What are Authenticated Copies and Certified Copies?
Sending Authenticated and Certified Copies -- Four Rules
Legal Demands
Routine Uses
Non-Routine Uses
Court Order Requirements
Medical Records
Alcohol and Drug Rehabilitation Records
Special Circumstances Involving Legal Cases
Questions to Ask Yourself When responding to an Inquiry
Legal Glossary
Obtaining Federal Personnel and Medical Records (Military or Civilian) Pursuant to Court Order or Subpoena
Court Order Requirements, NA Form 13027
Worker's Compensation Information Sheet
Authenticated copies are documents reproduced on legal-size paper (8 1/2 x 14"), then bound, ribboned, and placed under an authentication slip which will be signed by an agency official authorized to sign for the the Archivist of the United States. (Correspondence technicians do not possess this authority.) The agency official, usually a branch chief, certifies that the reproductions are a “true” and “correct” copy of records in the agency´s custody. No deletions are made to the copies. When authenticated copies are sent, an NA Form 13021, Admissibility in Evidence of Copies of Records Authenticated by NPRC, is loosely inserted underneath the authentication slip.
Certified copies are prepared much the same as authenticated copies except that the separation document(s) and any third-party personal identifiers in the records are deleted unless the requester is a routine use. If the copies are deleted an additional sheet advising recipient of the deletions is placed in the packet. And, a copy of the agency´s court order requirements is sent instead of the NA Form 13021.
In response to a legal demand always send authenticated copies.
In response to a request from a routine use send either authenticated or certified copies, DEPENDING ON THE SPECIFIC USE.
In response to a request from a non-routine use with the written consent of a veteran always send certified copies.
If the request is not a legal demand, not a routine use, or does not include a release authorization, send a copy of our Court Order Requirements. (NA Form 13027)
What is a legal demand?
A legal demand is a court order or subpoena signed by a judge of a “court of competent jurisdiction.” A “court of competent jurisdiction” is defined as either a state or federal court. While court orders can be signed by a clerk of the court and subpoenas signed by anyone, NPRC does NOT consider them valid legal demands.
A legal demand can be: (1) an original manually signed by a judge; (2) a photocopy or reproduction of the original signed by a judge; or (3) a photocopy or reproduction of the original which has the stamped, printed signature of the judge. If you cannot read the signature (because it´s illegible) or you are unsure about whether the signature belongs to a judge, telephone the court or the attorneys involved. Upon receipt of a legal demand, NPRC furnishes authenticated copies to a recipient named in the demand, usually an attorney or the clerk of the court.
Legal Demands and Age
Unlike a release authorization, there is NO age limit on a legal demand. However, if a legal demand is over a year old save yourself unnecessary labor by telephoning the attorney(s) involved. The case may have been tried already, plea bargained (if a criminal prosecution), or settled (if a civil suit).
Legal Demands and Courts
Federal Courts - can issue legal demands affecting or interfering with the conduct of NPRC. Most federal trials are held in U.S. district courts. The only name they have is “United States District Courts.” Occasionally, you will also see court orders from the “U.S. Claims Court,” which hears cases in which an individual or corporation sues the U.S. government.
Non-Federal Courts - (state and lower courts) do not have the authority to issue legal demands affecting or interfering with our conduct. Still, we furnish authenticated copies to state and lower courts so long as the release of the records is not restricted by federal law or by the armed force whose records are involved. There are a variety of names for state and lower courts, including:
Superior Court
Circuit Court
Chancery Court
District Court
Court of Common Pleas
Magistrate Court
Justice of the Peace Court
Municipal or County Court
Some ROUTINE USES Who Receive Authenticated Copies
Letterhead requests are often received from the Office of the Judge Advocate General (JAG) for copies of records, possibly in connection with a lawsuit filed against a service department. If the armed force requesting the record is the legal custodian of the record, furnish authenticated copies immediately. If the armed force requesting the record is not the legal custodian of the record (example, a request from the Department of the Army concerns a Marine Corps record), ask the liaison officer how to process the inquiry. The liaison officer (for Navy and USMC) may want to telephone the requester for details about the inquiry before authorizing the release of records. No instructions exist when Army, Air Force, or Coast Guard records are involved. Regarding Coast Guard records, if in doubt, Loan and Transfer to Coast Guard HQ.
U.S. Attorneys are the main administrators of federal law enforcement in the Justice Department. There is a U.S. Attorney in every federal judicial district. Requests from U.S. Attorneys are usually submitted as subpoenas. We will honor these requests (subpoenas) if they are signed by either a U.S. Attorney or an Assistant U.S. Attorney (AUSA). If not signed by a U.S. Attorney or AUSA, the request is returned for signature.
A worker's compensation subpoena or order is NOT considered a legal demand because a judge of a "court of competent jurisdiction" does not sign it. Records are furnished directly to the board because it is a state routine use of records. NOTE: The names of these judges can vary from state to state.
Often a workers compensation subpoena or order, signed by the Administrative Law Judge, will direct you to send the records to a third party, perhaps the employer's attorney(s) or a copy service. DO NOT FOLLOW THIS DIRECTIVE. If records are to be sent to a third party, the requestor must produce either a valid legal demand (signed by a judge of a "court of competent jurisdiction") or the veteran's written consent. (See Sample information sheet at the end of this section of the guide).
A Guardian Ad Litem is a person appointed by the court to protect the interests of a minor or legally incompetent person in a lawsuit. The Guardian Ad Litem will probably submit a subpoena that he or she has signed. The subpoena is honored only if the Guardian Ad Litem also sends a copy of the court appointment.
Some ROUTINE USES Who Receive Certified Copies
Besides U.S. Attorneys in the Justice Department, NPRC receives requests from such federal offices as the U.S. Treasury Department, the U.S. Postal Service, and the FBI. Requests from state and local offices and agencies are submitted by attorneys called a “prosecuting attorney,” “county attorney,” “district attorney,” or “state´s attorney.” Requests will also be signed by an assistant attorney. If the requester specifically indicates the records are needed for trial, send certified copies.
A Grand Jury is a body of citizens whom the court summons to decide whether and against whom it should file criminal charges. It decides whether there is enough evidence to bring a person to trial. A grand jury may investigate possible criminal behavior or corruption. It has broad investigative powers, including subpoena power. Because the grand jury is an investigative body, NPRC sends certified copies in response to a grand jury subpoena.
Attorneys
The veteran´s attorney may be private attorney or a public defender. Send certified copies--if requested. Otherwise, send regular copies.
The adverse attorney is the attorney in a civil suit who is NOT representing the subject of the records. NPRC always bills the adverse attorney in a civil suit. Complete NA Form 13115, Chargeable Case Control, and send form to fee clerk.
NPRC always notifies the veteran or his/her attorney when sending records to an adverse attorney. A copy of the letter or transmittal sent to the adverse attorney will serve as notification. If the adverse attorney provides the veteran´s current address or his/her attorney´s address, send copy of letter or transmittal to that address. If address not provided, send a copy of letter or transmittal to last known address in record.
Copy services are companies hired by attorneys to obtain and reproduce records. Often the copy service will submit its own subpoena. DO NOT honor it. However, if the request includes a release authorization from the veteran, certified copies are furnished to the
Send an NA Form 13027, Court Order Requirements, in reply to a request which is not a legal demand, not a routine use, or does not include the authorization of the veteran. The form explains that NPRC requires a court order or subpoena signed by a judge and cites the authority for this requirement. It also explains what personal information is needed to locate a record in our custody.
If all medical records are requested, you must send the health record. In addition, send any clinical records on file in either of the following two situations: 1) if the request is a true legal demand (court order or subpoena signed by a judge of a "court of competent jurisdiction") or 2) if the request specifically asks for clinical or hospitalization records.
(See encyclopedia entry for clinical records.)
If all medical records are requested and the health record was lent to the VA or retired to the Records Management Center, you must advise the requester about the health record´s location and send any clinical records on file.
If x-rays are requested, advise the requester, “X-rays cannot be loaned to the court. However, they may be loaned to a physician appointed by the court, who will testify to the reading of the x-rays.”
If mental health or psychiatric records are in record, obtain a neuropsychiatric release from the Navy Medical Liaison Office if the request is from a non-routine use with the written consent of the veteran. If the request is a valid legal demand or a routine use it is not necessary to obtain the neuropsychiatric release.
If sending the mental health or psychiatric records in reply to a legal demand advise the requester:
“Some of the information contained in these records may prove injurious to the physical or mental health of the the subject individual if released to him/her; therefore, appropriate measures should be taken to ensure that this information is not disclosed to the individual except to the extent that such disclosure be essential to the issues of the pending proceedings.”
If a legal demand is received and records involve participation in the military´s Alcohol and Drug Rehabilitation Program the records must be sent to the Clerk of the Court. If demand directs you to send records to an attorney(s), telephone the attorney and obtain the address for the clerk of the court.
If request is from a Federal routine use, send records.
If request is from a State routine use, withhold only the documents/records pertaining to the rehabilitation program and send an NA Form 13078. (Prosecuting Attorneys and Workers Compensation Offices are examples of state routine uses.)
If you are sending records because of an authorization from the veteran, withhold only the documents/records pertaining to the rehabilitation program and send an NA Form 13078 UNLESS the authorization specifically allows the release of rehabilitation records.
Request for Deposition or Court Appearance
A deposition is a pre-trial statement of a witness under oath, taken in question and answer form as it would be in court. Depositions may be oral or in the form of written questions. NPRC DOES NOT appear for oral depositions or respond to depositions in the form of written questions unless a party to the action. Authenticated or certified copies of the record will be furnished instead.
If you receive a legal demand for a court appearance, telephone attorney(s) involved, and explain to him/her that our agency´s policy is to provide records in lieu of a court appearance. (See NPRC 1865.107 for additional information.)
Motion to Quash
A motion to quash is an application before the court to cancel or overthrow a subpoena, order, injunction, etc. If you receive a copy of a motion to quash a legal demand (from the veteran or his attorney), telephone the adverse attorney (the party seeking the records) and advise him or her that NPRC will take no further action until the judge has ruled on the matter. If you receive a telephone call from the veteran or his/her attorney claiming a motion to quash has been filed, advise caller to fax you a copy of the motion.
United States IS a Party to the Litigation
If the U.S. government, a specific agency of the U.S. government, or possibly the head of a U.S. government agency is either the plaintiff or defendant in a lawsuit, ask the appropriate liaison officer about how to process the inquiry. If an inquiry involves a Coast Guard record, Loan and Transfer the record.
The law firm of Berry & Berry
Berry & Berry is a law firm handling a class action suit concerning asbestos exposure. In response to court orders issued on behalf Berry & Berry, send regular copies of the military personnel and health record. Do NOT delete copies.
Who is the plaintiff/defendant?
Is the United States a party?
Is this a civil or criminal case?
Is the subpoena or court order signed by a state or federal court judge?
Is requester a routine use? If yes, is it a state or federal routine use?
Is the requester an adverse attorney? Is this a fee case?
Where should the records be sent? What does the subpoena/order or release authorization direct?
Do I need to send a cc to the veteran or his/her attorney?
Are there psychiatric or alcohol/drug abuse treatment records?
Does this case involve anyone in the news? Is this a controversial issue? If the answer to either of these questions is yes, and the record concerns Navy or USMC service, ask the appropriate liaison officer for guidance.
For additional information about legal demands, see NPRC 1864.107
For additional information about routine uses, including Workers Compensation Offices, and non routine uses, see NPRC 1865.16
LEGAL GLOSSARY
(Following is a glossary of legal terminology and expressions that you will find helpful)
Administrative Law Judge - the presiding officer at an administrative hearing with power to administer oaths, take testimony, issue subpoenas, rule on questions of evidence, regulate the course of proceedings, and make agency determinations of fact. The officer does not sit as a law judge, and his/her power is essentially one of recommendation. The Administrative Law Judge’s decision can be appealed to the agency for which he or she hears cases, and then to a court of law.
Administrator - one appointed to handle the affairs of a person who has died intestate [without leaving a valid will].
Admissible Evidence - evidence that can be legally and properly introduced in a civil or criminal trial Affidavit - a written ex-parte statement made or taken under oath before an officer of the court or a notary public or other person who has been duly authorized so to act. An affiant is one who makes such a statement.
At Issue - the contested points in a lawsuit are said to be “at issue”
Capital Case - a criminal prosecution involving the death penalty
Cause - a lawsuit, litigation or action; any question civil or criminal, litigated or contested before a court of law
Chancellor - name used in some states to signify any judge sitting in a court of chancery. A chancery court is guided primarily by equitable [fair] doctrine. Examples: bankruptcy court. Some states with chancery courts: Delaware, Tennessee, Mississippi.
Civil Action - mostly involve the settlement of private conflicts among people or institutions such as businesses. Many civil cases involve domestic relations issues--divorce, child support, custody, and the like. Personal injuries probably account for more claims, called torte actions, than any other cause. In civil cases, the people or businesses involved in disputes file suits.
Class Action - a lawsuit brought by one or more persons on behalf of a larger group
Clerk of the Court - a court officer whose duty it is to keep records, issue formal writings, enter judgements and the like
Conservatorship - the legal right given to a person to manage the property or financial affairs of a person deemed incapable of doing that for him or herself. Conservators have somewhat less responsibility than guardians.
Continuance - the adjournment or postponement to a later date of an action pending in court
Criminal Action - involve the upholding of public or official codes of behavior. In a criminal case, the government brings charges against the person or business who supposedly committed the crime.
Decree - an order of the court
Discovery - formal process of trial preparation in which the parties exchange information to find out details relevant to witnesses. It also reveals other evidence each side will present at trial. Discovery allows the parties to know before the trial begins what facts the other may present. The trial judge may set a deadline date by which all information to be used at trial must be revealed.
Et Al - and others
Executor - a person who either expressly or by implication is appointed by a testator [one who dies leaving a will] to carry out the testator´s directions concerning the dispositions made under the will.
Ex-Parte - in behalf of, on the application of, one party, by or for one party. An ex-parte judicial proceeding is one brought for the benefit of one party only, without notice to or challenge by an adverse party. It refers to an application made by one party to a proceeding in the absence of the other.
Guardian - one who legally has care and management of the person or estate, or both, of an incompetent who cannot act for himself; an officer or agent of the court who is appointed to protect the interests of minors or incompetent persons and to provide for their care, welfare, education, maintenance and support.
Indictment - an accusation by an grand jury charging a person with a crime
Justice of the Peace - a local magistrate empowered to try minor cases, administer oats, and perform marriages. This office has been abolished in most states, with similar powers transferred to municipal or district courts.
Litigants - the parties involved in a lawsuit
Magistrate - a judicial officer exercising some of the functions of a judge; it can include inferior judicial officers such as justices of the peace. United States Magistrates (i.e., federal magistrates) are appointed by federal court judges. These magistrates´ powers include the ability to hear and determine any pre-trial motion pending before the court, to conduct hearings, including evidentiary hearings, and to submit proposed findings of facts and recommendations for disposition.
Motion - an application to the court requesting an order or rule in favor of the applicant. Motions may be made orally, or more formally, in writing, by a Notice of Motion. They may be determined without notice to the adverse parties [ex-parte] or argued by adverse parties.
Notary Public - a public officer under civil and commercial law, authorized to administer oaths, to attest to and certify certain types of documents, to take depositions, and to perform certain acts in commercial matters. The seal of the notary public authenticates a document. In many jurisdictions attorneys can act as notaries.
Parties:
Plaintiff/Petitioner - the “state” or “people of the state” in a criminal prosecution; the person bringing the suit, the offended party in a civil suit.
Defendant/Respondent - person being criminally prosecuted; the person or institution against whom a civil suit is filed. The plaintiff´s name will always appear first. Examples: The State of Michigan v. John Doe or Jones v. Smith.
Power of Attorney - an instrument in writing by which one person, as principal, appoints another as his agent and confers upon him the authority to perform certain specified acts or kinds of acts on behalf of the principal. The primary purpose of the power of attorney is to evidence the authority of the agent to third parties with whom the agent deals.
Public Defender - a government lawyer who provides legal defense services to a poor person accused of a crime
Settlement - a compromise achieved by the adverse parties in a civil suit before final judgment, whereby they agree between themselves upon their respective rights and obligations, thus avoiding a trial
Stipulation - an agreement, admission, or concession made by parties in a judicial proceeding or by their attorneys
Subpoena - an order issued under the authority of a court to compel a witness to appear and testify
Subpoena Duces Tecum - type of subpoena issued by a court at the request of one of the parties to a suit requiring a witness to bring to court or to a deposition any relevant documents that are under the witness´s control
Workers' Compensation - various state and federal laws which seek to provide benefits to workers and their families as compensation for work-related injuries, diseases, and deaths. Under these laws, employers compensate individuals for injuries, including medical expenses and permanent or temporary disability, regardless of who was at fault. Families will get benefits if the worker dies because of an injury. Workers’ compensation laws not only cover injuries that occur on the job, but they also cover “occupational diseases” resulting from on-the-job exposure, such as asbestosis, silicosis, and black lung disease, if the job presents a greater risk of getting the disease than other jobs. All states have some type of workers’ compensation. State laws vary in the amount of benefits provided but are similar to each other. Workers’ compensation boards or courts exist in most states with jurisdiction to review cases arising under the laws.
In workers’ compensation, an injured or ill employee submits a claim to the employer’s insurance carrier and to the workers’ compensation agency in the state. If the claim is not challenged by the employer, payment is made by the insurance company. If the employee is unsatisfied with the award or the employer contests the claim, a hearing is scheduled and evidence relating to the circumstances of injury and extent of injury is presented before a workers’ compensation judge (sometimes called an administrative law judge, hearing examiner, or hearing officer) who will decide the matter.
In most states, if a workers’ compensation law covers an individual, it prohibits the individual from filing a civil suit against the employer for conditions covered by the law. In many states, though, the worker can still sue other negligent parties who may have played a role. Such parties could include coworkers, producers of defective machinery, etc.
Access to military or civilian personnel and medical records on file at the National Personnel Records Center, St. Louis, Missouri, may be gained pursuant “to the order of a court of competent jurisdiction.” Valid court orders should be addressed to this Center. Subpoenas qualify as orders of a court of competent jurisdiction only if they have been signed by a judge. To be valid, court orders must also be signed by a judge. Authority for these requirements is 5 U.S.C. 552a(b)(11), as interpreted by Doe vs. DiGenova, 779 F. 2d. 74 (D.C. Cir. 1985), and Stiles vs. Atlanta Gas and Light Company, 453 F. Supp. 798 (N.D. Ga. 1978).
Please furnish the address of the clerk of the court so that photocopies may be furnished in the form of a certificate under seal to the clerk of the court issuing the order. Or, the photocopies may be sent to a recipient other than the clerk of the court as long as the order of the court names another recipient and gives the appropriate address. Under applicable Federal Law, photocopies so certified shall be admitted into evidence as original records 44 U.S.C. Sec. 2116(b). Is is also helpful to furnish the names and addresses of attorneys involved.
The court order must describe the records and information desired in sufficient detail to identify them with accuracy. A minimum of detail would include as many of the following as possible: The complete name, service number, social security number, date of birth, branch of service or Federal agency by which employed, and dates of military service (active, reserve, or retired) or of Federal employment. If clinical treatment records are needed, include also the dates, places, and type(s) of treatment given.
The court order should be addressed and sent to either of the following addresses, as appropriate:
| Director National Personnel Records Center, NARA (Military Personnel Records) 9700 Page Avenue St. Louis, MO 63132-5100 |
Director National Personnel Records Center, NARA (Civilian Personnel Records) 111 Winnebago Street St. Louis, MO 63118-4199 |
WORKERS’ COMPENSATION INFORMATION SHEET
Access to military personnel/medical records in the custody of the National Personnel Records Center is limited by the Privacy Act of 1974 (5 U.S.C. 552a), and Department of Defense Regulations. The Privacy Act permits release of information from these records, without the permission of the veteran, to a “routine use” of the records. The Department of Defense has determined that State Workers´ Compensation Boards/Offices are generally considered to be routine uses of the records. This exception applies only to the Boards/Offices of each state, however, and not to third parties representing another interest. Even if the State Board/Office specifies release to a third party, we will comply by sending the information only to the routine use, i.e., the State Board/Office. Therefore, please submit one of the following:
The address the State Board/Office of Workers´ Compensation where the information can be sent. Without the veteran´s authorization, we will provide information only to the “routine use.”
The signed and dated authorization of the veteran, specifically directing that information from the military record be provided to you. The signed authorization must be dated within the last year.
Source: NPRC 1864.107 and NPRC 1865.16