the actual cost of transportation of the supplies from end of ship's tackle at the United States port of loading to end of ship's tackle at port of discharge, correctly assessed at the time of loading by the carrier for freight on a weight, measurement or unit basis, and free of any other charges.

(2) The voluntary non-profit relief agencies which qualify under this section may apply to the Office of the Chief of Civil Affairs, Department of the Army, Washington, DC 20310, for authorization to make shipments via Military Sea Transportation Service vessels, in conformity with this section. Upon approval of the request, the Chief of Civil Affairs will issue a Department of Army Approved Part Program authorizing shipment from a designated Port of Embarkation to end of ship's tackle at port of discharge, and including fund citation for reimbursement of Chief of Transportation. All costs of inland transportation are to be borne by the voluntary agencies.

may

(d) Refund by agencies. Any agency reimbursed under this section will refund promptly to the Department of the Army upon demand the entire amount reimbursed (or such lessor amount as the Department demand) whenever it is determined that the reimbursement was improper as being in violation of any of the provisions of the Foreign Assistance Act of 1948, any acts amendatory thereof or supplemental thereto, any relevant appropriation acts, or any rules, regulations or procedures of the Department of the Army.

(e) Saving clause. The Secretary of the Army may waive, withdraw, or amend at any time or from time to time any or all of the provisions of this section.

(Interpret or apply Title II, sec. 112, 75 Stat. 719, 22 U.S.C. 2366 note) [27 FR 177, Jan 6, 1962]

PART 503-APPREHENSION AND RESTRAINT

Sec.

503.1 Persons not subject to military law. 503.2 Delivery to civil authorities.

Persons not subject to military law may be apprehended or restrained by members of the Department of the Army, other than in foreign countries, as follows:

(a) General. All members of the Department of the Army having the ordinary right and duty of citizens to assist in the maintenance of the peace. Where, therefore, a felony or a misdemeanor amounting to a breach of the peace is being committed in his presence, it is the right and duty of every member of the military service, as of every civilian, to apprehend the perpetrator.

(b) Restraint. The restraint imposed under the provisions of paragraph (a) of this section will not exceed that reasonably necessary, nor extend beyond such time as may be required to dispose of the case by orderly transfer of custody to civil authority or otherwise, under the law.

(c) Ejection. Persons not subject to military law who are found within the limits of military reservations in the act of committing a breach of regulations, not amounting to a felony or a breach of the peace, may be removed therefrom upon orders from the commanding officer and ordered by him not to reenter. For penalty imposed upon reentrance after ejection, see title 18, United States Code, section 1382.

(Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012) [28 FR 2732, Mar. 20, 1963]

§ 503.2

Delivery to civil authorities.

(a) Authority. Any commanding officer exercising general court-martial jurisdiction or commanding officer designated by him may, in accordance with the Uniform Code of Military Justice, Article 14 (10 U.S.C. 814), authorize the delivery of a member of the Armed Forces under his command, when such member is accused of a crime or offense made punishable by the laws of the jurisdiction making the request, to the civil authorities of the United States, a State of the United States, or a political subdivision thereof under the conditions prescribed in this section.

(b) Policy. The policy of the Department of the Army is that commanding officers will cooperate with civil authorities and, unless the best interests of the service will be prejudiced thereby, will deliver a member of the Armed Forces to such authorities upon presentation of a proper request accompanied by reliable information showing that there is reasonable cause to believe that the person requested has committed a crime or offense made punishable by the laws of the jurisdiction making the request. A person will not be shielded from a just prosecution by the civil authorities solely because of his status as a member of the Armed Forces. In determining whether a member of the Armed Forces should be delivered to the civil authorities, the commanding officer will exercise his sound discretion in the light of the facts and circumstances of each particular case. Among other pertinent matters, he should consider the seriousness of the offense charged, whether court-martial charges are pending against the alleged offender, whether he is serving a sentence imposed by court-martial, and whether, under the existing military situation, the best interest of the service warrant his retention in the Armed Forces. With respect to extradition process, military personnel may be considered to be in the same status as persons not members of the Armed Forces. It is contrary to the general policy of the Department of the Army to transfer military personnel from a station within one State to a station within another State for the purpose of making such individuals amenable to civilian legal proceedings. Accordingly, if the delivery of a member of the Army is requested by a State other than the State in which he is located, the authorities of the requesting State will be required to complete extradition process according to the prescribed procedures to obtain custody of an individual from the State in which he is located and to make arrangements to take him into custody there.

(c) Requirements for delivery. There ordinarily will be required with each application by the civil authorities for the surrender of a member of the

Armed Forces a copy of an indictment, presentment, information, or warrant, together with sufficient information to identify the person sought as the person who allegedly committed the offense charged and a statement of the maximum sentence which may be imposed upon conviction. If the request for delivery is based upon an indictment, presentment, or information, it will be assumed that there is reasonable cause to believe that the offense charged was committed by the person named therein. If the request for delivery is based upon a warrant, the commanding officer may cause an inquiry to be made to satisfy himself that reasonable cause exists for the issuance of the warrant; however, if a warrant is accompanied by the statement of a United States attorney or the prosecuting officer of a State of the United States or political subdivision thereof that a preliminary official investigation of the offense charged shows that there is reasonable cause to believe that the offense charged was committed by the person named therein, no further inquiry need be made.

(d) Retaining custody pending request for delivery. If the commanding officer specified in paragraph (a) of this section is in receipt of a statement of a United States attorney or the prosecuting officer of a State of the United States or a political subdivision thereof that there is reasonable cause to believe that a member of the Armed Forces under his command has committed an offense punishable by the laws of the pertinent jurisdiction, the commanding officer may, upon the request of such civil official, agree to retain the alleged offender in his command for a reasonable period of time, not extending beyond the termination of his current enlistment or period of service, pending presentation of a request for delivery accompanied by the evidence indicated in paragraph (c) of this section.

(e) Action by commanding officers. Commanding officers, other than those specified in paragraph (a) of this section, will refer such requests with their recommendation for disposition to the appropriate commanding officer, who, after determining the propri

ety of the request, will take the action indicated in this paragraph. If the commanding officer having authority to deliver denies a request for delivery of an offender to the civil authorities, he will immediately forward the request direct to The Judge Advocate General, together with his reasons for denying the request. In cases involving special circumstances, the commanding officer having authority to deliver may forward the request with his recommendation for disposition direct to The Judge Advocate General for advice before taking his action.

(f) Procedure for executing delivery. When the commanding officer specified in paragraph (a) of this section authorizes the delivery of a person to the civil authorities, he will inform the appropriate requesting agency or official of the time and place of delivery. In addition, he will advise the requesting agency or official that delivery of the person will be made at no expense to the Department of the Army and with the understanding that the civil agency or official will advise the delivering commander of the outcome of the trial and, if the Army authorities desire to return the person, will deliver him to the place of original delivery or to an Army installation nearer the place of civil detention, as may be designated by the Army authorities, at no expense to the Department of the Army. A written receipt, in substantially the following form, should be executed by the official who takes delivery of the accused:

In consideration of the delivery of (Grade and name)

at

(Place

(State of) of delivery) for trial upon the charge of hereby agree, pursuant to the authority vested in me as (Official designation) that the commanding officer of - (General court-martial jurisdiction) will be informed of the outcome of the trial and that will be returned to the Army authorities at the aforesaid place of delivery or to an Army installation nearer the place of civil detention, as may be designated by the authorities of the Department of the Army, without expense to such Department or to the person delivered, immediately upon dismissal of the charges or completion of the trial in the

event he is acquitted, or immediately upon satisfying the sentence of the court in the event he is convicted and a sentence imposed, or upon other disposition of the case, unless the Army authorities shall have indicated that return is not desired.

The above agreement is substantially complied with when the civil agency or official advises the delivering commander of the outcome of the trial of the alleged offender and of his prospective release to the Army authorities, and the individual is furnished transportation and necessary cash to ! cover his incidental expenses en route to an installation designated by Army authorities.

(g) Return to Army control. Upon being advised of the outcome of the trial or other disposition of the charges against the alleged offender, the commanding officer specified in paragraph (a) of this section will, if return is desired, inform the appropriate civil agency or official of the name and location of the Army installation to which such person is to be delivered. Either the place of original delivery or an installation nearer the place of civil detention of the offender may be designated in accordance with existing policies governing assignments and transfers of personnel.

(Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012) [28 FR 2732, Mar. 20, 1963]

(a) Purpose. This regulation provides DA policies, procedures, and restrictions governing access to and disclosure of financial records maintained by financial institutions during the conduct of Army investigations or inquiries.

(b) Applicability and scope. (1) This regulation applies to all DA investigative activities conducted by the Active Army, the Army National Guard, and the US Army Reserve.

(2) The provisions of 12 U.S.C. 3401 et seq. do not govern obtaining access to financial records maintained by financial institutions located outside of the states or territories of the United States, Puerto Rico, the District of Columbia, Guam, American Samoa, or the Virgin Islands. The procedures outlined in § 504.2(d)(4) will be followed in seeking access to financial information from these facilities.

(3) This regulation applies only to financial records maintained by financial institutions as defined in § 504.1(c)(1).

(c) Explanation of terms. For purposes of this regulation, the following terms apply:

(1) Financial institution. Any office of a

(i) Bank.

(ii) Savings bank.

(iii) Credit card issuer as defined in section 103 of the Consumers Credit Protection Act (15 U.S.C. 1602(n)).

(iv) Industrial loan company. (v) Trust company.

(vi) Savings and loan association. (vii) Building and loan association. (viii) Homestead association (including cooperative banks).

(ix) Credit union.

(x) Consumer finance institution. This includes only those offices located in any State or territory of the United States, or in the District of Columbia, Puerto Rico, Guam, American Samoa, or the Virgin Islands.

(xi) Military banking contractors located outside the States or territories of the United States or the District of Columbia, Puerto Rico, Guam, American Samoa, or the Virgin Islands.

(2) Financial record. An original record, its copy, or information known to have been derived from the original

record held by a financial institution, pertaining to a customer's relationship with the financial institution.

(3) Person. An individual or partnership of five or fewer individuals. (Per DODD 5400.12.)

(4) Customer. Any person or authorized representative of that person

(i) Who used or is using any service of a financial institution.

(ii) For whom a financial institution is acting or has acted as a fiduciary for an account maintained in the name of that person.

(5) Law enforcement inquiry. A lawful investigation or official proceeding that inquires into a violation of, or failure to comply with, a criminal or civil statute or any enabling regulation, rule, or order issued pursuant thereto.

(6) Army law enforcement office. Any army element, agency, or unit authorized to conduct investigations under the Uniform Code of Military Justice or Army regulations. This broad definition of, Army law enforcement office includes military police, criminal investigation, inspector general, and military intelligence activities conducting investigations of violations of law or regulation.

(7) Personnel security investigation. An investigation required to determine a person's eligibility for access to classified information, assignment or retention in sensitive duties, or other designated duties requiring such investigation. Personnel security investigation includes investigations of subversive affiliations, suitability information, or hostage situations conducted to make personnel security determinations. It also includes investigations of allegations that

(i) Arise after adjudicative action, and

(ii) Require resolution to determine a person's current eligibility for access to classified information or assignment or retention in a sensitive position. Within DA, personnel security investigations are conducted by the Defense Investigative Service.

(d) Policy—(1) Customer consent. It is DA policy to seek customer consent to obtain a customer's financial records from a financial institution unless doing so would compromise or harm

(ii) Described the specific records to be examined.

(iii) State that access is sought in connection with a legitimate law enforcement inquiry.

(iv) Describe the nature of the inquiry.

(v) Be signed by the head of the law enforcement office or a designee (persons specified in § 504.1(e)(2)).

(3) At the same time or before a formal written request is issued to a financial institution, a copy of the request will be personally served upon or mailed to the customer's last known address unless a delay of customer notice has been obtained under § 504.2(i). The notice to the customer will be

(i) In a format similar to Appendix E.

(ii) Personally served at least 14 days or mailed at least 18 days before the date on which access is sought.

(4) The official who signs the customer notice is designated to receive any challenge from the customer.

(5) The customer will have 14 days to challenge a notice request when personal service is made, and 18 days when service is by mail.

(6) The head of the law enforcement office initiating the formal written request will set up procedures to insure that no access to financial records is attempted before expiration of the above time periods

(i) While awaiting receipt of a potential customer challenge, or

(ii) While awaiting the filing of an application for an injunction by the customer.

(7) Proper preparation of the formal written request and notice to the customer requires preparation of motion papers and a statement suitable for court filing by the customer. Accordingly, the law enforcement office intending to initiate a formal written request will coordinate preparation of the request, the notice, motion papers, and sworn statement with the supporting staff judge advocate. These documents are required by statute; their preparation cannot be waived.

(8) The supporting staff judge advocate is responsible for liaison with the proper United States Attorney and United States District Court. The re

questing official will coordinate with the supporting staff judge advocate to determine whether the customer has filed a motion to prevent disclosure of the financial records within the prescribed time limits.

(9) The head of the law enforcement office (§ 504.2(f)(2)) will certify in writing (see App. C) to the financial institution that such office has complied with the requirements of 12 U.S.C. 3401 et seq.

(i) When a customer fails to file a challenge to access to financial records within the above time periods, or

(ii) When a challenge is adjudicated in favor of the law enforcement office. No access to any financial records will be made before such certification is given.

(g) Emergency access. (1) In some cases, the requesting law enforcement office may determine that a delay in obtaining access would create an imminent danger of—

for

(i) Physical injury to a person, (ii) Serious property damage, or (iii) Flight to avoid prosecution. Section 504.2(g)(2)(3) provides emergency access in such cases of imminent danger. (No other procedures in this regulation apply to such emergency access.)

(2) When emergency access is made to financial records, the requesting official (§ 504.1(e)(2)) will—

(i) Certify in writing (in a format similar to that in App. C) to the financial institution that the provisions of 12 U.S.C. 3401 et seq. have been complied with as a prerequisite to obtaining access.

(ii) File with the proper court a signed, sworn statement setting forth the grounds for the emergency access within 5 days of obtaining access to financial records.

(3) After filing of the signed, sworn statement, the official who has obtained access to financial records under this paragraph will

(i) Personally serve or mail to the customer a copy of the request to the financial institution and the following notice, unless a delay of notice has been obtained under § 504.2(i):