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UNWRAPPING THE GIFTS PROCESS

UNWRAPPING THE GIFTS PROCESS. MAJ LORRAINE ROWBO Center Judge Advocate Great Plains Regional Medical Command and Brooke Army Medical Center. OVERVIEW. Identify the Recipient Gifts to individual Soldiers Gifts for redistribution to individual Soldiers Gifts to hospitals

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UNWRAPPING THE GIFTS PROCESS

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  1. UNWRAPPING THE GIFTS PROCESS MAJ LORRAINE ROWBO Center Judge Advocate Great Plains Regional Medical Command and Brooke Army Medical Center

  2. OVERVIEW • Identify the Recipient • Gifts to individual Soldiers • Gifts for redistribution to individual Soldiers • Gifts to hospitals • The “none of the above” category of gifts • Pick the Correct Gift Acceptance Process • Notes from the Head Shed • Changes Afoot • Summary

  3. IDENTIFY THE RECIPIENT • Who or What is the Gift for? • Identified Soldiers or their families • Unspecified Soldiers • Organizations • Who is the Gift from? • Prohibited source • Multiple sources • What are the Specifics of the Offered Gift? • What is included and what is the value?

  4. PICK THE CORRECT GIFT PROCESS • Gifts to Individual Soldiers • Gifts for Redistribution to Individual Soldiers • Gifts to a Hospital • None of the Above

  5. GIFT TO INDIVIDUAL SOLDIERS

  6. GIFTS TO INDIVIDUAL SOLDIERS • References • 5 C.F.R. § 2635.202 et seq • DoD Joint Ethics Reg, para 2-202 • FY 06 National Defense Appropriations Act, P.L. 109-148, § 8127 • Gift Information Paper – MEDCOM OSJA dated 27 September 2006

  7. GIFT TO INDIVIDUAL SOLDIERS (Continued) • General Rule: No Gifts … • From prohibited sources • Given because of official position • JER applies OGE regulations to all Soldiers • Exceptions: • Non-gifts (e.g., modest refreshments) • De minimis gifts ($20/$50 rule) • Widely available discounts/benefits

  8. Gifts to “Warriors in Transition” • The “Problem” • Gifts often offered by prohibited sources • Offered because of official position • The gift analysis “Outcome” • Advice against acceptance • Unfair to combat-wounded Soldiers! • Tortured use of exceptions • Awards program • Discount/benefits • The Rationale • for legislating an exception to the general rule: • No evidence that gifts are offered with intent to influence • Recipients generally in no position to influence

  9. Gifts To “Warriors in Transition” • How the Exception Came to Be: • Media attention • Congressman’s wife writes President Bush • Public sentiment: “Wounded Soldiers have no power to influence government action.” • The Effort: • Nov 05 ADEO determination of “official position” • New legislation • Changes to JER • The Result: • National Defense Appropriations Act for Fiscal Year 2006, P.L. 109-148, §8127

  10. National Defense Appropriations Act for Fiscal Year 2006, P.L. 109-148, §8127 SECTION 4.  PERSONAL ACCEPTANCE OF GIFTS FROM NON-FEDERAL ENTITIES 3-400. Acceptance of Gifts by Injured or Ill Service Members and Their Family Members.  … Covered DoD employees, described at subsection 3-401, below,and the family members of such employees may accept unsolicited gifts from non-Federal entities subject to the following limitations: a. This authority does not apply to gifts from foreign governments and their agents. b. This authority does not apply to gifts that (1) are accepted in return for being influenced in the performance of an official act; (2) are solicited or coerced; or (3) are accepted in violation of any other statute, including 18 U.S.C. sections 201(b) and 209 (reference (i)). c. For gifts with an aggregate market value in excess of "minimal value," ($305) as adjusted by the General Services Administration …per source per occasion, or with an aggregate market value exceeding $1000 received from any one source under the authority of this subsection in a calendar year, an agency ethics official must make a written determination that: (1) The gift is not offered in a manner that specifically discriminates among covered DoD employees merely on the basis of type of official responsibility or of favoring those of higher rank or rate of pay; (2) The donor does not have interests that may be affected substantially by the performance or nonperformance of the covered DoD employee’s official duties; and (3) Acceptance would not cause a reasonable person with knowledge of the relevant facts to question the integrity of DoD's programs or operations. An agency ethics official may issue a blanket determination to cover all or any category of gifts or all or any group of DoD covered employees.  This authority is in addition to, and in no way limits, any other statutory or regulatory authority of covered employees and their family members to accept gifts from non-Federal entities. 3-401. Covered DoD Employees.  For purposes of this section, covered DoD employees are a. members of the Armed Forces on active duty, as described at paragraphs 1-211.b, 1-211.c, 1-211.d, and 1-211.e (except for duties and functions performed under the authority of title 32, United States Code), above, who b. while on active duty on or after September 11, 2001 incurred an illness or injury, as described below (1) as described in 10 U.S.C. 1413a(e)(2) (reference (f)), which is currently (a) as a direct result of armed conflict; (b) while engaged in hazardous service; (c) in the performance of duty under conditions simulating war; or (d) through an instrumentality of war; or (2) in an operation or area designated by the Secretary of Defense as a combat operation or a combat zone.  The Secretary designates the following as combat zones under this subparagraph. (a) any area designated by the President of the United States by Executive Order as an area in which U.S. Armed Forces are engaging or have engaged in combat (b) any area designated for treatment as a combat zone by Public Law, including P.L. 104-117 and (c) any area certified by the Secretary of Defense for combat zone tax benefits for directly supporting military operations in combat zones. 3-402. Definitions a.  Family Members.  Parents, siblings, spouse, children, and dependent relatives. b.  Gift.  Gift shall have the meaning set forth at 5 C.F.R. 2635.203(b), (reference (h)). c.  Market value.  Market value shall have the meaning set forth at 5 C.F.R. 2635.203(c), 3-403. Acceptance of Gifts by Certain Reserve and National Guard embers.  Notwithstanding paragraph 1-300.b., above, enlisted members of the Reserve on inactive duty for training and all members of the National Guard, defined at paragraph 1-211.e and subsection 1-233, above, who meet the criteria at subsection 3-401.b., above, and family members of such members, may accept unsolicited gifts from non-Federal entities in accordance with paragraph 3-400, above. 3-404. Retroactivity.  This section shall apply to acceptance of such gifts beginning on September 11, 2001. 3-405. Delegation.  To the extent not included in current delegations, DoD DAEOs and Deputy DAEOs may delegate authority to make the written determination required by paragraph 3-400.b., above, to any agency ethics official, including such officials outside the DoD Component, located at the duty station of covered DoD employees or having sufficient knowledge of the conditions and circumstances of the covered DoD employees and the offered gifts. 3-406. Relationship to illegal gratuities statute.  Unless accepted in violation of subparagraph 400.b.(1), above, a gift accepted under this section shall not constitute an illegal gratuity otherwise prohibited by 18 U.S.C. 201(c)(1)(B), reference (i)).

  11. “Give It to Me in a Nutshell” • The NDAA FY 2006 changes to Para 3-400, Personal Acceptance of Gifts from Non-Federal Sources: • WTs may accept gifts valued at $305 per gift or $1000 per source, per calendar year before they need a written ethics counselor’s review • Must be unsolicited; • Covered DoD employees – AD Soldiers with combat-related wounds or illnesses.

  12. GIFT FOR REDISTRIBUTION TO SOLDIERS

  13. GIFTS FOR REDISTRIBUTION TO SOLDIERS • Applies when Gift is given for Redistribution to unidentified Soldiers • References • AR 1-101, Gifts for Distribution to Individuals (1 May 81) • MEDCOM Commander Delegation Memo to RMC Commanders (17 Jun 04)

  14. GIFTS FOR REDISTRIBUTION TO SOLDIERS (Continued) • How it works for MTFs: • MACOM commanders may accept gifts for distribution to Soldiers within their commands • AR 1-101, para 6.b, authorizes delegation to subordinate commanders • TSG delegated acceptance authority to RMC Commanders in 17 Jun 04 memorandum • RMC Commander’s gift acceptance authority for redistribution to soldiers: $20K • Note: authority cannot be further delegated

  15. GIFTS FOR REDISTRIBUTION TO SOLDIERS (Continued) • Limitations • Only for gifts that promote health, comfort, convenience and morale • No alcohol! • Donor MUST pay for transportation • No concessions, privileges or publicity • Limits on advertising (cannot be discrediting to the Army) • Commanders decide who receives items • Must ensure equal distribution for similar items

  16. GIFTS FOR REDISTRIBUTION TO SOLDIERS (Continued) • Process Begins with Local Staffing • Is the gift needed/desired? • Does gift meet AR 1-101 requirements? • Conduct legal review • Local commander makes recommendation • Forward to RMC • Acceptance/Recommendation • Forward Gifts over $20K to MEDCOM JA • JA reviews and makes recommendation • Forwarded to MEDCOM Commander for approval

  17. GIFT TO HOSPITALS

  18. GIFTS TO HOSPITALS • Applies Where Gift is to the Hospital/MTF • References • 10 USC § 2601 • AR 1-100, Gifts and Donations • MEDCOM Supp 1 to AR 1-100 • SecArmy Delegation Memo • SecArmy authorized to accept conditional gifts for schools, hospitals, libraries, etc. • Secretary delegated authority for gifts to hospitals up to $20K to TSG

  19. GIFTS TO HOSPITALS (Continued) • Procedures for Acceptance • Legal and contracting officer review required • Reviews must ensure compliance with AR 1-100 and DoD Joint Ethics Regulation • Staffing process must answer seven questions • If gift determined appropriate for acceptance • Forward to MEDCOM JA for review • Gifts of $20K or less forwarded to TSG for acceptance • Gifts of more than $20K get TSG’s recommendation for forwarding to HQ DA

  20. GIFTS TO HOSPITALS (Continued) • Seven Questions (MEDCOM Supp 1, para 6.i) • 1. Is gift needed/wanted? • 2. Is gift appropriate for the activity? • 3. Are there professional, technological or economic advantages to accepting the gift? • 4. Will acceptance grant special privileges or concessions to donor? • 5. Can acceptance grant special privileges to donor? • 6. Can acceptance result in preferential treatment to donor in future acquisitions? • 7. Can acceptance adversely affect public’s confidence in integrity? • Bottom Line: Does Gift Benefit the Army?

  21. GIFTS TO HOSPITALS (Continued) • Things to remember: • Do not take physical possession of items until they have been accepted • No solicitations, but permissible to let organizations know your needs if they ask • Don’t forget to consider the upkeep on that widget! • Coordinate with appropriate outside agencies

  22. GIFT TO “NONE OF THE ABOVE”

  23. GIFTS WHICH ARE “NONE OF THE ABOVE” • Unconditional Gifts less than $1K (AR 1-100) • Treat as gifts to welfare funds, where appropriate • Gifts to NAFIs (AR 215-1) • E.g., Fisher Houses • Gifts for Clinical Investigations • AR 1-100 and MEDCOM Supp 1 • Processed thru Clinical Investigation Regulatory Office (CIRO)

  24. NOTES FROM THE HEAD SHED • Complete Gift Acceptance Requests are Crucial • They really do need well-reasoned answers to those seven questions and meaningful legal & contracts review • Quantitative Analysis – MEDCOM OSJA can’t assess the value of “new furniture and accessories for the second floor waiting room” • Send them an itemized list of proffered items and values • THE Hurry Up and Wait Factor • Gift processing is a time sponge • Don’t expect 24-hour service for TSG approval • Secretary of the Army gift processing time is normally weeks if not months. • My Two Cents: MEDCOM OSJA is very helpful when it comes to ‘gift acceptance emergencies”

  25. CHANGES AFOOT • Increased Delegation of Authorities • Requested Increase in TSG’s AR 1-100 authority • Additional delegation of authority to RMC commanders under AR 1-101 • Revitalized Guidance on Gifts Process • Policy letter/rewrite of MEDCOM Supp 1 • Policy letter on AR 1-101 process

  26. SUMMARY • Correctly Identify the Gift • Use the Correct Approval Method • Follow the Procedures • Remember that these Gifts Benefit Those who are Most Deserving!

  27. QUESTIONS? CONTACT INFORMATION: 210-916-2031 DSN 429-2031 lorraine.rowbo@amedd.army.mil

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