# Sexual Assault Prevention and Response (SAPR) Program Procedures > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-21874 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** September 27, 2016 - **Citation:** 81 FR 66424 ## Text DEPARTMENT OF DEFENSE Office of the Secretary [DOD-2008-OS-0100; 0790-AI36] 32 CFR Part 105 Sexual Assault Prevention and Response (SAPR) Program Procedures AGENCY: Department of Defense (DoD). ACTION: Interim final rule; amendment. SUMMARY: This rule contains amendments to an interim final rule published in the Federal Register on April 11, 2013, which provided guidance and procedures for the SAPR Program. This included establishing the processes and procedures for the Sexual Assault Forensic Examination (SAFE) Kit; establishing the multidisciplinary Case Management Group (CMG), providing guidance on how to handle sexual assault; and establishing minimum program standards, training requirements, and requirements for the DoD Annual Report on Sexual Assault in the Military. This rule adds amendments from the National Defense Authorization Act (NDAA) for Fiscal Year 2016, which contains a provision that preempts state laws that require disclosure of personally identifiable information (PII) of the adult sexual assault victim or alleged perpetrator to local or state law enforcement. This interim final rule implements this provision with respect to care sought at DoD Installations. DATES: Effective Date: This rule is effective September 27, 2016. Comments must be received by November 28, 2016. ADDRESSES: You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) number and title, by any of the following methods: • Federal Rulemaking Portal: http://www.regulations.gov . Follow the instructions for submitting comments. • Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate of Oversight and Compliance, 4800 Mark Center Drive, Mailbox #24, Alexandria, VA 22350-1700. Instructions: All submissions received must include the agency name and docket number or RIN for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information. FOR FURTHER INFORMATION CONTACT: Diana Rangoussis, Senior Policy Advisor, DoD Sexual Assault Prevention and Response Office (SAPRO), (571) 372-2648. SUPPLEMENTARY INFORMATION: Summary of the Major Amendments to the Final Rule This rule amends the interim final rule published in the Federal Register on April 11, 2013 (78 FR 21716-21747) by: (a) Incorporating Secretary of Defense policy initiatives in furtherance of the Department's continuous goal to eliminate sexual assault through the focus efforts of leadership to include: • CMG Chair inquiry into incidents of retaliation involving the victim, witnesses, bystanders (who intervened), SARC, SAPR VA, or responders; • Specialized training for all supervisors (officer, enlisted, civilian) that explain requirement to protect victim from retaliation, reprisal, ostracism, and maltreatment; what constitutes retaliation, reprisal, ostracism, and maltreatment; list of resources available for victims to report instances of retaliation, reprisal, ostracism, or maltreatment. (b) Incorporating NDAA FY14 requirements for updated SAPR training standards for Service members, which include specific standards for: Accessions, annual, professional military education and leadership development training, pre- and post-deployment, pre-command, General and Field Officers and SES, military recruiters, civilians who supervise military, and responders (to include legal assistance attorneys) training; (c) Incorporating NDAA FY15 requirement for training on the new military rule of evidence (MRE) 513 that established the victim advocate privilege in UCMJ cases; (d) Establishing requirements for a sexual assault victim safety assessment and the execution of a high-risk team to monitor cases where the sexual assault victim's life and safety may be in jeopardy; (e) Elevating SAPR oversight to senior leadership through an eight-day incident report in response to Unrestricted Report of sexual assault; (f) Establishing a special victim capability to provide legal representation to victims of sexual assault; (g) Incorporating NDAA FY13 requirements to retain or recall to active duty reserve component members who are victims of sexual assault while on active duty; (h) Requiring the Department of Defense to establish a record on the disposition of any Unrestricted Report of sexual assault; (i) Incorporating NDAA requirement to post and widely disseminate SAPR information available to report and respond, including hotline and Internet Web sites; (j) Requiring that commanders conduct a command assessment within 120 days of assumption of command; (k) Establishing requirement for a general or flag officer review of and concurrence in the separation of a victim of sexual assault making an Unrestricted Report from the Armed Forces; (l) Providing notification to Armed Forces members completing Standard Form 86 of the Questionnaire for National Security Positions the ability to answer “no” to question 21 if the individual is a victim of sexual assault and consultation occurred strictly in relation to the sexual assault. (m) Preempting state and local laws requiring disclosure of PII of the service member (or adult military dependent) victim or alleged perpetrator to state or local law enforcement agencies, unless such reporting is necessary to prevent or mitigate a serious and imminent threat to the health and safety of an individual, as determined by an authorized Department of Defense official. Interim Final Rule Justification The Department of Defense is publishing this rule as interim to maintain and enhance the current SAPR program which elucidates the prevention, response, and oversight of sexual assaults involving members of the U.S. Armed Forces and Reserve Component, to include the National Guard. Until this interim final rule is published, DoD is limited in its ability to properly address issues associated with sexual assault such as minimal leadership involvement, hostile command environment, retaliation, ostracism, and maltreatment. For example, until this rule is published: • Sexual assault victims do not have the ability to receive legal assistance from Special Victims Counsel (SVC) and Victims' Legal Counsel (VLC). • Victims of sexual assault regardless of their geographic location will not have the option of a restricted report. This reporting option allows victims to confidentially disclose the assault to specified individuals ( i.e., Sexual Assault Response Coordinator (SARC), Sexual Assault Prevention and Response Victim Advocate (SAPR VA), or healthcare personnel), receive medical treatment, including emergency care, counseling, and be assigned a SARC and SAPR VA, without triggering an official investigation. • State and local laws are not preempted and would require disclosure of PII of the service member (or adult military dependent), a victim or the alleged perpetrator. • Military members who are sexually assaulted cannot receive the ability to request an Expedited Transfer as a means to getting a `fresh start' to support the victim's recovery. • Reserve Component and National Guard members who are victims of sexual assault will not receive the same SAPR advocacy regardless of when the sexual assault incident occurred, similar to the advocate support afforded their active duty counterparts. Background The authorities for this rule are based on the following: (1) Incorporates all applicable congressional mandates from Public Laws 112-239, 113-66, 113-291, 114-92 and all applicable policy guidance from the IG, DoD; GAO; DoD Task Force on Care for Victims of Sexual Assault; and Defense Task Force on Sexual Assault in the Military Service (DTFSAMS); (2) Establishes the creation, implementation, maintenance, and function of DSAID, an integrated database that will meet congressional reporting requirements, support Service SAPR program management, and inform DoD SAPRO oversight activities; (3) Increases the scope of applicability of this part by expanding the categories of persons covered by this part to include: (i) National Guard (NG) and Reserve Component members who are sexually assaulted when performing active service, as defined in 10 U.S.C. 101(d)(3), and inactive duty training. If reporting a sexual assault that occurred prior to or while not performing active service or inactive training, NG and Reserve Component members will be eligible to receive timely access to SAPR advocacy services from a Sexual Assault Response Coordinator (SARC) and a SAPR Victim Advocate (SAPR VA). They also have access to a Special Victim Counsel and are eligible to file a Restricted or Unrestricted Report. Additionally, the Reserve Component members can report at any time and do not have to wait to be performing active service or be in inactive training to file their report. (ii) Military dependents 18 years of age and older who are eligible for treatment in the military healthcare system (MHS), at installations in the continental United States (CONUS) and outside the continental United States (OCONUS), and who were victims of sexual assault perpetrated by someone other than a spouse or intimate partner. (iii) Adult military dependents who may file unrestricted or restricted reports of sexual assault. (iv) The Family Advocacy Program (FAP), consistent with DoDD 6400.1 1 and DoD Instruction (DoDI) 6400.06, 2 which covers adult military dependent sexual assault victims who are assaulted by a spouse or intimate partner and military dependent sexual assault victims who are 17 years of age and younger.) 1 Available: http://www.dtic.mil/whs/directives/corres/pdf/640001p.pdf . 2 Available: http://www.dtic.mil/whs/directives/corres/pdf/640006p.pdf . (4) Non-military individuals who are victims of sexual assault who are only eligible for limited emergency care medical services at a military treatment facility, unless that individual is otherwise eligible as a Service member or TRICARE ( http://www.tricare.mil ) beneficiary of the military health system to receive treatment in a military medical treatment facility (MTF) at no cost to them. They are only eligible to file an Unrestricted Report. They will also be offered the limited SAPR services to be defined as the assistance of a SARC and SAPR VA while undergoing emergency care OCONUS. These limited medical and SAPR services shall be provided to: (i) DoD civilian employees and their family dependents 18 years of age and older when they are stationed or performing duties OCONUS and eligible for treatment in the MHS at military installations or facilities OCONUS. These DoD civilian employees and their family dependents 18 years of age and older only have the Unrestricted Reporting option. (ii) U.S. citizen DoD contractor personnel when they are authorized to accompany the Armed Forces in a contingency operation OCONUS and their U.S. citizen employees. DoD contractor personnel only have the Unrestricted Reporting option. Additional medical services may be provided to contractors covered under this part in accordance with DoDI 3020.41 3 as applicable. 3 Available: http://www.dtic.mil/whs/directives/corres/pdf/302041p.pdf . (5) Service members who are on active duty but were victims of sexual assault prior to enlistment or commissioning are eligible to receive SAPR services under either reporting option. The DoD shall provide support to an active duty Service member regardless of when or where the sexual assault took place. Authority: The authorities for these changes are provided by the following. • Public Law 114-92, National Defense Authorization Act for Fiscal Year 2016 which preempts state and local laws requiring disclosure of PII of the service member (or adult military dependent) victim or alleged perpetrator to state or local law enforcement agencies, unless such reporting is necessary to prevent or mitigate a serious and imminent threat to the health and safety of an individual, as determined by an authorized Department of Defense official. • Public Law 113-291, Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 which provides —Access of Special Victims' Counsel to member of Reserve and National Guard. —Modification of DoD policy on retention of evidence in a sexual assault case whereby victim's property returned upon completion of related proceedings. —Modification of Military Rules of Evidence 513 whereby victim-psychotherapist privilege extended to other mental health providers. —Analysis and assessment of disposition of most serious offenses identified in Unrestricted Reports on the Annual Report on Sexual Assaults in the Armed Forces. —Limited use of certain information on sexual assaults in Restricted Reports by military criminal investigative organizations. • Public Law 112-239, National Defense Authorization Act for Fiscal Year 2013 which —Establishes special victim capabilities within DoD to respond to allegations of certain special victim offenses. —Enhances training and education for sexual assault prevention and response: commander training and 14-day notice of SAPR program to new Service members. —Creates or Authorities Armed Forces Workplace and Gender Relations Surveys. —Requires General or Flag officer review of a member of the Armed Forces separation after making an Unrestricted Report of sexual assault. • Public Law 113-66, National Defense Authorization Act for Fiscal Year 2014 which —Prohibits retaliation against members of the Armed Forces for reporting a criminal offense. —Requires temporary administrative reassignment or removal of alleged offender. —Requires retention of forms in connection with Restricted Reports for 50 years. —Elevates oversight to senior leadership through an eight-day incident report in response to an Unrestricted Report in which the victim is a member of the Armed Forces. —Requires discharge or dismissal for certain sex-related offenses and trial of such offenses by general courts-martial. —Requires notification to members of the Armed Forces the ability to answer “no” to question #21 when completing Standard Form 86 of the Questionnaire for National Security Positions when consultation occurred strictly in relation to the sexual assault. III. Costs and Benefits For Fiscal Year 2015, the preliminary estimate of the anticipated costs associated with this rule is approximately $15 million. Additionally, each Military Services must establish its own SAPR budget for the programmatic costs arising from the implementation of the training, prevention, reporting, response, and oversight requirements established by this rule. The anticipated benefits associated with this rule include the following. (1) Requires medical care and SAPR services be gender responsive, trauma informed, culturally competent and recovery oriented. This includes requirements to assign at least one full-time sexual assault medical forensic examiner to each military treatment facility with an 24-hour emergency department. (2) Requires both Unrestricted and Restricted Reports to be retained for 50 years to preserve the historical record of a sexual assault victims case for future claims for support or medical services. (3) Allows a commander authority to temporarily reassign or remove subject from current assignment for the purposes of maintaining good order and discipline. (4) Protects Military Service members who file Unrestricted or Restricted Reports of sexual assault from reprisal, or threat of reprisal, for filing a report. (5) Expands the applicability of SAPR services to military dependents 18 years and older who have been sexually assaulted and giving the option of both reporting options (6) Supports to an active duty Military Service member regardless of when or where the sexual assault took place. (7) Mandates training standards for legal assistance attorneys in performance of their role as SVCs/VLCs. (8) Establishes “victim advocate privilege” through implementation of Executive Order 13593 establishing a new military rule of evidence (MRE) 514 which ensures the communications between a sexual assault victim and victim advocate is protected from disclosure. (9) Addresses sexual assault victims safety concerns through the administering of a “safety assessment” by trained first responders. (10) Increases efforts to effect change in the military culture by improving SAPR training standards specifically targeting accessions, annual, professional military education and leadership development, pre and post deployment, pre command, senior leadership (military and civilian), military recruiters, and responders. Regulatory Procedures Executive Order 12866, “Regulatory Planning and Review” and Executive Order 13563, “Improving Regulation and Regulatory Review” It has been determined that this rule does not: (a) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities; (b) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; or (c) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof. However, it has been determined that this rule does raise novel legal or policy issues arising out of legal mandates, and the principles set forth in these Executive Orders. Sec. 202, Public Law 104-4, “Unfunded Mandates Reform Act” It has been certified that this rule does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year. Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601) It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule provides guidance and procedures for the DoD SAPR Program only. Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35) Section 105.15 of this interim final rule contains information collection requirements. These collection requirements have been assigned OMB Control Number 0704-0482, “Defense Sexual Assault Incident Database.” The System of Records Notice for the rule is available at http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570559/dhra-06-dod The Privacy Impact Assessment associated with this rule is available at http://www.dhra.mil/webfiles/docs/Privacy/PIA/DHRA.06.SAPRO.DSAID.7.15.2015.pdf or http://www.dhra.mil/Website/headquarters/info/pia.shtml . Executive Order 13132, “Federalism” It has been certified that this rule does have federalism implications, as set forth in Executive Order 13132, because it incorporates the pre-emption language in section 536 of Public Law 114-92, which preempts state and local laws requiring disclosure of personally identifiable information of the service member (or adult military dependent) victim or alleged perpetrator to state or local law enforcement agencies, unless such reporting is necessary to prevent or mitigate a serious and imminent threat to the health and safety of an individual, as determined by an authorized Department of Defense official. This rule does have substantial direct effects on: (a) The States; (b) The relationship between the National Government and the States; or (c) The distribution of power and responsibilities among the various levels of Government. List of Subjects in 32 CFR Part 105 Crime, Health, Military personnel, Reporting and recordkeeping requirements. Accordingly, 32 CFR part 105 is amended as follows: PART 105—SEXUAL ASSAULT PREVENTION AND RESPONSE PROGRAM PROCEDURES 1. The authority citation for part 105 is revised to read as follows: Authority: Secs. 570, 573, 574, and 578, Pub. L. 112-239, 126 Stat. 1632; secs. 1705, 1709, 1713, 1723, 1743, and 1747, Pub. L. 113-66, 127 Stat. 672; secs. 531, 537, 538, 542, and 543, Pub. L. 113-291, 128 Stat. 3292; and sec. 536, Pub. L. 114-92, 129 Stat. 817. 2. Amend § 105.1 by: a. In paragraph (d): i. Removing “10 U.S.C. 113, 10 U.S.C. chapter 47 (also known and hereafter referred to as the “UCMJ”)” and adding in its place “10 U.S.C.” ii. Removing “Public Laws 106-65, 108-375, 109-163, 109-364, 110-417, 111-84, 111-383, 112-81” and adding in its place “Public Laws 112-239, 113-66, 113-291, and 114-92.” b. Revising paragraphs (e) and (f). The revisions read as follows: § 105.1 Purpose. (e) Incorporates and cancels DTM 11-063, DTM 11-062, and DTM 14-007. (f) Implements DoD policy and assigns responsibilities for the SAPR Program on prevention, response, and oversight to sexual assault according to the policies and guidance in: (1) DoDI 6495.02, “Sexual Assault Prevention and Response Program Procedures,” June 23, 2006 (hereby cancelled); (2) DoD Directive 5124.02, “Under Secretary of Defense for Personnel and Readiness (USD(P&R)),” June 23, 2008; (3) 32 CFR part 103; (4) Title 10, U.S.C.; (5) Under Secretary of Defense for Personnel and Readiness, “Task Force Report on Care for Victims of Sexual Assault,” April 2004; (6) Sections 561, 562, and 563 of Public Law 110-417, “Duncan National Defense Authorization Act for Fiscal Year 2009,” October 14, 2008; (7) Sections 584, 585, and 586 of Public Law 112-81, “National Defense Authorization Act for Fiscal Year 2012,” December 31, 2011; (8) Public Law 112-239, “National Defense Authorization Act for Fiscal Year 2013,” January 2, 2013; (9) Public Law 113-66, “National Defense Authorization Act for Fiscal Year 2014,” December 26, 2013; (10) Public Law 113-291, “Carl Levin and Howard P. `Buck' McKeon National Defense Authorization Act for Fiscal Year 2015,” December 29, 2014; (11) Public Law 114-92, “National Defense Authorization Act for Fiscal Year 2016,” (12) Directive Type Memorandum 11-063, “Expedited Transfer of Military Service Members Who File Unrestricted Reports of Sexual Assault,” December 16, 2011; (13) Directive Type Memorandum 11-062, “Document Retention in Cases of Restricted and Unrestricted Reports of Sexual Assault,” December 16, 2011; (14) Directive Type Memorandum 14-007, “Sexual Assault Incident Response Oversight (SAIRO) Report,” September 30, 2014, hereby cancelled; (15) DoDI 3020.41, “Operational Contract Support (OCS),” December 20, 2011; (16) DoD 6400.1-M-1, “DoD Manual for Child Maltreatment and Domestic Abuse Incident Reporting System,” July 2005, as amended; (17) U.S. Department of Defense, “Manual for Courts-Martial, United States,” current edition amended; (18) DoDI 1332.14, “Enlisted Administrative Separations,” January 27, 2014, as amended, which can be found at http://www.dtic.mil/whs/directives/corres/pdf/133214p.pdf ; (19) DoDI 1332.30, “Separation of Regular and Reserve Commissioned Officers,” November 25, 2013, which can be found at http://sapr.mil/public/docs/instructions/DoDI_133230_20131125.pdf ; (20) Title 5, U.S.C.; (21) DoD Directive 5400.11, “DoD Privacy Program,” October 29, 2014; (22) Public Law 104-191, “Health Insurance Portability and Accountability Act of 1996,” August 21, 1996; (23) DoDI 5505.18, “Investigation of Adult Sexual Assault in the Department of Defense,” January 25, 2013, as amended, which can be found at http://www.dtic.mil/whs/directives/corres/pdf/550518p.pdf ; (24) Presidential Memorandum, “Implementing the Prison Rape Elimination Act,” May 17, 2012; (25) Part 115 of title 28, Code of Federal Regulations, May 17, 2012; (26) DoD Manual 8910.01, Volume 2, “DoD Information Collections Manual: Procedures for DoD Public Information Collections,” June 30, 2014, which can be found at http://www.dtic.mil/whs/directives/corres/pdf/891001m_vol2.pdf ; (27) DoDI 5545.02, “DoD Policy for Congressional Authorization and Appropriations Reporting Requirements,” December 19, 2008, which can be found at http://www.dtic.mil/whs/directives/corres/pdf/554502p.pdf ; (28) DoD Manual 8910.01, Volume 1, “DoD Information Collections Manual: Procedures for DoD Internal Information Collections,” June 30, 2014, which can be found at http://www.dtic.mil/whs/directives/corres/pdf/891001m_vol1.pdf ; (29) DoDI 6495.03, “Defense Sexual Assault Advocate Certification Program (D-SAACP),” September 10, 2015, which can be found at http://www.dtic.mil/whs/directives/corres/pdf/649503p.pdf ; (30) U.S. Department of Justice, Office on Violence Against Women, “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents,” current version, which can be found at https://www.ncjrs.gov/pdffiles1/ovw/206554.pdf ; (31) DoDI 5505.19, “Establishment of Special Victim Investigation and Prosecution (SVIP) Capability within the Military Criminal Investigative Organizations (MCIOs),” February 3, 2015, can be found at http://www.dtic.mil/whs/directives/corres/pdf/550519p.pdf ; (32) DoDI 1030.2, “Victim and Witness Assistance Procedures,” June 4, 2004, which can be found at http://www.dtic.mil/whs/directives/corres/pdf/103002p.pdf ; (33) DoD Directive 7050.06, “Military Whistleblower Protection,” April 17, 2015, which can be found at http://www.dtic.mil/whs/directives/corres/pdf/705006p.pdf ; (34) Under Secretary of Defense (Personnel and Readiness) Memorandum, “Guidelines for the DoD Safe Helpline,” January 22, 2015; (35) DoD Directive 1350.2, “Department of Defense Military Equal Opportunity (MEO) Program,” August 18, 1995, as amended, which can be found at http://www.dtic.mil/whs/directives/corres/pdf/135002p.pdf ; (36) Directive Type Memorandum 14-003, “DoD Implementation of Special Victim Capability (SVC) Prosecution and Legal Support,” February 12, 2014, (as amended), which can be found at http://www.dtic.mil/whs/directives/corres/pdf/DTM-14-003.pdf ; (37) Under Secretary of Defense (Personnel and Readiness) Memorandum, “Certification Standards for Department of Defense Sexual Assault Prevention and Response Program Managers,” March 10, 2015; (38) DoDI 6400.07, “Standards for Victim Assistance Services in the Military Community,” November 25, 2013, which can be found at http://www.dtic.mil/whs/directives/corres/pdf/640007p.pdf ; (39) DoD 6025.18-R, “DoD Health Information Privacy Regulation,” January 24, 2003, which can be found at http://www.dtic.mil/whs/directives/corres/pdf/602518r.pdf ; (40) Executive Order 13593, “2011 Amendments to the Manual for Courts-Martial, United States,” December 13, 2011, can be found at http://www.gpo.gov/fdsys/pkg/FR-2011-12-16/pdf/X11-11216.pdf ; (41) AD 2014-20/AFI 36-2909/SECNAVINST 5370.7D, dated 4 Dec 14, “Prohibition of Retaliation Against Members of the Armed Forces Reporting a Criminal Offense,” dates vary by Military Service; (42) DoD Directive 1030.01, “Victim and Witness Assistance,” April 13, 2004, which can be found at http://www.dtic.mil/whs/directives/corres/pdf/103001p.pdf ; (43) Executive Order 13696 Amendments to the Manual for Courts-Martial, dated June 17, 2015; (44) Department of Defense 2014-2016 Sexual Assault Prevention Strategy, April 30, 2014, which can be found at http://sapr.mil/public/docs/reports/SecDef_Memo_and_DoD_SAPR_Prevention_Strategy_2014-2016.pdf ; (45) DoD Directive 5136.13, “Defense Health Agency (DHA),” September 30, 2013, which can be found at http://www.dtic.mil/whs/directives/corres/pdf/513613p.pdf ; (46) U.S. Department of Justice, Office on Violence Against Women, “National Training Standards for Sexual Assault Medical Forensic Examiners,” current version, which can be found at https://www.ncjrs.gov/pdffiles1/ovw/213827.pdf ; (47) DoDI 6025.13, “Medical Quality Assurance (MQA) and Clinical Quality Management in the Military Health Care System (MHS)”, February 17, 2011, as amended, which can be found at http://www.dtic.mil/whs/directives/corres/pdf/602513p.pdf ; (48) Under Secretary of Defense for Personnel and Readiness Memorandum, “Legal Assistance for Victims of Crime,” October 17, 2011, which can be found at http://www.sapr.mil/index.php/law-and-dod-policies/directives-and-instructions ; and (49) DoD 4165.66-M, “Base Redevelopment and Realignment Manual,” March 1, 2006, which can be found at http://www.dtic.mil/whs/directives/corres/pdf/416566m.pdf. 3. Revise § 105.2 to read as follows: § 105.2 Applicability. (a) This part applies to: (1) Office of the Secretary of Defense (OSD), the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the IG, DoD, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the DoD (hereafter referred to collectively as the “DoD Components”). (2) National Guard and Reserve members, who are sexually assaulted when performing active service, as defined in section 101(d)(3) of title 10, U.S.C., and inactive duty training. If reporting a sexual assault that occurred prior to or while not performing active service or inactive training, NG and Reserve members will be eligible to receive timely access to SAPR advocacy services from a SARC and a SAPR VA, and the appropriate non-medical referrals, if requested, in accordance with section 584(a) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2012, as amended by section 1724 of NDAA for FY 2014 (Public Law 113-66). They also have access to a Special Victims Counsel in accordance with section 1044e of title 10, U.S.C. and are eligible to file a Restricted or Unrestricted Report. Reports of prior-to-military service sexual assault shall be handled in accordance with the procedures for Restricted and Unrestricted Reports outlined in this part, as appropriate based on the type of report made (Restricted or Unrestricted). Reserve Component members can report at any time and do not have to wait to be performing active service or be in inactive training to file their report. (3) Military dependents 18 years of age and older who are eligible for treatment in the MHS, at installations continental United States (CONUS) and outside of the continental United States (OCONUS), and who were victims of sexual assault perpetrated by someone other than a spouse or intimate partner (See § 105.3). Adult military dependents may file unrestricted or restricted reports of sexual assault. (4) The following non-military individuals who are victims of sexual assault are only eligible for limited emergency care medical services at a military treatment facility, unless that individual is otherwise eligible as a Service member or TRICARE ( http://www.tricare.mil ) beneficiary of the military health system to receive treatment in a MTF at no cost to them. At this time, they are only eligible to file an Unrestricted Report. They will also be offered the limited SAPR services to be defined as the assistance of a SARC and SAPR VA while undergoing emergency care OCONUS. These limited medical and SAPR services shall be provided to: (i) DoD civilian employees and their family dependents 18 years of age and older when they are stationed or performing duties OCONUS and eligible for treatment in the MHS at military installations or facilities OCONUS. These DoD civilian employees and their family dependents 18 years of age and older only have the Unrestricted Reporting option. (ii) U.S. citizen DoD contractor personnel when they are authorized to accompany the Armed Forces in a contingency operation OCONUS and their U.S. citizen employees. DoD contractor personnel only have the Unrestricted Reporting option. Additional medical services may be provided to contractors covered under this part in accordance with DoDI 3020.41 as applicable. (5) Service members who were victims of sexual assault PRIOR to enlistment or commissioning are eligible to receive SAPR services (see § 105.3) under either reporting option. The DoD shall provide support to Service members regardless of when or where the sexual assault took place. The SARC or SAPR VA will assist a victim to complete a DD Form 2910, “Victim Reporting Preference Statement,” and provide advocacy services and the appropriate referrals, if requested, for victimization occurring prior to military service. (i) Prior-to-military service victimization includes adult sexual assault (including stranger sexual assault and intimate partner sexual assault, if the victim is no longer in the same intimate relationship) and sexual assault that was perpetrated on the Service member while he or she was still a child. (ii) Reports of prior to military service sexual assault will be handled in accordance with the procedures for Restricted and Unrestricted Reports outlined in this part, as appropriate based on the type of report made (Restricted or Unrestricted). (b) This part does not apply to victims of sexual assault perpetrated by a spouse or intimate partner (see § 105.3), or military dependents under the age of 18 who are sexually assaulted. The FAP, as described in DoD 6400.1-M-1, provides the full range of services to those individuals. When a sexual assault occurs as a result of domestic abuse or involves child abuse, the installation SARC and the installation FAP staff will direct the victim to FAP. 4. Amend § 105.3 by: a. Removing all alphabetical paragraph designators and arranging the terms in alphabetical order. b. Removing the definition of “DoD Safe Helpline.” c. Adding the definition of “Family Advocacy Program (FAP)” in alphabetical order. d. Revising the definitions of “Healthcare provider” and “Installation.” e. Adding the definitions of “Intimate partner,” “Military OneSource,” and “Open with limited information” in alphabetical order. f. Removing the definition of “Reprisal.” g. Revising the definition of “Restricted reporting.” h. Adding the definitions of “Safe Helpline,” “Safety assessment,” “Special Victim Investigation and Prosecution Capability,” and “Special Victims' Counsel (SVC)” in alphabetical order. i. Revising the definition of “Victim Witness Assistance Program (VWAP).” j. Adding the definition of “Victims' Legal Counsel (VLC)” in alphabetical order. k. Removing the definition of “Working Integrated Product Team (WIPT).” The revisions and additions read as follows: § 105.3 Definitions. Family Advocacy Program (FAP). A DoD program designated to address child abuse and domestic abuse in military families and child maltreatment in DoD-sanctioned activities in cooperation with civilian social service agencies and military and civilian law enforcement agencies. Prevention, advocacy, and intervention services are provided to individuals who are eligible for treatment in military medical treatment facilities. Healthcare provider. Those individuals who are employed or assigned as healthcare professionals, or are credentialed to provide healthcare services at a medical treatment facility (MTF), or who provide such care at a deployed location or otherwise in an official capacity. This also includes military personnel, DoD civilian employees, and DoD contractors who provide healthcare at an occupational health clinic for DoD civilian employees or DoD contractor personnel. Healthcare providers may include, but are not limited to: (1) Licensed physicians practicing in the military healthcare system (MHS) with clinical privileges in obstetrics and gynecology, emergency medicine, family practice, internal medicine, pediatrics, urology, general medical officer, undersea medical officer, flight surgeon, psychiatrists, or those having clinical privileges to perform pelvic examinations or treat mental health conditions. (2) Licensed advanced practice registered nurses practicing in the MHS with clinical privileges in adult health, family health, midwifery, women's health, mental health, or those having clinical privileges to perform pelvic examinations. (3) Licensed physician assistants practicing in the MHS with clinical privileges in adult, family, women's health, or those having clinical privileges to perform pelvic examinations. (4) Licensed registered nurses practicing in the MHS who meet the requirements for performing a SAFE as determined by the local privileging authority. This additional capability shall be noted as a competency, not as a credential or privilege. (5) A psychologist, social worker or psychotherapist licensed and privileged to provide mental health are or other counseling services in a DoD or DoD-sponsored facility. Installation. A base, camp, post, station, yard, center, homeport facility for any ship, or other activity under the jurisdiction of the DoD, including any leased facility. It does not include any facility used primarily for civil works, rivers and harbors projects, flood control, or other projects not under the primary jurisdiction or control of the DoD in accordance with 4165.66-M, “Base Redevelopment and Realignment Manual, March 1, 2006.”. Intimate partner. Defined in 32 CFR part 61. Military OneSource. A DoD-funded program providing comprehensive information on every aspect of military life at no cost to active duty, National Guard, and Reserve members, and their families. Military OneSource has a mandatory reporting requirement. Open with limited information. Entry in DSAID to be used in the following situations: Victim refused or declined services, victim opt-out of participating in investigative process, third-party reports, local jurisdiction refused to provide victim information, or civilian victim with military subject. Restricted reporting. Reporting option that allows a service member to confidentially disclose the assault to specified individuals ( i.e., SARC, SAPR VA, or healthcare personnel), and receive medical treatment, including emergency care, counseling, and assignment of a SARC and SAPR VA, without triggering an investigation or reporting the PII of the victim or alleged perpetrator unless an exception applies, as determined by the Department of Defense. For DoD installations located in state jurisdictions with mandatory reporting laws requiring disclosure of PII of a sexual military assault victim (or their adult dependent) or alleged offender, to federal, local or state law enforcement agencies, such disclosure is not required unless disclosure of PII is necessary to prevent or mitigate a serious and imminent threat as provided for in this part. Additional persons who may be entitled to Restricted Reporting are NG and Reserve members. DoD civilians and contractors, at this time, are only eligible to file an Unrestricted Report. Only a SARC, SAPR VA, or healthcare personnel may receive a Restricted Report, previously referred to as Confidential Reporting. Safe Helpline. A crisis support service for members of the DoD community affected by sexual assault. The DoD Safe Helpline: (1) Is available 24/7 worldwide with “click, call, or text” user options for anonymous and confidential support. (2) Can be accessed by logging on to www.safehelpline.org or by calling 1-877-995-5247, and through the Safe Helpline mobile application. (3) Is to be utilized as the sole DoD hotline. (4) Does not replace local base and installation SARC or SAPR VA contact information. Safety assessment. A set of guidelines and considerations post-sexual assault that the responsible personnel designated by the Installation Commander can follow to determine if a sexual assault survivor is likely to be in imminent danger of physical or psychological harm as a result of being victimized by or reporting sexual assault(s). The guidelines and considerations consist of a sequence of questions, decisions, referrals, and actions that responders can enact to contribute to the safety of survivors during the first 72 hours of report, and during other events that can increase the lethality risk for survivors ( e.g., arrests or command actions against the alleged perpetrators). Types of imminent danger may include non-lethal, lethal, or potentially lethal behaviors; the potential harm caused by the alleged perpetrator, family/friend(s)/acquaintance(s) of the alleged perpetrator, or the survivors themselves). The safety assessment includes questions about multiple environments, to include home and the workplace. Survivors are also assessed for their perception or experience of potential danger from their leadership or peers via reprisal or ostracism. The safety assessment contains a safety plan component that survivors can complete and take with them to help improve coping, social support, and resource access during their recovery period. Special Victim Investigation and Prosecution Capability. In accordance with Public Law 112-81, a distinct, recognizable group of appropriately skilled professionals, including MCIO investigators, judge advocates, victim witness assistance personnel, and administrative paralegal support personnel, who work collaboratively to: (1) Investigate and prosecute allegations of child abuse (involving sexual assault or aggravated assault with grievous bodily harm), domestic violence (involving sexual assault or aggravated assault with grievous bodily harm), and adult sexual assault (not involving domestic offenses). (2) Provide support for the victims of such offenses. Special Victims' Counsel (SVC). Attorneys who are assigned to provide legal assistance in accordance with section 1044e of title 10, U.S.C. and Service regulations. The Air Force, Army, NG, and Coast Guard refer to these attorneys as SVC. The Navy and Marine Corps refer to these attorneys as VLC. Victim Witness Assistance Program (VWAP). Provides guidance in accordance with DoDI 1030.2 for assisting victims and witnesses of crime from initial contact through investigation, prosecution, and confinement. Particular attention is paid to victims of serious and violent crime, including child abuse, domestic violence and sexual misconduct. Victims' Legal Counsel (VLC). Attorneys who are assigned to provide legal assistance in accordance with section 1044e of title 10, U.S.C. and Service regulations. The Navy and Marine Corps refer to these attorneys as VLC. The Air Force, Army, NG, and Coast Guard refer to these attorneys as SVC. 5. Revise § 105.4 to read as follows: § 105.4 Policy. It is DoD policy, in accordance with 32 CFR part 103, that: (a) This part and 32 CFR part 103 establish and implement the DoD SAPR program. Unrestricted and Restricted Reporting Options are available to Service members and their adult military dependents in accordance with this part. (b) The DoD goal is a culture free of sexual assault, through an environment of prevention, education and training, response capability (see § 105.3), victim support, reporting procedures, and appropriate accountability that enhances the safety and well-being of all persons covered by this part and 32 CFR part 103. (1) While a sexual assault victim may disclose information to whomever he or she chooses, an official report is made only when a DD Form 2910 is signed and filed with a SARC or SAPR VA, or when a Military Criminal Investigative Organization (MCIO) investigator initiates an investigation. (2) For Restricted and Unrestricted Reporting purposes, a report can be made to healthcare personnel, but healthcare personnel then immediately contact the SARC or SAPR VA to fill out the DD Form 2910. Chaplains and military attorneys cannot take official reports. (3) Unless a DD Form 2910 is filed with a SARC, a report to a Chaplain or military attorney may not result in the rendering of SAPR services or investigative action because of the privileges associated with speaking to these individuals. A Chaplain or military attorney should advise the victim to consult with a SARC to understand the full scope of services available or facilitate, with the victim's consent, contact with a SARC. (c) The SAPR Program shall: (1) Focus on the victim and on doing what is necessary and appropriate to support victim recovery, and also, if a Service member, to support that Service member to be fully mission capable and engaged. (2) Require that medical care and SAPR services are gender-responsive, culturally-competent, and recovery-oriented as defined in 32 CFR 103.3. (3) Not provide policy for legal processes within the responsibility of the Judge Advocates General (JAG) of the Military Departments provided in sections 801-946 of Title 10, United States Code, also known and referred to in this part as the Uniform Code of Military Justice (UCMJ), the Manual for Courts-Martial, or for criminal investigative matters assigned to the IG, DoD. (d) Command sexual assault awareness and prevention programs and DoD law enforcement (see § 105.3) and criminal justice procedures that enable persons to be held appropriately accountable for their actions shall be supported by all commanders. (e) Standardized SAPR requirements, terminology, guidelines, protocols, and guidelines for training materials shall focus on awareness, prevention, and response at all levels, as appropriate. (f) SARC and SAPR VA shall be used as standard terms as defined in and in accordance with 32 CFR part 103 throughout the Military Departments to facilitate communications and transparency regarding SAPR response capability. (g) The SARC shall serve as the single point of contact for coordinating care to ensure that sexual assault victims receive appropriate and responsive care. All SARCs shall be authorized to perform VA duties in accordance with service regulations, and will be acting in the performance of those duties. (h) All SARCs shall have direct and unimpeded contact and access to the installation commander (see § 105.3) and the immediate commander of the Service member victim and alleged Service member offender for the purpose of this part and 32 CFR part 103. The installation commander will have direct contact with the SARC(s) and this responsibility is not further delegable. (1) If an installation has multiple SARCs on the installation, a Lead SARC shall be designated by the Service. (2) For SARCs that operate within deployable commands that are not attached to an installation, they shall have access to the senior commander for the deployable command. (i) A 24 hour, 7 day per week sexual assault response capability for all locations, including deployed areas, shall be established for persons covered in this part. An immediate, trained sexual assault response capability shall be available for each report of sexual assault in all locations, including in deployed locations. (j) SARCs, SAPR VAs, and other responders (see § 105.3) will assist sexual assault victims regardless of Service affiliation. (k) Service member and adult military dependent victims of sexual assault shall receive timely access to comprehensive medical and psychological treatment, including emergency care treatment and services, as described in this part and 32 CFR part 103. (l) Sexual assault victims shall be given priority, and treated as emergency cases. Emergency care (see § 105.3) shall consist of emergency medical care and the offer of a SAFE. The victim shall be advised that even if a SAFE is declined the victim shall be encouraged (but not mandated) to receive medical care, psychological care, and victim advocacy. (m) DoD prohibits granting a waiver for commissioning or enlistment in the Military Services when the person has a qualifying conviction (see § 105.3) for a crime of sexual assault or is required to be registered as a sex offender. (n) There will be a safety assessment capability for the purposes of ensuring the victim, and possibly other persons, are not in physical jeopardy. A safety assessment will be available to all Service members, adult military dependents, and civilians who are eligible for SAPR services, even if the victim is not physically located on the installation. The installation commander or the deputy installation commander will identify installation personnel who have been trained and are able to perform a safety assessment of each sexual assault victim, regardless of whether he or she filed a Restricted or Unrestricted Report. Individuals tasked to conduct safety assessments must occupy positions that do not compromise the victim's reporting options. The safety assessment will be conducted as soon as possible, understanding that any delay may impact the safety of the victim. (1) For Unrestricted Reports, if a victim is assessed to be in a high-risk situation, the assessor will immediately contact the installation commander or his or her deputy, who will immediately stand up a multi-disciplinary High-Risk Response Team in accordance with the guidance in § 105.13. This will be done even if the victim is not physically located on the installation. (2) For Restricted Reports, if the victim is assessed to be in a high-risk situation, it may qualify as an exception to Restricted Reporting, which is necessary to prevent or mitigate a serious and imminent threat to the health or safety of the victim or another person. The SARC will be immediately notified. The SARC will disclose the otherwise-protected confidential information only after consultation with the staff judge advocate (SJA) of the installation commander, supporting judge advocate, or other legal advisor concerned, who will advise the SARC as to whether an exception to Restricted Reporting applies, and whether disclosure of personally identifiable information (PII) to a military, other Federal, State or local law enforcement agency is necessary to prevent or mitigate an imminent and serious threat to the health and safety of the victim or another person, in accordance with the guidance in § 105.8. If the SJA determines that the victim is not in a high-risk situation or no serious and imminent threat to the health and safety of the victim or another person exists, then the report will remain Restricted. The SARC will ensure a safety assessment is conducted. (o) Service members who file an Unrestricted Report of sexual assault shall be informed by the SARC or SAPR VA at the time of making the report, or as soon as practicable, of the option to request an Expedited Transfer, in accordance with the procedures for commanders in § 105.9. A Service member may request: (1) A temporary or permanent Expedited Transfer from their assigned command or installation to a different command or installation; or (2) A temporary or permanent Expedited Transfer to a different location within their assigned command or installation. (p) An enlisted Service member or a commissioned officer who made an Unrestricted Report of sexual assault and is recommended for involuntary separation from the Military Services within 1 year of final disposition of his or her sexual assault case may request a general or flag officer (G/FO) review of the circumstances of and grounds for the involuntary separation in accordance with DoDI 1332.14 and DoDI 1332.30. (1) A Service member requesting this review must submit his or her written request to the first G/FO in the separation authority's chain of command before the separation authority approves the member's final separation action. (2) Requests submitted after final separation action is complete will not be reviewed by a G/FO, but the separated Service member may apply to the appropriate Service Discharge Review Board or Board of Correction of Military/Naval Records of their respective Service for consideration. (3) A Service member who submits a timely request will not be separated until the G/FO conducting the review concurs with the circumstances of and the grounds for the involuntary separation. (q) DoD prohibits granting a waiver for commissioning or enlistment in the Military Services when the person has a qualifying conviction (see § 105.3) for a crime of sexual assault, or a conviction for an attempt of a sexual assault crime, or has ever been required to be registered as a sex offender, in accordance with section 657 of Title 10, Unites States Code. (r) A Service member whose conviction of rape, sexual assault, forcible sodomy, or an attempt to commit one of the offenses is final, and who is not punitively discharged in connection with such convictions, will be processed for administrative separation for misconduct in accordance with DoDI 1332.14 and DoDI 1332.30. (s) Information regarding Restricted Reports should only be released to persons authorized to accept Restricted Reports or as authorized by law or DoD regulation. Improper disclosure of confidential communications under Restricted Reporting or improper release of medical information are prohibited and may result in disciplinary action pursuant to the UCMJ or other adverse personnel or administrative actions. (t) Information regarding Unrestricted Reports should only be released to personnel with an official need to know, or as authorized by law. Improper disclosure of confidential communications under Unrestricted Reporting or improper release of medical information are prohibited and may result in disciplinary action pursuant to the UCMJ or other adverse personnel or administrative actions. (u) The DoD will retain the DD Forms 2910, “Victim Reporting Preference Statement,” and 2911, “DoD Sexual Assault Forensic Examination (SAFE) Report,” for 50 years, regardless of whether the Service member filed a Restricted or Unrestricted Report as defined in 32 CFR part 103. PII will be protected in accordance with sections 552a of Title 5, United States Code, also known as the Privacy Act of 1974 and 32 CFR part 310 and Public Law 104-191. (1) Document retention and SAFE Kit retention for unrestricted reports. (i) The SARC will enter the Unrestricted Report DD Form 2910, in DSAID (see 32 CFR 103.3) as an electronic record within 48 hours of the report, where it will be retained for 50 years from the date the victim signed the DD Form 2910. The DD Form 2910 is located at the DoD Forms Management Program Web site at http://www.dtic.mil/whs/directives/infomgt/forms/index.htm . (ii) The DD Form 2911 shall be retained in accordance with DoDI 5505.18. The DD Form 2911 is located at the DoD Forms Management Program Web site at http://www.dtic.mil/whs/directives//forms/index.htm . (iii) If the victim had a SAFE, the SAFE Kit will be retained for 5 years in accordance with DoDI 5505.18 and in accordance with section 586 of the NDAA for FY 2012 (Public Law 112-81) as amended by section 538 of the NDAA for FY 2015 (Public Law 113-291). When the forensic examination is conducted at a civilian facility through a memorandum of understanding (MOU) or a memorandum of agreement (MOA) with the DoD, the requirement for the handling of the forensic kit will be explicitly addressed in the MOU or MOA. The MOU or MOA with the civilian facility will address the processes for contacting the SARC and for contacting the appropriate DoD agency responsible for accepting custody of the SAFE. (iv) Personal property retained as evidence collected in association with a sexual assault investigation will be retained for a period of 5 years. Personal property may be returned to the rightful owner of such property after the conclusion of all legal, adverse action and administrative proceedings related to such incidents in accordance with section 586 of the NDAA for FY 2012 (Public Law 112-81), as amended by section 538 of the NDAA for FY 2015 (Public Law 113-291) and DoD regulations. (2) Document retention and SAFE Kit retention for restricted reports. (i) The SARC will retain a copy of the Restricted Report DD Form 2910 for 50 years, consistent with DoD guidance for the storage of PII. The 50-year time frame for the DD Form 2910 will start from the date the victim signs the DD Form 2910. For Restricted Reports, forms will be retained in a manner that protects confidentiality. (ii) If the victim had a SAFE, the Restricted Report DD Form 2911 will be retained for 50 years, consistent with DoD guidance for the storage of PII. The 50-year time frame for the DD Form 2911 will start from the date the victim signs the DD Form 2910, but if there is no DD Form 2910, the timeframe will start from the date the SAFE Kit is completed. Restricted Report forms will be retained in a manner that protects confidentiality. (iii) If the victim had a SAFE, the SAFE Kit will be retained for 5 years in a location designated by the Military Service concerned. When the forensic examination is conducted at a civilian facility through an MOU or an MOA with the DoD, the requirement for the handling of the forensic kit will be explicitly addressed in the MOU or MOA. The MOU or MOA with the civilian facility will address the processes for contacting the SARC and for contacting the appropriate DoD agency responsible for accepting custody of the forensic kit. The 5-year time frame will start from the date the victim signs the DD Form 2910, but if there is no DD Form 2910, the timeframe will start from the date the SAFE Kit is completed. (iv) Personal property retained as evidence collected in association with a sexual assault investigation will be retained for a period of 5 years. In the event the report is converted to Unrestricted or an independent investigation is conducted, personal property may be returned to the rightful owner of such property after the conclusion of all legal, adverse action and administrative proceedings related to such incidents in accordance with section 586 of the NDAA for FY 2012 (Public Law 112-81), as amended by section 538 of the NDAA for FY 2015 (Public Law 113-291), and DoD regulations. (v) Current or former Service members who made a report of sexual assault may contact their respective Service SAPR headquarters office or Service or NG SARCs for help accessing their DD Forms 2910 and 2911. Requests for release of information relating to sexual assaults will be processed by the organization concerned, in accordance with the procedures specified in the sections 552 and 552a of Title 5, United States Code also known as “The Freedom of Information Act” and “The Privacy Act of 1974” respectively. (w) Service members who file Unrestricted and Restricted Reports of sexual assault and/or their dependents shall be protected from retaliation, reprisal, ostracism, maltreatment, or threats thereof, for filing a report. (x) An incident report must be submitted in writing within 8 days after an Unrestricted Report of sexual assault has been made in accordance with section 1743 of the NDAA for FY 2014 (Public Law 113-66). This 8-day incident report will only be provided to personnel with an official need to know. (y) At the time of reporting, victims must be informed of the availability of legal assistance and the right to consult with a Special Victims' Counsel or Victims' Legal Counsel (SVC/VLC) in accordance with section 1044e of Title 10, United States Code. (z) Consistent with the Presidential Memorandum, “Implementing the Prison Rape Elimination Act,” sexual assaults in DoD confinement facilities involving Service members will be governed by 28 CFR part 115. 6. Revise § 105.5 to read as follows: § 105.5 Responsibilities. (a) USD(P&R). The USD(P&R), in accordance with the authority in DoD Directive 5124.02 and 32 CFR part 103, shall: (1) Oversee the DoD SAPRO (see 32 CFR 103.3) in accordance with 32 CFR part 103. (2) Direct DoD Component implementation of this part in compliance with 32 CFR part 103. (3) Direct that Director, SAPRO, be informed of and consulted on any changes in DoD policy or the UCMJ relating to sexual assault. (4) With the Director, SAPRO, update the Deputy Secretary of Defense on SAPR policies and programs on a semi-annual schedule. (5) Direct the implementation, use, and maintenance of DSAID. (6) Oversee DoD SAPRO in developing DoD requirements for SAPR education, training, and awareness for DoD personnel consistent with this part. (7) Appoint a G/FO or Senior Executive Service (SES) equivalent in the DoD as the Director, SAPRO, in accordance with section 1611(a) of the Ike Skelton NDAA for FY 2011, as amended by section 583 of the NDAA for FY 2012. (8) In addition to the Director, SAPRO, assign at least one military officer from each of the Military Services and a National Guard member in title 10 status in the grade of O-4 or above to SAPRO for a minimum tour length of at least 18 months. Of the military officers assigned to the SAPRO, at least one officer shall be in the grade of O-6 or above in accordance with Public Law 112-81. (9) Maintain the Defense Sexual Assault Advocate Certification Program (D-SAACP), the DoD-wide certification program (see § 105.3), with a national accreditor to ensure all sexual assault victims are offered the assistance of a SARC or SAPR VA who has obtained this certification in accordance with DoDI 6495.03. (10) Maintain the DoD Safe Helpline (see § 105.3) to ensure members of the DoD community are provided with the specialized hotline help they need, anytime, anywhere. (b) Director, Department of Defense Human Resource Activity (DoDHRA). The Director, DoDHRA, under the authority, direction, and control of the USD(P&R), shall provide operational support, budget, and allocate funds and other resources for the DoD SAPRO as outlined in 32 CFR part 103. (c) Assistant Secretary of Defense for Health Affairs (ASD(HA)). The ASD(HA), under the authority, direction, and control of the USD(P&R), shall: (1) Establish DoD sexual assault healthcare policies, clinical practice guidelines, related procedures, and standards governing the DoD healthcare programs for victims of sexual assault. (2) Oversee the requirements and procedures in § 105.11. (3) Establish guidance to: (i) Give priority to sexual assault patients at MTFs as emergency cases. (ii) Require standardized, timely, accessible, and comprehensive medical care at MTFs for eligible persons who are sexually assaulted. (iii) Require that medical care is consistent with established community standards for the healthcare of sexual assault victims and the collection of forensic evidence from victims, in accordance with the current version of the U.S. Department of Justice, Office on Violence Against Women, Protocol National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents (the U.S. Department of Justice SAFE Protocol), instructions for victim and alleged offender exams found in the SAFE Kit, and DD Form 2911. (A) Minimum standards of healthcare intervention that correspond to clinical standards set in the community shall include those established in the U.S. Department of Justice SAFE Protocol. However, clinical guidance shall not be solely limited to this resource. (B) Prescribe training and certification requirements for sexual assault medical forensic examiners. (C) Healthcare providers providing care to sexual assault victims in theaters of operation are required to have access to the current version of the U.S. Department of Justice SAFE Protocol. (iv) Include deliberate planning to strategically position healthcare providers skilled in SAFE at predetermined echelons of care, for personnel with the responsibility of assigning medical assets. (4) Establish guidance for medical personnel that requires a SARC or SAPR VA to be called in for every incident of sexual assault for which treatment is sought at the MTFs, regardless of the reporting option. (5) Establish guidance in drafting MOUs or MOAs with local civilian medical facilities to provide DoD-reimbursable healthcare (to include psychological care) and forensic examinations for Service members and TRICARE eligible sexual assault victims in accordance with § 105.11. As part of the MOU or MOA, a SARC or SAPR VA will be notified for every incident of sexual assault. (6) Establish guidelines and procedures for the Surgeon Generals of the Military Departments to require that an adequate supply of resources, to include personnel, supplies, and SAFE Kits, is maintained in all locations where SAFEs may be conducted by DoD, including deployed locations. Maintaining an adequate supply of SAFE Kits is a shared responsibility of the ASD(HA) and Secretaries of the Military Departments. (7) In accordance with § 105.14, establish minimum standards for initial and refresher SAPR training required for all personnel assigned to MTFs and for specialized training for responders and healthcare providers. (d) General Counsel of the DoD (GC, DoD). The GC, DoD, shall: (1) Provide legal advice and assistance on proposed policies, DoD issuances, proposed exceptions to policy, and review of all legislative proposals affecting mission and responsibilities of the SAPRO. (2) Inform the USD(P&R) of any sexual assault related changes to the UCMJ. (e) IG DoD. The IG DoD shall: (1) Establish guidance and provide oversight for the investigations of sexual assault in the DoD to meet the SAPR policy and training requirements of this part. (2) Inform the USD(P&R) of any changes relating to sexual assault investigation policy or guidance. (3) DoD IG shall collaborate with SAPRO in the development of investigative policy in support of sexual assault prevention and response. (f) Secretaries of the Military Departments. The Secretaries of the Military Departments shall: (1) Establish SAPR policy and procedures to implement this part. (2) Coordinate all Military Service SAPR policy changes with the USD(P&R). (3) Establish and publicize policies and procedures regarding the availability of a SARC. (i) Require that sexual assault victims receive appropriate and responsive care and that the SARC serves as the single point of contact for coordinating care for victims. (ii) Direct that the SARC or a SAPR VA be immediately called in every incident of sexual assault on a military installation. There will be situations where a sexual assault victim receives medical care and a SAFE outside of a military installation through a MOU or MOA with a local private or public sector entity. In these cases, the MOU or MOA will require that a SARC be notified as part of the MOU or MOA (iii) When a victim has a temporary change of station or PCS or is deployed, direct that SARCs immediately request victim consent to transfer case management documents. Require the SARC to document the consent to transfer in the DD Form 2910. Upon receipt of victim consent, SARCs shall expeditiously transfer case management documents to ensure continuity of care and SAPR services. All Federal, DoD, and Service privacy regulations must be strictly adhered to. However, when the SARC has a temporary change of station or PCS or is deployed, no victim consent is required to transfer the case to the next SARC. Every effort must be made to inform the victim of the case transfer. If the SARC has already closed the case and terminated victim contact, no other action is needed. See § 105.9 for Expedited Transfer protocols and commander notification procedures. (iv) Require the assignment of at least one full-time SARC and one full-time SAPR VA to each brigade or equivalent unit in accordance with section 584 of the NDAA for FY 2012. Additional full-time or part-time SARCs and SAPR VAs may be assigned as necessary based on the demographics or needs of the unit in accordance with the NDAA for FY 2012. Only Service members or DoD civilians will serve as SARCs and SAPR VAs in accordance with section 584 of the NDAA for FY 2012. (v) Sexual assault victims shall be offered the assistance of a SARC and/or SAPR VA who has been credentialed by the D-SAACP. D-SAACP certification requirements are contained in the DD Form 2950, “Department of Defense Sexual Assault Advocate Certification Program Application Packet,” and DTM 14-001. (vi) Issue guidance to ensure that equivalent standards are met for SAPR where SARCs are not installation-based but instead work within operational and/or deployable organizations. (4) Establish guidance to meet the SAPR training requirements for legal, MCIO, DoD law enforcement, responders and other Service members in § 105.14. (5) Establish standards and periodic training for healthcare personnel and healthcare providers regarding the Unrestricted and Restricted Reporting options of sexual assault in accordance with § 105.14. Enforce eligibility standards for healthcare providers to perform SAFEs. (6) Require first responders (see § 105.3) to be identified upon their assignment and trained, and require that their response times be continually monitored by their commanders to ensure timely response to reports of sexual assault. The response for MCIOs is governed by DoDI 5505.19. See § 105.14 for training requirements. Ensure established response time is based on local conditions but reflects that sexual assault victims will be treated as emergency cases. (7) Upon request, submit a copy of SAPR training programs or SAPR training elements to USD(P&R) through SAPRO for evaluation of consistency and compliance with DoD SAPR training standards in this part and current SAPR core competencies and learning objectives. The Military Departments will correct USD(P&R) identified DoD SAPR policy and training standards discrepancies. (8) Establish policy that ensures commanders are accountable for implementing and executing the SAPR program at their installations consistent with this part, 32 CFR part 103, and their Service regulations. (9) Require the assignment of at least one full-time sexual assault medical forensic examiner to each MTF that has an emergency department that operates 24 hours per day. Additional sexual assault medical forensic examiners may be assigned based on the demographics of the patients who utilize the MTF. (10) In cases of MTFs that do not have an emergency department that operates 24 hours per day, require that a sexual assault medical forensic examiner be made available to a patient of the facility through an MOU or MOA with local private or public sector entities and consistent with U.S. Department of Justice, Office on Violence Against Women, “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents”, when a determination is made regarding the patient's need for the services of a sexual assault medical forensic examiner. The MOU or MOA will require that SARCs or SAPR VAs are contacted and that SAFE Kits are collected and preserved in accordance with § 105.12. (11) Establish guidance to direct that all Unrestricted Reports of violations (to include attempts) of sexual assault and non-consensual sodomy, as defined in title 10, U.S.C., against adults are immediately reported to the MCIO. (i) A unit commander who receives an Unrestricted Report of an incident of sexual assault shall immediately refer the matter to the appropriate MCIO. A unit commander shall not conduct internal, command-directed investigations on sexual assault allegations ( i.e., no referrals to appointed command investigators or inquiry officers) or delay immediately contacting the MCIOs while attempting to assess the credibility of the report. (ii) Commander(s) of the Service member(s) who is a subject of a sexual assault allegation shall, as soon as possible, provide in writing all disposition data, to include any administrative or judicial action taken, if any, stemming from the sexual assault investigation to the MCIO. (iii) Once the investigation is completed, MCIOs shall submit case disposition data that satisfies the reporting requirements for DSAID identified in § 105.15 and the annual reporting requirements in § 105.16. (12) Establish SAPR policy that requires commanders to be responsive to a victim's desire to discuss his or her case with the installation commander tasked by the Military Service with oversight responsibility for the SAPR program in accordance with 32 CFR part 103. (13) Establish standards for command assessment of organizational SAPR climate, including periodic follow-up assessments. In accordance with section 572 of the NDAA for FY 2013, these standards will require that commanders conduct such climate assessments within 120 days of assuming command and annually thereafter. (14) As a shared responsibility with ASD(HA), direct installation commanders to maintain an adequate supply of SAFE Kits in all locations where SAFEs are conducted, including deployed locations. Direct that Military Service SAPR personnel, to include medical personnel, are appropriately trained on protocols for the use of the SAFE Kit and comply with prescribed chain of custody procedures described in their Military Service-specific MCIO procedures. (15) Establish procedures that require, upon seeking assistance from a SARC, SAPR VA, MCIO, the VWAP, or trial counsel, that each Service member who reports that she or he has been a victim of a sexual assault be informed of and given the opportunity to: (i) Consult with SVC/VLC, legal assistance counsel, and in cases where the victim may have been involved in collateral misconduct (see § 105.3), to consult with defense counsel. (A) When the alleged perpetrator is the commander or in the victim's chain of command, such victims shall be informed of the opportunity to go outside the chain of command to report the offense to other commanding officers (CO) or an Inspector General. Victims shall be informed that they can also seek assistance from the DoD Safe Helpline (see § 105.3). (B) The victim shall be informed that legal services are optional and may be declined, in whole or in part, at any time. (C) Commanders shall require that information and services concerning the investigation and prosecution be provided to victims in accordance with VWAP procedures in DoDI 1030.2. 3 3 Available: http://www.dtic.mil/whs/directives/corres/pdf/103002p.pdf . (ii) Have a SARC or SAPR VA present when law enforcement or trial counsel interviews the victim. (iii) Have a SARC or SAPR VA, counsel for the government, or SVC or VLC present, when defense counsel interviews the victim, in accordance with Article 46 of the UCMJ (section 846 of Title 10 U.S.C.) (16) Establish procedures to ensure that in the case of a general or special court-martial the trial counsel causes each qualifying victim to be notified of the opportunity to receive a copy of the record of trial (not to include sealed materials, unless otherwise approved by the presiding military judge or appellate court, classified information, or other portions of the record the release of which would unlawfully violate the privacy interests of any party, and without a requirement to include matters attached to the record under Rule for Courts-Martial (R.C.M.) 1103(b)(3) in the Manual for Courts-Martial, United States. A qualifying victim is an individual named in a specification alleging an offense under Articles 120, 120b, 120c, or 125 of the UCMJ (sections 920, 920b, 920c, or 925 of title 10, U.S.C.), or any attempt to commit such offense in violation of Article 80 of the UCMJ (section 880 of title 10, U.S.C.), if the court-martial resulted in any finding to that specification. If the victim elects to receive a copy of the record of proceedings, it shall be provided without charge and within a timeframe designated by regulations of the Military Department concerned. The victim shall be notified of the opportunity to receive the record of the proceedings in accordance R.C.M. 1103(g)(3)(C) in Manual for Courts-Martial, United States. (17) Require that a completed DD Form 2701, “Initial Information for Victims and Witnesses of Crime,” be distributed to the victim as required by paragraph 6.1 of DoDI 1030.2. (DD Form 2701 may be obtained via the Internet at http://www.dtic.mil/whs/directives/infomgt/forms/index.htm and in DoDI 5505.18.) (18) Establish procedures to protect Service member victims of sexual assault and/or their dependents from retaliation, ostracism, maltreatment and reprisal in accordance with section 1709 of the NDAA for FY 2014, DoDD 7050.06 4 and Service regulations. Require the SARC or SAPR VA to inform victims of the resources, listed in § 105.8, to report instances of retaliation, reprisal, ostracism, or maltreatment to request a transfer or military protective order (MPO). 4 Available: http://www.dodig.mil/HOTLINE/Documents/DODInstructions/DOD%20Directive%207050.06.pdf . (19) Require SARCs and SAPR VAs to advise victims who reported a sexual assault or sought mental health treatment for sexual assault of the opportunity to communicate with a G/FO regarding issues related to their military career that the victim believes are associated with the sexual assault. (20) Establish procedures to require commanders to protect the SARC and SAPR VA from retaliation, reprisal, ostracism, or maltreatment related to the execution of their duties and responsibilities. (21) Establish procedures to require commanders to protect witnesses and bystanders who intervene to prevent sexual assaults or who report sexual assaults, from retaliation, reprisal, ostracism, or maltreatment in accordance with section 1709 of the NDAA for FY 2014. (22) Require specialized training for all supervisors (officer, enlisted, civilian) down to the most junior supervisor that explains: (i) That all supervisors in the victim's chain of command, officer and enlisted, are required when they become aware of allegations of retaliation, reprisal, ostracism, or maltreatment, to take appropriate measures to protect the victim from retaliation, reprisal, coercion, ostracism, and maltreatment in Unrestricted Reports. (ii) What constitutes retaliation, reprisal, ostracism, and maltreatment in accordance with Service regulations and Military Whistleblower Protections and procedures for reporting allegations of reprisal in accordance with DoDD 7050.06. (iii) The resources available for victims (listed in § 105.8) to report instances of retaliation, reprisal, ostracism, maltreatment, or sexual harassment or to request a transfer or MPO. (iv) That victims who reported a sexual assault or sought mental health treatment for sexual assault, have the opportunity to communicate with the G/FO regarding issues related to their military career that the victim believes are associated with the sexual assault. (23) Establish Military Service-specific guidance to ensure collateral misconduct is addressed in a manner that is consistent and appropriate to the circumstances, and at a time that encourages continued victim cooperation. (24) Establish expedited transfer procedures of victims of sexual assault in accordance with §§ 105.4(n) and 105.9. (25) Appoint a representative to the SAPR IPT in accordance with § 105.7, and provide chairs or co-chairs for working groups, when requested. Appoint a representative to SAPRO oversight teams upon request. (26) Provide quarterly and annual reports of sexual assault involving Service members to Director, SAPRO, to be consolidated into the annual Secretary of Defense report to Congress in accordance with 32 CFR part 103 and section 1631(d) of Public Law 111-84. (See § 105.16 for additional information about reporting requirements.) (27) Support victim participation in semi-annual Survivor Meetings with the Director of SAPRO. (28) Support victim participation in the Survivor Experience Survey referred to in § 105.16, conducted by the Defense Manpower Data Center (DMDC). (29) Provide budget program and obligation data, as requested by the DoD SAPRO. (30) Require that reports of sexual assault be entered into DSAID through MCIO case management systems or by direct data entry by SARCs and legal officers. Establish procedures to regularly review and assure the quality of data entered into DSAID. (i) Data systems that interface with DSAID shall be modified and maintained to accurately provide information to DSAID. (ii) Only SARCs who are credentialed (and maintain that credential) through D-SAACP and legal officer appointed by their Military Service shall be permitted access to enter sexual assault reports and case outcome data into DSAID. (31) Provide Director, SAPRO, a written description of any sexual assault related research projects contemporaneous with commencing the actual research. When requested, provide periodic updates on results and insights. Upon conclusion of such research, a summary of the findings will be provided to DoD SAPRO as soon as practicable. (32) Establish procedures for supporting the DoD Safe Helpline in accordance with the USD(P&R) Memorandum, “Guidelines for the DoD Safe Helpline”, which provides guidance for the referral database, providing a timely response to victim feedback, and publicizing the DoD Safe Helpline to SARCs, SAPR VAs, Service members, and to persons at military correctional facilities. (i) Utilize the DoD Safe Helpline as the sole DoD hotline to provide crisis intervention, facilitate victim reporting through connection to the nearest SARC, and other resources as warranted. (ii) The DoD Safe Helpline does not replace local base and installation SARC or SAPR VA contact information. (33) Establish procedures to implement SAPR training in accordance with § 105.14, to include explaining the eligibility for SVC or VLC for individuals making Restricted and Unrestricted Reports of sexual assault, and the types of legal assistance authorized to be provided to the sexual assault victim in accordance with section 1565b and 1004e of Title 10 U.S.C. Explain that the nature of the relationship between a SVC or VLC and a victim in the provision of legal advice and assistance will be the relationship between an attorney and client, in accordance with section 1044e of Title 10 U.S.C. Training should be provided by subject matter experts on the topics outlined in § 105.14. (34) Require that reports of sexual assaults are provided to the Commanders of the Combatant Commands for their respective area of responsibility on a quarterly basis, or as requested. (35) For CMGs: (i) Require the installation commander or the deputy installation commander chair the multi-disciplinary CMG (see § 105.13) on a monthly basis to review individual cases of Unrestricted Reporting of sexual assault, facilitate monthly victim updates, direct system coordination, accountability, and victim access to quality services. This responsibility will not be delegated. (ii) Require that the installation SARC (in the case of multiple SARCs on an installation, then the Lead SARC) serve as the co-chair of the CMG. This responsibility will not be delegated. (iii) If the installation is a joint base or if the installation has tenant commands, the commander of the tenant organization and their designated Lead SARC shall be invited to the CMG meetings when a Service member in his or her unit or area of responsibility is the victim of a sexual assault. The commander of the tenant organization shall provide appropriate information to the host commander, to enable the host commander to provide the necessary supporting services. (iv) The Secretaries of the Military Departments shall issue guidance to ensure that equivalent standards are met for case oversight by CMGs in situations where SARCs are not installation-based but instead work within operational and/or deployable organizations. (36) Establish document retention procedures for Unrestricted and Restricted Reports of sexual assault in accordance with § 105.4(t). (37) When drafting MOUs or MOAs with local civilian medical facilities to provide DoD-reimbursable healthcare (to include psychological care) and forensic examinations for Service members and TRICARE eligible sexual assault victims, require commanders to include the following provisions: (i) Notify the SARC or SAPR VA. (ii) Local private or public sector providers shall have processes and procedures in place to assess that local community standards meet or exceed those set forth in the U.S. Department of Justice SAFE Protocol as a condition of the MOUs or MOAs. (38) Comply with collective bargaining obligations, if applicable. (39) Provide SAPR training and education for civilian employees of the military departments in accordance with Section 585 of Public Law 112-81. (40) In accordance with Section 572 of Public Law 112-239, establish a record on the disposition of any Unrestricted Report of rape, sexual assault, forcible sodomy, or an attempt to commit these offenses involving a member of the Military Services, whether such disposition is court-martial, nonjudicial punishment, or other administrative action. (i) The record of the disposition of an Unrestricted Report of sexual assault will, as appropriate, include information regarding: (A) Documentary information ( i.e., MCIO adult sexual assault investigative reports) collected about the incident, other than investigator case notes. (B) Punishment imposed, if any, including the sentencing by judicial or nonjudicial means, including incarceration, fines, restriction, and extra duty as a result of a military court-martial, federal or local court, and other sentencing, or any other punishment imposed. (C) Adverse administrative actions, if any, taken against the subject of the investigation. (D) Any pertinent referrals made for the subject of the investigation, offered as a result of the incident, such as drug and alcohol counseling and other types of counseling or intervention. (ii) The disposition records will be retained for a period of not less than 20 years. (A) Documentary information ( i.e., MCIO adult sexual assault investigative reports) will be retained in accordance with DoDI 5505.18. (B) Punishment imposed by nonjudicial or judicial means, adverse administrative actions, any pertinent referrals made for the subject of the investigation, and information from the records that satisfies the reporting requirements established in section 1631 of Public Law 111-383 will be incorporated into DSAID. (41) In accordance with DoD Directive 1350.2, require that the commander of each military command and other units specified by the Secretary of Defense for purposes of the policy will conduct, within 120 days after the commander assumes command and at least annually thereafter while retaining command, a climate assessment of the command or unit for purposes of preventing and responding to sexual assaults. (i) The climate assessment will include an opportunity for members of the Military Services to express their opinions regarding the manner and extent to which their leaders, including commanders, respond to allegations of sexual assault and complaints of sexual harassment and the effectiveness of such response. (ii) The compliance of commanding officers in conducting organizational climate assessments in accordance with section 572 of Public Law 112-239 as most recently amended by section 1721 of Public Law 113-291 must be verified and tracked. (42) Establish and publicize policies and procedures for reporting a sexual assault that will clearly explain both reporting options and who can receive Restricted Reports. Mandate the posting and wide dissemination of information about resources available to report and respond to sexual assaults, including the establishment of hotline phone numbers and Internet Web sites available to all members of the Military Services. (43) Mandate a general education campaign to notify members of the Military Services of the authorities available in accordance with chapter 79 of title 10, U.S.C., for the correction of military records when a member experiences any retaliatory personnel action for making a report of sexual assault or sexual harassment. (44) Require the SARCs and SAPR VAs to collaborate with designated Special Victims Investigation and Prosecution (SVIP) Capability personnel during all stages of the investigative and military justice process in accordance with DoDI 5505.19, to ensure an integrated capability, to the greatest extent possible, in accordance with DTM 14-003. (45) Require that, if a complaint of a sex-related offense is made against a Service member and he or she is convicted by court-martial or receives non-judicial punishment or punitive administrative action for that offense, a notation to that effect will be placed in the Service member's personnel service record, regardless of his or her grade. (i) A notation may NOT be placed in the restricted section of the Service member's personnel service record. (ii) “Sex-related offenses” include a violation of Articles 120, 120a, 120b, 120c, or 125 of the UCMJ ((sections 920, 920a, 920b, 920c, or 925 of title 10 U.S.C.) or an attempt to commit these offenses punishable under Article 80 of the UCMJ (section 880 of title 10 U.S.C.). (iii) The commanding officer of a facility, installation, or unit to which a Service member is permanently assigned or transferred will review the history of sex-related offenses as documented in the Service member's personnel service record. The purpose of this review is for commanders to familiarize themselves with such history of the Service member. (iv) The notation and review requirement should not limit or prohibit a Service member's capacity to challenge or appeal the placement of a notation, or location of placement of a notation, in his or her personnel service record in accordance with otherwise applicable service procedures. (46) In accordance with the requirements of section 1743 of Public Law 113-66 require the designated commander to submit a written incident report no later than 8 days after whichever happens first: (i) An Unrestricted Report of sexual assault has been made to a SARC or SAPR VA through a DD Form 2910; or (ii) An independent investigation has been initiated by an MCIO. (47) Require timely access to a SARC or SAPR VA by any member of the Reserve Component in accordance with § 105.2. (48) Require that the Military Service Academies include in their curricula substantive course work that addresses honor, respect, character development, leadership, and accountability, as they pertain to the issue of preventing sexual assault in the Military Services and providing the appropriate response to sexual assault when it occurs. (i) In addition to the substantive coursework in academy curricula, training will be provided within 14 days after the initial arrival of a new cadet or midshipman at the Military Service Academies and repeated annually thereafter. Training will be conducted in the manner described in § 105.15, using adult learning methods. (ii) Such training will include, at a minimum, a brief history of the problem of sexual assault in the Military Services, a definition of sexual assault, information relating to reporting a sexual assault, victims' rights, and dismissal and dishonorable discharge for offenders. (49) Ensure that the provisions of title 17 of Public Law 113-66 apply to the Military Service Academies as required by section 552 of Public Law 113-291. (50) Provide notice to a Service member, whenever he or she is required to complete Standard Form (SF) 86, “Questionnaire for National Security Positions,” in connection with an application, investigation, or reinvestigation for a security clearance, that it is DoD policy to answer “no” to question 21 of SF 86 with respect to consultation with a health care professional if: (i) The individual is a victim of a sexual assault; and (ii) The consultation occurred with respect to an emotional or mental health condition strictly in relation to the sexual assault. (51) Require the installation SARC and the installation FAP staff to coordinate when a sexual assault occurs as a result of domestic abuse, domestic violence, or involves child abuse, to ensure the victim is directed to FAP. (52) Require commanders to direct SARCs to provide information on incidents of sexual assault for inclusion in the Commander's Critical Information Requirements (CCIR) report. CCIR reportable incidents are those meeting criteria as determined by the Secretary of Defense. (53) Establish procedures to implement minimum standards for the qualifications necessary to be selected, trained, and certified for assignment as a SAPR Program Manager in accordance with USD(P&R) Memorandum, “Certification Standards for Department of Defense Sexual Assault Prevention and Response Program Managers.” (54) Establish a confidential process, utilizing boards for the correction of military records of the Military Departments by which a sexual assault victim during service in the Military may challenge the terms or the characterization of the discharge or separation on the grounds that the terms or characterization were adversely affected by being a sexual assault victim in accordance with section 547 of Public Law 113-291. (g) Chief, NGB. On behalf of and with the approval of the Secretaries of the Army and Air Force, and in coordination with DoD SAPRO and the State Adjutants General, the Chief, NGB, establishes and implements SAPR policy and procedures for eligible NG members, including the requirement for timely access to a SARC or SAPR VA by any NG member as required by section 584(a) of Public Law 112-81, as amended by section 1724 of Public Law 113-66. (h) Chairman of the Joint Chiefs of Staff. The Chairman of the Joint Chiefs of Staff shall monitor implementation of this part and 32 CFR part 103. (i) Commanders of the Combatant Commands. The Commanders of the Combatant Commands, through the Chairman of the Joint Chiefs of Staff and in coordination with the other Heads of the DoD Components, shall: (1) Require that a SAPR capability provided by the Executive Agent (see § 105.3) is incorporated into operational planning guidance in accordance with 32 CFR part 103 and this part. (2) Require the establishment of an MOU, MOA, or equivalent support agreement with the Executive Agent in accordance with 32 CFR part 103 and this part and requires at a minimum: (i) Coordinated efforts and resources, regardless of the location of the sexual assault, to direct optimal and safe administration of Unrestricted and Restricted Reporting options with appropriate protection, medical care, counseling, and advocacy. (A) Ensure a 24 hour per day, 7 day per week response capability. Require first responders to respond in a timely manner. (B) Response times shall be based on local conditions; however, sexual assault victims shall be treated as emergency cases. (ii) Notice to SARC of every incident of sexual assault on the military installation, so that a SARC or SAPR VA can respond and offer the victim SAPR services. In situations where a sexual assault victim receives medical care and a SAFE outside of a military installation through a MOU or MOA with a local private or public sector entities, as part of the MOU or MOA, the SARC or SAPR VA shall be notified and shall respond. 7. Amend § 105.7 by: a. Revising paragraph (a)(7). b. In paragraph (a)(8), removing “, sections 113 and 4331 of title 10, U.S.C.,” and “of this part.” c. In paragraph (a)(10), removing “fiscal year (FY)” and adding in its place “FY.” d. In paragraph (a)(12), removing “the development” and adding in its place “use.” e. In paragraph (a)(13), removing “Establish, oversee, publicize and maintain” and adding in its place “Maintain, oversee, and publicize.” f. In paragraph (a)(14), removing “Establish” and adding in its place “Maintain.” g. In paragraph (a)(15) introductory text, removing “Army Criminal Investigation Laboratory (USACIL)” and adding in its place “Defense Forensic Science Center (DFSC).” h. In paragraph (a)(15)(i), removing “USACIL” and adding in its place “DFSC.” i. In paragraph (a)(15)(ii), removing “USACIL” and adding in its place “DFSC” everywhere it appears. j. Redesignating paragraph (a)(16) as paragraph (a)(20), and adding paragraphs (a)(16) through (19). k. Adding paragraphs (a)(21) and (22). l. In paragraph (b)(1)(ii): i. Removing “Secretaries” and adding in its place “Secretary.” ii. Removing “Departments of the Army and the Air Force” and adding in its place “Department of the Army.” m. Redesignating paragraph (b)(1)(iii) through (v) as paragraphs (b)(1)(iv) through (vi), and adding a new paragraph (b)(1)(iii). n. In newly redesignated paragraph (b)(1)(vi), removing “Public Law 100-504” and adding in its place “title 5 U.S.C., also known as “The Inspector General Act of 1978.' ” o. Revising paragraph (b)(2)(ii). p. In paragraph (b)(2)(iv), in the first sentence, removing “WIPTs” and adding in its place “working groups” and, in the second sentence, removing “WIPTs” and adding in its place “Working groups”. q. In paragraph (b)(3)(iii), removing “WIPTs” and adding in its place “working groups” everywhere it appears. The revisions and additions read as follows: § 105.7 Oversight of the SAPR Program. (a) * * * (7) Develop oversight metrics to measure compliance and effectiveness of SAPR training, sexual assault awareness, prevention, and response policies and programs. Collect and maintain data in accordance with these metrics, analyze data, and make recommendations regarding SAPR policies and programs to the USD(P&R) and the Secretaries of the Military Departments. (16) Act as the DoD liaison between the DoD and other federal and State agencies on programs and efforts relating to sexual assault prevention and response. (17) Oversee development of strategic program guidance and joint planning objectives for resources in support of the sexual assault prevention and response program, and make recommendations on modifications to policy, law, and regulations needed to ensure the continuing availability of such resources. (18) Quarterly include Military Service Academies as a SAPR IPT standard agenda item, and semi-annually meet with the academy superintendents to facilitate oversight of the implementation of SAPR programs. (19) Develop and administer standardized and voluntary surveys for victims of sexual assault on their experiences with SAPR victim assistance, the military health system, the military justice process, and other areas of support. The surveys will be regularly offered to victims and administered in a way that protects victim privacy and does not adversely impact the victim's legal, career, and health status. (21) Participate in the DoD Victim Assistance Leadership Council in accordance with DoDI 6400.07. (22) Maintain the SAPRO awards program recognizing SARCS and/or SAPR VAs or SAPR programs within the Military Departments, and with consent of the Secretary of the Department of Homeland Security, the SARCS and/or SAPR VAs of the Department of Homeland Security. (b) * * * (1) * * * (iii) Director, Air Force Sexual Assault Prevention and Response Program. (2) * * * (ii) Serve as the implementation and oversight arm of the DoD SAPR Program. Coordinate policy and review the DoD's SAPR policies and programs consistent with this part and 32 CFR part 103, as necessary. Monitor the progress of program elements, to include DoD SAPR Strategic Plan tasks, DoD Sexual Assault Prevention Strategy tasks, and NDAA implementation for adult sexual assault related issues. 8. Amend § 105.8 by: a. In paragraph (a) introductory text: i. Redesignating footnote 6 as footnote 5. ii. Adding the words “in accordance with 32 CFR part 103” at the end of the last sentence. b. Revising paragraphs (a)(1), (a)(2) introductory text, (a)(2)(i), (a)(2)(iii) through (v), (a)(3)(ii) and (iii), and (a)(4). c. In paragraph (a)(5)(i), removing “and non-commissioned officer chain of command” and adding in its place “or non-commissioned officer chain of command.” d. In paragraph (a)(5)(ii), removing “or” and adding “, assigned SVC/VLC, legal assistance officer, or chaplain” after “healthcare personnel.” e. Revising paragraphs (a)(6) introductory text, (a)(6)(ii), and (a)(7). f. Adding paragraph (a)(8). g. Revising paragraph (b). h. In paragraph (c) introductory text, removing “complete Unrestricted Reporting” and adding in its place “Unrestricted Reporting”; and removing “pursue accountability” and adding in its place “pursue offender accountability.” i. In paragraph (c)(1), removing “alleged offender accountable” and adding in its place “alleged offender appropriately accountable.” j. Revising paragraphs (d), (e)(2) introductory text, and (e)(2)(ii) and (iii). l. In paragraph (e)(2)(iv), removing “victim treatment” and adding in its place “victim healthcare.” m. In paragraph (e)(2)(v), removing “a duly authorized trial counsel subpoena” and adding in its place “a duly authorized subpoena.” n. In paragraph (e)(3): i. Removing “DoD Directive 5400.11-R” and adding in its place “DoD Directive 5400.11 and DoD 6025.18-R” and removing footnote 7. ii. Removing “or State statute” and adding in its place “or another Federal or State statute.” o. Revising paragraphs (e)(4) and (5). p. In paragraph (f), removing “offender or the victim” and adding in its place “alleged offender or the victim.” q. Adding paragraph (g). The revisions and additions read as follows: § 105.8 Reporting options and sexual assault reporting procedures. (a) * * * (1) Unrestricted reporting. This reporting option triggers an investigation, command notification, and allows a person who has been sexually assaulted to access healthcare treatment and the assignment of a SARC and a SAPR VA. When a sexual assault is reported through Unrestricted Reporting, a SARC shall be notified, respond or direct a SAPR VA to respond, and offer the victim healthcare treatment and a SAFE, and inform the victim of available resources. The SARC or SAPR VA will explain the contents of the DD Form 2910 and request that the victim elect a reporting option on the form. If the victim elects the Unrestricted Reporting option, a victim may not change from an Unrestricted to a Restricted Report. If the Unrestricted option is elected, the completed DD Form 2701, which sets out victims' rights and points of contact, shall be distributed to the victim in Unrestricted Reporting cases by DoD law enforcement agents. If a victim elects this reporting option, a victim may not change from an Unrestricted to a Restricted Report. (2) Restricted reporting. This reporting option does not trigger an investigation. The command is notified that “an alleged sexual assault” occurred, but is not given the victim's name or other personally identifying information. Restricted Reporting allows Service members and military dependents who are adult sexual assault victims to confidentially disclose the assault to specified individuals (SARC, SAPR VA, or healthcare personnel) and receive healthcare treatment and the assignment of a SARC and SAPR VA at DoD installations. A sexual assault victim can report directly to a SARC, who will respond or direct a SAPR VA to respond, and offer the victim healthcare treatment and a SAFE, and explain to the victim the resources available through the DD Form 2910, where the reporting option is elected. The Restricted Reporting option is only available to Service members and adult military dependents. Restricted Reporting may not be available in all cases, (See §§ 105.3 and 105.8(a)(6).) If a victim elects this reporting option, a victim may convert a Restricted Report to an Unrestricted Report at any time. The conversion to an Unrestricted Report will be documented with a signature by the victim and the signature of the SARC or SAPR VA in the appropriate block on the DD Form 2910. (i) Only the SARC, SAPR VA, and healthcare personnel are designated as authorized to accept a Restricted Report. Healthcare personnel, to include psychotherapist and other personnel listed in Military Rules of Evidence (MRE) 513 pursuant to the Manual for Courts-Martial, United States, who received a Restricted Report (meaning that a victim wishes to file a DD Form 2910 or have a SAFE) shall contact a SARC or SAPR VA in accordance with requirements in § 105.11, to assure that a victim is offered SAPR services and so that a DD Form 2910 can be completed and retained. (iii) In the course of otherwise privileged communications with a chaplain, SVC/VLC, or legal assistance attorney, a victim may indicate that he or she wishes to file a Restricted Report. If this occurs, a chaplain, SVC/VLC, and legal assistance attorney shall, with the victim's consent, facilitate contact with a SARC or SAPR VA to ensure that a victim is offered SAPR services and so that a DD Form 2910 can be completed. A chaplain, SVC/VLC, or legal assistance attorney cannot accept a Restricted Report. (iv) A victim has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication between a victim and a SARC and SAPR VA, in a case arising under the UCMJ, if such communication is made for the purpose of facilitating advice or supportive assistance to the victim in accordance with MRE 514 of the Manual for Courts-Martial, United States. (v) A sexual assault victim certified under the personnel reliability program (PRP) is eligible for both the Restricted and Unrestricted Reporting options. If electing Restricted Reporting, the victim is required to advise the competent medical authority of any factors that could have an adverse impact on the victim's performance, reliability, or safety while performing PRP duties. If necessary, the competent medical authority will inform the certifying official that the person in question should be suspended or temporarily decertified from PRP status, as appropriate, without revealing that the person is a victim of sexual assault, thus preserving the Restricted Report. (3) * * * (ii) The victim's decision not to participate in an investigation or prosecution will not affect access to SARC and SAPR VA services, medical and psychological care, or services from an SVC or VLC. These services shall be made available to all eligible sexual assault victims. (iii) If a victim approaches a SARC, or SAPR VA, or healthcare provider and begins to make a report, but then changes his or her mind and leaves without signing the DD Form 2910 (the form where the reporting option is selected), the SARC, SAPR VA, or healthcare provider is not under any obligation or duty to inform investigators or commanders about this report and will not produce the report or disclose the communications surrounding the report. If commanders or law enforcement ask about the report, disclosures can only be made in accordance with exceptions to the MRE 514 or MRE 513 privilege, as applicable. (4) Disclosure of confidential communications. In cases where a victim elects Restricted Reporting, the SARC, SAPR VA, and healthcare personnel may not disclose confidential communications or the SAFE and the accompanying Kit to DoD law enforcement or command authorities, either within or outside the DoD, except as provided in this part. In certain situations, information about a sexual assault may come to the commander's or DoD law enforcement official's (to include MCIO's) attention from a source independent of the Restricted Reporting avenues and an independent investigation is initiated. In these cases, a SARC, SAPR VA, and healthcare personnel are prevented from disclosing confidential communications under Restricted Reporting, unless an exception applies. An independent investigation does not, in itself, convert the Restricted Report to an Unrestricted Report. Thus, a SARC, SAPR VA, or healthcare personnel in receipt of confidential communications are prohibited from disclosure in an independent investigation. Improper disclosure of confidential communications or improper release of medical information are prohibited and may result in disciplinary action pursuant to the UCMJ or other adverse personnel or administrative actions. (6) Independent investigations. Independent investigations are not initiated by the victim. If information about a sexual assault comes to a commander's attention from a source other than a victim (victim may have elected Restricted Reporting or where no report has been made by the victim), that commander shall immediately report the matter to an MCIO and an official (independent) investigation may be initiated based on that independently acquired information. (ii) The timing of filing a Restricted Report is crucial. In order to take advantage of the Restricted Reporting option, the victim must file a Restricted Report by signing a DD Form 2910 before the SARC is informed of an ongoing independent investigation of the sexual assault. (A) If a SARC is notified of an ongoing independent investigation and the victim has not signed a DD Form 2910 electing Restricted Report, the SARC must inform the victim that the option to file a Restricted Report is no longer available. However, all communications between the victim and the victim advocate will remain privileged except for the application of an exception to Restricted Reporting (B) If an independent investigation begins after the victim has formally elected Restricted Reporting (by signing the DD Form 2910), the independent investigation has no impact on the victim's Restricted Report and the victim's communications and SAFE Kit remain confidential, to the extent authorized by law and DoD regulations. (7) Mandatory reporting laws and cases investigated by civilian law enforcement. To the extent possible, DoD will honor the Restricted Report; however, sexual assault victims need to be aware that the confidentiality afforded their Restricted Report is not guaranteed due to circumstances surrounding the independent investigation or the SARC, in consultation with their respective staff judge advocates, determine that disclosure of personally identifiable information of the victim or alleged perpetrator is necessary to prevent or mitigate an imminent threat to health and safety of the victim or another person. (8) Preemption of State law to ensure confidentiality of restricted report. Pursuant to section 1565b(b)(3) of title 10, United States Code, as amended by Section 536 of Public Law 114-92, a member of the armed forces, or a dependent of a member, who is the victim of a sexual assault may elect to confidentially disclose the details of the assault to a Sexual Assault Response Coordinator, a Sexual Assault Victim Advocate, or healthcare personnel as defined in DoD regulations, receive medical treatment, legal assistance or counseling, without initiating an official investigation of the allegations. Any state or local law or regulation that would requires an individual who is a Sexual Assault Response Coordinator, a Sexual Assault Victim Advocate, or individual within the definition of healthcare personnel to disclose the personally identifiable information of the adult victim or alleged perpetrator of the sexual assault to a state or local law enforcement agency shall not apply, except when reporting is necessary to prevent or mitigate a serious and imminent threat to the health and safety of the victim or another person, as determined by an authorized Department of Defense official. (b) Initiating medical care and treatment upon receipt of report. Healthcare personnel will initiate the emergency care and treatment of sexual assault victims, notify the SARC or the SAPR VA in accordance with § 105.11, and make appropriate medical referrals for specialty care, if indicated. Upon receipt of a Restricted Report, only the SARC or the SAPR VA will be notified. There will be no report to DoD law enforcement, a supervisory official, or the victim's chain of command by the healthcare personnel, unless an exception to Restricted Reporting applies or applicable law requires other officials to be notified. Regardless of whether the victim elects Restricted or Unrestricted Reporting, confidentiality of medical information will be maintained in accordance with applicable laws and regulations. (d) Reports and commanders —(1) Unrestricted reports to commanders. The SARC shall provide the installation commander and the immediate commander of the sexual assault victim (if a civilian victim, then the immediate commander of alleged military offender) with information regarding all Unrestricted Reports within 24 hours of an Unrestricted Report of sexual assault. This notification may be extended by the commander to 48 hours after the Unrestricted Report of the incident when there are extenuating circumstances in deployed environments. SARC and SAPR VA communications with victims are protected under the MRE 514 privilege. For Unrestricted Reports, the 8-day incident report will be filed in accordance with section 1743 of Public Law 113-66. (2) Restricted reports to commanders. For the purposes of public safety and command responsibility, in the event of a Restricted Report, the SARC shall report non-PII concerning sexual assault incidents (without information that could reasonably lead to personal identification of the victim or the alleged assailant (see exception in § 105.8(e)(2)(ii)) only to the installation commander within 24 hours of the report. This notification may be extended by the commander to 48 hours after the Restricted Report of the incident when there are extenuating circumstances in deployed environments. To ensure oversight of victim services for Restricted Report cases, the SARC will also confirm in her or his report that the victim has been offered SAPR advocacy services, an explanation of the notifications in the DD Form 2910; medical and mental healthcare and informed of his or her eligibility for an SVC/VLC. The 8-day incident report is not required for Restricted Reports in accordance with section 1743 of Public Law 113-66. SARC and SAPR VA communications with victims are protected by the Restricted Reporting option and the MRE 514 privilege, U.S. Department of Defense, Manual for Courts-Martial, United States. (i) Even if the victim chooses not to convert to an Unrestricted Report, or provide PII, the non-PII information provided by the SARC makes the installation commander aware that a sexual assault incident was reported to have occurred. Restricted Reporting gives the installation commander a clearer picture of the reported sexual assaults within the command. The installation commander can then use the information to enhance preventive measures, to enhance the education and training of the command's personnel, and to scrutinize more closely the organization's climate and culture for contributing factors. (ii) Neither the installation commander nor DoD law enforcement may use the information from a Restricted Report for investigative purposes or in a manner that is likely to discover, disclose, or reveal the identities of the victims unless an exception to Restricted Reporting applies. Improper disclosure of Restricted Reporting information may result in disciplinary action or other adverse personnel or administrative actions. (e) * * * (2) The following exceptions to the prohibition against disclosures of Restricted Reporting authorize a disclosure of a Restricted Report only when the SJA consultation described as provided in paragraphs (f) and (g) of this section has occurred and only if one or more of the following conditions apply: (ii) Disclosure of the personally identifiable information of the military victim or their adult dependent is necessary to prevent or mitigate a serious and imminent threat to the health or safety of the victim or another person. For example, multiple reports involving the same alleged offender (repeat offender) could meet this criterion. See similar safety and security exceptions in MRE 514, U.S. Department of Defense, Manual for Courts-Martial, United States. (iii) Required for fitness for duty or disability determinations. This disclosure is limited to only the information necessary to process duty or disability determinations for Service members. Disclosure of a Restricted Report under these circumstances does not change the nature of the victim's Restricted Report, nor does it create an obligation for reporting to law enforcement or command for investigation. (4) The SARC or SAPR VA shall inform the victim when a disclosure in accordance with the exceptions in this section is made. Whenever possible, the victim should be notified in advance of the disclosure. (5) If a SARC, SAPR VA, or healthcare personnel make an unauthorized disclosure of a confidential communication, that person is subject to disciplinary action. Unauthorized disclosure has no impact on the status of the Restricted Report. All Restricted Reporting information is still confidential and protected, to the extent authorized by law and this part. However, unauthorized or inadvertent disclosures made to a commander or law enforcement shall result in notification to the MCIO. (g) Resources for victims to report retaliation, reprisal, ostracism, maltreatment, sexual harassment, or to request an expedited/safety transfer or military protective order (MPO)/civilian protective order (CPO). SARCs and SAPR VAs must inform victims of the resources available to report instances of retaliation, reprisal, ostracism, maltreatment, sexual harassment, or to request a transfer or MPO. If the allegation is criminal in nature and the victim filed an Unrestricted Report, the crime should be immediately reported to an MCIO, even if the crime is not something normally reported to an MCIO ( e.g., victim's personal vehicle was defaced). Victims can seek assistance on how to report allegations by requesting assistance from: (1) A SARC or SAPR VA or SVC/VLC. (2) A SARC on a different installation, which can be facilitated by the Safe Helpline. (3) Their immediate commander. (4) A commander outside their chain of command. (5) Service personnel to invoke their Service-specific reporting procedures regarding such allegations in accordance with AD 2014/AFI 36-2909/SECNAVINST 5370.7D. (6) Service Military Equal Opportunity (MEO) representative to file a complaint of sexual harassment. (7) A G/FO if the retaliation, reprisal, ostracism, or maltreatment involves the administrative separation of victims within 1 year of the final disposition of their sexual assault case. A victim may request that the G/FO review the separation in accordance with DoDI 1332.14 (enlisted personnel) or DoDI 1332.30 (commissioned officers). (8) A G/FO if the victim believes that there has been an impact on their military career because they reported a sexual assault or sought mental health treatment for sexual assault that the victim believes is associated with the sexual assault. The victim may discuss the impact with the G/FO. (9) An SVC or VLC, trial counsel and VWAP, or a legal assistance attorney to facilitate reporting with a SARC or SAPR VA. (10) Service personnel to file a complaint of wrongs in accordance with Article 138 of the UCMJ (section 938 of title 10 U.S.C.) (11) IG DoD, invoking whistle-blower protections in accordance with DoDD 7050.06. (12) Commander or SARC to request an Expedited Transfer. (13) Commander or SARC to request a safety transfer or an MPO and/or CPO, if the victim is in fear for her or his safety. (14) The MCIO, if the allegation is of an act that is criminal in nature and the victim filed an Unrestricted Report. The allegation should immediately be reported to an MCIO. 9. Revise § 105.9 to read as follows: § 105.9 Commander and management SAPR procedures. (a) SAPR management. Commanders, supervisors, and managers at all levels are responsible for the effective implementation of the SAPR program and policy. Military and DoD civilian official [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-21874. Public record. Not legal advice.