fines or civil damages, directly or indirectly.

(b) Whenever possible a written contract between the selected counsel and the officer responsible under § 47.08 or his designee acting on behalf of the United States of America, shall be entered into. The contract shall cover counsel fees, and, when appropriate other costs, arising in defense of the entire case in the court of the first instance. In the event the case is appealed to higher tribunals, supplemental agreements shall be executed for each appeal. A copy of the contractual agreement shall serve as the obligating document. This contract shall be written so as not to establish an employer-employee relationship between the selected counsel and the Government of the United States.

(c) If, because of local conditions or customs, it is not practicable to enter into a formal contractual arrangement, a letter of understanding shall be executed between the officer responsible under § 47.08 or his designee and the selected counsel. There should be a mutual understanding that the counsel fees and other expenses arising in defense of the case, which will be paid by the U.S. Coast Guard, shall conform to amounts paid by nationals of the foreign country under similar circumstances.

(d) The provision of counsel and payment of expenses under these regulations in this part is not subject to the provisions of the Comptroller Manual, U.S. Coast Guard. However, the contract clauses set forth in Part 5, section VII, Armed Services Procurement Regulations may be used as a guide in contracting.

(e) In consideration of the desirability of timely procedural action, a legal officer on the staff of the officer responsible under § 47.08 may be designated contracting officer with contracting authority limited to agreements described in this section. The effect of this designation would be to combine within one office the duties of contracting officer and legal officer.

No reimbursement shall ordinarily be required from defendants with respect to payments made in their behalf under the regulations in this part. However, all payments made in behalf of a defendant who willfully causes forfeiture of bail provided on his behalf under these regulations shall constitute a debt owed to the United States. Prior to the posting of bail on the behalf of a defendant, a signed agreement will be secured from the defendant wherein he agrees to remit the amount of such bail or permit the application of so much of his pay as may be necessary to reimburse the government in the event he willfully causes forfeiture of bail. Such agreement should be made with the understanding that it does not prejudice his right of appeal to the Comptroller General and the courts of adjudication after such payment or deduction has been made if he considers the amount thereof to be

Subpart 49.01-General Provisions § 49.01-1 Applicability.

The Commandant of the Coast Guard is hereby designated and is authorized to appoint, in his discretion, the person or persons who may receive active-duty pay and allowances, amounts due for accumulated or accrued leave, or any retired or retainer pay, otherwise payable to personnel on the active or retired list of the Coast Guard and Coast Guard Reserve, entitled to Federal pay either on the active or any retired list of said service, who, in the opinion of competent medical authority, have been determined to be mentally incapable of managing their own affairs, and for whom no legal committee, guardian, or other representative has been appointed by a court of competent jurisdiction.

Requests for the appointment of a person or persons to receive moneys due personnel believed to be mentally incapable of managing their own affairs shall be submitted to the Commandant of the Coast Guard:

(a) By any person or persons who believe, because of relationship, they should be appointed to receive payments on behalf of the alleged incompetent;

(b) By the Commanding Officer of the alleged incompetent if the latter is on active duty;

(c) By the Commanding Officer of any Armed Forces hospital in which the mentally incompetent is undergoing treatment;

(d) By the head of any veterans' hospital, or other public or private institution in which the alleged incompetent is undergoing treatment;

(e) By any other person or organization acting for and in the best interests of the alleged mentally incompetent. § 49.01-10 Determination of incompe

tency.

After examining the legitimacy, substance, and sufficiency of the application, the Commandant shall either (a) direct the Commanding Officer of the alleged mentally incompetent, (b) the Commanding Officer of the Coast Guard unit to which such incompetent may be conveniently referred, or (c) request the Surgeon General of the Public Health Service to convene or appoint, at the

Public Health Hospital or facility, where the alleged incompetent is receiving treatment or to which his case may be conveniently referred, a board of not less than three qualified medical officers, one of whom shall be specially qualified in the treatment of mental disorders, to determine whether the alleged incompetent is capable of managing his own affairs. The record of proceedings and the findings of the board shall, after action by the Convening or Appointive Authority thereon, be forwarded to the Commandant.

Subpart 49.05-Trustee

§ 49.05-1

Appointment of trustee.

Upon receipt of a finding by a board convened or appointed in accordance with § 49.01-10, that the alleged incompetent is mentally incapable of managing his own affairs, the Commandant may appoint a suitable person or persons, not under legal disability so to act, as trustee or trustees to receive in behalf of the incompetent all amounts due the incompetent from such sources set forth in § 49.01-1, and to use said funds in the best interests of the incompetent.

§ 49.05-5 Bonding of trustee.

The trustee or trustees appointed to receive moneys in behalf of incompetent personnel shall furnish a bond in all cases when the amounts to be received may be expected to exceed $1,000, and in such other cases when deemed appropriate by the Commandant. The bond so required and furnished shall have as surety a company approved by the Federal Government, and shall be in such amount as is required by the Commandant. Such bonds shall be continued in effect for the life of trusteeship and expenses in connection with the furnishing and renewal of such bonds may be paid out of sums due the incompetent. § 49.05-10 Affidavits required.

The trustee or trustees appointed to receive moneys due incompetent personnel shall, prior to the payment of any such moneys, execute and file with the Commandant an affidavit or affidavits saying and deposing that any moneys henceforth received by virtue of such appointment shall be applied solely to the use and benefit of the incompetent and that no fee, commission, or charge shall be demanded, or in any manner accepted, for any service or services rendered in con

nection with such appointment as trustee or trustees.

Subpart 49.10-Reports and Moneys § 49.10-1 Reports required.

The trustee or trustees so appointed shall submit reports annually, or at such other times as the Commandant may designate. The report shall show a statement of the conditions of the trust account at the time of the submission of the report, including all funds received on behalf of the incompetent; all expenditures made in behalf of the incompetent, accompanied by receipts or vouchers covering such expenditures; and a receipt indicating that the surety bond required by § 49.05-5 has been renewed. When the trustee is the spouse or adult dependent of the incompetent, receipts or vouchers need not be filed for expenditures made for living expenses. If the trustee or trustees fail to report promptly and properly at the end of any annual period or at such other times as the Commandant desires, the Commandant may, in his discretion, cause payment to such trustee or trustees to cease, and may, if deemed advisable, appoint another person or persons not under legal disability so to act, to receive future payments of moneys due the incompetent for the use and benefit of the incompetent.

§ 49.10-5 Payment of moneys due.

Upon the appointment of a trustee or trustees to receive moneys due an incompetent, the authorized certifying officer having custody of that person's pay record shall be advised. After such notification, payments of moneys due the incompetent may be made by the appropriate officer in accordance with procedure prescribed by the Commandant. All such payments so made, however, shall be made to the designated trustee or trustees.

incompetent by a court of competent jurisdiction;

(4) Failure of the trustee or trustees to render the reports required by § 49.10-1;

(5) That there is probable cause to believe that moneys received on behalf of the incompetent have been, or are being, improperly used;

(6) A finding by a board of medical officers that the heretofore incompetent is mentally capable of managing his own affairs;

(7) That the Commandant deems it to be in the best interest of the incompetent.

(b) In the event of termination of payments under subparagraphs (2), (4), (5), or (7) in paragraph (a) of this section, the Commandant may, if deemed appropriate, appoint a successor trustee or trustees. The successor trustee or trustees, so appointed, shall comply with the provisions of the regulations and instructions in this part issued thereunder, and do all acts in the manner required of the original trustee or trustees. § 49.10-15 Final accounting by trustee.

Notification of final action.

AUTHORITY: The provisions of this Part 50 issued under sec. 8, 18 Stat. 127, as amended, sec. 302, 58 Stat. 287, as amended; 14 U.S.C. 92, 38 U.S.C. 6931.

(a) A Retiring Review Board, referred to in this part as the Board, is hereby established in the Coast Guard.

(b) It will be the duty of the Board to review, at the request of any Coast Guard officer retired or released to inactive service, without pay, for physical disability, pursuant to the decision of a retiring board, the findings and decision of the retiring board. The term "retired or released to inactive service" includes every kind of separation from the service.

(c) After reviewing the findings and decision of a retiring board the Board will affirm or reverse, in whole or in part, the findings and decision of the retiring board.

(d) In carrying out its duties the Board shall have the same powers as exercised by, or vested in, the retiring board whose findings and decision are being reviewed.

§ 50.2 Composition of Board.

(a) The Board will be composed of five commissioned officers designated for each case from a panel appointed by the Commandant. The senior Coast Guard member of the panel will designate the members of the Board for each case, three of whom shall be officers of the Coast Guard and two of whom shall be officers of the Public Health Service.

(b) The senior Coast Guard member of the Board will be President and the junior Coast Guard member will be Recorder.

(c) The Board will convene at the time and place designated by the President for each case, and will recess and adjourn at his order.

[10 F.R. 5650, May 17, 1945, as amended by CGFR 53-12, 18 F.R. 2953, May 22, 1953]

§ 50.3 Request for review.

(a) Any officer of the Coast Guard who is retired or released to inactive service, without pay, for a physical disability, pursuant to the decision of a Coast Guard retiring board, may request a review of the findings and decision of the retiring board.

(b) An application requesting a review must be in writing and shall be addressed to the Retiring Review Board, Coast Guard Headquarters, Washington D.C. 20226. Forms for application for review will be provided upon request.

(c) An application requesting a review shall contain:

(1) The full name of the applicant; (2) The mailing address of the applicant;

(3) A brief statement setting out the basis of the request for review, showing in general the nature of error or inequity believed to have occurred in the findings and decision of the retiring board;

(4) The corrective action requested; (5) Whether the applicant desires to appear before the Board in person;

(6) Whether the applicant will be represented by counsel, and if so, the name and address of counsel.

(d) No request for review shall be valid, and the Board will not consider an application, unless filed within fifteen years after the date of retirement for disability, or after the effective date of the act of June 22, 1944, whichever is the later.

§ 50.4 Presentation of case.

(a) The applicant may present his

case:

(1) Solely by written application, or by written application together with any additional written evidence or argument that he may desire to submit;

(2) At a hearing before the Board. (b) The case of an applicant may be presented by his counsel. The term "counsel" includes members of the bar in good standing, accredited representatives of veterans' organizations recognized by the Veterans' Administration under section 200 of the act of June 29, 1936 (49 Stat. 2031, 38 U. S. C. 101), and any other person approved by the Board.

(c) If an applicant signifies a desire to present his case at a hearing, the Board will give him written notice of the place of his hearing, and of the time, which shall be at least thirty days after the time of mailing the notice.

(d) The Board may, upon its own motion or at the request of the applicant or his counsel, grant a continuance whenever it appears necessary, in the judgment of the Board, in order to insure a thorough, complete and equitable hearing.

(e) The case of any applicant who fails to appear, either in person or by counsel, after being duly notified of the time and place of the hearing will be decided upon the written application and such other evidence as is available to the Board.

(f) As far as practicable the hearings of the Board will be conducted in accordance with the pertinent instructions contained in Coast Guard Boards, 1935, as amended, except that:

(1) Physical examination of the applicant is not mandatory, but the Board may request that he submit to physical examination by physicians of the Board's choice in any case in which it appears to the satisfaction of the Board to be essential;

(2) The medical members of the Board will not submit a report and will not be subject to examination.

(g) Evidence may be submitted to the Board by oral testimony under oath, or in the form of depositions or affidavits. Witnesses appearing before the Board will be subject to examination or crossexamination, as the case may be, by members of the Board and the applicant or his counsel.

(h) The Board will consider all available service records and all matter adduced by the applicant that bears upon the merits of the case. It will not be restricted by the rules of evidence.

(i) Classified matter of the Coast Guard will not be made available to an applicant or his counsel. The Board will, when it deems it necessary in the interest of justice and compatible with the public interest, make available a summary of relevant classified matter.

(j) The Government will not assume or pay any expenses incurred by an applicant, or by his witnesses or counsel. § 50.5 Action by the Board.

(a) After a complete and thorough review of the evidence before it the Board will, in closed session, deliberate and make its decision affirming or reversing the findings and decision of the retiring board being reviewed.

(b) If the Board reverses the findings of the retiring board being reviewed, it will make complete findings, including: (1) Whether the applicant was incapacitated for active service;

(2) If so, the disability causing the incapacity;

(3) Whether the incapacity is permanent;

(4) Whether the incapacity was the result of an incident of service or incurred in the line of duty;

(5) Whether the incapacity was the result of the applicant's own vicious habits;

(6) In the case of Reserve officers and officers who have served under temporary appointments, when the physical disability was incurred.

(c) The findings and decision of a majority of the Board will constitute the findings and decision of the Board. Members who do not concur with the majority may file a minority report.

(d) When the Board has concluded its proceedings in any case the Recorder will prepare a complete record thereof, including (1) the application for review, (2) a transcript of the hearing, if any, (3) affidavits, briefs, and written agreements filed in the case, (4) the findings and decision of the Board, and (5) all other papers and documents necessary to reflect a true and complete record of the proceedings. This complete record will be transmitted to the Commandant for appropriate action.

[10 F.R. 5650, May 17, 1945, as amended by CGFR 53–12, 18 F.R. 2953, May 22, 1953]

§ 50.6 Notification of final action.

The officer requesting the interview will be notified by letter of the final action taken in the case.

[CGFR 48-73, 13 F.R. 9333, Dec. 31, 1948]