Delivery of Personnel to United States Civilian Authorities for Trial

Federal RegisterJun 1, 1999

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DEPARTMENT OF DEFENSE

Department of the Air Force

32 CFR Part 884

RIN 0701-AA59

Delivery of Personnel to United States Civilian Authorities for

Trial

AGENCY: Department of the Air Force, DoD.

ACTION: Proposed rule.

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SUMMARY: The Department of the Air Force is revising 32 CFR Part 884,

Delivery of Personnel to United States Civilian Authorities for Trial

of the Code of Federal Regulations to reflect current policies. Part

884 is the Air Force Instruction establishing procedures for making Air

Force members, civilian personnel, and family members available to U.S.

civilian authorities for trial or specified court appearances. It

updates the process for delivery of personnel to civilian authorities

for trial.

DATES: Written comments must be received by August 2, 1999.

ADDRESSES: Send written comments to: Lt. Col. Tom Jaster, AFLSA/JAJM,

112 Luke Avenue, Suite 343, Bolling Air Force Base, DC 20332-8000, 202-

767-1539.

FOR FURTHER INFORMATION CONTACT: Lt. Col. Tom Jaster, AFLSA/JAJM, 202-

767-1539.

SUPPLEMENTARY INFORMATION: Part 884 implements Department of Defense

(DoD) Directive 5525.9, Compliance of DoD Members, Employees, and

Family Members Outside the United States With Court Orders, December

27, 1988 and AFPD 51-10, Making Military Personnel, Employees, and

Dependents Available to Civilian Authorities.

(Authority: 10 U.S.C. 814, 10 U.S.C. 8013; Sec. 721(a) Pub. L. 100-

456, 102 Stat. 2001)

List of Subjects in 32 CFR Part 884

Courts, Government employees, Law enforcement, Military personnel.

For the reasons set forth in the preamble, the Department of the

Air Force proposes to revise 32 CFR Part 884 as follows:

PART 884--DELIVERY OF PERSONNEL TO UNITED STATES CIVILIAN

AUTHORITIES FOR TRIAL

Sec.

884.0 Purpose.

884.1 Authority.

884.2 Assigned responsibilities.

884.3 Placing member under restraint pending delivery.

884.4 Release on bail or recognizance.

884.5 Requests under the interstate agreement on Detainer's Act.

884.6 Requests by Federal authorities for military personnel

stationed within the United States and its possessions.

884.7 Requests by state and local authorities when the requested

member is located in that state.

884.8 Request for delivery by state authorities when the member is

located in a different state.

884.9 Requests for custody of members stationed outside the United

States.

884.10 Returning members, employees, and family members from

overseas.

884.11 Procedures for return of an Air Force member to the United

States.

884.12 Delays in returning members to the United States.

884.13 Denials of a request for return of a member to the United

States.

884.14 Compliance with court orders by civilian employees and

family members.

884.15 Procedures involving a request by Federal or state

authorities for custody of an overseas civilian employee or a

command-sponsored family member.

884.16 Reporting requests for assistance and action.

884.17 Commander's instruction letter to member.

884.18 Civilian authority's acknowledgment of transfer of custody

and agreement to notify member's commander.

Authority: 10 U.S.C. 814; 10 U.S.C. 8013; Sec. 721(a), Pub. L.

100-456, 102 Stat. 2001.

Sec. 884.01 Purpose.

This part establishes procedures for making Air Force members,

civilian personnel, and family members available to U.S. civilian

authorities for trial or specified court appearances. It implements 32

CFR part 146. This part does not confer any rights, benefits,

privileges, or form of due process procedure upon any individuals.

Sec. 884.1 Authority.

A general court-martial convening authority (GCMCA) may authorize

delivery of a member of that command to Federal or state civil

authorities. The GCMCA may delegate this authority to an installation

or equivalent commander. See AFPD 51-10, Making Military Personnel,

Employees, and Dependents Available to Civilian Authorities,\1\

paragraphs 8 and 9, for sources of authority.

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\1\ Air Force publications may be obtained through NTIS, 5285

Port Royal Road, Springfield, VA 22161, if not available online at

http://afpubs.hq.af.mil.

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Sec. 884.2 Assigned responsibilities.

(a) The Under Secretary of Defense (USD), Personnel & Readiness

(P&R), is the denial authority for all requests for return of members

to the United States for delivery to civilian authorities when the

request falls under Sec. 884.9(e).

(b) The Air Force Judge Advocate General (TJAG) may approve

requests that fall under Sec. 884.9(e) or recommend denial of such

requests. TJAG or a designee may approve or deny:

(1) Requests for return of members to the United States for

delivery to civilian authorities when the request falls under

Sec. 884.9(f).

(2) Requests for delays of up to 90 days in completing action on

requests for return of members to the United States for delivery to

civilian authorities.

(HQ AFLSA/JAJM), 172 Luke Avenue, Suite 343, Bolling AFB, DC 20332-

5113, processes requests for return of members to the United States for

delivery to civilian authorities and notifies requesting authorities of

decisions on requests. HQ AFLSA/JAJM completes action on requests

within 30 days after receipt of the request, unless a delay is granted;

they send all reports and notifications to USD/P&R and to the DoD

General Counsel (DoD/GC), as required by this part; and they handle all

communications with requesters.

[[Page 29253]]

Sec. 884.3 Placing member under restraint pending delivery.

Continue restraint only as long as is reasonably necessary to

deliver the member to civilian authorities. See AFPD 51-10, paragraph

5. To determine whether probable cause exists and whether a reasonable

belief exists that restraint is necessary, the commander should refer

to the Manual for Courts-Martial (MCM), 1984, specifically, Rules for

Courts-Martial (RCM) 305(h)(2)(B), and the discussion following it. The

requirement for the formal review of restraint found in MCM 1984, RCM

305, and AFI 51-201, Military Justice Guide,\2\ does not apply.

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\2\ See footnote 1 in Sec. 884.1.

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Sec. 884.4 Release on bail or recognizance.

(a) Before delivering an Air Force member to a civilian authority,

the commander or designee directs the member in writing to report to a

designated Air Force unit, activity, or recruiting office for further

instructions in the event the civilian authority releases the member

(see Sec. 884.17). The commander designates the member's unit, if the

civilian authority is in the immediate vicinity of the member's base.

The commander advises the designated Air Force unit, activity, or

recruiting office of the situation. Once the member has been released

and has reported to the designated authority, it immediately sends the

member's name, rank, Social Security number (SSN), organization, and

other pertinent information to the member's commander, who then

provides further instructions.

(b) The member's commander notifies the military personnel flight

(MPF) of the situation. In turn, the MPF provides an information copy

to the Air Force Personnel Center (AFPC) assignment office responsible

for the member's Air Force specialty code (AFSC), as listed in AFMAN

36-2105, Officer Classification,\3\ or AFMAN 36-2108, Airman

Classification.\3\ If contact cannot be made with the member's

commander, the Air Force unit, activity, or recruiting office

previously designated by the commander obtains instructions from HQ

AFPC/DPMARS or DPMRPP2.

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\3\ See footnote 1 in Sec. 884.1.

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Sec. 884.5 Requests under the interstate agreement on Detainer's Act.

When either the prisoner or state authorities make a request under

the Detainer's Act, follow the procedures in Title 18 U.S.C. App.

Section 1, et seq. The Act applies only to a person who has entered

upon a term of imprisonment in a penal or correctional institution and

is, therefore, inapplicable to members in pretrial confinement.

Sec. 884.6 Request by Federal authorities for military personnel

stationed within the United States and its possessions.

(a) When Federal authorities request the delivery of service

members, the Air Force will normally deliver service members when the

request is accompanied by a warrant issued pursuant to the Federal

Rules of Criminal Procedure, rule 4, or when a properly identified

Federal officer represents that such a warrant has been issued.

(b) A U.S. marshal, deputy marshal, or other officer authorized by

law will call for and take into custody persons desired by Federal

authorities for trial. The officer taking custody must execute a

statement in substantially the form set out in Sec. 884.18.

Sec. 884.7 Requests by state and local authorities when the requested

member is located in that state.

(a) The Air Force normally will turn over to the civilian

authorities of the state, upon their request, Air Force members charged

with an offense against state or local law. Each request by such

civilian authorities for the surrender of a member of the Air Force

should normally be accompanied by a copy of an indictment, information,

or other document used in the state to prefer charges, or a warrant

that reflects the charges and is issued by a court of competent

jurisdiction.

(b) Before making delivery to civilian authorities of a state, the

commander having authority to deliver will obtain a written agreement,

substantially in the form of Sec. 884.18, from a duly authorized

officer of the state.

conditions set out in the form, the commander may authorize

modification. The requirements of the agreement are substantially met

when the state authority informs the accused's commander of the

accused's prospective release for return to military authorities and

when the state furnishes the accused transportation back to his or her

station, together with necessary funds to cover incidental expenses en

route. The accused's commander provides copies of the statement or

agreement of this section and in Sec. 884.6(b) to the civilian

authority to whom the member was delivered and to the Air Force unit,

activity, or recruiting office nearest to the place of trial designated

in the agreement as the point of contact in the event of release on

bail or on recognizance (see Sec. 884.4). The accused's commander

immediately notifies the civilian authority if the member has been

discharged from the Air Force.

Sec. 884.8 Request for delivery by state authorities when the member

is located in a different state.

(a) This part applies to members who are located in the United

States. With respect to the extradition process, Air Force personnel

have the same status as persons not in the Armed Forces. Accordingly,

if a state other than the state in which the member is located requests

the delivery of a military member, in the absence of a waiver of

extradition process by the member concerned, that state must use its

normal extradition procedures to make arrangements to take the

individual into custody in the state where he or she is located.

(b) The Air Force will not transfer a military member from a base

within one state to a base within another state for the purpose of

making the member amenable to prosecution by civilian authorities.

Sec. 884.9 Request for custody of members stationed Outside the United

States.

(a) Authority. This section implements Pub. L. 100-456, section

721(a), and DoD Directive 5525.9, December 27, 1988.

(b) The Air Force expects members to comply with orders issued by

Federal or state court of competent jurisdiction, unless noncompliance

is legally justified. Air Force members who persist in noncompliance

are subject to adverse administrative action, including separation for

cause under AFI 36-3206, Administrative Discharge Procedures, and AFI

36-3208, Administrative Separation of Airmen.

assignments or officially sponsored residence outside the United States

to avoid compliance with valid orders of Federal or state court of

competent jurisdiction.

(d) Noncompliance with a court order may be legally justified when

the individual can adequately demonstrate that the conduct, which is

the subject of the complaint or request, was sanctioned by supplemental

court orders, equally valid court orders of other jurisdictions, good

faith legal efforts to resist the request, or other reasons. HQ USAF/

JAG, HQ AFLSA/JACA, and Air Force legal offices in the jurisdiction

concerned will provide legal support to servicing staff judge advocates

who request assistance in reviewing these issues.

[[Page 29254]]

(e) When Federal, state, or local authorities request delivery of

an Air Force member stationed outside the United States who is

convicted of or charged with a felony or other serious offense or who

is sought by such authorities in connection with the unlawful or

contemptuous taking of a child from the jurisdiction of a court or from

the lawful custody of another person, the member's commander will

normally expeditiously return the member to the United States for

delivery to the requesting authorities.

(1) A serious offense is defined as one punishable by confinement

for more than 1 year under the laws of the requesting jurisdiction.

(2) Delivery of the member is not required if the controversy can

be resolved without returning the member to the United States or if the

request for delivery of the member is denied in accordance with this

instruction.

(f) Ordinarily, do not return an Air Force member stationed outside

the United States to the United States for delivery to civilian

authorities if the offense is not specified in paragraph (e) of this

section. TJAG may direct return when deemed appropriate under the facts

and circumstances of the particular case.

(g) Before taking action under this section, give the member the

opportunity to provide evidence of legal efforts to resist the court

order or process sought to be enforced or otherwise to show legitimate

cause for noncompliance.\4\

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\4\ See footnote in Sec. 884.1

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Sec. 884.10 Returning members, employees, and family members from

overseas.

The Air Force expects persons overseas wanted by Federal or state

authorities to make themselves available to those authorities for

disposition. If they do not, DoD Directive 5525.9, Compliance of DoD

Members, Employees, and Family Members Outside the United States With

Court Orders, 10 U.S.C 814, and Pub. L. 100-456 721(a), authorize and

require commanders to respond promptly to requests from civilian

authorities for assistance in returning members, civilian employees,

and family members from overseas.

Sec. 884.11 Procedures for return of an Air Force member to the United

States.

(a) Include the following information in a request for return of an

Air Force member to the United States for delivery to civilian

authorities:

(1) Fully identify the member sought by providing the member's

name, grade, SSN, and unit of assignment, to the extent the information

is known.

(2) Specify the offense for which the member is sought. If the

member is charged with a crime, specify the maximum punishment under

the laws of the requesting jurisdiction. Specify whether the member is

sought in connection with the unlawful or contemptuous taking of a

child from the jurisdiction of a court or the lawful custody of

another.

(3) Include copies of all relevant requests for assistance,

indictments, information, or other instruments used to bring charges,

all relevant court orders or decrees, and all arrest warrants, writs of

attachment or capias (writs authorizing arrests), or other process

directing or authorizing the requesting authorities to take the member

into custody. Also, include reports of investigation and other

materials concerning the background of the case if reasonably

available.

(4) Indicate whether the requesting authorities will secure the

member's lawful delivery or extradition from the port of entry to the

requesting jurisdiction, whether they will do so at their own expense,

and whether they will notify HQ AFLSA/JAJM of the member's release from

custody and of the ultimate disposition of the matter.

(5) Any U.S. attorney or assistant U.S. attorney, governor or other

duly authorized officer of a requesting state or local jurisdiction, or

the judge, magistrate, or clerk of a court of competent jurisdiction

must sign the request.

(b) Civilian authorities making requests for return of members to

the United States for delivery to them should direct their request to

HQ AFLSA/JAJM. If another Air Force agency or official receives the

request, immediately send it to HQ AFLSA/JAJM.

member's commander, who consults with the servicing staff judge

advocate. The commander provides a report of relevant facts and

circumstances and recommended disposition of the request through

command channels to HQ AFLSA/JAJM. If the commander recommends denial

of the request or a delay in processing or approving it, the commander

provides the information specified in Sec. 884.12(a)(1) through (a)(4)

or Sec. 884.13(a)(1) through (a)(4).

(d) After proper authority has approved a request for return of a

member to the United States for delivery to civilian authorities, HQ

AFLSA/JAJM notifies AFPC of the decision to return the member to the

United States. AFPC issues permanent change of station (PCS) orders,

assigning the member to an installation as close to the requesting

jurisdiction as possible, considering the needs of the Air Force for

personnel in the member's rank and AFSC.

(e) HQ AFLSA/JAJM notifies requesting authorities of the member's

new assignment, port of entry into the United States, and estimated

time of arrival. Except during unusual circumstances, HQ AFLSA/JAJM

notifies requesting authorities at least 10 days before the member's

return.

Sec. 884.12 Delays in returning members to the United States.

(a) On a request to return a member to the United States for

delivery to civilian authorities, TJAG may grant a delay of not more

than 90 days in completing action when one or more of the following are

present:

(1) Efforts are in progress to resolve the controversy to the

satisfaction of the requesting authorities without the member's return

to the United States.

(2) Additional time is required to permit the member to provide

satisfactory evidence of legal efforts to resist the request or to show

legitimate cause for noncompliance.

(3) Additional time is required to permit the commander to

determine the specific effect of the loss of the member on command

mission and readiness or to determine pertinent facts and circumstances

relating to any international agreement, foreign judicial proceeding,

DoD, Air Force, or other military department investigation or court-

martial affecting the member.

(4) Other unusual facts or circumstances warrant delay.

(b) AFLSA/JAJM promptly reports all delays in cases falling under

AFPD 51-10,5 paragraph 3, through SAF/GC and SAF/MI to USD/

P&R and to DoD/GC

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\5\ See footnote 1 in Sec. 884.1.

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under AFPD 51-10, paragraph 3, unless approved by USD/P&R.

Sec. 884.13 Denials of a request for return of a member to the United

States.

(a) A request for return of a member to the United States for

delivery to civilian authorities may be denied when:

(1) The member's return would have an adverse impact on operational

readiness or mission requirements.

(2) An international agreement precludes the member's return.

(3) The member is the subject of foreign judicial proceedings,

court-martial, or a DoD, Air Force, or other military department

investigation.

[[Page 29255]]

(4) The member showed satisfactory evidence of legal efforts to

resist the request or other legitimate cause for noncompliance or when

other unusual facts or circumstances warrant a denial.

(b) Commanders promptly send to HQ AFLSA/JAJM information

supporting a determination that denial may be appropriate. In cases

warranting denial, TJAG promptly sends a recommendation and supporting

documentation, through SAF/GC and SAF/MI, to USD/P&R for decision.

by itself authorize noncompliance or a delay in compliance with any

provision of this section, but TJAG may consider a pending request for

denial in determining whether to grant a delay.

Sec. 884.14 Compliance with court orders by civilian employees and

family members.

(a) The Air Force expects civilian employees and family members to

comply with orders issued by Federal or state court of competent

jurisdiction, unless noncompliance is legally justified. Air Force

civilian employees who persist in noncompliance are subject to adverse

administrative action, including separation for cause as provided in

AFI 36-704, Discipline and Adverse Actions (PA).6

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\6\ See footnote 1 in Sec. 884.1.

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(b) Air Force officials ensure that civilian personnel and family

members do not use assignments or officially sponsored residence

outside the United States to avoid compliance with valid orders of

Federal or state court of competent jurisdiction.

Sec. 884.15 Procedures involving a request by Federal or state

authorities for custody of an overseas civilian employee or a command-