[Federal Register Volume 59, Number 237 (Monday, December 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29167]
[[Page Unknown]]
[Federal Register: December 12, 1994]
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Part II
Department of Defense
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Department of the Army
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32 CFR Parts 536 and 537
The Army Claims System; Final Rule
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DEPARTMENT OF DEFENSE
Department of the Army
32 CFR Parts 536 and 537
The Army Claims System
AGENCY: Department of the Army, DOD.
ACTION: Final rule.
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SUMMARY: The Department of the Army announces a revision and
consolidation of 32 CFR Parts 536, Claims Against the United States and
537, Claims on Behalf of the United States in order to bring them in
line with new policies and procedures being promulgated in Army
Regulation 27-20, Claims. This revision retains part 536 as The Army
Claims System. Part 537 is removed and held in reserve for future use.
This part prescribes the policies, procedures, and responsibilities for
investigating, processing, and settling claims against and in favor of
the United States under the authority conferred by certain statutes,
regulations, international and interdepartmental agreements, and
Department of Defense directives. It is intended to ensure that claims
are properly investigated, adjudicated objectively and fairly, and
either paid or collection action initiated. Because of the complexity
and length of changes and consolidation of parts 536 and 537, a
breakout of the scope or responsibilities of each subpart to this whole
part is listed in the Supplementary Information part of this
submission. By reviewing the supplementary information portion, reading
of the complete part becomes necessary in order to understand the
entire part.
EFFECTIVE DATE: December 12, 1994.
ADDRESSES: Director, U.S. Army Claims Service, Building 4411, Llewellyn
Ave., Fort Meade, Maryland 20755-5360.
FOR FURTHER INFORMATION CONTACT:
LTC Cashiola, (301) 677-7622 or 7960.
SUPPLEMENTARY INFORMATION:
(Subpart A). Subpart A is the introduction of part 536. (Subpart
B). Subpart B describes the investigation and processing of claims
investigation and the importance of claims investigation. (Subpart C).
This subpart is applicable in all locations and prescribes the
substantive bases and special procedural requirements for the
settlement of claims against the United States for death; personal
injury; or damage, loss, or destruction of property caused by military
personnel or civilian employees of the DA acting within the scope of
their employment and incident to the noncombat activities of the DA,
provided such claim is not for personal injury or death of a member of
the Armed Forces or Coast Guard or civilian officer or employee whose
injury or death is incident to service. (Subpart D). This subpart
prescribes the substantive bases and special procedural requirements
for the administrative settlement of claims against the United States
under the FTCA and the implementing Attorney General's Regulations
based on death, personal injury, or damage to or loss of property that
accrues on or after 18 January 1967. (Subpart E). This subpart
prescribes the substantive bases and special procedural requirements
for the administrative settlement and payment, in an amount not more
than $1,000, of any claim against the United States not cognizable
under any other provision of law for damage or loss of property, or for
personal injury or death caused by a member or employee of the DA
incident to the use of a U.S. vehicle at any location or incident to
the use of other U.S. property on a Government installation. (Subpart
F). This subpart is applicable in all places and sets forth the
procedures to be followed in the settlement and payment of claims for
death, personal injury, or damage, loss, or destruction of property
caused by members or employees of the Army National Guard; noncombat
activities of the Army National Guard when engaged in training or duty
under 32 U.S.C. provided such claim is not for personal injury or death
of a member of the Armed Forces or Coast Guard and an employee whose
injury or death is incident to service. (Subpart G). this subpart
provides procedures and defines responsibilities for the investigation,
processing, and settlement of claims arising out of acts or omissions
of members of a foreign military force or civilian component present in
the United States, or a territory, commonwealth, or possession thereof
under the provisions of reciprocal international agreements which
contain claims settlement provisions applicable to claims arising in
the United States such as Article VIII of the Agreement Regarding the
Status of Forces of Parties to the North Atlantic Treaty. (Subpart H).
This subpart deals with claims against the United States. Title 10,
U.S.C., section 4802, provides for the settlement or compromise of
claims for damage caused by a vessel of, or in the service of, the
Department of the Army (DA) or by other property under the jurisdiction
of the DA; compensation for towage and salvage service, including
contract salvage, rendered to a vessel of, or in the service of, the DA
or other property under the jurisdiction of the DA or damage caused by
a maritime tort committed by any agent or employee of the DA or by
property under the jurisdiction of the DA. (Subpart I). This subpart
sets for the standards to be applied and the procedures to be followed
in the processing of claims for damage, loss, or destruction of
property owned by or in the lawful possession of an individual whether
civilian or military, a business, a charity, or a State or local
government, where the property was wrongfully taken or willfully
damaged by military members of DA. (Subpart J). This subpart implements
the Foreign Claims Act (FCA) and authorizes the administrative
settlement of claims of inhabitants of a foreign country, or by a
foreign country or a political subdivision hereof, against the United
States for personal injury or death or property damages caused outside
the United States, its territories, commonwealths, or possessions by
military personnel or civilian employees of the DA, or claims which
arise incident to noncombat activities of the Army. (Subpart K). This
subpart deals with personal claims and related recovery actions,
delegation of authority and prescribes the substantive bases and
special procedural rules for the administrative settlement of claims
against the United States submitted by the Active Army, Army National
Guard and U.S. Army Reserve personnel, and civilian employees of DOD
and DA for damage to or loss of personal property incident to their
service. (Subpart L). This subpart sets forth the procedures to be
followed in the settlement and payment of claims by employees of
nonappropriated fund activities for the loss of or damage to personal
property incident to their employment, and for claims generated by the
acts or omissions of the employees of such funds. (Subpart M). This
subpart establishes the authority and responsibility for affirmative
claims. This subpart prescribes procedures for the administrative
determination, assertion, collection, settlement, and waiver of claims
in favor of the United States for damage to, loss, or destruction of
Army property, and for the recovery of the reasonable value of medical
care furnished or to be furnished by the United States under the
statutes cited in Sec. 536.213. (Subpart N). This subpart sets forth
the procedures for all aspects of records management to include,
arrangement of files, file management; maintenance of and retrieval of
files, files disposition, etc., and monthly claims reporting system as
pertains to Claims Office Administration.
Army publications referenced in this Final Rule may be purchased
from the National Technical Information Service, U.S. Department of
Commerce, 5285 Port Royal Road, Springfield, Virginia 22161. The U.S.
Code or public laws, can normally be reviewed in any public library.
Executive Order 12291
This final rule has been reviewed under Executive Order 12291. The
effect of this proposed rule on the economy will be less than $100
million.
Regulatory Flexibility Act
This final rule has been reviewed with regard to the requirements
of the Regulatory Flexibility Act of 1980. This action does not have a
significant impact on a substantial number of small entities.
Paperwork Reduction Act
This final rule does not contain reporting or recordkeeping
requirements subject to approval by the Office of the Management and
Budget under the requirements of the Paperwork Reduction Act of 1980
(44 U.S.C. 3507).
List of Subjects
32 CFR Part 536
Claims, Government employees, Military personnel.
32 CFR Part 537
Claims, Health care.
PART 537--CLAIMS ON BEHALF OF THE UNITED STATES--[REMOVED]
1. 32 CFR Part 537 is removed.
2. 32 CFR Part 536 is revised as follows:
PART 536--THE ARMY CLAIMS SYSTEM
Subpart A--The Army Claims System
536.1 Purpose.
536.2 References.
536.3 Explanation of abbreviations and terms.
536.4 Types of claims.
536.5 Command and organizational relationships.
536.6 Designation of claims attorneys.
Responsibilities, Operations, Policies, and Guidance
536.7 Responsibilities.
536.8 Operations of claims components.
536.9 Claims policies.
536.10 Guidance concerning disclosure of information and
assistance.
536.11 Single service claims responsibility (DODD 5515.8).
536.12 Cross-servicing of claims (DODD 5515.3).
Subpart B--Investigation and Processing of Claims Investigation
536.13 Importance of the claims investigation.
536.14 Reasons for investigation.
536.15 Immediate investigation requirement.
536.16 Unit claim officers.
536.17 Claims office responsibility.
536.18 Transfer of responsibility.
536.19 Investigative procedures.
Claims Receipt and Disposition
536.20 Presentation.
536.21 Disposition of claims.
536.22 Claims memorandum of opinion.
536.23 Actions.
Liability and Quantum Determinations
536.24 General considerations.
536.25 Incident to service exclusionary rule.
536.26 Property damage appraisers.
536.27 Independent medical examinations.
536.28 Effect on award of other payments to claimant.
536.29 Claims with more than one potential source of recovery.
Settlement Procedures
536.30 Settlement.
536.31 Claims forwarded without settlement.
536.32 Settlement agreement.
536.33 Vouchers.
536.34 Accounting codes.
536.35 Payment.
536.36 Effect of payment.
536.37 Notification as to denial of claims.
Small Claims
536.38 General.
536.39 Investigation.
536.40 Report of investigation.
536.41 Processing.
536.42 Settlement agreement.
536.43 Payment.
Advance Payments
536.44 Authority.
536.45 Conditions for advance payment.
536.46 Authorization.
536.47 Advance payment acceptance agreement.
Subpart C--Claims Cognizable Under the Military Claims Act
536.48 Statutory authority.
536.49 Scope.
536.50 Claims payable.
536.51 Claims not payable.
536.52 Claims having multiple remedies.
536.53 Presentation of claim.
536.54 Procedures.
536.55 Law applicable to liability.
536.56 Measure of damages for property claims.
536.57 Measure of damages in injury or death claims arising in the
United States or its possessions.
536.58 Measure of damages in injury or death claims arising in
foreign countries.
536.59 Failure to substantiate a claim.
536.60 Structured settlement.
536.61 Settlement authority.
536.62 Claims over $100,000.
536.63 Settlement procedures.
536.64 Action on appeal.
536.65 Cross-servicing of claims.
536.66 Attorney fees.
536.67 Payment of costs, settlements, and judgments related to
certain medical malpractice claims.
536.68 Payments of costs, settlements, and judgments related to
certain legal malpractice claims.
Subpart D--Claims Cognizable Under the Federal Tort Claims Act
536.69 Authority.
536.70 Scope.
536.71 Claims payable.
536.72 Law applicable.
536.73 Subrogation.
536.74 Indemnity or contribution.
536.75 Claims not payable.
536.76 Claims under other laws and regulations.
536.77 Procedures.
536.78 Payment of claims.
536.79 Acceptance of award.
536.80 Delegation of authority.
536.81 Consultation with the Department of Justice.
536.82 Reconsideration.
Subpart E--Claims Involving Government Vehicles and Property Not
Cognizable Under Other Law
536.83 Statutory authority.
536.84 Scope.
536.85 Claims payable.
536.86 Claims not payable.
536.87 When claim must be presented.
536.88 Procedures.
536.89 Settlement agreement.
536.90 Delegation of authority.
536.91 Reconsideration.
Subpart F--Claims Arising from Activities of the Army National Guard
536.92 Statutory authority.
536.93 Scope.
536.94 Claims payable.
536.95 Claims not payable.
536.96 Claims under other subparts.
536.97 Notification of incident.
536.98 Investigation.
536.99 Claims in which there is a State source of recovery.
536.100 Claims against the ARNG tortfeasor individually.
536.101 When claims must be presented.
536.102 Where claims must be presented.
536.103 Procedures.
536.104 Settlement agreement.
Subpart G--Claims Under Status of Forces and Other International
Agreements
General
536.105 Statutory authority.
Claims Arising in the United States
536.106 Scope.
536.107 Notification of incidents.
536.108 Liaison with Sending State representatives.
536.109 Investigations.
536.110 Claims procedures.
536.111 Settlement authority.
536.112 Advance payments.
536.113 Litigation.
536.114 Assistance to foreign forces.
Claims Against the United States Arising Overseas
536.115 Scope.
536.116 Claims procedures.
536.117 Responsibilities.
536.118 Reimbursements for nonappropriated funds.
536.119 Reimbursement for Coast Guard activities.
Subpart H--Maritime Claims
General
536.120 Statutory authority.
536.121 Related statutes.
Claims Against the United States
536.122 Scope.
536.123 Claims exceeding $500,000.
536.124 Claims not payable.
536.125 Claims under other laws and regulations.
536.126 Subrogation.
536.127 Limitation of settlement.
536.128 Approval authority.
Claims in Favor of the United States
536.129 Scope.
536.130 Claims exceeding $500,000.
536.131 Civil works activities.
536.132 Delegation of authority.
536.133 Demands.
Investigations and Reports
536.134 Procedure.
536.135 Reports.
536.136 Form of claim.
Subpart I--Claims Under Article 139, Uniform Code of Military Justice
536.137 Statutory authority.
536.138 Purpose.
536.139 Effect of disciplinary action.
536.140 Claims cognizable.
536.141 Claims not cognizable.
536.142 Limitations on assessments.
536.143 Procedure.
536.144 Reconsideration.
Subpart J--Claims Cognizable Under the Foreign Claims Act
General
536.145 Statutory authority.
536.146 Scope.
536.147 Claims cognizable under other subparts.
536.148 Claims provisions of treaties and agreements.
536.149 Presentation of claims.
536.150 Form of claims.
536.151 Claimants.
536.152 Claims payable.
536.153 Claims not payable.
536.154 Compensation.
536.155 Computation of amount.
Foreign Claims Communications
536.156 Appointment and functions.
536.157 Composition.
536.158 Qualification of members.
536.159 Delegaton of authority.
536.160 Advance payments.
Subpart K--Personnel Claims and Related Recovery Actions
General
536.161 Authority.
536.162 Delation of authority.
536.163 Scope.
536.164 Claimants.
536.165 Claims cognizable.
536.166 Claims not cognizable.
536.167 Time prescribed for filing.
536.168 Form of claim.
536.169 Presentation.
Evaluation, Adjudication, and Settlement of Claims
536.170 Policy.
536.171 Preliminary findings required.
536.172 Guides for computing amounts allowable.
536.173 Ownership or custody of property.
536.174 Determination of compensation.
536.175 Cognizable incidental expenses.
536.176 Property recovered.
536.177 Companion claims.
536.178 Emergency partial payments.
536.179 Personnel claims memorandum.
536.180 Reconsideration.
536.181 Judge advocate procedures responsibilities.
536.182 Finality of settlement.
Recovery From Third Party
536.183 Scope.
536.184 Duties and responsibilities.
536.185 Determination of liability.
536.186 Exclusions of liability.
536.187 Limits of liability.
536.188 Settlement procedures in recovery actions.
536.189 Payment to the claimant beyond the statutory limit.
536.190 Reimbursements to claimants and insurers from money
received.
536.191 Recovery action against a claimant.
536.192 Claims arising from packing and containerization contract
shipments.
536.193 Claims caused by stevedoring contractors.
536.194 Claims arising from intra-theater shipments.
536.195 Claims against ocean carriers.
536.196 Centralized recovery program procedures.
536.197 Offset actions.
536.198 Compromise or termination of recovery actions.
536.199 Terms and abbreviations.
536.200 Required references.
Subpart L--Nonappropriated Fund (NAF) Claims
Claims Against NAF Activities
536.201 General.
536.202 Claims by employees for losses incident to employment.
536.203 Claims generated by the acts or omissions of employees.
536.204 Persons generating liability.
536.205 Claims payable from appropriated funds.
536.206 Settlement.
536.207 Payment.
Claims Involving Persons Other Than NAF Employees
536.208 Claims arising from activities of nonappropriated fund
contractors.
536.209 Non-NAFI RIMP claims.
536.210 Claims cognizable.
536.211 Procedures.
536.212 Delegation of authority.
Subpart M--Affirmative Claims
General
536.213 Authority.
536.214 Recovery judge advocate/attorney.
536.215 Purpose and policy.
536.216 Delegation of authority.
536.217 Basic considerations.
536.218 Claims against certain prospective defendants.
Property Claims
536.219 General.
536.220 Repayment in kind.
536.221 Property damage predemand procedures.
Medical Care Claims
536.222 General.
536.223 Recovery rights under the FMCRA.
536.224 Identification of potential medical care recovery claims.
536.225 Medical care procedures following identification.
536.226 Relations with the injured party.
Recovering and Deposition on Claims
536.227 The MTF Third Party Recovery Program (TPCP).
536.228 Post demand procedures.
536.229 Settling affirmative claims.
536.230 Litigation.
536.231 Administrative matters.
Subpart N--Claims Office Administration
Records and File Equipment
536.232 Records.
536.233 Arrangement of claims files.
536.234 Disposition of claims files.
536.235 Retrieval of claims files.
536.236 Certified and registered mail.
536.237 Maintenance of claims files.
Monthly Claims Reporting System
536.238 General.
536.239 Reporting requirements.
536.240 Error reports.
536.241 Preparation.
Management of Claims Expenditure Allowance (CEA)
536.242 General.
536.243 CEA reporting requirements.
536.244 Solatia payment.
Appendix A to Part 536--References
Appendix B to Part 536--Glossary
Authority: 10 U.S.C. 939, 2733, 2734, 2734a, 2736, 2737, 3012,
4801 through 4804, and 4806; 28 U.S.C. 1346(b), 2401(b), 2402, 2671
through 2680; and 32 U.S.C. 715.
Subpart A--The Army Claims System
General
Sec. 536.1 Purpose.
This part prescribes the policies, procedures, and responsibilities
for investigating, processing, and settling claims against and in favor
of the United States under the authority conferred by certain statutes,
regulations, international and interdepartmental agreements, and
Department of Defense (DOD) directives. It is intended to ensure that
claims are properly investigated, adjudicated objectively and fairly,
and either paid or collection action initiated.
Sec. 536.2 References.
Required and related publications and prescribed and referenced
forms are listed in appendix A to this part.
Sec. 536.3 Explanation of abbreviations and terms.
Abbreviations and special terms used in this part are explained in
appendix B to this part.
Sec. 536.4 Types of claims.
(a) This part covers the following type of claims:
(1) Claims cognizable under the following claims settlement
authorizations:
(i) The Military Claims Act (MCA), 10 U.S.C. 2733. (See subpart C.)
(ii) The Federal Tort Claims Act (FTCA), 28 U.S.C. 2671-2680. (See
subpart D.)
(iii) The Act of 9 October 1962, 10 U.S.C. 2737. (See subpart E.)
(iv) The National Guard Claims Act (NGCA), 32 U.S.C. 715. (See
subpart F.)
(v) Title 10, United States Code (U.S.C.), sections 2734a and
2734b. (See subpart G.)
(vi) The Maritime Claims Settlement Act, 10 U.S.C. 4801-4804, 4806.
(See subpart H.)
(vii) Article 139, Uniform Code of Military Justice (UCMJ), 10
U.S.C. 939. (See subpart I.)
(viii) The Foreign Claims Act (FCA), 10 U.S.C. 2734. (See subpart
J.)
(ix) Title 31, U.S.C., section 3721. (See subpart K.)
(x) Federal Claims Collection Act, 31 U.S.C. 3711. (See subpart M.)
(xi) Federal Medical Care Recovery Act, 42 U.S.C. 2651-53. (See
subpart M.)
(2) Claims against nonappropriated fund activities and the risk
management program (RIMP). (See subpart L.)
(3) Claims under industrial security regulations (DOD Directive
(DODD) 5220.6) and claims by the U.S. Postal Service for losses or
shortages in postal accounts caused by unbonded Army personnel (39
U.S.C. 411 and DOD Manual 4525.6-M). (See DA Pam. 27-162, chap. 5, sec.
XI.)
(b) DA Pam. 27-162, chapter 8 lists other laws and regulations
under which claims not covered by this part may be cognizable.
(c) Where a conflict exists between a general provision of this
part and a specific provision found in subparts implementing a specific
claims statute, the specific provision will control.
Sec. 536.5 Command and organizational relationships.
(a) The Secretary of the Army has delegated authority to The Judge
Advocate General (TJAG) to assign areas of responsibility and designate
functional responsibility for claims purposes. TJAG has delegated
authority to the Commander, U.S. Army Claims Service (USARCS), to carry
out responsibilities assigned in Sec. 536.7(b).
(b) USARCS, a field operating agency of the Office of TJAG, is the
agency through which the Secretary of the Army and TJAG discharge their
responsibilities for the administrative settlement of claims worldwide.
(See AR 10-72.) The proper mailing address of USARCS is Commander, U.S.
Army Claims Service, Office of The Judge Advocate General, Fort George
G. Meade, Maryland 20755-5360.
(c) Command claims services.
(1) Command claims services exercise general supervisory authority
over claims matters arising within their assigned areas of operation.
Command claims services will provide--
(i) Effective control and supervision of the investigation of
incidents occurring within the geographic area of the command,
occurring in other areas for which the command is assigned claims
responsibility or occurring in the course of the command's operations.
(ii) Services for the processing and settlement of claims for and
against the United States.
(2) The commander of a major overseas command or other commands
that include areas outside the United States, its territories, and
possessions, and report directly to the Department of the Army (DA) may
be designated by TJAG to establish, a command claims service.
(3) A command claims service may be a separate organization with a
designated commander or chief. If it is part of the Office of the Staff
Judge Advocate (SJA) of the command, the SJA will also be the chief of
the command claims service.
(d) The following may be designated as area claims offices:
(1) An office under the supervision of the senior judge advocate
(JA) of each command or organization so designated by the Commander,
USARCS. The senior JA is the head of the area claims office.
(2) An office under the supervision of the senior JA of each
command in the area of operations of a command claims service so
designated by the chief of that service after coordination with the
Commander, USARCS (see Sec. 536.7(c)(2)). The senior JA in the office
is the head of the area claims office.
(3) The legal office of each engineer district within the United
States and such other engineer commands or agencies as designated by
the Commander, USARCS, with concurrence of the Chief of Engineers
(COE), for all claims generated by such districts, commands, or
agencies. The district counsel or the attorney in charge of the legal
office of the command or agency is the head of the area claims office.
(e) Claims processing offices are normally small legal offices or
subordinate elements of area claims offices, which are designated by
the Commander, USARCS; a command claims service; or an area claims
office. These offices are established for the investigation of all
potential and actual claims arising within their jurisdiction, either
on an area basis or on a command or agency basis. A claims officer (see
appendix B to this part) will not be a claims processing office; his or
her role is limited to claims investigation. There are four types of
claims processing offices as follows (Sec. 536.8(c)):
(1) Claims processing offices without approval authority.
(2) Claims processing offices with approval authority.
(3) Medical claims processing offices.
(4) Special claims processing offices.
(f) The chief of a command claims service and the head of an area
claims office or a claims processing office with approval authority may
delegate, in writing, any portion or all of his or her monetary
approval authority to a subordinate JA or claims attorney in his or her
service or office. The authority to act upon appeals or requests for
reconsideration, to disapprove claims (including disapprovals based on
substantial fraud), or to make final offers will not be delegated.
Copies of delegations within claims processing offices will be provided
to the area claims office and, if so directed, to command claims
services.
Sec. 536.6 Designation of claims attorneys.
(a) The Commander, USARCS, the senior JA of a command having a
command claims service or the Commander, USAREUR Claims Service, the
head of an area claims office, or the Chief Counsel, COE, may designate
a qualified attorney other than a Judge Advocate as a claims attorney.
The head of an area claims office may designate a claims attorney to
act as a claims processing office with approval authority.
(b) To be eligible as a claims attorney, an individual must be a
civilian employee of the DA or DOD, in grade GS-11 or above; a member
of the bar of a State, the District of Columbia, or a jurisdiction
where U.S. Federal law applies; and be performing primary duties as a
legal adviser. These requirements can be waived by the Commander,
USARCS, in appropriate cases.
Responsibilities, Operations, Policies, and Guidance
Sec. 536.7 Responsibilities.
(a) The Judge Advocate General. TJAG has Army Staff responsibility
for administrative settlement of claims worldwide by and against the
U.S. Government, generated by employees of the U.S. Army and, DOD
components other than the Departments of the Air Force and Navy (see
DOD Directive 5515.9). Certain claims responsibilities to TJAG are
exercised by The Assistant Judge Advocate General (TAJAG), as set forth
in this regulation.
(b) Commander, USARCS. Commander, USARCS will--
(1) Supervise and inspect U.S. Army claims activities worldwide.
(2) Formulate and implement claims policies and uniform standards
for claims office operations.
(3) Supervise the investigation, processing, and settlement of
claims against and on behalf of the United States under the statutes
and regulations listed in Sec. 536.4.
(4) Designate area claims offices, claims processing offices, and
claims attorneys within DA and DOD components other than the
Departments of the Navy and Air Force.
(5) Designate Continental United States (CONUS) geographic areas of
claims responsibility.
(6) Recommend action to be taken by the Secretary of the Army or
the Attorney General of the United States as appropriate, regarding
claims in excess of $100,000 under the FCA, the MCA, and the NGCA and
other claims that have been appealed to the Secretary of the Army, or
are in excess of $25,000 under the FTCA.
(7) Operate the ``receiving State office'' for claims cognizable
under Article VIII of the North Atlantic Treaty Organization (NATO)
Status of Forces Agreement (SOFA), as implemented by 10 U.S.C. 2743b
(Subpart G).
(8) Settle claims of the U.S. Postal Service for reimbursement
under 39 U.S.C. 411 (see DOD Manual 4525.6-M) and of DOD under
industrial security regulations (DODD 5220.6).
(9) Settle claims against carriers, warehouse firms, insurers, and
other third parties for loss of, or damage to, personal property of
service members incurred while in storage or in transit at Government
expense (subpart K).
(10) Formulate and recommend proposed legislation for Congressional
enactment of new statutes and the amendment of existing statutes
considered essential for orderly and expeditious administrative
settlement of noncontractual claims.
(11) Perform post settlement review of claims.
(12) Prepare, justify, and defend estimates of budgetary
requirements and administer the Army claims budget.
(13) Maintain permanent records of claims for which TJAG is
responsible.
(14) Assist in developing disaster and maneuver claims plans
designed to implement responsibilities set forth in paragraphs (d)(11)
of this section and Sec. 536.15(c).
(15) Develop and maintain plans for a disaster or civil disturbance
for geographic areas not under the jurisdiction of an area claims
authority and in which the Army has single service responsibility or in
which the Army is likely to be the predominant Armed Force.
(16) Take initial action on claims arising in emergency situations
as outlined in Sec. 536.15(c).
(17) Provide assistance as available or take appropriate action to
ensure that command claims services and area claims offices are
carrying out their responsibilities as set forth in paragraphs (c) and
(d) of this section.
(18) Serve as proponent for Claims Legal Automated Information
Management System (CLAIMS) and provide standard automated claims data
management programs for use worldwide.
(19) Ensure proper training of claims personnel.
(20) Coordinate claims activities with the Air Force, Navy, Marine
Corps, and other DOD agencies to ensure a consistent DOD claims
program.
(21) Supervise the investigation and processing of medical
malpractice claims arising in Army medical centers within the United
States. Provide medical claims JAs, medical claims attorneys and
medical claims investigators assigned to such medical centers with
technical guidance and direction on such claims.
(22) Coordinate support with the Office of The Surgeon General on
matters relating to medical malpractice claims.
(23) Issue an accounting classification to all properly designated
claims settlement and approval authorities.
(24) Perform the investigation, processing, and settlement of
claims arising in areas not within the areas of operation of command
claims services unless specifically delegated to a SJA of a command or
designee.
(c) Chiefs of command claims services. Chiefs of command claims
services will--
(1) Exercise claims settlement authority as specified in this part,
to include appellate authority where so delegated.
(2) Designate area claims offices and grant claims settlement
authority thereto. A grant of such authority will not be effective
until coordinated with the Commander, USARCS and an office code
assigned. However, the chief of a command claims service may
redesignate a claims processing office already having an assigned
office code as an area claims office without coordination with the
Commander, USARCS. The Commander, USARCS will be informed of such a
designation.
(3) Designate claims processing offices and grant claims approval
authority thereto. Only claims processing offices staffed with a JA or
claims attorney may be granted approval authority. A grant of such
authority will not be effective until coordinated with the Commander,
USARCS and an office code assigned.
(4) Train claims personnel and monitor their activities.
(5) Implement pertinent claims policies.
(6) Prepare and publish command claims directives.
(7) Administer the command claims expenditure allowance, providing
necessary data, estimates, and reports to USARCS.
(8) Perform the responsibilities of an area claims office (see
paragraph (d) of this section), as applicable.
(9) Serve as the U.S. sending State office, if so designated, when
operating in an area covered by a status of forces agreement.
(d) Heads of area claims offices. Heads of area claims offices
will--
(1) Ensure that claims in their area of responsibility are promptly
investigated according to this part.
(2) Ensure that each organization or activity (for example, U.S.
Army Reserve (USAR) or Army National Guard (ARNG) unit, Reserve
Officers' Training Corps (ROTC) detachment, recruiting company or
station, and DOD agency) within the area appoints a claims officer to
investigate claims incidents not requiring investigation by a JA
(Sec. 536.16(c)(2)) and ensure that this officer is adequately trained.
(3) Act as a claims settlement authority on claims within the
monetary jurisdictions set forth in this regulation and forward claims
beyond such jurisdictions to the Commander, USARCS or to the chief of a
command claims service, as appropriate, for action.
(4) Designate claims processing offices and request the Commander,
USARCS or the chief of a command claims service, as appropriate, to
grant claims approval authority to a claims processing office with
respect to claims within that office's jurisdiction, as specified under
paragraphs (b)(4) and (c)(2), of this section.
(5) Prepare and publish a claims directive concerning the
investigation and processing of claims matters for the guidance of all
claims processing offices within their area.
(6) Implement claims policies and guidance furnished by TAJAG or
Commander, USARCS through policy directives or the Claims Manual and
establish and implement necessary claims policies and procedures not
contrary to the foregoing.
(7) Ensure that there are an adequate number of qualified JAs or
claims attorneys, claims examiners, claims adjudicators and claims
clerks in all claims offices within their area to take prompt action on
claims and that they are adequately trained.
(8) Budget and fund for claims investigations and activities to
include per diem and transportation of claims personnel, claimants and
witnesses, independent medical examinations, appraisals, independent
expert opinions, long distance phone calls, recording and photographic
equipment, use of express mail or couriers, and other necessary
expenses.
(9) Within continental United States (CONUS), procure and
disseminate adequate legal publications on local law and verdicts
relating to tort claims within the area of jurisdiction.
(10) Notify Commander, USARCS of all claims and claims incidents as
required by Sec. 536.17 and Sec. 536.21(b)(2).
(11) Develop and maintain written plans for a disaster or civil
disturbance. The plan should include a requirement for an advance party
to assess the need for the presence of a special claims processing
office. The plans may be internal Office of the SJA plans or an annex
to an installation/organizational plan. (See also
Sec. 536.8(c)(4)(iii).)
(12) Implement the Army's Article 139 claims program. (See
Sec. 536.142.)
(e) Heads of claims processing offices. Heads of claims processing
offices will--
(1) Investigate all potential and actual claims arising within its
assigned jurisdiction, either on an area basis or on a command or
agency basis. Only a claims processing office with approval authority
can adjudicate and pay all presented claims within its monetary
jurisdiction.
(2) Ensure that units and organizations within its jurisdiction
have appointed claims officers for the investigation of claims not
requiring investigation by a JA. (See Sec. 536.16.)
(3) Budget and fund for claims investigations and activities to
include per diem and transportation of claims personnel, claimants and
witnesses, independent medical examinations, appraisals, independent
expert opinions, long distance phone calls, recording and photographic
equipment, use of express mail or couriers, and other necessary
expenses.
(4) Within CONUS, procure and maintain legal publications on local
law and verdicts relating to tort claims within their jurisdiction.
(5) Notify the Commander, USARCS of all claims and claims incidents
as required by Sec. 536.17 and Sec. 536.21(b)(2).
(6) Implement the Army's Article 139 claims program. (See
Sec. 536.142.)
(f) Chief of Engineers. The COE, through the Chief Counsel, will--
(1) Provide general supervision of the claims activities of
engineer area claims offices.
(2) Ensure that each engineer area claims office has a claims
attorney designated by the Commander, USARCS, as prescribed in
Sec. 536.6.
(3) Ensure the training of claims personnel and the continuing
inspection of their activities.
(4) Provide for implementation of pertinent claims policies.
(5) Provide for budgeting in accordance with existing Army
regulations and command directives for temporary duty (TDY), long
distance phone calls, recording equipment, cameras, and other expenses
for investigation and processing of claims.
(6) Take action to procure and have available adequate legal
publications on local law relating to claims arising within the United
States, its territories, and possessions.
(g) Commanding General, U.S. Army Health Services Command (CG,
HSC). The CG, HSC will, through his SJA, ensure that adequate and
qualified medical claims JAs and medical claims investigators are
assigned for the investigation and processing of medical malpractice
claims arising at Army medical centers under his or her control. In
accordance with an agreement between TJAG and the Surgeon General, such
personnel will be used primarily in investigating and processing of
medical malpractice claims and provided with the necessary funding and
research materials to carry out this function.
(h) Chief, National Guard Bureau (NGB). The Chief, NGB will--
(1) Ensure that a point of contact for claims matters is designated
in each adjutant general office.
(2) Provide the name, address, and telephone number of the point of
contact to the Commander, USARCS.
(3) Designate claims officers to investigate claims generated by
ARNG personnel and forward investigations to the active Army area
claims office having jurisdiction over the area in which the claims
incident occurred.
(4) Publish a regulation to carry out these responsibilities.
(i) Commanders of major Army commands (MACOMs). Commanders of
MACOMs through their SJAs will--
(1) Assist USARCS in monitoring area claims offices and claims
processing offices under their respective command control for
compliance with responsibilities assigned in paragraphs (d) and (e) of
this section.
(2) Assist claims personnel in obtaining qualified expert and
technical advice from units and organizations under their respective
command control on a nonreimbursable basis except that the requesting
office may be required to provide TDY funding.
(3) Assist TJAG, through the Commander, USARCS, in the
implementation of the functions set forth in paragraph (b) of this
section.
(4) Coordinate with the area claims office within whose
jurisdiction a maneuver will occur to ensure the prompt investigation
and settlement of claims arising from the maneuver.
Sec. 536.8 Operations of claims components.
(a) Command claims services. A command claims service will be
supervised by the SJA of the command. If the command claims service is
a separate organization, the command SJA will designate a JA as the
chief of the service. Otherwise, the SJA will be the chief of the
service. Adequate, qualified claims personnel will be assigned to
ensure that claims are promptly investigated and acted upon. With the
concurrence of the service may designate area claims offices within its
area of operations to carry out claims responsibilities within
specified geographic areas.
(b) Area claims offices.
(1) The area claims office is the principal office for the
investigation and adjudication or settlement of claims, and will be
staffed with qualified legal personnel under the supervision of the SJA
or command JA or Corps of Engineer district or command legal counsel.
(2) The full-time responsibility for claims investigations and
processing in a portion of the area or for claims related to the
activities of a unit or organization within the area may be delegated
to another command, unit, or activity by the establishment of a claims
processing office at the command, unit or authority. (See
Sec. 536.7(d)(4) and (e).) Normally, all claims processing offices will
operate under the supervision of the area claims office in whose area
the claims processing office is located. Where a proposed claims
processing office is not under the command of the parent organization
of the area claims office, this designation may be effected by a
support agreement or memorandum of understanding between the affected
commands.
(3) Normally, claims that cannot be settled by an engineer area
claims office will be forwarded directly to the Commander, USARCS with
notice to the Chief Counsel, COE of such referral. However, the Chief
Counsel, as part of his or her responsibility for litigation of suits
involving civil works and military construction activities, may require
that an engineer area claims office forward claims through engineer
channels provided that such requirement does not preclude final action
by Commander, USARCS within the time limitations set forth in subparts
D and H.
(c) Claims processing offices. For a subpart K, if the adjudicated
amount of a claim is in excess of the monetary jurisdiction of the head
of the claims processing authority, the claim will be approved and paid
up to the delegated authority of that office and immediately forwarded
to the next higher claims authority for additional payment. (See
Sec. 536.161(e)).
(1) Claims processing offices without approval authority. A claims
processing office that has not been granted claims approval authority
will provide for the investigation of all potential and actual claims
arising within its assigned jurisdiction, either on an area basis or on
a command or agency basis. Once the investigation is completed, the
claims file will be forwarded to the appropriate area claims office for
action. Alternatively, an area claims office may direct that a claims
investigation made by a claims processing office without approval
authority be forwarded to another claims processing office within the
area that has approval authority if the claim is within the
jurisdiction of the latter.
(2) Claims processing office with approval authority. A claims
processing office that has been granted approval authority must provide
for the investigation of all potential and actual claims arising within
its assigned jurisdiction, either on an area basis or on a command or
agency basis, and for the adjudication and payment of all presented
claims within its monetary jurisdiction. If the estimated value of a
claim, after investigation, is beyond the payment authority of the
claims processing office or if disapproval is the appropriate action,
the claim file will be forwarded to the area claims office unless
otherwise specified in this part, or forwarded to USARCS or the command
claims service, as appropriate, if directed by such service.
(3) Medical claims processing offices. The medical claims JAs at
Army medical centers, other than Fitzsimons Army Medical Center and
Walter Reed Army Medical Center, may be designated by the SJA/head of
area claims office for the installation on which the center is located
as claims processing offices with approval authority for medical
malpractice claims only. Claims beyond their approval authority will be
investigated and forwarded to the Commander, USARCS. The SJA, Health
Services Command, Quality Assurance Division, OTSG (DASG-PSQ) and the
Consultation Case Review Branch, Clinical Policy and Consultants
Division, Office of the Surgeon General (CCRB), will be advised by
USARCS of all referrals, provided a copy of all claims, and informed of
their disposition.
(4) Special claims processing offices.
(i) The Commander, USARCS, the chief of a command claims service or
the head of an area claims office may designate special claims
processing offices within his or her command for specific, short-term
purposes (for example, maneuvers, civil disturbances, and emergencies).
These special claims processing offices may be delegated approval
authority necessary to effect the purpose of their creation, but in no
case will this delegation exceed the approval authority maximums set
forth in other subparts of this part for regular claims processing
offices. All claims will be processed under the claims expenditure
allowance and claims command and office code of the authority who
established the office or a code assigned by USARCS. The existence of
any special claims processing office must be reported to the Commander,
USARCS.
(ii) A special claims processing office is the proper organization
to process and approve, as appropriate, maneuver damage claims, except
where a foreign government is responsible for adjudication under an
international agreement (see subpart G). Personnel from the maneuvering
command should be used in the investigation of claims and, at the
discretion of the area claims office, may be assigned to the special
claims processing office. Claims filed after the termination of the
maneuver will be processed by the area claims office. Claims arising
within the jurisdiction of other area claims offices, while units are
traveling to or from the maneuver, will be investigated by the special
claims processing office and forwarded for action to the area claims
office in whose area the claims arose. Claims for damage to real or
personal property arising on private land being used under a permit may
be paid from funds specifically budgeted by the maneuver for such
purposes in accordance with AR 405-15.
(iii) A special claims processing office provided for a disaster or
civil disturbance should include a claims approving authority with
adequate investigatory, administrative, and logistical support, to
include damage assessment and finance and accounting support. It should
not be dispatched prior to notification of Commander, USARCS. The
concurrence of Commander, USARCS must be obtained prior to the payment
of the first claim.
(5) Claims processing offices discussed in paragraphs (c)(2)
through (4) of this section must be supervised by an assigned JA or
claims attorney in order to exercise delegated approval authority.
Sec. 536.9 Claims policies.
(a) General. (1) Claims investigation and adjudication should be
accomplished at the lowest level possible, that is, by the claims
processing office or area claims office with monetary authority over
the estimated total value of all claims arising from the incident in
question. The expeditious investigation and settlement of claims is
essential to the successful fulfillment of the Army's responsibilities
under the claims statutes implemented by this part.
(2) Where technical errors exist in the filing of a claim or in its
format, claimants should be advised of such errors and the need for
corrective action. If the errors concern a jurisdictional matter,
advice should be given expeditiously and a record should be maintained.
The advice should include a warning that the error must be corrected
prior to the expiration of the statute of limitations.
(b) Investigative environment. In the investigation of claims,
every effort should be made to create a cooperative environment
engendering the free exchange of information and evidence. The goal of
obtaining sufficient information to make an objective and fair analysis
should be paramount. Personal contact with claimants or their
representatives is frequently essential to clarify the issues both
during investigation and prior to adjudication. Where settlement is not
feasible, issues of disagreement or dispute should be clearly
identified and spelled out to facilitate the resolution of any
reconsideration, appeal, or in appropriate cases, litigation.
(c) Claims directives and plans. (1) Two copies of command claims
directives will be furnished to the Commander, USARCS. Area claims
office directives will be distributed to all DA and DOD commands,
installations, and activities within the area of responsibility with an
information copy to Commander, USARCS.
(2) One copy of all area claims offices' disaster/civil disturbance
plan or annex will be furnished to the Commander, USARCS.
(d) Interpretations. The Commander, USARCS will publish written
interpretations of the provisions of this part and establish and
publish policy as to those matters that are within agency discretion.
Interpretations and policies that reference this provision will have
the same force and effect as this part.
(e) Exceptions. If it is considered to be in the best interest of
the Government, the Commander, USARCS may grant authority to deviate
from the specific requirements contained in this part in a particular
instance except as to matters that are based on statutes, treaties and
international agreements, executive orders, controlling directives of
the Attorney General or Comptroller General, or otherwise have the
force and effect of law.
(f) Guidance. The Commander, USARCS may publish bulletins, manuals,
handbooks, notes, and a DA Pamphlet to provide claims authorities with
guidance on administrative and procedural matters related to the
implementation of this part. These will be binding on all Army claims
personnel.
(g) Communication. All claims personnel are authorized to
communicate directly with personnel of the USARCS for guidance on
matters of policy or relating to the implementation of this part.
(h) Private relief bills. There is no established procedure under
which DA sponsors private relief legislation; this is a matter between
an individual and his or her congressman. Claims personnel will remain
neutral in private relief matters. No statement should be made that
purports to reflect a DA position on a private relief bill.
Sec. 536.10 Guidance concerning disclosure of information and
assistance.
(a) Conflict of interest. Government personnel are forbidden to
represent any claimant or to receive any payment or gratuity for
services rendered. They may not accept any share or interest in a claim
or assist in its presentation, under penalty of Federal criminal law
(18 U.S.C. 203, and 205).
(b) Release of information. (1) Government personnel are prohibited
from disclosing information that may be the basis of a claim or any
evidence of record in any claims matter except as authorized by
statutory or regulatory authority. Certain documents which would
normally be privileged or exempt from release, such as unclassified
statements, documents containing opinions, conclusions, or findings,
may be released to a claimant or his or her attorney, wherever release
may help settle a claim or avoid unnecessary litigation, unless such
release is barred by statute.
(2) All requests for records and information made pursuant to the
Freedom of Information Act (FOIA) or the Privacy Act (PA) will be
processed in accordance with the procedures set forth in AR 25-55 or AR
340-21. Requests submitted by a claimant or his or her attorney, which
cite only the FOIA, will be processed under the time limits of the FOIA
and the exceptions and fees of the PA and FOIA, as required by AR 25-
55, paragraph 1-512c. Except for medical quality assurance records
exempt from disclosure by 10 U.S.C. records protected by the Privacy
Act of 1974, records within a category for which withholding of the
record is discretionary (AR 25-55, paragraph 3-101) may be released to
a claimant or his or her attorney, if no legitimate purpose exists for
withholding it.
(3) When it is determined that exempt information should not be
released, the request will be forwarded to USARCS. For requests
processed only under the FOIA, the commander, USARCS, may deny release
of the records, acting on behalf of TJAG, the initial denial authority.
The commander, USARCS will forward to TJAG all requests processed under
the FOIA and PA. TJAG is the initial denial authority for PA requests
(AR 340-21, paragraph 1-7i).
(c) Claims assistance. The foregoing prohibitions do not apply to
information and assistance provided in the performance of official
duty. Any person who indicates a desire to file a claim against the
United States cognizable under one of the subparts of this part will be
instructed concerning the procedure to follow. The claimant will be
furnished claim forms and, when necessary, will be assisted in
completing claim forms and assembling evidence. He or she will not be
assisted in determining what amount to claim. In the vicinity of a
field exercise, maneuver, or disaster, information may be disseminated
concerning the right to present claims, the procedure to be followed,
and the names and location of claims officers and engineer repair
teams. When the government of a foreign country in which U.S. Armed
Forces are stationed has assumed responsibility for the settlement of
certain claims against the United States, officials of that country
will be furnished pertinent information and evidence so far as security
considerations permit.
Sec. 536.11 Single-service claims responsibility (DODD 5515.8).
(a) Statutes and agreements. DOD has assigned single-service
responsibility for the settlement of claims in certain countries under
the following statutes and agreements:
(1) FCA (10 U.S.C. 2734); DODD 5515.3, Settlement of Claims under
10 U.S.C. 2733 and 2734.
(2) MCA (10 U.S.C. 2733); DODD 5515.3, Settlement of Claims under
10 U.S.C. 2733 and 2734.
(3) 10 U.S.C. 2734a and 2734b, pro rata cost-sharing of claims
pursuant to international agreements.
(4) NATO SOFA (4 UST 1792, TIAS 2846) and other similar agreements.
(5) Act of September 25, 1962 (42 U.S.C. 2651-2653), Claims for
Reimbursement for Medical Care Furnished by the United States.
(6) 10 U.S.C. 2737, claims not cognizable under any other provision
of law.
(7) The Federal Claims Collection Act (31 U.S.C. 3711-3719), as
implemented by DODD 7045.13; the Act of June 10, 1921 (31 U.S.C. 71),
claims and demands by the Government of the United States.
(8) 10 U.S.C. 2736, Advance Payments.
(b) Specified foreign countries. Responsibility for the settlement
of claims cognizable under the laws listed in paragraph (a) of this
section in the following countries has been assigned to military
departments as follows:
(1) Department of the Army: Austria, Belgium, El Salvador, France,
Federal Republic of Germany, Grenada, Honduras, and Korea, the Marshall
Islands and Switzerland.
(2) Department of the Navy: Bahrain, Iceland, Israel, Italy,
Portugal, and Tunisia.
(3) Department of the Air Force: Australia, Azores, Canada, Cyprus,
Denmark, Egypt, Greece, India, Israel, Japan, Luxembourg, Morocco,
Nepal, the Netherlands, Norway, Oman, Pakistan, Saudi Arabia, Spain,
Turkey, United Kingdom.
(4) Except when they arise in countries for which single-service
responsibility is assigned in paragraphs (b)(1), (2), and (3) of this
section, single-service claims responsibility for claims involving, or
generated by the U.S. Central Command or units assigned or attached
thereto, is assigned to the Department of the Air Force. The addresses
of United States sending State offices and single-service offices are
contained in DA Pam 27-162, figure P7-1.
(c) When claims responsibility has not been assigned. On an interim
basis prior to receiving confirmation and approval from the appropriate
office in DOD, the appropriate unified commander may, when necessary to
implement contingency plans, assign single-service responsibility for
processing claims in countries where such assignment has not already
been made.
Sec. 536.12 Cross-servicing of claims (DODD 5515.3).
(a) Where another military department has single-service claims
responsibility. Claims, claims by and against the United States
resulting from Army activities or caused by members or employees of the
DA in a country where another department has been assigned single-
service claims responsibility will be investigated by the Army and
referred to that department for settlement.
(b) Where claims responsibility has not been assigned. Claims,
claims cognizable under the FCA or the MCA generated by another
military department in a foreign country where single-service claims
responsibility has not been assigned may, upon request of the
department concerned, be settled by the Army. Conversely, Army claims
may, in appropriate cases, be referred to another department for
settlement.
(c) Claims generated by the Coast Guard. Claims resulting from
activities, or generated by members or employees, of the Coast Guard
while operating as a service of the Department of Transportation may,
upon request, be settled under this part by a foreign claims commission
appointed as authorized herein, but will be paid from appropriations of
the Coast Guard (10 U.S.C. 2734(g) and 2734a(c)).
Subpart B--Investigation and Processing of Claims Investigation
Sec. 536.13 Importance of the claims investigation.
Because evidence developed during an investigation provides the
basis for every subsequent step in the administrative settlement of a
claim or the defense of a lawsuit, a prompt and thorough investigation
will be conducted on all potential and actual claims for or against the
government. Adverse as well as favorable information must be collected
and recorded and the legal and factual findings of the claims JA/
attorney must be preserved in the format specified in Sec. 536.22.
Sec. 536.14 Reasons for investigation.
(a) The investigation is performed to ascertain the facts of an
incident. Which facts are relevant will often depend on the law and
regulations applicable to the conduct of the parties involved, but as
general guidance, the investigation should develop definitive answers
to such questions as ``When,'' ``Where,'' ``Who,'' ``What,'' and
``How.'' Generally, the time, place, persons, and circumstances
involved in an incident may be established by a simple report, but the
cause and the resulting damage may require extensive effort to obtain
all the pertinent facts.
(b) The object of the investigation is to gather, with the least
possible delay, the best available evidence without accumulating
excessive evidence concerning any particular fact. The claimant is
often an excellent source of such information and should be contacted
early in the investigation. The investigative file should include
medical records, witness interviews, photographs, and expert opinions.
Sec. 536.15 Immediate investigation requirement.
(a) Immediate investigation of an incident is required when--
(1) Property other than Government property is damaged, lost, or
destroyed. Damage resulting directly or indirectly from combat need
only be investigated to the extent necessary to confirm that the combat
exclusion of the appropriate statute is applicable.
(2) Government property is damaged, lost, or destroyed under
circumstances that may give rise to a claim in favor of the Government
under subpart N.
(3) The incident results in injury to or death of, any civilian
other than to a civilian of the Army while in performance of duty an
employee of the United States or its instrumentalities while acting
within the scope of their employment. For deaths or injuries resulting
directly or indirectly from combat activities of our forces, the
investigation merely has to develop sufficient information to verify
that the combat exception of the appropriate claims statute is
applicable.
(4) A claim is made.
(5) Investigation is requested by another armed service of the
United States.
(6) A member of the uniformed services, a dependent, or any other
person who is eligible for medical care at Army medical treatment
facilities is injured under circumstances that permit recovery of the
cost of hospital and medical care under subpart N.
(7) An incident occurs in CONUS involving foreign nationals who are
members of a foreign military force or civilian components of parties
to the Agreement Regarding the Status of Forces of Parties to the North
Atlantic Treaty, resulting in personal injury, death, or property
damage (subpart G).
(8) A patient, other than potential claimants excluded by
Sec. 536.51(j), Sec. 536.75(r) through (t) and Sec. 536.95, while under
treatment by the Army Medical Service, dies, is injured, or otherwise
disabled physically, mentally, or emotionally due to--
(i) A medical or surgical accident; or
(ii) Care that does not meet standards for non-Government
facilities similar to the Army facility providing the care; or
(iii) An incident that could give rise to a claim against the
United States under this part; or
(9) Competent authority so directs.
(b) Investigation by a claims officer is required when the
situation or consequences described in paragraphs (a) (1) through (4),
and (a)(9) of this section arise from activities of the ARNG or its
personnel.
(c) Claims arising out of situations that may be expected to
generate a substantial number of claims in a short period of time and
are properly cognizable for settlement under this regulation (such as
maneuvers or other special operations, emergencies, civil disturbances,
aircraft and missile accidents, or disasters) will be investigated in
accordance with procedures set forth herein by the claims office
responsible for the area in which the incident occurred. No claim
arising out of such an emergency situation will be paid until the
concurrence of the Commander, USARCS has been obtained. (See
Sec. 536.8(c)(4)(iii)).
(d) Where an accident occurs that could only result in a claim
against the United States that is not payable because of the incident
to service rule, for example, barred by the Feres Doctrine, or the
Federal Employees' Compensation Act (FECA), or the Longshoremen's and
Harborworkers Compensation Act (LHWCA), the investigation may be
limited to that necessary to make such a determination. However, claims
officials will ensure that the appropriate commander or organization
safety office is aware of the incident so that measures to avoid a
recurrence can be pursued.
Sec. 536.16 Unit claims officers.
(a) Commanders' responsibility. Commanders and heads of DA and DOD
components whose personnel, equipment or operations are involved in an
incident giving rise to a potential or actual claim for or against the
government (see Sec. 536.15(a)), will appoint a commissioned officer, a
warrant officer or a qualified civilian employee to conduct an initial
factual investigation of the incident.
(1) Installation commanders, brigade commanders, commanders of
separate battalions, state ARNG Adjutant Generals and other commanders
whose operations may generate a significant number of claims should
consider appointing a claims officer on standing orders to facilitate
training and coordination with the claims JA/attorney supporting the
unit.
(2) Senior noncommissioned officers (E6 thru E9) may be appointed
as assistant claims officers to perform duties under the supervision of
a claims officer.
(3) Claims officer appointment orders should designate the claims
JA/attorney who supports the unit as the claims officer's legal
advisor. The orders will direct the claims officer to seek guidance
from the claims JA/attorney at the outset of the investigation and
before completion of the investigation whenever the potential value of
the claim is in excess of $15,000 or an actual claim in excess of that
amount has been filed.
(4) The scope and duration of the investigation will depend on the
severity and complexity of the incident and may range from merely
obtaining investigation reports already prepared by police and other
investigators to a formal investigation by a board of officers under
the provisions of chapter 5, AR 15-6. In addition to the provisions of
this chapter, claims officers will follow the guidance in Chapter 5, DA
PAM 27-162 and the advice of the claims JA/attorney listed as their
advisor.
(5) Unit claims officers, in addition to making a report of
investigation as specified in Sec. 536.16(b), will account for and
preserve all available evidence for use in future litigation. Evidence
will be retained until released by the claims JA/attorney. Therefore,
the claims officer will consult with the claims JA/attorney before
disposal, destruction or repair of damaged property or other evidence.
The claims officer will also act as the claims JA/attorney's point of
contact for support and assistance from the unit.
(6) Claims officers must coordinate their work with concurrent
criminal and safety investigations, which have priority within DA for
access to accident sites and witnesses (see paragraph 1-4d, AR 15-6 and
paragraphs 4-8a(2), 5-1a(1) and 5-4 AR 385-40). To the greatest extent
possible claims officers should take advantage of the work already done
on these other investigations (see Sec. 536.19 of this part). Although
there are limits on the information safety personnel can release to
claims officers, some of the information in safety reports can be
released (see paragraphs 1-10 and 5-6, AR 385-40).
(b) Report of claims officer. (1) Format. The claims officer will
prepare a written report of investigation on DA Form 1208 (Report of
Claims Officer), except that no recommendation on disposition of
prospective claims will be entered in block 11. Where a formal
investigation is conducted in accordance with the procedures in chapter
5, AR 15-6, the report may be submitted on DA Form 1574 (Report of
Proceedings by Investigating Officer/Board of Officers). If the claims
officer does not feel either form is appropriate, the claims JA/
attorney advising the claims officer will be consulted for guidance.
(2) Processing. The report should normally be completed and
submitted to the appointing authority within 60 days of the accident/
incident. If a final report will not be completed within that time one
or more interim reports may be required by the commander or claims JA/
attorney. The appointing authority will either return the report for
further investigation or, if satisfied that it is as complete as
possible given the information available, forward one copy of the
report to the appropriate claims office with or without comment.
(3) Content. The report will contain findings of fact concerning
the incident, to include the circumstances leading to the incident
(e.g. training and experience of Army personnel involved) and the
resulting property damage and/or injuries. These findings should be
based on the evidence reasonably available within the time available
for completion of the report. See chapter 5, DA PAM 27-162 for guidance
on the information needed in the most common types of claims incidents.
(4) Limits on findings. The unit claims officers will not make
findings concerning questions of liability or attempt to assess a
dollar value on personal injuries. The findings should merely state the
facts (who, what, where, when, and how). While a clear and complete
statement of the facts will often make it clear who is responsible for
the damage or injury, the determination of legal liability and the
appropriate amount of compensation is the responsibility of the claims
JA/attorney or the courts.
(5) Use and release of information. The report of this initial
investigation may be used in conjunction with any administrative or
legal action within DOD, such as line of duty investigations, reports
of surveys, disciplinary actions under the Uniform Code of Military
Justice or civilian personnel regulations, contract actions, or the
collateral investigation of an Army accident required by paragraph 1-
7c, AR 385-40. It may also be used by the commander or the unit's
safety officers as the basis for their safety report (DA Forms 285 and
285-1) when a centralized accident investigation or separate safety
investigation is not conducted. It may be released to the public, to
law enforcement personnel, state and federal regulatory agencies and
other non-DOD entities subject to the provisions of the Freedom of
Information Act and the Privacy Act.
(6) Disposition of reports. The claims processing office or area
claims office having jurisdiction over the type of claim involved will
retain the claims officer's report until a claim is received or until
six months after the time for filing a claim is past. If no claim is
filed within the statutory limit, the report will be disposed of as an
organizational record in accordance with AR 25-400-2.
(c) If an incident occurs, or a claim is filed, in a foreign
country where no appropriate commander is located, investigative
assistance may be sought from the Defense Attache or the Military
Assistance and Advisory Group (MAAG). Incidents involving Attache or
MAAG personnel, and claims arising from their activities, will be
investigated in accordance with DIAM 100-1B, volume 1, section T,
chapter 1, or AR 175, chapter 6, as appropriate.
(d) Under the provisions of DODD 5515.9 the Commander, USARCS, or
designee, may request assistance from DOD components whose personnel
are involved in incidents generating claims in the investigation of
such claims, and may appoint DOD personnel as claims officers for the
purpose of conducting such investigations.
Sec. 536.17 Claims office responsibility.
(a) The claims JA/attorney receiving notice of an incident
requiring investigation will immediately refer it to the appropriate
claims officer and will notify, the Commander, USARCS of all major
incidents involving serious injury of death, or where non Federal
property damage exceeds $25,000. In some cases the claims JA/attorney
assigned to the case may decide that a unit claims officer
investigation is not necessary and waive the requirement.
(b) The heads of area claims offices and the chiefs of command
claims services are responsible for ensuring that a prompt and thorough
claims investigation is conducted of all claims for or against the Army
arising in their area before they take or recommend final action on a
claim. The investigation of incidents and claims arising out of the
activities of the Corps of Engineers (COE) is the responsibility of the
appropriate COE district or division Counsel. On claims in excess of
$25,000, the claims JA/attorney assigned to the case should consult
with the action officer at USARCS on the extent of the investigation
(see Sec. 536.21).
(c) The initial investigation by the unit claims officer is
supposed to be completed promptly after the accident and may not be
sufficient for final resolution of the claim. The unit's investigation
will often be completed before a formal claim is filed and before all
information about the full extent of the damages is available. An
interview of the claimant may not have been possible or advisable. New
information submitted with the claim may require further investigation.
The more extensive investigation usually required for final action on a
claim will often require the use of not just unit claims officers but
also claims JA's/attorneys and investigators within the area claims
office, experts within and from outside DOD and personnel from USARCS.
Sec. 536.18 Transfer of Responsibility.
(a) Transfer of responsibility is authorized when the investigation
may be more practicably conducted or completed by the claims officer of
another installation or unit. When two or more commands are involved,
the common superior commander or the Commander, USARCS will decide who
will conduct the investigation. The commanding officer whose personnel
or equipment is involved will furnish to the authority responsible for
conducting the investigation all available information concerning the
incident.
(b) Transfer will be accomplished by direct transmittal of a report
of the incident in writing, with all available evidence (or orally,
later confirmed in writing).
(c) When more than one Federal agency is or may be involved, the
claims office receiving the claim will contact, at the field level, all
other affected agencies in order to obtain the designation of a single
agency to investigate and determine the merits of the claim. If such a
designation cannot be agreed upon, USARCS will be notified in order to
attempt to resolve the matter at agency level or to request the
Department of Justice to make a designation. If the DA is the
designated agency, the claimant will be notified to correspond only
with the DA. This is not to be construed to preclude assistance in the
investigation from other Federal agencies.
(d) If a claim is received that arises solely out of the activities
of another Federal agency, the claim will be transferred to such agency
and the claimant notified of such transfer. If the appropriate agency
cannot be identified, the claim will be returned to the claimant
informing him or her of this fact.
(e) When an incident occurs where the Army has no unit or
installation conveniently located for conducting an investigation, but
another U.S. military department does have an installation or unit in
the vicinity, the responsible officer may request the commanding
officer or commander of any organization of another U.S. military
department to conduct or assist in the investigation. Similar requests
from another military department will be honored if possible.
Sec. 536.19 Investigation procedures.
(a) General. A claims investigator will be guided by policies,
procedures, and guidance set forth in DA Pam 27-162 or furnished by the
Commander, USARCS. For other than routine incidents, guidance should be
obtained from the claims approval or settlement authority who will have
jurisdiction based on the probable value of the largest single claim
arising from the incident. The extent and nature of the investigation
should be guided by the specific requirement of the situation. If it is
considered in the best interest of the Government, the Commander,
USARCS, or the chief of a command claims service, may grant authority
to deviate from the specific requirements contained in this part in a
particular investigation, except as to procedures that are based on
statute or have the force of law.
(b) Information from other investigations.
(1) The investigator should obtain a copy of the report of any
prior investigation that was made for purposes other than claims; for
example--
(i) Police reports.
(ii) Line of duty reports.
(iii) AR 15-6 investigations.
(iv) Reports of survey.
(v) IG investigations.
(vi) Safety investigations.
(vii) Government contractor investigations.
(viii) Investigations by other governmental agencies such as
National Transportation Safety Board; Food and Drug Administration;
Center for Disease Control; Bureau of Alcohol, Tobacco, and Firearms;
and Consumer Product Safety Commission.
(2) While such an investigation may not be adequate for claims and
litigation purposes, it may contain evidence and leads of value to the
investigator. If the report of the prior investigation contains
diagrams, photographs, or witness statements, it is not necessary for
the investigator to cover the same ground. Copies of such items may be
made and included in the claims investigation. Generally, however, it
will be necessary for the investigator to obtain more complete
statements from witnesses. This is especially true for statements in
medical quality assurance reports and reports of Army accidents
prepared by Army safety personnel, as there are regulatory restrictions
on the use of these statements in connection with claims and
litigation.
(3) When military records fail to confirm the occurrence of a
traffic accident upon which a claim is based, or substantial doubt
arises regarding the nature or extent of the actual damages or injuries
allegedly sustained, claims authorities should contact the Bureau of
Motor Vehicles of the appropriate State or municipality to ascertain
whether an accident report of the incident is a matter of record and,
if so, a copy of such report should be obtained.
(c) Statements of witnesses. Perhaps the most important phase of an
investigation is the securing of statements from available witnesses,
including the claimant and persons associated with him or her, for
example, persons riding in the vehicle. The claims investigator may
take the unsworn statements of a witness or may, if the statement is
satisfactory for claims purposes, use a statement secured by another
investigator.
(d) Photographs and diagrams. Claims investigators should have
cameras and obtain photographs and diagrams to describe the scene of
incidents that they investigate. Photographs and drawings should
indicate when taken or made and by whom.
(e) Claims requiring information of a specialized nature. Depending
on the nature of the incident, the investigator must decide on the
specialized nature of evidence that will be required. In this regard,
reference should be made to DA Pam 27-162 wherein specific items of
information and documentation required for various categories of
incidents are listed. Sufficient documentation of property losses or
damages and personal injury or death should be obtained. Technical
advice and assistance will be furnished by other DA agencies such as
the Tank and Automotive Command or the Army Safety Center for vehicular
accidents, or the Army Aviation Reserve Board and the Corpus Christi
Army Depot for aircraft accidents.
(f) Completion of investigation. Upon completion of the
investigation, the investigator must carefully review the report to
ascertain whether all pertinent information has been included and
inconsistencies reconciled. The review should take into consideration
the following questions: Is the report of investigation complete enough
to enable the approving authority to decide how the incident occurred?
On whom does the responsibility for the incident rest? What is the
extent of any loss or damage suffered? In the ordinary case, if the
investigator has included in the report all information pertaining to
the ``what,'' ``who,'' ``where,'' ``when,'' and ``how'' of the
occurrence, the information needed by those who must decide the claim
will be satisfied.
Claims Receipt and Disposition
Sec. 536.20 Presentation.
(a) Who may present. (1) A claim may be presented by the owner of
the property, or in the owner's name by a duly authorized agent or
legal representative. As used in this regulation an owner includes the
following:
(i) For real property. The mortgagor, or the mortgagee, if he or
she can maintain a cause of action in the local courts involving a tort
to that specific property. When notice of divided interests in real
property is received, the claim should, if feasible, be treated as a
single claim or a release from all interests must be obtained.
(ii) For personal property. A bailee, leasee, mortgagee, and
conditional vendor, or others having title for purposes of security
only, are not proper claimants unless specifically authorized in the
subpart in question. If more than one party has an interest in the
property, all must join in the claim or a release from all interests
must be obtained.
(2) A claim for personal injury may be presented by the injured
person or by a duly authorized agent or legal representative.
(3) A claim based on death may be presented by the executor or
administrator of the deceased's estate, or by any person determined to
be legally or beneficially entitled. The amount allowed will, to the
extent practicable, be apportioned among the beneficiaries in
accordance with the law applicable to the incident.
(4) A claim for medical, hospital, or burial expenses may be
presented by any person who by reason of family relationship has, in
fact, incurred the expenses for which the claim is made. For claims
cognizable under the provisions of the FTCA, see subpart D. (See
Sec. 536.86 for restrictions on damages allowable in claims involving
death or personal injury under the Act of 9 October 1962 (10 U.S.C.
2737).)
(5) A claim presented by an agent or legal representative will be
made in the name of the claimant and signed by the agent or legal
representative showing his or her title or capacity. Where a claim is
presented by an agent or legal representative--
(i) Written evidence of the authority of the agent or legal
representative to act, such as a power of attorney, is required, or
(ii) Where the authority is conferred by State statute, a citation
to that statute is required. (See DA Pam 27-162, appendix H, section I,
paragraph 14-2; see also Sec. 536.21 for additional requirements
relating to settlements.)
(6) A claim normally will include all damages that accrue by reason
of the incident. Where the same claimant has both a claim for damage to
or loss of property and a claim for personal injury or claim based on
death arising out of the same incident, each of the foregoing or any
combination of them ordinarily represent only an integral part of a
single claim or cause of action. Under subparts C through J of this
part, a single claimant is entitled to be compensated only one time for
all damages or injuries arising out of an incident.
(b) Subrogation. A claim may be presented by the subrogee in his or
her own name if authorized by the law of the place where the incident
giving rise to the claim occurred, provided subrogation is not barred
by the portion of this part applicable to the type of claim involved.
(1) The claims of the subrogor (insured) and subrogee (insurer) for
damages arising out of the same incident constitute separate claims and
it is permissible for the aggregate of such claims to exceed the
monetary jurisdiction of the approving or settlement authority.
(2) A subrogor and a subrogee may file a claim jointly or
individually. A fully subrogated claim will be paid only to the
subrogee. Whether a claim is fully subrogated is a matter to be
determined by local law. Some jurisdictions permit the property owner
to file for property damage even though he or she has been compensated
for the repairs by his or her insurer. In such instances a release
should be obtained from both parties in interest or be released by both
of them. The approved payment in a joint claim will be by joint check
that will be sent to the subrogee unless both parties specify
otherwise. If separate claims are filed, payment will be by check
issued to each claimant to the extent of his or her undisputed
interest.
(3) Where a claimant has made an election and accepted workmen's
compensation benefits, both statutory and case law of the jurisdiction
should be scrutinized to determine to what extent the claim of the
injured party against third parties has been extinguished by acceptance
of compensation benefits. While it is infrequent that the claim is
fully extinguished and where it is not, the only proper party claimant
is the workmen's compensation carrier. Even where the injured party's
claim has not been fully extinguished, most jurisdictions provide that
the compensation insurance carrier has a lien on any recovery from the
third party and no settlement should be reached without approval by the
carrier where required by local law (19 American Law Reports (ALR) 766,
supplemented by 27 ALR 493, 37 ALR 838, 67 ALR 249, 88 ALR 665, and 106
ALR 1040). Also, claims from the workmen's compensation carrier as
subrogee or otherwise will not be considered payable where the United
States has paid the premiums, directly or indirectly for the workmen's
compensation insurance. Applicable contract provisions holding the
United States harmless should be used.
(4) Whether medical payments paid by an insurer to its insured can
be subrogated depends on local law. Some jurisdictions prohibit these
claims to be submitted by the insurer notwithstanding a contractual
provision providing for subrogation. Therefore, local law should be
researched prior to deciding the issue, and claims forwarded to higher
headquarters for adjudication should contain the results of said
research. Such claims, where prohibited by State law, will also be
barred by the Antiassignment Act. (See paragraph (c) of this section).
(5) Care will be exercised to require insurance disclosure
consistent with the type of incident generating the claim. Every
claimant will, as a part of the claim, make a written disclosure
concerning insurance coverage as to--
(i) The name and address of every insurer;
(ii) The kind and amount of insurance;
(iii) Policy number;
(iv) Whether a claim has been or will be presented to an insurer,
and if so, the amount of such claim; and
(v) Whether the insurer has paid the claim in whole or has
indicated payment will be made.
(vi) Each subrogee must substantiate his or her interest or right
to file a claim by appropriate documentary evidence and should support
the claim as to liability and measure of damages in the same manner as
required of any other claimant. Documentary evidence of payment to
subrogor does not constitute evidence either of liability of the
Government or of the amount of damages. Approving and settlement
authorities will make independent determinations upon the evidence of
record and the law.
(vii) Subrogated claims are not cognizable under subparts E, J or
K.
(c) Transfer and assignments.
(1) Except as they occur by operation of law or after a voucher for
the payment has been issued, unless within the exceptions set forth by
statute (31 U.S.C. 3727 and AR 37-107), the following are null and
void:
(i) Every purported transfer or assignment of a claim against the
United States, or of any part of or interest in a claim, whether
absolute or conditional.
(ii) Every power of attorney or other purported authority to
receive payment of all or part of any such claim.
(2) The purposes of the Antiassignment Act are to eliminate
multiple payment of claims, to cause the United States to deal only
with original parties, and to prevent persons of influence from
purchasing claims against the United States.
(3) In general, this statute prohibits voluntary assignments of
claims with the exception of transfers or assignments made by operation
of law. The operation of law exception has been held to apply to claims
passing to assignees because of bankruptcy proceedings, assignments for
the benefit of creditors, corporate liquidations, consolidations or
reorganizations, and where title passes by operation of law to heirs or
legatees. Subrogated claims that arise under a statute are not barred
by the Antiassignment Act. For example, subrogated workmen's
compensation claims are cognizable when presented by the insurer.
(4) Subrogated claims that arise pursuant to contractual provisions
may be paid to the subrogee if the subrogated claim is recognized by
State statute or decision. For example, an insurer under an automobile
insurance policy becomes subrogated to the rights of a claimant upon
payment of a property damage claim. Generally, such subrogated claims
are authorized by State law and are therefore not barred by the
Antiassignment Act.
(5) Before claims are paid, it is necessary to determine whether
there may be a valid subrogated claim under Federal or State statute or
subrogation contract held valid by State law. If there may be a valid
subrogated claim forthcoming, payment should be withheld for this
portion of the claim. If it is determined that claimant is the only
proper party, full settlement is authorized.
(d) Action by claimant. (1) Form of claim. (i) The claimant will
submit his or her claim using authorized official forms whenever
practicable. A claim is filed only when the vital elements (see
Appendix B to this part) have been supplied in writing by a person
authorized to present a claim (paragraph (a) of this section) unless
the claim is cognizable under a subpart that specifies otherwise.
(ii) A claim may be amended by the claimant at any time prior to
final agency action or prior to the exercise of the claimant's option
under 28 U.S.C. 2675(a).
(2) Signatures.
(i) The claim and all other papers should be signed in ink by the
claimant or his or her duly authorized agent. Such signatures will
include the first name, middle initial, and surname. A married woman
should sign her claim in her given name; for example, ``Mary A. Doe.''
(ii) Where the claimant is represented, the supporting evidence
required by paragraph (a)(5) of this section will be required only if
the claim is signed by the agent or legal representative. However, in
all cases in which a claimant is represented, the name and address of
the representative will be included in the file together with copies of
all correspondence and records of conversations and other contacts
maintained and included in the file. Frequently, these records are
determinative as to whether the statute of limitations has been tolled.
(3) Presentation. The claim must be presented to the commanding
officer of the unit involved; the legal office of the nearest Army
post, camp, or station; or other military establishment convenient to
the claimant. In a foreign country where no appropriate commander is
stationed, the claim may be submitted to any attache of the U.S. Armed
Forces. (See AR 1-75.) Claims arising overseas which are cognizable
under Article VIII of the Agreement Regarding the Status of Forces of
Parties to the North Atlantic Treaty, Treaty of Mutual Cooperation and
Security Between the United States of America and Japan Regarding
Facilities and Areas and the Status of United States Armed Forces in
Japan or other similar treaty or agreement are filed with designated
claims officials of the receiving State.
(e) Evidence to be submitted by claimant. The claimant should
submit the evidence necessary to substantiate his or her claim. It is
essential that independent evidence be submitted that will substantiate
the correctness of the amount claimed.
(f) Statute of limitations. (1) General. Each statute available to
the DA for the administrative settlement of claims, except the Maritime
Claims Settlement Act (10 U.S.C. 4802), specifies the time during which
the right to file a claim must be exercised. These statutes of
limitations, which are jurisdictional in nature, are not subject to
waiver unless the statute expressly provides for waiver. Specific
information concerning the period for filing under each statute is
contained in the appropriate implementing subpart of this part.
(2) When a claim accrues. A claim accrues on the date on which the
alleged wrongful act or omission results in an actionable injury or
damage to the claimant or his or her decedent. Exceptions to this
general rule may exist where the claimant does not know of the injury
or damage, or does not know the cause of injury or damage. In those
cases, the claim accrues when the injured party, or someone acting on
his or her behalf, knows or should know about both the existence and
cause of the injury. However, this exception does not apply when, at a
later time, he or she discovers that the acts inflicting the injury may
constitute medical malpractice. (See United States v. Kubrick, 444 U.S.
111, 100 S. Ct. 352 (1979).) The discovery rule is not limited to
medical malpractice claims; it has been applied to diverse situations
involving violent death, chemical and atomic testing, and erosion and
hazardous work environment. In claims for indemnity or contribution
against the United States, the accrual date is the time of payment for
which indemnity is sought or on which contribution is based.
(3) Effect of infancy, incompetency, or the filing of suit. The
statute of limitations for administrative claims is not tolled by
infancy or incompetency. Likewise, the statute of limitations is not
tolled for purposes of filing an administrative claim by filing of a
suit based upon the same incident in a Federal, State, or local court
against the United States or other parties. (For the effect of filing
an administrative claim with an agency other than the Army, see
Sec. 536.53(b), Sec. 536.77(b) and (c) and 536.102)
(4) Amendment of claims. A claim may be amended by the claimant at
any time prior to final agency action or prior to the exercise of the
claimant's option under 28 U.S.C. 2675(a). A claim may be amended by
changing the amount, the bases of liability, or elements of damages
concerning the same incident. Parties may be added only if the
additional party could have filed a joint claim initially in paragraph
(a)(1) of this section. If the additional party had a separate cause of
action, his or her claim may not be treated as an amendment but only as
a separate claim and is thus barred if the statute of limitations has
run. For example, if a claim is timely filed on behalf of a minor for
personal injuries, a subsequent claim by a parent for loss of services
is considered a separate claim and is barred if it is not filed prior
to the running of the statute of limitations. Another example is where
a separate claim is filed for loss of services or consortium by a
spouse arising out of injuries to the husband or wife of the claimant.
On the other hand, if a claim is timely filed by an insured for the
deductible portion of his or her property damage, a subsequent claim by
the insurer based on payment of property damage to its insured may be
filed as an amendment even though the statute of limitations has run,
unless final action has been taken on the insured's claim.
(5) Date of receipt stops the running of the statute. In computing
the time to determine whether the period of limitation has expired,
exclude the first day and include the last day, except when it falls on
a nonworkday such as Saturday, Sunday, or a legal holiday, in which
case it is to be extended to the next workday.
Sec. 536.21 Disposition of claims.
(a) General. When a claim is received, the date and the designation
of the receiving command or office will be stamped or otherwise noted
on all copies. If the receiving command or office is not responsible
for the investigation, the claim will be transmitted to the claims
office of the command or installation concerned.
(b) By the command concerned. Following completion of the claims
investigation, the command claims service or claims office responsible
for the claim may take the following actions on all claims other than
those for which USARCS has exclusive jurisdiction (see Sec. 536.21(c)).
(1) If the claim is of a type and amount within the jurisdiction of
the claims office of the command concerned and the claim in meritorious
in the amount claimed, it will be approved and paid.
(2) If a claim in an amount in excess of the monetary jurisdiction
of the claims office is meritorious in a lesser amount within its
jurisdiction, the claim may be approved for payment provided the amount
offered is accepted by the claimant in settlement of the claim.
(3) If the claim is not of a type within the jurisdiction of the
claims office, or if the claimant will not accept an amount within its
jurisdiction, the claim with supporting papers and a recommendation for
appropriate action will be forwarded to the next higher claims
authority. Any personnel claim forwarded to a higher authority for
settlement will be accompanied by a memorandum of opinion. Prior to
forwarding any tort claim, the USARCS AAO must be consulted and a joint
decision reached on whether a memorandum of opinion must be submitted.
(4) If the claim is determined to be not meritorious, it will be
disapproved provided the claims office has settlement authority for
claims of the type and amount involved. If the type and amount of the
claim requires denial by higher authority, the claim will be forwarded
through claims channels to the appropriate authority accompanied by a
claims memorandum of opinion recommending denial. Prior to the
disapproval of a claim under a particular statute, a careful review
should be made to ensure that the claim is not properly payable under a
different statute or on another basis.
(c) Claims within the exclusive jurisdiction of USARCS. Authority
to settle the type of claims listed below has not been delegated below
USARCS. Command claim services or area claims offices receiving these
types of claims will investigate them in accordance with this
regulation and guidance from USARCS. Regardless of the amount claimed,
a mirror copy of the claims will be sent to Tort Claims Division,
USARCS immediately on receipt. Once the investigation is complete, the
files on these claims should be forwarded directly to USARCS and a
memorandum of opinion recommending disposition.
(1) Claims arising in the United States out of the actions of
members of the force or civilian component of a NATO nation or
headquarters (subpart G, statutory authority).
(2) Maritime claims for or against the Army other than those
arising overseas within the jurisdiction of a command claims service or
those within the jurisdiction of Corps of Engineers and other specially
designated claims offices (See subpart H).
(3) Claims based on the denial of a security clearance by the
government to civilian employee of defense contractors (DODD 5220.6,
section 10, paragraph C).
(4) Claims by the U.S. Postal Service against the Military Postal
Service Agency.
(5) In areas where the FTCA is applicable, any claim except those
under subpart K, arising out of an accident involving a POV driven by a
member of the Army, or by ARNG personnel defined in subpart F, based on
an allegation that the POV travel was within the scope of employment.
On these claims the memorandum of opinion will include a specific
discussion on the issue of scope of employment under applicable law
(See chapters 4 and 5, AR 27-40).
(d) Mirror file requirement. In addition to the claims listed in
536.21, USARCS is responsible for monitoring the investigation and
settling the following claims. A copy of these claims and of any claims
listed in paragraph (c) of this section, will be forwarded immediately
on receipt to the Commander, USARCS, ATTN: JACS-TCD.
(1) A case that must be brought to the attention of the Department
of Justice in accordance with The Attorney General's Regulations (DA
Pam 27-162, appendix H).
(2) Any FTCA, MCA, or other tort claim in which the amount claimed
exceeds $25,000.
(3) FTCA, MCA or other tort claims arising out of an incident if
the combined amounts of the claims exceed $25,000.
(4) A claim within the exclusive jurisdiction of USARCS (see
paragraph (c) of this section). The field claims office will provide
USARCS duplicates of all correspondence, records and documents relevant
to the investigation and processing of the claim as they are added to
the file. Direct liaison and correspondence between USARCS and the
field claims authority is authorized and encouraged on these and all
claims. In addition, heads of area claims offices in CONUS will advise
the action officer at Tort Claims Division, USARCS who is responsible
for their geographic area of all potential claims likely to meet the
criteria in this paragraph or in paragraph (c) of this section, and
will forward a copy of the investigation file to USARCS on request.
(e) By higher settlement authority. A higher claims settlement
authority may take action with respect to a claim in the same manner as
the initial claims office. However, if it is determined that any
further attempt to settle the claim would be unwarranted, the claim
will be forwarded to the Commander, USARCS, with recommendations.
(f) Claims not cognizable under subparts C through L. If a claim is
determined not to be cognizable under this regulation, reference to DA
Pam 27-162, chapter 8 may reveal a basis for compensation or
consideration by another agency. If so, the claimant will be so
advised. If, after investigation, it appears that the claim may not be
settled under any law or regulation, the claim, the related file, and a
memorandum of opinion will be forwarded through claim channels to the
Commander, USARCS.
(g) Blast damage claims. All claims cognizable under subparts C, D
and F which are based on damage to or loss of property due to
explosions (for example, artillery firing, aerial bombing, or
demolition of explosives) will be sent through USARCS to U.S. Army
Ballistic Research Laboratories (USABRL), Aberdeen Proving Grounds, MD
21005-5055, for a technical opinion prior to settlement. See DA Pam 27-
162, chapter 5, section IX.
Sec. 536.22 Claims memorandum of opinion.
(a) Tort Claims memorandum. Unless otherwise agreed between the
USARCS AAO and the area claims office (see section 536.21(b)(1), the
contents and arrangement of the Tort Claims memorandum will be as
follows:
(1) Part I. Identifying data.
(i) Name, address, and social security number of all claimants/
plaintiffs.
(ii) Name, address, and telephone number of attorney.
(iii) Date and place of incident.
(iv) Date and amount of claim/ad damnum of complaint.
(v) Brief (one sentence) description of claim/case.
(vi) Actual or potential companion claims (nature and status).
(2) Part II. Jurisdiction. Discuss applicable statute(s), whether
the claim was timely and properly filed, and other jurisdictional
matters.
(3) Part III. Facts. Provide a complete statement of the facts upon
which the claim and any defense thereto are predicated. In each
instance in which a fact is supported by documents or witness
statements in the file, appropriate parenthetical references will be
inserted into the statement of facts. Subparagraphs with descriptive
headings will be used if appropriate, for example, background facts or
facts about the incident.
(4) Part IV. Legal analysis. List issues related to liability and
the controlling law with applicable citations. Subparagraphs with
descriptive headings will be used as appropriate and necessary, for
example, law controlling factual issues, factual bases for claim as
related to issues (duty, proximate cause), defenses, existence of joint
tortfeasors. If the claim is barred by a jurisdictional defense, for
example, Feres, Federal Employees Compensation Act, statute of
limitations, this matter will be discussed separately. The position on
liability will be stated at the end of the section.
(5) Part V. Damages. Discuss the following in the order listed
under appropriate subheadings as necessary: Who can claim under
applicable law, for example, wrongful death; description of injuries
and treatment; description of property loss and proof thereof; types of
special damages (such as, loss of earnings, loss of services, past and
future care); type and nature of non-economic or general damages (use a
summary in tabular form, as necessary, for special and general
damages); effect of diminished liability on the value of the claim;
effect of subrogation.
(6) Part VI. Proposed settlement or action. Discuss any proposed
structured settlement. Discuss any prior offers, or negotiations and
status. If a denial or final offer is indicated, so state.
(7) Part VII. Recommendation.
(8) Part VIII. Document and witness list.
(i) The witness list will include the name, SSAN, telephone number,
and present and permanent address for each witness or medical reviewer.
(ii) Identify each document in the file.
(iii) For all medical malpractice claims, attach DD Form 2526 (Case
Abstract for Malpractice Claims) as an enclosure. (See paragraph (c) of
this section for additional instructions.)
(9) Part IX. Responses to pleadings (for claims in litigation
only).
(i) Proposed answer.
(ii) Defenses.
(iii) Counterclaims.
(iv) Crossclaims.
(v) Dispositive motions (identify and list).
(b) Personnel Claims memorandum. See Sec. 536.168 for instructions
on preparing a Personnel Claims memorandum.
(c) Case abstract for malpractice claims. On all dental and medical
malpractice claims, claims JAs will attach DD Form 2526 (Case Abstract
for Malpractice Claims) to all memoranda prepared under paragraph (a)
of this section, and forward to USARCS. Claims JAs will also submit
this form to USARCS on all dental and medical malpractice claims
settled or denied within their local authority. When a claim is
transferred to USARCS without a forwarding memorandum prepared under
paragraph (a) of this section, DD Form 2526 must still be completed and
forwarded within 60 days after the medical records are available for
review by the MTF/DTF risk manager (RM).
(1) Claims JAs/MCJAs will coordinate the completion of the form
pertaining to the Standard of Care, Diagnoses, and Procedures with the
MTF/DTF RM or the RM's designee. If the RM does not provide this
information, claims JAs/MCJAs will note the reason and submit the form
to USARCS. The sections pertaining to Provider Information and Type of
Provider and Specialty of DD Form 2526 will not be completed on the
form submitted to USARCS. OTSG will task subordinate commands to
forward provider information on settled claims.
(2) Claims JAs are required to submit one DD Form 2526 for each
incident (course of treatment or nontreatment that results in an
injury) for which a claim has been filed. Derivative claims do not
require a separate report. However, separate reports are required when
claimants allege physical injury to more than one claimant (for
example, an infant's claim for brain damage as a result of birth trauma
and a mother's claim for physical injury caused by the delivery would
require two reports). When a claimant alleges negligent medical care at
more than one MTF/DTF, USARCS will designate the claims JA who will
complete the DD Form 2526.
(d) Subsequent action. It is not necessary for each claims
authority who considers the claim to write a separate memorandum. If a
claims approval or settlement authority agrees with the memorandum of
opinion written by another authority, he or she can adopt the earlier
memorandum by merely stating that he or she concurs in the adopted
memorandum and stating the nature of the action. If there is
disagreement, in whole or in part, with the earlier memorandum, such
disagreement should be stated and reasons therefor set forth in a
separate memorandum or in an addendum. The approval or settlement
authority will personally sign the action, indicating position title.
Sec. 536.23 Actions.
The following actions may be taken as appropriate:
(a) Transmittal of the claim to the appropriate claims office for
proposed disposition.
(b) Disapproval of the claim provided the person signing the action
is a settlement authority. (See appendix B to this part).
(c) Final offer. (See appendix B to this part).
(d) Approval and certification of the claim for payment.
(1) SF 1034 (Public Voucher for Purchases and Services Other Than
Personal) will be used on all claims settled under this part except
claims settled under subpart D which will be paid utilizing an SF 1145
(Voucher for Payment Under the Federal Tort Claims Act). (See
Sec. 536.35(a)(1) for exceptions.)
(2) When an SF 1034 is to be paid by the GAO, the certification
block of the SF 1034 will not be signed by Army Officials. GAO
officials will certify any payment made by that agency. (See
Sec. 536.35(a)(1) for exceptions.)
(3) Payment of a claim under subpart D in excess of $2,500 is
obtained by forwarding necessary documentation to the GAO. Complete
information on the requirements to effect such payments are set forth
in Sec. 536.35(b). Note that the approval or settlement authority signs
only the approval block (lower left) of the SF 1145 before submitting a
claim to the GAO for payment.
(e) Subsequent action. See Sec. 536.22(d).
Liability and Quantum Determinations
Sec. 536.24 General considerations.
(a) Liability. In the adjudication of tort claims arising in the
United States, the liability of the United States generally is
determined in accordance with the law of the state or country where the
act or omission occurred, except that any conflict between local law
and an applicable United States statute will be resolved in favor of
the latter. However, in claims arising in foreign countries, liability
may be based in whole or in part on local law or as otherwise provided
in subpart C for settlements of claims of United States inhabitants
arising overseas under the Military Claims Act. (See Sec. 536.55(c).)
Where liability is not clear or other issues exist, settlements should
truly reflect the uncertainties in the adjudication of such issues.
Compromise settlements are encouraged provided agreement can be reached
that reflects the reduced value of the damages as measured against the
full value or range of value if such uncertainties or issues did not
exist and were it possible for the claimant to successfully litigate
the claim.
(b) Quantum exclusion. The costs of filing a claim and similar
costs (for example, court costs, bail, interest, inconvenience
expenses, or costs of long distance telephone calls or transportation
in connection with the preparation of a claim) are not proper quantum
elements and will not be allowed.
(c) Property damage. Property damage compensable under the tort
claims provisions of this part means damage to tangible real or
personal property (see glossary). It does not include mere diminution
of value of real property unless there is some corresponding physical
damage to the property, nor does it include damage to reputation,
employment rights or constitutional rights. Other remedies may be
available for such injuries but they are generally not cognizable under
the FTCA, MCA, FCA or the Maritime Claims Settlement Act.
Sec. 536.25 Incident to service exclusionary rule.
(a) General. A claim for personal injury or death of a member of
the armed forces of the United States or a civilian employee of the
United States that accrued incident to his or her service is not
payable under this part. A property damage claim that accrued incident
to the service of a member of the Armed Forces may be payable under 31
U.S.C. 3721 (subpart K) or the MCA (subpart C), depending on the facts.
(b) Property damage claims. A claim for damage to or loss of
personal property of a claimant who is within one of the categories of
proper party claimants listed in Sec. 536.163, which is otherwise
cognizable under Sec. 536.164, must first be considered thereunder. If
a claim is not clearly compensable under subpart K, and it arises
incident to a noncombat activity of the DA or was caused by a negligent
or wrongful act or omission of military personnel or civilian employees
of DOD, it may be cognizable under either the MCA or the FTCA. The
claim, if meritorious in fact, will probably be payable under one
authorization or another regardless of whether the claim accrued
incident to the service of the claimant.
(c) Personal injury and death claims. (1) Only after the death or
personal injury has been determined to have not been incurred incident
to the member's service should subparts C and D be studied to determine
which, if either, provides a proper basis for settlement of the claim.
In any event, the rule in U.S. v. Brooks, 176 F.2d 482 (4th Cir. 1949)
requiring setoff of amounts obtained though military or veterans'
compensation systems against amounts otherwise recoverable will be
followed. Other Government benefits funded by general Treasury
revenues, not by the claimant's contributions, may also be used as a
setoff against the settlement, for example, Overton v. United States,
619 F.2d 1299 (8th Cir. 1980).
(2) As the incident to service issue is determinative as to whether
this type of claim may be processed administratively, the applicable
law and facts should be carefully considered before deciding that
injury or death was not incident to service. Such claims also are often
difficult to settle on the issue of quantum and thus more likely to end
in litigation. Moreover, the United States may well elect to defend the
lawsuit on the basis of the incident to service exclusion and this
defense could be prejudiced by a contrary administrative determination
that a service member's personal injuries or death were not incident to
service. Doubtful cases will be forwarded to the Commander, USARCS
without action along with sufficient factual information to permit a
determination of the incident to service question.
Sec. 536.26 Property damage appraisers.
(a) Appraisers will be used as follows:
(1) Appraisers should be used in all claims where an appraisal is
reasonably necessary and useful in effectuating the administrative
settlement of the claim. Appraisals may not be economically feasible in
some cases involving property damage of less than $100 per item and the
extent of damage may be determined by personal inspection and agreement
with the claimant.
(2) Where an appraisal is considered necessary, the claims officer
and claimant should mutually agree, whenever possible, upon a
disinterested appraiser after determining the approximate cost of the
appraisal. The method of payment should be agreed upon in advance.
(i) If the claimant pays for the appraisal and can substantiate
payment thereof by a paid bill or canceled check, such cost is a
reimbursable element of damage.
(ii) If the DA is absorbing the cost of the appraisal, payment is
made from Appropriations, Operation and Maintenance, Army (AR 37-108,
paragraph 3-74).
(3) If a single appraiser cannot be agreed upon, a joint appraisal
can be conducted (that is one in which an appraiser chosen by claimant
and an appraiser chosen by the Government both examine the property and
submit their respective appraisals). Joint appraisals should be
coordinated and monitored by the claims officer. The cost of a single
or joint appraisal should be commensurate with the amount of damage
allegedly sustained and the fee charged by other appraisers for similar
work.
(b) Appraisals by other organizations within the DA, the other
Armed Services, or other Federal agencies may be used in addition to or
in lieu of independent appraisal when obtainable. Other organizations
within DA may be called upon to furnish such appraisals; for example,
engineer districts will furnish an appraiser, if available, in regard
to damage to buildings or diminution in value of real property,
provided the requesting office defrays travel expenses for the
individual's TDY.
Sec. 536.27 Independent medical examinations.
(a) In claims involving serious personal injuries, for example,
cases in which there is an allegation of temporary or permanent
disability, the claimant should be examined by an independent
physician, or other medical specialist, depending upon the nature and
extent of the injuries. The necessity for, and the cost of, the
examination should be commensurate with the severity of the injuries
allegedly sustained and the fee charged by other examiners for similar
work. To preclude duplication of effort and expense, both claimant and
the claims officer must agree, in advance, upon the following:
(1) The examiner chosen to conduct the examination and the location
of the medical facility (whether governmental or civilian).
(2) That the examiner's report constitutes the best evidence of the
nature and extent of claimant's injuries.
(3) The method of paying for the examination.
(b) The necessity for conducting the medical examination must be
approved by the claims office having monetary jurisdiction over the
largest claim or potential claim arising out of the incident. If a
medical report is submitted in conjunction with the filing of a claim,
such report should be included in the file.
(c) Payment of a civilian examiner's fee can be accomplished in
either of the following two ways:
(1) The claimant can incur the cost of the examination and submit a
paid receipt or cancelled check, which constitutes a reimbursable
element of damage in evaluating the claim.
(2) The DA can absorb the cost of the examination (payment is made
from Appropriations, Operation and Maintenance, Army (AR 37-108,
paragraph 3-74)) by the claims office having responsibility for
investigating the claim.
(d) As to an examination costing in excess of $750 or when local
funds are exhausted, a request for funding may be directed to
Commander, USARCS with appropriate justification.
(e) If the parties cannot agree upon an independent examiner, and
if either the examiner chosen by the claimant or the results of the
examination are not acceptable, the Government may demand that the
claimant be examined by an examiner acceptable to the Government.
(f) Examinations of claimants at Army medical treatment facilities
are authorized by AR 40-3. Such examinations may be used in addition to
or in lieu of the foregoing where indicated.
Sec. 536.28 Effect on award of other payments to claimant.
The total award to which the claimant (and subrogees) may be
entitled normally will be computed as follows:
(a) Determine the total of the loss or damage suffered.
(b) Deduct from the total loss or damage suffered any payment,
compensation, or benefit the claimant has received from the following
sources:
(1) The U.S. or ARNG employee/member who caused the damage.
(2) The U.S. or ARNG employee's/member's insurer.
(3) Any person or agency in a surety relationship with the U.S.
employee; or
(4) Any joint tortfeasor or insurer, to include Government
contractors under contracts or in jurisdictions where it is permissible
to obtain contribution or indemnity for the contractor in settlement of
claims by contractor employees and third parties.
(5) Any advance payment made pursuant to the section entitled
``advance payments'' of this subpart.
(6) Any benefit or compensation based directly or indirectly on an
employer-employee relationship with the United States or Government
contractor and received at the expense of the United States, including
but not limited to medical or hospital services, burial expenses, death
gratuities, disability payment or pensions.
(7) The State (Commonwealth and so forth) whose employee or ARNG
member (32 U.S.C. section 101(3)) caused or generated an incident that
was a proximate cause of the resulting damages.
(8) Value of Federal medical care.
(9) Benefits paid by the Department of Veterans Affairs (VA) that
are intended to compensate the same elements of damage. When the
claimant is receiving money benefits from the VA under 38 U.S.C. 351
for a nonservice connected disability or death based on the injury that
is the subject of the claim, acceptance of a settlement or an award
under the FTCA will discontinue the VA monetary benefits until the
amount that would have otherwise been received in VA monetary benefits
is equal to the total amount of the agreement or award including
attorney fees. While monetary benefits received under 38 U.S.C. 351
must be discontinued as above, medical benefits, that is, VA medical
care may continue provided the settlement or award expressly provides
for such continuance and the appropriate VA official is informed of
such continuance.
(10) When the claimant is receiving money benefits under 38 U.S.C.
410(b) for non-service connected death, arising from the injury that is
the subject of the claim, acceptance of a settlement or award under the
FTCA or under any other tort procedure will discontinue the VA benefits
until the amount that would have otherwise been received in VA benefits
is equal to the amount of the total settlement or award including
attorney fees. The discontinuation of monetary benefits under 38 U.S.C.
410(b) has no effect on the receipt of other VA benefits. The claimant
should be informed of the foregoing prior to the conclusion of any
settlement and thus afforded an opportunity to make appropriate
adjustment in the amount being negotiated.
(11) The value of other Federal benefits to which the claimant did
not contribute, or at least to the extent they are funded from general
revenue appropriations.
(12) From collateral sources where permitted by State law (for
example, State or Federal workers' compensation, social security,
private health, accident, and disability benefits paid as a result of
injuries caused by a health care provider).
(c) No deduction will be made for any payment the claimant has
received by way of voluntary contributions, such as donations of
charitable organizations.
(d) Where a payment has been made to the claimant by his or her
insurers or other surbrogee, or under workmen's compensation insurance
coverage if subrogated interests are allowable, the award based on
total damages will be apportioned in relation to their separate
interests (Sec. 536.20).
(e) After deduction of permissible collateral and noncollateral
sources, also deduct that portion of the loss or damage believed to
have been caused by the negligence of the claimant, third parties whose
negligence can be imputed to the claimant, or joint tortfeasors who are
liable for their share of the negligence (for example, where some form
of the Uniform Contribution Among Joint Tortfeasors Act has been
passed).
Sec. 536.29 Claims with more than one potential source of recovery.
(a) The Government seeks to avoid multiple recovery (that is,
claimants seeking recovery from more than one potential source) and to
minimize the award it must make. The claims investigation should
therefore identify other parties potentially liable to the claimant
and/or their insurance carriers; indicate the status of any claims made
or include a statement that none has been made so that it can be
assured there is only one recovery and the Government does not pay a
disproportionate share. Where no claim has been made by the claimant
against others potentially liable, if applicable State law grants the
Government the right to indemnity or contribution, and it is felt the
Government may be entitled to either under the facts developed by the
claims investigation, the claims officer or attorney should formally
notify the other parties of their potentially liability, the
Government's willingness to share information, and its expectation of
shared responsibility for any settlement. Furthermore, the claimant may
be receiving or entitled to receive benefits from collateral and non-
collateral sources (Sec. 536.28), which can be deducted from the total
loss or damage. Accordingly, a careful review must be made of
applicable State laws regarding joint several liability, indemnity,
contribution, comparative negligence, and the collateral source
doctrine.
(b) If a demand by a claimant or an inquiry by a potential claimant
is directed solely to the Army, where it appears that the responsible
Army employee may have applicable insurance coverage, the employee
should be queried as to whether he or she has liability insurance.
(1) If so, determine if his or her insurer has made or will make
any payment to claimant. Under applicable State laws, the United States
may also be an insured entitled to coverage under the employee's
liability policy. (See 16 ALR3d 1411; United States v. State Farm
Mutual Ins. Co., 245 F. Supp. 58 (D. Ore. 1965.)) Therefore, where
there may be applicable insurance coverage, the policy language should
be reviewed, together with the rules and regulations of the State
insurance regulatory body, or determine whether--
(i) The United States comes within the definition of ``insured''.
(ii) The exclusion of the United States from policy coverage
conforms with state laws and policy.
(iii) Appropriate consideration has been given for a policy where
the United States has been excluded from coverage.
(2) If the employee refuses to cooperate in providing this
information, he or she should be advised to comply with the notice
requirements of the insurance policy and to request the insurance
carrier to contact the claims officer or attorney. The case should be
followed to ascertain whether the employee's insurer has made or will
make any payment to the claimant before deciding whether to settle the
claim against the Government. Normally, the award, if any, to the
claimant will be reduced by the amount of the payment of the employee's
insurance carrier.
(c) If the employee is the sole target of the claim and Army claims
authorities arrange to have the claim made against the Government, the
employee should be required to notify his or her insurance carrier
according to the policy and inform Army claims authorities of the name
of the insurance carrier and details of the coverage. Except when the
driver's statute is applicable, the insurance carrier is expected to
participate in the negotiation of the claims settlement and to pay its
fair share of any award to the claimant.
(d) Where the responsible Army employee is ``on loan'' to another
employer other than the United States (for example, an ROTC instructor
at a civilian institution or performing duties for a foreign
government), it should be determined whether there is applicable
statutory or insurance coverage concerning the acts of the responsible
employee and appropriate contribution or indemnification should be
sought. In the case of foreign governments, applicable treaties or
agreements are controlling.
(e) A great many claims cognizable under the FTCA are now settled
on a compromise basis. A major consideration in many such settlements
is the identification of other sources of recovery. This is true in a
variety of factual situations where there is a potential joint
tortfeasor; for example, multi-vehicle accidents with multiple drivers
and guest passengers, State or local government involvement,
contractors performing non-routine tasks for the Government, medical
treatment rendered to claimants by non-Government employees, or
incidents caused by a member or employee of the military department of
a State or Commonwealth with whom the DA does not have a cost-sharing
agreement. The law of the jurisdiction regarding joint and several
liability, indemnity, and contribution may permit shared financial
responsibility, but even in jurisdictions that do not permit
contribution, a compromise settlement can be reached with the other
tortfeasor's insurance company paying a portion of the total amount of
the claim against the Government. For these reasons, every effort
should be made to identify the insurance of all potential tortfeasers
involved and the status of any claims made, and to demand contribution
or indemnity where substantial reason exists to believe that liability
for the loss or damage should be shared.
(f) When a claim is filed against the Government under a subpart
that does not permit the payment of a subrogated interest (subparts E,
J, K), it is important to ensure that full information is obtained from
the claimant regarding insurance coverage since it is the legislative
intent of the statutes upon which these subparts are based that
insurance coverage be fully utilized before using appropriated funds to
pay the claims.
Settlement Procedures
Sec. 536.30 Settlement.
(a) General. Settlement means denial or payment of a claim in full
or in part. When an approval or settlement authority determines that a
claim is meritorious in an amount within his or her monetary
jurisdiction, the claim will be approved in that amount under the
statute determined to be proper regardless of the statutory basis
asserted by the claimant. Every effort will be made to settle claims at
the lowest level possible commensurate with the actual value of the
claim.
(b) Award of full amount claimed. If an approval or settlement
authority approves a claim in full, the claim will be certified for
payment to the appropriate disbursing officer. Enclosures listed in
Sec. 536.35 will be forwarded with the claim. The claimant will be
notified of the action taken on the claim. A settlement agreement is
required prior to payment.
(c) Award of less than full amount. When an approval or settlement
authority determines that a claim is meritorious in part, he or she
will--
(1) Notify the claimant in writing of his or her action.
(2) Request the execution of a settlement agreement (in triplicate)
in final and complete settlement of the claim in the reduced amount.
(3) If an approval authority, inform the claimant that if he or she
does not desire to accept the award, he or she should indicate in the
reply the reasons for rejection. If a settlement authority, and the
action is taken under subparts C or F, inform the claimant of the right
to appeal. (See Sec. 536.63 and Sec. 536.103.) DA Pam 27-162 provides
sample formats for letters notifying claimants of the actions taken on
their claims. (Fig 5-10 is to be used by field approving and settlement
authorities; figs 5-8 through 5-11 are to be used by claims authorities
in conjunction with Sec. 536.37 of this part.)
(d) Nonacceptance of reduced award. When a claimant rejects a
partial award, the approval authority may reconsider the matter and, if
justified, make further efforts to settle the claim. When further
efforts to settle appear unwarranted, the claim and related file will
be forwarded to the settlement authority having jurisdiction over the
largest claim or potential claim arising out of the incident with a
memorandum of opinion. The claimant should be advised of such referral.
(e) Civil works claims. Engineer civil works claims settled under
the provisions of the FTCA in an amount of $2,500 or less normally are
paid out of funds controlled by the COE rather than claims
appropriations. Unsettled claims in this category should, therefore, be
forwarded to the Commander, USARCS. An information copy will be sent to
the COE, ATTN: Chief Counsel, unless the latter waives that
requirement. Civil works claims received outside engineer channels
should be forwarded without further action to the district or division
engineer in whose area the incident occurred, or to the COE, ATTN:
Chief Counsel.
(f) Settlement of property damage claims. All claims submitted for
only property damage or for only personal injury should be evaluated
for other potential claims. Under tort claims statutes, only one
payment may be made to a claimant on all claims arising out of a single
incident. Therefore, a property damage claim arising from an incident
in which the claimant sustained injury should not be paid unless the
claimant executes a release for any potential injury claim. Likewise,
when a property damage claim is settled the claimant should be informed
that subsequent claims for hidden damage or loss of use are precluded
by the settlement.
Sec. 536.31 Claims forwarded without settlement.
(a) Claims beyond monetary jurisdiction. If the chief of a command
claims service or the head of a claims office considers a claim
meritorious in an amount exceeding their jurisdiction, they will
forward the claim with a memorandum of opinion to the settlement
authority having jurisdiction over the largest claim or potential claim
arising out of the incident. The claimant should be informed of this
referral. In most cases the claimant should not be informed of the
amount of award recommended. However, for claims arising under the
Foreign Claims Act notice of the amount recommended may be required in
accordance with Sec. 536.156.
(b) Claims recommended for disapproval. If a claim is forwarded to
higher authority with a recommendation for denial, the claimant will be
advised of this referral but not of the recommendation.
(c) Companion claim. When two or more claims arising from the same
incident are by reason of differences in amounts within the monetary
jurisdiction of different approval or settlement authorities, all such
claims will be forwarded to the authority having jurisdiction over the
claim presented in the greatest amount. This authority may either
settle the claims or return the claim to the appropriate field claims
office for settlement in accordance with his or her guidance.
(1) The same procedure will be followed when a potential claim
exists in an amount estimated to be beyond the jurisdiction of the
approval or settlement authority actually considering the matter. For
example, the foregoing applies when a small subrogated property damage
claim is received arising from an incident in which severe personal
injury or death has occurred but as to which no claim has yet been
filed. In a case of clear liability, authorization to settle the claim
within the monetary jurisdiction of the requesting officer may be
obtained telephonically or by other expeditious means.
(2) Similarly, where there is a claim for property damage and no
evidence (for example, police report, report of survey, collateral
accident investigation, and witness interviews) of personal injury, the
property damage claim may be settled by the authority having
jurisdiction. However, where there is evidence of personal injury, the
foregoing caveat regarding settlement and payment of lesser claims will
apply. In such instances the claimant will be informed that settlement
of a property damage claim will preclude settlement of a subsequently
filed personal injury claim and vice versa. (See Sec. 536.176 on
personnel claims and Sec. 537.32 on companion claims in litigation.)
(d) Property claim of a claims authority or superior. A claim
arising from loss or damage to the property of an approval or
settlement authority or his or her superior officer in the chain of
command will be forwarded without recommendation to the next higher
settlement authority (in the case of a division, this would be a corps
level settlement authority; in an overseas area, this includes a
command claims service) or to USARCS.
Sec. 536.32 Settlement agreement.
(a) General. (1) Except under subpart K, if a claim is determined
to be meritorious in an amount less than claimed, or if a claim
involving personal injuries or death is approved in full, a settlement
agreement will be obtained prior to payment. A settlement agreement may
be required in other instances when, in the opinion of the adjudication
authority, good legal practice so dictates; for example, where family
or other multiple interests may be involved.
(2) A DA Form 1666 may be used for settlement of claims under the
FTCA for less than $2500 and for all other claims payable from Army
funds. Claims payable in excess of $2500 under the FTCA will be settled
using Standard Form 1145, Voucher for Payment Under the Federal Tort
Claims Act. In some cases a special settlement agreement may be
necessary to reflect the full understanding of the parties. However,
all such special agreements should incorporate the language of the
acceptance block on the Standard Form 1145.
(3) Acceptance by a claimant of an award under subparts C and K
constitutes a full and final settlement and release of any and all
claims against the United States and against the military of civilian
personnel whose act or omission gave rise to the claim. The claimant
should be so advised prior to the initiation of negotiations. Where
this is done orally and the claimant is unrepresented, a memorandum of
the conversation should be placed in the file and a copy furnished to
the claimant. Also, settlement negotiations with unrepresented
claimants should also be preserved in the form of memoranda retained in
the file with a copy furnished to the claimant. While a settlement
agreement is not required in claims adjudicated under subpart K, the
settlement authority approving payment may require one at his or her
discretion.
(b) Claims involving minors. (1) Generally, only a court-appointed
guardian of the estate of a minor, or a person performing a similar
function under the supervision of a court, can execute a binding
settlement agreement relative to a minor's claim. Therefore, a guardian
of the estate of the minor or similar functionary must be appointed by
a court of competent jurisdiction and must execute a settlement
agreement before a claim is approved and paid. (See. Sec. 536.35.)
However, this requirement can be eliminated and the settlement
agreement can be signed by a parent, next-of-kin, or a friend if the
contemplated payment is small and the cost of obtaining a court-
appointed guardian would materially deplete the award.
(2) In foreign countries where the amount agreed to does not exceed
$2,500.00, the requirement for obtaining a guardian may be eliminated.
However, in areas where the FTCA (subpart D) applies, local law should
be consulted as a basis for determining whether a court appointed
guardian should be required. The requirement to appoint a guardian
should not be imposed until a particular claim is determined to be
meritorious in an amount that would require the appointment of a
guardian. The claimant should be advised of this requirement well in
advance of settlement negotiations so that the cost of establishing
guardianship can be considered by the claimant as a factor in
evaluating the claim. This requirement also can be eliminated if local
law authorizes or requires a claim such as for death of a parent of the
minor, to be presented on behalf of the estate of the decedent by an
administrator, administratrix, or the like. In such cases, a settlement
agreement signed by the administrator, administratrix, or the like will
suffice if, under local law, such action is binding on the minor.
(3) The above provisions are in addition to, not in lieu of, the
requirements of Sec. 536.20(a)(5).
(c) Claims involving incompetents. The above stated principles may
also be applied in appropriate cases involving incompetents. Authority
to waive the foregoing requirements in appropriate cases is delegated
to the Commander, USARCS. If it is felt that the foregoing requirements
are materially impeding settlement of the claim, the matter should be
brought to the attention of the Commander, USARCS for appropriate
resolution.
(d) Claims involving workmen's compensation carriers. The
settlement of a claim involving a claimant who has elected to receive
workmen's compensation benefits under local law may require the consent
of the workmen's compensation carrier and in certain jurisdictions the
State agency with authority over workmen's compensation awards.
Accordingly, claims approval and settlement authorities should be aware
of local requirements.
Sec. 536.33 Vouchers.
Vouchers are prepared in an original and three copies. The original
and two copies (one marked as comeback copy) will be transmitted to the
disbursing office and one copy retained as a suspense copy. Upon
payment of the claim, the disbursing office will return the comeback
copy, which will be included in the file when it is transmitted to the
Commander, USARCS for post settlement review.
Sec. 536.34 Accounting codes.
(a) Certifying an approved claim for payment creates an obligation
against the claims appropriation for the fiscal year then in progress.
Accordingly, the voucher will bear the appropriate accounting code for
both the appropriation charged and the current fiscal year,
irrespective of the date the claim accrued or was filed. Confusion
sometimes arises at the end of a fiscal year; for example, an approved
claim is certified for payment on 28 September (the last business day
of a fiscal year), but it is obvious that it will not be actually paid
(i.e., a check issued by the disbursing activity) until on or after 1
October (the first day of the following fiscal year). At the time the
check is issued, the accounting code will not be advanced to the next
fiscal year. Claims checks are issued using the accounting code of the
fiscal year in which the claim was certified for payment (i.e., the
fiscal year in which the voucher was signed).
(b) The accounting code for each type of claim remains constant,
except for the third digit of the code which is the second digit of the
fiscal year (e.g., ``O'' for ``FY90''). The accounting codes for claims
appropriations are published each fiscal year in the AR 37-100 series.
Accounting codes used in the payment of claims and refunds, and their
references, are listed below; the ``X'' denotes the space where the
second digit of the fiscal year appears.
Table B-1.--Frequently Used Claims Accounting Codes
Accounting code: 21X2020 22-0205 P202097.23-4230 FAJA S99999 21X2020 22-
0305 P202097.23-4230 FAJA S99999
Reference: Subpart C (Military Claims Act)
Accounting code: 21X2020 22-0203 P202097.21-4230 FAJA S99999 21X2020 22-
0303 P202097.21-4230 FAJA S99999
Reference: Subpart C (Military Claims Act) Use symbol only if claim
approved for $2,500 or less--if approved for more than $2,500,
allotment symbol will be filled in by GAO.
Accounting code: 21X2020 22-0208 P202097.26-4230 FAJA S99999 21X2020 22-
0308 P202097.26-4230 FAJA S99999
Reference: Subpart E (Nonscope Claims)
Accounting code: 21X2020 22-0206 P202097.24-4230 FAJA S99999 21X2020 22-
0306 P202097.24-4230 FAJA S99999
Reference: Subpart F (National Guard Claims Act)
Accounting code: 21X2020 22-0207 P202097.25-4230 FAJA S99999 21X2020 22-
0307 P202097.25-4230 FAJA S99999
Reference: Subpart H (Maritime Claims)
Accounting code: 21X2020 22-0204 P202097.26-4230 FAJA S99999 21X2020 22-
0304 P202097.26-4230 FAJA S99999
Reference: Subpart J (Foreign Claims Act)
Accounting code: 21X2020 22-0201 P202097.11-4230 FAJA S99999 21X2020 22-
0301 P202097.11-4230 FAJA S99999
Reference: Subpart K (Personnel Claims Act)
Sec. 536.35 Payment.
(a) General. Except as provided in Sec. 536.35(a)(1), when a claim
has been determined to be payable, the approval or settlement authority
will transmit the following to the appropriate disbursing office:
(1) The voucher (SF 1034 or SF 1145 as appropriate) in triplicate,
with a request that one copy be returned with voucher number and date
of payment noted thereon.
(2) Two copies of--
(i) The claim. (Under Subpart K this means DD Form 1842 (Claim for
Loss of or Damage to Personal Property Incident to Service).)
(ii) The settlement agreement, as required.
(iii) Actions and other documents as required; for example, DA Form
1668 signed by the approving or settlement authority (as the substitute
for action in small claims under subparts C, D, E, F, H or J) attorney
general approval and court approval on claims for minors and
incompetents.
(iv) Original power of attorney, where appropriate.
(b) Electronic payment procedures. At installations where
electronic payment procedures have been implemented, the approving or
settlement authority will electronically transmit payment information
to the servicing finance and accounting office. The claim, the
settlement agreement, any actions or other required documents, and the
original power of attorney will not be transmitted to the finance and
accounting office, but will be retained in the claims file. Instead, a
``payment report'' produced by the claims automation program provided
such offices by USARCS, which evidences or supports the fact that a
claims official has approved a claim payment, will be transmitted to
the disbursing activity in accordance with locally established
procedures. The method of transmission used should not result in
avoidable or significant delay in the issuance of checks for claims
payments. The payment report includes--
(1) The name of the payee.
(2) The payee's social security number (if available).
(3) The payee's address.
(4) The date the claim was filed.
(5) The claim number.
(6) The amount claimed.
(7) The amount of the approved payment.
(8) The date the payment was recorded in claims records.
(9) The claims office identification.
(10) The claims office's office code.
(c) Payments in excess of $2,500 under the FTCA (Sec. 536.78).
Claims paid in excess of $2,500 under the FTCA will be submitted to the
GAO with the same documentation as indicated in paragraph (a) of this
section but with the following exceptions:
(1) Standard Form 1145 will be signed by the settlement authority
on the lower left side only. The space on the right side for the
authorized certifying officer will not be signed.
(i) Where a minor is payee, the full legal name of the individual
should be listed on the voucher; for example, ``John Doe, Sr., as
guardian of John Doe, Jr.'' Descriptive words such as ``Mrs. John Doe
and her three minor children'' should not be used.
(ii) The accounting classification will not be placed on the
voucher. This is accomplished by the GAO as the payment is made from
Treasury funds.
(2) The letter of transmittal to the GAO will include a statement
that the individual whose signature appears on the voucher as
certifying authority is the person having authority to act under the
provisions of the FTCA and Sec. 536.80.
(3) The Attorney General will approve payments in excess of $25,000
in lieu of action of the approval or settlement authority.
(d) Advance payment. When it has been determined that an advance
payment will be made, the approval or settlement authority will
transmit to the appropriate disbursing officer--
(1) SF 1034 (in triplicate) with a request that one copy be
returned with voucher number and date of payment.
(2) The original copy and one copy of the action by the approval or
settlement authority authorizing advance payment and the Advance
Payment Acceptance Agreement. (See Sec. 536.47)
(e) Payment involving minors. Payment will be made to the
individual who executed the settlement agreement on behalf of the
minor.
(f) Lost, stolen, forged, destroyed, or undeliverable Government
checks. Army disbursing officers have the authority to issue substitute
checks for checks that have been issued by the Army and that are
subsequently lost, destroyed, or rendered undeliverable. (See AR 37103,
chap 4, secs. VII through X.) Some Federal agencies do not yet have
this authority. Inquiries from payees or endorsees of Army-issued
checks should be referred to an Army comptroller; inquiries regarding
other agencies should be referred to the specific agency involved. For
claims paid by the GAO, if the Treasury check is lost or stolen, the
payee or endorsee should be referred to the Check Forgery Insurance
Fund, Department of the Treasury (31 U.S.C. 3343, 31 CFR 235.1 through
235.6). The Fund can reimburse such losses provided the specific
requirements of the Statute are met. The Fund is administered by the
Commissioner, Financial Management Service, Department of the Treasury,
3700 East-West Highway, Hyattsville, MD 20782.
Sec. 536.36 Effect of payment.
Acceptance of an award by the claimant, except for advance payment,
constitutes for the United States, military personnel, or civilian
employee whose act or omission gave rise to the claim, a release from
all liability to the claimant, based on the act or omission. However,
on tort claims only one payment may be made for all damages a claimant
sustains from an incident. Therefore, a signed unconditional settlement
agreement is needed to ensure that the claimant understands the
finality of accepting payment.
Sec. 536.37 Notification as to denial of claims.
(a) General. The nature and extent of the written notification to
the claimant as to the denial of his or her claim should be based on
whether the claimant has a judicial remedy following denial or an
administrative recourse to appeal.
(b) Final actions under subpart D. If the settlement authority has
information that could be a persuasive factor for the claimant as to
whether to resort to litigation, such information may be orally
transmitted to the claimant and, in appropriate cases, released under
normal procedures in accordance with AR 340-17 or AR 340-21. However,
the written notification of the denial should be general in nature; for
example, denial on the weaker ground of contributory negligence should
be avoided and the inclination should be to deny on the basis that the
claimant was solely responsible for the incident. The claimant will be
informed in writing of his or her right to bring an action in the
appropriate U.S. District Court not later than 6 months after the date
of mailing of the notification. See DA PAM 27-162, figures 5-8 and 5-9.
(c) Final actions under subparts C, F and J. Final agency actions
under subparts C, F or J are subject to appeal and the claimant will be
so informed. Also, the notice of final action will be sufficiently
detailed to provide the claimant with an opportunity to know and
attempt to overcome the basis for denial. The claimant should not be
afforded a valid basis for claiming surprise when an issue adverse to
him or her is asserted as a basis for denying the appeal (see DA Pam
27-162, figures 5-8 and 5-9).
(d) Denials on jurisdictional grounds. Regardless of the nature of
the claim or the statute under which it may be considered, claims
denied on jurisdictional grounds that are valid, certain, and not
easily overcome (and for this reason no detailed investigation as to
the merits of the claim is conducted) should contain in the denial
letter a statement that the denial on such grounds is not to be
construed as an expression of opinion on the merits of the claim or an
admission of liability. If sufficient factual information is available
to make a tentative ruling on the merits of the claim, liability may be
expressly denied.
(e) Claims that may be considered under more than one subpart. In
doubtful cases as to whether subparts C, D and F are the appropriate
subparts to consider the claim, the claimant will be advised of the
alternatives; for example, the right to sue or the right to appeal.
Similarly, a claimant may be advised of his or her alternative remedies
when the claimant is a military member and the issue of ``incident to
service'' is not clear.
(f) Denial after litigation. On those claims cognizable under the
FTCA in which the claimant files suit after six months without agency
action, a formal denial will be sent to the claimant unless the
Assistant United States Attorney responsible for the litigation of the
suit expressly directs otherwise. The denial will be on the basis that
the claim is no longer amenable to administrative settlement. Other
reasons for denial may also be given.
Small Claims
Sec. 536.38 General.
Secs. 536-38 through 536.43 provides an expeditious procedure for
the investigation and payment of claims (regardless of the amount
claimed) that may be without extensive investigation. If it appears
that a claim should be denied or cannot be settled within the limits
specified in Secs. 536.38 through 536.43, it will be fully investigated
under normal procedures. The use of small claims procedures is not
mandatory; however, these procedures should be used whenever considered
appropriate in the judgment of the claims approval or settlement
authority, as considerable processing time and expense is usually saved
thereby. If a fully investigated claim is received by an approval or
settlement authority, which in his or her opinion could properly have
been processed under small claims procedures, the claim will be settled
in accordance with normal procedures. Appropriate corrective action
will be taken to ensure the use of small claims procedures in similar
future cases.
Sec. 536.39 Investigation.
The investigation will be made so as to develop most expeditiously
the facts necessary to determine whether the claim is meritorious and
in what amount. The evidence required may be obtained by telephone,
from incident reports, and other forms of hearsay evidence. Written
statements of witnesses, written estimates of repairs, and the like are
not required. The approving authority must be convinced and state on DA
Form 1668 that--
(a) The United States is liable for the damage or injury incurred.
(b) The claimant is a proper claimant.
(c) The amount approved, as claimed or agreed upon, is reasonably
substantiated.
Sec. 536.40 Report of investigation.
When it appears that a small claim may arise, the report of
investigation will be prepared on DA form 1668. The investigator will
append a brief summary of the evidence developed. The summary may be
used as a basis for completion of the investigation after a claim has
been filed. This report is exempted from control in accordance with AR
335-15, paragraph 7-2t.
Sec. 536.41 Processing.
(a) If the amount claimed under subpart K is not more than $1,000,
or in the case of a tort claim is not more than $2500, and is
considered meritorious in full, the claims JA/attorney will complete DD
Form 1842 or DA Form 1668 and pay the claim.
(b) A claim under subpart K is meritorious in an amount of $1,000
or less, or if a tort claim is meritorious in the amount of $2500 or
less, the claim JA/attorney may settle the claim.
(c) After coordination with the responsible approving or settlement
authority, unit claims officers may be authorized to attempt to procure
a settlement agreement. If a settlement agreement is obtained, the
claims officer will complete the small claims certificate for the
amount of recommended payment and transmit it, in triplicate, with the
claim and settlement agreement, to the approval or settlement
authority.
(d) If a claimant refuses to accept a sum offered under this
section or if it appears that a claim should be disapproved, the small
claims procedures will not be employed; the claim will be fully
investigated and processed.
(e) Nonappropriated fund claims will be forwarded by the approval
or settlement authority for payment as prescribed in subpart L.
(f) Claims under subpart K. DA Form 1668 will not be employed in
the settlement of small claims under subpart K. Such a claim will be
submitted on DD Form 1842. Procedures in subpart K will be used.
Sec. 536.42 Settlement agreement.
When a claimant is available and agrees to accept a sum less than
originally claimed, he or she will be requested to sign, in ink, a
statement to that effect on any open space on each copy of the claim
form (SF 95 (Claim for Damage, Injury, or Death)). If not readily
available, the claimant will be requested to sign and return in
triplicate a DA Form 1666 or Standard Form 1145, which will be attached
to the claim form.
Sec. 536.43 Payment.
(a) If a small claim is payable under any subpart except subparts G
and I, the approval or settlement authority will allow the procedures
of either Sec. 536.35(a) and Sec. 536.35(a)(1).
(b) Except for claims cognizable under subpart K and personnel
claims cognizable under subpart L an approval authority who has been
appointed an agent officer under AR 37-103, chapter 15, may pay the
claim, and will require the claimant to sign, in triplicate, a receipt
in the following language:
----------------------------------------------------------------------
(Date)
I hereby acknowledge receipt of----------------------------------------
in full satisfaction and final settlement of the within claim.
----------------------------------------------------------------------
(Signature)
----------------------------------------------------------------------
(Name printed)
(c) This above receipt may be printed, stamped, typed, or written
in ink in any available space on the front or back of the signed claim
form. If not on the claim form, the receipt will be modified to
identify and will be firmly affixed to the appropriate claim.
Advance Payments
Sec. 536.44 Authority.
This section implements the act of 8 September 1961 (75 Stat. 488,
10 U.S.C. 2736) as amended by Pub. L. 90-521 (82 Stat. 874), Pub. L.
98-564, and Pub. L. 100-456. No new liability is created by 10 U.S.C.
2736, which merely permits partial advance payments on meritorious
claims as specified above. (See Sec. 536.178 for emergency partial
payments in personnel claims, which are not governed by 10 U.S.C.
2736.)
Sec. 536.45 Conditions for advance payment.
An advance payment not in excess of $100,000 is authorized in the
limited category of claims resulting in immediate hardship arising from
incidents that are payable under subparts C, F or J. An advance payment
is authorized only under the following circumstances:
(a) The claim must be determined to be cognizable and meritorious
under the provisions of subparts C, F or J.
(b) There exists an immediate need of the person who suffered an
injury, damage, or loss, or of the family of a person who was killed
for food, clothing, shelter, medical, burial expenses, other
necessities, or other resources for such expenses that are not
reasonably available.
(c) The payee, so far as can be determined, would be a proper
claimant, as is the spouse or next of kin of a claimant who is
incapacitated.
(d) The total damage sustained must exceed the amount of the
advance payment.
(e) A properly executed advance payment acceptance agreement has
been obtained.
Sec. 536.46 Authorization.
The authorities listed are authorized to make advance payments as
follows:
(a) Under subparts C and F of this part, TJAG and TAJAG may make
advance payments in amounts not exceeding $100,000; the Commander,
USARCS, in amounts not exceeding $25,000; and the authorities
designated in Sec. 536.61(a) (4) and (5) and Sec. 536.103(c)(3), in
amounts not exceeding $10,000, subject to advance coordination with
USARCS if the estimated total value of the claim exceeds their monetary
authority. Requests for advance payments in excess of $10,000 will be
forwarded to USARCS for processing.
(b) Under subpart J of this part, three-member claims commissions
may make advance payments under the Foreign Claims Act in amounts not
exceeding $10,000, subject to advance coordination with USARCS if the
estimated total value of the claim exceeds their monetary authority.
Sec. 536.47 Advance payment acceptance agreement.
Prior to making any advance payment, the authority approving such
payment will obtain an executed acceptance agreement from the
claimants.
Subpart C--Claims Cognizable Under the Military Claims Act
Sec. 536.48 Statutory authority.
The statutory authority for this subpart is contained in the act of
10 August 1956 (70A Stat. 153, 10 U.S.C. 2733), commonly referred to as
the ``Military Claims Act,'' as amended by Pub. L. 90-522, 26 September
1968 (82 Stat. 875), Pub. L. 90-525, 26 September 1968 (82 Stat. 877),
Pub. L. 93-336, 8 July 1974; the act of 8 September 1961 (75 Stat. 488,
10 U.S.C. 2736), as amended by Pub. L. 90-521, 26 September 1968 (82
Stat. 874); and the act of 30 October 1984, Pub. L. 98-564.
Sec. 536.49 Scope.
This subpart is applicable in all locations and prescribes the
substantive bases and special procedural requirements for the
settlement of claims against the United States for death; personal
injury; or damage, loss, or destruction of property--
(a) Caused by military personnel or civilian employees of the DA
acting within the scope of their employment.
(b) Incident to the noncombat activities of the DA, provided such
claim is not for personal injury or death of a member of the Armed
Forces or Coast Guard or civilian officer or employee whose injury or
death is incident to service.
Sec. 536.50 Claims payable.
(a) General. Unless otherwise prescribed, a claim for personal
injury, death, or damage or loss of real or personal property is
payable under this subpart when--
(1) Caused by an act or omission determined to be negligent,
wrongful, or otherwise involving fault of military personnel or
civilian officers or employees of the DA acting within the scope of
their employment, including certain Red Cross volunteers meeting the
criteria in AR 40-3, paragraph 2-42, or
(2) Incident to the noncombat activities of the DA.
(b) Property. The loss or damage to property that may be the
subject of claims under this subpart includes--
(1) Real property used and occupied under lease, express or
implied, or otherwise (for example, in connection with training, field
exercises, or maneuvers). An allowance may be made for the use and
occupancy of real property arising out of trespass or other tort, even
though claimed as rent. (See DA PAM 27-162, paragraph 8-46.)
(2) Personal property bailed to the Government under an agreement,
express or implied, unless the owner has expressly assumed the risk of
damage or loss. Some losses may be payable using Operations and
Maintenance, Army funds. (See DA PAM 27-162, paragraph 8-41.) Clothing
damage or loss claims arising out of the operation of an Army
Quartermaster laundry are considered to be incident to service and are
payable only if claimant is not a proper claimant under subpart K.
(3) Registered or insured mail in the possession of the DA, even
though the loss was caused by a criminal act. (See DA PAM 27-162,
paragraph 8-61 for settlement of claims by the U.S. Postal Service.)
(c) Effect of FTCA. A claim may be settled in the United States
only if the FTCA has been judicially determined not to be applicable to
claims of this nature or if the claim arose incident to noncombat
activities.
(d) Advance payments. Advance payments (10 U.S.C. 2736, as amended)
in partial payment of meritorious claims to alleviate immediate
hardship are authorized as provided in subpart B.
Sec. 536.51 Claims not payable.
A claim is not payable that--
(a) Results wholly from the negligent or wrongful act of the
claimant or agent. (See Sec. 536.55(b) on comparative negligence.)
(b) Is for reimbursement for medical, hospital, or burial expenses
furnished at the expense of the United States.
(c) Is purely contractual in nature.
(d) Arises from private as distinguished from Government
transactions.
(e) Is based solely on compassionate grounds.
(f) Is for war trophies or articles intended directly or indirectly
for persons other than claimant or members of his or her immediate
family, such as articles acquired to be disposed of as gifts or for
sale to another, voluntarily bailed to the Army, or is for precious
jewels or other articles of extraordinary value voluntarily bailed to
the Army. The preceding sentence is not applicable to claims involving
registered or insured mail. No allowance will be made for any item when
the evidence indicates that the acquisition, possession, or
transportation thereof was in violation of DA directives.
(g) Is for rent, damage, or other payments involving the
acquisition, use, possession, or disposition of real property or
interests therein by and for the DA, except as authorized by
Sec. 536.50(b). Real estate claims founded upon contract are generally
processed under AR 405-15. (See DA PAM 27-162, paragraph 8-46.)
(h) Is not in the best interests of the United States, is contrary
to public policy, or is otherwise contrary to the basic intent of the
governing statute (10 U.S.C. 2733); for example, claims by inhabitants
of unfriendly foreign countries or by or based on injury or death of
individuals considered to be unfriendly to the United States. When a
claim is considered to be not payable for the reasons stated in this
paragraph, it will be forwarded for appropriate action to the
Commander, USARCS, together with the recommendations of the responsible
claims office.
(i) Is presented by a national, or a corporation controlled by a
national, of a country at war or engaged in armed conflict with the
United States, or any country allied with such enemy country unless the
appropriate settlement authority determines that the claimant is and,
at the time of the incident, was friendly to the United States. A
prisoner of war or an interned enemy alien is not excluded as to a
claim for damage, loss, or destruction of personal property in the
custody of the Government otherwise payable.
(j) Is for personal injury or death of a member of the Armed Forces
or Coast Guard or a civilian employee that is incident to his or her
service (10 U.S.C. 2733(b)(3)).
(k) Is listed in Sec. 536.75, except for claims listed in
Sec. 536.75(n) and (r).
Sec. 536.52 Claims having multiple remedies.
(a) Claims cognizable under other subparts.
(1) Claims based upon a single act or incident cognizable under
this subpart and subparts H or K will be first considered under the
latter subparts; if not payable under any of those subparts, the claim
will be considered under this subpart.
(2) A claim may not be paid under this subpart if it is covered by
the Federal Tort Claims Act (subpart E) or the Foreign Claims Act
(subpart J). (See 10 U.S.C. 2733(b)(2)).
(3) Where a Status of Forces Agreement or other agreement provides
for host country adjudication of a claim, the treaty process may be the
claimants exclusive remedy (see subpart G). Where a foreign country is
responsible for adjudication of the claim under the terms of such an
agreement, it may not be paid under the provisions of this subpart. If
the foreign country refuses to recognize legal responsibility for the
claim, or to consider it under applicable treaty provisions, the chief
of a command claims service or, where the estimated value of the claim
is within USARCS authority, the Commander, USARCS may authorize
adjudication of the claim under this subpart. The mere fact a foreign
country fails to pay the claims on its merits is not sufficient basis
for invoking this authority.
(b) Claims based upon multiple acts or theories of liability. Where
claims cognizable under this subpart are based upon more than one act
or injury and where one or more of the acts or injuries are also
cognizable under the FTCA (subpart D) (for example, claims alleging
acts of medical malpractice both in a foreign country and in the United
States or claims alleging negligence in the conduct of a noncombat
activity), the claims will be processed as follows:
(1) Meritorious claims.
(i) If the primary cognizable act or incident upon which the claim
is based is not cognizable under subpart D, the claim may be considered
and paid under this subpart. However, the settlement agreement must
expressly release the United States from any further liability under
the FTCA or any other statute or regulation for all acts or incidents
upon which the claim was based. If the claim is over $25,000, any
proposed settlement will be coordinated with USARCS prior to final
action.
(ii) If the primary cognizable act or incident upon which the claim
is based is cognizable under subpart D, the claim will be first
considered under subpart D. If the claim is determined by proper
authority to be nonmeritorious under subpart D but meritorious under
this subpart (for example, negligence occurred overseas but none
occurred in the United States or there is no negligence in the conduct
of a noncombat activity), it may be considered and paid under this
subpart. However, an agreed settlement must be reached that expressly
releases the United States from further liability under the FTCA or any
other statute or regulation for all acts or incidents upon which the
claim was based. If the claim was presented in an amount over $25,000,
any proposed settlement will be coordinated with USARCS.
(2) Nonmeritorious claims. Where claims are based upon multiple
acts or incidents, some or all of which may be cognizable under subpart
D (Federal Tort Claims Act (FTCA)), extreme care will be taken prior to
any disapproval based upon this subpart. Whether a claim is covered by
Cognizability under the FTCA is a litigable issue. Such claims will be
disapproved under this subpart only as follows:
(i) A claim presented in an amount not over $25,000, may be
disapproved by an office with settlement authority having jurisdiction
over the claim only if the claim is determined to be nonmeritorious
under both this subpart and subpart D; however the disapproval
procedures established in subpart D must be fully satisfied. In such
cases, the disapproval notification will advise the claimant of his or
her concurrent rights to appeal the disapproval under this subpart or
to institute suit under the FTCA. (See Sec. 536.63.) In case of doubt
concerning the applicability of this paragraph, the question will be
referred to USARCS.
(ii) Claims of the type covered by this paragraph, which are
presented in an amount over $25,000, will be disapproved only by the
USARCS.
(c) Claims in litigation. Disposition under this subpart of any
claim of the type covered by this paragraph that goes into litigation
in any State or Federal court under any State or Federal statute or
ordinance will be suspended pending disposition of such litigation, and
the claim file will be forwarded to USARCS. The Commander, USARCS, in
coordination with the U.S. Department of Justice, may determine that
final disposition under this subpart during pendency of the litigation
is in the best interests of the United States. This paragraph will also
apply to any litigation brought against any agent of the United States
in his or her individual capacity that is based upon the same acts or
incidents upon which a claim under the subpart is based.
Sec. 536.53 Presentation of claim.
(a) When claim must be presented. A claim may be settled under this
subpart only if presented in writing within 2 years after it accrues.
If a claim accrues in time of war or armed conflict, or if war or armed
conflict intervenes within 2 years after it accrues, and if good cause
is shown, the claim may be presented not later than 2 years after war
or armed conflict is terminated. As used in this paragraph, a war or
armed conflict is one in which any Armed Force of the United States is
engaged. The dates of commencement and termination of an armed conflict
must be established by concurrent resolution of Congress or by
determination of the President.
(b) Where claim must be presented. A claim must be presented to an
agency or instrumentality of the DA. However, the statute of
limitations is tolled if a claim is filed with another Government
agency and forwarded to the DA within 6 months, or if the claimant
makes inquiry of the DA concerning his or her claim within 6 months
after it was filed with another agency of the Government. If a claim is
received by an official of the DA who is not a claims approval or
settlement authority under this subpart, the claim will be transmitted
without delay to the nearest claims office or JA office for delivery to
such an office.
Sec. 536.54 Procedures.
So far as not inconsistent with this subpart, the claims procedures
set forth in subpart B will be followed. Subrogated claims will be
processed as prescribed in Sec. 536.20(b).
Sec. 536.55 Law applicable to liability.
(a) Claims arising within the United States, and its territories,
commonwealths and possessions. As to claims arising in the United
States, its territories, commonwealths, and possessions, the law of the
place where the act or omission occurred will be applied in determining
liability and the effect of contributory negligence on the claimant's
right to recover damages. However, theories of strict or absolute
liability will not be applicable to claims under this subpart.
(b) Claims arising within foreign countries.
(1) For claims arising in a foreign country, liability of the
United States will be assessed by reference to the law of the District
of Columbia applicable to torts committed in and having their operative
effect in the District (i.e., District of Columbia choice of law rules
will not be applicable). The United States shall be liable in the same
manner and to the same extent as a private individual under like
circumstances, except that theories of absolute or strict liability may
not be applied under this subpart. Damages will be determined under the
provisions of Sec. 536.56 through Sec. 536.59.
(2) The law of the place in which the alleged negligent act
occurred will be applied to determine the effect of the claimant's own
negligence on the merits of the claim. Where there is no law on this
issue, the MCA requires application of traditional rules of
contributory negligence.
(3) In traffic accident cases, questions of negligence, and the
degree of the claimant's comparative negligence, will be evaluated
based on the traffic and vehicle safety laws and regulations of the
country in which the accident occurred, but only to the extent they are
not specifically superseded or preempted by U.S. military traffic
regulations. Likewise, where a claim is based on the failure to comply
with some safety or regulatory standard, the standard applicable at the
time and in the place where the claim arose will be used, rather than
any comparable standard in the District of Columbia.
Sec. 536.56 Measure of damages for property claims.
(a) General. The measure of damages in property claims arising in
the United States or its possessions will be determined in accordance
with the law of the place where the incident occurred. The measure of
damages in property claims arising overseas will be determined in
accordance with the law of the District of Columbia (see
Sec. 536.55(a)). However, punitive or exemplary damages, including
damages considered punitive in nature under 28 U.S.C. 2674, and
interest on any settlement are not payable.
(b) Proof of damage. The information listed in paragraphs (b)(1)
thru (4) (similar to that required by 28 CFR 14.4(c) (DA Pam 27-162,
appendix H)) will be submitted by a claimant to substantiate a claim.
(1) Proof of ownership.
(2) Detailed statement of amount claimed for each item of property.
(3) Itemized receipt or estimate for all repairs.
(4) Statement giving date of purchase, price, and, where not
economically repairable, the salvage value.
(c) Appraisals. The assistance of appraisers should be used in all
claims where, in the opinion of the claims officer, an appraisal is
reasonably necessary and useful in effectuating the administrative
settlement of claims. (See Sec. 536.26 for procedures on appraisals.)
Sec. 536.57 Measure of damages in injury or death claims arising in
the United States or its possessions.
Measure of damages in injury or death claims arising in the United
States or its possessions will be assessed as follows:
(a) Where an injury or an injury resulting in death arises within
the United States or its possessions, the measure of damages will be
determined in accordance with the law of the State or possession
wherein the injury arises. However, punitive or exemplary damages,
including damages considered punitive in nature under 28 U.S.C. 2674,
and interest on any settlement are not payable.
(b) The information listed in paragraph (b)(1) thru (7) (similar to
that required by 28 CFR 14.4(a) (DA Pam 27-162, appendix H)) will be
submitted by a claimant to substantiate a wrongful death claim:
(1) Authenticated death certificate or other competent evidence
showing date and cause of death and age of decedent.
(2) Decedent's employment and occupation at time of death,
including salary or earnings and duration of last employment or
occupation.
(3) Names, addresses, birth dates, kinship, and marital status of
survivors.
(4) Identification of persons dependent on decedent for support at
time of death and the degree of support provided.
(5) Decedent's general physical and mental condition at time of
death.
(6) Itemized bills or receipts for medical and burial expenses.
(7) If damages for pain and suffering are claimed, a physician's
statement specifying the injuries suffered, duration of pain and
suffering, drugs administered, and decedent's physical condition
between time of injury and time of death.
(c) The information listed in paragraph (c)(1) thru (5) (similar to
that required by 28 CFR 14.4(b) (DA Pam 27-162, appendix H)) will be
submitted by a claimant to substantiate a personal injury claim:
(1) Written report by the attending physician or dentist setting
forth the--
(i) Nature and extent of injury.
(ii) Nature and extent of treatment.
(iii) Degree of temporary or permanent disability.
(iv) Prognosis.
(v) Period of hospitalization.
(vi) Diminished earning capacity.
(2) Itemized bills or receipts for medical, dental, and hospital
expenses.
(3) If the prognosis includes future treatment, a statement of
expected expenses for such treatment.
(4) If the claim includes lost time from employment, a statement by
the employer showing the actual time lost and wages and/or salary lost.
(5) If the claim includes lost income by a self-employed claimant,
documentary evidence of such loss.
Sec. 536.58 Measure of damages in injury or death claims arising in
foreign countries.
(a) Where a claim for an injury, or injury resulting in death,
arises outside of the United States or its possessions, the elements of
damages payable under this subpart will be the same as those payable in
a similar claim arising under the law of the District of Columbia
applicable to torts committed in and having their operative effect in
the District of Columbia. The amount paid will be based on generally
accepted economic principles. All awards for future payments of
economic damages will be discounted to present value. Awards under this
subpart will be reduced by any benefits which have been or are
reasonable likely to be paid, if the benefit or payment is from the
general revenues of the United States and the claimant did not
contribute to or purchase the benefit. In death cases, taxes and
personal consumption will be deducted from any award for lost economic
contribution or lost earnings. Punitive or exemplary damages, including
damages considered punitive in nature under 28 U.S.C. 2674, and
interest on any settlement are not payable.
(b) The information listed in Sec. 536.57(b) or (c), as
appropriate, will be submitted by the claimant to substantiate a claim.
(c) A claimant who alleges a serious personal injury resulting in
temporary or permanent disability should be examined by an independent
physician or other medical specialist. The purpose of the examination
is not just to confirm the impairment but also to help assess its
extent, prognosis and treatment. See Sec. 536.27 for independent
medical examination procedures.
Sec. 536.59 Failure to substantiate a claim.
(a) The Government is not obligated to take final action on a claim
until it has been supported by the claimant with specific facts
substantiated by appropriate documentary evidence, reports of
investigation, medical records, or witness statements. As the burden of
proof is on the claimant, the failure to substantiate a claim within a
reasonable time can be the basis for denial of the claim. Upon request,
the claimant must--
(1) Provide the documentation required by Secs. 536.56 through
536.58.
(2) Undergo necessary medical examinations.
(3) Permit questioning of the claimant, his or her witnesses, and
treating medical personnel.
(4) Submit an expert opinion in a professional negligence action.
(b) Failure to comply with these requirements may provide a basis
for denial of a claim, in full or in part.
Sec. 536.60 Structured settlement.
(a) The use of the structured settlement device by approval and
settlement authorities is encouraged in all appropriate cases. A
structured settlement should not be used when contrary to the desires
of the claimant.
(b) Notwithstanding the above, the Commander, USARCS may require or
recommend to higher authority that an acceptable structured settlement
be made a condition of award notwithstanding objection by the claimant
or his or her representative where--
(1) Necessary to ensure adequate and secure care and compensation
to a minor or otherwise incompetent claimant over a period of years;
(2) Where a trust device is necessary to ensure the long-term
availability of funds for anticipated further medical care;
(3) Where the injured party's life expectancy cannot be reasonably
determined.
Sec. 536.61 Settlement authority.
(a) The Secretary of the Army, the Assistant Secretary of the Army
(Financial Management) as designee of the Secretary or other designee
of the Secretary of the Army must approve settlements in excess of
$100,000.
(b) Delegations of authority.
(1) Disapprovals and final offers in claims acted on under the
delegations set forth herein are subject to appeal to the authorities
specified in paragraph (d) of this section.
(2) The TJAG and TAJAG are delegated authority to pay up to
$100,000 in settlement of a claim and to disapprove a claim regardless
of the amount claimed. The Commander, USARCS will process such claims
as prescribed in Sec. 536.62.
(3) The Commander, USARCS, or designees, are delegated authority to
pay up to $25,000 in settlement of a claim and to disapprove or make a
final offer in a claim regardless of the amount claimed.
(4) The SJA and, subject to limitations imposed by him or her, the
chief of the command claims service of the commands listed in paragraph
(4) (i) thru (iii) are delegated authority to pay up to $25,000 in
settlement of a claim, regardless of the amount claimed, and to
disapprove or make a final offer in a claim presented in an amount not
exceeding $25,000:
(i) USAREUR.
(ii) Eighth U.S. Army, Korea.
(iii) USARSO.
(5) Area claims offices are delegated authority to pay up to
$15,000 in settlement of a claim, regardless of the amount claimed, and
to disapprove or make a final offer in a claim presented in an amount
not exceeding $15,000.
(6) Claims processing offices with approval authority are delegated
authority to approve, in full or in part, claims presented for $5,000
or less, and to pay claims regardless of the amount claimed provided an
award of $5,000 or less is accepted in full satisfaction of the claim.
(c) Settlement of multiple claims arising from a single incident.
(1) Where a single act or incident gives rise to multiple claims
cognizable under this subpart, and where one or more of these claims
apparently cannot be settled within the jurisdiction of the authority
initially acting on the claims, no final offer will be made and all
claims will be forwarded with recommendation as to disposition to the
authority having jurisdiction over the largest claim for a
determination of liability.
(2) If such authority determines that liability of the United
States is established, he or she may return claims of lesser value to
the field office for settlement within that office's jurisdiction. Care
will be exercised by the field office to avoid compromising the
discretion of the higher authority by conceding liability in claims of
lesser amount.
(d) Appeals. Denials or final offers on claims described as allows
may be appealed to the official designated:
(1) For claims presented in an amount over $100,000, final
decisions on appeals will be made by the Secretary of the Army or
designee.
(2) For claims presented for $100,000 or less and any denied claim,
regardless of the amount claimed, in which the denial was based solely
upon an incident to service bar (FERES), on exclusionary language in a
federal statute governing compensation of federal employees for job
related injuries (see, for example, Sec. 536.75 (s) and (t)) or upon
the lack of timely filing, final decisions on appeals will be made by
TJAG or TAJAG, except that claims presented for $25,000 or less and not
acted on by the Commander, USARCS are governed by paragraph (d)(3) of
this section.
(3) For claims presented for $25,000 or less, final decisions on
appeals will be made by the Commander, USARCS, or his designee or the
chief of a command claims service for claims acted on by an area claims
office under such service's jurisdiction. See Secs. 536.63 and 536.64
for rules relating to the notification of appeal rights and
processing.)
(e) Delegated authority. Authority delegated by this paragraph will
not be exercised unless the claims settlement or approval authority has
been assigned an office code.
Sec. 536.62 Claims over $100,000.
(a) Claims cognizable under 10 U.S.C. 2733 and this subpart, which
are meritorious in amounts over $100,000, will be forwarded to the
Commander, USARCS, who will negotiate a settlement subject to approval
by the Secretary of the Army, the Assistant Secretary of the Army
(Financial Management) as designee of the Secretary or designee, or
require the claimant to state the lowest amount that will be acceptable
and provide appropriate justification. Tender of a final offer by the
Commander, USARCS, constitutes an action subject to appeal. The
Commander, USARCS, will prepare a memorandum of law with
recommendations and forward the claim to the Secretary of the Army, or
designee, for final action. The Secretary, or designee, will either
disapprove the claim or approve it in whole or in part.
(b) If one or more claims arising from an incident are approved in
an amount over $100,000, only $100,000 will be paid from the Claims
Appropriation, after the execution of a settlement agreement. The
excess will be reported to the Claims Division, GAO, 441 G Street, NW,
Washington, DC 20548, together with documents listed in Sec. 536.35(a).
Sec. 536.63 Settlement procedures.
(a) Procedures. Approval and settlement authorities will follow the
procedures set forth in subpart B in paying, denying, or making final
offers on claims. A copy of the notification will be forwarded to
Commander, USARCS. The settlement authority will notify the claimant by
certified mail (return receipt requested) of a denial or final offer
and the reason therefor as set forth in Sec. 536.37. The letter of
notification will inform claimants of the following:
(1) They must accept or appeal as provided in paragraph (b) of this
section.
(2) The official who will act on the appeal and that the appeal
will be addressed to the settlement authority who last acted on the
claim.
(3) No form is prescribed for the appeal but claimants must fully
set forth the grounds for appeal, or state that they appeal on the
basis of the record as it exists at the time of denial or final offer.
(4) The appeal must be postmarked not later than six months after
the date of mailing of the notice of action on the claim. If the last
day of the appeal period falls on a day on which the post office is
closed, the next day on which it is open for business will be
considered the final day of the appeal period.
(b) Acceptance and appeal. For final offers, a settlement agreement
releasing the government from all liability will be mailed along with
the final offer notice. Claimants will be advised that they must either
submit an appeal or accept the offer within 180 days of the date of
mailing of the final offer notice. If they fail to do either, the offer
will be withdrawn, the claim will be denied and the file will be closed
without further recourse.
(c) Companion FTCA claims. Where a claim for the same injury has
been filed under subpart D, and the denial or final offer applies
equally to such claim, the letter of notification must advise the
claimant that any suit brought as to any portion of the claim filed
under the FTCA must be brought not later than 6 months from the date of
mailing of the notice of denial or final offer. Further, the claimant
must be advised that if suit is brought, action on any appeal under
this subpart will be held in abeyance pending final determination of
such suit.
Sec. 536.64 Action on appeal.
(a) The appeal will be examined by the settlement authority who
last acted on the claim or his or her successor, to determine if the
appeal complies with the requirements of this regulation. The
settlement authority will also examine the claims investigative file;
and decide whether additional investigation is required; ensure that
all allegations or evidence presented by the claimant, agent, or
attorney are documented in the file; and ensure that all pertinent
evidence is included in the file. If the claimant states that he or she
appeals, but does not submit supporting materials within the 180 day
appeal period, the appeal will be treated as being on the record as it
existed at the time of denial or final offer. Unless action under
paragraph (b) of this section is taken, the claim and complete
investigative file, including any additional investigation required,
and a tort claims memorandum will be forwarded to the appropriate
appellate authority for necessary action on the appeal.
(b) If the evidence in the file, including information submitted by
the claimant with the appeal and any necessary additional
investigation, indicates the appeal should be granted, in whole or in
part, the settlement authority who last acted on the claim or his or
her successor will attempt to settle the claim. If a settlement cannot
be reached, the appeal will be forwarded in accordance with paragraph
(a) of this section.
(c) As to an appeal that requires action by TJAG, TAJAG, or the
Secretary of the Army or designee, the Commander, USARCS may take the
action in paragraph (b) of this section or forward the claim together
with a recommendation for action. All matters submitted by the claimant
will be forwarded and considered.
(d) Since an appeal under this subpart is not an adversary
proceeding, no form of hearing is authorized. A request by the claimant
for access to documentary evidence in the claims file to be used in
considering the appeal should be granted unless access is not permitted
by law or regulation.
(e) If the appeal authority upholds a final offer or authorizes an
award on appeal from a denial of a claim, the notice of the appellate
authority's action will inform the claimant that they must accept the
award within 180 days of the date of mailing of the notice of the
appellate authority's action or the award will be withdrawn, the claim
will be deemed denied and the file will be closed without further
recourse.
Sec. 536.65 Cross-servicing of claims.
(a) Single-service claims responsibility. Per DODD 5515.8, the DOD
has assigned single-service responsibility to the various military
departments for the settlement of claims in specified countries.
(b) Claims settlement procedures. Per DODD 5515.3, the DOD has
directed that where a single Service has been assigned a country or
area claims responsibility, that Service will settle claims cognizable
under 10 U.S.C. 2733 in accordance with the departmental regulations of
that Service.
Sec. 536.66 Attorney fees.
In the settlement of any claim pursuant to 10 U.S.C. 2733 and this
subpart, attorney fees will not exceed 20 percent of the final cost to
the United States of the award. On structured settlements, the cash
payment due immediately upon final approval must be sufficient to allow
payment of attorneys fees equal to 20% of the total cost of the
settlement.
Sec. 536.67 Payment of costs, settlements, and judgments related to
certain medical malpractice claims.
(a) General. Costs, settlements, judgments cognizable under 10
U.S.C. 1089(f) for personal injury or death caused by any physician,
dentist, nurse, pharmacist, paramedical, or other supporting personnel
(including medical and dental technicians, nurse assistant, therapists,
and Red Cross volunteers meeting the criteria in AR 40-3, paragraph 2-
42) of DA will be paid provided--
(1) The alleged negligent or wrongful actions or omissions arose in
performance of medical, dental or related health care functions
(including clinical studies and investigations) within the scope of
employment;
(2) Such personnel furnish prompt notification and delivery of all
process served or received, and other documents, information, and
assistance as requested; and cooperate in the defense of the action on
its merits.
(b) Requests for indemnification. All requests for indemnification
under this section should be forwarded to the Commander, USARCS, for
action using procedures contained in this subpart. (See DODD 6000.6.)
Sec. 536.68 Payment of costs, settlements, and judgments related to
certain legal malpractice claims.
(a) General. Costs, settlements, and judgments cognizable under 10
U.S.C. 1054(f) for damages for injury or loss of property caused by any
attorney, paralegal, or other member of a legal staff within DA will be
paid provided that--
(1) The alleged negligent or wrongful actions or omissions arose in
connection with providing legal services while acting within the scope
of duties or employment,
(2) Such personnel furnish prompt notification and delivery of all
process served or received, and other documents, information, and
assistance as requested; and cooperate in the defense of the action on
its merits.
(b) Requests for indemnification. All requests for indemnification
under this section should be forwarded to the Commander, USARCS, for
action utilizing the procedures contained in this subpart.
Subpart D--Claims Cognizable Under the Federal Tort Claims Act
Sec. 536.69 Authority.
The statutory authority for this subpart is the FTCA (60 Stat.
842), (28 U.S.C. 2671-2680), as amended by the Act of 18 July 1966
(Pub. L. 89-506; 80 Stat. 306), Pub. L. 93-253, 16 March 1974 (88 Stat.
50), and Pub. L. 97-124, 29 December 1981, and as implemented by the
Attorney General's Regulations (28 CFR 14.1-14.11).
Sec. 536.70 Scope.
(a) This subpart prescribes the substantive bases and special
procedural requirements for the administrative settlement of claims
against the United States under the FTCA and the implementing Attorney
General's Regulations (DA Pam 27-162, appendix H) based on death,
personal injury, or damage to or loss of property that accrues on or
after 18 January 1967. If a conflict exists between this subpart and
the Attorney General's Regulations, the latter governs.
(b) Citations to cases interpreting and applying the FTCA are
contained in the Federal Tort Claims Handbook provided by USARCS. That
handbook should be used in conjunction with this subpart.
Sec. 536.71 Claims payable.
(a) Unless otherwise prescribed, claims for death, personal injury,
or damage to or loss of property (real or personal) are payable under
this subpart if the injury or damage is caused by negligent or wrongful
acts or omissions of military personnel or civilian employees of the DA
or DOD while acting within the scope of their employment under
circumstances in which the United States, if a private person, would be
liable to the claimant in accordance with the law of the place where
the act or omission occurred. The FTCA is a limited consent to
liability without which the United States is immune. Similarly, there
is no Federal cause of action created by the Constitution that would
permit a damage recovery because of the Fifth Amendment or any other
constitutional provision. Immunity must be expressly waived, as by the
FTCA.
(b) An ``employee of the Government'' (28 U.S.C. 2671) includes the
following categories of tortfeasors for which the Army is responsible:
(1) Military personnel (members of the Army), including but not
limited to--
(i) Members on full-time active duty in a pay status, including
members--
(A) Assigned to units performing active service.
(B) Serving as ROTC instructors. (Excludes Junior ROTC instructor
unless on active duty.)
(C) Serving as NG instructors or advisors.
(D) On duty or training with other Federal agencies, for example,
National Aeronautics and Space Administration, DOD, State, Navy, or Air
Force.
(E) Assigned as students or ordered into training at a nonFederal
civilian educational institution, hospital, factory, or other industry.
(This does not include members on excess leave.)
(F) On full-time duty at nonappropriated fund activities.
(G) Of the USAR and ARNG on active duty under Title 10.
(ii) Members of Reserve Units (other than members of the ARNG under
subpart F) during periods of inactive duty training and active duty
training, including ROTC cadets who are reservists while they are at
summer camp.
(iii) Members of the ARNG while engaged in training or duty under
Title 32 U.S.C. section 316, 502, 503, 504, or 505 for claims arising
on or after 29 December 1981.
(2) Civilian officials and employees of both the DOD and DA (there
is no practical significance to the distinction between the terms
``official'' and ``employee'') including but not limited to--
(i) Civil Service and other full-time employees of both the DOD and
DA paid from appropriated funds.
(ii) Contract surgeons (10 U.S.C. 1091 4022; AR 40-1, paragraph 4-
2) and consultants (10 U.S.C. 1091; AR 40-1, paragraph 4-3; CPR A-9;
FPM chapter 304) where ``control'' is exercised over physician's day to
day practice.
(iii) Employees of nonappropriated funds if the particular fund is
an instrumentality of the United States and thus a Federal agency. In
determining whether or not a particular fund is a ``Federal agency,''
consider whether the fund is an integral part of the Army charged with
an essential DA operational function and the degree of control and
supervision exercised by DA personnel. Members or users, as
distinguished from employees of nonappropriated funds, are not
considered Government employees; the same is true of family child care
providers. However, claims arising out of the use of certain
nonappropriated fund property, or the acts or omissions of family child
care providers, may be payable from such funds under subpart L as a
matter of policy, even when the user is not within the scope of
employment and the claim is not otherwise cognizable under any of the
other authorizations in this regulation.
(iv) Prisoners of war and interned enemy aliens.
(v) Civilian employees of the District of Columbia National Guard,
including those paid under ``service contracts'' from District of
Columbia funds.
(vi) Civilians serving as ROTC instructors paid from Federal funds.
(vii) National Guard technicians employed under 32 U.S.C. 709(a)
for claims accruing on or after 1 January 1969 (Pub. L. 90-486, 13 Aug.
1968; 82 Stat. 755).
(3) Persons acting in an official capacity for the DOD or DA
whether temporarily or permanently in the service of the United States
with or without compensation including but not limited to--
(i) ``Dollar a year'' personnel.
(ii) Members of advisory committees, commissions, boards, or the
like.
(iii) Volunteer workers in an official capacity acting in
furtherance of the business of the United States. The general rule with
respect to volunteers is set forth in 31 U.S.C. 665(b), which provides
that, ``No officer or employee of the United States shall accept
voluntary service for the United States or employ personal service in
excess of that authorized by law, except in cases of emergency
involving the safety of human life or the protection of property.''
Title 5, U.S.C., section 3111(c) specifically provides that student
volunteers employed thereunder will be considered Federal employees for
purposes of the FTCA. The same classification is applied by 10 U.S.C.
1588 to museum and family support program volunteers. The Army is
permitted to accept and use certain volunteer services in Army family
support programs as authorized by Pub. L. 98-94, September 24, 1983.
Red Cross volunteers meeting the criteria set forth in AR 40-3,
paragraph 2-42, are also considered to be employees of the United
States for claims purposes.
(iv) Loaned servants. Employees who are permitted to serve another
employer may be considered ``loaned servants,'' provided the borrowing
employer has the power to discharge the employee, control and direct
the employee, and decide how he or she will perform the tasks. Whoever
has retained those powers is liable for the employee's torts under the
principle of respondent superior. Where those elements of direction and
control have been found, the United States has been liable; for
example, for the torts of Government employees loaned for medical
training and emergency assistance and county and state employees
discharging Federal programs.
(c) ``Scope of employment'' means acting in ``line of [military]
duty'' (28 U.S.C. 2671) and is determined in accordance with principles
of respondent superior under the law of the jurisdiction in which that
act or omission occurred. Determination as to whether a person is
within a category listed in paragraph (b)(3) of this section will
usually be made together with the scope determination. Local law should
always be researched, but the novel aspects of the military
relationship should be kept in mind in making a scope determination.
(d) ``Line of duty'' determinations under AR 600-8-1 are not
determinative of scope of employment. ``Joint venture'' situations are
likely to be frequent where the Federal employee is performing
federally assigned duties but is under actual direction and control of
a non-Federal entity; for example, a Federal employee in training at a
non-Federal entity or ROTC instructors at civilian institutions. This
could also occur where the employee is working for another Federal
agency. Furthermore, dual purpose situations are commonplace where
benefits to the Government and the member or employee may or may not be
concurrent; for example, use of privately owned vehicles at or away
from assigned duty station, or permanent change of station with delay
en route. (See subpart E for the handling of certain claims arising out
of nonscope activities of members of the Army.)
Sec. 536.72 Law applicable.
The whole law of the place where the act or omission occurred,
including choice of law rules, will be applied in the determining
liability and quantum. Where there is a conflict between the local law
and an express provision of the FTCA, the latter governs.
Sec. 536.73 Subrogation.
Claims involving subrogation will be processed as prescribed in
Sec. 536.20(b) except where that section is inconsistent with the
provisions of this subpart or the Attorney General's regulations.
Sec. 536.74 Indemnity or contribution.
(a) Sought by the United States. It is the policy of the Department
of Justice that, if the claim arises under circumstances in which the
Government is entitled to contribution or indemnity under a contract of
insurance or the applicable law governing joint tortfeasors, the third
party will be notified of the claim and will be requested to honor its
obligation to the United States or to accept its share of joint
liability. (See Secs. 536.28 and 536.29.) If the issue of indemnity or
contribution is not satisfactorily adjusted, the claim will be
compromised or settled only after consultation with the Department of
Justice as provided in Sec. 536.75(s).
(b) Claims for indemnity or contribution. Claims for indemnity or
contribution from the United States will be compromised or settled
under this subpart, if liability exists under the applicable law,
provided the incident giving rise to such claim is otherwise cognizable
under this subpart. As to such claims where the exclusivity provisions
of the FECA may be applicable, see Sec. 536.75(s).
(c) ARNG vehicular claims.
(1) When a vehicle used by the ARNG, or a POV operated by a member
or employee of the ARNG, is involved in an incident under circumstances
that make this subpart applicable to the disposition of administrative
claims against the United States and results in personal injury, death,
or property damage, and a remedy against the State, or its insurer is
indicated, the responsible area claims authority will monitor the
action against the State or its insurer and encourage direct settlement
between the claimant and the State or its insurer.
(2) Where the State is insured, direct contact with State or ARNG
officials rather than the insurer is desirable. Regular procedures will
be established and followed wherever possible. Such procedures should
be agreed on by both local authorities and the appropriate claims
authorities subject to concurrence by Commander, USARCS. Such
procedures will be designed to ensure that local authorities and U.S.
authorities do not issue conflicting instructions for processing claims
and, whenever possible and in accordance with governing local and
Federal law, a mutual arrangement for disposition of such claims as in
paragraph (d) of this section is worked out.
(3) Amounts recovered or recoverable by claimant from any insurer
(other than claimant's insurer who has obtained no subrogated interest
against the United States) will be deducted from the amount otherwise
payable.
(d) Claims arising out of training activities of NG personnel.
Contribution may be sought from the State involved where it has waived
sovereign immunity or has private insurance that would cover the
incident giving rise to the particular claim. Where the State involved
rejects the request for contribution, the file will be forwarded to the
Commander, USARCS. The Commander, USARCS, is authorized to enter into
an agreement with a State, territory, or commonwealth to share
settlement costs of claims generated by the ARNG personnel or
activities of that political entity.
Sec. 536.75 Claims not payable.
Exclusions listed in paragraphs (a) through (l) of this section are
based upon the wording of 28 U.S.C. 2680. The remainder are based
either on statute or court decisions. The interpretation of these
exclusions is a Federal question to be decided under Federal law; for
example, the tort of assault and battery listed in 28 U.S.C. 2680(h)
should be interpreted in accordance with Federal common law principles,
and where State law differs, the former will prevail. Where a claim is
considered not payable under this paragraph, consult DA Pam 27-162,
chapter 8 for other methods of handling. A claim is not payable under
this subpart if it--
(a) Is based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation is valid (28
U.S.C. 2680(a)). Where no negligence on the part of any Government
employee is shown, and the only ground for the claim is the contention
that the same conduct by a private individual would be tortious, or
that the statute or regulation authorizing the project was invalid, the
sole question is the existence of the statute or regulation, not its
validity. However, a claim should not be denied based solely on this
exception without the prior approval of the Commander, USARCS.
(b) Is based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part of a
Federal agency or an employee of the Government, whether or not the
discretion involved is abused (28 U.S.C. 2680(a)). A claim should not
be denied solely because of this exception without the prior approval
of the Commander, USARCS.
(c) Arises out of the loss, miscarriage, or negligent transmission
of letters or postal matter (28 U.S.C. 2680(b)). It should be noted
that administrative settlement and payment of certain mail claims is
authorized under subparts C and F. Further, a limited indemnity may be
obtained through other channels for the loss or damage to registered,
insured, and C.O.D. mail (39 U.S.C. 5001, et seq.) (See DA Pam 27-162,
paragraph 8-61). The exclusion may not be applicable where State law
recognizes a cause of action for invasion of privacy.
(d) Arises with respect to the assessment or collection of any tax
or customs duty, or the detention of any goods or merchandise by any
customs or other law-enforcement officer (28 U.S.C. 2680(c)). Adequate
remedies are available to anyone aggrieved by the application of the
tax or customs laws of the United States (26 U.S.C. 6213), or the
claimant may pay the tax and sue in the U.S. Claims Court or the
appropriate U.S. District Court for a refund (28 U.S.C. 1491 and
1346(a)(1)). Other remedies are also available for the loss or
detention of goods or merchandise; for example, Tucker Act, bailment
provisions of the MCA (chap. 3), or destruction of evidence for
scientific analysis (AR 190-22, paragraph 3-8). With respect to the
detention of goods by a law enforcement officer, this exception may
apply to seizures in connection with an arrest.
(e) Is cognizable under the Suits in Admiralty Act (46 U.S.C. 740-
752) or under the Public Vessels Act (46 U.S.C. 781-790). To be
cognizable under this exclusion, the tort must have a maritime situs
and a maritime nexus, otherwise the tort is cognizable under the FTCA.
Maritime claims may be considered under The Army Maritime Claims
Settlement Act (10 U.S.C. 4801, et seq.) and subpart H, and they must
be settled or suit filed within 2 years of accrual of claim.
(f) Arises out of an act or omission of any employee of the
Government in administering the provisions of the Trading With the
Enemy Act (50 U.S.C. appendix 1-31; 28 U.S.C. 2680(e)). That Act
provides that the sole remedy of any person claiming money or other
property held by the Alien Property Custodian is as provided by that
Act. This exception should be broadly construed.
(g) Is for damages caused by the imposition or establishment of a
quarantine by the United States (28 U.S.C. 2680(f)). Claims for failure
to impose a quarantine or delay in enforcing a quarantine come within
the discretionary function exclusion discussed in paragraph (b) of this
section.
(h) Arises out of an assault or battery (28 U.S.C. 2680(h)).
(1) Often artful pleading is employed to create a cause of action
in negligence, such as alleging negligent supervision; such does not
create a separate cause of action as the exception bars a claim arising
out of an assault and battery even though there may have been negligent
supervision. Under the 1974 amendment to 28 U.S.C. 2680(h), the
activities of law enforcement officers that result in an assault or
battery are removed from this exception and can create a cause of
action. Such activities have accounted for most of the past claims and
litigation involving the assault and battery exception.
(2) Therefore, any claim alleging use of threatening or deadly
force, especially by a law enforcement officer, must be thoroughly
investigated to determine whether the nature, amount, and use of such
force was justified under the circumstances. (See paragraph (i) of this
section for definition of investigative or law enforcement officer).
Also, section 2680(h) does not apply to a claim arising out of
performance of medical, dental or related health care functions (10
U.S.C. 1089(e)).
(i) Arises out of false imprisonment, false arrest, malicious
prosecution or abuse of process (28 U.S.C. 2680(h)). This exception has
universal applicability to tall acts of false imprisonment, false
arrest, malicious prosecution, or abuse of process when committed by an
employee of the United States in the scope of employment. However, by
amendment to 28 U.S.C. 2680(h), this exception is not applicable on or
after 16 March 1974 to such actions when committed by an investigative
or law enforcement officer of the United States who is empowered by law
to execute searches, seize evidence, or make arrests for violations of
Federal law (88 Stat. 50). Such employees are considered to include
military police, but not post exchange detectives. Whether or not a
Federal law enforcement officer is involved, the defenses of probable
cause, reasonableness, and good faith are available, provided the
arrest is otherwise lawful under State law. DA Pam 27-162, paragraph 8-
8c, refers to certain claims based on unjust convictions.
(j) Arises out of libel, slander, misrepresentation, or deceit (28
U.S.C. 2680(h)). The misrepresentation exception has been broadly
construed to include negligent as well as intentional
misrepresentation. It has not been applied in situations involving
negligent failure to perform some operational task or to convey
information related to public safety independent of any secondary
misstatement. Where an erroneous medical diagnosis is made, the
exception does not apply because malpractice is the gravamen of the
action and the misrepresentation incidental. Similarly, the
misrepresentation exception was held not applicable where the United
States sold bomb casings to a scrap dealer expressly warranting that
they were safe and fit for scrap metal processing, and one of the
casings exploded. Before this exception can be applied in the
determination of an administrative tort claim, the claims investigation
must consider the nature of the Government's acts or omissions, as well
as the information upon which the claimant may have relied to his or
her detriment.
(k) Arises out of interference with contract rights (28 U.S.C.
2680(h)). This exception includes both interference with existing
contract rights and interference with prospective or executed contract
rights or economic advantage.
(l) Arises from the fiscal operations of the Department of the
Treasury or from the regulation of the monetary system (28 U.S.C.
2680(i)). This exception includes all disbursing operations of the DA
or other military services. However, such claims may be forwarded
through Army finance channels for consideration.
(m) Arises out of the combat activities of the military or naval
forces, or the Coast Guard, during time of war (28 U.S.C. 2680(j)).
``Combat activities'' is defined in the glossary.
(n) Arises in a foreign country (28 U.S.C. 2680(k)). There is no
clear delineation of what constitutes a foreign country. However, the
exception has been held applicable to claims arising in a leased
military base in Newfoundland; in the American Embassy in Bangkok,
Thailand; on Okinawa under the de facto sovereignty of the United
States; on Kwajalein under the trusteeship of the United States; and to
various occupied countries. (See subpart J and DA Pam 27-162, paragraph
821, for handling of certain claims arising in a foreign country.)
Where the actionable negligence has occurred in the United States and
only the consequences occurred in a foreign country, this exception has
not been applied.
(o) Arises from the activities of the Tennessee Valley Authority
(28 U.S.C. 2680(i) and 16 U.S.C. 831 et seq.).
(p) Arises from the activities of the Panama Canal Commission (28
U.S.C. 2680(m)). (See 76A Stat. 22 through 25, and 22 U.S.C. 3761.)
Claims accruing after the effective date of the Panama Canal Treaty (1
October 1979) may be cognizable under either the FCA or the MCA.
(q) Arises from the activities of a Federal land bank, a Federal
intermediate credit bank, or bank for cooperatives (28 U.S.C. 2680(n)).
(r) Is for the personal injury or death of a member of the Armed
Forces of the United States incurred incident to service, or for damage
to a member's property incurred incident to service (Feres v. United
States, 340 U.S. 135 (1950)). (See Sec. 536.25 and DA Pam 27-162,
paragraphs 8-26 through 8-28.) Currently the most significant
justification for the incident to service doctrine is the availability
of alternative compensation systems, and the fear of disrupting the
military command relationship. Other supportive factors often cited by
the courts are the service member's duty status, location, and receipt
of military benefits at the time of the incident.
(1) The exception applies to members of the Army, Navy, Air Force,
Marine Corps, and Coast Guard, including the Reserve Components of the
Armed Forces. (See 10 U.S.C. 261.) The exception also applies to
service members on the Temporary Disability Retired List, on
convalescent leave, and on the extended enlistment program; to service
academy cadets; and to members of visiting forces in the United States
under the SOFA between the parties to the North Atlantic Treaty or
similar international agreements.
(2) The incident to service doctrine has been extended to
derivative claims where the directly injured party is a service member.
Third party indemnity claims are barred.
(s) Is for the personal injury or death of a Government employee
for whom benefits are provided by the FECA (5 U.S.C. 8101-8150). (See
DA Pam 27-162, paragraph 8-25.) Who is a Government employee under the
Act is defined in the Act itself (5 U.S.C. 8101), but the term is not
limited to Federal Civil Service employees. The term ``Government
employee'' can include certain ROTC cadets (5 U.S.C. 8140) and State or
local law enforcement officers engaged in apprehending a person for
committing a crime against the United States (5 U.S.C. 8191), certain
nurses, interns, or other health care personnel, for example, student
nurses, (5 U.S.C. 5351, 8144), and certain Army Community Service
Volunteers (10 U.S.C. 1588; AR 608-1).
(1) This Act provides that benefits paid under this Act are
exclusive and instead of all other liability of the United States,
including that under a Federal tort liability statute (5 U.S.C.
8116(c)). It extends to derivative claims, subsequent malpractice for
treatment of a covered injury, injuries for which there is no scheduled
compensation, and employee harassment claims for which other remedies
are available (42 U.S.C. 2000e).
(2) Is from a federal civilian employee based on a allegation of a
violation of some employment right or is otherwise one for which the
rules governing federal civilian employment provide a comprehensive
remedy. Such claims often allege emotional distress or psychological
injury as a result of the alleged misconduct. Administrative remedies
under the civil service regulations are the employee's exclusive
remedy. Bush v. Lucas 462 U.S. 367 (1983). This exception does not bar
third party indemnity claims. When there is doubt as to whether or not
this exception applies, the claim should be forwarded through claims
channels to the Commander, USARCS, for an opinion.
(t) Is for the personal injury or death of an employee including
nonappropriated fund employees, for whom benefits are provided by the
Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 901-
950). An employee of a nonappropriated fund instrumentality is covered
by the Act (5 U.S.C. 8171). This is exclusive for covered employees,
similar to that under the FECA.
(u) Is for the personal injury or death of any employee for whom
benefits are provided under any workmen's compensation law if the
premiums of the workmen's compensation insurance are retrospectively
rated and charged as an allowable, allocable expense to a cost-type
contract. (See Sec. 536.28 and DA Pam 27-162, paragraph 8-25.) If, in
the opinion of an approval or settlement authority the claim should be
considered payable (for example, the injuries did not result from a
normal risk of employment or adequate compensation is not payable under
workmen's compensation laws), the file will be forwarded with
recommendations through claims channels to the Commander, USARCS who
may authorize payment of an appropriate award.
(v) Is for taking of property as by technical trespass or
overflight of aircraft and of a type contemplated by the Fifth
Amendment to the U.S. Constitution, or otherwise constitutes ataking.
(See paragraph 2c of AR 405-15 and DA Pam 27-162, paragraphs 8-46, 8-
74, and 8-75.)
(1) The Fifth Amendment to the U.S. Constitution provides in part
``. . . . nor shall private property be taken for public use, without
just compensation.''
(2) Claims for takings without just compensation are action-able
under the Tucker Act (28 U.S.C. 1346(a)(2) and 1491, Appendix. A., 24
Stat. 505 (1887)). Prior to referring a claimant to a Tucker Act
remedy, the applicability of the procedures under AR 405-15 should be
considered by referral to appropriate Corps of Engineers authorities.
(See DA Pam 27-162, paragraph 8-75.)
(w) Is for damage from or by flood or flood waters at any place (33
U.S.C. 702c). This exception is broadly construed and includes
multipurpose projects and all phases of construction and operation.
(x) Is for damage to property or for any death or personal injury
occurring directly or indirectly as a result of the exercise of
performance of, or failure to exercise or perform, any function or duty
by any Federal agency or employee of the Government to carry out the
provisions of the Federal Civil Defense Act of 1950 during the
existence of a civil defense emergency (50 U.S.C. Appendix 2291-2297).
(y) Is based solely upon a theory of absolute liability or
liability without fault. Either a negligent or wrongful act is required
by the FTCA, and some type of malfeasance or nonfeasance is required
(Dalehite v. United States, 346 U.S. 15 (1953); Laird v. Nelms, 406
U.S. 797 (1972)). Thus, liability does not arise by virtue either of
United States ownership of an inherently dangerous commodity or of
engaging in extra-hazardous activity.
(z) Is for patent or copyright infringement. (See AR 27-60).
(aa) Claims for damage to property of a State, commonwealth,
territory, or the District of Columbia caused by ARNG personnel engaged
in training or duty under 32 U.S.C. 316, 502, 503, 504, or 505 who are
assigned to a unit maintained by that State, commonwealth, territory,
or the District of Columbia will not be paid without the express
approval of the Commander, USARCS.
(bb) Is for damage to property or for any death or personal injury
arising out of the activities of any Federal agency or employee of the
Government in carrying out the provisions of the Federal Disaster
Relief Act of 1954 (P.L. 93-288, Sec. 403, 88 Stat. 143). The Act
requires the local beneficiary (State or local government) to hold the
Government harmless and to assume the defense of all claims arising
from the removal of debris and wreckage from public or private
property.
(cc) Arises from activities that present a nonjusticiable political
question. The courts search for six factors, as follows, any one of
which is grounds for dismissal:
(1) A commitment of the issue to a coordinate branch of Government
by the text of the Constitution.
(2) A lack of judicially discoverable and manageable standards for
resolving it.
(3) The impossibility of deciding without a policy determination
calling for non-judicial discretion.
(4) The impossibility of undertaking independent resolution without
expressing lack of respect for coordinate branches of Government.
(5) An unusual need for unquestioning adherence to a political
decision already made.
(6) The potential for embarrassment from multiple pronouncements by
various departments on one question.
Sec. 536.76 Claims under other laws and regulations.
Any claim that may be settled under any exclusive or specific
authorization discussed in DA Pam 27-162, chapter 8, will be settled
under such authority in preference to settlement under this subpart.
Guidance concerning application of this policy will be obtained from
USARCS.
Sec. 536.77 Procedures.
(a) General. Unless inconsistent with the provisions of this
subpart, the procedures for the investigation and processing of claims
set forth in subpart B will be followed.
(b) Claims arising out of tortious conduct by ARNG personnel
defined in subpart 536.71(b)(1)(iii).
(1) Notification and investigation. The procedures in Secs. 536.97
and 536.98 will be followed in NG claims arising under the FTCA.
(2) Claims against the U.S. Government received by agencies of the
State. These claims will be expeditiously forwarded through the State
adjutant general to the appropriate U.S. Army area claims office in
whose geographic area the incident occurred.
(c) Statute of limitations. (1) To be settled under this subpart, a
claim against the United States must be presented in writing to the
appropriate Federal agency within 2 years of its accrual.
(2) For statute of limitations purposes, a claim will be deemed to
have been presented when the appropriate Federal agency (as defined in
the glosssary) receives from a claimant or his or her duly authorized
agent or legal representative, an executed SF 95 or written
notification of an incident, together with a claim for money damages,
in a sum certain, for damage to or loss of property or personal injury
or death. For Federal tort claims arising out of activities of the NG,
receipt of a written claim by any full time officer or employee of the
NG will be considered proper receipt.
(3) A claim received by an official of the DOD will be transmitted
without delay to the nearest Army claims processing office or area
claims office. Inquiries concerning applicability of the statute of
limitations to claims filed with the wrong Federal Agency will be
referred to USARCS for resolution.
(d) Claims within settlement authority of USARCS of the Attorney
General. (1) A copy of each of the type of claims described below will
be forwarded immediately to the Commander, USARCS. (Subsequent
documents should be forwarded or added in accordance with
Sec. 536.22(b)(2).)
(i) Claims that appear to be of a type that must be brought to the
attention of the Attorney General in accordance with his or her
regulations (28 CFR 14.6).
(ii) A claim in which the demand exceeds $25,000 or the total
amount of all claims, actual or potential, from a single incident
exceeds $25,000 $50,000.
(2) USARCS is responsible for the monitoring and settlement of such
claims and will be kept informed of the status of the investigation and
processing thereof. Direct liaison and correspondence between USARCS
and the field claims authority or investigator is authorized on all
claims matters and assistance will be furnished as required.
(e) Non-Army claims. Claims based on acts or omissions of employees
of the United States, other than military and civilian personnel of the
DA, civilian personnel of the DOD, and employees of nonappropriated
fund activities of the DA will be transmitted forthwith to the nearest
official of the employing agency; the claimant will be advised of the
referral. (See Sec. 536.18(c) and (d) for further guidance when more
than one Federal agency is involved.)
(f) Acknowledgment of claim. (1) The claimant and his or her
attorney will be kept informed by personal contact, telephonic contact,
or mail of the receipt of his or her claim and the status of the claim.
Formal acknowledgment of the claim in writing is required only where
the claim is likely to result in litigation or is presented in an
amount exceeding $15,000. In this event, the letter of acknowledgment
will state the date of receipt of the claim by the first agency of the
Army receiving the claim.
(2) If it is reasonably clear to the office acknowledging receipt
that a claim filed under the FTCA is not cognizable thereunder; for
example, it is a maritime claim under chapter 8, or it falls under
subparts C or F, the acknowledgment will contain a statement advising
the claimant of the statute under which his or her claim will be
processed. If it is not clear which subpart applies, a statement to
that effect will be made and the claimant will be promptly advised when
a decision is made. However all potential maritime claims will be
handled in accordance with Sec. 536.21(b)(5).
(3) When a claim has been amended as set forth in
Sec. 536.20(f)(4), the amendment will be acknowledged in all cases.
Also, the claimant will be informed that the amendment constitutes a
new claim insofar as concerns the 6 months in which the DA is granted
the authority to make a final disposition under 28 U.S.C. 2675(a) and
the claimant's option thereunder will not accrue until 6 months after
the filing of the amendment.
(4) When a claim is improperly presented, is incomplete, or
otherwise does not meet the requirements set forth in section
536.20(d), the claimant or his or her representative will be promptly
informed in writing of the deficiencies and advised that a proper claim
must be filed within the 2 year statute of limitations.
(g) Investigation. Claims cognizable under this regulation will be
investigated and processed on a priority basis in order that settlement
if indicated may be accomplished within the 6 months prescribed by
statute.
(h) Advice to claimant. (1) A full explanation of claims procedures
and of the rights of the claimant will be made to the extent
necessitated by the amount and nature of the claim.
(2) In a case where litigation is likely, or where this course of
action is preferred by the claimant, and it appears to be a proper case
for administrative settlement, the claimant will be advised as to the
advantages of administrative settlement. If the claim is within the
jurisdiction of a higher settlement authority, the claim will be
discussed with such authority prior to the furnishing of such advice.
The claimant should be familiarized with all aspects of administrative
settlement procedures including the administrative channels through
which the claim must be processed for approval. He or she may be
advised that administrative processing can result in more expeditious
processing, whereas litigation may take considerable time, particularly
in jurisdictions with crowded dockets.
(3) If appropriate, the claimant may be informed that a tentative
settlement can be reached for any amount, but that awards in excess of
$200,000 are subject to approval by the Attorney General. The claimant
should be advised that administrative filing of the claim protects him
or her under the statute of limitations for purpose of litigation and
that a suit can be filed within 6 months after the date of mailing of
notice of final denial by the DA, thus potentially allowing
negotiations to continue indefinitely. An attorney representing a
claimant should be advised of the limitations on fees for purposes of
administrative settlement (20 percent) and litigation (25 percent) and
that there is no jury trial under the FTCA.
(i) Notification to claimant of action on claim.
(1) The filing of an administrative claim and its denial are
prerequisite to filing suit. Any suit must be filed not later than 6
months after notification by certified or registered mail of the denial
of the administrative claim. Failure of a settlement authority to take
final action on a properly filed claim within 6 months may be treated
by the claimant as a final denial for the purposes of filing suit. If
the claimant has provided insufficient documentation to permit
evaluation of the claim, written notice should be given to this effect.
Since administrative settlements are a voluntary process, the preferred
method of negotiating is to attempt to exchange information on an open
basis.
(2) Upon final denial of a claim, or upon rejection by claimant of
a partial allowance, if further efforts to reach a settlement are not
considered feasible (Sec. 536.21(b)(1)), the settlement authority will
inform the claimant of the action on his or her claim by certified or
registered mail. Notification will be made as set forth in
Sec. 536.37(b). A copy of this notification will be furnished to
Litigation Division, OTJAG, and the Commander, USARCS. In all medical
malpractice cases, a copy will be furnished to the Consultation Case
Review Branch (CCRB), Office of the Surgeon Command and the SJA, Health
Services Command.
(3) If a claim has been presented to the DA and, also, to other
Federal agencies, without any notification to the DA of this fact,
final action taken by the DA prior to that of any other agency is
conclusive on a claim presented to other agencies unless another agency
decides to take further action to settle the claim. Such agency may
treat the matter as a reconsideration under 28 CFR 14.9(b) unless suit
has been filed. (See Sec. 536.82.) The foregoing applies likewise to
Army claims in which another Federal Agency has taken final action.
(4) If, after final denial by another agency, a claim is filed with
the Army, the new submission will not toll the 6 months limitation for
filing suit unless the DA treats the second submission as a request for
reconsideration under Sec. 536.82.
(5) In those cases where claimants exercise their option under 28
U.S.C. 2675(a) and file suit after six months but before final agency
action, a formal denial notice will be sent to the claimant promptly
upon notification of the suit unless the Assistant United States
Attorney responsible for litigation of the suit expressly requests that
such action not be taken.
Sec. 536.78 Payment of claims.
(a) Awards of $2,500 or less. Awards of $2,500 or less are paid
from the claims appropriation. For procedures, see Secs. 536.32 through
536.35. An explanation of various claims appropriations to be used is
in Sec. 536.34.
(b) Awards in excess of $2,500. Payment of awards in excess of
$2,500 will be accomplished by forwarding the documents listed in
Sec. 536.35(b) to the Claims Division, GAO, 441 G Street, NW.,
Washington, DC 20548. When an award is in excess of $25,000, evidence
that the award has been approved by the Attorney General or designee is
also required. (For procedures, see Secs. 536.32 through 536.35.)
(c) Attorney as payee. If a claimant is represented by an attorney,
both the claimant and the attorney will be designated as ``payees'' on
the voucher (SF 1145) and the check will be delivered to the attorney
whose address appears on the voucher.
(d) Broker as payee. If the settlement requires the purchase of an
annuity and establishment of a reversionary trust, the broker may be
named as payee and required to dispose of the amount paid as set forth
in the settlement agreement.
(e) Attorneys fees. Attorneys' fees are limited by 28 U.S.C. 2678
to not more than 20 percent of any award, compromise, or settlement.
Sec. 536.79 Acceptance of award.
The acceptance by the claimant of an award, compromise, or
settlement made pursuant to this subpart will be final and conclusive
for all purposes and will constitute a complete release of any claim
against the United States and against the military or civilian
personnel of the DA, or civilian employees of the DOD whose act or
omission gave rise to the claim by reasons of the same subject matter.
(See Sec. 536.32 on preparing a settlement agreement.)
Sec. 536.80 Delegation of authority.
(a) Settlement authority. (1) Subject to the approval of the
Attorney General for payments in excess of $200,000 in a single claim
or where the total value of all claims and potential claims arising out
of a single incident exceeds $200,000 or as otherwise required (see
Sec. 536.81), the following are delegated authority to settle (i.e. pay
in full, pay in part or deny) and make final offers on claims under
this subpart:
(i) TJAG.
(ii) TAJAG.
(iii) The Commander, USARCS or designees.
(2) Unless the Commander, USARCS alters the delegation, heads of
area claims offices or their designated claims Judge Advocates/claims
attorneys are delegated authority to approve and pay in full or in
part, to disapprove, and to make final offers on claims presented for
$25,000 or less. These offices are also authorized to approve and pay,
regardless of the amount claimed, an agreed award of $25,000 or less,
provided that the total value of all claims and potential claims
arising out of a single incident does not exceed $50,000.
(3) Notice of disapproval or final offer issued by an authority
listed in paragraph (a) (1) and (2) of this section will be in
accordance with Secs. 536.5(f) and 536.37 and must be accompanied by an
explanation that the claimant may submit a written request for
reconsideration (Sec. 536.82), in lieu of filing suit, to the
Commander, USARCS (through the office issuing the disapproval or final
offer) provided that the request is received prior to the expiration of
the 6-month period provided in 28 U.S.C. 2401(b). Once received, the
claimant will be advised in writing that the request will suspend the
option to bring suit under 28 U.S.C. 2675(a) for 6 months from the date
the request was received.
(4) Heads of claims processing offices with approval authority are
delegated authority to approve and pay, in full or in part, claims
presented for $5,000 or less and to compromise and pay, regardless of
the amount claimed, an agreed award of $5,000 or less, provided that
the total value of all claims and potential claims arising out of a
single incident does not exceed $25,000 and that the claimant agrees to
accept the award in full satisfaction of the claim.
(b) Office code. Authority delegated by this paragraph will not be
exercised unless the claims settlement or approval authority has been
assigned an office code.
Sec. 536.81 Consultation with the Department of Justice.
(a) Consultation with the Department of Justice is required when,
in the opinion of the Federal agency--
(1) A new precedent or a new point of law is involved;
(2) A question of policy is or may be involved;
(3) The United States is or may be entitled to indemnity or
contribution from a third party, and the agency is unable to adjust the
third party claim;
(4) The total amount to be paid in all claims or potential claims
arising out of the same transaction will or may exceed $200,000;
(5) For any reason, the compromise of a particular claim, as a
practical matter, will control the disposition of actual or potential
claims arising out of a single incident in which the amount to be paid
may exceed $25,000 to $200,000; or
(6) Where the United States, an employee, agent, or cost-plus
contractor is involved in litigation based on a claim arising out of
the same transaction.
(b) Claims requiring consultation with, or approval by the
Department of Justice will be forwarded to the Commander, USARCS. The
Commander will refer such claims to the Assistant Attorney General,
Civil Division, Department of Justice in accordance with section 14.7,
Attorney General Regulations. (See DA Pam 27-162, appendix H.)
Sec. 536.82 Reconsideration.
(a) Original approval or settlement authority.
(1) Reconsideration. An original approval or settlement authority
may reconsider the denial of or final offer on a claim under the FTCA
upon request of the claimant, the claimant's authorized agent, or the
claimant's legal representative.
(2) Settlement correction. An original approval or settlement
authority may reopen and correct his or her action on a claim that was
previously settled in whole or in part (even where a settlement
agreement has been executed) when an error contrary to the mutual
understanding of the parties is discovered in the original action
(e.g., a claim is settled for $15,000 but the settlement agreement was
typed to read $1,500 and the error is not discovered until the file is
being prepared for payment). If appropriate, a corrected payment will
be made. The approval or settlement authority will reopen his or her
action on a claim when he or she has reason to believe that a
settlement was obtained by means of fraud by the claimant (or
claimant's authorized agent or legal representative) and, if
substantiated, will correct his or her action. The basis for any
correction of an action will be stated in a memorandum which will be
included in the file.
(b) A successor approval or settlement authority.
(1) Reconsideration. A successor approval or settlement authority
may reconsider the denial of or final offer in a claim under the FTCA
upon request of the claimant, the claimant's authorized agent, or the
claimant's legal representative, only on the basis of fraud,
substantial new evidence, errors in calculation or mistake
(misinterpretation) of law.
(2) Settlement correction. A successor approval or settlement
authority may reopen and correct a predecessor's action on a claim
which was previously settled in whole or in part for the same reasons
as an original authority, as stated above.
(c) All requests for reconsideration of a denial or final offer by
a command claims service or area claims office in which full relief is
not granted will be forwarded to the Commander, USARCS for action, with
any additional investigative material and legal analysis generated by
the request.
(d) A request for reconsideration should indicate fully the legal
or factual basis asserted as grounds for relief. Following completion
of any investigation or other action deemed necessary for an informed
disposition of the request, the approval or settlement authority will
reconsider the claim and attempt to settle it by granting such relief
as may appear warranted. When further settlement efforts appear
unwarranted, the entire file with a memorandum of opinion will be
referred through claims channels as outlined in Sec. 536.31. If a
higher claims authority is unable to grant the relief requested, he or
she will forward the claim with the recommendation to the Commander,
USARCS, and inform the claimant of such reference.
(e) A request for reconsideration must be filed prior to the
commencement of suit and prior to the expiration of the 6-month period
provided in 28 U.S.C. 2401(b). Upon timely filing, the appropriate
authority will have 6 months from the date of filing in which to make a
final disposition of the request, and the claimant's option under 28
U.S.C. 2675(a) will not accrue until 6 months after the filing of the
request. The action on the request will be effected as set forth in
Sec. 536.77(i).
(f) Action upon a request for reconsideration by the appropriate
authority (either affirming the prior action or granting full or
partial relief) constitutes final administrative disposition of a
claim. No further requests for reconsideration will be allowed except
on the basis of fraud. Attempted further requests for reconsideration
on other grounds will not toll the 6-month period provided in 28 U.S.C.
2401(b).
Subpart E--Claims Involving Government Vehicles and Property Not
Cognizable Under Other Law
Sec. 536.83 Statutory authority.
The statutory authority for this subpart is contained in the act of
9 October 1962 (76 Stat. 767, 10 U.S.C. 2737). This statute is commonly
called the ``Nonscope Claims Act.'' For the purposes of this subpart, a
Government installation is a facility having fixed boundaries owned or
controlled by the Government, and a vehicle includes every description
of carriage or other artificial contrivance used, or capable of being
used, as a means of transportation on land (1 U.S.C. 4).
Sec. 536.84 Scope.
(a) This subpart prescribes the substantive bases and special
procedural requirements for the administrative settlement and payment,
in an amount not more than $1,000, of any claim against the United
States not cognizable under any other provision of law for damage or
loss of property, or for personal injury or death caused by a member or
employee of the DA incident to the use of a U.S. vehicle at any
location or incident to the use of other U.S. property on a Government
installation.
(b) Any claim in which there appears to be a disputed issue
relating to whether the employee was acting within the scope of
employment will be considered under subparts C, D, and F of this part.
Only when all parties, to include an insurer, agree that there is no
``in scope'' issue will this subpart be used.
Sec. 536.85 Claims payable.
(a) General. A claim for personal injury, death, or damage or loss
of property, real or personal, is payable under this subpart when--
(1) Caused by the act or omission, negligent, wrongful, or
otherwise involving fault of a member of the DA or the ARNG, or a
civilian employee of the DA or the ARNG--
(i) Incident to the use of a vehicle of the United States at any
place.
(ii) Incident to the use of any other property of the United States
on a Government installation.
(2) The claim may not be settled under any other claims statute and
claims regulation available to the DA for the administrative settlement
of claims.
(3) The claim has been determined to be meritorious, and the
approval or settlement authority has obtained a settlement agreement in
an amount not in excess of $1,000 in full satisfaction of the claim
prior to approval of the claim for payment.
(b) Personal injury or death. A claim for personal injury or death
is allowable only for the cost of reasonable medical, hospital, or
burial expenses actually incurred and not otherwise furnished or paid
by the United States.
(c) Property loss or damage. A claim for damage or loss of property
is allowable only for the cost of reasonable repairs or value at time
of loss, whichever is less.
Sec. 536.86 Claims not payable.
(a) A claim is not allowable under this subpart that--
(1) Results wholly or partly from the negligent or wrongful act of
the claimant or his or her agent or employee. The doctrine of
comparative negligence is not applicable.
(2) Is for medical, hospital, and burial expenses furnished or paid
by the United States.
(3) Is for any element of damage pertaining to personal injuries or
death other than provided in Sec. 536.85(b). All other items of damage;
for example, compensation for loss of earnings and services, diminution
of earning capacity, anticipated medical expenses, physical
disfigurement, and pain and suffering are not payable.
(4) Is for loss of use of property or for the cost of a substitute
property; for example, a rental.
(5) Is legally recoverable by claimant under an indemnifying law or
indemnity contract. If the claim is legally recoverable in part, that
part recoverable by the claimant is not payable.
(6) Is a subrogated claim.
(b) Examples of claims not allowable under this subpart are as
follows:
(1) The claimant has collision insurance covering his or her
automobile with a deductible amount of $100. While the claimant is
sitting in the vehicle, which is properly parked, it is struck from the
rear by an Army truck operated by a DA civilian who had misappropriated
the Government vehicle. The claimant sustains personal injuries
requiring hospitalization for 6 weeks during which actual medical and
hospital expenses are incurred in the amount of $1,200. He or she has
no medical or hospitalization insurance. The damage to the vehicle
totals $300. The claimant's insurance carrier reimburses him or her
$200 for the vehicle damage and becomes subrogated in that amount under
the policy terms. The claimant files a claim in the amount of $1,500,
alleging $300 for property damage to the automobile and $1,200 for
medical and hospital expenses. The claim is allowable in the total
amount of $1,000, consisting of $100, the insurance deductible for
property damage, and $900 of the medical and hospital expenses. The
amount claimed for medical and hospital expenses and for property
damage merely constitutes separable interests in a single claim that
may not be allowed in an amount in excess of $1,000 under this subpart.
The claimant's insurer is not a proper party claimant, and no payment
is allowable for the insurer's subrogated interest.
(2) Claimant has medical and hospitalization insurance that
entitles him or her to reimbursement of up to $500 for the reasonable
cost of medical and hospital expenses incurred for personal injuries.
While visiting at an Army installation the claimant is wounded by the
negligent discharge of a Government issue caliber .45 pistol by a
soldier who had stolen the weapon. The claimant is hospitalized at a
civilian hospital and has incurred medical and hospital expenses of
$750. The claimant may be paid $250, the amount allowable for
reasonable medical and hospital expenses actually incurred after
deduction of $500 legally recoverable by him or her under the insurance
policy.
Sec. 536.87 When claim must be presented.
A claim may be settled under this regulation only if it is
presented in writing within 2 years after it accrues.
Sec. 536.88 Procedures.
So far as not inconsistent with this part, the procedures for the
investigation and processing of claims contained in subpart B will be
followed.
Sec. 536.89 Settlement agreement.
A claim may not be paid under this part unless the amount tendered
is accepted by the claimant in full satisfaction. A settlement
agreement is required before payment. (See Sec. 536.32.)
Sec. 536.90 Delegation of authority.
(a) Settlement authority. The following are delegated authority to
pay up to $1,000 in settlement of claims and to disapprove claims
presented in any amount under this subpart:
(1) TJAG.
(2) TAJAG.
(3) The Commander, USARCS, or his designees.
(4) The SJA or chief of the command claims service of the following
commands:
(i) USAREUR.
(ii) Eighth U.S. Army, Korea.
(iii) WESTCOM.
(iv) USARSO.
(5) Area claims offices.
(b) Approval authority. Claims processing offices with approval
authority are delegated authority to approve and pay, in full or in
part, claims presented for $1,000 or less and to compromise and pay,
regardless of amount claimed, an agreed award of $1,000 or less.
(c) Exercise of authority. Authority delegated by this paragraph
will not be exercised unless the claims settlement or approval
authority has been assigned an office code.
Sec. 536.91 Reconsideration.
(a) An original approval or settlement authority may reconsider the
quantum of a claim upon request of the claimant or someone acting in
his behalf. In the absence of such a request, an approval or settlement
authority may on his or her own initiative reconsider the quantum of a
claim. Reconsideration may occur even in a claim that was previously
disapproved in whole or in part (even though a settlement agreement has
been executed) when it appears that his or her original action was
incorrect in law or fact based on the evidence of record at the time of
the action or subsequently received. If he or she determines that the
original action was incorrect, he or she will modify the action and, if
appropriate, make a supplemental payment. If the original action is
determined correct, the claimant will be so notified. The basis for
either action will be stated in a memorandum included in the file.
(b) An approval or settlement authority may reconsider the
applicability of this subpart to a claim upon request of the claimant
or someone acting in his behalf, or on his or her own initiative. Such
reconsideration may occur even though all parties had previously agreed
per Sec. 536.84 when it appears that this agreement was incorrect in
law or fact based on the evidence of record at the time of the
agreement or subsequently received. If he or she determines the
agreement to be incorrect, the claim will be reprocessed under the
applicable subpart of this part. If he or she determines the agreement
to have been correct, that is, that this subpart is applicable, he or
she will so advise the claimant. This advice will include reference to
any appeal or judicial remedies available under the subpart which the
claimant alleges the claim should be processed under.
(c) A successor or higher approval or settlement authority may also
reconsider the original action on a claim under paragraph (a) or (b) of
this section, but only on the basis of fraud, substantial new evidence,
errors in calculation, or mistake (misinterpretation) of law.
(d) A request for reconsideration should indicate fully the legal
or factual basis asserted as grounds for relief.
Subpart F--Claims Arising From Activities of the Army National
Guard
Sec. 536.92 Statutory authority.
(a) The statutory authority for this subpart is contained in the
Act of 13 September 1960 (74 Stat. 878, 32 U.S.C. 715), commonly
referred to as the ``National Guard Claims Act'' as amended by Pub. L.
90-486, 13 August 1968, (82 Stat. 756), Pub. L. 90-525, 26 September
1968 (82 Stat. 877), Pub. L. 901-312, 8 July 1970 (84 Stat. 412), and
Pub. L. 93-336, 8 July 1974, and the Act of 8 September 1961 (75 Stat.
488, 10 U.S.C. 2736) as amended by Pub. L. 90-521, 26 September 1968
(82 Stat. 874) and as amended by Pub. L. 98564, 20 October 1984.
(b) For purposes of this subpart, the following terminology
applies:
(1) ARNG personnel. A member of the ARNG engaged in training or
duty under 32 U.S.C. sec 316, 502, 503, 504, 505, or 709.
(2) Claimant. An individual, partnership, association, corporation,
country, State, commonwealth, territory, or a political subdivision
thereof, or the District of Columbia presenting a claim and meeting the
conditions set forth in Sec. 536.20. The term does not include the U.S.
Government, any of its instrumentalities, except as prescribed by
statute, or a State, commonwealth, territory, or the District of
Columbia, which maintains the unit to which the ARNG personnel causing
the injury or damage are assigned. This exclusion does not ordinarily
apply to a unit of local government that does not control the ARNG
organization involved. As a general rule, a claim by a unit of local
government other than a State, commonwealth, or territory will be
entertained unless the item claimed to be damaged or lost was procured
or maintained by State, commonwealth, or territorial funds.
(3) State. As used in this subpart the term ``state'' includes
selfgoverning commonwealths and territories of the United States; for
example, Puerto Rico and the Virgin Islands.
Sec. 536.93 Scope.
(a) This subpart is applicable in all places and sets forth the
procedures to be followed in the settlement and payment of claims for
death, personal injury, or damage, loss, or destruction of property
caused by--
(1) Members or employees of the ARNG.
(2) Noncombat activities of the ARNG when engaged in training or
duty under 32 U.S.C. sec. 316, 502, 503, 504, 505, or 709, provided
such claim is not for personal injury or death of a member of the Armed
Forces or Coast Guard.
(3) An employee whose injury or death is incident to service.
(b) A claimant dissatisfied with an administrative settlement under
this subpart as the result of activities of the NG of a State,
Commonwealth, or Territory is not entitled to judicial relief in an
action against the United States. Whether he or she has a legal cause
of action or may file an administrative claim against such political
entity depends upon controlling local law.
(c) Claims arising out of the activities of the ARNG when
performing duties at the call of the governor of a State maintaining
the unit are not cognizable under this subpart or any other law,
regulation, or appropriation available to the Army for the payment of
claims. Such claims should be returned or referred to the authorities
of the State, for whatever action they choose to take and claimants
should be informed of the return or referral. Care should be taken to
determine the status of the unit; members at the time the claims
incident occurred, particularly in civil emergencies as units called by
the governor, are sometimes ``federalized'' during the call-up. If the
unit was federalized at the time the claims incident occurred, the
claim will be cognizable under subparts C, D and F or other subparts
pertaining to the Active Army.
Sec. 536.94 Claims payable.
(a) Tort claims. All claims for personal injuries, death, or damage
to or loss of real or personal property, arising out of incidents
occurring on or after 29 December 1981 based on negligent or wrongful
acts or omissions, of ARNG personnel activity within the scope of
employment, with the United States while engaged in training or duty
under 32 U.S.C. Sections 316, 502, 503, 504, 505, or 709 will be
processed under the FTCA (subpart D). Such claims arising before 29
December 1981 will, except as modified herein, be processed and settled
in accordance with the provisions of subpart C.
(b) Noncombat activities. A claim incident to the noncombat
activities of the ARNG while engaged in duty or training under 32
U.S.C. Sections 316, 502, 503, 504, 505, or 709 may be settled under
this subpart.
(c) Subrogated claims. Subrogated claims will be processed as
prescribed in Sec. 536.20(b).
(d) Advance payments. Advance payments in partial settlement of
meritorious claims to alleviate immediate hardship are authorized as
provided in subpart B, small claims.
Sec. 536.95 Claims not payable.
The type of claims listed in Sec. 536.51, as not payable are also
not payable under this subpart.
Sec. 536.96 Claims under other subparts.
(a) Claims within the scope of this subpart that are also
cognizable under subparts, D, H, J or K will be considered initially
under the latter.
(b) This subpart does not apply to any claim that may be settled
under an exclusive or specific authorization listed in DA Pam 27-162,
chapter 8 (see Sec. 536.76).
Sec. 536.97 Notification of incident.
Except where claims are regularly paid from State sources; for
example, insurance, court of claims, and legislative committee, the
appropriate adjutant general will ensure that each incident of the type
enumerated in Sec. 536.15 is reported immediately by the most
expeditious means to the area claims office in whose geographic area
the incident occurs or to a claims processing office designated by the
area claims office. The report will contain the following information:
(a) Date of incident.
(b) Place of incident.
(c) Nature of incident.
(d) Names and organizations of ARNG personnel involved.
(e) Names of potential claimants.
(f) A brief description of any damage, loss, or destruction of
private property and any injuries or death of potential claimants.
Sec. 536.98 Investigation.
(a) When required. An investigation is required as indicated in
Sec. 536.15 except when claims are regularly paid by local sources.
(b) By whom made. Area offices, or claims processing offices
designated by them, are responsible for the investigation of claims
occurring within their assigned geographic areas. The state adjutant
general will designate an official or office as point of contact for
Army claims personnel and will furnish necessary personnel to conduct
or assist in investigations subject to the availability of funds and
personnel. (See Sec. 536.7(h)). The use of ARNG personnel when
available, is authorized. Attention is directed to Sec. 536.19(b) that
requires the use of information from other investigations made
previously, particularly military and civilian police reports, reports
of survey, line of duty investigations, and collateral air crash
investigations.
(c) Conduct of investigation. The investigation will be conducted
in accordance with subpart B, except that a sample scope of employment
format will be added, together with a copy of the orders authorizing
the performance of duty by the tortfeasor. Also, where a State has
waived immunity or has some other means for paying claims, as through
legislative committee or insurance, the claims officer's report will
contain a statement as to the nature of the remedy against the State,
the extent of insurance coverage, and the status of any claim made. If
there is no remedy against the State and no insurance coverage, the
claims officer's report will so indicate. If a regular procedure has
been established for the processing of claims for a particular
jurisdiction as by agreement between local authorities and an
appropriate Army headquarters or USARCS, this requirement is waived.
Finally, injury should be made as to any existing or anticipated claim
or lawsuit against or by the driver of the ARNG vehicle or insurer. If
a claim or lawsuit has been filed, further inquiry should be made as to
probable outcome. This could be accomplished by discussion with the
driver and an examination of the driver's insurance policy, which, if
obtained, should be included in the file.
Sec. 536.99 Claims in which there is a State source of recovery.
Where there is a remedy against the State, as a result of either
waiver of sovereign immunity or liability insurance coverage, the
following procedures apply:
(a) Where the State is insured, direct contact with State or ARNG
officials rather than the insurer is desirable. Regular procedures will
be established and followed wherever possible. Such procedures should
be agreed on by both local authorities and the appropriate claims
authorities subject to concurrence by Commander, USARCS. Such
procedures will be designed to ensure that local authorities and U.S.
authorities do not issue conflicting instructions for processing
claims, and whenever possible, and in accordance with governing local
and Federal law, a mutual arrangement for disposition of such claims as
in paragraph (c) of this section is worked out. Amounts recovered or
recoverable by claimant from any insurer (other than claimant's insurer
who has obtained no subrogated interest against the United States) will
be deducted from the amount otherwise payable.
(b) If there is a remedy against the State or its insurer, the
claimant may be advised of that remedy. If the payment by the State or
its insurer does not fully compensate claimant, an additional payment
may be made. If liability is clear and claimant settles with the State
or its insurer for less than the maximum amount recoverable, the
difference between the maximum amount recoverable and the settlement
normally will be deducted from the payment by the United States.
(c) If the State or its insurer desires to pay less than their
maximum jurisdiction or policy limit on a basis of 50 percent or more
of the actual value of the entire claim, any payment made by the United
States must be made directly to the claimant. This can be accomplished
by either having the United States pay the entire claim and have the
State or its insurer reimburse its portion to the United States, or by
having each party pay its agreed share directly to the claimant. If the
State or its insurer desires to pay less than 50 percent of the actual
value of the claim, the procedure set forth in paragraph (d) of this
section will be followed.
(d) If there is a remedy against the State and the State refuses to
make payment, or there is insurance coverage and the claimant has filed
an administrative claim against the United States, forward file with
Tort Claim memorandum to the Commander, USARCS; include information on
the status of any judicial or administrative action the claimant has
taken against the State or its insurer. The Commander, USARCS will
determine whether the claimant will be required to exhaust his or her
remedy against the State or its insurer, or whether the claim against
the United States can be settled without such requirement. If the
Commander, USARCS, determines to follow the latter course of action, he
or she will also determine whether an assignment of the claim against
the State or its insurer will be obtained and whether recovery action
will be taken. The State or its insurer will be given appropriate
notification in accordance with State law necessary to obtain
contribution of indemnification.
Sec. 536.100 Claims against the ARNG tortfeasor individually.
The procedures set forth in Sec. 536.29 are applicable. With
respect to claims arising before 29 December 1981, an ARNG driver
acting pursuant to the authorities cited in Sec. 536.94(a) is not
protected by the provisions of the Drivers Act (28 U.S.C. 2670(b)); the
driver may be sued individually in State court. When this situation
occurs, it should be monitored closely by ARNG authorities. If possible
an early determination will be made as to whether any private insurance
of the ARNG tortfeasor is applicable. Where such insurance is
applicable and the claim against the United States has doubtful
validity, final actions will be withheld pending resolution of the
demand against the NG tortfeasor. If, in the opinion of the claims
approving or settlement authority, such insurance is applicable and the
claim against the United States is payable in full or in a reduced
amount, settlement efforts will be made either together with the
insurer or singly by the United States as in Sec. 536.99(b). Any
settlement will not include amounts recovered or recoverable as in
Sec. 536.28. If the insurance is not applicable, settlement or
disapproval action will proceed without further delay.
Sec. 536.101 When claims must be presented.
A claim may be settled under this subpart only if presented in
writing within 2 years after it accrues, except that if it accrues in
time of war or armed conflict, or if war or armed conflict intervenes
within 2 years after it accrues, and if good cause is shown, the claim
may be presented not later than 2 years after war or armed conflict is
terminated. As used in this paragraph, war or armed conflict is one in
which any Armed Force of the United States is engaged. The dates of
commencement and termination of an armed conflict must be established
by concurrent resolution of Congress or by determination of the
President.
Sec. 536.102 Where claims must be presented.
A claim must be presented to the appropriate Federal agency.
Presentment of a written claim to any full time officer or employee of
the NG will be considered a receipt. However, the statute of
limitations is tolled if a claim is filed with a State agency, the
claim purports to be under the NGCA and it is forwarded to the Army
within 6 months, or the claimant makes inquiry of the Army concerning
the claim within 6 months. If a claim is received by a DA official who
is not a claims approval or settlement authority under this regulation,
the claim will be transmitted without delay to the nearest approval or
settlement authority.
Sec. 536.103 Procedures.
(a) The form of a claim under this Act will be as described in
Sec. 536.20(d) and (e).
(b) So far as they are not inconsistent with this subpart, the
procedures set forth in subpart B, settlement procedures, will be
followed in processing a claim under this subpart.
(c) The following provisions of subpart C are applicable to claims
under this subpart and are hereby incorporated by the following
references:
(1) Applicable law (Sec. 536.55).
(2) Determination of quantum (Sec. 536.56 through Sec. 536.59).
(3) Delegation of authority (Sec. 536.61).
(4) Claims over $100,000 (Sec. 536.62).
(5) Settlement procedures (Sec. 537.63).
(6) Action on appeal (Sec. 536.64).
(7) Attorney fees (Sec. 536.66).
Sec. 536.104 Settlement agreement.
Procedures concerning settlement agreements will be in accordance
with Sec. 536.32, except that the agreement will be modified to include
a State and its NG in most cases. A copy of the agreement will be
furnished to State authorities and the individual tortfeasor.
Subpart G--Claims Under Status of Forces and Other International
Agreements
General
Sec. 536.105 Statutory authority.
The authority for this subpart is contained in the following:
(a) 10 U.S.C. 2734a as amended, concerning claims arising overseas
under international agreements.
(b) 10 U.S.C. 2734b, as amended, concerning claims arising under
international agreements in this country.
(c) 10 U.S.C. 2735.
(d) 10 U.S.C. 2736, as amended, providing for advance payment of
certain claims.
Claims Arising in the United States
Sec. 536.106 Scope.
(a) This subpart provides procedures and defines responsibilities
for the investigation, processing, and settlement of claims arising out
of acts or omissions of members of a foreign military force or civilian
component present in the United States, or a territory, commonwealth,
or possession thereof under the provisions of reciprocal international
agreements, which contain claims settlement provisions applicable to
claims arising in the United States, such as Article VIII of the
Agreement Regarding the Status of Forces of Parties to the North
Atlantic Treaty (DA Pam 27-162, appendix L).
(b) The Sending States under current international reciprocal
agreements include Belgium, Canada, Denmark, Federal Republic of
Germany, France, Greece, Italy, Luxembourg, Netherlands, Norway,
Portugal, Turkey, the United Kingdom, Spain, and SHAPE.
(c) Reference should be made to DA Pam 27-162, appendix L for
delineation of what constitutes a foreign military force, a foreign
civilian component, and a foreign dependent.
(d) Whenever claims arise involving foreign soldiers training or
otherwise stationed in the United States pursuant to bilateral
agreements or other arrangements, such as foreign military sales
agreements, which contain specific claims provisions, the claims office
receiving the claim will report such claims to the Commander, USARCS,
for guidance as to the resolution and, if necessary, payment of such
claims.
(e) The United States, as a Receiving State, is responsible under
some Status of Forces Agreements, for the investigation of incidents,
and for the processing of claims, arising from acts or omissions of
members or civilian employees of an armed force of a sending state
present in the United States. The United States may be liable for
partial payment of such claims if they arise incident to the official
duties of the sending state's soldier or employee. Article VIII of the
NATO SOFA is the most commonly invoked agreement of this sort. It
applies to torts committed within the North Atlantic Treaty Area, which
includes the continental United States and island possessions north of
the Tropic of Cancer (i.e. excludes Puerto Rico, Hawaii and American
Samoa). It also applies to claims arising out of acts by military or
civilian personnel, regardless of nationality, who are assigned,
attached to, or employed by an international headquarters established
under the provisions of the Protocol on the Status of International
Military Headquarters Set Up Pursuant to the North Atlantic Treaty
dated August 28, 1952 (e.g. Supreme Allied Command, Atlantic).
(f) Single service responsibility for the processing and settlement
of claims cognizable under this section is assigned to DA by DODD
5515.8. The Secretary of the Army hereby designates the USARCS as the
Receiving State Office for claims cognizable under this section with
authority to settle such claims in accordance with 10 U.S.C. 2734b.
(See DA Pam 27-162, appendix L.)
(g) As Sending State forces are considered assimilated into the
armed forces of the United States for purposes of the SOFAs, their
members are also barred from being compensated by the United States
when they are injured incident to their service, Daberkow v. United
States, 581 F.2d 785 (9th Cir. 1978). (See also DA Pam 27-162, appendix
L for an example of a government-to-government claim bar in these
circumstances.)
Sec. 536.107 Notification of incidents.
In order for the United States to properly discharge its claims
responsibilities under international agreements, it is essential that
the responsible military authorities be notified of all incidents,
including off-duty incidents, in which members of a foreign military
force or civilian component are involved. Any installation that learns
of an incident involving a member of a foreign military force or
civilian component which results in personal injury, death, or property
damage will notify immediately by the most expeditious means the
installation to which such person is assigned or attached. An
information copy of such notification will be furnished to the
Commander, USARCS. In the event the member is not assigned or attached
to any installation within the United States, the Commander, USARCS
will be notified. The notification (exempt report, AR 335-15, paragraph
720) will contain so much of the following information as is readily
available:
(a) Date of incident.
(b) Place of incident.
(c) Nature of incident.
(d) Names and organization of foreign personnel involved.
(e) Name of potential claimants.
(f) A brief description of any damage, loss, or destruction of
property, and personal injuries of death.
Sec. 536.108 Liaison with Sending State representatives.
The Commander, USARCS is responsible for maintaining liaison with
designated representatives of Sending States as to claims matters under
this section, and establishing internal operating procedures.
Sec. 536.109 Investigations.
(a) Immediate investigation of each incident involving a member of
a foreign force or civilian component is required in order to ensure
that all necessary information, including necessary statements and
depositions, is obtained before the foreign personnel involved, either
principals or witnesses, depart the United States.
(b) Responsibility for the investigation of an incident rests upon
the commander of the installation to which the member of a foreign
force or civilian component is assigned or attached, or if not assigned
or attached within the United States upon the Commander, USARCS. He or
she is authorized to designate an appropriate agency of the Armed
Services for this purpose.
(c) The installation responsible for the investigation will be free
to request appropriate assistance from any other installation within
the DOD to the end that a reliable and complete investigation of the
incident will be accomplished most economically. Such requested
assistance may be for an investigation of the entire incident, or it
may cover only part of the investigation; for example, it may be a
statement from one witness. Normally such requests will be made of an
installation having claims responsibility under the appropriate
departmental regulation and nearest the place of the occurrence. In a
case involving an aircraft, such request will normally be made of an
installation that also has the capability of investigating air
accidents giving due regard to the type of aircraft.
(d) The investigation will be made in accordance with the
regulations of the department of which the installation is a part.
Also, information will be obtained as to whether the claimant is a
member of a foreign force or civilian component, or dependent of such a
member or employee. If so, the following will be listed:
(1) Any benefits the claimant may be entitled to from his or her
own government whether he or she has applied, or intends to apply, for
such benefits.
(2) The value of any benefits to which the claimant may be
entitled, which he or she may have received, or both.
(e) The investigating officer will arrange with the commanding
officer of the foreign unit to which a member of a foreign force or
civilian component is assigned, or the immediate superior of such
member, to obtain from such member the pertinent information and
required reports. If the member is assigned or attached to a United
States organization or installation, information and reports will be
obtained in accordance with the procedure applicable to United States
personnel.
(f) Notwithstanding the provisions of department regulations, a
copy of the report of investigation will be forwarded to the Commander,
USARCS immediately upon completion.
Sec. 536.110 Claims procedures.
(a) Place and timing of filing. A claim should be filed with the
commanding officer of the United States military installation nearest
the place where the incident occurred, but may be filed at any other
such installation, within two years of its accrual. Immediately upon
receipt, a copy will be forwarded to Commander, USARCS. The claim and
supporting documents will conform to the regulations of the department
of which the place of filing is a part. Claims filed with a sending
State official within 2 years of their accrual will be accepted as
timely if received by a U.S. claims office (Sec. 536.5) before the
passage of a total of 2\1/2\ years from the date of accrual.
(b) Processing of claims. A claim normally will be processed by the
installation that first investigated the incident from which it arose
in accordance with the pertinent departmental regulations. The
commanding officer of an installation with which a claim is filed may
by direct communication ascertain whether the incident from which it
arose was investigated by another installation, and, if so, may
transmit the claim for further processing to that installation. Upon
completion of investigation, the claim file will be forwarded to the
Commander, USARCS.
(c) Official duty claims. Pursuant to 10 U.S.C. 2734b, claims
generated by the sending State personnel, while engaged in the
performance of official duties, are settled by a person designated in
Sec. 536.111 in the manner provided for claims generated by personnel
of the armed forces of the United States, that is, under the MCA
(subpart C), the FTCA (subpart D) or the Army Maritime Claims
Settlement Act (subpart H). The Commander, USARCS, will obtain scope of
employment determinations from sending State officials under the
conditions set forth in Article VIII, NATO SOFA. Payments made are
subject to pro rata reimbursement by the sending State (paragraph 5,
Article VIII, NATO SOFA (DA Pam 27-162, appendix L)).
(d) Exgratia claims. Claims arising from off-duty activities of
sending State personnel are, after investigation, processing, and
evaluation, referred by the Commander, USARCS to sending State
officials for a determination as to whether an exgratia payment will be
offered (paragraph 6, Article VIII, NATO SOFA (DA Pam 27-162, appendix
L)).
Sec. 536.111 Settlement authority.
The Commander, USARCS, or designees, are delegated sole authority
to settle claims under this subpart.
Sec. 536.112 Advance payments.
Advance payments in partial settlement of meritorious claims to
alleviate immediate hardship are authorized as provided in subpart B,
advanced payments.
Sec. 536.113 Litigation.
Officials designated by departmental regulations as responsible for
reporting the initiation of legal proceedings involving their
department will take the following action upon the commencement of
legal proceedings;
(a) Report the initiation of the proceeding by electrical message
to the Litigation Division, Office of TJAG, submitting the information
required by departmental regulation for reports of commencement of
proceedings, with a copy to Commander, USARCS.
(b) Notify the proper United States Attorney and furnish him or her
with copies of all process and pleadings.
(c) Forward by fastest means available to the Litigation Division,
Office of TJAG, three copies of all process, pleadings, and related
papers.
(d) Unless otherwise directed by TJAG, prepare an investigative
(litigation) report in the manner prescribed by departmental
regulations and submit three copies to Litigation Division, Office of
the TJAG, AR 27-40; AFR 110-3; Navy JAG Manual, chapter 13).
Sec. 536.114 Assistance to foreign forces.
(a) In order that claims cognizable under this section will be
treated as nearly as possible as if they arose from activities of
United States personnel, all possible assistance will be provided to
commanding officers of foreign units and to members thereof.
(b) The commanding officer of an installation at which a foreign
unit is stationed will furnish to the commanding officer of the foreign
unit copies of regulations and forms relating to claims, and, when
applicable, will provide instructions for the members of the unit with
respect to the pertinent State laws and reporting of accidents.
(c) The commanding officer of an installation to whom a request for
information or assistance is made by foreign personnel or to whom a
report of an incident is made will provide, to the extent permitted by
security regulations, the requested information or assistance.
(d) When circumstances permit, assistance in meeting local
requirements will be rendered to the foreign personnel involved at the
scene of an incident by the commanding officer of the installation to
which the incident was reported. The commanding officer of an
installation at which a foreign unit is stationed should request that
local law enforcement agencies follow procedures applicable to
incidents involving military personnel of the United States in any
incident involving foreign personnel.
Claims Against the United States Arising Overseas
Sec. 536.115 Scope.
(a) This section provides guidance on claims against the United
States which are based on acts of our soldiers or employees within the
scope of their employment and which arise in countries for which there
is an international agreement requiring a foreign government (i.e.
receiving state) to adjudicate and pay the claims subject to partial
reimbursement by the United States.
(b) Claims by foreign inhabitants based on acts of members of our
forces which are outside the scope of their official duties may be
payable under the Foreign Claims Act (subpart J) but are usually not
adjudicated by receiving states under most international agreements.
These non-scope claims will be processed under the provisions of
subpart J.
Sec. 536.116 Claims procedures.
(a) Claims provisions in Status of Forces Agreements providing for
receiving state adjudication have been held to be the exclusive remedy
for claims against the United States, preempting any remedy that would
otherwise be available under other United States claims statutes, such
as the Foreign Claims Act or the Public Vessels Act (Aaskov. v.
Aldridge, 695 F. Supp. 595 (D.D.C. 1988)).
(b) SOFA provisions for receiving state adjudication of claims
against the United States usually refer to claims by ``third parties''
against members of the force or civilian component. This clearly
includes claims by tourists or business travelers from the United
States as well as inhabitants of foreign countries. Depending on how
the receiving state interprets the class of proper claimants under the
SOFA claims provisions, the receiving state may also adjudicate claims
by dependents of our forces. Chiefs of command claims services
responsible for claims arising in countries with SOFA or other treaty
provisions requiring adjudication of claims against the United States
by a receiving state will ensure their tort claims personnel are aware
of the receiving state's policy on the issue of who are proper
claimants under the treaty provisions.
(c) Where SOFA provisions provide for receiving state adjudication
of claims, the time limit for filing such claims is often substantially
less than the two years that would otherwise be allowed under the FCA
or MCA. For example, the Defense Cost Office in Germany requires that a
claim be filed within 90 days of the date it accrues. Command claims
services will ensure that all claims personnel in their area of
responsibility:
(1) Receive annual training on the receiving state's claims
procedures, to include the applicable time limits, procedures and
location of the appropriate receiving state claims office or agency;
(2) Screen all new claims and inquiries about claims to identify
claimants who must file with the receiving state;
(3) Ensure that all such claimants are informed of this requirement
and the applicable time limit.
(d) All foreign inhabitants who have claims against the United
States which are the responsibility of the receiving state (i.e. based
on acts within scope of duties of employees or members of U.S. forces
and not otherwise excluded by the treaty) will be required to file the
claim with the appropriate receiving state office. Those U.S.
inhabitants whose claims would otherwise be cognizable under the
Military Claims Act (subpart C) and who are deemed by the receiving
state to be proper claimants under the SOFA claims provisions must also
file with the receiving state. However, if they fail to do so, their
claim may be considered under subpart C, for good cause, with the
permission of the Commander, USARCS. Claims for which a foreign country
is responsible under a SOFA or similar agreement will not be paid under
subpart J or subpart C without prior approval of the Commander, USARCS
or the senior JA in country (Secs. 536.52(a)(3) and 536.152(c)).
(e) A claim filed and adjudicated by a receiving state under a SOFA
or other international agreement claims provision may be considered
under other claims provisions of this regulation only if the receiving
state denied the claim on the basis that it was not cognizable under
the treaty or agreement provisions. Where a claimant has filed a claim
with a receiving state and received payment, such payment will be the
claimant's final and exclusive remedy against the United States. If the
claim is denied on the merits by the receiving state, that action will
also be the claimant's final and conclusive remedy against the United
States.
Sec. 536.117 Responsibilities.
(a) The Commander, USARCS, is responsible for--
(1) Providing policy guidance to command claims services concerning
SOFA or other treaty reimbursement programs implementing 10 U.S.C.
2734a.
(2) Monitoring the reimbursement system to ensure that programs are
in place for the proper verification and certification of reimbursement
claims.
(3) Monitoring funds expended for reimbursements to foreign
governments.
(b) Command claims services within whose jurisdiction SOFA or other
treaty provisions providing for a claims reimbursement system are in
force and where DA has been assigned single-service responsibility for
the foreign country seeking reimbursement (see Sec. 536.159) are
responsible for--
(1) Establishing a program for the verification, certification, and
reimbursement of claims. A copy of the procedures implementing the
program will be provided to the Commander, USARCS.
(2) Providing the Commander, USARCS, with budget estimates or
reimbursements in addition to the reports required by Sec. 536.242.
(3) Providing the Commander, USARCS, with statistical information
each month in which payments are made as to the number of individual
claims reimbursed, the total amount paid by the foreign government, and
the total amount reimbursed by the United States.
(4) Providing the Commander, USARCS, with a quarterly report
showing total reimbursements paid during the quarter for maneuver
damage and tort claims (broken out by major categories of damage as
determined by the Commander, USARCS) and an update on major issues or
activities that could impact on the operation or funding of the
reimbursement system.
Sec. 536.118 Reimbursements for nonappropriated funds.
(a) Reimbursements for claims generated by the operations of
nonappropriated fund activities will be paid using nonappropriated
funds (NAF) (see subpart L).
(b) Command claims services will provide the Commander, USARCS,
with statistical information each month, if appropriate, as to the
number of NAF claims processed and the amounts to be reimbursed by
NAFs.
Sec. 536.119 Reimbursement for Coast Guard activities.
Upon request of the Secretary of Transportation, or designee, any
payments made relating to Coast Guard-generated claims covered by 10
U.S.C. 2734a(c) may be reimbursed or paid to the foreign government
concerned by a command claims service out of its reimbursement
expenditure allowance, subject to reimbursement from the Department of
Transportation (10 U.S.C. 1734a(d)).
Subpart H--Maritime Claims
General
Sec. 536.120 Statutory authority.
Adminsitrative settlement or compromise of admiralty and maritime
claims in favor of and against the United States by the Secretary of
the Army, or designee, is authorized by the Army Maritime Claims
Settlement Act (10 U.S.C. 4801-04, 4806, as amended).
Sec. 536.121 Related statutes.
The Army Maritime Claims Settlement Act is supplemented by the
following statutes under which suits in admiralty may be brought: the
Suits in Admiralty Act (46 U.S.C. 741-752); the Public Vessels Act (46
U.S.C. 781-790); an act Extending the Admiralty and Maritime
Jurisdiction (46 U.S.C. 740). Similar maritime claims settlement
authority is exercised by the Department of the Navy under 10 U.S.C.
7365 and 7621-23 and by the Department of the Air Force under 10 U.S.C.
9801-04 and 9806.
Claims Against the United States
Sec. 536.122 Scope.
Title 10, United States Code, section 4802, provides for the
settlement or compromise of claims for--
(a) Damage caused by a vessel of, or in the service of, the DA or
by other property under the jurisdiction of the DA;
(b) Compensation for towage and salvage service, including contract
salvage, rendered to a vessel of, or in the service of, the DA or to
other property under the jurisdiction of the DA; or
(c) Damage caused by a maritime tort committed by any agent or
employee of the DA or by property under the jurisdiction of the DA.
Sec. 536.123 Claims exceeding $500,000.
Claims against the United States settled or compromised in a net
amount exceeding $500,000 are not payable hereunder, but will be
investigated and processed under this section and, if approved by the
Secretary of the Army, will be certified to Congress.
Sec. 536.124 Claims not payable.
A claim is not allowable under this section that--
(a) Is for damage to, or loss or destruction of property, or for
personal injury or death, resulting directly or indirectly from action
by the enemy, or by U.S. Armed Forces engaged in armed conflict, or in
immediate preparation for impending armed conflict.
(b) Is for the personal injury or death of a member of the Armed
Forces of the United States or a civilian employee incurred incident to
his or her service.
(c) Is for the personal injury or death of a Government employee
for whom benefits are provided by the FECA (5 U.S.C. 8101-8150).
(d) Is for the personal injury or death of an employee, including
nonappropriated fund employees, for whom benefits are provided by the
Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 901).
(e) Has been made the subject of a suit by or against the United
States, except as provided in Sec. 536.127(b).
(f) Arises in a foreign country and was considered by the
authorities of a foreign country and final action taken thereon under
Article VIII of the NATO SOFA, Article XVIII of the Japanese
Administrative Agreement, or other similar treaty or agreement, if
reasonable disposition was made of the claim.
(g) Is based upon the exercise or performance or the failure to
exercise or to perform a discretionary function or duty whether or not
the discretion is abused, provided that the United States Court of
Appeals for the jurisdiction in which the claim arises has not
specifically refused to incorporate the discretionary function
exception into the Suits in Admiralty Act (e.g. United States Court of
Appeals for the Fourth Circuit).
(h) Is presented by a citizen or government agency, or a
corporation controlled by a citizen or government agency, of a country
at war or engaged in armed conflict with the United States, or any
country allied with such enemy country unless the appropriate
settlement authority determines that the claimant is, and, at the time
of the incident, was friendly to the United States.
Sec. 536.125 Claims under other laws and regulations.
(a) Claims of DA personnel and civilian employees of DOD including
military and civilian officers and crews of Army vessels, for damage to
or loss of personal property occurring incident to their service will
be processed under the provisions of subpart K.
(b) Claims that are within the scope of this section and also
within the scope of subpart J may be processed under subpart J when
specific authority to do so has been obtained from the Commander,
USARCS. The request for such authority should be accompanied by a copy
of the report of the incident by the Marine Casualty Investigating
Officer, or other claims investigator.
Sec. 536.126 Subrogation.
(a) An insurer will be recognized as a claimant under this section
to the extent that it has become subrogated by payment to, or on behalf
of, its assured, pursuant to a contract of insurance in force at the
time of the incident from which the claim arose. An insurer and its
assured may file a claim either jointly or separately. Joint claims
will be asserted in the names of, and must be signed by, or on behalf
of, all parties; payment then will be made jointly. If separate claims
are filed, payment to each party will be limited to the extent of such
party's undisputed interest.
(b) For the purpose of determining authority to settle or
compromise a claim, the payable interests of an insurer (or assurers)
and the assured represent merely separable interests, which interests
in the aggregate must not exceed the amount authorized for
administrative settlement or compromise.
(c) The policies set forth in paragraphs (a) and (b) of this
section with respect to subrogation arising from insurance contracts
are applicable to all other types of subrogation.
Sec. 536.127 Limitation of settlement.
(a) The period of effecting an administrative settlement under the
Army Maritime Claims Settlement Act is subject to the same limitation
as that for beginning an action under the Suits in Admiralty Act; that
is, a 2-year period from the date the cause of the action accrued. The
claimant must have agreed to accept the settlement, and it must be
approved for payment by the Secretary of the Army, or other approval
authority, prior to the end of such period. The presentation of a
claim, or its consideration by the DA, neither waives nor extends the
2-year limitation period and the claimant should be so informed in
accordance with paragraph (c) of this section.
(b) In the event that an action has been filed in a U.S. district
court before the end of the 2-year statutory period, an administrative
settlement may be negotiated by the Commander, USARCS with the
claimant, even though the 2-year period has elapsed since the cause of
action accrued, provided the claimant obtains the written consent of
the appropriate office of the Department of Justice charged with the
defense of the complaint. Payment may be made upon dismissal of the
complaint.
(c) When a claim under this section, notice of damage, invitation
to a damage survey, or other written document indicating an intention
to hold the United States liable is received, the receiving
installation, office, or person, will immediately forward such document
to the Commander, USARCS. The USARCS claims office receiving notice of
the claim will promptly advise the claimant or potential claimant in
writing of the comprehensive application of the time limit.
(d) Where a claim under this section for $25,000 or less is
presented to a Corps of Engineers or other designated area claims
office (see Secs. 536.128(c) and 536.132(c) and thus may be appropriate
for action by that office pursuant to the delegation of authority set
forth in Sec. 536.128, the receiving Corps of Engineer office will
promptly advise the claimant in writing of the comprehensive
application of the time limit on the Army's authority to settle the
claim as well as the fact that the claim does not toll the statute of
limitations for filing suit. (See Sec. 536.12(b)).
(e) Claimants are not required to file an administrative claim six
months prior to filing suit except for those claims where maritime
jurisdiction is based on the Act Extending the Admiralty and Maritime
Jurisdiction (46 U.S.C. 740) (i.e. damage or injury on land resulting
from an act on navigable waters). However, even in those cases, the
filing of an administrative claim does not toll the two year statutory
limit for filing suit nor extend the authority of the Army to settle a
claim. Any such claim filed within six months of the running of the
statute of limitations should be brought to the attention of USARCS
immediately and every reasonable effort should be made to complete
final agency action before the running of the two year limit.
(f) Limitation of Liability. Under the provisions of the Limitation
of Shipowners' Liability Act, 46 U.S.C. 181-188, the United States may
be able, in cases alleging injury or loss due to negligent operation of
a vessel, to limit our liability to the value of the vessel after the
accident. To take advantage of this law, the United States must file an
action in federal district court within six months of receiving written
notice of a claim. Therefore, USARCS must be notified within 10
workdays of the receipt of any maritime claim arising in the United
States or on the high seas out of the operation of an Army vessel, to
include pleasure craft owned by the United States. The Claims Service
will coordinate with Litigation Division, OTJAG or the Chief Counsel,
COE and the Department of Justice on whether a limitation of liability
action will be filed.
Sec. 536.128 Approval authority.
(a) The Secretary of the Army, the Assistant Secretary of the Army
(Financial Management) as designee of the Secretary or the designee of
the Secretary may approve any settlement or compromise of a claim under
this subpart subject only to the statutory limits (presently $500,000).
(b) TJAG, TAJAG and the Commander, USARCS or his designee within
USARCS are delegated authority to settle (i.e. deny or approve payment
in full or in part) any claim under this subpart regardless of the
amount claimed, provided that any amount awarded does not exceed
$100,000 and that the claimant signs an appropriate settlement
agreement.
(c) Chiefs of command claims services, heads of Corps of Engineers
area claims offices and heads of other area claims offices designated
by the Commander, USARCS, are delegated authority to deny claims under
this subpart presented in an amount not exceeding $25,000. They may
also pay in full or compromise any claim where the amount to be paid
does not exceed $25,000, provided the claimant is willing to accept the
payment and executes an appropriate settlement agreement.
(d) Only the authorities designated in paragraph a, above may deny
or make a final offer on a claim demanding more than $25,000. If a
claim cannot be settled within the authority of the head of an area
claims office or the chief of a command claims service responsible for
investigating a claim, it will be forwarded to USARCS through
appropriate channels with a claims memorandum of opinion recommending
disposition.
(e) Meritorious claims arising from civil works activities of the
Corps of Engineers will be paid from Corps of Engineers funds.
Claims In Favor of the United States
Sec. 536.129 Scope.
(a) Title 10, United States Code, Section 4803, provides for agency
settlement or compromise of claims for damage to--
(1) DA accountable properties of a kind that are within the
admiralty jurisdiction of a district court of the United States.
(2) Claims for damage caused by a vessel or floating object to
property under the jurisdiction of the DA or property for which the DA
has assumed an obligation to respond in damages, where the net amount
payable to the United States does not exceed $500,000.
(b) Title 10, United States Code, Section 4804, provides for the
settlement of compromise of claims in any amount for salvage
services(including contract salvage and towage) performed by the DA.
Claims for salvage services are based upon labor costs, per diem rates
for the use of salvage vessels and other equipment, and upon repair or
replacement costs of materials and equipment damaged or lost during the
salvage operation. The sum claimed is intended to compensate the United
States for operational costs only, reserving, however, the right of the
Government to assert a claim on a salvage bonus basis in accordance
with commercial practice, in appropriate cases.
(c) The United States has three years from the date a maritime
claim accrues under this section to file suit against the responsible
parties. The Army's authority to settle or compromise a suit under this
section terminates when the statute of limitations has run. Efforts to
compromise a claim under this section should not extend more than two
years past the date the claims accrues unless it is clear that an
administrative settlement is likely. As a general rule, affirmative
claims which are likely to be resolved through litigation should be
referred to the Department of Justice within two years of the date the
claims accrue.
Sec. 536.130 Claims exceeding $500,000.
Maritime claims in favor of the United States, except claims for
salvage services, may not be settled or compromised under this section
at a net amount exceeding $500,000 payable to the United States.
However, all such claims otherwise within the scope of this section
will be investigated in accordance with the procedures in subpart B and
reported to the Commander, USARCS. The Commander, USARCS will forward
the claim to the Secretary of the Army, the Assistant Secretary of the
Army (Financial Management) as designee to the secretary or other
designee of the Secretary who will then certify it to Congress.
Sec. 536.131 Civil works activities.
Rights of the United States to fines, penalties, forfeitures, or
other special remedies in connection with the protection of navigable
waters, the control and improvement of rivers and harbors, flood
control, and other functions of the Corps of Engineers involving civil
works activities are not dealt with in this section. However, claims
for money damages that are civil in nature, arising out of civil works
activities of the Corps of Engineers and otherwise under this section,
for which an adequate remedy is not available to the COE, may be
processed under this section.
Sec. 536.132 Delegation of authority.
(a) The Secretary of the Army, the Assistant Secretary of the Army
(Financial Management) as designee of the Secretary or other designee
of the Secretary may compromise an affirmative claim by the United
States under this subpart subject only to the statutory limit
(presently $500,000) on the amount to be received (10 U.S.C.
4803(a)(2)).
(b) TJAG, TAJAG and the Commander, USARCS or his designee within
USARCS may settle, or compromise, and receive payment on a claim by the
United States under this subpart if the amount to be received does not
exceed $100,000. They may also terminate collection of claims for the
convenience of the government in accordance with the standards
specified by the Department of Justice (see 4 CFR, Parts 103 and 104),
regardless of the amount claimed.
(c) Chiefs of command claims services, the Chief Counsel, Corps of
Engineers, heads of Corps of Engineers area claims offices, and heads
of other area claims offices designated by the Commander, USARCS may
receive payment in full or compromise any claim by the United States
under this subpart provided:
(1) The amount of the government's claim does not exceed $100,000,
and
(2) The amount to be received does not exceed $25,000. The
authority delegated in this paragraph to Corps of Engineers claims
offices is subject to such limitations as may be imposed by the Chief
Counsel, Corps of Engineers.
(d) The head of any claim office may assert and receive payment for
the full amount of a claim not exceeding $100,000 by the United States
under this subpart.
Sec. 536.133 Demands.
(a) It is essential that demands for payment or notice of intention
to make such demands be made as soon as possible following receipt of
information of damage to Army property where legal liability to respond
is present or possibly present. Except in cases falling under
Sec. 536.132(b), copies of the initial demand/notice of intention to
make demand letters, as well as copies of subsequent correspondence
will be promptly provided to the Commander, USARCS, who will monitor
the progress of such claims.
(b) Where, in response to any demand made by a field claims office,
a respondent denies liability, fails to respond within a reasonable
period, or offers a compromise settlement, the file will be promptly
forwarded to the Commander, USARCS, except in cases where proposed
compromise settlement is deemed acceptable and the claim is otherwise
within the authority delegated in Sec. 536.132(b).
Investigations and Reports
Sec. 536.134 Procedure.
Claims under this subpart will be investigated and reported in
accordance with subpart B of this part, AR 55-19 or other applicable
regulations.
Sec. 536.135 Reports.
A copy of the report of a marine casualty investigation disclosing
the basis for a claim under section II or III of this subpart will be
furnished to the Commander, USARCS within 60 days after the day on
which the marine casualty occurred or after notice of such casualty. An
interim report will be forwarded if the investigation has not been
completed within the 60-day period. The report will contain original
signed statements of all witnesses and other original documentary
evidence to the extent practicable.
Sec. 536.136 Form of claim.
(a) A demand letter may initiate a claim. Formalization of a claim
may be accomplished at any time before consummation of the settlement
or compromise. It is preferable that claims under section II of this
subpart be submitted on SF 95; however, the submission of a special
form, in view of commercial practice, is not required. The reporting of
a maritime casualty under Sec. 536.135 will not be deferred in
anticipation of the receipt of a claim.
(b) Claims of foreign nationals will be stated in the currency of
the country in which the casualty occurred, or in the currency of the
nationality of the claimant if other than the country of the casualty.
Subpart I--Claims Under Article 139, Uniform Code of Military
Justice
Sec. 536.137 Statutory authority.
The authority for this subpart is Article 139, UCMJ (10 U.S.C.
939), which provides for redress for property willfully damaged or
destroyed, or wrongfully taken, by members of the armed forces of the
United States.
Sec. 536.138 Purpose.
This subpart sets forth the standards to be applied and the
procedures to be followed in the processing of claims for damage, loss,
or destruction of property owned by or in the lawful possession of an
individual whether civilian or military, a business, a charity, or a
State or local government, where the property was wrongfully taken or
willfully damaged by military members of DA. Claims cognizable under
other claims statutes may be processed under this subpart.
Sec. 536.139 Effect of disciplinary action.
Administrative action under Article 139 and this subpart is
entirely separate and distinct from disciplinary action taken under
other sections of the UCMJ or other administrative actions. Because
action under Article 139 and this subpart requires independent findings
on issues other than guilt or innocence, the mere fact that a soldier
was convicted or acquitted of charges is not dispositive of a claim
under Article 139.
Sec. 536.140 Claims cognizable.
Claims cognizable under Article 139, UCMJ, are limited to--
(a) Claims for property willfully damaged. Willful damage is damage
which is inflicted intentionally, knowingly, and purposefully without
justifiable excuse, as distinguished from damage caused inadvertently
or thoughtlessly through simple or gross negligence. Damage, loss, or
destruction of property caused by riotous, violent, or disorderly acts,
or by acts of depredation, or through conduct showing reckless or
wanton disregard of the property rights of others may be considered
willful damage.
(b) Claims for property wrongfully taken. A wrongful taking is any
unauthorized taking or withholding of property, not involving the
breach of a fiduciary or contractual relationship, with the intent to
temporarily or permanently deprive the owner or person lawfully in
possession of the property. Damage, loss, or destruction of property
through larceny, forgery, embezzlement fraud, misappropriation, or
similar offense may be considered wrongful taking.
Sec. 536.141 Claims not cognizable.
Claims not cognizable under this subpart and Article 139 include--
(a) Claims resulting from negligent acts.
(b) Claims for personal injury or death.
(c) Claims resulting from acts or omissions of military personnel
acting within the scope of their employment.
(d) Claims resulting from the conduct of Reserve component
personnel who are not subject to the UCMJ at the time of the offense.
(e) Subrogated claims, including claims by insurers.
Sec. 536.142 Limitations on assessments.
(a) Time Limitations. To be considered, a claim must be submitted
within 90 days of the incident out of which the claim arose, unless the
special court-martial convening authority (SPCMCA) acting on the claim
determines that good cause has been shown for the delay.
(b) Limitations on amount. If the General Court-Martial Convening
Authority (GCMCA), or designee, acting on the claim determines that an
assessment against a soldier in excess of $10,000 for a single incident
is meritorious, he or she will assess the pay of that soldier in the
amount of $10,000 and forward the claim to the Commander, USARCS with
his or her recommendation as to the additional amount that should be
assessed.
(1) A SPCMCA has authority to approve a pay assessment not to
exceed $5,000 on a single incident and deny a claim in any amount.
(2) A GCMCA, or designee, has authority to approve a pay assessment
in an amount not to exceed $10,000 on a single incident.
(3) Only the Commander, USARCS, or designee, has authority to
approve a pay assessment in an amount greater than $10,000 on a single
incident.
(c) Direct damages. Assessments are limited to direct damages for
the loss or damage to property. Indirect, remote, or consequential
damages may not be considered under this subpart.
Sec. 536.143 Procedure.
Area claims offices and claims processing offices with approval
authority are responsible for publicizing the Article 139 program and
maintaining a log for Article 139 claims presented in their areas (see
DA Pam 27-162, paragraph 10-6). Area claims offices and claims
processing offices with approval authority are required to monitor
action taken on Article 139 claims and ensure that time requirements
are met. If assessment action on a particular claim will be unduly
delayed, the office may consider the claim under 31 U.S.C. 3721 and
subpart K of this part if it is otherwise cognizable under that
authority. The office will counsel the claimant to repay any
overpayment if the Article 139 claim is later successful (see
Sec. 516.163(d)(1).
(a) Form if a claim and presentment. A claim must be presented by
the claimant or his or her authorized agent orally or in writing. The
claim must be reduced to writing, signed, and for a definite sum in
U.S. dollars within 10 days after oral presentment. (See
Sec. 536.20(d)(1)(i))
(b) Action upon receipt of a claim. Any officer receiving a claim
will forward it within 2 working days to the SPCMCA over the soldier or
soldiers against whom the claim is made. If the claim is made against
soldiers under the jurisdiction of more than one such convening
authority who are under the same general court-martial convening
authority, the claim will be forwarded to that general court-martial
convening authority, who will designate one SPCMCA to investigate and
act on the claim as to all soldiers involved. If the claim is made
against soldiers under the jurisdiction of more than one SPCMCA at
different locations and not under the same general court-martial
convening authority, the claim will be forwarded to the SPCMCA whose
headquarters is closest to the situs of the incident, who will
investigate and act on the claim as to all soldiers involved. If a
claim is made against a member of one of the other Military Services,
the claim will be forwarded to the commander of the nearest MACOM of
that Service.
(c) Action by the SPCMCA. (1) If the claim appears to be
cognizable, the SPCMCA will appoint an investigating officer within 4
working days of receipt of a claim. The investigator will use the
procedures of this subpart supplemented by the procedures of AR 15-6,
chapter 4, applicable to informal investigations. The claims officer of
a command, if he or she is a commissioned officer, may be appointed as
the investigating officer.
(2) If the claim is not made against a person who is a member of
the armed forces of the United States at the time the claim is
received, or if the claim otherwise does not appear to be cognizable
under Article 139, the SPCMCA may refer it for legal review (see
paragraph (e) of this section) within 4 working days of receipt. If,
after legal review, the SPCMCA determines that the claim is not
cognizable, he or she may take final action disapproving the claim (see
paragraph (f)) without appointing an investigating officer.
(d) Action by the investigating officer. The investigating officer
will provide notification to the soldier against whom the claim is
made.
(1) If the soldier indicates a desire to make voluntary
restitution, the investigating officer may, with the convening
authority's concurrence, delay proceedings until the end of the next
pay period to accomplish this. If the soldier makes payment to the
claimant's full satisfaction, the claim will be dismissed.
(2) In the absence of full restitution, the investigating officer
will determine whether the claim is cognizable and meritorious under
the provisions of Article 139 and this subpart and the amount to be
assessed each offender. This amount will be reduced by any restitution
accepted by the claimant from an offender in partial satisfaction.
Within 10 working days or such time as the SPCMCA may provide, the
investigating officer will make findings and recommendations and submit
these to the SPCMCA.
(3) If the soldier is absent without leave so that he or she cannot
be provided with notification, the Article 139 claim may be processed
in the soldier's absence. If an assessment is approved, a copy of the
claim and memorandum authorizing pay assessment will be forwarded by
transmittal letter to the servicing finance and accounting office (FAO)
for offset input against the soldier's pay account. In the event the
soldier is dropped from the rolls, the servicing FAO will forward the
assessment documents to Commander, Defense Finance and Accounting
Services, ATTN: Military Pay Operations, Indianapolis, Indiana 46249.
(e) Legal review. The SPCMCA will refer the claim to the area
claims office or claims processing office servicing his or her command
to review for legal sufficiency and advice. This will be either after
completion of the investigating officer's report or subsequent to the
SPCMCA's decision that the claim is clearly not cognizable
(Sec. 536.143(c)(2)). That office will furnish within 5 working days or
such time as the SPCMCA will provide a written opinion as to--
(1) Whether the claim is cognizable under the provisions of Article
139 and this subpart.
(2) Whether the findings and recommendations are supported by
evidence.
(3) Whether there has been substantial compliance with the
procedural requirements of Article 139, this subpart, and AR 15-6.
(4) Whether the claim is clearly not cognizable (see Sec. 536-
143(c)(2)) and final denial action can be taken without appointing an
investigating officer.
(5) If the investigator recommends an assessment more than $5,000,
the Judge Advocate/claims attorney will forward the packet to the head
of the area claims office for the legal review. Within 5 working days,
the head of the area claims office will forward the packet, with
recommendations, to the GCMCA for approval of an assessment not to
exceed $10,000. If the recommended assessment is over $10,000, the head
of the area claims office will then forward the packet to the
Commander, USARCS for final approval of the assessment.
(f) Final action. After considering the advice of the legal
advisor, the approval authority will disapprove or approve the claim in
an amount equal to or less than the amount recommended by the
investigating officer up to $10,000. The approval authority will notify
the claimant, and any soldier subject to his or her jurisdiction, of
the determination and the right to request reconsideration. (See
Sec. 536.144.) A copy of the investigating officer's findings and
recommendations will be enclosed with the notice. The approval
authority will then suspend action on the claim for 10 working days
pending receipt of a request for reconsideration unless he or she
determines that this delay will result in substantial injustice. The
approval authority will direct the servicing finance officer for the
soldier against whom assessments are approved to withhold such amount
from the soldier not to exceed $10,000. (See Sec. 536.142(b)). For any
soldier not subject to the approval authority's jurisdiction, the
approval authority will forward the claim to that commander who does
exercise special court-martial jurisdiction over the soldier for
collection action.
(g) Assessment. Subject to any limitations provided in appropriate
regulations, the servicing finance officer will withhold the amount
directed by the approval authority and pay it to the claimant. The
assessment is not subject to appeal and is conclusive on any finance
officer. If the servicing finance officer finds that the required
amount cannot be withheld because he or she does not have custody of
the soldier's pay record or because the soldier is in a no pay due
status, the servicing finance officer will promptly notify the approval
authority of this in writing.
(h) Post settlement action. After action on the claim is completed,
the claims office servicing the command which took final action will
retain the original claim file and forward a complete copy of the claim
file to the SPCMCA. The article 139 claim will be filed locally, IAW
the Modern Army Record Keeping System (MARKS). If a claim for the same
incident is filed UP AR 27-20, chapter 11, a copy of the article 139
claim will be incorporated into the subpart K claim file.
(i) Remission of indebtedness. Title 10, United States Code,
4837(d), which authorizes the remission and cancellation of
indebtedness of an enlisted person to the United States or its
instrumentalities, is not applicable and may not be used to remit and
cancel indebtedness determined as a result of action under Article 139.
Sec. 536.144 Reconsideration.
(a) General. Although Article 139 does not provide for a right of
appeal, either the claimant or a soldier whose pay is assessed may
request the SPCMCA or a successor in command to reconsider the action.
A request for reconsideration will be submitted in writing and will
clearly state the factual or legal basis for the relief requested. The
SPCMCA may direct that the matter be reinvestigated.
(b) Reconsideration by the original SPCMCA. The original SPCMCA may
reconsider the action so long as he or she occupies that position,
regardless of whether a soldier whose pay was assessed has been
transferred. The original SPCMCA may modify it if he or she determines
that the action was incorrect, subject to paragraph (d) of this
section. However, the SPCMCA should only modify the action on the basis
of fraud, substantial new evidence, errors in calculation, or mistake
of law.
(c) Reconsideration by a successor in command. Subject to paragraph
(d) of this section, a successor in command may only modify an action
on the basis of fraud, substantial new evidence, errors in calculation,
or mistake of law apparent on the face of the record.
(d) Legal review and action. Prior to modifying the original
action, the SPCMCA will have the claims office render a legal opinion
and fully explain the basis for modification as part of the file. If a
return of assessed pay is deemed appropriate, the SPCMCA should request
the claimant to return the money, setting forth the basis for the
request. There is no authority for repayment from appropriated funds.
(e) Disposition of files. After completing action on
reconsideration, the SPCMCA will forward the reconsideration action to
the claims office who will then file the action IAW Sec. 536.143(h).
Subpart J--Claims Cognizable Under the Foreign Claims Act
General
Sec. 536.145 Statutory authority.
The authority for this subpart is contained in the following
statutes:
(a) 10 U.S.C. 2734 as amended, commonly referred to as ``The
Foreign Claims Act.''
(b) 10 U.S.C. 2734a as amended, commonly referred to as ``The
International Agreement Claims Act.''
(c) The Act of 8 September 1961 (10 U.S.C. 2736), as amended.
(d) Act of 4 March 1923 (36 U.S.C. 121, 138b).
Sec. 536.146 Scope.
(a) This subpart implements the FCA and authorizes the
administrative settlement of claims of inhabitants of a foreign
country, or by a foreign country or a political subdivision thereof,
against the United States for personal injury or death or property
damages caused outside the United States, its territories,
commonwealths, or possessions by military personnel or civilian
employees of the DA, or claims which arise incident to noncombat
activities of the Army.
(b) Claims resulting from the activities, or caused by personnel of
another military department, service, or agency of the United States
may also be settled by Army foreign claims commissions as authorized by
this subpart.
(c) Claims arising from acts or omissions of employees of
nonappropriated fund activities may also be settled by Army foreign
claims commissions pursuant to this subpart if otherwise applicable,
but are payable from nonappropriated funds (subpart L).
Sec. 536.147 Claims cognizable under other subparts.
(a) Subparts C and E. Claims within the scope of the FCA, which
otherwise would be cognizable under subpart E will be considered first
under this subpart. Claims by foreign inhabitants covered by the FCA
may not be paid under the provisions of subpart C (see 10 U.S.C.
2733(b)(2)).
(b) Subpart I. Consideration may be given to first settling under
subpart I, any claim which is also within the scope of the FCA.
However, if the settlement of the claim under subpart I will cause
identifiable hardship to the claimant, procedures of this subpart will
be used.
(c) Subpart K. Claims cognizable under this subpart, which are also
cognizable under subpart K, will be considered first under the latter
subpart.
(d) Subpart H. Claims that may be settled under subpart H may be
settled under this part only when specifically authorized by the
Commander, USARCS. (See Sec. 536.125(b).)
Sec. 536.148 Claims provisions of treaties and agreements.
When a foreign government has assumed responsibility for settling
claims against the United States pursuant to Article VIII, NATO--SOFA,
or other similar treaty or agreement, any claim presented to U.S.
authorities will be forwarded to the appropriate United States sending
State Office, or similar office, for referral to the foreign
government. The investigation by U.S. authorities of claims cognizable
under a SOFA will normally be limited to securing evidence from U.S.
sources.
Sec. 536.149 Presentation of claims.
A claim may not be allowed under this subpart unless it is
presented within 2 years after it accrues. Such presentation may be
made to United States authorities or to a foreign government in
accordance with Article VIII, NATO-SOFA or other applicable treaty or
agreement.
Sec. 536.150 Form of claims.
(a) A claim normally will be presented in writing. A report of the
incident to the authorities stated in Sec. 536.149 by the claimant or
agent requesting compensation is an adequate presentation. Under
unusual circumstances, a claim presented orally by the claimant to U.S.
authorities may be considered acceptable. An oral claim must be reduced
to writing, however, not more than 3 years after the date on which it
accrues. The written claim must state the time, place, and nature of
the incident; the nature and extent of damage, loss, or injury; and the
amount of compensation claimed.
(b) A claim will be stated in the currency of the country where the
incident occurred, or the country where the claimant was an inhabitant
at the time of the incident. The U.S. dollar equivalent of a foreign
currency, computed at the time the claim is filed and based on the
annual Foreign Currency Fluctuation Account exchange rate (where
applicable), will determine whether a foreign claims commission has
monetary jurisdiction to settle the claim. (See Sec. 536.149.)
(c) Claims commissions and command claims service will coordinate
informally with the Chief, Special Claims Branch, USARCS to determine
whether it is necessary to comply with the mirror file requirements of
Sec. 536.21 (c) and (d), for any claim cognizable under this subpart in
which the amount claimed is greater than $50,000 and a foreign
government is not responsible for adjudication under a SOFA or other
agreement.
Sec. 536.151 Claimants.
(a) General. (1) In personal injury or property damage cases, a
claimant must have been an inhabitant of a foreign country at the time
of the incident and not otherwise excluded as a claimant. In a wrongful
death case, the proper claimants are those who are entitled by the law
of the country where the incident occurred to bring a claim for the
decedent's death, and the decedent must have been an inhabitant of a
foreign country at the time of the incident and not otherwise excluded
as a claimant. However, it is not necessary that the claimant in
personal injury and property damage cases, or the decedent in a death
case, be a citizen of, or have legal domicile in the foreign country,
to establish that he or she is an inhabitant thereof.
(2) A corporation or other organization doing business in a foreign
country on a permanent basis may qualify as a proper claimant although
organized under U.S. law.
(3) United States citizens residing overseas may be proper
claimants provided it is established that they actually are inhabitants
of a foreign country (see paragraph 7-4c(1)(a), DA Pam 27-162) and are
not otherwise excluded.
(4) The government of a foreign country and political subdivisions
thereof are proper claimants unless waiver provisions of applicable
international agreements exclude such claims.
(b) Claimants excluded. (1) A national, or a corporation controlled
by a national, of a country at war or engaged in armed conflict with
the United States or of any country allied with such enemy country, is
excluded as a claimant, unless the appropriate foreign claims
commission considering the claim or the responsible military commander,
determines that the claimant is, and at the time of the incident was,
friendly to the United States.
(2) United States military personnel and civilian employees of the
U.S. Government or its agencies and instrumentalities and their
dependents, who are normally residents of the United States and who, at
the time of the incident giving rise to the claim, are residing in a
foreign country primarily because of their own or their sponsor's duty
or employment status, are not foreign inhabitants and are excluded from
coverage under the Foreign Claims Act.
(i) Foreign born spouses, children and other dependent family
members of such military personnel and United States employees are also
deemed to be inhabitants of the United States and excluded from
coverage under this subpart if they have resided with their sponsor in
the United States and are now overseas primarily because of their
sponsor's duty assignment.
(ii) Children born to or adopted by a member of the force or
civilian component who has not been reassigned to the United States
since the date of the birth or adoption, are deemed to be an inhabitant
of the United States and excluded from coverage under this subpart from
the time they are born or adopted. However, children born or adopted
overseas will be deemed to be foreign inhabitants if there is clear
evidence that they are not a member of the sponsor's household and are
not residing overseas primarily because of the sponsors duty
assignment. For example, a child born or adopted overseas would be
deemed to be a foreign inhabitant if the child continued to reside
overseas with the other parent after their military or civilian
employee sponsor returns to the United States or is transferred to
another foreign country on permanent change of station orders. (See
paragraph 7-4c, DA Pam 27-162.)
(iii) In the case of a spouse married overseas to a member of the
armed forces or a U.S. civilian employee, the spouse continues to be a
foreign inhabitant until he or she moves with the sponsor to another
foreign country or to the United States.
(iv) Parents or other relatives who are financially dependent on a
member of the military or civilian employee, but are not members of the
household, continue to be foreign inhabitants. If they are members of
the sponsor's household they lose foreign inhabitant status once they
have resided in the United States or another foreign country with the
sponsor.
(3) Other residents of the United States, or its territories,
commonwealths, or possessions who are visiting, touring, or employed
overseas, but not inhabitants of a foreign country, are excluded.
(c) Insurers or other subrogees. (1) Under this subpart the
property claim of an insured, but not that of a subrogee, may be
considered. This precludes consideration of the claim of an insurer
subrogated by operation of law or the terms of a policy of insurance
for payments made by it to or for its insured. However, an insured
party will not be required to exhaust a remedy against an insurer,
which the insured obtained by payment of a premium to that insurer,
prior to payment of a property damage claim under this subpart.
(2) Further, no claim or any part thereof, the amount of which has
been recovered or is reasonably recoverable from workmen's
compensation, health insurance, social security, or any indemnifying
law or indemnity contract, may be paid.
(3) Provisions of paragraphs (c) (1) and (2) of this section are
intended to preclude any payment that does not go to and remain with
the injured party claimant.
(4) If the application of paragraph (c)(2) of this section would
impose severe hardship upon an individual, the claim should be
forwarded to Commander, USARCS, who is authorized to make exceptions in
individual cases upon presentation of adequate justification.
Sec. 536.152 Claims payable.
(a) A claim for death, personal injury, or loss or damage to
property may be allowed under this subpart if it resulted from a
negligent or wrongful act or omission of any of the following
categories of personnel regardless of whether the act or omission was
within the scope of their employment--
(1) Military personnel of the United States.
(2) Civilian employees of a military department of the Department
of Defense who are U.S. citizens. Claims generated by U.S. citizens who
are employees of a nonappropriated fund activity who are paid with
nonappropriated funds will be paid in accordance with the provisions of
this subpart and subpart L from nonappropriated funds.
(3) Other civilian employees who are not U.S. citizens and were
recruited or transferred from a country other than the one in which
they are employed and where the incident occurred.
(b) Claims based on the negligent or wrongful acts of the following
categories of employees will be paid under this subpart only if the act
was within the scope of their employment--
(1) Civilian employees who are not U.S. citizens, who were
recruited in the country in which they are employed, and where the
incident occurred. Claims arising from the operation of U.S. Armed
Forces vehicles or other equipment by the employees described in the
preceding sentence, however, may be paid, even though the employees are
not acting within the scope of their employment, provided the employer
or owner of the vehicle or other equipment would be liable under local
law in the circumstances involved.
(2) Officers or civilian employees of the American Battle Monuments
Commission, acting within the scope of employment. Claims generated by
such personnel will be paid from American Battle Monuments Commission
appropriations.
(3) Certain Red Cross volunteers meeting the criteria set forth in
AR 40-3, paragraph 2-42.
(c) A claim may be settled under this subpart if it arises from
non-combat activities (see glossary). Activities incident to combat,
whether in time of war or not, are excluded.
(d) Property for the loss or damage or which claims may be settled
under this subpart includes--
(1) Real property used and occupied in connection with training,
field exercises, or maneuvers. An allowance may be made for the use and
occupancy of real property arising out of trespass or other tort, even
though claimed as rent. Real estate claims founded upon contracts are
processed under the provisions of AR 405-15.
(2) Personal property bailed to the Government under an agreement,
express or implied, unless the owner has expressly assumed the risk of
damage or loss.
Sec. 536.153 Claims not payable.
A claim may not be allowed under this subpart that--
(a) Results from action by an enemy or results directly or
indirectly from an act of the armed forces of the United States in
combat, except if it arises from an accident or malfunction incident to
the operation of an aircraft of the armed forces of the United States
including its airborne ordnance, indirectly related to combat, and
occurring while preparing for, going to, or returning from a combat
mission.
(b) Is purely contractual in nature.
(c) Is one for which a foreign country is responsible under Article
VIII NATO-SOFA, or other similar treaty or agreement. (See
Sec. 536.148). However, if a foreign country refuses to recognize legal
responsibility for the claim, or to consider it under applicable treaty
provisions, the senior Army JA in country or, where the estimated value
of the claim is within USARCS authority, the Commander, USARCS, may
authorize a foreign claims commission to consider the claim.
(d) Arises from private or domestic obligations as distinguished
from Government transactions.
(e) Is based solely on compassionate grounds. (See DA Pam 27-162,
paragraph 8-4.)
(f) Is a bastardy claim.
(g) Arises from the operations of a nonappropriated fund activity,
unless generated by military personnel performing assigned duties
(subpart L).
(h) Is for the personal injury or death of a member of the armed
forces of the United States incurred incident to service. (See
Sec. 536.25.)
(i) Is for the personal injury or death of a Government employee
for whom benefits are provided by the FECA (5 U.S.C. 8101-8150).
(j) Is for the personal injury or death of an employee, including
nonappropriated fund employees, for whom benefits are provided by the
Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 901 et
seq.).
(k) Is for the personal injury or death of any employee for whom
benefits are provided under workmen's compensation type laws or
regulations, including local law or custom, in cases where contribution
is made or insurance premiums paid directly or indirectly by the United
States on behalf of the injured employee. If, in the opinion of a
foreign claims commission the claim should be considered payable; (e.g.
injuries did not result from the normal risk of employment or adequate
compensation is not payable under workmen's compensation laws,) the
file will be forwarded with recommendations through claims channels to
the Commander, USARCS, who may authorize payment of an appropriate
award. The Commander, USARCS, also may specify that all or any part of
any compensation received by the claimant from workmen's compensation
sources, as above, will be deducted from the award to claimant. The
claim of an insurance carrier subrogee who has received premiums paid
directly or indirectly by the United States on behalf of the injured
employee, however, is not payable.
(l) Is for taking of property by technical trespass, such as the
overflight of aircraft or a taking contemplated by the Fifth Amendment
to the U.S. Constitution, as distinguished from common law trespass.
(See AR 405-15, paragraph 2c, and DA Pam 27-162, paragraphs 8-46 and 8-
75).
(m) Is for reimbursement for medical, hospital, or burial expenses
furnished at the expense of the United States.
(n) Is for patent or copyright infringement. (See AR 27-60.)
(o) Is for war trophies, or articles intended directly or
indirectly for persons other than the claimant or members of his or her
immediate family such as articles acquired to be disposed of as gifts
or for sale to another, voluntarily bailed to the Army, or for precious
jewels and other articles of extraordinary value voluntarily bailed to
the DA. The preceding sentence is not applicable to claims involving
registered or insured mail. No allowance will be made for any item when
the evidence indicates that the acquisition, possession, or
transportation thereof was in violation of DA directives.
(p) Is for rent, damage, or other payments involving the
acquisition, use, possession, or disposition of real property or
interests therein by and for the DA, except as authorized by
Sec. 536.152(c)(1). Real estate claims founded upon contract are
generally processed under AR 405-15. (See DA Pam 27-162, paragraph 8-
46.)
(q) Is not in the best interests of the United States or is
contrary to public policy, general principles of equity, or the basic
intent of the FCA. Examples are claims by inhabitants of unfriendly
countries, claims by or based on injury or death of individuals
considered to be unfriendly to the United States, or claims for
property losses resulting directly or indirectly from illegal
activities of the claimant, such as drug dealing, black-marketing, or
illegal loan sharking. When a claim is considered to be not payable for
the reasons stated in this paragraph, the issue will be presented to
the Commander, USARCS for determination of the applicability of this
exclusion.
(r) Arises from the activities of the Panama Canal Commission.
(s) Is based upon an act or omission of a member or employee of the
Army, exercising due care, in the execution of a statute or regulation,
whether or not such statute or regulation is valid. However, this
exception should not be used without prior approval of the Commander,
USARCS.
(t) Is based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part of a
Federal agency, or a member or employee of the Army, whether or not the
discretion involved is abused. However, this exception should not be
used without prior approval of the Commander, USARCS.
(u) Arises in respect to the assessment or collection of any tax or
custom duty, or the detention of any goods or merchandise by any
officer of customs or excise or any other law enforcement officer.
(v) Is a claim for which a remedy is provided by the Suits in
Admiralty Act (46 U.S.C. 741-752) or the Public Vessels Act (46 U.S.C.
781790), or cognizable under subpart H, unless specifically authorized
by the Commander, USARCS. (See Sec. 536.147(d).)
(w) Is a claim arising out of an act or omission of any employee of
the Government in administering the provisions of the Trading With the
Enemy Act (50 U.S.C. App, sections 1-31). (See DA Pam 27-162, paragraph
8-8d.)
(x) Is for damages caused by the imposition or establishment of a
quarantine by the United States.
(y) Results wholly from the negligent or wrongful act of the
claimant or his or her agent. Claims involving comparative negligence
are not barred by this provision.
(z) Arises out of malicious prosecution, abuse of process, libel,
slander, misrepresentation, deceit, or interference with contract
rights.
(aa) Is for damages caused by the fiscal operations of the DA, the
Treasury, or by regulation of the monetary system.
Sec. 536.154 Compensation.
(a) In determining an appropriate award, the law and custom of the
country where the incident occurred will be used to determine what
elements of damages are payable and which individuals are entitled to
receive compensation. However, where the claimant is an inhabitant of
another foreign country and only temporarily in the country where the
incident occurred, the quantum of certain elements of damages, such as
lost wages and future medical care, may be calculated based on the law
and economic conditions in the country of the claimant's permanent
residence. Punitive damages and interest will not be allowed. Court
costs, attorney fees, bail, costs of filing a claim, and similar
charges also are not allowed.
(b) Local law or custom pertaining to contributory or comparative
negligence and to joint tortfeasors will be applied.
536.155 Computation of amount.
(a) The amount allowed will, to the extent possible, be apportioned
among claimants as prescribed by local law.
(b) After appropriate compensation for the total damages suffered
has been computed, any payment claimant has received from the
tortfeasor, or any joint tortfeasor, will be deducted. This includes
amounts collectible from a tortfeasor's or joint tortfeasor's insurance
company or amounts paid by any other third party.
(c) Deductions for insurance. (1) Normally there will be deducted
from any award the amount of any applicable insurance coverage
recovered or an amount that can be reasonably expected to be recovered
and which has been or will be paid to the claimant. In this regard,
every effort will be made to monitor the insurance aspect of the case
and encourage direct settlement between the claimant and the insurer.
(See Sec. 536.151(c)(1).)
(2) When efforts under paragraph (c)(1) of this section are of no
avail or it otherwise is determined that an insurance settlement will
not be reasonably available for application to the award, settlement
may be accomplished without making a deduction. In such cases, an
assignment of the insured's rights against the insurer will be obtained
and, in appropriate cases, reimbursement action will be instituted
against the insurer under applicable procedures.
(3) If the reason that an insurance settlement is not available is
due to insolvency or bankruptcy of the insurer, no award will be made
until prior consent has been obtained from the Commander, USARCS. In
this event, a report on a bankruptcy will be forwarded without delay
setting forth all pertinent information including the alleged reasons
for the bankruptcy and the facts concerning the licensing of the
insurer.
(d) Settlements will be stated in the appropriate foreign currency.
To determine the proper approval authority, the settlement or the
claimed amount (in claims where a settlement cannot be reached) will be
converted to the U.S. dollar equivalent (based on the annual Foreign
Currency Fluctuation Account exchange rate, where applicable) on the
date of the commission's action.
(e) Payment will be made in the currency of the country in which
the incident occurred or where the claimant resided at the time of the
incident. However, if the claimant resides in another foreign country
at the time of payment, payment in an amount equivalent to that which
would have been paid under the preceding sentence may be made in the
currency of that third country.
(f) No more than 20% of the total cost of an award to the United
States may be paid as attorney fees or as a fee by any representative.
This fee limitation should be made a part of all settlement agreements.
(g) In appropriate cases, a commission or other approval authority
can require a structured settlement with periodic or deferred payments
if it is feasible to make such arrangements in the country where the
claimants reside. Such settlement are especially appropriate on claims
of minors. In cases where the time, duration, amount or need for any
element of future damages is uncertain, the part of the award for such
damages may be paid into a reversionary trust with the reversion to the
United States.
Foreign Claims Commissions
Sec. 536.156 Appointment and functions.
(a) Claims cognizable under this section will be referred to a
foreign claims commission for processing regardless of the amount
claimed. The commander senior Judge Advocate of a command having a
command claims service will appoint necessary foreign claims
commissions to acton claims arising within his or her geographic area
jurisdiction, and on claims arising in another geographic area
jurisdiction that are transferred by agreement between the commanders
involved. The senior Judge Advocate may delegate this authority to
commander or chief of the command claims service.
(b) All other commissions will be appointed by the Commander,
USARCS, to act on any claims referred to the commission regardless of
where the claim arose. Commissions appointed by the Commander, USARCS,
for units based on CONUS may act on any claim arising out of the
operations of their unit. Any claims commission operating in or
adjudicating claims arising out of an area within the jurisdiction of a
command claims service will comply with the legal and procedural
guidance of that service.
(c) A commission may operate as an integral part of a command
claims service that will determine the cases to be assigned to it,
furnish necessary administrative services, and establish and maintain
its records. Where a commission does not operate as a part of a command
claims service, it may operate as a part of the office of a division,
corps or higher command SJA, who will perform the foregoing functions.
(d) Any appointing authority may relieve a commission appointed by
him or her. One copy of each order concerning appointment, relief, or
change of responsibility of a commission will be forwarded without
delay to the Commander, USARCS.
(e) Normally, the claims commission is responsible for the
investigation of all claims referred to it, using the procedures in
subpart B, Investigation, and any local procedures established by the
appointing authority or command claims service responsible for the area
in which the claim arose. The chief of a command claims service can
request assistance on claims investigation in their geographical areas
from units or organizations other than the claims commission. The
Commander, USARCS can do likewise for any claim referred to a
commission appointed under his authority.
(f) When a foreign claims commission intends to deny a claim, award
less than the amount claimed, or recommend an award less that the
amount claimed but in excess of its authority, it will notify the
claimant, the claimant's authorized agent, or the claimant's legal
representative, in writing by the means most likely to ensure receipt
by the claimant, of its intended action on the claim and the legal and
factual basis for that action. The purpose of this notice is to give
the claimant an opportunity to object to the commission's action and
state the reasons for the objection before final action on the claim.
Where the commission intends to award the amount claimed or to
recommend to higher authority an award equal to the amount claimed,
this procedure is not necessary.
(1) This notice should be given at least 30 days prior to final
action by the commission, except for small claims processed under the
provisions of Subpart B, Small Claims.
(2) If the commission proposes to make a partial award or to
recommend a partial award to higher authority, a settlement agreement
should be enclosed with the notice. If the commission is recommending
an award in excess of its authority, the agreement should indicate that
the recommendation is contingent upon approval by higher authority.
Claimants will be advised they may either accept the commission's
action by returning the signed settlement agreement or, if they are
dissatisfied with the commission's action or recommendation, they may
submit a response in writing stating the factual or legal reasons why
they believe the commissions proposed action is incorrect.
(3) A commission may alter its initial decision based on the
claimant's response or proceed with its intended action. If the
claimant's response raises a general policy issue, the commission may
request an advisory opinion from the Commander, USARCS while retaining
the claim for final action at its level.
(4) Upon completion of its evaluation of the claimant's response,
the commission will notify the claimant of its final decision and
advise the claimant that its action is final and conclusive by law (10
U.S.C. 2735), unless the final decision is a recommendation for payment
above its authority. In that case, the commission will forward any
response submitted by the claimant along with the commission's claims
memorandum of opinion to the approval authority and will notify the
claimant accordingly.
(5) Every reasonable effort should be made to negotiate a mutually
agreeable settlement on meritorious claims. When an agreement can be
reached, the notice and response provisions above are not necessary. If
the commission recommends an award in excess of it authority, the
settlement agreement should indicate that its recommendation is
contingent upon approval by higher authority.
Sec. 536.157 Composition.
A foreign claims commission normally will be composed of either one
or three members. Alternate members of three-member commissions may be
appointed where circumstances require and be substituted for regular
members for specific cases by order of the appointing authority. The
appointing orders will clearly state who is to designate the president
of a three-member commission. Two members of a three-member commission
will constitute a quorum, and the commission decision will be
determined by majority vote.
Sec. 536.158 Qualification of members.
A member of a foreign claims commission normally will be either a
commissioned officer or a claims attorney. At least two members of a
three-member commission must be JAs or claims attorneys. In exigent
circumstances, a qualified non-lawyer employee of the armed forces may
be appointed to a foreign claims commission subject to prior approval
by the Commander, USARCS. Such approval may be granted only upon a
showing of the employee's status and qualifications and adequate
justification of the need for such appointment (for example, lack of
legally qualified personnel). The commission will be limited to
employees who are citizens of the United States. An officer, claims
attorney, or employee of another armed force will be appointed a member
of an Army foreign claims commission only if approved by the Commander,
USARCS.
Sec. 536.159 Delegation of authority.
(a) One-member commission. Unless otherwise restricted by the
appointing authority, a one-member foreign claims commission that is a
JA or a claims attorney may consider and pay appropriate claims
presented in any amount provided a mutually agreed settlement can be
reached in an amount not over $15,000 or disapprove any claim presented
in an amount not over $15,000. In no case will the jurisdictional limit
of $15,000 be used to unfairly reduce payment of a claim meritorious in
an amount over $15,000. Any other one-member foreign claims commission
may consider and pay, in full or in part, claims presented in an amount
not exceeding $2,500 that it considers meritorious.
(b) Three-member commission. A three-member commission may take the
following actions on a claim properly before the commission, unless
otherwise restricted by the appointing authority.
(1) Disapprove a claim presented in any amount. Where a claim
presented in any amount over $50,000 is disapproved, the commission,
after final action has been taken, will forward to the appointing
authority the written notice to the claimant required by
Sec. 536.157(f), any response by the claimant and its notice of final
action on the claim.
(2) Approve and pay, in full or in part, a claim filed in any
amount which is adjudicated by the commission as meritorious in an
amount not exceeding $50,000. For claims in excess of $50,000 in which
the commission approves payment of an award for $50,000 or less, the
commission, after taking final action, will forward to the appointing
authority the written notice to the claimant required by
Sec. 536.157(f), any response by the claimant and its notice of final
action.
(3) Recommend an award in excess of $50,000. The commission will
comply with the notice and comment provisions of Sec. 536.157(f), and
forward the claim to the approval authority under cover of a claims
memorandum of opinion. Recommendations for awards in excess of the
commissions authority will be sent through any command claims service
responsible for the area in which the claim arose and, in the case of
recommendations for awards in excess of $100,000, through the
Commander, USARCS.
(4) In any case where no claim exceeds $50,000 but the total amount
to be awarded on all claims arising out of the same incident exceeds
$100,000, no action will be taken to make payment until a claims
memorandum of opinion (see Sec. 536.22) on the incident has been
forwarded and reviewed by the Commander, USARCS or his designee.
(c) TJAG, TAJAG and the Commander, USARCS or his designee at USARCS
may approve and pay, in whole or in part, any claims so long as the
amount of the award does not exceed $100,000; may disapprove any
claims, regardless of either the amount claimed or the recommendation
of the commission forwarding the claim; or, if a claim is forwarded to
USARCS for approval of payment in excess of $50,000, may refer the
claim back to the commission or to another commission for further
action.
(d) Payments in excess of $100,000 will be approved by the
Secretary of the Army, the Assistant Secretary of the Army (Financial
Management) as designee of the Secretary or other designee.
(e) Following approval, where required, and receipt of an agreement
by the claimant accepting the specific sum awarded by the commission,
the claim will be processed for payment in the appropriate currency.
The first $100,000 of any award will be paid from Army claims funds.
The excess will be reported to the Claims Division, GAO, 441 G Street,
NW., WASH DC 20548-9100, together with the documents listed in
536.35(b).
(f) The chief of an overseas command claims service may delegate to
a one-member commission the responsibility for the receipt, processing,
and investigation of any claim, regardless of amount, except those
required to be referred to a receiving state office for adjudication
under the provisions of a treaty concerning the status of our forces in
the country where the claim arose. If, after investigation, it appears
that action by a three-member commission is appropriate, the one-member
commission should send the claim to the three-member commission with a
complete investigation report to include a discussion of the applicable
local law and a recommendation for disposition.
Sec. 536.160 Advance payments.
(a) Advance payments pursuant to 10 U.S.C. 2736, as amended, in
partial payment of meritorious claims to alleviate hardship are
authorized under the conditions and procedures provided in subpart B,
advance payments. However, no advance payment is authorized if the
incident occurs in a foreign country which, pursuant to the NATO-SOFA
or other similar threat or agreement, is responsible for the settlement
of claims arising therein. An advance payment may be made in a nonscope
claim.
(b) The SJA of a command having a command claims service, or chief
of a command claims service, is authorized to approve an advance
payment under this section.
Subpart K--Personnel Claims and Related Recovery Actions
General
Sec. 536.161 Authority.
31 U.S.C. 3721, formerly 31 U.S.C. 240-243, as amended by Pub. L.
97-226, 28 July 1982 (the Act); DODD 5515.10, 17 June 1965, with C 1, 6
July 1965 destruction of personal property of military personnel or
civilian employees incident to their service, and recovery from
carriers, warehouse firms, and other third parties responsible for such
loss, damage, or destruction.
Sec. 536.162 Delegation of authority.
(a) Settlement authority. (1) The statutory limit of $40,000 in
settlement of claims and to disapprove claims regardless of the amount
claimed:
(i) TJAG.
(ii) TAJAG.
(iii) The Commander, USARCS, or the Chief, Personnel Claims and
Recovery Division.
(2) The following area delegated authority to pay up to $25,000 in
settlement of claims and to disapprove claims regardless of the amount
claimed:
(i) The SJA and, subject to limitations imposed by him or her, the
chief of the command claims service of the following commands:
(A) USAREUR.
(B) Eighth U.S. Army, Korea.
(C) USARSO.
(ii) Heads of area claims offices designated under Sec. 536.5(b)
(1) and (2), (subject to the provisions of Sec. 536.5(f).
(b) Approval authority. Heads of claims processing offices with
approval authority are delegated authority to pay up to $10,000 in
settlement of claims.
(c) Office code. Authority delegated by this paragraph will not be
exercised unless the claims settlement or approval authority has been
assigned an office code.
(d) Engineer area claims offices are not delegated approval or
settlement authority under this subpart and will forward any such
claims to the area claims office for the geographic area in which the
engineer office is located.
(e) If a claims adjudicated amount is in excess of the monetary
jurisdiction of the claims office, the JA/claims attorney will approve
and pay the claim up to the delegated authority of that office. Mark
the outside of the file ``PRIORITY'' and forward it with all
documentation (to include computer disk, paper screen and memorandum of
opinion) to the next higher claims authority for additional payment.
Sec. 536.163 Scope.
(a) This subpart prescribes the substantive bases and special
procedural rules for the administrative settlement of claims against
the United States submitted by the Active Army, ARNG, and USAR
personnel, and civilian employees of DOD and DA for damage to or loss
of personal property incident to their service. This subpart also sets
forth procedures for the administrative recovery from responsible third
parties for loss, damage, or destruction of such personal property. The
underlying Act is a gratuitous payment statute; claims thereunder do
not sound in tort even though some tort concepts are used in the
adjudication of claims under this subpart. Further, the Act is not
designed to make the United States a total insurer of the personal
property of proper claimants.
(b) The maximum amount that may be paid for any loss or damage
arising from a single incident is limited by the Act as amended by Pub.
L. 100-565, 31 October 1988, to $40,000. The maximum limit of $40,000
is specifically limited to losses of personal property occurring after
31 October 1988, and to losses resulting from evacuations or from
hostile acts directed against the United States or its officers and
employees. A maximum limit of $25,000 is applicable to losses of
personnel property occurring after 28 July 1982 and before 1 November
1988.
(c) Any claim within the scope of this subpart, which otherwise
would be cognizable under the MCA and subpart C; the FTCA and subpart
E; the Act of 9 October 1962 (10 U.S.C. 2737) and subpart E; the NGCA
and subpart F; the Maritime Claims Settlement Act and subpart H; or the
FCA and subpart J will first be considered under this subpart.
(1) If not payable under this subpart, the claim will be considered
under the other subparts prior to any disapproval. Particular attention
should be given to the nature of the claim; many alleged ``unusual
occurrences'' are actually torts, either by employees or by individuals
in their private capacities. While some incidents may not seem common
to those experiencing them, an ``unusual occurrence'' is defined as an
occurrence beyond the normal risk associated with day-to-day living and
working. An unusual occurrence does not involve a reasonably
foreseeable consequence of normal human activity. For example, having a
vehicle hit by a golf ball while driving by a golf course or struck by
an unknown vehicle in a parking lot is a reasonably foreseeable
consequence of driving a vehicle.
(2) If a claim cognizable under this subpart arises from an
incident resulting in personal injury, no payment or emergency partial
payment will be made under this subpart until an investigation
completed in accordance with Secs. 536.19 and 536.20 has been
conducted. The Commander, USARCS, Chief, Personnel Claims and Recovery
Division, or the chief of a command claims service may waive this
requirement. Prior to payment the investigation must establish that the
incident was not caused by the negligence of the claimant or an agent
of the claimant. An example of such an incident would be a fire in
quarters that results in an injury to a soldier's family member and was
presumably caused by faulty wiring, but might have been caused by the
claimant's negligence.
(3) Any claim within the scope of this subpart which is also
cognizable under Article 139 will first be considered under subpart I.
If settlement of the Article 139 claim will be unduly protracted, the
claim may be settled under this subpart and the claimant counseled to
repay any overpayment if payment is later received under the provisions
of subpart I.
(d) Any claim cognizable under this subpart that is primarily the
result of fault or negligence of a Government contractor other than a
common carrier or warehouse firm will first be referred to the
contractor or his or her insurer for settlement in accordance with DA
Pam 27-162, paragraph 2-6.
Sec. 536.164 Claimants.
(a) A claim may be presented under this subpart only by--
(1) A member of the Active Army.
(2) A member of the USAR or the ARNG who is engaged in inactive
duty for training or in active duty training.
(3) A civilian employee of DA; a civilian employee of the ARNG
funded under 32 U.S.C. 709; a civilian employee of the DOD who is not
an employee of the Department of the Navy or the Department of the Air
Force; or a continental wage scale, local wage scale, and other foreign
national local civilian employees. (See DODD 5515.10.) However, the
claims of DOD dependent school teachers and Defense Commissary Agency
civilian employees will be settled by the Service operating the
installation where that school teacher/Commissary Agency employee is
employed.
(4) The authorized agent or legal representative of paragraph (a)
(1) through (3) of this section. However, any claim presented by a
claims preparation service or other hired agent must be signed and
ratified by the proper claimant to preclude assignment of claims,
regardless of whether the claimant has executed a power of attorney.
(5) The survivors of paragraph (a) (1) through (3) of this section
in the following order of precedence:
(i) Spouse.
(ii) Child or children.
(iii) Father or mother, or both.
(iv) Brothers or sisters, or both.
(b) A member of another U.S. Armed Force may present a claim to an
Army claims office for loss of or damage to personal property incident
to his or her service. Any such claim will be investigated and
processed short of adjudication under the provisions of this subpart.
The completed file will contain all required supporting documents,
including evidence in support of the amount claimed and documents
facilitating recovery from a carrier, insurer, or other third party.
Such claims will be forwarded direct to the nearest legal office of the
service concerned for settlement. However, Marine personnel claims
should be forwarded directly to the Commandant of the Marine Corps
(MHP-40), Headquarters, United States Marine Corps, WASH DC 20380-0001.
(c) Claims of civilian employees of nonappropriated fund activities
for damage to or loss of personal property incident to their service
will be processed in accordance with this subpart and subpart L, with
payment made only from nonappropriated funds.
(d) Subrogees, assignees, conditional vendors, and similar third
parties are not proper claimants under this subpart, and their claims
are barred from payment. Further, claims for losses of subrogees and
similar third parties are barred from consideration or payment under
other subparts when the property owner could have presented a
cognizable claim for loss under the provisions of this subpart.
(e) Personnel who do not fall within one of the categories listed
in (a) above (such as Red Cross employees, foreign military personnel,
United States Organization personnel, or employees of Government
contractors, including technical representatives) are not proper
claimants under this subpart and their claims are barred.
(f) Claimants who are absent without leave (AWOL) will have any
pending claim denied once they are dropped from the rolls (DFR). The
denial letter will be mailed to the claimant's last known civilian
address.
Sec. 536.165 Claims cognizable.
The following are nonexclusive examples of categories of damage to
or loss of property that may be considered by claims approval and
settlement authorities as having been sustained incident to service.
Note that a loss unconnected with the performance of duty, particularly
a loss occurring outside of normal duty hours, would often not be
deemed incident to a civilian employee's service, even though the same
loss might be deemed incident to a soldier's service. This is
particularly true if the civilian employee is a local foreign national
employee. A claims approval or settlement authority will ask the Chief,
Personnel Claims and Recovery Division, USARCS for an advance opinion
prior to adjudicating a claim that is deemed incident to service but
does not fall within one of the following categories:
(a) Losses in quarters or other authorized places. Damage to or
loss of property by fire, flood, hurricane, or other unusual
occurrence, or by theft or vandalism may be considered, while located
at--
(1) Quarters, wherever situated, which are assigned to the claimant
or otherwise provided in kind by the Government.
(2) Quarters outside the United States, which are occupied ority
but are neither assigned to the claimant nor otherwise provided in kind
by the Government. However, a claim is not cognizable when the claimant
is--
(i) A civilian employee who is a local inhabitant.
(ii) A U.S. citizen hired as a civilian employee while residing
abroad or after moving to a foreign country as part of the household of
a person who is not a proper party claimant.
(iii) A family member residing outside the United States while the
soldier is stationed in a different country.
(iv) A local inhabitant of a U.S. territory who is in that
territory at the time of a loss when he or she is in the ARNG either
Full Time-National Guard Duty (AGR) or on active duty under Title 10,
or in the USAR on active duty for any reason.
(3) Any place of lodging wherever situated, such as a hotel, motel,
guest house, transit billet or other place, when occupied by claimant
while in the performance of temporary duty or similar authorized
military assignment of a temporary nature.
(4) Any warehouse, office, hospital, baggage holding area, or other
place authorized or apparently authorized by the government for the
reception or storage of personal property.
(b) Transportation losses. Damage to or loss of property incident
to transportation or storage pursuant to orders or in connection with
travel under orders or in performance of military duty may be
considered, if not the result of a mechanical or structural defect.
This includes property in the custody of--
(1) A common or contract carrier or any other commercial concern,
either pursuant to a Government Bill of Lading (GBL), Government
contract, or the commuted rate method (Joint Travel Regulation (JTR)
Vol II, paragraph C8001(4)). With respect to mobile homes, it is the
owner's responsibility to place the mobile home and its tires, tubes,
frame, and other parts in fit condition and to load the mobile home to
withstand the stress of normal transportation, at his or her own
expense, prior to shipment.
(2) An agent or agency of the Government, to include property
mailed at Government expense in the custody of the U.S. Postal Service.
(3) The claimant or appropriate personnel while the claimant is
traveling in a private or public vessel, vehicle, aircraft, or other
conveyance in performance of military duty.
(4) The claimant or appropriate personnel while the claimant is
traveling aboard a military vessel, aircraft, or vehicle in performance
of military duty or pursuant to orders authorizing travel, including
travel pursuant to leave orders on a space available basis.
(c) Losses due to enemy action, evacuation, hostile acts, or public
service. Damage to or loss of property may be considered which is a
direct result of--
(1) Enemy action, or threat thereof; combat, guerrilla, or other
belligerent activities, whether or not the United States was involved;
or unjust confiscation by a foreign power or its nationals of property
belonging to soldiers or U.S. national civilian employees.
(2) Acts of mob violence, terrorist attacks, or other hostile acts
directed against the United States or its officers and employees.
(3) Action by the claimant in an attempt to quiet a civil
disturbance or alleviate a public disaster.
(4) Efforts by the claimant to save a human life or Government
property.
(5) Evacuation from a foreign country on the recommendation or
order of competent authority. This subsection provides payment for
property belonging to soldiers and civilian employees and their
command-sponsored dependents, with entitlement to shipment at
Government expense, which is abandoned during an evacuation and not
recovered, or damaged by an incident of political unrest or hostile act
prompting or following such evacuation.
(d) Loss of money delivered to a Government agent. Loss of funds
neither applied as directed by the owner nor returned may be considered
when the funds were delivered to and accepted by Government personnel
authorized or apparently authorized to receive them for such purposes
as safekeeping; deposit in savings deposit program; transmission by
personal transfer account; purchase of U.S. bonds or postal money
orders; or conversion into military payment orders, Government checks,
or into another kind of currency.
(e) Vehicle losses. Vehicles are defined to include automobiles,
motorcycles, mopeds, utility trailers, camping trailers, trucks with
mounted camper bodies, motor homes, boats, boat trailers, bicycles, and
aircraft. Mobile homes and other property used as dwelling places are
not considered vehicles. Damage to or loss of vehicles and property
properly stored or contained therein may be considered when--
(1) Used in the performance of military duty, if such use was
authorized or directed for the convenience of the Government and
provided--
(i) The travel did not include commuting to or from the permanent
place of duty and,
(ii) The loss or damage did not arise as a result of a mechanical
or structural failure of the vehicle during such usage.
(2) Shipped to, from, or between an overseas area or areas at
Government expense in accordance with paragraph (b) of this section,
provided the loss or damage did not arise as a result of mechanical or
structural failure of the vehicle during such shipment.
(3) Located at quarters or place of lodging as defined in
paragraphs (a) (1), (2), and (3) of this section, which for the
purposes of this paragraph includes garages, carports, driveways,
assigned parking spaces, and lots specifically provided and used for
the purpose of parking at one's quarters, provided that the loss or
damage is caused by fire, flood, hurricane, or other unusual
occurrence, or by theft or vandalism. There is a presumption that
vehicle theft or vandalism occurs off the military installation and is
generally not compensable. Claims for theft or vandalism to vehicles
(including property stored inside a vehicle) are only payable when a
claimant proves that the theft or vandalism occurred while the vehicle
was located at his or her authorized or assigned quarters (for example,
a military police report indicates broken glass from the window is on
the driveway).
(4) Located other than at quarters on a military installation,
provided that the loss or damage is caused by fire, flood, hurricane,
or other unusual occurrence. The term ``military installation'' is used
broadly to describe any fixed land area, wherever situated, controlled,
and used by military activities or the DOD. A vehicle that is properly
on the installation should be presumed to be incident to the claimant's
service unless the application of such a presumption would be
unreasonable under the particular circumstances, such as visiting a
fellow soldier on another military installation while on leave.
(f) Clothing and articles being worn. Damage to or loss of clothing
and articles being worn while on a military installation or in the
performance of military duty may be considered, provided such loss was
caused by fire, flood, hurricane, or other unusual occurrence, or by
theft. Spilling battery acid, paint or similar substances on clothing,
or breaking eyeglasses during physical training is not an unusual
occurrence.
(g) Personal property held as evidence. Deprivation of property
held as evidence may be considered when after taking all circumstances
into consideration, the temporary loss of the property will work a
grave hardship on the claimant who is a victim of a crime.
(h) On-post robberies. Claims for losses due to theft from the
person on a military installation by the use of force, violence, or
threat to do bodily harm may be considered. If cognizable under Article
139, the claims should be considered under subpart I.
Sec. 536.166 Claims not cognizable.
The following are examples of types and categories of property
losses for which compensation will not be allowed:
(a) Property lost or damaged as a result of claimant's negligence.
Property damaged or lost, in whole or in part, as a result of any
negligence or wrongful act of the claimant, the claimant's spouse or
family member, or any agent or employee of the claimant acting in the
scope of employment, is not compensable. Negligence may be defined as
failure to exercise the degree of care that a reasonable and prudent
person would have exercised under the same circumstances.
(b) Property damaged or lost while located at quarters within the
United States that were occupied by the claimant but were neither
assigned nor otherwise provided in kind by the Government.
(c) Intangible property. Loss of property that has no extrinsic and
marketable value but is merely representative or evidence of value,
such as non-negotiable stock certificates, promissory notes, bonds,
bills of lading, warehouse receipts, insurance policies, baggage
checks, and bank books is not compensable. Similarly, a claimant may
not be compensated for the inability to use nonrefundable tickets or
recover lease or utility deposits. Loss of a thesis, or other similar
item, is compensable only to the extent of the out-of-pocket expenses
incurred by the claimant in preparing the item such as the cost of the
paper or other materials. No compensation is authorized for the time
spent by the claimant in its preparation or for supposed literary
value.
(d) Incidental expenses and consequential damages. The Act and this
subpart authorize payment for loss of or damage to personal property
only. Except as provided in Sec. 536.165, consequential damages or
other types of loss or incidental expenses (such as loss of use,
interest, carrying charges, cost of lodging or food while awaiting
arrival of shipment, attorney fees, telephone calls, cost of
transporting claimant or family members, inconvenience, time spent in
preparation of claim, or cost of insurance premiums) are not
compensable.
(e) Real property. Damage to real property is not compensable. In
determining whether an item is considered to be an item of personal
property, as opposed to real property, normally, any movable item is
considered personal property even if physically joined to the land.
(f) Articles acquired or held for sale or disposition by other
commercial transactions on more than an occasional basis, or for use in
a private profession or business enterprise.
(g) Enemy property or war trophies.
(h) Property acquired, possessed, or transported unlawfully or in
violation of local law or competent regulations or directives. This
includes loss or damage to vehicles not properly registered or insured
in compliance with local law or competent regulations or directives.
(i) Loss of money in any amount during shipment or storage with
baggage or household goods. This includes coin collections.
(j) Property stored at a commercial facility for the convenience of
the claimant and at his or her expense.
(k) Substantial fraud. The head of an area claims office may
completely deny a claim that he determines to be substantially tainted
by fraud.
(l) Not a proper claimant. See Secs. 536.164 and 536.165(a)(2).
Sec. 536.167 Time prescribed for filing.
(a) No claim may be paid under this subpart unless it is presented
in writing within 2 years after it accrues. A claim is presented when
it is received at a U.S. military establishment, not when it enters the
mails. For purposes of this subpart, a claim accrues at the time of the
incident causing the loss or damage, or at such time as the loss or
damage is or should have been discovered by the claimant through the
exercise of due diligence. In the case of multiple deliveries on the
same Government Bill of Lading, the claim accrues for those later
received items when they are delivered. The claim filed for the initial
damage will be amended to reflect the subsequently claimed items. If
personal property remains in storage after the expiration date of legal
entitlement to storage at Governmental expense, a claim normally
accrues on such expiration date.
(b) If a claim accrues in time of war or armed conflict in which
the Armed Forces of the United States are engaged, or if such a war or
armed conflict intervenes within 2 years after the claim accrues, and
if good cause is shown, then the claim may be presented not later than
2 years after the war or armed conflict is terminated. A claims office
may telephonically obtain the authority to grant additional time to
file a claim, from the Chief, Personnel Claims and Recovery Division.
If good cause for delay in filing is not established, the intervention
of war or armed conflict, in itself, will not permit payment of a claim
presented later than 2 years after accrual. Pursuant to the provisions
of Pub. L. 96-446 (94 Stat 1967), periods of captivity are excluded in
computing the 2-year statute of limitations.
(c) If a proper party claimant is notified that his or her personal
property in nontemporary storage has sustained partial damage, the
statute of limitations does not begin to run until the claimant has an
opportunity to ascertain the extent of the loss, or the claimant's
entitlement to Government shipment or storage expires, whichever occurs
sooner. However, the claimant is expected to exercise due diligence in
attempting to ascertain the extent of the loss. Moreover, when a proper
party claimant is notified that his or her personal property in
nontemporary storage at Government expense has sustained complete
destruction or loss, the statute of limitations begins to run when this
notification is received.
Sec. 536.168 Form of claim.
Claims personnel will date-stamp, log in and consider as a
personnel claim any writing received at a U.S. military establishment
if it constitutes a demand for compensation for loss of or damage to
personal property. Claims personnel will not return such writing to the
claimant without action as ``lacking documentation'' and may only
consider it abandoned in accordance with Sec. 536.234(a). For claims
cognizable under this subpart, a demand need not be for a specified sum
of money. However, the claimant must complete and submit DD Form 1842
and DD Form 1844 (List of Property and Claim Analysis Chart) as a
condition precedent to payment of the claim. Claimants will be required
to complete only one DD Form 1842 and DD Form 1844 and to provide only
one copy of supporting documentation. A demand on carrier, warehouse
firm, insurer, or other third party is not considered a claim against
the United States. Submission of DD Form 1840R (Notice of Loss or
Damage) to the claims office does not constitute presentment of a
claim. If, however, a claimant alleges that he or she filed a claim,
and the evidence shows that within the 2-year period the claimant
visited a claims office of one of the Armed Forces with an apparent
desire to obtain compensation, it may be presumed in absence of
evidence to the contrary, that the claimant, in fact, submitted a
claim.
Sec. 536.169 Presentation.
(a) A claim should, if practicable, be submitted in writing to the
claims office serving the Active Army installation where the claimant
is stationed or nearest to the point where the loss or damage occurred,
or where investigation of the facts and circumstances can most
conveniently be made. ARNG and USAR personnel will not file claims with
their unit but with the nearest Active Army installation. If submission
in accordance with the foregoing is impracticable under the
circumstances, the claim may be submitted in writing to the commander
for any installation or establishment of the Armed Forces who will
forward the claim to the appropriate Army claims office for processing.
To constitute a filing under this regulation, a claim must be presented
in writing to an agency of one of the military departments other than
the National Guard or a Reserve Component.
(b) The claimant is responsible for substantiating ownership or
possession, the fact of loss or damage, and the value of property,
especially for expensive items. The claimant is also responsible for
promptly discovering and reporting loss whenever failure to do so would
prejudice either effective investigation of the claim or effective
recovery action from a third party. Failure to do so may result in
reduction of the amount allowable or denial of the claim in accordance
with Sec. 536.181(a).
Evaluation, Adjudication, and Settlement of Claims
Sec. 536.170 Policy.
(a) The prompt, fair disposition of claims of soldiers and
civilians, consistent with the protection of the interests of the
Government, is necessary to maintain morale and to prevent financial
hardship. Claims approval and settlement authorities should exercise
reasonable discretion in the consideration of claims to achieve this
goal.
(b) The small claims procedures (subpart B, small claims)
applicable to claims that may be settled by payment of $1,000 or less
without extensive investigation should be used to the maximum extent
feasible. When this procedure is used, every reasonable effort should
be made to settle the claim within the shortest possible period,
usually one working day. However, the small claims procedure should not
be used when additional investigation is necessary to develop the facts
required for an informed disposition of the claim regardless of the
amount claimed.
(c) Within the DA, personnel claims will not be transferred except
as authorized by the USARCS or a command claims service. (See DA Pam
27-162, paragraph 2-55.)
(d) When it is necessary to disapprove a claim or to allow a sum
less than the amount claimed, the claimant must be informed either
orally or in writing of the factual or legal basis for the decision.
The first must reflect that this explanation was provided to the
claimant.
(e) When a claimant refuses to provide information concerning
private insurance coverage, the JA may assume, in the absence of
evidence to the contrary, that the claimant had private insurance
covering the entire loss and disapprove the claim.
Sec. 536.171 Preliminary findings required.
Prior to allowing or recommending the allowance of compensation for
the loss, damage, or destruction of property, the approval or
settlement authority will make the following findings:
(a) The claimant is a proper party claimant.
(b) The evidence substantiates the fact of ownership or possession
of the personal property involved and the fact of loss, damage, or
destruction as alleged.
(c) The loss, damage, or destruction of the property involved was
sustained incident to the claimant's military service or employment.
(d) The type of property claimed and the amount or quantity claimed
was reasonable or useful under the attendant circumstances for the
claimant to have used or possessed incident to military service or
employment.
(e) There is no bar to the allowance of compensation of the type of
property involved, or for the type of loss, damage, or destruction
providing the basis of the claim.
(f) The claimant certified that no part of the loss is covered by
insurance. If private insurance covers any part of the loss, the
claimant must first settle with the insurance company. See section
536.181(b)(5). (Coverage under most personal property insurance carried
by service personnel includes items lost or missing, destroyed, or
damaged by water while in custody of a public carrier.)
Sec. 536.172 Guides for computing amounts allowable.
(a) For claims of losses incident to service processed under this
subpart or subpart L, the Commander, USARCS, will periodically publish
an allowance List--Depreciation Guide specifying rates of depreciation
and maximum payments applicable to categories of property. The
Allowance List--Depreciation Guide will be binding on all Army claims
personnel. (See section 536.9(f).) For claims for losses incident to
service processed under this subpart or subpart L, no payment will be
made on an item or category of items in excess of the maximum payment
in effect at the time the claim arose, except as provided in section
536.174(b).
(b) The Commander, USARCS will promulgate additional guides,
references, and tables to assist in computing allowable compensation
under this subpart. (See DA Pam 27-162, chap 2.)
Sec. 536.173 Ownership or custody of property.
Compensation may be allowed even though the property was not in the
actual possession of the claimant at the time of the damage or loss.
Compensation may also be allowed even though the property was not owned
by the claimant, provided it was lawfully under his or her dominion and
control. However, compensation will not be allowed for damage or loss
to personal property transported to accommodate another, other than the
claimant's family members, nor will compensation for damage or loss to
a vehicle loaned to a claimant be allowed unless both the claimant and
the owner are proper party claimants. A vehicle registered in the name
of the claimant or a spouse is not deemed, as between them, to be
loaned. When a vehicle is subject to a lien, the vehicle is not deemed
to be loaned merely because the title is in the name of the lien-
holder.
Sec. 536.174 Determination of compensation.
(a) A claim may be allowed only for the amount and quantity of
personal property considered reasonable or useful for the claimant to
have used or possessed under the attendant circumstances, incident to
his or her service or employment. In determining the reasonableness or
utility of types and quantities of property included in a claim
cognizable under this subpart, an approval or settlement authority will
give consideration to the claimant's living conditions, family size,
social obligations, and need to have more than average quantities, as
well as the circumstances attending acquisition or possession of the
property and the manner of damage or loss.
(b) The maximum amounts allowable for specific types and categories
of personal property listed in The Allowance List--Depreciation Guide
constitute a determination of amount of quantity deemed reasonable or
useful. A maximum allowance per item indicates that the allowance for a
single item of the type or category of property involved will not
exceed that amount. A maximum allowance per claim indicates that the
total allowance for all items of the listed type or category is limited
to that amount. Where both a maximum amount per item and per claim are
applicable, the total allowance for all items will be limited to the
maximum per claim, which will reflect the allowance of not more than
the maximum per item for any individual item. To avoid application of
these maximum allowances, a soldier or civilian employee may obtain
additional protection on shipments by requesting full replacement
protection or increased value protection. The Chief, Personnel Claims
and Recovery Division, USARCS may waive the maximum in a particular
case for good cause shown.
(c) Compensation allowable for an item of personal property will
not exceed the actual value of the item at the time of its loss,
damage, or destruction. Guidance on determining the base figure for
actual value, using replacement costs, estimates, or the Table of
Adjusted Dollar Value, is provided in DA Pam 27-162, chapter 2. Because
soldiers are permitted to replace items missing or destroyed during PCS
moves from the Overseas Post Exchange Catalog, even when ordering from
this catalog is not otherwise permitted, such items may be valued using
this catalog.
(d) In adjusting a base figure to determine actual value, standard
yearly rates of depreciation have been established for the types and
categories of items that have generally recognized periods of useful
life; standard flat rates of depreciation have been established for
certain kinds of items that decrease in value primarily as the result
of the fact they are no longer new and unused, but which do not
continue to depreciate on a yearly basis since they are not subject to
fixed periods of useful life. (See Allowance List--Depreciation Guide.)
However, if personal inspection of damaged property indicates that it
was in better than average condition prior to damage, a lesser rate of
depreciation should be applied. Similarly, if the evidence indicates
that an item was in poor condition at time of damage, a higher rate of
depreciation is appropriate. Variations from the established rates of
depreciation will be fully explained. The following rules are to be
observed in computing the depreciation applicable to any item:
(1) Normally no depreciation is to be charged against goods during
periods of storage. However, this does not mean that deductions cannot
be taken for other reasons, such as a reduction in the market value of
an item because of changes in style or obsolescence.
(2) Do not depreciate an item which is less than six months old
(including an item subject to flat rate depreciation) except clothing
and other rapidly depreciating articles which may be subject to
considerable use in such a short period of time. Calculate yearly
depreciation from the date an item is originally acquired to either the
date of pickup (for shipment or storage claims), or to the date the
property was lost or damaged (for other personnel claims). If the
claimant acquired a used item, then the claimant should use either the
date the original owner acquired the item and the original purchase
price, or the claimant's purchase price and date he or she purchased
the item. In accordance with the Allowance List--Depreciation Guide,
compute yearly depreciation in 12 month increments (e.g., 6-17 months
equals one year), excluding the month the property was acquired and the
month that the property was picked up, lost or damaged.
(3) No item will be depreciated by more than 75 percent.
(4) No depreciation is charged against genuine antiques, objects of
art, and collector's items, except for repair of portions thereof, such
as upholstery, which requires periodic replacement or repair. For the
purpose of this rule, a ``souvenir'' is not considered a collector's
item.
(e) Compensation normally allowed for an item damaged beyond
economic repair is the actual value at the time of destruction.
However, if an item has not been totally destroyed and any part remains
useful and has a salvage value, and that part is to be retained by the
claimant, the allowance will be the value at time of destruction less
the ascertained value of the salvageable part. If the claimant does not
wish to retain any salvageable part of a destroyed item, he or she may
be allowed the full value at the time of the destruction with no
deduction for salvage value, provided the claimant turns in the
salvageable part to the Defense Reutilization and Marketing Office
prior to payment of the claim or holds the item for turn-in to the
carrier (see DA Pam 27-162, paragraph 2-44). If the item is turned in
to the Defense Reutilization and Marketing Office, a receipt for the
property, DD Form 1348-1 (DOD Single Line Item Release/Receipt
Document), will be included in the file of the paid claim. If the staff
or command JA determines that salvageable items are valued at $25.00 or
less, he or she may advise the claimant to dispose of them other than
by turn-in and this decision will be noted on the chronology sheet. In
certain situations it may be necessary for the claims office to assist
the claimant to arrange for disposition of the property.
(f) If, after payment of a claim, an approving or settlement
authority discovers that the payment was erroneous because the claimant
misrepresented the quality, quantity, age, condition, or replacement or
repair cost of items, or other facts necessary to the adjudication of
the claim, the approval or settlement authority may recalculate the
amount allowed and arrange for recoupment of the erroneous amount paid.
However, this procedure should be used sparingly, with doubts resolved
in favor of the claimant. The procedure is independent of any other
action taken against the claimant.
(g) In determining allowable amounts, cents will be rounded off to
the nearest whole dollar on each line item. Drop amounts under 50 cents
and increase amounts from 50 to 99 cents to the next dollar. Thus,
$1.49 becomes $1.00 and $2.50 becomes $3.00.
Sec. 536.175 Cognizable incidental expenses.
(a) Expenses incident to repair or replacement. In addition to
actual value, the cost of obtaining estimates of repair necessary to
substantiate amounts claimed for damaged property may be considered,
provided the action of the claimant in contracting for the estimates
appears reasonable under the circumstances or was specifically directed
by the approval or settlement authority. However, when the cost of an
estimate can be applied toward the bill due upon completion of repairs,
the cost of the estimate will not be allowed, whether or not the
claimant chooses to have the repair done.
(b) Replacement of certain documents. The fee charged for replacing
certain necessary documents such as marriage licenses, driver's
licenses, passports, or birth certificates may be allowed when these
documents are lost or destroyed.
(c) Sales tax and drayage. Sales tax and drayage (including postage
or handling charges to mail an item or replacement part) can be allowed
up to $50 per claim prior to the actual cost being incurred. However,
payment in excess of $50 will require the claimant to substantiate that
the cost has been incurred.
Sec. 536.176 Property recovered.
(a) Before approval. Do not pay claims for missing property if the
missing property is located before the claim is approved. Only the
transit related damage will be cognizable. As an exception to this
rule, compensation may be allowed for necessary items that were missing
for an unreasonable time after the expected arrival date and were
replaced by claimant prior to the items being located. Necessary items
are those that are basic to the operation of a household. If
compensation is allowed under the above exception, the claimant will
disclaim in writing further interest and ownership in such items in
accordance with paragraph (b)(2) of this section.
(b) After approval. If missing property is located after the claim
is approved for payment, the claimant will normally be advised of his
or her option to--
(1) Accept any or all of the items located and remit the amount
already allowed for such items to the United States. In certain
circumstances, the claimant will not have an option: the Chief,
Personnel Claims and Recovery Division, USARCS or his designee can
require the claimant to accept any or all of the items and remit the
amount allowed; or
(2) Disclaim in writing further interest and ownership in the
property and retain the amount approved for payment. If, however, the
approval or settlement authority determines that any of the recovered
property is substantially different in quality, price, or value from
the property claimed, the approval or settlement authority may require
the claimant to return the amount allowed for such property and accept
the property.
Sec. 536.177 Companion claims.
When two or more claims arising from the same incident are, by
reason of differences in amounts within the jurisdiction of different
approval or settlement authorities, action will be withheld on these
claims until the authority having jurisdiction over the largest claim
has determined that the claims arising out of the incident are
cognizable, unless the claims lesser in amount are clearly cognizable
and meritorious.
Sec. 536.178 Emergency partial payments.
(a) Frequently a claimant is in immediate need of funds to replace
damaged or destroyed property. An emergency partial payment up to
$2,000 is authorized under the following circumstances:
(1) A hardship situation exists that can be alleviated by providing
immediate funds for the repair or replacement of certain property lost
or damaged; and
(2) A claim has been presented.
(3) The approval or settlement authority determines that the claim
is clearly payable under this subpart, in an amount exceeding the
amount of the proposed emergency payment.
(b) The approval or settlement authority can approve an emergency
partial payment on any claim that meets the above criteria. If the
adjudicated amount exceeds the approval or settlement authority's
delegated monetary amount, pay up to the delegated amount (less the
emergency payment), mark the outside of the file ``PRIORITY'' and
transfer it with all documentation (to include computer disk, paper
screen and memorandum of opinion) to the next higher claims authority
for additional payment.
(c) Prior to making any emergency payment, the authority approving
such payment normally will obtain an executed partial acceptance
agreement from the claimant or his or her representative. Only the
Chief, Personnel Claims and Recovery Division, USARCS or his designee
can authorize emergency partial payments above $2,000. The authority
requesting an emergency partial payment above $2,000 can coordinate
telephonically with USARCS.
Sec. 536.179 Personnel claims memorandum.
(a) A personnel claims memorandum of opinion will be included in
the file of each personnel claim disapproved; forwarded for
adjudication, disapproval, or reconsideration; or forwarded with a
recommendation that there be a deviation from the Allowance List or
other established policy.
(b) A personnel claims memorandum of opinion will be signed by the
Claims JA. It will be routed through any intervening settlement
authority, addressed to the settlement authority who will take final
action (for example, a disapproval would be addressed to the SJA of an
area claims office, and a reconsideration would be addressed to the
Commander, USARCS). The memorandum will be sufficiently detailed to
explain fully and support the action taken or recommended. (See DA Pam
27-162, paragraph 2-55I for further instructions.) It will be arranged
as follows:
(1) Claimant's name and address.
(2) Date and place the incident occurred giving rise to the claim.
(3) Amount of claim, the date it was filed, and the date
reconsideration was requested.
(4) Subparts the claims were considered under, and a brief
description of the incident or of the issues raised by the claimant on
reconsideration.
(5) Facts.
(6) Opinion.
(7) Recommended action.
Sec. 536.180 Reconsideration.
A claim will be reconsidered under the conditions listed below.
Reconsiderations normally require additional investigation and review.
This additional information will be documented in the file. An approval
or settlement authority--
(a) May always reconsider his or her action if the original action
was in error or is incorrect based on new facts. This may be pursuant
to either a claimant's oral request for reconsideration or as a result
of any post-settlement review conducted on the claims file. Note that
while the original approving or settlement authority may consider a
claimant's ``oral'' request for reconsideration, claims personnel
should advise claimants that a higher settlement authority will not act
on an oral request until the claimant presents it in writing in
accordance paragraph (b) of this section. The basis for any change will
be reflected in the file.
(b) Must reconsider a claim upon the written request of the
claimant or someone acting on his or her behalf. The claimant must
clearly state the factual or legal basis for relief. However, the
reconsideration process must be considered not as an adversarial
process, but rather as an opportunity for the approval or settlement
authority to continue a dialogue with the claimant. Every effort should
be made to develop the claimant's version of the facts. A claim will be
reconsidered even if a settlement agreement has been executed.
(1) The original approval or settlement authority will modify the
original action if he or she determines that the original action was
incorrect or is incorrect based on new evidence. The basis for any
change will clearly be reflected in the file.
(2) A successor or higher approval or settlement authority will
only modify the original action on the basis of fraud, substantial new
evidence, mistake (misinterpretation ) of law or regulation, or an
error in calculation. The basis for any change will clearly be
reflected in the file.
(3) An approval or settlement authority can take final action on a
request for reconsideration if he or she informs the claimant in
writing that the claimant--
(i) Is aware of the right to have the file reviewed by USARCS; and
(ii) Will accept the additional payment as full relief on the
claim; and
(iii) Knows that if the offer is not satisfactory, the check will
still be issued (and can be cashed without prejudicing his or her right
to reconsideration); and
(iv) The file will be forwarded to USARCS for final review.
(4) If the approval or settlement authority does not grant
additional relief, or the claimant does not wish to accept an
additional payment as full relief, or the claimant does not respond by
the suspense date, the JA/claims attorney will issue any offered
payment and will forward the claim through any intervening area claims
office or command claims service to USARCS for final action. As an
exception, the Commander U.S. Army Claims Service, Europe (USACSEUR),
can take final action on any reconsideration request forwarded there by
a subordinate office so long as it does not involve approving a waiver
of a maximum allowance. The Commander, USACSEUR, will include a
complete copy of the final action and will forward the file to the
Commander, USARCS.
(c) The approval or settlement authority should consider 60 days
from the settlement date a reasonable time to either submit a written
request for reconsideration or provide an intent to file a
reconsideration request. The claimant will receive written notification
of this time limit. Any reconsideration where denial is recommended
because it was not timely filed will be forwarded according to
paragraph (b)(4) of this section. The Chief, Personnel Claims and
Recovery Division may grant relief on untimely requests for
reconsideration on the basis of substantial new evidence, fraud,
mistake of law, or mathematical miscalculation. In appropriate
situations, he may deny relief if the filing delay precluded acquiring
additional facts.
Sec. 536.181 Judge advocate procedures responsibilities.
(a) Reductions for inaction. (1) The JA will ensure that, when a
demand on a carrier or other third party (other than a private insurer
(see paragraph (a)(2) of this section) is required (see recovery from
third party) and the claimant's failure, absent good cause, to provide
notice or perform other required actions materially prejudices
effective recovery action with respect to all or part of the loss, the
amount otherwise allowable under this subpart will be reduced by the
amount of the anticipated recovery so affected on an item-by-item
basis.
(2) When a claimant fails to provide timely notice to perfect a
claim against his or her private insurer, the amount allowed, absent
good cause, the claim will be denied. In determining whether a claimant
has good cause for failing to provide timely notice to a private
insurer, the JA will, in addition to the considerations in paragraph
(a)(3) of this section, determine whether the claimant (or agent) had
knowledge of the requirement and willfully neglected to provide notice.
See Sec. 536.170(f) for cases where a claimant refuses to provide
information concerning private insurance.
(3) Good cause is determined as follows:
(i) When a claimant fails to provide timely notice to a carrier,
warehouse firm, or private insurer, settlement and approval authorities
may waive reduction action for good cause only when one of the
following circumstances directly contributed to the claimant's failure
to give timely notice:
(A) Officially recognized absence (for example TDY and off post
training exercises) resulting in claimant's absence from official duty
station for a significant portion of the notice period;
(B) Hospitalization of claimant for a significant portion of the
notice period; or
(C) Substantiated misinformation concerning notice requirements
given to the claimant by government personnel.
(ii) Requests for good cause waivers under circumstances other than
those in paragraph (a) of this section may be granted only be the
Commander, USARCS, or designee.
(4) Prior to taking reduction action, the JA will ensure the
claimant is provided an opportunity to explain the circumstances of his
or her failure to take appropriate action, and that the claim file is
documented to show the claimant was afforded this opportunity and the
result provided. The chronology sheet in the file will contain an
explanation of the JA's decision regarding reduction or the lack
thereof.
(b) Information and assistance to claimants. Claims personnel
will--
(1) Furnish the necessary claims forms (DD Form 1842 and DD Form
1844) to any individual who indicates, in person or by letter, that he
or she desires to be compensated for loss or damage to personal
property incident to service.
(2) Furnish instructions and advice as to the evidence required to
substantiate the claim, assist in the completion of claim forms, and
help with the procurement of evidence in support of the loss and the
amount claimed.
(3) Assure that the description of the items and the damage shown
on DD Form 1844 are sufficiently detailed to permit verification of the
purchase price and replacement price or repair cost of the item
claimed.
(4) Inform a claimant of the time limits within which a claim must
be filed in order to considered.
(5) Inform all claimants that they must file and settle with their
private insurance companies before the JA/claims attorney will approve
a claim for payment under this subpart. Claimants who state they have
no insurance will be asked to certify that fact and the written
statement will be included in the claim file. The claimant will be
required to submit proof of final action by the insurer. Claims
personnel will examine each claim after an insurance settlement and
determine if prior settlement by the insurer (including excess
valuation coverage) is more advantageous to the claimant. A claims JA/
attorney may decide to approve a claim for payment under this subpart
without a claimant first settling with his or her insurance in
exceptional cases where an insurance company improperly refuses to pay
a claim or the JA determines the claimant has good cause (see
Sec. 536.181(a) (2) and (3).
(6) Advise a claimant to notify the JA of any offer of settlement
or denial of liability by any third party, and to secure the JA's
written consent before executing a release or acceptance of any such
offer.
(7) Take an active and continuing role in publicizing claims
information to soldiers and their families.
(c) Other actions. The JA will ensure that--
(1) DD Form 1840R is dispatched to the appropriate third party
within 75 days of delivery of goods, that a copy of the DD Form 1840
and 1840R is dispatched to the destination transportation office, in
appropriate cases, and that a signed and dated copy is maintained and
incorporated into any claim filed. (See DA Pam 27-162, paragraph 2-55.)
(2) The servicing transportation office is directed to inspect
damaged property in appropriate cases. (See DA Pam 27-162, paragraph 2-
41).
(3) The DD Form 1844 is completed (amount allowed column, remarks
column, and where appropriate, either or both columns for exceptions)
prior to settling the claim.
(4) All documents written in a foreign language are translated into
English, either verbatim or in summarized form.
(5) Unearned freight charges are deducted for property which
carriers lose or irreparably damage. (See DA Pam 27-162, paragraph 3-
27.)
(6) A claims office representative will periodically attend local
transportation office outbound briefings to ensure that appropriate
information is being disseminated to soldiers.
(7) Inspection by claims office personnel are conducted in
appropriate cases (large claim, reconsideration, fraudulent claim) and
incorporated into the file.
(d) Financial. The JA will properly manage claims funds. This
includes--
(1) On a monthly basis, reconcile recovery accounts with the
servicing finance and accounting office (FAO) to insure moneys are
being properly deposited into the correct account;
(2) On a monthly basis, reconcile expenditure accounts with the
servicing FAO to ensure that FAO expenditures match claims office
expenditures; and
(3) Ensuring expenditures are from current fiscal year accounts.
Sec. 536.182 Finality of settlement.
Except as provided in Sec. 536.180(b), the settlement of a claim is
final and conclusive for all purposes (31 U.S.C. 3721(k)).
Recovery From Third Party
Sec. 536.183 Scope.
(a) The Army Carrier Recovery Program involves the supervising and
pursuing of administrative settlements of all claims in favor of the
Government against third parties arising from claims settled under the
preceding sections of this subpart. The Program includes making and
issuing policies, procedures, and instructions pertaining to recovery
action.
(b) The term third parties as used in this section, refers to all
types of contractors, carriers, and insurers of personal property.
Sec. 536.184 Duties and responsibilities.
(a) Field claims approval and settlement authorities are
responsible for local implementation of the Army Carrier Recovery
Program and will ensure that--
(1) Proper notice is provided to third parties (see DA Pam 27162,
paragraph 2-55).
(2) Claims are processed so that relevant time limitations on
pursuing recovery demands are met, particularly the 6-year statute of
limitations set forth in 28 U.S.C. 2415(a). In overseas areas, statute
of limitations relevant to locally procured tenders and contracts will
be observed.
(3) Servicing transportation offices provide supporting
documentation and perform necessary inspections in a timely manner.
(4) Claims files include complete, legible documentation needed to
support recovery action, including a copy of the itemized breakdown
prepared by the claimant's insurer when appropriate.
(5) Third party liability is correctly calculated in accordance
with DA Pam 27-162, chapter 3, and is reflected on all copies of the DD
Form, 1844.
(6) Written demands for reimbursement are prepared against
appropriate third parties, and demands are dispatched locally or
forwarded for centralized recovery within 30 days of settlement (see
Sec. 536.196). If this 30-day standard is not met or no demand is
prepared because liability will not be pursued, claims personnel will
explain the basis for this on the claims chronology sheet. Note,
however, that files will not be forwarded for centralized recovery
prior to the 21st day after settlement in order to afford the claimant
an opportunity to request reconsideration.
(7) Unearned freight letters are prepared when required by DA Pam
27-162, paragraph 3-27, and are either included in files forwarded for
centralized recovery or are dispatched locally after settlement with
the carrier.
(8) Settlement offers from third parties are accepted or rejected
within 30 days of receipt.
(9) Checks received are kept in a locked container in accordance
with AR 37-103, and are hand-carried to the servicing finance and
accounting office within 24 hours of acceptance.
(10) Claims files for which a third party fails to satisfy its
liability are forwarded to USARCS or to contracting officers for offset
as appropriate (see DA Pam 27-162, paragraph 3-26).
(11) Include demand packets for all claim files forwarded to USARCS
due to incidents of bankruptcies.
(b) The Commander, USARCS, is responsible for the general
administration of the Army Carrier Recovery Program and for the Army
Centralized Recovery Program. The Commander, USARCS, will ensure that
field claims offices comply with paragraph (a) of this section, and
will also ensure that--
(1) Demands for reimbursement received for centralized recovery are
reviewed for correctness and dispatched within 7 days of receipt.
(2) Within 30 days of receipt, checks matched to files are accepted
and hand-carried to the servicing finance and accounting office (within
24 hours of acceptance) or are rejected and returned to the third
party.
(3) Checks which cannot be matched to files are recorded and kept
in a locked cabinet in accordance with AR 37-103.
(4) Unearned freight letters are dispatched after settlement with
the carrier.
(5) Offset action, or other collection action as appropriate, is
initiated against any carrier or other third party that fails to
satisfy its liability.
(6) Field claims offices are promptly directed to forward files of
bankrupt third parties to USARCS to protect the Government's interests.
(7) Records are maintained of nontemporary storage contractors who
default on their contractual obligations, and of incidents that occur
in nontemporary storage warehouses, in order to pursue liability as
appropriate.
(c) The Chief, U.S. Army Claims Service, Europe, and the Chief,
U.S. Armed Forces Claims Service, Korea, will--
(1) Assume the responsibilities outlined in paragraphs (b)(1)
through (b)(5) of this section on claims forwarded for European or
Korean centralized recovery (see DA Pam 27-162, paragraph 3-22), except
that offset actions requiring action by DFAS will be forwarded to
USARCS.
(2) Review each POV shipment file forwarded for recovery action
against the European inland carrier for potential liability within 45
days of receipt. If negotiations with a POV contractor result in an
impasse, USACSEUR will arrange for dispatch of a contracting officer's
final decision within 30 days.
Sec. 536.185 Determination of liability.
A prima facie case against a third party is established when
evidence shows delivery of an item in good condition to the third
party, return of the items in a damaged condition or non-return, and
the amount of damage or loss.
Sec. 536.186 Exclusions of liability.
The third party is not always held responsible even though a prima
facie case is established. The burden of proof will be on the third
party to show that loss or damage was caused by one of the excepted
conditions that relieves it of liability. The following exceptions
emphasize or add to conditions stated in the various third party rate
tenders:
(a) Inherent vice of the article. To be used as an exclusion of
liability, the third party must establish not just the general tendency
of an item to be damaged in transit, but that the damage was due solely
to that propensity.
(b) Infestations by mollusks, arachnids, crustaceans, parasites, or
other types of pests, fumigation, or decontamination when not the fault
of the third party.
(c) Preexisting damage indicated on the inventory.
(d) Mechanical failure of an appliance unless there is evidence of
external damage or unless it can be clearly shown that the mechanical
failure was caused by the third party.
(e) Loss or damage that occurs while the shipment was in the
custody and/or control of the Government.
(f) Any item for which timely notice has not been provided to the
third party.
(g) Any loss or damage not presented to the third party within the
6 year statute of limitations for filing claims.
Sec. 536.187 Limits of liability.
(a) Carriers. (1) Liability of Through Government Bill of Lading
(TGBL) or International Through Government Bill of Lading (ITGBL)
carriers for household goods shipments is as stated on the GBL. The
TGBL carrier may be liable for the full depreciated value of the claim
or the current replacement cost of items, without application of
depreciation, if the owner purchased replacement cost protection (RCP),
also known as ``full replacement protection''. (See DA Pam 27-162,
paragraph 2-51.) For the purpose of computing weight, each piece or
package shipped constitutes one article. Any article taken apart or
``knocked down'' for handling constitutes one article. Individual
article weights are listed in the Joint Military-Industry Table of
Weights in DA Pam 27-162, Table G-1.
(2) Liability of ITGBL carriers for hold baggage shipments (Codes
7, 8, and J) is normally 60 cents per pound times the gross weight per
container (or current contract liability). Excess valuation or RCP is
not available on such shipments. (See DA Pam 27-162, paragraph 3-11.)
(3) Liability of domestic freight carriers of household goods
shipments is generally stated to be 10 cents per pound per article on
the GBL. Excess valuation or RCP is not available on such shipments.
For the purpose of computing weight under this type of shipment, each
packed item (such as a dish) constitutes one item or article. (Also see
DA Pam 27-162, paragraph 3-15.)
(4) Liability of commercial airlines is stated on the GBL. Excess
valuation or RCP is not available on such shipments. (See DA Pam 27-
162, paragraph 3-17.)
(b) Nontemporary storage (NTS) contractors. The contract for
storage of household goods is the Basic Ordering Agreement, which is
governed by DOD 4500.34-R, chapter 2-1. Under this agreement (DOD
4500.34-R, appendix H), an NTS contractor is liable for a maximum of
$50.00 per inventory line item. (As an exception to this rule,
regardless of the way a schrank is listed on the inventory, only one
charge of $50.00 can be applied when liability is calculated.) The
contractor may be liable to the full extent of the declared value if
the owner purchased an insurance policy from the warehouse firm. No
liability can be pursued against the NTS contractor when goods are
given out to a carrier unless an exception sheet was prepared by the
carrier showing any differences as to shortages or overages or the
condition of items. The exception sheet must be signed and dated by a
representative of the warehouse to be valid.
(c) Packing and containerization contractors. A local contractor is
liable for loss or damage in the amount of 60 cents per pound (or
current contract liability) times the weight per article as stated in
the liability clause of the contract. Each shipping piece or package
constitutes one article. Excess valuation or RCP is not available on
such shipments.
(d) Mobile home carriers. Liability is governed by the applicable
rate tariff, rate tender, declared valuation, or personal property
government bill of lading (PPGBL) as stated in DOD 4500.34-R, appendix
E, and generally is the full cost of repairs for damage incurred during
transit. In addition to the exclusions listed in paragraph 11-26, a
mobile home carrier is excused from liability when the carrier has
introduced substantial proof that a latent structural defect (one not
detectable during the carrier's preliminary inspection) caused the loss
or damage.
(e) Liability limit. Except for claims involving mobile home
carriers, excess valuation or RCP, the liability of any third party is
limited to the lease amount of the following:
(1) Weight liability or NTS inventory line item maximum.
(2) Amount paid by DA.
(3) Depreciated value of an item (if the third party bases an offer
of settlement on the Joint Military/Industry Depreciation Guide in DA
Pam 27-162, appendix G, Table G-2.)
Sec. 536.188 Settlement procedures in recovery actions.
(a) Offers of settlement. An offer of settlement or tender of
payment from a third party should be carefully examined giving due
regard to all factors involved. When such consideration shows the offer
or tender to be appropriate, it may be accepted. When the offer or
tender does not appear appropriate, further correspondence should be
initiated with the third party to clarify the issues.
(b) Prior acceptance of settlement by owner. DA is not bound by the
owner's acceptance of a settlement from a third party where the
acceptance was procured through fraud, duress, collusion, mistake of
fact, or misrepresentation. In such circumstances, when a claim is
filed, all correspondence with the third party must be included in the
file and further recovery action should be taken where the prior
settlement is inadequate.
(c) Establishment of timely notice. (1) Handled by one third party
only. Where one third party had responsibility for the shipment from
pickup to delivery, written exceptions on DD Form 1840 (Notice of Loss
or Damage) is evidence that items in the shipment were lost or damaged
when delivered. However, a clear delivery receipt (DD Form 1840) is
only prima facie evidence of good delivery and may be rebutted by
submission of DD Form 1840R, listing all later discovered loss or
damage. The DD Form 1840R must be dispatched with 75 days of delivery;
the date of dispatch is the controlling date. However, the normal 75-
day limit for reporting additional damage on DD Form 1840R may be
extended by the claimant's hospitalization or officially recognized
absence under the Joint Military-Industry Agreement on Loss and Damage
Rules (DA Pam 27-162, appendix E, sec. II). Implementation dates for
the use of this form and details regarding its use are found in DNA Pam
27-162, paragraph 3-4. On claims for household goods delivered prior to
these implementation dates, timely notice is established by exceptions
noted at delivery on D Form 619-1 (Statement of Accessorial Services
Performed), or on the inventory if dated and signed by a representative
of the third party. Timely notice also includes DD Form 1840, or a
letter or other document noting loss or damage dispatched to the third
party within 45 days of delivery.
(2) Handled by two or more third parties. Each time custody of the
property changes hands, the inventory will be annotated to show any
overage, shortage, and damage found. In the case of pickup by a carrier
from a NTS contractor, an exception sheet must be prepared and be
acknowledged by the warehouse firm to reflect any changes in the
condition of the goods.
Sec. 536.189 Payment to the claimant beyond the statutory limit.
When payment of the statutory limit is made on a claim determined
to be meritorious in a greater amount after the application of
individual and category maximum allowances, USARCS will apply amounts
recovered from a carrier or contractor to compensate the claimant to
the extent of the difference between the statutory limit and the amount
that would have been paid but for the statutory limit. However, when an
insurer has paid any portion of the value of the items involved, USARCS
will apply the procedure in Sec. 536.190(b). Any additional recovery
monies available will be paid out under 536.190(b), if applicable.
Sec. 536.190 Reimbursements to claimants and insurers from money
received.
USARCS is responsible for pursuing recovery on all claims paid
under this subpart that involve payment of the statutory limit,
increased released valuation purchased by the member, replacement cost
protection, and/or private insurance. When forwarding these files to
USARCS, the field office should identify them by writing in red on the
front upper left corner of the file, ``IRV,'' ``RCP,'' or ``STATUTORY
LIMIT.''
(a) Reimbursement to a claimant. Only USARCS may reimburse
claimants on files which are required to be forwarded to USARCS for
centralized recovery. In cases where a JA/claims attorney allowed
payment of a claim before settling with private insurance, a command
claims service, area claims office, or claims processing office with
approval authority may always make a supplemental payment to a claimant
when the claimant's private insurer paid more on an item than did the
Government. If a claimant has not been fully compensated, he or she can
receive a supplemental payment up to the adjudicated value of the
claimant's loss under the following circumstances:
(1) When the adjudicated value of the loss on an item exceeds an
item or category maximum and the amount collected exceeds the amount
paid on the claim, the claimant will be paid the adjudicated value to
the extent that the amount recovered exceeds the amount paid.
(2) When the adjudicated value of the loss on an item exceeds an
item or category maximum and the claimant has purchased increased
valuation protection or other depreciated value coverage, the claimant
will be paid up to the amount of the additional coverage to the extent
that this does not exceed the adjudicated value on that item or
category.
(3) When the value of the loss on an item exceeds DA's payment and
the claimant has purchased RCP, the claimant will be paid up to the
amount of the additional coverage to the extent that this does not
exceed the value determined for that item.
(b) Reimbursement to insurers by USARCS only. When a claimant has
purchased an insurance policy covering the shipmentor storage of
property and the insurance company pays any portion of the value of
items lost or damaged, the insurance company is entitled, to the extent
of its payment, to reimbursement of a pro rata share of the amount
recovered on such items.
(c) Reimbursement of recovery money to a carrier, warehouse or
contractor. If a claims office or contracting office determines that
recovery or offset against a carrier, contractor or warehouse was
improper, the claims office will forward a request (with appropriate
justification) to the Chief, Personnel Claims and Recovery Division,
USARCS, who will authorize a refund as necessary.
Sec. 536.191 Recovery action against a claimant.
A claimant is entitled to the benefit of any additional coverage
purchased (such as private insurance, excess valuation, or RCP) on an
item-by-item basis as described in DA Pam 27-162, paragraph 2-50. If a
claimant is compensated by a third party on an item and is also
compensated by DA pursuant to this subpart, the claimant is entitled to
retain only the portion of the payment that represents the total
adjudicated value of the item, without regard to a limitation on
payment due to application of a maximum allowance. If a claimant is
compensated twice and the total exceeds the amount the claimant is
entitled to retain, prompt action to recover the excess will be taken
in accordance with DA Pam 27-162, paragraph 2-55m.
Sec. 536.192 Claims arising from packing and containerization contract
shipments.
Field claims offices will process to completion recovery actions on
all packing and containerization contract shipments against the
delivering contractor unless private insurance is involved. (See
Sec. 536.190.)
Sec. 536.193 Claims caused by stevedoring contractors.
(a) The ``Liability and Insurance'' clause used in stevedoring and
related services contracts provides in pertinent part that the
contractor is liable to the Government for loss or damage to personal
property (including POV's), caused in whole or in part, by his or her
negligence or fault and that the amount determined by the contracting
officer will be withheld from payments otherwise due the contractor.
(b) Claims offices processing claims against the Government under
this paragraph for loss, damage, or destruction of personal property of
any kind (including POV's) caused in whole or in part by the negligence
of a contractor will, when final recovery action is complete, forward
the claim file directly to the Commander, USARCS. Claims offices
processing a claim involving a POV will obtain an affirmative statement
from the claimant as to whether settlement is also being processed
directly with the contractor or has already been received from the
contractor. Normally, a settlement with the contractor bars further
claim against the Government. (But see Sec. 536.186(b).) The procedures
for processing POV recovery actions against stevedores are in
Sec. 536.195.
Sec. 536.194 Claims arising from intra-theater shipments.
Unless private insurance or payment of the statutory limit is
involved (see Sec. 536.190)--
(a) Recovery action under a European intra-theater tender or a
delivering direct procurement method contract will be assembled and
forwarded to U.S. Army Claims Service, Europe, APO AE 09166-5346.
(b) Recovery action under a Korean intra-theater tender or a
delivering direct procurement method contract will be assembled and
forwarded to U.S. Armed Forces Claims Service, Korea, APO SF 96301 AP
96205-0084.
(c) Other recovery action against a delivering third party not
involving shipment under a Through Government Bill of Lading will be
processed by the field claims office to completion in accordance with
DA Pam 27-162, chapter 3.
Sec. 536.195 Claims against ocean carriers.
No demand will be made directly on an ocean carrier operating under
a Military Sealift Command contract by individual claimants or by field
claims offices.
(a) POVs.
(1) Payment less than $100. A POV shipment file will be closed and
no recovery action taken when the amount paid for the damage is less
than $100. However any file involving loss of items from vehicles will
continue to be processed regardless of the amount paid.
(2) Payment from $100-$1,999. For POV claims paid for any amount
between $100 and $1,999, and if there is evidence of ocean carrier
liability, the entire claim file will be forwarded to Military Sealift
Command, Atlantic, by transmittal letter prepared in the format shown
in DA Pam 27-162, figure 3-18. However, if there is evidence of
liability attributable to the inland shipment of POVs in Europe, the
entire claim file will instead be forwarded to the U.S. Army Claims
Service, Europe, ATTN: AEUTN-PCR, APO AE 09166-5346.
(3) Payment $2,000 or more.
(i) Non-European claims offices. If the amount paid on a POV
shipment claim is $2,000 or more, or if it appears that the POV was
dropped or was mishandled severely in shipment, claims personnel will
prioritize recovery action and handle the larger claims first. Claims
personnel will--
(A) Assert a demand against the responsible contractor if an
outport contractor, stevedore, or inland transporter damaged the
vehicle; or
(B) Forward the claim to USACSEUR for recovery if the damage
occurred while the POV was in the custody of a European outport,
stevedore, or inland shipment contractor; or
(C) Close the file and forward it for retirement if the POV was
damaged while in the custody of government personnel; or
(D) Forward the claim to the Military Sealift Command if the damage
occurred while the vehicle was in the custody of the ocean carrier
(ship) or if claims personnel cannot determine where the damage
occurred.
(ii) European claims offices. If the amount paid on a POV shipment
claim is $2,000 or more, claims personnel will prioritize assembly of
the file and will forward it to USACSEUR for recovery action 21 days
after the claim is paid.
(b) Personal property other than vehicles (for example, household
goods). After payment of a claim involving personal property other than
POV's, the entire claim file will be forwarded, in duplicate, directly
to the Commander, USARCS, for recovery action as appropriate.
Sec. 536.196 Centralized recovery program procedures.
After settlement of a claim under this subpart (including direct
procurement method (DPM) or intra-theater shipments (only if private
insurance is involved), and all mobile home claims), requiring
centralized recovery processing as determined by the Commander, USARCS,
the office paying the claim will forward the file to USARCS within 30
days. (See also Sec. 536.184(a).) All such claims where recovery action
is anticipated will include legible documentation and will be assembled
as described below.
(a) The following documents will be affixed to the left inside
cover (opposite the side bearing complete name and file number of
claimant) in descending order:
(1) First. An unsealed envelope addressed to the appropriate third
party along with the demand packet which should include the following
documents:
(i) Original DD Form 1843 (Demand on Carrier/Contractor). (See DA
Pam 27-162, paragraph 3-20).
(ii) Copy of DD Form 1164 (Service Order for Personal Property) if
applicable.
(iii) Copy of DD Form 1844. (See DA Pam 27-162, paragraph 3-19.)
(iv) Copy of DD Form 1841 (Government Inspection Report) if
available.
(v) Copies of all repair estimates.
(vi) Copies of all other supporting documents deemed appropriate.
(vii) Copy of DD Form 1840/1840R.
(2) Second. If applicable, an unearned freight packet consisting of
the original letter requesting deduction of unearned freight charges
with a copy of the GBL, DD Form 1843, and DD Form 1844 attached
thereto.
(3) Third. Copy of DD Form 1843.
(4) Fourth. If applicable, GBL and/or DD Form 1164.
(5) Fifth. Documents of timely notice as described in
Sec. 536.188(c).
(6) Sixth. DD Form 1844.
(7) Seventh. If applicable, DD Form 1841.
(8) Eighth. Repair estimates, paid bills, replacement costs,
appraisals, and so forth.
(9) Ninth. Any other documents appropriate to support the claim
against the third party.
(10) Tenth. Locally approved or adopted chronology sheets will be
the last document attached to the left inside cover of the file.
(b) The following documents will be affixed to the right inside
cover in descending order:
(1) First. All remaining copies of the DA Form 3 (Individual Claims
Data Report) (except the organizational file copy retained by the
forwarding claims office), or a print-out of the automated Individual
Claims Report, as applicable.
(2) Second. A copy of the letter to USAFAC requesting deduction of
unearned freight charges, if applicable.
(3) Third. Certified copy of the voucher from the servicing finance
and accounting office, showing the amount paid the claimant.
(4) Fourth. DD Form 1842.
(5) Fifth. If applicable, paperwork regarding private insurance
settlements.
(6) Sixth. All inventories.
(7) Seventh. All other documents, such as request for exception
sheet, orders, turn-in slips, witness statements, and correspondence.
(c) See DA Pam 27-162, paragraph 3-21, for further guidance.
Sec. 536.197 Offset actions.
(a) Offset actions against GBL carriers. Only USARCS may process
offset actions against GBL carriers. (See DA Pam 27-162, paragraph 3-
26.)
(b) Offset actions against NTS contractors. When an NTS contractor
is liable and a satisfactory settlement cannot be reached, the claims
office will forward the file to the Regional Storage Management Office
(RSMO) responsible for administering the Basic Ordering Agreements for
storage in that geographic area. (See DA Pam 27-162, paragraph 3-26.)
(c) Offset against packing and containerization contractors. When
any claims office determines that a packing and crating contractor is
liable and a satisfactory settlement cannot be made, a copy of the
complete claim file will be forwarded by letter to the local
contracting office administering the contract, requesting offset
action. The contracting officer will conduct a careful review of the
claim file and will make a determination on the issue of contractual
liability on the information contained in the file and on personal
findings of fact in accordance with the contract involved. (Also see DA
Pam 27-162, paragraph 3-26.)
(d) Title 4 CFR 102.3(b)(2) affords a carrier or contractor certain
procedural rights prior to offset. A JA/claims attorney will certify to
the contracting office that the Army has complied with 4 CFR 102.3 if
requested to do so. The JA/claims attorney will give the carrier/
contractor:
(1) Written notice of the nature and amount of the debt, and the
agency's intention to collect by offset if the debt isn't paid. The DD
Form 1843 or demand letter provides this notice.
(2) The opportunity to inspect and copy agency records pertaining
to the debt if requested.
(3) The opportunity to obtain review within the agency if the
carrier/contractor requests this. If requested, the JA/claims attorney
will review the file prior to offset. No oral hearing is required.
(4) The opportunity to enter into a written agreement with the
agency to repay the debt. A carrier/contractor will normally be allowed
45 days to follow up a settlement offer with a check. If a satisfactory
check is not received within the 45 days, the JA/claims attorney should
offset the carrier/contractor without delay.
(e) In accordance with 4 CFR 102.3(b)(5), the head of an area
claims office or claims processing office may effect offset prior to
completion of any or all of the procedures in paragraph (d) above if
failure to promptly offset would substantially prejudice the
Government's ability to collect the debt.
Sec. 536.198 Compromise or termination of recovery actions.
Subject to the limitations contained in this subpart, the
Commander, USARCS, is delegated authority to compromise or determine
collection action on claims against third parties in accordance with
the provisions of 31 U.S.C. 3711.
Sec. 536.199 Terms and abbreviations.
Definitions of terms and a glossary of abbreviations frequently
used in recovery actions are in DOD 4500.34-R, in the definitions
section, beginning at page XXXIV.
Sec. 536.200 Required references.
Each claim office will maintain copies of the following references
for recovery purposes:
(a) DA Pam 27-162.
(b) Personal Property Traffic Management Regulation (DOD 4500.34-
R).
(c) Domestic and mobile home personal property carrier approvals.
(d) ITGBL personal property carrier approvals by area/code.
(e) Local packing and containerization contracts.
Subpart L--Nonappropriated Fund (NAF) Claims
Claims Against NAF Activities
Sec. 536.201 General.
This subpart sets forth the procedures to be followed in the
settlement and payment of claims by employees of nonappropriated fund
activities for the loss of or damage to personal property incident to
their employment, and for claims generated by the acts or omissions of
the employees of such funds.
Sec. 536.202 Claims by employees for losses incident to employment.
Claims by employees for the loss of or damage to personal property
incident to employment will be processed in the manner prescribed by
subpart K and will be paid from nonappropriated funds in accordance
with Sec. 536.207.
Sec. 536.203 Claims generated by the acts or omissions of employees.
(a) Processing. Claims arising out of acts or omissions of
employees of nonappropriated funds activities will be processed and
settled in the manner specified for similar claims against the United
States except that payment will be made from nonappropriated funds in
accordance with AR 215-1, and Sec. 536.207. Relevant procedural
requirements of pertinent subparts of this part, as stated below, will
be followed except as provided in Secs. 536.206 and 536.207. However,
when the NAFI is protected by a commercial insurer, for example, flying
and parachute clubs, the claim will be referred to the insurer as
outlined in paragraph (e) of this section.
(1) Claims arising within the United States, its territories,
commonwealths, or possessions. Such claims will be processed in the
manner prescribed by subparts C, D or E as appropriate.
(2) Claims arising outside the United States, its territories,
commonwealths, or possessions. Such claims will be processed in
accordance with the provisions of applicable SOFA or in the manner
prescribed by subparts C, D or E as appropriate.
(b) Reporting and investigation. Such claims will be investigated
in accordance with subpart B of this part and AR 215-1.
(1) Reporting. All incidents involving personal injury, death, or
property damage resulting from falls, falling objects, or accidents of
like nature, occurring in post exchanges, bowling lanes, officers and
noncommissioned officers open messes, or other facilities located on
land or situated in a building used by an activity of the DA that
employs personnel compensated from nonappropriated funds, should be
reported immediately to the officer in charge of the nonappropriated
fund activity concerned. The report should be made by the employee who
initially received notice of the incident, regardless of the fact that
the individual involved denies sustaining personal injury or property
damage. Upon receipt of the report of the incident, the officer in
charge of the nonappropriated fund activity concerned will transmit the
report to the installation or other appropriate claims officer for
investigation.
(2) Investigation. (i) As soon as practicable in the investigation
of a claim generated by a nonappropriated fund activity, a
determination will be made as to whether the claim is cognizable under
this section.
(ii) Claim files that relate to claims determined to be cognizable
under this section will be marked with the symbol ``NAF'' immediately
following the claimant's name to preclude erroneous payment from
appropriated funds. This symbol will also be included in the subject
line of all correspondence.
(iii) Claims exceeding $15,000. When a claims approval or
settlement authority receives a claim against a nonappropriated fund
activity, other than the Army and Air Force Exchange Service (AAFES),
that exceeds $15,000, he or she will forward a copy to both USARCS and
the Army Central Insurance Fund, HQDA, ATTN: CFSC-RM-I, Room 1240, 2461
Eisenhower Avenue, Alexandria, VA 22331-0508. A copy of all tort claims
against AAFES will be forwarded to Headquarters, AAFES, ATTN: General
Counsel, P.O. Box 660202, Dallas, TX 75266-0202.
(iv) Customer complaints. Customer complaints other than at AAFES
activities will be settled under the provisions of AR 215-1 rather than
under the provisions of this section. AAFES generated complaints will
be handled in accordance with Exchange Service Manual 57-2.
(v) Commercial insurance.
(A) Normally a claims investigation under subpart B will not be
conducted but the claims officer will refer the claim to the insurer
and furnish copies as indicated in paragraph (c) of this section.
Assistance will be furnished to the insurer as needed. Copies of any
other required investigations may be furnished to the insurer.
(B) The status of the claim will be ascertained at key intervals to
ensure that progress is being made, negotiations are proper, and to
close the file. The Commander, USARCS will be advised of any problems.
(C) If requested by either insurer or NAFI officials, the
appropriate claims authority will assist in or conduct negotiations.
(D) Where NAFI vehicles are required to be covered by insurance in
foreign countries, the insurer will process the claim. However, if the
insurer refuses to settle the claim in timely manner or is insolvent,
the claim may be processed under subpart J procedures where applicable.
Sec. 536.204 Persons generating liability.
Claims resulting from the acts or omissions of the following
classes of persons are cognizable under this section:
(a) Civilian employees of nonappropriated fund activities whose
salaries are paid from nonappropriated funds.
(b) Active duty military personnel while performing off-duty part-
time work and for which they are compensated from nonappropriated
funds.
(c) A claims approval or settlement authority will ask the
Commander, USARCS for an advisory opinion prior to settling any claim
where the person whose conduct generated the claim does not clearly
fall within the above listed categories.
Sec. 536.205 Claims payable from appropriated funds.
Claims payable from appropriated funds will not be considered under
this section or paid from nonappropriated funds. Such claims include
those resulting from--
(a) Acts or omissions of military personnel while performing
assigned military duties in connection with nonappropriated activities.
(b) Acts or omissions of civilian employees paid from appropriate
funds in connection with nonappropriated activities.
(c) Negligent maintenance of a facility used by a nonappropriated
fund activity but for which the command concerned is responsible.
(d) Temporary use of a nonappropriated fund facility by an
appropriated fund activity.
(e) Operation of Government vehicles dispatched from motor pools on
authorized missions for nonappropriated fund activities when the driver
is a member or civilian employee of the DA.
Sec. 536.206 Settlement.
(a) Settlement. Claims cognizable under this section and processed
under subparts C, D, E, J or K will be settled by claims authorities
authorized to settle claims under those subparts subject to the same
monetary limitations and limitations on denial authority, except that
TJAG, TAJAG, and the Commander, USARCS, or designee, may settle such
claims without regard to monetary limitations.
(b) Finality of settlement. The determination of a claims
settlement authority on a claim cognizable under this section is final
and conclusive. However, a claim processed under subpart C may be
appealed in accordance with Sec. 536.51(d), and claims processed under
subparts D, E, J or K may be reconsidered in accordance with the
paragraphs concerning reconsideration in those subparts.
Sec. 536.207 Payment.
(a) Transmission for payment. When a claim for loss of or damage to
household goods or hold baggage shipped or stored by an AAFES or NAFI
employee is considered under this section and determined to be
meritorious in whole or in part, the approval or settlement authority
will transmit the entire claims file to the appropriate disbursing
office (see paragraph (b) of this section) for payment. When any other
claim is considered under this section and determined to be meritorious
in whole or in part, the approval or settlement authority will transmit
to the appropriate disbursing office the original and one copy of--
(1) The claim form.
(2) The action by the approval or settlement authority.
(3) The settlement agreement, if required by subpart B.
(b) Disbursing offices. Normally, claims settled under this section
will be transmitted for payment as indicated below.
(1) Claims over $2,500 generated by AAFES activities will be
transmitted to Headquarters, Army and Air Force Exchange Service, ATTN:
Comptroller Division, Insurance Branch, P.O. Box 660202, Dallas, TX
75266-0202.
(2) Claims not over $2,500 generated by AAFES activities will be
transmitted to the Army-Air Force Exchange Service, OSC-FA-CLAIMS, P.O.
Box 650405, Dallas, TX 76265-0405.
(3) Claims over $100 generated by other nonappropriated fund
activities will be transmitted to The Army Central Insurance Fund,
ATTN: CFSC-RM-I, Room 1240, 2461 Eisenhower Avenue, Alexandria, VA
22331-0508. When transmitting household goods or hold baggage shipment
claims for payment, forward the entire claims file so ACIF can pursue
carrier recovery. Use the ``NF'' claims database transaction code.
(4) Claims not over $100 generated by other nonappropriated fund
activities will be transmitted to that nonappropriated fund activity
responsible for payment from its funds. (See AR 215-1, paragraph 13-
24a.)
(c) Reimbursement to foreign countries. Reimbursement to a foreign
country of the United States pro rata share of a claim paid under an
international agreement will be made from nonappropriated funds.
(d) Evidence of payment. When a claim settled under this section is
transmitted to a disbursing office for payment, the approving or
settlement authority will request the appropriate disbursing office to
return evidence of the date and amount of payment.
Claims Involving Persons Other Than NAF Employees
Sec. 536.208 Claims arising from activities of nonappropriated fund
contractors.
These claims should be disposed of in a manner similar to that set
forth in DA Pam 27-162, paragraphs 8-42, 8-43, and 8-47. Post exchange
concessionaires are independent contractors and are required to obtain
workmen's compensation coverage under local law for their employees and
public liability insurance governing their operations. If a dispute
arises as to whether such insurance is available or applicable, the
claim should be forwarded to Headquarters, AAFES, ATTN: General
Counsel, P.O. Box 660202, Dallas, TX 75266-0202, prior to processing
under the preceding subparts.
Sec. 536.209 Non-NAFI RIMP claims.
The RIMP is administered by the U.S. Army Community and Family
Support Center under the provisions of AR 215-1. Non-NAFI RIMP claims
are not cognizable under any other provision of this regulation.
However, except as otherwise provided in this section, Non-NAFI RIMP
claims are subject to the same requirements that apply to other tort
claims. USARCS carefully monitors all such claims to ensure proper
investigation and resolution.
Sec. 536.210 Claims cognizable.
(a) Non-NAFI RIMP claims can arise from the activities of--
(1) Members of recreational NAFIs or authorized users of NAF
recreational property, while using such property, except real property,
in the manner and for the purposes authorized by DA regulations and the
charter, constitution, and bylaws of the particular NAF activity. This
category of persons generally has been limited to members and users of
recreational facilities such as flying clubs organized as NAFIs and
craft shops. This category does not include customers of exchanges,
snack bars, motion picture theaters, or similar facilities. Whether a
claim based on an act or omission of a member or authorized user of
other types of NAF activities, such as officers' messes, would be
cognizable under this paragraph depends on the facts and circumstances
involved, including the degree of participation by the member or
authorized user in the activities of the fund. Claims arising from the
use of NAF property, as defined in this paragraph, are not cognizable
under the FTCA or MCA, since the use of such recreational property is
by individuals not considered to be employees of the Army or NAFI
acting within the scope of their office or employment.
(2) Family child care (FCC) providers, authorized members of the
provider's household, and approved substitute providers while care
under the FCC program is being provided in the manner prescribed in AR
608-10, except as excluded below. Such claims are generally limited to
injuries to or death of children receiving care under the FCC program
which are caused by the negligence of such individuals. Claims arising
from the transportation of such children in motor vehicles and claims
involving loss or damage of property are not cognizable.
(b) Although Non-NAFI RIMP claims do not involve employees of the
United States, a claim under this section that is listed in Sec. 536.51
of this part is not payable. For example, a soldier injured on a post
golf course when hit by a golf cart operated by an authorized user is
barred by the incident-to-service exclusion from recovering under this
section.
(c) A claims approval or settlement authority will ask the
Commander, USARCS for an advisory opinion prior to settling any Non-
NAFI RIMP claim where the person whose conduct generated liability does
not clearly fall within the above listed categories. Such authorities
may also ask, through the Commander, USARCS, for an advisory opinion
from the U.S. Army Community and Family Support Center prior to
settling any claim arising under paragraph (a)(2) of this section,
where it is not clear that the injured or deceased child was receiving
care within the scope of the FCC program.
(d) The total payments for all claims (including derivative claims)
arising as a result of injury to or death of any one person are limited
to $500,000 for each incident. Continuous or repeated exposure to
substantially the same or similar general harmful activity or
conditions is treated as one incident for purposes of determining the
limit of liability.
Sec. 536.211 Procedures.
(a) Reporting. All Non-NAFI RIMP claims (regardless of the amount
claimed) and incidents that could give rise to Non-NAFI RIMP claims
will be reported to USARCS and the ACIF immediately.
(b) Investigation. Field claims offices are responsible for the
investigation of Non-NAFI RIMP claims. Such investigations will be
closely coordinated with program managers responsible for the activity
generating the claim. Close coordination with USARCS is required, and
USARCS will maintain mirror files of the investigation of all actual
and potential claims.
(c) Payment. Non-NAFI RIMP claims will be transmitted to The Army
Central Insurance Fund, ATTN: CFSC-RMB-I, Room 1240, 2461 Eisenhower
Avenue, Alexandria, VA 22331-0508 for payment.
(d) Commercial insurance. The provisions of Sec. 536.203(e) (1)
through (3) are also applicable to claims arising under this section,
except that in claims involving FCC providers, a claims investigation
will be conducted regardless of the presence of commercial insurance.
Sec. 536.212 Delegation of authority.
(a) Settlement authority. TJAG, TAJAG, and the Commander, USARCS,
or designees, are authorized to settle or deny Non-NAFI RIMP claims
regardless of the amount claimed.
(b) Approval authority.
(1) The SJA and, subject to limitations imposed by him or her, the
chief of the command claims service of the commands listed below are
delegated authority to approve, in full or in part, Non-NAFI RIMP
claims presented in the amount of $25,000 or less, and to approve such
claims regardless of the amount claimed provided an agreed settlement
of $25,000 or less is accepted in full satisfaction of the claim, but
only when the total value of all settlements, claims, and potential
claims arising out of a single incident does not exceed $25,000.
(i) USAREUR.
(ii) Eighth U.S. Army, Korea.
(iii) USARSO.
(2) Area claims offices are delegated authority to approve, in full
or in part, Non-NAFI RIMP claims presented in the amount of $15,000 or
less, and to approve such claims regardless of the amount claimed
provided an agreed settlement of $15,000 or less is accepted in full
satisfaction of the claim, but only when the total value of all
settlements, claims, and potential claims arising out of a single
incident does not exceed $25,000.
(3) The above authorities are not delegated authority to deny or
make a final offer on claims under this section. Claims requiring such
action will be forwarded to the Commander, USARCS, with an appropriate
recommendation.
(c) The decision of a settlement or approval authority on a Non-
NAFI RIMP claim is final and conclusive and is not subject to
reconsideration or appeal.
Subpart M--Affirmative Claims
General
Sec. 536.213 Authority.
(a) Federal statutory authority.
(1) The Federal Claims Collection Act (31 U.S.C. 3711), as amended
by the Debt Collection Act of 1982 and Pub. L. 101-552 (15 November
1990). The Federal Claims Collection Act states that Federal agencies
will try to collect all claims of the United States for money or
property. Among other things, it provides a basis for agencies to
recover for damage to Government property.
(2) Federal Medical Care Recovery Act (42 U.S.C. 2651-53)
(hereinafter ``FMCRA''). The FMCRA provides for the recovery of the
reasonable value of medical care furnished by the United States on
account of injury or disease incurred under circumstances creating tort
liability upon some third person. The FMCRA is implemented by EO 11060
and 28 CFR 43; the Federal Claims Collection Standards (DA Pam 27-162,
appendix M) also apply, as appropriate. However, some procedures
appropriate for liquidated debts may not be appropriate for
unliquidated claims.
(3) 10 U.S.C. 1095. 10 U.S.C. 1095 provides authority for military
health care facilities to collect the reasonable cost of health care
from health insurance and medicare supplemental policies. As amended by
Pub. L. 101-510 (5 November 1990), this statute provides claims offices
with additional authority to assert claims against automobile insurers
for care provided in an MTF on or after that date.
(b) Other authority.
(1) State Workers' Compensation laws.
(2) State hospital lien laws.
(3) Contract rights under terms of insurance policies include
medical payment coverage, uninsured and underinsured coverages, and no-
fault.
(4) State automobile no-fault laws.
Sec. 536.214 Recovery judge advocate/attorney.
(a) General. A JA or claims attorney (designated per Sec. 536.6)
assigned responsibility for asserting affirmative claims may be
designated as a recovery judge advocate (RJA) or recovery attorney, as
appropriate. This designation may be in addition to or in lieu of
designation as a claims JA or claims attorney, depending on the local
command needs and available personnel. When assertion of affirmative
claims is a full-time responsibility of an attorney or JA, the table of
distribution and allowances (TDA) position title can also reflect the
recovery function.
(b) Designation. (1) The chief of a command claims service, an area
claims office, or a claims processing office with approval authority
may designate an RJA or recovery attorney for all or part of the area
of responsibility assigned to the service or office. All designations
will be in writing. A command claims service may withhold designation
authority within its area of operations or place reasonable
restrictions on such designation by subordinate offices through
appropriate command directives.
(2) The Commander, USARCS will designate RJAs and recovery
attorneys for areas not within the responsibility of a command claims
service or area claims office.
Sec. 536.215 Purpose and policy.
(a) This subpart prescribes procedures for the administrative
determination, assertion, collection, settlement, and waiver of claims
in favor of the United States for damage to, loss, or destruction of
Army property, and for the recovery of the reasonable value of medical
care furnished or to be furnished by the United States, under the
statutes cited in Sec. 536.213. Sound governmental policy in the
collection of claims of the United States for money or property
requires aggressive agency collection action. Responsible officials
within DA will ensure that personnel asserting claims are properly
trained and supported to take timely and effective action.
(b) The subpart does not apply to the following:
(1) Claims between Federal agencies. If such a claim cannot be
resolved by negotiation, it should be referred to GAO.
(2) Maritime claims under subpart H.
(3) Affirmative actions for nonmonetary relief (for example,
evictions, specific performance, and injunctive relief).
(4) Claims arising out of tax aspects of a contract, or other
transaction or activity involving either nonappropriated or
appropriated funds.
(c) The senior Judge Advocate of a command having a command claims
service, or the commander, USACSEUR, will prescribe procedures for
implementing single service claims responsibility under DODD 5155.8 and
for implementing any provision in a treaty or international agreement
that limits or provides special methods for asserting claims in favor
of the U.S. With the concurrence of the Commander, USARCS, the senior
JA of a command having a command claims service, or the commander,
USACSEUR, is authorized to modify the procedures in this subpart to
accommodate special circumstances. The SJA will provide the Chief,
Personnel Claims and Recovery Division, with a copy of all published
guidance.
Sec. 536.216 Delegation of Authority.
Claims offices may accept the full amount asserted on an
affirmative claim. In addition--
(a) TJAG; TAJAG; the Commander, USARCS; and the Chief, Personnel
Claims and Recovery Division, USARCS, may compromise or terminate
collection action on a property damage claim asserted for $100,000 or
less; and may compromise, waive or terminate collection action on a
medical care claim asserted for $100,000 or less.
(b) The senior JA of a command having a command claims service, or
the commander, USACSEUR, may compromise, waive or terminate collection
action on a medical care or property damage claim asserted for $100,000
or less.
(c) Unless authority is withheld by the Commander, USARCS or the
chief of a command claims service, the head of an area claims office
may:
(1) Compromise up to $25,000 of the amount asserted on a property
damage or medical care claim asserted for $40,000 or less (see
Sec. 536.229(b)).
(2) Terminate collection action on a property damage or medical
care claim asserted for $25,000 or less when further collection efforts
are not feasible (see paragraph 14-19c); or waive a medical care claim
asserted for $25,000 or less when collection in any amount will result
in undue hardship to the injured party (see Sec. 536.229(d)).
(d) The head of an area claims office may delegate authority to a
claims processing office to:
(1) Compromise up to $20,000 of the amount asserted on a property
damage or medical care claim asserted for $40,000 or less (see
Sec. 536.229(d)).
(2) Terminate collection action on a property damage or medical
care claim asserted for $20,000 or less when further collection efforts
are not feasible (see paragraph 14-19c); or waive a medical care claim
asserted for $20,000 or less when collection in any amount will result
in undue hardship to the injured party (see Sec. 536.229(d)).
(e) The head of an area claims office or a claims processing
office, or the chief of a command claims service, may redelegate up to
$20,000 of his or her authority to an RJA.
(f) In determining whether a settlement authority has authority to
compromise, terminate, or waive a claim, consider the medical costs for
all parties injured in a single incident as a single assertion; and
consider the total value of Government property damaged or destroyed in
a single incident as a single assertion.
(g) Only the Department of Justice (DOJ) may approve claims
involving:
(1) Compromise, termination, or waiver of a medical care or
property damage claim asserted for more than $100,000.
(2) Settlement actions previously referred to DOJ.
(3) Settlement where a third party has filed suit against the
United States or the injured party for the same incident which gave
rise to the claim of the United States.
(h) The commander, USARCS, or the Chief, Personnel Claims and
Recovery Division, in consultation with the Department of Justice, will
approve all claims involving unusual circumstances, a new point of law
which may serve as a precedent, or a question of policy.
Sec. 536.217 Basic considerations.
(a) The Federal Claims Collection Standards. The Federal Claims
Collection Standards, (4 CFR chapter II, parts 103 and 104, reprinted
in DA Pam 27-162, appendix M), prescribe standards for compromising and
litigating property damage claims, and provide general guidance for
compromising and litigating medical care claims.
(b) Time limitations. (1) Property damage claims. Claims asserted
under the Federal Claims Collection Act for damage to Government
property are founded in tort and must be brought within three years
after the action ``first accrues'' (28 U.S.C. 2415b).
(2) Medical care claims asserted under the FMCRA or 10 U.S.C. 1095.
Claims asserted under the FMCRA or against an automobile liability
insurer under 10 U.S.C. 1095 are also founded in tort and must be
brought within three years after the action ``first accrues'' (28
U.S.C. 2415b). Although no court has ruled on this issue, claims
asserted under 10 U.S.C. 1095 against a no-fault or PIP insurer are
presumably founded in a contract ``implied in law''; if so, they must
be brought within six years (28 U.S.C. 2415a).
(3) Computing the statute of limitations. Normally, a medical care
claim ``first accrues'' on the initial date of treatment, and a
property damage claim accrues on the date that the property was
damaged. However, in computing the statute of limitations, 28 U.S.C.
2416(c) excludes the period of time before a U.S. official charged with
the responsibility to act in the circumstances knows or should know
that there is a basis for a claim. See United States v. Hunter, 645 F.
Supp 758, 760 (N.D.N.Y. 1986). For example, the three year statute of
limitations would not begin to run on most medical care claims paid by
CHAMPUS at least until the date on which CHAMPUS received the bill from
the provider.
(4) Medical care claims asserted under state law. Claims asserted
against an insurer on a third party beneficiary theory or against a
state workers' compensation fund must be brought within the applicable
state statute of limitations which can range from one to six years.
Normally, the statute of limitations would begin to run when the injury
occurred, rather than the date of initial treatment.
(c) Applicable law. Federal law does not define what constitutes a
tort. Unless the RJA can properly apply the law of another jurisdiction
under conflict of law rules, the RJA will apply the law of the state or
country where an incident occurred in determining whether the
Government has a cause of action founded in tort.
(d) Concurrent claims. (1) Claims for damage to Army property and
claims for medical care arising from the same incident will be
processed under the section applicable to each. However, efforts should
be made to include all medical care and property damage claims in a
single demand against a third party or insurance company. Settlement
agreements will be drafted so that settlement and release of one claim
shall not prejudice settlement of the remaining claim.
(2) If the incident giving rise to a claim in favor of the United
States also gives rise to a potential claim against the United States,
the claim in favor of the Government will be asserted and processed
only by a claims approval or settlement authority who has jurisdiction
to take final action on the claim against the Government.
Sec. 536.218 Claims against certain prospective defendants.
(a) U.S. Government agencies. RJAs will not assert a claim against
any department, agency or instrumentality of the United States. A self-
insured NAFI, whether revenue producing, welfare or sundry, is
considered an ``agency or instrumentality of the United States''; a
private association is not.
(b) Property damage assertions against soldiers and employees. The
report of survey system (chapter 13, AR 735-5) is the primary mechanism
for collecting from a civilian employee or a soldier (including an AR
or NG soldier) for damage to government property. Report of survey
procedures should normally be used whenever applicable. AR 735-5
requires claims offices to assert property damage claims against
soldiers and employees in two instances:
(1) Damage caused by POV's. Pursuant to paragraph 14-30, AR 735-5,
if a report of survey approving authority assesses liability against a
soldier or civilian employee for negligently damaging Government
property using a POV, and the soldier or employee does not make
restitution, the approving authority will forward the approved report
of survey to the claims office. The RJA will assert a demand against
the soldier or employee's liability insurance for the full value of the
damage. If the soldier or employee does not have insurance, the RJA
will return the action for the approving authority to withhold a
month's pay from the soldier or employee.
(2) Exhaustion of collection remedies. Pursuant to paragraph 14-
4b(7), AR 735-5, if an F&AO has exhausted all administrative
mechanisms, including IRS offset, for collecting amounts assessed under
a report of survey from a soldier, ROTC cadet or employee, the F&AO may
refer the action to the servicing claims office for recovery action
under the Federal Claims Collection Act. The RJA will assert such
claims and initiate litigation if appropriate.
(c) Medical care assertions against soldiers, employees, family
members, and retirees.
(1) Acting within scope of employment. The RJA will not assert a
medical care claim against a tortfeasor who is a civilian employee or
service member (including a reserve component member) acting within
scope of employment, whether or not the employee or member has private
insurance (cf. U.S. v. Gilman, 347 U.S. 507 (1954)). ``Scope of
employment'' is determined by the laws of the state where the injury
occurred.
(2) Persons not in scope who injure themselves. An RJA will not
assert a claim based on a tort liability theory against a tortfeasor
who is a soldier, family member or retiree for the tortfeasor's own
medical care; a person cannot create tort liability by injuring himself
or herself. In such instances, however, the RJA may assert a claim
under 10 U.S.C. 1095 against the injured tortfeasor's personal injury
protection (PIP) or medical payments insurance coverage.
(3) Persons not in scope with liability insurance. An RJA may
assert a medical care claim against the liability insurer of a service
member, civilian employee, family member or retiree who injures some
other person entitled to medical care. Interfamilial tort immunity
would not preclude the RJA from asserting a medical care claim based on
a tort liability theory for care furnished to a tortfeasor's family
members (see, e.g., U.S. v. Haynes, 445 F.2d 907 (5th Cir. 1971); U.S.
v. Moore, 469 F.2d 788 (3rd Cir, 1972).
(4) Persons not in scope with no insurance. An RJA may assert a
medical care claim against a soldier, civilian employee, family member
or retiree without insurance coverage with the approval of the Chief,
Personnel Claims and Recovery Division, USARCS, or designee. Approval
will be granted if there are aggravating circumstances, such as willful
misconduct, and the tortfeasor has sufficient assets to satisfy both
the injured victim and the Government's claim.
(d) Government contractors. Some contracts have ``cost-plus'' or
reimbursement provisions which require the government to reimburse the
contractor for many types of expenses. If it appears that the contract
would require the government to reimburse a contractor for money
recovered on an otherwise meritorious affirmative claim, the RJA will
investigate the claim and forward a recommendation to USARCS,
referencing the specific contract clauses involved. The RJA will assert
other claims against government contractors after verifying that the
contract does not contain a reimbursement provision.
(e) NG organizations and members. The RJA will investigate claims
arising from the tortious conduct of NG members. The RJA will assert
claims against NG members and their insurers in accordance with
Sec. 536.218 (b) and (c). If the NG members were acting within the
scope of employment as State employees and an assertion against the NG
organization's insurer appears appropriate, the RJA will forward a
recommendation to USARCS.
Property Claims
Sec. 536.219 General.
(a) Other regulations establish systems of property accountability
and responsibility; and provide for the administrative collection of
charges from military and civilian personnel of the United States, and
other individuals and legal entities from whom collection may be made
without litigation. However, when the investigation results in a
preliminary indication of pecuniary liability and no other method of
collection is provided, the matter will be referred for action under
this subpart. Assertions may be made under this section for the loss,
damage, or destruction of--
(1) Property under DA control (AR 735-5).
(2) Property of the Defense Supply Agency in DA custody.
(3) Property of nonappropriated fund activities of the Army (except
AAFES property unless a special agreement exists). (See AR 215-1 and AR
215-2.)
(4) Federal property made available to the ARNG (AR 735-5).
(b) This section does not apply to--
(1) Claims for damage to property funded by civil functions
appropriations.
(2) Reimbursements from agencies and instrumentalities of the
United States for damage to property.
(3) Collection for damage to property by offset against the pay of
employees of the United States, or against amounts owed by the United
States to common carriers, contractors, and states.
(4) Claims by the United States against carriers, warehousemen,
insurers, and other third parties for amounts paid in settlement of
claims by members and employees of the Army or DOD for loss, damage, or
destruction of personal property while in transit or storage at
Government expense (subpart K).
Sec. 536.220 Repayment in kind.
The RJA may accept the repair or replacement of the property in
lieu of payment of the claim. The staff officer responsible for the
property must certify accomplishment of the repair or replacement (such
as is described for motor vehicles in AR 735-5) before a release may be
executed. The authority conferred by this paragraph is not limited to
incidents involving motor vehicles.
Sec. 536.221 Property damage predemand procedures.
(1) Identification of potential claims. The RJA will ensure that
installation motor pools, housing and engineering staff sections, unit
property custodians, and similar persons apprise the claims office of
damage to DA property. In addition, claims personnel will review MP
blotters and reports, civilian news sources, reports of survey,
magistrate court proceedings, line of duty and AR 15-6 investigations,
and similar reports to identify additional property damage cases. A
claims office designated as the NG point of contact for a state will
coordinate with NG officials to ensure that NG units appoint unit
claims officers and report potential claims.
(b) Transfer of responsibility. If another claims office is better
situated to investigate and assert a property damage claim, the claims
office will coordinate with that office. The Chief, Affirmative Claims
Branch, USARCS, will resolve any disagreements. In addition, the office
designated as the NG point of contact for a state will forward
potential claims arising in another office's area of responsibility to
that office.
(c) Investigation. Claims personnel will investigate potential
incidents, question witnesses to determine the facts and circumstances,
and identify all available insurance coverage. Claims personnel may
directly request assistance from other DOD claims offices. Claims
personnel may also request an investigation of an incident by a unit
claims officer for the unit or organization responsible for the damaged
or destroyed property, or, when the investigation may be more
practically conducted by the claims officer of some other unit or
organization, by another unit claims officer. If no other report has
been prepared, the unit claims officer will prepare DA Form 1208.
Claims personnel will obtain a breakdown of costs from the custodian of
the property.
(d) Closing potential claims without assertion. If the RJA
determines that there is no tort liability or that the potential
recovery is too small to be worth pursuing, he or she will dispose of
the notification without asserting a claim. If a potential claim file
was opened, claims personnel will annotate the basis for closing the
potential claim on the chronology sheet referencing the Federal Claims
Collection Standards.
(e) Asserting demands. If there is a legal and factual basis for
the Government to recover, claims personnel should notify both the
tortfeasor and the tortfeasor's insurer. The assertion letter should
outline the facts and cite the Federal Claims Collection Act as the
basis for recovery. The claims office may also cite local law. The
claims office should assert the claim for the full costs to the
Government, if known, or state that the costs are still being
ascertained. Where appropriate, the assertion letter should also
provide the option to repair the damaged property or to replace it in
kind.
Medical Care Claims
Sec. 536.222 General.
(a) Army claims offices assert claims against tortfeasors and
insurers for medical and dental care which is furnished to a soldier,
family member or retiree at Army expense to treat an injury or disease
resulting from tortious conduct. In states that have modified
traditional tort liability, Army claims offices also assert claims
against insurers other than health benefits insurers, such as no-fault
and medical payments automobile insurers, and workers' compensation
funds. In doing so, claims offices coordinate their efforts with the
injured party's efforts to recover other damages from tortfeasors and
insurers.
(b) Claims offices will forward potential claims for medical care
furnished to service members, family members or retirees of Air Force,
Navy, Marine Corps or Coast Guard to the nearest installation or office
of that service. As an exception to this rule, however, claims offices
may assert and collect claims for medical care provided to retirees of
another service and their dependents if:
(1) medical care was furnished at the local Army MTF; and
(2) the incident giving rise to the claim occurred near the Army
installation; or
(3) the retiree resided near the Army installation. In these
exceptional situations, the claims office must ensure that the retiree
is not receiving care at another service's MTF. The claims office must
also notify USARCS as well as the nearest installation or office of the
retiree's service that it is handling the claim.
(c) In some instances, the Army and the VA will both pay for care
provided to a soldier or retiree. The VA, however, is precluded from
asserting claims for ``service-connected'' injuries. Accordingly:
(1) If a soldier is injured and is discharged from the service, the
claims office will assert claims for the reasonable value of medical
care furnished at Army expense (including care furnished in a VA
facility) prior to a soldier's discharge. Claims offices will not
assert for the value of medical care furnished at VA expense, but the
RJA will consider future care provided by VA in determining whether to
approve a waiver or compromise.
(2) If a retiree is injured and receives some care paid for by the
Army and other care in a VA facility, the claims office will coordinate
with the nearest VA office and assert a claim for the full value of the
care provided. The office will remit the amount recovered for care
provided at VA expense to the VA.
Sec. 536.223 Recovery Rights under the FMCRA.
Pursuant to the Federal Medical Care Recovery Act the Government
may pursue recovery of medical costs under any of the following
tactics:
(a) Subrogation. The United States is subrogated to any rights or
claims held by a person to whom the Government has provided medical
care against the tortfeasor who caused him or her to be injured. As
subrogee, the United States can recover from the wrongdoer the
reasonable value of the medical care it has furnished or will furnish
the injured party.
(b) Intervention. The United States can intervene in an injured
party's suit against a tortfeasor or bring suit as the assignee of an
injured party's right of action.
(c) Independent Action. The United States can assert
administratively and litigate a medical care claim in its own name.
(d) Item of Special Damages. The injured party's attorney can
assert the Government's claim as an item of special damages in an
injured party's suit against the tortfeasor.
Sec. 536.224 Identification of potential medical care recovery claims.
(a) By MTF personnel. (1) The MTF commander will ensure that the
claims office is notified of instances where the MTF provides or is
billed by a civilian facility for inpatient or outpatient care
resulting from injuries such as broken bones or burns arising from
automobile accidents, gas explosions, falls, civilian malpractice, and
similar incidents which do not involve collections from a health
benefits or medicare supplemental insurer. Claims personnel will
coordinate with MTF personnel to ensure that inpatient and outpatient
records, and emergency room and clinic logs are properly screened to
identify potential cases.
(2) The MTF commander will also ensure that the MTF does not
release billings or medical records, or respond to requests for
assistance with worker's compensation forms, without coordinating with
the RJA.
(b) By CHAMPUS fiscal intermediaries. The CHAMPUS fiscal
intermediary is required to identify and to promptly mail claims
involving certain diagnostic codes to the claims office designated as
the state point of contact. The fiscal intermediary is required to
provide the contact office with a personal injury questionnaire
completed by the injured party and a copy of the CHAMPUS Explanation of
Benefits showing the amount that CHAMPUS paid on the claim.
(1) In accordance with chapter 5 of the CHAMPUS Fiscal Intermediary
Operations Manual (September 1991), a fiscal intermediary must suspend
payment on a claim with possible medical care recovery until the
injured party properly completes the personal injury questionnaire.
Within 15 working days after receiving and evaluating the completed
questionnaire, the fiscal intermediary is required to dispatch possible
medical care recovery cases to the appropriate claims office. The
contact office must work with the fiscal intermediary to ensure that
claims are properly identified and forwarded in a timely manner. The
claims office should document persistent problems and notify USARCS.
(2) Prior to settlement of a CHAMPUS claim, claims offices should
recontact the fiscal intermediary to ensure that all amounts paid for
by CHAMPUS are included in the Government's assertion.
(c) By claims personnel. The RJA will ensure that MTF comptroller,
clinic, and Patient Administration Division records are screened to
identify potential medical care recovery cases. The RJA will also
coordinate with Navy and Air Force claims offices and MTFs to ensure
that they identify potential claims involving treatment provided to
Army personnel. To the extent possible claims personnel will review
civilian police reports, military police blotters and reports, news
reports, magistrate court proceedings, line of duty and AR 15-6
investigations, and similar sources to identify other potential medical
care recovery claims.
Sec. 536.225 Medical care procedures following identification.
(a) Opening potential claims. Unless it is obvious from the
notification documents that there is no potential recovery, claims
personnel will open a potential claims file on each incident
identified. Until the Affirmative Claims Management Program is revised
to include a ``potentials database,'' potential claims will be recorded
in the Claims Journal (DD Form 1667).
(b) Transfer of responsibility. (1) Several claims offices may be
notified of incidents involving more than one injured party or
treatment at more than one facility. If an RJA has reason to believe
that this has occurred, the RJA will contact the other offices to
determine which office has the most significant contacts and should
assert the claim. The office closest to where the injury occurred is
not necessarily the office with the most significant contacts. In the
event that offices cannot agree, they will refer the matter to the
Chief, Affirmative Claims Branch, USARCS for a decision. The claims
office will notify the MTF if it transfers responsibility for a claim
that the MTF referred.
(2) The office designated as the CHAMPUS or NG point of contact for
a state will forward potential claims arising in another office's area
of responsibility to that office.
(c) Investigation. If MTF personnel have not already collected the
necessary information, claims personnel will dispatch questionnaires to
injured parties to determine the facts and circumstances and identify
all available insurance coverage. Claims personnel will obtain medical
records and billings to determine the value of the Government's claim,
and will contact witnesses and consult with medical personnel as
appropriate. RJAs may direct unit claims officers to investigate
incidents and may request assistance from other DOD claims offices as
needed.
(d) Closing potential claims without assertion. If the RJA
determines that there is no tort liability or possible recovery from an
insurer or workers' compensation fund, or that the potential recovery
is too small to be worth pursuing, he or she will dispose of the
notification without asserting a claim. If a potential claim file was
opened, claims personnel will annotate the basis for closing the
potential claim on the chronology sheet. If an MTF provided the
notification, claims personnel will return the notification with a
dated and signed notation, ``Per RJA, no third party recovery.''
(e) Asserting demands. If there is a legal and factual basis for
the Government to recover, claims personnel will assert a demand
against each tortfeasor and insurer. Claims personnel should place
tortfeasors and insurers on written notice of the Government's right to
recover even if the injured party's attorney enters into a
representation agreement (see Sec. 536.226(b)).
(1) Automobile case--tort liability. If care was wholly or partly
provided in an MTF on or after 5 November 1990, the claims office will
assert demands against the tortfeasor and his insurer citing both the
FMCRA and 10 U.S.C. 1095. If care was provided in a civilian hospital
or was provided before 5 November 1990, the office will only cite the
FMCRA as a basis for recovery.
(2) Automobile cases--no tort liability. If care was wholly or
partly provided in an MTF on or after 5 November 1990, the claims
office will assert demands against the injured party's Personal Injury
Protection (PIP), medical payments, or no-fault insurance citing 10
U.S.C. 1095. If care was provided in a civilian hospital or was
provided before 5 November 1990, the office will cite applicable state
insurance law recognizing the United States as a third party
beneficiary of an injured party's automobile insurance.
(3) Automobile cases--multiple sources of recovery. If the claims
office can recover from the tortfeasor's automobile liability and from
the injured party's non-liability coverage, the claims office should
put both insurers on notice of the claim and should first attempt to
collect from the no-fault insurer. If the tortfeasor is an uninsured
motorist and the injured party has uninsured/underinsured motorists'
coverage, the claims office should attempt to recover from the injured
party's insurer while following the procedures in Sec. 536.228(a). See
Sec. 536.227(e) if the injured party has health benefits insurance.
(4) Special rules applicable to CHAMPUS ``primary payers.''
Pursuant to 10 U.S.C. 1079(j)(1) and 1086(g), workers' compensation and
the injured party's no-fault, PIP, medical payments, and uninsured/
underinsured motorist's coverage are considered ``primary'' to CHAMPUS.
Before the fiscal intermediary pays the injured party's medical bills
and notifies the claims office to assert a claim against the
tortfeasor, the fiscal intermediary is required to verify that these
``primary payers'' have paid.
(i) If the fiscal intermediary overlooks such coverage, the claims
office will immediately assert a demand against the injured party's
insurer (or the workers' compensation fund) citing 10 U.S.C. 1079(j)(1)
in addition to other sources of authority. If the insurer has already
disbursed the policy limits to the injured party, the claims office
will request repayment from the injured party. The claims office will
return money recovered in this manner to CHAMPUS (see
Sec. 536.231(d)(3).
(ii) If the injured party or the injured party's insurer decline to
pay and the claims office does not recover the full amount asserted
from the tortfeasor's liability insurer, the claims office will forward
the file to USARCS, which will refer the matter to the OCHAMPUS General
Counsel. In this instance, the claims office will not waive or
compromise any portion of the Government's claim because of undue
hardship to the injured party without the approval of Chief, Personnel
Claims and Recovery Division, USARCS.
(5) On-the-job injuries. In states that recognize the United States
as a beneficiary of state workers' compensation systems, the claims
office will present a claim to the appropriate office.
(6) Other injuries. Other instances giving rise to third party
liability include gas explosions, malpractice by civilian physicians,
slip-and-fall incidents, and product liability cases. Claims offices
will assert demands against the tortfeasor and his insurer citing the
FMCRA.
(f) Determination of the amount asserted.
(1) MTF costs. Recovery for MTF care is presently based upon
multiple ``clinical group'' per diem inpatient rates and a single per
visit outpatient rate established by the Office of Management and
Budget (OMB). Claims personnel should obtain a billing from each MTF.
The RJA should, however, obtain information from the MTF registrar and
adjust the amount asserted if it appears that the billings include
inpatient days where the injured party was retained in the MTF for
administrative purposes rather than medical needs.
(2) CHAMPUS costs. Recovery for inpatient care provided in civilian
hospitals and paid through CHAMPUS is based upon the CHAMPUS
``Diagnosis Related Group'' (DRG) rates, regardless of the ``actual''
costs. Rates for outpatient care are based on the CHAMPUS ``allowable
charge'' for that medical service. Claims offices should assert for the
amount that CHAMPUS paid even though this can sometimes exceed the
amount that the civilian hospital billed.
(3) Ambulance services. Ambulance and air ambulance services
provided to soldiers, family members and retirees are ``medical costs''
within the meaning of the FMCRA and 10 U.S.C. 1095, but they are not
included in the OMB rates. Claims offices should try to obtain a
specific breakdown of costs from the MTF or the unit providing the
services and include these in the amount asserted.
(4) Burial expenses. If a soldier dies from injuries received and
is buried at Government expense, the installation Mortuary Affairs
Office completes DD Form 2063 and itemizes expense data on this form.
While burial expenses are not ``medical care'' within the meaning of
the FMCRA or 10 U.S.C. 1095, many insurance policies provide for the
payment of such expenses. Claims offices may assert a demand for burial
expenses incurred by the Government if the insurance contract provides
for payment of such expenses and state law recognizes the United States
as a third party beneficiary of the contract. Claims personnel should,
however, be extra sensitive to the possibility that the insurance
proceeds might be inadequate and should consider waiving or
compromising the Government's claim in appropriate cases to avoid undue
hardship to the deceased injured party's next of kin.
Sec. 536.226 Relations with the injured party.
(a) Claims personnel will advise the injured party and/or his
attorney that--
(1) The United States has a right to recover the reasonable value
of medical care that has been furnished or will be furnished in the
future.
(2) The injured party is required to cooperate with the United
States by providing a complete statement of the facts and circumstances
surrounding the injury, information about any legal action brought
against any prospective defendant, and information about and copies of
any insurance policies.
(3) The injured party should not execute a release or settle any
claims without notifying the RJA.
(4) The injured party may consult with a legal assistance attorney
if he or she is otherwise entitled to legal assistance.
(b) Claims personnel should attempt to coordinate action to collect
the claim of the United States with the injured party's action to
collect his or her own claim against a tortfeasor or insurer.
(1) The RJA may enter into a written agreement with the injured
party's attorney to assert the Government's claim and to include it as
an item of special damages if the injured party sues. The agreement
must state that the Government will not pay counsel fees, and that the
attorney will not compute his fee based on the Government's portion of
any recovery. The agreement must also state that the Government must be
consulted regarding any potential compromise and must agree to any
settlement.
(2) The RJA should coordinate with the injured party's attorney to
ensure that any request for compromise or waiver of the Government's
claim is considered as far in advance of settlement as is practical.
(3) The RJA may arrange to make local witnesses available for the
injured party's attorney. With approval from USARCS, the RJA may
arrange to make other Army witnesses available for the injured party's
attorney if it is in the Government's best interests to do so. Any such
request must be submitted as far in advance as practical. The
appearance of present and former DA military and civilian personnel as
witnesses is governed by AR 27-40, Chapter 7.
(4) The RJA should immediately terminate a representation agreement
and independently pursue the Government's right to recover if the
injured party's interests conflict with the Government's interests, or
if the injured party's attorney fails to keep the RJA informed of
developments or otherwise acts in a manner inconsistent with
representing the Government's interest.
(c) If the injured party or his attorney fails to cooperate with
the claims office, the RJA is authorized to direct the MTF personnel to
withhold billing information and should vigorously pursue the
Government's right to recover. In addition, as outlined in 32 CFR
537.23, the RJA is authorized to direct the MTF to withhold release of
medical records until the injured party provides the statement and
other information required by Sec. 536.226(a)(2); the RJA may not,
however, direct the MTF to withhold medical records if the injured
party's attorney merely refuses to enter into a representation
agreement. In appropriate cases, the claims office should intervene in
pending litigation.
(d) If the injured party's attorney improperly withholds or
disburses money collected on behalf of the Government, the RJA should
immediately initiate action to recover the money owed through
litigation or through State disciplinary proceedings after appropriate
coordination in accordance with AR 27-40 and AR 27-1.
(e) Claims personnel may obtain an assignment from the injured
party or his attorney for the reasonable value of the care that the
United States provided if this will facilitate collection. The absence
of an assignment does not affect the Government's independence right
under the FMCRA, however, and an assignment is normally not necessary.
Recovering and Deposition on Claims
Sec. 536.227 The MTF Third Party Recovery Program (TPCP).
DOD Claims offices and MTFs manage complementary programs to
recover for medical care furnished at DOD expense. Pursuant to a
Memorandum of Agreement (MOA) between the Judge Advocate General and
The Surgeon General and understandings with Navy and Air Force
authorities, claims offices and MTF's support each other's recovery
programs.
(a) As provided in the MOA, claims offices will recover from
automobile insurers, while MTFs will recover from health benefits and
medicare supplemental insurance.
(b) As provided in the MOA, MTFs will obtain insurance and other
relevant information from persons receiving inpatient and outpatient
treatment for injuries resulting from an accident. MTF personnel will
also screen emergency room logs, clinic records, and patient admission
information to identify accident cases. MTFs will refer these cases to
claims offices in a timely manner, assist claims offices in obtaining
medical records and cost computations, and route requests for medical
records from injured parties and attorneys through the RJA.
(c) In return, claims offices will notify the MTFs of the final
disposition of cases referred, deposit money recovered under 10 U.S.C.
1095 to the operations and maintenance account of the MTF that provided
the care (see Sec. 536.231(d)), and report the amounts deposited to an
MTF's account on a monthly basis.
(d) As provided in the MOA, the head of each claims office may
enter into a local Memorandum of Agreement with his or her supporting
Army MTF commander. Such agreements should cover procedures, the degree
of staffing each office will provide, and time frames for providing
records or information. Such agreements may also provide for the MTF to
assist the claims office's medical care recovery effort, either by
giving back money deposited by the claims office into the MTF's
Operations & Maintenance fund to the claims office, or by providing
personnel or other support. Any personnel provided or money returned to
the claims office under such an agreement will only be used to support
affirmative claims collection efforts.
(e) If care was wholly or partly provided in an MTF on or after 5
November 1990 and recovery is possible from both a health benefits
insurer and an automobile insurer, the MTF will first attempt to
collect from the health insurer. If the MTF cannot recover the full
value of the Government's claim from the health insurer, the MTF will
foward the claim file to the installation claims office for collection
from the automobile insurer.
Sec. 536.228 Post demand procedures.
(a) Uninsured Motorists. If the tortfeasor is an uninsured
motorist, affirmative claims personnel will assert a demand against the
tortfeasor, and will request suspension of the tortfeasor's driving and
registration privileges under a State financial responsibility law if
the tortfeasor does not pay promptly. If collection from the tortfeasor
is not feasible, claims personnel will pursue recovery from any State
uninsured motorist's fund or, on a medical care claim, from the injured
party's uninsured motorist's coverage.
(b) Periodic review of pending claims. Whether or not the injured
party's attorney has agreed to assert the Government's claim, claims
personnel will review the status of pending claims every 60 days and
take follow-up action as appropriate. Claims personnel should
periodically contact the injured party's attorney to determine the
status of pending cases, and should call or send follow-up letters to
an insurer or tortfeasor who fails to respond to a demand or provides
an unacceptable response. Follow-up action should be documented on the
claims chronology sheet.
(c) Adjusting the amount asserted. The RJA should adjust the amount
asserted on a claim as further treatment is provided. The RJA should
delay settlement if it appears that extensive treatment is necessary or
should consider this in negotiating a settlement.
(d) Forwarding claims to higher authorities. The RJA or head of a
claims office will terminate action or will act on requests for waiver
or offers to compromise that are within his or her settlement authority
(see Sec. 536.216). If a higher settlement authority must act on the
claim, the RJA will forward a completed worksheet to the area claims
office (if that office has authority to take action) or to USARCS as
appropriate. When time is of the essence in securing a settlement, an
RJA may contact USARCS telephonically for authorization to waive or
compromise a claim. Prior to the expiration of the statute of
limitations, the RJA should contact USARCS for guidance on disposing of
any claim which cannot be recovered in full, compromised, terminated or
litigated.
Sec. 536.229 Settling affirmative claims.
Claims personnel will reflect the basis for any settlements other
than payment in full in the claims file. Note that under some
circumstances, settlement authority may not waive or compromise a claim
that he or she would normally have authority to act on (see
Sec. 536.216(g)).
(a) Payment in full. A settlement authority may settle a medical
care or property damage claim by recovering the full amount the
Government's claim as a lump sum, through installment payments, or as a
repair in kind on a property damage claim. An offer for the full amount
of available insurance would not ``pay in full'' a claim asserted for a
greater amount, and the RJA would have to follow compromise procedures.
(b) Compromise. (1) If there are difficulties in recovering on a
medical care or property damage claim (as defined by part 4 CFR part
103 of the Federal Claims Collection Standards), a settlement authority
may accept less than the amount asserted from a tortfeasor or insurer
for the convenience of the government. Acceptable bases for compromise
for the convenience of the government include inability of the
tortfeasor to pay, insufficient insurance, probability that the
government will be unable to prove its case, or collection costs which
are not commensurate with the amount being compromised.
(2) If the injured party or the injured party's attorney requests
waiver or compromise of a medical care claim, a settlement authority
may accept an amount less than the amount asserted to equitably
apportion the available funds and avoid undue hard-ship to the injured
party. To do so, the settlement authority must consider the fair value
of the injured party's claim, the future value of care provided by the
United States, and the potential recovery available. In evaluating a
request, the settlement authority may consider an offer by the injured
party's attorney to reduce his or her fee, but should not make this a
condition for granting a request. Prior to approval of any compromise
based on undue hardship, the injured party must provide the following
information:
(i) Detailed information on what funds are available for recovery.
(ii) Reasonable value of the injured party's claim for permanent
injury, pain and suffering, decreased earning power, and any other
items of special damages.
(iii) Military, VA, and Social Security disability, and any other
Government benefits accruing to the injured party.
(iv) Probability and amount of future medical expenses of the
Government and the injured party.
(v) Present and prospective assets, income, and obligations of the
injured party and those dependent on him or her.
(vi) A statement regarding the financial condition of the debtor.
(c) Termination of collection action. If there are difficulties in
recovering on a medical care or property damage claim (as defined by 4
CFR part 104.3 of the Federal Claims Collection Standards), a
settlement authority may close the claim without recovery for the
convenience of the Government. Acceptable bases for terminating
collection action include lack of legal merit to the claim, lack of
evidence to substantiate the claim, costs of recovery which will exceed
the amount recoverable, or inability to locate the debtor in instances
where the likelihood of collection is too remote to justify retention
of the file.
(d) Waiver. If the injured party or the injured party's attorney
requests waiver or compromise of the government's claim, a settlement
authority may close a medical care claim without recovery where
collection of any part of the government's claim will result in undue
hardship to the injured party. Prior to granting a request for waiver,
the settlement authority will consider the factors outlined in
Sec. 536.229(b)(2) and require the injured party to provide the items
listed in Sec. 536.229(b)(2) (i) thru (vii). Property damage claims
cannot be ``waived.''
Sec. 536.230 Litigation.
If a tortfeasor or insurer refuses to settle, or if an injured
party's attorney improperly withholds funds, the RJA must consider
litigation to protect the interests of the United States. Litigation is
particularly appropriate if a particular insurer consistently refuses
to settle claims, or if the Government's interests are not adequately
represented on a large claim.
(a) RJA's must maintain close contact with local U.S. Attorney's
offices to ensure that these offices are willing to initiate litigation
on cases. RJA's are encouraged to obtain appointments as Special
Assistant U.S. Attorneys.
(b) In order to directly initiate or intervene in litigation, an
RJA must prepare a litigation report and formally refer the case
through the Affirmative Claims Branch, USARCS and the Litigation
Division, OTJAG (as required by AR 27-40, chapter 5) to the U.S.
Attorney. While the RJA should attempt to initiate litigation well
before the expiration of the statute of limitations, the RJA may
contact USARCS telephonically if statute of limitations problems
necessitate quick action on a case. The RJA should also contact USARCS
if a U.S. Attorney is reluctant to pursue an important case. An injured
party's attorney may represent the Government's interest in litigation
without any special coordination.
(c) The Department of Justice requires all cases involving damage
to government property of $200,000 and under to go through the
Department of Justice Central Intake Facility in Silver Spring,
Maryland, before going to a United States attorney for litigation.
Forward the agency referral package cover sheet and all documentation
normally provided to the U.S. Attorney on all such cases to USARCS,
which in turn will forward them to the Central Intake Facility through
the Litigation Division, Office of the Judge Advocate General, as
appropriate.
Sec. 536.231 Administrative matters.
(a) Receipts. The RJA may provide a receipt for payment.
(b) Releases. The RJA may execute a release acknowledging that the
Government has received payment in full of the amount asserted or
compromise amount agreed upon, or the final installment payment; and
should try to use a release similar to the release printed as Figure 9-
1, DA Pam 27-162. The RJA may not, however, execute any kind of
indemnity agreement, nor may the RJA execute a release which prejudices
the Government's right to recover on other claims arising out of the
same incident without the approval of the Chief, Personnel Claims and
Recovery Division, USARCS. In addition, the RJA may not execute a
release that purports to release any claim that the injured party may
have other than for medical care furnished or to be furnished by the
United States. The RJA will not execute a release if the Government's
claim is waived or terminated.
(c) Depositing property damage recovery. (1) For damage to
appropriated fund property. Monies recovered for damage to appropriated
fund property will be deposited to Account 21R3019 (Recoveries for
Government Property Lost or Damaged).
(2) For damage to NAFI property. Monies recovered for damage to
NAFI property will be returned to the NAFI. If the NAFI no longer
exists, forward the money to HQDA (DAAG-NAF), Alexandria, VA 22331-
0321. Checks should be made out to the NAFI, or, if it no longer
exists, to the Army Morale, Welfare, and Recreation Fund.
(3) For damage to Army Stock Fund or Defense Business Operations
Fund property. Monies recovered for damage to property belonging to one
of these funds will be returned to that fund unless the fund has
charged the cost of repair or replacement to an appropriated fund
account. The Defense Business Operations Fund replaced the Army
Industrial Fund.
(d) Depositing medical care recovery. (1) To an MTF account. CONUS
and OCONUS claims offices and command claims services will deposit
money recovered from an automobile insurer for medical care provided in
an MTF on or after 5 November 1990 in the Operations & Maintenance
account of the Army, Navy or Air Force MTF that provided the care.
Offices will deposit money recovered from all types of automobile
insurance, including liability insurance, to MTF accounts.
(2) To the General Treasury. Money recovered directly from
tortfeasors, from workers' compensation funds, from insurance other
than automobile insurance (such as homeowner's insurance), from
automobile insurers for care provided in an MTF prior to 5 November
1990, or from automobile insurers for care provided in a civilian
hospital will be deposited in the Miscellaneous Receipts Account,
21R3210.
(3) Apportioning medical care recovery between accounts. Only money
recovered under the provisions of 10 U.S.C. 1095 can be deposited into
an MTF account. Claims offices will often have to apportion money
recovered among different accounts.
(i) Apportioning money between MTF accounts and the General
Treasury. Deposit money recovered from an automobile insurer for care
provided prior to 5 November 1990 or provided in a civilian hospital to
the General Treasury. Deposit money recovered for care provided in an
MTF after that date to the MTF's account. If the amount recovered is
less than the amount asserted, deposit money to the MTF's account
first, and deposit any remaining money to the General Treasury.
(ii) Apportioning money between two or more MTF accounts. If care
was provided by two or more MTF's on or after 5 November 1990, and the
claims office recovers less than the amount asserted, the claims office
should give each MTF a pro rata share of the money recovered. For
example, if MTF1 provided $2,000 worth of care and MTF2 provided $1,000
worth of care, the claims office will deposit $800 of a $1,200 recovery
to MTF1's account and the remaining $400 to MTF2's account.
(e) Fiscal Integrity. Field claims offices must reconcile the
property damage and medical care recovery accounts with their servicing
finance and accounting offices. Field claims offices must ensure that
their deposits have been credited to the proper accounts at least on a
quarterly basis, and all accounts must be reconciled at the end of the
fiscal year.
Subpart N--Claims Office Administration
Records and File Management
Sec. 536.232 Records.
Unless otherwise required by this part, claims JAs and claims
attorneys charged with the responsibility for claims administration
will maintain only such current and temporary records as are required
for the administration of claims activities and for the preparation of
prescribed reports. Basic records for each claims office are--
(a) DA Form 1667 (Claims Journal (Personnel) (Tort) (Affirmative)
Claims). Journals will be individually maintained for personnel claims,
for affirmative claims, and for tort and special claims, corresponding
to the automated claims data management programs for such claims, using
the April 1988 version of this form. Each event requiring entry in the
journal will be recorded immediately upon receipt of information as to
its occurrence. Use of the journal for personnel claims is optional,
although modified use is highly recommended.
(b) Automated claims data base. The automated claims data base will
be used for all claims opened in fiscal year 1988 or later, and earlier
year claims if they involve expenditures of funds in fiscal year 1988
or later, as follows:
(1) Tort and Special Claims Management data base (all offices);
(2) Personnel Claims Management data base (all offices except COE
claims offices).
(3) Affirmative Claims Management data base (all offices except COE
claims offices).
(c) Investigative files. A claims office will maintain separate
investigative files on potentially compensable events (PCE) for every
incident which it (or a unit claims officer) has investigated, or has
received a copy of a report of incident or report of investigation from
a unit claims officer or any other source. Similar files will be
maintained for incidents investigated by a claims office or other Army
official that might give rise to an affirmative claim in favor of the
Army. The investigative file will be merged into a claims file when a
claim is filed or asserted. Investigative files not otherwise merged
into a claims file will be retained until transferred to another Army
claims office or until the time for filing a claim has expired.
Sec. 536.233 Arrangement of claims files.
Instructions on the arrangement of claims files are found in
Sec. 536.196 and in DA Pam 27-162. Every file for a claim against the
United States must ultimately contain the following:
(a) For files processed under the automated claims data management
system, a printout (i.e., ``paper screen'') of the automated data
pertaining to that claim.
(b) If the claim has been paid in whole or in part, a copy of the
settlement agreement, if any, and the certified copy of the paid
voucher (comeback copy from the finance and disbursing office).
(c) The action or recommendation.
(d) The claim (initial and any amendment).
(e) The report of claims officer, with exhibits.
Sec. 536.234 Disposition of claims files.
(a) The Commander, USARCS, is the proper authority for post
settlement review of claims against the United States. Claims having
the following file numbers under AR 25-400-2 will be forwarded to
USARCS (subject to the provisions of b and c below) for disposition
under the regulation: 27-20a, 27-20g, 27-20h, 27-20i, 27-20j, or 27-
20q. Claims having other 27-20 file numbers will be disposed locally
according to the instructions in AR 25-400-2.
(b) Files of completed tort claims will not be forwarded to the
Commander, USARCS prior to the expiration of any appeal period or the
6-month period for filing suit, as applicable. The file of a tort claim
in which an award that is final is not accepted by the claimant, within
a reasonable time, will also be forwarded.
(c) For personnel claims involving recovery action, claims files
will be assembled and processed for local recovery action or forwarded
for centralized recovery action in accordance with DA Pam 27-162,
chapter 3, Secs. 536.195 and 536.196. After completion of final
recovery action by field claims offices or command claims services such
files will be forwarded to USARCS for retirement.
(d) Files will be administratively closed as abandoned or withdrawn
and forwarded to the Commander, USARCS, as provided herein.
(1) Personnel claims. Claims under subpart K will be
administratively closed as abandoned in the following situations:
(i) The claimant affirmatively withdraws or abandons the claim
prior to adjudication. Such files will contain evidence of the
claimant's intention to do so, such as a letter from the claimant or a
memorandum of a telephone conversation with the claimant.
(ii) The claimant cannot be located to be paid or, if the claim is
not fully substantiated, to have his or her intentions with regard to
the claim ascertained (but, see paragraph (d)(1)(iv) of this section).
(iii) For other reasons, final action on the claim cannot be taken.
(iv) When a claimant has neither affirmatively abandoned nor fully
substantiated a claim cognizable under subpart K, he or she should be
directed by certified mail to provide the required substantiation
within a specified period, usually 30 days. If correspondence is
returned as undeliverable, and the claimant is an active duty service
member, a current military address can usually be obtained from the
Commander, U.S. Army Enlisted Records and Evaluation Center, Army
Worldwide Locator Service, ATTN: PCRE-RF, Fort Benjamin Harrison, IN
46249-5301. If the claimant fails to respond, to the extent that the
claim is substantiated and meritorious it should be paid; otherwise, it
should be disapproved.
(2) Tort claims. Each file will contain evidence of claimant's
intention to withdraw or abandon the claim, such as a letter or a
memorandum for record of a telephone conversation with claimant.
(i) Before apparently abandoned claims are forwarded to USARCS, a
certified letter should be sent to the claimant requesting, his/her
intentions within a specified period, usually 30 days. If no reply is
received within a reasonable time, usually 30 days, the files may be
closed and forwarded to USARCS, except as follows:
(ii) Tort claims under subparts D, E and F. Additionally, a
paragraph of the letter should state that failure to respond will
result in the presumption that the claim is abandoned. Further, it
should be stated that if the claimant is dissatisfied with the action
taken, the claimant may file suit in an appropriate United States
District Court no later than six months from the date of mailing of the
letter, or the claimant's remedy will be forever barred.
(iii) In tort claims under subpart C, the last paragraph should
advise the claimant that failure to respond will result in the
presumption that the claim is abandoned, and that if the claimant is
dissatisfied with the action taken, the claimant has a right to appeal
the action for a review and final decision. Further, it should be
stated that the claimant only has 60 days to submit such an appeal.
(iv) Only after each of the above actions has been completed, may a
tort claim be considered to be abandoned, and be forwarded to USARCS
for retirement. If correspondence to a claimant is returned as
undelivered, and the claimant is an active duty service member, a
current military address can usually be obtained from the Commander,
U.S. Army Enlisted Records and Evaluation Center, Army Worldwide
Locator Service, ATTN: PCRE-RF, Fort Benjamin Harrison, IN 46249-5301.
Sec. 536.235 Retrieval of claims files.
(a) Field claims offices will occasionally have need of a file that
has been sent to USARCS for centralized recovery or retirement (for
example, action on a ``late'' reconsideration request). When requesting
the return of a file from USARCS (either in writing or telephonically),
the requesting office must provide--
(1) The claim number.
(2) The claimant's name.
(3) The date the file was forwarded to USARCS.
(4) The name of the TGBL carrier (if the claim was a household
goods or holdbaggage shipment claim).
(5) Whether the file was forwarded for retirement or centralized
recovery.
(6) The reason the file is being requested.
(b) If USARCS has already acted on a request for reconsideration on
a personnel claim, the file will not be returned to a field office for
action on a second request for reconsideration. In such cases, the
request will be sent to USARCS for action.
Sec. 536.236 Certified and registered mail.
Correspondence to claimants and/or their attorneys denying or
making final offers in tort claims under subparts C, D, E, F, G, H, and
L or the transmittal of an abandonment notice will be accomplished by
certified or registered mail, return receipt requested. The return
receipt (green card), upon its return to the claims office, will be
retained as a part of the claims file as proof of receipt by the
claimant or other addressee.
Sec. 536.237 Maintenance of claims files.
(a) The contents of each claim file for claims against the United
States will be placed in a standard 9\1/4\ inch by 11\3/4\ inch manila
folder. The name of the claimant, exactly as entered into the automated
claims management data base, will be placed on the top-left portion of
the file folder. The complete nine-digit computer-generated claim
number displayed in the automated database will be placed on the
extreme top right-hand side of the folder. The fiscal year, office
code, and claim sequence number will be separated by a dash mark
(example, ``88-011-0079''). Both name and claim file number entries on
the manila file folder will be printed legibly in blue-black ink. The
claim file should be stapled together before inserting in the file
folder; however, the file need only be placed in the folder without
stapling to the file folder.
(b) Investigative files will also be maintained in manila folders.
The date of the incident and general descriptive data (for example, ``1
Jul 86/auto accident (1st and Elm, Smallville)'' or ``24 Sep 86/heart
operation (Jones, John M.)'') will be placed on top-left portion of the
file folder.
(c) AR 25-400-2 requires labeling of file folders and containers
with specific information. In complying therewith, the following
guidance is provided:
(1) Only the ``dummy'' or ``lead'' folder will contain the
disposition instructions required by AR 25-400-2, for files that have a
common disposition.
(2) When labeling individual file folders, only the information
required by AR 25-400-2 will be typed on the label. The label will be
placed on the top center portion of the folder. Under no circumstances
will the information concerning the claim (see paragraph (a) of this
section) be placed on this label.
Monthly Claims Reporting System
Sec. 536.238 General.
(a) The Personnel Claims Management Program, the Affirmative Claims
Management Program, and the Tort and Special Claims Management Program
are the automated programs which generate a monthly status report on
claims against the United States and recovery actions. Specific
instructions pertaining to the USARCS Claims Automation Program are
contained in DA PAM 27-162, chapter 1 and in documentation provided
with the automation software.
(b) The data contained in the USARCS Claims Automation Program and
the monthly claims office status reports generated by the automation
software provide the data necessary to make sound management decisions
by claims officers, by heads of area claims offices, by SJAs
responsible for OCONUS command claims services, and by the Commander,
USARCS. The system provides a uniform method of assignment of claim
file numbers to permit identification and retrieval of individual claim
files, identifies delay in claims processing, and permits worldwide
management control of all claims against the Government. The automated
monthly reports forwarded to USARCS provide the data base used for the
preparation of claims budgetary status reports and periodic budget
estimates to the USAFAC as well as to the Office of the Assistant
Secretary of the Army (Financial Management). It is the responsibility
of all claims office personnel to ensure that automated claims records
are complete and accurate.
(c) This section does not apply to the reporting of reimbursement
obligations to foreign countries pursuant to the NATO-SOFA or other
similar treaties or agreements.
(d) The Commander, USARCS, will furnish software and documentation
for the Personnel Claims Management Program, the Affirmative Claims
Management Program, and the Tort and Special Claims Management Program,
with updated versions as required. These are the only programs
authorized for recording and reporting claims in the Army Claims
System. Local modification of these programs is not authorized.
Sec. 536.239 Reporting requirements.
The head of each area claims office and command claims service will
ensure that a monthly computer-generated claims report is prepared for
each claims office with an office code within his or her area of
responsibility and for each Foreign Claims Commission using the
automation programs provided by USARCS. The report(s) (tort claims
only) and diskettes containing current claims data base(s) (for all
programs) will be posted to USARCS by the fifth calendar day of the
month. In addition, a copy of any archive disk prepared during the
reporting period will be forwarded for processing. Whenever possible,
the data should be sent using a modem or other electronic data transfer
system. Claims offices under the jurisdiction of a command claims
service will forward their report(s) and diskettes through the command
claims service and will comply with any additional reporting
requirements of the command claims service. Diskettes must be marked
with the office name, the office code, the type of claim record, the
disk sequence number, the month and year, and the data base file
name(s) contained in the diskette (for example, Fort Blank, 001, Tort
Claims, 1 of 1, Mar 89, T9000103.1DB). Detailed instructions on the
preparation of the monthly automated claims report and claims data
diskettes are contained in DA PAM 27-162, chapter 12 and program
documentation. If there are no changes from the previous month in the
Affirmative Claims reports, the Personnel Claims report, or the Tort
and Special Claims report, a negative report will be submitted within
the stated time guidelines.
Sec. 536.240 Error reports.
USARCS will provide field claims offices with monthly error reports
listing claims records that cannot be loaded into the USARCS data base
due to data entry errors or omissions. Errors listed on the error
reports must be corrected as soon as possible; resubmission of the
corrected claims records will occur at the time of the next regular
monthly reporting cycle.
Sec. 536.241 Preparation.
(a) Reporting. Quarterly, each command claims service or office
authorized to assert affirmative claims will submit a copy of the
``Previous Three Months'' report generated by the Affirmative Claims
Management Program to USARCS, ATTN: JACS-PCA. Command claims services
and offices will identify these reports by quarter and fiscal year
(i.e., ``1st Qtr, FY 93'') and forward them so that they arrive not
later than the 7th calendar day of every quarter (i.e., 7 January, 7
April, 7 July, and 7 October each year). Offices authorized to assert
affirmative claims which have no affirmative claims activity in a given
quarter will forward negative reports.
(b) Routing. Area claims offices and claims processing offices will
forward these reports directly to USARCS through the senior Judge
Advocate in the office, for example, the SJA. Claims processing offices
will forward an additional copy to their area claims offices.
(c) Special preparation instructions. Offices may manually correct
any errors in the computer generated report using the following
guidelines:
(1) Claims first asserted in an indefinite amount will be reported
in the period in which a reasonably accurate figure can first be
determined.
(2) When reporting the number of claims collected during the report
period, only the first collection will be counted for claims in which
payments are received in installments.
(3) When reporting the total dollar amount collected during the
reporting period, include any installments. The dollar value of any
replacement or property repair should be included in the total with the
replacement or repair value portion noted.
Management of Claims Expenditure Allowance (CEA)
Sec. 536.242 General.
Each claims settlement or approval authority which is furnished a
CEA by the USARCS budget office is responsible for managing that CEA.
This includes knowing at all times how much of the CEA has been
obligated, the remaining balance and a monthly assessment of whether
the balance will cover claims obligation needs in the local office for
the remainder of the current fiscal year.
Sec. 536.243 CEA reporting requirements.
(a) Each CONUS claims office having a CEA and command claims
services will submit, to arrive not later than the 7th calendar day of
every month, a report to USARCS, ATTN: JACS-BI, that includes the
following:
(1) The office code of the reporting office.
(2) Dollars obligated for personnel and tort claims during the
prior month and the number of personnel and tort claims paid.
(3) Dollars obligated for personnel and tort claims fiscal year to
date (through the end of the prior month) and the total number of
personnel and tort claims paid fiscal year to date.
(4) Dollars deposited during the prior month.
Note: Ensure that the report of dollars deposited for the month
and year to date includes only funds deposited is one of the claims
appropriation accounts. Do not include money recovered through the
affirmative claims program and deposited with miscellaneous receipts
of the U.S. Treasury.)
(5) Dollars deposited year to date through prior month. (See note
at paragraph (a)(4) of this section.)
(b) The report submitted at the beginning of August every year will
also include the following:
(1) The total CEA furnished to that office up to that time (initial
CEA plus or minus any changes).
(2) The CEA balance.
(3) The amount the office expects to be able to obligate in the
remaining 2 months of the fiscal year if sufficient funds are
available.
(4) The expected surplus or shortfall.
(5) A proposed CEA for the next fiscal year and the rationale for
any unusual increases.
(c) Reports may be submitted telephonically or by facsimile.
Sec. 536.244 Solatia payment.
Payment of solatia in accordance with local custom as an expression
of sympathy toward a victim or his or her family is common in overseas
commands (see DA PAM 27-162, chapter 8). Such payments are not to be
made from the claims CEA. These payments are made from local operation
and maintenance funds pursuant to directives established by the
appropriate commander for the country concerned. This applies even
where a command claims service is directed to administer the command's
solatia program.
Appendix A to Part 536--References
Publications and forms referenced in this Appendix may be
obtained from the National Technical Information Services, U.S.
Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161.
Required Publications
A required publication is a publication that the reader must
have to understand the subject.
AR 15-6--Procedures for Investigating Officers and Boards of
Officers
AR 27-40--Litigation
DA Pam 27-162--Claims
DOD 4500.34-R--Personal Property Traffic Management Regulation
Related Publications
A related publication is merely a source of additional
information. The user does not have to read it to understand this
regulation.
AFARS--Army Federal Acquisition Regulation Supplement
AR 1-75--Administrative and Logistical Support of Overseas Security
Assistance Organizations
AR 10-72--Field Operating Agencies of the Judge Advocate General
AR 25-400-2--The Modern Army Recordkeeping System (MARKS)
AR 27-3--Legal Assistance
AR 27-60--Patents, Inventions, and Copyrights
AR 37-100--Account/Code Structure
AR 37-103--Disbursing Operations for Finance and Accounting Offices
AR 37-104-3--Military Pay and Allowances Procedures: Joint Uniform
Military Pay System Army (JUMP-ARMY)
AR 37-104-10--Military Pay and Allowance Procedures for Reserve
Components of the Army
AR 37-107--Accounts Payable
AR 37-108--General Accounting and Reporting for Finance and
Accounting Offices
AR 40-1--Composition, Mission, and Functions of the Army Medical
Department
AR 40-3--Medical, Dental, and Veterinary Care
AR 40-16--Special Notification-Injury Cases
AR 40-66--Medical Record and Quality Assurance Administration
AR 40-121--Uniformed Services Health Benefits Program
AR 55-19--Marine Casualties
AR 55-80--Highways for National Defense
AR 60-20--Army and Air Force Exchange Service (AAFES) Operating
Policies
AR 190-9--Military Absentee and Deserter Apprehension Program
AR 190-22--Searches, Seizures and Disposition of Property
AR 215-1--Administration of Army Morale, Welfare, and Recreation
Activities and Nonappropriated Fund Instrumentalities.
AR 215-2--The Management and Operation of Army Morale, Welfare, and
Recreation Activities and Nonappropriated Fund Instrumentalities
AR 335-15--Management Information Control System
AR 340-17--Release of Information and Records from Army Files
AR 340-21--The Army Privacy Program
AR 405-15--Real Estate Claims Founded Upon Contract
AR 600-8-1--Army Casualty and Memorial Affairs and Line of Duty
Investigations
AR 608-10--Child Development Services
AR 735-5--Basic Policies and Procedures for Property Accounting
DODD 5220.6--Defense Industrial Personnel Security Clearance Review
Program
DODD 5515.3--Settlement of Claims Under 10 U.S.C. 2733 and 2743, as
amended
DODD 5515.8--Single Service Assignment of Responsibility for
Processing of Claims
DODD 5515.10--Settlement and Payment of Claims Under the Military
Personnel and Civilian Employee Claims Act of 1964
DODD 6000.6--Medical Malpractice Claims Against Military and
Civilian Personnel of the Armed Forces
DODD 7045.13--DOD Credit Management and Debt Collection Program
DOD Manual 4525.6-M--DOD Postal Manual
FAR--Federation Acquisition Regulation
JTR--Joint Travel Regulations
Prescribed Forms
DA Form 1208--Report Of Claims Officer
DA Form 1666--Claims Settlement Agreement
DA Form 1667--Claims Journal for (Personnel) (Tort) (Affirmative)
Claims
DA Form 1668--Small Claims Certificate
DA Form 2938-R--Affirmative Claims Report
DD Form 1840--Notice of Loss or Damage
DD Form 1840R--Notice of Loss or Damage
DD Form 1841--Government Inspection Report
DD Form 1842--Claim for Loss of or Damage to Personal Property
Incident to Service
DD Form 1843--Demand on Carrier/Contractor
DD Form 1844--List of Property and Claims Analysis Chart
DD Form 2526--Case Abstract for Malpractice Claims
Standard Form 95--Claims for Damage, Injury or Death
Standard Form 1034--Public Voucher for Purchases and Services Other
than Personal
Standard Form 1145--Voucher for Payment Under Federal Tort Claims
Act
Referenced Forms
DA Form 1863-1--Services and/or Supplies Provided by Civilian
Hospitals
DA Form 2135-R--Receipt for Payment (LRA)
DA Form 2631-R--Medical Care-Third Party Liability Notification
(LRA)
DA Form 2985--Admission and Coding Information
DA Form 3154--MSA Invoice and Receipt
DD Form 619-1--Statement of Accessorial Services Performed
DD Form 1164--Service Order for Personal Privacy
DD Form 1348-1--DOD Single Line Item Release/Receipt Document
Standard Form 1049--Public Voucher for Refunds
Appendix B to Part 536--Glossary
Abbreviations
AAFES--Army-Air Force Exchange Service
ADP--automated data processing
AFARS--Army Federal Acquisition Regulation Supplement
ALR--American Law Reports
ARNG--Army National Guard
AWOL--absent without leave
CHAMPUS--Civilian Health and Medical Program of the Uniform Services
CMCHS--Civilian-Military Contingency Hospital System
COE--Chief of Engineers
CONUS--continental United States
DA--Department of Army
DOD--Department of Defense
FAR--Federal Acquisition Regulation
FCA--Foreign Claims Act
FCC--family child care
FECA--Federal Employees Compensation Act
FTCA--Federal Tort Claims Act
GAO--Government Accounting Office
GBL--Government bill of lading
GSA--General Services Administration
ITGBL--international through Government bill of lading
JA--judge advocate
JTR--Joint Travel Regulations
MAAG--Military Assistance and Advisory Group
MACOM--major Army command
MCA--Military Claims Act
NATO--North Atlantic Treaty Organization
NG--National Guard
NGB--National Guard Bureau
NGCA--National Guard Claims Act
NTS--nontemporary storage
POV--privately owned vehicle
PPGBL--personal property Government bill of lading
RCP--replacement cost protection
RIMP--risk management program
RJA--recovery judge advocate
ROTC--Reserve Officer's Training Corps
SJA--staff judge advocate
SOFA--Status of Forces Agreement
SPCMCA--special court-martial convening authority
TAJAG--The Assistant Judge Advocate General
TDA--table of distribution and allowances
TDY--temporary duty
TGBL--through Government bill of lading
TJAG--The Judge Advocate General
UCMJ--Uniform Code of Military Justice
USAFAC--U.S. Army Finance and Accounting Center
USAR--U.S. Army Reserve
USARCS--U.S. Army Claims Service
USAREUR--U.S. Army, Europe
USARSO--U.S. Army South
VA--Department of Veterans Affairs
WESTCOM--U.S. Army Western Command
Terms
Affirmative Claims
The Government's statutory right to recover money, property, or
repayment in kind incurred as a result of property loss, damage, or
destruction by any individual, partnership, association, or other
legal entity, foreign or domestic, except an instrumentality of the
United States. Also, the Government's statutory right to recover the
reasonable medical costs expended for hospital, medical, surgical,
or dental care and treatment (including prostheses and medical
appliances) incurred under circumstances creating tort liability
upon some third person.
Civilian employee
A person whose activities the Government has the right to direct
and control, not only as to the result to be accomplished but also
as the means used. This includes, but is not limited to, full-time
Federal civilian officers and employees. This term should be
distinguished from ``independent contractor'' for whose actions the
Government generally is not liable. The decision as to who is a
civilian employee is a Federal question determined under Federal,
not under local law.
Claim
A demand for payment of a specified sum of money (other than the
ordinary obligations incurred for services, supplies, or equipment)
and, unless otherwise specified in this regulation, in writing and
signed by the claimant or a properly designated representative.
Claim file
A file containing the report of the claims officer or other
report of investigation, supporting documentations, and pertinent
correspondence.
Claim approval authority
Except for claims under subpart G, I, and K and subject to any
limitations found in specific provisions of this regulation, the
authority to approve and pay a claim in the amount presented or in a
lesser amount upon the execution of a settlement agreement by the
claimant. Under subpart K the authority of a designated Government
agent to adjudicate and pay a claim in a meritorious amount within
the monetary limits prescribed in that subpart. A person with
approval authority may not disapprove a claim in its entirety or to
make a final offer subject to any limitations found in specific
provisions of this regulation.
Claim settlement authority
The authority to approve a claim, deny a claim in its entirety,
or make a final offer subject to any limitations found in specific
provisions of this regulation.
Claims attorney
A DA or DOD civilian attorney assigned to a judge advocate or
legal office who has been designated by the Commander, U.S. Army
Claims Service.
Claims judge advocate
An officer of the Judge Advocate General's Corp designated by a
command or staff judge advocate to be in immediate charge of claims
activities of the command.
Claims officer
A commissioned officer, warrant officer, or qualified civilian
employee detailed by the commander of an installation or unit who is
trained or experienced in the investigation of claims.
Claimant
An individual, partnership, association, corporation, country,
state, territory, or other political subdivision of such country. It
does not include the U.S. Government or any of its
instrumentalities, except as prescribed by statute. Indian tribes
are not proper party claimants but individual Indians can be
claimants.
Combat activities
Activities resulting directly or indirectly from action by the
enemy, or by the U.S. Armed Forces engaged in, or in immediate
preparation for, impending armed conflict.
Disaster
A sudden and extraordinary calamity occasioned by activities of
the Army, other than combat, resulting in extensive civilian
property damage or personal injuries and creating a large number of
potential claims.
Federal agency
A Federal agency includes executive departments and independent
establishments of the United States and corporations acting as
instrumentalities or agencies of the United States but does not
include any contractor with the United States.
Final offer
An offer of payment by a settlement authority in full and final
settlement of a claim which, if not accepted, constitutes a final
action for purposes of filing suit under subpart D or filing an
appeal under subpart C or F provided such offer is made in writing
and meets the other requirements of a final action as set forth in
this regulation.
Government vehicle
A vehicle owned or on loan to any agency of the U.S. Government,
or privately owned and operated by a member or civilian employee of
the Army in the scope of his or her office or employment with the
U.S. Government, including vehicles being operated on joint
operations of the U.S. Armed Forces.
Medical claims judge advocate
A judge advocate assigned to an Army Medical Center, under an
agreement between The Judge Advocate General and The Surgeon
General, to perform the primary duty of investigating and processing
medical malpractice claims.
Medical claims investigator
A senior legal specialist or qualified civilian assigned to
assist a medical claims judge advocate on a full-time basis. A
medical claims investigator is authorized to administer oaths under
the provisions of Article 136(b)(7), Uniform Code of Military
Justice, when performing his or her investigative duties.
Medical malpractice claim
A claim arising out of substandard or inadequate care of an Army
patient.
Military personnel
Members of the Army on active duty for training or inactive duty
training as defined in AR 310-25 and 10 U.S.C. 101(22), 101(23), and
101(30). This includes members of the District of Columbia Army
National Guard while performing active duty or training under 32
U.S.C. 316, 502, 503, 504, or 505.
Noncombat activities
Authorized activities essentially military in nature, having
little parallel in civilian pursuits, and which historically have
been considered as furnishing a proper basis for payment of claims.
Examples are practice firing of missiles and weapons, training and
field exercises, and maneuvers which include the operation of
aircraft and vehicles, use and occupancy of real estate, and
movement of combat or other vehicles designed especially for
military use. Activities excluded are those incident to combat,
whether in time of war or not, and use of military personnel and
civilian employees in connection with civil disturbances.
Personal property
Property consisting solely of corporeal personal property, that
is, tangible things.
Kenneth L. Denton,
Army Federal Register Liaison Officer.
[FR Doc. 94-29167 Filed 12-9-94; 8:45 am]
BILLING CODE 3710-08-M
