DELIVERY AGREEMENTS

In each case where a member is to be delivered to civil authorities for trial, you need to be familiar with the procedures involved in delivering that person to state, federal, or foreign authorities. You also need to be familiar with the circumstances under which delivery may be refused. Let us now look at these procedures in more detail.

DELIVERY TO STATE AUTHORITIES

When delivry of any member of the Navy or Marine Corps to the civilian authorities of a state is authorized, the member's CO must, before making delivery, obtain from the governor or other authorized officer of the state a written agreement that conforms to the agreement shown in figure 10-2.

The state official completing the agreement must show that he or she is authorized to bind the state to the terms of the agreement. When indicating in the agreement the Navy or Marine Corps activity to which the member delivered is to be returned by the state, be careful to designate the closest activity (to the command that the member is attached) that has special court-martial jurisdiction.

The DON considers this agreement complied with when ( 1 ) the member is furnished transportation (under escort in case of delivery under JAGMAN, section 0613) to a Navy or Marine Corps activity as stated in the agreement; (2) the member is provided cash to cover incidental expenses en route; and (3) the DON is so informed. Any departure from the agreement must have prior approval from JAG. As soon as possible, send a copy of the delivery agreement to JAG.

When personnel are delivered under the Interstate Agreement on Detainers Act, special forms that are not contained in the JAGMAN are used. The Detainers Act is infrequently used and most requests for delivery are pursuant to Article 14, UCMJ. See the JAGMAN for a detailed discussion of the Interstate Agreement on Detainers Act and Title 18, U.S. Code, for the special forms required.

DELIVERY OF PERSONNEL TO FEDERAL AUTHORITIES

When federal law enforcement authorities display proper credentials and federal warrants for the arrest of service members, civilian employees, civilian contractors and their employees, or dependents residing at or located on a DON installation, CO's are authorized to and should allow the arrest of the individual sought. The exceptions in the JAGMAN may be applied to service members. You should consult with a judge advocate of the Navy or Marine Corps before the delivery is carried out.

The agreement shown in figure 10-2 is not a condition precedent to the delivery of service members to federal law enforcement authorities. Regardless of whether the member is convicted or acquitted, the member will be returned to the naval service (provided naval authorities desire his or her return) and the necessary expenses will be paid from an appropriation under the control of the Department of Justice.

DELIVERY OF PERSONNEL TO FOREIGN AUTHORITIES

Except when delivery is provided for by agreement between the United States and the foreign government concerned, COs are not authorized to deliver service members or civilian employees of the DON, or their dependents residing at or located on a Navy or Marine Corps installation, to foreign authorities. When a request for delivery of these persons is received in a country that the United States has no agreement with or when the CO is in doubt, advice should be sought from JAG. Detailed information on the delivery of service members, civilian employees, and dependents to foreign authorities when a status of forces agreement is in effect is contained in SEC-NAVINST 5820.9. In addition, units that are deployed overseas should check their Deployment Manual for specific guidance on delivery of personnel in the areas that the deployed unit will be visiting.

CIRCUMSTANCES IN WHICH DELIVERY IS REFUSED

There are situations in which delivery of personnel may be refused or that require specific approval by higher authorities before delivery may be done. Some

Figure 10-2.-Delivery agreement.

of these situations and the procedures to follow when delivery is refused are discussed as follows.

Disciplinary Proceedings Pending

When disciplinary proceedings involving military offenses are pending, obtain legal guidance from a judge advocate of the Navy or Marine Corps before delivery of personnel to federal, state, territory, commonwealth, or local authorities if reasonably practical.

When Delivery May Be Refused

Delivery may be refused only in the following limited circumstances: . Where the accused has been retained for prosecution for serious military offenses as defined in the JAGMAN l When the CO considers that extraordinary circumstances exist that indicate delivery should be refused

REPORT REQUIRED WHEN DELIVERY IS REFUSED

In any case where it is intended that delivery will be refused, you must report the circumstances to JAG by telephone, or by message if telephone is impractical. The initial report is confirmed by letter setting forth a full statement of the facts. The letter should be as shown in figure 10-3. You also must send a copy of the report to the area coordinator.

MEMBERS RELEASED ON BAIL OR ON THEIR OWN RECOGNIZANCE

A member of the Navy or Marine Corps arrested by federal, state, or territory authorities and released on bail or on his or her own recognizance has a duty to return to his or her parent command. Accordingly, where a member of the Navy or Marine Corps is arrested by federal, state, or territory authorities and returns to his or her ship or station on bail or on his or _{her own recognizance,} the CO after checking the facts, date of trial, and approximate length of time needed should grant liberty or leave to permit appearance for trial, unless this would have a serious negative impact on the command. If liberty or leave is not granted, a judge advocate of the Navy or Marine Corps should immediately be requested to act as liaison with the court.

Nothing in this chapter is to be construed as permitting the member arrested and released to avoid the obligations of bond or of his or her recognizance by reason of his or her being in the military service.

REQUESTS TO INTERVIEW SERVICE MEMBERS OR CIVILIAN EMPLOYEES BY FEDERAL CIVILIAN INVESTIGATIVE AGENCIES

Requests by the Federal Bureau of Investigations, Naval Criminal Investigative Service, or other federal civilian investigative agencies to interview service members or civilian employees of the DON suspected or accused of crimes should be promptly honored. If there is any refusal of such a request, you must immediately report it to JAG, or the Office of General Counsel, as appropriate, by telephone, or by message if telephone is impractical.

REQUEST FOR DELIVERY OF A SERVICE MEMBER SERVING SENTENCE OF A COURT-MARTIAL

Authority to honor the requests for delivery of military personnel serving a sentence of court-martial is provided by Article 14, UCMJ (10 U.S.C. $ 814).

Although seldom used, additional authority and mandatory obligation to deliver such personnel are provided by the Interstate Agreement on Detainers Act (18 U.S.C. Appendix, Section 9) which applies to the federal agency holding the prisoner. The DON, as an agency of the federal government, must comply with the Detainers Act.

The Detainers Act is designed to avoid speedy trial issues and to aid in rehabilitation efforts by securing a greater degree of certainty about a prisoner's future. The act provides a way for the prisoner to be tried on charges pending before state courts, either at the prisoner's request or at the request of the state where the charges are pending. A report is required when delivery is refused.

Upon request under the Interstate Agreement on Detainers Act by either the prisoner or state authorities, the responsible Navy or Marine Corps SJA will communicate with the appropriate state officials and make sure the cognizant commanders act on all such requests.

Figure 10-3.-Letter required when delivery is refused.

STATE REQUESTS

State officials may request delivery of prisoners in military custody under Section 2, Article IV, of the Interstate Agreement on Detainers Act. Where a detainer has been lodged against the prisoner and the prisoner is serving a sentence (regardless of whether an appeal is in process), delivery is mandatory unless the request is disapproved by the Director of the Bureau of Prisons, Washington DC 20537, as the designee of the Attorney General for this purpose. There is no further delegation to military authority.

The prisoner should be informed that he or she may request the Director of the Bureau of Prisons within 30 days after such request is received to deny the request. Upon the expiration of such 30-day period or upon the Director of the Bureau of Prisons' denial of the prisoner's request, whichever occurs first, the prisoner is then delivered to the requesting authority.

PRISONER REQUESTS

The obligation to grant temporary custody under the Interstate Agreement on Detainers Act also applies to prisoners' requests to be delivered to state authority, Section 2, Article III(c), of the Detainers Act requires the custodial official to inform the prisoner of the existence of any detainer and of the prisoner's right to request disposition. The prisoner's request is directed to the custodial official who must send it to the appropriate prosecuting official and court, with a certificate of prisoner status.