immediate rejection of the possible 

employment

-- Unsolicited communications from offerors regarding possible employment are 

also considered “contacts”

- Certain employees who are significantly involved in procurements or the administration of contracts, either of which are valued at $10 million or greater, are prohibited 

from working for the contractor for a period of 1 year following their involvement

-- This compensation ban extends only to the prime contractor. A former official 

is not prohibited from accepting compensation from a division or affiliate of 

a contractor provided the product or service is different from the contracted 

product/service.

- The Procurement Integrity Act also prohibits: knowingly disclosing or obtaining 

contractor bid or proposal information or source selection information, other than 

as provided for by law
618 The Military Commander and the Law

- Government personnel may request an advisory opinion from their designated 

agency ethics official as to whether specific conduct would violate the Joint Ethics 

Regulation or the Procurement Integrity Act. Procurement personnel should obtain 

advisory opinions when necessary.

References

Procurement Integrity Act, 41 U.S.C. §§ 2101-2107

FAR Subparts 2.101 and 3.104, Procurement Integrity 

DoD 5500.07-R, Joint Ethics Regulation, including through Change 7, 17 November 2011
CHAPTER THIRTEEN Contracting Issues for the Commander 619

SUSPENSION AND DEBARMENT

The Federal Acquisition Regulation (FAR) requires agencies to solicit offers from, award 

contracts to, and consent to subcontracts with responsible contractors only. Suspension 

and debarment are discretionary administrative actions that are an appropriate means 

to effectuate this policy. The serious nature of debarment and suspension requires that 

these remedies be imposed only in the public interest for the government’s protection and not for purposes of punishment. The Deputy General Counsel for Contractor 

Responsibility and Conflict Resolution (SAF/GCR) serves as the Air Force Debarring and 

Suspending Official (SDO).

Definitions

- Suspension: Action taken by the agency SDO upon to disqualify a contractor temporarily from government contracting and government-approved subcontracting 

(normally not more than 12 months in the absence of an indictment), pending the 

completion of investigation and any ensuing legal proceedings

- Debarment: Action taken by the agency SDO to exclude a contractor from government contracting and government-approved subcontracting for a reasonable, specified period, normally not more than 3 years

Reasons

- Contractors can be debarred or suspended for a number of reasons, including:

-- Commission or failure to disclose fraud or a criminal offense in connection with 

obtaining, attempting to obtain, or performing a public contract or subcontract

-- Commission of embezzlement, theft, forgery, bribery, falsification or destruction 

of records, making false statements, tax evasion, violating federal criminal tax 

laws, receiving stolen property or any other offense indicating a lack of business 

integrity

-- Failure to perform in accordance with the terms of a government contract or 

subcontract so serious as to justify debarment; typically such conduct is willful

-- Any other cause of so serious or compelling a nature that it affects the present 

responsibility of the contractor or subcontractor
620 The Military Commander and the Law

Consequences

- Contractors who are suspended, proposed for debarment, or debarred are ineligible 

to receive any new contract awards, task orders under indefinite-delivery, indefinitequantity contracts, orders under the federal supply schedule contracts or new work, 

option exercises, or extensions of duration on current contracts or orders

- The suspension/debarment extends to all contracts or potential contracts with the 

federal government

References

FAR Subpart 9.4, Debarment, Suspension, and Ineligibility

AFI 51-1101, The Air Force Procurement Fraud Remedies Program (21 October 2003), including 

administrative changes, 30 November 2011
CHAPTER THIRTEEN Contracting Issues for the Commander 621

THE AIR FORCE COMMUNITY PARTNERSHIP PROGRAM 

(AFCP) AND INTERGOVERNMENTAL SUPPORT 

AGREEMENTS (IGSAS)

The AFCP offers opportunities to military installations and local communities to partner 

and achieve mutual value and benefit. The goal of the AFCP is to leverage military installation and local community capabilities and resources to obtain value and benefit in 

support of the Air Force mission. The AFCP is currently working with 53 installations and 

local communities.

- Examples of successful AFCP initiatives include:

-- Robins Air Force Base, Georgia: Entered into an agreement for Air Force physicians 

and dentists to attend renewal certification training at local community hospitals, 

resulting in cost savings of more than $434,000 for the Air Force and up to $2 

million for the community

-- Ellsworth Air Force Base, South Dakota: Leased underutilized base facilities to 

a health care management firm with lease income equal to $635,000, thereby 

creating jobs, income to offset base operating costs, and access to base services 

for the firm’s employees

-- Hill Air Force Base, Utah: Established a satellite pharmacy in underutilized space 

in the new base exchange, increasing the number of prescriptions filled, recapturing workload from the retail network pharmacies, increasing foot traffic and sales 

in the exchange facility, and saving an estimated $3.1 million in prescription costs 

over the last 13 months

- To enter into the AFCP, the wing commander must contact SAF/IEI

-- Installation leadership must fully support the concept (with MAJCOM concurrence)

-- Community leaders must fully support the program

- In addition to the AFCP, 10 U.S.C. § 2679 authorizes the service secretaries to enter 

into IGSAs with state and local governments to provide, receive, or share installation 

support services if the Secretary determines the agreement will serve the best interests of the department by enhancing mission effectiveness or creating efficiencies 

or economies of scale

-- SAF/IEI must approve all IGSAs

-- The term of an IGSA may not exceed 5 years
622 The Military Commander and the Law

References

10 U.S.C. § 2679 

AFPD 90-22, Air Force Community Partnership Program (24 July 2014)

SAF/AQC/IEI Memorandum, Air Force Community Partnership (AFCP) Program; 10 U.S.C. § 2679 

“Installation Support Services: Intergovernmental Support Agreements (IGSA)”

(24 August 2015)
CHAPTER THIRTEEN Contracting Issues for the Commander 623

CONGRESS AND APPROPRIATIONS TO THE AIR FORCE

Congress has the authority to appropriate funds and to establish the conditions governing the use of those funds. Once those funds are authorized and appropriated, additional 

administrative apportionments and subdivisions occur before funds can be obligated 

or expended.

Constitutional “Power of the Purse”

- U.S. Constitution, Art. I, § 8 gives Congress the authority to “pay the Debts and provide 

for the common Defence and general Welfare of the United States” and to “make all 

Laws which shall be necessary and proper for carrying into Execution the [powers 

listed in Art. I, § 8]....”

- U.S. Constitution, Art. I, § 9, states that “No Money shall be drawn from the Treasury, 

but in Consequence of Appropriations made by Law....”

Authorizations and Appropriations

- Annual authorization acts authorize the appropriation of funds for programs and 

activities and usually contain restrictions and limitations on the obligation of appropriated funds. An authorization act does not provide budget authority. That authority 

stems from the appropriations act.

- Appropriation acts contain express statutory authorization “to incur obligations and 

make payments out of the Treasury for specified purposes”

-- Air Force funding primarily comes from the annual DoD Appropriations Act and 

the Military Construction Appropriations Act

References

U.S. Constitution, Art. I, §§ 8-9

31 U.S.C. §§ 1301(d), 1514

A Glossary of Terms Used in the Federal Budget Process, GAO-05-734SP (September 2005)

OMB Cir. A-11, Preparation, Submission, and Execution of the Budget, § 150.7 (2015)

DoD 7000.14-R, Financial Management Regulation, Vol. 3, Ch. 14 (May 2015)

AFI 65-601, Budget Guidance and Procedures, Vol. 1 (16 August 2012), incorporating Change 1, 

29 July 2015

Principles of Fed. Appropriations Law, Vol. I, Ch. 2, GAO-04-261SP (3d ed. 2004)
624 The Military Commander and the Law

FOUNDATIONS OF FISCAL LAW

Fiscal law requires the commander to have affirmative authority to use funds for a 

particular purpose. This is unlike many other areas of the law that permit commanders 

to exercise authority not expressly prohibited to complete the mission. Expenditure of 

funds requires Congress to have authorized and appropriated funds. The three pillars of 

affirmative authority are “purpose, time, and amount.”

Purpose 

- Funds may be expended only for the purpose intended by Congress

-- Not every expenditure is required to be specified in an appropriations act

-- The Government Accountability Office (GAO) applies a three-part test to determine whether an expenditure is a “necessary expense” and meets the purpose 

of a particular appropriation:

--- The expenditure must be necessary and incident to the purposes of the 

appropriation 

--- The expenditure must not be prohibited by law

--- The expenditure must not otherwise fall within the scope of another appropriation or statutory funding scheme

- Examples of common issues regarding questionable expenses:

-- Bottled Water: Generally a personal expense with some exceptions for disasters 

and locations where no potable water exists

-- Personal Office Furniture and Equipment: If items only serve a single individual 

(exception for handicapped employees)

-- Clothing: Generally a personal expense with limited exceptions

-- Payment of Fines and Penalties: For example, an employee receives a moving 

violation citation while driving a government owned vehicle (GOV)

-- Food: Generally a personal expense with some exceptions for certain situations 

involving training, conferences, and award ceremonies
CHAPTER THIRTEEN Contracting Issues for the Commander 625

Time

- An agency may obligate funds only within the time limits applicable to the appropriation. The following are some common DoD appropriations and their typical period 

of availability:

-- Installation operation and maintenance (O&M) funds, 1 year;

-- Research, development, test and evaluation (RDT&E) funds, 2 years;

-- Procurement funds, 3 years; and

-- Military construction (MILCON) funds, 5 years

- Bona Fide Needs Rule: Generally, government agencies may not purchase goods or 

services they do not require for the current fiscal year

-- Agencies may only obligate funds to fill a requirement once the bona fide need 

exists

--- Current year money for current year needs

--- Generally, the time limitations apply to the obligation of funds and not the 

disbursement or payment of the funds

-- The bona fide need for a supply is generally determined by when the government 

actually requires the supplies

--- Delivery Lead-Time Exception: This exception allows agencies to use current 

year money to procure supplies that will not be used during the current fiscal 

year when (1) the agency currently requires the supply, and (2) the delay is 

due to delivery lead time

--- Production Lead-Time Exception: This exception allows agencies to use current 

year money to procure supplies that will not be used during the current fiscal 

year when (1) the agency requires the supply in the next fiscal year, and (2) in 

order to use the supply when required the agency must fund production now

--- Stock-Level Exception: This exception permits agencies to purchase sufficient 

readily available common-use standard type supplies to maintain adequate 

and normal (reasonable) stock levels
626 The Military Commander and the Law

---- Stockpiling of supplies in excess of normal usage requirements is 

prohibited

-- The bona fide need for services does not arise until the services are rendered 

and must be funded with funds current as of the date the services are performed

--- Non-severable Services: A service is non-severable if the service produces a 

single or unified outcome, product, or report that cannot be subdivided for 

separate performance in different fiscal years

---- An example of a non-severable service is a research contract for a 3 year 

study on migratory birds and the purpose is to publish a final report

---- The government must fund non-servable services contracts with dollars 

available for obligation at the time the contract is executed and performance of the contract may cross fiscal years

--- Severable Services: A service is severable if it can be separated into components that independently meet a need of the government

---- Must be a bona fide need of the fiscal year in which performed

---- DoD agencies may obligate funds current at the time of contract award 

to finance a severable services contract with a period of performance 

that does not exceed 1 year (may cross fiscal years)

- Every appropriation has a period of availability during which money can be obligated 

from the appropriation

- Expired and Closed Funds: Generally, an appropriation is available for new obligations only during its period of availability. Once the period of availability lapses, the 

appropriation will expire and eventually close.

-- Expired Appropriation: An appropriation whose period of availability has ended 

and is no longer available for new obligations

--- Adjustment and liquidation of previously incurred obligations may occur 

for 5 years

--- Retains its complete accounting classification identifiers throughout the 5 

year period
CHAPTER THIRTEEN Contracting Issues for the Commander 627

--- Exceptions to the prohibition on obligating funds after the period of 

availability:

---- Contract modifications affecting price

---- Bid protests

---- Terminations for default

---- Terminations for convenience (in limited circumstances)

-- Closed Appropriation: An appropriation that is no longer available for any purpose

--- An appropriation becomes “closed” 5 years after the end of its period of availability as defined by the applicable appropriations act

--- All remaining balances in the account, obligated or unobligated, are canceled

Amount

- An agency must obligate funds within the amounts appropriated by Congress. In 

other words, do NOT spend more money than Congress has authorized the agency 

to spend.

The Anti-Deficiency Act (ADA)

- The ADA was originally enacted by Congress to prevent the federal government from 

making expenditures in excess of the amounts that Congress appropriated

-- Under the ADA an officer or employee of the U.S. Government may not:

--- Make or authorize an expenditure or obligation exceeding an amount available in an appropriation unless authorized by law

--- Involve the government in a contract or obligation for the payment of money 

before an appropriation is made unless authorized by law

--- Make or authorize an expenditure or obligation exceeding (1) an apportionment or (2) the amount permitted by regulations

--- Accept voluntary services for the United States or employ personal services, 

except for emergencies involving the safety of human life or the protection 

of property or unless authorized by law
628 The Military Commander and the Law

-- Either a purpose or time violation may also lead to an ADA violation

--- These violations can be “corrected.” Officials can avoid an ADA violation if 

both of the following conditions are met:

---- Proper funds were available at the time of the erroneous obligation; and

---- Proper funds were available at the time of correction for the agency to 

correct the erroneous obligation

-- Potential sanctions for ADA violations:

--- Adverse personnel actions

--- Criminal penalties for a knowing and willful ADA violation, a Class E felony, 

include not more than a $5,000 fine, confinement for up to 2 years, or both

References

10 U.S.C. § 2410a 

31 U.S.C. § 1301(a)

Anti-Deficiency Act, 31 U.S.C. §§ 1341, et seq. 

31 U.S.C. § 1341(a)(1)(A), (a)(1)(B)

31 U.S.C. §§ 1342, 1351, and 1517(a)

United States v. MacCollom, 426 U.S. 317 (1976) 

GAO, Principles of Federal Appropriations Law, 4th ed., 2016 (“The Redbook”), http://www.gao.

gov/legal/red-book/about-fourth-edition 

DoD 7000.14-R, Department of Defense Financial Management Regulation (May 2016) 

AFI 65-601, Budget Guidance and Procedures (16 August 2012)

AFI 65-608, Antideficiency Act Violations (18 March 2005)
CHAPTER THIRTEEN Contracting Issues for the Commander 629

CONSTRUCTION FUNDING THRESHOLDS

“Construction” is a term of art when it comes to funding. Construction projects having a 

funded cost up to $1,000,000 may be funded with operations and maintenance funds. 

Projects having a funded cost exceeding $1,000,000 must be funded with military construction funds. Military construction funds may be used for specified and unspecified 

construction projects. The laws governing military construction funding are always subject to change so these dollar thresholds should be verified prior to commencing work.

Specified Military Construction Projects (MILCON)

- Congress specifically authorizes MILCON projects expected to exceed $3 million. The 

specific authorization is located in the conference report accompanying the annual 

Military Construction Appropriations Act.

-- MILCON projects are usually the result of a multi-year long planning, programming, budgeting and execution (PPBE) process

Unspecified Minor Military Construction Projects (UMMC)

- UMMC funds can be used for a project with a cost between $1,000,000 and $3 million (up to $4 million IF the project is intended solely to correct life, health, or safety 

deficiencies)

- Combining UMMC funds with other fund types to accomplish a single requirement 

is prohibited

- An UMMC project costing more than $1,000,000 must have prior Secretary of the Air 

Force (SecAF) approval and requires prior Congressional notification

UMMC Projects Using Operations and Maintenance (O&M) Appropriations

- Congress permits the use of O&M funds for UMMC up to $1,000,000 per project

Maintenance and Repair Projects

- Maintenance and repair projects are not considered construction for funding 

purposes

-- Repairs exceeding $7.5 million must be approved by SAF/IEI and reported to 

Congress
630 The Military Commander and the Law

References

10 U.S.C. §§ 2805, 2811

DoD 7000.14-R, Financial Management Regulation, Vol. 2B, Chapter 6, “Military Construction/

Family Housing Appropriations” (June 2013)

AFI 32-1021, Planning and Programming Military Construction (MILCON) Projects

(31 October 2014)

AFI 32-1032, Planning and Programming Appropriated Fund Maintenance, Repair, and 

Construction Projects (24 September 2015)
CHAPTER THIRTEEN Contracting Issues for the Commander 631

CONTINUING RESOLUTION AUTHORITY 

AND FUNDING GAPS

Because the Anti-Deficiency Act (ADA) generally bars federal agencies from obligating 

funds in the absence of an appropriation, the operations of the Air Force depend heavily 

on Congress enacting annual appropriations bills by the first day of October, the beginning of the federal government’s fiscal year. When such appropriations are not enacted, 

Congress may pass a continuing resolution bill. If Congress fails to enact either its annual 

appropriations bills or a continuing resolution, a funding gap occurs.

Continuing Resolution Authority

- A continuing resolution (CR) is an appropriation act that provides budget authority 

for federal agencies, specific activities, or both to continue in operation when Congress fails to pass, or the President fails to sign an appropriation act by the beginning 

of the fiscal year

-- Congress routinely enacts 12 annual appropriations bills to fund federal activities

-- Between fiscal years 1977 and 2015, Congress passed 172 CRs to maintain funding 

for federal activities; this is an average of 4 CRs per fiscal year during the period

- In recent years, CRs have contained several key components, including:

-- Activities Funded by the CR: Most often, CRs refer back to the activities or programs authorized and funded in the previous year’s appropriations

--- Thus, commanders generally may not fund “new starts” while operating 

under a CR. “New starts” are activities and programs that were not authorized 

by Congress under a previous year’s appropriations.

--- However, if Congress authorized a program or activity under a previous year’s 

appropriation and an agency chose not to fund the program during the fiscal 

year, the commander would normally still be authorized to fund the program 

or activity under the following fiscal year’s CR

--- CRs sometimes contain express authority for new programs and activities

-- Duration of the CR: The duration specifies the time period of the CR, which could 

range from a single day to the remainder of the fiscal year
632 The Military Commander and the Law

--- Commanders and their contracting officials must remain aware of the expiration status of CRs to ensure funds are not inadvertently obligated during a 

funding gap

-- Funding Rate of the CR: Unlike regular appropriations which specify amounts, 

CRs typically designate funding rates, which are formulas used for determining 

the amounts available under the CR

--- The amounts are apportioned and published in a bulletin by the Office of 

Management and Budget (OMB) after enactment of the CR

--- A CR’s designated funding rate could produce an amount greater than, equal 

to, or less than the previous fiscal year’s appropriation. Accordingly, commanders must be prepared to continue operations with less funding if a CR’s 

funding rate so requires.

Funding Gaps

- A funding gap is a period where no annual appropriations exist against which agencies can obligate the government. Although a funding gap often occurs at the end 

of a fiscal year, it may also occur at any time a CR expires without Congress enacting 

another CR or annual appropriation.

-- Between fiscal years 1977 and 2014, 18 funding gaps occurred among 13 separate fiscal years (several fiscal years experienced multiple funding gaps)

-- Funding gaps are distinguishable from a “shutdown” in that shutdowns result 

from a prolonged funding gap (generally more than 1-2 days). Funding gaps 

lasting more than 1-2 days normally require agencies to implement shutdown 

procedures.

- Because the ADA generally bars the obligation of funds in the absence of an appropriation, commanders are significantly limited in regards to what operations they 

may continue during a funding gap

-- “Excepted” Activities: One exception to the ADA during a funding gap is that any 

activities affecting the “safety of human life or the protection of property” are 

allowed to continue. Such activities are often labeled as “excepted” when:

--- There is a reasonable and articulable connection between the function to be 

performed and the safety of human life or the protection of property; and
CHAPTER THIRTEEN Contracting Issues for the Commander 633

--- There is some reasonable likelihood that either or both would be compromised in some significant degree by the delay in the performance of the 

function

-- Multi-year & Revolving Funds: Operations and activities that are funded by unexpired, multi-year appropriations or revolving funds are also not affected by a 

funding gap involving annual appropriations

-- Authorized by Statute: Another exception to the ADA is when a federal statute 

explicitly authorizes the agency to obligate funds in advance of appropriations. 

For example, 41 U.S.C. § 11, the Feed and Forage Act, allows the DoD to obligate 

funds in advance of an appropriation in order to procure essential supplies during 

times of emergency.

- During funding gaps and shutdowns commanders and Air Force leaders should 

always seek the most current guidance regarding continued operations from their 

chain of command, staff judge advocates (SJAs), and finance advisors. The following 

non-exhaustive list summarizes some of the DoD activities often excepted during 

these lapses in appropriations:

-- Military personnel serving on active duty, regardless of affiliation with excepted 

or excepted activities

-- The minimum number of civilian employees required to carry out excepted 

activities

-- Military permanent change of station (PCS) moves to an excepted activity; or 

from an excepted activity if commander of excepted activity determines it is 

essential to mission

-- Temporary duty (TDY) travel directly related to safety of human life or the protection of property, including national security and foreign relations (oftentimes 

requires high-level approval)

-- Contracts fully-funded before previous appropriation expired, regardless of 

whether they support an excepted activity. New contracts and incrementally 

funded contracts may also continue if they support an excepted activity.
634 The Military Commander and the Law

References

Anti-Deficiency Act, 31 U.S.C. §§ 1341–1342, 1511–1519

Feed and Forage Act, 41 U.S.C. § 11

Congressional Research Service Report, Continuing Resolutions: Overview of Components and 

Recent Practices, R42647 (July 16, 2015)

GAO Redbook, Vol. II, 8-16 & 6-146 (3d. ed. 2006)

OMB Circular A11, Section 123, Apportionments under Continuing Resolutions Section & Section 

124, Agency Operations in the Absence of Appropriations (2015)

Congressional Research Service Report, Federal Funding Gaps: A Brief Overview, RS20348 

(October 11, 2013)

Memorandum, Office of Legal Counsel, Department of Justice, Opinion for the Director Office of 

Management and Budget (August 16, 1995)

Memorandum, Deputy Secretary of Defense, Guidance for Continuation of Operations during a 

Lapse of Appropriations (September 25, 2015)
CHAPTER THIRTEEN Contracting Issues for the Commander 635

CONTRACTOR PERSONNEL AUTHORIZED TO 

ACCOMPANY THE U.S. ARMED FORCES

Contractors support military forces overseas today more than ever. Commanders must 

understand the basic rules and policies regarding contractor personnel overseas.

Contingency Contractor Personnel: Includes defense contractors and employees of 

defense contractors and associated subcontractors, including U.S. citizens, U.S. legal 

aliens, third country nationals (TCN), and citizens of host nations who are authorized to 

accompany U.S. military forces in contingency operations or other military operations, or 

exercises designated by the geographic combatant commander. This includes employees 

of external support, systems support, and theater support contractors. Such personnel 

are provided with an appropriate identification card under the Geneva Conventions.

Contractors Authorized to Accompany the Force (CAAF): A sub-category of “contingency 

contractor personnel.” CAAF are employees of system support and external support contractors, and associated subcontractors, at all tiers, who are specifically authorized in their 

contract to deploy through a deployment center or process and provide support to U.S. 

military forces in contingency operations or in other military operations, or exercises 

designated by a geographic combatant commander. CAAF includes forward-deployed 

system support and external support. Such personnel are provided with an appropriate 

identification card under the Geneva Conventions. CAAF do not include TCN or local 

national personnel hired in theater using local procurement, e.g., day laborers.

International Law and Contractor Legal Status

- Contractors may support military operations as civilians accompanying the force, 

so long as:

-- They are designated as such by the force they accompany

-- They are provided with an appropriate identification card

- Contingency contractor personnel may be at risk of injury or death incidental to 

enemy actions while supporting military operations

- Contingency contractor personnel may support contingency operations through 

indirect participation in military operations, such as by providing communications support, transporting munitions and other supplies, performing maintenance 

functions for military equipment, and providing logistic services such as billeting, 

messing, etc.
636 The Military Commander and the Law

- If captured during armed conflict, and if they have proper authorization, contingency 

contractor personnel accompanying the force are entitled to prisoner of war status

- Subject to the application of international agreements, contingency contractor 

personnel must comply with applicable host nation and third country nation laws

- Contingency contractor personnel remain subject to U.S. laws and regulations and 

may be subject to prosecution

- The contracting officer will issue a letter of authorization to CAAF, which will be 

required to process through a deployment center, and to travel to, from and within 

the area of responsibility (AOR)

Medical Issues

- Defense contractors must provide medically and physically qualified contingency 

contractor personnel

- Secretary of Defense may direct immunizations as mandatory for CAAF performing 

DoD essential contractor services

- In general, defense contractors must provide their own medical care. The government 

may provide resuscitative care, stabilization, hospitalization at level III military treatment facilities, and assistance with patient movement in emergencies where loss of 

life, limb or eyesight could occur. Refer to the underlying contract to determine the 

exact level of medical care agreed upon.

- Generally, costs associated with the treatment and transportation of contingency contractor personnel to the selected civilian facility are reimbursable to the government

Individual Protective Equipment

- Generally, contractors shall be required to provide all life, mission, and administrative 

support to its employees necessary to perform the contract

- The component commander may decide it is in the government’s interest to provide 

selected life, mission, and administrative support to some contingency contractor 

personnel. This equipment shall typically be issued before deployment to the AOR 

and must be returned to the government, otherwise accounted for, or purchased, 

after use.
CHAPTER THIRTEEN Contracting Issues for the Commander 637

Uniforms

- The individual contractor or contingency contractor personnel are responsible for 

providing their own personal clothing, including casual and work clothing required 

by the particular assignment

- Generally, commanders shall not issue military clothing to contingency contractor 

personnel or allow the wearing of military or military look-alike uniforms. However, 

geographic combatant commanders may authorize certain contingency contractor 

personnel to wear standard uniform items for operational reasons.

-- This authorization shall be in writing and carried by authorized contingency 

contractor personnel

-- Care must be taken to ensure, consistent with force protection measures, the 

contingency contractor personnel are distinguishable from military personnel 

through the use of distinctive patches, arm bands, nametags, or headgear

Force Protection and Weapons Issuance

- The geographic combatant commanders must develop a security plan for protection 

of those contingency contractor personnel in locations where there is not sufficient 

or legitimate civil authority and the commander decides that it is in the interests of 

the government to provide security because of any of the following:

-- The contractor cannot obtain effective security services

-- Such services are unavailable at a reasonable cost

-- Threat conditions necessitate security through military means

- Contingency contractor personnel may be armed for individual self-defense, on a 

case-by-case basis, ONLY IF

-- It is determined that military force protection and legitimate civil authority are 

deemed unavailable or insufficient

-- It is authorized by the geographic combatant commander; and

-- It does not violate applicable U.S., host nation, and international law, relevant 

status of forces agreements (SOFAs) or international agreements, or other 

arrangements with local host nation authorities
638 The Military Commander and the Law

- Commanders should consult with their staff judge advocate prior to authorizing the 

arming of contractors

- If weapons are authorized:

-- The government shall provide or ensure weapons familiarization, qualifications, 

and briefings on the rules regarding the use of force

-- Acceptance of weapons by contractor personnel shall be voluntary and permitted by the defense contractor and the contract; and

-- These personnel must not be otherwise prohibited from possessing weapons 

under U.S. law

Security Services

- If consistent with applicable U.S., host nation, and international law, and relevant 

SOFAs or other international agreements, a defense contractor may be authorized 

to provide security services for other than uniquely military functions

- Whether a particular use of contract security personnel to protect military assets is 

permissible is dependent on the facts and requires legal analysis

-- Requests shall be reviewed on a case-by-case basis by the appropriate staff judge 

advocate to the geographic combatant commander

-- Contractors shall be used cautiously in contingency operations where major combat operations are ongoing or imminent. In these situations, contract security 

services will not be authorized to guard U.S. or coalition military supply routes, 

military facilities, military personnel, or military property except as specifically 

authorized by the geographic combatant commander. In November 2006, the 

authority to approve use of contract security services to protect military personnel in Iraq or Afghanistan was delegated to the Commander of the Multinational 

Force-Iraq and to the senior U.S. Forces Commander in Afghanistan.
CHAPTER THIRTEEN Contracting Issues for the Commander 639

References

10 U.S.C. § 802(a)(10)

18 U.S.C. § 2441

18 U.S.C. § 3261

DoDI 3020.41, Operational Contract Support (20 December 2011)

DoDI 3020.50, Private Security Contractors (PSCs) Operating in Contingency Operations, 

Humanitarian or Peace Operations, or Other Military Operations or Exercises (22 July 2009), 

incorporating Change l, 1 August 2011
640 The Military Commander and the Law
641

Standards of Ethical Conduct............................................................................................................642

Financial Disclosure Forms.................................................................................................................644

Gifts to the Air Force.............................................................................................................................647

Gifts of Travel...........................................................................................................................................650

Gifts to Superiors...................................................................................................................................652

Foreign Gifts............................................................................................................................................654

Honoraria .................................................................................................................................................656

Honorary Memberships......................................................................................................................658

Use of Government Owned Vehicles (GOVs)...............................................................................659

Using Government Funds for Mementos and Gifts..................................................................662

Use of Government Communications Systems..........................................................................664

Official Representation Funds (ORF)...............................................................................................668

Off-Duty Employment.........................................................................................................................670

Key Spouse Program............................................................................................................................672

Utilization of Enlisted Aides (EAs)....................................................................................................675

CHAPTER FOURTEEN: ETHICS ISSUES

14
642 The Military Commander and the Law

STANDARDS OF ETHICAL CONDUCT

Each commander has the responsibility of ensuring that the standards of conduct in the 

Joint Ethics Regulation (JER), DoD 5500.07-R, are brought to the attention of all personnel. 

It is fundamental Air Force policy that personnel shall not engage in any personal business 

or professional activity that places them in a position of conflict between their private 

interests and the public interest of the United States. In order to preserve the public 

confidence in the Air Force, even the appearance of a conflict of interest must be avoided.

- Air Force personnel shall not use inside information to further a private gain for 

themselves or others if that information was obtained by reason of their Air Force 

position and is not generally available to the public

- All personnel, upon first assumption of Air Force duties, should be thoroughly 

informed of the provisions of the JER

- Annual reminders of the regulation can be accomplished by requiring unit members 

to read the regulation, by posting bulletin board items, by regularly publishing literature, and providing in-person briefings at unit assemblies

- Personnel may obtain further clarification of the standards of conduct and conflict 

of interest provisions by consulting with their servicing legal office

- Commanders must emphasize that resolution of a conflict of interest must be accomplished as soon as practicable

- The JER prohibits some specific activities, including:

-- Active duty members making personal commercial solicitations or solicited sales 

to DoD personnel junior in rank at any time (on- or off-duty, in- or out-of-uniform), 

particularly for insurance, stocks, mutual funds, real estate, or any other commodities, goods, or services

-- Soliciting or accepting any gift, entertainment, or thing of value from any person 

or company, which is engaged in procurement activities or does business with any 

agency of the DoD (including contractors). There are exceptions to this rule, so if 

offered a gift consult the ethics counselor, normally the staff judge advocate (SJA).

-- Soliciting contributions for gifts to a superior, except voluntary gifts or contributions of nominal value (not to exceed $10) on special occasions like marriage, 

illness, transfer, or retirement
CHAPTER FOURTEEN Ethics Issues 643

-- Active duty military or civilian personnel using their grades, titles, positions, or 

organization names in connection with activities performed in their personal 

capacities

-- Endorsing a non-federal entity, event, product, service, or enterprise (explicit or 

implied). DoD employees must not use their official capacities and titles, positions, or organization names to suggest official endorsement or preferential 

treatment of any non-federal entity except those listed in subsection 32-10 of the 

JER, such as the Combined Federal Campaign and the Air Force Assistance Fund.

-- Accepting employment outside of the Air Force or off-duty, if it interferes with 

or is not compatible with the performance of government duties, or if it might 

discredit the government

-- Unauthorized gambling, while on-base or on-duty

- DoD employees may not participate in their official DoD capacities in the management of non-federal entities without authorization from the DoD General Counsel, 

except under very limited circumstances requiring the approval of SecAF

- DoD employees may, however, serve as DoD liaisons to non-federal entities when 

appointed by the head of the DoD component command or organization who 

determines there is a significant and continuing DoD interest to be served by such 

representation. Liaisons serve as part of their official DoD duties, under DoD component memberships, and represent only DoD interests to the non-federal entity in 

an advisory capacity.

- The JER imposes annual financial reporting requirements for officers in the grade 

of O-7 or above and other government officials such as commanding officers and 

procurement officials. See Financial Disclosure.

Reference

DoD 5500.07-R, Joint Ethics Regulation (30 August 1993), incorporating through Change 7, 

17 November 2011
644 The Military Commander and the Law

FINANCIAL DISCLOSURE FORMS

The DoD currently uses two different financial disclosure forms, the OGE 450 and the 

OGE 278e. The Joint Ethics Regulation (JER) describes who must file, outlines the required 

contents in these reports, and specifies filing times. Which form an individual must use 

depends on the rank or grade and responsibilities of that individual. Air Force policy 

requires OGE 278e filers to use the Financial Disclosure Management (FDM) on-line 

reporting system, unless electronic filing is not practically possible, such as in a deployed 

or extremely remote location. Air Force policy highly encourages OGE 450 filers to use 

the FDM system. FDM utilizes the most current OGE forms and builds upon prior years’ 

inputs to reduce duplication of efforts. However, OGE 278e filers are also required to file 

monthly OGE 278T periodic transaction reports. This capability is not yet built into FDM. 

Contact your servicing staff judge advocate (SJA) to determine whether FDM is available 

at your location.

Confidential Financial Disclosure Report (OGE 450)

- Persons required to file this form include:

-- Commanding officers, heads and deputy heads of all installations or activities, 

if the military member is O-6 and below or if a civilian, is GS-15 or below. Commanders, heads, and deputy heads who are general officers or senior executive 

service employees file the OGE 278e report exclusively.

-- All military members (O-6 and below) and all civilian employees (GS/GM-15 and 

below) when the official position of such employees or members requires them to 

participate personally and substantially in taking an official action for contracting 

or procurement, or if the supervisor of such employee or member determines the 

position requires such a report to avoid an actual or apparent conflict of interest

-- If any questions exist as to whether an individual should file such a report, contact 

the servicing SJA

- The specific requirements for the content of this report are set forth in Chapter 7 of 

the JER. Several of these requirements are worth highlighting:

-- The report must provide sufficient information about the individual, as well as 

the individual’s spouse and dependent children, that an informed judgment can 

be made regarding compliance with conflict of interest laws
CHAPTER FOURTEEN Ethics Issues 645

-- No disclosure of amounts or values is required

-- This report must be filed within 30 days after assuming a covered position and 

annually thereafter

- Annual reports are submitted to the servicing SJA no later than 15 February for the 

preceding calendar year

Public Financial Disclosure Report (OGE 278e)

- Persons required to file this form include:

-- Regular and reserve officers whose grade is O-7 or above

-- Members of the senior executive service

-- Civilian employees whose positions are classified above GS/GM-15 or whose 

rate of basic pay is fixed at or above 120 percent of the minimum rate of basic 

pay for a GS/GM-15

- The specific requirements for the content of this report are also set forth in Chapter 

7 of the JER

-- Generally, this report is far more detailed in content than the OGE 450

-- Although specific amounts are not required on the report, individuals must 

indicate the value of assets within both a given range and type of asset

-- General officers must report a mortgage on their personal residence

- This report must be filed within 30 days after assuming a covered position

- Annual reports must be filed between 1 January and 15 May and cover the preceding 

calendar year

- An individual must also file a termination report within 30 days after terminating 

a covered position unless, within 30 days, the individual assumes another covered 

position

- Late reports are subject to a $200 penalty, absent an approved extension
646 The Military Commander and the Law

Periodic Transaction Report (OGE 278T)

- Must be filed by OGE 278e filers who conduct the sale, purchase, or exchange of 

stocks, bonds, and other securities held by the filer, the filer’s spouse, or dependent 

children with a transaction value exceeding $1000

- Filed on a monthly basis (usually by the 15th of every month)

- Negative reports not required

- Reports are considered late (subject to the $200 penalty), absent an approved request 

for an extension, if they are filed more than 30 days after they are due (i.e., 30 days after 

notification of a covered transaction or 45 days after the actual covered transaction)

- FDM does not yet have OGE 278T capability. Filers should use the fillable PDF form.

- Completed forms should be sent to the servicing SJA office who will attach the report 

to the filer’s last annual incumbent report in FDM

-- This will allow the filer to use the OGE 278T reports when building next year’s 

annual OGE 278e incumbent report, Schedule B (Transactions)

References

DoD 5500.07-R, Joint Ethics Regulation (30 August 1993), incorporating through Change 7, 

17 November 2011

U.S. Department of Defense Standards of Conduct Office, http://www.dod.mil/dodgc/

defense_ethics/

OGE 278e, OGE 278T and OGE 450 are, http://www.oge.gov/
CHAPTER FOURTEEN Ethics Issues 647

GIFTS TO THE AIR FORCE

Acceptance of Gifts 

- 10 U.S.C. § 2601 provides general statutory authority to accept gifts to the Air Force

-- AFI 51-601, Gifts to the Department of the Air Force, provides gift acceptance 

authorities and procedures

- Gifts of personal property more than $50,000 and real property more than $10,000 

must be accepted by the Secretary of the Air Force (SecAF)

-- Gifts of lesser amounts may be accepted by MAJCOM commanders and other 

officials

-- Installation commanders may accept gifts of personal property up to $5000 value

Types of Gifts 

- Unconditional gifts have no conditions attached to them

- Conditional gifts have specific conditions tied to their acceptance (e.g., a gift of $15 

million to construct a new library wing at the United States Air Force Academy)

Rejecting Gifts

- Gifts may be rejected under the following circumstances:

-- Acceptance involves expending funds in excess of amounts appropriated by 

Congress

-- The offered item is extremely dangerous

-- The offered item is in bad taste

-- Acceptance of the gift would raise a serious question of impropriety in light of 

the donor’s present or prospective business relationships with the Air Force

-- The cost of acceptance and maintenance is disproportionate to any benefit

-- Acceptance would not be in the best interest of the Air Force
648 The Military Commander and the Law

Gifts for Distribution

- AFI 51-601, Chapter 5, governs gifts that are received for distribution to individual 

Airmen

-- These types of gifts must be used for health, comfort, convenience, or morale

-- Examples include sporting tickets, handheld electronic devices, and toiletry kits

Recognition of Donors is Limited

- Receiving commanders may send an appropriate letter of thanks

- Do not grant special concessions to donors

- Do not initiate publicity for donors

- If the gift itself is worthy of a press release (e.g., new USAFA library wing) then the 

release may discuss the fact of the gift and the identity of the donor without emphasis

Gifts of Voluntary Service 

- 10 U.S.C. § 1588 permits installation commanders to accept the gift of volunteer 

services in the following areas:

-- Voluntary medical services, dental services, nursing services, or other health-care 

related services

-- Voluntary services to be provided for a museum or a natural resources program

-- Voluntary services provided for programs providing services to members of the 

armed forces and their families, including the following programs: family support, child development and youth services, library and education, religious, 

employment assistance to spouses of military members, and morale, welfare, 

and recreation

-- Volunteers must complete DD Form 2793
CHAPTER FOURTEEN Ethics Issues 649

References

10 U.S.C. § 1588 

10 U.S.C. § 2601

DoDI 1100.21, Voluntary Services in the Department of Defense (11 March 2002), incorporating 

Change 1, 26 December 2002

AFI 51-601, Gifts to the Department for the Air Force (26 November 2003)

DD Form 2793, Volunteer Agreements (May 2009)
650 The Military Commander and the Law

GIFTS OF TRAVEL

Acceptance of Gifts

- Non-federal entities (NFE) may gift the cost of an employee’s travel to the Air Force 

pursuant to 31 U.S.C. § 1353

- Allowable costs include transportation, lodging, meals and conference registration 

fees

- To allow employees to attend a “meeting” which includes meetings, conferences, 

speaking engagements and events where the employee receives a public service 

award from the NFE

- Approval level for acceptance of travel benefits is at the “highest practical administrative level”

-- Travel benefits must be accepted in advance

Travel Payments

- In-kind provision of travel, lodging and meals is preferred as NFE funds should not 

pass directly through employee’s hands

- In the continental United States (CONUS), the cost of lodging provided may exceed 

the authorized per diem rate if similar lodging is provided to all other attendees/

speakers

-- Outside of continental United States (OCONUS), the cost of lodging provided 

may not exceed the Department of State area per diem rate

- Travel benefits accepted must be reported to SAF/GCA on the semi-annual SF 326, 

Semiannual Report of Payments Accepted from a Non-Federal Source
CHAPTER FOURTEEN Ethics Issues 651

Spouse Travel

- NFE may also pay for travel for employee’s spouse if:

-- Spouse attendance supports Air Force mission;

-- Employee is to receive award or honorary degree from NFE; or

-- Spouse participates in substantive programs related to Air Force programs/

operations

References

31 U.S.C. § 1353

41 C.F.R. Part 304

SF 326, Semiannual Report Of Payments Accepted From A Non-Federal Source
652 The Military Commander and the Law

GIFTS TO SUPERIORS

To avoid the appearance that a supervisor is being improperly influenced, the Joint Ethics 

Regulation (JER) issues the following guidelines concerning gifts to superiors.

- Generally, Air Force personnel MAY NOT:

-- Solicit a contribution from other DoD personnel for a gift to a superior

-- Make a donation for a gift or give a gift to a superior

-- Accept a gift from subordinate personnel

- Exceptions to the general rule prohibiting gifts to superiors or their solicitation:

-- On an occasional basis, including occasions where gifts are traditionally given or 

exchanged, items having an aggregate market value of $10 or less per occasion, 

items such as food and refreshments, or personal hospitality at a residence may 

be given to superiors and accepted from subordinates

-- On special, infrequent occasions (marriage, birth of child, etc.) or on occasions 

that terminate the superior-subordinate relationship (retirement, separation, or 

permanent change of station (PCS))

--- Employees may solicit a contribution for a group gift for a special, infrequent 

occasion, as long as the amount solicited does not exceed $10 per person. 

Solicitation must be without pressure or coercion.

--- The general rule is that a DoD employee MAY NOT accept a gift that exceeds 

$300 in value from a group that consists of one or more subordinates to the 

honoree 

---- If an individual donates to more than one donating group, then the 

donating group(s) will be considered to be one donating group and the 

combined value of the gifts from the groups must be $300 or less 

---- There is no limit on the number of donating groups

---- Donating groups should be defined by reasonable and rational parameters and are usually related to the structure of the overall organization 

and individual units within that organization

--- Under all circumstances, gifts must be truly voluntary
CHAPTER FOURTEEN Ethics Issues 653

References

5 C.F.R. §§ 2635.301–2635.304, 3601.104

DoD 5500.07-R, Joint Ethics Regulation (30 August 1993), incorporating through Change 7, 

17 November 2011
654 The Military Commander and the Law

FOREIGN GIFTS

The United States Constitution prohibits persons holding an “office of profit or trust” for 

the United States from accepting gifts from foreign “personages or governments” without 

consent of Congress. Congress has consented to retaining and accepting gifts under 

certain conditions and when following certain procedures.

- This prohibition applies to military members, civilian employees, consultants, and 

their spouses or other dependents. This includes retired and reserve component 

members, regard-less of duty, Air National Guard members, when federally recognized, and their spouses and dependents.

- No DoD employee may request, or otherwise encourage, the offer of a gift from a 

foreign government

- Table favors, mementos, remembrances, or other tokens bestowed at official functions, and other gifts of minimal value received as souvenirs or marks of courtesy 

from a foreign government, e.g., plaques or paper certificates, may be accepted and 

retained by the recipient

- “Minimal value,” is defined as not exceeding $375 in retail value. “Minimal value” is 

based on the Consumer Price Index and is subject to change.

-- The General Services Administration (GSA) periodically adjusts the amount

-- The value of the gift is determined by retail value in the United States

-- Must aggregate the value if more than one gift is given at the same occasion

- DoD employees must refuse offers of gifts of more than minimal value if practical 

to do so

-- Advise donor that United States law prohibits persons in service of the United 

States or their dependents from accepting the gift

-- However, refusal requires Department of State approval (coordinated through 

SAF/AA)
CHAPTER FOURTEEN Ethics Issues 655

--- Exceptions to the refusal rule:

---- May accept a gift of greater value if refusal is likely to offend or embarrass 

the donor or adversely affect foreign relations. The gift becomes United 

States property and must be reported and turned in to the Air Force in 

accordance with procedures prescribed in AFI 51-901, Gifts from Foreign 

Governments.

---- A gift recipient may purchase a gift if he or she desires by paying full 

retail value

- For minimal value gifts accepted, the person receiving the gift should make a written record describing the circumstances of the gift, including the date and place of 

presentation, identity and position of the donor, description and value of gift, and 

means by which the value was determined

-- Request disposition instructions from SAF/AA and make a recommendation as 

to the disposition of the gift

References

5 U.S.C. § 7342

41 C.F.R. § 102-42.10

DoD 5500.07-R, Joint Ethics Regulation (30 August 1993), incorporating through Change 7, 17 

November 2011

DoDD 1005.13, Gifts and Decorations from Foreign Governments (19 February 2002), 

incorporating Change 1, 6 December 2002, certified current 21 November 2003

AFI 51-901, Gifts from Foreign Governments (16 February 2005), certified current 1 April 2011
656 The Military Commander and the Law

HONORARIA

Federal employees may accept the payment of money or anything of value for an appearance, speech or article, unrelated to their official duties, assuming there are no statutory 

or regulatory prohibitions.

- An honorarium is generally defined as a payment given to someone, such as a consultant or a speaker, for services for which fees are not legally required

- In the context of the Joint Ethics Regulation (JER), honoraria are considered compensation for a lecture, speech, or writing and involve the payment of money or 

anything of value

- At one time, federal employees were prohibited from accepting any honorarium on 

any topic, even if there was no connection between the subject of the appearance, 

or article, and the official duty of the individual

- However, pursuant to the Wolfe v. Barnhart case, that prohibition is no longer strictly 

enforced against government employees, military or civilian. Federal employees are 

no longer prohibited from accepting the payment of money or anything of value for 

an appearance, speech, or article, unrelated to their official duties.

- Federal employees may accept compensation for a lecture, speech or writing based on 

the employee’s field of individualized expertise (rather than official duties or agency 

operations) even if that field is generally within the agency’s area of responsibility

- JER 3-305 states that an employee who uses, or permits the use of, their military 

grade or who includes, or permits the inclusion, of his/her official title or position 

(only allowed as one of several biographical details) when being introduced, must 

include a disclaimer that the views being expressed are those of the speaker/writer 

and do not necessarily represent the views of DoD or the Air Force

-- If a speech, the disclaimer may be made verbally

-- If a writing, the disclaimer must be in writing as well

- Travel reimbursement for a speech related to official duties may be accepted under 

certain circumstances, but a fee or other direct compensation for speaking may not 

be accepted

- Consult your ethics counselor or servicing staff judge advocate before accepting an 

honorarium
CHAPTER FOURTEEN Ethics Issues 657

References

Wolfe v. Barnhart, 446 F.3d 1096 (10th Cir. 2006) 

5 C.F.R. § 2635.807

DoD 5500.07-R, Joint Ethics Regulation (30 August 1993), incorporating through Change 7, 

17 November 2011
658 The Military Commander and the Law

HONORARY MEMBERSHIPS

Air Force personnel are occasionally offered memberships in various non-defense contractor private organizations such as golf, tennis, gun, health, or social clubs. Such offers 

usually waive initiation fees and may waive all or a portion of membership dues, but the 

individual is responsible for all charges incurred and any dues not waived. Usually, these 

memberships terminate on reassignment or retirement and do not create an equity 

position in the club.

- The Joint Ethics Regulation (JER) prohibits military members or civilian employees 

from accepting such a membership if the membership is offered because of their 

official position

-- Previously, there was no prohibition to members accepting an unsolicited honorary membership from a non-defense contractor entity. This included country 

clubs.

-- Currently, an Air Force member may accept honorary membership only if the 

offer is unrelated to government employment and offered to all military members, regardless of grade or position. The same rule applies to civilian employees.

- Air Force personnel may become regular members of associations whose membership includes DoD contractor personnel, e.g., Air Force Association

- If acceptance is not otherwise prohibited, acceptance of an honorary membership 

does not violate 18 U.S.C. § 209 (unauthorized acceptance of compensation by a 

government official for services as a government official)

- Before accepting any honorary membership, military members should seek the 

advice and guidance from their ethics counselor or servicing staff judge advocate

References

18 U.S.C. § 209

DoD 5500.07-R, Joint Ethics Regulation (30 August 1993), incorporating through Change 7, 

17 November 2011
CHAPTER FOURTEEN Ethics Issues 659

USE OF GOVERNMENT OWNED VEHICLES (GOVS)

- AFI 24-301, Vehicle Operations, governs use of government owned vehicles (GOV)

- GOVs should only be used for official purposes (to support authorized DoD functions, 

activities or operations)

-- Decisions regarding questions of authorized GOV support will be resolved in favor 

of strict compliance with AFI 24-301 “to preclude any negative public perception”

- GOVs should not be provided to any employee based solely on grade, position, or 

personal convenience

- When vehicle transportation is essential to the performance of official business, the 

following methods shall be considered in the following order:

-- DoD scheduled bus service

-- Scheduled public transportation

-- DoD-owned or leased GOV

-- Voluntary use of privately owned vehicle (POV) on a reimbursable basis

Permanent Party and Temporary Party Use

- Use for Permanent Party Travel:

-- GOVs are not authorized for command picnics, holiday parties, or other unofficial 

events

-- GOVs are authorized for public ceremonies, parades, retirements and changes 

of command (for official participants)

- Use for Temporary Duty (TDY) Travel:

-- Between workplace or lodging and eating establishments, drug stores, barber 

shop, places of worship, laundry or dry cleaning facility, and similar places of 

sustenance

-- If off-base, the establishment must be reputable business within reasonable 

proximity to the installation (e.g., 5 miles should be used as a guide)
660 The Military Commander and the Law

-- On-base places of recreation including fitness centers, bowling centers and clubs

-- No off-base recreation facilities

- Family Members:

-- Transportation for family members is the sponsor’s personal responsibility

-- Dependents may accompany their sponsor in a GOV on a space-available basis 

when there is no additional cost to the Air Force, no official travelers are displaced, 

and no larger vehicle is required as result

-- Detours to pick up or drop off family members are not authorized

Command and Control Vehicles (CACV) and Domicile to Duty (DTD) Transportation

- CACV are for commanders with overall responsibility for operations or installation 

security needing 24/7 emergency communication support

-- MAJCOM/CC (may be delegated in writing to MAJCOM/CV) is the approval level

- CACV authority is not authority for DTD transportation

-- CACV should NOT be taken to the employee’s residence even for brief, incidental 

stops

- DTD transportation, per 31 U.S.C. 1344, is only authorized for:

-- Secretary of the Air Force (SecAF) and Chief of Staff of the U.S. Air Force (CSAF)

-- Field work (e.g., recruiters, medical officers performing outpatient service away 

from military treatment facility (MTF)

-- Intelligence, counterintelligence, protection services, or law enforcement duty

-- Emergent circumstances

--- Highly unusual circumstances that present a clear and present danger

--- Emergency situations

--- Other compelling operational considerations
CHAPTER FOURTEEN Ethics Issues 661

- SecAF must approve DTD transportation

-- The initial determination is not to exceed 15 days in duration

-- The initial determination period may be extended for up to 90 days, twice

-- Congress must be notified when DTD transportation is authorized

References

31 U.S.C. § 1344

DoDD 4500.09E, Transportation and Traffic Management (11 September 2007)

DoDD 4500.36-R, Acquisition, Management, and Use of Non-Tactical Vehicles (7 July 2015)

AFI 24-301, Vehicle Operations (5 May 2016)
662 The Military Commander and the Law

USING GOVERNMENT FUNDS FOR MEMENTOS AND GIFTS

Air Force policy is that appropriated funds cannot be used to purchase gifts for military 

members, employees, or private citizens unless specifically authorized by law. The only 

authority to use Air Force appropriated funds for gifts is AFI 65-603, Official Representation Funds, which specifies the circumstances and the individuals to whom gifts (or 

“mementos”) may be presented. Generally, nonappropriated funds cannot be used when 

appropriated funds are authorized, whether such funds are available or not. The use and 

limits on the use of nonappropriated funds is outlined in AFI 34-201, Use of Nonappropriated Funds (NAFs).

Impermissible Use of Funds

- You cannot use appropriated funds to purchase permanent change of station (PCS) 

or retirement mementos for either military or DoD civilian personnel

- You cannot use nonappropriated funds to purchase PCS mementos for either military or DoD civilian personnel

- In general, you cannot use nonappropriated funds to purchase trophies and awards 

that are used to recognize either mission accomplishment or individual achievements that contribute to military effectiveness. Nonappropriated funds may be used 

to purchase trophies and make nominal monetary awards for winners under the 

individual recognition program provided appropriated funds are not available or 

not authorized.

- You cannot use mission accomplishment recognition funding to honor PCS or retiring personnel. AFI 36-2803, The Air Force Awards and Decorations Program, and AFI 

36-1001, Managing the Civilian Performance Program, provide for appropriate recognition in these circumstances.

Permissible Use of Funds

-- You can use nonappropriated funds in support of a retirement ceremony to 

purchase light refreshments and mementos ($20 limit) for retiring military and 

DoD civilian personnel

-- You can use appropriated funds to purchase special trophies and plaques that 

are used to recognize mission accomplishment, such as personnel of the quarter 

awards
CHAPTER FOURTEEN Ethics Issues 663

-- You can use appropriated funds, e.g., Official Representation Funds (ORF), to 

purchase mementos/gifts for distinguished citizens of foreign countries, and 

prominent U.S. citizens who are not DoD employees under certain circumstances

References

DoDI 7250.13, Use of Appropriated Funds for Official Representation Purposes (30 June 2009)

AFI 34-201, Use of Nonappropriated Funds (NAFs) (17 June 2002)

AFI 36-1001, Managing the Civilian Performance Program (1 July 1999)

AFI 36-2803, The Air Force Military Awards and Decorations Program (18 December 2013), 

incorporating Change 1 (22 June 2015)

AFI 65-603, Official Representation Funds (24 August 2011)
664 The Military Commander and the Law

USE OF GOVERNMENT COMMUNICATIONS SYSTEMS

With the explosion of the information age, government employees now have access 

to computers, copier machines, fax machines, cellular phones, Internet, and electronic 

mail. Under the Joint Ethics Regulation (JER) the use of government resources and communications systems are for official and authorized use only.

Policy

- Monitoring: All usage of government communications is subject to being monitored, 

and no classified information may be communicated using unclassified means

- Downloads: To protect against downloading viruses from the Internet and introducing potential risk to the Air Force networks, check all downloaded files for viruses and 

do not download any files directly to a network or shared drive

- Hardware and Software: Government-provided hardware and software are for official 

and authorized purposes only

-- Appropriate officials may authorize personal uses consistent with the requirements of the JER after consulting with their ethics counselor. Such policies should 

be explicit.

- Violations: Failure to comply with the prohibitions and mandatory provisions by 

military personnel is a violation of Article 92, UCMJ. Violations by civilian employees 

may result in administrative disciplinary actions. See AFMAN 33-152, User Responsibilities and Guidance for Information Systems.

Authorized Limited Personal Use

- Examples of authorized limited personal use include, but are not limited to:

-- Notifying family members of official transportation or schedule changes

-- Exchanging important and time-sensitive information with a spouse or family 

member, such as scheduling doctor, automobile, or home repair appointments, 

brief Internet searches, or sending directions to visiting relatives

-- Educating or enhancing the professional skills of employees

-- Sending messages on behalf of a chartered organization, such as unit booster 

club, base top 3, or company grade officers association
CHAPTER FOURTEEN Ethics Issues 665

-- Limited use by deployed members for morale, health, and welfare purposes

-- Searching for a job if related to separations or retirements

Internet–based Capabilities 

- Internet-based capabilities include collaborative tools such as short message service 

(SMS), social media, blogs and discussion forms 

-- These tools may be used in an official capacity to distribute publically releasable 

DoD information

-- They may not link to or contain any non-public DoD data

-- Posts using these tools are official government records and are subject to the 

Federal Records Act

- All official use of Internet–based capabilities must be approved by SAF/PA and meet 

Air Force branding requirements. They must also contain:

-- A privacy act statement

-- Comment policy; with moderated comments

-- Link to an Air Force public facing web site

-- Link to an official Air Force e-mail account

Security Measures—Digital Signatures and Encryption

- Digitally signing and encrypting e-mails are two measures to secure the network

- Digital Signatures:

-- Are not required when the message contains only unofficial information and 

does not contain an embedded hyperlink and/or an attachment

- Encryption: Should be used to protect the following types of information:

--- For official use only (FOUO)

--- Privacy Act information
666 The Military Commander and the Law

--- Personally identifiable information (PII)

--- Personal health information (PHI), DoD payroll, finance, logistics, personnel 

management, proprietary, and foreign government information

--- Operations security (OPSEC) information

--- Other information which required encryption by area of responsibility

-- Encryption will not protect classified information

- The number of e-mail recipients should be kept to a minimum

Prohibited Uses

- Uses that would adversely reflect on the DoD or the Air Force such as chain letters, unofficial soliciting, or selling except on authorized Internet-based capabilities 

established for such use

- Unauthorized storing, processing, displaying, sending, or otherwise transmitting 

prohibited content

-- Prohibited content includes: pornography, sexually explicit or sexually oriented 

material, nudity, hate speech or ridicule of others on the basis of a protected class 

(e.g., race, religion, color, age, gender, disability, national origin), gambling, illegal 

weapons, militancy/extremist activities, terrorist activities, use for personal gain, 

and any other content or activities that are illegal or inappropriate

- Uses that would be deemed partisan political activity under the Hatch Act

- Storing or processing classified information on any system not approved for classified 

processing

- Using copyrighted material in violation of the rights of the owner of the copyrights. 

Consult with the servicing staff judge advocate (SJA) for fair use advice.

- Unauthorized use of the account or identity of another person/organization

- Viewing, changing, damaging, deleting, or blocking access to another user’s files or 

communications without appropriate authorization or permission
CHAPTER FOURTEEN Ethics Issues 667

- Attempting to circumvent or defeat security or modifying security systems without 

prior authorization or permission (such as for legitimate system testing or security 

research)

- Obtaining, installing, copying, storing, or using software in violation of the applicable 

license agreement

- Permitting an unauthorized individual access to a government-owned or government- operated system

- Modifying or altering the network operating system or system configuration without 

first obtaining written permission from the administrator of that system

- Copying and posting of FOUO, controlled unclassified information (CUI), critical 

information (CI), and/or PII on any information system not authorized for that type 

of information including but not limited to publically accessible sites

- Downloading and installing freeware/shareware or any other software product that 

has not been approved by an Air Force authorizing official

References

The Hatch Act, 5 U.S.C. §§ 7321-7326 

Federal Records Act, 42 U.S.C. § 2203, et seq. 

UCMJ Art. 92 

DoD 5500.07-R, Joint Ethics Regulation (30 August 1993), incorporating through Change 7, 

17 November 2011

AFMAN 33-152, User Responsibilities and Guidance for Information Systems (1 June 2012) 

AFI 33-115, Communications and Information (16 September 2014), including 

AFI33-115_AFGM2015-01, 29 October 2015

AFI 33-200, Cyber Security Program Management (31 August 2015), certified current 

16 February 2016

AFI 33-332, Air Force Privacy and Civil Liberties Program (12 January 2015)

AFI 33-401, Communication and Information (17 May 2011), incorporating Change 1, 

22 December 2015

OMB Memo 10-23, Guidance for Agency Use of Third-Party Websites and Applications

(25 June 2010)
668 The Military Commander and the Law

OFFICIAL REPRESENTATION FUNDS (ORF)

- ORF is one type of emergency and extraordinary expense fund allowed by 

10 U.S.C. § 127

- The purpose of ORF is to extend official courtesies of the United States to foreign 

and domestic dignitaries

ORF Ratios

- Invite the minimum number of guest to extend proper courtesies

- In parties of less than 30 persons, at least 20% of the guests are required to be 

non-DoD

- In parties of more than 30 persons, at least 50% of the guests are required to be 

non-DoD

Authorized ORF Recipients

- Members of Congress and Cabinet members

- Prominent U.S. citizens

-- Retired O-10s are automatically considered prominent U.S. citizens

- Foreign distinguished citizens, military personnel, and government officials

- The Secretary of the Air Force, (SecAF) Undersecretary of the Air Force (USecAF), Chief 

of Staff of the Air Force (CSAF), Vice Chief of Staff of the Air Force (VCSAF), certain 

other Office of the Secretary of Defense (OSD) members

Authorized Use of ORF

- AFI 65-603, Official Representation Funds, governs the use of ORF

-- May be used for meals, receptions and refreshments

-- Reasonable gratuities for services rendered by non-government personnel
CHAPTER FOURTEEN Ethics Issues 669

-- Recreation events such as sporting activities, sightseeing tours, and concerts for 

authorized personnel

-- Floral and candle centerpieces for receptions and meals

-- Mementos, modest welcome baskets, and the cost of the gift wrapping, paper 

or bows

-- Alcohol at evening events

Unauthorized Use of ORF

- Unless specifically approved by SAF/AA the following uses are not allowed:

-- Personal items such as toiletry articles, hair and beauty care, souvenirs, and personal clothing items (unless the article of clothing bears the command or unit 

logo and is given as a memento)

-- Personal phone calls or transportation when official duties are not involved

-- Expenses for support staff (e.g., aides, executive officers, official drivers, and protocol personnel). These individuals are not considered members of the official party.

-- Gifts, flowers, or wreaths for presentation by authorized guests

-- Seasonal greeting and calling cards

-- Cost of music/entertainment for social hours, receptions, and dinners

-- DoD members’ (and spouses’) cost for recreational activities

-- Membership fees or dues

References

10 U.S.C. § 127

DoDI 7250.13, Use of Appropriated Funds for Official Representation Purposes (30 June 2009)

AFI 65-603, Official Representation Funds (24 August 2011)
670 The Military Commander and the Law

OFF-DUTY EMPLOYMENT

Air Force members may participate in off-duty employment, subject to the limitations and 

prohibitions stated in the Joint Ethics Regulation (JER). Medical providers should consult 

applicable guidance from AF/SG prior to engaging in off-duty employment.

- Personnel should inform their supervisor prior to engaging in outside employment. 

Although the Air Force does not require an individual to complete AF IMT 3902, 

Application and Approval for Off-Duty Employment, individuals should be aware there 

is frequently a local or command policy to do so.

- Financial disclosure filers shall obtain prior approval before working for a prohibited 

source. For more information on who is required to file financial disclosures, see your 

servicing staff judge advocate.

- Personnel may not engage in outside employment, with or without compensation, 

that:

-- Interferes with or is not compatible with performing their government duties

-- May reasonably be expected to bring discredit upon the government or the 

Department of Defense

-- May tend to create a conflict of interest

-- Will detract from readiness or pose a security risk

- Personnel are encouraged to engage in teaching, writing, or lecturing

-- Such activities must not depend upon information gained as a result of government service, unless available to the public or with approval from the Secretary 

of the Air Force (SecAF)

-- Civilian presidential appointees may not accept anything of monetary value for 

imparting information substantially relating to responsibilities, programs, or 

operations of the Air Force, or for official ideas which have not been made public

-- Generally, federal employees may not receive payment for articles or speeches 

related to their official duties
CHAPTER FOURTEEN Ethics Issues 671

References

Wolfe v. Barnhart, 446 F.3d 1096 (10th Cir. 2006) 

5 C.F.R. § 2635, subpart H

DoD 5500.07-R, Joint Ethics Regulation (30 August 1993), incorporating through Change 7, 

17 November 2011

AFI 36-703, Civilian Conduct and Responsibility (18 February 2014)

AF Form 3902, Application and Approval for Off-Duty Employment (March 1995)
672 The Military Commander and the Law

KEY SPOUSE PROGRAM

DoD components can accept volunteer services in accordance with (in accordance with) 

10 U.S.C. § 1588, as implemented by DoDI 1100.21, Voluntary Services in the Department 

of Defense.

Volunteer Services 

- Commanders can accept volunteer services for programs including:

-- Providing services for military members and their families in accordance with AFI 

36-3009, Airman and Family Readiness Centers

-- Supporting morale, welfare, and recreation (MWR) programs in accordance with 

AFI 34-101, Air Force Morale, Welfare and Recreation Programs and Use Eligibility

-- Medical and dental services

-- Child Development Center (CDC) and youth programs

-- Library and education programs

-- Religious programs

-- Housing referral programs

-- Funeral honors details

-- Legal assistance to service members and retirees and their families

-- Proctor for Armed Services Vocational Aptitude Battery tests

-- Foreign language interpretation

Key Spouses 

- All key spouses should be appointed by the unit commander

- Once appointed, they should:

-- Complete key spouse training
CHAPTER FOURTEEN Ethics Issues 673

-- Sign a DD Form 2793, Volunteer Agreement

-- Complete necessary information security training, if they will be given access to 

Air Force information technology systems

- Key Spouses May Not:

-- Serve in a policy making position

-- Supervise paid employees or military personnel

-- Perform inherently governmental functions

-- Obligate government funds (either appropriated funds (APF) or nonappropriated 

funds (NAF))

-- Be accountable for the management, quality, financial solvency, and health/

safety of an installation program or activity

- Key spouses are supervised the same way as compensated employees providing 

like services

- Key spouses receive Federal Tort Claims Act (FTCA) protections for injuries or damage 

they may cause when they perform official duties as volunteers

- Key spouses receive Federal Employee Compensation Act (FECA) protections for 

injuries they may incur when they perform official duties as volunteers

- Key spouse members can use government facilities, desk space, computers, e-mail, 

telephones, smart phones, tablets, supplies, equipment, access to Privacy Act protected information, and use of government vehicles as needed to perform their 

assigned duties

-- They should complete the same training required of any compensated employee 

or military member who will have access to these resources

-- For purposes of DoDI 4500.36R, Management, Acquisition, and Use of Motor 

Vehicles, key spouses are considered federal employees

- AFI 36-3009 places responsibility with Airman and family readiness centers to provide 

training to key spouse members on a quarterly basis or as requested
674 The Military Commander and the Law

- If key spouses engage in fundraising (e.g., as a member of a spouses’ club), either 

on or off-base, they must adhere to AFI 36-3101, Fundraising in the Air Force, and AFI 

34-223, Private Organization Program, and ensure it is clear that they are not acting 

in their official capacity as the commander’s key spouse

- An overview of the program can be found at https://www.usafservices.com. Look 

under Key Spouse Program: Commander and First Sergeant Reference Guide.

References

Federal Employee Compensation Act, 5 U.S.C. § 8107 

10 U.S.C. § 1588

Federal Tort Claims Act, 28 U.S.C. § 1346

DoDI 1100.21, Voluntary Services in the Department of Defense (11 March 2002), incorporating 

Change 1, 26 December 2002

DoDI 4500.36-R, Management, Acquisition, and Use of Motor Vehicles (7 July 2015)

AFI 34-101, Air Force Morale, Welfare and Recreation Programs and Use Eligibility (28 March 

2013), including AFI34-101_AFGM2015-01, 28 October 2015

AFI 34-223, Private Organization Program (8 March 2007), incorporating Change 1, 30 November 

2010, certified current 4 April 2011 

AFI 36-3009, Airman and Family Readiness Centers (7 May 2013) including 

AFI36-3009_AFGM2016-01, 18 February 16

AFI 36-3101, Fundraising in the Air Force (12 July 2002)

DD Form 2793, Volunteer Agreement (May 2009)
CHAPTER FOURTEEN Ethics Issues 675

UTILIZATION OF ENLISTED AIDES (EAs)

Authorized EA Duties

- An EA is assigned to assist the general officers (GOs). They are not assigned to assist 

the GO’s spouse, family, or staff.

- Examples of Permissible EA Duties Include:

-- Cleaning of common areas in GO quarters (GOQ) and general lawn care

-- Care of military uniforms and civilian attire worn for qualifying representational 

events (QREs)

-- Receiving guest at QREs

-- Planning, preparation and conduct of QREs, receptions, and parties

-- Preparation of daily meals for the GO (and those immediate family members 

that eat with the GO)

-- Packing of uniforms and professional items and books in permanent change of 

station (PCS) move

-- Assisting the GO with errands that have a substantive connection to the GO’s 

official responsibilities

- EAs are assigned to support assigned GOs and relieve them of routine duties so the 

GO can focus on military duties

Unauthorized EA Duties

- Any form of care for family, personal guest, or pets

- Maintenance of any privately owned vehicle (POV) or private recreational equipment

- Personal services or errands for the sole benefit of the GO’s family or unofficial guests

- Landscaping in areas not used for QREs

- Skilled maintenance of GOQ or cleaning of private family areas
676 The Military Commander and the Law

Sharing of EAs

- GOs can loan EAs to another GO who is authorized use of EAs in order to support a QRE

- GOs can assign another GO or GO’s spouse to host a QRE that has direct connection 

to the GO’s official duties

-- This includes events when the spouse is hosting and events attended by spouses 

of U.S. dignitaries, foreign dignitaries or foreign military officers when the GO is 

separately meeting with those individuals

Permissible and Impermissible EA Assignments 

- DoDI 1351.09, Utilization of Enlisted Aides (EAs) on Personal Staffs of General and Flag 

Officers (G/FOs), enclosure 4, contains examples of permissible and impermissible EA 

assignments in support of QREs

- Permissible QREs Include:

-- Events to honor local government, congressional personnel, and foreign 

dignitaries

-- Customary unit morale events such as hail and farewell gatherings and holiday 

parties

-- Events to welcome peers and subordinates

-- Official events in support of family readiness programs

- Impermissible non-QREs Include:

-- Purely social events for family, friends and peers

-- Spouse-hosted social events for unit spouses

References

DoDI 1315.09, Utilization of Enlisted Aides (EAs) on Personal Staffs of General and Flag Officers 

(G/FOs) (6 March 2015)

AFI 36-2123, Management of Enlisted Aides (2 October 2008)
677

Overview of the Civilian Personnel System .................................................................................678

Overview of Federal Labor Management Relations.................................................................683

Collective Bargaining...........................................................................................................................690

Air Force Civilian Drug Testing Program .......................................................................................694

Civilian Employee Workplace Searches.........................................................................................701

Unacceptable Performance by Civilian Employees..................................................................703

Civilian Employee Discipline .............................................................................................................710

Civilian Employee Interrogation......................................................................................................716

Equal Employment Opportunity (EEO) Complaint Process...................................................719

Whistleblower Protection Act...........................................................................................................726

Family and Medical Leave Act (FMLA) ...........................................................................................729

Unemployment Compensation.......................................................................................................732

Fair Labor Standards Act.....................................................................................................................735

CHAPTER FIFTEEN: CIVILIAN PERSONNEL 

15

AND FEDERAL LABOR LAW
678 The Military Commander and the Law

OVERVIEW OF THE CIVILIAN PERSONNEL SYSTEM

The area of labor and personnel relations is covered by an assortment of statutes, executive orders, and regulations. It is administered by a myriad of administrative bodies located 

in a variety of federal departments and independent agencies and is a complicated area 

of the law.

The Workforce Structure

- Six categories that offer varying degrees of protection from adverse personnel 

actions:

-- Competitive Service

--- All positions not specifically exempted

--- Most employees enter federal service after passing a competitive exam

-- Excepted Service

--- Usually excepted from competition by OPM regulations

-- Senior Executive Service (SES)

--- Reserved for federal civilian employees above GS-15

--- Considered general officer equivalents

-- Probationary Employees

-- Hybrid Military/Civilian

--- National Guard technicians

--- Air Reserve technicians

-- Nonappropriated Fund (NAF) Employees

--- Morale, welfare and recreation employees
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 679

Pay Systems

- Appropriated Fund Employees

-- General Schedule (GS)

--- Divided into 15 grades, GS-1 through GS-15

--- Statutory: same base pay scale nationwide, plus varying levels of locality pay

--- Automatic pay increases for “acceptable” performance

-- Executive Schedule

--- Statutory—same basic pay nationwide

--- Merit pay increases

-- Federal Wage Survey

--- Wage Grade (WG)/Wage Leader/Wage Supervisor

--- Pay reflects private sector pay rates in locality for same type of work

--- Manner of computing pay set by statute

- Nonappropriated Fund (NAF) Employees

-- Pay rates determined by management and may be negotiable with unions

Administrative and Adjudicative Bodies

- Merit Systems Protection Board (MSPB)

-- Adjudicate cases brought by the Office of Special Counsel, such as whistleblower 

claims, allegations of mismanagement, and requests by SES members for performance deficiencies and for informal hearings

-- Hears appeals by certain civilian employees of agency actions in performance 

or misconduct cases where the employee was disciplined by reduction in grade, 

removal, suspension for more than 14 days or furloughed for 30 days or less for 

misconduct
680 The Military Commander and the Law

-- Possesses authority to mitigate or completely reverse agency adverse actions, 

but cannot mitigate performance based actions taken under 5 U.S.C., Chapter 43

-- Hears appeals concerning reduction-in-force (RIF)

- Equal Employment Opportunity Commission (EEOC)

-- Adjudicates claims of unlawful discrimination based on race, religion, national 

origin, sex (including sexual orientation), color, disability, or age, and claims of 

unlawful reprisal

-- If illegal discrimination is found, it may order back pay, retroactive personnel 

actions, correction of records, reinstatement, promotion, payment of attorney 

fees, and compensatory damages

- Federal Labor Relations Authority (FLRA)

-- Administers the interaction between federal agencies, labor organizations and 

employees

-- Decides unfair labor practice (ULP) cases filed by either the agency or the union

-- Decides appeals of certain arbitration awards and negotiability appeals

-- Has authority to direct the Air Force to comply with its orders

- Federal Service Impasses Panel (FSIP): Resolves negotiation impasses between agencies and labor organizations

- Federal Mediation and Conciliation Service (FMCS): Aids federal agencies and labor 

organizations in resolving negotiation impasses; provides parties with lists of arbitrators; provides mediators for alternative dispute resolution

- Office of Personnel Management (OPM): Addresses personnel management issues 

such as civil service retirement programs, insurance, examinations, and classification 

appeals

- Office of Special Counsel: Investigates and prosecutes allegations of violations of 

merit principles; prohibited personnel practices; fraud, waste and abuse; and violations of the Hatch Act
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 681

Litigation Responsibilities

- Administrative litigation (FLRA, MSPB, EEO, unemployment compensation, etc.)

-- Installation staff judge advocate (SJA)

--- Provides legal advice to the commander, managers, Civilian Personnel Section, and EEO officials concerning all labor and employment law issues

--- Represents management in arbitrations, agency and negotiated grievance 

proceedings, unemployment compensation hearings, and workers’ compensation hearings

--- Requests assistance from the AFLOA Labor Law Field Support Center (LLFSC)

-- LLFSC

--- Established in July 2007 to provide labor and employment law advice and 

litigation support to installation legal offices

--- Main office is located at Joint Base Andrews, Maryland with seven field offices 

in the United States

--- Air logistics centers and certain other locations are excluded from LLFSC 

coverage

---- These include Tinker Air Force Base, Robins Air Force Base, Hill Air Force 

Base and Wright-Patterson Air Force Base, as well as Air Reserve Bases 

with an active duty judge advocate assigned

---- Regardless, of support received from the LLFSC, the installation SJA 

remains the legal counselor to the commander

--- Provides representation before the MSPB, the EEOC, the FLRA, and Federal 

Court, unless specifically delegated to installation

--- Handles ALL class complaints of discrimination before EEOC

--- Provides legal advice, assistance, and training to judge advocates, civilian 

attorneys and to personnel experts
682 The Military Commander and the Law

- Federal court litigation (any case filed within the U.S. federal court system)

-- The Department of Justice “has the statutory responsibility to represent the Air 

Force and Air Force officials who are being sued in their official capacities.... This 

responsibility extends to litigation in foreign courts.” AFI 51-301, AFI 51-301, Civil 

Litigation (20 June 2002), para. 1.2.

-- AFLOA or HQ USAF/JAC, on behalf of The Judge Advocate General (TJAG), ordinarily determines who may appear as an attorney or counsel for the Air Force in a civil 

judicial or administrative action, foreign or domestic

-- Chief, General Litigation Division, Office of Judge Advocate General, is designated 

to accept service of process for the Department of the Air Force

References

5 U.S.C. §§ 1201-1204 

5 U.S.C. §§ 5101-5115

5 U.S.C. § 9902

Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7101-7135

5 C.F.R. Part 1201

29 C.F.R. Part 1614

AFI 36-701, Labor Management Relations (27 July 1994)

AFI 36-704, Discipline and Adverse Actions (22 July 1994)

AFI 36-706, Administrative Grievance System (22 May 2014)

AFI 36-2706, Equal Opportunity Program Military and Civilian (5 October 2010), incorporating 

Change 1, 5 October 2011

AFI 51-301, Civil Litigation (20 June 2002)
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 683

OVERVIEW OF FEDERAL LABOR 

MANAGEMENT RELATIONS

Used technically, labor law concerns relationships among management, employees, and 

unions. Generally, it covers the rules that govern how employees and managers should 

work together to accomplish the mission. The statutory and regulatory basis for these 

rules and their interpretation are described below.

- The Civil Service Reform Act of 1978 (CSRA) is the foundational authority that governs 

the rights and privileges of federal employees. Others include:

-- Title VII: Federal Service Labor-Management Relations Statute (FSLMRS)

--- FSLMRS covers certain civilian employees of the Air Force. Among others, the 

statute excepts the following categories:

---- Active duty members

---- Supervisors and management officials, and

---- Aliens or non-U.S. citizens employed outside the United States

-- Air Force Guidance: AFI 36-701, Labor Management Relations

Employee Rights

- FSLMRS recognizes certain employee rights

-- The right to form, join or assist any union, or to refrain from any such activity, 

freely and without fear of penalty or reprisal (no right to strike)

-- Serve as representative of union

-- Present union views to management

-- Engage in collective bargaining about conditions of employment (COE) through 

chosen representatives
684 The Military Commander and the Law

Management Rights

- FSLMRS similarly recognizes certain rights that are reserved to management. When 

the agency exercises a reserved management right, the agency is not required to 

bargain over the substance of that decision. However, the agency is required to bargain over any legitimate proposals that the union submits concerning the impact or 

implementation of the agency’s decision to exercise a reserved management right. 

Some of the reserved management rights include the right to:

-- Determine agency mission

-- Determine agency budget

-- Determine agency organization

-- Determine number of employees

-- Determine internal security practices

-- Hire, assign, direct and retain employees

-- Suspend, remove, reduce in grade or pay, or take disciplinary action

-- Assign work

-- Make determinations on outsourcing

-- Determine which personnel will conduct agency operations, and 

-- Fill positions and promote employees

Union Representation Rights and Duties

- A union is entitled to negotiate a collective bargaining agreement (CBA) covering 

employees in unit

-- Installation represented by base negotiating team

-- Both sides must negotiate in good faith (duty to approach negotiations with 

sincere resolve to reach agreement)

-- A union may designate its representative during the negotiations
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 685

- A union is entitled to be present during formal discussions between one or more 

representatives of the Air Force and one or more employees in the bargaining unit (or 

their representatives) concerning any grievance or any personnel policy or practices 

or other general conditions of employment

-- There are a number of factors that can be considered to determine if the discussion is formal. Some of the factors include: 

--- Who held the meeting

--- Where the meeting was held

--- How long the meeting lasted

--- Was there a formal agenda

--- Whether attendance was mandatory

--- How the meeting was conducted 

-- Please note, some meetings may become formal even though they were not 

intended to be when they were originally planned

-- Discussion is synonymous with meetingand does not require debate or argument

-- Check with the civilian personnel sections (CPS) and the SJA before conducting 

such discussions to see if the union should be notified

- A union is entitled to be present during an investigatory interview of a bargaining 

unit employee if the employee reasonably believes that the examination may result in 

disciplinary action against the employee, AND the employee requests representation

-- This is known as receiving Weingarten Rights after a Supreme Court case, Nat’l 

Labor Relations Board v. Weingarten, 420 U.S. 251 (1975) 

-- Generally, management does not have to advise the employee of these rights 

at the beginning of each interview unless the collective bargaining agreement 

between management and the union requires it

- A union is entitled to information “normally maintained by the agency in the regular 

course of business” that is “reasonably available and necessary” for full and proper 

negotiation and not prohibited from disclosure by law
686 The Military Commander and the Law

-- Need not request pursuant to Freedom of Information Act (FOIA). The standard 

for releasing information is different from the FOIA standard.

--- The union must demonstrate a particularized need for the information 

sought (use to which it will be put, how that use relates to representation, 

why needed)

--- Undue delay, failing to explain a denial, or failing to advise the union that the 

information does not exist, may be grounds for an unfair labor practice (ULP)

-- The union cannot be charged for the information

-- Need not release information if it contains guidance to management officials 

relating to bargaining

-- Must provide the information to the union even if readily available from another 

source

-- May assert that countervailing interests outweigh union’s need

- A union’s duty of fair representation

-- When the union decides to represent unit employees in any manner that affects 

the COE, it must represent them fairly. No discrimination allowed.

-- Must represent all employees in bargaining unit whether or not they are union 

members

Union Right to Official Time

- Union representatives are entitled to wages when on official time to negotiate collective bargaining issues

-- The union has a statutory right to official time for as many negotiators as are on 

the management negotiating team, although the union has the right to negotiate official time for additional negotiators as well

-- Official time for all negotiations

--- Ground rules negotiations

--- CBA negotiations
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 687

--- Mid-term negotiations

--- Impact and implementation bargaining

- No official time for internal union business (collecting dues, soliciting new members, 

etc.)

- Official time must be granted for any employee participating in any phase of a Federal 

Labor Relations Authority (FLRA) proceeding if the FLRA determines the employee’s 

presence is necessary

- Official time for other purposes is bargainable and the CBA should outline who is 

entitled to the official time and how much time they are entitled to receive

Union Right to Dues Allotments

- The Air Force must process dues allotments in a timely fashion or it will be considered 

an ULP

- If the Air Force fails to do so, it must reimburse the union and the Air Force cannot 

recoup money from the employee

Agency Unfair Labor Practices

- Most common unfair labor practices charges against the agency include:

-- To interfere with, restrain, or coerce employees in exercising their FSLMRS rights. 

Lack of illegal motivation or anti-union animus is not a defense.

-- To encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions 

of employment

-- To sponsor, control, or assist a union

-- To discipline or otherwise discriminate against an employee for filing a ULP or 

testifying in a ULP proceeding

-- To refuse to bargain in good faith

-- To fail or refuse to cooperate in impasse procedures or decisions
688 The Military Commander and the Law

-- To enforce a rule or regulation which conflicts with a preexisting CBA

-- To otherwise fail or refuse to comply with any provision of FSLMRS

Union Unfair Labor Practices

- Major commands have the responsibility to authorize ULP charges against a union, 

however, AFI 36-701 permits this authority to be delegated to installations

-- Not frequently used by Air Force

-- ULPs by union are similar to agency ULPs, and include

--- To coerce, discipline, or fine a union member as punishment to hinder or 

impede employee’s work performance

--- To discriminate regarding union membership on basis of race, creed, color, 

sex, age, handicap, marital status, national origin, or political affiliation

--- To call, participate in, or condone a strike, work stoppage, or slowdown; 

nondisruptive informational picketing is permitted

--- To refuse to bargain in good faith

--- To fail or refuse to cooperate in impasse procedures or decisions

--- To otherwise fail or refuse to comply with any provision of FSLMRS

Unfair Labor Practice Procedures

- Charge filed with FLRA regional office

- Investigation by FLRA regional office attorney/agent

-- Investigation conducted in person or by interviewing witnesses over the phone

-- Air Force must make bargaining unit employees available for interview

-- Investigators are not always neutral and detached

--- Often they will amend charges to conform to their investigation
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 689

--- NEVER permit management officials to be interviewed without notifying 

the legal office. With the exception of some bases within AFMC, the Air 

Force Legal Operations Agency/General Litigation Division (Labor Law Field 

Support Center (LLFSC)) is designated as the agency representative for ULP 

charges. For those cases in which the LLFSC is designated as the agency 

representative, the LLFSC must be notified before management officials are 

interviewed by the FLRA.

-- Legal counsel can present a written or oral position statement and explore settlement options

- Regional director of the FLRA determines whether to issue a complaint

- Hearing before administrative law judge (ALJ )

-- FLRA General Counsel represents charging party (generally the union) and has 

burden of proof

-- Except at air logistics centers, the LLFSC represents the base

-- ALJ issues written decision (may take 6 months or longer)

- Exceptions to ALJ decision

-- Appeal is taken to FLRA in Washington D.C.

-- FLRA decision may be appealed to either U.S. Court of Appeals for the D.C. Circuit 

or the circuit having geographic jurisdiction over the installation

References

Federal Service Labor Management Relations Statute, 5 U.S.C. §§ 7101-7135

NLRB v. Weingarten, 420 U.S. 251 (1975) 

AFI 36-701, Labor Management Relations (27 July 1994)
690 The Military Commander and the Law

COLLECTIVE BARGAINING

The Federal Service Labor-Management Relations statute (5 U.S.C. §§ 7101-7135) is contained in the Civil Service Reform Act of 1978. This Act grants certain federal employees 

the right to join or form labor unions and to engage in collective bargaining through their 

chosen representatives. Air Force labor-management relations policies and procedures 

are set forth in AFI 36-701, Labor Management Relations.

- The Air Force must bargain with bargaining unit employees through their duly 

elected representative (union) over all conditions of employment (COE), which are 

defined as personnel policies, practices, and matters affecting working conditions

- The Act does not require bargaining with appropriated fund employees over the 

following subjects:

-- Matters specifically regarding certain political activities

-- Classification of positions

-- Matters provided for by federal statute, including but not limited to:

--- Pay

--- Vacations

--- Health benefits

--- Holidays

--- Retirement plans

-- Proposals that conflict with government-wide rules or regulations

-- Proposals that conflict with “reserved management rights” under the Act, including among other things, the mission of the agency, the budget, internal security 

practices, the number of agency employees, the assignment of work, the ability 

to hire, fire and discipline employees
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 691

- Management is not required to bargain over matters already covered in the contract 

(or CBA)

-- To the extent a matter arises concerning a COE that is not covered in the contract, 

the union can engage management in mid-term bargaining

-- Union may not engage management in mid-term bargaining if the collective 

bargaining agreement contains a “zipper” clause that bars such during the life 

of the agreement

- Air Force must bargain in good faith, including having negotiators who have authority to bind the activity

- Must bargain before changing COE even if the change is made during life of CBA

- Parties may establish a COE by consistently, over an extended period of time, engaging in a certain practice, and a labor contract clause can be modified or even overturned by such a COE created in this manner (often called a “past practice”)

-- This refers to matters that are already considered conditions of employment and 

the past practice has merely changed the way the condition of employment was 

originally handled

-- It is not possible for a past practice to create a condition of employment where 

the subject matter underlying the practice does not pertain to a COE

Bargaining Situations

- Bargaining can occur in one of three contexts:

-- Bargaining leading to a “labor contract” of fixed duration and covering a variety 

of topics or bargaining in the absence of a CBA when one party wants to change 

a COE

-- Impact and Implementation (I & I) Bargaining:

--- I & I bargaining concerns the procedures to be used in exercising management’s rights (i.e., right to determine agency mission) and the appropriate 

arrangements for employees affected by exercise of management’s rights
692 The Military Commander and the Law

---- But the change must have more than a minimal foreseeable impact 

(often called a de minimus impact) on the group of employees that would 

be affected by the change

---- Several things may require I & I bargaining, such as a change in procedures for turning in leave slips, a change in employee duty hours, or 

overtime pay issues

--- Procedure: Give the union notice in writing of the change in COE and afford 

it a reasonable period of time to submit written I & I proposals

-- Mid-term Bargaining: Union demand to bargain over a condition of employment 

that has not already been addressed in the collective bargaining agreement

Permissive Bargaining

- Under the Civil Service Reform Act, management is allowed to determine whether 

to bargain on certain subjects. If management refuses to bargain, this decision is 

unilaterally binding on the union. 

- “Permissive” subjects include:

-- Management’s right to determine the numbers, types, and grades of employees 

assigned to any subdivision, project, or tour of duty

-- Management’s right to determine the technology, methods, and means of performing work

Determining Whether an Issue is Bargainable 

- Determining whether an issue is bargainable is often a confusing and highly complex 

matter in the federal sector labor law arena

-- If commanders are presented with a demand that a dispute or issue be dealt 

with through formal bargaining, the safe response is merely to advise the union 

representative that he/she will ask the civilian personnel section (CPS) and staff 

judge advocate to review the request. This area is sufficiently sensitive that wing 

staff organizations will coordinate a decision to declare a proposal “nonnegotiable” with MAJCOM DPC and AFLOA/JACL CLLO should also be notified of any 

decision to declare a proposal nonnegotiable.
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 693

-- Depending on the substance of the proposal, it could be determined to be outside the duty to bargain or nonnegotiable for several reasons. For example, it 

could be inconsistent with law (outside the duty) or affecting a reserved management right (nonnegotiable).

- When management declares a proposal “nonnegotiable,” the union may appeal to 

the Federal Labor Relations Authority (FLRA)

-- 15-day time limit to appeal

-- Agency has 30 days to submit its position or withdraw its decision not to negotiate

-- Decision by the FLRA is often made based on the written submission of the 

parties without a hearing

- Regardless of whether negotiations are deemed “substantive” or “I & I,” union negotiators who are also federal employees have a right to be in an “official time” status 

during the negotiations (receive pay and benefits even though not “working”) in 

equal number with the management negotiators

-- Unions may negotiate for additional official time for representational activities 

(grievances, etc.)

-- Unions may not use official time for internal union business such as collecting 

dues, soliciting new members, etc.

References

5 U.S.C. §§ 7101-7135

AFI 36-701, Labor Management Relations (27 July 1994)
694 The Military Commander and the Law

AIR FORCE CIVILIAN DRUG TESTING PROGRAM

Executive Order 12564, Drug-Free Federal Workplace (1986), formally announced the 

President’s policy that the federal workplace would be free from drugs.

- President’s Statement of Policy: Federal employees required to refrain from the use 

of illegal drugs; use of illegal drugs by federal employees, on- or off-duty, is contrary 

to the efficiency of the service; persons who use illegal drugs are not suitable for 

federal employment; each agency will develop a plan to achieve objectives of the 

Executive Order

- Air Force Policy: The Air Force, as a result of its national defense responsibilities, and 

the sensitive nature of its work, has a compelling obligation to eliminate illicit drug 

use from its workforce. Civilian employees of the Air Force must refrain from illicit 

drug use whether on or off-duty. Performing duties under the influence of illicit drugs 

adversely affects personal safety, risks damage to government property, significantly 

impairs day-to-day operations, and exposes sensitive information to potential compromise. Use of illicit drugs is inconsistent with the high standards of performance, 

discipline, and readiness necessary to accomplish the Air Force mission.

- Air Force plan was approved by SecAF on 24 January 1990

- In January 1995, USAF Chief of Staff directed Air Force Surgeon General (AF/SG) to 

assume responsibility for the civilian (and military) drug testing program

- AFI 90-508, Air Force Civilian Drug Demand Reduction Program (28 August 2014), certified current 18 December 2015, governed the Air Force civilian drug testing plan

- Required elements of a civilian drug testing plan include:

-- Appointment of an overall program manager for each installation 

-- Drug testing to detect and deter illegal drug use

-- Initiation of personnel actions if illegal drug use is discovered 

-- Establishing an employee assistance program (EAP) to provide education and 

counseling that includes referral to rehabilitation and treatment programs available in the local community
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 695

- Air Force policy is based on federal criminal statutes on controlled substances and 

is not affected by any State laws legalizing use of marijuana or other controlled substances, even if for medical use

- Specimens are tested for evidence of the consumption of certain drugs as authorized 

by the Department of Health and Human Services. With prior approval, drugs not on 

the panel of substances routinely tested can be requested.

Types of Drug Testing

- Random Drug Testing:

-- Only employees in “sensitive positions,” which are also known as testing designated positions (TDP), are subject to random drug testing

--- TDPs include positions that involve work that impacts national security and 

public health or safety

--- Any testing requirement must be identified in a position description and 

vacancy announcement

--- Applicants for such positions are also subject to testing after tentative 

selection

-- If a position becomes a TDP, 30 day notice must be provided to the employee 

before testing may begin

- Voluntary Testing:

-- For Air Force employees not in TDP positions

-- Employee can volunteer to be included in pool for random drug testing

-- Employee remains in TDP pool until the employee notifies the personnel office 

of withdrawal at least 48-hours prior to being scheduled for a random test
696 The Military Commander and the Law

- Reasonable Suspicion Testing:

-- All Air Force employees can be tested based on reasonable suspicion that an 

employee has engaged in illicit drug use and that evidence of such use is presently in the employee’s body

--- Reasonable Suspicion: An articulated belief that an employee has used illegal 

drugs drawn from specific and particularized facts and from reasonable inferences based on those facts

--- Examples of evidence that may be reasonable suspicion:

---- Direct observation of drug use, possession, and/or physical symptoms of 

being under the influence of an illegal drug, including behavior, speech, 

appearance and body odors of the employee

---- A pattern of abnormal conduct or erratic behavior consistent with the 

use of illegal drugs

---- Evidence of drug-related impairment supported by hearsay from identified or unidentified sources supported by corroboration from a manager 

or supervisor with training and experience in the evaluation of druginduced job impairment

---- Recent arrest or conviction for drug-related offense; or the identification 

of an employee as the focus of a criminal investigation into illegal drug 

possession, use, or trafficking

---- Information provided by a reliable and credible source or independently 

corroborated

---- Evidence that the employee has tampered with or avoided a recent or 

current drug test

--- Employee can be tested if a reasonable suspicion develops that the employee 

used illicit drugs, regardless of whether that illicit drug use was while the 

employee was on or off-duty
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 697

-- Procedure for reasonable suspicion testing includes:

--- Supervisor gathers all information, facts, and circumstances supporting the 

suspicion and documents it

--- Supervisor coordinates with the staff judge advocate, civilian personnel section, and the functional chain of command

--- Proper notification to employee is required. This MUST be done in writing.

- Consent Testing:

-- All Air Force employees may be asked to consent to be tested for illicit drug use

-- Often requested if reasonable suspicion does not exist or before employee is 

ordered to test based on reasonable suspicion

-- Employee consent must be knowing and voluntary

-- Positive test results are not exempt from disciplinary actions

- Following Accident or Safety Mishap:

-- Air Force policy is to test all employees after an accident or safety mishap when 

the member’s supervisor reasonably concludes an employee’s conduct may have 

caused or contributed to the mishap

- Rehabilitation (Follow-up) Testing:

-- Employees referred for counseling or treatment for illicit drug use will be subject 

to unannounced testing for a minimum of one year

Testing Procedures

- Testing procedures are different from those used for testing military members

-- The use of Department of Health and Human Services guidelines for drug testing 

is required

-- The Air Force collects the sample and sends it to the Army Forensic Toxicology 

Drug Testing Laboratory, Fort Meade, Maryland for testing

-- Samples suspected of being adulterated are also sent to lab
698 The Military Commander and the Law

- Normally civilian employees are not directly observed when providing samples, 

unless:

-- Reason to believe employee has in the past adulterated or will attempt to adulterate a sample

-- Testing related to rehabilitation program

- Medical Review Officer (MRO) verification of positive test results is required

-- Interviews employee to determine if there is a medical reason for the test result

-- MRO makes final determination of positive, adulterated, diluted, substituted or 

negative result

- Failure of an employee to appear for a test may be considered refusal to participate 

in testing and may subject an employee to the full range of administrative and/or 

disciplinary actions, including but not limited to removal

Confidentiality Requirements

- Absent employee consent or a statutory exception, results of a drug test may not 

be disclosed

-- Drug test results can be disclosed for the following reasons:

--- To the MRO for medical review

--- To administrator of EAP

--- To management official, e.g., supervisor, for disciplinary action

--- Where required to defend against any challenge to a disciplinary action

- Results cannot be used for law enforcement purposes

- Can disclose for security requirements, e.g., clearances
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 699

Personnel Actions on Finding of Illegal Drug Use

- Required actions upon finding of illegal drug use (e.g., MRO certification of positive 

drug test result, direct observation of drug use, evidence obtained from an arrest or 

criminal conviction, employee admission)

-- Removal from TDP

-- Disciplinary action may be initiated under AFI 36-704, Discipline and Adverse 

Actions, and other applicable guidance

-- Consider safe harbor provisions. Final disciplinary action generally not permitted 

if employee:

--- Voluntarily admits drug use prior to identification;

--- Goes to counseling or rehabilitation;

--- Signs agreement (called last chance agreement) to refrain from further drug 

use; AND

--- Refrains from further use of illegal drugs

-- Referral to EAP for counseling/rehab as appropriate

- The range of disciplinary actions includes:

-- Reprimand to removal for drug use or possession or failure to take test

-- Mandatory removal

--- For refusing or unsuccessfully completing rehabilitation or counseling

--- If second drug offense

--- If involves sale or transfer of drug

--- If employee altered or attempted to alter sample

- As with any kind of disciplinary action taken against a civilian employee, staff judge 

advocate (SJA) involvement may be necessary
700 The Military Commander and the Law

References

Anti-Drug Abuse Act of 1988, 21 U.S.C. § 1501 et seq.

Executive Order 12564, Drug-Free Federal Workplace (15 September 1986)

U.S. Office of Personnel Management Memorandum for Heads of Executive Departments and 

Agencies, Federal Laws and Policies Prohibiting Marijuana Use (26 May 2015)

DoDD 5220.6, Defense Industrial Personnel Security Clearance Review Program (2 January 

1992), administrative reissuance incorporating through Change 4, 20 April 1999

DoDI 1010.09, DoD Civilian Employee Drug-Free Workplace Program (22 June 2012)

AFI 31-101, Integrated Defense (FOUO) (8 October 2009)

AFI 31-501, Personnel Security Program Management (27 January 2005), incorporating through 

Change 2, 29 November 2012, including AFI31-501_AFGM2015-01, 20 November 2015

AFI 36-704, Discipline and Adverse Actions (22 July 1994)

AFI 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program (8 July 2014)

AFI 90-508, Air Force Civilian Drug Demand Reduction Program (28 August 2014), certified current 

18 December 2015

AFI 91-204, Safety Investigations and Reports (12 February 2014), corrective actions applied on 

10 April 2014, including AFI91-204_AFGM2016-02, 11 January 2016
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 701

CIVILIAN EMPLOYEE WORKPLACE SEARCHES

The general rule is that a government search of private property without proper consent 

is unreasonable and unconstitutional under the Fourth Amendment unless the search 

has been authorized by a valid search warrant. However, the government employer can 

in some instances conduct a warrantless search of an employee’s workplace for “workrelated” purposes, such as to retrieve government property or to investigate work-related 

misconduct.

- In the leading case on workplace searches, O’Connor v. Ortega, 480 U.S. 709 (1987), 

the Supreme Court recognized that government employees may have a reasonable 

expectation of privacy in their work areas which may be protected from warrantless 

searches by a government employer and law enforcement

- An employee’s expectation of privacy depends on how much control he or she 

exercises over his workplace. The more control the employer exercises, the lower 

the employee’s expectation of privacy, the lower the resulting right to privacy, and 

the less need there would be for the employer to obtain a search warrant in order 

to conduct a search.

- All workplace searches must be reasonable under all the circumstances. Reasonableness depends upon (1) whether the action was justified at its inception and (2) 

whether it was reasonably related in scope to the circumstances that prompted the 

search.

- In order to determine if the action is justified, employers must determine if the burden of obtaining a warrant is likely to frustrate the governmental purpose behind 

the search. Employers frequently need to enter the offices and desks of employees 

for legitimate, work-related reasons wholly unrelated to illegal conduct.

- Whether the search is a non-investigatory, work-related intrusion or an investigatory 

search for evidence of suspected work-related employee misconduct, the proper 

approach for civilian employee workplace searches is to balance the employee’s 

legitimate expectations of privacy against the government’s need for supervision, 

control, and efficient operation of the workplace
702 The Military Commander and the Law

Bottom Line

- Government offices are provided to employees for the purpose of facilitating the 

work of an agency. Employees may avoid exposing personal belongings at work by 

simply leaving them at home.

- Government searches to retrieve work-related materials or to investigate violations 

of workplace rules do not violate the Fourth Amendment. Hence, supervisors are 

generally not required to obtain a search warrant whenever they wish to enter an 

employee’s desk, office, or file cabinet.

- Personal handbags, luggage, and briefcases are not usually considered part of the 

workplace and, therefore, a search warrant or authorization is required before searching them

- Consult the staff judge advocate before proceeding with any search and seizure 

action

Reference

U.S. Const. Amend. IV

O’Connor v. Ortega, 480 U.S. 709 (1987)
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 703

UNACCEPTABLE PERFORMANCE BY 

CIVILIAN EMPLOYEES

The Civil Service Reform Act (CSRA) of 1978 was enacted to improve government efficiency, give authority to supervisors and managers, and adequate protection to employees. AFI 36-1001, Managing the Civilian Performance Program, implements a program to 

evaluate the performance of civilian employees. The CSRA and AFI 36-1001 require:

- The appraisal and rating of employees’ job performance to be based on written 

performance elements and standards

- The performance appraisal rating to be used as a basis for decisions to pay, reward, 

assign, train, promote, retrain, or remove employees

Appeals and Grievances

- The substance of performance elements and performance standards MAY NOT be 

appealed to the Merit Systems Protection Board (MSPB) or grieved under the Air 

Force grievance system provided for in AFI 36-706, Administrative Grievance System, 

except to the extent that the employee alleges the standards in and of themselves 

violate the statutory requirements pertaining to them

-- Similarly, disputes concerning the identification of the critical elements of a 

position and establishment of performance standards are nongrievable and 

nonarbitratable under negotiated grievance and arbitration procedures

- Employees who are not members of a bargaining unit resolve disputes on ratings 

pursuant to AFI 36-706 

- Bargaining unit employees resolve disputes on ratings through the negotiated grievance procedure of the local collective bargaining agreement (CBA)

- Most employees may appeal a demotion or removal for unacceptable performance 

to the MSPB. Bargaining unit employees must choose either to appeal to the MSPB 

or use the CBA’s grievance procedure, but cannot do both.

- Allegations of discrimination may be processed under either AFI 36-2706, Equal 

Opportunity Program Military and Civilian, or the negotiated grievance procedure, 

but not both
704 The Military Commander and the Law

Performance and Appraisal Process

- Development of the Performance Plan:

-- Most employees are required to have a performance plan

-- AF Form 860, Civilian Performance Plan, is completed within 30 days of accession 

and documents the critical position performance elements and standards for 

evaluation of overall performance for the position. AF Form 1003, Core Personnel 

Document, can also be used for this purpose.

-- Each performance plan must contain the critical elements to describe the performance requirements of the position

--- A critical element is a job responsibility so important that failure to perform 

that element would make the employee’s overall performance unacceptable

--- As a general rule, seven elements should be sufficient, though there must be 

at least one in the performance plan

-- Performance standards must be developed for each critical performance element, 

describing, at a minimum, acceptable performance—to include characteristics 

such as quality, quantity, timeliness, and behavior

-- Additional non-critical performance elements and performance evaluation 

requirements to judge the performance are also included in the plan

-- Although the employee should be given an opportunity to provide feedback, 

the supervisor makes the ultimate decision about what is included in the performance plan

-- Once the plan is approved, the employee is informed of the job requirements and 

the plan, given an opportunity to sign the performance plan, and given a copy

- Annual Performance Appraisal:

-- The normal appraisal period for most employees starts on 1 April and ends 31 

March

-- At the beginning of the appraisal period the supervisor and the employee meet 

to discuss the performance elements and standards in the plan
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 705

-- At least one progress review, usually at the midpoint of the period, is also required 

and must be documented on the AF IMT 860B, Civilian Progress Review Worksheet. 

This review is kept confidential between the reviewer and employee.

-- If the rating official or the employee is newly assigned, the performance plan will 

be reviewed and discussed, normally within 30 days

-- A copy of any such review is provided to the employee

-- At the end of the appraisal period (within 30 calendar days), the supervisor must 

complete the rating form, AF IMT 860A, Civilian Rating of Record

-- The supervisor evaluates the employee’s performance on each critical element 

to determine if “meets standards” or “does not meet standards.” A rating of 

“does not meet standards” on any critical element results in an overall rating 

of unacceptable performance. The employee is entitled to a copy of the form.

Dealing with Performance Problems

- All supervisors should conduct periodic performance reviews

-- Performance reviews are accomplished at the end of the cycle or “out-of-cycle”

-- The employee must have been in the position for 90 days or more before an 

out-of-cycle evaluation can be done

- At any time during the performance cycle that a non-probationary employee’s performance in one or more critical elements becomes unacceptable, the supervisor must 

inform the employee of the critical element for which performance is unacceptable, 

in what way it is unacceptable, and what is required to bring it back to an acceptable 

level

-- This notice should be accomplished in writing (check with Civilian Personnel 

Section (CPS) and SJA for preparation and review) and provide the employee a 

period of time within which to improve

--- Called the performance improvement period (PIP) or opportunity period

--- The employee’s performance must be unacceptable; it is impermissible to 

place an employee on a PIP when their work has been only marginal

--- The length of the PIP depends on the duties involved and the nature of the 

deficiencies; generally, 30-60 days will be sufficient
706 The Military Commander and the Law

-- An employee may have the right to appeal an appraisal to the next higher 

level supervisor but the reconsideration must comply with proper grievance 

procedures

-- The supervisor must help the employee improve during the PIP through counseling, coaching, on the job training (OJT), and other methods

- When unacceptable performance in one or more critical elements continues after 

the PIP has expired, demotion or removal is authorized

- If performance on a PIP rises to an acceptable level, then a new rating is completed 

and forwarded in accordance with instructions

- If the employee’s performance improves during a PIP, but thereafter falls to unacceptable levels again, another PIP may be initiated within one year after the date of 

the beginning of the previous PIP

- Probationary employees are covered by different procedures

-- The standards and procedures for probationary employees can be found in AFI 

36-1001, Chapter 3, and for supervisors and managers in Chapter 4

-- The probationary period for an employee is one year

--- The supervisor certifies performance in writing no later than the tenth month 

of probation

--- Failure to complete certification on time may result in the employee passing 

probation by default

--- If the supervisor recommends not keeping the employee, the Civilian Personnel Section (CPS) must be contacted before the end of the period concerning 

the proper course of action

---- Written notification is required if the employee does not pass the probationary period

---- The employee is permitted a reasonable period of time to respond and 

submit supporting documentation
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 707

-- The probationary period for a supervisor or manager is no more than one year

--- The probationary period is required whenever a civilian employee first 

assumes either a supervisory or management position. There are exceptions to this requirement based on the individual’s previous experience as a 

supervisor or manager.

--- Advanced notice of the probationary period must be given to the would-be 

supervisor or manger and a performance plan concerning the probationary 

period is also required

--- If the probationary period is not successfully completed, the employee is 

returned to a non-managerial or non-supervisory position

---- They must be given written notice of this decision which must include 

the facts and reasons that motivated the decision and information on 

how the Air Force will deal with the employee’s placement rights

---- When an employee is returned to a non-supervisory or non-managerial 

position, ensure that the appropriate procedures are followed concerning grade and pay

Procedural Requirements

- Commander and supervisor actions to remove or reduce the grade of an employee 

who is not performing adequately are called Chapter 43 cases because the procedures for these actions can be found in Chapter 43 of Title 5 of the United States Code. 

Certain procedures must be followed.

-- The supervisor should coordinate with CPS first

-- The employee is entitled to 30 calendar days advance written notice of the proposed action, which includes:

--- Specific instances of unacceptable performance

--- The critical elements of the position the employee failed to perform properly

-- The employee has the right to be represented by an attorney or other 

representative

-- The employee must be given a reasonable period of time to provide a written 

or oral response
708 The Military Commander and the Law

-- Within 30 days after the expiration of the notice period, the employee must be 

informed of the decision in writing. The supervisor can extend this period for 

another 30 days.

--- The final decision must specify the unacceptable performance on which the 

reduction in grade or removal is based

--- A higher level manager must concur with the final decision

--- It must inform the employee of his/her appeal rights and whether he or she 

is eligible for disability or retirement

- After demoting or removing an employee, pertinent documents are kept in accordance with the Records Disposition Schedule, located in the Air Force Information 

Management System, and must be available for review by the employee or his representative. Included among those documents are:

-- A copy of the notice of proposed action

-- The employee’s reply and/or a summary of the oral reply

-- Notice of the decision and the reasons therefore

-- Documentation supporting the personnel action

Action Required when a Medical Condition Affects Performance

- Supervisors will not always know whether the employee’s health is impaired or 

whether it is causing a performance problem. If the supervisor suspects the employee’s performance is affected by drugs or alcohol abuse, or by some other medical 

condition, follow the provisions of AFI 44-121, Alcohol and Drug Abuse Prevention and 

Treatment (ADAPT) Program.

- When a medically based performance problem exists or might exist, the supervisor 

must inform the employee his/her performance is suffering, advise the employee to 

supply medical documentation of the condition that is or could be affecting work, 

and explain what documents are required and when they should be provided

-- The employee will be informed as to exactly what documentation is required and 

the amount of time granted to provide it. If not provided on time, the supervisor 

may grant an extension or proceed with the process. Medical documentation is 

defined in 5 C.F.R. Part 339, Sec. 339.102.
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 709

-- Any documentation provided will be reviewed by the supervisor and an Air Force 

or other federal medical officer

-- The employee should provide the needed documentation

--- Based on the length of service and position of the employee, the employee 

will be furnished information concerning disability retirement

--- The information will be reviewed by the supervisor and a qualified physician; 

such a review may lead to a medical examination

- The Air Force follows the rules set forth in 5 C.F.R. Pt. 339 for medical examinations. 

Basically, Air Force directed medical examinations are severely limited and may be 

ordered ONLY WHEN:

-- The employee occupies a position that has physical/medical standards, also 

known as fitness for duty exams

-- The Air Force needs to determine whether employee who claims worker’s compensation may be accommodated in another job, or

-- The Air Force needs to determine qualifications of employee for reassignment 

rights because of a reduction in force (RIF)

- The Air Force may always offer a medical exam to supplement medical documentation, but acceptance is optional with the employee

- The Air Force always has an obligation to reasonably accommodate a handicapped 

employee. Supervisors must coordinate with the appropriate Civilian Personnel Section (CPS), installation’s Disability Program Manager (DPM) and staff judge advocate 

(SJA) prior to taking any action.

References

5 U.S.C. §§ 4301-4315

5 C.F.R. Part 339

AFI 36-704, Discipline and Adverse Actions (22 July 1994)

AFI 36-1001, Managing the Civilian Performance Program (1 July 1999)

AFI 36-2706, Equal Opportunity Program Military and Civilian (5 October 2010), incorporating 

Change 1, 5 October 2011

AFI 36-706, Administrative Grievance System (22 May 2014)

AFI 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program (8 July 2014)
710 The Military Commander and the Law

CIVILIAN EMPLOYEE DISCIPLINE

Federal law and Air Force instructions enable commanders to take disciplinary action 

against civilian employees for misconduct that affects the workplace or mission accomplishment. Certain adverse actions create appeal rights for the employee.

Introduction

- Disciplinary action or adverse action must be taken without regard to marital status, 

political affiliation, race, color, religion, sex, national origin, or age. Adverse action 

based on physical handicap is not taken when the employee can effectively perform 

assigned duties.

- Disciplinary action or adverse action must be taken only when necessary, and then 

promptly and equitably

-- Disciplinary actions and adverse actions are personal matters and are carried 

out in private

-- An adverse action is an action giving a civilian employee a right to appeal. They 

include: removals, suspensions for more than 14 days, furloughs for 30 days or 

less, and reductions in grade or pay.

--- Adverse actions may or may not be for disciplinary reasons—for example, it 

is possible to take adverse action for unacceptable performance

--- Nonappropriated fund (NAF) employees do not have the right to appeal, 

regardless of the type of action taken

-- Disciplinary action not subject to appeal includes: admonishments, reprimands, 

and suspensions for 14 days or less

Authority and Requirements

- All Air Force commanders (and supervisors) are delegated authority to take disciplinary and adverse action when necessary

-- AFI 36-704, Discipline and Adverse Actions, covers all competitive and excepted 

service employees

-- AFI 34-301, Nonappropriated Fund Personnel Management and Administration, 

covers nonappropriated fund employees
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 711

- Management may take a disciplinary or adverse action only for such cause as will 

promote the efficiency of the service, unless the action is being taken for unacceptable performance, in which case different standards apply

- Management may not take an action that would result in a prohibited personnel practice. A prohibited personnel practice is an adverse action taken against an employee 

for an illegal or inappropriate reason, such as reprisal or discrimination.

- Burden of Proof: Management must be prepared to support disciplinary and/or 

adverse action by a preponderance of the evidence, i.e., more likely than not, and 

must be capable of proving, before the Merit Systems Protection Board (MSPB) or a 

federal sector arbitrator, the following:

-- The reason for the action taken, i.e., that the alleged misconduct occurred and 

the action was taken in response to that misconduct

-- How the action taken promotes the efficiency of the service

-- A connection between the misconduct and the employee’s job

--- Known as the “nexus” and it must be shown in each case

--- There has to be a connection between what the employee did and the ability of the Air Force to do its job. In other words, the Air Force has to show 

what the employee did was harmful or that the action taken to discipline the 

employee was necessary to help the Air Force do its job.

-- The penalty imposed is appropriate to the offense

Procedures

- Management procedures (unless there is a local collective bargaining agreement 

that contains other provisions)

-- Gather the facts. Interview the employee if necessary, but a bargaining unit 

employee has rights (called Weingarten Rights) to have union representation if 

the employee believes disciplinary action could result from questioning from 

his/her employer and he/she requests a union representative

-- Consult with the Civilian Personnel Section (CPS) and the staff judge advocate 

(SJA) to consider options and determine what action is appropriate
712 The Military Commander and the Law

- Civilian Personnel Section will prepare and the Labor Law Field Support Center 

(LLFSC) will review the notice letter of adverse and/or disciplinary action for signature 

by the “proposing official” (normally a first or second level supervisor)

-- The local SJA will work with the LLFSC during this review. The LLFSC is composed 

of a group of 40-50 labor lawyers and paralegals headquartered at Joint Base 

Andrews, MD, as well as other field offices throughout the continental United 

States (CONUS). Its mission is to assist local SJAs in labor law matters and to 

provide representation in most administrative and all judicial tribunals. The base 

SJA remains the advisor to the commander.

-- The notice letter must be signed by the proposing official and inform the 

employee of the following. Some of the items listed below are considered nonmandatory, but prudent practice dictates the inclusion of all of these items.

--- Notice of the precise action being proposed, e.g., suspension or removal

--- The reason for the action, which includes the type of misconduct and a brief 

factual description of the misconduct. Keep it simple and straightforward; 

there are additional specific requirements when the proposed action is 

furlough.

--- A statement of the employee’s right to review the material or evidence relied 

upon to support the reason for action

--- A description of the arrangements the employee can make to review the 

evidence or include a copy of the evidence

--- Date the proposed action is to take place

--- Notice of the right to respond orally, in writing or both, and to furnish documentary evidence. Include the name and office of the person to whom the 

response should be sent.

--- Amount of official time for preparation of a response

--- Right to representation (union representative, private attorney, or other 

person)

--- Additional non-mandatory information mentioned in the instruction as 

might be necessary based on the particular situation or that might be necessary pursuant to the collective bargaining agreement
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 713

-- The notice must include all aggravating factors considered by the proposing 

official, e.g., prior discipline, poor performance, seriousness of the alleged offense

-- The employee gets a reasonable amount of time, but not less than 7 days to 

answer orally and in writing, and to furnish affidavits and other documentary 

evidence in support of the answer

- The “deciding official” makes the final decision

-- Usually the supervisor one level up from the proposing official (but may be the 

same person)

-- In most cases, the final decision is made 30 days after the notice is given to the 

employee

--- Must be in writing (prepared by CPS and reviewed by SJA) and served on the 

employee. It must include, among other things:

---- The specific decision

---- The specific reasons for the decision

---- The date of the decision and the effective date of the action

---- Information concerning the employee’s appeal rights

---- The signature of the deciding official

---- Additional non-mandatory information described in the instruction 

may also be included if the situation dictates or that might be necessary 

pursuant to the collective bargaining agreement

-- The deciding official must consider employee’s response

-- The deciding official must also document his/her consideration of the Douglas 

Factors governing appropriate penalty selection. McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973).

--- Douglas Factors are those factors that management must consider before 

taking disciplinary action. They include, for example, the seriousness of the 

misconduct, the work record of the employee, and other similar considerations. See AFI 36-704.
714 The Military Commander and the Law

--- Use the CPS and SJA to assist in preparation

-- A decision letter must be sent to the employee

Appeals

- If the employee is a bargaining unit (union) member, he/she may file a grievance under 

the negotiated grievance procedure of the local collective bargaining agreement

- Regardless of bargaining unit status, an employee may file:

-- An equal employment opportunity (EEO) complaint if the employee is alleging 

discrimination. This applies to competitive, excepted service, and nonappropriated fund employees.

-- An appeal within 30 days with the regional office of the Merit Systems Protection 

Board (MSPB), but the action must involve:

--- A removal

--- Suspension for more than 14 days

--- Reduction in grade or pay

--- Furlough of 30 days or less

- Appeals can result in an administrative, trial-type hearing before:

-- A federal sector arbitrator

-- The MSPB

-- The Equal Employment Opportunity Commission (EEOC)

- If an appeal is filed, Air Force management officials will probably be required to testify

- Failure to meet the burden of proof described above could result in mitigation and/or 

reversal of the penalty imposed along with the employee receiving back pay, reinstatement, and/or attorneys’ fees
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 715

- The LLFSC will provide representation during hearings on these matters. While the 

LLFSC will provide a substantial amount of litigation support, the local SJA will remain 

the commander’s advisor.

Air Reserve Technicians (ARTs)

- ARTs are “dual status” federal civilian employees and members of the Selected Reserve. 

As a condition of federal civilian employment, ARTs must maintain membership in the 

Selected Reserve. ART positions within the Selected Reserve span a broad spectrum 

to include command billets.

- ARTs who are in the military status performing duty for pay/points are subject to 

the UCMJ

- ARTs that are in federal civilian employee status are not subject to the UCMJ; however, they are subject to all civilian employee disciplinary measures discussed in this 

section. Additionally, an ART in civilian employee status may be subject to military 

administrative actions such as letters of counseling, admonishment, reprimand (LOC/

LOA/LOR), demotion and discharge.

- Military discharge of an ART will lead to the loss of an ART’s civilian employee position

- ART commanders must be in military status when taking certain actions such as preferral/referral of charges, Article 15 actions, urinalysis testing and command directed 

investigations. Consult with your local SJA for guidance regarding actions in which 

military status is required.

References

5 U.S.C. § 9902

AFI 34-301, Nonappropriated Fund Personnel Management and Administration (16 April 2013)

AFI 36-704, Discipline and Adverse Actions (22 July 1994)
716 The Military Commander and the Law

CIVILIAN EMPLOYEE INTERROGATION

In 1975, the U.S. Supreme Court, in N.L.R.B. v. Weingarten, 420 U.S. 251 (1975), established a 

right for an employee to have union representation if the employee believed disciplinary 

action could result from questioning by his employer and if the employee requested the 

presence of a union representative. In the federal sector, employees have the right for 

labor union representation as well. This section outlines the employee’s rights during an 

interrogation. These rights are commonly known as Weingarten Rights.

- The union’s and the employee’s right to union representation in connection with an 

investigation is applicable when four conditions are present:

-- A meeting is held in which management questions a bargaining unit employee

-- The examination is in connection with an investigation (need not be a Security 

Forces or other formal investigation)

-- The employee reasonably believes that discipline could result from the examination; and

-- The employee requests representation

- Other guidelines concerning this rule:

-- It does NOT apply to an actual counseling session

-- The role of the union representative during the interview is to

--- Clarify the facts and the questions

--- Help the employee express his/her views

--- Suggest other avenues of inquiry

--- Suggest other employees who may have knowledge of the facts

--- Insure the employer does not initiate or impose unjust punishment

--- There may also be a right for the union representative and the employee to 

confer in private, but this depends on the nature of the case
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 717

-- Agencies must announce this right on an annual basis at all places where employees normally receive employment information

-- Individuals being investigated may not serve as representatives for other employees being investigated until their own investigations are completed

-- An employee may waive his/her Weingarten Rights

-- Executive Order 12171 exempts Air Force Office of Investigations (AFOSI), 

when acting under its independent mandate to conduct criminal and security 

investigations, from the Federal Labor Management Relations Statute. In such 

criminal investigations, AFOSI is not obligated to honor an employee’s request 

for representation.

- Management cannot tell a union representative to remain silent or not to offer advice. 

Employer may place reasonable limitations on union representative’s role to prevent 

adversarial confrontation, but aggressive, unreasonable management behavior interferes with right to union representation. This is an unfair labor practice (ULP).

- Once an employee requests a union representative, management may:

-- Grant the request

-- Suspend the interview

-- Give the employee the choice of having an interview without a union representative or having no interview

- Civilian employees also have a legal obligation to account for the performance of 

their duties, and a failure to provide desired information can serve as a basis for 

removal under certain circumstances

-- An employee cannot be discharged simply because he/she invokes his/her Fifth 

Amendment privilege against self-incrimination; nor can statements coerced by 

a threat of removal be used against the employee in a subsequent prosecution

-- An employee can be removed for not replying if he/she is adequately informed 

both that he/she is subject to discharge for not answering and that his/her replies 

cannot be used against him/her in a criminal case

--- If the commander/supervisor suspects criminal activity on the part of the 

employee, the best course is to call the staff judge advocate (SJA)
718 The Military Commander and the Law

-- Any desire to offer immunity to an employee must be coordinated with the SJA 

who will consult with (and possibly get approval from) the Department of Justice 

and/or U.S. Attorney

- An employee also has the right to be advised of the consequences of participating 

or not participating in an interview for a third party proceeding (unfair labor practice 

hearing, arbitration, Merit Systems Protection Board (MSPB) hearing, etc.), and failure 

to do so can be a Unfair Labor Practice (ULP) by management. These rights are known 

as Brookhaven rights, from IRS and Brookhaven Service Center, 9 F.L.R.A. 930 (1982), 

and the employee must be advised of:

-- The purpose of the interview

-- That no reprisal will take place if the employee refuses to participate; and

-- Participation is voluntary

- The interview cannot be coercive in nature. Questions must not exceed the scope 

of the legitimate purpose of the inquiry and cannot otherwise interfere with the 

employee’s statutory rights.

References

5 U.S.C. §§ 7114(a)(2)(B); 7116(a)(1)

NLRB v. Weingarten, 420 U.S. 251 (1975)

Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280 (1968)

Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973)

IRS and Brookhaven Service Center, 9 FLRA 930 (1982)
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 719

EQUAL EMPLOYMENT OPPORTUNITY (EEO) 

COMPLAINT PROCESS

There are two ways to process an Equal Employment Opportunity (EEO) complaint—

informally or formally. The decision on which process to pursue is made by the complaining individual 

Informal Complaint

- Timing: Persons who believe they have been discriminated against on the basis 

of race, color, religion, sex, national origin, age, or disability, or who believe they 

have been subjected to sexual harassment or retaliated against for participating in 

the complaint process, must normally initiate contact with an Equal Employment 

Opportunity (EEO) counselor within 45 days of the date of the matter alleged to be 

discriminatory, or in the case of a personnel action, within 45 days of the effective 

date of the action

- Initial Counselor Interview: Counselors must advise individuals in writing of their 

rights and responsibilities. Counselors shall advise aggrieved persons that, where 

the agency agrees to offer alternative dispute resolution (ADR) in the case, they may 

choose between participation in the program and the counseling activities. If the 

matter is not resolved in the ADR process within 90 days of the date the complainant 

contacted the EEO, the complainant must be issued a notice of final interview.

- Final Interview: If the matter has not been resolved, either through ADR or the complaint process, the counselor shall inform the aggrieved person in writing, of the right 

to file a formal discrimination complaint within 15 days of the notice of final interview

Formal Complaint

- Written Complaint: A complaint must be submitted in writing within 15 days of final 

interview notice and can include a single claim or multiple claims of discrimination. 

Complainant may amend the complaint (with like or related claims) at any time prior 

to conclusion of investigation.

- Dismissals of a Complaint or Claims: Prior to a request for a hearing in a case, the 

agency can dismiss an entire complaint or individual claims for several reasons, such 

as late filing of the formal or informal complaint. However, the agency cannot dismiss 

a complaint based on the merits of the complaint, such as a belief that the complainant has not proven that the agency discriminated against the complainant.
720 The Military Commander and the Law

- Appeal of Dismissal: A complaint dismissed in whole by the agency can be appealed, 

within 30 days of receipt, to the Equal Employment Opportunity Commission’s (EEOC) 

Office of Federal Operations

- Partial Dismissals: When an agency dismisses some but not all of the claims in a 

complaint, it must notify the complainant in writing of the rationale for the decision 

and shall notify the complainant that those claims will not be investigated

Investigation of Complaints

- Investigation: The Agency has 180 days from the filing of the formal complaint to 

complete its investigation of the discrimination complaint and provide the investigative file to the complainant. The DoD, Defense Civilian Personnel Advisory Service, 

Investigations and Resolutions Division (IRD), will conduct the investigation and 

assemble the investigative file. The file includes exhibits provided by the agency 

representative and the complainant, affidavits of witnesses and the investigative 

report.

- Complainant Decides on Course of Action: Within 30 days of receipt of the investigative file, complainant must either:

-- Request a final decision from the agency head based on the record, or

-- Request a hearing and decision from an EEOC Administrative Judge (AJ), normally 

at the nearest EEOC District Office

-- If complainant does not request a hearing within 30 days, the agency will issue 

a final decision based on the record

Final Decisions by the Agency

Written Decision: The Air Force Civilian Appellate Review Office (AFCARO) receives the 

investigative file and issues the Final Agency Decision (FAD) within 180 days. The FAD 

is appealable in the same manner as a Final Agency Action following an EEOC Hearing 

(discussed below).
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 721

Request for an EEOC Hearing

- Request for Hearing: Complainants make requests for a hearing directly to the EEOC 

office. After receiving the hearing requests, the AJ will order the agency provide the 

investigative file and set out procedures for litigation of the complaint. The AJ may 

also review any claims dismissed by the agency, any new claims and issue a ruling 

as to whether those new claims will be consolidated with the current complaint.

- Discovery: The AJ issues a discovery order which allows each party to develop evidence. The order requests the production of documents and questions witnesses 

using methods such as interrogatories, requests for admissions and depositions.

- Hearings: The AJ may issue an order for a hearing. Agencies shall provide for the attendance at the hearing of all federal government employees approved as witnesses by 

the AJ. The AJ takes as evidence information or documents relevant to the complaint. 

The hearing is recorded and the agency arranges and pays for verbatim transcripts.

Post-Hearing

- Decision: Within 180 days of receipt of the complaint file from the agency, the AJ 

will issue a decision on the complaint, and will order appropriate remedies and relief 

where discrimination is found

- Final Agency Action after Hearing: When an AJ has issued a decision, the agency shall 

take final action on the complaint by issuing a final order within 40 days of receipt of 

the hearing file and the AJ’s decision

-- AFCARO issues the Final Agency Action for the Air Force

- Complainant’s Appeal of Final Agency Action: The complainant may appeal the 

agency’s final action to the EEOC’s Office of Federal Operations (OFO) within 30 days 

of receipt of the Final Agency Action

- Request for Reconsideration: Any party may request reconsideration by the full Equal 

Employment Opportunity Commission within 30 days of receipt of a decision of the 

EEOC/OFO. A decision issued by the EEOC/OFO is final unless the full Commission 

reconsiders the case.
722 The Military Commander and the Law

Civil Action

- A complainant may sue for discrimination in federal court

- Prior to filing a civil action under Title VII or the Civil Rights Act, a complainant must 

first exhaust the administrative process. “Exhaustion” for the purposes of filing a civil 

action may occur at different stages of the process. The regulations provide that civil 

actions may be filed in an appropriate federal court:

-- Within 90 days of receipt of the final action where no administrative appeal has 

been filed;

-- After 180 days from the date of filing a complaint if an administrative appeal has 

not been filed and final action has not been taken;

-- Within 90 days of receipt of EEOC’s final decision on an appeal; or

-- After 180 days from the filing of an appeal with EEOC if there has been no final 

decision by the EEOC

- Under the Age Discrimination in Employment Act (ADEA), a complainant may proceed directly to federal court after giving the EEOC notice of intent to sue. An ADEA 

complainant who initiates the administrative process in 29 C.F.R. Part 1614 may also 

file a civil action within the time frames noted above.

- Under the Equal Pay Act, a complainant may file a civil action within 2 years (3 years 

for willful violations), regardless of whether he or she has pursued an administrative 

complaint

- Filing a civil action terminates EEOC processing of an appeal

Remedial Actions

- When discrimination is found, remedial actions can be ordered, such as:

-- Disciplinary Action: A recommendation for disciplinary action for individuals 

found to have engaged in intentional discrimination or retaliation;

-- Reinstatement or Nondiscriminatory Placement: Placement of the victim in the position he/she would have occupied if the discrimination had not occurred;
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 723

-- Back Pay: Reimbursement of back pay reduced by interim earnings; employee 

had to have been ready, willing and able to work to be entitled to back pay;

-- Erasing Adverse Materials from Records: Erasing from the agency’s records any 

adverse materials relating to the discriminatory employment practice;

-- Restoration of Benefits: Full opportunity to participate in the employee benefit 

denied, such as training, preferential work assignments, overtime scheduling; and

-- Restoration of Leave: Restoration of leave the employee was forced to take or lost 

as a result of the discrimination

-- Fees and Costs: Attorney’s fees and costs shall apply to allegations of discrimination prohibited by Title VII of the Civil Rights Act and the Rehabilitation Act. A 

finding of discrimination raises a presumption of entitlement to an award of 

reasonable attorney’s fees.

- Compensatory Damages: Compensatory damages include damages for past monetary loss (out of pocket loss), future monetary loss, and emotional loss. There is a 

statutory cap of up to $300,000 on future pecuniary damages, and non-pecuniary 

damages. The $300,000 cap does not include past pecuniary damages, back pay, front 

pay, attorney fees, or lost benefits. Punitive damages are not available.

- Injunctive Relief: A court order to cease a specified act or behavior

Miscellaneous

- The primary source for legal advice for informal complaints is the installation legal 

office

- The Labor Law Field Support Center (LLFSC) is the primary source of legal advice 

for formal complaints and civil actions arising from EEO claims. LLFSC personnel 

will coordinate on dismissals or acceptance of formal complaints, will represent the 

agency through the IRD investigation and any administrative hearing before the 

EEOC and will defend the Air Force with the U.S. Attorney in federal courts.

-- The Air Logistics Centers and certain other locations are excluded from LLFSC 

coverage. Regardless, the installation staff judge advocate (SJA) remains the legal 

counselor to the commander.
724 The Military Commander and the Law

- Official Time: Reasonable time to prepare complaints and attend hearings, ADR 

or meetings regarding the complaint should be allowed. Official time is normally 

considered in hours, not days or weeks. Witnesses for EEO complaints do not get 

official time to prepare, but do get it when their presence is authorized or required 

by Commission or agency officials in connection with a complaint.

- Alternative Dispute Resolution (ADR): Air Force policy is to use ADR to the maximum 

extent practicable. ADR is voluntary and can be used at any time throughout the 

EEO process.

- Settlement of Complaints: Settlement discussions and settlement of a complaint 

can occur at any time throughout the EEO process. Settlement of a complaint normally involves coordination of any settlement terms with the designated settlement 

authority, LLFSC, installation SJA, AFPC and EEO Director. Entering a settlement is not 

an admission of wrongdoing by the Air Force.

The Notification and Federal Employee Antidiscrimination and Retaliation Act of 

2002 (Commonly Known as the “No Fear Act”)

- The No FEAR Act was enacted on 15 May 2002, and became effective 1 October 2003

- The purpose of the act is to improve agency accountability for anti-discrimination and 

whistleblower laws by requiring federal agencies to reimburse the Treasury’s Judgment Fund for settlements and judgments paid to employees as the result of such 

complaints, and by establishing extensive agency reporting requirements. Previously 

most settlements and judgments in favor of federal employees who sued agencies 

in discrimination and whistleblower cases were paid from a government-wide “judgment” fund.

- Agencies must provide to their employees written notification of discrimination and 

whistle-blower protection laws

- Federal agencies and the EEOC must disclose and publish statistical complaint data
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 725

References

Equal Pay Act of 1963, 29 U.S.C. § 206 

Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. 

Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.

Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, 

29 U.S.C. §§ 621-634

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

29 U.S.C. § 206

29 U.S.C. § 255

29 C.F.R. § 1614

AFI 36-2706, Equal Employment Opportunity Program Military and Civilian (5 October 2010), 

incorporating Change 1, 5 October 2011

AFI 51-1201, Conflict Management and Alternative Dispute Resolution in Workplace Disputes 

(17 March 2014)

EEO Management Directive 110 (2015)
726 The Military Commander and the Law

WHISTLEBLOWER PROTECTION ACT

In 1989 Congress amended the Civil Service Reform Act of 1978 with the Whistleblower 

Protection Act (WPA) of 1989. The Act substantially strengthened the protection for 

whistleblowers in the federal government. In 2012, Congress again amended the WPA 

with the Whistleblower Protection Enhancement Act in order to eliminate judicial exceptions that had been created over time.

- The Act made the Office of Special Counsel (OSC) independent of the Merit Systems Protection Board (MSPB) and specifically charged the OSC with protecting 

employee-whistleblowers

- If the OSC fails or refuses to act on the complaint, the individual has an independent 

right to bring the case him/herself before the MSPB as an Independent Right of 

Action (IRA) appeal

- A prevailing whistleblower has a right to obtain attorney’s fees and costs associated 

with litigation

Individual Actions, Protections, and Burden of Proof

- Employees (including former employees and applicants) who believe they have suffered reprisal (a negative or prohibited personnel action in some form) for disclosing 

matters of gross mismanagement, gross waste of funds, abuse of authority, a substantial and specific danger to public safety, or a violation of law, rule or regulation, must 

first seek the assistance of OSC before bringing an individual action. These types of 

disclosures are referred to as “protected disclosures.”

-- If OSC notifies the employee that its investigation is over and that the OSC will 

not act, the employee has 60 days to file an appeal alleging reprisal with MSPB

-- If requested by the OSC, the MSPB will grant a 45-day postponement (“stay”) of 

a personnel action (such as a removal) taken against a whistleblower

-- If the employee receives no notice from OSC within 120 days of filing a complaint, 

the employee then may file an appeal with the MSPB
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 727

- The following employees are protected by the WPA:

-- Persons who make protected disclosures

-- Persons who suffer a retaliatory personnel action because they are believed to 

have made a protected disclosure, even if they have not actually done so

-- Persons who suffer a retaliatory personnel action because of their relationship 

to someone who has made a protected disclosure

- To establish a basic (prima facie) case of whistleblowing, the employee (or OSC acting 

for the employee) must prove by a preponderance of the evidence that the whistleblowing was a contributing factor in the personnel action taken or threatened against 

that employee

-- Preponderance of the evidence means “more likely than not”

- If a prima facie case is established, then the agency must prove by clear and convincing evidence that it would have taken the same personnel action regardless of the 

whistleblowing

-- Clear and convincing is defined as that measure or degree of proof that will 

produce in the mind of the fact-finder a firm belief or conviction as to the truth 

of the allegation. This standard falls somewhere between preponderance of the 

evidence and beyond a reasonable doubt, which is the highest standard of proof 

and only used in a criminal context.

- Mere harassment and threats, even without any formally proposed personnel action, 

can constitute a prohibited personnel action, triggering the protection of the Whistleblower Protection Act

Outcomes

- An individual who has committed a prohibited personnel practice by taking a reprisal 

action against a whistleblower may be disciplined

-- OSC files written complaint with MSPB and acts as a prosecutor

-- The employee is entitled to a hearing before the MSPB
728 The Military Commander and the Law

-- MSPB may impose the following sanctions on the individual that took the prohibited personnel action:

--- Removal

--- Reduction in grade

--- Debarment from federal service for up to 5 years

--- Suspension

--- Reprimand

--- Civil penalty not to exceed $1,000

-- An employee disciplined under these provisions may appeal an adverse decision 

to U.S. Court of Appeals for the Federal Circuit

- The whistleblowers who win their cases may have the retaliatory personnel action, 

for example the suspension, demotion, or removal overturned

- OSC may recommend disciplinary action against a member of the Armed Forces to 

the head of that member’s branch of service

References

The Whistleblower Protection Act of 1989, 5 U.S.C. § 1201, et seq.

5 U.S.C. § 2302

The Civil Service Reform Act (CSRA) of 1978, 5 U.S.C. § 7101, et seq.
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 729

FAMILY AND MEDICAL LEAVE ACT (FMLA)

The Family and Medical Leave Act of 1993 (FMLA) is intended to balance the demands 

of the workplace and the needs of families, and to promote the stability and economic 

security of families, thereby promoting the national interest in preserving family integrity. 

The FMLA seeks to accomplish these goals by allowing employees to take reasonable 

amounts of unpaid leave for various medical and personal reasons.

- FMLA is available to full-time and part-time employees. An employee must have 

completed 12 months of service before applying for FMLA. However, this service 

does not have to be recent or consecutive.

- Federal employees are covered by the FMLA. It does not apply to active duty military 

personnel or to intermittent or temporary employees.

Leave Entitlement Under the Act

- Entitlements under the Act may not be diminished by any collective bargaining 

agreement (CBA) or any other employee benefit plan. Conversely, an agency must 

comply with any employment policy or collective bargaining agreement that provides for a greater family or medical leave entitlement than under the FMLA.

- Each employee may use up to 12 work weeks of unpaid leave during any 12-month 

period for specified reasons

-- May be taken in conjunction with, or substituted with, other available paid time 

off (annual leave, sick leave, advanced leave, or other leave without pay)

-- May be taken as a block or intermittently (under certain conditions)

-- Less detailed documentation required than for sick leave

- Procedures for determining the type of leave to be used are complicated, making 

consultation with the staff judge advocate (SJA) crucial

- FMLA entitlement may be used for the following purposes:

-- The birth and care of a child of the employee

-- The placement of a child with the employee for adoption or foster care
730 The Military Commander and the Law

-- The care of a spouse, child, or parent who has a serious health condition

-- A serious health condition of the employee that makes the employee unable to 

perform the essential functions of his/her position

Notice of Intent to Use Leave Under the FMLA

- Barring emergency situations, the employee must provide notice to supervisor not 

less than 30 days prior to when the need for leave is foreseeable. If circumstances 

preclude providing the 30-day notice, it is the employee’s responsibility to give the 

agency as much notice as possible.

- Notice may be provided in person, in writing, by telephone, by any electronic means, 

or in emergencies, through a third party such as a spouse or other responsible person

Medical Certification

- Supporting documentation must include a statement that the employee is “needed 

to care for” the individual, the patient requires assistance for care, safety, or transportation needs and the employee’s presence would be beneficial or desirable for 

the care of the individual

- In the case of leave for his/her own serious health condition, the Air Force can require 

medical certification from the employee’s health care provider, which must include, 

among other things, a statement that the employee has a serious health condition 

that makes it impossible to perform the essential functions of the position. The Air 

Force can also require periodic reports as to the employee’s status and intent to 

return to work.

- If the agency doubts the certification, it may require a second medical certification; 

however, it must select and pay for the services of the health care provider. If the second opinion differs, the agency and employee must jointly agree on a third provider 

who will provide a final and binding opinion.

- If the employee is unable to provide the certification prior to commencing the leave, 

then the agency must grant leave on a provisional basis. If ultimately the employee 

is unable to provide the required certification, then the leave granted should be 

charged to the employee’s paid leave account.
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 731

Return to Work

- An employee, absent from work under the FMLA, is entitled to be returned to the 

same position or to an equivalent position with equivalent benefits, pay, status, and 

other terms and conditions of employment

- If the employee has not fully recovered at the time they return to work, additional 

leave may be taken, to include annual or sick leave, leave under the Federal Employees Family Friendly Leave Act, donated leave, or additional leave without pay

References

5 U.S.C. §§ 6381-87 

Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq.

5 C.F.R. § 630.401

5 C.F.R. §§ 630.1201-1211 

AFI 36-815, Absence and Leave (8 July 2015)
732 The Military Commander and the Law

UNEMPLOYMENT COMPENSATION

Introduction

Since 1955, federal employees have been eligible for state unemployment benefits. 

This section outlines the authority for the program and the procedures that should be 

followed.

- Benefits are paid by the states, applying applicable state unemployment compensation law, but:

-- Department of Labor (DOL) reimburses the states on a quarterly basis

-- Federal agencies reimburse the DOL for payments to state agencies

-- Air Force pays approximately $5 million annually in unemployment compensation

The Concern

- If an employee is successfully removed because of either misconduct or unsatisfactory 

performance, the Air Force may still be required to pay unemployment compensation

- Eligibility:

-- Monetary Eligibility: To qualify for unemployment benefits, an employee must 

have earned a certain amount during a certain period of time

-- Separation: The employee must have been separated through no fault of his own; 

however, separation for performance, versus conduct, may not preclude receiving benefits

-- Availability: Applicant must be able and available to accept work, and must be 

actively seeking work

- It takes a team effort of the SJA, Civilian Personnel Section, AFPC and Accounting and 

Finance to defeat meritless unemployment compensation claims
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 733

Procedures

- While varying from state to state, the procedure for claims of unemployment compensation generally is as follows:

-- A form (SF-8, Notice to Federal Employees about Unemployment Insurance) is given 

to employee by the Civilian Personnel Section upon separation

-- A claim is filed by the former federal employee with the appropriate state agency

--- The former employee may file a claim anywhere, if he/she chooses, but benefits are paid by the state of the employee’s last duty assignment

--- If the employee was overseas, he/she must return to the United States to file, 

and his state of residence will pay any appropriate benefits

-- The state agency sends a Form ES-931, Request for Wages and Separation Information, to the federal agency requesting “federal findings,” i.e., the facts reported by 

a federal agency pertaining to an individual as to:

--- Whether the individual performed federal civilian service for the agency,

--- The period of such service,

--- The individual’s wages, and

--- The reasons for termination

-- The Air Force has 4 workdays after receipt to:

--- Return the forms correctly completed or give notice that the time limit cannot be met and provide an estimated completion date

--- Retrieve retired records

-- If federal findings are not received within 12 days, the state agency may make 

an entitlement determination without the findings (subject to redetermination 

if subsequently received)
734 The Military Commander and the Law

--- Federal findings are NOT binding on the state agency. The forms should be 

completed in a manner that maximizes the likelihood that the Air Force’s views 

will be adopted with respect to eligibility, ineligibility, and disqualification.

--- Delays in completing the forms could hurt the Air Force’s ability to appeal 

the state’s determination

-- The state agency makes an initial determination

--- Either party may appeal and request a hearing

--- At the hearing, the Air Force may have to re-litigate the basis for the termination, even if the Air Force’s position has already been upheld by the Merit 

Systems Protection Board (MSPB) or by an arbitrator

--- Witnesses are often necessary. In other words, a commander who removed 

the employee may have to testify as to his/her reasons for that action.

--- If a party fails to appear for the hearing, the other party MAY win by default, 

although some states require the employer to put on its case proving misconduct even when the claimant fails to appear

-- Examiner issues a written decision

-- An administrative appeal can be made from examiner’s decision

-- Judicial review held in state court

- Time limits in state unemployment compensation cases are usually very short and 

strictly enforced

References

5 U.S.C. § 8501, et seq.

20 C.F.R. Parts 604, 609

DoDI 1400.25, Volume 850, DoD Civilian Personnel Management System: Unemployment 

Compensation (December 1996), incorporating through Change 13, 9 January 2002, 

administratively reissued 6 April 2009
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 735

FAIR LABOR STANDARDS ACT

The Fair Labor Standards Act (FLSA) is the federal law that establishes a national minimum 

wage, and sets rules for payment of overtime. Compensation claims filed under the FLSA 

have considerable potential for civilian personnel controversy and costly litigation.

Introduction

- The FLSA is a federal statute that was signed into law in 1938 by President Franklin 

Roosevelt

-- Established a national minimum wage, prevented minors from being employed 

in oppressive child labor and, most importantly for purposes here, set the 40-hour 

work week and guaranteed ‘time-and-a-half’ overtime compensation for certain 

jobs

-- Federal employees were exempt from FLSA until 1974, when Congress enacted 

legislation to apply the FLSA to the federal sector

-- The FLSA as it pertains to the federal government protects employees from management misuse of overtime and seeks to ensure covered employees receive 

proper compensation. The FLSA requires federal agencies to exercise appropriate 

controls to ensure that only work for which the employer intends to make payment is performed.

-- While the Department of Labor has ultimate responsibility for overseeing FLSA 

developments and insuring all provisions of the law are properly implemented, 

the Office of Personnel Management (OPM) has responsibility for applying the 

FLSA to federal employees and preparing regulations that address the specific 

circumstances of federal employment

General Principles

- There are two types of positions under the FLSA: Exempt and Non-Exempt

-- Non-Exempt positions ARE covered by the provisions of FLSA and therefore 

entitled to the Act’s protections

-- Exempt positions ARE NOT covered by the provisions of FLSA. Employees in 

those positions can still work overtime and be compensated, but the rules applicable to them are different.
736 The Military Commander and the Law

-- The FLSA presumes that all employees are covered, unless the position meets 

the criteria for at least one of the Act’s exemptions. The three most-commonly 

encountered exemptions are:

--- Executive Exemption: Management personnel responsible for the hiring, firing, advancement, promotion, and directing the work of at least 2 full-time 

civilian employees

--- Administrative Exemption: Personnel whose work relates to the management or 

general business operations, and who exercise discretion and independent 

judgment

--- Professional Exemption: Personnel who perform work requiring advanced 

knowledge typically acquired by prolonged course of specialized intellectual 

instruction

-- FLSA exemption status is NOT the same as the Bargaining Unit status. FLSA 

exemption status is determined by the duties performed by the employee, while 

Bargaining Unit status is determined by the local agreement and regulations.

-- The best way to determine an employee’s FLSA status is to use his or her position 

description (PD) or Core Personnel Document. The FLSA exemption status (“N” 

for non-exempt or “E” for exempt) will typically be listed at the top of the front 

page along with other essential information about the position.

-- FLSA exemption status is determined by Air Force classifiers, with the expectation 

that the PD/Core Personnel Document reflects the duties actually being performed. Supervisors are responsible for certifying that the PD accurately reflects 

the duties performed.

- An agency that violates the FLSA’s overtime provisions may be liable to the employees affected for the amount of the unpaid overtime compensation, plus an additional 

equal amount as liquidated damages. If a claim for back pay is established, the claimant will be entitled to pay for a period of up to 2 years (3 years for a willful violation) 

from the date the claim was received, which is why it is important for managers and 

supervisors to keep an accurate account of the actual hours an employee has worked.
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 737

Differences in Treatment of FLSA Non-Exempt (Covered) Employees and Exempt 

Employees

- Non-Exempt Positions:

-- Must be compensated for all overtime (OT) hours for which the agency accepted 

the work

-- Must always be offered OT pay

--- For example, the employee cannot be compelled to accept compensatory 

time as payment for overtime hours worked

-- All OT is paid at 1 1⁄2 times the employee’s regular pay

-- OT work need not be approved in advance

--- For example, a non-exempt employee may file claim for overtime that is 

“suffered or permitted”

-- “Suffer or Permit OT” is a type of overtime applicable to those employees covered 

by the FLSA. Covered employees must be compensated for all hours of work they 

perform that is “suffered or permitted” to occur by management. Overtime work 

by FLSA non-exempt employees is “suffered or permitted” if:

--- The employee performs work for the agency’s benefit that was neither 

ordered nor approved in advance by management

--- Management is aware that the employee is performing the work, or had 

reason to believe that it was being performed

--- Management had an opportunity to prevent the work from being performed, 

but failed to act in a reasonable time to stop the employee from performing 

the work (e.g., telling employees to go home at the end of the day)

--- To be credited and paid for irregular and occasional overtime work, whether 

it is authorized and approved or “suffered and permitted” work, the employee 

must perform this work in excess of his or her basic forty-hour workweek
738 The Military Commander and the Law

- Exempt Positions:

-- Compensatory time can be compelled, if pay exceeds GS-10, step 10

-- One and half times salary OT pay is capped at GS-10 step 1 OT rate

-- OT MUST be approved in advance

Manager and Supervisor Responsibilities

Managers and supervisors have very specific and important responsibilities within the 

FLSA process.

- Management:

-- Responsibility to develop, apply, and communicate clear and consistent overtime 

policies that comply with the requirements of the FLSA

-- Ensure all supervisors know the exemption status of their employees, and train 

supervisors on how to treat exempt vs. non-exempt employees

-- Ensure retention of accurate records on employee hours worked for at least 3 

years

- Supervisors: 

-- Responsibility to understand and apply the appropriate overtime rules to all 

employees whether exempt or non-exempt. This is important so that supervisors 

can ensure they are complying with the provisions of the FLSA and so they can 

properly inform employees of their FLSA rights. 

--- Non-exempt employees have certain entitlements under FLSA and it is 

imperative that supervisors advise them of these rights

-- Supervisors should also work to control employees’ work hours

--- Supervisors must be aware of the hours employees are working, so that 

employees are only performing work for which the agency or office plans to 

compensate them

--- Supervisors should keep accurate records of actual hours worked by nonexempt employees 
CHAPTER FIFTEEN Civilian Personnel and Federal Labor Law 739

---- Such an account may be crucial if a non-exempt employee files an FLSA 

claim for uncompensated overtime hours worked 

---- Burden of proof is on management to prove that proper compensation 

was allocated. If the employee has better record keeping of his or her 

hours than that of management, the likelihood the agency will have to 

pay for that “uncompensated overtime” increases. 

-- Supervisors should know the exemption status of all employees and communicate the overtime policy and rules to all employees

References

Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219

5 C.F.R. Part 550

Pay Administration for the Fair Labor Standards Act, 5 C.F.R. pt. 551 
740 The Military Commander and the Law
741

Environmental Laws: Overview........................................................................................................742

Environmental Tort Claims.................................................................................................................745

Sovereign Immunity and Environmental Charges....................................................................747

Controls on Air Force Decision-Making: NEPA............................................................................750

Environmental Management System (EMS), Environmental Inspections, and 

ESOH Council...................................................................................................................................753

Interaction with OSHA.........................................................................................................................759

Environmental Enforcement Actions.............................................................................................765

Personal and Organizational Liability under Environmental Laws .....................................770

Media Relations and Environmental Concerns..........................................................................774

Cleanup of Contamination from Past Activities.........................................................................776

Natural and Cultural Resource Preservation Laws.....................................................................781

Encroachment Management............................................................................................................789

Encroachment and Testifying at Local Hearings........................................................................793

Clean Air Act............................................................................................................................................798

Clean Water Act and Safe Drinking Water Act.............................................................................803

Water Rights............................................................................................................................................807

Solid and Hazardous Wastes.............................................................................................................810

Control of Toxic Substances...............................................................................................................815

Environmental Law Overseas............................................................................................................818

Utility Law ................................................................................................................................................826

CHAPTER SIXTEEN: ENVIRONMENTAL LAW

16
742 The Military Commander and the Law

ENVIRONMENTAL LAWS: OVERVIEW

Federal, state, and local environmental laws and regulations are intended to protect 

human health and the environment. While carrying out this function, these laws and 

regulations frequently also limit commander options. Failure to comply with applicable 

environmental laws and regulations will frequently inhibit full mission accomplishment 

and can severely impact installation resources. Moreover, commanders can be held criminally liable for violations. Familiarization with this chapter is crucial to a commander’s 

ability to minimize negative impacts to the mission and to the environment.

Environmental Statutes 

- Federal statutes now cover virtually all major environmental issues

-- Exemptions from federal statutes and rules are rare because they usually require 

personal action by the President or the Secretary of Defense

-- Most major federal environmental statutes waive federal government immunity 

from state and local pollution control regulations (including permitting and procedural requirements) and substantive pollution control standards

--- Most statutes subject the Air Force to state and local enforcement

--- The Air Force is also subject to state and local fines and penalties for violations 

of requirements related to hazardous waste, underground storage tanks, 

drinking water, lead-based paint, and others

-- Most statutes subject Air Force personnel to criminal liability for violations of 

environmental laws and regulations

- Federal environmental statutes usually establish a joint federal-state system of 

pollution control. In addition, state authority allows delegation to local regulatory 

agencies.

-- The typical role of the federal government is to establish the basic pollution 

control standards and to ensure that the states achieve those standards

-- Most states have been delegated authority to establish standards for particular 

sources of pollution, integrate the individual controls into an overall plan to 

achieve the federal standards, and enforce controls on a daily basis
CHAPTER SIXTEEN Environmental Law 743

Enforcement Authority

- Three levels of enforcement authority typically apply:

-- U.S. Environmental Protection Agency (EPA): Retains authority to enforce when 

it has not delegated that authority to the relevant state or when it learns of 

violations not being prosecuted or otherwise dealt with by a delegated state

-- State or Local Enforcement Agencies: Have primary responsibility for taking 

administrative or judicial actions for most violations

-- Private Citizens: When federal, state, or local enforcement authorities have failed 

to abate violations, most environmental statutes allow private citizens to initiate 

civil enforcement proceedings in a federal district court

Assistance

- The base has a number of offices with expertise in environmental matters. These 

offices typically include civil engineering, legal/staff judge advocate (SJA), bioenvironmental engineering, medical, safety office, and others.

- Required meetings of the installation Environment, Safety and Occupational Health 

Council (ESOHC), which is normally chaired by the vice commander, will assist leadership in addressing environmental issues and instilling base-wide stewardship values

- The Military Commander and the Law (this book) is published every 2 years in hard 

copy and is also available online in a more frequently updated edition. This Chapter 

is a great place for commanders to start to understand complex base environmental 

matters.
744 The Military Commander and the Law

References

AFI 32-1067, Water and Fuel Systems (4 February 2015) 

AFI 32-7001, Environmental Management (16 April 2015), incorporating Change 1, 8 April 2016

AFI 32-7020, The Environmental Restoration Program (7 November 2014), incorporating Change 

1, 18 April 2016

AFI 32-7040, Air Quality Compliance and Resource Management (4 November 2014)

AFI 32-7042, Waste Management (7 November 2014)

AFI 32-7044, Storage Tank Environmental Compliance (18 August 2015), incorporating Change 1, 

22 April 2016

AFI 32-7047, Environmental Compliance, Release and Inspection Reporting (22 January 2015)

AFI 32-7061, The Environmental Impact Analysis Process (12 March 2003), certified current, 28 

March 2014

AFI 32-7063, Air Installations Compatible Use Zones Program (18 December 2015)

AFI 32-7064, Integrated Natural Resources Management (18 November 2014), incorporating 

Change 1, 22 February 2016

AFI 32-7065, Cultural Resources Management (19 November 2014)

AFI 32-7066, Environmental Baseline Surveys in Real Property Transactions (26 January 2015)

AFI 32-7086, Hazardous Materials Management (4 February 2015)
CHAPTER SIXTEEN Environmental Law 745

ENVIRONMENTAL TORT CLAIMS

Environmental tort claims, typically demanding large monetary payments, are based on 

allegations the Air Force has damaged property or human health as a result of base activities. The classic example results from on-base use of hazardous, but useful, chemicals 

which have migrated off-base because of a spill or cumulative use. Claims for asbestos 

and toxic mold exposure are also treated as environmental tort claims. Potential environmental claims should be brought to the attention of the staff judge advocate (SJA).

Statutory Authority

- Environmental tort claims are asserted against the Air Force under the Federal Tort 

Claims Act (FTCA) or the Military Claims Act (MCA). Generally, the FTCA applies within 

the continental United States (CONUS), and the MCA applies worldwide.

- These claims are distinct from other types of liability cases arising under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the 

Resource Conservation and Recovery Act (RCRA), and others acts. However, these 

tort claims may arise from the same set of facts and circumstances.

- Liability of the United States for environmental torts is determined in accordance 

with the law of the state where the alleged act(s) or omission(s) causing the damage 

occurred

- In addition to state law defenses to negligence, federal agencies can assert additional 

defenses such as “discretionary function”

Processing

- Environmental tort claims are submitted, usually to the SJA, using Standard Form 95, 

Claim for Damage, Injury, or Death

- In accordance with AFI 51-501, Tort Claims, bases receiving environmental tort claims 

will be responsible for investigating and processing those claims which arise in their 

assigned geographic area

- Unlike laws such as CERCLA and RCRA, environmental tort claims filed under the 

FTCA or MCA do not provide for personal liability against the installation commander

- Depending on the amount of the claim, environmental tort claims are paid by the 

installation or MAJCOM out of operations & maintenance (O&M) funds or out of the 

Department of Treasury’s Judgment Fund
746 The Military Commander and the Law

References

Military Claims Act, 10 U.S.C. §§ 2731–2740

The Federal Tort Claims Act, 28 U.S.C. § 1346(b)

28 U.S.C. §§ 2671–2680

28 C.F.R. Part 14

32 C.F.R. §§ 842.40–842.54

Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 

et seq.

Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.

AFI 51-501, Tort Claims (15 December 2005) 

Standard Form 95, Claim for Damage, Injury, or Death
CHAPTER SIXTEEN Environmental Law 747

SOVEREIGN IMMUNITY AND ENVIRONMENTAL CHARGES

The federal government, as a sovereign, is not subject to state, interstate, or local laws or 

to lawsuit by these entities. The only exception is when Congress expressly waives sovereign immunity. It is important to understand why some state and local environmental 

regulations apply to your base, while others do not. Complying with environmental 

regulations, when there is no waiver, may be a fiscal law violation. Additionally, failure 

to comply when there is a waiver could impact mission accomplishment and the bases’ 

budget.

Waivers of Sovereign Immunity

- Only Congress can waive sovereign immunity and it must do so “clearly and 

unequivocally”

- Waivers are strictly construed in favor of the United States, and entities (state, interstate, and local) cannot regulate federal facilities absent a clear, unequivocal waiver 

by Congress

- The following are not waivers: 

-- Executive orders

-- Federal regulations

-- Failure to object to a state requirement

-- Compliance agreements

-- Base commander agreements or actions

- Waivers of sovereign immunity are included in most of the major federal statutes 

regarding at least part of the statutory requirements (e.g., Clean Air Act (CAA), 

Resource Conservation and Recovery Act (RCRA)-waste management, RCRA-Underground Storage Tanks (USTs), Clean Water Act (CWA), and Safe Drinking Water Act 

(SDWA)). Consult other sections in this chapter regarding waivers in specific acts.
748 The Military Commander and the Law

Paying Bills to Nonfederal Regulators

- Waivers of sovereign immunity allow the Air Force to pay reasonable environmental fees (also referred to as “service charges”) and fines under a number of statutes, 

however, waivers do not allow the federal government to pay state and local taxes 

(with two exceptions below) or interest for late payments

-- Fees: Charges (often annual) for services provided by state or local governments 

in administering their environmental programs (e.g., fees for environmental permits, underground storage tank registration, and hazardous waste generation). 

Fees may be paid when there is an applicable waiver of sovereign immunity.

-- Fines/Penalties: Charges by regulators for failure to comply with environmental 

regulations or with permit terms. Again, fines are payable when there is an applicable waiver of sovereign immunity.

-- Taxes: Revenues collected (often annually) to provide for the general support 

of the entire community. Taxes are not payable, with two statutory exceptions.

--- Exception in 42 U.S.C. § 2021d(b)(1)(B), allows bases to pay taxes on low-level 

radioactive waste owned or generated by the federal government that is 

disposed of at a regional disposal facility or a non-federal disposal facility 

within a state that is not a member of a regional compact

--- Exception in 33 U.S.C. § 1323 (c)(1)(B) permits state or local authorities to 

assess reasonable service charges, including taxes, for payment or reimbursement of cost associated with stormwater management programs

-- Interest: Charges by regulators for failure to pay a fine, fee, or tax in a timely 

manner. Interest is never payable.

- Any person who uses appropriated funds for a purpose not authorized by Congress 

violates the Anti-Deficiency Act (ADA), 31 U.S.C. § 1341 (“limitations on expending 

and obligating amounts”), and may be subject to appropriate adverse action

Distinguishing Between Fees and Taxes—Always Consult the Staff Judge Advocate 

(SJA)

- Generally easy to determine whether a charge is a fine/penalty or interest, however, 

distinguishing between a fee and a tax is challenging. Always seek assistance from 

the SJA in making this determination.
CHAPTER SIXTEEN Environmental Law 749

- An existing test for determining whether a charge is a fee or a tax is incorporated in 

DoDI 4715.6, Environmental Compliance. A fee is not a tax if the charges:

-- Do not discriminate against Federal functions;

-- Are based on a fair approximation of use of the system; and

-- Are structured to produce revenues that will not exceed the total cost to the state 

of the benefits to be supplied

- However, there is some question whether the test above, known as the Massachusetts 

test (based upon the Supreme Court’s decision in Massachusetts v. U.S., 435 U.S. 444 

(1978)) should be used

-- The Comptroller General, in opinion B-306666, and some federal Courts of Appeal 

specifically reject the Massachusetts test in the context of federal immunity from 

state taxation

-- Any legal analysis of an environmental fee assessed by a state or local entity 

should consider the Comptroller General opinion as well as relevant decisions 

within the applicable circuit court

- Clearly, this is a complex analysis and should be accomplished by your SJA with 

assistance from the Regional Environmental Counsel and the Environmental Law 

Field Support Center. To achieve geographic consistency, environmental attorneys 

from other services may also be consulted.

References

31 U.S.C. § 1341

33 U.S.C. § 1323

42 U.S.C. § 2021

Massachusetts v. U.S., 435 U.S. 444 (1978)

Comp. Gen. B-306666, Matter of Forest Service-Surface Water Management Fees (5 June 2006) 

DoDI 4715.06, Environmental Compliance in the United States (4 May 2015)

DoD 7000.14-R vol. 10, ch. 6, Financial Management Regulation: Contract Payment Policy

(December 2015) 

AFI 51-301, Civil Litigation (20 June 2002)
750 The Military Commander and the Law

CONTROLS ON AIR FORCE DECISION-MAKING: NEPA

The National Environmental Policy Act (NEPA) requires federal agencies to evaluate environmental impacts as part of their overall planning and decision-making process. It also 

requires the public be informed of, and involved in, the decision-making process. Failure 

to properly follow NEPA planning may result in a court halting the project until the NEPA 

process is complete. This section is limited to NEPA procedural requirements within the 

jurisdiction of the United States and United States territories.

Process

- Within the Air Force, NEPA’s mandates are carried out through the Environmental 

Impact Analysis Process (EIAP). Before any final decision on a proposed action is 

made, the Air Force EIAP (found at 32 C.F.R. Part 989), requires the Air Force to:

-- Determine if a Categorical Exclusion (CATEX) applies. CATEXs define those 

categories of actions that do not individually or cumulatively have potential 

for significant effect on the environment, therefore, no further environmental 

analysis is necessary (see 32 C.F.R. Part 989, Appendix B, for a list of CATEXs)

-- Documentation: 

--- Normally, an AF Form 813, Request for Environmental Impact Analysis will be 

used to document a CATEX; or

--- Prepare an Environmental Assessment (EA) and a Finding of No Significant 

Impact (FONSI); or

--- Prepare an Environmental Impact Statement (EIS) and a Record of Decision 

(ROD)

- Within EIAP and in accordance with other requirements, certain unique circumstances 

(e.g., wetlands, floodplains) dictate additional documentation and MAJCOM approval

- Air Force must also complete EIAP for a private action essentially under Air Force 

“control” (e.g., actions requiring Air Force permission)

- Failure to follow EIAP can result in the action being delayed by litigation challenging 

the adequacy of the NEPA documentation
CHAPTER SIXTEEN Environmental Law 751

- Presence of classified information does not exempt the Air Force from its NEPA 

responsibilities, but it may modify the public’s right to participate in the NEPA process. 

Unclassified portions of the required analysis are shared with the public.

- Generally, the Air Force may not irretrievably commit money or resources for any 

proposed action until the EIAP is completed

Environmental Assessment (EA) or Environmental Impact Statement (EIS)

- If a proposed action does not lead to a CATEX, the Air Force must determine whether 

to prepare an EA or an EIS

- EAs and EISs are similar, in that they both consider alternatives and impacts, but the 

EIS is substantially more in-depth and has greater opportunities for public comment/

participation 

- An EIS is required for any “major federal action significantly affecting the quality of 

the human environment.” If the action does not rise to the level of an EIS, an EA is 

required to analyze appropriate alternatives to recommended courses of actions. 

-- “Major” refers to impact on the environment, not to the size of the project; thus, 

even a small project can qualify as “major”

-- Proponents consider whether environmental effects are significant based on 

context and intensity

-- A reviewing court’s focus will be whether the Air Force has taken a “hard look” 

and made a good faith assessment of potential impacts to the environment and 

whether reasonable alternatives were considered

-- The term “human environment” includes the natural and physical environment, 

as well as the relationship of people with that environment

--- A particularly important area for Air Force actions is the potential impacts 

on air quality

---- The Air Force is prohibited from supporting or taking any action affecting air quality (e.g., construction, weapon system bed-down, mission 

realignment, training exercise, etc.) which does not conform to a State 

Implementation Plan (SIP)
752 The Military Commander and the Law

---- This requirement is called “general conformity,” and requires the Air Force 

to demonstrate the proposed action will not hinder attainment or maintenance of air quality standards. “General conformity” is also discussed 

in the Clean Air Act section of this manual.

-- Executive Order 12898, Federal Actions to Address Environmental Justice in Minority 

Populations and Low-Income Populations, requires federal agencies to consider 

effects of proposed projects on minority and low-income populations

-- The heart of NEPA is the identification and analysis of alternatives. Furthermore, a 

range of reasonable alternatives satisfying the purpose and need of the proposed 

action must be analyzed, including a “No Action” alternative.

NEPA is a Procedural Law

- The Air Force must ensure environmental concerns are given “appropriate consideration,” but NEPA does not require the Air Force to rank environmental concerns 

above mission goals

- The Air Force must ensure all reasonable measures are taken to mitigate adverse 

environmental impacts associated with an action it has chosen to implement

-- An EIS or EA/FONSI should clearly identify mitigation measures

-- A ROD must state whether all practical means to avoid or minimize environmental harm from the alternative selected have been adopted or, if not, why they 

were not

-- If mitigation measures are proposed, proponents must prepare a mitigation plan 

and submit it to HQ USAF/A7CI for each FONSI or ROD containing mitigation 

measures

References

National Environmental Policy Act, 42 U.S.C. § 4321 et seq.

40 C.F.R. Parts 1500-1508

32 C.F.R. Part 989

Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations 

and Low-Income Populations (11 February 1994)

AFI 32-7061, The Environmental Impact Analysis Process (12 March 2003), certified current 

28 March 2014
CHAPTER SIXTEEN Environmental Law 753

ENVIRONMENTAL MANAGEMENT SYSTEM (EMS), 

ENVIRONMENTAL INSPECTIONS, AND ESOH COUNCIL

The Air Force environmental management system (EMS) is a framework for establishing 

processes and rules for managing environmental risk and should be thought of as a business perspective. The Air Force environmental inspection process assists commanders in 

assessing the overall performance of their installation’s EMS and identifying and tracking 

solutions to remedy environmental issues. The Environment, Safety, and Occupational 

Health (ESOH) Council is a steering group which establishes goals, monitors progress, 

and advises installation senior leadership. Inspections and ESOH Council activities are 

part of EMS.

EMS

- EMS incorporates business processes and business rules for managing and reducing 

environmental risk. All personnel have a role in their installation’s EMS.

-- EMS drives continuous improvement for all Air Force environmental programs

-- EMS is a management tool for focusing resources and accomplishing core goals 

of mission sustainability and readiness

-- Requires periodic evaluation of compliance with applicable requirements and 

conformance with the EMS model

-- EMS is based on the International Organization for Standardization (ISO) 14001, 

Environmental Management Systems, standard

-- A “Plan, Do, Check, Act” approach (see Figure 16.1 on page 757, Interaction of 

EMS, Environmental Inspections, and ESOH Council) is used in EMS

-- eDASH, an Internet-based document control system maintained by the Air Force 

Civil Engineer Center (AFCEC), implements EMS across the Air Force

--- eDASH can be accessed by the following link: https://cs1.eis.af.mil/sites/

edash/Lists/AFLOA%20Legal%20and%20Other%20Requirements/AllItems.

aspx

--- eDASH provides Air Force users with collaboration tools, workspaces, calendars, and web sites and enables assignment and tracking of tasks through 

workflow
754 The Military Commander and the Law

--- A component of eDASH, ANSR (Accessible Knowledge for Sustainable 

Resources), allows users to post environmental program questions which 

are answered by Air Force environmental Subject Matter Experts (SMEs), 

Program Managers, and Subject Matter Specialists

- EMS Contains a Number of Key Features Including:

-- Development of an installation Environmental Policy Statement

-- Identification of installation environmental risks (elements of organization activities, products, or services that interact with the environment)

-- Establishment of objectives and targets for significant risk(s) and inclusion of 

them in an Environmental Action Plan and/or Environmental Management Plan

-- Focus of resources on limiting installation negative impacts on the environment 

(reducing or eliminating environmental risks)

-- Assessment of environmental performance through the Air Force Inspection 

System and use of established tools to track and correct identified deficiencies

-- Use of management reviews to monitor performance and evaluate continual 

program and process improvements

Environmental Inspections

- The environmental inspection process provides commanders an assessment of the 

performance status of their EMS and identifies and tracks solutions to environmental 

issues

- Three different inspections, conducted in accordance with AFI 90-201, The Air Force 

Inspection Program, evaluate compliance with applicable requirements and conformance with the EMS model

-- Internal Shop-level Inspections: Performed as part of the Commander’s Inspection Program (CCIP)

--- Inspections are performed by shop-level supervisors or assessors at a frequency set by the Installation Commander

--- Self-Assessment Communicators: Easy-to-answer questions focused on daily 

operations at the shop level, are utilized
CHAPTER SIXTEEN Environmental Law 755

--- Findings, root cause analysis for each finding, and corrective actions are 

entered and updated in the installation Inspector General's (IG's) Management Internal Control Toolset (MICT)

-- Internal Program-level Inspections: Performed as a part of the CCIP and through 

compliance checks accomplished in accordance with DoD instructions

--- The CCIP part of the program-level inspections is performed at a frequency 

determined by the Installation Commander in accordance with AFI 90-201

--- MICT is utilized for these inspections to track findings, root causes, and corrective actions

--- Compliance checks under DoDI 4715.06, Environmental Compliance in the 

United States, and DoDI 4715.05, Environmental Compliance at Installations 

Outside the United States occur at least annually for each environmental 

protocol

--- Compliance checks utilize Internal Compliance Check, which is the Finding 

Tracker Tool on eDASH

--- Installation Environmental Branch Chief and/or EMS Coordinator ensure 

completion of internal compliance checks

-- External Management System Evaluations: Performed by the MAJCOM IG

--- Accomplished as a part of the MAJCOM IG Unit Effectiveness Inspection (UEI) 

Capstone Event, this is a one-week, on-site visit at the end of each UEI cycle

--- AFCEC provides a team of IG-certified inspectors to support the inspection, 

but MAJCOM functional SMEs may be augmented if necessary

--- Inspectors record deficiencies, recommended improvement areas, and 

strengths in the Inspector General Evaluation Management System

Release of Environmental Inspection Documents and Information

- Inspection documents and information must be managed and protected in accordance with applicable laws, regulations, and policies

-- The Freedom of Information Act (FOIA), 5 U.S.C. § 552; DoD 5400.7-R, DoD Freedom 

of Information Act Program; DoD 5400.7-R_AFMAN 33-302, Freedom of Information 

Act Program; and AFI 90-201 govern release of inspection records
756 The Military Commander and the Law

-- AFI 90-201, para. 2.18, addresses classification, marking, and release of IG inspection reports from CCIPs and MAJCOM UEI Capstone Events

- The Air Force Environmental Law Field Support Center (AFLOA/JACE) routinely assists 

installation and MAJCOM legal offices in the preparation of legal opinions regarding 

the release of inspection-related materials

ESOH Council

- The ESOH Council is the cornerstone of the Environment, Safety, and Occupational 

Health (ESOH) program and provides senior leadership involvement and direction 

at all levels of command

-- Assists leadership in meeting the requirement for senior leader involvement and 

commitment to ESOH matters

-- Annually, the council establishes goals, measures, objectives, and targets on 

ESOH matters

-- Provides ESOH guidance to subordinate and tenant organizations

-- At installation-level, the council oversees the environmental inspection process, 

including internal shop-level inspections and internal program-level inspections

-- A cross-functional composition at installation-level includes group commanders, 

each 2-letter office, and all tenant organizations

-- Chaired at installation-level by the wing commander unless delegated to the 

vice wing commander

- Ensures a systematic, interdisciplinary approach to ESOH and ensures core mission 

areas integrate this approach into planning, budgeting, and decision-making

- Also ensures progress toward ESOH sustainment goals and mission readiness, and it 

fosters a culture of compliance

- Meets at least semi-annually at all levels of command
CHAPTER SIXTEEN Environmental Law 757

Figure 16.1. Interaction of EMS, Environmental Inspections, and ESOH Council

PLAN

(Setting the Vision)

• Management Commitment 

and Policy

• Strategic and Operations Planning

• Goal Setting

• Performance Metrics

ACT

(Continually Improving)

• Management Review

• Overall Organization Performance

• Feedback to Policy and Goals

• Communication Systems

DO

(Create Infrastructure)

• Responsibilities/Accountabilities

• Action Planning

• Operational Control Procedures

• Hazard Identification & Control

• Training

CHECK

(Verification Systems)

• Prevention/Corrective Actions

• Acquisition/Contractor Checks

• Document Control

• Performance Monitoring Systems

• Information Management

EMS

ESOH

Council

Environmental

Inspections
758 The Military Commander and the Law

References

Freedom of Information Act, 5 U.S.C. § 552 (2015)

DoDI 4715.05, Environmental Compliance at Installations Outside the United States 

(1 November 2013)

DoDI 4715.06, Environmental Compliance in the United States (4 May 2015)

DoDI 4715.17, Environmental Management Systems (15 April 2009)

DoD 5400.7-R, DoD Freedom of Information Act Program (4 September 1998), incorporating 

Change 1, 11 April 2006

DoD 5400.7-R_AFMAN 33-302, Freedom of Information Act Program (21 October 2010), 

incorporating through Change 2, 22 January 2015

AFI 32-7001, Environmental Management (16 April 2015), incorporating Change 1, 8 April 2016"

AFI 90-201, The Air Force Inspection System (21 April 2015), incorporating Change 1, 

11 February 2016

AFI 90-801, Environment, Safety, and Occupational Health Councils (25 March 2005), certified 

current 29 December 2009"

ISO 14001:2015(E), Environmental Management Systems–Requirements with guidance for use 

(15 September 2015)
CHAPTER SIXTEEN Environmental Law 759

INTERACTION WITH OSHA

The federal Occupational Safety and Health Administration (OSHA) establishes occupational safety and health (OSH) standards to ensure safe and healthful conditions in 

workplaces throughout the United States. OSHA enforces its standards through inquiries, 

inspections, investigations, and issuing citations for violation of OSHA standards.

Applicability of OSHA standards

- Federal agencies must provide safe and healthful working conditions for employees

- Federal agencies must establish and maintain OSH programs that obey OSHA standards or approved alternate standards

-- Does not apply to workplaces that use or handle DoD equipment, systems, and 

operations that are unique to national defense mission

--- E.g., military aircraft, ships, early warning systems, tactical vehicles, field 

maneuvers, naval operations, and flight operations

-- “Military unique” workplaces and places where only military members work do 

not have to obey OSHA standards

- AFI 48-145, Occupational and Environmental Health Program, specifies Air Force occupational and environmental health standards that apply to all military and civilian 

personnel

- AFI 91-203, Air Force Consolidated Occupational Safety Instruction, provides Air Force 

industrial and ground safety policy that implements OSHA standards

Contact from OSHA

- There are four typical contacts a base may have with OSHA: 

-- Inquiry

-- Inspection

-- Investigation

-- Citation
760 The Military Commander and the Law

- Inquiry: Process that occurs in response to a complaint from a non-employee or when 

a complaint alleges a violation occurred, but there is no present danger to workers

-- OSHA Area Director asks agency to immediately investigate, determine if the 

complaint information is valid, and make any needed corrections or changes

-- Air Force normally has 5 working days to respond by letter or e-mail

-- OSHA will close the case if it is satisfied with the response (e.g., the hazard was 

or is being properly addressed)

- Inspection: On-site evaluation of workplace(s) that can be scheduled ahead of time 

or conducted unannounced under some circumstances

-- Inspections are triggered when OSHA receives a complaint from an employee or 

an employee’s representative, and OSHA believes a violation exists that exposes 

employees to risk of physical harm

-- Inspections are also triggered when OSHA receives a complaint that alleges 

imminent danger of death or serious injury exists

--- An inspection is not required if the OSHA Area Director believes there is no 

reasonable grounds that violation or hazard exists

-- Inspections can result if OSHA is not satisfied with the installation’s response to 

an inquiry

- Investigation: In-depth look into a fatality or catastrophe (defined as an incident 

resulting in hospitalization of three or more employees) caused by a workplace hazard

-- Goal of an investigation is to determine the cause of the incident, whether a 

violation of OSHA standards occurred, and any relationship between the violation 

and the incident

-- Air Force must investigate the incident and, upon request, provide OSHA with a 

report of the investigation’s findings

-- OSHA Area Director decides if OSHA will conduct an investigation of the incident

--- OSHA may conduct an independent investigation or participate in the Air 

Force’s investigation
CHAPTER SIXTEEN Environmental Law 761

- Citation: Is a Notice of Unsafe or Unhealthful Working Conditions (OSHA-2H form)

-- Issued by OSHA Compliance and Safety Health Officer (inspector) or OSHA Area 

Director

-- Notifies agency of violations of OSHA standards, alternate standards, and/or 29 

C.F.R. Part 1960

--- A copy of the citation must be posted at or near the location of each violation 

addressed in the citation

--- The copy must remain posted until the violation is abated or 3 working days, 

whichever is later

Responses to OSHA

- Inquiry and Citation: The Air Force reply should be responsive, respectful, timely, 

and sincere

-- Answer OSHA’s questions and address OSHA’s concerns

-- Don’t be argumentative or aggressive

-- If a violation occurred, specify what has been done—or will be done—to fix it 

and prevent a repeat problem

-- Express appreciation for OSHA’s concerns

-- Assure OSHA safe and healthy working conditions are priorities

-- Obey time limitations or request extensions

- Inspection and Investigation: During inspections and investigations, Air Force representatives should be cooperative, respectful, and interested

-- Be open; facilitate site visits, interviews, and document reviews

-- Don’t be argumentative or aggressive

-- Assure OSHA that safe and healthy working conditions are priorities

-- Provide escorts for inspectors and investigators
762 The Military Commander and the Law

-- Take pictures of whatever inspectors or investigators take pictures of and take 

samples of whatever OSHA samples

- Ensure the servicing legal office knows about and provides support regarding all 

OSHA contacts and responses

-- The Office of the Staff Judge Advocate (JA) can advise on OSHA processes

-- JA can ensure replies to OSHA are responsive and more likely to build trust than 

distrust

More on Citations

- Each specified violation normally will be categorized as willful, serious, or 

other-than-serious

-- Willful Violation: Exists when the employer knowingly failed to comply with a 

legal requirement or acted with plain indifference to employee safety

-- Serious Violation: Occurs when a workplace hazard could cause an accident or 

illness that would most likely result in death or serious physical harm and the 

employer knew of the hazard or could have known of the hazard

-- Other-than-serious Violation: Occurs when a hazardous condition exists but 

would most likely not cause death or serious physical harm

- A repeated violation exists where a facility has been cited previously for the same or 

a substantially similar condition within the past 3 years

- Within 15 days after receiving a citation, the installation may request an informal 

conference with the OSHA Area Director to:

-- Get better explanation of cited violations

-- Get better understanding of the standards cited

-- Discuss ways to correct violations

-- Discuss problems with abatement dates set out in a citation

-- Resolve disputed violations
CHAPTER SIXTEEN Environmental Law 763

- An installation can appeal a citation or a failure of an informal conference to resolve 

issues

-- Appeal is submitted in writing to OSHA’s Office of Federal Agency Programs 

(OFAP)

-- There is no judicial review of OFAP rulings

- OSHA cannot impose fines or penalties for violations by DoD Components

-- Federal agencies (except the United States Postal Service) do not pay fines or 

penalties for their violations of OSHA standards

-- Despite the fact fines and penalties cannot be imposed, installations may still be 

found to be in violation of OSHA standards

State OSH Regulations and Regulators

- Generally speaking, state OSH laws and regulations do not apply to Air Force 

workplaces

-- However, consult your servicing legal office if an issue arises

--- State OSH requirements may apply to contract workers in an Air Force 

workplace located on property over which the state exercises regulatory 

jurisdiction (known as concurrent or proprietary jurisdiction)

- Air Force contractors are subject to federal and state OSH requirements

-- However, consult JA to determine if contractors are working solely on installation 

property over which exclusive federal jurisdiction exits

--- Lack of state regulatory jurisdiction may impact the applicability of state OSH 

requirements to contract workers

- Cooperate with state OSH authorities who are inspecting or investigating contractor 

workplaces

Bottom Line

- Contact your servicing legal office for advice about addressing issues involving state 

OSH requirements and regulators
764 The Military Commander and the Law

References

Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-78

29 C.F.R. Part 1960

29 C.F.R. Part 1975

OSHA Instruction CPL 02-00-159, Field Operations Manual (FOM) (1 October 2015)

DoDD 4715.1E, Environment, Safety, and Occupational Health (ESOH) (19 March 2005)

DoDI 6055.01, DoD Safety and Occupational Health (SOH) Program (14 October 2014)

DoDI 6055.05, Occupational and Environmental Health (OEH) (11 November 2008)

AFMAN 48-146, Occupational & Environmental Health Program Management (9 October 2012), 

incorporating Change 1, 5 December 2012

AFPD 90-8, Environment, Safety & Occupational Health Management and Risk Management

(2 February 2012)

AFPD 91-2, Safety Programs (24 July 2012)

AFI 48-145, Occupational and Environmental Health Program (22 July 2014), incorporating 

Change 1, 27 August 2015

AFI 90-801, Environment, Safety, and Occupational Health Councils (25 March 2005), certified 

current through 29 December 2009

AFI 91-203, Air Force Consolidated Occupational Safety Instruction (15 June 2012), including 

AFI91-203_AFGM2015-04, 17 September 2015
CHAPTER SIXTEEN Environmental Law 765

ENVIRONMENTAL ENFORCEMENT ACTIONS

Environmental regulators issue enforcement actions to notify bases they have violated 

environmental requirements, what must be done to achieve compliance, and whether 

the base will be fined/penalized for the violation. Enforcement actions can be serious 

and costly, and trigger various immediate reporting requirements.

Receiving an Enforcement Action

- Enforcement actions may be issued by various regulatory agencies at all levels:

-- Federal (e.g., Environment Protection Agency, U.S. Army Corps of Engineers, 

Occupational Safety and Health Administration, etc.)

-- State (e.g., Texas Commission on Environmental Quality, Massachusetts Department of Environmental Protection, South Carolina Department of Health and 

Environmental Control, etc.)

-- Local (e.g., Hillsborough County Environmental Protection Commission, Stormwater Management Division of the Prince George’s County Department of the 

Environment, etc.)

- Enforcement actions are sometimes called EAs, notices of violation (NOV), notices of 

non-compliance (NON), notices of deficiency (NOD), compliance agreements (CA), 

or consent orders (CO)

- Enforcement actions are often issued after an inspection, with or without notice

- Enforcement actions can be issued without an inspection based upon reports filed 

with the regulator (e.g., effluent limitations, spills, etc.). Also, a failure to report can 

result in an enforcement action.

- Depending on the nature of the violation, fines and penalties may be assessed

- Regulators may seek injunctions to shut down operations

- Violations can lead to criminal penalties, such as imprisonment and fines

- Violations can lead to more frequent inspections by regulators

- Installations may be issued enforcement actions for acts of non-Air Force personnel 

such as AAFES employees, contractor employees, property lessees, other agency 

personnel, etc.
766 The Military Commander and the Law

Reporting & Tracking Enforcement Actions

- The base Civil Engineer, Installation Management Flight (CEI) must timely notify the 

installation commander, the installation staff judge advocate (SJA), and AFCEC/CZ of 

any written notice of a non-compliance by a regulatory agency. Overseas locations 

notify AFCEC/CF and Air National Guard installations notify NGB/A7AN.

- Base CEIs shall report all written notices, e-mail messages, field citations, and other 

correspondence from regulatory agencies pertaining to non-compliance with applicable environmental requirements within one business day through the Enforcement 

Actions, Spills and Inspections (EASI) database. Additionally, base CEIs must:

-- Upload the written enforcement action and additional data into the database

-- Provide real-time status updates until the enforcement action is officially closed

- The base SJA or representative shall notify the Regional Compliance Officer and the 

base CEI within one business day of receiving any notice of a non-compliance or 

obtaining knowledge of any potential non-compliance. The base SJA should copy the 

MAJCOM Environmental Liaison Officer and the AFLOA/JACE-Field Support Center 

on the notification.

- Bioenvironmental engineers (BEs) must notify MAJCOM/BEs of any violation of 

potable water quality sampling within one business day and immediately implement 

public notification procedures required by the regulator

- High visibility enforcement actions for each base are tracked in a monthly report for 

the Deputy Assistant Secretary of the Air Force (Environment, Safety and Infrastructure ) (SAF/IEE)

- SAF/IEE reports enforcement action data to the Under Secretary of Defense (Acquisition, Technology and Logistics) for inclusion in the Defense Environmental Programs 

Annual Report to Congress

Responding to an Enforcement Action

- Respond in a timely manner, in writing, to the regulator who issued the enforcement 

action. Some may include a required response date. Continue good communication 

with the regulator throughout the process.

- Cooperate with the regulator. Professional, responsive, and considerate interactions help the base build and continue good relationships with regulators. Your 
CHAPTER SIXTEEN Environmental Law 767

relationship could impact how much you must do to resolve the enforcement action 

or how the regulator treats you in the future.

- Do not assume the base is subject to the rule or law you allegedly violated or that you 

are required to do what the regulator is telling you to do (like pay a fine or penalty). 

You must seek legal advice from your SJA to determine the validity of the EA.

- Regulators may propose a compliance agreement or other early resolution of the 

violation. Do not agree to anything without coordinating with your SJA and AFLOA/

JACE.

Enforcement Action Process

- An Environmental Protection Agency (EPA) “complaint” triggers a very formal administrative process

-- The base MUST file an answer within 20 days

-- Failure to respond to any given allegation is an admission of its truth

-- Ensure a coordinated effort is made to preserve evidence and document site 

conditions, as it may be some time before the hearing

-- Settlement efforts should be pursued while the hearing is pending

- The base should follow state or local rules if it receives an enforcement action from 

those agencies

-- Usually a written response is required within 30 days of receipt, but it may be less

-- The base should take corrective action as soon as practicable

-- Informal resolution may be an option except in Clean Air Act cases, and may 

require coordination with AFLOA/JACE, SAF/GCN, SAF/IEE, and the Department 

of Justice (DOJ) prior to negotiation

-- Civil fines or penalties assessed as part of an enforcement action normally are 

the funding responsibility of the installation. Payment of fines or penalties must 

be approved by the AFLOA/JACE Division Chief a minimum of 10 business days 

prior to payment.
768 The Military Commander and the Law

Avoiding Enforcement Actions in the Future

- Enforcement actions are not a foregone conclusion. Attention to certain details may 

avoid violations.

- Stress the importance to unit personnel of complying with all environmental and 

safety instructions (e.g., AFIs, DoD regulations, permits, material safety data sheets 

(MSDS), etc.)

- Be prepared for inspections by regulators

-- Conduct regular self-inspections

-- Know your weak areas

-- Complete the “easy fixes;” do not wait to be directed

-- “Neatness” in environmental operations and in record-keeping really does count

-- Have a no-notice inspection response plan ready to activate, and exercise it

-- Select and prepare a knowledgeable and professional escort team to respond 

and accompany inspectors during even no-notice inspections and during nonduty hours

-- Treat environmental inspections seriously and inspectors respectfully

-- It is typical practice to allow regulators/inspectors to come onto the installation 

to conduct inspections. If the base is not subject to regulation by the agency 

requesting admittance, call the SJA for assistance.

-- While you may need to verify and vet inspectors to ensure installation security, 

be courteous and cooperative. You do not want to irritate them before they get 

started!

-- Know the areas most likely to produce violations:

--- Hazardous waste management plans

--- Personnel training records
CHAPTER SIXTEEN Environmental Law 769

--- Documentation of “cradle-to-grave” management of hazardous waste, to 

include return manifests showing wastes destined for disposal sites actually 

arrived

--- Labeling and condition of hazardous waste barrels

--- Contingency plans and emergency procedures

--- Inconsistencies between air and water discharge monitoring reports and 

actual permit limitations

Bottom Line

- Preparation is the key to avoiding enforcement actions

- Prompt, cooperative response is the key to resolving enforcement actions

- Consult with the base SJA , CEI, and BE immediately upon receiving an enforcement 

action and before signing anything

References

AFI 32-7047, Environmental Compliance, Release and Inspection Reporting (22 January 2015)

AFI 51-301, Civil Litigation (20 June 2002)
770 The Military Commander and the Law

PERSONAL AND ORGANIZATIONAL LIABILITY UNDER 

ENVIRONMENTAL LAWS

Individual employees, as well as the Air Force itself, may be held liable for violating 

environmental laws. While the Air Force is subject to civil and administrative liability, 

individuals may also be held criminally liable in their personal capacities.

Environmental Statutes

- Major environmental statutes such as the Clean Air Act, Clean Water Act, Resource 

Conservation and Recovery Act, and Comprehensive Environmental Response, Compensation, and Liability Act, either contain immunity provisions for federal employees 

acting “within the scope of their employment,” or have been held by courts to grant 

such immunity

- Immunity does not apply for violations of environmental statutes when individual’s 

actions are not considered “within the scope of employment" 

-- This generally occurs when an employee knowingly or willfully violates the law 

or has wanton disregard of the law or public safety

-- In such cases, immunity only applies to the United States, and not the employee

- Most statutes authorize the enforcement of civil or criminal fines, penalties, or fees 

when an organization or individual violates the statute

- Most statutes also allow the Environmental Protection Agency (EPA) to delegate 

its civil and criminal enforcement authority to qualified states as long as the state 

requirements are at least as stringent as federal requirements

Commander/Leadership Liability

- Direct participation in the violation of an environmental statute is not required for a 

commander or leader to be subject to prosecution

- Under the “responsible corporate officer doctrine,” supervisors may be criminally 

liable for the acts of subordinates despite a lack of knowledge regarding the specific 

violations

- By not acting promptly to correct an environmental violation, or circumstances leading to such violations, a commander or leader may also be subject to prosecution
CHAPTER SIXTEEN Environmental Law 771

- If a violation of an environmental law or regulation occurs, immediately consult the 

base civil engineer (CE) and the staff judge advocate (SJA). It is important to notify 

the regulator to establish good faith in the compliance resolution process.

Individual Civil Liability

- Department of Justice (DOJ) representation may be available to an individual who 

commits a violation while acting “within the scope of employment”

- Representation is not automatic. The individual must submit a written request to DOJ, 

and DOJ will determine whether it is in the interest of the United States to provide 

representation.

- If an individual is not represented by DOJ, they must obtain their own attorney. In 

these situations, attorney’s fees are the responsibility of the individual.

- If DOJ does represent the individual, often, the United States is substituted for the 

individual as the defendant. In these cases, the individual is released from personal 

liability.

Individual Criminal Liability

- Every major environmental law has criminal provisions that can be applied individually 

to active duty members, reservists, guardsmen, civilian personnel, and contractors

- Individual criminal liability generally applies to knowing or willful violations or wanton disregard of the law or public safety. In some cases, negligence can form the 

basis for criminal charges. In both situations, the individual is considered to be acting 

“outside the scope of employment,” and is not immune from prosecution or provided 

a DOJ defense counsel.

- Possible sanctions resulting from criminal conviction include monetary fines and jail

- Military members may also be subject to UCMJ prosecution; however, they are 

entitled to a military defense counsel

- In 1990, an Army SES-4, GS-15, and GS-14 were all found guilty of improperly storing 

and disposing hazardous wastes in knowing violation of the Resource Conservation 

and Recovery Act (RCRA) and sentenced to three years of probation each

-- In this case, “knowing” meant the senior employees were aware subordinate 

employees were improperly disposing of harmful substances. The prosecutor did 
772 The Military Commander and the Law

not have to show the senior employees knew the substances were “hazardous 

wastes” (as defined under the regulation), or that the disposal violated the law.

-- DOJ did not provide representation and forbade the Army from doing so. Attorney’s fees reached $108,000 for each defendant.

- There have been other criminal prosecutions of military members and civilian 

employees, with the majority of the prosecutions resulting in convictions

-- For example, the manager of an Army wastewater treatment plant who was convicted of nine felony counts for violating a permit and falsifying reports received 

an eight-month jail sentence

-- A Navy fuels division director repeatedly instructed subordinates to pump 

fuels through a line he knew would leak. He was sentenced to ten months of 

confinement.

-- An Airman was convicted by court-martial of dereliction of duty after he caused 

an overflow of jet fuel and attempted to conceal his mistake. He was sentenced 

to a one-month restriction to base and a reprimand.

- In addition to prosecution by DOJ or under the UCMJ, individuals may be prosecuted 

by states under state law

- As discussed earlier, supervisors may be held liable for the actions of their employees 

as well as their own actions. Factors DOJ considers in deciding whether to prosecute 

include:

-- Voluntary disclosure of violation before regulators discover it

-- Cooperation with regulators

-- Use of a good faith self-auditing program

-- Internal disciplinary action taken

-- Subsequent compliance efforts
CHAPTER SIXTEEN Environmental Law 773

Organizational Liability

- Regulators assessing administrative fines and penalties also enforce those fines and 

penalties

- A civil penalty is imposed through a court order

- Bases should never pay fines and penalties without consulting with their staff judge 

advocate. If sovereign immunity has not been waived by Congress for payment of 

particular fines or penalties, payment would violate fiscal law.

- Negotiations over environmental enforcement actions must be coordinated with 

AFLOA/JACE (generally the Regional Environmental Counsel). Any resolution involving the payment of a fine or penalty or a request for a supplemental environmental 

project (SEP) must be approved by the AFLOA/JACE Division Chief.

- Base fines and penalties must be paid out of base Operational & Maintenance (O&M) 

Funds

References

United States v. Carr, 880 F.2d 1550 (2d Cir. 1989)

Meyer v. United States Coast Guard, 644 F. Supp. 221 (E.D.N.C. 1986)

AFI 51-301, Civil Litigation (20 June 2002)

AFI 65-601, vol 1, Budget Guidance and Procedures (16 August 2012), incorporating Change 1, 29 

July 2015, including AFI65-601V1_AFGM2016-01, 16 May 2016

SAF/IEE, Air Force Policy on Payment of Fines and Penalties for Violations of the Clean Air Act

(17 July 2002)
774 The Military Commander and the Law

MEDIA RELATIONS AND ENVIRONMENTAL CONCERNS

The Air Force develops public engagement programs to build sustained public understanding and trust and support for Air Force missions and people. Public Affairs (PA) 

activities are to inform and include audiences during critical decision-making windows, 

and to communicate the Air Force’s commitment to environmental excellence. Major 

areas of PA involvement are discussed below.

Environmental Impact Analysis Process (EIAP) PA Responsibilities

- Ensure all PA aspects of EIAP actions are conducted in accordance with 32 C.F.R. Part 

989 of the Code of Federal Regulations, and with AFI 35-108, Environmental Public 

Affairs

- Review and clear environmental documents in accordance with AFI 35-101, Public 

Affairs Responsibilities and Management and AFI 35-108, prior to public release

- Assist Air Force judge advocates in planning and conducting public hearings

- Advise the Environmental Planning Function (EPF) and the action proponent on PA 

activities on proposed actions and reviewing environmental documents for public 

involvement issues

- Advise the EPF of issues and competing interests that should be addressed in the 

EIS or EA

- Assist in preparation of and attending scoping and other public meetings or media 

sessions on environmental issues

- Prepare, coordinating, and distributing news releases and other public information 

materials related to the proposal and associated EIAP documents

- Notify the media (television, radio, newspaper) and purchasing advertisements when 

newspapers will not run notices free of charge. The project proponent will fund the 

required advertisements.

- Determine and ensure Security and Policy Review requirements are met for all information proposed for public release (see AFI 35-102, Security and Policy Review Process)
CHAPTER SIXTEEN Environmental Law 775

Installation Restoration Program (IRP) PA Responsibilities

- Serve as the focal point for PA aspects of proposed IRP actions

- Advise on the PA aspects of the base’s development, participation in, and support of 

the Restoration Advisory Board, a community based advisory board

- Ensure all concerned community parties are in the communication channel

- Prepare an IRP community relations plan and announcing the availability and location of information repositories (often called the Administrative Record)

Air Installation Compatible Use Zone (AICUZ) Program PA Involvement

- Base Community Planner (BCP) generally manages the AICUZ program. PA assists 

the BCP in preparing for public meetings.

- PA will handle noise complaints directly and provide timely, responsive, and factual 

answers to maintain good media and community relations. PA will refer all claims for 

damages to the base legal office.

References

32 C.F.R. Part 989

AFI 35-101, Public Affairs Responsibilities and Management (12 January 2016)

AFI 35-102, Security and Policy Review Process (4 May 2016)

AFI 35-108, Environmental Public Affairs (14 July 2015)
776 The Military Commander and the Law

CLEANUP OF CONTAMINATION FROM PAST ACTIVITIES

The Air Force has used—and continues to use—a number of hazardous and toxic substances. There are instances in which those substances have been released to the environment, resulting in contamination or otherwise posing a threat to human health. Several 

laws provide a framework for addressing these releases, apportioning the costs for the 

cleanup, and protecting human health from the released contaminants.

Comprehensive Environmental Response, Compensation, and Liability Act 

(CERCLA) 

- Also known as “Superfund,” CERCLA provides a means of and process for investigating 

and responding to releases of hazardous substances into the environment, assessing 

parties responsible for such releases, and authorizing the Environmental Protection 

Agency (EPA) to order those parties to clean up the contamination. The law can also 

be used to force responsible parties to reimburse the Superfund for cleanup costs 

expended by the United States.

- CERCLA establishes “strict” liability for (1) current owners and operators of facilities 

where hazardous substances are released; (2) owners and operators of facilities at the 

time the hazardous substances were disposed; (3) persons who arranged for disposal 

or treatment of such substances; and (4) persons who accepted such substances for 

treatment or disposal

-- Most courts have ruled any responsible party can be required to pay the total cost 

of cleanup, regardless of the amount a liable party contributed to the contamination; however, responsible parties can seek cost recovery and contribution from 

other responsible parties

-- Responsible parties are also liable under CERCLA for damages assessed for injury 

to, destruction of, or loss of natural resources. The definition of natural resources 

is broad in scope (e.g., land, wildlife, fish, biota, air, water, groundwater, drinking 

water supplies), though it is limited to those resources owned, held in trust, or 

otherwise controlled by a federal or state government agency or an Indian tribe, 

thus excluding damages to private property.

- CERCLA’s waiver of sovereign immunity subjects the Air Force to CERCLA substantive, 

procedural, and liability requirements

- Primary EPA regulations implementing CERCLA are contained in the National Contingency Plan (NCP) in 40 C.F.R. Part 302

-- 40 C.F.R. Part 302 lists hazardous substances subject to CERCLA
CHAPTER SIXTEEN Environmental Law 777

-- EPA has also issued numerous guidance documents further implementing CERCLA; however these are not legally binding

- For releases at or migrating from Air Force facilities, the President has designated the 

Air Force as lead agency authority to investigate, and then plan, select, and implement response actions, to be exercised consistent with CERCLA

- CERCLA provides for local, state, and federal (usually EPA) regulator involvement in 

DoD cleanup

- CERCLA and the NCP require extensive public participation opportunities throughout 

the response process, including the creation of a publicly accessible administrative 

record and information repository

- CERCLA Response Action Stages Include:

-- Discovery of release

-- Removal evaluation and action—immediate or short term actions to address 

imminent and substantial endangerment or other risks that warrant a relatively 

prompt action

-- Preliminary assessment and site inspection—to determine the basic nature of 

the release and if further investigation or action is necessary

-- Remedial investigation—to determine the nature and extent of contamination 

and determine whether the release constitutes an unacceptable risk to human 

health or the environment so as to necessitate remedial action

-- Feasibility study—develops and assesses alternative remedies to permanently 

address site risks

-- Proposed plan—to present remedial alternatives assessed and rationale for the 

preferred alternative, and to obtain regulator and public comment

-- Record of decision—the formal decision selecting the cleanup method to be 

implemented

-- Remedy implementation/execution—includes remedial design, remedial action, 

operation and maintenance (usually monitoring), remedy completion, and 

closeout
778 The Military Commander and the Law

National Priorities List (NPL)

-- The EPA evaluates DoD facilities for possible placement on the NPL, which is a 

list of the most seriously contaminated sites

-- For sites on the NPL, CERCLA requires the Air Force to enter into Federal Facility 

Agreements (FFAs) with EPA; states are encouraged to sign FFAs

--- In 1988, to implement the FFA requirement, DoD and EPA agreed on model 

language provisions, which were last revised in 2009. Deviation from the 

model is not permitted without approval from SAF/IE and DoD.

-- For sites not on the NPL, the state provides the primary regulatory oversight

Defense Environmental Restoration Program (DERP)

- Through DERP, Congress granted DoD complementary authority under CERCLA to 

administer an environmental restoration program at DoD facilities

- Response actions under DERP must be consistent with, and in accordance with, 

CERCLA

-- In addition to CERCLA response actions, Congress authorized DoD to correct 

other environmental damage that may present an imminent and substantial 

endangerment to public health or the environment. This authority and DERP, 10 

U.S.C. § 2710, are used by DoD to conduct military munitions clean-ups.

-- DERP requires the restoration program be conducted in consultation with EPA 

and requires notice and opportunity to comment be provided to EPA and state 

and local regulators on most restoration phases

-- In recognition of the importance of public involvement at military installations, 

DERP requires, where practicable, installations form restoration advisory boards 

(RABs)

--- The RAB is composed of members from the local community and representatives from DoD, the state, and EPA, as appropriate. Community members 

selected for membership should reflect the diverse interests within the local 

community.

--- The RAB provides an expanded opportunity for ongoing community input 

and participation in all phases of installation restoration activities, but not 

actual decision-making
CHAPTER SIXTEEN Environmental Law 779

--- Under a DERP program known as the Defense State Memorandum of Agreement (DSMOA), DoD funds state services that assist DoD in the conduct of 

DERP, to include RAB participation, review, and comments on restoration 

documents

Third Party Site (TPS) Program

- The Air Force’s TPS program resolves CERCLA claims by EPA, states, and private parties 

against the Air Force resulting from Air Force disposal of hazardous substances and 

waste at off-base properties not owned or operated by the federal government (now 

or in the past)

- AFLOA/JACE determines the Air Force’s share, if any, of the hazardous substances 

disposed of at the site, and negotiates settlements of the Air Force liability based 

upon the Air Force’s allocated share of the total cleanup cost for the site

- In virtually all cases, settlements of Air Force liabilities are paid by the Department 

of Justice from the Judgment Fund, not from Air Force funds

Affirmative Cost Recovery (ACR) Program

- Under CERCLA, DoD agencies may affirmatively recover the costs expended by DoD 

to clean up hazardous substances released onto DoD property by contractors and 

other non-federal entities, including costs for study, sampling, analysis, monitoring 

and surveying programs, and other planning and engineering services

- Base personnel should alert their Air Force Civil Engineer Center (AFCEC) and Regional 

Counsel Office counterparts where there is a potential cost recovery action against 

a third party

Resource Conservation and Recovery Act (RCRA) Corrective Action

- RCRA establishes federal cradle-to-grave requirements for the management, storage, 

treatment, and disposal of hazardous waste. Most states are authorized to administer the program in lieu of EPA under state laws that are equivalent and at least as 

stringent and broad in scope as RCRA.

- Facilities that store hazardous waste over 90 days, treat, or dispose of hazardous waste 

MUST HAVE a Treatment, Storage, and Disposal permit, which contains requirements 

for corrective action to address release of hazardous wastes and constituents into 

the environment
780 The Military Commander and the Law

-- If your installation is considering obtaining either a new RCRA permit, or renewing a lapsed permit, consult with both CE and JA about the corrective action 

implications for the installation before initiating the permit process

-- Where corrective action is concerned, be aware of the challenge posed by pesticides (often applied to the foundation of the home during construction) if a 

residential construction project is planned

--- Plan on managing the pesticide-tainted soil as a potentially hazardous waste

--- Do not assume that because the pesticide was applied legally, the contaminated soil is not hazardous

- RCRA corrective action requirements largely parallel CERCLA, while terminology for 

cleanup phases differ

References

Defense Environmental Restoration Program, 10 U.S.C. §§ 2701 et seq.

Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.

Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 

et seq.

40 C.F.R. Part 300

40 C.F.R. Parts 260-282

Executive Order 12580, Superfund Implementation (23 January 1987)

AFI 32-7020, Environmental Restoration Program (7 November 2014)

AFI 32-7042, Waste Management (7 November 2014)

DoDM 4715.20, Defense Environmental Restoration Program (DERP) Management

(9 March 2012)
CHAPTER SIXTEEN Environmental Law 781

NATURAL AND CULTURAL RESOURCE 

PRESERVATION LAWS

Federal law requires agencies to preserve and protect natural and cultural resources, 

and federal statutes contain both substantive and procedural requirements. Consultation required by these laws provides information that is essential to the Environmental 

Impact Analysis Process (EIAP) in identifying, evaluating, and mitigating adverse impacts. 

Mitigation measures developed through consultation are incorporated into National 

Environmental Policy Act (NEPA) decision documents. Failure to comply with consultation 

requirements may indicate that the Air Force has not satisfactorily completed EIAP.

Natural Resources Conservation 

- Sikes Act: Requires each installation, in cooperation with the United States Fish 

and Wildlife Service (USFWS) and the appropriate state fish and wildlife agency, to 

develop an Integrated Natural Resources Management Plan (INRMP)

-- These detailed plans are the principal tool for managing military installation 

natural resources, and they operate as an agreement between the parties on how 

natural resource conservation needs will be integrated with military requirements

-- Chapter 3 of AFI 32-7064, Integrated National Resources Management, contains 

guidance for implementing INRMPs in the Air Force

-- Installations are open to the public for use of natural resources (hunting, fishing, 

etc.) subject to safety and security requirements

-- The USFWS will not designate any DoD land as “critical habitat” if that land is 

addressed in an INRMP and the INRMP provides a benefit to threatened or endangered species that inhabit it

- Endangered Species Act (ESA): Requires federal agencies to ensure that their actions 

are not likely to jeopardize the continued existence of any threatened or endangered 

(T&E) species, or to destroy or adversely modify their critical habitat

-- T&E species are those that are identified on a list published by USFWS (for land 

species) and the National Marine Fisheries Service (NMFS) (for aquatic species). 

The animal list is found at 50 C.F.R. § 17.11; the plant list at 50 C.F.R. § 17.12

-- Protections afforded threatened species are similar to the protections afforded 

endangered species
782 The Military Commander and the Law

- Migratory Bird Treaty Act (MBTA): Prohibits intentional killing of migratory birds 

without a permit

-- No permit is necessary for the unintentional killing of migratory birds during 

military readiness activities

-- DoD has a memorandum of understanding (MOU) with USFWS covering conservation measures.

-- The MBTA does not prohibit harassment of migratory birds. AFPAM 91-212, Bird/

Wildlife Aircraft Strike Hazard (BASH) Management Techniques, contains recommended methods. If harassment is insufficient to reduce risk, killing of migratory 

birds must be done in accordance with a depredation permit issued by USFWS.

Consultation Requirements for Threatened or Endangered Species

- ESA Section 7 requires federal agencies to consult with the USFWS (for land species) and/or NMFS (for aquatic species) whenever an action may affect T&E species. 

Consultation procedures are set out in 50 C.F.R. Part 402 and the USFWS/NMFS’s 

Endangered Species Consultation Handbook (1998).

- Consultation is not required when no T&E species is present in the area where the 

proposed action is taking place. For these actions, the Air Force makes a “no effect” 

determination.

- Consultation may be required even when a proposed action would otherwise qualify 

for an EIAP categorical exclusion

- Consultation is required when a T&E species is present in the area where the proposed 

action will take place

-- Not Likely to Adversely Affect: When the Air Force determines that the action 

“is not likely to adversely affect” a T&E species, it may use informal consultation 

procedures (telephone calls, e-mail, letters, etc.). Consultation is complete when 

the USFWS and/or NMFS concur in writing with the Air Force’s determination.

-- Is Likely to Adversely Affect: When the Air Force determines that the action “is 

likely to adversely affect” a T&E species, it must use the formal consultation procedures set forth in 50 C.F.R. § 402.14. This will typically require a written analysis 

known as a Biological Evaluation or Biological Assessment (BA). Consultation is 

complete when the USFWS and/or NMFS issue its written Biological Opinion (BO). 

This is known as a “no jeopardy opinion.”
CHAPTER SIXTEEN Environmental Law 783

--- The BO will contain an Incidental Take Statement (ITS) that protects Air Force 

personnel from criminal prosecution if the action harms T&E animal species. 

In addition, the BO contains mandatory “reasonable and prudent measures” 

and “terms and conditions” that the Air Force must take to protect the species.

--- Plants receive less protection under the ESA; the BO may contain voluntary 

recommendations to protect the species

- Jeopardy Opinion: Although rare, USFWS or NMFS may find that an agency’s action 

will jeopardize the continued existence of a T&E species, or destroy or adversely 

modify its critical habitat. This is known as a “jeopardy” opinion. In these cases, USFWS 

or NMFS will recommend “reasonable and prudent alternatives” to the agency action 

that are economically and technologically feasible, and which will not jeopardize a 

T&E species.

Cultural Resources Conservation

- National Historic Preservation Act (NHPA): Does not require preservation. However, 

NHPA requires federal agencies to consult with the State Historic Preservation Officer 

(SHPO), the Advisory Council on Historic Preservation (ACHP), when appropriate, and 

Indian tribes when an action (“undertaking”) is the type of action that could adversely 

affect a historic resource.

-- Historic resources are those districts, sites, buildings, structures, or objects that 

are included in, or are eligible for inclusion in, the National Register of Historic 

Places (NRHP). The NRHP is administered by the National Park Service (NPS).

-- Eligible properties are those that are associated with events that have made a significant contribution to history or are associated with lives of persons significant 

in our past. Eligible properties also are those that embody distinctive characteristics of a type or method of construction or representation of a master’s work, 

possess high artistic values (architecture); or have potential to yield information 

important to history or prehistory (archeology).

-- Generally, properties less than 50 years old are not eligible for listing unless they 

are of “exceptional significance”

-- Properties that the NPS has designated National Historic Landmarks are given 

special protection. Agencies are required, “to the maximum extent possible,” to 

minimize harm to a landmark.
784 The Military Commander and the Law

- Archaeological Resources Protection Act (ARPA): Protects archaeological sites on 

federal land. Archaeological sites are those that are over 100 years old and contain 

scientific information.

-- Archaeological sites are identified in each installation’s Integrated Cultural 

Resources Management Plan (ICRMP)

--- To prevent damage, destruction, or vandalism, the location of archeological sites should not be disclosed to the general public. Such information is 

exempt from disclosure under FOIA exemption 3.

--- Both ARPA and NHPA permit withholding of this information

-- Unauthorized excavation is prohibited

--- The Base Civil Engineer may issue ARPA permits that allow excavation by 

qualified individuals

--- While Air Force contractors do not need permits, all contracts should contain 

ARPA language for protecting archeological resources

--- Installations must notify any tribe, in advance, before issuing an ARPA permit 

allowing excavation of a site of religious or cultural importance to the tribe

--- Any artifacts recovered remain the property of the United States Government. Artifacts that have historic significance must be properly curated.

--- ARPA does not prohibit the collection of fossils, surface collected arrowheads, 

rocks, coins, bullets or minerals. However, this does not mean individuals 

have permission to collect these materials on Air Force installations.

Consultation Requirements for NRHP-Eligible Properties

- NHPA consultation procedures are set out in 36 C.F.R. Part 800 and chapter 3 of AFI 

32-7065, Cultural Resources Management. Consultation with SHPOs is generally conducted by the installation cultural resources program manager. Consultation with 

Indian tribes recognizes tribal sovereignty and is conducted on a government-togovernment basis; it must be initiated by the installation commander.

- Consultation may be required even for actions that qualify for an EIAP categorical 

exclusion
CHAPTER SIXTEEN Environmental Law 785

- Consultation is NOT required when:

-- The type of action proposed does not have the potential to adversely affect a 

cultural resource (for example, installing removable shelving units in a building 

in a way that does not alter the building); or

-- The action only has the potential to adversely affect cultural resources that the 

installation and SHPO have agreed, in advance and in writing, are not eligible for 

listing on the NRHP (an agreement known as a “consensus determination”); or

-- The action only has the potential to adversely affect a type of cultural resource on 

which the Air Force has previously completed consultation with the ACHP (such 

as the ACHP “program comment” on 1950s-era Wherry and Capehart housing)

- Consultation IS required for all other actions that have the potential to adversely 

affect cultural resources. Consultation is complete when:

-- The Air Force and SHPO (and Indian tribe(s) as appropriate) agree that there are 

no historic properties present, or the proposed action will have no adverse effect 

on any that are present

--- A disagreement over whether a particular property is historic is elevated 

to the “Keeper” of the NRHP (the National Park Service) for a determination

--- The SHPO has 30 days to review and disagree with an Air Force finding 

of no adverse effect. These disagreements are elevated to the ACHP for a 

determination.

-- The Air Force and SHPO (and Indian tribe(s) as appropriate) agree that there will 

be an adverse effect; and

--- If the parties agree on mitigation to resolve the adverse effect, the parties 

sign a Memorandum of Agreement (MOA) or Programmatic Agreement 

(PA). The MOA/PA commits the Air Force to taking the mitigation measures 

specified in the agreement. SAF/IEE must be given the opportunity to review 

MOAs/PAs before they are signed by the installation commander.

--- If the parties cannot agree on mitigation to resolve the adverse effect, the 

Air Force terminates consultation and raises the issue to the ACHP for its 

recommendations. The Air Force generally follows, but is not obligated to 

follow, ACHP recommendations.
786 The Military Commander and the Law

- Consultation must be completed before an Environmental Assessment “Finding of No 

Significant Impact” (FONSI) or Environmental Impact Statement “Record of Decision” 

(ROD) is signed

- Foreclosure: Failure to consult before implementing the action is termed “foreclosure” 

because it forecloses on the ACHP’s opportunity to comment on that action

-- When ACHP believes it may have been foreclosed, it notifies the Air Force (SAF/

IEE) and requests information about the consultation. SAF/IEE has 30 days to 

respond. 

-- If ACHP determines that foreclosure has taken place, it makes the determination 

available to the public and to the consulting parties

-- Foreclosure will also likely trigger closer ACHP examination of future Air Force 

actions

Relations with Indian Tribes

- Federally-recognized Indian tribes are domestic dependent sovereigns. The NHPA 

requires that they be consulted on actions that may affect historic properties on an 

Indian reservation, or historic properties of cultural and religious significance on or 

off the installation.

- Native American Graves Protection and Repatriation Act (NAGPRA): Gives tribes 

ownership and control of the disposition of Indian remains, funerary objects, sacred 

objects, and objects of cultural patrimony found on base or in Air Force possession

-- If human remains or cultural items are unintentionally uncovered during excavation, unless otherwise provided by agreement with the tribe(s) culturally affiliated 

with the base, stop the activity for 30 days and protect the items. Immediately 

notify the tribe(s) and begin consultation on their disposition.

- Under AFI 90-2002, Air Force Interactions with Federally-Recognized Tribes, installation 

commanders must personally initiate contact when consulting with Indian tribes

-- The installation commander must also meet with Indian tribes at least twice 

yearly, as well as when consultation is necessary under the NHPA, NAGPRA, or 

other requirement
CHAPTER SIXTEEN Environmental Law 787

-- Generally, this responsibility is not delegated, but it may be delegated subject 

to limitations. Commanders may also execute a consultation agreement with 

tribal leaders that permits delegation of the responsibility to contact and meet 

with tribes.

-- Consulting early when an action may significantly affect tribal resources or rights 

can prevent future violations and maintain positive relationships with tribes

- The Religious Freedom Restoration Act (RFRA), American Indian Religious Freedom 

Act (AIRFA), and Executive Order 13007, Indian Sacred Sites, require federal agencies 

to avoid burdening the practice of traditional Indian religious practices

-- Installations should grant access to and allow ceremonial use of Indian sacred 

sites on Air Force installations (or land under Air Force control) to the maximum 

extent practicable with military mission, safety and security

-- The Air Force should avoid affecting the physical integrity of such sites and maintain confidentiality of their location, where appropriate
788 The Military Commander and the Law

References

Archaeological Resources Protection Act, 16 U.S.C. §§ 470aa – 470mm

Sikes Act, 16 U.S.C. §§ 670a – 670o

Migratory Bird Treaty Act, 16 U.S.C. §§ 703 – 712

Endangered Species Act, 16 U.S.C. §§ 1531 – 1544

Native American Graves Protection and Reparation Act, 25 U.S.C. §§ 3001 – 3013

American Indian Religious Freedom Act, 42 U.S.C. § 1996

Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb – 2000bb-4

National Historic Preservation Act, 54 U.S.C. §§ 300101 – 300321

Executive Order 13007, Indian Sacred Sites (May 24, 1996)

32 C.F.R. Part 989

36 C.F.R. Part 800

50 C.F.R. Part 17

50 C.F.R. Part 402

DoDI 4710.02, DoD Interactions with Federally Recognized Tribes (14 September 2006)

DoDI 4715.03, Natural Resources Conservation Program (18 March 2011)

DoDI 4715.16, Cultural Resource Management (18 September 2008)

AFI 32-7064, Integrated Natural Resources Management (18 November 2014)

AFI 32-7065, Cultural Resources Management (19 November 2014)

AFI 90-2002, Air Force Interactions with Federally-Recognized Tribes (19 November 2014)

AFPAM 91-212, Bird/Wildlife Aircraft Strike Hazard (BASH) Management Techniques

(1 February 2004)

Endangered Species Consultation Handbook: Procedures for Conducting Consultation and 

Conference Activities under Section 7 of the Endangered Species Act (1998)
CHAPTER SIXTEEN Environmental Law 789

ENCROACHMENT MANAGEMENT

Issues regarding encroachment and sustainment challenges have the potential to directly 

affect both the ability of Air Force installations to accomplish their mission and the quality 

of life in surrounding communities. The Air Force has developed an Air Force Encroachment Management (AFEM) Program to address common issues impacting installations 

and integrates existing foundational programs such as noise regulation and the Air Installation Compatible Use Zone (AICUZ) Program.

Installation Encroachment Management Team (IEMT)

- The installation commander establishes an IEMT to assist in implementing the AFEM 

Program at an installation

- The team will be a cross-functional team with representatives from various organizations to include: 

-- Airfield Operations

-- Airspace Management

-- Financial Management

-- Civil Engineer

-- Communications

-- Public Affairs

-- Manpower

-- Office of the Staff Judge Advocate

-- Safety

-- Surgeon General

-- Security Forces

-- Weather

-- Test and Evaluation
790 The Military Commander and the Law

- Goal of the IEMT:

-- Address encroachment across the Installation Complex/Mission Footprint (IC/MF)

-- Brief the installation commander at least annually, on encroachment, emerging 

threats, the status of progress on prioritized action items, and recommended 

encroachment management focus areas for the coming fiscal year

- Installation Complex Encroachment Management Action Plan (ICEMAP): Three 

volume document (Action Plan, Reference Book, and Community Brochure) which 

addresses current and future encroachment and sustainment challenges facing Air 

Force installations and their surrounding communities

Federal Noise Control Act (FNCA)

- The FNCA exempts aircraft, military weapons, and equipment designed for combat 

use from noise regulation under the Act

- Although the FNCA generally subjects government agencies to state and local noise 

control regulation, courts have determined state and local regulation of aircraft noise 

is preempted by FAA regulation

- The FNCA requires the Air Force to comply with state and local noise stationary source 

regulations to the same extent as any other person

Air Installation Compatible Use Zone (AICUZ) Program

- Local governments ordinarily establish land use regulations. The Air Force supports 

and encourages local zoning and other land use controls that ensure land areas 

surrounding bases, especially private lands adjacent to runways, remain compatible 

with continued Air Force operations.

- Without proper land use controls, new development near airfields may increase noise 

complaints and potential for injuries and damage due to aircraft accidents. Also, 

changes in operations, e.g., bed down of new aircraft and changes in flight paths, may 

result in lawsuits by private landowners claiming the Air Force has “taken” their land.

- The DoD has established the AICUZ program to assist local governments in establishing suitable land use regulations in the vicinity of bases
CHAPTER SIXTEEN Environmental Law 791

- The Air Force develops and provides local land use planning authorities recommendations designed to ensure continued compatibility between installations and 

neighboring civilian communities

-- The first step in preparing an AICUZ proposal is to identify areas with high accident potential or affected by high noise levels from military aircraft operations

-- The Air Force uses this information to assess compatibility of land uses with current and projected Air Force operations and to make recommendations to the 

local zoning authority

-- The Air Force has no authority to implement the land use recommendations 

set forth in the AICUZ study or to control or regulate off-base land use. It simply 

presents the proposal to the local zoning authority which may approve or reject 

the proposal.

-- Close coordination between the commander, the base comprehensive planner, 

and local zoning officials is essential. This coordination serves to educate local 

land use planners regarding noise and safety impacts on private lands.

-- The installation commander must present AICUZ recommendations to local 

zoning officials in a professional and persuasive manner. Proper tact and discretion is essential to success in preventing incompatible land use and inconsistent 

development.

-- Encroachment upon important training airspace calls for expanding the AICUZ 

concepts to all critical real property and airspace assets needed to sustain the 

installation mission. These areas may be distant from the airfield, but the surrounding communities may assist in maintaining flying capacity through prudent land use planning to avoid unnecessary incompatible and conflicting land 

development.

-- Congress has provided authority to acquire property interests where necessary 

to prevent mission encroachment (10 U.S.C. § 2684a)

-- Air Force representatives may not threaten the local community with reprisals if 

the Air Force proposal is not accepted. Air Force representatives may not appear 

to coerce or otherwise unduly influence local zoning officials. For example, reprisal or coercion could include linking acceptance of proposal to potential Base 

Realignment and Closure (BRAC) decisions.

-- Constant consultation with the base SJA will minimize potential for lawsuits and 

impacts on the mission
792 The Military Commander and the Law

References

Noise Control Act of 1972, 42 U.S.C. §§ 4901-18

10 U.S.C. § 2684a

DoDI 4165.57, Air Installations Compatible Use Zones (AICUZ) (2 May 2011), incorporating 

Change 1, 12 March 2015

AFI 32-7063, Air Installations Compatible Use Zones Program (18 December 2015)

AFI 90-2001, Encroachment Management (3 September 2014)

AFH 32-7084, AICUZ Program Manager’s Guide (1 March 1999)
CHAPTER SIXTEEN Environmental Law 793

ENCROACHMENT AND TESTIFYING AT LOCAL HEARINGS

Unchecked growth around Air Force installations and training areas can negatively 

impact the Air Force’s ability to conduct missions and training. Competition for natural 

resources and land use can cause tension between the needs of the Air Force and the 

needs of surrounding landowners. To guard against incompatible land uses, the Air Force 

has established measures to communicate and coordinate land-use planning with local 

communities and state government. Commanders play important roles in these efforts 

and should understand the processes involved in participating in state and local hearings 

regarding encroachment issues.

Types of Encroachment 

- Encroachment can take many forms:

-- Complaints from neighboring landowners concerning noise from military flights 

and other training activities 

-- Protected wildlife being forced onto installations due to outside civilian development activities 

-- Frequency spectrum interference from broadcast towers and wind-energy 

turbines 

-- Competition for airspace between military and civil aviation

-- Cell phone towers and other tall buildings becoming obstacles to safe flight 

-- Environmental and land-use laws and regulations passed by states, municipalities, and administrative agencies

-- Light pollution from nearby communities reducing the effectiveness of night 

vision training

-- Competition for limited natural resources, particularly water in drought-stricken 

areas
794 The Military Commander and the Law

Encroachment Issues at the State, Local, and Federal Levels

- Air Force responses to regulations by other federal agencies are typically handled 

via inter-agency coordination rather than public testimony. For more information on 

this topic, see AFI 90-401 Air Force Relations with Congress, or consult with the office 

of legislative liaison, SAF/LL

- Often, Air Force subject matter experts (SMEs) are asked to provide testimony before 

a state or local body, such as a legislative assembly or a county zoning commission

- Air Force personnel may testify at state and local hearings when the following two 

criteria are met: (1) there is significant Air Force interest in the relevant issues; and 

(2) there is no conflict of interest between the United States and the testifying Air 

Force personnel

- Requests to testify before state and local legislative bodies on encroachment or other 

environmental issues must be submitted and approved through command channels 

prior to testifying–normally HQ USAF/JAA (see AFI 51-301, Civil Litigation, para. 9.19)

-- Contact your servicing legal office to start the process. They will assist in coordination with the Regional Counsel Office (RCO) who will begin the staffing process

--- The RCO is part of AFLOA/JACE, and directly advises the Air Force Regional 

Environmental Coordinator (REC)

- The proposed testimony must accompany the request and be as detailed as possible

- You should contact the RCO for any formal or informal communication with state and 

local regulators (see DoDI 4715.02, Regional Environmental Coordination)

Ethical Considerations of Testifying at State and Local Hearings

- Commanders should engage with state and local authorities in their official capacities. They should represent Air Force positions on issues rather than expressing 

personal opinions.

- The purpose of testifying is to “educate and inform,” not to lobby for a particular 

outcome

-- For example, a commander may testify that a proposed project would interfere 

with flight operations, but a commander should not advocate for or against the 

adoption of a particular law or regulation
CHAPTER SIXTEEN Environmental Law 795

- Prior to testifying, Air Force personnel must coordinate with the REC (DoDI 4715.02), 

appropriate stakeholders (based on the subject matter), and Public Affairs to identify 

the Air Force official position on the issues involved

- Under the Anti-Lobbying Act (ALA) (18 U.S.C. § 1913), government employees MAY 

NOT, as part of their official work, provide administrative support to private organizations for lobbying efforts, prepare editorials or other communications without 

accurately disclosing the government’s role in the preparation of such, or appeal to 

members of the public to contact elected representatives in support or opposition 

of legislation (i.e., conduct “grass-roots lobbying”)

- It is important to comply with any relevant state laws governing lobbying that may 

further restrict an Airman’s testimony. Check with your RCO for your state’s rules.

Pre-hearing Preparation

- As a preliminary matter, commanders should determine who should testify. It is often 

beneficial for the installation commander or another senior installation or Air Force 

representative to testify about potential impacts, but technical or legal staff may 

also be necessary.

- If TDY funds are unavailable, telephonic or other remote appearances may be 

allowed by the state. However, remote appearances may not always be appropriate 

or effective.

- Consider meeting with members of the committee/agency or their staffers prior to 

the hearing to determine relevant topics to address prior to the hearing

- Pre-coordinate talking points with Public Affairs, and prepare to refer media inquiries 

to a specific public affairs’ office, press release, or other pre-coordinated DoD information source

- Identify potential alternative language to the proposed bill that would eliminate Air 

Force concerns

- Due to unexpected time constraints (e.g., other speakers going long), prepare one, 

two, three, and five-minute versions of your speech; the key is to identify and organize 

the main talking points in advance

- Prepare for questions and expect interruptions, but always try to circle back to main 

talking points
796 The Military Commander and the Law

- If possible, participate in a practice (“dry run”) hearing to prepare and to know what 

to expect

- Arrive well in advance of the scheduled hearing as times can be adjusted unexpectedly

- Consider preparing visual aids and exhibits (such as letters of support) to augment 

the testimony

Advice for Testifying Personnel

- The panel should be addressed as follows:

-- “Chair Jones,” “Vice-Chair Smith,” “Senator X,” etc.

- Make sure to announce who you are and whom you represent—e.g., the Air Force, 

DoD, or just a particular installation, etc.

- State the position

-- “The proposed bill, as drafted, would result in X, Y, and Z impact to our operations,” 

or

-- “The proposed bill would facilitate our adoption of X new training area, which 

would reduce the number of flights over Y subdivision, where we receive many 

noise complaints”

- Ask to have written testimony entered into the record

- Make sure to address the audience correctly, but don’t be surprised if they get your 

rank wrong—lieutenant colonels will become lieutenants and major generals will 

be called majors

- Do not guess or speculate about answers you do not know; “I’ll get back to you” is a 

better answer than guessing

- Do not allow yourself to be drawn into an argumentative debate or personal attacks; 

focus on the purpose of your testimony: to educate and inform

- Be respectful of panel members and other attendees, regardless of their positions or 

the tone of their questions/comments; you represent the Air Force, and you should 

not come across as being a bully, sarcastic, or condescending
CHAPTER SIXTEEN Environmental Law 797

- Consider reminding the panel about good points made by other regulated entities 

in their presentations

- Lastly, remember to thank the panel members for their time

Following Up

- Regardless of how well the hearing went, follow up to ensure, as much as possible, 

the Air Force position appears in the final rule or bill. As part of this effort, provide 

any information promised during the hearing.

- If the hearing did not go well, keep in mind, in the political arena it is possible to have 

second, third, and even fourth bites at the apple

-- The bill or rule may still be defeated at a full session, in the other house of the 

legislature, or even pursuant to governor veto

-- Waivers or other exceptions may still be available after the rulemaking takes 

effect

-- Many state offices are on two-year election cycles, so political perspective can 

shift quickly. There may be other opportunities to amend a bill or rule after the 

next election cycle and before it starts having major negative effect on the Air 

Force.

References

Anti-Lobbying Act, 18 U.S.C. § 1913

DoDI 4715.02, Regional Environmental Coordination (28 August 2009)

AFI 51-301, Civil Litigation (20 June 2002)

AFI 51-902, Political Activities by Members of the US Air Force (27 August 2014)

AFI 51-903, Dissident and Protest Activities (30 July 2015)

AFI 90-401, Air Force Relations with Congress (14 June 2012)

AFI 90-2001, Encroachment Management (3 September 2014)
798 The Military Commander and the Law

CLEAN AIR ACT

The Clean Air Act (CAA) (42 U.S.C. §§ 7401 to 7671(q)) is one of the most comprehensive 

and complicated environmental statutes. CAA questions or issues should be referred to 

your staff judge advocate (SJA), as this guide is only a brief introduction. Air Force installations are subject to the substantive requirements of the CAA, and failure to comply may 

severely impact an installation’s mission and its budget.

Air Quality Emissions Limitations

- The primary air pollutants regulated by the CAA are called “criteria pollutants.” Currently, there are 6 criteria pollutants: Ozone (O3), Carbon Monoxide (CO), Sulfur 

Dioxide (SO2), Particulate Matter (PM10 & PM2.5), Lead (Pb), & Nitrogen Oxides (NOx)

-- The United States is divided into air quality control regions (AQCR) to control 

these pollutants. AQCRs usually consist of several counties but, depending on 

the area, it may only be one county, or even a portion of a county.

-- For each criteria pollutant, the Environmental Protection Agency (EPA) has 

established a health-based national ambient air quality standard (NAAQS). This 

standard establishes a bright line between healthy air and polluted air.

-- An AQCR testing lower than a NAAQS is considered to be in “attainment” for that 

pollutant. An AQCR testing over a NAAQS is considered to be in “nonattainment” 

for that pollutant.

-- Once a nonattainment area is reduced below the standard for a particular criteria 

pollutant, it is considered a “maintenance area,” and is subject to “maintenance 

plan” requirements for up to 20 years

State Implementation Plans (SIPs)

- States have primary responsibility for assuring NAAQSs are met within the state

- Each state is required to create a planning document called a state implementation 

plan (SIP), which sets forth the means to achieve or maintain air quality within its 

AQCRs. States are required to submit SIPs to EPA for approval.

-- Once approved, SIP requirements are enforceable by both the state and EPA

-- A state’s SIP is required to set forth enforceable emissions limitations and timetables, technological or process changes, monitoring requirements, and an 

enforcement program
CHAPTER SIXTEEN Environmental Law 799

- In “nonattainment” and “maintenance areas,” federal entities are prohibited from 

supporting or taking actions (e.g., construction activity, weapon system bed down, 

mission realignment, training exercise) which do not conform with an SIP, unless the 

facility first conducts an analysis to demonstrate the proposed action will not hinder 

attainment or maintenance. This requirement is called “general conformity.”

New Sources of Air Emissions

- In addition to meeting emissions limits under a state’s SIP, new pollution sources (or 

major modifications of existing sources that increase pollution emissions) must meet 

new source performance standards (NSPS) or new source review (NSR) requirements

- New (or modified) sources must incorporate approved, environmentally safe, equipment to restrict emissions

- Large new sources are subject to preconstruction review and must obtain permits

- The nature of the permitting requirement varies depending on whether the new 

source is a “major” or “minor” source, which is determined by whether the source is 

in an “attainment” (clean) or “nonattainment” (dirty) area and the source’s potential 

to emit (PTE). It is the PTE, not the actual or planned level of emissions, that triggers 

the permit requirement.

-- In attainment areas, a “major” source, for purposes of permitting new or modified 

sources, is typically one with the PTE up to 250 tons per year (tpy) of any one 

criteria pollutant

-- In a nonattainment area, PTE as little as 10 tpy may make a source “major” and, 

thus, require a permit

Hazardous Air Pollutants (HAPS)

- In addition to the regulation of emissions of criteria pollutants, the Clean Air Act also 

regulates the emission of HAPs, also referred to as air toxics. These pollutants cause 

or may cause cancer or other serious health effects, such as reproductive effects or 

birth defects, or adverse environmental and ecological effects.

- Under the 1990 amendments to the Clean Air Act, 189 specific air toxics are to be 

regulated. Examples of HAPs include benzene, which is found in gasoline; perchlorethlyene, which is emitted from some missile operations; and methylene chloride, 

which is used as a solvent and paint stripper by depots and a number of other industrial sources.
800 The Military Commander and the Law

- Any stationary source having a potential to emit 10 tpy of a listed HAP or 25 tpy 

of any combination of HAPs is considered a “major source” subject to regulation, 

including permits

- Major HAP sources must install technology that will result in the maximum degree 

of HAP emission reduction that is achievable. This technology is called maximum 

available control technology (MACT) standards.

Operational Permits

- Title V of the Clean Air Act Amendments of 1990 requires an operational permit be 

obtained for any “major” stationary source of a criteria or hazardous air pollutant

- Title V requires federal permit applications, certifications of compliance, emergency 

reports, and required semi-annual emissions reports to be signed by the installation 

commander as the “responsible official.” This responsibility cannot be delegated or 

assumed by an “acting” commander in the absence of the installation commander.

- Installations must comply with permit requirements of state and local permits as well. 

Some states and localities may identify the installation commander as the “responsible official,” and delegability is up to that state or locality.

Mobile Sources

- In addition to addressing stationary sources of pollution (e.g., boilers, fueling systems, and heat plants), the CAA addresses mobile sources such as cars, trucks, buses, 

aircraft, lawn mowers, construction equipment, aircraft ground support equipment 

and other portable equipment

-- Installation commanders must ensure Air Force fleet vehicles and privately 

owned vehicles (POVs) operated by employees on the installation (regardless 

of where registered) comply with an existing local inspection and maintenance 

(I/M) program (if one exists)

--- GOVs, unless issued a national security exemption (NSE), are subject to fleet 

testing requirements, which must be implemented by the installation where 

the GOV is assigned

--- POV certification is required for employees assigned to the installation for 

more than 60 days
CHAPTER SIXTEEN Environmental Law 801

--- Certifications are accomplished in the Employee-Certification and Reporting 

System (also known as ECARS) or by AF Form 4434, Vehicle Inspection and 

Maintenance Program Self-Certification, for employees not identified in Air 

Force personnel systems

-- Manufacturers of certain military aircraft and combat vehicles may be entitled 

to an NSE upon request to EPA and after endorsement of the need for an NSE by 

the using military service

-- Installation equipment and vehicles not issued an NSE, are required to operate 

consistent with all applicable federal, state and local requirements

Stratospheric Ozone Protection

- Generally, the Clean Air Act phases out the production of ozone depleting substances. 

Other laws and regulations govern the continued use of these substances.

-- Ozone-depleting substances are still used as fire suppressants, refrigerants, and 

inerting agents in combat aircraft fuel tanks

-- Any use, storage, or handling of these substances is highly regulated

- In the absence of adequate substitutes, the EPA is authorized to grant exemptions 

to the consumption of specific ozone depleting substances

Enforcement

- Citizens have the right to sue the Air Force for violations of the CAA

- Regulators, under the CAA, have all the common environmental enforcement rights—

inspections, fines, injunctions, and criminal sanctions

- Sovereign immunity for fines and penalties

-- DoD does pay fines imposed by EPA under the CAA

-- State-imposed fines and penalties are more complicated

--- The current Department of Justice position is that Congress has not waived 

sovereign immunity regarding state-imposed CAA fines and penalties
802 The Military Commander and the Law

--- DoD does not pay state CAA fines and penalties except under very limited 

circumstances (i.e., within 6th Circuit due to a Court of Appeals decision)

- It is imperative bases not pay CAA fines or penalties prior to consulting their SJA

References

Clean Air Act, 42 U.S.C. §§ 7401–7671q

AFI 32-7040, Air Quality Compliance and Resource Management (4 November 2014)

AF Form 4434, Vehicle Inspection and Maintenance Program Self-Certification (October 2013)
CHAPTER SIXTEEN Environmental Law 803

CLEAN WATER ACT AND SAFE DRINKING WATER ACT

In general, the Clean Water Act (CWA) (33 U.S.C. §§ 1251 to 1387) regulates discharge of 

pollutants into the waters of the United States and provides quality standards for surface 

waters. The Safe Drinking Water Act (SDWA) (42 U.S.C. §§ 300f to 300j-26) regulates the 

quality of drinking water. Rights to the use of surface water and groundwater are generally governed by state law and are not the focus of these acts.

Clean Water Act 

- The CWA states it is unlawful to discharge pollutants from a point source to surface 

waters without a permit

- The statute defines “pollutant” very broadly to include almost any man-made addition 

to a body of water, including dredge and fill activities and pollutants from stormwater 

that drains from facilities

-- Surface waters covered by the Act encompass all “waters of the United States, 

including the territorial seas,” and certain wetlands

--- In 2015, the Environmental Protection Agency (EPA) issued a final rule clarifying what are and what are not “waters of the United States” for purposes of 

the CWA. That rule is under legal challenge and is currently pending further 

action in federal court.

--- Questions as to whether a particular body of water or wetland falls under the 

CWA should be directed to the staff judge advocate (SJA)

-- The Act regulates discharges from a “point source,” which is defined as “any discernible, confined and discrete conveyance” that discharges or may discharge 

pollutants

--- Examples of point sources are pipes, ditches, tunnels, conduits, wells, containers, rolling stock, and vessels

--- Storm water runoff, snow melt runoff, and other surface runoff and drainage 

may also be regulated as a point source discharge under the CWA if from 

certain municipalities (to include some military bases), and some industrial 

and construction activities
804 The Military Commander and the Law

- CWA mandates each state develop a plan to reduce nonpoint source pollution that 

contributes to water quality control problems in the area. This type of pollution has 

a variety of sources and is caused by rainfall or snowmelt and resulting in land runoff 

or drainage.

- There are two primary permitting systems under the CWA:

-- Section 404 regulates dredge and fill activities (i.e., activities which disturb waters 

of the United States, including certain wetlands)

-- Section 402, the National Pollutant Discharge Elimination System (NPDES) program, regulates discharge of other pollutants from wastewater plants and other 

point sources and includes the stormwater permit program

NPDES Program (Section 402)

- EPA has delegated the authority to administer the NPDES program to most states

- Each delegated state may adopt more stringent limitations than those established 

by EPA

- EPA retains a veto authority over delegated states

- The EPA regional office issues permits in non-delegated states

- The NPDES program addresses discharge from both traditional point sources, such 

as sewage treatment plants, and storm water discharges

- The NPDES program regulates two very broad types of dischargers, direct and indirect

-- Direct: Discharging wastewater directly from a facility to surface water requires 

a permit

-- Indirect: Discharging to a wastewater treatment works, rather than directly into 

surface water, does not require a permit. Although pretreatment of wastewater 

may be required before introduction into a treatment works.
CHAPTER SIXTEEN Environmental Law 805

Dredge and Fill activities (Section 404)

- In conjunction with EPA, the U.S. Army Corps of Engineers administers a second 

permit program regulating dredge and fill activity

-- Activities in waters of the United States, including wetlands (such as clearing and 

construction) require the Air Force to obtain a dredge and fill permit

-- Failure to obtain a permit can delay projects, require the Air Force to restore 

land to its prior natural condition, and subject the Air Force and its personnel to 

applicable administrative, civil and criminal liability

-- In some circumstances, a state may be delegated primary jurisdiction over dredge 

and fill permits within its boundaries

-- There may also be nationwide permits applicable for some minor activities

State Enforcement

- Sovereign immunity has been waived with regard to the CWA, meaning federal agencies are subject to state and local regulation in delegated states

- The waiver applies to both substantive and procedural requirements, including 

permits and reasonable service charges

- The waiver does not authorize installations to pay civil or administrative fines and 

penalties, which is prohibited

Safe Drinking Water Act

- The Safe Drinking Water Act (SDWA) sets standards for public water systems (PWS) 

and prohibits underground injection that endangers drinking water sources. Underground injection rules govern a variety of wells to include oil and gas wells and even 

some septic system leach fields.

-- SDWA standards apply to PWS with 15 connections or service to 25 people for 

at least 60 days per year

-- The SDWA exempts from coverage any PWS receiving all of its water from another 

PWS (has only distribution and storage facilities, no collection or treatment facilities); that does not “sell” water to any person; and that is not a carrier conveying 

passengers in interstate commerce
806 The Military Commander and the Law

--- Many PWS do not qualify for this exemption simply because they engage in 

minor treatment of their water (e.g., adding chlorine to maintain disinfection 

levels), or because they “sell” water by virtue of providing it to tenants. The 

EPA has allowed the regulatory authority to modify the monitoring requirements imposed on such “consecutive PWS.” This matter must be evaluated 

based on the law and regulations of the permitting authority.

-- The Act specifies maximum contaminant levels for drinking water as well as 

treatment, testing and reporting requirements enforceable by states with EPA 

oversight

- 1996 amendments to the SDWA modified the waiver of sovereign immunity, resulting 

in federal facilities now being subject to punitive civil fines and penalties

References

Safe Drinking Water Act of 1974, 42 U.S.C. §§ 300f–300j-26

Clean Water Act, 33 U.S.C. §§ 1251 et seq.

Executive Order 11990, Protection of Wetlands (24 May 1997)

AFI 32-1067, Water and Fuel Systems (4 February 2015)

AFI 32-7047, Environmental Compliance, Release and Inspection Reporting (22 January 2015

AFI 48-144, Drinking Water Surveillance Program (21 October 2014)
CHAPTER SIXTEEN Environmental Law 807

WATER RIGHTS

“Water rights” are a type of property right allowing for the diversion of water from its 

natural state, e.g., pumping it from the ground or transporting it from a stream. Many 

Air Force installations possess water rights, and those rights are crucial in minimizing the 

cost of water to operate the installation. (Because utility contracts do not confer water 

rights, they are outside the scope of this paper.)

Doctrines 

- Like other types of property law, most water rights law is state rather than federal 

law. While there are distinctions between surface water and groundwater doctrines, 

most state water law is derived from either the Riparian Rights Doctrine or the Prior 

Appropriation Doctrine. Washington, Oregon, and California have hybrid schemes, 

drawing from both doctrines. Generally, riparian systems are found in the east and 

prior appropriation systems and federal reserve rights are found in western states.

-- Riparian Rights Doctrine: Assigns the right to divert water from a water source 

to landowners with land riparian to (bordering or including) the water source. 

Land- owners have “overlying rights” to divert groundwater from sources beneath 

their land.

-- Prior Appropriation Doctrine: Assigns the right to divert water (and priorities 

among water rights holders) on the basis of historical usage, with first-in-time 

given priority over later uses

-- Federal Reserved Rights Doctrine: Created under federal law. Federal water rights 

are created upon public domain land which has been withdrawn or reserved for 

a specific federal purpose. 

--- Land withdrawn from the public domain (in those western states in which 

all title derives from the federal government), and reserved for a particular 

purpose, is entitled to the minimum amount of (previously unallocated) 

water necessary to fulfill the purpose of the reservation

--- This doctrine is judicially created in Supreme Court cases

--- When they exist, these rights are favored over state water rights and provide 

a number of advantages

--- Local installation real estate offices can provide a history of whether a particular installation has parcels of “public domain” lands.
808 The Military Commander and the Law

Sovereign Immunity

- The United States has waived its right against being sued (known as sovereign 

immunity) in “general stream adjudications.” These lawsuits determine the rights of 

all potential claimants to a source of water. 

-- The Air Force has been involved in several major water adjudications in Arizona, 

Nevada, and Idaho

- All major western installations have water rights issues. Also, water rights are increasing in importance for all Air Force installations as questions regarding water withdrawal permits and payment of fees for Air Force water use has increased.

- The federal government has not waived sovereign immunity as to the regulation 

of federally owned water rights, nor has the federal government waived sovereign 

immunity with regard to state water codes. Generally, the Air Force may not pay 

fees associated with the privilege of withdrawing water such as water assessment 

or allocation fees.

- Appropriate small administrative fees may be paid if they serve to protect Air Force 

water rights and provide a benefit to the installation 

-- For example, paying an administrative fee to change a point of diversion for a 

well on an installation that does not have federal reserved rights may be prudent 

to protect the use of water to which the installation has right under state law.

- Before payment of any fees associated with an Air Force water right, consult with the 

base staff judge advocate (SJA) for advice regarding appropriateness. The base SJA 

will likely need to consult with AFLOA/JACE.

- In some instances, it may be appropriate, as a matter of policy, for the Air Force to 

agree (out of comity rather than obligation) to comply with state water codes, but 

only to the extent practicable and consistent with fiscal law and sovereign immunity 

principles
CHAPTER SIXTEEN Environmental Law 809

Key Issue for Bases: Preservation of Water Rights

- It is Air Force policy to retain water rights and to avoid jeopardizing Air Force interests 

in water rights/resources (see AFI 32-1067, Water and Fuel Systems)

- State water rights can be lost inadvertently (e.g., failing to follow procedures for 

transferring water rights when closing a well)

- Federal reserve rights cannot be lost or abandoned while the Air Force installation 

is active

- Bases must preserve records necessary to establish the right to take water. It is prudent to maintain all water use and water rights records. Civil engineering (CE) is the 

records custodian for these records.

- Installations should file objections to applications for water rights which may diminish water to which the installation has an existing right

- CE should monitor activities of local regulators relating to water sources within the 

area

- Installations should always consult their SJA prior to paying fees associate with water 

rights. State and local authorities have attempted to regulate water rights even 

though sovereign immunity has not been waived, and some bases have mistakenly 

paid associated fees.

Reference

AFI 32-1067, Water and Fuel Systems (4 February 2015)
810 The Military Commander and the Law

SOLID AND HAZARDOUS WASTES

The Solid Waste Disposal Act (SWDA) (also known as the Resource Conservation and 

Recovery Act (RCRA)) imposes requirements for the management of hazardous wastes 

(HW) and nonhazardous solid wastes. The Act also provides for regulation of underground 

storage tanks (USTs).

Hazardous Waste Management: Subtitle C

- RCRA imposes comprehensive requirements on those who generate, transport, treat, 

store, or dispose of HW. Every Air Force installation generates HW, and many have a 

RCRA permit regulating the treatment, storage, and/or disposal of HW.

- RCRA is predominantly a program run by the individual states. Environmental Protection Agency (EPA) retains independent enforcement jurisdiction even in those states 

where overall program authority has been delegated. 

-- An individual state program must be at least as stringent as the federal program 

and may be more stringent

-- Consult with the staff judge advocate (SJA) if questions arise as to the limits that 

exist, if any, when a state is enforcing RCRA requirements

- RCRA hazardous wastes are solid wastes that are specifically listed as hazardous waste 

in the C.F.R. or solid wastes that exhibit a hazardous characteristic (ignitability, corrosivity, reactivity, or toxicity). The Act excludes certain categories of waste from its 

coverage.

- Although used oil destined for disposal or recycling is not a listed HW, RCRA imposes 

management requirements for used oil from generation to reuse or disposal 

-- Used oil that exhibits a hazardous characteristic and is not recyclable must be 

managed as HW

-- Be aware that if used oil is mixed with PCBs, the oil is managed under the Toxic 

Substances Control Act (TSCA), not RCRA. Avoid this type of mixing on your facility. You want to be under RCRA, not TSCA.
CHAPTER SIXTEEN Environmental Law 811

- RCRA creates a system that regulates and tracks HW from “cradle-to-grave”

-- RCRA sets strict requirements for accumulating, storing, transporting and disposing of wastes. RCRA also regulates personnel training, facility equipment, 

inspections, and emergency response planning. 

--- Most of these requirements must be documented in a written paper or 

electronic record and the records kept available for inspection (for example, 

transport manifests must be kept for a minimum of 3 years)

-- HW may only be accumulated in accordance with specific requirements. Containers must be properly marked, closed, and kept secure from unauthorized access 

or tampering.

-- Out of date pharmaceuticals removed from formulary shelves require characterization under RCRA for a determination as to whether they are either “listed” 

hazardous waste or exhibit a hazardous characteristic (usually toxicity)

-- Initial Accumulation Point ( “satellite point”): Designated location at or near the 

point of generation of HW 

--- At this location, waste cannot exceed 55 gallons of HW or one quart of acutely 

hazardous waste 

--- Once the limit is exceeded, the container must be moved to an accumulation 

site or permitted Treatment, Storage and Disposal (TSD) facility within 3 days

-- Accumulation Site: Used to temporarily store hazardous wastes until they are 

shipped to a TSD facility 

--- For those generating large quantities of hazardous waste, the waste may 

be retained at an accumulation site for up to 90 days for large quantity 

generators

--- For small quantity generators (defined by the Act and regulations), waste 

may be stored longer

-- HW is tracked by a manifest initiated by the generator. When waste is transferred 

to permitted entities that transport, treat, store or dispose of it, the manifest 

is annotated to show that it passed into their possession and was properly 

managed.
812 The Military Commander and the Law

-- Transporters must properly label HW and deliver it to a designated TSD facility 

and must comply with Department of Transportation requirements for containers, labeling, placarding of vehicles, and spill response

- Installations must develop a hazardous waste management plan (HWMP). The HWMP 

incorporates a waste analysis plan, which is the primary document used to identify 

all waste streams generated at the installation.

Solid Waste: Subtitle D

- Establishes minimum requirements for controlling and monitoring solid waste disposal. States are given responsibility for the regulation of nonhazardous (municipal) 

solid waste.

- Municipal solid waste includes containers and packaging, food scraps, and yard trimmings. It does not include medical and hazardous wastes, construction and demolition debris, municipal sludge, or ash from power plants and incinerators.

- AFI 32-7042, Waste Management, requires an installation commander to implement 

either a recycling or a qualified recycling program on the installation. Such programs 

require careful monitoring to ensure ineligible solid or hazardous waste is not disposed through the implemented program.

Underground Storage Tanks: Subtitle I

- The Act covers tanks, including connecting underground pipes, when 10 percent or 

more of the volume of the tank and its underground pipes are beneath the surface 

of the ground

- Tanks that meet this definition are covered if they contain a regulated substance. This 

includes any hazardous substance (defined under the Comprehensive Environmental 

Response, Compensation, and Liability Act (CERCLA)) or petroleum or substances 

that are derived from crude oil. 

-- Tanks containing HW are regulated under Subtitle C

- Existing tanks must be brought up to specified performance standards or closed. If 

a tank has a release, owners and/or operators must take corrective action, including 

cleaning up the area around the tank. 

- New tanks must meet specified standards, and the appropriate regulatory agency 

must be notified before a new tank is installed
CHAPTER SIXTEEN Environmental Law 813

- Congress amended RCRA to include a waiver of sovereign immunity regarding UST 

regulation. This means state and local UST provisions apply to bases.

- EPA has expanded 40 C.F.R. Part 280 requirements as implemented in AFI 32-7044, 

Storage Tank Environmental Compliance, to mandate inspection requirements for 

emergency tanks and airport hydrant fueling systems and to increase training requirements for all people responsible for tank maintenance. These requirements become 

effective on a rolling schedule between October 15, 2015 and October 15, 2018.

Pollution Prevention Program

- It is DoD policy to reduce the use of hazardous material, the generation or release of 

pollutants, and the adverse effects on human health and the environment caused 

by DoD activities

-- The Air Force manages to reduce use of hazardous materials and the release of 

pollutants into the environment in the following hierarchy of actions:

--- Reduce/eliminate dependence on hazardous materials and reduce waste 

streams

--- Reclaim generated waste for reuse whenever possible

--- Recycle waste which cannot be reclaimed whenever possible

--- Employ treatment if properly permitted to do so

--- Dispose or release pollutants into the environment only as a last resort and, 

then, only if such disposal or release is authorized by applicable statute or 

regulation

-- Major commands or the Air Force Civil Engineer Center establish procedures to 

ensure installations develop and execute pollution prevention management 

plans. Plans must contain management strategies for ozone depleting chemicals, EPA 17 industrial toxics, hazardous waste, municipal solid waste, affirmative 

procurement of environmentally friendly products, energy conservation, and air 

and water pollutant reduction.

-- Installations must conduct opportunity assessments on a recurring basis for all 

pollutant sources. The assessment examines the total waste generation by type 

and volume of content and determines the most economical and practical option 

for reduction.
814 The Military Commander and the Law

Federal Procurement: Subtitle F

- RCRA sec. 6002 and Executive Order 13101 require federal agencies to establish an 

affirmative procurement program (also known as the green procurement program)

-- The EPA designates which items are or can be produced with recovered materials, 

such as paper, retread tires, building insulation, cement/concrete containing fly 

ash, and re-refined oils

-- Federal agencies must procure these designated items composed of the highest 

percentage of recovered material practicable, unless they are not reasonably 

available, fail to meet performance standards, or are available only at an unreasonable price

--- Procurement is not limited to contracting activities, but also includes Government Purchase Card purchases

--- Installations must train all Air Force personnel on the federal procurement 

requirements

-- The EPA is required to evaluate the federal agency’s compliance with RCRA sec. 

6002 and EPA guidance when conducting RCRA inspections. Although the EPA 

has no enforcement authority, it can issue a notice of violation for non-compliance 

with RCRA sec. 6002 or the EPA guidance.

References

Solid Waste Disposal Act (as amended by the Resource Conservation and Recovery Act (RCRA)), 

42 U.S.C. §§ 6901-92

40 C.F.R. Parts 260-280

OSD Memorandum, Establishment of the DoD Green Procurement Program (27 August 2004)

AFI 32-7001, Environmental Management (16 April 2015), incorporating Change 1, 8 April 2016

AFI 32-7042, Waste Management (7 November 2014)

AFI 32-7044, Storage Tank Environmental Compliance (18 August 2015), incorporating Change 1, 

22 April 2016

AFI 32-7086, Hazardous Materials Management (4 February 2015)
CHAPTER SIXTEEN Environmental Law 815

CONTROL OF TOXIC SUBSTANCES

The Toxic Substances Control Act (TSCA) (15 U.S.C. §§ 2601-92) regulates the manufacture, 

processing, and distribution of chemicals that pose unreasonable risk of injury to human 

health or the environment. TSCA authorizes the Environmental Protection Agency (EPA) 

to screen existing and new chemicals to identify potentially dangerous products or uses 

and to take action ranging from banning production, import, and use to requiring warning labels.

Polychlorinated Biphenyls (PCBs)

- TSCA prohibits manufacture and distribution of polychlorinated biphenyls (PCBs)

-- PCBs were common components in hydraulic fluids, lubricants, insecticides, and 

heat transfer fluids and were used in electrical equipment (e.g., transformers, 

capacitors)

-- Old transformers and capacitors containing PCBs may be found on installations, 

as might PCB-contaminated soil

-- Past insecticide spraying, ceiling tile coatings, and certain painted surfaces may 

also be sources of PCBs

-- Consistent with Air Force Policy and TSCA, installations focus on PCB elimination

-- Installation personnel should be trained to avoid mixing normal used oil and oil 

containing PCBs. Managing PCB imbued oil under TSCA is far more expensive 

than managing used oil under RCRA.

Asbestos

- TSCA also regulates asbestos

-- Asbestos was widely used in thousands of products because it is strong, flexible, 

will not burn, insulates effectively, and resists corrosion (e.g., floor tiles, insulation, 

or sealants)

-- Inhalation or ingestion of asbestos fibers can cause disabling or fatal diseases

-- Regulatory requirements cover, among many things, remediation of asbestos hazards, implementation of proper work practices, and training in proper 

handling
816 The Military Commander and the Law

-- Installations are most likely to encounter asbestos when maintaining, repairing, 

renovating, or demolishing buildings or utilities

--- TSCA mandates specific requirements regarding training and certification of 

workers and site preparation for renovation of buildings containing asbestos 

containing material

-- Asbestos is also regulated by other statutes, including the Clean Air Act and the 

Occupational Safety and Health Act

-- The Air Force manages asbestos to reduce human exposure to airborne asbestos 

fibers

Radon

- TSCA requires studies of federal buildings to determine the extent of indoor radon 

contamination, but does not require monitoring or abatement of radon

- Radon is a naturally-occurring radioactive gas that may be found in drinking water 

and indoor air, and which presents serious health risks, including cancer

- Radon in soil under homes is the biggest source of radon in indoor air

- In 1999, the EPA proposed a rule to reduce radon in drinking water. Although public 

comment was complete in 2000, the rule has not yet been adopted

-- See http://www.epa.gov/reg-flex/sbar-panel-national-primary-drinking-waterregulations-radon)

Lead-Based Paint

- TSCA addresses lead hazards, including requirements for the identification, reduction, 

disclosure, and management of lead-based paint

-- Lead exposure can cause serious health effects, particularly in children

-- Lead, especially lead-based paint (LBP), is a major concern on installations where 

it was commonly used on military family housing and other buildings prior to 

1950. Lead-contaminated soil and dust are also a problem. 
CHAPTER SIXTEEN Environmental Law 817

-- Bases must address lead hazards during maintenance, repair, renovation, and 

demolition of buildings

-- Lead hazards are also an important issue when property is transferred or sold

-- TSCA seeks to reduce the lead hazard to young children by focusing on childoccupied facilities and “target housing” (housing built before 1978)

-- Although TSCA does not contain a general waiver of sovereign immunity, the 

waiver for LBP is extensive, requiring DoD to comply with federal, state, and local 

requirements

-- EPA and DoD have agreed lead-contaminated soil outside a housing unit will be 

governed by TSCA and its implementing regulations, rather than CERCLA

-- DoD policy requires military installations to comply with disclosure regulations 

related to LBP in military family housing

References

Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601-92

Memorandum, Office of the Under Secretary of Defense, Lead-Based Paint Policy for Disposal 

of Residential Real Property (7 January 2002) (with attachment Field Guide, Lead-Based 

Paint Guidelines for Disposal of Department of Defense Residential Real Property, 

December 1999)

Memorandum, Office of the Under Secretary of Defense, Disclosure of Known Lead-Based Paint 

(LBP) and/or LBP Hazards in DoD Family Housing (18 February 1997)

Memorandum, Office of the Under Secretary of Defense, Asbestos, Lead Paint and Radon Policies 

at BRAC Properties (31 October 1994)

Memorandum, HQ USAF/CC, Air Force Policy and Guidance on Lead-Based Paint in Facilities 

(24 May 1993)

Memorandum, HQ USAF/CEV, Policy and Guidance on Lead-Based Paint (LBP) Final Disclosure 

Rule (19 August 1996)

Memorandum, HQ USAF/CEV, Air Force PCB-free Status and Clarification of “Target” PCB 

Equipment (15 May 1996)

Memorandum, USAF/CEV, Polychlorinated Biphenyl (PCB) Pollution Prevention Program 

(27 February 1996)

AFMAN 48-155, Occupational and Environmental Health Exposure Controls (1 October 2008)

AFI 32-1052, Facility Asbestos Management (24 December 2014)
818 The Military Commander and the Law

ENVIRONMENTAL LAW OVERSEAS

Environmental requirements for U.S. forces outside the states, territories, and possessions 

that comprise the United States are determined primarily by treaties and international 

agreements, DoD and geographic combatant command policies, and service and subordinate command directives. Few U.S. environmental laws apply outside the United States 

and those that do apply extraterritorially are incorporated into DoD policy for overseas 

installations and operations.

Treaties and International Agreements

- Treaties and other international agreements (IAs) may dictate or influence environmental requirements for U.S. forces overseas. For example:

-- The London Dumping Convention regulates disposal at sea of wastes from ships, 

aircraft, and platforms, or other man-made structures. Because the United States 

signed and ratified this agreement, it has the force of law, and directly affects U.S. 

actions during contingency operations.

-- The Basel Convention treaty governs trans-boundary movement of hazardous 

waste. This treaty is not binding on the United States (it signed, but never ratified); however, the treaty can impact U.S. operations by limiting waste-handling 

options in countries with inadequate disposal facilities.

- Status of Forces Agreements (SOFAs), defense cooperation agreements, mutual 

defense agreements, basing or access agreements, and other IAs may specifically 

address environmental matters. For example:

-- The U.S.-Republic of Korea SOFA includes provisions addressing environmental 

protection

-- The 1993 Supplementary Agreement to the NATO SOFA contains environmental 

provisions that apply to NATO-member countries who station forces in Germany

- IA requirements have been incorporated within DoD and Unified Combatant Commands (UCCs) policies
CHAPTER SIXTEEN Environmental Law 819

DoD Overseas Environmental Policy

- DoDI 4715.05, Environmental Compliance at Overseas Installations Outside the United 

States, is the foundation of environmental compliance requirements

-- Applies to overseas enduring locations, but not overseas contingency locations

--- Enduring Locations: Installations and other DoD activities under the operational control of DoD or a DoD Service Component which DoD intends to 

maintain access to and use for the foreseeable future

--- Contingency Locations: Non-enduring locations that support and sustain 

operations during named and unnamed contingencies

-- Requires DoD establish and maintain the Overseas Environmental Baseline Guidance Document (OEBGD), which is a set of objective standards and management 

practices establishing minimum human health and environment protection 

levels

--- The OEBGD reflects generally accepted environmental protection standards 

that apply to DoD installations and actions in the United States

--- The OEBGD incorporates requirements of U.S. laws that apply outside the 

United States (e.g., portions of the National Historic Preservation Act are 

incorporated into the OEBGD and country-specific Final Governing Standards 

(FGS) required by DoDI 4715.05)

-- Requires DoD Lead Environmental Components (LECs) to develop and maintain 

country-specific FGS

--- County specific FGS are country-specific environmental standards above and 

beyond what is required by the OEBGD. They are binding on all enduring 

locations within a particular country.

--- A LEC is the designated Secretary of a Military Department, a Combatant 

Commander, or a Subunified Commander who is responsible for environmental matters on all DoD installation in a specific foreign country or geographic location outside the United States

--- LECs create FGS based on comparison of certain host nation and IA requirements to OEBGD standards
820 The Military Commander and the Law

--- Standards providing more protection to human health and the environment 

generally are incorporated into the FGS

--- LECs coordinate FGS and FGS changes with the appropriate GCC and with 

DoD components who operate enduring locations in a country

--- FGS establish compliance requirements for all enduring locations in a country

- DoDI 4715.08, Remediation of Environmental Contamination Outside the United States, 

specifies DoD remediation policy for overseas installations for all enduring locations 

(not contingency locations)

-- Applies to remediation of environmental contamination on DoD installations 

overseas (not off-installation or at contingency locations)

-- Requires remediation to address a substantial impact to human health and 

safety caused by DoD activity contamination and to comply with applicable IA 

provisions

--- An IA may require remediation not otherwise required by this DoDI (e.g., 

off-installation, when contamination does not pose a substantial impact to 

human health and safety)

-- Authorizes remediation to address environmental contamination from non-DoD 

activities if the contamination poses a substantial impact to health and safety 

(SIHS) or, after DoD approval, when extraordinary circumstances exist not covered by DoDI 4715.08

-- Prohibits the United States from conducting remediation to:

--- Address any off-installation contamination unless required by IA

--- Address contamination at installations DoD has approved for realignment 

(return to host nation), except for remedial measures needed to prevent 

immediate exposure to contamination that poses a SIHS

--- Address contamination at installations after they have been returned to the 

host nation unless an IA requires remediation

--- Serve a symbolic purposes (e.g., to foster good relations)
CHAPTER SIXTEEN Environmental Law 821

- 32 C.F.R. 187, Environmental Effects Abroad of Major Department of Defense Actions, 

requires environmental impact analysis for proposed major federal actions in the 

“foreign commons” and within foreign nations when those actions will do significant 

harm to the environment or protected global resources

-- Actions taken in the course of “armed conflict” are exempt from the requirements 

of 32 C.F.R. 187 as long as the armed conflict continues

-- The need for analysis of some proposed actions is eliminated due to the narrow 

definition of “major federal action,” exclusions and exemptions, and the “significant harm” trigger

-- Different analysis/documentation is required depending on what the proposed 

actions will affect

-- Overseas Environmental Impact Statement (OEIS): Required when the proposed 

action will significantly harm the environment of the global commons

--- “Global commons” are geographic areas outside the jurisdiction of any nation 

(e.g., Antarctica, oceans outside territorial limits)

--- The OEIS is prepared in draft and final versions and must:

---- Address the purpose and need for the proposed action

---- Identify the effects of the proposed action and alternatives to the proposed action

---- Describe the affected environment

---- Provide a comparative analysis of environmental effects

--- No public comments or hearing is required, but the final OEIS must be made 

available to public

--- No decision on the proposed action is allowed until after the final OEIS is 

published
822 The Military Commander and the Law

-- An Environmental Review (ER) or an Environmental Study (ES) is required when 

the proposed action will significantly harm the environment of a foreign nation 

or protected global resource

--- “Protected global resource” is a natural or ecological resource of global importance designated for protection by the President of the United States or, in 

some cases, the Secretary of State

--- The ER is a concise review of important environmental issues raised by a 

proposed action

---- It is a unilateral effort prepared by the DoD Component alone

---- It should include a description of actions by the proponent to improve 

the environment or minimize impact of the proposed action

--- An ES is an analysis of the likely environmental effects of a proposed action

---- It is a joint effort prepared by the DoD Component in cooperation with 

at least one foreign nation or international organization to which the 

United States belongs (e.g., NATO)

---- It should identify significant actions taken by the proponent to either 

avoid harm to the environment or improve the environment

--- No public comments or hearings are required for an ER or ES

--- The ER and ES must be made available to interested federal agencies and, 

upon request, members of the public

--- ER and ES analysis, report, and release/distribution requirements must remain 

flexible to:

---- Enable prompt action

---- Avoid adverse impacts on U.S. relations with foreign nations

---- Avoid sovereignty issues

---- Ensure consideration of national security interests
CHAPTER SIXTEEN Environmental Law 823

--- ER and ES requirements must be complete before the proponent executes 

the proposed action

- DoDI 4715.19, Use of Open-Air Burn Pits in Contingency Operations, applies to contingency locations in place more than 90 days and with more than 100 attached or 

assigned personnel

-- This policy generally discourages use of open-air burn pits except as a short-term 

solution where no other alternative is feasible

-- Burn pits, when used, must be operated in a manner to prevent or minimize risks 

to human health and safety of DoD personnel and, where possible, harm to the 

environment

-- Burn pits are not authorized except in accordance with the solid waste management plan (SWMP) which the operational commander has developed and 

approved

-- The SWMP must prohibit burning of “covered waste” in open air burn pits

--- “Covered waste” includes hazardous waste, medical waste, and a lengthy list 

of specific waste items listed in DoDI 4715.19, pages 11 and 12, which would 

pose a threat to humans or the environment if open-burned

--- SWMP must prohibit burning of covered waste unless:

---- The Commander of the Unified Command determines “no alternative 

disposal” method is feasible and informs DoD of his decision; and

---- DoD notifies Congress of the “no alternative disposal” determination

-- Covered waste may not be disposed in an open-air burn pit longer than 180 

days unless:

--- The Commander of the Unified Command makes a determination “no alternative disposal” method is feasible;

--- The Commander of the Unified Command provides DoD justification for 

continued disposal of covered waste in a burn pit (justification required 

every180 days thereafter to continue); and
824 The Military Commander and the Law

--- DoD notifies Congress of the justification for continued disposal by open 

burning (justification required every180 days thereafter to continue)

-- The Commander of the Combatant Command must include a health assessment 

with the initial notification and all subsequent justification packages sent to DoD

Unified Combatant Command (UCC), DoD Component, and Subordinate Policies

- These policies implement, interpret, and add to DoD requirements. Examples are:

-- United States European Command Instruction (ECI) 4804.1, Environmental Security

-- CENTCOM Regulation (CCR) 200-1, Protection and Enhancement of Environmental 

Quality

-- AFI 32-7091, Environmental Management Outside the United States (publication 

pending)

-- AFCENT Instruction (USAFCENTI) 32-108, Fuel Spill Reporting

-- Environmental Annex to specific Operation Plan (OPLAN), Operation Order 

(OPORD), or other operation directive

- These policies are prohibited from conflicting with or replacing DoD standards. For 

example:

-- USFK Regulation (USFK Reg) 200-1, United States Forces Korea Remediation Regulation cannot conflict with DoDI 4715.08

-- 32 C.F.R. 989 (environmental impact analysis for Air Force actions overseas) does 

not trump 32 C.F.R. 187

- Because there is a current lack of DoD requirements (other than DoDI 4715.19) for 

contingency locations, environmental annexes to applicable OPLANs, OPORDs, or 

other operation directives are the primary sources of environmental requirements 

in these locations

-- UCC and DoD Component policies influence environmental annex contents. 

Examples are:

--- CCR 200-2, CENTCOM Contingency Environmental Standards
CHAPTER SIXTEEN Environmental Law 825

--- AFH 10-222, vol 4, Environmental Considerations for Overseas Contingency 

Operations

--- AFCENT Instruction (USAFCENTI) 32-108, Fuel Spill Reporting

--- USAFE Instruction (USAFEI) 32-7068, Environmental Baseline Surveys for 

Deployed Operations

References

32 C.F.R. Part 187

32 C.F.R. Part 989

DoDI 4165.69, Realignment of DoD Sites Overseas (6 April 2005)

DoDI 4715.05, Environmental Compliance at Installations Outside the United States

(1 November 2013)

DoDI 4715.08, Remediation of Environmental Contamination Outside the United States 

(1 November 2013)

DoDI 4715.19, Use of Open-Air Burn Pits in Contingency Operations (15 February 2011), 

incorporating through Change 3, 3 July 2014

AFI 32-7001, Environmental Management (16 April 2015), incorporating Change 1, 8 April 2016

AFI 32-7091, Environmental Management Outside the United States (18 March 2016)

http://static.e-publishing.af.mil/production/1/af_a4/publication/afi32-7091/afi32-7091.pdf

AFH 10-222, vol 4, Environmental Considerations for Overseas Contingency Operations

(1 September 2012)
826 The Military Commander and the Law

UTILITY LAW

Utility costs are often a large part of the operating cost of federal facilities. The Air Force 

has established the Utility Law Field Support Center (AFLOA/JACE-ULFSC), embedded 

within the AFCEC Energy Directorate (AFCEC/CN), at Tyndall Air Force Base, Florida, to 

assist continental United States (CONUS) commanders in minimizing utility costs. The 

ULFSC assists installations by supporting contracting actions with utility providers, by 

representing Air Force interests in utility rate litigation, and by advising on conservation 

and renewable energy projects.

Methods of Purchasing Utilities

- General Services Administration (GSA) administers areawide contracts for energy 

acquisition

-- Areawide contracts are convenient and are modifiable to address specific base 

issues

-- GSA areawide contracts are found at http://www.gsa.gov/portal/content/184627

- Federal Acquisition Regulation (FAR) Part 41 individual installation contracts are the 

most common utility purchase method

- Interagency Agreements under the Economy Act (31 U.S.C. § 1535) and utility service 

provider tariff rate purchases are other, less common, methods of utility acquisition

Utility Litigation Challenging Rate Increases

- The ULFSC represents Air Force interests in utility rate cases (usually triggered by 

proposed rate increases)

- Bases should notify AFCEC any time they become aware of potential or actual rate 

increases. Even periodic small increases can have significant long-term impact.

Conservation and Renewable Energy Projects

- Installation energy conservation goals can be met through various vehicles

-- An Energy Savings Performance Contract (ESPC) is a collaboration between a 

federal agency and a contractor

--- Task orders are issued under a Department of the Army or Department of 

Energy contract
CHAPTER SIXTEEN Environmental Law 827

--- The energy provider will identify potential energy savings, design/propose 

a project, and execute the project using third-party financing

--- ESPCs must contain a guarantee the project will result in measurable and 

verifiable energy cost savings throughout the term of the contract

--- Cost savings are used to pay the contractor

-- Utility Energy Service Contracts (UESC) are performed by local utility service 

providers

--- Service providers make Air Force customers aware of available energy-saving 

initiatives (e.g., energy-saving lighting initiatives) through on-site visits, pamphlets, or proposals

--- UESCs must be competitively bid when there are two or more providers

--- UESCs should include a guarantee of energy savings to the installation

- Renewable energy projects, such as solar arrays and wind turbines, may lower energy 

costs

-- Under a power purchase agreement (PPA), an installation leases land to a renewable energy generation developer and contracts to purchase energy produced 

by the project

--- For cost effectiveness, project energy rates must be less than preexisting rates

--- PPAs may assist installations in meeting federal renewable energy goals

-- Enhanced use leases (EUL) involve a land lease to a developer who builds a renewable energy project on the leased land

--- The installation receives money or in-kind consideration for the lease

--- The installation does not buy power directly from the project

--- EULs may help meet certain federal renewable energy goals, however, installations do not retain renewable energy credits from the project
828 The Military Commander and the Law

Assistance

- Utility acquisition matters can be very complex. Installations should notify AFCEC of 

energy rate increases and seek assistance on utility matters.

-- The 24-hour AFCEC reach-back support center is available at (850) 283-6995/DSN 

523-6995 or http://www.afcec.af.mil

-- The ULFSC is available at (850) 283-6347/DSN 523-6347 or ulfsc.tyndall@us.af.mil 

References

Economy Act, 31 U.S.C. 1535

48 C.F.R. Part 41 

AFI 32-1061, Providing Utilities to U.S. Air Force Installations (27 January 2016), corrective actions 

applied on 31 March 2016 
829

Introduction to Operations Law ......................................................................................................830

The Law of War / the Law of Armed Conflict...............................................................................832

Rules of Engagement and Rules for the Use of Force ..............................................................837

International Human Rights Law.....................................................................................................845

International Law and International Agreements.....................................................................848

Deployed Fiscal Law.............................................................................................................................852

Intelligence Oversight.........................................................................................................................856

Foreign Criminal Jurisdiction............................................................................................................864

Defense Support of Civil Authorities..............................................................................................869

Small Unmanned Aircraft Systems..................................................................................................875

CHAPTER SEVENTEEN: INTERNATIONAL 

17

AND OPERATIONS LAW
830 The Military Commander and the Law

INTRODUCTION TO OPERATIONS LAW

Since 1947, the mission of the Air Force has included the ability to “fly and fight.” When 

called upon to provide the nation’s air power, Airmen conduct those operations in accordance with U.S. and international law, to include the law of war (LoW) (also known as 

the law of armed conflict (LOAC)). This respect for the rule of law is a fundamental part 

of who we are as the world’s greatest Air Force and as a nation. Compliance with the 

rule of law is not only an end in and of itself. It is a strategic and operational imperative. 

Failure to comply with the law undermines the legitimacy of U.S. military operations (e.g., 

Abu Ghraib abuses) and can result in mission failure. Commanders must increasingly 

understand the relationship between adherence to the law, and the achievement of 

operational objectives. The following provides an overview of operations law and the role 

of judge advocates as operations law advisors. This discussion establishes the foundation 

for the remaining sections in this chapter.

Operations Law Defined

- Operations law is defined in AFI 51-108, The Judge Advocate General's Corps Structure, 

Deployment, and Operational Support, as “[t]he domestic, foreign and international 

law associated with the planning and execution of military operations in peacetime 

or hostilities...[it] is the application of law to a specific mission of the supported Air 

Force unit.” AFI 51-108, The Judge Advocate General’s Corps Structure, Deployment, and 

Operational Support (9 October 2014).

- Topics normally associated with operations law include legal bases for the use of 

force, LoW, rules of engagement (ROE), and international agreements. However, as 

the definition within AFI 51-108 makes clear, operations law encompasses any area 

of the law impacting a commander’s ability to plan and successfully execute his or 

her unit’s mission, such as contract and fiscal law, and military justice.

Role of Judge Advocates

- Regardless of formal duty title, all judge advocates practice operations law on a 

daily basis. The Air Force, like other Services, continues to operate in an increasingly 

complex environment around the world, demanding nothing less than the very best 

in legal capability. Operations law attorneys are mission-focused and provide commanders with options and recommendations to enable mission accomplishment. 

Operations law is a mindset as much as an area of practice.
CHAPTER SEVENTEEN International and Operations Law 831

- Legal support to Air Force commanders is critical to mission success. Proper legal 

counsel enhances commanders’ successful decision-making ability, aiding in mission 

success. A common misconception is that judge advocates practice operations law 

only when deployed overseas. This is untrue. Judge advocates have provided crucial 

legal support to command during the full range of domestic operations, including 

the 9/11 attacks, Hurricane Katrina, the flooding of the northern Red River Valley, and 

combating wildfires in California. These and other similar events have only increased 

the need for judge advocates to provide such support. This is in no small part due 

to the fact that military operations in the homeland can be politically and legally 

complex. Successful commanders are those who demand close coordination with 

their servicing staff judge advocate (SJA).

- Technological, doctrinal, and organizational innovations have also given rise to geographically distributed operations controlled from the United States (e.g., remotely 

piloted aircraft operations and cyber operations). Installation commanders and their 

SJAs must ensure sufficient legal support is available for these operations.

- One key to success for commanders is to ensure judge advocates are thoroughly 

integrated into unit planning and execution of military operations

References

AFI 51-108, The Judge Advocate General’s Corps Structure Deployment, and Operational Support

(9 October 2014)

Air Force Doctrine Annex 1-04 (4 March 2012)

Air Force Operations & The Law (2014), http://www.afjag.af.mil/shared/media/document/AFD100510-059.pdf
832 The Military Commander and the Law

THE LAW OF WAR / THE LAW OF ARMED CONFLICT

Understanding the object and nature of war is important in understanding and applying 

the law of war (LoW) (also known as the law of armed conflict (LOAC) or international 

humanitarian law (IHL). LoW treaties, such as The Hague and Geneva Conventions, have 

been negotiated with the understanding that suffering and destruction are unavoidably 

part of war. But these treaties and the principle of humanity seek to reduce unnecessary 

suffering and destruction. As recent events have taught us, we cannot assume that every 

Airman is fully aware of all his or her rights and responsibilities under the LoW, also known 

as the law of armed conflict (LOAC), or international humanitarian law (IHL). Now more 

than ever, in the myriad of operational situations in which Air Force units are involved, 

COMMANDERS MUST ENSURE their personnel are trained and comply with the 

LoW. Judge advocates are available to assist commanders with this responsibility.

What Is LoW?

- LoW is the part of international law that regulates the resort to armed force; the 

conduct of hostilities and the protection of war victims in both international and noninternational armed conflict; belligerent occupation; and the relationships between 

belligerent, neutral, and non-belligerent States

- LoW has two main sources: (1) Customary international law arising out of the conduct 

of nations during hostilities, which is binding upon all nations; and (2) treaty law 

arising from international agreements, which is only binding upon those nations 

that are parties to the pertinent agreements

- LoW treaty law is generally divided into two overlapping areas: (1) Geneva Law, named 

for treaty negotiations held over the years at Geneva, Switzerland, and (2) Hague Law, 

named for treaty negotiations held over the years at The Hague, Netherlands

-- Geneva Law: Generally consists of four treaties known as the 1949 Geneva 

Conventions and are concerned with protecting persons involved in conflicts 

(wounded and sick; wounded, sick and shipwrecked at sea; POWs; and civilians)

--- The Geneva Conventions are supplemented by two protocols negotiated in 

1977, Additional Protocol I (AP I) addresses international armed conflicts, and 

Additional Protocol II (AP II) addresses non-international armed conflicts. The 

United States signed AP I and stated two understandings. AP I is a significant 

law of war treaty that the United States has decided not to ratify. The United 

States signed AP II and stated one understanding. Although the United States 

is not a Party to AP I or AP II, reviews have concluded that many provisions 

of these Protocols are consistent with long standing U.S. practice but that 
CHAPTER SEVENTEEN International and Operations Law 833

no determination has been made about whether any of these provisions 

reflect customary international law. The United States is a party to the third 

additional protocol (AP III) which recognizes a red crystal as an additional 

distinctive protective emblem adopted in 2005.

-- Hague Law: Is concerned mainly with the means and methods of warfare (e.g., 

lawful and unlawful weapons, targeting)

--- The Hague Peace Conferences of 1899 and 1907 resulted in the Hague Conventions of 1907; those conventions addressed warfare on land and sea, 

established bans on certain types of war technology and established a court 

to settle international disputes

--- Efforts in 1922-1923 to create the Hague Rules of Air Warfare resulted in draft 

rules that never took effect, but are today viewed as reflecting guidelines for 

proper conduct

Basic Legal Principles of LoW

- Military Necessity:

-- Definition: Justifies the use of all measures needed to defeat the enemy as quickly 

and efficiently as possible that are not prohibited by the law of war

-- The principle of military necessity permits attacks on military objectives, i.e., 

any objects which by their nature, location, purpose, or use make an effective 

contribution to military action and whose total or partial destruction, capture, or 

neutralization, in the circumstances ruling at the time, offers a definite military 

advantage. Examples include troops, bases, supplies, lines of communications, 

and headquarters.

- Distinction:

-- Definition: Obliges parties to a conflict to distinguish principally between the 

armed forces and the civilian population, and between unprotected and protected objects

-- Military force may be directed only against military objectives, and not against 

civilian objects

--- Civilian objects are such objects as places of worship, schools, hospitals, and 

dwellings
834 The Military Commander and the Law

--- Civilians can lose their protected status if they directly participate in hostilities. Civilian objects can lose their protected status if they are used for a 

military purpose, such as to shield military personnel and objectives.

--- Attacks may not be directed against civilians or civilian objects based on 

merely hypothetical or speculative considerations regarding their possible 

current status as a military objective. In case of doubt whether a civilian is 

directly participating in hostilities or whether a civilian object is being used 

for a military purpose, commanders must reach a conclusion in good faith 

and based on their assessment of the information available to them at the 

time.

-- Application of the principle of distinction to military operations is understood to 

prohibit the following types of actions:

--- Intentional attack of persons hors de combat (outside of combat)

--- Directing force against civilian objects rather than military objectives

--- Deliberately attacking civilians not taking a direct part in hostilities

-- However, a defender has an obligation to separate civilians and civilian objects 

(either in the defender’s country or in an occupied area) from military objectives. 

Failure to separate them may lead to a loss of their protected status.

- Proportionality:

-- Definition: The loss of civilian life and damage to civilian property incidental 

to attacks must not be excessive in relation to the concrete and direct military 

advantage expected to be gained. Thus, those who plan military operations must 

take into consideration the extent of civilian destruction and probable casualties 

that will result and, to the extent consistent with the necessities of the military 

situation, seek to avoid or minimize such casualties and destruction.

-- The concept does not apply to military facilities and forces, which are legitimate 

targets anywhere and anytime. However, individual military personnel may be 

in a protected status (e.g., chaplains, medics, wounded, sick, shipwrecked at sea, 

surrendering, or aircrews parachuting from disabled aircraft).
CHAPTER SEVENTEEN International and Operations Law 835

-- Attackers must take feasible precautions to reduce the risk of harm to the civilian 

population and other protected persons and objects. Feasible precautions are 

those that are practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations. 

For example, if a commander determines that taking a precaution would result 

in a risk of failing to accomplish the mission or an increased risk of harm to their 

own forces, then the precaution would not be feasible and would not be required.

- Humanity:

-- Definition: This principle FORBIDS the infliction of suffering, injury, or destruction unnecessary for the accomplishment of legitimate military purposes

- Honor:

-- This principle (also called chivalry) addresses the waging of war in accord with 

well- recognized formalities and courtesies, requiring a certain amount of fairness 

in offense and defense and a certain mutual respect between opposing forces

-- It permits lawful ruses, such as camouflage false radio signals, and mock troop 

movements

-- It FORBIDS treacherous acts (perfidy). These involve misuse of internationally 

recognized symbols or status to take unfair advantage of the enemy, such as false 

surrenders, placing anti-aircraft artillery in hospitals, and misuse of the red cross, 

red crystal, or the red crescent.

Conclusion

- Compliance with the LoW is critical to mission success. Proper legal counsel enhances 

commanders’ successful decision-making ability, aiding in mission success. One key 

to success for commanders is to ensure judge advocates are thoroughly integrated 

into unit planning and execution of military operations so that commanders are 

aware of their options and recommendations to enable mission accomplishment 

and compliance with the LoW.
836 The Military Commander and the Law

References

Geneva Convention for the Protection of War Victims, Aug. 12, 1949, 6 U.S.T. 3217

DoDD 2311.01E, DoD Law of War Program (9 May 2006), with Change 1, 15 November 2010, 

certified current 22 February 2011

Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 5810.01D, Implementation of the DoD 

Law of War Program (30 April 2010)

Department of Defense Law of War Manual (June 2015)

AFPD 51-4, Compliance with the Law of Armed Conflict (4 August 2011)

AFI 36-2201, Air Force Training Program (13 September 2010), incorporating through Change 3, 7 

August 2013, including ), including AFGM2015-10-01, Expeditionary Readiness, 16 October 

2015 

AFI 51-401, Training and Reporting to Ensure Compliance with the Law of Armed Conflict 

(5 September 2014)

Air Force Operations & The Law (2014), Ch. 2 & 16, http://www.afjag.af.mil/shared/media/

document/AFD-100510-059.pdf
CHAPTER SEVENTEEN International and Operations Law 837

RULES OF ENGAGEMENT AND RULES FOR 

THE USE OF FORCE

This chapter will describe both Rules of Engagement (ROE) and Rules for the Use of 

Force (RUF), the differences between the two sets of rules, their purpose and when 

they apply. In this regard there are standing rules by the Secretary of Defense (SecDef ), 

contained in Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3121.01B, Standing 

Rules of Engagement/ Standing Rules for the Use of Force for U.S. Forces. These are the 

Standing Rules of Engagement (SROE) and Standing Rules for the Use of Force (SRUF). 

It is strongly recommended that all commanders familiarize themselves with CJCSI 

3121.01B as this chapter is not a substitute for that CJCSI. While portions of the SROE 

are classified SECRET and may not be reproduced in this publication, significant portions 

are unclassified, particularly the self-defense policy and procedures.

What Are ROE?

- JP 1-04, Legal Support to Military Operations, defines ROE as “directives issued by 

competent military authority that delineate the circumstances and limitations under 

which United States forces will initiate and/or continue combat engagement with 

other forces encountered.” 

-- ROE deal with the use of force in military operations 

-- ROE are based upon law, government policy, and a host of other political considerations and constraints 

-- ROE are owned by the commander and implemented by the Airmen who execute 

the mission

What Are RUF?

- CJCSI 3121.01B defines RUF as “fundamental policies and procedures governing 

actions to be taken by U.S. forces during all [Department of Defense] (DoD) civil 

support (e.g., military assistance to civil authorities) and routine Military Department 

functions (including Anti-Terrorism/Force Protection (AT/FP) duties) occurring within 

U.S. territory or U.S. territorial seas” 

- It can be seen from this reference that in contrast to ROE, RUF concern the use of force 

by U.S. forces within U.S. territory and outside of military operations. Furthermore, 

unlike ROE, RUF are not generally permissive.
838 The Military Commander and the Law

Purposes of ROE

- ROE is a framework reflecting national policy goals, mission requirements, and the 

Law of War and serves three functions:

-- Provide guidance from commanders (the President, SecDef and subordinate 

commanders) to deployed units on the use of force

-- Provide a control mechanism for the transition from peacetime to armed conflict

-- Provide a mechanism to facilitate planning

- The three functions all emphasize control, which is needed for three purposes (political, military and legal):

-- Political: to ensure that action in the field reflects the national policy objectives 

(for example by restricting the scale of action, target or weapon types to influence international and domestic opinion). Such political concerns include how 

the conflict (and possible escalation thereof) is viewed internationally or with a 

host nation.

-- Military: for commanders to provide permissions to use force and restraints to 

ensure that the application of force furthers the accomplishment of the mission 

(for example by authorizing offensive force and designating target sets, or by 

imposing limits/restricting authorizations to prevent undesired escalation and 

ensure the commander has control over certain uses of force)

-- Legal: to ensure compliance with the law. As ROE is an expression of national 

policy, it often contains greater constraints on action than the law requires. ROE 

can never be more permissive than the law allows. Commanders should be 

familiar with the legal basis for their mission as it will determine what is permissible. Commanders may also formulate ROE to emphasize compliance with 

certain legal principles, such as prohibitions on the destruction of religious or 

cultural property or the minimization of injury to civilians and civilian property.

SROE

- The current SROE came into force on 13 June 2005. Their purpose is to provide implementation and guidance on two important issues:

-- Inherent right of self defense

-- Application of force for mission accomplishment
CHAPTER SEVENTEEN International and Operations Law 839

SROE Applicability

- SROE applies to:

-- All military operations and contingencies outside U.S. territory and outside U.S. 

territorial seas

-- The air and maritime homeland defense mission conducted within U.S. territory 

and territorial seas

Self-Defense in SROE

- Inherent Right of Self-Defense: In accordance with CJCSI 3121.01B, Enclosure A & L, 

unit commanders have an inherent right and obligation to exercise unit self-defense. 

Unless otherwise directed by their commander, individual military members may 

exercise individual self-defense)

- Unit and individual self-defense arises in two circumstances:

-- In response to a use of force which is often referred to as a “hostile act” or

-- In response to an imminent use of force which is often referred to as a “hostile 

intent”. Determining the imminence of a threat will be based on an assessment of 

all the facts and circumstances known to U.S. forces at the time and may be made 

at any level. Imminent does not necessarily mean immediate or instantaneous.

- National Self-Defense: The right of a State to defend itself against armed attack is 

recognized in internal law both individually and collectively (i.e., as part of an alliance 

such as NATO), and enshrined in Article 51 of the UN Charter

-- National self-defense is defined in the SROE as “Defense of the United States, and 

in certain circumstances, U.S. persons and their property, and/or U.S. commercial 

assets from a hostile act or demonstration of hostile intent. Unit commanders 

may exercise National Self-Defense, as authorized in Appendix A to Enclosure A, 

para. 3.”

- Collective Self-Defense: In accordance with CJCSI 3121.01B, Enclosure A, collective 

self-defense is defined as “Defense of designated non-U.S. military forces and/or 

designated foreign nationals and their property from a hostile act or demonstrated 

hostile intent. Only the President or SecDef may authorize collective self-defense.” 
840 The Military Commander and the Law

- Procedures in Self-Defense: All necessary means available and all appropriate actions 

may be used in self-defense. Four guidelines apply:

-- De-escalation: When time and circumstances permit, the forces committing 

hostile acts or demonstrating hostile intent should be warned and given the 

opportunity to withdraw or cease threatening actions

-- Necessity: Such necessity exists when a hostile act occurs or when a force demonstrates hostile intent. When such conditions exist, use of force in self-defense 

is authorized while the force continues to commit hostile acts or exhibit hostile 

intent.

-- Proportionality: The force used may exceed the means and intensity of the hostile 

act or hostile intent, but the nature, duration and scope of force used should not 

exceed what is required. This principle of proportionality should not be confused 

with attempts to minimize collateral damage during offensive operations.

-- Pursuit in Self-Defense: Self-defense includes the authority to pursue and engage 

forces that have committed a hostile act or demonstrated hostile intent, if those 

forces continue to commit hostile acts or demonstrate hostile intent)

ROE for Mission Accomplishment

- SROE provides guidance on the use of force for mission accomplishment. Supplemental measures can be produced to provide for mission specific ROE.

- The SROE are designed to be permissive in nature. Therefore, unless a specific weapon 

or tactic requires SecDef or combatant commander approval, or unless a specific 

weapon or tactic is restricted by an approved supplemental measure, commanders 

may use any lawful weapon or tactic available for mission accomplishment.

- Declared Hostile Force: SROE permits appropriate U.S. authority to declare any civilian, paramilitary or military force or terrorist(s) as a declared hostile force. U.S. forces 

may engage declared hostile forces regardless of whether such forces have committed a hostile act or demonstrated hostile intent.

Critical Factors that Influence the Promulgation of ROE

- Domestic law and regulations (e.g., Executive Order 11850, Enunciation of Certain 

Uses in War of Chemical Herbicides and Riot Control Agents, limiting use of riot control 

agents)
CHAPTER SEVENTEEN International and Operations Law 841

- National security policy (protect interests of the United States and allies)

- Operational concerns (protect our forces and those of our allies)

- International law (Law of War (LoW), Status of Forces agreements (SOFAs), UN Security 

Council Resolutions)

-- LoW is the part of international law that regulates the conduct of armed hostilities 

(violations are punishable under the UCMJ)

-- ROE have to comply and can NEVER authorize an act that is forbidden under the 

LoW. Essentially, ROE are always either equal in restrictiveness or more restrictive 

than the LoW. DoD policy is to comply with the LoW for all military operations 

regardless of the nature of the conflict.

Specific Guidance for U.S. Forces Operating With Multinational Forces

- U.S. forces assigned under operational control (OPCON) or tactical control (TACON) 

of a multinational force (MNF) will follow the ROE of the MNF for mission accomplishment, if authorized by order of the SecDef U.S. forces retain the right of self-defense. 

Apparent inconsistencies between the right of self-defense contained in U.S. ROE 

and the ROE of the MNF will be submitted through the U.S. chain of command for 

resolution. While a final resolution is pending, U.S. forces will continue to operate 

under U.S. ROE.

- When U.S. forces are under U.S. OPCON or TACON, operating in conjunction with 

a MNF, reasonable efforts will be made to develop common ROE. If common ROE 

cannot be developed, U.S. forces will operate under all applicable U.S. ROE and the 

MNF forces will be informed of this fact.

Considerations When Preparing ROE

- Different ROE must be drafted for different missions (e.g., information operations, 

counterdrug support operations, noncombatant evacuation operations, domestic 

support operations, and cyber, maritime, land, air, and space operations). In creating 

such mission-specific ROE, it is important to ask several questions:

-- First, what is the goal of the President and the SecDef? (e.g., hostage rescue, 

freedom of navigation, destruction of a terrorist training base, humanitarian 

assistance)
842 The Military Commander and the Law

-- Second, in order to carry out that goal, what is the mission? (e.g., conduct a 

show of force, limited or minor attack, establish a no-fly zone, or occupy hostile 

territory)

-- Third, who are our hostile forces, if any?

-- Fourth, who are our allies? (e.g., NATO, coalition partners, UN)

-- Fifth, are there any unique concerns? (e.g., preserving a coalition, avoiding escalation of the conflict)

-- Sixth, what specific topics need not be addressed? (e.g., strategy, doctrine, 

restatements of the law of armed conflict, tactics, and safety-related restrictions)

-- Seventh, who should draft the ROE? (e.g., those familiar with the weapons and 

the systems, keeping in mind that commanders are responsible for the ROE)

-- Eighth, how are ROE disseminated? (e.g., SROE, Special Instructions (SPINS), SRUF, 

joint task force guidance)

Supplemental Measures and Command Guidance

- Although the SROE are fundamentally permissive commanders at all echelons may 

issue supplemental ROE or request approval of supplemental ROE (SROE, Enclosure J). 

The SROE specifies the required approval level for certain types of supplemental measures. Supplemental measures are primarily used to define limits or grant authority 

for the use of force for mission accomplishment. Clarity is the goal.

- Subordinate commanders may issue tactical directives or other forms of command 

guidance to clarify the application of the governing ROE/RUF for members of their 

command

-- If a commander’s guidance further restricts approved ROE, that commander is 

obligated to notify SecDef, as soon as practical of any imposed restriction

- In order to ensure compliance with the Law of War in the application of force under 

ROE instructions have been promulgated by the Chairman of the Joint Chiefs of Staff 

applicable to the Services and Combatant Commands. These include the manner 

in which targets are developed and selected for engagement, how it is determined 

what facilities, entities or persons may not be struck, the methodology and mitigation 

to be used when considering collateral damage when planning an attack, who may 

carry out such assessments and who may authorize engagements.
CHAPTER SEVENTEEN International and Operations Law 843

SRUF

- In contrast to SROE, the SRUF are not designed to be permissive. Specific weapons 

and tactics not approved within the SRUF require SecDef approval.

- SRUF apply to:

-- Actions taken by U.S. commanders and their forces during all DoD civil support 

and routine Military Department functions (including AT/FP duties) occurring 

inside U.S. territory or territorial seas

-- Land-based homeland defense missions occurring within U.S. territory

-- DoD forces, civilians and contractors performing law enforcement and security 

duties at all DoD installations (including those outside U.S. territory)

SRUF Self-Defense

- Outside of military operations, U.S. forces may use force only in self-defense

- Inherent Right of Self-Defense: Unit commanders have an inherent right and obligation to exercise unit self-defense. Unless otherwise directed by their commander, 

individual military members may exercise individual self-defense.

- Unit and individual self-defense arises in two circumstances:

-- In response to a use of force which is often referred to as a “hostile act” or

-- In response to an imminent use of force which is often referred to as a “hostile 

intent”. Determining the imminence of a threat will be based on an assessment of 

all the facts and circumstances known to U.S. forces at the time and may be made 

at any level. Imminent does not necessarily mean immediate or instantaneous.

Mission Specific RUF

- Commanders may submit requests to the SecDef for mission specific RUF if required. 

Such mission specific RUF may be requested for tasks that due to their distinctive 

nature require the use of different weapons or tactics not permitted by SRUF.

- Such mission specific RUF may also be tailored to meet the challenges presented 

by developing threats (e.g., active shooters on installations) or developing technology (e.g., remote piloted aircraft) by altering the weapons or tactics available for 

employment
844 The Military Commander and the Law

References

Charter of the United Nations, Art. 51 (26 June 1945)

DoDD 2311.01E, DoD Law of War Program (9 May 2006), incorporating Change 1, 

15 November 2010

Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3121.01B, Standing Rules of Engagement 

for U.S. Forces (13 June 2005), certified current, 18 June 2008

CJCSI 3160.01B, No Strike and the Collateral Damage Estimation Methodology

(11 December 2015)

CJCSI 3370.01A, Target Development Standards (17 Oct 2014)

CJCSI 5810.01D, Implementation of the DoD Law of War Program (30 April 2010)

Joint Publication (JP) 1-04 Legal Support to Military Operations (4 March 2012)

JP 1-02, Department of Defense Dictionary of Military and Associated Terms (8 November 2010), 

as amended through 15 February 2016
CHAPTER SEVENTEEN International and Operations Law 845

INTERNATIONAL HUMAN RIGHTS LAW

International Human Rights Law (IHRL) is the body of law focusing on the protection of 

life and dignity of human beings. In contrast to most areas of international law, IHRL is 

concerned with the rights of individuals rather the rights of sovereign states. It imposes 

obligations upon states to protect the life and dignity of individuals. It is the policy and 

practice of the United States Government to respect and implement its obligations under 

the international human rights treaties to which it is a party. It is also U.S. policy that the 

prevention of mass atrocities and genocide is a core national security interest and core 

moral responsibility.

Law of War (or Law of Armed Conflict) and IHRL

- The U.S. position is that the law of war (LoW) and IHRL are separate bodies of law. 

However, to the degree that both can be applied without conflict, the protections of 

both the LoW and IHRL should be applied during military operations (in peacetime 

and in conflict).

- In military operations where provisions of the LoW and IHRL seem to conflict, the 

provisions of the LoW will prevail over IHRL. This includes the conduct of hostilities 

and the protection of persons involved in armed conflict. Advice should be sought 

from Judge Advocates if there is any doubt about the applicable law.

- Commanders should be aware that some coalition partners may be subject to different IHRL obligations. Coalition partners may be subject to different treaty obligations 

and may have different interpretations of the law and the scope of its application 

in military operations. For example, the European Court of Human Rights has ruled 

that aspects of the European Convention on Human Rights apply to a party’s military 

forces serving abroad and during armed conflict.

IHRL Obligations

- The LoW directly incorporates many core human rights protections. Per DoDD 

2311.01E, DoD Law of War Program, the DoD shall apply the LoW in all military 

operations.

-- The United States accepts Article 75 of Additional Protocol I to the 1949 Geneva 

Conventions as reflective of U.S. policy and practice. This article applies to persons 

who fall under the power of the United States during international armed conflict, 

and at a minimum (unless other LoW provisions offer greater protection):
846 The Military Commander and the Law

--- Prohibits adverse distinction of those in the United States’ power based on 

race, color, sex, language, religion or belief, political or other opinion, national 

or social origin, wealth, birth or other status, or other similar criteria

--- Prohibits violence to their life, health, or physical or mental well-being (in 

particular murder, torture, corporal punishment, and mutilation)

--- Prohibits outrages upon personal dignity, to include forced prostitution, any 

form of indecent assault, the taking of hostages, collective punishments, and 

threats to commit any of the above acts

--- Guarantees that those arrested, detained, or interned for actions related to 

the conflict will be informed of the reason for the actions taken

--- Guarantees provisions for fundamental fairness at any court, hearing, or 

tribunal

--- Provides that detained women will be held separate from detained men, and 

will be immediately supervised by women

-- Common Article 3 of the 1949 Geneva Conventions applies to non-international 

armed conflicts. It provides similar protections for civilians and those persons no 

longer taking part in the conflict.

- IHRL obligations may arise out of U.S. treaty law or customary international law, while 

there is no definitive list of these provisions, the following acts are prohibited:

-- Genocide

-- Slavery

-- Murder or forced disappearance

-- Torture or other cruel, inhuman, or degrading treatment or punishment

-- Prolonged arbitrary detention

-- Systemic racial discrimination

-- Hostage taking

-- Punishment without fair trial
CHAPTER SEVENTEEN International and Operations Law 847

Obligations to Prevent or Punish Human Rights Violations

- Commanders have an obligation to ensure that forces under their command do not 

commit human rights breaches. Such violations may be punishable under the UCMJ, 

the War Crimes Act, or under other federal law.

- U.S. forces should recognize that enemy forces, partner states, or other parties in an 

area of military operations may commit human rights violations

- If U.S. forces become aware of human rights violations committed by U.S. forces, 

enemy forces, or other parties, this should be reported up the chain of command as 

soon as possible

- Prior to any forceful intervention to stop IHRL violations, U.S. forces must ensure that 

their actions are consistent with the rules of engagement (ROE) or rules for the use 

of force (RUF) for the operation

-- Under the Standing Rules of Engagement (SROE), collective self-defense of nonDepartment of Defense (DoD) persons or the affirmative defense of others would 

not be authorized unless for the protection of previously designated persons or 

groups. Commanders should seek prior authorization before acting.

-- Under the Standing Rules for the Use of Force (SRUF), the use of deadly force 

would be authorized when reasonably necessary to prevent an imminent threat 

of life or serious bodily harm to civilians. However, the scope of application of 

the SRUF is narrow.

References

War Crimes Act of 1996, 18 U.S.C. § 2441

PSD-10, Presidential Study Directive on Mass Atrocities (4 August 2011)

Executive Order 13107, Implementation of Human Rights Treaties, 63 Fed. Reg, 68,991 

(15 December 1998)

CJCSI 3121.01B, Standing Rules of Engagement/Standing Rules for the Use of Force for U.S. 

Forces (3 June 2005)

DoDD 2311.01E, DoD Law of War Program (9 May 2006), incorporating Change 1, 

15 November 2010

DoD Law of War Manual (12 June 2015)
848 The Military Commander and the Law

INTERNATIONAL LAW AND INTERNATIONAL 

AGREEMENTS

International Law

- International law consists of rules and principles dealing with the conduct of nations 

(often referred to as “states”) and international organizations in their relations with 

individuals, other international organizations, or other states

- International law is routinely applied by international tribunals as well as domestic 

courts. But, international law is not relevant solely in judicial proceedings. 

-- States rely on it in their diplomatic relations, in their negotiations, and in their 

policy making

-- States defend their actions and policies and challenge the conduct of other states 

by referencing the authority of international law

- To the extent that international law is perceived as “law” by the international community, it imposes restraints on the behavior of states and affects their decision-making 

process

- Air Force commanders should be familiar with international law concepts since those 

concepts impact mission success stretching from the stationing of U.S. forces abroad 

to regulating air travel, and ultimately governing the use of force in relations between 

States and in the conduct of hostilities

Two Main Sources of International Law: International Agreements and 

Customary Law

- International Agreements: A broad category of mostly written, but sometimes oral, 

agreements entered into by authorized representatives of the parties to the agreement, with each party being either a state or a recognized international organization. 

In very limited and specific circumstances, Air Force commanders may have authority 

to negotiate and conclude international agreements in accordance with AFI 51-701, 

Negotiating, Concluding, Reporting, and Maintaining International Agreements.

-- The parties enter into commitments involving the subject matter of the agreement, and agree that international law shall govern the terms of the agreement

-- International law does not distinguish between treaties and international agreements, both of which are viewed as binding
CHAPTER SEVENTEEN International and Operations Law 849

-- International agreements are called by many names, to include treaty, convention, covenant, pact, protocol, status of forces agreement (SOFA), executive 

agreement, memorandum of understanding (MOU), memorandum of agreement 

(MOA), etc. Whatever their designation, all such agreements have the same status 

under international law.

-- International agreements to which the United States is a party are part of U.S. 

law, equivalent in authority to a federal statute, if its provisions are deemed selfexecuting or have been implemented by other federal legislation

- Customary Law: International law resulting from the general and consistent practice 

of nations which they follow due to a sense of legal obligation. This would not include 

practices that states generally follow but feel legally free to disregard. In determining 

whether a state considers a practice or custom to be customary law, positive evidence 

must exist that the state (1) considers itself legally obligated to follow the practice or 

custom, and (2) actually follows the practice or custom.

-- Customary law is also called international custom and customary international 

law. The Supreme Court has ruled that customary international law is part of 

U.S. law, as long as it does not conflict with a pre-existing federal executive or 

legislative act.

-- Customary law may take centuries to evolve, or it may be formed very quickly. 

Examples include:

--- Outer Space Overflight: Prior to the 1957 Sputnik flight, nations had to seek 

consent before overflying the territory of other nations. No nation objected 

to Sputnik’s historic overflight which evolved into the customary law which 

states that a nation’s space vehicles may pass over the territory of other 

nations while in outer space without seeking prior consent. This principle 

was ultimately incorporated into the 1967 Outer Space Treaty.

--- Law of Aerial Warfare: Practices between warring states on land over years 

evolved into customary principles of the law of war (e.g., necessity, distinction, and proportionality), which further evolved by state practice to the 

distinctive aspects of aerial warfare and more specifically, customary rules 

relating to interception, diversion, search, and capture of enemy and neutral 

aircraft during armed conflict

--- Law of the Sea: Although the United States is not a party to the UN Convention 

on the Law of the Sea, it considers the Convention’s provisions on freedom of 

navigation and overflight as reflecting customary international law binding 

upon all nations
850 The Military Commander and the Law

International Agreements in the United States Air Force

- AFI 51-701 generally regulates this area for all Air Force personnel

-- Air Force individuals seeking to negotiate and conclude international agreements 

must first secure approval from the Secretary of the Air Force or designee, and 

may only negotiate and conclude international agreements on matters within 

their authority and responsibility

-- With this firmly in mind, be careful that your own words or conduct do not lead 

your foreign counterpart to believe that YOU are entering into an international 

agreement

-- This can occasionally be challenging, as the definition of an international agreement is fairly broad. Under AFI 51-701, an international agreement is any agreement concluded with one or more foreign governments (including their agencies, 

instrumentalities, or political subdivisions) or with international organizations, 

that:

--- Is signed or agreed to (oral agreements can be binding), by personnel of any 

DoD Component, or by representatives of the Department of State, or from 

other departments or agencies of the U.S. Government

--- Signifies the intention of the parties to be bound in international law, and

--- Is denominated as an international agreement or as a memorandum of 

understanding, memorandum of agreement, memorandum of arrangements, exchange of notes, exchange of letters, technical arrangement, protocol, note verbale, aide-mémoire, agreed minute, plan, contract, arrangement, 

statement of intent, letter of intent, statement of understanding, standard 

operating procedure, CONPLAN, or any other name connoting a similar legal 

consequence

-- The definition of “negotiation” is similarly broad under AFI 51-701, attachment 1

--- Communication by any means of a position or offer

--- On behalf of the United States, DoD, or of any officer or organizational element thereof
CHAPTER SEVENTEEN International and Operations Law 851

--- To an agent or representative of a foreign government

--- In such detail that acceptance would result in an international agreement 

(includes provision of a draft agreement or discussion concerning a draft 

document, whether or not titled “agreement”)

Bottom Line

-- Don’t do anything that might be construed as a negotiation unless you have 

received advance authority

--- Commanders do not have any independent power to negotiate international 

agreements. Any power to do so arises from a delegation of the President’s 

executive power. There must be a specific grant of authority delegated to the 

commander to permit the making of such an agreement.

--- DoDD 5530.03 & AFI 51-701, International Agreements, and AFI 51-701: Air 

Force personnel will not make any unilateral commitment to any foreign 

government or international organization (either orally or in writing), tender 

to a prospective party thereto any draft of a proposed international agreement, nor initial or sign an international agreement, before obtaining legal 

concurrence and the required approval to proceed

References

Restatement of the Law, Third, Foreign Relations Law of the United States (1987)

DoDD 5530.3, International Agreements, 11 June 1987, certified current 21 Nov 2003

AFI 51-701, Negotiating, Concluding, Reporting, and Maintaining International Agreements 

(16 August 2011)

Air Force Operations & The Law (2014), http://www.afjag.af.mil/shared/media/document/AFD100510-059.pdf
852 The Military Commander and the Law

DEPLOYED FISCAL LAW

In an era marked by a rapidly-expanding operational tempo, commanders must be aware 

of the rules regarding the spending of appropriated funds in their Area of Responsibility 

(AOR). Fiscal law is often a complex area of law to navigate and can be challenging in 

a contingency environment. One of the basic tenets of fiscal law is that you must have 

specific authority to spend funds BEFORE any funds can be obligated. In a deployed 

environment, the basic rules of fiscal law still apply. There is no deployed exception to 

fiscal law! Since statutory authority, threshold amounts, and funding levels can fluctuate 

from year to year, commanders should consult with financial management (FM) and 

judge advocate (JA) personnel on fiscal law issues.

Overseas Contingency Operations (OCO Funds)

- Congress appropriates funds for the Department of Defense (DoD) specifically for 

designated ongoing contingency operations. From 2001 until 2010, these appropriations were commonly called Global War on Terrorism (GWOT) funds.

- OCO is a special type of funding (could be Operation and Maintenance (O&M) or 

another type of appropriation) requested by DoD and provided by Congress specifically for overseas contingency operations. OCO funds are to be used only for incremental expenses incurred in direct support of a specific contingency operation and 

not for day-to-day “normal” operations.

Military Construction Funding Sources

- In addition to the two primary construction authorities (specified and unspecified 

Military Construction (MILCON), there are other important authorities of which to be 

aware in advising on construction projects in the deployed environment

-- Emergency Construction (10 U.S.C. § 2803): Unobligated MILCON funds for projects not otherwise authorized. These are for projects that are vital to national 

security or to the protection of health, safety, or the environment, and are so 

urgent that they can’t wait until the next MILCON authorization act.

-- Contingency Construction (10 U.S.C. § 2804): The Secretary of Defense (SecDef) 

may authorize MILCON when waiting for the next MILCON authorization act would 

be “inconsistent with national security or national interest.” The expenditure must 

be within the amount appropriated for such purpose, and is normally used on 

extraordinary projects that develop unexpectedly. It may not be used for projects 

denied authorization in previous Military Construction Appropriations Acts.
CHAPTER SEVENTEEN International and Operations Law 853

General Purpose Funds

- Emergency and Extraordinary Expenses (10 U.S.C. § 127): Funding provided to the 

Secretaries of the military departments for unanticipated emergencies or extraordinary expenses, including unanticipated, short-notice construction. Controlled by 

SAF/IA.

-- Official Representation Funds (ORF) (AFI 65-603, Official Representation Funds): A 

subset of 10 U.S.C. § 127 funds, ORF may be used to extend official courtesies, on 

a modest basis, to authorized guests. These courtesies including hosting meals, 

providing entertainment to maintain civic and community relationships, and to 

purchase gifts and mementos for presentation to authorized guests.

- Combatant Commander Initiative Funds (CCIF) (10 U.S.C. § 166a): Enables the Chairman of the Joint Chiefs of Staff to act quickly to support his combatant commanders 

with: (1) force training, (2) contingencies, (3) selected operations, (4) command and 

control, (5) joint exercises, (6), humanitarian and civic assistance, (7) military education and training to military and related civilian personnel of foreign countries, 

(8) personnel expenses of defense personnel for bilateral or regional cooperation 

programs, (9) force protection, and (10) joint warfighting capabilities. Controlled by 

combatant commander.

Training and Equipping of Foreign Forces

- Funding foreign forces is not a proper purpose for using O&M funds. Generally, the 

duty to train and provide assistance to foreign countries rests with the Department 

of State (DOS) under title 22 of the U.S. Code.

- There are two exceptions to the general rule:

-- Training or instruction for foreign forces for the primary purpose of promoting 

interoperability, safety, and familiarization training with U.S. forces, with the overall benefit being to U.S. military forces. This is sometimes called “little ‘t’ training.”

-- Specific authorization from Congress for DoD to obligate defense funding to 

conduct foreign assistance

- Afghanistan Security Forces Fund (2016 NDAA Sec. 1531): Authorizes the SecDef 

to provide certain support to the Afghan security forces, including the provision 

of equipment, supplies, services, training, facility, and infrastructure repair, renovation, construction, and funding. The Commander, Combined Security Transition 

Command-Afghanistan (CSTC-A), controls and administers this fund in Afghanistan.
854 The Military Commander and the Law

- 1206 “Train and Equip” Authority (10 U.S.C. § 2282): Provides funds for equipment, 

supplies, training, defense services, and small-scale military construction activities 

to build the capacity of foreign military forces and national level security forces. The 

approval authority is SecDef with the Secretary of State (SecState) concurrence.

- Iraq Train and Equip Fund (FY 15 NDAA Sec. 1236, as amended by 2016 NDAA Sec. 

1223): Provides funds for training, equipment, logistics, infrastructure repair, renovation, and sustainment to military and other security Forces of or associated with the 

Government of Iraq (GOI). The approval authority is SecDef in coordination with 

SecState.

- Syrian Train and Equip Fund (FY 15 NDAA Sec. 1209, as amended by FY 16 NDAA 

Sec. 1225): Provides funds for training, equipment, supplies, stipends, construction 

of training and associated facilities, and sustainment to vetted Syrian groups and 

individuals. The approval authority is SecDef in coordination with SecState.

- Acquisition and Cross-Servicing Agreements (ACSA) (10 U.S.C. 2342): Bilateral agreements for the reimbursable mutual exchange of Logistic Support, Supplies, and Services (LSSS) from and transfer LSSS to foreign military forces. There are three methods 

of reimbursement: (1) payment in kind; (2) replacement in kind; and (3) equal value 

exchange. Commanders must still use proper appropriated funds for acquiring LSSS 

from foreign forces.

Humanitarian Assistance Funding

- Traditionally, humanitarian assistance (HA) is considered security assistance within 

the realm of the DoS. However, recognizing that the need exists, in 1986 Congress 

enacted DoD’s first statutory authority for HA in 10 U.S.C. § 401.

- Overseas Humanitarian, Disaster, and Civic Aid (OHDACA): A series of interrelated statutes. These statutes include 10 U.S.C. 401 (Humanitarian & Civic Assistance (HCA)), 402 

(Relief Supplies Transportation), 404 (Foreign Disaster Assistance), 407 (Humanitarian 

Demining), 2557 (Excess Non-Lethal Supplies), and 2561 (Humanitarian Assistance).

- Commander’s Emergency Response Program (CERP) (FY16 NDAA Sec. 1211; 2016 

CAA Sec. 9005): CERP is designed to enable local commanders in Afghanistan to 

respond to urgent humanitarian relief and reconstruction by carrying out programs 

that will immediately assist the indigenous population. CERP is intended to be used 

for small-scale projects that, optimally, can be sustained by the local population or 

government.
CHAPTER SEVENTEEN International and Operations Law 855

AOR Specific Guidance

- Many contingency environments have local guidance governing the expenditures 

of funds in that AOR. For example, the Army has the “Money As A Weapons SystemAfghanistan (MAAWS-A)” which provides guidance, processes, and approval thresholds for the expenditure of various types of funds in the AOR.

References

10 U.S.C. § 127

10 U.S.C. § 166a

10 U.S.C. § 401

10 U.S.C. § 2282

10 U.S.C. § 2803

10 U.S.C. § 2804

National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2015, Pub.L. 113-291

NDAA FY 2016, Pub.L. 114-192

The Honorable Bill Alexander, B-213137, 63 Comp. Gen 422 (1984)

AFI 65-603, Official Representation Funds (24 August 2011)
856 The Military Commander and the Law

INTELLIGENCE OVERSIGHT

During periods of our nation’s history, intelligence capabilities were sometimes used in a 

manner that infringed upon the constitutional and privacy rights of United States Persons 

(USP). As a result, an oversight regime consisting of statutes, executive orders (EOs), and 

agency regulations was established to ensure the proper use of intelligence capabilities and the proper conduct of intelligence activities. The Air Force possesses an array 

of intelligence and counterintelligence capabilities designed to provide commanders 

and national leaders with information on foreign nationals, hostile or potentially hostile 

forces or elements, and areas of actual or potential operations. Intelligence collection is 

a specialized mission with tactics, techniques, and procedures that require strict control 

and oversight. The purpose of this chapter is to enable installation-level commanders 

and their staffs to recognize potential legal issues related to intelligence activities.

Intelligence Oversight (IO) Regime 

- Department of Defense (DoD) intelligence oversight regulations and policy are 

grounded in EO 12333, United States Intelligence Activities. The term “intelligence 

activities” refers to all activities that DoD intelligence components are authorized 

to undertake pursuant to EO 12333.

-- There are only two lawfully assigned intelligence mission sets for DoD:

--- Defense-related foreign intelligence (FI); and

---- Title 50, United States Code (U.S.C.), § 3003(2), defines “foreign intelligence” as “information relating to the capabilities, intentions, or activities 

of foreign governments or elements thereof, foreign organizations, or 

foreign persons, or international terrorist activities”

--- Defense-related counterintelligence (CI)

---- Title 50, U.S.C. § 3003(3), defines “counterintelligence” as “information 

gathered, and activities conducted, to protect against espionage, other 

intelligence activities, sabotage, or assassinations conducted by or on 

behalf of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorist activities”
CHAPTER SEVENTEEN International and Operations Law 857

- DoDD 5240.01, DoD Intelligence Activities, implements EO 12333 and establishes 

broad responsibilities of officials and offices across the DoD and establishes as DoD 

policy that all DoD intelligence and counterintelligence activities will be carried out 

pursuant to the authorities and restrictions of the U.S. Constitution, applicable law, 

EO 12333, and other relevant DoD policies

- DoD 5240.1-R, Procedures Governing the Activities of DoD Intelligence Components that 

Affect United States Persons, provides the sole authority by which DoD intelligence 

components may collect, retain and disseminate United States person information 

(USPI) and also contains the structure for reporting possible violations

-- As required by EO 12333, DoD 5240.1-R is signed by both the SecDef and the 

Attorney General of the United States

--- DoD 5240.1-R prescribes how the DoD will carry out its authorized intelligence activity functions while ensuring its activities that affect USPs protect 

the constitutional rights and privacy of such persons

-- DoD 5240.1-R is divided into 15 chapters, called “procedures”

--- Procedure 1, Applicability, sets forth to whom the regulations apply: “DoD 

intelligence components”—specifically listed DoD organizations (including “offices...for the collection of specialized national foreign intelligence 

through reconnaissance programs,” “[t]he Air Force Intelligence Service,” and 

“[t]he counterintelligence elements of the Air Force Office of Special Investigations”), as well as “[o]ther organizations, staffs, and offices, when used for 

foreign intelligence or counterintelligence activities...”

---- The procedures set out in DoD 5240.1-R do not apply to law enforcement 

activities undertaken by DoD intelligence components

----- When the intelligence activities of a DoD intelligence component 

establish a reasonable belief that a crime has been committed, the 

DoD intelligence component concerned shall refer the matter to the 

appropriate law enforcement agency under procedures 12 and 15

----- If the DoD intelligence component is authorized to conduct law 

enforcement activities (e.g., Air Force Office of Special Investigations 

(AFOSI)), it shall investigate under appropriate law enforcement 

authorities and procedures
858 The Military Commander and the Law

--- Procedure 2, Collection, sets forth the “what, when, and how” of DoD intelligence components collecting United States Person Information (USPI)

---- A USP is:

----- A U.S. citizen;

----- An alien known by the DoD intelligence component concerned to 

be a permanent resident alien;

----- An unincorporated association substantially composed of U.S. citizens or permanent resident aliens; or

----- A corporation incorporated in the United States, except for those 

directed and controlled by a foreign government or governments

---- The deliberate collection of USPI by Air Force intelligence components 

must comply with AFI 71-101V4, Counterintelligence, AFI 14-104, Oversight of Intelligence Activities, and the procedures in DoD 5240.1-R

---- Information is considered to be “collected” when:

----- Received for use by an employee of a DoD intelligence component 

in the course of his official duties; and

----- An affirmative act in the direction of use or retention of that 

information (e.g., inclusion in a report or entry into a database) is 

undertaken

--- Procedure 3, deals with the rention of data. Data acquired by electronic means 

is “collected” only when it has been processed into intelligible form. Procedure 3, Rention, governs the kinds of USPI DoD intelligence components may 

knowingly keep without the consent of the person whom the information 

concerns.

---- DoD intelligence components may retain USPI collected pursuant to the 

authority in Procedure 2 or, under certain conditions, USPI incidentally 

obtained in the course of an authorized collection

---- DoD intelligence components may retain USPI for up to 90 days in order 

to determine whether that information may be permanently retained
CHAPTER SEVENTEEN International and Operations Law 859

---- Procedure 3 does not apply to the retention of USPI for administrative 

purposes or USPI required by law to be retained

--- Procedure 4, Dissemination, governs the types of USPI that may be disseminated, without the affected person’s consent, outside the DoD intelligence 

component that collected and retained the information

---- Procedure 4 does not apply to:

----- Dissemination of USPI pursuant to law;

----- Dissemination of USPI collected solely for administrative purposes; 

or

----- Dissemination of USPI pursuant to a court order that imposes controls upon such dissemination

--- Procedures 5-10 address special collection techniques

---- Procedure 5 implements the Foreign Intelligence Surveillance Act

---- Procedure 6 governs concealed monitoring

---- Procedure 7 governs nonconsensual physical searches

---- Procedure 8 governs searches and examinations of mail

---- Procedure 9 governs physical surveillance

---- Procedure 10 governs undisclosed participation in organizations

--- Procedure 11 deals with the procurement of goods and services by DoD 

intelligence components within the United States by contracting or other 

similar arrangements with USPs

--- Procedure 12 establishes the requirements for the DoD intelligence community to cooperate with, and assist, law enforcement agencies

--- Procedure 13 prohibits the DoD intelligence community and those acting on 

its behalf from experimenting on human subjects for intelligence purposes 

without informed consent from the subject of the experimentation
860 The Military Commander and the Law

--- Procedure 14 sets forth the responsibilities of DoD intelligence component 

employees to conduct intelligence activities in accordance with applicable 

rules, regulations, and policy and requires DoD intelligence components to 

ensure employees are trained on the limits of the authorities under which 

intelligence activities are conducted as well as the procedures applicable to 

those activities

--- Procedure 15 establishes procedures for identifying, investigating, and 

reporting conduct constituting or related to an intelligence activity that may 

violate the law, any EO or Presidential directive, or applicable DoD policy

---- DTM 08-052, DoD Guidance for Reporting Questionable Intelligence Activities and Significant or Highly Sensitive Matters, supplements Procedure 15

----- A “questionable intelligence activity” is an intelligence activity that 

may be unlawful or contrary to EO, Presidential directive, or applicable DoD policy governing that activity

----- A “significant or highly sensitive matter” is a development or circumstance involving an intelligence activity or intelligence personnel 

that could impugn the reputation or integrity of the DoD intelligence community or otherwise call into question the propriety of 

an intelligence activity

---- Air Force agencies, units and personnel must report any questionable 

activity or highly sensitive matter to SAF/GC and their servicing or higher 

headquarters legal office

Intelligence Oversight Analytical Framework

- IO Conceptual Equation: (Lawful Mission) + (Authority) = Lawful Intelligence Activity

- Most legal issues involving intelligence activities can be boiled down to a four step 

analysis:

-- Is the Proposed Collection an Intelligence Activity?

--- Determining when the collection of data is considered the gathering of 

intelligence is the first step in analyzing any potential intelligence law issue
CHAPTER SEVENTEEN International and Operations Law 861

---- Question: Is the data gathered “intelligence”?

----- Intelligence is defined within the DoD as “[t]he product resulting 

from the collection, processing, integration, evaluation, analysis, 

and interpretation of available information concerning foreign 

nations, hostile or potentially hostile forces or elements, or areas of 

actual or potential operations”

----- Data is not considered an intelligence product until processed into 

an intelligible form by a member of the intelligence component or 

non-intelligence component members performing an intelligence 

function

----- USPI that is publically available is still considered intelligence information if it is gathered by a member of an intelligence component in 

the course of their duties, or if gathered for an intelligence purpose

----- USPI collected by non-intelligence personnel/equipment or for a 

non-intelligence purpose is not considered intelligence information

----- Non-intelligence related USPI must still comply with federal law and DoD regulations for collection, retention and 

dissemination, including: The Privacy Act; DoDD 5400.11-

R, DoD Privacy Program; and DoDD 5200.27, Acquisition 

of Information Concerning Persons and Organizations not 

Affiliated with the Department of Defense

---- Question: Is the intelligence collection directed at a USP?

----- If an intelligence activity is, or is likely to include, collection against 

a USP, then the collection, retention, and dissemination procedures 

set-out in DoD 5240.1-R must be followed

----- If the collection takes place outside the United States and 

the status of the individual is unknown, the individual can 

be presumed not to be a USP until specific information to 

the contrary is obtained

----- If the collection takes place within the United States, the 

individual should be presumed to be a USP until information to the contrary is obtained
862 The Military Commander and the Law

-- Is the Collection Being Performed by a Member of the Intelligence Component?

--- Members of the Air Force intelligence component include all Air Force intelligence personnel (active duty, Air Force Reserve (AFR), ANG personnel in 

Title 10 or Title 32 status, civilian personnel, and contractors) and intelligence 

units, counterintelligence units of the AFOSI, and non-intelligence personnel 

assigned to perform intelligence functions or activities

-- Does the Unit Have an Approved Mission Requiring the Collection of Intelligence?

--- Intelligence activities, whether against a USP or a foreign target, are required 

to be directly related to a unit’s assigned mission

---- For most Air Force units involved in intelligence collection, this means the 

collection must relate to information concerning foreign nations, hostile 

or potentially hostile forces or elements, or areas of actual or potential 

operations

---- Generally, other than AFOSI’s standing mission to perform CI or a flying unit temporarily supporting disaster relief as a properly authorized 

Defense Support of Civil Authorities (DSCA) operation, this will NOT 

include domestic collection

-- Is there Specific Legal Authority for the Unit/Person to Collect Intelligence?

--- Intelligence collection is “authorities driven,” meaning that unlike many military functions that are included under a commander’s inherent authority, 

there must be a specific authorization to perform intelligence collection

---- These responsibilities are generally laid out either in a commander’s mission directives for military operations, or in EO 12333

---- Intelligence collectors should be able to articulate the specific authority 

for their intelligence collection

--- Intelligence collection that occurs during ongoing military operations is 

generally considered a Title 10, U.S.C., Intelligence Activity

---- Intelligence collection taking place during military operations is typically 

authorized by the Execution Order (EXORD) directing that mission

--- Intelligence collection focused on foreign intelligence outside of ongoing 

military operations generally falls under Title 50, U.S.C.
CHAPTER SEVENTEEN International and Operations Law 863

References

10 U.S.C. § 162

10 U.S.C. § 164

10 U.S.C. § 8013

50 U.S.C. § 3001 et seq..

50 U.S.C. § 3038

Executive Order (EO) 12333, as amended by Executive Orders 13284 (2003), 13355 (2004) and 

13470 (2008)

DoDD 5240.01, DoD Intelligence Activities (27 August 2007), incorporating Change 1 and certified 

current, 27 August 27

DoD 5240.1-R, Procedures Governing the Activities of DoD Intelligence Components that Affect 

United States Persons, (December 1982)

DoDD 5200.27, Acquisition of Information Concerning Persons and Organizations Not Affiliated 

with the Department of Defense, (7 January 1980)

DTM 08-052, DoD Guidance for Reporting Questionable Intelligence Activities or Highly Sensitive 

Matters, (17 June 2009), incorporating through Change 6, 10 September 2015

AFI 14-104, Oversight of Intelligence Activities (5 November 2014)

AFI 14-119, Intelligence Support to Force Protection (FP) (4 May 2012)

AFI 14-202V3, General Intelligence Rules (10 March 2008)

AFI 71-101V4, Counterintelligence (26 January 2015)

Office of the Director of National Intelligence, Intelligence Community Legal Reference Book 2012,

http://www.dni.gov/files/documents/IC_Legal_Ref_2012.pdf
864 The Military Commander and the Law

FOREIGN CRIMINAL JURISDICTION

Air Force members serving or deployed at overseas locations may be subject to criminal 

proceedings by both the host nation (HN) and by the United States for offenses allegedly 

committed. It is the policy of the Department of Defense (DoD) and the Air Force to 

protect to the maximum extent possible, the rights of U.S. personnel who may be subject 

to criminal trial by foreign courts and imprisonment in foreign prisons.

- As a starting point, unless an exception has been granted, the HN has jurisdiction 

under international law over any person, including another nation’s service members, 

physically within its borders based on territorial sovereignty

- Simultaneously, the United States always has court-martial jurisdiction over its service 

members for UCMJ offenses (the UCMJ applies “in all places”)

-- Normally only one nation will exercise criminal jurisdiction against the Air Force 

member. That nation is referred to as having primary jurisdiction.

-- Primary jurisdiction of the case is often governed by the terms of any applicable 

status of forces agreement (SOFA) with the particular HN. In certain peace operations, especially those run by the United Nations, a status of mission agreement 

(SOMA) may be used instead of a SOFA. In this discussion, SOFA will refer to both 

SOFAs and SOMAs.

Violations of HN Law

- If a U.S. military member commits an offense that violates HN law, regardless of 

whether it violates the UCMJ, numerous actions may be triggered

-- Military commanders generally have an obligation to place U.S. service members 

on “international hold” pending resolution of criminal cases within the HN

-- U.S. service members generally are made available to HN officials by commanders 

in consultation with the local staff judge advocate (SJA) (specific timing of release 

varies by country)

--- Consultation and cooperation with HN law enforcement agencies is always 

desirable, but it should be noted that in some HNs, local law enforcement 

have the right to enter the installation to arrest the member regardless of 

the desire for consultation and cooperation

-- U.S. service members, dependents and civilian employees of the U.S. Armed 

Forces facing HN criminal charges may request the Air Force employ legal counsel 
CHAPTER SEVENTEEN International and Operations Law 865

and pay counsel fees, court costs, bail, and other expenses incident to the representation. Reasonable counsel fees for civilian HN attorneys may be paid on 

behalf of U.S. service members.

--- A U.S. service member or civilian employed by or accompanying the armed 

forces who is the victim of a crime being adjudicated by the HN criminal 

justice system may request payment of counsel fees for representation in 

the case, if:

---- The HN confers on the victim a right to be represented in court; and

---- The commander determines it is in the best interests of the government

-- U.S. service members facing HN criminal charges may also request a Military 

Legal Advisor (who must be an Air Force judge advocate appointed by the SJA) 

to advise the member on U.S. related matters arising out of the criminal charges

-- U.S. service members, dependents and civilian employees of the U.S. Armed 

Forces will have a trial observer, usually a designated judge advocate, appointed 

by the U.S. Chief of Mission, monitor HN criminal proceedings to report whether 

the trial was fair

-- If conviction results in a HN court, U.S. service members, dependents and civilian 

personnel face HN sentencing, including confinement in the HN

-- The DoD seeks to assure that U.S. military personnel, civilian employees, and 

dependents, when in the custody of foreign authorities, are treated fairly at all 

times. DoD further seeks to assure that when confined (pretrial, during trial, 

and post-trial) in foreign penal institutions, these personnel receive the same 

or similar treatment, rights, privileges, and protections of personnel confined in 

U.S. military facilities.

SOFAs

- The major SOFAs (NATO, Japan, and Korea) contain similar formulas for determining 

which country gets to exercise jurisdiction over U.S. personnel for criminal offenses

-- Exclusive jurisdiction belongs to:

--- United States for crimes under U.S. military or other applicable law that are 

not violations of HN law (e.g., absent without leave (AWOL), disrespect, and 

disobeying orders)
866 The Military Commander and the Law

--- HN for acts that are crimes under the HN’s laws but not under U.S. law (e.g., 

religious crimes, political crimes, and certain negligent acts that, under U.S. 

law, do not rise to the level of criminal conduct)

-- Concurrent (shared) jurisdiction occurs when conduct is criminal under both 

U.S. and HN law. The HN has the primary right to try all concurrent cases, except:

--- Official duty cases: When the offense arises out of an act in the performance 

of the U.S. service member’s official duty

--- Inter se: When the crime affects only U.S. parties or U.S. property

-- DoD policy is to maximize U.S. jurisdiction, subject to any international or bilateral 

agreements

--- In a concurrent jurisdiction case, when the HN has the primary right to try 

a case, the United States will normally request a waiver of jurisdiction from 

the HN

--- The procedures for and the likely success of a request for waiver vary depending on the HN and, frequently, the seriousness of the offense (the more serious the offense, the less likely it will be granted)

--- When a waiver is granted, the U.S., pursuant to treaty or other appropriate 

legal authority, may report to the HN the final result of the action, if any, 

taken against the member

- In other HNs not covered by the major SOFAs, there may be other relevant bilateral 

agreements or diplomatic notes. The SJA should be consulted regarding jurisdiction 

and procedures.

Civilians and Dependent Family Members Accompanying the Force

- Civilians (rarely contractors) and dependent family members accompanying U.S. 

forces abroad are normally considered subject to the terms of the applicable SOFA

- The HN will have jurisdiction based on its territorial sovereignty, but the U.S. commander usually does not have UCMJ authority over these persons
CHAPTER SEVENTEEN International and Operations Law 867

- If the HN cedes primary jurisdiction to the United States, or otherwise chooses not 

to exercise jurisdiction, the options of the commander are limited to administrative 

procedures (e.g., Family Member Misconduct Boards, early return of dependents and 

employment disciplinary procedures, if appropriate)

- To remedy this problem, Congress passed the Military Extraterritorial Jurisdiction 

Act (MEJA) of 2000. The Act extends U.S. jurisdiction to cover offenses committed 

by dependents and other civilians accompanying our forces if the criminal act is 

punishable by at least one year in confinement. This act allows the Department of 

Justice, not the Air Force or DoD, to prosecute the offending civilian. MEJA can also 

extend jurisdiction over military personnel and contractors’ employees who are not 

normally resident in the HN.

- Congress also amended Article 2a(10), UCMJ, to provide jurisdiction over civilians 

serving with or accompanying U.S. armed forces in the field during either declared 

war or a contingency operation

- Reasonable counsel fees for civilian HN attorneys may be paid on behalf of U.S. 

personnel

Absence of a SOFA or Other Agreement

- The prevailing international view is that, in the absence of an agreement to the contrary, criminal jurisdiction rests exclusively with the HN

- While the United States has worldwide personal jurisdiction over U.S. service members, the exercise of that jurisdiction in the HN without HN permission may be considered a breach of its territorial sovereignty

- Particular emphasis has been placed on ensuring a SOFA or other agreement with 

similar provisions is entered into with all HNs hosting U.S. forces
868 The Military Commander and the Law

References

10 U.S.C. § 802(a)(10)

10 U.S.C. § 805

10 U.S.C. § 1037

Military Extraterritorial Jurisdiction Act,18 U.S.C. § 3261, et seq.

Status of Forces Policies and Information, 32 C.F.R. Part 151 (2014)

DoDD 5525.1, Status of Forces Policy and Information (7 August 1979), incorporating through 

Change 2, 2 July 1997, certified current, 21 November 2003 (editor's note: at the time of 

printing, this DoDD was current, however, it will be replaced by DoDI 5525.01 soon)

AFJI 51-706, Status of Forces Policies, Procedures, and Information (15 December 1989), certified 

current, 21 December 2010

AFI 51-703, Foreign Criminal Jurisdiction (21 May 2014), including AFI51-703_AFGM2016-01, 

6 January 2016

AFI 51-705, Criminal Jurisdiction of Service Courts of Friendly Foreign Forces and Sending States 

in the United States (9 October 2014)

AFI 51-705 AFMC Supplement 1, Jurisdiction of Service Courts of Friendly Foreign Forces in the 

United States (29 December 1994)
CHAPTER SEVENTEEN International and Operations Law 869

DEFENSE SUPPORT OF CIVIL AUTHORITIES

Defense Support of Civil Authorities (DSCA) is support provided by U.S. Federal military 

forces, Department of Defense (DoD) civilians, DoD contract personnel, DoD component 

assets, and National Guard forces (when the Secretary of Defense (SecDef), in coordination with the Governors of the affected States, elects and requests to use those forces 

in Title 32, United States Code, status) in response to requests for assistance from civil 

authorities for domestic emergencies, law enforcement support, and other domestic 

activities, or from qualifying entities for special events. “Special events,” in this context, 

means events recognized or defined in the relevant provisions of the United States Code 

or the Code of Federal Regulations (e.g., Presidential inaugurations, international summits, the Olympics, and World Cup soccer games). The federal government maintains a 

wide array of capabilities and resources that, in accordance with governing statutes, as 

well as DoD and Air Force regulations and policy, can be made available to civil authorities 

upon request. While the DoD is normally the lead agency for homeland defense missions, 

the DoD conducts DSCA operations in a supporting role.

DSCA Generally 

- DSCA is initiated when civil authorities or qualifying entities request DoD assistance 

or when assistance is authorized by the President of the United States (POTUS) or 

the SecDef

-- Unless approval authority is delegated by the SecDef, all DSCA requests shall be 

submitted to the Office of the Executive Secretary of the DoD

-- Except for immediate response and emergency authority, as well as situations 

in which SecDef has delegated authority to the commanders of NORTHCOM 

and PACOM via the DSCA Standing execute order (EXORD), only the SecDef may 

approve requests from civil authorities or qualifying entities for Federal military 

support for:

--- Response to civil disturbances;

---- Civil disturbance operations generally require authorization from the 

POTUS (but see, discussion of emergency authority below)

--- Response to chemical, biological, radiological, nuclear, and explosives 

(CBRNE) events;

--- Assistance to civilian law enforcement organizations; and
870 The Military Commander and the Law

--- Response with potentially lethal assets. This includes:

---- The loaning of arms, aircraft, or ammunition;

---- Assistance to the Department of Justice (DOJ) in emergency situations 

involving weapons of mass destruction;

---- Assistance to the DOJ concerning prohibited transactions involving 

nuclear material;

---- Support to counterterrorism operations; and

---- Support to civilian law enforcement authorities in situations where it is 

reasonable to anticipate a confrontation between civilian law enforcement and civilian individuals or groups

-- The Joint Staff (JS), upon SecDef approval of DoD assistance, coordinates with 

the Services to source the assistance to be provided

--- Based on the capabilities required, Air Force assets may be directed to provide assistance

- Federal military forces employed for DSCA are to remain under Federal military command and control at all times

- Per DoDD 3025.18, Defense Support of Civil Authorities, requests for DSCA, except 

requests for support under immediate response authority (discussed below) and 

mutual or automatic aid arrangements (such as reciprocal fire protection agreements 

under Title 42, United States Code, §§ 1856-1856p and governed by DoDI 6055.06, 

DoD Fire and Emergency Services (F&ES) Program), must be submitted in writing

- Written requests shall include a commitment to reimburse the DoD in accordance 

with the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Title 42, 

United States Code, § 5121, et seq.), the Economy Act (Title 31, United States Code, § 

1535), or other statutory reimbursement authorities

-- Support may be provided on a non-reimbursable basis only if required by law or 

if both authorized by law and approved by the appropriate DoD official
CHAPTER SEVENTEEN International and Operations Law 871

- All DSCA requests for assistance must be evaluated for:

-- Legality;

-- Lethality (potential that DoD Forces may use or be subject to the use of lethal 

force);

-- Risk to the safety of DoD Forces;

-- Cost (including the source of funding and the effect on the DoD budget);

-- Appropriateness (whether providing the requested support is in the interest of 

the DoD); and

-- Readiness (impact on the DoD’s ability to perform its primary missions)

--- Assistance may not be provided if such assistance would adversely affect 

national security or military readiness

- No DoD unmanned aircraft systems (UAS) will be used for DSCA operations unless 

expressly approved by the SecDef

-- Use of armed UAS for DSCA operations is not authorized

- Joint investigations of matters within their respective jurisdictions conducted by 

military criminal investigative organizations (e.g., Air Force Office of Special Investigations) and civilian law enforcement agencies, where each is using its own forces and 

equipment, are not DSCA

- Assistance provided by DoD intelligence and counterintelligence components in 

accordance with DoDD 5240.01, DoD Intelligence Activities; Executive Orders 12333 

and 13388; DoD 5240.1-R, Procedures Governing the Activities of DoD Intelligence Components That Affect United States Persons; and other applicable laws and regulations, 

is not DSCA

- Support provided in response to foreign disasters (e.g., foreign consequence management or foreign humanitarian assistance/disaster response) is not DSCA
872 The Military Commander and the Law

Immediate Response Authority (IRA)

- Upon request and without SecDef approval, Air Force commanders may temporarily 

employ the resources under their control to save lives, prevent human suffering, or 

mitigate great property damage within the United States

-- For support under IRA to be proper, “imminently serious conditions” must be 

present such that time does not permit seeking approval from higher authority

--- Requests are time-sensitive and shall be received from local government 

officials within 24 hours following completion of a damage assessment

-- Due to the emergent nature of the situation, the initial request for DoD assistance 

may be made orally, but it should be followed with a written request at the earliest opportunity

--- Civil authorities shall be informed that oral requests for assistance in an 

immediate response situation must be followed by a written request that 

includes an offer to reimburse the DoD at the earliest available opportunity

-- Where appropriate or legally required, support provided under immediate 

response authority should be provided on a cost-reimbursable basis

--- Air Force commanders should not delay or deny support under immediate 

response authority based on the fact that the requester is unable or unwilling 

to commit to reimbursing the DoD

-- Immediate response authority does not permit actions that would subject civilians to the use of military power that is regulatory, prescriptive, proscriptive, or 

compulsory, and therefore violate the Posse Comitatus Act

-- Air Force commanders must consider the impact providing immediate response 

would have on military mission requirements

--- Commanders must not jeopardize the Air Force mission to provide immediate response

-- Immediate response is subject to higher headquarters direction and limitation
CHAPTER SEVENTEEN International and Operations Law 873

-- Per DepSecDef Policy Memorandum 15-002, “Guidance for the Domestic Use of 

Unmanned Aircraft Systems,” DoD UAS may not be used for Federal, State, or local 

immediate response

-- The Air Force commander directing a response under IRA shall, through the chain 

of command, immediately notify the National Joint Operations and Intelligence 

Center (NJOIC)

-- An immediate response shall end when the urgent need giving rise to the 

response is no longer present (i.e., when there are sufficient non-DoD resources 

available to adequately respond and that agency or department is responding) 

or when the initiating DoD official or a higher authority directs an end to the 

response.

--- The Air Force commander directing a response under IRA shall reassess as 

soon as practicable, but no later than 72 hours after receiving the request 

for assistance, whether there is a continuing need for the DoD to respond 

under this authority

- Air Force commanders acting under IRA shall not use military force to quell civil 

disturbances unless specifically authorized by the POTUS in accordance with the 

Insurrection Act of 1807 or unless permitted under emergency authority as outlined 

below

Emergency Authority

- Air Force commanders have the authority, in extraordinary emergency circumstances 

where prior POTUS authorization in accordance with the Insurrection Act of 1807 is 

not possible and where duly constituted local authorities are unable to control the 

situation, to temporarily engage in activities necessary to quell large-scale, unexpected civil disturbances when:

-- Such activities are necessary to prevent significant loss of life or wanton destruction of property and are necessary to restore governmental function and public 

order; or

-- When duly constituted civil authorities are unable or unwilling to provide 

adequate protection for Federal property or Federal governmental functions

--- Federal military forces are authorized to protect Federal property or functions
874 The Military Commander and the Law

References

10 U.S.C. §§ 331-335

10 U.S.C. § 382

10 U.S.C. § 2564

18 U.S.C. § 831

18 U.S.C. § 1385

31 U.S.C. § 1535

42 U.S.C. § 5121, et seq.

32 C.F.R. § 183.3

DoDD 3025.18, Defense Support of Civil Authorities (29 December 2010), incorporating Change 1, 

21 September 2012

DoDI 3020.52, DoD Installation Chemical, Biological, Radiological, Nuclear, and High-Yield 

Explosive (CBRNE) Preparedness Standards (18 May 2012)

DoDI 3025.21, Defense Support of Civilian Law Enforcement Agencies (27 February 2013)

DoDI 6055.06, DoD Fire and Emergency Services (F&ES) Program (21 December 2006)

Deputy Secretary of Defense Policy Memorandum 15-002, “Guidance for the Domestic Use of 

Unmanned Aircraft Systems” (17 February 2015)

JP 3-28, Defense Support of Civil Authorities (31 July 2013)

AFI 10-801, Defense Support of Civil Authorities (23 December 2015)
CHAPTER SEVENTEEN International and Operations Law 875

SMALL UNMANNED AIRCRAFT SYSTEMS

As use of small unmanned aircraft systems (sUAS) by hobbyist/recreational, commercial/

civil, and public (government) users is increasing, questions regarding the use of sUAS on 

or near military installations are also increasing. Similarly, organizations on an installation 

may raise questions as they seek to incorporate sUAS into their operations. This area is still 

developing, so installations should generally consult their legal offices at their MAJCOMs 

and HAF as issues arise.

Definition

- The Department of Defense (DoD) categorizes Unmanned Aircraft Systems (UAS) into 

five Groups based on the attributes of weight, altitude, and speed

- sUAS span Groups one through three with Group three being the most common 

type of sUAS

- Group three UAS are under 1,320 pounds and operate below 18,000 feet at speeds 

less than 250 knots

-- The DoD definition differs from the Federal Aviation Administration (FAA) definition of sUAS, which includes only those UAS that are under 55 pounds. Note that 

an FAA Notice of Proposed Rulemaking (NPRM) (final rule expected summer 

2016) would also place altitude and airspeed requirements of 500 feet above 

ground level and 87 knots on sUAS.

Operation of Nongovernmental sUAS on or Near Military Installations

- Airspace within the United States, including airspace above DoD installations, is 

regulated by the FAA

-- sUAS operations in the airspace above military installations must comply with 

FAA regulations and guidance; installation commanders generally do not have 

the authority to further restrict the use of airspace above an installation

-- In 2016, the FAA is in the process of rulemaking regarding sUAS. The NPRM is 

available on the FAA web site and a final rule is expected in the summer of 2016.

-- The initial consideration on sUAS operations on or over the installation should 

always be identifying the class of airspace above the installation, and determining 

whether there is any special use airspace (or other restrictions) above the installation. The types of sUAS operations that are permitted may vary depending on 

the airspace classification and any applicable restrictions. Legal offices should 
876 The Military Commander and the Law

consult with the organization responsible for airfield operations to learn more 

about the airspace above their installation.

-- Individuals flying sUAS for hobby/recreational purposes (a specific category of 

operations defined by the FAA as “model aircraft operations”) are expected to 

contact the airport operator and the airport air traffic control (ATC) tower (when 

an ATC facility is located at the airport) if they are planning to operate a sUAS 

within 5 nautical miles of the airport. Installations with airfields may receive 

requests or notifications from groups or individuals operating sUAS.

--- The term “airport” is broadly defined and would likely include any military airfield. The statutory definition used by the FAA is contained in 49 

U.S.C. § 47102(2) and the FAA provides further information about airports on its web site at: http://www.faa.gov/airports/planning_capacity/

passenger_allcargo_stats/categories/

--- Installation airfield managers, ATC towers, or equivalent must be aware of 

FAA regulations regarding the use of sUAS and respond to notifications 

received from sUAS operators accordingly. Note that the requirement is to 

provide notification to the airport and ATC tower, not to request permission 

to operate.

--- Do not assume that those requesting to operate near or over an installation 

are legally entitled to do so. sUAS users may not understand the regulations 

and restrictions that pertain to them. If there are questions about particular 

sUAS operations, coordinate with the local FAA office.

--- Be aware of any airspace authorities that may have been granted to the installation commander by the FAA (if such a delegation exists, it will generally be 

in the form of a memorandum of agreement (MOA) between the installation 

ATC, or similar, and the FAA), and determine whether the commander or his 

designee has the authority to restrict or prohibit sUAS activities

-- The FAA has stated that its current policy regarding UAS is based on three categories: (1) UAS used as public aircraft; (2) UAS used as civil aircraft; and (3) UAS 

used as model aircraft (see 72 Fed. Reg. 6689 (Feb. 13, 2007)). Regardless of size 

or cost, as a general matter, aircraft purchased by the services or operated by a 

service for military purposes are public aircraft, and are ineligible for exceptions 

to regulation available to model aircraft operators. Note that with respect to UAS 

used as model aircraft, the FAA has reiterated that to qualify as a model aircraft, 

the aircraft would need to be operated purely for recreational or hobby purposes.
CHAPTER SEVENTEEN International and Operations Law 877

- Installation commanders, consistent with their authority over the installation and its 

activities, may prohibit (or limit) the operation of sUAS on the installation, to include 

the following: a sUAS taking off from the installation; a sUAS landing on the installation; and controlling a sUAS from the installation

-- As previously noted, the authority of an installation commander does not generally extend to restricting the use of the airspace above an installation. The 

national airspace, including the airspace above defense installations, falls under 

the exclusive jurisdiction of the FAA. Absent a delegation of authority from the 

FAA to the installation commander, the commander has no independent authority to place any restrictions on the use of the airspace.

--- Commanders may request the FAA impose a Temporary Flight Restriction 

(TFR). TFRs are regulatory actions issued via a Notice to Airmen (NOTAM) to 

restrict certain aircraft from operating within a defined area, on a temporary 

basis, to protect persons or property on the ground. The FAA may impose 

TFRs for a number of reasons, to include reasons of national security (see 

FAA Advisory Circular (AC) No. 91-63C, Temporary Flight Restrictions (20 May 

2004)). AC 91-63C clearly states that a TFR can be requested by, among other 

entities, a military command.

---- Pursuant to 14 C.F.R. § 99.7, Special Security Instructions, the DoD can 

request a TFR for a “defense area” for reasons of national security. A 

“defense area” for purposes of this C.F.R. provision is any airspace of the 

U.S. “in which the control of aircraft is required for reasons of national 

security” (14 C.F.R. § 99.3).

- While simply flying a sUAS near or above an installation may be permissible under 

FAA regulations, if the sUAS is being used to conduct another activity (e.g., taking 

photos or videos), additional restrictions may apply

-- Installation legal offices should familiarize themselves with any state or local 

laws relating to UAS that may be applicable to operations near, on, or over the 

installation

-- Federal laws may also prohibit certain activities, for example:

--- 18 U.S.C. 795, Photographing and Sketching Defense Installations and 18 U.S.C. 

796, Use of Aircraft for Photographing Defense Installations, criminalize photographing “...vital military and naval installations or equipment without first 

obtaining permission of the commanding officer....” Note that such installations must be designated by the President, SecDef, or a service secretary. 

Executive Order 10104, Definition of Vital Military and Naval Installations and 
878 The Military Commander and the Law

Equipment (dated 1 Feb 1950) contains the President’s definitions of these 

items. They are broadly defined to include all “military, naval, or air-force 

installations and equipment which are now classified, designated, or marked 

under the authority or at the direction of the President, the Secretary of 

Defense, the Secretary of the Army, the Secretary of the Navy, or the Secretary 

of the Air Force as “top secret,” “secret,” “confidential,” or “restricted,” and all 

military, naval, or air-force installations and equipment which may hereafter 

be so classified, designated, or marked with the approval or at the direction 

of the President....”

-- Monitoring the content of suspected downlink video would not violate 18 U.S.C. 

2511, et seq., if sufficient consent can be shown or the downlink is configured so 

it is “readily accessible to the general public” under 18 U.S.C. 2510(16)

- Outside of the United States, the host nation generally regulates the use of the 

airspace above U.S. military bases. Status of Forces Agreements (SOFAs) or other 

agreements with the host nation may give installations some rights with respect to 

airspace control.

Operation of sUAS Within the United States by DoD Organizations

- Secretary of Defense (SecDef) approval is required for all domestic UAS operations 

(including sUAS operations) unless a specific exemption or exception applies

-- The policy (to include very limited exceptions) is contained in in DepSecDef 

Policy Memorandum 15-002, Guidance for the Domestic Use of Unmanned Aircraft 

Systems

-- Any domestic use of UAS requires consultation with the FAA and must be consistent with applicable laws, regulations, and memoranda of agreement concerning 

use in the National Airspace System (NAS)

- Units are generally not authorized to purchase sUAS without prior coordination

-- AFI 11-502V3, Small Unmanned Aircraft Systems Operations, para. 1.1.3 states that 

“Units do not have the authority to obligate the Government to purchase, lease, 

procure, or contract of any new Air Force SUAS to include UA, Ground Control 

Station (GCS), Remote Video Terminal (RVT), Electro-Optical/Infrared (EO/IR), or 

any other payload prior to coordination with SAF/AQIJ. Include HQ AFSOC/A5KJ, 

HQ AFSOC/A3OU, and MAJCOM/A3 as information addressees”.

- DoD operation of sUAS are subject to specific training, requirements, and other 

restrictions, to include:
CHAPTER SEVENTEEN International and Operations Law 879

-- A 2013 MOA with the FAA requiring that “Pilots/operators and crew members of 

DoD UAS shall be qualified and medically certified by the appropriate Military 

Department to operate in the class of airspace in which operations are to be 

conducted.” The term “operator” is a “DoD specific term to describe individuals 

with the appropriate training and Military Department certification for the type 

of UAS being operated, and as such, is responsible for the UAS operations & 

safety. It is understood that all DoD UAS will be flown with a designated Pilot in 

Command (PIC).”

-- AFI 11-502V3, para. 1.3 defines a sUAS operator (SUAS-O) as “[a]n individual who 

has completed Initial Qualification Training (IQT) in a specific UAS and is responsible for the safe ground and flight operation of the Unmanned Aircraft (UA) and 

Ground Control Station (GCS). The SUAS-O shall be current and qualified in the 

SUAS to be operated or under the supervision of a SUAS-I[nstructor].”

-- All sUAS must be assessed for airworthiness pursuant to AFI 62-601, USAF

Airworthiness

-- The sUAS operator must be familiar and ensure compliance with relevant technical orders for the aircraft, pursuant to AFI 11-502V3, Chapter 2

-- The sUAS must also have proper and adequate technical orders for its use, operation, and maintenance, designed to ensure safety of flight and avoid mishaps 

resulting in damage (and potential government liability) to persons or property, 

both military and civilian

-- The sUAS should be tracked for maintenance and accountability with a SUAS 

Manager, pursuant to AFI 11-502V3, paras. 1.5 and 11.2, and consistent with AFI 

21-103, Equipment Inventory, Status, and Utilization Reporting, Chapter 2

-- The sUAS operator will also need to ensure the radio frequency (RF) used is 

deconflicted

--- This should consider both the capacity of the UAS to cause harmful interference with local RF usage (civilian and military) as well as the potential for 

any local RF usage to interfere with the operator’s ability to maintain control 

of the sUAS, as addressed in AFI 11-502V3, para. 2.5. See also AFI 11-502V3, 

para. 3.3.9 (Frequency Deconfliction directives).

-- Operations of sUAS must also comply with DoD 5240.1-R, Procedures Governing 

the Activities of DoD Intelligence Components That Affect United States Persons; AFI 

14-104, Oversight of Intelligence Activities; and applicable AFOSI issuances
880 The Military Commander and the Law

Operation of sUAS Outside of the United States by DoD Organizations

- In addition to any DoD or service regulations or guidance generally applicable to 

the operation of sUAS by military organizations, note that operations of sUAS within 

the national airspace of another country may be severely restricted by the domestic 

laws of that country

-- If no specific rights have been granted in a SOFA, basing agreement, or other 

agreement with the host nation, assume that specific permission will likely be 

needed to operate a sUAS (i.e., even if citizens of the country are typically allowed 

to operate sUAS, do not assume that U.S. operations are authorized)

--- Follow all applicable coordination and approval procedures to ensure that 

operations within the airspace of another county are authorized by the host 

nation and conducted in conformity with all applicable conditions of the 

permission granted. Be aware that conditions frequently include respect for 

the laws and regulations of that host state.

References

Memorandum of Agreement (with the FAA) Concerning the Operation of Department of Defense 

Unmanned Aircraft Systems in the National Airspace System (16 September 2013)

Deputy Secretary of Defense Policy Memorandum 15-002, Guidance for the Domestic Use of 

Unmanned Aircraft Systems (15 February 2015)

DoD 5240.1-R, Procedures Governing the Activities of DoD Intelligence Components That Affect 

United States Persons (7 December 1982)

AFPD 11-5, Small Unmanned Aircraft Systems Rules, Procedures, and Service (8 October 2015)

AFI 11-502V1, Small Unmanned Aircraft Systems Training (19 August 2015)

AFI 11-502V2, Small Unmanned Aircraft Systems Standardization/Evaluation Program

(19 August 2015)

AFI 11-502V3, Small Unmanned Aircraft Systems Operations (21 August 2015)

AFI 14-104, Oversight of Intelligence Activities (5 November 2014)

AFI 21-103, Equipment Inventory, Status, and Utilization Reporting (26 January 2012)

AFI 62-601, USAF Airworthiness (11 June 2010)

FAA Unmanned Aircraft Systems web page: http://www.faa.gov/uas/ (contains comprehensive 

information on the operation of UAS in the U.S.)
881

Cyber Law Overview ............................................................................................................................882

Legal Issues in Air Force Information Network (AFIN) Operations......................................883

Legal Issues in Cyberspace Operations.........................................................................................894

CHAPTER EIGHTEEN: CYBER LAW

18
882 The Military Commander and the Law

CYBER LAW OVERVIEW

The term “cyber law” can be misleading. Rather than being a discrete legal field, cyber 

law is essentially specialized subsets of traditional legal fields (criminal law, international 

law, administrative law, privacy law, tort law, etc.). This chapter addresses the legal issues 

in cyberspace that Air Force commanders are most likely to encounter, such as searching 

and seizing computers/accessing electronically stored information and computer misuse 

(criminal law); defending Air Force networks and attacking adversary networks (the law of 

armed conflict/international law); and the Freedom of Information Act (FOIA), the Privacy 

Act, and Personally Identifiable Information (privacy law). Most of these discrete areas 

of the law have their own chapter or section throughout this handbook, so this chapter 

will only focus on their cyber-specific aspects.

While the content of this chapter has been substantially revised from previous editions 

of the Military Commander and the Law, it is important to remember the technology, 

law, and policy in this area are dynamic. Commanders and judge advocates should seek 

the most current guidance from subject matter experts at the 67th Cyberspace Wing 

(CW) legal office, 24th Air Force legal office, or the Air Force Space Command legal office.

Roles and Responsibilities

- Commander, AFSPC: AFSPC is responsible for the overall command and control, security, and defense of the Air Force Information Network (AFIN). AFSPC/CC commands, 

controls, implements, configures, secures, operates, maintains, sustains, and the AFIN.

- Commander, 24th Air Force: 24 AF is the Air Force component to U.S. Cyber Command 

(USCYBERCOM). Accordingly, 24 AF/CC, when acting as AFCYBER/CC or when executing authorities delegated by AFSPC/CC, issues cyber orders to MAJCOMs, wings, 

Integrated Network Operations and Support Centers, and Communications Focal 

Points via the 624 Operations Center. 24 AF/CC also presents forces to USCYBERCOM 

and other combatant commanders as required in support of cyberspace operations 

as directed.

- 624th Operations Center (OC): The 624 OC is the 24 AF/AFCYBER operations center 

responsible for issuing cyber orders as directed by 24 AF/AFCYBER/CC. 624 OC also 

oversees compliance with Air Force and USCYBERCOM cyber operations and relay 

status of those orders to 24 AF/AFCYBER/CC and USCYBERCOM as directed.
CHAPTER EIGHTEEN Cyberlaw 883

LEGAL ISSUES IN AIR FORCE INFORMATION NETWORK 

(AFIN) OPERATIONS

Cyber Definitions

- Department of Defense Information Networks (DODIN) (JP 3-12): The globally interconnected, end-to-end set of information capabilities for collecting, processing, 

storing, disseminating, and managing information on-demand to warfighters, policy 

makers, and support personnel. The DODIN includes owned and leased communications and computing systems and services, software (including applications), data, 

security services, other associated services, and national security systems.

- Air Force Information Networks (AFIN): The AFIN is the globally interconnected, 

end-to-end set of Air Force information capabilities, and associated processes for 

collecting, processing, storing, disseminating, and managing information on-demand 

to warfighters, policy-makers, and support personnel, including owned, leased, and 

contracted communications and computing systems and services, software, data, 

security services, and national security systems

- DODIN Operations (JP 3-12): Operations to design, build, configure, secure, operate, 

maintain, and sustain DoD communications systems and networks in a way that 

creates and preserves data availability, integrity, confidentiality, as well as user/entity 

authentication and non-repudiation

AFIN Operations Authority

- AFI 10-1701, Command and Control (C2) for Cyberspace Operations, implements AFPD 

10-17, Cyberspace Operations, and provides that AFSPC/CC is responsible for the 

command, control, implementation, security, operation, maintenance, sustainment, 

configuration, and defense of the AFIN

- AFIN operations authorities can be summarized as the responsibility to operate, 

maintain, and defend the AFIN as well as the authority to issue various orders in 

furtherance of those responsibilities. Some of these orders consist of Air Force Cyber 

Tasking Orders (AFCTOs), Maintenance Tasking Orders (MTOs), and Cyber Control 

Orders (CCOs).

- Cyber orders issued by AFSPC/CC, or the delegee, 24 AF/CC, via the 624 OC, are 

mandatory military orders
884 The Military Commander and the Law

- 24 AF/CC, in the role of AFCYBER/CC, directs Air Force cyberspace forces in executing 

missions and tasks assigned by USCYBERCOM and exercises OPCON over Air Force 

forces assigned/attached to USCYBERCOM in support of joint objectives. There is 

significant overlap between the Air Force service authority to operate and defend 

Air Force networks and the USCYBERCOM authority to defend Air Force networks.

Computer Monitoring and Stored Communications

- Commanders may have to deal with questions concerning monitoring active duty 

members or obtaining electronic data stored somewhere on the Air Force network 

systems. These requests typically come from law enforcement, but they also may be 

requested by unit commanders, investigative officers, safety investigation boards, etc. 

The following discussion examines the law in this area, exceptions, and the process 

for obtaining these items in the Air Force.

-- Fourth Amendment: Establishes the right to be free from unreasonable searches 

when an individual has a reasonable expectation of privacy 

--- Determination of an expectation of privacy on any given piece of information 

on any given computer or computer system (including servers) depends 

upon a number of factors, such as the owner of the computer (i.e., personal 

or business); the relationship of the information to the computer system (i.e., 

in transit or stored); the nature of the data communicated (i.e., metadata 

or content); the location of the information; and the information owner’s 

citizenship

-- Computer Fraud and Abuse Act, 18 U.S.C. §1030: Prohibits unauthorized access 

(or exceeding authorized access) to any computer involved in interstate or foreign 

commerce or communications. Sometimes referred to as the anti-hacking statute.

-- Federal Wiretap Act, 18 U.S.C. § 2510 et seq.: Prohibits a third party to a communication from wiretapping, monitoring, or intercepting that communication 

in transit. The Wiretap Act covers both telephone conversations and electronic 

communications, and it grants protection to individuals above that in the Fourth 

Amendment (searches and/or seizures with a warrant). However, there are numerous exceptions to the Wiretap Act prohibitions:

--- The Service Provider Exception (18 U.S.C. § 2511(2)(a)(i)): Permits service 

providers to “intercept, disclose, or use” a communication while engaged 

in activity necessary to the provision of service or the protection of the 

provider’s rights or property. This authority is broad, but there must be a 
CHAPTER EIGHTEEN Cyberlaw 885

substantial nexus between the monitoring and the system administrator’s 

duties to maintain and protect the system.

--- Consent (18 U.S.C. § 2511(2)(c)-(d)): Just as in other applications, consent 

to a “search” eliminates a privacy interest in the subject to be searched. The 

DoD banner, as mandated by the DoD Chief Information Officer (DoD-CIO), 

obtains consent to monitoring from any potential user prior to authorized 

use of DoD computer networks. The consent banner and user agreement 

are now used universally in the Air Force and are the main exception to the 

Federal Wiretap Act.

--- Pursuant to Foreign Intelligence Surveillance Act (18 U.S.C. § 2511(2)(e)): This 

exception will most likely only be used by an intelligence-gathering agency

--- Communication readily accessible to the general public (18 U.S.C. § 2511(2)(g)

(i)): An intercepted or accessed electronic communication which is readily 

accessible by the general public (e.g., social media post, status update) is 

excepted

--- Trespasser Exception (18 U.S.C. § 2511(2)(i)): An individual acting lawfully is 

authorized to intercept the communications of a trespasser into a computer 

system (i.e., hackers). The Air Force Office of Special Investigations (AFOSI) 

frequently relies on this exception when conducting counter intelligence 

investigations.

--- Pursuant to a CourtOrder (18 U.S.C. § 2518): Applications for orders authorizing or approving the interception of electronic communications are made 

in writing to a judge of competent jurisdiction

-- Stored Communications Act (18 U.S.C. § 2701 et seq.): The protection in this statute applies to stored communications, rather than in-transit communications 

covered by the Wiretap Act (see above). Similar to the Wiretap Act, the Stored 

Communications Act provides an exception for service providers.

--- 18 U.S.C. § 2702(a) limits voluntary disclosure of communications or records 

by those providing electronic communication services “to the public.” The 

AFIN does not provide electronic communications services to the public. 

Bohach v. City of Reno, 932 F. Supp. 1232 (D.Nev.1996).

--- Service provider exception does not require a nexus between maintaining 

and protecting the system and accessing stored data
886 The Military Commander and the Law

--- DoD consent banner and user agreement is the usual method by which 

stored data can be obtained in the Air Force and will apply in most situations. Despite the banner, some communications stored on Air Force network 

systems may contain communications between users and attorneys, chaplains, or mental health providers. These matters are still considered privileged 

communications, and there may be restrictions on using these communications. Commanders should consult with their servicing legal offices if such 

communications are encountered.

---- Search authorizations for electronically stored information should not 

be used in most cases. AFI 51-201, Administration of Military Justice, says 

“[o]nly if the totality of the facts and circumstances indicate that the 

subject has a reasonable expectation of privacy (for example, no DoD 

banner in place, no user agreement, or local policy inadvertently creates 

an expectation of privacy) is obtaining a search authorization warranted.”

---- Routine use of search authorizations to collect information from government computer systems would contravene the language in the consent 

banner and could create a reasonable expectation of privacy in government computer systems

Bottom Line 

- No reasonable expectation of privacy on Air Force networks

- DoD banner implemented throughout all Air Force computer systems, telephone 

networks, and other electronic communications systems, provides consent from all 

users to monitor their activities and retrieve data under the consent exceptions of the 

Stored Communications Act and Wiretap Act (see U.S. v. Larsen, 525 F.2d 444 (2008))

- Accordingly, law enforcement and AFOSI personnel do not require a search authorization to examine data for law enforcement purposes on Air Force Networks and should 

only seek search authorizations in unusual cases

- Air Force system administrators do not require permission to take action on any 

computer or system device to properly operate, maintain, or defend Air Force Networks under the Stored Communications Act and Federal Wiretap Act exceptions 

for system administrators. However, the Federal Wiretap Act exception requires a 

more substantial nexus to actively monitor in-transit activities and communications.
CHAPTER EIGHTEEN Cyberlaw 887

Electronically Stored Information Request Process

- Electronically stored information (ESI) may be requested for any official purpose. 

Common purposes include: criminal investigations, administrative investigations, 

commander directed investigations, civil litigation involving the Air Force, or retrieving e-mails of an absent member in support of some military mission or duty.

-- DoD consent banner eliminates the need for search authorization from a search 

magistrate in most cases (see Stored Communication Act section, above)

- As outlined in AFI 33-210, Air Force Certification and Accreditation (C&A) Program, para. 

2.4.5, System Designated Approval Authorities (DAAs) may delegate to installation 

commanders or higher the authority to approve Air Force Information System (IS) 

access

-- As such, the AFSPC/A6 has delegated to the 24 AF/CC, 624 OC/CC, and installation 

commanders the authority to approve requests for ESI on ISs for law enforcement, 

and approve real-time monitoring of network communications requests by AFOSI 

(AFSPC/A6 Delegation Memo, dated 7 December 2009)

-- The Air Force implements the DoD Banner which notifies all users of their consent 

to monitoring. Under 18 U.S.C. § 2702(b)(3), communications may be released 

with the consent of the user.

- Tasking Order 2013-098-004, issued by the 624 OC, standardizes the process for 

requesting electronically stored information. The order requires all requests be submitted through the 624 OC via a digitally-signed e-mail and following a designated 

format (see ESI Request Format below).

- Installation commanders have the authority to grant access and release e-mails and 

data on systems under their control as delegated by AFSC/A6, however, that authority 

is not further delegable

-- Additionally, even if the data resides on systems under the control of the installation commander, the process described in TO 2013-098-004 must still be followed

-- Bottom line is all requests for ESI must go through the 624 OC
888 The Military Commander and the Law

Freedom of Information Act (FOIA)/Privacy Act (PA) Requests vs. ESI Requests

- ESI requests must be differentiated from FOIA/PA requests, but at times may follow 

similar procedures. The servicing legal office should be the first line of defense in 

determining whether the request requires processing under FOIA.

- Generally, requests for ESI are those which are not of a personal nature and have an 

inherent military mission or function for its use

-- For example, requesting e-mails pursuant to a commander directed investigation 

would be an ESI request

-- Also, requesting e-mails of a recently deceased member to continue a military 

duty is an ESI request

-- A request for all e-mails between person 1 and person 2 concerning selection for 

an advertised duty position would be a FOIA/PA request

- If the request received is FOIA/PA, FOIA/PA managers will still need to request the 

release of e-mails and data through the 624 OC. During this process, the information 

should be released back to the FOIA/PA managers for continued processing.

-- Approval of the request to retrieve e-mails or data for FOIA/PA requests does 

not constitute a FOIA/PA approval/disapproval. Only FOIA/PA managers and the 

servicing legal office will ascertain whether information contained in the e-mails 

should be released to the third party.

ESI Request Format

- A request for ESI must contain key information for System Administrators, exchange 

administrators, and judge advocates to process the request. The ESI request format 

directed by TO 2013-098-004 is on the next page:
CHAPTER EIGHTEEN Cyberlaw 889

ELECTRONICALLY STORED INFORMATION (ESI) E-MAIL MESSAGE TEMPLATE

MEMORANDUM FOR 624 OC/CC

FROM: ___________________ (Requestor)

SUBJECT: Request for Access to Electronically Stored Information in support of 

_______________________________ (brief description of investigation “CDI 

involving...”, “AFOSI case #”)

1. On ______________(date)__________ , ________________ (appointing 

CC) __________ appointed __________________ (investigator’s name) 

investigating officer for a Command Directed Investigation, to examine 

______________________(fill in purpose of CDI).

2. Request access to ESI on the Air Force Information Network (AFIN), as described 

below, to support the listed investigation (ensure the that the following information is included, preferably using this format):

a. Requestor: Name, Rank, unit:

b. Requestor Duty Address:

c. Requestor E-mail address:

d. Requestor Duty Phone (Comm & DSN):

e. Requestor’s After Duty Hours Phone:

f. Preferred method of receiving the requested information (encrypted e-mail, 

remote delivery to the requestor’s desk, secure FTP, CD, etc....):

g. System where the information will be found and expected classification of 

the information: NIPRnet (Unclassified) or SIPRnet (Secret):

h. Expected location of e-mail and/or data if known:

i. Specific dates of any requested e-mails and/or data (logs, etc....): From 

______ to ______ (must include an end date):

j. List of e-mail accounts (individual and/or organizational) to examine: (subject’s name/e-mail account address/unit, EIN): [Note: it is best to scope the 

request down as far as possible while still satisfying the purpose of the 

request]

k. Purpose of Request: [Note: be very detailed as this is the information the 

DAA uses to make the substantive decision regarding whether the ESI will be 

released—for instance: “to investigate communications regarding possible 

inappropriate relationships between ____ and ____, and ____ knew about 

it”]

l. Is the requested e-mail and/or data believed to contain communications 

involving a lawyer, clergy, health care provider, parties married to each other, 

or information protected by HIPAA? Yes/No (explain if possible)
890 The Military Commander and the Law

m. Is the requested e-mail and/or data expected to contain proprietary information relating to government contracts, or contractor-related protected 

information? Yes/No (explain if possible)

// REQUESTOR’S ELECTRONIC SIGNATURE BLOCK\//

Administrative Note: Requestor must sign and encrypt the e-mail (in the permissions group under options tab in Outlook)

1st Ind, 624 OC/CC

MEMORANDUM FOR RECORD

I approve/disapprove

624 OC/CC Signature Block
CHAPTER EIGHTEEN Cyberlaw 891

ESI Request Reviews

- An ESI request legal review, conducted by 24 AF/JA, generally will analyze the 

following:

-- Proper authority of the requesting individual (valid basis to request information)

-- (1) privilege(s) claimed; (2) proprietary information claimed; and (3) any classification claimed

-- Ensure legitimate request (not overly broad, pursuant to official purpose, etc.)

-- Ensure sufficiently detailed description of data requested in light of basis for the 

request

-- Advise if data may be released and any remarks regarding the data being released

- E-mail requests typically provide ALL e-mails for the period requested. These will 

require a content review prior to certain uses of the data. 

-- Review is required to safeguard any proprietary information of DoD Contractors, 

or privileged communications between the individual and clergy, health care 

practitioners, or attorneys

-- Requestor is responsible for ensuring proper uses of all retrieved data and should 

seek legal advice from the servicing legal office as appropriate

Computer Misuse Incident Program

- Seemingly small incidents of computer misconduct may have large impacts for the 

AFIN

-- For example, installing unauthorized software on a single computer may expose 

the entire network to malware infection and disruption

- The 67 CW, one of the wings under 24 AF with responsibility for maintaining the AFIN, 

has instituted a Computer Misuse Incident Program to promote accountability for 

these actions across the Air Force

- Objective of the Computer Misuse Incident Program is to increase awareness and 

accountability of computer misuse around the Air Force and to empower the owning 

commander to respond to computer misuse as he/she would to any other misconduct
892 The Military Commander and the Law

- AFMAN 33-152, User Responsibilities and Guidance for Information Systems, details 

specific prohibited conduct on the AFIN

-- Para. 3.2 outlines inappropriate uses that are punishable under UCMJ Article 92, 

Failure to Obey Order or Regulation. AFMAN 33-282, Computer Security (COMPUSEC), provides further guidance on prohibited conduct

- As examples, common inappropriate uses include, but are not limited to (1) unauthorized personal use; (2) viewing prohibited content; (3) circumventing security systems; 

and (4) installing freeware/shareware without DAA approval

- The 24 AF/CC may also issue orders regarding proper conduct on the AFIN, which, if 

violated, could represent chargeable offenses under the UCMJ

- Oftentimes, the only evidence of computer misuse resides with the squadrons within 

67 CW tasked to monitor the AFNET for suspicious activity. When they detect an 

intrusion or poor security practice, these squadrons produce a technical report of 

the incident, which they share with their servicing legal office, 67 CW/JA.

- 67 CW/JA reviews these reports for possible misconduct. When there is evidence of 

misconduct, 67 CW/JA creates a narrative of the incident and the potential violations. 

-- Narrative includes a summary of the costs to the Air Force in equipment and 

manpower for each incident

-- The 67 CW Commander then shares this narrative with the Installation Commander of the relevant installation for further action as the owning commander 

believes appropriate

-- 67 CW/JA also provides a courtesy copy of the narrative to the servicing legal 

office where the individual resides

Personally Identifiable Information (PII)

- PII breaches have recently become a high-level interest issue. PII breaches create 

personal vulnerabilities for individuals, but can also create AFIN vulnerabilities.

- Per AFI 33-332, The Air Force Privacy and Civil Liberties Program, PII is information that 

can be used to distinguish or trace an individual’s identity and includes: social security 

number, alien registration number, date and place of birth, mother’s maiden name, 

financial account numbers, and biometric records
CHAPTER EIGHTEEN Cyberlaw 893

- E-mails containing PII (alpha rosters, recall rosters, investigative reports, etc.,) must 

be encrypted and must contain a Privacy Act statement (see AFI 33-332, para. 2.2.5)

- Per AFSPCGM 2013-33-01, Personally Identifiable Information (PII) Breach Reporting, 

Notification and Air Force Network (AFNET) Account Actions, upon notification of a PII 

breach, the 624 OC will direct suspension of the offending user’s account

-- Offending user’s account will remain locked until the 624 OC receives a request 

for the resumption of access from the first O-6 in the offending user’s chain of 

command

References

U.S. Const. Amend IV

Freedom of Information Act, 5 U.S.C. § 552 

Privacy Act, 5 U.S.C. § 552a 

The Stored Communications Act, 18 U.S.C. § 2701-2712

The Wire Tap Act, 18 U.S.C. §§ 2510-2520

Computer Fraud and Abuse Act, 18 U.S.C. C 1030

Bohach v. City of Reno, 932 F.Supp. 1232 (D.Nev.1996)

U.S. v. Larsen, 525 F2d 444 (2008)

DoDI 8500.01, Cybersecurity (14 March 2014)

JP 3-12(R), Cyberspace Operations (5 February 2013)

CJCSI 6510.01F, Information Assurance (IA) and Support to Computer Network Defense (CND) 

(29 June 2015)

AFPD 33-2, Information Assurance (IA) Program (3 August 2011)

AFPD 71-1, Criminal Investigations and Counterintelligence (13 Nov 2015)

AFMAN 33-152, User Responsibilities and Guidance for Information Systems (1 June 2012)

AFMAN 33-282, Computer Security (COMPUSEC) (27 March 2012) 

AFI 10-1701, Command and Control for Cyberspace Operations (5 March 2014), including 

AFI10-1701_AFGM2016-01, 12 May 2016

AFI 33-210, Air Force Certification and Accreditation (C&A) Program (AFCAP) (23 December 

2008), incorporating Change 1, 2 October 2014

AFI 33-332, The Air Force Privacy and Civil Liberties Program (12 January 2015)

AFI 51-201, Administration of Military Justice (6 June 2013), including AFI51-201_AFGM2016-01, 

3 August 2016

AFSPC/A6 Delegation Memorandum, Delegation of Authorities to Access Stored Data and Monitor 

Communications (7 December 2009)

AFSPCGM 2013-33-01, Personally Identifiable Information (PII) Breach Reporting, 

Notification and Air Force Network (AFNET) Account Actions (12 November 2013)

624 OC Tasking Order 2013-098-0004
894 The Military Commander and the Law

LEGAL ISSUES IN CYBERSPACE OPERATIONS

Terminology

- Cyber Operations Definitions (JP 3-12(R)): There are three basic mission sets for cyber 

operations: 

-- Offensive Cyberspace Operations (OCO)

-- Defensive Cyberspace Operations (DCO)

-- DoD Information Network (DODIN) Operations

- Within those three mission sets are four different types of cyberspace actions: 

-- Cyberspace Defense

-- Cyberspace Intelligence, Surveillance, and Reconnaissance (ISR)

-- Cyberspace Operational Preparation of the Environment

-- Cyberspace Attack

- However, cyberspace terminology is somewhat in flux, and terminology varies across 

U.S. Government agencies. Also, not all terms are consistent with their traditional 

uses (for example, the Cyberspace Attack definition is not consistent with notions of 

attack under international law).

Mission Sets

- Offensive Cyberspace Operations (OCO): Cyberspace operations intended to project 

power by the application of force in or through cyberspace

- Defensive Cyberspace Operations (DCO): Passive and active cyberspace operations 

intended to preserve the ability to use friendly cyberspace capabilities and protect 

data, networks, net-centric capabilities, and other designated systems

- DoD Information Network (DODIN) Operations: Operations to design, build, configure, secure, operate, maintain, and sustain DoD networks to create and preserve 

information assurance on the DoD information networks
CHAPTER EIGHTEEN Cyberlaw 895

Cyberspace Actions

- Cyberspace Attack: Cyberspace actions that create various direct denial effects in 

cyberspace (i.e., degradation, disruption, or destruction) and manipulation that leads 

to denial that is hidden or that manifests in the physical domains

-- Deny: To degrade, disrupt, or destroy access to, operation of, or availability of a 

target by a specified level for a specified time. Denial prevents adversary use of 

resources. There are three types of deny actions:

--- Degrade: To deny access (a function of amount) to, or operation of, a target 

to a level represented as a percentage of capacity

--- Disrupt: To completely but temporarily deny (a function of time) access to, or 

operation of, a target for a period represented as a function of time

--- Destroy: To permanently, completely, and irreparably deny (time and amount 

are both maximized) access to, or operation of, a target

-- Manipulate: To control or change information, information systems, and/or networks in a manner that supports the commander’s objectives, including deception, decoying, conditioning, spoofing, falsification, etc. 

--- Manipulation uses an adversary’s information resources for friendly purposes

- Cyberspace Defense: Actions normally created within DoD cyberspace for securing, 

operating, and defending the DODIN

-- Specific defensive actions are usually created by the joint force commander 

(JFC) or service that owns or operates the network, except in such cases where 

these defensive actions would impact the operations of networks outside the 

responsibility of the respective JFC or service

- Intelligence, Surveillance, and Reconnaissance (ISR): An intelligence action conducted 

by the JFC authorized by an EXORD or conducted by attached Signals Intelligence 

(SIGINT) units under temporary delegated SIGINT Operational Tasking Authority 

(SOTA)

-- Cyberspace ISR includes ISR activities in cyberspace conducted to gather intelligence from target and adversary systems that may be required to support future 

operations, including OCO or DCO
896 The Military Commander and the Law

--- These activities synchronize and integrate the planning and operation of 

cyberspace sensors, assets, and processing, exploitation, and dissemination 

systems, in direct support of current and future operations

-- ISR in cyberspace is conducted pursuant to military authorities and must be 

coordinated and deconflicted with other U.S. Government departments and 

agencies in accordance with the Trilateral Memorandum of Agreement Among the 

Department of Defense, the Department of Justice, and the Intelligence Community 

Regarding Computer Network Attack and Computer Network Exploitation Activities, 

9 May 2007, and Executive Order 12333, United States Intelligence Activities

--- EO 12333 only addresses intelligence activities and not surveillance or reconnaissance activities

“Title 10” vs. “Title 50”

- “Title 10” and “Title 50” are often used for shorthand for “military operations” and 

“intelligence operations,” respectively. Usually, the speaker refers to DoD activity 

(“Title 10”) or Intelligence Community activity (“Title 50”). Although such terminology 

is widespread, it is generally incomplete, inaccurate, and confusing. 

- DoD is authorized to conduct both Title 10 and Title 50 operations. Proper legal and 

operational analysis begins with identifying the purpose of the activity, the entity 

that is conducting the activity, and how the information gathered during the activity 

will be used.

- Title 10: The heading of Title 10, United States Code, is “Armed Forces.” It is the primary authority for the manning, training, and equipping of the armed forces by each 

Service.

- Title 50: The heading of Title 50 is “War and Defense.” It provides the authority for 

operating the intelligence community, providing a breakdown of responsibilities for 

Departments and Agencies with intelligence community elements, including major 

agencies within the DoD.

Covert Action and Traditional Military Activity

- Covert Action: Defined as “activities of the United States Government to influence 

political, economic, or military conditions abroad, where it is intended that the role 

of the United States will not be apparent or acknowledged. 50 U.S.C. § 3093(e), Presidential Approval and Reporting of Covert Actions (1947)
CHAPTER EIGHTEEN Cyberlaw 897

-- Covert actions must be approved by the President and have significant congressional oversight

- Traditional Military Activities (TMA): Are expressly deemed not covert actions. At a 

minimum, to qualify as a TMA, the activities must be under the direction and control 

of a military commander.

- Regardless of the underlying authority, many cyberspace operations are conducted 

at higher classification levels, so it is imperative that any legal advisor receive the 

pertinent classification and read-in prior to providing legal advice

Domestic Law

- With respect to the application of domestic law, there is no substantive difference 

between whether an activity is classified as “Title 10” or “Title 50.” Activities conducted 

under both titles must comply with the constitution and with U.S. law

- Domestic laws place considerable restraints on cyberspace operations, particularly 

within the United States, but also in foreign countries

- Although many of the statutes provide exceptions for law enforcement, they do not 

expressly provide exceptions for military operations (however, the military can rely 

on the generally applicable exceptions). Please see the references at the end of this 

section for a list of the pertinent laws in this area.

Policy

- Presidential Policy Directive-20 (PPD-20), U.S. Cyber Operations Policy: All cyber 

operations must comply with PPD-20. The document itself is classified.

- The 2015 DoD Cyber Strategy establishes policy for the U.S. DoD Cyber Enterprise. 

Under this strategy, the DoD will focus on five overarching goals.

-- First, the DoD will build and maintain ready forces and capabilities to conduct 

cyberspace operations

-- Second, the DoD will defend the DoD information network, secure DoD data, 

and mitigate risks to DoD missions

-- Third, the DoD will be prepared to defend the U.S. homeland and U.S. vital interests from disruptive or destructive cyberattacks of significant consequence
898 The Military Commander and the Law

-- Fourth, the DoD will build and maintain viable cyber options and plan to use 

those options to control conflict escalation and to shape the conflict environment 

at all stages

-- Fifth, the DoD will build and maintain robust international alliances and partnerships to deter shared threats and increase international security and stability

- Air Force Policy Regarding Cyber Capabilities

-- Air Force policy requires that cyber capabilities “being developed, bought, built, 

modified or otherwise acquired by the Air Force that are not within a Special 

Access Program are reviewed for legality under [the Law of Armed Conflict], 

domestic law, and international law prior to their acquisition for use in a conflict 

or other military operation” (AFI 51-402, Legal Reviews of Weapons and Cyber 

Capabilities, para. 1.1.2)

--- Note that this requirement applies to all cyber capabilities, not just to weapons. However, this requirement is directed for Air Force cyber capabilities, and 

it is not automatically extended to joint operations and capabilities.

-- Authority to execute the legal review may be delegated to AF/JAO or to MAJCOM 

staff judge advocates. Any further delegation requires AF/JA approval. Currently, 

legal review authority for cyber capabilities NOT rising to the level of a weapon 

resides with the AFSPC/SJA.

-- The legal review is required to address the following (AFI 51-402 para. 3.1):

--- Whether there is a specific rule of law, whether by treaty obligation of the 

United States or accepted by the United States as customary international 

law, prohibited or restricting the use of the weapon or cyber capability

-- If there is no express prohibition, the following questions are considered:

--- Whether the weapon or cyber capability is calculated to cause superfluous 

injury

--- Whether the weapon or cyber capability is capable of being directed against 

a specific military objective and, if not, is of a nature to cause an effect on 

military objectives and civilians or civilian objects without distinction

- The fact that another service or the forces of another country have adopted the 

weapon or cyber capability may be considered in determining the legality of such a 

weapon or cyber capability, but such fact shall not be binding
CHAPTER EIGHTEEN Cyberlaw 899

International Law and Law of Armed Conflict (LOAC) Considerations

- International Law Regarding Cyberspace Operations and the Use of Force:

-- Jus ad bellum: The United States has generally treated the terms “use of force” and 

“armed attack” from the UN Charter synonymously. The issue of whether OCO 

rises to the level of an armed attack is an important one for ensuring the United 

States complies with the UN Charter and because of the potential application of 

the nation’s inherent right of self-defense.

-- Currently there is no official international consensus regarding what constitutes 

a use of force or armed attack in cyberspace

--- However, there is also a growing body of state practice supporting the position that disruptive actions resulting in annoyance or harassment, even if 

for an extended period of time against many web sites, do not amount to 

an armed attack

--- There is also a growing consensus among academics and policymakers that 

cyber activities that proximately result in death, injury, or significant destruction would likely be viewed as a use of force/armed attack

-- If OCO rises to the level of an “armed attack,” then the state where the action 

occurs would be justified under Article 51 of the UN Charter to use force in 

response

-- Under international law, it is still unsettled how a state may respond to OCO that 

does not rise to the level of a use of force/armed attack

--- Many would claim that such actions, if committed against cyber infrastructure within a state’s territory, would still constitute a violation of that state’s 

sovereignty, to which the state could respond with necessary and proportionate countermeasures that themselves do not rise to the level of a use of 

force/armed attack

- Military Necessity:

-- It is unlawful for a party to a conflict to “destroy or seize the enemy’s property 

unless such destruction or seizure is imperatively demanded by the necessities 

of war” (Hague IV, Annex, art. 23(g))
900 The Military Commander and the Law

-- Lawful military objectives (targets) are those objects “which by their nature, location, purpose or use make an effective contribution to military action and whose 

total or partial destruction, capture or neutralization, in the circumstances ruling 

at the time, offers a definitive military advantage (Additional Protocol I, art. 52(2))

-- Just as for kinetic targets, a legal review will address employment of cyberspace 

capabilities in both a targeting review (is it a valid target?) and in the operational 

legal review (will the method to prosecute that target advance a legitimate military objective?)

- Unnecessary Suffering:

-- As stated in the LOAC Chapter, the use of arms which are calculated to cause 

unnecessary suffering is prohibited

-- Generally, cyber capabilities will not cause such effects, but if such effects are 

likely, they will be addressed in the operational legal review

- Proportionality:

- Just as with physical operations, cyber operations must take into account potential 

collateral damage caused to the civilian population, and it must not be excessive in 

relation to the military advantage anticipated

-- For example, a cyber operation to disrupt a nation’s air traffic control feed in 

order to take out a valid military target aboard an aircraft may run afoul of the 

proportionality requirement

-- The commander must assess whether the damage to civilians and civilian property is excessive in relation to the military advantage anticipated by the cyber 

operation

- Distinction:

-- Sometimes referred to as discrimination, requires parties to a conflict to distinguish between combatants and the civilian population and property

-- Due to the overlapping nature of military and civilian uses of cyberspace, distinction can play a very important role in cyber operations. Depending on how the 

code is written, cyber capabilities can be developed with specific or generic 

targets.
CHAPTER EIGHTEEN Cyberlaw 901

--- For example, a cyber capability designed to only create effects on certain 

industrial control systems known to be used in an adversary’s nuclear enrichment facility would likely be considered a discriminate weapon. In contrast, 

a virus (such as the conficker worm in the early 2000s) designed to replicate 

and spread to any system it touches on the Internet would raise distinction concerns because it does not distinguish between civilian and military 

systems.

-- Dual-use systems provide service and capabilities to the civilian population and 

are also used for military purposes

--- Terrorists, enemy combatants, and even nation-states will use civilian networks and cyber infrastructure for their operations, so any operation targeting these capabilities will, by definition, target civilian infrastructure

--- These dual-use systems are lawful military targets if they make an effective 

contribution to the enemy. This unique aspect of cyberspace targeting will 

be addressed in both the targeting and operational legal reviews.

- Chivalry:

-- As mentioned in the Law of Armed Conflict chapter, the principle of chivalry 

permits lawful ruses such as camouflage, false signals, and mock troop movements but forbids perfidious acts

-- Because the infrastructure allowing for the delivery of cyber effects crosses 

multiple countries and cyber effects can be created by non-state actors (e.g., 

independent hackers), attributing a cyber effect to a particular source can be 

difficult

--- An additional issue is that, unlike physical attacks, the ability to mislead an 

adversary as to the source of cyber operations is much greater

-- Disguising cyber effects as normal Web traffic or concealing the source of such 

operations is similar to a permissible lawful ruse and does not violate chivalry

--- However, conducting a cyber operation with the intention of having it attributed to another state (e.g., country A making a cyber operation against country B appear as though it is being conducted by country C) in order to start 

a war between those two states may run afoul of the chivalry requirement
902 The Military Commander and the Law

- The Tallinn Manual on the International Law Applicable to Cyber Warfare: The manual, 

published in 2013, contains 95 rules related to both the jus ad bellum and jus in bello

aspects of cyber warfare. The manual is not binding international law but rather represents opinions on how the law of armed conflict applies to actions in cyberspace.

Cyber Operations Command and Control

- USCYBERCOM: A sub-unified command belonging to United States Strategic Command, USCYBERCOM is tasked with directing DoD network operation and defense. 

When directed, USCYBERCOM conducts full-spectrum military cyberspace operations 

in order to enable actions in all domains and ensures U.S. and allied freedom of action 

in cyberspace while denying the same to our adversaries.

- Air Force Space Command: The Air Force major command responsible for the Air 

Force cyber mission. Its mission is to provide resilient and cost-effective Space and 

Cyberspace capabilities for the Joint Force and the Nation.

- 24th Air Force/AFCYBER: The operational warfighting organization that establishes, 

operates, maintains, and defends Air Force networks and conducts full-spectrum 

operations in cyberspace. It establishes, operates, and defends Air Force networks to 

ensure warfighters can maintain the information advantage as we prosecute military 

operations. The unit is responsible to conduct the full range of cyber operations. 

While subordinate to Air Force Space Command, 24th Air Force also provides forces 

to USCYBERCOM in its joint mission.
CHAPTER EIGHTEEN Cyberlaw 903

References

18 U.S.C. § 1030

18 U.S.C. § 2510

18 U.S.C. § 2701

50 U.S.C. § 3093

War and National Defense, Title 50, Chapter 36, Subsections I-V

Executive Order 12333, United States Intelligence Activities, 4 December 1981

Presidential Policy Directive-20 (PPD-20), U.S. Cyber Operations Policy (October 2012)

Hague Convention No. IV, Respecting the Laws and Customs of War on Land and Annex Thereto, 

Oct 18, 1907

Additional Protocol to the Geneva Convention of 12 August 1949 (Protocol I), art. 52(2) Oct. 10, 

1980, 1343 U.N.T.S. 137

Additional Protocol to the Geneva Convention of 12 August 1949 (Protocol I), art. 51(2)

Trilateral Memorandum of Agreement Among the Department of Defense, the Department of 

Justice, and the Intelligence Community Regarding Computer Network Attack and Computer 

Network Exploitation Activities, 9 May 2007

DoDD 2310.01E, Department of Defense Detainee Program (19 August 2015)

JP 3-13, Information Operations (27 November 2012), incorporating Change 1, 20 November 2014

AFI 51-402, Legal Reviews of Weapons and Cyber Capabilities (27 July 2011)

A.R. Thomas and James C. Duncan, Annotated Supplement to the Commander’s Handbook on the 

Law of Naval Operations, International Law Studies, Vol. 73, 1999 at 403

Kristen M. Thomasen, Air Power, Coercion, and Dual-Use Infrastructure: A Legal and Ethical 

Analysis, International Affairs Review, Oct. 24, 2008

John A. Warden III, The Enemy as a System, Airpower Journal, Spring, 1995

Air Force Operations and the Law, Ch. 16 Targeting and Weaponeering (2009)

DoD Cyber Strategy (April 2015)

Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001)

Tallinn Manual On the International Law Applicable to Cyber Warfare (2013)

A.R. Thomas and James C. Duncan, Annotated Supplement to the Commander’s Handbook on the 

Law of Naval Operations, International Law Studies, Vol. 73, 1999, at 403

Air Force Operations and the Law (2009), pp 249-250)
904 The Military Commander and the Law
Index 905

Index

A

Absence Without Leave (AWOL). 

See Unauthorized Absence

Abuse

abuse of authority, 472

abusive work environment, 460

alcohol abuse. See Substance Abuse

child abuse. See Child Abuse

domestic abuse, 498

drug abuse. See Substance Abuse

spousal abuse. See Spousal Abuse

Accident Investigations. See Investigations

Acid Test, 471, 472

Acquired Immune Deficiency Syndrome (AIDS), 

344–348

civilian employees, 347

safe sex orders, 346

Acquisition. See also Contracts

planning, 598–600

process, 604–606

Active Guard/Reserve (AGR), 244. 

See also Air National Guard (ANG); 

See also Reserves, Air Force

Administrative Inquiries, 519–521

Admonitions, 30–35

Adoptions, 437

expense reimbursement and tax credit, 339–341

Family and Medical Leave Act (FMLA), 729–731

Adverse Actions, 489

Advising Suspects of Rights. See Suspect Rights

Aero Club, 566

Affirmative Cost Recovery (ACR) Program, 779

Age Discrimination Act, 453

Aircraft Accident Claims. See Claims

Air Emissions. See Clean Air Act

Air Force Board for Correction of Military Records 

(AFBCMR), 306

Air Force Civilian Appellate Review Office 

(AFCARO), 310, 466

Air Force Clemency and Parole Board, 309

Air Force Community Partnership Program 

(AFCP), 621

Air Force Decorations Board, 308

Air Force Disability Review Board, 309

Air Force Discharge Review Board (AFDRB), 308

Air Force Drug Testing Laboratory (AFDTL), 

318–319

Air Force Encroachment Management (AFEM) 

Program, 789

Air Force Information Networks (AFIN), 883

Air Force Office of Special Investigations 

(AFOSI), 141

AFOSI reports, 147

apprehension/arrest, 146

arming, 146

mutual support agreements, 142

organization, 141

release of information, 148

requesting AFOSI support, 141

sources and undercover agents, 146

specialized functions, 144

special victim investigation and prosecution 

(SVIP), 144

Air Force Personnel Board (AFPB), 121, 307

Air Force Reserve (AFR). See Reserves, Air Force

Air Force Review Boards Agency (AFRBA), 

306–311, 465

Air Installation Compatible Use Zone (AICUZ), 

775, 790–791

Air National Guard (ANG), 245–246

administrative and disciplinary action, 247

administrative counselings, admonitions, and 

reprimands, 34

aircraft accident claims, 565

court-martial jurisdiction, 139

curtailments, 248

“dual status”, federal civilian employees and 

Selected Reserve, 715

employer support for the Guard and Reserve 

(ESGR), 493
906 The Military Commander and the Law

fitness program, 384–387

legal assistance, 436

military technicians (MTs), 246

required training, 246

retirement, 498–499

“Title 10” status, 139

“Title 32” status, 139

unauthorized absence, 392–393

Air Quality Control Regions (AQCR), 798

Air Reserve Component (ARC), 244–247.

See also Air National Guard; 

See also Reserves, Air Force

fitness program, 384–387

personnel categories, 244

unauthorized absence, 392–393

Air Reserve Technician (ART), 245. 

See also Reserves, Air Force

Alcohol and Drug Abuse Prevention and Treatment 

(ADAPT) Program. See Substance Abuse

Alimony, 335

Allegations Against Senior Officials and Colonels 

(or Equivalents), 522–524

senior officer unfavorable information file 

(SOUIF), 523

Alternate Dispute Resolution (ADR), 456

Anthrax Immunizations, 349–351

Anti-Deficiency Act (ADA), 627–628, 748

Appeals. See Nonjudicial Punishment (NJP); 

See Court-Martial

Apprehension/Arrest, 146

by civil authorities, 187–191

Arbitrary and Capricious, 472

Archaeological Resources Protection Act 

(ARPA), 784

Area Defense Counsel (ADC), 9

functions, 150

Armed Forces Disciplinary Control Board 

(AFDCB), 542

Army and Air Force Exchange Service (AAFES)

abuse of privileges, 261

privileges, 260

Article 15, 150. 

See also Nonjudicial Punishment (NJP)

Article 31 Rights, 192–196

advisement for civilian suspects, 197

advisement for military suspects, 197

Article 32 Hearing, 19, 150, 169, 185, 212

Article 138 Complaints, 14–18

GCMCA’s responsibilities, 16

procedures, 15

scope, 14

Secretary of the Air Force (SecAF) review, 18

Article 139 Claims, 579–581

Asbestos, 745, 815–816. See Toxic Substances

Assimilative Crimes Act, 135

Assistant Staff Judge Advocates (ASJA), 9

Attorney-Client Relationship, 439

Aviation Claims. See Claims

B

Bad Checks, 337

Bankruptcy, Personal, 332–333

Base Exchange. See Army and Air Force Exchange 

Service (AAFES)

Base Housing

business enterprises, 533

removal from, 427

Base Legal Office, 10

Base Realignment and Closure (BRAC), 791

Bid Protests. See Contracts

Blood Alcohol Test (BAT), 205

Board of Inquiry (BOI), 122

Body Alteration/Modification, 409

Body Piercing, 408

Bona Fide Needs Rule, 625

C

Campaigning and Holding Public Office, 478–479

CAT A (Traditional Reservist). 

See Reserves, Air Force

CAT B (Individual Mobilization Augmentee (IMA)). 

See Reserves, Air Force

Categorical Exclusion (CATEX), 750
Index 907

Cellular Phones, 487

Central Registry Board (CRB), 419

Chain of Command, 2

Chapter 7 Bankruptcy, 332

Chapter 13 Bankruptcy, 332

Charges, 211–213. 

See also Court-Martial

Child

abuse, 418–420

child and youth programs (CYP), 428–429

child care options, 428

child development center (CDC), 428

child support, 335, 423

custody, 421–424, 489

family child care (FCC) homes, 428

Chivalry

cyber law, 901

law of war, 835

Citizenship for Military Members, 303–305

application processing, 305

naturalization through wartime service, 304

posthumous citizenship, 305

Civil Air Patrol (CAP), 566

Civilian Employees, 268–269

discipline, 710–715

drug testing, 695–699

interrogation, 716–718

medical condition affects performance, 708–709

performance and appraisal process, 704–705

unacceptable performances, 703–709

appeals and grievances, 703

workplace searches, 701–702

Civilian Personnel System, 678–682

administrative and adjudicative bodies, 679–680

civilian drug testing program, 694–700

litigation, 681–682

pay systems, 679

workforce structure, 678

Civilian Protective Orders (CPO), 414

Civilians and Dependent Family Members 

Accompanying the Force, 866–867

Civil Rights Act of 1964, 452

Civil Rights Act of 1991, 453, 459

Civil Service Reform Act of 1978 (CSRA), 683

Claims

Air Force claims policy, 550

Article 139 claims, 579–581

aviation claims, 564–567

aero club claims, 566

aircraft accident claims, 565

Civil Air Patrol (CAP), 566

low overflight damage, 565

sonic boom damage, 564

disaster claims, 556

foreign and international claims, 568–572

Foreign Claims Act (FCA), 571–572

International Agreement Claims Act (IACA), 

568–570

jurisdiction and settlement authority, 550

medical cost reimbursement claims, 576–578

payable claims, 554

personal property claims, 551–555

full replacement value (FRV) program, 552

processing guidelines, 552

requirements, 551

statute of limitations, 553

property damage tort claims, 573–575

rental vehicles, 582–588

reports of survey (ROS), 589–593

solatia, 572

tort claims, 558–563

not payable claims, 560–561

payable claims, 559–560

processing and payment, 561–563

Clean Air Act (CAA), 747, 798–802

Enforcement, 801

Clean Water Act (CWA), 803–805

Clemency

accused clemency submissions, 237–238

victim clemency submissions, 238

Collective Bargaining, 690–693. See also Union

Combat-Related Special Compensation 

(CRSC), 495
908 The Military Commander and the Law

Command and Control Vehicle (CACV). 

See Government Owned Vehicles (GOVs)

Command Authority, 2–4

over active duty forces, 3

over civilians, 4

over reservists, 3

Commander-Directed Mental Health Evaluations, 

352–355

Commanders Critical Information Requirement 

(CCIR), 160

Commander’s Inspection Program (CCIP), 754

Command Succession, 5–7

appointment to command, 5

assumption of command, 5

resumption of command after temporary 

absence, 6

special rules and limitations, 6

Commercial Sponsorship, 530–535

games of chance, 534

prohibited on-base commercial Solicitation, 533

solicited, 531

sponsor recognition, 532–533

unsolicited, 531

Commissary

privileges, 261

restrictions on purchases, 262

Competition in Contracting Act (CICA), 601

Compliance Agreement (CA), 765

Comprehensive Environmental Response, 

Compensation, and Liability Act (CERCLA), 

745, 776–777

Computer Fraud and Abuse Act, 884

Computer Misuse Incident Program, 891–892

Computer Monitoring and Stored Communications, 

884–890

Concurrent Retirement and Disability Pay 

(CRDP), 495

Confidential Informants, 143

Confidentiality and Privileged Communications, 

230–234

attorney client privilege, 230

communications to clergy, 230

drug/alcohol abuse treatment patients, 232

family support center program, 233

physician-patient, 230

spousal privilege, 232

victim advocate-victim consultations privilege, 

232

Confinement, 19

Conflicts of Interest, 615–616

Conscientious Objector (CO), 374–377

Consent Order (CO), 765

Contamination Cleanup, 776–780

Continuing Resolution (CR), 631–632

Contraband, 199, 204

Contracting Authority. See Contracts

Contractors

contingency contractor personnel:, 635–639

contractors authorized to accompany the force 

(CAAF), 635

force protection and weapons, 637

individual protective equipment, 636

international law and contractor legal status, 635

medical issues, 636

security services, 638

uniforms, 637

Contracts

administration, 609–612

appropriations to the AF, 623

bid protests, 607–608

claims, 611

communications with contractors, 613–614

competition, 601–603

conflicts of interest, 615–616

contracting authority, 596

contract law, 596–597

debarment, 619

formal contract changes, 609

funding thresholds, 629–630

limited competition, 601

military construction project (MILCON), 629

deployed environment, 852

modifications, 602

operations and maintenance (O&M) projects, 629
Index 909

procurement integrity, 617–618

resolving disputes, 611–612

sole source awards, 601

suspension, 619

terminating a contract, 610–611

unsolicited proposals, 602

unspecified minor military construction project 

(UMMC), 629

utility, 807

warranties, 609

Controlled Position, 367

Control Rosters, 45–47

Counseling, 30–37

Court-Martial

Air Force Reserve, 137

Air National Guard (ANG), 139

appeals, 240–241

duties at trial, 25

excusal, 24

jurisdiction over the offense (RCM 203), 137

jurisdiction over the person (RCM 202), 137

jurisdiction under the UCMJ, 136

military offenses, 136

military status at the time of 

court-martial/NJP, 138

military status at time of offense, 138

nonmilitary offenses, 136

retirees, 139

selection, 24

sentencing, 26

serving as a court member, 24–26

statute of limitations, 140

termination of jurisdiction, 140

testifying as a witness, 27

voir dire, 25

Covert Action, 896

Crime Scene Protection, 142

Criteria Pollutants, 798

Critical Functions, 599

Critical Position, 367

Customary Law, 849

Cyber law, 882–893

electronically stored information request process, 

887–888

Freedom of Information Act (FOIA)/Privacy Act 

(PA) requests vs. ESI requests, 888

Cyberspace Operations, 894–903

covert action, 896

cyber operations command and control, 902

cyberspace attack, 895

cyberspace defense, 895

Intelligence, Surveillance, and Reconnaissance 

(ISR), 895

international law regarding cyberspace 

operations and the use of force, 899–902

D

Debarment, 254–256

family member misconduct, 425

Debt Collector Communications, 501–503

Debt Complaints, 501–504

Deceased, Personal Property, 430–432

Default Judgments, 487

Defective Enlistment, 100

Defense Environmental Restoration Program 

(DERP), 778–779

Defense Personal Property System (DPS), 553

Defense Support of Civil Authorities (DSCA), 

869–874

Demonstrations and Protests, 277

Demotions, 48–51

reasons, 48

reserve members, 51

restoration of grade, 50

Department of Defense Information Networks 

(DODIN), 883

Department of Treasury’s Judgment Fund, 745

Deployed Fiscal Law, 852–855

combatant commander initiative funds, 853

emergency and extraordinary expenses, 853

humanitarian assistance funding, 854

training and equipping of foreign forces, 853–854

Deserter, 388

Direct Payment of Retired Pay, 496–497
910 The Military Commander and the Law

Disability Evaluation and Medical Separation, 346

Disability Evaluation System (DES), 399–405

Disaster Claims. See Claims

Discharges

general (under honorable conditions), 97

honorable, 97

loss of veterans’ benefits, 127

under other than honorable conditions 

(UOTHC), 97

Discrimination, 458, 480–481, 492. 

See also Extremist Activities

1978 Amendments to the Age Discrimination in 

Employment Act, 453

Disposable Retired Pay (DRP), 495

Disposal of Personal Property, 433

Disposition, 393

Distinction

cyber law, 900

law of war, 833

DoD Civilian/Military Service Review Board, 309

Do-It-Yourself (DITY) Moves, 554

Domestic Relations, 437

Domestic Violence, 371

Domicile to Duty (DTD) Transportation. 

See Government Owned Vehicles (GOVs)

Dram Shop Liability, 270

Drinking Water, 742

Driving, 257–259

drunk driving, 269–270

implied consent, 257

revocation, 258

suspension, 258

Drug Abuse. See Substance Abuse

Dual Action Processing, 107

E

Electronically Stored Information (ESI) Request 

Process, 887–888

Emergency Authority, 873

Employee-Certification and Reporting System 

(ECARS), 801

Employment, Off-Duty, 670–671

Endangered Species Act (ESA), 781

Energy Savings Performance Contract (ESPC), 826

Enhanced Use Lease (EUL), 827

Enlisted Aides (EAs), 675–676

Enlisted Evaluation System (EES), 58–62

Environmental Issues

air installation compatible use zone (AICUZ) 

program, 775, 790–791

Clean Air Act (CAA), 798–802

cleanup of contamination, 776–780

Clean Water Act (CWA), 803–805

encroachment, 789–792

hearings, 794–797

types, 793

environmental assessment (EA), 751

environmental enforcement actions, 765–769

environmental impact analysis process (EIAP), 

750, 774

environmental impact statement (EIS), 750, 751

environmental inspections, 754

environmental law overseas, 818–825

Federal Noise Control Act (FNCA), 790

fees and taxes, 748–749

installation restoration program (IRP), 775

liability, 770–773

media relations, 774–775

National Environmental Policy Act (NEPA), 

750–752

natural and cultural resource preservation laws, 

781–788

overseas, 818–825

relations with Indian tribes, 786–787

Safe Drinking Water Act (SDWA), 805–806

solid and hazardous wastes, 810–814

statutes, 742, 770

threatened or endangered species, 782

toxic substances, 815–817

utility law, 826–828

waivers of sovereign immunity, 747

water rights, 807–809

Environmental Law Field Support Center, 749

Environmental Management System (EMS), 753
Index 911

Environmental Protection Agency (EPA), 743

Environmental Review (ER), 822

Environmental Study (ES), 822

Environmental Tort Claims, 745

Environment, Safety, and Occupational Health 

(ESOH), 756

Equal Employment Opportunity Act of 1972, 452

Equal Employment Opportunity Commission 

(EEOC), 680

Equal Employment Opportunity (EEO)

complaint process, 719–725

civil action, 722

EEOC hearing, 721

remedial actions, 722–723

No Fear Act, 724

Equal Opportunity and Treatment Program 

(EOT), 458

Equal Opportunity (EO), 306, 452–458. 

See also Military Equal Opportunity (MEO)

complaint processing procedures, 456–458

Establishment Clause, 279

Ethical Conduct, 642–643

Evaluation Systems. 

See Enlisted Evaluation System (EES); 

See Officer Evaluation System (OES)

Eviction, 486

Excusal, 24

Expedited Transfer (ET), 163, 316

Extremist Activities, 482–485

command options, 485

F

Failing to Attain Physical Fitness Standards, 

382–383

Failing to Present a Professional Military Image, 

381

Failure to Go, 388

Fair Debt Collection Practices Act (FDCPA), 501

Fair Labor Standards Act, 735–739

Family Advocacy Officer (FAO), 419

Family and Medical Leave Act (FMLA), 729–731

Family Member Misconduct, 425–426

commander responsibilities and options, 425

Family Probate, 443

Federal Labor Management. See also Union

employee rights, 683

Fair Labor Standards Act, 735–739

management rights, 684

overview, 683–689

unemployment compensation, 732–734

Federal Labor Relations Authority (FLRA), 680

Federal Magistrate Program, 134, 134–135

jurisdiction, 134

Federal Mediation and Conciliation Service 

(FMCS), 680

Federal Medical Care Recovery Act (FMCRA), 576

Federal Noise Control Act (FNCA), 790

Federal Reserved Rights Doctrine, 807

Federal Service Impasses Panel (FSIP), 680

Federal Service Labor-Management Relations 

Statute (FSLMRS), 683

Federal Tort Claims Act (FTCA), 745

Federal Wiretap Act, 884

Final Governing Standards (FGS), 819

Financial Responsibility, 334–337

Financial Support to Dependents, 334

Finding of No Significant Impact (FONSI), 750

Fiscal Law, 624–628. 

See also Contracts

anti-deficiency act (ADA), 627

bona fide needs rule, 625

common questionable expenses, 624

continuing resolution (CR), 631–632

deployed fiscal law, 852–855

expired and closed funds, 626

financial disclosure forms, 644–646

confidential financial disclosure report 

(OGE 450), 644

periodic transaction report (OGE 278T), 646

public financial disclosure report 

(OGE 278e), 645

funding gaps, 632–633

micro purchase, 604

official Rrepresentation funds (ORF), 668–669
912 The Military Commander and the Law

using government funds for mementos and gifts, 

662

Fitness Program, 378–387

Flying Evaluation Board (FEB), 525–529

procedures and guidelines, 526–527

review process, 528

rights of the respondent, 527

Foreign and International Claims. See Claims

Foreign Claims Act (FCA), 571–572

Foreign Criminal Jurisdiction, 864–868

Fraternization and Unprofessional Relationships, 

289, 327–329

Freedom of Information Act (FOIA), 148, 291–294

exemptions, 291

processing, 292

requests, 292

Free Exercise Clause, 279

Free Speech, 276–278

Full Replacement Value (FRV) Program, 552

Funding Gaps, 632–633. See also Fiscal Law

Funding Thresholds, Construction, 629–630

Fund-raising, 480

G

Games of Chance, 534

General Court-Martial Convening Authority 

(GCMCA), 14–20

Geneva, 832

Geographically Separated Unit (GSU), 441

Gifts, 647–649

foreign gifts, 654–655

honorarium, 656

honorary memberships, 658

recognition of donors, 648

rejecting gifts, 647

to superiors, 652

travel, 650

using government funds, 662–663

voluntary service, 648

Government Communications Systems, 664–667

monitoring, 664

policy, 664

prohibited uses, 666–667

security measures, 665–666

Government Owned Vehicles (GOVs), 659–661

command and control vehicle (CACV), 660

domicile to duty (DTD) transportation, 660

Government Purchase Card (GPC), 604

micro purchase, 604

Ground Accident Investigations. See Investigations

G-series Orders, 158

H

Hague, 833

Hardship, Voluntary Separation, 117

Hate Groups, 480–481

Hazardous Air Pollutants (HAPS), 799

Hazardous Wastes (HW), 742

Hazing, 330–331

Health Insurance Portability and Accountability Act 

(HIPAA), 266, 361–366

commanders’ access to information, 365–366

permissible disclosures, 363–364

Honor

law of war, 835

Honoraria, 656–657

Honorary Memberships, 658

Hostile Work Environment Sexual Harassment, 

461–463

Host Nation (HN) Law Violations, 864–865

Human Immunodeficiency Virus (HIV), 344–348

Humanitarian and Civic Assistance (HCA), 854

Humanitarian Assistance Funding, 854

Humanitarian Reassignments/Deferments, 315–317

Humanity

law of war, 835

Human Rights Violations, 847. 

See also International Human Rights Law 

(IHRL)

I

Immediate Response Authority (IRA), 872–873

Immigration and Nationality Act (INA), 303

Immunity, 11, 221–223
Index 913

Immunizations, Anthrax, 349–351

Inactive Duty Training (IDT). 

See Reserves, Air Force

Indian Tribes, 786–787

Individual Mobilization Augmentees (IMAs) 

(CAT B), 244, 245. 

See also Reserves, Air Force

Individual Ready Reserve (IRR), 244

involuntary reassignment, 251

voluntary reassignment, 250

Inherently Governmental Functions (IGFs), 

598–599

Inquiry, 520

Inspections and Searches, 198–206. 

See also Environmental Inspections

inspections, 198, 203–204, 265

inventories, 198, 204–205

searches, 198, 199–202

civilian employee workplace searches, 

701–702

use of military working dogs, 206

Inspector General (IG), 209–210

complaints resolution process, 469–475

Installation Encroachment Management Team 

(IEMT), 789

Installation Jurisdiction, 131–133

Installation Restoration Program (IRP), 775

Installment Contracts, 487

Insurance, 488

Integrated Cultural Resources Management Plan 

(ICRMP), 784

Intelligence Oversight (IO), 856–863

Intelligence, Surveillance, and Reconnaissance 

(ISR), 895–896

Intergovernmental Support Agreements 

(IGSAs), 621

International Agreement Claims Act (IACA), 

568–570

International Agreement (IA), 818, 848, 850

International Human Rights Law (IHRL), 845–847

International Law, 848–849

Interrogation, Civilian Employees, 716–718

Investigations. 

See also Air Force Office of Special 

Investigations (AFOSI)

accident investigations, 514–518

authority to investigate, 519

commander-directed investigation (CDI), 

453, 469

IG investigations, 469

safety and accident investigations, 514–518

sexual assault investigations, 162

sexual harassment investigations, 463

Involuntary Separation of Enlisted, 94–106

convenience of the government discharges, 98

defective enlistments, 100

discharge in the interest of national security, 105

entry level performance or conduct, 101

failure in drug or alcohol abuse treatment, 102

failure in the fitness program, 106

joint processing, 106

mandatory discharges, 98

medical discharges, 107

misconduct discharges, 102

civilian conviction, 103

commission of a serious offense, 104

drug abuse, 104

minor disciplinary infractions, 103

pattern of misconduct, 103

sexual assault, 105

post traumatic stress disorder (PTSD), 96

procedure, 109–112

board hearing, 111

notification, 110

preprocessing, 109

retire in lieu, 107

unsatisfactory performance, 101

J

Judge Advocate, 9

Jurisdiction

court-martial jurisdiction, 136

installation jurisdiction, 131–133

legislative jurisdiction, 131–132
914 The Military Commander and the Law

Jury Service (Civilian) by Military Members, 

342–343

K

Key Spouse Program, 672–674

L

Landlord-Tenant Lease Termination, 486

Lautenberg Amendment, 371–373

Law of Armed Conflict (LOAC). 

See Law of War (LoW)

Law of War (LoW), 832–836, 845

Lead-Based Paint (LBP), 742, 816–817. 

See Toxic Substances

Lead Environmental Component (LEC), 819

Legal Assistance Program, 436–439

Letter of Admonition (LOA), 31

Letter of Counseling (LOC), 31

Letter of Reprimand (LOR), 31

Liability of Commanders and Supervisors, 11–12

Limited Privilege Suicide Prevention

(LPSP) Program, 356–360

Line of Duty (LOD) Determinations, 394–398

Loss of Veterans’ Benefits, 127–128

Low Overflight Damage. See Claims

M

Magistrate Program

federal, 134–135

military, 152–153

Maltreatment, 410

Management Internal Control Toolset (MICT), 755

Maximum Available Control Technology 

(MACT), 800

Maximum Rates of Interest, 487

Media Relations, 182–186

national defense areas (NDAs), 509

Medical Cost Reimbursement Claims. See Claims

Medical Discharges, 107

Medical Evaluation Board (MEB), 99

Memberships. 

See Hate Groups; 

See Honorary

Mental Disorders, 99

Mental Health Evaluations, 352–355

Merit Systems Protection Board (MSPB), 467

Micro Purchases, 604

Military Claims Act (MCA), 745

Military Construction Projects (MILCON). 

See Contracts

Military Equal Opportunity (MEO), 454, 480

Military Magistrate Program, 152–153

Military Necessity

cyber law, 899

law of war, 833

Military Protective Orders (MPO), 414

Military Spouses Residency Relief Act 

(MSRRA), 488

Military Technicians (MTs). 

See Air National Guard (ANG)

Military Working Dogs, 199–200

Morale, Welfare, and Recreation (MWR), 536

N

National Ambient Air Quality Standard 

(NAAQS), 798

National Defense Area (NDA), 506–510

National Environmental Policy Act (NEPA), 750–752

National Guard. See Air National Guard (ANG)

National Historic Preservation Act (NHPA), 783

National Park Service (NPS), 783

National Pollutant Discharge Elimination System 

(NPDES), 804

National Priorities List (NPL), 778

National Register of Historic Places (NRHP), 783

National Security Cases, 154–156

National Security Exemption (NSE), 800

Naturalization. See Citizenship

New Source Performance Standards (NSPS), 799

New Source Review (NSR), 799

No Contact Orders, 412–414

No Fear Act, 724
Index 915

Nonappropriated Funds (NAF), 537–538

Nonjudicial Punishment (NJP), 74–92

appeals, 80

early removal, 90

enlisted unfavorable information file, 

NJP entries, 89

member rights, 77

mitigation, 84

prerequisites, 74

procedures, 76

punishment limitations, 79

remission, 85

set aside, 85

specific rules involving NJP for reserve, 81

suspension, 83

vacation actions, 86

Notaries, 440–442

Not Board Entitled, 121

Notice of Deficiency (NOD), 765

Notice of Non-compliance (NON), 765

Notice of Violation (NOV), 765

O

Occupational Safety and Health Administration 

(OSHA), 759–764

citations, 762–763

regulations and regulators, 763

Off-Duty Employment. See Employment

Offensive Conduct, 289

Office of Airmen’s Counsel (OAC), 401

Office of Personnel Management (OPM), 680

Office of Special Counsel, 680

Officer Evaluation System (OES), 58–62

Officer Grade Determinations, 405–406

Officer Separations, 117–122

discharge procedures, 121

involuntary separations, 118–119

resignation in lieu, 122

voluntary separation, 117

Official Representation Funds (ORF), 668–669

Off-Limits Establishments, 542–543

Open House Requirements and Responsibilities, 

277

Operations and Maintenance (O&M). See Contracts

Ostracism, 410

Overseas Contingency Operations 

(OCO Funds), 852

Overseas Environmental Baseline Guidance 

Document (OEBGD), 819

Overseas Environmental Impact Statement 

(OEIS), 821

P

Participating Individual Ready Reservist (PIRRs). 

See Reserves, Air Force

Performance Reports, 59–60

referral reports, 61

Personal Information File (PIF)

rehabilitation evidence, 235–236

Personal Liability, 11–13

common law torts, 12

constitutional torts, 11

environmental torts, 12

representation of federal employees in civil 

lawsuits, 12

Personally Identifiable Information (PII), 892–893

Personally Procured Moves (PPM), 554

Personal Property, Disposal, 433

Personnel Reliability Program (PRP), 159, 367–370

suspension from, 267

Personnel Security Appeals Board (PSAB), 310

Physical Disability Board of Review (PDBR), 310

Physical Fitness Program. See Fitness Program

Piercings, Body, 408–409

Political Activities, 277–280

campaigning and holding public office, 478–479

permitted activities, 476

political bumper stickers, 476

political buttons, 476

political clubs, 476–477

political communications, 289

prohibited activities, 477–478

Pollution Prevention Program, 742, 813
916 The Military Commander and the Law

Polychlorinated Biphenyls (PCBs). 

See Toxic Substances

Polygraph Program, 144

Posse Comitatus, 511–513

exceptions to, 512

Post-Trial Actions, 237–238

appellate review, 240–241

clemency submissions, 237–238

convening authority action, 239

Potential to Emit (PTE), 799

Power Purchase Agreement (PPA), 827

Powers of Attorney (POA), 444–445

durable POA, 445

general POA, 445

special POA, 445

Preliminary Hearing Officer (PHO), 19

Preliminary Inquiry into Reported Offenses, 

207–208

Pre-Service Mortgages, 488

Pretrial

pretrial agreement (PTA), 19, 224–226

pretrial confinement reviewing officer (PCRO), 19

restraint and confinement, 214–220

prerequisites, 215

types of pretrial restraint, 215

who may order, 215

Preventive Law, 438

Prior Appropriation Doctrine, 807

Privacy Act, 148, 266, 295–299

denials, 297–298

disclosure procedures, 296–297

special handling requirements, 298

Private Organization (PO), 272

operating rules, 272

spouses’ clubs, 274

Privileged Communications. See Confidentiality and 

Privileged Communications

Probable Cause Search, 152, 265

Probation and Rehabilitation (P&R) for Enlisted, 

113–116

other command options, 116

procedures, 114

terminating P&R, 116

who is eligible, 113

Procurement Integrity Act, 617–618

Professional and Unprofessional Relationships, 

327–329

Promotion

enlisted, 69–71

deferral, 70

non-recommendation, 69

promotion selection records, NJP entries, 91

reserve enlisted members, 71

withholding of promotion, 69

officer, 66–68

delaying a promotion, 67

not qualified for promotion (NQP), 66

promotion selection records, NJP entries, 91

removal from a promotion list, 66

Reserve and Air National Guard Officers, 68

Property Damage Tort Claims in Favor of the United 

States, 573–575

Proportionality

cyber law, 900

law of war, 834

Protected Communication (PC), 470

Protective Orders, 414–415

Psychotherapist Patient Privilege, 358–360

Public Water Systems (PWS), 805

Q

Quid Pro Quo, 460

R

Radioactive Waste, 748

Radon. See Toxic Substances

Raffles, 534, 539–541, 670–672

Random Drug Testing, 265

Ready Reserve, 244

Record of Decision (ROD), 750

Redlining, 69

Reenlistment. 

See Selective Reenlistment Program (SRP)

Referral Reports, 61–62
Index 917

Regional Environmental Counsel, 749

Register to Vote, 476

Regular Active Duty Retired, 244

Regular Air Force, 244

Rehabilitation Act of 1973, 452

Religious Freedom Restoration Act (RFRA), 279

Religious Issues, 279–287

accommodation of religious practices, 282–284

expression in the workplace, 280

non-standard grooming and personal 

appearance, 285

official communications, 282

prayer, 281

religious apparel, 284–285

religious displays, 281

social media, 286

Removal from Base Housing, 427

Rental Vehicles, 582–588

Report of Investigation (ROI), 147

Reports of Survey (ROS), 589–593

Reprimands, 30–37

Reprisal, 458, 470–472

special requirements, 474

Reserves, Air Force, 244–245

active duty (AD), 137

administrative and disciplinary action, 246

administrative counselings, admonitions, and 

reprimands, 34

aircraft accident claims, 565–566

annual tour (AT), 137

court-martial jurisdiction, 137

curtailments, 248

demotion, 51

employer support for the Guard and Reserve 

(ESGR), 493

fitness program, 384–387

inactive duty training (IDT), 137, 245

individual mobilization augmentees (IMAs) 

(CAT B), 245

legal assistance, 436

participating individual ready reservist 

(PIRRs), 245

retirement, 498–499

specific rules involving NJP, 81

traditional reservist (CAT A), 245

unauthorized absence, 392–393

unit training assemblies (UTAs), 245

unit training assembly (UTA), 138

Resource Conservation and Recovery Act (RCRA), 

745, 779–780

Responsible Management Official (RMO), 470

Restoration Advisory Board (RAB), 778

Restricted Reports. See Sexual Assault

Restriction Complaints, 473

special requirements, 474

Retaliation, 410–411

Retirees, 139

combat-related special compensation 

(CRSC), 495

concurrent retirement and disability pay 

(CRDP), 495

court-martial jurisdiction, 139

direct payment of retired pay, 496–497

disposable retired pay (DRP), 495

division of retired pay, 495

legal assistance, 436

retired reserve, 244

Retire in Lieu, 107

Riparian Rights Doctrine, 807

Rules for the Use of Force (RUF), 837–843

Rules of Engagement (ROE), 837–843

S

Safe Drinking Water Act (SDWA), 747, 805–806

Safe Sex Orders, 104, 346

Safety and Accident Investigations, 514–518

accident investigations, 516–518

potential problems, 515–516

Safety Investigation Board (SIB), 514

SAF Remissions Board, 309

Searches. See Inspections and Searches

Secretary of the Air Force Personnel Council 

(SAFPC), 306–307

Security Services, 638
918 The Military Commander and the Law

Seizure, 152

Selective Reenlistment Program (SRP), 52–54. 

See also Reserve Reenlistments

denial of reenlistment, 52

member appeals of denial of reenlistment, 53

reserve reenlistments, 55–57

standard for denial of reenlistment, 52

Self-Identification (Drug/Alcohol Abuse), 264

Senior Officer Unfavorable Information File 

(SOUIF), 523

Senior Officials and Colonels (or Equivalents) 

Misconduct Allegations, 522–524

Sentencing, 26

Separations. See also Discharges

dual action processing of administrative and 

medical discharges, 107

enlisted, 94–106, 109–112

officer, 117–122

reservists, 123–126

Service Charges, 748

Servicemembers Civil Relief Act (SCRA), 

437, 486–489

Sexual Assault

allegations of sexual assault

command response, 159, 172–175, 174

SAPR response, 161

case management group (CMG) meetings, 164

commanders critical information requirement 

(CCIR), 160

definition, 157

expedited transfers (ET), 163

independent investigations, 162

initial disposition authority, 19

required reports, 160

restricted reports, 162

retaliation, 164

Sexual Assault Prevention and Response 

(SAPR), 157–167

sexual assault response coordinator (SARC), 157

special victim investigation and prosecution 

(SVIP), 144

special victims’ counsel (SVC), 9, 168–171, 230

unrestricted reports, 161

victim advocate (VA), 158

victim misconduct, 165, 174

Sexual Harassment, 459–468

civilian employee complainant, 466–468

hostile work environment sexual harassment, 

461–463

investigations, 463

military complainant, 464–465

quid pro quo, 460

Sikes Act, 781

Small Unmanned Aircraft Systems (sUAS), 

875–880

Snack Bars, 544–545

Social Media, 286, 288–290

official use, 288

personal use, 289

Solatia, 572

Sole Source Awards. See Contracts

Solicited Commercial Sponsorship, 531–534

Solid and Hazardous Wastes, 810–814

Solid Waste Disposal Act (SWDA), 810

Solid Waste Management Plan (SWMP), 823

Special Access, 154

Special Assistant United States Attorney 

(SAUSA), 134

Special Court-Martial Convening Authority 

(SPCMCA), 19–20

administrative action duties, 20

military justice duties, 19

Special Victims’ Counsel (SVC), 9, 168–171, 230

Spousal Abuse, 418–420. 

See also Lautenberg Amendment

maltreatment, 418

Spouse, 20/20/15, 20/20/20, 499

Spouses’ Clubs. See Private Organizations

Staff Judge Advocate (SJA), 9–10

Standby Reserve, 244

Standing Rules for the Use of Force (SRUF), 

837, 843

Standing Rules of Engagement (SROE), 

837–838, 842
Index 919

State Implementation Plan (SIP), 751, 798

Status of Forces Agreement (SOFA), 818, 865–866

absence of a SOFA, 867

Statute of Limitations, 140

Stay of Proceedings, 487

Stored Communications Act, 885

Substance Abuse, 263–271

administrative discharge for drug abuse, 267

AF alcohol abuse policy, 263

AF drug use policy, 263

alcohol and drug abuse prevention and treatment 

(ADAPT) program, 263, 265–266

civilian drug testing, 695–699

dram shop liability, 270

management of drug and alcohol abusers, 266

treatment team (TT), 266

Summary Court Officer (SCO), 430–432

Superfund, 776

Supremacist Causes, 458

Survivor’s Benefit Plan (SBP), 496

Suspect Rights, Advising, 192–196

T

Tattoos and Brands, 407

Tax Assistance Program, 437, 447–449, 488

Testator, 443

Testifying as a Witness, 27

Third Party Allotments, 335

Third Party Site (TPS) Program, 779

Threatened Airman Program, 147

Title 10, 896

Title 50, 896

Title VII of the Civil Rights Act of 1964, 

452, 459, 462–463

Tort Claims. See Claims

Total Force, 245

Toxic Substances, 815–817

Toxic Substances Control Act (TSCA), 810, 815

Traditional Reservist (CAT A), 245. 

See also Reserves, Air Force

Training and Equipping of Foreign Forces, 853–854

Transitional Compensation, 180–181

Travel, 650–651

Trial

format, 227–229

return of military personnel, employees, and 

family members from overseas, 300–302

U

Unauthorized Absence, 388–391

Underground Storage Tank (UST), 742, 810, 

812–813

Under Other Than Honorable Conditions (UOTHC), 

97. See also Discharges

Unemployment Compensation, 732–734

Unfavorable Information File (UIF), 39–44

access and review, 40

nonjudicial punishment entries, 89

requirements for enlisted personnel, 42

requirements for officers, 43

retention and disposition, 40

Unfavorable Personnel Action (UPA), 470

Unified Combatant Command (UCC), 818

Uniform Child Custody Jurisdiction and 

Enforcement Act (UCCJEA), 421

Uniformed Services Employment and 

Reemployment Rights Act (USERRA), 

490–493

Uniformed Services Former Spouses’ Protection Act 

(USFSPA), 494–500

division of retired pay, 495

Union

collective bargaining, 690–693

collective bargaining agreement (CBA), 684

dues allotments, 687

official time, 686–687

representation rights and duties, 684–686

unfair labor practices, 687–689

Unit Effectiveness Inspection (UEI), 755

Unit Training Assemblies (UTAs). 

See Reserves, Air Force

Unlawful Command Influence (UCI), 21–23

Unnecessary Suffering

cyber law, 900
920 The Military Commander and the Law

Unofficial Activities, 544–545

Unprofessional Relationships. See Fraternization 

and Unprofessional Relationships

Unrestricted Reports. See Sexual Assault

Unspecified Minor Military Construction Projects 

(UMMC). See Contracts

Urinalysis Program, 318–323. 

See also Substance Abuse

urinalysis checklist for commanders, 324–326

U.S. Citizenship and Immigration Services 

(USCIS), 305

Utility Energy Service Contracts (UESC), 827

Utility Law, 826–828

V

Vehicle Lease Termination, 486

Verbal Counseling, 30

Veterans Affairs (VA), 127–128

combat-related special compensation 

(CRSC), 495

concurrent retirement and disability pay 

(CRDP), 495

loss of benefits, 127

veterans’ employment and training service, 493

Victim Advocate. See Sexual Assault

Victim and Witness Assistance Program (VWAP), 

176–179

Victims’ Rights, 177–178

Voir Dire, 25

Voluntary Service Gift, 648

Volunteer Income Tax Assistance (VITA), 447

Volunteer Services, 546–548

Volunteer Victim Advocates (VVA). 

See Sexual Assault

Voter Registration, 476

W

Water Rights, 807–809

federal reserved rights, 807

prior appropriation, 807

Riparian rights, 807

Weingarten Rights, 685

Whistleblower Protection Act, 

458, 470–472, 726–728

Wills, 443–444

family probate, 443

testator, 443

Witnesses, 520

Working Dogs, 199–200

Workplace, 460
Acronyms 921

ACRONYMS

A

AAC Assignment Availability Code

AAFES Army and Air Force Exchange Service

AC Advisory Circular

ACA Airman Comprehensive Assessment

ACHP Advisory Council on Historic Preservation 

ACSA Acquisition and Cross-Servicing 

Agreements

AD Active Duty

ADA Americans With Disabilities Act

ADA Anti-Deficiency Act

ADAPT Alcohol and Drug Abuse Prevention and 

Treatment Program

ADC Area Defense Counsel

ADCON Administrative Control

ADEA Age Discrimination in Employment Act

ADHD Attention Deficit Hyperactivity Disorder

ADR Alternative Dispute Resolution

ADSC Active Duty Service Commitment

AF IMT Air Force Information Management Tool

AFAM Air Force Assigned Mission

AFBCMR Air Force Board for Correction of 

Military Records

AFCAF Air Force Central Adjudication Facility

AFCARO Air Force Civilian Appellate Review Office

AFCCA Air Force Court of Criminal Appeals

AFCEC Air Force Civil Engineer Center

AFCP Air Force Community Partnership Program

AFDRB Air Force Discharge Review Board

AFDTL Air Force Drug Testing Laboratory

AFEM Air Force Encroachment Management 

Program 

AFFARS Air Force Federal Acquisition Regulation 

Supplement

AFFMS Air Force Fitness Management System

AFI Air Force Instruction

AFIN Air Force Information Network

AFNET Air Force Network

AFOSI Air Force Office of Special Investigations

AFP Appropriated Fund

AFPB Air Force Personnel Board

AFPC Air Force Personnel Center

AFPD Air Force Policy Directive

AFR Air Force Reserve

AFRBA Air Force Review Boards Agency

AFRC Air Force Reserve Component

AFROTC Air Force Reserve Officer Training Corps

AFSC Air Force Specialty Code

AGR Active Guard Reserve

AIB Accident Investigation Board

AICUZ Air Installation Compatible Use 

Zone Program

AIDS Acquired Immune Deficiency Syndrome

AJ Administrative Judge

ALJ Administrative Law Judge

ALO Wing Accounting Liaison Officer

ANG Air National Guard

AOR Area of Responsibility

APA Advanced Payment Act

APZ Above Promotion Zone

AQCR Air Quality Control Regions

ARC Air Reserve Component

ARMS Automated Records Management System

ART Air Reserve Technician

ASBCA Armed Services Board of Contract Appeals

ASJA Assistant Staff Judge Advocate

AT Annual Tour

ATC Air Traffic Control

AVIP Anthrax Vaccine Immunization Program

AWOL Absence Without Leave

B

BAA Business Associate Agreement

BAC Blood Alcohol Content

BAH Basic Allowance for Housing

BAT Blood Alcohol Test

BMI Body Mass Index

BOI Board of Inquiry

BRAC Base Realignment and Closure

BRAC Breath Alcohol Content

BX Base Exchange
922 The Military Commander and the Law

C

CA Compliance Agreement

CA Convening Authority

CAA Clean Air Act

CAAF Court of Appeals for the Armed Forces

CACV Command and Control Vehicles

CAP Civil Air Patrol

CAT A Category A Reservist

CAT B Category B Reservist

CAtAF Contractors Authorized to Accompany 

the Force

CATEX Categorical Exclusion

CBA Collective Bargaining Agreement

CBRN Chemical, Biological, Radiological, Nuclear

CBRNE Chemical, Biological, Radiological, Nuclear, 

and Explosives 

CCIF Combatant Commander Initiative Funds

CCIP Commander’s Inspection Program

CCIR Commanders Critical Information 

Requirement

CCS Clinical Case Staffing

CDA Contract Disputes Act

CDC Child Development Center

CDE Commander-Directed Evaluation

CDI Commander-Directed Investigation

CE Civil Engineer/Engineering

CERCLA Comprehensive Environmental Response, 

Compensation and Liability Act

CERP Commander’s Emergency Response 

Program

CFR Code of Federal Regulations

CI Critical Information

CI Counterintelligence

CICA Competition in Contracting Act

CMG Case Management Group

CND Computer Network Defense

CO Conscientious Objector

CO Consent Order

CO Contracting Officer

COB Coordination of Benefits

COCOM Combatant Commander

COE Conditions of Employment

COFC Court of Federal Claims

COMAFFOR Commander, Air Force Forces

COMPUSEC Computer Security

CONUS Continental United States

CPA Certified Public Accountant

CPO Civilian Protective Order

CPS Civilian Personnel Section

CR Continuing Resolution

CRB Central Registry Board

CRDP Concurrent Retirement and Disability Pay

CRSC Combat-Related Special Compensation

CSAF Chief of Staff of the Air Force

CSC Air Force Claims Service Center 

CSMRT Child Sexual Maltreatment Response Team

CSRA Civil Service Reform Act

CTO Commercial Travel Office

CUI Controlled Unclassified Information

CWA Clean Water Act

CYP Child and Youth Programs

D

DAVA Domestic Abuse Victim Advocate

DCO Defensive Cyberspace Operations

DDRPM Drug Demand Reduction Program 

Manager

DeCA Defense Commissary Agency

DERP Defense Environmental Restoration 

Program

DES Disability Evaluation System

DFARS Defense Federal Acquisition Regulation 

Supplement

DFAS Defense Finance and Accounting Service

DITY Do-It-Yourself Move

DLC Duty Limiting Conditions

DNIF Duty Not Involving Flying

DoD Department of Defense

DoDEA Department of Defense Education Activity

DoDI Department of Defense Instruction

DODIN Department of Defense Information 

Network

DOJ Department of Justice

DOL Department of Labor
Acronyms 923

DOS Date of Separation

DOS Department of State

DPM Disability Program Manager

DPS Defense Personal Property System

DRP Disposable Retired Pay

DSCA Defense Support of Civil Authorities

DTD Domicile to Duty

DTM Directive-Type Memorandum

DTMO Defense Travel Management Office

DTPAM Drug Testing Program Administrative 

Manager

DUI Driving Under the Influence

DUSTWUN Duty Status Whereabouts Unknown

DWI Driving While Intoxicated

E

EA Enlisted Aide

EA Environmental Assessment

EA Epidemiological Assessment

EAD Extended Active Duty

EAP Employee Assistance Program

ECARS Employee-Certification and Reporting 

System

EEO Equal Employment Opportunity

EEOC Equal Employment Opportunity 

Commission

EES Enlisted Evaluation System

EFT Electronic Funds Transfer

EIAP Environmental Impact Analysis Process

EIS Environmental Impact Statement

ELS Entry Level Separation

EM Emergency Management

EMS Environmental Management System

EO Equal Opportunity

EO Executive Order

EOD Explosive Ordinance Disposal

EOT Equal Opportunity and Treatment

EPA Environmental Protection Agency

EPR Enlisted Performance Report

EPTS Existed Prior to Service

ER Environmental Review

ERAB Evaluation Reports and Appeals Board

ES Environmental Study

ESGR Employer Support for the Guard 

and Reserve

ESI Electronically Stored Information

ESOHC Environment, Safety and Occupational 

Health Council

ESPC Energy Savings Performance Contract

ET Expedited Transfer

ETS Expiration of Term of Service

EUL Enhanced Use Lease

EXORD Execution Order

F

FA Fitness Assessment

FAA Federal Aviation Administration

FAC Family Advocacy Committee

FAC Fitness Assessment Cell

FAD Final Agency Decision

FAO Family Advocacy Officer

FAP Family Advocacy Program

FAR Federal Acquisition Regulation

FCA Foreign Claims Act

FCC Foreign Claims Commission

FCC Family Child Care

FDCPA Fair Debt Collection Practices Act

FDM Financial Disclosure Management

FEB Flying Evaluation Board

FECA Federal Employees Compensation Act

FGS Final Governing Standards

FI Foreign Intelligence

FIP Fitness Improvement Program

FLRA Federal Labor Relations Authority

FLSA Fair Labor Standards Act

FM Financial Management

FMCRA Federal Medical Care Recovery Act

FMCS Federal Mediation and Conciliation Service

FMLA Family and Medical Leave Act

FNCA Federal Noise Control Act

FOIA Freedom of Information Act

FONSI Finding of No Significant Impact

FOUO For Official Use Only

FPEB Formal Physical Evaluation Board
924 The Military Commander and the Law

FRV Full Replacement Value

FSC Family Support Center

FSIP Federal Service Impasses Panel

FSLMRS Federal Service Labor-Management 

Relations Statute

FSO Financial Services Office

FSS Force Support Squadron

FTCA Federal Tort Claims Act

FTS Full-Time Support

FY Fiscal Year 

G

G claims Government Claims

GAIB Ground Accident Investigation Board

GAO Government Accountability Office

GARS Government Administrative Rate 

Supplement

GCM General Court-Martial

GCMCA General Court-Martial Convening 

Authority

GCS Ground Control Station

GO General Officer

GOQ General Officer Quarters

GOV Government Owned Vehicle

GPC Government Purchase Card

GS General Schedule

GSA General Services Administration

GSU Geographically Separated Unit

GTC Government Travel Card

GWOT Global War on Terrorism

H

HA Humanitarian Assistance

HAPS Hazardous Air Pollutants

HC Chaplin

HCA Humanitarian and Civic Assistance

HIPAA Health Insurance Portability and 

Accountability Act

HIV Human Immunodeficiency Virus

HN Host Nation

HQ Headquarters

HRVRT High Risk for Violence Response Team

HYT High Year Tenure

HW Hazardous Wastes

I

IA Information Assurance

IA International Agreement

IACA International Agreement Claims Act

IAW In Accordance With

ICRMP Integrated Cultural Resources 

Management Plan 

IDA Initial Denial Authority

IDES Integrated Disability Evaluation System

IDIQ Indefinite Delivery, Indefinite Quantity

IDT Inactive Duty Training

IEMT Installation Encroachment Management 

Team

IG Inspector General

IGF Inherently Governmental Functions

IGSAs Intergovernmental Support Agreements

IHL International Humanitarian Law

IHRL International Human Rights Law

ILOD In the Line of Duty

IMA Individual Mobilization Augmentee

IMPAC International Merchant Purchase 

Authorization Card

INA Immigration and Nationality Act

INCAP Incapacitation

ING Inactive National Guard

IO Investigating Officer

IO Intelligence Oversight

IPEB Informal Physical Evaluation Board

IPZ In Promotion Zone

IQT Initial Qualification Training

IR Individual Reservist

IRA Immediate Response Authority

IRB Institutional Review Board

IRD Investigations and Resolutions Division

IRR Individual Ready Reserve

IRS Internal Revenue Service

ISD Incident Status Determination

ISR Intelligence, Surveillance, and 

Reconnaissance
Acronyms 925

J

JA Judge Advocate

JER Joint Ethics Regulation

JFC Joint Force Commander

JS Joint Staff

JTR Joint Federal Travel Regulation

L

LBP Lead-Based Paint

LEC Lead Environmental Component

LLFSC Labor Law Field Support Center

LOA Letter of Admonishment

LOAC Law of Armed Conflict

LOC Letter of Counseling

LOD Line of Duty

LOE Letter of Evaluation

LON Letter of Notification

LOR Letter of Reprimand

LoW Law of War

LPSP Limited Privilege Suicide Prevention

LRO Local Responsible Official

LSP Lengthy Service Probation

LSSS Logistic Support, Supplies, and Services

M

MACT Maximum Available Control Technology

MAJCOM Major Command

MCA Military Claims Act

MCIO Military Criminal Investigation 

Organization

MCM Manual for Courts-Martial

MCR Medical Cost Reimbursement

MCRP Medical Cost Reimbursement Program

MDA methylenedioxyamphetamine 

(“Sally”, “Sass”)

MDG Medical Group

MDMA 3,4-methylenedioxy-methamphetamine 

(“Molly”, “Ecstasy”, “E”)

MEB Medical Evaluation Board

MEDCON Medical Continuation

MEJA Military Extraterritorial Jurisdiction Act

MEO Military Equal Opportunity

MHP Mental Health Provider

MHPI Military Housing Privatization Initiative

MICT Management Internal Control Toolset

MILCON Military Construction

MilPDS Military Personnel Data System

MNF Multinational Force

MO Mortuary Officer

MOA Memorandum of Agreement

MON Memorandum of Notification

MOS Military One Source

MOU Memorandum of Understanding

MPDATP Military Personnel Drug Abuse 

Testing Program

MPerRGp Master Personnel Record Group

MPF Military Personnel Flight

MPO Military Protective Order

MPS Military Personnel Squadron

MR Mobility Restrictions

MRE Military Rules of Evidence

MRO Medical Review Officer

MSME Medical Standards Management Element

MSPB Merit Systems Protection Board

MSRRA Military Spouses Residency Relief Act

MT Military Technicians

MTF Medical Treatment Facility

MWR Morale, Welfare, and Recreation

N

NAAQS National Ambient Air Quality Standard

NAF Numbered Air Force

NAF Nonappropriated Funds

NAFI Nonappropriated Fund Instrumentality

NAS National Airspace System

NATO North Atlantic Treaty Organization

NCO Non-Commissioned Officer

NDA National Defense Area

NDAA National Defense Authorizations Acts

NEPA National Environmental Policy Act

NFE Non-Federal Entities

NGB National Guard Bureau

NGCA National Guard Claims Act

NILOD Not in the Line of Duty
926 The Military Commander and the Law

NJOIC National Joint Operations and 

Intelligence Center

NJP Nonjudicial Punishment

NOD Notice of Deficiency

NON Notice of Non-compliance

NOPP Notice of Privacy Practice

NOTAM Notice to Airmen

NOV Notice of Violation

NPDES National Pollutant Discharge 

Elimination System

NPL National Priorities List

NPRM Notice of Proposed Rulemaking

NPS National Park Service

NPSP New Parent Support Program

NQP Not Qualified for Promotion

NRHP National Register of Historic Places

NSE National Security Exemption

NSPS New Source Performance Standards

NSR New Source Review

O

O&M Operation and Maintenance

OAC Office of Airmen’s Counsel

OCIs Organizational Conflicts of Interest

OCO Offensive Cyberspace Operations

OCONUS Outside the Continental United States

OEBGD Overseas Environmental Baseline 

Guidance Document

OES Officer Evaluation System

OEIS Overseas Environmental Impact Statement 

OFO Office of Federal Operations

OGD Officer Grade Determination

OHDACA Overseas Humanitarian, Disaster, and 

Civic Aid

OI Operating Instructions

OJT On the Job Training

OMB Office of Management and Budget

OPCON Operational Control

OPM Office of Personnel Management

OPMC Outreach Management Prevention Council

OPR Office of Primary Responsibility

OPR Officer Performance Report

OPSEC Operations Security

ORF Official Representation Funds

OSC Office of Special Counsel

OSH Occupational Safety and Health

OSHA Occupational Safety and Health 

Administration

OSI Office of Special Investigations

OSR Officer Selection Record

OT Overtime

P

P claims Other Tangible Property Claims

P&R Probation and Rehabilitation

PA Privacy Act

PA Public Affairs

PAO Public Affairs Officer

PAS Privacy Act Statement

PC Protected Communication

PCA Personnel Claims Act

PCA Permanent Change of Assignment

PCBs Polychlorinated Biphenyls

PCI Personal Conflict of Interest

PCP Personal Care Provider

PCRO Pretrial Confinement Reviewing Officer

PCS Permanent Change of Station

PD Position Description

PDBR Dod Physical Disability Board of Review

PDI Potentially Disqualifying Information

PEB Physical Evaluation Board

PEBLO Physical Evaluation Board Liaison Officer

PfP Partnership for Peace

PHI Protected Health Information/Personal 

Health Information

PHO Preliminary Hearing Officer

PIF Personnel Information File

PII Personally Identifiable Information

PIP Performance Improvement Period

PIRR Participating Individual Ready Reservist

PM Program Manager

PO Private Organization

POA Power of Attorney

POC Point of Contact
Acronyms 927

POTUS President of the United States

POV Privately Owned Vehicle

PPA Power Purchase Agreement

PPBE Planning, Programming, Budgeting 

and Execution

PPM Personally Procured Moves

PRF Promotion Recommendation Form

PRP Personnel Reliability Program

PSAB Personnel Security Appeal Board

PSRB Physical Security Review Board

PT Physical Training

PT claims Household Goods Claims

PTA Pretrial Agreement

PTE Potential to Emit

PTL Physical Training Leader

PTSD Post Traumatic Stress Disorder

PWS Public Water Systems

Q

QRE Qualifying Representational Events

R

RAB Restoration Advisory Board

RCPHA Reserve Component Physical Health 

Assessment

RCRA Resource Conservation and Recovery Act

RDT&E Research, Development, Test and 

Evaluation

RF Radio Frequency

RIC Record of Individual Counseling

RIF Reduction-In-Force

RIO Readiness Integration Organization

RMC Rules for Courts-Martial

RMG Readiness Management Group

RMO Responsible Management Official

ROD Record of Decision

ROE Rules of Engagement

ROI Report of Investigation

ROS Report of Survey

ROT Record of Trial

ROTC Reserve Officer Training Corps

RRF Retention Recommendation Form

RUF Rules for the Use of Force

RVT Remote Video Terminal

S

SAC School Age Care

SAD State Active Duty

SAFPC Secretary of the Air Force Personnel 

Council

SAFRB Secretary of the Air Force Remissions 

Board

SAIRO Sexual Assault Incident Response 

Oversight

SAMMC San Antonio Military Medical Center

SAPR Sexual Assault Prevention and Response

SAPR VA Sexual Assault Prevention and Response 

Victim Advocate

SARC Sexual Assault Response Coordinator

SAUSA Special Assistant United States Attorneys

SBP Survivor Benefit Plan

SCA Show Cause Authority

SCI Sensitive Compartmented Information

SCMCA Special Court-Martial Convening Authority

SCO Summary Court Officer

SCOD Static Close Out Date

SCRA Servicemembers Civil Relief Act

SDO Air Force Debarring and Suspending 

Official

SDWA Safe Drinking Water Act

SecAF Secretary of the Air Force

SecDef Secretary of Defense

SES Senior Executive Service

SF Security Forces

SFOI Security Forces Office of Investigations

SFS Security Forces Squadron

SHPO State Historic Preservation Officer

SIB Safety Investigation Board

SIGINT Signals Intelligence

SIP State Implementation Plan

SJA Staff Judge Advocate

SME Subject Matter Expert

SMS Short Message Service

SOFA Status of Forces Agreement
928 The Military Commander and the Law

SOMA Status of Mission Agreement

SOTA SIGINT Operational Tasking Authority

SpCM Special Court-Martial

SPCMCA Special Court-Martial Convening Authority

SPINS Special Instructions

SPO Senior Profiling Officer

SROE Standing Rules of Engagement

SRP Selective Reenlistment Program

SRUF Standing Rules for the Use of Force

sUAS Small Unmanned Aircraft Systems

SVC Special Victims’ Counsel

SVIP Special Victim’s Investigation and 

Prosecution

SWDA Solid Waste Disposal Act

SWMP Solid Waste Management Plan

T

T4C Termination for Convenience

T4D Termination for Default

TACON Tactical Control

TAFMS Total Active Federal Military Service

TBI Traumatic Brain Injury

TCN Third Country Nationals

TDP Testing Designated Position

TDRL Temporary Disability Retirement List

TDY Temporary Duty Assignment

TFR Temporary Flight Restriction

TFSC Total Force Service Center

TIG Time in Grade

TIS Time in Service

TJAG The Judge Advocate General

TMA Traditional Military Activity

TPS Third Party Site

TR Traditional Reservist

TSCA Toxic Substances Control Act

TT Treatment Team

U

UA Unmanned Aircraft

UAS Unmanned Aircraft Systems

UCA Unit Career Advisor

UCC Unified Combatant Command 

UCCJEA Uniform Child Custody Jurisdiction and 

Enforcement Act

UCI Unlawful Command Influence

UCMJ Uniform Code of Military Justice

UEI Unit Effectiveness Inspection

UESC Utility Energy Service Contract

UFPM Unit Fitness Program Manager

UGPCA Use of Government Property Claims Act

UIF Unfavorable Information File

ULFSC Utility Law Field Support Center

ULP Unfair Labor Practice

UMMC Unspecified Minor Military Construction

UOTHC Under Other than Honorable Conditions

UPA Unfavorable Personnel Action

USAF United States Air Force

USCIS U.S. Citizenship and Immigration Services

USERRA Uniformed Services Employment and 

Reemployment Rights Act

USFSPA Uniformed Services Former Spouses’ 

Protection Act

USP United States Persons

USPI United States Person Information

UST Underground Storage Tank

UTA Unit Training Assembly

V

VA Veteran Affairs

VA Victim Advocate

VCSAF Vice Chief of Staff of the Air Force

VITA Volunteer Income Tax Assistance Program

VVA Volunteer Victim Advocates

VWAP Victim and Witness Assistance Program

W

WG Wage Grade

WPA Whistleblower Protection Act

Y

YP Youth Programs
On the back: Two F-22 Raptors from the 3rd Wing at Joint Base Elmendorf-Richardson, Alaska 

(U.S. Air Force photo/Justin Connaher) over iStockphotoTM background image by chainatp.

CONSILIUM VIRTUS

JUSTITIA

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WISDOM VALOR JUSTICE

WISDOM VALOR JUSTICE
THE JUDGE ADVOCATE GENERAL’S SCHOOL

UNITED STATES AIR FORCE

Professional Outreach Division

The Judge Advocate General’s School

150 Chennault Circle

Maxwell AFB, AL 36112-6418