The board shall sit daily, except Sundays and holidays, until a decision is reached unless temporarily adjourned or dismissed by the authority which convoked it: Provided, That the presiding officer may, for good cause, grant a continuance to either party for such time and as often as may appear to be just. When the proceedings of the board have commenced, they shall not be suspended or delayed on account of the absence of any of the members if a majority but not less than three members is present, and in the absence of the accused officer without good cause the board may proceed as if he were present.

§ 21.295 Challenges.

The presiding officer shall ask the accused whether he objects to being tried by any member of the board, and, in case of objection, he shall state his reasons therefor. The recorder shall enter a minute of the inquiry and of the answer upon the records. A challenged member shall have the right to reply to the accused. All parties except the unchallenged members shall be excluded until a decision has been reached upon the validity of the challenge by the remaining members of the board. Should the challenge be sustained, the facts shall be reported by the presiding officer to the Surgeon General, and if the number of members is reduced below three, the board shall adjourn until instructions are received. Each challenge, whenever the accused wishes to challenge more than one member, shall be received and considered separately.

dress the accused by name and designation and ask whether he is guilty or not guilty of the specification just read. Each specification shall be read and the accused asked to plead in each instance until all of the specifications of the first charge have been covered. Then the charge shall be read and the accused be required to plead to that. The specifications and charges shall be pleaded to in this manner until all have been covered. § 21.298 Plea to charges.

If the accused officer is present and refuses to plead, the presiding officer shall direct a plea of "not guilty" to be entered.

Witnesses other than the accused shall be present only when testifying, and they shall be warned that they are not to converse on any matter pertaining to the pending investigation.

§ 21.301 Calling of witnesses; oath.

The witnesses shall be called before the board separately. The presiding officer shall administer to each the following oath: "I do solemnly swear (or affirm) that I will make true answers to such questions as may be propounded to me; so help me God." Witnesses shall be cautioned before giving their testimony to testify only to facts which are within their own knowledge.

§ 21.302 Verification of testimony.

After the testimony of the witness is closed the whole of his testimony as recorded may be read over to him and, when corrected in such parts as are in error, he shall sign it. The signatures of the witnesses shall be authenticated by the presiding officer of the board. § 21.303 Witness fees.

Upon the application of the presiding officer payment of the usual witness fees

to witnesses unconnected with the Government service may be authorized. § 21.304 Evidence; admissibility.

Evidence may be received by the board even though inadmissible under rules of evidence applicable to court procedure. The Service representative or the counsel for the accused may, however, object to the admission of evidence or testimony on the ground that it is irrelevant, immaterial, incompetent, or otherwise improper, and if such objection is overruled by the board he shall be allowed to enter his objection upon the record. Notwithstanding the provisions of § 21.281, whenever it shall appear to the board to be material to the charges to prove or disprove a particular habit of the accused, evidence as to his record in that regard for a period of 3 years prior to the order convoking the board shall be admissible.

Depositions of individuals who are unable to appear in person before the board and whose testimony is material to a complete investigation of the case may be received, provided that the accused shall be given an opportunity to have present when the deposition is taken a representative who may cross-examine the witnesses.

§ 21.306 Order of examination.

The evidence on the part of the Service shall be first taken. The evidence for the defense shall be taken when the Service rests. Either side may rest at pleasure. The examination of witnesses shall close by taking such testimony as may be offered in rebuttal, surrebuttal, impeachment, or to sustain the credibility of those witnesses whose testimony an effort has been made to impeach. The board may recall a witness at any stage of the proceedings, provided that the right of cross-examination by the accused and the Service representative shall not be denied. Each witness shall first be examined in chief by the party who summons him, and then cross-examined by the opposite party. In case of new matter being introduced on cross-examination, the party calling the witness may examine him with respect to such matter, and, under like circumstances, a recross-examination shall be permitted. The board may put such questions to the witness as may be deemed necessary; a question by a mem

ber of the board generally shall not be asked until the Service representative and the accused have finished their examinations.

§ 21.307 Testimony of accused.

The accused may in any case, testify in his own behalf, but his failure to do so shall create no presumption against him. If the accused does testify in his own behalf, he shall be subject to cross-examination concerning any facts to which he has testified.

§ 21.308 Defense rebuttal.

When the examination of witnesses is closed the accused may present arguments in his defense, in writing or orally, in person or by counsel. This statement, if written, may be read before the board. The whole shall become a part of the record.

§ 21.309 Reply of Service representative.

The Service representative shall have the right to reply to the defense in writing or orally, and this reply shall become a part of the record.

§ 21.310 Close of hearing.

When the Service representative and the defense have completed their arguments, the hearing shall be closed. The board may, however, before its finding, authorize reopening for the introduction of new evidence, provided it be shown that the evidence is material and its omission would leave the case incomplete. The board shall then retire to consider the record.

§ 21.311 Consideration by board.

(a) When the board has sufficiently examined the evidence, the presiding officer shall put the question upon each specification of each charge, beginning with the first, whether the specification is "proved", "not proved", or "proved in part". No written minute of the votes shall be preserved unless so ordered by the unanimous vote of the board. In any oral vote the member of the board who is junior in rank shall vote first. When a majority of the board agrees upon a finding it shall be so recorded.

(b) When the members have voted upon all the specifications of any charge, the question shall be put upon the charge to each member: "Is the accused guilty of the charge, or not guilty?". When a majority decision is arrived at, the result shall be recorded. The board shall then proceed to the next charge and

specifications until votes have been taken and decisions recorded upon all the charges and specifications.

(c) When the members of the board have voted upon all the charges, if the accused has been found guilty upon any of them, the members shall proceed to vote upon the punishment to be recommended. Each member shall write down the punishment which he believes should be recommended and shall hand his vote to the presiding officer, who shall announce the result. If a majority shall not have agreed upon the nature and degree of the punishment to be recommended, the presiding officer shall proceed, beginning with the mildest punishment that has been proposed and continuing, if necessary, to the next more severe punishment, and so on, successively, until a punishment to be recommended has been decided upon by a majority of the members of the board.

(d) A finding of guilty shall not be entered on a charge other than a charge specified. In case evidence develops which in the opinion of the Service representative warrants additional charges and specifications, appropriate recommendation shall be made with respect thereto by the Service representative to the Surgeon General. The Service representative shall give due notice to the presiding officer, whereupon the board shall await further instructions from the Surgeon General.

§ 21.312 Findings and recommendations of board.

After all charges and specifications have been voted upon, the recorder, under the direction of the board, shall draw up the findings, specifying as to each charge whether the accused has been found guilty or not guilty, and, on approval by the board, shall enter such findings upon the record, together with the recommendations of the board as to punishment and clemency if the accused has been found guilty of any charge. § 21.313 Recommendations of board.

In arriving at its recommendations as to the nature and degree of the punishment, if any, to be imposed, the board shall take into consideration all previous convictions and the official record of the accused. If mitigating circumstances have appeared during the proceedings which could not be taken into consideration in determining the degree of guilt found by the verdict, the board may avail itself of such circumstances as

grounds for recommending clemency. Any recommendation for clemency shall be inserted immediately after the recommendation as to punishment.

§ 21.314 Report to accompany record.

The board shall prepare a report to accompany the record and in such report shall review the evidence as a whole. with specific reference to all evidence and to any conclusions of law on controverted questions upon which the findings are based. The report of the board shall be signed by the members concurring; any member or members not concurring, in whole or in part, may submit and sign a minority report.

§ 21.315 Transmittal of record and report.

After the record (including the transcript of the testimony) and other documents have been signed, they shall be forwarded by the presiding officer to the Surgeon General. The board shall then adjourn pending further orders. ACTION UPON FINDINGS AND RECOMMENDATIONS OF BOARD

§ 21.321

Action by Surgeon General.

The Surgeon General shall review the record, report, and recommendations of the board, and may either order further investigation by the board or transmit the papers in the case to the Secretary with his recommendations. § 21.322

Action by the Secretary.

No recommendation for punishment shall be effective until approved by the Secretary. The Secretary shall review the record, report, and recommendations of the board and the recommendations of the Surgeon General, and may either order a further investigation by the board or approve the findings and recommendations in whole or in part; or, upon the basis of the approved findings, he may order punishment or a grant of clemency or other disposition not inconsistent with these regulations. The disposition of a case by the Secretary shall be final.

Subpart O-Burial Payments AUTHORITY: §§ 21.331 to 21.333 issued under 70A Stat. 113, 114, 70A Stat. 619; 10 U.S.C. 1482, 1485, 42 U.S.C. 213.

§ 21.331 Commissioned officers.

Upon the death of a commissioned officer, the Surgeon General or his designee may pay the necessary expenses for those items enumerated in 70A Stat.

113; 10 U.S.C. 1482 in accordance with and subject to those limitations prescribed in said act. Not more than an aggregate of $600.00 shall be paid for the following:

(a) Preparation of remains for burial (including cremation of remains upon request of the person recognized as the one to direct the disposition of the remains);

(b) Casket or urn, with outside box; (c) Hearse service; and

(d) Funeral director's services. In addition, an amount not to exceed $50.00 shall be paid for the interment of the remains when the interment is in a cemetery other than a national cemetery.

(21 F.R. 9806, Dec. 12, 1956, as amended at 25 F.R. 43, Jan. 5, 1960]

§ 21.332 Reimbursement.

(a) In any case where expenses, which are authorized to be paid under § 21.331 or § 21.333, are borne by a relative or other representative of the decedent, reimbursement of such expenses may be authorized by the Surgeon General or his designee.

(b) Reimbursement shall not exceed the amounts specified in § 21.331 and, for transportation of remains, the cost which would have been incurred by the Service by common carrier.

[31 F.R. 11454, Aug. 31, 1966]

§ 21.333 Dependents of Commissioned Officers.

The Surgeon General or his designee may authorize the transportation of the remains of a dependent (as defined in 37 U.S.C. 401) of a commissioned officer who is on active duty, except active duty for training. Transportation is authorized to the home of the decedent, or to any other place determined to be an appropriate place of interment.

[31 F.R. 11454, Aug. 31, 1966]

Subpart P-Quarters [Reserved] Subpart Q-Travel and Transportation Allowances

AUTHORITY: §§ 21.351 and 21.352 issued under 37 U.S.C. 404-407, 409, 410, 411. § 21.351 Controlling regulations.

Regulations governing the allowances for travel and transportation and the conditions under which such travel and transportation may be performed by .commissioned officers of the Public

Health Service shall consist of those portions of the document entitled "Joint Travel Regulations", approved by the Federal Security Administrator on January 31, 1951, and approved by the Secretaries having jurisdiction over the other uniformed services, as are applicable to such officers of the Service, together with any revisions or additions to such document, so applicable, as have been approved since January 1, 1951, by said Administrator or the Secretary, as the case may be, or as may hereafter be approved by the Secretary.

Instructions by the Surgeon

§ 21.352 General.

For purposes of this subpart the term "parent" shall include a natural father or mother, a father or mother by adoption, a stepfather or stepmother, and any person, including a former stepfather or stepmother, who has stood "in loco parentis" to an officer at any time for a continuous period of not less than five years during the minority of such officer. A stepparent-stepchild relationship shall be deemed to be terminated by the stepparent's divorce from the blood parent, but shall not be deemed to be terminated by the death of the blood parent. § 21.382

Entitlement.

PHS 1637-2 (BF). In addition, the parent concerned shall submit an affidavit on form PHS 1637-3 (BF). The parent's affidavit shall be filed to cover the period from the date basic allowance for quarters is claimed to the date of execution of the affidavit, such period to be not less than one month.

§ 21.384 Adopted parent.

If the parent claimed as a dependent is a parent by adoption, there shall be submitted, in addition to the evidence required by § 21.383, certified court orders of adoption or such other evidence as is acceptable to establish legally the fact of adoption.

§ 21.385 Stepparent.

If the parent claimed as a dependent is a stepparent, the stepparent must submit, in addition to the affidavit required by § 21.383, a sworn statement to the effect that he or she married the blood parent of the officer and that he or she has not been divorced from such blood parent.

Determinations of dependency and parental status, as required by this subpart, may be made by such officers and employees of the Public Health Service as may be designated by the Chief, Division of Finance, Public Health Service. Subpart S-Claims for Compensation Availability of Clinical Information § 21.401

Claims for compensation; disclosure of relevant clinical information.

Relevant clinical information in the records or in the possession of the Service concerning a commissioned officer or former officer of the Service may upon request therefor be furnished to a Federal department or agency with which a claim for compensation or other benefit has been filed based on the death of, or an injury or disease incurred by, such officer or former officer.

(Sec. 215, 58 Stat. 690 as amended; 42 U.S.C. 216)

Subpart T-Inactive Duty Training AUTHORITY: §§ 21.451 and 21.452 issued under 37 U.S.C. 206, 402(b), 1002.

SOURCE: §§ 21.451 and 21.452 appear at 24 F.R. 11096, Dec. 31, 1959.

§ 21.451 Inactive duty training with pay.

Commissioned officers of the Reserve Corps not on active duty may, when authorized by the Surgeon General, perform such periods of training, instruction, or duty as the Surgeon General may prescribe. For each period of service performed pursuant to this section of which the duration is not less than two hours nor more than one calendar day, the officer shall be entitled to compensation at the rate of 1/30th of his basic pay. The number of such periods for which compensation shall be paid shall be limited to 48 periods during a calendar year and to 12 periods during a calendar quarter. The Surgeon General shall prescribe for each officer so authorized the minimum number of such periods of service to be performed during a calendar quarter, the performance of which will be required to entitle the officer to compensation for any period of service performed during that quarter. The Surgeon General may require each officer performing such periods of service to file reports relative to each period. If a report is required for a period of service the receipt of the report by the Service shall be a condition precedent to the payment of compensation for such period.