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 handy 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 contact the Editors, 

The Military Commander and the Law, at the following address:

The Judge Advocate General’s School

150 Chennault Circle

Maxwell Air Force Base, Alabama 36112-6418

(334) 953-2802 or DSN 493-2802

Commanders, First Sergeants and other supervisors may review this publication at this 

website: http://milcom.jag.af.mil.

Individuals with accounts and passwords assigned by AFLOA/JAS may review and

research this publication through the JAG School's homepage at 

https://aflsa.jag.af.mil/AF/JAGSCHOOL/index.htm, or through the Federal Legal 

Information Through Electronics (FLITE) service at https://aflsa.jag.af.mil/.


THE MILITARY COMMANDER

AND

THE LAW 

__________________________________________________________________ 

Eighth Edition 2006

__________________________________________________________________ 

Colonel David C. Wesley, USAF 

Commandant, The Judge Advocate General’s School 

Major Rebecca R. Vernon, USAF 

Major John A. Carr, USAF 

Editors 

EDITORIAL BOARD 

Lieutenant Colonel (s) Mark A. Milam, USAF 

Lieutenant Colonel (s) Bradley W. Mitchell, USAF 

Lieutenant Colonel (s) Robert J. Preston, USAF 

Major Catherine M. Fahling, USAF 

Major Michael W. Goldman, USAF 

Major Charles E. Wiedie, USAF 

Major Warren L. Wells, USA 

Major Daniel A. Olson, USAF 

Major Edward D. Gray, USAF 

Major James S. Flanders, USAF 

Major Lyndell M. Powell, USAF 

Major (s) Corea K. Bergenser, USAF 

Major (s) Melanie S. Keiper, USAF 

and 

Mr. W. Darrell Phillips 

i 

The Military Commander and the Law 

Table of Contents 

CHAPTER ONE: LEGAL ISSUES SPECIFIC TO THE COMMANDER ................1

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

Command Succession....................................................................................................4 

Functions of the Staff Judge Advocate..........................................................................7 

Personal Liability of Commanders and Supervisors .....................................................9 

Article 138 Complaints................................................................................................12 

Special Court-Martial Convening Authority Duties....................................................15 

Unlawful Command Influence ....................................................................................17 

Serving as a Court Member .........................................................................................19 

Testifying as a Witness................................................................................................22 

CHAPTER TWO: QUALITY FORCE MANAGEMENT..........................................25 

Administrative Counselings, Admonitions, and Reprimands......................................26 

Unfavorable Information Files ....................................................................................33 

Control Rosters ............................................................................................................36 

Administrative Demotions...........................................................................................38 

Selective Reenlistment.................................................................................................41 

Officer and Enlisted Performance Reports..................................................................43 

Officer Promotion Propriety Actions...........................................................................46 

Enlisted Promotion Propriety Actions.........................................................................49 

CHAPTER THREE: NONJUDICIAL PUNISHMENT UNDER ARTICLE 15.......53 

Nonjudicial Punishment Overview and Procedures ....................................................54 

Supplementary Nonjudicial Punishment Actions........................................................60 

Vacating Suspended Nonjudicial Punishment.............................................................63 

The Remotivation Program..........................................................................................65 

Quality Force Management Effects of Nonjudicial Punishment.................................67 

CHAPTER FOUR: ADMINISTRATIVE SEPARATION FROM THE AIR 

FORCE .............................................................................................................................71 

Involuntary Separation of Enlisted Members: General Considerations ......................72 

Involuntary Separation of Enlisted Members: Procedures ..........................................75 

Involuntary Separation of Enlisted Members: Reasons For Discharge.......................80 

Involuntary Separation of Enlisted Members: Probation and Rehabilitation..............88 

Voluntary Separation of Enlisted Members Prior to Expiration of Term of Service ..92 

Officer Separations ......................................................................................................94 

Administrative Separation of Reservists ...................................................................100 

Loss of Veterans’ Benefits.........................................................................................102 
ii 

CHAPTER FIVE: CRIMINAL AND MILITARY JUSTICE ..................................105 

General 

Installation Jurisdiction........................................................................................106 

Federal Magistrate Program ................................................................................109 

Court-Martial Jurisdiction Under the UCMJ.......................................................111 

A Commander’s Guide to the AFOSI .................................................................115 

Functions of the Area Defense Counsel ..............................................................123 

Military Magistrate Program ...............................................................................124 

National Security Cases.......................................................................................125 

Sexual Assault Response and Prevention............................................................127 

Air Force Victim and Witness Assistance Program ............................................135 

Transitional Compensation for Victims of Abuse ...............................................137 

Media Relations in Military Justice Matters........................................................139 

Criminal Investigations 

Arrest By Civil Authorities..................................................................................144 

Advising Suspects of Rights................................................................................147 

Inspections and Searches .....................................................................................151 

Preliminary Inquiry into Reported Offenses........................................................159 

Military Justice Actions and the Inspector General.............................................160 

Court-Martial Procedures 

Preparation, Preferral, and Processing of Charges ..............................................162 

Pretrial Confinement............................................................................................165 

Pretrial Restraint ..................................................................................................169 

Immunity..............................................................................................................171 

Pretrial Agreements .............................................................................................173 

Trial Format.........................................................................................................176 

Confidentiality and Privileged Communication ..................................................178 

Use of Information in the PIF & Rehabilitation Testimony at Trial ...................182 

Post-Trial Matters, Convening Authority Action, and Appeals ..........................183 

CHAPTER SIX: PERSONNEL ISSUES FOR THE COMMANDER - 

GENERALLY................................................................................................................185 

Total Force: Reserve and National Guard Forces......................................................186 

Return of Military Personnel, Employees, and Family Members from Overseas for 

Trial............................................................................................................................189 

Drug Abuse................................................................................................................192 

Alcohol Abuse ...........................................................................................................199 

Freedom of Information Act......................................................................................207 

Privacy Act ................................................................................................................211 

Army and Air Force Exchange Service and Commissary Benefits...........................215 

Driving Privileges......................................................................................................218 

Debarment..................................................................................................................221 

Free Speech, Demonstrations, and Open Houses ......................................................223 

Private Organizations.................................................................................................226 
iii 

CHAPTER SEVEN: PERSONNEL ISSUES FOR THE COMMANDER – 

MILITARY MEMBERS...............................................................................................229 

Humanitarian Reassignments/Deferments.................................................................230 

The Air Force Urinalysis Program ............................................................................232 

Professional Relationships 

Fraternization and Unprofessional Relationships................................................239 

Hazing..................................................................................................................241 

Finances 

Personal Bankruptcy............................................................................................243 

Financial Responsibility ......................................................................................244 

Bad Checks ..........................................................................................................247 

Family 

Child Abuse, Child Neglect, and Spousal Abuse ................................................248 

Adoption Reimbursement....................................................................................251 

Paternity Claims...................................................................................................253 

Civilian Jury Service by Military Members ..............................................................254 

Medical and Mental Health Issues 

Acquired Immune Deficiency Syndrome (AIDS) ...............................................256 

Anthrax Immunizations .......................................................................................260 

Limited Privilege Suicide Prevention Program ...................................................263 

Commander Directed Mental Health Evaluations...............................................266 

Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule ....271 

Duty Status/Fitness for Duty 

Personnel Reliability Program.............................................................................275 

Lautenberg Amendment ......................................................................................279 

Conscientious Objection to Military Service.......................................................282 

Homosexual Conduct...........................................................................................285 

Fitness Program ...................................................................................................293 

Unauthorized Absence.........................................................................................299 

Line of Duty Determinations...............................................................................302 

Officer Grade Determinations .............................................................................305 

Tattoos/Brands, Body Piercing, and Body Alteration ...............................................307 

CHAPTER EIGHT: PERSONNEL ISSUES FOR THE COMMANDER – 

FAMILY AND NEXT OF KIN ....................................................................................311 

Family Member Misconduct......................................................................................312 

Removal from Base Housing.....................................................................................314 

Spouses' Clubs ...........................................................................................................315 

Family Day Care Homes ...........................................................................................317 
iv 

Child Development Programs....................................................................................321 

Summary Court Officers............................................................................................323 

Disposal of Personal Property ...................................................................................325 

CHAPTER NINE: THE AIR FORCE LEGAL ASSISTANCE PROGRAM .........327 

Overview of Legal Assistance Program ....................................................................328 

Notaries......................................................................................................................332 

Preventive Law Program ...........................................................................................335 

Wills and Powers of Attorney....................................................................................337 

CHAPTER TEN: CIVIL LAW RIGHTS AND PROTECTIONS OF MILITARY 

PERSONNEL.................................................................................................................341 

Equal Opportunity and Treatment .............................................................................342 

The Inspector General Complaints Resolution Process.............................................349 

Prohibition on Sexual Harassment.............................................................................355 

Political Activities by Air Force Members................................................................364 

Membership and Participation In Hate Groups .........................................................368 

Servicemembers Civil Relief Act ..............................................................................369 

Uniformed Services Employment and Reemployment Rights Act ...........................371 

Uniformed Services Former Spouses' Protection Act ...............................................375 

Right to Financial Privacy Act ..................................................................................379 

CHAPTER ELEVEN: CIVIL LAW ISSUES FOR THE COMMANDER .............381 

Emergency Response 

Media Relations During Aircraft Accidents........................................................382 

National Defense Areas .......................................................................................385 

Posse Comitatus...................................................................................................389 

Boards and Investigations 

Air Force Safety and Accident Investigations.....................................................392 

Administrative Inquiries and Investigations........................................................398 

Allegations Against Senior Officials and Colonels (Or Equivalents) ................402 

Flying Evaluation Boards ....................................................................................404 

Base Commercial Issues 

Commercial Activities.........................................................................................407 

MWR and Nonappropriated Fund Instrumentalities ...........................................411 

Off-Limits Establishments...................................................................................412 

Unofficial Activities / Squadron Snack Bars.......................................................414 

Acceptance of Volunteer Services.......................................................................415 

CHAPTER TWELVE: THE AIR FORCE CLAIMS PROGRAM..........................417 

Introduction to Claims ...............................................................................................418 

Claims Against the Government 

Personal Property Claims ....................................................................................419 

Tort Claims ..........................................................................................................423 
v 

Claims by the Government 

Aviation Claims...................................................................................................427 

Carrier Recovery Claims .....................................................................................431 

Reports of Survey ................................................................................................433 

Property Damage Tort Claims in Favor of the United States..............................440 

Hospital Recovery Claims ...................................................................................443 

Other Liability Issues 

Article 139 Claims...............................................................................................445 

Liability For Damage to Rental Vehicles ............................................................448 

CHAPTER THIRTEEN: CONTRACTING ISSUES FOR THE COMMANDER 455 

Procurement Integrity ................................................................................................456 

Minor Military Construction Funding .......................................................................459 

Unauthorized Procurement ........................................................................................462 

Outsourcing and Privatization ...................................................................................464 

Bankruptcy: Government Contractors......................................................................467 

Contractor Personnel Authorized to Accompany the U.S. Armed Forces ................469 

CHAPTER FOURTEEN: ETHICS ISSUES ..............................................................477 

Standards of Ethical Conduct ....................................................................................478 

Financial Disclosure Forms .......................................................................................480 

Gifts to Superiors.......................................................................................................483 

Foreign Gifts..............................................................................................................484 

Use of Government Resources for Mementos and Gifts ...........................................486 

Participation in Frequent Flyer Programs..................................................................488 

Use of Government Communications Systems .........................................................490 

Honoraria ...................................................................................................................494

Honorary Memberships .............................................................................................495 

Off-Duty Employment...............................................................................................496 

CHAPTER FIFTEEN: CIVILIAN PERSONNEL AND FEDERAL LABOR LAW497 

Overview of the Civilian Personnel System..............................................................498 

Union Relations 

Overview of Federal Labor-Management Relations ...........................................502 

Collective Bargaining ..........................................................................................508 

Employee Discipline 

Air Force Civilian Drug Testing Program...........................................................512 

Civilian Employee Workplace Searches .............................................................517 

Unacceptable Performance By Civilian Employees............................................519 

Civilian Employee Discipline..............................................................................526 

Civilian Employee Interrogation .........................................................................531 
vi 

Employee Protections and Benefits 

Equal Employment Opportunity (EEO) Complaint Process ...............................534 

Whistleblower Protection Act..............................................................................540 

Family & Medical Leave Act ..............................................................................543 

Unemployment Compensation ............................................................................546 

Base Closure Civilian Personnel Issues...............................................................549 

CHAPTER SIXTEEN: ENVIRONMENTAL LAW..................................................553

Environmental Laws: Overview................................................................................554 

Environmental Torts ..................................................................................................556 

Environmental Fees ...................................................................................................557 

Procedures 

Controls on Air Force Decision-Making: NEPA.................................................558 

Environmental Compliance Assessment and Management Program..................561 

Responding to an Enforcement Action................................................................564 

Liability Under Environmental Laws ..................................................................567 

Media Relations and Environmental Incidents....................................................570 

Laws and Regulations 

Cleanup of Contamination from Past Activities..................................................572 

Natural & Cultural Resource Preservation Laws.................................................577 

Noise and Land Use.............................................................................................583 

Clean Air Act.......................................................................................................585 

Clean Water Act/Safe Drinking Water Act .........................................................589 

Water Rights ........................................................................................................593 

Solid and Hazardous Wastes ...............................................................................595 

Control of Toxic Substances................................................................................599 

Environmental Law Overseas..............................................................................602 

CHAPTER SEVENTEEN: INTERNATIONAL AND OPERATIONS LAW ........605 

Introduction to International & Operations Law .......................................................606 

The Law of Armed Conflict ......................................................................................612 

Operations Law..........................................................................................................618 

Information Operations..............................................................................................619 

Rules of Engagement.................................................................................................622 

Fiscal Law During Deployments...............................................................................626 

Foreign Criminal Jurisdiction....................................................................................631

INDEX ............................................................................................................................635
Legal Issues Specific to the Commander - 1 

CHAPTER ONE: 

LEGALISSUES SPECIFIC TO THE

COMMANDER 

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

Command Succession....................................................................................................4 

Functions of the Staff Judge Advocate..........................................................................7 

Personal Liability of Commanders and Supervisors .....................................................9 

Article 138 Complaints................................................................................................12 

Special Court-Martial Convening Authority Duties....................................................15 

Unlawful Command Influence ....................................................................................17 

Serving as a Court Member.........................................................................................19 

Testifying as a Witness................................................................................................22 
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 

CHAIN OF COMMAND 

− Chain of command runs from the President and the Secretary of Defense to the 

Combatant Commander 

-- Chairman of the Joint Chiefs functions within the chain of command by 

transmitting communications to the commander of the combatant commands 

from the President and the Secretary of Defense 

-- Service Chiefs are responsible to the secretary of the military department for 

management of the Services 

-- Subordinate command authority may be conferred by statute, delegated, or 

assumed 

THE CONCEPT OF COMMAND BY UNIFORMED MILITARY PERSONNEL

− Concept of command carries dual function 

-- Legal authority over people, including power to discipline 

-- Legal responsibility for the mission and resources 

− Command devolves upon an individual, not a staff 

-- Command is exercised by virtue of the office and the special assignment of 

officers holding military grades who are eligible by law to command. A 

commander exercises control through subordinate commanders. Staff, 

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

assist the commander through planning, investigating, and recommending. 

-- Some command duties may be delegated. Responsibilities of command may 

never be delegated. 
Legal Issues Specific to the Commander - 3 

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 or her status as a superior commissioned officer. 

− Enlisted members take an oath upon enlistment to obey the lawful orders of those 

appointed over the member 

− Articles 89, 90, and 92 of the UCMJ include prohibitions of 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 

COMMAND AUTHORITY OVER CIVILIANS 

− The commander has authority over, and acts as the employer of, civilian employees 

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

-- The 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 almost no authority over civilians off base 

REFERENCE: 

U.S. CONST. art. II, § 2 

UCMJ arts 89, 90, 92 

AFI 51-604, Appointment to and Assumption of Command (4 April 2006) 
4 – The Military Commander and the Law 

COMMAND SUCCESSION

An officer succeeds to 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. 

− Assumption of command is a unilateral act taken under authority of law and 

regulation by the officer who assumes command 

-- 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) 

-- 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). Assignment to a subordinate organization is an 

assignment to all superior organizations having the subordinate organization as 

a component. 

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

Air Force, or by his or her delegee 

-- An officer 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 

− 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 

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

officer who originally held the command position 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 
Legal Issues Specific to the Commander - 5 

-- 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 ITEMS

− There is no title or position of "acting commander." The term is not authorized. 

− Officers assigned to HQ USAF cannot assume command of personnel, unless 

competent authority specifically directs 

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

and otherwise eligible to command 

− Enlisted members cannot exercise command 

− No commander may appoint his own successor 

− 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 POWs, or 

under emergency field conditions 

− Flying organizations may only be commanded by Line of the Air Force 

crewmembers occupying active flying positions -- except that 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. 

− 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 

− 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 delegee 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 
6 – The Military Commander and the Law 

authority no lower than the commanders of Aerospace Expeditionary Wings for 

expeditionary units operating under the COMAFFOR’s authority. 

− Regular officers and Reserve officers on extended active duty cannot command 

organizations of the Air Force Reserve unless approved by HQ USAF/RE 

− Only officers designated as a medical, dental, veterinary, medical service, or 

biomedical sciences officer, or as a nurse may command organizations and 

installations whose primary mission involves health care or the health profession 

− Officers quartered on installation, but assigned to another organization not charged 

with operating that installation, cannot assume command of installation by virtue of 

seniority 

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 (Request and Authorization 

for Assumption of/Appointment to Command) to document such orders. AFI 51-

604, Attachment 2, sets out detailed instructions for preparing the AF Form 35. 

Consult AFI 33-328 for uniformity of orders formats and general order publishing 

guidance. 

REFERENCES: 

AFI 33-328, Administrative Orders (1 February 1999) 

AFI 51-604, Appointment to and Assumption of Command (1 October 2000) 
Legal Issues Specific to the Commander - 7 

FUNCTIONS OF THE STAFF JUDGE ADVOCATE

MISSION

The Judge Advocate General's Corps provides essential legal support for military 

operations; advocates and litigates to preserve command prerogatives; administers civil 

and criminal law programs; educates and counsels leaders and personnel in the law; 

and recruits, trains, and equips quality legal professionals 

DEFINITIONS

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

General 

-- Graduate of an American Bar Association accredited law school 

-- Member in good standing of the legal bar of any state, and authorized to 

practice before a federal court or the highest court in a state 

− Staff Judge Advocate (SJA): Senior judge advocate on extended active duty 

normally on the installation commander's staff unless otherwise specified by The 

Judge Advocate General. 

-- Serves as the legal advisor for the Wing Commander in his or her capacity as 

the representative of the Air Force 

-- Supervises the members of the base legal office 

− Assistant Staff Judge Advocates (ASJA): Other judge advocates assigned to the 

staff judge advocate's office. ASJAs support the SJA in his or her role as the Wing 

Commander’s legal advisor. In this capacity, they may perform duties such as 

-- Claims Officer 

-- Chief of Military Justice 

-- Chief of Civil Law 

− Area Defense Counsel (ADC): Judge advocate performing defense counsel duties 

at an installation 

-- Reports through the defense community chain of supervision to TJAG 

-- Not assigned to the SJA 
8 – 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: Responsible for advising commanders on discipline and 

military justice matters. Includes advising commanders on, and preparing 

documents for, courts-martial and nonjudicial punishment (Article 15, UCMJ). 

− Claims Division: Responsible for processing household goods claims submitted 

by military members. Also handles the initial processing of tort claims against the 

Air Force and claims by the Air Force against individuals and entities. 

− International and Operations Law Division: Responsible for advising commanders 

on international and operational law issues such as foreign criminal jurisdiction, 

international agreements, rules of engagement and targeting as well providing Law 

of Armed Conflict training and guidance 

− Civil Law Division: A number of different legal topics fall under the category of 

civil law. These different areas may be included in a single, Civil Law division or 

they may be broken down into separate divisions. Areas within the Civil Law 

division may include: contract law; labor law; environmental law; and general civil 

law (dealing with issues such as private organizations, use of USAF assets, various 

personnel issues and noncriminal investigations such as Reports of Survey and Line 

of Duty determinations). 

− Legal Assistance and Preventative Law Division: Responsible for educating the 

base population on legal issues that affect military members and their dependents 

as well as providing legal assistance. Legal assistance attorneys cannot draft court 

documents or represent members or their families in court but they can 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. This division also provides free notary services. 

− 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. 

REFERENCE: 

AFI 51-102, The Judge Advocate General’s Department (19 July 1994) 
Legal Issues Specific to the Commander - 9 

PERSONAL LIABILITY OF COMMANDERS AND SUPERVISORS

INTRODUCTION

− Federal employees are generally entitled to Department of Justice representation if 

lawsuits are brought against them for acts they commit in the scope of their 

employment, if those acts do not violate federal statutes 

− Historically, suits against present or former federal officials in their personal 

capacity for money damages based upon official conduct were rare 

− Similarly, common law tort suits brought in state courts were dismissed because of 

the doctrine of official immunity 

LIABILITY FOR CONSTITUTIONAL TORTS

− In 1971, the Supreme Court of the United States held for the first time in Bivens v. 

Six Unknown Named Agents that an alleged violation of the United States 

Constitution could serve as the basis for a suit for money damages against federal 

officials 

− However, the Court said that a federal official would have absolute immunity if the 

official was acting in the scope of employment and if there were "special factors 

counseling hesitation" on the part of the court to allow a civil action for damages to 

proceed 

-- In 1983, the Court found, in Bush v. Lucas, that the administrative remedies 

given an aggrieved employee by the Civil Service Reform Act were "special 

factors" that protected federal supervisors from liability 

-- However, in Otto v. Heckler, a supervisor engaging in sexual harassment was 

found to be outside the scope of his employment and was not immune 

-- Also in 1983, in Chappell v. Wallace, the Court held that 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 

-- In 1987, in United States v. Stanley, the Court ruled that there need not be a 

superior/subordinate relationship for this immunity to apply, e.g., a civilian 

employee allegedly injuring an enlisted member 

− 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 
10 – The Military Commander and the Law 

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

would have been aware. 

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 

tort 

− The Act does not apply to constitutional torts (discussed above) or to acts violating 

a federal statute, e.g., environmental torts 

− The Department of Justice must certify that the employee was acting "in 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) either contain immunity provisions for federal 

employees acting in scope or have been held by courts to grant immunity. Meyer 

v. United States Coast Guard. 

− However, federal officials have been held criminally liable for violations of various 

environmental statutes that contain criminal penalties. United States v. Carr. 

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

Department of Justice will generally decline both criminal and civil representation 

REPRESENTATION OF FEDERAL EMPLOYEES

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

immediately contact the 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 is available to protect you against civil (not 

criminal) liability 
Legal Issues Specific to the Commander - 11 

REFERENCES: 

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

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

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

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

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

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
12 – The Military Commander and the Law 

ARTICLE 138 COMPLAINTS

Article 138 of the Uniform Code of Military Justice (UCMJ) gives every member of 

the Armed Forces the right to complain that he or she was “wronged” by his or her 

commanding officer. The right even extends to those subject to the UCMJ on inactive 

duty for training. 

− Matters appropriate to address under Article 138 include discretionary acts or 

omissions by a commander that adversely affects the member personally and are 

-- In violation of law or regulation 

-- Beyond the legitimate authority of that commander 

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

-- Clearly unfair, e.g., selective application of administrative standards/actions 

− Matters outside the scope of the Article 138 complaint process 

-- Acts or omissions affecting the member which were not initiated or ratified by 

the commander 

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

Article 15. However, deferral of post-trial confinement is within scope of 

Article 138. 

-- Actions initiated against the member where the governing directive requires 

final action by SecAF 

-- Complaints against the GCMCA related to the resolution of an Article 138 

complaint, except for alleging the GCMCA failed to forward a copy of the file 

to the SecAF 

-- Complaints seeking disciplinary action against another 

-- Complaints based on a commander's actions implementing the 

recommendations of a board authorized by Air Force regulations and governed 

by AFI 51-602, Boards of Officers 

− Procedures for filing complaint 
Legal Issues Specific to the Commander - 13 

-- Within 180 days of the alleged wrong, the member submits his or her complaint 

in writing, along with supporting evidence, to the commander alleged to have 

committed the wrong 

-- The commander receiving the complaint must promptly notify the complainant 

in writing whether the demand for redress is granted or denied 

--- The reply must state the basis for denying the requested relief 

--- The commander may consider additional evidence and must attach a copy 

of the additional evidence to the file 

-- If the commander refuses to grant the requested relief, the member may submit 

the complaint, along with the commander’s response, to the officer exercising 

General Court-Martial Convening Authority (GCMCA) over the commander 

--- Must be submitted within 90 days from the notice of denial 

--- May be submitted directly to the GCMCA or forwarded through any 

superior commissioned officer 

--- An intermediate commander or any other superior commissioned officer 

receiving such a complaint will immediately forward the file to the 

GCMCA. The officer may attach additional pertinent documentary 

evidence and comment on availability of witnesses or evidence, but may not 

comment on the merits of the complaint. 

− GCMCA’s Responsibilities 

-- Conduct or direct further investigation of the matter, as appropriate 

-- Notify the complainant, in writing, of the action taken on the complaint and the 

reasons for such action 

-- Refer the complainant to appropriate channels that exist specifically to address 

the alleged wrongs, i.e., performance reports, suspension from flying status, 

assessment of pecuniary liability. This referral constitutes final action. 

-- Retain two complete copies of the file, and return the originals to the 

complainant 

-- After taking final action, forward a copy of the complete file to HQ USAF/JAA 

for review and disposition by the SecAF 

− The GCMCA is prohibited from delegating his or her responsibilities to act on 

complaints submitted pursuant to Article 138 
14 – The Military Commander and the Law 

REFERENCES: 

UCMJ art. 138 

AFI 51-904, Complaint of Wrongs Under Article 138, UCMJ (30 June 1994) 
Legal Issues Specific to the Commander - 15 

SPECIAL COURT-MARTIAL CONVENING AUTHORITY DUTIES

The Special Court-Martial Convening Authority (SPCMCA) is a statutory position 

under the Uniform Code of Military Justice that involves several duties and 

responsibilities. In the Air Force, the SPCMCA is typically the wing commander. 

− SPCMCA duties in this regard can be divided into two categories: military justice 

and administrative action 

− Military Justice Duties

-- Appoints military magistrates to authorize apprehensions, searches, and 

seizures 

-- Appoints pretrial confinement reviewing officers (PCRO) 

--- PCRO holds a hearing and makes a neutral determination of whether an 

accused should be continued in pretrial confinement awaiting trial 

--- There is no limit to the number of PCROs the SPCMCA can appoint 

--- PCROs should be mature officers with good judgment 

-- Details court members 

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

-- Approves pretrial agreements (PTAs) for an accused to be tried by a special or 

summary courts-martial 

-- Takes action on findings and sentences of special and summary courts-martial 

-- Appoints Article 32, UCMJ, Investigating Officer (IO) 

--- Occurs after charges have been preferred and when the SPCMCA believes a 

general court-martial may be the appropriate forum for the charge and 

specification 

--- The IO completes an Article 32 hearing, which is roughly similar to a grand 

jury proceeding in the civilian community, and writes a report for the 

SPCMCA, which recommends action the SPCMCA should take on the 

charge and specification 
16 – The Military Commander and the Law 

-- If the SPCMCA believes a GCM is appropriate, then forwards Article 32 

reports, charge and specification, and recommendations on disposition to the 

GCMCA, 

− Administrative Action Duties

-- Disapproves or recommends approval of requests for discharge in lieu of courtmartial 

--- SPCMCA may disapprove a request for discharge in a special court-martial 

--- SPCMCA may not approve a request for discharge, even in a special courtmartial 

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

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

recommendation for approval and appropriate characterization of discharge 

--- 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 

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

the request for discharge to the GCMCA, with recommendations for action 

on request 

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

act on the findings and recommendations of the board 

-- Acts as separation authority depending upon the status of the respondent, the 

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

REFERENCES: 

MANUAL FOR COURTS-MARTIAL, UNITED STATES (2005)

AFI 36-3208, Administrative Separation of Airmen (9 July 2004) 

AFI 51-201, Administration of Military Justice, Chapter 3 (26 November 2003) 
Legal Issues Specific to the Commander - 17 

UNLAWFUL COMMAND INFLUENCE

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

the mortal enemy of military justice. 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. 

− Commanders at each level are given authority by virtue of their commands to 

impose discipline upon subordinates within their command. For example, a 

squadron commander may discipline anyone assigned to his or her squadron. Since 

that squadron would normally fall under a group and then a wing, those squadron 

members would likewise be subject to discipline from their group and/or wing 

commanders. Each commander in the chain must remain free to exercise his or her 

own discretion to impose discipline without inappropriate interference from a 

superior commander. 

-- 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. 

--- 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 

-- The superior commander can remove or withhold the authority from the 

subordinate commander to act in a particular case or type of cases and impose 

punishment himself 

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

particular result in a given case or type of cases. Examples of unlawful command 

influence include 

-- 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. 

-- 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. 
18 – The Military Commander and the Law 

-- A commander expresses his "concern" about court-martial cases in which 

subordinate commanders preferred charges, recommended a court, then testified 

during sentencing on behalf of the accused. The suggestion was they refrain 

from testifying for the accused in upcoming courts. Any attempt to discourage 

a witness from testifying is improper. 

-- 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. 

-- A convening authority may not exclude classes of individuals from serving as 

court members if done to obtain a more severe sentence 

-- Interfering with a party’s access to witnesses 

-- Intent to actually interfere with a case is not required. Command actions that 

unintentionally discouraging witnesses to testify or causing witnesses to alter 

their testimony may constitute UCI. 

− 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. Having done so, 

however, the superior commander must then step back and allow the subordinates 

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

involvement 

-- Withholding a subordinate’s authority to act in an individual case or types of 

cases 

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

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

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 are not indicative of an inelastic attitude or an 

attempt to influence the finding and sentence in a particular case 

-- Focusing on problem areas is permissible. For example, characterizing illegal 

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

drug dealers as a legitimate command concern. 

REFERENCES: 

MANUAL FOR COURTS-MARTIAL, UNITED STATES (2005) 

AFI 51-201, Administration of Military Justice (26 November 2003) 
Legal Issues Specific to the Commander - 19 

SERVING AS A COURT MEMBER

At some time in your military career you will probably be detailed to sit as a member 

of a court-martial. Court members serve essentially the same function in a military 

court-martial as jurors serve in civilian trials. The following are some important facts: 

− When convening a court-martial, the convening authority personally selects 

members who are, in his or her opinion, best qualified for this duty. Article 

25(d)(2) of the Uniform Code of Military Justice (UCMJ) outlines what factors 

should be considered when determining who is “best qualified.” These 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 written questionnaire, providing information such as date of birth; sex; 

race; marital status and sex, age, and number of dependents; home of record; 

civilian and military education; current unit of assignment; past duty assignments; 

awards and decorations; date of rank; and any disqualifying information. This 

questionnaire provides counsel for both sides information about a member's 

background that 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 that member’s presence. Court members are 

required to be impartial. Having prior knowledge of the facts of a case may impact 

a member’s ability to remain impartial. 

− If a detailed court member needs to be excused, keep the following in mind 

-- Although the convening authority may excuse members prior to assembly for 

any reason, 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 or her staff judge advocate. Members detailed to a courtmartial should not depart the local area on leave or TDY without coordination 

with the staff judge advocate, unless they have been properly relieved from 

duty. 

-- After the court-martial is assembled, the convening authority can no longer 

excuse members unless the member has good cause. After assembly, court 

members are normally only excused as a result of being challenged by trial or 

defense counsel, or after being released by the military judge for good cause. 

-- Trial and defense counsel, as well as the military judge, are entitled to ask court 

members questions at trial to ensure that the accused is brought to trial before 
20 – The Military Commander and the Law 

an impartial court panel. 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. There 

is no limit to the number of court members who can be removed for cause. 

Each side is also permitted one challenge without cause. This is called a 

peremptory challenge. Its only limitation is that it may not be used to 

improperly remove a member on the basis of that member’s race, gender, or 

other constitutionally protected status. 

− 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 beyond a reasonable doubt. A finding of 

“not guilty” can be made even if the members do not believe the accused to be 

“innocent.” In other words, if the members believe that the accused probably 

committed the offense, but are not convinced beyond a reasonable doubt, they must 

still vote “not 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. 

− If the accused is found “guilty,” the court members will hear evidence in 

aggravation, extenuation and/or mitigation, listen to arguments from counsel 

recommending a sentence, and receive instructions from the military judge on 

sentencing procedures. They 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 elects to be sentenced by members, the same 

sentencing procedures apply as when the accused is found “guilty” by members 

− Throughout the course of the trial, the military judge may choose to hold sessions 

on the record outside the presence of the court members. These are called Article 

39(a) sessions because they are authorized under Article 39(a), UCMJ. During 

these sessions, the military judge and counsel often discuss matters that would be 

inappropriate for the court members to hear, such as the admissibility of evidence. 

Other times, administrative matters may be discussed that do not require the 

presence of the court members. During these out-of-court sessions, court members 

may not discuss the case among themselves or with anyone else. 

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

have completed their examinations. A court member proposes a question by 

writing it down on the question forms provided. Both counsel will review the 
Legal Issues Specific to the Commander - 21 

question and can object to the question posed by a court member. The military 

judge will rule on the objection. In asking questions, court members must 

remember not to become advocates for either side, but must remain impartial. 

− Court members are allowed to take notes during the trial. A court member may 

refer to his or her notes during deliberation, but the notes are not evidence, cannot 

be used by any court member as evidence, and may not be shown or read to other 

members. Ultimately, if the members cannot agree on whether particular evidence 

was presented, or what the exact nature of the evidence was, the members may ask 

the military judge to reopen the court and present the evidence again. 

− 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, while important, is not a rating factor to be 

considered on any member’s performance report. 

− No one may enter the deliberation room while the members are deliberating. All 

members must be present during any deliberation. Therefore, if the members have 

a question or otherwise need to communicate with the military judge, or if they 

want a break, one of the members should contact the bailiff. The bailiff will notify 

the military judge that the members have a question, want a break, etc. Members 

may not discuss the case with anyone during the recess, even among themselves. 

The military judge notifies the counsel and accused and reopens the court. The 

members are brought into the courtroom and are allowed to ask their question, or 

the military judge will formally recess the court so that the members may take a 

break. After a recess, the court is again formally opened to return members to their 

deliberations. These procedures ensure that no one improperly communicates with 

members during their deliberations and that no deliberations are carried on without 

all members being present. 

− 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. 

REFERENCES:

UCMJ art. 25 

Rule for Courts-Martial 501-505, 804-807, 813, 901, 911-1007 (2005) 

U.S. DEP’T OF ARMY PAM. 27-9, LEGAL SERVICES: MILITARY JUDGES’ BENCHBOOK (15

Sep 02) 
22 – The Military Commander and the Law 

TESTIFYING AS A WITNESS

As a commander, first sergeant, or supervisor, you or one of your subordinates may be 

called upon to testify at a court-martial or other administrative hearing 

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

portion (determining whether the accused is guilty or not guilty) of the trial to 

either help prove an element of the offense or provide a 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 be able to show that he/she possesses sufficient information and 

knowledge about the accused, separate and apart from the offenses committed 

by the accused. In short, the witness must have knowledge of the accused as a 

“whole person.” 

− The judge advocate calling you or your subordinate 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 or your subordinate prior to testifying. 

− You have an absolute duty to testify honestly when called, and if anyone attempts 

to influence your testimony one way or the other, even if you consider it a remark 

made in jest, you should immediately report that fact to the staff judge advocate 

REFERENCE: 

Rule for Courts-Martial 1001 (2005) 

ATTACHMENT: 

Tips to Witnesses in Preparation for a Hearing or Trial 
Legal Issues Specific to the Commander - 23 

TIPS TO WITNESSES IN PREPARATION FOR A HEARING OR TRIAL

− Always tell the truth 

− Review the facts prior to trial 

− Do not worry about being nervous. It is a normal reaction. 

− Never argue with the military judge or counsel for either side. Use military 

courtesy when addressing the military judge or officers of superior rank. 

− Be yourself on the stand and answer questions in a natural, conversational tone. 

Try not to be overly emotional or to appear insolent. 

− Do not try to answer a question you do not understand. Simply state, “I'm sorry, I 

do not understand your question.” 

− Do not be afraid to say you do not know the answer to the question. If it is the 

truth, “I don't know” is a perfectly acceptable answer. 

− Be prepared for cross-examination. Do not forget that the court members or the 

military judge can also ask you questions. Just stay on the stand until the military 

judge states that you are excused. 

− Do not be baited into emotional or angry reactions if the cross-examiner is verbally 

aggressive or is questioning your truthfulness. Remember that the counsel who 

called you as a witness can always set the record straight during examination. 

− Do not give conclusions and do not express an opinion unless you are requested to 

do so and no objection is made to your expression of opinion 

− If an objection is made to any question asked of you, wait until the military judge 

rules on the objection before answering the question 

− If you are asked for a “yes” or “no” answer to a question that cannot be answered 

with a “yes” or “no,” state that the question cannot be answered with a “yes” or 

“no” and explain your answer when you are asked to do so 

− If you are asked if you have discussed the case with the representative of either 

party, reply truthfully. Remember that there is a distinction between discussing a 

case and being told what to say. 

− Do not try to guess why a counsel may ask an unusual (to you) question during 

cross-examination. If there is no objection to the question, just answer it the best 

you can.

Quality Force Management - 25 

CHAPTER TWO: 

QUALITY FORCE MANAGEMENT 

Administrative Counselings, Admonitions, and Reprimands......................................26 

Unfavorable Information Files ....................................................................................33 

Control Rosters............................................................................................................36 

Administrative Demotions...........................................................................................38 

Selective Reenlistment.................................................................................................41 

Officer and Enlisted Performance Reports..................................................................43 

Officer Promotion Propriety Actions...........................................................................46 

Enlisted Promotion Propriety Actions.........................................................................49 
26 – 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 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 corrective in 

nature, not punitive. When properly used, they help maintain established Air Force 

standards and enhance mission accomplishment. 

WHAT ACTION IS APPROPRIATE 

− There are many factors to consider when determining what action is appropriate in 

response to a member’s departure from standards. 

− The Basics: AFI 36-2907, Unfavorable Information File (UIF) Program, Chapter 

3, contains guidance on administrative counselings, 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 a counseling or 

admonition and carries a stronger degree of official censure. 

− Primary Considerations: The decision to issue a letter of counseling, admonition, or 

reprimand should be based primarily on two factors. 

-- First is the nature of the incident. Counselings, admonitions and reprimands 

may be administered for any departure from Air Force standards. Unlike 

nonjudicial punishment under Article 15 of the Uniform Code of Military 

Justice (UCMJ), they are not limited to offenses punishable by the UCMJ. The 

seriousness of the departure should be considered before deciding what type of 

action is appropriate to take. 

-- Second is the 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. In other words, 

each time a service member departs from standards, the response should usually 

be more severe. 

− Other Considerations: While the nature of the incident and the member’s record are 

normally the key factors in deciding what actions to take, sometimes other 

considerations come into play. For example, suppose a member is arrested for a 

crime off base and is convicted in a civilian court. As the member was already 

convicted in a civilian court, the member will not normally be punished through 

nonjudicial punishment under Article 15 of the UCMJ or a court-martial. 
Quality Force Management - 27 

Administrative actions are the only options remaining to let the member know that 

the commander does not approve of the misconduct. In the above example, a stern 

letter of reprimand from the commander may be appropriate. If the commander 

feels that the member should not be in the Air Force, he or she could also initiate an 

administrative discharge. 

ISSUING THE COUNSELING, ADMONITION, OR REPRIMAND

− Counselings, admonitions, and reprimands may be either verbal or written, as 

appropriate, to correct the identified deficiency. Usually the counseling, 

admonition, or reprimand should be in writing, because the corrective action is 

more meaningful to the member and the infraction is documented. A verbal 

counseling may be recorded on an AF Form 174, Record of Individual Counseling 

(RIC). Letters of counseling (LOCs), letters of admonition (LOAs), and letters of 

reprimand (LORs) should be typed on letterhead and must comply with the 

requirements listed below. The attachment following this section is a sample 

format for an LOC, LOA, or LOR. Failure to follow the requirements for drafting 

and maintaining these documents could limit the use of the documents in a 

subsequent proceeding. 

− Drafting the Letter – LOCs, LOAs, and LORs must state 

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

-- What improvement is expected 

-- That further deviation may result in more severe action 

-- That the member has three duty days to respond and provide rebuttal matters 

-- That all supporting documents become part of the record 

--- Response time for reservists: Reservists not serving on extended active duty 

have 30 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 

− 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 Act 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 same Privacy Act rules. 

− A person intending to issue an LOC, LOA, or LOR should 
28 – The Military Commander and the Law 

-- Investigate to determine the infraction occurred 

-- Draft the letter according to the requirements of AFI 36-2907 as set forth above 

-- Read the individual the letter and have him/her immediately acknowledge 

receipt on the original letter by having the member fill in the date received and 

sign acknowledgement 

-- 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,” along with the issuer’s signature block, signature, and 

the date 

-- Give the member a copy of the letter 

-- After three duty days from the date the letter was issued, have the member 

indicate in an indorsement (example in attachment at end of this section) of the 

original letter whether or not he/she is submitting a response to the letter by 

having the member fill in the date of the indorsement, strike through the 

inapplicable language in parentheses, place his/her initials at the beginning and 

end of the line striking through the inapplicable language, and sign the 

indorsement 

--- Response time for reservists: Reservists not serving on extended active duty 

have 30 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 

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

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

issued the letter should write on the original letter beneath the member’s 

signature block, “<<Rand and Name of Member>> failed to provide matters in 

response to this letter within three duty days (or 30 days for reservists not 

serving on extended active duty) and refused to complete the 1st Ind,” along 

with the issuer’s signature block, signature, and the date 

-- If the member submits a response to the letter, advise the member within three 

duty days of the submission of the response of the final decision concerning 

information submitted by the member in an indorsement (example in 

attachment at end of this section). See AFI 36-2907, para. 3.5.1.6, concerning 

this new requirement. If using an indorsement similar to that in the attachment 

at the end of this section, the issuer of the letter should fill in the date of the 

indorsement, strike through the inapplicable language in parentheses, place 
Quality Force Management - 29 

his/her initials at the beginning and end of the line striking through the 

inapplicable language, and sign the indorsement. 

-- Inform all in the member’s chain of the letter. If appropriate/requested, send 

the letter, member’s written acknowledgement, 1st Ind, 2nd Ind (if applicable) 

and any documents submitted by the member to the member’s superiors or 

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

or PIF. 

RECORD KEEPING

− There are detailed rules concerning the maintenance and disposition of specific 

documents 

− An LOC, LOA, or LOR issued to an enlisted member may be filed in the enlisted 

member’s UIF by the member’s commander 

− If an officer receives an LOR, it is mandatory that it be placed in a UIF. An LOC 

or LOA issued to an officer may be placed in a UIF; it must be filed in the officer’s 

PIF if it’s not filed in a UIF. 

− Commanders refer optional letters (LOCs, LOAs, and LORs for enlisted members 

and LOCs and LOAs for officers) they wish to file in a UIF to the member along 

with an AF Form 1058 before establishing a UIF. LORs issued to officers must be 

filed in a UIF via AF Form 1058, but the commander does not need to submit the 

AF Form 1058 to the officer because the officer is provided with an opportunity to 

refute the LOR when it is initially presented. 

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 
30 – The Military Commander and the Law 

RESERVE/GUARD MEMBERS

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

counselings, admonitions, and reprimands to reservists who commit an offense 

even while in civilian status 

− Non-EAD reservists have 30 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, and if the individual mails his/her 

acknowledgment, the date of the postmark on the envelope will serve as the date of 

acknowledgment. An individual is presumed to be in receipt of official 

correspondence if it is delivered by certified mail to the individual’s address or best 

available address. 

− AFI 36-2907 does not apply to Air National Guard (ANG) members. Many state 

codes of military justice authorize letters of admonition or reprimand. There is no 

AFI or ANGI that addresses the issuing of counselings, admonitions, and 

reprimands to ANG members; however, commanders and supervisors have 

inherent authority to do so. Consult the servicing staff judge advocate before 

issuing an LOC, LOA or LOR to an ANG member. 

REFERENCES: 

AFI 33-332, Privacy Act Program (29 January 2004) 

AFI 36-2608, Military Personnel Records System (14 May 2003) 

AFI 36-2907, Unfavorable Information File (UIF) Program (17 June 2005) 

AFI 51-201, Administration of Military Justice (26 November 2003) 
Quality Force Management - 31 

SUGGESTED FORMAT FOR LETTERS OF

COUNSELINGS, ADMONITIONS, AND REPRIMANDS

 <<Date>> 

MEMORANDUM FOR <<Member’s Grade, Name, SSN>> 

FROM: <<Issuer’s Office Symbol>> 

SUBJECT: Letter of <<Counseling>><<Admonition>><<Reprimand>> 

1. Investigation has disclosed that <<describe what the member did or failed to do, 

citing specific incidents and dates>>. 

2. You are hereby <<counseled>><<admonished>><<reprimanded>>. <<Tailor the 

language in this paragraph to 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. 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. 

<<NAME, Rank>>, USAF 

<<Position of Person Issuing Letter>>
32 – The Military Commander and the Law 

ACKNOWLEDGEMENT 

I acknowledge receipt and understanding of this letter on <<date of issuance>>. I understand 

that I have three (3) duty days from 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. 

<<MEMBER’S NAME, Rank>>, USAF 

1st Ind, <<Member’s Rank, Name, SSN>> Date: 

______________ 

MEMORANDUM FOR <<Issuer’s 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). 

<<MEMBER’S NAME, Rank>>, USAF 

[INCLUDE INDORSEMENT BELOW AS REQUIRED] 

2nd Ind, <<Issuer’s Office Symbol>> Date: ____________ 

MEMORANDUM FOR <<Member’s Rank, Name, SSN>> 

I have considered the response you submitted on <<date member submitted response>>. (The 

letter of <<counseling>><<admonition>><<reprimand>> remains in effect) (I have decided to 

withdraw the letter of <<counseling>><<admonition>><<reprimand>>). 

<<NAME, Rank>>, USAF 

<<Position of Person Issuing Letter>> 
Quality Force Management - 33 

UNFAVORABLE INFORMATION FILES

The unfavorable information file (UIF) provides commanders with an official 

repository of substantiated derogatory data concerning an Air Force member’s personal 

conduct and duty performance. With some exceptions, the commander has wide 

discretion as to what should be placed in a UIF and what should be removed. 

ENLISTED PERSONNEL

− Optional Entries: At the commander’s discretion, the following documents, among 

others, may be placed into the UIF for up to one year 

-- A record of nonjudicial punishment under Article 15 of the Uniform Code of 

Military Justice (UCMJ) when punishment is not suspended or does not exceed 

one month. Commanders may only remove the record early if the punishment 

is complete. 

--- A record of conviction by a civilian court or an action equivalent to a 

finding of guilty for an offense where the maximum confinement penalty 

authorized for the offense is one year or less 

-- Written letters of reprimand, admonition, or counseling 

-- Confirmed incidents involving discrimination or sexual harassment of 

personnel 

− Mandatory Entries: The following information must be placed into a UIF 

-- Records of nonjudicial punishment under Article 15 of the UCMJ when 

punishment is suspended or when the punishment period is in excess of one 

month (maximum two year disposition) 

-- Commanders may only remove the record early if the punishment is complete 

-- Records of conviction by civilian courts or actions equivalent to a finding of 

guilty of an offense which resulted in or could have resulted in a penalty of 

confinement for more than one year or death (maximum two year disposition) 

-- Records of court-martial convictions (maximum two year disposition). Only 

the wing commander or convening authority (whichever is higher in rank) may 

remove a court-martial order early, and it cannot be removed if the courtmartial punishment, sentence, judgment or action is incomplete. 

-- Control roster actions (maximum one year disposition) 
34 – The Military Commander and the Law 

OFFICERS

− An officer UIF must be established when an officer receives nonjudicial 

punishment under Article 15 of the UCMJ (regardless of punishment imposed), a 

letter of reprimand (LOR), or a court-martial conviction 

-- A record of court-martial conviction must remain for a period of four years or 

PCS plus one year (whichever is later), only the wing commander or the 

convening authority (whichever is higher in rank) may remove it early, and it 

cannot be removed if the court-martial punishment, sentence, judgment or 

action is incomplete 

-- Records of nonjudicial punishment under Article 15 of the UCMJ and LORs 

remain on file for a maximum period of two years, and only the wing 

commander or issuing authority/imposing commander (whichever is higher in 

rank) may remove them early. A record of nonjudicial punishment under 

Article 15 may only be removed early if the punishment is complete. 

− A UIF must be established when an officer is convicted by a civilian court or there 

is an action equivalent to a finding of guilty of an offense which resulted in or 

could have resulted in a penalty of confinement for more than one year or death. A 

record of a civilian conviction remains on file for a period of two years, and only 

the wing commander may remove it early 

− A UIF must be established when an officer is placed on the control roster. 

Placement on the control roster remains on file for one year, and only the wing 

commander or issuing authority (whichever is higher in rank) may remove it early 

− Letters of admonition and letters of counseling may be filed in a UIF 

-- If filed in the UIF, they will stay in the UIF for a period of no more than two 

years and only the wing commander or the issuing authority (whichever is 

higher in rank) may remove them early 

-- If not filed in the UIF, they must be filed in the member’s personnel 

information file (PIF), and they will stay in the PIF until the officer’s PCS 

ACCESS AND REVIEW

− Access: Besides the commander, only certain individuals are to have access to UIFs 

and their contents 

-- The member who has the UIF 

-- First sergeants 
Quality Force Management - 35 

-- Rating officials, when preparing to write or endorse a performance report or 

when preparing a promotion recommendation 

-- The senior Air Force officer or commander of an Air Force element in a joint 

command 

-- The Air Force element section commander in a joint command 

-- MPF personnel, IG personnel, inspection team members, legal office personnel, 

law enforcement personnel, MEO personnel, and substance abuse counselors 

authorized by the commander to review the document in the course of their 

official Air Force duties 

-- Program managers for USAF Reserve programs 

− Review: All UIFs require a periodic review to ensure continued maintenance of 

documents in the UIF is proper 

− The unit commander must review all UIFs 

-- 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, PCS, PRP duties, retraining, EPRs or OPRs 

REFERENCES: 

AFI 36-2608, Military Personnel Records System (14 May 2003) 

AFI 36-2907, Unfavorable Information File (UIF) Program (17 June 2005) 
36 – The Military Commander and the Law 

CONTROL ROSTERS

Commanders at all levels are authorized to use a control roster for individuals whose 

duty performance is substandard or who fail to meet or maintain Air Force standards of 

conduct, bearing, or integrity – on or off duty. 

PURPOSE

− Control rosters assist commanders in controlling or evaluating a member’s 

performance and provide the member an opportunity to improve that performance 

− A single incidence of substandard duty performance or an isolated breach of other 

standards not likely to be repeated ordinarily should not be a basis for a control 

roster action. Other rehabilitative tools should be considered before placing a 

member on the control roster. 

− 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

− Commanders place an individual on the control roster by using AF Form 1058, 

which puts the member on notice that his/her performance and behavior must 

improve or he/she will face more severe administrative action or punishment 

-- Members acknowledge receipt of the action and have three duty days to submit 

a response before the AF Form 1058 is finalized 

-- The control roster observation period may last for up to six months for active 

duty personnel 

-- Commanders at all levels have the authority to add enlisted members to or 

remove them from a control roster 

-- 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 

-- 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 
Quality Force Management - 37 

-- Commanders may direct an OPR or EPR before entering or removing the 

person from the control roster, or both 

-- UIF action is required if an individual is placed on the control roster 

− Numerous personnel actions are affected by placing a member on a control roster, 

including, but not limited to 

-- PCS/PCA reassignment is limited 

-- All formal training must be canceled 

-- Eligibility for promotions and reenlistments 

REFERENCES: 

AFI 36-2608, Military Personnel Records System (14 May 2003) 

AFI 36-2907, Unfavorable Information File (UIF) Program (17 June 2005) 
38 – The Military Commander and the Law 

ADMINISTRATIVE DEMOTIONS

An administrative demotion is another quality force management tool commanders 

have available to help ensure a quality enlisted force, but it should not be used when 

action under the Uniform Code of Military Justice is more appropriate and authorized. 

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. 

− DEMOTION AND APPELLATE AUTHORITIES

− The demotion authority is the group commander (or equivalent level commander) 

for master sergeants (E-7) and below. For senior master sergeants (E-8) and chief 

master sergeants (E-9), the MAJCOM/CC, FOA/CC, or DRU/CC is the demotion 

authority (unless delegated to the CV, CS, MP, DP, or NAF/CC). 

− The appellate authority is the next level commander 

REASONS FOR DEMOTION 

− 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. Reasons for demotion include 

-- Elimination of officer trainees or pipeline students 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 NCO responsibilities 

-- Failure to keep fit 

− If a sufficient reason exists to initiate a demotion action, a commander should use 

the entire military record in deciding whether a demotion action is appropriate

DUE PROCESS

− Commanders should consult with the servicing staff judge advocate prior to 

initiation to ensure appropriateness of the action and legal sufficiency 

− The following procedures must be followed in an administrative demotion action 
Quality Force Management - 39 

-- The immediate commander notifies the member in writing of the intention to 

recommend demotion, citing the paragraph, the demotion authority if other than 

the initiating commander, and the recommended grade. The notification must 

also include the specific reasons for the demotion and a complete summary of 

the supporting facts. 

-- The immediate commander informs the member of his/her right to counsel and 

the right to respond within three (3) duty days orally and/or in writing 

--- The initiating commander should get a signed acknowledgement of receipt 

of the action from the member 

--- The initiating commander must also inform eligible members of their right 

to apply for retirement in lieu of demotion 

-- Following the member’s response, if the commander elects to continue the 

proceedings, the case file is forwarded with a summary of the member’s written 

and verbal statements to the military personnel flight for processing prior to 

forwarding to the demotion authority 

-- The member must be notified in writing of the decision to forward the action to 

the demotion authority 

-- The demotion authority obtains a written legal review before making a decision 

-- The demotion authority may demote more grades than recommended by the 

initiating commander 

-- If the demotion authority decides to demote the member, the member is 

informed of his/her appeal rights 

“DEMOTABLE” GRADES

− The following demotions are permitted: 

-- E-2 to E-1; 

-- E-3 to E-2; and 

-- 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 
40 – The Military Commander and the Law 

RESTORATION OF GRADE 

− Once the demotion action is complete, the demotion authority may, if appropriate, 

restore the member’s original grade between three months and six months after the 

effective date of the demotion 

REFERENCE: 

AFI 36-2503, Administrative Demotion of Airmen (20 July 1994) 
Quality Force Management - 41 

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 

− Commanders have total SRP selection and nonselection authority 

− Decisions should be in line with other qualitative recommendations, such as 

promotion, and must be based upon substantial evidence 

− The SRP applies to all enlisted personnel eligible for consideration or 

reconsideration 

− SRP nonselection makes members ineligible for promotion and automatically 

cancels projected promotion line numbers 

− Commanders will conduct early SRP consideration for members who have not 

previously received formal SRP consideration, are otherwise eligible to reenlist, 

and request early separation for the following reasons 

-- Palace Chase 

-- Early separation directed by HQ USAF (except Special Separation 

Benefit/Voluntary Separation Incentive) 

-- Officer training program, other than AFROTC 

-- Early release to further education 

-- Sole surviving son or daughter 

-- Early release from extension 

-- Accepting public office 

-- Miscellaneous reasons 

-- Pregnancy or childbirth 

-- End of year early release 

− Immediate supervisors are responsible for ensuring members meet quality 

standards 
42 – The Military Commander and the Law 

-- Provide unit commanders with recommendations of a member's career potential 

-- Prepare AF Form 418, Selective Reenlistment Program Consideration 

− Unit commanders consider the supervisor’s recommendation, the member's duty 

performance and career force potential before making a decision 

-- If the member is selected for reenlistment, the commander completes the SRP 

roster 

-- If the supervisor recommends nonselection or the commander nonconcurs with 

the supervisor’s recommendation to allow the member to reenlist, the 

commander must 

--- Notify the member of the specific reasons for nonselection, areas needing 

improvement, appeal opportunity, promotion ineligibility, and the 

possibility of future reconsideration and selection 

--- Permit the member three workdays to decide whether to appeal the decision 

− The appellate authority may be the group commander, wing commander, or 

Secretary of the Air Force, depending on the member’s length of service 

− A legal review is only required when a member appeals SRP decisions; however, it 

is recommended that commanders contact the servicing legal office prior to 

notifying a member of a nonselection decision 

− Coordination with the legal office can identify any potential problems with the 

package and avoid issues during the appeal process 

REFERENCE: 

AFI 36-2606, Reenlistment in the United States Air Force (21 November 2001) 
Quality Force Management - 43 

OFFICER AND ENLISTED PERFORMANCE REPORTS

The single most important element needed for successful mission accomplishment is 

performance. The Officer and Enlisted Evaluation Systems emphasize the importance 

of performance and serve a variety of purposes. First, they provide meaningful 

feedback to individuals on what is expected of them, advice on how well they are 

meeting those expectations, and advice on how to better meet those expectations. 

Second, they provide a reliable, long-term, cumulative record of performance and 

potential based on that performance. Finally, they provide officer central selection 

boards, senior NCO evaluation boards, the Weighted Airman Promotion System and 

other personnel managers sound information to assist in identifying the best qualified 

officer and enlisted personnel. 

The following is a summary of officer performance reports (OPRs) and enlisted 

performance reports (EPRs). A properly prepared performance report is critical in 

determining who should be selected for advancement and should accurately reflect an 

individual’s performance. As a key quality force indicator, it should take into account 

any adverse administrative or punitive actions taken against the individual. 

PERFORMANCE FEEDBACK 

− Performance feedback is a private, formal communication a rater uses to tell a ratee 

what is expected regarding duty performance and how well the ratee is meeting 

those expectations. The rater documents the ratee’s performance on a Performance 

Feedback Worksheet (PFW) and uses the PFW format as a guide for conducting 

feedback sessions to discuss objectives, standards, behavior, and performance with 

the ratee. Providing this information encourages positive communication, 

improves performance and professional growth. 

− The rater is responsible for preparing, scheduling, and conducting the feedback 

session. These sessions can only be productive when supervisors stay abreast of 

current standards and expectations. They 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 PFW to the ratee, with a signed and dated feedback 

notice forwarded to the command support staff for filing. The rater may keep a 

copy for personal reference, but the PFW 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 or she did not receive required feedback or claims the sessions 

were inadequate. The ratee may use the completed form for any purpose he or she 

desires. 
44 – The Military Commander and the Law 

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 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 PRF, if the ratee has been convicted by 

court-martial 

-- 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, paragraphs 3.7.6. and 3.7.7 

-- Comments referring to performance feedback 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 this should only be done after consulting with the servicing staff judge 

advocate. 

-- 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 
Quality Force Management - 45 

-- Temporary or permanent disqualification under AFI 36-2104, Nuclear Weapons 

Personnel Reliability Program

-- Participation in drug or rehabilitation programs 

-- Performance as a court-martial member 

-- Punishment received as a result of an administrative or judicial action 

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. Referral procedures are established to allow the ratee to respond to 

the items that make a report a referral before it becomes a matter of record. 

− Refer a performance report when: 

-- An evaluator marks “Does Not Meet Standards” in any performance factor in 

Section V 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 IV 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. 

− The procedures involved when referring an OPR or EPR are provided in AFI 36-

2406, beginning with paragraph 3.9 

REFERENCE: 

AFI 36-2104, Nuclear Weapons Personnel Reliability Program (5 August 2005) 

AFI 36-2406, Officer and Enlisted Evaluation Systems (15 April 2005) 
46 – The Military Commander and the Law 

OFFICER PROMOTION PROPRIETY ACTIONS

Officer promotion propriety action by a commander includes presenting information to 

SecAF or a selection board to find an officer is not qualified for promotion, removing 

an officer from a promotion list, or delaying a promotion date. 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 or 

supervisors have information showing an officer is not qualified to perform the duties 

of the next grade, they should discuss that information with the servicing staff judge 

advocate to determine whether sufficient evidence exists to support a proprietary 

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) the officer is not 

mentally, physically, morally, or professionally qualified to perform duties of a 

higher grade 

− Unqualified officers should neither be selected for promotion nor allowed to remain 

on a promotion list if already selected. Accordingly, several tools are available to 

ensure that unqualified officers are not promoted – these tools are listed below. 

NOT QUALIFIED FOR PROMOTION (NQP) 

− When it is more likely than not that an officer is not mentally, physically, morally, 

or professionally qualified to perform the duties of the higher grade, the 

commander recommends the Secretary of the Air Force (SecAF) find him/her NQP 

− The officer’s immediate commander initiates the recommendation to find the 

officer NQP and forwards it with appropriate coordination to the MAJCOM 

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 him/her on active duty for 6 months from the date promotion would have 

occurred (unless retention is inconsistent with good order and discipline) and give 

him/her an opportunity to overcome any problem and qualify for promotion 
Quality Force Management - 47 

REMOVAL FROM A PROMOTION LIST

− A commander may initiate action to remove an officer from a promotion list when 

it is more likely than not that an officer is not mentally, physically, morally, or 

professionally qualified to perform the duties of the higher grade 

− The officer’s immediate commander initiates the removal action and forwards it 

with appropriate coordination to the MAJCOM commander for review. The 

package then goes to the 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

− The action should be initiated when it is more likely than not the officer is not 

mentally, physically, morally or professionally qualified to perform the duties of 

the higher grade 

− The officer’s immediate commander initiates the delay of promotion before the 

effective date of promotion and forwards it with appropriate coordination to the 

MAJCOM commander for review. The delay is effective when the immediate 

commander notifies the officer of the delay, either verbally or in writing. 

− The MAJCOM commander approves initial promotion delays up to 6 months, 

although SecAF may grant extensions for up to an additional 12 months. The 

officer may make a written response to SecAF. 

PROPRIETY ACTION PROCEDURES

− 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. 

− 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. 

− The officer should acknowledge the action and be allowed to respond. Include in 

the package any comment from the officer. 

− Table 5.1 of AFI 36-2501 contains procedures for initiating propriety actions 
48 – The Military Commander and the Law 

RESERVE AND AIR NATIONAL GUARD OFFICERS

− As with active duty officers, commanders have the responsibility to ensure that 

officers in the USAF Reserves and Air National Guard have the necessary 

qualifications to meet the responsibilities of a higher grade 

− Like with active duty officers, commanders of officers in the USAF Reserves and 

Air National Guard initiate a propriety of promotion action if the preponderance of 

the evidence indicates (it is more likely than not) 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 

− The procedures for actions involving officers in the USAF Reserves and Air 

National Guard can be found in Chapter 7 of AFI 36-2504 

REFERENCES:

AFI 36-2501, Officer Promotions and Selective Continuation (16 July 2004) 

AFI 36-2504, Officer Promotion, Continuation and Selective Early Removal in the 

Reserve of the Air Force (9 January 2003) 
Quality Force Management - 49 

ENLISTED PROMOTION PROPRIETY ACTIONS

− 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 responsibility for maintaining a quality enlisted force rests with commanders 

who make recommendations for promotions 

− The following tools are available to commanders when managing enlisted 

promotions 

NONRECOMMENDATION

− An enlisted member is considered ineligible for promotion when nonrecommended 

or removed from the promotion list by the promotion authority before the effective 

date of promotion. This is commonly referred to as “redlining,” and typical 

grounds for removal include poor or declining performance trends or recent serious 

misconduct. 

− A promotion authority can nonrecommend E-3s and below in monthly increments 

up to 6 months. All other ranks are nonrecommended for a specific promotion 

cycle. 

− Airmen also become ineligible for promotion under other circumstances as outlined 

in AFI 36-2502, 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 Article 15 of the Uniform Code of Military Justice (UCMJ) 

-- Conviction by court-martial or undergoing punishment/suspended punishment 

imposed by a court-martial 

-- Conviction by a civilian court or undergoing punishment/suspended 

punishment, probation, or work release program, excluding minor traffic 

violations 
50 – The Military Commander and the Law 

WITHHOLDING 

− 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 

− 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 actions 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 

-- 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 

− If the commander terminates the withhold action, the member receives his/her 

original DOR, and the effective date is the date the commander terminates the 

withhold action and recommends promotion 

DEFERRAL

− 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. 

− 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 an NCO 

is not suited to take on the increased responsibilities of the higher grade, then 

nonrecommendation is the right course of action, not deferral. 

− The date of rank and effective date is the first day of the month after the deferral 

period ends 
Quality Force Management - 51 

PROCEDURES

− In all instances of nonrecommending, deferring, and withholding promotions, the 

commander 

-- Informs the member of adverse actions in writing or verbally before the 

promotion effective date, confirming verbal notification in writing within 5 

workdays 

-- The notification includes specific reasons, dates, occurrences, and duration of 

the action 

-- The individual should acknowledge receipt of the notification or confirmation 

-- Files the letter and the airman’s acknowledgment in the Unit Personnel Record 

Group 

RESERVE ENLISTED MEMBERS

− As with members of the regular components, commanders have the responsibility 

to ensure that reserve enlisted members have the necessary qualifications to meet 

the responsibilities of a higher grade 

− 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, the 

member’s commander can disapprove the promotion using AF Form 224, 

Recommendation and Authorization for Promotion of Airman as Reserve of the Air 

Force 

− The procedures for actions involving reserve enlisted members can be found in 

Chapter 4 of AFI 36-2502 

REFERENCE: 

AFI 36-2502, Airman Promotion Program (6 August 2002) 

Nonjudicial Punishment Under Article 15, UCMJ - 53 

CHAPTER THREE: 

NONJUDICIALPUNISHMENT UNDER

ARTICLE 15, UCMJ 

Nonjudicial Punishment Overview and Procedures ....................................................54 

Supplementary Nonjudicial Punishment Actions........................................................60 

Vacating Suspended Nonjudicial Punishment.............................................................63 

The Remotivation Program..........................................................................................65 

Quality Force Management Effects of Nonjudicial Punishment.................................67 
54 – The Military Commander and the Law 

NONJUDICIAL PUNISHMENT OVERVIEW AND PROCEDURES

Nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice 

(UCMJ), is one of the commander's most valuable tools for maintaining morale, good 

order, discipline, and efficiency 

− Generally, any commander who is a commissioned officer may impose NJP for 

minor offenses committed by members under his or her command. The offense 

must violate the UCMJ. 

-- In deciding whether or not an offense is minor, commanders should consider 

--- The nature of the offense and the circumstances surrounding its commission 

--- The member's age, rank, duty assignment, record, and experience 

--- The maximum sentence a court-martial could impose 

-- Generally, an offense is not considered minor if a general court-martial could 

punish the offense with a dishonorable discharge or confinement for more than 

one year 

− Commanders must confer with the staff judge advocate (SJA), or a designee, before 

initiating nonjudicial punishment proceedings and before imposing punishment. 

The Military Justice Section of the base legal office prepares the Air Force (AF) 

Form 3070, Record of Nonjudicial Punishment Proceedings. 

− While no standard of proof is applicable to any phase of Article 15 proceedings, 

commanders should recognize members are entitled to demand trial by courtmartial where proof beyond a reasonable doubt by competent evidence is required 

for conviction. Therefore, commanders should consider whether such proof is 

available before initiating action under Article 15. If not, NJP is generally not 

warranted. 

− Commanders should consider the punishment limitations of their grade when 

deciding whether a more senior commander should impose the NJP. Limitations 

are on the AF Form 3070 and in AFI 51-202, Tables 3.1 and 3.2 (attached). 

− Commanders should initiate NJP action (by serving the AF Form 3070) as soon as 

possible after a member has committed an offense and the facts have been 

adequately investigated 

-- Commanders should serve the AF Form 3070 on members within 10 days of 

the case-ready date. In general, this is the date when the commander has 
Nonjudicial Punishment Under Article 15, UCMJ - 55 

adequate information to decide how to dispose of the case. Refer to AFI 51-

202, Attachment 3, for more detailed information on how to determine the 

“case-ready date.” 

-- Failure to meet this suggested processing goal does not preclude commanders 

from initiating NJP proceedings at a later date 

− Once notified of NJP proceedings, by way of the AF Form 3070, members are 

allowed three duty days (72 hours) to respond. Upon written application and for 

good cause, the initiating commander may approve a request for additional time to 

respond. 

-- Commanders should encourage members to consult with the Area Defense 

Counsel (ADC) in all cases 

-- Once served with the AF Form 3070, the member has the right to examine all 

statements and evidence available to the commander that the commander relied 

upon in offering/imposing NJP, unless privileged or restricted by law, 

regulation, or instruction. The legal office normally supplies the evidence to 

the ADC. 

-- If the member fails to indicate within three duty days whether he or she will 

accept the Article 15, the commander may continue with the proceedings. The 

commander notes the member's failure to respond on the AF Form 3070. 

-- The member’s failure to respond in time is deemed acceptance of NJP 

proceedings. However, if the commander believes the failure to respond was 

for reasons beyond the member’s control, the commander may not proceed with 

NJP action. Consult with the SJA on this matter. 

-- If a member decides to accept NJP, he or she is entitled to present matters in 

defense, mitigation, and extenuation 

--- By accepting NJP the member is not admitting guilt. The member is merely 

consenting to the procedure, which includes the choice of having the 

commander decide the case rather than going before a court. 

--- Members may present matters in person, in writing, or both 

-- If a member requests a personal appearance, he or she is entitled to various 

information and certain procedural rights. For example, he or she is entitled to 

--- Be informed in accordance with Article 31(b), UCMJ, rights 

--- Be informed of and have an opportunity to examine the evidence against 

him or her 
56 – The Military Commander and the Law 

--- Be accompanied by a spokesperson (who does not have to be a lawyer) 

--- Request the presence of relevant, reasonably available witnesses 

--- Present matters in defense, extenuation, and mitigation 

-- Although certain exceptions exist, personal appearances will be open to the 

public at the member's request. The commander may also choose to open the 

presentation to the public, even if the member objects (consult with the SJA on 

if this situation arises). 

− After the personal presentation (if one is requested), and after consideration of all 

matters in defense, mitigation, and extenuation, the commander must decide 

-- Whether the member committed the offense 

-- If so, what punishment to impose 

− Commanders are required to confer with the SJA before imposing punishment 

except where impracticable due to military exigencies. The legal office will 

normally type the appropriate punishment language on the AF Form 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, an unsuspended reduction in grade (“hard bust”) may be 

reserved for repeat offenders, cases where past rehabilitative efforts have 

failed, or for the most serious offenses 

-- 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 (attached) 

-- There are limitations on the combination of some punishments 

--- Correctional custody cannot be combined with restriction and/or 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 (officers only) cannot be combined with restriction 
Nonjudicial Punishment Under Article 15, UCMJ - 57 

-- Unless the commander specifies otherwise, unsuspended reductions in grade 

and forfeitures take effect on the date the commander imposes punishment. All 

other unsuspended punishments take effect immediately upon notification to the 

member. Suspension of a punishment takes effect on the imposition date. 

− Appealing NJP: Members are entitled to appeal nonjudicial punishment to the “next 

superior authority” in the commander's chain of command 

-- The member may appeal when he or she considers the punishment to be 

"unjust" or "disproportionate" to the offense. A member may assert the 

punishment was unjust because the offense was not committed. Thus, the 

“guilty finding,” the punishment, or both may be appealed. 

-- Members must appeal the punishment within five calendar days unless they 

request an extension in writing within the five calendar days and the 

commander imposing the punishment grants it for good cause 

-- Members must submit all evidence supporting their appeals to the commander 

who imposed the original punishment 

-- The commander may deny all relief, grant partial relief, or grant all relief 

requested by the member. If the commander does not grant all the requested 

relief, he or she must forward the appeal to the appellate authority through the 

servicing SJA. 

-- 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. 

-- Punishments are not stayed during the appeal process. However, if the 

commander and/or appellate authority fail to take action on an appeal within 

five days after submission, and if the member so requests, any unexecuted 

punishment involving restraint or extra duties will be delayed until after appeal. 

REFERENCES: 

UCMJ art 15 (2005) 

MANUAL FOR COURTS-MARTIAL, UNITED STATES, Part V (2005) 

AFI 51-202, Nonjudicial Punishment (7 November 2003) 

ATTACHMENT: 

Tables of Enlisted and Officer Punishments, AFI 51-202, Tables 3.1 and 3.2 
58 – The Military Commander and the Law 

Table 3.1. Enlisted Punishments. 

Punishment Imposed by Lt or 

Capt 

Imposed by Major Imposed by Lt Col 

or Above 

Additional 

Restrictions

May not Impose 

NJP on CMSgt or 

SMSgt 

May not Impose 

NJP on CMSgt or 

SMSgt 

See Note 2 for 

reduction of CMSgt 

or SMSgt 

Correctional 

Custody

Up to 7 days 30 days 30 days 

CMSgt No CMSgt No CMSgt Note 2 

SMSgt No SMSgt No SMSgt Note 2 

MSgt No MSgt No MSgt One 

Grade 

TSgt No TSgt One 

Grade TSgt One Grade 

SSgt One 

Grade SSgt One Grade SSgt One Grade 

SrA One 

Grade SrA to AB SrA to AB 

A1C One 

Grade A1C to AB A1C to AB 

Reduction 

(See Note 2) 

Amn to AB Amn to AB Amn to AB 

Forfeiture 7 days pay 1⁄2 of 1 month’s pay 

per month for 2 

months 

1⁄2 of 1 month’s pay 

per month for 2 

months 

Reprimand Yes Yes Yes 

Restriction 14 days 60 days 60 days 

Extra Duties 14 days 45 days 45 days 

NOTES: 

1. See MCM, Part V, paragraph 5d for further limitations on combinations of 

punishments. 

2. CMSgt or SMSgt may be reduced one grade only by MAJCOM commanders, 

commanders of unified or specified commands, or commanders to whom promotion 

authority to these grades have been delegated. See AFI 36-2502, Airmen Promotion 

Program. 

3. Neither bread and water nor diminished rations punishments are authorized. 

4. Frocked commanders may exercise only that authority associated with their actual 

pay grade. No increased punishment authority is conferred by assumption of the title 

and insignia of the frocked grade. 
Nonjudicial Punishment Under Article 15, UCMJ - 59 

Table 3.2. Officer Punishments. 

Punishment Imposed by Colonel Imposed by General 

Officer or GCMCA

Correctional Custody No No 

Reduction No No 

Forfeiture No 1⁄2 of 1 month’s pay 

per month for 2 months 

Reprimand Yes Yes 

Arrest in Quarters No 30 days 

Restriction 30 days 60 days 

Extra Duties No No 

NOTES: 

1. Officers in the grade of Lt Colonel and below (includes frocked Colonels) may not 

impose NJP on officers. 

2. Only MAJCOM commanders, commanders of unified commands and their 

equivalents, or higher may impose NJP on general officers. 

3. See MCM, Part V, paragraph 5d, for further limitations on combinations of 

punishments. 
60 – The Military Commander and the Law 

SUPPLEMENTARY NONJUDICIAL PUNISHMENT ACTIONS

Supplementary nonjudicial punishment (NJP) actions are important tools for 

commanders to understand when dealing with NJP. Commanders are required to 

consult with the servicing staff judge advocate (SJA), or designee, before proceeding 

with any supplementary NJP actions. 

− Procedure: Supplementary NJP actions are accomplished on Air Force Form 3212, 

Record of Supplementary Action under Article 15, and are filed with the original 

NJP action. Members may request post-punishment relief (using the sample format 

in AFI 51-202, Atch 6), or the commander may grant such relief on his or her own 

initiative. 

− Suspension: Suspension postpones all or part of a punishment for a specific 

probationary period. The suspended punishment is later remitted (canceled) if the 

member successfully completes the period of the suspension without either

committing another offense under the UCMJ or violating a condition of the 

suspension specified by the commander. Commanders must consult with the 

servicing SJA, or designee, before imposing conditions on suspensions. 

-- Suspension is usually appropriate for a first-time offender or where there are 

persuasive extenuating or mitigating circumstances 

-- The period of a suspension 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. 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. However, the effective date of 

rank is the date of the document directing the suspension and 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: Mitigation is a reduction in either the quantity or quality of a 

punishment, with its general nature remaining the same as the original punishment. 

Mitigation is appropriate when the member’s later good conduct merits a reduction 
Nonjudicial Punishment Under Article 15, UCMJ - 61 

in the punishment, or when the commander later determines the punishment 

imposed was disproportionate. 

-- With the exception of reduction in grade, only the unexecuted part or amount of 

the punishments can be mitigated 

-- Punishment consisting of reduction in grade may be mitigated even after it has 

been executed. In such cases, the mitigation date will become the offender's 

new date of rank and effective date of rank. The member will not be entitled to 

receive back pay. 

-- Reduction in grade may only be mitigated to forfeitures and may only be 

mitigated within 4 months after the date of execution 

-- Punishments involving loss of liberty, such as correctional custody or 

restriction, cannot be mitigated to forfeitures or reduction in grade 

-- 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: Remission excuses or cancels any unexecuted portion of a punishment. 

Remission is appropriate under the same circumstances as mitigation. 

-- Commanders may remit punishments any time before the execution of the 

punishment is completed 

-- An unsuspended reduction in rank is executed at imposition, so it can never be 

remitted 

− Set Aside: Setting aside an Article 15 is an action where the punishment, or any 

part of the punishment, whether executed or unexecuted, is set aside 

-- Any property, privileges, or rights, affected by the portion of the punishment set 

aside are restored 

-- Unlike suspension, mitigation, and remission, setting aside a punishment is not 

considered rehabilitative in nature and should not be used on a routine basis 

-- Set aside is appropriate only if the commander believes that, under all the 

circumstances of the case, the punishment has resulted in a clear injustice

-- Punishments should be set aside within a reasonable time (4 months, except in 

unusual circumstances) after the punishment is originally imposed 
62 – The Military Commander and the Law 

− Vacation: A vacation action involves imposing punishment that was previously 

suspended either at the time the original NJP was imposed or as part of 

supplementary NJP relief 

REFERENCES: 

UCMJ art. 15 

MANUAL FOR COURTS-MARTIAL, UNITED STATES, Part V (2005) 

AFI 51-202, Nonjudicial Punishment, 7 November 2003 
Nonjudicial Punishment Under Article 15, UCMJ - 63 

VACATING SUSPENDED NONJUDICIAL PUNISHMENT

Vacating suspended nonjudicial punishment (NJP) means imposing punishment that 

was previously suspended either at the time the original NJP was imposed or as part of 

supplementary NJP relief. A commander (including a successor in command) may 

vacate the suspension of punishment under Article 15 if he or she had the authority to 

impose the original punishment. Commanders must consult the servicing SJA before 

taking action to vacate suspended punishment. 

− Vacating a suspended punishment may be appropriate if, during the suspension 

period, the member violates: a condition of suspension specified in writing by the 

commander or any punitive article of the UCMJ. With respect to violating a 

punitive article of the UCMJ, 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. 

− A new serious offense may be the basis for a vacation action and additional NJP 

action 

− Procedure for vacation actions 

-- The commander must notify and advise the member of the intended vacation 

action by using an AF Form 366, Record of Proceedings of Vacation of 

Nonjudicial Punishment. It contains 

--- The new offense which the commander suspects the member has committed 

(or what condition 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 type the language describing the offense and other 

pertinent information concerning the suspended punishment on the AF Form 

366 

-- The member must receive the AF Form 366 during the period of the 

suspension, at which point the suspension period is stayed 

− Member’s elections 

-- The member has 3 duty days to make elections 
64 – The Military Commander and the Law 

-- Member is entitled to consult with a lawyer; may attach a written presentation; 

may request a personal appearance 

-- If the member fails to respond within 3 duty days, the commander can continue 

by noting in item 3 of the AF Form 366 “member failed to respond.” However, 

if the commander believes the failure to respond was out of the member’s 

control, the commander cannot continue without good cause. 

-- The member does not have the right to demand a trial by court-martial during a 

vacation action 

− Commander’s decision. Following the commander’s consideration of the evidence, 

including any matters presented by the member, the commander takes one of the 

following actions on the AF Form 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 members violated the UCMJ or a condition of the suspension 

− Effects of vacation action on suspended reductions. If a suspension of a reduction 

in grade is vacated, the member's date of rank will be the date the commander 

imposed the original punishment. The effective date, however, 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: 

MANUAL FOR COURTS-MARTIAL, UNITED STATES, Part V (2005) 

AFI 51-202, Nonjudicial Punishment (7 November 2003) 
Nonjudicial Punishment Under Article 15, UCMJ - 65 

THE REMOTIVATION PROGRAM

(CORRECTIONAL CUSTODY) 

The Remotivation Program, formerly Correctional Custody, is a form of nonjudicial 

punishment (NJP), available under Article 15 of the Uniform Code of Military Justice 

(UCMJ) that a commander may impose on enlisted members of his or her command. 

The Remotivation Program provides commanders a secure setting in which to maintain 

discipline with correctional treatment that returns members punished under Article 15 

to the mainstream Air Force. 

− The Remotivation Program punishes, rehabilitates, and deters members punished 

under Article 15, and visibly deters others on the installation from engaging in 

misconduct 

-- The Remotivation Program is not considered confinement, but is a significant 

restraint on an individual's liberty 

-- The Remotivation Program includes the involvement of a number of referral 

services (such as religious, medical, legal, and/or personal affairs) to assist 

individuals in understanding the extent of their misconduct, the avenues 

available to assist them in the future, and ways to avoid future problems 

-- The Remotivation Program should only be used in cases where the commander 

believes the member can benefit from the program and is a candidate for 

rehabilitation 

− In order for the Remotivation Program to be most effective, it should be imposed 

early in a member's career 

-- Commanders should consider the Remotivation Program particularly when 

administering NJP to first-time offenders in the grades of E-1 through E-4, 

assuming the member has rehabilitative potential 

-- Commanders should not normally consider the Remotivation Program in cases 

where the member 

--- Will be separated for cause following completion of the NJP proceedings 

--- Has previously been enrolled in the Remotivation Program 

--- Is within six months of normal discharge and has not been recommended 

for retention; or 

--- Is not a candidate for rehabilitation 
66 – The Military Commander and the Law 

-- Although legally permissible, the Remotivation Program is strongly 

discouraged for NCOs except in cases where an E-5 has been reduced to E-4 

and thereby loses his or her NCO status 

− Commanders in the rank of major or above should strongly consider entering 

members into the Remotivation Program for a full 30 days to afford the member 

the maximum benefit of the program 

-- In cases where the Remotivation Program appears appropriate, company grade 

commanders (who are limited to imposing 7 days in the Remotivation Program) 

should normally consider having the next superior field grade commander 

impose the NJP 

-- Commanders may consider remitting a portion of the punishment in cases 

where members demonstrate a commitment to meet program objectives. 

However, the program is designed as a 30 day program and careful 

consideration should be given to remitting any portion of enrollment too early 

in the process. 

− Unit commanders maintain command authority for personnel assigned to the 

remotivation program, regardless of location 

-- The commander or first sergeant must review their member’s progress weekly 

-- The commander disciplines members who commit violations while in the 

Remotivation Program 

− The Remotivation Program is an optional program. The Installation Commander 

determines whether to support a Remotivation Program using a cost and benefit 

analysis and is responsible for developing local policies and procedures for 

operating the Remotivation Program. If a local program does not exist, commander 

could explore placing members in a regional program 

REFERENCES: 

MANUAL FOR COURTS-MARTIAL, UNITED STATES, Part V (2005) 

AFI 31-208, Remotivation Program (11 May 2001) 

AFI 51-202, Nonjudicial Punishment (7 November 2003) 
Nonjudicial Punishment Under Article 15, UCMJ - 67 

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. The following 

guidance applies to primarily to enlisted personnel. Please consult with the staff judge 

advocate regarding the quality force management consequences of NJP actions on 

officers. 

− Unfavorable Information File (UIF) entries 

-- Mandatory Entries: Where an enlisted member is punished under Article 15, a 

UIF entry is required if any portion of the executed or suspended punishment 

will not be completed within one month 

--- Members are entitled to notice that the action will be entered into a UIF. 

Such notice is included on the AF Form 3070, Record of Nonjudicial 

Punishment Proceedings. 

--- NJP actions entered into a UIF must remain there until all punishment is 

completed or remitted, including any periods of suspension 

--- 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 

--- 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. If the commander takes no action to remove the NJP action, it will 

remain in the UIF for two years. 

-- Discretionary Entries: A commander always has the discretion to enter an NJP 

action into the member's UIF, even when entry is not required (when 

punishment does not exceed 1 month) 

--- As in mandatory UIF entries, the commander must notify the member of his 

or her intent to enter an NJP action into the member's UIF 

--- The commander may remove the NJP action from the member's UIF any 

time after the punishment or suspended punishment has been completed or 
68 – The Military Commander and the Law 

remitted. If the commander takes no action, the NJP will remain in the UIF 

for one year. 

− Officer Article 15 UIF actions

-- Any record of an NJP for officers is a mandatory UIF entry 

-- Generally, such NJP actions are retained in a UIF for 2 years 

-- Early removal by the wing commander or issuing commander (whichever is 

higher in rank) is authorized if punishment has been completed 

-- 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. 

− Related Administrative Actions: In addition to NJP, commanders may take other 

appropriate administrative actions. Such actions may include but are not limited to 

-- Control Roster action 

-- Entry of the member into counseling or rehabilitation programs such as the 

ADAPT 

-- EPR comments concerning the member's underlying misconduct 

-- Administrative discharge (in serious cases) 

-- Removal from the Personnel Reliability Program, withholding a security 

clearance, or withholding access to sensitive materials; and 

-- Readjustment of good conduct time, in cases where the member is in 

confinement 

− NJP may also adversely affect promotion, reenlistment, and assignment eligibility 

− Officer and Senior NCO Promotion Selection Records

-- In cases involving officers and senior NCOs, commanders who impose NJP 

must also decide whether to include the Article 15 in the member's promotion 

selection record 

-- The imposing commander’s decision to file the Article 15 in a selection record 

is subject to review by the next senior Air Force commander, unless the 

GCMCA imposed the punishment 
Nonjudicial Punishment Under Article 15, UCMJ - 69 

-- Article 15s placed in a senior NCO’s promotion selection record remain there 

for two years or until the member meets the next senior NCO evaluation board 

-- Article 15s placed in an officer’s promotion selection record (for lieutenant 

colonels and below) are generally kept in the record until the officer meets one 

IPZ or APZ promotion board, and an appeal for removal has been approved 

REFERENCES: 

AFI 36-2406, Officer and Enlisted Evaluation Systems (15 April 2005) 

AFI 36-2608, Military Personnel Records System (14 May 2003) 

AFI 36-2907, Unfavorable Information File (UIF) Program (17 June 2005) 

AFI 51-202, Nonjudicial Punishment (7 November 2003) 

Administrative Separation from the Air Force - 71 

CHAPTER FOUR: 

ADMINISTRATIVE SEPARATION FROM

THE AIR FORCE 

Involuntary Separation of Enlisted Members: General Considerations ......................72 

Involuntary Separation of Enlisted Members: Procedures ..........................................75 

Involuntary Separation of Enlisted Members: Reasons For Discharge.......................80 

Involuntary Separation of Enlisted Members: Probation and Rehabilitation..............88 

Voluntary Separation of Enlisted Members Prior to Expiration of Term of Service ..92 

Officer Separations ......................................................................................................94 

Administrative Separation of Reservists ...................................................................100 

Loss of Veterans’ Benefits.........................................................................................102 
72 – The Military Commander and the Law 

INVOLUNTARY SEPARATION OF ENLISTED MEMBERS: 

GENERAL CONSIDERATIONS

Commanders and supervisors must identify enlisted members who show likelihood for 

early separation and make reasonable efforts, to the extent possible, 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. 

− Prior to processing a member for discharge for parenthood; conditions that interfere 

with military service; entry level performance and conduct; unsatisfactory 

performance; minor disciplinary infractions and 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 Uniform Code of Military Justice (UCMJ), change in duty assignment, 

demotion, additional training, and retraining 

-- It is extremely important to properly document rehabilitative efforts in 

accordance with relevant AFIs and keep copies of these documents 

-- It is also important that immediate supervisors are kept in the loop and properly 

document rehabilitative efforts in accordance with relevant AFIs and keep 

copies of the documents 

− The acts or conditions on which discharge is based must have occurred in the 

current enlistment, except in 

-- Cases involving homosexual conduct, 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 
Administrative Separation from the Air Force - 73 

− The service of a member administratively separated may be characterized as 

honorable, general (under honorable conditions), or under other than honorable 

conditions 

-- 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 

-- Under other than honorable conditions (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; and 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 

− Separation without service characterization. Members in entry level status (the first 

180 days of active military service) will receive an entry level separation without 

service characterization, unless: 

-- A service characterization of UOTHC is authorized and warranted, or 

-- The Secretary of the Air Force determines that characterization as honorable is 

clearly warranted by unusual circumstances of personal conduct and 

performance 

− A dishonorable discharge and a bad conduct discharge are punitive discharges and 

are authorized only as a result of a court-martial sentence 

− A commander should not use administrative discharge as a substitute for 

disciplinary action 

− A commander must initiate discharge processing if the reason for discharge is 

homosexual conduct unless the member engaged in the conduct to avoid or 

terminate service and separation would not be in the best interest of the Air Force 

− 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, 

-- Civil court conviction for an offense for which a punitive discharge and 

confinement for one year or more would be authorized under the UCMJ, or 
74 – The Military Commander and the Law 

-- Drug abuse. 

− 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 4 

poor fitness assessments in a 24-month period 

− A member recommended for discharge must be offered a hearing by an 

administrative discharge board if any one of the following conditions applies 

-- The member is a noncommissioned officer at the time discharge processing 

starts 

-- The member has six years or more total active and inactive service, including 

delayed enlistment time, at the time discharge processing starts 

-- The commander recommends a UOTHC service characterization 

-- The reason for discharge is homosexual conduct 

-- The reason for discharge is in the interest of national security (ensure 

appropriate clearance to proceed) 

-- The member is a commissioned or warrant officer of the USAFR 

− All other members may be processed for discharge by notification procedure 

− Do not delay processing of administrative discharge cases solely because the 

member is also in the Disability Evaluation System. Continue processing the 

administrative discharge case to approval, but not execution. The approved but 

unexecuted administrative discharge file must be forwarded to AFPC/DPPRS 

(Separations Branch). See AFI 36-3208, Administrative Separation of Airmen, 

Section 6E-Dual Action Processing and AFI 36-3212, Physical Evaluation for 

Retention, Retirement, and Separation. Delaying action on the administrative 

discharge case for disability processing will likely result in substantial delay before 

ultimate disposition of the two matters by SAF/PC.

REFERENCE: 

AFI 10-248, Fitness Program (7 July 2005) 

AFI 36-3208, Administrative Separation of Airmen (9 July 2004) 
Administrative Separation from the Air Force - 75 

INVOLUNTARY SEPARATION OF ENLISTED MEMBERS:

PROCEDURES

Enlisted members may be involuntarily separated through two different processes. 

Most cases are processed using notification procedures. However, if a member is 

entitled to have his or her case heard by an administrative discharge board, board 

procedures are used. Before initiating involuntary separation of a member, 

commanders must consult with the servicing staff judge advocate (SJA) and military 

personnel flight. 

BOARD ENTITLEMENT

− A member recommended for discharge must be offered a hearing by an 

administrative discharge board if one of the following conditions applies 

-- The member is a noncommissioned officer at the time discharge processing 

starts 

-- The member has six years or more total active and inactive service, including 

delayed enlistment time, at the time discharge processing starts 

-- The commander recommends a UOTHC characterization 

-- The reason for discharge is homosexual conduct 

-- Discharge in the interest of national security is recommended (ensure 

appropriate clearance to proceed) 

-- The member is a commissioned or warrant officer of the USAFR 

PREPROCESSING CONSIDERATIONS

− Before initiating discharge, a commander must consider all the factors that make 

the member subject to discharge, including 

-- The seriousness of the 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 
76 – The Military Commander and the Law 

-- 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, which must include, but is 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 

--- Past contributions to the Air Force 

--- Duty assignments and EPRs 

--- Awards, decorations, and letters of commendation 

--- The effectiveness of preprocessing rehabilitation (when required) 

NOTIFICATION PROCEDURES

− 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. 

− 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 

− If there is sufficient documentation (evidence) supporting a basis for discharge, the 

commander serves a notification memorandum on the member (AFI 36-3208, 

Figure 6.1 or 6.2) 

− The member immediately signs a receipt of notification memorandum (AFI 36-

3208, Figure 6.3) 
Administrative Separation from the Air Force - 77 

− After receiving the notification memorandum, the member has three duty days to 

prepare a response (AFI 36-3208, Figure 6.4) 

− 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 

special court-martial convening authority (SPCMCA), who is usually the wing 

commander (AFI 36-3208, Figure 6.5) 

− The servicing SJA prepares a legal review of the package and forwards the package 

to the SPCMCA if the package is legally sufficient 

− The SPCMCA reviews the package and the SJA’s legal review 

-- If the SPCMCA is also the separation authority, the SPCMCA determines if 

there is a basis for discharge, if the member should be discharged, how to 

characterize the member's service if the member should be discharged; and 

whether to offer P&R (if available) if the member should be discharged 

-- If the SPCMCA is not the separation authority, the SPCMCA will forward the 

package to the general court-martial convening authority (GCMCA), who is 

usually the NAF commander, with a recommendation concerning if there is a 

basis for discharge, if the member should be discharged, how to characterize the 

member's service if the member should be discharged; and whether to offer 

P&R (if available) if the member should be discharged 

BOARD HEARING PROCEDURES

− 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. 

− 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 

− If there is sufficient documentation (evidence) supporting a basis for discharge, the 

commander serves a notification memorandum on the member (AFI 36-3208, 

Figure 6.6) 

− The member immediately signs a receipt of notification memorandum (AFI 36-

3208, Figure 6.7) 
78 – The Military Commander and the Law 

− After receiving the notification memorandum, the member has seven duty days to: 

-- Request a board hearing or waive his or her right to a board hearing 

unconditionally (AFI 36-3208, Figure 6.8), or 

-- Waive the board hearing contingent upon receiving a specific type of discharge, 

which is called a conditional waiver (AFI 36-3208, Figure 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, Figure 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 

− The administrative board convenes, the board considers all the evidence, and the 

board makes 

-- Findings of fact as to whether each allegation set out in the notification 

memorandum is supported by a preponderance of the evidence (more likely 

than not) 

-- A separate finding with regard to each allegation set out in the notification 

memorandum 

-- Findings as to whether a basis for discharge exists 

-- A recommendation to discharge or retain 

-- A recommendation concerning the 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 if the package is legally sufficient 

− 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 

− Members with more than 16 but less than 20 years service are entitled to special 

probation consideration (lengthy service consideration) upon request and may not 

be separated before forwarding to HQ AFMPC/DPMARS2 for review 
Administrative Separation from the Air Force - 79 

REFERENCE: 

AFI 36-3208, Administrative Separation of Airmen (9 July 2004) 
80 – 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 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 ten 

broad reasons for discharge follows below. 

CONVENIENCE OF THE GOVERNMENT

− Discharge is appropriate when discharge 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 

-- Conditions that interfere with military service, which include 

--- Enuresis and sleepwalking 

--- Dyslexia, severe nightmares, stammering/stuttering, incapacitating fear of 

flying, air sickness, and claustrophobia. The condition must have an 

adverse effect on assignment or duty performance. 

--- Mental disorders – the condition: 

---- Must be supported in writing by a report of evaluation by a 

psychiatrist or clinical psychologist that confirms a diagnosis of a 

disorder contained in the Diagnostic and Statistical Manual of 

Medical Disorders (DSM-IV); 

---- 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. 
Administrative Separation from the Air Force - 81 

--- Transsexualism or gender identity disorder of adolescence or adulthood, 

nontranssexual type (GIDAANT). The condition must be supported by a 

report of evaluation by a psychiatrist or clinical psychologist that confirms a 

diagnosis of transsexualism or GIDAANT and have an adverse effect on 

assignment or duty performance. 

− 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 

− Before recommending discharge, commanders must be sure 

-- Preprocessing rehabilitation requirements in AFI 36-3208, paragraph 5.2, have 

been met 

-- They have complied with all requirements of the paragraph authorizing 

discharge 

-- Circumstances do not warrant discharge for cause 

DEFECTIVE ENLISTMENTS

− Enlistment of minors: a person under 17 years of age is barred by law from 

enlisting 

− Void enlistments: 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 enlistment: involves deliberate deception on the part of the enlistee 

− A commander must initiate discharge or seek a waiver of discharge for 

erroneous/fraudulent enlistments 

-- Erroneous/fraudulent enlistments concerning alienage cannot be waived 

-- If the commander has knowledge of an erroneous or fraudulent enlistment 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 authority are listed in AFI 

36-3208, Table 5.4 
82 – The Military Commander and the Law 

− Members approved for discharge are not eligible for probation and rehabilitation 

ENTRY LEVEL PERFORMANCE OR CONDUCT

− 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 when separation for the other reason is 

authorized and warranted 

− Before processing a member for discharge for 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 described as entry level separation (ELS) 

− Members approved for discharge for entry level performance or conduct are not 

eligible for probation and rehabilitation 

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, or 

--- Failure to demonstrate the qualities of leadership required by the member's 

grade. 

-- Failure to maintain standards of dress and personal appearance (other than 

fitness standards) or military deportment 
Administrative Separation from the Air Force - 83 

-- Failure to progress in on-the-job training 

-- Irresponsibility in the management of personal finances 

-- Unsanitary habits 

-- Failure in the fitness program 

− 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 probation and 

rehabilitation 

DRUG OR ALCOHOL ABUSE REHABILITATION FAILURE

− Members are subject to discharge for failure in drug or alcohol abuse rehabilitation 

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 probation and rehabilitation 

HOMOSEXUAL CONDUCT

− Homosexual orientation is not a bar to continued service unless manifested by 

homosexual conduct 

− Homosexual conduct is grounds for separation from military service 

− A member of the armed services shall be separated if the member engages in 

homosexual conduct, which includes 

-- A homosexual act: 
84 – The Military Commander and the Law 

--- Bodily contact, actively undertaken or passively permitted, between 

members of the same sex for the purpose of satisfying sexual desires 

--- Bodily contact that a reasonable person would understand to demonstrate a 

propensity or intent to engage in homosexual acts 

-- A homosexual statement: 

--- Language or behavior that a reasonable person would believe was intended 

to convey a statement that a person engages in, attempts to engage in, or has 

the propensity to engage in homosexual acts 

--- Includes statements such as "I am homosexual," "I am gay," "I am lesbian," 

or "I have a homosexual orientation" 

--- A statement by a member that demonstrates a propensity or intent to engage 

in homosexual acts is grounds for separation, not because it reflects on the 

member’s sexual orientation, but because it indicates a likelihood the 

member engages in or will engage in homosexual acts 

--- The member may rebut the presumption of the statement by offering 

evidence demonstrating he or she does not engage in, attempt to engage in, 

have a propensity to engage in, or intend to engage in homosexual acts 

-- Homosexual marriage or attempted homosexual marriage 

− Only a commander in the member’s chain is authorized to initiate a fact-finding 

inquiry involving homosexual conduct. A commander initiating a fact-finding 

inquiry into homosexual conduct must comply with guidelines set forth in AFI 36-

3208, Attachment 4. 

− A commander must initiate discharge when a member has engaged in homosexual 

conduct unless the member engaged in the conduct to avoid or terminate service 

and separation would not be in the best interest of the Air Force 

− Ordinarily, service is characterized as honorable or general (under honorable 

conditions), but 

-- Discharge may be described as entry level separation (ELS) if applicable, and 

an under other than honorable conditions (UOTHC) characterization is not 

warranted 

-- A UOTHC is authorized if aggravating circumstances are present 

− Members approved for discharge are not eligible for probation and rehabilitation 
Administrative Separation from the Air Force - 85 

− Consult the servicing staff judge advocate regarding recoupment issues 

MISCONDUCT

− Unacceptable conduct at any time adversely affects military duty and may be a 

proper basis for discharge 

− UOTHC is ordinarily the appropriate service characterization for cases involving 

misconduct, but characterization may be honorable, general or entry level 

separation in appropriate cases 

-- The general court-martial convening authority (usually the NAF commander) 

will normally approve separation for misconduct with a service characterization 

of honorable or UOTHC 

-- The special court-martial convening authority (usually the wing commander) 

will approve recommendations for retention, separation with a general service 

characterization, or entry level separation 

− Types of misconduct include: 

-- Minor disciplinary infractions: Includes infractions during the current 

enlistment resulting in counselings, 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 probation and 

rehabilitation 

-- Pattern of misconduct: Includes misconduct more serious than that consisting of 

minor disciplinary infractions and involving (1) discreditable involvement with 

military/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 probation and 

rehabilitation 
86 – The Military Commander and the Law 

-- Conviction by civil authorities: 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 six 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 

--- 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 probation and 

rehabilitation 

-- Commission of a serious offense: Includes offenses for which a punitive 

discharge would be authorized under the UCMJ. Members approved for 

discharge are eligible for probation and rehabilitation. 

-- Noncompliance with “safe sex” order. Having human immunodeficiency virus 

(HIV) and not complying with lawfully ordered preventive medicine 

procedures. Members approved for discharge are not eligible for probation and 

rehabilitation. 

-- Drug abuse: The illegal, wrongful, or improper use, possession, sale, transfer, 

or introduction onto a military installation of any drug 

--- The term “drug” includes anabolic and androgenic steroids, and any 

intoxicating substances, other than alcohol, that are inhaled, injected, 

consumed or introduced into the body for purposes of altering mood or 

function 

--- The term “drug abuse” includes improper use of prescription medications 

--- Commanders must act promptly when information indicates drug abuse and 

initiate discharge or seek a waiver of the discharge 

--- A member found to have abused drugs will be discharged unless the 

member meets all seven of the retention criteria in AFI 36-3208, paragraph 

5.55.2.1 

--- The member has the burden of proving he or she meets all seven retention 

criteria 
Administrative Separation from the Air Force - 87 

--- Members approved for discharge are not eligible for probation and 

rehabilitation 

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, paragraphs 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 probation and rehabilitation 

FAILURE IN PRISONER RETRAINING/REHABILITATION

− Applies to members in correction/rehabilitation programs 

− Service is ordinarily characterized as general 

FAILURE IN THE FITNESS PROGRAM

− A member who does not meet fitness standards as set out in AFI 10-248 may be 

discharged when the failure is the result of a cause in the member’s control. 

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 probation and rehabilitation 

REFERENCES:

AFI 10-248, Fitness Program (7 July 2005) 

AFI 36-3208, Administrative Separation of Airmen (9 July 2004) 
88 – The Military Commander and the Law 

INVOLUNTARY SEPARATION OF ENLISTED MEMBERS:

PROBATION AND REHABILITATION

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. 

− 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; and 

-- Whose retention on a probationary status is consistent with the maintenance of 

good order and discipline. 

− 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 

-- Entry level performance or conduct 

-- Homosexual conduct 

-- In the interest of national security 

-- Drug abuse 

-- In lieu of trial by court-martial 
Administrative Separation from the Air Force - 89 

− 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 the 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 or her decision. 

− 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 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 

the circumstances of the case warrant 

− If the decision is made to offer a member P&R, the commander must 

-- Give the member a letter with information about the program (AFI 36-3208, 

Figure 7.2) 

-- Counsel the member, emphasizing 

--- The importance of an honorable service characterization 

--- Difficulties in civilian life which the approved discharge might cause 

--- The very remote chance that the type of discharge, once executed, would be 

changed 

--- The fact that an offer of P&R does not excuse the member’s conduct 

--- The member can only prevent execution of the discharge by good conduct 

and duty performance 

--- The commander will be the judge of performance and conduct during the 

period of P&R 
90 – The Military Commander and the Law 

--- The offer of P&R is not an attempt at involuntary retention 

-- Find out whether the member has enough retainability to complete P&R, and if 

not, try to get a voluntary request for extension 

-- Require members who accept P&R to sign statements of understanding and 

acceptance of the terms of probation 

-- Ensure the terms of probation are set out in a letter from the separation 

authority and countersign the letter (AFI 36-3208, Figure 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. 

-- Ensure the statement and the letter from the separation authority are returned to 

the separation authority 

− 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 or her grade, skill 

level, and experience 

-- An EPR is prepared every 90 days 

-- Promotion consideration is according to AFI 36-2502 

-- 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 

− If a member successfully completes rehabilitation: 

-- The approved discharge is automatically and permanently canceled; 

-- Separation at ETS will result in an honorable service characterization; 
Administrative Separation from the Air Force - 91 

-- Future failure to maintain standards may be the basis for new discharge 

proceedings; and 

-- 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 basis for denial of reenlistment. 

− 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; and 

-- Extending the probationary period (original period plus extension may not 

exceed one year) where member has made progress but the commander is not 

sure rehabilitation is complete. 

− If a decision is made to initiate vacation (termination) of the suspension, the 

commander notifies the member by a letter, which gives: 

-- The reason for the action; 

-- The name, address and telephone number of military legal counsel (usually the 

ADC); 

-- Instruction that the member may secure civilian counsel at his or her own 

expense; and 

-- Instruction to reply within seven workdays with a rebuttal or a waiver of the 

right to rebut. 

REFERENCES: 

AFI 36-2502, Airman Promotion Program (6 August 2002) 

AFI 36-2606, Reenlistment in the United States Air Force (21 November 2001) 

AFI 36-3208, Administrative Separation of Airmen (9 July 2004) 
92 – The Military Commander and the Law 

VOLUNTARY SEPARATION OF ENLISTED MEMBERS PRIOR TO 

EXPIRATION OF TERM OF SERVICE

There are instances when the voluntary separation of an enlisted member prior to 

expiration of term of service (PETS) benefits the member and the Air Force. An 

immediate commander’s primary role is to recommend approval or disapproval of the 

action. If recommending disapproval, the commander must provide reasons for 

recommending disapproval of the package. Reasons for separation PETS are discussed 

below. 

− Convenience of the government: Enlisted members may request separation for the 

following 

-- Entering an officer training program 

-- Early release to further education 

-- Training at an accredited school for medical education as a physician, dentist, 

osteopath, veterinarian, optometrist, or clinical psychologist 

-- Elimination from Officer Training School (OTS) if the member enlisted 

specifically for OTS 

-- Nonfulfillment of enlistment or reenlistment agreement by the Air Force 

-- Becoming a sole surviving son or daughter after enlistment 

-- Early release from extension of service 

-- Acceptance of public office 

-- Conscientious objection 

-- Pregnancy or childbirth 

-- Early release for Christmas, if the date of separation falls on or after 9 

December and before 8 January the following year 

-- Medal of Honor recipient 

-- Other situations when early separation is in the best interests of the Air Force 

− Dependency or hardship: Enlisted members may request discharge when genuine 

dependency or undue hardship exists 
Administrative Separation from the Air Force - 93 

-- Undue hardship does not necessarily exist because of altered present or 

expected income, the family is separated, or the family suffers from the 

inconveniences usually incident to military service 

-- If all of the following factors are present, a basis for discharge may exist 

-- The dependency or hardship is not temporary 

-- Conditions have arisen or have been aggravated to an excessive degree since 

the member entered active duty 

-- The member has made every reasonable effort to remedy the situation 

-- Separation will eliminate or materially alleviate the conditions 

-- There are no means of alleviation available other than separation 

REFERENCE: 

AFI 36-3208, Administrative Separation of Airmen (9 July 2004) 
94 – The Military Commander and the Law 

OFFICER SEPARATIONS

DEFINITIONS

− Nonprobationary officer: 

-- Regular officer with five or more years of active commissioned service as 

determined by the officer’s total active federal commissioned service date, or 

-- Reserve officer with five 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, Chapter 2, Section A, for a variety of reasons, which include 

-- Hardship 

-- Pregnancy 

-- Conscientious objector status 

-- Medal of Honor recipient 

-- Other miscellaneous reasons 

− Voluntary separations are subject to approval by the Secretary of the Air Force 

(SecAF); 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 
Administrative Separation from the Air Force - 95 

-- Defaulted with respect to public property or funds 

-- Has been sentenced by a court-martial to dismissal 

-- Is being considered for 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) 

− Characterization of service is honorable 

INVOLUNTARY SEPARATIONS NOT “FOR CAUSE” SEPARATIONS

− Officers may be separated involuntarily under AFI 36-3207, Chapter 3, Section 3B, 

for various reasons that are not for cause 

− Many involuntary separations are required by law, e.g., reserve officers who reach 

age limit, nonselection 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, 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 

ADMINISTRATIVE DISCHARGE FOR CAUSE

− Grounds for discharge for cause are found in AFI 36-3206, Chapter 2 (substandard 

performance of duty) and Chapter 3 (misconduct, moral or professional dereliction, 

homosexual conduct, or in the interest of national security) 

− Substandard Performance of Duty

-- Restricted to an honorable or general (under honorable conditions) 

characterization 

-- Includes very broad categories subjecting an officer to separation, including 

--- Failure to show acceptable qualities of leadership or proficiency 
96 – The Military Commander and the Law 

--- Failure to achieve acceptable standards of proficiency required of an officer 

in his or her grade 

--- Failure to discharge duties equal to his or 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 10-248 

--- Failure to conform to prescribed standards of dress, physical fitness, or 

personal appearance (for cause separation under AFI 36-3206, Chapter 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 

-- 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 homosexual 

conduct and fear of flying for rated officers fall under this chapter 
Administrative Separation from the Air Force - 97 

-- Some other specific grounds for discharge, besides homosexual conduct and 

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 perversion, including lewd and lascivious acts, sodomy not of a 

homosexual nature, indecent acts with a child 

--- Sexual deviation, including transvestitism, exhibitionism, voyeurism 

--- 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), unless the officer is being 

discharged for homosexual conduct not accompanied by aggravating factors or 

drug use revealed as a result of self-identification or commander-directed 

urinalysis 

-- If an officer is being separated for reasons under this chapter, except 

homosexual conduct, and received education assistance, special pay, or bonus 

money, the officer is subject to recoupment. Special rules apply concerning 

homosexual conduct cases that may or may not make the officer subject to 

recoupment. 
98 – The Military Commander and the Law 

DISCHARGE PROCEDURES UNDER AFI 36-3206 

− The first step is for the unit commander to evaluate 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 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, the case does not involve a 

recommendation for a UOTHC service characterization, and the reason for 

discharge is not homosexual conduct, 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. 

-- Board entitled: If the officer is nonprobationary; or the officer is probationary 

and a UOTHC discharge is recommended; or the officer is probationary and the 

reason for discharge is homosexual conduct; then the SCA notifies the officer 

that the officer will be required to show cause 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 SecAF 

RESIGNATIONS IN LIEU OF FURTHER ADMINISTRATIVE DISCHARGE PROCEEDINGS

(AFI 36-3207, CHAPTER 2, SECTION 2b) 

− After the SCA notifies an officer to show cause for retention, an officer may: 

-- Submit a resignation, or 
Administrative Separation from the Air Force - 99 

-- 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 

− The officer may be entitled to separation pay 

− SecAF is the approval authority 

REFERENCES: 

AFI 10-248, Fitness Program (7 July 2005) 

AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers (9 June 

2004) 

AFI 36-3207, Separating Commissioned Officers (9 July 2004) 
100 – The Military Commander and the Law 

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. 

Table 2.1 lists all the permissible reasons for officer separations. Similarly, Table 3.1 

lists all the permissible reasons for enlisted separations. 

− 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 

-- CAT A (Unit)

--- The member’s unit commander initiates the discharge action and the 

servicing staff judge advocate (SJA) reviews the action for legal sufficiency 

--- The unit forwards the file through the wing commander to HQ 

AFRC/DPML for processing to AFRC/CC or AFRC/CV, the discharge 

authorities for CAT A reservists 

--- HQ AFRC/DPML notifies the member of the discharge recommendation by 

certified mail and gives the member the opportunity 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 supportive documentation 

-- CAT B Individual Mobilization Augmentees (IMAs)

--- If not already assigned to HQ ARPC, the member must be reassigned to HQ 

ARPC. The commander to whom a reservist is attached for training 

forwards the information to HQ ARPC/DPAD, recommending the member 

be reassigned to HQ ARPC for discharge action. 

--- HQ ARPC/DPAD notifies the member of the discharge recommendation by 

certified mail and gives the member an opportunity to respond 
Administrative Separation from the Air Force - 101 

--- The case is then forwarded to the MAJCOM reserve affairs office, and if 

that office concurs with the discharge, it forwards the file to HQ ARPC/CC, 

the discharge authority for IMAs 

--- HQ ARPC/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 ARPC will ask the unit to get 

the supportive documentation 

--- Simply reassigning a reservist to HQ ARPC for discharge without the 

supporting documentation will not result in the respondent being discharged 

− The following reservists are entitled to present their cases before an administrative 

discharge board 

-- Enlisted: If the recommended characterization of service in the letter of 

notification is under other than honorable conditions (UOTHC), the respondent 

is a noncommissioned officer, the respondent has six or more years of 

satisfactory service for retirement, or the discharge recommended is based upon 

an allegation of homosexual conduct. 

-- Officers: An officer who has completed five or more years of service as a 

commissioned officer in any of the armed forces as determined from the total 

federal commissioned service date; a probationary officer (an officer who has 

completed fewer than five 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 or when the basis for discharge is homosexual 

conduct 

REFERENCES: 

AFI 36-2115, Assignments within the Reserve Components (8 April 2005) 

AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air 

Force Reserve Members (14 April 2005) 
102 – The Military Commander and the Law 

LOSS OF VETERANS’ BENEFITS

To become eligible for veterans’ benefits, the active duty member must have been 

discharged or released under conditions other than dishonorable, which is broader in 

this context than the term as defined in Rule for Court-Martial 1003(b)(3)(B) 

− 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 

-- Homosexual acts involving aggravating circumstances or other factors affecting 

the performance of duty, including 

--- Child molestation 

--- Homosexual prostitution 

--- Homosexual acts or conduct accompanied by assault or coercion 

--- Homosexual acts or conduct taking place between service members of 

disparate rank, grade, or status when a service member has taken advantage 

of his or her superior rank, grade, or status 

− 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 
Administrative Separation from the Air Force - 103 

-- As a deserter 

-- As an alien during a period of hostilities where it is shown the member 

requested his or her release 

-- 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 period of honorable service are not 

voided by a punitive discharge or a UOTHC discharge during a subsequent 

enlistment (38 U.S.C. § 5303(a); United States v. McElroy, 40 M.J. 368, 372 

(C.M.A. 1994)). 

− 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, 6103-05 

38 C.F.R. § 3.12 

United States v. McElroy, 40 M.J. 368, 372 (C.M.A. 1994)

Criminal and Military Justice - 105 

CHAPTER FIVE: 

CRIMINALAND MILITARY JUSTICE

General

Installation Jurisdiction........................................................................................106 

Federal Magistrate Program ................................................................................109 

Court-Martial Jurisdiction Under the UCMJ.......................................................111 

A Commander’s Guide to the AFOSI .................................................................115 

Functions of the Area Defense Counsel ..............................................................123 

Military Magistrate Program ...............................................................................124 

National Security Cases.......................................................................................125 

Sexual Assault Response and Prevention............................................................127 

Air Force Victim and Witness Assistance Program ............................................135 

Transitional Compensation for Victims of Abuse ...............................................137 

Media Relations in Military Justice Matters........................................................139 

Criminal Investigations

Arrest By Civil Authorities..................................................................................144 

Advising Suspects of Rights................................................................................147 

Inspections and Searches.....................................................................................151 

Preliminary Inquiry into Reported Offenses........................................................159 

Military Justice Actions and the Inspector General.............................................160 

Court-Martial Procedures

Preparation, Preferral, and Processing of Charges ..............................................162 

Pretrial Confinement............................................................................................165 

Pretrial Restraint ..................................................................................................169 

Immunity..............................................................................................................171 

Pretrial Agreements.............................................................................................173 

Trial Format.........................................................................................................176 

Confidentiality and Privileged Communication ..................................................178 

Use of Information in the PIF & Rehabilitation Testimony at Trial ...................182 

Post-Trial Matters, Convening Authority Action, and Appeals.........................183 
106 – The Military Commander and the Law 

INSTALLATION JURISDICTION

To understand the degree of control a commander has over an Air Force installation, 

one must be familiar with the concepts of title and jurisdiction 

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. Some installations, however, 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 SJA. 

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, § 8, cl. 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, with the consent of Congress, later retrocede jurisdiction back to 

the state. 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. § 255. Check the deed to determine when the 

federal government acquired the property. 
Criminal and Military Justice - 107 

− Reservation: At the time the federal government ceded property to establish a state 

(particularly in the western U.S.), it reserved some of the land as federal property. 

In that case, 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 able to deal better 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. Art. VI, Clause 2, U.S. 

Constitution. 

-- 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. 

-- Proprietary Jurisdiction: In this case, the U.S. is like any other party who has 

only a possessory interest in the property it occupies. The U.S. 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 

(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. Greer v. Spock, 424 U.S. 828 (1976). 
108 – The Military Commander and the Law 

REFERENCE: 

U.S. CONST. art. I, § 8, cl. 17 

U.S. CONST. art. VI, cl.2 

40 U.S.C. § 255 

Greer v. Spock, 424 U.S. 828 (1976) 

AFI 32-9001, Acquisition of Real Property (27 July 1994) 
Criminal and Military Justice - 109 

FEDERAL MAGISTRATE PROGRAM

The federal magistrate program provides an additional means of enforcing discipline 

on the base. 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. The 

commander has the full range of administrative sanctions, as well as criminal sanctions 

under the UCMJ, available when dealing with misconduct by a military member. The 

options are more limited when dealing with a civilian offender. 

COMMANDER RESPONSIBILITIES AND OPTIONS

− Civilian employees 

-- Administrative sanctions run the gamut from administrative counseling and 

reprimands to removal. AFI 36-704, Discipline and Adverse Actions.

-- A civilian employee may also be subject to any other administrative or criminal 

sanctions discussed below. However, there may be some restrictions. 

− Any civilian may be subject to administrative sanctions 

-- The installation commander may suspend or revoke privileges, such as 

--- Commercial solicitation 

--- Driving on the installation 

--- Base exchange and commissary use 

-- For misconduct, the commander may terminate entitlement to military family 

housing. Must give 30 days written notice and the Government pays for the 

move. 

-- The commander may bar any civilian from the installation. Must allow access 

for medical care for dependent family members and retirees. 

− Criminal actions committed by civilians on an installation with federal jurisdiction 

may be handled in federal court, including magistrate court 

-- Any federal statute that does not rely on territorial jurisdiction may result in 

prosecution regardless of the status of the base, e.g., counterfeiting, espionage, 

sabotage, bribery of federal officers 
110 – The Military Commander and the Law 

-- If the base has only proprietary jurisdiction, federal statutes that rely on 

territorial jurisdiction may not be enforced in federal court. They must be 

handled in state court. 

-- If the base has exclusive federal jurisdiction, the state may not prosecute for 

offenses committed on the installation. Federal courts provide the only remedy. 

-- If the offender violated state law, a violation of the Assimilative Crimes Act, 18 

U.S.C. § 13, may be alleged 

--- This potentially makes violating a state statute a federal offense 

--- This is available where the conduct does not otherwise violate a federal 

statute 

HOW MAGISTRATE COURT WORKS

− Federal magistrate court is an alternative to prosecution in federal district court 

− Prosecution in magistrate court requires the consent of the defendant 

− Magistrates normally try misdemeanor offenses (an offense for which the 

authorized penalty does not include more than 1 year imprisonment), and may try 

juvenile offenders 

− Air Force judge advocates, acting as Special Assistant U.S. Attorneys, may 

prosecute cases in magistrate court under the provisions of AFI 51-905 

− The installation commander decides whether to refer the case to federal court after 

finding administrative steps inadequate 

− However, if safety, discipline, or other considerations warrant, a commander may 

make a blanket determination that administrative disposition of certain offenses 

committed by civilians on base is not appropriate and that all such offenses should 

be referred to a U.S. magistrate judge for trial 

REFERENCES: 

18 U.S.C. § 13, Assimilative Crimes Act 

AFI 36-703, Civilian Conduct and Responsibility (1 August 1999) 

AFI 36-704, Discipline and Adverse Actions (22 July 1994) 

AFI 51-905, Use of Magistrate Judges for Trial of Misdemeanors Committed by 

Civilians (1 June 1998) 
Criminal and Military Justice - 111 

COURT-MARTIAL JURISDICTION UNDER THE UCMJ 

TYPES OF JURISDICTION

– Military Offenses: Courts-martial have exclusive power to hear and decide “purely 

military offenses.” Rule for Courts-Martial (R.C.M.) 201(d)(1). 

– Nonmilitary Offenses: Crimes that violate both the UCMJ and local criminal law 

may be tried by a court-martial, a civilian court, or both. R.C.M. 201(d)(2). 

-- A military member may not be tried for the same misconduct by both a courtmartial and another federal court. U.S. CONST. amend. V; R.C.M. 

907(b)(2)(C). 

-- A military member may be tried for the same misconduct by both court-martial 

and state court. However, if a military member was tried by a state court, 

regardless of the outcome, as a matter of policy, Secretary of the Air Force 

approval is required before proceeding with a court-martial. AFI 51-201, para. 

2.5. 

-- Host nation treaties govern exercise of jurisdiction over military members 

overseas 

JURISDICTION OVER THE OFFENSE (RCM 203) 

– The Supreme Court has held that jurisdiction in a court-martial is based solely on 

the status of the accused as a member of the armed forces. Essentially, if the 

member is on active duty, the service has jurisdiction. Solorio v. United States, 483 

U.S. 435 (1987). 

JURISDICTION OVER THE PERSON (RCM 202) 

– General Rule: Article 3(a), UCMJ, 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 

– Fraudulent Enlistment: Article 2(c), UCMJ, 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 Secretary of the Air Force if the person: 

--- Submitted voluntarily to military authority; 
112 – The Military Commander and the Law 

--- 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. 

– Reservists: 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 Training (AT)). For 

guidance in this area, see R.C.M. 204(b)(1); AFI 51-201, para. 2.8, “Exercise of 

Jurisdiction over Air Force Reserve and 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 courtmartial 

-- The Air Force has placed certain restrictions on involuntary recall of reserve 

members 

-- An Air Force Reserve member may be ordered to active duty by an active 

component general court-martial convening authority. AFI 51-201, para. 2.8.4. 

-- 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 the Secretary of the Air Force. The staff judge advocate 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. 2.8.5. 

-- Air Force Reserve members will not be involuntarily called to active duty 

solely for nonjudicial punishment or summary court-martial, although 

MAJCOM commanders may grant waivers to this restriction in appropriate 

cases. AFI 51-201, para. 2.8.3. 

-- When determining whether the commander has UCMJ jurisdiction over the 

member, the commander must ask two questions: 

--- 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 (i.e. special tour, annual tour) is subject to 

the UCMJ from the beginning to the end of the tour, 24 hours a day 
Criminal and Military Justice - 113 

---- Generally, a member performing Inactive Duty Training (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 for wrongdoing by using a variety of adverse 

administrative actions such as letters of counseling, admonishment, 

reprimand, etc. 

--- Will the member be in military status at the time the commander will 

impose punishment, such as an Article 15 punishment? 

---- Commanders can always ask whether the member will voluntarily 

submit to UCMJ jurisdiction by extending his or her tour or 

IDT/UTA 

---- Commanders can wait until the member’s next scheduled training to 

offer 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 National Guard is subject to courtmartial jurisdiction only when in Federal service. UCMJ art. 2(a)(3), 10 U.S.C. §§ 

12301, 12401 (2005). 

-- ANG members serve in one of two duty capacities: state duty status (also 

referred to as “Title 32” status) and federal duty status (also referred to as “Title 

10” status). When ANG members are serving in their state duty (or Title 32) 

status 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 that we have jurisdiction over that person 

– Retirees: Court-martial jurisdiction continues over retired Regular Air Force 

personnel entitled to pay. UCMJ art. 2(a)(4) and (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 
114 – The Military Commander and the Law 

-- Commanders should not prefer charges without Secretary of the Air Force 

approval unless the statute of limitations is about to run. The staff judge 

advocate will coordinate approval, as needed, to recall a retired member for 

court-martial. AFI 51-201, para. 2.9. 

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 under Article 3, UCMJ 

-- 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 

REFERENCES: 

U.S. CONST. amend. V 

10 U.S.C § 12301, 12401 

UCMJ arts. 2 & 3 

Rule for Courts-Martial 201-204 (2005) 

AFI 36-3209, Separation Procedures for Air Force National Guard and Air Force 

Reserve Members (14 April 2005) 

AFI 51-201, Administration of Military Justice (26 November 2003) 

Solorio v. United States, 483 U.S. 435 (1987) 

United States v. Wilson, 53 M.J. 327 (C.A.A.F. 2000) 
Criminal and Military Justice - 115 

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 

ORGANIZATION

– Established following WWII to preclude “self-investigation” 

-- Patterned after the Federal Bureau of Investigations 

-- Removed from command channels as an independent centralized organization 

to ensure unbiased and factual investigations 

– Became operational 1 Aug 48, accountable to Secretary of the Air Force and now 

organized under SAF/IG 

– 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 

– A combat-ready military organization that provides the Air Force a wartime 

capability to conduct, in hostile and uncertain environments, counter-threat 

operations to find, fix, track, and neutralize enemy threats 

-- To provide complete services to assist commanders in carrying out the 

responsibilities of command 

-- Since 1972, AFOSI’s CONUS personnel security investigation function 

transferred to DoD Defense Security Service (DSS). AFOSI still assists DSS 

with overseas needs. 

AFOSI AND COMMAND

– Requesting AFOSI investigative service 

-- AFI 71-101V1, AFMD 39 and AFPD 71-1 

--- Only SECAF may direct AFOSI to delay, suspend or terminate an 

investigation 

--- Investigations initiated on authority of AFOSI/CC, as delegated to 

subordinate AFOSI commanders and special agents in charge 
116 – The Military Commander and the Law 

--- AFOSI will brief Air Force commanders on progress of investigations 

affecting command 

--- Direct contact with commanders is essential for mission, e.g., search 

authorizations 

--- Any Air Force commander responsible for security, discipline, or law 

enforcement may request investigative support 

--- 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 

-- AFI 71-101V1, Attachment 2 (AFOSI and SF investigative responsibilities) 

--- Generally, AFOSI will only investigate major offenses 

--- Minor offenses are normally handled by Security Forces, Office of 

Investigations 

--- Tailoring is permissible to make best use of investigative resources; 

considering technical expertise, investigative capability and available 

manpower 

– Mutual support requirements 

-- Command Role

--- AFOSI requests and the appropriate commander or magistrate issues search 

and seizure authorizations based on probable cause requirements. The SJA 

should be involved in every case involving a probable cause determination. 

--- Operations Security (OPSEC) of AFOSI Investigations 

---- Knowledge of an ongoing AFOSI investigation by unnecessary 

parties may jeopardize operations and compromise efforts to 

neutralize criminal or counterintelligence threats 

---- The exposure of AFOSI sources/agents/witnesses and investigative 

techniques could place persons and evidence at risk 

---- OPSEC is critical; restrict 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 
Criminal and Military Justice - 117 

----- 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 

----- Merely walking through or around a crime scene can add or 

remove trace items that could hamper an investigation 

---- Security Forces are usually the first-responders who secure and 

protect the scene for AFOSI 

----- Exclude witnesses, curiosity seekers, and limit to minimum of 

authorized personnel (e.g., medical/fire department) 

----- Rank or official position alone should not justify entry 

----- Command support of AFOSI access and control of area is 

vital 

--- Protection of Agent’s Grade (AFPD 71-1 and AFI 71-101V1) 

---- The ability to carry out the mission 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 

--- Handling Complaints Against AFOSI Personnel 

---- Due to nature of duties, complaints of intimidation or harassment are 

not uncommon 

---- All should be immediately referred to the person’s immediate 

commander; all complaints will be thoroughly and expeditiously 

investigated by AFOSI 

-- 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 
118 – The Military Commander and the Law 

---- Information analyzed to determine need for individual substantive 

cases 

--- Child Abuse/Neglect 

---- Assist command in Family Advocacy Program 

---- All allegations must be reported to AFOSI, regardless of origin of 

complaint (personnel of Family Support and Child Care Centers, 

social actions, medical, etc.) 

----- AFOSI has greater access to certain records 

----- Can provide fact-finding role to assist command and staff to 

make decisions 

--- AFOSI’s Specialized Functions 

---- Single 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 

---- Information Operations and Investigations Assistance 

---- Regionally located Computer Crime Investigators serve as specialists 

in the investigation of cyber crime, 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, specialized investigative 

techniques in criminal cases, e.g., death investigations and 

sexual assaults 

---- Technical Services 

----- Process and support requests to intercept wire, oral, or 

electronic communications for law enforcement or 

counterintelligence purposes. See AFI 71-101 V1 or V4 for 

approval authorities. 
Criminal and Military Justice - 119 

---- 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 CONUS 

----- 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 

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 Agent’s authority is derived from 10 U.S.C. § 9027 

--- Specific guidelines promulgated by SECDEF and Attorney General 

-- Military Agent’s authority is derived from the Manual for Courts-Martial 

--- Limited to people 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 
120 – The Military Commander and the Law 

– Arming 

-- AFPD 71-1 authorizes agents to carry 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 

-- Base human sources of information may be overt (officials) or covert (on a 

confidential basis) 

-- AFOSI undercover agents are specially trained and sent to installation to 

perform duties 

-- 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. See M.R.E. 507. 

--- Threatened Airman Program is a personnel program; AFOSI provides threat 

validation and assessment as prelude to reassignment action 

-- Excellent investigative tool to develop valuable information about crimes 

planned/in progress 

– Agent Standards to Expect 

-- Civilian attire authorized as neat, professional appearance, unless specific 

operation otherwise dictates 

-- Must comply with Air Force standards while in uniform; impeccable ethics 

TYPES OF AFOSI REPORTS AND RELEASE OF INFORMATION

– Routinely provided to commanders and their representatives, (i.e., SJA) 

– Interim Case Reporting 

-- AFOSI may up-channel internal reporting of special interest cases where 

publicity or Congressional interest is expected 
Criminal and Military Justice - 121 

-- Informs HQ AFOSI, Air Staff, commanders and other agencies of significant 

matters affecting Air Force and DoD 

-- Separate and distinct from MAJCOM upchannel 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; Narcotics Briefs 

-- 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 USAF aircraft 

– Command reporting of actions taken 

-- IAW AFI 71-101, Vol 1, commanders are required to provide AFOSI with a 

report of action taken. This allows AFOSI to ensure command action is 

included in appropriate national level databases. 

– Release of Information 

-- “For Official Use Only” and should be treated as sensitive records covered by 

the 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-AF officials to the servicing 

AFOSI detachment 

---- 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 Reports of Investigation (ROI) prior 

to release to defense attorneys for discovery 
122 – The Military Commander and the Law 

--- Safeguard ROIs in locked file cabinets 

-- Press or news inquiries for information require close coordination between 

Public Affairs, SJA and AFOSI in all cases 

REFERENCES: 

10 U.S.C. § 9027, Civilian Special Agents of the Office of Special Investigations: 

Authority to Execute Warrants and Make Arrests 

MIL. R. EVID. 507 (2005) 

DoDD 5400.7/AF Supp, DoD Freedom of Information Act Program (24 June 2002) 

AFI 71-101V1, Special Investigations, Criminal Investigations (1 December 1999) 

AFI 71-101V4, Counterintelligence (1 August 2000) 

AFPD 71-1, Criminal Investigations and Counterintelligence (1 July 1999) 

AFMD 39, Air Force Office of Special Investigations (9 January 2006) 
Criminal and Military Justice - 123 

FUNCTIONS OF THE AREA DEFENSE COUNSEL

The Area Defense Counsel (ADC) program provides Air Force members independent 

legal representation. Airmen suspected of an offense or facing adverse administrative 

actions receive confidential legal advice from an experienced JAG outside the local 

chain of command, avoiding even an appearance of command influence or conflicts of 

interest. 

– The ADC is a certified judge advocate performing defense counsel duties in the 

following areas 

-- Counsel in courts-martial, administrative discharge actions and Article 32, 

UCMJ, investigations 

-- Counsel in Article 15 actions 

-- Counsel in interrogations 

-- Any other adverse actions in which counsel for an individual is required or 

authorized 

– All ADCs are assigned outside the local chain of command 

-- The ADC's responsibility is to vigorously and ethically represent the client 

-- The ADC is an advocate for the client, not an advisor for the command. The 

ADC Office is physically separate from the base legal office 

– If an active duty military member under any type of investigation requests legal 

advice, refer them to the ADC 

-- Civilians are not entitled to ADC representation 

-- The ADC at Air Reserve Personnel Center in Denver, Colorado will represent 

Category B members of the Air Force Reserve 

– The ADC program requires strong command and SJA support to enhance 

perception of fairness of military justice/disciplinary process 

– The ADC is available, subject to workload and client confidences, to help base 

commanders educate the base population on the military justice system and the role 

of the ADC in the process 

REFERENCES: 

AFI 51-201, Administration of Military Justice, Chapter 5 (26 November 2003) 
124 – The Military Commander and the Law 

MILITARY MAGISTRATE PROGRAM

Military magistrates may be appointed by the Special Court-Martial Convening 

Authority (SPCMA) for each installation. A military magistrate’s primary duty is to 

issue search authorizations based upon probable cause. 

− The SPCMA may appoint one or two officers, of judicial temperament, to serve as 

military magistrate for the installation 

-- AFI 51-201, para 3.1 is the authority for appointment of a military magistrate to 

authorize searches on the installation 

-- A military magistrate must ordinarily be in grade of lieutenant colonel or above, 

unless there is General Court-Martial Convening Authority (GCMCA) approval 

-- May not be a chaplain, a member of an office of a staff judge advocate having 

responsibility for that installation, security forces specialist, AFOSI agent, or 

convening authority 

-- Appointment must be in writing, specifying the installation magistrate has 

authority over 

− Once appointed, these magistrates are authorized to issue search and seizure 

authorizations based upon probable cause 

-- They may exercise this authority concurrent with installation commander 

-- Availability of installation commander is not a factor in their exercise of 

authority 

− One magistrate should be designated primary magistrate, other as the alternate 

-- The alternate should act only when the primary is absent or incapacitated 

-- Primary magistrate is not absent if in a duty status within the vicinity of the 

installation and can be reasonably contacted 

-- Action by alternate not invalid solely because primary was available 

− Each installation's staff judge advocate will brief the magistrates on their duties 

when appointed and thereafter when appropriate 

REFERENCES: 

Rule for Courts-Martial 315 (2005) 

AFI 51-201, Administration of Military Justice (26 November 2003) 
Criminal and Military Justice - 125 

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 SCI access, SIOP/ESI, HQ USAF/XO 

special access programs, research and development (R&D) special access programs 

and 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, para. 8.9. 

− Expeditious processing of such requests must be pursued to comply with speedy 

trial rules and restrictive time requirements in civilian removal cases. GOAL: 15 

days from date of initiation request to date of approval/denial by OPR. 

− Voluntary separation requests by officers (AFI 36-3207) and airmen (AFI 36-3208) 

will not be handled under these procedures unless they are in lieu of adverse action 

ACTIONS PERMITTED PENDING DECISION TO PROCEED: 

− Courts-martial: In general or special courts-martial, command may complete 

preferral of charges and an Article 32 investigation, if applicable, but cannot refer 

charges without permission to proceed. Restrictions do not apply to summary 

courts-martial. 

− 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. 

− Airman discharges: In "notification" cases, the commander may proceed 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 proceed 

through initiation of the case, obtaining the member's response, scheduling 

necessary appointments, and conducting those appointments. The convening 

authority may 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 the appropriate Air Force OPR, seeking 

authority to proceed. Commanders must not, under any circumstances, issue a 

"notice of proposed removal" until authority to proceed is obtained. 
126 – The Military Commander and the Law 

− Judge Advocate Notifications 

-- Any case with potential to be a national security case must be reported 

immediately to the Air Force Legal Operations Agency’s Military Justice 

Division (AFLOA/JAJM) by the local SJA. Such cases include 

--- Aiding the Enemy (Art. 104, UCMJ) 

--- Spying (Art. 106, UCMJ) 

--- Espionage (Art. 106a, UCMJ) 

--- Sabotage (Art. 108, UCMJ; 18 U.S.C. § 2155) 

--- Subversion (Art. 94, UCMJ) 

--- Violations of punitive instructions, regulations, or criminal statutes 

concerning classified information, or U.S. foreign relations (Art. 92, UCMJ) 

-- DoDD 5525.7 requires coordination between DoD and DoJ of the investigation 

and disposition of significant cases. Early reporting to AFLOA/JAJM is 

essential since 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, who 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. 

-- Any national security case involving court-martial, administrative discharge, or 

civilian removal action must be reported by the SJA to HQ USAF/JAA 

(General Law Division) 

− Commanders must file a Special Access Request Worksheet as part of the package 

requesting permission to proceed. Involve the unit security manager and the 

special access program manager in the collection and processing of this type of 

information. 

REFERENCES: 

MANUAL FOR COURTS-MARTIAL, UNITED STATES (2005), Appendix 3, DoDD 5525.7, 

Implementation of the Memorandum of Understanding between the Department 

of Justice and the Department of Defense Relating to the Investigation and 

Prosecution of Certain Crimes 

AFI 31-501, Personnel Security Program Management, Chapter 8 (27 January 2005) 

AFI 36-3207, Separating Commissioned Officers (9 July 2004) 

AFI 36-3208, Administrative Separation of Airmen (9 July 2004) 

AFI 51-201, Administration of Military Justice, paras. 3.3.2, 6.6.4, and 12.8 et seq., (26 

November 2003) 
Criminal and Military Justice - 127 

SEXUAL ASSAULT RESPONSE AND PREVENTION

Sexual assault is criminal conduct. It falls well short of the standards America expects 

of its men and women in uniform. 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 policy and practice is set out in Department of the Air Force Policies and 

Procedures For the Prevention of and Response to Sexual Assault, issued by the 

Secretary of the Air Force on 3 June 2005. It is in effect until replaced by an Air 

Force Policy Directive and Instruction. 

-- Compliance with the Air Force policies and procedures is mandatory 

-- Installation commanders will implement local sexual assault prevention and 

response programs. The installation Vice Commander or equivalent is 

designated as the responsible official to act for the installation commander and 

supervises the Installation Sexual Assault Response Coordinator (SARC). 

DEFINITION OF SEXUAL ASSAULT

− Intentional sexual contact, characterized by use of force, physical threat or abuse of 

authority or when the victim does not or cannot consent. Sexual assault includes 

rape, nonconsensual sodomy (oral or anal sex), indecent assault (unwanted, 

inappropriate sexual contact or fondling), or attempts to commit these acts. Sexual 

assault can occur without regard to gender or spousal relationship or age of victim. 

– This definition is for training and educational purposes only and does not affect in 

any way the definition of any offenses under the Uniform Code of Military Justice. 

Commanders are encouraged to consult with their Staff Judge Advocate for 

complete understanding of this definition in relation to the UCMJ.

INSTALLATION SEXUAL ASSAULT RESPONSE COORDINATOR (SARC) 

− Reporting directly to the installation Vice 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 
128 – The Military Commander and the Law 

− 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 

− The SARC is responsible for ensuring a victim support system that provides a 24 

hour/7 day a week sexual assault response capability for all victims within his or 

her designated area of responsibility 

− The SARC tracks the status of sexual assault cases in his or her designated area of 

responsibility and provides regular updates to the Vice Commander 

VICTIM ADVOCATE (VA) 

− Responsibilities include providing crisis intervention, referral and ongoing nonclinical 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. 

− VAs are volunteers who must possess the maturity and experience to assist in a 

very sensitive situation. Only active duty military personnel and DoD civilian 

employees selected by the SARC may serve as VAs. 

− Personnel assigned to the MTF, (OK with MG/CC approval), MEO, SF, the Office 

of the Staff Judge Advocate, or the Office of the Wing Chaplain are not eligible to 

serve as victim advocates due to the potential conflict of interest. 

− VAs do not provide counseling or other professional services to a victim. 

Appropriate agencies will provide clinical, legal, and other professional services. 

− VAs may accompany the victim, at the victim’s request, during investigative 

interviews and medical examinations. However, they and the victims that they 

accompany must be made aware that their presence could later result in them being 

called as witnesses in court-martial or administrative proceedings. 

RESPONSE TO A SEXUAL ASSAULT INCIDENT 

− Upon notification, the SARC will immediately assign a VA to the victim. To the 

extent practicable, the assigned VA should not be from the same unit as the victim. 

− The assigned VA will immediately contact the victim 

-- Unless VA assistance is declined, the VA will provide the victim accurate 

information on the sexual assault response process, including the option of 

unrestricted or restricted reporting as applicable 
Criminal and Military Justice - 129 

-- The VA will inform the victim of the availability of healthcare, including the 

option of a forensic medical examination and the collection of evidence 

-- The victim will be requested to sign a Victim Preference Statement indicating 

his or her choice of restricted or unrestricted reporting and understanding of the 

consequences of his or her decision 

− The assigned VA and the SARC will continue to monitor the case through 

disposition of the case and resolution of the victim’s health and well-being 

-- The SARC will provide updates to the victim and commanders as appropriate 

and in accordance with Air Force policy 

-- 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. 

RESTRICTED REPORTING 

− 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 

− Who may make a Restricted Report? Restricted reporting is available only to 

military personnel of the Armed Forces and the Coast Guard when attached to the 

Department of Defense 

− Who may not make a Restricted Report?

-- Members of the Reserve Component not performing Federal duty 

-- Retired members of any component 

-- Dependents 

-- Air Force civilian employees 

− Who may receive a Restricted Report?

-- Only SARCs and healthcare providers may receive restricted reports of sexual 

assault 

-- A report made to a healthcare provider under circumstances where it cannot 

reasonably be ascertained whether it is intended as a restricted report will be 
130 – The Military Commander and the Law 

treated as a restricted report until the SARC can ascertain the victim’s 

intentions 

-- Consistent with current policy, a report may also be made to a chaplain if it is 

reported or forwarded to a SARC or healthcare provider 

-- VAs may receive restricted reports from a designated victim only after they 

have been appointed by the SARC to act as the victim advocate for that 

individual 

− Only allegations of sexual assault may be made under the restricted reporting 

option 

− When the SARC receives a restricted report of a sexual assault, the victim will be 

informed of the availability of healthcare, including the option of a forensic 

medical examination and the collection of evidence 

DISCLOSURE OF A RESTRICTED REPORT 

− If an individual makes a restricted report of a sexual assault, such a report may not 

be disclosed to any law enforcement official, command authority, or other entity 

not authorized to receive restricted reports, except as provided in the following 

exceptions 

-- Command officials or law enforcement when the disclosure is authorized in 

writing by the victim 

-- Command officials or law enforcement when disclosure is necessary to prevent 

or lessen a serious and imminent threat to the health or safety of the individual 

or another 

-- Disability Retirement Boards and officials when disclosure by a healthcare 

provider is required for fitness for duty for disability retirement determinations 

-- SARC, VAs or healthcare provider when disclosure is necessary for the 

supervision of direct victim services 

-- Military or civilian courts of competent jurisdiction when disclosure is ordered 

by or required by federal or state statute 

− Healthcare providers may also convey to command any possible adverse duty 

impact related to the victim’s medical condition and prognosis in accordance with 

DoD 6025.18-R, as well as any applicable Air Force Instructions 
Criminal and Military Justice - 131 

− In the event a disclosure is made under a recognized exception to Air Force policy, 

the disclosure will be limited to that necessary to satisfy the purpose of the 

disclosure 

− In cases of an unrestricted report of a sexual assault or information concerning a 

sexual assault is otherwise known, information concerning the victim and the 

offense will only be provided to governmental entities or persons with an 

established official “need to know” 

− Unauthorized disclosure of a covered communication, improper release of medical 

information and other violations of this policy may result in action under the 

Uniform Code of Military Justice for military personnel, or other personnel or 

administrative action for all personnel, including loss of medical credentials 

NOTIFICATION TO COMMAND OF A RESTRICTED REPORT 

− Within 24 hours of receipt of a restricted report of an alleged sexual assault, the 

SARC will notify the Vice Wing Commander that a restricted report has been 

made. The SARC will provide the following information while ensuring that the 

information is not sufficient to identify the victim or incident. 

-- The incident will be characterized as recent (within the last 30 days) or not 

recent (older than 30 days) 

-- Time of occurrence (night or day) 

-- General information as to location (a dorm, parking lot, off base etc) 

-- Number of alleged assailants 

-- Number of alleged victims 

-- Nature of assault (rape, forcible sodomy, indecent assault etc) 

− Because non-identifying information under the restricted reporting option is 

intended to provide commanders with general environmental information about the 

number and types of sexual assaults on the installation and is to be used to provide 

a better understanding of incidents of sexual assault, neither commanders nor law 

enforcement officials may initiate investigations based on information provided by 

SARCs under this rule 

− Commanders, however, may use the information to enhance preventive measures, 

to enhance the education and training of their personnel, and to more closely 

scrutinize their organization’s climate and culture for contributing factors, but may 

not use the information for investigative purposes or in a manner that is likely to 

discover, disclose, or reveal the identities being protected 
132 – The Military Commander and the Law 

UNRESTRICTED REPORTING

− Any report of a sexual assault made through normal reporting channels, including 

the victim’s chain of command, law enforcement, and the AFOSI or other criminal 

investigative service is considered an unrestricted report 

− A report made to a SARC or healthcare provider where the individual does not 

elect restricted reporting, is considered an unrestricted report 

− The SARC will be notified of any unrestricted report and will assign a VA to the 

individual 

− Details of the allegation will be provided only to those personnel who have a 

legitimate need to know 

INDEPENDENT REPORTS

− Should information about a sexual assault be disclosed to command from a source 

independent of restricted reporting avenues or to law enforcement from other 

sources, and an investigation into an allegation of sexual assault is initiated, that 

report is considered an independent report 

− An official investigation may be initiated based on that independently acquired 

information 

− When the SARC or victim advocate learns that a law enforcement official has 

initiated an official investigation that is based upon independently-acquired 

information and after consulting with the law enforcement official responsible for 

the investigation, the SARC or victim advocate will notify the victim, as 

appropriate 

− 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 

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 Uniform Code of Military Justice, the Manual for 

Courts-Martial, and Air Force Instructions, commanders are responsible for 
Criminal and Military Justice - 133 

ensuring victim misconduct is addressed in a manner that is consistent and 

appropriate to the circumstances 

-- 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 

-- Commanders must also be mindful of any potential statute of limitations when 

determining whether to defer action 

-- Commanders are expected to consult with their servicing staff judge advocate 

and use the tools available to resolve any allegations 

− Administrative separation actions involving victims of sexual assaults will be 

processed as required by the applicable Air Force Instruction 

-- 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 the discharge proceeding involves a victim of sexual assault 

-- The discharge 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 

SEXUAL ASSAULT CASE DISPOSITION AUTHORITY 

− To ensure consistent and appropriate level of command attention and the full 

responses required by the nature of sexual assault cases, group commanders of Air 

Force Groups or higher will sign the commander's report of disposition setting out 

action taken in all sexual assault cases 

− Authority to dispose of cases that resulted from an allegation of sexual assault is 

withheld from squadron section commanders and is reserved to commanders of 

squadrons and above 
134 – The Military Commander and the Law 

− A commander authorized to dispose of cases involving an allegation of sexual 

assault may do so only after receiving the advice of the servicing staff judge 

advocate 

− As with any case, any disposition decision on a case involving an allegation of 

sexual assault is subject to review by superior commanders as appropriate 

COMMANDER’S 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. 

− 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 

REFERENCES: 

10 U.S.C. § 113 

DoDD 6495.01, Sexual Assault and Response (SARP) Program (6 October 2005) 

Memorandum, Under Secretary of Defense for Personnel and Readiness, Collateral 

Misconduct in Sexual Assault Cases (JTF-SAPR-001) (12 November 2004) 

Memorandum, Under Secretary of Defense for Personnel and Readiness, Increased 

Victim Support and A Better Accounting of Sexual Assault Cases (JTF-SAPR002) (22 November 2004) 
Criminal and Military Justice - 135 

AIR FORCE VICTIM AND WITNESS ASSISTANCE PROGRAM

− The objectives of the Air Force Victim and Witness Assistance Program (VWAP) 

are to 

-- Mitigate the physical, psychological, and financial hardships suffered by 

victims and witnesses of offenses investigated by U.S. Air Force authorities 

-- Foster cooperation between victims, witnesses, and the military justice system 

-- Ensure best efforts are extended to protect the rights of victims and witnesses 

− The installation commander is the local responsible official (LRO) for identifying 

victims and witnesses of crimes and providing the services required by VWAP. He 

or she normally delegate this responsibility, in writing, to the base staff judge 

advocate (SJA). 

− LRO responsibilities to crime victims 

-- 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 

-- 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 

--- You may reveal “appropriate administrative action was taken.” 

--- You may not reveal the specific action taken, i.e., 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 

-- 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 
136 – The Military Commander and the Law 

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 

− 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 

− LRO responsibilities to all witnesses 

-- Notify appropriate 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 

-- Provide victims and witnesses necessary assistance in obtaining timely payment 

of witness fees and related costs 

− Each agency (JA, SF, OSI, HC, MDG & FSC) is responsible for training personnel 

on their responsibilities under this chapter. The SJA trains commanders and first 

sergeants. 

− Each installation should prepare an information packet modeled after figure 7.2 of 

AFI 51-201 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. 

REFERENCES: 

42 U.S.C. §§ 10601-10603, Victims of Crime Act of 1984 

42 U.S.C. §§ 10607, Victims’ Rights and Restitution Act of 1990 

DoDD 1030.1, Victim and Witness Assistance (13 April 2004) 

DoD Instruction 1030.2, Victim and Witness Procedures (4 June 2004) 

AFI 51-201, Administration of Military Justice (26 November 2003) 
Criminal and Military Justice - 137 

TRANSITIONAL COMPENSATION FOR VICTIMS OF ABUSE

Federal legislation provides for transitional assistance to abused dependants 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. Applicant’s 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 Nov 93 are 

-- Separated from active duty under a court-martial sentence resulting from a 

dependant-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 

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) 

APPLICATION PROCEDURES

– Eligible dependents request transitional compensation by completing DD Form 

2698 

– 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 
138 – The Military Commander and the Law 

– The unit representative will assist the dependent with the completion of DD Form 

2698 

– The MPF commander will coordinate the package and obtain a written legal review 

from the SJA 

– The installation commander is the approval authority 

REFERENCES: 

10 U.S.C. §1059 

10 U.S.C. §1076 

38 U.S.C. §1311 

DoDI 1324.24, Transitional Compensation For Abused Dependents, 23 May 1995, 

thru Change 1, 16 January 1997 

AFI 36-3024, Transitional Compensation For Abused Dependents, 15 September 2003 
Criminal and Military Justice - 139 

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. These interests are especially 

relevant when the proceeding involves high profile cases. 

Release of information relating to criminal proceedings is subject to the Privacy Act 

(PA), Freedom of Information Act (FOIA), Victim and Witness Assistance Protection 

(VWAP) 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 SJA before releasing any information about such proceedings. 

PROVIDING INFORMATION 

− AFI 51-201, Section 12D, covers the rules for releasing information pertaining to 

criminal proceedings. It prohibits release of information that has a substantial 

likelihood of prejudicing the criminal proceeding. 

− AFI 51-201, para. 12.6.1.1, states that release of extrajudicial statements is a 

command responsibility. Obviously, the installation's SJA and its Public Affairs 

Officer (PAO) must work closely to provide informed advice to the commander. 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. The convening authority responsible for the criminal proceeding 

makes the ultimate decision about release of extrajudicial statements relating to that 

criminal proceeding. MAJCOM (or equivalent) commanders may withhold release 

authority from subordinate commanders. In high interest cases, the SJA and the 

PAO should consult with their MAJCOM representatives. 

− 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 

− 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. 
140 – The Military Commander and the Law 

− 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 expected 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. 

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 

VWAP) 

-- General information to educate or inform the public concerning military law 

and the military justice system 
Criminal and Military Justice - 141 

-- 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 Air Force or the military justice system from the 

substantial, undue prejudicial effect of recent publicity initiated by some person 

or entity other than the Air Force. Such statements shall be limited to that 

necessary to correct misinformation or to mitigate substantial undue prejudicial 

information already available to the public. This can include, but is not limited 

to, information that would have been available to a spectator at an open Article 

32 investigation or an open session of a court-martial. 

− The following extrajudicial statements may be made only after preferral of charges, 

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, along with a mandatory 

statement explaining that the charge is merely an accusation and that the 

accused 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, seek to avoid release of the name of 

victims of sex offenses, the names of children or the identity of any victim 
142 – The Military Commander and the Law 

when release would be contrary to the desire of the victim or harmful to the 

victim 

-- The identities of court members and the military judge. Do not volunteer the 

identities of the court members or the military judge in material prepared for 

publication. This information may be released, if requested, after the court 

members or the military judge have been identified in the court-martial 

proceeding, if the convening authority's SJA determines release would not 

prejudice the accused’s rights or violate the members’ or the military judge's 

privacy interests. 

ARTICLE 32 INVESTIGATIONS 

− Article 32 investigations should ordinarily be open to the public 

-- Access by spectators to all or part of the proceeding may be restricted or 

foreclosed by the commander who directed the investigation or by the 

investigating officer (IO) when, in that officer’s opinion, the interests of justice 

outweigh the public's interest in access 

-- For example, it may be necessary to close an investigation to encourage 

complete testimony of a timid or embarrassed witness, to protect the privacy of 

an individual, or to ensure an accused’s due process rights are protected 

-- Make every effort to close only those portions of the investigation that are 

clearly justified and keep the remaining portions of the investigation open 

-- If a commander or IO orders a hearing is closed, he or she should provide 

specific reasons, in writing, for the closure. Attach the document to the IO’s 

report. 

-- The commander directing the investigation may maintain sole authority over a 

decision to open or close an Article 32 investigation by giving the IO 

procedural instructions at the time of appointment or at any time thereafter 

-- Prior to issuing procedural instructions to open an Article 32 investigation that 

has been closed, the commander must consider the investigating officer's 

written reasons for closing the investigation 

REDUCING TENSION WITH THE MEDIA 

− Command should take positive steps to reduce tension with the media 

-- Have JA and PA 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 
Criminal and Military Justice - 143 

-- 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 

-- Air Force representatives must not encourage or assist news media in 

photographing or televising an accused being held or transported in custody 

-- Provide reserved seating in the courtroom for at least one pool reporter and a 

sketch artist 

-- Advise PA about regulatory and ethical requirements that limit trial counsel 

from commenting on the case 

-- Consider establishing controlled parking and access areas for military judge, 

counsel, witnesses, and court members 

-- When appropriate, discuss with the SJA the possibility of having trial counsel 

request a "gag order" from the military judge. Such an order can direct court 

members not to view media accounts of the case, or discuss the case with the 

media. 

REFERENCES: 

5 U.S.C. § 552, The Freedom of Information Act 

5 U.S.C. § 552a, The Privacy Act of 1974 

Rule for Courts-Martial 405 (2005) 

AFI 33-332, Privacy Act Program (29 January 2004) 

AFI 35-101, Public Affairs Policies and Procedures (26 July 2001) 

AFI 51-201, Administration of Military Justice (26 November 2003) 
144 – The Military Commander and the Law 

ARREST BY CIVIL AUTHORITIES

When a commander receives notice from any source (e.g., a unit member, Security 

Forces (SF), or the Office of Special Investigations (OSI)) that a member of his or her 

command is being held by civilian authorities and is charged with a criminal offense, 

Air Force directives require certain actions 

− 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) 

− The commander may make a statement as to the member's character and prior 

record of reliability, but do not make slanderous statements concerning the member 

− Off-base offenses committed by a military member on active duty may be tried by 

court-martial. The question of personal jurisdiction turns on the status of the 

offender at the time of the offense, not where the offense occurred. 

-- The court-martial convening authority may 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 civilian court jurisdiction 

or court orders 

-- Air Force policy is to deliver a member to federal authorities upon request if the 

request is accompanied by a warrant 
Criminal and Military Justice - 145 

-- Air Force policy is to deliver a member to state authorities upon request, if the 

member is physically present in the state and state procedural rules have been 

followed 

-- The Air Force will not transfer a member from one base to another to make the 

member present in the jurisdiction. The state seeking the member must proceed 

through normal civilian extradition channels. 

-- The Air Force will return a member from an overseas assignment upon request, 

if the member is charged with a felony (an offense that carries a potential 

punishment of confinement for one year or more), or if the offense involves 

taking a child out of the jurisdiction of a court or from the lawful custody of 

another person 

--- The Judge Advocate General can approve a request to return a member 

from overseas and the Under Secretary of Defense, Personnel & Readiness, 

can deny such a request. The Air Force Legal Operations Agency, Military 

Justice Division, processes requests for return from overseas. 

-- A commander can subject a member to restraint pending delivery to civilian 

authorities, provided there is probable cause to believe the member committed 

an offense and is a flight risk 

− An AF Form 2098 reflecting a duty status change must be prepared and forwarded 

to the Military Personnel Flight (MPF) when a member is in civilian custody 

− If a member is held for trial, the commander should advise the member to 

-- Consult with the Area Defense Counsel (ADC). The ADC cannot represent the 

member in civilian proceedings, but may advise the member of the potential 

military consequences. 

-- Retain a civilian attorney or request a court-appointed attorney 

− 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 recommend 

involuntary separation or waive discharge processing. In either case, the decision 

should be made promptly. An extended period of inaction may waive the right to 

process the member for separation. 
146 – The Military Commander and the Law 

-- It is the maximum allowable punishment, not the actual sentence imposed, that 

determines if separation is an option 

-- The member's absence due to confinement in a civilian facility does not bar 

processing the member for separation 

-- The commander must obtain information from the civilian authorities 

concerning the final disposition of the case. The SJA, with the SF or OSI, will 

assist. 

-- If a member is charged with or convicted of a less serious offense (one that 

would not warrant separation) various disciplinary actions that may be 

appropriate (consult with the SJA) 

--- Placing documents concerning the incident into an unfavorable information 

file 

--- Placing the member on the control roster 

--- Issuing an administrative reprimand to the member 

REFERENCES: 

UCMJ art. 14 

AFI 36-3207, Separating Commissioned Officers (9 July 2004) 

AFI 36-3208, Administrative Separation of Airmen (9 July 2004) 

AFI 51-1001, Delivery of Personnel to United States Civilian Authorities for Trial (21 

July 1994) 

AFPD 51-10, Making Military Personnel, Employees, and Dependents Available to 

Civilian Authorities (8 September 1993) 
Criminal and Military Justice - 147 

ADVISING SUSPECTS OF RIGHTS

Good order and discipline is a function of command. At times, a commander may need 

to question a member suspected of breaching good order and discipline or of 

committing some other crime. 

– It is important that a commander understands when and how to advise the member 

of his/her Article 31 rights 

-- The moment a commander or supervisor suspects someone of an offense under 

the UCMJ and starts asking questions or taking any action in which an 

incriminating response is either sought or is a reasonable consequence of such 

questioning, the individual must advise the suspect of his/her rights 

-- Proper rights advisement enables the government to preserve any admissions or 

confessions for later use as evidence for any purpose 

-- Unadvised admissions and confessions 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 

confession is usually inadmissible at trial. 

-- The advisement of rights for both military personnel and civilians is set out in 

the attached Advisement for Military Suspects and Advisement for Civilian 

Suspects 

– Who must give Article 31 rights advisement? 

-- Any person subject to the UCMJ must advise another individual if they suspect 

that person of a criminal offense, and they are interrogating (questioning) the 

person as part of an official law enforcement investigation or disciplinary 

inquiry 

-- 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 rights 

advisement and consult with your SJA. 

– When must Article 31 rights be given? 

-- Whenever there is formal or informal questioning in which an incriminating 

response is either sought or is a reasonable consequence of such questioning. 

This is an interrogation. 
148 – The Military Commander and the Law 

-- Interrogation 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, 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. 

– What must Article 31 rights include? 

-- The general nature of the suspected offense. Legal specifications are not 

necessary; lay terms are okay. However, the allegation must be specific enough 

so that the suspect understands what offense you are questioning him/her about: 

--- The suspect’s right to remain silent; and 

--- The consequences of making a statement. 

-- Although it is not necessary that the advisement be verbatim, it is best to read 

the rights directly from AF Visual Aid (AFVA) 31-231, 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 advisement is listed on the rights advisement card, however, 

and should be included when reading a suspect his/her rights. 

– Rights advisement must be understood and acknowledged by the suspect 

-- The suspect must affirmatively acknowledge understanding of the rights, and 

affirmatively waive his/her rights and consent to make a statement without 

counsel present

-- Consent to make a statement cannot be obtained by coercion, threats, promises, 

or trickery 

-- Be cautious when advising an intoxicated person of his rights. If significantly 

under the influence of drugs or alcohol, the individual may be legally incapable 

of knowingly and voluntarily waiving his rights. 

-- If the suspect equivocates over whether or not to assert his/her rights, the best 

practice is to clarify whether or not he/she will waive their rights and not ask 

any further questions until all doubt is resolved 

– 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. 
Criminal and Military Justice - 149 

– If the suspect requests counsel, stop all questioning. Inform the SJA and get advice 

before re-initiating any questioning. No more questions can be asked until counsel 

is present. 

-- There are several complex legal rules relating to re-initiating questioning once a 

suspect has requested counsel. The rules vary depending on whether or not the 

suspect has been in continuous custody, whether or not the suspect re-initiates 

the questioning, and whether or not you are questioning about the same or a 

different offense. 

-- As a rule of thumb, if a suspect has asserted his/her rights, do not speak to that 

individual again regarding the offense in question unless you have consulted 

with the SJA regarding this area of the law 

– If the individual waives his/her rights and agrees to talk 

-- 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. Handwritten by the suspect is best. 

-- If, after electing to talk, the suspect changes his/her mind, stop all questioning! 

-- Prepare a memorandum for the record (MFR) 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 

REFERENCES: 

UCMJ art. 31 

Mil. R. Evid. 304, 305 (2005) 

AF Visual Aid 31-231, Advisement of Rights 

AF IMT 1168, Statement of Suspect
150 – The Military Commander and the Law 

ADVISEMENT FOR MILITARY SUSPECTS 

I am _____________, (commander of the) __________________, 

__________________ AFB. I am investigating the alleged offense(s) of 

_____________________, of which you are suspected. Before proceeding with this 

investigation, I want to advise you of your rights under Article 31 of the Uniform Code 

of Military Justice. 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. 

Have you previously requested counsel after advisement of rights? (If the answer is 

yes, stop. Consult your SJA before proceeding). If you decide to answer questions 

during this interview, 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 questioning.) 

Have you already consulted an attorney about this matter? (If the answer is yes, stop 

questioning and contact the SJA) Are you willing to answer questions? Do you 

understand that you are free to end this interview at any time? 

ADVISEMENT FOR CIVILIAN SUSPECT 

I am ___________________, (grade, if any, and name), (a member of the Air Force 

Security Forces/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, to 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 the 

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? Have you 

previously requested a lawyer after rights advisement? (If the answer is yes, stop 

immediately. Consult your SJA before proceeding). 
Criminal and Military Justice - 151 

INSPECTIONS AND SEARCHES

INTRODUCTION

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 may vary because of unique factual settings, it is crucial 

that legal advice be sought from the staff judge advocate when questions arise. 

As a commander, military law authorizes you to direct inspections of persons and 

property under your command and to authorize probable cause searches and seizures of 

persons and property under your command. However, a commander who authorizes a 

search or seizure must be neutral and detached from the case and facts. It is, therefore, 

important to separate the command functions of gathering facts and maintaining overall 

military discipline from the quasi-judicial command function of granting search 

authorizations. 

Most bases have centralized the search authorization role in the Installation 

Commander, who is also normally the Special Court-Martial Convening Authority. 

The Installation Commander has discretion to appoint, in writing, up to two military 

magistrates who are then also authorized to act concurrently with him/her on search 

and seizure (including apprehension) requests. Each magistrate must receive training 

provided by the staff judge advocate on search and seizure issues. Law enforcement 

personnel are also trained on the very strict legal procedures that must be followed in 

obtaining proper search authorizations. 

A commander must also appreciate the difference between the legal concepts of 

inspections/inventories and searches/seizures. Failure to do so may result in exclusion 

of crucial evidence in a court-martial. 

KEY TERMS

– Searches are examinations of a person, property or premises for the purpose of 

finding criminal evidence 

– Seizures are the meaningful interference with an individual's possessory interest in 

property 

– Inspections are 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 are administrative actions that account for property entrusted to military 

control 
152 – The Military Commander and the Law 

CONSULTATION WITH THE STAFF JUDGE ADVOCATE TO DISTINGUISH 

AMONG THESE FOUR CONCEPTS IS ESSENTIAL 

SEARCHES

– A search may be authorized for 

-- Persons subject to military law and under your command 

-- Persons or property situated in a place under your command and control 

-- Military property or property of a nonappropriated fund instrumentality 

-- 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, i.e., drugs, unauthorized government property 

-- Fruits of a crime, i.e., stolen property, money 

-- Evidence of a crime, i.e., bloody T-shirt, weapon, fingerprints, photographs 

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 currently located in the place or on the person to 

be searched 

-- Probable cause may arise from 

--- Your personal knowledge 

--- Oral or written information from others 

--- A combination of personal knowledge and information from others 

-- The search authority will make a decision based on the “totality of the 

circumstances,” e.g., believability of information and specific known facts 

-- An anonymous telephone call, by itself, does not justify a probable cause search 

-- When relying on drug 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 
Criminal and Military Justice - 153 

-- 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 delay may otherwise impair the likelihood of 

success 

– Putting together a search request 

-- Refer source of information to Security Forces who will investigate or refer to 

AFOSI 

-- Do not personally investigate 

-- If you discover information which may justify a search 

--- “Freeze" the situation 

--- Immediately notify Security Forces Investigations or OSI 

--- 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 THE PROBABLE CAUSE REQUIREMENT

– Consent searches 

-- Even if the search authority has authorized a search, try to get the consent of 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 knowledgeable and genuinely voluntary. It cannot result from 

threats, coercion, or pressure. Try to have a witness present. 

-- Consent may be orally given or in writing. Written consent is preferred. When 

possible, use AF Form (IMT) 1364, Consent For Search and Seizure. 

-- You may request an individual to consent to a search regardless of whether he 

or she has previously exercised the right to remain silent under Article 31, 

UCMJ 

-- Mere acquiescence to a search is not sufficient to justify a consensual search. 

Consent must be clearly given and voluntary. 
154 – The Military Commander and the Law 

-- 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 

– Besides consensual searches, there are other searches and seizures that may be 

conducted without probable cause 

-- Border searches 

-- Searches upon entry to, or exit from, U.S. installations, aircraft, or vessels 

outside the United States 

-- Searches of government property not issued for personal use. Government 

property issued for personal use include dorm rooms, lockers and family 

housing. 

-- Searches within jails 

-- Searches incident to a lawful stop or apprehension 

-- Other searches as deemed valid under the U.S. Constitution and case law, such 

as an emergency search to save life, searches of open fields, etc. 

SPECIAL SEARCH ISSUES

– Computer Searches 

-- Computer users have a reasonable expectation of privacy in computer files 

stored on personal computers and in mass data storage devices, such as flash 

drives, disks and CDs 

-- To search computer files or storage devices, one must obtain either 

authorization based on probable cause or the consent of the owner 

-- Computer users have a limited expectation of privacy on government 

computers and electronic messages stored in an outside network, e.g., AOL 

account 

-- To search government-controlled network accounts, the best practice is to 

obtain authorization based on probable cause 

-- 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 
Criminal and Military Justice - 155 

– Searches of Privatized/Leased Housing is an unsettled area. Consult your SJA. 

-- The installation commander and the military magistrate probably have power to 

authorize searches of privatized housing located on the installation. Since 

Congress passed the Military Housing Privatization Initiative (MHPI), 10 

U.S.C. §§ 2871-2885 (2000), there has been some question. Under the MHPI, 

the military leases land to private developers who are responsible for housing 

construction and upkeep. The issue is whether the installation commander 

retains sufficient control over family housing when he leases the property to a 

private entity – especially on bases with concurrent jurisdiction. Consult with 

your local staff SJA. 

-- Whether a commander has power to authorize searches of leased housing 

located outside the installation depends upon the amount of control the 

commander has over the property. 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 local SJA. 

INSPECTIONS

– An "inspection" is an examination of a person, property or premises for the primary 

purpose of ensuring the security, military fitness, and/or good order and discipline 

of the organization or installation 

-- Inspections are not searches. A search is a quest for incriminating evidence for 

use in criminal proceedings. 

-- Inspections may be "announced" or "unannounced" and may be authorized 

without probable cause

-- Inspections for weapons and/or contraband are specifically permitted while 

conducting a previously scheduled inspection 

-- 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. 

-- Contraband, weapons, or other evidence 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 

making the inspection appear to be a search in disguise. 

-- Inspections may be conducted personally by the commander or by others at the 

commander's direction 
156 – The Military Commander and the Law 

– Two requirements for conducting an inspection 

-- First, it must not be for the primary purpose of obtaining evidence for use in 

disciplinary proceedings. Commanders may find it helpful to 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 in desk drawers would probably be 

unreasonable since things in drawers would not risk an electrical fire. Then 

the inspection has gone beyond the scope of the purpose of the inspection. 

INVENTORIES

– Inventories may be conducted for valid administrative purposes including 

-- Furniture inventories of dormitories or dormitory rooms 

-- Inventories of an AWOL member's or a deserter's property 

-- Inventories of the contents of an impounded or abandoned vehicle 

– Unlawful weapons, contraband, or other evidence may be lawfully seized during a 

valid inventory 

USE OF BLOOD ALCOHOL TESTS

– A BAT is not required to prove a DUI offense. Observation of the suspect by the 

Security Forces specialist, including a field sobriety test, may be enough. 

– Blood Alcohol Tests (BATs) 

-- Voluntary 

--- You may, after consultation with your SJA, ask a member of your 

command who is suspected of being under influence of alcohol to 

voluntarily take a BAT 

--- Follow procedures of local hospital/clinic laboratory 

-- Nonvoluntary 
Criminal and Military Justice - 157 

--- Although commanders have authority over subordinate members within 

their units, BAT tests are normally directed by a Military Magistrate 

(appointed by the Installation Commander), based on probable cause 

-- Implied consent 

--- Invoked by the Security Forces for DUI offenses 

--- Often results in automatic adverse action for refusal to cooperate 

-- Physician authorized 

--- For medical reasons determined by examining physician 

--- Results may be used criminally 

USE OF DRUG DOGS

– Drug 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 

– Drug dogs may be used during inspections anywhere within the scope of the 

inspection, i.e., dormitory rooms, whether the occupant is present or not 

– What to do when a drug dog "alerts" in a common area 

-- Can immediately "search" all common areas for contraband; and 

-- If it appears that the "alert" in a common area is on contraband in a noncommon 

area, for example 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 as to all other areas previously 

determined within the scope of the inspection 
158 – The Military Commander and the Law 

REFERENCES: 

10 U.S.C. § 2871-85 

Mil. R. Evid. 311-317 (2005) 

AFI 31-202, Military Working Dog Program (1 August 1999) 

AFI 31-204, Air Force Motor Vehicle Traffic Supervision (14 July 2000) 

AFI 51-201, Administration of Military Justice (26 November 2003) 
Criminal and Military Justice - 159 

PRELIMINARY INQUIRY INTO REPORTED OFFENSES

When a military member is accused or suspected of an offense, the member’s 

immediate commander is responsible for ensuring a preliminary inquiry is conducted 

and appropriate command action is taken 

– In some cases, the commander or first sergeant may conduct the preliminary 

inquiry, e.g., failure to go, dereliction of duty. This may involve nothing more than 

talking with the member’s supervisor. 

– In more serious cases, law enforcement agents such as SFOI or OSI will normally 

conduct the investigation and report the results to the commander for disposition of 

the case. When the commander receives a report of investigation from law 

enforcement, he or she may fulfill the preliminary inquiry requirement by 

reviewing the report and any witness statements. 

– In any case involving a disciplinary action or a criminal offense, the commander 

should consult with the staff judge advocate 

– The commander determines the appropriate action. Allegations of offenses should 

be disposed of at the lowest appropriate level. Options available to the commander 

include 

-- No action 

-- Administrative action (e.g., letter of reprimand, removal from supervisory 

duties) 

-- Nonjudicial punishment (Article 15) 

-- Preferral of court-martial charges 

--- Before preferring charges against a military member, be sure to thoroughly 

review the report of investigation 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 

often the commander. 

– A commander who is a court-martial convening authority or who grants search 

authority must remain neutral and detached from the cases they are involved in. 

Those commanders will not generally act in an investigative capacity. 

REFERENCE: 

Rule for Courts-Martial 303 (2005)
160 – The Military Commander and the Law 

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 

Uniform Code of Military Justice (UCMJ). 

− 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 the Correction of Military 

Records, Congressional Inquiries, etc. 

− AFI 90-301, Inspector General Complaints, should not be used as authority for an 

IG inquiry 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 

− 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, follow the procedures of AFI 90-301, para. 2.15 and table 2.9 

requiring the IG to refer the case to the appropriate agencies or consult with the 

SJA. 

-- If charges have been preferred in a case, the IG should generally not have any 

direct involvement 

-- If the investigation of matters tangential to the charges becomes necessary, the 

IG should consult the SJA to ensure the investigation does not in any way 

prejudice the administration of justice under the UCMJ 

-- If action is initiated under Article 15, UCMJ, the IG should apply the policies 

of AFI 90-301, para. 2.15 and table 2.9 

--- Appeal rights under AFI 51-202, Article 15 of the UCMJ, 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 
Criminal and Military Justice - 161 

---- Assessing the sufficiency of the evidence 

---- Probing the commander's deliberative process concerning the decision 

to initiate action, the complainant's guilt, or punishment imposed 

--- The complainant should also be referred to AFI 36-2603, Air Force Board 

for Correction of Military Records 

-- The IG also investigates any 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: 

MANUAL FOR COURTS-MARTIAL, PART V, UNITED STATES (2005) 

AFI 36-2603, Air Force Board for Correction of Military Records (1 March 1996) 

AFI 51-202, Nonjudicial Punishment (7 November 2003) 

AFI 90-301, Inspector General Complaints (8 February 2005) 
162 – The Military Commander and the Law 

PREPARATION, PREFERRAL, AND PROCESSING OF CHARGES

The preparation of court-martial charges involves drafting the charge and specification. 

Preferral of charges in the military is the act of formally accusing someone of a 

violation of the UCMJ. Processing of the charge involves forwarding the charge and 

specification to a convening authority for disposition. 

− 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 normally drafts the 

charge and specification 

-- The charge are documented in Section II, block 10 of the Charge Sheet (DD 

Form 458) 

− Preferral of the charge 

-- It is the first formal step in initiating a court-martial 

-- Anyone subject to the UCMJ can prefer charges against a person subject to the 

Code 

-- By Air Force custom, the accused’s immediate commander normally prefers 

charge 

-- Preferral is documented in section III, block 11 of the Charge Sheet (DD Form 

458) 

-- 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 

--- The accuser only must believe that there is a basis in fact for the charge, not

that the accused is guilty 
Criminal and Military Justice - 163 

− Processing of the charge 

-- Preferral does not require the presence of the accused. However, after preferral, 

the commander must cause the accused to be informed of the charge. Since the 

commander is normally the accuser, the notice to the accused will typically 

occur at the same time as the 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). The SJA may be 

authorized by the SCMCA to receive the charges on the SCMCA’s behalf. 

-- 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 also normally the SPCMCA, so this extra step 

of forwarding the charge from the SCMCA to the SPCMCA is not necessary. 

-- The SPCMCA can dismiss the charges or return the charges to the commander 

for alternate disposition. If the SPCMCA decides the charge should go to a 

court-martial, they can take one of the following actions: 

--- Refers the charge to a special court-martial or summary court-martial; or 

--- Appoints an Article 32 Investigating Officer (IO) to conduct an Article 32 

investigation, if the SPCMCA thinks a general court-martial might be 

appropriate 

---- The IO completes and forwards a report of investigation to the 

SPCMCA, who reviews the report. If the SPCMCA thinks a general 

court-martial is appropriate, the SPCMCA forwards it along with the 

charge, to the General Court-Martial Convening Authority 

(GCMCA) for referral to a general court-martial. 

---- The GCMCA can refer the charge to a general court-martial, return 

the charge to the SPCMCA for disposition, or dismiss the charge 

− Once the charge has actually been referred to trial, the appointed trial counsel will 

then formally serve the accused with a copy of the charge and specification. This is 

documented in block 15 of the Charge Sheet. 

− Time constraints are involved in the preferral and trial of court-martial charges. 

The accused’s right to a speedy trial and the impact delayed processing can have on 

the effectiveness of military justice demand that charges be disposed of in prompt 

manner. 
164 – The Military Commander and the Law 

REFERENCES:

Rule for Courts-Martial 307 (2005) 

AFI 51-201, Administration of Military Justice (26 November 2003) 

DD Form 458, Charge Sheet, May 2000 
Criminal and Military Justice - 165 

PRETRIAL CONFINEMENT

Pretrial confinement is physical restraint, imposed by order of competent authority, 

depriving a person of freedom pending disposition of charges. Only a person who is 

subject to trial by court-martial may be confined. 

– NEVER CONFINE ANYONE WITHOUT FIRST CONSULTING THE 

SJA!!!

-- The imposition of pretrial confinement starts the Speedy Trial Clock, regardless 

of whether charges have been preferred 

-- If confinement is not appropriate, imposing it can hurt the government's case at 

trial 

– A person may be ordered into pretrial confinement only when there is reasonable 

belief that: 

-- An offense triable by court-martial has been committed; 

-- The person to be confined committed it; and 

-- Confinement is required by the circumstances. 

– Upon entry into confinement, the person to be confined must be promptly notified 

of 

-- Nature of the offenses for which he or she is being held 

-- Right to remain silent and that any statements made may be used against 

him/her 

-- Right to request assignment of military counsel 

-- Right to retain civilian counsel at no expense to the U.S. 

-- Procedures by which pretrial confinement will be reviewed 

– 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 
166 – The Military Commander and the Law 

-- The nature and circumstances of the offense 

-- Weight of the evidence against the accused 

-- The accused's ties to the local community, such as family or off-duty 

employment 

-- Likelihood that the accused will flee 

-- The accused's character and mental condition 

-- The accused's service record 

-- Likelihood the accused will commit further serious misconduct if not confined 

-- Effectiveness of lesser forms of restraint 

– 72-hour Commander Review: If confinement is continued, within 72 hours of entry 

into confinement, the confinee’s commander must decide whether pretrial 

confinement is warranted and will continue 

-- Continued confinement is warranted if the commander has probable cause to 

believe that 

--- An offense triable by court-martial has been committed 

--- The 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. 

-- If the commander determines that confinement should be continued, AFI 51-

201 requires this decision be put in writing, including an explanation of the 

reasons 

-- 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. 
Criminal and Military Justice - 167 

– Pretrial Confinement Hearing: A Reviewing officer must decide, within 7 days of 

entry into confinement, whether the confinee shall be released or continued in 

pretrial confinement, and prepares a memorandum documenting the decision 

-- Reviewing officer is a “neutral and detached” officer and will be either 

--- Pretrial Confinement Review Officer appointed by the convening authority 

--- Military Magistrate appointed by the convening authority; or 

--- Military Judge, although it is unusual for a judge to conduct initial review 

of pretrial confinement unless it is after referral of charges 

-- Reviewing officer must review the commander’s 72-hour memorandum to 

determine whether the requirements for pretrial confinement are met 

-- Reviewing officer 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 adversary proceeding and prisoner and counsel have no 

right to cross-examine witnesses 

-- Reviewing officer’s memorandum is forwarded to convening authority who 

may only override 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 

– Pretrial confinees must not be subjected to pretrial punishment 

-- 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. Upon review at or before trial, a military judge will examine the 

purposes served by the restriction or condition and whether such purposes are 

"reasonably related to a legitimate governmental objective." 

-- Commingling pretrial and sentenced prisoners, without more, is not 

automatically considered pretrial punishment. Confinement officers and guards 

must be aware of the differences between sentenced prisoners and pretrial 

confinees. The lack of guidance in local confinement regulations will not 

excuse the mistreatment of a confine. 
168 – The Military Commander and the Law 

– Restriction may be found to be tantamount to confinement in some cases. The 

factors to be considered include 

-- Limits of restriction 

-- Limits on activities (e.g., was the accused able to go to the gym, BX, etc.) 

-- Conditions (e.g., was accused required to report to commander and, if so, how 

often) 

– Prisoners 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 is an 

additional day or more for each day of pretrial confinement. 

– 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 noncompliance 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 one or two days of additional credit for each day of illegal 

confinement to dismissal of the charges 

REFERENCES: 

Rule for Courts-Martial 304-05, 707 (2005) 

AFI 51-201, Administration of Military Justice (26 November 2003) 
Criminal and Military Justice - 169 

PRETRIAL RESTRAINT

Pretrial restraint is moral or physical restraint on a person's liberty that is imposed 

before or during trial by court-martial. Pretrial restraint may consist of conditions on 

liberty, restriction in lieu of arrest, arrest, or confinement. 

– ALWAYS CONSULT WITH YOUR STAFF JUDGE ADVOCATE BEFORE 

IMPOSING ANY PRETRIAL RESTRAINT!!!

-- The imposition of restriction, arrest, or pretrial confinement starts the Speedy 

Trial Clock 

-- Speedy trial violation can result in dismissal of the charges, regardless of a 

commander’s good intentions 

– Conditions on liberty are 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 example is a commander’s order to an accused to stay away from a 

victim, usually termed a “no contact order” 

– Restriction in lieu of arrest is imposed by directing a person to remain within 

specified limits 

-- Normally restriction is to remain within the confines of the base or unit area 

-- A restricted person shall, unless otherwise directed, perform full military duties 

-- A judge may find certain restriction tantamount to confinement in cases where 

the conditions of the restriction amount to physical restraint that deprives a 

person of their freedom of movement. If the judge believes that restriction was 

tantamount to confinement, the accused will receive day-for-day credit off any 

sentence. 

– Arrest is the restraint of a person, directing the person to remain within specified 

limits 

-- An arrested person does not perform full military duties 

-- Not common, but sometimes seen in officer cases, i.e., “house arrest” 

– Pretrial confinement is physical restraint imposed by competent authority which 

deprives a person of freedom pending trial, such as placing them in jail 
170 – The Military Commander and the Law 

– Who may order pretrial restraint 

-- Only a commanding officer to whose authority an officer is subject may impose 

pretrial restraint on an officer. This authority may not be delegated. 

-- Any commissioned officer may impose pretrial restraint on any enlisted person 

-- Commanding officer can delegate authority to order pretrial restraint of enlisted 

personnel under his or her command to noncommissioned officers (usually the 

first sergeant) 

– Pretrial restraint 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. 

– The restraint should not be more rigorous than the circumstances require to ensure 

the presence of the person restrained or to prevent foreseeable serious criminal 

misconduct 

– Individual must be personally notified of the nature and terms of the restraint 

-- An officer must be personally notified by the restraining authority or another 

commissioned officer 

-- An enlisted member must be notified by the restraining authority or through 

another person subject to the Uniform Code of Military Justice (UCMJ) 

-- Upon restraint, the individual must be advised of the offense that is the basis for 

the restraint 

– A person may be released from pretrial restraint by any person authorized to 

impose the restraint 

– Pretrial restraint is not punishment and may not be used as a form of punishment 

REFERENCES: 

Rule for Courts-Martial 304-05, 707 (2005) 

AFI 51-201, Administration of Military Justice (26 November 2003) 
Criminal and Military Justice - 171 

IMMUNITY

Immunity for an individual should be granted only when a person’s information is 

necessary to the public interest, including the needs of 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. 

− There are two types of immunity under Rule for Courts-Martial (R.C.M.) 704 

-- Testimonial immunity or "use" immunity bars the use of a given person's 

testimony, statements, and information directly or indirectly derived therefrom 

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 or “use” immunity is preferred because it does not prevent the 

government from trying the person for a criminal offense 

-- However, if you intend to prosecute an individual to whom a grant of immunity 

may be required, it is best to prosecute him or her first, then obtain a grant of 

immunity for the statements or testimony provided in the subsequent case 

-- If prosecution of the immunized person occurs after the individual has testified 

or provided statements under the grant of immunity, the government has a 

heavy burden to show that it has not used the person’s immunized testimony or 

statements in any way for the prosecution of that person. Often the government 

cannot meet this burden. The outcome is no prosecution for those offenses that 

were disclosed as a result of the testimonial immunity. 

− Only a General Court-Marital Convening Authority (GCMCA) may grant 

testimonial or transactional immunity. R.C.M. 704(c).

-- The GCMCA's authority to grant immunity extends only to individuals subject 

to the UCMJ 

-- The GCMCA can disapprove immunity requests for witnesses not subject to the 

UCMJ, but may approve such requests only after receiving Department of 

Justice (DOJ) authorization 

-- 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 
172 – The Military Commander and the Law 

-- In National Security Cases, immunity requests must be coordinated with DOJ 

and other interested U.S. agencies

APPROVAL AUTHORITY FOR CASES OTHER THAN NATIONAL SECURITY

 Court-Martial U.S. prosecution 

Person Subject to UCMJ GCMCA can approve DOJ must approve 

Person Not Subject to 

UCMJ 

GCMCA can disapprove, but 

DOJ must approve 

DOJ must approve 

− A grant of immunity constitutes an order to testify 

-- Under Military Rule of Evidence 301(c), 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, he or she 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 false official 

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 an officer, other than the GCMCA: 

-- Manifests apparent authority to grant immunity (Commanders, First Sergeants, 

and investigative agents may, by their actions or words, manifest such apparent 

authority); and 

-- Makes a representation that causes the accused to honestly and reasonably 

believe that he or she will not be brought to court if a certain condition is 

fulfilled (and the accused fulfills the condition); and has at least the tacit 

approval of the GCMCA 

− A finding of de facto ("in fact") immunity will operate the same as an actual grant 

of immunity 

REFERENCES: 

Rule for Courts-Martial 704 (2005) 

MIL. R. EVID. 301(c) (2005) 

AFI 51-201, Administration of Military Justice, para. 6.6 (26 November 2003) 
Criminal and Military Justice - 173 

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 a “cap,” or 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 who referred the case to trial. The accused is 

entitled to have the convening authority personally act upon the offer before trial. 

− Procedures 

-- 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 forward the written PTA offer to the convening authority with a 

recommendation 

-- The SJA will obtain the appropriate approval from the Department of Justice 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 U.S. This includes attempt, 

conspiracy, and solicitation to commit any of the above offenses. 

-- The entire PTA must be in writing and signed by the accused, defense counsel, 

and the convening authority. The PTA must not involve any informal oral 

promises or representations. 

-- Either party may void a PTA by withdrawing from it 

-- The convening authority may withdraw 

--- Anytime 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 
174 – The Military Commander and the Law 

--- 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 or 

her final action in the case 

---- The convening authority may not withdraw from a PTA in any way that 

would be unfair to the accused 

---- Withdrawals by either party must be in writing 

-- If an accused withdraws from a PTA at any time, the convening authority is no 

longer bound by the agreement 

-- 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. This inquiry is in 

addition to the judge's inquiry into the validity of the guilty plea itself. 

-- In a trial by military judge alone, the military judge will not examine the 

sentencing cap 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. 

-- The 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 PTA, the convening authority may only approve the lesser 

sentence agreed to in PTA 

--- If the adjudged sentence is less than the PTA cap, only the lesser, adjudged 

sentence may be approved 

− Permissible PTA conditions

-- A promise to enter into a reasonable stipulation of fact concerning the facts and 

circumstances surrounding the charged offenses 

-- A promise to testify as a witness in a trial of another person 
Criminal and Military Justice - 175 

-- A promise to provide restitution 

-- 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 

--- The right to a trial before court members 

--- The right to a trial before military judge sitting alone 

--- The opportunity to obtain the personal appearance of certain witnesses at 

the sentencing proceeding 

REFERENCES: 

Rule for Courts-Martial 705 (2005) 

AFI 51-201, Administration of Military Justice (26 November 2003) 
176 – The Military Commander and the Law 

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). In either case, the trial will consist 

of two major portions, findings and sentencing. 

− Findings is the first part of the trial during which guilt or innocence is determined 

-- Guilty Plea: 

--- In guilty plea cases, a military judge, sitting alone, will question the accused 

to make sure he understands the meaning and effect of his plea, and that he 

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 capital cases when the death penalty is a 

permissible punishment 

-- Not Guilty Plea: 

--- Guilt or innocence is then determined by the military judge alone, or a panel 

of members, whichever the accused elects 

---- An enlisted accused may elect to have at least one-third enlisted 

members included in the court-martial panel 

---- Trial by military judge alone is not allowed in capital cases 

--- The accused is presumed innocent 

---- The prosecution must prove the accused's guilt beyond a reasonable 

doubt 

---- The 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. 

--- In a trial with members, two-thirds of the members, voting by secret written 

ballot, must concur in any finding of guilty. In order to sentence the 

accused to death in a capital case, however, the vote of guilty on findings 

must be unanimous. 
Criminal and Military Justice - 177 

− Sentencing is the second part of the trial during which an appropriate punishment is 

determined 

-- Unlike many civilian courts, sentencing normally occurs immediately after 

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 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 

--- The prosecution can present matters in aggravation and can rebut evidence 

the accused presents in extenuation and mitigation 

--- As in the findings portion of trial, the accused has an absolute right to 

remain silent and present no evidence during sentencing. However, the 

accused also has a right to present evidence in extenuation and mitigation. 

-- In sentencing by members, two-thirds must concur, voting by secret written 

ballot, in any sentence except: 

--- Three-fourths must concur in a sentence that includes confinement in excess 

of 10 years; and 

--- Any sentence that includes the death penalty must be unanimous 

REFERENCE: 

Rules for Courts-Martial (2005) 
178 – The Military Commander and the Law 

CONFIDENTIALITY AND PRIVILEGED COMMUNICATION

In the federal/military sector, privileged communication and the protection of 

confidentiality exists only in the following relationships 

CHAPLAIN - PENITENT

− Absolute privilege for all information confided in chaplain or clergyman as a 

formal act of conscience or religion 

− 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 

− The privilege extends to the chaplain's or clergyman’s staff 

ATTORNEY - CLIENT 

− Absolute privilege for all information confided to an ADC or legal assistance 

attorney during representation except with respect to some future crimes or frauds 

upon the court 

− Communications between a commander and SJA 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 

− The privilege extends to non-lawyer members of the attorney's staff, i.e., 

paralegals, secretaries, etc. 

PHYSICIAN - PATIENT 

− The Military Rules of Evidence (M.R.E.) generally do not recognize a physicianpatient privilege

− No privilege for civilians treated in a military facility, but Privacy Act and other 

federal regulations protect any illegal third party disclosure (See AFI 33-332 and 

DoD 6025.18-R) 

MEDICAL RECORDS

− Military medical records are the property of the Air Force 
Criminal and Military Justice - 179 

− Information in the health record is personal to the individual and will be properly 

safeguarded (See AFI 41-210, para. 2.1) 

− Commanders or commanders’ designees may access members’ military medical 

records when necessary to ensure mission accomplishment. See AFI 41-210, para. 

2.5.6.2; DoD 6025.18-R, para. C7.11. 

PSYCHOTHERAPIST PATIENT

− A limited privilege exists between persons subject to the UCMJ and 

psychotherapists. See Jaffee v. Redmond, 116 S.Ct. 1923 (1996) and M.R.E. 513. 

-- Generally, the limited privilege protects only confidential communications 

which are made to a psychotherapist (or assistant) for the purpose of diagnosis 

in cases arising under the UCMJ 

-- Exceptions include, but are not limited to: when the patient is dead; the 

communication is evidence of spouse or child abuse or neglect and there is an 

allegation of such misconduct; or law or regulation imposes a duty to report the 

information 

− Under AFI 44-109, 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 R.C.M. 706 and M.R.E. 302 

-- A limited privilege also exists under the Limited Privilege Suicide Prevention 

(LPSP) Program pursuant to AFI 44-109, 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 

DRUG/ALCOHOL ABUSE TREATMENT PATIENTS 

− AFI 44-121, 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 

-- Member must disclose before his or her drug abuse is discovered or the member 

is placed under investigation. Member may not disclose after he is ordered to 
180 – The Military Commander and the Law 

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. See 42 U.S.C. §§ 290dd-2, 290ee-2. 

SPOUSAL PRIVILEGE

− Spouse may elect not to testify against the other spouse as long as a valid marriage 

exists at the time of the 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 other 

spouse, the 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. However, the statute specifically 

authorizes release of this information “[t]o any 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 IAW the 

Privacy Act 

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 IAW 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 

REFERENCES: 

42 U.S.C. §§ 290dd-2 and 290ee-2, Substance Abuse Treatment Records 

10 U.S.C. § 1102, Quality Assurance Documents 

Rule for Courts-Martial 706 (2005) 
Criminal and Military Justice - 181 

MIL. R. EVID. 302, 501-513 (2005) 

DoD 6025.18-R, DoD Health Information Privacy Regulation (24 January 2003) 

AFI 33-332, Privacy Act Program (29 January 2004) 

AFI 36-2706, Military Equal Opportunity (MEO) Program (29 July 2004) 

AFI 36-3009, Family Support Center Program (1 February 1997) 

AFI 44-109, Mental Health and Military Law (1 March 2000) 

AFI 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program

(26 September 2001) 

AFI 41-210, Patient Administration Functions (22 March 2006) 

TJAG Policy Memorandum: TJAGC Standards-2, Air Force Rules of Professional 

Conduct and Standards for Civility in Professional Conduct (17 August 2005) 
182 – The Military Commander and the Law 

USE OF INFORMATION IN THE PIF & 

REHABILITATION TESTIMONY AT TRIAL

Documents in a Personnel Information File (PIF) such as letters of reprimand can be 

admitted into evidence during the sentencing phase of court-martial if it is clear from 

the face of the document that the member received the document and had an 

opportunity to respond to the allegations. The document must also be complete. 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. 

− Rule for Courts-Martial 1001(b)(5) permits evidence of rehabilitative potential to 

be introduced in the sentencing phase of the trial. The term "rehabilitative 

potential" as defined in the Manual for Courts-Martial "refers to 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 

-- The scope of the rehabilitation evidence must be limited to whether the accused 

indeed has rehabilitative potential, and the magnitude or quality of any such 

potential. An example would be “SSgt Doe has outstanding rehabilitation 

potential.” 

-- The 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 

-- The 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)(5) (2005) 

AFI 51-201, Administration of Military Justice (26 November 2003) 
Criminal and Military Justice - 183 

POST-TRIAL MATTERS, CONVENING AUTHORITY ACTION, 

AND APPEALS

− The findings and sentence adjudged by a court-martial are not final until approved 

or disapproved by the convening authority 

-- For courts-martial sentences adjudged 

--- Any adjudged or automatic forfeiture of pay and reduction in grade is 

effective 14 days after the announcement of sentence, or when the 

convening authority takes action on the sentence, whichever is sooner. The 

accused may request a deferment until action. 

--- Any accused sentenced to death, or a punitive discharge and confinement 

for six months or less, or confinement for more than six months, shall 

automatically forfeit their pay and allowances up to the jurisdictional limits 

of their court-martial (GCM - total forfeitures; SPCM - 2/3 forfeitures), for 

any period of confinement or parole. The convening authority can waive 

any or all of these forfeitures for a period not to exceed six months to direct 

an involuntary allotment to provide for the support of the accused’s 

dependent family members. 

-- A sentence to confinement begins as soon as it is adjudged, unless the accused 

requests a deferment. Unless a deferment of confinement is requested by the 

accused and approved by the convening authority, the time of confinement will 

run even if the accused is not actually confined. 

− The accused may submit written matters relevant to the convening authority's 

decision whether to approve findings of guilt or to approve or disapprove all or part 

of the sentence. Written matters 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 by the court 

-- Clemency recommendations by any court member, the Military Judge, or any 

other person 

− In cases where a punitive discharge is adjudged, the discharge cannot be ordered 

executed until appellate review is completed 
184 – The Military Commander and the Law 

-- Members are usually placed in mandatory excess leave (nonpay) status in cases 

where no confinement was adjudged or when all confinement is served, but 

before appellate review is completed 

-- The convening authority, or successor, must take additional action to execute 

the punitive discharge after appellate review has been completed 

− The type of appellate review depends upon the adjudged sentence and type of 

court-martial 

− A judge advocate will conduct a review of all summary courts-martial, special 

courts-martial that do not include a punitive discharge or one year confinement and 

cases in which appellate review as described below has been waived 

-- 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 he/she reviews to the Air Force Court of Criminal Appeals (AFCCA). 

-- Unless appellate review is waived by an accused, the AFCCA automatically 

reviews all cases involving sentences of death, punitive discharge, or 

confinement of one year or more. The AFCCA reviews both legal and factual 

sufficiency. 

-- 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 by The Judge Advocate General of each 

service. The CAAF reviews only questions of law and legal sufficiency. 

-- Cases actually reviewed by the CAAF may be considered for review by the 

Supreme Court of the United States 

REFERENCES: 

Rule for Courts-Martial 1101-07, 1201-05 (2005) 

UCMJ arts. 57(a), 58(b), 60, 66-69 and 76a 

AFI 51-201, Administration of Military Justice (26 November 2003)
Personnel Issues for the Commander - Generally - 185 

CHAPTER SIX: 

PERSONNELISSUES FOR 

THE COMMANDER – GENERALLY 

Total Force: Reserve and National Guard Forces......................................................186 

Return of Military Personnel, Employees, and Family Members 

from Overseas for Trial .............................................................................................189 

Drug Abuse................................................................................................................192 

Alcohol Abuse ...........................................................................................................199 

Freedom of Information Act......................................................................................207 

Privacy Act ................................................................................................................211 

Army and Air Force Exchange Service and Commissary Benefits...........................215 

Driving Privileges......................................................................................................218 

Debarment..................................................................................................................221 

Free Speech, Demonstrations, and Open Houses......................................................223 

Private Organizations.................................................................................................226 
186 – The Military Commander and the Law 

TOTAL FORCE: RESERVE AND NATIONAL GUARD FORCES

TOTAL FORCE CONCEPT (AIR RESERVE COMPONENT, ARC) 

− In 1973, Total Force policy was established, calling for a mix of active and reserve 

component forces to ensure maximum military capability is achieved at minimum 

cost. There are three overarching groups of reserve forces personnel. 

-- Ready Reserve: Main component is the Selected Reserve 

--- Can be units or individuals 

--- Includes all Air National Guard personnel 

-- Standby Reserve: Members maintain affiliation without being in Ready 

Reserve; not in units, not required to train 

-- Retired Reserve: Subject to recall by SecAF 

AIR FORCE RESERVE

− Missions: Provide trained units and individuals to accomplish assigned taskings in 

support of national objectives and perform peacetime missions that are compatible 

with training and mobilization readiness requirements 

− Primary reserve categories 

-- Category A: (Unit Reservists - a stand-alone reserve unit) 

--- Assigned to and train on weekends (UTA = Unit Training Assembly) as a 

Reserve unit, such as an airlift group or fighter wing 

--- Commanders and supervisors with questions about how to handle alleged 

misconduct involving Category A Reservists should contact their unit staff 

judge advocate. In addition, they may contact HQ AFRC/JA at Robins 

AFB, Georgia. 

-- Category B: (Assigned/Train as an individual; backfill RegAF members) 

--- Individual Mobilization Augmentees (IMAs) 

--- Assigned to HQ AFRC, but attached to active duty organizations 
Personnel Issues for the Commander - Generally - 187 

--- Commanders and supervisors with questions about how to handle alleged 

misconduct involving Category B (IMA) Reservists should contact their 

unit staff judge advocate. In addition, they may contact HQ ARPC/JA in 

Denver, Colorado 

− Annual membership requirements 

-- Category A Reservists 

--- 48 UTA (Unit Training Assembly) periods (also known as IDT, or Inactive 

Duty for Training status); 4 periods per weekend for a total of 12 weekends 

per year 

--- 15 ADT (Active Duty for Training) days 

-- Category B Reservists (IMAs) 

--- 24 IDT periods per year (2 IDT periods per day for a total of 12 days per 

year) 

--- 12 AT (Annual Tour) active duty days per year 

− Full-time management 

-- Air Reserve Technicians (ARTs) or Military Technicians (MTs): Title 5 

Federal civilian employees with a "condition of employment" requiring they 

maintain active reserve membership (reserve "status") in their reserve unit. If 

they lose reserve status, they usually lose Title 5 civilian employee status 

(removed for failing to meet condition of employment. 

-- Active Duty Personnel 

--- AGRs (Active Guard/Reserve): Reserve personnel on extended active duty 

for more than 180 days (often 4 or 6 years) who provide full-time support to 

AFR units 

--- Air Force active duty personnel 

-- Federal Civil Service Employees 

− UCMJ jurisdiction: Reserve personnel are subject to the UCMJ while in active 

status (ADT or full-time active duty) or inactive duty for training status (UTAs or 

IDTs) 
188 – The Military Commander and the Law 

AIR NATIONAL GUARD

− Dual Mission based upon Militia Clause of U.S. Constitution, Article 1, Section 8 

-- Federal status: Title 10 of the United States Code 

-- State status: Title 32 of the United States Code (e.g., disaster relief, riot control, 

etc.) 

− Annual membership requirements: 48 UTAs (12 weekends) and 15 ADT days 

− Full-time support 

-- Active duty personnel 

--- AGRs: ANG personnel on active duty; same as for Air Force Reserve 

--- Active duty Air Force advisors 

-- Air National Guard Technicians or Military Technicians (MTs): Federal 

civilian employees who occupy technician positions. Must be members of both 

State Guard and federal civil service. If they lose one status, they lose the 

other. 

-- State Civilian Employees 

− UCMJ jurisdiction: ANG personnel are only subject to the UCMJ when "in Federal 

status" (Art. 2(a)(3), UCMJ), which requires being on Title 10 orders (either ADT, 

full-time active duty, or called up for federal service). In any other status (Title 32 

training or state service), only the state has jurisdiction. Complex rules govern 

when ANG personnel are in which status. 

REFERENCES: 

10 U.S.C. § 12301, et seq. (reserve components generally) 

10 U.S.C. § 10216-18 (Military Technicians) 

32 U.S.C. § 709 (Air National Guard Technicians) 

DoDD 1205.18, Full-Time Support to the Reserve Components (May 25, 2000) 
Personnel Issues for the Commander - Generally - 189 

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. The implementing regulation 

requires cooperation with federal and state officials who request assistance to enforce 

court orders, which are the subject of a felony charge, felony conviction, or contempt 

or show cause order. Air Force policy is as follows: 

− 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 noncompliance 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: 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 other serious offense punishable by confinement for more than one year, 

or who is sought for the unlawful taking of a child, will normally be expeditiously 

returned to the United States for delivery to the requesting authorities. The OPR 

for this process is the Air Force Legal Operations Agency (AFLOA/JAJM). 

-- Before taking action to return a member under the above-mentioned 

circumstances, the member must be afforded an opportunity to show legitimate 

cause for noncompliance 

-- The Air Force Judge Advocate General may direct return for less serious 

offenses when deemed appropriate under the facts and circumstances of the 

particular case 

-- Return is not required if the controversy can be resolved without returning the 

member to the United States 

-- If approved, member receives PCS orders from AFPC with assignment to an 

installation as close to requesting jurisdiction as possible 
190 – The Military Commander and the Law 

-- 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 

-- The member’s return would have an adverse impact on operational readiness or 

mission requirements 

-- An international agreement precludes the member’s return 

-- The member is subject to foreign judicial or court-martial proceedings or a 

military department investigation 

-- The member shows satisfactory evidence of legal efforts to resist the request or 

other legitimate causes for noncompliance 

-- Other unusual facts or circumstances warrant a denial 

− Commanders send recommendations for denial through their legal office, 

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 The Air Force Judge Advocate General 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 

noncompliance 

-- 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 

PROCEDURE: EMPLOYEES OR FAMILY MEMBERS WHO ARE OVERSEAS

− Upon receipt of a request for assistance from federal, state, or local authorities for 

custody involving noncompliance with a court order (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 commanders shall strongly 

encourage the employee or family member to comply 
Personnel Issues for the Commander - Generally - 191 

− 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: 

UCMJ art. 14 

DoDI 5525.09, Compliance of DoD Members, Employees, and Family Members 

Outside the United States with Court Orders (10 February 2006) 

AFI 34-301, Nonappropriated Fund Personnel Management and Administration (25 

July 1994) 

AFI 36-3208, Administrative Separation of Airmen (9 July 2004) 

AFI 36-704, Discipline and Adverse Actions (22 July 1994) 

AFI 51-1001, Delivery of Personnel to United States Civilian Authorities for Trial (21 

July 1994) 
192 – The Military Commander and the Law 

DRUG ABUSE

AIR FORCE 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 

− The 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. 

− Civilian employee abusers are given the same consideration and help as employees 

with other health problems 

DRUG ABUSE AND MILITARY MEMBERS

− 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 

-- Provide appropriate incentives to encourage members to seek help for problems 

with drugs without fear of negative consequences 

-- The commander is responsible for and has control of all personnel, 

administrative, and disciplinary actions pertaining to members involved in the 

Air Force Alcohol and Drug Abuse Prevention and Treatment (ADAPT) 

Program 

-- Commander involvement in treatment is critical. The commander provides the 

authority for treatment when the member refuses to comply with treatment 

decisions. 

− Abuser identification 

-- Self-identification: 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 
Personnel Issues for the Commander - Generally - 193 

--- Is seeking treatment and voluntarily reveals nature and extent of drug 

involvement to Commander, First Sergeant, Military Equal Opportunity 

(MEO) personnel, or medical authority; and 

--- Has not previously been apprehended for drug involvement; placed under 

investigation for drug abuse; ordered to give a urine sample; advised he or 

she was recommended for discharge for drug abuse; or entered into drug 

abuse treatment 

--- The limited protection for self-identification also does not apply to 

disciplinary or other action based on independently derived evidence (other 

than commander-directed drug testing), including evidence of continued 

drug abuse after the member initially entered the treatment program 

-- Commander referral: Commanders shall refer a member for assessment when 

drugs are thought to be a contributing factor in any incident, such as 

deteriorating duty performance, excessive tardiness or absenteeism, 

misconduct, unacceptable social behavior; or domestic disturbances/family 

violence 

-- As a result of arrest, apprehension and investigation: Commanders who receive 

information of this nature must refer the member for a substance abuse 

assessment if substance abuse is, or is suspected to be, a contributing factor in 

any incident 

-- Incident to medical care: Medical personnel must notify the commander and the 

ADAPT Program Manager (ADAPTPM) if their treatment of a patient reveals 

proof of drug use 

-- Random drug testing: Positive results mandate a substance abuse evaluation 

THE 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 

-- The ADAPT staff members evaluate all members suspected of drug abuse in 

order to help the commander understand the extent of the drug 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 proceeding. AFI 44-121, para. 3.11.2. 
194 – The Military Commander and the Law 

− Before the assessment, the patient is advised of the ADAPT program's nature, the 

limits of confidentiality, Privacy Act provisions, and the consequences of refusing 

treatment 

− Upon completion of the assessment, the information gathered will form the basis 

for patient diagnosis, treatment planning, and delivery of substance abuse services 

− The 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. 

− The TT is generally comprised of 

-- The commander and/or first sergeant (who must be involved at program entry, 

termination, and any time there are problems treating the patient) 

-- The patient’s immediate supervisor 

-- The ADAPTPM (who chairs the TT meetings) 

-- A certified substance abuse counselor and the therapist currently involved in 

patient care 

− The treatment plan establishes a framework for the patient’s treatment and 

recovery. The plan documents the treatment's nature, extent, and goals and is 

reviewed at least quarterly. 

-- The ADAPTPM makes the treatment decision after consulting with the TT. 

The decision must be made within 15 days after referral to the ADAPT Office. 

-- Although treatment is available for drug abusers and members' dependent 

family members on drugs, as a practical matter, military members will be 

processed for separation and treatment may not be completed 

--- Members being separated are entitled to appropriate medical care, but 

separation action will not be postponed because of participation in the 

ADAPT program 

--- For drug dependent members, at a minimum, the Air Force will provide 

medical care and treatment to detoxify them and refer them for continued 

treatment 

-- Substance abuse treatment falls into two categories 
Personnel Issues for the Commander - Generally - 195 

--- Non-Clinical Services: the first category of treatment, is for those patients 

not meeting the diagnostic criteria for drug abuse or dependence 

---- At a minimum, they are provided 6 hours of awareness education and 

additional counseling can be prescribed. The length of involvement is 

flexible. 

---- Substance abuse awareness training includes information on Air Force 

standards, individual responsibility, and the legal and administrative 

consequences of abuse 

--- Clinical Services: the second category of treatment, is used for patients 

meeting the Diagnostic and Statistical Manual (DSM)-IV diagnostic criteria 

for drug abuse or dependence 

---- The level and intensity of the treatment are determined by the 

ADAPTPM using criteria developed by the American Society of 

Addiction Medicine. The ADAPT program develops procedures to 

evaluate program effectiveness. 

---- Patients are treated in the least restrictive setting possible and the length 

and duration of the treatment will vary according to the patient's needs. 

Program requirements will be tailored to the individual and will include 

awareness education. Family involvement is encouraged. 

---- Patients must adhere to the treatment plan developed by the TT 

---- In appropriate cases, patients may be referred for in-patient treatment to 

a Substance Abuse Recovery Center located on several installations. 

Patients who are drug dependent may be referred to private institutions. 

---- Patients meeting these diagnostic criteria are put on a duty limiting 

profile for 6 months to give them an opportunity to adapt to the 

treatment program. The profile limits their ability to go TDY or PCS. 

--- Patients successfully complete the program when they meet DSM-IV 

criteria for early full remission 

---- The TT determines if the patient successfully completes the program or 

fails 

---- Failure in the program is based on a demonstrated pattern of 

unacceptable behavior, inability or unwillingness to comply with the 

treatment plan, or involvement in a substance abuse related incident 

after initial treatment 
196 – The Military Commander and the Law 

---- Individuals who fail the ADAPT program shall be separated from the 

service 

MANAGEMENT OF DRUG ABUSERS

− Tools available to the unit commander to manage drug abusers include 

-- Line of Duty Determinations, when appropriate (AFI 36-2910) 

-- Action involving security clearance, access to classified information, access to 

restricted areas (AFI 31-501) 

-- Personnel Reliability Program (AFI 36-2104) 

-- Duty assignment review to determine if member should continue in current 

duties 

-- UIF or control roster action based on drug related misconduct or substandard 

duty performance (AFI 36-2907) 

-- Separation under AFI 36-3208 and 36-3206 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 

− Drug abuse is incompatible with military service and airmen who abuse drugs one 

or more times are subject to discharge for misconduct under AFI 36-3208 

-- Drug abuse under AFI 36-3208 is 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 to alter mood 

-- Evidence gotten through urinalysis or from the member in connection with 

initial entry in rehabilitation and treatment may be used to establish a basis for 

discharge 
Personnel Issues for the Commander - Generally - 197 

-- 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 

--- The 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 

DRUG ABUSE AND CIVILIAN EMPLOYEES

− The civilian drug abuse prevention and control program is intended to prevent, 

reduce, and control substance abuse; refer employees to appropriate assistance 

resources; restore employees to full effectiveness; and train managers, supervisors 

and employees on how best to address substance abuse issues 

− AFI 36-810 provides policy and procedures to identify and rehabilitate civilian 

drug abusers 

− All supervisors and personnel must attend training sessions concerning drug abuse, 

be alert to the signs of abuse in subordinates, and report actual or suspected drug 

activity. Local unions and shop stewards are aware of the regulatory program. 

− The unit commander consults the Civilian Personnel Office or the legal office 

regarding civilian employees whose poor performance, discipline, or conduct may 

be caused by drug abuse 

REFERENCES: 

AFI 31-501, Personnel Security Program Management (27 January 2005) 

AFI 34-301, Nonappropriated Fund Personnel Management and Administration (25 

July 1994) 

AFI 36-704, Discipline and Adverse Actions (22 July 1994) 
198 – The Military Commander and the Law 

AFI 36-810, Substance Abuse Prevention and Control (22 July 1994) 

AFI 36-2104, Nuclear Weapons Personnel Reliability Program (5 August 2005) 

AFI 36-2907, Unfavorable Information File (UIF) Program (17 June 2005) 

AFI 36-3208, Administrative Separation of Airmen (9 July 2004) 

AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers (9 June 

2004) 

AFI 36-2910, Line of Duty (Misconduct) Determinations (4 October 2002) 

AFI 44-121, Alcohol and Drug Abuse Prevention and Treatment Program (26 

September 2001) 
Personnel Issues for the Commander - Generally - 199 

ALCOHOL ABUSE

INTRODUCTION

− The Air Force recognizes alcoholism as a primary, chronic disease that affects the 

entire family and that is both preventable and treatable. The Air Force further 

recognizes that alcohol abuse negatively affects public behavior, duty performance, 

and/or physical and mental health. 

-- Treatment is available for alcohol abusers in an effort to minimize the negative 

consequences of such abuse to the individual, family, and the organization 

-- The Air Force attempts to provide treatment and restoration to unrestricted duty 

status whenever possible. If restoration to duty is not appropriate, transitional 

counseling is offered pending separation. 

-- In addition to treatment issues, there are a number of other issues surrounding 

the use of alcohol, including drunk driving, dramshop liability, and drinking 

age 

− The Air Force Alcohol and Drug Abuse Prevention and Treatment (ADAPT) 

Program attempts to identify and provide assistance to military members with 

alcohol problems, but the focus of the ADAPT Program is prevention and clinical 

treatment. The ADAPT Program replaced the Substance Abuse Reorientation and 

Treatment (SART) Program. 

MILITARY MEMBERS

− Commanders and supervisors have primary responsibility for prevention, early 

identification, treatment, and discipline of substance abusers. The commander 

should do the following 

-- Observe and document the performance and conduct of subordinates, and direct 

the immediate supervisors to do the same 

-- Evaluate all potential or identified abusers through the evaluation process of 

AFI 44-121 

-- Provide appropriate incentives to encourage members to seek help for problems 

with alcohol without fear of negative consequences 

-- Recognize their responsibility for all personnel including administrative and 

disciplinary actions pertaining to any of their members involved in the ADAPT 

program 
200 – The Military Commander and the Law 

-- Understand that their involvement in treatment is critical, and they provide the 

authority to implement treatment when the member refuses to comply with 

treatment decisions 

− Alcohol abusers are identified through several channels, including 

-- Self-Identification: The Air Force provides nonpunitive assistance to members 

seeking help in dealing with alcohol abuse 

-- Commander referral

--- Commanders who suspect alcohol abuse shall refer members for evaluation. 

Commanders must refer the member for an evaluation if alcohol is, or is 

suspected to be, a contributing factor in any incident. Some instances 

which could lead to referral include the following 

---- Deteriorating duty performance 

---- Errors in judgment 

---- Excessive absenteeism or lateness for duty 

---- Misconduct 

---- Unacceptable social behavior 

---- Incidents involving domestic violence or disturbances 

---- Incidents highlighted in DD Form 1569, Incident Complaint Record, 

involving alcohol 

--- If a commander refers an individual for an evaluation, the member must be 

told 

---- The reason for the evaluation 

---- The evaluation is not punitive in nature; and 

---- The member must report in uniform to the assessment appointment at 

the appointed date and time 

--- Coordinate with the staff judge advocate (SJA) before directing required 

drug testing on members involved in an alcohol-related incident, exhibiting 

bizarre behavior, or who are reasonably suspected of drug use. 

Commanders must order the test within 24 hours of the incident and should 
Personnel Issues for the Commander - Generally - 201 

attempt to get the individual’s consent prior to directing the drug test. 

Blood alcohol tests are encouraged when alcohol is thought to be a factor in 

any incident. 

--- The commander ensures the member is referred within 7 calendar days after 

notification of the suspected alcohol incident 

-- Incident to medical care

--- Health care providers should be alert for potential indicators of alcohol 

related problems 

--- Medical personnel must notify the 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 an injury or illness that may be the result of 

substance abuse 

---- Is suspected of abusing substances; or 

---- Is admitted as a patient for alcohol (or drug) detoxification 

− Substance abuse assessment 

-- ADAPT staff members evaluate all members suspected of alcohol abuse in 

order to help the commander understand the extent of the alcohol 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 trial by court-martial or considered on the issue of service 

characterization in an administrative discharge proceeding. AFI 44-121, para 

3.11.2. 

-- Before the assessment, the patient is advised of, among other things, the nature 

of the ADAPT Program, the limits of confidentiality, Privacy Act provisions, 

and the consequences of refusing treatment 

-- Upon completion of the assessment, the information gathered will form the 

basis for patient diagnosis, treatment planning, and delivery of substance abuse 

services 
202 – The Military Commander and the Law 

-- In cases of DUI/DWI, the ADAPT provider will give the assessment results to 

the patient’s commander for consideration prior to any decisions by the 

commander regarding the disposition of such a case 

-- The 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 for the client after examining all the facts presented. In 

particular, the TT develops the treatment plan. 

--- The TT is made up of 

---- The commander and/or first sergeant (who must be involved at program 

entry, termination, and any time there are problems treating the patient) 

---- The patient’s immediate supervisor 

---- The ADAPT Program Manager (who chairs the TT meetings) 

---- A certified substance abuse counselor 

---- The therapist currently involved with the care of the patient 

---- Any other individuals deemed necessary (in some cases, the patient may 

also be on the TT) 

− The treatment plan, developed by the TT, is used to establish a framework for the 

patient’s treatment and recovery. The plan is individual specific and it documents 

the nature and extent of the treatment and the goals of treatment. The plan is 

reviewed at least every quarter to ensure effectiveness. 

-- The ADAPT Program Manager makes the treatment decision after consulting 

with the TT. The decision must be made within 15 days after referral to the 

ADAPT Office. 

-- Substance abuse treatment falls into two categories: 

--- Non-Clinical services: The first category of treatment, is for those patients 

not meeting the diagnostic criteria for alcohol abuse or dependence 

---- At a minimum, they are provided 6 hours of awareness education and 

additional counseling can be prescribed. Length of involvement is 

flexible. 

---- Substance abuse awareness education includes, among other things, 

information on individual responsibility, Air Force standards, and the 

legal and administrative consequences of abuse 
Personnel Issues for the Commander - Generally - 203 

---- Members being separated are entitled to appropriate medical care, but 

separation action will not be postponed because of participation in the 

ADAPT Program 

--- Clinical services: The second category of treatment, is used for patients 

meeting the Diagnostic and Statistical Manual (DSM)-IV diagnostic criteria 

for alcohol abuse or alcohol dependence 

---- The ADAPT Program Manager, using criteria developed by the 

American Society of Addiction Medicine (ASAM), determines the level 

and intensity of the treatment. The local ADAPT Program develops 

procedures to evaluate the effectiveness of the program. 

---- Patients are treated in the least restrictive setting possible and the length 

and duration of the treatment will vary according to the needs of the 

patient. Program requirements will be tailored to the individual and will 

include awareness education (minimum of 6 hours). Family 

involvement is encouraged. 

---- Patients must adhere to the treatment plan developed by the TT 

---- In appropriate cases, patients may be referred for in-patient treatment to 

one of several Substance Abuse Recovery Centers (SARC) which are 

located on several different installations 

---- Total abstinence is a critical treatment goal, but relapses into drinking 

behavior are not uncommon and are to be anticipated. Drinking, by 

itself, is not grounds for program failure. 

---- Patients meeting these diagnostic criteria are put on a duty-limiting 

profile for 6 months to give them an opportunity to adapt to the 

treatment program. The profile limits their ability to go TDY or PCS. 

--- Patients successfully complete the program when they meet DSM-IV 

criteria for early full remission 

---- The TT makes the determination whether the patient successfully 

completes the program or fails 

---- Failure in the program is based on a demonstrated pattern of 

unacceptable behavior, inability or unwillingness to comply with the 

treatment plan, or involvement in an alcohol related incident after initial 

treatment 
204 – The Military Commander and the Law 

---- Individuals who fail the ADAPT Program shall be separated from the 

service 

-- Management of Alcohol Abusers 

--- Commanders have a variety of tools available to assist in managing alcohol 

abusers. These include: line of duty determination, if appropriate; action 

related to security clearances, access to classified information, and access to 

restricted areas (AFI 31-501); Personnel Reliability Program (AFI 36-

2104); unfavorable information file or control roster action (AFI 36-2907); 

separation from service (AFI 36-3208 and 36-3206); withholding of 

promotion (AFI 36-2501 and 36-2406); administrative demotion (AFI 36-

2503) and denial of reenlistment (AFI 36-2606). 

--- Orders not to consume alcohol will be valid only if there is a reasonable 

connection between the order and military duties. Therefore, such orders 

must be carefully tailored. Always consult with your SJA before issuing an 

order not to consume alcohol. 

CIVILIAN EMPLOYEES

− The Air Force attempts to prevent, reduce, and control alcoholism and drinking 

problems through education and training of employees and supervisors. The Air 

Force assists employees in finding rehabilitative services and treatment in an effort 

to restore civilian employees to full effectiveness. 

− AFI 36-810 and provides policy guidance and outline procedures to identify and 

rehabilitate civilian employees who abuse alcohol 

− Indicators of possible alcohol related problems include: absenteeism, late for work, 

extended lunch periods, unexcused absences, deteriorating job performance, 

marked changes in personal appearance, chronic lying, behavioral changes, and 

misconduct 

− Under the Rehabilitation Act, alcohol abuse may be a physical handicap that 

entitles the employee to special protection, i.e., reasonable accommodation. 

Consult with your SJA and Civilian Personnel Officer. 

LEGAL ASPECTS OF ALCOHOL RELATED ISSUES

− Drunk Driving 

-- Operation of a motor vehicle while under the influence of alcohol (DUI) or 

while intoxicated (DWI), on or off the installation, is a serious offense and is 

incompatible with Air Force standards 
Personnel Issues for the Commander - Generally - 205 

--- Military members are subject to nonjudicial punishment under Article 15 or 

a court-martial for a violation of Article 111, 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 

-- Individuals identified as alcohol abusers as a result of a DUI/DWI will receive a 

minimum of 6 hours of awareness education before base driving privileges are 

reinstated 

− Minimum 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 

--- At Air Force installations located within approximately 50 miles from a 

neighboring state that has a lower drinking age, the minimum base drinking 

age may be lowered to match that of the neighboring state to reduce the 

likelihood that members will drive while intoxicated 

--- When an entire unit marks a unique or nonroutine military occasion on a 

military installation, the minimum drinking age for attendees at a particular 

unit gathering may be lowered 

-- Military personnel 18 years old or older may purchase, serve, sell, possess, and 

consume alcoholic beverages outside the United States, its territories, and 

possessions unless a higher drinking-age requirement exists in accordance with 

applicable status of forces or country-to-country agreements. A higher drinking 

age requirement may also be imposed based on the local situation as 

determined by the installation commander or the senior on-site unit commander 

when there is no installation commander. Coordination with any host 

commander is required. 

− Dramshop Liability 
206 – The Military Commander and the Law 

-- Under the dramshop theory of liability (which is generally a matter of state 

law), a server of alcoholic beverages (an individual, activity, or facility) has a 

duty to refuse to serve anyone who is or appears to be intoxicated 

-- Liability may extend to damage the intoxicated person causes to property, 

others, and himself 

-- Installations must, among other things 

--- Publish operating instructions (OIs) prohibiting serving alcohol to 

intoxicated persons 

--- Ensure each server annotates an AF Form 971, Supervisor's Record, stating 

the server is aware of the OI and agrees to enforce its provisions 

--- Establish controls to protect intoxicated persons and Air Force assets 

--- Report alcohol related incidents that may lead to claims (for or against the 

government) to the SJA 

--- Not permit personal supplies of alcohol in buildings or grounds that serve 

alcohol (i.e. golf course) 

--- Not provide coupons for reduced prices on alcoholic beverages 

--- May serve complimentary nonalcoholic beverages to designated drivers 

− Private Organizations may not sell or serve alcoholic beverages on Air Force 

installations 

REFERENCES: 

UCMJ art 111 

UCMJ art 15 

AFI 31-501, Personnel Security Program Management (7 January 2005) 

AFI 34-219, Alcoholic Beverage Program (9 September 1998) 

AFI 36-810, Substance Abuse Prevention and Control (22 July 1994) 

AFI 36-2406, Officer and Enlisted Evaluation Systems (15 April 2005) 

AFI 36-2501, Officer Promotions and Selective Continuation (16 July 2004) 

AFI 36-2503, Administrative Demotion of Airmen (20 July 1994) 

AFI 36-2606, Reenlistment in the United States Air Force (1 November 2001) 

AFI 36-2907, Unfavorable Information File (UIF) Program (17 June 2005) 

AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers (9 June 

2004) 

AFI 36-3208, Administrative Separation of Airmen (9 July 2004) 

AFI 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program

(26 September 2001) 
Personnel Issues for the Commander - Generally - 207 

FREEDOM OF INFORMATION ACT

The Freedom of Information Act (FOIA) is a disclosure statute that permits access to 

information. 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. 

− It applies to the Department of Defense, Air Force, and other federal executive 

agencies 

− Enacted in 1966, it 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 listed below 

FOIA EXEMPTIONS 

− There are nine exemptions under the FOIA, which provide a basis for withholding 

information (of which seven apply to the Air Force) 

-- Classified information (Confidential, Secret, Top Secret); note that "For 

Official Use Only" is not a security classification 

-- Those matters relating solely to the internal personnel rules and practices of the 

agency; this exemption has two categories 

--- High 2: Release of these records would substantially hinder the effective 

performance of the agency's mission by allowing the requester to 

circumvent agency practices 

--- Low 2: Trivial records of a housekeeping nature that serve no public 

interest 

-- Information exempted by another statute (e.g., drug rehabilitation information) 

-- Trade secrets, or commercial or financial information submitted on a privileged 

or confidential basis 

-- Interior intra-agency documents normally privileged in the civil court context 

(e.g., attorney work-product, pre-decisional policy discussions, etc.) 

-- Law enforcement information (e.g., information that would interfere with 

enforcement, confidential sources) 

-- Information in personnel, medical, and similar files which, if disclosed to the 

requester, would result in a clearly unwarranted invasion of personal privacy 
208 – The Military Commander and the Law 

--- 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. 

-- Information not normally releasable as an unwarranted invasion of personal 

privacy includes: home addresses, home phone numbers, social security 

numbers, etc. 

FOIA REQUESTS 

− IF YOU RECEIVE A FOIA REQUEST, IMMEDIATELY TAKE IT 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 (e.g., cite "the law," "the regulation") 

-- Reasonably describe the desired record 

-- Give assurances to pay any required fees or explain why a waiver is appropriate 

− Requests may not be prepared using government resources or sent through official 

mail 

FOIA PROCESSING 

− Written request received at base FOIA office is sent to the OPR for initial review 

− After initial review, forwarded to JA for comment 

-- If JA recommends approval, local release authority can approve request and 

release information 

-- If JA recommends denial, then a legal review is attached and the case is 

forwarded immediately to the Initial Denial Authority (IDA) (MAJCOM/CC or 

designee) 
Personnel Issues for the Commander - Generally - 209 

− 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. 

− Appeals are taken to the SAF/GCA for resolution after being reassessed by the 

MAJCOM FOIA office 

− Requester may file suit in federal district court for release of information if the 

appeal results in denial 

− Agencies are not required to create, compile, or obtain records not in their 

possession, but must apply a reasonableness standard if extracting data from an 

existing record to comply with the request would be a "business as usual approach" 

− 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. 

− 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; can be 

processed quickly 

-- Complex requests: Ones that include massive responsive records, cause 

significant impact on units, require coordination from multiple offices, and 

include material that is classified or privileged, or originated from a nongovernment source; take substantial time to process 

-- 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. Denial of a 

request for expedited processing, whether initially or on appeal, is subject to 

judicial review. A "compelling need" means failure to receive the records in an 

expedited manner reasonably poses an imminent threat to the life or physical 
210 – The Military Commander and the Law 

safety of an individual. 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 requested three or more 

times per quarter, within reason—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 one year of 

creation 

REFERENCES: 

5 U.S.C. § 552, Freedom of Information Act 

DoDD 5400.7, DoD Freedom Of Information Act (FOIA) Program (28 October 2005) 

DoD Regulation 5400.7/Air Force Supplement, DoD Freedom of Information Act 

Program (24 June 2002) 
Personnel Issues for the Commander - Generally - 211 

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 that 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 therein. 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, regardless of who 

establishes or maintains the records, 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 SSN); 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 

-- 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; the 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. The 

PAS may also be verbally told to the individual. It includes the authority for 

collecting the information, whether disclosure is voluntary or mandatory, routines 

uses of the information, and consequences of not providing the information, if any. 

DISCLOSURE PROCEDURES

− To the subject of the record 

-- Subjects of PA records and their designated representatives may request copies 

of their records 
212 – The Military Commander and the Law 

--- 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, system manager must notify 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 

-- Denials 

--- For a record to be denied, it must be covered by an exemption published in 

the Federal Register as a final rule 

---- 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 legal office for guidance on releasing third party 

information in a PA record 

--- System managers send recommendations for denials to their servicing legal 

office and PA office for review within five days of receiving the request 

--- MAJCOM commanders take action on recommended denials 

-- Commonly encountered limits on release to 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 
Personnel Issues for the Commander - Generally - 213 

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 and DoD 6025.18-R for additional guidance regarding 

medical records 

− To third parties 

-- The PA requires written consent from the subject before releasing information 

unless one of 12 exceptions applies. Use this checklist to determine whether 

release to a third party is appropriate. 

-- Do not place PA information in areas where individuals without an official 

need to know will have access (including common drives on computer systems) 

-- 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) 

--- 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 (requires written request from head of the agency) 

--- To an individual or agency requiring the information for compelling health 

or safety reasons (the subject of the records need not be at risk) 

--- To the Congress 

--- To the Comptroller General 

--- To a court of competent jurisdiction in response to a court order from the 

judge 
214 – The Military Commander and the Law 

--- To a consumer reporting agency (see 31 U.S.C. § 3711 for guidelines), if 

allowed by system of records notice 

SPECIAL HANDLING REQUIREMENTS

− Medical Records of Minors 

-- If overseas and the minor is between ages 15 and 17, inclusive, 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 legal office 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 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 attorneys fees, court costs, and 

damages of $1,000 or more 

-- Individuals may be criminally prosecuted for willful, unauthorized disclosures 

of PA information or maintenance of an unauthorized system of records; this is 

a misdemeanor offense carrying a maximum fine of $5,000 

REFERENCES: 

5 U.S.C. § 552a, Privacy Act 

31 U.S.C. § 3711 

DoD 6025.18-R, DoD Health Information Privacy Regulation (24 January 2003) 

AFI 33-332, Privacy Act Program (29 January 2004) 

AFI 41-210, Patient Administration Functions (22 March 2006) 
Personnel Issues for the Commander - Generally - 215 

ARMY AND AIR FORCE EXCHANGE SERVICE AND 

COMMISSARY BENEFITS

Although Department of Defense Directives and service regulations govern exchange 

and commissary benefits, commanders exercise some discretion in granting, 

suspending or revoking privileges 

EXCHANGE PRIVILEGES

− 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 

to 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 personnel and their 

family members, retired personnel and their family members, and others, such 

as Medal of Honor recipients and their family members 

-- Unlimited exchange privileges may be extended to government departments or 

agencies outside the Department of Defense (DoD) when 

--- The local commander determines the desired supplies or services cannot be 

conveniently obtained elsewhere, and 

--- The 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 nonforeign areas outside CONUS, e.g., Alaska, Hawaii, Puerto Rico, and 

overseas 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 
216 – The Military Commander and the Law 

concerned upon request by the installation commander through command 

channels 

ABUSE OF EXCHANGE PRIVILEGES

− Exchange patrons are prohibited from 

-- 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 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 six months for 

shoplifting, employee pilferage and intentional presentation of dishonored 

checks 

-- The individual concerned will be provided notice of the charges and the 

opportunity to offer disproving 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

− Commissary: 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. 
Personnel Issues for the Commander - Generally - 217 

− 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 

-- 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 

-- Violations of restrictions shall provide a basis for suspension of commissary 

privileges or permanent revocation of commissary privileges 

-- Disciplinary action under the UCMJ, Civil Service, or other pertinent 

regulations or agreements should be taken against the individual if the 

violations warrant such action 

AGENTS OF AUTHORIZED USERS

− The wing commander can extend use of the exchange and commissary to an agent 

of an authorized user, when the user is not capable of shopping 

REFERENCES: 

DoDD 1330.17, Military Commissaries (13 March 1987) 

DoD 1330.17-R, Armed Services Commissary Regulations (April 1987) (C3, 3 Aug 

1990) 

AFJI 34-210, Army and Air Force Exchange Service Operating Policies (15 December 

1992) 

AFJI 34-211, Army and Air Force Exchange Service General Policies (17 June 1988) 

AFI 36-3026(I), Identification Cards for Members of the Uniformed Services, Their 

Eligible Family Members, and Other Eligible Personnel (20 December 2002) 
218 – The Military Commander and the Law 

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. Designees may include 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-base 

-- Comply with all laws and regulations governing motor vehicle operations on 

base 

-- Comply with installation vehicle registration requirements 

-- Possess, produce on demand, and comply with restrictions contained in a valid 

state driver's license (or host nation/SOFA license); possess and produce on 

demand proof of ownership or state registration; properly display vehicle safety 

inspection stickers, if required 

-- Comply with the minimum requirements of the motor vehicle insurance laws 

and regulations in the state where the installation is located 

− Operators of GOVs must have proof of authorization to operate the vehicle 

− To operate a POV on the installation, an individual must register the vehicle with 

Security Forces. To do so, an individual must 

-- Possess a valid driver's license 

-- Possess a valid state registration for the state in which the vehicle is registered 

-- Present proof of compliance with the minimum vehicle insurance requirements 

for the state in which the installation is located 

-- Present proof of satisfactory completion of a vehicle safety inspection by the 

state in which the vehicle is registered or the state in which the installation is 

located, if an inspection is required in either state 

− If the installation is located in a state not requiring insurance, the installation 

commander may set reasonable liability insurance requirements for registration and 

operation of POVs within the confines of the installation 
Personnel Issues for the Commander - Generally - 219 

IMPLIED CONSENT

− In return for accepting the privilege of operating a motor vehicle on a military 

installation a driver gives implied consent in a number of areas, including 

-- 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 any impaired driving offense committed while driving or in physical 

control of a motor vehicle on an Air Force installation 

-- Consent to the removal and temporary impoundment of their POVs if it is (1) 

illegally parked; (2) interfering with traffic 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

− The installation commander can administratively suspend or revoke installation 

driving privileges. A suspension up to 12 months may be appropriate if a driver 

continually violates installation parking standards, or habitually violates other 

nonmoving standards. Installation commander will immediately suspend 

installation driving privileges pending resolution of an intoxicated driving incident 

under any of the circumstances outlined below 

-- 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 0.10 percent by volume or higher, or in excess of 

the applicable BAC or BRAC level in the local civilian jurisdiction, whichever 

is lower 

-- Receipt of an arrest report or other official document reasonably showing an 

intoxicated driving incident occurred 

REVOCATION

− The installation commander will immediately revoke driving privileges for a period 

of not less than one year in any of the following circumstances 

-- A person is lawfully detained for intoxicated driving and refuses to submit to or 

complete tests to measure blood alcohol or drug content 
220 – The Military Commander and the Law 

-- Conviction, nonjudicial punishment, or a military or civilian administrative 

action resulting in the suspension or revocation of a driver's license for 

intoxicated driving 

-- The 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 

impartially supervise traffic offenses. 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. 

− The individual has the right to a hearing before a designated hearing officer. Must 

notify the individual of the right to a hearing, then it is up to the individual to 

request a hearing within the proscribed 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, a refusal to complete 

chemical testing, video tapes, written statements, field sobriety test results, or other 

evidence. 

− Civilian offenders may be prosecuted in Federal Magistrate's Court for on-base 

traffic offenses. Additionally, federal regulations (32 C.F.R. § 210.3(c)) authorize 

installation commanders to prescribe vehicular and pedestrian traffic rules (but such 

rules may require notification and negotiation with the local union). 

REFERENCES: 

32 C.F.R. § 210.3(c) 

AFI 31-101, The Air Force Installation Security Program (FOUO) (1 March 2003) 

AFI 31-204, Air Force Motor Vehicle Traffic Supervision (14 July 2000) 

AFI 51-905, Use of Magistrate Judges for Trial of Misdemeanors Committed by 

Civilians (1 June 1998) 

AFPD 31-2, Law Enforcement (6 May 1994) 
Personnel Issues for the Commander - Generally - 221 

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 whose presence disrupts good order and discipline. This 

authority enables a commander to fulfill their responsibilities to protect personnel and 

property, to maintain good order and discipline, and to ensure the successful, 

uninterrupted performance of the Air Force mission. 

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 alleging a Constitutional tort. 

− An installation commander may not delegate to a subordinate the authority to debar 

an individual from an installation 

− Who is subject to debarment?

-- Civilians may be debarred from a military installation 

-- Dependent family members and retirees may be debarred, but they must be 

granted access for medical care (a statutory right – 10 U.S.C. §§ 1076, 1074) 

-- Civilian employees may be debarred, but they should be removed from federal 

service before ordering debarment 

--- Otherwise, the employee will be sitting at home collecting a salary 

--- Check with the Civilian Personnel Office to determine if the local collective 

bargaining agreement contains 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. 

-- 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. 
222 – The Military Commander and the Law 

--- Possession, distribution, or use of drugs may be good cause for debarment 

--- Exceeding weight standards, on the other hand, probably is not good cause 

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 (debarment 

letter) should state the reason for and period of the debarment. 

− Determining the debarment period is a matter of discretion 

-- The commander should consider the individual, the reason for the debarment, 

and the need for good order, discipline, and security. The bottom-line is what is 

reasonable given all the circumstances. 

-- The length of the debarment period should be stated on the notification 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. 

− The 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 18 

U.S.C. § 1382 

− Maximum penalty for violation of the law is six months confinement and a $500 

fine 

REFERENCES: 

18 U.S.C. § 1382 

DoDI 5200.8, Security of DoD Installations and Resources (10 Dec 2005) 

AFI 31-101, The Air Force Installation Security Program (1 March 2003) 

OpJAGAF 1998/69, Barment 
Personnel Issues for the Commander - Generally - 223 

FREE SPEECH, DEMONSTRATIONS, AND OPEN HOUSES

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 dissident and protest activities. 

COMMANDER RESPONSIBILITIES

− Commanders must preserve the 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 advocates. 

-- 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 espouse 

supremacist 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 

-- Air Force members may complain and request redress of their grievances under 

Article 138, UCMJ, and through the Inspector General Complaint System. 

They may also petition any member of Congress without fear of reprisal. 

CONTROLLING OR PROHIBITING DEMONSTRATIONS AND PROTEST ACTIVITIES

− Commanders may also take measures to control or prevent demonstrations and 

protest activities within the installation 

-- When faced with demonstrations or related activities on an Air Force 

installation you may prohibit them if 
224 – The Military Commander and the Law 

--- They interfere with mission accomplishment, or 

--- They present a clear danger to loyalty, discipline, or morale of your 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 Article 92 of the UCMJ. 

POLITICAL ACTIVITIES BY MEMBERS OF THE AIR FORCE

− 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 Armed Forces 

− For a list of prohibited and permitted political activities, see AFI 51-902, para. 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 

preventing political or ideological speech. "Closed" means not a public forum for 

protests or demonstrations, such as community parks or sidewalks. 

-- 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. 

-- 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 
Personnel Issues for the Commander - Generally - 225 

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: 

AFI 51-902, Political Activities by Members of the U.S. Air Force (1 January 1996) 

AFI 51-903, Dissident and Protest Activities (1 February 1998) 

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

Justice (30 June 1994) 

AFI 90-301, Inspector General Complaints Resolution (8 February 2005) 

Persons for Free Speech at SAC, 675 F.2d 1010 (8th Cir. 1982), cert. denied, 549 U.S. 

1092 (1982) 
226 – The Military Commander and the Law 

PRIVATE ORGANIZATIONS

DEFINITION

− A private organization 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 

− Private organizations 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. 

− Private organizations operate on an Air Force installation with the written consent 

of the installation commander (or designee) 

− 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 3-month period, the activity/organization must become a PO, 

discontinue on-base operations, or reduce its current assets 

OPERATING RULES

− Each private organization must be approved in writing by the installation 

commander or his/her designee 

− The Services Squadron Commander or Director monitors and advises all private 

organizations and directs the Resource Management Flight Chief to keep a file on 

each PO 

− The Resources Management Flight Chief reviews each private organization 

annually to make sure documents, records and procedures are in order 

− Private organizations must be self-sustaining and cannot receive direct financial 

assistance from a NAFI in the form of contributions, dividends or donations 

− Private organizations with gross revenues of $250,000 or more must have an annual 

audit done by a Certified Public Accountant (CPA). Private organizations with 

gross revenues of $100,000 but less than $250,000 must have an annual financial 

review conducted by an accountant (CPA not required). Private organizations 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. 
Personnel Issues for the Commander - Generally - 227 

− The installation staff chaplain should coordinate on requests to establish religiously 

oriented private organizations 

− Private organizations may not unlawfully discriminate on any proscribed basis 

(race, color, sex, marital status, age, religion, national origin, political affiliation, or 

physical handicap) 

− Each private organization has the responsibility of obtaining adequate insurance or 

waiver thereof by the installation commander (or designee). A waiver of the 

insurance requirement will not protect the private organization or its members from 

valid claims or successful suits. 

− Private organizations will not engage in activities that duplicate or compete with 

any base Services activity, NAFI, or the Army and Air Force Exchange Service 

− Private organizations must comply with all applicable federal, state and local laws 

governing such activities. Private organizations desiring tax-exempt status must 

file an application with the IRS. To qualify as tax-exempt organizations for federal 

tax purposes, private organizations must be organized for one or more of the 

purposes specifically outlined in the Internal Revenue Code. 

− Private organizations 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, paragraph 10.16, and the Joint Ethics 

Regulation. 

− Private organizations are not authorized to sell alcoholic beverages 

− Private organizations 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 (2) 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/organizations so long as there is no actual resale. 

REFERENCE: 

AFI 34-223, Private Organization (PO) Program (11 August 2003)

Personnel Issues for the Commander – Military Members - 229 

CHAPTER SEVEN: 

PERSONNELISSUES FOR 

THE COMMANDER – MILITARY MEMBERS 

Humanitarian Reassignments/Deferments.................................................................230 

The Air Force Urinalysis Program ............................................................................232 

Professional Relationships

Fraternization and Unprofessional Relationships................................................239 

Hazing..................................................................................................................241 

Finances

Personal Bankruptcy............................................................................................243 

Financial Responsibility ......................................................................................244 

Bad Checks..........................................................................................................247 

Family

Child Abuse, Child Neglect, and Spousal Abuse ................................................248 

Adoption Reimbursement....................................................................................251 

Paternity Claims...................................................................................................253 

Civilian Jury Service by Military Members ..............................................................254 

Medical and Mental Health Issues

Acquired Immune Deficiency Syndrome (AIDS)...............................................256 

Anthrax Immunizations.......................................................................................260 

Limited Privilege Suicide Prevention Program...................................................263 

Commander Directed Mental Health Evaluations...............................................266 

Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule ....271 

Duty Status/Fitness for Duty

Personnel Reliability Program.............................................................................275 

Lautenberg Amendment ......................................................................................279 

Conscientious Objection to Military Service.......................................................282 

Homosexual Conduct...........................................................................................285 

Fitness Program ...................................................................................................293 

Unauthorized Absence.........................................................................................299 

Line of Duty Determinations...............................................................................302 

Officer Grade Determinations .............................................................................305 

Tattoos/Brands, Body Piercing, and Body Alteration ...............................................307 
230 – The Military Commander and the Law 

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. 

This instruction applies to both officer and enlisted members. 

− The service member must be effectively used in the duty (officer) or control 

(enlisted) AFSC because a move may not be made at government expense when it 

is based solely on humanitarian reasons. There must be a valid vacant 

authorization at the gaining base. 

− To be eligible for a humanitarian action, several conditions must be met, including 

-- A vacancy must exist at the new duty station and member must meet service 

retainability requirements for PCS 

-- The problem must be more severe than those normally encountered by 

comparable Air Force members 

-- The member's presence is absolutely essential to alleviate the problem, and 

-- The problem can be resolved within a reasonable period of time (normally 12 

months) 

− While not inclusive, requests substantiating problems arising from any of the 

following circumstances usually warrant approval 

-- Recent death (within 12 months) of member's spouse or child/stepchild under 

age 18, including miscarriage of 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 

-- 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 

-- Spouse abandons dependents while the service member is serving an 

unaccompanied overseas tour 
Personnel Issues for the Commander – Military Members - 231 

-- Sexual abuse or assault of a dependent when it would be detrimental to stay in 

the area where the incident occurred 

− 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 probable that 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 MPF assignments section, which will 

provide the member with the information needed to submit a formal application. 

− Requests are submitted through the AFPC Contact Center via vMPF with 

supporting documentation. The burden is on the applicant to provide sufficient 

justification for the request. 

− AFPC/DPAPO is the approval/denial authority 

REFERENCE: 

AFI 36-2110, Assignments, Attachment 24 (20 April 2005) 
232 – The Military Commander and the Law 

THE AIR FORCE URINALYSIS PROGRAM

The primary 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 

– Other objectives of the program include 

-- 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 

– 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 

-- By failing to follow proper procedures, use of urinalysis test results in Uniform 

Code of Military Justice (UCMJ) or administrative actions may be limited or, in 

some cases, prohibited 

– With the exception of urine samples that are tested for steroids and other 

nonstandard drugs of abuse, all Air Force member urine samples are tested at the 

Air Force Drug Testing Laboratory (AFDTL), Brooks City Base, Texas. Testing 

for all drugs is coordinated through the AFDTL. 

-- The AFDTL tests for the presence of cocaine, marijuana, 

amphetamine/methamphetamine (and derivatives, to include MDMA [Ecstasy], 

MDA and MDEA), 6-AM (heroin metabolite) and PCP 

-- The AFDTL alternatively “pulse” tests (10% minimum) specimens for the 

presence of opiates (codeine, morphine), opioids (oxycodone and 

oxymorphone) and LSD 

– 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 three tests before it may be considered 

positive: screen, rescreen, and confirmation 
Personnel Issues for the Commander – Military Members - 233 

-- Only samples that test positive above the DoD prescribed minimum level on 

every test are reported as positive. Samples not testing positive on any screen 

or on the confirmation test are discarded. 

--- Screen Test ("Immunoassay Test”) 

---- Kinetic Interaction of Microparticles in Solution (KIMS) is used to 

test for the presence of marijuana, cocaine, opiates, PCP and 

amphetamines 

---- Enzyme multiplied immunoassay (EMIT) is used to test for the 

presence of LSD 

--- Adjunct Testing 

---- The AFDTL tests all specimens that screen positive for 

amphetamines/methamphetamines for the presence of the “designer 

drugs” Ecstasy (MDMA), Adam (MDA) and Eve (MDEA) using the 

TDx System or fluorescence polarization immunoassay (FPIA) 

technology 

---- The AFDTL tests all specimens that screen positive for opiates for 

the presence of heroin (6-MAM) also using the TDx system 

---- Solid-phase radioimmunoassay (RIA) is used as an additional test for 

the presence of LSD before rescreening 

--- Rescreen Test 

---- KIMS is used to test for the presence of marijuana, cocaine, opiates, 

PCP, and amphetamines 

---- Enzyme multiplied immunoassay (EMIT) is used to test for the 

presence of LSD 

--- Confirmation Test 

---- Gas chromatography/mass spectrometry (GC/MS) is used for all 

confirmation testing 

---- The GC/MS is the industry "gold-standard" for drug testing 

---- It is extremely accurate in determining the type and amount of a drug 

or drug metabolite present in a person's system 

--- Additional Testing 

---- Specimens that confirm above the DoD “cut-off” for amphetamines 

and methamphetamines are also subjected to a “d/l isomer” analysis 
234 – The Military Commander and the Law 

– Five bases upon which to conduct urinalysis testing: inspection, commanderdirected, probable cause, consent, medical care 

-- Inspection testing 

--- Urine specimens may be ordered as part of an inspection under Military 

Rule of Evidence (M.R.E.) 313(b) 

--- The primary purpose of an inspection must be to determine if the command 

is functioning properly, if proper standards of readiness are maintained, and 

if personnel are present, fit and ready for duty 

--- Individual members may not be singled out for inspection 

--- An entire unit or a part of the unit may be inspected, or you may participate 

in a base-wide random selection process 

--- Do not use an inspection when you suspect a specific individual of drug 

abuse. Consult with the staff judge advocate. 

--- Coordinate inspections with the Drug Demand Reduction Program 

Manager. Do not announce the inspection in advance to those being 

inspected. 

--- Inspection testing is the best deterrent presently available against drug 

abuse 

--- Results may be used for UCMJ or administrative actions, including adverse 

characterization of administrative discharges 

-- Commander-directed 

--- Appropriate where the member displays aberrant, 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 

--- Test results cannot be used to take UCMJ action, such as court-martial or 

Article 15; or to adversely characterize administrative discharges 
Personnel Issues for the Commander – Military Members - 235 

-- Probable cause 

--- Requires a search and seizure authorization from a military magistrate or a 

neutral and detached commander to seize a urine specimen 

--- There must be a reasonable belief illegal drugs, or drug metabolites, will be 

present in the individual's urine 

--- Always coordinate with the staff judge advocate 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 

-- Consent 

--- Prior to a probable cause or commander-directed urinalysis test, first ask the 

member if he or she will consent to a urinalysis test 

--- 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 

--- 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 routine or emergency 

medical treatment, including routine physical examinations, 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 report of a positive test, regardless of the category of test 

used, immediately contact the staff judge advocate 

-- AFOSI or SFS will schedule an interview with the member. Do not advise the 

member in advance of the interview or of the positive test result. 
236 – The Military Commander and the Law 

ACTIONS AUTHORIZED BY POSITIVE DRUG TEST RESULTS

AFI 44-120, para. 19, Table 1 

NOTES: 

1. Administrative actions include, but are not limited to, letters of admonishment, counseling 

and reprimands, denial of re-enlistment, 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 inspections 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 an administrative separation. 

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, removal from PRP, removal of 

restricted area badges, etc. Urinalysis tests of individuals following entry into the ADAPT 

Program are for valid medical purposes. Individuals in the ADAPT Program may be 

disciplined under the UCMJ when independent evidence of drug use is obtained. 

6. Urine specimens obtained from an examination for a valid medical purpose may be used for 

any purpose. 

REFERENCES: 

MIL. R. EVID. 312-15 (2005) 

DoDD 1010.1, Military Personnel Drug Abuse Testing Program, 9 December 1994 

with Change 1 (11 January 1999) 

DoD Instruction 1010.16, Technical Procedures for the Military Drug Abuse Testing 

Program (9 December 1994) 

AFI 44-120, Drug Abuse Testing Program (1 July 2000) 

AFI 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program

(26 September 2001) 

Basis of Test UCMJ 

USE 

AFFECTS DISCHARGE 

CHARACTERIZATION 

ADMINISTRATIVE 

ACTION (See Note 1)

Inspection Military Rule of 

Evidence (Mil. R. Evid.) 313 

(See Note 2) 

Yes Yes Yes 

Voluntary Consent – Mil. R. 

Evid. 314(e) 

Yes Yes Yes 

Probable Cause – Mi. R. Evid. 

315 316 (See Note 3) 

Yes Yes Yes 

Commander Directed 

(See Note 4) 

No No Yes 

Self Identification, Initial 

Testing (See Note 5) 

No No Yes 

Valid Medical Purpose – Mil. 

R. Evid. 312(f) (See Note 6) 

Yes Yes Yes 
Personnel Issues for the Commander – Military Members - 237 

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 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 Demand Reduction Program Manager (DRPM)? 

– Do you coordinate all inspections and searches (i.e., unit sweeps, consent, probable 

cause, and commander-directed testing) with the staff judge advocate? 

– Have you chosen credible observers in accordance with AFI 44-120? 

-- Have you reviewed the Personnel Information Files of the observers and 

determined they have no UIF, history of conviction by prior courts-martial or 

civilian court, Article 15s, LORs, or similar administrative action for 

misconduct involving dishonesty, fraud or drug abuse? 

-- Have you ensured no observer has any pending action, either UCMJ or 

administrative? 

-- Do all observers have more than six months remaining time in service until 

either separation or retirement from active duty? 

-- Have you ensured that observers have no medical profile that could prevent 

them from performing observer duties? 

-- Are all observers commissioned officers or enlisted members in the grade of 

senior airman or above? If SrA are selected, have you obtained the concurrence 

of the staff judge advocate? 

-- Are there enough observers, both male and female, to accommodate the number 

of individuals being tested? Have arrangements been made for relief, or 

additional observers, to meet unexpected requirements? 

-- Have you ensured that no observer is assigned to work in any legal office? 

– Have you appointed credible Trusted Agents to notify individuals for testing? 

-- Have you reviewed the Personnel Information Files of the Trusted Agents and 

determined they have no UIF, history of conviction by prior courts-martial or 

civilian court, Article 15s, LORs, or similar administrative action for 

misconduct involving dishonesty, fraud or drug abuse? 
238 – The Military Commander and the Law 

-- Have you ensured no Trusted Agent has any pending action, either UCMJ or 

administrative? 

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? 

POST INSPECTION

– Do you make sure members who are in TDY or leave status, quarters, flying or on 

crew rest are tested upon return of the member to duty? Do you coordinate this 

with the DRPM? 

– Do you seek advice and assistance from the SJA regarding members who fail or 

refuse to provide a sample? 

– Do you immediately contact the staff judge advocate for advice and assistance 

regarding all positive test results? 
Personnel Issues for the Commander – Military Members - 239 

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 

− 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 time, 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 

-- 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 

FRATERNIZATION

− Fraternization is an aggravated form of unprofessional relationship. It is defined as 

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. 
240 – The Military Commander and the Law 

− The following officer conduct is specifically prohibited by AFI 36-2909, and may 

be prosecuted under either Article 92, UCMJ or Article 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 

-- Officers will not engage in sexual relations with or date enlisted members. In 

dealing with officer/enlisted marriages, the evidence should 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 

-- 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 the Joint Ethics Regulation 

COMMAND AND SUPERVISORY RESPONSIBILITIES

− A commander or supervisor must take corrective action if a relationship is 

prohibited by AFI 36-2909 or is causing a degradation of morale, good order, 

discipline, or unit cohesion, or the commander may be punished as well. 

-- 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 arts. 92, 134 

AFI 36-2909, Professional and Unprofessional Relationships (1 May 1999) 
Personnel Issues for the Commander – Military Members - 241 

HAZING

Department of Defense policy prohibits hazing, recognizing its potential adverse 

effects on morale, operational readiness, and mission accomplishment. Hazing should 

never be tolerated. 

DEFINITION

− 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 hazing 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 a “rite of 

passage” to ensure that the dignity and respect of all members are maintained 

PUNITIVE REGULATIONS AND THE UCMJ 

− 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 
242 – The Military Commander and the Law 

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. 

REFERENCES: 

Memorandum, The Secretary of Defense, Hazing (28 August 1997) 

Memorandum, The Chief of Staff of the Air Force, Hazing (30 October 1997) 
Personnel Issues for the Commander – Military Members - 243 

PERSONAL BANKRUPTCY

− Air Force members are required to meet financial obligations in a timely manner; 

however, the Air Force maintains a policy of strict neutrality with respect to 

bankruptcy 

-- Filing for bankruptcy protection is a statutory right of all citizens and does not 

provide a basis for adverse action 

-- However, misconduct associated with the circumstances leading to bankruptcy 

may be a proper basis for discipline 

− 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 SJA will resolve any potential conflicts of 

interest. 

− 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 often accompanied by actionable financial 

irresponsibility. 

REFERENCES: 

11 U.S.C. § 525, Protection Against Discriminatory Treatment 

UCMJ art 123a, (Making, Drawing, Uttering Check, Draft, or Order Without Sufficient 

Funds) 

UCMJ art 134, UCMJ (Dishonorably Failing to Pay Debt) 

AFI 36-2906, Personal Financial Responsibility, 1 January 1998 
244 – The Military Commander and the Law 

FINANCIAL RESPONSIBILITY

Air Force personnel are expected to satisfy their financial obligations in a proper and 

timely manner. Failure to do so can result in administrative or disciplinary action 

being taken against the member and/or the debt being paid involuntarily via Air Force 

channels. 

− In all cases involving allegations of financial irresponsibility, the commander is 

responsible for 

-- Reviewing and assessing the basis of the complainant’s allegation 

-- Providing a copy of any pertinent “fact sheet,” (AFI attachment) to the parties 

-- Monitoring the processing of a complaint, attempting to respond within 15 days 

-- Advising the military member and the complainant that the Air Force has no 

authority to arbitrate disputed cases of nonsupport or personal indebtedness 

-- Ensuring information on contemplated or completed action is not disclosed to 

third parties 

-- Referring members with demonstrated financial irresponsibility to the 

appropriate base agency for assistance, normally through the Family Support 

Center 

-- Considering whether an administrative or a disciplinary action is appropriate 

-- Coordinating the action with the appropriate base agencies (SJA, MPF, IG, etc.) 

-- Responding to inquiries from HQ AFPC High Level Inquiries Division (MSH) 

− Members are expected to provide adequate financial support to their dependants 

-- The amount of support should be based on the family and the member’s ability 

to pay 

-- Support may be “in kind,” such as paying mortgage, car payments, or joint 

debts 

-- Members may not receive BAQ at the with-dependent rate if they do not 

provide financial support to their spouse or children 

-- Commanders cannot force a member to provide support or act as intermediaries 
Personnel Issues for the Commander – Military Members - 245 

-- The Air Force can terminate allowances and recoup “with dependant” rate 

allowances for those periods of nonsupport of dependants 

-- Falsifying support documentation can result in disciplinary or administrative 

action 

− Personal debts to the Air Force, federal agencies, or nonappropriated fund activities 

(including the BX, Enlisted Club, MWR, etc.) may be involuntarily deducted from 

pay 

− State courts with jurisdiction over dependant children, or a state agency with the 

proper authority, can order child support payments 

-- Complainant obtains the garnishment order from a state court over the military 

member and serves it on the Defense Finance and Accounting Service (DFAS) 

-- DFAS notifies the military member of the garnishment order 

-- Military member may provide DFAS with additional information concerning 

their cases or status of arrearages 

-- Air Force has no authority to dispute an order and, if it appears valid, normally 

must honor it 

-- Alimony payments can also be satisfied through a garnishment order 

− Child support can additionally be secured through a statutory allotment 

-- Statutory allotments are initiated by a complainant or a state agency/attorney, 

who can establish a support obligation and arrearages greater or equal to two 

months 

-- DFAS is responsible for notifying the commander or the military member 

-- The commander should ensure the military member has access to legal 

assistance 

-- Allotment goes into effect 30 days after the notice was sent to the military 

member 

-- DFAS can decline to act if the member can demonstrate the request is 

inaccurate 

− 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 
246 – The Military Commander and the Law 

-- DFAS notifies the commander, who provides a copy of the package to the 

member 

-- The commander apprises the member on their rights and obligations, including 

the right to speak with counsel 

-- The military member is provided 15 days to respond, which can be extended by 

the commander for good cause (normally not to exceed 30 days) 

-- If the military member consents to the allotment, the commander returns the 

completed forms to DFAS 

-- If the allotment is contested, the member must fully explain and support the 

reasons contesting the allotment 

-- In some cases a member may assert that military exigencies prevented them 

from adequately responding during the legal proceeding 

--- The commander makes this determination and the decision is binding on 

DFAS 

--- Before making this decision, the commander should contact the legal office 

-- If the member contests the allotment on any basis other than military 

exigencies, DFAS will review the case and make a final decision 

REFERENCES: 

50 U.S.C. App. §§ 501-594, Servicemembers Civil Relief Act, (2003) 

DoDD 1344.9, Indebtedness of Military Personnel (27 October 1994) 

AFI 36-2906, Personal Financial Responsibility (1 January 1998) 

AFI 36-3208, Administrative Separation of Airmen (9 July 2004) 
Personnel Issues for the Commander – Military Members - 247 

BAD CHECKS

Every check, draft, or money order carries with it the representation of payment in full 

when presented. 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 

− Dishonored checks are evidence of personal indebtedness until redeemed 

− If the incident is the first, or if it is relatively minor, counseling the member 

regarding Air Force policy and referral for professional counseling may be an 

appropriate first step to correct the behavior 

-- Every base has programs in place that can help teach financial management to 

Air Force members experiencing difficulty in this area 

-- Two such programs are the Personal Financial Management Program and the 

Budget Restructuring Program (Comptroller and/or Family Support Center) 

− Repeated cases of dishonored checks, or a single instance involving a large amount 

of money, may be the basis for administrative action, such as letters of reprimand, 

UIF, control roster, administrative separation, and/or involuntary deductions by 

Defense Finance and Accounting Service for personal indebtedness to the federal 

government 

− Writing bad checks can also qualify as criminal conduct under some circumstances. 

Criminal conduct prohibited by Articles 123a and 134, UCMJ, may be evident if 

the individual was 

-- Procuring or making payment by check with intent to defraud 

-- Dishonorably failing to maintain sufficient funds to cover checks 

-- Making or delivering a check knowing that sufficient funds did not exist 

-- Evidence of knowledge and intent can be shown by proof of notice of a 

dishonored check and failure to make payment within 5 days after such notice 

REFERENCE: 

UCMJ arts 123a, 134 
248 – 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 attendant problems. To further this policy, the Air Force 

attempts to identify abuse and neglect, document such cases, assess the situation, and 

treat 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's mission is to promote mission effectiveness by enhancing the health, welfare, 

and morale of Air Force families. The FAP consists of three components: prevention 

services, maltreatment intervention, and research and evaluation. 

REPORTING MALTREATMENT

− 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 the Family Advocacy Officer (FAO), who will notify 

AFOSI. AFOSI is responsible for investigating all but minor incidents of 

maltreatment. 

-- AFOSI accesses the Defense Central Index of Investigations (DCII), which 

serves as a register of substantiated and suspected cases of abuse 

-- AFOSI investigation preserves command prerogatives to take appropriate 

administrative or judicial actions 

− Notice of suspected abuse cases come from many sources: Security Forces blotter, 

commanders, co-workers, medical care providers, childcare providers, and 

anonymous calls 

THE FAMILY ADVOCACY COMMITTEE (FAC) 

− The Medical Treatment Facility (MTF) commander or deputy MTF commander, 

who is responsible for each of the three FAP components, chairs the FAC. The 

ultimate responsibility to implement the FAP, however, rests with the installation 

commander. 

− Members of the FAC normally include: Installation Commander (or designee), 

MTF Commander, Family Advocacy Officer, Family Advocacy Outreach 

Manager, Family Support Center Director, staff judge advocate (or designee), Chief 
Personnel Issues for the Commander – Military Members - 249 

of Security Forces, AFOSI Detachment Commander, Chaplain, Family Member 

Support Flight Chief, Command Chief Master Sergeant, DoDEA, and 

representatives of local child protection agencies (optional) 

− The Family Advocacy Officer (FAO) is the action officer for the FAP and chairs 

the Family Maltreatment Case Management Team (FMCMT), Child Sexual 

Maltreatment Response Team (CSMRT), High Risk for Violence Response Team 

(HRVRT), and the New Parent Support Program (NPSP) case-staffing 

THE FAMILY MALTREATMENT CASE MANAGEMENT TEAM

− The FMCMT is a multidisciplinary team that manages the assessment of, and 

interventions with, families referred for allegations of maltreatment 

− FMCMT meets at the call of the FAO, but at least monthly. Membership is 

determined by the FAC, but should include: installation commander (or deputy 

commander), DBMS (or Chief of Hospital and Clinical Services), pediatrician, 

AFOSI, SJA, SF, chaplain, and other relevant agencies 

− Duties of the FMCMT include 

-- Ensure assessment of all reported cases and prompt clinical evaluation of 

victims 

-- Documentation of cases of abuse or neglect after investigation 

-- Establish unit commander's assistance in treatment plans for both the victim and 

the abuser 

-- Review all open cases at least quarterly to ensure the case management plan is 

current and correct (review sex abuse cases at least monthly) 

-- Coordinate with local human service agencies for treatment and services that 

are beyond the capabilities of available Air Force resources 

-- Ensure that service members currently in treatment are not reassigned or placed 

on extended TDY during the treatment program. Enrollment in the program is 

not a bar to promotion or promotion consideration. 

− The unit commander of any member whose case will be discussed at the FMCMT 

should attend the FMCMT meeting 

CHILD SEXUAL MALTREATMENT RESPONSE TEAM

− Membership includes the FAO, OSI representative, SJA representative and other 

members appointed by their Unit Commander and approved by the FAC 
250 – The Military Commander and the Law 

− Goal of the team is to minimize the trauma to the victim and family and ensure no 

one individual agency makes decisions regarding theses incidents independent of 

the concerns of other involved agencies 

− The team coordinates a course of action by determining how organizations will 

proceed in making required notifications, conducting interviews, scheduling 

medical exams, arranging for safety of all 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, SFS Operational Flight Commander (or SF designee), 

Life Skills Support Center Provider, OSI, Victim Advocate, and other agencies as 

appropriate 

− Team is activated when there is a threat of immediate and serious harm to family 

members or FAP staff. Team addresses safety issues, potential triggers, advocates 

for the client’s welfare for each case, 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. Individual children and situations are unique 

and must be evaluated in that light. 

REFERENCES: 

AFI 40-301, Family Advocacy (19 January 2005) 

AFPD 40-3, Family Advocacy Program (10 March 2005) 
Personnel Issues for the Commander – Military Members - 251 

ADOPTION REIMBURSEMENT

The 1993 Defense Authorization Act, authorizes a military member (including Coast 

Guard personnel) to be reimbursed for certain adoption expenses up to $2,000.00 per 

adoption with a maximum of $5,000.00 in any calendar year 

REQUIREMENTS AND PROCEDURES

− Members should contact their local Military Personnel Flight (MPF), customer 

service section, for guidance and copies of the application forms. Once the 

application is assembled, MPF forwards the package to DFAS for review, decision 

and payment. 

− At the time of application, the member must be on active duty and have served at 

least 180 consecutive days of active duty. Further 

-- The adoption must be final, and 

-- The application must be filed no later than one year after the adoption 

− The Act limits reimbursement to "qualifying" adoption expenses incurred by active 

duty military members 

-- A "qualifying" adoption includes an adoption by either married couples or a 

single person, of a child (under 18 years of age and not the biological offspring 

of the member), through a U.S. or an inter-country adoption; and, an adoption 

of a child with special needs (as defined by DoDI 1341.9) 

-- The adoption must have been arranged through a state or local government 

agency or through a nonprofit, voluntary adoption agency. Private adoptions 

and adoptions of stepchildren are not covered. 

− The reimbursement is for "reasonable and necessary" adoption expenses, which 

include placement fees, legal fees and court costs, certain medical expenses, and 

temporary foster care fees (when required by the adoption process). Travel costs 

are not reimbursed. 

COMMANDER'S ROLE

− The unit commander certifies a claim’s validity and sends it to the MPF 

− The MPF is the primary coordinating activity. It is responsible for assisting the 

member in assembling expense receipts and providing additional information on 

the program as well as furnishing the necessary forms and the DFAS instructions. 
252 – The Military Commander and the Law 

− DFAS reviews completed claims packages, determines if the adoption and 

associated expenses are eligible for reimbursement, and issues payment to the 

member. If the claim is denied, a letter stating such will be sent to the member. 

The claim will not be returned to the member. 

TAX CREDIT

− Since 1997, taxpayers have been able to claim a tax credit (as of Tax Year 2005) of 

up to $10,630 per child for qualified expenses. See IRS Publication 968 and IRS 

Form 8839. 

− The full tax credit is available for a taxpayer whose modified adjusted gross income 

(AGI) does not exceed $159,450 and is phased out over the next $40,000 of 

modified AGI 

− Qualified adoption expenses consist of reasonable and necessary adoption fees, 

court costs, attorney fees, and other expenses which are directly related to the 

adoption of an eligible child. The credit is not available for stepparent adoptions or 

for expenses that are reimbursed under an employer's program. 

− The credit can be claimed even if the adoption is unsuccessful, except in the case of 

a foreign adoption. Expenses connected with a foreign adoption only qualify if the 

child is actually adopted. 

REFERENCES: 

10 U.S.C. § 1052 

14 U.S.C. § 514 

DoDI 1341.9, DoD Adoption Reimbursement Policy (29 July 1993) (C1, 4 August 

1997) 

DFAS-CL Instruction 1341.1, DoD Adoption Reimbursement Policy (June 1998) 

DD Form 2675, Reimbursement Request for Adoption Expenses (February 2000) 
Personnel Issues for the Commander – Military Members - 253 

PATERNITY CLAIMS

− If an individual claims an active duty member is the father of an illegitimate child, 

the commander should 

-- Counsel the member about the allegations, and 

-- Advise the member about the entitlement to legal assistance on legal rights and 

obligations 

--- If the member denies paternity, inform the claimant accordingly and advise 

them the Air Force does not have authority to adjudicate paternity claims 

--- If the member acknowledges paternity, advise the member of financial 

support obligations. Also, refer the member to the MPF, Customer Service 

Element, for guidance about the child’s eligibility for an ID card and to the 

finance office for guidance about "with dependent" rates. 

− If the member does not establish paternity by his own admission, paternity can be 

established through a judicial order or a decree of paternity or child support order 

from a United States or foreign court of competent jurisdiction. If paternity is 

established, the commander should counsel the individual on his support 

obligations. 

REFERENCES: 

DoDD 1344.3, Paternity Claims and Adoption Proceedings Involving Members and 

Former Members of the Armed Forces (1 February 1978) (C1, 16 November 

1994) 

AFI 36-2906, Personal Financial Responsibility (1 January 1998) 
254 – 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 or her immediate commander. The 

commander determines whether the member should perform jury service pursuant 

to AFI 51-301. Not every military member is exempt from jury service. 

− 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 U.S. 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. This authority to 

determine such exemptions is pursuant to 10 U.S.C. § 982 and delegated to the 

special court-martial convening authority (SPCMCA) by the SecAF. 

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) 

− 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 serve 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 

activity, the immediate commander obtains a final exemption from the 

SPCMCA using the criteria in AFI 51-301 

-- The SPCMCA may then decide whether 
Personnel Issues for the Commander – Military Members - 255 

--- 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 

leave 

− Pay or entitlements should not be deducted for the period of 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 Accounting and 

Finance 

-- 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 

DoDD 5525.8, Service by Members of the Armed Forces on State and Local Juries (13 

June 1988) 

AFI 51-301, Civil Litigation (1 July 2002) 
256 – The Military Commander and the Law 

ACQUIRED IMMUNE DEFICIENCY SYNDROME (AIDS) 

MEDICAL BACKGROUND

− HIV (human immunodeficiency virus) infection is a viral disease involving the 

breakdown of the body's immune system 

− 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 

workers in the workplace does not pose a risk for transmitting the virus 

AIDS 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 two years 

(preferably during their Preventive Health Assessment), for clinically indicated 

reasons, with newly diagnosed tuberculosis, during pregnancy, when presenting 

for a sexually transmitted disease, upon entry to drug or alcohol rehabilitation 

programs, and prior to incarceration 

-- Air Reserve Component (ARC) personnel are screened at intervals not to 

exceed five years and must be tested 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 Wilford Hall 

Medical Center (WHMC) at Lackland AFB for definitive diagnosis, treatment, 

and disposition. A medical evaluation board (MEB) is convened at WHMC 

after the initial exam. 

-- HIV-infected active duty members retained on active duty must be medically 

evaluated semiannually and are assigned within the United States, including 

Alaska, Hawaii and Puerto Rico. HIV-infected members shall not be assigned 

to mobility positions. HIV-infected members on flying status must be placed 

on Duty Not Involving Flying (DNIF) status pending medical evaluation. 
Personnel Issues for the Commander – Military Members - 257 

--- Waivers are considered using normal procedures established for chronic 

diseases 

− Testing Confidentiality: Air Force policy strictly safeguards results of positive HIV 

testing 

-- No release to persons outside the Air Force without the member's consent 

-- Air Force will neither confirm nor deny testing results of specific service 

members 

-- Very limited release within Air Force on "need-to-know" basis only (i.e., unit 

commanders should not inform First Sergeants and/or supervisors unless a 

determination is made that those individuals truly need to know) 

− Adverse Administrative Actions: Information obtained by DoD as result of 

epidemiological assessment (EA) with member who has been identified as having 

been exposed to virus associated with AIDS may not be used to support any 

adverse personnel action against member. See AFI 48-135, Atch 11. 

-- "Adverse personnel actions" include court-martial; nonjudicial punishment; line 

of duty determination; demotion; involuntary separation for other than medical 

reasons; denial of promotion or reenlistment; 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 Personal Reliability Program; 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 AFSC 

-- These nonadverse actions cannot be accompanied by unfavorable entries in 

service member's records 

-- Safe Sex Orders: "Order to Follow Preventive Medicine Requirements" is 

issued to all HIV-positive personnel who remain on active duty 

--- The health care provider will notify member that he or she has tested 

positive. The member's unit commander will also be notified through 

separate channels. 

--- The unit commander issues order to follow preventive medicine 

requirements 
258 – The Military Commander and the Law 

--- The order should be signed and dated by the commander and member 

--- The unit commander is responsible for safeguarding the order 

--- Upon reassignment, unit commander forwards the order in a sealed 

envelope to the gaining commander marked “TO BE OPENED BY 

ADDRESSEE ONLY” 

− Disability Evaluation and Medical Separation: Military members may not be 

separated merely because they are HIV positive. HIV positive members who show 

no evidence of illness or impairment shall not be separated solely on basis of being 

infected with the AIDS virus. Medical retirement is, however, a strong possibility 

once member develops AIDS. 

-- 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. 

-- 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 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 

-- Violating a "safe sex" order 

-- Failing to warn sexual partner about HIV status, despite wearing a condom 

(merely taking "safe sex" precautions won't remove the duty to warn) 
Personnel Issues for the Commander – Military Members - 259 

-- 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 AIDS. An exception 

is with those civilian employees (appropriated or nonappropriated) selected for 

assignment overseas who will be screened for HIV infection pursuant to host 

country requirements. This screening does not apply to contractor personnel, 

family members or foreign nationals. 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. 

− In March 1988, the U.S. Office of Personnel Management issued the following 

guidelines for federal agencies on handling AIDS in the federal workplace (FPM 

Bulletin 792-42) 

-- Extensive AIDS Information and Education Program 

-- 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: 

AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation (2 

February 2006) 

AFI 44-102, Community Health Management (17 November 1999) 

AFI 48-135, Human Immunodeficiency Virus Program (12 May 2004) 
260 – The Military Commander and the Law 

ANTHRAX IMMUNIZATIONS

In general, Air Force Joint Instruction (AFJI) 48-110 sets forth the 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 99% lethal to unprotected individuals; inhalation of the disease causes 

severe pneumonia and death within a week; at least 10 countries are believed to 

possess the biological agent 

− Immunization consists of three injections given two weeks apart, followed by three 

injections given at the 6, 12, and 18 month point; thereafter booster shots are 

required ever year 

− On 27 October 2004, the United States District Court for the District of Columbia 

issued an injunction against the ongoing operation of the AVIP concluding that the 

Food and Drug Administration (FDA) was procedurally required to solicit public 

comment before concluding the anthrax vaccine was safe. The Court’s decision 

was not a comment on the safety of the vaccine. 

− Due to the potential for a military emergency involving an attack on U.S. military 

forces with anthrax, the FDA issued an Emergency Use Authorization (EUA) on 27 

January 2005 

− 6 April 2005, the United States District Court for the District of Columbia modified 

its injunction against anthrax vaccination, permitting limited resumption of the 

AVIP 

− 25 April 2005, the Deputy Secretary of Defense issued a memorandum directing 

the military services to resume the AVIP under the conditions set forth by the EUA 

and court order 

− On 15 Dec 05, the FDA issued a Final Rule & Order on the license status of 

anthrax vaccine adsorbed (AVA). After reviewing extensive scientific evidence and 

carefully considering comments from the public, the FDA again determined that 

AVA is licensed for the prevention of anthrax, regardless of the route of exposure. 
Personnel Issues for the Commander – Military Members - 261 

AIR FORCE IMPLEMENTATION OF RESUMPTION OF AVIP 

− 24 Jan 2006, HQ USAF released the Air Force Plan for Implementing the AVIP 

Under Post EUA Conditions 

-- Voluntary Anthrax vaccinations will continue to be implemented as set forth in 

the EUA until complete policy review is completed and further DoD policy is 

set forth 

-- Commanders will maintain positive control over the operation of the AVIP 

under EUA conditions. Any deviation from a totally voluntary program 

violates a federal court order and may result in legal action against individuals 

in the chain of command. 

-- Only military personnel serving in the U.S. Central Command (USCENTCOM) 

area of responsibility (AOR) or on the Korean Peninsula for 15 or more 

consecutive days and certain authorized special mission units or units with 

biowarfare/bioterrorism-related missions are authorized to be offer the anthrax 

vaccination 

-- Air Force members authorized to receive the vaccination (whether beginning or 

resuming the series) and health care providers and personnel administering the 

anthrax vaccinations must be informed 

--- The FDA has authorized the emergency use of anthrax vaccine for 

preventing inhalation anthrax 

--- Of the significant known and potential benefits and risks of the emergency 

use of anthrax vaccine, and the extent to which such benefits and risks are 

unknown 

--- That “you may refuse anthrax vaccination under the EUA, and you will not 

be punished. No disciplinary action or adverse personnel action will be 

taken. You will not be processed for separation, and you will still be 

deployable. There will be no penalty or loss of entitlement for refusing 

anthrax vaccination.” 

-- Health care providers and personnel administering anthrax vaccinations must 

have available to them a copy of the anthrax vaccine manufacturer’s package 

insert 

− Full information on AVIP can be found at www.anthrax.mil 
262 – The Military Commander and the Law 

REFERENCES: 

Memorandum, Deputy Secretary of Defense, Resumption of the Anthrax Vaccine 

Immunization Program (AVIP) Under Emergency Use Authorization (EUA) (25 

April 2005) 

Memorandum, Under Secretary of Defense, Implementation of Resumption of the 

Anthrax Vaccine Immunization Program (AVIP) Under Emergency Use 

Authorization (EUA) (29 April 2005) 

Memorandum, Headquarters US Air Force, Air Force Plan for Implementing the 

Anthrax Vaccine Immunization Program (AVIP) Under Post Emergency Use 

Authorization (EUA) Conditions (24 January 2006) 

Biological Products; Bacterial Vaccines and Toxoids; Implementation of Efficacy 

Review; Anthrax Vaccine Adsorbed [sic]; Final Order, 70 Fed. Reg. 75180 (19 

December 2005) 

Authorization of Emergency Use of Anthrax Vaccine Adsorbed [sic] for Prevention of 

Inhalation Anthrax by Individuals at Heightened Risk of Exposure Due to 

Attack with Anthrax; Availability, 70 Fed. Reg. 44657 (3 August 2005) 

AFJI 48-110, Immunizations and Chemoprophylaxis (2 May 2004) 
Personnel Issues for the Commander – Military Members - 263 

LIMITED PRIVILEGE SUICIDE PREVENTION 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 

Life Skills Center 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 program is to identify and treat those members who pose a 

genuine risk of suicide by providing limited confidentiality with respect to their 

discussions with a mental health provider (MHP) 

-- The instruction governing the procedures for the program is AFI 44-109. This 

instruction 

--- Provides guidance for commanders who wish to make a referral 

--- Establishes the rights of Air Force members referred by their commanders 

for mental health evaluations 

--- Establishes a limited confidential privilege between the MHP and the 

patient 

− This program operates in conjunction with the guidance on commander directed 

MHEs 

APPLICATION AND PROCEDURES 

− Eligible Members: The Limited Privilege Suicide Prevention (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 

− 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 

treatment in the LPSP program 

-- Individuals involved in the processing of the disciplinary action who would be 

in a position to make this assessment include, but are not limited to, the defense 
264 – The Military Commander and the Law 

counsel, the trial counsel, law enforcement officials, the staff judge advocate or 

any assistant staff judge advocate, the first sergeant, or the squadron executive 

officer 

-- Based on the information provided by such an individual and upon any other 

relevant information and after consultation with an MHP, the commander may 

refer the member for an 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 

− Duration 

-- The limited protection offered by this program lasts 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 protection offered under the program ends at that time 

--- Though the instruction does not make this clear, as a practical matter, it 

appears the initial evaluation would be subject to that privilege even if the 

MHP determines afterward that the member does not pose a risk of suicide 

LIMITED PROTECTION 

− Members in the program are granted limited protection with respect to the 

information revealed during or generated by their clinical relationship with the 

MHP. 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 a 

separation. 

− The limited protection does not apply to 

-- The use of the information as evidence for impeachment or rebuttal purposes in 

any proceeding in which the 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) 
Personnel Issues for the Commander – Military Members - 265 

RELATED ISSUE

− 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 Military Rule of Evidence 513 

− 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 

(except as provided by M.R.E. 513) 

− In cases not arising under the UCMJ, psychotherapists may appeal requests for 

confidential information to the installation staff judge advocate (SJA) 

− When applying M.R.E. 513, the installation SJA will resolve any questions of 

whether an exception to M.R.E. 513 requires or allows disclosure. Even so, 

admissibility at trial will be determined by the military judge. 

− Before inquiring with care providers, commanders should consult with their 

servicing SJA 

REFERENCES: 

MIL. R. EVID. 513 

DoDD 6490.1, Mental Health Evaluations of Members of the Armed Forces (1 October 

1997) 

AFI 44-109, Mental Health, Confidentiality, and Military Law (1 March 2000) 
266 – The Military Commander and the Law 

COMMANDER DIRECTED MENTAL HEALTH EVALUATIONS

PURPOSE

Commanders who have concerns that a member under their command may be suffering 

from a legitimate mental health problem that may affect that member’s ability to carry 

out the mission, may refer the member to the Life Skills Center for a mental health 

evaluation (MHE) 

− AFI 44-109 establishes the uses of and procedures for commander directed MHEs 

-- Provides commanders guidance on making a referral 

-- Establishes the rights of Air Force members referred for mental health 

evaluations 

-- Establishes procedures for outpatient and inpatient mental health evaluations 

-- Establishes the Limited Privilege Suicide Prevention (LPSP) Program for 

members facing potential disciplinary action under the UCMJ who may be at 

risk of suicide. This is encompassed in Military Rule of Evidence (M.R.E.) 

513. 

--- M.R.E. 513 offers a limited privilege to persons subject to the UCMJ and 

psychotherapists. 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. M.R.E. 513(a). 

--- "M.R.E. 513 has no application outside UCMJ proceedings." 

AFLOA/JAJM policy letter, 8 March 2000. See, also, M.R.E. 513 

Analysis. 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." SJA's resolve disputes and determine 

whether disclosure should be made. 

--- Who may claim the privilege. The 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 or 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, 
Personnel Issues for the Commander – Military Members - 267 

guardian, or conservator to so assert the privilege is presumed in the 

absence of evidence to the contrary. M.R.E. 513(c). 

--- Exceptions: 

---- The patient is dead 

---- Crimes of spouse/child abuse or a proceeding in which one spouse is 

charged with a crime against the other spouse or a child of either 

spouse 

---- When federal or state law, or service regulation, imposes a duty to 

report 

---- 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 R.C.M. 706 or M.R.E. 302 

---- When admission or disclosure of a communication is constitutionally 

required 

COMMANDER’S RESPONSIBILITIES

− A commander who wishes to refer a member for a MHE must 

-- Refer a member only if he or she believes the individual has a legitimate mental 

health problem 

--- A commander cannot refer a member simply to buy time or as a disciplinary 

tool 

--- A commander cannot refer a member as a reprisal for the individual's 

attempt or intent to make a protected communication 

-- Consult with a mental health provider (MHP) concerning the need for an MHE 

prior to referring the member for an MHE 
268 – The Military Commander and the Law 

-- Provide the member with written notice of the MHE at least two days prior to 

the referral. The notice must include 

--- The date and time of the MHE 

--- A brief factual description of the behavior that gave rise to the need for a 

referral 

--- The name of the MHP the commander consulted with prior to the referral 

--- Contact information as to the authorities that can assist the member who 

wants to question the referral 

--- A listing of the member’s rights under DoDD 6490.4 

-- Consult the legal office for assistance in preparing the notification letter 

-- In an emergency situation, refer the individual for a MHE a soon as possible 

without regard to waiting periods or other things that might delay the evaluation 

MEMBER’S RIGHTS 

− When referred for a nonemergency MHE the member has the following rights 

-- To consult an Air Force attorney (i.e., the Area Defense Counsel) upon request 

-- To a waiting period of two workdays (i.e., the member’s normal duty day) 

between the notification and the MHE. To the extent military necessity does 

not allow for the waiting period, the notification letter must explain the reasons 

why. The waiting period does not apply to emergency referrals. 

-- To complain to the Inspector General that the referral violated the instruction. 

Such a complaint will not delay processing. 

-- To request a second MHE by another MHP 

-- To make a lawful communication to the IG, his/her attorney, or other 

appropriate authority, including the chaplain (as soon after admission as the 

servicemember’s condition permits in emergency referrals) 

− If the member is involuntarily hospitalized for treatment, that treatment must take 

place in a setting no more restrictive than necessary for effective treatment 
Personnel Issues for the Commander – Military Members - 269 

INVOLUNTARY INPATIENT ADMISSIONS 

− A member should be admitted for inpatient treatment only when outpatient 

treatment and evaluation is not appropriate 

-- The member must be admitted by a qualified MHP 

-- A qualified reviewing official (normally a neutral and detached MHP) must 

review the admission within 72 hours to determine whether the referral and 

admission were appropriate 

-- The reviewing official will review the case file, interview the authorities 

involved and interview the member, if possible 

− In addition, members involuntarily admitted for treatment are afforded the 

following rights 

-- To be informed of the reasons for the MHE and of the nature and consequences 

of the MHE and any treatment to the extent his/her condition permits 

-- To contact a friend, relative, or anyone else the member wishes to the extent the 

member’s condition permits such communication 

− The MHP who conducts the initial MHE must 

-- Determine within two workdays (i.e., the MHP’s normal duty day) whether 

continued treatment or hospitalization is necessary; and 

-- Notify the member orally and in writing the reasons for continued 

hospitalization or treatment 

PROHIBITED PRACTICES 

− The commander may not 

-- Refer a member for an MHE as a reprisal for making a protected 

communication 

-- Restrict the member from lawfully communicating with his/her attorney, the 

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 

− Commander directed MHEs should not be confused with referrals under the 

Alcohol and Drug Abuse Prevention and Treatment Program (AFI 44-121), the 
270 – The Military Commander and the Law 

Family Advocacy Program (AFI 40-301), or those referrals made pursuant to a 

ruling from a military judge concerning the administration of a sanity board 

REFERENCES: 

MIL. R. EVID. 513 

DoDD 6490.1, Mental Health Evaluations of Members of the Armed Forces (1 October 

1997) 

DoDI 6490.4, Requirements for Mental Health Evaluations of Members of the Armed 

Forces (28 August 1997) 

AFI 44-109, Mental Health, Confidentiality, and Military Law (1 March 2000) 

AFPD 44-1, Medical Operations (1 September 1999) 
Personnel Issues for the Commander – Military Members - 271 

HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY 

ACT (HIPAA) PRIVACY RULE

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; one component specifically provides for 

increased privacy protection of protected health information (PHI) 

– The privacy rule applies to the DoD; the compliance date for the DoD was 14 Apr 

03 

– DoD’s health information privacy regulation is at DoD 6025.18-R 

– HIPAA does not create a private cause of action for violations, but Health and 

Human Services imposes civil and criminal penalties for violating the privacy rule; 

Air Force personnel are also subject to UCMJ or administrative actions for HIPAA 

violations 

– Starting in Dec 02, Tricare mailed the “Notice of Privacy Practices” (NOPP) to all 

Tricare enrolled patients. The NOPP spells out what the medical facilities will/will 

not do with their health information and that in many instances they can learn of 

disclosures made through an accounting. 

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 

– PHI is anything that tells someone about the past, present, or future 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. This includes, the 

patient's name, address, zip code, phone number, Social Security Number, gender, 

age, race, diagnosis information, and treatment information. 

– However, HIPAA allows PHI to be used freely for treatment, payment or routine 

healthcare operations. If the release of information is not for one of these purposes, 

the medical treatment facility (MTF) will either need the patient's written 

authorization, or the disclosure must fall into one of the "permissible disclosures" 

categories 
272 – The Military Commander and the Law 

-- "Treatment" generally means the provision, coordination, or management of 

health care and related services among health care providers 

-- "Payment" includes Air Force third-party collections programs 

-- "Health care operations" are certain administrative, financial, legal, and quality 

improvement activities that are necessary to support the core functions of 

treatment and payment. This includes our medical malpractice claims 

investigation process. 

-- HIPAA also allows providers and health plans to give PHI to "business 

associates," who are those who act on behalf of an MTF, other than as a 

member of the workforce, performing, or assisting in the performance of a 

function or activity involving the use or disclosure of PHI. Business associates 

must give written assurance that they will comply with HIPAA (i.e., a business 

associate agreement or BAA). 

-- Drug testing program records are not subject to HIPAA 

PERMISSIBLE DISCLOSURES

– Under HIPAA, without the individual’s authorization, an MTF may still disclose 

information for the following purposes, but in most instances will need to account 

for the disclosure 

-- As required by any law (includes Air Force and DoD Regulations) 

-- To avert serious threats to health or safety 

-- For specialized governmental functions. Generally, an MTF may use and 

disclose PHI of armed forces personnel for "activities deemed necessary" by 

appropriate military command authorities to assure the proper execution of the 

military mission, but the Air Force will have to account for the disclosure. This 

includes fitness for duty determinations. 

-- For judicial and administrative proceedings 

-- For law enforcement purposes (which includes OSI, SF, and JA) 

-- For organ, eye, or tissue donation purposes 

-- Regarding victims of abuse, neglect or domestic violence 

-- Regarding inmates in correctional institutions or in custody 

-- For workers' compensation cases 
Personnel Issues for the Commander – Military Members - 273 

-- For public health and other oversight activities 

-- About decedents (to a coroner or medical examiner to identify a deceased 

person, determine a cause of death, or for other duties as authorized by law) 

– Most of these disclosures require the MTF to account for the release, so the MTF 

will have to keep track of who received the information and for what purpose. Law 

enforcement personnel (to include JA) may request a temporary suspension of the 

accounting for law enforcement purposes if the MTF gets a written statement that 

the accounting would be "reasonably likely" to impede agency's activities, which 

must give a reasonable time limit to suspend the accounting. If the request is oral, 

the MTF will only temporarily suspend for 30 days unless, in that time, they get a 

written request. 

– There are also incidental uses/disclosures that are permissible under HIPAA, such 

as sign-in sheets, calling patients by their name, and posting the patient’s name 

outside the door. 

MINIMUM NECESSARY STANDARD

– When HIPAA permits release of information, MTFs must provide the minimum 

amount of information that will satisfy the intended purpose of the disclosure 

(similar to the Privacy Act's "need to know" standard), except for treatment 

purposes, disclosures to the subject of the information, when the individual 

authorizes full release, 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 specify that is the case 

COMMANDERS' ACCESS TO INFORMATION

– Under the "special government functions" rule described above, commanders can 

access members' PHI when necessary for mission accomplishment 

-- 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, e.g.). 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 or her mission: 

-- For example, if a member has a foot injury that precludes prolonged standing, 

the commander may have access to PHI related to the foot injury because it 
274 – The Military Commander and the Law 

impacts the type of day-to-day duties that the member can be assigned (i.e., it 

impacts mission accomplishment). The commander wouldn't have access to the 

members' dental records, mammograms, or other medical information unrelated 

to the foot injury, though, because they go beyond the commander's true need 

(i.e., the release would exceed the minimum necessary standard). 

-- These releases are subject to accounting (these releases must be tracked; the 

member can find out what information the commander accessed) 

– 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; if the 

commander wishes to designate a First Sergeant as an authorized recipient of PHI, 

the commander should do so in writing 

– Also, note that a commander's access to information may be further limited by DoD 

policy on confidentiality for sexual assault victims 

REFERENCES: 

Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 

Stat. 1936 (1996) 

DoD 6025.18-R, DoD Health Information Privacy Regulation (24 January 2003) 
Personnel Issues for the Commander – Military Members - 275 

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 delegees 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: requires a person to be in close physical proximity to a nuclear 

weapon. This person controls access to or uses technical data on the electrical or 

mechanical parts, or has access to unlock and or authenticate values of a nuclear 

weapon or weapons system that launch, release, or detonate the weapon. 

− Controlled position: requires the assigned person to enter a “no-lone” zone or to 

control entry into a “no-lone” zone. This person has access, but no technical 

knowledge pertaining to the launching, releasing, or detonating of a nuclear 

weapon or critical component. 

PRP MANDATORY SELECTION CRITERIA

− Individuals selected and certified for the PRP must meet the following minimum 

criteria at all times 
276 – The Military Commander and the Law 

-- Physical competence and mental alertness. Must possess an S-1 (no psychiatric 

disorder) profile (or civilian equivalent). 

-- Dependability, flexibility in adjusting to changes in working environment, good 

social adjustment, emotional stability, sound judgment 

-- Have the required security investigation and security clearance 

-- Have a positive attitude toward nuclear weapons duty and the PRP objectives 

-- Are not under consideration for separation for cause, under court-martial 

charges, or awaiting civilian trial for felony or misdemeanor charges 

-- Are U.S. citizens or U.S. nationals 

-- Favorable personnel security investigation, medical evaluation, personnel 

records review, and personal interview with CO 

-- Demonstrated and certified technical proficiency commensurate with nuclear 

related duty position 

POTENTIAL DISQUALIFYING INFORMATION

− Any of the following traits or conduct is PDI 

-- Alcohol abuse 

-- Drug abuse 

-- Negligence or delinquency in performance of duty 

-- Conviction or involvement in a serious incident 

-- Mental condition 

-- Serious progressive illness 

-- Poor attitude or lack of motivation 

-- Suicide attempt and/or threats 

-- Loss of confidence 
Personnel Issues for the Commander – Military Members - 277 

CERTIFICATIONS

− A formal certification occurs when an individual is placed in PRP and possesses the 

required security investigation 

− An interim certification occurs when an individual is placed in PRP and does not 

possess the required security investigation for formal certification, but does have a 

security investigation adequate for interim clearance 

− An administrative certification is granted when an individual is not currently 

formally or interim certified 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 three ways: by suspension, by 

temporary decertification, or by permanent decertification 

− Suspension

-- Suspension is used to immediately remove an individual from PRP-related 

duties (for a maximum of 30 days) without starting decertification action 

-- The individual is still considered reliable with regard to the PRP, but because of 

the circumstances, is not authorized to perform the nuclear related duties 

requiring PRP certification. The certifying official can use this time to research 

the facts to determine if an individual’s reliability is impaired. However, a 

suspension should not be used in place of decertification when the facts and 

circumstances indicate unreliable behavior. 

-- The certifying official makes the final decision 

-- If the cause of the suspension lasts longer than 30 days, temporary or 

permanent decertification is required 

− Temporary Decertification

-- Temporary decertification is used to keep an individual from performing 

nuclear related duties for up to 180 days when an individual’s job performance 

or reliability is in question or impaired and neither suspension nor permanent 

decertification is appropriate. The temporary decertification may be extended 

in 30-day increments up to 270 days if more time is needed to make a decision. 

-- A temporary decertification should not be used in place of a permanent 

decertification if the facts indicate a permanent decertification is more 

appropriate 
278 – The Military Commander and the Law 

-- Temporary decertification is not required for personnel with an illness, injury, 

or disease that requires hospitalization or placement of quarters if their 

reliability is not in question 

− Permanent Decertification

-- Permanent decertification is a result of a member having a disqualifying factor 

indicating the individual has questionable integrity or long-term impaired 

capability 

-- Permanent decertification is appropriate when 

--- The individual’s drug abuse has been confirmed 

--- The individual is diagnosed as an alcohol dependent 

--- The individual is being involuntarily discharged or removed for cause 

--- The individual no longer meets the mandatory selection criteria (see list of 

criteria above) 

--- The individual is not qualified for administrative certification for PCS or 

training 

--- The individual’s security clearance eligibility has been revoked 

--- The individual has used a drug that could cause flashbacks 

--- The individual has used anabolic steroids not prescribed by a physician 

-- A permanent decertification or disqualification may be waived provided there is 

documented evidence which clearly demonstrates that the disqualifying 

problem no longer exists and the individual concerned is otherwise qualified. 

Requests may be initiated by the individual, commander, or CO. 

REFERENCES: 

AFI 31-501, Personnel Security Program Management (27 January 2005) 

AFI 36-2104, Nuclear Weapons Personnel Reliability Program (5 August 2005) 

AFI 91-101, Air Force Nuclear Weapons Surety Program (19 December 2005) 
Personnel Issues for the Commander – Military Members - 279 

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 DoD established policy for implementing this law to military 

personnel in a memorandum dated 27 November 2002. The Air Force established 

further implementation in a subsequent policy memorandum. 

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 to 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, or 

--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) qualifying as a conviction prohibiting 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, the person convicted must have been represented by counsel or 

affirmatively waived such right 
280 – 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 

--Non-judicial punishment 

--Prosecutions that are deferred or are in a stay adjudication status 

– Local SJA will assist commanders in determining if there is a qualifying conviction 

AIR FORCE IMPLEMENTATION

– Annual briefings regarding the Lautenberg Amendment are required to be given by 

commanders 

– Notices regarding the Lautenberg Amendment must be posted at all facilities where 

government firearms are stored, issued, disposed of, transported, or used 

– Air Force members must complete a DD Form 2760, Certification of Prior 

Conviction for Crime of Domestic Violence 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 PCS, PCA, 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 

--Must immediately be denied access to all government firearms and ammunition, 

including MWR facilities (i.e. trap/skeet). Commanders must immediately 

retrieve any government issued firearms and ammunition. 

--Are ineligible for all weapons training 
Personnel Issues for the Commander – Military Members - 281 

--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 AFSC not requiring firearms 

REFERENCES:

18 U.S.C. §922 

Memorandum, Under Secretary of Defense for Personnel and Readiness, DoD Policy 

for Implementation of Domestic Violence Amendment to the Gun Control Act 

for Military Personnel (27 November 2002) 

Memorandum, HQ USAF/DPP, Air Force Policy for Implementation of Domestic 

Violence Amendment to the Gun Control Act (Lautenberg Amendment) for 

Military and Civilian Personnel (20 February 2004) 
282 – The Military Commander and the Law 

CONSCIENTIOUS OBJECTION TO MILITARY SERVICE

Although military service is generally viewed as 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, by virtue of 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/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 life 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 

-- Those awaiting promotion after selection are put on withhold status, and once 

their application is approved, they become ineligible for promotion 

APPLICATION PROCEDURES

− Applicant has the burden of proof to show he/she is a CO 

− He/she must establish by clear and convincing evidence the following 

-- He/she objects to participation in war in any form or the bearing of arms 
Personnel Issues for the Commander – Military Members - 283 

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

-- The applicant's belief is by virtue of religious training or other belief system 

akin to religion 

-- The nature or basis of the claim falls under the definition of conscientious 

objection in AFI 36-3204, Attachment 1 

− Clear and convincing evidence is 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 serving 

in USAFR or ANG and not serving on extended active duty 

− The application contains information requested in 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' 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 submits a written report detailing conclusions and the reasons 

therefore, 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 commander appoints a judge advocate as an Investigating Officer (IO) to 

interview the applicant under oath, assemble all the relevant material and interview 

other witnesses 

-- The instruction contains procedures that permit the IO to hold a hearing on the 

matter, which the applicant may attend with counsel 
284 – The Military Commander and the Law 

-- The IO prepares a report that states his/her 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 

− 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 

-- The primary consideration is the sincerity with which the applicant holds these 

beliefs. In evaluating applications, carefully examine and weigh the conduct of 

applicants, in particular their outward manifestation of their beliefs. 

− The commander who appoints the IO (as well as the MAJCOM or FOA) makes a 

recommendation before forwarding the file up the chain 

− SecAF or a designated representative makes the decision regarding CO status for 

officer applicants 

− The final approval decision for enlisted personnel is by HQ AFMPC/DPMARS 

(active duty airmen), ANG/DPP (ANG airmen), HQ AFRES/DPAA (reserve unit 

airmen), or HQ ARPC/DPA (all other reserve airmen) 

REFERENCES: 

AFI 36-3204, Procedures for Applying as a Conscientious Objector (15 July 1994) 

AFI 36-3207, Separating Commissioned Officers (9 July 2004) 

AFI 36-3208, Administrative Separation of Airmen (9 July 2004) 
Personnel Issues for the Commander – Military Members - 285 

HOMOSEXUAL CONDUCT

DEPARTMENT OF DEFENSE POLICY 

− Congress has determined homosexual conduct is incompatible with military service 

− Homosexual orientation is not a bar to service entry or continued service unless 

manifested by homosexual conduct

− Homosexual conduct is the focus of the DoD policy 

− Bi-sexual conduct is treated the same way as homosexual conduct 

DEFINITIONS

− Homosexual conduct is 

-- Homosexual act

--- Bodily contact, actively undertaken or passively permitted, between 

members of the same sex for the purpose of satisfying sexual desires 

--- Bodily contact that a reasonable person would understand to demonstrate a 

propensity or intent to engage in homosexual acts 

-- Homosexual statements

--- Language or behavior that a reasonable person would believe was intended 

to convey a statement that a person engages in, attempts to engage in, or has 

the propensity to engage in homosexual acts 

--- Includes statements such as "I am homosexual," "I am gay," "I am lesbian," 

or "I have a homosexual orientation" 

--- A statement by a member that demonstrates a propensity or intent to engage 

in homosexual acts is grounds for separation, not because it reflects on the 

member’s sexual orientation, but because it indicates a likelihood that the 

member engages in or will engage in homosexual acts 

-- Homosexual marriage or attempted homosexual marriage

− Propensity means more than an abstract preference or desire to engage in 

homosexual acts; it indicates a likelihood that a person engages in or will engage in 

homosexual acts 
286 – The Military Commander and the Law 

INQUIRIES

− Only a commander can initiate a fact-finding inquiry into alleged homosexual 

conduct by an Air Force member. First sergeants, supervisors and administrative 

officers do not have the authority to conduct an inquiry except at the direction of a 

commander. 

− Commanders may personally perform an inquiry or appoint an inquiry officer (IO) 

− Before initiating an inquiry, the commander must have (1) credible information (2) 

that a basis for discharge exists, i.e., the member has engaged in homosexual 

conduct 

-- Credible information exists when the information supports a reasonable belief 

that a member has engaged in homosexual conduct. Credible information is 

analogous to “probable cause” in a search situation. 

--- It must be based on a credible source and be sufficiently specific so that a 

commander can make a reasonable determination that the member engaged 

in homosexual conduct 

--- The motives of the person making the report to the commander and the 

surrounding circumstances are relevant to the determination 

-- A commander makes the determination based on facts, not just a belief or 

suspicion 

-- If a member reports being threatened or harassed because he or she is labeled or 

perceived to be a homosexual, such information alone does not justify an 

inquiry into alleged homosexual conduct by the member reporting the threats or 

harassment 

-- Associational activities, such as frequenting gay bars, gay parades, and gay 

web-sites, do not support that the member has engaged in homosexual conduct 

and cannot be the basis for an inquiry 

− Inquiries solely to determine a member's sexual orientation are prohibited 

− Commanders are responsible for ensuring that inquiries are conducted properly 

− Prior to the initiation of any inquiry into homosexual conduct, the commander must 

consult through the chain of command the general court-martial convening 

authority (GCMCA). Single base GCMCAs, NAFs, or higher level GCMCAs may, 

but are not required to, coordinate with the next higher level of command. 
Personnel Issues for the Commander – Military Members - 287 

− Prior to the initiation of any inquiry into homosexual conduct, the SJA of the 

initiating commander must consult the SJA of the GCMCA 

− Before interviewing the member whose conduct is in question, the member must be 

advised of the DoD policy on homosexual conduct and of Article 31, UCMJ, rights 

in appropriate cases 

− Inquiries are not required in every case and may be unnecessary 

− A commander may initiate an inquiry if the commander believes the member has 

engaged in homosexual conduct to avoid a military service obligation (service 

commitment, reassignment, deployment, etc.). The focus of the inquiry is the 

motivation for the conduct. 

− Informal fact-finding inquiries and administrative separation procedures are the 

preferred method of addressing homosexual conduct. An informal fact-finding 

inquiry is limited to interviewing the member, persons reporting homosexual 

conduct by the member, individuals suggested by the member to be interviewed, 

and the member’s immediate supervisory chain of command (supervisor though the 

supervisory chain of command to the commander). 

− Substantial fact-finding inquiries 

-- Extend beyond questioning the member, persons who report the homosexual 

conduct, individuals suggested by the member to be interviewed and the 

member’s immediate supervisory chain of command 

-- Are broader than informal fact-finding inquiries 

-- Are only initiated, if required, after informal fact-finding 

--- Limitations apply to substantial inquiries into whether a statement was 

made for the purpose of seeking separation and are discussed below 

--- The need to conduct a substantial inquiry will be infrequent 

− The scope of any inquiry cannot be expanded by the commander or appointed IO 

beyond the specific conduct and individual or individuals about whom the IO is 

specifically tasked to inquire. Conduct forming the basis for separation of other 

members that comes to the attention of an IO cannot be used to expand the scope of 

an inquiry, but must be referred to the appropriate commander for consideration of 

initiation of a separate inquiry. 

− A commander can only initiate a substantial inquiry to determine whether a 

statement of homosexuality was made for the purpose of seeking separation from 
288 – The Military Commander and the Law 

military service after a request through the chain of command and the Vice Chief of 

Staff of the Air Force has been approved by the Under Secretary of the Air Force 

-- The request must include the following 

--- An explanation of why it is expected that the expanded inquiry will result in 

additional relevant evidence 

--- Why the Air Force benefit in expanding the inquiry outweighs any 

foreseeable disadvantage of expanding the inquiry 

INVESTIGATIONS

− Criminal investigations cannot be initiated solely to determine sexual orientation 

− A prerequisite to initiation of an investigation is that a violation of the UCMJ has 

been committed. A statement of homosexuality does not violate the UCMJ nor do 

all homosexual acts (holding hands, touching, caressing, etc.). 

− Upon determining that there is credible information that a violation of the UCMJ 

has occurred, commanders may request an OSI or SFS investigation. DoDI 5505.8 

states that OSI commanders may decline to open an investigation if they determine 

the request lacks credible information that a violation has occurred or is not in 

keeping with established policy. 

SEPARATIONS

− When a commander determines that a member has engaged in homosexual conduct, 

the commander must initiate separation. Even if the commander believes an 

individual might meet the retention criteria for individuals who engage in 

homosexual acts (discussed below), the commander must initiate discharge action. 

− The commander may refuse to initiate separation action for homosexual conduct 

only if the commander determines 

-- The member engaged in homosexual conduct for the purpose of avoiding or 

terminating military service and separation is not in the best interest of the Air 

Force 

-- This exception is best suited for exigent circumstances where the member’s 

skills are critical to mission accomplishment 

− Any member processed for separation for homosexual conduct is entitled to present 

his or her case to an administrative discharge board or to waive a board hearing and 

leave the determination to the separation authority 
Personnel Issues for the Commander – Military Members - 289 

-- The board has an independent obligation to review the evidence presented by 

both the government and the member 

-- The board uses a “preponderance of the evidence” standard to arrive at its 

conclusions and make its recommendations 

-- The member is entitled to representation by a military defense counsel at no 

expense and/or to representation by a civilian counsel at his or her own expense 

-- The member can present evidence and call witnesses to show that he or she did 

not engage in homosexual conduct, or even if he or she did, to establish that he 

or she should be retained 

-- The separation authority makes the final decision 

− A member will be separated for homosexual acts unless he or she can demonstrate 

by a preponderance of the evidence all of the following 

-- Such acts are a departure from the member’s usual and customary behavior 

-- Such acts under all the circumstances are unlikely to recur 

-- Such acts were not accompanied by use of force, coercion, or intimidation 

-- Under the particular circumstances, the member’s continued presence in the Air 

Force is consistent with the interests of the Air Force 

-- The member does not have a propensity or intent to engage in homosexual acts 

− A statement of homosexuality creates a rebuttable presumption that the member 

engages in, attempts to engage in, or intends to or has a propensity to engage in 

homosexual acts. To avoid separation, the member must rebut by a preponderance 

of the evidence the presumption. Some or all of the following may be considered 

-- Whether the member has engaged in homosexual acts 

-- The member's credibility 

-- Testimony from others about the member's past conduct, character, and 

credibility 

-- The nature and circumstances of the member's statement 

-- Any other evidence relevant to whether the member is likely to engage in 

homosexual acts 
290 – The Military Commander and the Law 

CHARACTERIZATION OF DISCHARGE/SERVICE

− The discharge will be deemed an entry level separation if the member is in entry 

level status and an under other than honorable conditions (UOTHC) 

characterization is not warranted 

− The member’s service will be characterized as under honorable conditions (general) 

or honorable if the member is not in entry level status and a UOTHC is not 

warranted 

− UOTHC is authorized only when the homosexual act was performed 

-- By using force, coercion, or intimidation 

-- With a person under 16 years of age 

-- With a subordinate in circumstances that violate customary military superiorsubordinate relationships 

-- Openly in public view 

-- For compensation 

-- Aboard a military vessel or aircraft 

-- In another location subject to military control under aggravating circumstances 

RECOUPMENT

− A member separated for homosexual conduct may be subject to a recoupment of 

special pay, bonuses, and educational assistance if either 

-- A UOTHC characterization is authorized or the conduct is punishable under the 

UCMJ, or 

-- The member made a homosexual statement, engaged in a homosexual act, or 

married/attempted to marry someone of the same sex for the purpose of 

avoiding service 

− The administrative discharge board, or the separation authority when the board is 

waived, must make a specific written finding that recoupment is authorized under 

the facts of the case and then a separate written recommendation that recoupment 

should be effected 
Personnel Issues for the Commander – Military Members - 291 

SECURITY CLEARANCE

− Sexual orientation alone is not a security concern 

− Sexual behavior may be a security concern if it involves criminal offenses, 

indicates a personality or emotional disorder, subjects the individual to undue 

influence or coercion (blackmail), or reflects lack of judgment or discretion (DoD 

5200.2-R, Personnel Security Program (C3, 23 February 1996)) 

− Information regarding criminal homosexual acts disclosed during a security 

background investigation may not be provided to military authorities for 

administrative or judicial actions, unless such acts were performed 

-- By force, coercion or intimidation 

-- With a person under 17 years 

-- Openly in public view 

-- For compensation or with an offer of compensation to another 

-- While on active duty or in a reserve component aboard a military aircraft or 

vessel or with a subordinate in violation of the customary military superiorsubordinate relationship 

− Information regarding noncriminal homosexual conduct may not be provided to 

military authorities for any purpose 

REPORTING REQUIREMENTS

− Consult with your MAJCOM and SJA for special reporting requirements for 

homosexual conduct inquiries or investigations 

HARASSMENT

− All individuals must be treated with dignity and respect, free of threats and 

harassment 

− Even though homosexual conduct is a bar to military service, harassment or threats 

are not acceptable responses to homosexual conduct 

− Commanders must promptly investigate allegations of harassment or threats 

− If a member reports being threatened or harassed because he or she is labeled or 

perceived to be a homosexual, such information alone does not justify an inquiry 

into alleged homosexual conduct by the member reporting the threats or harassment 
292 – The Military Commander and the Law 

− If a commander initiates an investigation into harassment or threats and information 

concerning homosexual conduct surfaces, the commander must carefully consider 

the source of information and the surrounding circumstances prior to initiating an 

inquiry into the homosexual conduct (i.e., credible evidence must exist) 

REFERENCES: 

10 U.S.C. § 654 

DoDD 1304.26, Qualification Standards for Enlistment, Appointment and Induction

(20 September 2005) 

DoD 5200.2-R, Personnel Security Program (January 1987) (C3, 23 February 1996) 

DoDI 5505.8, Investigations of Sexual Misconduct by the Defense Criminal 

Investigative Organizations and Other DoD Law Enforcement Organizations

(24 January 2005) 

AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers (9 June 

2004) 

AFI 36-3208, Administrative Separation of Airmen (9 July 2004) 

AFI 51-602, Boards of Officers (2 March 1994) 

AFPAM 36-3210, Procedural Guide for Enlisted Administrative Discharge Boards (1 

November 1995) 

Memorandum, Under Secretary of Defense for Personnel and Readiness, Guidelines 

for Investigating Threats Against or Harassment of Services Members Based on 

Alleged Homosexuality (12 August 1999) 

Memorandum, Under Secretary of Defense for Personnel and Readiness, 

Implementation of Recommendations Concerning Homosexual Conduct Policy, 

(12 August 1999) 

Memorandum, The Secretary of the Air Force, Air Force Policy on Harassment (10 

January 2000) 

Memorandum, The Chief of Staff of the Air Force, Homosexual Policy Guidance (10 

March 2000) 
Personnel Issues for the Commander – Military Members - 293 

FITNESS PROGRAM

The goal of the 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. AFI 10-248, 

Fitness Program supersedes all guidance provided in AFI 40-501, Air Force Fitness 

Program, and AFI 40-502, Weight and Body Fat Management Program. The Fitness 

Program applies to all Air Force members. 

UNIT/SQUADRON COMMANDER’S DUTIES

− The unit/squadron commander’s duties include, but are not limited to, the following 

-- Leading the unit fitness program 

-- Implementing and maintaining a unit/squadron physical training (PT) program, 

offering a program led by a trained PT leader at least three times per week 

-- Ensuring members are permitted up to 90 minutes of duty time for PT three to 

five times weekly 

-- Taking appropriate action in response to failure to participate and/or an 

assessment of poor fitness 

PHYSICAL FITNESS STANDARD

− Members will receive a composite score on a 0 to 100 scale based on the following 

maximum component scores 

-- 50 points for aerobic fitness assessment 

-- 30 points for body composition (based on abdominal circumference or body 

mass index) 

-- 10 points for push-ups 

-- 10 points for crunches 

− The following fitness levels are determined by a member’s composite score 

-- Excellent (90 or above) 

-- Good (75 to 89.99) 
294 – The Military Commander and the Law 

-- Marginal (70 to 74.99) 

-- Poor (under 70) 

− Members will usually complete their fitness testing according to the following 

timelines 

-- Excellent/good score member must test within 12 months 

-- Marginal score must test within 180 days 

-- Poor score must test within 90 days 

ADMINISTRATIVE AND PERSONNEL ACTIONS

− An unexcused failure to report for a scheduled fitness appointment may be 

punishable as a violation of the UCMJ, including, but not limited to, Articles 86, 90 

or 92 

− Unit commanders should not use administrative action (LOC, LOA, or LOR) for 

members with a poor fitness score for the first 180 days after the member received 

a composite score under 70 if the sole basis for action is the fitness assessment 

-- Unit commanders will take administrative action for unexcused failure to 

participate when an individual fails to accomplish a scheduled fitness test, fails 

to attend a scheduled fitness appointment, or negligently fails to maintain the 

required documentation of exercise while on the Fitness Improvement Program 

(FIP) 

-- Entry into the FIP is required for all members receiving a composite fitness 

score under 70. Upon entry, the member will attend monthly follow-up 

sessions with the fitness program manager (FPM) and will exercise four to five 

times per week, as instructed by the FPM. 

-- Unit commanders will take administrative action for members that have a 

composite score under 70 for greater than 180 days and each subsequent 

composite fitness score under 70 if the member shows no sign of improvement 

-- Failing to make satisfactory progress in the FIP does not in itself constitute a 

violation of the Uniform Code of Military Justice. Unit commanders may not 

impose non-judicial punishment on members solely for failing to achieve a 

score of 70 points or greater. 

-- Commanders will review and determine personnel actions (eligibility for 

reenlistment, retraining, formal training, PME and promotion) for those 
Personnel Issues for the Commander – Military Members - 295 

individuals who are identified with a poor fit assessment for greater than six 

months and each subsequent test thereafter 

-- Unit commanders will make a recommendation to the installation commander 

to discharge or retain a member who remains in the poor fitness category for a 

continuous 12-month period or has 4 poor fitness assessments in a 24-month 

period. See AFI 36-3206 for officer discharge procedures and AFI 36-3208 for 

enlisted discharge procedures. 

-- Attachment 13 of AFI 10-248 lists administrative actions available to 

commanders when dealing with members who are not meeting Fitness Program 

standards 

-- The attachment at the end of this section provides guidance to commanders of 

members with a poor fitness assessment 

FAILING TO PRESENT A PROFESSIONAL MILITARY IMAGE 

− Commanders must ensure members present a professional military image while in 

uniform 

− Commanders may 

-- Require individuals who do not present a professional military appearance 

(regardless of overall fitness composite score) to enter the FIP 

-- Schedule members for fitness education/intervention 

REFERENCE:

AFI 10-248, Fitness Program (7 July 2005) 

AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers (9 June 

2004)

AFI 36-3208, Administrative Separation of Airmen (9 June 2004) 

ATTACHMENT: 

Commander’s Checklist – Member with Poor Fitness Assessment 
296 – The Military Commander and the Law 

COMMANDER’S CHECKLIST -- 

MEMBER WITH POOR FIT ASSESSMENT

(Reference AFI 10-248, Fitness Program)

 PAGE _ OF _ PAGES

N

O

ITEM YES 

w/ 

dates 

NO N/A 

A. TESTING, RETESTING, AND FITNESS REVIEW PANEL: 

1. Unit fitness program manager (UFPM) administers fitness screening 

questionnaire (FSQ) w/in 30 calendar days, but NLT 7 days prior to fit test to 

allow medical evaluation when indicated and files FSQ in member’s PIF (ref 

para 4.2) 

2. Member retests NET 45 and NLT 90 days after each poor fitness assessment – 

unit commander takes admin action for member’s unexcused failure to 

accomplish a scheduled fitness assessment (ref paras 3.4.3, 3.5.3 and 8.2.1.1)

3. UFPM schedules fitness review panel (FRP) meeting when member in the 

poor fit category fails to achieve a higher score on 90-day retest (ref para 

5.4.1)

4. FRP recommendations are documented on AF Form 108 (ref paras 5.4.2.2 and 

8.4.4)

5. Unit commander reviews FRP recommendations and signs AF Form 108 (ref 

paras 5.4.2.2 and 8.4.4)

B. INTERVENTION REQUIREMENTS: 

6. Member attends Healthy Living Workshop (HLW) w/in 10 duty days of poor 

fitness assessment (ref paras 5.2.2 and 5.3.1) 

7. UFPM initiates and annotates HLW requirements and appointments on AF 

Form 108 (ref paras 8.4.1, 8.4.2) 

8. Unit commander and member sign AF Form 108 to confirm all HLW 

appointments – unit commander takes admin action for member’s unexcused 

failure to attend appointments (ref paras 8.2.1.1, 8.4.3) 

9. HLW program facilitator signs AF Form 108 upon member’s completion (ref 

para 8.4.5) 

10. Member enrolls in Fitness Improvement Program (FIP) w/in 10 duty days of 

completing HLW (ref paras 5.2.2 and 5.3.2.1) 

11. UFPM initiates and annotates FIP requirements and appointments on AF Form 

108 (ref paras 8.4.1, 8.4.2) 

12. Unit commander and member sign AF Form 108 to confirm all FIP 

appointments – unit commander takes admin action for member’s unexcused 

 
Personnel Issues for the Commander – Military Members - 297 

COMMANDER’S CHECKLIST -- 

MEMBER WITH POOR FIT ASSESSMENT

(Reference AFI 10-248, Fitness Program)

 PAGE _ OF _ PAGES

N

O

ITEM YES 

w/ 

dates 

NO N/A 

failure to attend appointments (ref paras 8.2.1.1, 8.4.3) 

13. Member in FIP engages in monitored aerobic exercise 4-5x/week, 

accomplished during installation FIP training and/or member’s unit PT 

program (ref para 5.3.2.5) 

14. Member in FIP documents exercise participation on AF Form 1975 or 

electronic tracking system – unit commander takes admin action for member’s 

failure to document as required (ref paras 5.3.2.7 and 8.2.1.1) 

15. Member in FIP has AF Form 1975 signed/validated by FIP class instructor or 

unit fitness leader at the end of each exercise session (ref para 5.3.2.7.1) 

16. UFPM reviews AF Form 1975 monthly for member in FIP (ref para 5.3.2.7.2). 

17. Member in FIP attends monthly follow-up with fitness program manager until 

member achieves a score ≥ 70 (ref para 5.3.2.3) 

18. FIP facilitator signs AF Form 108 upon member’s completion (ref para 8.4.5) 

19. Member enrolls in Body Composition Improvement Program (BCIP) when 

member has a fitness score< 70 AND abdominal measurement > 40 for a male 

or > 35 for a female and attends 1st session w/in 10 duty days of completing 

HLW (ref paras 5.2.2 and 5.3.3) 

20. UFPM initiates and annotates BCIP requirements and appointments on AF 

Form 108 (ref paras 8.4.1, 8.4.2) 

21. Unit commander and member sign AF Form 108 to confirm all BCIP 

appointments – unit commander takes admin action for member’s unexcused 

failure to attend appointments (ref paras 8.2.1.1, 8.4.3) 

22. Member attends monthly follow-up BCIP appointments until member 

achieves score ≥ 70 (ref para 5.3.3.2.6) 

23. BCIP program facilitator signs AF Form 108 upon member’s completion (ref 

para 8.4.5) 

C. REQUIRED PERSONNEL ACTIONS AND RELATED PERSONNEL 

DATA 

24. Unit commander takes appropriate action when member fails to accomplish a 

scheduled fitness assessment, attend a scheduled fitness appointment, or 

maintain the required documentation of exercise while in the FIP (ref para 

8.2.1.1)
298 – The Military Commander and the Law 

COMMANDER’S CHECKLIST -- 

MEMBER WITH POOR FIT ASSESSMENT

(Reference AFI 10-248, Fitness Program)

 PAGE _ OF _ PAGES

N

O

ITEM YES 

w/ 

dates 

NO N/A 

25. Unit commander takes admin action when member’s assessment remains <70 

for >180 days (ref para 8.2.2 and Table A13.1)

26. Unit commander takes additional admin action for each subsequent score <70 

when member shows no signs of significant improvement (ref para 8.2.2 and 

Table A13.1)

27. Unit commander reviews and determines personnel actions (eligibility for 

reenlistment, retraining, formal training, PME, and promotion) when member 

is in poor fitness category > 6 months and after each subsequent poor fitness 

assessment (ref para 8.2.5)

28. Unit commander makes recommendation to installation commander to 

discharge or retain when member remains in poor fitness category for a 

continuous period of 12 months or has 4 poor fitness assessments in 24 

months (ref para 8.2.6)

Unit supplies following personnel data/documents for enlisted members:

a. Copies of all EPRs

b. TAFMSD and current DOS

c. Expiration of current enlistment/date of eligibility for selective 

reenlistment

d. Eligibility for promotion or date of projected promotion

e. Date/location of projected/tasked deployment

f. Eligibility for retraining, formal training, and PME

Unit supplies following personnel data/documents for officer members:

a. Copies of all OPRs

b. TAFMSD and current DOS

c. ADSC

d. Potential recoupment of education assistance, special pay, or 

bonuses 

e. Eligibility for promotion or date of projected promotion

f. Date/location of projected/tasked deployment

g. Eligibility for retraining, formal training, or PME
Personnel Issues for the Commander – Military Members - 299 

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, Uniform Code 

of Military Justice (UCMJ). Airmen who intend to permanently abandon their military 

duties are deserters and are subject to prosecution under Article 85, UCMJ. There are 

certain requirements and considerations the unit must satisfy in handling cases 

involving an unauthorized absence. 

– When an unauthorized absence is discovered, it is important to note the date and 

time 

-- An absence of less than 24 hours is classified as a failure to go 

-- When the absence continues longer than 24 hours, orderly room personnel must 

change the member’s administrative status to "AWOL" 

-- On the 31st day of continuous absence, orderly room personnel must change the 

member’s status to “deserter” 

-- Except as noted below, these actions must normally be taken even if the 

commander suspects that the absence may be legally excused. Consult AFI 36-

2911, Table 1.1, for a comprehensive list of actions to be taken upon realization 

of an unauthorized absence. 

-- 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 servicemember’s name on a database 

civilian law enforcement can access during routine stops. 

– 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 staff judge advocate (SJA) 

for advice in such cases. 

– Under AFI 36-2911, Chapter 2 and Table 1.1, if the member reasonably appears to 

be absent without authority, the commander must

-- Immediate Actions: 

--- Immediately contact the MPF and inform them of the member’s status 
300 – The Military Commander and the Law 

--- Immediately determine if the member meets any of the criteria under AFI 

36-2911, para. 1.5. Criteria include duty or travel restrictions, access to 

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. 

---- If so, immediately change the member’s status to “Deserter” 

---- In cases involving national security, take all appropriate actions 

under para. 2.2.7 

--- Evaluate the case to determine whether AFI 36-3002, Casualty Services, 

applies 

--- Notify Security Forces (SFs) and request assistance once it becomes clear 

that the member is not merely late for duty 

-- After 24 hours of absence: Prepare an AF Form 2098, changing the absentee's 

status to either "AWOL" or "Deserter" as appropriate, and forward it to the 

MPF, with a copy to the local Financial Services Office (FSO). Consult your 

SJA. 

-- On the third day of absence: Prepare and forward a 72 hour inquiry (IAW AFI 

36-2911, para. 2.2.3) to SFS and MPF and re-evaluate whether AFI 36-3002, 

Casualty Services, applies 

-- 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. AFI 36-2911, 

para. 2.2.4. 

-- On the 31st day of absence: 

--- Notify MPF of the member's continued absence; retrieve dependent ID 

cards as required by AFI 36-3026(I), paras. 1.4.1.9 and 4.1 

--- 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 Form 2098 changing status from “AWOL” to “Deserter” 

--- Consult with SJA about filing court-martial charges 

--- Prepare 31st day status report IAW AFI 36-2911, para. 2.2.5 

-- On the 60th day of absence: Notify SF and MPF of the member’s continued 

absence, obtain update input from SF and include it in 60 day status report IAW 

AFI 36-2911, para. 2.2.5 
Personnel Issues for the Commander – Military Members - 301 

-- 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. 

– Civilian and appropriate military authorities may apprehend absentees and 

deserters. Deserters may be arrested summarily by civilian law enforcement agents 

and returned to military control. AFI 36-2911, Chapter 3. 

– 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. See AFI 36-2911, para. 3.2.3. Always consult the SJA in 

these cases. 

– Disposition once the member has been returned to military control is covered by 

AFI 36-2911, Chapter 4 and Table 4.1 

REFERENCES: 

AFI 36-2911, Desertion and Unauthorized Absence (1 June 1998) 

AFI 36-3002, Casualty Services (25 July 2005) 

AFI 36-3026(I), Identification Cards for Members of the Uniformed Services, Their 

Eligible Family Members, and Other Eligible Personnel (20 December 2002) 

AFI 51-201, Administration of Military Justice (26 November 2003) 
302 – The Military Commander and the Law 

LINE OF DUTY DETERMINATIONS

A Line of Duty (LOD) determination is an administrative tool for determining a 

member’s duty status at the time an injury, illness, disability, or death is incurred. On 

the basis of the LOD determination, the member may be entitled to benefits 

administered by the Air Force, or exposed to liabilities. The key is the nexus between 

the injury, illness, disability, or death and the member’s duty status. 

LIMITS ON USE OF LOD DETERMINATION 

− An LOD determination shall not be used as disciplinary action against a member 

− An active duty member cannot be denied medical treatment based on an LOD 

determination. Moreover, an LOD determination does not authorize the United 

States to recoup the cost of medical care from the active duty member. 

− 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 

WHEN LOD DETERMINATIONS ARE REQUIRED

− The LOD process must be initiated when a member, whether hospitalized or not, 

has an illness, injury, or disease that results in 

-- Inability to perform military duties for more than 24 hours 

-- Likelihood of permanent disability 
Personnel Issues for the Commander – Military Members - 303 

-- Death of a member. In every case where a member dies on active duty, at a 

minimum, an AF Form 348 must be completed; an administrative determination 

is not sufficient in a case of death. 

-- Medical treatment of an ARC member regardless of the member’s ability to 

perform military duties 

-- The likelihood of an ARC member applying for incapacitation pay 

POSSIBLE LOD DETERMINATIONS

− Existed Prior to Service (EPTS), LOD Not Applicable: Medical diagnosis 

determined that the death, illness, injury or disease, or the underlying condition 

causing it, existed before the member’s entry into military service or between 

periods of service and was not aggravated by service 

− In Line of Duty: Presumed unless disease, death, illness, or injury occurred while 

member was absent without authority (AWOA) or as a result of member’s 

misconduct 

− Not In Line of Duty, Due to Own Misconduct: A formal investigation determined 

that the member’s illness, injury, disease, or death was proximately caused by the 

member’s own misconduct (regardless of whether member was absent without 

authority) 

− Not In Line of Duty, Not Due To Own Misconduct: A formal investigation 

determined that the member’s illness, injury, disease, or death occurred while the 

member was absent from duty 

PRESUMPTION OF LOD STATUS 

− An illness, injury, disease or death sustained by a member in an active duty status 

or in inactive duty training (IDT) status is presumed to have occurred in the line of 

duty. However, this presumption can be rebutted. 

TYPES OF LOD DETERMINATIONS

− Administrative determinations are made by a medical officer. If the medical officer 

determines that the condition existed prior to service, the medical officer simply 

annotates the member’s medical record with an entry of “EPTS, LOD Not 

Applicable.” If the illness, injury, disease or death falls into one of the following 

conditions, the medical officer makes an administrative determination by finding 

the member’s condition to be “in the line of duty:” incurred as a passenger in a 

common carrier or military aircraft; characterized as a hostile casualty; an illness or 

disease clearly not involving misconduct or caused by abuse of drugs or alcohol; or 

a simple injury which is not likely to result in permanent disability. 
304 – The Military Commander and the Law 

− Informal determinations are processed on AF Form 348 and initiated 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, or is due to the 

member’s own misconduct. 

− Formal determinations are initiated with an AF Form 348, but also include an 

investigation report and a DD Form 261 

-- Required to support a determination of “Not in Line of Duty” 

-- Immediate commander will recommend a formal determination when the 

illness, injury, disease, or death occurred 

--- Under strange or doubtful circumstances, or due to member’s misconduct or 

willful negligence 

--- While the member was absent without authority 

--- Under circumstances the commander believes should be fully investigated 

-- The commander forwards AF Form 348 to the SJA for review for legal 

sufficiency 

LOD AND MISCONDUCT DETERMINATIONS FOR VARIOUS SITUATIONS

− See Attachment 5, AFI 36-2910, for appropriate guidance and rules. Some of these 

rules are based on historic precedents. For more in-depth research, check the 

Digest of Opinions of The Judge Advocate Generals of the Armed Forces. 

REFERENCES: 

AFI 36-2910, Line of Duty (Misconduct) Determination (4 October 2002) 

AFI 36-3002, Casualty Services (25 July 2005) 
Personnel Issues for the Commander – Military Members - 305 

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 SecAF 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. 

− 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 the higher grade has 

been less than satisfactory 

− A commander must submit an OGD request through the MAJCOM if the officer 

has had a 

-- Conviction by court-martial 

-- Conviction by a civilian court for a crime involving moral turpitude 

-- Nonjudicial Punishment within two years of the application for retirement 

− A commander may submit an OGD request through MAJCOM in other cases if he 

or she believes an OGD is appropriate. Factors to consider include, but are not 

limited to, the following 

-- Misconduct which has fallen short of a criminal conviction or Article 15 

punishment 

-- Letters of Reprimand 

-- Unfavorable Information File 

-- Control Roster Actions 

-- Referral Officer Performance Report 

− 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, the commander initiates an OGD 

-- The commander must notify the officer the OGD is being initiated and why 

-- The officer is given ten calendar days to respond 
306 – 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 that retirement in a lower grade may result 

− OGD packages, including matters and documents submitted by the member, are 

forwarded through command channels to AFPC who sends the case file to the Air 

Force Review Boards Agency. It is reviewed by the Air Force Personnel Board 

(AFPB) with a recommendation given 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 the military personnel flight 

REFERENCES: 

10 U.S.C. § 1370, Satisfactory Service for Active Duty Officers 

10 U.S.C. § 12771, Satisfactory Service for Reserve Officers 

AFI 36-3203, Service Retirements (12 September 2003) 

AFI 36-2023, The Air Force Personnel Council and the Air Force Personnel Board

(14 October 1994) 

Secretary of the Air Force Order 240.8 (17 December 1999 ) 

HQ AFMPC/DPMR, Message R 011700Z, Officer Grade Determinations in 

Conjunction with Retirement (June 1995) 
Personnel Issues for the Commander – Military Members - 307 

TATTOOS/BRANDS, BODY PIERCING, AND BODY ALTERATION

The Air Force policy on tattoos/brands, body piercing, and body alteration is found in 

AFI 36-2903, Table 2.5 Failure to comply with the standards concerning 

tattoos/brands, body piercing, and body alteration is punishable under Article 92, 

UCMJ. Members not complying with these provisions are subject to disciplinary 

action and may be involuntarily separated. 

TATTOOS/BRANDS

− The following tattoos/brands are prohibited

-- Unauthorized

--- Tattoos/brands that are either 

---- Obscene or advocate sexual, racial, ethnic or religious discrimination 

---- Prejudicial to good order and discipline 

---- Of a nature to bring discredit upon the Air Force 

--- Unauthorized tattoos are prohibited anywhere on the body, in or out of 

uniform, regardless of whether they can be covered by uniform items or not 

-- Inappropriate

--- Tattoos/brands that 

---- Exceed one-fourth of the exposed body part; or 

---- Are above the collarbone and readily visible when wearing an opencollar uniform 

--- Inappropriate tattoos/brands must be covered using current uniform items 

(e.g., long-sleeved shirt/blouse, pants/slacks, dark hosiery, etc.) or removed 

− 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. 

-- Members with an inappropriate tattoo/brand will cover it with a current uniform 

item or remove it 
308 – The Military Commander and the Law 

-- Depending on the circumstances, commanders may seek Air Force medical 

support for voluntary removal of inappropriate tattoos 

− The member's commander determines on a case-by-case basis whether or not a 

tattoo/brand is unauthorized or inappropriate 

-- Installation or higher commanders may impose more restrictive standards for 

tattoos/brands and body ornaments, on or off duty, in those locations where Air 

Force-wide 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, or other exposed body part 

(which includes visible through the clothing), when 

-- Wearing a military uniform 

-- Performing official duty in civilian attire 

-- Wearing civilian attire on a military installation 

− Females in uniform or in civilian clothes while on duty may wear one small, 

spherical, conservative, 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 

− In civilian clothes while off duty but on a military installation, females may wear 

conservative earrings within sensible limits 

− By implication, the policy allows males to wear earrings when in civilian clothes 

while off duty and off the military installation, but not on the military installation 

− Installation or higher commanders may impose more restrictive standards for 

tattoos/brands and body ornaments, on or off duty, in those locations where Air 

Force-wide standards may not be adequate because of cultural sensitivities or 

mission requirements 
Personnel Issues for the Commander – Military Members - 309 

-- 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 

− Situations may arise where a commander may restrict the wear of even nonvisible 

body ornaments 

-- These situations include any ornamentation that may interfere with the 

performance of the member's military duties 

-- The 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 or 

alteration 

-- Is intentional; and 

-- Results in a visible, physical effect that 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 

REFERENCES: 

AFI 36-2903, Dress and Personal Appearance of Air Force Personnel (29 September 

2002) 

AFI 36-2002, Regular Air Force and Special Category Accessions, Attachment 2 (7 

April 1999)

Personnel Issues for the Commander – Family and Next of Kin - 311 

CHAPTER EIGHT: 

PERSONNELISSUES FOR THE 

COMMANDER – FAMILYAND NEXT OF KIN 

Family Member Misconduct......................................................................................312 

Removal from Base Housing.....................................................................................314 

Spouses' Clubs...........................................................................................................315 

Family Day Care Homes ...........................................................................................317 

Child Development Programs....................................................................................321 

Summary Court Officers............................................................................................323 

Disposal of Personal Property ...................................................................................325 
312 – The Military Commander and the Law 

FAMILY MEMBER MISCONDUCT

Installation commanders must constantly try to resolve difficult problems arising from 

family member misconduct. The installation commander is responsible for 

maintaining good order and discipline, and for 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) 

--- BX / Commissary 

--- MWR facilities 

--- Commercial solicitation 

-- Terminate military family housing

--- Requires 30 days written notice 

--- Air Force pays for the move 

-- Debarment (must still provide access to medical treatment if authorized and 

available) 

--- 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. 

− Criminal actions 

-- Criminal actions depend upon the jurisdiction of the base 
Personnel Issues for the Commander – Family and Next of Kin - 313 

-- If the base is under exclusive federal jurisdiction, family members may be 

prosecuted in federal magistrate court. This is a federal prosecution and 

potentially 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 

jealous of their jurisdiction over juveniles. Refer this issue to your SJA. 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 6055.4, DoD Traffic Safety Program (20 July 1999) 

AFI 31-204, Air Force Motor Vehicle Traffic Supervision (14 July 2000) 

AFI 32-6001, Family Housing Management (23 January 2002) 

AFI 34-249, Youth Programs (1 June 2000) 

AFI 36-3026(I), Identification Cards for Members of the Uniformed Services, Their 

Eligible Family Members, and Other Eligible Personnel (20 December 2002) 

AFI 51-905, Use of Magistrate Judges for Trial of Misdemeanors Committed by 

Civilians (1 June 1998) 
314 – The Military Commander and the Law 

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 

− 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, or 

-- The member or dependent family members are responsible for the willful, 

malicious or negligent abuse or destruction of property 

− Cases involving early termination must be fully documented and should be retained 

on file. An involuntary move from military family housing is at government 

expense. 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/in writing) before the commander 

makes his or her decision. 

REFERENCES: 

AFI 32-6001, Family Housing Management (23 January 2002) 
Personnel Issues for the Commander – Family and Next of Kin - 315 

SPOUSES' CLUBS

THE ROLE OF SPOUSES' CLUBS 

Officer or NCO Spouses' Clubs are private organizations that the installation 

commander may authorize to operate on a base when he or she concludes the 

organization will make a positive contribution to the lives of base personnel 

SOURCES OF AUTHORITY 

− Because spouses' clubs are private organizations, it's important to remember these 

organizations are composed of people "acting outside the scope of any official 

position they may have in the federal government" 

-- Thus, 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 

-- However, many of the activities that spouses' clubs engage in are subject to 

state and federal laws and regulations 

-- Moreover, they are bound by the terms of their Constitutions and Bylaws 

− To operate on Air Force installations, spouses' clubs, like other private 

organizations, must comply with AFI 34-223, governing the basic responsibilities, 

policies, and practices of private organizations. Further, AFI 34-223 defines and 

classifies private organizations. 

-- It provides policy for their establishment and gives guidance on how they may 

operate 

-- It sets out responsibilities for commanders, their staffs, and members of private 

organizations located on Air Force installations 

RESTRICTIONS ON SPOUSES' CLUBS 

− AFI 34-223, para. 10.1, prohibits a private organization from using in its title or 

letterhead the name or seal of the Department of Defense, including the acronym 

"DoD." It also prohibits use of the name, abbreviation, or seal of any military 

department or service. Furthermore, private organizations may not use the seal, 

insignia, or other identifying device of the local installation. 
316 – The Military Commander and the Law 

− AFI 34-223, para. 10.2, prohibits membership or hiring discrimination based on 

age, race, religion, color, national origin, ethnic group or gender 

− Spouses' clubs must not engage in activities that duplicate or compete with any 

activities of the Army and Air Force Exchange Service (AAFES) or any other 

nonappropriated fund instrumentality (NAFI) 

-- With the exception of thrift shop sales of used clothing and other used 

merchandise, private organizations 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 fund 

raising purposes 

-- If a club is planning any such fund raising activity, it should first get written 

permission from the installation commander (or designee) 

− Private organizations are prohibited from soliciting funds for their organization on 

base 

− The instruction specifically prohibits games of chance, lotteries, or other gambling 

activities except under limited circumstances. Raffles that comply with city, 

county, state, federal (and/or international) law and that are conducted infrequently 

for the benefit of DoD personnel and their family members as a community are 

permitted when such requests have been reviewed by the SJA and have been 

authorized in advance by the installation commander (or designee). 

REFERENCES: 

AFI 34-223, Private Organization (PO) Program (11 August 2003) 

AFI 36-3101, Fundraising within the Air Force (12 July 2002) 
Personnel Issues for the Commander – Family and Next of Kin - 317 

FAMILY DAY CARE HOMES

The purpose of establishing a family child care program on an Air Force installation is 

to make child care available to military members so that they can more successfully 

perform their military mission, secure in the knowledge that their children’s safety, 

health, and well-being are protected 

LICENSING REQUIREMENTS 

− Any individuals caring for other families’ children a total of more than 10 hours a 

week on a regular basis must be licensed to provide care in on-base quarters 

-- The requirement to be licensed is computed by multiplying the number of hours 

the provider offers care on a regular basis by the number of children in care 

-- This requirement does not apply to 

--- Individuals who occasionally provide care for a friend or neighbor 

--- Individuals providing baby-sitting on an occasional basis for other families 

--- Teenagers doing evening or weekend baby-sitting for families 

--- Child care provided in the parents’ own home 

--- Parent daycare cooperatives 

--- Temporary full-time care of a child during a parent’s absence for temporary 

duty or deployment by the person listed on the AF Form 357, Family Care 

Plan 

− Those who wish to be licensed do so by submitting an AF Form 1928, Family Day 

Care License Application 

REQUIREMENTS TO BECOME A PROVIDER

− Applicants must 

-- Be at least 18 years of age 

-- Have the ability to read, speak, and write English 

-- Be physically and mentally capable of providing care 
318 – The Military Commander and the Law 

-- Be willing and able to complete the training required of family child care 

providers 

-- Be willing to agree in writing to the requirements for family child care 

providers 

-- Be able to obtain the required insurance coverage 

PROHIBITIONS AGAINST LICENSING

− Applicants will not be licensed if 

-- They have had their family child care license revoked on another military 

installation 

-- They or any of their household members have been arrested for or convicted of 

child abuse or neglect, a criminal act involving violence, or other acts which 

would make them unsuitable for caring for children 

-- They or any of their household members have a history of domestic violence or 

mental or physical illness that would suggest they are not suitable for caring for 

children 

-- If they or any of their household members have been the perpetrator in a 

substantiated case of child abuse or neglect 

-- They are active duty members 

− A provider can care for no more than 6 children including the provider’s own 

children under the age of 8 at one time 

− A provider may not care for more than 2 children under 2 years of age including the 

provider’s own children 

− If the county, state, or country in which the family day care home is located 

requires individuals that provide care in their home to be licensed, certified, or 

registered, family day care providers must have these approvals 

− Applicants’ homes must be inspected prior to receiving a license 

SUSPENSIONS AND REVOCATIONS

− The license of a family child care provider will be suspended if:

-- They are under investigation for child abuse or neglect 
Personnel Issues for the Commander – Family and Next of Kin - 319 

-- They have a household member who is under investigation for child abuse or 

neglect 

-- They are under investigation for a criminal act or have a household member 

under investigation for a criminal act 

-- They have life-threatening deficiencies in their homes 

-- They do not correct deficiencies identified in monthly inspections 

-- They have a long-term communicable illness that could affect the health of 

children 

-- They are experiencing extreme stress as a result of some unexpected personal or 

family situation 

− The license of a family child care provider will be revoked if:

-- They have committed substantiated child abuse or neglect 

-- They have a household member who has committed substantiated child abuse 

or neglect 

-- They have been found to have a history of substantiated child abuse or neglect 

-- They exhibit a pattern of using inappropriate guidance techniques 

-- They exhibit a pattern of non-compliance with Air Force requirements for 

family child care homes 

-- They have committed a criminal act or have a household member who has 

committed a criminal act that impacts on their ability to provide in-home child 

care 

-- They do not correct life-threatening deficiencies 

− The support group commander or wing commander has the final authority and 

responsibility for suspending and revoking family child care licenses 

GENERAL PROGRAM RULES

− After a provider is approved, they will be subject to monthly, unannounced home 

visits 

− Providers are required to report any suspected abuse or neglect to the family 

advocacy office and family child care coordinator 
320 – The Military Commander and the Law 

− Providers are not permitted to use negative punishments such as harsh verbal 

direction, shaming, belittling, spanking, hitting, arm-twisting, or withholding food 

or drink 

− Each family day care provider must have at least $300,000 personal liability 

insurance before accepting children for care and automobile liability insurance if 

children are transported in a vehicle 

REFERENCE: 

AFI 34-276, Family Child Care Programs (1 November 1999) 
Personnel Issues for the Commander – Family and Next of Kin - 321 

CHILD DEVELOPMENT PROGRAMS

INSTALLATION COMMANDER RESPONSIBILITIES

− Installation commanders are charged with (1) establishing child development 

programs on the installation to provide child care for employed active duty and 

DoD civilian parents of children 0 to 12 years of age; (2) making resources 

available to make child care services affordable; and (3) ensuring children's health, 

safety, and well-being is protected while they are in child development programs 

− The administration of child development programs is highly regulated. For 

example, AFI 34-248, Child Development Centers, establishes very detailed rules 

governing, among others, the following topics: facilities and equipment, fire 

protection, curriculum, staff-to-child ratios, nutrition and food service, child abuse 

protection, health, and safety. 

− Short-term hourly care, extending no longer than 1 hour before the start and 1 hour 

after the end of the function for which the care is being offered, can be made 

available if family child care providers or another Services program, such as the 

Youth Program, are otherwise unavailable 

− As an alternative to the Child Development Center, each installation with military 

family housing must have a procedure for approving individuals to provide family 

child care in on-base quarters on the installation. These providers often offer child 

care for extended hours for military members who work a swing shift or night shift 

and for special needs children. 

-- Program oversight is provided by the Family Day Care Office and by the 

Family Child Care Panel 

-- Rigid requirements are in place to ensure providers are qualified and licensed 

and insured 

-- Strict guidelines are maintained on to ensure children’s health, safety, and wellbeing are protected 

AIDS & HIV ISSUES

− HIV-positive children may be enrolled when it is appropriate for their health, 

neurological development, behavior, and immune status; however, routine 

screening of children for HIV prior to program entry is not required 
322 – The Military Commander and the Law 

− The CDC director must inform only those with a need to know about the HIVpositive child’s condition. This does not usually include other staff in the center or 

the parents of the other children enrolled. 

− HIV-positive individuals may be employed in child care programs and HIVpositive individuals may be approved as family child care providers unless their 

care would endanger their health or that of others 

− Persons with AIDS (Acquired Immune Deficiency Syndrome), or persons with 

family members exhibiting symptoms of AIDS, may not be employed in child care 

or approved as family child care providers 

REFERENCES: 

AFI 34-248, Child Development Centers (1 October 1999) 

AFI 34-276, Family Child Care Programs (1 November 1999) 
Personnel Issues for the Commander – Family and Next of Kin - 323 

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 34-244, Disposition of Personal 

Property and Effects. For deceased DoD civilians, see AFI 34-244, para. 4.4, and AFI 

36-809, Civilian Survivor Assistance. 

− 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 or guardian. 

-- Parents in order of age. If parents divorced 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 of personal effects 

-- The mortuary officer (MO) inventories, cleans, and secures the personal effects 

-- The 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 
324 – The Military Commander and the Law 

-- The MO may only destroy personal effects after receiving written authorization 

by the authorized recipient 

− Handling and disposing of 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 for anyone with a claim for or against the estate to step forward 

-- Inventories all property on AF Forms 1122 and 1122A 

-- 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 34-244 

-- 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 

REFERENCES: 

AFI 34-244, Disposition of Personal Property and Effects (2 March 2001) 

AFI 36-809, Civilian Survivor Assistance (1 July 2003) 

AFI 36-3002, Casualty Services (25 July 2005) 
Personnel Issues for the Commander – Family and Next of Kin - 325 

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, medical evacuation, loss, abandonment or a failure to claim. The 

Secretary of the Air Force is authorized to dispose of such property pursuant to 10 

U.S.C. §§ 2575 and 9712. 

Special procedures are established in AFI 34-242, Mortuary Affairs Program, and AFI 

34-244, Disposition of Personal Property, for 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) 

− A Summary Court Officer (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

− The 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 

− The SCO, if appointed, secures, inventories and disposes of the property to those 

authorized to receive it in the event of the member’s death 

REFERENCES: 

AFI 34-242, Mortuary Affairs Program (7 January 2005) 

AFI 34-244, Disposition of Personal Property and Effects (2 March 2001) 

AFI 34-1101, Assistance to Survivors of Persons Killed in Air Force Aviation Mishaps 

and Other Incidents (1 October 2001)

The Air Force Legal Assistance Program - 327 

CHAPTER NINE: 

THE AIR FORCE LEGALASSISTANCE

PROGRAM 

Overview of Legal Assistance Program ....................................................................328 

Notaries......................................................................................................................332 

Preventive Law Program ...........................................................................................335 

Wills and Powers of Attorney....................................................................................337 
328 – The Military Commander and the Law 

OVERVIEW OF LEGAL ASSISTANCE PROGRAM

Under 10 U.S.C. § 1044, the armed services may provide legal assistance to eligible 

beneficiaries concerning personal, civil legal problems, subject to the availability of 

legal staff resources. Legal assistance in the Air Force is provided in accordance with 

AFI 51-504. 

LEGAL ASSISTANCE PROGRAM STRUCTURE

− The Air Force has structured the program into two general categories 

-- Mobility/deployment-related 

-- Non-mobility or deployment-related legal assistance 

− Mobility/deployment-related Legal Assistance: Ensures the legal difficulties of 

military members do not adversely affect command effectiveness or mission 

readiness. 

-- Beneficiaries include 

--- Active duty members, including reservists and guardsmen on federal active 

duty under Title 10 U.S.C., and their family members who are entitled to an 

ID card 

--- Civilian employees stationed overseas and their family members who are 

entitled to an ID card and reside with them 

--- Reservists and National Guard not on Title 10 status, but who are subject to 

federal mobilization in an inactive status, are eligible for legal assistance for 

wills and powers of attorney 

--- 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 

--- Foreign military personnel may be provided legal assistance in limited 

circumstances for specific matters 

-- Areas of legal assistance include 

--- Wills, living wills, powers of attorney, and notaries 

--- Servicemembers Civil Relief Act and Veterans' reemployment rights issues 
The Air Force Legal Assistance Program - 329 

--- Casualty affairs 

--- Family care plan issues 

--- Landlord-tenant and lease issues 

--- Tax assistance 

--- Other issues deemed mission related by TJAG, MAJCOM SJA, NAF SJA, 

the base SJA, or the commander 

− Non-Mobility or Deployment Legal Assistance: Not specifically defined in the 

instruction; however, it is limited to personal, civil legal problems. Base legal 

offices must provide nonmobility-related legal assistance as resources and expertise 

permit, as determined by the SJA. 

-- Beneficiaries include: Personnel eligible for deployment-related legal 

assistance; retired personnel and their family members who are entitled to ID 

cards, and unremarried former spouses entitled to an ID card; and active or 

retired officers of the commissioned corps of the Public Health Service 

− A third category of legal assistance relates specifically to personal, civil legal 

problems arising out of the terrorist incidents of 11 September 2001 

-- Beneficiaries include: personnel eligible for mission-related and nonmissionrelated legal assistance. Injured DoD civilian employees and the next of kin of 

deceased or dying DoD civilian employees victimized in the 11 September 

2001 terrorist incidents. 

MATTERS OUTSIDE THE SCOPE OF THE PROGRAM

− The following are specifically considered outside the scope of legal assistance 

-- Business or commercial enterprises (except in relation to the SCRA) 

-- Criminal issues 

-- Standards of Conduct issues 

-- Law of Armed Conflict issues 

-- Official matters in which the Air Force has an interest, specifically including 

Bank of America government travel card matters 

-- Legal concerns or issues raised on behalf of another person 
330 – The Military Commander and the Law 

-- Representation of a client 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 

ETHICAL CONSIDERATIONS

− Ethical considerations include 

− Information received from a client during legal assistance, and documents relating 

to the client are legally confidential and privileged 

-- 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 legal assistance officer is representing the 

interests of that particular client 

-- If the commander needs advice concerning the matter, he or she should contact 

the SJA 

-- The SJA represents the interests of the Air Force and the commander, unlike 

the individual legal assistance officer who primarily represents the interests of 

the particular legal assistance client 

− Referral: Due to the scope and limitations of the program, as well as the particular 

needs of the client, it is often necessary to refer clients to other sources, such as a 

civilian attorney (through the local bar referral service), the area defense counsel, 

chaplain, EEO counselor, social actions, Military Personnel Flight, family 

advocacy or the Family Support Center 

REFERENCES: 

10 U.S.C. § 1044, Legal Assistance 

DoDI 1400.32, DoD Civilian Work Force Contingency and Emergency Planning 

Guidelines and Procedures (24 Apr 1995) 

DoDI 3020.37, Continuation of Essential DoD Contractor Services During Crises (26 

January 1996) 

AFI 51-504, Legal Assistance, Notary and Preventive Law Programs (27 October 

2003) 
The Air Force Legal Assistance Program - 331 

AFPD 51-5, Military Legal Affairs, Section C (27 September 1993) 

TJAG Special Subject Letter 2003-3: Legal Assistance for Foreign Military Personnel 

and Dependents (4 September 2003) 

TJAG Special Subject Letter 2002-1, Providing Legal Assistance in Bank of America 

Travel Card Debt Cases (28 January 2002) 

TJAG Special Subject Letter 2001-8, Legal Assistance to Participating Guard and 

Ready Reserve Members (27 September 2001) 

TJAG Special Subject Letter 2001-7, Legal Assistance to DoD Civilian Employee 

Victims of 11 September 2001 Terrorist Incidents (18 September 2001) 

TJAG Policy Letter 18, Preventive Law and Legal Assistance Policy (2 April 1998) 
332 – The Military Commander and the Law 

NOTARIES

Many important documents should be or are required by law to be notarized. 

Notarization demonstrates that the person who signed the document is, indeed, the 

person who is required to sign the document, and can also confirm that the person 

made an oath as a part of executing the document. 

WHO IS ELIGIBLE FOR AIR FORCE NOTARY SERVICE

− Personnel eligible for notary service executed under Title 10 of the U.S. Code are 

-- Members of the armed forces 

-- Other persons eligible for legal assistance under 10 U.S.C. §1044 or other 

regulations of the DoD (for the Air Force: AFI 51-504) 

-- Persons serving with, employed by, or accompanying the armed forces outside 

the U.S., Puerto Rico, Guam, and the Virgin Islands 

-- Other persons subject to the UCMJ outside the U.S 

WHO MAY NOTARIZE DOCUMENTS UNDER THIS PROGRAM

− Under 10 U.S.C. §1044a and Air Force instructions, the following individuals have 

the general powers of a notary public and of a consul of the United States in the 

performance of all notarial acts to be executed by certain eligible personnel 

-- Judge advocates on active duty 

-- Reserve judge advocates (at any time, not just when active duty or performing 

inactive duty training) 

-- Civilian attorneys serving as legal assistance officers 

-- Adjutants, assistant adjutants, and personnel adjutants on active duty (or 

performing inactive duty training) 

-- Enlisted paralegals, E-4 or higher, on active duty (or performing inactive duty 

training) 

-- Officers or senior NCOs (MSgt and above) stationed at geographically 

separated units (GSUs) or remote locations where no judge advocate or 

paralegal notary is assigned, who have been designated in writing by the GSU’s 

servicing general court-martial convening authority staff judge advocate (SJA) 
The Air Force Legal Assistance Program - 333 

SPECIAL RULES FOR CERTAIN MILITARY INSTRUMENTS

− 10 U.S.C. 1044b, 1044c, and 1044d, respectively, provide for the execution of 

military powers of attorney, military advance medical directives (living wills), and 

military testamentary instruments (wills). 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

− Notary procedures and guidelines include 

-- Personnel signing documents as a notary under 10 U.S.C. § 1044a must 

--- Specify date and location and list title and office 

--- Use an inked stamp or a raised seal that contains the words "Notary Public 

Authorized Under 10 U.S.C. Section 1044a" 

--- Verify the identity of each person whose signature is to be notarized 

(usually with an ID card) 

--- Administer an oath for any "sworn" document 

--- Maintain a personal notary log, which includes each signer’s name and 

signature, type of document, date, and location, and remains with the 

individual notary 

-- Personnel signing documents as a notary under 10 U.S.C. § 1044a must not 

--- Accept any fees for the performance of a notarial act 
334 – The Military Commander and the Law 

--- Certify a copy as a "certified copy" unless they are the custodian of the 

original (only the custodian of the original document can create "certified" 

copies) 

--- Certify a copy of any document as a true and accurate copy or notarized 

copy (as compared to a certified copy) without comparing it to the original 

REFERENCES: 

10 U.S.C. § 1044a, Authority to Act as Notary 

AFI 51-504, Legal Assistance, Notary and Preventive Law Programs (27 October 

2003) 
The Air Force Legal Assistance Program - 335 

PREVENTIVE LAW PROGRAM

The Air Force Preventive Law Program's purpose is to educate military members and 

their families on legal issues in order to allow them to focus upon mission 

requirements, to prevent legal problems from occurring, and to reduce the time and 

resources needed to correct legal problems when they do occur. The program includes 

information on all legal matters, not just legal assistance issues. 

PROGRAM EMPHASIS AND CONTENT

− Every base must have a preventive law program that includes, as a minimum 

-- Deployment Preparation: Educating members on personal legal needs for 

mobility readiness, such as the importance of preparing wills and powers of 

attorney 

-- Commander Awareness: Educating commanders and staff agencies on the full 

range of legal services provided by the legal office and on all legal matters 

affecting command 

-- Tax Assistance: Establishing an active, well publicized, tax program; and 

-- Legal Assistance and Consumer Protection: Providing information on personal, 

civil legal matters 

HOW THE PREVENTIVE LAW PROGRAM WORKS

− The program is administered through JAG functional channels and its scope at a 

given base depends on the available resources of the base SJA and the judge 

advocate appointed as the base preventive law officer 

-- Rather than focusing on individual legal assistance clients, the program consists 

of an aggressive base-wide education program 

-- Examples of activities that are part of the preventive law program include 

--- Conducting oral presentations at commander and first sergeant seminars, 

commanders' calls, staff meetings, base committee meetings, and 

newcomers' orientations 

--- Submitting articles for base newspapers, daily bulletin notices, or unit 

bulletin boards; preparing handouts or pamphlets on topics of interest for 

distribution at the legal office or other appropriate offices, such as the 

Family Support Center 
336 – The Military Commander and the Law 

--- Base radio or television programs 

--- Presenting legal training workshops for law enforcement personnel 

REFERENCES: 

AFI 51-504, Legal Assistance, Notary and Preventive Law Programs, Chapter 3 (27 

October 2003) 

AFPD 51-5, Military Legal Affairs (27 September 1993) 
The Air Force Legal Assistance Program - 337 

WILLS AND POWERS OF ATTORNEY

To ensure mission readiness, members must effectively manage their personal and 

financial affairs. Wills and Powers of Attorney (POAs) can be very useful, especially 

for members with mobility responsibilities. A will is an instrument by which a person 

(testator) makes a disposition of their property to take effect after their death. A POA 

is a document by which a person conveys the authority to handle specified affairs. 

Commanders should emphasize the importance of preparing wills, POAs, and other 

necessary documents prior to deployment, preferably upon initial assignment to a unit 

or to a mobility position. 

WILLS

− Most people should have a will, especially the following 

-- Personnel with minor children 

--- Without a will, a court has little valid guidance to help determine where to 

place minor children 

--- The court will normally follow the designation of a guardian for the 

children in a will. More importantly, such designation normally prevents 

indecision and family disputes concerning who will now care for orphaned 

children. 

-- Personnel with extensive or certain valuable property 

− Even as between husband and wife with little property other than a house, a 

surviving spouse may find settling affairs easier with a will. Many states have 

"family probate" laws which allow a spouse to probate a valid will without a lawyer 

and with minimal expense. 

− Without a will, property is distributed according to state law 

-- Generally, state laws leave all property in the following order of precedence: 

surviving spouse; children; parents; then siblings 

-- Each state's scheme varies, but generally the property will only pass to blood 

relatives, not to in-laws or stepchildren 

-- A common misconception is that without a will, all of a person's property goes 

to the state. Normally, a state will not receive the property unless there are no 

surviving relatives. 
338 – The Military Commander and the Law 

-- If a member does not want state law to determine what happens to his estate, 

the member must make a valid will 

− A will is normally written in general language and will be effective until changed 

or revoked by the testator. However, events may impact specific provisions in the 

will. Therefore, a will should be reviewed periodically and whenever any of the 

following occur. 

-- 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 

− The requirements for making a valid will vary widely from state to state. The base 

legal office ensures each member's will is validly executed under the applicable 

state law. For this reason, members should avoid "do-it-yourself" wills. 

− As discussed further in this chapter, 10 U.S.C. § 1044d exempts military 

testamentary instruments (wills) from any requirement of form, formality, or 

recording that is required under the laws of a state. "Do-it-yourself" wills do not 

receive this protection. 

POWERS OF ATTORNEY

− A POA is a document that allows someone else to act as your legal agent. Though 

the agent may not be an attorney-at-law, he or she becomes an “attorney-in-fact” 

when granted authority under a POA. POAs are available at virtually any legal 

office and should be tailored to a given situation. 

-- Special POA

--- Grants limited authority to accomplish specific transactions. Duration is 

limited by the person giving the POA or to a reasonable time within which 

to accomplish the transaction, usually not more than 1 year. 

--- Examples include buying or selling real estate, purchasing or selling a car, 

shipping or storing household goods 

-- General POA

--- Gives comprehensive authority over virtually all legal (and probably 

nonlegal) affairs. Basically, the person named can do any and all things the 

grantor could do. 
The Air Force Legal Assistance Program - 339 

--- 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 very serious problems of all kinds, i.e., financial or legal, for the 

grantor 

--- Many banks and realtors will not accept a General Power of Attorney for 

the purchase or sale of real estate, and require a Special POA containing the 

legal description of the property and the actions authorized 

-- 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 

--- Allows the attorney-in-fact to make decisions or manage affairs on behalf of 

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 

--- It generally eliminates the need for a court to establish a guardian and 

conservator for the incapacitated person 

− General considerations 

-- Although a POA can be very useful, it can be abused as well. Personnel should 

be careful choosing to whom they grant authority. 

-- Third parties, e.g., businesses or banks, may or may not accept a POA, at their 

discretion 

-- It is impossible to guarantee a POA will not be misused. To revoke a POA 

before its expiration, personnel may execute a Revocation of POA and give a 

copy to any person that might deal with the person who has the original POA. 

− Military Powers of Attorney and Wills

-- 10 U.S.C. §§ 1044b, 1044c, and 1044d, respectively provide for the execution 

of military powers of attorney, military advance medical directives (living 

wills), and military testamentary instruments (wills). These documents 
340 – The Military Commander and the Law 

-- 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. 

REFERENCES: 

10 U.S.C. §§ 1044(b)-(d) 

DoDD 1350.4, Legal Assistance Matters (28 April 2001) 

AFI 51-504, Legal Assistance, Notary, and Preventive Law Programs (7 October 

2003)
Civil Rights and Protections of Military Personnel - 341 

CHAPTER TEN: 

CIVILLAW RIGHTS AND PROTECTIONS OF

MILITARY PERSONNEL 

Equal Opportunity and Treatment .............................................................................342 

The Inspector General Complaints Resolution Process.............................................349 

Prohibition on Sexual Harassment.............................................................................355 

Political Activities by Air Force Members................................................................364 

Membership and Participation In Hate Groups.........................................................368 

Servicemembers Civil Relief Act ..............................................................................369 

Uniformed Services Employment and Reemployment Rights Act ...........................371 

Uniformed Services Former Spouses' Protection Act ...............................................375 

Right to Financial Privacy Act ..................................................................................379 
342 – The Military Commander and the Law 

EQUAL OPPORTUNITY AND TREATMENT

INTRODUCTION

Many statutes have been enacted by the federal government to ensure equal 

opportunity and treatment (EOT). Almost all of these apply to civilian employees as 

victims. They do not cover military members as victims, but DoD and Air Force antidiscriminatory 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 EOT statutes 

-- Title VII of the Civil Rights Act of 1964 

-- Equal Opportunity Act of 1972 

-- The Rehabilitation Act of 1973 

-- The Age Discrimination Act of 1978 

-- The Civil Rights Act of 1991 

CIVIL RIGHTS ACT OF 1964 

− The Civil Rights Act of 1964 is the most important single source of antidiscrimination 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 

− The federal government was originally excluded from coverage of Title VII, but in 

1972, Congress passed the Equal Employment Opportunity Act that made Title VII 

applicable to federal agencies 

EQUAL OPPORTUNITY ACT OF 1972 

− The Equal 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 
Civil Rights and Protections of Military Personnel - 343 

− 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 

− 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 

AGE DISCRIMINATION ACT OF 1978 

− The Age Discrimination Act of 1978 forbids illegal discrimination on the basis of 

age for people over 40 years old 

− The law does apply 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 discrimination victims 

− Compensatory damages (i.e., pain and suffering; emotional distress; etc.) 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 O&M funds 

AIR FORCE POLICY 

− The Air Force 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 must take appropriate administrative or disciplinary action to 

eliminate or neutralize discrimination and its effects 
344 – The Military Commander and the Law 

AIR FORCE EQUAL OPPORTUNITY AND TREATMENT PROGRAM

− AFI 36-2706, Chapters 4 & 5, set out the Air Force Equal Opportunity and 

Treatment (EOT) 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, etc.) 

--- 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 

-- Military Equal Opportunity (MEO) Office is the OPR for the Air Force EOT 

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), instances concerning homosexual conduct 

(which will generally involve an inquiry by the commander), and complaints 

against senior officials, colonels and colonel selects (investigated by the 

inspector general (IG) 

INSTALLATION COMMANDER’S RESPONSIBILITIES

− Provide an environment free from unlawful discrimination and sexual harassment 
Civil Rights and Protections of Military Personnel - 345 

− 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 

− Communicates 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 at least every 6 

months through the Installation Climate Assessment Committee 

− Ensure appropriate disciplinary and corrective actions are taken if unlawful 

discrimination or reprisal is substantiated 

− Review all closed EOT 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 EOT complaints without fear of reprisal 

− Inform members through briefings and EOT 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 EOT 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 

− Take action to end unlawful discrimination or sexual harassment when a formal 

MEO complaint/incident is substantiated 

− Enforce EOT policy in a fair, impartial, and prompt manner 

− Ensure rating and evaluating officials evaluate compliance with EOT directives and 

document repeated or serious violations 
346 – The Military Commander and the Law 

− Informs alleged offender they are the subject of a formal MEO complaint, ensure 

they are cautioned against taking reprisal or other retaliatory actions, and ensures 

the alleged offender is briefed on the outcome of the MEO case when it is closed 

and advises on their right to appeal 

− Accomplishes 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 

-- Complaints against senior officials, colonels and colonel selects must be 

immediately referred to SAF/IGS; commanders must notify MAJCOM IGQs 

and DP SAF/IGQ of EOT complaints involving colonels or colonel selects 

-- Complaints involving allegations of homosexual conduct must be immediately 

referred to the subject's military commander 

-- Complaints involving criminal activity such as assault, rape, or child abuse 

must be immediately coordinated with the staff judge advocate (SJA) for a 

determination of whether the matter should be referred for criminal 

investigation 

-- Complainants may elect to use informal complaint process, which may include 

alternate dispute resolution (ADR) 

-- When MEO investigates a complaint of discrimination, it is called a 

clarification and the allegation is documented on AF IMT 1587 

-- Base-level MEO personnel conduct clarifications of formal complaints 

--- The purpose of clarification is to determine whether a formal complaint is 

supported 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 SJA to the 

offender’s and the complainant’s commander for appropriate action 

-- Both the complainant and the subject of a formal EOT complaint may appeal 

the findings upon completion of complaint clarification 
Civil Rights and Protections of Military Personnel - 347 

--- Only the finding that resulted from the clarification, whether it is a finding 

of discrimination or of no discrimination, can be appealed 

-- 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 

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 EOT guidelines they would be 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 EOT 

personnel (MEO), an IG, members of Congress, 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 
348 – The Military Commander and the Law 

− Reprisal complaints are referred by MEO to the installation IG for investigation 

REFERENCES: 

AFI 36-1201, Discrimination Complaints (25 July 1994) 

AFI 36-2706, Military Equal Opportunity and Treatment Program (29 July 2004) 

AFI 90-301, Inspector General Complaints Resolution (8 February 2005) 
Civil Rights and Protections of Military Personnel - 349 

THE INSPECTOR GENERAL COMPLAINTS 

RESOLUTION PROCESS

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. 

(Unless otherwise stated, all paragraph references in this section refer to AFI 90-301, 

Complaints Resolution Program, 8 February 2005) 

OVERVIEW

– 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. (para. 1.43.) 

– Only the IG has the authority to process allegations of the “big three:” reprisal, 

restricted access, and improper mental health evaluation referrals, discussed below 

– The IG may not be used for: 

-- Matters normally addressed through other channels unless mishandled there 

(para. 1.44.1) 

-- Inappropriate matters, listed in AFI 90-301, Table 2.9 (e.g., EEO, UCMJ) 

-- TIG may use IGS (Senior Official Inquiries Directorate) to investigate any 

potential problems or wrongdoing 

IG PERSONAL COMPLAINTS INVESTIGATIONS 

– IG investigations are distinct from other investigations, such as commanderdirected (CDIs) 

– The IG investigates pursuant to AFI 90-301 when properly authorized, in writing, 

by the Appointing Authority (e.g., Wing CC) (para. 1.5) 

– The IG does not investigate all complaints. A complaint analysis may result in a 

referral (including to a commander to consider a CDI) or dismissal of the 

allegations. (Table 2.8) 
350 – The Military Commander and the Law 

– The standard of proof to substantiate an allegation during an IG investigation is a 

preponderance of the evidence 

-- The Investigating Officer (IO) must be satisfied that the greater weight of the 

credible evidence supports the findings and conclusions (para. 2.48.1.1.) 

-- This means that it is more likely than not that the events occurred (para. 

2.48.1.4.) 

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, or withholds (or threatens to withhold) a 

favorable personnel action, to retaliate against a member of the armed forces who 

made or prepared to make a protected communication (para. 3.16.2) 

-- RMOs include three categories: (1) deciding officials; (2) those who 

influenced/recommended the action; (3) reviewers/indorsers (e.g., additional 

EPR) (Atch 1) 

-- Personnel actions include actions that affect or have the potential to affect a 

military member’s current position or career (e.g., a LOR, referral EPR) (Atch 

1) 

-- It is a protected communication when a member who reasonably believes 

he/she has evidence of a violation of law or regulation (regardless of whether 

he/she is the victim), discloses this to an authorized recipient in the form of a 

lawful communication (Atch 1) 

--- Unlawful communications include: (1) those that convey an admission of 

misconduct, violation of the UCMJ, or violation of other applicable 

criminal statutes and (2) communications that, in themselves, constitute 

misconduct, a violation of the UCMJ or violation of other applicable 

criminal statutes (e.g., threats, false statements etc.) (Atch 1) 

--- Besides the IG, MEO and family advocacy, authorized recipients of 

protected communications include, but are not limited to, First Sergeants, 

Command Chief Master Sergeants, Flight Commanders, Squadron 

Commanders and higher as well as others appointed IAW AFI 51-604 and 

AFI 38-101 (paras. 3.16.1.2.1.1; 3.16.1.2.1.2.; 3.16.1.2.1.8.; Atch 1) 
Civil Rights and Protections of Military Personnel - 351 

– Ex., reprisal: Female SSgt files MEO complaint against her male supervisor for 

sexual harassment. Supervisor rates her EPR as a “3.” SSgt’s previous EPRs were 

“5’s.” Supervisor has no documentation to justify downgrade to a “3.” 

– To analyze allegations of reprisal, IGs use a four-part reprisal “acid test:” 

-- Did the military make or prepare to make a communication protected by 

statute? 

-- Was an unfavorable personnel action taken or threatened or was a favorable 

action withheld or threatened to be withheld following the protected 

communication? 

-- Did the RMOs know about the protected communication? 

-- Does the evidence establish that the personnel action would have been taken, 

withheld or threatened if the protected communication had not been made? To 

answer this question, IGs will consider five factors: 

--- Reasons stated by the RMO for the action 

--- Reasonableness given complainant’s performance/conduct 

--- Consistency with the RMO’s past practice 

--- Motive of the RMO for the action 

--- Procedural correctness of the action. 

– Reprisal is a subset of abuse of authority. As such, even if the facts do not 

constitute reprisal, they may rise to the level of abuse of authority. (Para 3.17.1.3.) 

-- Abuse of authority means an arbitrary or capricious exercise of power that 

adversely affects the rights of any person or results in personal gain or 

advantage to the abuser 

-- Black’s Law Dictionary, 5.ed. defines arbitrary and capricious as willful and 

unreasonable action without consideration of or in disregard of facts or 

determining principle 

– All reprisal investigations undergo IG and legal reviews at the MAJCOM, SAF, 

and DoD levels 

– IG, DoD renders final review/approval 
352 – The Military Commander and the Law 

RESTRICTED ACCESS COMPLAINTS

– 10 U.S.C. § 1034 (and AFI 90-301) also states that a military member may not be 

restricted or prohibited from making a protected communication to authorized 

recipients 

– The definitions of RMO, protected communication, unlawful communication, 

authorized recipients above apply to restricted access (para. 3.33) 

– Restriction can result from either private or public statements that may reasonably 

discourage Air Force members from going to MEO, IG, etc. For example 

-- During a commander’s (CC) call, a squadron CC tells his unit that all problems 

will always go through him first. 

-- Squadron CC gives a subordinate a letter of reprimand (LOR) for filing a 

complaint against supervisor with civilian personnel office. LOR states, “In the 

future, you will utilize the chain of command. Any further misconduct of this 

nature will result in more severe action.” 

– Such an unlawful restriction 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 

– There is no “acid test” for restricted access. However, proper analysis of these 

complaints requires an in-depth review of both of the following issues: 

-- RMO intent: what was the intent of the RMO who allegedly restricted the 

member? 

-- Reasonable complainant’s belief (objective standard): would a reasonable 

person, under similar circumstances, believe he/she was actually restricted from 

making a protected communication based on the RMO’s actions? 

– All restricted access investigations undergo IG and legal reviews at the MAJCOM, 

SAF, and DoD levels

IMPROPER MENTAL HEALTH EVALUATION REFERRAL COMPLAINTS

– Commanders and other supervisory personnel may encourage an individual to seek 

a MHE on his/her own, but they may not coerce the member to do so (AFI 44-109, 

para. 4.1) 

-- Strong “encouragement” is not appropriate
Civil Rights and Protections of Military Personnel - 353 

-- Improper MHE: Amn Jones has been acting strangely. He recently told his CC 

that he was “losing it,” and going to “go postal on someone.” CC meets with 

Amn Jones at 1600 on a Friday before a three-day weekend. He tells Amn 

Jones that he’s not getting released for the weekend until MH clears him. Amn 

Jones, feeling he has no choice in the matter, “volunteers” to go to MH, 

escorted by his two supervisors. 

– Only a commander can “direct” a member to undergo a mental health evaluation 

(MHE). (AFI 44-109, para. 4.2) 

-- In all MHE referral cases, the commander is required to notify the member in 

writing, of his/her rights (para. 3.62.2) 

-- DoDI 6490.4, para. 6.1.1.4.1. outlines the minimum requirements for MHE 

rights notification. It includes the right to consult with counsel and the IG. 

-- The timing of the notice will depend on whether the case was emergent or not. 

– “Safety checks” are not authorized! A “safety check” occurs when a commander 

sends a subordinate to mental health and receives feedback, without the required 

paperwork. 

– If the commander has a legitimate concern about the need for a non-emergency or 

emergency MHE, the commander must get involved by: 

-- Gaining firsthand knowledge of the member’s condition 

-- Personally seeking the guidance of a MH care provider to determine whether a 

MHE is appropriate 

– Unless the complainant alleges the IMHE referral was done in reprisal, an IMHE 

referral case will ordinarily not involve an in-depth review of the commander’s 

intent or motives. Good intentions do not negate technical violations of procedural 

requirements; however, they may mitigate any command action that is eventually 

taken as a result of the violation. 

REPORTING REQUIREMENTS

– All reprisal, restricted access and IMHE referral complaints have unique reporting 

requirements. (See paras. 3.18.; 3.29.; 3.35). 

– All complaints, regardless of the nature of the allegation, alleging O-6 misconduct 

(even if handled by a CDI) must be reported to SAF/IGQ (para. 3.8.1) 

– Only SAF/IGS handles complaints against O-7 selects (and above) and civilian 

equivalents. (Para. 3.2.1.). If there is an allegation against an O-7 select or above, 
354 – The Military Commander and the Law 

do not investigate--immediately report allegations to SAF/IGS IAW Chapter 3, 

Section 3A. 

“CONFIDENTIALITY”

– Communications made to the IG are not privileged or confidential (para. 2.3.) 

– However, disclosure of these communications (and the identity of the 

communicant) will be strictly limited to an official need-to-know (para. 2.3.) 

BOTTOM LINE

– The potential for an IG complaint should not ever dissuade a commanders from 

taking timely and appropriate corrective or preventive actions for legitimate reasons 

– Commanders should coordinate with their staff judge advocates for effective legal 

guidance on these issues (para. 3.16.2.3.) 

REFERENCES: 

10 U.S.C. § 1034, (Military Members) Whistleblower Protection Against Reprisal 

5 U.S.C. § 2302, (DAF Civilian Employees) 

10 U.S.C. §1587, (NAF Civilian Employees) 

10 U.S.C. § 2409, (Defense Contract Employees) 

DoDD 6490.1, Mental Health Evaluations of Members of the Armed Forces (1 October 

1997) 

DoDI 6490.4, Requirements for Mental Health Evaluations of Members of the Armed 

Forces (28 August 1997) 

DoDD 7050.6, Military Whistleblower Protection (23 June 2000) 

IGDG 7050.6, Guide to Investigating Reprisal and Improper Referrals for Mental 

Health Evaluations (6 February 1996) 

AFI 90-301, Inspector General Complaints (8 February 2005) 

AFI 44-109, Mental Health and Confidentiality in Military Law (1 March 2000) 

AFPD 90-3, Inspector General-Complaints Program (1 November 1999) 

SAF/IGQ Website: https:// www.ig.hq.af.mil/igq/ 

SAF/IGQ Investigating Officer’s Guide (June 2005) 

SAF/IGQ Commander-Directed Investigation Guide (1 April 2001) 
Civil Rights and Protections of Military Personnel - 355 

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 Department of Defense’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 

AFPAM 36-2705, Discrimination and Sexual Harassment, and AFI 36-2706, 

Military Equal Opportunity and Treatment Program

− 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 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 
356 – The Military Commander and the Law 

-- 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 

− 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 for military members 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 sexual harassment 

and hostile environment sexual harassment 

− Quid pro quo (meaning "this for that") 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 
Civil Rights and Protections of Military Personnel - 357 

− Hostile environment 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; 

or 

--- Using sexually crude, profane, or offensive language 

--- A single act, if severe enough, may support a cause of action for hostile 

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 

environment discrimination 

---- That does not mean that commanders are in any way restricted from 

taking disciplinary action based upon a single incident 
358 – The Military Commander and the Law 

---- 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 

so foggy, 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 sex 

--- All complaints, regardless of whether they appear to meet the legal test of 

hostile environment sexual harassment, should be quickly investigated and 

appropriate action taken to stop offensive conduct 

--- Hostile 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 (i.e., 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 (i.e., 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 or 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 

− 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 
Civil Rights and Protections of Military Personnel - 359 

-- Act quickly to investigate all complaints of sexual harassment in a fair and 

impartial manner 

-- Seek advice from the Military Equal Employment (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 EOT process for military 

complainant/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 EOT/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 not later 

than 14 days after it was commenced 

− The commander shall also 

-- Within 20 days after the investigation began, submit a final report on the results 

of the investigation, including any action taken as a result of the investigation, 

to the GCMCA; or 

-- 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 
360 – The Military Commander and the Law 

COMPLAINT PROCESSING--MILITARY COMPLAINANT

− The MEO Office is the OPR for the Air Force Equal Opportunity and Treatment 

(EOT) 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 

EOT officer and the alleged occurrence of harassment will be called an EOT 

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 EOT 

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 EOT 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 EOT incident is substantiated, a legal review is required before the report 

is forwarded to the concerned commander for appropriate action 

-- 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 
Civil Rights and Protections of Military Personnel - 361 

--- The appropriate legal office will conduct a legal review if the matter is 

appealed to the next level of command 

--- SAF/MRB is the final review and appeal level 

− MEO will not investigate a complaint that involves criminal conduct or 

homosexual conduct 

-- Criminal conduct will be handled by the base law enforcement community 

-- Homosexual conduct must be handled by the commander consistent with the 

guidance for enforcing the military’s homosexual conduct policy 

-- Complaints against senior officials, colonels and colonel selects are 

investigated by the 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 Equal Employment Opportunity 

(EEO) Office regardless of the status of the alleged offender 

COMPLAINT PROCESSING—CIVILIAN EMPLOYEE COMPLAINANT

− The equal employment opportunity (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 chief EEO counselor (CCD) will, among other things, 

advise the complainant of further rights 

-- During this time, the complaint is evaluated by civilian personnel and the SJA’s 

office for soundness and possible settlement 
362 – The Military Commander and the Law 

-- The CCD requests a complaint investigator from the Office of Complaint 

Investigations (OCI) within 30 days of the date the formal complaint was filed 

-- OCI will investigate the complaint and send a copy of the report of 

investigation and complaint file to the CCD, Air Force Civilian Appellate 

Review Office (AFCARO), and the complainant or complainant’s designated 

representative 

-- The complainant must then elect whether an 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 

− After the formal complaint process, it is possible for the complainant to make 

various appeals and eventually file suit in federal court; consult your SJA’s office 

and see AFI 36-1201, Discrimination Complaint, for further information 

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, etc.) rather than alleging sexual 

harassment, and may deal with the misconduct pursuant to AFI 36-704 in the 

following manner 

-- Reprimand to removal depending on the conduct and circumstances 

--- Any disciplinary action which includes punishment greater than suspension 

for more than fourteen 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, etc.), took place and that the punishment imposed serves to 

promote the efficiency of the service 
Civil Rights and Protections of Military Personnel - 363 

REFERENCES: 

10 U.S.C. § 1561 

DoDD 1350.2, Department of Defense Military Equal Opportunity (MEO) Program

(18 August 1995) (C1, 7 May 1997) 

AFI 36-701, Labor Management Relations (27 July 1994) 

AFI 36-704, Discipline and Adverse Actions (22 July 1994) 

AFI 36-1201, Discrimination Complaints (25 July 1994) 

AFI 36-2706, Military Equal Opportunity and Treatment Program (29 July 2004) 

AFI 90-301, Inspector General Complaints (8 February 2005) 

AFPAM 36-2705, Discrimination and Sexual Harassment (28 February 1995) (C1, 7 

May 1997) 
364 – 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 Article 92, UCMJ, 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 

-- 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 the prior approval of the major command 

commander or equivalent authority (approval authority may be delegated to the 

installation commander) 

-- 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 the member's personal 

views concerning public issues, if those views do not attempt to promote a 

partisan political cause 

-- Display a political sticker on the member's private vehicle or wear a political 

button when not in uniform and not on duty 

-- 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 letterwriting campaign on behalf of a partisan political cause or candidate 
Civil Rights and Protections of Military Personnel - 365 

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, paragraphs 4.2and 4.3 

-- 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 for 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 or candidate 

-- Participate in any radio, television, or other program or group discussion as an 

advocate of a partisan political party or candidate 

-- 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 or on election day 

-- Solicit or otherwise engage in fund-raising activities in federal offices or 

facilities, including military installations, for a partisan political cause or 

candidate 

-- March or ride in a partisan political parade 

-- 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 
366 – The Military Commander and the Law 

-- 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 a partisan political candidate 

-- 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 Article 88, 

UCMJ (for officers) and AFI 51-902 (for officers and enlisted members) 

-- Display a large political sign, banner, or poster on the top or side of a member's 

private vehicle (as distinguished from a political sticker) 

-- Sell tickets for, or otherwise actively promote, political dinners and other such 

fund-raising events 

CAMPAIGNING AND HOLDING PUBLIC OFFICE

− Air Force members may not campaign as a candidate for nomination or as a 

nominee for civil office except 

-- With proper approval, a member may be permitted to file evidence of 

nomination or candidacy for nomination as required by law 

-- Such a request will normally not be approved unless the member is likely to 

separate from active duty/active duty training at least 30 days before the 

scheduled election 

− Air Force members may not become a candidate for any civil office while serving 

an initial tour of extended active duty or a tour of extended active duty that the 

member agreed to perform as a condition to receiving schooling or training wholly 

or partly at U.S. expense 

− 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, appointed, or senior executive service offices 
Civil Rights and Protections of Military Personnel - 367 

-- 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 

− 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 

− Air Force members may serve as a regular or reserve civilian law enforcement 

officer or member of a civilian fire or rescue squad when such service 

-- Is approved by the member’s commander 

-- Is in the member’s personal capacity 

-- Does not involve the exercise of military authority; and 

-- Does not interfere with performance of military duties 

REFERENCES: 

DoDD 1344.10, Political Activities by Members of the Armed Forces on Active Duty (2 

August 2004) 

DoD 5500.7-R, Joint Ethics Regulation (30 August 1993) (C6, 23 March 2006) 

AFI 51-902, Political Activities by Members of the U.S. Air Force (1 January 1996) 

AFI 51-903, Dissident and Protest Activities (1 February 1998) 
368 – The Military Commander and the Law 

MEMBERSHIP AND PARTICIPATION IN HATE GROUPS

− Air Force members must reject active participation in organizations that espouse 

supremacist 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 the effort to deprive individuals of their civil rights 

-- Active participation in these organizations, such as publicly demonstrating or 

rallying, fund raising, recruiting and training members, organizing or leading 

such organizations, or otherwise engaging in activities or acting in the 

furtherance of the objectives of such organizations that the commander finds to 

be detrimental to good order, discipline, or mission accomplishment, is 

prohibited 

--- Members who violate this prohibition are subject to disciplinary action 

under Article 92 of the UCMJ 

--- Commanders are authorized the full range of administrative and disciplinary 

actions, including separation, against those who actively participate in these 

organizations 

-- Mere membership in these organizations is not prohibited, but must be 

considered in evaluating and assigning military members 

− The Military Equal Opportunity Office (MEO) (formerly Social Actions) 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 

− An EOT Incident (EOTI) 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, Military Equal Opportunity Program (29 July 2004) 

AFI 51-903, Dissident and Protest Activities (1 February 1998) 
Civil Rights and Protections of Military Personnel - 369 

SERVICEMEMBERS CIVIL RELIEF ACT

The Servicemembers Civil Relief Act (SCRA) provides a wide range of protection for 

individuals in the military service. The SCRA is intended to postpone or suspend 

certain civil obligations to enable service members to devote full attention to duty. The 

SCRA was enacted in 2003 and completely replaced the Soldiers’ and Sailors’ Civil 

Relief Act. 

− The Act applies to active duty members in civil matters, not criminal matters 

-- Reservists and the members of the National Guard are protected by the SCRA 

while on active duty 

-- The protections generally begin on the date of entering active duty and 

generally terminate on the date of the person’s release from active duty. 

However, exceptions may apply, depending on which provision of the Act is 

sought. Members who face problems in the areas listed below should be 

referred to the base legal office. 

− The following paragraphs provide a synopsis of the most common and relevant 

provisions in the SCRA 

-- Rent: The SCRA prohibits eviction, without a court order, of a service member 

and dependents from rented housing where the rent does not exceed $2,400.00 

per month. This amount is adjusted upward yearly using a cost-of-living 

formula found in the Act. 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, the court may delay eviction proceedings for up to three months. 

-- Lease Termination: A military member may unilaterally cancel a lease of 

premises if they receive orders (PCS or deployment for more than 90 days). In 

addition, 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. 

-- Installment Contracts: A service member who enters into an installment 

contract before entering active duty is protected if his or her ability to make 

payments is materially affected by military service. Here, the courts will 

compare the service member's pre-service income and military income to 

determine his or her financial condition. The creditor cannot exercise rights of 

rescission, termination, or repossession without a court order. 
370 – The Military Commander and the Law 

-- Maximum Rates of Interest: The interest rate on a member’s pre-service

obligation must be capped at 6% unless the creditor shows that the ability of the 

service member to pay interest above 6% is not materially affected by reason of 

their military service. This relief applies during the entire period of active duty 

service and must be applied retroactively if the member does not request the 

cap 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. 

-- 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 by 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/she was prejudiced, and 

shows he/she had a legal defense. 

-- 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 two years. The insured or beneficiary must apply to the 

Veterans' Administration for protection. In addition, professional liability 

(malpractice) insurance must “freeze” when the member enters military service 

and then resume (exactly where it left off) after release from 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 

or she be subject to pay California state income tax on his or her 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”). 

-- 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 

(i.e., denial of credit, refusal of insurance, etc.) against the service member. 

REFERENCE: 

50 App. U.S.C. §§ 501-596 (2003), Servicemembers Civil Relief Act 
Civil Rights and Protections of Military Personnel - 371 

UNIFORMED SERVICES EMPLOYMENT 

AND REEMPLOYMENT RIGHTS ACT

The Uniformed Services Employment and Reemployment Rights Act (USERRA) 

encourages noncareer 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 may not deny a person initial employment, promotion, or any benefit 

of employment because the person performed or is obliged to perform service in an 

uniformed service 

-- Uniformed services means the Air Force, Army, Navy, Coast Guard, Marine 

Corps, and the commissioned corps of the Public Health Service 

-- 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. 

-- The Act applies to any Federal executive agency, state and local governments, 

and private employers, regardless of size 

ELIGIBILITY CRITERIA

− To have reemployment rights following service in an 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 five 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 five-year entitlement. 
372 – The Military Commander and the Law 

--- Some categories of military service do not count toward the five-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 

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 

--- There must be no waiting period and no exclusions of pre-existing 

conditions, other than those conditions which the Department of Veterans 

Affairs has determined to be service-connected 

--- USERRA gives a person departing a civilian job for service in a uniformed 

service the right to elect continued employer-related health insurance 

coverage for him or herself, and his or her, family during the period of 

service 

-- Other nonseniority 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 
Civil Rights and Protections of Military Personnel - 373 

--- 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 

---- Disability need not be permanent in order to confer rights (e.g., a broken 

leg) 

---- 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 one 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 

--- 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 
374 – The Military Commander and the Law 

REFERENCES: 

38 U.S.C. §§ 4301-4333 

32 C.F.R. Part 104 

20 C.F.R. Part 1002 

DoDI 1205.12, Civilian Employment and Reemployment Rights of Applicants For, and 

Service Members and Former Service Members of the Uniformed Services (4 

April 1996) (C1, 16 April 1997) 
Civil Rights and Protections of Military Personnel - 375 

UNIFORMED SERVICES FORMER SPOUSES' PROTECTION ACT

In 1982, Congress passed the Uniformed Services Former Spouses' Protection Act 

(USFSPA) to provide certain benefits to the former spouses of military members 

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 

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 
376 – The Military Commander and the Law 

entitled to disability pay, the product of the member's monthly retired pay 

multiplied by the percentage of his disability 

− Compensation not included in DRP, including disability compensation, is not 

subject to division by state courts 

− Amounts paid directly to a former spouse cannot exceed 50 percent of member's 

DRP 

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 

---- The order expresses payment in dollars or a percentage of the member's 

DRP 

---- Direct payments terminate upon the earliest of three events 
Civil Rights and Protections of Military Personnel - 377 

-- Terms of court order satisfied 

-- Death of the retired member 

-- Death of the former spouse 

− Procedure for request for direct pay. The former spouse must send the designated 

agent of the member's Uniformed Service (for AF members, DFAS-CL) the 

following items 

-- A signed DD Form 2293, Request 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 within 90 days 

immediately preceding service on DFAS. 

− 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. 

ELIGIBILITY FOR MILITARY BENEFITS 

− An unremarried former spouse receives medical, commissary, base exchange, and 

theater privileges under Morale, Welfare, and Recreation (MWR) if 

-- He or she was married to the military member for at least 20 years at the time of 

the divorce, dissolution or annulment 
378 – The Military Commander and the Law 

-- 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 member during at least 20 years of member's 

retirement-creditable service 

− An unremarried former spouse may be eligible for limited medical benefits (but not 

BX or commissary privileges) if 

-- 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 member during at least 15 years of member's 

retirement-creditable service 

− 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. 

REFERENCES: 

10 U.S.C. § 1072 

10 U.S.C. § 1076 

10 U.S.C. § 1086a 

10 U.S.C. § 1408 

32 C.F.R. Part 63.6 

AFI 36-3026(I), Identification Cards for Members of the Uniformed Services, their 

Family Members and Other Eligible Personnel (20 December 2002) 
Civil Rights and Protections of Military Personnel - 379 

RIGHT TO FINANCIAL PRIVACY ACT

The Right to Financial Privacy Act (RFPA) provides privacy protection for customers’ 

financial records held by financial institutions. It strikes a balance between an 

individual’s privacy interest in these records and the government’s interest in 

investigating criminal misconduct. The RFPA specifically describes the means by 

which government authorities can obtain an individual’s financial records from a 

financial institution, provides notice and challenge procedures for the customer, and 

prohibits unfettered access by a government agent. The Act does not apply to 

obtaining access to financial records maintained by military banking contractors 

located outside of the United States, the District of Columbia, Guam, American Samoa, 

or the Virgin Islands. Failure to follow the requirements of the statute can result in 

litigation in U.S. District Court, delays in courts-martial or administrative actions, and 

civil penalties. 

MEANS FOR OBTAINING RECORDS FOR A LAW ENFORCEMENT INQUIRY

− A DoD law enforcement office may request basic identifying information relevant 

to a legitimate law enforcement inquiry without consent or notice. Such 

information includes 

-- Name 

-- Address 

-- Account number 

− Consent. Preferred method is with the customer’s consent. DoD and Air Force 

policy is to attempt to obtain consent, if feasible, before using other methods to 

obtain financial records. 

-- Consent must be in writing in the prescribed form 

-- The consent form must include a number of disclosures, to include the records 

being disclosed, the purpose for disclosure, the agency to which they may be 

disclosed, and the consent ends after 3 months unless terminated earlier by the 

person. A “Statement of Customer Rights” is used for this purpose. 

− Search warrant. Issued by either a federal magistrate or a state judge within the 

applicable federal district 

-- A military search authorization is only valid for records maintained at on-base 

banking institutions at overseas installations. Records must be maintained at 

the on-base location, not merely accessible from the on-base location. 
380 – The Military Commander and the Law 

-- AFOSI should coordinate with the SJA before obtaining warrants or search 

authorizations 

-- Within 90 days of executing a search warrant, the customer must be notified 

that the records were seized 

− Judicial subpoena. Once the convening authority refers a case to trial by courtmartial, the trial counsel has authority to issue subpoenas under Article 46, UCMJ. 

See also R.C.M. 703(e). Accordingly, trial counsel may subpoena the financial 

records of an accused or of witnesses. Subpoenas for an accused’s records are 

exempt from the requirements of the RFPA. For witnesses, trial counsel must 

provide notification and an opportunity to challenge the subpoena. 

− Administrative subpoena. DoD/IG is authorized in circumstances to issue 

administrative subpoenas 

− Formal written request. RFPA allows this procedure only if no administrative 

subpoena authority “reasonably appears to be available” to the government 

-- Investigators must follow RFPA, DoD, and AFOSI requirements exactly 

-- Notify the customer that if he wishes to prevent disclosure, he must complete a 

fill-in-the blank form and sworn statement attached to the notice and file the 

forms with the court within 10 days IAW RFPA. DoD Instruction 5400.15 

gives the customer 14 days from service and 18 days from the initial mailing. 

− The RFPA applies only in the states and territories of the U.S. (i.e., Puerto Rico, 

Guam, American Samoa, and the Virgin Islands), and the District of Columbia 

-- At other installations, DoD Instruction 5400.15 allows use of a military search 

authorization to obtain records maintained at on-base military banking facilities 

and credit unions 

-- Follow host nation procedures for off-base local national financial institutions 

REFERENCES: 

12 U.S.C. § 3401, et seq. 

UCMJ art 46 

Rule for Courts-Martial 703(e) 

DoD Instruction 5400.15, Guidance On Obtaining Information From Financial 

Institutions (2 December 2004) 

AFI 71-101 (Volume 1), Criminal Investigations, (1 December 1999)
Civil Law Issues for the Commander - 381 

CHAPTER ELEVEN: 

CIVILLAW ISSUES FOR THE COMMANDER 

Emergency Response

Media Relations During Aircraft Accidents........................................................382 

National Defense Areas.......................................................................................385 

Posse Comitatus...................................................................................................389 

Boards and Investigations

Air Force Safety and Accident Investigations.....................................................392 

Administrative Inquiries and Investigations........................................................398 

Allegations Against Senior Officials and Colonels (Or Equivalents) ................402 

Flying Evaluation Boards....................................................................................404 

Base Commercial Issues

Commercial Activities.........................................................................................407 

MWR and Nonappropriated Fund Instrumentalities ...........................................411 

Off-Limits Establishments...................................................................................412 

Unofficial Activities / Squadron Snack Bars.......................................................414 

Acceptance of Volunteer Services.......................................................................415 
382 – The Military Commander and the Law 

MEDIA RELATIONS DURING AIRCRAFT ACCIDENTS

Initial News Release. Give all available, releasable, commander-approved information 

to the news media within an hour after an accident is reported. The initial release 

should include information as indicated in AFI 35-101, Public Affairs Policies and 

Procedures, para. 7.12. 

ACCIDENTS ON MILITARY INSTALLATIONS 

− If no classified material is exposed, the commander will permit news media 

photography 

− If classified information or materials are exposed and cannot be covered or 

removed, media personnel or visitors will not be allowed to photograph or 

videotape the site 

-- Notify media or visitors of any restrictions on what can be filmed 

-- Bar or restrict media or visitors from sensitive sites or activities 

-- Immediately notify security forces of suspected filming of classified 

information or activities by media personnel or visitors. Security forces will 

confiscate film and videotape and provide a receipt for any film or videotape 

seized. Do not detain the media or visitors. 

-- Review seized film or videotape with security forces to see if classified 

information is contained on the film or videotape, then return all portions that 

do not contain classified information 

− Immediately notify the local Air Force Office of Special Investigations (AFOSI) if 

-- The film contains classified information 

-- It appears there was intent to deliberately film or videotape classified 

information for purposes of profit, espionage or to have any other significant 

adverse impact on national security 

ACCIDENTS AT OFF-BASE LOCATIONS 

− If no classified information is exposed, the senior Air Force representative will 

permit news media photography 

− If undetermined whether classified information is exposed, explain that fact to any 

media photographer at the scene and advise them that no photography is 
Civil Law Issues for the Commander - 383 

authorized. Warn them that taking pictures without permission may violate federal 

law. 

− If classified information is exposed and cannot be covered or removed

-- Explain that federal law prohibits photography when official permission is 

expressly withheld and ask the news media to cooperate 

-- Do not use force if news media representatives refuse to cooperate unless the 

area has been declared a National Defense Area. If photographs are taken after 

a warning is issued, Air Force officials must ask civilian law enforcement 

authorities to stop further photography of the exposed classified information 

and to collect all photographs. 

-- If no civilian law enforcement authorities are on the scene and news media 

representatives take unauthorized pictures, do not seize the videotapes or film 

or detain the photographer 

-- Immediately contact the managing editor or news director of the medium 

employing the photographer 

-- Explain the situation and request the return of videotape or film having 

suspected classified information 

-- Explain failure to return the material to military authorities violates federal law, 

i.e., 18 U.S.C. §§ 793(e), 795, 797 

RELEASING NAMES OF ACCIDENT VICTIMS 

− Deceased: Responsible installation public affairs (PA) office releases the names of 

people killed in Air Force accidents after the next-of-kin have been notified. 

Installation commander may release the names before notifying next-of-kin when a 

military accident in a civilian community causes significant property damage or 

loss of life, only to reassure the community the Air Force members were well 

qualified or experienced. 

− Survivors: Generally, release the names of all survivors immediately. Report 

survivors who are believed to be in immediate danger of dying as survived but in 

critical condition. If in the CC’s opinion releasing the survivors’ names will reveal 

the identity of deceased personnel prior to next of kin notification, withhold the 

names. 

− Missing or Presumed Lost: PA office at departure base will release the names of 

passengers and crew to news media individually, as the next of kin are notified; this 

should not delay the announcement that the aircraft is missing 
384 – The Military Commander and the Law 

− When key U.S. or foreign government officials are killed, injured, or missing while 

on an Air Force installation or in an Air Force vehicle or aircraft, notify OASD/PA 

press desk for public announcement by the White House Press Secretary 

ACCIDENT INVESTIGATIONS 

− Commanders and PA representatives must not speculate about the causes of the 

accident, even if the cause seems obvious. Explain that only a safety investigation 

board (SIB) or accident investigation board (AIB) is qualified to determine the 

causes. 

− Do not lead the reporter to believe that all SIB findings will be made available. 

Explain the purpose of the safety board is to prevent accidents, not to fix blame. 

The safety board's conclusions are privileged, as are statements given to the board 

under the promise of confidentiality, and must be protected. 

− If a reporter requests the AIB or SIB Report, direct him or her to the convening 

authority of the AIB. For more detailed information on accident report releases, 

refer to AFI 51-503, Aerospace Accident Investigations. 

REFERENCES: 

AFI 34-1101, Assistance to Survivors of Persons Killed in Air Force Aviation Mishaps 

and Other Incidents (1 October 2001) 

AFI 35-101, Public Affairs Policies and Procedures (29 November 2005) 

AFI 51-503, Aerospace Accident Investigations (16 July 2004) 

AFI 91-204, Safety Investigations and Reports (14 February 2006) 
Civil Law Issues for the Commander - 385 

NATIONAL DEFENSE AREAS

Air Force commanders are charged with responsibility for protecting DoD resources 

under their control. That 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. 

− Definition: An NDA is an area established on nonDoD (usually nonfederal) lands 

located within the United States, its territories or possessions, for the purpose of 

safeguarding classified defense information or protecting DoD equipment and/or 

material. Establishment of an NDA temporarily places the land concerned under 

the effective control of the DoD. An NDA can also be established on federal lands 

under the control of other federal agencies. 

− Commanders of MAJCOMs, numbered air forces, wings, groups, installations, and 

designated "on-scene 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 such as aircraft 

crashes; emergency landings by aircraft carrying nuclear weapons; emergency 

diversions of military aircraft to civilian airports; and accidents involving or 

temporary immobilization of nuclear weapons ground convoys. Planned rest 

stops are not emergencies. 

-- The size, shape and location of the NDA must be reasonably related to what is 

needed to protect the resource concerned. The 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. 
386 – The Military Commander and the Law 

-- 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 when 

deciding to establish, disestablish, or modify an NDA 

− 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 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 staff judge 

advocate 

-- 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. 

− Media Relations 

-- On-scene commanders should be sensitive to interests of the media, and should 

limit photography only as much as necessary to protect classified information. 

If the off-base site is designated as an NDA, support news media 

representatives as on a military installation. 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. 

-- 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 
Civil Law Issues for the Commander - 387 

-- 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, military should turn the matter over to civilian authorities. 

-- 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/resources, 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 

− The attached form letter may be used to communicate establishment of an NDA to 

local governments, citizens, media and others 

REFERENCES: 

18 U.S.C § 1385 

50 U.S.C. § 797 

DoDI 5200.08, Security of DoD Installations and Resources (10 December 2005) 

DoD 5200.8-R, Physical Security Program (13 May 1991) 

AFI 10-2501, Full Spectrum Threat Response (FSTR) Planning and Operations (3 

August 2005) 

AFI 31-101, The Air Force Installation Security Program (1 March 2003) 

AFI 31-201, Security Police Standards and Procedures (4 December 2001) 

AFI 35-101, Public Affairs Policies and Procedures, (29 November 2005) 

AFMAN 32-4004, Emergency Response Operations (1 December 1995) 

ATTACHMENT:

Sample letter establishing an NDA
388 – The Military Commander and the Law 

MEMORANDUM FOR WHOM IT MAY CONCERN 

FROM: (Commander or On-Scene Commander) 

SUBJECT: Establishment of National Defense Area 

1. In accordance with Section 797 of Title 50 of the United States Code and AFI 31-

101, I (as the on-scene commander) (as the commander responsible for the resources), 

(am)(have been directed by, name and rank of the commander responsible for the 

resources to) establishing a National Defense Area as described in paragraph 4 of this 

letter. This action is being taken for the purpose of protecting and securing priority 

military resources. 

2. Entry into this National Defense Area is subject to my approval. The protection of 

priority military resources is the primary consideration. Also, I wish to ensure the 

protection of human life and civilian property in the National Defense Area and ensure 

the integrity of the site pending investigation and recovery operations. Therefore, all 

requests to enter the National Defense Area must be addressed to my attention. 

3. Entering a National Defense Area without authority is a federal offense; and upon 

conviction, a violator shall be liable for a fine, not to exceed $5,000 or imprisonment 

for not more than one year, or both. 

4. The National Defense Area is described as follows: 

[Describe NDA by coordinates, landmarks, boundary markings, or other certain fixed 

points.] 

SIGNATURE BLOCK FOR COMMANDER OR 

ON-SCENE COMMANDER 

Note: Use the appropriate wording. If the on-scene commander is also the commander 

responsible for the resource involved, he/she may authorize the establishment of the 

National Defense Area. In all other cases, the on-scene commander may only establish 

a National Defense Area after being directed to do so by the commander responsible 

for the resource involved. 
Civil Law Issues for the Commander - 389 

POSSE COMITATUS

The Posse Comitatus Act states: 

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 not more than $10,000 or imprisoned not more than 

two years or both. 

PUNISHMENT FOR VIOLATIONS

− Possible sanctions for violating the Posse Comitatus Act 

-- Fine of $10,000 and/or two years imprisonment 

-- Suppression of evidence illegally obtained 

--- The 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 policy 

-- The Act applies to the Reserves and to the National Guard while in Title 10 

(federal) service, but not to the Guard while in Title 32 (state) 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 
390 – 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 Posse Comitatus (all sections below refer to Title 10, United States Code) 

-- § 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." It 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. 

-- § 372 allows the military to loan any equipment, base facility, or research 

facility to local law enforcement, although you may charge them for its use 

(See § 377). Loan of "arms, ammunition, tactical-automotive equipment, 

vessels and aircraft" require proper coordination. 

-- § 373 makes military personnel available to train Federal, State, and local 

CLEA officials on operation and maintenance of equipment properly loaned 

under § 372, and to provide expert advice to such officials 

-- § 374 allows SecDef to loan military personnel to operate and maintain loaned 

equipment under § 372, and under limited circumstances 

− The military is still prohibited from enforcing civilian laws. We may not 

participate in a search, seizure, arrest, or similar activity in support of local law 

enforcement (§ 375).

-- The military can execute the laws on the installation for a military purpose 

-- Even on the installation, we "detain" civilians before turning them over to civil 

authorities. We do not arrest or apprehend civilians. This is a critical

distinction. 

− The military may still 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 we are not engaging in a subterfuge to disguise a Posse 

Comitatus Act violation. 
Civil Law Issues for the Commander - 391 

− Posse Comitatus is still a Modern Problem: Despite the fact that this area goes back 

to the Civil War, it is still an issue that surfaces fairly frequently. For example, in 

the immediate aftermath of the Oklahoma City bombing, civilian law enforcement 

agencies sought military help and the Posse Comitatus Act was looked to for 

guidance. 

REFERENCES: 

AFI 10-801, Assistance to Civilian Law Enforcement Agencies (15 April 1994) 

AFI 10-802, Military Support to Civil Authorities (19 April 2002) 

AFMAN 32-4004, Emergency Response Operations (1 December 1995) 
392 – 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 

Accident Investigations, are the two most important instructions dealing with 

investigating accidents involving aircraft, missiles, or nuclear resources. AFI 51-

507, Ground Accident Investigations, deals with investigating accidents occurring 

on land and on water, not involving aircraft, missiles or other aerospace assets. 

− The safety investigation (AFI 91-204) determines cause to prevent future mishaps 

− The deliberations, opinions, and conclusions of investigators and any evidence 

from witnesses and contractors given under confidentiality are in Part II of the 

Safety Mishap Report. It is privileged and nonreleasable outside safety channels. 

− The aircraft accident investigation (AFI 51-503) and ground accident investigation 

(AFI 51-507) provide a report fully releasable to the public and preserve evidence 

for claims, litigation, disciplinary and administrative actions, and all other purposes 

− 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: AFI 91-204 

− AFI 91-204 investigations 

-- Safety Investigation Board (SIB) is composed of Board of 

Officers/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 

--- SIB may offer promise of confidentiality to witnesses/contractors if 

necessary 

--- Safety report is barred from use by U.S. Attorney even if it favors USAF 

--- In United States v. Weber Aircraft Corp., 465 U.S. 792 (1984), the Supreme 

Court upheld the privileged nature of safety reports (Part II) 
Civil Law Issues for the Commander - 393 

− Potential problem areas with safety investigations 

-- Misunderstanding the purpose and use of information 

-- Interface with accident investigators 

--- Part I of the safety report is releasable to the accident investigators 

--- The safety investigation has priority on wreckage, witnesses, and 

documents 

-- Talking to next-of-kin (NOK) of mishap victims 

--- Very tough job in any event; exercise discretion 

--- 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 Accident Investigation Board (AIB) President or 

Ground Accident Investigation Board (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 Agency (AFSA). The OPR is HQ AFSC/JAR. 

--- For AIB and GAIB reports, direct requests to the MAJCOM responsible for 

initiating the investigation 

-- Creating even the appearance of improper use of AFI 91-204 information for 

disciplinary actions, flying evaluation boards, etc. 

--- Imperative that commanders have “clean hands” 

--- Document where you got the information to take action 

-- Safety Report/Court-Martial 
394 – The Military Commander and the Law 

--- Obtaining a conviction is extremely difficult if a safety investigation 

precedes the court-martial. The defense will request the privileged portion 

of the report and then litigation could develop over its release. 

--- Bottom Line: 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 

AEROSPACE ACCIDENT INVESTIGATIONS: AFI 51-503 

− Accident investigations are required in 

-- All Class A mishaps, as defined by AFI 91-204. Except where the aircraft is 

not destroyed and the mishap results solely in damage to government property 

(IC 2004-1). 

-- Cases with a probability of high public interest 

-- All suspected cases of friendly fire 

− Accident investigations can be convened at the convening authority’s discretion 

when 

-- There is anticipated litigation for or against the Government or a Government 

contractor, or 

-- There is anticipated disciplinary action under the UCMJ against any individual, 

or 

-- There are damages to third parties that likely will exceed $250,000 

− Accident investigation responsibilities 

-- Convening Authority (MAJCOM Commander for Class A accidents) 

--- 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 is released to the public before the 

investigation is complete 
Civil Law Issues for the Commander - 395 

--- Approves the AIB Report and PA Release Plan 

--- High-Interest Mishaps must be coordinated and staffed by convening 

authority’s staff judge advocate through AF/JA for review at least two duty 

days prior to public release and NOK briefing 

-- Installation Commander 

--- Appoints a host base liaison officer to assist the AIB in logistical and 

administrative support, as well as arranging witness interviews 

--- Provides in-house logistical and administrative support for the AIB, except 

billeting (even if the host base is not assigned to the investigating 

MAJCOM) 

--- Removes and stores wreckage from the mishap site, until AFLOA/JACT 

releases it from legal hold 

--- Assists the convening authority in the initial clean up of the mishap site 

GROUND ACCIDENT INVESTIGATIONS: AFI 51-507 

− Ground accident investigations are legally required when a mishap occurs on land 

or on a body of water and results in 

-- A “Class A” mishap as defined by AFI 91-204, paragraph 1.8. Except where 

mishap results solely in damage to government property, in accordance with 

AFI 51-507, paragraph 1.1.1 

− Ground accident investigations are not legally required under circumstances listed 

in AFI 51-507, paragraph 1.3, to include those instances where 

-- Mishaps are investigated by another military service or agency of the federal or 

state government if the investigation includes a publicly releasable report (e.g., 

a police traffic accident report) 

-- Mishaps are not connected to the duties of the involved Air Force personnel 

(e.g. off-duty, outside scope of employment) 

− Ground accident investigations can be convened at the convening authority’s 

discretion, pursuant to AFI 51-507, paragraphs 1.3.7-1.3.9, when 

-- There is anticipated litigation for or against the Government or a Government 

contractor, or 
396 – The Military Commander and the Law 

-- There is anticipated disciplinary action under the UCMJ against any individual, 

or 

-- There is a probability of high public interest 

− AFI 51-507 does not preclude a base legal office or commander from initiating 

other types of investigations, (e.g. potential claims investigation, commanderdirected investigation, report of survey) as appropriate, in cases where a GAIB is 

not mandatory 

− Accident investigation responsibilities 

-- Convening Authority (MAJCOM Commander for Class A accidents) 

--- 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 GAIB 

--- Determines what accident information is released to the public before the 

investigation is complete 

--- Approves the GAIB Report and PA Release Plan 

---- High-Interest Mishaps, as defined by AFI 51-507, paragraph 8.5.1, must 

be coordinated and staffed by convening authority’s staff judge 

advocate through AF/JA for review at least two duty days prior to 

public release and NOK briefing 

---- GAIB reports do not usually contain a Statement of Opinion, unless 

specifically required by convening authority 

----- Statements of Opinions by the GAIB Board President as to the 

cause of accident should only be required in rare circumstances 

----- Unlike AIBs, opinions of GAIB Board Presidents are not 

statutorily protected and may affect the United States in 

litigation 

----- Well-documented, thorough GAIB report should allow facts to 

speak for themselves in most instances 
Civil Law Issues for the Commander - 397 

-- Installation Commander 

--- Appoints a host base liaison officer to assist the GAIB in logistical and 

administrative support, as well as arranging witness interviews 

--- Provides in-house logistical and administrative support for the GAIB, 

except billeting (even if the host base is not assigned to the investigating 

MAJCOM) 

--- Removes and stores wreckage from the mishap site, until AFLOA/JACT 

releases it from legal hold in accordance with AFI 51-507, paragraph 10.4.3 

--- Assists the convening authority in the initial clean up of the mishap site 

REFERENCES: 

AFI 51-503, Aerospace Accident Investigations (16 July 2004) 

AFI 51-507, Ground Accident Investigations (28 October 2004) 

AFI 91-204, Safety Investigations and Reports (12 April 2004) 
398 – The Military Commander and the Law 

ADMINISTRATIVE INQUIRIES AND INVESTIGATIONS

Commanders will find themselves involved in or supervising several different types of 

investigative procedures. 

INHERENT AUTHORITY TO INVESTIGATE

− All commanders possess inherent authority to investigate matters or incidents under 

their jurisdiction 

− Such authority 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 

− Reprisal against an individual for making a complaint is prohibited 

− Many investigations and inquiries are conducted pursuant to a specific regulation. 

Examples include Reports of Survey, Line of Duty, Homosexual Conduct, 

Accident Investigations, etc. 

− When a specific regulation does not apply, the investigation is conducted under the 

commander's inherent authority. AFI 90-301, Inspector General Complaints, 

provides excellent guidance on how to conduct a commander investigation or 

inquiry but should not be cited as the authority for the investigation or inquiry 

INVESTIGATIONS GOVERNED BY AIR FORCE INSTRUCTIONS

− Types of Administrative Inquiries and Investigations 

-- AFI 90-301, Inspector General Complaints, provides authority for 

investigations and inquiries 

--- Resulting from IG complaints 

--- Directed or initiated within IG channels 

--- Conducted by an inspector or inspector general 

-- Those governed by other instructions 

--- AFI 51-503, Aerospace Accident Investigations
Civil Law Issues for the Commander - 399 

--- AFI 91-204, Safety Investigations and Reports

--- AFI 71-101, Vol. 1, Criminal Investigations (investigations conducted by 

Air Force Office of Special Investigations (OSI)) 

--- AFI 31-206, Security Forces Investigation Program

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

Military Justice 

--- AFI 36-2910, Line of Duty (Misconduct) Determination

--- AFI 36-1201, Discrimination Complaints (EEO Complaints by Civilian 

employees)

--- AFI 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) 

Program 

--- Complaints of discrimination or unequal treatment (EOT) by military 

personnel AFI 90-301 (IG) and AFI 36-2706, Military Equal Opportunity 

and Treatment Program

--- Other investigations directed by specific instructions 

-- Virtually all others fall within the inherent authority of the commander 

--- AFI 90-301 may not be used as authority 

--- However, AFI 90-301 may be used for guidance (i.e., procedures and 

format) 

PROCEDURES

− Often conducted by a single Investigating Officer 

− Investigation or Inquiry 

-- Inquiry: determination of facts on matters not usually complex or serious; can 

be handled through routine channels. Report may be summarized. 

-- Investigation: used 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. 

− Actual AFI 90-301 inquiries or investigations may be privileged documents 
400 – The Military Commander and the Law 

-- The Inspector General controls release 

-- DoD/Air Force FOIA Program, DoD5400.7-R, AFSUP, and (Air Force) 

Privacy Act Program, AFI 33-332, govern release 

-- Ensure that privileged information is kept to a minimum 

− Witnesses 

-- Must be advised of the nature of the investigation and, if applicable, their right 

to counsel 

-- May refuse to answer questions only by invoking Article 31 of the UCMJ 

(military members) or Fifth Amendment (civilians) 

-- Confidentiality should be granted only when the necessary information cannot 

be obtained by any other means 

− Additional Guidance 

-- If the matter is more properly the domain of Security Forces or AFOSI 

(suspected criminal activity, etc.), have them conduct the investigation 

-- Always consult with the SJA before directing any inquiry or investigation 

-- Following initial interviews (for ALL types of investigations and inquiries) 

with Air Force personnel who are the subject of an investigation or inquiry, Air 

Force investigators will refer the individual to his/her first sergeant, commander 

or supervisor. These referrals must include person-to-person contact between 

the agency and unit personnel, and be documented. 

REFERENCES: 

DoD Regulation 5400.7/Air Force Supplement, DoD Freedom of Information Act 

Program (24 June 2002) 

AFI 31-206, Security Forces Investigations Program (1 August 2001) 

AFI 33-332, Privacy Act Program (29 January 2004) 

AFI 36-1201, Discrimination Complaints (25 July 1994) 

AFI 36-2706, Military Equal Opportunity (MEO) Program (29 July 2004) 

AFI 36-2910, Line of Duty (Misconduct) Determination (4 October 2002) 

AFI 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program

(26 September 2001) 

AFI 51-503, Aerospace Accident Investigations (16 July 2004) 

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

Justice (30 June 1994) 

AFI 71-101, V-1, Criminal Investigations (1 December 1999) 
Civil Law Issues for the Commander - 401 

AFI 71-101, V-2, Protective Service Matters (18 November 2002) 

AFI 91-204, Safety Investigations and Reports (14 February 2006) 

AFI 90-301, Inspector General Complaints Resolution (8 February 2005) 
402 – The Military Commander and the Law 

ALLEGATIONS AGAINST SENIOR OFFICIALS AND COLONELS 

(OR EQUIVALENTS) 

AFI 90-301 establishes strict standards for reporting and investigating allegations 

against senior officials and colonels (or equivalents) 

SENIOR OFFICIALS

− Senior officials are active duty, retired, Reserve, and ANG officers in the grade of 

0-7 select and above, and current and former civilian employees above the grade of 

GS/GM-15, including former and current Senior Executive Service (SES) 

employees and Air Force Civilian Presidential appointees 

− The senior official reporting requirements focus on "any allegations or adverse 

information of any kind" against Senior Officials 

-- Adverse information is a violation of criminal law, the UCMJ, the Joint Ethics 

Regulation, the Anti-Deficiency Act, or military or civilian personnel policies; 

an abuse of authority; fraud, waste, and abuse or mismanagement; reprisal; 

misconduct by a medical provider requiring an evaluation of clinical privileges; 

prohibited discrimination or sexual harassment; or any other matter which may 

reflect adversely on the individual’s judgment or exercise of authority (See AFI 

90-301, Attachment 1). 

− Reporting policy: When a commander or an IG official receives an allegation or 

adverse information involving a senior official, it must be reported to SAF/IGS 

immediately. The reporting format is set out in AFI 90-301, Figure 1.1. 

-- 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. They must not 

reveal the source of the allegations or the specific nature of the allegations (See 

AFI 90-301, paragraph 3.2.2.1). 

− Investigative policy: Unless otherwise specified by SAF/IG, all investigations into 

allegations against senior officials will be conducted by SAF/IGS 

COLONELS (OR EQUIVALENTS) 

− A colonel (or equivalent) is any Air Force active duty, 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; or an Air Force civil 

service employee in the grade of GM/GS-15 
Civil Law Issues for the Commander - 403 

− Reporting policy: When an IG becomes aware of any adverse information (see 

definition above) or allegation against a colonel (or equivalent) which are not 

obviously frivolous and which, if true, would constitute misconduct, or improper or 

inappropriate conduct as defined in AFI 90-301, they must notify SAF/IGQ 

immediately through their MAJCOM, FOA, or DRU channels. The reporting 

format is set out in AFI 90-301, Figure 1.2. 

− Investigative policy: IGs at all levels must immediately conduct a complaint 

analysis when allegations against a colonel (or equivalent) are received. If, after 

the complaint analysis, it is determined that an IG investigation is not warranted, 

the IG will notify SAF/IGQ through MAJCOM, FOA, or DRU channels. 

− All Military Equal Opportunity (MEO) or Equal Opportunity Treatment (EOT) 

complaints against senior officials will be handled through IG channels (AFI 36-

2706, para. 5.10.7) 

REFERENCES: 

AFI 36-2706, Military Equal Opportunity Program (29 July 2004) 

AFI 90-301, Inspector General Complaints (8 February 2005) 
404 – The Military Commander and the Law 

FLYING EVALUATION BOARDS

The Air Force has stringent requirements that must be met and maintained to perform 

rated flying duties 

POLICY 

− Each rated officer has an obligation to maintain professional standards. When 

performance of rated duty becomes suspect, a Flying Evaluation Board (FEB) may 

be convened 

− FEBs are administrative, fact-finding proceedings conducted to ensure information 

relevant to an officer's rated 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 5 years 

− Lack of proficiency (unless enrolled in a formal flying training program) 

− Failure to meet standards while enrolled in USAF 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 flying regulations 

− Officer exhibits habits, traits of character, or personality characteristics that make it 

undesirable to continue the officer 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 

− One additional rated officer is appointed to act as a nonvoting recorder 
Civil Law Issues for the Commander - 405 

− A judge advocate may be appointed as a nonvoting legal advisor to advise on 

procedural matters and ensure a fair hearing. A judge advocate shall not be 

appointed as an assistant recorder. 

− 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. The notification letter contains the reasons for the 

FEB, when and where the board will meet, witnesses to be called, and rights of the 

respondent. 

− Respondent may submit a request for voluntary disqualification from aviation 

service in lieu of FEB (VILO). FEB action is suspended until the MAJCOM acts 

on the VILO request. 

− Rights of the respondent 

-- Assigned military counsel of his or 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 and call witnesses and present 

evidence (recorder arranges for military witnesses) 

-- Testify personally and submit a written brief (respondent may not be compelled 

to testify) 

− Rules of evidence 

-- An 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 
406 – The Military Commander and the Law 

-- Made in closed session (voting members only) 

-- Each finding must be supported by specific evidence 

-- Findings must 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 

-- Convening Authority’s SJA reviews for legal sufficiency; review is limited to 

sufficiency of the evidence and compliance with procedural requirements 

-- Convening Authority adds comments and recommendations; 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 

-- MAJCOM commander makes the final determination in all FEB cases 

convened at the MAJCOM level or lower 

REFERENCE: 

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

Chapter 4 (29 July 2003) 
Civil Law Issues for the Commander - 407 

COMMERCIAL ACTIVITIES

Private Organizations (PO) and unofficial activities/organizations must not engage in 

activities that duplicate or compete with AAFES, Services activities, or 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 thrift-shop 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. 

DOD COMMERCIAL SPONSORSHIP PROGRAM 

− Commercial sponsorship is a DoD program that allows commercial enterprises to 

provide support to morale, welfare or recreation programs in exchange for 

promotional recognition. 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 dayto-day MWR management and overhead 

− Only Services MWR programs may use the commercial sponsorship program. 

Other Air Force organization, units, private organizations, or unofficial activities 

are not authorized to use commercial sponsorship to offset program or activity 

expenses. 

− Installation commanders control the commercial sponsorship program at base level 

and approve/disapprove sponsorships worth $5,000 or less (or other values as 

delegated by the MAJCOM) 

UNSOLICITED COMMERCIAL SPONSORSHIP 

− Unsolicited commercial sponsorship must be entirely initiated by the prospective 

sponsors or their representatives 

− Services 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 
408 – The Military Commander and the Law 

may also send letters of a strictly nonspecific nature 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 

SOLICITED COMMERCIAL SPONSORSHIP 

− The Solicited Commercial Sponsorship Program is the only authorized process for 

soliciting commercial sponsors for MWR elements of Services programs 

− Commercial sponsorship managers announce all sponsorship solicitations to the 

maximum number of potential sponsors feasible in one or more of the following: 

The Commerce Business Daily (CBD) per AFMAN 34-416, local newspapers, 

Chamber of Commerce newsletters or other appropriate business community 

publications, and then evaluate prospective sponsors’ proposals on a best-offer 

basis 

-- MWR elements of Services programs may not solicit sponsorship from alcohol 

or tobacco companies under any circumstances 

-- Military systems divisions of defense contractors will not be solicited; however, 

solicitations may be sent to any domestic consumer products division of 

defense contractors. Unsolicited offers may be accepted from any segment of a 

defense contractor. 

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 in other areas designated by the installation 

commander 

− Certain solicitation practices are prohibited on military bases, including, but not 

limited to 

-- Soliciting personnel who are in an “on-duty” status 
Civil Law Issues for the Commander - 409 

-- Soliciting any kind of mass audience, i.e., commander's call or guard mount 

-- Soliciting in housing areas without an appointment 

-- Soliciting door-to-door 

-- Implying DoD sponsorship or sanction 

-- Soliciting members junior in grade 

-- Procuring or supplying roster listings of DoD personnel 

-- Using official ID cards by retirees or reservists to gain access for soliciting 

− 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. Child care in family quarters is governed by 

AFI 34-276. 

-- 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 

RELATED ISSUES 

− Games of Chance 

-- Bingo and Monte Carlo (Las Vegas) events are controlled by the Air Force 

Club Program 

-- Cash prizes may be awarded for bingo in accordance with AFI 34-272, 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, and members of other clubs exercising reciprocal privileges 

and their adult family members, and adult guests 
410 – The Military Commander and the Law 

-- 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 SJA's advice. Raffles must not otherwise 

violate local civilian laws. 

-- The funds raised must benefit DoD personnel or their families and must be 

conducted for a charitable, civic, or other community welfare purpose within 

the DoD community 

-- Raffle requests to raise funds for purely social, recreational, or entertainment 

purposes which benefit only individual PO members and/or family members, 

such as to underwrite the costs of a sight-seeing tour will not be approved 

-- Raffles must not be conducted at the workplace and Air Force members or 

civilians must not conduct raffles during duty time 

-- Air Force officials may not officially endorse a raffle 

REFERENCES: 

DoDD 1344.7, Personal Commercial Solicitation on DoD Installations (13 February 

1986) (C2, 2 May 1991) 

DoD 5500.7-R, Joint Ethics Regulation (30 August 1993) (C6, 23 March 2006) 

AFI 32-6001, Family Housing Management (23 January 2002) 

AFI 34-219, Alcoholic Beverage Program (9 September 1998) 

AFI 34-223, Private Organization (PO) Program (11 August 2003) 

AFI 34-262, Services Programs and Use Eligibility (27 June 2002) 

AFI 34-272, Air Force Club Program (1 April 2002) 

AFI 34-276, Family Child Care Programs (1 November 1999) 

AFI 34-407, Air Force Commercial Sponsorship Program (19 July 2005) 

AFI 36-3101, Fundraising Within the Air Force (12 July 2002) 

AFMAN 34-228, Air Force Club Program Procedures (1 April 2002) 

AFMAN 34-416, Air Force Commercial Sponsorship and Sale of NAFI Advertising 

Procedures (5 October 2004) 
Civil Law Issues for the Commander - 411 

MWR AND NONAPPROPRIATED FUND INSTRUMENTALITIES

Morale, Welfare, and Recreation (MWR) activities are those activities that provide for 

the comfort, pleasure and mental and physical improvement of authorized users. The 

activities include recreational and free-time programs, resale merchandise and services, 

and activities to promote the general interest. 

Nonappropriated Funds (NAF) are funds that are not appropriated by Congress and are 

not furnished from revenue derived from taxation. NAF funds are self-generated by 

Nonappropriated Fund Instrumentalities (NAFIs). 

− NAFIs are 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, not civil servants. 

− 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. 

− 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. 

− 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 

− 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 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 

REFERENCES: 

AFI 34-201, Use of Nonappropriated Funds (NAFS) (17 June 2002) 

AFI 34-223, Private Organization (PO) Program (11 August 2003) 
412 – 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 

commanders to help maintain discipline, health, morals, 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 

-- They may be local or regional; some bases choose not to establish a board 

-- Boards may recommend the commander place a civilian establishment or area 

"off-limits" to military members 

-- The Board 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 board 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 opportunity to present any relevant information to the board 

-- The AFDCB recommends to the commander that the establishment be placed 

"off-limits" 

-- The 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. The establishment remains off-limits until the decision is 

overturned or the commander determines adequate corrective action has been 

taken. 
Civil Law Issues for the Commander - 413 

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 (OCONUS), 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 (30 June 1993) 
414 – 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 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 any Services, nonappropriated fund 

instrumentalities (NAFI), or AAFES activity 

− Unofficial activities may not engage in frequent or continuous resale activities or 

operate amusement or slot machines 

-- AFI 34-223 permits occasional sales for fund-raising purposes when approved 

in advance by the installation commander or designee. "Occasional" is defined 

as not more than two (2) fund-raising events per calendar quarter. 

-- Unit snack bars are subject to lawsuits and should purchase liability insurance 

in an amount adequate to cover potential liability arising from the 

preparation/service of food. Individual members of the unit/squadron could 

incur personal liability if not insured. 

-- 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, or conduct games of chance, lotteries, raffles, or other gambling-type 

activities 

REFERENCES: 

AFI 34-223, Private Organization (PO) Program (11 August 2003) 

AFI 36-3101, Fundraising within the Air Force (12 July 2002) 
Civil Law Issues for the Commander - 415 

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 

WHEN VOLUNTEER SERVICES MAY BE ACCEPTED 

− 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 conflict 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 an SJA opinion any time "free" services are offered, unless you know they are 

specifically authorized by law 

TYPES OF PERMISSIBLE VOLUNTEER SERVICE 

− The military services are specifically authorized by law to accept certain voluntary 

services, including medical, dental, legal, religious, family support, library, and 

MWR services 

− Volunteers providing services under these 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 be placed in a policy-making position 

-- Volunteers may be provided training to ensure they can appropriately provide 

the necessary services 
416 – The Military Commander and the Law 

− Federal agencies are specifically authorized by law to accept voluntary services 

provided by student interns as part of an established educational program 

− The military services are specifically authorized by law to accept the services of 

Red Cross volunteers 

− They are not employees of the United States, but under a Memorandum of 

Understanding between the Departments of Justice and Defense, they are generally 

considered government employees for purposes of the protections of the FTCA 

REFERENCES: 

10 U.S.C. § 1588 

31 U.S.C. § 1342 

DoDD 1330.5, American National Red Cross (16 August 1969) (C4, 20 December 

1991) 

AFI 36-3105, Red Cross Activities Within the Air Force (2 May 1994) 

AFI 51-502, Personnel and Government Recovery Claims (1 March 1997)
The Air Force Claims Program - 417 

CHAPTER TWELVE: 

THE AIR FORCE CLAIMS PROGRAM 

Introduction to Claims...............................................................................................418 

Claims Against the Government

Personal Property Claims ....................................................................................419 

Tort Claims..........................................................................................................423 

Claims by the Government

Aviation Claims...................................................................................................427 

Carrier Recovery Claims .....................................................................................431 

Reports of Survey ................................................................................................433 

Property Damage Tort Claims in Favor of the United States..............................440 

Hospital Recovery Claims...................................................................................443 

Other Liability Issues

Article 139 Claims...............................................................................................445 

Liability For Damage to Rental Vehicles............................................................448 
418 – The Military Commander and the Law 

INTRODUCTION TO CLAIMS

WHAT IS A "CLAIM" 

− A claim is any signed, written demand made on or by the Air Force for the payment 

of a sum certain (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 administrative 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 or her position before the incident on which the claim is based 

− The personnel claims process is not intended to be an adversarial one 

-- The policy underlying passage 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

− The Air Force designates a geographic area of claims responsibility (claims 

jurisdiction) for each base staff judge advocate 

− The Department of Defense assigns countries of single-service claims 

responsibility to each military department for processing and settling of tort claims 

for and against the United States 

REFERENCES: 

AFI 51-501, Tort Claims (15 December 2005) 

AFI 51-502, Personnel and Government Recovery Claims (1 March 1997) 
The Air Force Claims Program - 419 

PERSONAL PROPERTY CLAIMS

The Personnel Claims Act, 31 U.S.C. § 3721, 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

− Under The Personnel Claims Act, 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 (PTV) 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 

-- Maximum payment is $40,000, unless the claim arises from emergency 

evacuations or extraordinary circumstances in which cases the maximum 

payment is $100,000 
420 – The Military Commander and the Law 

PROCESSING GUIDELINES 

− Statute of Limitations 

-- Written claim for a sum certain must be presented by the member (or 

authorized agent with a power of attorney) within two years from the incident 

date or date of delivery 

-- The requirement to file the DD Form 1840/1840R with the claims office within 

a 70-day period is separate from the requirement to file the claim within two 

years 

-- Damage for privately owned vehicles (POVs) is noted on DD Form 788 at the 

port 

− 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 

-- Civilian employees of the Air Force paid from appropriated and 

nonappropriated funds. Claims filed by nonappropriated funds civilian 

employees are paid from nonappropriated funds 

-- Civilian employees of the Defense Commissary Agency (DeCA) who work on 

an Air Force installation 

-- DoD Dependent school teachers and administrative personnel 

-- AFRES and ANG personnel when performing active-duty, full-time Guard 

duty, IDT training, and ANG technicians serving under 32 U.S.C. § 709 

-- AFROTC cadets traveling at government expense or on active duty summer 

training 

-- USAF 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 
The Air Force Claims Program - 421 

-- 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 

do-it-yourself (DITY) moves and luggage and hand-carried property. 

-- At "quarters" and "other authorized places" (examples: fire, explosion, 

hurricane, theft, vandalism in base housing in CONUS; at overseas quarters 

either on or off base) 

-- To privately owned vehicles (examples: in shipment, theft or vandalism to 

parked cars, damages or loss during TDY if use of POV authorized, paint 

oversprays); and 

-- Other categories as described in AFI 51-502, Chapter 2, Section E 

− Depreciation and maximum allowances 

-- The military services have jointly established an "allowance list depreciation 

guide" (ALDG) to determine depreciation rates for most items and to limit 

maximum payments for some categories of items 

-- For missing or destroyed property, claimants are paid the actual value of the 

item at the time of loss. The actual value is the current replacement cost, less 

depreciation. The law does not permit awarding current replacement cost 

without regard to depreciation. Full-replacement insurance coverage may be 

purchased directly from carrier or private insurer at member's expense. 

-- For repairable items, claimants are paid the actual cost or estimated cost of 

repairs, up to the actual depreciated value of the items 

− Reconsideration of a claim 

-- A claimant may request reconsideration of a partial approval or denial of a 

claim 

-- Sixty (60) days is considered reasonable time to appeal from the claim 

settlement date 

-- When a claimant requests reconsideration in writing, the original settlement 

authority will personally act on the reconsideration request. If the original 

settlement authority does not grant the relief requested, the reconsideration 

request is forwarded to the SJA. 

-- As of 1 Oct 98, the base SJA is delegated the authority to readjudicate claims 

that are presented for reconsideration if the claim is within the SJA’s settlement 

authority ($40,000). The decision of the SJA is final. If the claim is beyond the 
422 – The Military Commander and the Law 

SJA’s settlement authority, if the SJA took initial action on the claim, or if the 

SJA was actively involved in the initial decision, then the reconsideration must 

be forwarded to AFLOA/JACC for resolution. 

REFERENCES: 

31 U.S.C. § 3701, 3721, Military Personnel and Civilian Employees’ Claims Act 

(Personnel Claims Act) 

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) 

AFI 51-502, Personnel and Government Recovery Claims (1 March 1997) 

AFLOA/JACC, General Claims Handbook, Chapter 2 (30 September 1997) 
The Air Force Claims Program - 423 

TORT CLAIMS

INTRODUCTION

− Under certain circumstances, federal law makes the United States liable for 

property damage, personal injuries, and death that results 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 results from noncombat activities of United States 

armed forces 

− Normally, to receive compensation for their loss, an injured person or entity must 

present a written request for payment of a specific amount of money (claim) within 

two years of the accident or incident that created the loss 

− In some cases, denial of a claim or failure to resolve a claim within six months after 

it is presented to the Air Force creates a right to sue the United States in federal 

district court 

− Installation legal offices 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 of government personnel 

are tort claims 

− Common tort claims: GOV-POV accident, slip and fall on base, unlawful detention 

or search, medical malpractice, aircraft accident, mishap with rental car while TDY 

− Claimant may be individual, organization, or company that suffered loss because of 

alleged negligent or wrongful act or omission by government personnel 

− Claimant may be agent, legal representative, or someone with subrogation rights of 

the injured party 

PAYABLE CLAIMS

− Claim must demand a specific amount of money 

− Claim must allege damage to real or personal property, personal injury, or death 
424 – The Military Commander and the Law 

− Damage must be direct result of negligent or wrongful act or omission of 

government personnel acting within the scope of employment 

− A negligent act means that a person departed from the conduct expected of a 

reasonably prudent person under similar circumstances 

− Government personnel include Air Force military and civilian employees, Civil Air 

Patrol members if under Air Force direction and control, and Air National Guard 

military members in federal status 

− JA 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 directed by competent authority and 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 where the alleged negligent act or omission 

occurred 

-- For claims arising in foreign countries, liability is based on general principles of 

American tort law. Foreign rules and regulations are relevant but not 

controlling unless made controlling by international agreement or United States 

military regulation or policy. 

-- The principles of absolute, strict, or "no fault" liability do not apply 

− If damage is direct result of "noncombat activity," 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 the civilian community, and has been historically considered as 

furnishing the proper basis for claims 

-- Common "noncombat activities" include operation of military 

aircraft/spacecraft/missiles, practice bombing or firing of heavy guns and 

missiles, movement of tanks 
The Air Force Claims Program - 425 

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 alleging a government "taking" of air space over land 

-- Claims for personal injury, death or property damage incurred "incident to 

service" by a military member 

-- Claims for personal injury or death incurred "in performance of duty" by a 

civilian employee of United States 

--- If a civilian appropriated fund employee suffers personal injury or death, 

the exclusive remedy is Federal Employees' Compensation Act (5 U.S.C. 

§8116) 

--- If a civilian nonappropriated employee suffers personal injury or death, the 

exclusive remedy is the Longshore and Harbor Workers' Compensation Act 

(5 U.S.C. §8173) 

PAYMENT

− Installation JA accepts and investigates tort claims. Based on relevant facts and 

law, installation JA either settles a claim, denies the claim, or forwards the claim to 

higher HQ for action 

-- Installation JA may deny or pay claims filed in any amount when payment is 

for $25,000 or less 

--- If JA approves claim for $2,500 or less, payment comes from Air Force 

claims funds 

--- If JA approves claim for more than $2,500, payment comes from the 

Judgment Fund Group of the Department of the Treasury 
426 – The Military Commander and the Law 

-- Installation JA may not pay or deny certain claims and must forward them to 

higher HQ for disposition 

--- Medical malpractice 

--- Legal malpractice 

--- On-the-job personal injury or death of a contractor's employee 

--- Admiralty and maritime claims (e.g., claims involving MWR watercraft, 

damage from aircraft parts that are salvaged from lakes, rivers, and oceans) 

--- Civil Air Patrol claims 

− If installation JA denies a claim, claimant may appeal or request reconsideration, 

depending on which statute dictates processing of the claim 

-- Installation JA can grant appeal or reconsideration request 

-- Installation JA must forward any appeal or reconsideration request it does not 

grant to higher HQ for final action 

− In certain cases, claimant may sue the Air Force within six months after final action 

is taken on the claim 

-- Final action is the denial of claim or, when applicable, denial of a 

reconsideration request 

--- Six months of no action is deemed a denial 

-- Suit is in federal district court. Department of Justice (DOJ) defends Air Force 

in litigation. Installation JA works with AFLOA/JACT to help DOJ defend 

litigation 

REFERENCES: 

5 U.S.C. § 8116 

5 U.S.C. § 8173 

10 U.S.C. § 2733, Military Claims Act 

28 U.S.C. §§ 1346(b), 2401, 2671-2680, Federal Tort Claims Act 

AFI 51-501, Tort Claims (15 December 2005) 
The Air Force Claims Program - 427 

AVIATION CLAIMS

Aviation claims occur in a variety of ways, including noise and overpass claims from 

low overflights and sonic booms, and accidents involving active-duty, Air Force 

Reserves (AFRES), Air National Guard (ANG), Aero Club, and Civil Air Patrol 

aircraft 

− When any claim involving an Air Force aircraft is made, refer the claimant to the 

legal office at the base nearest the claim site 

− The legal office will fully investigate and adjudicate the aviation claim 

SONIC BOOM AND LOW OVERFLIGHT CLAIMS

− Sonic boom damage

-- Overpressures based upon speed, altitude and location of aircraft relative to 

claimant’s property, in pounds per square feet (psf) will determine whether 

claimed damage could have been caused by sonic boom 

-- Sonic booms are not selective and may encompass entire area 

-- Sonic booms are instantaneous and last only for a few seconds 

-- Window, glass and bric-a-brac are first type of damage 

− Low overflight damage

-- Noise generally does not cause damage to property 

-- Noise may cause cattle and horse stampedes, startling of chickens, silver foxes 

and minks, cracking of exotic bird eggs, and/or injuries to ostriches 

− Adjudication of claims 

-- If cause of damage determined to be military flight activity, claim may be 

payable for "noncombat activity" under the Military Claims Act (MCA) or the 

National Guard Claims Act (NGCA) 

--- "Noncombat activity" is an activity other than combat, war, or armed 

conflict that is particularly military in nature and has little parallel in 

civilian pursuits 
428 – The Military Commander and the Law 

--- No showing of negligence required for noncombat activity. Causation and 

amount of damages are only issues. 

− Sonic boom & low overflight litigation. Claims may be brought under the Federal 

Tort Claims Act (FTCA), and negligence, causation, and damages must be proven. 

AEROSPACE 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 32 – federally funded training orders (e.g. IDT or AT training) 

--- Title 10 – federal active duty orders 

--- State duty (e.g., disaster response, riot control, emergency situation) 

-- The United States is only liable for negligence of ANG members performing 

duty under Title 10 or Title 32 at time of incident 

-- All ANG aviation claims are routinely adjudicated under the noncombat 

provisions of the NGCA 

− AFRES Claims

-- Crewmembers have same status as active duty personnel 

-- All AFRES aviation claims are routinely adjudicated under the noncombat 

provisions of the MCA 

− Aero Club Claims

-- Participation in Aero Club activity is a recreational activity, and the negligence 

of Aero Club member or participant is outside scope of their employment 

-- The United States is not liable for negligence of Aero Club member or 

participant engaged in recreational activity 

-- All Aero Club members and participants are covered under NAFI liability 

insurance for their negligence in causing a mishap 
The Air Force Claims Program - 429 

--- Look to NAFI insurance to pay third party claims caused by the negligence 

of Aero Club members or participants, engaged in recreational activity 

--- Not cognizable under Air Force claims statutes 

--- Third-party claims caused by the negligence of Aero Club employees 

(nonappropriated fund 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 by NAFI. 

-- Active duty and AFRES military members are barred by Feres doctrine from 

receiving compensation under Air Force claims statutes for their death or 

injuries arising out of their participation in an Aero Club activity 

− Civil Air Patrol (CAP) Claims

-- CAP is a federally chartered, nonprofit civilian corporation, which has been 

designated as a voluntary 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. 

-- Air Force is authorized to use the services of the CAP in fulfilling the 

noncombat missions of the Air Force (designated as Air Force assigned 

missions) 

--- Typical Air Force assigned missions include search and rescue, route 

reconnaissance, cadet orientation flights, specified training and proficiency 

flights 

--- CAP is instrumentality of United States when performing Air Force 

assigned missions 

--- Third-party claims arising out of activities of CAP while performing Air 

Force assigned missions are cognizable under FTCA 

--- Senior CAP members or CAP cadets (18 years or older) are covered under 

Federal Employee Compensation Act for their death or injuries incurred 

while in the performance of an Air Force assigned mission 

-- 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 Air Force-assigned missions 
430 – The Military Commander and the Law 

REFERENCES: 

10 U.S.C. § 2733, Military Claims Act 

28 U.S.C. §§ 1346(b), 2671-2680, Federal Tort Claims Act 

32 U.S.C. § 715, National Guard Claims Act 

AFI 51-501, Tort Claims (15 December 2005) 
The Air Force Claims Program - 431 

CARRIER RECOVERY CLAIMS

BASIS FOR CARRIER RECOVERY (CR) CLAIMS

− The basis for a CR claim is the failure of a carrier, warehouse, or contractor to 

adequately protect goods entrusted to them for shipment 

-- A carrier must deliver goods in the same amount and condition as when it took 

possession of them 

-- A carrier's liability may, however, be limited by its contract with the 

government 

− The Air Force is entitled to collect up to the carrier's or warehouse's contracted 

liability depending on the type of shipment or method of transportation 

− The claimant assigns to the United States all claim rights against the carrier or 

contractor which creates a right of recovery on behalf of the United States by 

signing a DD Form 1842 or AF Form 180 

PRINCIPLES OF RECOVERY

− Carrier is generally liable for loss or damage occurring while goods are in its 

possession 

− Government must prove a transit or storage loss through written exceptions to 

damage taken at the time of delivery (on DD Form 1840) or within 75 days (on DD 

Form 1840R) 

− The claimant must submit DD Form 1840R to the claims office within 70 days of 

delivery so that the claims office can review the form and mail it to the carrier 

within 75 days of delivery

− Failure to note loss or damage on DD Form 1840/1840R within the prescribed time 

limit creates a presumption that the loss or damage was not shipment-related and 

the carrier is no longer liable 

− At the time the claimant is paid, the claims office will make a demand on the 

carrier in an amount based on the type of shipment or method of transportation 

− The government must file suit within 6 years 
432 – The Military Commander and the Law 

REFERENCES: 

31 U.S.C. §3701, 3721, Military Personnel and Civilian Employees’ Claims Act 

(Personnel Claims Act) 

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) 

AFI 51-502, Personnel and Government Recovery Claims (1 March 1997) 

AFLOA/JACC, General Claims Handbook, Chapter 3 (30 September 1997) 
The Air Force Claims Program - 433 

REPORTS OF SURVEY

The report of survey (ROS) is an official report of the facts and circumstances 

supporting the assessment of financial liability for the loss, damage, or destruction of 

Air Force property and serves as the basis for the government's claim for restitution 

REPORTS OF SURVEY GENERALLY

− Air Force members and employees can be held liable for the loss, damage or 

destruction of government property proximately caused by their negligence, willful 

misconduct, or deliberate unauthorized use 

− With respect to government owned motor vehicles, however, Air Force members 

and employees may be held financially liable only if the damage resulted from their 

gross negligence, willful misconduct, or deliberate unauthorized use 

-- The purpose of the gross negligence standard is to more equitably distribute the 

risk of liability associated with government vehicle damage 

-- As with any ROS, the commander is not precluded from taking other 

administrative or disciplinary action against individuals who damage 

government vehicles through simple negligence not amounting to gross 

negligence 

PURPOSES OF THE REPORT OF SURVEY

− Authorizes adjustment of property accountability records 

− Establishes pecuniary liability 

− Prescribes corrective action to prevent recurrence of loss, damage or destruction of 

Air Force property 

− Serves as authority for effecting collection of an indebtedness 

WHEN REPORTS OF SURVEY ARE NOT USED

− Damage occurring during combat operations 

− Most loss or damage to major weapons systems used in authorized operations or 

occurring during aircraft accidents 
434 – The Military Commander and the Law 

− Damage to rental vehicles (unless an Air Force contracting officer enters into a 

written agreement with a commercial rental vehicle company to make vehicles 

available for government use) 

− Property owned by another DoD component or Nonappropriated Fund 

Instrumentality (NAFI) 

WHEN REPORTS OF SURVEY ARE REQUIRED

− The requirement for an ROS is controlled by the type of property involved and the 

circumstances of the loss, damage or destruction 

− An ROS is required for unresolved discrepancies with supply system stocks 

involving 

-- Sensitive or classified items, regardless of dollar value 

-- Pilferable items, when a discrepancy is $100 or more 

-- An indication or suspicion of fraud, negligence, theft or abuse 

-- Personal arms 

-- An amount greater than $50,000 

− An ROS is normally required for property record items lost, damaged or destroyed. 

It is mandatory for 

-- Controlled or sensitive items 

-- All types of weapons 

-- Property having a security classification 

LIABILITY OF AIR FORCE MEMBERS

− Liability is usually limited to one month’s base pay, with the following exceptions 

-- Accountable officers, whose negligence, willful misconduct or deliberate 

unauthorized use of government property proximately caused the loss of, or 

damage to, property under their accountability, are liable for the entire amount 

of the loss to the government 

-- Individuals are liable for the full amount of loss or damage to personal arms 

and equipment proximately caused by their own negligence, willful 

misconduct, or deliberate unauthorized use 
The Air Force Claims Program - 435 

-- Family housing occupants may be fully liable for damage if 

--- The loss or damage was caused by gross negligence or willful misconduct 

of the member; or 

--- The loss or damage was caused by gross negligence or willful misconduct 

of a dependent or guest when the member was on notice of the particular 

risk involved and failed to take preventive action 

THE REPORT OF SURVEY PROCESS

− Initiating a Report of Survey 

-- Normally the organization that maintains accountability records for the lost or 

damaged property is responsible to initiate an ROS by appointing an initial 

Investigating Officer (IO) 

--- Unit commanders appoint the IO for property record items 

--- The accountable officer will appoint the IO for supply system stocks 

-- IO should be appointed as soon as possible after loss or damage is discovered 

--- IO must be an officer, an NCO (E-5 or above), or a civilian (WG-9, WL-5, 

WS-1 or GS-7 or above) and should be senior to individual facing potential 

liability 

--- IO determines and documents facts surrounding the loss or damage and 

recommends whether or not an individual should be held financially liable 

--- IO forwards report to appointing authority 

− Appointing Authority

-- Usually the Comptroller, designated in writing by the approving authority 

-- Appoints financial liability officer when 

--- The initial investigation results are insufficient to make a determination of 

whether or not negligence or abuse was the proximate cause of the loss, 

damage or destruction of government property 

--- The value of the property, or the circumstances of the case, warrant further 

investigation 
436 – The Military Commander and the Law 

-- Reviews all ROSs, appeals, and requests for waiver or reconsideration and 

makes recommendations to the approving authority 

− Financial Liability Officer

− Must be an officer, NCO (E-7 or above), or a civilian employee (GS-7, WG-9, WL5, WS-1 or above) and should be senior to the individual subject to possible 

financial liability 

− Conducts investigation by examining physical evidence and interviewing witnesses 

to determine proximate cause of loss or damage, responsibility for the loss or 

damage, and cost or estimate of repairs 

− Forwards findings and recommendations to Appointing Authority 

− Approving Authority

-- Usually the wing commander. In unusual situations, the authority may be 

delegated in writing to squadron or other unit commanders 

-- May authorize appointing authority to take final action on all ROSs involving 

less than $2,000 where there is no evidence of negligence or other misconduct 

-- Takes final action on ROSs in cases where appointing authority does not take 

final action, including 

--- Cases, for any dollar amount, where there is no evidence of negligence, 

willful misconduct, or deliberate unauthorized use; and 

--- Cases where the amount to be assessed is equal to or less than $10,000 and 

the senior host-base commander is not personally involved 

-- Approves or disapproves investigation findings and recommendations and 

ensures individuals are notified 

-- Ensures all persons found financially liable are informed of their appeal rights 

and given an opportunity to review the file 

-- Considers appeals and requests for reconsideration or for waiver of liability 

-- Authorizes or delegates approval of repairs or replacement in kind 

− Intermediate commander (e.g., Numbered Air Force) takes action on reports when 

amount of financial liability to be assessed exceeds $10,000 but does not exceed 

$25,000, or when the senior host base commander is personally involved 
The Air Force Claims Program - 437 

− MAJCOM commander takes action on all reports not approved at base or 

intermediate command level, or when the intermediate commander is personally 

involved 

− If the MAJCOM commander is personally involved and negligence is evident, the 

report is forwarded to USAF/LGSS 

− Individual rights 

-- Consult counsel 

-- Review the ROS file and evidence 

-- Request waiver, or request permission to provide repair or replacement in kind 

-- Request reconsideration 

-- Appeal 

AVOIDING REPORT OF SURVEY LIABILITY

− Waiver

-- Member specifically requests waiver of liability in writing, supplying 

supporting evidence for the request. If the case involves assigned family 

housing the approving authority must consider a waiver, even if the member 

does not specifically request it. 

-- Factors to consider include degree of abuse or negligence involved, extent to 

which collection would cause substantial financial hardship or adversely impact 

unit morale, prior instances of negligent conduct toward government property, 

and available government remedies against other culpable persons 

-- Approving Authority may waive all or part of an individual's liability, IF 

--- The waiver is determined to be in the best interest of the Air Force; and 

--- The waiver is not specifically prohibited (as in the case of accountable 

officers and personal arms and equipment) 

-- If denied, the member may appeal the determination of liability and request 

further waiver consideration by the MAJCOM commander 

− Reconsideration
438 – The Military Commander and the Law 

-- Member may request reconsideration based on minor corrections, new 

evidence, or because the property thought to be missing is later found 

-- Minor corrections that do not involve important changes to the findings or 

recommendations should be made to the original and to any copies of the ROS 

-- Based on new evidence, the approving authority may reopen the investigation, 

if necessary, or may take corrective action without further investigation 

-- If property believed to be lost is later found but is damaged, the original ROS 

should be canceled and a new ROS initiated 

− Appeal

-- Must be submitted in writing, and 

-- Must specifically state the alleged errors or injustices in the report of survey 

process 

--- Unless precluded by AFMAN 23-220, the approving authority may grant 

the appeal 

--- If denied, the ROS is forwarded to the MAJCOM commander for final 

action, or HQ USAF/LGSS if the MAJCOM commander is the approving 

authority 

-- Collection is suspended until all appeals are complete unless the individual is 

scheduled for impending separation 

− Financial Liability Board

-- A team of investigators consisting of officers, enlisted members, or civilian 

employees who are qualified to investigate an accident, incident, or occurrence 

within their area of expertise. May consist of two or more persons, one who 

will be the base Claims Officer. 

-- Consolidates functions of the appointing authority and financial liability officer 

(one of the members is appointed in the orders to serve as appointing authority); 

its objective is to relieve commanders of the administrative burdens involved in 

the ROS process 

--- Makes a preliminary review to determine whether a financial liability 

officer is required 

--- Acts as financial liability officer by investigating cases as necessary 
The Air Force Claims Program - 439 

--- Inspects the destruction or abandonment of unserviceable property 

--- If the ROS involves $2,000 or less and there is no indication of negligence 

or misconduct, the member acting as appointing authority can take final 

action 

REFERENCES: 

AFI 34-202, Protecting Nonappropriated Fund Assets, Chapter 6 (Losses and 

Collection Actions) (27 August 2004) 

AFMAN 23-220, Reports of Survey for Air Force Property (1 July 1996) 
440 – The Military Commander and the Law 

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 pro-active and aggressively look 

for these claims, which are known as "G" claims or "Government" claims. This does 

not include hospital recovery ("HR") 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 hospital recovery claim 

--- Process the two claims separately, but investigate them together 

-- The tortfeasor or his insurer presents a claim against the government arising 

from the same incident, i.e., "counterclaims." Process 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 

higher HQ before asserting. 

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 
The Air Force Claims Program - 441 

-- If the loss or damage was caused by a government employee with 

accountability for the property under the Report of Survey system 

--- Under the Report 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 one month's pay. 

--- However, the Report of Survey manual, AFMAN 23-220, Reports of Survey 

for Air Force Property, para 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 

their private automobile 

STATUTE OF LIMITATIONS

− The United States must file a lawsuit for loss or damage of government property, 

based in tort, within three 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 or upon some other theory or upon state law 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 

− The Air Force may offset a tort claim against an amount that it owes to the claimant 

− When two or more tort-feasors 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. 31 U.S.C. § 3302, 10 U.S.C. § 2831. 
442 – The Military Commander and the Law 

-- 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 

Revolving Fund to the appropriate Revolving Fund 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. § 2831, Military Family Housing Management Account 

31 U.S.C. § 3302 

31 U.S.C. §§ 3701, 3711-3719, Federal Claims Collection Act 

AFI 51-502, Personnel and Government Recovery Claims (1 March 1997) 

AFMAN 23-220, Reports of Survey for Air Force Property (1 July 1996) 
The Air Force Claims Program - 443 

HOSPITAL RECOVERY CLAIMS

The Air Force may recover the cost of providing medical care to military members or 

other authorized recipients 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 an HR 

claim 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 (e.g., 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 three 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. 

COORDINATION OF BENEFITS (COB) CLAIMS

− Under this law, Congress allows MTFs to pursue recoveries from statutorily 

defined plans 
444 – The Military Commander and the Law 

-- 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 U.S. a third-party beneficiary under such plans 

− Successful recoveries of these claims 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 is particularly helpful in "no-fault" insurance 

states that have eliminated traditional tort liability. 

− COB has been extended to allow recovery of payments made through TRICARE 

REFERENCES: 

10 U.S.C. § 1095, Coordination of Benefits statute 

10 U.S.C. § 1095b 

42 U.S.C. §§ 2651-2653, Federal Medical Care Recovery Act 

AFI 51-502, Personnel and Government Recovery Claims (1 March 1997) 

AFLOA/JACC, General Claims Handbook, Chapter 5 (30 September 1997) 
The Air Force Claims Program - 445 

ARTICLE 139 CLAIMS

Under Article 139, Uniform Code of Military Justice (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; 

or must arise from violent, 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 

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 

-- 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. 

-- 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. 

-- 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 
446 – The Military Commander and the Law 

--- 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 

− Set the amount to be assessed against each offender, but not more than the amount 

fixed by the board 

− 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. AFLOA/JACC must approve any 

damages in excess of $5,000 against an offender for a single incident. 

− Notify the offender and claimant of the action taken 

APPEAL AND RECONSIDERATION

− The appointing 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 
The Air Force Claims Program - 447 

REFERENCES: 

UCMJ art 139 

AFI 51-502, Personnel and Government Recovery Claims (1 March 1997) 

AFLOA/JACC, General Claims Handbook, Chapter 6 (30 September 1997) 
448 – The Military Commander and the Law 

LIABILITY FOR DAMAGE TO RENTAL VEHICLES

INTRODUCTION

− Vehicles rented on government orders are for official use only 

− “Use of a special conveyance 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.” JFTR, para U3415G and JTR, para 

C2102. 

− “Official Purposes” is a different standard than “scope of employment” 

-- “Official purposes” is a standard in the JFTR/JTR, and is used to determine 

whether or not a renter will be reimbursed for damage to a rental vehicle 

-- “Scope of employment” is a legal standard under the claims statutes, and will 

be used to determine whether or not the United States will defend a renter in a 

lawsuit 

-- Within North Atlantic Treaty Organization (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 

− Case interpreting Hawaii law held that a Navy civilian, TDY to Pearl Harbor, who 

was returning to his off-base quarters at the end of the duty day, was not in the 

scope of his employment when he had an accident while still on the naval station. 

Clamor v. United States, 240 F.3d 1215 (9th Cir. 2001). 

-- The Navy considered the employee to be using the vehicle for “official 

purposes,” so the damage to the rental car could be paid by the government 

-- Because the Navy civilian was found not to be within the scope of employment, 

he had to rely upon his private insurance to cover the injuries to the person in 

the other car 

-- Some question now whether members are in the scope of employment if 

government meals are directed on orders and the purpose of trip is to go offbase for meals 
The Air Force Claims Program - 449 

− 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 rental vehicle through the Commercial Travel Office (CTO). JFTR, para 

U3415B and JTR, para C2102. 

-- Generally, CTO will reserve a vehicle from a company participating in the 

Surface Deployment and Distribution Command (SDDC) (formerly, Military 

Traffic Management Command (MTMC)) negotiated agreement 

-- It is TRANSCOM policy for CTOs to reserve a rental vehicle from a company 

that subscribes to the SDDC-negotiated agreement 

--- Use of companies and rental car/truck locations participating in the SDDC 

agreement is encouraged because their government rate includes full 

liability and vehicle loss and damage insurance coverage for the traveler 

and the Government 

--- Rental companies having a negotiated agreement with SDDC 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 SDDC-negotiated 

car/truck rental agreement 

--- Government Administrative Rate Supplement (GARS). The GARS is a fee 

added on a daily basis by rental car/truck companies that are party to the 

SDDC Car Rental Agreement. GARS is a reimbursable expense as specified 

in the JFTR, para U1410-B9, Miscellaneous Expenses; and JTR, para 

C1410-B8, Miscellaneous Expenses. 

-- A renter cannot split a rental between official and personal use 

-- SDDC agreement specifies the agreement is in effect when the vehicle is rented 

and operated on official business 

-- Therefore, it violates SDDC Agreement to rent for official and personal 

purposes 

--- Vehicles obtained pursuant to the SDDC Agreement may only be used for 

official purposes 

--- If a member would like to use a rental vehicle for personal purposes, that 

member must rent another vehicle at his/her own expense 
450 – The Military Commander and the Law 

SDDC RENTAL VEHICLES AGREEMENT

− Major rental car companies subscribe to a Memorandum of Understanding (MOU) 

with SDDC. 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 Car Rental Agreement 

(effective 1 October 2002) are published on the SDDC web site: 

https://www.sddc.army.mil/sddc/CONTENT/Pub/660/participatinglisting.pdf

− Travel orders must reflect that a rental vehicle is authorized 

− Agreement is not valid when using an IMPAC card 

− 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 SDDC Agreement, it might relieve the renter of 

personal liability if another driver uses the vehicle on other than official 

business 

-- 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. 

− SDDC car rental agreement available at 

http://www.sddc.army.mil/sddc/CONTENT/Pub/656/rentalcaragreement.pdf 

-- Applies to cars and mini-vans 

− SDDC truck rental agreement available at 

http://www.sddc.army.mil/sddc/CONTENT/Pub/899/truckagree.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 SDDC Web page: 

http://www.sddc.army.mil/sddc/CONTENT/Pub/897/truckdodapproved.pdf 

-- Driver must be 21 years old 

-- Unlike cars, if a driver rents a different truck than one with SDDC rate, SDDC 

Agreement does not apply 
The Air Force Claims Program - 451 

-- May apply to Do-It-Yourself (DITY) moves, but coverage under the Agreement 

does not extend to spouse driving vehicle, nor to detour, i.e. driving out of the 

way to see parents. Some states do not consider 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 SDDC Agreement 

− Rented on orders not under SDDC Agreement 

− Personal rental vehicle on official TDY 

− Rented pursuant to umbrella contract 

− Claims personnel DO NOT pay claims for damage to rental vehicles. Follow 

guidance below for each situation. 

RENTED ON ORDERS PURSUANT TO SDDC AGREEMENT

− The rental company assumes and bears the entire risk of loss of or damage to the 

rented vehicles (including costs of towing, administrative costs, loss of use, and 

replacements), from any and every cause whatsoever, including, casualty, collision, 

fire, upset, malicious mischief, vandalism, tire damage, falling objects, overhead 

damage, glass breakage, strike, civil commotion, theft and mysterious 

disappearance, except where the loss or damage is caused by one or more of the 

following 

-- The vehicle is obtained through fraud or misrepresentation, or the damage or 

loss is caused intentionally by an authorized driver 

-- Operation of the vehicle by a driver who is under the influence of intoxicants or 

any prohibited drugs 

-- Use of the vehicle for any illegal purpose 

-- Use of the vehicle in pushing or towing another vehicle 

-- Use of the vehicle to carry passengers or property for hire 

-- Operation of the vehicle in live artillery fire exercises, or used in training for 

tactical maneuvers 
452 – The Military Commander and the Law 

-- Operation of the vehicle in a test, race or contest 

-- Operation of the vehicle by a person other than an authorized driver 

--- Example: A unit sends 5 people TDY and authorizes 1 rental car. One 

member rents the vehicle and charges the rental on the member’s 

government travel card (not IMPAC card). Any of the 5 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 

-- Operation across international boundaries unless specifically authorized at the 

time of rental 

-- Theft of the rented vehicle and the renter cannot produce the vehicle keys, 

unless the renter can show the keys were stolen through theft or robbery 

-- Operation of the vehicle off paved, graded, state or professionally maintained 

roads, or driveways, except when the Company has agreed to this in writing 

beforehand 

-- 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. So long as the driver was in the scope of 

employment, the Government will defend the driver. Within the U.S., the 

exclusive remedy is against the Government--the driver cannot be held 

personally liable. 28 U.S.C. § 2679. 

RENTED ON ORDERS, NOT UNDER THE SDDC 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 Visa Assistance Center immediately (NLT 20 

days) at 1-800-VISA-911 (on reverse of card) 

-- 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 

-- Does not apply if the vehicle is rented for more than 31 days; if used off-road; 

if driver is DUI; if damage results from hail, lightning, flood or other weather-
The Air Force Claims Program - 453 

related causes; or if damage is from failure to protect the car, i.e. 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, para U3415.C2b (for 

military members) and JTR, para C2102.D.2 (for DoD civilians) 

--- DFAS can also pay rental company directly 

--- Travel claim comes to the legal office for review 

− For damage to another vehicle, property, or personal injury, claims office 

adjudicates. So long as the driver was in the scope of employment, the United 

States will defend the driver. Within the U.S., the driver cannot be held personally 

liable. 

PERSONAL RENTAL VEHICLE ON OFFICIAL TDY 

− Damage to rental vehicle: driver is usually personally responsible 

− Damage to another vehicle, property, or personal injury: if driver is in the scope of 

employment, the United States will defend the driver. Within the United States, the 

driver cannot be held personally liable. 

RENTED PURSUANT TO CONTRACT

− SDDC Agreement not applicable unless made a part of the contract 

− Will be subject to specific contractual provisions under Federal Acquisition 

Regulations (FAR 52.228-8; clause is required within the United States); generally, 

United States liable for any damages to rental vehicle except fair wear and tear 

− Along with typical contracts for fleet rentals, rental with an IMPAC card 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 personal charge card, a report of survey may be 

required for damage to a vehicle rented under a government contract. See AFMAN 

23-220. 
454 – The Military Commander and the Law 

− For damages to another vehicle or property, claims office adjudicates as a tort 

claim. Again, so long as the driver is in the scope of employment, the Government 

will defend the driver. Within the United States, the driver cannot be held 

personally liable. 

IF THERE IS AN ACCIDENT

− Call the rental company and report. If rented on a government VISA card, call 

VISA and report immediately (1-800-VISA-911 in the United States, collect 410-

581-9994 outside the United States; numbers on reverse of card) 

− 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 

REFERENCES: 

28 U.S.C. § 2679 

Joint Federal Travel Regulations, Volume 1, Chapter 3, para U3415, Special 

Conveyance Use (available at 

https://secureapp2.hqda.pentagon.mil/perdiem/jftr(ch1-ch10).pdf) 

Joint Travel Regulation, Volume 2, Chapter 2, para C2102, Special Conveyance Use

(available at https://secureapp2.hqda.pentagon.mil/perdiem/jtr(ch1-16).pdf) 

Federal Acquisition Regulation (FAR) § 28.312, Contract clause for insurance of 

leased motor vehicles; § 52.228-8, Liability and Insurance--Leased Motor 

Vehicles

Defense Transportation Regulation (DTR) DoD Regulation 4500.9-R-Part I, Passenger 

Movement (June 2005) 

AFMAN 23-220, Reports of Survey for Air Force Property (1 July 1996) 

AFI 51-501, Tort Claims (15 December 2005) 

Surface and Deployment Distribution Command, http://www.sddc.army.mil/
Contracting Issues for the Commander - 455 

CHAPTER THIRTEEN: 

CONTRACTING ISSUES FOR 

THE COMMANDER 

Procurement Integrity ................................................................................................456 

Minor Military Construction Funding .......................................................................459 

Unauthorized Procurement ........................................................................................462 

Outsourcing and Privatization ...................................................................................464 

Bankruptcy: Government Contractors......................................................................467 

Contractor Personnel Authorized to Accompany the U.S. Armed Forces................469 
456 – The Military Commander and the Law 

PROCUREMENT INTEGRITY

The current Procurement Integrity Act is found in the National Defense Authorization 

Act for Fiscal Year 1996 and at 41 U.S.C. § 423 (implemented at FAR 3.104). The 

Procurement Integrity Act and its amendments regulate the conduct of federal 

employees who are involved in procurements and the administration of contracts. 

− Employees involved in procurements over $100,000 must report contacts with 

bidders or offerors regarding future employment to their supervisors and ethics 

counselors, and must disqualify themselves from further participation if they do not 

immediately reject the contact 

-- When a contact is made, two actions must be taken: prompt reporting of the 

contact in writing and either rejection of the offer or disqualification from 

participation 

-- For purposes of the Procurement Integrity provisions, “contact” does not occur 

if the employee is not "seeking employment." For example, requesting a job 

application is not considered "seeking employment." However, if the employee 

then submits the application, he or she must then report the contact and 

disqualify him or herself from further participation. 

-- Employees do not have to report contacts with sole source contractors under 

The Procurement Integrity Act because reports are required only if employees 

are personally and substantially involved in competitive procurements 

--- They may nevertheless be disqualified from any further participation. 

Under the Joint Ethics Regulation (JER), employees must submit a written 

notice of disqualification. 

--- Furthermore, employees are advised to inform their supervisor and seek the 

guidance of their ethics counselor as soon as possible 

− In procurements conducted under OMB Circular A-76, the Federal Acquisition 

Regulation requires a clause in the solicitation and the contract that gives 

government employees who are adversely affected by the award of the contract a 

right of first refusal for employment under the contract 

− If a civilian employee or military service member is ordered to perform duties 

consistent with his or her position, such as perform the duties of Source Selection 

Authority, and that individual takes actions that require disqualification from those 

duties, that individual may be subject to administrative action 
Contracting Issues for the Commander - 457 

-- Actions taken by an employee that result in disqualification may be construed 

as a refusal to perform assigned duties. This could result in disciplinary or 

adverse action. 

-- For example, if a contracting officer has special expertise that results in 

working almost exclusively on the contracts of a certain contractor or on 

contracts in a certain specialized area, and that individual is disqualified from 

acting with regard to that contractor or to contractors in the specialized area, he 

or she may be disciplined 

− Certain employees (e.g., program managers) who are involved in procurements or 

the administration of contracts, either of which is valued at $10 million or greater, 

are prohibited from working for the contractor for a period of one year following 

their involvement 

-- This compensation ban extends only to the prime contractor. That is, a former 

official is not prohibited from accepting compensation "from any division or 

affiliate of a contractor that does not produce the same or similar products or 

services as the entity of the contractor that is responsible for the contract.” 

--- For example, after leaving DoD, a former program manager of ABC 

program may work for a subcontractor on the ABC program, even though 

he or she dealt with the subcontractor in the role of program manager 

--- However, if a subcontract is a sham or a vehicle established to provide 

services by individuals for the prime contractor on the ABC program, 

compensation would be considered "indirect compensation" from the prime, 

which is restricted by regulation 

− The Procurement Integrity Act also prohibits 

-- Disclosure of contractor bid or proposal information and source selection 

information 

-- Individuals from knowingly obtaining contractor bid or proposal information or 

source selection information 

− Government personnel may request an advisory opinion from their ethics counselor 

and/or the staff judge advocate as to whether specific conduct would violate the 

JER or The Procurement Integrity Act, or regarding their status as a procurement 

official. One who relies in good faith on such an opinion cannot be found to have 

knowingly violated the applicable restriction. Procurement personnel should obtain 

advisory opinions. 

− WARNING: This is an extremely complex and constantly changing area of the 

law, and you should contact your local ethics counselor if you have any questions! 
458 – The Military Commander and the Law 

REFERENCES: 

Procurement Integrity Act, 41 U.S.C. § 423, Restrictions on disclosing and obtaining 

contractor bid or proposal information or source selection information 

DoD 5500.7-R, Joint Ethics Regulation (30 August 1993) (C6, 23 March 2006) 
Contracting Issues for the Commander - 459 

MINOR MILITARY CONSTRUCTION FUNDING

The installation commander, assisted by the base civil engineer, is responsible and 

accountable to ensure all work accomplished for the Air Force on Air Force 

owned/controlled real property is properly authorized and funded in accordance with 

all laws, policies, and regulations. The term "construction" is a term of art when it 

comes to funding. The lay definition of construction would include most any work on a 

physical structure, in one or multiple phases. However, the definition of "construction" 

for funding purposes is more restrictive and often more difficult to determine.

CONSTRUCTION FUNDING

– "Specified" Military Construction Appropriation (MILCON) 

-- Applies to any project that exceeds $750,000 

-- Congressional line-item authorization required 

– "Unspecified" Minor Military Construction Appropriation (UMC) 

-- Available for any project with a cost between $750,000 and $1.5 million 

(between $1.5 million and $3 million IF intended solely to correct life, health, 

or safety deficiencies) 

-- Requirements should be unforeseen and so urgent it cannot wait for the next 

MILCON program submittal. 

-- Includes constructing, erecting, or installing a new facility or system; work that 

expands the current size of an existing building by constructing additional 

functional space (e.g., by constructing a building addition or adding an 

additional level); converting a building from one primary function to another; 

and repair-type work that exceeds 70 percent of a building's replacement cost 

-- Combining UMC funds with other fund types to accomplish a single 

requirement is prohibited 

-- Each military department receives an appropriation for minor construction 

-- The Secretary of the Air Force controls expenditure of these funds 

--- MAJCOMs submit project requests under the UMC authority to HQ 

USAF/ILEC using a DD Form 1391 

--- HQ USAF/ILEC validates UMC projects and submits validated projects to 

SAF/IEI for approval 
460 – The Military Commander and the Law 

--- SAF/IEI (together with the OSD Comptroller) approves the projects and 

notifies the House and Senate Armed Services and Appropriations 

Committees of the intent to accomplish the project. 

 

--- Congress must object within 30 days or work begins 

– "Unspecified" Minor Military Construction, using Operation and Maintenance 

Appropriation (O&M) 

-- Congress permits the use of O&M funds for unspecified minor construction up 

to $750,000 per project ($1.5 million IF intended solely to correct life, health, 

or safety deficiencies). Projects solely to correct existing force protection 

deficiencies are considered in the life/health/safety category. 

-- Expenditure of these funds is controlled by the MAJCOMs (unless approval 

authority is delegated to the installation commander) 

-- With limited exceptions, these funds may not be used to finance projects related 

to exercises outside the United States that are coordinated or directed by the 

Joint Chiefs of Staff 

FUNDING PITFALLS 

– Projects may not be split into separate segments (commonly called "project 

splitting") to avoid funding limitations. For instance, it is improper to split a 

proposed $800,000 building into two $400,000 projects funded with O&M funds to 

avoid the $750,000 limitation. 

– Projects may not be completed in phases (commonly called "phasing") in order to 

avoid funding limits. For instance, it is improper to build a project for $450,000 in 

one fiscal year and another project for $350,000 in the next FY, resulting in an 

$800,000 building, in order to avoid the $750,000 O&M limit. 

– Defining exactly what is a "project" can be difficult. A project is generally all work 

necessary, including land acquisition, excavation, building, installation of 

equipment, landscaping, etc., to produce a complete and useable facility. It can 

also include work on an existing facility, including an extension, addition, 

expansion, alteration, or conversion, or the replacement of an existing facility 

damaged beyond economical repair. 

– For funding purposes, "maintenance" and "repair" are NOT considered 

construction; therefore, the $750,000 limit on the use of O&M funds is not 

applicable. The only limitation is the dollar amount the installation has available in 

its O&M account. 
Contracting Issues for the Commander - 461 

-- Maintenance is defined as recurrent work necessary to preserve or maintain a 

facility so it can be used for its designated purpose. In other words, recurrent 

work necessary to prevent deterioration. 

-- Repair means to restore a real property facility, system, or component to such a 

condition that it may effectively be used for its designated purpose 

– Only funded costs count toward the dollar limitations. Funded costs include such 

things as materials, supplies, labor, lodging (TDY), and the maintenance and 

operation of government-owned equipment. Unfunded costs generally include 

military salaries (if military labor is used), planning and design costs, depreciation 

of government-owned equipment, and items received on a nonreimbursable basis as 

excess distribution from another department or agency. While unfunded costs do 

not count toward the funding limitation, they must still be calculated and reported. 

REFERENCES: 

DoD 7000.14-R, DoD Financial Management Regulations (FMRS), Volume 2B, 

Budget Formulation and Presentation, Chapter 8 (June 2000) 

AFI 32-1021, Planning and Programming of Military Construction (MILCON) 

Projects (24 January 2003) 

AFI 32-1032, Planning and Programming Appropriated Funded Maintenance, Repair, 

and Construction Projects (15 October 2003) 
462 – The Military Commander and the Law 

UNAUTHORIZED PROCUREMENT

Commanders are routinely faced with the need to acquire supplies, services, and 

construction necessary for the operation of the installation or squadron. Often it is 

necessary to turn to the private sector to furnish these supplies, services, and 

construction. Commanders must understand that only those persons who possess 

specific contracting authority may make such purchases. 

PROCUREMENT AUTHORITY

– Authority to bind the government to a contract or an obligation to pay a debt is 

limited to individuals that have been granted express authorization to do so 

– The head of each federal agency is authorized to enter into contracts on behalf of 

the agency 

– Contracting authority may be delegated, and in most instances it is a contracting 

officer (CO) that is responsible for entering into government contracts. Each CO 

has a "Certificate of Appointment," often called a warrant, which states the 

limitations on the CO's contracting authority. In most cases, the limitation is based 

on a set dollar value (e.g., authority to bind the government up to a limit of 

$500,000). 

– On occasion, an individual without authority will enter into a commitment 

expecting the government to assume responsibility for the financial obligation. 

Rarely are such unauthorized commitments the product of a deliberate attempt to 

circumvent the procurement system. Rather, it is usually a matter of not fully 

understanding the procurement procedures, coupled with an honest effort to satisfy 

a legitimate requirement. An individual who makes an unauthorized commitment 

is subject to disciplinary action. 

RATIFICATION OF UNAUTHORIZED COMMITMENTS

– The Federal Acquisition Regulation (FAR) has a procedure for the ratification of an 

unauthorized commitment. Ratification means the act of approving an 

unauthorized commitment by an official who has the authority to do so. However, 

the FAR also requires agencies to take positive action to preclude the need for 

ratification actions. Additionally, depending on various factors, including the 

amount of money involved, the approval authority may be at a high level. In 

general, an unauthorized commitment must meet the following criteria to be 

eligible for ratification. 
Contracting Issues for the Commander - 463 

--- Supplies or services have been provided to and accepted by the government, 

or the government otherwise has obtained or will obtain a benefit resulting 

from performance of the unauthorized 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, upon reviewing the unauthorized commitment, determines the 

prices to be fair and reasonable 

--- The CO recommends payment and legal counsel concurs 

--- Funds are available and were available at the time the unauthorized 

commitment was made 

--- The ratification is in accordance with any limitations prescribed under 

agency procedures 

– Commanders have a responsibility to ensure their personnel are informed of proper 

contracting authority 

– Bottom line: ratification procedures exist as a possible avenue to minimize the 

impact of an unauthorized commitment, but they should not be viewed as a 

substitute for compliance with proper procurement practices 

REFERENCE:

Federal Acquisition Regulation (FAR), Subpart 1.6 
464 – The Military Commander and the Law 

OUTSOURCING AND PRIVATIZATION

DEFINITIONS

– Outsourcing: Whenever possible, and to achieve greater efficiency and 

productivity, the federal government should conduct cost comparison studies to 

determine who can best perform the work (public/private). The government will 

not start, or maintain, a commercial product or service that the private sector can 

provide more economically. 

– Privatization: The transfer of ownership of functions, business assets, or both from 

the public to the private sector. Services will be provided by the private sector. 

THREE DEGREES OF PRIVATIZATION

– Competitive outsourcing governed by OMB Circular A-76 

-- Competitions are held between public agencies and the private commercial 

sectors. 

-- The three types of managed competitions under the policy are 

--- Public-public 

--- Public-private, and 

--- Private-private. 

-- Federal agencies are not required to use the OMB Circular A-76 policy; 

however, federal executive agencies are required to 

--- Develop a performance work statement, defining the technical aspects of 

the work to be performed 

--- Determine the most efficient organizational structure using the current 

government workforce (called the “Most Efficient Organization, or MEO) 

through realignment/reexamination of the management structure, personnel 

requirements and procedures; and, when such a comparison is required

--- Conduct cost comparison studies among all sectors, including private, other 

public agencies, and the current government MEO

-- The procedures are fairly complex and commanders should work closely with 

the legal office during the process 
Contracting Issues for the Commander - 465 

– Housing privatization governed by 10 U.S.C. §§ 2871-2884 

-- Sec 2872: Acquisition or construction of family housing units and 

unaccompanied housing units by private persons 

--- On or near military installations 

--- May or may not involve the transfer of Air Force owned property and 

waiving the usual government property disposal process 

-- May enter into contracts for the lease of housing units that the Secretary of the 

Air Force determines are suitable for use as military family housing or military 

unaccompanied housing 

-- Units, whether built or leased, must be generally comparable to the room 

patterns and floor areas of similar housing units in the locality concerned 

-- Construction of “housing” may include ancillary facilities that support housing 

-- Market incentives 

---- Under sections 2873 and 2875, the services may offer 

---- Loan guarantees up to, the lesser of, 80% of the project value or the 

outstanding principal of a loan 

---- Loans directly to a contractor up to the limit of budget authority 

---- Equity investment in the enterprise in the form of a limited partnership 

or corporation and/or through the purchase of stocks or bonds 

-- Military members assigned to privatized housing may be required to make 

rental payments through allotments under section 2882 

-- Differential lease payments that bring rental payments up to fair market value 

without increasing a military member’s out of pocket expenses are authorized 

under section 2877 

– Utility systems privatization governed by 10 U.S.C. § 2688. Includes equipment, 

fixtures, structures used for electricity generation; water treatment; wastewater 

treatment; natural gas delivery; steam generation; telecommunications 

-- Transfers of DoD property may convey title in fee simple or less 

-- Transfers must include the use of competitive procedures 
466 – The Military Commander and the Law 

-- Government must receive fair market value 

REFERENCES: 

10 U.S.C. § 2688 

10 U.S.C. §§ 2871-2884 

OMB Circular A-76 

OMB Circular A-76 Revised Supplemental Handbook 
Contracting Issues for the Commander - 467 

BANKRUPTCY: GOVERNMENT CONTRACTORS

The Federal Bankruptcy Code affords special protection to businesses that seek 

bankruptcy protection, including those that do business with the government 

TYPES OF CONTRACTOR BANKRUPTCY PROCEEDINGS

– There are two types of business bankruptcy proceedings 

-- Chapter 7 (Liquidation Bankruptcy), which entails the complete liquidation of 

all contractor assets and cessation of business activities 

-- Chapter 11 (Reorganization Bankruptcy), which entails a reorganization of the 

business with continued operation during the reorganization process 

– Protection against creditors begins the day the bankruptcy petition is filed. Even if 

the government is unaware of the filing, the petition acts as an automatic stay of 

potential adverse actions against the contractor. 

– Typical adverse actions (for example, termination for default, recovery of 

government-furnished equipment or materials, reprocurement, and setoffs) cannot 

be initiated or continued without the express permission of the bankruptcy court 

– Some actions not affected by bankruptcy include criminal actions, issuance of a 

show cause or cure letter (tailored to avoid violation of the bankruptcy law), 

conducting an inventory or audit to identify government property, issuance of a 

final decision of a contractor's claim, or coordinating a proposed termination letter 

through Air Force channels so that it is ready to serve immediately upon removal of 

bankruptcy protections 

PROTECTING AIR FORCE INTERESTS

– Protection of Air Force interests in the bankruptcy forum is a unique challenge. It 

requires the assistance of personnel at all levels, including prompt notification of 

bankruptcy cases, and assistance in gathering facts, affidavits and documents. 

– The government’s monetary claims against the debtor’s estate are filed as a proof 

of claim with the bankruptcy court. Time limits exist, so you must coordinate with 

the legal office as soon as possible. 

– In many instances, the filing of a bankruptcy petition should be anticipated. It is 

often preceded by delinquency, failure to pay vendors or subcontractors, reduced 

production capacity, or other evidence of financial difficulty, even rumors. 
468 – The Military Commander and the Law 

– The base legal office should be notified immediately in any case where contractor 

bankruptcy is suspected or known. Early warning of anticipated bankruptcy 

maximizes protection of Air Force interests; failure to react swiftly to an actual 

filing may result in loss of important rights. 

– The Bankruptcy Code also contains protections against discrimination for 

contractors that have filed bankruptcy. A contracting officer cannot discriminate 

against a contractor in the award of a contract or an option solely because it has 

declared bankruptcy. 

– The appropriate way to analyze a contractor's eligibility for award is through a 

responsibility determination or another nonbankruptcy basis for analysis. While a 

contractor may not be found ineligible for award merely because it is involved in 

bankruptcy proceedings, financial capability is always a factor to be considered in 

evaluating a bidder's responsibility. 

– Protection against contractor bankruptcy often requires close cooperation with the 

Air Force Legal Operations Agency, Commercial Litigation Division 

(AFLOA/JACN) and the U.S. Attorney's Office. The base legal office provides the 

necessary liaison between the installation and the other offices charged with 

protecting the government's interests. 

REFERENCES: 

11 U.S.C. § 101, Definitions 

11 U.S.C. § 362, Automatic Stay

11 U.S.C. § 525, Protection against Discriminatory Treatment

11 U.S.C. Chapter 7, Liquidation Bankruptcy

11 U.S.C. Chapter 11, Reorganization Bankruptcy

Federal Acquisition Regulation, Subpart 42.9, Bankruptcy 
Contracting Issues for the Commander - 469 

CONTRACTOR PERSONNEL AUTHORIZED 

TO ACCOMPANY THE U.S. ARMED FORCES 

In increasing numbers, contractors support military forces overseas. Commanders 

must understand the basic rules and policies regarding contractor personnel overseas. 

The following information applies to Department of Defense contingency contractor 

personnel. 

DEFINITIONS

− Contingency contractor personnel: includes defense contractors and their 

employees. It also includes their subcontractors at all tiers under DoD contracts, 

including third country national and host nation personnel, who are authorized to 

accompany the U.S. Armed Forces under such contracts. 

− Contractors Deploying with the Force (CDF): a sub-category of contingency 

contractor personnel. CDF 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. 

TYPES OF CONTRACTS

− External Support: awarded by a supporting headquarters outside the contingency 

operation area that provide support for deployed operational forces 

-- Usually prearranged, but may be awarded or modified during the mission based 

on the commanders’ needs

-- Examples include the Army Logistics Civil Augmentation Program, the Air 

Force Contract Augmentation Program, the Navy Construction Capabilities 

Contract, Civil Reserve Air Fleet contracts, and war reserve materiel contracts

− Systems Support: awarded outside the contingency operation area to support 

deployed operational forces. They provide essential support to specific systems 

throughout the system’s life cycle. 

− Theater Support: awarded within the contingency operation area to support 

deployed operational forces. Theater support contracts provide goods, services, 

and minor construction, usually from the local vendor base, to meet the immediate 

needs of operational commanders. 
470 – The Military Commander and the Law 

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 

-- 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 the 

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. 

– If captured during armed conflict, contingency contractor personnel accompanying 

the force are entitled to prisoner of war status 

APPLICABILITY OF LAWS

– 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 under 

-- Military Extraterritorial Jurisdiction Act (MEJA), 18 U.S.C. 3261, which 

extends U.S. Federal criminal jurisdiction to certain DoD contingency 

contractor personnel, for certain offenses committed outside U.S. territory 

-- War Crimes Act, 18 U.S.C. 2441, which extends federal criminal jurisdiction to 

conduct that is determined to constitute a violation of the law of war when 

committed by a civilian national of the United States 

-- Uniform Code of Military Justice, which applies to contingency contractor 

personnel only when there is a formal declaration of war by Congress 

IMPORTANCE OF THE CONTRACT

– The contract is the principal legal basis for the relationship between the Department 

of Defense and the contractor 
Contracting Issues for the Commander - 471 

– The contract shall specify 

-- The terms and conditions under which the contractor is to perform 

-- The method by which the contractor will be notified of the deployment 

procedures to process contingency contractor personnel 

-- The specific support relationship between the contractor and the Department of 

Defense 

ROLES OF CONTRACTORS

– Contingency contractor personnel may not perform functions and duties that are 

inherently governmental. “Inherently governmental” is defined by the Office of 

Management and Budget as an activity that is so intimately related to the public 

interest as to mandate performance by government personnel.

– When writing contracts, planners and contracting officers must consider 

-- International agreements and host nation support agreements 

-- Applicable SOFAs and related agreements to determine their effect on the 

status and use of contractors in support of contingency operations 

ACCOUNTABILITY

– Defense contractors awarded external support contracts and systems support 

contracts are required to input employee data and maintain by-name accountability 

of contractors deploying with the force in the joint database designated in the 

contract 

– Contractors must include the general location of their employees and must keep the 

database up-to-date to reflect all contractor employees actually deployed in the 

AOR. Prime contractors are responsible for information regarding their 

subcontractors at all tiers. 

LETTER OF AUTHORIZATION

– The contracting officer will issue a Letter of Authorization to CDF, which will be 

required to process through a deployment center; to travel to, from, and within the 

AOR 

− The Letter of Authorization shall provide, at a minimum 

-- The prime contract number, 
472 – The Military Commander and the Law 

-- The sub-contract number (if applicable), 

-- An emergency contact phone number and email address of the government 

contracting officer, 

-- An emergency contact 24/7 phone number and email address of the defense 

contractor point of contact, 

-- The contact information of the sponsoring in-theater supported unit, 

-- The intended length of assignment in the AOR, and 

-- Identify government facilities, equipment, and privileges in the AOR as 

authorized by the contract 

MEDICAL ISSUES

– Defense contractors must provide medically and physically qualified contingency 

contractor personnel 

– Secretary of Defense may direct immunizations as mandatory for CDF performing 

DoD-essential contractor services 

– Defense contractor must provide its 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. 

-- All costs associated with the treatment and transportation of contingency 

contractor personnel to the selected civilian facility are reimbursable to the 

government 

-- Primary medical or dental care is not authorized unless specifically provided for 

under the terms of the contract and the corresponding Letter of Authorization. 

Primary care includes inpatient and outpatient services; non-emergency 

evacuation; pharmaceutical support; dental services and other medical support. 

INDIVIDUAL PROTECTIVE EQUIPMENT

– Generally, contractors shall be required to provide all life, mission, and 

administrative support to its employees necessary to perform the contract 

– However, the Component Commander may decide it is in the government’s 

interests to provide selected life, mission, and administrative support to some 

contingency contractor personnel. This equipment shall typically be issued before 
Contracting Issues for the Commander - 473 

deployment to the AOR at the deployment center and must be returned to the 

government, otherwise accounted for, or purchased, after use. 

UNIFORMS

– The individual contractor or contingency contractor personnel are responsible for 

providing their own personal clothing, including casual and working 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 

LEGAL ASSISTANCE

– Generally, contingency contractor personnel are not entitled to military legal 

assistance with personal legal affairs, either in theater or at the deployment center 

– The individual contractor or contingency contractor personnel are responsible for 

preparing and completing personal legal affairs (including powers of attorney, 

wills, trusts, estate plans, etc.) before reporting to deployment centers 

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 only if 
474 – The Military Commander and the Law 

-- On a case-by-case basis, 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 (HN), and international law, 

relevant SOFAs or international agreements, or other arrangements with local 

HN authorities 

– Commanders should consult with the 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 to the contingency 

contractor personnel 

-- Acceptance of weapons by contractor personnel shall be voluntary and 

permitted by the defense contractor and the contract 

-- 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. Variables such as 

the nature of the operation, the type of conflict, any applicable status agreement 

related to the presence of U.S. forces, and the nature of the activity being protected 

require case-by-case determinations. 

-- Requests shall be reviewed on a case-by-case basis by the appropriate staff 

judge advocate to the geographic Combatant Commander 

-- Contracts 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 (nondelegable). 
Contracting Issues for the Commander - 475 

REFERENCE: 

18 U.S.C. § 2441 

18 U.S.C. § 3261 

DoDI 3020.41, Contractor Personnel Authorized to Accompany the U.S. Armed Forces

(3 October2005)
476 – The Military Commander and the Law 
Ethics Issues - 477 

CHAPTER FOURTEEN: 

ETHICS ISSUES 

Standards of Ethical Conduct ....................................................................................478 

Financial Disclosure Forms.......................................................................................480 

Gifts to Superiors.......................................................................................................483 

Foreign Gifts..............................................................................................................484 

Use of Government Resources for Mementos and Gifts...........................................486 

Participation in Frequent Flyer Programs..................................................................488 

Use of Government Communications Systems.........................................................490 

Honoraria ...................................................................................................................494 

Honorary Memberships.............................................................................................495 

Off-Duty Employment...............................................................................................496 
478 – The Military Commander and the Law 

STANDARDS OF ETHICAL CONDUCT

Each commander has the responsibility of insuring that the standards of conduct 

enunciated in the Joint Ethics Regulation (JER), DoDD 5500.7-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 regulation’s provisions 

− Annual reminders of the regulation can be accomplished by requiring unit members 

to read the regulation, by posting bulletin board items, by regularly published 

literature, and at commanders' calls 

− Personnel may obtain further clarification of the standards of conduct and conflict 

of interest provisions by consulting with their servicing legal office 

− The commander must realize that the resolution of a conflict of interest should be 

accomplished immediately so that the conflict is terminated 

− 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), specifically 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, do not hesitate to consult the ethics counselor, 

normally the SJA. 

-- Soliciting contributions for gifts to an official superior, except voluntary gifts or 

contributions of nominal value on special occasions like marriage, illness, 

transfer, or retirement 
Ethics Issues - 479 

-- Active duty military or civilian personnel using their grades, titles or positions 

in connection with any commercial enterprise or for endorsing a commercial 

product 

-- 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 3-210, 

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. Squadron commanders are normally the approving 

authority for requests for off-duty employment. 

-- 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 the 

Secretary of the Air Force 

− 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 Joint Ethics Regulation 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 

− As always, if you have specific questions, the installation SJA is the standards of 

conduct/ethics counselor and can assist you 

REFERENCE: 

DoD 5500.7-R, Joint Ethics Regulation (30 August 1993) (C6, 23 March 2006) 
480 – The Military Commander and the Law 

FINANCIAL DISCLOSURE FORMS

The DoD currently uses two different financial disclosure forms, the OGE 450 and the 

SF 278. The Joint Ethics Regulation (JER) lists who must file, outlines the required 

contents in these reports, and specifies filing times. Although the JER contains sample 

forms, these forms are outdated and as with all issues involving the JER, commanders 

should contact their servicing SJA for assistance and guidance. Which form an 

individual must use depends on the rank or grade and responsibilities of that individual. 

CONFIDENTIAL FINANCIAL DISCLOSURE REPORT (OGE 450) 

− Persons required to file this form include 

-- Commanding officers, heads and deputy heads of all installations or activities. 

A person who must file a SF 278 does not file an OGE 450. Only the SF 278 is 

required from General Officers and Senior Executive employees. 

-- 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 at Appendix C 

of the JER. Several of these requirements are worth highlighting 

-- A complete report is required for each filing period if changes have occurred 

since the last submission. A short version of the OGE 450 (form 450-A) may 

be used by filers who have not had reportable changes in their financial status 

since their last report. 

-- 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 

-- No disclosure of amounts or values is required 

− This report must be filed within 30 days after assuming a covered position and 

annually thereafter 
Ethics Issues - 481 

− Although the annual report was submitted to the servicing staff judge advocate no 

later than 31 October for the preceding fiscal year, in early 2006, the Office of 

Government Ethics issued a final ruling changing the reporting schedule to a 

calendar year basis with reports due 15 February 

PUBLIC FINANCIAL DISCLOSURE REPORT (SF 278) 

− 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% 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 and Appendix C of the JER 

-- Generally, this report is far more detailed in content than the OGE 450 

-- For annual reports, a new report is required even if no changes have occurred 

since the last submission 

-- 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 

− This report must be filed within 30 days after assuming a covered position 

− Annual reports must be filed between January 1 and May 15 and cover the 

preceding calendar year 

− An individual must also file a Termination Report between 15 and 30 days after 

terminating a covered position unless, within 30 days, the individual assumes 

another covered position 

− OGE has published updated editions of the SF 278 Public Financial Disclosure 

Report. In 2000, it was updated to incorporate the category of assets over $1 

million, a continuation page for transactions listed on Schedule B, and a check-off 

box on the front of the form to indicate a filing extension. In 2005, the reporting 

threshold for gifts was raised to $305. 
482 – The Military Commander and the Law 

REFERENCES: 

DoD 5500.7-R, Joint Ethics Regulation (30 August 1993) (C6, 23 March 2006) 

http://afmcethics.wpafb.af.mil 

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

FORMS: 

SF 278: 

http://www.usoge.gov/pages/forms_pubs_otherdocs/fpo_files/forms/sf278_2004/ 

sf278_automated.pdf 

OGE 450: 

http://www.usoge.gov/pages/forms_pubs_otherdocs/fpo_files/forms/fr450fill_04.pdf 
Ethics Issues - 483 

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, the following may be given to superiors and accepted from 

subordinates: items having an aggregate market value of $10 or less per 

occasion, items such as food and refreshments, personal hospitality at a 

residence 

-- On special, infrequent occasions (marriage, birth of child, etc.) or on occasions 

that terminate the superior-subordinate relationship (retirement, separation, or 

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 DoD employee may NOT accept a gift if the market 

value of the gift exceeds $300 per donating group or organization. 

However, groups of employees are permitted to give gifts exceeding $300 

in value to superiors on special, infrequent occasions that terminate the 

superior-subordinate relationship and the gifts are appropriate for the 

occasion and are uniquely linked to the departing employee’s position or 

tour of duty, and commemorate the same. 

-- Under all circumstances, gifts must be truly voluntary

REFERENCES: 

5 C.F.R. §§ 2635.301 - 2635.304 

DoD 5500.7-R, Joint Ethics Regulation (30 August 1993) (C6, 23 March 2006) 

HQ USAF/JAG Message, JER Amendment Gifts to Superiors (10 January1997) 
484 – 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. 

− 5 U.S.C. § 7342 applies to military members, civilian employees, consultants, and 

their spouses or other dependents. This includes retired and reserve component 

members, regardless 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 $305 in retail value. “Minimal value” 

is based on the Consumer Price Index and is subject to change. 

-- The Government Services Agency (GSA) periodically adjusts the amount 

-- The value of the gift is determined by U.S. retail value 

-- 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 

-- 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. 

--- A gift recipient may purchase a gift if he or she desires by paying full retail 

value 
Ethics Issues - 485 

− For minimal value gifts accepted, the person receiving the gift should make a 

written record describing the circumstance 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 

REFERENCES: 

5 U.S.C. § 7342 

DoD 5500.7-R, Joint Ethics Regulation (30 August 1993) (C6, 23 March 2006) 

DoDD 1005.13, Gifts from Foreign Governments (19 February 2002) 

AFI 51-901, Gifts From Foreign Governments (16 February 2005) 
486 – The Military Commander and the Law 

USE OF GOVERNMENT RESOURCES 

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, 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. 

IMPERMISSIBLE USE OF FUNDS

− You can not use appropriated funds to purchase PCS or retirement mementos for 

either military or DoD civilian personnel 

− You can not use nonappropriated funds to purchase PCS mementos for either 

military or DoD civilian personnel 

− In general, you can not 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 can not use mission accomplishment recognition funding to honor PCS or 

retiring personnel. AFI 36-2803 and AFI 36-1001 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 (e.g., personnel of the quarter awards) 

− You can use appropriated funds (i.e., representation funds) to purchase 

mementos/gifts for distinguished citizens of foreign countries, and certain U.S. 

citizens who are not DoD employees 
Ethics Issues - 487 

REFERENCES: 

DoDD 7250.13, Official Representation Funds (ORFs) (17 February 2004) (C1, 12 

January 2005) 

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 Awards and Decorations Program (15 June 2001) 

AFI 65-603, Official Representation Funds Guidance and Procedures (17 February 

2004) 
488 – The Military Commander and the Law 

PARTICIPATION IN FREQUENT FLYER PROGRAMS

Chapter 4 of the Joint Ethics Regulation (JER) contains the key rules associated with 

travel benefits. This chapter of the JER discusses Frequent Flyer Programs (FFPs) and 

what can be done with accumulated "bonus" mileage and other benefits received from 

official travel. Long-standing travel policy (now changed) dictated that military 

members and Federal government employees were obligated to turn over to the 

government any gift, gratuity or benefit received while performing official travel. 

− With few exceptions, the old rules barred the personal use of benefits offered as 

part of a frequent flyer club, or similar incentive program, that offered upgrades, 

travel perks and free trips based upon an accumulation of frequent flyer mileage 

with a particular airline 

− The law supporting this policy was substantially changed by the FY02 DoD 

Authorization Act, signed into law on 28 Dec 2001 

− Under the new law, Federal employees (including military members) and their 

families who receive a promotional item as a result of traveling at government 

expense, or while traveling in furtherance of government business at the expense of 

a non-Federal entity under 31 U.S.C. § 1353, may keep the item for personal use if 

the item 

--- Is available to the public under the same terms; and 

--- Can be accepted at no additional cost to the government 

− The term "promotional item" includes, among other things, frequent flyer miles, 

travel upgrades and access to carrier clubs or facilities 

− The new policy applies to promotional items received before, on, or after the date 

of the enactment of the Act (28 Dec 2001) 

− The new rules were implemented in the Joint Federal Travel Regulation (JFTR) 

(for military members) and Joint Travel Regulation (JTR) (for civilian employees) 

on 31 Dec 2001 

− Therefore, personnel may now accumulate and use official travel mileage and 

benefits for personal use 

− Travelers should be reminded of two related considerations 

-- First, they may not be reimbursed twice for the same travel expenses 
Ethics Issues - 489 

-- For example, a government traveler may accept reimbursement for lost luggage 

from the offending airline, but then may not then file a claim against the 

government for the loss since the traveler has already been made whole by the 

carrier 

-- Similarly, a traveler who accepts payments from an airline for voluntarily 

relinquishing a seat may keep those payments, but may not seek additional 

reimbursement from the government for expenses incurred by the resulting 

delay, i.e., per diem, lodging, miscellaneous expenses 

-- Member must take regular leave if delay would cause member not to arrive at 

his appointed place of duty on time 

-- Voluntary bumping may not be done if it will interfere with the TDY mission 

− A traveler who is involuntarily bumped from a seat is considered to be "awaiting 

transportation" for per diem and miscellaneous expense reimbursement; therefore, 

any monetary compensation from the airline (including meal and/or lodging 

vouchers) for the denied seat belongs to the government 

-- Member must turn in all such items with his TDY voucher on return 

-- Second, government travelers are still required to use the Government travel 

card to cover the expenses incurred while traveling on official orders 

-- Thus, a traveler who has a personal credit card that would generate more 

desirable travel benefits in conjunction with an official trip cannot decide to use 

his or her personal credit card in lieu of the Government travel card 

-- Air Force will pay additional costs and per diem associated with the delay 

caused by involuntary bumping 

REFERENCES: 

31 U.S.C. § 1353 

DoD 5500.7-R, Joint Ethics Regulation (30 August 1993) (C6, 23 March 2006) 

Joint Federal Travel Regulations (1 December 2004) 

Joint Travel Regulations (1 February 2005) 

59 Comp. Gen. 203 (1980) 
490 – 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, the Internet, and 

electronic mail. Under the Joint Ethics Regulation (JER) the use of government 

resources, communications systems and equipment, including telephones, data fax 

machines, electronic mail, and the Internet, are for official and authorized use only. 

− All usage, official and personal, is subject to being monitored, and no classified 

information may be communicated over unclassified lines 

− Official use may include morale and welfare communications for deployed 

personnel, when approved by the theater commander 

− Authorized use is permitted when "agency designees" (the first supervisor who is a 

commissioned officer or a civilian above GS/GM-11 in the chain of command or 

supervision of the employee concerned) authorizes their employees to make limited 

personal use of government resources (other than personnel). The agency designee 

must determine the following 

-- There is no adverse effect on duty performance 

-- The duration and frequency are reasonable and, normally, the use is during 

nonduty hours (which may include break time) 

-- A public interest is being served such as keeping employees at their work 

stations, educating them on the use of new technology, improving their morale, 

or enhancing their technical or professional skills 

-- There is no adverse reflection on the U.S. Government (no pornography, chain 

letters, commercial advertising, criminal activities such as gambling, or 

breaches of security) 

-- There is no overburdening of the communications system 

-- There is no significant additional cost to DoD 

− This instruction applies to all uses of Air Force e-mail systems by Air Force 

organizations, personnel, and contractors regardless of the classification of the 

information transmitted or received 

− It is a punitive regulation, violations of which are punishable under Article 92, 

UCMJ. 
Ethics Issues - 491 

-- Specific prohibitions

--- Any use of government-provided computer hardware or software for other 

than official and authorized government business 

--- Activities for personal or commercial financial gain. This includes, but is 

not limited to chain letters, stock trading, commercial solicitation, and sales 

of personal property, except on authorized bulletin boards established for 

such use. 

--- Storing, processing, displaying, sending, or otherwise transmitting offensive 

or obscene language or material. Offensive material includes, but is not 

limited to, "hate literature," such as racist literature, materials or symbols 

(e.g., swastikas, neo-Nazi materials), and sexually harassing materials. 

Obscene material includes, but is not limited to, pornography and other 

sexually explicit materials. 

--- Storing or processing classified information 

--- Storing or processing copyrighted material, including cartoons unless 

approval is obtained from the author or publisher or the use falls within 

some other exception to the copyright laws such as educational purposes 

--- Participating in chat lines unless for official purposes and approved by 

Public Affairs 

--- Obtaining, installing, copying, storing, or using software in violation of the 

appropriate vendor’s licensing agreement 

--- Permitting any unauthorized individual access to a government-owned or 

government-operated system 

− To protect against downloading viruses from the Internet and introducing potential 

risk to the Air Force networks, take the following precautions 

-- Check all files downloaded from the net for viruses, and get authorization to 

load any software on an Air Force automated information system 

-- Official use includes communications, including emergency communications, 

the Air Force has determined necessary in the interest of the Federal 

government. Official use includes, when approved by the theater commander 

in the interest of morale and welfare, those communications by military 

members and other Air Force employees who are deployed for extended 

periods away from home on official business. 
492 – The Military Commander and the Law 

-- The agency designee (see definition above) can allow limited personal use of email 

--- Brief communications made while traveling on official business to notify 

family members of official transportation or schedule changes 

--- Using government systems to exchange important and time-sensitive 

information with a spouse or other family members, 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, e.g., use of 

communication systems, work-related application training 

--- Improving the morale of employees stationed away from home for extended 

periods 

--- Job searching in response to federal government downsizing 

--- Authorized use must be approved by supervisor and should be checked 

against local or command policy 

-- Prohibited use includes 

--- Distributing copyrighted materials by e-mail or e-mail attachments without 

consent from the copyright owner. Failure to obtain consent may violate 

federal copyright infringement laws and could subject the individual to civil 

liability or criminal prosecution. 

--- Intentionally or unlawfully misrepresenting your identity or affiliation in email communications 

--- Sending or receiving e-mail for commercial or personal financial gain using 

government systems 

--- Sending harassing, intimidating, abusive, or offensive material to, or about 

others 

--- Using someone else’s identity (user ID) and password without proper 

authority 

--- Causing congestion on the network by such things as the propagation of 

chain letters, broadcasting inappropriate messages to groups or individuals, 

or excessive use of the data storage space on the E-mail host server 
Ethics Issues - 493 

REFERENCES: 

DoD 5500.7-R, Joint Ethics Regulation (30 August 1993) (C6, 23 March 2006) 

AFI 33-114, Software Management (13 May 2004) 

AFI 33-119, Electronic Mail (E-Mail) Management and Use (24 January 2005) 

AFI 33-129, Transmission of Information via the Internet (3 February 2005) 
494 – The Military Commander and the Law 

HONORARIA

Military members 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 

− Prior to 1996, military members were generally prohibited from accepting any 

honorarium on any topic, even if there was no connection between the subject of 

the appearance, or article, and the individual’s official duty 

− However, pursuant to a Department of Justice opinion dated 26 February 1996, that 

prohibition is no longer enforced against any government employee, military or 

civilian. Military members 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. 

− Travel reimbursement for an appearance, speech or article related to official duties 

may be accepted, but a speaker’s fee or other direct compensation may not be 

accepted 

− Questions concerning the acceptance of an honorarium, should be addressed to 

your ethics counselor or the staff judge advocate 

REFERENCES: 

5 C.F.R. § 2635.807 (a)(2)(iii)(D) 

DoD 5500.7-R, Joint Ethics Regulation (30 August 1993) (C6, 23 March 2006) 

Wolfe v. Barnhart, 446 F.3d 1096 (10th Cir. 2006).
Ethics Issues - 495 

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 the individual's 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. 

-- Now, 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 rank or position 

− 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 local SJA 

REFERENCE: 

18 U.S.C. § 209 

DoD 5500.7-R, Joint Ethics Regulation (30 August 1993) (C6, 23 March 2006) 
496 – 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) 

− Personnel should obtain approval from their commander prior to engaging in 

outside employment. Although the Air Force does not require an individual to 

complete 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 ethics counselor. 

− 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 SecAF approval 

-- 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 

REFERENCES: 

5 C.F.R. § 2635, subpart H 

DoD 5500.7-R, Joint Ethics Regulation (30 August 1993) (C6, 23 March 2006) 

Wolfe v. Barnhart, 446 F.3d 1096 (10th Cir. 2006)
Civilian Personnel and Federal Labor Law - 497 

CHAPTER FIFTEEN: 

CIVILIAN PERSONNELAND FEDERAL

LABOR LAW 

Overview of the Civilian Personnel System..............................................................498 

Union Relations

Overview of Federal Labor-Management Relations ...........................................502 

Collective Bargaining ..........................................................................................508 

Employee Discipline

Air Force Civilian Drug Testing Program...........................................................512 

Civilian Employee Workplace Searches .............................................................517 

Unacceptable Performance By Civilian Employees............................................519 

Civilian Employee Discipline..............................................................................526 

Civilian Employee Interrogation .........................................................................531 

Employee Protections and Benefits

Equal Employment Opportunity (EEO) Complaint Process...............................534 

Whistleblower Protection Act..............................................................................540 

Family & Medical Leave Act ..............................................................................543 

Unemployment Compensation ............................................................................546 

Base Closure Civilian Personnel Issues...............................................................549 
498 – 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 and 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 in 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 competing for jobs by OPM 

regulations 

-- Senior Executive Service (SES) 

--- Reserved for civil servants above GS-15 

--- Considered general officer equivalents 

-- Probationary Employees 

-- Hybrid military/civilian position 

--- National Guard Technicians 

--- Air Reserve Technicians 

-- Non-Appropriated Fund employees 

PAY SYSTEMS

− Appropriated Fund Employees

-- General Schedule (GS) 

--- GS-1 through GS-18 
Civilian Personnel and Federal Labor Law - 499 

--- Statutory; same pay scale nationwide 

--- 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 

− Non-Appropriated Fund (NAF) Employees

-- Morale, Welfare and Recreation employees 

-- Pay rates determined by management and may be negotiable with unions 

ADMINISTRATIVE AND ADJUDICATIVE BODIES

− Merit Systems Protection Board (MSPB) 

-- Adjudicates cases brought by the Office of Special Counsel, such as 

whistleblower claims and allegations of mismanagement 

-- Hears appeals by certain civilian employees of agency actions in misconduct or 

performance cases where the employee was disciplined by reduction in grade, 

removal, suspension for more than 14 days or furlough for 30 days or less for 

misconduct 

-- MSPB has the full authority to mitigate or completely reverse agency adverse 

actions, but not performance based actions 

-- Hears appeals concerning reduction-in-force (RIF) 

− Equal Employment Opportunity Commission (EEOC) 

-- Adjudicates claims of unlawful discrimination based on race religion, national 

origin, sex, color, disability, age and reprisal 
500 – The Military Commander and the Law 

-- If illegal discrimination is found, it may order back pay, retroactive personnel 

actions, expungement or 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. 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 and violations of the Hatch Act. 

LITIGATION RESPONSIBILITIES

− Administrative litigation (FLRA, MSPB, EEO, unemployment compensation, etc.) 

-- Installation SJA 

--- Provides legal reviews and advice to commanders, CCPO, and EEO 

officials concerning all labor and employment law issues 

--- Provides management representation in MSPB hearings, arbitration, EEO 

cases, unemployment compensation hearings, and other cases 

--- Requests assistance from AFLOA/CLLO 

-- Central Labor Law Office (CLLO) 
Civilian Personnel and Federal Labor Law - 501 

--- Provides representation before FLRA in ULP and representation cases 

(unless specifically delegated to installation) 

--- Handles ALL class complaints of discrimination before EEOC 

--- Provides representation in other cases at any level on an available basis 

--- Provides legal advice, assistance, and training to judge advocates and 

civilian attorneys and to personnel experts 

− 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, para 1.2. 

-- AFLOA or HQ USAF/JAI, on behalf of 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 

REFERENCES: 

5 U.S.C. §§ 5101-5115, Classification 

5 U.S.C. §§ 1201-1204 (MSPB) 

5 U.S.C. § 7101, et seq, Federal Service Labor-Management Relations Statute 

5 C.F.R. Part 1201, Appendix II (MSPB regulations) 

29 C.F.R. Part 1614 (EEOC regulations) 

AFI 36-701, Labor Management Relations (27 July 1994) 

AFI 36-704, Discipline and Adverse Actions (22 July 1994) 

AFI 36-1201, Discrimination Complaints (25 July 1994) 

AFI 36-1203, Administrative Grievance System (1 May 1996) 

AFI 51-301, Civil Litigation (1 July 2002) 
502 – The Military Commander and the Law 

OVERVIEW OF FEDERAL LABOR-MANAGEMENT RELATIONS

Labor law is simply about relationships: 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 U.S. 

-- 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 

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 
Civilian Personnel and Federal Labor Law - 503 

-- 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 the personnel by which agency operations will be conducted, and 

-- Fill positions and promote employees 

UNION REPRESENTATION RIGHTS AND DUTIES

− Union is entitled to negotiate 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) 

-- Union may designate its representative during the negotiations 

− 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 that some meetings may be formal even though they are not 

intended to be. 
504 – The Military Commander and the Law 

-- Discussion is synonymous with meeting and does not require debate or 

argument 

-- Check with the Civilian Personnel Office (CPO) and/or SJA before conducting 

such discussions to see if the union should be notified 

− 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 a “Weingarten” Right. Generally, management 

does not have to advise the employee of this right at the beginning of each 

interview unless the collective bargaining agreement between management and the 

union requires it. 

− Union is entitled to information “reasonably available and necessary” for full and 

proper negotiation that is not prohibited from disclosure by 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) 

-- 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 countervailing interests outweigh union’s need 

− Union 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 
Civilian Personnel and Federal Labor Law - 505 

UNION RIGHT TO OFFICIAL TIME

− Union representatives are entitled to wages when on official time to negotiate 

collective bargaining issues 

-- 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 

--- 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 to be 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 

UNION RIGHT TO DUES ALLOTMENTS

− Air Force must process dues allotments in a timely fashion or it will be considered 

an unfair labor practice 

− If Air Force fails, it must reimburse union and Air Force cannot recoup money 

from employee 

AGENCY UNFAIR LABOR PRACTICES 

− Most common agency unfair labor practices 

-- To interfere with, restrain, or coerce employees in exercising their FSLMRS 

rights. Lack of illegal motivation or anti-union animus is not a defense.
506 – The Military Commander and the Law 

-- 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 

-- 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

− MAJCOMs 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, or condone a strike, work stoppage, or slowdown; 

non-disruptive informational picketing is permitted 

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 
Civilian Personnel and Federal Labor Law - 507 

--- Often they will amend charges to conform to their investigation 

--- NEVER permit management officials to be interviewed without notifying 

the legal office. With the exception of some bases within AFMC, 

JACL/CLLO is designated as the agency representative for ULP charges. 

For those cases in which CLLO is designated as the agency representative, 

CLLO 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 

-- CLLO or SJA 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 

REFERENCE: 

AFI 36-701, Labor Management Relations (27 July 1994) 
508 – 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, includes 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 

− Management is not required to bargain over matters already covered in the contract 

(or collective bargaining agreement) 

-- 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 
Civilian Personnel and Federal Labor Law - 509 

-- 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 

− 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 

TYPES OF BARGAINING

− 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 collective bargaining 

agreement 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 

---- 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 over time pay issues, to name a few 

--- 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 
510 – The Military Commander and the Law 

-- 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 (Pub. Law 94-454), 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 

NEGOTIABILITY

− 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 Office 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 JA. JACL/CLLO should also be 

notified of any decision to declare a proposal nonnegotiable. 

-- 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 
Civilian Personnel and Federal Labor Law - 511 

− 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 

REFERENCE: 

5 U.S.C. § 7101-35 

AFI 36-701, Labor Management Relations (27 July 1994) 
512 – The Military Commander and the Law 

AIR FORCE CIVILIAN DRUG TESTING PROGRAM

Executive Order 12,564, Drug Free 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 plan was approved by Secretary of the Air Force 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 

− Required elements of a civilian drug testing plan include 

-- An overall program coordinator appointed for each installation 

-- Drug testing to detect and deter illegal drug use 

-- Personnel actions initiated if illegal drug use is discovered 

-- Employee Assistance Program (EAP): Education and counseling program that 

includes referral to rehabilitation and treatment programs available in the local 

community 

TYPES OF DRUG TESTING

− Random drug testing

-- Only employees in “sensitive positions,” which are also known as Testing 

Designated Positions (TDP) and include national security and public health or 

safety. Applicants for such positions are also tested. 

-- 30-day notice to TDP employees 

− Probable cause / reasonable suspicion of illegal drug use 

-- All Air Force employees can be tested based on reasonable suspicion arising 

from on-duty conduct 
Civilian Personnel and Federal Labor Law - 513 

-- Only TDP employees can be tested based on reasonable suspicion arising from 

off-duty conduct 

− Following Class A or B accident or safety mishap. All Air Force employees can be 

tested. 

− Voluntary testing

-- For Air Force employees not in TDP positions 

-- Volunteer for unannounced random drug testing 

− Follow-up to counseling/rehabilitation 

TESTING BASED ON REASONABLE SUSPICION OF ILLEGAL DRUG USE

− Reasonable suspicion: An articulated belief that an employee uses illegal drugs 

drawn from specific and particularized facts and from reasonable inferences based 

on those facts 

− Helpful to have evidence to support need for testing 

-- Direct observation of drug use, possession, and/or physical symptoms of being 

under the influence of an illegal drug 

-- A pattern of abnormal conduct or erratic behavior 

-- 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 

-- Newly discovered evidence that the employee has tampered with a previous 

drug test 

− Procedure for reasonable suspicion testing includes 

-- Supervisor documentation of supporting facts 

-- Supervisor coordination with SJA 

-- Proper notification to employee required. Must be done in writing. 

-- Test for THC, cocaine, PCP, opiates, and amphetamines 
514 – The Military Commander and the Law 

TESTING AS A RESULT OF A MISHAP OR ACCIDENT

− Toxicology testing is immediately considered following a mishap, if required or 

deemed necessary. The testing will be accomplished promptly and in accordance 

with The Air Force Civilian Drug Testing Plan for civilian personnel. The Air 

Force Civilian Drug Testing Plan is available from the civilian personnel office. 

− DoD civilians will be subject to testing when their action or inaction may have 

contributed to the mishap subject to the limitations and guidance in The Air Force 

Civilian Drug Testing Plan 

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 a contract lab tests the sample 

-- Bottles, labels, individual shipping containers provided by contract lab 

-- Samples suspected of being adulterated are also sent to lab 

− Normally civilian employees are not observed when providing samples, unless 

-- Reason to believe employee has in the past adulterated or will attempt to 

adulterate a sample 

-- Drug test is result of accident or safety mishap investigation 

-- Testing related to rehabilitation program 

− Medical Review Officer (MRO) verification of test results is required 

-- MRO function is currently performed by a contractor 

-- Interviews employee to determine if there is a medical reason for the test result 

(usually positive) 

-- MRO makes final determination of positive, adulterated, diluted, substituted or 

negative result 

CONFIDENTIALITY REQUIREMENTS
Civilian Personnel and Federal Labor Law - 515 

− Absent employee consent or a statutory exception, results of a drug test may not be 

disclosed 

-- Drug test results can be disclosed pursuant to EO 12564 (under 5 U.S.C. § 

7301) for the following reasons 

--- To the MRO for medical review 

--- To administrator of EAP 

--- To management official, i.e., supervisor, for disciplinary action 

-- Drug test results can be disclosed as part of rehabilitation records for 

--- Medical emergency 

--- Research without personal identification 

--- Court order 

− Results cannot be used for law enforcement purposes 

− Can disclose for security requirements, e.g., SSFs, clearances 

PERSONNEL ACTIONS ON FINDING OF ILLEGAL DRUG USE 

− Required actions upon MRO certification of positive result, i.e., illegal drug use 

-- Removal from TDP 

-- Disciplinary action may be initiated 

-- 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 

--- Refrains from further use of illegal drugs 

-- Referral to EAP for counseling/rehab as appropriate 
516 – The Military Commander and the Law 

− The range of disciplinary actions includes 

-- Reprimand to removal for drug use or failure to take test 

-- Mandatory removal 

--- For refusing rehabilitation or counseling 

--- If second drug use offense 

--- If employee altered or attempted to alter sample 

− Required actions upon MRO certification of adulterated or substituted sample, i.e., 

illegal drug use 

-- Considered refusal to test 

-- Mandatory removal 

− As with any kind of disciplinary action taken against a civilian employee, SJA 

involvement may be necessary under AFI 36-704, Discipline and Adverse Actions

REFERENCES: 

Exec. Order No. 12,564, Drug Free Workplace (1986) 

DoDD 1010.9, DoD Civilian Employee Drug Testing Program (23 August 1998) 

DoDD 5220.6, Defense Industrial Personnel Security Clearance Review Program (2 

January 1992) 

AFI 31-101, Air Force Installation Security Program (1 March 2003) 

AFI 31-501, Personnel Security Program Management (1 August 2000) 

AFI 36-810, Substance Abuse Prevention and Control (22 July 1994) 

AFI 36-704, Discipline and Adverse Actions (22 July 1994) 

AFI 91-204, Safety Investigations and Reports (12 April 2004) 
Civilian Personnel and Federal Labor Law - 517 

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. The question is: When can the 

government employer conduct a search of an employee’s workplace without a search 

warrant? 

− In the leading case on workplace searches, O'Connor v. Ortega, the Supreme Court 

recognized that government employees may have a reasonable expectation of 

privacy in their work areas and may be protected from warrantless searches by the 

government employer 

− In that case, the Supreme Court went on to rule that the warrant requirement was 

inappropriate when the burden of obtaining a warrant was likely to frustrate the 

governmental purpose behind the search. The Court recognized that employers 

frequently need to enter the offices and desks of employees for legitimate, workrelated reasons wholly unrelated to illegal conduct. 

− The Court concluded that the standard to be applied is “reasonableness under the 

circumstances.” 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 (assuming that the search is reasonable and not 

arbitrary) is to balance the employee's legitimate expectations of privacy against the 

government's need for supervision, control, and efficient operation of the 

workplace. 

− Accordingly, the more control the employer exercises over workplace areas, 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 

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. 
518 – The Military Commander and the Law 

− 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 

− ALWAYS CONSULT WITH THE SJA BEFORE PROCEEDING WITH ANY 

SEARCH AND SEIZURE ACTION 

REFERENCE: 

O'Connor v. Ortega, 480 U.S. 709 (1987) 
Civilian Personnel and Federal Labor Law - 519 

UNACCEPTABLE PERFORMANCE BY CIVILIAN EMPLOYEES

NOTE

In 2003, Congress passed the Fiscal Year 2004 National Defense Authorization Act. 

That law, codified at 5 U.S.C. § 9902, authorized DoD to establish a new human 

resources system. Pursuant to that law, DoD published final regulations at 5 C.F.R. § 

9901 establishing what is commonly referred to as the National Security Personnel 

System (NSPS). In AFGE v. Rumsfeld, the Court enjoined many parts of NSPS. DoD 

appealed that decision. As of the date of this publication, no decision has been 

rendered in the case. As a result, the NSPS human resources system is applicable to 

some employees, but not others. Consult your Civilian Personnel Office regarding 

whether particular employees are covered by the NSPS human resources system and 

the extent to which coverage alters the concepts and procedures discussed below. 

INTRODUCTION

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. The Act deals with unacceptable performance and its provisions have been 

implemented in the Air Force by AFI 36-704, Discipline and Adverse Actions. This 

outline describes the rules for handling employee performance problems. 

− The CSRA requires 

-- 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 36-1203, 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 36-1203. Bargaining unit employees resolve disputes on ratings 
520 – The Military Commander and the Law 

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 36-1201, 

Discrimination Complaints, or the negotiated grievance procedure, but not both 

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 it documents the critical position performance elements and 

standards for evaluation of overall performance for the position. AF Form 

1003, Core Personnel Document, can be used for this purpose also. 

-- 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 

-- 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 is given a 

copy 
Civilian Personnel and Federal Labor Law - 521 

− 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 

-- At least one progress review, usually at the midpoint of the period, is also 

required and must be documented on the AF Form 860B, Civilian Progress 

Review Worksheet. This review is confidential between the reviewer and 

employee. 

-- If the rating official or the employee are 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 Form 860A 

-- 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 the 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 

Office 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 

(AFI 36-1001, Managing the Civilian Performance Program) 
522 – The Military Commander and the Law 

--- 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 

-- 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, 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 10th month 

of probation 

--- Failure to complete certification on time results in the employee passing 

probation by default 

--- If the supervisor recommends not keeping the employee, the Civilian 

Personnel Flight (CPF) 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 
Civilian Personnel and Federal Labor Law - 523 

-- 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

− Anytime a commander/supervisor takes action to remove or reduce the grade of an 

employee who is not performing adequately, 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 CPF 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 
524 – 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 or 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 AFMAN 37-139, Records Disposition Schedule, 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 36-810, Substance Abuse 

Prevention and Control. 

− When a medically based performance problem exists or might exist, the supervisor 

must inform the employee his or 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, Section 339.102. 

-- Any documentation provided will be reviewed by the supervisor and an Air 

Force or other federal medical officer 
Civilian Personnel and Federal Labor Law - 525 

-- The employee should provide the needed documentation and 

--- 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. Part 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 RIF (reduction in force) 

− 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. Supervisor must coordinate with the appropriate civilian personnel 

official and 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 36-810, Substance Abuse Prevention and Control (22 July 1994) 

AFI 36-1001, Managing the Civilian Performance Program (1 July 1999) 

AFI 36-1201, Discrimination Complaints (25 July 1994) 

AFI 36-1203, Administrative Grievance System (1 May 1996) 

AFMAN 37-139, Records Disposition Schedule (1 March 1996) 

AFGE v. Rumsfeld, 422 F. Supp 2d 16 (D.C. 2006) 
526 – The Military Commander and the Law 

CIVILIAN EMPLOYEE DISCIPLINE

NOTE

In 2003, Congress passed the Fiscal Year 2004 National Defense Authorization Act. 

That law, codified at 5 U.S.C. § 9902, authorized DoD to establish new appellate 

procedures for any appeals that employees may bring in decisions related to their 

employment. Pursuant to that law, DoD published final regulations at 5 C.F.R. § 9901 

establishing what is commonly referred to as the National Security Personnel System 

(NSPS). In AFGE v. Rumsfeld, the Court enjoined the implementation of the new 

appellate procedures. DoD appealed that decision. As of the date of this publication, 

no decision has been rendered in the case; therefore, the appellate procedures remain 

enjoined. As a result, the current procedures discussed below are applicable to all 

civilian discipline cases. Consult your Civilian Personnel Office for the latest status of 

NSPS. 

INTRODUCTION

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. 

− 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 removal, suspension, furlough for 30 days or less, or 

reduction 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 

--- These adverse actions give a civilian employee the right to appeal 

-- Disciplinary action is an action taken by management to correct an employee's 

delinquency or misconduct. Included are 
Civilian Personnel and Federal Labor Law - 527 

--- Admonishment or reprimand 

--- Suspension 

--- Removal 

--- Reduction in grade or pay 

-- Some disciplinary actions are also adverse actions 

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 non-appropriated fund employees 

− Management may take a disciplinary or adverse action only for such cause as will 

promote the efficiency of the service 

− 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 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 

-- The connection between the misconduct, the adverse action taken and the 

employee's job, i.e., that the action taken will promote the efficiency of the 

service 

--- 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. 
528 – The Military Commander and the Law 

-- 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 remember the 

employee has rights (called Weingarten rights) to have union representation if 

the employee believed disciplinary action could result from questioning from 

his employer and he/she requested a union representative. 

-- Consult with the Civilian Personnel Officer (CPO) and the SJA to consider 

options and determine what action is appropriate 

− Civilian Personnel Officer will prepare and the SJA 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 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, i.e., 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 
Civilian Personnel and Federal Labor Law - 529 

--- 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 

− The employee gets a reasonable amount of time, but not less than seven 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 CPO 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 nonmandatory 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 

--- 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. 
530 – The Military Commander and the Law 

--- Use the CPO and SJA to assist in preparation 

-- A decision letter must be sent to the employee 

APPEALS

− If employee is a bargaining unit (union) member, he/she may file 

-- A grievance under the negotiated grievance procedure of the local collective 

bargaining agreement 

-- An Equal Employment Opportunity (EEO) complaint if the employee is 

alleging discrimination 

-- 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 

-- 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 attorneys' fees 

REFERENCES

5 U.S.C. § 7701 (2006) 

AFI 34-301, Nonappropriated Fund Personnel Management and Administration (25 

July 1994) 

AFI 36-704, Discipline and Adverse Actions (22 July 1994) 

AFGE v. Rumsfeld, 422 F. Supp 2d 16 (D.C. 2006) 
Civilian Personnel and Federal Labor Law - 531 

CIVILIAN EMPLOYEE INTERROGATION

In 1975, the U.S. Supreme Court, in N.L.R.B. v. Weingarten, 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 statutory 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 an OSI, 

Security Forces, or even a 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 

-- Individuals being investigated may not serve as representatives for other 

employees being investigated until their own investigations are completed 
532 – The Military Commander and the Law 

-- An employee may waive his/her Weingarten rights 

− 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 adversary 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 

-- 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, MSPB hearing, etc.), and failure to do so can be an 

ULP by management. These rights are known as Brookhaven rights, 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 
Civilian Personnel and Federal Labor Law - 533 

-- 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) 

NLRB v. Weingarten, 420 U.S. 251 (1975) 

Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280 (1968) 

IRS and Brookhaven Service Center, 9 FLRA 930 (1982) 

Kalkines v. United States, 472 F.2d 1391 (Ct. Cl. 1973) 
534 – The Military Commander and the Law 

EQUAL EMPLOYMENT OPPORTUNITY (EEO) COMPLAINT 

PROCESS

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 initiate contact with a Counselor within 45 days of the date 

of the matter alleged to be discriminatory, or in the case of personnel action, within 

45 days of the effective date of the action 

− Tolling: Initial contact beyond 45 days will be permitted if the employee was not 

notified of and was not otherwise aware of the 45-day limit, or did not know and 

reasonably could not have known that the discriminatory matter or personnel action 

occurred, or was prevented by circumstances beyond his control from contacting 

the counselor within the time limits, or for other reasons considered sufficient by 

the agency or the Equal Employment Opportunity Commission (EEOC). 

Normally, the employee can be deemed to be on constructive notice of the time 

limits if management has included the time limit information on the EEO posters 

that are posted around the base. 

− 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 

-- Counselors shall conduct the final interview with the aggrieved person within 

30 days of the date the aggrieved person contacted the agency’s EEO office to 

request counseling (unless the aggrieved person chose ADR) 

-- The aggrieved person may agree in writing with the agency to postpone the 

final interview and extend the counseling period for an additional period of no 

more than 60 days 
Civilian Personnel and Federal Labor Law - 535 

-- Where the aggrieved person chooses to participate in an ADR, the precomplaint processing period (informal complaint processing), shall be 90 days 

FORMAL COMPLAINT

− Written complaint: Complaint must be submitted in writing within 15 days of final 

interview notice. Complainant may amend the complaint (with like or related 

claims) at any time prior to conclusion of investigation. Complainant may also 

amend his complaint on motion to judge after request for hearing. 

− Dismissals of complaint: Prior to a request for a hearing in a case, the agency can 

dismiss an entire complaint for the following reasons 

-- Failure to state a claim: Generally, an employee states a claim when he 

articulates that he has been aggrieved by an employment policy or practice due 

to his protected status; i.e., race, religion, disability etc. This ability to 

articulate a claim does not mean the employee wins on the merits, it simply 

allows the employee to continue processing his case in the EEO forum. 

-- Identical complaint 

-- Not against the proper agency 

-- Untimely at either formal or informal stage 

-- Pending civil action in a United States District Court 

-- Raised in negotiated grievance procedure or in an appeal to the Merit Systems 

Protection Board (MSPB) 

-- Issue is moot, or issue is a proposal to take a personnel action or other 

preliminary step to taking a personnel action 

-- Complainant cannot be located 

-- Failure to prosecute: Complainant fails to respond to requests for relevant 

information 

-- Spin-off complaints: Spin-off complaints are complaints about the process. 

These complaints are generally expressed as accusations of not processing the 

case fast enough or failing to interview all of the requested witnesses etc. The 

employee can raise concerns about the processing of the complaint with the 

EEO counselor and can also raise them with an EEOC judge if there is a request 

for a hearing, but the spin-off complaint itself must be dismissed. 

-- Abuse of Process: Complainant is part of a clear pattern of misuse of the EEO 

process for reasons other than the prevention and elimination of employment 

discrimination 
536 – The Military Commander and the Law 

− Appeal of dismissal: A complaint dismissed in whole by the agency may be 

appealed, within 30 days of receipt, to the EEOC’s 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. This 

determination is reviewable by the administrative judge (AJ) if a hearing is 

requested on the remainder of the complaint. 

− Investigation: The Office of Complaint Investigations (OCI), which is a component 

of the DoD, will conduct the investigation. The OCI investigator collects the 

exhibits gathered by the agency representative and the complainant, interviews the 

witnesses, drafts the affidavits for the witnesses to sign, and writes a 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 

-- Request a hearing and decision from an EEOC AJ 

EEOC HEARING

− Request for Hearing: Complainants make requests for a hearing directly to the 

EEOC office indicated in the agency’s acknowledgment letter. The Complainant 

must send a copy of the request for a hearing to the agency EEO office. 

− Discovery: The parties may engage in discovery before the hearing. The AJ may 

limit the quantity and timing of discovery. Evidence may be developed through 

interrogatories, depositions, and requests for admissions, stipulations or production 

of documents. 

− Grounds for Objection: A party may object to requests for discovery that are 

irrelevant, over burdensome, repetitious, or privileged. 

− Evidence: The AJ shall receive into evidence information or documents relevant to 

the complaint. Rules of evidence shall not be applied strictly, but the AJ shall 

exclude irrelevant or repetitious evidence. 

− Witnesses: Agencies shall provide for the attendance at a hearing of all federal 

government employees approved as witnesses by an AJ 

− Alternatives to testimony: Written statement under penalty of perjury 

− Record of hearing: The hearing shall be recorded and the agency shall arrange and 

pay for verbatim transcripts 
Civilian Personnel and Federal Labor Law - 537 

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 

− Complainant’s Appeal of Final Agency Action: If a complainant is going to appeal, 

s/he must do so within 30 days of receipt of a dismissal, final action or decision 

− Request for Reconsideration: A decision issued by the EEOC/OFO is final unless 

the Commission reconsiders the case 

− Timing of Request for Reconsideration: A party may request reconsideration within 

30 days of receipt of a decision of the Commission 

− Grounds for Reconsideration 

-- The appellate decision involved a clearly erroneous interpretation of material 

fact or law, or 

-- The decision will have a substantial impact on the policies, practices or 

operations of the agency 

REMEDIAL ACTIONS 

− Nondiscriminatory placement 

− Back pay reduced by interim earnings; employee must be ready, willing, and able 

to work to be entitled to back pay 

− Front Pay 

− Expunge from the agency’s records any adverse materials relating to the 

discriminatory employment practice 

− Full opportunity to participate in the employee benefit denied (e.g., training, 

preferential work assignments, overtime scheduling) 

− Fees and costs: Attorney’s fees and costs shall apply to allegations of 

discrimination prohibited by Title VII and the Rehabilitation Act. Finding of 

discrimination raises a presumption of entitlement to an award of attorney’s fees. 

− Compensatory Damages: Compensatory damages include damages for past 

pecuniary loss (out of pocket loss), future pecuniary loss, and nonpecuniary loss 
538 – The Military Commander and the Law 

(emotional harm). There is a statutory cap of up to $300,000.00 on future 

pecuniary damages, and nonpecuniary damages. The $300,000.00 cap does not 

include past pecuniary damages, back pay, front pay, attorney fees, or lost benefits. 

− Injunctive Relief 

MISCELLANEOUS

− Compressed Orderly Rapid Equitable (CORE) Process: In 2004 the Secretary of 

Defense selected the Air Force to conduct a two-year pilot called CORE. CORE is 

a streamlined EEO process for handling civilian employment discrimination 

complaints. 

-- The only change to the pre-complaint process is CORE adds a requirement to 

brief all aggrieved on the availability of the process 

-- Once the complainant files a formal complaint, CORE deviates significantly 

from the traditional process. It involves a combined fact-finding/adjudicative 

process that can take no more than 127 days. This is 233 fewer days than the 

traditional process. 

-- CORE initially included 31 Air Force Bases around the world. In September 

2005, the CORE process was expanded to all CONUS Air Force Bases. 

− Official time: Reasonable time to prepare and attend—normally considered in 

hours, not days or weeks; does not allow official time for witnesses to prepare, but 

allows for official time when their presence is authorized or required by 

Commission or agency officials in connection with a complaint 

− Requirement for exhaustion of administrative remedies before seeking judicial 

review 

− 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 

antidiscrimination 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 whistleblower protection laws 
Civilian Personnel and Federal Labor Law - 539 

-- Federal agencies and the EEOC must disclose and post statistical complaint 

data 

REFERENCES: 

Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, 

Pub. L. No. 107-174, 116 Stat. 566 (2002) 

29 C.F.R. § 1614 

AFI 36-1201, Discrimination Complaints (25 July 1994) 

EEO Management Directive 110 (1999) 
540 – 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. 

− The Act made the Office of Special Counsel (OSC) independent of the Merit 

Systems Protection Board (MSPB) and specifically charged the OSC with 

protecting the employee-whistleblower 

− 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 

− The whistleblower has a right to obtain attorneys 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 or a violation of law, rule or regulation, must first seek the assistance of 

OSC before bringing an individual action 

-- 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 

− 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 protected disclosures, even if they have not actually done so 

-- Persons who suffer a retaliatory personnel action because of their relationship 

to someone who has made protected disclosures 
Civilian Personnel and Federal Labor Law - 541 

− 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 only 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 

--- The standard falls somewhere between preponderance of the evidence and 

the beyond a reasonable doubt standard 

− Mere harassment and threats, even without any formally proposed personnel action, 

can constitute a prohibited personnel action under 5 U.S.C. § 2302(b)(9), 

"triggering" the protection of the 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 

-- 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 
542 – The Military Commander and the Law 

-- An employee 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, completely overturned 

− OSC may recommend disciplinary action to be taken against a member of the 

armed forces to the head of his/her agency 

REFERENCE: 

5 U.S.C. §§ 1201, et seq. 

5 U.S.C. § 2302 
Civilian Personnel and Federal Labor Law - 543 

FAMILY & MEDICAL LEAVE ACT

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. 

− Federal employees are covered by the FMLA. It does not apply to active duty 

military personnel or to intermittent or temporary employees. 

− The Family Friendly Leave Act (FFLA), which expanded leave opportunities for 

federal civilian employees, is now a matter of regulation. The FFLA regulations 

provide additional leave to civilian employees under certain conditions. 

LEAVE ENTITLEMENT UNDER THE ACT

− Entitlements under the Act may not be diminished by any collective bargaining 

agreement 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 workweeks 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) 

-- The FFLA regulations augment the amount of leave available under the FMLA 

by up to 13 days (104 hours) 

− Procedures for determining the type of leave to be used are complicated, making 

consultation with the 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 

-- The care of a spouse, child, or parent who has a serious health problem 
544 – The Military Commander and the Law 

--- The FFLA regulations expand coverage to include the care of any family 

member with a serious health condition 

--- Family member means: Spouse and parents; children (including adopted 

children) and their spouses; parents; brothers, sisters, and their spouses; and 

any individual related by blood or affinity whose close association with the 

employee is the equivalent of a family relationship 

-- A serious health condition of the employee that makes the employee unable to 

perform the essential functions of his/her position 

-- The FFLA regulations expanded coverage to include family care, e.g., routine 

medical appointments and childhood educational activities, and bereavement 

associated with death of a family member 

NOTICE OF INTENT TO USE LEAVE UNDER THE FMLA 

− 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 and that 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. 
Civilian Personnel and Federal Labor Law - 545 

− 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. 

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, donated leave, or additional 

leave without pay 

REFERENCES: 

5 U.S.C. §§ 6381-87 

5 C.F.R. § 630.401 

5 C.F.R. Part 630, Subpart L 
546 – 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 

-- Since 1980, 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 

-- Availability: Applicant must be able and available to accept work, and must be 

actively seeking work 

− It takes a team effort of the SJA, CPO and Accounting and Finance to defeat 

meritless unemployment compensation claims 

− Unemployment compensation matters should be considered an important part of all 

personnel actions resulting in termination 

PROCEDURES

− Vary from state to state, but generally the procedure is as follows 
Civilian Personnel and Federal Labor Law - 547 

-- A form (SF-8, Notice to Federal Employees About Unemployment Insurance) is 

given to employee by the civilian personnel office upon separation 

-- Claim filed by former federal employee with appropriate state agency 

--- The former employee may file a claim anywhere, if he chooses, but benefits 

are paid by the state of the employee’s last duty assignment 

--- If the employee was overseas, he must return to the United States to file, 

and his state of residence will pay any appropriate benefits 

-- State agency sends 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 

--- The reasons for termination 

-- Air Force has four workdays after receipt 

--- To return the forms correctly completed or notice that the time limit cannot 

be met and an estimated completion date 

--- To 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) 

--- 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 this regard could hurt the Air Force’s ability to appeal the state’s 

determination 

-- State agency makes initial determination 

--- Either party may appeal and request a hearing 
548 – The Military Commander and the Law 

--- At the hearing, the Air Force may have to relitigate the basis for the 

termination, even if the Air Force's position has already been upheld by the 

Merit Systems Protection Board or by an arbitrator 

--- Witnesses are necessary. In other words, a commander who removed the 

employee may have to testify as to 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. Part 604, 609 

DoDD 1400.25-M, Department of Defense Civilian Personnel Manual (CPM), 

Unemployment Compensation, Chapter 850 (25 July 1997) 
Civilian Personnel and Federal Labor Law - 549 

BASE CLOSURE CIVILIAN PERSONNEL ISSUES

Base closures have considerable potential for civilian personnel controversy and 

litigation 

− Federal employee unions must be notified at losing sites and given an opportunity 

to negotiate with the Air Force over the impact of the closure decision and the 

manner of implementing the closure decision called Impact and Implementation (I 

& I) bargaining 

-- The decision to close base is not negotiable, but it may be necessary to bargain 

concerning the impact and implementation of the decision 

-- I & I bargaining obligation with unions can take considerable time and effort 

and must be fulfilled before closure can be implemented 

--- Unions must be given enough time to seek information, prepare proposals, 

and initiate bargaining 

--- Bargaining can be protracted, negotiability questions can arise, impasses 

can be resolved by outside help (all very slow) 

--- Completing closure before bargaining is finished may result in unfair labor 

practice (ULP) litigation based on unilateral change and bargaining in bad 

faith 

--- Injunctive relief against Air Force is possible 

--- Administrative litigation can result in status quo ante remedy (i.e., returning 

the circumstances to the way they were before the action by the Air Force) 

requiring Air Force to go back to square one 

--- While Air Force should ultimately prevail on right to close and when to 

close, the best course of action is to avoid litigation by early notification to 

affected unions 

− Additionally, federal employee unions at gaining sites may also have to be notified 

if there is more than a de minimis impact on employees at gaining location from 

moving employees to that location, and given opportunity to bargain over I & I of 

moving employees. Notification to unions at gaining locations is subject to the 

same concerns, although impact on the closure process not as severe. 

− In addition to Freedom of Information Act (FOIA), unions have a statutory right to 

information necessary to accomplish representational responsibilities 
550 – The Military Commander and the Law 

-- Processing of such requests is separate and distinct from FOIA channels, base 

Civilian Personnel Office (CPO) is OPR (in the absence of CPO, check with the 

SJA’s office) 

-- With few exceptions, if information is normally maintained by agency and is 

reasonably available, it must be released upon request 

− Civilian employees must be formally notified of transfer of organization, have their 

options explained, and given a reasonable amount of time to respond as to whether 

they want to transfer with the function 

-- Most movements will be "transfer of function," where entire organization and 

staff moved to different part of country 

-- However, not all affected personnel may be needed for same or comparable job 

at gaining location, so reduction-in-force (RIF) would occur to eliminate 

personnel overage 

-- In either case, considerable time is needed to ascertain what affected personnel 

will do, prepare necessary follow-on paperwork, such as PCS orders, 

RIF/separation notices 

− Civilian employees involuntarily terminated or reduced in grade as result of 

transfer have right to litigate action before various administrative agencies, usually 

with right of judicial review of decision. Civilian employees "released from 

competitive level" (RIF term of art meaning essentially reduction-in-force or 

removal) or removed for failing to transfer with function have numerous appeal 

avenues available. 

-- Air Force Equal Employment Opportunity channels (AFI 36-1201, 

Discrimination Complaints) if alleging violation of Title VII of 1964 Civil 

Rights Act 

-- Negotiated grievance procedure for employees covered by collective bargaining 

agreement (both appropriated and nonappropriated fund employees) 

-- Merit Systems Protection Board 

-- Federal Labor Relations Authority if alleging violation of Federal Service 

Labor Management Relations Statute 

-- Special agency procedures (AFMAN 34-310, Nonappropriated Fund Personnel 

Management and Administration Procedures) for nonappropriated fund 

employees 
Civilian Personnel and Federal Labor Law - 551 

-- Reinstatement and other equitable or "make whole" relief available to 

employees through any of above 

-- Procedures vary in speed, cost to agency, and available judicial review by one 

or both sides 

− Civilian employees who have been PCS'd have right to file claim for some costs of 

selling home at old location/buying home at new location 

-- Entitlement and procedures are covered in Joint Travel Regulations 

-- Reimbursement cap limits amount paid and may affect ability of employees in 

high cost areas (parts of California) to recover costs otherwise allowable 

− Relocated civilian employees are entitled to file claim against Air Force for damage 

to household goods shipped pursuant to PCS orders 

-- Entitlement and procedures are covered in AFI 51-502, Personnel and 

Government Recovery Claims

-- Claims subject to dollar limitations and depreciation, resulting in possible 

unreimbursed losses 

REFERENCES: 

AFI 36-701, Labor Management Relations (27 July 1994) 

AFI 36-1201, Discrimination Complaints (25 July 1994) 

AFI 51-502, Personnel and Government Recovery Claims (1 March 1997) 

AFMAN 34-310, Nonappropriated Fund Personnel Management and Administration 

Procedures (1 December 1995)

Environmental Law - 553 

CHAPTER SIXTEEN: 

ENVIRONMENTALLAW 

Environmental Laws: Overview................................................................................554 

Environmental Torts..................................................................................................556 

Environmental Fees...................................................................................................557 

Procedures

Controls on Air Force Decision-Making: NEPA.................................................558 

Environmental Compliance Assessment and Management Program..................561 

Responding to an Enforcement Action................................................................564 

Liability Under Environmental Laws..................................................................567 

Media Relations and Environmental Incidents....................................................570 

Laws and Regulations

Cleanup of Contamination from Past Activities..................................................572 

Natural & Cultural Resource Preservation Laws.................................................577 

Noise and Land Use.............................................................................................583 

Clean Air Act.......................................................................................................585 

Clean Water Act/Safe Drinking Water Act .........................................................589 

Water Rights........................................................................................................593 

Solid and Hazardous Wastes ...............................................................................595 

Control of Toxic Substances................................................................................599 

Environmental Law Overseas..............................................................................602 
554 – The Military Commander and the Law 

ENVIRONMENTAL LAWS: OVERVIEW

− Federal statutes now cover virtually all major environmental issues 

-- Although most statutes provide a method for exemption, this usually requires 

personal action by the President or the Secretary of Defense and, as a result, 

exceptions are rare 

-- Most major federal environmental statutes also waive the federal government's 

immunity from state and local pollution control regulations, including permit 

and other procedural requirements as well as substantive pollution control 

standards 

-- Most subject the Air Force to state and local enforcement. Federal facilities are 

explicitly subject to fines and penalties for violations of requirements related to 

hazardous waste, underground storage tanks, and drinking water. 

-- 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 delegated authority to establish standards for particular 

sources of pollution, integrate the individual controls into an overall plan that 

will achieve the federal standards, and enforce the controls on a day-to-day 

basis 

− Thus, three levels of enforcement authority typically apply 

-- The U.S. Environmental Protection Agency retains authority to enforce when it 

has not delegated that authority to the relevant state or when it learns of 

violations that are not being prosecuted by a delegated state 

-- State or local enforcement agencies have primary responsibility for taking 

administrative or judicial actions for most violations 

-- When federal and 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 
Environmental Law - 555 

REFERENCES: 

AFI 32-7040, Air Quality Compliance (9 May 1994) 

AFI 32-7041, Water Quality Compliance (10 December 2003) 

AFI 32-7042, Solid and Hazardous Waste Compliance (12 May 1994) 

AFI 32-7044, Storage Tank Compliance (13 November 2003) 
556 – The Military Commander and the Law 

ENVIRONMENTAL TORTS

− The major environmental statutes (Clean Air Act, Clean Water Act, 

Comprehensive Environmental Response, Compensation, and Liability Act, and 

Resource Conservation and Recovery Act) either contain immunity provisions for 

federal employees acting in scope or have been held by courts to grant immunity, 

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

− However, federal officials, including relatively low-level employees, have been 

held criminally liable for violations of various environmental statutes that contain 

criminal penalties when they do not fall within the purview of statutory immunity. 

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

− Additionally, if a defendant is being tried for violating federal (not state) criminal 

law, the Department of Justice will generally decline both criminal and civil 

representation. 

− Guidance regarding property damage tort claims in favor of the United States is 

provided in AFI 51-501, Chapter 4. 

REFERENCES: 

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

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

AFI 51-501, Tort Claims (15 December 2005) 
Environmental Law - 557 

ENVIRONMENTAL FEES

− The major federal environmental statutes waive sovereign immunity for payment of 

reasonable service charges (i.e., fees) 

-- The waivers in most statutes authorize state and local environmental regulatory 

agencies to charge federal facilities reasonable fees in connection with 

administration of the state program 

-- Such assessments are payable, if: sovereign immunity has been waived; the 

assessments are reasonable; the assessments are not “taxes,” since assessment 

of a tax on the federal government by a state violates the U.S. Constitution and 

cannot be paid 

− The most accepted fee/tax test, which is incorporated into the DoD instruction 

governing environmental compliance, provides that a fee is not a tax if the charges: 

(1) do not discriminate against Federal functions; (2) are based on a fair 

approximation of use of the system; and (3) are structured to produce revenues that 

will not exceed the total cost to the state of the benefits to be supplied 

− If an assessment appears to be a tax and its legality is questionable, payment is not 

authorized and should be deferred. Advice should be requested from 

AFLOA/JACE through the appropriate MAJCOM on whether or not the fee should 

be paid. Installations must comply with any specific coordination/approval 

requirements in applicable policy. Payment under protest generally should not be 

made. 

− Although refusal to pay a fee should not be relayed to the regulator without 

appropriate prior coordination, installations can seek feedback from the regulator 

regarding the legal basis for payment of the fee. Also, installations can dispute the 

amount of the fee without prior MAJCOM and HQ coordination since such a 

dispute does not challenge the fee itself but rather the accuracy of the amount 

invoiced. 

− Fees are paid from funds available for the Environmental Compliance Program 

REFERENCES: 

DoDI 4715.6, Environmental Compliance (24 April 1996) 

DoD 7000.14-R, Financial Management Regulation (Volume 10, Chapter 6, section 

0605), February 1996 

AFI 32-7001, Environmental Budgeting (9 May 1994) 

AFI 51-301, Civil Litigation (1 July 2002) 

Memorandum , SAF/MIQ, Environmental Fee/Tax Policy Action (17 November 1989) 

(under revision) 
558 – 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 that the public be informed of, and involved in, the decision-making 

process. Executive Order 12114 applies a similar process to proposed actions outside 

of the United States and its territories. This section is limited to NEPA procedural 

requirements within U.S. jurisdiction. 

− In a nutshell, the NEPA process under Air Force regulations requires the following, 

before any final decision on a proposed action is made 

-- Consideration and documentation of the environmental effects of proposed 

action on AF Form 813; and

-- Determination that a categorical exclusion (CATEX) applies; preparation of an 

Environmental Assessment (EA) and a Finding of No Significant Impact 

(FONSI); or preparation of an Environmental Impact Statement (EIS) and 

Record of Decision (ROD) 

− Failure to follow the process can result in the action being delayed through 

litigation challenging the adequacy of the NEPA documentation. The process 

requires the analysis and documentation of a reasonable range of alternatives 

whenever an EA or EIS is required before any final decision or irretrievable 

commitment of resources. 

-- The Environment, Safety, and Occupational Health Council (ESOHC), which 

replaced the Environmental Protection Committee (EPC), implements this 

process at base level 

--- The wing commander is the ESOHC chairperson, but this duty may be 

delegated to the vice wing commander. The chairperson selects the 

executive secretary, who generally is the base civil engineer. 

--- Other functions normally represented are environmental planning, natural 

and cultural resources, biomedical engineering, logistics, operations, plans, 

judge advocate, public affairs, comptroller, personnel, nonappropriated fund 

activities, weather, safety and tenants 

--- Representatives of the major hazardous waste generators as well as the 

Defense Reutilization and Marketing Office (DRMO) should also be 

included 
Environmental Law - 559 

− Under NEPA, the Air Force must prepare an EIS for a "major federal action 

significantly affecting the quality of the human environment" 

-- Requirement of a "major" action refers to the impact on the environment, not to 

the size of the project; thus, even a small project can qualify as “major” 

-- EIS required for a proposed action to be undertaken jointly with state or private 

parties 

-- The Air Force must also prepare an EIS for a private action essentially under 

Air Force “control” (e.g., actions that require Air Force permission) 

-- Consider whether environmental effects are significant based on context and 

intensity 

-- For proposed actions where impacts are uncertain, an EA is prepared, resulting 

in a Finding of No Significant Impact (FONSI), or an EIS 

-- 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 

-- The term "human environment" includes the natural and physical environment, 

as well as the relationship of people with that environment. Therefore, social 

and economic effects by themselves do not trigger the need for NEPA 

documentation. If social and economic impacts are interrelated with natural 

and physical impacts, then they should be addressed in an EIS or EA. 

Additionally, these effects may fall within the scope of Executive Order 12898 

on Environmental Justice, which requires federal agencies to consider the 

effects of proposed projects upon minority and low-income populations. 

-- The heart of NEPA is the identification and analysis of alternatives. The 

impacts of alternatives must be analyzed in comparison to the proposed action 

in a balanced manner, and must include a No Action alternative. A reasonable 

range of alternatives that would also satisfy the purpose and need of the 

proposed action must be analyzed. 

− The ESOHC reviews and makes recommendations on appropriate NEPA 

documentation 

-- The base civil engineer, with the assistance of the ESOHC, is responsible for 

managing the environmental impact analysis process (EIAP), which 

implements NEPA requirements 

-- Before doing an EA, check to see if the proposed action is "categorically 

excluded" (or CATEXed) from the requirement to conduct an environmental 

analysis 
560 – The Military Commander and the Law 

− NEPA requires the EIS to be a "detailed statement" addressing five areas 

-- The environmental impacts of the proposed action, including beneficial as well 

as adverse impacts, and direct, indirect and cumulative impacts 

-- Unavoidable adverse environmental effects should the proposal be 

implemented 

-- Alternatives to the proposed action, including No Action 

-- The relationship between local short-term uses of man's environment and the 

maintenance and enhancement of long-term productivity 

-- Irreversible and irretrievable commitments of resources should the proposal be 

implemented 

− The 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. Classified documents in an EIS must be prepared, safeguarded, and 

disseminated to decision makers or others according to the normal requirements 

that apply to classified information. 

− NEPA is a procedural law 

-- The Air Force must ensure that environmental concerns are given "appropriate 

consideration," but NEPA does not require the Air Force to rank environmental 

concerns above mission goals. However, most of the subject areas considered 

as part of the NEPA analysis have separate substantive requirements of their 

own. 

-- The Air Force must also ensure that all reasonable measures are taken to 

mitigate adverse environmental impacts associated with an action that the Air 

Force has chosen to implement. An EIS or EA/FONSI should clearly identify 

mitigation plans. 

REFERENCES: 

40 C.F.R. Parts 1500-1508, Council on Environmental Quality Regulations 

AFI 32-7061, The Environmental Impact Analysis Process (12 March 2003) (adopting 

32 C.F.R. Part 989, Environmental Impact Analysis Process (EIAP), as the 

controlling document on the Air Force EIAP) 

AFI 90-801, Environment, Safety, and Occupational Health Councils (25 March 2005), 

superseding AFI 32-7005, Environmental Protection Committees (25 February 

1994) 
Environmental Law - 561 

ENVIRONMENTAL COMPLIANCE ASSESSMENT AND 

MANAGEMENT PROGRAM

− The Environmental Compliance Assessment and Management Program (ECAMP) 

is a comprehensive self-evaluation and program management system designed to 

ensure compliance with environmental laws and regulations at Air Force 

installations 

− Some MAJCOMs have expanded the scope of the assessment to include 

Occupational Health and Safety. This broader assessment program is referred to as 

the Environmental, Safety, and Occupational Health Compliance Assessment and 

Management Program (ESOHCAMP) 

OBJECTIVES 

− Improve Air Force environmental compliance and environmental management 

worldwide 

− Build supporting financial programs and budgets for environmental compliance 

requirements 

APPLICATION 

− Applies to all installations within the U.S. unless exempted by MAJCOM due to 

significant interference with military effectiveness 

− Overseas installations must conduct assessments to measure applicable standard 

compliance 

− Assessments address compliance with state and federal requirements in areas such 

as air, hazardous materials and wastes, noise, solid waste, water quality, pesticides, 

petroleum, oil, lubricants, and natural and cultural resources. Safety and 

occupational health will also be examined by those MAJCOMs with an 

ESOHCAMP program. 

PROGRAM STRUCTURE 

− MAJCOMs coordinate and conduct external assessments, while installations 

coordinate and conduct internal assessments 

− ECAMP Process 
562 – The Military Commander and the Law 

-- MAJCOMs or contractor personnel conduct external assessment at least once 

every 3 years 

-- Installations conduct their own internal assessments annually, except when 

external assessments are conducted 

-- Pre-assessment activities include a pre-visit questionnaire to collect data and to 

familiarize the assessment team with the installation and its operation. Helps to 

define assessment scope and team responsibilities. Also provides a review of 

the relevant regulations and assessment protocols. 

-- Assessment activities include information collection regarding environmental 

compliance, management effectiveness and other matters through record 

searches, interviews with installation personnel, and site surveys 

-- Post-assessment activities include an outbrief, preparation of Preliminary 

Environmental Findings (PEF) and base preparation of a Management Action 

Plan (MAP) to address problems uncovered during the assessment 

-- Final ECAMP report incorporates the PEFs and MAP. As a matter of policy, 

EPA has stated that they will not request copies of reports. Requests for release 

of any ECAMP document must be forwarded to the base/MAJCOM staff judge 

advocate for a legal review. The installation commander, after consultation 

with the staff judge advocate, determines whether to self-report findings of 

noncompliance to regulators, Department of Justice may consider ECAMP as a 

mitigating factor in deciding whether to pursue a criminal prosecution. 

− Typical issues that arise include 

-- Failure to treat vehicle antifreeze as hazardous waste (HW) 

-- Pharmaceuticals may be acutely hazardous waste and require additional 

treatment 

-- Waste amalgam and bite-wing X-rays are usually HW 

-- The Air Force is ultimately responsible for contractor-generated waste 

-- Lead acid batteries that crack or spill are HW 

-- Print shops, photo labs, etc. generate HW that often is not handled as such 

-- Leak detection equipment malfunctions at service stations 

-- Failure to label and manage appropriately Universal Waste 
Environmental Law - 563 

− ECAMP follow-up. Installations, through the Environment, Safety and 

Occupational Health Committee (ESOHC) (formerly the Environmental Protection 

Committee), should ensure appropriate actions are taken to remedy problems. This 

may include programming and budgeting for funds and documenting all steps 

taken. 

REFERENCE: 

AFI 32-7045, Environmental Compliance Assessment & Management Program (1 July 

1998) 

AFI 90-801, Environment, Safety, and Occupational Health Councils (25 March 2005) 

AFPD 90-8, Environment, Safety and Occupational Health (1 September 2004) 
564 – The Military Commander and the Law 

RESPONDING TO AN ENFORCEMENT ACTION

− The enforcement action is an administrative enforcement mechanism used by a 

state or federal regulatory agency to provide notice of noncompliance with either 

statute or regulation. It is used for most environmental statutes. Enforcement 

actions are sometimes called Notices of Violation (NOV), Notices of NonCompliance (NON), Notices of Deficiency (NOD), Compliance Agreements (CA), 

or Consent Orders (CO). 

− Enforcement actions are often issued after an inspection, with or without notice, by 

a regulatory agency 

− Enforcement actions can be issued without an inspection based upon reports filed 

with the regulatory agency (effluent limitations, spills, etc.). Also, a failure to 

report can result in an EA. 

-- 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 

-- Any violation can lead to more inspections by regulators 

-- Installations may be issued enforcement actions for acts of non-Air Force 

personnel, e.g., AAFES, contractors 

− Enforcement actions must receive priority treatment and must be reported to higher 

headquarters 

-- JAs are required to immediately and independently notify MAJCOM/JA, the 

Regional Environmental Counsel, and AFLOA/JACE 

-- CEs are required to immediately notify the MAJCOM/CE and the Regional 

Environmental Office 

-- Enforcement actions for each base are tracked in a quarterly report briefed to 

CSAF and the Deputy Assistant Secretary of the Air Force (Environment, 

Safety, and Occupational Health) (SAF/IEE) 

ENFORCEMENT ACTION PROCESS AND AVOIDANCE

− The U.S. Environmental Protection Agency (EPA) and the states may assess fines 

and penalties for some violations 
Environmental Law - 565 

-- The EPA "complaint" triggers a very formal administrative process 

--- Must file answer within 20 days; failure to respond to any given allegation 

is an admission of its truth 

--- Ensure that a coordinated effort is made to preserve evidence and document 

site conditions, as it may be some time before the hearing 

--- Pursue settlement efforts while hearing is pending 

-- State enforcement actions – follow state rules 

--- Usually must submit a written response within 30 days of receipt 

--- Take corrective action as soon as practicable 

--- Pursue informal resolution, except in CAA cases, which may require 

coordination with AFLOA/JACE, SAF/GCN, and DOJ prior to negotiations 

-- All settlements regarding payment of fines or penalties must be approved by 

AFLOA/JACE 

− Enforcement actions are avoidable! Be prepared for inspections by regulators 

-- Treat inspections like operational readiness inspections 

-- Know your weak areas 

-- Conduct pre-inspections 

-- Complete the "easy fixes;" don’t wait to be directed 

-- "Neatness" really does count 

-- Select and brief an escort team to go with inspectors 

-- Know the areas most likely to produce violations 

--- Hazardous waste management plans 

--- Personnel training records 

--- Documentation of "cradle-to-grave" management of hazardous waste, to 

include return manifests showing that wastes destined for disposal sites 

actually arrived 
566 – The Military Commander and the Law 

--- Labeling and condition of hazardous waste barrels 

--- Contingency plans and emergency procedures 

--- Air and water discharge monitoring reports, compared with actual permit 

limitations to be sure they were not exceeded 

-- If you get an enforcement action, use all of the available resources to resolve it 

--- Notify others (MAJCOM, JA, AF Regional Compliance Office, Public 

Affairs) 

--- Cooperate with regulating agency 

--- Timely response is imperative 

--- Regulators may propose compliance agreement. If so, involve your staff 

judge advocate (SJA) immediately. NEVER SIGN A COMPLIANCE 

AGREEMENT WITHOUT SJA COORDINATION

BOTTOM LINE 

− Preparation is the key to avoiding enforcement actions 

− Prompt, cooperative response is the key to resolving enforcement actions 

REFERENCES: 

AFI 32-7040, Air Quality Compliance (9 May 1994) 

AFI 32-7041, Water Quality Compliance (10 December 2003) 

AFI 32-7042, Solid and Hazardous Waste Compliance (12 May 1994) (under revision) 

AFI 32-7044, Storage Tank Compliance (13 November 2003) 

AFI 32-7047, Environmental Compliance Tracking and Reporting (8 April 2004) 

AFI 32-7060, Interagency and Intergovernmental Coordination for Environmental 

Planning (25 March 1994) 

AFI 51-301, Civil Litigation (1 July 2002) 

AFPAM 32-7043, Hazardous Waste Management Guide (1 November 1995) (under 

revision) 
Environmental Law - 567 

LIABILITY UNDER ENVIRONMENTAL LAWS

Individual employees, as well as the Air Force itself, may be held liable for 

environmental law violations. While the Air Force is subject to civil and 

administrative liability, individuals may also be held criminally liable in their personal 

capacities. 

− Individual Liability

-- Civil Liability 

--- Department of Justice 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 

--- Often, the United States is substituted for the individual, who then is 

released from personal liability 

− Criminal Liability

--- Every major environmental law has criminal provisions that can be applied 

to active-duty members, reservists, Guardsmen, civilian personnel, and 

contractors 

--- Generally applied for knowing or willful violations or for wanton disregard 

of the law or public safety. In some cases, negligence can form the basis for 

criminal charges. 

--- Sanctions can include a monetary fine and time in jail 

--- Military members may also be subject to UCMJ prosecution 

--- In 1990, 3 Army employees (SES-4, GS-15, and GS-14) were found guilty 

of storing and disposing hazardous wastes (HW) in knowing violation of the 

Resource Conservation and Recovery Act (RCRA) and sentenced to three 

years probation each 

---- In this case, “knowing” meant that employees disposed of harmful 

substances. Prosecution did not have to show that they knew the 

substances were “hazardous wastes” or that the disposal was illegal. 
568 – The Military Commander and the Law 

---- DOJ did not provide representation and forbade the Army from doing 

so. Attorneys’ 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, a manager of an Army wastewater treatment plant 

convicted of nine felony counts for violating a permit and falsifying 

reports, was sentenced to eight months in jail 

---- A Navy fuels division director repeatedly instructed subordinates to 

pump fuels through a line that he knew would leak. He was sentenced 

to ten months confinement. 

---- An airman was convicted by courts-martial of dereliction of duty after 

he caused an overflow of jet fuel. He then attempted to conceal his 

mistake. He was sentenced to one-month restriction to base and a 

reprimand. 

-- In addition to prosecution by DOJ, individuals may be prosecuted by states 

under state law 

-- 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 

-- Factors DOJ considers in deciding whether to prosecute include 

--- Voluntary disclosure of violation before the regulators discover it 

--- Cooperation with regulators 

--- Good faith self-auditing program

--- Internal disciplinary action 

--- Subsequent compliance efforts, such as ECAMP/ESOHCAMP follow-up 

− Organizational Liability

-- Administrative and Civil Fines and Penalties 

--- An administrative fine or penalty is enforced within the regulatory body that 

assesses it. The amount is typically lower than the amount of a civil 

penalty. 
Environmental Law - 569 

--- A civil penalty is imposed through a court order 

--- Historically, under the principle of “sovereign immunity,” the federal 

government and its agencies cannot be sued without Congressional consent 

--- In many statutes, sovereign immunity is waived for substantive and 

procedural requirements, but not for the payment of penalties. If sovereign 

immunity has not been waived for payment of fines and penalties, then 

payment would violate fiscal law. 

--- Negotiations over environmental enforcement actions must be coordinated 

with MAJCOM and JACE. This is particularly important when negotiation 

involves payment of a penalty or a request for a supplemental 

environmental project (SEP). 

− Most statutes authorize payment of reasonable fees 

− Most statutes also allow EPA to delegate its enforcement authority to qualified 

states. States' requirements are at least as stringent as the federal requirements. 

− Additional Issues Related to Commanders’ Liability 

-- Direct participation in the violation of an environmental statute is just one way 

in which a Commander could be subject to prosecution 

-- By not acting promptly to correct an environmental violation, the commander 

may also be subject to prosecution even though he/she had no direct 

involvement 

-- If violations of the law do occur, immediately begin to engage staff judge 

advocate and the appropriate regulatory authorities to establish good faith in the 

compliance resolution process 

REFERENCES: 

AFI 51-301, Civil Litigation (1 July 2002) 

SAF/IEE, Air Force Policy on Payment of Fines and Penalties for Violations of the 

Clean Air Act (17 July 2002) 
570 – The Military Commander and the Law 

MEDIA RELATIONS AND ENVIRONMENTAL INCIDENTS

Numerous federal statutes require reporting releases or discharges into the environment 

to local, state, or federal regulatory agencies. Every installation should have 

contingency or disaster plans that address the required notifications. Given the variety 

of overlapping jurisdictions and regulations, the requirements may be substantially 

different and dependent on the location of the installation. 

PUBLIC AFFAIRS INVOLVEMENT

− The Office of Public Affairs (SAF/PA) maintains a program to involve the public 

in Air Force environmental activities and decisions, particularly within the 

Environmental Impact Analysis Process (EIAP), the Installation Restoration 

Program (IRP), and the Air Installation Compatible Use Zone (AICUZ) program 

ENVIRONMENTAL IMPACT ANALYSIS PROCESS (EIAP) 

− SAF/PA responsibilities 

-- Reviews and clears environmental documents in accordance with AFI 35-101, 

Public Affairs Policies and Procedures, prior to public release 

-- Assists AFLOA/JAJT in planning and conducting public scoping meetings and 

hearings 

-- Ensures that public affairs aspects of all EIAP actions are conducted in 

accordance with the EIAP regulation and Chapter 9 of AFI 35-101 

− Public Affairs Officer (PA) responsibilities 

-- Advises the Environmental Planning Function (EPF), the Environmental 

Protection Committee (EPC), and the action proponent on public affairs 

activities on proposed actions and reviews environmental documents for public 

involvement issues 

-- Advises the EPF of issues and competing interests that should be addressed in 

the EIS or EA 

-- Assists in preparation of and attends public meetings or media sessions on 

environmental issues. 

-- Prepares, coordinates, and distributes news releases and other public 

information materials related to the proposal and associated EIAP documents 
Environmental Law - 571 

-- Notifies the media (television, radio, newspaper) and purchases advertisements 

when newspapers will not run notices free of charge. The EPF will fund the 

required advertisements. 

-- Determines and ensures Security Review requirements are met for all 

information proposed for public release 

INSTALLATION RESTORATION PROGRAM

− PA responsibilities 

-- Serving as the focal point for public affairs aspects of proposed IRP actions 

-- Advising on the public affairs aspects of the Air Force responsibilities for the 

development, implementation and participation in the Restoration Advisory 

Board (RAB) 

-- Ensuring all concerned community parties are in the communication channel 

-- Conducting, during IRP remedial actions, community interviews to solicit 

concerns, informational needs, and desired levels of involvement. This 

includes 

--- Preparing an IRP community relations plan for MAJCOM approval and 

establishing an information repository accessible to the general public 

--- Developing, coordinating, and distributing news releases and fact sheets on 

IRP progress and proposed actions 

AIR INSTALLATION COMPATIBLE USE ZONE (AICUZ PROGRAM) 

− The base community planner manages the AICUZ program, but the PA officer 

releases the AICUZ report and acts as an information conduit between the base and 

the community 

− In the event noise complaints occur, PA will handle complaints directly; providing 

timely, responsive, and factual answers to maintain good media and community 

relations; and will refer all claims for damages to the base claims office 

REFERENCE: 

AFI 35-101, Public Affairs Policies and Procedures (29 November 2005) 

AFMAN 32-4013, Hazardous Material Emergency Planning and Response Guide (1 

August 1997) 
572 – The Military Commander and the Law 

CLEANUP OF CONTAMINATION FROM PAST ACTIVITIES

COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY 

ACT (CERCLA) 

− Also known as “Superfund,” CERCLA provides a means of assessing parties 

responsible for releases of hazardous substances (HS) and authorizes the 

Environmental Protection Agency (EPA) to order those parties to cleanup the 

contamination 

− 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 

transport, treatment or disposal 

-- Most courts have ruled that any responsible party can be required to pay the 

total cost of cleanup, regardless of the amount that a liable party contributed to 

the contamination 

-- Responsible parties are also liable for damages that are 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. 

− DoD’s cleanup program, the Installation Restoration Program (IRP), predates 

CERCLA and was codified as the Defense Environmental Restoration Program, 10 

U.S.C. § 2701 et. seq. 

− CERCLA §120 provides for state and federal involvement in DoD cleanup by state 

and federal regulators 

− The IRP mirrors CERCLA’s response action stages that include 

-- Discovery 

-- Preliminary Assessment and Site Inspection (PA/SI) 

-- Remedial Investigation/Feasibility Study (RI/FS) to determine the nature and 

extent of contamination and evaluate options for cleanup 

-- Record of Decision (ROD) selecting cleanup method 
Environmental Law - 573 

-- Remedial Design, Remedial Action, and usually monitoring 

− The EPA evaluates DoD facilities for possible placement on the National Priorities 

List (NPL), which is a list of the most seriously contaminated sites, presumably 

requiring the earliest cleanups 

-- For sites on the NPL, CERCLA § 120(e)(4) requires the Air Force to enter into 

Interagency Agreements (IAGs) with EPA; states are encouraged to sign IAGs 

--- In 1988, to implement the IAG requirement, DoD and EPA agreed on 

model language provisions, which were last revised in 1999. Deviation 

from the model is not permitted without approval from HQ USAF/A7CV. 

--- In furtherance of the Air Force’s efforts to streamline its cleanups and in 

response to EPA efforts to add provisions to the model FFA, the Air Force 

will not routinely enter into a detailed FFA. No new IAG/FFA may be 

entered into without coordination through the MAJCOM and 

AFLOA/JACE. AFLOA/JACE will obtain any required 

coordination/approval from SAF/IEE. 

-- For sites not on the NPL, the State provides the primary regulatory oversight 

− CERCLA also establishes release-reporting requirements 

-- Releases of hazardous substances must be reported to the National Response 

Center 

-- Installations must also submit a pollution incident report within Air Force 

channels 

-- An Executive Order requires installations to comply with the 1986 amendment 

to CERCLA the Emergency Planning and Community Right-to-Know Act 

(EPCRA) which requires 

--- Emergency notification to state and local authorities of releases of 

hazardous substances 

--- Emergency planning with state and local authorities for responding to 

releases 

--- Submission of data prepared in accordance with the Occupational Safety 

and Health Act (OSHA) to local authorities 

--- If statutory quantity thresholds are met for listed materials, preparation of 

an annual inventory (Toxic Release Inventory or TRI), which provides 
574 – The Military Commander and the Law 

information to EPA about the amount of listed materials possessed, used, 

transferred and released 

-- The Air Force’s Third Party Site (TPS) program resolves CERCLA claims by 

EPA, states and private parties against the Air Force resulting from disposal of 

hazardous substances at off-base properties not owned or operated by the 

federal government 

-- Cases are assigned to regional environmental counsel (REC) in Atlanta, Dallas, 

or San Francisco, based upon the location of the third party site 

-- The REC works with environmental attorneys and engineers from each base 

alleged to have disposed of hazardous waste at the site to identify witnesses and 

documents relevant to the claim 

-- The REC determines the Air Force’s share, if any, of the total volume of all 

hazardous substances disposed of at the site by all parties, and negotiates 

settlements of 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 liability are paid by the 

Department of Justice from the Judgment Fund, not from Air Force funds 

− 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 parties, including costs for sampling, analysis, monitoring 

and surveying programs, and other planning and engineering services 

-- Chapter 26 of the Management Guidance for the Defense Environmental 

Restoration Program requires the Air Force to pursue recovery of cleanup costs 

that have exceeded or are expected to exceed $50,000 

-- Base personnel should alert their Major Command counterparts where there is a 

potential cost recovery action against a third party 

RESOURCE CONSERVATION AND RECOVERY ACT CORRECTIVE ACTION (RCRA CA) 

CURRENT ISSUES 

− How much authority do states have to control the process? By Executive Order 

12580, DoD is lead agency for environmental restoration activities on military 

installations; however, states increasingly are asserting that they can regulate these 

cleanups as part of their Resource Conservation and Recovery Act (RCRA) 

corrective action authority. EPA asserts it has oversight authority at DoD-lead 

sites. 
Environmental Law - 575 

− How clean is clean enough and who will decide this? RCRA standards are quite 

strict and the substantive standards must be evaluated as ARARs. In addition, a 

state may impose those substantive standards on IRP cleanups under its RCRA CA 

authority when it can establish RCRA jurisdiction (that is, the base has or has 

applied for a RCRA permit). However, there is a growing national consensus 

towards risk-based cleanups and away from "clean to pristine." This results in a 

greater use of Land Use Controls (LUCs), which include “Institutional Controls” 

(ICs) (i.e., easements, restrictive covenants, notices, dig permits) and “Engineering 

Controls” (ECs) (i.e., fences, signs, caps, and long-term monitoring), when the 

cleanup is not to levels which allow unrestricted use. LUCs restrict using property 

for certain purposes, such as residential (versus industrial) and thereby limit the 

exposure of vulnerable populations. It is imperative that LUCs and other ICs are 

properly documented in the Base Management Plan and maintained. 

-- In recognition of the importance of public involvement at military installations 

that require environmental restoration, it is DoD policy that an installation will 

form a Restoration/Community Advisory Board (RAB or CAB) 

--- The RAB is composed of members from the local community and 

representatives from DoD, the state, and EPA, as appropriate. Community 

members selected for RAB 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 and 

decision-making 

− What are Performance-Based Cleanups versus Performance-Based Contracting? 

-- A key principle of performance-based cleanups is performance over process, 

where the measure of “success” is defined in terms of performance-based 

metrics. The implementation of performance-based cleanups is expected to 

decrease the time to cleanup and be a more efficient use of dollars. 

-- Performance-based contracting focuses on results, with minimal contract focus 

on process. It is used with a variety of contract types, i.e., firm-fixed-price and 

cost reimbursement, and shifts the risk of performance to the contractor. 

REFERENCES: 

10 U.S.C. § 2701 

Exec. Order No. 13,148, Greening the Government Through Leadership in 

Environmental Management (2000) 

AFI 32-7020, Environmental Restoration Program (7 February 2001) 

AFI 32-7042, Solid and Hazardous Waste Compliance (12 May 1994) 

AFI 32-7060, Interagency and Intergovernmental Coordination for Environmental 

Planning (25 March 1994) 
576 – The Military Commander and the Law 

AFPAM 32-7043, Hazardous Waste Management Guide (1 November 1995) 

Management Guidance for the Defense Environmental Restoration Program, 

September 2001 

United States Air Force Remedial Project Manager’s Handbook, May 2000 

Policy Guidance, Deputy Under Secretary of Defense (Installations and Environment) 

Raymond Dubois, Principles and Procedures for Specifying, Monitoring and 

Enforcement of Land Use Controls and Other Post-ROD Actions (2 October 

2003) 
Environmental Law - 577 

NATURAL & CULTURAL RESOURCE PRESERVATION LAWS

In addition to the National Environmental Policy Act (NEPA), several federal laws 

present additional environmental planning responsibilities. In many instances, these 

requirements can be accomplished in conjunction with NEPA. For example, 

documents prepared or consultations conducted pursuant to these laws may become 

part of the NEPA document itself or of the administrative record setting forth the 

decision-making process. 

Two areas that provide additional environmental requirements for federal agencies are 

− Natural Resource Stewardship: Responsibilities imposed under the following 

statutes 

-- The Endangered Species Act 

-- The Sikes Act 

-- The Migratory Bird Treaty Act 

− Cultural Resource Stewardship: Responsibilities imposed under the following 

statutes 

-- The National Historic Preservation Act 

-- The Archeological Resources Protection Act 

-- The Native American Graves Protection and Repatriation Act 

-- The American Indian Religious Freedom Act 

ENDANGERED SPECIES ACT (ESA) 

− Requires Air Force to insure that actions are not likely to jeopardize the continued 

existence of any endangered or threatened species, or to destroy or adversely 

modify their critical habitat 

-- An endangered species is a plant or animal species or subspecies that is in 

danger of extinction throughout all or a significant part of its range 

-- A threatened species is a plant or animal species or subspecies that is likely to 

become endangered within the foreseeable future throughout all or a significant 

part of its range 
578 – The Military Commander and the Law 

-- A critical habitat is a specific land area essential for the conservation of a 

species 

− Before taking action likely to jeopardize the existence of a protected species or to 

destroy or adversely modify its habitat, the Air Force must formally consult with 

U.S. Fish and Wildlife Service (FWS) 

-- If uncertain of effect of action on protected species or its habitat, can have 

informal consultation with FWS. FWS will decide if formal consultation is 

required. 

-- If consultation is necessary, it will include evaluation of potential effects, 

reasonable and prudent mitigation measures, and ways to avoid a jeopardy 

determination 

-- Formal consultation concludes in 90 days. FWS then has 45 days to issue a 

Biological Opinion (BO), which results in either a “No Jeopardy” opinion or a 

“Jeopardy” opinion 

--- For a “No Jeopardy” opinion, FWS issues an “Incidental Take Statement,” 

excusing actions that would otherwise constitute a “take” and specifying 

permissible impact that the action may have, reasonable and prudent 

measures to minimize impacts, and required terms and conditions 

--- For a “Jeopardy” opinion, the Air Force will modify its proposed action by 

adopting measures that will result in a “No Jeopardy” opinion 

SIKES ACT

− Under the Sikes Act, each military installation is required to manage the natural 

resources on the installation in accordance with an Integrated Natural Resource 

Management Plan (INRMP). INRMPs are detailed plans that integrate military 

training requirements with natural resource conservation needs. INRMPs require 

consultation with FWS and the State fish and game authority, and are also subject 

to public comments and five-year reviews. 

MIGRATORY BIRD TREATY ACT (MBTA) 

− The MBTA protects migratory birds as well as their habitats and flyways. It 

prohibits unlawful, or unpermitted, taking or killing of migratory birds. 

− The MBTA is a criminal statute. It establishes an absolute prohibition against any 

actions that result in the “taking” of migratory birds, including unintentional 

incidental takes resulting from military training. 
Environmental Law - 579 

− For 80 years, federal agencies were not considered a “person” subject to the permit 

requirements of the MBTA. Humane Society v. Glickman, 217 F.3d 882 (D.C. Cir. 

2000) held that federal agencies are not exempt from these requirements. 

− Currently, MBTA permitting categories do not cover many DoD activities. In the 

2003 National Defense Authorization Act Congress directed the FWS to prescribe a 

regulation that exempts military readiness activities, including all training and 

operations of the Armed forces that relate to combat from the general prohibition of 

the MBTA. This incidental take authorization is set out at the MBTA regulations at 

Section 21.15 of 50 C.F.R. Part 21. DoD is also required by Executive Order 

13186 to enter into a Memorandum of Understanding (MOU) with FWS relating to 

the impacts on migratory birds from military activities. MOUs must include 

conservation measures and provide for minimization of intentional takes, 

identification of unintentional takes, and advance notice to FWS of anticipated 

takes. 

NATIONAL HISTORIC PRESERVATION ACT (NHPA) 

− Like NEPA, the NHPA is a planning statute. It ensures that historic properties are 

considered during federal project planning. It requires the Air Force to identify and 

take appropriate measures to preserve historical and archaeological resources under 

its control. 

− Before approving the expenditure of funds on any "undertaking" or issuing a 

license, the Air Force is required to take into account the effect on any district, site, 

building, structure, or object that is included in, or eligible for inclusion in, the 

National Register of Historic Places (NRHP), and to afford the Advisory Council 

on Historic Preservation (ACHP) a reasonable opportunity to comment 

− The NRHP is an inventory of resources administered by the National Park Service 

(NPS) 

− A property will be considered eligible for listing on the NRHP if it meets one of the 

following criteria 

-- Association with events that have made a significant contribution to history 

-- Association with lives of persons significant in our past 

-- Embodiment of distinctive characteristics of a type or method of construction or 

representation of a master’s work or possession of high artistic values 

(architecture) 

-- Potential to yield information important to history or prehistory (archeology) 
580 – The Military Commander and the Law 

− If a district, site, building, structure, or object meets the criteria and is eligible for 

listing, the Air Force must comply with identification, evaluation and consultation 

requirements of the NHPA, even if the resource is not yet listed on the NRHP 

− If the Air Force determines that the undertaking will adversely affect historic 

properties, the Air Force should consult with the State Historic Preservation Officer 

(SHPO) or, if applicable, the Tribal Historic Preservation Officer (THPO), to find 

ways to make the undertaking less harmful. Consultation leads to a Memorandum 

of Agreement (MOA), outlining measures to avoid or mitigate adverse effects. 

− Preservation is not required in every case. The Installation Commander retains 

complete authority in connection with the management of all facilities on the 

installation. In the event a historic property must be removed or destroyed, the Air 

Force can satisfy its mitigation requirements by accomplishing a recordation 

relating to the affected historic property. The SHPO/THPO or ACHP can provide 

expert advice, but has no veto power. 

− Consultation under Section 106 of the NHPA should be completed before funds are 

expended or licenses are issued 

− Failure to provide a reasonable opportunity to comment can result in a 

“foreclosure” letter sent by the ACHP to the head of the agency, making defense to 

legal challenge more difficult 

− Ordinarily a property must have existed for at 50 years to be considered historically 

significant unless the property is found to be of “exceptional” significance, such as 

is the case for the DoD “Cold War Resources” on some military installations 

− Air Force is required to assume responsibility for preservation of historic properties 

it owns or controls and is also required to adaptively reuse historic properties, to the 

maximum extent feasible 

ARCHEOLOGICAL RESOURCES PROTECTION ACT (ARPA) 

− Designed to protect archeological resources on federal and Indian lands, the ARPA 

requires identification of these resources on each installation. To prevent damage, 

destruction or vandalism, the location of the archeological sites can be kept 

confidential. FOIA does not apply to this information. 

− Applies to past human life, resources over 100 years old, and retrievable scientific 

information. Does not include fossils, surface collected arrowheads, rocks, coins, 

bullets or minerals. 

− Unauthorized excavation is prohibited. Therefore, private persons must obtain 

permits to excavate on Air Force land. This does not include Air Force contractors; 
Environmental Law - 581 

however, all contracts should contain ARPA language for protecting archeological 

resources. 

− Must notify tribes before issuing an ARPA permit if harm to a site with tribal, or 

traditional religious or cultural importance may result 

− Air Force policy is to refer requests for permits to the NPS for approval or 

disapproval 

− DoD regulations require installation commanders to establish public awareness 

programs to educate military personnel and their dependents and members of the 

community of the importance of these archeological resources to our national 

heritage 

NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT 

− Gives Native Americans the right to ownership and control of the disposition of 

human remains discovered on the installation, first to a lineal descendant or to the 

Indian tribe with cultural affiliation to the lands on the installation 

− Requirements include creating an inventory of Native American cultural items in 

the possession of the AF, repatriating such items, and consultation with potentially 

affected Tribes prior to permitting an intentional archeological excavation or prior 

to removal of cultural items after an inadvertent discovery on the installation 

− Cultural items include human remains, funerary objects, sacred objects and objects 

of cultural patrimony (having an ongoing importance to a group or culture) 

− Intentional excavation requires an ARPA permit and consultation or consent of 

tribe 

− In the event of an inadvertent discovery of cultural items, unless otherwise 

provided by agreement with an appropriate culturally affiliated tribe to a different 

standard operating procedure, the Commander must stop activity for 30 days and 

reasonably protect the items. Then, must provide immediate notification and begin 

consultation in connection with the proper handling and disposition of the 

discovered cultural items. 

− Scientific testing, investigation and curation are not authorized 

− Consultation with Federally-recognized Tribes to be conducted on a governmentto-government basis, because Indian Tribes are sovereign nations 
582 – The Military Commander and the Law 

AMERICAN INDIAN RELIGIOUS FREEDOM ACT (AIRFA) 

− AIRFA promotes religious freedom by affirming the right of access to sacred 

places located on military installations. Promotes consultation with American 

Indian religious practitioners if a place of religious importance to American Indians 

may be affected by a federal undertaking. 

− Executive Order 13007 (May 1996), Indian Sacred Sites, directs the Federal land 

manager to accommodate access to and ceremonial use of Indian sacred sites on the 

installation to the maximum extent practicable with military mission, safety and 

security. The Air Force should avoid affecting the physical integrity of such sites 

and should maintain confidentiality of their location, where appropriate. 

CULTURAL RESOURCE PRESERVATION DUTIES

− To carry out these duties at the base level 

-- The base CE designates an individual with a background in history, 

architecture, archaeology, or natural resources to serve as the base historic 

preservation officer 

-- The wing CC may establish a Historic Preservation Committee or assign this 

function to another installation committee such as the Environmental Protection 

Committee 

REFERENCES: 

Exec. Order No. 13,007 (1996) 

AFI 32-7061, The Environmental Impact Analysis Process (12 March 2003) 

AFI 32-7064, Integrated Natural Resources Management (17 September 2004) 

AFI 32-7065, Cultural Resources Management Program (1 June 2004) 
Environmental Law - 583 

NOISE AND LAND USE

Issues regarding noise pollution and land use have the potential to directly affect the 

ability of Air Force installations to accomplish their mission and the manner in which 

that mission is accomplished. Limited noise regulations are established under the 

Federal Noise Control Act. 

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, the courts have determined that state and local regulation 

of aircraft noise is preempted by the FAA regulation 

− The FNCA requires 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 the 

base environs, especially private lands adjacent to runways, remain compatible 

with continued Air Force operations. 

− Without proper land use controls, new development near airfields may increase the 

potential for injuries and damage due to aircraft accidents, and the number of noise 

complaints. Also, future changes in operations, e.g., beddown of new aircraft, 

changes in flight paths, may result in lawsuits by private landowners claiming the 

Air Force has “taken” their land. 

− To assist local governments in establishing suitable land use regulations in the 

vicinity of the base, the DoD has established the AICUZ program 

− The Air Force develops and provides to local land use planning authorities, land 

use recommendations designed to ensure continued compatibility between the 

installation and neighboring civilian communities 

-- The first step in preparing an AICUZ proposal is to identify areas that have a 

high accident potential or that are affected by high noise levels from aircraft 

operations from the military airfield 
584 – The Military Commander and the Law 

-- The Air Force uses this information to assess compatibility of land uses with 

current and projected Air Force operations and to make a recommendation 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 uses. The Air 

Force simply presents the proposal to the local zoning officials, which has the 

authority to approve or reject the Air Force proposal. 

-- Presentation of the Air Force AICUZ proposal requires tact and discretion 

-- The installation commander is responsible for ensuring that the AICUZ 

proposal is presented to local zoning officials in a professional and persuasive 

manner. Close coordination between the Commander and his/her Base 

Comprehensive Planner and local zoning officials is essential to educate local 

land use planners regarding the noise and safety impacts on private lands 

adjacent to the ends of the runways or in the immediate vicinity of the airfield 

so that the local authorities will choose to prevent incompatible land uses and 

avoid inconsistent development from occurring in high noise or accident 

potential zones. 

-- Air Force representatives should be particularly careful to avoid threatening the 

local community with reprisals if the Air Force proposal is not accepted; and 

Air Force representatives ought not to appear to apply coercion or otherwise 

have undue influence on the local zoning officials who hold the exclusive 

authority to develop a comprehensive zoning plan for the community 

-- Minimize potential for lawsuits by maintaining close consultation with the SJA 

REFERENCES: 

42 U.S.C. §§ 4901-18, Noise Control Act of 1972 

32 C.F.R. Part 256, Air Installations Compatible Use Zones 

AFI 32-7063, Air Installation Compatible Use Zone Program (13 September 2005) 
Environmental Law - 585 

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. This guide is intended to be 

an introduction to the Act. Specific questions or issues should be referred to your SJA. 

Federal facilities, including Air Force installations, are subject to the substantive 

requirements of the CAA as a result of a waiver of sovereign immunity in the Act. 

AIR QUALITY EMISSIONS LIMITATIONS

− The primary air pollutants regulated by the CAA are called “criteria pollutants.” 

Currently, there are six (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, 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 that tests lower than this standard is considered to be in “attainment” 

for that pollutant. An AQCR that tests over this standard is considered to be in 

“non-attainment” for that pollutant. Once a nonattainment area attains the 

NAAQS it is considered a “maintenance area” because the area, although now 

in attainment, 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 

-- The states are required to create a planning document, called a State 

Implementation Plan or SIP, setting 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 the 

EPA 
586 – The Military Commander and the Law 

--- A state’s SIP is required to set forth enforceable emissions limitations and 

timetables, technological or process changes, monitoring requirements, and 

an enforcement program 

-- In “nonattainment” and “maintenance” areas, Federal entities are prohibited 

from supporting or taking any action that does not conform to a SIP. This 

requirement is called “General Conformity.” The requirement means that 

before undertaking any action that impacts air quality (e.g. construction 

activity, weapon system beddown, mission realignment, training exercise, etc.), 

in “nonattainment areas” or “maintenance areas,” an analysis must be 

conducted to demonstrate that the proposed action will not hinder attainment or 

maintenance of air quality standards. 

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 permitting 

− The nature of the permitting requirement varies depending on whether the new 

source is a “major” or “minor” source. Determining whether a source is “major” 

depends on whether the source is in an attainment (clean) or nonattainment (dirty) 

area. In attainment areas, a major source is one with the potential to emit up to 250 

tons of any one criteria pollutant per year. In a nonattainment area, potential to 

emit as little as 10 tons per year may make your source “major” and, thus, require a 

permit. It is the “potential” to emit, not the actual or planned level of emissions 

that triggers the permit requirement. 

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 toxic air pollutants 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 a number of 

industries. 
Environmental Law - 587 

− Any stationary source having a potential to emit 10 tons per year (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 that an operational 

permit be obtained for any “major” stationary source of a criteria or hazardous air 

pollutant 

− Title V permits; permit applications, certifications of compliance, emergency 

reports and required semi-annual emissions reports must be signed by the wing 

commander as the “responsible official” unless there has been approval in writing 

by the state permitting authority and the EPA region for a delegation of this 

signature authority 

MOBILE SOURCES

− In addition to addressing stationary sources of pollution, e.g., boilers, fueling 

systems, and heat plants, the Clean Air Act also addresses mobile sources, such as 

automobiles 

-- Mobile source controls normally take the form of requirements on 

manufacturers to meet tailpipe emissions standards (generally not of concern at 

the installation level), or requirements to use low polluting fuels or clean fuel 

vehicles (which may apply to installation vehicle purchase or use) 

-- Military Aircraft and combat vehicles with weaponry or armor are entitled to 

application of automatic national security exemptions from tailpipe standards 

by the manufacturers and case-by-case exemptions are available for other 

tactical vehicles or equipment (e.g., 2-stroke outboard motors for special forces 

zodiac boats) 

− However, new or modified operational emissions in nonattainment or maintenance 

areas from these same aircraft, vehicles, and equipment (that are eligible for 

national security exemptions when manufactured) are subject to the General 

Conformity requirement discussed above 
588 – The Military Commander and the Law 

STRATOSPHERIC OZONE PROTECTION

− Generally, the Clean Air Act phases out the production of ozone depleting 

substances. Other laws and regulations regulate 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

− Regulators, under the CAA, have all the common environmental enforcement 

rights -inspections, fines, injunctions, and criminal sanctions 

− The CAA also provides for citizen suit rights 

− Sovereign Immunity for fines and penalties 

-- DoD does pay fines imposed by EPA 

-- Presently, it is the position of the Department of Justice that Congress has not 

waived immunity for payment of fines and penalties imposed by states. DoD 

does not pay fines to states under the CAA except under limited circumstances, 

e.g., state-imposed CAA penalties are paid within 6th Circuit due to a Court of 

Appeals decision. 

-- As with all areas of the CAA, please consult your SJA regarding CAA fines 

REFERENCE: 

42 U.S.C. §§ 7401 - 7671q 

AFI 32-7040, Air Quality Compliance (9 May 1994) (under revision) 
Environmental Law - 589 

CLEAN WATER ACT/SAFE DRINKING WATER ACT

In general, the Clean Water Act (CWA) (33 U.S.C. §§ 1251 to 1387) regulates surface 

water quality and the disturbance of wetlands (which are considered “waters of the 

U.S.” even when dry). The Safe Drinking Water Act (SDWA) (42 U.S.C. §§ 300f to 

300j-26) regulates the quality of drinking water. The rights to the use of both surface 

water and groundwater are generally governed by state law and are not the focus of 

these acts. 

CLEAN WATER ACT 

− The CWA states that 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 manmade 

addition to a body of water, including even residue from dredge and fill projects 

(bringing in wetlands) and pollutants from stormwater that drains from facilities 

-- The surface waters covered by the Act encompass all "waters of the United 

States, including the territorial seas." But, it does not include “isolated” 

wetlands. 

-- 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 

--- This definition excludes two major sources of pollution from the Act’s 

coverage 

--- Infiltration of ground water that does not have a distinct hydrological 

connection with surface water 

--- Surface runoff that does not come from a point source, e.g., farmland 

runoff. However, stormwater from construction activities and industrial 

activities is presumed to be channeled, e.g. in ditches, which leaves 

industrial and construction stormwater within the NPDES program. 

− Under the CWA, there are two primary permitting systems--the Section 404 

program, which regulates dredge and fill activities (i.e. activities which disturb 

wetlands), and the National Pollution Discharge Elimination System (NPDES), 
590 – The Military Commander and the Law 

which regulates the discharge of other pollutants from wastewater plants and which 

includes the stormwater permit program 

− NPDES program (§ 402) 

-- Environmental Protection Agency (EPA) has delegated the authority to 

administer the NPDES program to most states 

-- Each state retains the authority to adopt more stringent limitations than those 

established by EPA 

-- EPA retains a veto authority over delegated states 

− The EPA regional office issues permits in states that have not been delegated 

authority 

− 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: Discharge effluent directly from a facility to surface water. Such 

discharges will require a permit as discussed above. 

-- Indirect: Discharge to a wastewater treatment works rather than directly into 

surface water 

-- Though no NPDES permit is required for indirect dischargers, pretreatment of 

the wastewater is required before introducing it into a treatment works 

− Dredge and Fill Activities (§ 404). In conjunction with EPA, the U.S. Army Corps 

of Engineers administers a second permit program that regulates dredge and fill 

activity. 

-- EPA has responsibility for developing guidelines for the Corps to use in 

specifying disposal sites. The EPA also has authority to limit the use of a 

disposal site approved by the Corps when the discharge into that area will have 

an unacceptable adverse impact. 

-- In some circumstances, a state may be delegated primary jurisdiction over 

dredge and fill permits within its boundaries 

-- Clearing and construction in wetlands requires that the Air Force obtain a 

dredge and fill permit 
Environmental Law - 591 

-- Failure to obtain a permit can delay projects; require the Air Force to restore 

land to its prior natural condition; and/or subject Air Force personnel to 

criminal liability 

− The CWA also mandates that each state develop a plan to reduce nonpoint source 

pollution that contributes to water quality control problems in the area 

− Enforcement 

-- The CWA waives sovereign immunity, subjecting federal agencies to state and 

local regulations 

-- The waiver applies to both substantive and procedural requirements, including 

permits and reasonable service charges, but does not authorize the payment of 

civil or administrative fines and penalties 

SAFE DRINKING WATER ACT

− The Safe Drinking Water Act (SDWA) (42 U.S.C. §§ 300f-300j-26) sets standards 

for public water systems (PWS) and prohibits underground injection that endangers 

drinking water sources 

-- Standards apply to PWS that have 15 connections or serve 25 people for at least 

60 days/year 

-- The Act exempts from its coverage any PWS that receives all of its water from 

another PWS. That consists only of distribution and storage facilities (and does 

not have any collection or treatment facilities); that does not “sell” water to any 

person; and that is not a carrier conveying passengers in interstate commerce. 

-- 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 

− The 1996 amendments to the Act rewrote the waiver of sovereign immunity. As a 

result, federal facilities are now subject to punitive civil fines and penalties. 
592 – The Military Commander and the Law 

REFERENCES: 

42 U.S.C. §§ 300f - 300j-26, The Safe Drinking Water Act of 1974 

33 U.S.C. §§ 1251 et seq, Clean Water Act 

DoDD 6230.1, Safe Drinking Water (24 April 1978) 

AFI 32-1067, Water Systems (25 March 1994) (under revision) 

AFI 32-7041, Water Quality Compliance (10 December 2003) 

AFI 32-7047, Environmental Compliance Tracking and Reporting (8 April 2004) 

AFI 48-144, Safe Drinking Water Surveillance Program (19 March 2003) 
Environmental Law - 593 

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. 

(Where we purchase water from a utility, the utility, not the installation, has the 

water right; Utility contracts are thus outside the scope of this discussion.) Like 

other types of property law, most water rights law is state, not federal, law. 

-- Most states’ water law is derived from one of two broad doctrines, the Riparian 

Rights Doctrine, and the Prior Appropriation Doctrine. Several states have 

hybrid schemes, drawing from both doctrines. 

--- The 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. Landowners have analogous “overlying rights” to divert 

groundwater from sources situated beneath their land. 

--- The Prior Appropriation Doctrine assigns the right to divert water (and 

priorities among water rights holders) on the basis of historical usage 

--- The Federal Reserved Rights Doctrine is the third doctrine created under 

federal law pursuant to which 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 

-- Sovereign Immunity 

--- The key waiver of sovereign immunity with regard to water rights allows 

the United States to be sued in “general stream adjudications,” i.e. in 

lawsuits designed to determine the rights of all potential claimants to a 

source of water 

--- There is no waiver of sovereign immunity as to the regulation of those 

water rights which state law provides to the Federal government as of right, 

e.g., by virtue of being a landowner 

− Key Issue for Bases: The Preservation of their Water Rights 

-- In most Prior Appropriation states, water rights can be lost inadvertently, as by 

failing to follow procedures for transferring water rights when closing a well 
594 – The Military Commander and the Law 

-- In many Prior Appropriation states, where records may be particularly 

important, bases do not always preserve important records, e.g. records of water 

usage necessary to establish the right to take water 

-- As water becomes scarcer in Prior Appropriation states, new users may deprive 

installations with established water rights of water if those installations are not 

vigilant enough to file objections to applications for water rights which could 

draw down water to which the installation has an existing right 

-- In many Riparian Rights states, state and local authorities are eager to tax and 

to regulate rights which are not subject to any waiver of sovereign immunity as 

to taxation or regulation 
Environmental Law - 595 

SOLID AND HAZARDOUS WASTES

The Resource Conservation and Recovery Act (RCRA) (42 U.S.C. §§ 6901-92(k)) 

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. This includes most, if not all, Air Force 

installations. 

− Hazardous Wastes are those solid wastes that are specifically listed as hazardous or 

that exhibit a characteristic (ignitability, corrosivity, reactivity, or toxicity) that 

make them hazardous. 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. 

− RCRA creates a system that regulates and tracks HW "cradle-to-grave" 

-- HW is tracked by a manifest initiated by the generator. When waste is 

transferred to entities that transport, treat, store or dispose of it, the Uniform 

Hazardous Waste Manifest is annotated to show that it passed into their 

possession and was properly managed. 

-- Transporters must properly label HW and deliver it to a designated treatment, 

storage, and disposal (TSD) facility and must comply with Department of 

Transportation (DOT) requirements for containers, labeling, placarding of 

vehicles, and spill response 

-- RCRA also sets strict requirements for storing and handling wastes and for 

personnel training, equipment, inspections, and emergency response planning. 

Most of these requirements must be documented and the records kept for 

inspection. 

-- HW must be accumulated in accordance with specific requirements. Containers 

must be properly marked, closed, and kept secure from unauthorized access or 

tampering. 
596 – The Military Commander and the Law 

-- An initial accumulation (also called “satellite”) point is a designated location at 

or near the point of generation of HW. At this location, waste cannot exceed 55 

gallons of HW or 1 quart of acutely hazardous waste. Once this limit is 

exceeded, the container must be moved to an accumulation site or permitted 

TSD facility within 3 days. 

-- An accumulation site is 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 small quantity generators (defined by the Act and regulations), waste 

may be stored longer. 

− 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: RCRA, SUBTITLE D 

− The Act establishes minimum requirements for controlling and monitoring solid 

waste disposal. States are given responsibility for the regulation of nonhazardous 

(municipal) solid wastes. 

− 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, and ash from power plants and incinerators. 

UNDERGROUND STORAGE TANKS (USTs): RCRA, SUBTITLE I 

− The Act covers tanks, including connecting underground pipes, when the volume of 

the tank and its underground pipes is 10 percent or more 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 leaked, 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. 
Environmental Law - 597 

STATE PROGRAMS

− The Environmental Protection Agency may approve a state to regulate HW, solid 

waste, and/or USTs in lieu of the federal program. The state’s program must be at 

least as stringent as the federal requirements and can be more stringent. 

− Waivers of sovereign immunity in RCRA require federal facilities to comply with 

state and local requirements, both substantive and procedural. Congress recently 

amended the UST provision of RCRA to affect a similar waiver of sovereign 

immunity. 

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 

--- Reuse generated waste and recycle waste not reusable 

--- Employ treatment 

--- Dispose or release pollutants into the environment only as a last resort 

-- MAJCOMs will establish procedures to ensure installations develop and 

execute pollution prevention management plans. The 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. 

FEDERAL PROCUREMENT, RCRA SUBTITLE F 

− RCRA Section 6002 and Executive Order 13101 require federal agencies to 

establish an affirmative procurement program (also known as the Green 

Procurement Program) 
598 – The Military Commander and the Law 

-- 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 not limited to contracting activities, but also includes IMPAC 

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 

Section 6002 and EPA guidance when conducting RCRA inspections. 

Although the EPA has no enforcement authority, it can issue a notice of 

violation for noncompliance with RCRA Section 6002 or the EPA guidance. 

REFERENCES: 

42 U.S.C. § 6901-92 

AFI 32-7042, Solid and Hazardous Waste Compliance (12 May 1994) (under revision) 

AFI 32-7044, Storage Tank Compliance (13 November 2003) 

AFI 32-7060, Interagency and Intergovernmental Coordination for Environmental 

Planning (25 March 1994) 

AFI 32-7080, Pollution Prevention Program (12 May 1994) 

AFI 32-7086, Hazardous Material Management (1 November 2004) 

AFMAN 32-4013, Hazardous Material Emergency Planning and Response Guide (1 

August 1997) 

AFPAM 32-7043, Hazardous Waste Management Guide (1 November 1995) (under 

revision) 

OSD Memorandum, New DoD Pollution Prevention Measure of Merit (13 May 1998) 

OSD Memorandum, Establishment of the DoD Green Procurement Program (27 

August 2004) 

Memorandum, USAF/ILE, Air Force Affirmative Procurement Program (11 May 

2000) 

Memorandum, HQ USAF/ILEV, Non-Hazardous Solid Waste Diversion Rate Measure 

of Merit (MoM), (25 January 1999) 
Environmental Law - 599 

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 health or environment 

− Authorizes EPA to screen existing and new chemicals to identify potentially 

dangerous products or uses. The EPA can take action ranging from banning the 

production, import, and use of a chemical to requiring that a product bear a warning 

label. 

− Prohibits manufacturing 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. Other sources of PCBs or PCB 

contamination may be past insecticide spraying, ceiling tile coatings, and 

certain painted surfaces. 

-- Generally, installations focus on PCB elimination 

− 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, sealants 

-- The inhalation or ingestion of asbestos fibers can cause disabling or fatal 

diseases 

-- Requirements cover, among many things, remediation of asbestos hazards, 

implementation of proper work practices, and training in proper handling 

-- Installations are most likely to encounter asbestos when maintaining, repairing, 

renovating, or demolishing buildings 

-- Asbestos is also regulated by other statutes, including the Clean Air Act and the 

Occupational Safety and Health Act 

-- Air Force manages asbestos to reduce exposure to airborne asbestos fibers 
600 – The Military Commander and the Law 

− TSCA also requires studies of federal buildings to determine the extent of indoor 

radon contamination. The Act 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 

-- Radon in soil under homes is the biggest source of radon in indoor air, which 

presents serious health risks, including cancer 

-- The EPA has proposed a rule to reduce radon in drinking water 

− TSCA also addresses lead hazards, including requirements for the identification, 

reduction, disclosure, and management of lead-based paint 

-- Lead, especially lead-based paint (LBP), is a major concern on installations. 

LBP was commonly used on many buildings prior to 1950, including military 

family housing. Lead-contaminated soil and dust are also a problem. 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 

-- Lead exposure can cause serious health effects, particularly in children 

-- 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 that 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 the disclosure 

regulations related to LBP in military family housing 

REFERENCES: 

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) (w/attachment Field 

Guide, Lead-Based Paint Guidelines for Disposal of Department of Defense 

Residential Real Property, December 1999) 
Environmental Law - 601 

Memorandum, Office of the Under Secretary of Defense, Disclosure of Known LeadBased 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) 

AFI 32-1052, Air Force Facility Asbestos Management (22 March 1994) 

AFOSH Standard 48-8, Controlling Exposures to Hazardous Materials (1 September 

1977) 

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) 
602 – The Military Commander and the Law 

ENVIRONMENTAL LAW OVERSEAS

− Overseas compliance is governed by the requirements of: (1) international treaties 

and agreements; (2) the few United States laws that have extraterritorial 

application; and (3) DoD policy 

− Treaties, Status of Forces Agreements (SOFAs), and International Agreements

-- Can be ambiguous as to applicable standards since many were drafted prior to 

development of specific environmental laws in the 1970s and 1980s 

-- SOFAs and Supplemental Agreements 

--- The 1993 Supplementary Agreement with Germany contains several 

provisions that the United States is obligated to observe 

--- The U.S./South Korea SOFA includes provisions that address 

environmental protection 

-- The Basel Convention, which governs trans-boundary movement of hazardous 

wastes (HW), is applicable to the AF. The United States has signed but not 

ratified. 

--- Limits waste-handling options in countries with inadequate disposal 

facilities 

--- The Environmental Modification Convention prohibits significant 

impairment of the environment during hostilities 

− U.S. Laws 

-- Generally do not have extraterritorial application unless expressly stated 

-- The National Environmental Policy Act (NEPA) has limited overseas 

application, e.g., where a sovereign country does not assert jurisdiction 

-- Some laws have extraterritorial application, such as the National Historic 

Preservation Act 

− Executive Orders 

-- Executive Order (E.O.) 12088 directed compliance with host nation 

environmental pollution control standards of general applicability 
Environmental Law - 603 

-- E.O. 12114, as implemented by DoDD 6050.7, requires environmental analysis 

of overseas actions with potential for significant environmental impacts 

-- Environmental reviews or studies are required for major federal actions 

significantly affecting the environment of a foreign nation not involved in the 

action and for actions that produce a product that is strictly regulated in the 

United States 

-- Also required for actions that significantly affect natural and ecological 

resources of global importance and for actions that affect the global commons 

outside the jurisdiction of any nation, e.g., the oceans or Antarctica 

− DoD and Air Force Guidance 

-- DoDI 4715.5 prescribes overseas compliance rules for environmental programs 

and appoints an Environmental Executive Agent (EEA) for each host nation 

-- The Overseas Environmental Baseline Guidance Document (OEBGD) includes 

environmental management practices 

-- Sets environmental standards based on generally accepted standards for similar 

installations in the United States 

-- Provides the foundation for development of final governing standards 

-- Provides environmental compliance and conservation standards where no final 

governing standards have been established 

− Final Governing Standards (FGS)

-- Country-specific substantive standards applicable to DoD operations 

-- Based on more stringent of either: OEBGD (applicable host nation law that is 

generally enforced) and applicable international agreements (developed in a 

multi-service committee review process under the guidance and direction of 

that country’s EEA) 

-- Temporary waivers of FGS available if compliance at installation would 

--- Seriously impair operations 

--- Adversely affect relations with host nation; or 

--- Require substantial expenditure of funds for physical improvements at an 

installation that has been identified for closure or at an installation that has 

been identified for a realignment that would remove the requirement 
604 – The Military Commander and the Law 

-- Set compliance standards and priorities for environmental compliance funds 

− Cleanup/Restoration

-- For current operations, OEBGD or FGS (whichever is applicable) specifies 

management of spills and UST leaks as they occur 

− For spills that occurred from past DoD activities, DoDI 4715.8 and AFI 32-7006, 

Chapter 2, specify DoD policy 

-- Response requirements depend on whether the overseas installation is currently 

in use and is not slated for return; has been designated for return or already has 

been returned to the host country; the contamination is on base or off; and/or 

whether the site poses a known imminent and substantial endangerment 

situation 

-- Coordinate with the MAJCOM; spill cleanup can be required where there is 

imminent and substantial endangerment, when it is needed to maintain 

operations or protect human health and safety, or is required by international 

agreement. Additional cleanup may be undertaken by host nation and can 

affect residual value calculation. 

REFERENCES: 

Exec. Order. No. 12,088, Federal Compliance with Pollution Control Standards, 43 

Fed. Reg. 47,707 (13 October 1978) 

Exec. Order. No. 12,114, Environmental Effects Abroad of Major Federal Actions, 44 

Fed. Reg. 1957 (4 January 1979) 

DoDD 6050.7, Environmental Effects Abroad of Major Department of Defense Actions

(31 March 1979) 

DoDI 4715.5, Management of Environmental Compliance at Overseas Installations

(22 April 1996) 

DoDI 4715.8, Environmental Remediation for DoD Activities Overseas (2 February 

1998) 

AFI 32-7006, Environmental Program in Foreign Countries (29 April 1994) 

AFI 32-7061, The Environmental Impact Analysis Process (12 March 2003) (adopting 

32 C.F.R. Part 989, Environmental Impact Analysis Process (EIAP), as the 

controlling document on the Air Force EIAP)
International and Operations Law - 605 

CHAPTER SEVENTEEN: INTERNATIONAL

AND OPERATIONS LAW 

Introduction to International & Operations Law .......................................................606 

The Law of Armed Conflict ......................................................................................612 

Operations Law..........................................................................................................618 

Information Operations..............................................................................................619 

Rules of Engagement.................................................................................................622 

Fiscal Law During Deployments...............................................................................626 

Foreign Criminal Jurisdiction....................................................................................631
606 – The Military Commander and the Law 

INTRODUCTION TO INTERNATIONAL & OPERATIONS LAW

Commanders increasingly need to understand the legal implications of being assigned, 

deployed or involved beyond U.S. borders. Therefore, the following provides a brief 

summary of the broadest area, international law. It then provides the key rules 

associated with international agreements. Finally, it explains the terminology currently 

used to describe peace operations. 

− International law: Definition and general aspects 

-- The Law of Nations. International law is that law which governs the conduct of 

countries, also known as "states," and of recognized international organizations, 

but historically not that of individuals. Increasingly, individuals are the 

subjects of international law; primarily when considering international human 

rights law. 

-- This law is vastly different from the kind of law we are used to in the United 

States 

-- It is formed differently and the branches of government we generally associate 

with law do not exist in the same manner in the international legal system 

-- The fact that international law is different does not make it any less binding. 

Violations of international law get worldwide attention and may have 

significant international ramifications. 

− There are two main forms of international law: treaty law and customary law 

-- Treaty law is a broad category of mostly written, but sometimes oral 

agreements entered into by authorized representatives of the parties, with each 

party being either a nation or a recognized international organization 

--- The parties essentially enter into a contract over the subject matter of the 

treaty, and agree that international law shall govern the terms of the 

agreement 

--- Parties include any state and any recognized international organization; for 

example, United Nations Organization (UNO), Organization of American 

States (OAS), International Committee of the Red Cross (ICRC) 

---- Other terminology may be used to describe treaty law such as 

convention, international agreement, covenant, pact, protocol, status of 

forces agreement (SOFA), memorandum of understanding (MOU), or 

memorandum of agreement (MOA) 
International and Operations Law - 607 

---- Some agreements, though entered into between foreign entities, will not 

be governed by U.S. requirements for international agreements. For 

example, it is a U.S. requirement to report international agreements to 

Congress. See AFI 51-701, Negotiating, Concluding, Reporting, and 

Maintaining International Agreements, discussed below, to determine 

what type of international agreements fall outside of U.S. requirements. 

--- Some classic examples of treaty law 

---- United Nations Charter 

---- Disarmament Treaties 

---- NATO SOFA 

---- Outer Space Treaty 

---- Conventional Weapons Treaty 

-- Customary law which is also called international custom and customary 

international law 

--- Customary law is that form of international law created by the general and 

consistent practice of nations such that states view the practice, or custom, 

to be legally binding 

--- Customary law may take centuries to evolve, or it may be formed very 

quickly. Examples include: 

---- The 3-mile limit: This is a law of sea custom, which states that a 

country’s territorial sea extends outward three miles beyond the coast. 

Territorial sea retains all of the country’s sovereign rights, the same as if 

on land. Over the centuries this custom evolved because a nation could 

defend its territory with coastal batteries, and the cannon could fly up to 

three miles out. Today, the “treaty” rule, found in the United Nations 

Law of the Sea Convention, recognizes up to a twelve-mile limit. 

---- Outer space overflight: The customary law which states that a nation’s 

space vehicles could overfly (in outer space) the territory of other 

nations without seeking prior consent became recognized as customary 

law within a few years of Sputnik 

---- Law of Land Warfare: Those international rules we generally associate 

with the Hague Conventions of 1907 evolved as custom but were then 

codified in treaties 
608 – The Military Commander and the Law 

---- Law of the Sea: Most of the rules found in the U.N. Convention on the 

Law of the Sea, formed first as custom, were then codified in the 

Convention 

− International Agreements in the United States Air Force 

-- AFI 51-701 generally regulates this area for all Air Force personnel 

-- Remember that someone in your chain-of-command is directly responsible for 

obtaining the proper authority to negotiate and conclude international 

agreements 

-- 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 

-- The files are full of well-intending commanders who independently struck 

deals, using U.S. money to fix foreign roads, or giving old communications 

gear to the host country’s military, only to find out later they had no authority 

to act in these situations 

-- Definition of "international agreement" from AFI 51-701, Negotiating, 

Concluding, Reporting, and Maintaining International Agreements

--- Any agreement completed with one or more foreign governments or with 

international organizations 

--- 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 

--- Signifying the intention of the parties to be bound in international law 

-- Definition of "negotiation" is very broad under AFI 51-701 

--- Communication by any means of a position or offer 

--- On behalf of United States, DoD, or of any officer or organizational 

element thereof 

--- To an agent or representative of a foreign government 

--- In such detail that acceptance would result in an international agreement 
International and Operations Law - 609 

-- Bottom line: Don’t do anything that might be construed as a negotiation unless 

you have received advance authority. Note this very pointed AFI 51-701 

warning about “maverick negotiations.” 

--- "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, before obtaining the concurrence of either the 

Assistant General Counsel, International Matters and Civil Aviation 

(SAF/GCI), or the responsible staff judge advocate as set forth below" 

− Peace Operations 

-- The present trend sees more and more nontraditional deployments of U.S. 

forces to trouble spots around the globe. These operations carry with them very 

complex legal implications. 

-- Various terms describe such operations: Peace operations, military operations 

other than war (MOOTW), and preventive diplomacy 

-- Legal model: The United Nations Security Council passes an authorizing 

resolution permitting certain armed forces to expel or take action against 

international law violators 

--- The first Persian Gulf War is an example of this model 

--- This model was also used in Bosnia and Haiti 

-- In essence, the governing law for such operations, at least for the authorized 

armed forces involved, is United Nations law 

-- Legal problems develop when the operational mission takes it through a 

territory where no apparent law exists. There is a temptation to presume that 

you are the law, or that the United Nations authorizing resolution gives you 

wide latitude to do more than feed people, protect your people, or stop warring 

factions. 

--- For example, in Somalia, with the original mission being to feed people, the 

UN forces had to operate in a seemingly lawless territory. In moving food 

from the port to the famine-hit people far inland, these forces had to take 

care not to enforce criminal laws that Somali police were supposed to 

enforce. 

--- Lesson Learned: Always consult with your deployed JAG, and up the chain 

if necessary, to determine precisely under what laws you operate 
610 – The Military Commander and the Law 

− Peace Operations under Joint Publication 3-07.3, Joint Tactics, Techniques, and 

Procedure for Peacekeeping Operations

-- “Peace Operations” is an umbrella term describing operations authorized by the 

United Nations. The primary types of peace operations are peacekeeping 

operations and peace enforcement operations. 

-- Peacekeeping Operations: Authorized under Chapter VI of the U. N. Charter 

--- The term generally refers to being invited into a country by the warring 

parties 

--- Peacekeeping forces interpose themselves between enemy forces to prevent 

further fighting 

--- Rules of engagement are designed for self-defense 

-- Peace Enforcement operations: Authorized under Chapter VII of the U.N. 

Charter 

--- Enemy forces have not invited peace enforcement troops 

--- Peace enforcement means the U.N. forces must force a peace with actual 

combat likely 

--- Rules of engagement are designed for going beyond mere self-defense; 

armed with operations designed to defeat the enemy 

-- Chapter VI versus Chapter VII: The distinctions between these chapters are for 

the U.S. State Department UNO personnel to figure out. The U.N. Charter did 

not forecast the current types of military operations, so characterizing peace 

operations according to the Charter is not of great practical significance to the 

military commander. 

--- Being generally familiar with the terminology, where it came from, and 

how it describes different ROE; are the relevant aspects of this area 

-- Other Joint Publication 3-07.3 terminology 

--- Peacemaking: Diplomacy, mediation, negotiation or other forms of peaceful 

settlement 

--- Preventive diplomacy: Diplomatic actions taken in advance of a predictable 

crisis, aimed at resolving disputes before violence breaks out 

--- Peace building: Nation building 
International and Operations Law - 611 

REFERENCES: 

U.N. Charter, 26 June 1945 

Joint Pub 3-07.3, Joint Tactics, Techniques, and Procedures for Peacekeeping 

Operations (12 February 1999) 

AFI 51-701, Negotiating, Concluding, Reporting, and Maintaining International 

Agreements (6 May 1994) 
612 – The Military Commander and the Law 

THE LAW OF ARMED CONFLICT

One of the most critical subjects for today’s military is the Law of Armed Conflict 

(LOAC), also known as the Law of War. As recent events have taught us, we cannot 

assume that every airman is fully aware of all his/her rights and responsibilities under 

the Law of Armed Conflict. Now more than ever, in the complex myriad of 

operational situations in which Air Force units are involved, commanders must ensure 

their personnel are trained and comply with the LOAC. 

WHAT IS LOAC? 

− "That part of international law that regulates the conduct of armed hostilities." Joint 

Publication 1-02 (2001). 

− LOAC has two main sources: Customary international law arising out of the 

conduct of nations during hostilities and binding upon all nations; and treaty law 

(also called conventional law) arising from international treaties and only binding 

upon those nations that have ratified a particular treaty 

− LOAC treaty law is generally divided into two overlapping areas: Geneva Law 

(named for treaty negotiations held over the years at Geneva, Switzerland) and 

Hague Law (named for treaty negotiations held over the years at The Hague, 

Netherlands) 

-- Geneva Law is concerned with protecting persons involved in conflicts 

(wounded and sick; wounded, sick and shipwrecked at sea; POWs; civilians) 

-- Hague Law is concerned mainly with the means and methods of warfare (e.g., 

lawful and unlawful weapons, targeting) 

− Purposes of LOAC 

-- Limit the effects of the conflict (reduce damages and casualties) 

-- Protect combatants and noncombatants from unnecessary suffering 

-- Safeguard fundamental rights of combatants and noncombatants 

-- Prevent the conflict from becoming worse 

-- Make it easier to restore peace when the conflict is over 
International and Operations Law - 613 

− Geneva Law

-- 1949 Geneva Conventions for the Protection of War Victims consist of four 

different conventions 

--- Wounded and Sick (GWS) 

--- Wounded, Sick, and Shipwrecked at Sea (GWS Sea) 

--- Prisoners of War (GPW) 

--- Civilians (GC) 

-- The original parties to the 1949 Conventions negotiated two additional 

protocols in 1977. These protocols are not in effect for the United States, 

although the U.S. recognizes that many of their provisions reflect customary 

international law. 

--- Protocol I (International Conflicts) 

--- Protocol II (Non-International Conflicts) 

− Hague Law 

-- The Hague Peace Conferences of 1899 and 1907 resulted in the Hague 

Conventions of 1907; those conventions with continuing validity are 

--- Convention III, Relative to the Opening of Hostilities 

--- Convention IV, Respecting the Laws and Customs of War on Land with 

annexed regulations (the "Hague Regulations") 

--- Convention V, Respecting the Rights and Duties of Neutral Powers and 

Persons in Case of War on Land 

--- Convention VIII, Relative to the Laying of Automatic Submarine Contact 

Mines 

--- Convention IX, Concerning Bombardment by Naval Forces in Time of War 

-- Efforts in 1922-23 to create the Hague Rules of Air Warfare resulted in draft 

rules that never took effect, but are today viewed as reflecting, not customary 

law, but guidelines for proper conduct 

-- Other notable Hague Conventions 
614 – The Military Commander and the Law 

--- Declaration concerning Expanding Bullets (1899) 

--- Convention for the Protection of Cultural Property in the Event of Armed 

Conflict (1954) 

BASIC LEGAL PRINCIPLES OF LOAC 

− Military necessity 

-- Definition: Permits the application of only that degree of regulated force, not 

otherwise prohibited by the laws of war, required for the partial or complete 

submission of the enemy with the least expenditure of life, time, and physical 

resources 

-- Attacks must be limited to 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 

-- This principle imposes a requirement to distinguish (also termed 

"discriminate") between military objectives and civilian objects 

--- Civilian objects are such objects as places of worship, schools, hospitals, 

and dwellings 

--- Civilian objects can lose their protected status if they are used to make an 

effective contribution to military action 

--- In case of doubt whether a civilian object is being used to make an effective 

contribution to military action, the presumption should be that it is not used 

for military purposes 

-- An attacker must not intentionally attack civilians or employ methods or means 

(weapons or tactics) that would cause excessive collateral civilian casualties 

-- 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 targets. 

Failure to separate them may lead to a loss of their protected status. 

− Proportionality 

-- Those who plan military operations must take into consideration the extent of 

civilian destruction and probable casualties that will result and, to the extent 
International and Operations Law - 615 

consistent with the necessities of the military situation, seek to avoid or 

minimize such casualties and destruction. Civilian losses must be proportionate 

to the military advantages sought. 

-- The concept does not apply to military facilities and forces, which are 

legitimate targets anywhere and anytime 

-- Damages and casualties must be consistent with mission accomplishment and 

allowable risk to the attacking force (i.e., the attacker need not expose its forces 

to extraordinary risks simply in order to avoid or minimize civilian losses) 

− Humanity (also referred to as the principle of unnecessary suffering) 

-- This principle prohibits the employment of any kind or degree of force that is 

not necessary for the purposes of war, that is, for the partial or complete 

submission of the enemy with the least possible expenditure of life, time and 

physical resources 

-- Relevant Hague Regulations provisions 

--- "The right of belligerents to adopt means of injuring the enemy is not 

unlimited" (Article 22) 

--- "In addition to the prohibitions provided by special Conventions, it is 

especially forbidden 

---- To employ poison or poisoned weapons 

---- To kill or wound treacherously individuals belonging to the hostile 

nation or army 

---- To employ arms, projectiles, or material calculated to cause 

unnecessary suffering" (Article 23) 

-- Examples of lawful weapons 

--- Incendiary weapons (but see below) 

--- Fragmentation weapons and cluster bombs (CBUs) 

--- Nuclear weapons (but some international treaties forbid placement in 

certain areas – outer space, ocean seabeds, Antarctica, certain countries or 

regions) 

--- Shotguns (but must have hardened [also called "chilled"] shot) and silencers 
616 – The Military Commander and the Law 

--- Landmines (but see below) 

-- Examples of unlawful weapons 

--- Poisons or poisoned weapons 

--- Bullets that expand or flatten easily in the human body ("dum-dum" bullets) 

--- Any weapon the primary effect of which is to injure by fragments that, in 

the human body, escape detection by X-rays 

--- Indiscriminate weapons 

---- Biological and bacteriological weapons 

---- Weapons incapable of being controlled 

---- Chemical weapons (but see below) 

-- Even lawful weapons may be used unlawfully. Examples: rifles to shoot 

POWs, strafing civilians, firing on shipwrecked mariners or downed aircrews. 

− Recent treaty developments 

-- Conventional Weapons Convention of 1980 

--- Incendiary weapons are presently legal. Protocol III to the Conventional 

Weapons Convention places restrictions upon their use in certain instances. 

--- Land mines are addressed by the Conventional Weapons Convention, 

Protocol II, but it has a fairly limited scope. It primarily concerns marking 

minefields (including air-delivered mines) and removing mines at the end of 

a conflict. The United States and a number of other countries amended the 

Protocol in 1996 to require anti-personnel land mines (APLs) outside 

marked minefields to self-detonate within a limited time and to forbid nondetectable APLs. However, the Ottawa Convention (which entered into 

effect as of 16 March 1999) bans all anti-personnel land mines. The U.S. 

declined to sign the treaty because it would have required the U.S. to 

remove our minefields along the intra-Korean border, a major deterrent to a 

North Korean attack. 

--- Blinding lasers are addressed by Protocol IV of the Convention, which is 

not in effect for the United States. The Protocol is very limited in its scope; 

it only prohibits the use of lasers that are specifically designed to cause 

permanent blindness to unenhanced vision. 
International and Operations Law - 617 

-- The 1993 Chemical Weapons Convention, which entered into force 29 April 

1997, outlaws all use of chemical weapons, including self-defense. It also bans 

the use of riot control agents "as a method of warfare." The 1993 Convention 

complements, but does not replace, the 1925 Geneva Gas Protocol, which 

permits parties which had ratified the Protocol to make a reservation preserving 

their right to use chemical weapons in response to a "first use" against them; the 

1993 Convention does not permit such reservations. 

--- TWO CAVEATS 

--- The 1925 Protocol only applies to conflicts between the parties (i.e., 

international armed conflicts); the 1993 Convention applies to both 

international and non-international 

--- The 1993 Convention does not regulate "law enforcement including 

domestic riot control purposes" 

− Chivalry 

-- This principle addresses the waging of war in accord with well-recognized 

formalities and courtesies 

-- 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 or the Red Crescent (in Islamic countries). 

REFERENCES: 

DoDD 2311.01, DoD Law of War Program (9 May 2005) 

Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 5810.01B, Implementation of 

the DoD Law of War Program (25 March 2002) 

AFI 51-401, Training and Reporting to Ensure Compliance with the Law of Armed 

Conflict (19 July 1994) 

AFPD 51-4, Compliance with the Law of Armed Conflict (26 April 1993) 

Chapter 2, The Law of Aerial Warfare, and Chapter 18, Targeting and Weaponeering, 

Air Force Operations and the Law (2002) 
618 – The Military Commander and the Law 

OPERATIONS LAW

Operations Law (also called Operational Law) generally refers to those legal rules 

applicable in actual military operations. It is normally defined as that body of 

domestic, foreign, and international law that impacts upon the activities of U.S. forces 

in war and operations other than war. 

− It is a collection of diverse legal areas. It is not a unique, stand-alone body of law 

or rules; rather, it consists of existing rules that usually take on greater significance 

during military operations. 

-- Operations law includes such matters as military justice, procurement law, 

fiscal law, and legal assistance that also play a large role in the normal 

peacetime activities of the military 

-- It includes matters such as the law of armed conflict, rules of engagement, law 

of the sea, humanitarian assistance, and other areas normally associated with 

combat activities or military operations in a deployed environment. 

− A judge advocate, acting as an operations law attorney, is 

-- Available at all times to assist the command on legal issues and problems that 

arise during all phases of the operation 

-- Knowledgeable in laws and rules that are of specific importance during 

operations 

-- Granted access to JAG assistance at other levels of the command and from JAG 

offices within the military department for unique issues that may arise 

− A common assumption is that JAG advice during a military operation is limited to 

issues involving the law of war (or the law of armed conflict) 

-- Such issues are extremely important; however, most issues that arise are of a 

more mundane, yet equally important nature, such as proper authority for the 

expenditure of funds and limitations on peacekeeping operations 

-- The deployed JAG can play a crucial role in the overall success of an operation 

if the commander keeps the JAG involved in the day-to-day operations. It is 

easier to confront legal issues before the fact than to address them afterwards. 

REFERENCE: 

Air Force Operations and the Law, A Guide for Air & Space Forces, 2002 
International and Operations Law - 619 

INFORMATION OPERATIONS

Information Operations (IO) involve offensive and defensive actions covering a 

spectrum of capabilities ranging from ancient concepts of military deception to 

relatively new capabilities involving high tech computers and satellite systems. IO 

poses several legal challenges, most of which are dealt with by higher headquarters 

units. IO must comply with the applicable ROE and LOAC. 

ELECTRONIC WARFARE (EW) 

− EW gained prominence in World War II and remains one of the most important 

components of IO 

− EW consists of electronic attack (EA), electronic protection (EP), and electronic 

support (ES) 

-- EA uses electronic jamming and deception to disrupt and degrade adversary 

radar, guidance, and communications systems 

-- EP protects friendly forces and systems from enemy EA; examples of EP 

include stealth technology, chaff, and emissions control 

-- ES includes surveillance of the electromagnetic spectrum and is conducted by 

systems such as airborne early warning aircraft 

− It is important to consider possible collateral damage to civilian or neutral aviation 

before conducting EW, particularly when jamming radar and guidance systems 

MILITARY DECEPTION

− Actions intended to “deliberately mislead adversary military decision makers as to 

friendly military capabilities, intentions, and operations.” JP 3-58, 1-1. 

− The primary legal consideration in military deception is distinguishing lawful ruses 

from perfidy, a job that is often difficult and may result in ambiguity 

-- Lawful ruses may include aerial decoys, simulated damage, false radio signals, 

or false raids, such as the bombing of Norway prior to D-Day to distract Axis 

forces 

-- Perfidy involves treachery or a general failure to keep faith with an enemy; 

examples include abusing protected symbols such as the Red Cross, putting 

combatants in civilian clothes, and misusing enemy uniforms or transponder 

signals to attack 
620 – The Military Commander and the Law 

-- Otherwise lawful ruses may also become unlawful if it involves performing an 

illegal act, such as tricking the enemy into attacking their own civilians 

− Although all commanders are authorized to engage in deception operations, such 

operations are subject to special restrictions under the SROE 

INFORMATION ASSURANCE (IA) 

− IA consists of those actions designed to safeguard the “availability, integrity, 

authenticity, confidentiality, and nonrepudiation,” of information and information 

systems. AFDD 2-5, p 40. 

− Communications squadrons routinely conduct and administer IA programs 

− Most legal issues arising in IA deal with law enforcement activities and system 

administrators’ ability to monitor their respective systems; the Electronic 

Communications Privacy Act, USA PATRIOT Act, and Fourth Amendment 

control these activities 

OPERATIONS SECURITY (OPSEC) 

− OPSEC involves identifying those actions of friendly forces that can be observed 

by adversaries and used to the adversaries’ advantage, then taking steps to reduce 

the intelligence value of the adversaries’ observations 

− OPSEC is closely tied to military deception and EW 

− OPSEC is generally bound by the same legal guidelines as military deception 

PSYCHOLOGICAL OPERATIONS (PSYOP) 

− PSYOP seek to “induce, influence, or reinforce the perceptions, attitudes, 

reasoning, or behavior” of our adversary’s leaders and military forces. AFDD 2-5, 

p. 9. 

− PSYOP may only be authorized by the President or his delegee (currently the 

Assistant Secretary of Defense, Office of Special Operations and Low Intensity 

Conflict after legal review by the OSD/GC) 

− PSYOP may not be conducted against U.S. citizens 

− PSYOP must be coordinated through the Department of State and responsible 

embassy during peacetime 

− PSYOP may not engage in perfidy 
International and Operations Law - 621 

− Public Affairs teams may be used to counter PSYOP 

PHYSICAL ATTACK

− Physical attack may be considered an information operation if the target is an 

“information” target 

− The same LOAC rules and laws apply to physical attack for IO as for any other 

physical attack 

COMPUTER NETWORK OPERATIONS (CNO) 

− CNO consist of defensive measures (CND) to protect our computer systems and 

offensive measures (CNA) to disable, disrupt, or degrade the integrity, reliability, 

or accessibility of adversary computer systems 

− CNO entail significant legal considerations, obviously greater if engaging in CNA 

− USSTRATCOM and its subordinate JTF-CNO have primary responsibility for 

CNO and should be consulted before engaging in CNO 

PUBLIC AFFAIRS (PA) 

− PA is considered a component of IO by the Air Force, but is only a contributing 

activity in joint doctrine 

− PA may not intentionally deceive the Congress, U.S. citizens, or U.S. news media 

− Careful consideration must be used when involving PA in IO to ensure PA does not 

lose its credibility and, thereby, its ability to engage in counterpropaganda and 

counterdeception 

REFERENCES: 

Hague Convention No. IV, Respecting the Laws and Customs of War on Land and 

Annex Thereto, 18 Oct 1907, T.S. 539, 36 Stat. 2227.2, 2 A.J.I.L. (1908) 

Supplement 90-117 (entry into force 26 Jan 1910, for United States 27 Nov 

1909) 

JP 3-13, Joint Doctrine for Information Operations (9 October 1998) 

AFDD 2-5, Information Operations (11 January 2005) 

Air Force Operations and the Law, Chapter 24, 2002 
622 – The Military Commander and the Law 

RULES OF ENGAGEMENT

Many problems arose during the Vietnam conflict because of confusion between the 

Law of Armed Conflict (LOAC) and Rules of Engagement (ROE). As a result, the 

U.S. armed forces embarked upon a process to clarify the distinctions and to better 

educate our personnel to create ROE appropriate to the particular mission and take into 

account a number of political, military, and legal factors. This process, guided in large 

part by the U.S. Navy, led to the extremely successful ROE used in Operations Desert 

Shield and Desert Storm and to the publishing of the Standing Rules of Engagement 

(SROE) in 1994. As U.S. armed forces become involved in an ever-widening range of 

"operations other than war," the significance of appropriate ROE and their 

promulgation will only increase. 

− ROE definition from Joint Publication 1-02, DoD Dictionary of Military and 

Associated Terms. Directives issued by competent military authority which 

delineate the circumstances and limitations under which United States forces will 

initiate and/or continue combat engagement with other forces encountered. 

− The relationship between the Law of Armed Conflict and Rules of Engagement 

-- LOAC is international law that we have a legal duty to observe (infractions are 

punishable under the UCMJ) 

-- ROE are our rules - how we want to operate. They have to comply with 

LOAC, but they also are influenced by a number of critical factors 

-- ROE is always either equal in restrictiveness or more restrictive than LOAC. 

ROE can never authorize an act that is forbidden under LOAC. 

− Critical factors which may influence the promulgation of ROE 

-- Domestic law and concerns, e.g., Executive Order 11,850 limiting use of riot 

control agents 

-- National security policy (protect interests of United States and allies) 

-- Operational concerns (protection of our forces and those of our allies) 

-- International law and concerns (LOAC, status of forces agreements, host nation 

law) 

− Overall purposes of ROE 

-- To provide standing guidance during "peacetime" 
International and Operations Law - 623 

-- To control the transition from "peacetime" to "conflict" 

-- To control combat operations during conflicts 

-- To control the transition away from conflict to peacetime 

− Specific purposes of the Standing Rules of Engagement (SROE): to provide 

implementation guidance on the inherent right and obligation of self-defense and 

the application of force for mission accomplishment (SROE, Enclosure A, para. 1a) 

− ROE overview 

-- ROE need to recognize the inherent right (and obligation) of self-defense 

--- Article 51, United Nations Charter: "Nothing in the present Charter shall 

impair the inherent right of individual or collective self-defense if an armed 

attack occurs against a member of the United Nations until the Security 

Council has taken the measures necessary to maintain international peace 

and security" 

--- Standing Rules of Engagement Policy (SROE, Enclosure A, para. 2): The 

SROE do not limit a commander's inherent authority and obligation to use 

all necessary means available to take all appropriate action in self-defense 

of the commander's unit and other U.S. forces in the vicinity 

-- Different ROE must be drafted for different tasks and different levels, e.g., 

information operations, counterdrug support operations, noncombatant 

evacuation operations, domestic support operations, and 

maritime/land/air/space operations (SROE Enclosures B-J) 

-- Specific guidance for U.S. forces operating with multinational forces (SROE, 

Enclosure A, para. 1c) 

--- U.S. forces assigned under operational control (OPCON) of multinational 

force (MNF) will follow the MNF ROE unless otherwise directed by the 

President and Secretary of Defense. U.S. forces will remain assigned and 

under MNF OPCON if the combatant commander and higher authority 

determine that the MNF ROE are consistent with the SROE self-defense 

policy. 

--- When U.S. forces are under U.S. OPCON and operate in conjunction with a 

multinational force, reasonable efforts will be made to establish common 

ROE. If this is not possible, U.S. forces will exercise self-defense under the 

SROE and seek guidance from the appropriate combatant command. The 
624 – The Military Commander and the Law 

MNF command will be informed U.S. forces will be under SROE rather 

than MNF ROE. 

-- ROE need to be tailored to local circumstances and the nature and history of the 

threat and must be dynamic and changing as the mission evolves 

-- ROE may be a factor in the escalation or de-escalation of hostilities (e.g., U.S. 

Navy Freedom of Navigation [FON] exercises in the Gulf of Sidra during the 

1980s) 

-- Potential problem area: ROE may be unduly restrictive based upon erroneous 

interpretations of LOAC requirements (e.g., Rolling Thunder restrictions on 

attacks on dikes in North Vietnam, 1967-1972) 

− Transition from "Peacetime" to Conflict 

-- The SROE provide a clear transition from peacetime to conflict 

--- Peacetime: U.S. forces may only attack in self-defense 

---- Article 51, United Nations Charter 

---- Our response must be necessary and proportional (SROE, Enclosure A, 

para. 5f and 8) 

---- U.S. interpretation of self-defense arises in three instances 

----- Against the use of force ("hostile act") (SROE, Enclosure A, 

para. 5g) 

----- Against a threat of the imminent use of force ("hostile 

intent")(SROE, para. 5h) 

----- Against a continuing threat of the use of force (e.g., the U.S. 

response to the Iraqi attempted assassination of former President 

Bush) (not specifically addressed in the SROE) 

---- What or who may we defend? (Other than the United States and U.S. 

forces) (SROE, Enclosure A, para. 8c) 

----- United States nationals and property 

----- Other designated non-U.S. forces, foreign nationals and property 

("Collective self defense" only the President or Secretary of 

Defense can authorize this) (SROE, Enclosure A, para. 5c) 
International and Operations Law - 625 

--- Conflict: Attacks are restricted only by LOAC and our government's policy 

--- Those involved in promulgating ROE need to clearly identify in their 

operation plans if conflict ROE will come into effect, under what 

conditions, and on whose authority 

-- Immediate ("hot") pursuit: In self-defense, U.S. forces can pursue and engage a 

hostile force that has committed a hostile act or demonstrated hostile intent and 

remains an imminent threat. (SROE, Enclosure A, para. 8b) If in conflict, U.S. 

forces can pursue enemy forces into neighboring territory if that neighbor is 

unable or unwilling to control the illegal use of its territory 

− Considerations when preparing ROE 

-- What is the President and the Secretary of Defense’s goal? (e.g., hostage 

rescue; freedom of navigation; attack terrorist base) 

-- In order to carry out that goal, what is the mission? (e.g., warn an enemy; 

destroy bases; limited or minor attack) 

-- What is the threat? (e.g., Taliban; Iraq; Bosnian Serbs) 

-- Who else is involved? (e.g., NATO; coalition; United Nations) 

-- Are there any unique concerns? (e.g., fear of capture of U.S. forces; hostages) 

-- Who should prepare the ROE? (e.g., those familiar with the weapons and the 

systems) 

-- What are the ROE sources? (e.g., joint task force guidance; NATO; United 

Nations) 

REFERENCES: 

DoDD 2311.01, DoD Law of War Program (9 May 2005) 

Joint Publication 1-02, DoD Dictionary of Military and Associated Terms (9 May 

2005) 

Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3121.01B, Standing Rules of 

Engagement for U.S. Forces (13 June 2005) 

CJCSI 5810.01B, Implementation of the DoD Law of War Program (25 March 2002) 
626 – The Military Commander and the Law 

FISCAL LAW DURING DEPLOYMENTS

In an era marked by a rapidly-expanding operational tempo, which may involve 

deployments anywhere in the world, commanders must be aware of the basic rules 

regulating the activities U.S. forces may conduct during a deployment, and the funding 

to pay for those activities. The most significant basic concept is to distinguish between 

those items or services we may sell, grant, or loan to a foreign country (security 

assistance, which is administered by the U.S. Department of State, with assistance from 

the Department of Defense) and those activities U.S. forces conduct as part of an 

exercise in a foreign country, for which we are the primary beneficiaries and the 

foreign country receives only a minor and incidental benefit. 

− Deployment-Related Activities

-- Problems first surfaced during the Ahuas Taras (Pine Tree) exercise series in 

Central America in 1980s. The General Accounting Office investigated U.S. 

military activities and found U.S. forces had repeatedly violated basic fiscal 

restrictions, and in some cases had acted with no authority. 

-- Deployment-related activity questions usually arise during combined (U.S. and 

foreign nation) exercises that are also joint (more than one U.S. armed force 

participating) and are located outside the U.S. (although CONUS exercises 

(e.g., Partnership for Peace (PFP) exercises) may be subject to some of the 

same constraints) 

-- THE PRIMARY BENEFICIARY OF EACH ACTIVITY MUST BE THE U.S. 

FORCES INVOLVED. THE BENEFIT TO THE HOST COUNTRY MUST 

BE ONLY MINOR AND INCIDENTAL

MAJOR TYPES OF ACTIVITIES

− Construction

-- A military construction project includes all military construction work 

necessary to produce a "complete and usable facility" or a "complete and usable 

improvement to an existing facility" (10 U.S.C. § 2801). This eliminates the 

ideas of "project splitting" or "project incrementation" (a bunch of contracts 

using Operations & Maintenance (O&M) funds, each for less then $750,000, to 

accomplish a unified purpose) or "phasing" (do less than $750,000 this year and 

again next year and again the next year, etc.) 

-- Maintenance (recurrent work to prevent deterioration) and repair (restoration 

for use for a designated purpose) are not construction and not subject to these 

restrictions (although they may be subject to others) 
International and Operations Law - 627 

-- The SECDEF must give the Appropriations and Armed Forces Committees at 

least 30 days prior notice of plan and scope of any proposed exercise when 

anticipated construction expenditures (temporary or permanent) will exceed 

$100,000 

-- Unspecified Minor Military Construction (UMMC) using MILCON funds 

--- Each service has an annual "pot" (changes each year) to use for UMMC 

projects. Each service can spend no more than $5,000,000 annually on 

exercise-related construction projects coordinated or directed by the Joint 

Chief of Staff (JCS) outside the United States. 

--- Each project must have an "approved cost" equal to or less than $1,500,000. 

However, the maximum is raised to $3,000,000 for a project "intended 

solely to correct a deficiency that is "life-threatening, health-threatening, or 

safety-threatening." 

--- Funded costs include "out of pocket" expenses such as contract costs, TDY 

expenses, and the cost of fuel to operate equipment. They do not include

military pay, equipment depreciation, or other "sunk costs" (but these still 

must be reported). 

--- This activity uses military construction funds, not O&M funds 

--- It is used to create enduring improvements and structures to be used during 

future JCS operations (e.g., assault landing strips, roads, hangers, barracks) 

-- Construction of an "unspecified minor military construction project" which is 

not coordinated or directed by the JCS may be funded from exercise Operations 

& Maintenance (O&M) funds 

--- This construction is limited to $750,000 cost per project, except that not 

more than $1,500,000 may be used for a project intended solely to correct a 

deficiency that is life-threatening, health-threatening, or safety-threatening 

--- Funded costs include "out of pocket" expenses such as contract costs, TDY 

expenses, and the cost of fuel to operate equipment. They do not include

military pay, equipment depreciation, or other "sunk costs" (but these still 

must be reported). 

-- Notice must be given to Congress at least 21 days before commencing any 

project exceeding $750,000 

-- Exercise construction of "minor structures clearly of a temporary nature" may 

be funded from exercise Operations & Maintenance (O&M) funds. This is 
628 – The Military Commander and the Law 

really not "construction," since it involves unit-owned equipment that is 

shipped as part of an exercise, erected on-site, disassembled, and shipped back 

home, but it has become part of the overall "construction" controversy. 

--- GAO recognized DoD’s authority to do so in both its 1984 and 1986 Ahuas 

Tara II opinions 

--- In debating 10 U.S.C. § 2805(c), Congress took a very narrow view of 

"minor and temporary," e.g., base camp facilities such as tent platforms, 

field latrines, and range targets, must be removed at the end of the exercise 

-- Training activities (often called either Deployments for Training (DFTs) or 

Joint Combined Exchange Training (JCETs)). The purpose of these activities 

must be to train our forces, with only an incidental benefit flowing to the forces 

we train. 

---- Familiarization (interoperability) and safety training is proper, but not if 

it rises to the level normally provided by security assistance projects 

(MTTs, TATs, etc.) 

---- Special Operations Forces (including civil affairs and psyops forces) 

training of indigenous forces of "developing countries" authorized to 

pay or reimburse "incremental expenses" of the developing country 

because of Special Operations Force's own training requirements 

-- Exercise activities and conferences 

--- Military-to-military contact programs carried out by combatant 

commanders of unified commands to assist military forces of other 

countries to understand the appropriate role of military forces in a 

democratic society 

--- Training Latin American forces, the basis for LATAM SMEEs (Subject 

Matter Expert Exchanges carried out by USAF and USA) 

--- Using U.S. funds to pay for attendance of military personnel from 

developing countries at conferences, seminars, or similar meetings 

--- Developing Countries Combined Exercise Program (DCCEP) pays 

"incremental expenses" of developing countries to participate in combined 

exercises 

--- Expanded IMET (International Military Education and Training) program 

to teach defense resource management, civilian control of the military, 

military justice systems, and human rights 
International and Operations Law - 629 

--- Exchange of training and related support with a friendly foreign country or 

an international organization 

--- Military-to-military contacts program with nations of former Soviet Union 

and Eastern Europe Regional Cooperation Programs 

---- Partnership for Peace (PFP) - assistance to and cooperation with PFP 

countries 

---- Cooperative Threat Reduction with States of Former Soviet Union 

("Nunn-Lugar" Act) 

-- Humanitarian and Civic Assistance (HCA) this activity includes two types 

--- Earmarked funded HCA (using specifically appropriated funds) in 

conjunction with authorized military operations in a foreign country in 

order to promote security interests of U.S. and the foreign country, and to 

improve specific operational readiness skills of U.S. armed forces members 

who participate in the activities 

--- The Secretary of State must specifically approve the HCA to be given to 

any foreign country and SECDEF has to report HCA activities to Congress 

NLT 1 March each year 

--- HCA activities shall complement, and may not duplicate, any other form of 

social or economic assistance provided by the U.S. to the country concerned 

and must serve the basic economic and social needs of the people of the 

country 

--- Funded HCA only includes certain specified activities 

---- Medical, dental, and veterinary care provided in rural areas of a country 

(e.g., by Medical Readiness Training Exercises (MEDRETEs)) 

---- Construction of rudimentary surface transportation systems 

---- Well drilling and construction of basic sanitation facilities 

---- Rudimentary construction and repair of public facilities 

---- Detection and clearing of landmines, including necessary education, 

training, and technical assistance; however, U.S. military personnel may 

not participate in the physical detection, lifting, or destroying of 

landmines (unless for the concurrent purpose of supporting a U.S. 

military operation) or provide landmine detection and clearing 

assistance as part of a military operation that does not involve U.S. 
630 – The Military Commander and the Law 

armed forces. Note that de-mining is funded differently than HCA – it 

is funded with OHDACA, not fenced or budgeted O&M. 

---- HCA cannot be furnished to individuals or groups engaged in military 

or paramilitary activities 

--- “De Minimis" HCA. DoD can use other funding (not clearly specified) for 

minimal expenditures incurred in furnishing funded HCA. However, O&M 

funds may only be obligated for "incidental costs" of carrying out funded 

HCA. 

---- What is "incidental?" It has to meet the "reasonability" standard - i.e., 

would a reasonable person consider it "incidental to the exercise." 

---- Generally, it cannot be the sort of foreign assistance provided by the 

U.S. Agency for International Development (USAID). However, in 

certain cases U.S. forces can perform assistance and be reimbursed by 

USAID under the Economy Act. 

---- These activities should not significantly impact the deploying unit’s 

readiness training 

---- O&M funds expended for de minimis HCA should represent only a 

minor or reasonably small percentage of the exercise's total O&M funds 

---- Examples provided by Congress 

----- A unit doctor's exam of local villagers for a few hours with 

administration of several shots and issuance of some medication 

would be appropriate, but not appropriate to dispatch a medical 

team for mass inoculations 

----- Opening of an access road through trees and underbrush for 

several hundred yards would be appropriate, but asphalting of 

any roadway would not be appropriate 

REFERENCES: 

10 U.S.C. §401 

10 U.S.C. § 2801, 2805 

DoDD 2205.2, Humanitarian and Civic Assistance (HCA) Provided in Conjunction 

with Military Operations (6 October 1994) 

DoDI 2205.3, Implementing Procedures for the Humanitarian and Civic Assistance 

(HCA) Program (27 January 1995) 

Comptroller General Decisions, To the Honorable Bill Alexander, B-213137 of 1984 

(63 Comp. Gen. 422) and January 30, 1986 (unpublished) 
International and Operations Law - 631 

FOREIGN CRIMINAL JURISDICTION

Air Force members serving or deployed at overseas locations are subject to criminal 

proceedings by both the host nation (HN) and by the United States for offenses they 

have allegedly committed. Primary jurisdiction of the case is normally governed by 

the terms of the specific 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. 

− The HN has jurisdiction over the member based on territorial sovereignty 

− The United States always has court-martial jurisdiction over UCMJ offenses 

committed by its service members (the UCMJ applies “in all places”). Which 

nation gets to prosecute and retain custody of the member depends upon a variety 

of factors spelled out in the SOFA. 

− SOFAs do not protect U.S. personnel from HN jurisdiction; rather, SOFAs 

establish rules over which country can exercise jurisdiction in various situations 

-- Military commanders generally have an obligation to place U.S. personnel on 

“international hold” pending resolution of criminal cases within the HN 

-- U.S. personnel generally must be released to HN officials upon indictment by 

the HN (specific timing of release varies by country) 

-- Counsel fees may be paid on behalf of U.S. personnel; however, U.S. personnel 

may, and do, face HN criminal proceedings as well as sentencing and 

confinement in HNs 

-- Trial Observers, usually designated staff judge advocates, monitor HN criminal 

proceedings to determine whether U.S. servicemembers are receiving fair trials 

− 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 

--- The United States for crimes that are purely U.S. military offenses (e.g., 

AWOL, disrespect, and disobeying orders) 
632 – The Military Commander and the Law 

--- The 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. servicemember’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 in appropriate cases 

--- Normally the United States will 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 United States is normally obligated to take 

appropriate action against the member and to report the results to the HN 

− Civilians and Dependent Family Members Accompanying the Force

-- Civilians and dependent family members accompanying U.S. forces abroad are 

normally considered subject to the terms of the applicable SOFA 

-- While the HN may exercise its jurisdiction, the U.S. commander does not have 

UCMJ authority over these persons. Until very recently, the United States had 

no way of obtaining jurisdiction over these personnel. 

-- If the HN waives primary jurisdiction to the United States, the options of the 

commander are limited. 

-- 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’s confinement. MEJA can 

also extend jurisdiction over military personnel and contractors’ employees 

who are not normally resident in the HN. 
International and Operations Law - 633 

− Absence of a SOFA

-- 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 

servicemembers, the exercise of that jurisdiction without HN permission may 

be considered a breach of its territorial sovereignty 

-- Particular emphasis has been placed on ensuring a SOFA or other agreement is 

entered into with all HNs 

REFERENCES: 

10 U.S.C. § 805, Territorial Applicability of the Uniform Code of Military Justice 

10 U.S.C. § 1037, Counsel Before Foreign Judicial Tribunals and Administrative 

Agencies; Court Costs and Bail 

18 U.S.C. § 3261, et seq., Military Extraterritorial Jurisdiction 

DoDD 5525.1, Status of Policies Information (7 August 1979) 

AFI 51-703, Foreign Criminal Jurisdiction (6 May 1994) 

AFJI 51-706, Status of Forces Policies, Procedures, and Information (15 December 

1989) 

Index - 635 

INDEX 

A 

Absence (See Unauthorized Absence) 

Abuse

Role of AFOSI, 118 

Child, 248-250, 318-319 

Spousal, 248-250 

Accident Investigations

Boards, 392-397 

Media Relations, 382-384 

Acquired Immune Deficiency Syndrome 

(AIDS), 256 

Adverse Administrative Actions, 257 

Separations, 258 

Civilian Employees, 259 

Child Development Programs, 321-322 

Testing, 256-257 

Administrative Counselings, 26 

Administrative Demotions, 38 

Administrative Inquiries and Investigations, 

398-401 

Administrative Separation,

Enlisted, Involuntary, 72-91 

General Considerations, 72 

Board Hearings, 77 

Basis for Discharge, 80-87 

Convenience of the Government 

(Parenthood, Conditions That 

Interfere With Military Service), 80 

Defective Enlistment, 81 

Entry Level Performance or Conduct, 82 

Unsatisfactory Performance, 82 

Drug or Alcohol Abuse Rehabilitation 

Failure, 83 

Homosexual Conduct, 83 

Misconduct, 85 

Drug Abuse, 86 

National Security, 87 

Failure in Fitness Program, 87 

Types of Discharge (Honorable, General, 

UOTHC), 73 

Procedures, 75, 98 

Probation and Rehabilitation, 88-91 

Enlisted, Voluntary, 92-93 

Reservists, 

CAT A (Unit), 100 

CAT B (IMAs), 100 

Officer, 

Voluntary, 94-95 

Involuntary, 95-97 

Resignations in Lieu of Further 

Administrative Discharge Proceedings, 

98 

Admonitions, 26-34 

Adoption Reimbursement, 251-252 

Air Force Office of Special Investigations 

(AFOSI), 115-122 

Air Force Disciplinary Control Boards, 412 

Air Force Reserve (See Reserves) 

Aircraft Accidents

Investigations, 392-395 

Media Relations, 382-384 

Alcohol Abuse, 199-206 

Air Force Alcohol and Drug Abuse 

Prevention and Treatment Program, 199-

206 

Basis for Discharge, 83 

Enlisted Promotion Propriety Action, 50 

Minimum Age, 205 

Personnel Reliability Program, 276 

Allegations Against Senior Officials and 

Colonels (Or Equivalents), 402-403 

Anthrax Immunizations, 260-262 

Appeals

Article 15, 57 

Court-martial, 184 

Reports of Survey, 438 

Apprehension/Arrest

Arrest by Civil Authorities, 144 

Authority of AFOSI Agents, 119 

Area Defense Counsel (ADC), 123 

Arrest by Civil Authorities, 144 

Army and Air Force Exchange Service and 

Commissary Benefits, 216-218, 411 

Article 138 Complaints, 12-14 

Article 139 Claims, 445-447 

Article 15 (See Nonjudicial Punishment), 53-

69 

Article 31 Rights, 147-150 

Article 32

Hearing, 142 

Media Relations, 139-143 

Absent Without Leave (AWOL), 299-301 

Aviation Claims, 427-430 
636 – The Military Commander and the Law 

B

Bad Checks, 247 

Bankruptcy

Government Contractor, 467-468 

Personal, 243 

Base Closure

Civilian Personnel Issues, 549-551 

Base Housing

Business Enterprises, 408-409 

Family Day Care, 317-320 

Privatization, 464-466 

Removal From, 314 

Search and Seizure, 155 

Blood Alcohol Tests (BATs), 156 

Boards and Investigations, 

Accident, 392-397 

Aerospace, 394-395 

Financial Liability, 438-439 

Flying Evaluation, 404-406 

General, 398-401 

Ground, 395-397 

Media Relations during, 382-384 

Merit Systems Protection Board (MSPB), 

494 

Safety, 392-394 

Body Alteration/Piercing, 307-308 

C

Campaigning and Holding Public Office, 

366-367 

Carrier Recovery Claims, 431 

Comprehensive Environmental Response, 

Compensation, and Liability Act 

(CERCLA), 556, 572-576 

Chaplain Privilege, 178 

Charges

Preferral, 162-164 

Referral, 162-164 

Processing, 162-164 

Child

Abuse, 248-250 

Family Maltreatment Case Management 

Team (FMCMT), 249 

Neglect, 250 

Sexual Maltreatment Response Team, 249-

250 

Child Support, 244-245, 376-377 

Child Development Programs, 321-322 

Acquired Immune Deficiency Syndrome 

(AIDS), 321-322 

Family Day Care Homes, 317-320 

Civilian Counsel, 91, 165, 289, 405 

Civilian Personnel

Acquired Immune Deficiency Syndrome 

(AIDS), 259 

Alcohol Abuse, 204 

Appraisal Process, 520-521 

Base Closure Personnel Issues, 549-551 

Discipline, 526-530 

Drug Abuse, 197 

Drug Testing, 512-516 

Equal Employment Opportunity (EEO) 

Complaint Process, 534-545 

Family & Medical Leave Act, 543-545 

Interrogation, 531-533 

Medical Condition Affecting Performance, 

524-525 

Overview of Civilian Personnel System, 

498-501 

Sexual Harassment, 361-362 

Unacceptable Performance, 519-525 

Unemployment Compensation, 546-548 

Whistleblower Protection Act, 540-542 

Workplace Searches, 517-518 

Claims

Article 139, 445-447 

Aviation, 427-430 

Civil Air Patrol, 429 

Carrier Recovery, 431-432 

Function of the Claims Office, 8 

Hospital Recovery Claims, 443-444 

Military Claims Act, 427 

Personal Property Claims, 419-422 

Property Damage Tort Claims in Favor of 

the United States, 440-442 

Rental Car, 448-454 

Tort Claims, 423-426 

Clean Air Act, 585-588 

Clean Water Act/Safe Water Drinking Act, 

589-592 

Cleanup of Contamination From Past 

Activities, 572-576 

Collective Bargaining, 508-511 

Command Authority, 3 

Command Influence, 17-18 

Command Succession, 4 

Commander Directed Mental Health 

Evaluations, 266-270 

Commercial Activities, 407-410 

Commercial Sponsorship Program, 407 

Commissary, 215-217 

Revocation of Privileges, 312 

Computer Network, 118, 621 

Conditions on Liberty, 169 

Confidential Informants, 117 

Confidentiality and Privileged 

Communication, 178-180 

Attorney-Client, 178 

Chaplain - Penitent, 178 
Index - 637 

Spousal, 180 

Confinement, 12, 15, 33-34, 54, 68 

Pretrial, 165-168 

Conscientious Objection to Military Service, 

282-284 

Construction Funding, 459-461 

Contamination Cleanup, 572-576 

Contraband, 151-157 

Contractor

Fiscal Law During Deployments, 626-630 

Minor Military Construction, 459-461 

Personnel Authorized to Accompany Forces 

Overseas, 469-476 

Procurement Integrity, 456-458 

Unauthorized Procurement, 462-463 

Control of Toxic Substances, 599-602 

Control Rosters, 36-37 

Correctional Custody, 65 

Cultural Resource Preservation Laws, 577-

582 

Counseling

Administrative, 28 

Counterintelligence, 115-122 

Courts-Martial

Appeals, 183-184 

Court Members, 19 

Function of the Staff Judge Advocate, 7 

Jurisdiction, 111-114 

Limited Privilege Suicide Prevention 

Program, 263-265 

Media Relations, 139-143 

Post Trial Matters, 183-184 

Preferral and Processing of Charges, 162-

164 

Pretrial Agreements, 173-175 

Pretrial Confinement, 165-168 

Pretrial Restraint, 169-170 

Trial Format, 176-177 

Crime Scene Protection, 116-117 

D

Debarment, 221-222 

Defective Enlistment, 81-82 

Demonstrations, 223-225 

Demotions, 38-40 

Desertion, 299-301 

Discharges (See Administrative Discharges)

Discipline

Active Duty, 111-114 

Civilian, 108, 521-525 

Family Member, 312-314 

Reserves, 111-114 

Guard, 111-114 

Disciplinary Control Boards (See Air Force 

Disciplinary Control Boards) 

Discrimination, 342-349 

Disposal of Personal Property, 325 

Driving Privileges, 218-221 

Drug Abuse, 192-198 

Air Force Alcohol and Drug Abuse 

Prevention and Treatment Program, 

192-199 

Basis for Discharge, 86 

Civilian Drug Testing, 512-516 

Personnel Reliability Program, 275-278 

Urinalysis, 232-238 

DUI, 156-157, 202-203 

Implied Consent, 157, 217 

Suspension/Revocation of Driving 

Privileges, 218-220 

E

Electronic Reading Room, 211 

E-mail, Personal Use, 490 

Emergency Response, 382-391 

Endangered Species Act, 577-578, 595 

Enforcement Action (EA), 564-569 

Enlisted Promotion Propriety Action, 49 

Environmental Compliance Assessment and 

Management Program (ECAMP), 561-

563 

Environmental Issues

Categorical Exclusions (CATEX), 558 

Clean Air Act, 585-587, 599 

Clean Water Act/Safe Water Drinking Act, 

584-587 

Comprehensive Environmental Response, 

Compensation, and Liability Act 

(CERCLA), 572-574, 596, 600 

Contamination Cleanup, 572-575, 604 

Endangered Species Act, 577 

Enforcement Action (EA), 564-569 

Environmental Impact Statement (EIS), 

558-560 

Fees, 557-558 

Liability, 567-569 

Media Relations, 570-571 

Natural & Cultural Resources, 577-583 

NEPA, 558-560, 577-579, 602 

Noise and Land Use, 583-584 

Solid and Hazardous Wastes, 595-598 

Torts, 556 

Toxic Substances, 599-601 

Water Rights, 593-594 

Overseas, 602-604 

Overview, 554-555 
638 – The Military Commander and the Law 

Equal Employment Opportunity (EEO) 

Complaint Process, 342, 361-362, 534 

Equal Opportunity and Treatment, 342-348 

Inspector General Complaints Resolution 

Process, 349 

Espionage, 107, 109, 119, 126, 173, 657 

Ethics, 478-496 

Evidence at Courts-Martial: Use of 

Information in the PIF & Rehabilitation 

Testimony, 182 

F

Failure To Go, 159, 299 

Family & Medical Leave Act, 543-545 

Family Advocacy Program, 118, 230, 248-

250, 319, 330, 350 

Family Day Care Homes, 317-320 

Family Maltreatment Case Management 

Team (FMCMT), 249 

Family Member Misconduct, 312-313 

Federal Labor-Management Relations, 502-

507 

Federal Magistrate Program, 109-110 

Fees, Environmental, 557 

Field Sobriety Test, 156, 220 

Fifth Amendment/Miranda, 148 

Financial Responsibility, 243-426 

Financial Disclosure Forms, 480-482 

Financial Privacy, 379-380 

Fiscal Law During Deployments, 626-630 

Fitness Program, 293-298 

Commander's Checklist, 296-298 

Discharges, 72, 76-77, 83, 87, 96, 294-296 

Failure to Present a Professional Military 

Image, 295 

Flying Evaluation Boards, 393, 404-406 

For Official Use Only, 121, 207, 448 

Foreign Criminal Jurisdiction, 448, 631-633 

Foreign Gifts, 484-485 

Fraternization and Unprofessional 

Relationships, 239-240 

Free Speech, Demonstrations and Open 

Houses, 223-225 

Freedom of Information Act (FOIA), 207-

210, 400, 504, 549-550, 580 

Frequent Flyer Programs, 488-489 

G 

Games of Chance, 227, 316, 409-410 

General Court Martial Convening 

Authority, 68, 77, 78, 124, 163, 171, 172, 

286-287, 359 

Article 138 Complaints, 12 

General Duties, 15 

Grants of Immunity, 171-172 

Gifts

Foreign, 484-485 

Superiors, 483 

Use of Government Resources, 486-487 

Government Communications Systems, 490-

493 

Government ("G") Claims, 419-426 

Government Owned Vehicles

Reports of Survey, 433-439 

Grade Determinations, Officer, 305-306 

Ground Accident Investigation, 392-397 

H

Hardship Discharges, 92-94 

Hate Groups, 368 

Hazardous Wastes, 554, 556, 562, 565-567, 

574, 595-597, 602 

Hazing, 241-243 

Health Insurance Portability And 

Accountability Act (HIPAA) Privacy 

Rule, 271-274 

Homosexual Conduct, 72-74, 285-292, 344-

346, 361 

Basis for Discharge, 83-84, 288-290 

Harassment, 291-292 

Inquiries, 285 

Investigations, 288 

Recoupment, 97, 290 

Honoraria, 494 

Honorary Memberships, 495 

Hospital Recovery Claims, 443-444 

House Arrest, 169 

Household Goods Claims, 419-422, 431-432 

Humanitarian Reassignments / Deferments, 

230-231 

I

Immunity, 9-10, 126, 171-172, 532, 554 

Immunizations 

Anthrax, 260-262 

Information Operations, 619-621 

Inquiries

Administrative, 398-401 

Preliminary, 159 

Inspections/Inventories, 234-238 

Inspector General 

Complaints Resolution Process, 349-354 

Military Justice Actions, 160-161 

Installation Jurisdiction, 106-108 

International & Operations Law, 605-635 

Information Ops, 619-621 
Index - 639 

International Agreements, 606-611 

Law of Armed Conflict, 612-617 

Military Necessity, 614 

Peace Operations, 606 

Proportionality, 614 

Rules of Engagement, 622-625 

Interrogation, Civilian, 531-533 

Investigations 

Aerospace Accident, 392-397 

Conscientious Objection to Military 

Service, 282-284 

Ground Accident, 392-397 

Inspector General, 160-161, 349-354, 398-

401 

Reports of Survey, 433-444 

Safety, 392-397 

Involuntary Separation of Enlisted Members 

(See Administrative Discharges) 

J

Joint Ethics Regulation

Financial Disclosure Forms, 480-482 

Frequent Flyer Programs, 488-489 

Honoraria, 494 

Honorary Memberships, 495 

Off Duty Employment, 496 

Use of Government Communications 

Systems, 490-493 

Jurisdiction

Claims, 418 

Court-Martial, 111 

National Guard, 113 

Reservists, 112 

Retirees, 113 

Foreign Criminal, 631-634 

Installation, 106-108 

Jury Service for Military Members (Civilian 

Courts), 254 

L 

Labor Law, 497-552 

Collective Bargaining, 508-511 

Unfair Labor Practices, 502-506 

Union Representation Rights & Duties, 

503-504, 528, 53-533 

Land Use, 583-584 

Lautenberg Amendment, 279-281 

Law Enforcement, 

Posse Comitatus, 389-391 

Law of Armed Conflict, 612-617 

Legal Assistance Program, 327-340 

Ethical Considerations, 330 

Notaries, 332-334 

Powers of Attorney, 337-340 

Wills, 337-340 

Letter Of Reprimand/Counseling, 25 

Limited Privilege Suicide Prevention 

Program, 263-265 

Line of Duty Determinations, 302-304 

Loss of Veterans’ Benefits, 102-104 

M

Magistrate

Military, 124, 167 

Federal, 109-110 

Media Relations 

Aircraft Accidents, 382-384 

Environmental Incidents, 570-571 

Military Justice Matters, 139-143 

National Defense Areas, 386-387 

Memberships

Hate Groups, 368 

Honorary, 495 

Mementos, 484-487 

Mental Health Evaluations,

Commander-Directed, 266-270 

Improper Referral - Inspector General 

Complaints, 352-353 

Limited Privilege Suicide Prevention 

Program, 263-265 

Memorandum for Record (MFR), 149 

Military Housing Privatization Initiative, 

155, 465 

Military Magistrate Program, 124 

Military Necessity, 614 

Minor Military Construction Funding, 459-

461 

MWR and Nonappropriated Fund 

Instrumentalities, 411 

N

National Defense Areas, 385-387 

National Environmental Policy Act (NEPA), 

558-560 

National Guard, 186-188 

Administrative counselings, admonitions, 

and reprimands, 30 

Aviation Claims, 428 

Officer Promotion Propriety Action, 48 

Court-Martial Jurisdiction, 112-113 

National Security Cases, 125-126 

Basis for Discharge, 87 

Natural & Cultural Resource Preservation 

Laws, 577-582 

No Contact Order, 134, 169 

Noise and Land Use, 583-584 
640 – The Military Commander and the Law 

Nonappropriated Fund Instrumentalities, 

411 

Nonjudicial Punishment, 53-69 

Enlisted Promotion Propriety Action, 49 

Function of the Staff Judge Advocate, 8 

Officer and Senior NCO Selection Records, 

68-69 

Procedures, 53-59 

Remotivation Program (Correctional 

Custody), 65-66 

Supplementary Punishment Actions 

(Suspension, Mitigation, Remission, Set 

Aside), 60-62 

UIF Entries, 67-68 

Vacating Suspended Punishment, 63-64 

Notaries, 332-334 

O 

Off-Duty Employment, 496 

Officer Grade Determinations, 305-306 

Officer Separations, 94-99 

Off-Limits Establishments, 412-413 

OGE 450 (See Financial Disclosure Forms),

Open Houses, 223-225 

Operations Law, 605-633 

Operations Security (OPSEC), 620 

Of AFOSI Investigations, 116 

Outsourcing and Privatization, 464-466 

P 

Paternity Claims, 253 

Performance Reports, 43-45 

Control Roster, 37 

Performance Feedback, 43 

Referral Reports, 45 

Personal Property

Claims, 419-422 

Disposal, 323-325 

Personnel Claims Act, 419 

Personnel Reliability Program, 275-278 

Personnel Information File (PIF), 27-29 

Use as Evidence, 182 

Political Activities by Air Force Members, 

224-225 

Posse Comitatus, 389-391 

Post-Trial Matters, 183-184 

Powers of Attorney, 338-339 

Preferral, 159, 162-163 

Preliminary Inquiry into Reported Offenses, 

159 

Preparation, Preferral, and Processing of 

Charges, 162-164 

Pretrial Agreements, 173-175 

Pretrial Confinees, 167 

Pretrial Confinement

Generally, 165-168 

Hearing, 167-168 

Pretrial Restraint, 169-170 

Preventive Law Program, 335-336 

Privacy Act, 27, 211-214 

Private Organizations, 226-227 

Commercial Activities, 407-410 

Privatization, 464-466 

Privileged Communication, 178-180 

Attorney-Client, 178 

Chaplain - Penitent, 178 

Spousal, 180 

Probation and Rehabilitation, 88-91 

Procurement (See Contractors) 

Procurement Integrity, 456-458 

Professional Relationships, 239-240 

Promotion Propriety Actions, Officer, 46-48 

Property Damage Tort Claims In Favor of 

The United States, 440-442 

Proportionality, 614-615 

Psychological Operations (PSYOPS), 620-

621 

Public Affairs (See Media Relations) 

Q

Quality Force Management, 25-51 

Questioning, 147-150 

R

Raffles, 410 

Referral, of charges, 163 

Remotivation Program, 65-66 

Removal From Base Housing, 314 

Rental Vehicles

Liability for Damages, 434, 448-454 

Report of Investigation (ROI), 121-122 

Reports of Survey, 433-439 

Reprisal, 347-348 

Inspector General Complaints Resolution 

Process, 350-351 

Reserves, Air Force, 186-187 

Ability to Command Regular Air Force, 5 

Administrative Counselings, Admonitions, 

and Reprimands, 30 

Administrative Separation, 100-101 

Aviation Claims, 424 

Command Authority Over, 3 

Court-Martial Jurisdiction, 112-113. 187 

Enlisted Promotion Propriety Action, 51 

Officer Promotion Propriety Action, 48 
Index - 641 

Resignations in Lieu of Further 

Administrative Discharge Proceedings, 

98-99 

Resource Conservation and Recovery Act 

(RCRA), 574-575, 595-598 

Restriction

In Lieu of Arrest, 169-170 

Return of Military Personnel, Employees, 

and Family Members from Overseas for 

Trial, 189-191 

Right to Counsel

Administrative Demotions, 39 

Right to Financial Privacy Act, 379-380 

Rights Advisement, 147-150 

Rules of Engagement, 622-625 

S

Safe Drinking Water Act, 589-592 

Safety and Accident Investigations, 392-397 

Searches, 151-158 

Blood Alcohol Tests, 156-157 

Civilian Workplace, 517-518 

Computers, 154 

Consent, 153 

Drug Dogs, 157 

Inspections, 151-158 

Inventory, 156 

Military Magistrates, 124 

Privatized Housing, 155 

Probable Cause Determination, 152-153 

Security Violations, 119 

Selective Reenlistment, 41-42 

Senior Officials and Colonels, Misconduct 

Allegations, 346, 402-403 

Sentencing, 177 

Separations (See Administrative Separations)

Servicemembers Civil Relief Act, 369-370 

Serving as a Court Member, 19-21 

Sexual Assault Response and Prevention, 

127-134 

Sexual Assault Response Coordinator, 127-

128 

Reporting, 129132 

Restricted, 129-131 

Unrestricted, 132 

Victim Advocate, 128 

Victim Misconduct, 132-133 

Sexual Harassment, Prohibition on, 355-363 

Civilian Complainant, 361-362 

Commander's Inquiry Under 10 U.S.C. 

1561, 359 

Command Options, 362 

Military Complainant, 360-361 

SF 278 (See Financial Disclosure Forms) 

Solicitation, Commercial, 407-409 

Solid and Hazardous Wastes, 595-598 

Sonic Boom Claims, 427-428 

Special Court-Martial Convening Authority

Appoint Military Magistrates, 15, 124 

Court-Martial, 15-16, 163 

General Duties, 15-16 

Separation Authority, 16, 77 

Spouses

Abuse (See Abuse) 

Clubs, 315-316 

Uniformed Services Former Spouses' 

Protection Act, 375-378 

"Snack Bar" Funds, 414 

Staff Judge Advocate, 7-8 

Standards of Ethical Conduct, 478-479 

Steroids, 86, 232, 278 

Suicide Prevention 

Limited Privilege, 263-265 

Summary Court Officers, 323-324 

Disposal of Personal Property, 325 

Summary Court-Martial, 15 

T

Tattoos/Brands, Body Piercing, and Body 

Alteration, 307-309 

Testifying as a Witness, 22 

Accused’s right, 176 

Discouraging others from, 18 

Privileges preventing, 179-180 

Promise to testify, 174 

Threatened Airman Program, 120 

Tort Claims, 423-426 

Aviation, 427-430 

Commander Liability, 9-11 

Environmental, 556 

Hospital Recovery Claims, 443-444 

Property Damage Claims, 440-442 

Toxic Substances, 585-588, 599-600 

Transitional Compensation for Victims of 

Abuse, 136-138 

Trial Format, 

Generally, 176-177 

Article 39(a) Session, 20 

U

Unauthorized Absence, 299-301 

Unauthorized Procurement, 462-463 

Under Other Than Honorable Conditions, 

73, 84, 97, 101-102, 192, 290 

Undercover Agents, 120 

Underground Storage Tanks, 554, 585, 596 

Unemployment Compensation, 546-548 
642 – The Military Commander and the Law 

Unfavorable Information Files (UIF), 

Generally, 26, 33-35, 67-69 

LOC, LOA, or LOR, 29 

Uniform Code of Military Justice (UCMJ), 

Application to Contractors, 470 

Article 15, Nonjudicial Punishment, 33-34, 

54-69, 113, 123, 160 

Article 25, Serving as a Court Member, 19-

21 

Article 31, Rights Advisement, 55, 147-150, 

153, 235, 287 

Article 37, unlawful Command Influence, 

17-18 

Article 86, Unauthorized Absence, 299-301 

Article 138, Complaints of Wrongs, 12-14, 

223 

Article 139, Redress of Injuries to Property, 

445-447 

Inspector General, 160-161 

Physical Fitness Program, 294 

Uniformed Services Employment and 

Reemployment Rights Act (USERA), 

371-374 

Uniformed Services Former Spouses' 

Protection Act, 375-378 

Union Relations, 502-507 

Union Representation Rights & Duties, 

503-504 

Collective Bargaining, 508-511 

Unfair Labor Practices, 506-507 

Unlawful Command Influence, 17-18 

Unofficial Activities / Squadron Snack Bars, 

407, 414 

Unprofessional Relationships, 239-240 

Urinalysis Program, 232-239 

Checklist for Unit Commanders, 237-239 

Civilian Drug Testing, 512-516 

Commander-directed, 234 

Consent, 235 

Inspection Testing, 234 

Probable Cause, 235 

Use of Government Communications 

Systems, 490-493 

Use of Government Resources for Mementos 

and Gifts, 486-487 

V

Veterans’ Benefits - Loss of, 102-103 

Victim and Witness Assistance Program, 

135-136 

Victims, 

Domestic Abuse, 248-250 

Equal Opportunity, 342-248 

Releasing Identity to Media, 141-142 

Sexual Assault, 127-134 

Sexual Harassment, 355-363 

Transitional Compensation, 137-138 

Voir Dire, 20 

Voluntary Separation of Enlisted Members 

Prior to Expiration of Term of Service, 

92-93 

Volunteer Services, 415-416 

W 

Water Rights, 593-594 

Weapons, 

Deployed Contractor Use, 473-474 

Inspection for Unauthorized Weapons, 155-

156 

Lautenberg Amendment, 279-281 

Use by AFOSI, 120 

Weingarten Rights, 504, 528, 531-533 

Whistleblower Protection Act, 535-537 

Wills, 337-340 

Witness, 

Testifying as a Witness, 22 

Victim and Witness Assistance Program, 

135-136 

Administrative Inquiries and Investigations, 

398-401 

Workplace Searches, 151-153, 517-518