§ 21.262 Orders of superior officers.

Officers are required to observe and promptly to obey the lawful orders of the Surgeon General and all other official superiors. Such orders may be written or oral, but all countermanding orders shall be in writing unless the original order was oral and is countermanded by the officer who issued it.

§ 21.263 Officer in charge; designation.

The officer in charge of a station shall have authority over all officers serving with him and shall enforce Service regulations and issue and enforce such lawful orders as he may deem necessary for proper administration of the station. As used in this subpart, "officer in charge" means the officer so assigned by the Surgeon General.

§ 21.264 Officer in temporary charge; designation.

An officer in charge shall designate an officer assigned to his station to act as the officer in temporary charge in the event of his absence, disability, or death. Such designation may be made without regard to rank or professional category.

§ 21.265 Officer in temporary charge; authority.

An officer in temporary charge shall make no substantial changes in the regular routine of the station unless such changes are found to be necessary from conditions of emergency or changed circumstances. Any order making such change together with the reasons therefor shall be entered in the files of the station over the signature of the officer in temporary charge.

§ 21.266 Official correspondence.

All official communications written by officers relative to matters of official business shall be forwarded through the officer in charge.

§ 21.267 Furnishing information.

No officer shall publish or furnish for publication any official reports of current statistics of the operations of the Service or any information con

cerning the Service without authority from the Surgeon General; nor shall an officer publish or offer for publication any article dealing with professional subjects or the policy of the Service unless the article shall have been submitted to and approved by the Surgeon General or his designated representative. No reports or information concerning the Service shall be volunteered to the press without the consent of the officer in charge, to whom representatives of the press shall be referred when requesting information.

§ 21.268 Letters of recommendation.

No officer shall give any letter of recommendation with respect to any article of manufacture or on behalf of any firm or corporation.

§ 21.269 Misconduct.

The following actions or conduct shall consitiute grounds for disciplinary action pursuant to this subpart: (a) Willful disobedience of the lawful orders of a superior officer. (b) Negligence or carelessness in obeying orders.

(c) Excessive use of drugs or intoxicating liquors.

(d) Conduct tending to bring discredit upon the officer or upon the Service, or upon both.

(e) Financial irregularities.

(f) Use of language disrespectful of official superiors or other officers.

(g) Any publication or public statement impugning the professional competency or personal character of another officer.

(h) Waste of public property or knowingly permitting such waste.

(i) Conviction of a felony or an offense involving moral turpitude.

(j) Willful submission of false information in application for appointment or in any proceeding of the Service.

(k) Abusive treatment of subordinate officers or employees, of patients or beneficiaries of the Service, or of members of the public in their dealings with the Service.

(1) Absence without leave.

(m) Violation of any regulation prescribed for the government of the Service.

[21 FR 9806, Dec. 12, 1956. Redesignated at 23 FR 5670, July 26, 1958]

§ 21.270 Summary punishment.

(a) Officer in charge. The officer in charge may impose upon an officer subject to his authority the following punishment for misconduct during any period when the latter was so subject: (1) Private reprimand; and (2) suspension of privileges pending immediate report of such misconduct to and instructions from the Surgeon General.

(b) The Surgeon General. If an officer is absent without leave for 30 or more days during a calendar year, the Surgeon General may recommend to the Secretary that the commission of such officer be terminated and if the Secretary approves such recommendation, the coinmission of such officer shall be terminated. If the Surgeon General so determines, he may refer any case of absence without leave to a board of investigation for investigation and recommendations in accordance with the provisions of this subpart.

(c) Recording of action taken. Any action taken pursuant to this section shall be entered on the service record of the officer. Such entry shall include the date and nature of the offense and the action taken.

[21 FR 9806, Dec. 12, 1956. Redesignated at 23 FR 5670, July 26, 1958]

§ 21.271 Leave of absence during pendency of charges.

An officer authorized to grant leave of absence shall not grant leave to an officer against whom charges are pending, but requests for leave at that time shall be referred to the Surgeon General for action.

[21 FR 9806, Dec. 12, 1956. Redesignated at 23 FR 5670, July 26, 1958]

§ 21.272 Grievances.

If any officer shall consider himself aggrieved by another officer and shall fail to secure an adjustment of the matter to his satisfaction, he may report such fact in writing through the officer in charge to the Surgeon General.

[21 FR 9806, Dec. 12, 1956. Redesignated at 23 FR 5670, July 26, 1958]

BOARDS OF INVESTIGATION

§ 21.281 Order to appear before board; time limitations.

When an officer is charged by his superior officer, or by any responsible person or persons, with conduct constituting a ground for disciplinary action under this subpart, he may be ordered to appear before a board of investigation, but no officer shall be so ordered to appear or punished for any offense connected with the Service committed more than one year before the issuance of such order. Any period during which an officer is outside the continental United States or in Alaska or any period during which discovery of the offense was prevented by the giving of false information by or in behalf of an officer shall not be counted as part of such one-year limitation. § 21.282 Convocation.

A board of investigation may be convoked by order of the Secretary or the Surgeon General. Such order shall indicate the time and place of assembly.

§ 21.283 Composition.

The board of investigation shall consist wholly of commissioned officers of the Service and of not less than three members, who shall be appointed by the Secretary upon recommendation of the Surgeon General. The members of the board shall, if practicable, be equal or senior in rank to the accused officer and shall, if practicable, include at least one officer of the same profession as the accused officer.

§ 21.284 Punishment.

The board shall hear the case and make a report of its findings. If the accused officer is found guilty, the board shall make recommendations as to punishment which shall be limited to the following:

(a) Dismissal from the Service.

(b) Reduction of grade, with a specific recommendation with regard to promotion credit and seniority in the grade to which reduced.

(c) Loss of seniority with a specific recommendation with regard to promotion credit.

(d) Official reprimand by circular letter.

(e) Official reprimand by the Surgeon General.

(f) Any combination of the punishments prescribed in paragraphs (b), (c), (d) and (e) of this section.

§ 21.285 Service representative.

In connection with any proceeding before a board of investigation, the Surgeon General shall detail an officer of the Service, not liable to be summoned as a witness, to prepare a statement of the charges and specifications against the accused officer and to act in the interest of the Government as Service representative before the board. The Service representative shall not be a member, and shall be independent of the control, of the board. The Service representative shall investigate all the circumstances of the case. All persons connected with the Service shall furnish the Service representative with such information within their knowledge as he may request. He shall have the right to be furnished with such instructions and papers or copies thereof as may be necessary for his guidance.

§ 21.286 Notice of charges; right to counsel.

When charges are preferred against an officer for the investigation of which a board of investigation is ordered, the officer shall be furnished a copy of such charges and the specifications thereof and shall be notified that he may, if desired, have counsel to aid in his defense.

§ 21.287 Presiding officer.

The senior officer of the board shall be the presiding officer. He shall (a) preserve order, (b) decide upon matters relating to the routine of business, (c) request the presence of witnesses, (d) administer oaths as required, and (e) adjourn the board from day to day. He shall be authorized at any time to order the exclusion from the room of any person other than the members of the board, the recorder, the stenographer, the accused and his counsel, and the Service representative, and to order a closed session limited to members of the board for the purpose of deliberation upon objections to questions and evidence and upon the valid

ity of challenges and pleas, and of formulating its findings and recommendations. Should any member of the board object to a decision of the presiding officer, the question shall be submitted to and decided by a majority vote of the board.

§ 21.288 Recorder.

The junior officer of the board shall be recorder. Under the direction and control of the board it shall be his duty (a) to record the proceedings, (b) to append original documents (or authenticated copies thereof) to the record, (c) to have custody of the record and all documents submitted to the board, (d) to assist the board in systematizing the information it may receive, (e) to render the board such assistance as will enable it to present the facts to the convoking authority, (f) to read the charges and specifications when the accused is arraigned, (g) if practicable, to read the record of the proceedings of the preceding session at the opening of each session, (h) as may be directed by the presiding officer, to prepare and send out requests to witnesses to appear and testify, and (i) in conjunction with the presiding officer, to authenticate the proceedings by his signature.

§ 21.289 Stenographer.

Stenographic assistants shall be employed to record the testimony. § 21.290 The record.

Except as otherwise provided, the entire proceedings of the board shall be fully set forth in the record, which shall be signed by the presiding officer and the recorder. Such record shall be confidential and shall not be disclosed except for the purposes of the proceedings, but the accused and his counsel shall be permitted access to the record for the purpose of preparing the defense of the accused in such proceedings.

§ 21.291 Oath of board members.

When the board assembles, the recorder shall read the order convoking it. Such order shall be read in the presence of the Service representative, the stenographer, the accused officer, and his counsel. The recorder shall

then administer the following oath to each member of the board: "I do solemnly swear (or affirm) that I will carefully and impartially investigate and try the case now about to be opened; that in announcing my conclusions and recommendations to be embodied in the report of this board to be submitted to the convoking authority, I will be governed wholly by the evidence adduced, and I will not be influenced for or against the accused by anything not clearly shown in the recorded evidence; so help me God." The presiding officer shall then administer the same oath to the recorder of the board.

§ 21.292 Oath of recorder and stenographer.

The recorder and the stenographic assistants shall be sworn by the presiding officer to keep a true record of proceedings, as follows: “I do solemnly swear (or affirm) that I will faithfully perform the duties of recorder (or stenographer) to this board, and that I will not divulge any of the proceedings of the investigation; so help me God."

§ 21.293 Affirmations.

The closing phrase invoking the Diety in the oaths prescribed in this subpart shall be omitted in cases of affirmation.

§ 21.294 Sessions.

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.

§ 21.296 List of witnesses.

The Service representative and the accused shall each furnish the presiding officer a list of his witnesses. Other witnesses may be introduced at a later stage of the investigation upon giving reasonable notice. The notice to testify shall be prepared by the recorder and signed by the presiding officer.

§ 21.297 Reading of charges and specifications.

The recorder shall read in the presence of the accused the charges and specification of charges preferred against him, and the accused shall be called upon to plead or each specification and charge seriatim as follows: The recorder shall read the specification of the first charge, and the presiding officer shall then address 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.

§ 21.299 Plea in bar.

A plea in bar of investigation shall be in writing, signed by the accused, and appended to the record. Witnesses may be called and arguments submitted by both parties upon such plea. The board shall deliberate upon the matter in closed session, and, upon reopening, the board's decision shall be announced by the presiding officer. If the plea is sustained, a report shall be forwarded to the convoking authority and the board shall adjourn to await further orders.

§ 21.300 Preliminary instructions to wit

nesses.

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.

§ 21.305 Depositions.

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 crossexamine 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 member of the board generally shall not be asked until the Service repre