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

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

In consideration of the delivery of (Grade and name)

(Service number) United States Army, to the civil authorities of the: (United States) at

(Place

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

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

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

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

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

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

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

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

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

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

(1) Financial institution. Any office of a

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

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

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

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

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

(4) Customer. Any person or authorized representative of that person(i) Who used or is using any service of a financial institution.

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

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

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

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

(i) Arise after adjudicative action, and

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

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

fully delay a legitimate law enforcement inquiry. If the person declines to consent to disclosure, the alternative means of obtaining the records authorized by this regulation will be used. (See § 504.2 (c) through (g).)

(2) Access requests. Except as provided in paragraph (d)(3) of this section and §§ 504.1(f)(1), 504.2(g) and 504.2(j), Army investigative elements may not have access to or obtain copies of the information in the financial records of any customer from a financial institution unless the financial records are reasonably described and the

(i) Customer has authorized such disclosure (§ 504.2(b));

(ii) Financial records are disclosed in response to a search warrant which meets the requirements of § 504.2(d);

(iii) Financial records are disclosed in response to a judicial subpoena which meets the requirements of § 504.2(e); or

(iv) Financial records are disclosed in response to a formal written request which meets the requirements of § 504.2(f).

(3) Voluntary information. Nothing in this regulation will preclude any financial institution, or any officer, employee, or agent of a financial institution, from notifying an Army investigative element that such institution, or officer, employee or agent has information which may be relevant to a possible violation of any statute or regulation.

(e) Authority. (1) Law enforcement offices are authorized to obtain records of financial institutions per this regulation, except as provided in § 504.2(e).

(2) The head of a law enforcement office, of field grade rank or higher (or an equivalent grade civilian official), is authorized to initiate requests for such records.

(f) Exceptions and waivers. (1) A law enforcement office may issue a formal written request for basic identifying account information to a financial institution as part of a legitimate law enforcement inquiry. The request may be issued for any or all of the following identifying data:

(i) Name.

(ii) Address.

(iii) Account number.

(iv) Type of account of any customer or ascertainable group of customers associated with a financial transaction or class of financial transactions.

(2) A request for disclosure of the above specified basic identifying data on a customer's account may be issued without complying with the customer notice, challenge, or transfer procedures described in § 504.2. However, if access to the financial records themselves is required, the procedures in § 504.2 must be followed. (A sample format for requesting basic identifying account data is in App. A.)

(3) No exceptions or waivers will be granted for those portions of this regulation required by law. Submit requests for exceptions or waivers of other aspects of this regulation to HQDA(DAPE-HRE), WASH, DC

(a) General. A law enforcement official seeking access to a person's financial records will, when feasible, obtain the customer's consent. This chapter also sets forth other authorized procedures for obtaining financial records if it is not feasible to obtain the customer's consent. Authorized procedures for obtaining financial records follow. All communications with a US Attorney or a US District Court, as required by this regulation, will be coordinated with the supporting staff judge advocate before dispatch.

(b) Customer consent. (1) A law enforcement office or personnel security element may gain access to or a copy of a customer's financial records by obtaining the customer's consent and authorization in writing. (See App. B for a sample format.) Any consent obtained under the provisions of this paragraph must

(i) Be in writing, signed, and dated. (ii) Identify the particular financial records being disclosed.

(iii) State that the customer may revoke the consent at any time before disclosure.

(iv) Specify the purpose of disclosure and to which agency the records may be disclosed.

(v) Authorize the disclosure for a period not over 3 months.

(vi) Contain a "Statement of Customer Rights Under the Right to Financial Privacy Act of 1978" (App. B). (2) Any customer's consent not containing all of the elements listed in paragraph a of this section will not be valid.

(3) A copy of the customer's consent will be made a part of the law enforcement inquiry file.

(4) A certification of compliance with 12 U.S.C. 3401 et seq. (App. C), along with the customer's consent, will be provided to the financial institution as a prerequisite to obtaining access to the financial records.

(5) The annual reporting requirements of § 504.2(m) apply to requests made to a financial institution even with the customer's consent.

(c) Administrative summons or subpoena. The Army has no authority to issue an administrative summons or subpoena for access to financial records.

(d) Search warrant. (1) A law enforcement office may obtain financial records by using a search warrant obtained under Rule 41 of the Federal Rules of Criminal Procedure in appropriate cases.

(2) No later than 90 days after the search warrant is served, unless a delay of notice is obtained under § 504.2(i), a copy of the search warrant and the following notice must be mailed to the customer's last known address:

Records or information concerning your transactions held by the financial institution named in the attached search warrant were obtained by this (office/agency/unit) on (date) for the following purpose: (state purpose). You may have rights under the Right to Financial Privacy Act of 1978.

(3) Search authorization signed by installation commanders or military judges will not be used to gain access to financial records from financial institutions in any State or territory of the United States.

(4) Access to financial records maintained by military banking contractors in oversea areas or by other financial institutions located on DOD installations outside the United States, Puerto Rico, the District of Columbia,

Guam, American Samoa, or the Virgin Islands is preferably obtained by customer consent.

(i) In cases where it would not be appropriate to obtain this consent or such consent is refused and the financial institution is not otherwise willing to provide access to its records, the law enforcement activity may seek access by use of a search authorization. This authorization must be prepared and issued per AR 27-10, Legal Services.

(ii) Information obtained under this paragraph should be properly identified as financial information. It should be transferred only where an official need-to-know exists. Failure to do so, however, does not render the information inadmissable in courts-martial or other proceedings.

(iii) Law enforcement activities seeking access to financial records maintained by all other financial institutions overseas will comply with local foreign statutes or procedures governing such access.

(e) Judicial subpoena. Judicial subpoenas

(1) Are those subpoenas issued in connection with a pending judicial proceeding.

(2) Include subpoenas issued under paragraph 115 of the Manual for Courts-Martial and Article 46 of the Uniform Code of Military Justice. The servicing staff judge advocate will be consulted on the availability and use of judicial subpoenas. The notice and challenge provisions of 12 U.S.C. 3407 and 3410 will be followed.

(f) Formal written request. (1) A law enforcement office may formally request financial records when the records are relevant to a legitimate law enforcement inquiry. This request may be issued only if—

(i) The customer has declined to consent to the disclosure of his or her records, or

(ii) Seeking consent from the customer would compromise or harmfully delay a legitimate law enforcement inquiry.

(2) A formal written request will be in a format set forth in Appendix D and will

(i) State that the request is issued under the Right to Financial Privacy Act of 1978 and this regulation.

(ii) Described the specific records to be examined.

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

(iv) Describe the nature of the inquiry.

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

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

(i) In a format similar to Appendix E.

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

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

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

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

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

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

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

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

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

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

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

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

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

for

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

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

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

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

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

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