Military members, including those enlisted in the United States Army, Navy, Marine Corps, and Air Force, are not exempt from being served important legal documents via a process server, and it’s something that process servers all over the U.S. may encounter at one point or another.
To serve a member of the military, determine where that person is located, if that individual is deployed, on post, or off post.
It’s important to note that a military member’s legal domicile would refer to the state in which he or she entered into the military according to the The Service members Civil Relief Act (SCRA), 50 U.S.C. App. 501 et seq. which allows service members to retain their original domicile for income tax and voting purposes, regardless of where they are stationed.
Serving military personnel requires a working understanding of the appropriate procedures for each U.S. Military branch and individual circumstances. Of course, depending on the type of documents you are serving, there may be additional regulations you must follow (e.g. federal or state).
In most cases, it’s not an issue to complete service of process on a member of the military. Below we’ve outlined some of the important regulations specific to each branch.
When a member of the military is not living at a military post/base (members of the military who are not deployed or on active duty, as well as retired military personnel)— ie living within a civilian community— you follow the state and county guidelines for effectuating service. In other words, they are served as you would an individual who is not a member of the military.
According to the Code of Federal Regulations (Army 32 C.F.R. § 516.10) and Army Regulation, DA (Department of Army) officials “will not prevent or evade the service or process in legal actions brought against the United States or against themselves in their official capacities. If acceptance of service of process would interfere with the performance of military duties, Army officials may designate a representative to accept service. DA personnel sued in their individual capacity should seek legal counsel concerning voluntary acceptance of process.”
Army officials will help facilitate service of process, but are not required to complete it for a process server. Service members of the Army are given the option to consult legal advice prior to accepting service. In those cases, process servers would not be allowed to attempt service. Army officials are forbidden from preventing or evading service.
If the service member voluntarily accepts service, the process server would actually send the documents to the commander for delivery to the service member. The commander would then physically deliver the document, but only if the member voluntarily agreed to accept the service of process beforehand. In such cases, the commander is not a process server but merely a facilitator for the process server.
Army regulations permit access to Army property only when the state has reserved the right to serve process, in areas of concurrent jurisdiction, and in areas where the federal government has only a proprietary interest. If the Army base has exclusive federal jurisdiction, aka federal enclave, access may not be permitted. Here is a list of some federal enclaves in California. If you’re not sure of the jurisdiction of the base, call and ask.
For service members of the Air Force, the regulations are very similar to that of the Army; however, Air Force authorities may in some circumstances allow access to military installations for the purpose of serving out of state process. Commanding officers are prohibited from preventing, refusing, or being uncooperative. However, they are not required to complete service. In situations where service is refused by the service member prior to consulting legal advice, Air Force policy allows process servers on areas of exclusive federal jurisdiction.
So, regardless of federal or state jurisdiction, the Air Force is more liberal in its policies and allows process servers on all Air Force bases/military installations.
As such, commanding officers and/or the Department of Defense would act as facilitators to arrange a meeting between the process server and the service member being served. In situations where a service member in the Air Force needs to be served, contact the Department of Defense or Judge Advocate General (JAG) who can help assist you in reaching that individual and potentially escort you on the base/military installation.
There is little difference in how service of process is effectuated for members of the Coast Guard from members of the Army. Commanding officers must make service members available for service, but again, they are not required to complete service.
Therefore, it would be in your best interest to contact the legal office (Department of Defense security or JAG who would in turn provide you with the specific details of how service could be completed. Typically, either the Provost Marshall or law enforcement/security would escort you and/or arrange for service.
For service upon members of the Navy or Marine Corps, service of process is handled much in the same way that it is for members of the Army as outlined in the Code of Federal Regulation (Navy and Marine Corps 32 C.F.R. § 720.20). The main difference, however, is that the commanding officer must provide consent for the service member to be served. Additionally, Navy and Marine Corps. regulations specifically allow servicemembers to refuse service from out-of-state courts.
The Code of Federal Regulations dealing with service of process on Navy and Marine Corps service members reads as follows:
“Commanding officers afloat and ashore may permit service of process of Federal or State courts upon members, civilian employees, dependents, or contractors residing at or located on a naval installation, if located within their commands.
Service will not be made within the command without the commanding officer’s consent. The intent of this provision is to protect against interference with mission accomplishment and to preserve good order and discipline, while not unnecessarily impeding the court’s work.”
Additionally, it is required that the commanding officer or designated officer be present when service is effectuated. There are stipulations in the Code of Federal Regulations that note depending on the type of case, the service member being served with legal documents would be advised to seek legal counsel for personal matters and Government counsel for official matters.
Just as you would contact the Department of Defense security office for details on how to proceed on an army base, you would do the same for service on a service member at a naval or marine base.
You will also notice that similarly to the Code of Federal Regulations for service of process on service members in the Army, commanding officers in the Navy or Marines are not required to act as a process server, nor are they required to follow through with making sure service was effectuated. Ultimately, it is your responsibility as the process server to make sure that it is completed.
This one can be problematic for multiple reasons — not only are you dealing with military regulations and code and the U.S. Code of Federal Regulations, you also need to respect and heed the guidelines of the host nation. Since we are focusing on basic service upon military members, we aren’t going to go in depth on what each country requires, but you can find more information on that in the text from the 1965 Hague Convention.
Additionally, due to the aforementioned Service members Civil Relief Act, any legal proceedings would likely be postponed until the service member has returned from his or her deployment.
If you are unable to complete personal service, you may be able to employ alternative methods of service, including service by the sheriff, sub-serving the military member’s commander, and certified mail. Be sure to double check what alternative method is applicable according to the regulations if you are unable to complete personal service.
While the laws clearly state that military officials will not prevent or evade service, they aren’t required to complete it. For example, officials may arrange a meeting for the process server and service member to meet, but officials are not required to check up on the meeting to make sure the documents were received.
If you follow the regulations, completing service should be relatively easy.
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